Wanton abuse of power by Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose in appointing a Private Counsel as ‘Amicus Curiae’ instead of the Attorney General/Solicitor General of India as mandated by Rule 10 of the Supreme Court Rules, 1975.
Adv. Siddharth Luthra guilty of misappropriation of funds of the Supreme Court by joining the conspiracy by allowing himself to be appointed as an Amicus as against Supreme Court Rules in a contempt of court matter
⮚ As per the Rules, Bench had a choice of appointing either Attorney-General or Solicitor General as an Amicus Curiae in the Contempt Cases.
⮚ The order appointing an ineligible Adv. Siddharth Luthra as an Amicus and entitling him to claim fee from the government is misappropriation of public funds and is an offence under Sec. 409, 120 (B), 109 & 34 of I.P.C. on the part of Justice Deepak Gupta, Justice Aniruddha Bose and Adv. Siddharth Luthra.
Adv. Vivek Ramteke
Chairman
All India SC, ST & Minority
Lawyers Association
Mursalin Shaikh
Secretary
Supreme Court & High Court
Litigants Association of India
⮚ Law is clear that the trial under Contempt if conducted by a private counsel instead of Govt. Law Officer, is against the Supreme Court Rules and therefore stands vitiated.
⮚ Court record shows that Justice Deepak Gupta threatened Counsel for Respondent No. 1 and warned him not to raise any objection against illegalities and offences committed by Mr. Siddharth Luthra.
Justice (Retd.) Deepak Gupta and Justice Aniruddha Bose are being prosecuted by the Chairmn of Supreme Court and High Court Litigant’s Association of India (SCHCLAOI) , under Sec. 409, 420, 219, 218, 120 (B) & 34 of I.P.C. for conspiracy, abetment & attempt to misappropriate the Supreme Court funds by siphoning through co-conspirator Sr. Adv. Siddharth Luthra.
Accused Sr. Adv. Siddharth Luthra
1.1 In a similar case of criminal breach of trust , Justice Soumitra Sen of Calcutta High Court was dismissed. In another case of misappropriation of Court Funds, charge-sheet is filed by C.B.I. against six-Judges of Allahabad High Court.
1.2 Recently, Jusice S. N. Shukla was chargesheeted and his entire judicial work was withdrawn for passing an order to give undue advantage to an undeserving person by ignoring binding precedents of the Supreme Court. A Judge cannot think in terms of "what pleases the Prince has the force of law”. He is expected to be guided by the established norms of judicial process and decorum. While setting aside the said illegal order it is observed by the Supreme Court in the case reported as Medical Council (2016) SCC as under;
“A Judge cannot think in terms of "what pleases the Prince has the force of law".
A Judge should abandon his passion. He must constantly remind himself that he has a singular master "duty to truth" and such truth is to be arrived at within the legal parameters. No heroism, no rhetorics.
We strongly deprecate the tendency of the courts in not applying the settled principles and in passing whimsical orders which necessarily has the effect of granting wrongful and unwarranted relief to one of the parties. It is time that this tendency stops.
A person who conceived the idea of paving the path of his own desire, moving according to his design, proceeding as per his whim and marching ahead with brazenness abandoning any sense of prudence cannot be leniently dealt with. It is the duty of the Court to take stringent action, for he has polluted the purity attached to the justice dispensation system and sullied the majesty of law.”
BRIEF FACTS OF THE CASE :-
2.1 That the Bench of Justice Deepak Gupta and Justice Aniruddha Bose, in a Suo-Motu Criminal Contempt Case No. 02 of 2019 in the case of Re: Vijay Kurle, vide order dated 30.09.2019 had appointed Sr. Adv. Siddharth Luthra as Amicus Curiae.
The order dated 30.09.2019 reads thus;
“We appoint Shri Siddharth Luthra, Senior Advocate, as Amicus Curiae to assist the Court. He is also permitted to appoint one junior Advocate of his choice to assist him. ”
The order dated 27.04.2020 reads thus;
“2. …….
On the same date, we appointed Shri Siddharth Luthra, learned Senior Counsel, as amicus curiae to assist the Court”
2.2. That, both the Ld. Judges in the order dated 27.04.2020 had admitted that, the proceeding under Contempt has to be conducted as per the Rules. It reads thus;
“17. This Court has framed rules in this regard known as the Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975 ( for short ' the Rules' ) …….
19. These Rules have been framed by the Supreme Court in exercise of the power vested in it under Section 23 of the Contempt of Courts Act, 1971 and they have been notified with the approval of Hon'ble the President of India.
29. Therefore, the only requirement is to follow a procedure which is just, fair and in accordance with the rules framed by this court.”
2.3. However as per Rule 10 of ‘The Rules to Regulate proceedings for Contempt of the Supreme Court, 1975’ the Suo- Moto contempt proceedings can be conducted by the Bench itself or with the assistance only two Government law offices i.e. either Attorney General of India or Solicitor General of India are permitted to assist the Court.
2.4. In S.K. Sundaram vs Unknown 2001 (2) SCC 171while dealing with the objection relating to the appointment of Shri Harish N. Salve, learned Solicitor General of India as Amicus to assist the court observed that;
“ As per Supreme Court of India Rules to Regulate Proceedings for Contempt of the Supreme Court, 1975". Rule 10 says: "The Court may direct the Attorney General or Solicitor General to appear and assist the Court."
2.5 This rule and procedure of appointing Attorney General as Amicus in Contempt cases is followed by the Constitution Benches of the Supreme Court. Such as:
i. Re: C.S. Karnan (2017) 2 SCC 757 (1), (Seven Judge Bench)
ii. Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344 (Five Judge Bench)
iii. Supreme Court Bar Association Vs. Union of India (1998) 4 SCC409 (Five Judge Bench)
iv. Dr. L.P Mishra (1998) 7 SCC 379 (Full
Bench)
v. Re: Vinay Chandra Mishra (1995) 2 SCC 584 (Full Bench)
2.6 Constitution Bench in Subramanian Swamy Vs. Arun Shourie (2014) 12 SCC 344 para 4 & 5 had followed the procedure of calling for an opinion of Attorney general even before issuing show cause notice for contempt in suo-motu contempt under Art. 129 of the Constitution. The Bench had issued notice to Attorney General to assist the Court.
2.7 Supreme Court in P. C. Sethi (1979) 4 SCC 797, ruled as under;
Contempt of court - Attorney-General on direction of Court filing report finding no contempt or violation of Court's order - Petition disposed of.
2.8 In P. N. DUDA (1988) 3 SCC 167 it is observed that, when Attorney General and Solicitor General were ‘party respondent’ in the case, therefore the Court had no option but to call First Additional Solicitor General as an Amicus Curiae. It was observed that in the first place the role of the Attorney General/Solicitor General is more akin to that of an amicus curiae to assist the court.
“ Attorney General and Solicitor General of India in respect of this Court occupy positions of great importance and relevance. Attorney General, though unlike England is not a member of the Cabinet yet is a friend of the Court, and in some respects acts as the friend, philosopher and guide of the Court. (See Art. 76 of the Constitution). ”
2.9 The role of Government law officer and its status is always at a different footing and can never be equated with a Private Counsel. The Attorney General cannot be on the same footing with that of a private advocate like Siddharth Luthra. [Deepak Agarwal Vs. Keshav Kaushik (2013) 5 SCC 277, O. P. Chakravarty 1971 Cr. L. J.]
2.10 In Dr. Janardan Prasad Gupta Vs. Dr. O.P. Chakarvarty, 1974 SCC OnLine All 358, it is ruled that;
“ The Advocate-General holds a high status and is supposed to act impartially in coming to a conclusion whether or not he should move the Court under Section 15 ……....
An ordinary citizen cannot belong to that group. Contempt proceeding dismissed. “
2.11 Nine Judge Bench of Supreme Court of US in Young v. United States ex rel. Vuitton et Fils S. A., 481 U.S. 787, had ruled as under;
“ Contempt – Court’s right to appoint private Special Prosecutor - the t court could appoint a private attorney to prosecute a contempt case only when the government declined. ”
2.12 In Re: P.C. Sen, Chief Minister Of ... vs Unknown, 1966 CriLJ 883, the Advocate General was first asked and only after no response from him the private Counsel was appointed as an Amicus Curiae.
2.13 In Suo Motu Vs S.B. Vakil, Advocate, High Court Of Gujrat LAWS (GJH) 2006 7-5, it is ruled that the court should not act suo moto except in extreme urgency and should leave it to the Attorney General to make a motion in accordance with the rules .
2.14 In The CIT Bombay City Vs. R.H.Pandi (1974) 2 SCC 627 it is ruled as under;
“ 6………. Cursus curiae est lex curiae . The Practice of the Court is the law of the Court. …. ”
2.15 The Supreme Court in many judgments and more particularly in the case of R.S. Sujhata (2011) 5 SCC 689, had ruled that, any deviation from rules framed by the Court in contempt proceeding is fatal to the case and vitiates the Contempt Proceedings. Thus, the trial itself suffered from material procedural defect and stood vitiated. The impugned judgment and order, so far as the conviction of the appellants in contempt proceedings are concerned, is liable to be set aside.”
2.16 In Suo Motu Vs. Nandlal Thakkar, Advocate 2013 Cri. L.J. 3391 (D.B) it is ruled as under;
‘‘ ….. Since we have relied upon the decision in J.R. Parashar's case (supra) we also looked into the Supreme Court Rules regulating proceedings for contempt of the Supreme Court, 1975.
11. In a very recent pronouncement of the Supreme Court in the case of Anup Bhushan Vohra (supra), which has been referred to earlier, the Supreme Court has quoted with approval the view in Muthu Karuppan's case (supra) and has once again reiterated that any deviation from the prescribed Rules should not be accepted or condoned lightly and must be deemed to be fatal to the proceedings taken to initiate action for contempt.
2.17 The main reason for acting against the Rules of Supreme Court by appointing an ineligible Private Counsel instead of an Attorney General of India is very clear. If the Attorney General of India had appeared, he would not have worked under the influence of the interested parties including Justice Nariman who were likely to be affected if trial was conducted as per law. The fear was that the Attorney General might have asked for the prosecution of Justice Rohinton Nariman for forgery of Supreme Court Records and misuse of power for passing order in his own case and also in the case related to his father Adv. Fali Nariman. Also the offences by Adv. Milind Sathe and Mr. Kaiwan Kalyaniwalla by giving letter privately to Justice Rohinton Nariman with false allegations etc. would have been exposed and would have possibly investigated been by the C.B.I.
2.18 Therefore, Justice Deepak Gupta and others had hatched this conspiracy and such illegal appointment was done and an incompetent Adv. Siddharth Luthra who joined the conspiracy, tried his level best to save Justice Rohinton Nariman, Adv. Milind Sathe and Mr. Kaiwan Kalyaniwalla from serious offences against administration of justice. Mr. Luthra overtly helped the Bench of Justice Deepak Gupta to convert the prosecution into persecution by relying on the overruled and per incuriam judgments, destroying the documents from Court records and causing disappearance of evidences etc.
Therefore, it is also an offence under Sec. 218, 211,219, 220 r/w 120(B), 34 etc. of I.P.C.
3. The trial conducted by a Private Counsel instead of Govt. Law Officer, is vitiated as it causes serious prejudice to the fundamental rights of the accused:-
3.1 That, the trial conducted by a private counsel instead of Govt. Law Officer is declared as vitiated causing serious prejudice to the fundamental rights of the accused. In such cases retrial is ordered. Which cause a great loss of public money. In Medichetty Ramakistiah Vs. State AIR 1959 AP 659 it was ruled that;
““Judge committed grave illegality in allowing the prosecution to be conducted by a private counsel and not by the Public Prosecutor. It is in violation of the express and mandatory provisions of the Code - the irregularity in the conduct of the trial has caused prejudice to the accused and has occasioned a failure of justice. The appeal need not be heard on merits because an objection taken by the learned counsel for the appellants as to the manner in which the trial was conducted must prevail and there should be a retrial of the case - The convictions and sentences are set aside- Re- Trial ordered.
4. Duty of the Judge to act as per rules: -
4.1 It is well settled that if manner of a particular act is prescribed under any Statute, the act must be done in that manner or not at all. Therefore, when a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all. ( AIR 1999 SC 1281 (Babu Verghese v. Bar Council of Kerala) “Where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all”.
4.2 That the court at its own cannot bypass the rule and give the status or substitute of Attorney General to a Private Counsel. In Anurag Kumar Singh Vs. State of Uttarakhand and Ors. (2016) 2 SCC (LS) 656 it is ruled as under;
Discretion assumes the freedom to choose among several lawful alternatives. Therefore, discretion does not exist when there is but one lawful option. In this situation, the judge is required to select that option and has no freedom of choice. No discretion is involved in the choice between a lawful act and an unlawful act. The judge must choose the lawful act, and he is precluded from choosing the unlawful act. Discretion, on the other hand, assumes the lack of an obligation to choose one particular possibility among several.[12]
4.3 Supreme Court in Bangalore Medical Trust v. B.S. Muddappa and Ors. and it has been observed:
“ When a statute either provides guidance or rules or regulations are framed for exercise of discretion then the action should be in accordance with it. Even where statutes are silent and only power is conferred to act in one or the other manner, the Authority cannot act whimsically or arbitrarily. It should be guided by reasonableness and fairness. The legislature never intends its authorities to abuse the law or use it unfairly.”
4.4 But Justice Deepak Gupta & Justice Aniruddha Bose have illegally appointed of Adv. Siddharth Luthra as an Amicus Curiae. The order against the Rules without any lawful reason makes both the judges liable for prosecution under Sec. 219, 166, etc. of I.P.C.
In R. R. Parekh’s Case (2016) 14 SCC 1, it was ruled that, such a Judge needs to be removed from the judiciary. It was held that;
“A judge passing an order against provisions of law is said to have been actuated by an oblique motive or corrupt practice - breach of the governing principles of law or procedure by a Judge is indicative of judicial officer has been actuated by an oblique motive or corrupt practice - No direct evidence is necessary - A charge of misconduct against a Judge has to be established on a preponderance of probabilities - The Appellant had absolutely no convincing explanation for this course of conduct - Punishment of compulsory retirement directed.”
5. APPOINTING AN UNDESERVING PERSON AS AMICUS AND MAKING HIM ELGIBLE TO GET FEE FROM SUPREME COURT AS PER CHAPTER XIV RULE 15 (II) OF SUPREME COURT RULES IS AN OFFENCE UNDER SEC. 409, 420, 109 R/W 120(B), 34 OF I.P.C.
5.1 Another serious aspect of the abovesaid illegality is the fee payable/paid to Adv. Siddharth Luthra for his appointment as an Amicus Curiae.
5.2 As per Supreme Court’s ‘Handbook on Practice and Procedure and Office Procedure, 2017’ the Chapter XIV Rule 15 (ii) (a) (b) (c) reads as under;
“15. (ii)
(a) The advocate appointed as Amicus curiae by the Court or from the panel of advocates at the cost of the state shall be entitled to fee at the rate of Rs. 6,000 /- at the admission hearing stage and Rs. 10,000/- at the final disposal stage or at the regular hearing stage, as fixed by the Chief Justice, or as may be ordered by the Court, whereof a certificate in the Form No. 10 shall be issued.
(b) …………
(c) The State concerned shall pay the fee specified in the certificate within three months from the date of presenting the claim before it, supported by the certificate. ”
5.3 That the total appearances of the two advocates (Mr. Luthra and one Junior advocate) and the amount to be paid to them in the case as per rules may run in lakhs of rupees. It is a clear case of misappropriation of public funds and providing benefits to the undeserving person by misuse of the power of a Supreme Court Judge.
5.4 In Rakesh Kumar Chhabra Vs. State of H.P., 2012 CrLJ 354(HP), when an accused had misused his power to extend a favour to an undeserving person out of public funds, then such a person is guilty of misappropriation. When the accused increased the marks of certainr persons for pecuniary benefits during the course of preparation final record for appointment as physical education teacher, it was held that the offence alleged is clearly made out.
5.5 The next most essential ingredient for proof of criminal breach of trust is 'misappropriation with a dishonest intention'. Word 'dishonesty' as defined in Section 24, IPC means doing anything with the intention of causing wrongful gain to one person or wrongful loss to another. So offence is complete when misappropriation or conversion of the property has been made dishonestly. Even temporary misappropriation falls within the ambit of the offence under Section 409.
5.6 In Anup Singh Vs State 2017 SCC On Line Del 8333, in case related with misappropriation of the property of the court, destroying documents from the court record it is ruled that
“ Criminal Breach of trust by the Court officer - Sections 120-B, 109, 201 and 409 of the Indian Penal Code, 1860 : -
Penal Code, 1860 — S. 405 — Criminal breach of trust — Scope of — Held, criminal breach of trust consists of any of the positive acts, namely, misappropriation, conversion, use, or even the disposal of property in violation of the mandate of law prescribing the mode in which the entrustment is to be discharged
Essentials ingredients for bringing home a charge under S. 109 are (a) Abetment of an offence, either by instigation, conspiracy or aiding; (b) The commission of the act abetted, in consequence of abetment; (c) There must not be any express provision, in the Penal Code, 1860 for the punishment of such abetment
5.7 In Superintendent & Rememberancer ... vs S. K. Roy 1974 SCR (3) 348, it is ruled that ;
“ To constitute an offence under section 409 1. P. C. it is not required that misappropriation must necessarily take place after the creation of a legally correct entrustment or dominion over property. The entrustments may arise in "any manner whatsoever". That manner may or may not involve fraudulent conduct of the accused. Section 409 1. P. C. covers dishonest misappropriation in both types of cases, … a public servant who, as a result of it, becomes charged with a duty to act in a particular way, or at least honestly. We convict the respondent under section 409 I.P.C ”
6. On perusal of order dated 27.04.2020, it is obvious that Justice Deepak Gupta, Justice Aniruddha Bose and Sr. Advocate Siddharth Luthra have invented many insane laws. Around 35 offences u. sec 192, 193, 167, 211, 220,201, 218, 219,166, 409, 466, 471, 474, 124-A, 123, 120(B), r/w 34 of IPC , including destroying/theft of Court records, creating false evidences and using these to be genuine ones, refusal to follow Constitution Bench judgment, ignoring evidences to save accused Justice Rohinton Nariman, Adv. Milind Sathe etc are already included in the complaint sent to the appropriate authorities including Chief Justice of India.
Recently, office of Prime Minister of India has directed Delhi Police to investigate the complaint filed against accused Justice Deepak Gupta and others under various charges including charges of sedition. Delhi Police has commenced the investigation in this case.
There are several other appalling illegalities committed by Justice Deepak Gupta and Justice Aniruddha Bose, which I shall cover in my concluding article in this series.
Best Regards
Adv. Vivek Ramteke
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