Mumbai: As per Indian Bar Association press release the guilty persons Vijay Kurle, Rashid Khan Pathan and Nilesh Ojha in contempt matter can challange the order in writ petition. The Supreme Court Bench of Justices Deepak Gupta and Aniruddha Bose has held three lawyers, Vijay Kurle, Rashid Khan Pathan and Nilesh Ojha guilty of contempt for making “scandalous and scurrilous” allegations against judges of the Supreme Court. Soon they may file writ petition in Supreme Court to challenge contempt punishment.
click : DOWNLOAD COPY OF IBA PRESS RELEASE
In Past they have filed recall application but it was rejected by court .
Important points was ...
The Respondents, Adv. Vijay Kurle & Adv. Nilesh Ojha will be filing recall of the order passed by Hon’ble Supreme Court on 04.05.2020, as except the stay on the sentence, the order itself is illegal on following grounds;
1. In the said order, it is wrongly mentioned that the recall application is filed only on the ground that, the judgment dated 26.04.2020 is per-incuriam and that no grievance was raised by the contemnors that they were not given a fair hearing.
The falsity and incorrectness of above finding is ex-facie proved from the record itself.
The prayer of Recall Application filed by Respondent No. 3 itself says that, the recall of order was sought as it was based on the wrong and misleading submission of Ld. Amicus Siddharth Luthra. Prayer clause (b) of recall application reads as under;
‘‘b] Based on the submission in present application the finding of order dated 27.04.2020 be recalled as it is based on incorrect submission by Ld. Amicus Curiae Mr. Luthra and which are ex-facie falsified from the record. Also the observations are against the binding precedents of;
i] Bal Thackeray (2005) 1 SCC 254.
ii] Pallav Seth Vs. Custodian (2001) 7 SCC 549 (FB) [Para 31,32,33]
iii] Campaign For Judicial Accountability And Reforms Vs. Union Of India (5-Judge Bench) (2018) 1 SCC 196.
iv] Divine Retreat Ventre (2008) 3 SCC 542.
v] Amicus Curiae Vs. Adv. Prashant Bhushan (2010) 7 SCC 592.
vi] Maheshwar Peri Vs. High Court of Judicature at Allahabad (2016) 14 SCC 251
vii] Subramanian Swamy Vs. Arun Shourie (2014)12 SCC 344 [5-Judge Bench]
viii] In Re: C.S. Karnan (2017) 7 SCC 1, [7-Judge Bench]
ix] R.K. Anand Vs. Delhi High Court (2009) 8 SCC 106, [3-Judge Bench]
x] J.R. Parashar Vs. Prashant Bhushan (2001)7 SCC 735’’
Similar ground is taken by Respondent No. 1 that, the Bench had made wrong observation about ‘possibility’ of Chief Justice having forwarded the letters to the Bench of Justice Nariman (the ‘letters’ here refer to the two separate letters sent by Adv. Vijay Kurle and Shri. Rashid Khan Pathan in March 2019, which are the point of contention in this Contempt case)
Said findings are against the written communication given by the Assistant Registrar of Supreme Court.
The respondents in their written arguments filed on 16.03.2020, had raised a specific objection of not giving them a fair hearing and discrimination by the Bench and issuance of threats by Justice Deepak Gupta. Said grounds were mentioned in the recall application. But the Bench ignored all these grounds and wrongly rejected the recall application.
Another ground was that, no charges were framed against respondents and that they are ready to produce evidences to prove their allegations of malafides against Justice Nariman, as asked by Justice Gupta. But this ground was not mentioned in the order – for the reasons best known to them.
That, as per Full Bench Judgment in New India Assurance Vs. Krishna MANU/SCOR/53842/ 2019, all the above grounds were sufficient to recall the order but Court erroneously rejected the application stating that, instead of recall, the respondent has to avail the remedy of review.
In National Fertilizer Limited Vs. Tunckey (2013) 9 SCC 600, Supreme Court had recalled its order of conviction of contempt on the ground that, the order is based on the wrong premise.
The further observation of the Court that, a writ is not maintainable, is also incorrect. Though a writ against any other order of Supreme Court may not be maintainable, but against the order in contempt. writ was entertained by Larger Bench in (i) M. S. Ahlawat Vs. State (2000) 1 SCC 27, (ii) Supreme Court Bar Association (1998) 4 SCC 409 . A 7-Judge Bench in A.R. Antuley's case (1998) 2 SCC 602 Hon’ble Court observed that, in writ jurisdiction Court can set aside its earlier order.
In Rupa Ashok Hurra Vs. Ashok Hurra (2001) 4 SCC 388 it is ruled as under;
“47. In M.S.Ahlwat's case (supra), the petitioner, who was found guilty of forging signatures and making false statements at different stages before this Court, was inflicted punishment under Section 193 IPC in Afzal vs. State of Haryana MANU/SC/0590/1996 : 1996CriLJ1679 . He filed an application under Article 32 of the Constitution assailing the validity of that order. Taking note of the complaint of miscarriage of justice by the Supreme Court in ordering his incarceration which ruined his career, acting without jurisdiction or without following the due procedure, it was observed that to perpetuate an error was no virtue but to correct it was a compulsion of judicial conscience. The correctness of the judgment was examined and the error was rectified.
48. In the cases discussed above this Court reconsidered its earlier judgments, inter alia, under Articles 129 and 142 which confer very wide powers on this Court to do complete justice between the parties. We have already indicated above that the scope of the power of this Court under Article 129 as a court of record and also adverted to the extent of power under Article142 of the Constitution.
49. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power.”
Furthermore, a Five-Judge Bench of Privy Council in Ramesh Maharaj (1978) 2 WLR 902 had ruled that, if Court of record punishes a person under contempt without framing charges, then Writ is maintainable and State is bound to pay compensation for the mistake committed by a Judge as Judge is extended arm of the state.
The further illegality committed by the Bench is that, it has shown undue haste to hear on sentence. When the Court itself was of the view that, the remedy of review is available then, it could have deferred the hearing for respondents to avail that remedy. In National Fertilizer Limited Vs. Tinchy (2013) 9 SCC 600, the hearing on recall of contempt order was taken for 3 years.
But the Bench straightaway pronounced the sentence without affording a fair opportunity to Respondents to present their case. It is against the guidelines of Larger Bench of Hon’ble Supreme Court in Santa Singh V. State of Punjab (1976) 4 SCC 190, Court has observed as under
“This new provision in Section 235 (2) is in consonance with the modern trends in penology and sentencing procedures…Moreover, it was realized that sentencing is an important stage in the process of administration of criminal justice – as important as the adjudication of guilt – as it should not be consigned to a subsidiary position as if it were a matter of not much consequence. It should be matter of some anxiety to the Court to impose an appropriate punishment on the criminal and sentencing should, therefore, receive serious attention of the Court.”
The specific grounds (G-11) for ignoring the proofs given for prosecuting Adv. Siddharth Luthra and the Court’s unreasoned order to exonerate him, were not commented upon.
The observations of the Court in I.A. No. 48502 of 2020 i.e. the application for recusal of Justice Deepak Gupta are incorrect. In fact, the application was on the ground that, on 02.03.2020 he had threatened the Counsel for Respondent No. 1 and he had given findings on incorrect and wrong premise. There were total 22 grounds asking his recusal as how a fair hearing is not possible. But in the order, it is wrongly mentioned that, the recusal application was only on one ground that, the Bench is in hurry to decide the matter.
Such orders are treated as Fraud on Power, since these are passed against ignoring the material on record.
[Please see: Vijay Shekhar Vs. Union of India (2004) 4 SCC 666]
Moreover, when request for recusal of a Judge is made, then no other person than the said Judge himself, has to pronounce his decision and the decision cannot be by the Bench.
The Supreme Court Advocates-On-Record Vs. Union Of India (2016) 5 SCC 808, a specific law is laid down in this regard. But here, the order is passed by the Bench and that, too without giving a fair hearing to Respondents.
That, the ground taken by Justice Deepak Gupta that, since he is going to retire within 2 days i.e. on 06.05.2020 cannot be a ground to not to give fair opportunity and subsequently violate the Constitutionally guaranteed rights available to the Respondents.
2. That, the order passed by a Contempt Court is treated as an order passed by a criminal court. As per Supreme Court judgement in Modi Telefibers Vs. Sujit Kumar Chaudhary (2005) 7 SCC 40 ,the order convicting under contempt is an appealable order.
When no appellate bench of Supreme Court is provided then the only remedy is the writ petition.
In Sanyal Committee Report it is observed by relying on Showcross Committee report that, one appellate jurisdiction is must for conviction under contempt.
It is observed as under;
1. The feature of the law of contempt which has given rise to considerable criticism relates to the non-appealability as of right of a sentence passed for criminal contempt. It is urged that much of the criticism against the large powers of the court to punish contemnors will disappear if a right of appeal is provided. In an earlier Chapter, we have pointed out how Judges, like other human beings are not infallible and inasmuch as any sentence of imprisonment for contempt involves a fundamental question of personal liberty, it is only proper that there should be provision for appeal as a matter of course. As the Shawcross Committee observed:
“…….. in every system of law of any civilized State, there is always a right of appeal against any sentence of imprisonment”. There is no justification whatsoever for making any exception to this universally recognised principle in the case of sentences for contempt’’.
3.1. It may be said that the discretionary right of appeal as it exists at present is adequate as in most of the cases the High Court itself may grant the appropriate certificate under article 134 in fit cases and where the High Court refuses, the Supreme Court may intervene by granting special leave under article 136. There is no doubt some force in this argument and it is perhaps for this reason that in one or two of the suggestions received we have been told that it is not necessary to provide for appeals as a matter of right or that the right may be allowed only if the sentence exceeds a certain limit. But considering the uncertain state of the law and the fact that an appeal should be provided as a matter of course in all criminal cases, we are of the opinion that a right of appeal should be available in all cases and we accordingly recommend that against an order of a single Judge, punishing for contempt, the appeal should lie, in the High Court, to a Bench of Judges and against a similar order of a Bench of Judges of a High Court, the appeal should lie as of right to the Supreme Court.
That Full Bench of Supreme Court in Hari Nath Sharma Vs. Jaipal (1999) 4 SCC 251, had ruled that, every person convicted under contempt has right to appeal against conviction and till that, period the Court at its own should stay the sentence.
3. Order dictated in open Court was different from the order uploaded on website of Supreme Court:
That, on 04.05.2020 the Court in its order had specifically mentioned that, the order is being stayed to allow Respondents to avail the remedy of review or any other remedies.
But later on, this part is seen to be omitted in the order uploaded on the website. Reason being provided that the sentence is stayed on the grounds of lockdown due COVID 19 pandemic.
In view of the above points, the order passed on 04.05.2020 is patently illegal and we hope that the order is set aside by the new Bench.
06.05.2020
Mumbai
Adv. Ishwarlal S. Agarwal
Working President
National Co-ordination Committee, IBA
Video Of Contempt Order : Download
Comments
Post a Comment