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IN THE HIGH COURT OF JUDICATURE AT BOMBAY

CRIMINAL APPLICATION NO. ……… OF 2017

IN

CRIMINAL CONTEMPT PETITION NO. 03 OF 2017

Adv. Nilesh Chandrabhushan Ojha

………. Applicant

In the matter between

Bombay Bar Association & Anr. ……..Petitioner

Vs

Shri. Nilesh C. Ojha & Ors.

………Respondents

PRELIMINARY OBJECTION ABOUT MAINTAINABILITY OF THE

PETITION

Respondent No. 1 , Adv. Mr. Nilesh Ojha most respectfully submits as

under:

1. Hon’ble Supreme Court in Ashok Kumar Agarwal Vs. Neeraj

Kumar (2014) 3 SCC 602 has ruled that in proceeding under

Contempt of Courts Act whenever respondents raise various

issues on facts and law then High Court is bound to deal with all

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the issues. The present preliminary objections are based on

various issues which are without prejudice to each other.

2. The preliminary objections included herein are arising from the

Contempt Petition filed by Bombay Bar Association (BBA) and

Advocates’ Association of Western India (AAWI) on 14th Feb

2017, in this Hon’ble Court.

3. It is the contention of the Petitioners that all the 14 respondents

are alleged to have caused contempt of this Hon’ble Court by their

acts of conducting sting operation of court proceedings,

expressing their grievances through interviews on social media

regarding the allegations of corrupt practices of sitting judges of

the Bombay High Court – Justice Shri. S. J. Kathawala in particular

(as in case of Respondent No. 1-10) and facilitating the broadcast

of these interviews on the internet (as in case of Respondent 11-

14).

4. The immediate cause which triggered the alleged contemptuous

act was an order passed by Justice S. J Kathawala in Notice of

Motion No. 2448 of 2016 in Suit No. 471 of 2016 on 8th Feb 2017.

5. The aforementioned order is defective and illegal since Justice S. J.

Kathawala has blatantly and willfully refused to record the

deposition of Public Servant - Talathi , who was hub of the issue

of deciding the issue of authenticity of one of the two different

Mutation Entries of same number produced by two parties to the

suit and whose deposition, if recorded, would have compelled

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Justice S. J Kathawala to pass an order contrary to what he

actually passed.

6. That the Respondent No. 10 (Mr. Ashiq Merchant) has lodged a

formal complaint to the Hon’ble Chief Justice of Bombay High

Court on 9th Feb 2017, regarding this impugned order and has

also filed an appeal against the impugned order.

7. The over activism displayed by BBA and AAWI is indeed

exemplary in rising promptly to the rescue of those members of

the Bar against whom the contemptuous statements have been

made. These two associations seem to have burnt the midnight oil

in compiling all the documents, orders, undertakings etc., not to

mention that they have strived to retrieve the records from 2014

onwards, to fortify their case against Respondent No. 1. But

Respondent No. 1 cannot help but wonder as to why this activism

was dormant during the time when the Hon’ble Supreme Court

declared former Chief Justice of Bombay High Court Mr. Mohit

Shah as harmful, counter productive and non-conducive to the

administration of Justice.

These two associations had exhibited servility and subservience

of the highest order by shamelessly making a representation to

elevate said Mr. Mohit Shah to the post of Judge of Supreme Court,

even in the wake of the aforesaid declaration of Hon’ble Supreme

Court regarding the latter’s incompetency.

8. It is surprising that the Petitioners did not feel it necessary to

touch upon the genesis of the matter in the present case, which

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was as simple as examining the veracity of the alleged

‘contemptuous’ statements, for if they had done so, the truth

would have manifest for every one of us to see. The entire

contempt petition is devoid of any reference to the incident which

lies at the root of the alleged ‘contemptuous acts’.

9. The present Contempt Petition raises serious concerns around:

i. The falling standards of professional ethics of certain

members of the bar

ii. Tendency of influential bar members to exert pressure on

the judiciary to obtain favorable orders

iii. Approach of some members of the Bar in misusing the

jurisdiction of Contempt of Court to threaten the

complainants and their witnesses to not to persue their

legal remedies.

iv. Attempt by some members of the Bar to undermine the

law laid down by Hon’ble Supreme Court and this Hon’ble

High Court.

10. The Respondent No. 1 craves to make following

submissions to record his preliminary objections to the present

Contempt Petition as well as to the orders passed by this Hon’ble

Court on 17th February 2017 and 22n February 2017 in this

regard.

10. "Justice", we do not tire of saying, must not only be done",

but ,'must be seen to be done". And yet at times some Courts

suffer from temporary amnesia and forget these words of

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wisdom. In the result, a Court occasionally adopts a

procedure which does not meet the high standards set for

itself by the judiciary. The present matter falls in that

unfortunate category of cases. (Vide: Nirankar Nath Wahi

V/s Fifth Addl. District Judge, AIR 1984 SC 1268)

These are the observations of Hon’ble Supreme Court while

criticizing the Judge for passing a illegal order to favor a

leading influential member of Bar. It is ruled as under;

Constitution of India , Art.136 , Art.226 -

NATURAL JUSTICE - Landlords' appeal from

proceeding against a leading influential member

of Bar - Refusal of Addl. Dist. Judge to grant short

adjournment to landlord to engage senior

counsel - Landlord's appeal dismissed by

readymade judgment - No reasonable

opportunity of hearing to landlord - Judgment of

Addl. Dist Judge vitiated - We may incidentally

observe that we are also distressed that the High

Court rejected the petition summarily in the face

of these features and obliged the appellant to

approach this Court- the litigant pitted against a

leading member of the Bar may also want to

engage a counsel of his choice and confidence for

it may well appear to him that not every member

of the Bar, might present his case with the

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degree of zeal, enthusiasm, sincerity and

conviction which ordinarily a litigant expects

from his advocate - We are afraid that these vital

aspects were overlooked by the learned Judge

when he granted only three days' time to make

alternative arrangement for engaging a local

senior counsel by reason of the fact that the

Saharanpur Advocate engaged by the appellant

was not in a position to appear on the ground of

illness. This short adjournment for three days

was granted the learned Judge refused to grant

further time to the appellant who had not been

able to make suitable arrangement for engaging

a counsel on that date. We are of the opinion that

the appellant has been denied a reasonable

opportunity of hearing, and that the grievance

made by the appellant, as regards, the procedure

adopted by the learned Judge on this score, is

not unfounded-The judgment rendered by the

Addl. Dist. Judge was thus vitiated by reason of

the failure to grant reasonable opportunity of

hearing to the appellant and by reason of the

procedure adopted in connection with the

preparation and pronouncement of the

judgment.”

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11. Needless to mention here that any Judge and more

particularly the High Court Judge is committed to his office

with the Oath taken as per the third schedule to the

constitution. Oath or affirmation is taken by a Judge that he

will duly and faithfully perform the duties of the office to the

best of his ability, knowledge and judgment without fear or

favour, affection or ill-will and will so upheld the

constitution and the laws. In accordance therewith, Judges

must always remain impartial and should be known by all

people to be impartial.

In Nand Lal Mishra Vs Kanhaiya Lal Mishra [AIR

1960 SC 882], it is ruled that there should not be double

standard by a Judge.

"…. Judge - Double standard and biased

conduct of Judge- The record discloses

that presumably the Magistrate was

oppressed by the high status of the

respondent, and instead of making a

sincere attempt to ascertain the truth

proceeded to adopt a procedure which is

not warranted by the Code of Criminal

Procedure, and to make an

unjudicial approach to the case of the

appellant. In the courts of law, there

cannot be a double-standard - one for the

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highly placed and another for the rest: the

Magistrate has no concern with

personalities who are parties to the case

before him but only with its merits.

Thereafter, the Magistrate considered the

evidence and delivered a judgment

holding that the paternity of the appellant

had not been established. While there was

uncontradicted evidence sufficient for the

Magistrate to give notice to the

respondent, he recorded a finding

against the appellant before the entire

evidence was placed before him. While

accepting the contention of the appellant

that the procedure under Ss. 200 to 203

of the Code did not apply, in fact he

followed that procedure and

converted the preliminary enquiry into a

trial for the determination of the question

raised. Indeed, he took upon himself the

role of a cross-examining counsel engaged

by the respondent.

Though ordinarily, the Supreme Court

would not interfere in such a case under

Art. 136, considering the special

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circumstance of the case, the Supreme

Court interfered and set aside the orders

of Magistrate on ground of illegal

procedure followed by him. "

12. In Zahira Shaikh’s case [2004 SCC (Cri.) 999] Hon’ble

Supreme Court observed that the ‘Judge should be blindfold

only for identity of the parties and not for the Truth and

factual and legal position. It was ruled that:

“….Though justice is depicted to be blind-

folded, as popularly said, it is only a veil

not to see who the party before it is while

pronouncing judgment on the cause

brought before it by enforcing law and

administer justice and not to ignore or

turn the mind/attention of the Court

away from the truth of the cause or lis

before it, in disregard of its duty to

prevent miscarriage of justice. When an

ordinary citizen makes a grievance

against the mighty administration, any

indifference, inaction or lethargy shown

in protecting his right guaranteed in law

will tend to paralyse by such inaction or

lethargic action of Courts and erode in

stages faith inbuilt in judicial system

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ultimately destroying the very justice

delivery system of the country itself.

Doing justice is the paramount

consideration and that duty cannot be

abdicated or diluted and diverted by

manipulative red herrings.

The Courts at the expense of repetition

we may state, exist for doing justice to

the persons who are affected. The

Trial/First Appellate Courts cannot get

swayed by abstract technicalities and

close their eyes to factors which need

to be positively probed and noticed.

The Court is not merely to act as tape

recorder recording evidence,

overlooking the object of trial i.e. to get

at the truth. It cannot be oblivious to the

active role to be played for which there is

not only ample scope, but sufficient

powers conferred under the Code. It has

a greater duty and responsibility i.e. to

render justice, in a case where the role

of the prosecuting agency itself is put

in issue and is said to be hand in glove

with the accused, parading a mock

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fight and making a mockery of the

criminal justice administration itself.

As pithily stated in Jennison v. Backer

(1972 (1) All E.R. 1006), "The law

should not be seen to sit limply, while

those who defy it go free and, those

who seek its protection lose hope".

Courts have to ensure that accused

persons are punished and that the

might or authority of the State are not

used to shield themselves or their

men. It should be ensured that they do

not wield such powers which under

the Constitution has to be held only in

trust for the public and society at large.

If deficiency in investigation or

prosecution is visible or can be

perceived by lifting the veil trying to

hide the realities or covering the

obvious deficiencies, Courts have to

deal with the same with an iron hand

appropriately within the framework of

law. It is as much the duty of the

prosecutor as of the Court to ensure

that full and material facts are brought

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on record so that there might not be

miscarriage of justice”.

13. Respondent No.1 is of the view that a Judge who doesn’t

commit any mistake is yet to be born. But at the same time, it

is necessary to point out the mistakes, if any, committed by

Judge(s), so that “a stitch in time will save nine” and a

situation akin to “Evil tolerated is evil propagated” will be

avoided.

14. Hon’ble Supreme Court in M. S. Ahlawat’s Case [2000 Cr. L. J.

388] - ruled that 'To perpetuate error is no virtue, but to

correct it, is a compulsion of Judicial Conscience’.

15. At the outset, Respondent No. 1 makes it clear that he is of

the opinion that Hon’ble Justice Abhay Oka is that pillar of

Judicial Institution which reinforces the faith reposed by

common man in the Court of law, as Justice A.S. Oka always

tries to perform his duty in the most judicious manner,

uninfluenced by the position of the parties.

16. However, a very unfortunate incident happened on

17th February & 22nd February, 2017 before the Bench of

which Justice Abhay Oak was a part along with Justice Anuja

Prabhudesai. This incident also revealed the sorry state of

affairs of some senior counsels and two unregistered Bar

Associations (BBA and AAWI).

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The Contempt Petition No. 03 of 2017 has brought

to fore the falling standard of professional ethics, the

tendency of influential members of the Bar to exert their

influence to obtain a favorable order from the Hon’ble

Judges and more particularly of the Judges like Justice Abhay

Oka, in violation of the law laid down by Hon’ble Supreme

Court and these are the three broader issues raised in the

present objection.

17. B R I E F F A C T S O F T H E C A S E

17.1 That there was a news on You-tube Channel – Right Mirror

that one Mr. Gopal Shetye has carried out a sting operation

on the corrupt practices of Justice S. J. Kathawala in his Court

during the course of legal proceedings and while

pronouncing the judgments.

The said sting operation video is 38 minute footage of Court

proceeding of 31st August, 2016 of Court room no. 20,

wherein one public servant (Talathi) who deposed in front of

the Justice S. J. Kathawala stating that the document

(Mutation Entry No. 3005) and affidavit given by plaintiff by

name Mr. Maneesh Bawa, is not correct. The Talathi deposed

that there was an objection of Late Shri Maharaj Singh in the

original record.

But shockingly, this deposition of the said Talathi was not

taken on record by Shri. Justice S. J. Kathawala. This fact is

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captured in the video recording which is produced in the

Compact Disk submitted to this Hon’ble Court as an exhibit

to the Complaint forwarded to Hon’ble Chief Justice of

Bombay High Court on 09/02/2017.

Neither did the order passed by Shri. S.J. Justice Kathawala

contain any explanation about this unnatural conduct on his

part of not taking cognizance of deposition of a prime

witness and subsequently excluding any mention of the

same in the final order. On the contrary, Shri. Justice S.J.

Kathawala passed an order against the material on record

and by considering the irrelevant and inadmissible

evidences. Evidence of the witness who was the hub of the

decisions, was wholly disregarded, indictments were framed

on "probable possibility", theories were invented to read

meanings into documents and the manifest, straightforward

explanation was ignored and he himself declaring that he

neither had a shred of evidence which cast a doubt on the

forgery done by the plaintiffs. The conclusions were drawn

by ignoring the deposition - It was further mentioned in one

of the interviews on the you tube channel ‘Right Mirror’ that

- It is the longest possible list of suppresso veri suggesto falsi

on the part of said Judge, Justice S.J. Kathawala.

It is worthwhile to mention here that, the Respondent No. 10

Mr. Ashiq Merchant has mentioned in his interview on the

you tube channel ‘Right Mirror’ about the Complaint lodged

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by him before the Hon’ble President of India, Chief Justice of

India, Chief Justice Bombay High Court and the C.B.I. It is also

evident that the copy of the said Complaint is given to Shri.

Justice S.J. Kathawala. The Complaint was accompanied with

the CD containing the said sting operation. (A copy of the said

Complaint is Annexed herewith as Annexure – ‘AR - 1’)

17.2) The complaint was forwarded by Mr. Ashiq Merchant,

along with the CD on 9th Feb 2017 to the Hon’ble Chief

Justice of Bombay High Court. The Hon’ble Chief Justice did

not find it to be contemptuous since no action has been

initiated on the same till date. Moreover the person Mr.

Gopal Shetye (Respondent No. 4) who recorded this video in

his mobile on 31st August 2017 was caught later by Justice

Kathawala in his own Court on 20th September 2016 for

recording the Court proceedings on that day. However, Ld.

Judge Justice Kathawala did not find this act of recording of

court proceedings in mobile camera as Contempt of the

Court as Justice Shri. Kathawala ordered that only the mobile

be seized and no further action was deemed necessary.

17.3) On 16th February 2017, the present petitioners Bombay Bar

Association (BBA) & Advocates Association of Western India

(AAWI), alleging to be authorized by their members to do so,

approached this Hon’ble Court and filed the present

Contempt Petition No. 03 of 2017.

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17.4) They also served a notice upon Respondent No. 1 stating

that they had mentioned the matter on 16th February 2017

before the Bench of Hon’ble Justice A.S.Oka & Smt. Justice

Anuja Prabhudesai and that the matter was posted on 17th

Feb 2017 for hearing.

17.5) On 17th Feb 2017 Respondent No. 1 (myself) appeared in

person and tried to draw the attention of the Hon’ble Court

towards the falsity and illegality of the said contempt

petition and the subsequent proceedings if conducted. But

this Hon’ble Court was of the view that unless a notice is

issued to me, I will not be heard. And on 17th February 2017,

this Hon’ble Court (Hon’ble Justice A.S.Oka & Smt. Justice

Anuja Prabhudesai) found that the said contempt petition

was incomplete with regards to Respondent No. 1 Adv.

Nilesh C. Ojha and Respondent No. 5, 6, 7, 8, 9 and 10.

Therefore notice was issued only against Resp. No. 3 & 4.

Further, the Counsel for Petitioners craved for leave to allow

them to amend the said Petition which was granted by this

Hon’ble Court and the matter was posted on 22nd February

2017 for next hearing.

17.6) The Petitioners filed the amended Petition on 22nd February

2017 and the Hon’ble Court (Hon’ble Justice A.S.Oka & Smt.

Justice Anuja Prabhudesai) issued notices against the

remaining respondents. The Hon’ble Court further stated

that the present Contempt Petition encompasses bigger

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issue of threat to the independence of the judiciary and

therefore directed the registry to place this matter before

Hon’ble Chief Justice to consider forming a Full Bench of 3 or

more Judges to hear the said petition. Therefore the present

Full Bench is constituted.

17.7) Now after perusing the copy of petition, accompanying

documents, affidavits and the order passed by the Hon’ble

Court on 17th February 2017 and 22nd February 2017, it is

ex-facie clear that the process of law is misused by some of

the members of the Bar and they have managed to obtain the

said orders by practicing fraud upon the Court. The orders

dated 17th February 2017 and 22nd February 2017 are

against the law laid down by Full bench of Hon’ble Supreme

Court and also against the Act and Rules framed by the

legislature and also by the Hon’ble Bombay High Court.

Copies of the orders dated 17th February 2017 and 22nd

February 2017 are attached at Exhibit.

18) PROCEEDINGS ARE ILLEGAL AS AGAINST LAW DECLARED

BY THE SUPREME COURT AND ALSO AGAINST THE ACT

AND RULES;

18.1) That the petitioner made 14 respondents in their Contempt

Petition. They sent a copy of this petition to the Advocate

General of Maharashtra for his consent. The Advocate

General refused to give his consent for Respondent No. 11,

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12, 13 & 14. However, he gave consent for rest of the

respondents vide his letter dated 14th Feb 2017. Under these

circumstances, the said contempt petition is incomplete and

incompetent due to the fact that the petition as presented to

the Advocate General of Maharashtra was not consented by

him in totality and therefore such an incomplete and

incompetent petition cannot be placed before the court

directly but has to be placed first before the Hon’ble Chief

Justice in her Chamber, in view of the law laid down by the

Full Bench of Supreme Court in Bal Thackeray Vs. Harish

AIR 2005 SC 396.

In Bal Thackeray’s case, the Full Bench of Hon’ble Supreme

Court quashed the proceeding under the Contempt of Courts

Act on the ground that the Hon’ble Bombay High Court did

not follow the procedure of placing the matter before Chief

Justice in Chamber first as has been mandated in P.N. Duda’s

case.

Hon’ble Supreme Court also directed all High Courts to

frame necessary rule and/or practice on the line.

It has been ruled in AIR 2005 SC 396 as under;

“…..Contempt of Courts Act (70 of 1971), S.15 -

Cognizance of criminal contempt - Procedure-

Proceedings before High Court were initiated by

respondents by filing contempt petition under S.

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15 - Petitions were vigorously pursued and

strenuously argued as private petitions - Same

were never treated as suo motu petitions - Non-

compliance of mandatory requirement of

obtaining consent of Advocate-General -

Petitions held, would not be maintainable.

20. It is well settled that the requirement of

obtaining consent in writing of the Advocate-

General for making motion by any person is

mandatory. A motion under Section 15 not in

conformity with the requirements of that Section

is not maintainable [State of Kerala v. M.S.

Mani and Others [(2001) 8 SCC 82].

21. A perusal of record including the notices

issued to the appellant shows that the Court

had not taken suo motu action against the

appellant. In contempt petitions, there was no

prayer for taking suo motu action for contempt

against the appellant. The specific objection

taken that though suo motu action could be

taken under Section 15 of the Act on any

information or newspaper but not on the basis

of those contempt petitions which were filed in

regular manner by private parties, was rejected

by the High Court observing that being Court of

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Record it can evolve its own procedure, which

means that the procedure should provide just

and fair opportunity to the contemner to defend

effectively and that the contemner has not

expressed any prejudice or canvassed any

grievance that he could not understand the

charge involved in the proceeding which he had

been called upon to defend. It is, however, not in

dispute that the charge against the appellant was

not framed.

22. In these matters, the question is not about

compliance or non-compliance of the

principles of natural justice by granting

adequate opportunity to the appellant but is

about compliance of the mandatory

requirements of Section 15 of the Act. As

already noticed the procedure of Section 15

is required to be followed even when petition

is filed by a party under Article 215 of the

Constitution, though in these matters

petitions filed were under Section 15 of the

Act. From the material on record, it is not

possible to accept the contention of the

respondents that the Court had taken suo motu

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action. Of course, the Court had the power and

jurisdiction to initiate contempt proceedings suo

motu and for that purpose consent of the

Advocate-General was not necessary. At the

same time, it is also to be borne in mind that the

Courts normally take suo motu action in rare

cases. In the present case, it is evident that

the proceedings before the High Court were

initiated by the respondents by filing

contempt petitions under Section 15. The

petitions were vigorously pursued and

strenuously argued as private petitions. The

same were never treated as suo motu

petitions. In absence of compliance of

mandatory requirement of Section 15, the

petitions were not maintainable.”

25. Before parting, it is necessary to direct

framing of necessary rule or practice direction

by the High Courts in terms of Duda's case.

Accordingly, we direct Registrar-General to send

a copy of this judgment to the Registrar-Generals

of the High Courts so that wherever rule and/or

practice direction on the line suggested in

Duda's case has not been framed, the High

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Courts may now frame the same at their earliest

convenience”.

18.2) Needless to mention here that as per the direction of

Hon’ble Supreme Court the rules for contempt of court

proceedings are amended by Hon’ble Bombay High Court

vide the amendment dated Dt. 24.9.2008. The said

amendment read as under;

“ PART II

5. In case of contempt of Court other than

the Contempt referred to in Rule 4, Court

may take action. —

1. New Chapter XXXIV has been

substituted for the existing Chapter XXXIV

vide Mah. Govt. Gazette dt. 8-8-1996. Part

4-C, pages 364-368.

(a) Suo motu, or (b) on a petition

made by Advocate General. (c) on a

petition made by any person, and in the

case of a criminal contempt with the

consent in writing of the Advocate

General. (d) on a reference made to the

High Court by any Subordinate Court in

respect of Civil Contempt, or (e) on a

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reference under section 15(2) of the said

Act made by a subordinate Court either

suo motu or on an Application received by

it.

(f) If any information is lodged in the

office of this Court in the form of a Petition

or otherwise, inviting this Court to take

action under the Contempt of Courts Act,

1971 or Article 215 of the Constitution of

India, where the informant is not one of

the persons named in Section 15 of the

Contempt of Courts Act, 1971, the

aforesaid Petition or information received

shall be placed before the Chief Justice in

Chambers for appropriate orders.

(g) The office shall place the same

alongwith all other relevant papers before

the Chief Justice in Chambers, within

fifteen days of receipt of the same.

(h) In the event of the Chief Justice

directing cognizance to be taken on the

same, it shall be put up before the

appropriate Division Bench in form of a

Registered Petition, within fifteen days;

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(i) The office shall maintain a separate

register for registering such Petitions.

2. Sub Rule (f) to (i) added vide High

Court Notification No. 3601/2008, Dt.

24.9.2008, published in M.G.G. Pt. IV-C, Dt.

2.10.2008. ”

18.3) Needless to mention here that the contempt petition filed on

16th February 2017 does not even contain a prayer to take

suo-motu action, but during the hearing on 17th February

2017, the counsel for petitioner made an oral request for

taking suo-motu cognizance. It is difficult to believe that the

Counsel for the Petitioner did not possess knowledge of

exclusion of the said prayer in the Petition. However, the

Counsel for Petitioner chose not to bring this legal position

to the notice of this Hon’ble Court (Hon’ble Justice A.S.Oka &

Smt. Justice Anuja Prabhudesai). The same was observed in

the order dated 17th February 2017, Para 12 of the order

reads as under;

“ (12) Now coming to the eleventh to fourteenth

Respondents we find that the learned Advocate

General has not granted consent. The learned Counsel

appearing for the Petitioners prays for invoking suo-

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motu power of this Court of taking action against the

said respondents for commission of Contempt____”

“Before we consider the said prayer, we propose to

issue a show cause notice to the said respondents

calling upon them to show cause as to why suo-motu

action under Contempt Courts Act,1971 for

committing Criminal Contempt could not be initiated

against them. Needless to mention that the order

issuing show cause notice is also an order taking

cognizance of Contempt( Vide:- 2017)”

18.4) In the recent Judgment in the case between Maheshwari

Peri Vs. High Court in Cri. Appeal No. 549 of 2016 it is ruled

by Hon’ble Supreme Court that the application without

consent of Advocate General is no application in the eyes of

law it is ruled as under;

"__________________________________________________________________"

Hon’ble Supreme Court in Bal Thackeray’s (supra) case

while quashing such irregular proceedings clearly ruled that

the question is not about the effect of non-compliance of the

directions issued in Duda’s case by placing the informative

papers before the Chief Justice of the High Court in their

Chamber on administrative side but is about compliance of

the mandatory requirements of Sec.15 of the Act.

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18.5) In State of Kerela…vs...M.S.Mani (2001) 8 SCC 82, it is

ruled that if the petition at the time of its initial present was

incompetent, then subsequent measures could not cure the

defect so as to convert incompetent motion into a

maintainable petition. And on this ground Hon’ble Supreme

Court discharged the Contempt notice and dismissed the

contempt petition. It has been ruled as under;

“ …. It is, however, submitted by the learned

counsel for the petitioner that now Section 15 has

been complied with. We are unable to accede to

this contention. The fact remains that the motion

to take action against the respondents under

Section 15 was not made with the consent of the

learned Attorney General or Solicitor General and

therefore is incompetent. Subsequent obtaining of

the consent, in our view, does not cure the initial

defect so as to convert the incompetent motion

into a maintainable petition.”

The requirement of consent of the Advocate

General/Attorney General/ Solicitor General where

any person other than the said law officers makes

motion in the case of a criminal contempt in a High

Court or Supreme Court, as the case may be, is not a

mere formality, it has a salutary purpose.

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The said law officers being the highest law officers at

the level of the State/Centre as also the officers of the

Courts are vitally interested in the purity of the

administration of justice and in preserving the dignity

of the Courts. They are expected to examine whether

the averments in the proposed motion of a criminal

contempt are made vindicating public interest or

personal vendetta and accord or decline consent

postulated in the said provisions. Further cases found

to be vexatious, malicious or motivated by personal

vendetta and not in public interest will get filtered at

that level. If a motion of criminal contempt in the

High Court/Supreme Court is not accompanied by

the written consent of the aforementioned law

officers, the very purpose of the requirement of

prior consent will be frustrated. For a valid

motion compliance with the requirements

of Section 15 of the Act is mandatory. A motion

under Section 15 not in conformity with the

provisions of Section 15, is not maintainable.

We may also note here that non-compliance of

Section 7 of the English Contempt of Court Act, 1981,

referred to above, was held to be fatal to the action.

[Borrie and Lowe-The Law of Contempt, 3rd Edn., P.

481 (Note 14)}. Here, the Contempt Petition was filed

28

on May 17, 1999 and the consent of the learned

Attorney General was obtained on May 11, 2000.

In C. N. Rudramurthy v. K. Barkathulla Khan, (1998) 8 SCC 275; the

Hon'ble Apex Court observed as under :-

"Indeed, it is a matter of judicial discipline that requires

that when this Court states as to what the law on the

matter is, the same shall be binding on all the Courts

within the territory of India. This mandate of Article

141 of the Constitution is not piece of any doctrine of

precedents, but is an imprimatur to all Courts that the

law declared by this Court is binding on them."

In Jawahar Lai Singh Vs. Naresh Singh and Ors. (1987(2) SCC 222) it

was ruled that;

Judicial discipline to abide by declaration of law by this

Court, cannot be forsaken, under any pretext by any

authority or Court, be it even the highest Court in n

State, oblivious to Article 141 of the Constitution of

India, 1950 (in short the 'Constitution').

18.6) Needless to mention here that the Counsel appearing for

petitioner did not point out this authority/citation, legal and

factual position to the notice of Court and therefore they are

guilty of Gross Professional Misconduct. Had the proper

procedure been followed by placing the matter before the

Hon’ble Chief Justice, then the Hon’ble Chief Justice would

29

not have allowed the petition to go further because the copy

of complaint of Mr. Ashiq Merchant along with the CD of

sting operation was already provided to the Hon’ble Chief

Justice of this High Court. Needless to mention here that the

said copy of the complaint was deliberately suppressed by

the petitioner.

The Petitioners have conveniently refrained from including

any reference to the unnatural conduct of Justice Kathawala

which is the root cause of recording of the interviews on the

you tube channel ‘Right Mirror’ in an attempt to expose the

corrupt practice of Justice Kathawala.

18.7) That on 17th Feb 2017, the petitioner in their petition relied

on the interview of Respondent No. 1 which was regarding

one of his hearings before the Sessions Court against Justice

V.M. Kanade. But Hon’ble Shri. Justice A.S. Oka found that

there is nothing wrong or objectionable in the said

interview. Moreover Respondent No. 1 also raised his

objection regarding the false statement of Petitioner about

their claim that the said You Tube channel ‘Right Mirror’ is

owned by Respondent No. 1 i.e. Mr. Nilesh Ojha as has been

mentioned by petitioner in Para 2.2 & 3. Respondent No.1

also pointed out the legal position to the Counsel for

petitioner that in the contempt proceedings ‘one who asserts

has to prove’ and such proceedings, being quasi-criminal in

nature, the standard of proof required is that of a criminal

30

case and the case could not rest on surmises and conjectures.

(Vide : Sahdev’s case 2010 SCC).

While Hon’ble Justice A.S. Oka expressed his view that

no case could be made out against Respondent no. 1, the

petitioner perceiving the adverse atmosphere, played a dirty

game through their counsel by making a categorically false

statement that there is another interview in the same CD

which is part of their Petition presented to the Advocate

General on 14th February 2017 and that they would file the

transcript of the said interview, for which they sought

permission for amending the petition. Therefore relying on

this false and misleading statement of the Counsel for

Petitioner, the Hon’ble Court permitted the leave to amend

the petition. The Paras 3 and 22 of the order dated 17th

February 2017 are relevant here, which read as under;

3.As far as the first Respondent is concerned, the lear

ned Senior Counsel

appearing for the Petitioners states that the petitioner

s have already relied upon his contemptuous

conduct as seen from

various orders of this Court as as well as utterances in t

he interview in the videos available on 'You Tube'.

He states that Compact Disk containing said

interview is already on record which is marked

31

as Exhibit B-

1. He has produced for perusal of the Court a snapshot

of the

video of the interview of the first Respondent which is a

vailable on 'YouTube' ( the 11th Respondent). He states

that transcript of the interview

will be furnished to the Court.

22.The learned Senior Counsel appearing for the Petitio

ners

prays for leave to amend in terms of the draft tendered

across the bar. The same is taken on record and

marked 'X' for identification.

Inaddition to amendment permitted as aforesaid, we pe

rmit amendmentin terms of draft taken on record and

marked 'X' for identification.

18.8) The malafide intentions of the petitioners and their Counsel

are writ large as can be seen from the very fact that the

draft petition was given to the Advocate General on 14th

February 2017. Furthermore, the CD at Exh. B.1 filed on

14th February 2017 could not have contained the video the

transcript of which is at Exh.2-A because the alleged

Exhibit 2-A annexed in the amended petition is the

transcript of the video uploaded on 15th February 2017.

32

Moreover the Table and the list of the impugned URLs in

Para 3.7 do not contain even a reference of the said

interview which is at ‘Exh.2-A’ in amended petition, as has

been observed in Para 16 of the order dated 22nd Feb 2017.

(A copy of the snapshot showing the date of uploading of

video at Exhibit 2A as 15th February 2017 is annexed

herewith as Exhibit ‘BR - 1’)

The dishonesty of the petitioner can also be seen from the

Para 1 of the order dated 22nd Feb, 2017 where reference is

made to the letter dated 20th Feb 2017 (Exh-8), issued by the

Advocate General granting consent. Para 1 reads as under;

“ (1):- The consent was sought on the basis of the

additional videos uploaded on You-Tube after filing of

the present petition. Two Videos _”

Hence it is clear that the new consent was regarding Exhibit

3A, 4A & 5-A.

But Notice is issued to the Respondent No.1 on the basis of

Exh-2A (Para 16 of the order dated 22nd Feb 2017).

The Exh-2A was neither the part of the initial petition and

the consent given by Advocate General dated 16th Feb 2017

nor was it mentioned in the subsequent consent of the

Advocate General vide letter dated 20th Feb 2017.

33

Needless to mention here that the submission of the Counsel

for Petitioner on 17th Feb 2017 as recorded in (Para 3 & 22)

of the order dated 17th Feb, 2017 was that the said

interview is already in the CD filed along with the petition

and the consent was granted by the Advocate General on the

basis of that CD.

Even otherwise, the order dated 17th February 2017 and

22nd February 2017 is based on the false and misleading

statement and is therefore vitiated as fraud and justice never

dwell together. Even otherwise, the subsequent consent

cannot cure the defect as has been ruled by Hon’ble Supreme

Court in M.S. Mani’s case (Supra).

18.9) Now coming to the observation of order dated 22nd

February 2017 in Para 23 that notwithstanding the consent

granted by the Advocate General, this is a case to initiate a

suo-motu action, this observation is patently perverse to the

rules framed under the Act and if this court is really of the

opinion of taking a suo-motu action, then the Ld. Court has to

mention the same in its order and the case be titled as ‘Court

on its Own Motion…Vs… Respondents’. But the Ld. Justice

A.S. Oka in Para 27 went ahead treating the present case as

instituted on the private petition and directed the

petitioners to serve the copy of the petition and order on the

third Respondent.

34

A reference must be made to the judgment Hon’ble Supreme

Court in Biman Basu…Vs…. Kallol Guha (2010) 8 SCC 673

where it has been ruled as under;

“Sec.15- There is no order reflecting that the

Court having taken note of the information

made before it and initiated suo-motu

proceeding. The Petitioners were continued to

be shown as petitioners and participated

throughout as if they were prosecuting the

appellant- Proceedings are clearly not

maintainable as there was no prayer for taking

suo-motu action._____”

(Para)- The High Court in the present case

rested its conclusion relying on averments

made in the petition stating that “even a suo-

motu contempt proceedings may be initiated”

The record does not bear any such

proceedings of the Court. Had it been so, the

respondents would have been nowhere in

the picture.”

Hence from this legal and factual position it is clear that the

petitioners and their Counsel acted in utter disregard and

defiance of the law laid down by Hon’ble Supreme Court and

35

by practicing fraud upon the court and by taking recourse to

falsehood, the Petitioners have compelled the Ld. Division

Bench to pass such illegal orders and thereby caused the

majesty and dignity of the Supreme Court & High Court into

disrepute and therefore are guilty of Gross Contempt of

Court.

19) Moreover it is seen from the order that the order itself is

contradictory.

With great pain it has to be said that the order is against the

law laid down by Full Bench of Hon’ble Supreme Court.

The other illegalities in the order are capsulized as under;

19.1) That Adv. Nilesh Ojha had raised the preliminary objection

about the maintainability of the petition on the ground that

the petitioner associations are not registered and an

unregistered association has no legal right to file any

petition. The said issue has already been settled by various

authorities as in (2005) 1 GLR 150.

Secondly, the petition should be accompanied by a copy of

resolution by all the members of the Petitioner Associations

authorizing them to file such a petition and if no such

resolution is in place, then the petition should be dismissed.

(i) AIR 2015 SC 1198

36

Criminal - Recall of process - one

employee of Company signed complaint and

Deputy General Manager of Company i.e.

Prosecution Witness gave evidence as if he

knew everything though he did not know

anything - There was nothing on record to

suggest that he was authorized by Managing

Director or any Director - Held, since

complaint was not filed abiding with

provisions of Act, it was not open to

Magistrate to take cognizance - Even order of

issue of process did not mention that Magistrate

had perused any Power of Attorney for issuing

process - Magistrate wrongly took cognizance in

matter and Court below erred in putting onus

on Appellant rather than Complainant -

Impugned order set aside - Proceedings in

question against Appellant were quashed -

Appeal allowed. [paras 16, 17 and 18]

- Therefore, Magistrate rightly acquitted

Appellant - Impugned order set aside - Appeal

allowed. [para 20]

37

(ii) (2011) 11 SC 520

Thirdly, when in the present petition it is mentioned and

also seen from the letter of Advocate General dated 16th Feb

2017 para 3(b) that there are allegations that the

respondents are guilty of making false allegations against

Judges and Counsel, then in the absence of reasons as to why

these persons i.e. Judges and Counsel are unable to approach

the court themselves and have therefore authorized the

petitioners to file such a petition on their behalf, the petition

is not maintainable.

(i) (1997) 4 Bom C.R. 372 (The Judicial officers

Association…Vs….State)

(ii) MANU/JH/1906/2012.

19.2) It is a settled law that whenever any preliminary objection is

raised then it is the bounden duty of the Court to decide it

first as has been done by Hon’ble Supreme Court in Mani’s

case(Supra).

19.3) Hon’ble Supreme Court in AIR 1990 SC 261 ruled that the

issue directly arising before the Court cannot be dealt with

apologetic approaches.

In the case of Sundarjas Kanyalal Bhathija and

others –Vs- The Collector, Thane, Maharashtra AIR 1990

SUPREME COURT 261, it was held that,

38

Constitution of India, Art.141- PRECEDENTS -

Judges are bound by precedents and procedure -

They could use their discretion only when there is

no declared principle to be found, no rule and no

authority - where a single judge or a Division Bench

does not agree with the decision of a Bench of co-

ordinate jurisdiction, the matter shall be referred to a

larger Bench. It is a subversion of judicial process

not to follow this procedure - it is the duty of judges

of superior courts and tribunals to make the law more

predictable. The question of law directly arising in

the case should not be dealt with apologetic

approaches. The law must be made more effective

as a guide to behaviour. It must be determined

with reasons which carry convictions within the

Courts, profession and public. Otherwise, the

lawyers would be in a predicament and would not

know how to advise their clients. Sub-ordinate

courts would find themselves in an embarrassing

position to choose between the conflicting

opinions. The general public would be in dilemma

to obey or not to obey such law and it ultimately

falls into disrepute- One must remember that

pursuit of the law, however glamorous it is, has its

own limitation on the Bench. (Paras 17, 20)

39

Needless to mention here that as per the law laid down by

Hon’ble Supreme Court in the case of Ashok Kumar Agarwal Versus

Neeraj Kumar (2014) 3 SCC 602, the High Court is bound to deal with

each issue raised in the application. But while passing the orders dated

17th February 2017 and 22nd February 2017, the objections raised by

Respondent No. 1 were not decided. It is a clear violation of Hon’ble

Supreme Court’s directions in the case of Ram Phal Vs. State 2009 ALL

SCR 2575. It has been laid down by Hon’ble Supreme Court that

“(para7) 7.Having gone through the impugned

order, in our considered view, we cannot sustain the

same for the reasons, that, in the writ petition filed,

the appellant had raised several issues in support

of the relief sought in the writ petition. The High

Court without examining any one of the issues

raised and canvassed, by cryptic and non-

reasoned order, has dismissed the writ petition.

In our view, this is not the way a petition filed

underArticle 226 or 227 of the Constitution of

India is to be disposed of. The duty to

give reasons for coming to a decision is of decisive

importance which cannot be lawfully disregarded.

The giving of the satisfactory reasons is required

by the ordinary man's sense of justice and also a

healthy discipline for all those who exercise

power over others. This Court in the case of Raj

40

Kishore Jha Vs. State of Bihar and Or s., (2003)11 SCC

519 : [2003 ALL MR (Cri) 2339 (S.C.)J has stated:

"Reason is the heartbeat of every conclusion.

Without the same, it becomes lifeless ".

In another judgment Hon’ble Supreme Court in the case of Suga

Ram -Vs- State 2007 ALL MR (Cri) 546 (SC) held that,

“[para 7] Leave much to be desired Reasons

introduce clarity in an order. On plainest

consideration of justice, the High Court ought to

have set forth its reasons, howsoever brief, in its

order indicative of an application of its mind, all

the more when its order is amenable to further

avenue of challenge. The absence of reasons has

rendered the High Court order not sustainable.

Similar view was expressed in State of U.P. Vs.

Battan and Ors. (2001(10) SCC 607).About two

decades back in State of Maharashtra Vs.

VithalRaoPritiraoChawan (AIR 1982 SC1215) the

desirability of a speaking order while dealing with

anapplication for grant of leave was highlighted.

The requirement of indicating reasons in such

cases has been judicially recognized as

imperative.

41

The view was reiterated in Jawahar Lai Singh Vs.

Naresh Singh and Ors. (1987(2) SCC 222);

Judicial discipline to abide by declaration of

law by this Court, cannot be forsaken, under

any pretext by any authority or Court, be it

even the highest Court in n State, oblivious

to Article 141 of the Constitution of India,

1950 (in short the 'Constitution').

7. Even in respect of administrative orders Lord

Denning M. R. in Breen Vs. Amalgamated

Engineering Union (1971(1) A11E.R. 1148)

observed "The giving of reasons is one of the

fundamentals of good administration". In Alexander

Machinery (Dudley) Ltd. Vs. Crabtree (1974

LCR120) it was observed: "Failure to give reasons

amounts to denial of justice". Reasons are live

links between the mind of the decision taker to

the controversy in question and the decision or

conclusion arrived at". Reasons substitute

subjectivity by objectivity. The emphasis on

recording reasons is that if the decision reveals

the "inscrutable face of the sphinx", it can, by its

silence, render it virtually impossible for the

Courts to perform their appellate function or

42

exercise the power of judicial review in adjudging

the validity of the decision. Right to reason is an

indispensable part of a sound judicial system,

reasons at least sufficient to indicate an

application of mind to the matter before Court.

Another rationale is that the affected party can

know why the decision has gone against him. One

of the salutary requirements of natural justice is

spelling out reasons for the order made, in other

words, a speaking out. The "inscrutable face of a

sphere” is ordinarily incongruous with a judicial

or quasi- judicial performance.

The Judge who exercise discretion are expected to bear in mind

that

1) “Discretion when applied to a court

of justice, means sound discretion guided by

law. It must be governed by rule, not by

humour, it must not be arbitrary, vague and

fanciful, but legal and regular”

[Tingley –Vs- Dalby, 14 NW 146]

2) “An appeal to a Judge]s discretion is an

appeal to his judicial conscience. The discretion

43

must be exercised, not in opposition to, but in

accordance with established principles of law.”

Gudianti Narsimha –Vs- Public

Prosecutor, High Court 1978 Cri. L.J. 502.

But Division Bench (Hon’ble Justice A.S.Oka & Smt. Justice

Anuja Prabhudesai) acted against the legal precedents and

for the reasons best known to them and passed a cryptic in

favor of the petitioner and observed in para 4 as under.

“(4)…… As far as objection to the

locus of the petitioner is concerned,

the role of the Petitioners in a

contempt petition is to point out the

alleged acts of contempt after the

court……”

But contrary to para 4 the Ld. Division Bench in para 27 of

the order had extended the role of the petitioner. The para

27 of the order reads as under;

"27 We permit the Petitioners to serve a copy of

this order as well as the order

passed by us on 17th February 2017 to the

eleventh to fourteenth Respondents by all

possible modes. We also permit

44

the Petitioners to serve a copy of this order to

the thirteenth Respondent at the

address provided by the

fourteenth Respondent."

This is yet another example of apologetic approach of the

Ld. Division Bench regarding the direct issue / objection

raised by the Petitioner. In fact the law is clear that if any

advocate is found to be appearing for themselves or against

the Rules laid down by the Bar Council of India, then the

Court has to ask such an advocate to withdraw his

vakalatnama/appearance from Court or not hear him. [Vide:

AIR 2014 Mad 133]"

Advocates Act - the Advocate cannot

appear or plead before a court of law in

dual capacity, one as party and other as

an Advocate - he , himself is either

espousing his own cause in the

proceedings cannot claim any privileges

available to Advocates appearing for the

litigants before the Court and cannot be

permitted to appear in robes before the

Court -Advocate is the agent of the party,

his acts and statements, made within the

45

limits of authority given to him, are the

acts and statements of the principal, i.e.,

the party who engaged him – Bombay

High Court in the case of High Court on

its own Motion vs.

N.B.Deshmukh reported in 2011 (2)

Mh.L.J., 273, taken the above view.

Needless to mention here that the above observation in para

27 of the order dated 22nd Feb, 2017 are illegal on two

counts.(i) Firstly as observed in para (4), the petitioner

cannot be allowed to point out the legal position because

their own legality is not decided and as per contempt of

courts Act the legal assistance can be provided only by the

Advocate General and at the most amicus- curiae can be

appointed by the court. Hon’ble Supreme Court ruled that

time and now the person assisting the court should be

impartial one and never be the interested partly like

petitioner whose locus itself is in doubt being un-

incorporated and unregistered.

(ii) Secondly without deciding the locus and observing that the

role of the petitioners ends after pointing out the case, the

Court cannot ask the petitioner to serve the notices and

petitions. In the Contempt of Courts Act there is no such

provision. In fact, the notice along with the copy of the

petition has to be issued by Registry and the Act provides no

46

role or interference of a private party. Yet such an order is

passed and therefore the order is vitatied, as the order is

against the law laid down by Hon’ble Supreme Court in the

case of Biman Basu (2010) 8 SCC 673 where it has been

ruled that any person may move the High Court in contempt

but once the fact constituting the commission of criminal

contempt are placed before the Court, it becomes a matter

between court and the contemnor. The person filing an

application or petition does not become a complainant or

petitioner. His duty ends with the facts being placed .

Now coming to the point of discretion of the Court in deciding

whether to allow a party to assist the Court, it would be apt to

mention that he should be a impartial person . In Sandeep

Kumar Bafna's case, 2014 ALL MR (CRI.) 4113 (SC) ,Hon’ble

Supreme Court ruled as under ;

Role of Public Prosecutor and Private Counsel in

Prosecution

Thereafter, in Shiv Kumar vs Hukam Chand (1999) 7

SCC 467, the question that was posed before another

Three Judge Bench was whether an aggrieved has a

right to engage its own counsel to conduct the

prosecution despite the presence of the Public

Prosecutor. This Court duly noted that the role of the

Public Prosecutor was upholding the law and putting

47

together a sound prosecution; and that the presence

of a private lawyer would inexorably undermine

the fairness and impartiality which must be the

hallmark, attribute and distinction of every

proper prosecution. In that case the advocate

appointed by the aggrieved party ventured to conduct

the cross-examination of the witness which was

allowed by the Trial Court but was reversed in

Revision by the High Court, and the High Court

permitted only the submission of Written Argument

after the closure of evidence.

Upholding the view of the High Court, this Court went

on to observe that before the Magistrate any person

(except a police officer below the rank of Inspector)

could conduct the prosecution, but that this laxity is

impermissible in Sessions by virtue of Section 225 of

the CrPC, which pointedly states that the prosecution

shall be conducted by a Public Prosecutor. We,

respectfully, agree with the observations that – “A

Public Prosecutor is not expected to show a thirst to

reach the case in the conviction of the accused

somehow or the other irrespective of the true facts

involved in the case. The expected attitude of the

Public Prosecutor while conducting prosecution must

be couched in fairness not only to the Court and to the

48

investigating agencies but to the accused as well. ……..

A private counsel, if allowed a free hand to conduct

prosecution would focus on bringing the case to

conviction even if it is not a fit case to be so convicted.

That is the reason why Parliament applied a bridle on

him and subjected his role strictly to the instructions

given by the Public Prosecutor.”

Hence the para 27 of the order dated 22nd Feb, 2017 is

unjust exercise of the discretion as the preliminary

objections about locus of the petitioners were not decided.

19.4) The second objection was raised by Respondent No. 1 was

regarding the appearance of Counsel who are members of

the managing Committee of the petitioners and who signed

the resolution authorizing the petitioner.

The law in this regard is very clear as has been ruled by

Hon’ble Supreme Court in the year 2001 and further

followed in various cases and more particularly in 2009(3)

CTC6, where it is ruled that the advocate cannot be allowed

to enter in to the shoes of the petitioner. In other Words the

petitioners cannot act as advocate for themself.

This case law was mentioned in para 3 of the order dated

22nd February 2017, but the said question is not decided and

in para 5 a cryptic note is mentioned that the respondents to

take appropriate proceeding before appropriate forum.

49

The para 5 reads as under;

"5 As far the allegations of

professional misconduct are concerned, it is not for

this Court to go into the said aspect and it is for the

concerned Respondents to take out appropriate

proceedings in accordance with law before the

appropriate forum.

And again in para 27, the petitioners were allowed to

continue.

"27 We permit the Petitioners to serve a copy of

this order as well as the order passed by us on 17th

February 2017 to the eleventh to fourteenth

Respondents by all possible modes. We also permit the

Petitioners to serve a copy of this order to the

thirteenth Respondent at the address provided by the

fourteenth Respondent."

This shows that the proper position in law is avoided only

because the petitioners are influential people. In the noble

interests of upholding the Constitution and more particularly

Art.14 of the Constitution, it is necessary that matter be

heard by a different bench of Bombay High Court - either at

Nagpur or Aurangabad.

19.5) That for the above said illegality, the petitioners are to be

blamed. Hon’ble Supreme Court in R.K. Anand’s case ruled

50

that without honest Bar, we cannot except the smooth

functioning of the Bench. Therefore it is necessary that the

guilty counsel and advocates of the BBA & AAWI should be

severely punished and their status as senior counsel be

withdrawn as had been done in R.K. Anand's Case[2009

AIR SCW 6876, (2013) 1 SCC 218.]

20) ILLEGALITY OF TAKING COGNIZANCE AND ISSUING NOTICE

UNDER THE CONTEMPT OF COURT ACT;

20.1) That, Hon’ble Supreme Court in Muthu Karuppan's case had

ruled that the proceeding under the Contempt of Courts Act

is a quasi criminal in nature and the standard of proof

required is the same as that of criminal case and any

deviation from rule has to go in favour of respondents

In Muthu Karuppan v. Parithi Hamvazhuthi (AIR

2011 SC 1645) (supra), the Supreme Court while considering the

criminal contempt held that the Court should be satisfied that there is a

reasonable foundation for the charge and further held that the

punishment cannot be imposed on mere probabilities and the Court

cannot punish the alleged contemner without any foundation merely on

conjectures and surmises. How the Criminal contempt has to be

proceeded, that has been explained in paragraph 9, which reads as

follows:-

51

9) The contempt proceedings being quasi criminal in

nature, burden and standard of proof is the same as

required in criminal cases. The charges have to be

framed as per the statutory rules framed for the

purpose and proved beyond reasonable doubt

keeping in mind that the alleged contemnor is entitled

to the benefit of doubt. Law does not permit imposing

any punishment in contempt proceedings on mere

probabilities, equally, the court cannot punish the

alleged contemnor without any foundation merely on

conjectures and surmises. As observed above, the

contempt proceeding being quasi criminal in nature

require strict adherence to the procedure prescribed

under the rules applicable in such proceedings."

Moreover it has time and now been ruled by Hon’ble Supreme Court

that summoning a person is a serious issue as it affects its life and

liberty. Therefore the order must show that there is application of

judicial mind by the concerned Judge. Moreover, the order should not be

based solely on the basis of evidence given by the Petitioner. In M.N.

Ojha & Ors. v. Alok Kumar Srivastav & Anr. (2009) 9 SCC 682, held

that

Summoning of an accused in a criminal case is a

serious matter. Criminal law cannot be set into

motion as a matter of course. The order of the

52

Magistrate summoning the accused must reflect that

he has applied his mind to the facts of the case and the

law applicable thereto. He has to examine the

nature of allegations made in the complaint and

the evidence both oral and documentary in

support thereof and would that be sufficient for

the complainant to succeed in bringing charge

home to the accused. The Magistrate has to carefully

scrutinise the evidence brought on record and may

even himself put questions to the complainant and his

witnesses to elicit answers to find out the truthfulness

of the allegations or otherwise and then examine if

any offence is prima facie committed by all or any of

the accused. The case on hand is a classic illustration

of non-application of mind by the learned Magistrate.

The learned Magistrate did not scrutinize even the

contents of the complaint, leave aside the material

documents available on record. The learned

Magistrate truly was a silent spectator at the time of

recording of preliminary evidence before summoning

the appellants.

The High Court committed a manifest error in

disposing of the petition filed by the appellants for

quashing the said illegal order without even

adverting to the basic facts which were placed before

53

it for its consideration. The High Court cannot refuse

to exercise its jurisdiction if the interest of justice so

required where the allegations made in the FIR or

complaint are so absurd and inherently improbable

on the basis of which no fair-minded and informed

observer can ever reach a just and proper conclusion

as to the existence of sufficient grounds for

proceeding. In such cases refusal to exercise the

jurisdiction may equally result in injustice more

particularly in cases where the Complainant sets the

criminal law in motion with a view to exert pressure

and harass the persons arrayed as accused in the

complaint. It is well settled and needs no restatement

that the saving of inherent power of the High Court in

criminal matters is intended to achieve a salutary

public purpose "which is that a court proceeding

ought not to be permitted to degenerate into a

weapon of harassment or persecution. If such power

is not conceded, it may even lead to injustice". [See:

State of Karnataka Vs. L. Muniswamy (1977) 2 SCC

699). We are conscious that inherent powers do not

confer an arbitrary jurisdiction on the High Court to

"act according to whim or caprice. That statutory

power has to be exercised sparingly, with

circumspection and in the rarest of rare cases". [See:

54

Kurukshetra University Vs. State of Haryana (1977) 4

SCC 451].

Oswald on Contempt of Court, 3rd Edition at page 54 remarked "an over

subservient bar would have been one of the greatest misfortune that

could happen to the administration of Justice."

20.2) Secondly when the allegations were regarding and related

with the illegality and favor and disfavor done by Shri.

Justice S.J. Kathawala by not recording the deposition of the

witness during the proceedings and there is reference about

the complaint lodged by Respondent No. 10 Mr. Ashiq

Merchant to the Hon’ble President of India & Hon’ble Chief

Justice, then the truth could be easily found out by examining

the complaint. But the petitioners and their Counsel the

deliberately suppressed the copy of the complaint from the

Court because the same would go against them, if produced.

Therefore the Counsel for the petitioner are guilty of gross

professional misconduct in view of the law laid down in E.S.

Reddy’s case (1987) 3 SCC 258 where it has been ruled as

under;

A) Duty of Advocates

towards Court – Held, he has to act fairly and place all the

truth even if it is against his client – he should not withhold

55

the authority or documents which tells against his client – It

is a mistake to suppose that he is a mouthpiece of his client

to say whatever he wants – He must disregard with

instruction of his client which conflicts with their duty to

the Court. (Para 11 & 12 )

B) Duty and responsibility of senior counsel - By virtue of

the pre-eminence which senior counsel enjoy in the

profession, they not only carry greater responsibilities but

they also act as a model to the junior members of the

profession. A senior counsel more or less occupies a

position akin to a Queen's counsel in England next after the

Attorney General and the Solicitor General. It is an honor

and privilege conferred on advocates of standing and

experience by the chief justice and the Judges of this court.

They thus become leading counsel and take precedence on

all counsel not having that rank- A senior counsel though he

cannot draw up pleadings of the party, can nevertheless be

engaged "to settle" i.e. to put the pleadings into "proper and

satisfactory form" and hence a senior counsel settling

pleadings has a more onerous responsibility as otherwise

the blame for improper pleadings will be laid at his doors.

(Para 10)

“( 11 ) Lord Reid in Rondel v. Worsley has succinctly

set out the conflicting nature of the duties a counsel

56

has to perform in his own inimitable manner as

follows :

Every counsel has a duty to his client fearlessly to

raise every issue, advance every argument, and ask

every question, however distasteful, , which he thinks

will help his client's case. As an officer of the court

concerned in the administration of justice, he has an

overriding duty to the court, to the standards of his

profession, and to the public, which may and often

does lead to a conflict with his client's wishes or with

what the client thinks are his personal interests.

Counsel must not mislead the court, he must not lend

himself to casting aspersions on the other party or

witnesses for which there is no sufficient basis in the

information in his possession, he must not withhold

authorities or documents which may tell against his

clients but which the law or the standards of his

profession require him to produce. By so acting he

may well incur the displeasure or worse of his client

so that if the case is lost, his client would or might

seek legal redress if that were open to him.

( 12 ) Again as Lord Denning, M. R. in Rondel v. W

would say :

57

He (the counsel) has time and again to choose

between his 265 duty to his client and his duty to the

court. This is a conflict often difficult to resolve; and

he should not be under pressure to decide it wrongly.

. . . When a barrister (or an advocate) puts his first

duty to the court, he has nothing to fear. (words in

brackets added).

In the words of Lord Dinning:

“It is a mistake to suppose that he is the mouthpiece

of his client to say what he wants :. . . . He must

disregard the most specific instructions of his client, if

they conflict with his duty to the court. The code

which requires a barrister to do all this is not a code

of law. It is a code of honor. If he breaks it, he is

offending against the rules of the profession and is

subject to its discipline. “

20.3) That it was expected from Ld. Division Bench that they

should have verified the entire set of facts before coming to

any conclusion.

That, the law of Contempt of Courts is clear.

COURT HAS TO SEE THE ENTIRE SPEECH BEFORE

COMING TO ANY CONCLUSION.

58

In a case of similar nature in the case between

Subramanyam Swamy Vs. Arun Shourie AIR 2014 SC

3020 (Constitution Bench) ruled as under;

CASE NOTE : Contempt of court - Articles

129 and 215 of the Constitution - Scandalous

statement published in Newspaper against

Justice Kuldip Singh, the then sitting Judge of

the Supreme Court for his conclusion against

the direct evidence - reasoned or legitimate

criticism of judges or courts is not contempt of

court

– The conduct of the Justice Kuldip Singh , was

commented as evidence of the one witness who

was the hub of the decisions wholly

disregarded; indictments framed on "probable

possibility", theories invented to read meanings

into documents and the manifest,

straightforward explanation ignored; he himself

declaring one day that neither had a shred of

evidence which cast a doubt on Hegde and the

very next day declaring a conclusion; refusing

to common witnesses for cross-examination - It

was further mentioned in the news article that -

It is the longest possible list of suppresso veri

59

suggesto falsi on the part of said Judge if there

had been any sense of honour or shame, a Judge

would never have done any of this. If there were

any residual sense of honour or shame, the

Judge having done any of it and having been

found doing it, would have vacated his seat. But

this is India, the Commissioner Kuldip Singh

having perpetrated such perversities will

continue to sit in judgment on the fortunes and

reputations of countless citizens. He will

continue to do so from nothing less than the

Supreme Court of India itself. Such is our

condition. And so helpless are we that there is

nothing we can do about such a "Judge". Save

one thing. The only way to mitigate the injuries

that such persons inflict on citizens is for all of

us to thoroughly examine the indictments or

certificates they hand out. - it is our duty to find

the time to examine such reports, to examine as

well the conduct of the commissioners who

perpetrate them.

In (2013) 1 CAL LT 65 (HC) it is ruled that;

Contempt of Courts Act, 1971 -

Section 15- Criticism of judicial

60

corruption -Suo motu contempt

proceeding - The imputations were

neither moderate nor couched in

temperate language although the

same in the contextual matter

according to us may not constitute

an act of criminal contempt -

Reading the speech as a whole it is

clear that the alleged speech

essentially deals with the impact

of corruption on the role of

various institutions including

judiciary - having read the

transcription of the said speech and

also having viewed the same from

the CD submitted by the various

parties, we find that the speech was a

discussion on the issue of impact of

money power and corruption in the

functioning -It does not appear to be

promoted by the desire to denigrate

the institution in the eye of society-

Notice upon the alleged-Contemner-

Would not be justified-When no

intention ex facie appears from a

61

plain reading of the transcript of the

entire speech made by the alleged

contemnor.

In P.N. Duda vs. P. Shiv Shankar &

Ors. reported in

MANU/SC/0362/1988 : 1988 (3)

SCC 167, the Apex Court declined

to initiate contempt proceedings

against P. Shiv Shankar, the then

Law Minister of the Union of India

inspite of his intemperate

utterances in a speech delivered at

a seminar on "Accountability of the

Legislature, Executive and Judiciary

under the Constitution of India"

holding :

...though there are passages in

the speech which, torn out of

context, may be liable to be

misunderstood, but, reading the

speech as a whole and bearing in

mind the select audience to which

it was addressed it must be held

62

that no contempt has been

committed by respondent No. 1...

In Court on its own Motion Vs. DSP Jayant Kashmiri and Ors.,

MANU/DE/0609/2017, it is ruled as under ,

Contempt Of Courts Act, 1971 - Section Section

2(c), 15 – CASE NOTE : Contempt Of Courts

Act, 1971 - Section Section 2(c), 15 –

imputation of extraneous unjudicial

motives to the Courts if said imputations can

be so substantiated, then such a submission

or pleading would not be amount to

actionable contempt of Court - When the

judicial impartiality and prestige of Courts has

solid foundations in their traditional judicious

objectivity and efficiency, as illustrated by their

day-today functioning in the public gaze, the

mere strong language in criticising their orders,

cannot mar their image. Such Courts should not

be hyper-sensitive in this matter.

- The administration of justice cannot be

impaired by clothing the professional Advocate

with the freedom to fairly and temperately

criticise in good faith the impugned judgments

63

and orders - The reflection on the conduct or

character of a judge in reference to the

discharge of his judicial duties, would not be

contempt if such reflection is made in the

exercise of the right of fair and reasonable

criticism which every citizen possesses in

respect of public acts done in the seat of justice.

It is not by stifling criticism that confidence in

courts can be created. "The path of criticism",

said Lord Atkin [Ambard v. Attorney-General

for Trinidad & Tobago, (1936) AC 322, at p.

335] "is a public way.

The fifth normative guideline for the Judges to

observe in this jurisdiction as laid down in

Mulgaokar case is not to be hypersensitive even

where distortions and criticisms overstep the

limits, but to deflate vulgar denunciation by

dignified bearing, condescending indifference

and repudiation by judicial rectitude.

Judgments are open to criticism. No criticism of

a judgment, however vigorous, can amount to

contempt of court - Fair and reasonable

criticism of a judgment which is a public

document or which is a public act of a judge

64

concerned with administration of justice would

not constitute contempt. Such a criticism may

fairly assert that the judgment is incorrect or an

error has been committed both with regard to

law or established facts.

The power summarily to commit for contempt

is considered necessary for the proper

administration of justice. It is not to be used for

the vindication of a Judge as a person -

summary jurisdiction by way of contempt

proceedings in such cases where the court itself

was attacked, has to be exercised with

scrupulous care and only when the case is clear

and beyond reasonable doubt. - If a Judge is

defamed in such a way as not to affect the

administration of justice, he has the ordinary

remedies for defamation if he should feel

impelled to use them.

"Scandalising the court means any hostile

criticism of the Judge as Judge; any personal

attack upon him, unconnected with the office he

holds, is dealt with under the ordinary rules of

slander and libel"

65

Similarly, Griffith, C.J. has said in the

Australian case of Nicholls [(1911) 12 CLR

280, 285] that:

"In one sense, no doubt, every defamatory

publication concerning a Judge may be said to

bring him into contempt as that term is used in

the law of libel, but it does not follow that

everything said of a Judge calculated to bring

him into contempt in that sense amounts to

contempt of court".

In (1999) 8 SCC 308, Narmada Bachao

Andolan v. Union of India & Ors.,

The observations by S.P. Bharucha, J. while

recording disapproval of the statements

complained of and not initiating action for

contempt because "the Court's shoulders are

broad enough to shrug off their comments", in

fact reflects that hypersensitivity had no basis

in fact or in law.

So if the Ld. Division Bench had taken some efforts to watch

the said video dated 31st August 2016 about the deposition

of Public Officer (Talathi) and examine the order dated 31st

August, 2016 in the light of this video, then it would have

been amply clear that Justice S.J. Kathawala had not recorded

66

the said deposition. Moreover the final order dated 8th

February, 2017 (suppressed by the Petitioners) also proves

that evidence of the witness (Talathi) who was the hub

of the decision was wholly disregarded, and the decision

was based on the probable possibility and by inventing

theories to read meanings in the documents whereas the

straight forward explanation was ignored. Therefore

wrong is done to the Respondent and his allegations are true

and correct and therefore, in view of the law laid down by

Supreme Court in R.R. Parekh’s case AIR 2016 SC 3356 , it

can be said that the Judge adopting such a course as against

the normal procedure, has acted with a corrupt motive.

It is ruled by the Hon’ble Supreme Court as under ;

A judge passing a order against provisions of

law in order to help accused is said to have

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.

67

A wanton 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. In the absence of a

cogent explanation to the contrary, it is for the

disciplinary authority to determine whether a

pattern has emerged on the basis of which an

inference that the judicial officer was actuated

by extraneous considerations can be drawn - It

is not the correctness of the verdict but the

conduct of the officer which is in question- .

There is on the one hand a genuine public

interest in protecting fearless and honest

officers of the district judiciary from motivated

criticism and attack. Equally there is a genuine

public interest in holding a person who is guilty

of wrong doing responsible for his or his

actions. Neither aspect of public interest can be

ignored. Both are vital to the preservation of the

integrity of the administration of justice - A

charge of misconduct against a Judge has to be

established on a preponderance of probabilities

- No reasons appear from the record of the

judgment, for we have duly perused the

judgments rendered by the Appellant and find

68

merit in the finding of the High Court that the

Appellant paid no heed whatsoever to the

provisions of Section 135 under which the

sentence of imprisonment shall not be less than

three years, in the absence of special and

adequate reasons to the contrary to be recorded

in the judgment of the Court. Most significant is

the fact that the Appellant imposed a sentence

in the case of each accused in such a manner

that after the order was passed no accused

would remain in jail any longer. Two of the

accused were handed down sentences of five

months and three months in such a manner that

after taking account of the set-off of the period

during which they had remained as under-trial

prisoners, they would be released from jail. The

Appellant had absolutely no convincing

explanation for this course of conduct.

The above case law is mentioned by Respondent No. 1 in his

interview but this part was ignored by Ld. Division Bench for

the reasons best know to them.

The order taking cognizance does not contains even a stray

reference as to in what context the alleged contemptuous statements

69

were made and this itself is against the law laid down by

Supreme Court in Arun Shourie's case AIR 2014 SC 3020

(Supra).

Relying on it Delhi High Court in DSP Jayant Kashmiri' case supra

held that

Defamation or Contempt – Held, The difference

between what is a libel on the Judge and what

amounts really to contempt of court , Supreme Court

at AIR 1954 SC 10 - The only portion of the

resolution to which prima facie objection can be

taken is that which describes these Judicial

Officers as thoroughly incompetent in law and

whose judicial work does not inspire confidence -

all the surrounding facts and circumstances under

which the statement was made would

undoubtedly be relevant circum stances - It is not

the language of the contents of the publication

alone which would be determinative of the issue

as to whether the same was effected to interfere

with the due administration of justice but

surrounding facts and circumstances under which

the publication or the representation was made

are required to be considered - On the materials

before us, it is difficult to say that the circumstances

70

under which the representation was made by the

appellants was calculated to have such effect. There

might have been some remote possibility but that

cannot be taken note of - The power summarily to

commit for contempt is considered necessary for the

proper administration of justice. It is not to be used

for the vindication of a Judge as a person. He must

resort to action for libel or criminal information -

Publication of scandalous material against a Judge -

The power summarily to commit for contempt is

considered necessary for the proper

administration of justice. It is not to be used for

the vindication of a Judge as a person - summary

jurisdiction by way of contempt proceedings in

such cases where the court itself was attacked, has

to be exercised with scrupulous care and only

when the case is clear and beyond reasonable

doubt - If a Judge is defamed in such a way as not to

affect the administration of justice, he has the

ordinary remedies for defamation if he should feel

impelled to use them.

The reflection on the conduct or character of a judge

in reference to the discharge of his judicial duties,

would not be contempt if such reflection is made in

71

the exercise of the right of fair and reasonable

criticism which every citizen possesses in respect of

public acts done in the seat of justice. It is not by

stifling criticism that confidence in courts can be

created. "The path of criticism", said Lord Atkin

[Ambard v. Attorney-General for Trinidad & Tobago,

(1936) AC 322, at p. 335] " is a public way.

Hence it is clear that the Ld. Division Bench passed the order

against the settled law.

Hon’ble Supreme Court time and now ruled that the

Court/Judges should not act as a post office or mouthpiece of

the complainant. Judges have to apply their judicial mind. It

has been ruled in (2010) 9 SCC 368 as under;

“A senior and experienced court cannot act merely as a Post

Officer or a mouthpiece of the prosecution, but has to

consider the broad probabilities of the case, the total effect

of the evidence and the documents produced before the

Court, any basic infirmities appearing in the case and so on.”

So it is expected from the Court dealing with the

petition under Contempt to scrutinize the evidences and

after following the procedure issue notice to the

respondents.

72

21) THE PRAYER OF THE PETITIONERS ARE ITSELF OFFENSIVE

BUT LD. DIVISION BENCH IGNORED IT;

21.1) It is preposterous on part of the Petitioners, who are

themselves advocates, to include prayer clause (h) & (c) in

their petition, which reads as under;

"(h) That pending the hearing and final disposal of

this Petition, the Respondent No. 1 be restrained from

initiating or taking any action for initiating any civil or

criminal proceedings against the Hon’ble judges of this

Hon’ble Court and other courts in respect of acts done

by them in discharge of their judicial functions."

The above said prayer is unconstitutional and

contemptuous in view of the following legal position;

22.2) Firstly, Section 41 of the Specific Relief Act, 1963, provides

various contingencies in sub section (a) to (j) in which

injunction cannot be granted.

i. To restrain any person from prosecuting a

judicial proceedings unless such a restrain in

necessary to prevent a multiplicity of the

proceedings,

ii. ……

iii. To restrain any person from applying from

instituting or prosecuting any proceedings in

criminal matter,

73

Hon’ble High Court in 1944 SCC online ALL 34 in Para 5

criticized the Judge for granting such Injunction.

5. On the question of injunction we are of

opinion that the approach of the learned civil

Judge was not the proper approach. Injunctions

can be granted in certain suitable cases, but no

permanent injunction can be granted

restraining a party from moving a Court for

the redress of his grievance. This will be an

embargo upon the undoubted right of a

party. The finding of the learned civil Judge

means what the law does not warrant. He

has restrained defendant 3 from

permanently means what the law does not

law. This he could not do.

Also relied on

i. AIR 2015 SC 326

ii. 2016 (2) Mh. L.J. 75

Where it is ruled that the right to judicial remedies for their

redressal is a Constitutional right of Citizen of this Country.

Also in the case against a High Court Judge in the case

between Raman Lal Vs State [2001 Cr.L.J 800] it is ruled

74

that the order which makes the Complainant remedyless

cannot be passed.

Moreover the prayer is also an encroachment over the

‘Rights and Duties’ of an advocate, as per the Bar Council of

India Rules.

Hon’ble Supreme Court in O.P. Sharma’s case (2011) 6 SCC

86 ruled that, as per section-I of Chapter-II, part VI title

“standards of professional conduct and etiquette” of the Bar

Council India rules specifies the duties of an advocate

that ‘he shall not be servile and whenever there is

proper ground for serious complaint against Judicial

officer, it shall be his right and duty to submit his

grievance to proper authorities’.

Also Hon’ble Supreme Court in R.K. Jain's case (2010) SCC

681, clarified that it is obligatory/fundamental duty of

everyone to expose the irregularity and illegality in the

Judicial side of the institution. Needless to mention her that

the observed decision in R.K. Jain's case is approved by

Constitution Bench of Hon’ble Supreme Court in Arun

Shourie's case AIR 2014 SC 3020

But this issue was not considered by Ld. Division Bench.

22.3) The observations in Para 9 of the order dated 22nd February

2017 are not only illegal and per-incuriam but were totally

unwarranted.

75

In para 9 Ld. Division Bench relied on the order dated 11th

November, 2014 in Cri. Writ Petition No. 3611 of 2014.

Though the said order and judgment is otherwise per-

incuriam as passed against the various laws laid down by

Supreme Court.

(i) Hon’ble Supreme Court in AIR 1983 SC 64 ruled that using

defamatory words against an advocate cannot be a part of

official duty of a Judge and no sanction is required to

prosecute such a Judge.

(ii) 1993 Cr. L.J. 499 (DB) where Division Bench of High Court

ruled that;

Criminal P.C. (2 of 1974), S.197 - SANCTION

FOR PROSECUTION - Prosecution of judges

and public servants - Complaint under

Section 504 I.P.C. - Use of words "non-

sense" and 'bloody fool' by Presiding Officer

against complainant - Sanction to prosecute,

not necessary – This is not the part of his

official duty.

(iii) A Presiding Judge is expected to maintain

decorum in the proceedings before him. He

is expected also to act with restraint- One

would expect him to be sober, unruffled and

temperate in language even when faced

with a situation where those appearing

76

before him may tend to lose their

composure. In this scheme of things any

vituperative outburst on the part of the

Presiding Officer, howsoever grave the

provocation to him, cannot be countenanced

as an action sustainable as one performed

by him "while acting or purporting to act in

the discharge of his official duty."

Even otherwise the abovesaid judgment has no bearing on

the issue of deemed Sanction when the Act is amended.

In such cases, the Heydon’s Mischief Rule as explained by

Hon’ble Supreme Court is applicable.

Please see Hon’ble Supreme Court in Sanjay Dalia's case

MANU/SC/0716/2015

22.4) In Para 11 of the order dated 22nd February 2017, Ld.

Division Bench relied on the undertaking given by

Respondent No.1, but the copy of the said undertaking is

neither annexed by the petitioner nor called for by the Ld.

Division Bench.

In fact the said assurance in Suo-Moto Contempt Petition No.

1 of 2014 was regarding the harsh language used. Even

otherwise the said affidavit of respondent No.1 which is

accepted by Division Bench of Hon’ble High Court would

prove that Respondent No.1 was falsely implicated by

77

then Justice Roshan Dalvi and he was right in making his

complaint. Relevant para 7, 8 & 9of the affidavit reads as

under;

“7. I say

that it is further matter of record that

the Ld. Single Judge proceeded to issue

the said show cause notice so far as I

am concerned, on incorrect facts and

the facts which are contrary to the

material on record and on the basis of

assumption and presumption of the Ld.

Single Judge.

8. I say that since, I was detained by

the Ld. Single Judge without there being

any fault on my part and show cause

notice issued by her to me, was based, so

far as I am concerned, on incorrect facts

and contrary to the materials on record, I

felt and genuinely believed that I have

been illegally detained in the matter by

the Ld. Single Judge and I am the victim to

illegal detention at the hands of the Ld.

Single Judge and therefore, I bonafidely

believed that I have legal remedy to make

78

representation with regard to my illegal

detention to various authorities, including

the Hon’ble The Chief Justice of India and

the Hon’ble The Chief Justice of this

Hon’ble High Court.

9. I say that accordingly, I under

bonafide belief, made detailed

representation vide my letter dated

21.05.2014, a reference of which has been

made in para 21 of the present suo moto

show cause notice, to various authorities.

I say that while making aforesaid

representation dated 21.05.2014, I did

not intend even wildest of my dream to

lower down the dignity and authority of

either of the Ld. Single Judge or the

judicial institution as a whole and in fact,

the said representation was made by me

under bonafide belief of legal remedy to

that effect, being made available to me as

I bonafidely and genuinely believed that I

was victim in the facts and circumstances

of the case. With due respect to this

Hon’ble Court, I say that my belief of I

79

being victim of illegal detention at the

hands of the Ld. Single Judge, was

based on cogent material and

sufficient reasons as have been

described hereinabove.

This proves the falsity and dishonesty of the petitioners as

they put the distorted version by suppressing, twisting of the

fact and hence it is necessary that a strict action is required

to be taken against them.

22.5) Even assuming that if any Court/Judge takes undertaking

from any person for not prosecuting any Judges for any

offence committed by the said Judge then whether such

unlawful undertaking is binding on that person? The answer

will be ‘No’ because no one can make any contract restrained

by law. Such undertakings itself are void. And what cannot

be achieved directly under law could not be allowed to be

achieved indirectly.

22.6) Ld. Division Bench in para 12 of the order placed reliance on

the judgment of Hon’ble Supreme Court (Constitutional

Bench of 5 Judges) in (1991) 3 SCC 655, to substantiate

stand that no F.I.R. can be registered against a High Court or

Supreme Court Judge without compliance of the direction.

80

Firstly the above said case law was not provided to

Respondent No.1 to make his submission. Secondly the Ld.

Judge misplaced his reliance on the said case law, because

the question was already dealt by Hon’ble Shri. Justice Dr.

B.S. Chauhan in Raman Lal’s case 2001 Cri. L. J. 800, where

order of registration of F.I.R. against a High Court Judge

without following said direction was upheld by the Hon’ble

High Court and Hon’ble Supreme Court.

In Raman Lal’s case 2001 Cri. L. J. 800 it has been ruled as

under;

A] Cri. P.C. Sec. 197 – Sanction for

prosecution – Accused are Additional High

Court Judge, Suprintendant of Police Sanjeev

Bhatt and others – The accused hatched

conspiracy to falsely implicate a shop owner in

a case under N.D.P.S. Act and when shop owner

submitted to their demands he was discharged

– Complaint u.s. 120-B, 195, 196, 342, 347, 357,

368, 388, 458, 482, I.P.c. and Sec. 17, 58 (1), (2)

of NDPS Act – Held – there is no connection

between official duty and offence – No sanction

is required for prosecution – Registration of

F.I.R. and investigation legal and proper.

81

B] Cri. P.C. Sec. 156 – Investigation against

accused Addl. High Court Judge – Whether prior

consultation with Chief Justice is necessary

prior filling of F.I.R. against a High Court Judge

as has been laid down by Supreme Court in K.

Veerswami’s case (1991) (3) SCC 655) – Held

– In K. Veerswami’s case Supreme Court

observed that the Judges are liable to be dealt

with just the same as any other person in

respect of criminal offence and only in offence

regarding corruption the sanction for criminal

prosecution is required – the directions issued

by Hon’ble Supreme Court are not applicable in

instant case.

C] The applicant – Ram Lal Addl. High Court

Judge hatched criminal conspiracy – The Bar

Association submitted a representation to

Hon’ble Chief Justice of India on 11-09-1997

requesting to not to confirm Raman Lal as Judge

of the High Court – Later on he was transferred

to Principal Judge of city Civil and Sessions

Court at Ahmedabad – S.P. (C.I.D.) Jaipur sent a

questionnaire through the registrar, Gujrat High

Court to accused Addl. High Court Judge – Chief

82

Justice granted permission to I.O. to interrogate

– Later on I.O. sent letter to applicant to remain

present before Chief Judicial Magistrate at the

time of filing the charge-sheet – Applicant filed

petition before High Court challenging it –

Petition of applicant was rejected by High Court

and Supreme Court in limine – No relief is

required to be granted to petitioner in view of

the facts of the case.

D] Conspiracy – I.P.C. Sec. 120 (B) – Apex

court made it clear that an inference of

conspiracy has to be drawn on the basis of

circumstantial evidence only because it

becomes difficult to get direct evidence on such

issue – The offence can only be proved largely

from the inference drawn from acts or illegal

ommission committed by them in furtherance

of a common design – Once such a conspiracy is

proved, act of one conspirator becomes the act

of the others – A Co-conspirator who joins

subsequently and commits overt acts in

furtherance of the conspiracy must also be held

liable – Proceeding against accused cannot be

quashed.

83

E] Jurisdiction – Continuing offence – Held –

Where complainants allegations are of stinking

magnitude and the authority which ought to

have redressed it have closed its eyes and not

even trid to find out the real offender and the

clues for illegal arrest and harassment are not

enquired then he cannot be let at the mercy of

such law enforcing agencies who adopted an

entirely indifferent attitude – Legal maxim

Necessiatas sub lege Non contineture Quia Qua

Quad Alias Non Est Lictum Necessitas facit

Lictum, Means necessity is not restrained by

laws – Since what otherwise is not lawful

necessity makes it lawful – Proceeding proper

cannot be quashed.

Therefore the observation of Ld. Division Bench are per-

incuriam.

Moreover the Ld. Judge failed to consider the observation of

the Hon’ble Supreme Court in K. Veer Swami's case (Supra)

in para 58, where it is ruled that if any Judge who character

is clouded and whose standard of morality and rectitude are

84

in doubt may not command confidence of public and

therefore he must voluntarily resign.

It has been laid down by Hon’ble Supreme Court in K.

Veerswami’s case (Supra) that,

(53) …… The judiciary has no power of the

purse or the sword. It survives only by public

confidence and it is important to the stability of the

society that the confidence of the public is not shaken.

The Judge whose character is clouded and whose

standards of morality and rectitude are in doubt may

not have the judicial independence and may not

command confidence of the public. He must

voluntarily withdraw from the judicial work and

administration.

(54) …….. The emphasis on this point should not

appear superfluous. Prof. Jackson says "Misbehavior

by a Judge, whether it takes place on the bench or off

the bench, undermines public confidence in the

administration of justice, and also damages public

respect for the law of the land; if nothing is seen to be

done about it, the damage goes unrepaired. This a

must be so when the judge commits a serious criminal

offence and remains in office". (Jackson's Machinery

of Justice by J.R. Spencer, 8th Edn. pp. 369-70.

85

(55) The proved "misbehaviour" which is the

basis for removal of a Judge under clause (4) of Article

124 of the Constitution may also in certain cases

involve an offence of criminal misconduct under

Section 5(1) of the Act. But that is no ground for

withholding criminal prosecution till the Judge is

removed by Parliament as suggested by counsel for

the appellant. One is the power of Parliament and the

other is the jurisdiction of a criminal court. Both are

mutually exclusive. Even a government servant who is

answerable for his misconduct which may also

constitute an offence under the Indian Penal Code or

under S. 5 of the Act is liable to be prosecuted in

addition to a departmental enquiry. If prosecuted in a

criminal court he may be punished by way of

imprisonment or fine or with both but in

departmental enquiry, the highest penalty that could

be imposed on him is dismissal. The competent

authority may either allow the prosecution to go on in

a court of law or subject him to a departmental

enquiry or subject him to both concurrently or

consecutively. It is not objectionable to initiate

criminal proceedings against public servant before

exhausting the disciplinary proceedings, and a

fortiori, the prosecution of a Judge for criminal

86

misconduct before his removal bu Parliament for

proved misbehaviour is unobjectionable.

“……….But we know of no law providing

protection for Judges from criminal prosecution.

Article 361(2) confers immunity from criminal

prosecution only to the President and Governors of

States and to no others. Even that immunity has been

limited during their term of office. The Judges are

liable to be dealt with just the same way as any other

person in respect of criminal offence. It is only in

taking of bribes or with regard to the offence of

corruption the sanction for criminal prosecution is

required.

(61) For the reasons which we have endeavored

to outline and subject to the directions issued, we

hold that for the purpose of clause (c) of S. 6(1 of the

Act the President of India is the authority competent

to give previous sanction for the prosecution of a

Judge of the Supreme court and of the High court.

(79) Before parting with the case, we may say a

word more. This case has given us much concern. We

gave our fullest consideration to the questions raised.

We have examined and reexamined the questions

before reaching the conclusion. We consider that the

87

society's demand for honesty in a judge is exacting

and absolute. The standards of judicial behaviour,

both, on and off the bench, are normally extremely

high. For a Judge to deviate from such standards of

honesty and impartiality is to betray the trust reposed

in him. No excuse or no legal relativity can condone

such betrayal. From the standpoint of justice the size

of the bribe or scope of corruption cannot be the scale

for measuring a Judge's dishonour. A single dishonest

Judge not only dishonours himself and disgraces his

office but jeopardizes the integrity of the entire

judicial system.

(80) A judicial scandal has always been

regarded as far more deplorable than a scandal

involving either the executive or a member of the

legislature. The slightest hint of irregularity or

impropriety in the court is a cause for great anxiety

and alarm. "A legislator or an administrator may be

found guilty of corruption without apparently

endangering the foundation of the State. But a Judge

must keep himself absolutely above suspicion" to

preserve the impartiality and independence of the

judiciary and to have the public confidence thereof.

Let us take a case where there is a positive

finding recorded in such a proceeding that the Judge

88

was habitually accepting bribe, and on that ground he

is removed from his office. On the argument of Mr

Sibal, the matter will have to be closed with his

removal and he will escape the criminal liability and

even the ill-gotten money would not be confiscated.

Let us consider another situation where an abettor is

found guilty under S. 165-A of the Indian Penal Code

and is convicted. The main culprit, the Judge, shall

escape on the argument of the appellant. In a civilized

society the law cannot be assumed to be leading to

such disturbing results.

22.7) In view of the above, and in view of the law declared by Hon’ble

Supreme Court in Vineet Narayan’s case and again upheld in the case

between “Shashikant Prasad Vs. The State Thru C.B.I., / A.C.B.,

Lucknow” (2013) 83 ALL 215 where it is ruled as under;

"Section 197 of Cr.P.C. DEEMED SANCTION FOR

PROSECUTION : Whether trial Court is

competent to proceed with the case on the basis

of deemed sanction to prosecute the accused, if

prosecution sanctioned is not accorded by

competent authority/State within the period of

four months in terms of the direction issued by

89

Apex Court in Vineet Narain and another Vs.

U.O.I. and another (1998 SCC(Cri) 307) - It has

been submitted by the learned counsel for the

petitioner that law laid down in Vineet

Narayan's case (supra) has no binding effect in

absence of any legislative amendment made in

P.C. Act. It was further submitted that in Vineet

Narain's case (Supra) certain directions have

been given by the Apex Court to CBI and Central

Vigilance Commission (for short 'CVC').

Direction no. 15 deals with time frame for

according sanction which runs as follows:-

"Time limit of three months for grant of sanction

for prosecution must be strictly adhered to.

However, additional time of one month may be

allowed where consultation is required with the

Attorney General (AG) or any other law officer

in the AG's office."

7. In this regard paragraph 61 of the judgement

of Vineet Narain's Case (Supra) is very

important and so it is reproduced hereinbelow :

"61. In the result, we strike down Directive No.

4.7(3) of the Single Directive quoted above and

issue the above directions, which have to be

construed in the light of the earlier discussion.

90

The Report of the Independent Review

Committee (IRC) and its recommendations

which are similar to this extent can be read, if

necessary, for a proper appreciation of these

directions. To the extent we agree with the

conclusion and recommendations of the IRC,

and that is a large area, we have adopted the

same in the formulation of the above directions.

These directions require the strict

compliance/adherence of the Union of India and

all concerned."

8. In the light of this paragraph no room left to

doubt that the direction given in Vineet Narain's

case (Supra) ought to have been strictly

complied with by all concerned including State

Government. Therefore, directions issued in

Vineet Narain's case (Supra) shall have the

binding effect in the light of Article 141 of

Constitution of India- learned counsel appearing

for CBI drew attention of this court towards the

judgement of Division Bench of this Court

delivered in Writ Petition No. 10503 (M/B) of

2009 (Vishwanath Chaturvedi Vs. Union of

India), wherein the Division of this court

91

keeping in view the direction issued in Vineet

Narain's case (Supra) fixing time limit to accord

sanction has held that in default of taking

decision to accord sanction within the time

fixed, the sanction shall be deemed to have been

granted -Perusal of this paragraph reveals that

unless the amendment is made by the

parliament in the light of Vineet Narain's case

(Supra) the concept of deemed sanction shall be

there. The order dated 3.12.2010 passed by the

Division Bench of this Court in the aforesaid

writ petition was assailed by the State before

Apex Court by filing a Special Leave Petition (c)

No.11563 of 2011. The Apex Court while

entertaining the appeal vide its order dated

18.4.2011 has passed the following interim

order:-

"..... Ad-inteirm stay of the direction No. (iii) in

para 155 and the second part of directions no.

(viii) in para 155 requiring the reports to be

submitted to the High court in read to every

investigation at interval of two months.

In regard to directions no. (iv) in para 155 of the

impugned order, the period three months

92

mentioned therein shall be substituted by the

period 'six months' ....."

12. Perusal of it shows that the Apex court has

not stayed the operation of direction (iv) given

in para 155 but simply extent period from three

months to six months which shows that concept

of deemed sanction has been accepted by the

Apex court . In Dr. Subramanian Swamy's case

(supra). The Apex court again reminded to the

Parliament to do its job. The guide line no. 3 of

para 56 deals with concept of deemed sanction.

13. As such if Investigating Officer asked for

grant of sanction from the government, after

expiry of time limit fixed as above, the

prosecuting agency or complainant may ask the

trial court to proceed in the matter on the basis

of deemed sanction.”

Hence, the concept of deemed sanction is accepted by

Hon’ble Supreme Court.

Even otherwise, we need to apply the Heydon’s Mischief

Rule here. If we consider a situation where the

complainant has given a complaint against a Judge

whose corruption is ex-facie proved and the letter for

93

permission is kept pending in the office of Hon’ble CJI

for an indefinite period then, what are the remedial

measures available to the complainant.

Needless to mention here that the prosecution of the

offender is the obligation of the State.

Therefore the amendment of deemed sanction is squarely

applicable to all the cases including the action against Judges.

Moreover, if there is any doubt, then the said question has to

be decided after hearing both the parties and not by

unilateral pronouncement of judgment which will safeguard

the Judge anticipating an action owing to the sting operation.

In amendment dated u/sec 190 of Cr.P.C., it is amended that if sanction

is not accorded within 30 days then it has to be deemed that the

sanction is accorded . The amendment u/sec 190 of Cr.P.C. reads as

under;

“ In section 190 of the said Code, in sub-section

(1), after clause (c), following provisos shall be added,

namely :—

“ Provided that, no Magistrate shall take cognizance of

any offence alleged to have been committed by any

person who is or was a public servant as defined

under any other law for the time being in force, while

acting or purporting to act in the discharge of his

official duties, except with the previous sanction

94

under section 197 of the Code of Criminal Procedure,

197 or under any law for the time being in force :

Provided further that, the sanctioning authority shall

take a decision within a period of ninety days from

the date of the receipt of the proposal for sanction and

in case the sanctioning authority fails to take the

decision within the said stipulated period of ninety

days, the sanction shall be deemed to have been

accorded by the sanctioning authority.”

But the Ld. Division Bench misinterpreted the provisions of amended

act .

The object of the Parliament behind enacting amendment under section

190 of Cr.P.C has to be taken into consideration while interpreting the

said provisions. The mischief rule of Heydon has been pressed into

service so as to prevent harassment of the victim and abuse of the

said provisions. Court is duty-bound to avoid disproportionate

counter mischief while interpreting a provision. Public policy and

convenience to parties have to be taken into consideration. The

interpretation of provisions must be such so as to avoid hardship

and absurdity.

While interpreting a statute, the problem or mischief that the

statute was designed to remedy should first be identified and then

a construction that suppresses the problem and advances the

remedy should be adopted. The Heydon’s mischief rule has been

95

referred to in Interpretation of Statutes by Justice G.P. Singh, 12th Edn.,

at pp. 124-125 thus : “(b) Rule in Heydon’s case; purposive

construction: mischief rule When the material words are capable of

bearing two or more constructions the most firmly established rule for

construction of such words “of all statutes in general (be they penal or

beneficial, restrictive or enlarging of the common law)” is the rule laid

down in Heydon’s case (76 ER 637) which has “now attained the status

of a classic [Kanailal Sur v. Paramnidhi Sadhukhan AIR 1957 SC

907]. The rule which is also known as ‘purposive construction’ or

‘mischief rule’ [Anderton v. Ryan 1985 2 ALL ER 355], enables

consideration of four matters in construing an Act: (i) What was the law

before the making of the Act, (ii) What was the mischief or defect for

which the law did not provide, (iii) What is the remedy that the Act has

provided, and (iv) What is the reason of the remedy. The rule then

directs that the courts must adopt that construction which “shall

suppress the mischief and advance the remedy”. The rule was explained

in the Bengal Immunity Co. v. State of Bihar [AIR 1955 SC 661] by

S.R. DAS, CJI as follows: “It is a sound rule of construction of a statute

firmly established in England as far back as 1584 when Heydon’s case

(supra) was decided that for the sure and true interpretation of all

Statutes in general (be they penal or beneficial, restrictive or enlarging

of the common law) four things are to be discerned and considered:

1 st - What was the common law before the making of the Act?

2 nd - What was the mischief and defect for which the common law did

not provide?

96

3 rd - What remedy the Parliament hath resolved and appointed to cure

the disease of the commonwealth, and

4 th - The true reason of the remedy;

and then the office of all the judges is always to make such construction

as shall suppress the mischief, and advance the remedy, and to suppress

subtle inventions and evasions for continuance of the mischief, and pro

private commodo, and to add force and life to the cure and remedy,

according to the true intent of the makers of the Act, pro bono publico.

[Bengal Immunity Co. v. State of Bihar].

It was never visualized by the law makers that the Deemed Sanction is

not applicable to the Judges due to Judges Protection Act on the

contrary it is specifically mentioned in the amendment that it is

applicable for sanction under section 197 of the Code of Criminal

Procedure, 197 or under any law for the time being in force.

In Padmasundara Rao (Dead) & Ors.v. State of Tamil Nadu and Ors.

[AIR 2002 SC 1334] , it has been ruled that the intention of the

Legislature must be found in the words used by the Legislature

itself. Reliance has also been placed on Grasim Industries Ltd. v.

Collector of Customs, Bombay [2002 (4) SCC 297] , in which it has

been observed that wherever the language is clear, the intention of the

Legislature is to be gathered from the language used. While doing so,

what has been said as also what has not been said, has to be noted. Here,

the object of the Act and the intention of the Legislature is clear which is

to the otherwise.

97

Bennion on Statutory Interpretation in section 318 in Part XXI has

mentioned that strict construction may be avoided or at least reduced

by limiting the remedy where a counter mischief would arise if the

remedy provided by the Act was eschewed widely. It may appear to the

court that one of the opposing construction of the enactment, if adopted,

would operate a mischief of its own. The prospects of this would

constitute a negative factor in weighing the applicability of the

construction in question. The court also has to consider in mind the

consequences for the public welfare. Often it is reasonable to assume

that the counter-mischief that has arisen was quite unforeseen by

Parliament. Enacted law suffers by comparison with unwritten law in

that it involves Laying down in advance an untried remedy .

As observed, such a counter mischief to the defendant was unforeseen

by Parliament and it is the court’s duty to mitigate the counter mischief.

In Indian Performing Rights Society Ltd. v. Sanjay Dalia, the Hon'ble

Apex Court observed as under :-

29. Bennion has also observed that public policy

must inform the court’s interpretation of the relevant

statutory provision and that public policy ascertained

from the Act of the Parliament. In our opinion, right

to approach the court/pursuing the legal remedy

cannot be made a farce or oppressive as that

would not be conducive for the effective

administration of justice.

98

30. Justice G.P. Singh in ‘Principles of Statutory

Interpretation’, 12th Edition, has observed that

regard be had to the subject and object of the Act. The

court’s effort is to harmonise the words of the statute

with the subject of enactment and the object the

Legislature has in view. When two interpretations

are feasible, the court will prefer the one which

advances the remedy and suppresses the mischief

as envisioned.

……..The object oriented approach, however,

cannot be carried to the extent of doing violence

to the plain language used by rewriting the

section or substituting words in place of the actual

words used by the Legislature. [CIT v. Budhraja

and Company, AIR 1993 SC 2529, p. 2535].

32. The learned author Justice G.P. Singh in

Interpretation of Statutes, 12th Edn. has also

observed that it is the court’s duty to avoid

hardship, inconvenience, injustice, absurdity and

anomaly while selecting out of different

interpretations. The doctrine must be applied with

great care and in case absurd inconvenience is to be

caused that interpretation has to be avoided. Cases of

individual hardship or injustice have no bearing for

enacting the natural construction. The relevant

99

discussion at pages 132-133 and 140-142 is extracted

hereunder :

“(a) Hardship, inconvenience, injustice,

absurdity and anomaly to be avoided In selecting

out of different interpretations "the court will

adopt that which is just, reasonable and sensible

rather than that which is none of those things"

[Holmes v. Bradfield Rural District Council, (1949)

1 All ER 381, p. 384] as it may be presumed "that the

Legislature should have used the word in that

interpretation which least offends our sense of

justice". [Simms v. Registrar of Probates, (1900) AC

323, p. 335 CPC] …………….

“Consideration of hardship, injustice or

absurdity as avoiding a particular construction is a

rule which must be applied with great care. "The

argument ab inconvenienti", said LORD MOULTON, "is

one which requires to be used with great caution".

[Vacher & Sons v. London Society of Compositors,

(1913) AC 107].

…According to BRETT, L.J., the inconvenience

necessitating a departure from the ordinary sense of

the words should not only be great but should also be

what he calls an “absurd inconvenience”. Moreover,

individual cases of hardship or injustice have no

100

bearing for rejecting the natural construction,

[Young & Co. v. Leamington Spa Corporation, (1993) 8

AC 517], and it is only when the natural construction

leads to some general hardship or injustice and some

other construction is reasonably open that the natural

construction may be departed from. It is often found

that laws enacted for the general advantage do result

in individual hardship; for example laws of Limitation,

Registration, Attestation although enacted for the

public benefit, may work injustice in particular cases

but that is hardly any reason to depart from the

normal rule to relieve the supposed hardship or

injustice in such cases. [Lucy v. Henleys Telegraph

Works, (1969) 3 All ER 456]. "It is the duty of all

courts of justice", said LORD CAMPBELL, "to take

care for the general good of the community, that

hard cases do not make bad law". [East India

Company v. Odichurn Paul, 7 Moo PC 85].

'Absurdity' according to WILLES, J., should be

understood "in the same sense as repugnance that is

to say something which would be so absurd with

reference to the other words of the statute as to

amount to a repugnance". [Christopherson v.

Lotinga, (1864) 33 LJ CP 121]. "Absurdity", said

LORD GREENE, M.R., "like public policy, is a very

101

unruly horse". [Grundt v. Great Boulder

Proprietary Gold Mines Ltd., (1948) 1 All ER 21].

He proceeded to add: "There is one rule, I think which

is clear that, although the absurdity or the non-

absurdity of one conclusion as compared with

another may be and very often is, of assistance to the

court in choosing between two possible meanings of

ambiguous words, it is a doctrine which must be

applied with great care, remembering that judges

may be fallible in this question of an absurdity

and in any event it must not be applied so as to

result in twisting language into a meaning which it

cannot bear. It is a doctrine which must not be

used to re-write the language in a way different

from that in which it was originally framed".

[Grundt v. Great Boulder Proprietary Gold Mines

Ltd. (supra)]. The alternative construction contended

for must be such which does not put an undue strain

on the words used; [Kanailal Sur v. Paramnidhi

Sadhukhan, AIR 1957 SC 907] and does not require

recasting of the Act or any part of it. It must be

possible to spell the meaning contended for out of the

words actually used. [Shamrao V. Parulekar v.

District Magistrate, Thana AIR 1952 SC 324]. No

doubt in cases of ambiguity that construction

102

which better serves the ends of fairness and

justice will be accepted, but otherwise it is for the

Legislature in forming its policy to consider these

elements. [IRC v. Mutual Investment Co. (1966) 3 All

ER 265]. If no alternative construction is open, the

court cannot ignore a statutory provision "to relieve

what it considers a distress resulting from its

operation; a statute has to be given effect to whether

the court likes it or not". [Martin Burn Ltd. v. Calcutta

Corporation, AIR 1966 SC 524]. The function of the

court is to find out what is legal and not what is

right. [Chandavarkar Sita Ratna Rao v. Ashalata

S.Guram, (1986) 4 SCC 447]. It is presumed that a

legislative body intends which is the necessary effect

of its enactments; the object, the purpose and the

intention of the enactment is the same; it need not be

expressed in any recital or preamble; and it is not

competent for any court judicially to ascribe any part

of the legal operation of the statute to inadvertence.

[Kariapper v. Wijesinha, (1967) 3 All ER 485]. ”

Reliance has been placed by the applicant on the decision in Union of

India & Anr. v. Deoki Nandan Aggarwal [1992 Supp. (1) SCC 323] so

as to contend that the court cannot usurp the legislative intention

and cannot supply omissions to a statute.

103

In the law laid down by High Court of Bombay in the case of Noor

Mohamed @ Mohd. Shah R. Patel & Ors. Vs. Nadirshah Ismailshah

Patel & Anr., 2004 ALL MR (CRI.) 42 , it was held that;

“ It has to be kept in mind that nothing can be

said to be done in good faith which is not done with

due care and caution. If these ingredients are

indicated by the complaint, the Magistrate is obliged

to take the cognizance of the complaint so presented

before him unless there are the other grounds for

acting otherwise which has to be justified by reasons

recorded in writing. ”

23. NOT FOLLOWING THE LAW DECLARED BY THE SUPREME

COURT;

That Hon’ble Supreme Court time and again made the law

clear that the power to summon for contempt must always

be exercised cautiously, wisely and with circumspection.

Frequent or indiscriminate use of this power in anger or

irritation would not help to sustain the dignity or status of

the Court, but may sometimes affect it adversely. Wise

Judges never forget that the best way to sustain the

dignity and status of their office is to deserve respect

from the public at large by the quality of their approach

104

and by the restraint, dignity and decorum which they

observe their judicial conduct.

(AIR 1965 SC 745)

In a recent judgment in the case of Court on its own Motion

vs DSP Jayant Kashmiri & Ors., (supra )it has been

observed as under;

“(A) Where the question arises as to whether a

defamatory statement directed against a

Judge is calculated to undermine the

confidence of the public in the capacity or

integrity of the Judge or is likely to deflect

the Court itself from a strict and

unhesitant performance of duties, all the

surrounding facts and circumstances

under which the statement was made

would certainly be relevant circumstances.

(Para 35)

(B) Para 44- If imputation judical motives to

the Court/ Judge if substantiated then such

a submission or pleading would not

amount to actionable contempt of Court.”

24. Based on the above said principle and also followed in Arun

Shourie's case (Supra), it is clear that Ld. Division Bench

were duty bound to see the circumstances under which the

105

imputations were made and to see whether the allegations

are matching/ substantiating with the Court records and

orders.

But Ld. Division Bench did not mention in the whole order as

to whether the allegations and sting operation about the

alleged act of Shri. Justice Kathawala, in not recording the

deposition of the Talathi and passing the order against that

deposition are true or not substantiated ?

As ruled in the above decisions the interview based on the

substantiated imputation cannot be termed as contempt. But

then too, the Ld. Division Bench passed an order issuing

notice to the respondents and therefore the notice is liable to

be discharged.

The prejudices against respondents are writ at large as can

be seen from the fact that in para 23 of the judgment, it is

mentioned that the first, sixth, ninth and tenth respondents

are prima-facie guilty of committing criminal contempt .

The above observation are made even at stage of issuing

notice and without the scrutiny of the relevant materials as

has been mandated by Hon’ble S.C. in N.M. Ojha’s case

(supra) , the order suffers from illegality as to observation

made in the order of issuing notice under Sec. 15 of the

Contempt of Courts Act.

106

Needless to mention here that while issuing notice the Court

generally mentions that the respondents are prima-facie

answerable for act committing contempt.

Therefore, the observations in para 23 are itself illegal,

unwarranted and made unlawfully. This also proves that fair

trial is not possible if the present matter is heard in this

Hon’ble Court since the Respondents have filed several cases

against some sitting Judges of this Hon’ble Court which are

in various stages of hearing and allowing this Contempt

Petition in this very Hon’ble Court is a direct threat to the

objectivity with which the judicial matters need to be dealt

with. Therefore ratio laid down by Hon’ble Supreme Court in

Dr. L.P. Mishra’s case (1998) 7 SCC 379, as mentioned in

para 28 of the order dated 22nd Feb 2017 has to be

followed.

25) PROCEEDING AGAINST THE PROCEDURE SET OUT AND

APPROVED BY SUPREME COURT IN THE STING OPERATION

IN R.K. ANAND’S CASE;

In R.K. Anand Vs. Registrar Delhi High Court, 2009 AIR

SCW 6876, Full Bench Hon’ble Supreme Court had ruled as

under;

Contempt of Courts Act

(70 of 1971), S.2- Procedure - Sting operations carried

by T.V. Channel against Special Public Prosecutor and

107

defence lawyer in pending criminal trial - Initiation of

contempt proceedings on that basis - High Court only

asking for copies of original sting recordings and

allowing original microchips and magnetic tapes to be

retained in custody of T.V. Channel - Once copies of

recordings obtained there was no possibility of any

tampering with microchips from that stage -

Moreover, High Court might have felt that

studio/laboratory of T.V. Channel would be better

place for handling and conservation of such electronic

articles than High Court Registry - Thus, there was no

lapse on part of High Court and leaving microchips in

safe custody of T.V. Channel, have no bearing on final

decision of case. (Para 133)

In order to avoid any such controversies in future all

the High Courts that have so far not framed rules

under S. 34 of the Advocates Act are directed to frame

the rules without any further delay. All the High

Courts shall frame the rules within four months from

today. The High Courts may also consider framing

rules for having Advocates on Record on the pattern

of the Supreme Court of India. Suborning a witness in

a criminal trial is an act striking at the root of the

judicial proceeding and it surely deserves the

108

treatment meted out to the appellant. But the

appellants contemnors, advocates were not given any

notice by the High Court that if found guilty they

might be prohibited from appearing in the High Court,

and the courts subordinate to it, for a certain period.

To that extent the direction given by the High Court

was not in conformity with the principles of natural

justice. (Para 147)

25.1) Needless to mention here that even a obiter dicta of the

Supreme Court is binding and expected to be followed [Vide:

AIR 1995 SC 1729, 2009 ALL MR ( Cri.) 89 ]

25.2) When precedent is clear then Court cannot exercise its

discretion. (AIR 1990 SC 291). If any order is passed by

ignoring the law settled by Supreme Court then such is called

as Judicial Adventurism. ( AIR 1997 SC 2477). Such orders

cannot be allowed to stand.

In Dwarikesh sugar industries ….vs.. Prem heavy

engineering works private limited, AIR 1997 SC 2477, it is

ruled that

JUDICIAL ADVENTURISM - When a

position, in law, is well settled as a result

of judicial pronouncement of this Court, it

would amount to judicial impropriety to

109

say the least, for the subordinate Courts

including the High Courts to ignore the

settled decisions and then to pass a

judicial order which is clearly contrary to

the settled legal position - It should not be

permitted to Subordinate courts including

High Courts to not to apply the settled

principles and pass whimsical orders

granting wrongful and unwarranted relief

to one of the parties to act in such a

manner - The judgment and order of the

High Court is set aside - The appellant

would be entitled to costs which are

quantified at Rs. 20,000.00.

It is unfortunate that the High Court did

not consider it necessary to refer to

various judicial pronouncements of this

Court in which the principles which have

to be followed while examining an

application for grant of interim relief have

been clearly laid down. The observation

of the High Court that reference to judicial

decisions will not be of much importance

was clearly a method adopted by it in

110

avoiding to follow and apply the law as

laid down by this Court.

APPLICABILITY OF CASE LAW :- JUDGE bound to explain case law

relied by parties in his order or judgement :-

When there are some extraneous factor affecting the judiciary

either it may be ‘Media’ or anything then even if the accused who is

entitled to get bail, is denied his right by some of the courts even they

did not quote the case Laws given by counsel for the applicants. It is

advisable that the case laws should be filed on record by way of

‘purshish’ or ‘written Notes of Arguments’. This minimizes the practice

of misuse of judicial process and violation of fundamental rights of the

accused.

Criminal Manual Chapter VI (52) Citation of cases reads as under;

All references in the judgments to rulings of Superior Courts cite

both the names of the parties as well as the number of the volume and

the page of the report. e.g. Narayanan v. State (76 Bom. L.R. 690)

Whenever any authority is relied upon by the counsel then it is

bounden duty of the judge to meticulously examine the issues and

rulings in support thereof. Simply listing the rulings in the judgement

without going into the ratio decidendi of the same is illegal [Adarsh

Graming Sahakari Patsanstha –Vs- Dattu R. Paithankar 2010 (1)

Crimes 714 (Bom)]

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Also in the case of the Bank of Rajasthan Ltd. –Vs- Shyam Sunder

Tapariya 2006 ALL MR (Cri) 2269 it has been laid down that the judge

Should recorded short reasons demonstrating how the case law is

applicable to the case. The conduct of judge about passing of cryptic

orders even without mentioning full title of the judgement and citation

thereof is illegal. Courts are expected to exhibit from their conduct and

their orders concern for justice and not casualness.

Hon’ble Bombay High Court in the case of 2008 ALL MR (Cri) 751 ruled

that-

Precedents – How to deal with case law relied

by the party - Sessions Judge merely

reproduced the head notes/placitums - The

Magistrate also did not discuss the case law

with reference to the ratio of the decisions -

Held, many Judicial Officers follow practice of

reproducing the head notes/placitum from the

reported precedents. The Judicial Officers need

to understand that the head notes are drawn by

editors/staff members of the Law Journals. It is

necessary to read the precedent in entirety. The

judicial Officer is required thereafter to cull out

the ratio of the authority. The matching of facts

and circumstances would then enable the Court

to examine whether such ratio is applicable to

the case with which the Court is required to

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deal with- the Judicial Officers shall avoid such

practice. They shall not merely quote the head

notes/placitum appearing from the indexes or

the prelude to the judgments reported in the

law Journal.(Para 6)

The learned sessions Judge quoted a part of the

observations of the Single Bench in support of

his conclusion that filing of the complaint by a

power of attorney is prima facie legal and

proper. However, the quotation as stated in

paragraph 14 of the impugned order is just

reproduction of the head notes/placitums. Not

only that but even in respect of other

quotations, the learned sessions Judge merely

reproduced the head notes/placitums. The

learned Judicial Magistrate also did not discuss

the case law with reference to the ratio of the

decisions.

This Court has noticed, of late, the practice

adopted by many Judicial Officers to simply

refer the decision of this Court or the apex

Court without examining whether the ratio is

really applicable to the given case. So also, many

Judicial Officers follow practice of reproducing

the head notes/placitum from the reported

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precedents. The Judicial Officers need to

understand that the head notes are drawn by

editors/staff members of the Law Journals. It is

necessary to read the precedent in entirety. The

judicial Officer is required thereafter to cull out

the ratio of the authority. The matching of facts

and circumstances would then enable the Court

to examine whether such ratio is applicable to

the case with which the Court is required to

deal with. Unfortunately, both the Courts below

have failed to undertake such exercise before

making references to the authorities cited

before them. How I wish, the Judicial Officers

shall avoid such practice. They shall not merely

quote the head notes/placitum appearing from

the indexes or the prelude to the judgments

reported in the law Journal.

Hon'ble Supreme Court in the case of Sundeep Bafna Vs. state of

Maharashtra 2014 ALL MR (CRI.) 4113 (SC) passed strictures

against the Judge of Bombay High Court and ruled that

" In the present case, in the impugned Order the

learned Single Judge appears to have blindly

followed the incorrect and certainly misleading

editorial note in the Supreme Court Reports

without taking the trouble of conscientiously

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apprising himself of the context in which

Rashmi Rekha appears to hold Niranjan Singh

per incuriam, and equally importantly, to which

previous judgment. An earlier judgment cannot

possibly be seen as per incuriam a later

judgment as the latter if numerically stronger

only then it would overrule the former."

In the case of Dattani & Co.. Versus.. Income Tax Officer TAX

APPEAL NO. 847/2013 ( 21/10/2013) it has been laid that

Whenever any decision has been relied upon and/or cited

by the assessee and/or any party, the authority/tribunal is

bound to consider and/or deal with the same and opine

whether in the facts and circumstances of the particular

case, the same will be applicable or not. In the instant case,

the tribunal has failed to consider and/or deal with the

aforesaid decision cited and relied upon by the assessee-

Under the circumstances, all these appeals are required to

be remanded to the tribunal to consider in accordance with

law and on merits.

15.4) In Rabindra Nath Singh –Vs- Pappu Yadav case

(2010 (3) SCC (Cri) 165 Hon’ble Supreme Court held that

the High Court committed contempt of Court in not following

the guidelines of Supreme Court in the concerned matter.

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25.5) The consistent law regarding exposure of Corruption,

illegality even in judicial proceedings is always welcome by

Hon’ble Supreme Court and termed it as a duty of every

citizen enshrined under Art. 51(A) (h) of the Constitution.

Relied on:

a) (2010) 8 SCC 841 This case is upheld by

Constitution Bench in Arun

Shourie's case AIR 2014 SC 3020

b) 2010 (119) DRJ 102

c) 2009 AIR SCW 6876 R K Anand

d) MANU/ SC/ 0571/ 2011

25.6) In AIR 2008 SC (Supp) 1788 it is ruled that even a

view of other High Court is to be treated as precedent and

the reason for not following the said precedent has to be

mentioned in the order.

Precedent - View taken by other High Court

though not binding have persuasive value -

Another High Court would be within its right to

differ with the view taken by the other High

Courts, but, in all fairness, the High Court

should record its dissent with reasons therefor.

Thus, the judgment of the other High Court,

though not binding, have persuasive value

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which should be taken note of and dissented

from by recording its own reasons. (Para 24)

Hence, Ld. Division Bench expected and bound to follow the

law and procedure adopted by Delhi High Court in 2009

Cri.L.J. 677 (R.K. Anand’s case) which is approved by Full

bench of Hon’ble Supreme Court in 2009 AIR SCW 6876

(R.K. Anand vs Registrar, High Court)

If said procedure is followed then the action should have

been taken against Sr. Counsel Mr. Aspi Chinoy, Adv. Vishal

Kanade, M/s Federal Rashmikant and also appropriate

action against Shri. Justice S.J. Kathawala who were guilty of

not recording the deposition of public servant and passing

an order against the said evidence and thereby causing the

law in to disrepute.

But the petitioners and the Advocates appearing for the

petitioners deliberately withhold the above said legal

position and obtained the order against the whistle blower

and advocates who were discharging their fundamental duty

under Art. 51 (A) (h) as explained by Hon’ble S.C. in R.K.

Jain’s case (supra)

Therefore, the petitioners and the counsels appearing for the

petitioners are guilty of Contempt of Supreme Court and

Bombay High Court for obtaining an order from High Court

against the law laid down by the Supreme Court.

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As the offence against petitioner is ex-facie proved it is

necessary to take action against them forthwith to set an

example that ‘No one is above law’

Hon’ble S.C. ruled in Mulgaonkar’s case AIR 1978 SC 727

that;

“28. The second principle must be to

harmonise the constitutional values of free

criticism, the Fourth Estate included, and the

need for a fearless curial process and its

presiding functionary, the Judge. A happy

balance has to struck, the benefit of the

doubt being given generously against the

Judge, slurring over mariginal deviations

but severely proving the supremacy of the

law over pugnacious, vicious, unrepentant

and malignant contemnors, be they the

powerful press, gang-up of vested interests,

veteran columnists of Olympian

establishmentarians. Not because the Judge,

the human symbol of a high value, is personally

armoured by a regal privilege but because “be

you – the contemnor- ever so high, the law –

the People’s expression of justice- is above

you.”

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Therefore it is necessary to punish the petitioners and their

Counsels to send a message that “ be you feel that you are so

high, the law, the people’s expression of justice is above you.”

26) Needless to mention here that not only the pleadings but the

prayers of the petitioners are also contemptuous as being

unconstitutional and as clearly intending to save the real

culprits and to threaten the witnesses, complainants and

their advocates.

The prayer clause (c) & (h) praying for prohibiting Adv.

Nilesh Ojha from representing or filing cases against any

Judge is unconstitutional and against the right & privilege of

the Advocate.

Vide: 1. 2001 Cr.L.J 800

2. MANU/ SC/ 0571/ 2011

3. AIR 2015 SC 326

4. 2016 (2) Mh.L.J. 75

5. 1944 SCC online ALL 34 :

So the prayer itself is unconstitutional and against the above

law declared by Hon’ble S.C, Hon’ble Bom. H.C. & Other High

Courts of country.

This prima facie shows the conduct and tendency of the

petitioner & their advocates that they are having audacity to

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challenge the supremacy of rule of law by fouling its source

and stream and this is a fit case where Court must and must

exercise its jurisdiction to punish the petitioners and their

counsels.

27) Another funny rather contemptuous prayer of the petitioner

and their counsels is ;

(e) That, pending the hearing and

final disposal of the Contempt petition, this

Hon’ble Court be pleased to issue appropriate

Orders and Directions directing the

Respondents to purge themselves of the

contempt by (i) forthwith removing from the

website www.youtube.com and from the

internet at large the offending videos (at Exhibit

“B-1”/ “B-2” and “B-3” to “B-10”) and the write

up extracted at paragraphs 3.7 and 3.8 hereof;

(ii) that this Hon’ble Court be pleased to order

and direct the Respondents, particularly

Respondents No. 1 to 10 to disclose on oath the

details of any other scandalous and

contumacious videos/clippings/recordings in

respect of court matters and court proceedings

and submit the same to the Court; (iii) by

delivering up all records, originals and copies of

the offending video and write-up for

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destruction under the Orders of this Hon’ble

Court; and …………………"

Needless to mention here that as per the legal position

settled by Hon’ble Supreme Court in Umesh Kumar’s case

(AIR 2014 SC 1106), any evidence/ sting operation even if it

is illegally obtained, it is evidence and it should be relied to

punish the culprit. Full Bench Hon’ble Supreme Court in R.K.

Anand's case (Supra) upheld the conviction of Sr. Counsel

based on Sting Operation. Therefore, the prayer of Bombay

Bar Associations Vice President Nitin Thakkar & Mr. Viresh

Puruwant of AAWI, to destroy the CD is an attempt to

interfere into investigation and an attempt to destroy the

evidence of the complaint given by Mr. Ashiq Merchant to

C.B.I., C.J.I. and Hon’ble President of India and therefore it is

an offence under section 201, 511, 120(B) & 34 of I.P.C and

they are also liable for action under Contempt of Courts Act

for interfering in the investigation.

28) The overall conduct of the petitioners and their counsel is to

create pressure and instill fear in the mind of witnesses so

that they cannot depose. Therefore, it is a gross contempt as

per R.K. Anand’s case and also as per law laid down by

Hon’ble Supreme Court in various other cases.

The petitioners and counsels also suppressed the view of

Hon’ble Supreme Court.

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The Supreme Court on 22nd February 2017 , observed that a

report based on public views regarding corruption in

judiciary may not invite contempt of court action and that

such surveys instead gave opportunity to address the

malady in the system.

“How do you understand society? You raise questions; ask

people in the society; record their views and then compile it

to see how people think…what is their perception of a

particular institution or an issue. Where will research go if

this is contempt?” que

A bench led by Chief Justice of India J S Khehar said that;

“How do you understand society? You raise questions;

ask people in the society; record their views and then

compile it to see how people think…what is their

perception of a particular institution or an issue.

Where will research go if this is contempt?”

questioned the bench also comprising Justices D Y

Chandrachud and Sanjay K Kaul. The court agreed

with senior lawyer Jayant Bhushan, who represented

the organization

It added that collection of data by individuals or

organizations would not invite contempt. “Are you saying

that if there is a malady, whether it is expediting a case or

delaying it, and other such acts, should we close our eyes? If

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somebody collects data, we think, someone should look at it

closely and find ways to remedy the problems,” it added.

The court was responding to a submission by the counsel for

Jammu and Kashmir government who had sought to defend

a show-cause notice issued to Transparency International

(India) and Centre for Media Studies (CMS) for releasing a

damning report on corruption in the state’s subordinate

judiciary.

This report was based on a survey of litigants and more than

90 per cent of respondents complained of corrupt practices,

which included bribes to delay cases or assign them to other

judges, to lose or misplace files, for opposing lawyers to

work against the interest of their client, delay in execution of

court orders, lack of public access to records of court

proceedings and delay in delivery of judgments.

Article 19(1) (a) says that all citizens shall have right to

freedom of speech and expression. Freedom of speech and

expression include freedom of the media — both electronic

and print media. As the Supreme Court held in PUCL case:

“The foundation of healthy democracy is to have well-

informed citizens.” As P Venkatrama Reddy J observed: “We

must take legitimate pride that this cherished freedom has

grown from strength to strength in the post-independence

era. It has been constantly nourished and shaped to new

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dimensions in tune with the contemporary needs by the

constitutional courts.”

The ends of justice are not served by invoking archaic

contempt laws .

Judges are Not Cloistered Virtue

(Few paragraphs taken from The Times of India (Mumbai)

Nov 18 2016: by Ajit Prakash Shah – The writer is former

Chief Justice of Delhi and Madras High Courts, and former

Chairperson of the Law Commission of India)

A few decades ago, Lord Atkin of the House of Lords had

declared: “Justice is not a cloistered virtue: she must be

allowed to suffer the scrutiny and respectful, even though

outspoken, comments of ordinary men.”

In Re S. Mulgaokar, VR Krishna Iyer J observed: “To criticise

the judgment fairly, albeit fiercely, is no crime but a

necessary right, twice blessed in a democracy. For, it

blesseth him that gives and him that takes. Where freedom

of expression, fairly exercised, subserves public interest in

reasonable measure, public justice cannot gag it or manacle

it, constitutionally speaking. A free people are the ultimate

guarantors of fearless justice.”

Sabyasachi Mukerjee J dealing with the speech of P Shiv

Shankar, the then union minister for law and justice,

attributing partiality to the court towards economically

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affluent sections of the people observed: “Administration of

justice and judges are open to public criticism and public

scrutiny. Judges have their accountability to society and their

accountability must be judged by their conscience and oath

of their office, that is, to defend and uphold the Constitution

and the laws without fear and favour.”

Chief Justice Hidayatullah let him off with a caution, saying:

“The court, like any other institution, does not enjoy

immunity from fair criticism. This court does not claim to be

always right although it does not spare any effort to be right

according to the best of the ability, knowledge and judgment

of the judges. They do not think themselves in possession of

all truth or hold that wherever others differ from them, it is

so far error. We are constrained to say also that fair and

temperate criticism of this court or any other court even if

strong, may not be actionable….”

Criticism should be well informed, supported by reason and

not emotion. Well-meaning criticism seldom offends the

author of the judgment. Judges are trained to take legitimate

criticism in their stride. The power of contempt is exercised

sparingly.

The first aspect is more troubling: the relevance of contempt

law in a free society where criticism of the judiciary is

inevitable. Judges have vast powers and people will not

remain silent about the exercise of such powers. Just as

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decisions of other branches of government attract criticism,

judicial decisions would also invite the same.

The Supreme Court has held that for the judiciary to function

effectively , the dignity and authority of the courts must be

respected and protected at all costs. But “ The respect is not

demanded it is commanded by good deeds and doing Justice

”

The English position is best demonstrated by the

Spycatcher's case in the late 1980s. After the House of Lords

delivered the Spycatcher judgment, the Daily Mirror

published an upside-down photograph of the Law Lords

captioned, “You Old Fools.“ But no contempt action was

initiated against the newspaper.

Lord Templeton, who was a part of the Bench, reportedly

said, “I cannot deny that i am Old; It's the truth. Whether I

am a fool or not is a matter of perception of someone else ...

There is no need to invoke the powers of contempt.“

More recently the Daily Mail ran a photo of the three judges

who issued the Brexit ruling with the caption “Enemies of

the People“, which many thought was excessive. Yet the

courts did not think it necessary to commence contempt

proceedings.

126

The dilemma of law and contempt arises because of the need

to balance two conflicting principles, i.e. freedom of

expression, and fair and fearless justice. But, as Justice

Krishna Iyer said, the law of contempt has a vague and

wandering jurisdiction with uncertain boundaries. Such a

law, regardless of public good, may unwittingly trample

upon civil liberties.

Further, the assumption that respect for the judiciary can be

won by shielding judges from criticism misjudges public

opinion. Surely an enforced silence, in the name of

preserving the dignity of the judiciary , would cause

resentment, suspicion and contempt, more than it would

enhance respect. A mature and “broad-shouldered“

approach to criticism can only inspire public confidence, not

denigrate the judiciary , for justice, as Lord Atkin said, is “no

cloistered virtue“.

Time and now it has been said by Hon’ble Apex Court that, the

purpose of justice commands that the cause of the victim,

deserves to be answered so that miscarriage of justice is avoided.

As the great ocean has only one test, the test of salt, so does

justice has one flavor, the flavor of answering to the distress of the

people without any discrimination. I may hasten to add that the

democratic setup has the potentiality of ruination if a citizen feels,

the truth uttered by a common man is seldom listened to. It is the

127

bounden duty of a Court of law and advocates to uphold the truth

and truth means absence of deceit, absence of fraud and in a case

of fraud upon the Court a real and fair investigation, not an

investigation that reveals itself as a sham one. It is not acceptable.

It has to be kept uppermost that impartial and truthful

investigation is imperative. As has been stated earlier, the facts

are self-evident and the grieved protagonist, should not harbor

the feeling they are is an "orphan under law".

Not for nothing it has been said that Sun rises and Sun sets, light

and darkness, winter and spring come and go, even the course of

time is playful but truth remains and sparkles when justice is

done.

P R A Y E R S:

It is therefore humbly prayed that this Hon’ble Full Bench may be

pleased to:

a) To consider this Preliminary Objection/submission of the

Respondent No. 1, and decide all the issues in view of law and

ratio laid down by Hon’ble Supreme Court in Ashok Agarwal's

case (2014) 3 SCC 602.

b) To appreciate all the case laws in view of Art. 141 of the

Constitution and guidelines given in AIR 1997 SC 2477, AIR

1990 SC 26, Dattani’s case 2013, 2008 ALL MR (Cri.) 751,

128

AIR 2008 SC (supp) 1788, 2014 ALL MR (Cri.) 4113, 2006

ALL MR (Cri.)2269 , MANU/DE/2625/2015,

c) Record a finding that as per law laid down by Constitution

Bench of Hon’ble Supreme Court in Supreme Court Bar

Associatio’s case (1998)4 SCC 409, and in Muthu

Karuppan’s case AIR 2011 SC 1645 Criminal contempt

certainly is a matter between the court and the alleged

contemnor. The person filing an petition before the court does

not become a petitioner in the proceedings. He is just an

informer or relator. His duty ends with the facts being brought

to the notice of the court. AND therefore the petitioners

namely BBA & AAWI have no right of arguments in the present

case.

d) Allow this preliminary objection and discharge the notice

issued to the Respondents.

e) Record a finding that the Petition was filed against the law and

procedure laid down by Full Bench of Hon’ble Supreme Court

in Bal Thackrey’s case [AIR 2005 SC 396] and also against the

rules made by Hon’ble Bombay High Court regulating the

Contempt proceedings and therefore the proceedings under

contempt is vitiated being illegal .

f) Record a finding that the Petition when filed was incomplete as

regards the consent of Advocate General as not granted against

all the respondents and therefore could not have been placed

129

in the Court on judicial side but should have been placed in the

Chamber of Hon’ble Chief Justice of this Hon’ble High Court, as

per law and Rules made under the Contempt of Court's Act

[Vide : AIR 2005 SC 396.].

g) To record a finding that as per law declared by Hon’ble

Supreme Court in Ashok Kumar Agarwal's case (2014) 3 SCC

602 & in MANU/OR/0003?2004, the Contempt jurisdiction

and power has to be exercised only in accordance with the law

and Procedure of Contempt of Court Act. And as per law

declared by Constitution Bench in Supreme Court Bar

Association's case (1998) 4 SCC 409, the Court cannot pass

any order which is beyond the purview of the Contempt of

Courts Act and for which other remedies are available, and

there is no section/procedure for granting any injunction in

the Contempt of Courts Act, 1971 and therefore the order

granting Ex-Parte Injunction on 17th Feb. 2017 and on 22nd

Feb 2017 is illegal, null and void and vitiated and the

petitioners and their counsels are guilty of misleading this

Hon’ble Court and obtaining the order illegally and therefore

the order dated 24th March, 2017 based in previous orders of

injunction is illegal and liable to be recalled and set aside.

h) Record a finding that the Petition is legally not maintainable as

Petitioner though claiming to be authorized by the Association

of BBA & AAWI, but they did not file any copy of the Resolution,

therefore the Petition was liable to be dismissed forthwith in

130

view of the law laid down by Hon’ble Supreme Court in AIR

2015 SC 1198 & (2011) SCC 529, but registry and Advocate

General failed to discharge their duty in ascertaining the

illegality of the Petition.

i) To record a finding that the Petitioner being unregistered

association of persons were not entitled to file any petition in

the High Court in MANU/JH/1906/2012

j) To record a finding that in view of the provisions of Advocates

Act, Bar Council of India Rules and more particularly law laid

down in 2009 (3) CTC 6 and AIR 2014 MAD 133, the

Counsels who are members of the unincorporated petitioner

association and who authorized the Petitioners to file the

present petition cannot act in dual capacity of one as a Lawyer

and one as a petitioner or defacto petitioners, but they acted

against the law and they acted as petitioner and also as an

advocate and therefore they are guilty of violation of law laid

down by this Hon’ble High Court in the case of Court on its own

Motion Vs. N.B. Deshmukh 2011 ALL MR (Cri) 381 (Bom)

(DB) and therefore they are not entitled allowed to argue the

case but they argued the case on 17th February 2017 and 22nd

February 2017 & 24th march, 2017 and therefore the

petitioners and their Counsels are guilty of Contempt of Court.

131

k) To record a finding that in view of law and procedure laid

down by Hon’ble Supreme Court in various cases regarding the

law of Contempt of Court and more particularly by

Constitution Bench in AIR 2014 SC 3020 and in

2017/MANU/DE/0609, it is obligatory that while taking

cognizance of the Contempt, the Ld. Division Bench was duty

bound to see the circumstances in which the publication is

made and the stray words cannot be taken divorced from the

facts and context in which it is made, but the Ld. Division

Bench (Coram: Shri. Justice A.S. Oka and Smt. Justice Anuja

Prabhudessai) in the orders dated 17th February 2017 and 22nd

February 2017 did not mentioned the main incident out of

which sting operation had taken place i.e. the lapse on the part

of Shri. Justice Kathawala in not recording the deposition of the

Public Servant Talathi on 31st August 2016, and also did not

taken into consideration the entire interview before coming to

the conclusion and therefore the order dated 17th February

2017 and 22nd February 2017 are perverse and per-incurium.

l) Record a finding that as per law laid down by Hon’ble

Supreme Court in Muthu Karuppan’s case AIR 2011 SC

1645, it is mandatory that while dealing with criminal

contempt in terms of Section 2(c) of the Act, strict procedures

are to be adhered - 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

132

for contempt and therefore the present proceedings are

vitiated.

m) To record a finding that, as per constitution Bench Judgment in

AIR 1995 SCC 1729, obiter dictum of the Supreme Court also

act as precedent and to be followed by all the courts and

therefore the view of the Hon’ble Supreme Court as published

in Indian Express on 22nd February 2017, at Exhibit – C -

R1, is binding and as per that view the interview of public

regarding corruption is not a contempt on the other hand it

helps the judiciary to know the problems.

Further record that such law is already been laid down by Full

Bench in R. K. Anand’s case 2009 AIR SCW 6876 about

interviews on news channel against malpractices in court

proceedings are covered under freedom of speech as

enschrgined Under Article 19(1) of the Constitution of India.

But then also the petitioners filed such a petition which shows

the malafide intention and contemptuous act of the petitioners

and their counsels.

n) To record a finding that the petitioners filed a petition with

false, misleading affidavits and unconstitutional prayers. When

such dishonesty, illegality is brought to the notice of Court by

the respondents then petitioners BBA & AAWI instead of

tendering apology and withdrawing their dishonest, illegal,

unconstitutional and contemptuous submissions again stand

133

by the same, thereby posing themselves to be above the law,

above Hon’ble High Court and Hon’ble Supreme Court and

therefore as per 'Second Rule' as has been laid down by

Hon’ble Supreme Court in Re: Mulgaonkar’s case (1999) 8

SCC 308, it is must to punish the committee members of BBA &

AAWI along with their counsels to send a message that the

Supremacy is the rule of law over pugnacious, vicious,

unrepentant and malignant gang – up of vested interests

and to show that be you ever so high, the law – the people’s

expression of justice – is above you.

o) To record a finding that the order dated 22nd February 2017

asking petitioners to serve private notices is against the law

and procedure of Contempt of Courts Act and law declared by

Hon’ble Supreme Court which mandates that in contempt

proceedings there should be only two parties, one is Court and

the other is contemnor and there is no justifiable reason given

in the order that without deciding the objection taken by the

respondents about maintainability of the petition to their locus

and legality and they were illegally allowed to intervene and

proceed with the petition as the case being a private litigation

instead of appointing an impartial amicus curiae. And in

absence of any legal justification and reason the order is

vitiated as being unjust exercise of the discretion as had been

ruled in Shaima Zafri's case (2013) SCC.

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p) To record a finding that the order dated 17th February 2017

and 22nd February 2017 is per-incuriam as this Hon’ble Court

adopted the exact opposite procedure which is adopted and

approved by Hon’ble Supreme Court in R.K. Anand’s case

[2009 AIR SCW 6876], where after verifying the truth and

veracity of the sting operation, the persons i.e. the Senior

Counsels who were found to be involved in suborning the

witness were punished and the role of media exposing illegal

activities of the guilty Senior Counsel were appreciated and

also the Junior Advocate Mr. Arvind Nigam who argued against

guilty Senior Counsel, was recommended to the Chief Justice to

suo-motu consider about designating said Mr. Arvind Nigam as

Senior Advocates and to strip-off the designation of guilty

Senior Advocates [vide: 2009 Cri.L.J. 677], but to the contrary

the Ld. Division Bench of this Hon’ble Court issued notices to

the news channel and the persons who exposed the illegality

and therefore the order is perverse & vitiated as being against

the law and procedure set and approved by Hon’ble Supreme

Court.

q) To record a finding that the Petitioner are guilty of misguiding

the Advocate General in obtaining consent and the Ld. Division

Bench in initiating the present proceedings.

r) To record a finding that the Petitioners who themselves are

Advocates and their Counsels representing them are guilty of

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withholding the true legal and factual position from the Court

and they acted against the law laid down by Hon’ble Supreme

Court in E.S. Reddy’s case [(1987) 3 SCC 258] and against the

law ruled by this Hon’ble Court relying on the duty discharged

by Hon’ble Justice A.S. Oka while performing his duty as a

lawyer in the case between Heena Nikhil Dharia Vs.

Kokilaben K. Nyak, order dated 9th December, 2016 in

NOM (L) No. 3117 of 2016, and therefore strict action is

required to be taken against petitioners and their Counsels, in

view of the law laid down in 2011 ALL MR (Cri) 381 also to

direct Bar Council of Maharashtra & Goa to take action against

petitioners and their Counsels Mr. Milind Sathe and Ors.

s) To record a finding that as seen from the allegations made in

the interview and as seen from the order passed by Shri.

Justice S.J. Kathawala, on 31st August, 2016 it is clear that the

deposition of the Public Servant i.e. Talathi were not recorded

by Shri. Justice S.J. Kathawala on 31st August 2016 and there is

no reason given in the order dated 31st August 2016 and in the

subsequent order dated 8th February 2017, on the contrary a

distorted version is mentioned and therefore in view of law

declared by Hon’ble Supreme Court in R.R. Parekh’s case [AIR

2016 SC 3356], it can be said that Shri. Justice S.J. Kathawala

acted with corrupt motive and therefore Shri. Justice S.J.

Kathawala is bound to resign from his post at his own in view

of law laid down by Constitution Bench of Hon’ble Supreme

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Court in K. Veerswami's case (1991) 3 SCC 655. However if

Shri. Justice Kathawala refuse to resign from the post then this

Hon’ble Court may send reference to Hon’ble Chief Justice of

India in view of In House Procedure and law laid down in

(1995) 5 SCC 457.

t) To record a finding that in view of the other facts and materials

available on record it is clear that Shri. Justice S.J. Kathawala is

guilty of breach of the oath taken as a High Court Judge and

acted with biased manner by doing favour to one party

(accused) and disfavour to other party (applicant - Respondent

No. 10) and passed an order by disregarding the evidence of a

public servant i.e. Talathi who was the hub of the decision and

Justice Kathawala invented theories to read meanings in to

documents while the straightforward explanation given by

Talathi was ignored deliberately. further the order passed by

Justice S.J. Kathawala on 8th February, 2017 is passed by

ignoring relevant legal material and case laws of Hon’ble

Supreme Court and considering irrelevant and unlawful

materials by doing labour to help the accused and therefore

the said order is in the category of fraud on power by Judge as

ruled by Full Bench of Hon’ble Supreme Court in Vijay

Shekar's case 2004 (3) Crimes (SC) 33 and therefore Shri.

Justice S.J. Kathawala is guilty of Contempt of his own Court

and also guilty of offences punishable under section 191, 193,

196, 199, 201, 218, 219, 465, 466, 471, 474 r/w 120(B) & 34 of

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I.P.C. and in view of provisions of section 344 of Cr. P.C. as has

been followed by Hon’ble Supreme Court in AIR 1971 SC 1708

& 2002 ALL MR (Cri) 2640, it is necessary to direct C.B.I. to

take appropriate steps to get the proper permission and

sanction from Hon’ble CJI and Hon’ble President of India to

register F.I.R. and prosecute him before competent Court in

accordance with the law, within a period of 3 months in view of

Constitution Bench Judgment in Iqbal Singh Marwah's case

2005 4 SCC 370.

u) To record a finding that the law declared by Hon’ble Supreme

Court in K. Veewswami's case (1991) 3 SCC 655 is only

regarding the registration of F.I.R. against a Judge and have no

bar for High Court in exercising power under section 340 &

344 of Cr. P.C. in directing action against a Judge involved in

offences against administration of justice.

v) To record a finding that as per section 3 (1) (2) of Judges

Protection Act, 1985 the High Court, or Supreme Court or

respective Government are having power and jurisdiction to

direct prosecution of a Judge and when such power is

exercised then the concerned Judge is not having Protection, as

has been ruled in Deelip Sonawane's case 2003(1) B. Cr. C.

727.

w) To record a finding that as per Heydon's Mischief rule as

explained by Hon’ble Supreme Court in Sanjay Dalis's case

MANU/SC/0716/2015 the amendments in Cr. P.C. section

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156(3) & 190 of Cr. P.C. about deemed sanction are applicable

to all cases including cases against Judges and it is obligation of

the State and Central agencies like C.B.I., C.I,D., police to

complete the formalities of sanction and others as has been

done in Justice Nirmal Yadav's case 2011 (4) RCR (Criminal)

809.

x) To record a finding that as per democratic set-up and as per

concept of welfare state, it is duty and obligation of the State

and more particularly of the C.B.I. and Central Vigilance

Commission(C.V.C.) to keep watch on the corruption in High

Courts and Supreme Court and not to wait for the complaints

by the parties.

y) To give proper directions to C.B.I. & CVC to form a time bound

procedure to deal with the complaints against Judges.

z) To record a finding that whenever any corruption in Court is

exposed by a person either based on sting operation or on

sound proofs and if his allegations are found to be sustained

then the C.B.I. is bound to take action against the concerned

Judge as has been done in Jagat Patel's case

MANU/GJ/0361/2017.

aa) To record a finding that when Respondent No. 10 Mr. Ashiq

A. Merchant was aggrieved by the unjust and offensive conduct

of Shri. Justice S.J. Kathawala then he was having right to make

complaint against said Judge to Hon’ble Chief Justice and C.B.I.

and Hon’ble Chief Justice of Bombay High Court. And the

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Hon’ble Chief Justice are bound to act as per In-House-

Procedure, 1999, has been ruled by Hon’ble Supreme Court in

the case of Addl. District Judge "x" Vs. Registrar General

High Court AIR 2015 SC 645.

bb) To record a finding that as proved from the records it is

clear that Respondent No. 1 Adv. Nilesh Ojha has been falsely

implicated by Smt. Justice Roshan Dalvi in 2014, then by Shri.

Justice A.K. Menon in 2016 and the abovesaid false proceedings

were misused by the petitioners to mislead this Hon’ble Court

and this Hon’ble Court (Coram : Shri. Justice Abhay Pka & Smt.

Justice Anuja Prabhudesai) by order dated 22nd Feb, 2017

issued notice to the respondent no. 1, based on the distorted

false and misleading version put up by the petitioners and

therefore Respondent no. 1 Adv. Nilesh Ojha is entitled for ad-

interim Compensation of 10 Crores from the Petitioners.

cc) To record a finding that as per law laid down by Constitution

Bench of Hon’ble Supreme Court in Arun Shourie's case AIR

2014 SC 3020 when any news/interview is published about

the unlawful conduct of the Judge then if the said allegations

are based on truth and fact, then it does not come under the

purview of the Contempt even through the imputations are

such as to deprive the court or Judge of public confidence.

dd) To record finding that whenever there are allegations

agaisnt the Judge then the Court taking cognizance of Contempt

is bound to see the surrounding circumstances under which

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the imputations are made and the order issuing notice should

reflect the application of judicial mind by the concerned court

issuing notice, as has been ruled in MANU/DE/0609/2017,

AIR 2014 SC 3020 ,(2010) 9 SCC 368, (2013) 1 Cal L.T. 65,

MANU/KE /0152/1983.

ee) To record finding that through there is no provision under

Contempt of Court Act, 1971 to grant of any injunction then

also the ex-parte injunction in the nature of prepetual

injunction is obtained by the petitioners malafidely and

therefore the order dated 17th Feb,22nd Feb and 24 th March

of 2017 are vitiated and therefore the said issue has to be

decided urgently and within 30 days as has been ruled by

Hon’ble Supreme Court in the case between Quantum

Securitues Pvt. Ltd. Vs. New Delhi AIR 2015 SC 3699 and

followed by this Hon’ble Court in Gurudas Alavani's case

2016 (6) Bom C. R. 146.

ff) To record a finding that the petition contain the controversial

issue about malpractice/misconduct of Sr. Counsel Mr. Aspi

Chinoy and other in suborning the witness and in the said case

and also in the earlier cases of Contempt notice issued by the

Shri. Juctice Roshan Dalvi in NOM 787/2014 related with the

debatable issue where Mr. Janak Dwarkadas, Sr. Advocate is a

witness and therefore he should not have appeared as a

Counsel in the present matter in view of the Bar Council of

India rules as has been explained in 2009 (3) CTC 6 and in AIR

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2014 MAD 133, 2011 ALL MR (Cri) 381 (Bom) (DB) but

then also he appeared in the present proceeding on 17th Feb.

2017 and therefore he is guilty of acting against the law laid

down by this Hon’ble High Court in 2011 ALL MR (Cri) 381

(N.B. Deshmukh's case) and therefore he is liable to be

proceeded under Contempt of Courts Act and his designation

as a Senior Counsel is liable to be stripped off with further

action against him which this Hon’ble Court deems fit and

proper.

gg) To record a finding that in view of material placed on the

record and in view of the affidavit of respondent accepted by

Division Bench of this Hon’ble Court in Suo-moto Contempt

petition No. 01 of 2014 in order dated 5th Feb. 2015, makes it

clear that Respondent No. 1 Shri. Nilesh Ojha was falsely

implicated by Smt. Justice Roshan Dalvi and the said affidavit

cum apology was only for using harsh language and therefore

the reliance on the said order of Smt. Justice Roshan Dalvi

dated 7th May 2014 was used to misled this Hon’ble Court by

the petitioners by creating prejudice against the Respondent

No. 1 and therefore the petitioners and their Counsel are guilty

of committing perjury and also guilty of Contempt of Court.

Moreover Mr. Janak Dwarkadas, Sr. Advocate who himself

witnessed the incident of 7th May 2014, but then also he

appeared to support such false petition and therefore Mr. Janak

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Dwarkadas is guilty of Gross Contempt and Gross professional

misconduct and perjury.

hh) To record a finding that the reliance placed by the petitioner

on order passed in Notice of Motion (L) No. 3457 of 2015

regarding Contempt notice to the Respondent No. 1 is illegal on

the Count that the same matter is still subjudice and secondly

from the material available on record it is clear that the order

passed by Shri, Justice A. K. Menon is based on the false and

misleading statement of Mr. Aspi Chinoy that the suppression

of Plaintiffs regarding the power of attorney had no relevance

to the case but in fact the suit itself contains the prayer of

declaring the said power of attorney as null and void and also

the other various prayers of the suit are directly or indirectly

related with the said power of attorney but Shri. Justice A.K.

Menon passed the order against the material on record and

therefore Justice A.K. Menon is guilty of passing a wrong order

with corrupt motive to help the accused plaintiffs and guilty

advocate Mr. Aspi Chinoy and therefore Shri. Justice A.K.

Menon is liable to be prosecuted under section 218, 219, 201,

191, 193, 465, 466, 469, 471, 474, 120(B) & 34 of I.P.C. and also

he is guilty to Contempt of Court.

As the prosecution of offender is an obligation of the state,

therefore C.B.I. be directed to passed further with the case

against Shri. Justice A.K. Menon by completing all the

formalities of sanction as has been done in AIR 1971 SC 1708.

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ii) To record a finding that the prayers of the Petitioners asking

blanket injunction against Respondent No.1 who is an

Advocate from approaching any civil and criminal Courts is

unconstitutional and contemptuous in view of law declared in

AIR 2015 SC 326, 2016 (2) Mh. L.J. 75, 1944 SCC Online ALL 34,

and this proves the falling standard of professional ethics on

the part of petitioners and their Counsels and also proves lack

of basic legal knowledge on the part of the Petitioners and their

Counsels and therefore they are unfit to enjoy the noble

profession of advocacy and therefore they should be barred to

appear in the High Court and before any Court for lifetime.

Further record a finding that the prayers to prevent a person

from approaching a court proves that the petitioners are not

having in the faith of the concerned court who is supposed to

pass an order as per law.

jj) To record a finding that the interview given by the

Respondents i.e. Adv. Nilesh Ojha and others is truth of the

event based on law declared by Hon’ble Supreme Court and

covered by freedom of speech and expression as guaranteed

under Article 19 (1) of the Constitution of India.

kk) To record a finding that the Petitioners Mr. Nitin Thakkar,

Vice- President, Bombay Bar Association and Mr. Viresh

Purwant, Secretary, AAWI are guilty of suppression, twisting

and dishonest concealment of fact and along with their

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Advocates they are guilty of drafting a Petition with a distorted

version with ulterior motive and this iseue has to be decided as

per guidelines of Hon’ble High Court'ble Supreme Court in para

20,21 of Ashok Agrawal's case (2014) 3 SCC 602 and after

appreciatng the issue please to record a finding that

Petitioners Mr. Nitin Thakkar, Vice- President, Bombay Bar

Association and Mr. Viresh Purwant, Secretary, AAWI are liable

to be prosecuted and they are also liable to pay the

Respondents an interim compensation of Rs. 10 Crores each. In

view of law and ratio laid down in R.K. Jain's case (2010) 8

SCC 841 & in Baduvan Kunhi's case MANU/KE/0828/2016.

ll) To pass appropriate order directing the Registrar of this

Hon’ble High Court to make arrangement for video recording

of the present proceeding in the interest of justice and equity.

mm) To pass appropriate order directing the Registrar of this

Hon’ble High Court to make arrangement for display of the CD

submitted by the petitioners as the version setforth in

transcript is different from what has been shown in the

interview.

nn) To record a finding that the submission given by Petitioners

and their Counsel which is recorded by this Hon’ble Court in

para 3 of the order dated 17th February 2017 that the

interview of the Respondent No.1 was already on record on the

Compact Disk marked at Exhibit – ‘B-1’ attached to the petition

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given to Advocate General on 14th February 2017, whose

transcription is shown at "Exh. 2 - A" is an out and out false

statement as the said video is infact uploaded on 15th February

2017, Therefore the petitioners Mr. Nitin Thakkar and Mr.

Viresh Purwant are guilty of misleading the Advocate General

and also misleading this Hon’ble Court and therefore they are

liable to be punished under sections 191, 193, 199, 196, 200,

465,466, 471, 474 r/w 120(B) of the Indian Penal Code and

also guilty of committing Contempt of Court under section 14

of the Contempt of Courts Act and they are liable to be

prosecuted in view of law laid down by Hon’ble Supreme Court

in the case of 2000(1) SCR 367 (Murray & Co.), (2008) 12

SCC 841 (K.D. Sharma’s case), 2016(3) Punj. L. R. 28

(Sciemed Overseas case), 2013 (1) ALL MR 153,

2016/MANU/KE/0828.

oo) Further the petitioners Mr. Nitin Thakkar, Mr. Viresh

Purwant & President of BBA & President of AAWI be directed

to remain present in the Court as the respondents No. 1 wants

to cross-examine them and the respondent no. 1 and others be

permitted to Cross-examine the witnesses.

pp) To record a finding that while making complaint and

exposing illegalities done by Justice S.J. Kathawala by not

recording a deposition of witness to favor the accused, the

Respondents in fact performed their duty as enshrined under

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Article 51(A)(h) of the Constitution of India as explained by

Hon’ble Supreme Court in R.K. Jain’s case [(2010) 8 SCC 841]

which is upheld by Full Bench of Hon’ble Supreme Court in

Arun Shourie’s case. AIR 2014 SC 3020 and also explained in

Anirudha Bahal's case 2010 (119) DRJ 104.

qq) To record a finding that the Petitioners made a categorical

false statement in their petition in para 3.11 that Shri. Justice

Kathawala done no wrong. In fact whatever is shown in video/

sting operation and in the complaint filed by the Respondent

No. 10 make it clear that Shri. Justice Kathawala is guilty of

Fraud on power to help the accused and the allegations are

based on factual and legal positions but the Petitioners put a

distorted version before this Hon’ble Court and obtained an

order by misleading this Hon’ble Court.

rr) To record finding that the term Independence of Judiciary has

its true meaning as explained by Hon’ble Supreme Court in the

case between C. Ravichandran Iyer Vs. Justice A.M.

Bhattacharjee and Ors. (1995) 5 SCC 457 where it is ruled

that the Judge should be free from any outside pressure

including his prejudices and the guarantee of tenure and its

protection by the Constitution would not accord sanctuary for

corruption and misbehavior, and bad conduct or bad behavior

of a Judge needs correction to prevent erosion of public

confidence in the efficiency of judicial process or dignity of the

147

institution or credibility to the judicial office held by the

obstinate Judge.

ss) To record a finding that as per Supreme Court in C.

Ravichandran's case (1995) 5 SCC 457, it is duty of Judge to

maintain high standard of conduct as Judicial office is a public

trust. Society is entitled to except that a Judge must be a man of

high integrity, honesty and required to have moral vigour,

ethical firmness and impervious to corrupt or venial

influences. He is required to keep most exacting standards of

propriety in judicial conduct. Any conduct which tends to

undermine public confidence in the integrity and impartiality

of the court would be deleterious to the efficacy of judicial

process. Society, therefore, expects higher standards of

conduct and rectitude from a Judge. Unwritten code of conduct

is writ large for judicial officers to emulate and imbibe high

moral or ethical standards expected of a higher judicial

functionary, as wholesome standard of conduct which would

generate public confidence, accord dignity to the judicial office

and enhance public image, not only of the Judge but the court

itself. It is, therefore, a basic requirement that a Judge's, official

and personal conduct be free from impropriety ; the same must

be in tune with the highest standard of propriety and probity.

The standard of conduct is higher than expected of a layman

and also higher than expected of an advocate. In fact, even his

private life must adhere to high standards of probity and

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propriety, higher than those deemed acceptable for others.

Therefore, the Judge can ill-afford to seek shelter from the

fallen standard in the society.

the holder of office of the judge of the Supreme Court or the

High Court should, therefore, be above the conduct of ordinary

mortals in the society. The standards of judicial behavior, both

on and off the Bench, are normally high. The conduct that tends

to undermine the public confidence in the character, integrity

or impartiality of the Judge must be eschewed. It is expected of

him to voluntarily set forth wholesome standards of conduct

reaffirming fitness to higher responsibilities.

To keep the stream of justice clean and pure, the Judge must

be endowed with sterling character, impeccable integrity and

upright behavior. Erosion thereof would undermine the

efficacy of the rule of law and the working of the Constitution

itself. The Judges of higher echelons, therefore, should not be

mere men of clay with all the frailties and foibles, human

failings and weak character which may be found in those in

other walks of life. They should be men of fighting faith with

tough fibre not susceptible to any pressure, economic, political

or any sort. The actual as well as the apparent independence of

judiciary would be transparent only when the office holders

endow those qualities which would operate as impregnable

fortress against surreptitious attempts to undermine the

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independence of the judiciary. In short, the behavior of the

Judge is the bastion for the people to reap the fruits of the

democracy, liberty and justice and the antithesis rocks the

bottom of the rule of law.

tt) To record a finding that the present Contempt Petition is filed

by petitioners with oblique motive to divert the attention from

the main issue of the wrong done by Justice S.J. Kathawala,

Justice V.M. Kanade, Justice A.K. Menon, Adv. Aspi Chinoy, Adv.

Vishal Kanade and Ors.

uu) To record a finding that first the petitioner filed the present

Contempt Petition dishonestly by putting distorted version by

suppressing, twisting of the fact and the petitioner obtained

first order on 17th Feb 2017 by misleding the Hon’ble Court

secondly when the falsity and dishonesty of the petitioner is

exposed by Respondent no.1on 17th and on 21 Feb 2017 by

filing Criminal appication no. 01 of 2017, then instead of

tendering apology the petitioners again filed additional

affidavits and obtainded order on 22nd Feb 2017 and on 24th

March 2017 and therefore the petioners are guilty of gross

contempt and liablble to be punished as per law laid down by

Hon’ble Supreme Court in Afzal's case AIR 1996 SC 2326.

vv) To consider and decide that the application filed by the

Respondent No. 1 being Cri. Application No. 1 of 2017 in

present Contempt Petition No. 03 of 2017 and take appropriate

action against the petitioners and their Counsels as per Section

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340 of Criminal Procedure Code for their other false and

misleading statements on Oath in their affidavit and also take

action against persons authorizing the petitioners i.e. BBA &

AAWI in filing such frivolous petition.

Hence submitted with utmost respect.

Mumbai ______________________

Date ..…/…./2017 Adv. Nilesh C. Ojha

Respondent No. 1

VERIFICATION

I Nilesh s/o Chandrabhushan Ojha age 41 Years, r/o 703, Chembur

Castle, N. B. Patil Marg, Chembur, Mumbai – 400071, takes oath and on

solemn affirmation states that whatever hereinabove stated is correct

to the best of my own personal knowledge and I believe the same to be

true.

Mumbai.

Dated : 1st April 2017

Adv. Nilesh C. Ojha

Respondent No. 1