RMRJ: 21.04.2016

WP Nos.35011-12/2015

ORDER Petitions are filed calling in question the order

dated 6.8.2015 Annexure-AN of the Principal Secretary,

Revenue Department, Bengaluru and the Government

Order dated 11.8.2015 Annexure-AO, rejecting

petitioners’ representation and directing the Special

Deputy Commissioner/Deputy Commissioner to resume

the schedule lands along with structures thereon; and to

cancel the allotment in favour of Joy Ice Creams Pvt. Ltd.

with direction to the Special Deputy Commissioner to

resume land along with building thereon, respectively.

2. Respondents-1 to 5 are represented by learned

Additional Advocate General while respondents-6 and 7

by learned counsel. The petition when heard on

19.8.2015, the following order was passed:

“The State Government, by communication dated 20.10.2005, to the Special Deputy Commissioner, Bengaluru, directed that the land measuring 3 acres 23 guntas in Sy.No.42 of Pattanduru Agrahara, Krishnarajapura

Hobli, Bengaluru, be allotted to the Karnataka

: 2 :

Industrial Area Development Board (‘KIADB’ for short), who inturn was required to allot the same to M/s Joy Ice Creams Pvt. Ltd./respondent No.6 on securing payment of

Rs.4,28,24,925/-. The ‘KIADB’ was allotted the said land by order dated 31.03.2006 of the Deputy Commissioner invoking Rule 20I of the Karnataka Land Grant Rules, 1969, imposing certain conditions. Following said allotment and having regard to the Government Order, ‘KIADB’ executed a deed dated 21.07.2006 conveying the said property in favour of M/s Joy Ice Creams Pvt. Ltd., for a valuable consideration and put it in possession. Thereafterwards, the purchaser having received valuable consideration is said to have conveyed

and put the petitioner in possession of the said land. Petitioner obtained necessary permission and sanction of building plan from the authority and put up construction of a multistoried residential building consisting of 21 floors and 4 villas, since the land fell within the residential zone under the Revised Master Plan, 2015.

The order dated 31.3.2006 of the Deputy

Commissioner granting land to ‘KIADB’ imposed 5 conditions relating to use of the land

for the purpose for which it was granted, as also, to retain portion of the land, if necessary for a public purpose on a later date. The State Government, it is submitted, by communication dated 29.07.2011, is said to have withdrawn the condition relating to non-alienation of the said land, followed by Deputy Commissioner issuing a corrigendum dated 02.08.2011, withdrawing all the conditions of the grant.

When things stood thus, the State by

order dated 22.05.2015 and the Deputy

Commissioner by order dated 23.5.2015, cancelled the grant in favour of M/s Joy Ice

: 3 :

Creams Pvt. Ltd., on the premise that it had violated the conditions of grant. Those orders when challenged in W.P. No.22880/2015, a learned Single Judge by order dated

08.06.2015, Annexure-AL, set-aside the order, on the premise of violation of principles of natural justice and remitted the proceeding for consideration afresh. On remand, the State, by order dated 11.8.2015, Annexure-AO, cancelled the grant and directed resumption of land. Hence these petitions.

Sri Udaya Holla, learned Senior Counsel, reiterates the aforesaid facts that in the light of petitioner having purchased the land in question for valuable consideration, there being

no conditions attached to the grant made by the Deputy Commissioner, there was no question of violation of any terms of grants by either the petitioner or his vendor-in-title. Learned Senior Counsel further submits that in the light of the constructions having come up on the land and the State Government yet to take possession of the land, interim order as prayed for be granted.

Sri A.G.Shivanna, learned Additional

Advocate General submits that without going

into merit or demerit of the case putforth by the petitioner, time be granted for filing statement of objections. It is further submitted that a Division Bench in W.P.Nos.55974-976/2013 (PIL), by order dated 27.07.2015 observed that petitioner arraigned as respondent No.7 therein had no locus standi to challenge the order as his vendor has violated the terms of the order of allotment by not establishing an industry and sold land for building purpose for erection of building complex and accordingly disposed of writ petition directing authorities to initiate

proceeding for violation of directions of allotment after extending reasonable

: 4 :

opportunity to all concerned in the matter. Learned AAG further submits that possession of land was stayed as indicated in the order which was quashed by this Court on earlier

occasion and that order of the learned single Judge records that parties maintain status quo. Parties are directed to maintain status quo relating to possession of immovable property in question until further orders.

Statement of objections by 09.09.2015.” 3. On 19.9.2015, petitions were adjourned at the

request of counsel for respondents to file statement of

objections by 22nd September 2015, on which date, at

the request of learned AAG, was adjourned to 6.10.2015,

whence the following order was passed:

“Learned AAG – Sri. Shivanna, points to the note sheet maintained in the file disclosing that Late Sri M.P.Prakash, the then Deputy Chief Minister directed the grant of 03 acres 23 guntas of land in survey No.42 of Pattandur

Agrahara in favour of Karnataka Industrial Area Development Board, a Statutory Body constituted under the Karnataka Industrial Area Development Act, 1966, for allotment to M/s.Joy Ice-Creams Company, without any conditions except to pay a certain sum of money as consideration. This note led to the allotment of land to KIADB, who in turn, collected the value of the land as directed by the government, from M/s. Joy Ice-Creams Company and executed sale deed conveying the land absolutely without reserving any right.

: 5 :

Sri. Shivanna, learned AAG points to Rule 20I and Rule 20(d) of the Karnataka Land Grant Rules, 1969 to submit that under Rule 20I, the grant is not free of cost, but on the payment of

price while grant under Rule 20(d) to the Statutory Organization, is free of cost. According to learned counsel, the grant was under Rule 20I in favour of KIADB for 50% of the value of the property.

Learned AAG further submits that the

condition imposed by the Deputy Commissioner, more appropriately, relating to non-alienation of the land conveyed to M/s. Joy Ice-Creams Company was valid and binding in the light of the Rules and the subsequent order

Annexure-J preceded by an order of the Government directing deletion of non-alienation Clause in the grant order was not an order of a Competent Authority and therefore, the order passed by the Deputy Commissioner canceling all the conditions imposed is a nullity. In addition, it is submitted that execution of an absolute sale deed by KIADB in favour of M/s. Joy Ice-Creams Company conveying the land is void. At this stage, learned AAG having read Section 31 of the Specific Relief Act, 1963, submits that he requires some more time to

examine the said issue.

In the meanwhile, petitioner to place before Court an affidavit showing the loss that it is sustaining on a daily basis.

List on 14.10.2015 for further hearing.”

4. Since the President of the 7th respondent at a

press meet made statements published in Kannada

Prabha News Paper, expressing apparent bias,

: 6 :

apprehension that justice would not be done in a fair

and unprejudiced manner, making unwarranted

allegations against the Presiding Judge and the Court,

though without mentioning the name, there was a need

to pass the following order on 30.10.2015:

“Today is a sad day in the history of State of Karnataka, City of Bangalore and India, in particular. The 7th respondent, represented by its President without awaiting a decision of this Court approached the press expressing apparent bias, apprehension that justice would

not be done in a fair and unprejudiced manner and unwarranted allegations against the Court and the Presiding Judge without mentioning the name. 2. The 7th respondent’s President present before Court, as identified by his learned counsel after reading the contents of the material published in ‘Kannada Prabha’ newspaper, Bengaluru edition, dated 29.10.2015, submits that the contents though based upon a written press release given to the

press by him nevertheless several portions of the written press release are not printed by the editor of ‘Kannada Prabha’ newspaper, Bengaluru edition. 3. There is no necessity to extract the contents of the publication in the newspaper at this stage. Suffice it to state, unsubstantiated allegation that one Presiding Judge has colluded with the petitioner, is made much of. 4. Under Article 215 of the Constitution every

High Court is said to be a Court of record and shall have all the powers of such a Court

: 7 :

including the power to punish for contempt of itself. 5. It is useful to notice certain traditions and

principles in the matter of conduct of litigants and Judges. Judges being under the Constitution and not over it have an important role to play in order that our Republic lives upto the promise under the Constitution. Judges are chosen with a high value of the Constitution and the rights of the people. Winston Churchill expressed in the House of Commons “Humanity, not legality is the quintessence and conscience of the courts’ functionality”. Judges being humans and ordinarily of high standards, rarely commit serious salacious or fundamental

flaws, hence the hierarchy for decisional review and correctional reversal. It is therefore, that the judiciary has a sublime status and commands the reverence of the people which is a great tribute to this national institution and necessarily, judges have the highest duty to the people in administration of justice, based on

fearless truth, moral rectitude and negation of addiction for power and lucre. 6. The Apex Court in R.Vishwanathan –v-Abdul Wajid1 the Supreme Court observed

thus: “ If every remark of a Judge made from the bench is to be construed as indicating prejudice, I am afraid most judges will fail to pass the exacting test. In the course of arguments, judges express opinions, tentatively formed, sometimes even strongly; but that does not always mean that the case has been prejudged. An argument in court can never be effective if the judges do not sometime point out what appears to be the underlying fallacy in the apparent plausibility thereof and any lawyer or

1 AIR 1963 SC page 1

: 8 :

litigant who form an apprehension on that score, cannot be said to be reasonably doing so. It has frequently been noticed that the objection of a judge breaks down on a closer examination

and often enough, some judges acknowledge publicly that they were mistaken. Of course, if the Judge unreasonably obstructs the flow of an argument or does not allow it to be raised, it may be said that there has been no fair hearing. 17. In M.Y.Shareef and another –v- Hon’ble

Judges of the Nagpur High court and others2 in a matter of an application for transfer of a case from the Bench hearing it to another on the basis of the observations and references of Judges created bonafide

belief in the applicants’ mind that they were prejudiced against them, it was held that the application for transfer constituted contempt because the Judges were Jcandalizin with a view to divert justice and the two advocates who signed and prosecuted the application were found guilty of contempt. The Supreme Court further held that when there is a conflict between the obligation of a counsel to the court and his duty to his client, it is the former which prevails by observing thus:

“when counsel signed applications or pleadings containing matter Jcandalizing the court without reasonably satisfying themselves about the prima facie existence of adequate grounds Jcandaliz, with a view to prevent or delay the course of justice are themselves guilty of contempt of court and that it is no duty of the counsel to his client to take any interest in such application; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.”

2 AIR 1955 SC 19

: 9 :

(emphasis supplied) 8. In Radha Mohanlal –v- Rajasthan High court3 the Apex court held that the liberty of expression cannot be equated or confused with

a licence to make unfounded and irresponsible allegations against the judiciary as the effect is lowering of the dignity and authority of the court and an affront to the majesty of justice. 9. It is no doubt true that the administrative power of the Hon’ble the Chief Justice to constitute Benches providing rosters and transfer of cases is His prerogative, however, it is the prerogative of the concerned judge to recuse himself from hearing if in the facts and circumstances necessitates the judge from doing so. Thus, the duty of the Judge is to hear and

dispose off the cases allocated by the Hon’ble the Chief Justice, while the propriety not to hear the matter lies with the concerned Judge and not either the litigant or his learned counsel. 17. In Dr.D.C.Saxena and Dr.D.C.Saxena

Contemnor –v- Hon’ble the Chief Justice of India4 the Apex Court held thus:

“xxxx when an advocate or a party appearing before the court requires to conduct himself in a manner befitting to the dignity and

decorum of the court, he cannot have a free licence to indulge in writing in the pleadings the scurrilous accusations or scandalisation against the Judge or the Court. If the reputation and dignity of the Judge, who decides the case are allowed to be prescribed in pleadings, the respect for the court would quickly disappear and the independence of the judiciary would be a thing of the past.”

3 (2003) 3 SCC 427

4 AIR 1996 SC 2481

: 10 :

11. In the context of litigants and lawyers attempting to get a case released from a judge, the Supreme court in Chetak Construction Ltd., -v- OM Prakash and others5 deprecated

such a practice as it would tantamounts to forum shopping, an interference with administration of justice. 12. In Municipal Corporation of Greater Bombay –v- Annatte Raymond Uttanwala (Smt)6 it is observed that some adopt sophisticated method while others crude ways in perverting the administration of justice at various levels and therefore, they must be brought to book as there is no other way to stem the rot and arrest the degeneration that has set

in the profession and in the administration of justice. It is made clear that legal profession is a service profession and not a trade or business and the courts of law are not shopping centres and in the interest of administration of justice an example be made of errant member of the profession. 13. The contempt power is secured by statutory authority and by specific Articles implicit in the constitution itself where even free speech, although a fundamental right, is subject to courts’ contempt power. It is no doubt true that

such power is to be exercised with circumspection. Lord Denning once said “Insults are best treated with disdain.” In another occasion the decision to dismiss a petition for contempt, by none other than the Attorney General who wrote in the ‘Time’ that Denning was an ass, is the Judges’ excellent performance. 17. The publication in question contains

scurrilous and defamatory statements in the form of allegation against a Presiding

5 (1991) 3 SCC 600

6 (1987) Crl. Law Journal 1038 (Bombay DB)

: 11 :

Judge by a person representing as the president of respondent No.7 in the petition being heard by the Presiding Judge. It is useful to quote Justice

V.Krishna Iyer: ‘ It is time for one and all to review the value of the great saint “God sleeps in the mineral, wakes in the vegetable, walks in the animal and thinks in man”.’ Judges, it must be remembered, do not yield to frivolous and trivial grounds or suggestions of apparent bias since it would place a burden on Judge’s colleagues and encourage parties to believe that by such disqualification they may have their cases transfer from a Judge whom they wish to avoid.

15. Having given an objective, fair and reasonable consideration to the contents of the publication in ‘Kannada Prabha’, Bengaluru edition, dated 29.10.2015, it is obvious that the contents do not present a real possibility of apparent bias so as to disqualify myself from passing a final Judgment. The 7th respondent, represented by its President though brazenly seeks to slander courts’ reputation, without for a moment, indicating that the President of the 7th respondent is successful in seeking a

disqualification to have the petition heard by another, to avoid this Court, in order to uphold the majesty of the judiciary, at this stage, I refrain from taking action against the President of the 7th respondent, though he ought to suffer the consequence. 16. Registrar General is directed to issue notice to the Editor of ‘Kannada Prabha’, daily, Bengaluru edition, to show cause as to why action in accordance with law should not be initiated for the publication while extending an

opportunity to the President of the 7th respondent to file his explanation in the form of

: 12 :

an affidavit as to why action should not be taken against him, in compliance with the principles of natural justice. 17. After dictating the order, the President of

the 7th respondent took fifteen minutes of public time to drop names of stalwart judges of the Supreme Court and several High Courts before whom he espoused several to public interest litigations, while also quoting several noteable quotes. 18. The question is not about the integrity or the successful attempts of the President of the 7th respondent in espousing cause of public but the real question is, whether the allegation against a Presiding Judge and the Court

tantamounts to demeaning the very institution, in short, whether it amounts to contempt of court ? As noticed supra, free speech does not mean one can say anything and get away with impunity and, if found derogatory, more so emanating from the President of the 7th respondent a party in the pending petition before Court, must suffer the consequences. In fact there was no necessity to rush to the press to have his arguments heard through the press when he has the assistance of a learned counsel.

17. It is in this backdrop, the President of the

7th respondent, as well as the Editor of ‘Kannada Prabha’ daily, Bengaluru edition, are directed to submit their explanations in the form of affidavits.

Re-list on 5.11.2015.” 5. At this stage, the 7th respondent filed a memo for

recusal dated 5.11.2015, reiterating the apprehensions

and expressing what the public and media had stated in

: 13 :

the press meet called by 7th respondent. Hence,

requested, the Presiding Judge to recuse from hearing

and to post the matter before any other Bench.

6. On 5.11.2015, the editor of Kannada Prabha

Daily filed an affidavit while the editor of ‘Hosa

Digantha’, Hubbali Edition, had not complied with the

order dated 30.10.2015 and hence, was directed to be re-

listed on 17.11.2015. On that day, the following order

was passed:

“ Sri D.N.Nanjunda Reddy, learned senior Counsel for the Editor-in-Chief of ‘Kannada Prabha’ files two memos, to the first of which is enclosed, a pen drive containing soft copy of recording of press meet held on 28.10.2015 by the President of 7th respondent and a compact disk also recording the same, while to the second is enclosed a draft of the apology to be published in six editions of Kannada Prabha.

Learned senior Counsel files an

additional affidavit of Sugata Srinivasaraju, Editor-in-Chief, interalia, tendering an unconditional apology and deep regret over the action in carrying the publication in question in the newspaper, having now realized that a much more sensitive, conscientious and responsible approach ought to have been adopted in carrying out the publication in question.

The explanation in the form of an affidavit of the President of 7th respondent

: 14 :

contains statements which, according to the learned counsel, are perceptions of the deponent based on documents, on instruction of the deponent and the views voiced in the

press conference was the subjective analysis based upon objective documents available with the deponent. The two letters Annexures-B and B1 though not addressed to the deponent is sought to be utilized in support of the explanation of the deponent.

To a question of the Court to the learned

counsel as to from whose custody copies of these letters were secured, learned counsel on instruction submits that persons in the office of the Principal Secretary Revenue

Department, who had access to the documents handed over the copies of the letters.

It is needless to state that when the

deponent is legally bound by oath to state the truth by making a declaration upon a subject, having made the statement that Annexures-B and B1 are unauthenticated copies, the deponent is bound to answer as to from whose custody the documents were secured.

The video recording of the press meet,

was played on the Laptop and displayed on a large screen in the court hall on the direction of the Court and having witnessed the same, the deponent of the affidavit states that though it is not the full version of the press meet nevertheless, what is recorded therein is admitted.

Notice issued to the editor of

‘Hosadigantha’, Hubli edition, though served as indicated in the postal track system, is conspicuously absent. Registry to ascertain the

name of the editor of ‘Hosadigantha’ Daily and issue notice through court and the process

: 15 :

server from the District Court Dharwad/Hubli, fixing the date of hearing as 26th November, 2015 and specifying that his absence on the next date, proceedings in accordance with law

would be initiated including securing his presence in a manner known to law.

The President of 7th respondent to file

affidavit indicating the names address and designation of the persons who handed over copies of Annexures-B and B1 to the deponent, by the next date of hearing, after service of copies on the learned counsel for the State.

Relist on 26.11.2015.”

7. On 26.11.2015, taking on record the objections

filed by Editors of two paper editions and accepting their

unconditional apology, the following order was passed :

“On 30.10.2015 the following order was passed:

“Today is a sad day in the history of State of Karnataka, City of Bangalore and India, in

particular. The 7th respondent, represented by its President without awaiting a decision of this Court approached the press expressing apparent bias, apprehension that justice would not be done in a fair and unprejudiced manner and unwarranted allegations against the Court and the Presiding Judge without mentioning the name. 2. The 7th respondent’s President present before Court, as identified by his learned counsel after reading the contents of the

material published in ‘Kannada Prabha’ newspaper, Bengaluru edition, dated

: 16 :

29.10.2015, submits that the contents though based upon a written press release given to the press by him nevertheless several portions of the written press release are not printed by the

editor of ‘Kannada Prabha’ newspaper, Bengaluru edition. 3. There is no necessity to extract the contents of the publication in the newspaper at this stage. Suffice it to state, unsubstantiated allegation that one Presiding Judge has colluded with the petitioner, is made much of. 4. Under Article 215 of the Constitution every High Court is said to be a Court of record and shall have all the powers of such a Court

including the power to punish for contempt of itself. 5. It is useful to notice certain traditions and principles in the matter of conduct of litigants and Judges. Judges being under the Constitution and not over it have an important role to play in order that our Republic lives upto the promise under the Constitution. Judges are chosen with a high value of the Constitution and the rights of the people. Winston Churchill expressed in the House of Commons

“Humanity, not legality is the quintessence and conscience of the courts’ functionality”. Judges being humans and ordinarily of high standards, rarely commit serious salacious or fundamental flaws, hence the hierarchy for decisional review and correctional reversal. It is therefore, that the judiciary has a sublime status and commands the reverence of the people which is a great tribute to this national institution and necessarily, judges have the highest duty to the people in administration of justice, based on fearless truth, moral rectitude and negation of addiction for power and lucre.

: 17 :

6. The Apex Court in R.Vishwanathan –v-Abdul Wajid1 the Supreme Court observed thus: “ If every remark of a Judge made from the

bench is to be construed as indicating prejudice, I am afraid most judges will fail to pass the exacting test. In the course of arguments, judges express opinions, tentatively formed, sometimes even strongly; but that does not always mean that the case has been prejudged. An argument in court can never be effective if the judges do not sometime point out what appears to be the underlying fallacy in the apparent plausibility thereof and any lawyer or litigant who form an apprehension on that score, cannot be said to be reasonably doing so.

It has frequently been noticed that the objection of a judge breaks down on a closer examination and often enough, some judges acknowledge publicly that they were mistaken. Of course, if the Judge unreasonably obstructs the flow of an argument or does not allow it to be raised, it may be said that there has been no fair hearing. 17. In M.Y.Shareef and another –v- Hon’ble

Judges of the Nagpur High court and others2 in a matter of an application for transfer of a case from the Bench hearing it

to another on the basis of the observations and references of Judges created bonafide belief in the applicants’ mind that they were prejudiced against them, it was held that the application for transfer constituted contempt because the Judges were Jcandalizin with a view to divert justice and the two advocates who signed and prosecuted the application were found guilty of contempt. The Supreme Court further held that when there is a conflict between the obligation of a counsel to the

1 AIR 1963 SC page 1

2 AIR 1955 SC 19

: 18 :

court and his duty to his client, it is the former which prevails by observing thus:

“when counsel signed applications or pleadings

containing matter Jcandalizing the court without reasonably satisfying themselves about the prima facie existence of adequate grounds Jcandaliz, with a view to prevent or delay the course of justice are themselves guilty of contempt of court and that it is no duty of the counsel to his client to take any interest in such application; on the other hand, his duty is to advise his client for refraining from making allegations of this nature in such applications.” (emphasis supplied)

8. In Radha Mohanlal –v- Rajasthan High court3 the Apex court held that the liberty of expression cannot be equated or confused with a licence to make unfounded and irresponsible allegations against the judiciary as the effect is lowering of the dignity and authority of the court and an affront to the majesty of justice. 9. It is no doubt true that the administrative power of the Hon’ble the Chief Justice to constitute Benches providing rosters and transfer of cases is His prerogative, however, it is the prerogative of the concerned judge to

recuse himself from hearing if in the facts and circumstances necessitates the judge from doing so. Thus, the duty of the Judge is to hear and dispose off the cases allocated by the Hon’ble the Chief Justice, while the propriety not to hear the matter lies with the concerned Judge and not either the litigant or his learned counsel. 10. In Dr.D.C.Saxena and Dr.D.C.Saxena Contemnor –v- Hon’ble the Chief Justice of India4 the Apex Court held thus:

3 (2003) 3 SCC 427

4 AIR 1996 SC 2481

: 19 :

“xxxx when an advocate or a party appearing before the court requires to conduct himself in a manner befitting to the dignity and decorum of the court, he cannot have a free

licence to indulge in writing in the pleadings the scurrilous accusations or scandalisation against the Judge or the Court. If the reputation and dignity of the Judge, who decides the case are allowed to be prescribed in pleadings, the respect for the court would quickly disappear and the independence of the judiciary would be a thing of the past.” 11. In the context of litigants and lawyers attempting to get a case released from a judge, the Supreme court in Chetak Construction

Ltd., -v- OM Prakash and others5 deprecated such a practice as it would tantamounts to forum shopping, an interference with administration of justice. 12. In Municipal Corporation of Greater Bombay –v- Annatte Raymond Uttanwala (Smt)6 it is observed that some adopt sophisticated method while others crude ways in perverting the administration of justice at various levels and therefore, they must be brought to book as there is no other way to stem

the rot and arrest the degeneration that has set in the profession and in the administration of justice. It is made clear that legal profession is a service profession and not a trade or business and the courts of law are not shopping centres and in the interest of administration of justice an example be made of errant member of the profession. 13. The contempt power is secured by statutory authority and by specific Articles implicit in the constitution itself where even free speech,

5 (1991) 3 SCC 600

6 (1987) Crl. Law Journal 1038 (Bombay DB)

: 20 :

although a fundamental right, is subject to courts’ contempt power. It is no doubt true that such power is to be exercised with circumspection. Lord Denning once said

“Insults are best treated with disdain.” In another occasion the decision to dismiss a petition for contempt, by none other than the Attorney General who wrote in the ‘Time’ that Denning was an ass, is the Judges’ excellent performance. 17. The publication in question contains

scurrilous and defamatory statements in the form of allegation against a Presiding Judge by a person representing as the president of respondent No.7 in the

petition being heard by the Presiding Judge. It is useful to quote Justice V.Krishna Iyer:

‘ It is time for one and all to review the value of the great saint “God sleeps in the mineral, wakes in the vegetable, walks in the animal and thinks in man”.’ Judges, it must be remembered, do not yield to frivolous and trivial grounds or suggestions of apparent bias since it would place a burden on Judge’s colleagues and encourage parties to believe that by such disqualification they may

have their cases transfer from a Judge whom they wish to avoid. 15. Having given an objective, fair and reasonable consideration to the contents of the publication in ‘Kannada Prabha’, Bengaluru edition, dated 29.10.2015, it is obvious that the contents do not present a real possibility of apparent bias so as to disqualify myself from passing a final Judgment. The 7th respondent, represented by its President though brazenly seeks to slander courts’ reputation, without for

a moment, indicating that the President of the 7th respondent is successful in seeking a

: 21 :

disqualification to have the petition heard by another, to avoid this Court, in order to uphold the majesty of the judiciary, at this stage, I refrain from taking action against the President

of the 7th respondent, though he ought to suffer the consequence. 16. Registrar General is directed to issue notice to the Editor of ‘Kannada Prabha’, daily, Bengaluru edition, to show cause as to why action in accordance with law should not be initiated for the publication while extending an opportunity to the President of the 7th respondent to file his explanation in the form of an affidavit as to why action should not be taken against him, in compliance with the

principles of natural justice. 17. After dictating the order, the President of the 7th respondent took fifteen minutes of public time to drop names of stalwart judges of the Supreme Court and several High Courts before whom he espoused several to public interest litigations, while also quoting several noteable quotes. 18. The question is not about the integrity or the successful attempts of the President of the

7th respondent in espousing cause of public but the real question is, whether the allegation against a Presiding Judge and the Court tantamounts to demeaning the very institution, in short, whether it amounts to contempt of court ? As noticed supra, free speech does not mean one can say anything and get away with impunity and, if found derogatory, more so emanating from the President of the 7th respondent a party in the pending petition before Court, must suffer the consequences. In fact there was no necessity to rush to the press

to have his arguments heard through the press

: 22 :

when he has the assistance of a learned counsel. 19. It is in this backdrop, the President of the

7th respondent, as well as the Editor of ‘Kannada Prabha’ daily, Bengaluru edition, are directed to submit their explanations in the form of affidavits. Re-list on 5.11.2015.”

2. The order dated 5.11.2015 reads thus:

“Ms.Nalina Maye Gowda, learned counsel files power and an affidavit of one Sugata Srinivasaraju, S/o Sri Srinivasaraju, claiming to be Editor-in-Chief, Kannada Prabha, Kannada

Daily, who is present in Court, as identified by the learned Counsel. Sri D.N.Nanjunda Reddy, learned senior Counsel for the said Editor submits that an error of judgment has crept in recording the caption in the news paper in respect of the news item in question and that the Editor be permitted to file an additional explanation in the form of an affidavit over not only the caption but also the contents thereof and place before Court a soft copy of the recordings of the press meet

on 28th October 2015 relating to the said news item. The affidavit and the vakalath are taken on record. Registry to print the name of learned counsel for the Editor. It is brought to the notice of the Court that yet another news paper by name ‘Hosadigantha’ carried a similar news item on 29.10.2015. A reading of the said contents of the news item, the caption and the contents are similar to the one in question. For the reasons stated in the

order dated 30th October 2015, suffice it to direct the Editor of ‘Hosadigantha’ in-person to

: 23 :

file an explanation in the form of an affidavit as to why action in accordance with law should not be initiated against him, and also be present in Court.

The Registrar General is directed to issue notice to the Editor of ‘Hosadigantha’, Hubballi Edition, enclosing a copy of the order dated 30.10.2015 as well as this order fixing the date of hearing as 17th November 2015. There is non-compliance with the order dated 30.10.2015 by the President of 7th respondent in not filing explanation. Learned counsel submits that he takes notice for the President of 7th respondent and would file an explanation, if extended time.

As a last chance, time is extended upto 16th November 2015, failing which, it will be taken that he has no explanation to offer. Re-list on 17.11.2015.”

3. In compliance with the said order, on the basis of submissions made by Sri D.N.Nanjunda Reddy, learned Senior Counsel, the following order was made on 17.11.2015:

“Sri D.N.Nanjunda Reddy, learned senior Counsel for the Editor-in-Chief of ‘Kannada

Prabha’ files two memos, to the first of which is enclosed, a pen drive containing soft copy of recording of press meet held on 28.10.2015 by the President of 7th respondent and a compact disk also recording the same, while to the second is enclosed a draft of the apology to be published in six editions of Kannada Prabha. Learned senior Counsel files an additional affidavit of Sugata Srinivasaraju, Editor-in-Chief, interalia, tendering an unconditional apology and deep regret over the action in carrying the publication in question in the

newspaper, having now realized that a much more sensitive, conscientious and responsible

: 24 :

approach ought to have been adopted in carrying out the publication in question. The explanation in the form of an affidavit of the President of 7th respondent contains

statements which, according to the learned counsel, are perceptions of the deponent based on documents, on instruction of the deponent and the views voiced in the press conference was the subjective analysis based upon objective documents available with the deponent. The two letters Annexures-B and B1 though not addressed to the deponent is sought to be utilized in support of the explanation of the deponent. To a question of the Court to the learned

counsel as to from whose custody copies of these letters were secured, learned counsel on instruction submits that persons in the office of the Principal Secretary Revenue Department, who had access to the documents handed over the copies of the letters. It is needless to state that when the deponent is legally bound by oath to state the truth by making a declaration upon a subject, having made the statement that Annexures-B and B1 are unauthenticated copies, the deponent is

bound to answer as to from whose custody the documents were secured. The video recording of the press meet, was played on the Laptop and displayed on a large screen in the court hall on the direction of the Court and having witnessed the same, the deponent of the affidavit states that though it is not the full version of the press meet nevertheless, what is recorded therein is admitted. Notice issued to the editor of ‘Hosadigantha’,

Hubli edition, though served as indicated in the postal track system, is conspicuously absent.

: 25 :

Registry to ascertain the name of the editor of ‘Hosadigantha’ Daily and issue notice through court and the process server from the District Court Dharwad/Hubli, fixing the date of hearing

as 26th November, 2015 and specifiying that his absence on the next date, proceedings in accordance with law would be initiated including securing his presence in a manner known to law. The President of 7th respondent to file affidavit indicating the names address and designation of the persons who handed over copies of Annexures-B and B1 to the deponent, by the next date of hearing, after service of copies on the learned counsel for the State.

Re-list on 26.11.2015.”

4. Today, Sri P.Karunakar, learned counsel appears for Mr.Shiva Subramanya, Group Editor of Hosadigantha, Kannada Daily and Mr.Sudheendra Alur, Sub-Editor of Hosadigantha News Paper and files two separate affidavits of the aforesaid persons along with the vakalath. The same are taken on record.

5. The affidavit of Mr.Sugata S.Raju, the

Editor-in-Chief, reads thus : “I, Sugata Srinivasaraju, S/o late Sri. Srinivasaraju, aged 43 years, residing at No.21(Old No.8) ‘Savitri’ Prof. Srinivasaraju Road, Kodandaramapura, Malleshwaram, Bengaluru 560 003, do hereby solemnly affirm and state as follows: 1. I submit that I am the Editor-in-Chief of

“Kannada Prabha” Kannada Daily, having its office at No.36, Crescent Road, Bengaluru-560 001.

2. I most humbly submit that I am swearing to

this affidavit pursuant to notice dated

: 26 :

31.10.2015 issued by this Hon’ble Court in W.P. No.35011-12/2015(KLR-RES).

3. I submit that ‘Kannada Prabha’ is one of the mainstream kannada newspaper

conducting its affairs within the four corners of law having utmost respect for the judiciary and absolute faith in the justice delivery system.

4. I submit that on 28.10.2015 the president of the Respondent No.7 Organisation had called for a press conference in Hubli-Dharwad. In the said press conference the President of Respondent No.7 had made various allegations against the Hon’ble Judge by his name. Although several allegations were made by naming the

Hon’ble Judge, what was covered and published was only the fact of holding the press conference by the President of Respondent No.7 and the fact that certain serious allegations were made by the President of Respondent No.7. Except reporting the fact of the President of Respondent No.7 having held a press conference on 28.10.2015 and that certain serious allegations were made by him, the publication does not contain any comment or opinion of the news paper.

5. I most respectfully submit that ‘Kannada Prabha’ and all of its officers and I personally would never conduct ourselves in a manner so as to defame or lower the image of the judiciary or interfere with the administration of justice. The publication was never intended to undermine or tend to undermine people’s confidence in administration of justice and justice delivery system or to make scurrilous or defamatory remarks in any manner whatsoever. As already stated earlier the fact of having held

the press conference by the President of Respondent No.7 was covered with utmost

: 27 :

care, caution, responsibility and restraint by Kannada Prabha.

6. I submit that I have the highest respect for judiciary and would never conduct our

activities in any manner prejudicial to the judiciary or the justice delivery system. I with utmost respect submit that if the instant publication has in any manner lowered the authority of this Hon’ble Court which was never intended to, I hereby most respectfully tender my unconditional apology to this Hon’ble Court and pray that all further proceedings be dropped.

7. I most humbly pray that this Hon’ble Court be pleased to accept the unconditional apology being tendered by me and drop

further proceedings, in the interest of justice.

8. I say that the statements made above are true to the best of my knowledge, information and belief.”

6. The additional affidavit of the said editor,

filed on 17.11.2015 reads thus : “I, Sugata Srinivasaraju, S/o late Sri. Srinivasaraju, aged 43 years, residing at No.21(Old No.8) ‘Savitri’ Prof. Srinivasaraju Road, Kodandaramapura, Malleshwaram,

Bengaluru 560 003, do hereby solemnly affirm and state as follows: 1. I submit that I am the Editor-in-Chief of

‘Kannada Prabha’ Kannada Daily, I am swearing to this affidavit pursuant to order dated 05.11.2015 passed by this Hon’ble Court in the above matter.

2. I respectfully submit that ‘Kannada Prabha’ is a broadsheet mainstream newspaper started in the year 1967 with one edition in Bengaluru. ‘Kannada Prabha’ is a law abiding kannada news daily and has always

conducted its affairs in a manner that would ensure and promote the confidence of the

: 28 :

people in the constitutional mechanism provided for administration of justice. Kannada Prabha has always been and always is committed to upholding the high moral

values upon which the functioning of our judicial system rests.

3. I submit that respondent No.7 being a non profit organization established in 1983, having taken up several issues relation to protection of environment and human rights and being involved in several social welfare programmes and people oriented policies, the press conference held by it earlier were covered by ‘Kannada Prabha’, Having covered the earlier press conference held by respondent No.7, the fact of a press

conference having been held by the President of Respondent No.7 in Hubli-Dharwad on 28.10.2015 and that certain statements were made by the President of Respondent No.7 in the said press conference was reported in the news item in question. The news item carries true information about the happening of the event namely the press conference held on 28.10.2015 and as to what transpired in the press conference. The publication does not and was never meant to support or endorse the views of the President of Respondent No.7

or the organization itself. The news item in question carries only the statements made by the President of Respondent No.7 in the press conference which has been recorded. The news item does not contain any opinion, views or comments of the newspaper.

4. I most respectfully submit that the caption of the news item was never intended to malign the dignity of the judges or this Hon’ble Court. The caption of the news item was recorded solely in the context in which the press conference was held by Respondent

No.7, as is the usual practice followed by Kannada Prabha and was never intended to

: 29 :

lower the authority of this Hon’ble Court or bring this Hon’ble Court or the Hon’ble Judges to disrepute or disrespect. The font in which the caption is recorded is the one

regularly used by Kannada Prabha while reporting all other news items. However having now realized that a much more sensitive, conscientious and responsible approach ought to have been adopted in reporting the news item in question, than what is reasonably and normally adopted, I tender my unconditional apology and deep regret for my actions in carrying the news item in question in the news paper. I further submit that ‘Kannada Prabha’ has always stood for the integrity of the judiciary and

upholding the high moral values upon which the functioning of our judicial system rests. I undertake to publish an unconditional apology in ‘Kannada Prabha’ Kannada daily, in all its six editions published across the state of Karnataka, in the same page as the news item in question was published; and on any date as may be directed by this Hon’ble Court. A draft of the ‘apology’ which ‘Kannada Prabha’ undertakes to publish is also made available by way of a separate memo, for the kind perusal and approval of

this Hon’ble Court. A soft copy of the recording of the press conference held by the President of Respondent No.7 on 28.10.2015, relating to the news item in question, recorded in a pen drive is produced separately along with a memo.

5. I most humbly pray that this Hon’ble Court be pleased to accept the unconditionally apology and drop further proceedings in the interest of justice.

6. I say that the statements made above are true to the best of my knowledge information

and belief.”

: 30 :

17. The draft publication enclosed to the memo dated 16.11.2015 is extracted thus:

£ÁåAiÀĦÃoÀPÉÌ CªÀªÀiÁ£À ªÀiÁqÀĪÀ GzÉÝñÀ E®è L¸ïQæÃA PÀA¥À¤ vÉgÉAiÀÄĪÀÅzÁV PÉLJr© ¬ÄazÀ ¨sÀÆ«Ä ¥ÀqÉzÀÄ SÁ ÀV PÀA¥À¤AiÉÆAzÀPÉÌ ªÀiÁgÁl ªÀiÁrzÀ ¥ÀæPÀgÀtzÀ°è “¥Éæ¹Öãeï ºÀUÀgÀtzÀ°è £ÁåAiÀiÁªÀÄÆwð ±Á«ÄîĔ, I§ ²Ã¶ðPÉ Cr ÀªÀiÁd ¥ÀjªÀvÀð£Á ¸ÀªÀÄÄzÁAiÀÄzÀ CzsÀåPÀëgÀÄ ªÀiÁrzÀ DgÉÆÃ¥ÀªÀ£ÀÄß ¥ÀæPÀn¹zÀÝPÁÌV (¢£ÁAPÀ 29.10.2015) PÀ£ÀßqÀ¥Àæ sÀ ¢£À¥ÀwæPÉ PÀëªÉÄAiÀiÁa¸ÀÄvÀÛzÉ. F «ZÁgÀzÀ°è ºÉÊPÉÆÃmïð £ÁåAiÀiÁªÀÄÆwðUÀ¼À£ÀÄß CªÀªÀiÁ¤ ÀĪÀ, CªÀgÀ WÀ£ÀvÉ, ªÀZÀð¹ìUÉ PÀÄAzÀÄ vÀgÀĪÀ AiÀiÁªÀÅzÉà zÀÄgÀÄzÉÝñÀ E®è JazÀÄ ¥ÀwæPÉ ¸ÀàµÀÖ¥Àr ÀÄvÀÛzÉ. C£ÀªÀzsÁ£À¢AzÀ F ÀÄ¢Ý ¥ÀwæPÉAiÀÄ°è £ÀĸÀĽzÀÄÝ, £ÁåAiÀiÁAUÀzÀ §UÉÎ ¥ÀwæPÉUÉ C¥ÁgÀ UëgÀªÀ«zÉ JazÀÄ F ÀazÀ sÀðzÀ°è w½¸À§AiÀĸÀÄvÀÛzÉ. ºÁUÉ £ÉÆÃrzÀgÉ, DgÉÆÃ¥À ªÀiÁrgÀĪÀªÀgÀÄ ¤¢üðµÀÖ £ÁåAiÀiÁªÀÄÆwðUÀ¼À ºÉ ÀgÀ£ÀÄß ¥ÀwæPÁUÉÆö×AiÀÄ°è ºÉýzÀÝgÀÆ, ¥ÀwæPÉ «ªÉÃZÀ£É §¼À¹ CªÀgÀ ºÉ ÀgÀ£ÀÄß ¥ÀæPÀn¹®è. eÉÆvÉUÉ EzÀÄ ‘UÀA©üÃgÀ DgÉÆÃ¥À’ I§ÄzÀ£ÀÄß G¥À²Ã¶ðPÀÉAiÀÄ°è ºÉüÀ ÁVzÉ. DzÀgÉ Erà ÀÄ¢ÝaiÀÄ£ÀÄß E£ÀßµÀÄÖ PÀÆ®APÀµÀªÁV ¥Àj²Ã°¹ ¥ÀæPÀn¸À§ºÀÄzÁVvÀÄÛ I§ ªÁzÀªÀ£ÀÄß ¥ÀwæPÉ M¥ÀÄàvÀÛzÉ. W½AiÀÄzÉà DzÀ F vÀ¥Àà£ÀÄß ¥ÀwæPÉ w¢ÝPÉÆArzÉ. E£ÀÄß ªÀÄÄAzÉ EaxÀ PÀtÛ¥ÀÄà £ÀqÉAiÀÄzÀAvÉ PÀæªÀĪÀ»¸ÀÄvÀÛzÉ JazÀÄ £ÁåAiÀĦÃoÀPÉÌ ¥ÀwæPÉ D±Áé¸À£É ¤ÃqÀÄvÀÛzÉ.

¸ÀA¥ÁzÀPÀgÀÄ.

17. The affidavit of Mr.Shivasubramanya reads thus:

: 31 :

“I, Mr. Shivasubrahmanya, Aged about 49 years, S/o Late K.S. Narayana, R/at No.225, 14th A Cross, R.T.Nagar, Bangalore-32 do hereby solemnly affirm and state on oaths as here

under: 1. I state that I am the Group Editor of the

Hosadiganta Kannada Daily. I am authorized to swear to this affidavit. Hence I am swearing to this affidavit.

2. I state that Hosadiganta is registered daily newspaper having circulation throughout Karnataka. However, it has four editions separately printed from Bangalore. Mangalore, Hubli and Shimoga. Hosadiganta is a well-known newspaper and known for its unbiased, fair and value based publication

since more than three decades. 3. I state that out of four editions, the Hubli

edition dated 29.10.2015 published a newspaper report reporting the press conference held by Sri. S.R. Hiremath. The said news report was published without any tampering of the statements made by him in the press conference.

4. I state that the reporters attended the said press report after noting down the statements made in the press conference sent the report to the local office at Hubli and local alone

carried the said news report is not our version at all.

5. I state that however, I respectfully submit that we have the highest respect for the judiciary and never carried such kind of statements in the past. I say that the report carried due to inadventure. However, as an editor I unconditionally apologize for having carried the said news.

6. I have highest respect for the judiciary. Unintentional publication of the news by the newspaper may kindly be pardoned by

accepting my unconditional apology in this regard.

: 32 :

7. I respectfully submit that henceforth we will take all precautions before publishing any such kind of reports in future.

Wherefore, it is humbly prayed that this

Hon’ble Court be pleased to accept this apologizes and drop the contempt proceedings against this Hosadiganta Kannada Daily newspaper and its editors, printers and the publishers in the in the interest of justice and equity.”

9. The affidavit of Mr.Sudheendra Alur reads thus :

I Mr. Sudheendra Alur, Chief Sub- Editor of Hosadigantha newspaper Hubli Edition, S/o

Raghavendra Alur, Aged about 32 years, R/A LIG 391, Navanagara, 12th cross, Hubli now at Bangalore do hereby solemnly affirm and state on oath as here under: 1. I state that I am the chief Sub Editor of the Hosadigantha Kannada Daily published at Hubli. I am authorized to swear to this affidavit. Hence I am swearing to this affidavit 2. I state that Hosadigantha is a registered daily newspaper having circulation throughout Karnataka. However, it has four editions separately printed from Bangalore. Mangalore,

Hubli and Shimoga. Hosadigantha is a well- known newspaper and known for its unbiased fair and value based publication since more than three decades. 3. I state that out of four editions, the Hubli edition dated 29.10.2015 published a newspaper report reporting the press conference held by Sri. S.R.Hiremath. The said news report was published without any tampering of the statements made by him in the press conference, the news was collected by the reporter in a press conference called by

S.R.Hiremath at 4 pm. I could not communicate the same to our chief editor or

: 33 :

group of editors because of the delay and the news items was published without the approval of the editors. 4. I state that the reporters attended the said

press report after noting down the statements made in the press conference sent the report to the local office at Hubli and local alone carried the said news report is not our version at all. 5. I state that I had no intention to disrepute the judiciary. I apologies for publishing the news item when the matter was sub-judicial. 6. I state that however, I respectfully submit that we have the highest respect for the judiciary and never carried such kind of statements in the past. I say that the report carried due to inadventure. However, as an

editor I unconditionally apologize for having carried the said news. 7. I have highest respect for the judiciary. Unintentional publication of the news by the newspaper may kindly be pardoned by accepting my unconditional apology in this regard. 8. I respectfully submit that henceforth we will take all precautions before publishing any such kind of reports in future. Wherefore, it is humbly prayed that this

Honble Court be pleased to accept this apologizes and drop the contempt proceedings against this Hosadiganta Kannada Daily newspaper and its editors, printers and the publishers in the interest of justice and equity.”

10. Learned counsel Sri P.Karunakar files a memo stating that the Chief Editor and Sub-Editor undertake to publish in the four editions of news paper Hosadigantha, an apology in the like terms as made out in the

draft of Kannada Prabha.

: 34 :

11. Journalism is meant to serve the people with news, views, comments, information on matters of public interest in a fair, accurate, unbiased and decent manner and language.

Although, media, it is said, does not remain satisfied as the Fourth Estate, nevertheless, assumes importance in society and governance as recorded by Justice G.N.Ray, Chairman of the Press Council of India as Preface to the norms of Journalistic Conduct 2010 Edition of the Press Council of India.

12. Since journalists enjoy privilege, media is mandated to follow certain ethics in collecting and disseminating the information viz., ensuring authenticity of the news, use of

restrained and socially acceptable language for ensuring objectivity and fairness in reporting and keeping in mind its cascading effect on the society and on the individuals and institutions concerned. Regard being had to the aforesaid responsibilities, norms of Journalistic conduct was published. Relevant portions of which are extracted thus: Principles and Ethics The fundamental objective of journalism is to serve the people with news, views, comments

and information on matters of public interest in a fair, accurate, unbiased, sober and decent manner. To this end, the Press is expected to conduct itself in keeping with certain norms of professionalism, universally recognized. The norms enunciated below and other specific guidelines appended thereafter, when applied with due discernment and adaptation to the varying circumstance of each case, will help the journalist to self-regulate his or her conduct:

1. Accuracy and Fairness:

: 35 :

The Press shall eschew publication of inaccurate, baseless, graceless, misleading or distorted material. All sides of the core issue or subject should be reported. Unjustified

rumours and surmises should not be set forth as facts. It is incumbent for newspapers to play a positive role in response to rumours affecting the credibility of financial institutions having public interface. While it is the duty of the press to expose the wrong doings that come to their notice, such reports need to be backed by irrefutable facts and evidence.

17. Pre-Publication Verification:

On receipt of a report or article of public interest and benefit containing imputations or comments against a citizen, the editor should check with due care and attention its factual accuracy apart from other authentic sources – with the person or the organization concerned to elicit his/her or its version, comments or reaction and publish the same alongside with due correction in the report where necessary. In the event of lack or absence of response, a footnote to that effect may be appended to the report.

Publication of news such as those pertaining to cancellation of examinations or withdrawal of candidates from election should be avoided without proper verification and cross checking. A document, which forms a bases of a news report, should be preserved at least for six months. 12. a) Caution in criticizing judicial acts Excepting where the court sits ‘in-camera’ or directs otherwise, it is open to a newspaper to

report pending judicial proceedings, in a fair,

: 36 :

accurate and reasonable manner. But it shall not publish anything- -which, in its direct and immediate effect, creates a substantial risk of obstructing,

impeding or prejudicing seriously the due administration of justice; or - is in the nature of a running commentary or debate, or records the paper’s own findings conjectures, reflection or comments on issues, sub judice and which may amount to abrogation to the newspaper the functions of the court; or -regarding the personal character of the accused standing trial on a charge of committing a crime. Newspaper shall not as a matter of caution,

publish or comment on evidence collected as a result of investigative journalism, when, after the accused is arrested and charged, the court becomes seized of the case: Nor should they reveal, comment upon or evaluate a confession allegedly made by the accused. While newspapers may, in the public interest, make reasonable criticism of a judicial act or the judgment of a court for public good; they shall not cast ‘scurrilous aspersions’ on, or ‘impute improper motives’, or ‘personal bias to the judge. Nor shall they ‘scandalise the court’

or the ‘judiciary’ as a whole, or make personal allegations of ‘lack of ability or integrity against a judge. Newspaper shall, as a matter of caution, avoid unfair and unwarranted criticism which, by innuendo, ‘attributes to a judge extraneous consideration for performing an act in due course of his/her judicial functions, even if such criticism does not strictly amount to criminal Contempt of Court. b) Reporting News pertaining to Court

Proceedings

: 37 :

Before publishing a news item about court proceedings, it will be appropriate for the correspondent and editor to ascertain its genuineness and, correctness and authenticity

from the records so that the concerned person can be held guilty and accountable for furnishing incorrect facts or wrong information about the court proceedings.” 13. The Division Bench of Calcutta High Court in its decision dated 7th July 1988,1

Smt.Archana Guha Vs.Ranjit Guha Neogi @ Runu Guha Neogi, exercising contempt jurisdiction observed thus: “12. Article 215 of our Constitution lays down that every High Court shall be a Court of

Record and shall have all the powers of such a Court including the power to punish for contempt of itself. This right of inflicting punishment for contempt of Court was conferred upon the High Court for the purpose of ensuring the rule of law and orderly administration of justice. The purpose of the contempt jurisdiction is to uphold the majesty and dignity of the Courts of Law. The image of such a majesty in the minds of the people cannot be allowed to be distorted. The respect and the authority commended by the Courts of

law is the greatest guarantee for protection of Constitutional rights.: Between the three great organs of the State, the Legislature, the Executive and the Judiciary, the duty of the judiciary is to uphold the Constitutional rights of ordinary citizens and afford protection to citizens from executive tyranny. The judicial process is the only method of enforcing the rights of the citizens under the Constitution. The entire democratic fabric of the society will breakdown if the respect for the judiciary is undermined.

1 (1989) 2 CHN 252

: 38 :

13. The right of the Press to Jcandaliz the judiciary must be exercised in such a manner that peoples faith in the judiciary is not

shaken. The Press has a right to Jcandaliz a judgment but in Jcandalizin the judgment, the Press must summarise the judgment fairly and accurately and is also entitled to Jcandaliz the conclusion reached in the judgment in temperate language. 14. But if a judgment is condemned unread or by distorting the facts found in that judgment or twisting the law enunciated in the judgment then the Press has not rendered any service to the people, on the contrary a great dis-service

to the society. The judiciary will be judged by the people by what the judiciary does, but if the Press gives distorted version of Court’s proceedings and invites people to judge the judiciary on the basis of such distorted versions of judicial proceedings, in such a case the Press cannot take shelter under Article 19(1)(a) of the Constitution which guarantees freedom of speech and expression. In exercise of the right of freedom of speech and expression, nobody can be allowed to interfere with the due course of justice or to lower prestige or the authority of

the Court. 15. Cases may happen in which the Judge may be mistaken, but the law has provided a remedy for correction of such mistakes. The party injured is entitled to pursue every method by which such mistakes may be corrected. The Press if it thinks that a judgment is mistaken has a right to Jcandaliz the judgment and point out the supposed mistakes but in a temperate language. But what the Press cannot do is to eluminate the proceedings of a Court of Law

which has a result of weakening the administration of justice and in consequence to

: 39 :

undermine the very foundation of the Constitution itself: because nothing is more important to the proper functioning of the Constitution than a strong and effective

judiciary which is respected and obeyed by the people and also the administration. In the case of Prospective Publication (P) Ltd. v. State of Maharastra, reported in 1970 (2) SC Journals p. 35 it was observed by the Supreme Court that the publication of a disparaging statement will be an injury to the public if it tends to create an apprehension in the minds of the people regarding the integrity, ability or fairness of the judge, or to deter actual and prospective litigants from placing complete reliance upon the Court’s administration of justice or if it is

likely to cause JcandalizingJ in the mind of the Judge himself in the discharge of his judicial duties.

At paragraph 23 which was observed thus:

23. Corrective power of the Press has a universal application. Society in order to prosper will have to have a free Press, but as noted above, free Press does not imply without limitations and without restraint. The Press has a responsibility towards the society at large and

that responsibility can only be discharged in the event the Press comes out with a fair and proper comment and attitude.

14. The High Court of Madras in Madras High

Court Practising Advocates’ Association Vs. Registrar General, High Court of Madras and others,2 2012 (3) CTC 225 extracted the observations of the Apex Court in Rajendra Sail

2 2012 (3) CTC 225

: 40 :

v. Madhya Pradesh High Court Bar Association,3 and at para 32 observed thus: “32. The reach of media, in present times of 24

hours channels, is to almost every nook and corner of the world. Further, large number of people believe as correct which appears in media, print or electronic. It is also necessary to always bear in mind that the judiciary is the last resort of redressal for resolution of disputes between State and subject, and high and low. The confidence of people in the institute of judiciary is necessary to be preserved at any cost. That is its main asset. Loss of confidence in institution of judiciary would be end of Rule of law. Therefore, any act which has such tendency deserves to be

firmly curbed. For rule of law and orderly society, a free responsible press and independent judiciary are both indispensable. Both have to be, therefore, protected.

37. The power and reach of the media, both print as well as electronic is tremendous. It has to be exercised in the interest of the public good. A free press is one of very important pillar on which the foundation of Rule of Law and democracy rests. At the same time, it is also necessary that freedom must be exercised with utmost

responsibility. It must not be abused. It should not be treated as a licence to denigrate other institutions. Sensationalism is not unknown. Any attempt to make news out of nothing just for the sake of sensationalism has to be deprecated. When there is temptation to sensationalize particularly at the expense of those institutions or persons who from the nature of the office cannot reply, such temptation has to be resisted and if not it would be the task of the law to give clear guidance as to what is and what is not permitted.

3 AIR 2005 SC 2473,

: 41 :

15. Having regard to the aforesaid observations

of the Apex Court, it is needless to reiterate that rule of law is the foundation of democratic society

in which judiciary is the guardian of rule of law. The confidence, which the people and the citizenry repose in Courts of justice, cannot be allowed to be tarnished or wiped out by contemptuous behaviour of any person. If the judiciary in order to perform its duties and functions effectively and true to the spirit with which they are sacredly entrusted, the dignity and authority of the courts have to be respected and protected at all costs. It is therefore said that the foundation of the judiciary is the trust and the confidence of the people in its ability to deliver

fearless and impartial justice. When the foundation itself is shaken by acts which tend to create disaffection and disrespect for the authority of the court by creating distrust in its working, the edifice of the judicial system gets eroded. Those who indulge in acts, which tend to undermine the authority of law and bring it in disrepute and disrespect by scandalizing it, are to be dealt in right measure and hence courts are entrusted with extraordinary power of punishing for contempt of court. It must be noticed that when court exercises its power it does not do so

to vindicate the dignity, honour of the individual Judge who is personally attacked or scandalized but to uphold the majesty of law and of the administration of justice.

16. Freedom of Press is not absolute, unlimited

and unfettered at all times and in all circumstances as giving an unrestricted freedom of speech and expression which would amount to an uncontrolled licence. Being wholly free from reasonable restraints would lead to disorder and anarchy. Freedom is not to be misunderstood as

to be a press free to disregard its duties and responsibilities. In the conscience of the

: 42 :

journalist must be ingrained the element of responsibility since in an organized society, the rights of the press are recognized with its duties and responsibilities towards the society. Public

order, decency, morality and such other things must be safeguarded. Wrong doing by the press disentitle it to the protective cover of press freedom.

17. In Re Harijai Singh v. In Re Vijay

Kumar,4 the Supreme Court observed that presentation of news must be truthful, objective and comprehensive without any false and distorted expression.

18. Lord Atkinson in Andrew Paul Terence

Ambrad v. Attorney General of Trinidad and Tobago5, observed thus: “No wrong is committed by any member of the public who exercised the ordinary right of criticism in good faith in private or public. The public act done in the seat of justice. The path of criticism is a public way, the wrong headed are permitted to err therein, provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice are genuinely exercising a right of criticism and not acting in

malice or attempting to impart the administration of justice, they are immune. Justice is not a cloistered virtue; she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.”

19. Lord Justice Donovan in Attorney General v. Butterworth6, after making reference to Req. v. Odham’s Press Ltd. ex parte, A.G., 1957 (1) QB 73 said: “whether or

4 AIR 1996 (6) SCC 466 5AIR 1936 PC 141,

6 1963 (1) QB 696

: 43 :

not there was an intention to interfere with the administration of justice is relevant to penalty and not to quit.” This makes it clear that intention to interfere with the proper

administration of justice is an essential ingredient of the offence of contempt of court and it is enough if the action complained of is inherently likely so to interfere.

20. In Morris v. Crown Office7, Lord Denning M.R. said: that the course of justice must not be deflected or interfered with. Those who do it strike at the very foundations of our society. In the same case, Lord Justice Solomon spoke: “The sole purpose of proceedings for contempt is to give our courts the power effectively to

protect the rights of the public by ensuring that the administration of justice shall not be obstructed or prevented.”

21. Frank Further, J. in Offutt v. U.S.8, , expressed his views as follows : “It is a mode of vindicating the majesty of law, in its active manifestation against obstruction and outrage.”

22. In Jennison v. Baker9, it is stated :

“The law should not be seen to sit by limply,

while those who defy it go free, and those who seek its protection lose hope.” 23. Chinappa Reddy J., speaking for the Bench in Advocate General Bihar v. M.P.Khair Industries10, citing the above two decisions observed thus: “.....It may be necessary to punish as a contempt a course of conduct which abuses and makes a mockery of the judicial process

7 1970 (1) All.E.R., 1079, page 1081

8 1954 (348) U.S.11

9 1972 (1) ALL.E.R. 997, at page 1006

10 1980 (3) SCC 3111,

: 44 :

and which thus extends its pernicious influence beyond the parties to the action and affects the interest of the public in the administration of justice. The public have an

interest, an abiding and a real interest, and vital stake in the effective and orderly administration of justice, because unless justice is so administered, there is the peril of all rights and liberties perishing. The Court has the duty of protecting the interest of the public in the due administration of justice and so it is contempt of Court not in order to protect the dignity of the Court against Contempt of Court may seem to suggest but to protect and to vindicate the right of the public and the administration of justice shall not be

prevented, prejudiced, obstructed or interfered with.”

24. Krishna Iyer, J, in his separate judgment in re. S.Mulgaokar, 1978 (3) SCC 339, while

giving broad guidelines in taking punitive action in the matter of contempt of Court stated thus: “.....If the Court considers the attack on the judge or judges scurrilous, offensive, intimidatory or malicious beyond condonable limits, the strong arm of the law must, in the name of public interest and public justice, strike a blow on him who challenges the supremacy of the rule of law by fouling its source and stream”

25. In Brahma Prakash Sharma and others v. The State of Uttar Pradesh11, the Apex Court after making reference to various decisions as well as of the Privy Council, observed thus: “It will be an injury to the public if it tends to create an apprehension in the minds of the

11

AIR 1954 SC 10,

: 45 :

people regarding the integrity, ability or fairness of the Judge or to deter actual and prospective litigants from placing complete reliance upon the Court’s administration of

justice, or if it is likely to cause embarrassment in the mind of the Judge himself in the discharge of his judicial duties. It is well established that it is not necessary to prove affirmative that there has been an actual interference with the administration of justice by reason of such defamatory statement; it is enough if it is likely or tends in any way to interfere with the proper administration of law.”

26. In Surya Prakash Khatri & Another v.

Madhu Trehan and others12, the Delhi High Court observed thus: “18. It is often said that to err is human but to forgive is noble and to forget is divine. Majesty of Law continues to hold its head high notwithstanding such scurrilous attacks made by persons who feel the law Courts will absorb anything and every thing, including attacks on their honesty, integrity and impartiality. But it has to be borne in mind that such divinity and magnanimity is not its weakness but its strength. It generally ignores irresponsible

statements which are anything but legitimate criticism. It is to be noted that what is permissible is legitimate criticism and not illegitimate insinuation. No Court can look with equanimity on a publicity which may have tendency to interfere with the administration of justice. Power of press is almost like nuclear power, it can create and it can destroy. When it is aimed at the judiciary, it finds a soft target because it has neither the power of the purse nor the sword, which other wings of democracy possess. Pen is mightier than sword, it is said.

12

2001 (59) DRJ 298 (FB)

: 46 :

Pen used by the press should not be dipped in poison, it should be used for creativity not destruction. Judiciary should not be like flies in the hands of wanton boys. Judge bashing is

not and cannot be a substitute for constructive criticism. While a responsible press is a boon to the society, an irresponsible one is a menace. It needs no reiteration that on judiciary millions pin their hopes, for protecting their life, liberty, property and the like. Judges do not have any easy job. They repeatedly do what rest of us (the people) seek to avoid, make decisions, said David Pannick in his book “Judges”. Judges are mere mortals, but they are asked to perform a function which is truly divine.”

27. Nelson Mandela spent 27 years in jail In South Africa. Referring to Caesar’s speech, Mandela said : Cowards die many times before their death. Valiant never taste of death but once”. History is replete with examples where judges have shown courage and boldness. This is part of judicial fabric and culture.

28. Needless to state that judges must think positive, act positive, do positive while

negativity is counter productive. Judiciary as an institution is Jcandalizi as a productive organ. An example of positivity of mind, that occurs to me is one of Alfred Nobel who created a trust, instituted Noble Prize for the richest contributions in the fields of Literature, Physics, Chemistry, Economics, Medicine, Peace. Our judges too nurture the same. Without the role and contribution of judges, it is not possible to translate the meaning of justice, and ensure that each action whether of an individual or the Government is in

accordance with the rule of law, in addition to ensuring Parliament and State Legislature

: 47 :

remain within the parameters of the Constitution. As noticed supra, judicial decision-making is important. Judges to do what others avoid. They interact with lawyers

everyday, ask questions to witnesses in courts since lawyer must know what is in the mind of the Judge. Professor Griffith in his book says, “Judges are a product of a class and have the characteristics of that class….The judges define the public interest, inevitably from the view point of their own class”. It is elsewhere said that being a compassionate judge is an indispensable judicial ethic.

29. Learned Senior Counsel Sri D.N.Nanjunda Reddy, representing the Editor-in-Chief of

Kannada Prabha news paper is candid in his submission that an error of judgment occurred while writing the caption and contents in the paper publication hence the Editor having shown remorse for his conduct has tendered an unconditional apology with an undertaking to publish that apology in a conspicuous place in the news paper within two days. So also, Sri P.Karunakar, learned counsel representing the Editor and Sub-Editor of ‘Hosadigantha’ newspaper adopts the submission of the Learned Senior counsel while expressing

similar remorse of both the Editor and Sub-Editor and also submits on instructions, that a publication would be made in four editions of the newspaper tendering an unconditional apology over the publication, in the like terms as would be done by Kannada Prabha, if extended two days time.

30. In the light of the submissions made by learned counsel and regard being had to the statements in the affidavit supra, tendering unconditional apology, it is appropriate to

accept the same on the condition that the deponents would not in future bring upon

: 48 :

themselves such a situation, while conduct the business of the press in terms of the norms of Journalist Conduct 2010 Edition of the Pres Council of India.

31. Further proceedings for contempt of court against the Editors of two paper publications, stand dropped. Compliance with the undertaking and to file the newspaper carrying out the apology by 30.11.2015.

Re-list on 10.12.2015.”

8. On 26.11.2015, one S.R.Hiremath, son of late

Rachayya A Hiremath, claiming to be the founder

President of 7th respondent filed an affidavit stating that

statement of objections of 7th respondent along with

affidavit dated 22.9.2015, written submissions of 7th

respondent dated 15.10.2015, memo of recusal dated

5.11.2015 and affidavit dated 16.11.2015 may be

considered as part and parcel of the affidavit enclosing

two letters Annexures-B and B1 explaining the reasons

as to why the names of persons who had handed over

the Photostat copies of Annexures-B and B1 could not be

made available claiming the benefit of The Whistleblower

Protection Act, 2011 as also extracted the Proceedings of

: 49 :

the Meeting of the board of Directors of the 7th

respondent held on 19.11.2015.

9. The grievance as noticed in the memo for recusal

is found at paragraphs 8, 9, 11 and 14 which reads

thus:

“8. It is most respectfully submitted that when the above matter came up for hearing on 09.09.2015, Hon’ble Justice Ram Mohan Reddy, the presiding judge, in the open Court held that, “the Respondent No.7 is not

a necessary party in the case and there is no reason for it for impleading in the matter. If it is found that Respondent No.7 has unwarrantedly impleaded in the matter then this Court would impose exorbitant costs.” The above opinion expressed by the Hon’ble Judge was of great significance and which in turn would affect the merit of the above matter. Might also create serious doubt in the minds of public at large as in the mind of the Respondent -7 that if there was any prejudice. As a matter of fact the Respondent

No.7 attended the meeting conveyed by the Deputy Commissioner, Bengaluru Urban and it advanced its valuable assistance before Principal Secretary for Revenue by impleading itself. The Respondent No.7 has not impleaded in the above Writ Petition but the Petitioner herein has arrayed the SPS as Respondent No.7. Moreover the question of impleading of SPS before Principal Secretary for Revenue is not the subject matter nor the matter in issue to be determined by this Hon’ble Court. It is also submitted that the

Petitioner herein has not claimed any prayer against the Respondent No.7 and rather

: 50 :

preferred to include him as the one of the Respondents. Respondent -7 is a proper party and would render valuable assistance to this Hon’ble Court in imparting Equity

and Justice. 9. It is most respectfully submitted that on 22.09.2015 when the matter was heard by this Hon’ble Court, when the Counsel for Respondent No.7 attempted to make submissions, Hon’ble Justice Ram Mohan Reddy with great anguish filled with lot of sarcasm and cynicism mockingly asked what kind of Samudaya Parivartana (what is the reforms that the Respondent No.7 as done) what is its existence and so on. This again

created apprehension in the mind of Respondent No.7 and thought whether there has been any prejudice or so. Even the well-meaning Public and media expressed the anguish to the Respondent No.7. 11. It is most respectfully submitted the Respondent No.7 genuinely with great respect to this Hon’ble Court apprehend and feel that, if Hon’ble Justice Ram Mohan Reddy is prejudiced and biased against the Respondent No.7 for reasons not known to

the Respondent No.7. It also fears that this would effect the merits of the above case. 14. It is submitted that due to some unpleasant happenings and developments before this Hon’ble Court on various occasions or hearing the Respondent was constrained and unwillingly opt for Memo for Recusal with the sole intention to uphold the Honour and Dignity of the Great Institution i.e., judiciary. Even this application is interest of the institution and also in interest

of Public at large. As the various hearing of this Hon’ble Court have been reported in the

: 51 :

Media with much space and wordings, the faith of Public would be at stake on this institution due to the reasons mentioned above. The Public and media might think

that, if the Judgment is in favour of the Respondents, then public might recall the above reasons, in case if it is in favour of petitioner then even the above mentioned reasons would come to the limelight.”

10. In Annexure-B, learned AAG addressed a letter

to the Special Deputy Commissioner, the Principal

Secretary to Government, Revenue Department on

6.10.2015 stating in his own words as to what

transpired in the court on 6.10.2015 and eliciting

instructions as to whether the Government can examine

other possibilities instead of canceling the sale deed by

which property was conveyed for a consideration in

favour of Joy Ice Creams. Annexure-B1, a copy of letter

dated 14th October, 2015 of the Under Secretary to the

Government, Revenue Department is addressed to the

Addl. Advocate General stating that the State

Government on examining the point of issue

communicated in the letter noticed that the High Court

in Writ Petition No.55974-55976/2013, passed orders,

: 52 :

based upon which, proceedings were initiated leading to

the order impugned in the writ petitions.

11. As noticed supra, the thrust of the allegation of

person, claiming to be the founder member of

respondent No.7 is that statements made in the Court by

the Presiding Judge created a serious doubt in the mind

of the “public at large” and that “even well meaning public

and media expressed anguish to respondent No.,7” and

therefore, apprehends and feels that the Presiding Judge

is prejudiced and biased against respondent No.7 which

would affect the merits of the case.

12. It may be not be out of place to mention that

one of the principles of natural justice recognized by

traditional Indian law in the matter of rule against bias

or interest, is “nemo debet esse judex in propria causa”.

In other words, no man can be a judge in his own cause

and justice should not only be done but manifestly be

seen to be done. Needless to state that Judge should be

impartial and neutral and must be free from bias; to be

indifferent to the parties to the controversy; cannot act

: 53 :

as Judge of a cause in which he has some interest either

pecuniary or otherwise as it affords the strongest proof

against neutrality; must be in a position to act judicially

and to decide the matter objectively, his mental

equipoise must always remain firm and undetected;

should not allow personal prejudice to go into the

: 54 :

decision making. The object being not merely that the

scales be held even; it is also that may not appear to be

inclined.

13. Several jurisdictions around the world have

formulated appropriate tests to decide whether non

pecuniary bias would vitiate judicial or quasi judicial

decision, to state, a few, that is, “real danger”, “real

likelihood” and “reasonable suspicion”.

14. It is well settled law that to apply “real

likelihood”, the test is whether the facts as assessed by

the Court, give rise to a real likelihood of bias, while test

for reasonable suspicion is that justice must be seen to

be done and that no person should adjudicate in any

way if it might reasonably be thought that he ought not

to act because of some personal interest. This is the sum

and substance as to how the test must be applied.

15. It is useful to extract the observations of the

Apex Court in a few reported opinions viz., :

: 55 :

i) In R.Viswanathan vs. Rukn-ul-Mulk Syed

Abdul Wajid13, it was observed thus:

“If every remark of a Judge made from the Bench is to be construed as indicating prejudice, I am afraid most Judges will fail to pass the exacting test. In the course of arguments, Judges express opinions, tentatively formed, sometimes even strongly; but that does not always mean that the case had been prejudged. An argument in court can never be effective if the Judges do not sometimes point out what appears to be the underlying fallacy in the apparent plausibility thereof, and any lawyer or litigant, who forms an apprehension on that score, cannot be said to be

reasonably doing so. It has frequently been noticed that the objection of a Judge breaks down on a closer examination, and often enough, some Judges acknowledge publicly that they were mistaken. Of course, if the Judge unreasonably obstructs the flow of an argument or does not allow it to be raised, it may be said that there has been no fair hearing.”

The aforesaid observations was on a consideration

of the allegations in the affidavit that Balakrishna, J.

made hostile remarks against the case of sons of

Ramalingam while hearing the appeal with Kandaswami

Pillai, J.

The Apex Court further observed that the learned

Judge Balakrishna J., seem to have formed opinions as

the arguments proceeded and if he had kept them to

13 AIR 1963 SC 1

: 56 :

himself there would have been no compliant, but it is

because they were expressed, that there is one.

The learned Judges of the Apex court held that

they were not satisfied with the allegations made by sons

of Ramalingam and that all the facts were overlaid with

exaggeration and perjury for that it had rendered

violation of principles of natural justice.

(ii) In Chetak Constructions Limited vs. OM

Prakash14, the Apex Court at paragraph 16 observed

thus:

16. Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officers with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and Rule of Law would receive

a set back. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot, be allowed to “terrorize” or “intimidate” judges with a view to “secure” orders which they want. This is basic and fundamental and no Jcandaliz system of administration of justice can permit it. We certainly, cannot approve of any attempt on the part of any litigant to go “forum shopping”. A litigant cannot be permitted `choice’ of the `forum’ and every attempt at “forum shopping” must be crushed with a heavy hand.

14

(1998) 4 SCC 677

: 57 :

17. At the same time, it is of utmost importance to remember that Judges must act as impartial referees and decide cases objectively,

uninfluenced by any personal bias or prejudice. A Judge should not allow his judicial position to be compromised at any cost. This is essential for maintaining the integrity of the institution and public confidence in it. The credibility of this institution rests on the fairness and impartiality of the Judges at all levels. It is the principle of highest importance, for the proper administration of justice, that judicial powers must be exercised impartially and within the bounds of law. Public confidence in the judiciary rests on legitimacy of judicial process. Sources of

legitimacy are in the impersonal application by the Judge of Jcandalizi objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. Judges must always ensure that they do not allow the credibility of the institution to be eroded. We must always remember that justice must not only be done but it must also be seen to be done.”

iii) In R.K.Anand vs. Registrar, Delhi High

Court15, at paragraphs 263 and 264 it is observed thus:

“263. In the order the concerned judge further observed:

“The path of recusal is very often a

convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under

15

(2009) 8 SCC 106

: 58 :

Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or

favour affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office.”

The above passage, in our view,

correctly sums up what should be the Court’s response in the face of a request for recusal

made with the intent to intimidate the court or to get better of an “inconvenient” judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice.

264. We are constrained to pause here

for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply

throw a stone on a judge (who is quite defenceless in such matters!) and later on cite the gratuitous attack as a ground to ask the judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due

course of justice leading to penal consequences.”

: 59 :

iv) In P.D.Dinakaran (1) vs. Judges Inquiry

Committee and Others16, the Apex court having

considered a catena of reported opinions on the aforesaid

legal aspect extract the portions relevant for that

purpose at paragraphs 58, 62, 64, 66, 68, 69 and 71,

which reads thus:

“58. The Constitutional Court of South Africa has, in President of the Republic of South Africa v. South African Rugby Football Union

1999 (4) I 147 (CC) while holding that the onus of establishing that there was a ground for recusal of the members of the Court was on the applicant, made the following significant observations:

“............The question is whether a reasonable, objective and informed person would on the correct facts reasonably apprehend that the judge has not or will not bring an impartial mind to bear on the adjudication of the

case, that is a mind open to persuasion by the evidence and the submissions of counsel. The reasonableness of the apprehension must be assessed in the light of the oath of office taken by the judges to administer justice without fear or favour; and their ability to carry out that oath by reason of their training and experience. It must be assumed that they can disabuse their minds of any irrelevant personal beliefs or predispositions. They must take into

16

(2011) 8 SCC 380

: 60 :

account the fact that they have a duty to sit in any case in which they are not obliged to recuse themselves. At the same time, it must never be forgotten

that an impartial judge is a fundamental prerequisite for a fair trial and a judicial officer should not hesitate to recuse herself or himself if there are reasonable grounds on the part of a litigant for apprehending that the judicial officer, for whatever reasons, was not or will not be impartial.”

62. In India, the Courts have, by and large, applied the “real likelihood test” for deciding whether a particular decision of the judicial or

quasi judicial body is vitiated due to bias. In Manak Lal v. Dr. Prem Chand Singhvi (supra), AIR 1957 SC 425 it was observed (AIR P.429, para4) :

“5…….Every member of a tribunal that [sits to] try issues in judicial or quasi-judicial proceedings must be able to act judicially; and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially, objectively and

without any bias. In such cases the test is not whether in fact a bias has affected the judgment; the test always is and must be whether a litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it is often said that justice must not only be done but must also appear to be done.”

64. In S. Parthasarthi v. State of A.P. (1974) 3 SCC 459, Mathew, J. applied the `real likelihood

: 61 :

test’ and restored the decree passed by the trial Court which invalidated compulsory retirement of the appellant by way of punishment. In SCC paragraph 16 of the judgment, Mathew, J.

observed: (SCC p.465)

“16...........We think that the reviewing authority must make a determination on the basis of the whole evidence before it, whether a reasonable man would in the circumstances infer that there is real likelihood of bias. The Court must look at the impression which other people have. This follows from the principle that justice must not only be done but seen to be done. If

right minded persons would think that there is real likelihood of bias on the part of an inquiring officer, he must not conduct the enquiry; nevertheless, there must be a real likelihood of bias. Surmise or conjecture would not be enough. There must exist circumstances from which reasonable men would think it probable or likely that the inquiring officer will be prejudiced against the delinquent. The Court will not inquire whether he was

really prejudiced. If a reasonable man would think on the basis of the existing circumstances that he is likely to be prejudiced, that is sufficient to quash the decision......”

66. In Ashok Kumar Yadav v. State of Haryana (1985) 4 SCC 417, the Court while reiterating that the judgment in A.K. Kraipak’s case represents an important landmark in the development of administrative law and has contributed in a large measure to the

strengthening of the rule of law, made a significant departure in cases involving selection

: 62 :

by the Public Service Commissions. All this is evident from SCC paragraph 18 of the judgment, which is extracted below:

“18. We must straightaway point out that A.K. Kraipak case is a landmark in the development of administrative law and it has contributed in a large measure to the strengthening of the rule of law in this country. We would not like to whittle down in the slightest measure the vital principle laid down in this decision which has nourished the roots of the rule of law and injected justice and fair play into legality. There can be no doubt that if a Selection

Committee is constituted for the purpose of selecting candidates on merits and one of the members of the Selection Committee is closely related to a candidate appearing for the selection, it would not be enough for such member merely to withdraw from participation in the interview of the candidate related to him but he must withdraw altogether from the entire selection process and ask the authorities to nominate another person

in his place on the Selection Committee, because otherwise all the selections made would be vitiated on account of reasonable likelihood of bias affecting the process of selection. But the situation here is a little different because the selection of candidates to the Haryana Civil Service (Executive) and Allied Services is being made not by any Selection Committee constituted for that purpose but it is being done by the Haryana Public Service Commission

which is a Commission set up under Article 316 of the Constitution. It is a

: 63 :

Commission which consists of a Chairman and a specified number of members and is a constitutional authority. We do not think that the

principle which requires that a member of a Selection Committee whose close relative is appearing for selection should decline to become a member of the Selection Committee or withdraw from it

leaving it to the appointing authority to nominate another person in his place, need be applied in case of a constitutional authority like the Public Service Commission, whether Central or State. If a member of a Public Service Commission were to withdraw altogether from the selection process on the ground that a close relative of his is appearing for selection, no other person save a member can be substituted in his place. And it may sometimes happen that no other member is available to take the place of such member and the functioning of the Public Service Commission may be affected. When two or more members of a Public Service Commission are holding a viva voce examination, they are functioning not as individuals but as the Public Service Commission. Of course, we must make it clear that when a close relative of a member of a Public Service Commission is appearing

for interview, such member must withdraw from participation in the interview of that candidate and must not take part in any discussion in regard to the merits of that candidate and even the marks or credits given to that candidate should not be disclosed to him.”

(emphasis supplied)

: 64 :

68. The Court then proceeded to consider whether respondent 4 would have been biased against the appellant and observed: (Ranjit

Thakur case, SCC pp.617-18, paras 15-17)

“15………..The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and is whether respondent 4 was likely to be disposed to decide the matter only in a particular way. 16. It is the essence of a judgment that it is made after due observance of the

judicial process; that the court or tribunal passing it observes, at least the minimal requirements of natural justice; is composed of impartial persons acting fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality is a nullity and the trial “coram non-judice”. 17. As to the tests of the likelihood of bias what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. The proper approach for the Judge is not to look at his own mind and ask himself, however, honestly, “Am I

biased?”; but to look at the mind of the party before him.”

69. In Secretary to Government, Transport Department v. Munuswamy Mudaliar 1988 (Supp.) SCC 651, this Court considered the question whether a party to the arbitration agreement could seek change of an agreed arbitrator on the ground that being an employee

: 65 :

of the State Government, the arbitrator will not be able to decide the dispute without bias. While reversing the judgment of the High Court which had confirmed the order of learned Judge, City

Civil Court directing appointment of another person as an arbitrator, this Court observed:

“12. Reasonable apprehension of bias in the mind of a reasonable man can be a ground for removal of the arbitrator. A predisposition to decide for or against one party, without proper regard to the true merits of the dispute is bias. There must be reasonable apprehension of that predisposition. The reasonable apprehension must be based on cogent materials. See the observations of Mustill and Boyd, Commercial Arbitration 1982 Edn., p. 214. Halsbury’s Laws of England, 4th Edn., Vol. 2, para 551, p. 282 describe that the test for bias is

whether a reasonable intelligent man, fully apprised of all the circumstances, would feel a serious apprehension of bias.”

(emphasis supplied)

71. The principles which emerge from the aforesaid decisions are that no man can be a Judge in his own cause and justice should not only be done, but manifestly be seen to be done. Scales should not only be held even but they must not be seen to be inclined. A person having

interest in the subject matter of cause is precluded from acting as a Judge. To disqualify a person from adjudicating on the ground of interest in the subject matter of lis, the test of real likelihood of the bias is to be applied. In other words, one has to enquire as to whether there is real danger of bias on the part of the person against whom such apprehension is expressed in the sense that he might favour or

: 66 :

disfavour a party. In each case, the Court has to consider whether a fair minded and informed person, having considered all the facts would reasonably apprehend that the Judge would not

act impartially. To put it differently, the test would be whether a reasonably intelligent man fully apprised of all the facts would have a serious apprehension of bias. In cases of non-pecuniary bias, the “real likelihood” test has been preferred over the “reasonable suspicion” test and the Courts have consistently held that in deciding the question of bias one has to take into consideration human probabilities and ordinary course of human conduct. We may add that real likelihood of bias should appear not only from the materials ascertained by the

complaining party, but also from such other facts which it could have readily ascertained and easily verified by making reasonable inquiries.”

(v) In Subrata Roy Sahara vs. Union of India

and Others17, extracted the observations in Jaswant

Singh v. Virender Singh & Others18. At paragraph 136,

which reads thus:

“136. At this juncture we may refer to a decision of this Court which has a bearing on the subject in hand. Reference is being made

to the observations made by this Court, in Jaswant Singh v. Virender Singh, 1995 Supp. (1) SCC 384:-

32. Before parting with this judgment, there is however, one matter which has caused us considerable concern and we

17

(2014) 8 SCC 470 18

1995 Supp.(1) SCC 384

: 67 :

wish to advert to it. After the recount had been ordered by the learned Single Judge in the High Court and the Deputy Registrar had carried out the

inspection of the ballot papers of the specified booths, the appellant filed an application in the High Court under Section 151 CPC seeking stay of the further arguments to enable the appellant to move the Supreme Court. In the said application the appellant referred to certain ‘observations’ made by the learned Judge during the course of arguments and also referred to the manner in which the two packets containing ballot papers which had

been objected to by both the parties and had been kept for scrutiny of the learned Single Judge, were handled by the learned Judge. The appellant went on to say that “by doing this the Hon’ble Court was pleased to make these ballot papers suspect and doubtful and these cannot be considered for any decision on them regarding their validity or otherwise as these remained in unsealed condition for unascertainable time without the petitioner or his

Counsel being present there”. The learned Judge by his order dated 13.5.1993 recorded the following proceedings:

Counsel for the petitioner has not

appeared and the petitioner himself has made a request that he wants to move the Hon’ble Supreme Court for transfer of the Election Petition from this Court. In view of this statement, the petition is being adjourned. The petitioner wants

to place as application for transfer on record. He may file it in the Registry, if

: 68 :

so advised. During the course of arguments yesterday, two sealed envelopes relating to polling booth Nos. 28 and 31 had been opened in the

presence of the parties and their Counsel at the time when the report of the Commissioner who carried out test checking was being considered. These open envelopes had remained in my custody in my Almirah under lock and key. Since the case is now being adjourned, these open envelopes be resealed and the same be handed over to the Additional Registrar (Judicial) alongwith other sealed envelopes.

33. Thereafter, the appellant as already noticed, filed a transfer petition in this Court which was dismissed on 30.8.1993. The transfer petition like the application (supra) cast aspersions on the learned Judge in the discharge of his judicial functions and had the tendency to Jcandalizi the Court. It was an attempt to brow beat the learned Judge of the High Court and cause interference in the conduct of a fair trial. Not only are the aspersions

derogatory, scandalous and uncalled for but they also tend to bring the authority and administration of law into disrespect. The contents of the application seeking stay as also of the transfer petition, bring the Court into disrepute and are an affront to the majesty of law and offend the dignity of the Court. The appellant is an Advocate and it is painful that by filing the application and the petition as a party in person, couched in an objectionable

language, he permitted himself the liberty of indulging in an action, which

: 69 :

ill behoves him and does little credit to the noble profession to which he belongs. An advocate has no wider protection than a layman when he

commits an act which amounts to contempt of court. It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favorable orders. Only because a lawyer appears as a party in person, he does not get a license thereby to commit contempt of the Court by intimidating

the Judges or Jcandalizing the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary. These safeguards are not for the protection of any Judge individually but are essential for maintaining the dignity and decorum of the courts and for upholding the majesty of law. Judges and courts are not unduly sensitive or touchy to fair and reasonable criticism of their

judgments. Fair comments, even if, out-spoken, but made without any malice or attempting to impair the administration of justice and made in good faith, in proper language, do not attract any punishment for contempt of court. However, when from the criticism a deliberate, motivated and calculated attempt is discernible to bring down the image of judiciary in the estimation of the public or to impair the administration of justice or tend to

bring the administration of justice into disrepute the courts must bestir

: 70 :

themselves to uphold their dignity and the majesty of law. The appellant, has, undoubtedly committed contempt of the Court by the use of the objectionable

and intemperate language. No system of justice can tolerate such unbridled licence on the part of a person, be he a lawyer, to permit himself the liberty of Jcandalizing a Court by casting unwarranted, uncalled for and unjustified aspersions on the integrity, ability, impartiality or fairness of a Judge in the discharge of his judicial functions as it amounts to an interference with the due course of administration of justice.

(emphasis supplied)” The Hon’ble Judges of the Apex Court applying the

aforesaid observations, recorded their findings at

paragraph 137 thus:

“137. The observations recorded in the above judgment in Jaswant Singh case are fully applicable, to the mannerism and demeanour of the petitioner Mr. Subrata Roy Sahara and

some of the learned Senior Counsel. We would have declined to recuse from the matter, even if the other side, had been a private party. For, our oath of office requires us to discharge our obligations, without fear or favour. We therefore also commend to all Courts, to similarly repulse all baseless and unfounded insinuations, unless of course, they should not be hearing a particular matter, for reasons of their direct or indirect involvement. The benchmark, that justice must not only be done but should also

appear to be done, has to be preserved at all costs.”

: 71 :

16. Having regard to the allegations/disguised

aspersions as aired by the learned counsel for 7th

respondent, the Presiding Judge, having indicated to

learned Addl. Advocate General, to examine as what

would be the effect of Section 31 of the Specific Relief

Act, in the light of execution of sale deed conveying the

immovable property in question, absolutely, for a

valuable consideration, in favour of Joy Ice Creams,

cannot by any stretch of imagination, violate the maxim

“justice must not only be done but must also appears to

be done”. The disguised aspersions are

merit-less and the so-called anguish sought to be

expressed by well meaning public and media, of which

there is no material whatsoever, would not come in the

way of impartial and meaningful adjudication by the

Presiding Judge over the dispute before it, is at best

what could be said over the aspersions or apprehensions

of the deponent of the affidavit and the signatory of the

memo and nothing else.

: 72 :

17. The writ petition had been heard sufficiently,

whence there was interaction with the learned counsel

and therefore there is no need of the Presiding Judge to

recuse from hearing. The memo dated 5.11.2015 is

rejected.

By order dated 6.10.2015, the petition was directed

to be listed on 14.10.2015 for further hearing. Re-list for

further hearing on 26.4.2016.

If Sri Basavaraj, learned counsel for the 7th

respondent files an application to the Registrar for issue

of copy of the compact disk made available by Editor of

Kannada Prabha, Registry to make available a copy of

the same to the learned counsel.

Order on I.A.1/2016

This application by the petitioners to delete 7th

respondent from the array of parties, is unnecessary

having regard to the fact that 7th respondent party to

proceeding before the Deputy commissioner resulted in

the order impugned in the writ petitions and therefore, is

a necessary party.

ORDER ON I.A.2/2015

: 73 :

In the light of the order dated 18th November 2015

in R.P.534/2015 & 570-571/2015 in Writ Petition

Nos.55974-55976/2013 of the Division Bench permitting

the 6th respondent to be transposed as petitioner No.3 in

this writ petition. I.A.2/2015 is allowed.

Petitioner to amend the cause title.

Sd/- Judge