INDIAN BAR ASSOCIATION

(THE ADVOCATES’ ASSOCIATION OF INDIA)

Office: 9/15, Bansilal Building, 3rdFloor, HomiModi Street, Fort, Mumbai – 23
Tel: +91-22-62371750, Cell: +91-7045408191,
Email:[email protected]

Date:26.07.2019

CASE NO.BEFORE HON‟BLE PRESIDENT OF INDIA:- PRSEC/E/2019/14516

To,
1. Hon‟ble President of India
2. Hon‟ble Chief Justice of India
3. Hon‟ble Chief Justice of Bombay High Court

SUBJECT:-
1. Direction for initiating disciplinary proceedings
against Justice Akil Kureshi for bringing
disrepute to the institution of Judiciary in
conjunction with Adv. Yatin Oza in loathly
deriding Hon‟ble Supreme Court Collegium
members as impotent, in order to pressurize
them to seek his elevation as Chief Justice of MP
High Court.
2. Direction for action under Contempt of Courts
Act as per law laid down in Re: C. S. Karnan
(2017) 7 SCC 1 against Justice Akil Kureshi &
Justice S.J.Kathawalla for their willful disregard
and defiance of Hon‟ble Supreme Court rulings.
3. Action under section 218,219 166, 220 r/w
120(B) & 34 etc. of IPC against Justice Akil
Kureshi.
4. Direction to Justice Akil Kureshi & Justice
Shahrukh Kathawala to resign forthwith in view
of law and guidelines of K. Veeraswami Vs.
Union of India (UOI) 1991 (3) SCC 655.
5. Direction for forming a committee as per
provisions of „In House Procedure‟ and as per
law laid down by Full Bench in Union of
India Vs. K. K. Dhawan (1993) 2 SCC 56
1
 (Full Bench) to enquire serious charges against
Justice Akil Kureshi & Justice S.J.Kathawala for
their incompetence, lack of basic knowledge of
law, passing casual orders, passing orders
against the law laid down by Hon‟ble Supreme
Court and by their own High Court.

Hon‟ble Sir,
1. At the outset it is submitted in all earnest, this complaint is not
at the behest of Bhartiya Janta Party or any Government
agency but an utmost attempt by a right thinking lawyers body,
determined to uphold the rule of law and to salvage the majesty
and dignity of judiciary – unfortunately which Justice Akil Kureshi
either himself or through his front-men and proxies are out to
ruin it, in throwing all sorts of tantrums of not being elevated as
Chief Justice of Gujarat/Madhya Pradesh and side-to-side
through his proxy Adv. Yatin Oza entrusted themselves of
bringing disrepute to the Supreme Court Collegium (graver than
the conduct Justice C.S. Karnan) and the Government. It is in
this backdrop we‟re constrained to make this complaint, lest the
TUKDE TUKDE gang bulldozes themselves in securing coveted
position in judiciary; as a pre-empt it is urged that a thorough
enquiry preferably either by NIA or CBI is the pressing
requirement to unravel the design and aim of these anti-
nationals and their TUKDE TUKDE Gang cohorts, who are out to
destabilize judiciary– issues pertinent to be put on record:

A. Justice Akil Kureshi apart from his manifest

prejudice against BJP is gifted with exemplary
shallow knowledge of law, and in charging Sh.
Amit Shah of frivolous offences with all respect to
Justice Kureshi even an entry-level judicial officer
would have desisted of exhibiting such extravagant
amateurishness, some further-more incidences are
narrated herein, which be considered in appropriately
dealing with the indiscipline of Justice Akil Kureshi.

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B. In securing his elevation as CJ of MP High Court, Justice
Akil Kureshi thru his proxy Adv. Yatin Oza wrote a letter
to the Hon. Chief Justice of India, published on 22 nd
April, 2019 in Bar & Bench, (Exh-A); the contents of the
letter self-testifies the abhorrent extent of canvassing
Justice Akil Kureshi indulged to elevate himself – an
unheard, unprecedented lobbying exercise which
he undertook to influence the collegium. It is our
humble submission that anointing to the position of a
High Court Judge and morefully that of Chief Justice calls
for a certain maturity of outlook and equanimity which
Justice Akil Kureshi is magnanimously bereft of.

C. It is in the public domain that in the matter of elevating

Justice Akil Kureshi as Chief Justice of a High Court thru
all possible nefarious means of nasty proxy-management
of Advocate Yatin Oza aspersions were casted on Hon‟ble
SC collegium members abusing them of impotency
who have knelt themselves before the government,
the said speech by Adv. Yatin Oza, published in YouTube
on 1st Nov, 2018, which to a naïve would also convince
Justice Akil Kureshi as a frantic mentally unstable person
and with Adv Yatin Oza who too has his own hidden
agenda have formed an unholy nexus to stoop to any
notoriety in degrading judiciary, thus in maintaining the
dignity of judiciary it would be appropriate to
instantly discharge Justice Akil Kureshi from
performing any judicial functions, lest the
unfortunate litigants are at the mercy of a
psychopath.

D. The legal fraternity is aghast of the proxy-management

of Justice Akil Kureshi of having filed a Writ Petition thru
Adv. Yatin Oza to elevate himself as a Chief-Justice of MP
High Court. In this context, we came to understand, Ex-
Chief Justice of Bombay High Court Sh. Mohit Shah
opined – „that apart from the aggrieved none else can

3
 file a writ petition‟ and there is also a binding precedent
of the Supreme Court – that in service matters a third
party is precluded to file writ petition. Some other
unpleasant-horrible details concerning Justice Akil
Kureshi was also shared however by way of decency the
same isn‟t stated herein – as an organization we do have
many differences with Sh. Mohit Shah due to his on-
office corrupt conduct some of which was highlighted by
Sr. Advocate Sh. Dushyant Dave a matter in public
domain, but so far as his view point of this particular
issue, we agree ourselves with Sh. Mohit Shah.

E. It is contextual to mention that the legendry Senior Adv.

Fali Nariman, highly respected of his dexterous webbing
of arguments in defending the mass murderer in Bhopal
Gas Tragedy „Warren Anderson‟. Sh. Fali Nariman thru
his colossus stature must have earned a fortune and
could convince the CASE AS A TRAGEDY topping it up
playing the victim card of innocence of unawareness.
Pertinently Sh. Fali Nariman is also an accused
against whom prosecution is sought under charges
of sedition for instigating people to raise slogans
against Indian Army and demoralize them copy of
complaint by Sh. Rashid Khan vide Exh-B.

F. Advocating the cause of Justice Akil Kureshi by Sh. Fali

Nariman in elevating him as a Chief Justice is as natural
as leaves coming to trees; since venerable Sh. Fali
Nariman the cynosure of Lutyens media and the Khan
Market brigade is known for his exemplary crusade in
defending the anti-nationals and seditionists who is now
engaged to represent the writ in elevating Justice Akil
Kureshi as Chief Justice of MP High Court. It intrigues
who is funding the entire legal battle on behalf of
Justice Akil Kureshi, the hidden agenda of them is
but to destabilize the edifice of judiciary and show
the government of the day in poor light.

4
G. Justice Akil Kureshi‟ publicly brags to the Advocates that
he has least regard for advocate‟s oral arguments, and is
pre-decided, basis written pleadings. As a lawyers
organization of responsibility it‟s high time to remind
Justice Akil Kureshi of the pronouncement by Hon‟ble
Supreme Court in the case of Automatic Tyre
Manufacturers Association V/s Designated
Authority & Ors., (2011) 2 Supreme Court Cases
258 - the Apex Court therein observed that the written
arguments are no substitutes for oral hearing. Giving a
personal hearing before a final order is passed is
essential for ensuring compliance with basic principle of
Audi Alteram Partem. Personal hearing enables the
authority to observe demeanor of the parties and clear
doubts during the course of hearing. It is high time to
remind Justice Akil Kureshi that he ought not to arrogate
himself in contempt of Hon‟ble Supreme Court and other
High Courts. The importance of oral arguments by
advocates is emphasized time and again even in case
where written arguments are filed.

“ Hon‟ble Supreme Court in the case of in Re:

C.S.Karnan ( 2017) 7 SCC 1 it is ruled as under ;
“A) High Court Judge disobeying Supreme Court
direction and abusing process of court sentenced
to six months imprisonment.
B) Even if petition is filed by a common man
alleging contempt committed by a High Court
Judge then Supreme Court is bound to examine
these allegation. ”

H. Ignorance of law or disregard to the rule of law by

Justice Akil Kureshi is corroborated in his recent cavalier
casual one liner judgment in a Contempt Petition wherein
without framing any charges sought presence of the
respondent to terrorise him to submission (in the

5
 contempt matter of Chandrashekhar Acharya Family
Court Appeal No.3 of 2016), sadly in another family court
appeal in the matter of Joy Anthony, when Advocate
Partho Sarkar aged around 55 years tried to explain the
correct procedure of the rule of law in the matter of
Contempt Jurisdiction – Justice Akil Kureshi yelled at him
to shut himself up, „arrogating that he (justice Akil
Kureshi) knows the law best‟ we shudder to think the
destruction to the edifice of judiciary Justice Akil Kureshi
is potent to unleash, such a counter - productive person
who is not even fit to inhabit the position of a Magistrate
occupying the position of High Court judge ought to be
instantly ridden off, lest a lingering threat to the dignity
of judiciary persists.

INSTANCES OF ILLEGALITIES AND CONCOMITANT

OFFENCES BY JUSTICE AKIL KURESHI ALONG WITH
JUSTICE SHAHRUKH KATHAWALA
2. That, in Contempt Petition No.230 of 2019 filed by one Eureka
who is gainfully employed by an American Company, having a
libertine night-out life style, alleged non-payment of maintenance
by her erstwhile husband Joy Anthony who is laid off of his job
for the past one year, due to recession in Dubai. Justices Akil
Kureshi and Shahrukh Kathawala contemptuously disregarding
the various Supreme Court Judgments in the matter of contempt
jurisdiction summoned Joy Anthony an out of job fitter, and
against the laid out position of law started threatening him of
illegal restraint, and froze his bank account - it is high time to
remind Justices Akil Kureshi and Shahrukh Kathawala that
exercise of contempt jurisdiction is a criminal proceeding and
without framing of appropriate charges and issuance of notice in
proper form, a respondent can‟t be summoned in exercise of
contempt jurisdiction, much less on his appearance before the
court summarily his bank account can‟t be frozen – the
manifest illegal order by Justice Kureshi is either due to
his superficial knowledge of law or his frustration, both
are dangerous for dispensing equity - which got unleashed

6
 on a hapless victim, who though not per the requirement of the
law was to attend the court yet presented himself before the
court in maintaining the dignity of the court, the oxymoron of the
order by Justices Akil Kureshi and Shahrukh Kathawala is
evident, where in an earlier instance – the illegality of
summoning a person without following appropriate procedure
and in consonance of Bombay High Court Rules, Justice Shahrukh
Kathawala being pointed out of his illegality, thru suo-motto
speaking to the minutes recalled his own order – it intrigues as to
why he repeated the illegality sitting along with Justice Akil
Kureshi; Needless to mention indiscriminate use of
contempt jurisdiction – is a sure corroboration of the
hollowness of the judge‟s knowledge or character or both.
We humbly remind the Hon‟ble Justices, exercise of
contempt jurisdiction is not a provision of his ego-
massage but a means to render even handed justice.

3. The mental imbalance and the pompous attitude of Justices Akil

Kureshi and Shahrukh Kathawala has gone to an extent of their
acting not as judges but as extortionists. The matter relates to a
family court appeal of Dr. Santosh Shetty and his estranged
spouse Amita Shetty who through loads of falsities secured a
whooping maintenance – subject matter of an ongoing
adjudication proceedings; strangely though without even a
petition on record of Justices Akil Kureshi and Shahrukh
Kathawala, Dr. Santosh Shetty was summoned of immediate
presence under the threat of arrest, freezing bank accounts,
revoking his passport etc. The lawyer of Dr. Santosh Shetty was
pleading to Justices Akil Kureshi and Shahrukh Kathawala that
Dr. Santosh Shetty is in the midst of an operation and that will
be difficult for him to leave; Justices Kureshi and Kathawala
repeated their threat of arrest and other coercive measures and
thundered that Dr. Shetty has to reach with his cheque book,
come whatsoever it may. The moment Dr. Santosh Shetty
leaving aside the operation reached the court, simply he was
commanded to fork out a cheque of Rs. THIRTY ONE LACS which
couldn‟t have been made payable to Amita Shetty as per court‟s

7
 own order, but the Hon‟ble Justices Kureshi & Kathawala
commanded to make the payment to Amita Shetty flouting the
conditions imposed, it is unknown as to why Justices Akil Kureshi
and Shahrukh Kathawala are oppressed or indebted to Amita
Shetty, that out of turn she was bestowed of the grand
indulgence; on knowing the incident the legal fraternity are shell-
shocked that whether Justices Akil Kureshi and Shahrukh
Kathawala have become the New GANG-LORDS OF MUMBAI.

4. In the back-drop of injudicious conduct by Justices Akil Kureshi

and Shahrukh Kathawala which is against the law laid down by
Division Bench of this Hon‟ble Court in Bombay Bar
Association Vs. Nilesh Ojha 2017 SCC OnLine Bom 4553,
contempt proceeding commences only when Court passes order
taking cognizance of the alleged contempt and notice in “FORM-
I” in that regard is served upon the Respondent.

Before that the Respondent is not allowed to participate in the

proceeding.
It is ruled by Hon‟ble Bombay High Court in Bar Association
case (Supra) as under;
―The first Respondent appearing in person has raised
various objections.
…..
He relied upon the decision of the Apex Court in the
case of Indirect Tax Practitioners'
Association v. R.K. Jain4(2010) 8 SCC 281 in
support of his submission that even the contemnors
are required to be heard before issuing a contempt
notice. He conceded that though the said proposition
of law is not specifically laid down in the said decision,
the Apex Court gave hearing to the proposed
contemnors before issuing notice and ultimately
dismissed the petition.
4. We have considered the said objections. There is
no law which requires this Court to give an
opportunity of being heard to the proposed
contemnor before a notice of contempt is issued.
8
 No such right is available to the Contemnors. ―
5. Hon‟ble Bombay High Court in the case of Tushar Galani Vs.
Jagdeesh 2001 ALL MR (Cri.) 46 it is ruled as under ;
Criminal P.C.(1973),Ss.202,204- Issue of
process –Magistrate cannot issue notice to
proposed accused as to why process be not
issued against him for the alleged offences.
The learned Magistrate could not have evolved new
procedure which is not contemplated by law. The
accused has no locus standi in the matter before
issuing process against him and therefore ,he is not
entitled to be heard before process is issued against
him. The learned Magistrate has to consider the
question of issuing process purely from the point of
view of the complainant without reference to any
defence that the accused may have. At the stage of
issuing , the Magistrate cannot enter into a detailed
discussion on the merits or demerits of the case.
6. In Manharibhai Muljibhai Kakadia and Anr Vs. Shaileshbhai
Mohanbhai Patel and Ors. 2013 Cri.L.J. 144 it is ruled as under;
“(A) Criminal P.C. (2 of
1974), S.200, S.203, S.202, 204- the persons
who are alleged in the complaint to have
committed crime have, no right to participate in
the proceedings nor they are entitled to any
hearing of any sort whatsoever by the
Magistrate until the consideration of the matter
by the Magistrate for issuance of process. The
judgments of the High Courts to the contrary are
overruled.
Judge Cannot Consider As To What Would Be The
Defence Of The Accused Before Issuing Process
Against The Accused.
Accused have no locus before issuance of process.
However if order is in favor of accused and it is
challenged then Court can hear accused.”
7. That, Hon‟ble Supreme Court in Sundarjas Kanyalal Bhathija Vs.

9
The Collector AIR 1990 SC 261 it is ruled as under;
―Constitution of India, Art.141- PRECEDENTS -
Judges are bound by precedents and procedure -
They could use their discretion only when there is no
declared principle to be found, no rule and no
authority - where a single judge or a Division Bench
does not agree with the decision of a Bench of co-
ordinate jurisdiction, the matter shall be referred to a
larger Bench. It is a subversion of judicial process not
to follow this procedure - it is the duty of judges of
superior courts and tribunals to make the law more
predictable. The question of law directly arising in the
case should not be dealt with apologetic approaches.
The law must be made more effective as a guide to
behaviour. It must be determined with reasons which
carry convictions within the Courts, profession and
public. Otherwise, the lawyers would be in a
predicament and would not know how to advise their
clients. Sub-ordinate courts would find themselves in
an embarrassing position to choose between the
conflicting opinions. The general public would be in
dilemma to obey or not to obey such law and it
ultimately falls into disrepute- One must remember
that pursuit of the law, however glamorous it is, has
its own limitation on the Bench.”
8. That as per R. S Sherawat Vs. Rajeev Malhotra and Ors.
2018 SCC OnLine SC 1347 the proceedings under Contempt
are quasi Criminal in nature. The Respondent have all protections
available to the accused.
In the Contempt of Court‟s Act and in the rules made by this
Hon‟ble Court to regulate the proceedings under Contempt
there is no provision which gives jurisdiction to this Hon‟ble
Court to ask the Respondent to remain present on the date
fixed.

The Respondent can be directed to remain present only after

passing order of taking cognizance and the Respondent should

10
 be given time to file his reply within at least 14 days from the
date of service of the notice upon the Respondent.
Rule 10 of Bombay High Court Contempt Ruled reads as under;
―Rule 10. The person charged may file his reply by
way of an Affidavit or Affidavits within 14 days from
the service of the Notice or within such time as the
Court may fix.
But Justice Akhi Kureshi & Justice S.J.Kathawala on 28th
June, 2019 passed the order against the provisions of Contempt
of Court‟s Act & rules and directed the Respondent i.e. Joy
Anthony to remain present; similar indiscreet and injudicious
order was passed in the case of Chandrashekhar Acharya in a
Contempt Petition arising out of Family Court Appeal No. 3 of
2016 wherein Chandrashekhar Acharya was summoned for
attendance without following the due process of law. The above
said orders are not only illegal but have violated the fundamental
rights of the Respondents. The Hon‟ble Authorities are earnestly
prayed that the custodians of fundamental rights have become
the biggest gorgers of fundamental rights and thus ought to be
divested of all judicial functions, lest Indian judiciary is perceived
as Kangaroo Courts or worse Military Courts of Pakistan who
have condemned Kulbhushan Jadhav to death penalty without
following the due process of law-WE PRAY TO THE ALMIGHTY
THAT INDIANS ARE SPARED OF THE CAPRICIOUS AND
ARBITRARY JUDICIOUS DISPENSATION BY JUSTICES AKIL
KURESHI AND SHAHRUKH KATHAWALA AS LIKE THAT OF
PAKISTANI OR TALIBANI COURTS.
9. From the pure stand point of law, the Respondent in a Contempt
Proceeding is on a equal footing of that of an accused in a
criminal case. He is entitled to all protection available to an
accused in a criminal case including right to silence as per Article
20 (3) of the Constitution of India.

[vide: Clough Engg. Ltd. Australia Vs. Oil Natural Gas

Corporation Mumbai 2009 Cri. L.J. 2177 ,R. S Sherawat Vs.
Rajeev Malhotra and Ors. 2018 SCC OnLine SC 1347.]
In Shiv Lal, Sub Divisional Magistrate Msahoba/
Administrator, Nagar Panchayat Vs.Ram Babu Dwivedi
11
(2006) 2 AWC1272 All it is read as under;

“A] Contempt of order in a proceeding - Main

proceeding should be decided first before
deciding contempt proceedings.

B] When any order is challenged and is

subjudice before higher Court then the
subordinate Court should wait for result of that
case and should be slow to proceed against the
party.

C] Not granting stay by the higher authority by

itself is not enough to speed up proceedings
against a person because the very order is yet to
become final. The course is recognized by a
seven-Judge Bench of Hon‟ble Supreme Court in
L. Chandra Kumar vs. Union of India AIR 1997
SC 1125 and followed in Suresh Chandra Poddar
vs. Dhani Ram AIR 2002 SC 439

D] Civil Contempt assumes a quasi-criminal

nature. The guilt of the respondent has to be
strictly established both substantially and
procedurally
Mere violation of the order is not contempt, but
it has to be established that such violation has
been willful. The casual, unintentional or
accidental violation of order is not punishable
under Contempt of Courts Act.

E] Court should be reluctant to exercise

jurisdiction under contempt. This power should
not be exercised if the offence complained of is
of a slight or trifling nature and does not cause
any substantial loss or prejudice to the
complainant.

F] Framing of charge is mandatory – Civil

Contempt – The Ld. Single Judge did not framed
12
any charge for disobedience. No such charge was
served upon the respondent – Ld. Single Judge
has straightaway assumed the facts stated in the
affidavit as correct and held the appellant guilty
of contempt. This approach of Ld. Single Judge
does not satisfy requirement of law and falls
short of it and therefore held to be erroneous
and contrary to law – Said order set aside.

G] Law laid down by earlier larger Bench of

Hon'ble Apex Court will prevail over the later
smaller Bench decision of the Hon'ble Apex
Court, even if later smaller Bench of Hon'ble
Apex Court considered the earlier larger Bench
decision the same cannot be construed at
variance with the larger Bench decision.

We find great force in the argument of Mr.

Salve that so long the stay matter in the
writ petition was not finally disposed of, the
further proceeding in the contempt case
was itself misconceived and no orders
therein should have been passed.

The scope of a contempt proceeding is very

different from that of the pending main case yet
to be heard and disposed of (in future). Besides,
the respondents in a pending case are at a
disadvantage if they are called upon to
meet the merits of the claim in a contempt
proceeding at the risk of being punished.

The High Court should have first taken up the

stay matter without any threat to the
respondents in the writ case of being, punished
for contempt. Only after disposing it of, the
other case should have been taken up.

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The learned Single Judge has proceeded with the
contempt proceeding without awaiting any more
and without examining the genuineness and
bonafide of the actions of the opposite party in
moving the stay vacation application in writ
petition and stay application in special appeal
against the interim order passed in writ petition
in question. Thus in our considered opinion the
action of the learned Single Judge in this regard
does not satisfy the law laid down by the Hon'ble
Apex Court.

Contempt of Court are quasi-criminal acts, and

orders punishing them should, generally
speaking, he treated as orders in criminal cases,
and leave to appeal against them should only he
granted on the well-known principles on which
leave to appeal in criminal cases is given.

As to whether learned Single Judge was justified

in holding the appellant guilty of contempt
without framing any specific charge against him
and without asking any reply thereon from the
appellant?

In J & K v. Mohd. Yaqoob Khan and Ors.

reported in MANU/SC/0530/1992 : (1992) 2
UPLBEC 1166. In para 5 and 6 of the judgment
Hon'ble Apex Court observed as under:-

We find great force in the argument of Mr.

Salve that so long the stay matter in the writ
petition was not finally disposed of, the further
proceeding in the contempt case was itself
misconceived and no orders therein should have
been passed.

The scope of a contempt proceeding is very

different from that of the pending main case yet

14
to be heard and disposed of (in future). Besides,
the respondents in a pending case are at a
disadvantage if they are called upon to meet the
merits of the claim in a contempt proceeding at
the risk of being punished.

The High Court should have first taken up the

stay matter without any threat to the
respondents in the writ case of being, punished
for contempt. Only after disposing it of, the
other case should have been taken up.

We do not want to decide any of these

controversies between the parties at this stage
except holding that the orders passed in the
contempt proceeding were not justified, being
pre-mature, and must, therefore, be entirely
ignored. The High Court should first take up the
stay matter in the writ case and dispose it of by
an appropriate order. Only thereafter it shall
proceed to consider whether the State and its
authorities could be accused of being guilty of
having committed contempt of Court.

The course adopted by the High Court does not

commend itself as proper.

Wherever the order whose disobedience is

complained, about is appealed against and stay
of its operation is pending before the Court, it
will be appropriate to take up for consideration
the prayer for stay either earlier or at least
simultaneously with the complaint for contempt
To keep the prayer for stay stand by and to
insist upon proceeding with the complaint for
contempt might in many conceivable cases, as
here, cause serious prejudice. This is the view
taken in State of J&K v. Mohd. Yaqoob Khan.

15
If under the threat of proceedings of contempt,
the appellants had to comply with the order of
the learned Single Judge notwithstanding the
pendency of their appeal and the application for
stay. The petitioners are confronted with a
position where their stay application is virtually
rendered infructuous by the steps they had to
lake on threat of contempt.

We, accordingly, direct that all further

proceedings in the contempt proceedings be
stayed. It will be appropriate for the High Court
to take up and dispose of the application for stay
without reference to the developments in the
interregnum, namely, that the respondent had to
obey the order of the learned Single Judge under
pain of proceedings of contempt.

Even if the appellant had not implemented the

order and if the appellant had brought to the
notice of the Tribunal that the order of the
Tribunal is under challenge before the High Court
under Article 226 of the Constitution of India
(the course which has been judicially recognized
by a seven-Judge Bench of this Court in L.
Chandra Kumar v. Union of India the Tribunal
should have been slow to proceed against the
party in a contempt action. Of course it can be
said that no stay was granted by the court when
the appellant moved the Division Bench of the
High Court under Article 226 of Constitution, Not
granting the stay by itself is not enough to speed
up proceedings against a person in contempt
because the very order is yet to become final.

Three Judges Bench of Hon'ble Apex Court in

Mohd. Yaqoob Khan's case (supra) has held that
so long the stay matter in the writ petition was

16
not finally disposed of the further proceeding in
the contempt case was itself misconceived and
no orders should have been passed. The Hon'ble
Apex Court has further held that in the
circumstances of the case, the contempt
proceeding is premature and liable to be ignored.

In many conceivable cases, as here, cause

serious prejudice.

Thus in view of law laid down by the Hon'ble

Apex Court we have no hesitation to hold that
law laid down by earlier larger Bench of Hon'ble
Apex Court will prevail over the later smaller
Bench decision of the Hon'ble Apex Court, even if
later smaller Bench of Hon'ble Apex Court
considered the earlier larger Bench decision the
same cannot be construed at variance with the
larger Bench decision

The learned Single Judge has proceeded with the

contempt proceeding without awaiting any more
and without examining the genuineness and
bonafide of the actions of the opposite party in
moving the stay vacation application in writ
petition and stay application in special appeal
against the interim order passed in writ petition
in question. Thus in our considered opinion the
action of the learned Single Judge in this regard
does not satisfy the law laid down by the Hon'ble
Apex Court.

Contempt of Court are quasi-criminal acts, and

orders punishing them should, generally
speaking, he treated as orders in criminal cases,
and leave to appeal against them should only he
granted on the well-known principles on which
leave to appeal in criminal cases is given.

17
27. In Sukhdev Singh v. Hon'ble C.J., AIR 1954
SC 186 Hon'ble Apex Court held as under :

The High Court can deal with it summarily and

adopt its own procedure. All that is necessary is
that the procedure is fair and that the contemner
is made aware of the charge against him and
given a fair and reasonable opportunity to
defend himself.

In Aswini Kumar Rath and Ors. v. P.C. Mukherjee

and Ors. MANU/WB/0101/1965 :
(1969)ILLJ816Cal , in para 11 of the decision
Court held as under :

Contempt of court, the proceeding all through

takes the shape of a person charged with an
offence of which he has to exculpate himself
(1841) 1 Q.B. 616 (ibid), and the guilt of the
respondent has to be strictly established both
substantively and procedurally vide Oswald on
Contempt, p. 17 : Gorden v. Gordon (1946) 1 A.
E.R. 247 (253) C.A.

Respondent must be made aware of the

charge against him and given a fair and
reasonable opportunity to defend himself,
before holding him guilty of committing any
contempt. Therefore, it was necessary for
learned single Judge to frame specific
charge against the appellant and intimate
him asking his reply thereon and after
affording him opportunity of fair hearing, if
he would have been found guilty of committing
contempt for wilful disobedience of the order
passed by this Court only in that eventuality any
order punishing the appellant could be justified.

18
Only notice was issued to the appellant directing
him to appear in person before the court on
3.11.2004. On that day also neither any specific
charge either of non-compliance of the order was
framed nor any charge regarding delayed
compliance of the order passed by such courts
has been framed and served upon the appellant
nor he was asked to reply any such charge
rather learned Single Judge has straightway
assumed the facts stated in the affidavit filed in
support of impleadment application as correct
and held the appellant guilty of committing
contempt of this court. This approach of learned
single Judge in our considered opinion, does not
satisfy requirement of law and falls short of it,
therefore held to be erroneous and contrary to
law. Accordingly the impugned order passed by
learned Single Judge is not sustainable in the
eye of law and liable to be set aside.

It is well settled that disobedience of the order of

court in order to constitute punishable contempt
must be wilful and deliberate, whether a
particular acts and conduct would be amount to
wilful and deliberate defiance of the order passed
by the court has been under consideration at
various occasion before different High Courts. In
Manohar Lal v. Sri Prem Shankar Tandon and
Ors. MANU/UP/0051/1960 : AIR1960All231 . In
para 16, 17 and 18 of the decision a Division
Bench of this Court held as under :-

16. A civil contempt has been very well defined

in the case of O'Shea v. O'Shea and Parnell
(1890) 15 P.D. 59-

"When a man does not obey an order of the

Court made to some civil proceeding, to do or

19
abstain from doing something as where an
injunction is granted in an action against a
defendant, and he does not perform what he is
ordered to perform, and then a motion is made
to commit him for contempt that is really only a
procedure to get something done in the action,
and has nothing of a criminal nature in it.

Even a civil contempt, when proceedings

are taken under the (Contempt of Courts
Act, assumes a quasi-criminal nature: but
there are certain principles which have to be
borne in mind in considering the cases of civil
contempt, which is different from a criminal
contempt. In a civil contempt disobedience,
in order to be punishable as a contempt,
must be wilful and not merely casual,
accidental and unintentional.

Contempt proceedings are of an extraordinary

nature and they give special power to all the
Courts of record. It is a power which is exercise
summarily and the Court should be reluctant to
exercise this extraordinary power particularly in
a civil contempt, and this power should never he
exercise if the offence complained of is of a
slight or trifling nature and does not cause any
substantial loss or prejudice to he complainant.
This power should be exercised with scrupulous
care and only when the case is clear and beyond
reasonable doubt. See Emperor v. Murli Manohar
Prasad MANU/BH/0195/1928i>

In order to punish a person for contempt of

court, it must be established not merely that the
order of the Court has been violated but also
that such violation has been willful

20
Thus in view of the aforesaid discussions, it is
clear that the power of courts of record is extra-
ordinary in nature, therefore, the courts
should be reluctant to exercise this power
particularly in a civil contempt and this
power should not be exercised if the
offence complained of is of a slight or
trifling nature and does not cause any
substantial loss or prejudice to the
complainant. Even a civil contempt, when the
proceedings are taken under the contempt of
courts Act, assumes a quasi-criminal nature,
therefore, this power should be exercised with
scrupulous care and only when the case is clear
and beyond reasonable doubt. Before punishing
a person under the provisions of Contempt of
Court Act there must be wilful and
deliberate defiance of the order of court, it
should not be merely accidental and casual
in nature. It is not each and every defiance
and disobedience of the order of court can
be held wilful disobedience of the order of
the court. To arrive at a correct conclusion,
every aspect of the matter referred herein
before inasmuch as bonafide of the
contemner is to be examined by the court
dealing with contempt proceedings.

The impugned judgment and order passed by

learned Single Judge in contempt petition No.
2101 of 2003 is wholly erroneous and not
sustainable in the eyes of law and is liable to be
set aside. Accordingly the same is set aside by
this Court. The contempt notice issued against
the appellant is hereby discharged.

Now coming to the first question as to whether

As to whether in given facts and circumstances
21
 of the case the learned Single Judge was
justified in proceeding with the contempt
proceedings before the disposal of the stay
vacation application moved on behalf of the
respondents in the writ petition in as much as
stay application moved in the special appeal filed
on behalf of the respondents against the interim
order dated 4,4.2003 passed in Civil Misc. Writ
Petition No. 14661 of 2003? In this connection at
the very out set it is necessary to point out that
the Contempt of Courts Act 1971 defines
contempt of courts and civil contempt as under :

2. Definitions.--In this Act, unless the context

otherwise requires.

(a) Contempt of Court" means civil contempt or

criminal contempt;

(b) "Civil contempt" means wilful disobedience to

any judgment, decree, direction, order, writ or
other process of a Court or wilful breach of an
undertaking given to a Court.”

10. That, similar illegality was earlier committed by Justice S.J.

Kathawala in Contempt Petition (L) No.112 of 2018 in NOM
No.1616 of 2018 in Suit No.976 of 2018 by directing the
Respondent to remain present in the Court. But Adv. Nilesh Ojha
appearing for Respondent pointed out the illegality then Justice S.J.
Kathawala recalled the said order by “Suo-Motu speaking to the
order”.
The said order dated 5th September, 2018 reads as under;
“SUO MOTO SPEAKING TO THE ORDER DATED 5 TH
SEPTEMBER, 2018
CORAM: S.J.KATHAWALA,J,
DATED :- 5th SEPTEMBER,2018
In the above Contempt Petition, the Order dated 5th
September, 2018 stating that “The Respondents /
Contemnors are directed to remain present before this
22
 Court on the returnable date.” was inadvertently
uploaded. In view thereof, the said Order dated 5th
September, 2018, is recalled and substituted by the
following order :
1. The above Contempt Petition is filed by the
Petitioner against the Respondents / Contemnors
under Article-215 of the Constitution of India and the
Contempt of Courts Act, 1971.
2. Heard the learned Advocate appearing for the
Petitioner.
3. I am prima facie satisfied that the Respondents /
Contemnors have committed willful breach of the
orders dated 19th June, 2018, 25th July, 2018, 1st
August, 2018 and 16th August, 2018 read with
subsequent correction order dated 20th August, 2018
passed by this Court, by failing to perform the
undertakings given therein from time to time by the
Respondents / Contemnors. Therefore, issue show
cause notice to the Respondents / Contemnors as
provided under the Contempt of Courts (CAT) Rules,
1992 read with Rule 1036 (1) of the High Court
(Original Side) Rules, 1980 to regulate proceedings for
contempt under Article-215 of the Constitution of
India and the Contempt of Courts Act, 1971,
returnable on 9th October, 2018.
4. Stand over to 9th October, 2018 ”
But again same illegality is committed by Justice Kathawala while
sitting with Justice Akil Kureshi on 28th June, 2019. This shows their
callous criminal conduct to misuse the power and act against the law
and thereby violate the fundamental rights of the citizens.

11. In Quantum Securities Pvt.Ltd Vs. New Delhi

Television Ltd. AIR 2015 SC 3699 it is ruled a under;

―The High Court issued notice to the Appellants to

show cause as to why action under the provisions of
the Contempt of Court Act not be initiated against

23
 them for violation of the orders. The court also issued
an order restraining the Appellants from issuing
defamatory communication in connection with the
Respondent. Hence, the present appeal.

Held, disposing off the appeals.

Once the Notice of Motion is decided on merits in

accordance with the law then the parties can work out
their rights by taking recourse to legal remedies
available to them for pursuing their grievance to
higher fora either in appeal or revision, and may also
prosecute the contempt proceedings arising out of the
main case.

The contempt proceedings out of which these appeals

arise are stayed. After the disposal of the Notice of
Motion, the contempt proceedings may be decided in
accordance with law including its maintainability.”

12. In Gurudas Alvani Vs. Mahajani of Temple 2016 SCC

OnLine Bom 3980 it is ruled as under ;

―4. The learned Counsel for the petitioner places

reliance on the decision of the Hon'ble Apex
Court in the case of Quantum Securities Pvt.
Ltd. v. New Delhi Television Ltd., reported
in (2015) 10 SCC 602, in order to submit that in
such a case, it is not appropriate that the main
application is kept pending and application for
contempt/breach of injunction, is taken up in
precedence.

5. The learned Counsel for the respondent, in all

fairness, does not dispute this position.”

13. That, Hon‟ble Supreme Court in Kanwar Singh Saini Vs. High
Court of Delhi 2012 4 SCC 307 had ruled that, the Contempt
jurisdiction cannot be exercised for recovery of the amount the
execution proceedings should be adopted. It is read as under;
24
― A. Civil Suit ---------Enforcement of interim or
final orders/ decree of court including
undertakings given to court------- Role
ofexecution vis- a vis contempt proceedings -----
---Proper and advisable first mode for
enforcement of orders, held, is to file an
application under Or. 39 R. 2- A CPC for
enforcement of interim orders/ undertaking to
court when suit is pending, or to file application
for execution in case suit has been decreed
based on undertaking or otherwise ------
When matter relates to infringement of a decree
or decretal order embodying rights as between
parties, contempt jurisdiction cannot be invoked
merely because other remedies may take time or
as more circumlocutory in nature ----Violation of
permanent injunction or willful was disposed of,
can be set right in execution proceedings by
attachment of defaulter‘s property or by
detention in civil prison, and not by contempt
proceedings -----Contempt jurisdiction is
attracted when disobedience of court is willful
and contumacious -----Civil Procedure Code,
1908-----Or. 39 R. 2-A and Or. 21 R. 32 and Or.
21 ----Contempt of Courts Act, 1971 ----S. 2 (b) -
----Specific Relief Act, 1963, Ss. 36 to 42

I. Contemnor of Courts Act, 1971 ------ Ss.

2(b) and (c) ---- Civil or criminal contempt ----
Determination of ----- Violation / breach of
undertaking given to court on basis of which
decree was passed ---- Held, constitutes civil
contempt since it is for sole benefit of other
party to the suit and court must satisfy itself
that such violation was willful and intentional----
In such situation administration of justice could

25
be undermined if order of competent court is
permitted to be disregarded with impunity, but it
does not
involve sufficient public interest for it to be
treated as criminal contempt ---- Where
contemnor satisfies court that disobedience was
under compelling circumstances, no punishment
can be awarded---For violation of a judgment or
decree provisions of criminal contempt arenot
attracted.

J. Civil Procedure Code, 1908 ---- S. 47, Or. 21

and Or.21 R.32 ---- Execution ---- Nature of
disobedience/non-compliance by judgment-
debtor ---- Relevance of ---- Held, in execution
proceedings , court may not be bothered with
whether disobedience is willful or not and court
is bound to execute decree irrespective of
consequences -----Civil Suit ----Execution

K. Contempt of Court ---- Criminal Contempt ----

Initiation of criminal contempt proceedings up to
punishment therefor ----- If properly
conducted/contempt power properly exercised -
---- False affidavit (taking inconsistent pleas in
reply filed to application under Or. 39 R. 2-A
CPC) High Court convicting appellant for criminal
contempt and sending him to jail but not
granting any relief so far as enforcement of
decree was concerned-----Propriety --- Held,
purposes of initiation of contempt proceedings
are twofold: to ensure compliance with order
passed by court; and to punish contemnor as he
has the audacity to challenge majesty of law ---
High Court erred in not taking any steps for
enforcing decree and sending appellant to jail,
which was a glaring example of non-application

26
 of mind and non-observance of procedure
prescribed by law--- Contempt of Courts Act,
1971, Ss. 10, 11, 12 and 2(c)

L. Contempt of Court---- Contempt proceedings

--- Nature of --- Standard of proof ---- Benefit of
doubt --- Held, contempt proceedings being
quasi-criminal in nature, standard of proof
required is the same as in other criminal cases --
- Alleged contemnor is entitled to protection of
all safeguard/rights provided in criminal
jurisprudence, including benefit of doubt ----
There must be clear-cut case of obstruction of
administration of justice by a party intentionally
to bring the matter within the ambit of
contempt--- Case should not rest only on
surmises and conjectures.
Also relied on In Mangal Das Vs. Akhand Pratap Singh
MANU/UP/2139/2016 it is ruled as under ;

“Code of Civil Procedure, 1908 (CPC) - Order XXI

Rule 32; Constitution Of India – Article 215, ,
361(2) – Contempt Of Courts Act, 1971-
Ordinarily, contempt is not a mode of execution
of a decree, when other modes have been
provided. The Apex Court in Kanwar Singh Saini
v. High Court of Delhi, MANU/SC/1111/2011 :
(2012) 4 SCC 307, had an occasion to examine
the enforcement of interim/final orders/decree
of the court including undertakings given to the
court vis-à-vis. contempt.

Paragraph 21 of the said judgment is quoted

hereunder:

"The provision of order XXI, Rule 32, C.P.C., applies

to prohibitory as well as mandatory injunctions. In

27
other words, it applies to cases where the party is
directed to do some act and also to the cases where
he is abstained from doing an act. Still to put it
differently, a person disobeys an order of injunction
not only when he fails to perform an act which he is
directed to do but also when he does an act which he
is prohibited from doing. Execution of an injunction
decree is to be made in pursuance of Order XXI, Rule
32, C.P.C., as the C.P.C., provides a particular manner
and mode of execution and, therefore, no other mode
is permissible."

12. Thus, from the language of Order XXI, Rule 32,

C.P.C., it does not transpire that proceedings under
Order XXI, Rule 32, C.P.C., cannot be invoked, once a
decree of permanent injunction is satisfied. On the
contrary, language is explicit, as it provides that as
and when there is a willful disobedience of a decree, it
may be enforced by detention/attachment or by both
as against the party in default. The rationale is that
in the event a decree-holder complains of willful
disobedience on the part of a judgment-debtor,
then the proceedings under Order XXI, Rule 32,
would involve investigation of facts and leading
of evidence, as to whether there is any willful
disobedience or not and only thereafter, a
finding can be arrived at as to the willful
disobedience. If so, then penal consequences of civil
detention/attachment of property or both would
follow.

13. Thus, this Court has no hesitation in holding that

the remedy if any, for the applicant is to invoke
the forum under Order XXI, Rule 32, C.P.C., the
instant contempt is not maintainable and is
liable to be dismissed. The contempt is
dismissed in limine.

28
14. In Jiwani Kumari Parekh Vs. Satyabrata Chakravorty AIR
1991 SC 326 it is ruled as under;

―Contempt of Courts Act (70 of 1971), S.2, S.14-

Contempt of Court – Failure to handover the
possession of disputed premises inspite of
Supreme Court direction- Held, Deliberate
disobedience of order of Court is necessary -
Supreme Court issued direction to respondent to hand
over possession of disputed premises to petitioner
within a specified date, but the respondent could not
comply with the direction, due to various court
proceedings, it cannot be held that the respondent
had committed by wilful or deliberate or reckless
disobedience of the order of the Supreme Court. The
contempt petition against respondent is liable to be
dismissed.‖
Hence the Ld. Judges don‟t know the basic principles of law that the
Contempt proceedings cannot be use/initiated when the main order
is under challenge and when the other remedy of execution is
available.
Similar extortion techniques were adopted and illegalities are
committed by “Justice Akil Kureshi & Justice S.J.Kathawala” in
the case of Dr.Santosh Shetty.
15. ILLEGAL SUMMONING A PERSON IS AN OFFENCE IN
SECTION 341, 342 OF INDIAN PENAL CODE :-

Hon‟ble Supreme Court (Full Bench) in Raja Ram Vs. State

(1971) 3 SCC 945 had ruled as under;
“India Penal code sec. 341, 342 – Conviction of Police
Officer for illegally Summoning a accused/witnesses –
Held –The Police Officer cannot Summon a woman or
a male under fifteen years of age – Such persons
must be asked to attend interrogation at the place
where they reside – This is mandatory provision of
section 160 of Cr. P.C. – The Police Officer by calling
the witnesses at police station kept them under
wrongful restraint - The Police Officer is guilty under

29
 section 341 of I.P.C. – His conviction is proper.”
Similar illegalities are committed by Justice Akil Kureshi & Justice
S.J.Kathawala and therefore they are also liable for action under
section 341 & 342 of IPC.
Section 219 of Indian Penal Code reads as under;
219. Public servant in judicial proceeding
corruptly making report, etc., contrary to
law.—Whoever, being a public servant, corruptly
or maliciously makes or pronounces in any stage
of a judicial proceeding, any report, order,
verdict, or decision which he knows to be
contrary to law, shall be punished with
imprisonment of either description for a term
which may extend to seven years, or with fine,
or with both.
16. In Sailajanand Pande Vs. Suresh Chandra Gupta 1968 SCC
OnLine Pat 49 it is ruled as under ;

―ACTION AGAINST JUDICIAL

OFFICER CAUSING ILLEGAL ARREST

– Magistrate acting illegally and without

jurisdiction in the matter of arrest is not
protected – Magistrate has no absolute
protection regard to his act of illegal arrest.

First class Magistrate issued letter to appear and

directed to show cause against prosecution on
the petition filed by another person – When
petitioner appeared he was detained to custody
– The bail bond furnished by the petitioner were
rejected by the Magistrate deliberately –
Petitioner claimed that due to such illegal,
unauthorized and malafide conduct of the
Magistrate in arresting him, he has lowered in
the estimation of the public and claimed for the
damage – The action of the Magistrate by
putting the petitioner under arrest for realinsing
the certificate dues by adopting questionable and
30
unlawful method is highly deplorable – It was
unbecoming of a Magistrate – It is relevant to
investigate to find out the motive, the propriety
and the legality of the action of the Magistrate in
arresting the petitioner – It is not a judicial act
although exercised during the
Judicial proceedings – The Magistrate exercised
its power with the ulterior object of coercing the
petitioner.
At page 178 of the 14th Edition of Salmond on
Torts it is said -
"The wrong of false imprisonment consists in the
act of arresting or imprisoning any person
without lawful justification, or otherwise
preventing him without lawful justification from
exercising his right of leaving the place in which
he is."
In my opinion, defendant No. 1 has committed
the wrong of false imprisonment in this case.

But - "Wherever protection of the exercise

of judicial powers applies, it is so absolute
that no allegation that the acts or words
complained of were done or spoken mala
fide, maliciously, corruptly, or without
reasonable or probable cause suffices to
found an action." Further it has been
pointed out under the title "Liability of
Magistrates" at page 160 of Volume 25 of
Halsbury's Laws of England, 3rd Edition,
that -

"Protection is afforded by common law and by

statute to justices in respect of acts done in the
execution of their duty as such; but this
protection does not extend to cases where they
have acted either maliciously and without
reasonable and probable cause, or without or in
31
 excess of their jurisdiction, and in such cases
they are liable to an action for damages at the
suit of the party "aggrieved,"
A similar passage occurs at page 768 of Volume
38 of the Halsbury's Laws of England, 3rd Edition
-
A Magistrate or other person acting In a judicial
capacity is not liable for acts done within his
jurisdiction, but he is liable to an action for false
imprisonment If he unlawfully commits a person
to prison in a matter in which he has no
jurisdiction, provided that he has knowledge, or
the means of knowledge of the facts which show
that he has no jurisdiction."
17. In R.R. Parekh Vs. High Court of Gujrat (2016) 14 SCC 1,
case Hon‟ble Supreme Court had upheld the order of dismissal of a
Judge.
It is ruled as under;
―A Judge passing an order against
provisions of law in order to help a party is
said to have been actuated by an oblique
motive or corrupt practice - breach of the
governing principles of law or procedure by
a Judge is indicative of judicial officer has
been actuated by an oblique motive or
corrupt practice - No direct evidence is
necessary - A charge of misconduct against
a Judge has to be established on a
preponderance of probabilities - The
Appellant had absolutely no convincing
explanation for this course of conduct -
Punishment of compulsory retirement
directed.
A wanton breach of the governing principles of
law or procedure by a Judge is indicative of
judicial officer has been actuated by an oblique
motive or corrupt practice. In the absence of a

32
 cogent explanation to the contrary, it is for the
disciplinary authority to determine whether a
pattern has emerged on the basis of which an
inference that the judicial officer was actuated by
extraneous considerations can be drawn - It is
not the correctness of the verdict but the
conduct of the officer which is in question- .
There is on the one hand a genuine public
interest in protecting fearless and honest officers
of the district judiciary from motivated criticism
and attack. Equally there is a genuine public
interest in holding a person who is guilty of
wrong doing responsible for his or his actions.
Neither aspect of public interest can be ignored.
Both are vital to the preservation of the integrity
of the administration of justice - A charge of
misconduct against a Judge has to be
established on a preponderance of probabilities -
No reasons appear from the record of the
judgment, for We have duly perused the
judgments rendered by the Appellant and find
merit in the finding of the High Court that the
Appellant paid no heed whatsoever to the
provisions of Section 135.”
18. Full Bench of Hon‟ble Supreme in the case of Union of India Vs.
K. K. Dhawan (1993) 2 SCC 56 (Full Bench) had ruled that, if any
Judge passes any order to favor or disfavor anyone then he is not
acting as a Judge and he should be prosecuted and removed from the
post of a Judge by ordering proper enquiry, it is ruled as under;
“If any Judge acts negligently or recklessly or in
order to confer undue favour on a person is not
acting as a Judge. And he can be proceeded for
passing unlawful order apart from the fact that
the order is appealable. Action for violation of
Conduct Rules is must for proper administration.
“28. Certainly, therefore, the officer who exercises
judicial or quasi - judicial powers acts negligently or

33
recklessly or in order to confer undue favour on a
person is not acting as a Judge. Accordingly, the
contention of the respondent has to be rejected. It is
important to bear in mind that in the present case, we
are not concerned with the correctness or legality of
the decision of the respondent but the conduct of the
respondent in discharge of his duties as an officer. The
legality of the orders with reference to the nine
assessments may be questioned in appeal or revision
under the Act. But we have no doubt in our mind that
the Government is not precluded from taking the
disciplinary action for violation of the Conduct Rules.
Thus, we conclude that the disciplinary action can be
taken in the following cases:
(i) Where the officer had acted in a manner as would
reflect on his reputation for integrity or good faith or
devotion to duty;
(ii)if there is prima facie material to show recklessness
or misconduct in the discharge of his duty;
(iii)if he has acted in a manner which is unbecoming
of a government servant;
(iv)if he had acted negligently or that he omitted the
prescribed conditions which are essential for the
exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party-,
(vi) if he had been actuated by corrupt motive
however, small the bribe may be because Lord Coke
said long ago "though the bribe may be small, yet the
fault is great."
“17. In this context reference may be made to the
following observations of Lopes, L.J. in Pearce v.
Foster.
"If a servant conducts himself in a way inconsistent
with the faithful discharge of his duty in the service, it
is misconduct which justifies immediate dismissal.
That misconduct, according to my view, need not be
misconduct in the carrying on of the service of the

34
 business. It is sufficient if it is conduct which is
prejudicial or is likely to be prejudicial to the interests
or to the reputation of the master, and the master will
be justified, not only if he discovers it at the time, but
also if he discovers it afterwards, in dismissing that
servant."
(emphasis supplied)‖ `

19. In Nagar Mahapalika of the City of Kanpur v. Mohan

Singh 1966 SCC OnLine SC 1 it is read as under;

“An allegation of contempt of court is a serious one

and is considered by courts with a certain amount of
strictness A person against whom such an
allegation is made is entitled to be told the
precise nature of it. Vague charge of
contempt is not a fair or permissible way of
charging a person with contempt of court. The
contempt alleged cannot be left to be spelt out
from the allegations made nor can the person
charged be left to guess what contempt is
alleged against him. these defects are serious."

"We will deal first with the case of the Municipality. It

will have been noticed that it was not the respondent's
case that the Municipality had issued any new licence
after the order of July 14, 1961. In fact, it was
conceded that it did not do so. What was said was that
the Municipality adopted a practice of realising
rickshaw taxes from the owners and printing the fact
of the receipt of the tax on the rickshaws and
permitting them to ply without licences. The way the
case seems to have been put before the High
Court was that this was a subterfuge adopted by
the Municipality to get round the order of the
High Court, the object of which was to stop new
rickshaws plying for hire, by permitting
rickshaws to ply without a licence on payment of

35
 the tax. This contention was accepted by the
High Court. It seems to us somewhat
unfortunate that the matter proceeded in this
way. An allegation of contempt of court is a
serious one and is considered by courts with a
certain amount of strictness. A person against
whom such an allegation is made is entitled to
be told the precise nature of it. In this case the
respondent did not state that any subterfuge
had been adopted by the Municipality or that the
Municipality had sought to defeat the orders of
the courts; that was only insinuated. This is not
a fair or permissible way of charging a person
with contempt of court. The contempt alleged
cannot be left to be spelt out from the
allegations made nor can the person charged be
left to guess what contempt is alleged against
him.

Further, paragraph 8 of the petition for committal for

contempt stated that there was a direct contravention
of the order which of course, there was not as no
licences had been issued. Neither were any
particulars given as to how the alleged practice
that was adopted was intended to get round the
order, nor of how the Municipality permitted
rickshaws to ply without licences. We think the
learned Attorney-General was perfectly justified
in drawing our attention to these defects in the
petition and characterizing them as serious."

20. In J.R. Parashar Vs. Prashant Bhushan AIR 2001 SC

3395 it is ruled as under;

“A…..36. It is true that the notice did not

specify the contumacious acts with which
the respondent was charged. Only a copy of
the petition had been served on the
respondents along with the notice. It would

36
 not be unreasonable for the respondent No.
2 to assume that every statement contained
in the petition formed part of the charge.

B…36.The actual proceedings for contempt are

quasi-criminal and summary in nature. Two
consequences follow from this. First, the acts
for which proceedings are intended to be
launched must be intimated to the person
against whom action is proposed to be
taken with sufficient particularity so that
the persons charged with having committed
the offence can effectively defend
themselves. It is for this reason Section 15
requires that every motion or reference
made under this section must specify the
contempt of which the person charged is
alleged to be guilty.

The second consequence which follows from the

quasi-criminal nature of the proceeding is that if
there is reasonable doubt on the existence of a
state of facts that doubt must be resolved in
favour of the person or persons proceeded
against.”

21. In Mintu Mallick Vs. The Hon‟ble High Court 2019 SCC
OnLine Cal 999 where it is ruled that;

―25. It is fundamental that in departmental

proceedings which are initiated by the issuance of a
show-cause notice or a charge-sheet, the ultimate
order or the order of punishment has to be in
consonance with the show-cause notice or charge-
sheet. In other words, the scope of the entire
proceedings is defined by the show-cause notice
or the charge-sheet. The same is true for
decisions of any State or other authority within

37
 the meaning Article 12 of the Constitution
arising out of a show-cause notice. When a
process is triggered off by a show-cause notice
or a charge-sheet, the reasonableness of what
follows, including the quality of the opportunity
afforded to the person proceeded against and
the propriety of the ultimate decision, are
pegged to and rooted in the show-cause notice.
The proceedings can, ordinarily, not be
expanded beyond what is conceived of and
outlined by the show-cause notice and any
transgression, almost invariably, would not pass
the scrutiny under judicial review.‖

22. In Sahdeo Alias Sahdeo Singh Versus State of Uttar

Pradesh and Others (2010) 3 SCC 705 in paragraph 27 as
follows:

―23. The notices had been served upon the

appellants and other alleged contemnor. There
was no case filed by the State of U.P. before
the High Court in respect of abduction of
Tej Veer Singh nor any application for
initiating contempt proceedings was ever
filed by any person. Admittedly, the
proceedings were initiated by the High
Court suo motu. The notice itself remains
incomplete, inaccurate and mis-leading.
The Registry of the High Court issued the
"dotted lines notice" without any sense of
responsibility. The notice did not mention
as what was the allegation/accusation
against either of them. It did not contain
any charge(s) against either of them. In
D.K. Basu (supra) this Court has issued as many
as eleven directions to the police authorities
inter-alia, furnishing the information of the
person arrested to his relatives; the person
38
 should be arrested only by the police officials
with clear identification marks; a memo of arrest
is to be prepared at the time of arrest, which
should be attested at least by some person from
the locality; the time, place of arrest and venue
of custody must be disclosed etc. etc. This Court
further observed that non-observance of any of
the directions issued therein would make the
Police personnel liable for departmental action
and render them liable to be punished for
Contempt of Court and proceedings for
Contempt of Court would be initiated in the High
Court having territorial jurisdiction over the
matter.”

23. Hon‟ble supreme Court in M.N. Ojha & Ors. v. Alok

Kumar Srivastav & (2009) 9 SCC 682, held that;

“Summoning of an accused in a criminal case is a

serious matter. Criminal law cannot be set into motion
as a matter of course. The order of the Magistrate
summoning the accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature
of allegations made in the complaint and the
evidence both oral and documentary in support
thereof and would that be sufficient for the
complainant to succeed in bringing charge home
to the accused. The Magistrate has to carefully
scrutinise the evidence brought on record and may
even himself put questions to the complainant and his
witnesses to elicit answers to find out the truthfulness
of the allegations or otherwise and then examine if
any offence is prima facie committed by all or any of
the accused. The case on hand is a classic illustration
of non-application of mind by the learned Magistrate.
The learned Magistrate did not scrutinize even the
contents of the complaint, leave aside the material

39
 documents available on record. The learned
Magistrate truly was a silent spectator at the time of
recording of preliminary evidence before summoning
the appellants.
The High Court committed a manifest error in
disposing of the petition filed by the appellants for
quashing the said illegal order without even adverting
to the basic facts which were placed before it for its
consideration. The High Court cannot refuse to
exercise its jurisdiction if the interest of justice so
required where the allegations made in the FIR or
complaint are so absurd and inherently improbable on
the basis of which no fair-minded and informed
observer can ever reach a just and proper conclusion
as to the existence of sufficient grounds for
proceeding. In such cases refusal to exercise the
jurisdiction may equally result in injustice more
particularly in cases where the Complainant sets
the criminal law in motion with a view to exert
pressure and harass the persons arrayed as
accused in the complaint. It is well settled and
needs no restatement that the saving of inherent
power of the High Court in criminal matters is
intended to achieve a salutary public purpose
"which is that a court proceeding ought not to
be permitted to degenerate into a weapon of
harassment or persecution. If such power is not
conceded, it may even lead to injustice". [See:
State of Karnataka Vs. L. Muniswamy (1977) 2 SCC
699).”
24. In Birla Corporation Ltd. Vs. Aventz 2019 SCC OnLine SC
682 it is ruled as under;

34. The order of the Magistrate summoning the

Accused must reflect that he has applied his mind to
the facts of the case and the law applicable thereto.
The application of mind has to be indicated by

40
disclosure of mind on the satisfaction. Considering the
duties on the part of the Magistrate for issuance of
summons to Accused in a complaint case and that
there must be sufficient indication as to the
application of mind and observing that the Magistrate
is not to act as a post office in taking cognizance of
the complaint, in Mehmood Ul Rehman, this Court
held as under:-

22. The Code of Criminal Procedure requires speaking

order to be passed Under Section 203 Code of
Criminal Procedure when the complaint is dismissed
and that too the reasons need to be stated only
briefly. In other words, the Magistrate is not to act as
a post office in taking cognizance of each and every
complaint filed before him and issue process as a
matter of course. There must be sufficient indication
in the order passed by the Magistrate that he is
satisfied that the allegations in the complaint
constitute an offence and when considered along with
the statements recorded and the result of inquiry or
report of investigation Under Section 202 Code of
Criminal Procedure, if any, the Accused is answerable
before the criminal court, there is ground for
proceeding against the Accused Under Section 204
Code of Criminal Procedure, by issuing process for
appearance. The application of mind is best
demonstrated by disclosure of mind on the
satisfaction. If there is no such indication in a case
where the Magistrate proceeds Under Sections
190/204 Code of Criminal Procedure, the High Court
Under Section 482 Code of Criminal Procedure is
bound to invoke its inherent power in order to prevent
abuse of the power of the criminal court. To be called
to appear before the criminal court as an Accused is
serious matter affecting one's dignity, self-respect and

41
image in society. Hence, the process of criminal court
shall not be made a weapon of harassment.

35. In Pepsi Foods Ltd. and Anr. v. Special

Judicial Magistrate (1998) 5 SCC 749, the
Supreme Court has held that summoning of an
Accused in a criminal case is a serious matter and that
the order of the Magistrate summoning the Accused
must reflect that he has applied his mind to the facts
of the case and law governing the issue. In para (28),
it was held as under:-

28. Summoning of an Accused in a criminal case is a

serious matter. Criminal law cannot be set into motion
as a matter of course. It is not that the Complainant
has to bring only two witnesses to support his
allegations in the complaint to have the criminal law
set into motion. The order of the Magistrate
summoning the Accused must reflect that he has
applied his mind to the facts of the case and the law
applicable thereto. He has to examine the nature of
allegations made in the complaint and the evidence
both oral and documentary in support thereof and
would that be sufficient for the Complainant to
succeed in bringing charge home to the Accused. It is
not that the Magistrate is a silent spectator at the time
of recording of preliminary evidence before
summoning of the Accused. The Magistrate has to
carefully scrutinise the evidence brought on record
and may even himself put questions to the
Complainant and his witnesses to elicit answers to find
out the truthfulness of the allegations or otherwise
and then examine if any offence is prima facie
committed by all or any of the Accused.

The principle that summoning an Accused in a criminal

case is a serious matter and that as a matter of
course, the criminal case against a person cannot be

42
set into motion was reiterated in GHCL Employees
Stock Option Trust v. India Infoline Limited
MANU/SC/0271/2013 : (2013) 4 SCC 505.

36. To be summoned/to appear before the Criminal

Court as an Accused is a serious matter affecting
one's dignity and reputation in the society. In taking
recourse to such a serious matter in summoning the
Accused in a case filed on a complaint otherwise than
on a police report, there has to be application of mind
as to whether the allegations in the complaint
constitute essential ingredients of the offence and
whether there are sufficient grounds for proceeding
against the Accused. In Punjab National Bank and Ors.
v. Surendra Prasad Sinha MANU/SC/0345/1992 :
1993 Supp (1) SCC 499, it was held that the issuance
of process should not be mechanical nor should be
made an instrument of oppression or needless
harassment.

37. At the stage of issuance of process to the

Accused, the Magistrate is not required to record
detailed orders. But based on the allegations made in
the complaint or the evidence led in support of the
same, the Magistrate is to be prima facie satisfied that
there are sufficient grounds for proceeding against the
Accused. In Jagdish Ram v. State of Rajasthan and
Anr. MANU/SC/0196/2004 : (2004) 4 SCC 432, it was
held as under:-

10. The taking of cognizance of the offence is an area

exclusively within the domain of a Magistrate. At this
stage, the Magistrate has to be satisfied whether there
is sufficient ground for proceeding and not whether
there is sufficient ground for conviction. Whether the
evidence is adequate for supporting the conviction,
can be determined only at the trial and not at the
stage of inquiry. At the stage of issuing the process to

43
the Accused, the Magistrate is not required to record
reasons.

38. Extensive reference to the case law would clearly

show that the allegations in the complaint and
Complainant's statement and other materials must
show that there are sufficient grounds for proceeding
against the Accused. In the light of the above
principles, let us consider the present case whether
the allegations in the complaint and the statement of
the Complainant and other materials before the
Magistrate were sufficient enough to constitute prima-
facie case to justify the Magistrate's satisfaction that
there were sufficient grounds for proceeding against
the Respondents-Accused and whether there was
application of mind by the learned Magistrate in taking
cognizance of the offences and issuing process to the
Respondents.

39. Respondents No. 1 to 5 are minority shareholders

in the Appellant-Company. Respondent No. 6 is a
lawyer and a trustee of Birla Education Trust.
Respondent No. 6 had been empowered to file petition
before the CLB. Respondents No. 7, 8 and 9 are the
Directors of Respondents No. 1, 3 and 2 respectively.
On 10.03.2010, Company Petition CP No. 1/2010 was
filed before the Company Law Board Under Sections
235, 237, 247, 250, 397, 398, 402 and 403 of the
Companies Act, 1956 by Respondents No. 1 to 5 who
are the shareholders of the Appellant Company
alleging oppression and mismanagement. M/s. Birla
Education Trust (represented by Respondent No. 6) is
also one of the Petitioners in the Company Petition.
Along with the Company Petition, the copy of the
documents in question i.e. documents No. 1 to 54
including document No. 1-Internal Audit Report were
filed and advance copy of the Company Petition and
copy of the documents were given to the Appellant.”
44
But the one line order directing „Issue Notice‟ in a Contempt petition
is a contempt petition is highly illegal.
# CHARGE # THE POOR LEVEL OF UNDERSTANDING
Hon‟ble Supreme Court in Superintendent of Central Excise and
others Vs. Somabhai Ranchhodhbhai Patel AIR 2001 SC 1975 ,
ruled as under;
“(A) Contempt of Courts Act (70 of 1971), S.2 –
Misinterpritation of judgment of Hon‟ble
Supreme Court. The level of judicial officer's
understanding can have serious impact on other
litigants-
Misinterpretation of order of Supreme Court -
Civil Judge of Senior Division erred in reading
and understanding the Order of Supreme Court -
Contempt proceedings initiated against
the Judge - Judge tendered unconditional
apology saying that with his limited
understanding, he could not read the order
correctly. While passing the Order, he
inadvertently erred in reading and understanding
the Order of Supreme Court - Supreme Court
issued severe reprimand – Held, The officer is
holding a responsible position of a Civil Judge of
Senior Division. Even a new entrant to judicial
service would not commit such mistake
assuming it was a mistake - It cannot be ignored
that the level of judicial officer's understanding
can have serious impact on other litigants. There
is no manner of doubt that the officer has acted
in most negligent manner without any caution or
care whatsoever- Without any further comment,
we would leave this aspect to the disciplinary
authority for appropriate action, if any, taking
into consideration all relevant facts. We do not
know whether present is an isolated case of such
an understanding? We do not know what has
been his past record? In this view, we direct that

45
 a copy of the order shall be sent forthwith to the
Registrar General of the High Court.”.
25. On the point of predictability of the outcome of a case and
transparency in the judiciary, the reputed and well-known
learned authors and legal experts of Bangladesh in ―The
Desired Qualities of a Good Judge‖,have expressed thus:

―In all acts of judgment, the Judges should be

transparent so that not only the lawyers but also
the litigants can easily predict the outcome of a
case. Transparency and predictability are
essential for the judiciary as an institution of
public credibility.‖
In ―A.M. Mathur vs. Pramod Kumar Gupta;
(1990) 2 SCC 533”, it was held that –the quality in
decision making is as much necessary for judges
to command respect as to protect the
independence of the judiciary.
Other qualities of a good judge have been described
by the said authors as under:
(i) A judge is a pillar of our entire justice
system and the public expects highest and
irreproachable conduct from anyone
performing a judicial function.
(ii) Judgesmust be knowledgeable about
the law, willing to undertake in-depth legal
research, and able to write decisions that
are clear, logical and cogent. Their
judgment should be sound and they should
be able to make informed decisions that
will stand up to close scrutiny.
(iii) Centuries ago Justinian said that precepts
of law are three in number i.e. to live honestly,
to give every man his due and to injure none.
(iv) Judiciary as an organ of the state has
to administer fair justice according to the
direction of the Constitution and the
mandate of law.
46
(v) Every judge is a role model to the society
to which he belongs. The same are embodied in
all the religious scriptures. Socrates once
stated that a judge must listen courteously,
answer wisely, considers soberly and
decides impartially.
(vi) The qualities of a good judge include
patience, wisdom, courage, firmness, alertness,
incorruptibility and the gifts of sympathy and
insight. In a democracy, a judge is accorded
great respect by the state as well as its citizens.
He is not only permitted to assert his freedom
and impartiality but also expected to use all his
forensic skill to protect the rights of the
individual against arbitrariness.
(vii) Simon Rifkind laid down ―The
courtroom, sooner or later, becomes the
image of the judge. It will rise or fall to the
level of the judge who presides over it… No
one can doubt that to sit in the presence of
a truly great judge is one of the great and
moving experiences of a lifetime.‖
(viii) There is no alternative of qualified and
qualitative judges who religiously follow the rule
of law and administer good governance.
(ix) The social service, which the Judge
renders to the community, is the removal of
a sense of injustice.
(x) Judiciary handled by legal person is
the custodian of life and property of the
people at large, and so the pivotal and central
role as played by the judicial officers should
endowed higher degree of qualities in
consonance with the principles of “standard of
care”, “duty of care” and “reasonable person” as
necessary with judicial functionaries.
(xi) The American Bar Association once

47
published an article called Good Trial
Judges in which it discussed the difference
in the qualities of a good judge and a bad
judge and noted that practicing before a
"good judge is a real pleasure," and
"practicing before a bad judge is misery.
(xii) The Judges exercise the judicial
power on trust. Normally when one sits in
the seat of justice,he is expected to be
honest, trustworthy, truthful and a highly
responsible person. The public perception
of a Judge is very important. Marshal, Chief
Justice of the United States Supreme Court
said, ―we must never forget that the only
real source of power we as judges can tap
is the respect of the people. It is undeniable
that the Courts are acting for the people
who have reposed confidence in them.‖
That is why Lord Denning said, ―Justice is
rooted in confidence, and confidence is
destroyed when the right-minded go away
thinking that the Judge is biased‖.
(xiii) A Judge ought to be wise enough to know
that he is fallible and therefore, ever ready to
learn; great and honest enough to discard all
mere pride of opinion, and follow truth wherever
it may lead, and courageous enough to
acknowledge his errors.
(xiv) Judge ought to be more learned than
witty, more reverend than plausible and more
advised than confident. Above all things,
integrity is their portion and proper virtue.
Moreover, patience and gravity of hearing is also
an essential part of justice, and an over speaking
Judge is known as well tuned cymbal.
(xv) It is the duty of the Judges to follow
the law,as they cannot do anything

48
whatever they like. In the language of
Benjamin N. Cardozo – “The Judge even when
he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his
inspiration from consecrated principles”.
(xvi) Judges should be knowledgeable
about the law, willing to undertake in-depth
legal research, and able to write decisions
that are clear and cogent.
(xvii) If a Judge leaves the law and makes
his own decisions, even if in substance they
are just, he loses the protection of the law
and sacrifices the appearance of
impartiality which is given by adherence to
the law.
(xviii) A Judge has to be not only impartial
but seen to be impartial too.
(xix) Every judge is a role model to the society
to which he belongs. The judges are certainly,
accountable but they are accountable to their
conscience and people‟s confidence. As observed
by Lord Atkin – “Justice is not a cloistered virtue
and she must be allowed to suffer the criticism
and respectful, though outspoken, comments of
ordinary men”.
(xx) With regard to the accountability of
the Judges of the subordinate Courts and
Tribunals it may be mentioned that the
Constitution authorizes the High Court
Division to use full power of
superintendence and control over
subordinate Courts and Tribunals. Under
the Constitution, a guideline in the nature
of Code of Conduct can be formulated for
the Judges of the subordinate courts for the

49
 effective control and supervision of the
High Courts Division. In this method, the
judicial accountability of the Judges of the
subordinate courts could be ensured.‖
26. In State of Rajasthan vs. Prakash Chand & Ors.;
(1998) 1 SCC 1”, it has been held as under;

―It must be remembered that it is the duty

of every member of the legal fraternity to
ensure that the image of the judiciary is not
tarnished and its respectability eroded. …
Judicial authoritarianism is what the
proceedings in the instant case smack of. It
cannot be permitted under any guise. … It
needs no emphasis to say that all actions of
a Judge must be judicious in character.
Erosion of credibility of the judiciary, in the
public mind, for whatever reasons, is
greatest threat to the independence of the
judiciary. Eternal vigilance by the Judges to
guard against any such latent internal
danger is, therefore, necessary, lest we
―suffer from self-inflicted mortal wounds‖.
We must remember that the constitution
does not give unlimited powers to any one
including the Judge of all levels. The
societal perception of Judges as being
detached and impartial referees is the
greatest strength of the judiciary and every
member of the judiciary must ensure that
this perception does not receive a setback
consciously or unconsciously. Authenticity
of the judicial process rests on public
confidence and public confidence rests on
legitimacy of judicial process. Sources of
legitimacy are in the impersonal application
by the Judge of recognised objective

50
 principles which owe their existence to a
system as distinguished from subjective
moods, predilections, emotions and
prejudices.‖
27. In “Madhav Hayawadanrao Hoskot vs. State of
Maharashtra; (1978) 3 SCC 544”, Justice Shri V.R. Krishna
Iyer reproduced the well-known words of Mr. Justice William J.
Brennan, Jr. and held as under;

“16. Nothing rankles (cause annoyance)more

in the human heart than a brooding
sense (fear / anxiety) of injustice.

…Democracy‘s very life depends upon

making the machinery of justice so
effective that every citizen shall believe in
and benefit by its impartiality and fairness.

The social service which the Judges render

to the community is the removal of a sense
/ fear of injustice from the hearts of people,
which unfortunately is not being done, and
the people (victims & dejected litigants)
have been left abandoned to suffer and
bear their existing painful conditions, and
absolutely on the mercy of GOD.‖

28. Justice Krishna Iyer in Raghbir Singh vs State Of

Haryana 1980 SCR (3) 277 said :

―4. We conclude with the disconcerting note

sounded by Abraham Lincoln :
“If you once forfeit the confidence of your fellow
citizens you can never regain their respect and
esteem. It is true that you can fool all the
people some of the time, and some of the
people all the time, but you cannot fool all
the people all the time.‖

51
29. In Umesh Chandra Vs State of Uttar Pradesh & Ors.
2006 (5) AWC 4519 ALL it is ruled as under;

―If Judge is passing illegal order either due to

negligence or extraneous consideration giving
undue advantage to the party then that Judge is
liable for action in spite of the fact that an order
can be corrected in appellate/revisional
jurisdiction - The acceptability of the judgment
depends upon the creditability of the conduct,
honesty, integrity and character of the officer
and since the confidence of the litigant public
gets affected or shaken by the lack of integrity
and character of the Judicial Officer, in such
cases imposition of penalty of dismissal from
service is well justified
The order was passed giving undue advantage to
the main accused - grave negligence is also a
misconduct and warrant initiation of disciplinary
proceedings - in spite of the fact that an order
can be corrected in appellate/revisional
jurisdiction but if the order smacks of any
corrupt motive or reflects on the integrity of the
judicial officer, enquiry can be held .

JUDICIAL OFFICERS - has to be examined in the

light of a different standard that of other
administrative officers. There is much requirement of
credibility of the conduct and integrity of judicial
officers - the acceptability of the judgment depends
upon the creditability of the conduct, honesty,
integrity and character of the officer and since the
confidence of the litigant public gets affected or
shaken by the lack of integrity and character of the
judicial officer, in such cases imposition of penalty of
dismissal from service is well justified - Judges
perform a "function that is utterly divine" and officers
of the subordinate judiciary have the responsibility of
52
building up of the case appropriately to answer the
cause of justice. "The personality, knowledge, judicial
restrain, capacity to maintain dignity" are the
additional aspects which go into making the Courts
functioning successfully - the judiciary is the
repository of public faith. It is the trustee of the
people. It is the last hope of the people. After every
knock of all the doors fail, people approach the
judiciary as a last resort. It is the only temple
worshipped by every citizen of this nation, regardless
of religion, caste, sex or place of birth because of the
power he wields. A Judge is being judged with more
strictness than others. Integrity is the hallmark of
judicial discipline, apart from others. It is high time
the judiciary must take utmost care to see that the
temple of justice does not crack from inside which will
lead to a catastrophe in the justice delivery system
resulting in the failure of public confidence in the
system. We must remember woodpeckers inside pose
larger threat than the storm outside
The Inquiry Judge has held that even if the
petitioner was competent to grant bail, he passed the
order giving undue advantage of discharge to the
main accused and did not keep in mind the gravity of
the charge. This finding requires to be considered in
view of the settled proposition of law that grave
negligence is also a misconduct and warrant initiation
of disciplinary proceedings .

The petitioner, an officer of the Judicial Services of

this State, has challenged the order of the High Court
on the administrative side dated 11.02.2005
(Annex.11) whereby the petitioner has been deprived
of three increments by withholding the same with
cumulative effect.
The petitioner, while working as Additional Chief
Metropolitan Magistrate, Kanpur, granted bail on

53
29.06.1993 to an accused named Atul Mehrotra in
Crime Case No. 3240 of 1992 under Section 420, 467,
468, I.P.C. Not only this, an application was moved by
the said accused under Section 239, Cr.P.C. for
discharge which was also allowed within 10 days vide
order dated 06.08.1993. The said order of discharge
was however reversed in a revision filed by the State
According to the prosecution case, the accused was
liable to be punished for imprisonment with life on
such charges being proved, and as such, the officer
concerned committed a gross error of jurisdiction by
extending the benefit of bail to the accused on the
same day when he surrendered before the Court.
Further, this was not a case where the accused ought
to have been discharged and the order passed by the
officer was, therefore, an act of undue haste.
The then Chief Manager, Punjab National Bank,
Birhana Road Branch, Kanpur Nagar made a complaint
on the administrative side on 11.11.1995 to the then
Hon'ble Chief Justice of this Court. The matter was
entrusted to the Vigilance Department to enquire and
report. After almost four and half years, the vigilance
inquiry report was submitted on 14.03.2002 and on
the basis of the same the petitioner was suspended on
30th April, 2002 and it was resolved to initiate
disciplinary proceedings against the petitioner. A
charge sheet was issued to the petitioner on 6th
September, 2002 to which he submitted a reply on
22.10.2002. The enquiry was entrusted to Hon'ble
Justice Pradeep Kant, who conducted the enquiry and
submitted a detailed report dated 06.02.2002 (Annex-
8). A show cause notice was issued to the petitioner
along with a copy of the enquiry report to which the
petitioner submitted his reply on 19.05.2004
(Annex.10). The enquiry report was accepted by the
Administrative Committee and the Full Court
ultimately resolved to reinstate the petitioner but

54
imposed the punishment of withholding of three
annual grade increments with cumulative effect which
order is under challenge in the present writ petition.

B) JUDICIAL OFFICERS - has to be examined in

the light of a different standard that of other
administrative officers. There is much
requirement of credibility of the conduct and
integrity of judicial officers - the acceptability of
the judgment depends upon the creditability of
the conduct, honesty, integrity and character of
the officer and since the confidence of the
litigant public gets affected or shaken by the
lack of integrity and character of the judicial
officer, in such cases imposition of penalty of
dismissal from service is well justified - Judges
perform a "function that is utterly divine" and
officers of the subordinate judiciary have the
responsibility of building up of the case
appropriately to answer the cause of justice.
"The personality, knowledge, judicial restrain,
capacity to maintain dignity" are the additional
aspects which go into making the Courts
functioning successfully - the judiciary is the
repository of public faith. It is the trustee of the
people. It is the last hope of the people. After
every knock of all the doors fail, people
approach the judiciary as a last resort. It is the
only temple worshipped by every citizen of this
nation, regardless of religion, caste, sex or place
of birth because of the power he wields. A Judge
is being judged with more strictness than
others. Integrity is the hallmark of judicial
discipline, apart from others. It is high time the
judiciary must take utmost care to see that the
temple of justice does not crack from inside
which will lead to a catastrophe in the justice

55
delivery system resulting in the failure of public
confidence in the system. We must remember
woodpeckers inside pose larger threat than the
storm outside
In Government of Tamil Nadu Vs. K.N. Ramamurthy,
AIR 1997 SC 3571, the Hon'ble Supreme Court held
that exercise of judicial or quasi
judicial power negligently having adverse affect on
the party or the State certainly amounts to
misconduct.
In M.H. Devendrappa Vs. The Karnataka State Small
Industries Development Corporation, AIR 1998 SC
1064, the Hon'ble Supreme Court ruled that
any action of an employee which is detrimental to
the prestige of the institution or employment, would
amount to misconduct.
In High Court of Judicature at Bombay Vs. Udaysingh
& Ors., A.I.R. 1997 SC 2286 the Hon'ble Apex Court
while dealing with a case of judicial officer held as
under:-
"Since the respondent is a judicial officer and the
maintenance of discipline in the judicial service is a
paramount matter and since the acceptability of the
judgment depends upon the creditability of the
conduct, honesty, integrity and character of the officer
and since the confidence of the litigant public gets
affected or shaken by the lack of integrity and
character of the judicial officer, we think that
imposition of penalty of dismissal from service is well
justified."
This Court in Ram Chandra Shukla Vs. State of U.P. &
Ors., (2002) 1 ALR 138 held that the case of judicial
officers has to be examined in the light of a different
standard that of other administrative officers. There is
much requirement of credibility of the conduct and
integrity of judicial officers.
In High Court of Judicature at Bombay V. Shirish

56
Kumar Rangrao Patil & Anr., AIR 1997 SC 2631, the
Supreme Court observed as under:-
"The lymph nodes (cancerous cells) of corruption
constantly keep creeping into the vital veins of the
judiciary and the need to stem it out by judicial
surgery lies on the judiciary itself by its self-imposed
or corrective measures or disciplinary action under the
doctrine of control enshrined in Articles 235, 124 (6)
of the Constitution. It would, therefore, be necessary
that there should be constant vigil by the High Court
concerned on its subordinate judiciary and self-
introspection.
When such a constitutional function was exercised by
the administrative side of the High Court any judicial
review thereon should have been made not only with
great care and circumspection, but confining strictly to
the parameters set by this Court in the aforesaid
decisions.--------"
In Government of Andhra Pradesh Vs.
P. Posetty, (2000) 2 SCC 220, the Hon'ble Supreme
Court held that sense of propriety and acting in
derogation to the prestige of the institution and
placing his official position under any kind of
embarrassment may amount to misconduct as the
same may ultimately lead that the delinquent had
behaved in a manner which is unbecoming of an
employee/Government servant.
In All India Judges' Association Vs. Union of India &
Ors., AIR 1992 SC 165, the Hon'ble Supreme Court
observed that Judges perform a "function that is
utterly divine" and officers of the subordinate judiciary
have the responsibility of building up of the case
appropriately to answer the cause of justice. "The
personality, knowledge, judicial restrain, capacity to
maintain dignity" are the additional aspects which go
into making the Courts functioning successfully.
In Tarak Singh & Anr. Vs. Jyoti Basu & Ors., (2005) 1

57
 SCC 201, the Hon'ble Supreme Court observed as
under:-
"Today, the judiciary is the repository of public faith.
It is the trustee of the people. It is the last hope of the
people. After every knock of all the doors fail, people
approach the judiciary as a last resort. It is the only
temple worshipped by every citizen of this nation,
regardless of religion, caste, sex or place of birth
because of the power he wields. A Judge is being
judged with more strictness than others. Integrity is
the hallmark of judicial discipline, apart from others. It
is high time the judiciary must take utmost care to
see that the temple of justice does not crack from
inside which will lead to a catastrophe in the justice
delivery system resulting in the failure of public
confidence in the system. We must remember
woodpeckers inside pose larger threat than the storm
outside."

30. In the case of Raman Lal Vs. State 2001 Cri.L.J. 800. it
is ruled as under;

― A] Cri. P.C. Sec. 197 – Sanction for

prosecution of High Court Judge – Accused
are Additional High Court Judge,
Suprintendant of Police Sanjeev Bhatt and
others – The accused hatched conspiracy
to falsely implicate a shop owner in a case
under N.D.P.S. Act and when shop owner
submitted to their demands he was
discharged – Complaint u.s. 120-B, 195,
196, 342, 347, 357, 368, 388, 458, 482,
I.P.c. and Sec. 17, 58 (1), (2) of NDPS Act
– Held – there is no connection between
official duty and offence – No sanction is
required for prosecution – Registration of
F.I.R. and investigation legal and proper.

58
B] Cri. P.C. Sec. 156 – Investigation
against accused Addl. High Court Judge –
Whether prior consultation with Chief
Justice is necessary prior filling of F.I.R.
against a High Court Judge as has been
laid down by Supreme Court in K.
Veerswami‘s case (1991) (3) SCC 655) –
Held – In K. Veerswami‘s case Supreme
Court observed that the Judges are liable
to be dealt with just the same as any other
person in respect of criminal offence and
only in offence regarding corruption the
sanction for criminal prosecution is
required – the directions issued by Hon‘ble
Supreme Court are not applicable in
instant case.

C] The applicant – Ram Lal Addl. High Court

Judge hatched criminal conspiracy – The Bar
Association submitted a representation to
Hon‟ble Chief Justice of India on 11-09-1997
requesting to not to confirm Raman Lal as
Judge of the High Court – Later on he was
transferred to Principal Judge of city Civil and
Sessions Court at Ahmedabad – S.P. (C.I.D.)
Jaipur sent a questionnaire through the
registrar, Gujrat High Court to accused Addl.
High Court Judge – Chief Justice granted
permission to I.O. to interrogate – Later on I.O.
sent letter to applicant to remain present before
Chief Judicial Magistrate at the time of filing the
charge-sheet – Applicant filed petition before
High Court challenging it – Petition of applicant
was rejected by High Court and Supreme Court
in limine – No relief is required to be granted
to petitioner in view of the facts of the case.

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

59
 court made it clear that an inference of
conspiracy has to be drawn on the basis of
circumstantial evidence only because it
becomes difficult to get direct evidence on such
issue – The offence can only be proved largely
from the inference drawn from acts or illegal
ommission committed by them in furtherance of
a common design – Once such a conspiracy is
proved, act of one conspirator becomes the act
of the others – A Co-conspirator who joins
subsequently and commits overt acts in
furtherance of the conspiracy must also be held
liable – Proceeding against accused cannot be
quashed.

E] Jurisdiction – Continuing offence – Held –

Where complainants allegations are of stinking
magnitude and the authority which ought to
have redressed it have closed its eyes and not
even trid to find out the real offender and the
clues for illegal arrest and harassment are not
enquired then he can not be let at the mercy of
such law enforcing agencies who adopted an
entirely indifferent attitude – Legal maxim
Necessiatas sub lege Non continetureQuia Qua
Quad Alias Non EstLictumNecessitasfacitLictum,
Means necessity is not restrained by laws –
Since what otherwise is not lawful necessity
makes it lawful – Proceeding proper cannot be
quashed.”

31. In Smt. Justice Nirmal Yadav Vs. C.B.I. 2011 (4) RCR
(Criminal) 809 it is ruled as under;

“Hon‘ble Supreme Court observed:

Be you ever so high, the law is above you.‖

Merely because the petitioner has enjoyed
one of the highest constitutional offices(
60
Judge of a High Court ), she cannot claim
any special right or privilege as an accused
than prescribed under law. Rule of law has
to prevail and must prevail equally and
uniformly, irrespective of the status of an
individual.

The petitioner Justice Mrs. Nirmal Yadav, the

then Judge of Punjab and Haryana High Court
found to have taken bribe to decide a case
pending before her- CBI charge sheeted - It is
also part of investigation by CBI that this
amount of Rs.15.00 lacs was received by Ms.
Yadav as a consideration for deciding RSA
No.550 of 2007 pertaining to plot no.601, Sector
16, Panchkula for which Sanjiv Bansal had
acquired interest. It is stated that during
investigation, it is also revealed that Sanjiv
Bansal paid the fare of air tickets of Mrs. Yadav
and Mrs. Yadav used matrix mobile phone card
provided to her by Shri Ravinder Singh on her
foreign visit. To establish the close proximity
between Mrs. Yadav, Ravinder Singh, Sanjiv
Bansal and Rajiv Gupta, CBI has given details of
phone calls amongst these accused persons
during the period when money changed hands
and the incidence of delivery of money at the
residence of Ms. Nirmaljit Kaur and even during
the period of initial investigation - the CBI
concluded that the offence punishable
under Section 12 of the PC Act is established
against Ravinder Singh, Sanjiv Bansal and Rajiv
Gupta whereas offence under Section 11 of the
PC Act is established against Mrs.Justice Nirmal
Yadav whereas offence punishable under Section
120-B of the IPC read with Sections
193, 192, 196, 199 and 200 IPC is also
established against Shri Sanjiv Bansal, Rajiv
61
Gupta and Mrs. Justice Nirmal yadav
It has been observed by Hon'ble Supreme Court
"Be you ever so high, the law is above you.‖
Merely because the petitioner has enjoyed
one of the highest constitutional offices(
Judge of a High Court ), she cannot claim
any special right or privilege as an accused
than prescribed under law. Rule of law has
to prevail and must prevail equally and
uniformly, irrespective of the status of an
individual. Taking a panoptic view of all the
factual and legal issues, I find no valid ground
for judicial intervention in exercise of inherent
jurisdiction vested with this Court. Consequently,
this petition is dismissed.
B) In-House procedure 1999 , for enquiry
against High Court and Supreme Court
Judges - Since the matter pertains to
allegations against a sitting High Court
Judge, the then Hon'ble Chief Justice of
India, constituted a three members
committee comprising of Hon'ble Mr.Justice
H.L. Gokhale, the then Chief Justice of
Allahabad High Court, presently Judge of
Hon'ble Supreme Court, Justice K.S.
Radhakrishnan, the then Chief Justice of
Gujarat High Court, presently, Judge of
Hon'ble Supreme Court and Justice Madan
B.Lokur, the then Judge of Delhi High Court,
presently Chief Justice Gauhati High Court
in terms of In-House procedure adopted by
Hon'ble Supreme Court on
7.5.1997. The order dated 25.8.2008
constituting the Committee also contains
the terms of reference of the
Committee. The Committee was asked to
enquire into the allegations against Justice

62
 Mrs. Nirmal Yadav, Judge of Punjab and
Haryana High Court revealed, during the
course of investigation in the case
registered vide FIR No.250 of 2008 dated
16.8.2008 at Police Station, Sector 11,
Chandigarh and later transferred to CBI.
The Committee during the course of its
enquiry examined the witnesses and
recorded the statements of as many as 19
witnesses, including Mrs.Justice Nirmal
Yadav (petitioner), Ms. Justice Nirmaljit
Kaur, Sanjiv Bansal, the other accused
named in the FIR and various other
witnesses. The Committee also examined
various documents, including data of phone
calls exchanged between Mrs. Justice
Nirmal yadav and Mr.Ravinder Singh and
his wife Mohinder Kaur, Mr.Sanjiv Bansal
and Mr.Ravinder Singh, Mr.Rajiv Gupta and
Mr. Sanjiv Bansal. On the basis of evidence
and material before it, the Committee of
Hon'ble Judges has drawn an inference that
the money delivered at the residence of
Hon'ble Ms.Justice Nirmaljit Kasectionur
was in fact meant for Ms.Justice Nirmal
Yadav.‖
32. Hon‟ble 5 Judge Bench of Privy Council in Appeal No.21
of 1977 in the matter between Ramesh Maharaj Vs. The
Attorney General (1978) 2 WLR 902 had ruled that;

“According their Lordships in agreement with Phillips

J.A. would answer question (2): “Yes; the failure of
Maharaj J. to inform the appellant of the specific
nature of the contempt of Court with which he
was charged did contravene a constitutional
right of the appellant in respect of which he was
entitled to protection under s.1(a).”
The order of Maharaj J. committing the appellant
63
 to prison was made by him in the exercise of the
judicial powers of the State; the arrest and
detention of the appellant pursuant to the
judge‘s order was effected by the executive arm
of the State. So if his detention amounted to a
contravention of his rights under S.1(a), it was a
contravention by the State against which he was
entitled to protection.
…This is not vicarious liability; it is a liability of
the State itself. It is not a liability in tort at all; it
is a liability in the public law of the State, not of
the judge himself, which has been newly created
by S.6(1) and (2) of the Constitution.
.. It is only in the case of imprisonment or
corporal punishment already undergone before
an appeal can be heard that the consequences of
the judgment or order cannot be put right on
appeal to an appellate court. It is true that
instead of, or even as well as, pursuing the
ordinary course of appealing directly to an
appellate court, a party to legal proceeding who
alleges that a fundamental rule of natural justice
has been infringed in the course of the
determination of his case, could in theory seek
collateral relief in an application to the High
Court under.
For these reasons the appeal must be allowed and the
case remitted to the high court with a direction
to assess the amount of monetary compensation
to which the appellant is entitled .The
respondent must pay the costs of this appeal
and of the proceeding in both Courts below.‖

33. In Walmik s/o Deorao Bobde Vs. State 2001 ALLMR

(Cri.)1731, it is ruled that
In our opinion a reckless arrest of a citizen and
detention even under a warrant of arrest by a

64
 competent Court without first satisfying itself of
such necessity and fullfilment of the
requirement of law is actionable as it violates
not only his fundamental rights but such action
deserves to be condemned being taken in utter
disregard to human rights of an individual
citizen.

Compensation granted

“11. We have ascertained the status of the petitioner

so as to work out his entitlement for compensation.
We are informed that the petitioner works as
Production Manager in a reputed firm M/s. Haldiram
Bhujiwala, and draws salary of more than Rs.7000/-
p.m. He has, wife, two marriageable daughters and a
son in his family. After giving our anxious thought to
the matter we award a sum of Rs.10,000/- to the
petitioner as compensation. The State is directed to
pay the amount of Rs.10,000/- to the petitioner within
a period of four weeks, or deposit the same in this
Court. We are also granting cost to the petitioner
quantified to Rs.5000/-. It will be open for
the State to recover the amount so awarded from the
monetary benefits/pension, the delinquent clerk/his
family is entitled to receive or will be receiving on his
death. Rule made absolute in the aforesaid terms.
Certified copy expedited.

12. Additional Registrar, to circulate the copy of this

order to all the District & Sessions Judges, for being
circulated to Judicial Officers working within their
jurisdiction.”

34. In Dr. Mahmood Nayyer Azam Vs. State (2012) 8 SCC

1, it is ruled as under ;

Article 21 of the Constitution - RIGHT TO

LIFE includes the right to live with human
65
dignity and all that goes along with it – If
reputation is injured by unjustified acts of Public
servants then Writ Court can grant
compensation- Rs.5.00 lacs (Rupees five lacs
only) should be granted towards compensation
to the appellant - law cannot become a silent
spectator - The law should not be seen to sit by
limply, while those who defy if go free, and those
who seek its protection lose hope - When
citizenry rights are sometimes dashed against
and pushed back by the members of City Halls,
there has to be a rebound and when the rebound
takes place, Article 21 of the Constitution springs
up to action as a protector- The action of the
State, must be “right, just and fair”. Using any
form of torture would neither be „right nor just
nor fair‟ and, therefore, would be impermissible,
being offensive to Article 21 - Any psychological
torture inflicts immense mental pain. A mental
suffering at any age in life can carry the brunt
and may have nightmarish effect on the victim.
The hurt develops a sense of insecurity,
helplessness and his self-respect gets gradually
atrophied- the authorities possibly have some
kind of sadistic pleasure or to “please someone”
meted out the appellant with this kind of
treatment. It is not to be forgotten that when
dignity is lost, the breath of life gets into
oblivion. In a society governed by rule of law
where humanity has to be a laser beam, as our
compassionate constitution has so emphasized,
the police authorities cannot show the power or
prowess to vivisect and dismember the same.
When they pave such path, law cannot become a
silent spectator - The law should not be seen to
sit by limply, while those who defy if go free, and
those who seek its protection lose hope.

66
 B] The High Court, despite no factual dispute,
has required him to submit a representation to
the State Government for adequate relief
pertaining to grant of compensation after expiry
of 19 years with a further stipulation that if he is
aggrieved by it, he can take recourse to requisite
proceedings available to him under law. We are
pained to say that this is not only asking a man
to prefer an appeal from Caesar to Caesar‟s wife
but it also compels him like a cursed Sisyphus to
carry the stone to the top of the mountain
wherefrom the stone rolls down and he is obliged
to repeatedly perform that futile exercise.

35. Full Bench of Hon‟ble Supreme Court in the case of S. Nambi

Narayanan Vs. Siby Mathews and Others (2018) 10 SCC
804had granted compensation of Rupees 50 Lacs. It is ruled as under
para 40 & 44
―40. If the obtaining factual matrix is adjudged
on the aforesaid principles and parameters,
there can be no scintilla of doubt that the
Appellant, a successful scientist having national
reputation, has been compelled to undergo
immense humiliation. The lackadaisical
attitude of the State police to arrest anyone
and put him in police custody has made the
Appellant to suffer the ignominy. The
dignity of a person gets shocked when
psycho-pathological treatment is meted out
to him. A human being cries for justice
when he feels that the insensible act has
crucified his self-respect. That warrants
grant of compensation under the public law
remedy. We are absolutely conscious that a
civil suit has been filed for grant of
compensation. That will not debar the
constitutional court to grant compensation

67
taking recourse to public law. The Court
cannot lose sight of the wrongful
imprisonment, malicious prosecution, the
humiliation and the defamation faced by
the Appellant. In Sube Singh v. State of
Haryana and Ors. MANU/SC/0821/2006 : (2006)
3 SCC 178, the three-Judge Bench, after
referring to the earlier decisions, has opined:
38. It is thus now well settled that the
award of compensation against the State is
an appropriate and effective remedy for
redress of an established infringement of a
fundamental right Under Article 21, by a
public servant. The quantum of compensation
will, however, depend upon the facts and
circumstances of each case. Award of such
compensation (by way of public law remedy) will
not come in the way of the aggrieved person
claiming additional compensation in a civil court,
in the enforcement of the private law remedy in
tort, nor come in the way of the criminal court
ordering compensation Under Section 357 of the
Code of Criminal Procedure.
44. Mr. Giri, learned senior Counsel for the
Appellant and the Appellant who also appeared
in person on certain occasions have submitted
that the grant of compensation is not the
solution in a case of the present nature. It is
urged by them that the authorities who have
been responsible to cause such kind of
harrowing effect on the mind of the
Appellant should face the legal
consequences. It is suggested that a
Committee should be constituted to take
appropriate steps against the erring
officials. Though the suggestion has been
strenuously opposed, yet we really remain

68
 unimpressed by the said oppugnation. We
think that the obtaining factual scenario
calls for constitution of a Committee to find
out ways and means to take appropriate
steps against the erring officials. For the
said purpose, we constitute a Committee
which shall be headed by Justice D.K. Jain,
a former Judge of this Court. The Central
Government and the State Government are
directed to nominate one officer each so
that apposite action can be taken. The
Committee shall meet at Delhi and function from
Delhi. However, it has option to hold meetings at
appropriate place in the State of Kerala. Justice
D.K. Jain shall be the Chairman of the
Committee and the Central Government is
directed to bear the costs and provide
perquisites as provided to a retired Judge when
he heads a committee. The Committee shall be
provided with all logistical facilities for the
conduct of its business including the secretarial
staff by the Central Government.”

36. Hon‟ble Supreme Court in the case of Noida

Entrepreneurs Associationand Ors. Vs.NOIDA and Ors.
(2011) 6 SCC 508 had ruled as under;

Undue haste –In absence of any urgency –

Inference of malafide can be drawn against the
said public servant. Thereafter it is a matter of
investigation to find out whether there was any
ulterior motive – Fraud, Forgery, Malafides.
37. Hon‟ble Bombay High Court in Garware Polyster Ltd. Vs.
The State of Maharashtra and Ors. 2010 SCC OnLine Bom
2223 had ruled as under ;

Contempt of Courts Act – All the officers

/authorities are bound to follow the procedure

69
 laid down by Higher Court in its judgment –
The legal proceeding is initiated by the officer is
against the judgment of High Court amounts to
contempt of High Court – show cause notice is
issued to Mr. MoreshwarNathuji Dubey, Dy.
Commissioner, LTU, Aurangabad, returnable
after four weeks to show cause, as to why action
under the provisions of the Contempt of Courts
Act should not be initiated against him.

38. In Rabindra Nath Singh Vs. Rajesh Ranjan @ Pappu

Yadav and Anr. (2010) 6 SCC 417 it is ruled as under ;

Contempt of Supreme Court by High Court –

High Court passed order in breach of Supreme
Court direction – It is Contempt of Order of
Supreme Court by the High Court.
39. Hon‟ble Justice Dr. B.S.Chauhan in the case of Prof.
Ramesh Chandra Vs State MANU/UP/0708/2007 ruled as
under ;

Anything done in undue haste can also be

termed as arbitrary and cannot be
condoned in law for the reasons that in
such a fact situation mala fide can be
presumed. Vide Dr. S.P. Kapoor v. State of
Himachal Pradesh (AIR 1981 SC 281) ; Madhya
Pradesh Hasta ShilpaVikas Nigam Ltd. v.
Devendra Kumar Jain and Ors. [(1995) 1 SCC
638] and BahadursinhLakhubhaiGohil v.
Jagdishbhai M. Kamalia and Ors (AIR 2004 SC
1159).

Abuse of Power - the expression 'abuse' to

mean misuse, i.e. using his position for
something for which it is not intended. That
abuse may be by corrupt or illegal means or

70
otherwise than those means.
Abuse of Power has to be considered in the
context and setting in which it has been
used and cannot mean the use of a power
which may appear to be simply
unreasonable or inappropriate. It implies a
wilful abuse for an intentional wrong.
An honest though erroneous exercise of power or
an indecision is not an abuse of power. A
decision, action or instruction may be
inconvenient or unpalatable but it would not be
an abuse of power. Abuse of power must be in
respect of such an incident which would render
the office holder unworthy of holding the said
post and it must entail adverse civil
consequences, therefore, the word requires to be
construed narrowly. It becomes duty of the
authority holding an enquiry on such charge to
apply its mind and also to consider the
explanation furnished by the person proceeded
against in this respect.
In M. Narayanan vs. State of Kerala [ (1963)
IILLJ 660 SC ], the Constitution ''Bench of the
Hon'ble Supreme Court interpreted the
expression 'abuse' to mean as misuse, i.e. using
his position for something for which it is not
intended. That abuse may be by corrupt or
illegal means or otherwise than those means.

In Erusian Equipment & Chemicals Ltd. v. State

of West Bengal and Anr. ( [1975] 2 SCR 674 ),
the Supreme Court observed that where
Government activity involves public element, the
"citizen has a right to gain equal treatment", and
when "the State acts to the prejudice of a
person, it has to be supported by legality."

71
Functioning of "democratic form of Government
demands equality and absence of arbitrariness
and discrimination."
Every action of the executive Government must
be informed by reasons and should be free from
arbitrariness. That is the very essence of rule of
law and its bare minimum requirement.
The decision taken in an arbitrary manner
contradicts the principle of legitimate
expectation and the plea of legitimate
expectation relates to procedural fairness in
decision making and forms a part of the rule of
non-arbitrariness as denial of administrative
fairness is Constitutional anathema.
The rule of law inhibits arbitrary action and such
action is liable to be invalidated. Every action of
the State or its instrumentalities should not only
be fair, legitimate and above-board but should
be without any affection or aversion. It should
neither be suggestive of discrimination nor even
apparently give an Impression of bias, favoritism
and nepotism.
Procedural fairness is an implied mandatory
requirement to protect arbitrary action where
Statute confers wide power coupled with wide
discretion on the authority. If procedure adopted
by an authority offends the fundamental fairness
or established ethos or shocks the conscience,
the order stands vitiated. The decision making
process remains bad.
Official arbitrariness is more subversive of
doctrine of equality than the statutory
discrimination. In spite of statutory
discrimination, one knows where he stands but;
the wand of official arbitrariness can be waved in
all directions indiscriminately.
Similarly, in S.G. Jaisinghani v. Union of India

72
and Ors.( [1967] 65 ITR 34 (SC) ), the
Constitution Bench of the Apex Court observed
as under:
“In the context it is important to emphasize that
absence of arbitrary power is the first essence of
the rule of law, upon which our whole
Constitutional System is based. In a system
governed by rule of law, discretion, when
conferred upon Executive Authorities, must be
confined within the clearly defined limits. Rule of
law, from this point of view, means that the
decision should be made by the application of
known principle and rules and h general such,
decision should be predictable and the citizen
should know where he is, if a decision is taken
without any principle or without any rule, it is
unpredictable and such a decision is" antithesis
to the decision taken in accordance with the rule
of law.”
Even in a situation where an authority is vested
with a discretionary power, such power can be
exercised by adopting that mode which best
serves the interest and even if the Statute is
silent as to how the discretion should be
exercised, then too the authority cannot act
whimsically or arbitrarily and its action should be
guided by reasonableness and fairness because
the legislature never intend that its authorities
could abuse the laws or use it unfairly. Any
action which results in unfairness and
arbitrariness results in violation of Article 14 of
the Constitution. It has also been emphasized
that an authority cannot assume to itself an
absolute power to adopt any procedure and the
discretion must always be exercised according to
law. It was, therefore, obligatory for the
Chancellor to have held a proper enquiry in

73
accordance with the principles of natural justice
and mere giving of show cause notice requiring
the petitioner to submit an explanation does not
serve the purpose. The factual position that
emerges in the present case is that the report of
the Commissioner, Jhansi formed the sole basis
for taking action against the Vice-Chancellor.

A Constitution Bench of the Hon'ble Supreme

Court in Mohinder Singh Gill and Anr. v. The
Chief Election Commissioner, New Delhi and
Ors. ( [1978] 2 SCR 272 ), while
considering the issue held that observing the
principles of natural justice is necessary as it
may adversely affect the civil rights of a person.
While deciding the said case, reliance was placed
by the Hon'ble Supreme Court on its earlier
judgments in State of Orissa v. Dr. (Miss)
Binapani Dei and Ors. (1967 IILLJ 266 SC )
wherein the Court held that the procedural rights
require to be statutorily regulated for the reason
that sometimes procedural protections are too
precious to be negotiated or whittled down.
In Dr.Binapani Dei (supra), the Hon'ble Apex
Court held as under:
―It is one of the fundamental rules of our
constitutional set up that every citizen is
protected against the exercise of arbitrary
authority by the State or its officers If there
is power to decide and determine to the
prejudice of a person, duty to act judicially
is implicit in the exercise of such power. If
the essentials of justice be ignored and an
order to the prejudice of a person is made,
the order is a nullity.‖

Discretion - It signifies exercise of

74
judgment, skill or wisdom as distinguished
from folly, unthinking or haste - Discretion
cannot be arbitrary - But must be result of
judicial thinking - Word in itself implies
vigilant circumspection and care.

The contention that the impugned order was

liable to be set aside inasmuch as the Chancellor
had proceeded in hot haste after receiving the
report from the State Government on 2nd June,
2005 as he issued the notice to the Vice-
Chancellor on 24th June, 2005 and passed the
impugned order on 16th July, 2005 when his
term was going to end on 31st July, 2005 if, also
worth acceptance.

Constitution of India - Article 14 - Principles

of natural justice - If complaint made is
regarding mandatory facet of principles of
natural justice - Proof of prejudice not
required.

In a case where a result of a decision taken by

the Government the other party is likely to be
adversely affected, the Government has to
exercise its powers bona fide and not arbitrarily.
The discretion of the Government cannot be
absolute and in justiciable vide Amarnath
Ashram Trust Society v. Governor of U.P. (AIR
1998 SC 477).

Each action of such authorities must pass

the test of reasonableness and whenever
action taken is found to be lacking bona
fide and made in colorable exercise of the
power, the Court should not hesitate to
strike down such unfair and unjust
proceedings. Vide Hansraj H. Jain v. State of
Maharashtra and Ors[ (1993) 3 SCC 634 ].
75
In fact, the order of the State or State
instrumentality would stand vitiated if it lacks
bona fides as it would only be a case of
colourable exercise of power. In State of Punjab
and Anr.v. Gurdial Singh and Ors. [ (1980) 1
SCR 1071 ] the Hon'ble Apex Court has dealt
with the issue of legal malice which is, just
different from the concept of personal bias. The
Court observed as under:

“When the custodian of power is influenced

in its exercise by considerations outside
those for promotion of which the power is
vested the Court calls it a colourable
exercise and is undeceived by illusion.... If
considerations, foreign to the scope of the
power or extraneous to the statute, enter
the verdict or impels the action mala fides
or fraud on power vitiates the...official act.”

In Delhi Transport Corporation v. D.T.C. Mazdoor

Congress and Ors. [ (1991) I LLJ 395 SC
] and DwarkaDass and Ors. v. State of Haryana
(2003 CriLJ 414) the Supreme Court observed
that "discretion when conferred upon the
executive authorities, must be confined within
definite limits. The rule of law from this point of
view means that decision should be made by the
application by known-principles and rules and in
general, such decision should be predictable and
the citizen should know where he is.

The scope of discretionary power of an authority

has been dealt with by the Supreme Court in
Bangalore Medical Trust v. B.S. Muddappa and
Ors [ (1991) 3 SCR 102 ]and it has been
observed:

“Discretion is an effective tool in

76
 administration. But wrong notions about it
results in ill-conceived consequences. In
law it provides an option to the authority
concerned to adopt one or the other
alternative. But a better, proper and
legal exercise of discretion is one
where the authority examines the fact,
is aware of law and then decides
objectively and rationally what serves
the interest better. When a statute
either provides guidance or rules or
regulations are framed for exercise of
discretion then the action should be in
accordance with it. Even where
statutes are silent and only power is
conferred to act in one or the other
manner, the Authority cannot act
whimsically or arbitrarily. It should be
guided by reasonableness and
fairness. The legislature never intends
its authorities to abuse the law or use
it unfairly.‖

In Suman Gupta and Ors.v. State of J. & K. and

Ors. ( [1983] 3 SCR 985 ), the Supreme Court
also considered the scope of discretionary
powers and observed:

“We think it beyond dispute that the

exercise of all administrative power vested
in public authority must be structured
within a system of controls informed by
both relevance and reason - relevance in
relation to the object which it seeks to
serve, and reason in regard to the manner
in which it attempts to do so. Wherever the
exercise of such power affects individual
rights, there can be no greater assurance
77
 protecting its valid exercise than its
governance by these twin tests. A stream
of case law radiating from the now well
known decision in this Court in Maneka
Gandhi v. Union of India has laid down in
clear terms that Article 14 of the
Constitution is violated by powers and
procedures which in themselves result in
unfairness and arbitrariness. It must be
remembered that our entire constitutional
system is founded in the rule of law, and in
any system so designed it is impossible to
conceive of legitimate power which is
arbitrary in character and travels beyond
the bounds of reason.‟

In Union of India v. Kuldeep Singh ( AIR 2004

SC 827 ), the Supreme Court again observed:

―When anything is left to any person,

judge or Magistrate to be done
according to his discretion, the law
intends it must be done with sound
discretion, and according to law. (See
Tomlin's Law Dictionary.) In its ordinary
meaning, the word "discretion" signifies
unrestrained exercise of choice or will;
freedom to act according to one's own
judgment; unrestrained exercise of will;
the liberty or power of acting without
control other than one's own judgment.
But, when applied to public functionaries, it
means a power or right conferred upon
them by law, of acting officially in certain
circumstances according to the dictates of
their own judgment and conscience,
uncontrolled by the judgment or conscience
of others. Discretion is to discern
78
between right and wrong; and
therefore, whoever hath power to act
at discretion, is bound by the rule of
reason and law.‖

Discretion, in general, is the

discernment of what is right and
proper. It denotes knowledge and
prudence, the discernment which
enables a person to judge critically of
what is correct and proper united with
caution; nice soundness of judgment; a
science or understanding to discern
between falsity and truth, between
wrong and right, between shadow and
substance, between equity and
colourable glosses and pretences, and
not to do according to the will and
private affections of persons. When It
is said that something is to be done
within the discretion of the authorities,
that something is to be done according
to the rules of reason and justice, not
according to private opinion; according
to law and not humour. It is to be not
arbitrary, vague, and fanciful, but legal
and regular. And it must be exercised
within the limit, to which an honest
man, competent to the discharge of his
office ought to confine himself (per
Lord Halsbury, L.C., in Sharp v. Wakefield).
Also see S.G. Jaisinghani v. Union of India
{ [1967] 65 ITR 34 (SC) }.

The word "discretion" standing single and

unsupported by circumstances signifies
exercise own judgment, skill or wisdom as
distinguished from folly, unthinking or
79
haste; evidently therefore a discretion
cannot be arbitrary but must be a result of
judicial thinking. The word in itself implies
vigilant circumspection and care; therefore,
where the legislature concedes discretion it
also imposes a heavy responsibility.

MandalVikas Nigam Ltd. v. Girja Shankar

Pant and Ors (AIR 2001 SC 24).while
examining the legality of an order of
dismissal that had been passed against the
General Manager (Tourism) by the
Managing, Director. In this context, while
considering the doctrine of principles or
natural justice, the Supreme Court
observed:

“It is a fundamental requirement of law

that the doctrine of natural justice be
complied with and the same has, as a
matter of fact, turned out to be an integral
part of administrative jurisprudence of this
country. The judicial process itself
embraces a fair and reasonable opportunity
to defend though, however, we may hasten
to add that the, same is dependent upon
the facts and circumstances of each
individual case.... It is on this context, the
observations of this Court in the case of
SayeedurRehman v. The State of Bihar (
[1973] 2 SCR 1043 ) seems to be rather
apposite.”

The omission of express requirement of fair

hearing in the rules or other source of
power is supplied by the rule of justice
which is considered as an integral part of
our judicial process which also governs

80
quasi-judicial authorities when deciding
controversial points affecting rights of
parties.

G) Incidentally, Hidyatullah, C.J., in Channa

basappa Basappa Happali v. State of
Mysore ( [1971] 2 SCR 645 ), recorded the
need of compliance of certain requirements
in a departmental enquiry as at an enquiry,
facts have to be proved and the person
proceeded against must have an
opportunity to cross-examine witnesses
and to give his own version or explanation
about the evidence on which he is charged
and to lead his defence. On this state of
law simple question arises in the contextual
facts, has this been complied with? The
answer however on the factual score is an
emphatic "no".

Was the Inquiry Officer justified in coming

to such a conclusion on the basis of the
charge-sheet only? The answer cannot
possibly be in the affirmative. If the
records have been considered, the
immediate necessity would be to consider
as to who is the person who has produced
the same and the next issue could be as
regards the nature of the records-
unfortunately there is not a whisper in the
rather longish report in that regard. Where
is the Presenting Officer? Where is the
notice fixing the date of hearing? Where is
the list of witnesses? What has happened
to the defence witnesses? All these
questions arise but unfortunately no
answer is to be found in the rather longish
Report. But if one does not have it-Can
81
it be termed to be in consonance with
the concept of justice or the same
tantamounts to a total miscarriage of
justice. The High Court answers it as
miscarriage of justice and we do lend
out concurrence therewith.

H) If a statute provides for a thing to

be done in a particular manner, then it
has to be done in that manner and in
no other manner and following other
course is not permissible A decision of
the King's Bench Division in the case of
Denby (William) and Sons Limited v.
Minister of Health [(1936) 1 KB 337] may
be considered Swift, J. while dealing with
the administrative duties of the Minister
has the following to state:

“ „Discretion‟ means when it is said that

something is to be done within the
discretion of the authorities that that
something is to be done according to the
rules of reason and justice, not according
to private opinion : Rooke's case (1598) 5
Co Rep 99b 100a; according to law, and
not humor. It is to be, not arbitrary, vague,
and fanciful, but legal and regular. And it
must be exercised within the limit, to which
an honest man competent to the discharge
of his office ought to confine himself.

When the Statute provides for a particular

procedure, the authority has to follow the
same and cannot be permitted to act in
contravention of the same. It has been
hither to uncontroverted legal position that
where a statute requires to do a certain

82
thing in a certain way, the thing must be
done in that way or not at all, Other
methods or mode of performance are
impliedly and necessarily forbidden.”

The aforesaid settled legal proposition is

based on a legal maxim
"Expressiouniusestexclusioalterius",
meaning thereby that if a statute provides
for a thing to be done in a particular
manner, then it has to be done in that
manner and in no other manner and
following other course is not permissible his
maxim has consistently been followed, as is
evident from the cases referred to above. A
similar view has been reiterated in
HareshDayaram Thakur v. State of
Maharashtra and Ors (AIR 2000 SC 266).

The Commissioner did not examine any

witness in the presence of the Vice-
Chancellor; nor was the Vice-Chancellor
given any opportunity to cross-examine
them. Even date, time or place was not
fixed for the enquiry and neither any
Presenting Officer had been appointed.

Removal of the Vice-Chancellor from such

an office is a very serious matter and it not
only curtails the statutory term of the
holder of the office but also casts a stigma
on the holder as allegations rendering him
untrustworthy of the office are found to be
proved. It, therefore, becomes all the more
necessary that great care should be taken
in holding the enquiry for removal of the
Vice-Chancellor of the University and the
principles of natural justice should be

83
strictly complied with.

The contention advanced by Sri

NeerajTripathi that the Chancellor was
justified in restricting the scope of enquiry
in his discretionary powers to the issuance
of the notice alone cannot be accepted. The
Supreme Court has repeatedly observed
that even in a situation where an authority
is vested with a discretionary power, such
power can be exercised by adopting that
mode which best serves the interest and
even if the Statute is silent as to how the
discretion should be exercised, then too the
authority cannot act whimsically or
arbitrarily and its action should be guided
by reasonableness and fairness because
the legislature never intend that its
authorities could abuse the laws or use it
unfairly. Any action which results in
unfairness and arbitrariness results in
violation of Article 14 of the Constitution. It
has also been emphasized that an authority
cannot assume to itself an absolute power
to adopt any procedure and the discretion
must always be exercised according to law.
It was, therefore, obligatory for the
Chancellor to have held a proper enquiry in
accordance with the principles of natural
justice and mere giving of show cause
notice requiring the petitioner to submit an
explanation does not serve the purpose.
The order of removal of the Vice-Chancellor
is, therefore, liable to be set aside only on
this ground.

The contention of Sri NeerajTripathi,

learned Counsel for the Chancellor that
84
even in such situation, the order should not
be set aside as the petitioner has not been
able to substantiate that prejudice had
been caused to him for not observing the
principles of natural justice cannot also be
accepted. In the first instance, as seen
above, prejudice had been caused to the
petitioner in the absence of a regular
enquiry but even otherwise, the Supreme
Court in State Bank of Patiala and Ors. v.
S.K. Sharma [(1996) IILLJ 296 SC] had
observed that if the complaint made is
regarding the mandatory facet of the
principles of natural justice, then proof of
prejudice is not required.

In Dr. Bool Chand v. The Chancellor

Kurukshetra University ( (1968) II LLJ 135
SC ), the Hon'ble Supreme Court examined
a similar case wherein there was no
procedure prescribed for removal of the
Vice Chancellor under the Act applicable
therein. After examining the statutory
provisions applicable therein, the Court
lime to the following conclusion:

“The power to appoint a Vice Chancellor

has its source in the University Act;
investment of that power carries with it the
power to determine the employment; but
the power is coupled with duty. The power
may not be exercised arbitrarily, it can, be
only exercised for good cause, i.e. in the
interest of the University and only when it
is found after due enquiry held in manner
consistent with the rules of natural justice
that the holder of the office is unfit to
continue as Vice Chancellor.”
85
I) For directing a fresh enquiry on the same
allegations/charges, authority is required to
record reasons otherwise it may become a
tool for harassment of the delinquent in the
hands of authority and in that case it may
tantamount to a mala fide or colorable
exercise of power.

The expression 'willful' excludes casual,

accidental, bonafide or unintentional acts or
genuine inability. It is to be noted that a
willful act does not encompass accidental,
involuntary or negligent. It must be
intentional, deliberate, calculated and
conscious with full knowledge of legal
consequences flowing there from The
expression 'willful' means an act done with
a bad purpose, with an evil motive.

'Wilful' means an act or omission

which is cone voluntarily and
intentionally and with a specific intent
to do something the law forbids or
with the specific intent to fail to do
something the law requires to be done,
that is to say, with bad purpose either
to disobey or to disregard the law. It
signifies a deliberate action done with
evil intent or with a bad motive or
purpose.

Hon'ble Supreme Court held that word

'otherwise' should be construed as ejusdem
generis and must be interpreted to mean
some kind of legal obligation or some
transaction enforceable at law.

J) Earlier an enquiry had been conducted,

and allegation was found to be baseless. It
86
 could not have been reopened. Criminal
prosecution in this respect had also been
launched but it failed.

Observation by the Chancellor that the

petitioner did not lead any evidence in
support of denial of the charge of giving
employment to his close relatives is self-
contradictory and supports the case of the
petitioner, as he had not been given a
chance to lead evidence on the issue. It
could be possible for him only if a regular
inquiry was conducted. Petitioner's
preliminary objections that provisions of
Section 8(1) to 8(7) were not complied
with while conducting the inquiry, had been
brushed aside by the Chancellor being
merely “technical”. Such a course was not
permissible.

Judges cannot be law unto themselves expecting others to obey the

law. [Vide :Nandini Sathpathy Vs. P.L.Dani & Others (1978) 2
SCC 424]
40. Full Bench of Hon‟ble Supreme Court in Nidhi Keim & Ors.
Vs. State of Madhya Pradesh and Ors. (2017) 4 SCC 1 had
ruled that Supreme Court cannot pass any order in disregard to
statutory provisions and against the law laid down by Higher
Benches of the Supreme Court

This was the answer of Chief Justice J.S. Khehar to Adv.

Fali Nariman who asked the Court to pass an order against
the provisions of law. It is ruled as under;

“Article 142, 141 of the Constitution -

Supreme Court cannot disregard statutory
provisions, and/or a declared
pronouncement of law Under Article 141 of
the Constitution, even in exceptional
circumstances.
87
We are bound, by the declaration of the
Constitution Bench , in Supreme Court Bar
Association v. Union of India (1998) 4 SCC
409. It is, not possible for us to ignore the
decision of a Constitution Bench of this
Court- In terms of the above judgment,
with which we express our unequivocal
concurrence, it is not possible to accept,
that the words "complete justice" used in
Article 142 of the Constitution, would
include the power, to disregard even
statutory provisions, and/or a declared
pronouncement of law Under Article 141 of
the Constitution, even in exceptional
circumstances. - In our considered view,
the hypothesis-that the Supreme Court can
do justice as it perceives, even when
contrary to statute (and, declared
pronouncement of law), should never as a
rule, be entertained by any Court/Judge,
however high or noble. Can it be
overlooked, that legislation is enacted, only
with the object of societal good, and only in
support of societal causes? Legislation,
always flows from reason and logic.
Debates and deliberations in Parliament,
leading to a valid legislation, represent the
will of the majority. That will and
determination, must be equally "trusted",
as much as the "trust" which is reposed in a
Court. Any legislation, which does not
satisfy the above parameters, would per se
be arbitrary, and would be open to being
declared as constitutionally invalid. In such
a situation, the legislation itself would be
struck down.

88
 The argument advanced by Mr. Nariman,
that this Court can pass order against
statute is indeed heartening and
reassuring. But if such preposition is
accepted then, Mr. Nariman, and a number
of other outstanding legal practitioners like
him, undeniably have the brilliance to
mould the best of minds. And thereby, to
persuade a Court, to accept their sense of
reasoning, so as to override statutory law
and/or a declared pronouncement of law.It
is this, which every Court, should
consciously keep out of its reach. At the
cost of repetition, we would reiterate, that
such a situation, as is contemplated by Mr.
Nariman, does not seem to be possible.”

41. Hon‟ble Supreme Court in the case of Pandurang and

others vs State (1986) 4 SCC 436 had ruled that if any
matter is heard by a court which had no competence to hear the
matter then the judgment passed becomes nullity, being a
matter of total lack of jurisdiction. The right of any party cannot
be taken away except by amending the rules of High Court. So
long as the rules are in operation it would be arbitrary and
discriminatory to deny him his right regardless of whether it is
done by a reason of negligence or otherwise. Deliberately it
cannot be done. Even if the decision is right on merit, it is by a
forum which is lacking in competence. Even a right decision by a
wrong forum is no decision. It is non existent in the eyes of law.
And hence a nullity.

It is further observed by the Hon‟ble Supreme Court that,

“We wish to add that the registry of the High Court
was expected to have realized the position and ought
not to have created such a situation which
89
 resulted in waste of Court time, once for hearing
the appeal and next time, to consider the effect
of the rules. No court can afford this luxury with
the mountain of arrears every court carrying
these days‖
# CHARGE # MALICE IN LAW
42. In the case of West Bengal State Electricity
Board Vs. Dilip Kumar Ray (AIR 2007 SC 976), it is ruled as
under;

"Malice in law""A person who inflicts an

injury upon another person in
contravention of the law is not allowed to
say that he did so with the innocent mind:
he is taken to know the law, and he must
act within the law. He may, therefore, be
guilty of malice in law, although, so far the
state of mind is concerned, he acts
ignorantly, and in that sense innocently".
Malice in its legal sense means malice such
as may be assumed from the doing of a
wrongful act intentionally but without just
cause or excuse, or for want of reasonable
or probable cause. See S. R. Venkataraman v.
Union of India, (1979) 2 SCC 491.

43. Hon‟ble Supreme Court in Kalabharati Advertising Vs. Hemant

Vimalnath Narichania And Ors.(2010) 9 SCC 437had ruled as
under;
A. Legal Malice: The State is under
obligation to act fairly without ill will or
malice in fact or in law. "Legal malice" or
"malice in law" means something done
without lawful excuse. It is an act done
wrongfully and wilfully without reasonable
or probable cause, and not necessarily an
act done from ill feeling and spite. It is a
deliberate act in disregard to the rights of
90
 others. Where malice is attributed to the State,
it can never be a case of personal ill-will or spite
on the part of the State. It is an act which is
taken with an oblique or indirect object. It
means exercise of statutory power for "purposes
foreign to those for which it is in law intended."
It means conscious violation of the law to
the prejudice of another, a depraved
inclination on the part of the authority to
disregard the rights of others, which intent
is manifested by its injurious acts. Passing
an order for an unauthorized purpose
constitutes malice in law.
# CHARGE # BREACH OF OATH TAKEN AS A HON‟BLE HIGH
COURT JUDGE BY ACTING PARTIALLY, WITH ILL-WILL AND
NOT UPHOLDING THE CONSTITUTION AND LAW.

44. In Indirect Tax Association Vs. R.K.Jain (Supra),it is

ruled by Hon‟ble Supreme Court that;

―Judge have their accountability to the society

and their accountability must be judged by their
conscience and oath of their office, that is to
defend and uphold the Constitution and the laws
without fear and favor with malice towards
none, with charity for all, we strive to do the
right.‖
45. EVERY JUDGE WHEN APPOINTED HAS TO
TAKE OATH AS UNDER;

The constitution of India Schedule III Articles 75 (4),

99, 124 (6) 148 (2) 164 (3), 188 and 219 provides that
forms of oaths or Affirmation No. VIII is as follows.
― Form of oath or a affirmation to be made
by the Judges of a Supreme Court.‖
I, A.B., having been appointed Chief Justice (or a
Judge) of the Supreme Court at (or of) ----------
------- do that I will bear true faith and

91
 allegiance to the Constitution of India as by law
established, [that I will uphold the sovereignty
and integrity of India] that, I will duly and
faithfully and to the best of my ability,
Knowledge and judgement perform the
duties of my office without fear or
favour, affection or ill-will and that I will
uphold the Constitution and the laws.
Here Justice Akil Kureshi & Justice Shahrukh Kathawala acted against
Constitution of India and breached the oath taken as a High Court
Judge and therefore forfeited their right to continue as a High Court
Judge.
# CHARGE # JUSTICE AKIL KURESHI & JUSTICE SHAHRUKH
KATHAWALLA ARE BOUND TO RESIGN FROM THE POST OF
SUPREME COURT JUDGE AS PER CONSTITUTION BENCH
JUDGMENT IN K.VEERASWAMI VS.UNION OF INDIA (1991) 3
SCC 655
It is ruled as under;
`(53) …… The judiciary has no power of the
purse or the sword. It survives only by
public confidence and it is important to the
stability of the society that the confidence
of the public is not shaken. The Judge
whose character is clouded and whose
standards of morality and rectitude are in
doubt may not have the judicial
independence and may not command
confidence of the public. He must
voluntarily withdraw from the judicial work
and administration.
(54) …….. The emphasis on this point should not
appear superfluous. Prof. Jackson says
"Misbehavior by a Judge, whether it takes place
on the bench or off the bench, undermines public
confidence in the administration of justice, and
also damages public respect for the law of the
land; if nothing is seen to be done about it, the

92
damage goes unrepaired. This a must be so
when the judge commits a serious criminal
offence and remains in office". (Jackson's
Machinery of Justice by J.R. Spencer, 8th Edn.
pp. 369-

(55) The proved "misbehaviour" which is the

basis for removal of a Judge under clause (4) of
Article 124 of the Constitution may also in
certain cases involve an offence of criminal
misconduct under Section 5(1) of the Act. But
that is no ground for withholding criminal
prosecution till the Judge is removed by
Parliament as suggested by counsel for the
appellant. One is the power of Parliament and
the other is the jurisdiction of a criminal court.
Both are mutually exclusive. Even a government
servant who is answerable for his misconduct
which may also constitute an offence under the
Indian Penal Code or under S. 5 of the Act is
liable to be prosecuted in addition to a
departmental enquiry. If prosecuted in a criminal
court he may be punished by way of
imprisonment or fine or with both but in
departmental enquiry, the highest penalty that
could be imposed on him is dismissal. The
competent authority may either allow the
prosecution to go on in a court of law or subject
him to a departmental enquiry or subject him to
both concurrently or consecutively. It is not
objectionable to initiate criminal proceedings
against public servant before exhausting the
disciplinary proceedings, and a fortiori, the
prosecution of a Judge for criminal misconduct
before his removal by Parliament for proved
misbehaviour is unobjectionable.
“……….But we know of no law providing

93
protection for Judges from criminal prosecution.
Article 361(2) confers immunity from criminal
prosecution only to the President and Governors
of States and to no others. Even that immunity
has been limited during their term of office. The
Judges are liable to be dealt with just the
same way as any other person in respect of
criminal offence. It is only in taking of
bribes or with regard to the offence of
corruption the sanction for criminal
prosecution is required.
(61) For the reasons which we have endeavored
to outline and subject to the directions issued,
we hold that for the purpose of clause (c) of S.
6(1 of the Act the President of India is the
authority competent to give previous sanction for
the prosecution of a Judge of the Supreme court
and of the High court.
(79) Before parting with the case, we may say a
word more. This case has given us much
concern. We gave our fullest consideration to the
questions raised. We have examined and re-
examined the questions before reaching the
conclusion. We consider that the society's
demand for honesty in a judge is exacting and
absolute. The standards of judicial
behaviour, both, on and off the bench, are
normally extremely high. For a Judge to
deviate from such standards of honesty and
impartiality is to betray the trust reposed in
him. No excuse or no legal relativity can
condone such betrayal. From the standpoint of
justice the size of the bribe or scope of
corruption cannot be the scale for measuring a
Judge's dishonour. A single dishonest Judge
not only dishonours himself and disgraces
his office but jeopardizes the integrity of

94
 the entire judicial system.
(80) A judicial scandal has always been regarded
as far more deplorable than a scandal involving
either the executive or a member of the
legislature. The slightest hint of irregularity or
impropriety in the court is a cause for great
anxiety and alarm. "A legislator or an
administrator may be found guilty of corruption
without apparently endangering the foundation
of the State. But a Judge must keep himself
absolutely above suspicion" to preserve the
impartiality and independence of the judiciary
and to have the public confidence thereof.
Let us take a case where there is a positive
finding recorded in such a proceeding that
the Judge was habitually accepting bribe,
and on that ground he is removed from his
office. On the argument of Mr Sibal, the
matter will have to be closed with his
removal and he will escape the criminal
liability and even the ill-gotten money
would not be confiscated. Let us consider
another situation where an abettor is found
guilty under S. 165-A of the Indian Penal
Code and is convicted. The main culprit, the
Judge, shall escape on the argument of the
appellant. In a civilized society the law
cannot be assumed to be leading to such
disturbing results.
46. While delivering 2ndlecture on M.C. Setalvad Memorial
Lecture Series sometime in the year 2006, the Hon‟ble Mr.
Justice Y.K.Sabharwal (the then CJI) expressed that –

―A Judge would always be polite & considerate

and imbued with a sense of humility. He would
not disturb the submissions of the lawyers
midway only to project a ―know-all‖ image for
himself. This also means that he would be sitting
95
 with an open mind, eager to be advised by the
counsel or the parties.”

47. On the point of predictability of the outcome of a case and

transparency in the judiciary, the reputed and well-known
learned authors and legal experts of Bangladesh in “The
Desired Qualities of a Good Judge”,have expressed thus:

―In all acts of judgment, the Judges should

be transparent so that not only the lawyers
but also the litigants can easily predict the
outcome of a case. Transparency and
predictability are essential for the judiciary
as an institution of public credibility.‖
In “A.M. Mathur vs. Pramod Kumar Gupta;
(1990) 2 SCC 533”, it was held that –the
quality in decision making is as much
necessary for judges to command respect
as to protect the independence of the
judiciary.
Other qualities of a good judge have been
described by the said authors as under:
(i) A judge is a pillar of our entire justice
system and the public expects highest and
irreproachable conduct from anyone
performing a judicial function.
(ii) Judgesmust be knowledgeable about
the law, willing to undertake in-depth legal
research, and able to write decisions that
are clear, logical and cogent. Their
judgment should be sound and they should
be able to make informed decisions that
will stand up to close scrutiny.
(iii) Centuries ago Justinian said that precepts
of law are three in number i.e. to live honestly,
to give every man his due and to injure none.
(iv) Judiciary as an organ of the state has
to administer fair justice according to the
96
direction of the Constitution and the
mandate of law.
(v) Every judge is a role model to the society
to which he belongs. The same are embodied in
all the religious scriptures. Socrates once
stated that a judge must listen courteously,
answer wisely, considers soberly and
decides impartially.
(vi) The qualities of a good judge include
patience, wisdom, courage, firmness, alertness,
incorruptibility and the gifts of sympathy and
insight. In a democracy, a judge is accorded
great respect by the state as well as its citizens.
He is not only permitted to assert his freedom
and impartiality but also expected to use all his
forensic skill to protect the rights of the
individual against arbitrariness.
(vii) Simon Rifkind laid down ―The
courtroom, sooner or later, becomes the
image of the judge. It will rise or fall to the
level of the judge who presides over it… No
one can doubt that to sit in the presence of
a truly great judge is one of the great and
moving experiences of a lifetime.‖
(viii) There is no alternative of qualified and
qualitative judges who religiously follow the rule
of law and administer good governance.
(ix) The social service, which the Judge
renders to the community, is the removal of
a sense of injustice.
(x) Judiciary handled by legal person is
the custodian of life and property of the
people at large, and so the pivotal and central
role as played by the judicial officers should
endowed higher degree of qualities in
consonance with the principles of “standard of
care”, “duty of care” and “reasonable person” as

97
necessary with judicial functionaries.
(xi) The American Bar Association once
published an article called Good Trial
Judges in which it discussed the difference
in the qualities of a good judge and a bad
judge and noted that practicing before a
"good judge is a real pleasure," and
"practicing before a bad judge is misery.
(xii) The Judges exercise the judicial power
on trust. Normally when one sits in the seat
of justice,he is expected to be honest,
trustworthy, truthful and a highly
responsible person. The public perception
of a Judge is very important. Marshal, Chief
Justice of the United States Supreme Court
said, ―we must never forget that the only
real source of power we as judges can tap
is the respect of the people. It is undeniable
that the Courts are acting for the people
who have reposed confidence in them.‖
That is why Lord Denning said, ―Justice is
rooted in confidence, and confidence is
destroyed when the right-minded go away
thinking that the Judge is biased‖.
(xiii) A Judge ought to be wise enough to know
that he is fallible and therefore, ever ready to
learn; great and honest enough to discard all
mere pride of opinion, and follow truth wherever
it may lead, and courageous enough to
acknowledge his errors.
(xiv) Judge ought to be more learned than
witty, more reverend than plausible and more
advised than confident. Above all things,
integrity is their portion and proper virtue.
Moreover, patience and gravity of hearing is also
an essential part of justice, and an over speaking
Judge is known as well tuned cymbal.

98
(xv) It is the duty of the Judges to follow
the law,as they cannot do anything
whatever they like. In the language of
Benjamin N. Cardozo – “The Judge even when
he is free, is still not wholly free. He is not to
innovate at pleasure. He is not a knight-errant,
roaming at will in pursuit of his own ideal of
beauty or of goodness. He is to draw his
inspiration from consecrated principles”.
(xvi) Judges should be knowledgeable
about the law, willing to undertake in-depth
legal research, and able to write decisions
that are clear and cogent.
(xvii) If a Judge leaves the law and makes
his own decisions, even if in substance they
are just, he loses the protection of the law
and sacrifices the appearance of
impartiality which is given by adherence to
the law.
(xviii) A Judge has to be not only impartial
but seen to be impartial too.
(xix) Every judge is a role model to the society
to which he belongs. The judges are certainly,
accountable but they are accountable to their
conscience and people‟s confidence. As observed
by Lord Atkin – “Justice is not a cloistered virtue
and she must be allowed to suffer the criticism
and respectful, though outspoken, comments of
ordinary men”.
(xx) With regard to the accountability of
the Judges of the subordinate Courts and
Tribunals it may be mentioned that the
Constitution authorizes the High Court
Division to use full power of
superintendence and control over
subordinate Courts and Tribunals. Under
the Constitution, a guideline in the nature

99
 of Code of Conduct can be formulated for
the Judges of the subordinate courts for the
effective control and supervision of the
High Courts Division. In this method, the
judicial accountability of the Judges of the
subordinate courts could be ensured.

48. In Baradakanta Mishra Ex-Commissioner of

Endowments Vs. Bhimsen Dixit, (1973) 1 SCC 446, a
member of Judicial Service of State of Orissa refused to follow
the decision of the High Court. The High Court issued a notice of
contempt to the appellant and thereafter held him guilty of
contempt which was challenged before the Supreme Court. The
Supreme Court held as under:-

"15. The conduct of the appellant in not

following previous decisions of the High
Court is calculated to create confusion in
the administration of law. It will undermine
respect for law laid down by the High Court
and impair the constitutional authority of
the High Court. His conduct is therefore
comprehended by the principles underlying
the law of Contempt. The analogy of the
inferior court‟s disobedience to the specific
order of a superior court also suggests that
his conduct falls within the purview of the
law of Contempt. Just as the disobedience
to a specific order of the Court undermines
the authority and dignity of the court in a
particular case, similarly the deliberate and
mala fide conduct of not following the law
laid down in the previous decision
undermines the constitutional authority and
respect of the High Court.Indeed, while the
former conduct has repercussions on an
individual case and on a limited number of
persons, the latter conduct has a much
100
 wider and more disastrous impact. It is
calculated not only to undermine the
constitutional authority and respect of the
High Court, generally, but is also likely to
subvert the Rule of Law and engender
harassing uncertainty and confusion in the
administration of law".

49. In Amrit Pal Singh Vs. State (2012) 6 SCC 491, it is ruled
that;
―20. Every judge has to remind himself about
the aforesaid principles and religiously adhere to
them. In this regard it would not be out of place
to sit in the time machine and dwell upon the
sagacious saying of an eminent author who has
said that there is a distinction between a
man who has command over ‗Shastras‘ and
the other who knows it and puts into
practice. He who practises them can alone
be called a ‗vidvan‘. Though it was told in a
different context yet the said principle can be
taken recourse to, for one may know or be
aware of that use of intemperate language
should be avoided in judgments but while
penning the same the control over the language
is forgotten and acquired knowledge is not
applied to the arena of practice. Or to put it
differently the knowledge stands still and not
verbalised into action. Therefore, a committed
comprehensive endeavour has to be made to put
the concept to practice so that it is concretised
and fructified and the litigations of the present
nature are avoided.”
50. In Iswari Prasad Mishra Vs Modh. Isa AIR 1963 SC
1728, where it is ruled as under;

“The Supreme Court observed that such criticism

was wholly unjustified, and added: “We have
101
 noticed that the judgment of the High Court
shows a tendency to regard every witness whose
evidence the High Court did not feel inclined to
accept as a perjuror and a conspirator. This
approach again may tend to show, with
respect, either lack of experience or
absence of judicial poise and balance.‖
Same law is followed in catena of decisions. In Om Prakash
Chautala v. Kanwar Bhan MANU/SC/0075/2014 : (2014) 5
SCC 417wherein it has been stated:
―A Judge is expected to abandon his
personal notion or impression gathered
from subjective experience. The process of
adjudication lays emphasis on the wise
scrutiny of materials sans emotions. A
studied analysis of facts and evidence is a
categorical imperative. Deviation from them
is likely to increase the individual
gravitational pull which has the potentiality
to take justice to her coffin.
19. It needs no special emphasis to state that a
Judge is not to be guided by any kind of notion.
The decision making process expects a Judge or
an adjudicator to apply restraint, ostracise
perceptual subjectivity, make one's emotions
subservient to one's reasoning and think
dispassionately. He is expected to be guided by
the established norms of judicial process and
decorum.
And again:
20. A Judge should abandon his passion. He
must constantly remind himself that he has
a singular master "duty to truth" and such
truth is to be arrived at within the legal
parameters. No heroism, no rhetorics.
14. InDwarikesh Sugar Industries Ltd. v.
Prem Heavy Engineering Works (P) Ltd. and

102
 Anr. MANU/SC/0639/1997 : (1997) 6 SCC
450, the threeJudge Bench observed:
32. When a position in law is well settled as a
result of judicial pronouncement of this Court, it
would amount to judicial impropriety to say the
least, for the subordinate courts including the
High Courts to ignore the settled decisions and
then to pass a judicial order which is clearly
contrary to the settled legal position. Such
judicial adventurism cannot be permitted and we
strongly deprecate the tendency of the
subordinate courts in not applying the settled
principles and in passing whimsical orders which
necessarily has the effect of granting wrongful
and unwarranted relief to one of the parties. It is
time that this tendency stops.
15. The aforestated thoughts are not only
meaningfully pregnant but also expressively
penetrating. They clearly expound the role of a
Judge, especially the effort of understanding and
attitude of judging.”
51. Hon‟ble Supreme Court in the case of State Vs. Mamta
Mohandas (2011) 3 SCC 436, it is ruled as under;
―A. It is a settled legal proposition that if an
order is bad in its inception, it does not get
sanctified at a later stage. A subsequent
action/development cannot validate an action
which was not lawful at its inception, for the
reason that the illegality strikes at the root of the
order. It would be beyond the competence of
any authority to validate such an order. It would
be ironic to permit a person to rely upon a law,
in violation of which he has obtained the
benefits. If an order at the initial stage is bad in
law, then all further proceedings consequent
thereto will be non est and have to be
necessarily set aside. A right in law exists only

103
and only when it has a lawful origin. (vide: Upen
Chandra Gogoi v. State of Assam and Ors.
MANU/SC/0225/1998 : AIR 1998 SC 1289;
Mangal Prasad Tamoli (Dead) by L.Rs. v.
Narvadeshwar Mishra (Dead) by L.Rs. and Ors.
MANU/SC/0153/2005 : AIR 2005 SC 1964; and
Ritesh Tiwari and Anr. v. State of U.P.
B. This principle also applies to judicial
pronouncements. Once the court comes to the
conclusion that a wrong order has been passed,
it becomes the solemn duty of the court to
rectify the mistake rather than perpetuate the
same. While dealing with a similar issue
C. The rule of law inhibits arbitrary action and
also makes it liable to be invalidated. Every
action of the State or its instrumentalities should
not only be fair, legitimate and above-board but
should be without any affection or aversion. It
should neither be suggestive of discrimination
nor even give an impression of bias, favouritism
and nepotism. Procedural fairness is an implied
mandatory requirement to protect against
arbitrary action where Statute confers wide
power coupled with wide discretion on an
authority. If the procedure adopted by an
authority offends the fundamental fairness or
established ethos or shocks the conscience, the
order stands vitiated. The decision making
process remains bad. (Vide Haji T.M. Hassan
Rawther v. Kerala Financial Corporation
MANU/SC/0516/1987 : AIR 1988 SC 157; Dr.
Rash Lal Yadav v. State of Bihar and Ors.
MANU/SC/0792/1994 : (1994) 5 SCC 267; and
Tata Cellular v. Union of India
MANU/SC/0002/1996 : (1994) 6 SCC 651
D. Similarly, in S.G. Jaisinghani v. Union of India
and Ors. MANU/SC/0361/1967 : AIR 1967 SC

104
1427, a Constitution Bench of this Court
observed as under:
14...absence of arbitrary power is the first
essence of the rule of law, upon which our whole
Constitutional system is based.... Rule of law,
from this point of view, means that the decision
should be made by the application of known
principle and rules and in general such decision
should be predictable and the citizen should
know where he is, if a decision is taken without
any principle or without any rule, it is
unpredictable and such a decision is antithesis to
the decision taken in accordance with the rule of
law.
41.. It is a matter of common experience that a
large number of orders/letters/circulars, issued
by the State/statutory authorities, are filed in
court for placing reliance and acting upon it.
However, some of them are definitely found to
be not in conformity with law. There may be
certain such orders/circulars which are violative
of the mandatory provisions of the Constitution
of India. While dealing with such a situation, this
Court in Ram Ganesh Tripathi and Ors. v. State
of U.P. and Ors. MANU/SC/0341/1997 : AIR
1997 SC 1446 came across with an illegal order
passed by the statutory authority violating the
provisions of Articles 14 and 16 of the
Constitution. This Court simply brushed aside the
same without placing any reliance on it
observing as under: d
The said order was not challenged in the writ
petition as it had not come to the notice of the
appellants. It has been filed in this Court along
with the counter affidavit.... This order is also
deserved to be quashed as it is not consistent
with the statutory rules. It appears to have been

105
 passed by the Government to oblige the
respondents...
43. The whole exercise done by the State
authorities suffers from the vice of arbitrariness
and thus is violative of Article 14 of the
Constitution. Therefore, it cannot be given effect
to.”
52. Full Bench Hon‟ble Supreme Court in the case of National
Human Rights Commission Vs State MANU/2009/SC/
0713 ruled as under;

“In Zahira Habibullah Sheikh (5) and Anr.v.

State of Gujarat and Ors. MANU/SC/1344/2006:
2006CriLJ1694 it was observed as under:

If the court acts contrary to the role it is

expected to play, it will be destruction of
the fundamental edifice on which the
justice delivery system stands. People for
whose benefit the courts exist shall start
doubting the efficacy of the system.
"Justice must be rooted in confidence; and
confidence is destroyed when right-minded
people go away thinking: `The Judge was
biased.

The perception may be wrong about the Judge's

bias, but the Judge concerned must be careful to
see that no such impression gains ground.
Judges like Caesar's wife should be above
suspicion.

A criminal trial is a judicial examination of the

issues in the case and its purpose is to arrive at
a judgment on an issue as to a fact or relevant
facts which may lead to the discovery of the fact
in issue and obtain proof of such facts at which
the prosecution and the accused have arrived by
their pleadings; the controlling question being
106
the guilt or innocence of the accused. Since the
object is to mete out justice and to convict
the guilty and protect the innocent, the trial
should be a search for the truth and not a
bout over technicalities, and must be
conducted under such rules as will protect
the innocent, and punish the guilty. The
proof of charge which has to be beyond
reasonable doubt must depend upon
judicial evaluation of the totality of the
evidence, oral and circumstantial, and not
by an isolated scrutiny.

Failure to accord fair hearing either to the

accused or the prosecution violates even
minimum standards of due process of law.
It is inherent in the concept of due process
of law, that condemnation should be
rendered only after the trial in which the
hearing is a real one, not sham or a mere
farce and pretence. Since the fair hearing
requires an opportunity to preserve the
process, it may be vitiated and violated by
an over hasty stage- managed, tailored and
partisan trial.

The fair trial for a criminal offence consists not

only in technical observance of the frame, and
forms of law, but also in recognition and just
application of its principles in substance, to find
out the truth and prevent miscarriage of justice.

It was significantly said that law, to be just and

fair has to be seen devoid of flaw. It has to keep
the promise to justice and it cannot stay petrified
and sit nonchalantly. 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 (see

107
Jennison v. Baker). Increasingly, people are
believing as observed by Salmon quoted by
Diogenes Laertius in Lives of the Philosophers,
"Laws are like spiders' webs: if some light or
powerless thing falls into them, it is caught, but
a bigger one can break through and get away."
Jonathan Swift, in his "Essay on the Faculties of
the Mind" said in similar lines: "Laws are like
cobwebs, which may catch small flies, but let
wasps and hornets break through.

Right from the inception of the judicial system it

has been accepted that discovery, vindication
and establishment of truth are the main
purposes underlying the existence of the courts
of justice. The operative principles for a fair trial
permeate the common law in both civil and
criminal contexts. Application of these principles
involves a delicate judicial balancing of
competing interests in a criminal trial: the
interests of the accused and the public and to a
great extent that of the victim have to be
weighed not losing sight of the public interest
involved in the prosecution of persons who
commit offences.

"Too great a price ... for truth".

Restraints on the processes for determining the

truth are multifaceted. They have emerged in
numerous different ways, at different times and
affect different areas of the conduct of legal
proceedings. By the traditional common law
method of induction there has emerged in our
jurisprudence the principle of a fair trial. Oliver
Wendell Holmes described the process:

It is the merit of the common law that it decides

the case first and determines the principles
108
afterwards.... It is only after a series of
determination on the same subject-matter, that
it becomes necessary to `reconcile the cases', as
it is called, that is, by a true induction to state
the principle which has until then been obscurely
felt. And this statement is often modified more
than once by new decisions before the
abstracted general rule takes its final shape. A
well-settled legal doctrine embodies the work of
many minds, and has been tested in form as well
as substance by trained critics whose practical
interest is to resist it at every step.

The principle of fair trial now informs and

energises many areas of the law. It is reflected
in numerous rules and practices. It is a constant,
ongoing development process continually
adapted to new changing circumstances, and
exigencies of the situation--peculiar at times and
related to the nature of crime, persons involved-
-directly or operating behind, social impact and
societal needs and even so many powerful
balancing factors which may come in the way of
administration of criminal justice system.

This Court has often emphasised that in a

criminal case the fate of the proceedings cannot
always be left entirely in the hands of the
parties, crime being public wrong in breach and
violation of public rights and duties, which
affects the whole community as a community
and is harmful to society in general. The concept
of fair trial entails familiar triangulation of
interests of the accused, the victim and the
society and it is the community that acts through
the State and prosecuting agencies. Interest of
society is not to be treated completely with
disdain and as persona non grata. The courts
109
have always been considered to have an
overriding duty to maintain public confidence in
the administration of justice--often referred to as
the duty to vindicate and uphold the "majesty of
the law". Due administration of justice has
always been viewed as a continuous process, not
confined to determination of the particular case,
protecting its ability to function as a court of law
in the future as in the case before it. If a criminal
court is to be an effective instrument in
dispensing justice, the Presiding Judge must
cease to be a spectator and a mere recording
machine by becoming a participant in the trial
evincing intelligence, active interest and elicit all
relevant materials necessary for reaching the
correct conclusion, to find out the truth, and
administer justice with fairness and impartiality
both to the parties and to the community it
serves. The courts administering criminal justice
cannot turn a blind eye to vexatious or
oppressive conduct that has occurred in relation
to proceedings, even if a fair trial is still possible,
except at the risk of undermining the fair name
and standing of the judges as impartial and
independent adjudicators.

The principles of rule of law and due process are

closely linked with human rights protection. Such
rights can be protected effectively when a citizen
has recourse to the courts of law. It has to be
unmistakably understood that a trial which is
primarily aimed at ascertaining the truth has to
be fair to all concerned. There can be no
analytical, all comprehensive or exhaustive
definition of the concept of a fair trial, and it may
have to be determined in seemingly infinite
variety of actual situations with the ultimate

110
 object in mind viz. whether something that was
done or said either before or at the trial deprived
the quality of fairness to a degree where a
miscarriage of justice has resulted.”

53. JUDICIAL BIAS IS A GROUND TO DISMISS THE JUDGE

:- With this context the operative portion of the Federal
Court‟s Report to the Governor-General is being given
below:

“Charge No. 1, however, has been established in

respect of the Judge‟s decision and conduct in
connection with what have been referred to as the
Padrauna case and Murarilal case. In our opinion, in
those two cases he was actuated by extrajudicial
considerations in arriving at his conclusions. We
consider that his conduct in the two cases,
viewed in the light of proved facts, cannot be
explained as an honest error of judgment. We
are, therefore, constrained to report that,
though only two instances of judicial
misbehaviour during a career of four years of
the respondent as a Judge have been proved,
they are of such a nature that his continuance in
office will be prejudicial to the administration of
justice and to the public interest. We, therefore,
think that he should be removed from his office
as Judge. ―
The above case is also illustrative of the scope of judicial bias and
judicial misbehaviour.
[Dharamdas Motumal Rajpal Vs. Resident Dy., Collector,
Amrawati (1997) 2 Mh.L.J.803]

54. Hon‟ble Supreme Court in Medical Council of India Vs

G.C.R.G. Memorial Trust & Others (2018) 12 SCC 564 has
ruled as under:

―The judicial propriety requires judicial

discipline. Judge cannot think in terms of
111
"what pleases the Prince has the force of
law". Frankly speaking, the law does not
allow so, for law has to be observed by
requisite respect for law.
A Judge should abandon his passion. He
must constantly remind himself that he has
a singular master "duty to truth" and such
truth is to be arrived at within the legal
parameters. No heroism, no rhetorics.
A Judge even when he is free, is still not
wholly free; he is not to innovate at
pleasure; he is not a knighterrant roaming
at will in pursuit of his own ideal of beauty
or of goodness; he is to draw inspiration
from consecrated principles
10. In this context, we may note the eloquent
statement of Benjamin Cardozo who said:
The judge is not a knight errant, roaming at will
in pursuit of his own ideal of beauty and
goodness.
11. In this regard, the profound statement of
Felix Frankfurter1 is apposite to reproduce:
For the highest exercise of judicial duty is to
subordinate one's personal pulls and one's
private views to the law of which we are all
guardians-those impersonal convictions that
make a society a civilized community, and not
the victims of personal rule.
The learned Judge has further stated:
What becomes decisive to a Justice's functioning
on the Court in the large area within which his
individuality moves is his general attitude toward
law, the habits of the mind that he has formed
or is capable of unforming, his capacity for
detachment, his temperament or training for
putting his passion behind his judgment instead
of in front of it. The attitudes and qualities which

112
I am groping to characterize are ingredients of
what compendiously might be called dominating
humility.
13. In this context, we may refer with profit the
authority in Om Prakash Chautala v. Kanwar
Bhan MANU/SC/0075/2014 : (2014) 5 SCC
417 wherein it has been stated:
19. It needs no special emphasis to state that a
Judge is not to be guided by any kind of notion.
The decision making process expects a Judge or
an adjudicator to apply restraint, ostracise
perceptual subjectivity, make one's emotions
subservient to one's reasoning and think
dispassionately. He is expected to be guided by
the established norms of judicial process and
decorum.
And again:
20. A Judge should abandon his passion. He
must constantly remind himself that he has
a singular master "duty to truth" and such
truth is to be arrived at within the legal
parameters. No heroism, no rhetorics.
14. In Dwarikesh Sugar Industries Ltd. v.
Prem Heavy Engineering Works (P) Ltd. and
Anr. MANU/SC/0639/1997 : (1997) 6 SCC
450, the threeJudge Bench observed:
32. When a position in law is well settled as a
result of judicial pronouncement of this Court, it
would amount to judicial impropriety to say the
least, for the subordinate courts including the
High Courts to ignore the settled decisions and
then to pass a judicial order which is clearly
contrary to the settled legal position. Such
judicial adventurism cannot be permitted and we
strongly deprecate the tendency of the
subordinate courts in not applying the settled
principles and in passing whimsical orders which

113
 necessarily has the effect of granting wrongful
and unwarranted relief to one of the parties. It is
time that this tendency stops.
15. The aforestated thoughts are not only
meaningfully pregnant but also expressively
penetrating. They clearly expound the role of a
Judge, especially the effort of understanding and
attitude of judging. A Judge is expected to
abandon his personal notion or impression
gathered from subjective experience. The
process of adjudication lays emphasis on
the wise scrutiny of materials sans
emotions. A studied analysis of facts and
evidence is a categorical imperative.
Deviation from them is likely to increase
the individual gravitational pull which has
the potentiality to take justice to her coffin.

55. In Baradakanta Mishra Ex-Commissioner of

Endowments Vs. Bhimsen Dixit, (1973) 1 SCC 446, a
member of Judicial Service of State of Orissa refused to follow
the decision of the High Court. The High Court issued a notice of
Contempt to the appellant and thereafter held him guilty of
contempt which was challenged before the Supreme Court. The
Supreme Court held as under:-

"15. The conduct of the appellant in not following

previous decisions of the High Court is
calculated to create confusion in the
administration of law. It will undermine respect
for law laid down by the High Court and impair
the constitutional authority of the High Court.
His conduct is therefore comprehended by the
principles underlying the law of Contempt. The
analogy of the inferior court‟s disobedience to
the specific order of a superior court also
suggests that his conduct falls within the
purview of the law of Contempt. Just as the
114
 disobedience to a specific order of the Court
undermines the authority and dignity of the
court in a particular case, similarly the
deliberate and mala fide conduct of not following
the law laid down in the previous decision
undermines the constitutional authority and
respect of the High Court.Indeed, while the
former conduct has repercussions on an
individual case and on a limited number of
persons, the latter conduct has a much wider
and more disastrous impact. It is calculated not
only to undermine the constitutional authority
and respect of the High Court, generally, but is
also likely to subvert the Rule of Law and
engender harassing uncertainty and confusion in
the administration of law".
56. Hon‟ble Supreme Court in the case of Arvinder Singh Bagga Vs.
State of Uttar Pradesh (1994)6 SCC 565 where it is ruled as
under;
―A] Police Torture – Torture is not
merely physical, there may be mental
torture and psychological torture calculated
to create fright and submission to the
demands or commands - When the threat
proceeds from a police officer the mental
torture caused by it is even more grave.
B] Physical and mental torture by Police
– Supreme Court observedthat – We are
really pained to note that such things should
happen in a country which is still governed by
the rule of law – State directed to launch
criminal prosecution against all the Police officers
involved in this sordid affairs – The state shall
pay a compensation of Rs. 10.000/- to Nidhi, Rs.
10,000/- to Charanjit Singh and Rs, 5,000/- to
each of the other persons who were illegally
detained and humiliated by police – It will be

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 open for state to recover the amount from guilty
Police Officer.”

57. In Authorized Officer, State Bank of Travancore and Ors. Vs.

Mathew K.C. 2018 (3) SCC 85 it is ruled as under

―JUDICIAL ADVENTURISM BY HIGH COURT

– PASSING ORDER BY IGNORING LAW
SETTLED BY COURT.

It is duty of the court to apply the correct

law even if not raised by the party. If any
order against settled law is to be passed
then it can be done only by a reasoned
order. Containing a discussion after
noticing he relevant law settled.

16. It is the solemn duty of the Court to

apply the correct law without waiting for an
objection to be raised by a party, especially
when the law stands well settled. Any
departure, if permissible, has to be for
reasons discussed, of the case falling under
a defined exception, duly discussed after
noticing the relevant law. In financial
matters grant of ex-parte interim orders
can have a deleterious effect and it is not
sufficient to say that the aggrieved has the
remedy to move for vacating the interim
order.

18. We cannot help but disapprove the

approach of the High Court for reasons
already noticed in Dwarikesh Sugar
Industries Ltd. v. Prem Heavy Engineering
Works (P) Ltd. and Anr.
MANU/SC/0639/1997 : 1997 (6) SCC 450,
observing:
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 32. When a position, in law, is well settled
as a result of judicial pronouncement of this
Court, it would amount to judicial
impropriety to say the least, for the
subordinate courts including the High
Courts to ignore the settled decisions and
then to pass a judicial order which is clearly
contrary to the settled legal position. Such
judicial adventurism cannot be permitted
and we strongly deprecate the tendency of
the subordinate courts in not applying the
settled principles and in passing whimsical
orders which necessarily has the effect of
granting wrongful and unwarranted relief
to one of the parties. It is time that this
tendency stops.‖

58. In view of the outright injudicious conduct of Justices Akil Kuershi

and Shahrukh Kathawala the legal fraternity as well as the commoners
are anxious to know on whose instructions the Hon‟ble Justices are
conducting themselves which is bound to shake the faith in judiciary as
being power drunk extortionists – such anti nationals ought to be
exposed, thus an appropriate inquiry by the NIA or CBI is imperative
to unravel the unholy nexus.

59. It is humbly request that ;

1. Direction for initiating disciplinary proceedings

against Justice Akil Kureshi for bringing
disrepute to the institution of Judiciary in
conjunction with Adv. Yatin Oza in loathly
deriding Hon‟ble Supreme Court Collegium
members as impotent, in order to pressurize
them to seek his elevation as Chief Justice of MP
High Court.
2. Direction for action under Contempt of Courts
Act as per law laid down in Re: C. S. Karnan

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 (2017) 7 SCC 1 against Justice Akil Kureshi &
Justice S.J.Kathawalla for their willful disregard
and defiance of Hon‟ble Supreme Court rulings.
3. Action under section 218,219 166, 220 r/w
120(B) & 34 etc. of IPC against Justice Akil
Kureshi.
4. Direction to Justice Akil Kureshi & Justice
Shahrukh Kathawala to resign forthwith in view
of law and guidelines of K. Veeraswami Vs.
Union of India (UOI) 1991 (3) SCC 655.
5. Direction for forming a committee as per
provisions of „In House Procedure‟ and as per
law laid down by Full Bench in Union of
India Vs. K. K. Dhawan (1993) 2 SCC 56
(Full Bench) to enquire serious charges against
Justice Akil Kureshi & Justice S.J.Kathawala for
their incompetence, lack of basic knowledge of
law, passing casual orders, passing orders
against the law laid down by Hon‟ble Supreme
Court and by their own High Court.

Date:29.06.2019
Place : Mumbai

Adv.Vijay S.Kurle
State President
Maharashtra & Goa
Indian Bar Association (IBA)

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