1 To, Hon’ble President of India Applicant:- Sonika Krantiveer Spokesperson Organisation of Jurists for Humanity Awareness 001 Maria Apt., Plot No. E-78/3, Sector – 9, Airoli, Navi Mumbai – 400708. SUBJECT: i) Direction to C.B.I. for taking action against Justice RanjanGogoi, Justice Prafulla C. Pant & Justice Uday U. Lalit. under sec.166, 218, 219 r/w 120(B) & 34 of I.P.C. for acting contrary to law , and law laid by by Hon’ble Supreme Court in Devender Singh Bhullar’s case reported at 2011 [14] SCC 770, and hearing the case where they were disqualified to hear the case as personal allegation were made against themself. And also misusing the power by issuing contempt notice to Justice MarkandeyaKatju on 11th Nov 2016. OR Granting sanction to applicant to launch prosecution against the three judges in view 2 of sec.197of Cr. P.C, and Judicial officer Protection act etc. ii) Direction to appropriate authority Advocate General of India and others to initiate appropriate proceeding under contempt of courts Acts against the above said three judges, as prosecution of offender is obligation of the Govt. Direction to appropriate authority to place the matter before Chief Justice of India in view of “In House Procedure” with a request to not to assign any work to the above said judges, till the completion of enquiry against them . iv Removal of Justice Ranjan Gogoi, Justice Prafulla C. Pant, Justice Uday U. Lalit for their proved incapacity to understand and follow the law, misbehavior and criminal offences committed by them and contempt of Hon’ble Supreme Court by them. v Direction to Justice Ranjan Gogoi, Justice Prafulla C. Pant, Justice Uday U. Lalit to 3 Resign from his Post as per Point No. 7(i) of In House Procedure and also in view of the mandatory Guidelines of Hon. Supreme Court in the Veerswami’s Case (1991) 3 SCC 655( Constitution Bench), as the Misconduct, Criminal offences and Incapacity of Justices is proved ex facie. vi Recovering of all the amount/ payments, salary taken by these incompetent judges. vi Direction for registering a Case under sec.409 of I.P.C. for misappropriation of public funds for settling their personal scores. Hon’ble Sir, 1. The applicant is an Social Activist and also is a Human Rights Activist. 2. In AIR 1992 SUPREME COURT 604 , it has been ruled that ; 1. The king is under no man, but under God and the law"-was the reply of the Chief Justice of England, Sir Edward Coke when James-I once declared "Then I am to be under the law. It is treason to affirm it"-so wrote Henry Bracton who was a Judge of the King's Bench. 4 2. The words of Bracton in his treatise in Latin "good Rex non debetesse sub homine, sed sub DeoetLegu" (That the king should not be under man, but under God and the law) were quoted time and time again when the Stuart Kings claimed to rule by divine right. We would like to quote and requite those words of Sir Edward Coke even at the threshold. 3. In our democratic polity under the Constitution based on the concept of 'Rule of Law' which we have adopted and given to ourselves and which serves as an aorta in the anatomy of our democratic system, THE LAW IS SUPREME. 4. Everyone whether individually or collectively is unquestionably under the supremacy of law. Whoever he may be, however high he is, he is under the law. No matter how powerful he is and how rich he may be. THE SAME PRINCIPLE IS APPLICABLE TO JUDGES ALSO. THE JUDGES CANNOT BE THE LAW UNTO THEMSELVES EXPECTING OTHERS TO OBEY THE LAW. 3. “Justice”, we do not tire of saying, must not only be done”, but, ‘must be seen to be done” and yet at times some Courts suffer from temporary amnesia and forget these words of wisdom. In the result, a Court occasionally adopts a procedure which does not meet the high standards set for itself by the judiciary. The present matter falls in that 5 unfortunate category of cases”. These are the observations of Hon'ble Supreme Court against a Judge who adopted the unfair procedure and Passed a wrong order consciously(NirankarNathWahi and Others, Vs. Fifth Addl. District Judge, Moradabad and others, AIR 1984 SC 1268). 4. In Kanwar Singh Saini v. High Court of Delhi 2012 (4) SCC 307; Hon’ble Supreme Court whilequasheing the Contempt proceedings observed as under ; “'Liberty' - the most cherished fundamental right, a basic human right, a "transcendental", inalienable, and 'primordial' right, should not be put in peril without following the procedure prescribed by law and in a casual and cavalier manner. Instant case is an example where all proceedings in the suit as well as under the Contempt of Courts Act, 1971, (hereinafter called as 'Act 1971'), have been taken without adverting to the procedure known in law.” 5. In Indirect Tax Practitioners Association Vs. R.K. Jain (2010) 8 SCC 851 Hon’ble Supreme Court had pointed out the duty of the citizen in exposing the wrongdoings in the Court. it is observed that ; 6 Who knows not that Truth is strong, next to the Almighty; she needs no policies, no stratagems, no licensings to make her victorious; those are the shifts and defences that error makes against her power .... Political philosophers and historians have taught us that intellectual advances made by our civilization would have been impossible without freedom of speech and expression. At any rate, political democracy is based on the assumption that such freedom must be jealously guarded. Voltaire expressed a democrat's faith when he told, an adversary in arguments: "I DO NOT AGREE WITH A WORD YOU SAY, BUT I WILL DEFEND TO THE DEATH YOUR RIGHT TO SAY IT". Champions of human freedom of thought and expression throughout the ages, have realised that intellectual paralysis creeps over a society which denies, in however subtle a form, due freedom of thought and expression to its members. "Although, our Constitution does not contain a separate guarantee of Freedom of the Press, apart from the freedom of expression and opinion contained in Article 19(l)(a) of 7 the Constitution, yet, it is well-recognised that the Press provides the principal vehicle of expression of their views to citizens. It has been said: Public criticism is essential to the working of its institutions. Krishna Iyer, J. agreed with C.J. Beg and observed: Poise and peace and inner harmony are so quintessential to the judicial temper that huff, "haywire" or even humiliation shall not besiege; nor, unveracious provocation, frivolous persiflage nor terminological inexactitude throw into palpitating tantrums the balanced cerebration of the judicial mind. The integral yoga of shanti and neeti is so much the cornerstone of the judicial process that criticism, wild or valid, authentic or anathematic, shall have little purchase over the mentation of the Court. I quite realise how hard it is to resist, with sage silence, the shafts of acid speech; and, how alluring it is to succumb to the temptation of argumentation where the thorn, not the rose, triumphs. Truth's taciturn strategy, the testimony of history says, has a higher power than a hundred thousand tongues or pens. In contempt jurisdiction, 8 silence is a sign of strength since our power is wide and we are prosecutor and judge. In Regina v. Commissioner of Police of the Metropolis (1968) 2 All ER 319, Lord Denning observed: Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticise us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political controversy. We must rely on our conduct itself to be its own vindication. 9 Exposed as we are to the winds of criticism, nothing which is said by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.' In the land of Gautam Buddha, Mahavir and Mahatma Gandhi, the freedom of speech and expression and freedom to speak one's mind have always been respected. After independence, the Courts have zealously guarded this most precious freedom of every human being. Fair criticism of the system of administration of justice or functioning of institutions or authorities entrusted with the task of deciding rights of the parties gives an opportunity to the operators of the system/institution to remedy the wrong and also bring about improvements.Such criticism cannot be castigated as an attempt to scandalize or lower the authority of the Court or other judicial institutions or as an attempt to interfere with the administration of justice except when such criticism is ill motivated or is construed as a deliberate attempt to run down the institution or an individual Judge is targeted for 10 extraneous reasons. Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19(1)(a) of the Constitution. And again as has been said in the famous speech of Abraham Lincoln in 1965: "With malice towards none, with charity for all, we must strive to do the right, in the light given to us to determine that right." It has been well said that if judges decay, the contempt power will not save them and so the other side of the coin is that judges, like Caesar's wife, must be above suspicion, per Krishna Iyer, J. in Baradakanta Mishra v. Registrar of Orissa High Court. It has to be admitted frankly and fairly that there has been erosion of faith in the dignity of the court and in the majesty of law and that has been caused not so much by the scandalizing remarks made by politicians or ministers but the inability of the courts of law to deliver quick and substantial justice to the needy. Many today suffer from remediless evils which courts of justice are incompetent to deal with. Justice cries in silence for long, far too long. The procedural wrangle is eroding the faith in our justice system. It is a criticism which the 11 judges and lawyers must make about themselves. We must turn the searchlight inward. At the same time we cannot be oblivious of the attempts made to decry or denigrate the judicial process, if it is seriously done. This question was examined in Rama DayalMarkarha v. State of Madhya Pradesh where it was held that fair and reasonable criticism of a judgment which is a public document or which is a public act of a judge concerned with administration of justice would not constitute contempt. In fact such fair and reasonable criticism must be encouraged because after all no one, much less judges, can claim infallibility. Such a criticism may fairly assert that the judgment is incorrect or an error has been committed both with regard to law or established facts.In Baradakanta Mishra v. Registrar of Orissa High Court MANU/SC/0071/1973 : (1974) 1 SCC 374, Krishna Iyer, J. speaking for himself and P.N. Bhagwati, J., as he then was emphasized the necessity of maintaining constitutional balance between two great but occasionally conflicting principles i.e. freedom of expression which is guaranteed under Article 19(1)(a) and fair and fearless justice, referred to "republican justification" suggested in the American system and observed: 12 Maybe, we are nearer the republican justification suggested in the American system: In this country, all courts derive their authority from the people, and hold it in trust for their security and benefit. In this state, all judges are elected by the people, and hold their authority, in a double sense, directly from them; the power they exercise is but the authority of the people themselves, exercised through courts as their agents. It is the authority and laws emanating from the people, which the judges sit to exercise and enforce. Contempt against these courts, the administration of their laws, are insults offered to the authority of the people themselves, and not to the humble agents of the law, whom they employ in the conduct of their Government. This shift in legal philosophy will broaden the base of the citizen's right to criticise and render the judicial power more socially valid. We are not subjects of a king but citizens of a republic and a blanket ban through the contempt power, stifling criticism of a strategic institution, namely, administration of Justice, thus forbidding the right to argue for reform of the judicial process and to comment on the performance of the 13 judicial personnel through outspoken or marginally excessive criticism of the instrumentalities of law and justice, may be a tall order. For, change through free speech is basic to our democracy, and to prevent change through criticism is to petrify the organs of democratic Government. The judicial instrument is no exception. To cite vintage rulings of English Courts and to bow to decisions of British Indian days as absolutes is to ignore the law of all laws that the rule of law must keep pace with the Rule of life. To make our point, we cannot resist quoting McWhinney, who wrote: The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of 14 the law that an immediate check is required to save the country. (emphasis supplied) 6. The abovesaid legal and factual position is the main factum of the present petition. The judges cannot be the law up to themselves expecting others to obey the law. 7. In a constitutional order grounded in the rule of law, it is imperative that judges make decisions according to law, unclouded by personal bias or conflicts of interest. Accordingly, upon ascending the bench, every High Court and Supreme Court judge takes an oath to “faithfully and impartially discharge and perform all the duties without fear or favour” of judicial office; and the Constitution has been construed to guarantee litigants the right to a “neutral and detached,” or impartial, judge. Moreover, in a democratic republic in which the legitimacy of government depends on the consent and approval of the governed, public confidence in the administration of justice is indispensable. It is not enough that judges be impartial; the public must perceive them to be so. The Code of Conduct for Judges 15 therefore admonishes judges to “act at all times in a manner that promotes public confidence in the integrity and impartiality of the judiciary” and to “avoid impropriety and the appearance of impropriety in all activities.” 8. That, on 12th Nov .2011 the three judge bench of Hon’ble Supreme Court comprising of Justice RanjanGogoi, Justice Prafulla C. Pant and Justice Uday U. Lalitissued Contempt notice to Justice MarkandeyKatju for his blog /Facebook post dated 6thand 18th September 2016. 9. That the said act on the part of three judges i.e. Shri RanjanGogoi, ShriPrafullaC. Pant & ShriUdayU.Lalit,is highly illegal as being contrary to the law and act and is an offence punishable under criminal law. Apart from being contempt of Hon’ble Supreme Court. 10. In order to take action against the above said three judges, I am filing this complaint on the basis of following factual and legal position settled byHon’ble Supreme Court. ILLEGALITY COMMITTED BY JUSTICE RANJUM GOGOI, 10.1 That the blog written by Justice MarkandeyKatju was directly attacking the in-capacity of the Bench 16 comprising of three judges ‘Justice RanjanGogoi Justice Prafulla C. Pant & Justice Uday U. Lalit’. 10.2 On 17/10/2016, the same Bench comprising of that three judges ‘Justice RanjanGogoi, Justice Prafulla C. Pant & Justice Uday U. Lalit’ , passed the order in R.P.(Crl) D 32189/2016 in,Crl.A.No.1584-1585/2014. 10.3 In the said order dated 17/10/2016 it is observed as under “___________________________________ ___________________________________” 10.4 That when there were allegations about in-capacity of the said Bench specially against Justice Gogoi, alleging the sorrow state of mental capacity of Justice Gogoito understand the sec 300 of I.P.C., then, as a matter of prudence and in view of provisions of sec 479 of Cr.P.C. and in view of law laid down by Hon’ble Supreme Court in catena of decisions and more particularly in the case of Devender Singh Bhullar’s case reported at 2011 [14] SCC 770 the three judges were disqualified from hearing the case. But then also the bench heard the matter illegally and as all the three judges acted contrary to law and therefore they 17 are liable for prosecution under-section 166 & 219 r/w 120(B) & 34 of the I.P.C. It is clear law and ratio down by Hon’ble Supreme Court in the case of State of Punjab-Vs- Davinder Pal Singh Bhullar (2011) 14 SCC 770 that it is mandatory for all Courts to follow the rule that the decision maker should have no interest by way of gain or detriment in the outcome of the proceeding. It has further been explained that the interest may be direct or indirect, it may arise from a personal relationship or from a close relationship or from a tenuous one. It has been held that., “Constitution of India, Article 226 - BIAS- allegations made against a Judge of having bias - issue of bias should be raised by the party at the earliest- Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required. In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the party. However, once such an apprehension 18 exists, the trial/judgment/order etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial "coram nonjudice". The apprehension of bias must be reasonable, i.e. which a reasonable person can entertain-Bias is the second limb of natural justice. Prima facie no one should be a judge in what is to be regarded as "suacausa. Whether or not he is named as a party. The decision-maker should have no interest by way of gain or detriment in the outcome of a proceeding. Interest may take many forms. It may be direct, it may be indirect, it may arise from a personal relationship or from a relationship with the subject-matter, from a close relationship or from a tenuous one – No one should be Judge of his own case. This principle is required to be followed by all judicial and quasi-judicial authorities as non-observance thereof, is treated as a violation of the principles of natural justice. The failure to adhere to 19 this principle creates an apprehension of bias on the part of Judge. Hence, on this count alone the impugned judgment is illegal, nulland void. Hon’ble Supreme Court in the case of Criminal Appeal No. 491/2009 UmanathPandey .vrs. State laid down that No One Should Be Judge Of His Own Case it has been held that; 17. How then have the principles of natural justice been interpreted in the Courts and within what limits are they to be confined? Over the years by a process of judicial interpretation two rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative process. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair-play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first rule is 'nemo index in causasua' or 'nemodebetessejudex in propriacausasua’ as stated in (1605) 12 Co. Rep. l 14 that is, 'no man shall be a judge in 20 his own cause'. Coke used the form 'aliquis nondebetessejudex in propriacausaquia non potestessejudex at pars' (Co. Litt. 1418), that is. no man ought to be a judge in his own case, because he cannot act as Judge and at the same time be a party'. The form 'nemopotestessesimul actor et judex'.that is, 'no one can be at once suitor and judge' is also at times used. The second rule is 'audialterampartem. that is, 'hear the other side'. At times and particularly in continental countries, the form 'audietur at aitera pars' is used-meaning very much the same thing. A corollary has been deduced from the above two rules and particularly the audialterampartem rule, namely 'qui aliquidstatuerit paste inauditaalteramactquam licet dixerit, Iiaudacquumfacerit’ that is. 'he who shall decide anything without the other side having been heard, although he may have said what is right, will not have been what is right' (See Bosewell's case (1605) 6 Co. Rep. 48-b, 52-aj or in other words, as it is now expressed, 'justice should not only be done but should manifestly be seen to be 21 done'. Whenever an order is struck down, as invalid being in violation of principles of natural justice, there is no final decision of the case and fresh proceedings are left upon. All that is done is to vacate the order assailed by virtue of its inherent defect, but the proceedings are not terminated. 11. What is meant by the term 'principles of natural justice' is not easy to determine. Lord Summer (then Hamilton.LJ.)in Ray v. Local Government Board (1914) 1 KB 160 at p. 199:83 LIKB 86) described the phrase as sadly lacking in precision. In General Council of Medical Education £ Registration of U.K. v. Sanckman (1943 AC 627: (1948) 2 All ER 337). Lord Wright observed that it was not desirable to attempt 'to force it into any procusteam bed' and mentioned that one essential requirement was that the Tribunal should be impartial and have no personal interest in die controversy, and further that it should give 'a full and fair opportunity' to every party of being heard. 22 Disqualification of Judge in trying case takes away jurisdiction:- i) If the Judge had any interest in the decision of the case he is disqualified from trying it, however small the interest may be. One important subject at all to events is to clear away everything which might engender suspicion and distrust of the tribunal and to promote feelings of confidence in the administration of justice, which is so essential to social order and security. AIR 1919 ALL 345 ii) Disqualification takes away jurisdiction-A Judge who in consequence of a personal disqualification is forbidden by law to try a particular case though he may be authorized generally. 23 Cal 328 ( MEANS THAT THOUGH REVIEW SHOULD BE BEFORE THE SAME BENCH BUT DUE TO PERSONAL INTEREST THE BENCH IS DISQUALIFIED TO HEAR THE REVIEW.) 23 Privy Council in the case of AIR 1945 PC 38 laid down that a judgement which is the result of bias or want of impartiality, is a nullity and the trial ‘corum Non-Judice’ . 11. The offences committed by three Judges are as under: (11.1) OFFENCE No. 1 #:- Acting contrary to law U/s. 479 of Cr. P.C. and Violation of law laid down by Hon’ble Supreme court in (2011) 14 SCC 770 – i.e. hearing the matter and passing the order even if they are disqualified to hear it. That due to personal allegations against Justice RanjanGogoi and others they were disqualified to hear the case. (11.2) OFFENCE No. 2# :- Violation of Judges ethics Code – by hearing case of his own. Justice Shri. Gogoi being himself attacked in the blog, should not have decided the matter and taken cognizance of Contempt. At the most they should have passed the order that the matter to be placed before appropriate bench by Hon’ble Chief Justice of India in view of CODE OF JUDICIAL ETHICS as has been declared and adopted by the Supreme Court of India in its Full Court. A Charter called the “Restatement of Values of Judicial Life” also called 24 as CODE OF JUDICIAL ETHICS to serve as a guide to be observed by Judges, essential for independent, strong and respected judiciary, indispensable in the impartial administration of justice. This Resolution was preceded by a draft statement circulated to all the High Courts of the country and suitably redrafted in the light of the suggestions received. It has been described as the ‘restatement of the pre-existing and universally accepted norms, guidelines and conventions’ observed by Judges. It is a complete code of the canons of judicial ethics. It reads as under: (1) Justice must not merely be done but it must also be seen to be done. The behaviour and conduct of members of the higher judiciary must reaffirm the people’s faith in the impartiality of the judiciary. Accordingly, any act of a Judge of the Supreme Court or a High Court, whether in official or personal capacity, which erodes the credibility of this perception has to be avoided. .................. (3) Close association with individual members of the Bar, particularly those who practice in the same court, shall be eschewed. ....... 25 8) A Judge should practice a degree of aloofness consistent with the dignity of his office. (9) A Judge shall not hear and decide a matter in which a member of his family, a close relation or a friend is concerned. If we take reference from federal Court then the Code of Conduct is the law with respect to the ethical obligations of federal judges. Disqualification of justice, judge or magistrate judge : a) Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned. b) He shall also disqualify himself in the following circumstances: (1) Where he has a personal bias or prejudice concerning a party, or personal knowledge of disputed evidentiary facts concerning the proceeding; …… 26 (iii) Is known by the judge to have an interest that could be substantially affected by the outcome of the proceeding; Judicial Disqualification: An Analysis of Federal Law (d) For the purposes of this section the following words or phrases shall have the meaning indicated: (1) “proceeding” includes pretrial, trial, appellate review, or other stages of litigation;(2) the degree of relationship is calculated according to the civil law system; (e) No justice, judge, or magistrate judge shall accept from the parties to the proceeding a waiver of any ground for disqualification enumerated in subsection When the impartiality of a judge is in doubt, the appropriate remedy is either the said Judge should recuse himself from the case or to adopt the procedure to disqualify that judge from hearing further proceedings in the matter. In Caperton v. A.T. Massey Coal Co., 4 a case concerning disqualification of a state supremecourt justice, the U.S. Supreme Court reaffirmed that litigants have a due process right to an impartial judge, 27 and that under circumstances in which judicial bias was probable, due process required disqualification. The Court noted, however, that disqualification rules may be and often are more rigorous than the Due Process Clause requires. So it is with disqualification requirements for In common parlance, some use “disqualification” and “recusal” interchangeably, while others distinguish between the two, using “recusal” to mean withdrawal on the judge’s own initiative, and “disqualification” to mean withdrawal on the motion of a party. Because applicable federal statutes use “disqualification” broadly to embrace withdrawal on motion and suasponte and do not refer to “recusal,” this monograph will follow their lead and do the same, except to the extent that quoted material from the cases speaks of recusal. Disqualification has ethical and procedural dimensions. (11.3) OFFENCE No. 3#:- India Penal Code 166,218, 219 : - Passing an order contrary to law. Taking Cognizance of 28 Contempt by misusing the power to save themselves from being exposed to public as incapable and thereby causing harassment to Justice Katju. (11.4) OFFENCE No. 8 # :- Malice IN LAW : By using discretionary power for unauthorized purpose —doing of a wrongful act intentionally but without just cause or excuse, or for want of reasonable or probable cause and gross abuse of legal power to use a rule to a purpose and in a manner unwarranted by it . Order infected with an abuse of power as is based on personal vendatta. The Apex Court in a decision in the case of Smt.S.R.Venkataraman Vs. Union of India and another reported in (1979) 2 Supreme Court cases 491 wherein while considering the question of malice in law by quoting the observations of Viscount Haldane in the decision in the case of Shearer .vs. Shields reported in (1914) AC 808, it has been observed by Apex Court in paragraph no.5 of the said decision: "5.............. Malice in law is, however, quitedifferent Viscount Haldane described it as follows in Shearer V. Shields: A person who inflicts an injury upon another person in contravention of the law is not 29 allowed to say that he did so with an 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 his mind is concerned; he acts ignorantly and in that sense innocently. Thus 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." COLOURABLE EXERCISE OF POWER WHILE PASSING THE ORDER Passing of such order is arbitrary and amounts to colorable exercise of power by the Judge as has been held by Hon’ble Bombay High Court in the landmark judgments in the case of Vaidya vs. State 2002 (2) Mh. L.J. 830 (Bom). It has been held that, (Para 7) - .. What was expected of the learned magistrate was to find out that whether any offence is made out in the complaint. The entire order of learned magistrate does not even remotely indicate how he came to the conclusion that offence is 30 disclosed. He has observed that at this stage main allegation is that documents produced before the selection committee of the M.P.S.C. were false and matter was decided only after a trial, this reasoning of the learned magistrate in his order simply stated that it is a fit case for full fledged trial which reasoning is incomprehensible and it appears that for some reasons not on record the learned magistrate took cognizance of offence without having been himself satisfied that an offence was in fact committed. The order of learned magistrate if read in its entirety clearly shows that the magistrate was aware that complaint discloses no offence and inspite of haing become aware he issued the process for reasons which can only be extraneous. The order not only suffers from non-application of mind but clearly show that it is passed for some extraneous considerations. As a senior additional chief metropolitan magistrate he is expected to know what is the effect of summoning a person as accused to criminal court – To cause harassment to the petitioner recourse taken to criminal court and the court lend necessary assistance to the complainant to abuse the process of law by passing a vague order consciously. It 31 is not a case of some order passed hurriedly due to pressure of work the learned magistrate had passed an order running in seven pages which does not speak of a single sentence as to how and what offence is committed. I am convinced that the learned Magistrate also found that no offence is disclosed even thereafter going out of the way he wanted to help the complainant. The process of law was misused not only by the complainant but also by the learned magistrate. It is a clear case of misuse of judicial power by the court. (11.5) OFFENCE No. 5- JUDICIAL ADVENTURISM – Passing order by ignoring law declared by Hon’ble Supreme Court, and thereby committing offence under Contempt of court. (vide: AIR 2001 SC 1975, AIR 1997 SC 2477.) (11.6) OFFENCE No. 6 # : - FRAUD ON POWER - Passing order for wreaking vengeance and misuse of power in bad faith as is exercised maliciously and its repository is motivated by personal animosity towards Justice Katju who are directly affected by its exercise.(vide : 2004 CRIMES 33 (SC) ( Full Bench ) 32 Justice Shri. Gogoi& other two judges of the Bench misused its power in breach of law, which renders the impugned act or order ultra vires. It is a case of fraud on powers. The power is exercised for an improper motive, to satisfy a private and personal grudge and for wreaking vengeance of a party. This is the misuse of power in bad faith as is exercised maliciously and its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of that power. The order is made for a purpose other than that which finds place in the act, and proved to be committed in bad faith also from corrupt motives, would certainly be held to be inoperative as covered under Fraud on Power. Hon”ble Supreme Court in the case of Vijay Shekhar Vs. Union of India 2004 [3] CRIMES SC 33 laid down that ; A) FRAUD ON POWER – MISUSE OF POWER BY THE MAGISTRATE - magistrate issued process and bailable warrants on a fraud complaint - the complaint in question is a product of fraud and a total abuse of the process of court. there is also serious doubt whether the procedure 33 required under the code of criminal procedure was really followed by the magistrate at all while taking cognizance of the offence alleged. - the same is liable to be quashed based on the legal principle that an act in fraud is ab initio void.- this principle applies to judicial acts also. B) FRAUD ON POWER VOIDS THE ORDER if it is not exercised bona fide for the end design. - there is a distinction between exercise of power in good faith and misuse in bad faith. - when an authority misuses its power in breach of law, say, by taking into account, some extraneous matters or by ignoring relevant matters. that would render the impugned act or order ultra vires. it would be a case of fraud on powers. the misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a party - a power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise.- use of a power for an 'alien' purpose other than the one for which the power is conferred is mala fide use of 34 that power. same is the position when an order is made for a purpose other than that which finds place in the order. - and any action proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative." - "no judgment of a court, no order of minister, can be allowed to stand if it has been obtained by fraud. fraud unravels everything." (emphasis supplied) see also, in lazarus case at p. 722 per lord parker, c.j. : "'fraud' vitiates all transactions known to the law of however high a degree of solemnity." C) "FRAUD AS IS WELL KNOWN VITIATES EVERY SOLEMN ACT. - fraud and justice never dwell together. fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter. it is also well settled that misrepresentation itself amounts to fraud. indeed, innocent misrepresentation may also give reason to claim relief against fraud. a fraudulent misrepresentation is called deceit and consists in leading a man into damage by 35 willfully or recklessly causing him to believe and act on falsehood. it is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad. an act of fraud on court is always viewed seriously. a collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata." (11.7) Needless to add here that, Hon’ble Chief Justice of India (Shri Justice T.S. Thakur) in recent judgement in the case of R. R. Parekh vs. High Court of Gujarat &anr. CIVIL APPEAL Nos 6116-6117 OF 2016, Decided on JULY 12, 2016. ,ruled that if judge acts contrary to law then 36 natural presumption is that the said judge acted maliciously and corruptly. It has been ruled as under; A ) Action against a Judge - on the basis of Judicial decision i.e. judgment rendered by a Judicial Officer even there not being direct proof of corruption is proper if the Judge passed order unmindful of the governing provisions of the statute - It is not the correctness of the verdict but the conduct of the officer which is in question - The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power - Yet on the other hand, there is a vital element of accountability to society involved in dealing with cases of misconduct. 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 37 ignored. Both are vital to the preservation of the integrity of the administration of justice. - Appellant- Judicial Officer who was Chief Judicial Magistrate passed the order against the law in favor of accused – the allegations against the Appellant were thatthe manner and mode in which he awarded the sentence in Crl. Case clearly show that the accused had managed with him for showing favour in awarding sentence and accordingly, he awarded the punishment fixing the term of sentence in such a way that the accused need not have to remain in custody for any longer period and thereby he is guilty of indulging in Corrupt-practice, dereliction in discharging your judicial functions and acted in a manner unbecoming of a Judicial Officer AND these acts of Appellant CJM , would amount to acts of grave misconduct and tantamount to conduct unbecoming of a Judicial Officer - The Committee found the charge of misconduct was established and came to the conclusion that the Appellant should be dismissed from service -The State Government by a notification dated 14 July 2009 dismissed the Appellant from service – Upholding 38 the action against Judicial officer Supreme Court held as under. HELD , - - The disciplinary authority has to determine whether there has emerged from the record one or more circumstances that indicate that the decision which forms the basis of the charge of misconduct was not an honest exercise of judicial power - Disciplinary inquiry can be done on the basis of Judicial decision i.e. judgment rendered by a Judicial Officer - The issue of whether a judicial officer has been actuated by an oblique motive or corrupt practice has to be determined upon a careful appraisal of the material on the record - Direct evidence of corruption may not always be forthcoming in every case involving a misconduct of this nature. A wanton breach of the governing principles of law or procedure may well be indicative in a given case of a motivated, if not reckless disregard of legal principle. It is not the correctness of the verdict but the conduct of the officer which is in question . In the absence of a cogent explanation to the contrary, it is for the disciplinary authority to determine whether a pattern has emerged on the basis of which an 39 inference that the judicial officer was actuated by extraneous considerations can be drawn . (Para 15) The charges against the Appellant- Judicial Officer involved rendering of decisions actuated by corrupt practice or by oblique motives. The two criminal cases which were tried by the Appellant involved offences under Section 135 of the Customs Act - The proviso spells out that in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court, such imprisonment shall not be for less than three years - The Appellant was evaluating, in Criminal Case involving the smuggling of 275 silver slabs worth Rs. 5,86,50,620/- - He awarded a sentence of imprisonment for a term of less than one year.The explanation of the Appellant that he was recently promoted to the cadre of CJM and was not aware of the provisions of Section 135 was not accepted by the Disciplinary Committee (or by the Full Court). As a judicial officer who was in service for over fourteen years, the Appellant could not have been unmindful of and was duty bound to have read the governing provisions of the statute under which the 40 offence was sought to be established.It is inconceivable that a judicial officer would do so in two successive trials without apprising himself of the law or the punishment provided by the legislature. The Appellant awarded sentences ranging from three months to five years of imprisonment to different accused -No reasons appear from the record of the judgment, for awarding less than the minimum sentence prescribed - the Appellant paid no heed whatsoever to the provisions of Section 135 under which the sentence of imprisonment shall not be less than three years, in the absence of special and adequate reasons to the contrary to be recorded in the judgment of the Court. Most significant is the fact that the Appellant imposed a sentence in the case of each accused in such a manner that after the order was passed no accused would remain in jail any longer - The Appellant had absolutely no convincing explanation for this course of conduct. (11.8) That after hearing the matter without jurisdiction illegally, the Bench committed other offence of misuse of power. The three judges Bench issued Contempt Notice to Justice MarkandeyKatju, for writing blog against them. The 41 very act is illegal on the face of it, in view of catena of decision laid down by the Hon’ble Supreme Court and Hon’ble High Court. a) FIRSTLY the blog was written by Justice Katju was dated 6th and 18th September 2016.And after reading that blog the same Court /Bench passed the order on 17/10/2016 . While passing order on 17/10/2016 the same Court /Bench didn’t found that the said blog is scandalous. Then how after month i.e. on the 11th November, 2016 the same Court /Bench could come to the conclusion that the blog was scandalous. The reason is missing in the order issuing contempt notice b) SECONDLY the FACEBOOK blog written by Justice Katju dated 18th September 2016 was not part of the record of the court on 11th November 2016, then the concerned judge himself should not have brought it in the hearing and humiliated Justice Katju by showing him and issuing contempt notice. This is the reason why the legislature have made provisions of sec 479 of Cr. P.C. prohibiting the person interested to become Judge of the case and the judges are otherwise prohibited from hearing a case where they are 42 interested directly or indirectly. Even otherwise Justice Gogoi and other two judges should not have gone to the extent of contempt on 11 Nov 2011 in order to settle their personal scores. Hon’ble Supreme Court in many cases laid down the ratio that judicial process should not be used as an tool for oppression to harass the other party out of vengeance and personal vendetta(Vide: PNB) In a leading decision of the Court of Appeal Balogh -v- St Albans Crown Court [1975] 1 QB 73 it has been ruled by 3 Judge bench of Lord Denning MR, Stephenson LJ, Lawton LJ. that“As I have saida Judge should act of his own motion only when it is urgent and imperative to act immediately. In all other cases he should not take it on himself to move, he should leave it to attorney General or to the party aggrieved to make a motion in accordance with the rules in RCS ord 52. The reason is so that he should not appear to be both prosecutor and judge, for that is a role which does not become him well.” This law is followed by many High Court and Hon’ble Supreme Court. Moreover it is settled law that contempt 43 jurisdiction cannot be used to save judge against allegations are made.[Vide: 2015(3)AKR 627] (11.9) That the Coram of above three Judges was a ‘CoramNon-Judice‘ as being against sec-479 of Cr. P.C. and against the law laid down in Bullar case(Supra) therefore any order passed is null and vide and vitiated. Any action including issuance of contempt notice is also illegal, null and void in view of VijayShekhar –Vs—Union of India 2004(3) Crimes (SC) 33,Where full Bench of Hon’ble Supreme Court ruled that any order passed by personal motive is a case of fraud on power by the judge and no order of the court will be allowed to stand if it is a product of fraud. Such order is vitiated and has to be treated as non-est by every Court as fraud and justice never dwell together . (11.10)The three judges seems to have conspired with each other and in furtherance of their common intention to harass Justice MarkandeyKatju they dis-obeyed the direction of the law and passed the order maliciously which they knew to be contrary to law and therefore they are liable to be punished under section. 166,219,220 r/w 120(B) & 34 of I.P.C. 44 (11.11)This act of hearing the case appears to have been done to save themselves from their wrong order and also with a view to control the damage caused in the eyes of public and therefore they can also be liable to be prosecuted under section 218 of I.P.C. (11.12)That the three Judges also acted in utter dis regard and defiance of Hon’ble Supreme Court’s orders, judgement of binding nature and therefore they are liable for action under contempt of Courts Act. Hon’ble Supreme Court ruled that if any judge including judge of High Court if act in utter disregard and defiance of the law laid down by Hon’ble Supreme Court then he/she is guilty of contempt of Supreme Court and the Supreme Court is having power to punish such judges. In RabindraNath Singh –Vs- PappuYadav case (2010 (3) SCC (Cri) 165 Hon’ble Supreme Court held that the High Court committed contempt of Court in not following the guidelines of Supreme Court in the concerned matter. In the case of SPENCER & COMPANY LTD –VsVISHWADARSHAN DISTRIBUTORS PVT. LTD (1995) 1 SCC 259 it is held that the Supreme Court’s order even if is only in the form of a request instead of explicit command or direction it is a judicial order and is binding and enforceable 45 throughout the territory of India – In case of flouting of the order by High Court, it is open to Supreme Court to initiate Contempt proceedings against the erring Judges of High Court. If the courts, Tribunals and authorities refuse to carry out the directions given by the Court the result will be chaos in the administration of justice and the very democracy founded on rule of law crumbles. 12. That the Court 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 Court 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. Integrity is the hallmark of judicial discipline, apart from others. Justice Delivery system made of Bench and Bar. 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. (vide :Tarak Singh &Anr. Vs. JyotiBasu& Ors., (2005) 1 SCC 201. 46 13. 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." The same ration is applicable to above Three Judges. 14. 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 judiciary have the responsibilitybuilding up of the case appropriately to answer he cause of justice."The personality, knowledge, judicial restraint, capacity to maintain dignity" are the additional aspects which go into making the Courts functioning successfully. 47 Supreme Court in Ram Chandra ShuklaVs. 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 Kumar RangraoPatil&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. 15. That such judges lower down the dignity of Hon’bleSupreme Court and due to their proved misbehaviors they need to be removed from the post and in view of ‘In House Procedure’, they need to be directed to 48 not to come to the court till their removal is done by the President of India by following impeachment proceedings. 16. SANCTION:- That in view of law laid down by Constitution Bench of Supreme Court in the case of K.Veerswami in (1991) 3 SCC 655 and explained in 2001 Cr.P.C 800,the judges of Supreme Court and High Court can be prosecuted as like a common man. Moreover in view of provision of section of section 3(2) of Judges Prosecution Act as explained by Division Bench of Bombay High Court in the case of 2003 (1) B. Cr. C. 727, , the government or High Court or Supreme Court can direct prosecution of any Judge and in that case no protection is available to the Judges Hon’ble Supreme Court in ruled as under; in of K. Veerswami Vs. Union of India 1991 (3) SCC 655 rule that : (53) …… The judiciary has no power of the purse or the sword. It survives only by public confidence and it is important to the stability of the society that the confidence of the public is not shaken. The Judge whose character is clouded and whose standards of morality and rectitude 49 are in doubt may not have the judicial independence and may not command confidence of the public. He must voluntarily withdraw from the judicial work and administration. (54) …….. The emphasis on this point should not appear superfluous. Prof. Jackson says "Misbehavior by a Judge, whether it takes place on the bench or off the bench, undermines public confidence in the administration of justice, and also damages public respect for the law of the land; if nothing is seen to be done about it, the damage goes unrepaired. This a must be so when the judge commits a serious criminal offence and remains in office". (Jackson's Machinery of Justice by J.R. Spencer, 8th Edn. pp. 369-70. (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 50 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, theprosecution of a Judge for criminal misconduct before his removal bu Parliament for proved misbehaviour is unobjectionable. “……….But we know of no law providing protection for Judges from criminal prosecution. Article 361(2) confers immunity from criminal prosecution only to the President and Governors of States and to no others. Even that immunity has been limited during their term of office. The Judges are liable to be dealt with just the same way as any other person in respect of criminal offence. It is only in taking of bribes or with regard 51 to the offence of corruption the sanction for criminal prosecution is required. (61) For the reasons which we have endeavored to outline and subject to the directions issued, we hold that for the purpose of clause (c) of S. 6(1 of the Act the President of India is the authority competent to give previous sanction for the prosecution of a Judge of the Supreme court and of the High court. (79) Before parting with the case, we may say a word more. This case has given us much concern. We gave our fullest consideration to the questions raised. We have examined and reexamined the questions before reaching the conclusion. We consider that the 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 52 but jeopardizes the integrity of the entire judicial system. (80) A judicial scandal has always been regarded as far more deplorable than a scandal involving either the executive or a member of the legislature. The slightest hint of irregularity or impropriety in the court is a cause for great anxiety and alarm. "A legislator or an administrator may be found guilty of corruption without apparently endangering the foundation of the State. But a Judge must keep himself absolutely above suspicion" to preserve the impartiality and independence of the judiciary and to have the public confidence thereof. Let us take a case where there is a positive finding recorded in such a proceeding that the Judge was habitually accepting bribe, and on that ground he is removed from his office. On the argument of MrSibal, 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 53 civilized society the law cannot be assumed to be leading to such disturbing results. 17. However as a matter of prudence I am making this representation with humble request that the guilty should be punished. And the case to be brought to its logical end in order to keep the confidence of public in justice delivery system Unless it will lower the image of the Court in the eyes of common man. 18. Hon'ble Justice Dr. B. S. Chauhan in the case reported in 2006 (5) AWC 4519 ALL = MANU/ UP / 1412 /2005 ruled that : INDEX NOTE: 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 ORDER WAS PASSED GIVING UNDUE ADVANTAGE TO THE MAIN ACCUSED - GRAVE NEGLIGENCE IS ALSO A 54 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, DOMESTIC 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 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. 55 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 misconduct and warrant initiation of disciplinary proceedings. 19. 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. 20. 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. 21. 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 56 in a manner which is unbecoming of an employee/Government servant. 22. In the case of Ramanlal –Vs- State 2001 Cri. L. J. 800, it has been held that, the High Court Judge is liable to be prosecuted in view of Sec. 120 (B) of I.P.C. if he supports the conspirators. It has been held that, A ] 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. 57 B] Cri. P.C. Sec. 197 – Sanction for prosecution – Accused are Additional High Court Judge, and others hatched conspiracy to falsely implicate a shop owner in a case - FIR registered u.s. 120-B, 195, 196, 342, 347, 357, 368, 388, 458, 482, I.P.C. – 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. C] The applicant – Ram Lal Addl. High Court Judge hatched criminal conspiracy – The 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/DEMOTED 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 58 Judicial Magistrate at the time of filing the charge-sheet – Applicant filed petition before High Court challenging it – Petition of applicant was rejected by High Court and Supreme Court in limine – No relief is required to be granted to petitioner in view of the facts of the case. D] Conspiracy – I.P.C. Sec. 120 (B) – Apex court made it clear that an inference of conspiracy has to be drawn on the basis of circumstantial evidence only because it becomes difficult to get direct evidence on such issue – The offence can only be proved largely from the inference drawn from acts or illegal omission 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. 59 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 continetureQuiaQua Quad Alias Non Est LictumNecessitasfacitLictum, Means necessity is not restrained by laws – Since what otherwise is not lawful necessity makes it lawful – Proceeding proper cannot be quashed. 23. MISUSE OF POWER BY ISSUING CONTEMPT NOTICE TO SETTLE PERSONAL SCORES: In the famous Quintin Hogg case (1968) 2 WLR 1204; 1206-07, the Lord Denning laid down remarkable guidelines in the matter of actions for contempt and said Silence is not an option when things are ill done and Court will never use this jurisdiction as a means to 60 uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us "It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise; more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For there is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal faithfully with all that is done in a Court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, for the nature of our office; we cannot reply to their criticisms. We cannot enter into public controversy. Still less into Political controversy. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds or criticism, 61 nothing which is said by this person or that, nothing which is written by this person or that, nothing which is written by this pen or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion requires, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done." The law of contempt has been enacted to secure public respect and confidence in the judicial process. The power to punish for contempt, as a means of safeguarding Judges in deciding on behalf of the community impartially is not a privilege accorded to Judges. The power to punish for contempt of Court is a safeguard not for Judges as persons but for the function which they exercise. As per the Third Schedule to the Constitution, oath or affirmation is taken by a Judge that he will duly and faithfully perform the duties of the office to the best of his ability, knowledge and judgment without fear or favour, affection or ill-will and will so uphold the Constitution and the laws. In accordance therewith, Judges must always remain impartial and should be known by all people to be impartial. The Court has to find out whether the impugned action is a mere defamatory attack on the Judge or whether it 62 is calculated to interfere with the due course of justice or the proper administration of law by his Court. Personal interest in the subject matter of the proceedings which in law would be considered as preventing him from giving an unbiased decision. The Contempt of Courts Act, 1971 was not enacted by the Parliament to deal the situations arising out of circumstances displayed in the order. The power of the Court to initiate a proceeding for criminal contempt is a plenary one with grave consequences but the same ought to be sparingly exercised. The Contempt of Courts Act is a penal statute. In the matter of interpreting a penal provision, it is well known that it must be strictly construed so far as the penal consequences are concerned. Contempt proceedings should not be initiated at every irritant or pin-prick. Normally, the Courts should not be oversensitive and should not take very serious note of any loose expressions in the application. Deference to judiciary cannot be secured by the scepter of contempt but is to be attained by the sublime-quality of the conduct of the Judges and their judgments. Contempt jurisdiction is to be sparingly exercised and in very exceptional cases. If a Judge is defamed in such a way as 63 not to affect the administration of justice, he has the ordinary remedies for defamation, if he should feel impelled to use them. 24. REASONED ORDER : The order issuing Contempt notice is not a reasoned order : While taking Cognizance in Suo-Motu Contempt Petition (Criminal) No. 4 of 2016, the reason given by the bench is as under; “Prima facie, the statements made seem to be an attack on the judge and not on the judgment. We thereafter, issue notice of Contempt of Show Cause why Contempt proceedings should not be drawn up against Justice MarkandeyKatju and he be appropriately dealt with” 25. In case, reported in (2010 (4) SCC 785) Assistant Commissioner, Commercial, Tax Department, Works, Contract and Leasing, Quota. Vs. Shukla and Brothers, Hon'ble Supreme Court held that it shall be obligatory on the part of the judicial or quasi judicial authority to pass a reasoned order, the orders so passed by the authorities should give reason for arriving at any conclusion showing 64 proper application of mind. Violation of it could, vitiate the order itself. Relevant portion from the judgment of Assistant Commissioner (supra) is reproduced as under:- "The principle of natural justice has twin ingredients; firstly, the person who is likely to be adversely affected by the action of the authorities should be given notice to show cause thereof and granted an opportunity of hearing and secondly, the orders so passed by the authorities should give reason for arriving at any conclusion showing proper application of mind. Violation of either of them could in the given facts and circumstances of the case, vitiate the order itself. Such rule being applicable to the administrative authorities certainly requires that the judgment of the Court should meet with this requirement with high degree of satisfaction. The order of an administrative authority may not provide reasons like a judgment but the order must be supported by the reasons of rationality. The distinction between passing of an order by an administrative or quasijudicial authority has practically extinguished and both are required to pass reasoned orders." It is well settled proposition of law that not only judicial or quasi-judicial order but even the administrative order 65 affecting the civil rights of the citizens, should be reasoned one to cope with the requirement of Article 14 of the Constitution. Unreasoned order creates un-stability and distrust in people's mind towards the administration or the authority who has passed such order. In democratic polity, there is no scope to pass an order affecting civil rights of the citizens which may be unreasoned. It is constitutional obligation and right of the citizens to know the reasons in the decision making process affecting their right or cause. 26. In the case of Shukla and Brothers, their lordships held that the reason is the very life of law. When the reason of a law once ceases, the law itself generally ceases. Such is the significance of reasoning in any rule of law. Giving reasons furthers the cause of justice as well as avoids uncertainty, to quote:- "Reasons are the soul of orders. Non-recording of reasons could lead to dual infirmities; firstly, it may cause prejudice to the affected party and secondly, more particularly, hamper the proper administration of justice. These principle are not only applicable to administrative or executive actions, but they apply with equal force and, in fact, with a greater degree of precision to judicial pronouncements." The 66 concept of reasoned judgment has become an indispensable part of the basic rule of law and , in fact, is a mandatory requirement of the procedural law." In 2013(1) ALL MR(SC)488 it has been held that the order which, clearly shows non-application of mind and non-recording of reasons, leads only to one conclusion, that the said order was an arbitrary exercise of power . In Kumari Shaima Jafari Vs. Irphan @ Gulfam and Ors. (2013)14 SCC 348 it has been ruled as under; ORDER WITHOUT COGENT REASONS -WITHOUT REASONS THE CONCLUSION BECOMES LIFELESS - the deliberation by the High Court has to be reflective of due cogitation and requisite rumination. It must reflect application of mind, consideration of facts in proper perspective and appropriate ratiocination either for affirmation or reversal of the judgment. The reasons ascribed may not be lengthy but it should be cogent, germane and reflective. It is to be borne in mind, to quote from Wharton's Law Lexicon: - "The very life of law, for when the reason of a law once ceases, the law itself generally ceases, because reason is the foundation of all our laws - "reason" is the heart beat of every conclusion and without the same, it becomes lifeless. It is dangerous to forget that reason is the essential foundation on which a conclusion can be based. Giving reasons for an order is the sacrosanct requirement 67 of law which is the aim of every civilized society. And intellect respects it. It would not be out of place to state here that the reasons in criminal jurisprudence must flow from the material on record and in this regard, a line from Bossuet is worth reproducing: - "The heart has reasons that reason does not understand."We have said so as a Judge should not be guided by any kind of emotion, prejudice or passion while giving his reasons. 27. The totality of above settled law makes it clear that the learned Judges acted in utter disregard and defiance of the law laid down by Supreme Court and contrary to law and settle their personal scores and out of anger, they insulted Justice Katju and thereby acted against the accepted cannon of judges and therefore, they are unable to perform THEIR duty of Judge and do the justice and therefore they are liable to be removed from his post and they are also liable for strict punishment which will be deterrent to others also. 28. Section in The Indian Penal Code for prosecution of Judges : 1) 166. Public servant disobeying law, with intent to cause injury to any person. - Whoever, being a public servant, knowingly disobeys any direction of the law as to the way in which he is to conduct himself as such public servant, 68 intending to cause, or knowing it to be likely that he will, by such disobedience, cause injury to any person, shall be punished with simple imprisonment for a term which may extend to one year, or with fine, or with both. Illustration A, being an officer directed by law to take property in execution, in order to satisfy a decree pronounced in Z’s favour by a Court of Justice, knowingly disobeys that direction of law, with the knowledge that he is likely thereby to cause injury to Z. A has committed the offence defined in this section. 2) Sec.218 of I.P.C. reads as under 218: Whoever , being a public servant , and being as such public servant, charged with the preparation of any record or other writing , frames that record or writing in a manner which he knows to be incorrect, with intent to cause , loss or knowing it to be likely that he will thereby cause, loss or injury to the public or to any person , or with intent thereby to save , or knowing it to be likely that he will thereby save ,any person from legal punishment, or with intent to save , or knowing that he is likely thereby to save , or knowing it to be likely that he is likely thereby to save , any property 69 from forfeiture or other charge to which it is liable by law, shall be punished with imprisonment of either description for a term which may extend to three years, or with fine, or with both. Comment: this section deals with intentional preparation by a public servant of a false record with the object of saving or injuring any person or property. The correctness of the record is of the highest importance both to the state and the public .The intention with the public servant does the act mentioned in the section is an essential ingredient of the offence punishable under it. A Public servant commits the offence punishable under this section even if the person whom he intends to save from legal punishment is himself. Hon’ble Bombay High Court in the case of AIR 1921 Bom 115 held that, I.P.C.218 – The gist of the section is the stiffening of truth and the perversion of the course of justice in cases where an offence has been committed it is not necessary even to prove the intention to screen any 70 particular person. It is sufficient that he know it to be likely that justice will not be executed and that someone will escape from punishment. A.I.R. 1921 BOM 115 3) I.P.C.219. Whoever, being a public servant , corruptly or maliciously makes or pronounces in any stage of a judicial proceeding, any report , order, verdict, or a 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. Comment: This section should be read in conjunction with s.77. It contemplates some willful excess of authority , in other words, a guilty knowledge superadded to an illegal act. This section and the following one deal with corrupt or malicious exercise of the power vested in a public servant for a particular purpose. 4) I.P.C.220. :- Whoever, being in any offence which gives him legal authority to commit persons for trial or to confinement, or to keep persons in confinement, corruptly or maliciously, or to keep persons in confinement, corruptly or maliciously commits any person trial or confinement , in the exercise of that authority, knowing that in so doing he is acting contrary to law, shall be punished with imprisonment 71 of either description for a term which may extend to seven years , or with fine or with both. 29. ROLE OF HON’BLE CHIEF JUSTICE OF INDIA : That Hon’ble Chief Justice of India, being head of all judicial system in India, should have taken note of the violation of settle legal position by the Judges of the Supreme Court, but he failed to act and apply ration in AIR 1996 SCC 2299. Which rules that such judges should be punishable under contempt. In landmark judgment in the case of ‘Dr. ‘X’ vs. Hospital ‘Z’ 1991 (1) ALL MR 469 (SC) Hon’ble Supreme Court observed that, “(para 43) ……………………… Moreover, where there is a clash of two Fundamental Rights, … which is her Fundamental Right under Article 21, the RIGHT which would advance the public morality or public interest, would alone be enforced through the process of Court, for the reason that moral considerations cannot be kept at bay and the Judges are not expected to sit as mute structures of clay, in the Hall, known as Court Room, but have to be sensitive, “in the sense that they must keep their fingers firmly upon the pulse of the accepted morality of the day”. 72 (See : legal Duties ; Allen) 30. Before concluding the complaint I would like to place the article of adv. , a practicing Lawyer of Supreme Court as under; “ Who Will Guard The Guardians: A Glimpse at the Confrontation of Justice Katju’s Contempt By: PawanReley | November 24, 2016 In an unprecedented action, the Supreme Court on 11.11.2016 in Court Room No. 6, through its Suo Motu Contempt Petition (Criminal) No. 4 & 5 OF 2016 on the blog published by Justice MarkandeyKatju dated 17th and 18th September, 2016- Titled ”Soumya Murder Case” and “The Intellectual Level of Supreme Court Judges” respectively, while issuing a Contempt Notice to the Ex Judge of the Hon’ble Supreme Court Justice MarkandeyKatju, has evidently created the unparallel history of the future. The said incident was reported by the Media in different words and angles but in one spirit. India Today reported it in the following words: “Is there anyone to escort Katju out of court, SC asks after ex-judge stirs drama.” (India Today, New Delhi, November 12, 2016 | UPDATED 07:58 IST) The Hindu exposited it as, “At one point, when Justice Katju continued to protest, Justice Gogoi asked security personnel to escort the retired judge out of the packed courtroom amid 73 chants of “wrong, wrong, wrong” from lawyers”. (The Hindu, Updated: November 12, 2016 01:20 IST) Press Trust of India News set forth it as, “Justice Gogoi warned him saying don’t provoke us any more to which Katju said you are provoking me by this type of threat. You requested me to come here and assist you.” (Press Trust of India News, Updated: November 12, 2016). Rediif.com reported it in the following words: “High drama in SC as Katju is escorted out after heated exchange with judges”. (Rediif.com , November 11, 2016 19:04 IST) A slight anatomy of the said prefatory reports of Media which have attracted the sans emotion and sans populist perception of many, if true in toto, axiomatically frescoes catena of pragmatic questions of law which are still unknown to many in the legal sodality. One of which can eminently be emanated, viz.: Whether your Lordships of the Hon’ble Supreme Court, while being provoked by the Statements of the Justice Katju in the discharge of their judicial functions, asking someone to escort him out of court or smashing his reputation as he has already bartered it, went anathema to the well settled law enunciated by the Hon’ble Supreme Court? The analysis of the said question is in two parts. First, it encapsulates the law laid down by the Hon’ble Supreme Court on the conduct of the Hon’ble judges/justices in the discharge of their judicial functions. 74 Second, it establishes through the judicial precedents that how Court should be cautious in making any remarks on anyone disparaging his or her reputation. It also evinces the effect of going against the law laid down by the Hon’ble Supreme Court by the Judges of the Supreme Court themselves and its remedy per se. Judicial Vetting On The conduct of the Hon’ble Judges: Before going into the law laid down by the Hon’ble Supreme Court of India in this regard, one may profitably disgorge a passage of Mr. Justice Frankfurter engrafted under ‘A Heritage for all Who Love the Law,’ 51 A.B.A.J. 330, 332 (1965) undraping the exercise of judicial duty in discharge of Judicial Function, Viz.: “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.” Further, Mr. Justice Frankfurter in Foreword, to Memorial issue for Robert H. Jackson, 55 Columbia Law Review (April, 1955) P. 436 postulated on the Justice’s functioning in the Court in the following words: “What becomes decisive to a Justice’s functioning on the Court in the large area within which his individuality moves is his general attitude towards law, the habits of mind that he has formed or is capable of unforming, his capacity for 75 detachment, his temperament or training for putting his passion behind his judgment instead of in front of it.” In this context, Bhagwati, CJ in the case of State of M.P. v. NandlalJaiswal, (1986) 4 SCC 566, while observing on the harsh language used by the judges, held to the following effect: “We may observe in conclusion that judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice.” Mr. Justice Shetty, K. in the case of A.M. Mathur v. Pramod Kumar Gupta and others, (1990) 2 SCC 533 while setting forth the connection between the Judicial restraint and discipline in the administration of justice held in the following terms: “…Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be 76 called judicial respect; that is, respect by the judiciary. Respect to those who come before the Court as well to other co-ordinate branches of the State, the Executive and Legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process. The Judges Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legit- imate the use of power by other officials. The Judges have the absolute and unchallenged control of the Court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses….” Hon’ble Supreme Court recently in the case Om PrakashChautala Vs. KanwarBhan, (2014) 5 SCC 417 while criticizing the adverse remarks made by the Judge of the lower Court held in the following terms: “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…” Judicial Adverse Remarks Vis-À-Vis Right To 77 Reputation: Judicial Precedents: This part of analysis can exquisitely be broached from the Blackstone’s commentary of the laws of England, Vol- I (IVth Edition), where it has been stated at page 101 that the right of personal security consists in a person’s legal and uninterrupted enjoyment of his life, his limbs, his body, his health and his reputation. Mr. Deepak Misra J. in Om PrakashChautala v. KanwarBhan, (2014) 5 SCC 417, Para. 1 magnificently explicated the ambit of the word “Reputation” in the following terms: “Reputation is fundamentally a glorious amalgam and unification of virtues which makes a man feel proud of his ancestry and satisfies him to bequeath it as a part of inheritance on the posterity. It is a nobility in itself for which a conscientious man would never barter it with all the tea of China or for that matter all the pearls of the sea. The said virtue has both horizontal and vertical qualities. When reputation is hurt, a man is half-dead. It is an honour which deserves to be equally preserved by the down trodden and the privileged. The aroma of reputation is an excellence which cannot be allowed to be sullied with the passage of time. The memory of nobility no one would like to lose; none would conceive of it being atrophied. It is dear to life and on some occasions it is dearer than life. And that is why it has become an inseparable facet of Article 21 of the Constitution. No one would like to have his reputation dented. 78 One would like to perceive it as an honour rather than popularity. When a court deals with a matter that has something likely to affect a person’s reputation, the normative principles of law are to be cautiously and carefully adhered to. The advertence has to be sans emotion and sans populist perception, and absolutely in accord with the doctrine of audialterampartem before anything adverse is said.” The case of D.F. Marion v. Davis, 55 American Law Reports, page 171 which was cited in concatenation of Indian Judgments including in KiranBedi v. Committee of Inquiry and another, (1989) 1 SCC 494, Para. No. 25 had stated, viz.: “The right to enjoyment of a private reputation, unassailed by malicious slander is of ancient origin, and is necessary to human society. A good reputation is an element of personal security, and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property.” The Hon’ble Supreme Court in the case of Umesh Kumar v. State of Andhra Pradesh and another, (2013) 10 SCC 591, observed in the following words: – “Personal rights of a human being include the right of reputation. A good reputation is an element of personal security and is protected by the Constitution equally with the right to the enjoyment of life, liberty and property. Therefore, it has been held to be a necessary element in regard to right to life of a citizen under 79 Article 21 of the Constitution. The International Covenant on Civil and Political Rights, 1966 recognises the right to have opinions and the right to freedom of expression under Article 19 is subject to the right of reputation of others.” Mr. Deepak Mishra J. in the case of MehmoodNayyarAzam v. State of Chhattisgarh and others, (2012) 8 SCC 1 has observed the interrelation of Human dignity and reputation in the following terms: “..The reverence of life is insegregably associated with the dignity of a human being who is basically divine, not servile. A human personality is endowed with potential infinity and it blossoms when dignity is sustained. The sustenance of such dignity has to be the superlative concern of every sensitive soul. The essence of dignity can never be treated as a momentary spark of light or, for that matter, “a brief candle”, or “a hollow bubble”. The spark of life gets more resplendent when man is treated with dignity sans humiliation, for every man is expected to lead an honourable life which is a splendid gift of “creative intelligence”. When a dent is created in the reputation, humanism is paralysed. There are some megalomaniac officers who conceive the perverse notion that they are the `Law’ forgetting that law is the science of what is good and just and, in very nature of things, protective of a civilized society. Reverence for the nobility of a human being has to be the corner stone of a body 80 polity that believes in orderly progress. But, some, the incurable ones, become totally oblivious of the fact that living with dignity has been enshrined in our Constitutional philosophy and it has its ubiquitous presence, and the majesty and sacrosanctity dignity cannot be allowed to be crucified in the name of some kind of police action.” In the case of VishwanathAgrawal v. SarlaVishwanathAgrawal, (2012) 7 SCC 288, the Hon’ble Supreme Court, while dealing with the aspect of reputation, observed that reputation is not only the salt of life, but also the purest treasure and the most precious perfume of life. It is extremely delicate and a cherished values this side of the grave. It is a revenue generator for the present as well as for the posterity. After scanning the anatomy of the laws laid down by the Hon’ble Court and different principles set out by the eminent jurist, it is thus evident, that if the aforesaid media reports were true in toto, then your Lordships of the Hon’ble Supreme Court, while being provoked by the Statements of the Justice Katju in the discharge of their judicial functions and asking someone to escort him out of Court, have gone anathema to the well settled law enunciated by the Hon’ble Supreme Court on the Judge’s Conduct in the Court and Right to Reputation of the parties. However, the effect of going against the law laid down by the Hon’ble Supreme Court by the Judges of the 81 Supreme Court themselves is still unvoiced and silent. The hoi polloi in the democratic republic are aghast that their fundamental Right to Reputation enshrined under Article 21 of the Constitution of India, when affected by the judges of the Apex Court, Seems to be myth of their rights as projected by AshutoshBhagwat in his book “The Myth of Rights” (Oxford Publication). As maintained by the famous Latin legal maxim i.e. “Ubi Jus IbiRemedium” which means “where there is a right there is a remedy”, if the remedy is in non existence then the existence of the “rights” and “law supporting the rights” are also otiose. When the said laws enumerated in the judgments of the Hon’ble Supreme Court are not followed by the judges of the Hon’ble Supreme Court themselves, and if there is no remedy for the enforcement of the same, the “law” does not appear to be “law” but merely “Morality or Myth laid down by the Hon’ble Court”. The paramount question taking a rise here is that why there is no remedy against the Judges of the Hon’ble Supreme Court even if they violate fundamental rights or go against the precedents laid down by them or whether they never violate the fundamental rights at all or never go against the precedents laid down by them. It is due to the following pragmatic reasons: Hon’ble Judges, when perform the judicial functions better known as “judicial proceedings” are not amenable to Writ Jurisdiction engrafted 82 under the Constitution of India. [R. Antulay vs. R.S. Nayak and another (1988) 2 SCC 602]. Thus, no Writ Petition for violation of one’s fundamental rights can be filed against them or against any judicial proceeding. Hon’ble Judges are absolutely immune under the aegis of Judges Protection Act, 1985. Section 2 (1) of the Act provides, viz.: “No Court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function” However, Section 2 (2) of the same provides that Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force can take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge. It is to be noted that no remedy is left with the Person whose rights or fundamental rights are violated. Contempt proceedings cannot be initiated against the Judges of the Hon’ble Supreme Court and High Court under Contempt of Court Act, 1985. Though, Section 16 of the Contempt of Court Act provides Contempt by judge, magistrate or other person acting judicially but meaning of “judge” under this Section does not include the judges of 83 Hon’ble Supreme Court and High Court but merely “Subordinate Court”. [Harish Chandra v. S. Ali Ahmed, 1987 Cr LJ 320 (Pat)]. As far as the Contempt of Supreme Court is concerned, it is governed by “Rule to regulate proceedings for Contempt to the Supreme Court, 1975 G.S.R. 142, which contains sixteen rules in itself, however, no rule provides the “Contempt of Court by the Judges of the Supreme Court themselves”. Impeachment is not in the hand of party to the case and highly tedious and impractical procedure to give remedy to the party affected, thus not provided here. Ergo, the said problems in form of panic in people’s mind that who will guard the guardians, if the guardians themselves go against the law laid by them, can only be solved by the Guardians themselves through “Guardian Self Restraint” (Judicial Self Restraint). It is absolutely on the Guardians to maintain “law” as “law” under Article 141 of the Constitution and “right” as “right” under Part III of the Constitution or merely disgorge them as “myth” or “morality”. We certainly have full faith in the Guardians of our Constitution. Of course the Hon’ble Supreme Court of India is one of the most active Courts in the world when it come to the protection of fundamental, Constitutional and Human rights of the People. It is the Court which has liberalized the Locus Standi of the people and has permitted the public spirited persons to file a 84 writ petition for the enforcement of Constitutional and statutory rights of any other person or a class in form of “Public Interest Litigation”. There are hardly any field left including the prison, work, pension, environmental pollution and others, where the Hon’ble Supreme Court has not stepped into to protect the rights of the people. However, no one is impeccable in the world so are the judges. Thus, we all cannot escape from the observations of Felix Frankfurter, J., made on the Nature of Judicial Process of Supreme Court Litigation 98 Proceedings AM Phil Society 233 (1954), which provides that it is true that the judges are flesh and blood mortals with individual personalities and with normal human traits. Still what remains essential in judging is freedom from passion, judicial discipline, no heroism and no rhetoric. Therefore, the Hon’ble Judges of the Apex Court must act with sobriety, moderation and restrain themselves from being provoked and being trammeled to constitutional limitations must follow its own well settled principles in order to maintain faith and conviction in the Judiciary. Suffice it say, the right of reputation of the person until proven guilty must be respected at the fall of the hammer as it is revealed in Bhagavad Gita, Chapter 2, Verse No. 34, viz. Akīrtiṁchāpibhūtāni, kathayiṣhyantite ’vyayāmsambhāvitasyachākīrtirmaraṇādatirichyate (People 85 will speak of you as a coward and a deserter. For a respectable person, infamy is worse than death.) – Bhagavad Gita, Chapter 2, Verse No. 34.” 31. NECESSITY FOR FILING COMPLIANT 1. The complainant is filing this complaint as per his duty under Art.51A (h) of the Constitution of India as has been explained by Hon’ble Supreme Court in the case of Indirect Tax practitioners Association (2010) 8 SCC 251 . 2. The import law point/ratio laid down by Hon’ble Supreme Court is : At this juncture, it will be apposite to notice the growing acceptance of the phenomenon of whistleblower. A whistleblower is a person who raises a concern about wrongdoing occurring in an organization or body of people. Usually this person would be from that same organization. The revealed misconduct may be classified in many ways; for example, a violation of a law, rule, regulation and/or a direct threat to public interest, such as fraud, health/safety violations and corruption. Whistleblowers may make their 86 allegations internally (for example, to other people within the accused organization) or externally (to regulators, law enforcement agencies, to the media or to groups concerned with the issues). Most whistleblowers are internal whistleblowers, who report misconduct on a fellow employee or superior within their company. One of the most interesting questions with respect to internal whistleblowers is why and under what circumstances people will either act on the spot to stop illegal and otherwise unacceptable behavior or report it. There is some reason to believe that people are more likely to take action with respect to unacceptable behavior, within an organization, if there are complaint systems that offer not just options dictated by the planning and controlling organization, but a choice of options for individuals, including an option that offers near absolute confidentiality. However, external whistleblowers report misconduct on outside persons or entities. In these cases, depending on the information's severity and nature, whistleblowers may report 87 the misconduct to lawyers, the media, law enforcement or watchdog agencies, or other local, state, or federal agencies. In our view, a person like the respondent can appropriately be described as a whistleblower for the system who has tried to highlight the malfunctioning of an important institution established for dealing with cases involving revenue of the State and there is no reason to silence such person by invoking Articles 129 or 215 of the Constitution or the provisions of the Act. What the respondent projected was nothing but true state of the functioning on administrative side and to some extent on judicial side. By doing so, he had merely discharged the constitutional duty of a citizen enshrined in Article 51A(h). 3) it is a fundamental right of citizens of this country to have a clean incorruptible judiciary, legislature, executive and other organs and in order to achieve this fundamental right, every citizen has a corresponding duty to expose corruption wherever he finds it, whenever he 88 finds it and to expose it if possible with proof so that even if the State machinery does not act and does not take action against the corrupt people when time comes people are able to take action. Chanakaya in his famous work 'Arthshastra' advised and suggested that honesty of even judges should be periodically tested by the agent provocateurs. I consider that the duties prescribed by the Constitution of India for the citizens of this country do permit citizens to act as agent provocateurs to bring out and expose and uproot the corruption I consider that one of the noble ideals of our national struggle for freedom was to have an independent and corruption free India. The other duties assigned to the citizen by the Constitution is to uphold and protect the sovereignty, unity and integrity of India and I consider that sovereignty, unity and integrity of this country cannot be protected and safeguarded if the corruption is not removed from this country. - I consider that a country cannot be defended only by taking a gun and going to border at the time of war. The country 89 is to be defended day in and day out by being vigil and alert to the needs and requirements of the country and to bring forth the corruption at higher level. The duty under Article 51A(h) is to develop a spirit of inquiry and reforms. The duty of a citizen under Article 51A(j) is to strive towards excellence in all spheres so that the national constantly rises to higher level of endeavour and achievements I consider that it is built-in duties that every citizen must strive for a corruption free society and must expose the corruption whenever it comes to his or her knowledge and try to remove corruption at all levels more so at higher levels of management of the State. ( vide : AniruddhaBahalVs.State 2010(119)DRJ102) That the Country is not only defended by fighting at the boarder but 32. PRAYER:- Under these circumstances it is humbly prayed that; i) Direction be given to C.B.I. for taking action against Justice RanjanGogoi, Justice Prafulla C. Pant & Justice Uday U.Lalit. under sec.166, 218, 219 r/w 120(B) & 90 34 of I.P.C. for acting contrary to law , which is laid down by Hon’ble Supreme Court in Devender Singh Bhullar’s case reported at 2011 [14] SCC 770 , and hearing the case where they were disqualified to hear the case as personal allegation were made against themself. And also misusing the power by issuing contempt notice to Justice MarkandeyaKatju on 11th Nov 2016. OR ii) Granting sanction to applicant to launch prosecution against the three judges in view of sec.197of Cr. P.C, and Judicial officer Protection act etc. iii) Direction be given to appropriate authority Advocate General of India and others to initiate appropriate proceeding under contempt of courts Acts against the above said three judges, as prosecution of offender is obligation of the Govt. iv) Direction be given to appropriate authority to place the matter before Chief Justice of India in view of “In House Procedure” with a request to not to assign any work to the above said judges, till the completion of enquiry against them . 91 v) Direction be given to initiate appropriate proceedings for removal of Justice RanjanGogoi, Justice Prafulla C.Pant &Justice Uday U. Lalit for their proved incapacity to understand and follow the law, misbehavior and criminal offences committed by them and contempt of Hon’ble Supreme Court by them. vi) Direction be given to Justice Ranjan Gogoi, Justice Prafulla C.Pant & Justice Uday U. Lalit , to Resign from his Post as per Point No. 7(i) of In House Procedure and also in view of the mandatory Guidelines of Hon. Supreme Court in the Veerswami’s Case (1991) 3 SCC 655(Constitution Bench), as the Misconduct, Criminal offences and Incapacity of Justices is proved ex facie . vii) Direction be given to initiate appropriate proceeding for recovering of all the amount/ payments, salary taken by these incompetent judges. viii) Direction be given for registering a Case under sec.409 of I.P.C. for misappropriation of public property and misusing the time and money of the Supreme Court for settling their personal scores. 92 And for this act of Justice, the Applicant and whole nation will remain grateful.
