Madhya Pradesh High Court
Paras Saklecha vs Shri Justice A.M. Khanvilkar on 1 December, 2015
Author: K.K. Trivedi
Bench: K.K. Trivedi
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Contempt Petition No :: 1902 of 2015
Paras Saklecha
- V/s -
Shri Justice A.M. Khanwilkar,
Chief Justice, High Court of MP
Present : Hon'ble Shri Justice Rajendra Menon.
Hon'ble Shri Justice K.K. Trivedi.
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Applicant appears in person.
Shri Ravish Agrawal, learned Advocate General,
Appears to assist the Court.
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Whether approved for reporting: Yes / No.
ORDER
01/12/2015 The applicant, who had filed a Public Interest Litigation before this Court being Writ Petition No.8810/2015, bringing to the notice of this Court the alleged illegalities, irregularities and lack of transparency in the DMAT Examination conducted on 17.6.2015 by the Association of Private Medical and Dental Colleges (hereinafter referred to as „APMDC‟) for admission to Private Medical Colleges, has filed this application alleging that certain utterances made by the Chief Justice of this Court while hearing the writ petition amounts to contempt and, therefore, he wants action to be taken.
2- This application was filed before the Indore Bench of this Court and the matter is placed for consideration before this Bench as Contempt Petition No :: 1902 / 2015 2 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
ordered by Hon‟ble the Chief Justice, who had recused himself from hearing the matter.
3- We had taken up the matter for consideration on 28.10.2015, when the applicant and his counsel were absent inspite of notice. Accordingly, the matter was adjourned to 5.11.2015, on which date Shri A.M. Mathur, Senior Advocate, alongwith Shri Abhinav Dhanodkar appeared for the applicant. The applicant was also present. An application being I.A. No. 14623/2015, seeking recall of the order passed on 28.10.2015 was filed and after hearing learned Senior Advocate, the application was disposed of. After the application was disposed of, learned Senior Advocate was directed to address this Court on the question of admission. Learned Senior Advocate, expressed his inability to address us on the question of admission and wanted adjournment for making submission. We allowed the prayer and with the consent of the counsel representing the applicant and the learned Advocate General, the matter was listed for hearing today. Today, when the matter was taken up, the applicant vide I.A. No.15711/2015, sought for adjournment. We have rejected the application by passing a detailed order. Thereafter, we heard Shri Ravish Agrawal, learned Advocate General, and gave opportunity to the applicant to address us, but he refused to do so and sought for adjournment.
4- The applicant has submitted various objections to the administrative orders passed, in the matter of listing of cases. These objections are available on record and we are required to consider these objections also.
5- Accordingly, before adverting to consider the contentions on merit, we propose to deal with the objections raised. The applicant has raised three objections, which have to be addressed at the very outset.
6- The first objection is with regard to hearing of the matter at the Principle Seat, Jabalpur. Applicant wants the matter to be heard at the Indore Bench, as it is not possible for him to come to Jabalpur for Contempt Petition No :: 1902 / 2015 3 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
hearing. That apart, he contends that no Advocate at Jabalpur is willing to take up his matter.
7- Apart from the fact that Shri A.M. Mathur, Senior Advocate, appeared for the applicant on 5.11.2015, we find that applicant has been regularly filing writ petitions, in public interest, at the Principle Seat, Jabalpur and the following cases filed by him - Writ Petition Nos.6622/2015, 8810/2015 and 17232/2015, are being heard at Jabalpur. He is regularly appearing in these cases and is also assisted by Advocates from Jabalpur, including Senior Advocates. Apart from this factual aspect, hearing of the cases in the Principle Seat at Jabalpur and the Benches at Gwalior and Indore are governed by statutory provisions and orders passed by the Hon‟ble Chief Justices from time to time in the matter of assignment of work and hearing of matters in various benches and the Principle Seat and the High Court Rules of 2008. 8- Hon‟ble the Chief Justice - Justice R.V. Raveendran (as he then was), had passed an order on 3.8.2005 exercising his powers, which reads as under:-
" In suppression of orders of my predecessor dated 25.04.1981 (Endt. No.1-8-4/56 Pt.VII) and dated 05.08.1993 (Endt. No.108-4/56 Pt.VII) and in accordance with order of my predecessor dated 3.2.1976 issued under proviso to the Notification No.16-20/68-Judl-III, dated November 28, 1968, issued by the President under Section 51(2) of the States Reorganization Act, 1956 (36 of 1956), I hereby order that:-
(1) All cases instituted by or against any High Court Judge of Madhya Pradesh or against Registrar General, Registrar, Additional Registrar, Deputy Registrar of this Court, relating to any matter, (2) all cases relating to selection or appointment of a Judicial officer.
Contempt Petition No :: 1902 / 2015 4 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
(3) all cases instituted by or against a Judicial Officer or Ex Judicial Officer of Madhya Pradesh relating to his or her service.
(4) all cases instituted by or against an employee of High Court or District Court relating to his or her service,
- Shall be heard in the Principal Seat at Jabalpur. This order shall also apply to pending cases.
Sd/-
R.V. RAVEENDRAN CHIEF JUSTICE 3-8-2005"
9- In view of the aforesaid direction as contained in Clause (1) above, with regard to listing of cases, as these proceedings are against a sitting Judge of the Madhya Pradesh High Court, it has to be heard at the Principle Seat, Jabalpur and, therefore, the office after taking note of the same having listed the case at the Principal Seat, Jabalpur, has not committed any error.
10- The objection of the applicant with regard to hearing of the matter at Jabalpur in the light of the aforesaid principle does not call for any consideration and has to be rejected.
11- That apart, the High Court Rules, 2008 contemplates a provision under Chapter IV Rule 20 which goes to show that if a contempt proceeding arises out of an any interlocutory or interim order passed in a pending case, then the contempt application has to be heard alongwith the pending main case before the same Bench where the main case has to be listed. Even though the words used in the Rule are "interlocutory or interim orders passed", the import of the Rule and the intention of the Rule makers are, that if any contempt proceeding arise out of a case which is pending i.e... main case, then the contempt proceeding has to be heard alongwith the pending main case before the same Bench, where the main case is to be listed as per the assignment ordered by the Hon‟ble Chief Justice.
Contempt Petition No :: 1902 / 2015 5 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
12- If the said rule is implemented in this case, it is clear that this is a case where this contempt arises out of certain facts stated, which arose during the proceedings of the Writ Petition and as the main case W.P. No.8810/2015 is pending at the main seat at Jabalpur, in accordance to the High Court Rules this case has to be listed alongwith the main case before the same Bench where the main case has to be listed as per Roster and as per this Rule the main case W.P. No.8810/2015 is being heard by this Bench.
13- Accordingly, as per the High Court Rules also, listing of the matter at Jabalpur, is proper.
14- The second objection raised was that this proceeding has to be registered as a criminal contempt proceeding and the act of the office in registering it and treating it as a civil contempt is not proper. 15- In this regard, if we go through the petition filed, it is termed as a petition filed under Article 215 of the Constitution. A criminal contempt is filed under section 14 read with section 15 of the Contempt of Courts Act, and there is nothing to indicate that this contempt application is filed as a criminal contempt under section 14 read with section 15, of the Contempt of Courts Act. Even the procedure contemplated not only under the Contempt of Courts Act, but even under the High Court Rules for filing of a criminal contempt has not been followed.
16- That apart, under the High Court Rules, 2008 Chapter II Rule 7, it is contemplated that if a contempt application is filed under Article 215 of the Constitution, it has to be treated as a civil contempt and decided in accordance to the procedure contemplated for hearing of a civil contempt. As this is an application filed under Article 215 of the Constitution, and has been registered correctly as a civil contempt in accordance to the High Court Rules. Accordingly, the second objection of the application is also unsustainable.
17- The third objection is with regard to hearing of the matter by one of us, namely - Rajendra Menon, J; it is stated that when the contempt application was filed and it was transferred from Indore to Contempt Petition No :: 1902 / 2015 6 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
Jabalpur, the non-applicant had some discussions with Rajendra Menon, J and a Senior Judge of this Court. Apart from the fact that this is wholly incorrect and a mischievous statement made, the principle for recusal of a Judge in the matter of hearing of a case has been subject matter of consideration by the Hon‟ble Supreme Court in various cases. In the case of R.K. Anand Vs. Registrar, Delhi High Court 2009(8) SCC 106, an allegation was made by Shri R.K. Anand to say that one of the Judges hearing the matter namely, Justice Manmohan Sarin should not hear the matter for various allegations made therein. 18- The law with regard to recusal and the principle governing recusal by a Judge was considered by Justice Manmohan Sarin, who decided the matter and rejected the prayer in the following terms:-
" The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear and fervour, affection or ill will while upholding the Constitution and the laws. In a case where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting, Bench preference or browbeating the court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."
19- This observation of Justice Manmohan Sarin was again considered by the Supreme Court in paragraphs 262, 263 and 264, in the case of R.K. Anand (supra) and it was held as under:
"262. Having thus dealt with the rest of the allegations made in the recusal application, the order, towards its end, said something which alone was sufficient to reject the request for recusal. It was pointed out that the applicant had a flourishing practice; he had been frequently appearing in the Court of Sarin, J, ever since he was appointed as a Judge and for the past twelve years was getting orders, both favourable and unfavourable, for his different clients. He never complained of any unfair treatment by Sarin, J, but recalled his old „hostility‟ with the Judge only after the notice was issued to him.
Contempt Petition No :: 1902 / 2015 7 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
263. In the order the Judge concerned further observed-
xxx xxx xxx The above passage, in our view, correctly sums up what should be the court‟s response in the face of a request for recusal made with the intent to intimidate the court or to get better of an „inconvenient‟ Judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way to frustrate or obstruct the course of justice.
264. We are constrained to pause here for a moment and to express grave concern over the fact that lately such tendencies and practices are on the increase. We have come across instances where one would simply throw a stone on a Judge (who is quite defenceless in such matters) and later on cite the gratuitous attack as a ground to ask the Judge to recuse himself from hearing a case in which he would be appearing. Such conduct is bound to cause deep hurt to the Judge concerned but what is of far greater importance is that it defies the very fundamentals of administration of justice. A motivated application for recusal, therefore, needs to be dealt with sternly and should be viewed ordinarily as interference in the due course of justice leading to penal consequences."
(Emphasis supplied) 20- Similar prayer for recusal made was considered in the case of Subrata Roy Sahara Vs. Union of India and others, (2014) 8 SCC 470, and the principle laid down in the case of R.K. Anand (supra) was reiterated and the following observations have been made with regard to recusal by a Judge.
"11. This is certainly not the first time when solicitation for recusal has been sought by learned counsel. Such a recorded peremptory prayer, was made by Mr. R.K. Anand, an eminent Senior Advocate, before the High Court of Delhi, seeking the recusal of Mr. Justice Manmohan Sarin from hearing his personal case. Mr. Justice Manmohan Sarin while declining the request made by Mr. R.K. Anand, observed as under:
"The path of recusal is very often a convenient and a soft option. This is especially so since a Judge really has no vested interest in doing a particular matter. However, the oath of office taken under Article 219 of the Constitution of India enjoins the Judge to duly and faithfully and to the best of his knowledge and judgment, perform the duties of office without fear or favour, affection or ill will while upholding the constitution and the laws. In a case, where unfounded and motivated allegations of bias are sought to be made with a view of forum hunting / Bench preference or brow-beating the Contempt Petition No :: 1902 / 2015 8 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
Court, then, succumbing to such a pressure would tantamount to not fulfilling the oath of office."
The above determination of the High Court of Delhi was assailed before this Court in R.K. Anand v. Delhi High Court, (2009) 8 SCC
106. The determination of the High Court whereby Mr. Justice Manmohan Sarin declined to withdraw from the hearing of the case came to be upheld, with the following observations:
"263. The above passage, in our view, correctly sums up what should be the Court's response in the face of a request for recusal made with the intent to intimidate the court or to get better of an `inconvenient' judge or to obfuscate the issues or to cause obstruction and delay the proceedings or in any other way frustrate or obstruct the course of justice."
(emphasis supplied) In fact, the observations of the High Court of Delhi and those of this Court reflected, exactly how it felt, when learned counsel addressed the Court, at the commencement of the hearing. If it was learned counsel‟s posturing antics, aimed at bench-hunting or bench-hopping (or should we say, bench-avoiding), we would not allow that. Affronts, jibes and carefully and consciously planned snubs could not deter us, from discharging our onerous responsibility. We could at any time, during the course of hearing, walk out and make way, for another Bench to decide the matter, if ever we felt that, that would be the righteous course to follow. Whether or not, it would be better for another Bench to hear this case, will emerge from the conclusions, we will draw, in the course of the present determination. "
21- Finally, recently while considering the question of constitutional validity of the 99th Amendment Act, 2014 in the case of Supreme Court Advocates on Record Vs. Union of India, 2015 AIR SCW 5457, the question was again considered and in their orders passed, Hon‟ble Justice J.S. Kehar and Hon‟ble Justice Shri Chelameswar have again considered the question at length. Hon‟ble Justice Shri Chelameswar in his detailed order, while dealing with the matter, from paragraph 11 onwards has discussed the principle in detail. He has referred to various English Laws and various principle on recusal by eminent jurist in legal proceedings, and finally in paragraph 26, various principle have been laid down. Similarly, Hon‟ble Justice J.S. Kehar has also considered the same question in his order dated 16.10.2015 and the observations made by My Lord Justice Kehar reads as under:
"18. ..... If I were to accede to the prayer for my recusal, I would be initiating a wrong practice, and laying down a wrong Contempt Petition No :: 1902 / 2015 9 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
precedent. A Judge may recuse at his own, from a case entrusted to him by the Chief Justice. That would be a matter of his own choosing. But recusal at the asking of a litigating party, unless justified, must never to be acceded to. For that would give the impression, of the Judge had been scare out of the case, just by the force of the objection. A Judge before he assumes his office, takes an oath to discharge his duties without fear of favour. He would his oath of office, if he accepts a prayer for recusal, unless justified. It is my duty to discharge my responsibility with absolute earnestness and sincerity. It is my duty to abide by my oath of office, to uphold the Constitution and the laws. My decision to continue to be part of the Bench, flows from the oath which I took, at the time of my elevation to this Court."
22- If we analyse the objections raised in this regard, relating to recusal of one of us, we find the same to be untenable nor is the prayer made permissible in view of the principle of law, as laid down and detailed hereinabove. The only reason indicated for recusal is with regard to meeting with Hon‟ble the Chief Justice. Apart from the fact that this is factually incorrect, the applicant has not indicated as to how and on what basis such an assertion has been made by him in the application. It is nothing but a mischievous and deliberate act on the part of the applicant which we cannot appreciate.
23- Having considered and rejected the three objections, we may now consider the question as to whether cognizance of the matter is to be taken or not.
24- Today, learned Advocate General argued elaborately with regard to maintainability of this application. Learned Advocate General invited our attention to section 16 read with section 9, of the Contempt of Courts Act, 1971; the immunity available to Judges of the Court of record and by placing reliance on the following judgments, and argued that section 16(1) of the Contempt of Courts Act does not apply to Judges of a Court of record, who are excluded from the contempt jurisdiction and, therefore, learned Advocate General submitted that this application is not maintainable. The judgments relied upon by learned Advocate General are State of Rajasthan Vs. Prakash Chand and others, AIR 1998 SC 1344; and, Harish Chandra Mishra Vs. Justice S. Ali Ahmed, AIR 1986 PAT 65 (DB).
Contempt Petition No :: 1902 / 2015 10 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
25- Shri Ravish Agrawal, learned Advocate General, thereafter submitted that as no prior approval of the Advocate General is obtained as required under section 15 of the Contempt of Courts Act, this application is not maintainable. Learned Advocate General argued that no prayer is made for taking suo motu cognizance and placing reliance on the following judgments, submitted that the application is liable to be dismissed. The judgments relied upon are : Bal Thackrey Vs. Harish Pimpalkuthe and Others, (2005) 1 SCC 254; Biman Basu Vs. Kallok Guha Thakurta and another, (2010) 8 SCC 673; P.N. Duda Vs. Shiv Shankar and others, (1983) 3 SCC 167; Bijayini Das Vs. Loknath Mishra, (2005) 9 SCC 194; Amicus Curiae Vs. Prashant Bhushan, (2010) 7 SCC 592; and, Muthu Karuppan Vs. Parithi IIamvazhuthi (2011) 5 SCC 496.
26- We have considered the submissions made by Shri Ravish Agrawal, learned Advocate General, and have also considered the assertions made by the applicant in the application; the objections raised by him and various material available on record. On going through the averments made in the application, we find that the applicant has taken objection to certain utterances said to have been made by the Chief Justice (respondent). The utterances are detailed in paragraph 2 of the application. The remaining averments made from paragraph 3 onwards are reports said to have been published in newspapers referred to in paragraph 3. The so called utterances as indicated in the newspaper reports cannot be taken note of, in the absence of there being any proof with regard to the same being made in the Court by the respondent, in the absence of the publishers, editors and authors of the newspaper report being implicated as parties and without any affidavit by them to show the basis and source of information based on which the report is published. Accordingly, we cannot take cognizance of the so called allegations made based on the newspaper report, as are contained in paragraph 3.
Contempt Petition No :: 1902 / 2015 11 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
27- Thereafter, the averments made in paragraph 4 onwards are legal in nature, in support of the contention of the applicant to say that the utterances amount to contempt.
28- During the course of hearing, certain factual aspects with regard to what transpired when the proceedings were held on 16.10.2015 have been narrated to us and one of us - Justice K.K. Trivedi, who was present as a Member of the Bench when the hearing took place on 16.10.2015 also indicated as to what actually transpired on 16.10.2015 and what we note is that W.P. No.8810/2015 was filed as a Public Interest Litigation and as indicated hereinabove, the applicant had challenged the manner in which the Common Entrance Test was conducted by APDMC. At the instance of the applicant, the Court intervened; issued directions from time to time and infact the entire Common Entrance Test was conducted by the APDMC i.e.... the Association of Private Medical and Dental Colleges on the basis of various directions issued by the Bench, which heard the matter from time to time, and finally under the supervision of the Court appointed Data Base Administrator - an independent person, the online entrance examination was held on 8.10.2015. The matter was scheduled to be heard on 15.10.2015 for reporting compliance with regard to conduct of examination on 8.10.2015.
29- On 15.10.2015, two reports were received from the Data Base Administrator with regard to the online examination conducted. According to the facts that have been unfolded, it is seen that on 15.10.2015, when the matter was taken at as the first matter on Board at 10.30 AM, applicant who was represented in the original W.P. No.8810/2015 by Shri A.M. Trivedi, learned Senior Advocate, appeared through his Counsel and tendered an affidavit in the Court pointing out large scale irregularities committed by APDMC in the conduct of the examination.
30- Learned Senior Advocate was informed that the Court has received two reports from the Court appointed Date Base Administrator. APDMC which was monitoring the examination is also submitting an Contempt Petition No :: 1902 / 2015 12 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
independent report through their counsel and the Court indicated to the parties present, particularly applicant‟s Senior Advocate, that the reports indicate and unfold the entire event, which took place during the examination and the manner in which the entire process of examination was conducted. It was pointed out by the Judge (i.e... the Chief Justice) of the Court that both the reports broadly mention that the online examination were successfully completed except for certain technical problems faced in two centres in Delhi, which was also said to have been rectified in due course and the examination concluded on the same day. After going through the report in detail, the Bench informed Shri A.M. Trivedi, learned Senior Advocate representing the applicant, that inspite of two reports received from an independent source should prevail in the normal circumstances, inspite thereof if the applicant was insisting on taking the affidavit on record, the Court may do so, but the applicant should disclose the source of information on the basis of which he is questioning the process of online examination conducted on 8.10.2015, and in case his plea made in the affidavit is rejected, consequences for irresponsible and unsubstantiated allegations made in the affidavit would follow.
31- It was pointed out by the Court that the applicant cannot be allowed to create a façade, to cause avoidable confusion about the process of examination. Learned Senior Advocate was also informed that if the applicant has any grievance in the manner in which the admission process has been undertaken, after declaration of the results of the online examination, this being an independent issue, shall be dealt with separately. The Court emphasized that the core issue to be decided immediately at that point of time was whether the examination as held can be questioned in any manner. The Court also indicated the importance and urgency in the matter, as the entire process of admission was to be completed before 30.9.2015 in accordance to the directives issued by the Supreme Court and the statutory regulations operating in this behalf.
Contempt Petition No :: 1902 / 2015 13 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
32- It was emphasized that further delay cannot be accepted. The larger public interest, interest of the students and the fact that more than 2000 medical seats in the State of MP being at stake for the Academic Session 2015-2016 was emphasized by the Court. Learned Senior Advocate was also informed that the Court has no hesitation in sharing the two reports received by the Court appointed Data Base Administrator with him and after going through the said reports, it was indicated that the applicant is free to make up his mind whether he wanted taking the affidavits on record. For examining this option, the Court adjourned the matter to 2.30 PM. The two reports were handed over to the counsel appearing for the parties and to the Amicus Curiae. 33- Certain observations were also made by the Court with regard to the interest of the applicant in getting publicity and not getting the issue adjudicated by the Court. The Court informed the Counsel that conduct of the applicant in rushing to the media people and making statements in the media on the previous occasion when the matter was sub judice was not a proper conduct and he was requested to warn the applicant. When these observations were made, the applicant even though represented by an Advocate on record and a Senior Advocate, stood next to his Advocate and made objectionable facial expression, disapproving the comments of the Court and this act of the applicant was nothing but bordering at mocking the Court. The applicant was also seen forcing himself to address the Court, by passing his Senior Counsel. The Court, therefore, informed Shri A.M. Trivedi, Senior Advocate, to ask his client to go back and sit in the visitors‟ gallery and watch the proceedings from there. Learned Senior Advocate then informed the applicant, who was not convinced, and the applicant was free to watch the proceedings in public interest, the Court would proceed with the matter by taking assistance of the Amicus Curiae and Shri A.M. Trivedi, Senior Advocate. Infact, it is said that the Court did not address the applicant, it was only making observations to his counsel. 34- It seems that the applicant did not like all these proceedings and started behaving in a manner which could not be approved in a Contempt Petition No :: 1902 / 2015 14 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
Court of law. The applicant is a Former Mayor of an Elected Municipal Corporation and a Member of the Legislative Assembly, and according to the information received, he was not in a formal attire, but was casually dressed, with a bright yellow T-shirt, Jeans and a sports shoe. The applicant went back to the visitors‟ gallery when observed by the Court. Thereafter, when the matter was taken up at 2.30 PM, taking note of the fair manner in which the Examination was conducted, all the Advocates appearing for the parties and the Senior Advocate appearing for the applicant stated that at that point of time, there was no tangible or credible material to doubt the correctness of the reports submitted by the independent Court appointed observer and learned Senior Advocate for the applicant fairly stated before the Court that he has no interest in taking the affidavits on record and himself withdrew it. On this understanding the matter proceeded further and the crucial issue as to whether the admission process completed should be validated or not was discussed and certain orders passed, on the next day i.e... 16.10.2015. 35- All concerned, including applicant‟s counsel Shri A.M. Trivedi, expressed their satisfaction about the operative order passed in keeping the issue open and the same reads as under:
"21. We make it clear that the other issues - such as, irregularity in the actual admissions made by the respective Private Medical Colleges and the extent of involvement of APDMC in that behalf; also regarding non-cooperation by APDMC officials to the Court appointed Database Administrator during the re-examination conducted on 20.8.2015; and, about any irregularity noticed in respect of any specific case concerning the online examination held on 08.10.2015 and other related issues will be examined independently. For that, we defer this matter to 23rd November, 2015."
36- After these proceedings were held, the applicant has filed the present application on the allegations indicated in paragraph 2. In the Contempt Petition No :: 1902 / 2015 15 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
backdrop of the facts, as indicated hereinabove, it is clear that the observation made about attire of the applicant has not been properly mentioned by the applicant. It is clear that the observations were only made to inform the applicant about the manner in which he was conducting in the Court when he was represented by a Senior Advocate. 37- The contention of the applicant that the affidavit application was returned by the Court seems to be not correct. It was infact taken back by the applicant‟s counsel.
38- As far as the allegations made with regard to loud voice of the Bench is concerned, it is an admitted position that the applicant‟s counsel Shri A.M. Trivedi is hard of hearing and loudness of the voice was made so that observations of the Court are audible to Shri A.M. Trivedi.
39- Taking note of all these circumstances and the facts of the case, we have to say that formalities are hallmark and authenticity, and the act of the respondent/Judge as alleged in the contempt petition, if evaluated in the back drop of the facts, as have unfolded, we are convinced and we have no hesitation to hold that by no stretch of imagination, such an act can be termed as contempt of Court. The application seems to be wholly misconceived and we see no reason to interfere into the matter.
40- In the matter of considering the question of initiating action for contempt against Judges of a Court on record, Hon‟ble Supreme Court in the case of State of Rajasthan Vs. Prakash Chand and others, AIR 1998 SC 1344, considered the allegations made by a Sitting Judge against the Chief Justice and various other persons and while taking note of the fundamental principle of jurisprudence, regarding taking action against a Judge of a Court of record for any act done by him, in paragraph 41 and 42, the matter has been dealt with in the following manner:
"41. Even otherwise, it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against a Judge of a court of Record for a judicial act done by the Judge. The remedy of the aggrieved party against such an order is to Contempt Petition No :: 1902 / 2015 16 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
approach the higher forum through appropriate proceedings. This immunity is essential to enable the Judges of the Court of Record to discharge their duties without fear or favour, though remaining within the bounds of their jurisdiction. Immunity from any civil or criminal action or a charge of contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice. The following passage from Oswalds's Contempt of Court, 3rd Edn. 1993 (Reprint) in this behalf is apposite. "An action will not lie against a Judge of a Court of Record for a Wrongful commitment in the exercise of his judicial duties, any more than for an erroneous judgment(s). But the Divisional Court refused to strike out as disclosing no cause of action a statement of claim in an action for malicious prosecution brought against certain Judges of the Supreme court of Trinidad for having (as it was alleged) of their own motion, and without any evidence, caused the plaintiff to be prosecuted and committed to prison for an alleged contempt of the Supreme court in forwarding to the Governor of the Colony for transmission to the Queen in Council a petition of appeal complaining of the oppressive conduct of the defendants as Judges(t). At the trial of this case before Lord Coleridge, C.J., the jury found as regards one of the defendants that "he had overstrained "his judicial powers, and had acted in the administration of justice oppressively and maliciously to the "prejudice of the plaintiff and to the perversion of "justice". The jury assessed the damages at pounds 500. Notwithstanding the verdict, Lord Coleridge ordered judgment to be entered for the defendant. This judgment was affirmed by the Court of appeal, Lord Esher, M.R. in delivering the judgment of the Court, said. "if any Judge exercises his jurisdiction from "malicious motives, he has been guilty of a gross "dereliction of duty, " And after saving that a judge was liable to be removed from his office for such conduct, Lord Esher went on to say that the common law clearly was that no action lay against a Judge of a Court of Record "for doing something within his jurisdiction but "during it maliciously and contrary to good faith".
(Emphasis ours).
Thus no action could lie against the Chief Justice acting judicially for doing something within his jurisdiction even if the order is patently erroneous and unsustainable on merits. commenting upon the extent of immunity which the Judges of the superior courts must have for preserving independence of the judiciary, the authors of Salmond and Heuston on the Law Torts, 21st Edn. 1996 in Chapter XIX observe:
"A judge of one of the superior courts is absolutely exempt from all civil liability for acts done by him in the execution of his judicial functions. His exemption from civil liability is absolute, extending not merely to errors of law and fact, but to the malicious, corrupt, or oppressive exercise of his judicial powers. For it is better that occasional injustice should be done and remain unredressed under the cover of this immunity than that the independence of the judicature and the strength of the administration of justice should be weakened by the liability of judges to unfounded and vexatious charges of errors, malice, or incompetence brought against them by disappointed litigants -" otherwise no man but a beggar, or a fool, would be a judge."
(See Arenson Vs. Casson, Beckman Rutley & co. (1997) AC 405 at p.440, per Lord Fraser). (Emphasis supplied). Contempt Petition No :: 1902 / 2015 17 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
42. Even under the Judicial officers' protection Act 1985 immunity has been given to judicial officers in relation to judicial work done by them as well as for the judicial orders made by them. They statement of objects and reasons for introducing the Bill in relation to the 1985 Act which reads thus is instructive:
"Judiciary is one of the main pillars of parliamentary democracy as envisaged by the Constitution. It is essential to provide for all immunities necessary to enables Judges to act fearlessly and impartially in the discharge of their judicial duties. It will be difficult for the Judges to function if their actions in court are made subject to legal proceedings, either civil or criminal."
Section 16(1) of the Contempt of Court Act 1971 does not apply to the Judges of the court of record but only to the subordinate judiciary."
(Emphasis supplied) 41- Thereafter, this question was again considered while interpreting the meaning of the sentence „observations or remarks made by a Judge appearing in sub-section (2) of Section 16, and the question of taking action against a Judge of court of record. The Full Bench of the Patna High Court in the case of Harish Chandra Mishra Vs. Justice S. Ali Ahmed, AIR 1986 PAT 65 (FB) examined the question whether a contempt against a sitting Judge of a High Court is maintainable and after taking note of the language of sections 9 and 16, it has been held that action cannot be taken and it was held that a Judge of a court of record is not included within the meaning of the word „Judge‟ as appearing in section 16 of the Contempt of Courts Act. 42- This judgment of the Full Bench of Patna High Court was again considered by the Madras High Court in the case of M. Ranka Vs. Hon'ble Justice P.S. Mishra, (1992) 2 LW 110, and the Madras High Court agreeing with the view of the Patna High Court held that section 16 of the Contempt of Courts Act does not purport to enlarge the scope of the Contempt of Courts Act by including even „Judges‟ of the court of record.
43- Apart from the aforesaid, in view of the requirement of section 15 of the Contempt of Courts Act, 1971, as no prior permission of the Advocate General is obtained, this application itself is not maintainable. Absence of consent of the Advocate General and without Contempt Petition No :: 1902 / 2015 18 Paras Saklecha Vs. Shri Justice A.M. Khanwilkar, Chief Justice.
prayer for taking suo motu action as held by the Hon‟ble Supreme Court in the case of Bal Thackrey (supra), the contempt application is not maintainable.
44- That apart, in the case of P.N. Duda (supra), it has been held by the Supreme Court that before initiating action for contempt, advice and assistance of the Advocate General has to be availed of, as a mandatory requirement, absence of which renders the application liable for dismissal.
45- If we apply the aforesaid principle in the backdrop of the allegations levelled in this contempt application, we find that this contempt application itself is not maintainable. 46- In view of the aforesaid, we dismiss the application at this stage.
( RAJENDRA MENON ) ( K.K. TRIVEDI )
JUDGE JUDGE
Aks/-