Recall Application of order and Notice To J.Karnan(08.02.2017)(FIled)

IN THE SUPREME COURT OF INDIA

 

CRIMINAL ORIGINAL JURISDICTION

 

MISCELLANEOUS APPLICATION NO.          OF 2017

(DIARY NO.___________/2017)

IN

SUO MOTU CONMT.PET.(C)NO.1 OF 2017

 

Justice C.S. Karnan                                         … Applicant/  Alleged Contemnor

 

IN THE MATTER OF

Supreme Court of India

on its own motion                                            … Suo Moto

Versus

Justice C.S. Karnan                             … Original  Alleged Contemnor/Respondent

 

APPLICATION SEEKING RECALL OF ORDERS DATED 08/02/2107 PASSED BY THIS HON’BLE COURT CULMINATING IN THE ORDER DATED 9^TH MAY, 2017 CONVICTING THE APPLICANT FOR CRIMINAL CONTEMPT OF COURT AND SENTENCING HIM TO UNDERGO IMPRISONMENT FOR SIX MONTHS, PREFERRED BY THE PETITIONER THROUGH HIS COUNSEL.

 

TO

 

THE HON’BLE CHIEF JUSTICE AND

HIS COMPANION JUSTICES OF THE

HON’BLE SUPREME COURT OF INDIA

 

THE HUMBLE PETITION OF THE PETITIONER ABOVE NAMED

MOST RESPECTFULLY SHEWETH

 

It has become imperative for the Petitioner to institute the instant application, one unparallel in the legal history, since the Hon’ble Chief Justice of India (CJI) was pleased to take suo motu cognizance of a letter dated 23^rd January, 2017 addressed by the Petitioner to the Hon’ble Prime Minister seeking an investigation into allegations against corruption by certain Judges of the High Court of Judicature at Madras made by the Petitioner and to constitute a Bench of seven Judges to hear the same and by order dated 9th May, 2017 was pleased to convict the Petitioner for criminal contempt of Court and sentence him to undergo imprisonment for six months.  The Petitioner with utmost respect submits that the entire proceeding at the hands of the CJI in constituting the Seven-Judge Bench finally culminating in his conviction and sentence, as aforesaid, is without jurisdiction.  The reasons for the same are manifest.  It is only appropriate to extract below Section 2(c) of the Contempt of Courts Act, 1971 (the Act, for short) which defines “criminal contempt”:-

“2(c)   ‘criminal contempt’ means the publication (whether by words, spoken or written, or by signs, or by visible representation, or otherwise) of any matter or the doing of any other act whatsoever which-

(i) scandalizes, or tends to scandalize, or lowers or tends to lower the authority of, any court; or

(ii) prejudices, or interferes or tends to interfere with, the due course of any judicial proceeding; or

(iii) interferes or tends to interfere with, or obstructs or tends to obstruct, the administration of justice in any other manner;”

2. From a mere reading of the provision extracted above it is manifest that what could constitute a criminal contempt is any “publication” which scandalizes, or tends to scandalize, or lowers or tends to lower the authority of, any Court. There is a distinction between the words “Court” and “Judge”.  A Judge is not a Court, though without a Judge there could be no Court.  In addressing the letter in question to the Hon’ble Prime Minister and bringing to his notice certain corrupt practices resorted to by some Judges named in the said letter, the Petitioner did not commit any contempt.  The allegations contained in the said letter are against the Judges named therein and not against any Court – neither the High Court of Madras nor the Supreme Court.  If the said allegations are untrue, they would at the most amount to defamation which will entail an actionable right, both civil and criminal, in the Judges named in the said letter.  Under the laws of the land, the Judges named in the said letter have every right to proceed against the Petitioner under civil and criminal law.  However, none of them has chosen to do so for reasons better known to them.  Instead, the Hon’ble CJI was pleased to take suo motu cognizance, apparently invoking Section 15 of the Act.  The allegation against the Petitioner, as has been referred to above, having failed to meet the essential ingredients of Section 2(c) of the Act, the entire proceeding against him is not maintainable – sublato fundamento, cadit opus – the foundation being removed, the structure falls.
3. Under our constitutional scheme, High Courts are not subordinate to the Supreme Court; High Courts are as much independent as the Supreme Court is, though their orders could be judicially challenged in the Supreme Court, the latter being a Court of Appeal. It is well settled in law that orders of all Courts and Tribunals, be it the lowest or the highest, be it the Munsiff Court or the Supreme Court, if rendered in violation of the principles of natural justice, in violation or ignorance of express statutory provisions, are a nullity, being vitiated by errors apparent on the face of the record.  Such an order of a superior Court which is a nullity could be challenged before a Court which is judicially subordinate and no certiorari will lie.  In A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, the Supreme Court, while declining a writ of certiorari at the hands of a Bench of two Judges against an order of a Bench of five Judges made it clear that the order of the Five-Judge Bench, which was one rendered without jurisdiction, could be challenged before the High Court.  Section 15 of the Act does not invest in the Supreme Court any jurisdiction other than what is expressly provided therein, which could, at the best, invest in it a power to take suo motu criminal contempt of Court proceeding where any publication in whatever means scandalizes or tend to scandalize or lowers or tend to lower the authority of the Supreme Court or prejudices or interferes or tend to interfere with the due course of judicial proceeding.  The Petitioner, a Judge of the High Court of Calcutta, is not under any disciplinary jurisdiction of either the CJI or the Bench of Seven Hon’ble Judges constituted by the CJI, as in the instant case.  The Petitioner could be removed from office only “by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such removal on the ground of proved misbehaviour or incapacity.”  Section 15 of the Act, which alone could have been invoked for initiating the contempt of Court case against the Petitioner, for Section 14 which deals with the procedure where the contempt is on the face of the Supreme Court or the High Court could not have been invoked against the Petitioner.  Even assuming that the conduct of the Petitioner in addressing the letter to the Hon’ble Prime Minister alleging corruption against his Brother Judges, nay, securing enrolment based on fake law degree certificate, which was one of the allegations made by the Petitioner against Shri Justice Dhana Paul, since retired, that does not constitute a contempt of court at all.
4. Section 15 of the Act invests concurrent jurisdiction in the Supreme Court and High Courts.  If the said Section is to be understood as one investing jurisdiction on the supreme Court to initiate contempt of Court proceeding against a Judge of the High Court, then the High Court being not subordinate to the Supreme Court could also be said to be invested with the jurisdiction to invoke contempt of Court proceeding against a Judge of the Supreme Court, a proposition which is fraught with dire consequences.  In short, under the constitutional scheme and interpretation of the Act in consonance with the concept that a High Court is not subordinate to the Supreme Court and is as independent as the Supreme Court itself, subject to the rider that decisions of the High Courts on judicial side are amenable to appeal to the Supreme Court, a contempt of Court proceeding could not have been instituted against the Petitioner at all.  The Petitioner is, therefore, entitled to a declaration that the very notice dated 08/02/2017 issued against him under the Act and all further proceedings in furtherance thereof, culminating in the order dated 9th May, 2017, are unconstitutional and void.  A copy of the order dated 9^th  May, 2017 is produced as (Annexure P-1,From pages12 to 15).
5. The order dated 9^th May, 2017 was passed in the absence of the Petitioner.  The Petitioner’s arrest and committing him to prison is a fait accompli, no matter howsoever illegal and void the said order could.  The question, therefore, is what are the legal options open to the Petitioner to protect himself from the impending arrest and detention.  It is a fundamental principle of law that if an order of a Court, even of the highest Court of the land, is without jurisdiction, in violation of the principles of natural justice and in ignorance of express statutory provisions, nay, in other words, vitiated by errors apparent on the face of the record, such an order is a nullity, one which never ever existed in the eye of law, and the same could be challenged whenever and wherever is tried to be implemented.  This is the essence of the doctrine of nullity which finds enunciation in A.R. Antulay v. R.S. Nayak (cited supra), wherein it was held that the order of the Five-Judge Constitution Bench of the Supreme Court requesting the Chief Justice of the High Court of Bombay to designate a Judge of the High Court to conduct the trial against Shri.A.R.Antulay, while in terms of the Prevention of Corruption Act the trial could only have been conducted by a Judge of the Designated Court of the rank of a District Judge, from whose decision an appeal will lie to the High Court, was a nullity and could be impugned before the High Court.  Shri.A.R.Antulay adopted that course of action which, though the High Court declined, was upheld by the Supreme Court, holding that an order of even a Constitution Bench of the supreme Court, if rendered void ab initio, its validity could be questioned even before a forum which is judicially subordinate to the Supreme Court.  An order which is a nullity could be challenged by way of (a) of an appeal, if the statute provides for one, (b) a review which is inherent in so far as the Supreme Court and High Courts are concerned and (c) a collateral proceeding, namely, by way of a suit or a Writ Petition under Article 32/226 of the Constitution.
6. The Petitioner is entitled to seek a declaration that the order dated 9^th May, 2017 (Annexure P-1,From pages12 to 15) is a nullity before a competent Civil Court; so too before a High Court of competent jurisdiction; so too before this Hon’ble Court under Article 32 of the Constitution, though a collateral proceeding before a Civil Court or High Court may only be theoretically justified.  In the instant contempt of Court proceeding the Petitioner is a Respondent.  It is a fundamental principle of law that if one were to seek a declaratory remedy then that ought to be by an independent proceeding.  In other words, if the Petitioner were to seek a declaration that the order dated 9^th  May, 2017 is a nullity, he is duty bound to institute a petition to that effect and the order which is sought to be declared as a nullity at the hands of this Hon’ble Court under Article 32, though Article 32 makes no express reference about its power to grant a declaration.  This Hon’ble Court being the highest Court of the land is undoubtedly invested with the jurisdiction to grant such a declaration.  Therefore, the Petitioner is instituting a petition under Article 32 of the Constitution for a declaration that the entire proceeding at the hands of this Hon’ble Court against the Petitioner culminating in the order dated 9^th  May, 2017 is void ab initio.
7. As aforesaid, since the orders dated 9^th May, 2017  at the hands of this Hon’ble Court could be sought to be recalled, being rendered void ab initio, such a relief could be sought for even by instituting an application for recall, as the instant one.  There is no need to file an application for review in terms of Articles 137  and 145 read with the Rules framed by the Supreme Court because recall in terms of the said Rules is contemplated where a review of the judgment is contemplated where there has been a decision after the party is afforded a hearing.
8. The Act could not have been any application at all and the entire proceeding culminating in the order dated 9^th May, 2017 is a nullity.  Even assuming for mere argument’s sake that the Act is applicable and this Hon’ble Court has jurisdiction, then also the entire proceeding against the Petitioner is void ab initio since even the protection available to an alleged contemnor in terms of the Act has been denied to the Petitioner.  All that has been served upon the Petitioner is a copy of the notice/order dated 08/02/2017 by which he was asked to show cause as to why contempt of Court proceeding ought not to be initiated against him.  That was a mere notice; the said notice did not contain the allegations constituting the charge and the documents and materials based on which the allegations are founded.  Therefore the said notice is one incapable of being even replied to.  Even assuming that the Act is applicable against a High Court Judge, the Petitioner is entitled to be heard before a charge is framed.  In the instant case, the Petitioner is found guilty of contempt of Court without even a charge being framed.
9. It is a fundamental principle of law, as enunciated in Section 273,278,281,291, of The Code Of Criminal Procedure, 1973, that no trial could be conducted in the absence of an accused, much less he could be convicted and sentenced. Even if the accused has failed to appear, it is the duty of the prosecution and the Court to ensure the presence of the accused.  Trial, conviction and sentence in the absence of an accused and without securing his presence is unknown to criminal jurisprudence.
10. The concept that there is no vested right of appeal is a concept of the bygone days. It is universally accepted that statutes of all countries ought to provide for one forum of appeal in matters of criminal jurisprudence.  The United Nations Resolutions also, to which India is a party, also require so.  The judgments of the Supreme Court in Dilip S. Dahanukar v. Kotak Mahindra Co. Ltd. and Anr. II (2007) CCR 171 (SC) : II (2007)  DLT (Crl.) 291 (SC) : (2007) 6 SCC 528 and  V. C. Shukla vs State Through C.B.I [1980 AIR 962, 1980 SCR (2) 380, 1980 SC1382  (81,110),   1981 SC 723            (9),   1988 SC 922     (24)] have held that right of at least one appeal is an essential ingredient of Article 21.  The Act is liable to be construed in consonance with the right to life as enshrined in Article 21.  Therefore, the jurisdiction to invoke Section 15 of the Contempt of Court Act ought to be construed as one vested in the High Court so that its order could be taken in appeal to the Supreme Court. At any rate, where the Supreme Court invokes its jurisdiction under Section 15, assuming that such jurisdiction is invested in it, then a mechanism for an intra-Court appeal has to be brought into existence to meet the requirement of Part III of the Constitution.  Against the order dated 9^th May, 2017 there is no forum of appeal by which the manifest error could be rectified.  Hence the instant application.

RELIEFS

(a)      declare that the notice dated 08/02/2017 issued against the Petitioner to show cause as to why proceedings under the Contempt of Courts Act, 1971 should not be initiated against him and all further proceedings in furtherance thereof, culminating in the order dated 9^th  May, 2017 (Annexure P-1,From pages12 to 15), are unconstitutional and void inasmuch as they are against the principles of natural justice;

(b)      recall the order dated 9^th  May, 2017 (Annexure P-1,From pages12 to 15),  being null and void ab initio;

(c)      stay all further proceedings pursuant to the order dated 9^th  May, 2017 (Annexure P-1,From pages12 to 15);

(d)      pass such further and other orders as the nature and circumstances of the case may warrant.

 

DRAWN BY                                                       FILED BY

 

(MATHEWS J.NEDUMPARA)   (MATHEWS J.NEDUMPARA)

& (A.C.Philip)

Advocate                                   Advocates for the Petitioner

mathewsjnedumpara@gmail.com

(Mobile: 98205 35428)

 

New Delhi,

Drawn on :10.05.2017

Filed on   :01.05.2017

 

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

MISCELLANEOUS APPLICATION NO.          OF 2017

(DIARY NO.___________/2017)

IN

SUO MOTU CONMT.PET.(C)NO.1 OF 2017

 

Justice C.S. Karnan                            … Applicant/  Alleged Contemnor

 

IN THE MATTER OF

Supreme Court of India

on its own motion                              … Suo Moto

Versus

Justice C.S. Karnan    ..Original Alleged Contemnor/Respondent

 

affidavit

 

I, Justice C.S.Karnan, aged about 61 years, S/o.Mr.Swaminathan, Residing at: 1/GB, Rosedale Towers, New Town, Kolkotta Presently at ____, do hereby solemnly swear and affirm as follows :

1. I state that I am the Applicant in the above miscellaneous application and I am fully conversant with the facts, proceedings and circumstances of the case.
2.  I state that I have read and understood the contents of the accompanying Misc. Application para 1 to at page 1   to 10   and I state that the facts contents therein are true and correct to my knowledge.
3.   I state that the Annexure along with the Misc.Application produced herewith are the true copies of their respective originals.

Solemnly affirmed at _____                       ]

on this the ___  day of May, 2017.     ]                 Petitioner

Verification

I, the above named Deponent, do hereby solemnly swear and verify that the contents of this Affidavit are true and correct to my knowledge and belief.  No part of it is false and nothing has been concealed therein.

Verified at New Delhi on on this the ___  day of May, 2017.

DEPONENT

 

Annexure-‘A’

IN THE SUPREME COURT OF INDIA

ORIGINAL JURISDICTION

SUO MOTU CONTEMPT PETITION(C) NO.1/2017

 

In Re:  Sri Justice C.S. Karnan

O R D E R

1. We have heard Mr. Rakesh Dwivedi, learned senior counsel

representing  the  State  of  West  Bengal,  with  reference  to  the

medical  examination  of  Sri  Justice  C.S.  Karnan,  as  also,  Mr.

Maninder Singh, learned Additional Solicitor General of India, Mr.

K.K.Venugopal,  learned  senior  counsel  representing  the  Registrar

General, High Court of Judicature at Madras, and Mr. Rupinder Singh

Suri,  Senior  Advocate,  in  his  capacity  as  the  President  of  the

Supreme Court Bar Association.

2. On merits, we  are  of  the  considered  view,  that  Sri

Justice C.S. Karnan, has committed contempt of the judiciary.  His

actions constitute contempt of this Court, and of the judiciary of

the  gravest  nature.   Having  found  him  guilty  of  committing

contempt, we convict him accordingly.  We are satisfied to punish

him  by  sentencing  him  to  imprisonment  for  six  months.  As  a

consequence, the contemnor shall not perform any administrative or

judicial functions.

3. Detailed order to follow.
4. The sentence of six months imposed by this Court on Sri

Justice C.S. Karnan, shall be executed forthwith, by the Director

General of Police, West Bengal, or through a team constituted by

1

 

him.

5. Since the incident of contempt includes public statements

and  publication  of  orders  made  by  the  contemnor,  which  were

highlighted by the electronic and print media, we are of the view,

that  no  further  statements  made  by  him  should  be  published

hereafter.  Ordered accordingly.

6. Disposed of in the aforesaid terms.

…………………..CJI

[JAGDISH SINGH KHEHAR]

……………………J.

[DIPAK MISRA]

……………………J.

[J. CHELAMESWAR]

……………………J.

[RANJAN GOGOI]

……………………J.

[MADAN B. LOKUR]

……………………J.

[PINAKI CHANDRA GHOSE]

NEW DELHI;                    ……………………J.

MAY 09, 2017.                              [KURIAN JOSEPH] 

2

ITEM NO.701                 COURT NO.1               SECTION XVII

S U P R E M E  C O U R T  O F  I N D I A

RECORD OF PROCEEDINGS

SUO MOTU CONTEMPT PETITION(C) No. 1/2017

IN RE  : SRI JUSTICE C.S. KARNAN                                  

WITH

SLP(C) No. 14842/2015

(With  WITH  APPLN.  (S)  FOR  directions  and  intervention  and

PERMISSION TO APPEAR AND ARGUE IN PERSON and Interim Relief and

Office Report)

Date : 09/05/2017 These petitions were called on for hearing today.

CORAM :

         HON’BLE THE CHIEF JUSTICE

         HON’BLE MR. JUSTICE DIPAK MISRA

         HON’BLE MR. JUSTICE J. CHELAMESWAR

         HON’BLE MR. JUSTICE RANJAN GOGOI

         HON’BLE MR. JUSTICE MADAN B. LOKUR

    HON’BLE MR. JUSTICE PINAKI CHANDRA GHOSE

    HON’BLE MR. JUSTICE KURIAN JOSEPH

Present:

For State of West Mr. Rakesh Dwivedi, Sr. Adv.

Bengal Mr. Chanchal Lr. Ganguli, Adv.

Ms. Narmada, Adv.

For UOI Mr. Maninder Singh, ASG

Ms. Madhvi Divan, Adv.

Mr. Nalin Kohli, Adv.

Ms. Ranjeeta Rohatgi, Adv.

Mr. Prabhash Bajaj, Adv.

For Registrar Mr. K.K. Venugopal, Sr. Adv.

General, High Mr. Nikhil Nayyar, Adv.

Court of Madras Mr. N. Sai Vinod, Adv.

Ms. Smriti Shah, Adv.

Mr. Divyanshu Rai, Adv.

Supreme Court Mr. Rupinder Singh Suri, Sr. Adv.

Bar Asson. Mr. Ajit Kr. Sinha, Sr. Adv.

Mr. Gaurav Bhatia, Adv.

Mr. M. Yogesh Kanna, Adv.

Ms. Nithya, Adv.

Mrs. Maha Lakshmi, Adv.

Mr. Partha Sarathi, Adv.

3

Ms. Uttara Babbar, Adv.

Ms. Akanksha Choudhary, Adv.

          UPON hearing the counsel the Court made the following

                             O R D E R

Suo Motu Contempt Petition stands disposed of, in terms

of the signed order.

List the special leave petition no. 14842/2015 before the

regular Bench.

 (Renuka Sadana)               (Parveen Kumar)

Assistant Registrar                 AR-cum-PS

[signed order is placed on the file]

4

 

 

IN THE SUPREME COURT OF INDIA

 

CRIMINAL ORIGINAL JURISDICTION

 

MISCELLANEOUS APPLICATION NO.          OF 2017

(DIARY NO.___________/2017)

IN

SUO MOTU CONMT.PET.(C)NO.1 OF 2017

 

 

Justice C.S. Karnan                                         … Applicant/  Alleged Contemnor

 

IN THE MATTER OF

Supreme Court of India

on its own motion                                            … Suo Moto

Versus

Justice C.S. Karnan                             … Original  Alleged Contemnor/Respondent

 

 

 

 

 

 

 

P A P E R  –  B O O K

(FOR INDEX KINDLY SEE INSIDE)

 

 

 

 

 

DRAWN BY                                                       FILED BY

 

(MATHEWS J.NEDUMPARA)   (MATHEWS J.NEDUMPARA)

& (A.C.Philip)

Advocate                                   Advocates for the Petitioner

mathewsjnedumpara@gmail.com

(Mobile: 98205 35428)

 

New Delhi,

Drawn on :10.05.2017

Filed on   :01.05.2017

 

     I N D E X

 

 

Sl. No.	Particulars	Page Nos.
1.	Memorandum of Application	1-10
2.	Affidavit in Support	11
3.	Annexure- A   Order dated 09.05.2017, of this Hon’ble Court in SUO MOTU CONMT.PET.(C) NO.1  OF 2017.	12-15