Vijay Kurle vs The on 27 April, 2020


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Supreme Court of India

Re : Vijay Kurle vs The on 27 April, 2020

Author: Deepak Gupta

                                                 REPORTABLE

              IN THE SUPREME COURT OF INDIA
                  INHERENT JURISDICTION


SUO MOTU CONTEMPT PETITION (CRIMINAL) NO. 2 OF 2019


RE : VIJAY KURLE & ORS.            …ALLEGED CONTEMNOR(S)




                       JUDGMENT

Deepak Gupta, J.

A Bench of this Court while dealing with Suo Motu

Contempt Petition (Criminal) No.1 of 2019 took note of a letter

dated 23.03.2019 received by the office of the Judges of the

Bench on 25.03.2019. This was a copy of the letter sent by the

President of the Bombay Bar Association and the President of the

Bombay Incorporated Law Society to the President of India, Chief

Justice of India and the Chief Justice of the Bombay High Court.

In the said letter, reference was made to two complaints – one

made by the Indian Bar Association, dated 20.03.2019 through

alleged contemnor no. 1, Shri Vijay Kurle, State President of

1
Maharashtra and Goa of the Indian Bar Association, and the

second complaint dated 19.03.2019 made by alleged contemnor

no. 2, Shri Rashid Khan Pathan, National Secretary of the

Human Rights Security Council. It was mentioned that these

complaints have not only been sent to the President of India and

the Chief Justice of India but also have been circulated in the

social media and the complaints were attached as Annexures­1

and 2 to the said letter. The Bench took note of the letter and the

complaints attached to the said letter and specifically noted the

prayers made in both the complaints and found that both the

complaints are substantially similar. The Bench on noting the

allegations made in the complaints was of the view that

scandalous allegations have been made against the members of

the said Bench and, therefore, notice was issued to Shri Vijay

Kurle, alleged contemnor no. 1, Shri Rashid Khan Pathan, alleged

contemnor no. 2, Shri Nilesh Ojha, alleged contemnor no. 3 and

Shri Mathews Nedumpara, alleged contemnor no. 4. The Bench

also directed that the matter be placed before the Chief Justice of

India to constitute an appropriate Bench to hear and decide the

contempt case.

2

2. After notice was issued, Shri Nedumpara filed an

application, being Criminal M.P. No. 60568/2019 for discharge in

which he stated that he barely knew Shri Vijay Kurle and Shri

Nilesh Ojha, and did not know Shri Rashid Khan Pathan at all.

He denied any role in sending those complaints. Therefore, vide

order dated 02.09.2019 we had discharged Shri Mathews

Nedumpara but made it clear that if during the course of

proceedings any evidence comes up against him, he would be

summoned again. On the same date, Shri Nilesh Ojha who

appears in person stated that the Registry has not given complete

copy of the annexures attached with the letter of the Bombay Bar

Association and Bombay Incorporated Law Society to him along

with the notice. The Registry was directed to supply the

annexures to him. On 30.09.2019 we were informed that the

Registry has not given complete annexures. Thereafter, we had

directed the Registry to supply 3 sets of Annexures P1 to P15

attached with the letter which were sent to alleged contemnor

nos. 1 to 3. On the same date, we appointed Shri Sidharth

Luthra, learned senior counsel, as amicus curiae to assist the

Court. On 04.11.2019, alleged contemnor nos. 1 to 3 admitted

3
that all the documents have been supplied to them and

thereafter, fresh replies were permitted to be filed.

3. In the letter of the Bombay Bar Association and the

Bombay Incorporated Law Society reference was made not only to

the allegations in the complaints levelled against the 2 Hon’ble

Judges of this Court but also other allegations were made which

indicated that alleged contemnor nos. 1 to 3 had committed

contempt of the Bombay High Court also. On 09.12.2019 we had

clarified that in view of the original order taking suo motu notice

and the documents placed on record, the charge against Shri

Vijay Kurle, alleged contemnor no. 1 was only in respect of the

scandalous allegations levelled against 2 Judges of this Court in

the letter dated 20.03.2019 sent by him as State President of

Maharashtra and Goa of the Indian Bar Association. We have

also clarified that as far as Shri Rashid Khan Pathan, alleged

contemnor no. 2, is concerned, the charge against him only

relates to the scandalous allegations made against 2 Judges of

this Court in the letter dated 19.03.2019 sent by him. As far as

Shri Nilesh Ojha, alleged contemnor no. 3 was concerned, the

only document against him was also the letter dated 20.03.2019

4
which letter was not signed by him, but admittedly, he is

President of the Indian Bar Association. We had given

opportunity to Shri Nilesh Ojha to explain his position whether

the letter dated 20.03.2019 was sent with his consent or under

his authority.

4. It would be pertinent to mention that Shri Vijay Kurle and

Shri Rashid Khan Pathan have not denied that they are the

authors of the letters which are signed by them.

5. The basis of the present contempt are the two letters dated

20.03.2019 and 19.03.2019 admittedly signed by alleged

contemnor nos. 1 and 2 i.e. Shri Vijay Kurle and Shri Rashid

Khan Pathan respectively. These letters are very lengthy running

into more than 250 pages combined. Therefore, it would not be

feasible to extract the entire letters but we have no doubt in our

mind that the tenor of the letters is highly disrespectful, and

scandalous and scurrilous allegations have been levelled against

2 Judges of this Court.

6. The three alleged contemnors have raised a number of

preliminary issues. We may summarise the same as follows:­

5

(i) That the Bench of Justice R. F. Nariman and Justice

Vineet Saran could not have taken cognizance of the case

because the case was not assigned to them by the Chief

Justice and that both the Judges acted as Judge in their

own cause.

(ii) That the Bench has not suo motu taken notice of the

contempt and therefore the Registry cannot treat it as a

suo motu petition.

(iii) That even in suo motu contempt proceedings the consent

of the Attorney General is necessary.

(iv) That the proper procedure of framing a charge is not

followed because the defects at the initial stage cannot be

cured by later orders/developments.

(v) That the Judges were bound to disclose the source of

information.

Powers of the Supreme Court

7. Before we deal with the objections individually, we need to

understand what are the powers of the Supreme Court of India in

relation to dealing with contempt of the Supreme Court in the

light of Articles 129 and 142 of the Constitution of India when

read in conjunction with the Contempt of Courts Act, 1971.

According to the alleged contemnors, the Contempt of Courts Act
6
is the final word in the matter and if the procedure prescribed

under the Contempt of Courts Act has not been followed then the

proceedings have to be dropped. On the other hand, Shri

Sidharth Luthra, learned amicus curiae while making reference

to a large number of decisions contends that the Supreme Court

being a Court of Record is not bound by the provisions of the

Contempt of Courts Act. The only requirement is that the

procedure followed is just and fair and in accordance with the

principles of natural justice.

Article 129 of the Constitution of India reads as follows:

“129. Supreme Court to be a court of record.­ The
Supreme Court shall be a court of record and shall have
all the powers of such a court including the power to
punish for contempt of itself.”

A bare reading of Article 129 clearly shows that this Court being

a Court of Record shall have all the powers of such a Court of

Record including the power to punish for contempt of itself. This

is a constitutional power which cannot be taken away or in any

manner abridged by statute.

Article 142 of the Constitution of India reads as follows:

7
“142. Enforcement of decrees and orders of Supreme
Court and orders as to discovery, etc.­ (1) The
Supreme Court in the exercise of its jurisdiction may
pass such decree or make such order as is necessary for
doing complete justice in any cause or matter pending
before it, and any decree so passed or order so made
shall be enforceable throughout the territory of India in
such manner as may be prescribed by or under any law
made by Parliament and, until provision in that behalf
is so made, in such manner as the President may by
order prescribe.

(2) Subject to the provisions of any law made in this
behalf by Parliament, the Supreme Court shall, as
respects the whole of the territory of India, have all and
every power to make any order for the purpose of
securing the attendance of any person, the discovery or
production of any documents, or the investigation or
punishment of any contempt of itself.”

Article 142 also provides that this Court can punish any person

for contempt of itself but this power is subject to the provisions of

any law made by parliament. A comparison of the provisions of

Article 129 and clause (2) of Article 142 clearly shows that

whereas the founding fathers felt that the powers under clause

92) of Article 142 could be subject to any law made by

parliament, there is no such restriction as far as Article 129 is

concerned. The power under clause (2) of Article 142 is not the

primary source of power of Court of Record which is Article 129

and there is no such restriction in Article 129. Samaraditya Pal

8
in the Law of Contempt 1 has very succinctly stated the legal

position as follows:

“Although the law of contempt is largely governed by the
1971 Act, it is now settled law in India that the High
Courts and the Supreme Court derive their jurisdiction
and power from Articles 215 and 129 of the
Constitution. This situation results in giving scope for
“judicial self­dealing”.

The High Courts also enjoy similar powers like the Supreme

Court under Article 215 of the Constitution. The main argument

of the alleged contemnors is that notice should have been issued

in terms of the provisions of the Contempt of Courts Act and any

violation of the Contempt of Courts Act would vitiate the entire

proceedings. We do not accept this argument. In view of the fact

that the power to punish for contempt of itself is a constitutional

power vested in this Court, such power cannot be abridged or

taken away even by legislative enactment.

8. To appreciate the rival contention, we shall have to make

reference to a number of decisions relied upon by both the

parties. The first judgment on the point is Sukhdev Singh

Sodhi v. The Chief Justice and Judges of the Pepsu High

1
Pgs
. 9­10, The Law of Contempt: Contempt of Courts and Legislatures, Fifth Edn.,
LexisNexis Butterworths Wadhwa, Nagpur (2013)

9
Court2. It would be pertinent to mention that the said judgment

was given in the context of the Contempt of Courts Act, 1952.

The issue before this Court in the said case was whether

contempt proceedings could said to be the proceedings under the

Criminal Procedure Code, 1973 (Cr.PC) and the Supreme Court

had the power to transfer the proceedings from one court to

another under the Cr.PC. Rejecting the prayer for transfer, this

Court held as follows:­

“….We hold therefore that the Code of Criminal
Procedure does not apply in matters of contempt triable
by the High Court. The High Court can deal with it
summarily and adopt its own procedure. All that is
necessary is that the procedure is fair and that the
contemner is made aware of the charge against him and
given a fair and reasonable opportunity to defend
himself. This rule was laid down by the Privy Council in
In re Pollard (L.R. 2 P.C. 106 at 120) and was followed in
India and in Burma in In re Vallabhdas (I.L.R. 27 Bom.
394 at 390) and Ebrahim Mamoojee Parekh v. King
Emperor (I.L.R. 4 Rang. 257 at 259­261). In our view
that is still the law.”

9. A Constitution Bench of this Court in Shri C. K. Daphtary

and Others v. Shri O.P. Gupta and Others 3 was dealing with a

case where the contemnor had published a pamphlet casting

scurrilous aspersions on 2 Judges of this Court. During the

2
1954 SCR 454
3
1971 (1) SCC 626

10
course of argument, the contemnor raised a plea that all the

evidence has not been furnished to him and made a request that

the petitioner be asked to furnish the “pamphlet” or “book”

annexed to the petition. The Court rejected this argument

holding that the booklet/pamphlet had been annexed to the

petition in original and the Court had directed that the matter be

decided on affidavits.

10. In respect of the absence of a specific charge being framed,

the Court held that a specific charge was not required to be

framed and the only requirement was that a fair procedure

should be followed. Dealing with the Contempt of Courts Act,

1952 this Court held as follows:­

“58. We are here also not concerned with any law made
by Parliament. Article 129 shows that the Supreme Court
has all the powers of a Court of Record, including the
power to punish for contempt of itself; and Article 142(2)
goes further and enables us to investigate any contempt
of this Court.”

11. Thereafter, this Court approved the observations in

Sukhdev Singh Sodhi’s case (supra) and held as follows:­

“78. In our view that is still the law. It is in accordance
with the practice of this Court that a notice was issued to
the respondents and opportunity given to them to file
affidavits stating facts and their contentions. At one
stage, after arguments had begun Respondent No. 1
asked for postponement of the case to engage some

11
lawyers who were engaged in fighting elections. We
refused adjournment because we were of the view that
the request was not reasonable and was made with a
view to delay matters. We may mention that the first
respondent fully argued his case for a number of days.
The procedure adopted by us is the usual procedure
followed in all cases.”

12. According to the alleged contemnors, both the aforesaid

judgments are per incuriam after coming into force of the

Contempt of Courts Act, 1971. They are definitely not per

incuriam because they have been decided on the basis of the law

which admittedly existed, but for the purposes of this case, we

shall treat the argument of the alleged contemnors to be that the

judgments are no longer good law and do not bind this Court. It

has been contended by the alleged contemnors that both the

aforesaid cases are overruled by later judgments. We shall now

refer to some of the decisions cited by the parties.

13. In P.N. Duda v. P.Shiv Shanker and Others4 the

respondent, Shri P. Shiv Shiv Shanker, who was a former judge

of the High Court and was the Minister for Law, Justice and

Company Affairs delivered a speech which was said to be

contemptuous. A petition was filed by the petitioner P. N. Duda

who was an advocate of this Court but this Court declined to
4
(1988) 3 SCC 167

12
initiate contempt proceedings. At the outset, we may note that

while giving the reasons for not initiating contempt, though this

Court held that the contempt petition was not maintainable, it

went into the merits of the speech delivered by Shri P. Shiv

Shanker and held that there was no imminent danger of

interference with the administration of the justice and bringing

administration into disrepute. It was held that Shri P. Shiv

Shanker was not guilty of contempt of this Court. Having held

so, the Court went on to decide whether the petition could have

been entertained on behalf of Shri Duda. In the said petition,

Shri Duda had written a letter to the Attorney General seeking

consent for initiating contempt proceedings against Shri P. Shiv

Shanker. A copy of the said letter was also sent to the Solicitor

General of India. While seeking consent, the petitioner had also

stated that the Attorney General may be embarrassed to give

consent for prosecution of the Law Minister and in view of the

said allegations, the Attorney General felt that the credibility and

authority of the office of the Attorney General was undermined

and therefore did not deny or grant sanction for prosecution. The

Court held that the petitioner could not move the Court for

initiating contempt proceedings against the respondent without

13
consent of the Attorney General and the Solicitor General. The

relevant portion of the judgment reads as follows:­

“39. The question of contempt of court came up for
consideration in the case of C.K. Daphtary v. O.P. Gupta.
In that case a petition under Article 129 of the
Constitution was filed by Shri C.K. Daphtary and three
other advocates bringing to the notice of this Court
alleged contempt committed by the respondents. There
this court held that under Article 129 of the Constitution
this Court had the power to punish for contempt of itself
and under Article 143(2) it could investigate any such
contempt. This Court reiterated that the Constitution
made this Court the guardian of fundamental rights. This
Court further held that under the existing law of
contempt of court any publication which was calculated
to interfere with the due course of justice or proper
administration of law would amount to contempt of
court. A scurrilous attack on a Judge, in respect of a
judgment or past conduct has in our country the
inevitable effect of undermining the confidence of the
public in the Judiciary ; and if confidence in Judiciary
goes administration of justice definitely suffers. In that
case a pamphlet was alleged to have contained
statements amounting to contempt of the court. As the
Attorney General did not move in the matter, the
President of the Supreme Court bar and the other
petitioners chose to bring the matter to the notice of the
court. It was alleged that the said President and the other
members of the bar have no locus standi. This Court held
that the court could issue a notice suo motu. The
President of the Supreme Court bar and other petitioners
were perfectly entitled to bring to the notice of the court
any contempt of the court. The first respondent referred
to Lord Shawcross Committee’s recommendation in U.K.
that “proceedings should be instituted only if the
Attorney General in his discretion considers them
necessary”. This was only a recommendation made in the
light of circumstances prevailing in England. But that is
not the law in India, this Court reiterated. It has to be
borne that decision was rendered on March 19, 1971 and
the present Act in India was passed on December 24,
1971. Therefore that decision cannot be of any
assistance. We have noticed Sanyal Committee’s
recommendations in India as to why the Attorney General

14
should be associated with it, and thereafter in U.K. there
was report of Phillimore Committee in 1974. In India the
reason for having the consent of the Attorney General
was examined and explained by Sanyal Committee
Report as noticed before.”

14. The alleged contemnors contended that the last portion of

the aforesaid paragraph shows that the judgment in C. K.

Daphtary’s case (supra) having been delivered prior to the

enactment of Contempt of Courts Act, 1971 is no longer

applicable. We may however point out that in the very next

paragraph in the same judgment, it was held as follows:­

“40. Our attention was drawn by Shri Ganguly to a
decision of the Allahabad High Court in G.N. Verma v.
Hargovind Dayal
(AIR 1975 All 52) where the Division
Bench reiterated that Rules which provide for the manner
in which proceedings for contempt of court should be
taken continue to apply even after the enactment of the
Contempt of Courts Act, 1971. Therefore cognizance
could be taken suo motu and information contained in
the application by a private individual could be utilised.
As we have mentioned hereinbefore indubitably
cognizance could be taken suo motu by the court but
members of the public have also the right to move the
court. That right of bringing to the notice of the court is
dependent upon consent being given either by the
Attorney General or the Solicitor General and if that
consent is withheld without reasons or without
consideration of that right granted to any other person
under Section 15 of the Act that could be investigated in
an application made to the court.”

15

15. The alleged contemnors rely on certain observations in the

concurring judgment of Justice Ranganathan in the same

judgment wherein he has approved the following passage from a

judgment of the Delhi High Court in Anil Kumar Gupta v. K.

Subba Rao and Ors.5:­

“The office is to take note that in future if any information
is lodged even in the form of a petition inviting this Court
to take action under the Contempt of Courts Act or
Article 215 of the Constitution, where the informant is
not one of the persons named in Section 15 of the said
Act, it should not be styled as a petition and should not
be placed for admission on the judicial side. Such a
petition should be placed before the Chief Justice for
orders in Chambers and the Chief Justice may decide
either by himself or in consultation with the other judges
of the Court whether to take any cognizance of the
information. The office is directed to strike off the
information as “Criminal Original No. 51 of 1973” and to
file it.”

Thereafter Justice Ranganathan made the following observation:­

“54….I think that the direction given by the Delhi High
Court sets out the proper procedure in such cases and
may be adopted, at least in future, as a practice direction
or as a rule, by this Court and other High Courts….”

16. Relying upon the aforesaid observations in the judgment

delivered by Justice Ranganathan it is submitted that the

petition could not have been placed for admission on the judicial

side but should have been placed before the Chief Justice and

5
ILR (1974) 1 Del 1

16
not before any other Bench. We are not at all in agreement with

the submission. What Justice Ranganathan observed is an obiter

and not the finding of the Bench and this is not the procedure

prescribed under the Rules of this Court.

17. This Court has framed rules in this regard known as The

Rules to Regulate Proceedings for Contempt of the Supreme

Court, 1975 (for short ‘the Rules’) and relevant portion of Rule 3

of the Rules reads as follows:­

“3. In case of contempt other than the contempt referred
to in rule 2, the Court may take action –

(a) suo motu, or

(b) on a petition made by Attorney­General, or Solicitor­
General, or

(c) on a petition made by any person, and in the case of
a criminal contempt with the consent in writing of
the Attorney­General or the Solicitor­General.”

18. A bare perusal of Rule 3 shows that there are 3 ways for

initiating contempt proceedings. The first is suo motu, the second

is on a petition made by the Attorney General or the Solicitor

General, and the third is on the basis of a petition made by any

person and where criminal contempt is involved then the consent

of the Attorney General or the Solicitor General is necessary.

Rules 4 and 5 prescribe for the manner of filing of a petition

under Rules 3(b) and 3(c). Rule 4 lays down the requirements of

17
a petition to be filed under Rules 3(b) and 3(c) and Rule 5

requires that every petition under Rule 3(b) or Rule 3(c) shall be

placed before the Court for preliminary hearing. Rule 6 requires

notice to the person charged to be in terms of Form I. Rule 6

reads as follows:­

“6. (1) Notice to the person charged shall be in Form I.
The person charged shall, unless otherwise ordered,
appear in person before the Court as directed on the
date fixed for hearing of the proceeding, and shall
continue to remain present during hearing till the
proceeding is finally disposed of by order of the
Court.

(2) When action is instituted on petition, a copy of
the petition along with the annexure and affidavits
shall be served upon the person charged.”

19. These Rules have been framed by the Supreme Court in

exercise of the powers vested in it under Section 23 of the

Contempt of Courts Act, 1971 and they have been notified with

the approval of Hon’ble the President of India.

20. In Pritam Pal v. High Court of Madhya Pradesh,

Jabalpur Through Registrar6, a 2 Judge Bench of this Court

held as follows:­

“15. Prior to the Contempt of Courts Act, 1971, it
was held that the High Court has inherent power to
6
1992 (1) SCALE 416

18
deal with a contempt of itself summarily and to
adopt its own procedure, provided that it gives a fair
and reasonable opportunity to the contemnor to
defend himself. But the procedure has now been
prescribed by Section 15 of the Act in exercise of the
powers conferred by Entry 14, List III of the Seventh
Schedule of the Constitution. Though the contempt
jurisdiction of the Supreme Court and the High
Court can be regulated by legislation by appropriate
Legislature under Entry 77 of List I and Entry 14 of
List III in exercise of which the Parliament has
enacted the Act of 1971, the contempt jurisdiction of
the Supreme Court and the High Court is given a
constitutional foundation by declaring to be ‘Courts
of Record’ under Articles 129 and 215 of the
Constitution and, therefore, the inherent power of
the Supreme Court and the High Court cannot be
taken away by any legislation short of constitutional
amendment. In fact, Section 22 of the Act lays down
that the provisions of this Act shall be in addition to
and not in derogation of the provisions of any other
law relating to Contempt of Courts. It necessarily
follows that the constitutional jurisdiction of the
Supreme Court and the High Court under Articles
129 and 215 cannot be curtailed by anything in the
Act of 1971…”

21. In Delhi Judicial Service Association, Tis Hazari Court,

Delhi v. State of Gujarat and Ors.7 a three­Judge Bench of

this Court relied upon the judgment in the case of Sukhdev

Singh Sodhi (supra) and held that the Supreme Court had

inherent jurisdiction or power to punish for contempt of inferior

courts under Article 129 of the Constitution of India.

7
(1991) 4 SCC 406

19

22. A three­Judge Bench of this Court In Re: Vinay Chandra

Mishra8 discussed the law on this point in detail. The Court

while holding the respondent guilty for contempt had not only

sentenced him to simple imprisonment for a period of 6 weeks

which was suspended but also suspended his advocacy for a

period of 3 years, relying upon the powers vested in this Court

under Article 129 and 142 of the Constitution of India.

23. We may now refer to certain other provisions of

Constitution, Entry 77, Union List (List I) of VII Schedule reads

as follows:

“77. Constitution, organisation, jurisdiction and powers
of the Supreme Court (including contempt of such
Court), and the fees taken therein; persons entitled to
practise before the Supreme Court.”

Entry 14, Concurrent List (List III of VII Schedule) reads as

follows :

“14. Contempt of court, but not including contempt of
the Supreme Court.”

In exercise of the aforesaid powers the Contempt of Courts Act,

1971 was enacted by Parliament. Section 15 deals with

cognizance of criminal contempt and the opening portion of
8
(1995) 2 SCC 584

20
Section 15 clearly provides that the Supreme Court or the High

Courts may take action (i) suo motu (ii) on a motion moved by the

Advocate General in case of High Court or Attorney

General/Solicitor General in the case of Supreme Court and (iii)

on a petition by any other person with the consent in writing of

the Advocate General/Attorney General/Solicitor General as the

case may be. Section 17 lays down the procedure to be followed

when action is taken on a motion moved by the Advocate

General/Attorney General/Solicitor General or on the basis of

their consent and Section 17(2) does not deal with suo motu

contempt petitions. Section 17(2)(a) of the Contempt of Courts

Act will not apply to suo motu petitions because that deals with

the proceedings moved on a motion and not suo motu

proceedings. Section 17(2)(b) deals with contempt initiated on a

reference made by the subordinate court. It is only in these

cases that the notice is required to be issued along with a copy of

the motion. As far as suo motu petitions are concerned, in these

cases the only requirement of Form­I which has been framed in

pursuance of Rule 6 of the Rules of this Court is that the brief

nature of the contempt has to be stated therein.

21

24. The correctness of the judgment in Vinay Chandra

Mishra’s case (supra) was considered by a Constitution Bench of

this Court in Supreme Court Bar Association v. Union of

India9. We shall be referring to certain portions of that judgment

in detail. That being a Constitution Bench judgment, is binding

and all other judgments which may have taken a view to the

contrary cannot be said to be correct. Before we deal with the

judgment itself, it would be appropriate to refer to certain

provisions of the Contempt of Courts Act, 1971. Section 2 is the

definition clause defining “contempt of court”, “civil contempt”,

“criminal contempt” and “High Court”. Sections 3 to 5 deal with

innocent publication, fair and accurate reporting of judicial

proceedings and fair criticism of judicial act, which do not

amount to contempt. Sections 10 and 11 deal with the powers of

the High Court to punish for contempt. Section 12(2) provides

that no court shall impose a sentence in excess of that specified

in sub­section (1) of Section 12. Section 13 provides that no

court should impose a sentence under the Act for contempt

unless it is satisfied that the contempt is of such a nature that it

substantially interferes or tends to substantially interfere with
9
(1998) 4 SCC 409

22
the due course of justice. It also provides that truth can be

permitted to be raised as a valid defence if the court is satisfied

that the defence has been raised in the public interest and is a

bona fide defence. Section 14 deals with the powers of the

Supreme Court or the High Courts to deal with contempt in the

face of the Court. We have already dealt with Section 15 which

deals with cognizance of the criminal contempt other than

contempt in the face of the Court. Section 17 lays down the

procedure after cognizance. It is in the background of this Act

that we have to read and analyse the judgment of the

Constitution Bench.

25. The Constitution Bench referred to the provisions of Article

129 of the Constitution of India and also Entry 77 of List I of

Seventh Schedule and Entry 14 of List III of the Seventh

Schedule and, thereafter, held as follows:­

“18. The language of Entry 77 of List I and Entry 14 of
List III of the Seventh Schedule demonstrates that the
legislative power of Parliament and of the State
Legislature extends to legislate with respect to matters
connected with contempt of court by the Supreme Court
or the High Court, subject however, to the qualification
that such legislation cannot denude, abrogate or nullify,
the power of the Supreme Court to punish for contempt
under Article 129 or vest that power in some other
court.”
(emphasis supplied)

23

26. This Court referring to Article 142 of the Constitution held

as follows:­

“21. It is, thus, seen that the power of this Court in
respect of investigation or punishment of any contempt
including contempt of itself, is expressly made “subject
to the provisions of any law made in this behalf by
Parliament” by Article 142(2). However, the power to
punish for contempt being inherent in a court of record,
it follows that no act of Parliament can take away that
inherent jurisdiction of the court of record to punish for
contempt and Parliament’s power of legislation on the
subject cannot, therefore, be so exercised as to stultify
the status and dignity of the Supreme Court and/or the
High Courts, though such a legislation may serve as a
guide for the determination of the nature of punishment
which this Court may impose in the case of established
contempt. Parliament has not enacted any law dealing
with the powers of the Supreme Court with regard to
investigation and punishment of contempt of itself, (we
shall refer to Section 15 of the Contempt of Courts Act,
1971, later on) and this Court, therefore, exercises the
power to investigate and punish for contempt of itself by
virtue of the powers vested in it under Articles 129 and
142(2) of the Constitution of India.”

27. This Court then made reference to the provision of the

Contempt of Courts Act, 1926, the Contempt of Courts Act, 1952

and the Contempt of Courts Act, 1971 and thereafter held as

follows:­

“29. Section 10 of the 1971 Act like Section 2 of the
1926 Act and Section 4 of the 1952 Act recognises the
power which a High Court already possesses as a court
of record for punishing for contempt of itself, which
jurisdiction has now the sanction of the Constitution

24
also by virtue of Article 215. The Act, however, does not
deal with the powers of the Supreme Court to try or
punish a contemner for committing contempt of the
Supreme Court or the courts subordinate to it and the
constitutional provision contained in Articles 142(2) and
129 of the Constitution alone deal with the subject.”

28. It would also be pertinent to refer to the following

observations of the Constitution Bench:­

“38. As already noticed, Parliament by virtue of Entry
77 List I is competent to enact a law relating to the
powers of the Supreme Court with regard to contempt of
itself and such a law may prescribe the nature of
punishment which may be imposed on a contemner by
virtue of the provisions of Article 129 read with Article
142(2).
Since, no such law has been enacted by
Parliament, the nature of punishment prescribed under
the Contempt of Courts Act, 1971 may act as a guide for
the Supreme Court but the extent of punishment as
prescribed under that Act can apply only to the High
Courts, because the 1971 Act ipso facto does not deal
with the contempt jurisdiction of the Supreme Court,
except that Section 15 of the Act prescribes procedural
mode for taking cognizance of criminal contempt by the
Supreme Court also. Section 15, however, is not a
substantive provision conferring contempt jurisdiction.
The judgment in Sukhdev Singh case (AIR 1954 SC
186 : 1954 SCR 454) as regards the extent of “maximum
punishment” which can be imposed upon a contemner
must, therefore, be construed as dealing with the
powers of the High Courts only and not of this Court in
that behalf. We are, therefore, doubtful of the validity of
the argument of the learned Solicitor General that the
extent of punishment which the Supreme Court can
impose in exercise of its inherent powers to punish for
contempt of itself and/or of subordinate courts can also
be only to the extent prescribed under the Contempt of
Courts Act
, 1971. We, however, do not express any final
opinion on that question since that issue, strictly
speaking, does not arise for our decision in this case.
The question regarding the restriction or limitation on
the extent of punishment, which this Court may award

25
while exercising its contempt jurisdiction may be
decided in a proper case, when so raised.”
xxx xxx xxx
“40…Article 129 cannot take over the jurisdiction of the
Disciplinary Committee of the Bar Council of the State
or the Bar Council of India to punish an advocate by
suspending his licence, which punishment can only be
imposed after a finding of “professional misconduct” is
recorded in the manner prescribed under the Advocates
Act
and the Rules framed thereunder.”
xxx xxx xxx
“43. The power of the Supreme Court to punish for
contempt of court, though quite wide, is yet limited and
cannot be expanded to include the power to determine
whether an advocate is also guilty of “professional
misconduct” in a summary manner, giving a go­by to
the procedure prescribed under the Advocates Act. The
power to do complete justice under Article 142 is in a
way, corrective power, which gives preference to equity
over law but it cannot be used to deprive a professional
lawyer of the due process contained in the Advocates
Act
, 1961 by suspending his licence to practice in a
summary manner while dealing with a case of contempt
of court.”
xxx xxx xxx
“57. In a given case, an advocate found guilty of
committing contempt of court may also be guilty of
committing “professional misconduct”, depending upon
the gravity or nature of his contumacious conduct, but
the two jurisdictions are separate and distinct and
exercisable by different forums by following separate
and distinct procedures. The power to punish an
advocate by suspending his licence or by removal of his
name from the roll of the State Bar Council for proven
professional misconduct vests exclusively in the
statutory authorities created under the Advocates Act,
1961, while the jurisdiction to punish him for
committing contempt of court vests exclusively in the
courts.”

26

29. A careful analysis of the Constitution Bench decision leaves

no manner of doubt that Section 15 of the Act is not a

substantive provision conferring contempt jurisdiction. The

Constitution Bench finally left the question as to whether the

maximum sentence prescribed by the Act binds the Supreme

Court open. The observations made in Para 38 referred to above

clearly indicate that the Constitution Bench was of the view that

the punishment prescribed in the Act could only be a guideline

and nothing more. Certain observations made in this judgment

that the Court exceeded its jurisdiction in Vinay Chandra

Mishra’s case (supra) by taking away the right of practice for a

period of 3 years have to be read in the context that the Apex

Court held that Article 129 cannot take over the jurisdiction of

the Bar Council of the State or the Bar Council of India to punish

an advocate. These observations, in our opinion have to be read

with the other observations quoted hereinabove which clearly

show that the Constitution Bench held that “Parliament has not

enacted any law dealing with the powers of the Supreme Court

with regard to investigation and punishment of contempt of itself”.

The Court also held that Section 15 is not a substantive provision

27
conferring contempt jurisdiction and, therefore, is only a

procedural section especially in so far as suo moto contempts are

concerned. It is thus clear that the powers of the Supreme Court

to punish for contempt committed of itself is a power not subject

to the provisions of the Act. Therefore, the only requirement is to

follow a procedure which is just, fair and in accordance with the

rules framed by this Court.

30. As far as the observations made in the case of Pallav Sheth

v. Custodian & Ors.10 are concerned, this Court in that case was

only dealing with the question whether contempt can be initiated

after the limitation prescribed in the Contempt of Courts Act has

expired and the observations made therein have to be read in

that context only. Relevant portion of Para 30 of the Pallav

Seth’s case (supra) reads as follows:

“30. There can be no doubt that both this Court and
High Courts are Courts of Records and the Constitution
has given them the powers to punish for contempt. The
decisions of this Court clearly show that this power
cannot be abrogated or stultified. But if the power under
Article 129 and Article 215 is absolute can there be any
legislation indicating the manner and to the extent that
the power can be exercised? If there is any provision of
the law which stultifies or abrogates the power under
Article 129 and/or Article 215 there can be little doubt
that such law should not be regarded as having been
validly enacted. It, however, appears to us that providing
for the quantum of punishment ow what may or may not
10
2001 (7) SCC 549

28
be regarded as acts of contempt or even providing for a
period of limitation for initiating proceedings for contempt
cannot be taken to be a provision which abrogates or
stultifies the contempt jurisdiction under Article 129 or
Article 215 of the Constitution.”

The aforesaid finding clearly indicates that the Court held that

any law which stultifies or abrogates the power of the Supreme

Court under Article 129 of the Constitution or of the High Courts

under Article 215 of the Constitution, could not be said to be

validly enacted. It however, went on to hold that providing the

quantum of punishment or a period of limitation would not mean

that the powers of the Court under Article 129 have been

stultified or abrogated. We are not going into the correctness or

otherwise of this judgment but it is clear that this judgment only

dealt with the issue whether the Parliament could fix a period of

limitation to initiate the proceedings under the Act. Without

commenting one way or the other on Pallav Seth’s case (supra)

it is clear that the same has not dealt with the powers of this

Court to issue suo motu notice of contempt.

31. In view of the above discussion we are clearly of the view

that the powers of the Supreme Court to initiate contempt are not

in any manner limited by the provisions of the Act. This Court is

29
vested with the constitutional powers to deal with the contempt.

Section 15 is not the source of the power to issue notice for

contempt. It only provides the procedure in which such

contempt is to be initiated and this procedure provides that there

are three ways of initiating a contempt – (i) suo motu (ii) on the

motion by the Advocate General/Attorney General/Solicitor

General and (iii) on the basis of a petition filed by any other

person with the consent in writing of the Advocate

General/Attorney General/Solicitor General. As far as suo motu

petitions are concerned, there is no requirement for taking

consent of anybody because the Court is exercising its inherent

powers to issue notice for contempt. This is not only clear from

the provisions of the Act but also clear from the Rules laid down

by this Court.

Objections as to issuance of notice

32. The alleged contemnors have filed applications for discharge

of notices issued to them. Vide our order dated 09.12.2019 we

had made it clear that we are dealing with both the applications

and the main petition together. The main ground for discharge is

30
that notice sent was not in accordance with the provisions of the

Contempt of Courts Act. This Court, as mentioned above, has its

own Rules and Form I lays down the manner in which notice is to

be issued. The same is as follows:

“FORM I
NOTICE TO A PERSON CHARGED WITH CONTEMPT
OF COURT
(See rule 6)
IN THE SUPREME COURT OF INDIA
(Original Jurisdiction)
Whereas your attendance is necessary to answer a
charge of Contempt of Court by (here briefly state
nature of the contempt).

You are hereby required to appear in person (or by
Advocate if the Court has so ordered) before this Court
at New Delhi on the ………………day of…………….20…at
10.30 o’clock in the forenoon.

You shall attend the Court in person * on the…………
day of ………….20……, and shall continue to attend the
Court on all days thereafter to which the case against
you stands adjourned and until final orders are passed
on the charge against you.

Herein fail not.

Dated this …………. day of…………20….

(SEAL)
REGISTRAR
*To be omitted where the person charged is allowed or
ordered to appear by Advocate.”

The only requirement of the Rules and the Form is that the brief

nature of the contempt is to be stated in the Form. There is no

31
requirement of giving all the documents with the Form. A

perusal of the order whereby contempt proceedings were initiated

clearly shows that the grounds for initiating contempt were

reflected in the order itself. This order was admittedly sent to the

alleged contemnors. Therefore, in our opinion, the notice was

strictly in accordance with Form­1, which only requires that the

notice should briefly state the nature of the contempt. Once the

order was attached to the notice that became part and parcel of

the notice itself. In any event, non­supply of any document

would only be an irregularity and not an illegality going to the

root of the matter. The only documents which are the basis for

issuing notice of contempt are the complaints sent by Shri Vijay

Kurle and Shri Rashid Khan Pathan which were annexed to the

letter of the Bombay Bar Association and Bombay Incorporated

Law Society. The letters of the Bombay Bar Association and

Bombay Incorporated Law Society along with all the annexures

attached to the said letter have been supplied to the alleged

contemnors and they were permitted to file additional replies

after receiving all these documents. As mentioned above, this

Court had clarified that the action against alleged contemnors is

being restricted to the allegations made in the two complaints by

32
Shri Vijay Kurle and Shri Rashid Khan Pathan of which they are

admittedly the authors. Since this Court has not relied upon any

of the other documents, we do not see how any prejudice has

been caused to the alleged contemnors by the non­supply of the

documents along with the notice. As per the Rules of this Court,

the notice was only to briefly state nature of the contempt and in

the order itself reference has been made to the complaints of Shri

Vijay Kurle and Shri Rashid Khan Pathan. We accordingly see no

merit in the argument of the alleged contemnors that the notice

was not in consonance with the Rules of this Court or in

consonance with the principles of natural justice or fair

procedure. Accordingly, we reject the contention and hold that

the notice was a legal and valid notice. Consequently, the

applications for discharge of notice are also dismissed.

Whether these proceedings can be termed suo motu?

33. The next contention of the alleged contemnors is that the

proceedings in the present case are not suo motu proceedings

and, therefore, should not have been entertained without the

consent of the Attorney General or Solicitor General. The alleged

contemnors have placed strong reliance on the judgment of this

33
Court in the case of Biman Basu v. Kallol Guha Thakurta &

Another.11 The issue in that case was whether the High Court

had issued notice of contempt suo motu. In our view, that

judgment has no applicability here. The facts of that case were

that a contempt petition was filed by the respondents (in the

Supreme Court) alleging that the appellant (in the Supreme

Court) had made deliberate and wilful derogatory, defamatory

and filthy statements against a Judge of the Calcutta High Court.

The Division Bench before whom the matter was placed passed

the following order:

“7. Heard.

After hearing Mr. Ali, learned counsel moving this
petition and perusing the issue of Bartaman dated 5­10­
2003, we are of the view that a rule be issued. Rule is
made returnable on 7­11­2003.

This Court, however, makes it clear that the records
of this case may be placed before the Hon’ble the Chief
Justice for assignment of this rule for hearing before
any Bench that the Hon’ble the Chief Justice may think
fit and proper.”

The main issue which arose before this Court was whether the

contempt proceedings were initiated against the appellant therein

suo motu by the High Court or by the respondents. Keeping in

11
(2010) 8 SCC 673

34
view the language of the order passed in the case it was held that

this was not a case where the Court had taken suo motu action

and therefore relying upon the judgments of this Court in the

case of P.N. Duda (supra) and in Bal Thackrey v. Harish

Pimpalkhute and Ors.12 it was held that the contempt petition

could not have been filed without the consent of the Advocate

General. The Court further held that from the record it was

apparent that the respondent was always shown as the petitioner

in the contempt petition and, therefore, there was nothing which

indicated that the proceedings had been initiated suo motu.

34. As far as the present case is concerned, the order passed

by this Court clearly shows that this Court after taking note of

the letter sent by the President of the Bombay Bar Association

and the President of the Bombay Incorporated Law Society, the

annexures attached to this letter and after specifically noting the

prayers made in the complaints of Shri Vijay Kurle and Shri

Rashid Khan Pathan along with the allegations made in both the

complaints was of the view that the allegations levelled against

the Members of the Bench were scandalous in nature and

therefore, notice was issued to the alleged contemnors and
12
2005 (1) SCC 254

35
against Shri Nedumpara who has since been discharged. The

alleged contemnors are basically urging that the order does not

use the word “suo motu”. In our view, that would not make any

difference. The relevant portion of the order dated 27.03.2019

reads as follows:

“Given the two complaints filed, it is clear that
scandalous allegations have been made against the
members of this Bench. We, therefore, issue notice of
contempt to (1) Shri Vijay Kurle; (2) Shri Rashid Khan
Pathan; (3) Shri Nilesh Ojha and (4) Shri Mathews
Nedumpara to explain as to why they should not be
punished for criminal contempt of the Supreme Court of
India, returnable within two weeks from today.”

When we read the aforesaid order as a whole, it is more than

obvious that the Court itself took cognizance of the complaints

and the documents thereto as well as the allegations levelled

therein.

35. Contempt is basically a matter between the Court and the

contemnor. Any person can inform the Court of the contempt

committed. If he is to be arrayed as a party then the contempt

will be in his name but when the Court does not array him as a

party, the Court can on the basis of the information itself take

suo motu notice of the contempt. In the present case, the Court

on the basis of the information itself took suo motu note of the

36
contempt and the matter was then placed before Hon’ble the

Chief Justice for listing it before the appropriate Bench. The

matter has been listed as a suo motu contempt petition right from

the beginning and dealt with as such.

36. In Biman Basu’s case (supra) the Court after referring to

earlier decisions of this Court held as follows:

“25. It is true that any person may move the High Court
for initiating proceedings for criminal contempt by
placing the facts constituting the commission of
criminal contempt to the notice of the Court. But once
those facts are placed before the Court, it becomes a
matter between the Court and the contemner. But such
person filing an application or petition does not become
a complainant or petitioner in the proceeding. His duty
ends with the facts being placed before the Court. The
Court may in appropriate cases in its discretion require
the private party or litigant moving the Court to render
assistance during the course of the proceedings…”
xxx xxx xxx
“28. In the case in hand, it is evident from the record,
the respondents were continued to be shown as the
petitioners in the contempt case before the High Court
and participated throughout as if they were prosecuting
the appellant. There is no order reflecting that the Court
having taken note of the information made before it,
initiated suo motu proceedings on the basis of such
information furnished and required the respondents
only to assist the Court till the disposal of the matter.
On the contrary, the respondents are shown as the
petitioners in the contempt case before the High Court.
It is thus clear, it is the respondents who initiated the
proceedings and continued the same but without the
written consent of the Advocate General as is required
in law. The proceedings, therefore, were clearly not
maintainable.”

37

37. As pointed out above, in the present case the Bombay Bar

Association and the Bombay Incorporated Law Society have never

been shown as petitioners. The letter sent by the President of the

Bombay Bar Association and the President of the Bombay

Incorporated Law Society is not addressed to this Court to initiate

contempt proceedings. The letters were addressed to the

President of India, the Chief Justice of India and the Chief

Justice of the High Court of Bombay and the prayer made therein

was that the complaints by the Indian Bar Association and

Human Rights Security Council should be rejected. There is no

prayer for initiating contempt proceedings. These letters were

placed in the office of the Judges of this Court and after taking

note of the averments made therein they decided to issue notice

of contempt. This is nothing but a suo motu action on reading

the complaints and the letter of the President of the Bombay Bar

Association and the President of the Bombay Incorporated Law

Society and hence this cannot be termed to be a contempt

petition requiring the consent of the Attorney General.

Judge in their own Cause

38

38. We shall now deal with the arguments of the alleged

contemnors that the Bench could not have issued the notice

without the matter being placed before it and further that this

amounted to them acting as judges in their own cause. A

number of judgments have been cited in this regard but we need

not refer to all of them. Strong reliance is placed by the alleged

contemnors on the judgment of Justice Ranganathan in P.N.

Duda’s case (supra) that the practice being followed by the Delhi

High Court should be followed in this Court also. We are unable

to accept this contention and find no merit in the same. As

already observed above, those observations were in the nature of

obiter and the said observations cannot override the statutory

rules.

39. It is true that the Chief Justice is the master of the roster

and in normal course a matter can be listed before a Bench only

on the basis of orders issued by the Chief Justice. However, here

the situation is totally different. The Bench was already dealing

with Suo Motu Contempt Petition (Crl.) No. 1 of 2019. The letter

of the President of the Bombay Bar Association and the President

of the Bombay Incorporated Law Society was placed before the

39
Bench. Along with this letter the complaints filed by Shri Vijay

Kurle and Shri Rashid Khan Pathan were annexed. The Bench

took suo motu notice of the allegations made in these two

complaints and directed that contempt proceedings be initiated.

Thereafter, in accordance with the principles of natural justice

and also the principle that the Chief Justice is the master of the

roster the Bench directed that the matter may be listed before the

Chief Justice for placing it before the appropriate Bench. The

Chief Justice, though no doubt, master of the roster, is first

amongst the equals and every Judge of the Supreme Court is as

much part of this Court as Hon’ble the Chief Justice. The Judges

of this Court can exercise their powers under Article 129 of the

Constitution which is a constitutional power untrammelled by

any rules or convention to the contrary. Even so, the Bench in

deference to the principle of master of the roster, after taking

cognizance of the scandalous allegations made in the complaints

of the alleged contemnors and issuing notice to them directed

that the matter be placed before Hon’ble the Chief Justice for

listing before an appropriate Bench. This, in our view, is the

proper procedure. If an article, letter or any writing or even

something visual circulating in electronic, print or social media or

40
in any other forum is brought to the notice of any Judge of this

Court which prima facie shows that the allegation is

contemptuous or scandalises the court then that Judge can

definitely issue notice and thereafter place it before Hon’ble the

Chief Justice for listing it before an appropriate Bench.

40. The alleged contemnors have relied upon the judgment in

Divine Retreat Centre v. State of Kerala & Others.13 wherein

it was observed that individual writing should be placed before

the Chief Justice as to the proposed action on such petitions. It

was held:

“71. …The individual letters, if any, addressed to a
particular judge are required to be placed before the
Chief Justice for consideration as to the proposed action
on such petitions. Each Judge cannot decide for himself
as to what communication should be entertained for
setting the law in motion be it in PIL or in any
jurisdiction.”

At the outset, we may note that these observations were made in

the context of public interest litigations and not for contempt

petitions and the jurisdiction of this Court to punish for

contempt of itself is a very wide jurisdiction. Furthermore, it is

not as if the letter were addressed to the Members of the Bench.

13

(2008) 3 SCC 542

41
As observed above, the letter sent by the President of the Bombay

Bar Association and the President of the Bombay Incorporated

Law Society was addressed to the President of India, the Chief

Justice of this Court, and the Chief Justice of the High Court of

Bombay. Presumably, it must have been the Office of the Chief

Justice which sent the letters to the Bench. In any event, that

will not have any bearing on this case. We are clearly of the view

that the Bench was fully justified in taking note of the letter sent

by the Bombay Bar Association and the President of the Bombay

Incorporated Law Society and the documents annexed thereto

which included the complaints sent by Shri Vijay Kurle and Shri

Rashid Khan Pathan. After issuing notice the bench directed

that the matter be placed before Hon’ble the Chief Justice for

placing before the appropriate bench. This is valid and proper

procedure and the bench did not act as judge in their own cause.

Only notice was issued and thereafter the matter was assigned to

this bench.

Source of Information

41. Another argument raised is that the Bench should have

disclosed from where it got the information. The alleged

42
contemnors have cited a number of decisions in this regard.

Dealing with the issue of disclosure of source of information in C.

K. Daphtary’s case (supra) this Court held as follows:­

“79….The first respondent said that the source of
information had not been disclosed. Para 2 of the petition
refers to proceedings in this Court and it was not
necessary to have disclosed any further source of
information. As far as paras 3 and 4 are concerned, the
first respondent admits that he approached members of
Parliament to file a motion of impeachment against Mr.
Justice Shah. Calling this a “campaign” is only to
describe in a word his activities. Whether it should be
strictly called a campaign is beside the point. The
essential facts mentioned in Para 5 are admitted by the
first respondent. Therefore the fact that the source of
information was not disclosed does not debar us from
taking the facts into consideration. The last sentence of
Para 5 viz., “The said pamphlet was, as the petitioners
believe, sold or offered for sale to the public by
Respondent No. 3” is a matter of belief. Para 6 contains
inferences and submissions in respect of which there was
no question of disclosing the source of information. Para
7 contains extracts from the booklet or the pamphlet
which was attached as an annexure. In view of the
document having been attached it was not necessary that
the source of information regarding Para 7 should have
been disclosed. The allegations in Para 9 of the petition
are supported by an affidavit of Mr. B.P. Singh, Advocate,
who has verified that the contents in his affidavit are true
to his knowledge….”

42. We fail to understand how Shri Vijay Kurle can urge that

the source of information should be disclosed. His complaint is

addressed amongst all others to Judges of this Court which

43
obviously includes the two Judges who are members of the

Bench.

43. In the instant case, the disclosure of the information is

made in the order itself where it is clearly recorded that the

action has been taken on the basis of the letter sent by the

President of the Bombay Bar Association and the President of the

Bombay Incorporated Law Society to the President of India and

the Chief Justice of India in response to the complaints made by

the alleged contemnors. The complaints of Shri Vijay Kurle and

Shri Rashid Khan Pathan were also attached with the letters and

after taking note not only of the letter of the President of the

Bombay Bar Association and the President of the Bombay

Incorporated Law Society but also the prayer clauses of both the

complaints sent by the alleged contemnors and the scandalous

allegations made in the complaints, the notice was issued. The

source of information is the letter sent by the Bombay Bar

Association and the President of the Bombay Incorporated Law

Society, as is apparent from the order initiating contempt

proceedings. Therefore, we find no merit in this plea.

44
Freedom to criticise

44. Before dealing with these allegations it would be apposite to

set out the law with regard to fair criticism of the judgments of

the Court. There can be no manner of doubt that every citizen is

entitled to criticise the judgments of this Court and Article 19 of

the Constitution which guarantees the right of free speech to

every citizen of the country must be given the exalted status

which it deserves. However, at the same time, we must

remember that clause (2) of Article 19 of the Constitution also

makes it clear that the right to freedom of speech is subject to

existing laws for imposing reasonable restrictions as far as such

law relates to contempt of Court. This right of freedom of speech

is made subject to the laws of contempt which would not only

include Contempt of Courts Act but also the powers of the

Supreme Court to punish for contempt under Article 129 and

142(2) of the Constitution. Similar powers are vested with the

High Courts.

45. The purpose of having a law of contempt is not to prevent

fair criticism but to ensure that the respect and confidence which

the people of this country repose in the judicial system is not

45
undermined in any manner whatsoever. If the confidence of the

citizenry in the institution of justice is shattered then not only

the judiciary, but democracy itself will be under threat.

Contempt powers have been very sparingly used by the Courts

and rightly so. The shoulders of this Court are broad enough to

withstand criticism, even criticism which may transcend the

parameters of fair criticism. However, if the criticism is made in

a concerted manner to lower the majesty of the institution of the

Courts and with a view to tarnish the image, not only of the

Judges, but also the Courts, then if such attempts are not

checked the results will be disastrous. Section 5 of the Contempt

of Courts Act itself provides that publishing of any fair comment

on the merits of any case which has been heard and finally

decided does not amount to contempt.

46. In Dr. D.C. Saxena v. Hon’ble the Chief Justice of India14

after referring to a large number of judgments to which we need

not refer, this Court held that though freedom of speech is an

essential part of democracy, it is equally necessary for society to

regulate such freedom of speech or expression in terms of the

exceptions to Article 19 of the Constitution. Bonafide criticism of
14
(1996) 5 SCC 216

46
any institution including the judiciary is always welcome.

Healthy and constructive criticism of the judgments cannot

amount to contempt of Court. However, if the allegations levelled

go beyond the ambit of criticism and scandalise the Court then

there can be no manner of doubt that such utterances or written

words would amount to contempt of Court. This Court In Re:

Arundhati Roy15 while dealing with Section 2 of the Act held as

follows:

“28. As already held, fair criticism of the conduct of a
Judge, the institution of the judiciary and its functioning
may not amount to contempt if it is made in good faith
and in public interest. To ascertain the good faith and the
public interest, the courts have to see all the surrounding
circumstances including the person responsible for
comments, his knowledge in the field regarding which the
comments are made and the intended purpose sought to
be achieved. All citizens cannot be permitted to comment
upon the conduct of the courts in the name of fair
criticism which, if not checked, would destroy the
institution itself…”

47. The alleged contemnors have relied on certain observations

made in the case of P.N. Duda (supra). That was a case where a

former Judge of the High Court, who was Minister for Law,

Justice and Company Affairs in the Central Government,

15
(2002) 3 SCC 343

47
criticised the functioning of the Supreme Court and one of the

principal criticisms of this Court was that it was comprised of

Judges belonging to the upper echelons of society and therefore,

the Court was more sympathetic to industrialists and

representatives of elitist culture etc. The Court while discharging

the notice held that the speech of the Minister must be read in

proper perspective. However, this Court observed that the

Minister would have been better advised to avoid certain portions

of the speech and held that the speech did not amount to

interference with the administration of justice or bringing the

administration of justice into disrepute. Dealing with the

aforesaid observations in Dr. D.C. Saxena’s case (supra) this

Court held as follows:

“34. In P.N. Duda v. P. Shiv Shankar [(1988) 3 SCC 167 :

1988 SCC (Cri) 589 : AIR 1988 SC 1208] this Court had
held that administration of justice and judges are open to
public criticism and public scrutiny. Judges have their
accountability to the society and their accountability
must be judged by the conscience and oath to their office,
i.e., to defend and uphold the Constitution and the laws
without fear and favour. Thus the judges must do, in the
light given to them to determine, what is right. Any
criticism about the judicial system or the judges which
hampers the administration of justice or which erodes
the faith in the objective approach of the judges and
brings administration of justice to ridicule must be
prevented. The contempt of court proceedings arise out of
that attempt. Judgments can be criticised. Motives to the
judges need not be attributed. It brings the

48
administration of justice into disrepute. Faith in the
administration of justice is one of the pillars on which
democratic institution functions and sustains. In the free
market­place of ideas criticism about the judicial system
or judges should be welcome so long as such criticism
does not impair or hamper the administration of justice.
This is how the courts should exercise the powers vested
in them and judges to punish a person for an alleged
contempt by taking notice of the contempt suo motu or at
the behest of the litigant or a lawyer. In that case the
speech of the Law Minister in a Seminar organised by the
Bar Council and the offending portions therein were held
not contemptuous and punishable under the Act. In a
democracy judges and courts alike are, therefore, subject
to criticism and if reasonable argument or criticism in
respectful language and tempered with moderation is
offered against any judicial act as contrary to law or
public good, no court would treat criticism as a contempt
of court.”

48. There can be no manner of doubt that any citizen of the

country can criticise the judgments delivered by any Court

including this Court. However, no party has the right to attribute

motives to a Judge or to question the bona fides of the Judge or

to raise questions with regard to the competence of the Judge.

Judges are part and parcel of the justice delivery system. By and

large Judges are reluctant to take action under contempt laws

when a personal attack is made on them. However, when there

is a concerted attack by members of the Bar who profess to be

the members of an organization having a large following, then the

Court cannot shut its eyes to the slanderous and scandalous

49
allegations made. If such allegations which have not only been

communicated to the President of India and the Chief Justice of

India, but also widely circulated on social media are permitted to

remain unchallenged then the public will lose faith not only in

those particular Judges but also in the entire justice delivery

system and this definitely affects the majesty of law.

49. Though the alleged contemnors claim that they are not

expressing any solidarity with Shri Mathews Nedumpara nor do

they have anything personal against Justice R.F. Nariman, the

entire reading of the complaints shows a totally different picture.

When we read both the complaints together it is obvious that the

alleged contemnors are fighting a proxy battle for Shri

Nedumpara. They are raking up certain issues which could have

been raised only by Shri Nedumpara and not by the alleged

contemnors.

50. Both the complaints are ex­facie contemptuous. Highly

scurrilous and scandalous allegations have been levelled against

the two judges of this Court. In our view, the entire contents of

the complaints amount to contempt. Since both the complaints

run into more than 250 pages it is not possible to quote the

50
entire complaints and we are dealing with some of the more

scandalous allegations levelled in the said complaints. We have

grouped certain allegations together.

1st Complaint dt.20.03.2019 by Shri Vijay Kurle

51. On pages 49­51 of the 1st complaint, the following

allegations have been made:

“III) CHARGE # :­ PERSONAL BIAS PROCEEDING
VITIATED.

The another illegality is regarding conflict of interest &
violation of law laid down by Hon’ble Supreme Court in
the case of State of Punjab Vs. Davinder Pal Singh
Bhullar & Ors. (2011) 14 SCC 770.

That since last 2 years, Advocate Nedumpatra is
posting articles against Advocate Fali S. Nariman. He
also filed Writ Petition before Delhi High Court being W.P.
(C) No.2019 of 2019, where he raised the issue of
Advocate Fali Nariman practising in Supreme Court
where his son Rohington Fali Nariman is a Judge.
Under these circumstances having direct conflict of
interest and having prejudice with Advocate Nedumpara,
Justice Rohington Fali Nariman was disqualified to hear
the case and he should have recused himself from the
cases where Advocate Nedumpara is appearing.

xxx xxx xxx
But instead of maintaining dignity & sobriety of the
Supreme Court the Respondent Judge Rohington Fali
Nariman heard the case and brought the dignity &
majesty of Hon’ble Supreme Court into disrepute.”

The alleged contemnors have alleged that Shri Nedumpara was

posting articles against Shri F. S. Nariman, a senior advocate

51
who happens to be the father of Justice R. F. Nariman. It is

alleged that therefore there was a direct conflict of interest and

Justice R.F Nariman was disqualified from hearing the case

involving Shri Nedumpara. We fail to see how there is any

conflict of interest. Shri F.S. Nariman, Senior Advocate is a

doyen of the Indian Bar and a legal luminary in his own right.

Justice R.F. Nariman is his son and a Judge of this Court. That

however would not create any conflict of interest between Justice

Nariman and Shri Nedumpara because Shri F.S. Nariman and

Justice R. F. Nariman are two different entities. The purported

article has not been placed on record. In any event, it was Shri

Nedumpara who could have raised this defence before the Bench

and he, in fact, has filed an affidavit of apology accepting that he

has committed contempt. The alleged contemnors have

unnecessarily and without any reason questioned the impartiality

of Judges of this Court.

52. As far as the allegations made at Page 55 of the first

complaint are concerned, we find that the Shri Vijay Kurle could

have said what he wanted to say in the first paragraph quoted

hereinabove but what is totally unacceptable is the second part of

the paragraph where Shri Vijay Kurle assumes the role of a judge

52
and says that “The only irresistible conclusion that can be drawn

is that there were no malafides on the part of Advocate

Nedumpara and if it were put in notice calling explanation in open

Court then would have exposed Justice Nariman in front of

advocates and public and that’s why a very strange and different

method is adopted by Justice Nariman by pronouncing conviction

of advocate.” This shows that he is fighting a proxy battle for Mr.

Nedumpara. What is even more objectionable is the language

used thereafter that if Shri Nedumpara was put to notice then it

would have exposed Justice Nariman in front of advocates and

public. This allegation also is a scandalous allegation. We are

not looking into the merits of the decisions. We cannot comment

on the merits of the decisions of the Bench headed by Justice

Nariman but we must note that after holding Shri Nedumpara

guilty he was heard on the point of sentence and thereafter he

filed an affidavit which reads as follows:

“AFFIDAVIT

I, Mathews J. Nedumpara, Advocate, aged 60 years,
Indian Inhabitant, residing at Harbour Heights, “W”
Wing, 12­F, 12th Floor, Sassoon Docks, Colaba, Mumbai­
400 005, now in Delhi, do hereby swear and state as
follows:­

53

1. A Bench of this Hon’ble Court comprising Hon’ble Shri
Justice Rohinton F. Nariman and Hon’ble Shri Justice
Vineet Saran, by judgment and order dated 12 th March,
2019, was pleased to hold me guilty for contempt in the
face of the Court and list the case for hearing on the
question of punishment.

2. I happened to mention the name of Shri Fali S.
Nariman to buttress my proposition that even legendary
Shri Fali Nariman is of the view that the seniority of a
lawyer should be reckoned from the date of his enrolment
and nothing else. However, I was misunderstood. I along
with some office bearers of the National Lawyers’
Campaign for Judicial Transparency and Reforms have
instituted Writ Petition No.2199/2019 in the High Court
of Delhi for a declaration that the Explanation to Rule 6
of the Bar Council of India Rules is void inasmuch as it
explains that the word “Court” does not mean the entire
Court, but the particular Court in which the relative of a
lawyer is a Judge. I instituted the said petition only to
raise the concern many lawyers share with me regarding
the immediate relatives practising in the very same Court
where their relative is a Judge. In retrospection I realize
that it was an error on my part to have arrayed Shri Fali
Nariman as a Respondent to the said petition. I regret the
same; no words can sufficiently explain my contrition and
regret. I also in retrospection realize that I have erred
even during the conduct of the above case before this
Hon’ble Court and I probably would not have kept upto
what is expected of me as a lawyer in the Bar for 35 years
and crossed the age of 60. I feel sorry, express my
contrition and tender my unconditional apology, while
maintaining that some of the accusations levelled against
me in the judgment dated 12th March, 2019 are
absolutely wrong, which are, ex facie, black and white,
and as incontrovertible as day and night.

3. The apology tendered by me hereinabove be accepted
and I may be purged of the contempt.

Solemnly sworn at Delhi Sd/­
this 27th day of March, 2019 (Mathews J. Nedumpara)”

53. A close perusal of the affidavit filed by Mr. Nedumpara

shows that in retrospect Shri Nedumpara felt that it was an error

54
on his part to have arrayed Shri F.S. Nariman as respondent in

the writ petition filed by him in the Delhi High Court. He states

that he regrets the same and no words can sufficiently explain

his contrition and regret. He also states that he realises that he

had erred during the conduct of the case before this Court. The

two complaints filed by Shri Vijay Kurle and Shri Rashid Khan

Pathan were sent even before Shri Nedumpara had been heard on

the issue of sentence. What the complainants alleged in the

complaints is disproved from the apology of Shri Nedumpara

submitted to the Court. This unqualified apology of Shri

Nedumpara was accepted by the Court. In this background we

are unable to find any plausible explanation for Shri Vijay Kurle

to have used the words “exposed Justice Nariman in front of

advocates and public”. No lawyer can threaten to expose a judge

in front of the advocates and public on the basis of some vague

and reckless allegations. This language is highly disrespectful

and scandalises the Court and, therefore, amounts to committing

contempt of the Court.

54. On Page 60 of the first complaint Shri Vijay Kurle has stated

as follows:

55
“The threats given by Justice Nariman to Advocate
Nedumpara on 5th March, as published in “Bar & Bench”
is itself an offence of Contempt on the part of Justice
Rohington Fali Nariman.”

55. What has been published in Bar & Bench has not been

placed on record. Shri Vijay Kurle has filed a large number of

documents but has not stated on what basis he has alleged that

Shri Nedumpara was threatened by Justice Nariman.

Admonishment by a Judge cannot be said to be a threat. Since

the alleged contemnors have not placed any material on record to

show how Justice Nariman threatened Shri Nedumpara, this

itself amounts to making a false accusation against a Judge.

Shri Nedumpara in his affidavit has not made any reference to

any threats given to him by any Member of the Bench. This

clearly shows that the allegation made by Shri Vijay Kurle is

false.

56. It is alleged by Shri Vijay Kurle, that Justice Nariman had

“misused his power to use material outside the court record and

received by personal knowledge without disclosing its source” and

therefore, his action was against earlier judgments of this Court

and amounted to contempt of this Court. Various judgments

have been cited but most of them are not at all relevant to the

56
case in hand. Furthermore, even if he wanted to criticise the

judgment on this ground, Shri Vijay Kurle could have used

temperate language but what has been said at Page 69 of the first

letter is highly contemptuous. The said allegations read as

follows:

“The malafides of Justice Rohington Fali Nariman are
writ large as can be seen from the fact that the materials
relied by him in para 3,4,5,6,7,8 are totally the personal
work of Justice Rohington Nariman and as can be easily
inferred. It is clear that the most of the material supplied
is from Justice S.J. Kathawala of Bombay High Court
who in turn is Rohington’s close and rival of Adv.
Nedumpara.”

57. A judge may be right or wrong and a party may criticise the

judgment on any ground. However, in the allegations quoted

hereinabove various serious charges of malafide have been

levelled against a sitting Judge of this Court. Further, it is stated

that material relied upon by Justice Nariman was supplied by

Justice Kathawala of Bombay High Court, who is close to Justice

Nariman and also happens to be a rival of Shri Nedumpara. Shri

Vijay Kurle has failed to place any material on record to show

that the material relied upon by Justice Nariman was supplied by

Justice Kathawala. In fact, a perusal of the material shows that

the materials relied upon were a matter of public record and were

part of orders passed in cases that Shri Nedumpara appeared in

57
or part of petitions filed by Shri Nedumpara himself. There is not

an iota of evidence on record to show that Justice Kathawala is

close to Justice Nariman. We also fail to understand on what

basis the Shri Vijay Kurle has stated that Justice Kathawala is a

rival of Shri Nedumpara. There is no question of rivalry between

the Bar and the Bench or between a Judge and a lawyer. Justice

Nariman in his judgment has relied upon the orders passed by

the Bombay High Court in various cases. These are all public

documents and we fail to understand how the alleged

contemnors assumed that these documents were supplied by

Justice Kathawala.

58. Some allegations made on Pages 2­3 of the first complaint

are as follows:

“CHARGE 2 # Lack of basic knowledge to interpret the
ratio decidendi of any case law.

xxx xxx xxx

CHARGE 3 # Don’t know the basic law of criminal
jurisprudence and basic law of evidence and acted in
denial of whole basis of indian constitutional.”

59. Similarly, the allegations made at Pages 71­72 of the first

complaint are as follows:

58
“Hence Justice Rohington Fali Nariman by placing
reliance on the Notice in Contempt proceeding, and
making it as a basis to draw conclusion of conduct of an
advocate knowing fully well that the said matter is still
subjudice before sub­ordinate court, have violated
Fundamental rights of Advocate Nedumpara and acted
against the Constitutional mandate and thereby breached
the oath taken as a Supreme Court Judge and is
unbecoming of a Judicial officers.

Therefore reliance placed by Justice Rohington Fali
Nariman on show cause Contempt notice is illegal and
shows his lack of knowledge.

Hence the one­sided blanket reliance by some illiterate
Judges having half­backed knowledge of law will broke
the fabric of cardinal principles of criminal and civil
jurisprudence.

VI) CONSPIRACY TO DISTROY IMAGE AND KEEP
ADVOCATE AWAY FROM HIS CLIENTS CAUSING
SERIOUS PREJUDICES TO THEIR SUBJUDICE CAUSE
EX­FACE PROVED:

In the present case Justice Nariman is being aggrieved by
Petitions filed by Nedumpara against his father Fali
Nariman and also against his close Justice Kathawalla
and therefore had taken reference of different irrelevant
cases and inadmissible evidences. The object of the
Justice Nariman as stated eatlier, is not really to cleanse
and purify the legal profession, or to protect dignity and
majesty of justice but to silence the advocates who
appear for his opponents, so that litigation could be won
on a different turf.”

As far as these allegations are concerned, the Bench was only

referring to various cases where action had been initiated against

Shri Nedumpara and noted that he is in a “habit of terrorising

Tribunal members and using intemperate language to achieve his

ends before several Judges of the Bombay High Court”. Shri

59
Nedumpara filed a discharge application in these proceedings

stating that he has nothing to do with these complaints.

Therefore, how can the alleged contemnors now raise issues

which were never raised by Shri Nedumpara. On Page 71 of the

first complaint it has been alleged that by placing reliance on the

notice issued in contempt proceedings the learned Judge has

violated fundamental rights of Shri Nedumpara and therefore

breached his oath taken as a Judge of this Court.

60. The allegations made at Page 72 of the first letter are highly

derogatory and scandalous. The Bench placed reliance on a

show cause notice in reference to Shri Nedumpara to show that

the “advocate has embarked on a course of conduct which is

calculated to defeat the administration of justice in this country”.

This in no way reflects lack of knowledge. The language used in

the latter portion quoted hereinabove indicating that Justice

Nariman is an illiterate Judge having half baked knowledge of law

is a scandalous and scurrilous allegation which definitely

amounts to contempt of Court.

61. In Charge VI at Page 72, Shri Vijay Kurle has alleged that

Justice Nariman wanted to keep advocates away from his Court.

60

62. The alleged contemnors by saying that the object of Justice

Nariman while taking action against Shri Nedumpara was “not

really to cleanse or purify legal profession or to protect the dignity

and majesty of justice but to silence the advocates who appear for

his opponents, so that the litigation could be won on a different

turf” have made allegations that are scandalous and challenge

the impartiality of Judges of this Court.

63. Again, in Para 79 for the first letter, the alleged contemnors

have stated as follows:

“However Justice Nariman is trying to create an
atmosphere of prejudice against some clients so that
no advocate will accept their brief and they will be
denied their constitutional right of being represented
by a Lawyer of their choice.”

These allegations that Justice Nariman is wanting to create an

atmosphere of prejudice against some clients is a false allegation

for which no supporting material has been given by the alleged

contemnors in their reply. We do not even understand how the

order passed in Writ Petition (C) No. 191 of 2019 or in Suo Motu

Contempt Petition No. 1 of 2019 would lead to the conclusion

that some clients would be prejudiced as no advocate would

61
accept their brief. There is no basis for this absolutely false

allegation which also amounts to contempt of Court.

64. On Page 81 of the first complaint Shri Vijay Kurle has stated

as follows:

“It is settled law that person having half backed
knowledge of law should not be allowed to participate in
court proceedings [Vide:N. Natarajan Vs. B.K. Subba
Rao AIR 2003 SC 541]
Then how the person having half backed knowledge
will be allowed to hold the post of Judges in the of the
Highest Court of Country i.e. Supreme Court.

This Country had seen the activities of Justice Karnan,
where he had passed sentence of punishment against the
Judges of Supreme Court. In the present case, the
advocate, who is also officer of the Court is being
punished by Justice Rohington Nariman & Justice Vineet
Saran (both are Justice Karnan in making) in an
arbitrary manner at their whim & fancies, rather to
satisfy their personal grudges and settle the scores of
people who are interested to see Adv. Nedumpara is out
of his mission of Transparency. If this is not checked in
time then this evil get propagated as tolerance will boost
their confidence.”

These allegations on the face of it are highly contemptuous. Shri

Vijay Kurle is saying that both the Judges who comprised the

Bench have half baked knowledge of law and they could not have

been allowed to hold the post of Judges in the Supreme Court of

India. The language used is highly intemperate and scandalises

the Court and, therefore, amounts to contempt.

62

65. The next allegations on Pages 86­87 are as follows:

“Hence the Observation by Justice Rohington Fali
Nariman are Unconstitutional and is Contempt of
Supreme Court and also reflects their poor level of
understanding and lack of basic knowledge of law.
As per section 52 of Indian Penal Code Justice Rohington
Fali Nariman is not entitled for any protection of good
faith.

Section 52 reads as under;

“Good faith.­ Nothing is
said to be done or believed
in “good faith” which is
done or believed without
due care and attention.”

33. Furthermore in para 8 of the Judgment dated
th
12 March, 2019 Justice Rohington Fali Nariman as he
felt aggrieved of case against his close Judge of Bombay
High Court (Justice S.J. Kathawala) had observed that
the prayers of W.P.(L) No.1180 of 2018 are
contemptuous. This is again travesty of Law on two
counts:

(i) Said Petition was decided by Division Bench of
High Court vide order dated 26.07.2018 and at that
time High Court did not find it contemptuous then
how Justice Rohington Fali Nariman after a period of
8 months can not comment it to be contemptuous.

(ii) Secondly the prayers were regarding initiation of
Criminal proceeding against Justice S.J. Kathawalla
who acted against various Supreme Court
Judgments and making such prayers is fundamental
right of the victim it cannot be termed as Contempt.”

66. Further on Page 124 of the first complaint it is alleged as

follows:

“Hence it is clear that Justice Rohington Fali Nariman is
a person who neither knows the law nor knows its

63
application i.e. neither Command over shastras nor put it
into practice.”

The alleged contemnors could have criticised the correctness of

the judgment, but the allegation that observations of Justice

Nariman amount to contempt of Court or show his poor level of

understanding and lack of basic understanding of law is not

language which a lawyer is expected to use against a sitting

Judge of the Supreme Court. Again, in this very quoted portion a

totally unfounded allegation has been made that Justice Nariman

was aggrieved since allegations had been levelled against his

close Judge of the Bombay High Court (Justice S.J. Kathawala).

The conclusion drawn by Shri Vijay Kurle is not only incorrect

but totally false and appears to have been done with the mala

fide intention of harming the reputation of Justice Nariman and

raising questions with regard to his impartiality or ability. In

fact, Writ Petition No.(L)­1180 of 2018 was filed by Shri

Nedumpara before the Bombay High Court praying that criminal

action under Contempt of Courts Act be initiated against Justice

Kathawala. This writ petition was dismissed by the Bombay High

Court. The Bombay High Court did not decide whether Shri

Nedumpara had committed contempt of Court or not. But the

allegations made by Shri Nedumpara were not accepted. This
64
means that the Bombay High Court did not find any merit in the

petition of Shri Nedumpara and dismissed the same. Nothing

has been placed on record to show that this judgment is under

challenge before this Court. The Bombay High Court was not

dealing with the contempt proceedings. The Bench has only

relied upon the judgment to support his observation that Shri

Nedumpara was in the habit of making such accusations against

sitting Judges of the Court.

67. We also fail to understand how Shri Vijay Kurle who is a

lawyer claims that it is his fundamental right to initiate criminal

proceedings against Judges. Some members of the Bar cannot

hold the judiciary to ransom by threatening Judges of initiating

criminal action. If this trend is not dealt with firmly then any

party against whom a case is decided will start filing criminal

cases against judges.

68. The relationship between the Bench and the Bar should be

a cordial relationship with mutual respect for each other.

Lawyers who try to browbeat or threaten judges have to be dealt

with firmly and there can be no ill­founded sympathy for such

65
lawyers. Such lawyers do nothing to help the legal fraternity

much less the Bar.

69. Shri Vijay Kurle has further made the following observations

in Para 35 on page 103 of the first complaint:

“35. In view of the above settled law it is clear that
Justice Rohington Fali Nariman is not having basic
knowledge of law or he has a tendency to lower down the
authority of Hon’ble Supreme Court by treating him
above law.”

Again, these allegations are not only totally baseless but the

allegations themselves lower the majesty of this Court.

70. Shri Vijay Kurle in Para 36 on page 112 of his letter has

stated as follows:

“36. Worst part is that Justice Justice Rohington Fali
Nariman in para 8 of his order tried give a certificate to
Justice Kathawalla that he is being attacked for lawful
order. In fact the petition was filed by advocate for
observations against an advocate without issuing any
notice to him which is are prima­facie illegal and against
the settled legal principle by various Supreme Judgments
and more particularly in Sarwan Singh Lamba’s Case
(Supra). Said matter being subjudice should not be
commented by Justice Rohington Fali Nariman.

So the Criminal minded Judges by twisting material
facts, by misleading legal position and by misinterpreting
the settled law of Hon’ble Supreme Court are trying to
make the Court as their personal property. Absolute
Power corrupts Absolutely. And such type of Judge are
running syndicate to extort money for giving favourable
orders to the underserving people.”

66
We are constrained to observe that Shri Vijay Kurle has totally

misread and misquoted the order of Justice R.F. Nariman. In

Para 8 of the said order in Writ Petition (C) No. 191 of 2019 after

referring to the order passed by a learned Single Judge of the

Bombay High Court it is recorded that Shri Nedumpara filed Writ

Petition No.L­1180 of 2018 in his own name against the learned

Single Judge of the Bombay High Court who has passed the

order and the learned Single Judge was arrayed as the sole

respondent in the said writ petition. The Court records that the

petition was dismissed as not maintainable. Therefore, the

allegations made, that the matter was subjudice are totally false

and misleading. The Court has noted that the matter has been

finally decided and no material has been placed on record to

show that this judgment has been challenged.

71. What is even more shocking is the next paragraph where it

is stated that criminal minded judges by twisting facts and by

misleading legal position and misinterpreting the laws of this

Court are trying to make the Court as their personal property. In

the context in which these allegations have been made it is

apparent that though not named, these allegations are against

the Judges who constitute the Bench which decided Writ Petition

67
(C) 191 of 2019. No discussion is required to hold that such

allegations are scandalous and amount to contempt of Court.

Shri Vijay Kurle has the temerity and gall to make the

accusations against 2 sitting Judges of this Court alleging that

they are criminal minded Judges, that they have twisted material

facts and have misinterpreted the settled laws of this Court. We

fail to understand what is meant by ‘misleading legal position’.

The allegations that these Judges are trying to make the Court

their personal property and are running a syndicate and passing

favourable orders to undeserving people to extort money are

scandalous and scurrilous and no great discussion is required to

hold that they amount to contempt of Court.

72. In Para 37, on page 113 of the first complaint, Shri Vijay

Kurle alleges that Shri Nedumpara wanted prosecution of a

learned Judge of the Bombay High Court and also wanted

compensation for violation of his fundamental rights. That

petition has been dismissed by the Bombay High Court. As far

as we know that judgment has not been challenged which clearly

indicates that the Bombay High Court did not accept the

contention of Shri Nedumpara that the judge was liable to be

prosecuted or that Shri Nedumpara was entitled to any

68
compensation. It is surprising that thereafter the alleged

contemnors made the following submissions on page 114 of the

first letter:

“So observation of Justice Justice Rohington Fali
Nariman are prima­facie seems to be the outcome of his
frustrated mind or done to help Justice Kathawala of
Bombay High Court whose orders are set aside by Higher
Benches for his misuse of power with strict & harsh
observation.[Trident Steel and Engineering Co. Vs.
Vallourec 2018 SCC OnLine Bom 4060]. The said
Justice Kathawala who is caught in sting opertation &
his corrupt practices are under scrutiny before (Five –
Judge Bench of Hon’ble Bombay High Court). Hence it
is clear that Justice Rohington Fali Nariman tried to save
an accused Judge and in both the eventuality he is unfit
to work as a Judge of a Highest Court and is liable to be
removed forthwith by using powers under “In­House­
Procedure’ as done in Justice Karnan’s case.”

Again, the allegations made are totally scandalous. Alleging that

a judge has passed an order as an outcome of his frustrated

mind is, in our opinion, a highly scandalous allegation. The

other allegation that the order was passed with a view to help

Justice Kathawala is equally scandalous. These allegations also

amount to contempt.

73. On Page 93 of the first letter the following allegations have

been made:

“So Division Bench of Hon’ble Bombay High Court which
decided the Writ Petition of Mr. Nedumpara did not find it
as Contempt. Full Bench of Supreme Court did not find

69
it as Contempt but after 8 months Justice Rohington Fali
Nariman call it as contemptuous it not only being judicial
impropriety to be abide by views of larger bench but even
by brother Judges but also proves ulterior motive of
Justice Nariman.

The Petition for prosecution of Judge can never be
contempt if not being frivolous. Rather it is duty of the
advocate to make complaint of corrupt Judges.”

74. Further on Page 134 of the first letter the alleged

contemnors have made the following allegations:

“In present case Justice Nariman had done the same
wrong. It is done with malafide intention and for ulterior
purposes as ex­facie proved from the record and
explanation given in the proceeding prasa.

XOXO) Under these circumstances since Justice
Nariman is Judge of a Supreme Court, he does not
deserve any leniency…”

75. On Page 135 of the first letter, Shri Vijay Kurle has made

the following allegations:

“In the present case when Justice Rohington Fali Nariman
had not taken any action on the spot i.e. on 5 th March,
2019 then there was no such urgency to bot to follow the
procedure of Section 14 & Section 15 of Contempt of
Courts Act 1971 as ruled by Full Bench of Hon’ble
Supreme Court in Dr. L.P. Mishra Vs. State of U.P.
(1998) 7 SCC 379 (Supra).

But Justice Rohington Fali Nariman had acted against
the procedure without any explanation as to what is the
urgency to not to follow the procedures mandated under
the law. This itself is a ground to infer that he have been
actuated by an oblique motive or corrupt practice.

70

[Vide :­ R.R. Parekh Vs. High Court of Gujarat (2016)
14 SCC 1]”

The allegations that “this itself is a ground to infer that he have

been actuated by an oblique motive or corrupt practice” is a totally

baseless and unfounded allegation which scandalises this Court

and lowers the majesty of this Court. When any person whether

he be a party to the proceedings or not criticizes a judgment of a

court he could do so as long as that party does not level

allegations of malafide, ulterior motives, extraneous reasons etc.

In the portions quoted above Shri Vijay Kurle has levelled

allegations challenging the impartiality of Judges of this Court

and he has also stated that the orders were passed with malafide

intention and ulterior purpose. These allegations amount to

scandalising the court and therefore there can be no manner of

doubt that Shri Vijay Kurle is guilty of having committed

contempt of this Court.

76. On Pages 150­154 of the first complaint Shri Vijay Kurle

has stated as follows:

“XIII) #CHARGE# PASSING ORDER WITH
ULTERIOR MOTIVE TO SAVE ACCUSED JUDGE
S.J.KATHWALA AGAINST WHOM “INDIAN BAR
ASSOCIATION” GOT DEEMED SANCTION MAKES
JUSTICE ROHINGTON FALI NARIMAN LIABLE FOR

71
PROSECUTION UNDER SECTION 218 OF INDIAN
PENAL CODE.

xxx xxx xxx

This being the position, there was no occasion or reason
for Justice Rohington Fali Nariman to make such
irrelevant, unlawful and uncalled for observation. It is
clear that said observations are made with ulterior motive
to save his friend Justice S.J. Kathawalla and therefore
liable to be prosecuted under section 218 of Indian Penal
Code.

XIV) CHARGE # INABILITY TO INTERPRET THE
SUPREME COURT JUDGMENT:

In para 9 of the judgment Justice Rohington Fali
Nariman relied upon the Constitution Bench judgment in
the case of Sukhdev Singh Sodhi v. Chief Justice S.
Teja Singh
, 1954 SCR 454 to interpret that as per said
ruling the Judge who is personally attacked has to hear
the matter himself. In fact the law laid down in the said
judgment is exactly contrary.”

The allegation that Justice Nariman acted with ulterior motive to

save his friend Justice Kathawala for the reasons stated above is

a totally scandalous and contemptuous allegation. The next

allegation is that Justice Nariman acted in violation of a

judgment of this Court in Sukhdev Singh Sodhi’s case (supra).

Without commenting on the correctness or otherwise of the

allegations, the following observations under this heading are

totally contemptuous:

“This ex­facie proved very poor level of understanding of
Justice Rohington Fali Nariman.

….

72

But this provision and judgment was conveniently,
deliberately ignored by Justice Rohington Fali Nariman or
he may not know this basic law which is sufficient to
prove his incapacity and poor level of understanding
which is sufficient to remove him forthwith from
judiciary.”

The language used by Shri Vijay Kurle that Justice Nariman does

not even know the basic law and, therefore, is incapacitated due

to his poor level of understanding to be removed forthwith from

the judiciary is highly intemperate language which amounts to

gross contempt of Court.

77. At Page133 of the first complaint it is alleged as follows:

“In Kapol Co­op. Bank Ltd. Vs. State of Maharashtra
2005 Cri.L.J.765 it is ruled that the term “Abuse of
Process of Court” means act of bringing frivolous,
vexations and oppressive proceedings.

The same is the act of Justice Rohington Fali
Nariman by bringing Contempt case against Advocate
Nedumpara.”

78. Again, at Pages 167­168 of the first complaint following has

been observed:

“So it is clear that the process of law is being grossly
abused by Justice Rohington Fali Nariman & Justice
Vineet Saran under impressin that the Court is their
personal & private property.

         xxx                       xxx                     xxx



                                    73
        CHARGE # BREACH OF OATH TAKEN AS A HON’BLE
        SUPREME COURT JUDGE BY ACTING PARTIALLY,
        WITH   ILL­WILL AND    NOT UPHOLDING   THE
        CONSTITUTION AND LAW.”



For the reasons stated above the allegation that 2 Judges

consider this Court as their personal property is a scandalous

allegation and amounts to contempt.

79. In the complaint filed by Shri Vijay Kurle in Para 49 on

pages 171­173, there is a reference to the complaint filed by Shri

Rashid Khan Pathan and it is stated that the other complaint

filed by Human Rights NGO is self­explanatory. The allegations

read as follows:

“That the another complaint by Human Right (N.G.O.) in
other matter against Justice Rohington Fali Nariman &
Justice Vineet Saran, is self­explanatory about
incapacity, poor level of understanding, tendency to
undermine the authority of Supreme Court and bringing
the rule of law into disrepute and committing fraud on
power to grant unwarranted relief to the undeserving
accused and denying relief to the deserving victim
woman.

xxx xxx xxx

That accused Justice Rohington Fali Nariman & Vineet
Saran in Criminal Appeal No.387 of 2019 [Aarish Asgar
Qureshi vs. Fareed Ahmed Qureshi
2019 SCC OnLine
SC 306] had with malafide intention to help accused had
observed that police report have no evidentiary value for
directing enquiry against the accused husband on the
application given by wife.

xxx xxx xxx

74
But accused Judges in a hurry to help accused
entertained the appeal against the order directing the
compliant and passed order in utter disregard and
defiance of law laid down by Hon’ble Supreme Court and
also against the statutory provisions of Section 341 of
Criminal Procedure Code and acted unconstitutionally.”

Not only are these allegations scandalous and contemptuous and

undermine the authority of this Court, but this clearly shows

that the Shri Vijay Kurle was aware of the complaint filed by Shri

Rashid Khan Pathan. This clearly indicates that Shri Rashid

Khan Pathan had not only sent the complaint to the Hon’ble

President of India and the Chief Justice of India but had

communicated the same to others including Shri Vijay Kurle and

therefore, this complaint was available in the public domain.

2nd Complaint dt.19.03.2019 by Shri Rashid Khan Pathan

80. We now take up the complaint filed by Shri Rashid Khan

Pathan, who is said to be the National Secretary of the Human

Right Security Council (N.G.O). The basis of the complaint is an

order passed by two Judges of this Court (Justice R. F. Nariman

and Justice Vineet Saran) in Criminal Appeal No.387 of 2019. In

paragraphs 4 and 6 of this complaint, the complainant made the

following allegations:­

75
Pgs. 4­5
“4. The present Complaint is regarding the misuse of
power of Justice Rohinton Fali Nariman & Justice Vineet
Saran while quashing the prosecution ordered by Hon’ble
Bombay High Court against accused Under Section 340
of Criminal Procedure Code.”

xxx xxx xxx

6. The reasoned and lawful order of High Court was set
aside by accused Judge for extraneous consideration and
in contempt of Constitution Bench judgment of Hon’ble
Supreme Court.”

81. Criminal Appeal No. 387 of 2019 was filed by a person who

was aggrieved by the order whereby the High Court had directed

that action be taken against him under Section 340 of the Cr.PC.

Vide judgment dt. 26.02.2019 in Aarish Asgar Qureshi v.

Fareed Ahmed Qureshi and Anr. 16 this court set aside the said

order. In that case the respondent before this Court was

represented by Shri Nilesh Ojha, alleged contemnor no.3 herein.

It was virtually a private case between two parties having no

element of public interest and therefore we do not understand as

to why Shri Rashid Khan Pathan was so upset by this order that

he filed a complaint in his capacity as National Secretary of the

Human Rights Security Council.

16

2019 (4) SCALE 606

76

82. Even assuming that Shri Rashid Khan Pathan, could

criticise the judgment he should have stopped there. But in this

case, Shri Rashid Khan Pathan did not stop at criticising the

judgment. He has unambiguously attributed motives to the

Judges by using phrases such as “judges deliberately ignored the

settled legal position” or “deliberately and conveniently ignored”

reference to certain observations, and “deliberately

misinterpreted” certain judgments cited before the Court.

Further, it is alleged that the fact that the Bench acted in

defiance of the Constitution Bench judgment of the Court is

sufficient to prove the mala fide of the accused Judges. First of

all, it is not for Shri Rashid Khan Pathan to decide whether the

judgment is correct or not. There is a legal procedure established

whereby a review petition or a curative petition could be filed. We

cannot go into the merits of the judgment but even assuming

that the judgment is not in consonance with the judgment of the

Constitution Bench then also that is no ground to allege mala

fide against the Judges comprising the Bench. He has also made

allegations that the Judges have breached the oath of office and

acted in a biased manner.

77

83. One of the reasons given by Shri Rashid Khan Pathan for

filing the complaint is that he had filed a complaint against Shri

Fali S. Nariman, Senior Advocate of this Court, alleging anti­

national activities being committed by Shri Fali S. Nariman. In

that case, Shri Rashid Khan Pathan was represented by Shri

Nilesh Ojha, alleged contemnor no.3. On this ground, it is

averred that Justice Nariman should not have heard the matter.

The complaint in question is stated to have been filed on

19.02.2019. No material has been placed on record to show

whether notice, if any, was issued on this complaint. The

judgment in question was delivered on 26.02.2019 and there was

no request by Shri Nilesh Ojha that any of the Judges should

recuse from the hearing of the matter. There is no material to

show that the factum of this complaint was brought to the notice

of the Hon’ble Bench. Even if that had been brought to the

notice, we find that this should not be a sufficient ground for

recusal. If Judges start recusing on any such frivolous grounds,

it would lead to forum hunting. If a litigant wants to avoid any

Judge, he can easily ensure that a complaint, frivolous or

otherwise, is filed against a Judge or a member of his family and

then ask for recusal of the Judge. We cannot permit the

78
judiciary to be held ransom at the hands of such litigants or

lawyers.

84. There are other parts of the complaint by Shri Rashid Khan

Pathan that we would like to highlight:­

Pg.16
“11) xxx
So the observations of Justice Rohinton Fali Nariman
& Justice Vineet Sareen are not only per­incuriam but
Contempt of law laid down by Full Bench of Hon’ble
Supreme Court and also reflects their lack of basic
knowledge.”

Pg. 20
“But while passing the final order, the reference to said
observations were deliberately and conveniently ignored
by the accused Judges more particularly by Justice
Rohinton Fali Nariman.”

Pg. 33
“This judgement was relied and referred by respondent
Judges in their judgment dated 26th February, 2019 but
deliberately misinterpreted it with a view to set aside the
lawful order thereby giving undue advantage to accused.”

Pg. 34
“But the Respondent Judges deliberately ignored the
settled legal position by Supreme Court and various High
Courts.”

Pg. 39
“Both these judgments were relied by Counsel for wife
and are in the compilation filed in the Supreme Court.
These judgments are also referred by Ld. Sessions Judge
in its order dated 12 th December, 2018. Said order is
annexed with Appeal before Hon’ble Supreme Court at
Page No.172­ 194 and abovesaid two judgments are
referred in para 21 (Page No. 185 of S.L.P.) & Para 22
(Page No. 186 of S.L.P.)

79
But Respondent Judges deliberately ignored the said
legal position settled by Hon’ble Supreme Court and
Therefore the said order dated 26th February, 2019 is not
only per­incurriam but Contempt of Hon’ble Supreme
Court.”

Pg. 43
“But the Respondent Judges deliberately ignored to
reproduce these paras in their order with ulterior motive
to help the accused.

Moreover how the said case law is either applicable or
not applicable is not discussed in the judgment except
referring it in a cursory manner.”

Pg. 52
“But Justice Rohinton Fali Nariman acted in utter
disregard and difiance of Constitution Bench’s judgment
even if it was brought to his notice.

This is sufficient to prove the malafides of the accused
Judges i.e. Justice Rohinton Fali Nariman & Justice
Vineet Saran.”

Pg. 62
“But here the Respondent Judges breach the oath taken
as a Judge by acting contrary to law and in a biased
manner and therefore they forfeited their right to sit on
the chair of highest Court of the Country.”

Pg. 71
“38). POOR LEVEL OF UNDERSTANDING OF A
JUDGE:­

xxx xxx xxx”

Pg. 77
“45). Under these circumstance Justice Rohington
Fali Nariman having knowledge of personal enmity
between his father and Adv. Nilesh Ojha, instead of
recusing himself, heard the case represented by Adv.
Nilesh Ojha and out of his earlier prejudices passed the
illegal order by willful disregard and defiance of the
various law laid down by the Hon’ble Supreme Court.”

80

85. The allegations in the portions which have been quoted

above allege that the Bench passed orders in wilful disobedience

of law and committed contempt of court, that the judges

deliberately and conveniently ignored certain portions of the

judgment cited, that they deliberately misinterpreted the orders,

that they deliberately ignored the settled legal position, that the

judges acted with ulterior motive to help the accused, and that all

this is sufficient to prove the malafides of the two judges whom

Shri Rashid Khan Pathan describes as accused. These

allegations are not only false but have been made only with a

view to ensure that Justice Nariman should have recused himself

from hearing the case in which he was still to hear Shri

Nedumpara on the question of punishment. Further there is an

allegation that Justice Nariman had the knowledge of personal

enmity between his father and Shri Nilesh Ojha. The language

used is not only objectionable, but by questioning the

impartiality, integrity, ability of the Judges and by saying that the

judges deliberately acted in a particular manner and raising

allegations of malafide against them Shri Rashid Khan Pathan

has also committed contempt of Court.

81

86. We have already extracted large portions of the letters. Both

the letters on their face are totally contemptuous in nature. No

litigant has a right to attribute motives to a Judge. No litigant

has a right to question the integrity of a Judge. No litigant has a

right to even question the ability of a Judge. When the ability,

integrity and dignity of the Judges are questioned, this is an

attack on the institution. It is an attack on the majesty of law

and lowers the impression of the Courts in the public eye. The

allegations in the complaints are scurrilous and scandalous.

Shri Vijay Kurle and Shri Rashid Khan Pathan do not deny that

they have sent these letters. They, in fact, justify the sending of

these letters. There is not even a word of regret in any of the

affidavits filed by them.

87. We now examine the context in which these allegations have

been made. The first complaint by Shri Vijay Kurle dated

20.03.2019 is basically in relation to the order dated 12.03.2019.

Shri Nedumpara was held guilty of contempt vide order dated

12.03.2019. Notice was issued to him for being heard on the

issue of punishment. This notice was made returnable within

two weeks and the record shows that this notice was actually

82
made returnable on 27.03.2019. In the meantime, both Shri

Vijay Kurle and Shri Rashid Khan Pathan sent these complaints

praying that action be taken against the Members of the Bench.

This, in our opinion, is the grossest form of contempt because the

intention was to intimidate the Judges so that they should desist

from taking action against Shri Nedumpara. Shri Nedumpara in

his affidavit filed in this Court stated that he barely knew Shri

Vijay Kurle and Shri Nilesh Ojha. According to him, he did not

know Shri Rashid Khan Pathan at all. On the basis of the

statement we have discharged Shri Nedumpara. He, in fact,

stated that he came to know about these complaints only after

notice was issued and his colleague Mrs. Amin took out the

complaints filed by Shri Vijay Kurle and Shri Rashid Khan

Pathan from the social media.

88. In the complaint filed by Shri Vijay Kurle there are

references to many documents and allegations that certain issues

raised in the Court were ignored. The order dated 12.03.2019

convicting Shri Nedumpara which is the fulcrum of the complaint

of Shri Vijay Kurle was passed without issuing notice to Shri

Nedumpara. Shri Vijay Kurle alleges ignorance of law and failure

to comply with various Constitution Bench judgments without

83
even caring to ascertain whether these judgments were actually

cited before the Bench or not. There can be no manner of doubt

that this complaint by Shri Vijay Kurle was filed with a view to

intimidate the Judges so that no action against Shri Nedumpara

is taken.

89. Coming to the complaint of Shri Rashid Khan Pathan. The

same relates to the case in which Shri Nilesh Ojha was a counsel

for the respondent. Any party who loses a matter in a Court may

turn out to be disgruntled and may feel that justice had not been

done to it. The judgment in Aarish Asgar Qureshi (supra) was

delivered on 26.02.2019. Shri Rashid Khan Pathan in his

complaint made reference to various cases which, according to

him, were cited before the Bench. He urges that these cases were

ignored or misinterpreted by the Bench. The question is as to

how Shri Rashid Khan Pathan came to know about these facts.

The only source of information could be Shri Nilesh Ojha.

90. No doubt, any citizen can comment or criticise the judgment

of this Court. However, that citizen must have some standing or

knowledge before challenging the ability, capability, knowledge,

honesty, integrity, and impartiality of a Judge of the highest

court of the land. We are informed that Shri Vijay Kurle has

84
hardly 7 years standing at the Bar. His complaint is full of

mistakes and he has not even cared to check the spelling of the

name of the Judge who he claims has no knowledge of law. His

professional credentials are not known and we fail to understand

how can he adorn the robes of a Judge to pass judgment on the

Judges of the highest court, that too by using highly intemperate

language and language which casts a doubt not only on the

ability of the Judges but scandalises the Court and lowers the

dignity and reputation of this Court in the eyes of the general

public. These sort of scandalous allegations have to be dealt with

sternly and nipped in the bud. As far as Shri Rashid Khan

Pathan is concerned, he professes to be the National Secretary of

an NGO. Other than that, it does not even appear that he is a

lawyer. What was the public interest in raking up issues with

regard to a litigation which had no element of public interest? It

deals mainly with quashing of the proceedings initiated by the

Bombay High Court against a party under Section 340 of the

CrPC. There is no explanation as to what the case of Aarish

Asgar Qureshi (supra) has got to do with this case. It is not as if

somebody has been put behind bars or the human rights of any

person had been violated. Shri Rashid Khan Pathan is basically
85
waging a war against the Members of the Bench and against this

Court at the instance of Shri Nilesh Ojha, if not Shri Nedumpara

because in his complaint he states that Shri Nilesh Ojha was the

lawyer for the respondent before the Court and could be the only

person who could have supplied the material to Shri Rashid

Khan Pathan.

Alleged Contemnor No. 3­Shri Nilesh Ojha

91. This brings us to Shri Nilesh Ojha, alleged contemnor no. 3.

At the outset, we may point out that Mr. Nedumpara in his

discharge application has very clearly disassociated himself from

the letters and has stated that he barely knows Shri Vijay Kurle

and Shri Nilesh Ojha and has also stated that he has no concern

with the communication sent by them. This is not the stand of

alleged contemnor no. 3, Mr. Nilesh Ojha. He is the National

President of the Indian Bar Association of which Mr. Vijay Kurle

is the State President. During these entire proceedings he has

relied upon a technical objection that he has not signed the

letters, but the tenor of his written submission as well as the

various affidavits again show that he has not disassociated from

what has been said in the complaint. In fact, he has tried to

86
justify the same. The cat comes out of the bag when we go

through Para 12.41 of the discharge application filed by Shri

Nilesh Ojha. The following averments are extremely relevant:

“12.41. That, the entire letter dated 23.03.2019 sent by
Adv. Milind Sathe nowhere states that which part of
Complaint given by me, Adv. Vijay Kurle,& Rashid Khan
Pathan is wrong or incorrect…”

This clearly indicates that the letters sent by Shri Vijay Kurle and

Rashid Khan Pathan were sent with the knowledge and consent

of Shri Nilesh Ojha.

92. We may also now refer to some other facts. The complaint

of Rashid Khan Pathan is based on the case which was argued by

Shri Nilesh Ojha. He has made various allegations that some

arguments were raised by Shri Nilesh Ojha which were not

considered by the Bench or were brushed aside. He could have

come to know about this only if Shri Nilesh Ojha had told him

and therefore, it cannot be believed that Shri Nilesh Ojha was not

aware or did not support what was said in the complaint of Shri

Rashid Khan Pathan. The conduct of Shri Nilesh Ojha even while

arguing the matter was to support each and every thing said in

the complaints filed by Shri Vijay Kurle and Shri Rashid Khan

Pathan. He may not have signed the complaint but we have no
87
doubt in our mind that both these complaints were sent in

coordination with each other. In fact, Shri Vijay Kurle in his

complaint refers to the complaint made by Shri Rashid Khan

Pathan. If the complaint of Shri Rashid Khan Pathan is

addressed only to the President of India and the Chief Justice of

India, which was sent on 19.03.2019 how could Shri Vijay Kurle

on 20.03.2019 make reference to the allegations in the complaint

made by Shri Rashid Khan Pathan and support the same unless

he had read them.

93. As far as the complaint of Shri Vijay Kurle is concerned, it is

nothing but a proxy battle for Shri Nedumpara. If Shri

Nedumpara did not know Shri Vijay Kurle, how could such a

detailed complaint running into 183 pages have been filed by

Shri Vijay Kurle on 20.03.2019 when the matter of Shri

Nedumpara was still pending in this Court. This Court convicted

Shri Nedumpara for contempt of Court by judgment dated

12.03.2019 and directed Shri Nedumpara to appear so that

punishment could be imposed on him for contempt of Court. The

matter was listed on 27.03.2019. In our opinion, both these

complaints were sent to the President of India with a view to

88
browbeat this Court so that this Court is terrorised into not

taking action against Shri Nedumpara. In a matter which was

still pending in so far as imposition of punishment was

concerned, Shri Vijay Kurle and Shri Rashid Khan Pathan had no

business sending these communications. These communications

were widely circulated on social media, as is apparent from the

affidavit of Mrs. Rohini M. Amin filed in the present case where

she has stated that she obtained a copy of the complaint from the

social media. Shri Rashid Khan Pathan had addressed his

complaint only to the President of India and the Chief Justice of

India. As far as the complaint of Shri Vijay Kurle is concerned, it

is addressed to many other persons including all Judges of the

Supreme Court, all Judges of all the High Courts, all State Bar

Councils and the Bar Council of India. Obviously, the President

of India or the Chief Justice of India did not put this complaint

on social media and only Shri Rashid Khan Pathan could have

done so. It was also obvious that this was done only with the

active connivance and with the consent of Shri Nilesh Ojha since

he is the President of the Indian Bar Association. It is only when

notice of contempt was issued, that Shri Nedumpara stated that

he does not know Shri Vijay Kurle, Shri Nilesh Ojha and Shri

89
Rashid Khan Pathan and totally disassociated himself from the

complaints. As far as Shri Nilesh Ojha is concerned, he says that

he has not sent the complaint nor the same was issued with his

knowledge. However, till date Shri Nilesh Ojha has not sent any

communication to anybody or in the public domain that he has

disassociated himself with the complaint of Shri Vijay Kurle. Shri

Nilesh Ojha is the President of the Indian Bar Association. The

complaint is sent by Shri Vijay Kurle who is the State President

of the Maharashtra and Goa Unit of Indian Bar Association. This

was a complaint by Shri Vijay Kurle not in person but in his

official capacity as State President of the Maharashtra and Goa

Unit of the Indian Bar Association. Shri Nilesh Ojha is the

President of the Indian Bar Association. When a member of the

body of lawyers sends such a vitriolic communication making

scandalous allegations against Judges the head of such body

cannot shirk responsibility for the same. The head should either

immediately send a contradiction or otherwise it has to be

presumed that the complaint has been sent with his knowledge,

consent and approval.

90

94. In view of the facts discussed above, we are of the clear view

that the complaint sent by Shri Vijay Kurle was in connivance

and at the behest of Shri Nilesh Ojha. Therefore, we have no

doubt in our mind that all three i.e. Shri Vijay Kurle, Shri Rashid

Khan Pathan and Shri Nilesh Ojha were working in tandem and

making scurrilous and scandalous allegations against the

Members of the Bench, probably with the intention that the

Members of the Bench would thereafter not take action against

Shri Nedumpara.

Defence of Truth

95. Though not so much in the oral arguments but in the

written arguments the alleged contemnors have also raised the

plea of truth as a defence. Truth as a defence is available to any

person charged with contempt of Court. However, on going

through all the written arguments and the pleadings, other than

saying that the Judges had misinterpreted the judgments of this

Court or had ignored them or that Justice R.F. Nariman was

biased, there is no material placed on record to support this

defence. The allegations are also scurrilous and scandalous and

91
such allegations cannot be permitted to be made against the

Judges of highest Court of the country.

96. Keeping in view the aforesaid discussion, we hold all three

alleged contemnors i.e. Shri Vijay Kurle, Shri Rashid Khan

Pathan, and Shri Nilesh Ojha, guilty of contempt.

97. We place on record our appreciation for the valuable

assistance rendered by Shri Siddharth Luthra, amicus curiae.

We also reject all the baseless allegations levelled against him by

the contemnors.

98. The matter be now listed on 01.05.2020 for hearing the

contemnors on the issue of sentence, through video conferencing.

…………………………….J.

(Deepak Gupta)

…………………………….J.

(Aniruddha Bose)

New Delhi
April 27, 2020

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