Leila David vs State Of Maharashtra & Ors

renumbered as Writ Petition (Crl.) No.91 of 2008) 2

was filed by one Leila David in this Court on 4th

August, 2008, under Article 32 of the Constitution

of India, inter alia, for the following reliefs :

1. Writ of Mandamus directing the Maharashtra Govt. to ensure that the Petitioner is able to reside in her home without any illegal interference, threats, harassment or visits from the police.

2. Writ of Mandamus directing Director of CBI/ Ministry of Home Affairs- organize Interpol protection to Ms. Lydia Desai, Mrs. Priscilla D'souza and Ms. Rebecca Desai in Australia.

3. Writ of Mandamus directing army protection to BOSS School members and their families in India, since all levels of police, politicians and judges are involved in this Genocide and the situation is set to escalate.

4. Writ of Mandamus directing criminal proceedings and strongest punishment to following judges of Bombay High Court, for being party to the Genocide:

a. R.M.S. Khandeparkar b. P.V. Kakade 3

c. Ranjana Desai d. D.B. Bhosale e. B.H. Marlapalle f. Roshan Dalvi g. D.G. Deshpande h. V.K. Tahilramani i. Swatanter Kumar j. J.P. Devadhar k. JN Patel l. Nishita Mhatre 5. Writ of Mandamus directing immediate

arrest and strongest punishment to the anti-

BOSS petitioners who have filed bogus cases, initiate a nationwide witch-hunt and destroyed a pioneering organization and the lives of brilliant young educationist, only to gain control over their adult son and daughter.

2. In the meantime, another Writ Petition, being

Writ Petition (Crl.) D. No.24281 of 2008 (since

renumbered as Writ Petition (Crl.) No.92 of 2008)

was filed by one Ms. Annette Kotian and the same

was taken up for consideration along with the Writ

Petition filed by Leila David on 29th August, 2008.

At the outset, this Court observed that some of the 4

allegations made in the two writ petitions, as well

as in the supporting affidavits, appeared prima

facie to be per se contempt of this Court.

Although, the petitioners were asked to withdraw

the allegations made, they refused to do so and

submitted that they stood by the said averments and

strongly urged the Court to issue process to arrest

the 12 Judges of the High Court of Bombay mentioned

in prayer (4) to the Writ Petition. In view of

the obstinate stand taken by the petitioners, who

were appearing in person, the Court had no

alternative but to issue notice as to why contempt

proceedings should not be issued against them. The

matters were thereafter directed to be placed

before the appropriate Bench presided over by the

Hon'ble Dr. Justice Arijit Pasayat (as His Lordship

then was).

3. The said two writ petitions along with a third

Writ Petition, being WP (Crl) D. No.25985 of 2008, 5

filed by one Pavithra Murali and four Special Leave

Petitions were listed before the Bench presided

over by Dr. Justice Pasayat on 10th September, 2008.

While the writ petitioners appeared in person, the

respondents were duly represented by counsel and

after hearing the petitioners, the Court was of the

view that the show cause reply was equally

contumacious and some action was required to be

taken against the petitioners for contempt of this

Court. Accordingly, the Court initiated proceedings

for contempt and observed that charges would be

framed. Since the writ petitioners were appearing

in person, the Court appointed Mr. G.E. Vahanvati

(who was then the learned Solicitor General) to act

as amicus curiae, in the matter. The matters were

directed to be listed on 18th November, 2008, with

liberty to the petitioners to file any further

response if they wished to by 10th November, 2008.

The Special Leave Petitions, which had appeared

along with the writ petitions, were de-linked. The 6

writ petitions and the suo motu contempt

proceedings were taken up for consideration on 20th

March, 2009. As it appears from the record, when

the hearing commenced, the writ petitioners

disrupted the proceedings by using very offensive,

intemperate and abusive language at a high pitch.

The order recorded by Dr. Justice Pasayat indicates

that one of the petitioners had gone to the extent

of saying that the Judges should be jailed for

having initiated proceedings against them and that

the Judges should be punished for not taking care

of their fundamental rights. One of the writ

petitioners, namely, Dr. Sarita Parikh, went to the

extent of throwing a footwear at the Judges. His

Lordship also recorded that all this happened in

the presence of the learned Solicitor General of

India (now Attorney General for India), two learned

Additional Solicitor Generals and a large number of

learned counsel and advocates, including the

President of the Supreme Court Advocates-on-Record 7

Association. Having recorded the said incidents

which had occurred within the sight of the Hon'ble

Judges and the other persons present in Court, Dr.

Justice Pasayat held such behaviour to be

contemptuous in the face of the Court. Since the

petitioners stood by what they had said and done in

Court, His Lordship felt that there was no need to

issue any notice and holding them to be guilty of

criminal contempt of this Court, inflicted a

punishment of three months' simple imprisonment on

them.

4. The said course of action did not meet the

approval of the other learned Judge, the Hon'ble

Mr. Justice Asok Kumar Ganguly, who by a separate

order of even date, observed that the writ

petitioners could not have been punished for

contempt without due compliance with the provisions

of Section 14(1)(a)(b)(c) and (d) of the Contempt

of Courts Act, 1971. His Lordship was also of the 8

view that the Court's power under Article 142 was

not meant to circumvent the statutory requirements.

His Lordship, accordingly, observed as follows :

"Therefore, in this view of the matter, I cannot agree with the view expressed in the order of His Lordship Justice Pasayat, for sending the alleged contemnors to prison for allegedly committing the contempt in the face of the Court without following the mandate of the Statute under Section 14. I, therefore, cannot at all agree with His Lordship's order by which sentence has been imposed. I am of the view that the liberty of those persons cannot be affected in this manner without proceeding against them under Section 14 of the Act. In my opinion Section 14 is in consonance with a person's fundamental right under Article

21."

5. Having regard to the difference of opinion as

to the procedure to be adopted before the

petitioners could be found guilty of contempt of

Court and sentenced, the matter was directed to be

placed before Hon'ble The Chief Justice of India

and a direction was given that the contemnors would 9

remain in custody till the matter could be heard by

an appropriate Bench.

6. On the same day the Hon'ble Chief Justice

constituted a Bench comprising the Hon'ble Mr.

Justice B.N. Agrawal (as His Lordship then was),

the Hon'ble Mr. Justice G.S. Singhvi and the

Hon'ble Mr. Justice H.L. Dattu and directed the

matter to be placed before the said Bench on

23.3.2009 at 2.00 p.m. A direction was also given

for production of the contemnors before the said

Bench on the said date. Pursuant to the said order,

the matters were duly listed before the said Bench

and were adjourned till 13th April, 2009. In the

meantime, the alleged contemnors were enlarged on

bail and the application for intervention filed by

the Supreme Court Bar Association was allowed. On

15th April, 2009, the matters were released by the

aforesaid Bench and were subsequently placed before

this Bench.

10

7. The matters were thereafter taken up by this

Bench on 5th May, 2009, when the Writ Petitions

filed by the alleged contemnors were taken up for

consideration for the purpose of issuance of notice

and were, thereafter, directed to be listed on 16th

July, 2009, at 10.30 a.m. for passing orders. The

contempt proceedings were also directed to be

listed for consideration on that date.

8. On 16th July, 2009, when the two differing

orders dated 20.3.2009, in the Contempt Proceedings

were taken up for consideration, the alleged

contemnors refused to make any submissions and

insisted that the hearing of the Writ Petitions,

which had already been concluded, be reopened.

Having no other alternative this Court requested

the learned Attorney General, the learned Solicitor

General as well as the President of the Supreme

Court Bar Association to make their submissions in 11

regard to the two orders on account of which the

matter was referred to this Bench.

9. The learned Attorney General supported the view

taken by Dr. Justice Arijit Pasayat and submitted

that Section 14 of the Contempt of Courts Act,

1971, did not preclude the Court from deciding the

contempt matter summarily when such contempt was

committed in the face of the Court. The learned

Attorney General submitted that while Section 14

provides a procedure to be normally followed so as

to give the contemnors an opportunity of showing

cause against the action proposed to be taken, in

cases of the instant nature where the incident had

taken place within the precincts of the Court room

and within the sight of all present therein,

including the Hon'ble Judges who constituted the

Bench, there could be little justification in going

through the procedure prescribed in Section 14 in

order to establish that the alleged contemnors had, 12

in fact, committed contempt of Court. The learned

Attorney General submitted that the footwear was

thrown at the Hon'ble Judges within the vision of

everyone present in the Court and the very attitude

of the alleged contemnors was not only demeaning

but contumacious as well and calculated to

scandalize and lower the image of the Court and the

Judiciary as a whole. Apart from the above the

learned Attorney General also submitted that the

language used in the writ petitions and the reliefs

prayed for was also aimed at scandalizing the Court

and debasing the judicial process in the eyes of

the public. It was urged that the alleged

contemnors have scant regard for the Courts and the

judicial process and were required to be dealt with

firmly in order to uphold the dignity and majesty

of the Courts.

10. In support of his submissions the learned

Attorney General referred to several decisions, 13

and, in particular, that of a three Judge Bench of

this Court in the case of Vinay Chandra Mishra

[(1995) 2 SCC 584], which was a criminal contempt

proceeding initiated by this Court on a letter

received from the Acting Chief Justice of the

Allahabad High Court alleging highly contumacious

conduct on the part of Shri Vinay Chandra Mishra, a

Senior Advocate and President of the Bar and

Chairman of the Bar Council of India, which not

only tended to scandalize and over-awe the court,

but to lower its dignity in the eyes of the public.

This Court, accordingly, in exercise of its powers

under Article 129 and Article 142 of the

Constitution, sentenced the contemnor, Vinay

Chandra Mishra, to undergo simple imprisonment for

6 weeks and also suspended him from practising as

an advocate for a period of 3 years from the date

of the order. The sentence of imprisonment was,

however, kept suspended for a period of 4 years

with the provision for activating the same in case 14

the contemnor was convicted for any other offence

of contempt of court within the said period.

12. The learned Solicitor General and the President

of the Bar Association, while adopting the

submissions made by the learned Attorney General,

submitted that the contempt having been committed

in the face of the court, following the procedure

in Section 14 would be redundant, since the

incident had taken place in full public view and

within the view of the Judges and no other

explanation could be given with regard to the said

incident. Furthermore, the contemnors did not show

any sign of remorse or repentance for their

conduct, but continued to behave intemperately,

throwing all decorum to the winds.

13. The learned Solicitor General also contended

that despite having been given several

opportunities to purge their contumacious

behaviour, not only had the alleged contemnors 15

remained defiant, but they had compounded the

offence by filing a fresh writ petition, wherein,

not only were the earlier statements reiterated,

but the Office of the President of India, the Prime

Minister, Attorney General and other high

dignitaries were also scandalized and denigrated.

The learned Solicitor General submitted that this

was not a case where the contemnors had committed

an error unintentionally, but the actions of the

contemnors were deliberate and wilful and were

carried out purposefully. Accordingly, the

contemnors did not deserve any leniency and were

required to be dealt with in a firm manner. At

this stage, we had invited the contemnors to make

their submissions with regard to the contempt

proceedings taken against them and the submissions

made by the learned Attorney General as well as the

Solicitor General and the President of the Supreme

Court Bar Association. As the contemnors submitted

that they required some time to consider the 16

judgments cited by the Attorney General, the matter

was adjourned.

14. On 20th August, 2009, when the matter was taken

up once again, an unnumbered application filed in

W.P. (Crl.) Diary No.2428/2008 was found on record

asking the Bench to recuse itself from the present

case. For the reasons given in our order of 20th

August, 2009, such prayer was rejected and despite

being given an opportunity to express regret for

their scandalous behaviour, not only Ms. Annette

Kotian, one of the writ petitioners, but the other

contemnors continued to use indecorous, indecent,

slanderous and offensive language, claiming that it

was their fundamental right to protect themselves

under Article 21 of the Constitution. Reference

was also made to Article 19 and Ms. Kotian

submitted that she was addressing the Court in

keeping with the fundamental right to free speech

guaranteed under Article 19 of the Constitution. 17

Ultimately, Ms. Kotian speaking for herself and the

other contemnors, contended that since all the

orders which had been passed by this Court violate

the fundamental rights of the contemnors, there was

no need for further submissions to be made in the

contempt matter.

15. Dr. Sarita Parikh submitted that she had thrown

the footwear in order to make the learned Judges

sitting on the Bench aware of her constitutional

and fundamental rights which she claimed had been

violated. This Bench, therefore, had no option but

to reject the application filed by Ms. Kotian

asking this Bench to recuse itself from the case.

On the other hand, the fresh writ petition which

was filed by the contemnors was taken up for

consideration and for the reasons recorded in our

order of 20th August, 2009, the same was also

dismissed.

18

16. As far as the first batch of writ petitions

filed by the contemnors are concerned, the very

nature of the pleadings and the prayers made

therein, require the same to be dismissed in

limine. Despite the above, we had given an

opportunity to the writ petitioners/contemnors to

redeem themselves, which opportunity they

deliberately spurned and proceeded to file a fresh

writ petition, which, as indicated hereinabove was

replete with the earlier scandalous remarks and

fresh expletives. We, therefore have no hesitation

in dismissing the writ petitions filed by Leila

David, Ms. Annette Kotian and Ms. Pavithra Murali,

with cost of Rs.1 lakh in respect of each writ

petition to be paid by the writ petitioners into

the Registry of this Court within 12 weeks from

date, failing which further action will be taken

against them. As and when such deposits are made,

the Registry shall keep the same in short-term

Fixed Deposits pending further orders. 19

17. As far as the suo motu proceedings for contempt

are concerned, we are of the view that Dr. Justice

Arijit Pasayat was well within his jurisdiction in

passing a summary order, having regard to the

provisions of Articles 129 and 142 of the

Constitution of India. Although, Section 14 of the

Contempt of Courts Act, 1971, lays down the

procedure to be followed in cases of criminal

contempt in the face of the court, it does not

preclude the court from taking recourse to summary

proceedings when a deliberate and wilful

contumacious incident takes place in front of their

eyes and the public at large, including Senior Law

Officers, such as the Attorney General for India

who was then the Solicitor General of India.

While, as pointed out by Mr. Justice Ganguly, it is

a statutory requirement and a salutary principle

that a person should not be condemned unheard,

particularly in a case relating to contempt of 20

Court involving a summary procedure, and should be

given an opportunity of showing cause against the

action proposed to be taken against him/her, there

are exceptional circumstances in which such a

procedure may be discarded as being redundant. The

incident which took place in the court room

presided over by Dr. Justice Pasayat was within the

confines of the court room and was witnessed by a

large number of people and the throwing of the

footwear was also admitted by Dr. Sarita Parikh,

who without expressing any regret for her conduct

stood by what she had done and was supported by the

other contemnors. In the light of such admission,

the summary procedure followed by Dr. Justice

Pasayat cannot be faulted.

18. Section 14 of the Contempt of Courts Act, 1971,

deals with contempt in the face of the Supreme

Court or the High Court. The expression "Contempt

in the face of the Supreme Court" has been 21

interpreted to mean an incident taking place within

the sight of the learned Judges and others present

at the time of the incident, who had witnessed such

incident. In re: Nand Lal Balwani [(1999) 2 SCC

743], it was held that where an Advocate shouted

slogans and hurled a shoe towards the Court causing

interference with judicial proceedings and did not

even tender an apology, he would be liable for

contempt in the face of the Court. It was observed

by the Bench of three Judges which heard the matter

that law does not give a lawyer, unsatisfied with

the result of any litigation, licence to permit

himself the liberty of causing disrespect to the

Court or attempting, in any manner, to lower the

dignity of the Court. It was also observed that

Courts could not be intimidated into passing

favourable orders. Consequently, on account of his

contumacious conduct, this Court sentenced the

contemnor to suffer four months simple imprisonment

and to pay a fine of Rs.2,000/-. In another 22

decision of this Court in Charan Lal Sahu v. Union

of India and another [(1988) 3 SCC 255], a petition

filed by an experienced advocate of this Court by

way of a public interest litigation was couched in

unsavoury language and an intentional attempt was

made to indulge in mudslinging against the

advocates, the Supreme Court and other

constitutional institutions. Many of the

allegations made by him were likely to lower the

prestige of the Supreme Court. It was also alleged

that the Supreme Court had become a constitutional

liability without having control over the illegal

acts of the Government. This Court held that the

pleadings in the writ petition gave the impression

that they were clearly intended to denigrate the

Supreme Court in the esteem of the people of India.

In the facts of the case, the petitioner therein

was prima facie held to be guilty of contempt of

Court.

23

19. Section 14 of the Contempt of Courts Act no

doubt contemplates issuance of notice and an

opportunity to the contemnors to answer the charges

in the notice to satisfy the principles of natural

justice. However, where an incident of the instant

nature takes place within the presence and sight of

the learned Judges, the same amounts to contempt in

the face of the Court and is required to be dealt

with at the time of the incident itself. This is

necessary for the dignity and majesty of the Courts

to be maintained. When an object, such as a

footwear, is thrown at the Presiding Officer in a

Court proceeding, the object is not to merely

scandalize or humiliate the Judge, but to

scandalize the institution itself and thereby lower

its dignity in the eyes of the public. In the

instant case, after being given an opportunity to

explain their conduct, not only have the contemnors

shown no remorse for their unseemly behaviour, but

they have gone even further by filing a fresh writ 24

petition in which apart from repeating the

scandalous remarks made earlier, certain new

dimensions in the use of unseemly and intemperate

language have been resorted to to further denigrate

and scandalize and over-awe the Court. This is one

of such cases where no leniency can be shown as the

contemnors have taken the liberal attitude shown to

them by the Court as licence for indulging in

indecorous behaviour and making scandalous

allegations not only against the judiciary, but

those holding the highest positions in the country.

The writ proceedings have been taken in gross abuse

of the process of Court, with the deliberate and

wilful intention of lowering the image and dignity

not only of the Court and the judiciary, but to

vilify the highest constitutional functionaries.

20. In such circumstances, while agreeing with the

procedure adopted by Dr. Justice Pasayat in the

facts of this case, we are not inclined to 25

interfere with the sentence which has been imposed

on the contemnors. The order dated 20th March, 2009,

granting bail to the contemnors is hereby recalled.

The Secretary General is directed to take the

contemnors into custody forthwith and to arrange to

have them sent to the appropriate jail to serve out

the sentence.

21. Let arrest warrants be issued against Leila

David and Pavithra Murali, who are not present in

Court today, despite our directions. The

Commissioner of Police, Mumbai, is directed to take

steps to execute the arrest warrants and to take

them into custody and to arrange for their

detention in prison in terms of the order passed on

20th March, 2009, and the order being passed today. 26

22. Let copies of this order be made available to

the Registry for communication to the Commissioner

of Police, Mumbai, forthwith.

................................................J. (ALTAMAS KABIR)

................................................J. (G.S. SINGHVI)

...................................................J. (H.L. DATTU) New Delhi Dated: October 21, 2009.