- 1 - IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE12H DAY OF JANUARY, 2021 PRESENT THE HON’BLE MR.ABHAY S. OKA, CHIEF JUSTICE AND THE HON’BLE MR.JUSTICE SACHIN SHANKAR MAGADUM WRIT PETITION No.44 OF2021(GM-RES) BETWEEN: SRI V.GURURAJ AGED ABOUT72YEARS S/O V.RAMA RAO R/O No.158, 11TH MAIN4H CROSS, HANUMANTHA NAGAR BANGALORE SOUTH GAVIPURAM EXTENSION BANGALORE-560019 ... PETITIONER (BY SHRI KUMARA K.G, ADVOCATE) AND: SRI SRI VIDYA SREESHA THEERTHARU @ SRI D.PRAHALADACHAR (CLAIMING TO BE41T PEETHADHIPATHY) S/O LATE VENKATARAMANACHAR AGED ABOUT78YEARS SRI VYASARAJA MUTT (SOSALE) No.1, BENNE GOVINDAPPA ROAD GANDHI BAZAAR BANGALORE-560004 ... RESPONDENT THIS WRIT PETITION IS FILED UNDER ARTICLES226AND227OF THE CONSTITUTION OF INDIA, PRAYING TO EXERCISE POWERS VESTED UNDER RULE6OF CHAPTER II OF THE HIGH COURT RULES, 1959 TO ALLOT W.P.NO.15239/2020 EITHER TO THIS HON’BLE COURT (I.E., THE BENCH CONSTITUTED BY THE CHIEF JUSTICE) OR ANY OTHER COURT WHICH IS CONSTITUTED BY THE JUDGE - 2 - HAILING FROM A DIFFERENT STATE OTHER THAN KARNATAKA AND ETC. THIS PETITION COMING ON FOR ORDER
S THIS DAY, CHIEF JUSTICE MADE THE FOLLOWING: ORDER
The learned counsel appearing for the petitioner has tendered across the Bar a memo for withdrawal of this petition. Though we are permitting withdrawal, it cannot be unconditional looking to the nature of allegations made in this petition.
2. The present petitioner is the second respondent in Writ Petition No.15239/2020 who is represented by the same learned counsel in the said petition. When the said Writ Petition No.15239/2020 came up before the learned Single Judge on 23rd December 2020, a very peculiar request was made by the learned counsel who appears for the petitioner in this petition. The request was not only peculiar, but shocking. The request was that the present petitioner wants to request the Hon’ble Chief Justice to have this matter heard by a non- Karnataka Judge of this Court and that a decision be taken in this regard. Following is the order dated 23rd December 2020: “Learned counsel appearing for respondent No.2 Shri Kumara K.G. submits that a request is made to the Hon’ble Chief Justice to have this - 3 - matter heard by non-Karnataka judge of this Court and that a decision is being taken in this regard. In view of the above, matter is adjourned by four weeks; in the meanwhile, the proceedings in the Court below shall not be precipitated. It is open to the petitioner to serve copy of the petition on the first respondent in the Court below; learned trial judge to facilitate such service.” (underline supplied) 3. Prior to that, the present petition appears to have been filed on 22nd December 2020 seeking a very peculiar writ of mandamus. Prayer (1) of this petition reads thus: “1. Exercise powers vested under Rule 6 of Chapter II of the High Court Rules, 1959 to allot W.P.No.15239/2020 either to this Hon’ble Court (i.e., the Bench constituted by the Chief Justice) or any other Court which is constituted by the judge hailing from a different state other than Karnataka.” (underline supplied) 4. Thus, a writ of mandamus is sought to the effect that the writ petition should be tried by a Bench consisting of the Hon’ble Chief Justice or any other Bench which is constituted by a Judge hailing from a different State other than Karnataka.
5. The averments made in the petition constitute a classical example of scandalizing the Court which is per se a criminal contempt of this Court as defined in the Contempt of - 4 - Courts Act, 1971 (for short ‘the said Act of 1971’). The first allegation which is very specific at page 4 of the petition is that the Roster Judge will not give justice to the petitioner who is the second respondent in W.P.No.15239/2020 on the footing that there is an excessive interference by the former Chief Justice of India who is specifically named therein. We are deliberately not referring to the name of the former Chief Justice. The matter does not rest here. Paragraph after paragraph, there are allegations made against the former Chief Justice of India by naming him repeatedly. Paragraph 8 of the writ petition reads thus: “8. Being aggrieved by the posting of the case before Court Hall No.15 or any other court in which a judge from Karnataka Bar would be on the bench, who would for obvious reasons have close proximity, allegiance and reverence towards the Former Chief Justice of India Sri xxxxxx, as per the strong grounded apprehension of this Petitioner, the said postings would not result in yielding just results in disposal of the cases on hand. Having no other alternative, the Petitioner has approached this Hon’ble Court on the following amongst other grounds.” (underline supplied) 6. While reproducing paragraph 8, we have deliberately masking the name of the former Hon’ble Chief Justice of India. Paragraphs 10, 11 and 13 read thus: “10. It is submitted that, it is a strong apprehension of the Petitioner that, the - 5 - Respondents to wield clout upon the Hon’ble Court has purposefully articulated that: “It is submitted that Government of Karnataka on an enquiry held into malfeasances and maladministration including misuse of properties and public funds held thought it fit to appoint an retired IAS officer as Administrator for managing secular matter of Sri Vyasaraj Mutt (Sosale). Accordingly, an order was passed on 25-5-2012 and also constituted Advisory Board headed by the then Former Chief Justice of India. The copy of the notifications are produced at Annexure-A and B respectively.
11. From a bare reading of the above articulation it is clear that the said para does not have any nexus to either the further contents of the Writ Petition or the document forms a vital part of the annexure before the Hon’ble court. Whereas it is a strong apprehension that, inorder to wield a strong clout, and utilize the veneration which most of the Judges hailing from Bar at Karnataka owe towards the undisputed intellect of the Former Chief Justice Sri xxxxx has included such articulations in the said subject matter.” “13. The apprehension of this Petitioner is strongly grounded as most of the Judges who hail from Karnataka Bar in one way or the other owe their allegiance and show their veneration to Former Chief Justice of India Sri xxxxx. Therefore, the present petition has become inevitable to protect the Natural Justice of the Petitioner in the above case. Further, it is a settled position of law that, even a semblance of bias is against Natural Justice.” Again, while quoting paragraph 13, we have masked the name of the former Chief Justice of India.
7. Even in the grounds for interim relief, the same allegations have been reiterated. In short, what the petitioner - 6 - alleges which is supported by his affidavit is that all the Judges of this Court who were practising in the Courts in Karnataka may be influenced by the former Chief Justice of India and therefore, the Hon’ble Chief Justice should either take up the matter himself or should assign the matter (W.P.No.15239/2020) to a Judge who has not practised in the Courts in Karnataka. On the face of it, such allegations scandalize the High Court of Karnataka and tends to lower the authority of this Court. Moreover, such allegations constitute interference with the due course of judicial proceedings. Such allegations tend to interfere with the administration of justice.
8. Yesterday, when this petition was listed before the Court, instead of straightaway initiating suo motu proceedings for criminal contempt under the said Act of 1971, this Court invited the attention of the learned counsel appearing for the petitioner to these scandalous allegations made in the petition. The learned counsel appearing for the petitioner thereupon sought time. By recording that time was granted only by way of indulgence, we granted time till today.
9. An expected, delaying tactic was attempted by the petitioner to ensure that this petition is not heard today. After - 7 - the case is called out today, the learned counsel appearing for the petitioner submitted a memo for retirement in which, it is stated that he has informed the petitioner that he would not be continuing in the writ petition and he has told the petitioner to take the file and no objection. When this memo was presented today at 10.30 a.m., we invited the attention of the learned counsel appearing for the petitioner to the provisions of sub- rule (2) of Rule 4 of Order III of the Code of Civil Procedure, 1908. We pointed out to the learned counsel appearing for the petitioner that it is the discretion of the Court whether to permit an advocate to retire or not. We, therefore, made it very clear to him that we will not allow the said counsel to retire by exercising the discretion which is vested in this Court. The writ petition was, therefore, passed over till 11.15 a.m. when the learned counsel appearing for the petitioner tendered a memo of withdrawal which contains the following statements: “That, the undersigned counsel for the petitioner respectfully submits before this Hon’ble Court may be pleased to permit me to withdraw the writ petition as not pressed, in the interest of justice and equity.
10. As observed earlier, ex facie, the statements made by the petitioner in this writ petition constitute criminal contempt under all the three sub-clauses of clause (c) of Section 2 of the said Act of 1971. The question is whether we should initiate - 8 - suo motu contempt proceedings for committing a criminal contempt against the petitioner. When we applied our mind to the question of initiating suo motu contempt proceedings, more than one factors persuaded us not to initiate the same. The first and foremost reason is that we are guided by what is observed by the Apex Court in the leading decision in the case of IN RE S. MULGAOKAR1 in which, reliance was placed on a foreign decision in the case of REGINA vs. METROPOLITAN POLICE COMMISSIONER EX.P BLACKBURN2 . When this Court initiated suo motu criminal contempt proceedings against leading Media houses in the State in the form of Criminal CCC Nos.1 of 2020 and 15 of 2019, while dropping the proceedings by the judgment and order dated 28th January 2020, a Division Bench of this Court to which one of us (Chief Justice) is a party, relied upon the aforesaid decisions. Paragraphs 34 and 35 of the decision in Criminal CCC No.1 of 2020 read thus: “34. Though, strictly, it cannot be said that the contempt has been purged, we must be guided by the principles laid down by the Apex Court in its leading decision in the case of IN RE S. MULGAOKAR. We are guided by an erudite opinion by Krishna Iyer J.
which summarizes the entire law of contempt and which attempts to lay down comprehensive principles. We are tempted to quote what 1 (1978) 3 SCC3392 (1968) 2 WLR1204- 9 - Krishna Iyer J.
has said in paragraph 27. The said paragraph reads thus: “The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process. The Court is willing to ignore, by a majestic liberalism, trifling and venial offences the dogs may bark, the caravan will pass. The Court will not be prompted to act as a result of an easy irritability. Much rather, it shall take a noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt.
35. Though the first part of what is said in paragraph 27 which forms part of the first rule may not apply, this is a case where this Court has acted with seriousness as justice is jeopardized by gross and/or unfounded attack on the Judiciary. However, as observed by Krishna Iyer J., considering the limited remorse shown by the accused and other assurances given by them, we are tempted to show what his Lordship describes as “majestic liberalism”. In the same erudite exposition, in paragraph 40, the Apex Court has referred to a well known decision in the case of REGINA vs. METROPOLITAN POLICE COMMISISONER EX.P BLACKBURN by saying that this judgment is based on a very valuable and remarkably fresh approach to the question of criticism of the Courts in intemperate language. Krishna Iyer J.
has quoted the opinion of Lord Denning which reads thus: “This is the first case, so far as I know, where this Court has been called on to consider an allegation of contempt against - 10 - itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise : more particularly as we ourselves have an interest in the matter. Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For these is something far more important at stake. It is no less than freedom of speech itself. It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal unfaithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political. We must rely on our conduct itself to be its own vindication. Exposed as we are to the winds of criticism, nothing which is said by this person or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion required, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done.
11. It is unfortunate that the petitioner has gone to the extent of alleging that all the Hon'ble Judges of this Court who were practising lawyers in the State of Karnataka will be - 11 - influenced by a former Chief Justice of India who was a Judge of this Court. The allegation is that most of the judges show veneration to the undisputed intellect of the former Chief Justice of India. We must remind the petitioner that the Hon'ble Judges holding the constitutional posts are human beings and they are bound to have respect for those who are possessing high intellect and knowledge. However, the Judges have taken oath under the Constitution. Merely because the Judges respect somebody, it does not mean that they will be guided by the said person when they discharge their judicial duties. While making such allegations, the petitioner has tried to cast aspersions on the retired Chief Justice of India. At one place in this petition, the petitioner himself talks about the undisputed intellect of the said retired Chief Justice of India. There is absolutely no basis to allege that the said retired Chief Justice will influence the Judges of this Court while they discharge their duties. It is impossible to believe the said allegations.
12. This action of the petitioner which is nothing but a serious attempt to scandalize this Court has to be condemned in the strongest possible words. As stated earlier, one of the reasons why we are not initiating suo motu contempt action is that we will be guided by the principles laid down by the Apex - 12 - Court. What the Apex Court held is that we as Judges of the Constitutional Court should show majestic liberalism. The Apex Court has quoted the law laid down in the case of REGINA (supra) wherein Lord Denning has observed that we as Judges will never use contempt jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. We may, however, remind all concerned that in the same decision, Lord Denning observed that silence is not an option when the things are ill done. Therefore, when we say that we are not inclined to initiate action for suo motu criminal contempt, our silence should not be construed as our weakness. We believe that if at all magnanimity has to be shown, it has to be by the persons who are holding constitutional posts.
13. Apart from the fact that the petitioner has ultimately filed a memo for withdrawing the petition, the main reason which persuades us not to take action is the law laid down by the Apex Court which this Court followed in Criminal C.C.C.No.1/2020. While we say so, we again reiterate that we will not adopt the option of silence when such a shocking attempt is brought to our notice to scandalize the entire High Court of Karnataka.-. 13 - 14. Before we part with this order, we must say something about the role of the members of the Bar. It is well settled that a member of the Bar is expected to act first as an Officer of the Court and thereafter, as the mouthpiece of his client. In this behalf, we cannot avoid temptation of what is observed in paragraph 7 of the decision of the Apex Court in the case of T.ARIVANDANDAM vs. T.V.SATYAPAL AND ANOTHER3 . Paragraph 7 of the said case reads thus: “7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co- operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy.” (underline supplied) 3 (1977) 4 SCC467- 14 - 15. The Apex Court expressed displeasure about the manner in which the party concerned was able to prevail upon a lawyer to represent before the Court a case like this. In this case, we have before us a young member of the Bar who should follow what is laid down by the Apex Court. In paragraph 7 of the aforesaid decision, when the Apex Court said that it may be a valuable contribution to the cause of justice if the Advocates screen wholly fraudulent and frivolous litigations refusing to be beguiled by dubious clients. We hope and trust that the learned counsel appearing for the petitioner has learnt a lesson and he will hereafter follow what the Apex Court expects the members of the Bar to follow.
16. The petitioner should not be under the impression that as far as this Court is concerned, the matter is finally over. We have quoted the submission made by the petitioner who is the second respondent in Writ Petition No.15239/2020 which is recorded by the learned Single Judge in his order dated 23rd December 2020. We expect the petitioner to immediately go before the learned Single Judge and withdraw the said submission. If the said submission is not withdrawn, the option - 15 - of initiating suo motu contempt proceedings against the petitioner always remains open.
17. Now, we come to the question of saddling the petitioner with costs. Yesterday, we have spent quite sometime to explain to the learned counsel appearing for the petitioner the seriousness of the allegations made in the petition. Today, we expected the petitioner to show remorse. Instead of showing remorse, the delaying tactic which we expected was attempted to be adopted by his counsel by applying for discharge or retirement. Only when we pointed out to the learned counsel appearing for the petitioner that we will not tolerate such tactics and we will not allow him to retire, that the counsel filed a memo to withdraw the petition.
18. Therefore, this is a fit case where the petitioner should be saddled with exemplary costs quantified at Rs.1,00,000/-. The costs the will be payable to the Karnataka State Legal Services Authority (KSLSA). Under the directions of this Court, the KSLSA has been directed to co-ordinate the activities of assisting and helping the children who are forced to sell toys and other articles at the traffic signals in the City of Bengaluru. After the cost amount is paid, the KSLSA will utilize - 16 - the same for the benefit of such children. This will ensure that though the petitioner is out of pocket by Rs.1,00,000/-, that amount will be used for a noble and constructive purpose.
19. The petitioner has laid an emphasis on his case being heard by a non-Karnataka Judge. Such concept does not exist. Every Judge of this Court including the Chief Justice is a Karnataka Judge.
20. We, therefore, pass the following order: (i) In view of the memo tendered today which we have quoted in the order, the petition is disposed of as unconditionally withdrawn; (ii) We direct the petitioner to pay costs quantified at Rs.1,00,000/- to the KSLSA. The amount shall be paid within a period of one month from today; (iii) As observed earlier, the cost amount shall be utilized for the purpose which we have specified above; (iv) Though the petition is disposed of, the same shall be listed before this Court on 19th February 2021 for reporting compliance by the petitioner; (v) We direct the Registrar (Judicial) to submit a report to this Court on 19th February 2021 stating whether the petitioner - 17 - has taken steps to withdraw the statement made by him before the learned Single Judge which is recorded in the order dated 23rd December 2020 which we have quoted above; (vi) We make it clear that though we are not forcing the petitioner to withdraw the said statement, while recording the reasons, we have already made the petitioner aware of the consequences of not withdrawing the said statement; (vii) File of Writ Petition No15239 of 2020 be returned. Sd/- CHIEF JUSTICE Sd/- JUDGE SN/CA