BETWEEN: 1. IN THE HIGH COURT OF KARNATAKA AT BAN DATED THIS THE 15TH DAY OF sEP'rEMBER_,H:;?'o(§9"rI'*5 V' "~ V. PRESENT THE HON'BLE MR.._JUsTIcE-K;'L;1~e.4tA1€1,JuNAm AND _ TI-IE HON'BLE MRS.JUST_ICE»B.VINAGARA'I'HVNA' MISC.CVL.NO. 140.57/2009 --RFA,No.§42~1--./2609 INTERNA'I'iON1"'L.-SOC.IE'.€Y"FOR_V ~ KRISHNA_.CONS£CI'OUS1\I_ESS, -a society registered ungder the Sd'é1f'jeties...Act;; 1860. as also Bombay '}'"'(1§:)1ig: Trusts Ac.1;_,V @950. havirig itVS'0fl¢iC€ Ha_re._Krishnéi Land. Juhu, Mumbai¢-49Va'IS1d'=also haV1i1g'its branch office at Hare Krishna'Hi11,SCh0rd..=Road, Rajajinagar, Bar1galo'1--'€*10. O . B'h;iniar.Dasa."'M_ajDr V" .« Krishna Goswami, Major V 2 3.v4a'bDvé:t'a.::'e having their office at " Hare Krisiijmfal Land, Juhu, Mu:mbai--49 (1"3y'si~:. UDAYA HOLLA, SRCOUNSEL _ " M.V.JEEVAN KUMAR.) 1. Jerya Swamy, Major _ ISKCON, Mayapur, Dt.Nadia, W.BengaE APPELLANTS FOR M/ S LEX NEXUS SHASHIKIRAN SHETFY, D.R. RAVISHANKAR & A AND: W?) INTERNATIONAL SOCIETY FOR é KRISHNA CONSCIOUSNESS, a society registered under the Karnataka Societies registration Act, 1960 and oiaiming to have its registered office at Hare Krishna Hiii, Chord Road, Rajajinagar, Bangaiore-10, represented by its alleged Secretary Stoka Krishna Das. . Vinay Karlo aka Vibhav Krishna 1:)aé'a~«. '_ Major Father's name not known ' Ashok Kumar Gupta Major Father's name not known B.Kiran Major Father's name ;iot__ ' V. Sudhir Major . Father'_s__na"me" 'i'I-Es? V' '' Respondents 2' 35-5 R/oi' '
I o1’oss}Sripuram;’ ”
Sheshdripnrarn, “Ba11ga1oi;e-20
Sasvaishvaryailasa
ESi{_CON, Hare Krishna Land,
1 0_(_}*Feet new scheme’ Road.
V’ ‘Coimbai;oorn,’Tfamiinadu.
6.
.Sa’i1ra”i1ishw’aQry’a Dasa,
ISKCOISL ‘ ‘ ~
Combatore “C entre,
Harekrishna Land.
‘ .100 Feet New Scheme Road,
* Coimbatore, Tamil Nadu
__ . Registrar of Societies,
” .. _..Karnataka State.
32 Jamuna Complex, 5″‘ Main Road, I
Gandhinagar, Banga1ore–09
State of Karnataka,
Represented by ;
The Commissioner ofPo1ice,
The Commissioner of Police,
Infantry Road, Bangalore–O1
. . RESPONDENTS
(By Sri. MATHAI M.PAI KEDAY, SRCOUNSEL F’OlV?~=__M/S
CHALAPATHY & SRINIVAS FOR C/R1, AMARNATH S.I_MIjIA
FOR R6, V.I-LRON FOR M/S LEX PLEXUS FOR R1] C
This MISC. CVL. is filed under Section–jl’51…gof ~ CPC1
praying that Hon’ble Mr.Just1ce K.L.Manj_unath Vnriay be ._
pleased to recuse himself fro1_I_1….. the jben”c’h:g healing’
RFA.No.421/2009 for the ends of justice and”.consr;_ienee.” ‘ H A
This MlSC.CVL having been lheard. ancixfelserveciy
Orders on this day, NAGARAI?rlN–J§. J, made the’V_foleleoe.2ingi–
oRD§aau2'RCl The prayer made by respondent
No.1 in the appeal is thatEion’bled&1l(lr.’;T1istiepe”VK.L.Manjunath
reeuse the appeal in the
interest Vofjtistice go’o.d”eonscience.
2. Before ueonsidering the said prayer, it is necessary to
V. ‘”€_’~€’f the faetual leading up to the filing of the said
apyiiicmong – ”
3. A-__lFor- sake of convenience the parties shall be
– ‘referred t,o3in terms of their status in the appeal.
: This appeal is filed by defendant Nos.1 to 4
Challenging the Judgment and Decree dated 17.4.2009
it passed in O.S.No.7924/2001 by the IX Addl.City Civil &
Sessions Judge, Bangalore. The said suit was instituted by-
3
the plaintiff / respondent No. 1 herein against
defendant/appellants for a declaration that the Executive
Committee of Bureau of the first appellant/Society
bar or authority to remove the President orfany.-a ‘
Bearers of the respondent No. 1 and itsettemples ovrutotv eXercise’i’._p V
control over the possession of the pro’per:tyl
No. 1 or administrative the
declaration that plaintiff thenowner. No.1
of ‘A’, ‘1;3= and ‘C’ schedule”–propertiies,’.as–Van:independent legal
entity and for Pfififianent’ ‘$1031 and 11*”
respondent to eiterclisellllthe statutory and
regulatcgitifllpowevrs in them. The said suit
was decreed «in ‘:_j»aggrieved by the said Judgment
and Decree, tdefelndaint Al-‘E_os:”l to 4 have preferred this appeal.
5. ..«§.Misc.Cvl.l\§o;.1Q216/2009 was filed by the appellants
seeking _Veariy:hearing of the appeal, in View of the direction
giVeii._by”the.__Ape§t Court in Contempt Petition (c)492/2004
V . in Civil i\’£o.5657/2002 to the trial court to dispose of
suithir August 2008 on a day-today basis considering
the”‘subject matter of the suit. On 19.6.2009 when the
~~appeai was posted for admission, the appeal was admitted
V and taking note of the submission on both sides, the appeal
92
.a/°.
M6″
” 1. RFA 421/O9 is pending before Justice
K.L.I\/Ianjunath.
2. Parties in RFA -421/O9 are ISKCON Murnbai
Vs. ISKCON, Bangalore, ~j »
3. Above picture shows close association off
Justice K.L.1\/Ianjunath and receiVing_gifts’*atV
the premises of 1SKCON Bar.I.galo_re. I
4. Inspite of having close assocliatiolnt ‘
from 2003 and continue of receiving _ . . A
gifts,..,..,: Justice K.L.’M_anjunati: is still.
hearing the above RFA 4’21/O9, for .re’asoinsfi7_
best known to
5. Morally and ethic’aiiy isxit
6. AS a honestVJudge to the
high rep’uta’iion=:of Justice K..L.Man}unath, is
he right injhearing this rnatterat all ???
Ycififdweiiigsashéf
‘I The Chief Justice of India
* and all iiipspther companion Judges.
2} V ‘Hon~3u1*:abAie Chief Justice of
Karnataka.
3. Honourable Justice Kumaraswarny,
_ “~._High Court of
V _ ,. iiarnataka.
Fourth Estate.”
At ‘T ._OnN1O.’7.2OO9 the following order was passed:
“The Matter was heard in part. After the
case was adjourned, we have received a cover
which contains two photographs said to have
been sent by Jayapataka Swami Sisya Samuha.
These photographs were taken when one of us
Justice K.L.i\/Ianjunath had given a visit to
ISKCON Temple, Bangalore somewhere in the
year 2003. The photo contains a presentation of
92,
-7-
a picture of deity. Below the photograph it is
stated as hereunder:
” 1. RFA 421/O9 is pending before Justice
K.L.l\/lanjunath.
2. Parties in RFA 421/09 are ISKCON Mumbai iii”. J” J
Vs. ISKCON, Bangalore,
3. Above picture shows close associatiorioft’ * ” it _
Justice K.L.Manjunath and receiving g’ifts’~at”the g ~ J A
premises of ISKCON Bangalore. ‘
4. Inspite of having close association V g
from 2003 and continue of _rece_iVin_g gifts,«._.,v._.,:
Justice K.L.l\/lanjuziath is:still”hearing the above
RFA 421/09. for reasons ‘best’
5. Morally and ethiciai-1§rit*–xjightf5’v_ 1 ”
6. As a todcontinltie with the
high refputgatioi”17o__f J’ustVic’e_K._LIMarijunath, is he
right in of thisvvmatter at all C???
Your Well V’
C_.C.: 1l.a”‘i’he Honbie Chief Justice of India and
pp . his other corripanion Judges.
J6 p
Ejloriourabie {Chief Justice of Karnataka.
Honourable Justice Kumaraswamy, High
* [Court ofliarnataka.
” V J’-Counsel
.Sri.S.K.V.Chalapathy. Sri.Udaya Holla submits
p. F-onrtl1.l’Estate.”
-. .._’Th-esle Photographs were shown to the
le.ar;i_ed Senior Counsel appearing for the
appellant Sri.Udaya Holla and learned Senior
appearing for the respondent
that his client has not dispatched the cover and
there was no occasion to get the photo wherein
Justice K.L.i\/lanjunath receiving a photo of deity
from ISKCON, Bangalore since the dispute
between ISKCON, Mumbai and ISKCON,
Bangalore was there much earlier to Justice
K.L.1VIan;’unath visiting the temple. He further
submitted that he and his client have got gull
fl:
3′
/.9
_ 9 _.
Considering the contents in the cover with
the photographs, We are of the opinion that it is
a black–ma.il tactics adopted by the persons who
are involved to avoid this Bench and to
scandalize Justice K.L.Manjunath and bring
down the reputation of this court. We are also of
the opinion that what has happened to Justice
K.L.Manjunath in this appeal shall not happen
to other Brothers/Sisters Judges who have ‘
visited the temple as devotees. When_;”the ” ;.
photograph is taken by ESKCON, Bangalore in._’
2003, it is for them to explain how this .c9i..1_ld,be[ .
sent in the name of opposite -p’ar’ty.p ‘.§’herefi;r’e, 9
both the parties are directed to filethje affida’vits.. X, g
giving explanation. . ._ _v «. V _
Office is directed torlreep the cover and the
Photo in safe custoC1Y- ” . V _
Call this matter on i7*»..i7.’2o09.”” —
Thereafter, the matter “posted ..i7n;§?..009. tjnfthe said
date the’ffolloW”it§gv the court:
9 “‘1’l1e’app_e11a’nt the respondent have
filed their affidavitsf; Learned Seniois counsel
appearingv for ‘*the'” respondent Mr.Mathai
V, ._§M.Paikeday- requests the Court to grant a week’s
time tofile an'””a’dditiona1 affidavit looking into
the iordergsheet of this court dated 10.7.2009
T “and that the respondent is yet to obtain the
_””._pcertified copy of the order dated 10.7.2009. In
‘ V the cpireumstances, time is granted.
Matter is adjourned to 31.7.2009.”
was posted to 31.7.2009. On that day at the
request of the counsel for respondent No.1 the matter was
adjourned to the following week and it was listed on
7.8.2009, on which date the following orders were made:
Per K.L.M, J: K; _
/4
…10__
“This matter was heard in~part on
2.7.2009. Thereafter the matter was adjourned.
to 7.7 .2009. Subsequently the matter was listed ‘ ~,
before this Court on 10.7.2009. After the ~ »
was adjourned, on 2.7.2009 a cover was sent to_”-
both of us. The details of which is narrated.uby.V:’ .
us in our order sheet dt.10.7.2.009–.and’_ thatldapy ‘
Sri.S.A.1\/Iaruthi Prasad, a Member of”i:h”C_B,a1*..’vv…
clarified the circumstances under~._which’–photo ”
was taken in ISKCON and the’ nature of Gift
[which is a photo of Lord–_K’rishna)’ said to have
been given to Justice;K.tL.Manj’unath’ by
ISKCON. Thereafter, we… _di.rec.ted b”0th_ the
parties to file tithe _affidavitsp giving the
explanation and the” rnatteiél }.avas._”lad3’ourned to
17.7.2009. — I
Agajn’gtp1_r_i_e rnattes was –.ad_i_o_urned, from
17.7.2009. at; the requ_Vest.__«-of.the respondent’s
counsel to_.-431 .7 .’200’9[‘.’- . A
In ~ {the 7′; rn_eanwhile_, two letters are
addressed V’ti)”-Justice”‘wK.L.I\/ianjunath, one by
Sri. She-khar 7 etty,” ~ . 0 Advocate dt.24. 7. 2009
statir’rg_ that” Sri.V;Rarr1esh Babu, colleague of
Sri.S.K.’V.Cha1apathy” ff had approached him to
__appear for, one of the parties in RFA
NQ;-42}/2009′”pertaining to ISKCON which is
‘ V. 3 pendin.g”b_efore_ this Court and that he refused to
T “appear. in this case since the matter was pending
bef0re..,_Jufs’iice K.L.Manjunath and the letter
V “further I reads that even after the parties were
‘=dir.e’cte.d” in this case to file affidavit, he had
approached and requested him to file Vakalath.
Similarly, another letter is received by
V’ {Justice K.L.l\/ianjunath from Sri.S.V.Srinivasan.
Advocate which discloses that Sr1.S.A.}_\/Iaruthi
Prasad working as a colleague With Justice
K.L.Manjunath and S.V.Sn’nivasan had
approached Srinivasan requesting him to appear
for ISKCON in the appeal pending before this
Court and that he declined to appear for the
party as requested by Sri.S.A.l\/Iaruthi Prasad.
Though these two ietters were received by
Q
_11_
Justice K.L.Manjunath, on the last date of
hearing on 31.7.2009 to avoid any
unpleasantness these two letters were shown to
Sri.S.K.V.Chalapathy and these two letters were
also shown to Sri.Udaya Holla. On perusal of
these two letters, Sri.S.K.V.Chalapathy
requested us not to disclose the contents of this
letters. Accordingly. on his request the mattelj’-W; ‘
was adjourned to this day.
Today Sri. S.K.V.Chalapathy in. l ” .
presence of Sri.Ramesh Babu s.’.–1’b’m.itS that these
two Advocates are denying __fofr having
approached the two Advoc2,tes__ ”who’- _have_ ”
addressed letters to Justice_’K.L.lVIanjunath.– . . V’
It may be noted at “stage thatlldustice
K.L.1\/Ianjunath had worke_d’~..asx._g a junior _or
Sri.Shekhar Shettyzirom I531 September 1974 to
10″‘ February 197′?” and froin:.ll’.–2Q;2QQ7 till his
elevation Sri.S.V.Sriniv-asanwas_–~pr’ac’tici’ng with
him and that Sri.M3I’uthi Prasad ;w,a;sVa junior
colleague; “of_’– Justice Manjunath and
Sri.S.V.Sriniwasan;. W .
* the’ the submissions of
S_I’i.S.K.V Chalapathy””it is for Sri.Ramesh Babu
3 4andtiSri.1\/Iaz”-u_thi Prasad to file their affidavit.
f:.List~._this matter on 11.8.2009 at 4.30 p.m.
if Per::’C_,R.K:;;j,1araswamy,J
V. the dictation of my brother, His
“Lordship Sri.K.L.l\/Ianjunath. If a Judge is
defarned in such a way as not to affect the
V ” :,adri:iinistration of justice he has the ordinary
remedies for defamation. It is of fundamental
V importance that justice should not only be done.
but should manifestly and undoubtediy be seen
to be done. Therefore in this background, post
this matter before a Bench of which Justice
C.R.Kumaraswamy is not a Member after
obtaining necessary orders from the I-lon’ble
Chief Justice.
L,/,i
_12e
In the circumstances, place this matter
before the P§on’ble Chief Justice for necessary
orders.”
The matter was posted to l1.8.20O9p.W On that» theft ‘*
request of the counsel for respondent l\lo.il,7 the matter :’w_aa_i if
adjourned to 18.8.2009. In the-rneanwhile, iri”yi’e’sy_of
orders dated ‘?.8.2009 the matte’r.:’was before the
Hon’ble Chief Justice was directed that
the matter be heard by Hon’ble
Mr.Justice matter is posted
before this f 2 . if f
7. Inflthe and particularly the orders
made by this court period, Misc.Cvl. application
has beeniifiled d:i..3§¢ha1f of respondent No.1 on 3.8.2009 to
of objections have been filed. Before
¢;ms:;1er;;p.g ~vthe.:’sa”id application on merits, it is necessary to
V by _ mention V-_abcu’t the affidavits filed on behalf of the appellant
do respondent No.1 pursuant to the directions of this court.
On 16.7.2009 the appellant filed its affidavit stating
that it has the fullest trust and confidence in the Judges
hearing the appeal and that it had absolutely no objection
-13..
for the appeal continued to be heard by the same Bench. On
17.7 .2009 respondent No.1 filed its affidavit advertin_g..to..the
newspaper reports dated 11.7.2009 with _
proceedings held on 10.7.2009 it
statements made in the newspaper .-reports’ is”- correct, .7
attributed to have been made.by.___l\/Irduslticeg
would demonstrate his the first
respondent, as the statements andddinivmensely
tarnished the image of the The
said affidavit including
newspaper held on 10.7.2009.
Furthery asmgii filedmby gthewappellants on 30.7.2009
including: in response to which
additional affid_avi.t rejoinder to the affidavit dated
“v30.7..2:0Q9. was fi1ed”by”the appellant No.1 including certain
mean while, the application under
consideratioxddiated 3.8.2009 was filed, to which objections
shave beeii: filed by the appellant on 7.8.2009 to which
A …lffe._Ajolinder affidavit has been filed by the respondent No.1 on
18.8.2009.
9. 1n the said application dated 3.8.2009, while narrating
about the order dated 10.7.2009 and as to what transpired
.42
A
‘ 9 are as foll ws:
\
.. -. an Jr.
M14-
in the court on that day, by referring to para 9 of the
affidavit dated 17.7.2009 it is stated that it is the practi.cee.of
the first respondent to take photographs of _
festivals and visits by dignitaries to the temple:’:’a.nd.::thosel0′
photographs are displayed freely in
reception and other waiting rooms a’n_d’.also displayedl’; on
notice board in the first respoiid_ent_V ternpleiaccesisible to
anyone. There is no’ taking
photographs by general public
who are preseritllon-“those in the sanctum
sanctorum is not prohibited.
Referringll or materials from the
possessilonll of V with reference to the
affidavit is also “made, Athe’~~fi1rther averments at para 6, 7, 8,
_ However, on reading the Order dated
10.07.2009, any reasonable man can conclude
that’ the photographs enclosed are (only) from
thegpossession of ISKCON Bangalore and that
.. _ ISKCON Bangalore is resorting to blackmailing
‘ ‘gand scandalizing His Lordship Mr.Justice
..=K.L.Manjunath and the envelope was sent by
ISKCON Bangalore in the name of the opposite
PaITY~
7. it may be recalled at this juncture, that in
Paragraph 24 of my affidavit dated July 1’7,
2009, I have extracted reports appearing in the
newspaper Deccan Herald on 11.31 July, 2009.
The reports appeared in ‘Deccan Herald’ dated
fin
_15W
July 11, 2009 quoted Justice Manjunath as
extracted below:
‘He said he used to visit the Temple as a devotee
unit! 2003 and stopped thereafter due to several’,_
doubts. “This should not happen to the innocent’
devotees visiting temples he said.’
Similar reports have appeared in P?raiatranig”
Indian Express, Times of Indi_a,~ I)NA.’City;’ATl’1eV” is
Hinju, Kannada Prabha, Samyuktha;Karnata_kapV.__
etc. Copies of the news items’=.pu.biished~_inthe 20
aforesaid news papers were». produced’;
collectively marked as i%ni1eXure*~I~i along
my Afiidavit dated July l7l;”2_009.
8. It is most respectfully stdimitted, that any
right~minded person’ who {_reacis’ aforesaid
News Paper reports will reach a…conclu’s;ion that
Hon’ble Mn: Justice» K}L.Ma’njunath is biased
against ISKQQN i~.’:{anga.lore«.. entertaining serious
doubtséand {opinion. against ‘ESKCON Bangalore.
That the iearnedJtidge– .is_havi.ng a belief that
ISKCOFE I3-an;galore’–arc’ ‘Blackrnai1ers’ who adopt
scu1’ri1–ou”s met.;hod’s.gilor ‘axfoiding the bench’ and
that p delVo_tees'<_should be beware of them.
Obliviousiy of the temple is put at
stake. " =
It submitted, that the Appeal
R.F'.,A.l\io.._ 421/2009, came up for Admission on
~ g "dunes L19, 22009 before 21 Bench presided over by
Pion'ble ffill/Er.Justice K.L.l\/ianjunath and
V "lstrangely,' the Appellants have moved at the time
of admission itself, an application for eariy
hearing of the R.F.A. It is submitted that
Counsel for this Respondent did not oppose the
by 9 'early hearing of the Appeal, and the matter came
' ' .to be listed for hearing immediately, on June 29,
2009 and intact, the counsel for Respondent
No.1 waited for three full days prior to
02.07.2009 from morning till rising of the court
for the matter to reach and the hearing actually
commenced on Juiy 2, 2009 at about 4.00 p.m.
and thereafter the regular Bench for hearing
RFAS changed. I also state that on 10/07/2009,
when the anonymous letter was shown to our
,9
_/ti.
sign.
counsel, he instantaneously submitted that the
same be ignored and request this Hon’ble Court
to proceed with hearing of the Appeal. These l .
facts are narrated for the purpose of showing the” -V ‘
bona tides of the 13’ Respondent and to
the Appellants unfounded allegation of ‘-.chA–_V”».” ‘
hunting’. ‘
10. Thus on the facts and circuinstVa1<1_ces,* V
151 Respondent is havingihuf *'reasoné1.bie
apprehension that ,Hon'bi'e Mr.JLi_stice' i
K.L.l\/ianjunath is biased Aagairistf' _ t.l"iis.
Respondent. it is my huiiible subrr:ission= that
since the learned Judge___i_s'~pre:wdisposeC1 and
having prejudices.as,stated abovefvhe is unable
to act as a Judge inthis, Case'.'f "
Thus the two aspects heing for having an
apprehension of against Mr. Justice__K:L.Manjunath are,
the coiljvt/en–ts ‘dated 107.2009 and the
newspaper reportsxlcf .
4, _10. ‘5’.:.in__pAresvponse’ t0___the said application a counter affidavit
“beenv4’fi1:<-;C1h"'by the first appellant stating that the sole
intentiondv the said application is to protract the
g procefediiigsfx The same lacks bonafides that it is an
"ggnstancevllof contempt of this court as any litigant cannot
choose and judge and any such attempt must be crushed
" a heavy hand. That initially an attempt was made to
it connect this appeal with another appeal and the said request
was rejected and with the consent of both sides when the
ta
W1'/'it
matter was to be heard a courier which bore the address of
the branch of the first appellant situated at Bangal.o_re<l'lisv
stated to have been sent by the disciples of the tiff' .
Thereafter an affidavit has been filed on it"
attempt that the matter is not he»ard::-ratiid d'ettieréeaftef-e._the;_at
application has been filed specific
further averred that there is a _thatflthe first
respondent had taken Honble Judge
when he had visited the of the order
dated of bias on the
part of the dated 10.7.2009 was
dictated" _ vfldeponent of the said
application!' and that sustenance cannot be
drawn _ from lithe newspap'er reports to contend that the
"Pres'i:dingA*-»}u'dge islbiased in the matter against respondent
of the direction of the Hon'ble Supreme
Courtby dated 29.4.2008 which was brought to the
"notice lithe court, it was agreed between the parties that
inatter would be heard at the stage of admission itself on
'''.''account. of the urgency and by consent it was posted to
u".2'9.6.2009. The matter was taken up at 3.20pm on
2.7.2009 and it was heard till the end of the day. That the
allegations of bias made against the judge are false,
4';
.f”)j/sh
_ lg _
scandalous and contemptuous and the prayer sought by
respondent No.1 is wholly untenable. if such prayers are
allowed, then it would encourage the litigants in _’
bench hunting and forum shopping and the .
flooded with such applications. Therefore.–“tl1’e:fappellant..:it
No.1 sought for dismissal of the saidl=.applica*tion..: it
11. In response, on i7.8.2oog,@-oiliaer’ has
the respondent stating that the dated
3.8.2009 was filed Justice
C.R.Kumaraswarny__\zvitl\\EJ by his order
dated dateldWi.0.7.2009 is opposed to
the principles of ‘j–u:stice and that there is absolutely
no urgency lI;o’rV_hearing’v.the. appeal. On the said date the
“If1atter:’w:.a»S takenlllupat about 4.00p.m and was heard for
only; that the filing of application for
recusal doeslelnoit amount to contempt of court; that the two
‘letters pvurported to have been sent in the name of two
A ‘~ namely Sri .She-khar Shetty and
“.”Srl;.S.V.Srinivasan in a bid to avoid Justice K.L.Manjunath
hearing the appeal is probably on account of the
involvement of the appellant who had earlier approached the
counsel for first respondent, namely Sri.Maruti Prasad by
21»
_ LAAAA
writing a letter and including the Demand Draft requesting
him to switch over his loyalty from ISKCON Bangalo1=F;_ to
ISKCON Mumbai; that Sri.Ramesh Babu 8: Srt;lvEaifu:ti.A’
Prasad, Advocates against whom the allegations”haVe”iaeen'”‘ ‘
made in the said two letters have denied’
and therefore, re–iterated the avennents’ prayerpnniadlsifi./_:
the application. _ V V _ V __
12. We have heard the learned ‘Senior Countsel’lSri.} Mathai
M.Pai Keday for the applicant/–‘_resppo’ndenttNo.1 and learned
Senior Counsel, for the
respond_ent/ _ —
13. vSeni_orz_ “Co.iJnsel for the applicant has
«. p_vsub3_ni:tted’ that thoughflie applicant has not furnished proof
ofulsioas–,_neverth.eless the application is based on what
transpirevd the court and also on the newspaper reports.
‘V While’ narrating the facts, he drew our attention to the order
if if V’ 1d;J7.2009 and particularly the following portion of the
— order and particularly to the last paragraph of page 5 of
T “the said order namely the words “blackmail tactics adopted
by the persons who are involved to avoid this Bench” and to
the words “when the photograph is taken by ISIgC.’ON.
W29”
Bangalore in 2003, it is for them to explain how this could be
sent in the name of opposite party” which are the_4vcou.rt~’s
conclusion of the probabilities. That the newspaper’ _
and particularly the quotations in the said .r°ep*0r?£, b nanaelyvgr
“he used to visit the temple as devotee until s’toppedVu h
thereafter”….. “this should .7no__t happen. t::t)”l’ other
brother/ sister judges who are two
aspects which give rise apprehension of bias.
Therefore, according to__ iirajrervvanade in the
application reference to the
order of Mr: dated 7.8.2009 he
stated He has also submitted
that till ‘date no sent to the court to the
sender. of the ‘co_u1’ier–. He has relied upon certain decision of
V’ “the i’lSpex,’Court whichshaii be adverted to.
,__l’VhPer_ learned Senior Counsel appearing for the
l’appellantirespondent, in the application while adverting to
“tlthel two aspects being the basis of bias drew our attention to
l the fact that the order dated 10.7.2009 directed both the
it parties to file affidavits giving explanation and therefore,
there was no conclusion in the matter and neither was it a
case of pre-judging the issue. He has also stated that the
ab
VVVV ._
does not hear the matter and such practices have to be
curbed with a heavy hand, keeping in mind the dignity of the
institution.
15. Referring to the affidavits filed, he submittedptthpatpinWV
the first instance, the applicant did not speaksahoutfp:the*’…._l.’ .
photograph in question being stolen. Byut it has’b~e:’e_nlVstated
so only in the rejoinder affidavit. The wavepring..stan’dl ‘of’-ethe
applicant shows the total lacIt:___ of .fi3.onafideesV,l’l’ that thevl
applicant had earlier filed a simillarilsuit before: the Bombay
High Court which was disrnissec.iA andvfuthterefore, the applicant
has been consio’t.entl:3r in Forum Shopping and
Bench hunting taetica. also stated that it is the
prerogative 0ftl’fl1¢%Vl’IO.I’l’bllt-‘. Chief Justice to allocate the work.
file also ieferredvvltlollcertain decision of the Apex Court
lwhitgh ‘sh all.ppl:)e’VaV<i:Verted to.
In" reply learned Senior Counsel for the applicant
that it is not just the newspaper reports which is the
___"'basis of the application, but the affidavits also have to be
llvtaken into consideration. Adverting to Annexure–1 dated
30.7.2009 it is stated that at an earlier point of time the
head of the institution of Bangalore ISKCON was the
_ 23 _
Chairman of Jaya Pataka Swamy Shishya Samuha but not
presently. He further submitted that the reference made to
the prerogative of the Chief Justice of the High Court to
ailocate Work has no relevance in the matter.
17. Having heard the counsel on both sides ‘
perusal of the material on record, thefollowingflpoiiitls’ if
for our consideration:
1. Whether the prayer inade in the ought = if
to be accepted? __
$2. If the answer “toil point the negative,
whether the filing”0f:”sueh’»_anxVapplviclation amounts
tofprinia conternptoflthis court.
18. V”rWe _ have pp detail the contents of the
application’a.nd»the-_statenient of objections as well as the
. porderspmade on varmuslstates. From the material on record,
it apparexitthat the applicant has raised the plea of real
on two aspects; namely) the order dated
_p the newspaper reports. However, in the reply
if learned Senior Counsel for the applicant stated
C thatleven the contents of the affidavits have to be taken into
if consideratiori and we shalt presently refer to the affidavits.
2»
IIAAJA LLLAAA
19. Pursuant to the order dated 10.7.2009 both sides
have filed affidavits. On 16.? .2009 the appellant has filed its
affidavit stating that with regard to the courier sent toflthe
Judges which bore the address of the branch
appellant situated at Seshadripurarn, BangalQ_re;~–.,’extensive”<9
enquiries were made and that neither the 4in_appel1antp:n(jVrp
any of his discipies had said the comrri1inicationg..Jigitis "stated ll
that the appellants have the fullestitrust in
the Hon'b1e Judges heaiingthe
20. In the affidé.vit.fi1e§d by’ _t,’t1e~.app_lieanif fflI’St respondent,
the proceedingsflof hahvelbeen referred to and on
account of the “of the order dated 10.? .2009
not being yetlavaiialole..”liherty was sought to file a detailed
.9 9. ”af£id’avi’t.a._”it isalso averred that a similar cover with photos
“=t151e;f_ to the Judges Was also received on
first respondent, which was noticed by the
‘ deponenton 10.7.2009. The receipt of the similar cover was
._ ” to the notice of their counsel; that the addressee of
said courier is the 411″ defendant in the original suit from
lexwhich the appeal arises. However, at para 9 8: 10 of the
affidavit it is stated as follows:
_.26a
21. While referring to the incidents of theft of docume_’n_ts,_
it is submitted that the appellant has the abi1i_ty;V.. to ~
material and information of the first_respondent” it”
means and using the same to prejudice”etiie
first respondent. That the appellant also bee:en;flta.rgeting
the persons who are present false-..ltallegat.ions so
as to create prejudice and loring dis-
repute to respondent 24 and 25 of
the afiidavit *
…. C IV:’::t1brIii._t that these’glaring instances
evvidencedlitby unwimpeachable documents clearly
establishes’ {a”c–~:_ “that it is not the 1st
Respondent .pbu[te.thep_ “Appellant who has most
probably” indulged “in”_;sending the said envelop
with photos ethusattempting to scandalize and
,, .’_E3ring dis~repute to the judiciary as well as to the
_ = l’5t2,_Respondent;’ “” ‘Tliis is a clear case of abuse of
‘ u _, processpof the Court and contempt of court.
details of the incident that took place
V in Court on 10«~7«~2.009 are reported in Various
””–newspapers. The reports appearing in Deccan
Herald and Prajavani issues of the newspapers
. dated 11-72009 are extracted as follows: “He
C “said he used to visit the temple as a devotee
V until 2003 and stopped thereafter due to several
doubts. This should not happen to the innocent
devotees visiting temples. “Similar reports have
appeared in the Prajavani, Indian Express,
Times of India, DNA City, The Hindu, Kannada
Prabha, Samyauktha Karnataka etc., Copies of
the article published in the aforesaid
newspapers are collectively produced herewih as
Annexure-H series.
./,j
W30″
appellant No.1. In the said affidavit while re-iterating the
contents of the earlier affidavit dated 17.7.2009 and after
receipt of certified copy of the order dated 10.7.2009, para 4,
5, 6, 12, 13, 14, 1’7, 19, 20, 27, 31 and 33 read as
“-4. I submit that, it is stated in th6_.oi;de”r»l.’ -1-
dt 10.07.2009 passed by this I-Ion’b1e lC.our:t”,=. 0′ it
that Sri S.A.1\/laruthi Prasad, advocate..’wh’o..,was’e. ‘ _
appearing for the Respondent No.1 in; the.tri«a_l, ‘
court, when interrogated by this :_Ho,ri’ble Court,’ ‘J
admitted, that he was taking a__ll*the judges-to
ISKCON Bangalore and ‘.__during_ those yjisit,
photographs were being-ftaken =,I,S_V”._KCi’,)N”l
Bangalore. In this regard,most humbly and
respectfully subrnit. , that, “the ._:F1espondent”-No. 1 ,
through Marathi —-..Prasad, ;Adv-oeate. _ had sent
invitation to only two l~io.r1fble_ judges of this
Court, namely… _ ‘–,I~ionTble”v. )l’».dr.Justice
K.L.Man}ui1.ath_ gland ijI’o.n’.131e’ Mr.Justice
Chandraisheléégaraiah, [ad forrnenjudge of this
court; “I s1._ibrr.i_t that__ apart frornithe above two
Hon’bleJii._1dges,”‘ no ‘m;.¢a*uon ‘was sent through
Sr} Maruthi “‘1i?3r.£1sad.i-._inxriting the other Hon’ble
Judges “tel’,I.SK(?3,Ol’i.T, 4B«a.ngalore.
g submit that on one such occasion,
‘*I::{t3-n’ble~ Mr Justice K L Manjunath was invited
spec”ii,’1cally”‘for a puja on one of the festival days
“lalong’r.Wi’»’§h other respectable persons like our
do.f:iors«,’ sponsors, etc. On that day Plorrble Mr
Justice K. L Manjunath participated in the puja
., _ arid’ after the puja, as is the custom, he was
0 “«-invited to accept one of the souvenirs, a photo
..*frame of the temple deity, and prasadam.
Souvenirs of the temple were given to all the
invitees and Hon’ble Mr Justice K L Manjunath
was one among them. At the time when the
photo frame was presented, various other
members of the public were also present
including devotees in large numbers and the
members of the public including devotees have
taken photographs of the said presentation
Q
=/,
M:-32..
R.F.A.No.421/2009 for the ends of Justice and
good conscience.
XXXXX
12. Re Para 6 & 7: The averrnents
in para 6, that I have filed some new_sp«aper*v..:”‘
cutting, which wrongly reported the proc_ee’t1ings=
dt.10.07.2009 and has sought. to draw”*false’i
conclusion of bias against the judges”._are-fa1’s.6, 9’ V
and the same are not adrnitted. i{.tiis significant
to state here the admitted fact on record, tl_1?lt”C11 ‘
10.7.2009, when the” _Hon’ble’v. Mr. *§justit’..em
K.L.Manjunath passed “over. the co’ver’.= with
photographs to Sri S.K.V.Chalap.athy, the Senior
Counsel appearing~..for the 1?’ Respondent, “the
instant reaction ofS.;K.V’;*Cl2alapathy, the
Senior Advocate was, that:’he i2’re_quested the
court to ignore their-said. cover photographs
and to proceed _:’,furth~ei’w._hearing of the
appeal.” 3Thi;s”instantreaction ontiie part of the
Learned Courisel fu;.,,,,the,_ l1?*l”Respondent clearly
indicates ‘iiheg full ‘conii_dence, téfust and faith, the
15* Respc)jndenftl1ad.,.’for theWHon’ble court. The
avpprehension, or t’he’.i=*’- -Respondent that the
Hon’ble ..E__{.”L,§!.-Ianjunatli is having bias
and ‘*–prejudi’ce ‘against the 13’ Respondent has
started onlypoin the ‘reading of the newspaper on
pg _{ 11.97.2009,. _wherein the said newspaper i.e.
~ ‘Deccan Herald–arild Prajavani have attributed the
statement published by them to the judge, that
9 “they ’11-i’on”‘;:)1e Mr.Justice K.L.Manjunath was
Vi’siting1SKCON temple of the 1st Respondent till
2003a_nd that his Lordship stopped visiting the
te1:_jnp}e»’because of doubts. The starting point of
apprehension on the part of the 18* Respondent,
that the Hon’ble court is biased and prejudiced
00 llflpagainst the 1S’~ Respondent is due to the said
Jstaternent attributed to the judge, which
appeared in the newspapers on 11.07.2009.
However on reading the Order dated 10.7.2009.
a copy, of which was received by the 15*
Respondent on 22.7.2009, which order also very
clearly indicates that the Hon’ble Court without
holding any enquiry and without giving proper
opportunity to the 18* Respondent, has obviously
come to the conclusion, that it is the 1*”
5%
[7
. , ;on facts. ”
M33…
Respondent who has sent the said letter and
photographs in the name of the opposite party.
13. It may be further clarified at this stage ~u
itself, that the 13* Respondent having expressed;..,__a’ 5 _._
full confidence in the court on 10.7.2/009,V’vv
cannot be attributed with the act of sending,the”
said letter and the photographs,’ if the.” 191″
respondent or somebody on: their’ be«l3aLEf* _ ,
sent the photographs and: letter, the _ lst ~ A T
Respondent through their Senior Advocate
would have not instantly _eXpressed and
reposing full faith and confidence in._th’e Court.
The very fact that the Senior’ Counsel for the Est
Respondent had irilstantlyn requested, the conrt to
ignore the said letter” and the photographs and
to proceed to hear the 3r1atter_..further’__ itself is
sufficient proof of their. i’nnccence”andvbonafides.
It ffilay by sublnitted that the
Deccan Herald ll”an4d”–.’P.raj’avani newspapers are
rep1.1.ted”newspapcrand of..l,or_1g5 Standing and are
k7.iown”foir _vthe:ir honest and accurate reporting.
‘l’b,e staterrl:’:’nt”of ‘the«– ..Appellant that the said
reports are wro_ngand~on the said wrong reports,
the LES? Respondent cannot allege bias against
judges”etc’., are ansiistainable both in law and
Para 10 & 11: I have explained in
l”‘idetail*he:*ein above that on one such occasion
“~«…wh,_er1.,Hon’b1e Mr Justice K.L.l\/Ianjunath was
invited specifically for a pnja on one of the
festival days along with other respectable
~ in «persons like our donors, sponsors, etc. On that
” ~_ day Hon’b1e Mr Justice K.L.Manjunath
participated in the puja and after the puja, as is
the custom, he was invited to accept one of the
souvenirs, a photo frame of the temple deity,
and prasadam. Souvenirs of the temple were
given to all the invitees and Hon’ble Mr. Justice
K.L.Manjunath was one among them. At the
time when the photo frame was presented,
various other members of the public were also
/V»
M34.”
present including devotees in large numbers and
the members of the public and devotees have
taken photographs of the said presentation _
made. It is pertinent of state here that excepti”.
for the sanctum sanctorum of the temple where
the main deity is situated, in all other places’ 3
and especially during festivals, photography 5′ ‘
freely permitted. it is significant to state,_here.. 9’
that the Appellants with a malafide.’in’i:en’tion.. ‘
influenced and allured, over a’peri’od aofp lastnin:-g 1 ‘
years, the missionary devotees in»a.bout 2.0″ in
number to switch over their loyalties from
ESKCON Bangalore to ISKCQN Mumbai andfpwvho
are now actively associated “with the Ap.pe,_E_lants’.'”
It is submitted that such”=devotees”who have
defected to ESKCO1-‘~1..Mumtb’ai;. have givenihe
photographs taken by them .o”n,_th_at.yoccasion to
the Appellants, who _srnay_,have ‘dispatched the
same to this Hon’bAle_VCopurt_ in order’ prejudice
the cases of the _ Respondent. The
Appellan:p£.Nci..si’ admits” that” they have no
knoWledge.__ *abfou°t._: _the_ averments made in
Paragraplri 6.: and 7 oi”foiir”‘aifidaVit.
“19. ” _3_e’–. 9″-ara~*’l 13: I submit that the
_§ayer1nent” ~._hat Jayapataka Swami Shishya
Samuha is ti’ie”‘creation of Mr.l\/iadhu Pandit
Dasa is absolutely false and baseless and hereby
T’ “vstc.iit1y”ic1eiiied. It is submitted that the said
organizatien by name Jayapataka Swami
A “aShishy’a Samuha has been in existence for last
three-decades. It is false to state that it is the
creation of Sri Madhu pandit Das. It is true to
state here that Sri Madhu Pandit Das was once
A «elected as the chairman of the said Samuha in
..the year 1983 or 84. Since the beginning of the
theological dispute in 1999 with Jayapataka
swami, Madhu Pandit Das has nothing to do
with Jayapataka Swami Sishya Samuh. It is
Significant to state that the said organization
consists of thousands of disciples of Jayapataka
Swami, Defendant No.4 in the suit. Several
Disciples of Jayapataka Swami even reside in
the address from which the Anonymous Letter
_37m
26. In the context of biasifthe English Courts have
that to disqualify a person from acting in a _
quasijudicial capacity on the ground oft’
subject matter of the proceeding, realallikelih:o.od- .A
must be shown not only .»i1’o_n1 the l”inate1’i’ais.:’_in ifact
ascertained by the party compllainingyy other
facts as he might readily:_h:a_ve verified
in the course of his suspicions of
whimsical, ca1:ii’icipti’s =iunreasonable.Lpeople should not
be made a action of the court. It
might if rested or reasonable
grou1’idsll’–.~\Vxllras V generated, but certainly mere
flimsy. elusiye. lTiOIV’lIvldA ‘suspicions should not be permitted to
‘l V’ forrna ground of de’cision.
~ .VI’n~.t’n.e”‘case of Intemational Airport Authority of India
‘iv/§.’i.r:.b.i§a1:(1§.I’R” 1988 so 1099} it is observed that it is not
«V every suspicion held by a party which must lead to the
it ii.Vconclusion that the authority hearing the proceedings is
biased. The apprehension must be judged from a healthy,
“reasonable and average point of View and not on mere
apprehension of any Whimsical person. The reasonable
ta,
mggs
apprehension, it may be noted, must be based on cogent
materials.
28. In this context it would be of relevance to quote:.fr.oi”‘a
the decision of the Hon’ble Supreme Court in–A4″t11e..eac§e’i ‘
R.Vishwanathan V/s. Abdul Wcgid (AiR…19e:3.’sc’ ‘~i’)ev§}h¢:f«:in,_V it ”
it is stated as follows:
“The rate of law db_outju.diciaI’conduct is as strict
as it is old. No judge can: be co:nsVidered to be
competent to hear acdse in ajhic-3h.he..is.. directly or
indirectly inte1_’ested. VAw;:j)roved– interest in a judge
not only ‘dis’q:ialy'”ies”” him V ‘–ba.t__….:renders his
judgmeiztv oi ‘nutiity._’ __«There_” yetanother rule of
judicial conduct”wh”tch.bears upon the hearing of
case, In, tF1(i:i’fi.,__ the._j’udVge’ expected to be serene
and eoenéhanded, ‘even though his patience may
be sorely tried and’*the-._t1me of the court appear to
bewasted, based on the maxim which is
often repeated” .trtat’justice should not only be
done butV5h,oi–ildFbe”seen to be done. No litigant
_{ should lea-u_e the court feeling reasonably that his
tease was not’?-teard or considered on its merit. if
he then justice, even though done in the
¢ase,,ra»;zs—-:n the doing of it. ” ‘
29.3. Tfhesaid observations were made in the context of an
:””e}.Eegation’.rnade in the said case about a friendship between
Medappa, C.J., of this court and A.Wajid and Mannaji Rao.
support of his allegation, Medappa, C.J. and Wajid were
it great friends, Vishwanathan swore to a few affidavits. Some
other affidavits were sworn before the Supreme Court when
certain proceedings for a writ of prohibition were
9:-//g,
W39-
commenced. The Supreme Court considered as to whether
Medappa, C.J., was so interested as to be disqualified..or_that
he acted in a manner that his conduct in court _
of justice and answered that apart from the_–fac–t
Wajid denied familiarity though
Medappa, C.J., there were no.»i1istances of undue leaning in
favour of the executors of the went on to
show that what happer’1ed’:in casewvasengineered by one
Sri.Raju. as the letters of suggested.
According .farr1ily which did not
know how ilto of a father, however
obdurate,macteril__inT s’a}fié’i§§ay with the court. Their
conductigun’-and gfroni_»the:””an:1ouncement of the Full Bench
was calculaltedfto cexasperate and annoy any judge who held
«..Ah1S-i.owr;~-treputation'”dear. According to the Supreme Court,
the sons of Vishwanathan was studied and
designed further their move for a different Bench.
Ultima.te’ly,v the Supreme Court concluded that though
A lvv£etda,ppa C.J., had heard and decided the probate case
against the family, but that circumstance was not enough to
Wdisquaiify him from sitting on a Bench to hear a case in
which more evidence had been let in. As far as the
allegations about the conduct of Balakrishnaiah, J.. was
‘%§,,
_4oW
concerned, there were allegations made in the affidavits
stating that he had made hostile remarks against the ..e_as_e~.of
Ramalingam while hearing the appeal with _
Pillai, J .. but the Supreme Court remarked: _- ” —
“U every remark of a judge made fram the _BenCh ” ”
is to be construed as int,£t_cattng’.’pr’cjjudt(:e,’l- I. am
afraid mostjudges will fatlto pass. __ the exa’c.ttrtg»
test. In the course of arguments. juaig-este)q)re,ss
opinions, tentatively for.rned,v–. even
strongly; but that does not always ‘mean that the
case has been prejudgecl, Ar}: argument in court
can never be effective the’~.judgesI~ do not
somettmes_’point out *:.vhati.,.”appears to be the
underlying in –Vthe”<,appa.r€nt plausibility
thereof, ancifjany tatvyer or«-litigant, who forms an
apprehension on .th'aij.sccre,–, cannot be said to be
reasonably iaoirngy "so'.– * It has frequently been
noticed .that the'objee'tion ofa Judge breaks down
an a_closet,examination-and often enough, some
judges ar:kr2o'1;vle.:lge. publicly that they were
mistaken. 'Of'"«:iou:.rs"e,V if the Judge unreasonably
obstrucr.ts"the'.flc.w"ef an argument or does not
j allow it to be raised, it may be said that there has
f been nofair' hearing. "
Onyltvheitizbasis of the above principles, the instant
“,_app1icaftio;.n is considered. On a detailed consideration of the
“:,l’rnate~:ia1 on record and aiso the submission made by the
‘ legamed Senior counsel for the appiicant/ respondent No.1, as
‘already stated,the apprehension in the mind of the applicant
with regard to Manjunath J, hearing the matter is based. on
the order dated. 10.7.2009 and the newspaper reports of the
.//«
__.41__.
proceedings dated 10.7.2009. Apart from these two aspects ‘
we do not find any other detail mentioned either…
application or in the affidavits to contend that _
should not hear the appeal. In facththe en.t”ir’e—:cjo.ntroversjQ7′
has its genesis in the two learned Jiidgesnwho were he’a_I_ing.
the appeal receiving a courier’ c_ontairnTng pho’tographs _:janci
questioning as to how Manjunalthn appeal.
it is only on account on thehorder dated
10.77.2009 was passed ‘andAA’»~t.hbe–V”proceedings of
the said date: newspapers on
11.7.2009. of the controversy
with sent the courier to the
two learrledjudgesnl to obstruct the hearing of
the appeal, onepthing t>”eCo’rnes clear, that is, but for the said
‘ W.coritroversia.1 courier”‘which resulted in the order dated
and the consequent reporting of the
procleedingsiilofilthe said date in the various newspapers, the
‘x_applicantj_had no other apprehension whatsoever. In fact on
‘~:l_”a_detai1ed examination of the material on record, we do not
0 find any other material which is stated to be the basis of bias
0’ on the part of the Manjunath J, which may be a reason for
him to recuse from hearing the appeal. In fact when the
issue of the receipt of courier was raised by the Bench on
9:.
W42…
10.7.2009, learned Senior Counsel for the applicant
immediately submitted that the same should be ignoredi.as
respondent No.1 had full faith in the Bench _
appeal. Under the circumstances we fail to understand as to”
how the applicant can take advantage. of
with regard to the courier seni’,__to theltwo learned llulfiiglles
hearing the appeal and the proceedpiiigs and
the newspaper reportirgilpef lpzeoceedingllsl contend
that Manjunathpptl, is applicant and
therefore, he But for the
controversy. sent to the learned
Judgeshearirigp_voi;::3:§y1e had commenced even
prior other point raised in the
application ltznderp”consideration. If at all there was any
in lthe~~~–n’iind of the applicant, the same could
_ liaye’ beeln .l”ex_pressed prior to the commencement of the
appeal, ‘once the arguments in the appeal commenced it
is notproper on the part of any litigant or counsel to state
A ffthat’–.court is biased against a particular party by relying on
the order dated 10.7.2009 and the newspaper reports.
31. Learned Senior Counsel who argued the application
repeatedly referred to the order dated 107.2009 and
W44-
the courier to the Judges. There is no conclusion of any
issue in the matter and much less a conc1usio.n*-that
ISKCON, Bangalore was responsible for sendingfthle _
in the name of the opposite party. eour”
considered View the contents of the order .dated .0
in no way be held to have-.__caused any .V»s’u’sp:icion; or
apprehension in the mind of theV”0apxplicpant.’
32. As far as the newspaper reports’~.are[concerned,certain
observations 10.7.2009 are
reported. are quoted in the
newspaper” be conlsiédered in isolation. The
said quoted in the press have to be
read in the”‘~icor1teX*t of the order dated 10.7.2009. If on
~..learned”””Senior Counsel and other counsel
appearing”fni* applicant expressed their confidence I the
the matter and that applicant/ respondent
No.1 not responsible for sending any cover with
A photographers, we are unable to understand as to how the
0’ newspaper reporting of certain observations of Manjunath J,
“could have lead to any apprehension in the mind of the
applicant. Under the circumstances we hold that the
.2/r»
“.45..
applicant has failed to make out a case in the application
filed.
33. As We have already stated that but for _
regarding the courier received by the leamved*dindg€e3 Who”
were hearing the appeal, the same Zwoullddzhairep .d
the usual course. We re–iterate-that when the ;
to the notice of the counsel on bothilsidpes the receipt of
the courier containing ~a_1i.d”‘certainAAcomments.
both sides openly reposedVilconiidence”-inBench and in
fact the learned Counsel ‘for.Vth’eva.p:plicant also stated
that the’ obiection or grievance to the
Bench hearing that was the position as on
10.7.2009, nflailpto iinddcrstand as to how the order dated
and thesubsequent newspaper reporting of the
have lead to any apprehension in the mind
of
‘g_g34. Atthis stage it would be of relevance to refer to the
A f_”eitati–ons relied upon on both sides.
Learned Senior counsel for the applicant has cited the
it Wfollowing decisions:
_45m
35. The case of P.K.Ghosh & another Vs. J.G.Rajput
reported in (1995) 6 sec 744 has been cited to J contend
that the Apex Court noted in the said decision theta’ _
Judge of the Gujrat High Court should not have
hearing the contempt petition inspite of: .9
which was not an unreasonable -one onthe undisputed facts. ,
That if there be a basis cannot treated as
unreasonabie for a to should
not be heard by a particular» there is no
compelling an alternative, it
is appropriate recuse himself from the
Bench in the said case were
that a suspended by the Municipal
Corpo_r_ation”‘had ch’a11e:_1ge’d the said order of suspension and
V. .:f3eth.na [sinceelevated as a Judge) appeared and had
obtaineVd.”oifVder of stay of the suspension. However, the
co’ntempt.prcceedings were initiated against the Corporation
since thley had not complied with an undertaking mentioned
A of a compromise dated 28.2.1990. The said
9’ contempt proceeding was registered as Misc.Cv1.Application
W184} / 1993 which came up before a Division Bench of Gujrat
High Court, one of whom was Mr.Justice B.J.Sethna and
notice was issued returnable on 29.12.1993. When it came
91%
if
._47..
up for hearing before the said Bench, objection was raised
that it should not be heard by the said Bench because
Mr.Justice B.J.Sethna had appeared as a counsel or; the
first hearing. This request was not acceded to. the
same objection was raised on 10.3.1994 but it
On 18.3.1994 notice was issued and~enquiryi’proceedings,
initiated against the complainant .we’re ._
the order dated 18.3.1994 Spefcialp Lea”ve__ PetitiVon:..;vVas “filed ‘ it
before the Supreme Court. In:the”said..pASpecial..Lea*}e it was
opined that Sethna. J, :.iigi’v?é,.j heard the matter in
the contempt p¢t«ition_:.””‘lhs’: case are quite
differeritllfrorniithe present case, as the present
application’ «arises”op1iV_llaccoii’nt of the developments which
have occurred p’durVi’ngA’the*”pendency of the appeal after the
‘ff’~._ConiIrienceInent of”-~it«sV hearing and therefore while we
to the Views expressed by the
in the said decision, we find that the same
cannot. applied in View of the facts of the present case.
‘ it In the case of State of West Bengal & Others Vs.
if Wéhivananda Pathak 82. Others reported in (1998) 5 SCC
513, the facts were that six Assistant Computers had filed a
writ petition seeking promotion to the post of Inspector of
m48m
minimum wages, Inspector of Trade Unions, other
Inspectors, Investigators, Supervisors etc., of
Bengal Sub–ordinate Labour Service. The said xvliit’ _
came up for hearing before Mr.Justice Ajit KL_1nia«1?. it
(since retired}. The writ petition was__al1oWtei:l f
that Assistant Computers be promoted’ vvithit-effect
13.3.1980. The said direction alfiumber
of affected employees filed appeal
before the Division the Division
Bench modified”‘i:;the directing the
authorities of promotion of
the appelltanltii in accordance with
law. it disposed the appeal. In
compliance the sa*idn’iVrectior1 the State of West Bengal
emp’l’o3*–ees. Two years later some of the
earlier filed a writ petition filed another
writpetition’praying for payment of arrears otlsalary and
‘,_a11ow’anc2es with effect from 13.3.1980 in “terms of the
it ‘».:ijJi1dlg’rnent and order dated 218.2004’ passed by Mr.Justice
‘ ‘Ktimar Sen Gupta. The said writ petition was disposed
and the said Judgment was challenged before the
Supreme Court. One of the contentions raised was that Ajit
Kumar Sen Gupta. J, who had expressed his views as a
M49.”
singie Judge in the first writ petition should not have sat» on
the same Bench between the same parties though initiated
on a subsequent writ petition. The question, thei’cfo1*e_-_’_in*a.3;
whether Ajit Kumar Sen Gupta. J , could sit_o_nEthe’ :1:):ivision”l S
Bench to decide the appeal against;
the second Writ petition. After referring to
bias the Apex Court held that not Ajit
Kumar Sen Gupta. th’e”Sench in
which the impugned .as_i__he had already
expressed his apetition which was
oyer ruled. himself from the
Benched” theVWStupreiI1e Court made a
distinctic-nilbetween.» of facts specifically relating
to a party, “aga’i–.nst_ preconceptions or pre–dispositions
general questions of law, policy or discretion. The
tiniplication Ayplthat in the former case, a judge would dis»
in the latter case, he may not. However,
‘,Heniphasis«:_on this decision by the applicant is on the tests for
A .11’ bias” namely “real likelihood of bias” or “reasonable suspicion
<51; hias" on which de Smith in Judicial Review of
"Administrative Action has explained that "reasonable
suspicion test looks mainly to outward appearance while
"real likelihood" test focuses on the court's own evaluation of
'$50..
the probabilities. However, on account of the reasons that
we have assigned while considering the application, we find
that the said decision is not applicable to the fact.sVV_ic.f_:’ithe
present case. _.
37. In the case of G.N.Nayak Vs. Goa
Others reported in (200212 SCC :’?12′,”it liham/Alt
not every kind of bias which in law tollvitiatre _
It must be a prejudice whichV1s__ir1~ot founded reasonsland it
actuated by se1f–intere,st–whet1*;er. “fpe’cuniarv “or .-personal.
Since bias is consideredhtoybe’ pé:Xte£ision of principles of
naturai’lVju’stio§;f, Vi*1Or’I’1’1}c’l’I1 be a Judge in his own
cause. ‘li.tiganvtVtio~_succ’ess–ful1y impugn an action must
establish rea,sonab_ie’*~”fpossibiiity of bias or prove
..Vcirc.uii1st.ances from ——– –Which the operation of influences
affVecting.v’a’ifair:’ assessment of the merits of the case can be
ini’eri’ed. said case the facts related to the selection to
a post of Professor of Marine Science in the University of Goa
it that context, it was stated that it is not every kind of
‘ bias vwhich in law is taken to vitiate an act. If a senior officer
expresses appreciation of the work of a junior in the
confidential report, it would not amount to bias nor would it
preclude that senior officer from being part of the
3
//fr
-51..
Departmental Promotion Committee to consider such junior
officers along with others for promotion.
38. In the case of Satish Jaggi Vs. State of _
82. Others reported in (2007 (3) SCC 62, C4 W
at Raipur had not shown any dis;inc1i.nation “C C
matter although his brother was to
heavy weight which according could
not stand in the way judicialflxfunction
impartially without fear of the said
case was Sessions Judge
before whom? elder brother of
sitting father of one of the
main a.cc’usged.l court was at the final stage
and about 150 _:prio.s’ecu’tion: witnesses and all the defence
” V’v.*I1tne.sses.A*-ewere examined and what remained to be done in
the arguments and post the judgment,
prayerlvltilhefore the Chattisgarh High Court for
ltzjansferring the petition was rejected, against which, an
filed before the Supreme Court. in the said
___”‘l’deci;sion the Supreme Court opined that “A judicial offzlcer in
it “V.tol1atever capacity he may be functioning has to act with the
belief that he is not to be guided by any factor other than to
ensure that he shall render a free and fair decision, which
he
f
__ …
according to his conscience is the right one on the basis of the
materials placed before him. There can be no exceptions to
this imperative, but at the same time there should not
scope given to any person to go away with thefeeiing
Judge was biased, however unfounded the irnpressiionprndy’ _
be.” In the above view, the Suprerne’ ‘f;ourt’
ensure that justice is not only done, vi:-ut”also seen to be ‘done ~_
and on the peculiar facts of the”‘sa’1d case; despite sure
that the Sessions Judge’ x1§r0u1dt’ha*.teac’te_d in the true sense
of a judicial officer, feit app’ro’1;3riate the case to
some other Se_ss–ion-s Cour: bykznaking clear that
the tr;:’nsfe’rA.. be construed as casting any
aspersions on the’}e’arned”‘Sessions Judge. We have taken
note of thisbdecision andiiave acted accordingiy keeping in
“V ‘~ ‘mind”th.>e _obrservation–s« rnade therein.
39:. “tint of Rattan Lat Shanna Vs. Managing
Comrnit’tee,h Dr.Hari Ram (Co-Education) Higher
»Secog1dcir~y School 32, Others reported in (1993) 4 sec 10,
— the” test of bias has been indicated by stating that it is
Wvirhether a reasonabie intelhgent man, fully apprised of ail
the circumstances, would feel a serious apprehension of
bias. In the said case reference has been made to several
tee
V ,k. “.i_..y iL’s1’t’\..5,.’;-“,g;,:’t_,,V,’;’.’?’
-53-
English decisions and I-Ialsbury’s Laws of England, 4*”
Edition, Vol.2 para 551.
40. Lastly, the order of the Supreme Court M
in R.P.No.999/2009 in SLP (C) 5939/2009 was-cited drairsf
our attention to the fact that even after.,the disrr_1pis–sa1V.Ct1:ie
Special Leave Petition VVh€1’1V,’th”€ petii_ioner .¢x;5re;;.séa
that one of the Judges was biasledjdtiringCthelihearing and in
View of the said appreherisiton ‘p_etiti–oner, theudismissai
of Special Leave Petition matter was
directed to be plaizedbeiioreg for consideration.
We have aisiofl ‘order of the Supreme
Court V
41. Learned’ “for the respondent in the
application” has cited fo_1.iowing decisions:
42. pin the “ea_se=ot’ M’.Y.Sharee_f 82. another Vs. Hon’bie
C’ iaf the Nalglgpfifdfligh Court and Others reported in
‘I is with regard to an application for the
traiisier of’ttie’l::case from the Bench hearing it to another
‘<.BenchA1':he High Court on the basis that the observations
A .,:C.andC"i*eference to the Supreme Court by Rao 8: Deo JJ,
C created bonafide belief in the app}.icant's mind that they were
45,,
_. ..
prejudiced against him and had made up their minds and
indicated that he shall have to go in appeal to the Supreme
Court. The High Court held that the application for
constituted contempt because the Judges .
with a View to divert justice, the twomadvoca’te’s—-té\;*l1o”e.signea:1l’
and prosecuted the applicatior1:i.__we_reffotlndl
contempt. The Supreme Court held that wl*lenv:4_the1f:e is
conflict between an obligation olfl’a;co_unsel’to:lthe cioutt and
his duty to the client, the forrnerxixiiiich prevails in the
following words,_ “when applications or
pleadings contairliintjg matter” the court without
reasonalalpl _:tJce_’n1selilesl about the prima facie
existence. ofeaclequateglrorln.:ls–~therefor, with a view to prevent
or delay the V_lCO!i1″.S€’A”{)_fll”_]:Il.LStiC€’, are themselves guilty of
()f«.courtllartd’that it is no duty of a counsel to his
interest in such applications; on the other
hantit is to advise his client for refraining from
_ H making lallelgations of this nature in such applications
it ” x4’3~;e.__ Invlthe case of Radha Mohan La! Vs. Rajasthan High
.’ (Jaipur Bench) reported in (2003) 3 sec 427 it is
“held that the initiation of proceedings for contempt of court
was on the basis of the averments made in para 4 of the
1;-.=.,_;1.;».;a:”=g,,e=,2,(.i:–l,.*;:a1:u
_ 55 _
application dated 18.9.1991 made before a learned single
Judge of the said court in a Civil Revision petition which ‘was
listed before the learned judge. The applicant u
some observations made by the learned Judge
in the course of hearing argurnentjledto fialzpout s’en«ior”;
citizens representing to the Chief Jul’stiee_tl1at petition ~.
heard by some other Judge. lthelllinatter 11
came up for hearing before the.1learned”-single’judge: the fact
of representation havinglbeg-.:n Chief Justice was
given out and led application dated
18.9.1991. to initiation of
proceecliil1gs”r1:’r::3V5;f_v of and the finding of
contempt. and .andp:Apltt:1ishment on the appellants as
well as his advocate. A”v’_lT”he”ilsame was challenged before the
«.._Sup’rem;e.r.:C0urt, lwhicliupheld the Judgment but accepted
apology of appellant and set aside the punishment of
siinple imprisonment and also the fine imposed on him.
lwy_pHoweverl,}_the Supreme Court held that the liberty of free
{expression cannot be equated or confused with a licence to
‘ make unfounded and irresponsible allegations against the
1’ Wjudiciary as the effect is lowering of the dignity and authority
of the court and an affront to the majesty of justice.
Referring to the case of Shamsher Singh Bedi Vs. Hglgh
&
fr
_55_
Court of Punjab 82. Haryana reported in [1996] 7 SCC 99
the court held that an advocate cannot escape his
responsibility for drafting a scandalous notieenfi-o”‘*.Va
Magistrate on the ground that he did so in ‘
capacity. An advocate is not mereiyan agent ior’t’;m*vgni it
his client. he is an officer of the:”:co13’_rt;~ He
towards the court. There ca1i_b’-eznothing more seri<ox–rthan '
an act of an advocate if it tends to impede,_ obistmct or
prevent the administra,ti0_nrofj ;I.aw.f; it destroys the
confidence of the people in
44. Refererme 3:A::illZ{1S’vI:I1aC,k$. to; .decision in the case of
M.B.Sa.nghi of Punjab 82. Haryana
reported “in 600 wherein it is said that “the
tendency. of the reputation of judicial officers by
.désgrt:ntle.d.4eiements who fail to secure the desired order is
and it is high time it is nipped in the bud.
And; wiien-id member of the profession resorts to such cheap
jgimniieks: with a view to browbeating the Judge into
‘tsluisniission, it is all the more painful. When there is a
wcieliberate attempt to scandaiise which would shake the
confidence of the titigant public in the system the damage
caused is not only to the reputation of the Judge concerned
but also to the fair name of the judiciary. flit/g/3
mall-.;..e -.z a V _ ,. , .e, »
-57..
…….. .. Such cases raise larger issues touching the
independence of not only the Judge concerned but the entire
institution. ……. .. It is high time that we realise thqtlma-eh
cherished judicial independence has to be protected’ ‘hot _
from the executive or the legislature but dlso_frorti::’ «wholl
are an integral part of the system I
45. In the case of Chetak = L’
Prakash 82. Others reported yinV:fii.998) 4.’SCC_5?f§7 it was
stated that no lawyer or shcsaldlllvbel’permitted to brow
beat the court orvmal§.gn*theV?resid.iv11gx:lT)flicer to obtain
favourable’ orders. .71 and litigants cannot be
aflowedlto l”«terroriZef_’~.or<..'%ir;.tir;1idate" Judges with a View to
"secure? orders," whichhtheyhwant and that any attempt made
~._on of thefllitigant to go "forum shopping" or to have
"'.'forum" must be crashed with the heavy
handl at the same time it was stated that Judges
'hnmust impartially referees and decide cases objectively
V' lffuAn'ilnfl.uenced by any personal bias or prejudice. In the said
' 'learned single Judge of the Madhya Pradesh High Court
ll "having been appraised of the facts and circumstances of the
case did not Continue to hear the appeal but while
technically recusing himself had made certain comments so
-1 6 rev .1. . .:’,¢:u’..’a I . d”.k?U,.’
m_58W
as to give vent to his feelings. The question arose before the
Supreme Court as to whether the learned sing1_eg;ii.idge
should have continued to hear the appeal or recriisel .
While referring to the said comments at .pai’aE;’.OV”vo§’«.flied’
Judgment, the Supreme Court he}d.14that,it
learned Judge to hold an eriqui-iy intovthe talte
appropriate action. It is reievanttoystate instant
case in the order dated la’ l.,3i1Qi¢ct.ion vrasltvissued to
both the parties to file the sending of
the courier comments to the
Judges has been no pre–
judging or coiicviusidn in g the matter.
46. the t”‘»..iH.Subbarao Vs. Southern
Petrocfv1emicat$.VVI:1dtgsfries Corporation Limited &
;g_reportecAil”izi——AH{ 2002 Andhra Pradesh 183 the
tfacts” the matter was heard by the Bench in the
foienoon again the case was taken up at 2.i5p.m. At
lthat lti.rrile«.._ counsel for the appellant stated that the writ
it lfpetiti«on be posted before some other Bench since one of the
‘ iearned Judges on the Bench (Dr.A.R.Lakshmanan, J. as he
“then was) had taken a View that the Writ petition against
Southern Petrochemicals was not maintainabie, as it was
1” .,l a. ‘.,,’£3′ 5′ . 5 *1′-J.,) :’ 2 1.2 U U Z’
M 59 V’WVn
neither an instrumentality nor an authority of the State.
While directing the Registry to place the matter ‘before
another Bench the court opined as follows: V
“It is unfortunate …th_at _~’sucii..f» la’
representation was made by the learned counsel ‘
forthe appellant/ petitioner sli-nce[“or;e ofusdhas
taken the View while decidingland’-identicalcase ‘
against the very spme Corporation as ea Judge-.QfV
Madras High Court. is. settled *1a._w that
counsel and parties cannot-,choose’tl<1e Bench
and Bench hunti:ig.V_is d.-eprec.ated-…_ We are Very
much disturbed in regard to tknemrepresentation
made. We are thereforegnot _.i.ncV1_ined_ to hear
this matter,.'_' _ u
47. Two decisi;-ns .reported”‘V.’l”I’993} 3 sec 151
(s.A.Kzig};}id’ Lai”8);’ another) and (2004) 3
sec 363 union of India 3;, Others) have
beencited to newspaper reports, being only
‘St’v.hearsay_—,evidence “cannot be relied upon for initiating
and that it is too much to attribute
authenticity:’i_ credibility to any information or the fact
lgumerely. because it found publication in a newspaper or
fj;oui’nal or magazine or any other form of communication as
‘ though it is gospel truth. Reliance is placed on the said
“decision is in the context of the applicant attempting to
make out a case of bias on the basis of the newspaper
reports dated 11.7.2009 with regard to the proceedings held
‘V77! 69 V’WW
on 10.7.2009. Though the deponent was present in court on
10.7.2009 when certain observations had been made by
Manjunath J, {which fact is evident from his affidavitfetiie
applicant did not perceive any suspicion of V’
observations made by the 1earne.d>*”J.1.1dge_” ‘i’)2.009’…,
However, what is stated in the
reporting of the said observationsin the press had~._:given’:rise * C
to an apprehension in the min_d.VVof..thep applicant there
was bias on the part of _
48. Two other decisions reportediin-“{1v9Q_8,) .1 sec 1 (State
of Rajgistfidrt 82. Others] and (2001) 2
KLJ 1 tifitate of Others Vs. B.Krishna Bhat
82. Others} reg.ard”v.tof”the administrative powers of Chief
‘0 0’ vtlustice :_i-so constitute”‘Benches providing roster and transfer
_fcase’sc.h’ave..”beei3″ cited in the context of the order dated
by the Hon’b1e Chief Justice on the
administrative side directing that the matter be posted before
A ffierach headed by Manjunath J. We do not have any View
‘ contrary to what has been stated in the said decisions.
0 HHHowever, despite the allocation of work by the Chief Justice
of a court it is the prerogative of the concerned Judge to
recuse himself from hearing the matter if the facts and
_ 61 _
circumstances present a situation which necessitates a
Judge from recusing himseif in a matter. Therefore, While it
is the duty of a judge to dispose of the cases a11ocat_edV’Vby*VtheV.
Chief Justice of a court, the propriety not to
lies with the concerned Judge.
49. The reasons we have assigned on”th~e issue of
supported by the decisions and keeping the
precedents cited on both sides, vuvveibare of’ view that
the application being “~–.*.I”1P.br”i’t._ deserves to be
dismissed. If the appellant fullthe Bench, we
fail to totivihy thewappellant would have sent
the courier J, not to hear the matter. If
the res_pond’ent”a1sVQ–_ had Vfutll faith in the Bench, then we fail
* to understand asttttohow the respondent would have sent the
of the appellant. The truth however, has
by a thorough investigation. We therefore
cannot aiiovv the matter to rest.
this stage it would be pertinent to refer to two
letters dated 15.7.2009 and 24.7.2009 Written by
Sri.S.V.Srtnivasan and Sri.S.Shekar Shetty, Advocates and
received by the Private Secretary of Manjunath J., at his
-62..
chambers in the court. On reading of the said letters, it
gives an impression that the applicant/respondent]”No.1
herein have tried to get the authors of the sai.d~..l.ette_rs’
appear on its behalf. It is a matter of record;.._v’ic_1.e lo1’der:
dated 7.8.2009 that the authorsrhofl thesaidi’ ‘ivereV«
erstwhile senior and colleague respectively to :lviar1jttna’th”J.l’–
The said letters state that Sri;’S…}&..Maruti._l1’ras’adt;ifldvocate V
and Sri.V.Ramesh Bahia;..AdV0c’ate’V…hade-approached: them to
appear in this appeal to do so.
Under the circ.vu.m&staI1cef:.=’sl the submission
made by ::Senior Counsel for the
app1ica.ntl’lo’n~:..f?v said two advocates had
denied authors of the said letters
addressed to ‘M.a1’:guAi1atl*i” J. a direction. was given to
* Prasad”and V.Ramesh Babu, Advocates to file
collecting the copies of the said letters in
thelcourtl itself. But, the said letters were not received
begin the. hall. However, on 18.8.2009 a memo filed
if lffseeliing a direction to the Registry to furnish a copy of the
‘ letter written. by the two advocates so as to file the affidavit.
m”Il’ll1e fact remains that there is no affidavit filed by the
concerned advocates.
W53W
51. It would not be out of context to mention the roie of a
Judge in an Advesarial System of Administration of Justice.
It is said that the Judge is nothing but the law speel{itig”e:’2uaid
a good Judge conceives quickly, judges slowly.
of the Judge to enquire not only into ’tile .ma%j’ter.,ll< itiLo[the..
circumstances of the matter. A Jii«dge__fiiust"i3_ear
that when he tries a case he is._li1mse1t'on trial he * V
put on his robes, he put off his.r'elation to any: lffhen the
Judges are put in an .'£AOlc.'lFC1:':,"Vl;1'itE1;iVL"jli'S!;iCrto is "also in "an
ivory toviter; It would also-be re'lev2;trit.Vf_'fI3t: Rose E.Bird.
American Jurist a;iid_.Chief ;.lustice,i. Clalifornia State Supreme
Court Vxthi) lvsai'-:,l;riV1'i i978; V
To Sorrielextertt the questioning of the
eourts 'simply'*paf't of the increased attention
V. that has been paid to all our institutiorls over the
., {past several What concerns me is that the
focus .of~this questioning of the courts seems» to be
T rtot'»_on"m_at–ters of substance but rather on points
of prejudtee and personal pique. A judge's
V ' integrllLy;i"fatrness, temperament and knowledge
off law are all pertinent areas for public
inquiry. However, what is happening instead is
.. that judges are being perceived as easy targets
"and are being portrayed in a manner calculated
to Create prejudice in the public mind. "
it If thelforum of the judicial process is allowed to mount
scurrilous attack on a judge, the t;uest.ioi'i arises whether the
forum of the judicial process of viiification of the juclges or
M64w
imputations to the judges in the pleadings presented to the
court would give liberty of freedom of expression_l'-.t_:o@_an
advocate or a litigant.
53. The above question was raised in the lcauseifof in “Re
Dr.D.C.Saxena and Dr. D.C.Saxenci§ lllfilionterrinori’f,lio’ny’vble’ the
Chief Justice of India reported in SC 1,
a case which called to strike ‘ajlbalance’betwe’ennV”freeldom of of
speech and contempt, the forrnel’;bein’g..a salz’i’tory”Vright in a
liberal democratic Court upheld the
freedom of expression as one of basic conditions for the
progressmof’ thelldevelopment of every man
including the leglala’i1*ater_nitypracticing the profession of law.
According to the slupi+_em–é’ Court. the advocate or the party
appeiaring .__in pe’rs–on’,’ therefore, is given the liberty of
V they equally owe countervailing duty to
n1aii1tain*”fdis_;’nity. decorum and order in the court
proceedings or judicial process. The liberty of free
A » expifiession is not to be confounded or confused with licence
to inake unfounded allegations against any institution, much
do less the judiciary. The court further held as follows:
“….when an advocate or a party appearing before
the court requires to conduct himself in a manner
befitting to the dignity and decorum of the court,
1%
M65-
he cannot have a free licence to indulge in writing
in the pleadings the scurriious accusations 7o_r’;_
scandalisation against the Judge or the court} to
the reputation and dignity of the Judge;’-iigho ‘A ;_.
decides the case are allowed to be prescribed ‘in
the pleadings, the respect for the co_u_r’t=,wouEd
quickly disappear and ir_Ldep_ende’-nce ” of the;
judiciary would be a thing of the past.*”_ -I ‘A i –
54. The court further said””t_hat the reauire a
degree of detachment o’i>je’c’ti’vvi:ty judicial’dispensation,
they being duty bound vvith taken by them
in adjudicatinglthe the court. The
objectivity obtained if the judges
have shoulders for fear of
harassmeiit ht irresponsible demands for
prosecutio:1j_’_,’ to refrain from discharging their
upe.ndingV” iiirtheré action.
of in Re: S.Mu1gaokar reported in AIR
1973 so 72% his Lordship Krishna Iyer, J., in his divergent
:”view_ and in his inimrriitable style has given the broad
guidelines based on precedentially validated judicial norms
…i.nE the matter of the courts’ jurisdiction to initiate
it proceedings for contempt suo rnotu, fie held that after
evaluating the totality of factors, if the court considers the
attack on the judge or the judges scurrilous, offensive,
.__fi;/-t
aggw
intimidatory or malicious beyond condonable limits, the
strong arm of the law must, in the name of public interest
and public justice, strike a blow on him who challengeps.y:the
supremacy of the rule of law by fouling
stream.
56. In the said opinion reference was -made”to”3. decision
Queen V/s Gray (1900) 2 Ai31).._i36)V’to. ldistiriguish._Vbief;;veeri.ii;
any act done or writing published,-sj_calculat_ed bring a
court or a judge of the~–..cburt’&.iint_oiclcinteinpt, or to lower his
authority whichis a classs:.of.co–nt:ernp’t ofcourt and any act
done publishecfcalciilated to obstruct or interfere
with due’ or the lawful process of the
courts which is another ciass of contempt. The former class
«–._Abe1or1gsA–.ito«the category of scandalizing a court or a judge.
Aniotheit.flistinction has been accepted in the case of
fiublication Ltd. V/s. State of Maharashtra
I SO 221)where it is said that the distinction made
A between a mere libel or defamation of a judge and what
amounts to a contempt of the court. According to the
“Supreme Court, the test in each case would be whether the
impugned publication is a mere defamatory attack on the
judge or whether it is calculated to interfere with the due
_w””‘;,
i…67M
course of justice or the proper administration of law by this
court. It is only in the latter case that it will be punishable
as contempt. Alternatively, the test will be
wrong is done to the judge personally or to
public. The publication of a disparaging’ stat.eni1fent will
injury to the public if it tendsto createan appreliensi-onviin
the minds of the people regaidiiig the”i.ntegrity,7_ahility or
fairness of the judge to’.v’ldlete.r:’alctua1 and prospective
litigants from placing the court’s
administration..:fQf-. likely to cause
embarassnient”–.in”the l’lthe.« Judge himself in the
discharge of judicia.,lv.d.utie_s.–
5’7. V’According~tfo,,the S1.1pT¢In€ Court, it is open to any one
to expressfaixg. reaso11at;1,e’j’and legitimate criticism of any act
orv_~c3ondjAur:t of a”‘}’I,1__d_g€ in his judicial capacity or even to
‘ make a ‘proper__ and fair comment on any decision given by
hirn.ibeca:1″se”justice is not a cloistered virtue and she must
be l.alloiiéred’to suffer the scrutiny and respectful, even though
H out.sp0vl§en, comments of ordinary rnen.” However, that does
not ‘mean that a litigant or a member of a public can wrongly
l assume that he is privileged to say that he can say anything
against a judge. The judges are expected to perf rm their
./
sage
duties in accordance with law, but they cannot be maligned
for that protection must be extended to them so that”=are
able to function fearlessly.
58. In this context, it is relevant t:o’erefei’.._to. :the”l:§ase’i1rof
CHARAN LAL SAHU V. UN1oN___oF lmriim, ;.~’¢’;’5.:»i~t..:s;:1Hi:ti1 Ainslie»
1988 SC 107, wherein Ia petition”«v’srasVVfiled.”bit eitperienced
advocate of the Supretne’– a public interest
litigation whichAV_accordi_n;;l5,’ couched in
unsavoury intentihonallattempt to indulge
in mudslingingl Supreme Court and
also ojfliéf At one place in the writ
petition ; « the b lieged that-
“Thus the, working of the judges are cocktail
bbasedp on Western Common Laws and American
techniques, as such unproductive and outdated
_ a:ccorcl’ing”- to socioeconomic conditions of the
\ CC!ii1.i7U.f ‘
-. one another place, the petitioner has
..st’a_ted that.’-
V ” “This Court has become a constitutional liability
without having control over the illegal acts of the
Government …….. .. Thus the people for whom the
Constitution is meant have now turned down
their faces against it which is a disillusionment
for fear that justice is a will of the wisp.”
Yet at another place the petitioner has stated that
this Court is sleeping over the issues like
Kumbhkarna’ ………. . . *7 ;
w”’°”‘
a/” ‘
W 59 ..
The Supreme Court held that piirna facie the petition had
been drawn up with a designed purpose of bringing the
Court into contempt and also expressed its surprise
advocate with a considerable experience had chosen to *
such an irresponsible manner and_.d.ire-cteclhtthe’ to
draw up an appropriate contempt pjifoceeding~
Contempt of Courts Act. _ . V _ —
59. At this stage it is pertine’i1t_”‘i:o men”tion”that}after the
conclusion of the arguii1entst’tto_1i s..ihp§’i’-instantttt application
Manjunath. J, mentioned on receipt of
the J, met the Hon’ble
Chief Justice and shpvved.ljlthecontents of the courier and at
the said metetingtlx/1’anj’vunath.J, categorically expressed that
.—.,._he not hear””‘the appeal and the matter be posted
p_bet’oI”‘c_ Bench. But the Hon’ble Chief Justice
stated thattthe said Bench oniy would have to hear the
tx_pappeai~. However, Manjunath. J. informed his Lordship
A i~lf”CAhief.Justice that he was not inclined to hear the appeal on
‘ merits but that the matter has to be investigated and hence
it matter was posted for that purpose and the order dated
10.7.2009 was passed in that regard. Thereafter in view of
the orders dated 7.8.2009, the matter was placed tgpfore the
§
3:’
{E 1’_,./ )4″
.,.w'”
-71..
were present in court did not understand and realise the
implication of the observations made by Manjunath..tJ”-..after /g
the conclusion of the arguments on both
not inclined to hear the appeals’ ”
opportunity, the applicant had to
unfortunately “wise counse1″5did
stage.
61. After the concitlsion l’ofi’»lithép-luyafiatguments on the
application, he had stopped
visiting he’ having a feeling
of devoti.-on,_Alconslitlerirrgjl’ the deities are quite
different the: temples in South India and
that this “‘*fact and in particular it was
suggested to lSri,lS.A.BlIaruti Prasad, Advocate, who was
court that this was the reason why he had
temple since the year 2003 and which
was”‘-alsolkntiwn to him and the same was admitted by Sri.
Vlpp.”it{[at’uti Frasad, Advocate in court on 10.7.2009. But the
. 0′ newspapers had reported as follows:
“He said he used to visit the temple as a devotee until
it 2003 and stopped thereafter due to several doubts, this
should not happen to the innocent devotees visiting temples.”
it
,5’
-72-
Though the reason for not visiting the temples since 2003
was clarified with Sri.i\/Iaruti Prasad, Advocate, even then the
applicant and their counsel did not realise that–___ the
newspaper reporting of the proceedings dated
could not have been the basis of the applications’:
62. As far as the role of the advocates of the»
this case is concerned, from the order
apparent that Sri.S.K.V.Cha1apathi, iearfied
for the applicant submitted and had fuil
confidence in the and “were not
responsihie the hoover with photographs.
Sri.S.A.iVIaruthi* for the applicant had
admitted that g_Vpri.o,1–‘ 2003, on three occasions on his
2\/AEanjtina’ti1;J, had visited the temple and he
that he alone was taking Judges to
ISi(_C0N,.’Ba:1galore on festivai days. He also admitted that
‘quwhat was; given as a gift was a photo of lord Krishna in a
A e~:i’w:ooden frame in a presentation cover and no Valuable gift
‘ had been given by ISKCON, Bangalore and that whenever
hiluudges had visited ISKCON, Bangalore, photographs had
been taken and all the photographs were with ISKCON,
Bangalore. Though on i0.’7.2009 learned Senior Counsel for
35
Z
.9/”7′;¢
m73m
the applicant stated that the applicant had full confidence in
the court and is recorded in the order dated 1037,2009,
nevertheless the instant application has been
pursued.
63. From the entire material on record what._.W_ev.pe:iiceive is”
a concerted effort made by
their advocates to see thatpathe appeal is heard lb;/’Vii
Manjunath. J. Though we do say anythifigat stage
about the persons involved courier to the
Judges hearing the appeal,~l.3lr’eetl lthle9Vfol.loWAifng_ lflacts have to be
re-iterated: “When the issue of the courier
receivecibv the ‘ii.ea;fi:ng the appeal, both the learned
Senior _v Counsel .Sr’fii..iAJc_layal Holla for the appellants and
” ,S1’i;Sf’K.fJ;Cha1apathi*for the respondent No.1 submitted that
hald.confidence and faith in the Bench hearing the
the order dated 10.7.2009, it is also clear that
l V _Sri.S.:1i.i\i&aruti Prasad, Advocate instructing
A » ll’ S~..K.V.Cha1apathi, Senior Counsei, for the
appiicant/respondent No.1, categorically admitted that it
at his instance, Manjunath. J, had visited ISKCON
Bangalore and that a picture of Lord Krishna was presented
to him sometime in the year 2003 had at that time, the
m.’7.z_}_
photographs had been taken. Since the courier had been
sent in the name of the appellant, both parties were directed
to file affidavits and give explanation and the matter was
adjourned to 31.7.2009 and later to 7.8.2009.
interregnum, Manjunath J , received two letters
Sri.S.Shekar Shetty, Advocate and l
Advocate. In order to avoid any unplealsantrieiss,V._tiieseltwo}
letters were shown to Sri.S.K._V.Chal.ap*athi an.dSri.U’da”yaVWp
Holla, Senior Counsel on bothllsides andas request
made by S1i.S.K.V.C1ialapat.hil ‘ Couvnselv not to
disclose the contents of thei.’Ietter:,l the..irrart:er’_.was adjourned
from H31i.7i;2io_o9 73. :ff_’v7.s.2oo9. On 7.8.2009
Sri.S.K.l’/2Chalapathijg’ “Counsel in the presence of
Sri.R8TI,1esh .andA’:31’if:Maruti Prasad, Advocates. denied
‘JV’«../the-iclontentsx of tl’1e””Ietters. Hence Sri.Ramesh Babu and
‘*9’raéad,”–.. Advocates were directed to file their
affidavits, till the hearing of this application, the said
‘x_paffidavits”;.had not been filed. instead, a memo was filed
A a direction to the Registry to furnish a copy of the
l letter written by the two advocates to file an ailidavit.
‘4 Therefore, the said two advocates have intentionally avoided
filing their affidavits. There are no reasons for Sri.Shekar
Shetiy and Sri.S.V.Srinivasan, Advocates who have fiut in
5/!’
#’
_ 75 IIIIAAA
practice of about fifty years and forty years as advocates
respectively to address such letters. These are the on!-y__ two
advocates who are disabled to appear in the ef
Manjunatlid. There is no contra material placedvsolasl V’
dis-believe the contents of these tWo~>le.ttersT:’ it
having stated that respondent No.21 had”
the court, nevertheless has an applicatiofi’..§n:..3;8.2’OO9. ” V
But from the order dated and “the ahsence of
affidavits of Sri.Ramesh= xBabt1 an-:1 it “E’:ri_.:pSd;A._l\/laruti Prasad.
Advocates, we prima facie. applicant and
counsel for they ap£pili_can’t« have leftfno stone unturned so as
to avoid Manjunath. J. ilhe filing
of the appli’cation.’ls:V’ proverbial last straw on the
camel’s_ baci: aticl “final attempt made by the
“ll’vapp-iicant/respondent””No.1 to somehow ensure that the
heard by Manjunath. J. Further the lengthy
argumentslrnade on the application by the learned Senior
“._ppCounselV”iTor the applicant and no attempt being made to
A fwithldifaw the said application, even after Manjunath. J,
l clarifying in the open court that he had already mentioned to
it the I-Ion’b1e Chief Justice that in View of the receipt of the
courier and its contents, he was not inclined to hear the
appeal, is nothing but a concerted effort made by the
_’]6,.,
applicant/respondent No.1 and the learned counsel to
ensure that the case is not heard by Manjuanth.
View this is nothing but an aspect of “bench _
adopted by the applicant so as to avoid Manjunafih.
hearing the appeal which is nothing buitnfjoruayni 4s_hoppin_gT”‘
ingenuity earlier adopted by the applicant/respioindgeznt
before the Mumbai High Court’;’..:_V’l’lf_ learned
Senior Counsel appearing for
respondent No.1 clients i.e.,
respondent NQ:1 court hearing the
appeal, We how the controversy
surrounding the Judges hearing the
appeal, “ll0′.7.2009 and the newspaper
reporting in0aitsv_Vovm’.’–wa’y proceedings of 10.7 .2009, could
«..havver°16:_dVA to the”applicant/respondent No.1 having a
p_suspicio11_:’tthatV TD/lanjunath. J, was biased against the
applicant; . Q
p_ it well settled that any interference with the Judge
. ‘in_dthe’« discharge of his duties or in relation to his judicial
..fL:r1ctioniI1g amounts to contempt. In fact. interference with
V the administration of justice can take different forms. The
importance of non–interference in judges’ discharge of duties
is expressly stated in Article 211 of Constitution of India. It
W77-
states that no discussion can take place in the legislature of
a State with respect to the conduct of any Judge the
Supreme Court or of a High Court in the discharge»:oflfhhist.
duties. In the context of litigants and lawyers’pa’t–ternp’tinr1g to b
get a case released from a judge, tvheHSupre’;ne-I
case of Chetak Construction Lin1it_ed,._ referprejdj to’
deprecated such a practice as’v»it”would”*aIno1int7to forum
shopping. This in pour cco”nsid.e’red-.._view “aniounts to
interference with the administration of
65. It is “said1″ti’ia_tV a.m__oIigst’l_ the _rarious types of mis-
conduct byHat’eo~i_1nsVe:.lV,’ there is none more reprehensible than
such conduct as_tenVds”todA”impede, obstruct or prevent the
administration of the lawllor to destroy the confidence of the
people such administration. In D.C.Saxena’s case,
the Supreme Court while acknowledging
the right of an advocate to freedom of
‘g_expression in arguing a case before the court, however,
A feInpih–asized the countervailing duties of the advocate to the
‘ court as well as to the opposite party. Irresponsible and
it reckless allegations against a Judge or the judiciary cannot
be condoned on the ground of his obligation to state
2’?
E”
M __
whatever he is instructed to state by his client or on account
of freeéom of expression.
66. In Radha Mohan Lal’s case, referred
Supreme Court held that liberty of free be l
equated with a licence to make unf:ounc_iedg a;-n.d’1irrespor_p1silglei’
allegations against the judiciary. aclvocate–“.l.’Ail1’o«’ rn°al.»r”‘:.
M79-
are not shopping centers. The administration of justice, i)’ it is
to command respect and confidence, must be kept parent all
costs.” Any advocate making any false aliegations
judicial officers or judges is prima facie guilty’ V’
conduct. ..
67. In the case of M.B.Sangi, refe”rred_A_Ato(Vsu’pra’,
that veiled threats, abrasive ‘behaviour; use_of.jdisr’e’spectful ” l
language and at times blatantucondemnatorygattacks are
often designedly employedltwith taming a judge into
submission to secure a:de’sir:ed order. The ‘foundation of our
systemtyvhichea shine independence and impartiality
of those. vlvhol 1na’n’f:.t’l”u§§1’i~.éye shaken if disparaging and
derogatory rem_ark;S.’–ar”e made against the Presiding Judicial
” ‘~ Aimpunity; ‘V
contents of the affidaxdts filed by and on
lV._tbeh.alf..of«applicant/respondent No.1 it is evident that first
it ‘f_*resVp’o.ndent had invited Manjunath. J, to the temple and
‘ alfterlthe pooja as per custom he was presented with a photo
a Wframe of the temple deity and prasadam. The photographs
were taken on such occasions and the same has been sent in
the name of the appellant by courier. While referring to the
,5?
K
W80″,
newspaper reporting of the court proceedings ___dated
10.7.2009, it is stated in the affidawt
applicants/respondent No.1 that if ~
“attributed to have been rriadeflby Hori’bie:’jMf’.Ju.stiee0″‘
K.L.Mary’unath”, correct” den1onstra’teS–r’ pi*ejudice”‘afg.aifi:s_t
the first respondent. Therefore, the’-applicant’
sure if the statement report’ed.x_in.VV’» lvizould be
attributed to Manj , ~.._so”x’Ihether they were
correct. In factgthe tihaitanya Das was
personally his counsel,
Sri.S.A.i\/Iariutj “‘£ii’i.uVS3v.K.’0J.Chalapathi, Senior
Counstii _th’eWp’roceedings on 10.7.2009
and exvitpretssed in the Bench hearing the
matter. Despite this thetapplication has been filed, While at
.,..th€’-‘:_.:i:Sa1′{Il:€ ‘timed dcoiitending that on 10.7.2009 when
. ”–.raised the issue of the courier with
photograp.hs’;__-i§ri.S.K.V.Cha1apathi, Senior Counsel instantly
btureacted vthat the court should ignore the said courier and
0′ ‘ifiphotographs and proceed with further hearing of the appeal,
‘ clearly indicated full confidence, trust and faith of the
04*,”applicant/respondent No.1 in the court. If that was the
instant reaction on the part of the counsel for the
applicant/respondent No.1 on 10.7.2009, we fail to
egg”-
understand as to how the said counsel could have filed the
application attributing bias against Manjunath. tI,”=on.._tthe
basis of the newspaper reports of 11.7.2009. _
the deponent “the apprehension of Jt»he>_respohde.nt: that .0″
the Hon’ble Mr.Justice K.L.Manjut:.ath::”‘:’3:’
prejudice against the respondent«._No.1t”h!_Ls started }onl_t;Hor’i the *
reading of the newspaper on 1 0′ stating so,
it was also stated that ‘had expressed full
confidence in thecourt their counsel.
If the counsel ‘expressed confidence
in the eve fail to understand
as to have drafted and filed
an J, should recuse himself from
hearin the a” neat, While the de onent claims innocence and
.’ V’
on the xhasi’s”of the statement made by the Senior
if.-spondent No.1 on 10.7.2009 to ignore the
1et’ter’tand.photographs and to proceed to hear the matter.
‘,.NeVerthexle_ss the application has been filed alleging bias on
it of the Manjunath. J.
_69§. Under the circumstances we are of the considered
View that this is a fit case where suo rnotu contempt action
has to be initiated against Sr1.Jai Chaitanya Dasa @
Jainarayan K, S/o Mr.K.C.D.NaInbisan, Aged 42 years,
M82-
Secretary of respondent No.1, Madhu Pandit Das, President
of respondent No.1, Sri.S.K.\é:Chalapthi, Senior
Sri.V.H.Ron (Lex Pluxus], Sri.Rarnesh ~
Sri.S.A.I\/iaruti Prasad. Advocates.
70. Office is directed to register the cognternptgiproceedings
in this regard and place the matter. beforetiiet Chief it
Justice for posting.
71. As far as the J, on
7.8.2009 is ;:–_Wgt_are that it was the
opinion of «;i€7’a.g’V’%aVV.¢;LaS€ of a Judge being
defamedandl’ administration of justice.
However’.*«vve– that the entire controversy
is one _V affeactingi.theA’*.adn1inistration of justice and the
V’ ~.allega’tio_ns are prirnaiacie contemptuous within the meaning
the Contempt of Courts Act 1971. The
the applicant and also the affidavits of the
‘V._applicant;’;respondent No.1 are prima facie conturnacious.
A Senior Counsel for the applicant when specifically
‘ asked about the basis for the application, he submitted that
is not only the order dated 10.7.2009, the newspaper
reports dated 11.7.2009, the affidavits filed in this case as
well as on the instructions of the counsel that he is raising
s83″
the plea of bias. Scandalising the Judges or courts tends to
bring the authority and administration of law into
and disregard and tantamounts to contempt. .
bring the court into disrepute or diSI’€Sp€Ct*0I’=’Ei\%hiCh::OffC11d ‘*
its dignity or its majesty or challenge
contempt committed in respect_ of singie J11d’ige~ single
court or in certain circumstances’ =e_om_mitte’d in respect of the
whoie of the judiciary ohjudicial “‘syste’mt. Hence, we are
‘ constrained to issue the above dismissing the
aplllication unriei'”F?§I1sid_er£ition.7 =
72. case, it would be apposite to
refer tovxa ‘dec1s~1on”i:of_ »i’the”‘~Supreme Court in the case of
T.Arqvindarid¢j;tn_Vs.A’*T;VQSatyanal & another reported
* SCA§42«1–«Wh1ch arose from this court. Though
thein the context of Order VII Rule 11 of CPC,
whatis reievvanivwfor the purpose of this case is the fact that
‘V the c5u.n’s4;1’£¢r the petitioner who appeared before this court
‘ifhadii—subvmitted that Venkataramiah J, (as he then was)
— should not hear the matter on the pretext that the petitioner
had mentioned the name of the said Judge in the affidavit
it while describing the prior proceedings. The Supreme Court
noted that the unhappy Judge adjourned the case to the
,4/”,.
W84-
next day and after spending a sleepless night the Judge
heard the arguments without yielding to the bullyingptapctics
of the petitioner and impropriety of his advocate”land”–wen_t” .
into the merits and dismissed the revision””petfition, *_’Ih_e *
Supreme Court noted as follows in the h
”We regret the injlicttion ofthe ordealjgupvon
the learned Judge of the’-Hi§f.h Court l3’y_a’,calloils
party. We more than regretthe _circums_tance that
the party concerned has pbeent to prevail upon
one lawyer or theother.’ to “to the court a
case which was disingenuous or’*aéarse.f’
73. The said”learried gdudgelof as a Judge of the
Apex Court .l«3.uI-“{.Gupta 82. Others Vs.
Presiderttllof4an.d'{5thersl:reported in AIR 1982 SC
149 after sloka, observed as follows:
_ _ trained in ethics or morality,
or pr”ais.e.;_.let lakshmi (wealth) accumulate
. V ” or iéariish as she likes; let death come today itself
or_at”the end of a yuga lmilleniumj, men with
discre’téon_.v~will not deflect from the path of
‘rectiEiJgde’.1=”
74. it .. country has always had great Judges and will
A feontinue to have men and women of learning and high
— reputation, as Judges. This court Cannot simply dismiss the
application on merits and ignore the unsavory controversy
that has been generated in this appeal, culminating in the
filing of the application and the lengthy argpments
K.
/”#3
..o
_.85h
addressed for allowing the said application. Hence, we have
been constrained to issue the aforesaid diT€CtlQv1’J,,’:”‘1?\:fKli.ll€
dismissing the application.
75. In View of this order andvgbeinggg.3conscious’
limitations we direct the Regi._stI’y V”t«:)_ ddpost
proceeding as well as this apbuealtbbegforeld ‘a .j§e1ich”f.of which
Manjunath J, and Nag_a1<.ath.i1a.§. ~ar.e"'not members, after
obtaining necessary ordersvgfrorrhzd Chief Justice.
76. The presented to
Manjunath yfeiar 2003 as well as the
courier; ‘d (if Srishekhar Shetty &
to Manjunath J, are placed
on recovrd. as the same are handed over by him and would be
therecord and the same shall be in safe custody.
Sd/–
JUDGE
Sd/–
JUDGE
KVN*
–w’-w L.~
{rat I
_$g,
£1.:s.__.f?_e.__J.a_4_r;=:_7_r
Misc. Petition filed by R~1 requesting ne,not to
hear this appeal was heard by me and ye? fSister
Nagarathna J. on 18.8.2009 and prior to that eapté:_gag
listed before other companion ;gage;;f.:<rpég¢fore.&f
certain events which werefl taken placed prior wto
18.8.2009 are required toPEbe' hronght Eon record
considering the backgronnd of this case.0
This matter was heard hyyneValonc with my Brother
Kumaraswamy J. on 2L7.8000;:"§herea8ter the matter was
adjourned £or5rfi§e£a£.§£g§§§e£§?'l After the case was
adjourned Jon i2;j,8009f_aH cgeiiar was received. by" my
Private SeC¥%térYe §hd*ra "similar courier was also
received by my Brother flnearaswamy J.. The contents of
the conrier is extracted by us in our order in detail.
Immediateifi fifter the receipt of the courier, on the
Ifnext day itself myself and my Brother Kumaraswamy J.
"net His Lordship Chief Justice and showed the contents
0} of= the, courier received by us and I personally
requested His Lordship Chief Justice to post the matter
lahefore any other Bench in view of the false allegations
3/
81
made against me. However, His” Lordship Chief Justice
reposing confidence in me said that the matt;er_’ii~has to
be heard by us. Even thereafter I madefai”request,to
His Lordship to post the matter _p];A>Aefore_5’any:’_’0ti3.e’rV Ben’chi”.:.p
However, I sought permission to’a,hea’r..’ithe._rnattier—._oi§.iy fie. ”
find out the persons who “dare Iiaehiindp –.the
courier to avoid my Bench reputation
to me and I also infoinegéq Chief Justice
that the records’A’wou1d””ito him to place
before any otpherpp _a*f_te.r out the persons
who are courier.
In thve*J=”to me and to my Brother
Kumaraswemyp iivstated that contents of the
also heeinwiisent to I-lon’ble Chief Justice of
India Viigioimpanion Judges, Hon’ble Chief Justice
Karnataka to the fourth estate.
wees? revealed to us by His Lordship Chief
that such a cover has not been sent to him.
i’hare_after the matter was listed before the court on
VTLV-(A16-..«~i7.2009 only to find out the persons who have
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‘W
’88»
indulged in sending such a courier to bring afbad name
to me. On 10.7.2009 when Mr.Udaya his
arguments I stopped him for a. while and
the receipt of the courier. Beforethe the
cover could be made known cotxnlsel 00
parties Sri.S.K.V.Cha1apath§’;:.V:VV:.”»leavrnei?1″jseiniuor 00 counsel
aP?earj-1’19 5°17 the re5’P:’7.3’9_deIi£”‘V_ exirvenflvvvknowing the
contents of the Vcoverfl that I
should ignore and that his
client has the courtfwhich only
inCi5»Cate§”:,:il-iliiliiiaiiié’-ii Mr.Cha1apathi what was
‘in the coxruiés.-«rip. 0 said that his clients are
no way responsibvlehvand have not indulged and that
confidence in the court. Though
the'” to have been sent to the I-ion’ble
:v_:”‘Chief AJust_icegj’..–and companion Judges and the Press, I
that such covers are not sent to any one of
,e*xc_e’pt to me and to my Brother Kumaraswamy J. . If
such courier had been sent to the press, then
press would have published the same considering the
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background of this case atleast after l0,7.2099.
Matter was adjourned to 17.7.2009 directing both the
parties to file affidavits. On 17f?n2QU§’hsenior
counsel Mr.Mathai M.Paikeday who appeared for §–I fo;W
the first time in the case opened his argueents with an
opening sentence that I should ire¢uséV°s§§§1f from
hearing the appeal by producind the recent fiudgment of
the Supreme Court where His bordshig Justice Markandey
Kat3’u in 2.9. iv No.5939/2009 had
recused. himseir; tron: §§§£;@§i7;hé matter and at his
request matter*sas adjourned to 31.7.2009.
In the nean fihiief two letters were received by me
one by Srirsgéhekharshetty, Advocate and another from
s§i;é<V§§rifii«5$a§f" iiiii "iThese two advocates alone are
disabied to gpgaaz before me. It is mentioned in the
h~Mri',i'.Si;S.Shekhar Shetty that Mr.Ramesh Babu
" colleague .of Sri.S.K.V.Chalapathy had approached. him
V_*¢a;iie: requesting him to file power for Rul and that
isuch_a request was further made by him even after the
in parties were directed to file affidavit. Similarly, in
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556
the letter of Sri.S.V.Srinivasan it is mentioned that
Sri.Maruti Prasad had approached him to filey§akalat on
behalf of R-1 on an earlier occasionfil ffeftere the
receipt of these two letters, to put an end to all the”
unpleasantness, contents of the letters were sheen to
Sri.S.K.V.Chalapathy and Mr.Udaya fie1;a,X1eeefiee senior
counsel for both the ,§artiesE em_After””reading the
contents of the lettersg Mrtdhalaoathy requested me not
to note down letters in the
order-sheet and sonfiht tine he ene week. Then also it
was inforfiedttbrr eel thetfl matter would be closed if
really an attemnt is fiade to avoid my Bench provided an
unconditional la§olog§- is tendered by the learned
connsel:ehose’nemes are referred to in the letters of
Sri:$:Shekher’§hetty and Sri.S.V.Srinivasan. When the
lJcontents_o£~the letters were revealed to the learned
‘*sounsel, Both Mr.Ramesh Babu and Mr.Maruthi Prasad were
*,jp:eeent_in the Court Hall. Accordingly, the matter was
‘edjeureed to 7.8.2009.
<3
83
On 7.8.2009 Mr. S.K.V.Chalapaqthy submitted that
Mr.Ramesh Babu and Mr.Maruthi Prasad had notvV.Vap;i5;:oached
Mr . Shekhar Shetty and Mr . S .V. Srinivasan» .
In the circumstances, a direction–“V”wa-sv, “is”sVued'”%t”oL
Mr.Ramesh Babu and Mr.Maruthi7_Prasr-1d’»._t~o”‘ ”
affidavits and court also Ara-grvcchialvapathy
may receive copies of__ the open
court to enable Mr.Maruthi, Mr.Ramesh Babu to
file their affid’ayitg;;” informed the
court that =co_ilec1;; :copies of the letters
later. was present and not
Mr.Maruthi .J2r§sédf;T gé§ording1y, the matter was
adjourne<_:1._.tLo ,_:V8;e2.00A9..VfiVAfter the dictation was over,
J. sitting as a Companion Judge
hash' order which reads as hereunder:
"I~Ieard»~t_h'feA dictation of my brother His Lordship
V Sri;K."I5.Manjunath. If a Judge is defamed in such
.__"~a wa'y___"as not to affect the administration of
V. ., j'u's–t_ice he has the ordinary remedies for
~jddefamation. It is of fundamental importance that
Justice should not only be done, but should
.r__m§-anifestly and undoubtedly be seen t-o be done.
V Therefore, in this background, post this matter
V before a Bench of which Justice C.R.Kumaraswamy is
6*"
32.
not a Member after obtaining necessary orders from
the Hon’ble Chief Justice. Qig
In the circumstances, place this matter before
the Hon’ble Chief Justice for necessary orders;”
It is unfortunate that a companion Judge who was weii
aware of the fact that we were hearingrthe”partie;ioniyAf
to find out the persons .responsihle .g5r §§9§1fig- the
courier to avoid the Bench has pass§@ an order as if
parties had defamed a dudge and that he should resort
to an ordinary civil ‘interest of the
judiciary I feei it’may§n0t he=propér for me to coment
about the iiii my companion Judge.
Accordingl§;Jthe’natter*was”adjourned to 11.8.2009.
On i1.8.2008 at the request of the counsel for Rel
matter was adfiourned to 18.8.2009. In the mean while,
in tiew of the orders passed by my Brother Kumaraswamy
:c0J; matter was posted before the Chief Justice and His
‘*iordship again directed the matter to be heard by the
0; Bench headed by fie.
0″-_Ihough there was ample opportunity for Mr.Ramesh
“[3abfi and Mr.Maruthi Prasad to collect the copies of the
3%
925
letters in the open court and when the same was offered
by the court in the open court without collecting the
same at the time of hearing the applicetion filed by
R-1, they filed a memo stating” thaty they” may be”
furnished copies of the letters , There are no reasons
for the two Senior Members of the bar Mrfshehhar Shetty
and Mr.S.V.Srinivasan to addreée letters to me about
Mr.Ramesh Babu approachifiqfigmrgfihehhar Shetty and
Mr.Maruthi Prasad; iganfiroachinghi’dMr.S.V.Srinivesan
requesting thien: -for R-1. At the time
of hearinshHMrtQathai,fl]learned “senior counsel made a
submission in the open genre that he is argueing the
matter in yregard-tto- the bias against me on the
instructions “Qt the iiii “$enior’ Counsel Mr.Chalapathy and
Mrt§on_fihc fig en advocate on record. Though they were
lg present in the court hall when such a submission was
‘t@ade~by Mrtfiathai, they did not deny the same. From
5 ithe conduct of the counsel for the parties and in view
lof-_the letters _written by Mr.Shekhar Shetty and
:7 My S.V.Srinivasan, I am of the prima facie view that a
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concerted effort has been made to avoid my Bench even
prior to the commencement of the argucents. and
subsequently.
Since Mr.Mathai learned. seniorfl counsel Vappearing”
for R-1 mainly contends’ that this eclientsi have
entertained.a1 doubt after reading news itens appeared
_ _ Gf E
Visiting ISCKON
on 11.7.2009 in regard~.__to
Temple, why I stopped yisitinc;If§hQN temple from 2003
onwards was also not ciarifiedcwlthlMr.Maruthi Prasad
who was present in the esuxfifngii and I nmde it very
clear thathl fitnyped visiting lfCKON temple since I was
not gettinc devotion considering the appearance of the
statue of, the _deity Wand not for any other reason,
allecjeid against me on account of the
paper repcrtinc was clarified and it was also open for
h,lR«1 and its connsel to withdraw the application atleast
fl’,-v-”
(‘iv-‘
‘2 V . a an
‘ after hearing the clarification ween Mr.Maruthi Prasad
»..~9″\
lpfwho gis_ also assisting Rwl, reasons for “stopping
‘yiaiting ISCKON temple.
6,,
‘ sleepless snight yesterday”.
‘day, for me it is for several weeks.
365
After the arguments were concluded. by’gMr.Mathai
and Mr.Holla in the open court, I disclosed that even
before the matter is placed before pthe@néourt_ on
10.7.2009 I had brought to the notice of fiistfiordshipfl
Chief Justice requesting him to post the matter before
any other Bench and further made knee? to the counsel
for the parties that: I gag “hearing lalong with my
Brother Kumaraswamy J. only pg fin@f¢#fi the persons who
are indulged in ‘sending ifihednphote ito blackmail me.
Even then also Lfir:S;K}§?Chalapathi and Mr.Ron or
Mr.Maruthi éragaa gr nhihameshflsabu or Mr.Mathai did
not venture=tonithdrafi the application filed by Rwl to
recuse from hearing the appeal.
Yd. z§ Q ARivAnDnrfiAM Vs. T.V.SATYAPAL (AIR 1977 s.c –
242i}Vxthe:pAper2_Court have referred. to the agony of
:edMr.Justice Venkataramayya (as he then was): “I spent a
In the said case,
I {~. 2% *, as
Kr*Venkataramayya J. has spent sleepless night for eke
What has happened
1” to me in the present case shall not happen to any other
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m’
SE
Judge. It is the duty and obligation of tIi,ee counse1
for the parties to uphold the dignityg ofii this
institution and to avoid scandalizing the qfifiges fog no
fault of a Judge. W’ t V L
In this background I am of the View tnet e einéere
attempt is made only tarnisnR§§’ima§eleno nepntation to
achieve their ends. N’ R K Vt x
‘{ktf,R/lS6§G9