Sri V Gururaj vs Sri Sri Vidya Sreesha Theertharu
2021 Latest Caselaw 676 Kant

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 IN THE HIGH COURT OF KARNATAKA AT BENGALURU

       DATED THIS THE 12TH DAY OF JANUARY, 2021

                      PRESENT

   THE HON'BLE MR.ABHAY S. OKA, CHIEF JUSTICE

                         AND

THE HON'BLE MR.JUSTICE SACHIN SHANKAR MAGADUM

        WRIT PETITION NO. 44 OF 2021 (GM-RES)

BETWEEN:
SRI V.GURURAJ
AGED ABOUT 72 YEARS
S/O V.RAMA RAO
R/O No.158, 11TH MAIN
4TH CROSS, HANUMANTHA NAGAR
BANGALORE SOUTH
GAVIPURAM EXTENSION
BANGALORE-560019
                                        ... PETITIONER
(BY SHRI KUMARA K.G, ADVOCATE)

AND:
SRI SRI VIDYA SREESHA THEERTHARU
@ SRI D.PRAHALADACHAR
(CLAIMING TO BE 41ST PEETHADHIPATHY)
S/O LATE VENKATARAMANACHAR
AGED ABOUT 78 YEARS
SRI VYASARAJA MUTT (SOSALE)
No.1, BENNE GOVINDAPPA ROAD
GANDHI BAZAAR
BANGALORE-560004
                                       ... RESPONDENT

     THIS WRIT PETITION IS FILED UNDER ARTICLES 226
AND 227 OF THE CONSTITUTION OF INDIA, PRAYING TO
EXERCISE POWERS VESTED UNDER RULE 6 OF CHAPTER II
OF   THE   HIGH    COURT   RULES,  1959  TO   ALLOT
W.P.NO.15239/2020 EITHER TO THIS HON'BLE COURT (I.E.,
THE BENCH CONSTITUTED BY THE CHIEF JUSTICE) OR ANY
OTHER COURT WHICH IS CONSTITUTED BY THE JUDGE
                                -2-



HAILING FROM A DIFFERENT                 STATE     OTHER     THAN
KARNATAKA AND ETC.

     THIS PETITION COMING ON FOR ORDERS THIS DAY,
CHIEF JUSTICE MADE THE FOLLOWING:

                             ORDER

The learned counsel appearing for the petitioner has

tendered across the Bar a memo for withdrawal of this petition.

Though we are permitting withdrawal, it cannot be

unconditional looking to the nature of allegations made in this

petition.

2. The present petitioner is the second respondent in

Writ Petition No.15239/2020 who is represented by the same

learned counsel in the said petition. When the said Writ

Petition No.15239/2020 came up before the learned Single

Judge on 23rd December 2020, a very peculiar request was

made by the learned counsel who appears for the petitioner in

this petition. The request was not only peculiar, but shocking.

The request was that the present petitioner wants to request

the Hon'ble Chief Justice to have this matter heard by a non-

Karnataka Judge of this Court and that a decision be taken in

this regard. Following is the order dated 23rd December 2020:

"Learned counsel appearing for respondent No.2 Shri Kumara K.G. submits that a request is made to the Hon'ble Chief Justice to have this

matter heard by non-Karnataka judge of this Court and that a decision is being taken in this regard.

In view of the above, matter is adjourned by four weeks; in the meanwhile, the proceedings in the Court below shall not be precipitated.

It is open to the petitioner to serve copy of the petition on the first respondent in the Court below; learned trial judge to facilitate such service."

(underline supplied)

3. Prior to that, the present petition appears to have

been filed on 22nd December 2020 seeking a very peculiar writ

of mandamus. Prayer (1) of this petition reads thus:

"1. Exercise powers vested under Rule 6 of Chapter II of the High Court Rules, 1959 to allot W.P.No.15239/2020 either to this Hon'ble Court (i.e., the Bench constituted by the Chief Justice) or any other Court which is constituted by the judge hailing from a different state other than Karnataka."

(underline supplied)

4. Thus, a writ of mandamus is sought to the effect

that the writ petition should be tried by a Bench consisting of

the Hon'ble Chief Justice or any other Bench which is

constituted by a Judge hailing from a different State other than

Karnataka.

5. The averments made in the petition constitute a

classical example of scandalizing the Court which is per se a

criminal contempt of this Court as defined in the Contempt of

Courts Act, 1971 (for short 'the said Act of 1971'). The first

allegation which is very specific at page 4 of the petition is that

the Roster Judge will not give justice to the petitioner who is

the second respondent in W.P.No.15239/2020 on the footing

that there is an excessive interference by the former Chief

Justice of India who is specifically named therein. We are

deliberately not referring to the name of the former Chief

Justice. The matter does not rest here. Paragraph after

paragraph, there are allegations made against the former Chief

Justice of India by naming him repeatedly. Paragraph 8 of the

writ petition reads thus:

"8. Being aggrieved by the posting of the case before Court Hall No.15 or any other court in which a judge from Karnataka Bar would be on the bench, who would for obvious reasons have close proximity, allegiance and reverence towards the Former Chief Justice of India Sri xxxxxx, as per the strong grounded apprehension of this Petitioner, the said postings would not result in yielding just results in disposal of the cases on hand. Having no other alternative, the Petitioner has approached this Hon'ble Court on the following amongst other grounds."

(underline supplied)

6. While reproducing paragraph 8, we have

deliberately masking the name of the former Hon'ble Chief

Justice of India. Paragraphs 10, 11 and 13 read thus:

"10. It is submitted that, it is a strong apprehension of the Petitioner that, the

Respondents to wield clout upon the Hon'ble Court has purposefully articulated that:

"It is submitted that Government of Karnataka on an enquiry held into malfeasances and maladministration including misuse of properties and public funds held thought it fit to appoint an retired IAS officer as Administrator for managing secular matter of Sri Vyasaraj Mutt (Sosale). Accordingly, an order was passed on 25-5-2012 and also constituted Advisory Board headed by the then Former Chief Justice of India. The copy of the notifications are produced at Annexure-A and B respectively."

11. From a bare reading of the above articulation it is clear that the said para does not have any nexus to either the further contents of the Writ Petition or the document forms a vital part of the annexure before the Hon'ble court. Whereas it is a strong apprehension that, inorder to wield a strong clout, and utilize the veneration which most of the Judges hailing from Bar at Karnataka owe towards the undisputed intellect of the Former Chief Justice Sri xxxxx has included such articulations in the said subject matter."

"13. The apprehension of this Petitioner is strongly grounded as most of the Judges who hail from Karnataka Bar in one way or the other owe their allegiance and show their veneration to Former Chief Justice of India Sri xxxxx. Therefore, the present petition has become inevitable to protect the Natural Justice of the Petitioner in the above case. Further, it is a settled position of law that, even a semblance of bias is against Natural Justice."

Again, while quoting paragraph 13, we have masked the name

of the former Chief Justice of India.

7. Even in the grounds for interim relief, the same

allegations have been reiterated. In short, what the petitioner

alleges which is supported by his affidavit is that all the Judges

of this Court who were practising in the Courts in Karnataka

may be influenced by the former Chief Justice of India and

therefore, the Hon'ble Chief Justice should either take up the

matter himself or should assign the matter

(W.P.No.15239/2020) to a Judge who has not practised in the

Courts in Karnataka. On the face of it, such allegations

scandalize the High Court of Karnataka and tends to lower the

authority of this Court. Moreover, such allegations constitute

interference with the due course of judicial proceedings. Such

allegations tend to interfere with the administration of justice.

8. Yesterday, when this petition was listed before the

Court, instead of straightaway initiating suo motu proceedings

for criminal contempt under the said Act of 1971, this Court

invited the attention of the learned counsel appearing for the

petitioner to these scandalous allegations made in the petition.

The learned counsel appearing for the petitioner thereupon

sought time. By recording that time was granted only by way of

indulgence, we granted time till today.

9. An expected, delaying tactic was attempted by the

petitioner to ensure that this petition is not heard today. After

the case is called out today, the learned counsel appearing for

the petitioner submitted a memo for retirement in which, it is

stated that he has informed the petitioner that he would not be

continuing in the writ petition and he has told the petitioner to

take the file and no objection. When this memo was presented

today at 10.30 a.m., we invited the attention of the learned

counsel appearing for the petitioner to the provisions of sub-

rule (2) of Rule 4 of Order III of the Code of Civil Procedure,

1908. We pointed out to the learned counsel appearing for the

petitioner that it is the discretion of the Court whether to permit

an advocate to retire or not. We, therefore, made it very clear

to him that we will not allow the said counsel to retire by

exercising the discretion which is vested in this Court. The writ

petition was, therefore, passed over till 11.15 a.m. when the

learned counsel appearing for the petitioner tendered a memo

of withdrawal which contains the following statements:

"That, the undersigned counsel for the petitioner respectfully submits before this Hon'ble Court may be pleased to permit me to withdraw the writ petition as not pressed, in the interest of justice and equity."

10. As observed earlier, ex facie, the statements made

by the petitioner in this writ petition constitute criminal contempt

under all the three sub-clauses of clause (c) of Section 2 of the

said Act of 1971. The question is whether we should initiate

suo motu contempt proceedings for committing a criminal

contempt against the petitioner. When we applied our mind to

the question of initiating suo motu contempt proceedings, more

than one factors persuaded us not to initiate the same. The

first and foremost reason is that we are guided by what is

observed by the Apex Court in the leading decision in the case

of IN RE S. MULGAOKAR1 in which, reliance was placed on a

foreign decision in the case of REGINA vs. METROPOLITAN

POLICE COMMISSIONER EX.P BLACKBURN2. When this Court

initiated suo motu criminal contempt proceedings against

leading Media houses in the State in the form of Criminal CCC

Nos.1 of 2020 and 15 of 2019, while dropping the proceedings

by the judgment and order dated 28th January 2020, a Division

Bench of this Court to which one of us (Chief Justice) is a

party, relied upon the aforesaid decisions. Paragraphs 34 and

35 of the decision in Criminal CCC No.1 of 2020 read thus:

"34. Though, strictly, it cannot be said that the contempt has been purged, we must be guided by the principles laid down by the Apex Court in its leading decision in the case of IN RE S. MULGAOKAR. We are guided by an erudite opinion by Krishna Iyer J. which summarizes the entire law of contempt and which attempts to lay down comprehensive principles. We are tempted to quote what

(1978) 3 SCC 339

(1968) 2 WLR 1204

Krishna Iyer J. has said in paragraph 27. The said paragraph reads thus:

"The first rule in this branch of contempt power is a wise economy of use by the Court of this branch of its jurisdiction. The Court will act with seriousness and severity where justice is jeopardized by a gross and/or unfounded attack on the Judges, where the attack is calculated to obstruct or destroy the judicial process. The Court is willing to ignore, by a majestic liberalism, trifling and venial offences the dogs may bark, the caravan will pass. The Court will not be prompted to act as a result of an easy irritability. Much rather, it shall take a noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations when it chooses to use, or desist from using, its power of contempt."

35. Though the first part of what is said in paragraph 27 which forms part of the first rule may not apply, this is a case where this Court has acted with seriousness as justice is jeopardized by gross and/or unfounded attack on the Judiciary. However, as observed by Krishna Iyer J., considering the limited remorse shown by the accused and other assurances given by them, we are tempted to show what his Lordship describes as "majestic liberalism". In the same erudite exposition, in paragraph 40, the Apex Court has referred to a well known decision in the case of REGINA vs. METROPOLITAN POLICE COMMISISONER EX.P BLACKBURN by saying that this judgment is based on a very valuable and remarkably fresh approach to the question of criticism of the Courts in intemperate language. Krishna Iyer J. has quoted the opinion of Lord Denning which reads thus:

"This is the first case, so far as I know, where this Court has been called on to consider an allegation of contempt against

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itself. It is a jurisdiction which undoubtedly belongs to us but which we will most sparingly exercise : more particularly as we ourselves have an interest in the matter.

Let me say at once that we will never use this jurisdiction as a means to uphold our own dignity. That must rest on surer foundations. Nor will we use it to suppress those who speak against us. We do not fear criticism, nor do we resent it. For these is something far more important at stake. It is no less than freedom of speech itself.

It is the right of every man, in Parliament or out of it, in the Press or over the broadcast, to make fair comment, even outspoken comment, on matters of public interest. Those who comment can deal unfaithfully with all that is done in a court of justice. They can say that we are mistaken, and our decisions erroneous, whether they are subject to appeal or not. All we would ask is that those who criticize us will remember that, from the nature of our office, we cannot reply to their criticisms. We cannot enter into public controversy. Still less into political. We must rely on our conduct itself to be its own vindication.

Exposed as we are to the winds of criticism, nothing which is said by this person or that, will deter us from doing what we believe is right; nor, I would add, from saying what the occasion required, provided that it is pertinent to the matter in hand. Silence is not an option when things are ill done."

11. It is unfortunate that the petitioner has gone to the

extent of alleging that all the Hon'ble Judges of this Court who

were practising lawyers in the State of Karnataka will be

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influenced by a former Chief Justice of India who was a Judge

of this Court. The allegation is that most of the judges show

veneration to the undisputed intellect of the former Chief

Justice of India. We must remind the petitioner that the Hon'ble

Judges holding the constitutional posts are human beings and

they are bound to have respect for those who are possessing

high intellect and knowledge. However, the Judges have taken

oath under the Constitution. Merely because the Judges

respect somebody, it does not mean that they will be guided by

the said person when they discharge their judicial duties. While

making such allegations, the petitioner has tried to cast

aspersions on the retired Chief Justice of India. At one place in

this petition, the petitioner himself talks about the undisputed

intellect of the said retired Chief Justice of India. There is

absolutely no basis to allege that the said retired Chief Justice

will influence the Judges of this Court while they discharge their

duties. It is impossible to believe the said allegations.

12. This action of the petitioner which is nothing but a

serious attempt to scandalize this Court has to be condemned

in the strongest possible words. As stated earlier, one of the

reasons why we are not initiating suo motu contempt action is

that we will be guided by the principles laid down by the Apex

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Court. What the Apex Court held is that we as Judges of the

Constitutional Court should show majestic liberalism. The

Apex Court has quoted the law laid down in the case of

REGINA (supra) wherein Lord Denning has observed that we

as Judges will never use contempt jurisdiction as a means to

uphold our own dignity. That must rest on surer foundations.

We may, however, remind all concerned that in the same

decision, Lord Denning observed that silence is not an option

when the things are ill done. Therefore, when we say that we

are not inclined to initiate action for suo motu criminal

contempt, our silence should not be construed as our

weakness. We believe that if at all magnanimity has to be

shown, it has to be by the persons who are holding

constitutional posts.

13. Apart from the fact that the petitioner has

ultimately filed a memo for withdrawing the petition, the main

reason which persuades us not to take action is the law laid

down by the Apex Court which this Court followed in Criminal

C.C.C.No.1/2020. While we say so, we again reiterate that we

will not adopt the option of silence when such a shocking

attempt is brought to our notice to scandalize the entire High

Court of Karnataka.

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14. Before we part with this order, we must say

something about the role of the members of the Bar. It is well

settled that a member of the Bar is expected to act first as an

Officer of the Court and thereafter, as the mouthpiece of his

client. In this behalf, we cannot avoid temptation of what is

observed in paragraph 7 of the decision of the Apex Court in

the case of T.ARIVANDANDAM vs. T.V.SATYAPAL AND

ANOTHER3. Paragraph 7 of the said case reads thus:

"7. We regret the infliction of the ordeal upon the learned Judge of the High Court by a callous party. We more than regret the circumstance that the party concerned has been able to prevail upon one lawyer or the other to present to the Court a case which was disingenuous or worse. It may be a valuable contribution to the cause of justice if counsel screen wholly fraudulent and frivolous litigation refusing to be beguiled by dubious clients. And remembering that an advocate is an officer of justice he owes it to society not to collaborate in shady actions. The Bar Council of India, we hope will activate this obligation. We are constrained to make these observations and hope that the co- operation of the Bar will be readily forthcoming to the Bench for spending judicial time on worthwhile disputes and avoiding the distraction of sham litigation such as the one we are disposing of. Another moral of this unrighteous chain litigation is the gullible grant of ex parte orders tempts gamblers in litigation into easy courts. A judge who succumbs to ex parte pressure in unmerited cases helps devalue the judicial process. We must appreciate Shri Ramasesh for his young candour and correct advocacy."

(underline supplied)

(1977) 4 SCC 467

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15. The Apex Court expressed displeasure about the

manner in which the party concerned was able to prevail upon

a lawyer to represent before the Court a case like this. In this

case, we have before us a young member of the Bar who

should follow what is laid down by the Apex Court. In

paragraph 7 of the aforesaid decision, when the Apex Court

said that it may be a valuable contribution to the cause of

justice if the Advocates screen wholly fraudulent and frivolous

litigations refusing to be beguiled by dubious clients. We hope

and trust that the learned counsel appearing for the petitioner

has learnt a lesson and he will hereafter follow what the Apex

Court expects the members of the Bar to follow.

16. The petitioner should not be under the impression

that as far as this Court is concerned, the matter is finally over.

We have quoted the submission made by the petitioner who is

the second respondent in Writ Petition No.15239/2020 which is

recorded by the learned Single Judge in his order dated 23rd

December 2020. We expect the petitioner to immediately go

before the learned Single Judge and withdraw the said

submission. If the said submission is not withdrawn, the option

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of initiating suo motu contempt proceedings against the

petitioner always remains open.

17. Now, we come to the question of saddling the

petitioner with costs. Yesterday, we have spent quite

sometime to explain to the learned counsel appearing for the

petitioner the seriousness of the allegations made in the

petition. Today, we expected the petitioner to show remorse.

Instead of showing remorse, the delaying tactic which we

expected was attempted to be adopted by his counsel by

applying for discharge or retirement. Only when we pointed out

to the learned counsel appearing for the petitioner that we will

not tolerate such tactics and we will not allow him to retire, that

the counsel filed a memo to withdraw the petition.

18. Therefore, this is a fit case where the petitioner

should be saddled with exemplary costs quantified at

Rs.1,00,000/-. The costs the will be payable to the Karnataka

State Legal Services Authority (KSLSA). Under the directions

of this Court, the KSLSA has been directed to co-ordinate the

activities of assisting and helping the children who are forced to

sell toys and other articles at the traffic signals in the City of

Bengaluru. After the cost amount is paid, the KSLSA will utilize

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the same for the benefit of such children. This will ensure that

though the petitioner is out of pocket by Rs.1,00,000/-, that

amount will be used for a noble and constructive purpose.

19. The petitioner has laid an emphasis on his case

being heard by a non-Karnataka Judge. Such concept does

not exist. Every Judge of this Court including the Chief Justice

is a Karnataka Judge.

20. We, therefore, pass the following order:

(i) In view of the memo tendered today which we have

quoted in the order, the petition is disposed of as

unconditionally withdrawn;

(ii) We direct the petitioner to pay costs quantified at

Rs.1,00,000/- to the KSLSA. The amount shall be paid within a

period of one month from today;

(iii) As observed earlier, the cost amount shall be utilized

for the purpose which we have specified above;

(iv) Though the petition is disposed of, the same shall be

listed before this Court on 19th February 2021 for reporting

compliance by the petitioner;

(v) We direct the Registrar (Judicial) to submit a report to

this Court on 19th February 2021 stating whether the petitioner

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has taken steps to withdraw the statement made by him before

the learned Single Judge which is recorded in the order dated

23rd December 2020 which we have quoted above;

(vi) We make it clear that though we are not forcing the

petitioner to withdraw the said statement, while recording the

reasons, we have already made the petitioner aware of the

consequences of not withdrawing the said statement;

(vii) File of Writ Petition No15239 of 2020 be returned.

Sd/-

CHIEF JUSTICE

Sd/-

JUDGE

SN/CA