The bench of Justices Uday Umesh Lalit and Ajay Rastogi further directed the Registry to list the plea before an appropriate bench against accused Vijay Kurle, Nilesh Ojha and Rashid Pathan, for levelling serious allegations against Justice Rohinton Nariman and Justice Vineet Saran over their order sentencing Advocate Mathews Nedumpara guilty of Contempt of Court.
Advocate Partho Sarkar, appearing for Vijay Kurle, submitted that he has filed an application. The bench reminded him that as per the last order, there was an extension granted to him and before that also, four months extension was granted.
Mr Sarkar submitted that the Indian Bar Association has been fighting against a lot of issues.
Bench: That’s a different matter. Don’t connect the two. There was an extension, and then came another extension. The only thing is how much time to surrender sir?
Justice Lalit: We are not going to revisit those matters. The only concern is the Surrender. As a Counsel, you must understand.
Advocate Nilesh Ojha, Respondent No 3, appearing in person, submitted that there is the same situation in Maharashtra due to Covid-19.
Justice Lalit: When will you surrender, tomorrow before whom? You should be taken into custody.
Adv Nilesh Ojha: Please hear me for five minutes. Give me four weeks extension.
Justice Lalit: We are not revisiting those issues. We are not going to grant you even one day. Before who you will surrender? The only issue is, when the time for surrender has expired, are there any other extraordinary circumstances to consider this?
Adv Nilesh Ojha: Reading the affidavit.
Justice Lalit: Unless and until you point out any official communication, I will not entertain your arguments. Which court or which police station will you surrender before?
Justice Lalit: Where is the native place of this man, Vijay Kurle? Why do you want to go from Ratnagiri to Vardha 900 km to surrender? Surrender in Mumbai. You are shooting in the dark, one doesn’t know you make the RTI enquiry or when the reply comes. When did he (Rashid Khan) file it? The affidavit doesn’t say anything. Where are those communications?
Adv Nilesh Ojha: We are having an objection. Mr Luthra (Amicus Curiae) cannot argue, it’s against Section 10 Supreme Court Rules.
Justice Lalit: very well, we are allowing Mr Luthra to speak.
Senior Advocate Siddharth Luthra: showing the court recall order. That was the recall filed by Mr Rashid Khan. The only remedy available is of the review.
Justice Lalit: Let Mr Kurle surrender before the Court in Thane.
Adv Sarkar: my humble submission is that taking into account the mitigating factors, the court must extend some time. I have filed a writ petition with other some co-accused with Mr Nilesh Ojha and Mr Rashid Khan. Some time must be granted taking into account this.
Justice Lalit: where are those writ petition and their numbers? How many of these Petitions have come up before this Court?
Adv Nilesh Ojha: not listed despite many times mentioned.
Justice Lalit: Mr Sarkar submits that writ petitions preferred by Vijay Kurle, Nilesh Ojha and Rashid Khan are pending in this court and they may have some bearing. As far as the present matter is concerned, the Registry is directed to list the writ petition, alone with this one, before an appropriate court.
Justice Lalit: The time to surrender is expiring tomorrow. List these matters before the appropriate court tomorrow. Whatever you want to place keep those documents ready. Supply the copy to learned Amicus.
The Supreme Court was hearing the suo motu contempt petition (Criminal), by which the Court had directed Vijay, Nilesh and Rashid to undergo simple imprisonment for a period of three months each and fine of Rs 2000. In default of payment of fine, each of the accused shall undergo further simple imprisonment for a period of 15 days, the Court had ordered.
“Keeping in view the COVID-19 pandemic and the lockdown conditions, we direct that this sentence shall come into force after 16 weeks from today, when the accused should surrender before the Secretary General of this Court to undergo the imprisonment. Otherwise, warrants for their arrest shall be issued,” the bench led by former Justice Deepak Gupta and Justice Aniruddha Bose had passed this order on May 4, 2020.
The basis of the present contempt are two letters, reportedly signed by Rashid Khan Pathan and Vijay Kurle on March 19 and 20, 2019, using derogatory remarks against Justice Nariman and Justice Saran.
The three accused raised a number of preliminary issues in the letters, which include:
(i) The Bench of Justice R. F. Nariman and Justice Vineet Saran could not have taken cognizance of the case because the case was not assigned to them by the Chief Justice and that both the Judges acted as Judge in their own cause.
(ii) The Bench has not suo motu taken notice of the contempt and therefore, the Registry cannot treat it as a suo motu petition.
(iii) Even in suo motu contempt proceedings, the consent of the Attorney General is necessary.
(iv) The proper procedure of framing a charge is not followed because the defects at the initial stage cannot be cured by later orders/developments.
(v) The Judges were bound to disclose the source of information.