KARNATAKA HIGH COURT (DB)Before:- N. Kumar and Mrs. Rathnakala, JJ.
C.C.C. (Criminal) No. 20 of 2009. D/d. 16.04.2015.
High Court of Karnataka - PetitionerFor the Appellant :- M. Narayan Reddy, SPP.
Jai Chaitanya Dasa alias Jayanarayana and others - Respondents
For the Respondent :- R.B. Naik, Sr. Counsel, A. Sanath Kumar, T.V. Vijay Raghavan, Srinivas V. Raghavan, M/s. Indus Law, Vivek, Reddy, S.S. Naganand, Sr. Counsel, Sriranga, S.G. Bhagwan, Advocate.
3. From the aforesaid order, it is clear that after the case was adjourned from 07.07.2009 to 10.07.2009, the learned Judges received a cover which contained two photographs said to have been sent by Jayapataka Swami Sisya Samuha. When the same was brought to the notice of the learned Counsel appearing for the parties, both the learned Counsel submitted that they and their clients have full confidence in the Court and their respective clients are not responsible for sending the cover with the photograph. The Counsel for the appellant submitted that the said photograph has been dispatched by the respondent to bring bad name to the appellant and to scandalise the judiciary and requested the Court to hold an enquiry.
The report in TIMES OF INDIA dated July 11th, 2009 reads thus:
The report in THE NEW INDIAN EXPRESS dated July 11th, 2009 reads thus:
Similar reports are found in vernacular language news papers as well.
7. On 17.07.2009 the first respondent filed its affidavit which reads as under:
8. Thus, the first respondent also denied having sent the envelope with photos and gave a graphic description of the events which has happened after the institution of the suit out of which the appeal arises and the part played by the appellant and its associates. Therefore both the parties denied that they have sent the said envelope with photos and accused the opposite party of indulging in the same. Therefore, the question as to who sent this envelope with photos and the writing contained below the photos remained a matter to be enquired into.
10. The first appellant on 30.07.2009, filed one more affidavit traversing the allegations made in the affidavit of the first respondent and denying the same. They also made some fresh accusations against the first respondent. On 07.08.2009, the first respondent on receipt of the Order dated 10.07.2009, filed additional affidavit and rejoinder to the affidavit dated 30.07.2009 filed by the first appellant reiterating what he had earlier stated and denying the allegations made by the first appellant in his affidavit dated 30.07.2009.
Per C.R. Kumaraswamy, J.
12. From the order dated 07.08.2009 it is clear that two letters were received by Hon'ble Mr. Justice K.L. Manjunath in his Chambers. The two Advocates referred to in the said letters denied the contents of the same. The Junior Judge in the Bench was of the view that the contents of the letter and other allegations have nothing to do with the administration of justice and if at all, it is a matter between the Senior Judge and others. When the Senior Judge persisted in holding the enquiry, he wanted to be recused from the hearing and the further proceedings.
15. The appellants filed statement of objection to the above application on 07.08.2009, denying all the allegations in the affidavit and reiterating what he had averred in his earlier affidavit. The 1st respondent filed his rejoinder denying the allegations in the statement of objections.
17. After referring to the various judgments of the Apex Court, the Court was of the firm view that the application was devoid of merits and deserved to be dismissed. Then they proceeded to observe that if the appellant has full faith in the Bench, they failed to understand as to why the appellant would have sent the courier asking Hon'ble Mr. Justice K. L. Manjunath not to hear the matter, and how the respondent would have sent the letter in the name of the appellant. The truth however, has to be discovered by a thorough investigation. Therefore, they proceeded to hold that they cannot allow the matter to rest. Thereafter, they referred to two letters dated 15.07.2009 and 24.07.2009 written by Sri. S. V. Srinivasan and Sri.S.Shekar Shetty, Advocates and received by the Private Secretary of Hon'ble Mr. Justice K.L.Manjunath in his chambers in the Court. On reading of the said letters, the Court was of the view that it gives an impression that the 1st respondent tried to get the authors of the said letters to appear on its behalf. Then they referred to the relationship of the authors of the letter with Hon'ble Mr. Justice K. L. Manjunath and also to the authors of the letters declining to appear for 1st respondent in the appeal, the two Advocates i.e., A.5 and A.6 have denied having approached the authors of the said letters addressed to Hon'ble Mr. Justice K. L. Manjunath; direction issued to A.5 and A.6 calling upon them to file their affidavits by collecting the copies of the said letters at the Court Hall itself, which was not complied with by A.5 and A.6. Then they referred to the conversation held between Hon'ble Mr. Justice K. L. Manjunath and the Chief Justice wherein Hon'ble Mr. Justice K. L. Manjunath expressed his intention not to hear the matter. It is observed in para 59 of the order that even after hearing the above facts from Hon'ble Mr. Justice K.L.Manjunath, the 1st respondent and their counsel could have submitted that the application would not be pressed. On the other hand, an order on the said application was insisted upon by the applicant and the counsel for the applicant. Further, they observed in Para.60 that the instructing counsel and the Senior Advocate engaged by the 1st respondent, who were present in the Court did not say anything contra and thereby they have admitted that they have instructed the Senior Counsel to submit with regard to the prayer made in the application. Further, they have observed that it is unfortunate that the instructing counsel Mr.Ron and the Senior Counsel Sri. S.K.V. Chalapathy, who were present in Court did not understand and realise the implication of the observations made by Hon'ble Mr. Justice K. L. Manjunath after the conclusion of the arguments on both sides that he was not inclined to hear the appeal. This was the best opportunity for the 1st respondent to withdraw the application. Unfortunately, "wise counsel" did not prevail even at that stage. Then in the order, it is stated at para 61 that after the conclusion of the arguments on the application, Hon'ble Mr. Justice K. L. Manjunath also stated that he had stopped visiting Bangalore ISKCON since he was not having a feeling of devotion considering the fact that the deities are different from the deities in the Temples in South India. That was the reason why Hon'ble Mr. Justice K. L. Manjunath stopped visiting the temples since the year 2003. Therefore, they proceeded on the assumption that in view of the explanation, the newspaper report could not have been the basis of the application. From these materials they came to the conclusion that they perceived a concerted effort made by respondent No. 1 and their Advocates to see that the appeal is not heard by Hon'ble Mr. Justice K. L. Manjunath. Though they did not say anything, at that stage, about the persons involved in sending the envelope to the Judges hearing the appeal, they reiterated what transpired in the Court as recorded in the order dated 10.07.2009 and they found fault with A.5 and A.6 not filing the affidavits as directed by the Court and came to the conclusion that they have intentionally avoided filing their affidavits. Then they have observed that there are no reasons for Sri. S. Shaker Shetty and Sri. S. V. Srinivasan, Advocates, who have put in practice of about 50 years and 40 years as Advocates respectively to address such letters. They are the only two Advocates, who are disabled to appear in the Court of Hon'ble Mr. Justice K.L.Manjunath. There is no contra material placed so as to disbelieve the contents of the said two letters. Thereafter, they proceeded to hold that prima facie they believe that the 1st respondent and counsel for the 1st respondent have left no stone unturned to avoid the appeal being heard by Hon'ble Mr. Justice K. L. Manjunath. The filing of the application is like the proverbial last straw on the camel's back and a final attempt made by respondent No. 1 to somehow ensure that the matter is not heard by Hon'ble Mr. Justice K. L. Manjunath. Lengthy arguments was addressed on the application by the learned Senior Counsel for the 1st respondent and no attempt was made to withdraw the said application, even after Hon'ble Mr. Justice K. L. Manjunath clarifying in the open Court that he had already mentioned to the Hon'ble Chief Justice, that in view of the receipt of the envelope and its contents, he was not inclined to hear the appeal. It is nothing but a concerted effort made by respondent No. 1 and the learned counsel to ensure that the case is not heard by Hon'ble Mr. Justice K. L. Manjunath. In their view this is nothing but an aspect of "Bench hunting tactics" adopted by the 1st respondent to avoid Hon'ble Mr. Justice K. L. Manjunath from hearing the appeal which is nothing but "forum shopping" an ingenuity earlier adopted by the respondent No. 1 before the Mumbai High Court. This, in their considered view amounted to interference in the administration of Justice. Then they held that it is a fit case where suo motu contempt action has to be initiated against the 1st respondent, the Secretary of the 1st respondent, the President of respondent No.1, Sri. S.K.V. Chalapathi, Senior counsel, Sri. V. H. Ron, Sri. Ramesh Babu and Sri. S. A. Maruthi Prasad, Advocates. Thereafter, at para 71 they referred to the observations made by Hon'ble Mr. Justice C. R. Kumaraswamy and at para 75 they observed as under:
18. Consequently, when the order dated 15.09.2009 was placed before the Hon'ble Chief Justice on 20.10.2009, he ordered for initiation of suo motu contempt proceedings. This order dated 15.09.2009 was challenged by the respondents before the Hon'ble Supreme Court of India, which by its order dated 23.10.2009 granted permission to file SLP and thereafter passed the following order:
19. The High Court on 20.11.2009 initiated suo motu contempt proceedings on the basis of the order dated 15.09.2009. In particular, the observations found in paragraphs 68 and 69 of the order dated 15.09.2009, which in fact is extracted in the contempt petition, is also extracted here as under:
20. It is between these dates i.e., 20.10.2009 and 20.11.2009, the order of the Supreme Court came to be passed on 23.10.2009, virtually wiping out the aforesaid observations made in the order dated 15.09.2009.
Then, on consideration of the respective cases, it was held as under:
22. The Junior member of the Bench wrote a separate order and was in agreement with the Senior Judge in so far as, the proceedings that fall under Section 14 of the Contempt of Courts Act, 1971 and closing this contempt as against accused Nos.2 and 4. However, in his opinion, as against accused Nos.l, 3, 5 and 6, the proceedings have to go on in terms of the procedure contained under Section 14 of the Act. He was of the view that whether the imputation/accusation made against accused Nos.l, 3, 5 and 6 are true or not, it depends on the material and the defence that may be placed by the said accused and to deal with the correctness of the allegation in the order dated 15.09.2009 at this stage without any material to the contrary is not proper. Further he held that accusation of criminal contempt made against accused Nos. 1,3,5 and 6 in the course of the order by the learned Judges without considering the defence if any, the proceedings cannot be dropped or the said accused could be discharged as there is no material to the contrary on record.
37. Before answering the points that arise for consideration, it is necessary to take note of certain undisputed facts which emerge from record which have a bearing in deciding the case on merits.
40. If the learned Judge Hon'ble Mr. Justice K. L. Manjunath was not inclined to hear the appeal, all that he could have done was to pass an order to place the appeal for hearing before a Bench of which he is not a member. There was no reason for him to approach the Hon'ble Chief Justice with a request to post the matter before any other Bench. Similarly his request to the Hon'ble Chief Justice to permit him to hear the matter only to find out the persons who are behind in sending the courier to avoid his Bench was not warranted. If he was so curious, he could have directed the Registrar (Vigilance) to make such enquiry. Once he was not inclined to hear the appeal, he could not have heard the appeal for the aforesaid purpose. At any rate the appeal was not posted for the said purpose and the parties and their Counsel were not notified of the scope of enquiry that the learned Judge intended to undertake, as is clear from the order sheet or the cause list.
44. Again, LORD DENNING M. R. in the case of Reg v. Commissioner of Police of the Metropolis, Ex parte Blackburn (No.2)(l) has expressed his view in the following manner:
45. The persons who write letters criticising our conduct inside and outside the Court should remember that from the nature of our office, we cannot reply to their criticism. We cannot enter into public discussion. Their letters remain unanswered not because there is nothing to contradict but because of judicial discipline to refrain from sending any such reply. Therefore we ignore it.
52. Now, what is the effect of this order has to be considered. In paragraph 75 of the order dated 15.09.2009. the direction to the Registry was to post the contempt proceedings as well as the appeal before a Bench of which Hon'ble Mr. Justice K.L.Manjunath and Hon'ble Mrs. Justice B.V.Nagarathna are not members. It means that the said Bench was not inclined to hear the appeal nor the contempt proceedings and it has to go before another Bench. When the Apex Court held that they were not inclined to interfere with the order, as the matter has been sent to another Court for consideration, we have to remember that the said order is passed by the High Court on an application filed by the 1st respondent requesting Hon'ble Mr. Justice K.L.Manjunath to recuse himself. Though the said application was dismissed, ultimately, the appeal was sent to another Bench. That is the prayer they had sought for in the application, which in fact was granted even after dismissing the application. Therefore, the subject matter of the proceedings before the Apex Court was not the question "whether Hon'ble Mr. Justice K.L.Manjunath should recuse from hearing the appeal or not?". The subject matter of the appeal was "whether the Court was justified in directing initiation of contempt proceedings?".
58. Thereafter, the High Court Registry placed the matter before the Hon'ble Chief Justice for order to register a suo motu Contempt of Court Case (Criminal) against the respondents-accused and for posting the same for preliminary hearing. The Hon'ble Chief Justice passed the order as prayed for.
60. However, Hon'ble Mr. Justice Subash B. Adi, held as under:
Further it was held as under:
61. The learned Third Judge Hon'ble Mrs. Justice Manjula Chellur, after referring to Article 215 of the Constitution, Section 14 and Section 15 of the Act, held as under:
62. The said judgment of this Court is affirmed. So it is in this background, we are proceeding further.
66. The Parliament amended the Act anil substituted Section 13 by Contempt of Courts (Amendment) Act, 2006 by way of substitution which reads as under:-
67. Sections 14 and 15 of the Act of 1971, prescribe procedure for two different types of cases. Where Contempt of Court is committed in the presence of the Supreme Court or High Court, procedure prescribed in Section 14 has to be followed. In all other cases, procedure of Section 15 has to be followed. Proceedings under Sections 14 and 15 of the Act of 1971 contemplate two entirely different types of and mutually exclusive procedure.
69. Section 14 exclusively deals with the contempt committed in the face of the Supreme Court or the High Court, the procedure to be followed and the evidence to prove the charge of contempt. If the Court is of the view that any person is guilty of contempt committed in its presence or hearing, the said provision vests power in the Court to detain such person in custody. After such detention, either before rising of the Court, on the same day, or as early as possible thereafter, shall cause him to be informed in writing of the contempt with which he is charged and afford him an opportunity to make his defence to the charge. Thus, Section 14 of the Contempt of Courts Act contemplates issuance of notice and an opportunity to the contemnor to answer the charges levelled in the notice to satisfy the principles of natural justice. Where an incident amounting to contempt of Court takes place within the presence and sight of the Judges, the same amounts to contempt in the face of the Court and is required to be dealt with at the time of the incident itself. This is necessary for maintaining the dignity and majesty of the Courts. It is more so when the object is not merely to scandalise or humiliate the Judge, but to scandalise the institution itself and thereby lower the dignity and majesty of the institution in the eyes of the public. In other words, under sub-section (1) of Section 14, the Court will act as a Complainant, Prosecutor and the Judge. That is the procedure contemplated by the statute. Thereafter, the Court holds an enquiry and take such evidence as may be necessary or as may be offered by such person and after hearing him, proceed either forthwith or after adjournment to determine the matter of the charge; then, pass such order for the punishment or discharge of such person as may be just. This is the procedure prescribed which the Court has to follow if a contempt is committed in the face of the Supreme Court or High Court.
72. In the instant case, the contempt alleged against A. 1 is the words used in the affidavit filed in support of the application for lecusal. As the said application was presented before the Court and that affidavit contained foe words accusing bias of Hon'ble Mr. Justice K.L. Manjunath, it is alleged that it amounts to committing contempt in the face of the High Court. If the Judges on entertaining the said application felt as such, A.l should have been toned in custody and pending determination of the charges, he could have been re-based him on bail as provided in sub-section (4) of Section 14 of the Act. Thereafter inform him in writing, of the contempt with which he is charged and afford him an opportunity to make his defence to the charge. Then they should have taken such evidence as may lie necessary or as may be offered by A.1. After hearing the matter, they could have decided whether the charge is proved or not and accordingly punished A.l or discharge him. Admittedly, the Court did not follow this procedure.
Explanation.-In this section, the expression "Advocate-General" means-
76. Sub-section (1) of Section 15 empowers the Supreme Court or the High Court to take action on its own motion in respect of a contempt other than referred to in Section 14. Sub-section (3) of Section 15 mandates that every motion under this Section shall specify the contempt of which the person charged is alleged to be guilty. When the contempt is on the face of the Court, then it is very essential for that Court to follow the procedure as prescribed in Section 14 of the Act. But for any reason if the concerned Court does not proceed in accordance with Section 14 of the Act and refers the matter to the Hon'ble Chief Justice of the High Court informing about the alleged contempt, then in that event, it is always open and within the powers of the High Court to take suo motu cognizance of the same and proceed against the alleged contemnor in accordance with the procedure as laid down under Section 15 of the Act. The High Court can deal with contempt summarily and adopt its own procedure. All that is required is that the procedure is fair and the contemnor is made aware of the charge against him and is given a fair and reasonable opportunity to defend himself. Section 15 of the Act prescribes procedure for cases not covered by Section 14 of the Act. Court is not bound by the procedure laid down by the Code of Criminal Procedure. It can have its procedure. Even Evidence Act has no play in the matter of procedure. Even though the provisions of the Code of Criminal Procedure do not apply, yet, the degree of proof is the same. Benefit of reasonable doubt must go to the alleged contemnor. Contempt proceedings are summary proceedings. In a criminal case the accused has the benefit of presumption of innocence and an opportunity of demolishing the prosecution case without exposing himself to cross-examination. In cases of criminal contempt, the standard of proof has to be that of criminal case, i.e., charge has to be established beyond reasonable doubt. A person should not be convicted unless his conviction is essential in the interests of justice. Accordingly, the proceedings in the instant case is held keeping in mind the aforesaid principles and in terms of Section 15 of the Act.
81. In a separate order passed by Hon'ble Mr. Justice K. L. Manjunath on 15.09.2005 regarding this news item, he has stated as under:
82. Further, the order dated 10.07.2009 also discloses that on Sri. S. A. Maruthi Prasai upon being interrogated in the presence of the learned Senior Counsel appearing for parties, what transpired is stated as under:
83. However, in the additional affidavit and the rejoinder dated 30.07.2009, at paragraph 4, the first respondent has sworn to the fact that he, through Sri. S.A. Maruthi Prasad, Advocate had sent invitation to only two Hon'ble Judges of this Court, namely Hon'ble Mr. Justice K.L. Manjunath and Hon'ble Mr. Justice Chandrashekaraiah, a former Judge of this Court. He has further sworn to as under:
84. Therefore from these undisputed facts, it is clear that Hon'ble Mr. Justice K. L. Manjunath has visited the first respondent temple as a devotee from the year 1998 till 2003. He was elevated to the Bench in the year 2000. Thereafter, invitation has been sent by the first respondent through the former junior of Justice K. L. Manjunath, namely Sri. S. A. Maruthi Prasad, not only to him but also to another Judge who has since retired. It is not a case where, a Judge was invited to a temple and during such visit he was honoured and he was presented with a memento, a photo of the deity and a Shawl. On the contrary, it is a case where a devotee of the temple who had become a Judge of the High Court was invited through his former junior colleague to visit the temple as a devotee. In the year 2003, when he visited the temple, there was a litigation pending in the Civil Court between two factions. The first respondent is the person who was in-charge of the temple who sent invitation and who honoured the Judge/devotee, when he came to the temple. The suit which was pending ended in favour of the first respondent. As is clear from the writing sent along with the photograph, what is stated therein is about the close association of Hon'ble Mr. Justice K.L. Manjunath and receiving gifts at the premises of ISKCON, Bangalore. Further it says that:
Is it morally and ethically right? was the question put.
89. From the aforesaid paragraphs in the affidavit, what emerges is, Hon'ble Mr. Justice K.L. Manjunath is accused of likelihood of bias. The language employed is that the first respondent is having reasonable apprehension that Hon'ble Mr. Justice K. L. Manjunath is biased against the first accused. The learned Judge is predisposed and having prejudice as stated above. The first respondent reasonably apprehended that a real likelihood of bias attributable to Hon'ble Mr. Justice K.L. Manjunath will operate against the 1st respondent affecting a fair assessment of the merits of the case in the final decision of this Hon'ble Court in the First Appeal. Therefore, he was requested to recuse himself from the Bench hearing the appeal. The said imputations do not relate to lack of integrity or oblique motives. No dishonesty is imputed. No harsh words are used. It was not intended to insult the learned Judge. The Court or the Judge was not scandalized. No disparaging statements regarding the character or derogatory to the dignity of the Judge were made. Since the learned Judge in the open Court expressed the opinion that contents in the cover with the photographs is 'blackmail tactics' adopted by the persons who are involved, to avoid this Bench and what has happened to him in this appeal shall not happen to other Brother/Sister Judges, who have visited the temple as devotees. Further, he has stated that he used to visit the temple as a devotee till 2003 and stopped thereafter due to several doubts and the same should not happen to the innocent devotees visiting the temple and that he is not getting devotion considering the appearance of the statue of the deity. He made it clear that when the photograph is taken by ISKCON, Bangalore in 2003, it is for them to explain how this could be sent in the name of the opposite party and they were directed to file an affidavit giving explanation. These statements taken as a whole, would normally give an impression to a right minded person that the learned Judge is angry and there was a real likelihood of bias on the part of the Judge, as those words amount to pointing the needle of suspicion to the first respondent. When the learned Judge says that what has happened to him should not happen to others, it is clear that he wants to take action, thus preventing the repetition of such acts. When the said utterances of the learned Judge in the open Court were widely published in all the news papers, general public came to know what the learned Judge said about the first respondent. The affidavit further discloses that after the publication of the news in the news papers, the first respondent started getting phone calls from devotees all over the world enquiring as to what happened. They all felt that the reputation of the temple and the deity is seriously damaged. It is in this context the first respondent perhaps entertained apprehension about what the learned Judge might do in the case, and brought to the notice of the learned Judge by way of an affidavit, their apprehension, their understanding of the situation and requested him to recuse himself from the Bench hearing the appeal.
FRANKFURTER, J, in Public Utilities Commission of the District of Columbia v. Poliak, (1951) 343 US 451 at Pg. 466 has held thus:
The Apex Court in the case of Mank Lal v. Dr. Prem Chand Singhvi & others, reported in AIR 1957 SC 425, explained the meaning of the word 'bias' as under:
The Apex Court in the case of A. K. Kraipak & others v. Union of India and others, reported in AIR 1970 SC 150, held as under:
Again in the case of Bhajanlal, Chief Minister, Haryana v. Jindal Strips Limited & others, reported in (1994) 6 SCC 19:(1994 AIR SCW 3905) dealing with 'bias', the Supreme Court has held as under:
The Apex Court in the case of P. K. Gosh, IAS v. J. G. Rajput, reported in (1995) 6 SCC 744: (AIR 1996 SC 513), held as under:
The Supreme Court in the case of Chetak Constructions Ltd. v. Om Prakash, reported in (1998) 4 SCC 577 : (AIR 1998 SC 1588), held as under:
This Court after referring to the aforesaid judgments in the case of M/s. National Technological Institutions (NTI) Housing Co-operative Society Ltd., and others v. The Principal Secretary to the Government of Karnataka, Revenue Department and others, reported in ILR 2012 KAR 3431 : (2012 (4) AIR Kar R 821), at paragraph 39, held as under:
Bias may be generally defined as partiality or preference. Frank J., In Linahan, Re (1943) 138 F 2nd 650, 652, observed thus:
92. Bias is a condition of mind which sways the judgment and renders the Judge unable to exercise impartiality in a particular case. Bias is likely to operate in a subtle manner. A prejudice against a party also amounts to bias. Reason cannot control the subconscious influence of feelings of which it is unaware. When there is ground for believing that such subconscious feelings may operate in the ultimate judgment or may not unfairly lead others to believe they are operating, Judges ought to recuse themselves. It is difficult to prove the state of mind of a person. Therefore, what we have to see is whether there is reasonable ground for believing that a person was likely to have been biased. A mere suspicion of bias is not sufficient. There must be a reasonable likelihood of bias. In deciding the question of bias, we have to take into consideration human probabilities and ordinary course of human conduct. The Court looks at the impression which would be given to an ordinary prudent man. Even if he was as impartial as could be, nevertheless if right minded person would think that in the circumstances there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand. For appreciating a case of personal bias or bias to the subject-matter, the test is whether there was a real likelihood of bias even though\such bias has not in fact taken place. A real likelihood of bias presupposes at least substantial possibility of bias. The Court will have to judge the matter as a reasonable man would judge of any matter in the conduct of his own business. Whether there was a real likelihood of bias, depends not upon what actually was done but upon what might appear to be done. Whether a reasonable intelligent man fully apprised of all circumstances would feel a serious apprehension of bias. The test always is, and must be whether a litigant could reasonably apprehend that a bias attributable to a Judge might have operated against him in the final decision.
95. We are of the view that the word "blackmail" used in this context is inappropriate. Blackmail has been defined in the broad sense to mean compelling someone to act against their will for gaining or attempting to gain something of value or compelling another to act against such person's will by threatening to communicate accusations or statements about any persons that would subject such persons or any other person to public ridicule, contempt or degradation.
98. Courts vary on interpreting what something of value includes; but it is not necessarily a money payment in all cases. Therefore, 'blackmail' presupposes that the information is usually substantially true having harmful implications. If it is said that somebody is blackmailing, then, the identity of the blackmailer should be usually known to the person who is blackmailed. The information which the blackmailer wants to expose should be true. If so exposed, it would be harmful to the blackmailed. From the material on record, when it is said that it is not known to the learned Judge who actually sent the cover with the aforesaid writing, the use of the said word has given rise to apprehension in the mind of the 1st respondent.
101. Therefore the said addressee shown is none other than disciples of the 4th appellant in this case. Therefore, if the learned Judges were interested in knowing who sent this cover with those contents, in the normal course they should have called upon the 4th appellant to have his say in the matter. However, the 4th appellant was neither questioned nor called upon to file any affidavit stating whether the said cover emanated from him. On the contrary, the learned Judges proceeded on the basis that when the photograph is taken by ISKCON, Bangalore in 2003, it is for them to explain how this could be sent in the name of the opposite party. Therefore both the parties were directed to file affidavits giving explanation.
103. 4th Appellant has not filed any affidavit. From the affidavit filed on behalf of the first respondent, only two Judges of the High Court of Karnataka have visited the temple, i.e., Hon'ble Mr. Justice K.L. Manjunath and Justice Chandrashekaraiah. The invitation was sent to them only through A.6-Maruthi Prasad, erstwhile junior colleague of Hon'ble Mr. Justice K.L. Manjunath. Therefore, no other Judge is a devotee of the temple, much less they are invited to the temple. Therefore, the apprehension that such incidents may re-occur and therefore the other Brother and Sister Judges have to be insulated from such future attacks, is a misconception and certainly that cannot be the reason for holding any such enquiry.
106. Further, in a separate order dated 15th September, 2009, he has given reasons for his stopping visiting ISKCON temple from 2003. According to him, on 10.07.2009, he made it clear that he stopped visiting ISKCON temple since he was not getting devotion considering the appearance of the statue of the deity and not for any other reason. He has stated as under:
107. The incident having been widely reported in almost all the newspapers and consequently, when the first respondent received phone calls from the devotees from various parts of the country regarding the statements, they were worried that the said statements have seriously and immensely tarnished the reputation and prestige of the first respondent institution.
110. True to their standing at the Bar, both the learned Senior Counsel submitted that their respective clients have full faith and confidence in the Court. That should have assuaged the Wing of hurt and Hon'ble Mr. Justice K. L. Manjunath should have recused himself from ring the appeal as conveyed to the Hon'ble Chief Justice earlier or he should have heard the appeal on merits.
112. Therefore, Hon'ble Mr. Justice K. L. Manjunath was of the view that Sri. S. K. V. Chalapathy knew the contents of the letter even before it was made known to him. Such an impression is not recorded in his earlier order made immediately after the submission of Sri. S.K.V. Chalapathy. Though, we do not know what is the truth, the variation in the perception indicates that the learned Judge was of the view that Sri. S.K.V. Chalapathy knew the contents of the cover and the letter. Such an inference in his mind is at best an assumption. Senior Counsels with vast, varied experience and with a number of years' practice, are accustomed to such mischief being done in the course of hearing of a case. Their experience tells them that it is not worth knowing the contents of such letter. Therefore, when they make a submission to ignore such letter and hear the matter as they have confidence in the Judge, attributing motives to them may not be proper.
114. Dealing with this issue, the learned third Judge, Hon'ble Mrs. Justice Manjula Chellur in her order dated 27th December, 2010 has held as under:
115. From the aforesaid observations, it is clear that Mr. Paikedey who argued the application for recusal has denied making any submission in the open Court on the basis of any instruction issued by Sri. S.K.V. Chalapathy. Sri. S.K.V. Chalapathy also has denied the said fact and has offered his explanation for his presence in Court at the time of hearing the said application. Acting on the letter of Sri. Paikeday, the learned Senior Counsel, the learned third Judge held that Sri. S.K.V. Chalapathy has not committed any contempt in the face of the Court. Therefore, it shows hat the said observation by Hon'ble Mr. Justice K.L. Manjunath is inappropriate.
118. Therefore, being a Junior Member of the Bench, when he was not inclined to proceed with the enquiry and he did not want to be party to any further order, he requested that the appeal be posted before a Bench of which he is not a member. This conduct of the Judge cannot be questioned nor commented upon. A Judge cannot be made to go against his own conscience. He has every right to have his own opinion. In a Bench of two Judges, if there is any disagreement, the law provides for referring the said disputed question to a third Judge. Instead of referring the said disagreement to a third Judge, as Hon'ble Mr. Justice C.R. Kumaraswamy wanted to recuse himself, again another Division Bench headed by Hon'ble Mr. Justice K.L. Manjunath was constituted. The said Bench, in the order dated 15.09.2009 at para 71 held as under :
119. They accepted the view of Hon'ble Mr. Justice K. L. Manjunath and disagreed with the view expressed by Justice Hon'ble Mr. C.R. Kumaraswamy. Having said that, in a separate order dated 15.09.2009 of Hon'ble Mr. Justice K.L. Manjunath, it is observed as under at Page 92:
120. After the order dated 15.09.2009, the High Court initiated suo motu contempt proceedings in compliance with the said order after obtaining the permission of the Hon'ble Chief Justice. When the matter was placed before the Bench consisting of Hon'ble Mr. Justice K. Sreedhar Rao and Hon'ble Mr. Justice Subhash B. Adi. Hon'ble Justice Mr. K. Sreedhar Rao held that the conduct of A.1 in filing the application for recusal cannot be construed as scandalous act, the language used in the affidavits is polite and courteous and no disparaging language is used in narrating the facts. The conduct of A.1 in filing the recusal application and its contents appears to be bonafide. There is absolutely no material against A.1, A.3 to A.6 to hold them liable for contempt much less against A.2. Therefore he ordered for dropping of contempt proceedings against A.l to A.6.
128. The Apex Court in the case of Perspective Publications (P) Ltd. v. State of Maharashtra, reported in AIR 1971 SC 221 has held as under:
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 course of justice or the proper administration of law by his court. It is only in the latter case that it will be punishable as Contempt.
129. Following the said judgment and after referring to several other judgments of the Apex Court, this Court in the case of Sri. Phaniraj Kashyap v. S. R. Ramakrishna & others, reported in ILR 2011 KAR 2347 : (2011 (2) AIR Kar R 593), held as under:
130. The Apex Court in the case of Charan Lai Sahu v. Union of India and another, reported in (1988) 3 SCC 255 : (AIR 1988 SC 107) dealing with a petition filed by an experienced advocate of the Apex Court by way of a public interest litigation when it was couched in unsavoury language and an intentional attempt was made to indulge in mudslinging against the advocates, the Supreme Court and other constitutional institutions, as many of the allegations made by him were likely to lower the prestige of the Supreme Court and it was also alleged that the Supreme Court had become a constitutional liability without having control over the illegal acts of the Government, held that the pleadings in the writ petition gave the impression that they were clearly intended to denigrate the Supreme Court in the esteem of the people of India. In the facts of the case, the petitioner therein was prima facie held to be guilty of contempt of Court.
156. This admission clearly demonstrates that C.W.3 was approached to give his opinion, when the suit was pending before the trial Court. He has given written opinion and he still continues to be in possession of the four books, which were handed over to him for study before giving opinion. The persons who approached him are having a temple in Kumara Park West, which is a parallel organisation to ISKCON, Bangalore. As is clear from the said statement of facts, if he has already been approached by persons, who are running a parallel organisation to ISKCON, Bangalore and have established a temple in Kumara Park West, the question of C.W.3 appearing for ISKCON, Bangalore would not arise. If he had appeared, it would have amounted to professional misconduct. Sri.Shekhar Shetty is not a designated Senior counsel. By virtue of number of years in practice, he is respected as a Senior Counsel, which is why he had direct contact with the parties. The parties handed over four books for study, obtained written opinion and paid him his fees. Whether the appeal was listed before the Bench headed by Justice K.L. Manjunath or before any other Bench, he was precluded from appearing for ISKCON, Bangalore. It is in this background, we have to appreciate his evidence. If two months prior to Ex.C4, A.5 had approached and requested C.W-3 to appear along with him as stated earlier on that day, that was roughly during vacation, the appeal would not have been listed before the Bench headed by Hon'ble Mr. Justice K. L. Manjunath. In fact the material on record discloses that before summer vacation, the appeal was listed for consideration before Hon'ble Mr. Justice K.Sreedhar Rao and Hon'ble Mr. Justice B. Sreenivase Gowda. On the face of it, this statement of C.W.3 does not carry any weight.
158. Therefore, when he did not have any inclination that the object of engaging him is to avoid the Bench headed by Hon'ble Mr. Justice K. L. Manjunath, we do not see any justification for him to address a letter like Ex.C4 bringing to the notice of the Court, the true facts as a member of the Bangalore Bar. As is clear from the evidence, he did not send that letter to the companion Judge nor he sent that letter to the Hon'ble Chief Justice, President of the Advocates Association, Chairman of the Bar Council. But he chose to send the same to the Judge only, Hon'ble Mr. Justice K. L. Manjunath, who was his erstwhile Junior colleague. The caption of the letter "To whomsoever it may concern" makes no sense. After writing the letter he made sure that the said letter reaches Hon'ble Mr. Justice K. L. Manjunath. Therefore, he handed over the letter to his clerk, who in turn handed over the same to the P.A. of Hon'ble Mr. Justice K. L. Manjunath in the office cover. The letter is written on 24.07.2009 and it was sent on 24.07.2009. This conduct of C.W.3 is un-understandable and probably he is not disclosing the true facts. He is not stating why he took this un-usual extreme step of writing the letter Ex.C4 with the contents. If this letter has come in the way of Hon'ble Mr. Justice K. L. Manjunath hearing the appeal, it is the letter and its author, who should be held responsible for interfering with administration of justice. Even if A.5 made a request to C.W.3, when C.W.3 declined the request and he did not appear so as to disable Hon'ble Mr. Justice K. L. Manjunath from hearing the appeal, that act has in no way interfered with the administration of justice. Even without A.5 approaching C.W.3, he could not have appeared in the case for the first respondent, as he has given his written opinion to the appellant in the very same case and the case papers still remained with him and he had been paid professional charges by way of cheque. The only inference that flows from such conduct, i.e, writing of Ex.C4, is to prejudice the mind of the learned Judge insofar as the first respondent and his Counsel are concerned. In fact, as is clear from the material on record even before Ex.C4 came into existence, the learned Judge had made up his mind not to hear the appeal. Therefore reasons mentioned in Ex.C4, even if true, in no way could have come in the way of or interfered with the learned Judge hearing the appeal on merits.
160. C.W3 is fully aware of this provision. In his evidence he has stated as under:-
161. C.W3 addresses the letter "TO WHOMSOEVER IT MAY CONCERN", but ensured that his clerk hands over the letter to the P.A. of the learned Judge. A subtle way of getting over the prohibition in law. The reason behind such letter according to him is as under :-
162. The erstwhile Senior of the learned Judge has not measured up to the aforesaid standards of professional conduct and etiquette. It was improper on his part to have addressed the letter in a pending case in which one of the parties had consulted him, taken his written opinion and paid his legal fee and still they have not collected the four paper books of the case which they had given him for study. The learned Judge also could not have taken note of this private communication relating to an appeal which was pending before him, as such private communication is forbidden.
174. From the said note, it is clear that A.6 has not filed Vakalath in R.F.A. No.421/2009. In other words, he was not appearing for any party in the said appeal.
177. He has deposed that A.6 whose name he has mentioned in the letter approached him with a request to appear on behalf of ISKCON, Bangalore, the 1st respondent in R.F.A. No.421/2009. He declined to appear in the said case because Hon'ble Mr. Justice K.L. Manjunath had asked him not to appear in any case before him. His reaction to such a request was that he would not appear before Hon'ble Mr. Justice K.L.Manjunath. Beyond that nothing transpired between him and A.6.
179. As on 27.03.2003 he had put in more than 30 years of practice as an Advocate. In his entire career, before he affixed his signature to any memo or any writing, he would read it and then affix his signature. He has denied the suggestion that he knew A.1 earlier and therefore, he filed Ex.D2 and to wriggle out of the situation he is deposing falsely before the Court. He does not remember whether he has filed Vakalath in pursuance of the said memo in the said case on behalf of anybody. He also does not know whether A.6 appeared for A.l in the said suit. He admits that Hon'ble Mr. Justice K. L. Manjunath had his office at premises No. 105, 2nd floor, 3rd Cross, Gandhinagar, Bangalore - 560 009. He continues to be there even now and he is not paying any rent for occupying the said office to any person. His colleague Sri. H. A. Kumaraswamy, Advocate takes care of such aspects. The said H. A. Kumaraswamy, is in their office since the time of Hon'ble Mr. Justice K. L. Manjunath. He has denied the suggestion that A.6 did not approach him with a request to appear for ISKCON in R.F.A. No.421/2009.
184. The erstwhile colleague of the learned Judge has not measured up to the aforesaid standards of professional conduct and etiquette. It was improper on his part to have addressed the letter in a pending case, when he undertook to file memo of appearance in the connected suit, in which his two junior colleagues had filed power. The learned Judge also could not have taken note of this private communication relating to an appeal which was pending before him, as such private communication is forbidden.