Speaking truth as crime.

Text of my application in my tryst of fight with corruption in Judiciary;

IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH.

Crl Misc 32489 of 2017

In CROCP 1 of 2012.

Court of its own Motion
Versus
Kapil Dev Aggarwal, Advocate.                                        

                                 

Application u/s 482 CRPC for placing documents on record.

Respectfully Showeth;

1.      That truth is allowed as a defense u/s 13 of Contempt’s of Court Act. Respondent is pleading truth as defense for which an application shall be filed at the appropriate stage of charge. The matter is still at pre-charge consideration.

2.      That there are five fold submissions at pre-charge consideration.

a)      Whether matter can proceed further in view of concealment of material facts by J. Surya Kant as now given in reply? The facts in connection with reminding him his oath are more particularly detailed in paras 1, 2 11, 22 (date 6.4.2011), 23, 23, 24, 25 and Annexures R-1 to R-10 of the reply. Link.

b)     Whether matter can proceed further in view of multiple counts of false evidence given by J. Surya Kant in his statement to Hon’ble Chief Justice? Gist of false evidence given by J. Surya Kant is given in Annexure R-46.  Link.

c)     Whether statement of Judge Surya Kant is without Jurisdiction having been made in CA 167/2011 which was for seeking his recusal? The said application seeking his recusal was filed under orders of the then Hon’ble Chief Justice?

d)     Whether reminding a Judge his oath; Scandalises, prejudices or interferes in the working of Hon’ble High Court.

e)      Whether matter can proceed further in view of bar created by Section 13 (1) of contempt’s of Courts Act which states;-

“no court shall impose a sentence under this Act for a contempt of Court unless it is satisfied that the contempt is of such a nature that it Substantially interferes, or tends to substantially to interfere with the due course of justice.”

        

Case was not pending when Judge Surya Kant was reminded his oath. Hence question of substantial interference with due course of Justice does not arise.

3.      Respondent vide his letter Dt 1.1.10 (Annexure R-5) had written that only way a Judge favors a party or an advocate is by violation of legal procedure, amendment / concealment of facts & Statute in the Judgment. There can never be any independent witness to prove any ‘dealings/relations’ between Judge and party / advocate. Respondent in his letter Dt 1.1.10 had written that such a conduct of judge should be treated as Judicial misconduct. Judge Surya Kant violated his oath while deciding CWP 10434/10 by multiple amendments and concealment of facts, multiple amendments and concealment of statute, multiple violations of procedure of laws and even replacement of order as detailed in paras 1, 2 11, 22(date 6.4.2011), 23, 23, 24, 25 of reply and Annexures R-1 to R-10. All of this was done out of favor and affection for kith and kin of a judge. Judge Surya Kant violated his ‘oath’ under which he had undertaken not to pass any order out of favor and affection. Respondent could not neglect to follow his own advice. Respondent reminded Judge Surya Kant his oath vide letter dt 4.6.2011. A complaint was simultaneously made to the Hon’ble Chief Justice by letter of even date. A complaint was also made to Hon’ble the chief Justice of India vide letter Dated 3.9.2011 Annexure R-28. Letter dt 19.9.2011 received from Hon’ble Supreme court of India is on record Annexure R-7. Affidavit was also filed.

4.      That the letter was just to remind Judge Surya Kant his ‘oath’, but even informing the judge that he has deviated from his sworn duty was in performance of duty of an advocate under Advocates Act. A single judge of Karnataka High Court while interpreting the duties and responsibilities of an advocate has stated that while making complaints against judges, the advocates should also boldly inform the concerned judge. The relevant text is reproduced in Para 13 of reply and is reproduced herein again for ready reference;

“The first persons who come to know that a judge is not conducting properly while functioning on the judicial side are the lawyers who are appearing in the case the moment an order is passed by the Judge in the court hall”

“It is the duty and the responsibility of the members of the Bar to ensure that the judiciary not only remains fiercely independent, upright, effective and useful for the people of the country, but also that the members of the judiciary do not go astray, do not deviate from their duties and responsibilities, do not misuse or abuse their powers and achieve this objective by boldly and openly bringing to the notice of the judge himself/ herself, if there are such instances or signs of deviations. (Emphasis supplied). This is a very onerous responsibility bestowed on the members of the Bar in our legal system and unless the lawyers fulfill this obligation towards the society, they will be failing in their professional duty!“ (Emphasis supplied).

5.      The duty and responsibilities of lawyers which the Hon’ble Judge was interpreting is mentioned in Rule 1 (1) of the professional conduct of advocates framed by Bar Council of India in exercise of powers under section 7 and 49 of Advocates Act;-

“RULES OF AN ADVOCATE’S DUTY TOWARDS THE COURT

1. An advocate shall, during the presentation of his case and while otherwise acting before a court, conduct himself with dignity and self-respect. He shall not be servile and, whenever there is proper ground for serious complaint against a judicial officer, it shall be his right and duty to submit his grievance to proper authorities.”

It is indeed a moot point as to how many advocates have performed their duty to this court. Someone always has to be the first. We have to draw a line at wrongdoing and take a stand against it. It’s also our divine imperative and moral responsibility apart from statutory duty.

6.      Respondent reminded Judge Surya Kant his oath after taking copy thereof under RTI. No judge can or should treat his own oath as a crime. No one forced a judge to take ‘oath’. If his ‘oath’ is not a crime, reminding it, is also not a crime. Relevant Laws on complaints against delinquent judges is sought to be placed on record as Annexure R-29-31, 6. After my instant complaint to hon’ble Chief Justice of this Court, The securitization matters were shifted from single bench to division bench Annexure 36. Several other letters by Respondent after which reforms happened are mentioned in para 15 of the reply. Letters do have positive effect if seen by honest and upright people.

7.      CA 580/11 is regarding payment being made by D P Ojha in name of fictitious security guards. Information was received about connivance of D P Ojha with others, hence request was made to Hon’ble the chief Justice to list CA 580/11 before Judge other than J Surya Kant on which the Hon’ble the Chief Justice ordered;-

“If any change is required, matter may be mentioned before the Judge” SD/ H’ Chief Justice.

In absence of any mechanism to record verbal submissions made in court, hence out of abundant caution a written application being CA 657/11 was filed seeking recusal of Judge Suryakant from hearing the matter. The order of Hon’ble Chief Justice was brought to his notice. The application for recusal can either be allowed and Judge recuses himself from the case and thereafter he would have no jurisdiction to pass any other statement or order, or Judge can dismiss application for recusal but then before making any other statement or order, judicial prudence demands that the Judge has to give time to applicant to file appeal. Thus in an application for recusal, a Judge has no jurisdiction to pass or make any statement except on merits of application for recusal, which was not done. The present statement has been made in CA 657/11 without first dealing with application for recusal on merits and hence is without Jurisdiction.

8.      Government of India, Ministry of corporate affairs considers respondent as an expert in corporate laws and matters relating official liquidators. Government of India had even sought his suggestions on the working papers for liquidator’s manual. Annexure R-39. Respondent was involved in exposing corruption by D P Ojha official liquidator attached to this court through Company Judge. Judge Surya Kant did not make any statement for criminal contempt on 4.6.2011 when respondent sent him his oath. He made the present statement in January 2012 when he became Company Judge. Annexure R-41. Records reveal,

a)      Thefts in companies in liquidation took place only when Judge Surya Kant was company Judge. Annexure R-40 and R-41. U/S 456(2) custody of assets of Companies in liquidation vest with Hon’ble high Court and whatever happens to assets or to Companies under liquidation is done under orders and control of Company Judge.  Annexure R-42.

b)     Judge Surya Kant approved the payments to security agencies in contravention of norms to ghost / fictitious employees. Norms required Identity proofs of security guards to be submitted to official Liquidator attached with this Court. Judge Surya Kant approved the payments without ID proofs thereby violating the norms.

c)      Sale of land were done and approved by Judge Surya kant on the basis of valuation which did not mention collectorate rate (an exception was valuation done by NITCON a govt agency).

9.      The opinion of public on present day judiciary can be inferred from public comments online edition Times of India on a statement of the then Chief Justice of India which were brought to his notice vide letter Dt 5.12.2016. Annexure R-45. link Matter is being contested on merits so that honest and upright judge in performance of his public duty may take action against the black sheep whose conduct is affecting image of other judges. Even Chief Justice(retd) B K Roy had written a letter DT 6.5.2005 implying that Judge Surya Kant had ante dated orders on judicial files. Annexure R-44 The said case CWP 6916 of 2004 Neeraj Sharma versus UOI involved kith and kin of a Judge. Even in this case in CM 5153/11, J. Surya Kant issued notice for 5.5.2011. As per his orders case was also listed on 5.5.2011 in CR 19 Annexure R-37, The order of ‘notice’ in CM 5153/11 for 5.5.2011 is no longer on file. Record now shows dismissal order of CM 5153/11 Dt 8.4.2011 Annexure R-10. CM 5153/11 was never listed on 8.4.2011. Annexure R-38.

10.    The documents sought to be placed on record are as under;

a)      Annexure R-28; Copy of complaint Dt 3.9.2011 to Hon’ble the Chief Justice of India.

b)     Laws relating to rights, duties, responsibilities of making complaints against delinquent judges.

         i)       Under advocates Act Annexure R-29

ii)      Under Judges Protection Act Annexure R-30

iii)     Hon’ble supreme Court of India In-house mechanism, letter by Central Government Dt 27.4.2012 Annexure R-31

iv)     Letter By Ministry of Law Dated 27.5.2011 already on record as Annexure R-6

c)      Annexure R-32; letter No 662/APIO/HC Dt 26.04.2012 from Hon’ble High Court (relevant to para 2 of reference)

d)     Annexure R-33; letter No 544/APIO/HC Dt 04.04.2012 from Hon’ble High Court (relevant to para 8 of reference).

e)      Annexure R-34; Letter No 6555 DT 3.2.2011 from DP Ojha official Liquidator

f)      Annexure R-35; Copy of order of this Court Dt 4.9.2012 in IO in CP 196/1997.

g)     Annexure R-36; letter No 839/APIO/HC Dt 16.05.2012 from Hon’ble High Court

h)     Annexure R-37; Copy of certified copy of cause list of CR No 19 dated 05.05.2011.

i)       Annexure R-38 copy of certified copy of cause list of Judge Surya Kant Dt 8.4.2011.

j)      Annexure R-39; Copy of letter Dt 10.4.2012 from Government of India, Ministry of Corporate.

k)      Annexure R-40; Copy of letter No 3003 Dated 21.9.2015 from official liquidator of attached to this court

l)       Annexure R-41; copy of letter No 672/PIO/HC Dated 6.10.2015

m)     Annexure R-42; copy of notings made by Reader Company branch dated 9.11.2009,

n)     Annexure R-43; copy of letter Dt 1.11.2014 regarding habitual obstruction of administration of justice by Judge Surya Kant.

o)      Annexure R-44; Copy of complaint Dated may 6, 2005 by the then Hon’ble Chief Justice B K Roy against Judge Surya Kant for tempering / anti dating judicial orders.

p)     Annexure R-45; Copy of letter Dt 5.12.2016 to H Chief Justice of India referring him online comments on Times of India.

q)     Annexure R-46; summary of false evidence given by Judge Surya Kant in present reference.

Case is still at same stage when reply was filed. It is therefore prayed that, In the interest of justice, Photostat copies of documents / annexures R-28 to R-46 be taken on record.

Chandigarh                Kapil Dev Aggarwal

Date; 3.9.2017          Counsel for respondent