2014 Supreme(SC) 391

SUPREME COURT OF INDIA
K.S. Radhakrishnan, Jagdish Singh Khehar, JJ.
Subrata Roy Sahara – Petitioner
Versus
Union of India and others – Respondents
WRIT PETITION (CRIMINAL) NO. 57 OF 2014
Decided On : 6-05-2014

IMPORTANT POINTS
Provisions of CPC per se inapplicable to proceedings under the SEBI Act.
A judicial order cannot be assailed by filing writ petition.
When a court of competent jurisdiction passes an order of imprisonment, it cannot be assailed by petition for writ of habeas corpus.
In absence of a lis, question of bias does not arise.

Headnote:(a) Administration of Justice – Judicial Propriety – Court craft – Constitution of India – Article 137 – Counsel for petitioner suggesting the Bench to recuse from the case so as not to embarrass the Bar or the Bench – Hon’ble CJI making a conscious determination and constituting the Bench – Pleadings not disclosing anything which could be assumed, as would humiliate or discomfort the Judges by putting them to shame – Correction of a wrong order, would never put anyone to shame – An order actuated by personal or extraneous consideration would give rise to embarrassment – Pleadings not making any such allegation – Counsel for petitioner alleging apprehension of prejudice but not giving any reasons – Alleging the order being ‘draconian’ and violating civil liberties of the petitioner – Not demonstrating “bias” – Petitioner’s counsel, by his posturing antics aiming at bench-hunting or bench-hopping or bench-avoiding – Not allowed – Affronts, jibes and carefully and consciously planned snubs could not deter the Bench from discharging their onerous responsibility – The decision under challenge had taken about three months’ time of the Bench – Sending the matter to any other Bench would require similar time for the new Bench to understand the controversy – Is it the reason for prayer of recusal? – Such practice deprecated – Prayer for recusal rejected. (Para 6, 7, 8, 9, 11, 14)

       (2002) 4 SCC 388; (2009) 8 SCC 106 – Relied upon

       (1988) 2 SCC 602 – Referred

       (b) Constitution of India – Articles 215, 129 and 142 – Supreme Court has all powers, including those of original jurisdiction, of a Superior Court – Its orders passed under Article 142 are enforceable throughout the country – Under Article 129 Supreme Court can enforce compliance if its directions – Supreme Court has the jurisdiction and power, to punish for its contempt – It should be clearly understood that Supreme Court has the unlimited power (in fact, the sacred obligation), to compel obedience and observance of its orders (Para 18, 19)

       AIR 1967 SC 1; (2009) 2 SCC 164; (2012) 1 SCC 273 – Relied upon

       (c) Constitution of India – Article 129 – Hearing of Civil Appeals spreading over 35 dates – Petitioners not complying with orders – Neither furnishing required details nor refunding/depositing money with SEBI – Merely raising technicalities one after another to stall the issues – Contempt order passed on 31.8.2012 – On 04.03.2014 petitioners sent to custody – Petitioners’ counsel terming the order as draconian and alleging and violative of civil rights of petitioners under Article 21 – Alleging denial of opportunity to petitioners – Seeking explanation from Court about legitimacy of procedure adopted – Petitioners could have sought review of the contempt order under Article 137 – Could have filed curative petition thereafter – Doing nothing – After contempt notice and during 25 dates of hearing, order not complied – Instead, petitioner tried seeking extension of time before SEBI, SAT and High Court against order of Supreme Court – Shocking. (Para 40 to 44)

       (2002) 4 SCC 388 – Relied upon

       (d) Constitution of India – Article 129 – Contempt of Supreme Court – Petitioners-contemnors showing defiant stance since the stage of investigation by SEBI through the contempt order and stonewalling process of law – By furnishing list of properties which could not be sold taking the Court for a ride – All the efforts made by Court systematically scuttled by the contemnors – Not even a single paisa has been deposited, after the order dated 5.12.2012 – Having failed miserably in persuading contemnors to comply with the directions arrest and detention was ordered – Fully justified. (Para 49, 50, 52, 54)

       (e) Code of Civil Procedure, 1908 – Section 51, 55, 58 (1) and (2) – Executing court may order arrest and detention u/s 51 for the execution of a decree for payment of money following modalities in section 55 – Section 58(1) provides for release of the person on execution of money decree and section 58(2) provides that release of judgment debtor from jail does not discharge him from his debt. (Para 58)

       (f) Code of Criminal procedure, 1973 – Section 125, 128, 357, 421 and 431 – A person can be arrested and put in jail for default in payment and would not be released till he made the payment – Sending a person to jail is a manner, procedure or device for satisfaction of the liability – Arrest and detention used only to coerce compliance – Remaining in jail, however, would not discharge the liability to pay – Cr PC prescribes elaborate procedure whereunder a person can be subjected to arrest and detention for the satisfaction of a fine or compensation (i.e., for the recovery of a financial liability). (Para 59, 60)

       (1989) 1 SCC 405; (2013) 10 SCC 618; (2010) 6 SCC 230 – Relied upon

       (g) Code of Civil Procedure, 1908 – Order VI, rule 1 – Pleading – Petitioners’ counsel contending emphatically that order for arrest and detention of petitioners for not depositing investors’ dues was draconian asserting that execution of a money-decree by way of arrest was a procedure “unknown to law” – At the same time, the petition relying on the relevant provision of CPC – A contradiction in terms – A new phase of advocacy – In view of provisions of CPC and CrPC and various other statutes permitting arrest and detention for execution of financial liability, contention rejected. (Para 56, 61)

       (h) Code of Civil Procedure, 1908 – Section 51, Proviso and Order XXI, rules 37 and 40 r/w Order XIII rule 6, Supreme Court Rules, 1966 – SEBI Act – Sections 11(3), 15U and 15Y – Petitioner challenging order of detention on the basis of provisions of CPC – Order dated 31.8.2012 and 5.12.2012 leading to the detention order arising SEBI Act – Sections 11(3), 15U and 15Y of SEBI Act barring applicability of provisions of CPC for enforcement of orders under SEBI Act – Further, jurisdiction of civil courts excluded in matters governed by SEBI Act – Provisions of CPC per se inapplicable to proceedings under the SEBI Act – Still, order of detention passed on the Court believing in likelihood of petitioner absconding or leaving jurisdiction of the Court for obstructing or delaying the execution of the decree as required by Proviso to section 51 – Secondly despite having assets of over several thousand crores of rupees petitioners paying only Rs.5120 crores so far against instant liability – In absence of executing mechanism under SEBI Act, Order XIII rule 6, Supreme Court Rules, 1966 also held inapplicable – Held, order of arrest and detention passed following statutory requirements. (Para 65, 66, 68, 69, 70, 74, 75)

       (1998) 4 SCC 409; (2002) 4 SCC 578; (1980) 2 SCC 360 – Distinguished

       (i) Constitution of India – Article 142 – Natural Justice – Arrest and detention of petitioner – Notice – Petitioner having due notice of IA petitions seeking his arrest and detention for reasons given therein – Petitioner filing his personal counter affidavit on 8.5.2013 – Petitioner, personally and through his counsel, constantly being in the knowledge of the proceedings – Even responding and each response duly considered by Court – However petitioner-contemnor not complying with orders – Playing tricks with the Court – Held principles of natural justice fully complied with while passing order of arrest and detention – Also no fundamental right of the petitioner violated. (Para 82, 84, 96)

       (j) Administration of Justice – Judicial Bias – Alleging strong commitment towards ‘other side’ – Alleging the order passed on 26.3.2014 to be an impossible order – Orders dated 31.8.2012 and 5.12.2012 becoming final – No jurisdiction or authority to relax terms and conditions thereof – No bias alleged before hearing of present petition – Petitioner raising plea of bias now out of frustration being cornered into a situation wherefrom there is no escape – Merits of claim and counter-claim already settled by order dated 31.8.2012 – No lis pending now –In absence of a lis, question of bias does not arise. (Para 97 to 100, 102, 104, 105, 106, 112)

       1995 Supp. (1) SCC 384 – Relied upon

       (1957), SCR 575; (1926) AC 586; (1924) 1 KB 256; (1927) 2 KB 475 – Distinguished

       (k) Administration of Justice – Judicial Bias – Predisposed mind – Lis already determined – No adjudication left – Execution of the order which has attained finality is the task – No question of bias – Some relaxation granted by order dated 26.3.2014 – Total liability after deposit of Rs.5,120 crores being Rs.17,400 crores of which Rs.10000 crores was to be deposited in January 2013 as first installment – On failure, embargo placed o accounts and properties – Contemnors only putting proposals in different combinations for first installment – No proposal for balance amount – No payment made – Only requesting lifting of embargo – Not undertaking payment – Submission of predisposed mind rejected. (Para 108, 109, 110)

       (l) Constitution of India – Article 129 – SEBI directing refund of OFCD deposits by way of Demand draft or Pay order – Contemnors submitting they refunded amounts to investors in cash – Contrary to SEBI directive – No details furnished – Only Rs.351 crores worth of debentures redeemable upto 2012-13 – Assertion of redemption of thousands of rupees by cash – Not acceptable – Another tactic in the series of manoeuvres. (Para 113, 114, 115)

       (m) Constitution of India – Article 32 – Court of competent jurisdiction passing order of imprisonment – Cannot be assailed by petition for writ of habeas corpus. (Para 141)

       (1972) 3 SCC 256 – Relied upon

       (n) Administration of Justice – Jurisdiction – Maintainability of petition – Three counsel of petitioner making three different and divergent submissions – One counsel insisting jurisdiction on ground of maxim ex debito justitiae power expressly recognized in A.R. Antulay’s case – Another counsel submitting that petition be treated under Article 32 of the Constitution – Yet another counsel submitting to treat the petition under Articles 129 and 142 of the Constitution – Shows that counsel themselves not sure about maintainability of the petition – Petition questioning judgment which has attained finality – Maxim cannot confer jurisdiction – Writ petition filed to assail a judicial order – Not maintainable, even under Articles 129 and 142 of the Constitution. (Para 125 to 129, 131, 138, 141, 143, 144)

       (2002) 4 SCC 388; AIR 1967 SC 1; (1972) 3 SCC 256; (1983) 4 SCC 7; (1991) 4 SCC 304; (2013) 1 SCC 314 – Relied upon

       (1988) 2 SCC 602; (1998) 4 SCC 409; (2000) 1 SCC 278 – Distinguished

       Facts of the case:

       The petitioner has assailed the order dated 4.3.2014 passed in Contempt Petition (Civil) nos. 412 and 413 of 2012 and Contempt Petition (Civil) no. 260 of 2013.

       This case relates to the controversy of the Sahara Group of Companies.

       Finding of the Court:

       Bench-hunting or bench-hopping or bench-avoiding coupled with asking the Bench to recuse strongly deprecated.

       Petitioner and his Companies indulging abusing the process of law, taking the Court for a ride.

       Result: Petition dismissed as not maintainable.