IN THE BOMBAY HIGH COURT
APPELLATE SIDE AT BOMBAY
High Court on its own Motion – Appellant
Dr. Leo Rebello – Respondent
RESPONDENT’S PRELIMINARY OBJECTIONS
ON NON-MAINTAINABILITY OF CRIMINAL SUO MOTU CONTEMPT PETITION NO. 15 OF 2011.
I, Dr. Leo Rebello, Age 61, a responsible and socially conscious Indian citizen, medico-social worker, human and legal rights activist, author and world peace envoy, residing at 28/552 Samata Nagar, Kandivali East, Mumbai 400101, do hereby solemnly affirm and state as under :-
1.. That, the Notice received violates several rules made by the Bombay High Court in 1994 to regulate proceedings for contempt under the Contempt of Court Act, 1971, which are set out hereinbelow. For these and other reasons the Notice is ab initio void, not enforceable in law and should, therefore, be dismissed forthwith as NOT maintainable.
2.. That, this Notice at the very outset would not have been despatched to me, if the High Court had scrutinised the same and had cared to read my Reply at Annexure 12 to the Notice of Mr. S.S.Shinde, Chief Metropolitan Magistrate (hereinafter referred to as “the said CMM”, for brevity), and being a flimsy petition with several glaring omissions.
3.. That, Rule 1032 (a) to (e) of the Contempt Rules of 1994 sets out how the Contempt petition should be preferred. The Reference u/s 15(2) of the Contempt of Court Act 1971, made by a subordinate court, namely, “the said CMM” is devoid of merit.
4.. That, “Before making a reference” vide Rule 1039 (b) “the Subordinate Court shall hold a preliminary enquiry by issuing a Show Cause Notice accompanied by copies of relevant documents, if any, to the contemnor and after hearing him the Subordinate Court shall write a concise reasoned order of reference indicating the nature of the contempt…”
5.. That, the order passed by “the said CMM” is far from reasoned order. It is laconic and cryptic and he simply says that the “Notice reply is not satisfactory”, but fails to elaborate which of my replies are unsatisfactory and why.
6.. That, “the said CMM”, did NOT supply copies of various annexures when he served a Show Cause notice dated 27.07.2011, mandatory vide Rule 1039 (b). Therefore, he cannot rely on documents which he did not give me. Besides, unverified or unaffirmed allegations are not tenable in law and hence Statements attached now as Annexure 8 (from Adv. KM Barsagade, who was not present in the Court); Annexure 9 (D.B.Kumbhar, Chief Interpreter of the CMM’s Court); and Annexure 10 (V.S.Pandaram, typist attached to CMM’s court) are invalid as: they are all “tutored or captive witnesses” and it is obvious these were added later. This amounts to fabrication of records.
7.. That, Mr. S.S.Shinde, CMM should have been shown as the Petitioner, being the initiator. Rule 1033(b). Instead, the Bombay High Court on its own Motion has been shown as the Appellant, which is not correct, factually and technically.
8.. That, the State of Maharashtra has not been shown as the Second Respondent which is necessary in all criminal cases, as per Rule 1033 (c), which says, “In every petition for Criminal Contempt, the State of Maharashtra shall be made a Respondent”.
9.. That, non-joinder of necessary party as required by Rule 1033 (c) is a serious lapse, which cannot be condoned, as it would amount to the High Court itself violating its own Rules.
10. That, the Petition made by “the said CMM”, under Rule 1032 (e) and the documents enclosed [vide Rule 1034(c)] do not reflect or justify contempt by the Respondent, but contempt of its own court by “the said CMM”, as fabrication of records is proved ex facie.
11. That, Dr. F.R.Shaikh, APP, representing the State of Maharashtra, has been heard in the absence of the Non-Joinder of the State as a Party. This is another irregularity. And, obviously, the APP has not brought to the notice of V.M.Kanade/A.M.Thipsay, JJ, the candid reply given by the Respondent, on 01 August 2011, to the Show Cause Notice of “the said CMM”. In that reply, I have clearly denied the false allegations made by the said CMM in his show cause notice.
12. Vide Rule 1042 (i) An Affidavit should accompany the Petition, which is missing. Also vide Rule 1043 the Court may direct the Advocate-General to appear and assist the Court. Here the Court has heard APP F.R.Shaikh and he has clearly misguided the Court or not performed his duty properly. APP’s duty is to establish the truth and not justify the wrong.
13. That, the Order passed by the said CMM on 01.08.2011 is perverse and based on false, fabricated and cooked up evidence. Except for paras 2 and 7, what the said CMM says in the remaining paras (totally 12) proves hanky-panky and bias (against the Respondent). What is shocking is that for, “Such prejudicial, unbecoming, irresponsible, scandalous conduct amounting to Criminal Contempt of his own Court” by “the said CMM”, this Hon’ble Court has wrongly issued an untenable Notice to the law-abiding citizen representing the poor. Such an untenable notice being void ab initio, the Respondent need not even attend the Court. But being a disciplined and law-abiding citizen, the Respondent sees this as an opportunity to bring on record the deteriorating trend of judiciary becoming corrupt, presents himself in the Court on 10th October 2011 to Right the grave Wrong done to him and to the Judicial dispensation itself, by “the said CMM”.
14. That, in conclusion, the criminal contempt petition no. 15 of 2011 referred by “the said CMM” is false, fabricated and a foul play. From the evidence it is prescient that Mr. Sudhir S. Shinde in connivance with the unscrupulous and apparently influential Adv. Manoj Shamrao Mohite (brother of Judge Rajiv Shamrao Mohite, who resigned on being transferred from Bombay High Court to Patna), has filed this case mainly to save his face and to deliberately delay criminal case 92/SW/2008, in which “the said CMM” himself notes in para 7 of page 3 of his representation dated 6th August, 2011: “The above case is filed by slum dwellers residing in Kandivali area against Thakur Builders and Directors of the said company u/s 420, 452, 465, 457, 568, 471 and 34 of I.P.C.”, but hides the important fact that the said case has been delayed since 2005 primarily because of Adv. Manoj Shamrao Mohite’s antics.
15. That, if the records of the case 92/SW/2008 (in original MCOC case no. MA-236 of 2005) and 40/TA/2011 are examined with their enclosures (suppressed), it will immediately prove that Adv. Manoj Mohite’s clients V.K. Singh, Ramesh Singh, MLA, J.N. Singh and R.N.Singh would have been behind bars by now in criminal case 92/SW/2008, in which the Respondent is representing, pro bono publico and gratis, 52 slum dwellers, who have not been provided the alternative accommodation due to them, for more than 25 years; whereas unscrupulous Manoj Mohite is representing the criminals, and has drawn several false documents, including in this particular case, which makes him an accomplice of the criminals and such conduct is unbecoming of an advocate whose primary duty is to assist in the call of justice.
16. That, when corruption is present, conscience is absent and the person loses his self-control and balance; he then abuses power unmindfully and good laws are turned upside down to the detriment of law-abiding citizens. Instead of serving the cause, namely, to establish the majesty of law, “the said CMM” is trampling justice, equity, fairplay, truth and wisdom by referring such a false case to the Registrar General, who without studying the papers is increasing the burden on the Court as also on the Respondent.
17. That, from what has been stated above, the doubtful conduct of the said CMM is prescient and in fact justifies issuance of suo motu contempt notice to him and his accomplice Adv. Manoj Shamrao Mohite, in the facts and circumstances as set out by me hereinabove.
18. That, the Respondent faithfully submits that in view of the congent reasons mentioned above, the Contempt Petition no.15/11, being not maintainable ought to be dismissed in limine, as per Rule 1035(1) and the Show Cause Notice issued to the Respondent be discharged forthwith.
19. That, the Respondent reserves his right to add, change, improve and submit additional points or bring additional documents on record to prove how Mr. S.S.Shinde, “the said CMM”, has committed contempt of his own court and hence why he is not fit to continue in that responsible position.
20. Provisions of law are not mere formulae to be observed as rituals. Beneath the words of provision of law, there lies a juristic principle. It is the duty of this Hon’ble Court to implement that principle. And the Respondent is confident that this Learned Bench shall not fail in its duty and shall not protect the wrong-doer and shall not victimize the law-abiding citizen.
IT IS, THEREFORE, PRAYED:-
(a) This Contempt petition no.15 of 2011 should be dismissed forthwith as per Rule 1035(1) of the Contempt of Courts (Bombay High Court) Rules.
(b) Exemplary costs should be imposed on “the said CMM”, like the High Court usually does in frivolous WP/PILs; under special jurisdiction, vide section 10(3) of the Contempt of Court Act, 1971 “for committing contempt of itself” apparent on the face of the record.
(c) Order an inquiry and appropriate disciplinary action against “the said CMM” for abuse of judicial power, for aiding and abetting the known criminals and for high-handedness, which the records so clearly amplify.
(d) For costs, and
(e) For such other and further relief as may be deemed necessary by this Court in the facts and circumstances of the case.
Solemnly affirmed at Bombay, on 10th October, 2011.
Sd/- Dr. Leo Rebello, Respondent