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TMI Blog2014 (5) TMI 289X X X X Extracts X X X X X X X X Extracts X X X X ..... m Court to Court, incurring public expense in its defence, against frivolous litigation. Every order was consistently and systematically disobeyed. Every order passed by the SEBI was assailed before the next higher authority, and then before this Court. Even though High Courts have no jurisdiction, in respect of issues regulated by the SEBI Act, some matters were taken to the High Court of Judicature at Allahabad (before its Lucknow Bench). Every such endeavour resulted in failure, and was also sometimes, accompanied with strictures. Even after the matter had concluded, after the controversy had attained finality, the judicial process is still being abused, for close to two years. A conscious effort on the part of the legislature in this behalf, would serve several purposes. It would, besides everything else, reduce frivolous litigation. When the litigating party understands, that it would have to compensate the party which succeeds, unnecessary litigation will be substantially reduced. At the end of the day, Court time lost is a direct loss to the nation. It is about time, that the legislature should evolve ways and means to curtail this unmindful activity. We are sure, that a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... orders passed by this Court shakes the very foundation of our judicial system and undermines the rule of law, which we are bound to honour and protect. This is essential to maintain faith and confidence of the people of this country in the judiciary. 4. We have found that the contemnors have maintained an unreasonable stand throughout the proceedings before SEBI, SAT, High Court and even before this Court. Reports/analysis filed by SEBI on 18.2.2014 make detailed reference to the submissions, documents, etc. furnished by the contemnors, which indicates that they are filing and making unacceptable statements and affidavits all through and even in the contempt proceedings. Documents and affidavits produced by the contemnors themselves would apparently falsify their refund theory and cast serious doubts about the existence of the so-called investors. All the fact finding authorities have opined that majority of investors do not exist. Preservation of market integrity is extremely important for economic growth of this country and for national interest. Maintaining investors' confidence requires market integrity and control of market abuse. Market abuse is a serious financial cri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under any other law of the land. Inviting the Court's attention to the heading of the petition, it was submitted, that it did not disclose any legal provision, whereunder the present writ petition had been filed. He submitted, that as per its own showing (ascertainable from the title of the petition), the present writ petition had been filed, under the power recognized and exercised by this Court, in A.R. Antulay v. R.S. Nayak, [1988] 2 SCC 602. It was the assertion of learned counsel, that the above judgment, has now been clarified by this Court. According to learned counsel, it has now been settled, that the above judgment did not fashion or create any such power or jurisdiction, as is sought to be invoked by the petitioner. 4. Besides the above purely legal submission, learned Senior Counsel for the respondents equally candidly submitted, that the filing of this petition was a carefully engineered device, adopted by the petitioner as a stratagem, to seek our withdrawal from the matter. In order to emphasise that this Bench was being arm twisted, learned counsel invited our attention to the foot of the last page of the petition, i.e., to the authorship of the petition, ju ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... as a Bench did not exist for 12.3.2014, yet a Special Bench was constituted for listing the present writ petition, in its present arrangement. It is therefore reasonable to infer, that the present constitution of the Bench, was a conscious determination of Hon'ble the Chief Justice. 7. Now the embarrassment part. Having gone through the pleadings of the writ petition we were satisfied, that nothing expressed therein could be assumed, as would humiliate or discomfort us by putting us to shame. To modify an earlier order passed by us, for a mistake we may have committed, which is apparent on the face of the record, is a jurisdiction we regularly exercise under Article 137 of the Constitution of India. Added to that, it is open to a party to file a curative petition as held by this Court in Rupa Ashok Hurra v. Ashok Hurra, [2002] 4 SCC 388. These jurisdictions are regularly exercised by us, when made out, without any embarrassment. Correction of a wrong order, would never put anyone to shame. Recognition of a mistake, and its rectification, would certainly not put us to shame. In our considered view, embarrassment would arise when the order assailed is actuated by personal and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... petitioner, distanced himself from the above submissions. He informed the Court, I am not invoking the doctrine of bias, as has been alleged We are of the view, that a genuine plea of bias alone, could have caused us to withdraw from the matter, and require it to be heard by some other Bench. Detailed submissions on the allegations constituting bias, were addressed well after proceedings had gone on for a few weeks, the same have been dealt with separately (under heading VIII, Whether the impugned order dated 4.3.2014, is vitiated on account of bias? ). Based on the submissions advanced by learned counsel, we could not persuade ourselves in accepting the prayer for recusal. 10. We have recorded the above narration, lest we are accused of not correctly depicting the submissions, as they were canvassed before us. In our understanding, the oath of our office, required us to go ahead with the hearing. And not to be overawed by such submissions. In our view, not hearing the matter, would constitute an act in breach of our oath of office, which mandates us to perform the duties of our office, to the best of our ability, without fear or favour, affection or ill will. This is cer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter, if ever we felt that, that would be the righteous course to follow. Whether or not, it would be better for another Bench to hear this case, will emerge from the conclusions, we will draw, in the course of the present determination. 12. What is it that this Court had done through its order dated 31.8.2012 while upholding the earlier orders passed by the SEBI (FTM) (dated 23.6.2011) and the SAT (dated 18.10.2011)? We had merely confirmed the directions earlier issued to the two companies, to refund the moneys collected by them from investors, who had subscribed to their OFCD's, by the SEBI (FTM) and by the SAT. The directions did not extend to funds contributed by the promoters, the directors or the other stakeholders. The refund did not include any business gains earned by the two companies during the subsistence of their enterprise. According to the stance adopted by the two companies before this Court, all the investors' money collected through OFCD's, had mainly been invested with the other companies of the Sahara Group. This position was expressly reiterated, in the two separate affidavits filed by Sahara India Real Estate Corporation Limited (hereinafter ref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... by exerting influence from the Ministry of Corporate Affairs, and by raising purely technical pleas. And also because, the little bits of information made available by the companies for evaluation, were found to be seriously doubtful. It is also important for us to record, that the pointed position adopted by the SEBI before this Court, during the disposal of Civil Appeal nos. 9813 and 9833 of 2011 was, that neither SIRECL, nor SHICL, ever provided details of its investors to the SEBI (FTM). They contested the proceedings initiated by the SEBI (FTM), only on technical grounds. We were told that even before the SAT, no details were furnished. The position remained the same, even before this Court. Based on the non disclosure of information sought from the two companies, it was not possible to record a firm finding, either ways. It is, therefore, that a different procedure was adopted by this Court while disposing the appeals preferred by the two companies, vide order dated 31.8.2012. The companies were restrained from making direct refunds. They were directed to deposit all investor related funds (along with interest) with the SEBI. The SEBI was in turn directed, to make the refunds ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned feels, that the order is wholly illegal and void? 15. By the time a Judge is called upon to serve on the Bench of the Supreme Court of India, he understands his responsibilities and duties ..and also his powers and authority. A Judge has the solemn duty of deciding conflicting issues between rival parties. Rival parties inevitably claim diagonally opposite rights. The decision has however to be rendered in favour of one party (and against the other). That, however, is not a cause for much worry, because a Judge is to decide every dispute, in consonance with law. If one is not free to decide in consonance with his will, but must decide in consonance with law, the concept of a Judge being an individual possessing power and authority, is but a delusion. The saving grace is, that only a few understand this reality. But what a Judge is taught during his arduous and onerous journey to the Supreme Court is, that his calling is based on, the faith and confidence reposed in him to serve his country, its institutions and citizens. Each one of the above (the country, its institutions and citizens), needs to be preserved. Each of them grows to prosper, with the others' support. Each ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tates. In such disputes, the order could be in favour of (or against), the Government of India, and/or one or the other State Government(s) concerned. Yet, the orders passed by the Supreme Court on the above disputes, have unfailingly been accepted and complied with, despite the seriousness of the consequences, emerging from such orders. The settlement of such disputes by the Supreme Court, has not ever earned scorn, disdain, disrespect or denigration of the parties concerned. The Supreme Court also enforces through its writ jurisdiction, fundamental rights of the citizens of this country. In case an individual's fundamental rights (or other legal rights), are found to have been violated, the Government of India, or the concerned State Government, or the instrumentality/institution concerned, is directed to restore to the individual, what is due to him. The Government (or the instrumentality/institution) concerned, which is directed to extend benefits denied to an individual(s), has always honourably obeyed and implemented Court orders, gracefully. There are numerous institutions created to assist the executive government, in matters of governance. Some of them are constitution ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made to the nine-Judge Constitution Bench judgment of this Court, in Naresh Sridhar Mirajkar v. State of Maharashtra, AIR 1967 SC 1, wherein it was held as under:- 60. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Article 215 , shall have all powers of such a Court of Record including the power to punish contempt of itself. One distinguishing characteristic of such superior Courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered by this Court in Special Reference No. 1 of 1964, (1965) 1 SCR 413 at p. 499. In that case, it was urged before this Court that in granting bail to Keshav Singh, the High Court had exceeded its jurisdiction and as such, the order was a nullity. Rejecting this argument, this Court observed that in the case of a superior Court of Record, it is for the Court to consider whether any matter falls within its jurisdiction or not. Unlike a court of limited jurisdiction, the superior court is entitled to determine for itself questions about its own jurisdiction. That is why this Court did not accede ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India And it is also inter alia for the above enforcement, that Article 129 of the Constitution of India, vests in the Supreme Court the power, amongst other things, to enforce compliance of Court directions. The Supreme Court has the jurisdiction and power, to punish for its contempt. It is this dispensation, which authorizes the Supreme Court to enforce compliance of its orders. For, the power to punish, would serve no purpose, if the power to enforce compliance was lacking. It was, therefore, that this Court in Maninderjit Singh Bitta v. Union of India, [2012] 1 SCC 273, with reference to its contempt jurisdiction observed, thus:- 26. It is also of some relevance to note that disobedience of court orders by positive or active contribution or non-obedience by a passive and dormant conduct leads to the same result. Disobedience of orders of the court strikes at the very root of rule of law on which the judicial system rests. The rule of law is the foundation of a democratic soci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oke contempt jurisdiction as a tool for compliance of its orders in future, we hereby direct the State Government and the Respondent/contemnor herein now to positively comply with the orders and implement the scheme within eight weeks from today. (emphasis is ours) In this context, the following observations made by this Court, in Supreme Court Bar Association v. Union of India, [1998] 4 SCC 409, illustrate the point sought to be made: 42. The contempt of court is a special jurisdiction to be exercised sparingly and with caution, whenever an act adversely effects the administration of justice or which tends to impede its course or tends to shake public confidence in the judicial institutions. This jurisdiction may also be exercised when the act complained of adversely effects the Majesty of Law or dignity of the courts. The purpose of contempt jurisdiction is to uphold the majesty and dignity of the Courts of law. It is an unusual type of jurisdiction combining the jury, the judge and the hangman and it is so because the court is not adjudicating upon any claim between litigating parties. This jurisdiction is not exercised to protect the dignity of an individual judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , which position remained unaltered, before the SAT. These need to be highlighted, to fully understand how a litigant can behave, to defeat the cause of justice. The responsibility for the above demeanour, would essentially fall, on the shoulders of the promoter, and the directors, of the two companies. As a matter of fact, Mr. Subrata Roy Sahara (the petitioner before this Court), Ms. Vandana Bhargava (the director exempted from arrest, in the impugned order dated 4.3.2014), Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary (the directors, whose arrest and detention was ordered by this Court, along with that of the petitioner, on 4.3.2014) were expressly named by the SEBI, and prohibitory orders were passed by the SEBI (FTM), against the afore-stated promoter and directors, expressly restraining them from carrying out various activities connected with the two companies. It is also essential, to refer to the disposition of the two companies (under reference), in the proceedings initiated by them, before the High Court of Judicature at Allahabad, Lucknow Bench (hereinafter referred to as, 'the High Court'). The above referred disposition, led to passing of strictures, and t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... addressed separate communications to the two companies, dated 21.5.2010, seeking the same information. Both companies adopted the same posture, yet again. This time, however, SIRECL, as well as, SHICL pointed out to the SEBI, that it had no jurisdiction to inquire into the affairs of the two companies, under the provisions of the SEBI Act. 25. The SEBI repeated its request to the two companies, for the required information, through two separate communications, dated 11.06.2010. On this occasion, the two companies addressed separate letters dated 16.06.2010 to the SEBI, informing it, that they had received a communication from the office of the Union Minister of State for Corporate Affairs, to the effect, that the jurisdictional issue raised by the two companies, was under the consideration of the Ministry of Corporate Affairs. Accordingly, the two companies informed the SEBI, that they would furnish the information sought, only upon the Ministry's conclusion, that the SEBI had the jurisdiction in the matter. 26. In view of the posture adopted by the two companies, summons dated 30.8.2010 and 23.9.2010, were issued under Section 11C of the SEBI Act to them, to provide the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 23.9.2010), fully and accurately, without any delay. Despite the above, neither of the two companies, furnished the information sought. 29. On its own, the SEBI obtained a part of the information, from the MCA-21 portal maintained by the Ministry of Corporate Affairs. This information had been furnished by SIRECL, to the Registrar of Companies, Uttar Pradesh and Uttarakhand; and by SHICL, to the Registrar of Companies, Maharashtra. By an order dated 24.11.2010, the SEBI (FTM) drew the following inferences/conclusions: Firstly, neither SIRECL nor SHICL had denied their having issued OFCDs. Secondly, SIRECL as also SHICL acknowledged having filed RHPs in respect of the OFCDs issued by them with the concerned Registrar of Companies. Thirdly, besides the dates of filing the RHPs with the respective Registrar of Companies, neither of the companies had furnished any other information/document sought from the companies by SEBI. Fourthly, the companies had adopted a stance, that they did not have complete details relating to the securities issued by them. This stance adopted by the two companies, according to the SEBI, was preposterous. Fifthly, SEBI had sought details of the numbe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the two companies had committed, the following violations: (a) failure to file the draft offer document with SEBI; (b) failure to mention the risk factors and provide the adequate disclosures that is stipulated, to enable the investors to take a well-informed decision. (c) denied the exit opportunity to the investors. (d) failure to lock-in the minimum promoters contribution. (e) failure to grade their issue. (f) failure to open and close the issue within the stipulated time limit. (g) failure to obtain the credit rating from the recognized credit rating agency for their instruments. (h) failure to appoint a debenture trustee (i) failure to create a charge on the assets of the company. (j) failure to create debenture redemption reserve, etc. Based on the above conclusions, the SEBI (FTM) issued directions by way of an ad interim ex parte order, restraining SIRECL and SHICL from mobilizing funds under their respective RHPs, dated 13.03.3008 and 06.10.2009. The companies were also directed, not to offer their equity shares/OFCDs or any other securities, to the public and/or invite subscription in any manner whatsoever, either directly or indirectl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cause notice dated 24.11.2010. The above notices were contested by both the companies, again on legal technicalities. Importantly, the companies yet again, did not furnish any factual details to the SEBI. The defiance continued. 33. On 23.6.2011, the SEBI(FTM), passed the following directions:- 1. The two Companies, Sahara Commodity Services Corporation Limited (earlier known as Sahara India Real Estate Corporation Limited) and Sahara Housing Investment Corporation Limited and its promoter, Mr. Subrata Roy Sahara, and the directors of the said companies, namely, Ms. Vandana Bhargava, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary, jointly and severally, shall forthwith refund the money collected by the aforesaid companies through the Red Herring Prospectus dated March 13, 2008 and October 6, 2009, issued respectively, to the subscribers of such Optionally Fully Convertible Debentures with interest of 15% per annum from the date of receipt of money till the date of such repayment. 2. Such repayment shall be effected only in cash through Demand Draft or Pay Order. 3. Sahara Commodity Services Corporation Limited (earlier known as Sahara India Real Estate Corporation ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... understand, that this Court while passing the above interim order, did not vary the manner of making refunds, in case the two companies concerned decided to make any refund to the investors. In this behalf it needs to be noticed, that in its order dated 23.6.2011, the SEBI (FTM) had clearly directed, that such repayment could only be made in cash through demand draft or pay order. No liberty was granted to the two companies, to convert the investment made by the holders of the OFCD's, into similar investments, with the other companies. In other words, cash conversion in any other format, was not permitted. To comply with the letter and spirit of the above orders, therefore, even if refund was to be made by the investors, it could have been done, only by way of demand drafts or pay orders, and not, by way of cash. The alleged cash payment made by the two companies, while redeeming the OFCD's, was therefore per se illegal, and in violation of the orders, dated 23.6.2011 (passed by the SEBI (FTM)) and 18.10.2011 (passed by the SAT). We must, therefore emphatically point out, that the very submission now made by the companies, that the investors were refunded their deposits by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... appellate proceedings was, that SIRECL had furnished a compact disc to the SEBI (FTM), along with its operating key. The compact disc, according to learned counsel, had complete investor related data, pertaining to SIRECL. Whilst it was acknowledged by the SEBI before this Court, that a compact disc (allegedly containing details about the investors) was furnished by SIRECL, yet it was emphatically pointed out, that its operating key was withheld. This was another deliberate manoeuvre adopted, to withhold investor related information from the SEBI(FTM). Resultantly, no details whatsoever were ever disclosed by SIRECL either before the SEBI (FTM) or the SAT. 38. The position adopted by SHICL was even worse. It is necessary to place on record the fact, that the SHICL, one of the two concerned companies, never ever disclosed the names and other connected details of its investors to the SEBI. We made a repeated poser, during open hearing (in the present writ petition), about SHICL having never furnished its investor details. The above position was confirmed by learned counsel representing the SEBI. Unfortunately, Mr. S. Ganesh, learned Senior Counsel for the petitioner, on the last ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... oter, and Mr. Ashok Roy Choudhary and Mr. Ravi Shankar Dubey, as directors, were always treated as actively involved in the matter, and therefore, various orders (including restraint orders) were passed, wherein they were expressly named. Since they shouldered the overall responsibility of the affairs of the two companies, it was fully justified for this Court, to require them to comply with the orders passed by this Court on 31.8.2012 and 5.12.2012. IV. Efforts made by this Court, to cajole the contemnors, including the petitioner - Mr. Subrata Roy Sahara, for compliance of the orders of this Court, dated 31.8.2012 and 5.12.2012 40. During the course of hearing of the instant writ petition, we were given to understand, that all counsel representing the petitioner were taken by surprise when we passed the order dated 4.3.2014 (extracted at the beginning of this order). It was submitted, that a person of the eminence of the petitioner, could not be suddenly sent to jail without notice. It was asserted, that the petitioner had entered appearance to assist this Court, and to explain his position, but no opportunity was granted to him. Some of the learned counsel representing the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 4.3.2014 was passed:- 11.9.2012, 28.9.2012, 19.10.2012, 19.11.2012, 8.1.2013, 6.2.2013, 8.2.2013, 19.2.2013, 25.2.2013, 4.4.2013, 22.4.2013, 2.5.2013, 8.5.2013, 17.7.2013, 24.7.2013, 30.7.2013, 6.8.2013, 13.8.2013, 26.8.2013, 2.9.2013, 16.9.2013, 4.10.2013, 28.10.2013, 31.10.2013, 1.11.2013, 20.11.2013, 21.11.2013, 11.12.2013, 17.12.2013, 2.1.2014, 9.1.2014, 28.1.2014, 11.2.2014, 20.2.2014 and 26.2.2014 In recording the dates of hearing, we have not taken into consideration the dates of hearing in Civil Appeal no. 8643 of 2012 (and Writ Petition (Civil) no. 527 of 2012), during the proceedings whereof a three-Judge Bench of this Court, passed the order dated 5.12.2012. Surely, during the 35 dates of hearing, whereafter the order dated 4.3.2014 was passed, the petitioner must have been able to understand, what was going on. For the proceedings were not smooth and favourable for the petitioner. A number of earlier orders, affected the petitioner's rights adversely. It is therefore, that we have recorded hereinabove, that the stand canvassed by learned counsel was unimaginable. We may therefore first record the happenings, after we passed the order dated 31.8.2012 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1.8.2012. Accordingly on 17.7.2013, we directed that no High Court, Securities Appellate Tribunal and any other Forum shall pass any order against the orders passed by the Securities and Exchange Board of India (SEBI) in implementation of this Court's judgment dated 31.8.2012 . 46. On 24.7.2013, this Court issued notice, in Contempt Petition (Civil) no. 260 of 2013 on account of non-compliance of the orders passed by this Court on 5.12.2012. The order dated 5.12.2012 (passed in Civil Appeal no. 8643 of 2012 and Writ Petition (Civil) no. 527 of 2012) is being extracted hereunder:- This appeal is directed against the judgment and order dated 29th November, 2012, passed by the Securities Appellate Tribunal, in Appeal No.221 of 2012, holding that the same was premature and was not, therefore, maintainable 2. In earlier appeals, being C.A.No.9813 of 2011 and C.A.No.9833 of 2011, this Court was concerned with the powers of the Securities and Exchange Board of India (SEBI) under Section 55A(b) of the Companies Act, 1956, to administer various provisions relating to issue and transfer of securities to the public by listed companies or companies which intend to get their se ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Ps dated 13.3.2008 and 16.10.2009 and refund the amount to them with interest on their production of relevant documents evidencing payments and after counter checking the records produced by Saharas. 7. SEBI (WTM), in the event of finding that the genuineness of the subscribers is doubtful, an opportunity shall be afforded to Saharas to satisfactorily establish the same as being legitimate and valid. It shall be open to the Saharas, in such an eventuality to associate the concerned subscribers to establish their claims. The decision of SEBI (WTM) in this behalf will be final and binding on Saharas as well as the subscribers. 8. SEBI (WTM) if, after the verification of the details furnished, is unable to find out the whereabouts of all or any of the subscribers, then the amount collected from such subscribers will be appropriated to the Government of India. 9. We also appoint Mr. Justice B.N. Agrawal, a retired Judge of this Court to oversee whether directions issued by this Court are properly and effectively complied with by the SEBI (WTM) from the date of this order. Mr. Justice B.N. Agrawal would also oversee the entire steps adopted by SEBI (WTM) and other officials for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s., who has filed a separate Writ Petition, we are not inclined to accept the submissions made by Mr. Gopal Subramanium, at their face value, since, in the order of 31st August, 2012, it has been indicated that if any payments had been made, the details thereof, along with supporting documents, were to be submitted to SEBI to verify the same. Essentially, the appellants have failed on both counts, since neither the amount indicated in the order, together with interest @ 15% per annum, accrued thereon, has been paid, nor have the documents been submitted within the time stipulated in the said order. The reliefs prayed for in the writ petition filed by Universal Investors Association,amounts to a review of the order passed by this Court on 31.08.2012. 7. We, therefore, dispose of the appeal and the writ petition, as also the intervention applications with the following directions:- (I) The appellants shall immediately hand over the Demand Drafts, which they have produced in Court, to SEBI, for a total sum of ' 5120/- Crores and deposit the balance in terms of the order of 31st August, 2012, namely, ' 17,400/-Crores and the entire amount, including the amount mentioned a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, we could not compromise, the interest of the investors. As already noticed, in the discussion recorded under the preceding heading, the two companies never supplied any authentic details of their investors. Nor the details of the moneys collected. Whatever the two companies asserted, had to be accepted on its face value, to proceed further. When learned counsel for the petitioner, made a proposal to secure the amount payable to the investors of the two companies, we were not averse to the proposal. We wished to explore some intermediary means to secure compliance. That would have deferred adoption of harsher measures. With the above object in mind, we accepted the proposal of the learned counsel for the petitioner (and the other contemnors), to furnish a list of unencumbered immovable properties, which would secure the liability of the two companies (for compliance of the order dated 31.8.2012, as well as, the subsequent order dated 5.12.2012). The list of properties furnished to this Court, could not have been so furnished, without the petitioner's express approval. There can be no doubt about the aforesaid inference, because the stance now adopted by the petitioner shows, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ter the above restraint order was passed, to contend that the petitioner was not aware of the happenings in Court? He was aware that the above restraint order was passed, during the pendency of the contempt proceedings, which were initiated because of non-compliance of the orders dated 31.8.2012 and 5.12.2012. It is therefore incorrect to contend, that the petitioner had no notice, and was taken unawares. During the course of one of the subsequent hearings (on the subject), learned counsel representing the contemnors, clarified, that the properties in the list provided to this Court, could not be put to sale, in execution of the orders dated 31.8.2012 and 5.12.2012. What was the purpose sought to be achieved, if the properties (included in the list furnished to this Court) could not be sold, for the satisfaction of the judgment dated 31.8.2012? Surely, the contemnors, were taking this Court for a ride. The demeanour of the contemnors to stonewall the process of law, from the time investigation was commenced by the SEBI in 2009, continued even after the judicial process had attained finality, by this Court's order dated 31.8.2012. All along the petitioner feigns ignorance of eve ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s which, the contempt proceedings were moving? 51. Consequent upon passing of the above order dated 21.11.2013, a fresh list of properties was made available by the companies, to this Court. The Court permitted learned Senior Counsel representing the SEBI, time, to examine the authenticity of the list of properties furnished, including the valuation reports pertaining to the said properties. After a few dates of hearing, learned counsel for the contemnors informed this Court, that the list of properties offered, could not be sold for the execution of this Court's orders dated 31.8.2012 and 5.12.2012. We were then satisfied, that all the efforts made by us were systematically scuttled by the contemnors, by adopting one or the other excuse. The petitioner was adopting these tactics because, he had notice. Notice to comply with the orders dated 31.8.2012 and 5.12.2012. Yet, he stonewalled all efforts for compliance. He adopted the latter. Not even a single paisa has been deposited, after this Court's order dated 5.12.2012. 52. During the pendency of the contempt proceedings, we also decided to determine the veracity of the redemption theory, projected by the two companie ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld meet exclusively for the benefit of the contemnors, the Court felt that it had miserably failed, to persuade the contemnors to comply with its directions. Accordingly on 4.3.2014, in exercise of the powers conferred under Articles 129 and 142 of the Constitution of India, this Court ordered the arrest and detention of all the contemnors (except Mrs. Vandana Bhargava) in judicial custody at Delhi, till the next date of hearing. By the order dated 4.3.2014, the Court expressly granted liberty to the contemnors to propose an acceptable solution, for execution of its orders. Mrs. Vandana Bhargava, who was excused from the order of detention, was permitted to coordinate with those whose detention the Court had ordered, so as to enable them to formulate an acceptable solution for execution of the above orders. It is apparent, that right from the beginning, and even after ordering the detention of the contemnors including the petitioner herein, The Court was only endeavouring, to ensure the compliance of the orders passed by this Court on 31.8.2012 and 5.12.2012. On the following date of hearing i.e., on 7.3.2014, at the asking of the learned counsel representing the contemnors, we en ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Considering the attitude of the petitioner before this Court, one wonders what would happen to the judicial system, if every Court order had to be implemented, in the manner as the one in hand. We are informed, that the total amount presently payable in terms of this Court's order dated 31.8.2012, has swelled up to Rs.36,608 crores. In the above scenario, no other order, but the one passed by us, could have been passed on 4.3.2014. 55. Our leniency is apparent from the fact, that we have by our order dated 26.3.2014 ordered the petitioner and the other contemnors to be released on bail, on the receipt of a payment of Rs.10,000 crores, which is less than a third of the amount presently due. That would constitute, the first small step, taken by the contemnors, for the satisfaction of the orders passed by this Court on 31.8.2012 and 5.12.2012. The above orders must, under all circumstances, be given effect to in letter and spirit, and till that is done, the process of enforcing compliance, shall have to go on. The petitioner may be released from judicial custody, if he complies with our order dated 26.3.2014. That would however not excuse the petitioner from making the balance ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the decree- (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied- (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,- (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the suit in which the decree was passed, dishonestly transferred, concealed, or removed any part of his property, or committed any other act of bad faith in relation to his property, or (b) that the judgment-debtor has, or ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... release him. (2) The State Government may, by notification in the Official Gazette, declare that any person or class of persons whose arrest might be attended with danger or inconvenience to the public shall not be liable to arrest in execution of a decree otherwise than in accordance with such procedure as may be prescribed by the State Government in this behalf. (3) Where a judgment-debtor is arrested in execution of a decree for the payment of money and brought before the Court, the Court shall inform him that he may apply to be declared an insolvent, and that he may be discharged, if he has not committed any act of bad faith regarding the subject of the application and if he complies with provisions of the law of insolvency for the time being in force. (4) Where a judgment-debtor expresses his intention to apply to be declared an insolvent and furnishes security, to the satisfaction of the Court, that he will within one month so apply, and that he will appear, when called upon, in any proceeding upon the application or upon the decree in execution of which he was arrested, the Court may release him from arrest, and, if he fails so to apply and to appear, the Court may ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t, the purpose of the person's detention. It provides for the concerned person's release, on the satisfaction of the money-decree, even before the duration, for which he had been ordered to be detained. But the second proviso to Section 58(1) of the CPC provides, that such an order of detention would not be revoked without the order of the Court. . Another interesting aspect pertaining to the detention of an individual for the execution of a money-decree, is contained in Section 58(2) of the CPC, which provides, that a person who has been ordered to be arrested and detained (in the course of execution of a money-decree) and has been released from jail, would not be treated as having been discharged from his debt. In other words, the detention of a judgment-debtor in prison (for the execution of a money-decree), would not liberate/free him from the financial liability which he owes to the decree-holder. It is therefore apparent, from the provisions of the CPC, that a Court can order for the arrest and detention of a person, even for the enforcement of a paltry amount of Rs.2,000/- (and also for recovery of amounts, in excess thereof). 59. We may also refer to the provisi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... husband and has not remarried. (2) Any Such allowance for the maintenance or interim maintenance and expenses of proceeding shall be payable from the date of the order, or, if so ordered, from the date of the application for maintenance or interim maintenance and expenses of proceeding, as the case may be. (3) If any person so ordered fails without sufficient cause to comply with the order, any such Magistrate may, for every breach of the order, issue a warrant for levying the amount due in the manner provided for levying fines, and may sentence such person, for the whole, or any part of each month's allowance for the maintenance or the interim maintenance and expenses of proceeding, as the case be, remaining unpaid after the execution of the warrant, to imprisonment for a term which may extend to one month or until payment if sooner made: Provided that no warrant shall be issued for the recovery of any amount due under this section unless application be made to the court to levy such amount within a period of one year from the date on which it became due: Provided further that if such person offers to maintain his wife on condition of her living with him, and she r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g actual payment of the arrears. The whole purpose of sending to jail is to oblige a person liable to pay the monthly allowance who refuses to comply with the order without sufficient cause, to obey the order and to make the payment. The purpose of sending him to jail is not to wipe out the liability which he has refused to discharge. Be it also realised that a person ordered to pay monthly allowance can be sent to jail only if he fails to pay monthly allowance 'without sufficient cause' to comply with the order. It would indeed be strange to hold that a person who 'without reasonable cause' refuses to comply with the order of the Court to maintain his neglected wife or child would be absolved of his liability merely because he prefers to go to jail. A sentence of jail is no substitute for the recovery of the amount of monthly allowance which has fallen in arrears. Monthly allowance is paid in order to enable the wife and child to live by providing with the essential economic wherewithal. Neither the neglected wife nor the neglected child can live without funds for purchasing food and the essential articles to enable them to live. Instead of providing them with the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f every succeeding month. On failure to pay any monthly allowance for any month hereafter on the part of respondent No. 1, Surinder Singh, the learned Metropolitan Magistrate shall issue a warrant for his arrest, cause him to be arrested and put in jail for his failure to comply with this Court's order and he shall not be released till he makes the payment. With regard to the arrears which have become due till August 15, 1986, learned Counsel for the appellant states that having regard to the fact that respondent No. 1, has agreed to the aforesaid consent order, the appellant will not apply for the respondent being sent to jail under Section 125 of the Code of Criminal Procedure but will reserve the liberty to realize the said amount (Rs.5090 plus the difference between the amount that became due and the amount actually paid under the interim order) under the law except by seeking an order for sending respondent No. 1 to jail. The appeal will stand disposed of accordingly. (emphasis is ours) On the subject in hand, reference may also be made to a recent judgment of this Court in Poongodi v. Thangavel, [2013] 10 SCC 618. The relevant observations rendered by this Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ted and put in jail for his failure to comply with the Court's order, with a further direction that he would not be released till he had made the payment. Most importantly, the purpose of sending a person to jail, must be understood as being a manner, procedure or device, for the satisfaction of the liability. Arrest and detention is only to coerce compliance. The liability to pay, would stand discharged only by actual payment, of the amount due. Remaining in jail, would not discharge the liability to pay. 60. Insofar as the provisions of the Cr.P.C. are concerned, reference may also be made to Sections 357, 421 and 431, which are being extracted hereunder:- 357. Order to pay compensation. (1) When a Court imposes a sentence of fine or a sentence (including a sentence of death) of which fine forms a part, the Court may, when passing judgment order the whole or any part of the fine recovered to be applied- (a) in defraying the expenses properly incurred in the prosecution; (b) in the payment to any person of compensation for any loss or injury caused by the offence, when compensation is, in the opinion of the Court, recoverable by such person in a Civil Court; ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub- section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realise the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law: Provided that no such warrant shall be executed by the arrest or detention in prison of the offender. 431. Money ordered to be paid recoverable as fine.-Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and while doing so, has stated that the distinction between Sub-sections (1) and (3) of Section 357 is apparent. Subsection (1) provides for application of an amount of fine while imposing a sentence of which fine forms a part; whereas Subsection (3) calls for a situation where a Court imposes a sentence of which fine does not form a part of the sentence. The court further observed: 27. Compensation is awarded towards sufferance of any loss or injury by reason of an act for which an accused person is sentenced. Although it provides for a criminal liability, the amount which has been awarded as compensation is considered to be recourse of the victim in the same manner which may be granted in a civil suit. Finally the court summed up: 31. We must, however, observe that there exists a distinction between fine and compensation, although, in a way it seeks to achieve the same purpose. An amount of compensation can be directed to be recovered as a 'fine' but the legal fiction raised in relation to recovery of fine only, it is in that sense 'fine' stands on a higher footing than compensation awarded by the Court. 20. Moving over to the question, whether a de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . Sadanandan K. and Anr., [2009] 6 SCC 652, after noticing the provision of Section 421 and 431 of Cr.PC, which dealt with mode of recovery of fine and Section 6 4 o f IPC, which empowered the courts to provide for a sentence of imprisonment on default of payment of fine, the Court stated: 24. We have carefully considered the submissions made on behalf of the respective parties. Since a decision on the question raised in this petition is still in a nebulous state, there appear to be two views as to whether a default sentence on imprisonment can be imposed in cases where compensation is awarded to the complainant under Section 357(3) Cr.P.C. A s pointed out by Mr. Basant in Dilip S. Dahanukar's case, the distinction between a fine and compensation as understood under Section 357(1)(b) and Section 357(3) Cr.P.C. had been explained, but the question as to whether a default sentence clause could be made in respect of compensation payable under Section 3 57(3) Cr.P.C, which is central to the decision in this case, had not been considered. The court further held: 31. The provisions of Sections 357(3) a nd 431 Cr.P.C., when r ead with Section 6 4 IPC, empower the Court, whil ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation becomes such that there is no purpose is served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation and imposing another fine would be impractical as it would mean imposing a fine upon another fine and therefore would not ensure proper enforcement of the order of compensation. While passing an order under Section 357(3), it is imperative for the courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand defeated. ** ** ** 29. Section 4 31 clearly provides that an order of compensation under Section 357(3) will be recoverable in the same way as if it wer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... once again being extracted hereunder:- 51. Powers of Court to enforce execution Subject to such conditions and limitations as may be prescribed, the Court may, on the application of the decree-holder, order execution of the decree- (a) by delivery of any property specifically decreed; (b) by attachment and sale or by the sale without attachment of any property; (c) by arrest and detention in prison for such period not exceeding the period specified in section 58, where arrest and detention is permissible under that section; (d) by appointing a receiver; or (e) in such other manner as the nature of the relief granted may require: Provided that, where the decree is for the payment of money, execution by detention in prison shall not be ordered unless, after giving the judgment-debtor an opportunity of showing cause why he should not be committed to prison, the Court, for reasons recorded in writing, is satisfied- (a) that the judgment-debtor, with the object or effect of obstructing or delaying the execution of the decree,- (i) is likely to abscond or leave the local limits of the jurisdiction of the Court, or (ii) has, after the institution of the s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , to enforce payment, by way of arrest and detention. It was however the contention of the learned Senior Counsel, that none of the above preconditions existed, when this Court all of a sudden, without affording an opportunity to the petitioner, ordered his arrest and detention along with two other directors on 4.3.2014 (by passing the impugned order). 63. In addition to the above submission, learned Senior Counsel invited our attention to Order XXI rules 37 and 40 of the CPC. The above Rules are being extracted hereunder:- 37. Discretionary power to permit judgment-debtor to show cause against detention in prison (1) Notwithstanding anything in these rules, where an application is for the execution of a decree for the payment of money by the arrest and detention in the civil prison of a judgment-debtor who is liable to be arrested in pursuance of the application, the Court shall, instead of issuing a warrant for his arrest, issue a notice calling upon him to appear before the Court on a day to be specified in the notice and show cause why he should not be committed to the civil prison: Provided that such notice shall not be necessary if the Court is satisfied, by affi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s imperative, before he could be committed to civil prison. In fact, according to learned counsel, rule 40 extracted above, affords an opportunity to the judgment-debtor to lead evidence in order to demonstrate, why he should not be committed to civil prison. Based on the aforementioned assertions, it was sought to be contended, that since no procedure, of the nature referred to hereinabove, had been followed before issuing the order dated 4.3.2014, the said order must be treated as void, as it must be deemed to have been passed in violation of the mandatory procedure, established by law. 64. In order to support his above submissions, learned Senior Counsel also placed reliance on Supreme Court Rules, 1966. He invited our attention to Order XIII rule 6, which is being reproduced hereunder:- Order XIII Judgments, decrees and Orders 6. The decree passed or order made by the Court in every appeal, and any order for costs in connection with the proceedings therein, shall be transmitted by the Registrar to the Court or Tribunal from which the appeal was brought, and steps for the enforcement of such decree or order shall be taken in that court or Tribunal in the way prescri ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e construed as powers which authorise the Court to ignore the substantive rights of a litigant while dealing with a cause pending before it. This power cannot be used to supplant substantive law applicable to the case or cause under consideration of the court. Article 142, even with the width of its amplitude, cannot be used to build a new edifice where none existed earlier, by ignoring express statutory provisions dealing with a subject and thereby to achieve something indirectly which cannot be achieved directly. Punishing a contemner advocate, while dealing with a contempt of court case by suspending his licence to practice, a power otherwise statutorily available only to the Bar Council of India, on the ground that the contemner is also an advocate, is, therefore, not permissible in exercise of the jurisdiction under Article 142. The construction of Article 142 must be functionally informed by the salutary purpose of the Article, viz., to do complete justice between the parties. It cannot be otherwise. As already noticed in a case of contempt of court, the contemner and the court cannot be said to be litigating parties. Reliance was also placed by the learned Senior Couns ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... two years from the date of framing of the charges and all the State appeals were allowed by the High Court without noticing the respective accused persons. In the factual scenario noticed hereinabove, this Court recorded its conclusions, in respect of the power available to Constitutional Courts, by recording the following observations:- 27. Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32, 21, 141 and 142 of the Constitution. The dividing line is fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Code of Civil Procedure, 1908 (5 of 1908), but shall be guided by the principles of natural justice and, subject to the other provisions of this Act and of any rules, the Securities Appellate Tribunal shall have powers to regulate their own procedure including the places at which they shall have their sittings. (2) The Securities Appellate Tribunal shall have, for the purposes of discharging their functions under this Act, the same powers as are vested in a Civil Court under the Code of Civil Procedure, 1908 (5 of 1908), while trying a suit, in respect of the following matters, namely: (a) summoning and enforcing the attendance of any person and examining him on oath; (b) requiring the discovery and production of documents; (c) receiving evidence on affidavits; (d) issuing commissions for the examination of witnesses or documents; (e) reviewing its decisions; (f) dismissing an application for default or deciding it ex parte; (g) setting aside any order of dismissal of any application for default or any order passed by it ex parte; (h) any other matter which may be prescribed. (3) Every proceeding before the Securities Appellate Tribunal shall be de ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cuting even the appellate order(s) passed by this Court under Section 15Z of the SEBI Act. It was when the legal position stood thus, that the question of execution of the orders dated 31.8.2012 and 5.12.2012 arose (during the pendency of Contempt Petition (Civil) nos. 412 and 413 of 2012 and Contempt Petition (Civil) no. 260 of 2013). 68. It is in the above background, that we shall first determine the submissions advanced by learned Senior Counsel, based on Section 51 of the CPC. First and foremost, the procedure contemplated under Section 51 of the CPC has not been adopted by the SEBI Act, either expressly or impliedly. Secondly, Section 51, deals with the power of a Civil Court to enforce execution of money-decrees rendered by a Civil Court. Herein, we are concerned with the execution of orders emanating from the provisions of the SEBI Act, and not out of orders in proceedings, initiated before a Civil Court. Insofar as the SEBI Act is concerned, as already noticed hereinabove, Section 15Y totally excludes the jurisdiction of Civil Courts, in respect of subjects governing investors' interest and the regulation of the securities market. There can, therefore be no doubt th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... execution of the liability resting on the shoulders of the two companies, was therefore clearly made out, before the impugned order dated 4.3.2014 was passed. 71. Another alternative pre-condition contemplated in the proviso to Section 51 of the CPC is, when a judgment-debtor has the means to pay the amount of the decree (or some substantial part thereof), and yet refuses or neglects to pay the same. Insofar as the instant aspect of the matter is concerned, the two concerned companies could have easily paid the contemplated amounts, by selling their assets (in terms of their affidavit dated 4.1.2012). It is also relevant to mention, that in the affidavits filed by the two concerned companies before the SAT on 14.9.2011 (taken from Volume II of additional documents filed by the respondents in Contempt Petition (Civil) no. 412 of 2012), it was acknowledged on behalf of the two companies, that the book value/market value of their properties as on 30.8.2011 were as under:- Book Value Market Value SHICL (Rs. in Crores) (Rs. in Crores) (i) Investments ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e SAT, or even by this Court. When SIRECL was required to disclose the manner in which it had made payments by way of redemption to the OFCD's holders, the following sources were disclosed:- Rupees (In Crores) 1. Sahara Credit Co-operative Society Ltd. 13,366.18 2. Sahara India Commercial Corporation Limited 4384.00 3. Sahara Q Shop 2258.32 4. Ketak City Homes Ltd. 19.43 5. Kirit City Homes Ltd. 44.05 Likewise, when similar information about redemptions was sought from SHICL, the following sources were disclosed:- Rupees (In Crores) 1. SICCL 2479.00 2. Sahara Q Shop 2411.90 At the cost of repetition we may record, that when asked the manner in which the companies had forwarded the above mentioned payments to the two companies, the response was, that the above amounts were never ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hree different conditions contemplated in the proviso to Section 51 of the CPC, were satisfied, before we ordered the arrest and detention of the contemnors, for enforcement of the orders passed by this Court. Satisfaction of any one of the conditions, expressed in the foregoing three paragraphs, would have been sufficient to order the arrest and detention of the petitioner, under Section 51 of the CPC. Our instant determination should not be understood to mean, that Section 51 of the CPC is applicable to the facts and circumstances of this case. The instant determination should only be understood to mean, that the parameters laid down in Section 51 of the CPC, stood fully satisfied, before the arrest and detention order dated 4.3.2014 was passed. 74. For the same reasons as have been recorded in the foregoing paragraph, even rules 37 and 40 of Order XXI of the CPC, would be inapplicable for the execution of this Court's orders dated 31.8.2012 and 5.12.2012. Firstly, because the above provisions of the CPC, relating to execution, have not been made applicable for enforcement of orders passed under the SEBI Act. Secondly, a perusal of rule 37(1) of Order XXI of the CPC reveal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etitioner, is therefore wholly misconceived. The above deliberations, should not be understood to mean, that the aforesaid provisions of the CPC, relied upon by the learned counsel, were applicable to this case. The above deliberations only demonstrated, that the parameters laid down in the above provisions cannot be stated to have been disregarded, when the impugned order dated 4.3.2014 was passed. 75. Insofar as rule 6 of Order XIII of the Supreme Court Rules, 1966, is concerned, the same mandates the enforcement of an order passed by this Court, by transmitting the order to be enforced to the Court or Tribunal in the way prescribed by law . We have already concluded hereinabove, that no executing mechanism was in place under the provisions of the SEBI Act, when the orders dated 31.8.2012 and 5.12.2012 were passed. Thus viewed, even rule 6 of Order XIII of the Supreme Court Rules, 1966 would be inapplicable to deal with the issue in hand, as it was not possible for this Court to transmit to the Court or Tribunal from which the appeal was brought ... for execution of this Court's orders dated 31.8.2012 and 5.12.2012. 76. The orders dated 31.8.2012 and 5.12.2012, cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ch a procedure is inferable from Article 11 of the Covenant. But this is precisely the interpretation we have put on the proviso to Section 51 C.P.C. and the lethal blow of Article 2 1 cannot strike down the provision, as now interpreted. 11. The words which hurt are or has had since the date of the decree, the means to pay the amount of the decree . This implies, superficially read, that if at any time after the passing of an old decree the judgment-debtor had come by some resources and had not discharged the decree, he could be detained in prison even though at that later point of time he was found to be penniless. This is not a sound position apart from being inhuman going by the standards of Article 11 (of the Covenant) and Article 21 (of the Constitution). The simple default to discharge is not enough. There must be some element of bad faith beyond mere indifference to pay, some deliberate or recusant disposition in the past or, alternatively, current means to pay the decree or a substantial part of it. The provision emphasizes the need to establish not mere omission to pay but an attitude of refusal on demand verging on dishonest disowning of the obligation under the decr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whose personal liberty is imperilled by the judicial process itself, thanks to Section 51 (Proviso) and Order 21, Rule 37, Civil Procedure Code. Here is an appeal by judgment-debtors- the appellants - whose personal freedom is in peril because a court warrant for arrest and detention in the civil prison is chasing them for non-payment of an amount due to a bank - the respondent, which has ripened into a decree and has not yet been discharged. Is such deprivation of liberty illegal? ** ** ** 4. The facts. The judgment-debtors (appellants) suffered a decree against them in O.S. No. 57 of 1972 in a sum of Rs.2.5 lakhs, the respondent-bank being the decree-holder. There are two other money decrees against the appellants (in O.S. 92 of 1972 and 94 of 1974), the total sum payable by them being over Rs.7 lakhs. In execution of the decree in question (O.S. 57 of 1972) a warrant for arrest and detention in the civil prison was issued to the appellants under Section 51 and Order 21, Rule. 37 of the Civil Procedure Code on June 22, 1979. Earlier, there had been a similar warrant for arrest in execution of the same decree. Besides this process, the decree-holde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion of the decree. While dealing with the preconditions expressed in the proviso to Section 51 of the CPC, we have already concluded, that the Sahara Group has enormous assets with a huge market and marketable value. It is also clear that after 5.12.2012, the two companies have not deposited a single paisa, in furtherance of the compliance of this Court's orders (dated 31.8.2012 and 5.12.2012). It is therefore clear, that despite the petitioner (and the other companies) having means to pay, they have unfairly and willfully failed to pay. It is, therefore also clear, that the petitioner in the present case is not similarly situated as the petitioner in Jolly George Verghese's case (supra). Accordingly reliance placed by the learned counsel for the petitioner on the above judgment, is wholly misconceived. VII. Whether the impugned order dated 4.3.2014, was passed in violation of the rules of natural justice? 78. While arguing on merits, the very first plea advanced on behalf of the petitioner was, that the order of detention dated 4.3.2014 was passed all of a sudden, without affording any opportunity to the petitioner. Dr. Rajeev Dhawan, learned Senior Counsel, who s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... course of hearing, learned counsel for the petitioner, addressed a number of queries to the Bench. Has any person ever been committed to jail, without knowing what offence he had committed? The whole of the criminal law is codified, has anybody ever been incarcerated, except according to the procedure laid down in the Cr.P.C.? What offence, punishable under what provision of law, has the petitioner committed, that you have sent him to jail? Can an order of arrest and detention be passed orally , without there being any writing , without there being any notice , without any opportunity to reply to the same? You have done all this, and more , we were told. What has been done by this Court on 4.3.2014, according to learned counsel, was a blunder which needed to be revised. Dr. Rajeev Dhawan then affirmed, confirmed and repeated what his colleague had submitted. He informed us, Mr. Ram Jethmalani is right we all make mistakes... . He went on to state we tell very rarely, what we have had to tell this Bench, that it has gone terribly terribly wrong... He, however, reminded us, that every extraordinary situation, has to be dealt with, in an equally extraordinary manner i.e., ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... void order, that needed to be corrected. We would like to acknowledge, that all this was possible because of the legal acumen possessed by learned Senior Counsel. If what was stated was correct, no Court would have any hesitation to correct such an error. The Court was an unconnected disinterested party. The Court would neither gain nor loose, if the contentions advanced by the petitioner, were to be accepted. In such an eventuality, by rendering the correction, the purpose of law would be served, justice would be done. We would never ever, refrain from rising to such an occasion. But if the factual position on the basis whereof the assertions were made, was found to be incorrect, learned Senior Counsel would most definitely have committed a terrible professional mistake. We say so, because Mr. Ram Jethmalani and Dr. Rajeev Dhawan, learned Senior Counsel, attended each date of hearing, of the proceedings in Contempt Petition (Civil) nos. 412 and 413 of 2012 and Contempt Petition (Civil) no. 260 of 2013, and were personally aware of the day to day happenings. 82. Now the merits of the contention. Interlocutory Application nos. 68 and 69 of 2013 in Civil Appeal no. 9813 of 2011 we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is willfully and intentionally not paying the amount (emphasis is ours) In paragraph 4 of the counter affidavit filed by the petitioner - Mr. Subrata Roy Sahara, to Interlocutory Application nos. 68 and 69 of 2013, it was submitted:- Without prejudice to the aforesaid, I further submit that, there would be no warrant or justification for SEBI to seek reliefs as they have prayed for. In the first place, all my assets have already been attached by SEBI and particulars of which are given to SEBI in compliance of its order. It is neither allegation of SEBI that I have secreted away any assets, nor any part of moneys received by SIRECL/SHICL from the investors has been diverted to me. Whilst so there is no case made out by SEBI, for the orders as sought by SEBI. Apart from the aforesaid, I also submit that I am businessman, holding Indian passport residing in India and most of my assets and businesses are in India. My entire family and home, is also in India. While so there cannot be any apprehension, leave alone reasonable apprehension/ground requiring my detention or restrain on any travel as sought for. In absence of any such reasonable apprehension, I submit that the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... /2013 (titled Ashok Roy Chaudhary Ors., SEBI) pending before the Securities Appellate Tribunal Mumbai and W.P. No.2088 of 2013 (titled Sahara India Lucknow Anr., v. SEBI) pending before the High Court of Judicature at Allahabad, which shall stand transferred to this Court. We make it clear that no High Court, Securities Appellate Tribunal and any other Forum shall pass any orders against the orders passed by Securities and Exchange Board of India (SEBI) in implementation of this Court's judgment dated 31.08.2012. The above order was considered essential because it seemed to us, that the petitioner was unnecessarily opening and extending the litigation pertaining to the execution of order dated 31.8.2012, to other Fora including the High Court. 86. The matter was then taken up for hearing on various dates including 24.7.2013, 30.7.2013, 6.8.2013, 13.8.2013, 26.8.2013, 2.9.2013, 16.9.2013, 4.10.2013 and 28.10.2013. On all the above dates, Interlocutory Application nos. 68 and 69 of 2013, were actually posted for hearing. By now, enough time had been afforded to the petitioner to solicit compliance of the orders passed by this Court. Rather than actual compliance by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ack before the expiry of the period of three weeks, if the directions issued by us in the order dated 28.10.2013 were not complied with. An extract of the above order dated 1.11.2013 is being reproduced hereunder:- For the reasons indicated in para 4 of the application, we make it clear that it is open for the alleged contemnor No.5 in Contempt Petition (Civil) Nos. 412 and 413 of 2012 to go abroad, but, in the event of non-compliance of the directions contained in the order dated October 28, 2013, he shall immediately return back and be present in the country before the expiry of the period of three weeks, as indicated in the said order. (emphasis is ours) It is therefore apparent, that this Court did not wish any harm to the petitioner. The requests made by him were duly considered, and appropriate orders were passed, to ensure that his business ventures would not be adversely affected. 88. The matter was taken up for hearing thereafter, on 20.11.2013 and 21.11.2013. On 21.11.2013, finding the conduct of the petitioner and the other contemnors unacceptable, and in complete disregard with the order passed by us on 28.10.2013, we issued further directions on 21.11.201 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sel appearing for one of the alleged contemnors, submitted that earlier this Court on December 11, 2013 has only reiterated the submission made by Mr. Arvind Datar, learned Senior Counsel appearing for SEBI, that they did not disclose the source from which they got money for repayment, despite SEBI's letter dated May 28, 2013. Mr. Sundaram is right in his submission. However, we feel that it would be appropriate to give a direction of the nature stated above. Accordingly, we direct the alleged contemnors to disclose the complete details and source from which they repaid the amount to the investors as also the manner of making payments. They shall also disclose the information which SEBI has sought from them from time to time. Such information shall be provided to SEBI and also be filed in this Court by January 23, 2014. Put up on January 28, 2014 at 2.00 p.m. In the meantime, SEBI shall verify the information provided to it by the alleged contemnors. It is imperative for us to give the background explaining why the order extracted hereinabove came to be passed. In this behalf it is relevant to mention, that Mr. Arvind Datar, learned Senior Counsel appearing for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Sahara India Commercial Corporation Limited 4384.00 3. Sahara Q Shop 2258.32 4. Ketak City Homes Ltd. 19.43 5. Kirit City Homes Ltd. 44.05 Similarly, SEBI requires Saharas to show the following payments made on behalf of Sahara Housing Investment Corporation Ltd. (SHICL) (partnership firm), by the following firms, as mentioned below:- Rupees (In Crores) 1. SICCL 2479.00 2. Sahara Q Shop 2411.90 Further, the Saharas will also provide the bank statements of the above firms showing when the amount was paid to the partnership firms and subsequently when and how partnership firm made the disbursement, as sought for by the SEBI. Mr. Ram Jethmalani, learned Senior Counsel appearing for the respondents submitted that he will examine the same and come out with a response within a week. (emphasis is ours) The above orde ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tive, insofar as the implementation of its orders dated 31.8.2012 and 5.12.2012 was concerned. Accordingly the personal presence of the alleged contemnors was ordered. This was yet another order, in the line of orders passed by us, this time sterner than the previous ones. Yet again, aimed at cajoling compliance of the orders dated 31.8.2012 and 5.12.2012. On all the earlier dates of hearing, as also on 20.2.2014, Interlocutory Application nos. 68 and 69 of 2013 were posted for hearing. It was evident, that the order dated 20.2.2014 was passed by this Court, in furtherance of the prayers made in the above Interlocutory Applications. A relevant portion thereof is reproduced hereunder:- Heard Mr. Ram Jethmalani and Mr. C.A. Sundaram, learned Senior Counsel appearing for the alleged contemnors and Mr. Arvind P. Datar, learned Senior Counsel appearing for SEBI. In view of the conflicting stands taken by the Senior Counsel appearing for the alleged contemnors and the defiant and non-cooperative attitude adopted by the contemnors in honouring the judgment dated August 31, 2012, passed by this Court as well as orders dated December 05, 2012 and February 25, 2013 passed in Civil App ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... declined to grant exemption from personal presence of alleged contemnor No.5 on February 25, 2014, we find no reason to accede to the renewal of the request made today. Accordingly, we issue non-bailable warrants of arrest qua Mr. Subrata Roy Sahara, alleged contemnor No.5. He shall be arrested and produced before this Court on March 04, 2014 at 2.00 p.m. The afore-mentioned Directors, who are present today, shall also remain present in Court on the next date. Put up on March 04, 2014 at 2.00 p.m. (emphasis is ours) On 4.3.2014, all the contemnors were present. Not only were learned counsel appearing for the petitioner permitted to address arguments, we afforded an opportunity of hearing to each of the directors present in Court, as also, Mr. Subrata Roy Sahara. In the facts and circumstances of the controversy it needs to be noticed, that Mr. Subrata Roy Sahara was repeatedly heard on 4.3.2014, as and when he desired to express his view, till he had nothing further to state. 93. It is thereupon that the impugned order dated 4.3.2014 extracted at the beginning of this order, was passed. 94. Based on the factual position noticed in the foregoing paragraphs, it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ta Roy Sahara. We were satisfied, that the above order was necessary to ensure the observance of the due process of law, in the facts and circumstances of the case. The above order was also imperative, if we were to perform our duties and functions effectively, and if we were to maintain the majesty of law and/or the dignity of the Supreme Court. 96. It is not possible for us to accept, that while passing the above order, no opportunity was afforded to the petitioner - Mr. Subrata Roy Sahara. Indeed every response made by the alleged contemnors, was taken into consideration on each occasion. The alleged contemnors were found to be playing tricks with this Court. Not only were learned counsel representing the alleged contemnors heard from time to time, personal hearing was also afforded to the directors and Mr. Subrata Roy Sahara, the petitioner herein on 4.3.2014. In fact, Mr. Subrata Roy Sahara, the petitioner herein, was heard repeatedly to his heart's content, before the order dated 4.3.2014 was passed. For the reasons recorded hereinabove, it is not possible for us to accept the contention advanced at the hands of the learned counsel for the petitioner, that the order da ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er or not the respondents therein (including the present petitioner) were actually guilty of contempt, one of the Judges hearing the matter (J.S. Khehar, J.), had presumably in agreement with the other Judge on the Bench (K.S. Radhakrishnan, J.) informed learned counsel, that the issue as to whether the respondents in the above petitions, had committed contempt or not, would only be considered after the Court's satisfaction, that the orders dated 31.8.2012 and 5.12.2012 had been complied with. It was the submission of the learned Senior Counsel for the petitioner, that when the petitioner's detention was ordered on 4.3.2014, neither the petitioner nor his counsel understood the purpose for which the petitioner, as promoter of the two companies, and the other directors of the two companies, had been summoned to this Court. Besides the above stated factual submission, it was also the contention of the learned Senior Counsel for the petitioner, that the petitioner is still unaware, of the reasons for which his detention has been ordered. 100. It was submitted, that under the stress created by the order passed by this Court on 4.3.2014, by which the petitioner's liberty ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was accordingly sought to be suggested, that only an illusory hearing, in total defiance of the rules of natural justice, was afforded to the petitioner, and the other contemnors/respondents. Based on the above premise, it was the submission of the learned Senior Counsel for the petitioner, that on account of the lack of confidence of the petitioner, in this Bench, it would be improper for this Bench to hear the present case on its merit, and to render judgment thereon. 101. In order to support his above contention, and to bring forth the principles enunciated by this Court, which were relevant to the present case, Mr. Ram Jethmalani, learned Senior Counsel, placed reliance on Manak Lal v. Dr. Prem Chand, (1957), SCR 575. Inviting the Court's attention to the factual background of the controversy in the above case, it was brought out, that Dr. Prem Chand, the respondent, had filed a complaint against Manak Lal, the petitioner, under the Bar Councils Act. During the course of adjudication, both the Members of the Tribunal (under the Bar Councils Act) and the Judges of the High Court of Rajasthan, accepted the complainant's version, and rejected the pleas raised by Manak L ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... It is obvious that pecuniary interest, however small it may be in a subject-matter of the proceedings, would wholly disqualify a member from acting as a judge. But where pecuniary interest is not attributed but instead a bias is suggested, it often becomes necessary to consider whether there is a reasonable ground for assuming the possibility of a bias and whether it is likely to produce in the minds of the litigant, or the public at large a reasonable doubt about the fairness of the administration of justice. It would always be a question of fact to be decided in each case. The principle says Halsbury, nemo debet esse judex in causaproprta sua precludes a justice, who is interested in the subject matter of a dispute, from acting as a justice therein (Halsbury's Laws of England, Vol. XXI, page 535, para 952). In our opinion, there is and can be no doubt about the validity of this principle and we are prepared to assume that this principle applies not only to the justices as mentioned by Halsbury but to all tribunals and bodies which are given jurisdiction to determine judicially the rights of parties. (emphasis is ours) In Manak Lal's case (supra), reliance was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ciple was enunciated with equal emphasis in Rex v. Essex Justices, Ex parte Perkins. This was a dispute between a husband and his wife and it appeared that the wife had consulted the solicitor's clerk in their office about the preparation of a deed of separation from her husband and the lawyer acted in the matter for a time after which she ceased to consult him. No mention of the matter was made to the solicitor himself except one very short reference to it in a weekly report from his clerk. Subsequently the solicitor acted as a clerk to the justices who tried the case. He stated in his affidavit that, when acting as a clerk to the justices on the occasion in question, he had no knowledge that his firm had acted for the wife and that he was in no way adverse to the husband. It was urged that the decision of the justices should be set aside as the justices were not properly constituted and it appears also to have been suggested that the decision might, perhaps, have been influenced by a prejudice though indirectly and to a very small extent. Rejecting the argument that the decision of the justices had been influenced even remotely by the impropriety alleged, Avory J. stated that ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d bank be furnished in favour of S.E.B.I. and be deposited before this Court. On compliance, the contemnors be released forthwith and the amount deposited be released to S.E.B.I. We make it clear that this order is passed in order to facilitate the contemnors to further raise the balance amount so as to comply with the Court's Orders mentioned above. (emphasis is ours) It was submitted, that the above order passed by this Court was an impossible order. Because it was impossible to implement. It was submitted, that even after the passing of the above order, the petitioner had repeatedly sought modification thereof, through further proposals. In order to demonstrate bias at the hands of the Bench, it was contended, that all subsequent proposals made by the petitioner were rejected unceremoniously. This, according to the learned Senior Counsel for the petitioner demonstrates, that the mind of the Judges hearing the matter was closed, and that, even genuine proposals made by the petitioner were being rejected, without due application of mind. 103. All that has been noticed hereinabove, has been so recorded, lest we are accused of, not having taken into consideration th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ich would directly affect the petitioner herein, no allegation of bias was ever levelled against this Bench hither to before. We are therefore, satisfied that the instant plea of bias, is based on the petitioner's frustration, arising out of being cornered into a situation, wherefrom there is no escape. 106. The assertion, that we would not be satisfied under any circumstances, with the petitioner's arguments and submissions on merits, is clearly misconceived. The assertion made by the petitioner, that we had already prejudged the matter, and no relief could be expected from us, is likewise a total misconstruction of the proceedings we are dealing with. It needs to be understood, that there is no lis pending before us, wherein we have to determine the merits of the claims raised by the rival parties. In a situation, where rival claims of parties, have to be decided on merits, such a submission could have possibly been made. Merits of the claims (and counter-claims) have already been settled by this Court's order dated 31.8.2012. The proceeding wherein the impugned order was passed, was being conducted in the contempt jurisdiction of this Court (under Article 129 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... r or his learned counsel. Accordingly the factual position, which was the basis of the decisions relied upon by the learned counsel, is not available in the facts and circumstances of this case. In the above view of the matter, it is but natural to conclude, that none of the judgments relied upon by the learned Senior Counsel for the petitioner, on the subject of bias, are applicable to the facts and circumstances of this case. We are satisfied that none of the disguised aspersions cast by learned Senior Counsel, would be sufficient to justify the invocation of the maxim, that justice must not actually be done, but must also appear to be done. As already noticed above, even though our combination as a Bench, did not exist at the time, when the present petition was filed, a Special Bench, with the present composition, was constituted by Hon'ble the Chief Justice, as a matter of his conscious determination. No litigant, can be permitted to dissuade us, in discharging the onerous responsibility assigned to us by Hon'ble the Chief Justice. 108. Once it is understood, that we are no longer possessed with any adjudicatory role, insofar as the controversy on merits is concerned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned Senior Counsel for the petitioner, that we are unrelenting, or that we are pre-disposed, or that we have a closed mind, is therefore, just a bogey projected by learned Senior Counsel representing the petitioner. As a matter of fact, by our conscious effort, we have unilaterally relaxed the rigor of the first installment of Rs.10,000 crores, as much as we could, by our order dated 26.3.2014. Unfortunately, the above order is also not acceptable to the petitioner. But acceptability apart, our above voluntary action of slackening the effect of the first installment, directed to be paid by the two companies, within the first week of January 2013, is clearly sufficient to repudiate and reject, all submissions in the nature of our having a predisposed mind. 109. While rendering the instant judgment, we have recorded the efforts made by this Court to cajole the contemnors (including the present petitioner) into compliance of this Court's orders dated 31.8.2012 and 5.12.2012, under an independent heading (IV. Efforts made by this Court to cajole the contemnors, including the petitioner - Mr. Subrata Roy Sahara, for compliance of the orders of this Court, dated 31.8.2012 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... arned counsel for the petitioner to the effect, that our order dated 26.3.2013 cannot be complied with, because it was premised on impossible conditions, is wholly unjustified. The assets of the Sahara Group are sufficient to discharge the entire liability, without much difficulty. 110. Insofar as the assertion made by Dr. Rajeev Dhawan, learned Senior Counsel, that the factual position expressed in the order dated 4.3.2014 was not correct, is concerned, we may at the cost of repetition once again notice, that it is also important for us to record that the positive position expressed by the SEBI before this Court (during the disposal of Civil Appeal Nos.9813 and 9833 of 2011) was, that neither SIRECL nor SHICL ever provided details of its investors to the SEBI (FTM). They contested the proceedings initiated by the SEBI (FTM) only on technical grounds. We were told that even before the SAT, no details were furnished. As against the above, the position adopted by the SIRECL before us, during the course of appellate proceedings was, that SIRECL had furnished a compact disc with all details to the SEBI (FTM), along with its operating key. Whilst it was acknowledged by the SEBI befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... EBI (WTM) if, after the verification of the details furnished, is unable to find out the whereabouts of all or any of the subscribers, then the amount collected from such subscribers will be appropriated to the Government of India. (emphasis is ours) If the other side , is the Government of India, there is certainly no substance in the aspersion cast by the learned counsel. Just the above aspect of the matter is sufficient to burst the bubble, of all the carefully crafted insinuations, systematically offloaded, by learned counsel, for effect and impact. 112. At this juncture we may refer to a decision of this Court which has a bearing on the subject in hand. Reference is being made to the observations made by this Court, in Jaswant Singh v. Virender Singh Ors., 1995 Supp. (1) SCC 384:- 32. Before parting with this judgment, there is however, one matter which has caused us considerable concern and we wish to advert to it. After the recount had been ordered by the learned Single Judge in the High Court and the Deputy Registrar had carried out the inspection of the ballot papers of the specified booths, the appellant filed an application in the High Court under Sectio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... plication seeking stay as also of the transfer petition, bring the Court into disrepute and are an affront to the majesty of law and offend the dignity of the Court. The appellant is an Advocate and it is painful that by filing the application and the petition as a party in person, couched in an objectionable language, he permitted himself the liberty of indulging in an action, which ill behoves him and does little credit to the noble profession to which he belongs. An advocate has no wider protection than a layman when he commits an act which amounts to contempt of court. It is most unbefitting for an advocate to make imputations against the Judge only because he does not get the expected result, which according to him is the fair and reasonable result available to him. Judges cannot be intimidated to seek favorable orders. Only because a lawyer appears as a party in person, he does not get a license thereby to commit contempt of the Court by intimidating the Judges or scandalising the courts. He cannot use language, either in the pleadings or during arguments, which is either intemperate or unparliamentary. These safeguards are not for the protection of any Judge individually but ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... poration Limited and its promoter, Mr. Subrata Roy Sahara, and the directors of the said companies, namely, Ms. Vandana Bhargava, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary, jointly and severally, shall forthwith refund the money collected by the aforesaid companies through the Red Herring Prospectus dated March 13, 2008 and October 6, 2009, issued respectively, to the subscribers of such Optionally Fully Convertible Debentures with interest of 15% per annum from the date of receipt of money till the date of such repayment. 2. Such repayment shall be effected only in cash through Demand Draft or Pay Order. 3. Sahara Commodity Services Corporation Limited (earlier known as Sahara India Real Estate Corporation Limited) and Sahara Housing Investment Corporation Limited shall issue public notice, in all editions of two National Dailies (one English and one Hindi) with wide circulation, detailing the modalities for refund, including details on contact persons including names, addresses and contact details, within fifteen days of this Order coming into effect. 4. Sahara Commodity Services Corporation Limited (earlier known as Sahara India Real Estate Corporation Limited) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the direction to refund (ordered by the SEBI (FTM) and the SAT), came to be stayed. But the orders of the SEBI (FTM) and SAT were not interfered with, in any other manner. It is, therefore clear, that this Court while passing the above interim order, did not vary the manner of making the refunds (in case the two companies concerned, decided to make any refund(s) to the investors). In this behalf it needs to be noticed, that in its order dated 23.6.2011 the SEBI (FTM) had clearly directed, that such repayment could only be made in cash through demand draft or pay order . The SAT had reiterated the above position. No liberty was granted to the two companies concerned, to convert the investment made by the holders of the OFCD's, into similar investments with the other companies. In other words cash conversion in any other format, was not permitted. To comply with the letter and spirit of law, therefore, even if the refund had to be made by the two concerned companies, it could have been done only through demand drafts or pay orders. The alleged cash payment made by the two companies while redeeming the OFCD's (even if we assume, that refund had actually been made) was ther ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d in their above affidavits, that the total amount which would become redeemable, towards the end of the financial year 2012-13, was only Rs.351 crores. There was therefore, no question of redeeming thousands of crores of rupees of deposits made towards the above OFCD's, in 2012 itself. It needs to be understood, that a debenture (OFCD) is a contract between a company and the debenture holder. It sets out the terms and conditions on the basis of which, the debenture certificate, which is a debt instrument, has been issued. It is neither open to the concerned company, nor the debenture holder, to grant/seek premature redemption. No company can unilaterally redeem the debentures, before the prescribed period. The theory of redemption propounded by the two companies, is therefore in clear violation of law. In any case, there was no reason for the two companies to refund any money to the investors, specially because the two companies were protected by an order of this Court, from making any refund to the investors, during the pendency of the appellate proceedings (Civil Appeal Nos. 9813 and 9833 of 2011), which continued up to 31.8.2012. A submission was, however, made during the c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xplain the manner in which the companies had forwarded the funds to Sahara India (Firm), the submission was, that the companies had collected the funds by way of cash, and had forwarded the same to Sahara India (Firm), by cash. And Sahara India (Firm) had then directly made refunds to the investors. When proof of the same was sought, the submission advanced on behalf of the two companies was, that the above transfers were not made through banking channels, and therefore banking transactions were not available to establish the same. When asked how the amounts were disbursed to the investors concerned, it was submitted, that about 95% of the above payments to the investors, were also made by way of cash. To demonstrate the receipts and payments of the funds by way of cash, learned counsel representing the contemnors (including the petitioner herein), invited our attention to the books of accounts, which had been duly audited. This according to learned counsel, was proof of the transactions under reference. The above explanation may seem to be acceptable to the contemnors, but our view is quite the converse. It is not possible for us to accept, that the funds amounting to thousands of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... informed, that we had not passed any express direction to the companies, to furnish the information, therefore the companies were not obliged to provide the information to the SEBI. Ordinarily, an honest person would immediately provide the information sought, to obviate any adverse impression. Moreover, the SEBI had not only the authority, but every reason to seek the said information. The above stance adopted by the two companies, therefore, prompted us on 9.1.2014 to pass an express order directing the two companies, as also, the alleged contemnors (including the present petitioner), to furnish the required particulars. The order dated 9.1.2014 is being extracted below:- Heard counsel on either side. Mr. C.A. Sundaram, learned Senior Counsel appearing for one of the alleged contemnors, submitted that earlier this Court on December 11, 2013 has only reiterated the submission made by Mr. Arvind Datar, learned Senior Counsel appearing for SEBI, that they did not disclose the source from which they got money for repayment, despite SEBI's letter dated May 28, 2013. Mr. Sundaram is right in his submission. However, we feel that it would be appropriate to give a direction ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Similarly, SEBI requires Saharas to show the following payments made on behalf of Sahara Housing Investment Corporation Ltd. (SHICL) (partnership firm), by the following firms, as mentioned below:- 1. SICCL 2479.00 2. Sahara Q Shop 2411.90 Further, the Saharas will also provide the bank statements of the above firms showing when the amount was paid to the partnership firms and subsequently when and how partnership firm made the disbursement, as sought for by the SEBI. Mr. Ram Jethmalani, learned Senior Counsel appearing for the respondents submitted that he will examine the same and come out with a response within a week. (emphasis is ours) The above order is self-explanatory. The two companies, as also, the contemnors including the present petitioner, were obviously not providing the required bank statements, even though in Appeal no. 49 of 2013 filed by SIRECL before the SAT, and in Appeal no. 48 filed by SHICL before the SAT, the two companies had committed to furnish their bank accounts, to establish re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... (the sole cheque entry has been underlined, all the remaining entries are cash entries). A perusal of the above general ledger entries reveals just one cheque entry, and enormous inflow/outflow of funds by way of cash. On a single day (31.5.2012), the cash inflow is shown as Rs.15,535,89,65,601.00 (i.e. more than rupees fifteen thousand five hundred and thirty five crores). Mind boggling inflows, just by cash. Most certainly not acceptable as true, unless there is authentic supporting material. Can these general ledger entries ever be the basis for accepting, that the entire cash transactions were correct? We do not think so. Mr. S. Ganesh, learned Senior Counsel for the petitioner, was surprisingly in agreement with us. But his pointed submission was, that the above entries assumed authenticity, because they had been duly audited by a firm of Chartered Accountants. Our attention was invited to the two certificates issued by the firm of Chartered Accountants, both dated 31.1.2014, which were placed on the record of the case by the petitioner, for our consideration. The certificate pertaining to SIRECL is being reproduced hereunder:- CA DE Bose in association wi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ooks and records provided to us and also obtained the relevant information and explanation which to the best of our knowledge and belief were necessary to give this certificate. 2. We have relied upon the system and procedure of the company, books, records, documents, bank statements, clarifications, representations, information and statements made available to us and also done verification and scrutiny of the same. Based on the above procedures and verification, we certify that M/s. Sahara Housing Investment Corporation Limited had subscription of Optionally Fully Convertible Debentures of approximately Rs.324.62 crores (covering 91,970 control numbers) through cheque. Further till March, 2013, Rs.14.66 crores (covering 10,501 control numbers) were paid to the Optionally Fully Convertible Debenture holders on account of redemption/pre-redemption through cheque. For De Bose Chartered Accountants Firm Regn. No. 302175E Date: 31.01.2014 Sd/- Place: Kolkata (Subrata De) Partner Membership no. 054962 (emphasis is ours) A perusal of the above certificates reveals, that the above firm of Chartered Accountants, confirmed the redemption of OFCD's ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tinent to mention, that the two companies had approached this Court by filing Civil Appeal no. 8643 of 2012 (and Writ Petition (Civil) no. 527 of 2012). In the said proceedings, the two companies had sought exemption from depositing the amounts, which they had allegedly redeemed. The three-Judge Division Bench, which heard the matter(s), did not accept the redemption theory projected by the two companies. Accordingly, the prayer made by the two companies in Civil Appeal no.8643 of 2012 (and Writ Petition (Civil) no. 527 of 2012) for deduction of the above amount, was not accepted by this Court, when it passed the final order dated 5.12.2012. Accordingly, the companies were directed to deposit the entire balance amount of Rs.17,400 crores. It is, therefore imperative to conclude, that the issue of deduction of allegedly redeemed funds, stood concluded against the two companies, when this Court passed its order dated 5.12.2012. This plea is no longer available to the two companies, in law. To continue to harp on the alleged redemptions, is clearly a misrepresentation, specially when the order dated 5.12.2012 has attained finality. 121. Therefore, viewed from any angle, there is no ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aintainability of the instant petition. He invited our attention to the heading of the petition, which is extracted hereunder: PETITION UNDER THE POWERS OF THIS COURT TO ACT EX DEBITO JUSTITIAE A POWER EXPRESSLY RECOGNIZED BY THE AUTHORITIES MENTIONED IN THE PARA 'A' OF THIS PETITION. It was his vehement contention, that the instant petition does not disclose the provisions under which it had been filed. In this behalf, it was sought to be asserted, that the right to maintain a petition can only emerge from a statutory provision, or a constitutional mandate. It was also submitted that neither a maxim of law, nor a decision of a Court, could create jurisdiction in a Court. 124. The objection of jurisdiction, raised by the learned Senior Counsel representing the SEBI, met with the strangest possible response from the learned Senior Counsel representing the petitioner. It was a response of a nature which we had not experienced in our professional careers as Advocates, or even in approximately one and a half decades of service rendered as Judges. It is necessary to point out, that when the above objection was raised, we had informed learned Senior Counsel representin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uch further orders as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case. Referring to prayer (a) extracted above, it was submitted, that the declaration sought in the instant prayer would be in the nature of a writ of certiorari. Referring to clause (b) of the prayer clause, it was contended, that the declaration sought therein would be in the nature of a writ of certiorarified mandamus. Insofar as prayer clause (c) is concerned, it was asserted, that the prayer sought was in the nature of a writ of habeas corpus. In the above view of the matter, it was the submission of Mr. C.A. Sundaram, that the jurisdiction of this Court to issue writs, could be invoked only under Article 32 of the Constitution of India. As such, it was his submission, that the instant petition be treated as having been filed under Article 32 of the Constitution of India. In other words, the contention of Mr. C.A. Sundaram, learned Senior Counsel was, that the title of the petition be read by including Article 32 of the Constitution of India therein. In fact, it was the pointed submission of the learned counsel, that he should not be taken as having canvassed, that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... le. 129. First and foremost, on the subject of maintainability, we shall determine the veracity of the submissions advanced at the hands of Mr. Ram Jethmalani, Senior Advocate. To substantiate his contention learned counsel placed reliance, only on the judgment rendered by this Court in A.R. Antulay's case (supra). Before examining the decision rendered by this Court in the above judgment, we shall summarise the factual context, in which the aforesaid judgment was rendered. The appellant in the above case, A.R. Antulay was the Chief Minister of the State of Maharashtra from 1980 to 1982. R.S. Nayak belonged to a rival political party. R.S. Nayak filed a complaint before the Additional Metropolitan Magistrate, Bombay, under Sections 161 and 165 of the Indian Penal Code and Section 5 of the Prevention of Corruption Act, as also, under Sections 384 and 420 read with Sections 109 and 120-B of the Indian Penal Code. The complaint was not only against the appellant A.R. Antulay, but also against other known and unknown persons. Since sanction for prosecution had not been granted, the concerned Magistrate refused to take cognizance. To assail the order of the Magistrate, a criminal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y was not a public servant, and therefore, no sanction was required for his prosecution. In the above view of the matter, it is apparent, that this Court set aside the order of discharge passed by the Special Judge, Bombay. This Court accordingly directed the trial Court, to proceed with the trial of the matter. While disposing of the two cases referred to hereinabove, this Court having taken into consideration the fact, that A.R. Antulay had already suffered adversely, as his reputation was tarnished by the imputations levelled against him, for a period of two and a half years (i.e., the period during which the controversy had remained pending), felt that he deserved an expeditious trial. In the aforesaid view of the matter, while disposing of the two matters referred to above, this Court directed, that the cases filed against A.R. Antulay before the Special Judge, Bombay, be withdrawn and be transferred to the High Court of Bombay for trial. The Chief Justice of the High Court of Bombay was also requested, to assign the trial of the matter, to a sitting Judge of the High Court, so as to conclude the matter by holding day-to-day proceedings. Accordingly, trial commenced before a S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he High Court, was in violation of Articles 14 and 21 of the Constitution of India. The contention advanced on behalf of A.R. Antulay was, that he could be tried only in accordance with the procedure established by law. This plea was raised under Article 21 of the Constitution of India. A.R. Antulay relied on Section 7(1) of the Criminal Law Amendment Act, 1952, which expressly provided (notwithstanding anything contained in the Code of Criminal Procedure or any other law), that the offences under Section 6(1) would be triable by a Special Judge only. It was, therefore, sought to be asserted, that his trial by the Single Judge of the High Court, was in clear violation of his constitutional rights, and the aforesaid legislative mandate. A.R. Antulay alleged prejudice by asserting, that four of his valuable rights had been taken away when this Court had passed the direction, whereby his trial was withdrawn from the Court of the Special Judge, Bombay, and transferred to the High Court. In this behalf, it was his contention, that he was deprived of the right to trial by a Special Judge, in accordance with the procedure established by law, i.e., procedure which had been enacted by Parli ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 64] 1 SCR 495 which detract the power of the court to review its judgment ex debito justitiae in case injustice has been caused. No court, however high, has jurisdiction to give an order unwarranted by the Constitution and, therefore, the principles of Bhatia Co- operative Housing Society Ltd. v. D. C. Patel, (1953) SCR 185, would not apply. 80. ln giving the directions this Court infringed the constitutional safeguards granted to a citizen or to an accused and injustice results therefrom. It is just and proper for the court to rectify and recall that injustice, in the peculiar facts and circumstances of this case. 81. This case has caused us considerable anxiety. The appellant-accused has held an important position in this country, being the Chief Minister of a premier State of the country. He has been charged with serious criminal offences. His trial in accordance with law and the procedure established by law would have to be in accordance with the 1952 Act. That could not possibly be done because of the directions of this Court dated February 16, 1984, as indicated above. It has not yet been found whether the appellant is guilty or innocent. It is unfortunate, unfortunate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ial procedure not provided for by law. When these factors are brought to the notice of this Court, even if there are any technicalities this Court should not feel shackled and decline to rectify that injustice or otherwise the injustice noticed will remain forever a blot on justice. It has been said long time ago that actus curiae neminem gravabit - an act of the Court shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and certain guide for the administration of the law. ** ** ** 83 .It appears that in giving directions on February 16, 1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of Sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar case, 1952 SCR 284 which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito just ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... a judicial order passed in derogation of the constitutional limitations or in derogation of principles of natural justice, can always be remedied by this Court ex debito justitiae. According to learned counsel, it was imperative for this Court to exercise the above power without insisting on the formalities of the petitioner being required to file a review petition or a curative petition. 131. In addition to the reliance placed by the learned Senior Counsel for the petitioner on the judgment rendered by this Court in A.R. Anutlay's case (supra), he also placed reliance on the judgments of this Court in Supreme Court Bar Association's case (supra), and on M.S. Ahlawat v. State of Haryana Anr., [2000] 1 SCC 278, wherein this Court had recalled its own order, when a litigant had approached it complaining of miscarriage of justice (through an earlier order, passed by this Court). Specially when the earlier order was without jurisdiction and without following due procedure of law. And specially, when the challenged order had resulted in the incarceration of the concerned petitioner. 132. In response to the contentions advanced at the hands of the learned Senior Counsel ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court in an application filed under Article 32 of the Constitution. But in those cases no one joined issue with regard to the maintainability of the writ petition under Article 32 of the Constitution. Therefore, those cases cannot be read as authority for the proposition that a writ of certiorari under Article 32 would lie to challenge an earlier final judgment of this Court. emphasis is ours) 134. Before we advert to the question of jurisdiction, it may be relevant to understand the extent and width of jurisdiction within the framework whereof this Court can pass orders. In this behalf reference may be once again, made to the nine-Judge Bench judgment of this Court in Naresh Sridhar Mirajkar's case (supra), wherein it was held as under:- 60. There is yet another aspect of this matter to which it is necessary to refer. The High Court is a superior Court of Record and under Article 2 15 , shall have all powers of such a Court of Record including the power to punish contempt of itself. One distinguishing characteristic of such superior Courts is that they are entitled to consider questions of their jurisdiction raised before them. This question fell to be considered b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... her this Court had the jurisdiction to order the arrest and detention of the petitioner - Mr. Subrata Roy Sahara. We have independently concluded, that we were possessed of such jurisdiction. It is therefore apparent, that the impugned order dated 4.3.2014, does not suffer from any jurisdictional error. 137. We are in absolute agreement with the submissions advanced by Mr. Arvind Datar, learned Senior Counsel for the respondent. In view of the factual position depicted in this judgment (under the heading: Whether the impugned order dated 4.3.2014 was passed, in violation of the rules of natural justice? ), based on the pleas advanced by the petitioner on merits, it is apparent, that the rules of natural justice were followed to the hilt, before the impugned order dated 4.3.2014 was passed. Accordingly, the principle of actus curiae neminem gravabit is not available to the petitioner. 138. We have recorded hereinabove, that the instant petition is not maintainable, because the challenge raised by the petitioner herein, on the grounds of a jurisdictional error, or non compliance of the rules of natural justice have been found to be not made out in this case. That was the only ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the present writ petition was maintainable at the hands of the petitioner, to assail the order passed by us, on 4.3.2014. 140. The instant issue being a pure question of law, was canvassed at the hands of the learned counsel for the rival parties, by placing reliance on judgments rendered by this Court. In our considered view, therefore, it would be in the fitness of matters to cite the judgments relied upon by the learned counsel for the parties, for the adjudication of the instant issue. 141. We have chosen to take into consideration various judgments brought to our notice chronologically. (i) In this behalf reference may first and foremost be made to the judgment rendered by a nine-Judge Bench of this Court in Naresh Shridhar Mirajkar, AIR 1967 SC 1, wherefrom our attention was invited to the following conclusions drawn therein:- 52. In this connection, it is necessary to refer to another aspect of the matter, and that has relation to the nature and extent of this Court's jurisdiction to issue writs of certiorari under Article 32(2) . Mr. Setalvad has conceded that if a Court of competent jurisdiction makes an order in a proceeding before it, and the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ied by this Court in dealing with petitions filed before this Court under Article 32 in Daryao v. The State of U.P. and Others, AIR 1961 SC 1457. We apprehend that somewhat similar considerations would apply to the present proceedings. If a judicial order like the one with which we are concerned in the present proceedings made by the High Court binds strangers, the strangers may challenge the order by taking appropriate proceedings in appeal under Article 136. It would, however, not be open to them to invoke the jurisdiction of this Court under Article 32 and contend that a writ of certiorari should be issued in respect of it. The impugned order is passed in exercise of the inherent jurisdiction of the Court and its validity is not open to be challenged by writ proceedings. (emphasis is ours) Even though the challenge before us is raised on account of the alleged violation of Article 21 of the Constitution of India, yet the issue that needs to be determined is, whether a writ petition would be maintainable, as against an order passed by this Court for an alleged violation of a fundamental right. While examining the above proposition in respect of an alleged violation under A ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... State of Rajasthan Anr., [1983] 4 SCC 7, held that the writ petition was not maintainable. Incidentally, it would be pertinent to mention, that the above challenge was raised (as in the instant case), by asserting that the impugned judgment violated the fundamental right of the concerned detenue, under Article 21 of the Constitution of India (as in the instant case). Additionally, a challenge was also raised under Articles 14 and 19 of the Constitution of India. This Court dismissed the writ petition, with the following observations:- 2. It appears that the petitioner along with two others was arraigned before the Sessions Judge of Alwar in Sessions Trial No. 110 of 1976 for having committed an alleged offence punishable under Section 302 of the Indian Penal Code, alternatively, under Section 302 read with Section 34 of the Code. By his finding and sentence dated April 21, 1977 the learned Sessions Judge convicted the petitioner and his two associates for having committed the murder of the deceased Jharia in furtherance of their common intention under Section 302 read with Section 34 and sentenced each of them to undergo imprisonment for life, while recording their acquittal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution. 4. We fail to appreciate the propriety of asking for a declaration in there proceedings under Article 32 that conviction of the petitioner by the High Court for an offence punishable under Section 302 read with Section 34 of the India Penal Code is illegal, particularly when this Court has declined to grant special leave under Article 136 . Nor can the petitioner be heard to say that his detention in jail amounts to deprivation of the fundamental right to life and liberty without following the procedure established by law in violation of Article 21 read with Articles 14 and 19 . When a special leave petition is assigned to the learned Judges sitting in a Bench, they constitute the Supreme Court and there is a finality to their judgment which cannot be upset in these proceedings under Article 32 . Obviously, the Supreme Court cannot issue a writ, direction or order to itself in respect of any judicial proceedings and the learned Judges constituting the Bench are not amenable to the writ jurisdiction of this Court. (emphasis is ours) A perusal of the above judgment, leaves no room for any doubt, that in the above judgment, rendered by a three-Judge Division Bench, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hereunder:- 14. In Kanu Sanyal v. District Magistrate, Darjeeling and Ors., [1973] 2 SCC 674, it was laid down that the writ of habeas corpus deals with the machinery of justice, not the substantive law. The object of the writ is to secure release of a person who is illegally restrained of his liberty. 15. Speaking about the importance of the writ of habeas corpus, a two-Judge Bench, in Ummu Sabeena v. State of Kerala and Ors. [2011] 10 SCC 781, has observed as follows: 15. ...the writ of habeas corpus is the oldest writ evolved by the common law of England to protect the individual liberty against its invasion in the hands of the executive or may be also at the instance of private persons. This principle of habeas corpus has been incorporated in our constitutional law and we are of the opinion that in a democratic republic like India where Judges function under a written Constitution and which has a chapter on fundamental rights, to protect individual liberty the Judges owe a duty to safeguard the liberty not only of the citizens but also of all persons within the territory of India. The most effective way of doing the same is by way of exercise of power by the Court by ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed by this Court in, Rupa Ashok Hurra's case (supra), the relevant observations wherefrom, have already been extracted hereinabove. 142. Last of all, we shall endavour to deal with the submission advanced by Dr. Rajeev Dhawan, learned Senior Counsel, to the effect that the instant petition was maintainable in exercise of the jurisdiction vested in this Court, under Articles 129 and 142 of the Constitution of India. The above provisions are being extracted hereunder;- 129. Supreme Court to be a court of record - The Supreme Court shall be a court of record and shall have all the powers of such a court including the power to punish for contempt of itself. 142. Enforcement of decrees and orders of the Supreme Court and orders as to discovery, etc. - (1) The Supreme Court in the exercise of its jurisdiction may pass such decree or make such order as is necessary for doing complete justice in any cause or matter pending before it, and any decree so passed or order so made shall be enforceable throughout the territory of India in such manner as may be prescribed by or under any law made by Parliament and, until provision in that behalf is so made, in such manner as the Pres ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tain an application seeking reconsideration of an order of this Court which has become final on dismissal of a review petition. It is neither advisable nor possible to enumerate all the grounds on which such a petition may be entertained. (emphasis is ours) 143. It is not possible for us to accept the contention advanced at the hands of the learned Senior Counsel. By placing reliance on the decision rendered by this Court in Rupa Ashok Hurra's case (supra), learned counsel must be deemed to have impliedly conceded the issue, against himself. In Rupa Ashok Hurra's case (supra), this Court examined the remedies available to an individual. In the above judgment, this Court examined the ambit and scope of Article 137 of the Constitution of India, whereunder, a review petition could be filed for the correction of an error apparent on the face of the record. In the judgment relied upon, this Court also expressed the view, that a curative petition could be filed for corrections of such like errors, after a review petition had been dismissed. It is relevant to mention, that in furtherance of the directions issued by this Court in Rupa Ashok Hurra's case (supra), this Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ompanies of which the petitioner is a promoter, flouted orders passed by the SEBI (FTM), SAT, the High Court and of this Court, with impunity. Facts and information solicited were never disclosed. The position adopted by the two companies was always projected on the basis of unverifiable material. This Court recorded in its order dated 31.8.2012, that the factual assertions made on behalf of the two companies seemed to be totally unrealistic and could well be fictitious, concocted and made up, and also remarked, that the affairs of the two companies seemed to be doubtful, dubious and questionable. The above position has remained unaltered, inasmuch as, no authentic and verifiable material sought has ever been furnished by the two companies. The two companies remained adamant while frittering away repeated opportunities granted by this Court to comply with the orders dated 31.8.2012 and 5.12.2012. The companies adopted a demeanour of defiance constituting a rebellious behaviour, not amenable to the rule of law. (For details, refer to paragraph nos. 20 to 39). IV. Efforts made to cajole the two companies and the petitioner were always stonewalled and brushed off. All intermediary ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng the petitioner's (and the other contemnors') arrest and detention. The submission of the learned counsel for the petitioner, so as to avoid his arrest and detention, based on the judgment rendered by this Court in Jolly George Varghese Anr. v. Bank of Cochin, (1980) 2 SCC 360, being inapplicable to the facts and circumstances of this case, was liable to be rejected, and has accordingly been rejected. (For details, refer to paragraph nos. 62 to 77). VII. In response to a prayer made by the SEBI (in Interlocutory Application nos. 68 and 69 of 2013 in Civil Appeal no. 9813 of 2011), inter alia, seeking the arrest and detention of the petitioner (and two other contemnors, namely, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary), the petitioner filed a personal reply by way of an affidavit. The petitioner in his written reply raised all possible legal and factual defences. Different orders were passed from time to time in furtherance of the prayers made in the aforementioned interlocutory applications, including the order preventing the petitioner (and the other contemnors) from leaving the country, as also, the order restraining the two companies from parting with an ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f the two companies. (For details, refer to paragraph nos. 113 to 122). X. The submission advanced by Mr. Ram Jethmalani, learned Senior Counsel asserting the maintainability of the instant petition under the maxim of ex debito justitiae, expressly recognized by this Court in A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, is held to be devoid of any merit, consequent upon a detailed analysis of the judgment relied upon. The contention advanced by Mr. C.A. Sundaram, learned Senior Counsel for the petitioner, projecting the maintainability of the instant petition under Article 32 read with Article 21 of the Constitution of India, has been found to be unacceptable in law on the basis of a series of judgments rendered by this Court. The submission advanced by Dr. Rajeev Dhawan, learned Senior Counsel representing the petitioner, supporting the maintainability of the instant petition by placing collective reliance on Articles 129 and 142 of the Constitution of India, has also been found to be ill-founded. (For details, refer to paragraph nos. 123 to 144). For the reasons recorded hereinabove, we find no merit in the present petition, and the same is accordingly dismissed. XII. P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... order dated 31.8.2012. The pleas raised have been found to be patently false, on the face of the record. 149. During the course of passing this judgment, we required the Registry of this Court to place before us a compilation of the orders passed on different dates of hearing, ever since the filing of the appeals, which culminated in passing of the order dated 31.8.2012. We were astounded to learn, that the controversy arising out of Civil Appeal nos. 9813 and 9833 of 2011 was listed for hearing on the following 81 dates:- 28.11.2011, 9.1.2012, 20.1.2012, 10.2.2012, 2.3.2012, 20.3.2012, 23.3.2012, 27.3.2012, 28.3.2012, 29.3.2012, 3.4.2012, 10.4.2012, 11.4.2012, 12.4.2012, 17.4.2012, 18.4.2012, 19.4.2012, 20.4.2012, 24.4.2012, 25.4.2012, 26.4.2012, 1.5.2012, 2.5.2012, 3.5.2012, 4.5.2012, 30.5.2012, 31.5.2012, 1.6.2012, 5.6.2012, 6.6.2012, 7.6.2012, 12.6.2012, 13.6.2012, 14.6.2012, 31.8.2012, 11.9.2012, 28.9.2012, 19.10.2012, 19.11.2012, 8.1.2013, 6.2.2013, 8.2.2013, 19.2.2012, 25.2.2013, 4.4.2013, 22.4.2013, 2.5.2013, 8.5.2013, 17.7.2013, 24.7.2013, 30.7.2013, 6.8.2013, 13.8.2013, 26.8.2013, 2.9.2013, 16.9.2013, 4.10.2013, 28.10.2013, 31.10.2013, 1.11.2013, 20.11.2013, 21.11. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be taken to have suggested, that the cost of litigation should be enhanced. It is not our suggestion, that Court fee or other litigation related costs, should be raised. Access to justice and related costs, should be as free and as low, as possible. What is sought to be redressed is a habituation, to press illegitimate claims. This practice and pattern is so rampant, that in most cases, disputes which ought to have been settled in no time at all, before the first Court of incidence, are prolonged endlessly, for years and years, and from Court to Court, upto the highest Court. 152. This abuse of the judicial process is not limited to any particular class of litigants. The State and its agencies litigate endlessly upto the highest Court, just because of the lack of responsibility, to take decisions. So much so, that we have started to entertain the impression, that all administrative and executive decision making, are being left to Courts, just for that reason. In private litigation as well, the concerned litigant would continue to approach the higher Court, despite the fact that he had lost in every Court hitherto before. The effort is not to discourage a litigant, in whose perce ..... X X X X Extracts X X X X X X X X Extracts X X X X
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