SUBRATA ROY SAHARA versus UNION OF INDIA AND OTHERS

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 spearheaded submissions on the instant issue, informed this Court, that an order passed without · affording an opportunity of hearing, by any authority whosoever (including this Court), would be constitutionally unacceptable, and therefore void. The order dated 4.3.2014, according to learned Senior Counsel, was passed without affording the petitioner any opportunity to know why, and also, without any effective opportunity to respond to, whatever was the basis of passing such order. The petitioner, according to learned counsel, is till date not aware of the reasons which had prompted this Court to pass the impugned order dated 4.3.2014. He apologized to us, while informing us, that he had no option but to be blunt. Referring to the impugned order, he reiterated, "Your Lordships have passed a draconian order". Learned Senior Counsel in the above context, asserted, that this Court had made a " … terrible terrible mistake … , which needed to be corrected … ". In this behalf his submission was, that " … to err was human .. ." and his advice was, that· … it is imperative for you, to correct this blunder. . .". In supporting the above contention advanced by Dr. Rajeev Dhawan, Mr. Ram Jethmalani, learned Senior Counsel, also representing the petitioner, submitted, that • … the whole Bar was shell- shocked … ", when this Court out of the blue, directed the arrest of the petitioner, without affording him any opportunity to state his case. It was the contention of the learned Senior Counsel, that the order passed by this Court on 4.3.2014 was " … extremely disturbing .. .". It was submitted, that there was no hearing of the matter. Suddenly on the conClusion of the day's hearing on 4.3.2014, " … when there was still much to be [2014) 12 S.C.R. A said … ", a judicial order was passed, to the detriment of the petitioner" … depriving him of his civil liberties … ". The order, it was contended, " … was an absolute nullity … ". Learned counsel advised the Court, " … humility was the greatest attribute of human resource … ", and as such," … you must have B the courage to accept, that the order dated 4.3.2014 was a nullity in law … , and you should have the courage to recall your void order .. .". We were also advised, that the mandate expressed in Article 142 of the Constitution of India (under which provision, the order dated 4.3.2014, was passed), " … C was to do justice according to law, and not by whim or caprice … ". During the 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 incarcer.ated, except D 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 E 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 F 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 G manner i.e., in exactly the manner he had done. By informing the Court upfront, that it had erred, and therefore, the mistake committed by it, needed to be corrected, Mr. Ram Jethmalani · in the above context told the Court, "Acknowledgement of a mistake enhances the prestige of the Court. I hope your H Lordships will acknowledge this mistake." SUBRATA ROY SAHARf. v. UNION OF INDIA (JAGDISH SINGH KHEHAR, J.]

79. Seriously, we were taken aback by the ferocity with which, the above submissions were advanced. Had we been a part of the audience, we would have acclaimed the courage and the capacity of learned Senior Counsel, to be able to call a spade a spade. We would have felt, that their eminence was rightfully bestowed on them, and well deserved. That of course, would have been subject to the condition, that what was sought to be conveyed through erudite grandiloquence, was factually correct. The question therefore that needs to be considered is, whether the above submissions made by the learned counsel for the petitioner, are based on a truthful foundation. If their · c assertions are correct, we would concede at the beginning, that their inferences would have to be accepted as correct.

80. Mr. Arvind Datar, learned Senior Counsel appearing for the SEBI would contend, that there was nothing farther from the truth, in what had been submitted on behalf of the petitioner. We were taken through piles of pleadings, paper work, and orders passed by this Court, to demonstrate an express written notice to the petitioner, his written response, numerous opportunities of hearing afforded to learned Senior Counsel representing him, and finally, even an opportunity of personal· E oral hearing to the petitioner – Mr. Subrata Roy Sahara, himself.

81. Before examining the veracity of the submissions advanced by the learned Senior Counsel for the petitioner, we would unhesitatingly concede, that they were correct on one aspect of the matter. That it was an extraordinary situation. For many many years now, ever since we moved from the Bar to the Bench, we were the ones who were posing the questions, and the warring factions projecting their conflicting claims before us, were obliged to respond. Now for once, questions were being posed by a litigant asking the Court, for its response. Not that we find anything wrong with that, only that we too were shell-shocked, that we had committed a blunder, as to be informed by learned counsel, that we had passed a . void order, that needed to be corrected. We would like to SUPREME .COURT REPORTS (2014] 12 S.C.R. . A 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 lose, if the B 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 ·c -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 D 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 were filed by the SEBl. The prayers made therein inter E alia, read as und~r:- "(d) pass an order permitting SEBI [WTM] to take measures for arrest and detention in civil prison of promoter of Saharas Shri Subrata Roy Sahara and the two male directors. viz .. Shri Ashok Roy Choudhary and Shri Ravi Shankar Dubey after giving reasonable opportunitv of tiearing. (f) pass an order directing the promoter of SIRECL and SHICL Shri Subrata Roy Sahara and their Directors. viz .. Shri Ashok Roy Choudharv. Shri Ravi Shankar Dubey and Ms. Vandana Bhargava to deposit forthwith their respective passport with the Secretary General of this Hon'ble Court and not to leave the countrv without the prior permission of this Hon'ble Court: and SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] (g) pass such other and/or. further order(s) as this A Hon'ble Court may deem fit and proper in the facts and circumstances of the case." (emphasis is ()Urs) In view of the above prayers made in Interlocutory B Application nos. 68 and 69 of 2013, wherein notice was issued to the petitioner, can it be said, that the petitioner had no notice? Can it not be said; that there was a pending Interlocutory Application expressly, seeking his arrest and detention? We are fully satisfied, that the petitioner- Mr. Subrata Roy Sahara C had due notice, as also, that he was fully alive to the basis and reasons, why his arrest and .detention (along with the directors of the two companies) was being sought.

83. The said Interlocutory Application nos. 68 and 69 of 0 2013 were taken up for consideration on 22.4.2013. Mr. Gaurav Kejriwal, Mr. U.U: Lalit, and Mr. C.A. Sundaram, learned Senior Counsel appearing for the contemnors undertook to file their response to the above applications, within one week. Accordingly, liberty was granted to Mr. Subrata Roy Sahara E (and the other contemnors) to file their reply affidavits by 29.4.2013. The·petitioner herein – Mr. Subrata Roy Sahara, actually filed his personal counter affidavit dated 8.5.2013 in reply to Interlocutory Application nos. 68 and 69 of 2013. He asserted in paragraph 2 of his affidavit as unaer:- " … while so seeking relief for arrest and detention in a civil . prison, depositing of passport etc., would not be warranted in fact or in law. I submit that such reliefs are granted in extreme cases of execution of decree only when it is established that a judgment-debtor having the means to G pay. 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 c and 69 of 2013, it was. submitted:c, "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 SIRECUSHICL 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 application is not bona fide and warranted in any manner whatsoever.". (emphasis is ours) His above affidavit ended with a prayer, that the relief sought by SEBI ought not to be granted. In view of the above personal counter-affidavit filed by the petitioner, is it not abundantly clear, that the petitioner was conscious of the implications of the prayer made in Interlocutory Application nos. 68 and 69 of 2013? We are also satisfied, that he was also fully conscious, of the provisions under which the prayer made had to be examined, and therefore, relied upon the various G technicalities of law, in his defence. He also placed, certain personal factors on record in his defence. In other words, not only was he aware of the reasons, why his arrest and detention was sought, but he had availed of the opportunity to respond to the same in writing. We are fully satisfied, that the petitioner Mr~ Subrata Roy Sahara had'a notice depicting the reasons SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] why his arrest and detention was sought, and an opportunity to A carefully respond to the same, by stating his defence in writing.

84. The matter was thereafter posted for hearing on 2.5.2013. Having found, that the petitioner – Mr. Subrata Roy Sahara (and the other contemnors) were engaging themselves in unnecessary litigation arising out of our order dated 31.8.2012, the following interim order came to be passed on 2.5.2013:- "We are inclined to stay all further proceedings in Appeal Nos. 42/2013 (Subrata Roy Sahara v. SEBI), 48/2013 C (SHICL v. SEBI), 49/2013 (SIRECL v. SEBI) and 50/2013 (Ashok Roy Chaudhary & Ors. v. SEBI) pending before the Securities Appellate Tribunal, Mumbai, and in Writ Petition No. 2088/2013 pending before the High Court of Judicature at Allahabad, Lucknow Bench, since we are D examining the question, whether the respondents have complied with the various conditions stipulated in our judgment dated 31st August, 2012."

85. Interlocutory Application nos. 68 and 69 of 2013 E continued to be listed on each date of hearing thereafter, i.e., on 2.5.2013, 8.5.2013 and 17.7.2013. To ensure, that the issue of compliance of the orders passed by us on 31.8.2012, would be listed only before this Court, we passed, inter alia, the following order on 17.7.2013:- "We call for the Appeals Nos.42/2013 (titled Subrata Roy Sahara v. SEBI), 48/2013 (titled SHICL v. SEBI), 49/ 2013 (titled SIRECL v. SEBI) and 50/2013 (titled Ashok Roy Chaudhary & Ors., SEBI) pending before the Securities Appellate Tribunal Mumbai and W.P. No.2088 G 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 H (2014] 12 S.C.R. 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 otl'ler Fora including the High Court.

86. The matter was,then taken up for hearing on various C 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, lnterlocutor}i 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 D of the orders passed by this Court. Rather than actual compliance by making financial deposits, an alternative route was sought to be treaded by Mr. C.A. Sundram, learned Senior Counsel. Learned Senior Counsel informed us, that the contemnors were willing to make available to the SEBI, the details of unencumbered properties worth Rs.20,000/- crores. It was apparent, that the implied purpose to make available the above properties was, to guarantee the payment ordered by this Court on 31.8.2012 and. 5.12.2012. Noticing the above factual position, this Court passed the following order:- "Mr. C.A. Sundaram, learned Senior Counsel appearing for respondent No.5 (alleged contemnor), brought to our notice letter dated October 17, 2013 received from the Managing Director and CEO of the PNB Investment Services Limited. The same is taken on record and is marked as 'Annexure-A'. Mr. Sundaram, on the basis of the said letter and on instructions received from the Sahara Group of Companies, submitted that the alleged contemnors are willing to make available to SEBI the original title deeds SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] of unencumbered properties, worth '20,000 crores, along with proper valuation reports, within a period of three weeks from today. SEBI, in turn, will examine the same and make their response, which shall be considered by this Court on the next date of hearing. Till the above direction is complied with to the satisfaction . of SEBI. the alleged contemnors (respondents) shall not leave the country without the permission of this Court." (emphasis is ours) It is in furtherance of the prayer (f) made in Interlocutory Application nos. 68 and 69 of 2013, that the above order came c to be passed on 28.10.2013, restraining the petitioner (and the other contemnors) from leaving the country, without this Court's permission. This Court through its above order, issued its first disciplinary order. We had hoped, that the above order would convey to the contemnors, the seriousness of the matter.

87. The matter was then taken up on 31.10.2013 and 1.11.2013. Having considered the submissions advanced on behalf of the petitioner – Mr. Subrata Roy Sahara in Interlocutory Application no. 4 (in Contempt Petition (Civil) no. 260 of 2013 in Civil Appeal no. 8643 of 2012), that he needed to go abroad urgently, in connectioh with some business commitments, we permitted him the liberty to leave the country, with a clear . direction, that he would return back before the expiry of the · F 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. c

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 0 21.11.2013 restraining the Sahara Group ofCompanies, from parting with any movable or immovable properties, until further orders. We further directed, that all the alleged contemnors would not leave the country, without the prior permission of this Court. In this behalf it would be relevant to mention, that the E above order came to be passed because, the Court felt that an attempt had been made to mislead the Court, by submitting a false evaluation report. In this behalf we may record, that learned Senior Counsel represeriting the SEBI had invited our · attention to an order passed by the Bombay High Court, depicting that the main properties offered by the alleged F contemnors, in compliance with the order dated 28.10.2013, fell in the CRZ Zone, where no canstruction whatsoever was permissible. An extract of the order dated 21.11.2013 !s reproduced hereunder:- "We are convinced that the order dated 28.10.2013 passed by this Court has not been complied with in its letter and spirit. In such circumstances, we direct that the Sahara Group of Companies shall not part with any movable or immovable properties until further orders. We SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.) further direct that all the alleged contemnors shall not leave the countrv without the permission of this Court." (emphasis is ours) This was another order, in the series of corrective and deterrent orders passed by this Court, in the process of enforcement of our orders dated 31.8.2012 and 5.12.2012. This Court through its above order, restrained the entire Sahara Group of Companies, from transferring any of their movable or immovable properties. Needless to mention, that the above order was also clearly passed in furtherance of the prayer made in Interlocutory Application nos. 68 and 69 of 2013, which was actually listed on the above date of hearing. This was another order in the series of orders passed by this Court, which would have certainly made the petitioner aware, that sequentially harsher orders were being passed by this Court, in the light of D the prayers made in the aforesaid Interlocutory Applications.

89. The matter was then listed for hearing on 11.12.2013, 17.12.2013, 2.1.2014 and 9.1.2014. On all the above dates, Interlocutory Application nos. 68 and 69 of 2013 were also listed for hearing. On 9.1.2014, this Court passed the following order:- "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 SEBl'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 · H c 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 the SEBI, had informed this 0 Court, that the contemnors including the petitioner herein, had been asserting that they had refunded Rs.17,443 crores (approximately) in the case of SIRECL and Rs.5,442 crores (approximately) in the case of SHICL; but had not given any details, nor produced any relevant record to show the source E from which the two companies had collected the money, for such huge repayments. This information, according to Mr. Datar, had been sought by the SEBI from the alleged contemnors through a letter dated 28.5.2013 (i.e., more than six months prior to the passing of the above order). We were of the view, that mentioning the aforesaid factual position was F sufficient to prompt the two companies to furnish the abovesaid details. The demeanour of the two companies has remained the same, throughout. They hC!Ve never supplied any invec:or related information. Not even such information, which would have substantiated their own defence. It is this repeated G behaviour, that_ has given us the repeated impression, that the submissions advanced on behalf of the two companies, were just a pack of lies. The fact that the companies had not furnished the above details, was brought to our notice by Mr. Datar on 9.1.2014, prompting us to pass an express order directing the H two companies, as also, the alleged contemnors including the SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] present petitioner – Mr. Subrata Roy Sahara, to .furnish the required particulars. The above order discloses the games the two companies, and the alleged contemnors, have been playing with this Court.

90. Thereafter the matter was taken up for consideration on 28.1.2014, when we passed the following order:- 1. 2. 3. 4. 5. ""Heard Mr. Ram Jethmalani, learned Senior Counsel and Mr. Arvind P. Datar, learned Senior Counsel. Mr. Datar submitted that the Saharas have not disclosed the details as to when the refund was made. Reference was made to pages 6 to 9 of the reply affidavit filed today. Mr. Datar further submitted that the SEBI rjilguii'es an exglanation from Saharas with regard to the gayments made on behalf of Sahara India Real Estate Comoration Ltd. (SIRECL) (gartnershiQ firm) by the following firms, as mentioned below:- Rupees (In Crores) Sahara Credit Co-operative Society Ltd. 13,366.18 Sahara India Commercial Corporation 4384.00 Limited Sahara Q Shop 2258.32 Ketak City Homes Ltd. 19.43 Kiri! City Homes Ltd. 44.05 c Similarly, SEBI reguires Saharas to show the following gayments made on behalf of Sahara Housing Investment Comoration Ltd. (SHICU (QartnershiQ firm). by the following firms. as mentioned below:- 1. 2. c Rupees (In Crores) SICCL 2479.00 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 E SAT, it had committed to furnish bank accounts of Sahara India to establish redemption of payments. The relevant paragraph containing the assertions made therein is being extracted hereunder:- "(ee) The Appellant has invested the funds of.OFCD as per the details mentioned in the Affidavit dated·04.01.2012 of Shri B.M. Tripathi filed before the Hon'ble Supreme Court in Civil Appeal No. 9833 of 2011 which is already on the record of the Hon'ble Supreme Court. Further, it is submitted that in order to make redemptions to the OFCD holders, the Appellant had to dispose of the investments. Amounts realized on such disposal were utilized to pay the investors, on redemption through Sahara India-Partnership Firm to make the redemptions. The redemptions made to investors are clearly reflected and found in the Books of SUBRATA ROY SAHARA v. UNION OF INDIA (JAGDISH SINGH KHEHAR, J.] Accounts of Sahara India. The Appellant .crave leave to refer to and rely upon bank accounts of Sahara India as and when produced." (emphasis is ours) In a similar Appeal no. 48 of 2013, filed by SH.ICL before the SAT, exactly the same stance (as adopted by SIRECL, and extracted above), was taken. Even though the position adopted by the two companies was, that verification of redemption of OFCD's could be established from bank accounts of Sahara India Limited, the said bank accounts depicting the said transactions were not being disclosed. A perusal of the above order dated 28.1.2014 reveals, that Mr. Ram Jethmalani, learned Senior Counsel sought time to examine the matter, so as to be able to come out, with an appropriate response. On 20.2.2014, conflicting stands were taken by learned counsel appearing for the alleged contemnors (including the present petitioner). One learned counsel, went to the extent of contending, that the position adopted by the two companies in the two appeals, was the result of a typographical error. All along, most ridiculous and absurd defences were raised. Our impression is, that this was done to avoid furnishing of the information sought. Maybe there was no information to supply.

91. This Court was also convinced, that the attitude of the alleged contemnors was defiant and non-cooperative, 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 A jl.pplications .. A relevant portion thereof is reproduced c 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 Februarv 25, 2013 passed in Civil Appeal No .. 8643 of 2012 and IA No. 67 of 2013 by a three Judge Bench of this Court. we direct the personal presence of the alleged contemnors and the Directors of the respondent companies in Court on Februarv 26, 2014 at 2.00 p.m .. on which date the matter will be next taken !!Q." (emphasis is ours) A perusal of the above order reveals, that the contemnors were to appear personally before this Court on 26.2.2014. Most importantly, it also reveals why the petitioner was being summoned to this Court. We are also satisfied, that the F petitioner was fully conscious, of the reason why he was being summoned to Court, anyway his personal presence was directed (a:ong with the other C:ontemnors). It therefore does not lie in the mouth of the petitioner – Mr. Subrata Roy Sahara, or his learned counsel, that they were not aware why the above G summoning order was passed.

92. On 25.2,2014, an oral request was made .by Mr. Ram Jethmalani, learned Senior Counsel. He prayed for exemption, of the petition'er's personal presence. The above oral request was specifically turned down. When the matter was taken up SUBRATA ROY SAHARA v. UNION OF INDIA · [JAGDISH SINGH KHEHAR, J.] on 26.2.2014, whilst the other alleged contemnors were present in Court, Mr. Subrata Roy Sahara, the petitioner herein, did not enter appearance. This Court passed the following order on 26.2.2014, to enforce the presence of the petitioner Mr. Subrata Roy Sahara on the.next date of hearing, i.e., on 4.3.2014:- "This Court passed an order on February 20. 2014 directing the personal presence of the alleged contemnors and the Directors of the respondent companies today. i.e. on February 26. 2014 at 2.00 p.m. On our directions. Mr. Ashok Roy Choudhary. Mr. Ravi Shankar Dubey and Sm!. Vandana Bhargava are present in Court today. Even though, Mr. Ram Jethmalani, learned Senior Counsel appearing for the alleged contemnors, made a mention yesterday, i.e. on February 25, 2014, before this Bench for dispensing with the personal presence of Mr. Subrata Roy Sahara, alleged contemnor No.5, that request was specifically turned down by this Court. Today, when the matter is taken up, same request was made by Mr. Jethmalani, by moving an application, which was supported by a medical certificate. The said medical certificate was issued by Sahara Hospital and, in our view, the factual position indicated therein does not solicit the exemption sought. Since, we have already declined to grant exemption from ' F 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. 708 · Put up on March 04, 2014 at 2.00 p.m." (emphasis is ours) On 4.3.2014, all the col"!temnors were present. Not only were learned counsel appearing for the petitioner permitted to B 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 c 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 beginninQ of this order, was passed.

94. Based on the factual position noticed in the foregoing D paragraphs, it was the vehement contention of Mr. Arvind Datar, learned Senior Counsel appearing for the SEBI, that the entire basis of the submissions canvassed on behalf of the petitioner was fallacious. It was submitted, that a written prayer was made in Interlocutory Application nos. 68 and 69 of 2013, inter alia E praying for the arrest of the petitioner herein – Mr. Subrata Roy Sahara, and als.o, that of two other male directors of the companies, namely, Mr. Ashok Roy Choudhary and Mr. Ravi Shankar Dubey. The impugned order dated 4.3.2014, was exactly to the above effect. In consonance with the prayer made F by the.SEBI, the impugned order dated 4.3.2014 directed the arrest and detention of Mr. Subrata Roy Sahara, Mr. Ashok Roy Choudhary and Mr. Ravi Shankar Dubey. We did not traverse beyond the prayers made in the Interlocutory Applications. We did not order the arrest and detention of another contemnor Smt. G Vandana Bhargava, because no prayer for her arrest had been made, and also because of the reasons expressed in the order dated 4.3.2014. There could therefore be no reason to doubt, that the order dated 4.3.2014 had been passed in furtherance of express prayers made to this Court, in Interlocutory H Application nos. 68 and 69 of 2013. SUBRATAROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.]

95. We find each one of the submissions advanced by Mr. Arvind Datar on behalf of the SEBI, as fully justified. We have recorded our own observations, at the end of each of the above paragraphs, dealing with the factual position brought to our notice, by the learned Senior Counsel for the SEBI. We are satisfied, that Mr. Subrata Roy Sahara was well aware of the proceedings before this Court. He was well aware of the prayers made in Interlocutory Application nos. 68 and 69 of 2013. He filed his written response thereto, by way of an affidavit. The petitioner was aware of the seriousness of the issue, on account of various restraining, corrective and deterrent orders c passed by this Court, from time to time, each graver than the previous ones. He remained unaffected to all the efforts made by this Court, to enforce refund of the moneys collected by the two companies, to those who had invested in their OFCD's, along with interest, in terms of this Court's orders dated 31.8.2012 and 5.12.2012. It is, therefore, that this Court was left with no other option, but to order the arrest and detention of two of the directors, and Mr. Subrata 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 011ly 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 A 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 dated 4.3.2014 was passed without following the rules of natural justice, or that, the above order violates any of the B petitioner's fundamental rights: VIII. Whether the impugned order dated 4.3.2014, is vitiated on account of bias?

97. To be fair to Mr.· Rani Jethmalani and Dr. Rajeev · C Dhawan, learned Senior Counsel representing the petitioner, it is essential to indicate, that one of the reasons expressed by them, for us not to hear this matter was, that we entertained a bias against the petitioner. The pointed contention was, that ·the deliberations conducted by us, had generated a reasonable D apprehension in the mind of.the petitioner, that we had already arrived at a final resolve, and that, we would not be satisfied under any circumstances, with the petitioner's arguments and . submissions on merits. It was, therefore submitted, that the merits of the controversy would not make any difference to this E Bench, since the Bench had already pre-judged the. matter, and that, no relief could be expected by the petitioner from us.

98. In order to support his above submission, learned Senior Counsel for the petitioner argued, that the petitioner had been confined to Tihar Jail, since 4.3.2014, without any F justification. It was submitted, that the incarceration of the petitioner was void, and with the march of events, during the course of hearing of the instant petition, it had further become clear to the petitioner, that it was likely that the petitioner would continue to remain in custody for an indefinite period. In this G behalf it was submitted, that it was the petitioner's impression that the Judges hearing the matter, wished to enforce the orders dated 31.8.2012 and 5.12.2012, at all costs. It was submitted, that the above orders had been substantially complied with, yet without following the rules of natural justice, the petitioner has H been accused of not complying with the orders of this Court. It SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] was submitted, that the petitioner's incarceration vide order A dated 4.3.2014 was a complete nullity, and it was the duty of this Court, to terminate his unlawful detention, and to order his release forthwith.

99. It was the pointed submission of the learned counsel for the petitioner, that during the course of hearing (of Contempt Petition (Civil) nos. 412 and 413 of 2012 and Contempt Petition (Civil) no.260 of 2013), in order to determine whether or not . the respondents therein (including the present petitioner) were actually guilty of contempt, one of the Judges hearing the matter C (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 had been taken away, the petitioner has made repeated efforts to suggest a possible settlement, yet all efforts made by the petitioner were rejected. The petitioner's proposals were construed, according to learned counsel, as an insult to the Court. It was submitted, thatail these events, had generated a reasonable apprehension in the mind of the petitioner, that this Court had already arrived at a final decision. In order to support the instant submission, learned counsel for the petitioner invited this Court's attention to something which had completely shocked the petitioner, and had made him incapable to expecting a just decision at the hands of the Judges hearing the matter. In this behalf it was pointed out, that in the impugned order a finding had been recorded, that • … B all the fact finding authorities had opined that a majority of the investors did not exist…" It was submitted, that the identity of the authorities which had arrived at the above conclusion, had not been disclosed, by this Court. It was pointed out, .that no such mention had been made in the affidavit filed by the SEBI, c and no such submission was advanced, during the course of hearing. It was therefore, the contention of the learned counsel for the petitioner, that the petitioner was of the firm belief, that in view of our pre-disposition, legitimate verification of the documents furnished by the two companies to the SEBI, cannot be expected. ltwas submitted, that the situation created by this Court was such, that the petitioner is in no position, even to make an effort to find a compromise solution to the problem. It was also the assertion of the learned counsel for the petitioner, that the impugned order recited, that the respondents/ E contemnors (including the petitioner herein) were heard, whereas, .the respondents were called upon when only a few minutes were left for this ·court to rise on 4.3.2014. While acknowledging, that all the four respondents (including the present petitioner) were individually asked, as to whether they had anything to say, they were not informed what they were F asked to respond to. Accordingly, all the respondents who had appeared before this Court on 4.3.2014, were fullyjustified in stating to this Court on 4.3.2014, that their response was the same as had been submitted to this Court, on their behalf, by their respective learned Senior Counsel. It was accordingly G 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 H confidence of the petitioner, in this Bench, it would be improper . SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] for this Bench to hear the present case on its merit, arid 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 Lal. Resultantly, Manak Lal was held guilty of gross professional misconduct. It was the above finding, which. was assailed by Manak Lal before this Court. The contention advanced .on his behalf was, that the Members of the Tribunal, nominated to enquire into the misconduct ofManak Lal, had been improperly nominated. The improper constitution of the Tribunal was premised on the fact, that Shri Chhangani who was the Chairman of the Tribunal, had previously filed a power of attorney on behalf of Dr. Prem Chand, in a matter being determined under Section 145 of the Cr.P.C. It was submitted that Shri Chhangani, had also argued the above matter, on behalf of Dr. Prem Chand on 23.8.1952. Having_ appeared for the opponent, it was submitted, that Shri Chhangani was disqualified from acting as Chairman/Member of the Tribunal. This Court in the above factual background, held as under:- "There is some force in this argument. It is well settled that every member of a tribunal that is called upon to trv issues in judicial or quasi-judicial proceedings must be able to act judicially: and it is of the essence of judicial decisions and judicial administration that judges should be able to act impartially. objectively and Without any bias. In such cases the test is not whether in fact a bias has affected the judgment: the test always is and must be whether a. litigant could reasonably apprehend that a bias attributable to a member of the tribunal might have operated against him in the final decision of the tribunal. It is in this sense that it. is often said that justice must not only be done but must also appear to be done." (emphasis is ours) · On the issue, that justice must not only be done, but must also C appear to be done, this Court in the above judgment, had relied on the judgment rendered in Freme Lloited Breweries Co. v. Bath Justices, (1926) AC 586, and thereupon, had observed as under:- "As Viscount Cave L. C. has observed in From United Brewerses Co. v. Bath Justices, "this rule has been asserted not only in the case of Courts of Justices and other judiciartribuna/s but in the case of authorities which, though in no sense to be called Courts, have to act as judges of fhe .rights of others ". In dealing with cases of bias attributed to members constituting tribunals. it is necessarv to make a distinction between pecuniary interest and prejudice so attributed. It is obvious that pecuniarv interest. however small it mav be in a subject- matter of the proceedings. would who/Iv disqualify a member from acting as a judge. But where pecuniarv interest is not attributed but instead a bias is suggested. it often becomes·necessarv to consider whether there is a reasonable ground for assuming the· possibiiitv of a bias and whether it is /ikelv to produce in the minds of the litigant. or the public at large a reasonable doubt about the fairness of the administration of iustice. 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 SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J:l therein" (Halsbury's Laws of England, Vol. XX/, 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 onlv to the justices as mentioned by Halsburv 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 also placed by this Court on Rex v. Sussex Justices, Ex parte McCarthy, (1924) 1 KB 256. Relying on the above judgment, this Court had expressed as under:- "In support of his argument, Shri Daphtary referred us to the decision in Rex v. Sussex Justices, Ex parte McCarthy~ 0 In this case. the Court was dealing with a case arising out of a collision between a motor vehicle belonging to the applicant and one belonging to W. At the hearing of the summons the acting clerk to the justices was a member of the firm of solicitors who were acting for Win a claim· E for damages against the applicant for injuries received in the collision. After the evidence was recorded the justices ret[ed to consider their decision and the acting clerk also retired with them in case they should desire to be advised on any point of law. The applicant was convicted in the @se. This conviction was challenged by the applicant on the ground that it was vitiated by the improper conduct of the justices in allowing the acting clerk to be associated with them when they deliberated about the merits of the . case. An affidavit was filed on behalf of the justices that they reached their decision without consulting the acting · G clerk and that the acting clerk had in fact abstained from referring to the case. This affidavit was accepted as true by all the learned judges who heard the case and yet the conviction was quashed. "The question is" observed Lord Hewart C.J. "whether the acting clerk was so related to the c [2014) 12 S.C.R. case in its civil aspect, as to be unfit to act as a clerk to the justices in the criminal matter" and the learned judge added that "the answer to that question depends not upon . what exactly was done but upon what might appear to be done. Nothing is to be·done which creates even a suspicion that there has been an improper interference in. the course of justice.'' Lush J. who agreed with Lord Hewart C.J. likewise accepted the affidavit made on behalf of the justices but observed. "that they have placed themselves in an impossible position by allowing the clerk in those circumstances to retire with them into their consultation room." · (emphasis is ours) This Court in Manak Lal's case (supra) also placed reliance D on Rex v. Essex Justices, Ex parte Perkins, (1927) 2 KB 475. The conclusions recorded in the latter judgment were accepted by this Court, by holding as urider:- · "The same principle was enunciated with equal emphasis in Rex v. Essex Justices, Ex parte Perkins. This was a dispute between a husba'nd and his wife and it appeared that the wife had consulted the solicitor's clerk in their office about the preparation of a deed uf 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 decisioi:i might. perhaps. have been influenced by a prejudice SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 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 "though the clerk to the justices and the 'justices did not know that his firm had acted for the applicant's wife, the necessary, or at least the reasonable. impression, on the mind of the applicant would be that justice was not done seeing that the solicitor for his wife was acting with the justices and advising' them on the hearing of the summons which she had taken against him." (emphasis is ours) the submission of Shri Ram Jethmalani, learned Senior Counsel for the petitioner, having placed reliance on the judgments was, that we were disqualified from hearing the merits of the claim projected through the instant petition, because of our bias.

102. Dr. Rajeev Dhawan, learned Senior Counsel for the petitioner, seconded the position expressed by .Mr. Ram Jethmalani. It was his contention, that there is. a pre-disposition in the matter on the part of the Bench. The above pre- disposition, according to him, appears to be on the basis of a strong commitment towards the "other side". The inference of his assertion, according to learned counsel, could be gathered from the fact, that all the proposals offered by the petitioner for his release from detention, had been rejected by us, one after the other. According to learned counsel, the Bench had demonstrated its rigidity to such an extent, that the petitioner finds "no play in the joints". In other words, according to learned counsel, we were willing to accept nothing short of, what we had already ordered. The Bench according to learned Senior G Counsel, had repulsed all alternative reasonable grounds of compromise. Learned counsel then invited our attention to an order passed by us on 26.3.2014. The said order is being ·extracted ·hereunder:- "We have gone through the fresh proposal filed on 25.03.2014. Though the same is not in compliance with our Order dated 31.08.2012 or the Order passed by the three- Judge Bench of this Court on 05.12.2012 in Civil Appeal No.8643 of 20.12 and on 25.02.2013 in I.A. No.67 of 2013 in Civil Appeal No.9813 of 2011 with I.A. No.5 of 2013 in Civil Appeal No.9833 of 2011, we are inclined to grant interim bail to the contemnors who are detained by virtue cif our order dated 04.03.2014. on the condition that they would pay the amount of Rs.10.000 crores – out of which c Rs.5.000 crores to be deposited before this Court and for the balance a Bank Guarantee of a nationalized 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 F 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 G 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 SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] recorded, lest we are accused of, not having taken into consideration the submissions advanced by the learned counsel for the petitioner, in their correct perspective. However brazen the arguments may be, it is our onerous duty to deal with the contentions advanced by the ·learned Senior Counsel for the petitioner. We will make a humble effort to deal with the same, in the following paragraphs.

104. No allegation of bias or prejudice was levelled, when this very Bench was constituted to decide Civil Appeal nos. 9813 and 9833 of 2011. We had heard the learned Senior Counsel for the two companies at great length, and had adjudicated the matter taking into consideration each and every aspect of the controversy projected before us. It has never been c the case of the petitioner, that we were biased when we had disposed of the appeals by our common order dated 31.8.2012. On the issue of disbursement of payments by the two companies (to the SEBI), the date of deposit, was extended by an order dated 5.12.2012, passed by a three-Judge Division Bench (in Civil Appeal no. 8643 of 2012 and Writ Petition (Civil) no. 527 of 2012). Neither of us was on the three-Judge Division Bench, which passed the order dated 5.12.2012. It needs to be clearly understood, that the order dated 31.8.2012 read with the order dated 5.12.2012 is final and binding, and no proceedings are pending before this Court, either at the hands of the two companies, or the petitioner herein, for their reconsideration on merits. We have neither the jurisdiction, nor the authority to relax the terms and conditions of the above orders, In fact, we would be committing contempt if we were to, on o·ur own, interfere with the above directions. As a matter of fact, it is not open to us, to relax the order dated 5.12.2012, which was passed by a three-Judge Division Bench, requiring the contemnors to deposit the first installment of Rs.10,000 crores, in the first week of January 2013.

105. On 6.2.2013, we issued notice, in Contempt Petition (Civil) Nos. 412 and 413 of 2012. On 24.7.2013, we issued (2014] 12 S.C.R. A notice, in Contempt Petition (Civil) No. 260 of 2013. We heard the above contempt petitions on numerous dates (details whereof have already been enumerated above). No allegation of bias was ever levelled by any of the contemnors, not even by the petitioner herein, before the hearing of the present writ i3 petition. Despite prolonged hearings in the matters pertaining to the two companies, which 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, c 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 D 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 E 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 F passed, was being conducted in the contempt jurisdiction of this Court (under Article 129 of the Constitution of 1.ndia). The scope of the instant contempt jurisdiction extends to, punishing contemnors for violating Court's orders; punishing coniemnors for disobeying Court's orders; punishing contemnors for breach G of undertakings given to Courts. It also extends to enforcement of Court's orders. Contempt jurisdiction even extends to punishing those who scandalize (or lower the authority of) any Court; punishing those wt:io interfere in due course of judicial proceedings; and punishing those who obstruct the SUBRATA ROY SAHARA v. UNION OF lNDIA [JAGDISH SINGH KHEHAR, J.] administration of justice. During the course of hearing, learned counsel again and again, admitted breach of this Court's orders, dated 31.8.2012 and 5.12.2012. It was inter alia admitted, that payments could not be made within the time frame stipulated. Contempt by way of breach of this Court's orders having been admitted, the allegation of bias is clearly a plea which is not available to the petitioner. In such consideration, there is no room which remains for further adjudication on merits. There cannot, therefore be a prejudged mind (all that has to be decided, has already been adjudged). For the same reason, there is no scope for a compromise. c Issues of compromise ar.ise between parties, while merits of rival claims are pending. The dispute between the parties has already been settled, and contempt by way of breach has already been admitted. The question of compromise does not .arise at all. We therefore reject all the above submissions advanced by the learned counsel for the petitioner.

107. We shall now deal.with the substance, and the import, of the judgments relied upon. It is not the case of the petitioner, that we have any connection with either the two companies under reference, or any other company/firm which constitutes the Sahara Group. We may state, that neither of us has even a single share with the two concerned companies or· with any other company/firm comprising of the Sahara Group. In order to remove all ambiguity in the matter we would further state, that neither of us, nor any of our dependent family members, own even a single share in any company whatsoever. Neither of us has been assisted in this case, for its determination on merits by any law clerk, intern or staff member. while hearing, dealing with or deciding the controversy. Nor has any assertion in this behalf, been made against us, by the petitioner 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 (2014) 12 S.C.R. A 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 o( the disguised aspersions cast by learned Senior Counsel, would be sufficient B 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 t 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 D possessed with any adjudicatory role, insofar as the controversy on merits is concerned, the principal allegation of bias itself pales into insignificance. This Court by its order dated 31.8.2012 had directed the two companies to." … refund the amounts collected through RHPs dated 13.3.2008 and E 16.10.2009 along with interest at the rate of 15% per annum to the SEBI, from the date of receipt of the subscription amount .till the date of repayment, within a period of three months from today … " The above amount was payable by the two companies by 30.11.2012.-lt is not a matter of dispute, that neither the two F companies nor its.promoter or the directors, ever sought extension of time in making the above payment, by initiating proceedings known· to law, either in Civil Appeal no. 9813 or 9833 of 2011. The two companies, however, filed Writ Petition (Civil) no. 527 of 2012 in the same manner, as the petitioner G · has filed the present writ petition. The filing of the above writ petition was itself a matter of serious concern with the legal ·fraternity, to the extent ihat the President of the Supreme Court Bar Association had suo mot6 intervene_d in the above matter, to advance submissions before the three-Jljdge Division SUBRATA ROY SAHARA v. UNION OF INDIA (JAGDISH SINGH KHEHAR, J.) Bench. The three-Judge Division Bench while disposing of the matter on 5.12.2012, declined to accept the prayer made by the two companies, for taking into consideration the refund already made by way of redemptions to investors. At the time of disposal of Writ Petition (Civil) no. 527 of 2012 (and Civil Appeal no. 8643 of 2012) on 5.12.2012, it was directed, that the demand draft in the sum of Rs.5,120 crores, which had been produced before this Court on 5.12.2012, be immediately handed over. It was concluded, that the balance amount of Rs.17,400 crores, together with interest at the rate of 15% per annum, was still payable (even after the deposit of above c Rs.5,120 crores). A direction was accordingly issued to pay the first installment of Rs.10,000 crores within the first week of January, 2013. The application filed by the petitioner for extension of time to make the above deposit, was rejected by a three-Judge Division Bench of this Court on 25.2.2013. The direction to pay the first installment of Rs.10,000 crores, by the · first week of January, 2013, therefore, assumed finality. We have neither the authority nor the jurisdiction to entertain any prayer for reducing the sum directed to be paid, as the first installment. The submission of the 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 (2014] 12 S.C.R. A 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 5.12.2012). The long rope given to the two companies including B the petitio'1er, and the other directors, demonstrates the efforts made by us to help the petitioner (and others) out of the mess, in which they find themselves. As of now, the amount payable in furtherance of the directions issued by this Court (arr 31.8.2012 and 5.12.2012), has swelled up to Rs.36,608 crores. C Each proposal made by the petitioner till date, reveals an acknowledgment to pay. The petitioner has offered to deposit Rs.2,500 I 3,000 crores, in the proposals made thus far, and the remaining amount of the first instalment (i.e., Rs.7,500 I 7,000 crores), later on. Therefore, the proposals submitted thus far, only acknowledge payment of Rs.10,000 crores. None of D. the proposals, covers the whole amount payable. The proposals, as a matter of a precondition, demand the revocation of restraint.orders on bank accounts, and movable as well as, immovable properties. It may be understandable, that the restraint order is lifted in respect of the bank accounts, E and properties, which are to be utilized in discharge of the liability arising out of this Court's orders (dated 31.8.2012 and 5.12.2012). Repeatedly, during Court hearings, we have been assuring learned counsel for the petitioner, that individual accounts will be permitted to be operated, if the deposits F therein are to be transferred to the SEBI. Likewise, orders pertaining to particular immovable properties, will be lifted, if the s«ale proceeds thereof are to be utilized in honouring the commitment to refund investors' deposits (with 15% interest). None of the contemnors, have made any proposal, in G consonance with the above liberty. Acceptance of the proposals is just not possible, in the teeth of the order dated 5.12.2012, passed by a three-Judge Division Bench, requiring the two companies to make a depositof Rs.10,000 crores in the first week of January, 2013. By now, about 17 further months have SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] elapsed without the petitioner and the two companies having made any deposit whatsoever. Within the framework of the requirement depicted in the order dated 5.12.2012, we, by our own order dated 26.3.2014 {extracted above), softened the modus of payment. It is, therefore, not possible for us to.accept, that there has been "no play in the joints" for the enforcement of the orders passed by this Court. We find the submission made by the learned 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 c 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), alongwith its operating key. 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 ploy, in the series of moves adopted by the two companies to withhold the providing of any details to the SEBI. Resultantly, no details whatsoever were ever disclosed by SIRECL either before the SEBI (FTM) or the SAT. The position adopted by SHICL was even worse. It is necessary to 726 · A place on record the fact, that the SHICL has never ever disclosed, the names and other connected details of even a single investor to the SEBI, despite this prolonged litigation. We had repeatedly made a poser, during the hearing of the present petition, ·about SHICL, as indicated above. The position was B confirmed by learned Senior Counsel representing the SEBI. Unfortunately, Mr. S. Ganesh, learned Senior Counsel for the . petitioner, on the last day of hearing, ventured to contest the above position. He handed over to us two volumes of papers running into 260 pages (under the title – Note on information c provided by SHICL to the SEBI). We requi'red him to invite our attention, to documents indicating disclosure of the above information. His ploy stooc_I exposed, when no material depicting disclosure of names, and other connected details of SHICL to the SEBI, could be brought to our notice. That apart, D what is essential to record is, that till date SHICL has never ever supplied investor related details to the SEBI. A fact about which there is now no ambiguity, specially after learned Senior Counsel filed the two volumes of papers referred to above. The above factual position remained unaltered before the.SAT and everi before this Court. Does it lie in the mouth of learned Senior E Counsel to assert, that unjustified conclusions had been recorded against the two companies, without any basis? 111: Dr. Rajeev Dhawan, learned Senior Counsel also accused us of having a pre-disposition in respect of the F controversy. This predisposition, according to him, appeared to be on the basis of a strong commitment towards the "other side". This assertion was repeated several times during the hearing. But, which is the other side? In terms of our order dated 31.8.2012, the only gainer on the other side, is the Government G of India. The eighth direction of our order dated 31.8.2012, reads as under:- "8. SEBI (WTMl 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 · SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 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 c 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 Section 151 CPC seeking stay of the further arguments to enable the appellant to move the Supreme Court. In the ·said application the appellant referred to certain 'observations' made by the learned Judge during the course of arguments and also referred to the manner in which the two packets containing ballot papers which had been objected to by both the parties and had been kept for scrutiny of the learned Single Judge. were handled by the learned Judge. The appellant went on to say that "by doing this the Hon'ble Court was pleased to make these ballot papers suspect and doubtful and these cannot be considered for any decision on them regarding their validity or otherwise as these remained in unsealed condition for uncertainable time without the petitioner or his Counsel c (2014) 12 S.C.R. being present there". The learned Judge by his order dated 13.5.1993 recorded the following proceedings: "Counsel for the petitioner has not appeared and the petitioner himself lias made a request that he wants to move the Hon'ble Supreme Court for transfer of the Election Petition from this Court. In view of this statement, the petition is being adjourned. The petitioner wants to place as application for transfer on record. He may file it in the Registry, if so advised. During the course of arguments yesterday, two sealed envelopes relating to polling booth Nos. 28 and 31 had been opened in the presence of the parties and their Counsel at the time when the report of the Commissioner who carried out test checking was being considered. These open envelopes had remained in my custody in my Almirah under lock and key. Since the case is now being adjourned, these open envelopes be resealed and the same be handed over to the Additional Registrar (Judicial) alongwith other sealed envelopes." 33. Thereafter, the appellant as already noticed, filed a transfer petition in this. Court which was dismissed on 30.8.1993. The transfer petition like the application (supra) cast aspersions on the learned Judge in the discharge of his judicial functions and had the tendency to scandalise the Court. It was an attempt to brow beat the learned Judge of the High Court and cause interference in the conduct of a fair trial. Not only are the aspersions derogatory, scandalous and uncalled for bui they also tend to bring the authoritv and administration of law into disrespect. The contents of the application seeking stay as also of the transfer petition. bring the Court into disrepute and are an affront to the majestv of law and offend the dignitv of the SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 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 unbefittinq 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 c 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 are essential for maintaining the dignity and decorum of the courts and for upholding the majesty of law. Judges and courts are not unduly sensitive or touchy to fair and reasonable criticism· of their judgments. Fair comments. even if, out-spoken. but made without any malice or attempting to impair the administration of justice and made in good faith. in proper language. do not attract any punishment for contempt of court. However. when from the criticism a deliberate. motivated and calculated attempt is discernible to bring down the iniage of judiciary in the estimation of the public or to impair the administration of justice or tend to bring the administration of justice into disrepute the courts must bestir themselves to uphold their dignity and the majesty of law. The appellant, has, undoubtedly committed contempt of the Court by the use of the objectionable and intemperate language. No system of justice can tolerate such unbridled licence on the part of a person. be he a lawyer. to permit himself the liberty of scandalising a Court by casting [2014) 12 S.C.R. unwarranted. uncalled for and unjustified aspersions on the integrity. ability. impartiality or fairness of a Judge in the discharge of his judicial functions ·as it amounts to an interference with the dues course of administration of justice." (emphasis is ours) The observations recorded in the above judgment are fully applicable, to the mannerism and demeanour of the petitioner – Mr. Subrata Roy Sahara and some of the learned Senior C Counsel. We would have declined to recuse from the matter, even if the "other side", had been a private party. For, our·oath of office requires us to discharge our obligations, without fear or favour. We therefore also commend to all Courts, to similarly repulse all baseless and unfounded insinuations, unless of D course; they should not·be hearing a particular matter, for reasons of their direct or indirect involvement. The benchmark, that justice must not only be done but should also appear to be done, has to be preserved at all costs. IX. A few words. about the defence of redemption of OFCD's, offered by the two companies: 113. The SEBI (FTM) vide order dated 23.6.2011 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 tttrough the Red Herring Prospectus dated March 13, 2008 and October 6, 2009, issued respectively, to the subscribers of such Optionally Fully SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.) 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) and Sahara Housing Investment Corporation Limited are restrained from accessing the securities market for raising funds, till the time the aforesaid payments are made to the satisfaction of the Securities and Exchange Board of India. 5. Further, Mr. Subrata Roy Sahara, Ms. Vandana Bhargava, Mr. Ravi Shankar Dubey and Mr. Ashok Roy Choudhary are restrained from associating themselves, with any listed public company and any public company which intends to raise money from the public, till such time the aforesaid payments are made to the satisfaction of the Securities and Exchange Board of India." (emphasis is ours) . Thereafter, the SAT by its order dated 18.10.2011, upheld the order passed by the SEBI (FTM) dated 23.6.2011. The SAT having so held, directed the appellant companies (as was the (2014] 12 S.C.R. position of parties therein) to refund the money to the investors within six months (from the date of its order dated 18.10.2011 ) . . Thereupon, the matter was brought to this Court by way of appeals preferred by the two companies concerned, Le., Civil Appeal nos. 9813 and 9833 of 2011. On 28.11.2011, this Court passed the following interim order:- c "By the impugned order, "the appellants have been asked by SAT to refund a sum of Rs.17,400 crores approximately on or before 28.11.2011. We extend the period upto 9.1.2012." The above interim order was continued indefinitely, by this Court on 9.1.2012. The direction to refund, therefore, stood eclipsed. It is necessary to understand the cumulative effect of the interim orders passed on 28.11.2011 and 9.1 :2012. The above orders need to be interpreted, by keeping in mind the two affidavits dated 4.1.2012 filed by the two companies (in Civil Appeal nos. 9831 and 9833 of 2011 ). The above affidavits were filed in compliance of this Court's order, requiring the two companies to put on record, the manner in which the companies had applied the funds collected from the investors. This Court was informed that the funds were safe as they were either invested directly or indirectly, in real estate projects, or were held as current assets/cash and bank balances (as development rights on land and projects, and advances under joint ventures etc.). Believing the factual position depicted in the two affidavits, this Court.was satisfied, that the investors' deposits in the OFCD's of the two companies'were safe, therefore, the direction to refund (ordered by the SEBI (F TM) and the SAT), came to be stayed. But the orders of the SEBI (FTM) and SAT were not interfered with, in any other manner. G 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 SUBRATA ROY SAHARA v. UNION OF INDIA (JAGDISH SINGH KHEHAR, J.] directed, that such repayment could only be made "in cash A 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, B was norpermitted. 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 c we assume, that refund had actually been made) was therefore per se, illegal and unacceptable in terms 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 0 investors were refunded their deposits by way of cash, is per se another tactic, in the series of manoeuvres, adopted by the two companies to defeat the process of law. 114. This issue needs to be examined from another perspective. The different kinds of bonds (OFCDs) issued by E SIRECL and SHICL, as also, their maturity/conversion periods are depicted hereunder: SIRE CL S.No. Name of Term Minimum period Period for· F Bonds (months) for redemption conversion (months) into shares (months) (i) Abode Bond (ii) Real Estate Nil Bond (iii) Nirman Bond 48 (2014] 12 S.C.R. A SHICL S.No. Name of Term Minimum period Period for Bonds (months) for redemption conversion (months) into shares (months) (i) Multiple Bond 180 (ii) Income Bond 120 Nil c (iii) Housing Bond 180 It would be relevant to mention, that in furtherance of the terms and conditions attached to the different kinds of bonds, it was acknowledged, that except for Nirman Bond.s issued by SIRECL, no other bond could be redeemed before the year D 2013. The earliest redemption of the bonds, could have been made in 2013. The above factual position was expressed by the two companies in separate affidavits dated 4.1.2012 (filed before this Court). The affidavits in unmistakable terms also ·clearly narrated, that only one out of the six different types of E bonds issued, by the two companies was partially redeemable, in the fim!ncial year 2012-13. The companies also confirmed 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 F question of redeeming thousands of crores· of rupees of · deposits made towards the above OFCD's, in 2012 .itself. It needs to be understood, t~at 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 G 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 SUBRATA ROY SAHARA v. UNION OF INDIA (JAGDISH SINGH KHEHAR, J.) 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 wa.s, however, made during the course of hearing, that the investors were mounting a collective pressure for premature payments. The two companies (nor the petitioner, in this case) did not place any material on the record of its pleadings, at any stage to c demonstrate, that mobs had gathered at the companies collection centres, demanding redemptions. Had the above position been correct, the same would have definitely been noticed and reported by U1e media. There was not even an iota of such media reporting. It is therefore prima facie, not possible for us to accept the refund theory, projected on behalf of the two companies (oreven by the petitioner). Besides the factual position expressed in the instant paragraph, there are other reasons also, to come to the same conclusion. The same are separately being recorded hereinafter. 115. Factually there is no acceptable proof of such refund/ redemption of OFCD's by the two companies tq the investors. Therefore, we find no reason to accept per se, that any such· redemption was actually made. Our reasons for the same, are being narrated hereafter. Whe'l SIRECL was required to disclose, the sources from 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 4384.00 Limited 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:- When asked about the manner in which the aforesaid companies, had forwarded the above mentioned payments to C the two companies, the response was, that the above amounts were never released to the two companies. The case set up was, that the amounts were transferred to Sahara India (Firm). When asked to explain 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 D 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 E 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 ttie funds F 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 urider reference. The above explanation may seem to be acceptable G 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 crores could have been transacted by way of cash. The credibility of the books of accounts relied upon by the two companies has been dealt with separately hereinafter. SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] -116. We had also made efforts to obtain details in respect of redemption from the two companies, after Mr. Arvind Datar, learned Senior Counsel appearing for the SEBI, informed this Court, that the contemnors including the petitioner herein, had been asserting that they had refunded Rs.17,443 crores (approximately) in case of SIRECL and Rs.5,442 crores (approximately) in case of SHICL, but had not given any details, nor produced any relevant record, to show the source from which they had got the above moneys for repaymerit. This information, accordir:ig to Mr. Datar, had been sought by the SEBI from the alleged contemnors through a letter dated c 28.5.2013. Based on the above prayer, we passed the following order on 11.12.2013:- "Heard counsel on either side. Following our orders dated 28.10.2013, 1.11.2013 and 21.11.2013, Mr. C.A. Sundaram, learned senior counsel, has taken us through Annexure-A, filed alongwith IA.no. 82 of 2013, which gives details of various properties which the alleged contemnors have agreed to offer to SEBI. Reference was specifically made to properties mentioned at Item nos. 68, 69 and 70, which, according to Mr. Sundaram, would fetch a value of more than Rs.11,000 crores. Mr. Arvind Datar, learned Senior Counsel appearing for the SEBI. prayed for some time to verifv the same as well as 'the valuation reports filed along with the IA in support of that prayer. However. he submitted that if it is the stand of the alleged contemnors that they had refunded the amounts (Rs.17443 crores approximately in case of SIRECL and Rs.5442 crores approximately in case of G SHICU. then they should produce the relevant records. duly certified by a competent authority which is acceptable in a Court of law, indicating the sources from which they got the money for repayment, as requested vide SEBl's letter dated May 28. 2013. Put up on January 09, 2014 at 2.00 p.m." (emphasis is ours) 111. The fact that the companies had not furnished the above details, was brought to our notice by Mr. Arvind Datar on 9.1.2014. But the audacity and the fearlessness of the two companies is apparent, from the' reason expressed to this Court, for not furnishing the above information. We were informed, that we had not passed any express direction to the companies, to furnish the information, therefore the companies C 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 D 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 · SEBl'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 SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 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 Januarv 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." (emphasis is ours) If redemption of funds had actually been made by the two companies, they would have immediately furnished the information sought. Now that there was an express order to furnish the information, room for any excuse, was ruled out. Surprisingly, the position remained the same. The two companies never provided any authentic information. The SEBI, SAT and the Supreme Court, were required to accept the factum of redemption, just because the companies were asserting the factum of redemption. 118. To persuade the companies once again, to provide the information sought by the SEBI, we passed yet another explicit order on 28.1.2014. The same is being extracted hereunder: ""Heard Mr. Ram Jethmalani, learned Senior Counsel and Mr. Arvind P. Datar, learned Senior Counsel. Mr. Datar submitted that the Saharas have not disclosed the details as to when the refund was made. Reference was made to pages 6 to 9 of the reply affidavit filed today. Mr. Datar further submitted that the SEBI requires an explanation from Saharas with regard to the payments made on behalf of Sahara India Real Estate Corporation Ltd. (SIRECL) (partnership firm) by the following firms, as mentioned below:- (2014) 12 S.C.R. Rupees (In Crores) 1. Sahara Credit Co-operative Society Ltd. 13,366.18 2. Sahara India Commercial Corporation 4384:00 Limited 3. Sahara Q Shop 4. Ketak City Homes Ltd. c 5. Kiri! City Homes Ltd. 2258.32 19.43 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:- 1. SICCL 2. Sahara Q Shop Rupees (In Crores) 2479.00 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 H though in Appeal no. 49 of 2013 filed by SIRECL before the SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] · SAT, and in Appeal no. 48 filed by SHICL before the SAT, the two companies had committed to furnish their bank accounts, to establish redemption of payments. The relevant paragraph containing the undertaking given by SIRECL, is being extracted hereunder:- "(ee) The Appellant has invested the funds of OFCD as per the details mentioned in the Affidavit dated 04.01.2012 of Shri B.M. Tripathi filed before the Hon'ble Supreme Court in Civil Appeal No. 9833 of 2011 which is already on the record of the Hon'ble Supreme Court. Further, it is submitted that in order to make redemptions to the OFCD holders, the Appellant had to dispose of the investments. Amounts realized on such disposal were utilized to pay the investors, on redemption through Sahara India-Partnership Firm to make the redemptions. The redemptions made to investors are clearly reflected and found in the Books of D Accounts of Sahara India. The Appellant crave leave to refer to and rely upon bank accounts of Sahara India as and when produced." (emphasis is ours) An exactly similar commitment, in exactly the same words was made by SHICL, in Appeal no. 48 of 2013, filed by it before the SAT. Even though the stance adopted by the two companies was, that verification of redemptions of OFCD's could be established from bank accounts of Sahara India Limited, the said bank accounts depicting the said transactions were never disclosed. 119. All that needs to be noticed is, that in furtherance of the directions issued by this Court, Mr. S. Ganesh, learned Senior Counsel, during the course of hearing, produced general ledger entries of SIRE CL and SHICL, to authenticate the receipt of funds, out of which refunds were made. The general ledger entries brought to our notice merely indicated large amounts of inflow/outflow of cash. We had wished to extract the same A herein. The entire general ledger entries, placed for the consideration of the Court to demonstrate receipt of funds, out of which redemptions were made, would have exposed the companies' outrageous defence: But since the above entries would make this judgment unnecessarily bulky, we considered B it just and appropriate, to extract entries of only one day, i.e., of 31.5.2012. A day picked up randomly, without any comprehension, of its eventual effect. The date was chosen only with one objective, namely, it fell Y-'ithin the period during which the two companies claim to have made cash refunds to the c investors. The same are accordingly reproduced below:- SAHARA INDIA REAL ESTATE CORPORATION LTD. 6TH FLOOR, CASH & BANK GENERAL LEDGER voc. VOC. CHO. NARRATION SUB IE3IT CRE!lr ll'\TE NO. No. OFlHE CXXE \OJCHER 31/0512012 500009 072282 QEQl£ 1,40,00,000.00 1,40,00,000.00 9BV DEPCSTED BY SAHARA INDIA 31/05:2012 500014 AMT. OF 11,03,260.00 9JV E-TAXPAID TH. SAHARA INllA 31/0512012 500015 AMT. OF 11,11,321.00 OJV E-TAXPAID lH.SAHARA INDIA 31/0512012 500015 BEING JV 40,162.00 SJV NO. 5000120 OT. 260512 WRONGLY CR INSURANCE TO VEHICLE INSTEAD OF SINOW RECilFIED ANDTRF SUBRATA ROY SAHARA v. UNION OF !NOIA [JAGDISH SINGH KHEHAR, J.] TOWARDS INSURANCE AMT. IEU:T8) FROM SI 1/0512012 500016 BEINGfN 53,75,932.00 1JV N050000360 OT 10052012 WRONGLY CR TOSI INSTEAD OF SUNDRY ADV430109 PAGE TOTAL 53,75,932.00 55,61,27, 771.00 CARRED 22,86,45,04, 128.78 30,43, 18,43,975.28 FORWARD xxx xxx xxx xxx xxx . SAHARA !NOIA REAL ESTATE CORPORATION LTD. 6TH FLOOR, CASH & BANK GENERAL LEDGER voe. voe. Q1Q NARRATION SUB a:srr ffiE[X[ D6.TE NO. No. OFlHE CXx:E \A'.JUCHER BROUGHr 22,86,45,04, 128. 78 30,43, 18,43,975.28 FORWARD 31/0512012 50001 BEING AMT KSF 2,000.00 85JV OF SECURITY 0002 FUND PAID (13\,P MS SC YA LOYEE DAV MSS Tl-'ROJ3H ING} CVNO 2,000. 5000530DT 310512 31/0512012 50001 BEING 6,477.00 87JV AIMOUNTOF COMMISSION PAID DURING lHEMO MAY-2012 c . [2014] 12 S.C.R. 131/0512012 50001 BEING RENT 6.71,756.00 89JV OF WARE HOUSES PR<MDED FOR THE MIO MAY·2012AS Fffi AGRm.ENT 1/0512012 50001 BEING 15,24,021.00 91JV AMOUNT IE'OSfTE[) BY SAHARA INDIA EMPLOYEES & EMPLOYER'S c COlllTRIBUTlON PF, PENSION, ADM CHG ON PF, EDU FOR THEMIO APR-2012 131/0512012 50001 BEING 22,820.00 96JV AMOUNT OF EDU Ci-11\RGES FOR THE M/OMAY, 2012 PAID BY sAHARA INDIA '131/0512012 50002 BEING AMT 19,42,65,437.00 01JV REC8VABl..E FROMSICOL ASPER lERMNAllON AGREEMENT 1)1>,lEO 11.05.2012 TRFTO SAHARA INDIAASPER lET11:R 1)1>,lEO 24.05.2012 131/0512012 50002 BEING AMT 144,04,86,210.00 3JV REC8VABl..E SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHE!-IAR. J.] "FROMSICOL f>.SPER lERMNAllON AGREEMENT DAlED 11.05.2012 lRFTO SAHARA INDIA Af3 PER l.£TTER DAlED 25.05.2012 31/0512012 50002 BEING 5.37,87,17,066.00 07JV AMOUNT c RECEIVABLE FROJI SQSURPL AGAINST AGRffilENT OT. 31.05.12 lRFD.TO SAHARA INDIAJ>.S PER LETTER OT. 31.05.12 &ADV. OF4 SUBIALSO TRF 31/0512012 50002 BEING 4,57, 140.00 07JV AMOU!'fl" RECEIVABLE FROJI SQSURPL AGAINST AGREEMENT OT. 31.05.12 lRFD.TO SAHARA INDA/>SPER l£TTER OT. 31.05.12 &ADVOF4 SUBIALSO TRF. 31/0512012 50002 BEING AMT 14,37.~0,00,000.00 11JV RECEIVABLE FROJI [2014) 12 S.C.R. INDIA ASPER SIRECL I.ETIER Cl'\TED 11.05.12 31/0512012 50002 EisNG 1,33,66, 18, 11,270.00 13JV AMOUNT RECEIVABl..E FRCM SCCSL TOWARDS SALE OF c SHARES !'ON RECEIVABl..E FRCM SAHARA · INDIAAS PERLETER ENCLD. 31/0512012 50002 BEING AMT 10,464.00 15JV OF&NF [)E[)£TE!) OORING'IHE M/OMAY-12 31/0512012 50002 BEING AMT 50.00 16JV OFRNE& PENALTIES [)E[)£TE!) FRCM WORKER IN M/OMAY- 31/0512012 50002 BEING AMT 40.00 17JV [)E[)£TE!) TOWARDS APNA PARIWAR OORING'IHE M/OMAY-12 31/0512012 50002 BEING AMT 58.00 1BJV OFS&NF [)E[)£TE!) OORINGlHE M/OMAY-12 SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 31/0512012 50002 BEING 60.00 19JV AMOUNT RECO\/ERED FROMF.W. !JJRJNGTHE MIO MAY-12 31/05/2012 50002 BEING 48.00 20JV SERlllCE a-G RECEIVED INTHE M/OMAY- 31/05/2012 50002 BEING 57,69,750.00 21JV AMOUNT RECEIVED FRCM CUSTaVIER CURING THEM/O MAY-12 31/0512012 PAGE TOTAL 1,54,05, 15, 19,593.00 22,25,074.00 31/0512012 CARRIED 1,76,91,60,23,721.78 b0,43,40,69,049.28 FORWARD xxx xxx xxx xxx xxx SAHARA INDIA REAL ESTATE CORPORATION LTD. 6TH FLOOR, CASH & BANK GENERAL LEDGER voc. voc. CHO. NARRATION SUB W3rr ffiEllT Db.TE 00. No. OF THE CXXE VOUCHER BROUGHT FORWARD ~ '76,91,60,23, 721. 78 bo,43,40,69,049.28 31/0512012 500022 BEINGAMOIJT 1,08,966.00 2JV RECEIVED FRCM OJSTaAER !ll.RNG THEM/O MAY-12 c [2014) 12 S.C.R. 31/0512012 50002 BEll'r3 . 28,22,765.00 23JV AMOl.MT RECEIVED FRaA aJSra\.1ER DURll'r31HE M/OMAY-12 31/05/2012 50002 BEll'r3 49,547.00 24JV AMOUNT RECEIVED FRaA a.JS'TWER DURll'r31HE . c M/OMAY-12 31/0512012 50002 BEll'r3 11.00 25JV AMOUNT RECEIVED FROMF.W. DURll'r31HE M/OMAY-12· 31/0512012 50002 BEll'r3 37,39,86,45,750.00 26.N AMOUNT PAIDTO OOND HOLDERS DJRJl'r3 1HEM'O MAY-12 31/0512012 50002 BBNGINTT. 12,22,41,30,389.0C 27.N PAIDTO OOND HOLDERS DJRJl'r3 1HEM'O MAY-12 31/0512012 50002 BBNGAMT 59,72,79,970.00 28.N PAIDTO OOND HOLDER TOWARDS LOAN AGAINST crco DURINGlHE M/OMAY-12 SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 31/0512012 50002 BEING AMT 1.13.05.48.059.00 29JV RECOJERED FROM BOND HOl.DERS OORINGlHE M/OMAY-12 TOWARDS LOAN GIVEN AGAINST OFCD 31/0512012 50002 BEINGINTT 15,35,36.852.00 30JV RECOJERED FROM BOND HOl.DERS c OORINGlHE M/OMAY-12 TOWARDS LOAN GIVEN AGAINST OFCD 31/05/2012 50002 BEINGlDS 1,50,03,876.00 31JV IEl..CTED OORINGTI-IE M/OMAY-12 AGAINSTINTT PAIDTO EO\O I-OLDER 31/05/2012 50002 BEING 30,24,984.00 32JV AMOUNT OF CCMJISSKlN PAIDTO OlHERlHAN SIRECL STAFF ~1/05/2012 50002 l3EN3 1,61,17,023.00 34JV CXM/ISSION PAIDOORING lHEM'O MAY-12· 31/05/2012 50002 BEN3 7,020.00 35JV AMOUNT OF DEAlHHELP PAIDTO oct<'D I-OLDER (the sole cheque entry has bee'n 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 B 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 C 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 pet.itioner, 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 D 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 with ASH Associates UK 812, Kiran Sankar Roy Road, 2nd Floor Room no. 1 & 18, Kolkata – 700 001 Ph.: 22485039. Fax: 91-33-2243-4864 E-mail: durgadas@cal3.vsnl.net.in 1, Garstin Place, Unit 1 E, ORBIT; Kolkata – 700 001. Phone: 2248 7424 TO WHOM IT MAY CONCERN We, Mis. DE & Bose, Chartered Accountants, Statutory Auditor of M/s. Sahara India Real Estate Corooration Limited, registered office at Sahara India Bhawan, 1, Kapoorthala Complex, Aliganj, Lucknow – 226024, have SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] performed the following procedures in carrying out the Special Assignment: 1. We have examined books 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 Indian Real Estate Corporation Limited had subscription of Optionally Fully Convertible Debentures of approximately Rs.748.75 crores (covering 2,92,344 control numbers) through cheque. Further till March. 2013. Rs.1. 151.02 crores (covering 6, 70,677 control numbers) were paid to the Optionally Fully Convertible Debenture holders on account of redemption/pre-redemption through cheque. Date: 31.01.2014 Place: Kolkata For De & Bose Chartered Accountants Firm Regn. No. 302175E Sd/- (Subrata De) Partner Membership no. 054962" (emphasis is ours) The second certificate pertaining to SHICL is also being reproduced hereunder:- "CA DE & Bose in association with ASH Associates UK 8/2, Kiran Sankar Roy Road, 2nd Floor Room no. 1 & 18, Kolkata – 700 001 Ph.: 22485039. Fax: 91-33-2243-4864 c E-mail: durgadas@cal3.vsnl.net.in 1, Garstin Place, Unit 1E, ORBIT, Kolkata -'700 001. Phone: 2248 7424 TO WHOM IT MAY CONCERN We, Mis. DE & Bose, Chartered Accountants, Statutory Auditor of M/s. Sahara Housing Investment Corporation Limited, registered office at Sahara India Point, CTS-40 & 44, S.V. Road, Goregaon (West), Mumbai – 400 104, Maharashtra have performed the following procedures in carrying out the Special Assignment: 1. We have examined books 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. SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] Date: 31.01.2014 Place: · Kolkata For De & Bose Chartered Accountants Firm Regn. No. 302175E Sd/- (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 c OFCD's which were made by way of cheque only. Both the above certificates an~ silent on the redemptions made by way of cash. The firm of Chartered Accountants, therefore, did not choose to confirm the redemption of OFCD's made by way of . cash. This action must be deemed to be conscious, otherwise it was not necessary even to confirm the redemptions made by way of cheque. It was the clear contention of Mr. S. Ganesh, learned Senior Counsel before us, that approximately 95% of the OFCD's were refunded by cash, and only 5% of the OFCD's were refunded by way of cheques. Even if the certificates issued by the firm of Chartered Accountants were to be accepted to be correct (even though there seems to be no justifiable basis for the same), the authenticity of the general ledger entries was expressly only in respect of payments made by the two companies, by way of cheque. There is no authenticity whatsoever, in respect of payments made by way of cash. It is, therefore, not possible for us, on the basis of the record made available to us to accept, that any relevant material had been made available to us till date. We wish to express, that no other record, besides the above general ledger entries, was brought to our notice, to demonstrate the factum of alleged redemptions. Therefore, even a prima facie finding cannot be recorded, that the two companies had made available to this Court, any relevant material, wherefrom an inference could be drawn, that any redemption had ever been made to the investors, i.e., to the OFCD holders. (2014] 12 S.C.R. 120. We have examined the above issue of redemptions only for the petitioner's satisfaction. As a matter of law, it does not lie in the mouth of the contemnors, to agitate the issue of redemption. Insofar as the instant aspect of the matter is concerned, it is necessary to highlight the fact, that the order B dated 31.8.2012 directed the two companies, to deposit with the SEBI, the entire redeemable amount along with interest at· the rate of 15%. The above deposit had to be made within a period of three months, i.e., by 30.11.2012. The case set up by the two companies has been, that SIRECL had already c refunded Rs.17,443 crores to the investors, and SHICL had likewise refunded Rs.5,442 crores. The two companies therefore assert, that they cannot be required to make the same payment to the investors, for the second time. It would be pertinent to mention, that the two companies had .approached this Court by filing Civil Appeal no. 8643 of 2012 (and Writ D 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. E 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 F balance amount of Rs.17,400 cro'res. 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 G 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 substance in the contention advanced on behalf of the two H companies, that the moneys payable to the investors had been SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] refunded to them. Accordingly, there is no merit in the prayer, that while making payments in compliance with this Court's orders dated 31.8.2012 and 5.12.2012, the two companies were entitled to make deductions of Rs.17,443 crores (insofar as SIRECL is concerned) and Rs.5,442 crores (insofar as SHICL is concerned). Be that as it may, we have still retained a safety valve, inasmuch as, the SEBI has been directed to examine the authenticity of the documents produced by the two companies, and in case the SEBI finds, that redemptions have actually been made, the two companies will be refunded the amounts, equal to the redemptions found to have been c genuinely made. 122. We are persuaded to record, that either the submissions made to this Court on the subject of refunds made by the two companies were false; or the present projection of the two companies of their inability to pay the investors is false. One learned Senior Counsel for the petitioner, Mr. S. Ganesh, during the course of his narration, in order to substantiate the redemption of OFCD's to the tune of thousands of crores of rupees, referred to the collection of thousands of crores of rupees in successive months, during the year 2012, from the account books of the two companies. 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). This was done by collecting funds from all companies (and firms, under the conglomerate) of the Sahara Group. If it was possible to do that, at that juncture, in order to redeem the payments claimed by investors, we fail to understand why the same cannot be done · now. Specially when, as already noticed hereinabove, the book value/market value of the properties of the Sahara Group conglomerate, is to the tune of Rs.1,52,500 crores (as per its own website). It is after all, close to 2 years (about 20 months) since the order dated 31.8.2012 was pronounced, and close to 1'h years (about 17 months) since the order dated 5.12.2012 was passed. The maintainability of the present petition 123. At the very commencement of hearing, Mr. Arvind Datar, learned Senior Counsel representing the SEBI, raised a preliminary objection. He contested the very maintainability B 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 beh?lf, it was sought to be asserted, that the right to D 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 E 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 hac:J not experienced in our professional careers as Advocates, or even in approximately one and a half decades F of service rendered as Judges. It is necessary to point out, that when the above objection was raised, we had informed learned Senior Counsel representing the SEBI, that we would not stand on technicality, inasmuch as, if the instant petition was maintainable under one or the other provision of law, we would G read that provision in the title of the present petition, even though the same had not been expressly mentioned therein. 125. When confronted with the objection of maintainability, Mr. Ram Jethmalani, learned Senior Counsel, adopted the H positive stance, that there was no deficiency in the title of the SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] petition. In his view, the instant petition was maintainable under the maxim of ex debito justitiae, a power which has been expressly recognized by this Court in A.R. Antulay's case (supra). The decision in A.R. Anulay's case (supra) was rendered by a Constitution Bench of seven Hon'ble Judges of this Court. According to Mr. Ram Jethmalani, in the above judgment, the proposition canvassed by him, had been upheld by a majority of 5:2. He pointedly asserted, that we should record his submission to the effect, that he had ever contended that the instant petition was maintainable either under Article 32 of the Constitution of India, or jointly under Articles 129 and c 142 of the Constitution of India. In fact he submitted, that he had authored the present criminal writ petition. And in the process, he had extensively researched on the issue of jurisdiction, before filing this petition. His unambiguous assertion on the subject of jurisdiction was, that the petition had not been filed under a legislative enactment of the Constitution of India. It has been filed under the maxim ex debito justitiae. 126. In contradistinction to th~ submissions advanced at the hands of Mr. Ram Jethmalani, Mr. C.A. Sundaram, learned. Senior Counsel, who also represented the petitioner, invited our attention to the prayers made in the instant petition. To understand the tenor of his submission, the prayers made in the petition are being extracted hereunder: "PRAYER It is therefore most graciously prayed that this Hon'ble Court may be pleased to:- (a) Declare the order dated 04.03.2014 as void, nullity and non-est in the eyes of law; (b) Declare that the incarceration and the custody of the Petitioner are illegal which should be terminated forthwith; (c) issue such other writ in the nature of Habeas or [2014) 12 S.C.R. other writs, order or direction for release of the Petitioner from the illegal custody; (d) pass such 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 C 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, D 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 E 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 the instant petition was maintainable on ac·count of the jurisdiction evolved through the judgment F rendered by this Court in A.R. Antulay's case (supraJ: He also contended, that he should not be taken to have canvassed, that the present petition is maintainable under Article 129 read with Article 142 of the Constitution of India. 127. Dr. Rajeev Dhawan, was yet another learned Senior G Counsel, who represented the petitioner. His candid contention was, that he could not accept the submissions on the subject of jurisdiction, as had been canvassed by his colleagues, Mr. Ram Jethmalani and Mr. C.A. Sundaram. It was his assertion, that the prayers made in the instant petition could be sought H by the petitioner, only under Articles 129 and 142 of the SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] Constitution of India. As such, he submitted that the title of this petition be read by including therein, Articles 129 and 142 of the Constitution of India. 128. It is apparent from the submissions advanced at the hands of the learned counsel for the petitioner, that even learned counsel representing the petitioner, were not sure about the maintainability of the instant petition. Each of them while adopted an independent stance, and was unwilling to accept the position adopted by his other two colleagues. In the above view of the matter, we would have been happy to follow a simple -C course. To reject the petition's maintainability, on the basis of the majority view, expressed by the learned counsel representing the petitioner himself. Such rejection would be, by a majority of 2:1. Learned counsel were probably independently conscious of the legal position, that the petition was not maintainable. Unfortunately, this course is not open to a Court of law. We will have to examine the maintainability of the petition, by taking into consideration all the perspectives presented before us. The burden will naturally be three-folds than the usual. However, keeping in mind the eminence of the learned Senior Counsel who represented the petitioner, it is not possible for us, at first blush, to draw any such inference. We shall endeavour to independently determine the issue of maintainability, canvassed at the hands. of all the learned counsel representing the petitioner. In case we arrive at the conclusion, that the submission of any one of the learned counsel is acceptable, we would treat the instant petition as maintainable. 129. First arid 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 (2014] 12 S.C.R. A 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 B 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 c 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 revision application came to be filed. In the meantime, the Governor of the State of Maharashtra accorded sanction. R.S. Nayak thereupon, filed 0 a fresh complaint in the Court of the Special Judge, Bombay, alleging the commission of the same offences, which were the subject matter of the complaint earlier filed by him, before the Magistrate. The Special Judge, Bombay, issued summons to the appellant – A.R. Antulay. On entering appearance A.R. Antulay adopted the stance, that the Special Judge, Bombay, E had no jurisdiction to entertain the complaint. For the aforesaid objection, he placed reliance on Section 7 of the Criminal Law Amendment Act, 1952. He also asserted, that cognizance could . not be taken by the above Court, on the basis of a private complaint. The Special Judge, Bombay, overruled the F objections raised by A.R. Antulay, and listed the matter for recording evidence of the complainant's witnesses. The aforesaid order of the Special Judge, Bombay, was assailed by A.R. Antulay, by filing a criminal revision petition, before the Bombay High Court. The said petition was dismissed. The G order of the High Court was then assailed before this Court. This Court granted special leave to A.R. Antulay, on the issue as to whether, a private complaint was maintainable. In the meantime, an objection was raised by A.R. Antulay before the Special Judge, Bombay, to the effect, that he could not be H prosecuted without sanction of the competent authority. His SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] instant plea was based on the fact, that he still continued to be a Member of the Legislative Assembly, and as such, sanction was an essential pre-condition, before his prosecution. The above plea, was accepted by the Special Judge, Bombay. R.S. Nayak, then filed a criminal revision petition before the High Court, questioning the above order. The High Court upheld the order passed by the Special Judge, Bombay. R.S. Nayak then approached this Court. This Court granted special leave, against the decision of the High Court, holding that sanction was necessary before A.R. Antulay could be prosecuted. The aforesaid Criminal Appeals were heard by a five-Judge c Constitution Bench of this Court. Even though, the same Bench heard the matters, the two appeals were disposed of by two separate judgments. The appeal preferred by R.S. Nayak was accepted. This Court held, that as a Member of the Legislative Assembly, A.R. Antulaywas 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 arid 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 Single Judge of the High Court of Bombay in 1984. A.R. Antulay again contested the maintainability of the trial proceedings, before the A High Court of Bombay. The learned Single Judge hearing the matter, rejected the plea canvassed at the hands of AR. Antulay by concluding, that the High Court was bound by the order passed by this !::ourt. In the above' circumstances, AR. Antulay filed a writ petition before this Court, under Article 32 of the B Constitution of India. A two-Judge Division Bench of this Court, dismissed the petition. Whilst one of the Judges expressed the view, that the learned Single :Judge of the Bombay High Court was not only justified, but was also duty bound to follow the decision of this Court, which was binding on him; the second c . Judge on the Bench expressed the view, that the challenge raised by the petitioner (by assailing the validity of the judgment rendered by this Court, as incorrect or a nullity) could not be entertained. The second Hon'ble Judge, therefore, granted liberty to A.R. Antulay, to approach this Court with an 0 appropriate review petition, if the petitioner -AR. Antulay was so advised. Having examined the witnesses produced by R.S. Nayak before the learned Single Judge of the High Court, 21 charges came to be framed (out of 43 draft charges, which were placed before the Court, for its consideration) against AR. Antulay. At the instance of the rival parties, the matter E again came to this Court, for determining the validity of the order framing only 21 charges. In the juqgment rendered by this Court in A.R. Antulay's case (supra), this Court held, on facts, that a prima facie case had also been made out against A.R. Antu lay, in respect of some of the allegations, in furtherance whereof no charges had been framed. This Court accordingly, set aside the order of the High Court refusing to frame charges, in respect of some of the alleged offences, on which A.R. Antu lay had been discharged. Thereupon, the learned Single Judge of the High Court framed 79 charges against A.R. Antulay. The G High Court simultaneously rejected the application made by A.R. Antu lay, for proceeding against the alleged co- conspirators. A.R. Antulay, then challenged the aforesaid order of the High Court before this Court. He, inter alia, questioned the High Court's jurisdiction to try the case. He alleged that his H trial by the Single Judge of the High Court, was in violation of SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.) 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 c 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 diredion, 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 Parliament. He also asserted, that his right of revision to the High Court under Section 9 of the Criminal Law Amendment Act, 1952, had been taken away. It was also his submission, that had the Special Judge, Bombay conducted his trial, he would have had a right of first appeal, to the High Court. The .above right which was vested in him under Section 9 of the Criminal Law Amendment Act, 1952, was also allegedly taken away. He also asserted, that under the provisions of the Criminal Law. . Amendment Act, 1952, besides preferring an appeal to the High Court, he would have a right of a second appeal before this Court under Article 136 of the Constitution of India. It was his contention, that the right to prefer a second appeal, was also sought to be taken away from him. Besides, alleging the deprivation of the above valuable rights, it was also the contention of A.R. Antu lay before this Court, that this Court had suo motu directed withdrawal of the case against A.R. Antu lay from the Special Judge, Bombay, and transferred the same to the High Court without affording any opportunity of hearing to [2014) 12 S.C.R. him. It was, therefore, sought to be asserted, that the above order passed by the High Court, was clearly in violation of the principles of natural justice, and accordingly, the same violated his fundamental rights, causing grave prejudice to him, and therefore, deserved to be set aside. c 130. From the judgment rendered by this Court in A.R. Antulay's case (supra), Mr. Ram Jethmalani relied upcin the following observations:- "79 …. These directions were void because the power was not there for this Court to transfer a proceeding under the Act of 1952 from one Special Judge to the High Court. This is not a case of collateral attack on judicial proceeding: it is a case where the court having no court superior tci it rectifies its own order. We recognise that the distinction between an error which entails absence ofiurisdiction and an error made within the jurisdiction is verv fine. So fine indeed that it is rapidly being eroded as observed by Lord Wilberforce in Anisminic Ltd: v. Foreign Compensation Commissioner, (1969) 1 All E.R. 208. Having regard to the enormity of the consequences of the error to the appellant and by reason of the fact that the directions were given suo motu, we do not find there is anything in the observations of lttavira Mathai v. Varkey Varkey (1964) 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. In 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 (acts and circumstances of this case. SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 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 for the people of the State, c unfortunate for the country as a whole, unfortunate for the future working of democracy in this country which, though is not a plant of an easy growth yet is with deep root in the Indian polity that delay has occurred due to procedural wrangles. The appellant may be guilty of grave offences alleged against him or he may be completely or if not completely to a large extent, innocent. Values in public life and perspective of these values in public life, have undergone serious changes and erosion during the last few decades. What was unheard of before is commonplace today. A new value orientation is being undergone in our life and in our culture. We are at the threshold of the cross-roads of values. It is, for the sovereign people of the country to settle these conflicts yet the courts have vital roles to play in such matters. With the avowed object of speedier trial the case of the appellant had been transferred to the High Court but on grounds of expediency of trial he cannot be subjected to a procedure unwarranted by law. and contrary to the constitutional provisions. The appellant may or may not be an ideal politician. It is a fact, however, that the allegations have been brought against him by a person belonging to a political party opposed to his but that is not the decisive factor. If the appellant – Shri Abdul Rehman Antulay has infringed law, he must be dealt with in accordance with the law. We proclaim and pronounce that no man is above the c law, but at the same time reiterate and declare that no man can be denied his rights under the Constitution and the laws. He has a right to be dealt with in accordance with · the law and not in derogation of it. This Court. in its anxiety to facilitate the parties to have a speedy :rial gave ,directions on February 16, 1984 as mentioned hereinbefore without conscious awareness of the exclusive jurisdiction of the Special Courts under the 1952 Act and that being the only procedure established by law, there can be no deviation from the terms of Article 21 of the Constitution of India. That is the only procedure under which it should have been guided. By reason of giving the directions on February 16. 1984 this Court had also unintentionally caused the appellant the denial of rights under Article 14 of the Constitution by denying him the equal protection of law by being singled out for a special 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. xxx xxx xxx xxx xxx 83 …. lt appears that in giving directions on February 16, 1984, this Court acted per incuriam inasmuch ii 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 SUBRATA ROY SAHARA v. UNION OF INDIA (JAGDISH SINGH KHEHAR, J.] technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis." (emphasis is ours) Based on the above parameters recorded in A.R. Antulay's case (supra), Mr. Ram Jethmalani, learned Senior Counsel vehemently contended, that the maxim of actus curiae neminem gravabit, meaning, the act of a Court will not prejudice any man, is founded on the principle of Justice and good conscience. The above principle affords a safe and certain guide for the administration of law. It was pointed out, that Courts in England abide by the principle, that the size of the Bench did not make any difference for the adjudication of a controversy. It was submitted, that the . aforesaid concept was not valid in this country. We were informed, that the law laid down by this Court established a hierarchy within this Court itself, whereby decisions of a larger Bench binds a smaller Bench. It was submitted, that a larger Bench can override the decision of a smaller Bench. It was, therefore pointed out, that when this Court in A.R. Antulay's case (supra) examined the validity of the order passed by this Court, whereby the trial pending before the Special Judge, Bombay under the Criminal Law (Amendment) Act, 1952, was transferred to the High Court, a Constitution Bench of this Court declared the above transfer order as being void and a nullity in law. It was submitted, that if the above determination could be rendered, the controversy in hand needs to be similarly redressed, so as to do justice to the petitioner. It was submitted, that the principle of actus curiae neminem gravabit would apply with much greater force in the present c case on account of the fact, that the petitioner has been deprived of his liberty and has been remanded to jail without the authority of law. It was submitted, that the impugned order dated 4.3.2014 was totally unjust, without any judgment of conviction, without proper charges being framed or notice issued, and without a hearing. It was also the contention of the learned Senior Counsel, that the principle of audi alteram partem was given a complete go- by, in the facts and circumstances of this case. It was accordingly the submission of the learned Senior Counsel for the petitioner, that even 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 th.e 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 E this Court in .AR. 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 F 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 sp.ecially, when the challenged order had resulted in the incarceration cif the concerned petitioner. 132. In response to the contentions advanced at the hands of the learned Senior Counsel for the petitioner, Mr. Arvind Datar, learneij Senior Counsel representing the SEBI, invited our attention to the following observations made in A.R. Antulay's case (supra):- SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] "107. There is still another aspectwhich should be taken note of. Finality of the orders is the rule. By our directing recall of an order the well settled propositions of law would not be set at naught. Such a situation may not recur in the ordinary course of judicial functioning and if there be one certainly the Bench before which it comes would appropriately deal with it. No strait-jacket formula can be laid down for judicial functioning particularly for the apex Court. The apprehension that the present decision may be used as a precedent to challenge judicial orders of this Court is perhaps misplaced because those who are c familiar with the judicial functioning are aware of the limits and they would not seek support from this case as a precedent. We are sure that if precedent value is sought to be derived out of this dei::ision. the court which is asked to use this as an instrument would be alive to the peculiar facts and circumstances of the case in which this order is being made." (emphasis is ours) Based on the above, it was submitted by the learned counsel, that challenge to an order passed by this Court would be a rarity, and not a common feature. He emphatically pointed out, that if the submission advanced at the hands of the learned counsel for the petitioner was to be accepted, no order passed by this Court would ever attain finality. And therefore, the jurisdiction of this Court would be open to exploitation, any number of times, if the petitioner/respondent continued to feel, that injustice had·been done to him. 133. We are of the view, that reliance by the learned Senior Counsel for the petitioner on Supreme Court Bar Association's case (supra) and on M.S. Ahlawat's case (supra) is wholly misconceived on account of the determination rendered by this Court in Rupa Ashok Hur'ra's case (supra), wherein in paragraph 13, a five-Judge Constitution Bench, observed as u~~ "13. It is. however. true that in Supreme Court Bar Association VS. Union of India. (1998) 4 sec 409, a Constitution Bench and in M.S. Ahlawat vs. State of Harvana. (2000) 1 SCC 278. a three-Judge Bench. and in other cases different Benches. quashed the earlier judgments/orders of this Court in an application filed under Article 32 of the Constitution. But in those cases no one joined issue with regard to the maintainabilitv of the writ petition under Article 32 of the Constitution. Therefore. those cases cannot be read as authority for the proposition c 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 D 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 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 que;,,lion fell to be considered by this -Court in Special Reference No. 1 of 1964, {1965) 1 S.C.R. 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, if 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 SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] to determine for itself questions about its own jurisdiction. That is why this Court did not accede to the proposition that in passing the order for interim bail, the High Court can be said to have exceeded its jurisdiction with the result that the order in question was null and void. In support of this view, this Court cited a passage from ·Halsbury's Laws. ·of England where it is observed that:- "prima facie. no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so. while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court." (Halsbury's Laws of England, Vol. 9, p. 349).". If the decision of a superior Court on a question of its jurisdiction is erroneous. it can. of course. be corrected by appeal or revision as may be permissible under the law: but until the adjudication by a superior Court on such a point is set aside by adopting the appropriate course. it would not be open to be corrected by the exercise of the writ jurisdiction of this Court." (emphasis is ours) 135. Since it is not the case of the petitioner before this Court, that some legislative or constitutional provision had curtailed the jurisdiction of this Court, from passing an order, of the nature which is impugned through this criminal writ petition, there can be no doubt that the above order has been passed by this Court in legitimate exercise of its jurisdiction. This will have to be the natural determination arising out of the law declared in Naresh Sridhar Mirajkar's case (supra), which is the very judgment, on which learned counsel for the petitioner has placed reliance. .. A 136. Independently of the above purely legal determination, we have under a separate heading examined the issue, whether 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 B jurisdiction. It is therefore apparent, that the impugned order dated 4.3.2014, does not suffer from any jurisdictional enor. 137. We are in absolute agreement with the submissions advanced by Mr. Arvind Datar, learned Senior Counsel for the C respo'ndent. In view of the factual position depipted 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 D 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 E the petitioner herein, on the grounds of a jurisdictional error, or non compliance of the rules of natural justice have been founq to be not made out in this case. That was the only basis ·of interference in Naresh Sridhar Mirajkar's case {supra). We are however persuaded, to record another reason for not accepting F the maintainability of the present writ petition, on the basis of Naresh Sridhar Mirajkar's case {supra). In this behalf it is relevant to notice, from the factual background of Naresh Sridhar Mirajkar's case {supra) which has been traced hereinabove, that A.R. Antulay, had earlier approached this G Court, by filing a writ petition under Article 32 of the Constitution of India Gust in the same manner, as the petitioner herein has . · approached.this Court). A two-Judge Division Bench of this Court dismissed the petition by observing inter alia, that a writ petition challenging the validity of an order and judgment passed H by the Supreme Court as nullity or otherwise incorrect; could SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] not be entertained. The said writ petition was accordingly dismissed (Abdul Rehman Antulay v. Union of India, Writ Petition (Criminal) no. 708 of 1984, decided on 17.4.1984; reported as Appendix, (1988) 2 SCC 764). In the above view of the matter also, even on the basis of the very judgment relied upon by the learned counsel, we have no other alternative but to conclude, that the instant writ petition is not maintainable, to assail the impugned order passed by this Court on 4.3.2014. 139. We shall· now endeavour to deal with the submissions advanced at the hands of Mr. C.A. Sundaram, learned Senior Counsel appearing for the petitioner, whose express submission was, that the instant criminal writ petition, filed by the petitioner was maintainable under Article 32 of the Constitution of India. The sum ahd substance of the submission advc;inced by the learned counsel, has already been noticed above, and is accordingly not being repeated herein again, for reasons of brevity. Before dealing with the issue in hand, it would also be relevant to mention, that while the long drawn . hearing in the instant matter was coming to an end, Mr. Ram Jethmalani, learned Senior Counsel, had a slight change of heart. His submission on second thoughts was, that the contention advanced at the hands of Mr. C.A. Sundaram, learned Senior 9ounsel, to the effect that the instant petition was maintainable under Article 32 of the Constitution of India, had merit. In the succeeding paragraphs, we shall deal with the . submissions advanced by Mr. C.A. Sundaram, to demonstrate 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 bejng a pure question of law, was canvassed at the hands of the learned counsel for the rival parties, by placing reliance on jµdgments 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 cur 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 B 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 necessarv 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 is inter-parties. its validity cannot be challenged by invoking the jurisdiction of this Court under Article 32. though the said order may affect the aggrieved party's fundamental rights. His whole argument before us has been that the impugned order affects the fundamental rights of a stranger to the proceedings before the Court: and that, he contends. justifies the petitioners in moving this Court under Article 32. It is necessarv to examine the validitv of this argument. xxx xxx xxx xxx xxx. 59. We have referred to these decisions to illustrate how the jurisdiction to issue writs if certiorari has been exercised either by the High Courts under Article 226 or . by this Court under Article 32. Bearing these principles in mind, let us enquire whether the order impugned in the present proceedings can be said to be amenable to the jurisdiction of this Court under Article 32. We have already .G seen that the impugned order was passed by the learned Judge after hearing Jhe· parties and it was passed presumably because he was satisfied that the ends of justice required that Mr. Goda should be given protection by prohibiting the publication of his evidence in the newspapers during the course of the trial. This matter was SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] directly related to the trial of the suit; and in exercise of his inherent power, the learned Judge made the order in the interests of justice. The order in one sense is inter-parties, because it was passed after hearing arguments on both the sides. In another sense, it is not inter-parties inasmuch as it prohibits strangers like the petitioners from publishing Mr. Goda's evidence in the newspapers. In fact, an order of this kind would always be passed after hearing parties before the Court and would in every case affect the right of strangers like the petitioners who, as Journalists, are interested in publishing court proceedings in newspapers. Can it be said that there is such a difference between . normal orders passed inter-parties in judicial proceedings, and the present order that it should be open to the strangers are who affected.by the order to move this Court ·under Article 32? The order. no doubt, binds the strangers: but. nevertheless, it is a judicial order and a person aggrieved by it. though a stranger, can move this Court by appeal under Article 136 of the Constitution. Principles of Res judicata have been applied 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 thaf 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 c 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) SUPREME COURT REPQRTS . A 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 s examining the above proposition in respect of an alleged violation under Article 19 of the Constitution of India, this Court in the conclusions drawn in lhe above extracted paragraphs, clearly held, that a writ petition would not be maintainable against an order passed by this very Court, even though it c alleged violation of a fundamental right. (ii) Reference was next made to the decision rendered by a three-Judge Division Bench of this Court in Col. Dr. B. Ramachandra Rao v. The State of Orissa & Ors., (1972) 3 SCC 256. Even though during the course of hearing, learned counsel D for the rival parties read before us paragraphs 5 and 7 of the present judgment, we are of the view that for the issue in hand, the ·purpose would be served by extracting herein paragraph 6, which is being reproduced hereunder:.: "6. As admitted by both sides the petitioner was sentenced to imprisonment on conviction by the Third Additional Sessions Judge, Secunderabad in October, 1965. Unfortunately, neither side has been able to inform us as to whether that sentence has expired or is still running. The jail authorities at Bhubaneshwar, we have little doubt, must have information whether or not the petitioner, when brought there, was undergoing a sentence of imprisonment and how much sentence remain to be undergone, and the petitioner also, in our opinion, must be presumed to be aware of the sentence imposed on him. We need only add that in case the petitioner is undergoing the sentence of imprisonment imposed on him by competent Court then too writ of habeas corpus cannot be granted. This position is well settled." (emphasis is ours) SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] A perusal of the above judgment leaves no room for any doubt, that this Court clearly declared, that in case a Court of competent jurisdiction, had passed an order of imprisonment, the order could not be assailed by praying for a writ in the nature of habeas corpus. A writ of habeas corpus can only be sought from this Court, in exercise of its jurisdiction under Article 32 of the Constitution of India. In the above view of the matter it is apparent from the conclu~ions drawn by this Court, that a writ petition was held to be not maintainable, against an order of imprisonment passed by a Court of competent jurisdiction. c (iii) A writ petition was filed in the Court, to assail the validity of a conviction order, whereby the person concerned had been sentenced to life imprisonment. This Court, in Jharia . S/o Maniya v. State of Rajasthan & Anr., (1983) 4 SCC 7, held that the writ petition was not maintainable. Incidentally, ii 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· irT\prisonment for life, while recording their acquittal under Section 302. On appeal, a Division Bench of the Rajasthan c (2014] 12 S.C.R. High Court (Jaipur Bench) in Criminal Appeal No. 219 of 1977 by judgment dated July 3, 1980 maint~ined the conviction of the petitioner under Section 302 read with Section 34 but acquitted his two associates giving them the benefit of doubt. Dissatisfied with the judgment of the High Court, the petitioner applied to this Court for grant of special leave under Article 136 of the Constitution. The special leave petition was dismissed by this Court on February, 23, 1981. An application for review was also dismissed on November 19, 1981. Thereafter. the petitioner filed this petition under Article 32 assailing his conviction and sentence. The petitioner seeks the issuance of a writ of mandamus directing the State of Rajasthan to forbear from giving effect to the judgment and sentence passed by the learned Sessions Judge as also the judgment of the High Court as well as the order passed by this Court dismissing the special leave petition. He further seeks -a declaration that his conviction under Section 302 read with Section 34 by the High Court was illegal and therefore his detention in jail was without the authority of law and in violation of Article 21 read with Articles 14 and 19 of the Constitution. 3. The.petitioner contends that in view of the decisions of thi~ Court in Krishna Govind Patil v. State of Maharashtra, AIR 1963 SC 1413, Maina Singh v. Stale! of Rajasthan, AIR 1976 SC 1084 and Piara Sinnh v. State of Punjab, (1980) 2 SCC 401 , his convjction under Section 30iread with Section 34 was illegal as he had been charged with two other named persons who have bee'n acquitted by the High Court and therefore he cannot be convicted of an offence· punishable under Section 302 read with Section 34. Upon this basis. the contention is that the petitioner has been deprived of his life and liberty without the authority of law in violation of Article 21 read with Articles 14 and 19 of the Constitution. It is represented to us that the contention based upon the decisions of this Court had been SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] advanced during the course of the hearing of the special leave petition, put both the special leave petition and the application for review have been dismissed and therefore the petitioner has no other remedy except to approach this Court for appropriate writ, ·direction. or order under Article 32 of the Constitution. 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 fcir an offence punishable under Seciion 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, this Court arrived at the conclusion, that a writ petition would not be maintainable to assail a judicial order. (iv) Reference may now be made to the decision rendered by this Court in Ranjit Singh v. Union Territory of Chandigarh & Anr., (1991) 4 sec 304. It would be relevant to mention, that the instant judgment was relied upon by Mr. Mukul Gupta, learned Senior Counsel, who represented the Union of India. (2014] 12 S.C.R. · A The above judgment also dealt with the issue whether a writ petition was maintainable under Article 32 of the Constitution of India, to assail the directions contained in a judgment rendered by this Court. From the above judgment, the observations recorded in paragraphs 5 and 11 are considered B essential for the purpose in hand, and are accordingly being c extracted hereunder:- "5. We may straightaway mention thai the question of grant of relief u"nder Article 32 of the Constitution does not arise on the above facts. The petitioner's incarceration is the result of a valid judicial order and therefore. there can be no valid claim to the infringement of any fundamental right which alone can be the foundation for a writ under Article 32 of the Constitution. The only question,. it appears, – therefore, is about the correct construction of the direction given by this Court in its judgment dated September 30, 1983 in Criminal Appeal No. 418 of 1982 in the light of the true meaning of Section 427(2) Cr.P.C. )()()( )()()( xxx xxx xxx 11. We have ·alreadv stated that this petition for the issuance of a writ under Article 32 of the Constitution is untenable. We have, therefore, treated it as a petition for clarification of the judgment dated September 30, 1983 in Criminal Appeal No. 418of1982. Accordingly, the petition is disposed of with this clarification." (emphasis is ours) Yet again, in the above judgment, this Court arrived at the G conclusion, that a .writ petition was not maintainable under Article 32 of the Constitution of India, to assail an order passed by this Court. (v) Reference. was also made to the recent decision rendered by this Court in Manubhai Ratilal Patel v. State of SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] Gujarat, (2013} 1 SCC 314. In the above judgment, this Court referred to the earlier judgments rendered by this Court, and approved the issue, which is subject matter of consideration at our hands. The observations which are relevant, are being extracted 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 machinel")' 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 c 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 fundamen.tal 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 territoty of India. The most effective way of doing the same is by way of exercise of power by the Couri by. issuing a writ of habeas corpus." In the said case, a reference was made to Halsbury's Laws of England, 4th Edn. Vol. 11, para 1454 to highlight that a writ of habeas corpus is a writ of highest constitutional importance being a remedy available to .the lowliest citizen against the most powerful authority. c (2014] 12 S.C.R. 16. Having stated about the significance of the writ of habeas corpus as a weapon for protection of individual liberty through judicial .Process, it is condign to refer to certain authorities to appreciate how this Court has dwelled upon and expressed its. views pertaining to the legality of the order of detention, especially that ensuing from the order of the court when an accused is produced in custody befor~ a Magistrate after arrest. It is also worthy to note that the opinion of this Court relating to the relevant stage of delineation for the purpose of adjudicating the legality of the order of detention is of immense importance for the present case. 17. In Col. Dr. B. Ramachandra Rao v. The State of Orissa, {1972) 3 sec 256, it was opined that a writ of habeas corpus is not granted where a person is committed to jail custody by a competent court by an order which prima facie does not appear to be without jurisdiction or wholly illegal." (emphasis is ours) Yet again, therefore, this Court affirmed the conclusion, that a writ petition cannot be filed to raise a challenge against a validly passed judicial order. In view of the clear expression of law recorded in all the F above judgments, without any divergence of view whatsoever, we have no other alternative but to conclude, that it was not open for the petitioner to file the instant writ petition, to assail the order passed by this Court, in exercise of its jurisdiction under Articles 129 and 142 of the Constitution.of India. As a · G matter of abundant caution, it is considered necessary to record, that even though reference was made to M.S. Ahlawat's case (supra) and Supreme Court Bar Association's case (supra), wherein this Court had entertained a challenge to earlier orders passed by it, under Article 32 of the Constitution of India, H yet, the above two judgments, cannot be treated to have any SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] bearing on the determination of the issue in hand, because in the aforesaid two cases, the maintainability of the petitions was not contested. Our instant conclusion, has also been recorded 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 ahy 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 President may by order prescribe filSubject to·the provisions of any law made in this behalf by Parliament, the Supreme Court shall, as respects the whole of the territory of India, have all and every power to make any order for the purpose of securing the attendance of any person, the discovery or production of any documents, or the investigation or punishment of any contempt of itself." Relying on the above provisions, learned Senior Counsel asserted, that "maintainability exists, because we can all make mistakes, and the mistakes that we make, need to be corrected". The submission of the learned counsel in this behalf was, that in the above view of the matter, jurisdiction could truly B be traced, to Articles 129 and 142 for correcting mistakes. It was the submission of the learned counsel, that this Court being a Court of record, had unlimited jurisdiction to correct all mistakes committed by it. Referring to Article 142 of the Constitution of India it was submitted, that it was the pious C obligation of Court to do complete justice, and accordingly, Whenever injustice was traceable, it was imperative for this Court to rectify the same. On the subject under reference, learned Senior Counsel relied on the decision in Rupa Ashok Hurra's case (supra) and invited our pointed attention to 0 following observations recorded therein:- "23. These contentions pose the question. whether an order passed by this Court can be corrected under its inherent powers after dismissal of the review petition on the ground that it was passed either without jurisdiction or in violation of the principles of natural justice or due to unfair procedure giving scope for bias which resulted in abuse of the process of the' Court or miscarriage of justice . to an aggrieved person. xxx xxx xxx 49. The upshot of the discussion in our view is that this Court, to prevent abuse of its process and to cure a gross miscarriage of justice, may re-consider its judgments in exercise of its inherent power. 50. The next step is to specify the requirements to entertain such a curative petition under the inherent power of this Court so that floodgates are not opened for filing a second review petition as a matter of course in the guise of a curative petition under inherent power. It is common SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] ground that except when verv strong reasons exist. the Court should not entertain 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 Court has framed rules, for entertaining curative petitions. Such curative petitions, when entertained, are placed before a five-Judge Bench including the senior most three Judges of this Court. Placing reliance on Rupa Ashok Hurra's case (supra) evidences, that the petitioner was aw.are of the jurisdiction of this Court under Article 137 of the Constitution of India for filing a review petition, as also, the permissibility of filing a curative petition, after the concerned party had not succeeded, in the review petition. Unfortunately, the petitioner has not chosen either of the above jurisdictions. The instant petition has been styled as a criminal writ petition. The instant petition is not maintainable as no fresh petition is shown to be maintainable, under the provisions (Articles 129 and 142 of the Constitution A of India), relied upon by the learned Senior Counsel. Moreover, our deliberations on the merits of the controversy further reveals, that there is neither any jurisdictional error, nor any error in law has been shown to be made out, from the impugned order c dated 4.3.2014. 144. For all the reasons recorded hereinabove we are of the view, that the instant petition is not maintainable and the same is, therefore, liable to be dismissed on the ground of maintainability. XI. Conclusions 145. In view of our findings recorded hereinabove, our conclusions are summarized hereunder:- I. We find no merit in the contention advanced on behalf D of the petitioner, that we should recuse ourselves from the hearing of this case. Calculated psychological offensives and mind games adopted to seek recusal of Judges, need to be strongly repuls.ed. We deprecate such tactics and commend a similar approach to other Courts, when they experience such E behaviour. (For details, refer to paragraph:nos. 1 to 14). II. Disobedience of orders of a Court strikes at the very root of the rule of law, on which the judicial system rests. Judicial orders are bound to be obeyed at all costs. Howsoever grave F the effect may be, is no answer for non-compliance of a judicial order. Judicial orders cannot be permitted to be circumvented. In exercise of contempt jurisdiction, Courts have the power to enforce compliance of judicial orders, and also, the power to punish for contempt. (For details, refer to paragraph nos. 15 G to 19). Ill. The facts of this case reveal, that the two companies 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 .. SUBRATA ROY SAHARA v. UNION ·OF INDIA [JAGDISH SINGH KHEHAR, 'J.] 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 c Court to comply with the orders da~ed 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 means to secure compliance of this Court's orders dated 31.8.2012 and 5.12.2012, were evaded and skirted. Even proposals to secure the payments (as against, the payment itself) to be made to the investors, in terms of this Court's orders, were systematically frustrated. Similar proposals made unilaterally by learned Senior Counsel representing the two companies and the petitioner himself, turned out to be ploys to sidetrack and derail the process of . law. Such unilateral proposals, were unilaterally withdrawn. Since all the efforts to cajoie the two companies and the petitioner were methodically circumvented, we started adopting sequentially harsher means to persuade compliance of this Court's orders dated 31.8.2012 and 5.12.2012, leading finally to the passing of the impugned order dated 4.3.2014. (For details, refer to paragraph nos. 40 to 55). V. The Code of Civil Procedure, 1908, which regulates civil proceedings in India, expressly contemplates arrest and detention for the enforcement of a money decree. And the · 788 [2014) 12 S.C.R. A Code of Criminal Procedure, 1973, which regulates criminal proceedings in India, envisages arrest and detention as a mean for enforcing financial liability. The submission made by the learned Senior Counsel for the petitioner to the effect, that execution of a money decree or enforcement of a financial B liability by way of arrest and detention was a procedure unknown to law, is therefore, wholly misconceived. (For details, refer to paragraph nos. 56 to 61 ). VI. The submission made by the learned counsel for the C petitioner, that this Court was obliged to comply with the procedure contemplated under Section 51, and rules 37 and 40 of Order XXI, of the Code of Civil Procedure, 1908, before ordering the arrest and detention of the petitioner (and the other contemnors) is devoid of any merit, because Section 51 of the Code of Civil Procedure, 1908 and the other allied provisions D referred to above, are not applicable to actions emanating out of the SEBI Act. So also, rule 6 of Order XIII of the Supreme Court Rules,-1966, has no applicability, with reference to the· SEBI Act. Be that as it may, this Court before passing the impugned order dated 4.3.2014 had immaculately followed the E procedure contemplated under the provisions of the Code of Civil Procedure, 1908, as were relied upon by the learned counsel for the petitioner, before ordering the petitioner's (and the other contemnors') arrest and detention. The submission of the learned counsel for the petitioner, so as to avoid his · F arrest and detention, based on the judgment rendered by this Court in Jolly George Varghese & Anr. v. Bank of .Cochin, (1980) 2 sec 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. G 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 SUBRATA ROY SAHARA v. UNION OF INDIA (JAGDISH SINGH KHEHAR, J.] 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 any movable or immovable property. A number of opportunities of hearing were given to the learned counsel representing the two companies and the contemnors. Finding the attitude of the c contemnors defiant and non-cooperative, their personal presence was ordered. The petitioner, who was directed to be present on 26.2.2014, did not enter personal appearance. His personal presence was enforced through non-bailable warrants on 4.3.2014.- During the course of their personal presence in Court, the petitioner and the other contemnors were afforded an opportunity of oral hearing. The petitioner repeatedly· addressed this Court on 4.3.2014. Only thereafter, the impugned order dated 4.3.2014 was passed. In view of the above facts it is not possible for us to accept, that the impugned order was passed without following the rules of natural justice or without affording the petitioner an opportunity of hearing. (For details, refer to paragraph nos. 78 to 96). VIII. The law laid down by this Court in Jaswant Singh v. Virender Singh & Ors., 1995 Supp. (1) SCC 384, has been found to be fully applicable to the facts of this case, particularly the mannerism and demeanour exhibited by the petitioner and some of the learned counsel. Our recusal from the case sought on the ground cif bias, has been found to be devoid of any merit. Each and every insinuation levelled by the petitioner and his learned Senior Counsel, during the course of hearing, has been considered and rejected on merits. (For details, refer to paragraph nos. 97 to 112). (2014] 12 S.C.R. IX. The defence raised by the petitioner, that the two companies had already substantially redeemed the OFCD's, has been examined under two different perspectives. Firstly, the above defence is unavailable to the two companies in law, after the same was rejected on 5.12.2012 by a three-Judge B Division Bench (in Civil Appeal no. 8643 of 2012 and Writ Petition (Civil) no. 527 of 2012). Secondly, the said defence has been examined from various factual perspectives and has been found to be untenable. Sole reliance on general ledger entries without any other authentication, has been held to be c insufficient proof of the refunds claimed to have been made by the two companies to the investors, specially because, such cash redemptions have not been affirmed in the certificate issued by the firm of Chartered Accountants, which had audited the accounts of the two companies. (For details, refer to 0 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. Antu lay v. R.S. Nayak, (1988) E 2 sec 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, F 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 G 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. SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] XII. Post Script 146. Even though our instant observations are being recorded as a post script, after we have concluded examining the merits of the controversy arising out of the criminal writ petition filed by the petitioner – Mr. Subrata Roy Sahara, the instant part of our judgment should be treated as a part and parcel of our decision, because it emerges out of years of our experience with the justice delivery system, and is prompted on account of the abuse of the judicial process, exposed while dealing with some Sahara Group related cases. The seriousness of the conclusions recorded herein, we hope, shall not be overlooked merely on account of the heading given to this part. 147. The number of similar litigants, as the parties in this group of cases, is on the increase. They derive their strength from abuse of the legal process. Counsel are available, if the litigant is willing to pay their fee. Their percentage is slightly higher at the lower levels of the judicial hierarchy, and almost non-existent at the level of the Supreme Court. One wonders, what is it, that a Judge should be made of, to deal with such litigants, who have nothing to !ose. What is the level of merit, grit and composure required, to stand up to the pressures of today's litigants? What is it, that is needed to bear the affront, scorn and ridicule hurled at officers presiding over Courts? Surely one would need superhumans to handle the emerging pressures on the judicial system. The resultant duress is grueling. One would hope for support for officeTS presiding over Courts, from the legal fraternity, as also, from the superior judiciary upto the highest level. Then and only then, will it be possible to maintain equilibrium, essential to deal with complicated disputations, which arise for determination all the time, irrespective of the level and the stature, of the Court concerned. And also, to deal with such litigants. 148. We have no doubt, that the two companies and the A present petitioner before this Court – Mr. Subrata Roy Sahara, are such litigants. They never subjected themselves to the authority and jurisdiction of the SEBI. They have continued with the same mannerism at all levels, right upto this Court. They have always adopted an accusing stance, before all the B adjudicatory authorities. Even against us. Exhaustive details in this behalf have been expressed by us, in the 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 C 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 D 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, 19.2.2013, 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, 26.2.2014, 4.3.2014, 7.3.2014, 12.3.2014, 13.3.2014, 26.3.2014, 27.3.2014, 3.4.2014, 9.4.2014, 16.4.2014, 17.4.2014 and 21.4.2014" A lot of these hearings consumed this Court's full working SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] day. Hearing of the main case, consumed one full part, of the entire summer vacation (of the Supreme Court) of the year 2012. For the various orders passed by us, including the order dated 31.8.2012 (running into 269 printed pages) and .the present order (running into 205 printed pages), substantial Judge hours were consumed. In this country, judicial orders are prepared, beyond Court hours, or on non-working days. It is apparent, that not a hundred, but hundreds of Judge hours, came to be spent in the instant single Sahara Group litigation, just at the hands of the Supreme Court. This abuse of the judicial process, needs to be remedied. We are, therefore of c the considered view, that the legislature needs to give a thought, to a very serious malady, which has made strong inroads into the Indian judicial system. 150. The Indian judicial system is grossly afflicted, with frivolous litigation. Ways and means need to be evolved, to deter litigants from their compulsive obsession, towards senseless and ill-considered claims. One needs to keep in mind, that in the process of litigation, there is an innocent sufferer on the other side, of every irresponsible and senseless claim. He suffers long drawn anxious periods of nervousness and restlessness, whilst the litigation is pending, without any fault on his part. He pays for the litigation, from out of his savings (or out of his borrowings), worrying that the other side may trick him into defeat, for no fault of his. He spends invaluable time briefing counsel and preparing them for his claim. Time which he should have spent at work, or with his family, is lost, for no fault of his. Should a litigant not be compensated for, what he has lost, for no fault? The suggestion to the legislature is, that a litigant who has succeeded, must be compensated by the . one, who has lost. The suggestion to the legislature is to formulate a mechanism, that anyone who initiates and continues a litigation senselessly, pays for the same. It is suggested that the legislature should consider the introduction of a "Code of Compulsory .Costs". (2014] 12 S.C.R. 151. We should not 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 B 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. c 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 D 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 perception, his cause is fair and E legitimate. The effort is only to introduce..consequences, if the litigant's perception was incorrect, and if his {;{a use is found to be, not fair and legitimate, he must pay for the,same. In ttie present setting of the adjudicatory process, a litigant, no matter how irresponsible he is, suffers no consequences. Every · F litigant, therefore likes to take a chance, even when counsel's advice is otherwise. 153. Does the concerned litigant realize, that the litigant on the other side has had to defend himself, from Court to G Court, and has had to incur expenses towards such defence? And there are some litigants who continue to pursue senseless and ill-considered claims, to somehow or the other, defeat the process of law. The present case: is a classic illustration of what we wish to express. Herein the regulating authority has had to suffer litigation from Court to Court, incurring public SUBRATA ROY SAHARA v. UNION OF INDIA [JAGDISH SINGH KHEHAR, J.] 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 paey which succeeds, unnecessary litigation will be substantially reduced. At the end of the day, Court tjme lost is a direct loss to the nation. It is about time, that tl'\e legislature should evolve ways and means to curtail this unmindful activity. We are sure, that an eventual determination, one way or the other, would be in the be.st interest of this country, as also, its countrymen. Bibhuti Bhushan Bose Writ Petition dismissed.