MATHEWS J. NEDUMPARA Advocate

Transcription

1 MATHEWS J. NEDUMPARA Advocate 304, Hari Chambers, 3 rd Floor, 58-64, S.B.S. Road, Fort, Mumbai Ph: (M), , , , mathewsjnedumpara@gmail.com To His Excellency Shri. Ram Nath Kovind, President of India, Rashtrapati Bhavan, Raisina Hill, New Delhi, Sub. : Memorandum/Representation under Article 72 of the Constitution of India by Justice C.S. Karnan seeking remission of his sentence of six months imposed on him by a sevenjudge bench of the Supreme Court, preferred through his counsels, Shri Mathews J.Nedumpara, B.K.Adhikari, A.C.Philip and C.J.Joveson Ref. : 1. The memorandum dated , under article 72 of the Constitution by Hon'ble Shri Justice C.S. Karnan, Judge, High Court of Judicature at Calcutta through his lawyers, which has since been forwarded by the President s secretary to the Ministry of Home, which has since been pending there. 2. Letter dated , by Justice Karnan, in furtherance of the memorandum above. MAY IT PLEASE YOUR EXCELLENCY, 1. Inscrutable are the ways of the almighty. It could be His will that Justice C.S. Karnan s be the first representation which Your Excellency receives as the President of India on the very first day of assumption of office. And that too, seeking the exercise of Your Excellency s extraordinary jurisdiction under Article 72 of the Constitution of India. 2. Nowhere in the world, a lawyer whose sacred duty is to protect the life, freedom and liberty of his client could have ever faced the kind of injustice, nay, pain, insult, humiliation and agony the Page 1 of 5

2 undersigned, so too his colleagues, had to face. So too, nowhere in the world, a person accused of an offence could have been sentenced without a charge, without a lawyer, without his presence secured, without a judgment, nay, a judgment being authored after the execution of the sentence. Justice Karnan s case could be the sole exception. The undersigned do not intent to be critical of anyone. The Contempt of Courts Act as of today has meant the freedom to dissent, a mirage. All, the undersigned can express and intent to express is the pain and agony, for which no words be adequate. 3. Justice C. S. Karnan was sentenced on , in gross violation of law. He sought to recall the order through the undersigned. He also instituted a substantive petition under Article 32 in challenge of the Contempt Of Courts Act, But the Registrar rejected it, assuming himself to be invested with the jurisdiction of the court. Since the judgment was yet to be authored, at least, not pronounced, not even uploaded in the website, he sought suspense of the sentence and enlargement on bail. The undersigned mentioned at least twice during the summer vacation, pleading that the application for bail be listed. Justice C. S. Karnan had indeed been arrested on The judgment was eventually uploaded on There were two separate judgments, though concurring. The judgment of the Hon'ble Mr. Justice Jasti Chelameswar and Hon'ble Mr. Justice Ranjan Gogoi, dated , which meant that Justice C. S. Karnan was sentenced without a judgment. Justice C. S. Karnan accordingly preferred an application for review, which the undersigned as his lawyer prepared in no loss of time. The undersigned, along with Shri. B. K. Adhikary, advocate, called on Justice C.S.Karnan on at the Presidency Jail at Kolkata. The review petition was duly executed by Justice C.S.Karnan. His signature was identified and attested by the jail authorities. The undersigned came to New Delhi on to present the same petition at the filing counter along Page 2 of 5

3 with Shri. A. C. Philip, advocate, and Shri. Sonu Beniwal, the registered clerk. The clerk at the registering counter accepted the review petition and assured to give the registration number, the very next morning. He was polite and courteous. He even assured that he will inform the registration number over the phone, since the undersigned insisted the inability to come to the counter on the very next morning. However, what transpired thereafter can have no parallels in judicial history. The clerk of the undersigned, Shri. Sonu Beniwal received a call from the registry on the next day around at 03:00 PM, requesting him to come to the filing counter which he promptly did. He was told that the review petition contains the signatures of more than one advocate and therefore it is returned. The clerk, at the best a matriculate, without a thought readily took back the review petition and brought the same to the undersigned. The undersigned along with Shri. A. C. Philip went and met, Mr. P.K. Bajaj, Addl. Registrar, who responded, you can do anything you want, but I am not going to accept it. You go to anybody, I am not bothered. 5. Accordingly the undersigned along with Shri. A. C. Philip went in search of the Registrar who was not in his office. He was busy in a meeting at the new lawyers launch at the ground floor. On the backdrop of the said meeting Shri. Kapil Kumar Mehta, Registrar, Supreme Court of India, courteous and polite requested the undersigned to meet him in his chambers on the next morning. Since the undersigned had to rush to Kerala, his native place, his associate, Shri.A.C.Philip met him. However, surprisingly, the registrar whom Shri.A.C. Philip met on was not the same registrar whom we had met on the previous day! He was no longer polite or receptive. In a stern tone, he told that he will not accept it. Shri. A. C. Philip, advocate tried his best to persuade him and also brought to his notice that the undersigned so too him have presented the review petition at the filing counter upon due authorization of Justice C.S.Karnan along with the Vakalathnama, so too the authorisation letter and also that, the registry is duty bound to take on record the Page 3 of 5

4 review petition which the counter clerk indeed did on 11/07/2017, register it and list it as per the rules. He further pointed out that if the review petition is defective in any manner, the registry is duty bound to notify the defects in writing to the lawyer who represented him, allowing him to cure the defects, if any, as per the Rules. Shri.A.C.Philip had carried with him the Supreme Court Rules. And he drew his attention to Order-XII, Rule- 1 & 5 and Order-VIII Rule 5 & 6- of the Supreme Court Rules,2013. However no amount of reason, argument or logic, the undersigned is afraid to say, could convince the registrar. Shri.A.C.Philip, the associate of the undersigned, determined as he was, took the stand that he will not return unless the registry registers even as defective and notify the objections. Finally the Ld. Registrar instructed a clerk to return it with an endorsement. Finally, to be reminded of the words of Horace that, parturient montes, nascetur ridiculus mus mountains will be in labour, and an absurd mouse will be born, the clerk wrote thus: In view of clause c of rule 7 of Order IV of SCR petition is not accepted..sd/-. (13/07/2017) Sr Court Asstt. 6. In other words, the review petition of Justice C.S.Karnan was returned, without it being registered, without it being scrutinised, it's objections if any not notified; it being confined to the grave, without it ever being listed for hearing and the grave injustice done to him ever rectified. 7. The right to institute a review petition is a right guaranteed under Article 137 of the constitution. It is unfathomable that it has happened at the hands of the Supreme Court of India, the sentinel qui vive of the life and liberty, the very guardian of the constitution. 8. To err is human; the Ld. Registrar, Shri. Kapil Kumar Mehta, so too the subordinate staff, in particular Mr. P.K. Bajaj, Addl. Registrar has erred gravely in the discharge of their function. However it could be corrected and it ought to be corrected, otherwise the very concept Page 4 of 5

5 of rule of law has no meaning. In that case, the very constitution of India really does not exist. 9. It is the unstinted faith of Justice C.S.Karnan that the representation at his behest by the undersigned as his lawyers will be placed by Your Excellency s Secretary for your kind perusal. Your Excellency being a lawyer for more than half a century, an AoR of the Supreme Court of India, will be shocked by the injustice done to Justice C.S.Karnan and more than that the flagrant violation of the constitutional provisions by none other than the institution of Supreme Court, the very protector of the constitution and the law. I part with the unstinted faith that Your Excellency will exercise the powers invested in your kind self under Article 72 of the Constitution of India and remit the sentence of Justice C.S.Karnan or will suspend the sentence pending the hearing of the application for recall/review of the orders of the Supreme Court of India dated and With utmost respect and regards, Yours sincerely, New Delhi (Mathews J.Nedumpara) (B.K.Adhikary) (A.C.Philip) & (C.J.Joveson) Advocates for the petitioner Page 5 of 5