S.3 of the judges Protection Act which provides for absolute immunity to judges from civil and criminal action even when they willfully deny justice is unconstitutional, pleads Sabina Lakdawala. Read her Petition
IN THE HIGH COURT OF JUDICATURE IN BOMBAY ORDINARY
ORIGINAL CIVL JURISDICTION
WRIT PETITION NO. ……………… OF 2022.
Sabina Lakdawala …Petitioners
Versus
Komal Singh Rajput & Ors. …Respondents
I N D E X
Sr.
No.
Particulars Page No.
1. Proforma I-III
2. Synopsis A-C
3. Memorandum of Petition
4. Vakalatnama
5. Memorandum of Registered Address
6. List of documents
7. EXHIBIT- “A”:-
A true Copy of Marriage Certificate
8. EXHIBIT- “B”
Copy of the order dated 28.7.2021 of the High Court of Bombay exploring the possibility of mediation
9. EXHIBIT- “C”
Copy of the order dated 6.8.2021 of the High Court of Bombay exploring the possibility of mediation
10. EXHIBIT- “D”
Copy of the order dated 31.8.2021 of the High Court of Bombay directing the Petitioner to approach the competent authority for police protection
11. EXHIBIT- “E”
Copy of the order dated 12.10.2021 of the High Court of Bombay finding that the medical certificate described the injury
suffered by the Petitioner’s daughter-in-law as simple injury and granting the Petitioner
protection from arrest until further orders
12. EXHIBIT -“F”:-
Copy of the order dated 22.10.2021 of the High Court relegating the Petitioner to the MM Court for relief under the DV Act.
13. EXHIBIT -“G1”:-
Copy of the application filed by the Petitioner under Sections 12, 17 to 23 of the D.V Act
14. EXHIBIT -“G2”:-
Copy of interlocutory application filed under Section 23 of the DV Act before the Magistrate
15. EXHIBIT -“H”:-
Copy of the roznama of the Magistrate dated 26.10.2021 adjourning the application for ex parte interim relief for orders to 30.10.2021
16. EXHIBIT -“I”:-
Copy of the roznama of the Magistrate dated 30.10.2021 adjourning the I.A for interim relief (for orders) to 8.11.2021 because the magistrate was on leave
17. EXHIBIT -“J”:-
Copy of the order dated 3.11.2021 of the vacation bench of the Hon’ble High Court directing the Ld. Magistrate to pass orders on or before 10.11.2021
18. EXHIBIT -“K”:-
Copy of order dated 10.11.2021 of the Ld. Magistrate rejecting ex parte relief and ordering notice to the in-laws of the Petitioner
19. EXHIBIT – “L1”
A copy of Roznama dated 23.11.2021, wherein the Respondent Advocate file an undertaking to file Vaklatnama and Reply
20. EXHIBIT -“L2”:-
Copy of the roznama dated 24.11.2021
whereby the case was adjourned for hearing to 27.11.2021 as the Magistrate was on leave
21. EXHIBIT -“L3”:-
Copy of roznama of the Magistrate in-charge dated 27.11.2021 adjourning the case to 3.12.2021 because the Magistrate was on deputation for training
22. EXHIBIT -“M”:-
Copy of the roznama dated 3.12.2021 where the Magistrate has recorded that all of the Petitioner’s in-laws have filed their vakalatnama, were represented through their lawyer, had tendered their counter affidavit, and on the instance on the Petitioner’s lawyer he was heard on interim reliefs and the case was adjourned for orders
to 6.12.2021
23. EXHIBIT -“N”:-
Copy of the counter affidavit of Mrs. Noori Lakdawala, the Petitioner’s step daughter-in- law in the D.V case no. 191/2021
24. EXHIBIT -“O”:-
A true copy of order dated 6.12.2021 of the Ld. Magistrate refusing to pass any order on the merits of the case after having heard the Petitioner’s counsel in full, while the Petitioner’s in-laws’ counsel though present
failed to argue his case
25. EXHIBIT – “P”
A copy of roznama of the Magistrate dated 10.12.2021, wherein it has been recorded that the Petitioner filed an application for advancement of hearing, accordingly adjourning the case to 14.12.2021 for
hearing on “further interim relief”
26. EXHIBIT -“Q”:-
A true Copy of order dated 14.12.2021 of the Hon’ble High Court directing the Magistrate to take up the case of the Petitioner taking into consideration the urgency of the matter
27. EXHIBIT – “R”
The Petitioner’s rejoinder dated 14.12.2021 in D.V case no. 191/2021
28. EXHIBIT -“S1”:-
Copy of the order dated 14.12.2021 of the Magistrate rejecting the plea of the Petitioner for passing orders on the application for ad interim relief since the Petitioner was heard in full on 26.10.2021 and 3.12.2021 after affording as a matter of concession an opportunity to the Respondent lawyer who had failed to argue, and not to delay the
orders on the emergent relief.
29. EXHIBIT -“S2”:-
Copy of the roznama before the Magistrate Court dated 14.12.2021
30. EXHIBIT -“T”:-
A true copy of order dated 22.12.2021 of the Ld. Magistrate declining to pass an order on the question of ad interim relief despite having heard the Petitioner’s counsel three times on 26.10.2021, 3.12.2021 and 22.12.2021, despite the pleadings being complete and the lawyers for the in-laws being present on the last two dates, declaring that he has lost his jurisdiction.
31. EXHIBIT -“U”:-
Copy of the complaint/representation dated 30.12.2021 preferred by the Petitioner to the to the various constitutional authorities seeking the brining into existence of a mechanism for redressal of arising out of wilful denial of justice due to extraneous considerations
32. Affidavit in Support
33. Advocate Certificate
NEDUMPARA & NEDUMPARA
Advocates for the Petitioners 9820535428/9447165650
IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION WRIT PETITION NO. OF 2022
Sabina Lakdawala …Petitioners
Versus
Komal Singh Rajput & Ors. …Respondents
SYNOPSIS
CHALLENGE IN BRIEF:
The Judges (Protection) Act of 1985 confers absolute immunity to the judges even when they act maliciously and wilfully deny justice on extraneous and corrupt considerations. The Petitioner, Mrs. Sabina Lakdawala, wife of late Yusuf M. Lakdawala, builder, was wilfully denied justice by the 12th Metropolitan Magistrate, Shri Komalsing Rajput, Bandra, Mumbai. The Petitioner cannot institute a suit for damages or any criminal proceedings because of the absolute immunity in terms of the said Act. The Petitioner challenges the validity of the Act, seeks it to be declared unconstitutional or at least to read down as immunity limited to where the judge does not act maliciously and wilfully denies justice.
Dates & Events
Sr. No
. Date Events Ex. Pg.
No.
1. 25.12.2007 The Petitioner married Mr. Yusuf Lakdawala on 25.12.2007. Mr. Yusuf Lakdawala was a film
financer and builder and died
intestate leaving properties more
than 1000 crores.
2. The Petitioner’s husband was diagnosed with cancer in 2009 and despite the best treatment,
he succumbed to it on _ _
3. 03.07.2021 The Petitioner came to know from reliable sources of the design to alienate the properties of Mr. Yusuf Lakdawala by forging documents. Accordingly, the Petitioner instituted a suit in the City Civil Court for certain declaratory and other remedies. On 3.7.2021 the notice was served on Petitioner’s in-laws, and on that night the Petitioner was attacked.
4. 25.10.2021 On 25.10.2021 the petitioner filed an application under section
12 of the DV Act and sought ex
parte orders against her in laws.
5. 26.10.2021 The Petitioner’s lawyer argued the matter exhaustively and the case was adjourned for orders to
30.10.2021.
6. 30.10.2021 On 30.10.2021, the Petitioner was told that the Respondent has left for Diwali holidays without
passing any orders.
7. 10.11.2021 On 10.11.2021, the Respondent passed an order rejecting the Petitioner’s application for ex parte relief and issued notice to the in-laws as to “why interim relief prayed for shall not be granted against them” and adjourned the case for hearing my in-laws on 15.11.2021.
15.11.2021 On 15.11.2021, the case was adjourned to 23.11.2021 and then to 24.11.2021. After series of adjournment the case was
finally listed on 3.12.2021
8 3.12.2021 On 3.12.2021, namely, 5 months after the Petitioner was rendered homeless, her in-laws, all of them namely, Feroz Lakdawala, Noori Lakdawala and others , appeared through their lawyer, filed vakalatnama and filed their
counter affidavit.
9 14.12.2021 The High Court by its order dated 14.12.2021 directed the Respondent to hear plea for advancement sympathetically, considering that she has been
thrown out of home.
22.12.2021 The Respondent by his order dated 22.12.2021 rejected Petitioner’s application for interim relief after issuing notice to her in-laws and after them having
appeared.
Hence this petition for disciplinary
action and dereliction of duty
Points to be urged:
At the time of hearing
A) Acts to be relied upon:
1. Constitution of India;
2. Criminal Procedure Code 1973
3. The Judges (Protection) Act 1985
4. Any other Acts.
Authorities to be cited: All at the time of arguments
Date : .01.2022
Place: Mumbai
NEDUMPARA & NEDUMPARA
TO,
THE HONOURABLE THE CHIEF JUSTICE AND THE OTHER HONOURABLE PUSINE
JUDGES OF THIS HONOURABLE COURT
HUMBLE PETITION OF THE PETTITIONER ABOVENAMED
MOST RESPECTFULLY SHEWETH:
1. The Petitioner is the wife of late Mr. Yusuf Lakdawala who died on 9.9.2021 while in judicial custody for offences allegedly committed under the Prevention of Money Laundering Act. He was a film financer and builder, and died intestate leaving properties more than 1000 crores. The Petitioner married Mr. Yusuf Lakdawala on 25.12.2007. From his first marriage he has a son, two daughters and eight grandchildren, some of them major. The Petitioner’s husband was diagnosed with cancer in 2009 and despite the best treatment, he succumbed to it. A true Copy of Marriage Certificate is annexed and marked as Exhibit A.
2. That, there is an age difference of more than 25 years between the Petitioner and Mr. Yusuf Lakdawala and Petitioner’s marriage to him was not to the liking of his children and grandchildren. Till his arrest in 2019 by the economic offences wing for alleged land grabbing, he was in complete control of his business empire and the
Petitioner too had a role as his wife in the affairs of his family and business. His long incarceration in jail resulted in the straining of the relationship between the Petitioner and in-laws and the Petitioner had to face repeated physical and verbal attack at their hands. The Petitioner came to know from reliable sources of the design to alienate the properties of Mr. Yusuf Lakdawala by forging documents. Accordingly, the Petitioner instituted a suit in the City Civil Court for certain declaratory and other remedies. On 3.7.2021 the notice was served on my in-laws, and on that night the Petitioner was attacked.
3. The Petitioner avers that her in-laws and her husband’s extended family are influential and they were able to get her arrested during the wee hours of 4.7.2021. The petitioner’s step daughter-in-law while attacking suffered a minor injury to her eyebrow. The police has no jurisdiction to register an FIR for minor injuries, ie. offence under Section 323 of the IPC. They, therefore, maliciously implicated the petitioner for causing grievous hurt under Section 326. Though the Petitioner was released, the threat of arrest remained over her head like a Damocles sword. The Petitioner was,
therefore, constrained to file a writ petition before the Bombay High Court for quashing of the FIR. The bench of Justice Varale, noble and concerned as their Lordships are, said it was only appropriate to resolve the family dispute by mediation. The Petitioner’s in-laws were not ready for that. They misrepresented before the Court that Petitioner’s late husband had said that he would resolve it on being released on bail. The High Court took yet another attempt at mediation but did not succeed. However, this process meant almost 3 months being lost. A copy of the orders dated 28.7.2021 and 6.8.2021 of the Hon’ble High Court of Bombay is produced as Exhibit B and C, respectively.
4. The petitioner was arrested from home at around midnight, in her night gown with nothing in hand but her phone. All her personal belongings and valuables were at petitioner’s home. The in-laws ransacked the Petitioner’s room and took away all her personal belongings, including a wedding ring worth over one crore rupees, reducing her to a state of vagrancy and destitution. The Petitioner could not have entered her home for she feared that she would be attacked again or even killed. On the orders of the High Court the
Petitioner sought police protection. A copy of the order dated 31.8.2021 of the High Court of Bombay directing the Petitioner to approach the competent authority for police protection is produced as Exhibit D.
5. The commissioner declined it by a non-speaking order.
The High Court directed the Commissioner to hear the Petitioner’s grievance and pass a speaking order. The Commissioner heard and passed a speaking order saying that protection cannot be granted because of the false FIR against the Petitioner. The Petitioner challenged the Commissioner’s order before the High Court and the High Court on 12.10.2021, namely after four months, found that the injury allegedly caused by the petitioner on her daughter-in-law was a minor one as per the police records and that the petitioner shall not be arrested. A copy of the order dated 12.10.2021 of the High Court of Bombay is produced as Exhibit E. By further order dated 22.10.2021 this Hon’ble Court was pleased to relegate the Petitioner for the enforcement of her rights and remedies under the Sections 17 to 23 of the D.V Act to the Metropolitan Magistrate. A copy of the order dated 22.10.2021 is produced as Exhibit F.
6. The Parliament enacted the Protection of Women from Domestic Violence Act, 2005 (D.V Act), to provide effective protection to the rights of women who are victims of violence of any kind occurring within the family. Sections 17 of the Act confers rights on every woman in a domestic relationship to reside in the shared household whether she has a title or beneficial interest in the same or not. The Section also provides that a woman shall not be evicted or excluded from the shared house or any part of it except in accordance with the procedure established by law. Sections 18, 19 and 21 of the Act confer on the Magistrate, sweeping powers to protect the rights of women. Section 23 of the Act empowers the Magistrate to pass ex parte orders.
7. With the protection from arrest granted by the Bombay High Court, the Petitioner could move an application before the Respondent, Shri Komalsing Rajput, the 12th Metropolitan Magistrate Court, Bandra, under the Domestic Violence Act. Accordingly, the Petitioner filed an application on 25.10.2021 and sought ex parte orders. A copy of the application filed by the Petitioner under Sections 12,17 to 20, 22 and 23 of the D.V Act is produced as Exhibit G1. The Respondent kept the matter for
hearing on 26.10.2021. The Petitioner’s lawyer argued the matter exhaustively on the question of ex parte interim relief and the case was adjourned for orders to 30.10.2021. A true copy of interim application filed under Section 12 to 23 and in particular section 18 of the D.V Act is annexed and marked as Exhibit G2.
8. When the Petitioner’s lawyer moved the application, the Respondent was receptive and was courteous to Petitioner’s lawyer. The Petitioner was relieved, because she felt that now, after a gap of more than 4 months, she would finally be able to enter her home and her state of vagrancy would finally come to an end. But things were not destined to be so. The Petitioner’s husband being in the construction and film industry has wide connections and the Petitioner has heard from him, from the horses own mouth, that sometimes he has been able to influence government officials and even judges. The Petitioner came to know from reliable sources that the Respondent will not grant any order and that he will delay and derail the application, and that the strategy of her in-laws is to financially and emotionally wreck the petitioner by managing to delay the judicial process. A copy of the roznama dated
26.10.2021 adjourning the application for ex parte interim relief under the D.V Act to 30.10.2021 is produced as Exhibit H.
9. On 30.10.2021, the Petitioner was told that the Respondent has left for Diwali holidays without passing any orders. A copy of the roznama dated 30.10.2021 adjourning the case without pronouncing orders is produced as Exhibit I.
10. The Petitioner’s lawyer moved the Magistrate in charge, but to no avail. On 1.11.2021 the matter was mentioned before the bench of Justice Kathawalla. The High Court heard the petitioner on 3.11.2021 and directed the Respondent to pass an order “on or before 10.11.2021”. A copy of the order dated 3.11.2021 of the vacation bench of the Hon’ble High Court is produced as Exhibit J.
11. The Petitioner produced the order of the High Court before the Respondent on 8.11.2021 and sought early pronouncement of orders. On 10.11.2021, the Respondent passed an order rejecting the Petitioner’s application for ex parte relief and issued notice to the in-laws as to “why interim relief prayed for shall not be
granted against them” and adjourned the case for hearing my in-laws on 15.11.2021. A true copy of order dated 10.11.2021 is annexed and marked as Exhibit K.
12. On 15.11.2021, the case was adjourned to 23.11.2021. On 23.11.2021, Petitioner’s in-laws appeared through their lawyer and sought time to file a reply and the case was adjourned to 24.11.2021. On 24.11.2021, the Respondent was on leave. A copy of the roznama dated 23.11.2021 and 24.11.2021 is produced as Exhibit L1 & L2. On 24.11.2021 the case was adjourned to 27.11.2021.
13. On 27.11.2021, the Petitioner was told that the Respondent has gone for training and will be available only after a week and to, therefore, move the alternative judge in-charge for emergent hearing, bringing to the notice of the Court my state of destitution. The Court adjourned the case to 3.12.2021. A copy of Roznama dated 27.11.2021 is annexed and marked as Exhibit L3.
14. On 3.12.2021, namely, 5 months after the Petitioner was rendered homeless, her in-laws, all of
them namely, Feroz Lakdawala, Noori Laldawala and the other siblings, appeared through their lawyer, filed vakalatnama and filed their counter affidavit. The Respondent by his order dated 10.11.2021, by which ex parte relief was denied to the petitioner, had ordered notice to the opposite party, namely the in-laws. On 3.12.2021, all of them were present through their lawyer. They had filed their counter affidavit. The Petitioner’s lawyer told the court that he is not seeking time to file a rejoinder, and therefore the case be heard forthwith. But Petitioner’s in-laws’ lawyer sought adjournment. The Petitioner’s lawyer objected saying what for.
15. The only person who would seek an adjournment is the Petitioner, because she has a right to file a rejoinder to the counter affidavit filed by her in-laws. The Petitioner’s lawyer insisted that if her in-laws’ lawyer is not willing to argue, which is their duty, the Court should hear Petitioner and decide the issue. The lawyer for the Petitioner’s in-laws did not offer any reason whatsoever for seeking an adjournment. He did not utter a word on the merits of the case. What was going on, which was evident not only to the Petitioner but others who were present in court were the gestures and
eye contact between in-laws’ lawyer and the Respondent.
16. The Petitioner begs to extract the roznama of the Court on 3.12.2021 for ready reference:
“Called. Applicant and her advocate present. Respondent absent, their advocate present. Exh-8- Vakalatnama of respondent Nos 1,2,4,5 and 6. – Seen. Exh. – 9 – Say of respondent no. 2. – R and R. Exh. – 10- Copy of High Court order. On insistence of applicant argument heard on interim reliefs. Adj. for order.”
A true copy of roznama dated 3.12.2021 is annexed and marked as Exhibit M. A copy of the counter affidavit of Mrs. Noori Lakdawala, the Petitioner’s step daughter-in-law in the D.V case no. 191/2021 is produced as Exhibit N.
17. The Petitioner’s lawyer argued the case exhaustively, pointing out that the purpose of the suit filed by her is different from the proceedings under the
D.V Act. The Civil suit is for the determination of the respective rights and obligations in dispute between the
Petitioner and her in-laws. The D.V Act is for the protection of women from destitution and vagrancy by ensuring a place to reside, protection from domestic violence, emergent monetary relief and the like. In the Civil suit, petitioner’s in-laws have not even filed a written statement or counter affidavit and the suit is not currently vigorously prosecuted in view of the reliefs sought before the Respondent, and that there is no question of any estoppel or bar.
18. As aforesaid, the Petitioner could learn from reliable sources that Respondent is under the influence of the Petitioner’s in-laws, to put it mildly. The Petitioner is unable to produce any tangible, verifiable evidence because the source of information is discreet. The Petitioner bonafide believe that there is absolutely no other reason for the extremely strange manner in which the Respondent has chosen to conduct the judicial proceeding as far as the Petitioner is concerned. The proof of the Petitioner’s allegation that the respondent has been won over are the orders which he has passed, which are manifestly and shockingly improper and irrational. As the Petitioner narrates what has further
transpired, your Hon’ble selves will be convinced of the
veracity of the Petitioner’s allegation.
19. On 3.12.2021, the Petitioner’s lawyer argued the case in its entirety by making a specific reference to the counter affidavit which was severed on him in open court that day. The Petitioner’s lawyer told the court that the counter affidavit does not require any reply and is nothing but falsehood on oath, for which the Petitioner will be taking further independent proceedings as contemplated under Section 340 of the CRPC r/w Section 195 thereof. The in-laws’ lawyer did not utter a word in reply. It is not for the Petitioner to force the in-laws’ lawyer to argue if he has chosen not to. The only order the Respondent could have passed was a final order on the merits in respect of the interim application for interim relief which the petitioner had preferred. However, the Respondent, dismissed the Petitioner’s application for interim relief, without even uttering a word on the merits of the case, namely, on Petitioner’s entitlement to reside in the household which she shared with her husband/in-laws, the protection to which she is entitled against domestic violence, about her rights for monetary relief.
20. The order of Respondent dated 6.12.2021 is a wilful denial of justice. He is undoubtedly influenced by extraneous and corrupt considerations. A copy of the order dated 6.12.2021 is produced as Exhibit O.
21. On 10.12.2021, the Petitioner lawyer filed an Application for advancement of hearing the case from 21.01.2022. A copy of roznama dated 10.12.2021 is annexed and marked as Exhibit P.
22. The fact that the Respondent was influenced, acted on extraneous and corrupt considerations is manifest from the very order itself and nothing more is required except his past conduct and the further orders which he has passed which the Petitioner will be referring to infra.
23. The Respondent had adjourned the case for final hearing to 22.1.2022.
24. The Petitioner’s in-laws had filed a counter affidavit and petitioner’s application was ripe for final hearing as well. Faced with the brazen conduct of the Respondent, the Petitioner approached the High Court seeking a direction to the Respondent to hear the Petitioner’s
case on merits and pass an order. The High Court by its order dated 14.12.2021 directed the Respondent to hear plea for advancement sympathetically, considering that she has been thrown out of home, so too the purpose for which the D.V Act has been enacted. A copy of the said order of this Hon’ble Court dated 14.12.2021 is produced as Exhibit Q.
25. A copy of the rejoinder of the Petitioner to the counter affidavit of her in-laws in D.V case no. 191/2021 is produced as Exhibit R.
26. The Petitioner’s counsel, producing the High Court order sought hearing of final hearing of the case on its merits after giving prior notice to the lawyers for in- laws. The Petitioner’s counsel argued the case in extensio, once again. And once again, the opposite lawyer did not utter even a word in reply on the merits. All that happened was communication by way of eye contact and gestures between the Respondent and the lawyer for the Petitioner’s in-laws. A copy of order of the Magistrate dated 14.12.2021 is annexed and marked as Exhibit S1. A copy of the roznama before the Magistrate dated 14.12.2021 is produced as Exhibit S2.
27. The whole scene seemed orchestrated. The Respondent No. 1 did not pass an order on the merits of the case, on my entitlement, rights as vested in Petitioner in terms of Sections 17 to 23 of the DV Act, holding that the Respondent had ceased to have jurisdiction so far as the application for interim relief is concerned. The Respondent passed no orders, either as an interim order or as final order. There cannot be a greater travesty of justice, contempt of the majesty of law and the authority of the High Court, nay, a greater slap on the civilized a society than the manner in which the Respondent has chosen to conduct himself in the instant case.
28. The Petitioner was relegated to the Respondent by the High Court by its order dated 12.10.2021. The High Court by its order dated 3.11.2021 and 14.12.2021 directed the Respondent to pass orders on Petitioner’s case merits. However, till date an order on the merits of Petitioner’s case, her entitlement, her rights in terms of Sections 17 to 23 for the injury which she has suffered has not been passed, nay, not a word, not a whisper on the merits of case has been made.
29. The Respondent by his order dated 22.12.2021 rejected Petitioner’s application for interim relief after issuing notice to my in-laws and after them having appeared, without requiring their lawyer to address him, for which alone he had issued the notice to my in- laws by his order dated 10.11.2021, observing that he ceased to have jurisdiction, and that original order which he had passed issuing show cause notice to my in-laws has become final. Could there be a greater absurdity, nay, travesty of justice? A true copy of the order dated 22.12.2021 is annexed and marked as Exhibit T.
30. The Petitioner do not at all think that the mistake of the Respondent made is bonafide or that it is out of ignorance of the fundamental principles of law. But assuming it to be so, the Respondent is disqualified to continue as a Magistrate, for as a Magistrate he ought to know that there can be no res judicata or estoppel or finality unless an issue has been decided on its merits, which he did not, wilfully.
31. If persons like Mr. Komalsing Rajput are allowed to continue to act as District Magistrates administering the
provisions of the D.V Act then the very Act would be reduced to a worthless piece of paper. The Petitioner has been made to suffer great injustice despite being fortified by the services of a dedicated team of lawyers. The Petitioner shudders to think of a less fortunate one who does not have such support. The Petitioner is a widow, rendered homeless, dragged out of home at midnight, in her night gown, by the police on the false complaint of her in-laws and has been denied justice till date.
32. The instant case of the Petitioner calls for the judicial accountability of such magistrate who have failed to abide by the letter of law and thereby deprived the petitioner of her right to avail various remedies under the DV Act. The Petitioner accordingly preferred a complaint/representation to the various constitutional authorities and the Hon’ble Chief Justice seeking the bringing into existence of a mechanism for redressal of injustice and grievance arising out of wilful denial of justice due to extraneous, malicious and even corrupt considerations. A copy of the said representation made to the various constitutional authorities and the Hon’ble Chief Justice dated 30.12.2021 produced as Exhibit U.
33. Under the present system, the only remedy open to the person aggrieved is to seek correction to done to him/her by means of appeal/revision/proceedings under Articles 226 or 32. A litigant who is subjected to injustice at the hands of the Courts will get true justice only if the absolute immunity enjoyed now by the depositories of the sovereign judicial powers/trust are made liable for civil and criminal action like any other holder of public trust/office.
34. The fundamental principle of law enshrined in latin maxim Ubi Jus ibi remedium suggests “where there is right there is remedy” but in effect this maxim appears to be a paper fleeting hope for the good reason that despite being deprived by the Respondent, the Petitioner cannot initiate civil action against the Respondent for he has the protective shield by an Act of parliament. The Judges (Protection) Act 1985 prevents the civil courts so too the criminal courts from taking cognizance of any wrongful act which he may have committed while discharging his official or judicial duty. For the sake of clarity Section 3 of the Act is extracted herein below
3. Additional protection to Judges.—(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in sub-section (1) shall debar or affect in any manner the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal, or departmental proceedings or otherwise) against any person who is or was a Judge.
35. In effect section 3 of the Judges (Protection) Act 1985 has made redundant Section 197 of the Criminal Procedure Code 1970 because it negates the effect of all the laws favouring judicial accountability by declaring that no court shall have power to take cognizance of wrong doing while such judge or magistrate was
performing his official or judicial duty. Section 3(2) further empowers the Central Government or State Government or Supreme Court or the High Court to take action against a judge however this provision has no efficiency for the simon pure reason that it seeks to take away the cherished right of the citizens to seek accountability from the state and judiciary is no doubt an organ of the state.
36. Article 372 of the constitution of India in express terms has adopted the common law which was prevailing at the time when the Constitution came into existence. The common law is the law in prevalence. Not only in the US, England, but is the law of the common wealth of 54 odd countries. The principal source of common law is Roman law, other sources being statute, precedent and customs. The doctrine of res judicata is the foundation on which the roman law is built. The doctrine of res judicata mandates that decisions of a court of competent jurisdiction, arrived at observing the principles of natural justice, shall be absolutely binding between the parties, no matter howsoever erroneous it could be. The justification was that otherwise there would be no finality of litigation and it is not conducive
that parties be allowed to re-litigate issues which are concluded. The judges who conduct themselves in a manner unbecoming of their office and pass unjust judgements were visited with serious consequences. They were punished.
37. In England too, judges who took bribes or acted unjustly were not let off easily. There are instances where judges were even given capital punishment and sentenced to imprisonment and fine, and not merely impeached. Even the great Sir Francis Bacon was impeached for bribery, imposed a penalty of 400 pounds and sent to prison.
38. Under the Habeas Corpus Act, 1670, even the Lord Chancellor was liable to a penalty of 500 pounds where he had unjustly denied a writ of habeas corpus. In England, a penalty which a judge would incur under the Habeas Corpus Act, known as ‘praemunire’, even the King has no jurisdiction to waive because the King cannot pardon a debt due to the subjects.
39. In England, no judge ever enjoyed absolute immunity, and that was the situation in India prior to
the enactment of the enactment of the Judges (Protection) Act of 1985. During the British era, the Judicial Officers Protection Act, 1850, was enacted with a view to afford protection to judges while acting in a judicial capacity. The manifest purpose being to ensure an environment where judges could act judiciously, fearlessly, impartially and independently. The protection which the said Act provided was not absolute, but was confined to where they act bona fide.
40. The expression acting bonafide has received innumerable judicial expositions, and all said expositions have one thing in common, namely, not to act recklessly, nay, carelessly, but to conduct oneself responsibly, in consonance with the gravity of the function a judge discharges.
41. In the case at hand, the Respondent, Komalsing Rajput, conducted himself wholly unbecoming of a judge. Since the Court proceedings are not recorded, the only manner in which his conduct could be ascertained is to hold an enquiry and take an oral evidence from all those who were present in Court. The Petitioner, her lawyers, those who happened to be in
the Court by chance or otherwise. However, to maintain the instant petition, the questionable conduct of Shri Komalsing Rajput need not be gone into, for that could only be established by an enquiry an independent authority, for the constitution of which alone the instant petition is filed.
42. Fortunately, the misconduct of Shri Komalsing Rajput could be established from the various orders which he has passed and the roznamas which have already been produced supra. The records of the said roznamas are required to be protected to avoid even the remotest possibility of it being tampered with. As stated above, the Petitioner moved an application under the
D.V Act on 23.10.2021. The Petitioner’s lawyer mentioned the matter on 25.10.2021 for emergent ex parte orders. The Respondent Magistrate kept the matter on 26.10.2021, heard the Petitioner and adjourned the case for orders to 30.10.2021. Till then his conduct was proper.
43. However, on 30.10.2021, he went on leave for Diwali holidays without pronouncing orders. The Petitioner was told by very reliable sources that the
Magistrate will not pass any orders and would derail and delay, for he has been won over by her in-laws. The strategy of her in-laws, the Petitioner was told, is to completely frustrate and break her by successfully dragging on the matter by influencing those in power. It was in the light of such confidential information that the Petitioner moved the High Court during the vacation for emergent interim relief. The High Court by its order dated 3.11.2021 directed the Magistrate to pass orders on the Petitioner’s application for interim relief.
44. The Respondent Magistrate, offering clumsy reasons, declined rendering relief, observing that he needed to hear the Petitioner’s in-laws, the opposite parties. He accordingly issued notice on her in-laws. And finally, the in-laws appeared through their lawyer, filed a counter affidavit. To avoid further delay, the Petitioner’s lawyer even without asking for an opportunity to file a rejoinder, making it clear that he is doing so to avoid delay, argued the entire case. It was the duty of the lawyer for Petitioner’s in-laws to argue in reply, for he was unable to point any reason, whatsoever, for an adjournment. The lawyer for my in-
laws did not open his mouth except to feebly seek an adjournment without assigning any reason.
45. It was Respondent no.1, Komalsing Rajput, who assumed the role of the Respondent/their advocate, and wanted to adjourn the case. I had warned my counsel of the ploy of the opposite party to needlessly adjourn the case and deny justice to me. My counsel therefore, insisted that the matter to be heard and argued the case in full. The lawyer for the Petitioner’s in-laws, who was present and who had filed a counter affidavit in the main
D.V case itself, did not utter a word in reply.
46. The Respondent no.1, Komalsing Rajput was left with no other option than to pass an order, even a final order in my favour, for the lawyer for my in-laws did not utter even a word contradicting my lawyer’s arguments or in defence of his clients. Respondent no. 1, Komalsing Rajput, however, passed an order which is an affront to reason, declining relief to the Petitioner without assigning any reason, though the order runs into 4 pages. The Respondent Magistrate created an imaginary story him being called upon by the Petitioner’s lawyer for an ex parte hearing. How could it be an ex parte
hearing when my in-law’s were present through their lawyer and all of them had entered appearance and filed a counter affidavit? Instead of passing an order, the Magistrate wanted to adjourn the case to March 2022. He agreed to prepone the same to 21st January 2022 at the insistence of the Petitioner’s counsel’s junior.
47. It was in the above circumstances that the Petitioner was constrained to approach the High Court. Since the Petitioner’s in-laws’ lawyer also conceded before the High Court that the pleadings are complete and, therefore, the application for interim relief could be finally heard and orders could be passed, the High Court by its order dated 14.12.2021 directed the Respondent Magistrate to hear the Petitioner’s case as early as possible.
48. The Petitioner approached the Magistrate on the same day, namely, 14.12.2021 for preponement of the case, nay, for hearing the lawyer for my in-laws who had failed to argue the case when it was his duty to do so, as a matter of concession, and pass final orders. The Petitioner’s counsel once again argued his case, drew the Magistrate’s attention to the counter
affidavit of the Petitioner’s in-laws, the Petitioner’s own rejoinder and insisted that the Magistrate afford a further opportunity to the Petitioner’s in-laws’ lawyer to argue his case then and there, as a matter of concession, though the lawyer of the Petitioner’s in- laws had chosen not to argue his clients’ case, though present in Court on 3.12.2021 when the application for interim relief was heard after notice. All this is evident from the roznama of the Respondent no.1, Magistrate, dated 14.12.2021 (Exhibit S2).
49. The Petitioner’s plea before the Magistrate was categorical. The Petitioner’s lawyer had thrice argued the application for ad interim protection, ex parte on 26.10.2021 and inter partes (namely, after her in-law’s had entered appearance through their lawyer was present in Court, though he did not open his mouth for reasons difficult to be fathomed) on 3.12.2021, and again on 22.12.2021 when also, the lawyer for the in- laws was present and did not utter a word on the merits of the case, and therefore, the Respondent Magistrate ought to have passed an order on the merits of the case.
50. Strangely, the Magistrate, even on the third occasion, refused to pass an order on the merits of the case, offering as reason, the unthinkable, the
unintelligible, that he has lost his jurisdiction. For the Petitioner to establish her case of culpable and wilful denial of justice, no further proof or evidence is required to be produced except the orders which the Respondent no.1, Magistrate, has passed from the seat of justice.
51. The Respondent Magistrate could pass orders which are manifestly unjust and illegal because the Petitioner as a litigant, a consumer of justice, has no forum to enforce her remedies, namely, civil and criminal. The Petitioner would quantify the mental and physical agony, which are cannot be fully be measured in terms of money at Rs. 10 crore, because being denied justice she suffered in terms of business empire of her husband which is worth over 1000 crores and was left to fend for herself, homeless and at the mercy of others.
52. The Petitioner cannot institute a civil suit for compensation and damages which she would quantify at Rs. 10 crores against Respondent no. 1, Magistrate. The Petitioner shudders to think of instituting a criminal prosecution against the Respondent no. 1, for the Judges (Protection) Act, 1985, affords complete protection, both civil and criminal, even where the
Respondent has acted maliciously and wilfully denied justice.
53. The fact that Respondent no.1 Magistrate has acted maliciously and wilfully denied justice to the Petitioner is manifest and conclusive from his own orders. In the orders dated 10.11.2021, 6.12.2021 and 22.12.2021, nay, in none of his orders, has he mentioned a word about the merits of the case and why the Petitioner is not entitled to the rights and benefits under Sections 17 to 23 of the DV Act. The only inference that could be drawn in that he did so deliberately, particularly ignoring the urgency of the situation where the Petitioner, a widow, has knocked at the doors of the Court for the very right to residence.
54. Assuming for mere argument sake that he did so not maliciously, but out of ignorance of law and the failure to comprehend the gravity and urgency of the situation, that would mean that he is disqualified to hold the office of the Magistrate. The Petitioner begs to submit so because there can be no finality, estoppel or res judicata, unless, there has been an adjudication on the merits of the case. As a Magistrate, he ought to know the four fundamental principles which constitutes
cause of action estoppel, res judicata. The first being the decision of a cause of action or issue on its merits, with notice and opportunity to be heard to both the parties to the controversy or lis. An interlocutory order, even if it is inter partes, namely after having heard both parties, and not merely hearing one party, namely, ex parte, constitutes no res judicata or estoppel or finality. Interlocutory orders could always be recalled, modified, varied or cancelled. The said concept is known by the latin maxim, sentencia inter locutoria revocari potest sive defenitiva non potest. This principle finds its codification in Order XXXIX Rule 4 of the CPC.
55. Interlocutory orders, though do not constitute res judicata or estoppel, to enable the interlocutory orders certain element of validity, apparently guided by practical considerations, the legislature in its wisdom inserted a proviso to Order XXXIX Rule 4 of the CPC. The proviso to Order XXXIX Rule 4 of the CPC is extracted for ready reference:
Provided further that where an order for injunction has been passed after giving to a party an opportunity of being heard, the order shall not be discharged, varied or set aside on the application of that party except where such discharge, variation or setting aside has been necessitated by a change in the circumstances, or unless
the Court is satisfied that the order has caused undue hardship to that party.
56. The proviso to Order XXXIX Rule 4 serves a dual purpose, namely, (a) to afford some sort of a finality to interlocutory orders which are otherwise which otherwise have no finality or authoritativeness, (b) to maintain that interlocutory orders, even one where both parties are heard, could be varied provided there is a change in circumstances or where the Court is satisfied that the interim order has caused undue hardship to the party against whom the interim order has been passed. The Petitioner’s counsel explained all this even quoting the latin maxim and referring to Order XXXIX Rule 4 of the CPC, and requested the Court to pass an order on the merits of the Petitioners application for interim relief. However, the Respondent Magistrate refused to pass any order on the merits of the case, that too without recording the submissions of the Petitioner’s counsel as aforesaid. The Petitioner is afraid to say that the said conduct on the part of the Respondent Magistrate leads to the irresistible conclusion that the denial of justice was not innocent.
57. The Petitioner is, therefore, entitled to seek a declaration that Respondent no. 1, Magistrate, is disqualified to continue in office. Such a declaration could be sought in a proceedings under Article 226 because this Court is exercising all the jurisdiction and powers which the King’s Bench in England had enjoyed at the time when the constitution came into existence. Similar powers are vested in the ordinary Civil Court. However, today, it exists only in theory and not in practice. The Petitioner, therefore, has been advised to prefer a writ petition rather than a civil suit.
58. Equality before law and equal protection of law is the core of our constitution. To vest in the judges and magistrates, absolute immunity even when they act maliciously and wilfully deny justice on corrupt and extraneous considerations, is against the very foundation of our constitutional ethos, equality. Section
3 of the Judges (Protection) Act, 1985, is therefore, liable to be declared as unconstitutional and void, or in the alternative the said Section is liable to be construed as one not affording absolute immunity, but one which is limited to where a judge or magistrate acts bonafide
and fairly, and not maliciously and where justice is denied wilfully.
59. The Petitioner has preferred a representation to the President of India, Vice President, the Prime Minister, Speaker of the Lok Sabha, the Chief Justice of India, Chief Justice of the High Court of Bombay and other constitutional authorities seeking justice. In terms of Article 235 of the Constitution of India, the High Court exercises supervisory jurisdiction over all courts and tribunals subordinate to it. Unlike the judges of the Supreme Court and High Courts, the Respondent Magistrate is subject to control and supervision of the High Court concerned and the rules of conduct. The Hon’ble Chief Justice of the High Court of Judicature at Bombay/the High Court is competent, the Petitioner would beg to submit, even dutybound to consider complaints against members of the subordinate judiciary, as in the instant case. For the enforcement of her rights and the reliefs sought for as infra, there is no other efficacious forum or mechanism than to invoke the jurisdiction of this Court under Article 226.
Hence the instant writ petition on the following and other:
GROUNDS
Grounds in support of the relief sought for are fairly elaborated in the statement of facts above and hence are not repeated. The Petitioners respectfully submit that the paragraphs 1 to 51 hereinabove may be read and treated as the ground in support of the instant Writ Petition.
60. The Petitioner craves leave of this Hon’ble Court to add, alter, amend and/or modify any of the aforesaid grounds as and when required.
61. No other petition in respect of the subject- matter of this Writ Petition has been filed either in the Hon’ble Supreme Court of India or in this Hon’ble High Court.
62. The Petitioner states that requisite Court-fee as per Rules has beenpaid.
63. The Petitioner states that she will rely upon a list of Documents, a listwhereof is annexed hereto.
64. The Petitioner states that no other efficacious alternate remedy isavailable to the Petitioner than to file the instant Writ Petition
65. The Petitioner states that the cause of action arose in Mumbai and hence this Hon’ble Court has jurisdiction to entertain this writ petition.
FOR THE REASONS STATED HEREINABOVE AND THOSE TO BE URGED AT THE TIME OF HEARING, IT IS MOST HUMBLY PRAYED THAT THIS HON’BLE COURT MAY BE PLEASED TO:
(a) declare that Section 3 of the Judges (Protection) Act, 1985, is unconstitutional and void in as much as it affords absolute protection for the judges and magistrates even when they act maliciously, on extraneous and corrupt considerations and willfully deny justice and resultantly deprives a victim of denial of justice any remedy, or in the alternative, declare that the said Section is liable to be construed as one not affording absolute immunity, but one which is limited to where a judge or
magistrate acts bonafide and fairly;
(b) issue a writ in the nature of mandamus or any other appropriate writ, order or direction, directing Respondent nos. 2 to 6 and/or such among them who are competent and vested of the jurisdiction to take such action, departmental and otherwise, as contemplated by law, to consider the Exhibit U complaint of the Petitioner and take such action as is warranted, keeping the Petitioner informed of the action so taken and/or affording her a due opportunity to partake in the enquiry/proceedings which the competent authority may deem fit and appropriate;
(c) to declare that the Respondent no.1 is disqualified to be a Metropolitan Magistrate by virtue of his improper conduct and acts of omission and commission;
(d) Any other just and equitable orders be passed as may be necessary in the fats and circumstance of the present case.
INTERIM ORDER BY IF ANY PRAYED FOR:
For the reasons stated hereinabove and those to be urged at the time of hearing, it is most humbly prayed that
this Hon’ble Court may further be pleased:
a. To suspend respondent No. 1 from his judicial duty until the enquiry led by Maharashtra Public Service Commission has been concluded.
b. to pass such further and other orders as the nature and circumstances of the case may require;
Advocates for the Petitioners Petitioners
VERIFICATION
I, Sabina Lakdawala, w/o Yusuf Lakdawala aged
…. years Indian Inhabitant having address at Flat 14,15 Sunflower Building Carter Rd, Bandra West, Mumbai, Maharashtra 400050 do hereby solemnly declare that what is stated in paragraphs 1 to 28 of the foregoing writ are true to my own knowledge and belief and what is stated in the remaining paragraphs 29 to 34 are based on information which I believe to be true and correct.
Solemnly declared at Mumbai ]
this ….. day of January, 2022 ]
Petitioner Before Me
NEDUMPARA & NEDUMPARA
Advocate for the Petitioner
Mob No. 9447165650/9820535428
Email id : nedumparaassociates@gmail.com marianedumpara@gmail.com
I am not a member of the Advocate’s Welfare fund hence the
stamp of Rs. 2 is not affixed
Advocate
IN THE HIGH COURT OF JUDICATURE IN BOMBAY ORDINARY ORIGINAL CIVL JURISDICTION WRIT PETITION NO. ……………… OF 2022.
1.
Mrs. Sabina Lakdawala
w/o late Mr. Yusuf M. Lakdawala Flat 14,15 Sunflower Building Carter Rd, Bandra West, Mumbai, Maharashtra 400050
Petitioner
Versus
1. Komal Singh Rajput
12th Metropolitan Magistrate, Bandra,
Mumbai 400050
2. State of Maharashtra Represented through Chief Secretary,
CS Office Main Building, Mantralaya, 6th Floor, Madame Cama Road
Mumbai 400032
3. Department of Law and Justice
Represented through Principal Secretary
Mantralaya
Mumbai 400032
4. Maharashtra Public Service Commission,
Represented by its Secretary,
5 1/2 , 7 and 8th Floor, Cooperage Telephone Exchange
Building
Maharshi Karve Marg, Cooperage, Mumbai – 400021.
5. The Hon’ble the Chief Justice,
High Court of Judicature at Bombay, Fort, Mumbai
400001
6. The Hon’ble High Court of Judicature
at Bombay,
Represented by its Registrar General Fort, Mumbai
400001
Respondents
To
The Prothonotary & Senior Master (O.S), High Court of Judicature at Bombay Mumbai – 400 032.
Sir,
I, Sabina Lakdawala, the Petitioner, do hereby
appoint Rohini M. Amin, Maria Nedumpara & Hemali Kurne
Advocates, Nedumpara & Nedumpara to act, appear and plead for me in the above matter.
IN WITNESS WHEREOF I have set and subscribed my hand to this writing at Mumbai.
Dated this __ day of January, 2022.
Accepted Petitioner No. 1 & 2
ROHINI M. AMIN, HEMALI KURNE MARIA NEDUMPARA
Advocates
NEDUMPARA & NEDUMPARA
IN THE HIGH COURT OF JUDICATURE IN BOMBAY ORDINARY ORIGINAL CIVL JURISDICTION WRIT PETITION NO. ……………… OF 2022.
Sabina Lakdawala …Petitioners
Versus
Komal Singh Rajput & Ors. …Respondents
BEFORE THE HONOURABLE HIGH COURT OF KERALA AT ERNAKULAM
October 28, 2024
