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Deepak Khosla calls bench 1.5, held in contempt; TOI reports, Khosla threatens defamation suit

The Delhi high court took serious exception to its two-judge bench being called a “Dedh bench" (one-and-a-half bench) by advocate Deepak Khosla and ruled, last week, that he was in criminal contempt of the court.

Khosla has appealed to the Supreme Court and vowed to file a Rs 100 crore defamation suit against the Times of India (TOI) for allegedly incorrectly reporting that he was sentenced to a one-month jail term for contempt of court in an article headlined: "Angry HC sends lawyer to jail for 'misconduct'".

Khosla, who was not sent to jail, told Legally India that his sentence had been suspended pending his appeal in the Supreme Court.

In a 22 February judgment by justice Najmi Waziri and Ashutosh Kumar, the judges noted:

A Division Bench comprises of two Judges and for an advocate to call it a ‘Dedh Bench’ is to mock at the Court and to affront its dignity.

This expression clearly seeks to doubt the capacity of the Hon’ble Judges. It is a glaring instance of ‘judge bashing’.

Ex facie, it constitutes a deliberate attempt to embarrass the two Hon’ble Judges constituting the Division Bench and to denigrate the prestige of the Bench. To compound his offensive behaviour he subsequently laced his contempt with sarcasm before another Bench when seeking its recusal from the case by stating that it had passed ‘beautiful orders’.

This act has been sought to be justified by the respondent, by referral to his averments in CM No. 17483/2013. However, when an act of contempt is so evident, such as use of pejorative or insulting words such as ‘Dedh Bench’ against a Division Bench, no further proof is required for establishing the charge.”

Khosla commented:

When you describe the intensity of light you describe it in terms of Lumen, when you describe the power of a car you describe it in terms of horse power or torque or whatever, so when lawyers describe the force of an order we call it an [Full Bench] order, [Division Bench] order, [Single Bench] order, crime bench order, you know?

Now in this incident an order was passed by a DB of Sanjeev Khanna and RV Eshwar and a clarification is sought on two lines of that order that what did you mean by stay of all court proceedings? [Because a statutory provision] precludes the court from staying criminal proceedings, please clarify whether the order meant to apply to criminal proceedings as well. Sanjeev Khanna recuses because of a newly discovered [personal relationship resulting in conflict]. It then goes before a bench of Gambhir and Easwar.

I explained to them the gist of the matter in 3-4 minutes and said I’m so grateful that one of the judges part of the bench [originally hearing the matter] is part of this bench too. Therefore he may be pleased to clarify [the scope of the stay and whether it includes criminal proceedings]. I paused for a minute and waiting for the bech to clarify this and Gambhir looked at Easwar[…]” and justice Easwar didn’t clarify the scope of stay right then.

Khosla said that after many days and hours of arguments on this same point when justice Easwar, who had written the original stay order, still hadn’t clarified the position, Khosla in “a lighter vein” made the “Dedh Bench” comment.

According to an apology filed by Khosla with the Delhi high court, In a 11 October 2013 order the Delhi high court had recorded its remarks on Khosla’s conduct and that as soon as that order had been uploaded on the internet Khosla had “set out the details of the entire incident, as well as had recorded his remorse and apology”, and prayed to the court to correct the order.

Khosla told Legally India that the court had to date not taken his application for apology on the record. The application is dated 17 August 2015. However, in the 22 February order the Delhi high court bench noted:

“The conduct of the respondent/contemnor has been persistently incorrigible. The record shows that he contested the contempt notice on procedural grounds at every stage.  Neither has any sense of remorse  been exhibited by the contemnor regarding the contemptuous expression  nor was any proper apology offered despite more than a year having passed since the contempt was committed.

The contemnor's conduct has been consistently aggressive and combative towards the Courts. The court has found him guilty of having committed criminal contempt of court."

Khosla alleges bias

He commented:

"In one incident, without caring to verify whether I, in a lighter moment, used the phrase 'dedh bench' to refer to the Bench or whether I described the order of the DB as having the force of a 'dedh bee' order (as opposed to the force of an SB or DB order) to describe an order passed by a DB where one Judge who was part of the original DB that passed the order now, one year later, in 2013, seemed visibly uncertain as to what the precise meaning was as of what he had signed in 2012, and which request for correction is in writing on the court's record, still lying (shockingly!) undisposed off, is an exaggeration of the validity of use of the power of contempt.

By the incident, there has been no interference whatsoever in the due course of judicial proceedings, or in the administration of justice, or in the dignity or authority of the court. I have the fullest of confidence that the Hon'ble Supreme Court will fairly intervene to ensure that the power of contempt is not misused for frivolous incidents such as this, as in a given case, it can also bring the court itself into disrepute. In any case, Waziri J. was part of the "referring Bench" who could not have been part of the "adjudicating Bench", and hence, as its a well-settled principle that no man can be a Judge in his own cause, the order is a 'nullity' in law, void ab initio as if non est. Section 14(2) of the Act itself provides so. Its recall has already been sought on this point and the matter is due to be heard on Monday.”

He added: “[…] I have alleged bias on the part of [justice] Sanjeev Sachdeva in an appeal against one of his orders. To allege bias as one of the formal grounds of appeal against an order is not criminal contempt. There are ample Supreme Court judgements on this point. This again, is a misappreciation of the power of contempt, and I am sure the honourable Supreme Court will fairly intervene.

"In both cases, I was never heard on merits, but especially, on sentencing, which itself is a gross violation of the Code of Criminal Procedure, which even a rookie lawyer understands.

"As an aside, I am also going to petition the Chief Justice that just as the five fingers of a hand are not equal, similarly, matters ought to be marked to Judges who have requisite expertise in that particular branch of the law[…]”

Defamation

TOI, under the byline of Abhinav Garg, on Friday reported:

A lawyer is an officer of the court and is expected to conduct himself in a manner that helps the process of justice, not obstruct the functioning of courts.In a judgment delivered days after lawyers created mayhem in the Patiala House courts complex, the Delhi high court reminded members of the bar about their duties.

A bench of Justices Najmi Waziri and Ashutosh Kumar earlier this week held a lawyer guilty of criminal contempt and awarded him one-month imprisonment. The bench stressed that "institution of the judiciary has to be safeguarded from covert and insidious assaults from any quarter."

It convicted advocate Deepak Khosla for using intemperate language in court and pointed out that more than two dozen judges recused from hearings due to Khosla's behaviour.”

’Mocking at the court or using scandalous language against it or addressing the court in an abrasive manner or in such tone and tenor which shows disrespect towards the court tends to scandalise and lower the prestige of the court and is an interference with the administration of justice,’ the HC observed in a clear signal it won’t tolerate ruckus by lawyers.

Khosla said in an email that he would petition Chief Justice G Rohini that “no newspaper be allowed to publish any article on any matter pending or disposed of in court unless it is under the penmanship / authority of a person holding a law degree. Enough is enough!”

Read first contempt order (PDF)

Read order on contempt for Dedh Bench comment (PDF)

NOTE: A previous version of the story incorrectly stated that the CrPC precludes the court from staying criminal proceedings in Khosla’s case, whereas another statute is applicable. Also, Khosla said he never literally said "Dedh Bench" but said "Dedh bee order".

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