IN THE SUPREME COURT
OF INDIA
CRIMINAL
APPELLATE JURISDICTION
I.A.
NO. 193628 OF 2019
CRIMINAL APPEAL NO. 1238 OF 2019
CRIMINAL APPEAL NO. 1238 OF 2019
IN THE MATTER OF
SEEMA SAPRA …Appellant/Petitioner
Versus
COURT ON ITS OWN MOTION … Respondent
APPLICATION UNDER ARTICLE 142 OF THE
CONSTITUTION OF INDIA FOR MODIFICATION/ RECTIFICATION/ CLARIFICATION OF ORDER
DATED 14 AUGUST 2019 AND FOR CONSEQUENTIAL RELIEF
To
Hon'ble The Chief Justice of India and His Companion Judges of the
Supreme Court of India., the application of the Appellant/ Petitioner most
respectfully showeth:-
1.
The present application is being filed invoking Article 142 of the
Constitution of India which confers upon the Supreme Court of India the
jurisdiction and power to pass any order “as is necessary for doing complete
justice in any cause or matter”.
2.
On 14 August 2019, this Court disposed of Writ Petition Civil 1027/2018
filed by the Petitioner, an Advocate Ms Seema Sapra with the following
observation:
32. As
noted while disposing of the accompanying writ petition, we deem it
appropriate to dispose of even this writ petition with liberty to the
petitioner to pursue remedy before the Delhi High Court, already filed by the
petitioner. In our opinion, it may not be appropriate to permit the
petitioner to approach different forums for overlapping issues concerning her
security or her grievance regarding inaction of the Authorities to process
her complaint regarding sexual harassment. Accordingly, we dispose of this
writ petition with liberty to the petitioner to pursue remedy before the
Delhi High Court in the pending proceedings or by way of substantive
proceedings so that all the overlapping issues can be considered by the Court
appropriately.
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3.
It is important to point out the relief that was sought n Writ Petition
Civil 1027/2018.
(i) Issue a writ of Mandamus to Respondent
1, the Government of India through the Ministry of Home Affairs to act on the
Petitioner’s complaint forwarded to the President and Prime Minister of India
by email dated February 12, 2013 and to constitute a high level complaints
committee in accordance with the Supreme Court’s directions in Vishaka &
Others v. State of Rajasthan & Others and in Medha Kotwal Lele and Others
v. Union of India and Others to investigate zand redress the petitioner’s
complaint of sexual harassment against Mr Soli J. Sorabjee, when the latter
held the constitutional post of Attorney General of India;
(ii) Direct the CBI and Police to register an
FIR against Soli J Sorabjee for sexually assaulting the petitioner and
attempting to rape her after plying her with alcohol and after possibly
drugging her;
(iii) Direct the Supreme Court Gender
Sensitisation and Internal Complaints Committee to examine the petitioner’s
complaint of sexual harassment against Raian N Karanjawala;
(iv) In the alternative to prayer (i), direct
the Supreme Court Gender Sensitisation and Internal Complaints Committee to
examine the petitioner’s complaint of sexual harassment against Soli J
Sorabjee;
(v) Direct the respondent no. 1 to provide
the petitioner with Z+ security;
(vi) To
pass such other orders and further orders and to issue such other and further
writs as may be deemed necessary on the facts and in the circumstances of the
case.
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4.
Writ Petition Civil 1027/2018 was therefore disposed of by this Court by
order dated 14 August 2019 without a hearing or decision/finding on merits, and
only because the Court erroneously assumed that a similar or
connected writ petition had been filed in the Delhi High Court. No such writ
petition has been filed in the Delhi High Court.
5.
The Petitioner filed IA 165983/2019 on 25 October 2018 seeking clarification/
rectification of order dated 14 August 2019 with respect to observations on IA
300030/2018 and an incorrect statement of fact in paragraph 25 of the said
order, and in which application, the following was pointed out:
26. It is pointed out that in its common
order dated 14 August 2019 passed in the present appeal and in Writ Petition
Civil No. 13/2018 and Writ Petition Civil 1027/2018, this Hon’ble Court has
assumed an incorrect fact and proceeded on that basis. By virtue of order
dated 14 August 2019, both Writ Petition Civil 13/2018 and Writ Petition
Civil 1027/2018 have been disposed off without being heard or decided on
merits only because the Hon’ble Court notes that the Petitioner in those writ
petitions (who is the Appellant here, Ms Seema Sapra) has filed a petition in
the Delhi High Court for similar relief. With great respect, it is pointed
out that this assumption of fact by this Hon’ble Court in its order dated 14
August 2019 is completely incorrect. Ms Seema Sapra has not filed any other
petition in the Delhi High Court and had elected to enforce her fundamental
rights under Article 32 in Writ Petition Civil 13/2018 and Writ Petition
Civil 1027/2018. The Appellant again unambiguously states that she has not
filed a petition in the Delhi High Court for the relief sought in Writ
Petition Civil 13/2018 and Writ Petition Civil 1027/2018.
27. In paragraph 25 of the
order dated 14 August 2019, it is stated that “During the course of hearing,
we were informed by the petitioner that she has filed a writ petition in the
Delhi High Court.” As already clarified this statement is incorrect. Ms Seema
Sapra had and has not filed any writ petition in the Delhi High Court at all.
28. It is therefore prayed that
this statement in paragraph 25 of the order dated 14 August 2019 (“During the
course of hearing, we were informed by the petitioner that she has filed a
writ petition in the Delhi High Court.”) be removed from the order/ be
expunged and the record be corrected to accurately reflect that Ms Seema
Sapra had not filed any writ petition in the Delhi High Court, This
clarification/ correction of the order is important because this incorrect
fact ought not to have been the reason for this Hon’ble Court to dispose off
Writ Petition Civil 13/2018 and Writ Petition Civil 1027/ 2018 without
hearing or disposal on merits. As a result of this error by the Hon’ble
Court, the Appellant (Ms Seema Sapra) has been poisoned repeatedly since 14
August 2019 with acidic and corrosive chemicals, pesticides, organophosphates
and other noxious chemicals. She has chemical burns and blisters inside her
mouth, in the last one month, the enamel of her teeth has eroded because of
exposure to acidic inhalants. She is unable to breathe properly. And she has
no place to sleep and is being compelled to get some sleep in a tent in Lodhi
Gardens where she is being poisoned by persons approaching her tent, being
harassed, stalked, intimidated, attacked and threatened. The Police is being
used to stalk, target, harass and poison the Appellant with very senior
police officers involved. The Police
is complicit in the poisoning of the Appellant and is being used to hunt down
the Appellant like prey.
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6.
This IA 165983/2019 was allowed by this Court by
order dated 26 November 2019, and paragraph 25 of the order dated 14 August
2019 was amended interalia to delete the following portion and (specifically the
statement that “During the course of hearing, we were informed by the petitioner
that she has filed a writ petition in the Delhi High Court.)”
Portion deleted on 26 November 2019 from
paragraph 25 of order dated 14 August 2019
“During the course of hearing, we
were informed by the petitioner that she has filed a writ petition in the
Delhi High Court. In that case, the petitioner may pursue
that remedy to its logical end. If the relief claimed in the said writ
petition is insufficient, it will be open to the petitioner to amend the said
writ petition and/or to file a
substantive writ petition if fresh cause of
action has arisen.
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7.
Therefore, as this Court has now acknowledged
the correct factual position that no other similar or connected writ petition (in
relation to either Writ Petition Civil 13/2018 or Writ Petition Civil 1027/2018)
had or has been filed by the Petitioner before the Delhi High Court, it is
necessary in the interest of doing complete justice that the Court direct the
restoration of both Writ Petition Civil
13/2018 and Writ Petition Civil 1027/2018 and direct the Registry to list these
two cases for hearing on merits.
8.
As a matter of fact, during the
hearing on 26 November 2019, this Court had accepted the Petitioner’s
submission that in view of this court’s factual error in paragraph 25 of order
dated 14 August 2019, Writ Petition Civil 1027/2018 was wrongly disposed off. The
Petitioner had also submitted during the hearing on 26 November 2019 that Writ
Petition Civil 1027/2018 which included prayers for directions to Supreme Court
Judges chairing and comprising the Supreme Court Gender sensitization/ sexual
harassment committee could only be heard by the Supreme Court and not by the
High Court as the latter would have no authority to issue directions to Supreme
Court Judges. The Bench during the hearing on 26 November 2019 had appreciated
the force of these submissions and had stated that the Petitioner was free to
re-file Writ Petition Civil 1027/2018 in the Supreme Court and that this liberty
to the Petitioner to re-file Writ Petition Civil 1027/2018 as a fresh petition
before the Supreme Court would be clarified in the order. A sentence stating
that this liberty was available to the Petitioner was actually dictated in
court but is missing from the typed order dated 26 November 2019.
9.
It is submitted that since this
Hon’ble Court has accepted that it erroneously stated in its 14 August 2019
order that the Petitioner had approached the High Court and since this Hon’ble
Court has since deleted the in-correct statement of fact from paragraph 25 of
the order dated 14 August 2019, the consequential correction must also apply to
paragraph 32 of the order dated 14 August 2019. Since the sole basis in
paragraph 32 for this Court to have
disposed off Writ Petition Civil 1027/2018 without a hearing on merits was the “non-existent”
petition filed in the Delhi High Court, it would now be necessary in the
interest of justice to restore Writ Petition Civil 1027/2018 and to direct it
to be placed before the Court for hearing and disposal on merits.
10.
Paragraph 32 of the order dated 14
August 2019 is based upon the following statement in paragraph 25 of the same
order - “During the course of hearing, we were informed by the petitioner that
she has filed a writ petition in the Delhi High Court.” Since this statement
has now been deleted from paragraph 25 because it was erroneous in fact, it
must necessarily follow as a consequence, that paragraph 32 must also be
expunged as it is based upon incorrect facts and Writ Petition Civil 1027/2018
must be restored.
11.
The Petitioner invokes and relies
upon Article 142 of the Constitution of India in this application and invokes
the power and jurisdiction of this Hon’ble Court to do complete justice. The
Petitioner’s rights under Article 32, especially in a petition complaining of
sexual harassment and sexual assault by two powerful lawyers, must not be
defeated as a result of a factual error by this Hon’ble Court which has
resulted in a denial of the hearing of the Writ Petition and therefore in
injustice.
12.
It is clarified that the present
application seeks restoration of Writ Petition Civil 1027/2018 for a hearing on
merits. It does not seek a review of the order dated 14 August 2019. The order
dated 14 August 2019 has not passed any order on the merits of Writ Petition
Civil 1027 and therefore a review will not lie.
13.
Though there are innumerable Supreme
Court decisions on Article 142, the following passage from an Essay on Article
142 by Dr B S Chauhan, a former Judge of the Hon’ble Supreme Court titled “Courts
and its endeavour to do Complete Justice” is a good summary of Article 142 and
its exhortation to the Supreme Court to do complete justice and also
establishes the case for the need to apply Article 142 to the prayers in the
present application.
In light of
the above, it can be said that the functioning of the apex court is largely governed
by its endeavor to ensure that justice is done. It does not function as a
conventional court intending to decide matters between parties following the
rigors of procedure, though is not
marked by
complete absence of it. Rather, the Supreme Court’s functioning may be termed
as more of a supervisory jurisdiction ensuring that any decision of a court
or tribunal has not lead to injustice to any of the parties. It is for this
very purpose that the apex court was entrusted with great plenary power in
the form of Article 142 which says that the Supreme Court in the exercise
of its
jurisdiction may pass such decree or make such order as is necessary for
doing complete justice in any cause or matter pending before it.
It is to be
noted that this article uses the word `complete justice` rather than the term
`justice`. This is because complete justice travels much beyond the concept
of giving justice to a party. Complete justice strives at imparting justice
not just for one side alone, but for all. Even if a party has wronged
another, the court cannot become an instrument to perpetuate wrong upon him.
The expression `complete justice` engrafted in Article 142 is of wide amplitude
“couched with elasticity to meet myriad situation”. Complete justice is
justice according to law and the Supreme Court would be well within its power
to even mould the relief so sought by the parties
to ensure
that no illegality is perpetuated. The main purpose of Article 142 and the
endeavor to do complete justice has been explained by this court in Manohar
Lal Sharma v. Principal Secy & Ors. wherein the apex court held that `the
Supreme Court has been conferred with very wide powers for proper and
effective administration of justice. The Court has inherent power and jurisdiction
for dealing with any exceptional situation in larger public interest which
builds confidence in the rule of law and strengthens democracy. The Supreme
Court as the sentinel on the qui vive, has been invested with the powers
which are elastic and flexible and in certain areas
the
rigidity in exercise of such powers is considered inappropriate. In Shahid
Balwa v. Union of India & Ors., the court said that Article 136 read with
Article 142 of the Constitution of India enables this Court to pass such
orders, which are necessary for doing complete justice in any cause or matter
pending before it and, any order so made, shall be enforceable throughout the
territory of India. The power to do complete justice under Article 142 is in
the nature of a corrective measure whereby equity is given preference over
law to ensure that no injustice is caused.
Equipped
with such great discretionary powers, the Supreme Court has often taken up
the task of ensuring that honest parties are not the ultimate suffers and
that the guilty/or the wrong is ultimately punished. Power under Article 142
is very wide and can be used to pass any order which the court thinks is
necessary for doing complete justice between the parties. There can be no
straight jacket formula for its exercise nor there can be any fetters or
limited scope of application for the powers under Article 142 is plenary in
nature. It seeks to ensure that no injustice is caused by the rigors of law
or due to the perversity of findings recorded by the courts below or such
cases. It acts as an equity jurisdiction without losing the characteristics
of being an action in accordance with law. Article 142 is used as a tool to
balance the conflicting interests of the parties and to ensure that
ultimately, the righteous succeeds. It is an inherent power and jurisdiction
for dealing with any extraordinary situation in the larger interests of
administration of justice and for preventing any manifest injustice being
done. However, the power is to be exercised only in exceptional circumstances
for furthering the ends of justice and not in a casual and a mechanical
manner. The purpose of Article 142 is to do effective, real and substantial justice,
coextensive and commensurate with the needs of justice in a given case in
order to meet any exigency that may arise. However, it is not to be exercised
in a case where there is no basis in law which can form an edifice for
building up a superstructure. Keeping these principles in mind, the apex
court has not hesitated to exercise its power under Article 142, though fully
aware of the restraints in judicial decision making process, in order to do
complete justice.
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14.
As paragraph 32 of the order dated 14
August 2019 reproduced hereinabove shows, the only reason for the Supreme Court
to have disposed off Writ Petition Civil 1027/2018 was the assumption by the
Court of a completely incorrect fact, namely that the Petitioner had approached
the High Court in a writ petition for similar relief. The Petitioner has not
done that. There is no similar or connected petition before the High Court.
This correct fact has now been accepted by the court in its order dated 26
November 2019. The effect of this is that paragraph 32 of the order dated 14
August 2019 cannot stand. The consequential relief that must flow from this is
that this Hon’ble Court must direct the reinstatement of Writ Petition Civil
1027/2018 and direct the registry to list the case for hearing.
15.
It is further submitted that
paragraph 32 of the order dated 14 August 2019 cannot stand and must be deleted
from the order dated 14 August 2019. Paragraph 32 as it reads can be construed
by the Supreme Court Registry to prevent the Petitioner from refiling her
sexual harassment petition in the Supreme Court. The effect of deletion of
paragraph 32 from the order dated 14 August 2019 must be the restoration of
Writ Petition Civil 1027/2018 for a hearing and decision on merits.
16.
The present appeal has been admitted and the operation of the impugned
order stayed by this Hon’ble Court on 14 August 2019, by a common order passed
in Criminal Appeal Diary No. 10342/2019 and in Writ Petition Civil 13/2018 and
Writ Petition Civil 1027/2018.
17.
The present application is being made
in the interest of justice.
PRAYER
It is, therefore, most respectfully prayed that this Hon'ble Court may
graciously be pleased to allow this Application and:-
(i)
Delete/ expunge paragraph 32 from the order dated 14 August 2019 as it
is admittedly factually incorrect as no petition as stated therein has actually
been filed in the Delhi High Court;
(ii)
Direct the consequential restoration of Writ Petition Civil 1027/2018
and direct the Supreme Court Registry to list the restored Writ Petition Civil
1027/2018 for hearing;
(iii)
Clearly and unambiguously clarify that the Petitioner has the liberty to
and is entitled in law to refile before the Supreme Court her writ petition seeking
redress of her sexual harassment and sexual assault complaints against Soli J.
Sorabjee and Raian N. Karanjawala and expressly clarify that nothing in Order/
Judgment dated 14 August 2019 prevents/ restricts / bars her from doing so;
(iv)
Direct that the Supreme Court Registry will not create any unlawful,
arbitrary or malafide obstruction/ impediment to the Petitioner refiling her
writ petition on her complaints of sexual harassment and sexual assault against
Soli Sorabjee and Raian Karanjawala and that the Registry will expeditiously process,
register and list for hearing any such refiled petition in accordance with law
and in accordance with Supreme Court rules;
(v)
To pass such other orders and further orders as may be deemed necessary
on the facts and in the circumstances of the case.
FOR WHICH ACT OF KINDNESS, THE APPELLANT/ PETITIONER SHALL AS IN DUTY
BOUND, EVER PRAY.
FILED BY:
SEEMA SAPRA
APPELLANT/PETITIONER-IN-PERSON
DRAWN ON: 16/12/2019
FILED ON: 16/12/2019
IN THE
SUPREME COURT OF INDIA
CRIMINAL
APPELLATE JURISDICTION
I.A. NO. OF 2019
IN
CRIMINAL APPEAL NO. 1238 OF 2019
CRIMINAL APPEAL NO. 1238 OF 2019
IN THE MATTER OF
SEEMA SAPRA …Appellant/Petitioner
Versus
COURT ON ITS OWN MOTION … Respondent
AFFIDAVIT
I, Seema Sapra, aged 48 years, D/o Late A. R. Sapra, presently homeless
in New Delhi, do hereby solemnly state and affirm as under:
1. That I am the Appellant/ Petitioner and am familiar with the facts
and circumstances of the case and am competent and authorized to swear this
Affidavit.
2. That I have drafted, read and understood the accompanying application
under Article 142 of the Constitution of India seeking
modification/ rectification/ clarification of order dated 14 August 2019 and
for consequential relief and I state
that the contents of the application are based on my personal knowledge and on
other sources which I believe to be true and correct.
DEPONENT
VERIFICATION:
I, the above-named Deponent, do hereby verify that the contents of the
above Affidavit are true and correct to my knowledge, no part of it is false
and nothing material has been concealed there from.
Verified at New Delhi on this 16th day of December 2019.
DEPONENT
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