IN RE: PERRY KANSAGRA ..ALLEGED CONTEMNOR

 IN RE: PERRY KANSAGRA ..ALLEGED CONTEMNOR

Landmark Cases of India / सुप्रीम कोर्ट के ऐतिहासिक फैसले

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REPORTABLE

IN THE SUPREME COURT OF INDIA

INHERENT JURISDICTION

SUO-MOTU CONTEMPT PETITION (CIVIL) NO.3 OF 2021

 IN RE: PERRY KANSAGRA ..ALLEGED CONTEMNOR

J U D G M E N T

Uday Umesh Lalit, J.

1. The facts and circumstances leading to the recall of the Judgment dated

28.10.2020 and the Order dated 08.12.2020 and issuance of notice for initiation of

contempt proceedings against the alleged contemnor Perry Kansagra (hereinafter

referred to as Perry) were dealt with in sufficient detail in paragraphs 1 to 33 of the

Order dated 7.10.2021 passed by a bench of three judges of this Court in

Miscellaneous Application No.1167 of 2021 in Civil Appeal No.3559 of 2020. For

avoiding repetition of the basic facts, paragraphs 1 to 33 of said Order dated

7.10.2021 be read as part of this Order.

2. After discussing the relevant facts and circumstances in aforesaid paragraphs

1 to 33, paragraphs 34 to 36 of the Order dated 7.10.2021 set out the essential

features of the matter as under:-

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“34. The documents and the developments referred to hereinabove

show:-

(i) Perry had given an unequivocal undertaking to the High Court that

he would submit to the jurisdiction of the Indian Courts. He had also

given a solemn undertaking to this Court that he would comply with

the Order dated 28.10.2020 in addition to the Judgment dated

28.10.2020.

(ii) In response to a specific submission raised in Miscellaneous

Application No.2140 of 2020 (quoted in paragraph 16 hereinabove),

it was submitted by Perry that he had subjected himself to the

jurisdiction of this Court. While dealing with the rival submissions in

the Order dated 8.12.2020, this Court made it clear that the

undertaking given by Perry to the High Court would continue to be

operative, in addition to the undertaking given to this Court.

(iii) The Judgment dated 28.10.2020 had called upon Perry to obtain a

Mirror Order’ from the concerned Court in Nairobi to reflect the

directions contained in the Judgment dated 28.10.2020. Thereafter,

the Order dated 9.11.2020 passed by the High Court of Kenya at

Nairobi along with the relevant application moved by Perry seeking

registration of the Judgment dated 28.10.2020, was filed in this Court.

(iv) There was a dispute whether the registration granted vide order

dated 9.11.2020 by the High Court of Kenya at Nairobi amounted to

fulfilling the requirement of a “Mirror Order’. The submissions on the

point were dealt with in paragraphs 8 and 9 of the Order dated 8.

12.2020. The learned counsel appearing for Perry had relied upon the

opinion given by M/s. GMC Advocates which in turn had relied upon

the decision of the High Court of Kenya at Nairobi in Re: Matter of I

W P (Infant) [2013] eKLR to submit that the registration itself was a

“Mirror Order” in compliance of the requirements of the Judgment

dated 28.10.2020.

Relying on the submissions so advanced on behalf of Perry

and in deference to the Order dated 9.11.2020 passed by the High

Court of Kenya at Nairobi, in paragraph 10 of the Order dated

8.12.2020, this Court observed that the registration of the Judgment

of this Court by the High Court of Kenya at Nairobi was sufficient

compliance of the directions to obtain a “Mirror Order” issued from a

Competent Court in Kenya.

(v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020

passed by this Court were thus premised on the submission that the

Order dated 9.11.2020 passed by the High Court of Kenya at Nairobi

while registering the Judgment dated 28.10.2020 passed by this Court

was in fact the “Mirror Order’.

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(vi) It now transpires that by a subsequent Order dated 21.5.2021, the

High Court of Kenya at Nairobi in Paragraph 13 of its order observed

that the judgment of this Court was not registrable and dismissed the

Originating Summons dated 30.10.2020 filed by Perry.

(vii) At no stage Perry brought this development to the notice of this

Court that the Originating Summons moved by him seeking

registration of the Judgment dated 28.10.2020 passed by this Court

was dismissed by the High Court of Kenya at Nairobi on 21.5.2021.

Having submitted to the jurisdiction of the Indian Courts it was the

bounden duty of Perry to keep this Court appraised of all the

developments particularly when the “Mirror Order” was the fulcrum

on the basis of which this Court handed over to him the custody of

Aditya.

(viii) This infraction gets more pronounced in the light of the stand

taken in his Affidavit dated 5.8.2021 filed in this Court and referred to

in Paragraph 22 hereinabove. In that affidavit Perry unequivocally

stated that he had not even the remotest intention to disobey the Order

passed by this Court including the Judgment dated 28.10.2020. Yet,

something as basic and fundamental like the Order dated 21.05.2021

was not brought to the notice of this Court. Logically, Perry should

have brought back Aditya to this country so that status quo ante could

be restored and appropriate orders could thereafter be passed by this

Court.

(ix) Miscellaneous Application No.1167 of 2021 filed by Smriti had

annexed e-mails exchanged between her and Perry and prayed that

Perry be directed to comply with directions regarding vacation access.

In response, apart from stating that he had no intentions to disobey

the orders passed by this Court, Perry voiced concern about sending

Aditya to India. Being well aware of the conditions in this Country, a

solution was devised by this Court in its Order dated 11.08.2021 and

certain directions to facilitate the entry of Aditya into and his exit

from India in a safe manner were issued. Pertinently on 11.08.2021,

the attention of this Court was not invited to the fact that the

Situational Report dated 09.08.2021 as referred to hereinabove was

made or that the matter was being looked into by the concerned

authorities in Kenya.

(X) Despite clear directions issued in the Order dated 11.08.2021

Perry had not taken any steps to comply with the Order. As a matter

of fact, by the time the matter was taken up for further hearing on

16.08.2021, Perry sought to withdraw the authorization in favour of

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the learned counsel who were all the while representing him before

this Court.

(XI) As disclosed in I.A. 100550 of 2021 week-end Skype meetings

between Smriti and Aditya were not facilitated from the week-end of

14.08.2021 and 15.08.2021. Perry also blocked all means of

communications with Smriti. Though in law the learned advocates

who had entered appearance on behalf of Perry would continue to

represent him, notice was additionally directed to be served on Perry

through Indian embassy of Nairobi.

(XII) In the light of the defiant attitude exhibited by Perry and his

refusal to abide by the Orders passed by this court, ad-interim relief in

terms of prayers (d) (e) and (f) made by Smriti in her I.A. No.100550

of 2021 was granted by this Court vide its order dated 17.08.2021.

(XIII) Finally, Petition No.E301 of 2021 and -Notice of Motion were

moved on behalf of Perry, filed in the High Court of Kenya at Nairobi

on 26.08.2021. The stand taken by Perry in said Petition and Notice

of Motion is that it would be humiliating to compel Aditya to take

OCI Card; that wishes of Aditya were not ascertained by this Court;

that there was no valid Mirror Order and that the orders passed by this

Court were without jurisdiction. He has prayed for declaration that

there existed no valid “Mirror Order” and in the circumstances the

orders passed by this Court are incapable of compliance and/or

enforcement.

35. These developments not only show the defiant and contumacious

posture now adopted by Perry but prima facie support the

submissions of Smriti made in Interim Applications referred to in

paragraphs 25, 27, and 28 herein above. There appears to be concrete

material and reason to believe that it was a well-planned conspiracy

on part of Perry to persuade this Court to pass orders in his favour and

allow him the custody of Aditya and then turn around and defy the

Orders of this Court.

36. It is fundamental that a party approaching the Court must come

with clean hands, more so in child custody matters. Any fraudulent

conduct based on which the custody of a minor is obtained under the

orders of the Court, would negate and nullify the element of trust

reposed by the Court in the concerned person. Wherever the custody

of a minor is a matter of dispute between the parents or the concerned

parties, the primary custody of the minor, in parens patriae

jurisdiction, is with the Court which may then hand over the custody

to the person who in the eyes of the Court, would be the most suitable

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person. Any action initiated to obtain such custody from the Court

with fraudulent conduct and design would be a fraud on the process

of the Court.”

3. Thereafter, the relevant decisions on the point as well as the submissions of

the learned Solicitor General, Mr. Amarjit Singh Chandhiok and Ms. Sonia Mathur,

learned Senior Advocates appearing for Smriti Madan Kansagra (hereinafter

referred to as Smriti) and Mr. Anunaya Mehta, learned Advocate were recorded in

the Order dated 7.10.2021 and it was concluded: -

“39. Though, at every juncture solemn undertakings were given by

Perry to the High Court and this Court, such undertakings were not

only flagrantly violated but a stand is now taken challenging the very

jurisdiction of the Indian Courts, despite having submitted himself to

the jurisdiction of the Indian Courts. Such conduct, prime facie, can

certainly be said to be contumacious calling for an action in contempt

jurisdiction. Moreover, the non-disclosure of material facts by Perry

at the relevant junctures also shows that he approached the Indian

Courts with unclean hands.

40. It was only on the basis of the solemn undertakings given by

Perry and the order dated 09.11.2020 passed by the High Court of

Kenya at Nairobi which was projected to be a “Mirror Order” in

compliance of the directions issued by this Court, that the custody of

Aditya was directed to be handed over to Perry. Since the false and

fraudulent representations made by Perry were the foundation, on the

basis of which this Court was persuaded to handover custody of

Aditya to him, it shall be the duty of this Court to nullify, in every

way, the effect and impact of the orders which were obtained by

playing fraud upon the Court. All the decisions referred to

hereinabove point in that direction. This Court would therefore be

well within its power and justified to recall all the orders and continue

to assume jurisdiction to ensure that the situation as it prevailed prior

to the passing of the orders by the Trial Court, the High Court and this

Court, gets restored, whereafter appropriate decision can be taken in

parens patriae jurisdiction.

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41. It is true that Aditya is now in Kenya. But he was taken to Kenya

only on the basis of fraudulently obtained orders from this Court. In

our considered view, the Indian Courts which were the Courts of first

contact and had complete jurisdiction over Aditya, must continue to

exercise such power and jurisdiction to correct the wrongs which

occurred as a result of fraudulent conduct on part of Perry. It may be

stated here that at every juncture, welfare of Aditya was and will

always continue to be the primary consideration for the Indian Courts.

He was interviewed by very competent and qualified Counsellors

whose reports and assessments have been part of the record. Aditya

was also interviewed by the Trial Court, the High Court and this

Court. At no stage any mistreatment by Smriti was even remotely

suggested or adverted to by Aditya. After Aditya is brought back to

this country, this Court will certainly have appropriate interactions

with Aditya to understand his Wishes while considering his welfare.”

4. In light of the facts and circumstances, following directions were thereafter

issued by this Court in said Order dated 7.10.2021: -

“42. In the premises, we pass following directions:

(A) The Judgment dated 28.10.2020 and the Order dated 08.12.2020

Passed by this Court are recalled.

(B) The Guardianship Petition No.53 of 2012 filed by Perry in the

District Court, Saket, New Delhi seeking permanent custody of

Aditya and the resultant proceedings arising therefrom including

MAT APP (F.C) No.3Q of 2018 filed in the High Court, are

dismissed.

(C) the Orders granting custody having been recalled, the custody of

Aditya with Perry is declared to be illegal and ab initio void.

(D) Issue notice to Perry as to why proceedings in contempt

jurisdiction be not initiated against him for having violated the

solemn undertaking given to this Court, returnable on 16th

November, 2021. The Registry is directed to register Suo Motu

Contempt Case and proceed accordingly.

(E) The notice shall additionally be served through e-mail directed at

r the e-mail id used by Perry in communicating with Smriti. The

details in that behalf shall be furnished to the Registry by Smriti

within two days.

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(F) The Central Bureau of Investigation, New Delhi through its

Director is directed to initiate appropriate proceedings by registering

criminal proceedings against Perry and to secure and entrust the

custody of Aditya to Smriti.

(G) The Secretary, Ministry of External Affairs, Government of India,

New Delhi and the Indian Embassy in Kenya are directed to ensure

that all possible assistance and logistical support is extended to Smriti

in

securing the custody of Aditya.

(H) From and out of the amount of Rs.1 crore deposited by Perry in

this Court, at this stage, an amount of Rs.25 lakhs be handed over to

Smriti towards legal expense incurred or required to be incurred

hereafter. Rest of the money shall continue to be kept in deposit with

the Registry till further orders.”

5. Pursuant to direction (D) as stated above, the instant Suo-moto Contempt

Petition stands registered against Perry.

6. In its Order dated 25.1.2022, while dealing with the instant petition, this

Court observed:

“Accordingly, the matter is listed before us today to consider whether

charges need to be framed or not. It must a stated here that Mr. Perry

Kansagra has chosen not to file any response in the matter.

Having considered the entirety of the matter, in our view, case is

definitely made out to proceed against Mr. Perry Kansagra in

contempt jurisdiction: -

i) For having willfully violated the directions issued by this Court,

and;

ii) for having acted in breach of solemn undertakings given to the

courts including this Court, and;

jii) for having obstructed the course of justice and committed criminal

contempt of Court.

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The Registry is, therefore, directed to issue notice to Mr. Perry

Kansagra in terms of Rules to Regulate Proceeding for Contempt of

the Supreme Court, 1975 in Form I appended to said Rules. The

Registry is further directed to quote the relevant portions of

Paragraphs 38 to 40 of the order dated 7th October, 2021 as well as the

prima facie observations as stated above, warranting initiation. of

proceedings in Contempt.

Let notice be made returnable on 8 March, 2022. Mr..Perry

Kansagra is directed to remain personally present on the next date of

hearing.

In addition to the regular mode of service, the notice shall be

served in the same manner as was done on the earlier occasion and

the office of the learned Solicitor General is requested to take

appropriate steps in the matter.

Mr. Perry Kansagra is at liberty to file response to the

proceedings on or before 22™ February, 2022, with advance copy to

the other side.”

7. Since despite being served, Perry had not appeared, following order was

passed by this Court on 8.3.2022:

“While directing initiation of contempt proceedings and

issuance of notice in Form-I appended to the Rules to Regulate

Proceedings for Contempt of the Supreme Court, 1975, vide order

dated 25.01.2022, notice was directed to be issued to Mr. Perry

Kansagra.

According to the office report, notice has been issued through

Ministry of Law & Justice by Speed Post on 03.02.2022 as well as

“through e-mail as was done on the earlier occasion”. However, the

office report states that status of delivery has not been received from

the Ministry of Law & Justice so far.

Though the office report indicates that notice was issued

through e-mail “as was done on earlier occasion”, for removal of

doubts, the Registry is directed to send notice to be served upon Mr.

Perry Kansagra through e-mail ID from which communications were

received on behalf of Mr. Perry Kansagra.

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Ms. Sonia Mathur, learned Senior Advocate appearing for the

applicant Ms. Smriti Madan Kansagra, submits that it has been four

months but Ms. Smriti Madan Kansagra is unaware about the status

of proceedings initiated by the Central Bureau of Investigation.

We, therefore, call upon the Central Bureau of Investigation to

file the Status Report before the next date of hearing. Let an

appropriate intimation be sent by the Registry to the Central Bureau

of Investigation.”

8. Accordingly, status report was filed by the Central Bureau of Investigation

and the matter was taken up on 11.4.2022 when the following order was passed by

this Court:

“Status report has been submitted by the CBI which indicates

that Look Out Circular has already been issued by the CBI. A copy of

the report be given to Ms. Smriti Madan Kansagra.

IA No.53272 of 2022 has been filed by her seeking permission

to place on record certain additional documents. Having considered

the application, in our view, said documents must be made a part of

the record.

Reliance is placed by her on the order dated 9.3.2022 passed

in SLP (Crl.) No.2018 of 2020, in terms of which in similar

circumstances, direction was issued commanding CBI to issue Red

Corner Notice to secure the presence of the first respondent who was

a foreign national.

Ms. Sonia Mathur, learned Senior Advocate prays for similar

direction in the instant matter.

Paragraph 5 of said order dated 09.03.2022 discloses that

there was failure on part of the first respondent-husband to abide by

the terms and conditions imposed by the High Court. The

observations were made by this Court that such conduct may invite

action in contempt jurisdiction. In so far as the instant matter i,

concerned, this Court has already issued notice while exercising

contempt jurisdiction.

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The CBI is therefore, directed to issue Red Corner Notice to

secure the Presence of Perry Kansagra. Since the minor child was

secreted away as a part of design referred to and dealt with in the

earlier orders, we also direct the CBI to issue Yellow Corner Notice to

secure the presence of the child.

As the earlier orders indicate, we have initiated proceedings in

contempt petition and have already given sufficient time to Mr. Perry

Kansagra to respond to those notices and yet no response has been

filed.

We, therefore, direct the contempt petition to be listed on

21.04.2022 at 03:00 pm for final disposal.”

9. We heard Ms. Sonia Mathur, learned Senior Advocate for Smriti and Mr.

Rajat Nair for Central Bureau of Investigation. Mr. P. K. Manohar, learned

Advocate for Perry, however declined to advance any submissions.

10. Ms. Mathur, learned Senior Advocate highlighted the acts of contempt by

Perry under two segments namely those prior to July, 2021 and some which were

after July, 2021. The acts of contempt as described in the Notes of Arguments

submitted on behalf of Smriti were:-

“3. In the respectful submission of Smriti, the following are the acts

of contempt by Perry prior to July 2021:

i. The following are the affidavits/undertakings given by Perry,

which have been wilfully breached by him:

a. Undertaking/affidavit dated 02.08.2020 given to the

Delhi High Court wherein he undertook to “honour and

comply with the visitation rights given to Smriti” as well

as undertook to “submit to the jurisdiction of the Indian

Courts”.

b. Undertaking/affidavit dated 30.10.2020 filed by Perry

before this Hon’ble Court pursuant to the judgment dated

28.10.2020 that he would comply with the majority

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decision dated 28.10.2020 without any demur and in

letter and spirit.

c. Affidavit dated 20.11.2020 filed by Perry which

accompanied the “mirror order” wherein Perry stated that

the purported order dated 09.11.2020 passed by the

Kenyan High Court was a “mirror order”.

d. Perry Kansagra filed and continued to rely on the

purported mirror order dated 09.11.2020 in his reply to

M.A. No. 2140/2020, Copy of affidavit of compliance

dated 20.11.2020 filed by Perry and Copy of Affidavit

dated 26.11.2020 in support of the documents filed by

him.

e. Affidavit dated 09.12.2020 filed by Perry in compliance

of the order dated 08.12.2020 passed by this Hon’ble

Court wherein he state that he “shall truly and faithfully

abide by the order dated 08.12.2020”.

f. The order dated 08.12.2020 accepted the undertaking of

Perry Kansagra submitting to the jurisdiction of this

Hon’ble Court.

ii. Removing Aditya from the Indian jurisdiction on 10.12.2020

based on the aforementioned false undertakings/affidavits and

legally untenable purported “mirror order”.

iii. Perry’s deliberate failure to comply with the directions to another

“mirror order” as directed in paragraph 21 (D) of order dated

08.12.2020.

iv. As is evident from the aforementioned deliberate and wilful

conduct Petty, it is most respectfully submitted that Perry

kidnapped the child from Indian jurisdiction and removed the

child from parens patriae of the Court. Perry has abused the

process of this Hon’ble Court.

4. The following are the acts of contempt committed by Perry post

July, 2021.

i. Refusal to bring Aditya to India for Smriti to avail her visitations

in terms of the judgment dated 28.10.2020 and order dated

08.12.2020.

ii. Having the purported “mirror order” dated 09.11.2020 set aside

by Kenyan High Court by order dated 21.05.2021.

iii. Supressing the order dated 21.05.2021 passed by the Kenyan

High Court – Not filing the said order before this Hon’ble Court

either voluntarily when the said order was passed or with his

reply dated 05.08.2021 to MA No.1167/2021 or with his reply

dated 05.08.2021 to MA No.1167/2021 or with application dated

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09.08.2021 to place additional documents or with documents

filed on 11.08.2021.

iv. Refusal by Perry Kansagra to get the child to India to be

interviewed by this Hon’ble Court in terms of the order dated

08.12.2020.

v. In Perry’s reply and affidavit dated 05.08.2021 to MA No.

1167/2020, Perry stated that he is complying with the directions

of this Hon’ble Court passed on 28.10.2020 and 08.12.2020.

vi. Deliberate breach of the order dated 11.08.2021, i.e. not sending

Aditya to India on 13.08.2021 and not applying for Aditya’s OCI

card at the Indian High Commission at Nairobi, Kenya.

vii. Discharging his counsels at a crucial stage on 15.08.2021 i.e.

when this Hon’ble Court had listed the matter for compliance the

orders dated 11.08.2021, 08.12.2020 and 28.10.2020, and sought

the assistance of Perry’s counsels in this regard.

viii. Deliberately snapping off all ties between Aditya and Smriti, not

only by not sending Aditya to India on 13.08.2021, but also

stopping all Skype access from 15.08.2021, thereby deliberately

and wilfully breaching the orders dated 28.10.2020 and

08.12.2020.

ix. Initiating proceedings before the Kenyan High Court in violation

of his aforementioned undertakings/affidavits and the order dated

17.08.2021 where a world-wide ad interim ex-parte anti suit

injunction order was passed by against Perry from proceeding

qua the custody/guardianship of Aditya. The tone and tenor of

the Perry’s petition, affidavit and notice of motion are

contumacious, scandalous and made in an overt attempt to lower

the majesty of this Hon’ble Court.

x. Obtaining an order dated 30.08.2021 from the Kenyan High

Court restraining Smriti from taking Aditya out of Kenya or his

custody, in violation of the orders dated 11.08.2021 and

17.08.2021. Perry has deliberately sought to remove this

Hon’ble Court as the parens patriae of Aditya.

xi. Perry continued and deliberate refusal to appear before this

Hon’ble Court from 15.08.2020 (after he discharged his

advocates) and blocked Smriti on all usual forms of

communication (email and WhatsApp).

xii. Perry’s refusing to accept the repeated attempts of the service of

the process of this Hon’ble Court in the contempt proceedings.

[elaborated in point no.6]

xiii. Perry’s continued refusal to appear before this Hon’ble Court in

person despite the order dated 18.10.2021, 01.02.2022 and

16.03.2022 passed in SMC No.3 of 2021.”

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11. Our attention was also invited to the decisions in a) Hadkinson vs.

Hadkinson1

, where the court held that the removal of a child by a custodial parent

in violation of the orders passed by the court, was contempt of the grossest kind;

and that the contemnor would not have any right to be heard until the child was

brought back to the jurisdiction of the court; b) Regina vs. Jones (Robert)2

, where

the Court of Appeal held that the applicant had waived his right to be present at the

trial by his conduct in absconding and in such circumstances, the judge had a

discretion to allow the trial to proceed in the absence of the applicant; and c) of this

Court in the matter of Anil Panjwani3

. It was thus submitted that unless and until

Aditya was brought back to the jurisdiction of this Court, Perry would not be

entitled to be heard in the matter and that the instant contempt proceedings could

as well be taken to logical conclusion in his absence.

It was further submitted that the conduct of Perry in tendering affidavits and

undertakings containing false statements was not only fraudulent but also

amounted to perjury and criminal contempt. The decisions of this Court in

Dhananjay Sharma v. State of Haryana4

, Chandra Shashi v. Anil Kumar

1 [1952] 2 All ER 567

2 1972 1 WLR 887

3 (2003) 7 SCC 375

4 (1995) 3 SCC 757

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Sharma5

and in ABCD v. Union of India6

 were relied upon in support of the

contention.

12. While considering whether the conduct of Perry was fraudulent or not, this

Court had considered various decisions in paragraph 37 of its Order dated

7.10.2021 whereafter it was observed that it would be the duty of this Court to

nullify the effect and impact of the orders which were obtained after practising

fraud upon the Court. This Court, therefore, recalled the Judgment dated

28.10.2020 and the Order dated 08.12.2020. At the same time, non-disclosure of

material facts by Perry at the relevant junctures were also prima facie found to be

contumacious. Therefore, the instant proceedings in the contempt jurisdiction were

initiated suo moto by this Court.

13. The first set of decisions relied upon by Ms. Mathur deal with the rights of a

contemnor or a violator to be heard until such contemnor or violator purges the

contempt. Though Ms. Mathur was quite right in her submission, we had adjourned

the matter suitably on few occasions so that adequate opportunity could be availed

of by Perry and submissions on his behalf could be advanced. Even at the final

hearing stage, we had invited Mr. P. K. Manohar, learned Advocate for Perry to

advance his submissions which offer, however, was not availed of.

5 (1995) 1 SCC 421

6 (2020) 2 SCC 52

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14. The second set of decisions relied upon by Ms. Mathur are on the point

whether tendering of affidavits and undertakings containing false statement would

amount to criminal contempt or not. At this stage, we may extract following

paragraphs from the decision of this Court in ABCD v. Union of India6 which had

considered some of the previous decisions of this Court on the point:

15. Making a false statement on oath is an offence punishable under

Section 181 of the IPC while furnishing false information with intent to

cause public servant to use his lawful power to the injury of another

person is punishable under Section 182 IPC. These offences by virtue of

Section 195(1)(a)(i) of the Code can be taken cognizance of by any court

only upon a proper complaint in writing as stated in said section. In

respect of matters coming under Section 195(1)(b)(i) of the Code,

in Pushpadevi M. Jatia v. M.L. Wadhawan [Pushpadevi M. Jatia v. M.L.

Wadhawan, (1987) 3 SCC 367 : 1987 SCC (Cri) 526] prosecution was

directed to be launched after prima facie satisfaction was recorded by this

Court.

16. It has also been laid down by this Court in Chandra

Shashi v. Anil Kumar Verma [Chandra Shashi v. Anil Kumar Verma,

(1995) 1 SCC 421 : 1995 SCC (Cri) 239] that a person who makes an

attempt to deceive the court, interferes with the administration of justice

and can be held guilty of contempt of court. In that case a husband who

had filed a fabricated document to oppose the prayer of his wife seeking

transfer of matrimonial proceedings was found guilty of contempt of

court and sentenced to two weeks' imprisonment. It was observed as

under: (SCC pp. 423-24 & 427, paras 1-2 & 14)

“1. The stream of administration of justice has to remain unpolluted

so that purity of court's atmosphere may give vitality to all the organs of

the State. Polluters of judicial firmament are, therefore, required to be

well taken care of to maintain the sublimity of court's environment; so

also to enable it to administer justice fairly and to the satisfaction of all

concerned.

2. Anyone who takes recourse to fraud, deflects the course of judicial

proceedings; or if anything is done with oblique motive, the same

interferes with the administration of justice. Such persons are required to

be properly dealt with, not only to punish them for the wrong done, but

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also to deter others from indulging in similar acts which shake the faith

of people in the system of administration of justice.

***

14. The legal position thus is that if the publication be with intent to

deceive the court or one made with an intention to defraud, the same

would be contempt, as it would interfere with administration of justice. It

would, in any case, tend to interfere with the same. This would definitely

be so if a fabricated document is filed with the aforesaid mens rea. In the

case at hand the fabricated document was apparently to deceive the court;

the intention to defraud is writ large. Anil Kumar is, therefore, guilty of

contempt.”

17. In K.D. Sharma v. SAIL [K.D. Sharma v. SAIL, (2008) 12 SCC

481] it was observed: (SCC p. 493, para 39)

“39. If the primary object as highlighted in Kensington Income Tax

Commrs. [R. v. General Commissioners for Purposes of Income Tax Acts

For District of Kensington, ex p Princess Edmond De Polignac, (1917) 1

KB 486 : 86 LJKB 257 : 116 LT 136 (CA)] is kept in mind, an applicant

who does not come with candid facts and “clean breast” cannot hold a

writ of the court with “soiled hands”. Suppression or concealment of

material facts is not an advocacy. It is a jugglery, manipulation,

manoeuvring or misrepresentation, which has no place in equitable and

prerogative jurisdiction. If the applicant does not disclose all the material

facts fairly and truly but states them in a distorted manner and misleads

the court, the court has inherent power in order to protect itself and to

prevent an abuse of its process to discharge the rule nisi and refuse to

proceed further with the examination of the case on merits. If the court

does not reject the petition on that ground, the court would be failing in

its duty. In fact, such an applicant requires to be dealt with for contempt

of court for abusing the process of the court.”

18. In Dhananjay Sharma v. State of Haryana [Dhananjay

Sharma v. State of Haryana, (1995) 3 SCC 757 : 1995 SCC (Cri) 608]

filing of a false affidavit was the basis for initiation of action in contempt

jurisdiction and the persons concerned were punished.”

Thereafter, in suo moto exercise of power, proceedings in contempt

jurisdiction were initiated against said petitioner.

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15. It is thus well settled that a person who makes a false statement before the

Court and makes an attempt to deceive the Court, interferes with the administration

of justice and is guilty of contempt of Court. The extracted portion above clearly

shows that in such circumstances, the Court not only has the inherent power but it

would be failing in its duty if the alleged contemnor is not dealt with in contempt

jurisdiction for abusing the process of the Court.

16. The essential features of the matter as culled out in paragraph 34 of the

Order dated 07.10.2021 were relied upon to arrive at a prima facie observation that

Perry was guilty of contempt of Court. Though notice was issued to Perry, no

response has been tendered. We find that the material on record clearly shows

violation on part of Perry. The observations made in paragraph 34 of the order

dated 7.10.2021 were on the basis of record. Having considered the entirety of the

matter, in our view, Perry is guilty of having committed criminal contempt of Court

apart from the contempt for violating express undertakings given to the Courts,

including this Court. We accordingly hold Perry guilty under the Contempt of

Courts Act, 1971.

17. Though the instant proceedings can be taken to logical conclusion and order

of sentence can be awarded even in the absence of Perry, we give final opportunity

to Perry to present himself before this Court on 22.07.2022 at 3.00 pm along with

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Aditya. He shall then have an opportunity to advance appropriate submissions on

the issue of punishment to be awarded to him. It shall also be open to Perry to

purge himself of contempt in which case a sympathetic view may be taken in the

matter.

Let copy of this Order be served upon Perry through email ID used by him

in serving process upon Smriti. Additionally, a copy shall be given to Mr. P.K.

Manohar, learned Advocate.

18. For securing the presence of Perry and Aditya before this Court and for

effective implementation of the Orders issued by this Court, the Union agencies

including the Central Bureau of Investigation shall have and shall exercise all the

powers, not necessarily restricted to the following directions issued in the Order

dated 07.10.2021:

 “The Central Bureau of Investigation, New Delhi through its

Director is directed to initiate appropriate proceedings by registering

criminal proceedings against Perry and to secure and entrust the custody

of Aditya to Smriti.

 The Secretary, Ministry of External Affairs, Government of India,

New Delhi and the Indian Embassy in Kenya are directed to ensure that

all possible assistance and logistical support is extended to Smriti in

securing the custody of Aditya.”

It must be stated here that the learned Solicitor General had assured this

Court during the hearings at the interim stages that every possible help and

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assistance shall be extended by the Union agencies and the Indian Embassy in

Kenya in securing the presence of Perry and Aditya before this Court.

19. List the matter on 22.07.2022 at 3.00 pm.

….……………………………..J.

[Uday Umesh Lalit]

….……………………………..J.

[Pamidighantam Sri Narasimha]

New Delhi;

July 11, 2022.