IN RE: PERRY KANSAGRA versus IN RE: PERRY KANSAGRA on 11 July 2022

Conclusion

1. The facts and circumstances leading to the recall of theJudgment dated 28.10.2020 and the Order dated 08.12.2020 and issuanceof notice for initiation of contempt proceedings against the allegedcontemnor Perry Kansagra (hereinafter referred to as Perry) were dealtwith in sufficient detail in paragraphs 1 to 33 of the Order dated 7.10.2021passed by a bench of three judges of this Court in MiscellaneousApplication No.1167 of 2021 in Civil Appeal No.3559 of 2020. For G

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Aavoiding repetition of the basic facts, paragraphs 1 to 33 of said Orderdated 7.10.2021 be read as part of this Order.

2. After discussing the relevant facts and circumstances inaforesaid paragraphs 1 to 33, paragraphs 34 to 36 of the Order dated7.10.2021 set out the essential features of the matter as under:- B

“34. The documents and the developments referred to hereinaboveshow:-

(i) Perry had given an unequivocal undertaking to the High Courtthat he would submit to the jurisdiction of the Indian Courts. Hehad also given a solemn undertaking to this Court that he wouldcomply with the Order dated 28.10.2020 in addition to the Judgmentdated 28.10.2020.

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(ii) In response to a specific submission raised in MiscellaneousApplication No.2140 of 2020 (quoted in paragraph 16 hereinabove),it was submitted by Perry that he had subjected himself to thejurisdiction of this Court. While dealing with the rival submissionsin the Order dated 8.12.2020, this Court made it clear that theundertaking given by Perry to the High Court would continue tobe operative, in addition to the undertaking given to this Court.

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(iii) The Judgment dated 28.10.2020 had called upon Perry toobtain a Mirror Order’ from the concerned Court in Nairobi toreflect the directions contained in the Judgment dated 28.10.2020.Thereafter, the Order dated 9.11.2020 passed by the High Courtof Kenya at Nairobi along with the relevant application moved byPerry seeking registration of the Judgment dated 28.10.2020, wasfiled in this Court.

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(iv) There was a dispute whether the registration granted videorder dated 9.11.2020 by the High Court of Kenya at Nairobiamounted to fulfilling the requirement of a “Mirror Order’. Thesubmissions on the point were dealt with in paragraphs 8 and 9 ofthe Order dated 8. 12.2020. The learned counsel appearing forPerry had relied upon the opinion given by M/s. GMC Advocateswhich in turn had relied upon the decision of the High Court ofKenya at Nairobi in Re: Matter of I W P (Infant) [2013] eKLR tosubmit that the registration itself was a “Mirror Order” incompliance of the requirements of the Judgment dated 28.10.2020.

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Relying on the submissions so advanced on behalf of Perryand in deference to the Order dated 9.11.2020 passed by the HighCourt of Kenya at Nairobi, in paragraph 10 of the Order dated8.12.2020, this Court observed that the registration of the Judgmentof this Court by the High Court of Kenya at Nairobi was sufficientcompliance of the directions to obtain a “Mirror Order” issuedfrom a Competent Court in Kenya.

(v) The Judgment dated 28.10.2020 and the Order dated 8.12.2020passed by this Court were thus premised on the submission thatthe Order dated 9.11.2020 passed by the High Court of Kenya atNairobi while registering the Judgment dated 28.10.2020 passedby this Court was in fact the “Mirror Order’.

(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 orderobserved that the judgment of this Court was not registrable anddismissed the Originating Summons dated 30.10.2020 filed byPerry.

(vii) At no stage Perry brought this development to the notice ofthis Court that the Originating Summons moved by him seekingregistration of the Judgment dated 28.10.2020 passed by this Courtwas dismissed by the High Court of Kenya at Nairobi on 21.5.2021.Having submitted to the jurisdiction of the Indian Courts it wasthe bounden duty of Perry to keep this Court appraised of all thedevelopments particularly when the “Mirror Order” was thefulcrum on the basis of which this Court handed over to him thecustody of Aditya.

(viii) This infraction gets more pronounced in the light of the standtaken in his Affidavit dated 5.8.2021 filed in this Court and referredto in Paragraph 22 hereinabove. In that affidavit Perryunequivocally stated that he had not even the remotest intentionto disobey the Order passed by this Court including the Judgmentdated 28.10.2020. Yet, something as basic and fundamental likethe Order dated 21.05.2021 was not brought to the notice of thisCourt. Logically, Perry should have brought back Aditya to thiscountry so that status quo ante could be restored and appropriateorders could thereafter be passed by this Court.

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(ix) Miscellaneous Application No.1167 of 2021 filed by Smritihad annexed e-mails exchanged between her and Perry and prayedthat Perry be directed to comply with directions regarding vacationaccess. In response, apart from stating that he had no intentionsto disobey the orders passed by this Court, Perry voiced concernabout sending Aditya to India. Being well aware of the conditionsin this Country, a solution was devised by this Court in its Orderdated 11.08.2021 and certain directions to facilitate the entry ofAditya into and his exit from India in a safe manner were issued.Pertinently on 11.08.2021, the attention of this Court was not invitedto the fact that the Situational Report dated 09.08.2021 as referredto hereinabove was made or that the matter was being lookedinto by the concerned authorities in Kenya.

(X) Despite clear directions issued in the Order dated 11.08.2021Perry had not taken any steps to comply with the Order. As amatter of fact, by the time the matter was taken up for furtherhearing on 16.08.2021, Perry sought to withdraw the authorizationin favour of the learned counsel who were all the whilerepresenting him before this Court.

(XI) As disclosed in I.A. 100550 of 2021 week-end Skypemeetings between Smriti and Aditya were not facilitated from theweek-end of 14.08.2021 and 15.08.2021. Perry also blocked allmeans of communications with Smriti. Though in law the learnedadvocates who had entered appearance on behalf of Perry wouldcontinue to represent him, notice was additionally directed to beserved on Perry through Indian embassy of Nairobi.

(XII) In the light of the defiant attitude exhibited by Perry and hisrefusal to abide by the Orders passed by this court, ad-interimrelief 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 dated17.08.2021.

(XIII) Finally, Petition No.E301 of 2021 and -Notice of Motionwere moved on behalf of Perry, filed in the High Court of Kenyaat Nairobi on 26.08.2021. The stand taken by Perry in said Petitionand Notice of Motion is that it would be humiliating to compelAditya to take OCI Card; that wishes of Aditya were notascertained 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 “MirrorOrder” and in the circumstances the orders passed by this Courtare incapable of compliance and/or enforcement.

35. These developments not only show the defiant andcontumacious posture now adopted by Perry but prima faciesupport the submissions of Smriti made in Interim Applicationsreferred to in paragraphs 25, 27, and 28 herein above. Thereappears to be concrete material and reason to believe that it wasa well-planned conspiracy on part of Perry to persuade this Courtto pass orders in his favour and allow him the custody of Adityaand then turn around and defy the Orders of this Court.

36. It is fundamental that a party approaching the Court mustcome with clean hands, more so in child custody matters. Anyfraudulent conduct based on which the custody of a minor isobtained under the orders of the Court, would negate and nullifythe element of trust reposed by the Court in the concerned person.Wherever the custody of a minor is a matter of dispute betweenthe parents or the concerned parties, the primary custody of theminor, in parens patriae jurisdiction, is with the Court which maythen hand over the custody to the person who in the eyes of theCourt, would be the most suitable person. Any action initiated toobtain such custody from the Court with fraudulent conduct anddesign would be a fraud on the process of the Court.”

3. Thereafter, the relevant decisions on the point as well as thesubmissions of the learned Solicitor General, Mr. Amarjit Singh Chandhiokand Ms. Sonia Mathur, learned Senior Advocates appearing for SmritiMadan Kansagra (hereinafter referred to as Smriti) and Mr. AnunayaMehta, learned Advocate were recorded in the Order dated 7.10.2021and it was concluded: - “39. Though, at every juncture solemn undertakings were givenby Perry to the High Court and this Court, such undertakingswere not only flagrantly violated but a stand is now takenchallenging the very jurisdiction of the Indian Courts, despite havingsubmitted himself to the jurisdiction of the Indian Courts. Suchconduct, prime facie, can certainly be said to be contumaciouscalling for an action in contempt jurisdiction. Moreover, the non- A

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disclosure of material facts by Perry at the relevant juncturesalso shows that he approached the Indian Courts with uncleanhands.

40. It was only on the basis of the solemn undertakings given byPerry and the order dated 09.11.2020 passed by the High Courtof Kenya at Nairobi which was projected to be a “Mirror Order”in compliance of the directions issued by this Court, that the custodyof Aditya was directed to be handed over to Perry. Since thefalse and fraudulent representations made by Perry were thefoundation, on the basis of which this Court was persuaded tohandover custody of Aditya to him, it shall be the duty of thisCourt to nullify, in every way, the effect and impact of the orderswhich were obtained by playing fraud upon the Court. All thedecisions referred to hereinabove point in that direction. This Courtwould therefore be well within its power and justified to recall allthe orders and continue to assume jurisdiction to ensure that thesituation as it prevailed prior to the passing of the orders by theTrial Court, the High Court and this Court, gets restored, whereafterappropriate decision can be taken in parens patriae jurisdiction.

41. It is true that Aditya is now in Kenya. But he was taken toKenya only on the basis of fraudulently obtained orders from thisCourt. In our considered view, the Indian Courts which were theCourts of first contact and had complete jurisdiction over Aditya,must continue to exercise such power and jurisdiction to correctthe wrongs which occurred as a result of fraudulent conduct onpart of Perry. It may be stated here that at every juncture, welfareof Aditya was and will always continue to be the primaryconsideration for the Indian Courts. He was interviewed by verycompetent and qualified Counsellors whose reports andassessments have been part of the record. Aditya was alsointerviewed by the Trial Court, the High Court and this Court. Atno stage any mistreatment by Smriti was even remotely suggestedor adverted to by Aditya. After Aditya is brought back to thiscountry, this Court will certainly have appropriate interactions withAditya to understand his Wishes while considering his welfare.”

4. In light of the facts and circumstances, following directionswere 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 dated08.12.2020 Passed by this Court are recalled.

(B) The Guardianship Petition No.53 of 2012 filed by Perry in theDistrict Court, Saket, New Delhi seeking permanent custody ofAditya and the resultant proceedings arising therefrom includingMAT APP (F.C) No.3Q of 2018 filed in the High Court, aredismissed.

(C) the Orders granting custody having been recalled, the custodyof Aditya with Perry is declared to be illegal and ab initio void.

(D) Issue notice to Perry as to why proceedings in contemptjurisdiction be not initiated against him for having violated thesolemn undertaking given to this Court, returnable on 16thNovember, 2021. The Registry is directed to register Suo MotuContempt Case and proceed accordingly.

(E) The notice shall additionally be served through e-mail directedat r the e-mail id used by Perry in communicating with Smriti. Thedetails in that behalf shall be furnished to the Registry by Smritiwithin two days.

(F) The Central Bureau of Investigation, New Delhi through itsDirector is directed to initiate appropriate proceedings by registeringcriminal proceedings against Perry and to secure and entrust thecustody of Aditya to Smriti.

(G) The Secretary, Ministry of External Affairs, Government ofIndia, New Delhi and the Indian Embassy in Kenya are directedto ensure that all possible assistance and logistical support isextended to Smriti in securing the custody of Aditya.

(H) From and out of the amount of Rs.1 crore deposited by Perryin this Court, at this stage, an amount of Rs.25 lakhs be handedover to Smriti towards legal expense incurred or required to beincurred hereafter. Rest of the money shall continue to be kept indeposit with the Registry till further orders.”

5. Pursuant to direction (D) as stated above, the instant Suo-motoContempt Petition stands registered against Perry.

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6. In its Order dated 25.1.2022, while dealing with the instantpetition, this Court observed:

“Accordingly, the matter is listed before us today to considerwhether charges need to be framed or not. It must a stated herethat Mr. Perry Kansagra has chosen not to file any response inthe matter.

Having considered the entirety of the matter, in our view, case isdefinitely made out to proceed against Mr. Perry Kansagra incontempt jurisdiction: -

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

ii) for having acted in breach of solemn undertakings given to thecourts including this Court, and;

iii) for having obstructed the course of justice and committedcriminal contempt of Court.

The Registry is, therefore, directed to issue notice to Mr.Perry Kansagra in terms of Rules to Regulate Proceeding forContempt of the Supreme Court, 1975 in Form I appended to saidRules. The Registry is further directed to quote the relevantportions of Paragraphs 38 to 40 of the order dated 7[th] 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..PerryKansagra is directed to remain personally present on the nextdate of hearing.

In addition to the regular mode of service, the notice shallbe served in the same manner as was done on the earlier occasionand the office of the learned Solicitor General is requested to takeappropriate steps in the matter.

Mr. Perry Kansagra is at liberty to file response to theproceedings on or before 22™ February, 2022, with advance copyto the other side.”

7. Since despite being served, Perry had not appeared, followingorder was passed by this Court on 8.3.2022:

“While directing initiation of contempt proceedings andissuance of notice in Form-I appended to the Rules to RegulateProceedings for Contempt of the Supreme Court, 1975, vide orderdated 25.01.2022, notice was directed to be issued to Mr. PerryKansagra.

According to the office report, notice has been issuedthrough Ministry of Law & Justice by Speed Post on 03.02.2022as well as “through e-mail as was done on the earlier occasion”.However, the office report states that status of delivery has notbeen received from the Ministry of Law & Justice so far.

Though the office report indicates that notice was issuedthrough e-mail “as was done on earlier occasion”, for removal ofdoubts, the Registry is directed to send notice to be served uponMr. Perry Kansagra through e-mail ID from which communicationswere received on behalf of Mr. Perry Kansagra.

Ms. Sonia Mathur, learned Senior Advocate appearing forthe applicant Ms. Smriti Madan Kansagra, submits that it hasbeen four months but Ms. Smriti Madan Kansagra is unawareabout the status of proceedings initiated by the Central Bureau ofInvestigation.

We, therefore, call upon the Central Bureau of Investigationto file the Status Report before the next date of hearing. Let anappropriate intimation be sent by the Registry to the Central Bureauof Investigation.”

8. Accordingly, status report was filed by the Central Bureau ofInvestigation and the matter was taken up on 11.4.2022 when the followingorder was passed by this Court:

“Status report has been submitted by the CBI which indicatesthat Look Out Circular has already been issued by the CBI. Acopy of the report be given to Ms. Smriti Madan Kansagra.

IA No.53272 of 2022 has been filed by her seekingpermission to place on record certain additional documents. Havingconsidered the application, in our view, said documents must bemade a part of the record.

Reliance is placed by her on the order dated 9.3.2022 passedin SLP (Crl.) No.2018 of 2020, in terms of which in similar A

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circumstances, direction was issued commanding CBI to issueRed Corner Notice to secure the presence of the first respondentwho was a foreign national.

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Ms. Sonia Mathur, learned Senior Advocate prays for similardirection in the instant matter.

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Paragraph 5 of said order dated 09.03.2022 discloses thatthere was failure on part of the first respondent-husband to abideby the terms and conditions imposed by the High Court. Theobservations were made by this Court that such conduct mayinvite action in contempt jurisdiction. In so far as the instant matteri, concerned, this Court has already issued notice while exercisingcontempt jurisdiction.

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The CBI is therefore, directed to issue Red Corner Noticeto secure the Presence of Perry Kansagra. Since the minor childwas secreted away as a part of design referred to and dealt within the earlier orders, we also direct the CBI to issue Yellow CornerNotice to secure the presence of the child.

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As the earlier orders indicate, we have initiated proceedingsin contempt petition and have already given sufficient time to Mr.Perry Kansagra to respond to those notices and yet no responsehas been filed.

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We, therefore, direct the contempt petition to be listed on21.04.2022 at 03:00 pm for final disposal.”

9. We heard Ms. Sonia Mathur, learned Senior Advocate for Smritiand Mr. Rajat Nair for Central Bureau of Investigation. Mr. P. K.FManohar, learned Advocate for Perry, however declined to advanceany submissions.

10. Ms. Mathur, learned Senior Advocate highlighted the acts ofcontempt by Perry under two segments namely those prior to July, 2021and some which were after July, 2021. The acts of contempt as describedin the Notes of Arguments submitted on behalf of Smriti were:- G

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

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a. Undertaking/affidavit dated 02.08.2020 given to the DelhiHigh Court wherein he undertook to “honour and complywith the visitation rights given to Smriti” as well as undertookto “submit to the jurisdiction of the Indian Courts”.

b. Undertaking/affidavit dated 30.10.2020 filed by Perry beforethis Hon’ble Court pursuant to the judgment dated28.10.2020 that he would comply with the majority decisiondated 28.10.2020 without any demur and in letter and spirit.

c. Affidavit dated 20.11.2020 filed by Perry whichaccompanied the “mirror order” wherein Perry stated thatthe purported order dated 09.11.2020 passed by the KenyanHigh Court was a “mirror order”.

d. Perry Kansagra filed and continued to rely on the purportedmirror order dated 09.11.2020 in his reply to M.A. No. 2140/2020, Copy of affidavit of compliance dated 20.11.2020 filedby Perry and Copy of Affidavit dated 26.11.2020 in supportof the documents filed by him.

e. Affidavit dated 09.12.2020 filed by Perry in compliance ofthe order dated 08.12.2020 passed by this Hon’ble Courtwherein he state that he “shall truly and faithfully abide bythe order dated 08.12.2020”.

f. The order dated 08.12.2020 accepted the undertaking ofPerry Kansagra submitting to the jurisdiction of this Hon’bleCourt.

ii. Removing Aditya from the Indian jurisdiction on 10.12.2020based on the aforementioned false undertakings/affidavits andlegally untenable purported “mirror order”.

iii. Perry’s deliberate failure to comply with the directions toanother “mirror order” as directed in paragraph 21 (D) of orderdated 08.12.2020.

iv. As is evident from the aforementioned deliberate and wilfulconduct Petty, it is most respectfully submitted that Perrykidnapped the child from Indian jurisdiction and removed thechild from parens patriae of the Court. Perry has abused theprocess of this Hon’ble Court.

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A4. The following are the acts of contempt committed by Perrypost July, 2021.

i.Refusal to bring Aditya to India for Smriti to avail her visitationsin terms of the judgment dated 28.10.2020 and order dated08.12.2020.B

ii.Having the purported “mirror order” dated 09.11.2020 setaside by Kenyan High Court by order dated 21.05.2021.

iii.Supressing the order dated 21.05.2021 passed by the KenyanHigh Court – Not filing the said order before this Hon’bleCourt either voluntarily when the said order was passed orCwith his reply dated 05.08.2021 to MA No.1167/2021 or withhis reply dated 05.08.2021 to MA No.1167/2021 or withapplication dated 09.08.2021 to place additional documentsor with documents filed on 11.08.2021.

iv.Refusal by Perry Kansagra to get the child to India to beDinterviewed by this Hon’ble Court in terms of the order dated08.12.2020.

v.In Perry’s reply and affidavit dated 05.08.2021 to MA No.1167/2020, Perry stated that he is complying with the directionsof this Hon’ble Court passed on 28.10.2020 and 08.12.2020.E

vi.Deliberate breach of the order dated 11.08.2021, i.e. notsending Aditya to India on 13.08.2021 and not applying forAditya’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.Fwhen this Hon’ble Court had listed the matter for compliancethe orders dated 11.08.2021, 08.12.2020 and 28.10.2020, andsought 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, butGalso stopping all Skype access from 15.08.2021, therebydeliberately and wilfully breaching the orders dated 28.10.2020and 08.12.2020.

ix.Initiating proceedings before the Kenyan High Court inviolation of his aforementioned undertakings/affidavits andH

the order dated 17.08.2021 where a world-wide ad interimex-parte anti suit injunction order was passed by against Perryfrom proceeding qua the custody/guardianship of Aditya. Thetone and tenor of the Perry’s petition, affidavit and notice ofmotion are contumacious, scandalous and made in an overtattempt to lower the majesty of this Hon’ble Court.

x.Obtaining an order dated 30.08.2021 from the Kenyan HighCourt restraining Smriti from taking Aditya out of Kenya orhis custody, in violation of the orders dated 11.08.2021 and17.08.2021. Perry has deliberately sought to remove thisHon’ble Court as the parens patriae of Aditya.

xi.Perry continued and deliberate refusal to appear before thisHon’ble Court from 15.08.2020 (after he discharged hisadvocates) and blocked Smriti on all usual forms ofcommunication (email and WhatsApp).

xii. Perry’s refusing to accept the repeated attempts of the serviceof the process of this Hon’ble Court in the contemptproceedings. [elaborated in point no.6]

xiii. Perry’s continued refusal to appear before this Hon’ble Courtin person despite the order dated 18.10.2021, 01.02.2022 and16.03.2022 passed in SMC No.3 of 2021.”

11. Our attention was also invited to the decisions in a) Hadkinsonvs. Hadkinson[1], where the court held that the removal of a child by acustodial parent in violation of the orders passed by the court, wascontempt of the grossest kind; and that the contemnor would not haveany right to be heard until the child was brought back to the jurisdictionof the court; b) Regina vs. Jones (Robert)[2], where the Court of Appealheld that the applicant had waived his right to be present at the trial byhis conduct in absconding and in such circumstances, the judge had adiscretion to allow the trial to proceed in the absence of the applicant;and c) of this Court in the matter of Anil Panjwani[3]. It was thussubmitted that unless and until Aditya was brought back to the jurisdictionof this Court, Perry would not be entitled to be heard in the matter and 1 [1952] 2 All ER 5672 1972 1 WLR 8873 (2003) 7 SCC 375

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Athat the instant contempt proceedings could as well be taken to logicalconclusion in his absence.

It was further submitted that the conduct of Perry in tenderingaffidavits and undertakings containing false statements was not onlyfraudulent but also amounted to perjury and criminal contempt. TheBdecisions of this Court in Dhananjay Sharma v. State of Haryana[4],Chandra Shashi v. Anil Kumar Sharma[5]and in ABCD v. Union of India[6] were relied upon in support of the contention.

12. While considering whether the conduct of Perry was fraudulentor not, this Court had considered various decisions in paragraph 37 of itsCOrder dated 7.10.2021 whereafter it was observed that it would be theduty of this Court to nullify the effect and impact of the orders whichwere 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 relevantjunctures were also prima facie found to be contumacious. Therefore,Dthe instant proceedings in the contempt jurisdiction were initiated suomoto by this Court.

13. The first set of decisions relied upon by Ms. Mathur deal withthe rights of a contemnor or a violator to be heard until such contemnoror violator purges the contempt. Though Ms. Mathur was quite right inEher submission, we had adjourned the matter suitably on few occasionsso that adequate opportunity could be availed of by Perry and submissionson his behalf could be advanced. Even at the final hearing stage, we hadinvited Mr. P. K. Manohar, learned Advocate for Perry to advance hissubmissions which offer, however, was not availed of.

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14. The second set of decisions relied upon by Ms. Mathur are onthe point whether tendering of affidavits and undertakings containingfalse statement would amount to criminal contempt or not. At this stage,we may extract following paragraphs from the decision of this Court inABCD v. Union of India[6 ]which had considered some of the previousGdecisions of this Court on the point:

15. Making a false statement on oath is an offencepunishable under Section 181 of the IPC while furnishing false 4 (1995) 3 SCC 757

5 (1995) 1 SCC 421

H6 (2020) 2 SCC 52

information with intent to cause public servant to use his lawfulpower to the injury of another person is punishable under Section182 IPC. These offences by virtue of Section 195(1)(a)(i) of theCode can be taken cognizance of by any court only upon a propercomplaint in writing as stated in said section. In respect of matterscoming under Section 195(1)(b)(i) of the Code, in PushpadeviM. Jatia v. M.L. Wadhawan [Pushpadevi M. Jatia v. M.L.Wadhawan, (1987) 3 SCC 367 : 1987 SCC (Cri) 526] prosecutionwas directed to be launched after prima facie satisfaction wasrecorded by this Court.

16. It has also been laid down by this Court in ChandraShashi v. Anil Kumar Verma [Chandra Shashi v. Anil KumarVerma, (1995) 1 SCC 421 : 1995 SCC (Cri) 239] that a personwho makes an attempt to deceive the court, interferes with theadministration of justice and can be held guilty of contempt ofcourt. In that case a husband who had filed a fabricated documentto oppose the prayer of his wife seeking transfer of matrimonialproceedings was found guilty of contempt of court and sentencedto 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 remainunpolluted so that purity of court’s atmosphere may give vitalityto all the organs of the State. Polluters of judicial firmament are,therefore, required to be well taken care of to maintain the sublimityof court’s environment; so also to enable it to administer justicefairly and to the satisfaction of all concerned.

2. Anyone who takes recourse to fraud, deflects the courseof judicial proceedings; or if anything is done with oblique motive,the same interferes with the administration of justice. Such personsare required to be properly dealt with, not only to punish them forthe wrong done, but also to deter others from indulging in similaracts which shake the faith of people in the system of administrationof justice.

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14. The legal position thus is that if the publication be withintent to deceive the court or one made with an intention to defraud,the same would be contempt, as it would interfere with AB

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administration of justice. It would, in any case, tend to interferewith the same. This would definitely be so if a fabricated documentis filed with the aforesaid mens rea. In the case at hand thefabricated document was apparently to deceive the court; theintention to defraud is writ large. Anil Kumar is, therefore, guiltyof 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 KensingtonIncome Tax Commrs. [R. v. General Commissioners forPurposes of Income Tax Acts For District of Kensington, ex pPrincess Edmond De Polignac, (1917) 1 KB 486 : 86 LJKB 257: 116 LT 136 (CA)] is kept in mind, an applicant who does notcome with candid facts and “clean breast” cannot hold a writ ofthe court with “soiled hands”. Suppression or concealment ofmaterial facts is not an advocacy. It is a jugglery, manipulation,manoeuvring or misrepresentation, which has no place in equitableand prerogative jurisdiction. If the applicant does not disclose allthe material facts fairly and truly but states them in a distortedmanner and misleads the court, the court has inherent power inorder to protect itself and to prevent an abuse of its process todischarge the rule nisi and refuse to proceed further with theexamination of the case on merits. If the court does not reject thepetition on that ground, the court would be failing in its duty. Infact, such an applicant requires to be dealt with for contempt ofcourt for abusing the process of the court.”

18. In Dhananjay Sharma v. State of Haryana [DhananjaySharma v. State of Haryana, (1995) 3 SCC 757 : 1995 SCC (Cri)608] filing of a false affidavit was the basis for initiation of actionin contempt jurisdiction and the persons concerned werepunished.”

Thereafter, in suo moto exercise of power, proceedings in contemptjurisdiction were initiated against said petitioner.

15. It is thus well settled that a person who makes a false statementbefore the Court and makes an attempt to deceive the Court, interfereswith the administration of justice and is guilty of contempt of Court. Theextracted portion above clearly shows that in such circumstances, the Court not only has the inherent power but it would be failing in its duty ifthe alleged contemnor is not dealt with in contempt jurisdiction for abusingthe process of the Court.

16. The essential features of the matter as culled out in paragraph34 of the Order dated 07.10.2021 were relied upon to arrive at a primafacie observation that Perry was guilty of contempt of Court. Thoughnotice was issued to Perry, no response has been tendered. We find thatthe material on record clearly shows violation on part of Perry. Theobservations made in paragraph 34 of the order dated 7.10.2021 wereon the basis of record. Having considered the entirety of the matter, inour view, Perry is guilty of having committed criminal contempt of Courtapart from the contempt for violating express undertakings given to theCourts, including this Court. We accordingly hold Perry guilty under theContempt of Courts Act, 1971.

17. Though the instant proceedings can be taken to logicalconclusion and order of sentence can be awarded even in the absenceof Perry, we give final opportunity to Perry to present himself beforethis Court on 22.07.2022 at 3.00 pm along with Aditya. He shall thenhave an opportunity to advance appropriate submissions on the issue ofpunishment to be awarded to him. It shall also be open to Perry to purgehimself of contempt in which case a sympathetic view may be taken inthe matter.

Let copy of this Order be served upon Perry through email IDused by him in serving process upon Smriti. Additionally, a copy shall begiven to Mr. P.K. Manohar, learned Advocate.

18. For securing the presence of Perry and Aditya before thisCourt and for effective implementation of the Orders issued by this Court,the Union agencies including the Central Bureau of Investigation shallhave and shall exercise all the powers, not necessarily restricted to thefollowing directions issued in the Order dated 07.10.2021:

“The Central Bureau of Investigation, New Delhi throughits Director is directed to initiate appropriate proceedings byregistering criminal proceedings against Perry and to secure andentrust the custody of Aditya to Smriti.

The Secretary, Ministry of External Affairs, Governmentof India, New Delhi and the Indian Embassy in Kenya are directed A

B

C

D

E

F

G

H

226SUPREME COURT REPORTS

Ato ensure that all possible assistance and logistical support isextended to Smriti in securing the custody of Aditya.”

It must be stated here that the learned Solicitor General hadassured this Court during the hearings at the interim stages that everypossible help and assistance shall be extended by the Union agenciesBand the Indian Embassy in Kenya in securing the presence of Perry andAditya before this Court.

19. List the matter on 22.07.2022 at 3.00 pm.

Nidhi JainC(Assisted by : Tamana, LCRA)

Matter further listed.

D

E

F

G

H