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. 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. 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.
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(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.
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. 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. 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. 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 person.
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. 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. 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.
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. (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. Perry Kansagra in contempt jurisdiction: – i)
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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. Perry Kansagra is at liberty to file response to the proceedings on or before 22TM February, 2022, with advance copy to the other side.” 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. 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. 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.
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. 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 decision dated 28.10.2020 without any demur and in letter and spirit.
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”. Supressing the order dated 21.05.2021 passed by the Kenyan High Court – No 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 09.08.2021 to place additional documents or with documents filed on 11.08.2021. 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. 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.
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.” Hadkinson, 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), 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 Panjwani. 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.
Mathur are on the point whether tendering of affidavits and undertakings containing false statement would amount to criminal contempt or not. Union of India which had considered some of the previous decisions of this Court on the point: 15. 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.
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. 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”. In fact, such an applicant requires to be dealt with for contempt of court for abusing the process of the court.” In Dhananjay Sharma v.
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 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 Aditya.
List the matter on 22.07.2022 at 3.00 pm.
Case Title: IN RE PERRY KANSAGRA Vs. . (2022 INSC 706)
Case Number: SMC(C) No.-000003 / 2021
