New Delhi: Amid continuing confusion and drama over his whereabouts, Calcutta high court judge Justice C.S. Karnan moved the Supreme Court through his lawyer on Thursday to seek a recall of the top court’s May 9 order that ordered him jailed for six months on contempt charges.

The SC agreed to hear the plea, but did not give a date for hearing, the latest in an extraordinary tussle in India’s higher judiciary playing out over the past four months.

When his lawyer Mathews Nedumapara made a mention before a bench that Justice Karnan has filed an application to recall the order, Chief Justice J.S. Khehar asked about the judge’s whereabouts. The counsel said he was in Chennai. But the police has been unable to trace him there.

Justice Karnan travelled to Chennai from Kolkata hours before the SC order, stayed in a guesthouse, but has not been seen after that.

Earlier in the day, Justice Karnan’s legal adviser W. Peter Ramesh Kumar said he might have crossed the border to Bangladesh or Nepal with plans to approach the President for relief.

Lawyer Mathews Nedumapara said Justice Karnan signed an affidavit before a notary on Wednesday, and produced the vakkalatnama’s copy before the bench.

The controversy started in January when Justice Karnan wrote to PM Narendra Modi levelling corruption charges against certain judges. The top court relieved him of judicial and administrative works and later asked him to undergo a mental examination, but he refused to comply.

In his petition Justice Karnan said on Thursday that the entire proceeding from February 8, when a contempt notice was issued by the CJI, culminating in his conviction and sentence, was without jurisdiction.

The HC judge said that from a mere reading of the provisions of the Contempt of Courts Act, it is manifest that what could constitute a criminal contempt is any “publication” which scandalises, or tends to scandalise, or lowers or tends to lower the authority of, any court.

He said there was a distinction between the words “court” and “judge”. A Judge is not a court, though without a judge there could be no court. In addressing the letter in question to the Prime Minister and bringing to his notice certain alleged corrupt practices by some judges, the petitioner did not commit any contempt, the plea said.

Justice Karnan said the allegations are against the judges and not against any court, neither the high court of Madras nor the Supreme Court. If the said allegations are untrue, they would at the most amount to defamation, he said.

Under the laws of the land, the judges named in the said letter have every right to proceed against the petitioner under the civil and criminal laws, he said.

However, none of them chose to do so for reasons better known to them, he said. He contended that under the constitutional scheme, high courts are not subordinate to the Supreme Court; high courts are as much independent as the Supreme Court is, though their orders could be judicially challenged in the Supreme Court, the latter being a court of appeal.

The petitioner, a judge of the high court of Calcutta, is not under any disciplinary jurisdiction of either the CJI or the bench of seven judges constituted by the CJI, the plea said.  

He said he could be removed from office only by an order of the President passed after an address by each House of Parliament supported by a majority of the total membership of that House and by a majority of not less than two-thirds of the members of that House present and voting has been presented to the President in the same session for such a removal on the ground of proven misbehaviour or incapacity.

The May 9 order sending him to jail for six months was passed in his absence, he pointed out and sought a declaration that the contempt notice issued on February 8 is void and to recall the order and as an interim measure stay of all proceedings pursuant to the notice.