CAMPAIGN FOR JUDICIAL ACCOUNTABILITY AND REFORMS Vs. UNION OF INDIA AND OTHERS

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Date of judgment:
01/12/2017
Case Number:
WRIT PETITION (CRIMINAL) No. 169 of 2017, decided on December 01, 2017
Reference No:
2017SCLT1948
Hon'ble Judges:
R.K. AGRAWAL, ARUN MISHRA, A.M. KHANWILKAR

ORDER

1. By means of the present writ petition (public interest litigation) (PIL), the petitioner, Campaign for Judicial Accountability and Reforms, through its Secretary, has approached this Court seeking a writ of mandamus or any other writ or direction of similar nature to constitute a Special Investigation Team (SIT) headed by a retired Chief Justice of India to investigate in the matter of alleged conspiracy and payment of bribes for procuring favourable order in a matter pending before this Court and take consequential actions thereafter along with a direction to the Central Bureau of Investigation (CBI) to hand over all the materials/evidence collected so far in the FIR bearing No. RC10(A)/2017-AC.III, New Delhi to the SIT to be constituted by this Court.

2. We have heard Shri Prashant Bhushan, learned counsel for the petitioner and Mr. K.K. Venugopal, learned Attorney General appearing for the Union of India.

3. Shri Prashant Bhushan, referring to the FIR dated 19.09.2017 filed by the CBI, New Delhi submitted that in the FIR names of various persons have been mentioned as suspected accused along with other unknown public servants and private persons. According to him, the aforesaid FIR has been lodged regarding some criminal conspiracy for getting a matter pending before this Court settled. He thus submitted that one does not know how many public and private persons are involved in it and the matter relates to huge gratification for inducing public servants in a matter pending before this Court. He, however, emphasized that the purpose of filing this petition is not to name any Judge of this Court but to protect the independence of the judiciary and in order to arrive at an impartial investigation, this Court may appoint a SIT headed by a retired Chief Justice of India.

4. Learned Attorney General for India, on the other hand, submitted that the petitioner is abusing the process of court and this very issue, in an identical writ petition, being No. W.P. (Crl.) No. 176 of 2017 titled Kamini Jaiswal vs. Union of India and Another has been considered and the writ petition has been dismissed by this Court on 14.11.2017. Therefore, the present writ petition is also liable to be dismissed on this ground alone.

5. We have given our thoughtful consideration to the various pleas raised by learned counsel for the parties and we find that in Kamini Jaiswal (supra)¸ this Court had considered the similar plea raised by Shri Prashant Bhushan and had dealt in detail vide judgment and order dated 14.11.2017. For ready reference, the reliefs, the facts as also the findings recorded by this Court in Kamini Jaiswal (supra) in paragraph Nos. 4, 7, 8, 22 and 29 are reproduced below:-

“4. In the writ petitions, a prayer has been made to constitute a Special Investigation Team (SIT), headed by retired Chief Justice of India, to investigate the offences arising out of FIR being RC.10(A)/2017-AC. III dated 19.9.2017 recorded at New Delhi by the CBI and those connected therewith and take consequential action thereafter in accordance with law. A prayer was also made to direct the CBI, to produce before this Court for its perusal and, preserve and protect, all evidences/materials collected so far and hand over all the materials/evidences collected so far in the FIR to the SIT to be constituted by this Court.

7. On 19.9.2017, an FIR was registered against the following persons in connection with the case :

(i) Shri I.M. Quddusi, retired Judge of the High Court of Odisha.

(ii) Smt. Bhawana Pandey r/o GK. New Delhi (private person)

(iii) Shri B.P. Yadav (private person)

(iv) Shri Palash Yadav (private person)

(v) Shri Sudhir Giri (Private person)

(vi) Shri Biswanath Agrawala, r/o HIG – 136, Phase 1, Kanan Vihar, Bhubaneshwar, Odisha (Private person)

(vii) Other unknown public servants and private persons.

8. It was alleged in the FIR, that Mr. B.P. Yadav had requested Justice I.M. Quddusi and Smt. Bhawana Pandey to get the matter settled in the apex Court through their contacts. They engaged Mr. Biswanath Agarwala, a private person and a resident of Bhubaneswar, Orissa for getting the matter settled in the apex Court. Mr. Biswanath Agrawala claimed that he would get the matter favourably settled. He demanded huge gratification for inducing the public servants by corrupt and illegal means. Further, that Mr. B.P. Yadav, Mr. Palash Yadav, Justice I.M. Quddusi, Mrs. Bhawana Pandey and Mr. Sudhir Giri were all likely to meet Mr. Biswanath Agrawala for delivering the agreed illegal gratification at Delhi shortly. The FIR was recorded on 19.9.2017 whereas this Court had already disposed of the matter on 18.9.2017. It is averred in the petition that the case discloses commission of offence punishable under section 8 of the Prevention of Corruption Act, 1988 and section 120B of the IPC against the named persons as well as against the unknown public servants and private persons. It is further averred in the petition that since the matter involves persons placed at the highest echelons of power including justice delivery system and in subsequent raids made by the CBI it has recovered close to Rs.2 crores in cash, the agency has seized Rs.1 crore which the Hawala operator had handed over to an aide of the retired Judge I.M. Quddusi.

22. The submissions so raised, and averments so made, in this petition, and the entire scenario created by filing of two successive petitions, are really disturbing a lot. The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary. There is an averment made in the writ petition that it is against the highest judicial functionaries; that FIR has been recorded. We do not find reflection of any name of the Judge of this Court in the FIR. There is no question of registering any FIR against any sitting Judge of the High Court or of this Court as it is not permissible as per the law laid down by a Constitution Bench of 5 Hon’ble Judges of this Court in the case of K. Veeraswami v. Union of India [(1991)3 SCC 655] wherein this Court observed that in order to ensure the independence of the judiciary the apprehension that the Executive being largest litigant, it is likely to misuse the power to prosecute the Judges. Any complaint against a Judge and investigation by the CBI if given publicity, will have a far reaching effect on the Judge and the litigant public. The need, therefore, is of judicious use of action taken under the Act. There cannot be registration of any FIR against a High Court Judge or Chief Justice of the High Court or the Supreme Court Judge without the consultation of the Hon’ble Chief Justice of India and, in case there is an allegation against Hon’ble Chief Justice of India, the decision has to be taken by the Hon’ble President, in accordance with the procedure prescribed in the said decision. Thus, the instant petitions, as filed, are a misconceived venture inasmuch, as the petition wrongly presupposes that investigation involves higher judiciary, i.e. this Court’s functionaries are under the scanner in the aforesaid case; that independence of judiciary cannot be left at the mercy of the CBI or that of the police is a red herring. There cannot be any FIR even against the Civil Judge/Munsif without permission of the Chief Justice of the concerned court; and rightly, FIR has not been registered against any sitting Judge. Otherwise, on unfounded allegations, any honest Judge to the core, can be defamed, and reputation can be jeopardized. No Judge can be held responsible for what may, or has happened in the corridors, or for ‘who purports to sell whom’. The alleged actions of a retired Judge of a High Court, allegedly assuring and promising, a ‘favourable’ decision in the aforesaid circumstances of the case which was then pending before this Court, in the aforesaid circumstances and has assured favourable orders, begs the question, and we wonder, as to what favourable orders have been passed. As is apparent from the aforesaid narration of facts, there was no favourable order granted by this Court in favour of the medical college for the current academic session 2017-18, rather its inspection for considering confirmation of letter of permission for the next year 2018-19 had been ordered. The decision will be in the hands of the MCI. After decision has been rendered on 18.9.2017 by this Court, an FIR has been lodged and it appears that money was yet to be exchanged. The FIR dated 19.9.2017 reflects that Mr. B.P. Yadav, Justice Quddusi, Ms. Bhawana Pandey, and Mr. Sudhir Giri were likely to meet Mr. Biswanath Agarwala for getting favourable order at Delhi shortly; whereas this Court has already decided the mater on 18.9.2017. Thus it is a far fetched and too tenuous to even assume or allege that the matter was pending in this Court for which any bribe was to be delivered to anyone.

29. ….. Ultimately after arguing at length, at the end, it was submitted by the petitioner and her counsel that they were not aiming at any individual. If that was not so, unfounded allegations ought not to have been made against the system and that too against the Hon’ble Chief Justice of this country. In case majesty of our judicial system has to survive, such kind of petitions should not have been preferred that too against the settled proposition of law laid down by this Court in the aforesaid decisions of this Court in Dr. D C Saxena (supra) and K. Veeraswami (supra).”

6. The FIR which came for consideration in the case of Kamini Jaiswal (supra) and in this case, is the same. Further, we find that in Kamini Jaiswal (supra), this Court had noted the circumstances under which similar petition, that is, W.P. (Crl.) No. 176 of 2017 was filed by Advocate Kamini Jaiswal on 09.11.2017, i.e., immediately on the next day of the mentioning of the present petition on 08.11.2017. The facts, the relief, the submissions being same which was in Kamini Jaiswal (supra), we do not find any good ground to entertain this petition as the matter had already been decided by this Court vide judgment and order dated 14.11.2017 relevant portions of which have already been reproduced above.

7. It is also relevant to mention here that this Court in paragraph 22 in Kamini Jaiswal (supra) has raised its concern about filing of the successive writ petitions in the following words:

“22. The submissions so raised, and averments so made, in this petition, and the entire scenario created by filing of two successive petitions, are really disturbing a lot. The entire judicial system has been unnecessarily brought into disrepute for no good cause whatsoever. It passes comprehension how it was, that the petitioner presumed, that there is an FIR lodged against any public functionary. There is an averment made in the writ petition that it is against the highest judicial functionaries; that FIR has been recorded. We do not find reflection of any name of the Judge of this Court in the FIR….”

8. The petition is not only wholly frivolous, but contemptuous, unwarranted, aims at scandalizing the highest judicial system of the country, without any reasonable basis and filed in an irresponsible manner, that too by a body of persons professing to espouse the cause of accountability. What an irony of fate, the petitioner has itself forgotten its accountability and filing of such petition may entail in ultimate debarment of such petitioners from filing so-called public interest litigation which in fact has caused more injury to cause of public than subserving it.

9. In view of the foregoing discussion, we are of the considered opinion and we are constrained to say that the present petition, in particular, the manner in which it has been pursued without any remorse by questioning the decision rendered on the subject matter by this Court including the plea taken in the earlier petition as noted in paragraph 29 of the said decision, is gross abuse of the process of court. Therefore, it has to be dismissed with exemplary costs in order to ensure that such attempt is not repeated in future.

10. Accordingly, the writ petition is dismissed with cost of Rs. 25 (twenty five) lakhs to be deposited by the petitioner before the Registry of this Court within six weeks whereafter the said amount shall be transferred to Supreme Court Bar Association Advocates’ Welfare Fund.

………….

ORDER

1. Today when the matter was listed before a two-Judge Bench, comprising of Hon’ble Mr. Justice A.K. Sikri and Hon’ble Mr. Justice Ashok Bhushan, the following order was passed:-

“Mr. Prashant Bhushan, learned counsel has brought to our notice order dated 09.11.2017 passed in W.P(Crl.) No.176/2017 referring the matter to the Constitution Bench. Let the matter be placed before Hon'ble the Chief Justice for passing appropriate orders for listing this matter.

2. Mr. R.S. Suri, senior advocate/President, Supreme Court Bar Association (SCBA) submits that SCBA also wants to get itself impleaded as a party respondent and render assistance. On an oral request of Mr. Suri, the prayer is allowed and the SCBA is impleaded as a party respondent.”

3. After perusal of the aforesaid order, it was thought appropriate by the Chief Justice of India to constitute a Constitution Bench and, accordingly, the matter has been placed before us.

4. It is submitted by Mr. P.S. Narasimha, learned Additional Solicitor General, Mr. R.S. Suri, Mr. Ajit Kumar Sinha, Mr. R.P. Bhatt, Mr. Ashok Bhan, learned senior counsel, Mr. Gaurav Bhatia and Mr. Gopal Singh, learned counsel, along with other counsel that as per the judgment rendered by the three-Judge Bench in State of Rajasthan vs. Prakash Chand and Others (1998) 1 SCC 1, the Chief Justice of the High Court is the master of the roster and there is no justification not to treat the Chief Justice of India, who is the Chief Justice of the Apex Court, to have the same power. If the same principles are not followed, the institution cannot function. Our attention has also been drawn to Order VI Rule 2 of the Supreme Court Rules, 2013, which reads as follows:-

“2. Where in the course of the hearing of any cause, appeal or other proceeding, the Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief Justice, who shall thereupon constitute constitute such a Bench for the hearing of it.”

In Prakash Chand (supra), the Court stated thus:-

“From the preceding discussion the following broad CONCLUSIONS emerge. This, of course, is not to be treated as a summary of our judgment and the conclusion should be read with the text of the judgment:

(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.

(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.

(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.

(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice.

*** *** ***

(6) That the puisne Judges cannot "pick and choose" any case pending in the High Court and assign the same to himself or themselves for disposal without appropriate orders of the Chief Justice.

(7) That no Judge or Judges can give directions to the Registry for listing any case before him or them which runs counter to the directions given by the Chief Justice.”

5. Mr. Narasimha and Mr. Suri have also drawn our attention to the authority in Official Liquidator vs. Dayanand and Others (2008) 10 SCC 1, wherein it has been held as follows:-

“In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.”

6. There can be no doubt that the Chief Justice of India is the first amongst the equals, but definitely, he exercises certain administrative powers and that is why in Prakash Chand (supra), it has been clearly stated that the administrative control of the High Court vests in the Chief Justice alone. The same principle must apply proprio vigore as regards the power of the Chief Justice of India. On the judicial side, he is only the first amongst the equals. But, as far as the roster is concerned, as has been stated by the three-Judge Bench in Prakash Chand (supra), the Chief Justice is the master of the roster and he alone has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted. The aforesaid position though stated as regards the High Court, we are absolutely certain that the said principle is applicable to the Supreme Court. We are disposed to think so. Unless such a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice is stated to be the master of the roster, he alone has the prerogative to constitute Benches. Needless to say, neither a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief Justice of India as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.

7. An institution has to function within certain parameters and that is why there are precedents, rules and conventions. As far as the composition of Benches is concerned, we accept the principles stated in Prakash Chand (supra), which was stated in the context of the High Court, and clearly state that the same shall squarely apply to the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench.

8. In this context, Mr. Narasimha, learned Additional Solicitor General has drawn our attention to Article 145(2) and (3) of the Constitution. The said provisions read as under:-

“145. Rules of Court, etc.-

(1) …........…

(2) Subject to the provisions of clause (2), rules made under this article may fix the minimum number of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.

(3) The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of this Constitution or for the purpose of hearing any reference under Article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this chapter other than Article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question of law as to the interpretation of this Constitution the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion.”

9. The rules have been framed in that regard. True, the rules deal with reference, but the law laid down in Prakash Chand (supra) has to apply to the Supreme Court so that there will be smooth functioning of the Court and there is no chaos in the administration of justice dispensation system. If any such order has been passed by any Bench, that cannot hold the field as that will be running counter to the order passed by the Constitution Bench. Needless to say, no Judge can take up the matter on his own, unless allocated by the Chief Justice of India, as he is the master of the roster.

10. In view of the aforesaid, any order passed which is contrary to this order be treated as ineffective in law and not binding on the Chief Justice of India.

11. As far as the present writ petition is concerned, on merits, the matter be listed before the appropriate Bench to be allocated by the Chief Justice of India.

List the matter after two weeks.

…………

 

RECORD OF PROCEEDINGS

Writ Petition (Criminal) No.169/2017

CAMPAIGN FOR JUDICIAL ACCOUNTABILITY AND REFORMS

Vs.

UNION OF INDIA AND ANOTHER

Date : 10-11-2017 This petition was called on for hearing today.

CORAM :

HON'BLE THE CHIEF JUSTICE

HON'BLE MR. JUSTICE R.K. AGRAWAL

HON'BLE MR. JUSTICE ARUN MISHRA

HON'BLE MR. JUSTICE AMITAVA ROY

HON'BLE MR. JUSTICE A.M. KHANWILKAR

For Petitioner(s)

Mr. Prashant Bhushan, AOR,

For Respondent(s) Mr. P.S. Narasimha, ASG, Mr. R.S. Suri, Sr. Adv., Mr. Ajit Sinha, Sr. Adv., Mr. P.P. Khuran, Sr. Adv., Mr. Ashok Bhan, Sr. Adv.

Mr. Aman Sinha, Sr. Adv., Mr. Anukul Pradhan, Sr. Adv., Mr. Gaurav Bhatia, Adv., Mr. Rahul Kaushik, Adv., Mr. Meenesh Dubey, Adv.

Ms. Divya Roy, Adv., Mr. Umesh Babu C., Adv., Ms. Purnima Johari, Adv.

UPON hearing the counsel the Court made the following

ORDER

1. In terms of the signed reportable order, let the matter be listed before the appropriate Bench to be allocated by the Chief Justice of India.

…………