CJI gets to decide who hears case even if charge against him:SC

Mangalore Today News Network

New Delhi, Nov 15, 2017 : Moving to end a raging courtroom debate over a plea seeking an SIT probe into alleged judicial corruption in a case involving a blacklisted Lucknow medical college, the Supreme Court dismissed the petition Tuesday, saying the CBI FIR in the matter was not against any sitting judge of the court.

 

The controversy, a three-judge bench ruled, also settled the legal position that the Chief Justice of India (CJI) alone had the power to assign a case to a bench even if there were allegations against him in the matter.

Dismissing a plea by advocate Kamini Jaiswal, the bench of Justices R K Agrawal, Arun Mishra and A M Khanwilkar said: “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.”

Stating that the petition itself was forum-shopping and its contents amounted to contempt of court, the bench, however, said it was not initiating contempt proceedings against petitioner Jaiswal or her counsel Prashant Bhushan.

The court said the two petitions filed to seek an SIT probe — the second petition was by NGO Campaign for Judicial Accountability and Reforms (CJAR) — had brought the “entire judicial system… unnecessarily…into disrepute for no good cause or reason whatsoever”. It wondered how the petitioners had “presumed that there is an FIR lodged against any public functionary”.

The bench said “instant petitions as filed are a misconceived venture inasmuch, as the petitioner wrongly supposes that investigation involves higher judiciary, i.e. this court’s functionaries are under the scanner in the aforesaid case… 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 jeopardised. No judge can be held responsible for what may or has happened in the corridors or for ‘who purports to sell them’.”

The judgment said it was “highly improper” for the petitioner to allege conflict of interest in the petition and say that CJI Dipak Misra should not hear it on the judicial side or allocate the matter on the administrative side. “It appears that in order to achieve this end, the particular request has been made by filing successive petitions a day after the other and prayer was made to avoid the Hon’ble CJI to exercise the power for allocation of cases which was clearly an attempt at forum hunting and has to be deprecated in the strongest possible words.” Making such “scandalous remarks also tantamount to interfering with administration of justice…,” it said.

The petition had demanded an SIT probe into case in which former Orissa High Court judge I M Quddusi was arrested along with five others on September 21 by the CBI. The case, according to the CBI, was one of alleged corruption involving the Lucknow-based Prasad Institute of Medical Sciences which was trying to get relief from courts after being placed on a government blacklist.

The CBI claimed Quddusi and others were involved in deals to try and secure favourable orders from courts. In its FIR, the CBI alleged that promoters of the medical college, one of 46 barred by the government from admitting students for two years, had approached Quddusi who had promised relief from courts, including the Supreme Court, with bribes to influential people.

During the hearing, the petitioners had demanded that a three-judge bench, headed by CJI Dipak Misra, had in the past dealt with the case of the Prasad Education Trust which runs the Lucknow college and, therefore, propriety demanded that he stay away from taking any judicial or administrative decision related to the matter.

“As a matter of fact, this controversy has been set at rest that even when there is an allegation against Hon’ble CJI, it is he, who has to assign the case to a Bench, as considered appropriate by him”, the three-judge bench said. This was laid down in the order of the five-judge Constitution Bench on November 10 and in the 1996 matter Dr D C Saxena vs Chief Justice of India wherein it was held that “it was the duty of the Chief Justice to assign judicial work to brother judges” and that “by doing so, he did not become a judge of his own cause”. Tuesday’s order recalled that in the Saxena case, it was held: “It is contempt to imply that the Chief Justice would assign it to a bench which would not pass an order adverse to him.”

The three-judge bench rejected the contention that it should not have heard the case since a judicial order, by a two-judge bench of Justices J Chelameswar and S Abdul Nazeer, had directed that it be heard by a Constitution Bench of five most senior judges of the court. It said the November 10 order by a five-judge Constitution Bench that the CJI was the master of the roster and he alone had the power to constitute benches and allocate work had “rendered ineffective” any decision to the contrary.

The three judges also dismissed arguments of senior advocate Shanti Bhushan that Article 142 gave the court of Justice Chelameswar the power to come out with the November 9 order and Article 144 of the Constitution made it binding even on the CJI. “As a matter of fact, there is no question of applicability of Article 144 or 142 in this case. In case they are attracted, it is the decision of the Constitution Bench that is binding on all…,” the judges said. On the submission that “unprecedented hearing” was done on November 10 by the five-judge Constitution Bench, the three-judge bench said “it was a fait accompli and circumstances compelled hearing on November 10 as on Thursday (November 9) in this case, order was passed bypassing the power of the Hon’ble CJI”. There was no working day after November 10 and as such the question whether cases can be allotted by judicial order had to be settled that day itself, it said. “The cases cannot be assigned by judicial order. Such judicial order is to be simply ignored as it is not open to the judges to decide which matter is to be heard by whom as laid down by Constitution Bench,” the three judges said.

The order also “deprecated” the contention of the petitioners that Justice Khanwilkar, who was on the three-judge bench, must recuse from the case since he too was part of the bench that heard the Prasad Trust matter in the past. “There is no reasonable basis for this prayer…”, it said, adding this also “tantamount to contempt of court and forum shopping”.

The court said “though it is true that no one is above the law, no person in the higher echelons is above the law, but at the same time, it is the duty of both the Bar and the Bench to protect the dignity of the entire judicial system”.

“We find that filing of such petitions and the zest, with which it is perused, has brought the entire system in the last few days to unrest. An effort was made to create ripples in this court; serious and unwanted shadow of doubt has been created for no good reason by way of filing the petitions which was wholly scandalous and ought not to have been filed in such a method and manner,” the three-judge bench said.

Reacting to the order, Prashant Bhushan later tweeted: “CBI registers FIR saying that a medical college has conspired and collected money to pay bribes to SC for favourable judgement. SC bench says there’s no allegation in FIR against judges and PIL filed for SIT monitored by top judges of Court is frivolous and amounts to contempt of court.”


courtesy:Indian Express