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TMI Blog2017 (11) TMI 2067X X X X Extracts X X X X X X X X Extracts X X X X ..... of K. Veeraswami v. Union of India [ 1991 (7) TMI 368 - SUPREME COURT ] 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hit Kumar Singh, Adv., Mr. Abhimanue Shrestha, AOR, Mr. Kartik Seth, Adv., Mr. Divyesh Pratap Singh, Adv., Ms. Rani Mishra, Adv., Mr. Jatinderpal Singh, Adv., Ms. Shruti Dutt, Adv., Mr. Suyash Srivastava, Adv., Mr. Ramesh Kumar Mishra, Adv., Mr. Raj Keshari, Adv., Ms. Pyoli, Adv., Ms. Cheryl D'souza, Adv., Ms. Neha Rathi, Adv., Ms. Amiy Shukla, Adv., Mr. Shakti Vardhan, Adv., Mr. Devesh Agnihotri, Adv., Mr. Govind Jee, Adv., Mr. O.Kuttan, Adv., For the Respondent : Mr. K.K.Venugopal, AG, For Res. No.1-UOI : Mr. Tushar Mehta, ASG, Mr. R.Balasubramanian, Adv., Mr. S.S.Shamshery, Adv., Mr. Rajat Nair, Adv., For Mr. Mukesh Kumar Maroria, AOR, For Res. No. 2-CBI : Ms. Madhavi Divan, Adv., Mr. Ayush Puri, Adv., For Mr. M.K.Maroria, AOR, For SCBA : Mr. R.S. Suri, Sr.Adv., Mr. Ajit K.Sinha, Adv., Mr. Gaurav Bhatia, Adv., JUDGMENT 1. The facts are disturbing in the instant case. By moving two successive petitions, one on Wednesday (8.11.2017) and the other on Thursday (9.11.2017), identically worded similar petitions, one by the Commission for Judicial Accountability and Reforms (CJAR) and the other by Ms. Kamini Jaiswal, Advocate of this Court, who is a member of CJAR. Both the petitio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... five Judges in the order of seniority of this Court. Having regard to the importance of the matter, we also deem it appropriate that the matter be listed on Monday, the 13th November, 2017. Having regard to the nature of the case, it is also necessary to make an interim order regarding the custody of the case diary and all the materials collected by the second respondent during the course of the investigation of the above-mentioned crime. We, therefore, deem it appropriate to direct the second respondent to produce the entire material collected by the CBI in the course of 3 the investigation of the crime and keep it in a sealed cover and produce the same before the Constitution Bench on Monday, the 13th November, 2017. Communicate this order to the second respondent forthwith. 3. In the other matter, i.e. W.P. (Crl.) No.169/2017, filed by CJAR, which was listed before a Bench presided by Hon ble A.K. Sikri, J., following order was passed by the Bench on Friday, the 10th November, 2017 : 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 befor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ation. It is further averred in the petition, that since the matter had been heard by a Bench presided over by Hon ble Chief Justice of India, propriety demands that the Hon ble Chief Justice of India ought not to deal with the present petition either on the judicial side, or even on the administrative side. Therefore, present petition can neither be heard by a Bench presided by the Hon ble Chief Justice of India, nor can it be assigned to any other Bench by Hon ble Chief Justice of India in his administrative capacity. Further, that the petitioner has not made any representation to the respondent; because of the extreme urgency in the matter, the writ petition has been filed. The FIR dated 19.9.2017 has been placed on record as Annexure P1. 6. It is further averred, that the College had been granted permission on 20.8.2016 by the Oversight Committee of the Medical Council of India; on failure to fulfill certain conditions, it got debarred from admitting the students for two academic sessions i.e. 2017-18 and 2018-19 as infrastructure and other facilities were found to be deficient. W.P. (C) No.442/2017 was filed in this Court, which was connected with WP (C) No.411/2017 in which a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fication 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. 9. There was an order passed by a Bench consisting of Hon ble A.K. Sikri, J. on 10.11.2017 that the matter be placed before Hon ble Chief Justice of India for listing the matter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 10. A Constitution Bench of this Court held that what has been laid down in Prakash Chand (supra) would apply proprio vigore as regards the power of the Hon ble Chief Justice of India. Though the Hon ble Chief Justice is the first among equals as far as the roster is concerned, the Hon ble Chief Justice of India has the prerogative to constitute the Benches of the Court and allocate cases to the Benches so constituted. Following observations have been made by the Constitution Bench of this Court : 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d 18.9.2017, he should recuse from the matter. No written application has been filed for his recusal from hearing. Ms. Kamini Jaiswal has also submitted certain points for consideration in writing in which, it has been urged, that the whole intention and objective of the petition was, and is, to protect the independence, integrity and reputation of the Institution, the Supreme Court, by seeking constitution of SIT headed by retired Chief Justice of India. Further, not even a single allegation has been made against any member of the judiciary, leave alone the Hon ble Chief Justice of India or any Supreme Court Judge. Explanation has been given as to how a member of CJAR could file a petition even when her organization had filed a similar petition before; submitting that a member of the organization is entitled to exercise right separately in her own right to file a petition separate from the organization. Further, that Article 144 of the Constitution renders it impermissible for a different Bench of the Supreme Court, even if it is a Bench of the Hon ble Chief Justice of India, to overrule an order passed by another Bench of the Supreme Court, as orders passed by the Supreme Court a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... refused. [ In Scott v. Stansfield (3 Law Reports, Exchequer, 220), a judge of a county court was sued for slander, and he put in a plea that the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the plaintiff was defendant. To this plea a replication was filed, that the words were spoken falsely and maliciously, and without any reasonable, probable, or justifiable cause, and without any foundation whatever, and not bon a fide in the discharge of the defendant's duty as judge, and were wholly irrelevant to the matter before him. To the replication the defendant demurred; and the Court of Exchequer held the demurrer well taken. 'I am of opinion,' said the Chief Baron, 'that our judgment must be for the defendant.The question raised upon this record is whether an action is maintainable against the judge of a county court, which is a court of record, for words spoken by him in his judicial character, and in the exercise of his functions as judge in the court over which he presides, where such words would as against an ordinary individual constitute a cause of action, and where they are alleged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... int of view while its case was heard by a Constitution Bench of this Court, in that they have opposed filing of such petitions. That petition brings disrepute to this Court, and it was a contemptuous act. Their stand was that, such petition ought not to have been preferred and, action be taken against the concerned individuals. 15. Firstly, we consider the question whether we can hear the matter as the Bench has been formed by Hon ble Chief Justice of India in exercise of his administrative power. That issue stands concluded by the decision of 5-Judge Bench of this Court. The Constitution Bench of this Court has clearly held that Hon ble Chief Justice of India is the master of the roster, and any order which had been passed contrary to the order of the Constitution Bench, was held to be ineffective in law, not binding on the Hon ble Chief Justice of India. The Hon ble Chief Justice of India has constituted a Bench on administrative side after the aforesaid decision of this Court in which, this precise question, as to the competence of the Chief Justice to constitute a Bench, has been decided; as such, the submission made by Shri Shanti Bhushan, learned senior counsel, is hereby rej ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... um hunting. There was absolutely no urgency in the matter to make the mention again by filing the petition on 9.11.2017 itself. They wanted the matter not to be heard by another Bench of this Court presided by Hon ble A.K. Sikri, J. Reasons were asked for by us as to why two petitions were filed. Shri Prashant Bhushan, learned counsel has explained the filing of second petition thus : that the Registry had informed him that the matter was not to be listed before Court No.2 on Friday, but before Hon ble A.K. Sikri, J., as per the administrative instructions of Hon ble Chief Justice of India. Therefore, fresh petition was filed by Ms. Kamini Jaiswal. This could not have been the valid reason to file a fresh writ petition identically worded as suggested by Shri Prashant Bhushan, learned counsel appearing on behalf of the petitioner though Ms. Kamini Jaiswal, learned counsel, in the written note, which she has submitted after hearing was over, has tried to explain that a member of an organization is entitled to exercise her right to file a petition separately from the organisation. Be that as it may. Even if petition could have been filed, being, arguendo, within the right of a member ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 3 Judges. Scandalous averments were made in the petition against the Hon ble Chief Justice of India. The second writ petition was also dismissed and, thereafter, this Court issued a show cause notice after dismissing the writ petition as to why contempt proceedings should not be initiated against him, as the persistent contumacious conduct of the petitioner had been to scandalize the court. It was submitted by the petitioner that contempt could not be initiated as the constitution of the Bench by the Chief Justice of India was in violation of principles of natural justice as no one can be a Judge in his own cause. The often cited proposition that, Justice should not only be done but should manifestly and undoubtedly seem to have been done, and that nothing is to be done which creates a suspicion that there has been improper interference in the course of justice, had been raised by the petitioner in an unsuccessful attempt to take refuge under these propositions for his conduct. In spite of the objection Hon ble Chief Justice of India not to constitute a Bench, the Chief Justice of India chose to constitute a Bench, with the Hon ble Chief Justice himself as the presiding Judge. Acc ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of the Court recorded by the staff, it was recorded that the Solicitor General for India appeared in the Court in his official capacity. Shri Dipankar Gupta as Solicitor General or in personal capacity obviously acted as amicus on behalf of the Court. Being the Solicitor General for India, he was directed to have consultation with Government Departments and to obtain needed information. In appropriate cases this procedure is usually adopted by the Court. Recording of the proceedings by the Court generally is not noted by the Court. Is it improper for the Chief Justice to hear the case? Was the dismissal totally unjust and unfair for not recording the reasons? The petitioner obviously with half-baked knowledge in law mixed up the language as improper for Chief justice of india to hear it , Dismissal of the grouse of the petitioner was totally unjust, unfair, arbitrary and unlawful, flagrant violation of mandate of Article 14 , Violation of the sacred oath of office and to declare Justice A.M. Ahmadi unfit to hold the office as Chief justice of india . When these imputations were pointed out to the petitioner by a three-Judge Bench presided over by brother Verma, J. while dismissin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... h of which he is a member, it is his own personal volition. The Chief Justice s prerogative to constitute benches and assignment of judicial business would not hinge on the whim of a litigant. 27. The decisions of different benches are the decisions of the Court. For the convenient transaction of business, the senior Judge among the members composing the bench gets the privilege to preside over the bench but the decision is that of the Court. The members composing the bench collectively speak for the Court and would bear collective responsibility for the decision unless separate opinions are expressed by individual members composing the bench. Majority opinion is the law as envisaged under Article 145(5) of the Constitution. Their opinion or order thus is the opinion or order of the Court. The minority opinion also would form part of the judgment or order but remains the minority view. The Chief Justice is first among the colleagues. 52. Omission to record reasons, according to the petitioner, is violative of the principles of natural justice. The Chief justice of india has committed impropriety in deciding the matter. As stated earlier, the decision is that of the Bench on behalf ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Chief Justice of India was directly involved in appointment of additional Judges or extension of their tenure as additional Judges or their transfer. The Chief Justice of India reclused himself from the Bench; resultantly, the senior most puisne Judge came to preside over that Bench. Thus, the contemnor has committed the contempt of this Court under Article 129 of the Constitution. 21. This Court has also laid down in Dr. D C Saxena (supra) that it was the duty of the Chief Justice to assign judicial work to brother Judges. By doing so, he did not become a Judge in his own cause. It is contempt to imply that the Chief Justice would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that the Judges would be so amenable to comply that the Bench which heard the second writ petition could not have heard it. This Court has laid down these allegations aimed at bringing the administration of justice in disrepute. This Court has observed : 81. It is the duty of the Chief Justice of a court to assign judicial work to his brother Judges. It was, therefore, the duty of the respondent to assign the second writ petition to a Bench to hear it. By doi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lves 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t of mudslinging against the advocates, Supreme Court and also against the other constitutional institutions indulged in by an advocate in a careless manner, meaningless and as contradictory pleadings, clumsy allegations, contempt was ordered to be drawn. The Registry was directed not to entertain any PIL petition of the petitioner in future. 24. In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, this Court observed that there could be ways in which conduct and action of malefactor was professional misconduct. The purity of the court proceedings has to be maintained. The Court does not only have the right but also an obligation to protect itself and can bar the malefactor from appearing before the Court for an appropriate period of time. There is a duty cast upon an Advocate to protect the dignity of this Court not to scandalize the very institution as observed in the said decision. 25. In Leila David v. State of Maharashtra (2009) 10 SCC 337 this Court observed that making of scandalous remarks against High Court Judges and seeking their punishment on the allegation of their being party to genocide petition was dismissed and incumbent was punished. Scandalous allegation cannot b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... v. Govt. (NCT of Delhi). The respondent mother of a young child had filed a petition for a writ of habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for a writ of habeas corpus and obtained the necessary relief. Notwithstanding this, this Court did not interfere with the order passed by the Delhi High Court for the reason that this Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of the child granted by the Delhi High Court to the respondent mother was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping. 149. In Arathi Bandi v. Bandi Jagadrakshaka Rao this Court noted that jurisdiction in a court is not attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by one of the parties to the dispute to confer jurisdiction on a particular High Court. This was frowned upon by this Court by observing that to allow the assumption of jurisdiction in created circumstances would ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng a minor change in the prayer clause of the petition. In Udyami Evam Khadi Gramodyog Welfare Sanstha v. State of U.P. it was noticed by this Court that four writ applications were filed by a litigant and although the prayers were apparently different, the core issue in each petition centred round the recovery of the amount advanced by the bank. Similarly, substituting some petitioners for others with a view to confer jurisdiction on a particular court would also amount to forum shopping by that group of petitioners. 154. Finally and more recently, in Supreme Court Advocates-on-Record Assn. v. Union of India (Recusal Matter) Khehar, J. noticed yet another form of forum shopping where a litigant makes allegations of a perceived conflict of interest against a Judge requiring the Judge to recuse from the proceedings so that the matter could be transferred to another Judge. 155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis- -vis the litigation and the litigant. What has to be seen is whether there is any functional similarity in the proceedings between one court and another or whether there is some sort of subterfug ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 whatsoever by way of filing the petition which was wholly scandalous and ought not to have been filed in such a method and manner. It is against the settled proposition of law. 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). 30. Submission was also made that unprecedented hearing was done on Friday by a Constitution Bench of this Court. It was a fait accompli and circumstances compelled hearing on 10.11.2017 as on Thursday in this case, order was passed bypassing the power of Hon ble Chief Justice of India to constitute a 5- ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ng that too involving senior lawyer of this Court. Such conduct tantamounts wholly unethical, unwarranted and nothing but forum hunting, as discussed by this Court in the case of Cipla (supra) . 31. On behalf of the petitioner for recusal of Hon ble A M Khanwilkar, J., reliance has been placed on the decision in Ranjit Thakur v. Union of India Ors. (1987) 4 SCC 611 in which it has been laid down that reasonableness of the apprehension or bias in the mind of the party has to be seen. We find that there is no room for the petitioner to infer the bias. There is no reasonable basis to pray for recusal of Hon ble A.M. Khanwilkar, J. In our opinion that tantamount to contempt of court and an attempt at forum hunting. Reference has also been made to the decision in Supreme Court Advocates on Record Association v. Union of India (2016) 5 SCC 808 in which maxim nemo judex in causa sua has been considered, that no man is to be judge in his own cause, should be held sacred and that maxim is not to be confined to a case in which he is a party but applies to a cause in which he has an interest. It is far fetched and too tenuous to submit that any Judge of this Court much less Hon ble A.M. Khanw ..... X X X X Extracts X X X X X X X X Extracts X X X X
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