#Columns: More Questions than Answers

#Columns: More Questions than Answers

Ajit Warrier

On November 14, 2017, a three Judges Bench of the Supreme Court dismissed a writ petition filed by Advocate Kamini Jaiswal seeking constitution of a Special Investigation Team (SIT) headed by a retired Chief Justice of India to investigate the offences arising out of a First Information Report (FIR) registered by the Central Bureau of Investigation (CBI) at New Delhi[1].

As per the facts recorded in the judgment, the FIR was lodged by CBI on September 19, 2017 with respect to a medical college run by Prasad Education Trust at Lucknow. It alleged commission of offences of criminal conspiracy and taking of illegal gratification to influence the outcome of a pending case involving the medical college, before the Supreme Court. According to the petitioner, the FIR revealed a nexus between the middlemen, hawala dealers and senior public functionaries, including persons in the judicial field. Startlingly, it names, amongst others, a retired Judge of the High Court of Odisha as an accused, who had allegedly been negotiating through a middleman to get a favourable order in an earlier petition pending before the Supreme Court. The writ petition further averred that in order to restore the confidence of the public in the judiciary, the CBI, which is controlled by the Government, should not be allowed to undertake the said investigation.

The circuitous circumstances in which the matter travelled to the Bench, which eventually passed the judgment on November 14, have been widely commented upon and it is neither the purpose of this article to wade into that debate nor address the findings in the judgment on the Chief Justice’s prerogative to constitute Benches of the Supreme Court or on the point of forum shopping.

However, it is submitted that the three Judges Bench, while passing the judgment at hand, crossed the ‘lakshman rekha drawn by the Supreme Court itself in its earlier judgments (including those passed by co-ordinate Benches), wherein it has frowned upon and indeed disapproved the tendency of superior Courts to go into or comment on the merits of a matter, while it is at a stage of investigation.

To recapitulate, in 2013, a three Judges Bench of the Supreme Court, while delineating the circumstances in which a police investigation can be transferred from the State investigating agency to any other investigating agency like the CBI, held in K.V. Rajendran vs. Superintendent of Police, CBCID South Zone, Chennai and others[2] that the power of transferring such investigation must be exercised in rare and exceptional cases where the court finds it necessary in order to do justice between the parties and to instil confidence in the public mind, or where investigation by the State police lacks credibility and where it is necessary for having “a fair, honest and complete investigation”, particularly, when it is imperative to retain public confidence in the impartial working of the State agencies. The Court also struck a note of caution that the Court should, under no circumstances, express its opinion on merits relating to any accusation against any individual.

The rationale for this principle can be best explained in the words of the Supreme Court itself in Union of India and others vs. Sushil Kumar Modi and others[3]:

“14. It appears necessary to add that the Court, in this proceeding, is concerned with ensuring proper and honest performance of its duty by the CBI and not the merits of the accusations being investigated, which are to be determined at the trial on the filing of the charge-sheet in the competent court, according to the ordinary procedure prescribed by law. Care must, therefore, be taken by the High Court to avoid making any observation which may be construed as the expression of its opinion on merits relating to the accusation against any individual. Any such observation made on the merits of the accusation so far by the High Court, including those in para 8 of the impugned order are not to be treated as final, or having the approval of this Court. Such observations should not, in any manner influence the decision on merits at the trial on the filing of the charge-sheet….”.

Notably the said judgment was also delivered by a three Judges Bench of the Supreme Court.

On the other hand, the judgment at hand has rendered the following findings:

“22… 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 order, 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 had 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. Bishanath Agarwala for getting favourable order ate Delhi shortly, whereas this Court has already decided the mater (sic) 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.

(emphasis supplied)

In the author’s considered view, the above observations in the judgment at hand throw open at least two important questions for consideration:

  1. Given that the limited prayer in the writ petition was to seek transfer of the CBI investigation to an SIT headed by a retired Chief Justice of India, was the Bench, while dismissing the petition, entitled to make observations on the merits of the matter, while the allegations in the FIR are still under investigation?
  2. Can such observations be read as ratio decidendi (having the character of law declared by the Supreme Court under Article 141 of the Constitution of India and constituting binding judicial precedent), given that the judgment fails to notice earlier judgments of the same Court (including those delivered by co-ordinate Bench(es)) on the same point?

It is the author’s respectful view that notwithstanding the tumultuous circumstances in which this case has been dealt with in full public and media glare and the merits of the finding rendered in this judgment, propriety demanded that the Supreme Court ought to have considered its earlier binding precedents on the point, before venturing into a consideration of the allegations in the FIR on their merits. This assumes significance since the judgment does not provide for the safeguards and qualifications of the kind as have been deemed necessary by the Supreme Court on earlier occasions.

The law applicable in such situations, as laid down by the Supreme Court, is instructive and has been re-affirmed by a Constitution Bench as recently as on October 31, 2017 in National Insurance Company Limited vs. Pranay Sethi and others[4]. The Constitution Bench, referring to certain previous judgments[5], held that an earlier decision of a co-equal Bench binds the bench of same strength. It was further held that a decision or judgment can be per incuriam if it is not possible to reconcile its ratio with that of a previously pronounced judgment of a coequal or larger Bench. Interestingly, it may be mentioned that one of the Judges on the Constitution Bench (Justice A.M. Khanwilkar) was also a member of the Bench in the case at hand.

Since the allegations in the FIR are serious in nature, and, at least in public perception, arguably cast doubts on the purity of the process of administration of justice at the highest level in the judicial hierarchy, one can only hope that these vexed questions will be addressed by the Supreme Court sooner than later. Further, pending such soul-searching by the Supreme Court and while such damning findings stand, one is left to speculate whether the investigating agency or for that matter the Court, before which the charge-sheet will be filed, will have any discretion, or indeed inclination, to investigate and examine the matter independently on its merits. We will have to wait and watch for the answer.

[1] RC.10(A)/2017-AC.III dated September 19, 2017, registered under Section 8 of the Prevention of Corruption Act, 1988 and Section 120-B of the Indian Penal Code, 1860

[2] (2013) 12 SCC 480

[3] (1996) 6 SCC 500

[4] 2017 SCC Online SC 1270

[5] Sandhya Educational Trust vs. Union of India (2014) 7 SCC 701, Rattiram vs. State of Madhya Pradesh (2012) 4 SCC, Indian Oil Corporation Limited vs. Municipal Corporation (1995) 4 SCC 96, Union of India and another vs. Raghubir Singh (dead) by LRs etc. (1998) 2 SCC 754

Ajit Warrier is a Partner at Shardul Amarchand Mangaldas. The views expressed are of the author and do not reflect the views of Bar & Bench.

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