Constitutional Law; Kamini Jaiswal Vs. Union of India [Supreme Court of India, 14-11-2017]

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.

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

(R.K. Agrawal, J.) (Arun Mishra, J.) (A.M. Khanwilkar, J.)

November 14, 2017

WRIT PETITION [CRIMINAL] NO.176 OF 2017

Kamini Jaiswal … Petitioner

Vs.

Union of India & Anr. … Respondents

J U D G M E N T

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 petitions are identically worded. The petition filed on Wednesday was to be listed on Friday (10.11.2017) before a Bench presided by Hon’ble A.K. Sikri and Ashok Bhushan, JJ. As stated by Shri Prashant Bhushan, one of the counsel representing the petitioner, the said fact was informed to him by the Registry of the Court on 8.11.2017. Learned counsel further states that as the petition had not been listed before same Bench which ordered its listing for Friday, i.e. Court No.2, it became necessary to file the present second petition i.e. W.P. (Crl.) No.176/2017 by Ms. Kamini Jaiswal, Advocate of this Court.

2. A prayer was made to Court No.2 to hear the matter on the same day; urgency in the matter had been urged by Shri Dushyant Dave, learned senior counsel, who mentioned the matter. Order dated 9.11.2017 passed by Court No.2 is extracted hereunder :

“Issue notice.

Dasti, in addition, is permitted.

This matter was taken on Board upon being mentioned in the morning at 10.30 a.m. On an inquiry from the Bench regarding the urgency in the matter, it was brought to the notice of the Court that a certain case is registered by the Central Bureau of Investigation against a retired High Court Judge of this country containing serious allegations implicating the said Judge, shown as an accused in the FIR No. 10(A) under Section 8 and Section 120 B of the Prevention of Corruption Act, 1988. The FIR contained certain allegations which are disturbing. The allegations pertain 2 to the functioning of this Court. On perusal of the FIR which was placed before us in the morning, we thought it necessary and proper to take up the matter immediately. Therefore, permission was granted to move the matter today at 12.45 p.m. before this Court. Accordingly the papers are placed before us at 12.45 p.m. Mr. Dushyant Dave, learned senior counsel makes submissions highlighting various aspects of the matter, the details of which we do not propose to make in this order. But, at the same time, we are also duty bound to place the developments that when the hearing of the matter was in progress, the Officer of the Registry placed a xerox copy of the proceedings purportedly issued by Hon’ble the Chief Justice of India, a copy of which is annexed to this Order. Having regard to the totality of the circumstances, we deem it appropriate that this matter be heard by the Constitution Bench of the first 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 before Hon’ble the Chief Justice for passing appropriate orders for listing this matter.

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.”

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.

5. It has been averred in the petitions, filed under Article 32 of the Constitution of India, that the FIR, relating to criminal conspiracy and of taking illegal gratification to influence the outcome of a pending case before this Court, reveals a nexus between the middlemen, Hawala dealers and senior public functionaries, including persons in the judicial field. The FIR has been registered with respect to case of Prasad Education Trust at Lucknow. The medical college set up by the Trust was debarred by the Government from admitting students for the years 2017-18 and 2018-19. The FIR lodged by the CBI names a retired Judge of the High Court as an accused, who had allegedly been negotiating through a middleman to get a favourable order in the petition pending before this Court. The said petition was heard by a Bench headed by Hon’ble Chief Justice of India. Thus, taking this as a pretext, in the instant petition, it has been averred, that the FIR casts a cloud on the judiciary at the highest level. Thus, the prayer has been made that, investigation in relation to aforesaid FIR should be handed over to an SIT headed by a retired Chief Justice of India and not left to the agency controlled by the Government; with the averment that in order to restore the confidence of the public in the judiciary, the agency controlled by the Government should not be allowed to undertake the said investigation. 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.

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