REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL ORIGINAL JURISDICTION
WRIT PETITION (CIVIL) NO.174 OF 2012
M. MANOHAR REDDY & ANR. … PETITIONERS
VERSUS
UNION OF INDIA & ORS. … RESPONDENTS
J U D G M E N T
Aftab Alam, J.
1. The two petitioners, who are advocates of the High Court of Andhra
Pradesh, have filed this petition under Article 32 of the Constitution of
India, purportedly in public interest.
This writ petition seeks a writ in
the nature of quo warranto,
quashing the appointment of respondent No.3 as a judge of the High Court of Andhra Pradesh and a writ in the nature of mandamus commanding the Bar Council of Andhra Pradesh to cancel his enrolment as an advocate.
The quashing of the appointment of respondent
No.3 as a judge of the High Court is sought on the ground that the
consultation process leading to his appointment was vitiated as both the
High Court and the Supreme Court Collegia as well as the Central Government
failed to consider two essential facts;
one, at the time of his
appointment, a criminal trial was pending in which respondent No.3 was notonly an accused but a proclaimed offender and
the other that
even at the time of his enrolment as an advocate he had concealed the criminal proceedings and in the relevant column of the application for enrolment with the Bar Council, he falsely stated that there was no pending proceeding against him.
2. In order to put the petitioners’ challenge to the appointment of
respondent No.3 as a judge of the High Court in the proper perspective, it
will be useful to give here a brief outline of the relevant facts.
3. The name of respondent No.3 was recommended for appointment as a
judge of the Andhra Pradesh High Court on November 14, 1998 by the Chief
Justice of the High Court with the other two Collegium members agreeing
with the recommendation.
The recommendation made by the High Court was
received in the Supreme Court on February 15, 1999.
At that time the age of
respondent No.3 was 41 years and six months and he had completed over 15
years of legal practice.
In the resume prepared by the Ministry of Law and
Justice that came to be put up before the Supreme Court Collegium,
respondent No.3 was described as under:
“Shri N.V. Ramana, Advocate:
BIO-DATA
He was enrolled as an Advocate on February 10, 1983. He
has practiced in the High Court of Andhra Pradesh, Central and Andhra
Pradesh Administrative Tribunals and the Supreme Court of India in
Civil, Criminal, Constitutional, Labour, Service and Election matters.
He has specialized in Constitutional, Criminal, Service and Inter-
State River laws. He has handled about 800 cases during the last
three years. He has functioned as Panel Counsel for Andhra Bank, Vysa
Bank, United India Insurance Co. and Food Corporation of India. He has
also functioned as Additional Standing Counsel for Central Government
and Standing Counsel for Railways in the Central Administrative
Tribunal at Hyderabad. At present he is functioning as Additional
Advocate General of Andhra Pradesh. His professional income during the
last three years was as tabulated below:
Year Gross Income Taxable Income
1996-97 7,87,210 2,21,200
1997-98 10,31,465 3,68,950
1998-99 38,95,973 16,94,928”
And the Intelligence Bureau report about him stated as under:
“I.B. REPORT:
He enjoys good personal/professional image. Nothing adverse
against his character, reputation and integrity has come to notice, so
far. He has also not come to notice for links with any political
party/communal organization.
None of his relatives is either serving or has served earlier as
judge in any High Court or Supreme Court.”
4. Following the consultative process between the different
constitutional functionaries, a notification was issued on June 19, 2000
appointing respondent No.3 as a judge of the Andhra Pradesh High Court and
respondent No.3 took the oath and assumed the office as a judge of the
Andhra Pradesh High Court on June 27, 2000. Since then he is continuously
working in that capacity.
5. It now comes to light that all through the period when the
recommendation was made for his appointment as a judge and the notification
was issued and he assumed the office as a judge, a criminal case was
pending in which respondent No.3 was an accused.
It is, therefore,
necessary to look into the criminal case and its proceedings.
The criminal
case in question dates back to the year 1981 when respondent No.3 was a
student of Nagarjuna University.
The students of the University, it
appears, complained of inadequate public transport facilities for commuting
from their homes to the University as only a few buses plying between
Guntur and Vijayawada stopped at the University.
They demanded that more
buses should stop at the University. As is not uncommon with the youth in
this country, some of the students of the University took to agitation in
connection with the demand and at about 8.30 p.m. on February 13, 1981, a
group of about 30 students put road blocks on the GNT road, opposite
Nagarjuna University, causing stoppage of all vehicles on the road. At
about 9.15 p.m., a bus of the State Transport Corporation, on its way from
Guntur to Vijayawada, arrived there when there was already a heavy jam and
pulled up at the road flank.
In such situations, unfortunately a State bus
is the softest and the most vulnerable target. In this case also the State
bus became the target of the agitating students’ ire. The driver of the bus
was pulled down and the door to the driver’s seat was damaged. Some
miscreants pelted stones on the bus and smashed its windscreen and glass
windows with iron rods. One of the passengers also received some injuries.
By this time a police party also came to the spot.
At this stage, an
attempt was made to set fire to the bus by throwing a burning oil cloth
tied to a rod inside the bus. But, a policeman put out the burning cloth
and the bus was saved from any further damage. Shortly thereafter the
police dispersed the agitating students and restored normalcy. On the same
day at 11.00 p.m. the driver of the bus lodged a first information report
in connection with the incident at Mangalagiri Police Station where it was
registered as Crime No. 55 of 1981 under Sections 147, 342, 427 and 324 of
the Penal Code. The FIR was against unknown persons and the accused were
described as “Nagarjuna University students”.
6. The police after investigation drew up a charge sheet dated October
10, 1983 and on October 19, 1983 submitted it in the court of the Munsif
Magistrate, Mangalagiri where it was registered as C.C. No.229/1983.
From
the charge sheet it appears that in their statements recorded under Section
161 of the Code of Criminal Procedure, the Driver and the Conductor of the
bus (apart from some other witnesses) identified and named five persons as
the student- leaders who were leading the agitation on February 13, 1981.
The charge sheet, accordingly, cited five persons as accused and respondent
No.3 figured among them at serial No. 4. All the accused were shown as
absconders.
The charge sheet, however, does not disclose what steps were
taken by the investigating officer to secure the presence of the accused.
There is no mention that the investigating officer ever tried to obtain
from the court warrants of arrest or processes under Sections 82 and 83 of
the Code of Criminal Procedure for apprehending the accused.
They were
simply shown as absconders without observing the procedure sanctioned by
law before an accused can be called an absconder.
7. The fact of the matter, however, is that this Crime Case No.229/83
(later re-numbered as CC No.75/87 and then CC No.167/91) was undeniably
pending at the time of appointment of respondent No.3 as a judge of the
High Court and it is contended on behalf of the petitioners that the
failure to take into account the pendency of the criminal case while his
name was recommended by the High Court Collegium and approval and consent
was accorded by the Supreme Court Colllegium and the Central Government for
his appointment as a judge of the High Court deeply flawed the
participatory consultative process as envisaged in Article 217(1) of the
Constitution and as developed by the decisions of this Court in Supreme
Court Advocates-on–Record Association[1] and later on in Special Reference
No. 1 of 1998[2].
It is submitted the appointment of the respondent
resulting from a consultation process that failed to take into account an
important and relevant fact was completely illegal and was, therefore,
liable to be quashed by a writ of quo warranto. The respondent had no right
to hold the office of a High Court judge and this Court must step in to
correct the grave error committed by his appointment.
8. It needs to be noted here that the learned Attorney General was
requested to address the Court on the question of maintainability of this
writ petition that seeks a writ, quashing the appointment of a judge of the
High Court.
The Attorney General submitted that the writ petition was not
maintainable and was liable to be dismissed summarily.
He submitted that
the prayer for a writ of quo warranto quashing the appointment of
respondent No.3 was only a camouflage and what the petitioners really aimed
at was the removal of the judge who had been in office for over twelve
years.
The removal of a judge in office, the Attorney maintained, was an
issue directly related to the independence of judiciary that is fundamental
to the Constitutional scheme.
The Attorney pointed out that in order to
make the judiciary independent and to make it possible for the judges to
discharge their duties without fear or favour the Constitution firmly
secured the tenure of a judge and granted that a judge of any of the
superior courts could only be removed from office on the basis of an
impeachment motion passed by the Parliament as provided under Article
124(4) (in the case of a judge of the Supreme Court) and Article 217 read
with Article 124(4) (in the case of a judge of the High Court).
The
Constitution did not recognize any other mode for the removal of a judge.
Any deviation from the Constitutional process in the garb of quashing the
appointment by a writ of quo warranto would be violative of the scheme of
the Constitution and deleterious for the independence of the judiciary.
He
further submitted that if the petitioners thought that the appointment of
respondent No.3 as a judge of the Andhra Pradesh High Court was wrong and
there were grounds for his removal from the office, they could always bring
the matter to the notice of the Parliament which alone was the
Constitutional forum competent to remove a judge of the High Court from his
office from any misbehaviour committed either before or after his
appointment as a judge.
He added that in case the Parliament declined to
take any action for the removal of the judge on the petitioner’s complaint
the Court was powerless in the matter and the removal of the judge could
not be brought about by the device of quashing his appointment. He went so
far as to say that in entertaining this writ petition on merits the Court
would be overstepping its Constitutional limits.
9. Mr. Shanti Bhushan, learned senior advocate appearing for the
petitioners, on the other hand, submitted that writ petition raised the
issue of inviolability and credibility of appointment to the high office of
the High Court judge. He further submitted that the Court must not be seen
as protecting someone wrongly appointed as a judge of the High Court for,
the people’s faith and trust and confidence in the courts and the judges
presiding over the courts was as much necessary to support the independence
of judiciary as the guarantees under the Constitution and the laws. Mr.
Shanti Bhushan further submitted that in the past also similar issues came
before the Court and the Court never declined to examine the merits of the
case and passed appropriate orders.
In support of the submission, he relied
upon the decisions of this Court in (i) Shri Kumar Padma Prasad v. Union of
India[3], (ii) Shanti Bhushan v. Union of India[4] and (iii) Mahesh Chandra
Gupta v. Union of India[5].
10. The second case cited by Mr. Shanti Bhushan is one which he himself
had filed as public interest litigation, assailing the extension granted to
respondent No.2 in that case as an Additional Judge of the Madras High
Court. He relied upon paragraph 25 of the judgment in that case but, we
fail to see anything in that decision that may serve as an authority on the
question of maintainability of a writ petition for quashing the appointment
of a judge after many years of his assuming the office.
11. However, the first and the third case relied upon by Mr. Shanti
Bhushan deserve consideration.
12. In Shri Kumar Padma Prasad, the Court dealt with a writ petition that
was filed originally before the Gauhati High Court but was later
transferred and brought to this Court. The writ petition was filed at the
stage where though the warrant had been issued under the hand and seal of
the President of India, appointing one of the respondents in that case,
namely, K.N. Srivastava as a judge of the Gauhati High Court, he was still
to make and subscribe the oath/affirmation under Article 219 of the
Constitution. This means that he had not entered upon the office of the
judge and the writ petition was filed before the matter had reached the
stage of Article 217 as the person whose appointment was under challenge
was yet to assume the office of the judge. In that case this Court indeed
stepped in to interfere and to stop the appointment from materializing.
This Court found and held that on the date of issue of the warrant by the
President of India K.N. Srivastava was not qualified to be appointed as a
judge of the High Court. It, accordingly, quashed his appointment as a
judge of the Gauhati High Court and directed the Union of India and the
other concerned respondents not to administer the oath or affirmation under
Article 219 of the Constitution to K.N. Srivastava. K.N. Srivastava was
similarly restrained from making and subscribing the oath or affirmation in
terms of Article 219 of the Constitution of India. It is, thus, to be
noted that the Court intervened in the matter before the person concerned
had assumed the office of the judge on the ground that he was not qualified
to be appointed as a judge or, in other words, was not eligible to be
appointed as a judge.
13. The concepts of “eligibility” and “suitability” were later examined
by this Court in the decision in Mahesh Chandra Gupta (to which one of us
Aftab Alam, J. was also a Member). In Mahesh Chandra Gupta, challenge was
made to the appointment of a judge of the Allahabad High Court after the
incumbent had assumed his office. In the writ petition, as it was
originally filed, the appointment was questioned only on the ground that
the incumbent did not possess the basic eligibility for being appointed as
a judge of the High Court. Later on, the appointment was also challenged on
grounds of suitability and want of effective consultation process by taking
additional pleas in supplementary affidavits. Kapadia, J. (as His Lordship
then was), speaking for the Court brought out the distinction between
“eligibility” and “suitability” and pointed out that eligibility was based
on objective facts and it was, therefore, liable to judicial review. But,
suitability pertained to the realm of opinion and was, therefore, not
amenable to any judicial review. The Court also examined the class of cases
relating to appointment of High Court judges that might fall under judicial
scrutiny and concluded that judicial review may be called for on two
grounds namely, (i) “lack of eligibility” and (ii) “lack of effective
consultation”. In paragraphs 39, 43 and 44 of the judgment the Court said:
“39. At this stage, we may state that, there is a basic
difference between “eligibility” and “suitability”. The process of
judging the fitness of a person to be appointed as a High Court Judge
falls in the realm of suitability. Similarly, the process of
consultation falls in the realm of suitability. On the other hand,
eligibility at the threshold stage comes under Article 217(2)(b). This
dichotomy between suitability and eligibility finds place in Article
217(1) in juxtaposition to Article 217(2). The word “consultation”
finds place in Article 217(1) whereas the word “qualify” finds place
in Article 217(2).
43. One more aspect needs to be highlighted. “Eligibility” is an
objective factor. Who could be elevated is specifically answered by
Article 217(2). When “eligibility” is put in question, it could fall
within the scope of judicial review. However, the question as to who
should be elevated, which essentially involves the aspect of
“suitability”, stands excluded from the purview of judicial review.
44. At this stage, we may highlight the fact that there is a vital
difference between judicial review and merit review. Consultation, as
stated above, forms part of the procedure to test the fitness of a
person to be appointed a High Court Judge under Article 217(1). Once
there is consultation, the content of that consultation is beyond the
scope of judicial review, though lack of effective consultation could
fall within the scope of judicial review. This is the basic ratio of
the judgment of the Constitutional Bench of this Court in Supreme
Court Advocates-on-Record Assn. and Special Reference No. 1 of 1998.
(emphasis added)
14. In paragraphs 71 and 74 of the judgment again the Court observed as
under:
Justiciability of appointments under Article 217(1)
71. In the present case, we are concerned with the mechanism for
giving effect to the constitutional justification for judicial review.
As stated above, “eligibility” is a matter of fact whereas
“suitability” is a matter of opinion. In cases involving lack of
“eligibility” writ of quo warranto would certainly lie. One reason
being that “eligibility” is not a matter of subjectivity. However,
“suitability” or “fitness” of a person to be appointed a High Court
Judge: his character, his integrity, his competence and the like are
matters of opinion.
74. It is important to note that each constitutional functionary
involved in the participatory consultative process is given the task
of discharging a participatory constitutional function; there is no
question of hierarchy between these constitutional functionaries.
Ultimately, the object of reading such participatory consultative
process into the constitutional scheme is to limit judicial review
restricting it to specified areas by introducing a judicial process in
making of appointment(s) to the higher judiciary. These are the norms,
apart from modalities, laid down in Supreme Court Advocates-on-Record
Assn. and also in the judgment in Special Reference No. 1 of 1998, Re.
Consequently, judicial review lies only in two cases, namely, “lack of
eligibility” and “lack of effective consultation”. It will not lie on
the content of consultation.
(emphasis added)
15. In view of the decision in Mahesh Chandra Gupta, the question arises
whether or not the case in hand falls in any of the two categories that are
open to judicial review. Admittedly, the eligibility of respondent No.3 is
not an issue. Then, can the case be said to raise the issue of “lack of
effective consultation”.
16. Mr. Shanti Bhushan strongly argued that the consultation that led to
the appointment of respondent No.3 as the judge of the Andhra Pradesh High
Court was completely deficient for not taking into consideration that he
was accused in a pending criminal case and as a result, the appointment of
respondent No.3 was wholly vitiated and it was fit to be quashed by this
Court. In support of the submission Mr. Shanti Bhushan heavily relied upon
the decision of this Court in Centre for PIL and another v. Union of India
and another[6] (commonly called as the CVC case). Mr. Shanti Bhushan
submitted that in that case this Court had made institutional integrity as
part of eligibility criteria and had, thus, highly raised the standards of
qualification for appointment to a public office.
17. In the CVC case a three judge Bench of this Court held that the
recommendation for appointment of Shri P.J. Thomas as the Central Vigilance
Commissioner was non-est in law and, consequently, quashed his appointment
to that post. The recommendation for appointment of Shri P.J. Thomas was
made, by a majority of 2:1, by a committee consisting of (i) the Prime
Minister, (ii) the Minister of Home Affairs and (iii) The Leader of
Opposition in the House of the People (referred to in the judgment as the
High-Powered Committee or the HPC). The Court held that the recommendation
was non-est because the HPC had failed to take into consideration the
pendency of case No. 6 of 2003 (relating to the import of Palmolein oil by
the Kerala Government), in which the Government of Kerala had accorded
sanction for the prosecution of Shri P.J. Thomas (among others) for
committing offences punishable under Section 120-B of the Penal Code read
with Sections 13 (i) (d) of the Prevention of Corruption Act and had based
its recommendation entirely on the blanket clearance given to Shri P.J.
Thomas by the CVC (then in office) and the fact that during the pendency of
the criminal case Shri P.J. Thomas was appointed as Chief Secretary of
Kerala, then as the Secretary of Parliamentary Affairs and subsequently as
the Secretary, Telecom.
18. At the first glance the CVC case appears to have some parallels with
the case in hand and in order to apply the decision in the CVC case to the
present case Mr. Shanti Bhushan extensively cited from the judgment the
passages where this Court identified the CVC as an institution and an
“integrity institution”, stressed the imperative to uphold and preserve the
integrity of that institution and observed that the recommendation for
appointment as CVC should be not only with reference to the candidate but
the overarching consideration should be the institutional integrity of the
office. (See paragraphs 34-37, 42, 43, 47, 59 and 89 of the judgment).
19. We have given the most careful consideration to the CVC decision and
the submissions made by Mr. Shanti Bhushan on the basis of that decision,
all the time bearing in mind that the Court must not overlook or condone
something that may have the effect of lowering down the people’s faith or
trust in the judges or in courts. But we find that though there are some
superficial similarity between the CVC case and the case in hand, the two
cases are quite different in their core issues and we find it impossible to
justly apply the CVC decision to the facts of the case in hand.
20. In the CVC case the HPC was not unaware of Shri P.J. Thomas being an
accused in a pending case for offences punishable under Sections 120-B of
the Penal Code read with Section 13(1)(d) of the Prevention of Corruption
Act. The recommendation that the HPC made in exercise of the statutory
power under the proviso to Section 4 of the Central Vigilance Commission
Act, 2003 was in a sense in defiance of the pending trial before the
criminal court. The genesis and the developments taking place in the
criminal case are discussed in paragraph 8 to 21 of the judgment in the CVC
case from which it appears that the institution of the case was preceded by
the report of the Comptroller and Auditor General, followed by the report
by the Public Undertaking Committee of the Kerala Assembly. On the basis of
the reports, at least two writ petitions were filed (unsuccessfully)
seeking direction of the High Court for institution of a criminal case. The
criminal case was finally filed after the new government came to power in
the State following the election on May 20, 1996. Even after the
institution of the case the matter had repeatedly gone to the High Court
and traveled up to this Court. The Government of Kerala had made repeated
requests to the Central Government in the Department of Personnel and
Training for grant of sanction for prosecution of Shri P.J. Thomas. The
matter had gone to the Central Vigilance Commission and there were its
recommendations on record for initiation of disciplinary proceedings
against Shri P.J. Thomas. In paragraph 44 of the judgment, the Court
pointed out that between 2000 and 2004 there were at least six noting of
the DoPT suggesting that penalty proceedings may be initiated against Shri
P.J. Thomas.
21. In short, the fact about the pendency of the criminal case and Shri
P.J. Thomas being one of the accused in the case was writ large all over
the record before the HPC. The fact was not only within the personal
knowledge of each of the three members of the HPC but it was in public
domain. Hence, the recommendation of the HPC was not in ignorance of the
criminal case. The recommendation was for appointment of Shri P.J. Thomas
as the Central Vigilance Commissioner notwithstanding his being an accused
in the criminal case and the HPC appeared not to see the criminal case as
any impediment in the way of his appointment as the Chief Vigilance
Commissioner.
22. Let us now examine how far the facts of the present case bear
similarity to the CVC case.
23. In the writ petition and in course of hearing of the case respondent
No.3 has been repeatedly called, a little loosely and rather uncharitably,
an “absconder” and a “proclaimed offender” in a case of robbery and burning
down of a bus.
It is seen above that the criminal case in question had no
element of robbery or bus burning.
We may now examine how far it is correct
to call respondent No.3 as an “absconder” and a “proclaimed offender”.
24. It is noted above that the charge sheet was filed in the court of the
Munsif Magistrate, Mangalagiri on October 19, 1983. On October 25, the
Magistrate directed for issuance of summonses, fixing November 25, 1983 as
the date for hearing. The summonses, issued in pursuance of the order, are
on file marked as paper nos. 25 to 30, but they bear no endorsement about
service. At the reverse of summonses to accused 3 and 4, it is mentioned
that they were studying in B.L., First Year, Nagarjuna University.
On
November 25, 1983, the accused were not present in court. Their absence was
recorded in the order-sheet and fresh summonses were directed to be issued,
fixing December 23, 1983 as the date of hearing.
Whether or not summonses
were issued in pursuance of the order is not known because those summonses
are not on the record.
On December 23, 1983, the accused were again not
present and summonses were again directed to be issued, fixing January 25,
1984 for hearing.
On January 25, 1984, the accused were once again not
present and fresh summonses were issued fixing February 15, 1984 for
hearing.
The summonses are on the file marked as paper Nos. 31 to 36.
The
case was then listed on a number of dates but the accused did not appear.
Finally on November 27, 1985, accused 1 appeared in court but accused 2 to
5 were still not present.
On January 9, 1987, the court ordered to separate
the case of accused 2 to 5 and proceeded with the trial of accused 1.
On
June 2, 1987, statement of accused 1 was recorded under Section 251 of the
Code of Criminal Procedure.
On March 1, 1988, the statements of PW1 and
PW2, namely, S. Satyanarayanaraju and P. Peda Sivaiah (being the driver and
conductor of the bus in question) were recorded.
It is significant to note
that neither the driver nor the conductor of the bus (PW1 and PW2 respectively), named or identified the accused who had attacked the bus.
The driver said that around 50 or 60 students had charged at them in a
group.
The conductor said that when the driver stopped the bus, the
students came shouting and blocked the bus. He became afraid and ran away
with the cash bag. The prosecution did not examine any more witnesses and
on May 12, 1988, accused 1 was examined under Section 313 of the Code of
Criminal Procedure.
Finally by judgment and order dated July 4, 1988, the
trial court found accused 1 not guilty of the offences alleged against him
and acquitted him of the charges.
While acquitting him, the trial judge
noted that the prosecution witnesses were not able to identify the accused.
It was also noted that as per the FIR the incident occurred at night and
the bus was attacked by more than 50 persons and there was no material with
regard to the identity of the culprits who attacked the bus and caused
damage. It was noted that the FIR does not mention the names of the persons
who participated in the offence. It was also noted that in his deposition
before the trial court PW2 (the bus conductor) denied having identified the
accused in his statement under Section 161 of the Code of Criminal
Procedure.
25. Let us now see the case relating to the other four accused, including
accused 4, that is respondent No.3.
26. It is noted above that on November 27, 1985 accused 1 alone appeared
before the court. On March 5, 1986 the court ordered for issuance of non-
bailable warrants against accused 2 to accused 5. The warrants are not on
record and it is not known whether any warrants were in fact issued in
pursuance of the order. On January 9, 1987 the court ordered to separate
the case of accused 2 to accused 5. After the case was separated, the
record pertaining to accused 2 to accused 5 was registered as CC No. 75/87
and was later renumbered as CC No. 167/91. From the order sheet it appears
that from May 1987 to August 1991, the court passed orders on about twenty
four dates directing for issuance of non-bailable warrants of arrest
against the accused but no compliance is noted against any order, excepting
the one passed on August 30, 1991.
However, no warrants, even of that date,
are on the file. Mechanical orders continued to be passed in the same
fashion till April 2000 and then suddenly on May 8, 2000 the order was
passed for issuance of non-bailable warrants and processes under Sections
82 & 83 of Code of Criminal Procedure against the accused, fixing July 18,
2000 as the next date in the case.
The compliance of the order is noted on
May 11, 2000 on the order sheet. From the record it, however, appears that
process under Sections 82 & 83 was issued on May 11, 2000 only against
accused 3, P.R. Muruthy son of P.B. Subbarao.
Thereafter, the case was
listed on several dates, awaiting execution of warrants and proclamation.
On June 20, 2001 the court took steps for recording evidence in absence of
the accused under Section 299 of the Code of Criminal Procedure and then,
after the case was listed on three different dates, on November 5, 2011,
the examination-in-chief of the bus driver (PW1) was recorded under Section
299 of the Code of Criminal Procedure.
On the same date, the examination-in-chief of the bus conductor (PW2) was recorded.
In their depositions neither
PW1 nor PW2 (the bus driver and the bus conductor) named anyone as accused
and both of them said that they did not know the leaders of the group of
students that had attacked the bus. Again on the same day, that is November
5, 2011, the Assistant Public Prosecutor made an application to the effect
that the other witnesses mentioned in the charge-sheet were passengers in
the bus and their whereabouts are not known in view of the passage of time.
Accordingly, it was prayed that the evidence of the prosecution may be
closed.
27. Thereafter, the Magistrate submitted the record to the Sessions
Judge, Guntur with the request to issue proceedings to treat the case as
long pending case. The Sessions Judge on December 26, 2011 gave permission
to the trial judge to declare the case being CC No. 167/1991 as a long
pending case.
28. However, soon thereafter on January 31, 2002, the Assistant Public
Prosecutor moved an application under Section 321 of the Code of Criminal
Procedure, seeking permission to withdraw the case in the interest of
justice. A reference was made in the application to GO Rt No. 1961, dated
December 11, 2001 whereby the Government had decided to withdraw the
prosecution against the accused persons. On a consideration of the
materials on record, by an order dated January 31, 2002, the trial judge
granted permission to the prosecution to withdraw the case and,
accordingly, all the accused were discharged.
29. A perusal of the court record shows that during the entire period,
service of summonses in the ordinary course were not effected on the four
accused persons. Although a proclamation under Section 82 and 83 of the
Code of Criminal Procedure was ordered to be issued, the record does not
show any publication having been made. However, the record does show that
service was sought to be effected by beat of drum only on accused 3. There
is nothing on the record to show that any attempt, let alone any serious
attempt, was made to serve the summons or the non-bailable warrants on any
of the accused persons.
30. The purpose in adverting to the proceedings of the criminal case in
detail is not to point out the irregularities in the proceeding. Anyone
even with a passing acquaintance with the Code of Criminal Procedure can
see that gross irregularities were committed practically at every step in
the proceeding. We have referred to the proceedings to judge whether
respondent No. 3 could be said to have any knowledge of the case in which
he was cited as accused 4. From the record of the case which we have
discussed in detail above, we find it very difficult to hold that
respondent No. 3 was even aware that in some record buried in the courts at
Mangalagiri he was named as an accused and he was required to appear in the
court in connection with that case.
31. Apart from the record of the case, there are external circumstances
that strengthen this view. From the resume of respondent No. 3, as noted at
the beginning of the judgment, it may be seen that before his appointment
as a judge of the High Court, he was the Additional Advocate General of
Andhra Pradesh. If the case would have been within his knowledge it is
unimaginable that he would not have attended to it and got it concluded one
way or the other.
32. Here it may also be noted that before filing this writ petition
before this Court the petitioners had made a representation, both before
the Chief Justice of India and the Law Minister, asking for the removal of
respondent No. 3 as a judge of the Andhra Pradesh High Court on the same
allegations. The representation that came to the office of the Chief
Justice of India received full consideration and the Chief Justice of India
called for a report on the matter from the Chief Justice of the Andhra
Pradesh High Court vide his letter dated January 18, 2012. The Chief
Justice, Andhra Pradesh High Court made a detailed enquiry and submitted
his report dated February 7, 2012. In his report the Chief Justice, Andhra
Pradesh High Court came to the same conclusion as we have arrived at on an
independent appraisal of the record of the case. In paragraphs 29 and 32 of
the report, the Chief Justice stated as under:
“29. It does appear that Justice XXX was unaware of the pendency of
the criminal case. I say this from the record of the case, which
speaks for itself, and the contents of which need not be repeated. I
also say this for another reason.
32. In my opinion Justice XXX was truly unaware of the criminal case
against him and he deserves to be believed when he says so.”
33. In light of the discussion made above, we have no hesitation in
holding that at the time respondent No.3 was being considered for
appointment as a judge of the High Court, he was unaware of any case being
pending in which he was named as an accused and it is quite wrong to refer
to him as “an absconder and a proclaimed offender” in the case. This
finding leads to another and that is, it is not a case of suppression of
any material fact by respondent No.3 or at his behest. Here we wish to make
it clear that had it been a case of deliberate and conscious suppression of
material fact by respondent No.3 the position would have been entirely
different. But that is not the case here.
34. Now we propose to examine whether apart from respondent No. 3, anyone
else, who could be in the position to bring the fact to the knowledge of
the High Court Collegium or the State Government or the Supreme Court
Collegium or the Central Government, was aware of the pendency of the case.
35. Mr. Shanti Bhushan submitted that the State Police had submitted the
charge-sheet against respondent No. 3 and hence, the State Government must
be deemed to be aware of the fact. The submission plainly overlooks that
the State Government is not a monolith and it does not function as a single
person. The State Government functions in different departments manned by
different people and simply because a charge-sheet was submitted by the
State Police no conscious knowledge of the fact can be attributed to the
State Government.
36. We have carefully gone through the record relating to the appointment
of respondent No. 3 as a judge of the Andhra Pradesh High Court. From the
record it is evident that none of the members of the High Court or the
Supreme Court Collegia was aware of the fact. The State Government was
equally unaware of the fact and so was the Central Government as is evident
from the resume prepared by the Law Ministry as also the IB Report.
37. This is not all. In 1993, respondent No. 3 was a candidate for the
post of the Member of the Income Tax Appellate Tribunal and in that
connection he was interviewed by a Selection Committee headed by a sitting
judge of the Supreme Court. He was selected for appointment and was issued
an appointment letter dated September 8, 1995 as judicial member in the
ITAT. The appointment letter was undoubtedly issued to him only after
police verification and nothing was mentioned even at that stage about any
criminal case pending against him. He did not accept the appointment is
another matter altogether.
38. From all the attending circumstances, it is clear beyond doubt that
not only respondent No. 3 himself but practically no one was aware of the
pendency of the case in which he was named as an accused.
39. The question, therefore, arises can a fact that is unknown to anyone
be said to be not taken into consideration and can the consultative process
faulted as incomplete for that reason. To our mind, the answer can only be
in the negative. To fault the consultative process for not taking into
account a fact that was not known at that time would put an impossible
burden on the Constitutional Authorities engaged in the consultative
process and would introduce a dangerous element of uncertainty in the
appointments.
40. In case it comes to light that some material facts were withheld by
the person under consideration or suppressed at his behest then that may be
a case of fraud that would vitiate the consultative process and
consequently the appointment resulting from it. But in case there was no
suppression and the fact comes to light a long time after the person
appointed has assumed the office of a judge and if the Members of the two
Houses of the Parliament consider the discovered fact sufficiently serious
to constitute misbehaviour and to warrant his removal, then he may still be
removed from office by taking recourse to the provisions of Article 124(4)
or Article 217 read with Article 124(4) as the case may be. In case,
however, the fact was unknown and there was no suppression of that fact, a
writ of quo warranto would certainly not lie on the plea that the
consultative process was faulty.
41. In light of the discussion made above, we are clearly of the view
that no case is made out for issuing a writ of quo warranto quashing the
appointment of respondent No. 3 as the judge of Andhra Pradesh High Court.
42. The legal issue raised by Mr. Shanti Bhushan is answered but this
matter cannot be given a proper closure unless we also say that this writ
petition professed to have been filed in public interest is, in our view,
but a ruse to malign respondent No.3.
43. In his report to the Chief Justice of India the Chief Justice, Andhra
Pradesh High Court has made the following comment:
“27. The incident occurred almost 30 years ago. The case against
Justice Ramana was withdrawn almost 10 years ago. That it should be
raked up now is a little inexplicable. The case does not seem to have
been sensational in any manner whatsoever so that someone would be
following it up. Therefore, it is a little odd that it should have
suddenly surfaced now. It is possible that there is some reason behind
digging up this case, but I am unable to fathom the motive.”
44. What the Chief Justice said, in a highly restrained manner, about the
representation addressed to the Chief Justice of India, applies more to
this writ petition. The writ petition owes its origin to a news report
published in a Telugu daily newspaper called ‘Sakshi’ on December 27, 2011.
A translated copy of the report is enclosed as Annexure P-11 to the writ
petition. The report is based on incorrect facts and is full of statements
and innuendos that might easily constitute the offence of defamation leave
alone contempt of court. After the news broke out, the petitioners seem to
have collected the record of the criminal case and filed this writ petition
on that basis. The writ petition is drafted with some skill and it presents
the facts of the criminal case in a rather twisted way in an attempt to
portray respondent No.3 in bad light. The way the writ petition is drafted
shows that the petitioners are competent and experienced counsel. Had they
examined the records of the criminal case objectively and honestly, there
was no reason for them not to come to the same conclusion as arrived at in
this judgment or as appearing from the report of the Chief Justice, Andhra
Pradesh High Court. It, therefore, appears to us that this writ petition is
not a sincere and honest endeavour to correct something which the
petitioners truly perceive to be wrong but the real intent of this petition
is to malign respondent No.3.
45. It is indeed very important to uphold the “institutional integrity”
of the court system as pointed out in the CVC judgment and as strongly
advocated by Mr. Shanti Bhushan, but it is equally important to protect the
court from uncalled for attacks and the individual judges from unjust
infliction of injuries.
46. In light of the discussions made above, we find this writ petition
not only without merit but also wanting in bona fides. It is, accordingly,
dismissed with costs of Rs.50,000/- payable by each of the two petitioners.
The cost amount must be deposited in a fund for the welfare of the
employees of the Andhra Pradesh High Court within four weeks from today.
…..…………………………J.
(Aftab Alam)
…..…………………………J.
(Ranjana Prakash Desai)
New Delhi;
February 4, 2013.
-----------------------
[1] (1993) 4 SCC 441
[2] (1998) 7 SCC 739
[3] (1992) 2 SCC 428
[4] (2009) 1 SCC 657
[5] (2009) 8 SCC 273
[6] (2011) 4 SCC 1
