Judicial officer can not be prosecuted by state under prevention of corruption Act unless afirmative opinion is given by high court
.
(2) In brief, the facts of the case are as under:- The respondent who is a member of Delhi Higher Judicial Service held the post of Secretary, Law and Judicial, National Capital Territory of Delhi till 28.2.1990 and was also appointed, inter-alia, as Administrator General under Section 3 of the Administrator General Act, 1963. The Deputy Administrator General was supposed to assist the Administrator General. After affording repeated opportunities to Mr. Kazim Ali Khan for handing over the charge, he failed to hand over the charge and consequently, a case bearing Rc 16 (A)/92-DLI dated 31.3.1992 under Sections 120B, 409 Indian Penal Code and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was registered by Cbi against Mr. Kazim Ali Khan alleging criminal conspiracy with some unknown persons to amass property for personal use or for the use of his relatives. The property in question was No. 110, Darya Ganj, New Delhi which is part of the estate of Late Mrs. Draupdi Devi. The respondent had applied to the Hon'ble High Court in 1973 for collecting and taking possession of the aforesaid property. The High Court in Probate case No. 12/71 permitted the respondent to look after the property being the Administrator General, Further vide order dated 3.10.1978, the High Court restrained the said Administrator General from letting out the said property without seeking direction of the High Court. The said Probate proceedings are still pending and the order dated 3.10.1978 is still in force. During the period when the respondent and said Mr. Kazim Ali Khan were Administrator General and Deputy Administrator General Respectively, the first floor and second floor of the property fell vacant. The said Administrator General, respondent herein is alleged to have granted the lease of the said first and second floor of the above property to Mr. S.S. Ali Khan, son of the then Deputy Administrator General, Mr. Kazim Ali without prior permission of this Court at an allegedly ridiculously low rent of Rs. 100.00 per month, though the market rent of the property was Rs. 5,600.00 per month. The petitioner has alleged that the grant of lease by the respondent was patently against the order dated 3.10.1978 which appears to be at the instance of the Deputy Administrator General. It is further alleged that both the Administrator General and Deputy Administrator General entered into criminal conspiracy with the object of causing and facilitating undue pecuniary advantage to Mr. S.S. Ali Khan. Consequently, the State Government vide letter dated 19.6.1993 consulted the High Court for sanction to initiate prosecution against the respondent under Section 19(1)(c) of the Prevention of Corruption Act. The High Court conveyed the following views to the Lieutenant Governor:-
"....THEprobate case in which Sh. B.S. Chaudhry was appointed as Administrator General by the Court is pending. This Court offers no views."
(3) As the High Court offered no views in the matter, the Lieutenant Governor of National Capital Territory of Delhi granted permission to prosecute the respondent. The said prosecution was challenged by the respondent which challenge was upheld by this Court. While disposing of the said C.W.P., the Division Bench of this Court, inter-alia, held as under:-
"BY way of abundant caution, it is made clear that our order shall not come in the way of the Lt. Governor having consultation afresh with the High Court and granting sanction afresh consistently, with the observations made and law stated hereinabove."
(4) Consequently, the Lieutenant Governor sought fresh consultation on this very point. Following receipt of the said letter, the High Court at a full Court meeting reconsidered the case and came to the conclusion that it was not a fit case for grant of permission. In the present case whatever ambiguity could possibly be construed from the words, "this Court offers no views" had ceased to exist when the entire matter was considered afresh and as a consequence of such reconsideration, it was communicated by the Registrar of this Court to the Lieutenant Governor as under:-
"I am desired to say that the matter was considered by the Hon'ble full Court of this Court and their Lordships have desired me to inform you that the High Court does not find it a fit case for grant of prosecution sanction under Section 197 Criminal Procedure Code . and Section 19(10(c) of the Prevention of Corruption Act in respect of Mr. B.S. Chaudhry, Additional District & Sessions Judge, Delhi."
(5) There appeared to be no case for the Chief Secretary to make a further reference to High Court for reconsideration after the full Court had reconsidered the matter, and conveyed its opinion in unambiguous terms. This reference to say the least was also uncalled for. Yet the Chief Secretary vide his letter dated 29.11.1995 to the Registrar of this Court sought reconsideration of the matter by full Court. The matter was reconsidered by the full Court and on 30.1.1996, the following decision was communicated :-
"....THEmatter was again considered by the full Court of this Court in its meeting held on 20.1.96 with reference to its meeting held on 20-1-1996 with reference to the request of the Government of the National Capital Territory of Delhi contained in the letter dated 20.11.95, referred to above and their Lordships have directed that the Government of National Capital Territory of Delhi, be informed that the High Court does not find it a fit case for the grant of prosecution sanction under Section 197 Criminal Procedure Code . and Section 19(1)(c) of the Prevention of Corruption Act in respect of Mr. B.S. Chaudhary, Additional District and Sessions Judge, Delhi."
(6) Mr. Lal argued that on earlier two occasions of Mr. D.N. Kadian, Sub Judge First Class and Mr. Gulab Tulsyani, Metropolitan Magistrate, the High Court had informed that the matter be placed before the Administrator to take action as deemed fit by him on the report of the CBI. This clearly shows that wherever the High Court was satisfied that action was called for, it did grant favourable consideration for initiation of such action. Inspite of all this, the Lieutenant Governor proceeded to grant permission to prosecute in total disregard of the opinion of the High Court. On the proceedings being initiated and preliminary objection to validity of permission coming up, the impugned order was passed. The main ground of attack was that the order of the Special Judge was erroneous as it had been passed by adopting the principles laid down in the case of K. Verraswami Vs. Union of India, . Mr. Gopal Subramaniam, arguing for National Capital Territory of Delhi stated that the principles which were laid down by the Hon'ble Supreme Court, as being applicable to the High Court and Supreme Court Judges, could not be imported and applied to the cases of lower judiciary and that this incorrect application has resulted in miscarriage of justice. He has further argued that all that Lieutenant Governor had to do was to consult the High Court before granting sanction for prosecution. Mr. Subramaniam argued that consultation could not mean concurrence. At the same time, Mr. Subramaniam conceded that the consultation has not to be a hollow expression and consultation means effective consultation, particularly when it concerns judicial officer, who happens to be under the administrative control of the High Court and is also appointed at the recommendation of the High Court. I am unable to agree with Mr. Subramaniam's contention. If the Lieutenant Governor can ignore the opinion of High Court in the matters of judicial officers, that would mean defeating in spirit the very purpose of Article 235 of the Constitution of India as would appear from the discussion hereunder. From the arguments of both Mr. Subramaniam as also Mr. Lal, who appeared for Cbi and adopted arguments of Mr. Subramaniam, the main contention was that decision in the case of K. Verraswami (supra) could not be applied to the present case. I am unable to agree with Mr. Subramaniam. Even if it is assumed that in terms the decision does not apply in toto to the subordinate judiciary, the principles laid down and contained therein certainly would be attracted when it involves judicial officers. The word "consultation" has to be assigned a meaning in the context of judiciary as distinct from that of the executive as the two cannot be treated at par in view of the role assigned to each by the constitution as would be clear from the following decisions of the Hon'ble Supreme Court.
(7) (I) In the case of Supreme Court Advocates on Record Association, , the Supreme Court observed as under:-
"THE primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India, who, is at best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. Primary to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable."
(8) (II) In the case of Baldev Raj Guliani Vs. State of Punjab & Haryana High Court, reported as 1977 (1) Scr 425, the primacy of the recommendations of the High Court made to the Governor in the scheme of the Constitution, was emphasised in the following words:-
"THE recommendation of the High Court in respect of judicial officers should always be accepted by the Governor. This is the inner significance of the constitutional provisions relating to the subordinate judiciary. Whenever in an extraordinary case, rare in itself, the Governor feels, for certain reasons that he is unable to accept the High Court's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter. It is, however, inconceivable that, without reference to the High Court, the Governor would pass an order which had not been earlier recommended by the High Court. That will be contrary to the contemplation in the constitution and should not take place."
(9) (III) In yet another case from Punjab in the case of Shamsher Singh Vs. State, , their Lordships of the Supreme Court
while considering the case of a member of Punjab Civil Service, (Judicial Branch), who was directed to be terminated consequent upon an enquiry held by the Directorate of Vigilance appointed by the Lieutenant Governor to hold an enquiry on the request of the High Court, had observed as under:-
"THE members of the subordinate judiciary are not only under the control of the High Court but are also under the case and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to have the enquiry through the Director of Vigilance was an act of self abnegation. The contention of the State that the High Court wanted the Government to be satisfied makes matters worse. The Governor will act on the recommendations of the High Court. That is the broad basis of Article 235.
(10) The members of the subordinate judiciary lock-up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Article 235 by asking the Government to enquire through the Director of Vigilance."
MR.Lal conceded that in the past whenever there `were glaring cases coming to light of some corrupt judicial officers, the High Court always agreed and consented to accord/grant permission to prosecute.
(11) It is alleged that the letting out a portion of the estate of the deceased with permission of the Probate Court was in violation of the orders of this Court. This impugned action was in violation of one of the orders passed in those probate proceedings. The said proceedings are still pending and the matter is before one of the Benches of this Court in the said probate proceedings. Mr. Subramaniam concedes that this Court is competent to take action for any breach of its orders. The question raised before this Court is whether the permission granted in the present case by Lieutenant Governor to prosecute the respondent No. 1 was validly granted. The answer to that in the light of the above discussion would clearly be in the negative. Therefore, keeping in view the law laid down by the Hon'ble Supreme Court in the cases referred to hereinabove, I am unable to fault the impugned order. The result is that this petition fails and is dismissed in limine.
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Delhi High Court
National Capital Territory Of ... vs Bhupinder Singh Chaudhry on 28 April, 1997
Equivalent citations: 1997 IVAD Delhi 16, 1997 (4) Crimes 37
(1) In this petitioner and in the connected Revision No. 164/97, National Capital Territory of Delhi and Central Bureau of Investigation respectively have challenged the same order passed by the Special Judge in C.C. No. 91/96 dated 7.12.1996 quashing criminal proceedings against the respondent in Rc 16 (A)/92-DLI under Sections 120B, 409 Indian Penal Code and 13 (2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988.
(2) In brief, the facts of the case are as under:- The respondent who is a member of Delhi Higher Judicial Service held the post of Secretary, Law and Judicial, National Capital Territory of Delhi till 28.2.1990 and was also appointed, inter-alia, as Administrator General under Section 3 of the Administrator General Act, 1963. The Deputy Administrator General was supposed to assist the Administrator General. After affording repeated opportunities to Mr. Kazim Ali Khan for handing over the charge, he failed to hand over the charge and consequently, a case bearing Rc 16 (A)/92-DLI dated 31.3.1992 under Sections 120B, 409 Indian Penal Code and 13(2) read with Section 13(1)(d) of the Prevention of Corruption Act, 1988 was registered by Cbi against Mr. Kazim Ali Khan alleging criminal conspiracy with some unknown persons to amass property for personal use or for the use of his relatives. The property in question was No. 110, Darya Ganj, New Delhi which is part of the estate of Late Mrs. Draupdi Devi. The respondent had applied to the Hon'ble High Court in 1973 for collecting and taking possession of the aforesaid property. The High Court in Probate case No. 12/71 permitted the respondent to look after the property being the Administrator General, Further vide order dated 3.10.1978, the High Court restrained the said Administrator General from letting out the said property without seeking direction of the High Court. The said Probate proceedings are still pending and the order dated 3.10.1978 is still in force. During the period when the respondent and said Mr. Kazim Ali Khan were Administrator General and Deputy Administrator General Respectively, the first floor and second floor of the property fell vacant. The said Administrator General, respondent herein is alleged to have granted the lease of the said first and second floor of the above property to Mr. S.S. Ali Khan, son of the then Deputy Administrator General, Mr. Kazim Ali without prior permission of this Court at an allegedly ridiculously low rent of Rs. 100.00 per month, though the market rent of the property was Rs. 5,600.00 per month. The petitioner has alleged that the grant of lease by the respondent was patently against the order dated 3.10.1978 which appears to be at the instance of the Deputy Administrator General. It is further alleged that both the Administrator General and Deputy Administrator General entered into criminal conspiracy with the object of causing and facilitating undue pecuniary advantage to Mr. S.S. Ali Khan. Consequently, the State Government vide letter dated 19.6.1993 consulted the High Court for sanction to initiate prosecution against the respondent under Section 19(1)(c) of the Prevention of Corruption Act. The High Court conveyed the following views to the Lieutenant Governor:-
"....THEprobate case in which Sh. B.S. Chaudhry was appointed as Administrator General by the Court is pending. This Court offers no views."
(3) As the High Court offered no views in the matter, the Lieutenant Governor of National Capital Territory of Delhi granted permission to prosecute the respondent. The said prosecution was challenged by the respondent which challenge was upheld by this Court. While disposing of the said C.W.P., the Division Bench of this Court, inter-alia, held as under:-
"BY way of abundant caution, it is made clear that our order shall not come in the way of the Lt. Governor having consultation afresh with the High Court and granting sanction afresh consistently, with the observations made and law stated hereinabove."
(4) Consequently, the Lieutenant Governor sought fresh consultation on this very point. Following receipt of the said letter, the High Court at a full Court meeting reconsidered the case and came to the conclusion that it was not a fit case for grant of permission. In the present case whatever ambiguity could possibly be construed from the words, "this Court offers no views" had ceased to exist when the entire matter was considered afresh and as a consequence of such reconsideration, it was communicated by the Registrar of this Court to the Lieutenant Governor as under:-
"I am desired to say that the matter was considered by the Hon'ble full Court of this Court and their Lordships have desired me to inform you that the High Court does not find it a fit case for grant of prosecution sanction under Section 197 Criminal Procedure Code . and Section 19(10(c) of the Prevention of Corruption Act in respect of Mr. B.S. Chaudhry, Additional District & Sessions Judge, Delhi."
(5) There appeared to be no case for the Chief Secretary to make a further reference to High Court for reconsideration after the full Court had reconsidered the matter, and conveyed its opinion in unambiguous terms. This reference to say the least was also uncalled for. Yet the Chief Secretary vide his letter dated 29.11.1995 to the Registrar of this Court sought reconsideration of the matter by full Court. The matter was reconsidered by the full Court and on 30.1.1996, the following decision was communicated :-
"....THEmatter was again considered by the full Court of this Court in its meeting held on 20.1.96 with reference to its meeting held on 20-1-1996 with reference to the request of the Government of the National Capital Territory of Delhi contained in the letter dated 20.11.95, referred to above and their Lordships have directed that the Government of National Capital Territory of Delhi, be informed that the High Court does not find it a fit case for the grant of prosecution sanction under Section 197 Criminal Procedure Code . and Section 19(1)(c) of the Prevention of Corruption Act in respect of Mr. B.S. Chaudhary, Additional District and Sessions Judge, Delhi."
(6) Mr. Lal argued that on earlier two occasions of Mr. D.N. Kadian, Sub Judge First Class and Mr. Gulab Tulsyani, Metropolitan Magistrate, the High Court had informed that the matter be placed before the Administrator to take action as deemed fit by him on the report of the CBI. This clearly shows that wherever the High Court was satisfied that action was called for, it did grant favourable consideration for initiation of such action. Inspite of all this, the Lieutenant Governor proceeded to grant permission to prosecute in total disregard of the opinion of the High Court. On the proceedings being initiated and preliminary objection to validity of permission coming up, the impugned order was passed. The main ground of attack was that the order of the Special Judge was erroneous as it had been passed by adopting the principles laid down in the case of K. Verraswami Vs. Union of India, . Mr. Gopal Subramaniam, arguing for National Capital Territory of Delhi stated that the principles which were laid down by the Hon'ble Supreme Court, as being applicable to the High Court and Supreme Court Judges, could not be imported and applied to the cases of lower judiciary and that this incorrect application has resulted in miscarriage of justice. He has further argued that all that Lieutenant Governor had to do was to consult the High Court before granting sanction for prosecution. Mr. Subramaniam argued that consultation could not mean concurrence. At the same time, Mr. Subramaniam conceded that the consultation has not to be a hollow expression and consultation means effective consultation, particularly when it concerns judicial officer, who happens to be under the administrative control of the High Court and is also appointed at the recommendation of the High Court. I am unable to agree with Mr. Subramaniam's contention. If the Lieutenant Governor can ignore the opinion of High Court in the matters of judicial officers, that would mean defeating in spirit the very purpose of Article 235 of the Constitution of India as would appear from the discussion hereunder. From the arguments of both Mr. Subramaniam as also Mr. Lal, who appeared for Cbi and adopted arguments of Mr. Subramaniam, the main contention was that decision in the case of K. Verraswami (supra) could not be applied to the present case. I am unable to agree with Mr. Subramaniam. Even if it is assumed that in terms the decision does not apply in toto to the subordinate judiciary, the principles laid down and contained therein certainly would be attracted when it involves judicial officers. The word "consultation" has to be assigned a meaning in the context of judiciary as distinct from that of the executive as the two cannot be treated at par in view of the role assigned to each by the constitution as would be clear from the following decisions of the Hon'ble Supreme Court.
(7) (I) In the case of Supreme Court Advocates on Record Association, , the Supreme Court observed as under:-
"THE primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India, who, is at best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. Primary to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable."
(8) (II) In the case of Baldev Raj Guliani Vs. State of Punjab & Haryana High Court, reported as 1977 (1) Scr 425, the primacy of the recommendations of the High Court made to the Governor in the scheme of the Constitution, was emphasised in the following words:-
"THE recommendation of the High Court in respect of judicial officers should always be accepted by the Governor. This is the inner significance of the constitutional provisions relating to the subordinate judiciary. Whenever in an extraordinary case, rare in itself, the Governor feels, for certain reasons that he is unable to accept the High Court's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter. It is, however, inconceivable that, without reference to the High Court, the Governor would pass an order which had not been earlier recommended by the High Court. That will be contrary to the contemplation in the constitution and should not take place."
(9) (III) In yet another case from Punjab in the case of Shamsher Singh Vs. State, , their Lordships of the Supreme Court
while considering the case of a member of Punjab Civil Service, (Judicial Branch), who was directed to be terminated consequent upon an enquiry held by the Directorate of Vigilance appointed by the Lieutenant Governor to hold an enquiry on the request of the High Court, had observed as under:-
"THE members of the subordinate judiciary are not only under the control of the High Court but are also under the case and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to have the enquiry through the Director of Vigilance was an act of self abnegation. The contention of the State that the High Court wanted the Government to be satisfied makes matters worse. The Governor will act on the recommendations of the High Court. That is the broad basis of Article 235.
(10) The members of the subordinate judiciary lock-up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Article 235 by asking the Government to enquire through the Director of Vigilance."
MR.Lal conceded that in the past whenever there `were glaring cases coming to light of some corrupt judicial officers, the High Court always agreed and consented to accord/grant permission to prosecute.
(11) It is alleged that the letting out a portion of the estate of the deceased with permission of the Probate Court was in violation of the orders of this Court. This impugned action was in violation of one of the orders passed in those probate proceedings. The said proceedings are still pending and the matter is before one of the Benches of this Court in the said probate proceedings. Mr. Subramaniam concedes that this Court is competent to take action for any breach of its orders. The question raised before this Court is whether the permission granted in the present case by Lieutenant Governor to prosecute the respondent No. 1 was validly granted. The answer to that in the light of the above discussion would clearly be in the negative. Therefore, keeping in view the law laid down by the Hon'ble Supreme Court in the cases referred to hereinabove, I am unable to fault the impugned order. The result is that this petition fails and is dismissed in limine.
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