BETWEEN
R.P.Luthra. …PETITIONER
AND
CBI & Ors. …RESPONDENTS
PETITION
UNDER ARTICLE 137 OF THE CONSTITUTION OF INDIA SEEKING REVIEW OF THE JUDGMENT
AND ORDER DATED 23.11.2015 PASSED BY THIS HON’BLE COURT IN SLP (Crl) NO.8687 of 2014.
TO
THE HON’BLE CHIEF JUSTICE OF INDIA
AND HIS COMPANION JUSTICES OF THE
HON’BLE SUPREME COURT OF INDIA
THE
HUMBLE PETITION OF PETITIONER ABOVE NAMED
MOST RESPECTFULLY SHOWETH
1.
The Petitioner above named
respectfully submits this Petition seeking review of the judgment and order
dated 23.11.2015 passed by this Hon’ble Court in S.L.P. (Crl) No.8687/2015.
2.
The Review Petitioner is a citizen of India and has been
practicing as a lawyer for the last 25 years.
He was Petitioner in S.L.P. No.8787 of 2015, which was disposed of without
being admitted.
3.
Though it is said that iura
novit curia – the Court knows the laws – and there is no need to plead law,
it has become imperative to briefly delve into the concept of review, for there
can be no other concept which is more misunderstood than the concept of review
as known in common law, which stands embodied in Order XLVII, Rule 1 of the
Civil Procedure Code (CPC), nay, the concept of judicial review or the concept
of appeal. It is a fundamental principle
of law that a Court or Tribunal duly constituted acting within the jurisdiction
invested in it, does not fail to exercise its jurisdiction or does not act in
excess of its jurisdiction or acts in conformity with the principles of natural
justice and not in violation of the express statutory provisions or in
ignorance thereof, can bind the parties to a dispute by its decision, whether
it decides rightly or wrongly, and its decision constitutes to be res judicata
estoppel. Stated still simply, the
concept of rule of law is founded on the principle that a Court or Tribunal
acting as aforesaid can bind the parties to a dispute even by an erroneous
decision which constitutes to be res judicata,
and unless the statute provides for an appeal, a mechanism for
correction of the decision, howsoever grave may be the error committed by the
Court or Tribunal and the injury resulting therefrom the party aggrieved by the
judgment, order or decree has to suffer, for jurisdiction means jurisdiction to
bind a party to the dispute even by an erroneous decision. That is the substance of the concept of res
judicata estoppel. The reason behind the
concept of res judicata estoppel is interesto
republico ut sit finis
litium – it is in the interest of the State that there be an end to
litigation – and nemo debet bis vexari
pro uno et eadem causa – “no individual should be sued more than once for
the same cause”.
4. While a judicial decision,
be it right or wrong, is final and binding and constitutes to be res judicata
estoppel, there is an exception to the said rule. The doctrine of res judicata applies only if
the judgment, decree or order of a Court or Tribunal is not vitiated by an
error apparent on the face of the record.
“Errors apparent on the face of the record”, contrary to the common
misconception, are errors of law and not of fact or even mixed question of fact
and law. Where a judgment, decree or
order of a Court or Tribunal is vitiated by errors apparent on the face of the
record, namely, where the a Court or Tribunal has acted beyond its
jurisdiction, nay, where it has no jurisdiction over the subject matter, nay,
where the Court or Tribunal has failed to hear the parties to the dispute or
has failed to observe the principles of natural justice or where it has acted
in ignorance or violation of express statutory provisions, the judgment, decree
or order so passed constitutes to be no res judicata estoppel. On the other hand, such judgment, decree or
order is null and void ab initio, which never ever existed in the eye of law,
stillborn and non est in law.
5.
The judgment, decree or order of a Court or Tribunal, which
was rendered without the important matter or evidence which had a bearing on
the controversy under adjudication, is no judgment, decree or order in the eye
of law and such a judgment, decree or order constitutes no res judicata
estoppel, it being rendered without the relevant evidence before it.
6. Stated in brief, the doctrine of res judicata has two exceptions,
namely, (a) where a judgment, decree or order or a Court or Tribunal is
vitiated by errors apparent on the face of the record ad where the error made
is a legal error and where the error means only an error of law, not on fact,
and (b) where a judgment on facts, which does not constitute res judicata, for
the important matter or evidence which was essential for adjudication of the
dispute, was not before the Court and the party has suffered a judgment is
guilty of no lapses or negligence because such material or evidence was
discovered subsequent to the decree and was not within his knowledge and even where
he had exercised all diligence could not have produced it before the
Court. The relief of declaration of
nullity, which the Review Petitioner seeks through the procedural remedy of
recall/review, has to be judged from the grounds on which the review could be
sought as detailed above.
7. The appellant is before this
court, just because the question of law which he raised remains to be unanswered
and is still res-integra. None of the question of law, as raised by the
appellant was answered by the High Court in it's judgment, even though the
judgment apparently is a speaking one. The unfortunate part is that the appeal
on the same judgment, being the impugned one in the instant SLP is dismissed,
without any elucidation and the question of law still remains to be unanswered.
8.
A 'speaking order' is all the more necessary in the given case because the matter involved is the corruption
at high places and certainly about the judiciary as well, and
further, because the decision, affecting the reputation dignity and
majesty of the judiciary being a sacrosanct institution, is given in a summary
manner without a hearing being allowed to the parties. A
party is entitled to know
why the decision has gone against
him. It goes
without saying that petitioner is placed under a great disadvantage if no
reasons are given and the SLP is dismissed curtly by the use of the single phrase
: “Heard the petitioner appearing
in-person. Since we find no infirmity in the impugned judgment and order passed
by the High Court, we are not inclined to exercise our jurisdiction under
Article 136 of the Constitution of India. The special leave petition is
dismissed accordingly". This will certainly be a very unsatisfactory method of dealing
with the appeal/SLP. In such a case, this Court can probably only
exercise it's revisional jurisdiction satisfactorily by examining the entire
records of the case and after giving a hearing come to its conclusion on the
merits of the appeal. Heard word is used in the judgment to indicate that the
petitioner is heard by the bench of his arguments, based upon which the
reasonings given to reach a particular conclusion, amounting to the decision of
the court. Once none of the arguments or grounds argued by the petitioner is
recorded, nor any reasoning given to substantiate the said conclusion, it
amounts to a non speaking order, and resorting to such a non speaking order in
a matter which is so important to the independence of the judiciary and its
supremacy, which is the inalienable, transcendental, and primordial basic
structure of the Constitution. Hence the use of terminology “Heard” is not
substantiated by the order of this court dated 23/11/2015. The Order gives room
for arbitrariness and bias which has creeped in even may be unconsciously.
9.
But, when the reasons given in the order of the High Court are scrappy or nebulous and this Hon’ble
Court makes no attempt to clarify the same, this Court, in revision may have
to examine the case de novo without
anybody being the wiser for the review. If the Hon’ble High Court gives a number of reasons some of which are
good and some are not, and this Hon’ble Court
merely endorses the order of the High Court without specifying those reasons which
according to it are ,sufficient to uphold the order of the High Court, this Court,
in revision, may find it difficult to ascertain which are the grounds which
weighed with this Hon’ble Court in
upholding the order of the High Court. In such circumstances, what is known as
a "speaking order" is called for. The appellant fail to see how the
power of this court can be effectively exercised under Article 136 of the
Constitution if reasons are not given in support of its order.
10. If Courts can make orders without giving
reasons, the said power in the hands of unscrupulous or dishonest judges may
turn out to be a potent weapon for abuse of power. But, if reasons for an order
are given, it will be an effective restraint on such abuse, as the order, if it
discloses extraneous or irrelevant considerations, will be subject to correction. A speaking order will at its best
be a reasonable and at its worst be at least a plausible one. The citizens of
the nation should not be deprived of this ‘only’ safeguard. The petitioner relies upon the following decisions of this Hon’ble
Court in this aspect:
a.
Harinagar
Sugar Mills Ltd v. Shyam Sunder Jhunjhunwala, AIR 1961 SC 1669
b.
Bhagat Raja v. Union of India, AIR 1967 SC 1606
c. Siemens Engineering v. Union
of India, AIR 1976 SC 1785
d. Travancore Rayon Ltd. v.
Union of India, 1978 ELT (J) 738
e. Liberty Oil Mills v. Union
of India, AIR 1984 SC 1271
f.
Raipur
Development Authority v. Chokhamal Contractors, AIR 1990 SC 1426
g. S.N. Mukherjee v. Union of India, AIR 1990 SC 1984
h. Bidhan
Nagar Salt Welfare Association v. Central Valuation Board, (2007) 6 SCC 668
11.
Though the Code of Criminal Procedure gives to the police unfettered
power to investigate all cases where they suspect that a cognizable offence has
been committed, in appropriate cases an aggrieved person can always seek a
remedy by invoking the power of the High Court under Article 226 of the
Constitution under which, if the High Court could be convinced that the power
of investigation has been exercised by a police officer mala fide, or not exercised
at all, the High Court can always issue
a writ of mandamus restraining the police officer from misusing his legal
powers or asking him to use his powers. This position has been made further
clear by this Court in its authoritative pronouncement in State of Bihar &
anr. Vs. J.A.C. Saldanha & ors. Thus:
“There is a clear-cut and well demarcated sphere of
activity in the field of crime detection and crime punishment. Investigation of
an offence is the field exclusively reserved for the executive through the
police department the superintendence over which vests in the State Government.
The executive which is charged with a duty to keep vigilance over law and order
situation is obliged to prevent crime and if an offence is alleged to have been
committed it is its bounden duty to investigate into the offence and bring the
offender to book. Once it investigates and finds an offence having been
committed it is its duty to collect evidence for the purpose of proving the
offence. Once that is completed and the investigating officer submits report to
the Court requesting the Court to take cognizance of the offence under Section
190 of the Code its duty comes to an end. On a cognizance of the offence being
taken by the Court the police function of investigation comes to an end subject
to the provision contained in Section 173(8), there commences the adjudicatory
function of the judiciary to determine whether an offence has been committed
and if so, whether by the person or persons charged with the crime by the police
in its report to the Court, and to award adequate punishment according to law
for the offence proved to the satisfaction of the Court. There is thus a well
defined and well demarcated function in the field of crime detection and it's
subsequent adjudication between the police and the Magistrate. This has been
recognised way back in King Emperor v. Khwaja Nazir Ahmad. This view of the
Judicial Committee clearly demarcates the functions of the executive and the
judiciary in the field of detection of crime and its subsequent trial and it
would appear that the power of the police to investigate into a cognizable
offence is ordinarily not to be interfered with by the judiciary.”
12. In Secretary, Minor Irrigation
& Rural Engineering Services, U.P. and Ors. Vs. Sahngoo Ram Arya and Anr. ,
this Hon’ble Court took the view that a
decision to direct an enquiry against a person can be done if the High Court
after considering the material on record comes to a conclusion that such
material does disclose a prima facie case calling for an investigation by an
Investigating Agency. This Hon’ble Court
relying upon its earlier decision in Common Cause, A Registered Society Vs.
Union of India & ors. held that a direction for investigation can be given,
if an offence is, prima facie, found to have been committed or a person’s
involvement is prima facie established.
13. In State of West Bengal &
ors. Vs. Sampat Lal & Ors. , this Hon’ble Court held that the Courts should
be prima facie satisfied that the information laid before it is of such a
nature that it calls for examination and this prima facie satisfaction may be
derived from the credentials of the informant, namely, what is the character or
standing of the informant or from the nature of the information given by him,
namely, whether it is vague and indefinite or contains specific allegations as
a result of survey or investigation or from the gravity or seriousness of the
complaint set out in the information or from any other circumstance or
circumstances appearing from the communication addressed to the court or to a
Judge of the court on behalf of the court. In the instant case, all the above
conditions are positively met. The credentials of the informant is beyond any
doubt. He is the retired judge of this Hon’ble Court.
14. The established law is that if any cognizable offence is brought to
the notice of a magistrate or any competent authority, then an investigation
shall be carried out to confirm the veracity of the same and to proceed in
accordance with law. It is the very essence of criminal inquiry. Even a
discloser statement by the accused in police custody, which is inadmissible
evidence, but a valid statement for bringing the investigating agency into
motion. In the present case it is not only the information which disclose the
commission of the cognizable offence, but also supported by the extra judicial
confession, which, is sufficient to make the investigation agency to find out
the veracity of the same. Hence the Hon’ble High Court as well as this Hon’ble
Court ought to have considered as sufficient material to direct the respondent
to investigate to reach to the conclusion about the falsity or the truthfulness
of the information and further to proceed with in accordance with law. Even if the allegations are against the
persons of high offices, there are twin objective to achieve that the concerned
person is not under the shadow of allegations, which is essential to upkeep the
dignity of the office he is holding. In contrast to that if there is an element
of truth exist in the given allegations, then there is a necessity to keep the
institution clean and fair and keep it's dignity high, by replacing the corrupt
person with a genuine person with impeccable integrity. In either way the very essence of
investigation and inquiry in to any allegations of corruption or malpractices
with respect to any high office is raised is to protect the dignity and esteem
of the said office before the public at
large. Whereas while dismissing the writ petition by the High Court, this cardinal
principle is forgotten and the allegations of cognizable offence is left
without any further investigations being made, making serious dent to the image
of the judiciary as a whole. It is the duty of the high court to upkeep the
dignity majesty of the judiciary by way of clearing the air of clouds
surrounded it by the allegations of corruption by causing an investigation. But
the high court by the impugned judgment failed miserably to discharge it's duty
to the nation as a whole to make in house cleaning. What the high court has
done through the impugned judgment is contrary to records and contrary to law
as well.
15. The court is free to err in it's jurisdiction and can even hold that
2x2=6, but if challenged shall be duty
bound to give reasons. When the judgment fails to give reasonable explanation
to such a proposition, the remedy available to the party aggrieved is to
challenge it before the appellate authority, which this Hon’ble court in this
case. This Court is also free to say that 2x2 is not 6, but 9. As long as this
is within the jurisdiction of this Court the same is binding on the parties.
But the Hon’ble Court is duty bound to reason it out. But the appeal before
this Hon’ble Court under Article 136 of the Constitution failed to make any correction
to such a magnificent failure at the hands of the Hon’ble High Court. This
Hon’ble Court enjoys an appellate jurisdiction upon the judgments of the High
Courts under Article 136 of the Constitution, which is not exercised by this
Hon’ble Court while dismissing the appeal against the judgment of the Hon’ble
High Court.
16. The given matter of national importance, as the allegations of
corruption and committing of crime which are cognizable offences involves both
judiciary and political executive. The image and reputation of the highest
court of the nation and especially the office of the Chief Justice of India are
at stake and the same are sacrosanct and valuable to the nation as a whole. An
investigation as prayed by the petitioner could have restored the damaged
reputation and lost glory of this institution as a whole, and kept the interest
of the nation above the narrow personal interests of some individuals. The
intention of the petitioner is very evident from the prayer itself that the
reputation of the institution shall be restored, by way of an investigation and
bringing to book the criminals if any in accordance with law, or else to clear
the clouds of doubts in the minds of the public at large.
17. There are many judgments by this Hon’ble Courts which lays down the
parameters of criminal investigation, especially when the higher offices of the
Nation are involved.
18. P.V. Narsimha Rao vs State (CBI/Spe) was a case in which the
parliament members voted to save the government in a no confidence motion. The
present disclosure amounts to the disclosure of other means and meddling with
the independence and supremacy of judiciary to save another government. What is elementarily required in the current
situation is investigation and not justifications nor cover ups. Any amount and
efforts of cover up can cause irreparable damage to the image and reputation of
judiciary as a whole. It is painful to
the petitioner that even this highest court of country is abetting such a crime
and trying to cover up the same without making an iota of effort to clean up
the in house mess. There is a need to come out clean, spec and clear.
19.
The petitioner is not going
deep into the Coal scam judgments on investigations, the matter being not yet
settled. But still the requirement of investigation into an allegation of
misuse of powers is very foundation of it and the same ratio and principles are
not applied in the instant case neither by the Hon’ble High Court or This
Hon’ble Court, whereas the effort should have been exemplary to clean the in
house mess of the judiciary.
20.
The disclosure through the
given blog by a former judge of this Hon’ble Court is an information in regard to the fact,
which is supposed to be the subject matter of the investigation for the
collection of evidence, and to be proved before the competent court based upon
the evidences in support of it. The basic premise is that the facts are to be
proved. The claim of the impugned judgment that the blog is only an opinion is
contrary to reason. There are a series of quotations from various dictionaries,
searching out the meaning of the terminology “BLOG” and the court came to a
unreasonable conclusion which leads to absurdity that it is only an opinion. Whereas the given
quoted meaning of the dictionaries evidently and repeatedly establishes that
the same can be an experience as well, which is most conveniently ignored by
the Hon’ble High Court leading to the absurd conclusion. Revelation of the
commission of an offence, which is a cognizable offence cannot be ignored under
the premise that the same is only an opinion. The se re not the opinion only,
but the admitted facts in the case of Shanti Bhushan and anr. Vs.Union of India and anr. (2009) 1 SCC 657. An opinion is a view or outlook by the individual on a fact. But
the disclosure of the fact itself is not an opinion and especially when it
amounts to disclosure of a cognizable offence. Disclosure of a cognizable
offence, in whatever means is a fact, which needs to be proved of it's veracity
by way of an investigation. The mode of disclosure is not a reason to declare
it as an opinion. In other words, the mode of disclosure is not the foundation
of deciding the same as opinion, but the establishment of the cognizable
offence by way of disclosure amounts to the fact which needs to be proved. In
that way, the impugned judgment is contrary to the reason and law. The dictionary meaning of experience for the
term ‘BLOG’ is conveniently shadowed in the reasoning given to establish it as
an opinion making it a colourable judgment. The unfortunate thing is that this
Hon’ble Court also endorsed the same view, without resorting to correct the
error committed by the Hon’ble High Court, by dismissing the SLP, even without
recording any reasons. The order tantamount to supporting the judges, who are
not having basic knowledge in jurisprudence or is hand in glue with the
corruption and criminal activities.
21.
Even when the order says that
the party in person is ‘heard’ none of his arguments are forming the part
of the order, and hence the usage of the
term ‘Heard’ is without any manifestation of fairness. Once the Court hears the
parties, the very essence of hearing shall be made part of the record, so that
the judgment/order forms a speaking order. Once none of the contentions are recorded,
and reasoning not given for rejecting it, the terminology used as ‘ heard’
is not in accordance with equity,
justice and good conscious. As the order dismissing the SLP is not disclosing
any averments or arguments of the party in person or the reasons to dismiss the
same, even when the issues raised in the said SLP is of National importance
amounts to travesty of justice and hence amounts to sham. The fact remains that
no amount of cake can convert a piece of cow dung into a cake! No amount of
silence can conceal the dirt sticking into this holy institution which so
indispensable for the sustenance of democracy of the Nation.
22.
Once the commission of a
cognizable offence is disclosed, the very premise is that it to be inquired by
the competent agency and dealt with in accordance with law for the time being
in force.
23.
Only the President of India and
the Governors of the state are exempted from criminal prosecution, by virtue of
legal protection. But still they are not protected by virtue of such an immunity.
It’s only a protection from undue harassment or to protect the individual being
done something with bone fide intentions cannot be harassed unduly. But the fact remains that even the said
individual are not protected for their malafide actions, and criminal conduct,
if any, they have committed. The
impeachment proceedings and subsequent criminal proceedings can be a prudent
course of action in case of president and in case of the Governor, removal by the
President. But this impugned judgment
gives unlawful protection to the persons involved in the corruption, may be
because the names of judges are also involved in the same. The question then
arises is that, ‘are the judges above the law?’. The law of equity says, as
Lord Denning quoted in 20th Century, that ‘let you of any high, the law is above
you’. Whereas the impugned judgment places the class of judges as persons above
law, who cannot be inquired into even if cognizable offence is alleged to be
committed by them. It gives the judges of the Indian Judiciary a divine
authority that their actions, even though however criminal or illegal it is
shall not be inquired into or put to the mechanism of law. They are par above
law, as the impugned judgment establishes and endorsed by this hon’ble court by
a single syllable judgment.
24.
Whereas, saving or protecting an
offender is an offence in itself amounting to abetting. The impugned judgment
when amounted to such an abetting of offence, the last resort was this Hon’ble
Court, under Article 136 of the Constitution, whereas this Hon’ble court also
miserably failed the Constitution and Criminal Procedure Code, inter alia
defeating the nation itself.
25.
The gist of the allegations in the writ petitions is that Government
agencies like the CBI and the revenue authorities had failed to perform their
duties and legal obligations inasmuch as they had failed to investigate matters
arising out of the blog by the former Judge of this Hon’ble Court ; that the
allegations of illegal gratification and political pressure by clandestine and illegal means using
political muscle flexing; that this had also disclosed a nexus between
politicians, judges and criminals, who were
hand in glove in unlawful means,
given for unlawful consideration that the CBI and other Government agencies had
failed to investigate the matter, take it to its logical conclusion and
prosecute all persons who were found to have committed an offence; that this
was done with a view to protect the persons involved, who were very influential
and powerful; that the matter disclosed a nexus between crime and corruption at
high places in public life and it posed a serious threat to the integrity,
security and economy of the nation; that probity in public life, the rule of
law and the preservation of democracy required that the Government agencies be
compelled to duly perform their legal obligations and to proceed in accordance
with law against every person involved, irrespective of where he was placed in the political judicial
hierarchy. The writ petitions prayed, inter alia, for the said reliefs.
26.
The sum and substance of these prayers is that the CBI and other
Governmental agencies had not carried out their public duty to investigate the
offences disclosed; that none stands above the law so that an alleged offence
by him is not required to be investigated . Having
regard to the direction in which the investigations were not initiated, the
petitioner finds it necessary to direct the CBI to investigate the alleged commission of cognizable
offences and crimes to eliminate any impression of bias or lack of fairness or
objectivity and to maintain the credibility of the investigations.
27.
The impugned judgment is founded upon the
decision of this Hon’ble Court in Shantibhushan Vs. UOI which is totally upon a
different footing and in no way answering any of the questions raised by the
petitioner. Application of the said ratio on a totally unintended context make
the impugned judgment per incurium. The quoted judgment itself is founded upon
a wrong footing to the extent that the wrong appointment is allowed to
continue on the ground that only two
months are left for the retirement of the concerned judge, and no further
investigation is required. The said premise and ratio also leads to absurd
premise that the criminal can be let off the legal consequences based upon the
time factor. It amounts to accepting the preposition that the commission of
crime is not the basis of prosecution, but other extraneous considerations. Or
else the concept of rule of law is not applicable to the judges and judiciary. amounting to Res-integra and not a
Res-judicata or precedent.
28.
The petitioner is asking a
question to himself, is the judiciary not going to take any action against the
corrupt judges, who has committed even cognizable offences or crimes? The intention
of the petitioner is simple that such a wrong precedent cannot go on record,
giving an undue protection to the judges, making them capable of causing gross
abuse of the powers invested in them, without any checks and balances. The petitioner raises the doubt that the
judges are humans or of divine authority as such? Are they above law or law unto themselves? Does it mean that the judiciary is not having
faith in it's own system, as the judges are reluctant to face the courts and
clear their names when controversies or allegations of corruption and crimes
emerges? How can it expect the people at large can have faith in it?
29.
The protection of corruption
given to the judges and the members of judiciary is condemning the Citizen’s
rights and interalia, disrespecting the constitution who are duty bound to
protect the constitution and the rights of the citizens. The petitioner intend
to make an end to the corruption in the judiciary which makes the poor man
being left with no remedy. If the
persons holding the office of the highest judiciary has no respect of law and
further protect and hide the corrupt and their practices, it amounts to the
violation of the oath of office and
stands against the constitutional ethos.
30.
Power corrupts and absolute
power corrupts absolutely. The present powers as enjoyed by the judges and
judiciary are unfettered, tyrannical and unaccountable creating an opaque
system. The effort of the petitioner is
to throw some light into the dark trenches of power.
31.
In the issue of Jain Hawala
case (Vineet Narain & Others vs Union Of India & Another on 18
December, 1997) this Hon’ble Court held as follows:
“The It is alleged that the apprehending of certain
terrorists led to the discovery of financial support to them by clandestine and
illegal means, by use of tainted funds obtained through 'havala' transactions;
that this also disclosed a nexus between several important politicians,
bureaucrats and criminals, who are all recipients of money from unlawful
sources given for unlawful considerations; that the CBI and other Government
agencies have failed to fully investigate into the matter and take it to the logical
end point of the trail and to prosecute all persons who have committed any crime;
that this is being done with a view to protect the persons involved, who are very
influential and powerful in the present set up; that the matter discloses a
definite nexus between crime and corruption in public life at high places in
the country which poses a serious threat to the integrity, security and economy
of the nation; that probity in public life, to prevent erosion of the rule of
law and the preservation of democracy in the country, requires that the
Government agencies be compelled to duly perform their legal obligations and to
person in accordance with law against cach and every person involved,
irrespective of the height at which he is placed in the power set up. The facts
and circumstances of the present case do indicate that it is of utmost public
importance that this matter is examined thoroughly by this Court to ensure that
all Government agencies, entrusted with the duty to discharge their functions
and obligations in accordance with law, do so, bearing in mind constantly the concept
of equality enshrined in the Constitution and the basic tenet of rule of law:
"Be you ever so high, the law is above you".
Investigation into accusation made against each and every person on a
reasonable basis, irrespective of the position and status of that person, must
be conducted and completed expeditiously. This is imperative to retain public
confidence in the impartial working of the Government agencies. In this
proceeding we are not concerned with the merits of the accusations or the
individuals alleged to be involved, but only with the performance of the legal
duty by the Government agencies to fairly, properly and fully investigate into
every such accusation against every person, and to take
the logical final action in accordance with law. In case of persons against
whom a prima facie case is made out and a charge sheet is filed in the
competent court, it is that court which will then deal with that case on
merits, in accordance with law. However, if in respect of any such person the
final report after full investigation is that no prima facic case is made out
to proceed further, so that the case must be closed against him, that report
must be promptly submitted to this Court for it's satisfaction that the
concerned authorities have not failed to perform their legal obligations and
have reasonably come to such conclusion. No such report having been submitted
by the CBI or any other agency till now in this Court, action on such a report
by this Court would be considered, if and when that occasion arises. We also
direct that no settlement should be arrived at nor any offence compounded by
any authority without prior leave of this Court. We may add that on account of
the great public interest involved in this matter, the CBI and other Government
agencies must expedite their action to complete the task and prevent pendency
of this matter beyond the period necessary. It is needless to observe that the
results achieved so far do not match the available time and opportunity for a
full investigation ever since the matter came to light. It is of utmost
national significance that no further time is lost in completion of the task.
"
32.
The judiciary is always in the forefront to preach propriety in the
public offices when it comes to executive and political authorites. There are catena
judgments which declare that the holders of public offices, like ceasor’s wife
shall be above suspicion. Once it is not applicable to the judiciary, it
remains to be the chastity preaching of the prostitute.
33.
The words of Jesus Christ “Thou hypocrite,
first cast out the beam out of thine own eye; and then shalt thou see clearly
to cast out the mote out of thy brother's eye”
is as applicable to even the judges of the Highest Court of the land as well, in the present
context. The petitioner relays on the judgment of this Hon’ble Court dated 10.12.2015
on the Yogendra Kumar Jaiswal and Ors. Vs. State of Bihar and Ors. in which it
is quoted as “Corruption, a 'noun' when assumes all the characteristics of a
Verb', becomes self-infective and also develops resistance to antibiotics. In
such a situation the disguised protagonist never puts a Hamletian
question-"to be or not to be"-but marches ahead with perverted
proclivity-sans concern, sans care for collective interest, and irrefragably
without conscience. In a way, corruption becomes a national economic terror.
This social calamity warrants a different control and hence, the legislature
comes up with special legislation with stringent provisions. The law having been
enacted, there is a challenge to the constitutionality of the provisions. That
is the subject matter of these appeals, for the judgments rendered by the High
Courts of Orissa and Patna are under assail herein.” The need of the hour is to
put this ratio and others as laid down by this Hon’ble Court vide the above
mentioned judgment in to action in the case of corruptions and allegations of
corruption in judiciary as well where the names of the judges are involved in
corruption.
34.
Thus, being aggrieved by the aforesaid
judgment and order of this Hon’ble Court dated 23.11.2015, the Petitioner has
preferred the present Petition under Article 137 of the Constitution of India.
35.
The Petitioner is desirous of
filing the present Petition on the following other -
G R O U N D S
Grounds in support of the reliefs sought for are
fairly elaborated in the statement of facts above and hence are not
repeated. The Review Petitioner
respectfully submits that paragraphs 2 to 13 hereinabove may be read and
treated as the grounds in support of the instant Writ Petition.
A.
The impugned judgment is erroneous on the face of it as even the ordinary people with basic
intelligence knows the difference between the opinion and information. The
Impugned judgment has erroneously quoted the judgment of Shanti Bhushan and
anr. Vs.Union of India and anr. (2009) 1 SCC 657, which had laid a totally
different ratio, on some other grounds, which are not at all in question with
the present issues. Further the disclosure of the commission of the cognizable
offence is made trivial by the order of the Hon’ble High Court saying it is
only an opinion, whereas the meaning of the terminology blog always shows that
it includes the personal experience also, and the elementary fault by the judges of Hon’ble High Court in not
appreciating the said disclosure as his personal experience, thus making it a
trivial issue, even though it is adversely affecting the reputation and dignity
of judiciary as a whole and inter alia the National interest. The glaring
dearth of the Hon’ble High Court is endorsed by this Hon’ble Court vide the
order and judgment dated 23.11.2015, which is passed without hearing the
petitioner, nor appreciating the grounds and issues, raised by him, not
recording any of the contentions and arguments raised and without giving any
reasoning to the issues and questions of law as raised by the petitioner,
dismissed the SLP in limine. The matter involves the disclosure of corruption
at the high offices, and the matter cannot be covered under the carpet, but the
people of the Nation has the solemn right to know, what is happening with the
national institutions. The need for the
investigation when the commission of a cognizable offence is disclosed is the
very foundation of rule of law, upon which the Hon’ble High Court has erred and
this Hon’ble Court by its silence has endorsed the same. Hence this petition
for review of the given order and judgment dated 23.11.2015.
B.
Taking the order of the High Court of Delhi itself in -Court on its own
motion Vs. Union of India through Ministry of Urban Development and Ors.
in WP(C) 2345/2014 CM No. 5406/2015 the
Hon’ble High Court took suo moto action upon the letter by the Judge of this
Hon’ble Court, J.Kurian Joseph and acted upon the said letter, without treating
the same as letter petition, and by engaging the amicus curie. The said
precedent is failed to be followed in the matter of the instant case, even
though the informant is the former judge of this Hon’ble Court. The only
difference of the matter is that one is addressed to the High Court and the
other is addressed to the world at large. But even in a case of children’s park
and its toys, the Hon’ble High Court has taken suo moto action making it serious,
and un pardonable, the same court at the same vain rejected the contention that
the corruption at the high offices, and judiciary which is causing serious
damage to the reputation of the Judiciary as a whole is not acted upon, which
itself can cause the reputation and honour of this institution being seriously
compromised, that too have been approved by this Hon’ble Court silently, by the said non
speaking order. The silence of this Hon’ble Court is hampering the reputation
and prestige of this august institution and the majesty of this seat of
justice. This is approving the corruption and abetting
the same in the judiciary, making the impugned judgment unconstitutional. The
order passed by this Hon’ble Court in that vein is non est in the eyes of law. Hence the petitioner
approaching this Hon’ble Court under the only remedy available through review,
technically, even though factually this is original petition. The copy of the
said judgment and order by Hon’le High Court of Delhi, dated 16.04.2014
and followed up by orders dated 16.07.2014,13.08.2014,29.10.2014 in Court on
its own motion Vs. Union of India through Ministry of Urban Development and Ors.
in WP(C) 2345/2014 CM No. 5406/2015 is produced hereby and marked as Annexure-‘A’(Collectively).
C.
Even going by the precedent of the High Court of Delhi, in Court of its
own Motion Vs. E.N. Communications Pvt.Ltd. and Ors. in Case CONT CAS.(CRL)
10/2014 the Hon’ble High Court had taken suo moto action against the publisher
of the news, India Legal Magazine, based upon the publishing done in the
magazine, which caused serious compromise to the reputation of the judiciary,
even though the said article was exposing the nexus of the relatives of the
sitting judge of the Hon’ble High Court. The extend of judicial action, which
is against the principles of natural justice, which says, no man shall be a
judge of his own cause, has proceeded in the same matter, where the allegations
where against the illegal and unethical practices of the said judge and his close
relatives, making him not a judge at all as the case involved his own interest.
The second
principle of natural justice namely, nemo debet bis vexari pro uno et eadem
causa or nemo iudex in sua causa or nemo debet esse judex in propria causa – no
one can be judge in his own cause – is
violated by the said Judge, making the said judgment and order, again non est
in the eyes of law. Still the
cognizance of the news article published was taken suo moto by the same judge
against whom the allegations are made. The intentions of the actions in the
given case and the instant petition are the same by the Hon’ble High Court, to
suppress the truth, hide the corrupt, and promote the corruption, ignoring and
threatening the whistle blowers. This Hon’ble Court by the order dated
23.11.2015 approved and made it a law of the land under Article 141 of the
Constitution to suppress the truth and promote the corruption in judiciary, and
thus compromising upon the reputation and dignity of this sacrosanct
institution.
D. The words of Jesus Christ “Thou hypocrite, first cast out the beam
out of thine own eye; and then shalt thou see clearly to cast out the mote out
of thy brother's eye” is as applicable
to even the judges of the Highest Court of
the land as well, in the present context. The petitioner relays on the judgment
of this Hon’ble Court dated 10.12.2015 on the Yogendra Kumar Jaiswal and Ors.
Vs. State of Bihar and Ors. in which it is quoted as “Corruption, a 'noun' when
assumes all the characteristics of a Verb', becomes self-infective and also
develops resistance to antibiotics. In such a situation the disguised
protagonist never puts a Hamletian question-"to be or not to be"-but
marches ahead with perverted proclivity-sans concern, sans care for collective
interest, and irrefragably without conscience. In a way, corruption becomes a
national economic terror. This social calamity warrants a different control and
hence, the legislature comes up with special legislation with stringent
provisions. The law having been enacted, there is a challenge to the
constitutionality of the provisions. That is the subject matter of these
appeals, for the judgments rendered by the High Courts of Orissa and Patna are
under assail herein.” The need of the hour is to put this ratio and others as
laid down by this Hon’ble Court vide the above mentioned judgment in to action
in the case of corruptions and allegations of corruption in judiciary as well
where the names of the judges are involved in corruption. As the judgment and order Decided On:
10.12.2015 in the case of Yogendra Kumar Jaiswal and Ors. Vs. State of Bihar and Ors. in Civil Appeal Nos. 6448-6452, 6460 of 2011,
Criminal Appeal Nos. 360-378, 385-386, 387, 388, 379-384, 389, 390, 1371, 1372
of 2012, Criminal Appeal No. 1678 of 2015 (Arising out of SLP (Crl.) No.
4558/2012), Criminal Appeal No. 1679 of 2015 (Arising out of SLP (Crl.) No.
3084/2013) and Criminal Appeal No. 1680 of 2015 (Arising out of SLP (Crl.) No.
3085/2013), which is subsequent to the impugned order dated 23.11.2015, of this
Hon’ble Court, the said ratio laid down in the said judgment is liable to be
applied to the instant case as well. This stands as one of the grounds for the
review of the instant order dated 23.11.2015.
E. The
judgement in which review has been
sought by means of the present review petition has been delivered by a bench
that also included Hon'ble Mr. Justice H. L. Dattu (now retired, herein, Dattu,
J.). It is most respectfully submitted that the
blog that led to the writ petition has been penned by Justice Markandey Katju
(retired Supreme Court Judge). In the same blog, he has also laid bare
extensive allegations of corruption against Dattu, J. An extract of the blog to
that effect is appended hereto, and is marked as Annexure 2. This
being so, Dattu, J. was disqualified from hearing the SLP, as he undoubtedly
had a natural bias against setting aside the impugned judgement of the
honourable High Court, because if he were to do so, it could also open the
floodgates for investigation also against his own self, given that his name
also has been figuring prominently in the same blog for reasons of not mere
corruption, but for "massive corruption". On
this ground alone, the order of this honourable Court which is sought to be
reviewed and recalled is, in legal fact, a "nullity" in law, and
void ab initio as if non-est, as it suffers from
the affliction of a violation of one of the most cardinal principles of natural
Justice i.e. namely, nemo debet bis vexari pro uno et eadem causa or nemo iudex
in sua causa or nemo debet esse judex in propria causa – no one can be judge in
his own cause.
F. That yet
another round for review and recall of the order passed by this honourable
Court is that this court has not appreciated that the order of the High Court
impugned before this honourable Court reflected a patent lack of application of
judicial mind. This conclusion follows because the High
Court did not come to the conclusion that the blog attributed to Justice Katju
was a hoax, and in fact, was penned by someone
else. This being so, and for its
reasoning and rationale to be consistent de hors the stature
of the allegedly-offending citizen before it, if the High Court was of the view
that the contents of the blog were only an "opinion", meaning, a
"murmuring" not worthy of judicial recognition to trigger an
investigation, at the same time, it chose not to initiate any action against
Justice Katju. In other words, this
honourable Court, while refusing to interfere in the impugned judgement of the
High Court, has granted "Open General Licence" to any and every
person to call judges of India corrupt, so long as he does it in the form of a
blog. As this proposition is causing serious denture to the reputation and
image of the judiciary of the nation the said judgment and ratio cannot be
allowed to sustain and hence this review petition, to declare the said order
non est in the eyes of law.
G. Furthermore,
by not taking action against the petitioner for having got activated into the
filing of a writ petition based on the contents of the blog (meaning,
"echoing" the contents of the blog, and/or "disseminating"
for wide public consumption the contents of the same blog), this court has
granted, similarly, "Open General Licence" to any and every person to
make allegations even inside the court, so long as he is "quoting"
the contents of a blog. Whereas, in a recent case
involving a lady advocate (one Seema Sapra) who called a sitting judge of the
Delhi High Court (Vibhu Bakhru, J.) "corrupt", a Division Bench of
the Delhi High Court has deemed it fit to sentence her to 1 months imprisonment,
and also, banned her from exercising her statutory - even fundamental - right
to practice the profession of her choice (as an advocate) for two
years. In other words, in the case of the
petitioner's writ petition, no action was taken by the Delhi High Court against
an exalted dignitary such as Justice Markandey Katju (but nor against the
"ordinary" petitioner, either) for stating - or (in the
petitioner's case) "echoing" / "disseminating" - that a
certain named judge is corrupt, whereas, in the case of another advocate,
merely for saying that a particular judge is corrupt, she has been sentenced to
prison. Perhaps the mistake that lady
advocate made was that she foolishly attributed the word "corrupt" to
herself, when what she ought to have done is to have caused the creation of a
blog and put the same allegation on the blog, and then stated in open court
that she is referring to Vibhu Bakhru (J.) as corrupt only because so-and-so
blog says so. Such an approach on the
part of the Delhi High Court is either arbitrary, or is discriminatory, or
both. In fact, it is worse, as it is a
consciously-exercised "capricious" use of discretion
in order to save, inter alia, a named offender from the punishment
lawfully due to him merely because he holds a similar Constitutional post as
the Judges who passed the impugned order, which itself is an offence under
sections 217-218 of the Indian Penal Code on the part of the two High Court
Judges that passed the order impugned before this honourable
Court. Adoption
of double standards is not expected out of the sacrosanct institution which is
the temple of justice. Independence of judiciary and supremacy does not mean,
there can a slaughter house be opened. The double standards exposed by this order and
the silence of this Hon’ble Court is slaughtering of the Rule of law and
constitutional mechanism. But this honourable Court cannot have it both
ways i.e. that it will neither interfere in the judgement of the Delhi High
Court impugned by the petitioner before this honourable Court, and will also
remain a mute spectator in the case of advocate Seema Sapra.
H. The
intention of the petitioner is to cause cleaning up of the judicial system by
the judicial order passed by this Hon’ble Court, before the virus of the
corruption grows into cancer demanding amputation and resultant death. If the
judiciary continues to fail to act in accordance with law, it can lead to
jungle raj and destruction of nation. The democratic organs and system will be
under serious threat. Hence the instant review petition.
PRAYER
It is, therefore, most respectfully prayed that
this Hon’ble Court may graciously be pleased to take recourse to the procedure
of review and:
a)
declare that the
judgment and order dated 23.11.2015
passed by this Hon’ble Court in S.L.P. No.8687/2015, unconstitutional and void;
b)
declare that the
instant Review Petition, which though filed as a petition for review, is
indeed, an original proceeding as the petitioner has not been heard and no reasoning
given for the dismissal of the same in the light of the declarations sought for
as above in the open Court;
d) pass any such other order or
orders/directions as this Hon’ble Court may deem fit and proper in the interest
of justice.
DRAWN FILED
BY
(A.C.Philip)
(R.P.Luthra)
