2006 Supreme(SC) 746

2006(6) Supreme 614
SUPREME COURT OF INDIA
(Under Art. 32 of the Constitution of India)
K.G. Balakrishnan, Dr. AR. Lakshmanan and S.H. Kapadia, JJ.
Rajiv Ranjan Singh ‘Lalan’ & Anr. — Appellants
versus
Union of India & Ors. — Respondents
Writ Petition (Crl.) Nos. 197-198 of 2004
Decided on 21-8-2006
Counsel for the Parties :
For the Appellants : Mukul Rohtagi, Kailash Vasudev, Sr. Advocates, Gopal Singh and Saurarb Kirpal, Advocates.
For the Respondents : G.E. Vahanvati, S.G. Mohan Parasaran, A.S.G., Ram Jethmalani, Sr. Advocate, P.H. Parekh, E.R. Kumar, Mrs. Shakum Sharma, Ms. P.R. Mala, Michale Peter, Chitranjan (for M/s. P.H. Parekh & Co.), B.V. Balaram Das, Ms. Sandhya Goswami, Hrishikesh Baruah, Devdatt Kamat, Chinmoy Sharma, Ms. Suruchi (for P. Parmeswaran), Advocates.

IMPORTANT POINTS
1. Filing of Public Interest Litigation in the criminal prosecution would only deny a fair trial to the accused and this unnecessary interference in the criminal case may cause, sometimes damage to the prosecution case and at times may cause serious prejudice to the accused also.
2. The Supreme Court cannot go into the question of appointment of a Special Judge, CBI which is exclusively within the domain of the High Court under Article 235 of the Constitution.
3. In the Fodder Scam Case, Public Interest Litigation filed by the Members of Parliament alleging various irregularities in the criminal prosecution against the former Chief Ministers of the State of Bihar, being not supported by materials, were held liable to be dismissed.

Headnote:(i) Prevention of Corruption Act, 1988 — Section 13(1)(e), 13(2) — Constitution of India — Article 32 — Public Interest Litigation — Fodder Scam Cases — Allegations of large scale defalcation of public funds and falsification of accounts involving hundred of crores of rupees in the Department of Animal Husbandary in State of Bihar — Pursuant of these allegations several cases were registered by the police and investigation of these cases was later handed over to the Central Bureau of Investigation — Petitioners who were Members of Parliament at the time of filing of petitions alleged that consequent upon change of the Government in the Centre, attempts have been made to delay and interfere with the judicial process — It was alleged that the Public Prosecutors who were handling the cases were removed and to protect interests of respondents convenient prosecutor was appointed — Petitioners alleged that certain income tax cases were pending before the Income Tax Appellate Tribunal — Allegations of replacement of its Member to help respondents 4 and 5 — Prayer made for monitoring the conduct of trials — Whether any irregularities have been committed in the matter of disposal of cases by Income Tax Appellate Tribunal, Patna — (No) — Whether there is any illegality or serious infraction of any procedure in the appointment of present CBI (Special Judge) — (No) — Whether bail granted to respondents 4 and 5 is liable to be set aside — (No).

       As per K.G. Balakrishanan, J.

       Held : The allegations made by the petitioners that there were serious irregularities in disposing of the cases of respondent Nos. 4 and 5 are not factually correct. The very foundation of the allegation is that Shri Tyagi, member of the Appellate Tribunal was transferred from Patna to Delhi at a time when he was hearing appeals is factually incorrect. It is also not correct to say that appeals were disposed of by the member of the Tribunal who was on the verge of retirement. The petitioners could not point out any procedural irregularity in the manner in which these appeals were disposed of. After going through the affidavits and reports and various other papers, we are satisfied that the allegations made by the petitioners are not true. The petitioners have prayed that this Court should direct the authorities to file appeal against the orders passed by ITAT in the cases of respondent nos. 4 and 5. In a collateral proceedings like this, the petitioner cannot seek any remedy of Writ of Mandamus directing the authorities to file appeals against such orders. An appeal is a statutory remedy available to the Department and the third party like Writ Petitioner cannot seek such remedies in collateral proceedings like this. Moreover, the petitioners could not point out anything to show that there were serious procedural irregularities on the part of the Department in not filing the appeal. The Department had taken opinion of the Central Board of Direct Taxes as well as the Ministry of Finance and the Ministry of Finance had sought the opinion of the Ministry of Law. The petitioners have not made any specific allegation that these decisions were taken at the behest of respondent nos. 4 and 5 or any undue influence was exerted to take such decisions. The allegations made by the petitioners are vague and indefinite. Therefore, the prayer for Writ of Mandamus to direct the respondent nos. 1 to 3 to file an appeal against the ITAT orders cannot be allowed and is liable to be rejected.(Para 14)

       We have perused the Confidential Register of Shri Muni Lal Paswan which was made available to us. Of course, the Confidential Register of this Officer was available only upto 2003. For some period, he was working on deputation and the inspecting judge had not recorded the confidential registers for that period, though the confidential registers of other officers were available to the Standing Committee. The Confidential Reports of Shri Muni Lal Paswan from 1981 to 2003 have been produced in Court. We have perused the Confidential Register of this Officer and it has been repeatedly recorded that this Officer has maintained phonesty and integrity during the period under report. About his conduct and integrity, nothing adverse is reported against him. Of course, in some of the years, this Officer has been graded as Category B with regard to his judicial performance. These are all matters considered by the Standing Committee which consists of senior judges of the High Court. The appointment of this Officer is not challenged by the petitioners and no pleadings also made in the main Writ Petition. By filing a Criminal Miscellaneous Application, the petitioners have made series of allegations which are not borne out by any records. If at all, the petitioners had any grievance regarding the appointment of any particular Officer, the proper remedy was to approach the High Court and to bring this fact to the notice of the Chief Justice. Under the above circumstances, we do not find any material on record to show that there was any illegality or serious infraction of any procedure in the appointment of the present CBI (Special Judge), Patna and the appointment as such cannot be challenged in a collateral proceedings and this Court cannot go into the question of appointment of a Special Judge which is exclusively within the domain of the High Court under Article 235 of the Constitution. Therefore, the oral appeal of the petitioners for the change of the Officer of the Special Judge cannot be granted.(Para 16)

       In the instant case, the petitioners have approached this case by filing this public interest litigation under Article 32 of the Constitution at the time when the recording of the prosecution evidence was almost over and the trial of the case reached a final stage. If at all, the petitioners had any grievance regarding the removal of the public prosecutor, they should have submitted their grievance before the Special Judge or before the High Court. It is already noticed that the petitioners had no direct connection with this case. They were absolutely strangers as regards the criminal cases against respondent Nos. 4 and 5 which was pending before the Special Judge. This unnecessary interference in the criminal case may cause, sometimes, damage to the prosecution case and at times may cause serious prejudice to the accused also. In any view of the matter, this sort of interference in the criminal prosecution would only deny a fair trial to the accused.(Para 24)

       As per Dr. AR. Lakshmanan, J. [Concurrent Judgments]

       Once a charge-sheet is filed in the competent Court after completion of the investigation, the process of monitoring by this Court for the purpose of making the CBI and other investigative agencies concerned perform their function of investigating into offences concerned comes to an end and thereafter, it is only the Court in which the charge-sheet is filed which is to deal with all matters relating to the trial of the accused including matters falling within the scope of Section 173(8). (Para 44)

       We respectfully agree with the above view expressed by this Court. In our view, monitoring of pending trial is subversion of criminal law as it stands to mean that the Court behind the back of the accused is entering into a dialogue with the investigating agency. Therefore, there can be no monitoring, after the charge sheet is filed. (Para 45)

       It is also settled law that appointment of advocates, public prosecutors etc. is the prerogative of the government in power and court has no role to play.(Para 58)

       In the above case, the Standing Committee has taken a decision to appoint Munni Lal Paswan and other officers after scrutinizing the records, ACRs etc. in accordance with Article 233 and 235 of the Constitution of India which is the prerogative right of the Standing Committee and the High Court and when a decision is taken it is not for this Court to scrutinize the correctness of the decision that too at the instance of third parties. (Para 59)

       It is thus seen that the Government of India has taken into consideration the views of the Ministry of Law, Ministry of Finance to the effect that no substantial questions of law arise out of the judgments of the ITAT in the case of respondent Nos. 4 and 5 for filing appeals before the High Court and that instructions were issued that appeals would not be filed in respect of those cases. (Para 63)

       Certain allegations have been made against CBDT and the Public Prosecutors, Members of the Income-tax Tribunal etc. None of them were made parties before us. Therefore, the allegations made against them are one-sided and cannot be looked into at all. We cannot also say that all these authorities have acted in a mala fide manner. (Para 64)

       As per S.H. Kapadia, J. [Minority Judgment]

       The facts of the case of the assessee, Smt. Rabri Devi, are as follows: On 14.10.1996 the assessee filed voluntary returns for assessment years 1995-96 and 1996-97. On 14.11.1996 she filed voluntary returns for assessment years 1986-87 to 1994-95 declaring various incomes which had escaped assessment as she had not filed her returns earlier. The assessee also applied for waiver of interest and penalty under Section 273A of the I.T. Act. In the voluntary returns, the assessee disclosed income derived from dairy farming, agriculture and rent from house property. Upon receipt of returns for the assessment years 1995-96 and 1996-97 the Assistant Commissioner of Income Tax issued notice of defecting returns under Section 139 of the I.T. Act in which it was alleged that regular books of accounts were not maintained; that, return was not accompanied by a statement indicating the amount of turn-over, gross receipts, gross profits and net profits from business/profession. The assessee also received notices under Section 148 of the I.T. Act for the period 1986-87 to 1994-95. The Assessing Officer recorded the reasons for reopening the assessment for each of the above years.(Para 87)

       Arguments have been vehemently advanced on behalf of respondent No.1 saying that these petitions need to be dismissed as the petitioners have made irresponsible statements against judicial officers and members of the Tribunal whose service records are sought to be tarnished. Applying the same yardstick one fails to understand as to why the Revenue has not moved in appeal even when its own higher officers are branded as biased in deciding matters against respondent Nos.4 and 5. Their service records are as important as the service records of members of the trial court or the judicial officers. (Para 93)

       It is important to bear in mind that in the matter of economic scams be it security transactions or fodder scams or Taj corridor it is the economic interest of the country which is at stake. These cases are highly complicated in which complicated questions are involved and, therefore, posting plays a vital role. (Para 105)

       In the circumstances, it seems that the procedure followed by the High Court in the meeting on 22.06.05 has lost sight of the above criteria. In the circumstances, a request is being made to the Chief Justice of the Patna High Court to convene an urgent meeting of Administrative Judges and complete the exercise of giving appropriate gradation/categorisation after looking at the judgments and orders delivered by the concerned judge, Mr. Paswan. I may make it clear that this is just a request to the High Court and not a direction so that the evaluation standards are commonly applied to all the three candidates.(Para 106)

       Before concluding it may be pointed out that this decision is confined strictly to the decision-making process and it is not concerned with the merits of the allegations made in the petitions. The allegations made in the petitions are not only against the accused, they are also directed against number of functionaries. It is, therefore, made clear that this decision is only to rectify the procedure of decision-making at the High Court level and at the Revenue level so that in future such anomalies do not arise. (Para 107)

       To sum up, the Chief Justice of the Patna High Court is requested to convene a meeting of Administrative Judges and have a fresh look at the evaluation in the case of posting of Sri Paswan as Special Judge for C.B.I. (Fodder Scam Cases) at Patna, vide Minutes of Meeting dated 22.06.2005. At the same time, Union of India is directed to reconsider approaching the High Court against the decision of the Tribunal dated 2.7.2004 under Section 260A of the Income Tax Act, 1961 in the light of what is stated above.(Para 108)

       (ii) Constitution of India — Article 32 — Public Interest Litigation — Maintainability — Corruption case — Criminal litigation exclusively between respondents 4 and 5 former Chief Ministers of State of Bihar and the State — Whether in a case of this nature, public interest litigation is maintainable — (No) — It would only hamper the course of justice and may cause prejudice to the accused by denying a fair trial.

       As per K.G. Balakrishanan, J.

       Held : The learned Counsel for the respondent Nos. 4 and 5 submitted that the original petition is a politically motivated move to malign respondent nos. 4 and 5 and this sort of public interest litigation should not be entertained by the Court and placed reliance on the series of decisions passed by this Court. It may be noticed that the case nos. 5/98 has been filed against the respondent Nos. 4 and 5 alleging that they had amassed wealth disproportionate to their known sources of income while holding the post of Chief Minister of the State of Bihar. Both the petitioners are not in any way connected with this case. They are not de-facto complainant in this case. It is for the prosecution to prove its case and the respondent Nos. 4 and 5 to deny that the allegations are not true and they did not have the disproportionate income as alleged by the prosecution. It is a criminal litigation exclusively between respondent Nos. 4 and 5 and the State. It is also important to note that in a case of this nature, nobody else has got any right to interfere especially by way of public interest litigation or else such public interest litigation would only hamper the course of justice and may cause prejudice to the accused by denying a fair trial. In this case, as early as 2004, 132 witnesses were examined on the side of the prosecution and 93 witnesses were examined on the defence side. Arguments of the prosecution were over as early as in 14.7.2004 and the defence arguments continued upto 19.7.2004. Because of the present public interest litigation, the trial could not be conducted. It is equally important to note that though the petitioners have alleged series of irregularities, but they are not supported by basic facts having solid foundation.(Para 20)

       As per Dr. AR Lakshmanan, J. [Concurring Judgment]

       In our opinion, public interest litigation meant for the benefit of the lost and lonely and it is meant for the benefit of those whose social backwardness is the reason for no access to the Court. We also say that PILs are not meant to advance the political gain and also settle their scores under the guise of a public interest litigation and to fight a legal battle. In our opinion, the liberty of an accused cannot be taken away except in accordance with the established procedure of law under the Constitution criminal procedure and other cognate statutes. We are also of the opinion that PIL is totally foreign to pending criminal proceedings. The records placed before us would only go to show that respondent No.4 had no hand in any of these matters whether in the appointment of judges or in the change of the prosecutor or on the decision not to file an appeal in the income tax cases. (Para 65)

       As per S.H. Kapadia, J. [Minority Judgment]

       The present petitions are filed on the alleged acts of misfeasance. The test which one has to apply to decide the maintainability of the PIL concerns sufficiency of the petitioners interest. Under this test it is necessary to consider the subject matter to which the PIL relates. It is wrong in law for the court to judge the applicants interest without looking at the subject matter of his complaint. If the petitioner shows failure of public duty, the court would be in error in dismissing his PIL.(Para 84)