2017 Supreme(SC) 1082

SUPREME COURT OF INDIA
R.K. Agrawal, Arun Mishra, A.M. Khanwilkar, JJ.
Kamini Jaiswal – Petitioner
Versus
Union of India & Anr. – Respondents
WRIT PETITION [CRIMINAL] NO.176 OF 2017
Decided On : 14-11-2017

IMPORTANT POINTS
Constitution of Benches is the prerogative of the CJI who is the master of roster.
No Bench can pass an order constituting a particular Bench.
Forum hunting deprecated.
Any imputation against the CJI in regard to constitution of benches would be highly improper and amount to contempt of Court.
Asking a Judge to recuse himself terming it as conflict of interest highly improper and another form of forum hunting. Tantamount to interfering with administration of justice and professional misconduct.
Unscrupulous allegations and insinuations seriously jeopardize independence of judiciary.

Headnote:(a) Administration of justice – Judicial propriety – Identical matters – Two writ petitions filed – One Bench directing matter to be placed before CJI for referring the same to appropriate Bench – The other Bench directing the matter to be placed before a constitution bench of five senior-most Judges on 13.11.2017 – A Constitution Bench holding that constitution of Benches is the prerogative of the CJI who is the master of roster – Constitution Bench rendering the two Judge Bench decision/direction ineffective and the CJI constituting the present three Judge Bench for hearing the two petitions – Decision of the Constitution Bench is binding. (Para 11, 15)

       (1998) 1 SCC 1 – Relied upon

       (b) Constitution of India – Articles 144 and 142 – Binding nature of decision of a Bench of Supreme Court – It is binding even on the CJI – However, presently Constitution Bench holding the two Judge bench decision ineffective because no Bench can pass an order constituting a particular Bench – It is prerogative of the CJI – Articles 144 and 142 not applicable. (Para 16)

       (2002) 4 SCC 388; 80 US 335 (1871) – Referred

       (c) Practice and procedure – Forum hunting – Writ petition filed on 8.11.2017 – Mentioning on same day – Case ordered to be listed on 10.11.2017 – Listed before Bench of Hon’ble Sikri J. on 10.11.2017 – Another identically worded writ petition filed by same set of counsel on 09.11.2017 and mentioned in Court no. 2 requesting to take it up on the same day – Amounts to forum hunting. (Para 17)

       (d) Administration of justice – Judicial propriety – Petitioners relying on and insisting for following judicial order of two Judges Bench to constitute constitution Bench of five senior-most Judges of Supreme court including the CJI – At the same time submitting that CJI should not be a member of the Bench – Submission in contradiction of the order. (Para 18, 30)

       (e) Supreme Court Rules, 2013 – Order VI, Rule 2 – Practice and Procedure – Constitution of Benches – It is only the CJI, even in the face of an allegation against him, who can assign a case to a Bench – Any imputation in this regard would be highly improper and amount to contempt of Court – Contempt of Courts act, 1971 – Section 12 – Article 215, Constitution of India. (Para 19, 20, 21, 27)

       (1996) 5 SCC 216 – Relied upon

       (f) Administration of justice – Judicial propriety – Scandalizing the judiciary – Petitioners mentioning a FIR and averring that it is against the highest judicial functionary – No names mentioned in the FIR – No FIR can be lodged against any judicial functionary as held in (1991) 3 SCC 655 – Allegation of a retired Judge of a High Court assuring of favourable orders from Supreme Court in case of a medical college for gratification – Petition not disclosing any order favourable to the college – In fact the college was denied relief – Decision rendered on 18.9.2017 and FIR registered on 19.9.2017 – Far fetched and too tenuous to even assume or allege that the matter was pending in this Court for which any bribe was to be delivered to anyone. (Para 22, )

       (1991) 3 SCC 655; (2009) 10 SCC 337; (1971) 3 SCC 215; (2014) 7 SCC 280 – Relied upon

       (g) Contempt of Courts Act, 1971 – Section 12 – Initiating or taking action under the Act against a person unscrupulously trying to influence the decision making or indulging in mal practices – Not conflict of interest – Asking the Judge to recuse himself terming it as conflict of interest highly improper – Another form of forum hunting – Tantamount to interfering with administration of justice – Responsibility of advocate – Professional misconduct – Advocates Act, 1961 – Section 34. (Para 23)

       (1996) 7 SCC 99; (1988) 3 SCC 255; (2009) 8 SCC 106; (2017) 5 SCC 262 – Relied upon

       (h) Administration of justice – Judicial propriety – Petitioners praying orally that Hon’ble Mr. Justice A. M. Khanwilkar should recuse from the Bench because he heard the Medical college case – Such unscrupulous allegations and insinuations seriously jeopardize independence of judiciary. (Para 28, 29, 31)

       (1996) 5 SCC 216; (1991) 3 SCC 655 – Relied upon

       (1987) 4 SCC 611; (2016) 5 SCC 808 – Distinguished

       Facts of the case:

       Two successive identically worded petitions were filed, one on Wednesday (8.11.2017) and the other on Thursday (9.11.2017) – one by the Commission for Judicial Accountability and Reforms (CJAR) and the other by Ms. Kamini Jaiswal, Advocate of this Court, who is a member of CJAR.

       The petition filed on Wednesday was to be listed on Friday (10.11.2017) before a Bench presided by Hon’ble A.K. Sikri and Ashok Bhushan, JJ. As the petition had not been listed before same Bench which ordered its listing for Friday, i.e. Court No.2, it became necessary according to the counsel for petitioner to file the present second petition i.e. W.P. (Crl.) No.176/2017 by Ms. Kamini Jaiswal, Advocate of this Court.

       A prayer was made to Court No.2 to hear the matter on the same day in view of the urgency in the matter.

       In the writ petitions, a prayer has been made to constitute a Special Investigation Team (SIT), headed by retired Chief Justice of India, to investigate the offences arising out of FIR being RC.10(A)/2017-AC. III dated 19.9.2017 recorded at New Delhi by the CBI and those connected therewith and take consequential action thereafter in accordance with law. A prayer was also made to direct the CBI, to produce before this Court for its perusal and, preserve and protect, all evidences/materials collected so far and hand over all the materials/evidences collected so far in the FIR to the SIT to be constituted by this Court.

       It has been averred in the petitions that the FIR, relating to criminal conspiracy and of taking illegal gratification to influence the outcome of a pending case before this Court, reveals a nexus between the middlemen, Hawala dealers and senior public functionaries, including persons in the judicial field. The FIR has been registered with respect to case of Prasad Education Trust at Lucknow. The medical college set up by the Trust was debarred by the Government from admitting students for the years 2017-18 and 2018-19. The FIR lodged by the CBI names a retired Judge of the High Court as an accused, who had allegedly been negotiating through a middleman to get a favourable order in the petition pending before Supreme Court. The said petition was heard by a Bench headed by Hon’ble Chief Justice of India. Thus, taking this as a pretext, in the instant petition, it has been averred, that the FIR casts a cloud on the judiciary at the highest level. Thus, the prayer has been made that, investigation in relation to aforesaid FIR should be handed over to an SIT headed by a retired Chief Justice of India and not left to the agency controlled by the Government; with the averment that in order to restore the confidence of the public in the judiciary, the agency controlled by the Government should not be allowed to undertake the said investigation. It is further averred that since the matter had been heard by a Bench presided over by Hon’ble Chief Justice of India, propriety demands that the Hon’ble Chief Justice of India ought not to deal with the present petition either on the judicial side, or even on the administrative side. Therefore, present petition can neither be heard by a Bench presided by the Hon’ble Chief Justice of India, nor can it be assigned to any other Bench by Hon’ble Chief Justice of India in his administrative capacity. Further, that the petitioner has not made any representation to the respondent; because of the extreme urgency in the matter, the writ petition has been filed.

       Finding of the Court:

       The writ petitions tantamount to scandalizing the entire judiciary.

       Result: Writ petitions dismissed.