TaxTMI 
TaxTMI 
2013 (2) TMI 130
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....criminal trial was pending in which respondent No.3 was not only an accused but a proclaimed offender and the other that even at the time of his enrolment as an advocate he had concealed the criminal proceedings and in the relevant column of the application for enrolment with the Bar Council, he falsely stated that there was no pending proceeding against him. 2. In order to put the petitioners' challenge to the appointment of respondent No.3 as a judge of the High Court in the proper perspective, it will be useful to give here a brief outline of the relevant facts. 3. The name of respondent No.3 was recommended for appointment as a judge of the Andhra Pradesh High Court on November 14, 1998 by the Chief Justice of the High Court with the other two Collegium members agreeing with the recommendation. The recommendation made by the High Court was received in the Supreme Court on February 15, 1999. At that time the age of respondent No.3 was 41 years and six months and he had completed over 15 years of legal practice. In the resume prepared by the Ministry of Law and Justice that came to be put up before the Supreme Court Collegium, respondent No.3 was described as under: &nbs....
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....ty, it appears, complained of inadequate public transport facilities for commuting from their homes to the University as only a few buses plying between Guntur and Vijayawada stopped at the University. They demanded that more buses should stop at the University. As is not uncommon with the youth in this country, some of the students of the University took to agitation in connection with the demand and at about 8.30 p.m. on February 13, 1981, a group of about 30 students put road blocks on the GNT road, opposite Nagarjuna University, causing stoppage of all vehicles on the road. At about 9.15 p.m., a bus of the State Transport Corporation, on its way from Guntur to Vijayawada, arrived there when there was already a heavy jam and pulled up at the road flank. In such situations, unfortunately a State bus is the softest and the most vulnerable target. In this case also the State bus became the target of the agitating students' ire. The driver of the bus was pulled down and the door to the driver's seat was damaged. Some miscreants pelted stones on the bus and smashed its windscreen and glass windows with iron rods. One of the passengers also received some injuries. By this time a polic....
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....the participatory consultative process as envisaged in Article 217(1) of the Constitution and as developed by the decisions of this Court in Supreme Court Advocates-on-Record Association1 and later on in Special Reference No. 1 of 19982. It is submitted the appointment of the respondent resulting from a consultation process that failed to take into account an important and relevant fact was completely illegal and was, therefore, liable to be quashed by a writ of quo warranto. The respondent had no right to hold the office of a High Court judge and this Court must step in to correct the grave error committed by his appointment. 8. It needs to be noted here that the learned Attorney General was requested to address the Court on the question of maintainability of this writ petition that seeks a writ, quashing the appointment of a judge of the High Court. The Attorney General submitted that the writ petition was not maintainable and was liable to be dismissed summarily. He submitted that the prayer for a writ of quo warranto quashing the appointment of respondent No.3 was only a camouflage and what the petitioners really aimed at was the removal of the judge who had been in office for....
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....the guarantees under the Constitution and the laws. Mr. Shanti Bhushan further submitted that in the past also similar issues came before the Court and the Court never declined to examine the merits of the case and passed appropriate orders. In support of the submission, he relied upon the decisions of this Court in (i) Shri Kumar Padma Prasad v. Union of India3, (ii) Shanti Bhushan v. Union of India4 and (iii) Mahesh Chandra Gupta v. Union of India5. 10. The second case cited by Mr. Shanti Bhushan is one which he himself had filed as public interest litigation, assailing the extension granted to respondent No.2 in that case as an Additional Judge of the Madras High Court. He relied upon paragraph 25 of the judgment in that case but, we fail to see anything in that decision that may serve as an authority on the question of maintainability of a writ petition for quashing the appointment of a judge after many years of his assuming the office. 11. However, the first and the third case relied upon by Mr. Shanti Bhushan deserve consideration. 12. In Shri Kumar Padma Prasad, the Court dealt with a writ petition that was filed originally before the Gauhati High Court but was later tran....
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....t that eligibility was based on objective facts and it was, therefore, liable to judicial review. But, suitability pertained to the realm of opinion and was, therefore, not amenable to any judicial review. The Court also examined the class of cases relating to appointment of High Court judges that might fall under judicial scrutiny and concluded that judicial review may be called for on two grounds namely, (i) "lack of eligibility" and (ii) "lack of effective consultation". In paragraphs 39, 43 and 44 of the judgment the Court said: "39. At this stage, we may state that, there is a basic difference between "eligibility" and "suitability". The process of judging the fitness of a person to be appointed as a High Court Judge falls in the realm of suitability. Similarly, the process of consultation falls in the realm of suitability. On the other hand, eligibility at the threshold stage comes under Article 217(2)(b). This dichotomy between suitability and eligibility finds place in Article 217(1) in juxtaposition to Article 217(2). The word "consultation" finds place in Article 217(1) whereas the word "qualify" finds place in Article 217(2). 43. One more aspect needs....
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....in the judgment in Special Reference No. 1 of 1998, Re. Consequently, judicial review lies only in two cases, namely, "lack of eligibility" and "lack of effective consultation". It will not lie on the content of consultation. (emphasis added) 15. In view of the decision in Mahesh Chandra Gupta, the question arises whether or not the case in hand falls in any of the two categories that are open to judicial review. Admittedly, the eligibility of respondent No.3 is not an issue. Then, can the case be said to raise the issue of "lack of effective consultation". 16. Mr. Shanti Bhushan strongly argued that the consultation that led to the appointment of respondent No.3 as the judge of the Andhra Pradesh High Court was completely deficient for not taking into consideration that he was accused in a pending criminal case and as a result, the appointment of respondent No.3 was wholly vitiated and it was fit to be quashed by this Court. In support of the submission Mr. Shanti Bhushan heavily relied upon the decision of this Court in Centre for PIL and another v. Union of India and another6 (commonly called as the CVC case). Mr. Shanti Bhushan submitted that in that case this Court had made ....
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....ve the effect of lowering down the people's faith or trust in the judges or in courts. But we find that though there are some superficial similarity between the CVC case and the case in hand, the two cases are quite different in their core issues and we find it impossible to justly apply the CVC decision to the facts of the case in hand. 20. In the CVC case the HPC was not unaware of Shri P.J. Thomas being an accused in a pending case for offences punishable under Sections 120-B of the Penal Code read with Section 13(1)(d) of the Prevention of Corruption Act. The recommendation that the HPC made in exercise of the statutory power under the proviso to Section 4 of the Central Vigilance Commission Act, 2003 was in a sense in defiance of the pending trial before the criminal court. The genesis and the developments taking place in the criminal case are discussed in paragraph 8 to 21 of the judgment in the CVC case from which it appears that the institution of the case was preceded by the report of the Comptroller and Auditor General, followed by the report by the Public Undertaking Committee of the Kerala Assembly. On the basis of the reports, at least two writ petitions were filed (u....
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....arked as paper nos. 25 to 30, but they bear no endorsement about service. At the reverse of summonses to accused 3 and 4, it is mentioned that they were studying in B.L., First Year, Nagarjuna University. On November 25, 1983, the accused were not present in court. Their absence was recorded in the order-sheet and fresh summonses were directed to be issued, fixing December 23, 1983 as the date of hearing. Whether or not summonses were issued in pursuance of the order is not known because those summonses are not on the record. On December 23, 1983, the accused were again not present and summonses were again directed to be issued, fixing January 25, 1984 for hearing. On January 25, 1984, the accused were once again not present and fresh summonses were issued fixing February 15, 1984 for hearing. The summonses are on the file marked as paper Nos. 31 to 36. The case was then listed on a number of dates but the accused did not appear. Finally on November 27, 1985, accused 1 appeared in court but accused 2 to 5 were still not present. On January 9, 1987, the court ordered to separate the case of accused 2 to 5 and proceeded with the trial of accused 1. On June 2, 1987, statement of accus....
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....ilable warrants of arrest against the accused but no compliance is noted against any order, excepting the one passed on August 30, 1991. However, no warrants, even of that date, are on the file. Mechanical orders continued to be passed in the same fashion till April 2000 and then suddenly on May 8, 2000 the order was passed for issuance of nonbailable warrants and processes under Sections 82 & 83 of Code of Criminal Procedure against the accused, fixing July 18, 2000 as the next date in the case. The compliance of the order is noted on May 11, 2000 on the order sheet. From the record it, however, appears that process under Sections 82 & 83 was issued on May 11, 2000 only against accused 3, P.R. Muruthy son of P.B. Subbarao. Thereafter, the case was listed on several dates, awaiting execution of warrants and proclamation. On June 20, 2001 the court took steps for recording evidence in absence of the accused under Section 299 of the Code of Criminal Procedure and then, after the case was listed on three different dates, on November 5, 2011, the examination-inchief of the bus driver (PW1) was recorded under Section 299 of the Code of Criminal Procedure. On the same date, the examinati....
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....ically at every step in the proceeding. We have referred to the proceedings to judge whether respondent No. 3 could be said to have any knowledge of the case in which he was cited as accused 4. From the record of the case which we have discussed in detail above, we find it very difficult to hold that respondent No. 3 was even aware that in some record buried in the courts at Mangalagiri he was named as an accused and he was required to appear in the court in connection with that case. 31. Apart from the record of the case, there are external circumstances that strengthen this view. From the resume of respondent No. 3, as noted at the beginning of the judgment, it may be seen that before his appointment as a judge of the High Court, he was the Additional Advocate General of Andhra Pradesh. If the case would have been within his knowledge it is unimaginable that he would not have attended to it and got it concluded one way or the other. 32. Here it may also be noted that before filing this writ petition before this Court the petitioners had made a representation, both before the Chief Justice of India and the Law Minister, asking for the removal of respondent No. 3 as a judge of th....
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....erent people and simply because a charge-sheet was submitted by the State Police no conscious knowledge of the fact can be attributed to the State Government. 36. We have carefully gone through the record relating to the appointment of respondent No. 3 as a judge of the Andhra Pradesh High Court. From the record it is evident that none of the members of the High Court or the Supreme Court Collegia was aware of the fact. The State Government was equally unaware of the fact and so was the Central Government as is evident from the resume prepared by the Law Ministry as also the IB Report. 37. This is not all. In 1993, respondent No. 3 was a candidate for the post of the Member of the Income Tax Appellate Tribunal and in that connection he was interviewed by a Selection Committee headed by a sitting judge of the Supreme Court. He was selected for appointment and was issued an appointment letter dated September 8, 1995 as judicial member in the ITAT. The appointment letter was undoubtedly issued to him only after police verification and nothing was mentioned even at that stage about any criminal case pending against him. He did not accept the appointment is another matter altogether. ....
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....le inexplicable. The case does not seem to have been sensational in any manner whatsoever so that someone would be following it up. Therefore, it is a little odd that it should have suddenly surfaced now. It is possible that there is some reason behind digging up this case, but I am unable to fathom the motive." 44. What the Chief Justice said, in a highly restrained manner, about the representation addressed to the Chief Justice of India, applies more to this writ petition. The writ petition owes its origin to a news report published in a Telugu daily newspaper called 'Sakshi' on December 27, 2011. A translated copy of the report is enclosed as Annexure P-11 to the writ petition. The report is based on incorrect facts and is full of statements and innuendos that might easily constitute the offence of defamation leave alone contempt of court. After the news broke out, the petitioners seem to have collected the record of the criminal case and filed this writ petition on that basis. The writ petition is drafted with some skill and it presents the facts of the criminal case in a rather twisted way in an attempt to portray respondent No.3 in bad light. The way the writ petition is dra....