TMI Blog2013 (2) TMI 130X X X X Extracts X X X X X X X X Extracts X X X X ..... ode of Criminal Procedure can see that gross irregularities were committed practically at every step in the proceeding. Referring 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 as discussed 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. Apart from the record of the case, there are external circumstances that strengthen this view. From the resume of respondent No. 3, 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. 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 the Andhra ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to cancel his enrolment as an advocate. The quashing of the appointment of respondent No.3 as a judge of the High Court is sought on the ground that the consultation process leading to his appointment was vitiated as both the High Court and the Supreme Court Collegia as well as the Central Government failed to consider two essential facts; one, at the time of his appointment, a 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tment as a judge and the notification was issued and he assumed the office as a judge, a criminal case was pending in which respondent No.3 was an accused. It is, therefore, necessary to look into the criminal case and its proceedings. The criminal case in question dates back to the year 1981 when respondent No.3 was a student of Nagarjuna University. The students of the University, 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... espondent No.3 as a judge of the High Court and it is contended on behalf of the petitioners that the failure to take into account the pendency of the criminal case while his name was recommended by the High Court Collegium and approval and consent was accorded by the Supreme Court Colllegium and the Central Government for his appointment as a judge of the High Court deeply flawed 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, quash ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e of inviolability and credibility of appointment to the high office of the High Court judge. He further submitted that the Court must not be seen as protecting someone wrongly appointed as a judge of the High Court for, the people s faith and trust and confidence in the courts and the judges presiding over the courts was as much necessary to support the independence of judiciary as 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 author ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s the basic eligibility for being appointed as a judge of the High Court. Later on, the appointment was also challenged on grounds of suitability and want of effective consultation process by taking additional pleas in supplementary affidavits. Kapadia, J. (as His Lordship then was), speaking for the Court brought out the distinction between eligibility and suitability and pointed out 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 consultatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... participatory consultative process into the constitutional scheme is to limit judicial review restricting it to specified areas by introducing a judicial process in making of appointment(s) to the higher judiciary. These are the norms, apart from modalities, laid down in Supreme Court Advocates-on-Record Assn. and also 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grity of the office. (See paragraphs 34-37, 42, 43, 47, 59 and 89 of the judgment). 19. We have given the most careful consideration to the CVC decision and the submissions made by Mr. Shanti Bhushan on the basis of that decision, all the time bearing in mind that the Court must not overlook or condone something that may have 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... proclaimed offender . 24. It is noted above that the charge sheet was filed in the court of the Munsif Magistrate, Mangalagiri on October 19, 1983. On October 25, the Magistrate directed for issuance of summonses, fixing November 25, 1983 as the date for hearing. The summonses, issued in pursuance of the order, are on file marked 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase of accused 2 to accused 5. After the case was separated, the record pertaining to accused 2 to accused 5 was registered as CC No. 75/87 and was later renumbered as CC No. 167/91. From the order sheet it appears that from May 1987 to August 1991, the court passed orders on about twenty four dates directing for issuance of non-bailable 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 st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... summons or the non-bailable warrants on any of the accused persons. 30. The purpose in adverting to the proceedings of the criminal case in detail is not to point out the irregularities in the proceeding. Anyone even with a passing acquaintance with the Code of Criminal Procedure can see that gross irregularities were committed practically 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 unimag ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the State Police had submitted the charge-sheet against respondent No. 3 and hence, the State Government must be deemed to be aware of the fact. The submission plainly overlooks that the State Government is not a monolith and it does not function as a single person. The State Government functions in different departments manned by different 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 fo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... our view, but a ruse to malign respondent No.3. 43. In his report to the Chief Justice of India the Chief Justice, Andhra Pradesh High Court has made the following comment: 27. The incident occurred almost 30 years ago. The case against Justice Ramana was withdrawn almost 10 years ago. That it should be raked up now is a little 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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