Delhi High Court
Bhupinder Singh Chaudhri vs Lt. Governor And Ors. on 1 May, 1994
Equivalent citations: 1994IIAD(DELHI)713, 54(1994)DLT410, 1994(29)DRJ391
Author: R.C. Lahoti
Bench: R.C. Lahoti, Arun Kumar
JUDGMENT R.C. Lahoti, J.
(1) Concept of "consultation" and essentials of " effective consultation" in the context of sanction for prosecution under section 19(l)(c) of the Prevention of Corruption Act, 1988 and under Section 197 of the Code of Criminal Procedure, 1973 given by the Lt. Governor of Delhi for the prosecution of a member of the Delhi Higher Judicial Service purportedly in consultation with the High Court of Delhi arise for consideration and form subject matter of decision in the present case. We quote the observations made by their Lordships of the Supreme Court in the recent decision in U.P.Judicial Officers Association's case (Writ Petition Crl.404 of 1993 decided on 7.3.94) as a prologue to this judgment. Judicial independence in relation to the judicial service has to be ensured and protected. Member of the judicial services should not work under apprehensions of retaliatory actions by the police and the executive "whatever form such action might assume".
(2) The petitioner joined Delhi Higher Judicial Service as a direct recruit in the year 1982. In the year 1986, as permitted by the prevalent practice in the union capital territory of Delhi, the petitioner was sent on deputation as Secretary ( Law & Judicial)to the Delhi Administration. The petitioner was also required to function as Secretary of Metropolitan Council, Delhi. In the year 1988, he was also appointed as the Administrator-General for the Union Territory of Delhi under section 3 of the Administrator-General Act, 1963. In his capacity as the Administrator-General, the petitioner was also assigned with judicial functions such as to grant certificates of succession of the properties having value less than Rs. 50,000.00 . He was also carrying out the orders and directions of the High Court. One Kasim Ali Khan was appointed as the Deputy Administrator General to aid and assist the petitioner. In his capacity as the Administrator-General, the petitioner took over the charge of the estate of one Smt Dropdi Devi under orders of the High Court dated 15.2.1973 passed in Probate case No.12/71. One of the properties was situated at 110, Darya Ganj, Delhi. The High Court had by its order dated 27.7.89 permitted the Administrator General to deal with the property/tenants and unauthorised p73 occupants,etc. of the property. On a complaint made, the Cbi registered a case bearing Rc No.16(A)/92/DLI dated 31.3.92 against Kasim Ali Khan, Deputy Ag OT. With the permission of the High Court, the Cbi recorded the statement of the petitioner in connection with investigation of the crime registered by it. After investigation the Cbi formed an opinion that the petitioner was also involved in conspiracy for the crime. The grave man of the charge was that surreptitiously apart of the property was let out to one S.S. Ali Khan on a nominal rent of RS.100.00 as against the market rent of Rs. 5600.00 per month, which similarly situated properties in the area of Darya Can) were fetching. This S.S. Ali Khan was none else than the son of Kasim Ali Khan Deputy Ac OT. The Cbi found on investigation the petitioner and Kasim Ali Khan to have abused their position as such public servants and obtained pecuniary advantage by letting out the property at a nominal rent which constituted offences punishable under section 120B, 409 Indian Penal Code and Section 13(l)d) of the Prevention of Corruption Act, 1988.
(3) On 19.10.1993, the Lt.Governor of the Govt of National Capital Territory of Delhi, granted sanction for prosecuting the petitioner. This sanction is under challenge. According to the petitioner, the Lt.Governor did not have effective consultation with the High Court of Delhi before according the sanction and hence the same is vitiated.
(4) As to how and in what manner the sanction came to beaccorded, it would be better to find out from a few extracts reproduced from the affidavit of Shri R.K. Parbhakar, Under Secretary ( Law & Judicial) Govt of National Capital Territory of Delhi, who filed his counter reply on behalf of the respondent l,2 and 3. The Dig Police, Cbi, Delhi Region wrote a letter to the Chief Secretary on 7.6.93 enclosing therewith a report of Supdt. of Police dated 31.5.93. The Chief Secretary on 19.6.93 wrote to the Registrar of Delhi High Court forwarding therewith a copy of the above said letter dated 7.6.1993 from the DIG. The Registrar of Delhi High Court informed the Chief Secretary vide his letter dated 23.7.1993 that "the matter was considered by the Full Court and their Lordships have desired to inform the Delhi Administration that the probate case in which the petitioner was appointed Administrator General by the Court is pending. This Court offers no views". Having thus stated the details of the correspondence and the papers exchanges between the Lt.Governor and the High Court of Delhi, the affidavit proceeds to state :- It is evident from the contents of the above mentioned D.O. letter that the Hon'ble High Court fully considered the matter in respect of grant of prosecution sanction and expressed no views rightly so because any opinion could have effected the mind of the appointing authority and it was kept open for the Lt.Governor to apply his mind independently while granting sanction. The High Court only conveyed the factual position to the effect that a probate case was pending so that it may not be criticized of concealment of facts. Their Lordships of the High Court did not say since probate case is pending,therefore we are "THAT having received communication from the High Court vide letter dated 23.7.93 the respondent No.3 prepared a detailed note and submitted the file to the respondent No.1 through respondent No.2 along with the complete investigation report, evidence and documents etc. along with the views expressed by the High Court. Respondent No.1 after carefully examining them was pleased to grant sanction for prosecution of the petitioner after due application of mind. The action of the appointing authority in granting prosecution sanction, was absolutely independent. Sanction granted by the respondent No.1 i.e. the appointing authority to launch prosecution against the petitioner in the present case is absolutely legal and justified.
(5) Two things are clear. Firstly, the material which was forwarded by the Lt.Govemor to the High Court was in the shape of a letter by the Chief Secretary to the Registrar of Delhi High Court accompanied by a copy of the letter dated 7.6.1993 received from the Dig Police CBI. Delhi Region. Secondly the High Court had not expressed any opinion either way; either positively in favor of granting sanction for prosecution or negatively, i.e. in favor of withholding the same. It had merely stated that it was offering "no views". The Lt.Govemor thereafter thought that the matter was left free to his own volition and discretion and as he formed an opinion in favor of granting the sanction for prosecution, he did so acting "absolutely independently". Why the Lt.Govemor was in favor of granting sanction of prosecution in spite of the HighCourt having not expressed any positive opinion, was not recorded and even if recorded, that record of reasons was not forwarded once again to the High Court for its opinion seeking reconsideration. The Lt.Governor did not realise the necessity of securing any positive or definite opinion of the High Court either way before actually granting the sanction.
(6) It is not disputed that the petitioner being a member of Higher Judicial Service, he cannot be prosecuted without there being a sanction. The sanction has to be given by the Lt.Govemor. It is also not disputed that the provisions of sanction read with the provisions of Part Vi Chapter Vi of the Constitution, especially Articles 233 and 235 thereof mandatorily oblige the Lt.Govemor to have consultation with the High Court before granting the sanction but for such consultation the sanction would be null and void and ineffective.
(7) Fortunately for us, floodlight has been thrown by the Apex Court of the country through its several landmark decisions on the twin questions arising for decision before us. In the Supreme Court Advocates on Record Association's case , their Lordships have laid down that in the context of Indian judiciary the word 'consultation' has to be assigned a colour distinguished from what it would have in the context of the executive, for the judiciary cannot for all purposes be treated at par with the executive in view of the role assigned to what it would have in the context of the executive, for the judiciary cannot for all purposes be treated at par with the executive in view of the role assigned to it by the Constitution and the independence with which it has to play the same. The emphasis in consultation has to be on the importance of the purpose and not on the comparative importance of the participants working together to achieve the purpose. In the context of union judiciary, their Lordships said :- "THE primary aim must be to reach an agreed decision taking into account the views of all the consultees, giving the greatest weight to the opinion of the Chief Justice of India, who, is best suited to know the worth of the appointee. No question of primacy would arise when the decision is reached in this manner by consensus, without any difference of opinion. Primacy to the executive is negatived by the historical change and the nature of functions required to be performed by each. The primacy must, therefore, lie in the final opinion of the Chief Justice of India, unless for very good reasons known to the executive and disclosed to the Chief Justice of India, that appointment is not considered to be suitable."
(8) In All India Judges Association v. Union of India , Their Lordships observed "THE distinction between the Judges and the members of the other services has to be constantly kept in mind for yet another important reason. Judicial independence cannot be secured by making mere solemn proclamations about it. It has to be secured both in substance and in practice. It is trite to say that those who are in want cannot be free. Self-reliance is the foundation of independence. The society has a stake in ensuring the independence of the judiciary and no price is too heavy to secure it."
(9) We may also quote the observations made by their Lordships in K. Veerastoami vs Union of India , though again in the context of union judiciary, Their Lordships held that the Chief Justice of India is a participatory functionary in the matter of appointment of judges of the Supreme Court and the High Courts. Their Lordships further held :-
"THE Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary. Hence it is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a Judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the Government in coming to the right conclusion."
case for proceeding under the Act, the case shall not be registered."
"THERE shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India."
(10) The status assigned to the Chief Justice of India and the weight given and position of primacy assigned to his opinion in the context of the union judiciary and judges of the High Court, appears in the constitutional scheme to have been assigned to the High Court and the Chief Justice of the State in the context of judiciary subordinate to it. We proceed to examinee few decisions of the Supreme Court in this context and where Articles 233 and 235 of the Constitution came up for consideration of their Lordships.
(11) In Shamsher Singh vs State of Punjab , the petitioner, who was a member of Punjab Civil Service (Judicial Branch) was directed to be terminated consequent upon an enquiry held by Director Vigilance appointed by the Govt to hold an enquiry on the request made by the High Court. Their Lordships observed "THE members of the subordinate judiciary are not only under the control of the High Court but are also under the care and custody of the High Court. The High Court failed to discharge the duty of preserving its control. The request by the High Court to have the enquiry through the Director of Vigilance was an act of self abnegation. The contention of the State that the High Court wanted the Govt to be satisfied makes matters worse. The Governor will act on the recommendation of the High Court. That is the broad basis of Article 235."
"THE members of the subordinate judiciary look up to the High Court not only for discipline but also for dignity. The High Court acted in total disregard of Art. 235 by asking the Government to enquire through the Director of Vigilance. " (underlining by us) (12) In Baldev Raj Guliani vs State of Punjab & Haryana High Court. , the primacy of the recommendations of the High Court made to the Governor in the scheme of the Constitution, was emphasised in the following words :- "THE recommendation of the High Court in respect of judicial officers should always be accepted by the Governor. This is the inner significance of the constitutional provisions relating to the subordinate judiciary. Whenever in an extraordinary case, rare in itself, the Govemorfeels,forcertain reasons that he is unable to accept the High Court's recommendations, these reasons will be communicated to the High Court to enable it to reconsider the matter. It is, however, inconceivable that, without reference to the High Court, the Governor would pass an order which had not been earlier recommended by the High Court. That will be contrary to the contemplation in the Constitution and should not take place."
(13) Keeping in view the independence of the judiciary, the term control as occurring in Art-235 of the Constitution came up for consideration of their Lordships in Tej Pal Singh vs. State of U.P. , their Lordships held "THE High Court's 'control' over district courts and courts subordinate thereto under Art.235 is exclusive in nature, comprehensive in extent and effective in operation. It includes administrative, judicial and disciplinary jurisdiction of the High Court. It is complete control subject only to the power of the Governor in the matter of appointment, dismissal, removal or reduction in rank and the initial posting of and initial promotion to the rank of District Judge."
"...ANYorder in respect of exercise of control over the judicial officers is by the High Court and by no other authority; otherwise, it will affect the independence of the judiciary. The consultation with the High Court is mandatory."
(14) It is clear from the law laid down by their Lordships of the Supreme Court that in the Indian constitutional scheme the High Court is assigned the status of the custodian of judicial independence at the State level. Its control over the State judiciary is all pervasive all-exclusive. It shall vigilantly control the State judiciary and at the same time zealously watch against any outside invasion while discharging the participatory function. In the consultative process the High Court has a primacy in the sense that its expressed opinion binds the other participation in the process, i.e. the executive and obliges the latter to seek back if inclined to take a view different or inconsistent. When it is a case of granting sanction for prosecution of a judge or a magistrate under the control of the High Court, under Section 197 of the Code of Criminal Procedure and Section 19 of the Prevention of Corruption Act, 1988, consultation by the Governor with the High Court is mandatory. The Governor must grant or refuse the sanction consistently with the opinion expressed by the High Court. If the High Court may not express an opinion, or if the Governor be inclined to take a view different from the opinion expressed by the High Court, the reasons therefore have to be communicated to the High Court to enable it to reconsider the matter. The reasons have to be good and weighty. Any departure from the process would vitiate the sanction. In the case at hand, the High Court offered its 'no views', certainly the High Court had not expressed an opinion in favor of sanction to prosecute. The Lt.Governor could not, therefore, have granted the sanction. Earlier, the Chief Secretary had merely forwarded the letter of the Dig Police Cbi along with his letter to the High Court. The Lt. Governor had not formed any opinion of his own till then and rightly so because he had asked for the opinion of the High Court. The High Court expressed no views. The Lt.Governor then formed an opinion in favor of grant ing sanction. The Lt. Governor should have referred back his reasons accompanied by the material . on which they were based to the High Court enabling reconsideration of the matte r by the High Court. That having not been done, the.sanction under challenge in the petition accorded by the Lt. Governor stands vitiated.
(15) The consultation has to be meaningful and effective. The parties involved in the consultative process are both high level functionaries; the Lt.Governor on the one side and the High Court on the other. As already noticed, the opinion of the High Court carries with it a primacy. It is,therefore, necessary that all the material and information available on the basis of which an opinion has to be formed must be placed by the Lt.Governor before the High Court also. [See observations in para 128, Supreme Court Advocates on Record Association's case (supra)] The record of investigation, i.e. the nature of accusation as disclosed by the Fir, oral and documentary evidence collected during investigation conducted by the Cbi do not appear to have been placed before the High Court. It cannot therefore, be said that there was an effective consultation by the Lt.Governor with the High Court.
(16) It may be stated that the record of the proceedings in the custody of the Lt.Governor relevant to the grant of impugned sanction by him was required to be produced before this Court at the time of hearing. However, the State claimed privilege under Section 123 of the Indian Evidence Act through an affidavit dated 16.2.1994 filed by Shri K.S.Gupta, Secretary ( Law, Justice and Legislative Affairs) Govt of NCT. However, the High Court of Delhi did produce the record of its proceedings, which we have perused.
(17) Before parting, we may place on record a preliminary objection, which was raised on behalf of the respondent to the maintainability of the petition. It was submitted that the petitioner had an alternative remedy available to him by raising an objection before the trial Court to the authority of the sanction and then challenging the trial court's decision in revision or appeal as the case may be and if needed. Looking to the wide general importance of the questions agitated before us, we have chosen to hear the petition on its merits and not to have the petitioner to pursue alternative remedy which in the factors of the case could not have been effective.
(18) For the foregoing reasons the petition is allowed. The sanction order dated 19.10.1993 (Annexure-4) accompanying letter No., F7/14/93-Home(I)Estt dated 20.10.1993 is hereby quashed. Petition stands allowed. By way of abundant caution, it is made clear that our order shall not come in the way of the Lt.Governor having consultation afresh with the High Court and granting sanction afresh consistently with the observations made and law stated hereinabove.