Bombay High Court
The Provident Investment Co. Ltd vs Hemlata Vijaysingh Ved And Others on 13 January, 2012
Author: D.Y.Chandrachud
Bench: D.Y.Chandrachud, A. A. Sayed
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IN THE HIGH COURT OF JUDICATURE AT BOMBAY
ORDINARY ORIGINAL CIVIL JURISDICTION
APPEAL NO.302 OF 2011
IN
NOTICE OF MOTION NO.164 OF 2011
IN
SUIT NO.36 OF 1969
The Provident Investment Co. Ltd. ..Appellant.
Vs.
Hemlata Vijaysingh Ved and others ..Respondents.
.....
Mr. Goolam Vahanvati, Attorney General of India with Mr. D.J.
Khambata, Additional Solicitor General with Mr.B.K. Saluja, Mr. Ajay
M., Mr. K. Balkrishnan i/b Mr. Rupesh K. Bobade for the Appellant.
Mr. Iqbal M. Chagla, Senior Advocate with Mr. S.U. Kamdar, Senior
Advocate, Mr. Riyaz I. Chagla, Ms. Pooja Patil, Mr. S. Aole and Mr. A.N.
Jakhadi i/b Udwadia & Udeshi for Respondents 8 and 11 to 14.
Mr. V.R. Chhatrapati, Senior Advocate with Mr. H.P. Chaturvedi, Mr. S.R.
Rajguru and Mr. Ashok Verma for Respondent No.16.
Mr. Vivek Tankha, Additional Solicitor General with Mr. Rajesh Bindra
and Mr. Prasad Pathare, Mr. Rahul Mascarnhas i/b Amarchand &
Mangaldas & Co. for Respondents 18 and 19.
......
CORAM : DR.D.Y.CHANDRACHUD &
A. A. SAYED, JJ.
13 January 2012
ORAL JUDGMENT (PER DR.D.Y.CHANDRACHUD, J.) :
1. A suit was instituted on the Original Side of this Court in 1969 for the redemption of a mortgage executed on 3 September 1925. The Defendants to the suit are respectively a company owned and controlled by the State of Madhya Pradesh, the State of Madhya ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 2 APP302-13.1.sxw Pradesh and the Union of India. The suit in question, L.C. Suit 36 of 1969 had been transferred to the list of long causes by Mr. Justice Nain on 12 August 1969. In a statement prepared by the registry of this Court on 31 January 1992 the suit was not shown to be pending before the Court. The statement prepared by the registry of the Court which showed the position of suits as on 1 January 1992 did not reflect the pendency of any suit of that year. A similar position obtained in a subsequent list which was prepared by the registry on 26 August 2008.
2. On 13 August 2008, nearly thirty years after the suit was instituted a letter was addressed by the advocate for the Plaintiffs to the Defendants informing them that they were desirous of taking search of the papers and proceedings in the suit on 14 August 2008 in the office of the Court when the Defendants were informed to remain present if they so desired. Simultaneously a letter was addressed to the Prothonotary and Senior Master for seeking search of the proceedings. The Plaintiffs, the Court is informed, were unable to take search on 14 August 2008 since the papers were not traceable in the department. On 26 December 2008 a clerk in the record department put up a precipe of the present advocates for the Plaintiffs, Messrs Udwadia and Udeshi, seeking reconstruction of the records and proceedings. The clerk stated that the suit was not traceable in the department despite a diligent search in the premises of the G.T. Hospital where the records are stored. The Assistant Prothonotary submitted that the explanation of the clerk may be accepted and an order of reconstruction may be passed. On 14 January 2009 the Prothonotary and Senior Master passed an order granting ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 3 APP302-13.1.sxw reconstruction of the record. A reconstruction of a record postulates, as a matter of first principle, that the proceedings of which reconstruction is sought are pending on the file of the Court. The order of the Prothonotary and Senior Master was admittedly passed without notice to the Defendants and without any determination of the issue as to whether the suit was pending on the file of the Court.
3. The suit was thereafter placed on Board before Learned Single Judges of this Court entrusted with the assignment of the trial of suits on the Original Side. When the suit came up for trial before a learned Single Judge on 14 August 2009 the Court proceeded on the basis that the suit was pending before the Court through the years.
On 4 September 2009 issues were framed. On 8 December 2009 the learned Single Judge placed the suit for recording evidence on 16 December 2009 but reserved the objections of the Defendants on the ground that the records had not been reconstructed in accordance with law. On 4 January 2010 another learned Single Judge while placing the suit for cross-examination observed that the suit was one of the oldest suits on the file of the Court and which was yet to be disposed of. On 10 January 2010 a Motion was taken out before the learned Single Judge by the First Defendant seeking a stay of the hearing of the suit until an enquiry was conducted to ascertain whether the reconstruction of the proceedings was correctly allowed by the Prothonotary and Senior Master. The Motion was dismissed by a learned Single Judge by an order dated 10 February 2010.
4. The order of the learned Single Judge was carried in appeal. By an order dated 9 April 2010 the Division Bench recorded that the ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 4 APP302-13.1.sxw apprehension which was expressed on behalf of the Appellant was that it was likely that the suit may have been dismissed in default.
The Court noted that though the Appellant was not in possession of any order of the Court dismissing the suit in default, the Court was informed that the relevant pages of the suit register of 1969 were torn. The original record of the suit was not traceable. In this background, the Division Bench in its order dated 9 April 2010 observed as follows :
"We had indicated to Learned Counsel that it would be appropriate if the Appellant has a fair opportunity to inspect the Minute Books where a record of the orders passed by the Learned Trial Judges in Long Cause Suits is maintained. As noted earlier, the Learned Counsel for the Appellant sought an opportunity to inspect the minutes Books in order to be satisfied that the suit still continues to be pending and that it has not been dismissed in default. The original record of the suit was not traceable; it is common ground that the pages from the suit register of 1969 are torn and the statement prepared by the Registry on 26 August 2008 does not show the suit to be pending. The suit was instituted forty years ago, much prior to the advent of computerisation."
5. Accordingly with the consent of all the learned counsel an order was passed by which the Appellant was permitted to take inspection of the Minutes Books which contained orders passed by Judges of this Court assigned with the work of hearing Long Cause Suits and of the suit register pertaining to the suit in question. The Court directed that in the event that upon inspection the Appellant was able to establish either from an order of the learned Trial Judge or an administrative order of the Prothonotary and Senior Master that the suit was dismissed in default, this could be brought to the ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 5 APP302-13.1.sxw notice of the learned Single Judge. However, if the Appellant was not able to establish on the basis of the material on the record that the suit was dismissed in default "or that it is no longer borne on the file of the Court", it was agreed that the hearing of the suit shall proceed.
6. The Court was thereafter moved by the State of Madhya Pradesh and by the Provident Investment Company Limited in two Chamber Summons seeking an extension of time to carry out inspection. This Court by its order dated 23 August 2010 extended time for completing inspection of the Minutes Book of the learned Judges assigned with the work of hearing Long Cause Suits from 1997 until 2008. The rationale for the basis of the order of the Court is explained in the following observations :
"We are of the view that the interests of justice require that all the parties and above all, the Learned Trial Judge who is hearing the suit must be satisfied that the suit continues to remain pending on the file of the Court, particularly having regard to the fact that the original records of the suit of 1969 are untraceable. Directing that the trial should take place on a reconstructed plaint and written statement without a proper verification of whether the suit continues to remain on the file would be unsafe."
7. The Court declined to accede to the request of the Plaintiffs that the hearing of the suit should not be stayed and that the trial may proceed. The Court observed thus :
"Counsel appearing on behalf of the Plaintiff submitted that the hearing of the suit should not be stayed and that the trial may proceed. It was urged that since the trial is likely to take a considerable period of time, the process of inspection can ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 6 APP302-13.1.sxw continue during the progress of the trial. We are of the view that it would not be appropriate and proper in the interests of justice to allow the trial to proceed when the basic issue as to whether the suit continues to remain pending on the file of this Court is still to be resolved. This assumes some significance because of the circumstance that in the suit of 1969 the entire original record is untraceable. The Plaintiffs themselves do not appear to have take steps to prosecute the suit until 2008. In the suit register of 1969, the page relating to the suit in question, the Court is informed by Counsel, has been torn away."
8. On 23 December 2010 the learned Attorney General of India who appeared on behalf of the Defendants stated before the Court that the directions which were issued by the Court stood worked out since inspection had been taken and that the First and Third Defendants would move a Motion before the learned Single Judge on the basis of the inspection which was carried out in support of the contention that the suit does not remain pending on the file of the Court. Pursuant thereto a Motion was taken out before the learned Single Judge which came to be dismissed by an order dated 20 April 2011. In the Motion, the relief that was sought was the setting aside of the order of reconstruction. Besides that, a direction was sought to the effect that the suit was not pending on the file of the Court and stood disposed of. The order of the learned Single Judge forms the subject matter of the appeal.
9. When the appeal came up for hearing before a Division Bench consisting of Hon'ble Smt. Justice Ranjana Desai (as her Ladyship then was) and one of us (Dr. Justice D.Y. Chandrachud) on 15 July 2011, the Court noted that it had been revealed on inspection that (i) ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 7 APP302-13.1.sxw the relevant pages of the suit register of 1969 pertaining to Suit 36 of 1969 are missing; and (ii) the pages of the Minutes book of Hon'ble Mr. Justice B. Lentin were also missing. In this view of the matter, the Court directed that an enquiry be conducted by a senior judicial officer for the purposes of determining as to whether the suit has been dismissed in default or whether it is no longer borne on the file of this Court as on 14 January 2009 (the date on which an order for reconstruction was passed by the Prothonotary and Senior Master). The Court noted that all the learned counsel appearing for the contesting parties had joined in stating before the Court that they had no objection to an enquiry being conducted by a judicial officer for ascertaining the aforesaid position. The enquiry was entrusted to Mr. R.M. Palhade - Registrar (Inspection), who holds the rank of District Judge in the judicial service of the State. Mr. Palhade has submitted his report dated 8 November 2011 after a copious enquiry into the records of the case and allied proceedings. After the report was received, parties have been furnished with an opportunity to file their objections or, as the case may be, submissions before this Court in response to the report of the enqiry and the appeal has been set down specifically for hearing the submissions on behalf of the parties. Accordingly we have heard the learned counsel appearing on behalf of the parties.
10. The enquiry officer has observed thus in paragraphs 21 and 22 of the report :
"21. So far as the Register, wherein the entries for the suits of the year 1969 were made, it was seen that in Suit Register at Sr. No.2, there were entries of suits bearing Nos.4, 512, 527, 528, 685, 846, 896 and 898. In the Suit Register at Sr. No.3, there ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 8 APP302-13.1.sxw were entries of suits bearing Nos.318 to 898 of the year 1969. In the Suit Register at Sr. No.4, there were entries of suits bearing Nos.973 to 1153 while in the Suit Register at Sr. No.5 there were entries of suits bearing Nos.51 to 969.
22. No entries for suits bearing Nos.1 to 50 for the year 1969 were available as the relevant pages of the Suit Register were torn and were not forthcoming."
11. In paragraph 44, the enquiry officer has noted that inspite of a wide ranging examination of the available records, "there was no trace of Suit No.36 of 1969". Since the pages containing the entries for Suit Nos. 1 to 50 for the year 1969 are missing from the suit register, the enquiry officer has not been able to definitely opine if the suit was dismissed in default or was no longer borne on the file of the Court as on 14 January 2009. In the concluding paragraph of his report the enquiry officer has expressed his sense of consternation about the fact that the entire record relating to the suit maintained in the Union Ministry of Law and Justice at Mumbai had also gone missing and the pages from all the relevant registers where the suit could have been referenced were also missing. In this background the enquiry officer has stated as follows :
"I am of the view that since the record relating to the said Suit maintained in the Ministry of Law & Justice Department, Secretariat, Mumbai has also gone missing and since the relevant pages from all the relevant Registers where the said Suit could have been referenced have also gone missing, the possibility of a conspiracy having been hatched by some persons interested in the properties which formed the subject matter of the said Suit, to cause all the traces of the record and proceedings to disappear, cannot be ruled out. I would, therefore, most humbly suggest that considering these peculiar circumstances and the enormous value of the properties forming ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 9 APP302-13.1.sxw the subject matter of the said Suit No.36 of 1969, it would be appropriate if an independent investigating agency like the Central Bureau of Investigation is entrusted with the task of finding out as to how the record and proceedings went missing and how all references to Suit No.36 of 1969 were caused to be effaced and by whom and the motive for the same."
12. The learned Attorney General of India appearing on behalf of the Appellant submitted that -
(i) The Prothonotary and Senior Master granted a reconstruction of the record on 14 January 2009 without notice to the Defendants and without enquiring into the basic issue about the status of the suit and whether it was pending on the file of the Court;
(ii) The admitted position which has emerged before the Court is that - (a) The relevant pages of the suit register of 1969 containing a reference to suits 1 to 50 are torn; (b) The Minute Books of Mr. Justice Lentin for the period between 29 November 1978 to 27 February 1979 amongst others are missing and (c) The original records of the suit are missing from the file of the Court;
(iii)The order passed by the Court on 23 August 2010 which has been accepted by the parties specifically adverts to the view of the Court that unless the issue as to whether the suit was pending on the file of the Court was determined, it would be unsafe to proceed with the trial;
(iv)The material which is annexed to the report including in particular annexure G-2 would indicate that suits pertaining to the year 1969 were disposed of in 1976, 1977 and thereafter until 1983. L.C. Suits 34 and 35 which immediately preceded ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 10 APP302-13.1.sxw the suit in question were disposed of on 21 March 1978 by Mr. Justice Lentin and on 20 December 1972 by Mr. Justice Nain and similarly Suits 37, 38 and 39 have also been disposed of as indicated in annexure G-2;
(v) There are unexplained silences in the conduct of the proceedings on behalf of the Plaintiffs. Several Plaintiffs had died over the years and no application, to the knowledge of the Defendants, had been brought out to bring the legal representatives on the record. In the period prior to 1992 when the first list was prepared by the registry showing the pending suits, there is no evidence of any activity whatsoever on the part of the Plaintiffs with respect to the conduct of the suit. In 1997, the erstwhile advocates for the Plaintiffs, Crawford Bayley & Co. were discharged when the present advocates M/s.
Udwadia and Udeshi came on the record. There is no explanation whatsoever as to how there was a complete silence even on the part of the present advocates after 1997 till 2008 when for the first time inspection of the records was sought.
13. The learned Attorney General of India has supported the view of the enquiry officer and submitted that this is a case where a systematic effort has been made to destroy the records of this Court pertaining to a judicial proceeding and an offence has been committed. The destruction of the records of a judicial proceeding with a view to obliterate any trace of the record before the Court, raises serious concerns in regard to the administration of justice where an enquiry by the Central Bureau of Investigation would be warranted. It was urged before the Court that in these ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 11 APP302-13.1.sxw circumstances, it would not be in the interests of justice to proceed with the trial of the suit pending the completion of a preliminary enquiry by the CBI. It was urged that the process which commenced with the order of the Court dated 23 August 2010 must be taken to its logical conclusion.
14. On the other hand, it has been urged on behalf of the Original Plaintiffs that -
i) The Defendants are mortgagees in possession of the immovable property which forms the subject matter of the suit for redemption of a mortgage of 1925. The value of the land is estimated to be in excess of Rs.1000 Crores. The Defendants who are in possession of the land and have dealt with the land would only stand to gain by the destruction of the record.
There is no reason to implicate motives to the Plaintiffs in the matter;
ii) The High Court is a Court of record. If a suit has been validly instituted before the Court, it continues to remain pending unless disposed of by a judicial or administrative order. There is no judicial or administrative order on the record indicating that the suit has been disposed of or dismissed;
iii) The reconstruction of the record of a judicial proceeding is not an untoward event and is governed by a circular dated 7 August 1995 issued by the Prothonotary and Senior Master on the directions of the then Chief Justice;
iv) Adequate opportunities were furnished to the Defendants to take inspection of the record in order to establish as to ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 12 APP302-13.1.sxw whether the suit had been dismissed by a judicial order. The Attorney General had made a statement before this Court on 23 December 2010 stating that the directions for inspection had been worked out and that a Motion would be taken out before the learned Single Judge in support of the contention that the suit does not remain pending on the file of the Court. The Motion which was taken out before the Learned Single Judge was in fact for a direction that the suit stood disposed of. In the absence of any judicial order recording the disposal of the suit, the only conclusion which can be drawn is that the suit continues to remain pending on the file of the Court;
v) The power of the Court to order an enquiry by the CBI has to be exercised sparingly and subject to the caution which has been addressed in several judgments of the Supreme Court. A roving enquiry into the commission of an offence is not contemplated. The power to order an investigation by the CBI has been conferred upon the High Court acting as a constitutional Court under Article 226 and the power cannot be exercised when the Court acts in appellate proceedings arising out of the Ordinary Original Civil Jurisdiction exercised by a Single Judge at the trial of a suit.
The rival submissions now fall for determination.
15. A suit for the redemption of a mortgage of 1925 was instituted on the Original Side of this Court in 1969. The singular trace which is available in the records of the Court pertaining to the suit is an order passed by Mr. Justice Nain transferring the suit to the list of ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 13 APP302-13.1.sxw Long Causes on 12 August 1969. The inspection which has been carried out in pursuance of the diverse directions issued by this Court reveals the following state of affairs :-
i) The suit register of 1969 pertaining to suit Nos.1 to 50 is torn;
ii) The Minutes Book of Hon'be Mr. Justice B. Lentin for the relevant period is missing and untraceable;
iii) The original record of the suit is untraceable;
iv) Annexure G-2 of the report of the enquiry officer indicates the dates on which other suits of 1969 were disposed of by the learned trial Judges who were assigned with the work of trial of Original Side suits instituted in this Court. Among the suits which have been disposed of are L.C. Suit 34 and 35 of 1969 which were disposed of by Mr. Justice Lentin and Mr. Justice Nain on 21 March 1978 and 20 September 1972 and Suits 37, 38 and 39 of 1969 which were disposed of by Mr. Justice Tulzapurkar, Mr. Justice Rege and Mr. Justice Lentin on 18 March 1969, 28 April 1978 and 19 July 1976. Annexure G-2 as a matter of fact contains a detailed statement of all the long cause suits of 1969 which were disposed of by Mr. Justice Lentin, a large number of them in the year 1978 itself.
16. In Annexure A to the written submissions of the Appellant a statement has been compiled on the basis of the report of the enquiry officer which indicates that as many as 111 suits of 1969 were disposed of by Mr. Justice Lentin in 1976, 28 in 1977, 66 in 1978. The Minute Book of Mr. Justice Lentin for the period between 29 ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 14 APP302-13.1.sxw November 1978 and 27 February 1979 is torn and pages 1 to 12 are not available.
17. Now it is in this background that a view has to be taken on the basic issue which was addressed in the order of this Court dated 23 August 2010. By its order, the Division Bench noted that the basic question was as to whether the suit which has been instituted in 1969 continues to remain pending on the file of the Court particularly having regard to the fact that the original records of the suit were untraceable. The circumstance that the original record of the suit is untraceable, which was adverted to in the order of the Court, is now coupled with the further circumstances which have come on the record following the enquiry directed by this Court. The enquiry by the judicial officer has now established the complete effacement of any trace of the suit from the records of the Court. This is not a case where the pleadings of a suit are untraced. The procedure to be followed for reconstruction of the record of a suit is the subject of administrative directions issued by the registry on the Original Side on the directions of the then Chief Justice on 7 August 1995. Reconstruction of the record postulates that the suit continues to remain pending on the file of the Court. Learned Senior Counsel appearing on behalf of the Plaintiffs has fairly stated in response to a query of the Court that the Plaintiffs have no explanation for what steps if any that they took in the matter between 1969 and 2008. There is no explanation or disclosure about what steps were taken by Crawford Bayley & Co. prior to 1997 and thereafter by Udwadia & Udeshi till 2008. The circumstances which have been drawn to the attention of the Court indicate a strong prima facie case that the ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 15 APP302-13.1.sxw records of the Court have been unauthorisedly destroyed in order to obliterate any evidence of the proceedings of the suit from the registry on the Original Side. Learned Counsel appearing on behalf of the Plaintiffs submitted that at some stage, the Appellant proceeded on the basis that the suit was still pending. How an officer of the Appellant perceived the status of the suit may at best be one circumstance which merits consideration. That, however, cannot be conclusive of the issue and must be juxtaposed with are the other circumstances to which a reference has already been made.
Moreover, the basic fact which has emerged is that every trace of the suit has been obliterated and effaced from the records of the Court. Prima facie, an offence involving the deliberate and unauthorised destruction of the record of the Court has been made out.
18. The High Court under Article 215 of the Constitution is a Court of record. Maintaining the sanctity of the record of judicial proceedings is a matter which relates to the integrity of the Court as a judicial institution. Any attempt to destroy the records of the Court deeply and fundamentally affects the functioning of the High Court as a Court of record and seriously impinges upon the administration of justice. As the Supreme Court observed in M.M. Thomas v. State of Kerala1, "a Court of record envelopes all such powers whose acts and proceedings are to be enrolled in a perpetual, memorial and testimony". Courts of record are superior Courts and the High Court as a Court of record has a duty both under the Constitution and as a matter of first principle under the ordinary law to keep all its records correctly in accordance with law. When the 1 AIR 2000 SC 540 ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 16 APP302-13.1.sxw record of the Court is destroyed for extraneous reasons, that is a matter of grave public interest. There is a vital societal interest in ensuring the integrity of the record of the Court and in the fair and streamlined functioning of the Court of record as a judicial institution.
19. The power of the High Court to order an enquiry by the Central Bureau of Investigation is undoubtedly a power which has to be exercised with circumspection and caution. The fundamental principle which emerges from the decided cases is that the power cannot be exercised merely on the basis of conjecture or to order a roving enquiry without the High Court being prima facie satisfied that the commission of an offence has been established. The Supreme Court has recognised that the power can be exercised by the High Court as a Court to which constitutional powers are entrusted under Article 226 of the Constitution. This is in recognition of the fact that the High Courts in India are superior courts of record. As superior Courts, the High Courts exercise inherent and plenary powers. Unless the exercise of jurisdiction is barred either expressly or by necessary implication, the powers of the High Courts to do justice in accordance with law is in that sense untramelled.
This was recognised in the decision in M.M.Thomas (supra) where the Bench placed reliance in the earlier decisions in Naresh Shridhar Mirajkar v. State of Maharashtra2 and MV Elisabeth v. Harwan Investment & Trading Pvt. Ltd.3.
2 AIR (1967) SC 1
3 AIR (1993) SC 1014
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20. In Common Cause v. Union of India4, the Supreme Court held that no case was made out against the Petitioner for any case being registered against him under Section 409 of the Penal Code nor was there any occasion to direct an investigation by the CBI. The direction issued by the High Court to the CBI to investigate any other offence was held to be wholly erroneous. The Supreme Court observed that a direction for investigation could be given only if an offence is prima facie found to have been committed or the involvement of a person is prima facie established. This decision of three learned judges was followed in a subsequent judgment in Secretary, Minor Irrigation & Rural Engineering Services, U.P. v. Sahngoo Ram Arya5 where the Supreme Court laid down that the power to direct an enquiry by the CBI can be exercised only in cases where there is sufficient material to come to a prima facie conclusion that there is a need for such enquiry. In State of West Bengal v.
Committee for Protection of Democratic Rights, West Bengal6, the Supreme Court while laying down the principles of law inter alia observed thus :
"When the Special Police Act itself provides that subject to the consent by the State, the CBI can take up investigation in relation to the crime which was otherwise within the jurisdiction of the State Police, the court can also exercise its constitutional power of judicial review and direct the CBI to take up the investigation within the jurisdiction of the State. The power of the High Court under Article 226 of the Constitution cannot be taken away, curtailed or diluted by Section 6 of the Special Police Act. Irrespective of there being any statutory provision acting as a restriction on the powers of the Courts, the restriction imposed by Section 6 of the Special Police Act on the powers of the Union, cannot be read as 4 (1999) 6 SCC 667.
5 (2002) 5 SCC 521.
6 AIR 2010 SC 1476/
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restriction on the powers of the Constitutional Courts. Therefore, exercise of power of judicial review by the High Court, in our opinion, would not amount to infringement of either the doctrine of separation of power or the federal structure."
21. The same principles have been reiterated in a recent decision in the State of Punjab v. Davinder Pal Singh Bhullar7 We are conscious of the position in law that recourse to an investigation by the CBI is to be resorted to with caution and circumspection. The material which has been placed on the record reflects prima facie a clear attempt to obliterate every available trace pertaining to the record of the suit, be it in the form of the suit register, the original pleadings or the Minutes Books of the learned Judge who dealt with a large number of suits pertaining to the year in question. This is an exceptional situation where the Union of India, the State of Madhya Pradesh and the Provident Investment Company Limited, which is a body corporate owned and controlled by the State Government have joined in urging that an investigation by the CBI should be ordered. Above all and quite apart from this aspect, we are of the view that the present case raises vital issues about the sanctity and integrity of the records maintained by this Court as a constitutional Court which is entrusted with the function of acting as a Court of record. Any attempt to interfere with the position of the Court by the tampering or destruction of the record is a matter of grave concern and in which society and the public have a vital interest.
22. In these circumstances, we entrust to the CBI the task of conducting an enquiry into the circumstances in which the records 7 CDJ 2011 SC 1240 ::: Downloaded on - 09/06/2013 18:04:55 ::: PNP 19 APP302-13.1.sxw pertaining to Long Cause Suit 36 of 1969 have been destroyed and/ or have gone missing from the registry of this Court. The Director -
CBI, shall ensure that the enquiry is conducted expeditiously.
23. We decline to accede to the submission of the Plaintiffs that the trial of the suit should be allowed to proceed in the meantime. The basic question as to whether the suit continues to remain on the file of the Court would need a complete and thorough enquiry by the CBI. The judicial officer who was requested to conduct an enquiry by this Court has found in the course of his report that there is no trace of any record pertaining to the suit in the registry and that as a result he was unable to come to a conclusion as to whether the suit continues to remain pending on the file of the Court. In this view of the matter, unless the basic question as to whether the suit remains pending on the file of the Court is determined, it would be unsafe to proceed with the trial of the suit.
We accordingly adjourn the hearing of these proceedings to 13 April 2012.
(Dr. D.Y. Chandrachud, J.) (A. A. Sayed, J.) ::: Downloaded on - 09/06/2013 18:04:55 :::