REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION [CRIMINAL] NO.176 OF 2017

Kamini Jaiswal                       … Petitioner

                                                              Vs.

Union of  India & Anr.                       … Respondents

J U D G M E N T

1. The  facts  are  disturbing  in  the  instant  case.  By  moving  two  successive

petitions, one on Wednesday (8.11.2017) and the other on Thursday (9.11.2017),

identically  worded  similar  petitions,  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.  Both  the  petitions  are

identically worded. 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  stated  by  Shri  Prashant  Bhushan,  one  of  the  counsel  representing  the

petitioner, the  said  fact  was  informed to  him by the  Registry  of  the  Court  on

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8.11.2017. Learned counsel further states that as the petition had not been listed

before same Bench which ordered its listing for Friday, i.e. Court No.2, it became

necessary to file the present second petition i.e. W.P. (Crl.) No.176/2017 by Ms.

Kamini Jaiswal, Advocate of this Court.      

2. A prayer  was  made  to  Court  No.2  to  hear  the  matter  on  the  same day;

urgency  in  the  matter  had  been  urged  by  Shri  Dushyant  Dave,  learned  senior

counsel, who mentioned the matter. Order dated 9.11.2017 passed by Court No.2 is

extracted hereunder :

“Issue notice.              Dasti, in addition, is permitted.      This matter was taken on Board upon being mentioned in the morning at 10.30 a.m. On an inquiry from the Bench regarding the urgency in the matter, it was brought to the notice of the Court that a certain  case  is  registered  by  the  Central  Bureau  of  Investigation against a retired High Court Judge of this country containing serious allegations implicating the said Judge, shown as an accused in the FIR No. 10(A) under Section 8 and Section 120 B of the Prevention of Corruption Act, 1988. The FIR contained certain allegations which are disturbing. The allegations pertain 2 to the functioning of this Court. On perusal of the FIR which was placed before us in the morning, we thought it  necessary and proper to take up the matter  immediately. Therefore, permission was granted to move the matter today at 12.45 p.m. before this Court. Accordingly the papers are placed before us at 12.45  p.m.  Mr.  Dushyant  Dave,  learned  senior  counsel  makes submissions highlighting various aspects of the matter, the details of which we do not propose to make in this order. But, at the same time, we  are  also  duty  bound  to  place  the  developments  that  when  the hearing of  the  matter  was  in  progress,  the  Officer  of  the  Registry placed a xerox copy of the proceedings purportedly issued by Hon'ble the Chief Justice of India, a copy of which is annexed to this Order. Having  regard  to  the  totality  of  the  circumstances,  we  deem  it appropriate that this matter be heard by the Constitution Bench of the

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first five Judges in the order of seniority of this Court. Having regard to the importance of the matter, we also deem it appropriate that the matter be listed on Monday, the 13th November, 2017. Having regard to the nature of the case, it is also necessary to make an interim order regarding the custody of the case diary and all the materials collected by the second respondent during the course of the investigation of the above-mentioned crime. We, therefore, deem it appropriate to direct the second respondent to produce the entire material collected by the CBI in the course of 3 the investigation of the crime and keep it in a sealed cover and produce the same before the Constitution Bench on Monday, the 13th November, 2017.  Communicate this order to the second respondent forthwith.”

3. In the other matter, i.e. W.P. (Crl.) No.169/2017, filed by CJAR, which was

listed  before  a  Bench presided by Hon’ble  A.K.  Sikri,  J.,  following order  was

passed by the Bench on Friday, the 10th November, 2017 :

“Mr.  Prashant  Bhushan,  learned  counsel  has  brought  to  our notice  order  dated  09.11.2017  passed  in  W.P.(Crl.)  No.176/2017 referring  the  matter  to  the  Constitution  Bench.  Let  the  matter  be placed before Hon’ble the Chief Justice for passing appropriate orders for listing this matter.

Mr. R.S.  Suri,  senior  advocate/President,  Supreme Court  Bar Association  (SCBA)  submits  that  SCBA  also  wants  to  get  itself impleaded as a  party respondent  and render  assistance.  On an oral request of Mr. Suri, the prayer is allowed and the SCBA is impleaded as a party respondent.”

4. 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

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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.  

5. It has been averred in the petitions, filed under Article 32 of the Constitution

of  India,  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 this 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

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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 in the petition, 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. The FIR dated

19.9.2017 has been placed on record as Annexure P1.  

6. It  is  further  averred,  that  the  College  had  been  granted  permission  on

20.8.2016 by the Oversight Committee of the Medical Council of India; on failure

to fulfill certain conditions, it got debarred from admitting the students for two

academic sessions i.e. 2017-18 and 2018-19 as infrastructure and other facilities

were found to be deficient. W.P. (C) No.442/2017 was filed in this Court, which

was  connected  with  WP  (C)  No.411/2017  in  which  an  order  was  passed  on

1.8.2018, to provide an opportunity of hearing to the petitioner(s) in that case and

thereafter  to  pass  a  reasoned  decision  de  novo.  Hearing  was  granted,  and  the

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Hearing Committee of the Government agreed with the aforesaid decision of the

Ministry,  not  to  permit  the  college  for  two  years.  Another  writ  petition  was

thereafter, filed in this Court by the said Prasad Education Trust; it was withdrawn

on 24.8.2017, with liberty to move the Allahabad High Court. Thereafter, a writ

petition  was  filed  on 25.8.2017 in  the  High Court  at  Allahabad;  an  order  was

passed on 25.8.2017 itself that the College shall not be delisted from the list of

colleges notified for  counseling till  the next  date  of  listing  i.e.  31.8.2017.  The

Medical Council of India (MCI) filed an SLP against the said order which was

disposed on 29.8.2017 and permission was sought to file a petition before this

Court which was accorded. Petition was filed on 31.8.2017; the case was listed on

11.9.2017; and, this Court ordered on 18.9.2017, that there shall be no renewal for

the academic session 2017-18, however, the MCI may inspect again for the session

2018-19. No further order was passed by this Court and accordingly the petition

was disposed of. It was for the MCI to take a decision in the matter not only for

continuity of provisional letter of permission for academic session 2016-17 and

renewal purposes only for 2018-19. No relief was granted for the current academic

session 2017-18.

7. On  19.9.2017,  an  FIR  was  registered  against  the  following  persons  in

connection with the case :

1. Shri I.M. Quddusi, retired Judge of the High Court of Odisha. 2. Smt. Bhawana Pandey r/o GK. New Delhi (private person)

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3. Shri B.P. Yadav (private person) 4. Shri Palash Yadav (private person) 5. Shri Sudhir Giri (Private person) 6. Shri  Biswanath  Agrawala,  r/o  HIG  –  136,  Phase  1,  Kanan  Vihar,

Bhubaneshwar, Odisha (Private person) 7. Other unknown public servants and private persons.  

8. It was alleged in the FIR, that Mr. B.P. Yadav had requested  Justice I.M.

Quddusi  and Smt. Bhawana Pandey to get the matter settled in the apex Court

through their contacts. They engaged Mr. Biswanath Agarwala, a private person

and a resident of Bhubaneswar, Orissa for getting the matter settled in the apex

Court. Mr. Biswanath Agrawala claimed that he would get the matter favourably

settled. He demanded huge gratification for inducing the public servants by corrupt

and illegal means.  Further, that Mr. B.P. Yadav, Mr. Palash Yadav, Justice I.M.

Quddusi, Mrs. Bhawana Pandey and Mr. Sudhir Giri were all likely to meet Mr.

Biswanath Agrawala for delivering the agreed illegal gratification at Delhi shortly.

The FIR was recorded on 19.9.2017 whereas this Court had already disposed of the

matter on 18.9.2017. It is averred in the petition that the case discloses commission

of offence punishable under section 8 of the Prevention of Corruption Act, 1988

and section 120B of the IPC against  the named persons as well  as against  the

unknown public servants and private persons. It is further averred in the petition

that  since the matter  involves persons placed at  the highest  echelons of  power

including justice delivery system and in subsequent raids made by the CBI it has

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recovered close to Rs.2 crores in cash, the agency has seized Rs.1 crore which the

Hawala operator had handed over to an aide of the retired Judge I.M. Quddusi.  

9. There was an order passed by a Bench consisting of Hon’ble A.K. Sikri, J.

on 10.11.2017 that the matter be placed before Hon’ble Chief Justice of India for

listing the matter. The matter was considered on administrative side by the Hon’ble

Chief  Justice  of  India  and  he  constituted  a  5-Judge  Constitution  Bench  which

consisted of and presided over by Hon’ble Chief Justice of India. The Constitution

Bench answered the question as a piquant situation had arisen for listing the case

by judicial order before senior-most 5 Judges in order of seniority passed in the

present  petition and the aforesaid order dated 10.11.2017 passed in the case of

CJAR in WP (Crl.)  No.169/2017 by Hon’ble A.K. Sikri,  J.  There was variance

between the orders passed by the two Benches; one by Court No.2 and the other

presided over  by  Hon’ble  A.K.  Sikri,  J.  The  order  in  this  case  was passed on

9.11.2017  for  listing  the  matter  before  5  Hon’ble  Judges  on  Monday  i.e.

13.11.2017 and Hon’ble A.K. Sikri, J. requested the Hon’ble Chief Justice of India

to constitute an appropriate Bench for hearing the other matter which was similar.

The matter was referred to a Constitution Bench of this Court to decide as to what

should be done in such a situation as only working day available was 10.11.2017.

The Constitution Bench held that the Hon’ble Chief Justice of India is the master

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of the roster as per the decision of this Court in  State of Rajasthan v. Prakash

Chand & Ors. (1998) 1 SCC 1 wherein this Court had laid down thus :

“1)  That  the administrative control  of  the High Court  vests  in  the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals. (2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted. (3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions. (4) That  till  any determination made by the Chief  Justice lasts,  no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice. X x x x x  (6)  That  the  puisne  Judges  cannot  “pick  and  choose”  any  case pending  in  the  High  Court  and  assign  the  same  to  himself  or themselves  for  disposal  without  appropriate  orders  of  the  Chief Justice. (7) That no Judge or Judges can give directions to the Registry for listing  any  case  before  him  or  them  which  runs  counter  to  the directions given by the Chief Justice.”

10. A Constitution Bench of this Court held that what has been laid down in

Prakash Chand (supra) would apply  proprio vigore as regards the power of the

Hon’ble  Chief  Justice  of  India.  Though  the  Hon’ble  Chief  Justice   is  the  first

among equals as far as the roster is concerned, the Hon’ble Chief Justice of India

has the prerogative to constitute the Benches of the Court and allocate cases to the

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Benches  so  constituted.  Following  observations  have  been  made  by  the

Constitution Bench of this Court :

“The  aforesaid  position  though  stated  as  regards  the  High Court, we are absolutely certain that the said principle is applicable to the  Supreme  Court.  We are  disposed  to  think  so.  Unless  such  a position is clearly stated, there will be utter confusion. Be it noted, this has been also the convention of this Court, and the convention has been so because of the law. We have to make it clear without any kind of hesitation that the convention is followed because of the principles of law and because of judicial discipline and decorum. Once the Chief Justice  is  stated  to  be  the  master  of  the  roster,  he  alone  has  the prerogative  to  constitute  Benches.  Needless  to  say,  neither  a two-Judge Bench nor a three-Judge Bench can allocate the matter to themselves or direct the composition for constitution of a Bench. To elaborate, there cannot be any direction to the Chief justice of india as to who shall be sitting on the Bench or who shall take up the matter as that touches the composition of the Bench. We reiterate such an order cannot be passed. It is not countenanced in law and not permissible.

An institution has to function within certain parameters and that is  why  there  are  precedents,  rules  and  conventions.  As  far  as  the composition of Benches is concerned, we accept the principles stated in Prakash Chand (supra), which was stated in the context of the High Court,  and  clearly  state  that  the  same  shall  squarely  apply  to  the Supreme Court and there cannot be any kind of command or order directing the Chief Justice of India to constitute a particular Bench.”  

    11. The order passed by the Division Bench of this Court on 9.11.2017 in this

matter has been rendered ineffective and the Hon’ble Chief Justice of India has

constituted 3 Judge Bench to hear the matter on 13.11.2017. Thus it has been heard

by the Bench as formed by Hon’ble Chief Justice of India

12. It  was  urged  by  Shri  Shanti  Bhushan,  learned  senior  counsel,  and  Mr.

Prashant Bhushan, learned counsel for the petitioner, that,  this Bench could not

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hear the matter, as it has been constituted by Hon’ble Chief Justice of India. The

order passed by a Constitution Bench of this Court on 10.11.2017, in the case of

CJAR, that Hon’ble Chief Justice of India would assign the present matter to an

appropriate Bench – that pronouncement cannot be made by a judicial order; that

order  cannot  hold  the  field.  The  order  dated  9.11.2017  passed  by  Court  No.2

should prevail, and the matter is required to be heard by the 5 senior-most Judges

of this Court in the order of seniority. A judicial order cannot be violated, and it

could not have been rendered ineffective by the Constitution Bench decision of this

Court dated 10.11.2017. Prayer was also made that though there is no allegation

against  one of the Hon’ble Judges comprising this Bench (one of us) as Hon’ble

A.M. Khanwilkar, J. was a member of the Bench which disposed of the matter of

Prasad Education Trust  vide order  dated  18.9.2017,  he  should  recuse  from the

matter. No written application has been filed for  his recusal  from hearing.  Ms.

Kamini Jaiswal has also submitted certain points for consideration in writing in

which, it has been urged, that the whole intention and objective of the petition was,

and is, to protect the independence, integrity and reputation of the Institution, the

Supreme Court, by seeking constitution of SIT headed by retired Chief Justice of

India. Further, not even a single allegation has been made against any member of

the judiciary, leave alone the Hon’ble Chief Justice of India or any Supreme Court

Judge.  Explanation has been given as to  how a member  of  CJAR could file a

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petition even when her organization had filed a similar petition before; submitting

that a member of the organization is entitled to exercise  right separately in her

own right to file a petition separate from the organization. Further, that Article 144

of the Constitution renders it impermissible for a different Bench of the Supreme

Court, even if it is a Bench of the Hon’ble Chief Justice of India, to overrule an

order passed by another Bench of  the Supreme Court,  as  orders passed by the

Supreme Court are binding, under Article 144 of the Constitution, even upon the

Hon’ble Chief Justice of India and other Benches of the Supreme Court as held in

Rupa Ashok Hurra v. Ashok Hurra & Anr. (2002) 4 SCC 388. She has reiterated

that Hon’ble Khanwilkar, J. ought to have recused himself from hearing this case

as he was one of the Judges hearing the matter relating to medical bribery scam

alleged in the FIR registered by the CBI.

13. It  was  submitted  by  Shri  K.K.  Venugopal,  learned  Attorney  General  for

India, appearing in his official  capacity, that  such a petition as the present  one

cannot be entertained.  The petitioner has unnecessarily cast doubt on the entire

system. If an unscrupulous person does or says anything irresponsible and illegal,

and demands a bribe in the name of a Judge, the whole system cannot be brought

under disrepute. There is absolutely no material to link the highest judiciary of the

country with the so called act  of  Retired Justice  I.M. Qudussi  and the persons

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named in the  FIR.  Thus the petition being wholly unnecessary, deserves  to  be

dismissed. Better it was that not to prefer such a petition.

He  has  relied  upon the  decision  rendered by the  United  States  Supreme

Court, in the case of Bradley v. Fisher 80 US 335 (1871). It has been held thus:  

“12. Some just  observations  on this  head by the  late  Chief  Justice Shaw, will be found in Pratt v. Gardner, [ 2 Cushing, 68.] and the  point  here  was  adjudged  in  the  recent  case of Fray v. Blackburn, [ 3 Best & Smith, 576.] by the Queen's Bench of England. One of the judges of that bench was sued for a judicial act, and on demurrer one of the objections taken to the  declaration  was,  that  it  was  bad  in  not  alleging  malice. Judgment on the demurrer having passed for the defendant, the plaintiff  applied  for  leave  to  amend  his  declaration  by introducing  an  allegation  of  malice  and  corruption;  but  Mr. Justice Compton replied: 'It  is  a principle of our law that no action will lie against a judge of one of the superior courts for a judicial act, though it be alleged to have been done maliciously and  corruptly;  therefore  the  proposed  allegation  would  not make the declaration good. The public are deeply interested in this  rule,  which  indeed  exists  for  their  benefit,  and  was established in order to secure the independence of the judges, and prevent them being harassed by vexatious actions;'—and the leave was refused. [ In Scott v. Stansfield (3 Law Reports, Exchequer, 220), a judge of a county court was sued for slander, and he put in a plea that the words complained of were spoken by him in his capacity as such judge, while sitting in his court, and trying a cause in which the plaintiff was defendant. To this plea a replication was filed, that the words were spoken falsely and  maliciously,  and  without  any  reasonable,  probable,  or justifiable  cause,  and  without  any  foundation  whatever,  and not bon a fide in the discharge of the defendant's duty as judge, and were wholly irrelevant  to  the matter  before him.  To the replication the defendant demurred; and the Court of Exchequer held the demurrer well taken. 'I am of opinion,' said the Chief Baron,  'that  our  judgment  must  be  for  the  defendant.The question  raised  upon  this  record  is  whether  an  action  is

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maintainable  against  the judge of  a  county court,  which is a court  of  record,  for  words  spoken  by  him  in  his  judicial character, and in the exercise of his functions as judge in the court  over  which  he  presides,  where  such  words  would  as against an ordinary individual constitute a cause of action, and where they are alleged to have been spoken maliciously and without  probable  cause,  and  to  have  been  irrelevant  to  the matter  before him.  The question arises,  perhaps,  for  the first time,  with reference to a county court  judge,  but  a series  of decisions uniformly to the same effect, extending from the time of  Lord  Coke  to  the  present  time,  establish  the  general proposition that no action will lie against a judge for any acts done  or  words  spoken  in  his  judicial  capacity  in  a  court  of justice. This doctrine has been applied not only to the superior courts,  but  to  the court  of  a coroner, and to a court  martial, which is not a court of record. It is essential in all courts that the judges  who  are  appointed  to  administer  the  law  should  be permitted  to  administer  it  under  the  protection  of  the  law, independently and freely, without favor and without fear. This provision of the law is not  for the protection or benefit  of  a malicious or  corrupt judge,  but  for  the benefit  of  the public, whose  interest  it  is  that  the  judges  should  be  at  liberty  to exercise their functions with independence, and without fear of consequences.”

14. Shri  Tushar  Mehta,  learned  Additional  Solicitor  General,  appearing  on

behalf of the Government of India, has submitted, that it was wholly improper to

file two successive petitions in this Court seeking similar relief. No disclosure has

been made in the second petition about filing of the earlier petition for the same

cause of action and reliefs. Similar petitions with the same set of Advocates were

filed and unfortunately the prayer was made on both days by Shri Dushyant Dave,

learned  senior  counsel  of  this  Court  to  list  the  matters,  and  such  successive

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petitions identically worded could not have been filed in this Court. It was clearly a

case of forum hunting. The fact that case of CJAR was already listed before a

Bench presided by Hon’ble A.K. Sikri, J., it was highly improper to file another

petition and seek its hearing by Court No.2 on the said very day i.e. 9.11.2017 at

12.45 p.m. There was no tearing urgency in the matter to do so. Unnecessarily, the

Institution has been brought to be scandalized for no good cause. The petition and

entire  conduct  aims  at  bringing  disrepute  to  this  Court  without  any  rhyme  or

reason. The President of the Supreme Court Bar Association (SCBA), Mr. Suri,

was also present. They have submitted that the SCBA has already placed its point

of view while its case was heard by a Constitution Bench of this Court, in that they

have opposed filing of such petitions. That petition brings disrepute to this Court,

and it was a contemptuous act. Their stand was that, such petition ought not to

have been preferred and, action be taken against the concerned individuals.

15. Firstly, we consider  the  question  whether  we can hear  the  matter  as  the

Bench  has  been  formed  by  Hon’ble  Chief  Justice  of  India  in  exercise  of  his

administrative  power.  That  issue  stands  concluded  by  the  decision  of  5-Judge

Bench of this Court. The Constitution Bench of this Court has clearly held that

Hon’ble Chief Justice of India is the master of the roster, and any order which had

been  passed  contrary  to  the  order  of  the  Constitution  Bench,  was  held  to  be

ineffective in law, not binding on the Hon’ble Chief Justice of India. The Hon’ble

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Chief  Justice  of  India  has  constituted a  Bench on administrative side  after  the

aforesaid  decision  of  this  Court  in  which,  this  precise  question,  as  to  the

competence of the Chief Justice to constitute a Bench, has been decided; as such,

the submission made by Shri Shanti Bhushan, learned senior counsel, is hereby

rejected. We cannot reopen this issue. The decision is binding.

16. It  was submitted,  that  Article 144 of  the Constitution of  India binds this

Court and, renders it impermissible, for any other Bench of the Supreme Court,

even if it is a Bench presided by Hon’ble Chief Justice of India to overrule an order

passed by another Bench of the Supreme Court. All orders passed by the Supreme

Court are binding under Article 142 of the Constitution of India, even upon the

Chief Justice of India and other Benches of the Supreme Court, as held in Rupa

Ashok Hurra (supra). The submission so raised is totally devoid of substance, as a

Constitution  Bench  of  this  Court  has  decided  the  question  that  no  such  order,

constituting a particular Bench, can be passed; that would include the order dated

9.11.2017, passed by Court No.2, in WP (Crl.) No.176/2017. It cannot hold the

field in view of the decision of Constitution Bench of this Court, which expounds

that the Hon’ble Chief Justice of India has the prerogative to constitute a Bench,

notwithstanding any judicial order passed to the contrary. As a matter of fact, there

is no question of applicability of Article 144 or 142 in this case. In case they are

attracted,  it  is  the  decision  of  the  Constitution  Bench  that  is  binding  on  all

16

concerned, as the precise question has been dealt with by the Constitution Bench of

this Court in the aforesaid case of CJAR.

17. An unprecedented  situation  has  been  created  by  the  judicial  order  dated

9.11.2017. The present petition was filed on 9.11.2017, a similar petition, filed by

CJAR, had been mentioned on 8.11.2017 by same set of counsels before Court

No.2 as the Hon’ble Chief Justice of India was presiding the Constitution Bench.

Obviously,  mentioning  could  have  been  made  before  Court  No.2;  but,  when

mentioning had been done in a similar matter filed by CJAR by Mr. Dushyant

Dave,  learned senior  counsel  and Mr. Prashant Bhushan, learned counsel,  as  is

apparent from the order of mentioning, and the case had been ordered to be listed

on Friday, i.e. 10.11.2017, and the petition filed by CJAR was listed before the

Bench of Hon’ble Sikri, J.,   to file and mention this similarly worded identical

petition on the next day with a similar relief; it was mentioned, by one of the same

senior counsel, Mr. Dushyant Dave, before Court No.2, requesting  to take it up on

the same day. That clearly amounted to forum hunting. There was absolutely no

urgency in the matter to make the mention again by filing the petition on 9.11.2017

itself.  They wanted the matter  not  to be heard by another Bench of  this Court

presided by Hon’ble A.K. Sikri, J. Reasons were asked for by us as to why two

petitions  were  filed.  Shri  Prashant  Bhushan,  learned counsel  has  explained  the

filing of second petition thus : that the Registry had informed him that the matter

17

was not to be listed before Court No.2 on Friday, but before Hon’ble A.K. Sikri, J.,

as per the administrative instructions of Hon’ble Chief Justice of India. Therefore,

fresh petition was filed by Ms. Kamini Jaiswal. This could not have been the valid

reason to file a fresh writ petition identically worded as suggested by Shri Prashant

Bhushan, learned counsel appearing on behalf of the petitioner though Ms. Kamini

Jaiswal, learned counsel, in the written note, which she has submitted after hearing

was over,  has  tried  to  explain  that  a  member  of  an  organization  is  entitled  to

exercise her right to file a petition separately from the organisation. Be that as it

may. Even if petition could have been filed, being,  arguendo, within the right  of a

member of an organisation to file such separate petition, but, there could still not

have been any forum hunting in the method and manner it has been done to create

ripples in this Court, by indulging in this exercise of filing the second petition on

the very next day, thereafter, mentioning it on the same day, for the member to

exercise  her  right.  Even the petitioner  is  member  of  organization CJAR is  not

relevant or material but the fact remains that similar identically worded petition has

been filed by petitioner. It was not proper to request Court No.2 to take up the

matter  when the other  matter  filed by CJAR was coming up on Friday before

another Bench. At the most the prayer could have been to list  the said petition

along with the matter filed by CJAR which was coming up for hearing on Friday,

10.11.2017 before Hon’ble Sikri, J.

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18. Prayer has been made before us that Hon’ble Chief Justice of India should

not have assigned the matter to 3-Judge Bench, and there was a judicial order of

formation of Bench of 5 Judges in order of seniority which would include Hon’ble

Chief Justice of India also. On the one hand, the judicial order included Hon’ble

the Chief Justice of India to hear this matter on merits while, on the other hand,

prayer is being made in the application filed today i.e. i.e. 13.11.2017 as well as by

learned counsel appearing on behalf of the petitioner that Hon’ble the Chief Justice

of India should neither hear the matter, nor assign it on the administrative side.

There is a contradiction in the order passed by Court No.2 on 9.11.2017 and in

their submission.

19. As a matter of fact, this controversy has been set at rest that even when there

is an allegation against Hon’ble Chief Justice of India, it is he, who has to assign

the case to a Bench, as considered appropriate by him. This has not only been

settled  by  the  Constitution  Bench  in  CJAR (supra)  vide  aforesaid  order  dated

10.11.2017 but, this question also arose in the matter of Dr. D C Saxena v. Chief

Justice of  India (1996) 5 SCC 216, decided by a 3-Judge Bench of  this  Court

wherein, the petitioner Dr. D C Saxena, filed a public interest litigation which was

heard by Hon’ble Chief  Justice of  India and two other Judges.  The then Chief

Justice of India and the two other Judges summarily dismissed the petition which

triggered the petitioner to file another petition; that got posted before a Bench of 3

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Judges. Scandalous averments were made in the petition against the Hon’ble Chief

Justice of India. The second writ petition was also dismissed and, thereafter, this

Court  issued  a  show cause  notice  after  dismissing the  writ  petition  as  to  why

contempt  proceedings  should  not  be  initiated  against  him,  as  the  persistent

contumacious conduct of the petitioner had been to scandalize the court. It was

submitted by the petitioner that contempt could not be initiated as the constitution

of the Bench by the Chief Justice of India was in violation of principles of natural

justice as no one can be a Judge in his own cause. The often cited proposition that,

Justice should not only be done but should manifestly and undoubtedly seem to

have been done, and that nothing is to be done which creates a suspicion that there

has been improper interference in the course of justice, had been raised by the

petitioner in an unsuccessful attempt to take refuge under these propositions for his

conduct.   In spite of the objection Hon’ble Chief Justice of India not to constitute a

Bench, the Chief Justice of India chose to constitute a Bench, with the Hon’ble

Chief Justice himself as the presiding Judge. According to the petitioner the order

passed by the Bench of Hon’ble Chief Justice of India was required to be ignored.

This  Court  has laid down that  the assertion that  the first  writ  petition was not

dismissed in the eye of law, tends to question the authority of the court. This Court

has observed thus :

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“51. It  would,  thus,  be  seen  that  when  the  first  writ  petition  was dismissed by this Court, as a responsible citizen, the petitioner should have kept quiet. When the result animated by the petitioner was not achieved,  he  embittered  to  foul  at  the  process  of  this  Court  and emboldened  to  file  the  second  writ  petition  with  imputation  made against this Court,  in particular targeting the Chief justice of india, Justice  A.M.  Ahmadi.  As  stated  hereinbefore  and  need  not  be reiterated once over that it is the duty of the Court to hear and decide any matter posted for admission. Therefore, there is nothing improper for the first Court presided over by the Chief justice of india to hear and  decide  the  matter.  When  it  came up  for  admission,  the  Court appears  to  have been persuaded to ascertain  the  correctness of  the allegations  made  in  the  writ  petition.  This  Court  obviously  before issuing notice had sent for and directed the Solicitor General to obtain the  information  from the  Government  as  to  the  correctness  of  the allegations made before deciding whether the Court would exercise its prerogative power under Article 32 to issue directions as sought for. In furtherance thereof, the Solicitor General admittedly placed before the Court the record. On perusal thereof, the first Court had declined to exercise  the  power  as  enumerated  and  obviously  stated  by  the petitioner  that  the exercise  of  the power  under  Article  32  was not appropriate since the Government in the Defence Department could recover from the Prime Minister’s Secretariat or from the Congress Party, as the case may be, all the arrears, if any, due and payable by the  respective  entities.  It  is  not  obligatory  for  this  Court  to  give reasons  for  dismissing  the  writ  petition.  Day  in  and  day  out  in countless cases, while refusing to interfere with the orders this Court dismisses the petitions be they filed under Article 32 or 136 of the Constitution  in  limine.  It  is  also  seen  that  though  the  case  was adjourned for two weeks, no doubt, it was not posted on that day but it was  listed  sometime  thereafter.  In  the  proceedings  of  the  Court recorded by the staff, it  was recorded that the Solicitor General for India  appeared in  the Court  in  his  official  capacity. Shri  Dipankar Gupta as Solicitor General or in personal capacity obviously acted as amicus on behalf of the Court. Being the Solicitor General for India, he was directed to have consultation with Government Departments and to obtain needed information. In appropriate cases this procedure is usually adopted by the Court. Recording of the proceedings by the Court generally is not noted by the Court. Is it improper for the Chief Justice to hear the case? Was the dismissal totally unjust and unfair for

21

not recording the reasons? The petitioner obviously with half-baked knowledge  in  law  mixed  up  the  language  as  “improper  for  Chief justice of india to hear it”, “Dismissal of the ‘grouse’ of the petitioner was totally unjust, unfair, arbitrary and unlawful, flagrant violation of mandate of Article 14”, “Violation of the sacred oath of office” and to “declare Justice A.M. Ahmadi unfit to hold the office as Chief justice of india”. When these imputations were pointed out to the petitioner by  a  three-Judge  Bench  presided  over  by  brother  Verma,  J.  while dismissing the second writ petition, to be scandalous and reckless, he had stated that he “stood by” those allegations. He reiterated the same with justification in his preliminary submissions. He has stated that the  accusations  made were  truthful  and ‘carefully’ worded.  In  this backdrop  scenario,  the  effect  of  these  imputations  is  obviously reckless  apart  from scandalising this  Court,  in  particular  the  Chief justice of india and was intended to foul the process of the Court or lower or at any rate tends to lower the authority of the Court in the estimate  of  the  public  and  tends  to  undermine  the  efficacy  of  the judicial process. It would, therefore, be clear that the accusations are gross contempt. At the height of it, he stated that since the first writ petition was not disposed of by a Bench of not less than five Judges, the writ petition was not dismissed in the eye of law and the order of dismissal  is  non  est  and  it  is  “not  decided  and  disposed  of constitutionally”. This assertion of the petitioner flies in the face of the judicial finality of the order of this Court and the assertion tends to question the authority of the Court. It creates tendency to obstruct the administration  of  justice  and,  therefore,  it  would  be  an  outrageous criminal contempt.”

20. This Court also considered the allegation whether the Chief Justice could not

constitute the Benches, where imputations were made against him; this was also

held aggravate the contempt. This Court has laid down that when imputations were

made  against  the  Chief  Justice,  it  is  the  prerogative  of  the  Chief  Justice  to

constitute the Benches and assign judicial business, and it would not hinge on the

whim of the litigant. This Court has observed :

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“26. When  imputations  were  made  against  the  Chief  Justice,  the petitioner assumed, in our view, “wrongly” that the CHIEF JUSTICE OF INDIA cannot  constitute  benches  nor  should  he  discharge  the functions of Chief Justice until the matter is decided. On appointment by the President by a warrant and on his taking oath of office, the CHIEF  JUSTICE  OF  INDIA  becomes  entitled  to  discharge  the functions and duties of that office including constitution of benches and  assignment  of  judicial  work  to  judges  as  per  procedure.  This responsibility flows from the office and none including a litigant has right  to  demand  for  contra-position.  As  regards  his  personal disposition to hear a case by a bench of which he is a member, it is his own personal  volition.  The Chief Justice’s prerogative to constitute benches and assignment of judicial business would not hinge on the whim of a litigant. 27. The decisions of different benches are the decisions of the Court. For the convenient transaction of business, the senior Judge among the members composing the bench gets the privilege to preside over the  bench  but  the  decision  is  that  of  the  Court.  The  members composing the bench collectively speak for the Court and would bear collective responsibility for the decision unless separate opinions are expressed  by  individual  members  composing  the  bench.  Majority opinion  is  the  law  as  envisaged  under  Article  145(5)  of  the Constitution. Their opinion or order thus is the opinion or order of the Court. The minority opinion also would form part of the judgment or order but remains the minority view. The Chief Justice is first among the colleagues.”

“52. Omission  to  record  reasons,  according  to  the  petitioner,  is violative of the principles of natural justice. The Chief justice of india has committed impropriety in deciding the matter. As stated earlier, the decision is that of the Bench on behalf of the Court and the Chief Justice,  being  the  seniormost  among  the  members  constituting  the Bench, had spoken on behalf of the Bench. Therefore, the attribution of improper motives scandalises the efficacy of judicial adjudication and per se contumaciously lowers or at any rate tends to lower the dignity or authority of the Court. The prayer for prosecution of the Chief Justice, though sought in Item 14(a) and (d) to be withdrawn,

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which  would  be  of  no  consequence,  is,  therefore,  unbelievably outrageous contempt. 61. Item 13 relates to the interference with the judicial management of the Court and the duty of a Judge. When an accusation is made against the presiding Judge, by implication, until the matter is decided, the Presiding Officer has to desist from discharging the judicial duties by his  proceeding  on  leave  and  the  seniormost  puisne  Judge  would assume the office of the Chief Justice. This is a deliberate interference in the judicial management tending to sow disaffection in the efficacy of dispensation of justice. The further accusation that the Chief Justice of India should not constitute a Bench of the Judges appointed during his tenure so that “he (Chief Justice of India)” “may not directly or indirectly influence any of the Judges hearing the matter”. It would, thus, be in unequivocal loud expression that the contemnor attributed motives to the Chief Justice of India that the Judges appointed during his tenure as Chief Justice are amenable to his influence in judicial adjudication and would decide the causes  by pressure or  influence directly or indirectly brought by the Chief Justice of India. Equally, it is a corollary that these Judges are amenable to influence and thereby they  do  not  decide  the  cases  posted  before  them  legally  and objectively. The Court is subject to pressures and decides cases under influence. These accusations are flagrantly outrageous to scandalise the  Court.  Though  the  contemnor  has  sought  leave  to  modify  this statement, ultimately, in his amended statement, he did not touch upon this aspect of the matter. In other words, as stated earlier, he stood by his  averments  calculatedly  made.  His  justification that  Justice  P.N. Bhagwati  (as  he  then  was)  decided  first  S.P.  Gupta  case when allegations against Chief Justice of India Chandrachud were made has no application. In a judicial proceedings taken by this Court, the office of the Chief Justice of India was directly involved in appointment of additional Judges or extension of their tenure as additional Judges or their transfer. The Chief  Justice of  India reclused himself from the Bench; resultantly, the senior most puisne Judge came to preside over that Bench. Thus, the contemnor has committed the contempt of this Court under Article 129 of the Constitution.”

21. This Court has also laid down in Dr. D C Saxena (supra) that it was the duty

of the Chief Justice to assign judicial work to brother Judges. By doing so, he did

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not become a Judge in his own cause. It is contempt to imply that the Chief Justice

would assign it to a Bench which would not pass an order adverse to him. It is also

contempt to imply that the Judges would be so amenable to comply that the Bench

which heard the second writ petition could not have heard it. This Court has laid

down these allegations aimed at bringing the administration of justice in disrepute.

This Court has observed :

“81. It is the duty of the Chief Justice of a court to assign judicial work  to  his  brother  Judges.  It  was,  therefore,  the  duty  of  the respondent to assign the second writ petition to a Bench to hear it. By doing so he did not, as is alleged, become a Judge in his own cause. It is  contempt  to  imply,  as  the  alleged  contemnor  does,  that  the respondent would assign it to a Bench which would not pass an order adverse to him. It is also contempt to imply that Judges would be so amenable. To plead that the Bench that heard the second writ petition could not have heard it and, therefore, could not have dismissed it and that it is deemed to be still pending is to add to the contempt. These allegations are also aimed at bringing the administration of justice into disrepute.”

22. The submissions so raised,  and averments so made, in this petition, and the

entire scenario created by filing of two successive petitions, are really disturbing a

lot. The entire judicial system has been unnecessarily brought into disrepute for no

good cause whatsoever. It passes comprehension how it was, that the petitioner

presumed, that there is an FIR lodged against any public functionary. There is an

averment  made  in  the  writ  petition  that  it  is  against  the  highest  judicial

functionaries; that FIR has been recorded. We do not find reflection of any name of

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the Judge of this Court in the FIR. There is no question of registering any FIR

against any sitting Judge of the High Court or of this Court as it is not permissible

as per the law laid down by a Constitution Bench of 5 Hon’ble Judges of this Court

in the case of  K. Veeraswami v. Union of India (1991) 3 SCC 655 wherein this

Court  observed  that  in  order  to  ensure  the  independence  of  the  judiciary  the

apprehension that the Executive being largest  litigant,  it  is  likely to misuse the

power to prosecute the Judges. Any complaint against a Judge and investigation by

the CBI if given publicity, will have a far reaching effect on the Judge and the

litigant public. The need, therefore, is of judicious use of action taken under the

Act. There cannot be registration of any FIR against a High Court Judge or Chief

Justice of the High Court or the Supreme Court Judge without the consultation of

the  Hon’ble  Chief  Justice  of  India  and,  in  case  there  is  an  allegation  against

Hon’ble  Chief  Justice  of  India,  the  decision  has  to  be  taken  by  the  Hon’ble

President, in accordance with the procedure prescribed in the said decision. Thus,

the instant petitions, as filed, are a misconceived venture inasmuch, as the petition

wrongly presupposes that investigation involves higher judiciary, i.e. this Court’s

functionaries  are  under the scanner  in the aforesaid case;  that  independence of

judiciary cannot  be left  at  the mercy of  the CBI or  that  of  the police is  a  red

herring.  There cannot  be any FIR even against  the Civil  Judge/Munsif  without

permission of the Chief Justice of the concerned court; and rightly, FIR has not

26

been registered against any sitting Judge. Otherwise, on unfounded allegations, any

honest Judge to the core, can be defamed, and reputation can be jeopardized. No

Judge can be held responsible for what may, or has happened in the corridors, or

for ‘who purports to sell whom’. The alleged actions of a retired Judge of a High

Court, allegedly assuring and promising, a ‘favourable’ decision in the aforesaid

circumstances  of  the  case  which  was  then  pending  before  this  Court,  in  the

aforesaid circumstances and has assured favourable orders, begs the question, and

we wonder, as to what favourable orders have been passed. As is apparent from the

aforesaid narration of facts, there was no favourable order granted by this Court in

favour of the medical college for the current academic session 2017-18, rather its

inspection for considering confirmation of letter of permission for the next year

2018-19 had been ordered. The decision will be in the hands of the MCI. After

decision has been rendered on 18.9.2017 by this Court, an FIR has been lodged and

it appears that money was yet to be exchanged. The FIR dated 19.9.2017 reflects

that Mr. B.P. Yadav, Justice Quddusi, Ms. Bhawana Pandey, and Mr. Sudhir Giri

were likely to meet Mr. Biswanath Agarwala for getting favourable order at Delhi

shortly; whereas this Court has already decided the mater on 18.9.2017. Thus it is a

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.       

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23. There is no conflict of interest in such a matter. In case Judge is hearing a

matter and if he comes to know that any party is unscrupulously trying to influence

the decision making or indulging in mal practices, it is incumbent upon the Judge

to take cognizance of such a matter under Contempt of Courts Act and to deal with

and punish such person in accordance with law as that is not the conflict of interest

but the purpose for which the entire system exists. Such things cannot be ignored

and recusal of a Judge cannot be asked on the ground of conflict of interest, it

would be the saddest day for the judicial system of this country to ignore such

aspects on the unfounded allegations and materials. It was highly improper for the

petitioner to allege conflict of interest in the petition filed that the Hon’ble Chief

Justice  of  India  should  not  hear  on  judicial  side  or  allocate  the  matter  on  the

administrative  side.  It  appears  that  in  order  to  achieve  this  end  the  particular

request has been made by filing successive petitions day after the other and prayer

was made to avoid the Hon’ble Chief Justice of India to exercise the power for

allocation of cases which was clearly an attempt at forum hunting and has to be

deprecated in the strongest possible words. Making such scandalous remarks also

tantamount to interfering with administration of justice, an advocate cannot escape

the  responsibility  on  the  ground  that  he  drafted  the  same  in  his/her  personal

capacity as laid down in Shamsher Singh Bedi v. High Court of Punjab & Haryana

(1996) 7 SCC 99. In Charan Lal Sahu v. Union of India (1988) 3 SCC 255, this

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Court has observed that in a petition filed under Article 32 in the form of PIL

attempt of mudslinging against the advocates, Supreme Court and also against the

other constitutional institutions indulged in by an advocate in a careless manner,

meaningless  and  as  contradictory  pleadings,  clumsy  allegations,  contempt  was

ordered to be drawn. The Registry was directed not to entertain any PIL petition of

the petitioner in future.

24. In R. K. Anand v. Delhi High Court (2009) 8 SCC 106, this Court observed

that  there  could  be  ways  in  which  conduct  and  action  of  malefactor  was

professional misconduct. The purity of the court proceedings has to be maintained.

The Court does not only have the right but also an obligation to protect itself and

can bar the malefactor from appearing before the Court for an appropriate period of

time. There is a duty cast upon an Advocate to protect the dignity of this Court not

to scandalize the very institution as observed in the said decision.

25. In  Leila  David  v. State  of  Maharashtra (2009)  10  SCC  337  this  Court

observed  that  making  of  scandalous  remarks  against  High  Court  Judges  and

seeking their punishment on the allegation of their being party to genocide petition

was dismissed and incumbent was punished. Scandalous allegation cannot be made

against the Judges as observed in  Amrik Singh  v. State (Delhi Admn.) (1971) 3

SCC 215. In  Bal Kishan Giri v. State of U.P. (2014) 7 SCC 280 this Court has

observed that the allegation that the accused had the links with 3 Judges of the

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High  Court  who  would  favour  in  getting  the  bail,  this  Court  held  that  such

allegations are too serious, scandalous and admittedly sufficient to undermine the

majesty of law and dignity of the court amounting to contempt. Plea by contemnor

a practicing lawyer that he was misguided by another advocate is an afterthought.

He must since have been fully aware of the consequence of allegations made by

him. Sentence of simple imprisonment was imposed by the High Court and the

same was confirmed by this Court. This Court has also observed that the power for

contempt is a rule specified which by very nature calls for exercise with great care

and caution and such power ought to be exercised only where silence is nothing

but an option. The power to punish for contempt is to secure public respect and

care for judicial process.

26. This Court  considered various categories of  forum shopping in  Union of

India  &  Ors.  v.  M/s.  CIPLA  Ltd.  &  Anr. (2017)  5  SCC  262.  Even  making

allegations of a per se conflict of interest require the matter could be transferred to

another Bench, has also been held to be another form of forum hunting. This Court

has considered various decisions thus :

“146. The learned Solicitor General submitted that Cipla was guilty of forum shopping inasmuch as it had filed petitions in the Bombay High Court,  the Karnataka High Court and also an affidavit in the Delhi High Court as a member of the Bulk Drug Manufacturers Association and had eventually approached the Allahabad High Court for relief resulting in the impugned judgment and order dated 3-3-20041. It was submitted  that  since  Cipla  had  approached  several  constitutional

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courts for relief, the proceedings initiated in the Allahabad High Court clearly amount to forum shopping. 147. We are not at all in agreement with the learned Solicitor General. Forum shopping takes several hues and shades and Cipla’s petitions do not fall under any category of forum shopping. 148. A  classic  example  of  forum  shopping  is  when  a  litigant approaches one Court for relief but does not get the desired relief and then approaches another Court for the same relief. This occurred in Rajiv Bhatia v.  Govt.  (NCT of  Delhi).  The respondent  mother of  a young child had filed a petition for  a writ  of  habeas corpus in the Rajasthan High Court and apparently did not get the required relief from that Court. She then filed a petition in the Delhi High Court also for  a  writ  of  habeas  corpus  and  obtained  the  necessary  relief. Notwithstanding  this,  this  Court  did  not  interfere  with  the  order passed  by  the  Delhi  High  Court  for  the  reason  that  this  Court ascertained the views of the child and found that she did not want to even talk to her adoptive parents and therefore the custody of the child granted by the Delhi High Court to the respondent mother was not interfered with. The decision of this Court is on its own facts, even though it is a classic case of forum shopping. 149. In  Arathi Bandi v.  Bandi Jagadrakshaka Rao this Court noted that jurisdiction in a court is not attracted by the operation or creation of fortuitous circumstances. In that case, circumstances were created by  one  of  the  parties  to  the  dispute  to  confer  jurisdiction  on  a particular  High  Court.  This  was  frowned  upon  by  this  Court  by observing  that  to  allow  the  assumption  of  jurisdiction  in  created circumstances would only result in encouraging forum shopping. 150. Another case of creating circumstances for the purposes of forum shopping was World Tanker Carrier Corpn. v. SNP Shipping Services (P)  Ltd. wherein  it  was  observed  that  the  respondent/plaintiff  had made  a  deliberate  attempt  to  bring  the  cause  of  action,  namely, a collision between two vessels on the high seas within the jurisdiction of the Bombay High Court. Bringing one of the vessels to Bombay in order  to  confer  jurisdiction  on  the  Bombay  High  Court  had  the character of forum shopping rather than anything else. 151. Another form of forum shopping is taking advantage of a view held by a particular High Court in contrast to a different view held by another High Court. In Ambica Industries v. CCE31 the assessee was from Lucknow. It challenged an order passed by the Customs, Excise

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and  Service  Tax  Appellate  Tribunal  (“CESTAT”)  located  in  Delhi before the Delhi High Court. Cestat had jurisdiction over the State of Uttar Pradesh, NCT of Delhi and the State of Maharashtra. The Delhi High Court did not entertain the proceedings initiated by the assessee for want of  territorial jurisdiction.  Dismissing the assessee’s appeal this Court gave the example of an assessee affected by an assessment order in Bombay invoking the jurisdiction of the Delhi High Court to take advantage of the law laid down by the Delhi High Court or an assessee affected by an order of assessment made at Bombay invoking the jurisdiction of the Allahabad High Court to take advantage of the law laid down by it and consequently evade the law laid down by the Bombay High Court. It was said that this could not be allowed and circumstances such as this would lead to some sort of judicial anarchy. 152. Yet another form of forum shopping was noticed in  Jagmohan Bahl v. State (NCT of Delhi) wherein it was held that successive bail applications filed by a litigant ought to be heard by the same learned Judge,  otherwise  an  unscrupulous  litigant  would  go  on  filing  bail applications  before  different  Judges  until  a  favourable  order  is obtained.  Unless  this  practice  was  nipped  in  the  bud,  it  would encourage unscrupulous litigants and encourage them to entertain the idea that they can indulge in forum shopping, which has no sanction in law and certainly no sanctity. 153. Another  category  of  forum shopping  is  approaching  different courts for the same relief by making a minor change in the prayer clause of the petition. In  Udyami Evam Khadi Gramodyog Welfare Sanstha v.  State of U.P. it  was  noticed by this Court that four writ applications were filed by a litigant and although the prayers were apparently different, the core issue in each petition centred round the recovery of the amount advanced by the bank. Similarly, substituting some petitioners for  others  with a view to confer  jurisdiction on a particular court would also amount to forum shopping by that group of petitioners.  154. Finally  and  more  recently,  in  Supreme  Court Advocates-on-Record  Assn. v.  Union  of  India  (Recusal  Matter) Khehar,  J.  noticed  yet  another  form  of  forum  shopping  where  a litigant makes allegations of a perceived conflict of interest against a Judge requiring the Judge to recuse from the proceedings so that the matter could be transferred to another Judge.

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155. The decisions referred to clearly lay down the principle that the Court is required to adopt a functional test vis-à-vis the litigation and the litigant. What has to be seen is whether there is any functional similarity  in  the  proceedings  between  one  court  and  another  or whether there is some sort of subterfuge on the part of a litigant. It is this functional test that will determine whether a litigant is indulging in forum shopping or not.”

27. In view of the aforesaid it is clear that the submission raised that Hon’ble

Chief  Justice  of  India  should  not  hear  the  matter  or  should  not  assign  it  on

administrative side is highly improper. In our opinion there was no impropriety in

assigning this matter to this Bench rather it was a constitutional imperative as per

the mandate of  the 5 Judge Bench,  Supreme Court  Rules,  2013 as well  as the

decision in  Dr. D C Saxena (supra).  It  was an attempt of choosing a forum by

submitting that Hon’ble Chief Justice of India should not have formed the Bench.

Even Court No.2 in its order dated 9.11.2017 did not exclude Hon’ble Chief Justice

of India from hearing the matter.

28. Yet another disturbing feature which aggravates the situation is that prayer

has been made, that one of us, Justice A. M. Khanwilkar, should recuse from the

matter. This  is  nothing but  another  attempt  of  forum hunting which cannot  be

permitted. Rather this kind of prayer was held to be contemptuous, aggravating the

contempt in the case of  Dr. D C Saxena (supra). This is yet another strategy to

succeed in the attempt that the Hon’ble CJI should not take up the matter himself

in the judicial side and administrative side for what may  apply to and hold good

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for one of us will be equally applicable to Hon’ble CJI. Though it was submitted

that there is no allegation against Justice A. M. Khanwilkar but since he decided

the matter of medical college with respect to which FIR has been lodged, he should

recuse. In our opinion, rather it is the duty of the Bench to take up such matter

firmly;  such unscrupulous allegations and insinuations cannot be allowed to be

hurled by oral prayer made on behalf of the petitioner for recusal. This is simply

deprecated and we find that it is another attempt to bring the system in disrepute,

casting  of  unwarranted  aspersions  tantamounts  to  seriously  jeopardizing  the

independence of the judiciary.  

29. Though it  is  true,  that  none of  us is above law; no person in the higher

echelons is above the law but, at the same time, it is the duty of both the Bar and

the Bench, to protect the dignity of the entire judicial system. We find that filing of

such petitions and the zest, with which it is pursued, has brought the entire system

in the last few days to unrest. An effort was made to create ripples in this Court;

serious  and  unwanted  shadow  of  doubt  has  been  created  for  no  good  reason

whatsoever by way of filing the petition which was wholly scandalous and ought

not  to  have  been  filed  in  such  a  method  and manner. It  is  against  the  settled

proposition of law. Ultimately after arguing at length, at the end, it was submitted

by the petitioner and her counsel that they were not aiming at any individual. If

that was not so, unfounded allegations ought not to have been made against the

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system and that  too  against  the  Hon’ble  Chief  Justice  of  this  country. In  case

majesty of our judicial system has to survive, such kind of petitions should not

have been preferred that too against the settled proposition of law laid down by this

Court in the aforesaid decisions of this Court in  Dr. D C Saxena (supra) and  K.

Veeraswami (supra).

30. Submission was also made that unprecedented hearing was done on Friday

by a Constitution Bench of this Court. It was a fait accompli and circumstances

compelled hearing on 10.11.2017 as on Thursday in this case, order was passed

bypassing the  power  of  Hon’ble  Chief  Justice  of  India  to  constitute  a  5-Judge

Bench in order of seniority including the Hon’ble Chief Justice of India. It was not

permissible as held by this Court in CJAR and hearing of the instant matter was

scheduled for Monday, i.e. 13.11.2017, and Friday was the only day available on

which the law was required to be settled otherwise judicial order was binding and

it was necessary to decide the question as other Bench had requested the Hon’ble

Chief Justice of India to assign this matter to an appropriate Bench. As Hon’ble

Chief Justice of India had to assign it to a Bench, situation of dilemma was created

for Hon’ble Chief Justice of India whether to assign the matter of CJAR to an

appropriate Bench or to go by the judicial order by constituting a Bench of 5 senior

Judges on 13.11.2017. Thus as per the judicial order matter was required to be

heard on Monday i.e. 13.11.2017. No other working day was intervening on which

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this issue was required to be settled. Thus a Constitution Bench was required to be

constituted on the day which was available for deciding the issue so as to decide

the issue whether by judicial order case can be assigned to a particular Bench or it

is in ambit of power of Hon’ble Chief Justice of India  to assign the case. As that

issue has been settled by the Constitution Bench decision relying on an earlier

decision in the case of Prakash Chand (supra), roster making is the prerogative of

Hon’ble  Chief  Justice  of  India  was  laid  down  in  the  case  of  Prakash  Chand

(supra). Besides the Supreme Court Rules, 2013 also provides that the Hon’ble

Chief  Justice of  India has to assign the case.  The cases cannot be assigned by

judicial order. Such judicial order is simply to be ignored as it is not open to the

Judges  to  decide  which  matter  is  to  be  heard  by  whom  as  laid  down  by

Constitution Bench.  Prayer made that the decision of the Constitution Bench is to

be ignored by us, is wholly unfounded and we must go by the order of the Division

Bench passed on 9.11.2017 and we should refer the matter to 5 seniormost Judges

is preposterous that would include the Hon’ble Chief Justice of India also. The

prayer is per se very contradictory in its nature and has no legs to stand. Let the

good sense prevail over the legal fraternity and amends be made as lot of uncalled

for damage has been made to the great Institution in which public reposes their

faith. We deprecate the conduct of forum hunting that too involving senior lawyer

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of  this  Court.  Such  conduct  tantamounts  wholly  unethical,  unwarranted  and

nothing but forum hunting, as discussed by this Court in the case of Cipla (supra) .

31. On behalf  of  the  petitioner  for  recusal  of  Hon’ble  A M Khanwilkar,  J.,

reliance has been placed on the decision in Ranjit Thakur  v. Union of India & Ors.

(1987)  4  SCC 611 in  which  it  has  been laid  down that  reasonableness  of  the

apprehension or bias in the mind of the party has to be seen. We find that there is

no room for the petitioner to infer the bias. There is no reasonable basis to pray for

recusal of Hon’ble A.M.Khanwilkar, J. In our opinion that tantamount to contempt

of court and an attempt at forum hunting. Reference has also been made to the

decision in  Supreme Court  Advocates on Record Association v. Union of  India

(2016) 5 SCC 808 in which maxim nemo judex in causa sua has been considered,

that no man is to be judge in his own cause, should be held sacred and that maxim

is not to be confined to a case in which he is a party but applies to a cause in which

he has an interest. It is far fetched and too tenuous to submit that any Judge of this

Court much less Hon’ble A.M. Khanwilkar, J. has any interest in the subject matter

and for that reason in spite of there being no allegation in the writ petition, Shri

Justice A. M. Khanwilkar should recuse. There is no room for reasonable suspicion

even in remote and argument is simply too derogatory to be made, probably that

has been made anyhow or somehow to protect the case and to bring disrepute to

this  Court.  We cannot  fall  prey  to  such  unscrupulous  devices  adopted  by  the

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litigants, so as to choose the Benches, as that is a real threat to very existence of the

system itself  and it  would be denigrated in case we succumb to such pressure

tactics.                                                                 

32. The petition is liable to be dismissed and is hereby dismissed.

…………………………J. (R.K. Agrawal)

…………………………J. (Arun Mishra)

New Delhi; ………………………..J. November 14, 2017. (A.M. Khanwilkar)

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