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REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION

WRIT PETITION (CIVIL) NO.174 OF 2012

M. MANOHAR REDDY & ANR. … PETITIONERS

VERSUS

UNION OF INDIA & ORS. … RESPONDENTS

J U D G M E N T  

Aftab Alam, J.

1. The two petitioners, who are advocates of  the High Court of  

Andhra  Pradesh,  have  filed  this  petition  under  Article  32  of  the  

Constitution of India, purportedly in public interest.  This writ petition  

seeks a writ in the nature of quo warranto, quashing the appointment  

of respondent No.3 as a judge of the High Court of Andhra Pradesh  

and a writ in the nature of mandamus commanding the Bar Council of  

Andhra  Pradesh  to  cancel  his  enrolment  as  an  advocate.  The  

quashing of the appointment of respondent No.3 as a judge of the  

High Court  is  sought  on the ground that  the consultation process  

leading to his appointment was vitiated as both the High Court and  

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the Supreme Court Collegia as well as the Central Government failed  

to consider two essential facts; one, at the time of his appointment, a  

criminal trial was pending in which respondent No.3 was not only an  

accused but a proclaimed offender and the other that even at the time  

of  his  enrolment  as  an  advocate  he  had  concealed  the  criminal  

proceedings  and  in  the  relevant  column  of  the  application  for  

enrolment with the Bar Council, he  falsely stated that there was no  

pending proceeding against him.  

2. In order to put the petitioners’ challenge to the appointment of  

respondent  No.3  as  a  judge  of  the  High  Court  in  the  proper  

perspective, it will be useful to give here a brief outline of the relevant  

facts.   

3. The  name  of  respondent  No.3  was  recommended  for  

appointment  as  a  judge  of  the  Andhra  Pradesh  High  Court  on  

November 14, 1998 by the Chief Justice of the High Court with the  

other  two Collegium members agreeing with  the  recommendation.  

The recommendation made by the High Court was received in the  

Supreme  Court  on  February  15,  1999.  At  that  time  the  age  of  

respondent No.3 was 41 years and six months and he had completed  

over  15  years  of  legal  practice.  In  the  resume  prepared  by  the  

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Ministry  of  Law  and  Justice  that  came  to  be  put  up  before  the  

Supreme Court Collegium, respondent No.3 was described as under:

“Shri N.V. Ramana, Advocate:

BIO-DATA

He was enrolled as an Advocate on February  10, 1983. He has practiced in the High Court of Andhra  Pradesh,  Central  and  Andhra  Pradesh  Administrative  Tribunals  and  the  Supreme  Court  of  India  in  Civil,  Criminal,  Constitutional,  Labour,  Service  and  Election  matters.  He has specialized in Constitutional,  Criminal,  Service  and  Inter-State  River  laws.   He  has  handled  about  800  cases  during  the  last  three  years.  He  has  functioned  as  Panel  Counsel  for  Andhra  Bank,  Vysa  Bank, United India Insurance Co. and Food Corporation  of India. He has also functioned as Additional Standing  Counsel for  Central  Government and Standing Counsel  for  Railways  in  the  Central  Administrative  Tribunal  at  Hyderabad.   At  present  he  is  functioning  as Additional  Advocate  General  of  Andhra Pradesh.  His  professional  income  during  the  last  three  years  was  as  tabulated  below:

Year Gross Income Taxable Income

1996-97 7,87,210 2,21,200 1997-98        10,31,465 3,68,950 1998-99        38,95,973         16,94,928”

And the Intelligence Bureau report about him stated as under:

“I.B. REPORT:

He  enjoys  good  personal/professional  image.  Nothing  adverse  against  his  character,  reputation  and  integrity has come to notice, so far. He has also not come  

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to  notice  for  links  with  any  political  party/communal  organization.  

None of his relatives is either serving or has served  earlier as judge in any High Court or Supreme Court.”

4. Following  the  consultative  process  between  the  different  

constitutional  functionaries,  a  notification  was  issued  on  June  19,  

2000 appointing respondent No.3 as a judge of the Andhra Pradesh  

High  Court  and  respondent  No.3  took  the  oath  and  assumed the  

office as a judge of  the Andhra Pradesh High Court  on June 27,  

2000. Since then he is continuously working in that capacity.  

5. It  now  comes  to  light  that  all  through  the  period  when  the  

recommendation was made for his appointment as a judge and the  

notification  was  issued  and  he  assumed the  office  as  a  judge,  a  

criminal  case  was  pending  in  which  respondent  No.3  was  an  

accused. It is, therefore, necessary to look into the criminal case and  

its proceedings. The criminal case in question dates back to the year  

1981 when respondent No.3 was a student of Nagarjuna University.  

The students of the University, it appears, complained of inadequate  

public  transport  facilities  for  commuting  from  their  homes  to  the  

University  as  only  a  few  buses  plying  between  Guntur  and  

Vijayawada  stopped  at  the  University.  They  demanded  that  more  

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buses should stop at the University. As is not uncommon with the  

youth in this country, some of the students of the University took to  

agitation in connection with the demand and at about 8.30 p.m. on  

February 13, 1981, a group of about 30 students put road blocks on  

the GNT road, opposite Nagarjuna University, causing stoppage of all  

vehicles on the road. At about 9.15 p.m., a bus of the State Transport  

Corporation,  on  its  way  from Guntur  to  Vijayawada,  arrived  there  

when there was already a heavy jam and pulled up at the road flank.  

In such situations, unfortunately a State bus is the softest and the  

most vulnerable target. In this case also the State bus became the  

target of the agitating students’ ire. The driver of the bus was pulled  

down  and  the  door  to  the  driver’s  seat  was  damaged.  Some  

miscreants pelted stones on the bus and smashed its windscreen and  

glass windows with iron rods. One of the passengers also received  

some injuries. By this time a police party also came to the spot. At  

this stage, an attempt was made to set fire to the bus by throwing a  

burning oil cloth tied to a rod inside the bus. But, a policeman put out  

the burning cloth and the bus was saved from any further damage.  

Shortly  thereafter  the  police  dispersed  the  agitating  students  and  

restored normalcy. On the same day at 11.00 p.m. the driver of the  

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bus lodged a first information report in connection with the incident at  

Mangalagiri Police Station where it was registered as Crime No. 55 of  

1981 under Sections 147, 342, 427 and 324 of the Penal Code. The  

FIR was against unknown persons and the accused were described  

as “Nagarjuna University students”.    

6. The police  after  investigation drew up a  charge sheet  dated  

October 10, 1983 and on October 19, 1983 submitted it in the court of  

the Munsif Magistrate, Mangalagiri where it was registered as C.C.  

No.229/1983.  From  the  charge  sheet  it  appears  that  in  their  

statements  recorded  under  Section  161  of  the  Code  of  Criminal  

Procedure, the Driver and the Conductor of the bus (apart from some  

other witnesses) identified and named five persons as the student-  

leaders who were leading the agitation on February 13, 1981. The  

charge  sheet,  accordingly,  cited  five  persons  as  accused  and  

respondent No.3 figured among them at serial No. 4. All the accused  

were shown as absconders. The charge sheet, however, does not  

disclose what steps were taken by the investigating officer to secure  

the  presence  of  the  accused.  There  is  no  mention  that  the  

investigating officer  ever tried to obtain from the court  warrants of  

arrest or processes under Sections 82 and 83 of the Code of Criminal  

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Procedure for apprehending the accused. They were simply shown  

as absconders without observing the procedure sanctioned by law  

before an accused can be called an absconder.

7. The  fact  of  the  matter,  however,  is  that  this  Crime  Case  

No.229/83  (later  re-numbered  as  CC  No.75/87  and  then  CC  

No.167/91)  was undeniably  pending at  the time of  appointment  of  

respondent No.3 as a judge of the High Court and it is contended on  

behalf  of  the  petitioners  that  the  failure  to  take  into  account  the  

pendency of the criminal case while his name was recommended by  

the High Court Collegium and approval and consent was accorded by  

the Supreme Court Colllegium and the Central Government for his  

appointment  as  a  judge  of  the  High  Court  deeply  flawed  the  

participatory consultative process as envisaged in Article 217(1) of  

the Constitution and as developed by the decisions of this Court in  

Supreme Court  Advocates-on–Record Association1 and later  on in  

Special Reference No. 1 of 19982. It is submitted the appointment of  

the respondent resulting from a consultation process that  failed to  

take  into  account  an  important  and  relevant  fact  was  completely  

illegal  and  was,  therefore,  liable  to  be  quashed  by  a  writ  of  quo  

1 (1993) 4 SCC 441 2 (1998) 7 SCC 739  

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warranto. The respondent had no right to hold the office of a High  

Court judge and this Court must step in to correct the grave error  

committed by his appointment.  

8. It needs to be noted here that the learned Attorney General was  

requested to address the Court on the question of maintainability of  

this  writ  petition that  seeks a writ,  quashing the appointment  of  a  

judge of the High Court. The Attorney General submitted that the writ  

petition  was  not  maintainable  and  was  liable  to  be  dismissed  

summarily. He submitted that the prayer for a writ of  quo warranto  

quashing the appointment of respondent No.3 was only a camouflage  

and what the petitioners really aimed at was the removal of the judge  

who had been in office for over twelve years. The removal of a judge  

in office, the Attorney maintained, was an issue directly related to the  

independence of  judiciary that  is  fundamental  to the Constitutional  

scheme. The Attorney pointed out that in order to make the judiciary  

independent and to make it possible for the judges to discharge their  

duties without fear or favour the Constitution firmly secured the tenure  

of a judge and granted that a judge of any of the superior courts could  

only be removed from office on the basis of an impeachment motion  

passed by the Parliament as provided under Article 124(4) (in the  

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case of  a judge of  the Supreme Court)  and Article  217 read with  

Article  124(4)  (in  the  case  of  a  judge  of  the  High  Court).  The  

Constitution did not recognize any other mode for the removal of a  

judge. Any deviation from the Constitutional process in the garb of  

quashing  the  appointment  by  a  writ  of  quo  warranto would  be  

violative of  the scheme of  the Constitution and deleterious for  the  

independence  of  the  judiciary.  He  further  submitted  that  if  the  

petitioners  thought  that  the  appointment  of  respondent  No.3  as  a  

judge of the Andhra Pradesh High Court was wrong and there were  

grounds for his removal from the office, they could always bring the  

matter  to  the  notice  of  the  Parliament  which  alone  was  the  

Constitutional forum competent to remove a judge of the High Court  

from his office from any misbehaviour committed either before or after  

his appointment as a judge. He added that in case the Parliament  

declined  to  take  any  action  for  the  removal  of  the  judge  on  the  

petitioner’s complaint the Court was powerless in the matter and the  

removal of the judge could not be brought about by the device of  

quashing  his  appointment.  He  went  so  far  as  to  say  that  in  

entertaining  this  writ  petition  on  merits  the  Court  would  be  

overstepping its Constitutional limits.  

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9. Mr. Shanti Bhushan, learned senior advocate appearing for the  

petitioners, on the other hand, submitted that writ petition raised the  

issue of inviolability and credibility of appointment to the high office of  

the High Court judge. He further submitted that the Court must not be  

seen as protecting someone wrongly appointed as a  judge of  the  

High Court  for,  the people’s  faith  and trust  and confidence in  the  

courts  and  the  judges  presiding  over  the  courts  was  as  much  

necessary to support the independence of judiciary as the guarantees  

under  the  Constitution  and  the  laws.  Mr.  Shanti  Bhushan  further  

submitted that in the past also similar issues came before the Court  

and the Court never declined to examine the merits of the case and  

passed appropriate orders.  In support  of  the submission, he relied  

upon the decisions of this Court in (i)  Shri Kumar Padma Prasad v.  

Union of India3, (ii) Shanti Bhushan v. Union of India4 and (iii) Mahesh  

Chandra Gupta v. Union of India5.   

10. The second case cited by Mr. Shanti Bhushan is one which he  

himself had filed as public interest litigation, assailing the extension  

granted to respondent No.2 in that case as an Additional Judge of the  

Madras High Court.  He relied upon paragraph 25 of the judgment in  

3 (1992) 2 SCC 428 4 (2009) 1 SCC 657 5 (2009) 8 SCC 273

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that case but, we fail to see anything in that decision that may serve  

as an authority on the question of maintainability of a writ petition for  

quashing  the  appointment  of  a  judge  after  many  years  of  his  

assuming the office.

11. However, the first and the third case relied upon by Mr. Shanti  

Bhushan deserve consideration.  

12. In  Shri  Kumar  Padma  Prasad,  the  Court  dealt  with  a  writ  

petition that  was filed originally before the Gauhati  High Court  but  

was later transferred and brought to this Court. The writ petition was  

filed at the stage where though the warrant had been issued under  

the hand and seal of the President of India, appointing one of the  

respondents in that case, namely, K.N. Srivastava as a judge of the  

Gauhati  High  Court,  he  was  still  to  make  and  subscribe  the  

oath/affirmation under Article 219 of the Constitution. This means that  

he had not entered upon the office of the judge and the writ petition  

was filed before the matter had reached the stage of Article 217 as  

the  person  whose  appointment  was  under  challenge  was  yet  to  

assume the office of the judge. In that case this Court indeed stepped  

in to interfere and to stop the appointment from materializing. This  

Court found and held that on the date of issue of the warrant by the  

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President of India K.N. Srivastava was not qualified to be appointed  

as  a  judge  of  the  High  Court.  It,  accordingly,  quashed  his  

appointment as a judge of the Gauhati High Court and directed the  

Union of India and the other concerned respondents not to administer  

the oath or affirmation under Article 219 of the Constitution to K.N.  

Srivastava.  K.N. Srivastava was similarly restrained from making and  

subscribing  the  oath  or  affirmation  in  terms  of  Article  219  of  the  

Constitution of India.  It is, thus, to be noted that the Court intervened  

in the matter before the person concerned had assumed the office of  

the judge on the ground that he was not qualified to be appointed as  

a judge or,  in  other  words,  was not  eligible to be appointed as a  

judge.  

13. The concepts of “eligibility” and “suitability” were later examined  

by this Court in the decision in Mahesh Chandra Gupta (to which one  

of us Aftab Alam, J. was also a Member). In Mahesh Chandra Gupta,  

challenge was made to the appointment of a judge of the Allahabad  

High Court after the incumbent had assumed his office. In the writ  

petition,  as it  was originally  filed,  the appointment  was questioned  

only  on the ground that  the incumbent  did  not  possess the basic  

eligibility for being appointed as a judge of the High Court. Later on,  

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the appointment was also challenged on grounds of suitability and  

want of effective consultation process by taking additional pleas in  

supplementary  affidavits.  Kapadia,  J.  (as  His  Lordship  then  was),  

speaking for the Court brought out the distinction between “eligibility”  

and “suitability” and pointed out that eligibility was based on objective  

facts and it  was,  therefore,  liable to judicial  review.  But,  suitability  

pertained to the realm of opinion and was, therefore, not amenable to  

any  judicial  review.  The  Court  also  examined  the  class  of  cases  

relating to appointment  of  High Court  judges that  might  fall  under  

judicial scrutiny and concluded that judicial review may be called for  

on two grounds namely, (i) “lack of eligibility” and (ii) “lack of effective  

consultation”. In paragraphs 39, 43 and 44 of the judgment the Court  

said:

“39. At  this  stage,  we  may  state  that,  there  is  a  basic difference between “eligibility” and “suitability”. The  process of judging the fitness of a person to be appointed  as  a  High  Court  Judge falls  in  the  realm of  suitability.  Similarly, the process of consultation falls in the realm of  suitability.  On the other hand, eligibility at the threshold  stage  comes  under  Article  217(2)(b).  This  dichotomy  between  suitability  and  eligibility  finds  place  in  Article  217(1)  in  juxtaposition  to  Article  217(2).  The  word  “consultation”  finds  place in  Article  217(1)  whereas the  word “qualify” finds place in Article 217(2).

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43. One  more  aspect  needs  to  be  highlighted.  “Eligibility” is an objective factor. Who could be elevated is  specifically  answered  by  Article  217(2). When  “eligibility” is put in question, it could fall within the  scope of judicial  review.  However, the question as to  who should be elevated,  which essentially  involves the  aspect of “suitability”, stands excluded from the purview of  judicial review.

44. At this stage, we may highlight the fact that there is  a  vital  difference  between  judicial  review  and  merit  review. Consultation, as stated above, forms part of the  procedure to test the fitness of a person to be appointed a  High  Court  Judge  under  Article  217(1).  Once  there  is  consultation,  the content  of  that  consultation is  beyond  the  scope of  judicial  review,  though lack  of  effective  consultation  could  fall  within  the  scope  of  judicial  review. This  is  the  basic  ratio  of  the  judgment  of  the  Constitutional  Bench  of  this  Court  in  Supreme  Court   Advocates-on-Record Assn. and Special Reference No. 1   of 1998.

(emphasis added)

14. In paragraphs 71 and 74 of the judgment again the Court  

observed as under:  

Justiciability of appointments under Article 217(1)    

71.  In  the  present  case,  we  are  concerned  with  the  mechanism  for  giving  effect  to  the  constitutional  justification for judicial review. As stated above, “eligibility”  is  a  matter  of  fact  whereas  “suitability”  is  a  matter  of  opinion. In cases involving lack of “eligibility” writ of quo  warranto  would  certainly  lie.  One  reason  being  that  “eligibility”  is  not  a  matter  of  subjectivity.  However,  “suitability” or “fitness” of a person to be appointed a High  

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Court Judge: his character, his integrity, his competence  and the like are matters of opinion.

74. It  is  important  to  note  that  each  constitutional  functionary  involved  in  the  participatory  consultative  process is given the task of  discharging a participatory  constitutional function; there is no question of hierarchy  between these constitutional functionaries. Ultimately, the  object of reading such participatory consultative process  into  the constitutional  scheme is  to  limit  judicial  review  restricting it  to  specified areas by introducing a judicial  process  in  making  of  appointment(s)  to  the  higher  judiciary. These are the norms, apart from modalities, laid  down in Supreme Court Advocates-on-Record Assn. and  also in the judgment in Special Reference No. 1 of 1998,   Re.  Consequently,  judicial  review  lies  only  in  two  cases,  namely,  “lack  of  eligibility”  and  “lack  of  effective consultation”. It will not lie on the content of  consultation.

(emphasis added)

15. In view of the decision in Mahesh Chandra Gupta, the question  

arises  whether  or  not  the  case  in  hand  falls  in  any  of  the  two  

categories that are open to judicial review. Admittedly, the eligibility of  

respondent No.3 is not an issue. Then, can the case be said to raise  

the issue of “lack of effective consultation”.     

16. Mr. Shanti Bhushan strongly argued that the consultation that  

led to the appointment of respondent No.3 as the judge of the Andhra  

Pradesh  High  Court  was  completely  deficient  for  not  taking  into  

consideration that he was accused in a pending criminal case and as  

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a result, the appointment of respondent No.3 was wholly vitiated and  

it was fit to be quashed by this Court. In support of the submission  

Mr. Shanti Bhushan heavily relied upon the decision of this Court in  

Centre for PIL and another v. Union of India and another6 (commonly  

called as the CVC case). Mr. Shanti Bhushan submitted that in that  

case this Court had made institutional integrity as part of eligibility  

criteria and had, thus, highly raised the standards of qualification for  

appointment to a public office.

17. In the CVC case a three judge Bench of this Court held that the  

recommendation for appointment of Shri P.J. Thomas as the Central  

Vigilance  Commissioner  was  non-est  in  law  and,  consequently,  

quashed  his  appointment  to  that  post.  The  recommendation  for  

appointment of Shri P.J. Thomas was made, by a majority of 2:1, by a  

committee  consisting  of  (i)  the  Prime  Minister,  (ii)  the  Minister  of  

Home Affairs and (iii) The Leader of Opposition in the House of the  

People (referred to in the judgment as the High-Powered Committee  

or the HPC). The Court held that the recommendation was non-est  

because the HPC had failed to take into consideration the pendency  

of case No. 6 of 2003 (relating to the import of Palmolein oil by the  

Kerala  Government),  in  which  the  Government  of  Kerala  had  6 (2011) 4 SCC 1

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accorded sanction for the prosecution of Shri P.J. Thomas (among  

others) for committing offences punishable under Section 120-B of  

the Penal Code read with Sections 13 (i)  (d)  of  the Prevention of  

Corruption Act  and had based its  recommendation entirely  on the  

blanket clearance given to Shri  P.J.  Thomas by the CVC (then in  

office) and the fact that during the pendency of the criminal case Shri  

P.J. Thomas was appointed as Chief Secretary of Kerala, then as the  

Secretary  of  Parliamentary  Affairs  and  subsequently  as  the  

Secretary, Telecom.

18. At  the  first  glance  the  CVC  case  appears  to  have  some  

parallels with the case in hand and in order to apply the decision in  

the CVC case to the present case Mr. Shanti Bhushan extensively  

cited from the judgment the passages where this Court identified the  

CVC  as  an  institution  and  an  “integrity  institution”,  stressed  the  

imperative to uphold and preserve the integrity of that institution and  

observed that the recommendation for appointment as CVC should  

be  not  only  with  reference  to  the  candidate  but  the  overarching  

consideration should be the institutional integrity of the office. (See  

paragraphs 34-37, 42, 43, 47, 59 and 89 of the judgment).            

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19. We  have  given  the  most  careful  consideration  to  the  CVC  

decision and the submissions made by Mr. Shanti Bhushan on the  

basis of that decision, all the time bearing in mind that the Court must  

not  overlook  or  condone  something  that  may  have  the  effect  of  

lowering down the people’s faith or trust in the judges or in courts. But  

we find that though there are some superficial similarity between the  

CVC case and the case in hand, the two cases are quite different in  

their core issues and we find it  impossible to justly apply the CVC  

decision to the facts of the case in hand.   

20. In  the  CVC  case  the  HPC  was  not  unaware of  Shri  P.J.  

Thomas being an accused in a pending case for offences punishable  

under Sections 120-B of the Penal Code read with Section 13(1)(d) of  

the Prevention of Corruption Act.  The recommendation that the HPC  

made in exercise of the statutory power under the proviso to Section  

4 of the Central Vigilance Commission Act, 2003 was in a sense in  

defiance of the pending trial before the criminal court. The genesis  

and the developments taking place in the criminal case are discussed  

in paragraph 8 to 21 of the judgment in the CVC case from which it  

appears that the institution of the case was preceded by the report of  

the Comptroller and Auditor General, followed by the report by the  

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Public Undertaking Committee of the Kerala Assembly. On the basis  

of the reports, at least two writ petitions were filed (unsuccessfully)  

seeking direction of the High Court for institution of a criminal case.  

The criminal case was finally filed after the new government came to  

power in the State following the election on May 20, 1996. Even after  

the institution of the case the matter had repeatedly gone to the High  

Court and traveled up to this Court. The Government of Kerala had  

made  repeated  requests  to  the  Central  Government  in  the  

Department  of  Personnel  and  Training  for  grant  of  sanction  for  

prosecution of Shri P.J. Thomas. The matter had gone to the Central  

Vigilance Commission and there were its recommendations on record  

for initiation of disciplinary proceedings against Shri P.J. Thomas. In  

paragraph 44 of the judgment, the Court pointed out that between  

2000 and 2004 there were at least six noting of the DoPT suggesting  

that penalty proceedings may be initiated against Shri P.J. Thomas.  

21. In short, the fact about the pendency of the criminal case and  

Shri P.J. Thomas being one of the accused in the case was writ large  

all over the record before the HPC. The fact was not only within the  

personal knowledge of each of the three members of the HPC but it  

was in public domain. Hence, the recommendation of the HPC was  

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not in ignorance of the criminal case.  The recommendation was for  

appointment  of  Shri  P.J.  Thomas  as  the  Central  Vigilance  

Commissioner notwithstanding his being an accused in the criminal  

case and the HPC appeared not  to  see the criminal  case as any  

impediment  in  the  way of  his  appointment  as  the  Chief  Vigilance  

Commissioner.

22. Let us now examine how far the facts of the present case bear  

similarity to the CVC case.  

23. In  the  writ  petition  and  in  course  of  hearing  of  the  case  

respondent  No.3  has  been  repeatedly  called,  a  little  loosely  and  

rather uncharitably, an “absconder” and a “proclaimed offender” in a  

case of robbery and burning down of a bus. It is seen above that the  

criminal case in question had no element of robbery or bus burning.  

We may now examine how far it is correct to call respondent No.3 as  

an “absconder” and a “proclaimed offender”.

24. It is noted above that the charge sheet was filed in the court of  

the Munsif Magistrate, Mangalagiri on October 19, 1983.  On October  

25,  the  Magistrate  directed  for  issuance  of  summonses,  fixing  

November 25, 1983 as the date for hearing. The summonses, issued  

in pursuance of the order, are on file marked as paper nos. 25 to 30,  

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but  they  bear  no  endorsement  about  service.   At  the  reverse  of  

summonses  to  accused  3  and  4,  it  is  mentioned  that  they  were  

studying in B.L., First Year, Nagarjuna University.  On November 25,  

1983,  the  accused were  not  present  in  court.  Their  absence was  

recorded in the order-sheet and fresh summonses were directed to  

be issued, fixing December 23, 1983 as the date of hearing. Whether  

or  not  summonses  were  issued  in  pursuance  of  the  order  is  not  

known  because  those  summonses  are  not  on  the  record.  On  

December  23,  1983,  the  accused  were  again  not  present  and  

summonses  were  again  directed  to  be  issued,  fixing  January  25,  

1984 for  hearing.   On January  25,  1984,  the accused were once  

again not present and fresh summonses were issued fixing February  

15,  1984 for  hearing.   The summonses are on the file marked as  

paper Nos. 31 to 36. The case was then listed on a number of dates  

but  the  accused  did  not  appear.  Finally  on  November  27,  1985,  

accused 1 appeared in court but accused 2 to 5 were still not present.  

On  January  9,  1987,  the  court  ordered  to  separate  the  case  of  

accused 2 to 5 and proceeded with the trial of accused 1. On June 2,  

1987, statement of accused 1 was recorded under Section 251 of the  

Code of Criminal Procedure.  On March 1, 1988, the statements of  

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PW1 and PW2, namely, S. Satyanarayanaraju and P. Peda Sivaiah  

(being  the  driver  and  conductor  of  the  bus  in  question)  were  

recorded.  It  is  significant  to  note  that  neither  the  driver  nor  the  

conductor  of  the  bus  (PW1  and  PW2  respectively),  named  or  

identified the accused who had attacked the bus. The driver said that  

around  50  or  60  students  had  charged  at  them in  a  group.  The  

conductor said that when the driver stopped the bus, the students  

came shouting and blocked the bus. He became afraid and ran away  

with  the  cash  bag.  The  prosecution  did  not  examine  any  more  

witnesses and on May 12,  1988,  accused 1 was examined under  

Section 313 of the Code of Criminal Procedure. Finally by judgment  

and order  dated July 4,  1988,  the trial  court  found accused 1 not  

guilty of the offences alleged against him and acquitted him of the  

charges.  While  acquitting  him,  the  trial  judge  noted  that  the  

prosecution witnesses were not able to identify the accused. It was  

also noted that as per the FIR the incident occurred at night and the  

bus was attacked by more than 50 persons and there was no material  

with regard to the identity of the culprits who attacked the bus and  

caused damage.  It  was  noted  that  the  FIR does  not  mention  the  

names of  the persons who participated in the offence. It  was also  

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noted  that  in  his  deposition  before  the  trial  court  PW2  (the  bus  

conductor)  denied  having  identified  the  accused  in  his  statement  

under Section 161 of the Code of Criminal Procedure.  

25. Let  us now see the case relating to the other  four  accused,  

including accused 4, that is respondent No.3.  

26. It is noted above that on November 27, 1985 accused 1 alone  

appeared before the court. On March 5, 1986 the court ordered for  

issuance of non-bailable warrants against accused 2 to accused 5.  

The  warrants  are  not  on  record and  it  is  not  known whether  any  

warrants were in fact issued in pursuance of the order. On January 9,  

1987 the court ordered to separate the case of accused 2 to accused  

5. After the case was separated, the record pertaining to accused 2 to  

accused  5  was  registered  as  CC  No.  75/87  and  was  later  

renumbered as CC No. 167/91. From the order sheet it appears that  

from May 1987 to August 1991, the court passed orders on about  

twenty four dates directing for issuance of non-bailable warrants of  

arrest against the accused but no compliance is noted against any  

order, excepting the one passed on August 30, 1991. However, no  

warrants,  even  of  that  date,  are  on  the  file.  Mechanical  orders  

continued to be passed in the same fashion till April 2000 and then  

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suddenly on May 8, 2000 the order was passed for issuance of non-

bailable warrants and processes under Sections 82 & 83 of Code of  

Criminal Procedure against the accused, fixing July 18, 2000 as the  

next date in the case. The compliance of the order is noted on May  

11, 2000 on the order sheet. From the record it, however, appears  

that process under Sections 82 & 83 was issued on May 11, 2000  

only  against  accused  3,  P.R.  Muruthy  son  of  P.B.  Subbarao.  

Thereafter, the case was listed on several dates, awaiting execution  

of warrants and proclamation. On June 20, 2001 the court took steps  

for recording evidence in absence of the accused under Section 299  

of the Code of Criminal Procedure and then, after the case was listed  

on three different dates, on November 5, 2011, the examination-in-

chief of the bus driver (PW1) was recorded under Section 299 of the  

Code of Criminal Procedure. On the same date, the examination-in-

chief of the bus conductor (PW2) was recorded. In their depositions  

neither PW1 nor PW2 (the bus driver and the bus conductor) named  

anyone as accused and both of them said that they did not know the  

leaders of the group of students that had attacked the bus. Again on  

the  same  day,  that  is  November  5,  2011,  the  Assistant  Public  

Prosecutor made an application to the effect that the other witnesses  

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mentioned in the charge-sheet were passengers in the bus and their  

whereabouts  are  not  known  in  view  of  the  passage  of  time.  

Accordingly, it was prayed that the evidence of the prosecution may  

be closed.

27. Thereafter, the Magistrate submitted the record to the Sessions  

Judge, Guntur with the request to issue proceedings to treat the case  

as long pending case. The Sessions Judge on December 26, 2011  

gave permission to the trial judge to declare the case being CC No.  

167/1991 as a long pending case.

28. However, soon thereafter on January 31, 2002, the Assistant  

Public  Prosecutor  moved an application under  Section 321  of  the  

Code of Criminal Procedure, seeking permission to withdraw the case  

in the interest of justice. A reference was made in the application to  

GO Rt No. 1961, dated December 11, 2001 whereby the Government  

had  decided  to  withdraw  the  prosecution  against  the  accused  

persons. On a consideration of the materials on record, by an order  

dated January  31,  2002,  the trial  judge granted permission to  the  

prosecution to withdraw the case and, accordingly, all  the accused  

were discharged.

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29. A  perusal  of  the  court  record  shows  that  during  the  entire  

period,  service  of  summonses  in  the  ordinary  course  were  not  

effected on the four accused persons. Although a proclamation under  

Section 82 and 83 of the Code of Criminal Procedure was ordered to  

be issued, the record does not show any publication having been  

made. However, the record does show that service was sought to be  

effected by beat of drum only on accused 3. There is nothing on the  

record to show that any attempt, let alone any serious attempt, was  

made to serve the summons or the non-bailable warrants on any of  

the accused persons.  

30. The purpose  in  adverting  to  the  proceedings  of  the  criminal  

case in detail is not to point out the irregularities in the proceeding.  

Anyone even with a passing acquaintance with the Code of Criminal  

Procedure can see that gross irregularities were committed practically  

at every step in the proceeding. We have referred to the proceedings  

to  judge  whether  respondent  No.  3  could  be  said  to  have  any  

knowledge of the case in which he was cited as accused 4. From the  

record of the case which we have discussed in detail above, we find it  

very difficult to hold that respondent No. 3 was even aware that in  

some record buried in the courts at Mangalagiri he was named as an  

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accused and he was required to appear in the court in connection  

with that case.  

31. Apart  from  the  record  of  the  case,  there  are  external  

circumstances  that  strengthen  this  view.  From  the  resume  of  

respondent No. 3, as noted at the beginning of the judgment, it may  

be seen that before his appointment as a judge of the High Court, he  

was the Additional Advocate General of Andhra Pradesh. If the case  

would  have  been within  his  knowledge  it  is  unimaginable  that  he  

would not have attended to it and got it concluded one way or the  

other.    

32. Here it  may also be noted that  before filing this  writ  petition  

before  this  Court  the  petitioners  had  made a representation,  both  

before the Chief Justice of India and the Law Minister, asking for the  

removal of respondent No. 3 as a judge of the Andhra Pradesh High  

Court on the same allegations. The representation that came to the  

office of the Chief Justice of India received full consideration and the  

Chief Justice of India called for a report on the matter from the Chief  

Justice  of  the  Andhra  Pradesh  High  Court  vide his  letter  dated  

January  18,  2012.  The Chief  Justice,  Andhra Pradesh High Court  

made a detailed enquiry and submitted his report dated February 7,  

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2012.  In  his  report  the Chief  Justice,  Andhra Pradesh High Court  

came  to  the  same  conclusion  as  we  have  arrived  at  on  an  

independent appraisal of the record of the case. In paragraphs 29  

and 32 of the report, the Chief Justice stated as under:

“29. It does appear that Justice XXX was unaware of the  pendency of the criminal case. I say this from the record  of the case, which speaks for itself, and the contents of  which need not be repeated. I also say this for another  reason.

32. In my opinion Justice XXX was truly unaware of the  criminal case against him and he deserves to be believed  when he says so.”

33. In light of the discussion made above, we have no hesitation in  

holding that at the time respondent No.3 was being considered for  

appointment as a judge of the High Court, he was unaware of any  

case being pending in which he was named as an accused and it is  

quite  wrong  to  refer  to  him  as  “an  absconder  and  a  proclaimed  

offender” in the case. This finding leads to another and that is, it is not  

a case of suppression of any material fact by respondent No.3 or at  

his behest. Here we wish to make it clear that had it been a case of  

deliberate and conscious suppression of material fact by respondent  

No.3 the position would have been entirely different. But that is not  

the case here.

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34. Now we propose to examine whether  apart  from respondent  

No. 3, anyone else, who could be in the position to bring the fact to  

the knowledge of the High Court Collegium or the State Government  

or  the Supreme Court  Collegium or  the Central  Government,  was  

aware of the pendency of the case.

35. Mr.  Shanti  Bhushan  submitted  that  the  State  Police  had  

submitted the charge-sheet against respondent No. 3 and hence, the  

State  Government  must  be deemed to  be aware of  the fact.  The  

submission  plainly  overlooks  that  the  State  Government  is  not  a  

monolith  and  it  does  not  function  as  a  single  person.  The  State  

Government functions in different departments manned by different  

people  and simply  because a  charge-sheet  was submitted by  the  

State Police no conscious knowledge of the fact can be attributed to  

the State Government.

36. We  have  carefully  gone  through  the  record  relating  to  the  

appointment of respondent No. 3 as a judge of the Andhra Pradesh  

High Court. From the record it is evident that none of the members of  

the High Court or the Supreme Court Collegia was aware of the fact.  

The State Government was equally unaware of the fact and so was  

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the Central Government as is evident from the resume prepared by  

the Law Ministry as also the IB Report.

37. This is not all. In 1993, respondent No. 3 was a candidate for  

the post of the Member of the Income Tax Appellate Tribunal and in  

that connection he was interviewed by a Selection Committee headed  

by  a  sitting  judge  of  the  Supreme  Court.  He  was  selected  for  

appointment and was issued an appointment letter dated September  

8, 1995 as judicial member in the ITAT. The appointment letter was  

undoubtedly issued to him only after police verification and nothing  

was mentioned even at that stage about any criminal case pending  

against  him.  He did not  accept  the appointment  is  another  matter  

altogether.

38. From all the attending circumstances, it is clear beyond doubt  

that  not  only respondent No. 3 himself  but  practically  no one was  

aware of the pendency of the case in which he was named as an  

accused.

39. The question, therefore, arises can a fact that is unknown to  

anyone  be  said  to  be  not  taken  into  consideration  and  can  the  

consultative process faulted as incomplete for  that  reason.  To our  

mind,  the  answer  can  only  be  in  the  negative.  To  fault  the  

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consultative process for not taking into account a fact that was not  

known  at  that  time  would  put  an  impossible  burden  on  the  

Constitutional  Authorities  engaged in  the consultative  process and  

would  introduce  a  dangerous  element  of  uncertainty  in  the  

appointments.

40. In case it comes to light that some material facts were withheld  

by the person under consideration or suppressed at his behest then  

that may be a case of fraud that would vitiate the consultative process  

and consequently the appointment resulting from it. But in case there  

was no suppression and the fact comes to light a long time after the  

person  appointed  has  assumed  the  office  of  a  judge  and  if  the  

Members  of  the  two  Houses  of  the  Parliament  consider  the  

discovered fact sufficiently serious to constitute misbehaviour and to  

warrant  his  removal,  then he may still  be  removed from office  by  

taking recourse to the provisions of Article 124(4) or Article 217 read  

with Article 124(4) as the case may be. In case, however, the fact  

was unknown and there was no suppression of that fact, a writ of quo  

warranto would  certainly  not  lie  on  the  plea  that  the  consultative  

process was faulty.

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41. In light of the discussion made above, we are clearly of the view  

that no case is made out for issuing a writ of quo warranto quashing  

the appointment of respondent No. 3 as the judge of Andhra Pradesh  

High Court.

42. The legal issue raised by Mr. Shanti Bhushan is answered but  

this matter cannot be given a proper closure unless we also say that  

this writ petition professed to have been filed in public interest is, in  

our view, but a ruse to malign respondent No.3.

43. In  his  report  to  the  Chief  Justice  of  India  the  Chief  Justice,  

Andhra Pradesh High Court has made the following comment:

“27. The incident occurred almost 30 years ago. The case  against Justice Ramana was withdrawn almost 10 years  ago. That it should be raked up now is a little inexplicable.  The case does not seem to have been sensational in any  manner whatsoever so that someone would be following it  up. Therefore, it is a little odd that it should have suddenly  surfaced  now.  It  is  possible  that  there  is  some reason  behind digging up this case, but I am unable to fathom the  motive.”  

44. What  the  Chief  Justice  said,  in  a  highly  restrained  manner,  

about  the  representation  addressed  to  the  Chief  Justice  of  India,  

applies more to this writ petition. The writ petition owes its origin to a  

news report published in a Telugu daily newspaper called ‘Sakshi’ on  

December 27, 2011. A translated copy of the report is enclosed as  

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Annexure P-11 to the writ petition. The report is based on incorrect  

facts  and  is  full  of  statements  and  innuendos  that  might  easily  

constitute the offence of defamation leave alone contempt of court.  

After the news broke out, the petitioners seem to have collected the  

record of the criminal case and filed this writ petition on that basis.  

The writ petition is drafted with some skill and it presents the facts of  

the criminal  case in  a rather  twisted way in  an attempt  to portray  

respondent  No.3  in  bad  light.  The  way the  writ  petition  is  drafted  

shows that the petitioners are competent and experienced counsel.  

Had they examined the records of the criminal case objectively and  

honestly,  there was no reason for  them not  to  come to the same  

conclusion as arrived at in this judgment or as appearing from the  

report of the Chief Justice, Andhra Pradesh High Court. It, therefore,  

appears  to  us  that  this  writ  petition  is  not  a  sincere  and  honest  

endeavour to correct something which the petitioners truly perceive to  

be wrong but the real intent of this petition is to malign respondent  

No.3.

45. It is indeed very important to uphold the “institutional integrity”  

of  the  court  system as  pointed  out  in  the  CVC judgment  and  as  

strongly advocated by Mr. Shanti Bhushan, but it is equally important  

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to protect the court from uncalled for attacks and the individual judges  

from unjust infliction of injuries.  

46. In light of the discussions made above, we find this writ petition  

not  only  without  merit  but  also  wanting  in  bona  fides.  It  is,  

accordingly, dismissed with costs of Rs.50,000/- payable by each of  

the two petitioners. The cost amount must be deposited in a fund for  

the  welfare  of  the  employees  of  the  Andhra  Pradesh  High  Court  

within four weeks from today.

…..…………………………J. (Aftab Alam)

…..…………………………J. (Ranjana Prakash Desai)

New Delhi; February 4, 2013.  

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