The Supreme Court on Thursday issued notice to the Centre, the Chief Secretary of Uttar Pradesh, and its Principal Secretary (Home) asking them to respond by August 01 to continue with the running investigation by the UP police under supervision of the Allahabad High Court, or constitute a special investigation team or to refer the CBI.
The three-member Bench comprising Chief Justice K G Balakrishnan, Justices P Sathasivam and J M Panchal said while hearing a petition seeking CBI probe into what is called the “Ghaziabad judges' provident fund scam.”
Counsel Shanti Bhushan, appearing for an NGO-Transparency International, when took exception to the CJI's decision of instructing Ghaziabad police to submit written questions that had to be asked to each of the judges whose name have been tossed in the case.
Senior counsel Shanthi Bhushan, appearing for Transparency International, took exception to the Supreme Court Secretary-General writing to the Ghaziabad police to submit written questions which were proposed to be asked to each of these judges. The CJI responded if you are not agree with my decision, you can challenge it. But, for this you have to amend your prayer and I will not be part of the Bench hearing the matter in the case.
Justice Balakrishnan said, “The SSP sought my permission and I have taken the decision. If you want to defy it you can do so. Other Bench will hear the petition. Neither the Secretary-General nor I have any control over the Ghaziabad court staff or the judicial officers. Only the Allahabad High Court Chief Justice has control over them. I don't want any advice from you on administrative matters.”
Solicitor General G E Vahanvati, whose advice was sought by the Court in the matter, also came with somewhat the same opinion: before transferring the ongoing probe from UP police to another agency, the SC should consider whether any need is required to entrust the case to CBI or SIT. He further said: “If the matter is brought straight to the SC, it will send a wrong signal that the HC was not competent to deal with the issue.”
Keeping Vahanvati's suggestion and the Bench's judgment, the Chief Justice sought response on the matter from Centre and Uttar Pradesh. He also denied a suggestion for ordering an investigation by a senior retired police officer or directing a probe under the supervision of any such officer.
Advocates from Ghaziabad court wanted the case to be probed by a special investigating team headed by a retired police officer.
Justice Balakrishnan said: "It is a criminal case to be investigated under Criminal Procedure Code and it should be investigated by the police. The case has been registered and cognizance has been taken. This is a criminal case with serious ramifications." After registering the FIR, only police officers have power to investigate the case and not the retired officials. It is not a fact finding committee to comprise retired officials, the Bench said.
“Inquiry, yes, but it has to be conducted under the Criminal Procedure Code. Let us get the response of the Union government and the UP government as to what should be the proper mode of investigation. If they suggest CBI, we will consider it. But there is no point in issuing notice to CBI and seeking its view in advance about the mode of probe,” the CJI said.
A week ago, the Supreme Court had decided to hear the PF corruption case in an open court. Earlier the matter was taken in a close chamber of CJI to keep it away from the media glare. But, the court decided there can not be separate judicial process for the judges and other persons. “No one, is high in the eyes of judiciary, be spared and there be no cover up.”
The case is related to Uttar Pradesh's 23 crore “Provident Fund scam” allegedly involving 26 judges, comprising one from apex court, seven High Court and six retired HC judges, ten serving district judges and two retired district judges. The next hearing of the case is on August 01.
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Read More: Allahabad
Comments:
Nutan Thakur
August 8, 2008 at 12:00 AM
No Surrender
?Even God will not be able to save this country?, thunders the Supreme Court on 4th August 2008 while hearing a matter related to amending the law for launching criminal prosecution against those who illegally occupy official houses. It doesn?t stop here and goes on to add- "In India even if God comes down he cannot change our country". The Apex Court provides a perfect rational for such an extremely disgusting and stinking condition that our country has come to acquire-" Our country's character has gone." Finally, the Court, in a genuine state of loathing repulsion utters these words of finality- "We are helpless."
The Bench comprises of Justices B N Agrawal and G S Singhvi. Justice Agrawal is the second senior most judge in the Hon'ble Supreme Court, next only to the CJI K G Balakrishnan.
Who in India is not going to agree with these words of the two Judges, except those who are a part of the system and the establishment and are generally perceived as the filthy rats eating into it, profusely and with profanity?
Three days later, the Supreme Court is again in news, but for an entirely different reason. The Judge in the center of the affairs this time again is Justice B N Agrawal. But, this time the tenor of his voice and the general references are entirely different. The Judge is now saying ? ?I am not such a sanyasi that I will be able to keep my cool when abused in this manner.? But the face of his brunt is not towards the government or one of its agencies, that is usually the case with the Judicial bodies, right from the Supreme Court to what are called ?The subordinate Judiciary?. This time it is the Bar, the collective total of the lawyers, that he is finding a curse. To use his words- "The way the Bar is behaving, I do not appreciate". The irritation and antipathy in his voice is deep and clear when he says- "Today, you do not have any respect for any judge of the Supreme Court,?? The reason for the second Senior most Judge getting annoyed and
infuriated is what he thinks is a completely unjustified act on the part of Shanti Bhushan, one of the most Senior Advocates in the country, who it seems has- ?said that SC judges are giving protection to corrupt judges.?
The matter relates to the alleged involvement of a large number of serving and retired Judges in the Rs 23 crore PF scam in Ghaziabad judiciary and the question in issue is whether to transfer the case from U P Police to the CBI, because of the sensitivity of the case and because of the limitation of State police organizations in handling such cases.
Thus we see the same Judge iterating different view points and reacting in completely different ways within a span of a week. Why such a change in the behaviour of the dramatis- persona? That too when only a day earlier, i.e., on 6th of August, the same bench comprising of Justices B N Agrawal, V S Sirpurkar and G S Singhvi says so loudly and clearly- "Don't think that we want to give protection to members of judiciary or even those in higher judicial services." They also warn/ request all and sundry- "Do not give the impression to people of India". And yet they have added a small catch after this- "We only want to protect the independence of judiciary."
The facts of the matter are rather simple and yet quite startling. A clerk in the government treasury in Ghaziabad has been accused of siphoning off around Rs 23 crores from Provident Funds. So far, the matter was a routine affair, so many of the government servants getting caught for misappropriation and breach of trust of the authority imposed on them. The real twister came when the clerk came up with the bombshell that he had allegedly distributing it to many Judges. So far the clerk has specifically named 26 judges, including a SC judge and some sitting and retired high court judges. The case is registered in Ghaziabad and investigation by the local police is going on. But understanding the limitation of the State police, the present writ was placed in the Supreme Court to transfer the case to CBI for speedier, better and more accepted justice.
While the case could have been easily decided, favourably on the side of the CBI taking over the investigation before anyone could have even known of it, the way the case is turning and swirling, it might soon come to acquire the shape of a classic tale of bad handling, or what they call- Making a mole out of the mountain. The judges are putting forth the logic of protecting the independence of judiciary. Do they feel CBI is such an organization that would come in the way of justice or would adversely affect the independence of judiciary, particularly when the same CBI has acted as its blue-eyed boy in so many sensitive and important cases where the Supreme Court and also the High courts have ordered it to take the reins of investigation so that Justice may prevail? Why this duplicitous behaviour when the matter pertains a few member of the Judicial fraternity? When the CBI can handle the rest of the cases so effectively, impartially or speedily so as to be entrusted cases from all over the country, why not a case so near to Delhi, where the CBI has its Head-quarters. Does it not raise suspicion regarding the Court trying to hide something or attempting to protect some of the Colleagues in the Judiciary? Is such a behaviour there because the name of one Supreme Court Judge is coming? All these questions are and will further be raised as long as the Apex Court tries to shy away from these questions. If Shanti Bhushan and Prashant Bhushan ask these questions in the open court, what wrong are they committing? Has any one been able to stop a huge avalanche or a massive brook or a mighty roar? The Judiciary will have to take a rethinking in this direction. It will have to realize that we live in the 21st Century where so much of the archaic world has changed and they too need to change some of their primitive concepts to come to tunes of the present world. Till how long can it threaten people with it's so called Contempt Of Court Powers? Such Contempt laws are for inefficient bureaucrats, obnoxious politicians and other government staff who have their service to save. But what about the law-abiding, knowledgeable persons having a free will and a wish to do something for the people of this nation? They are not going to get frightened. Shanti Bhushan did not start shivering, nor did his son. Arundhati Roy and Medha Patekar have already challenged the Highest Court to proceed against them, without any end result. As Alfred Alder wrote in the problems of Neurosis- " The truth is often a terrible weapon of aggression".
The Judges are fond of putting forth the quote regarding Justice being done and seen When The Honb'le J J Spigelman, CJ of New South Wales, Australia rises on the occasion of the 31st Australian legal convention at Canberra on 9 October 1999 to deliver his keynote address, the first sentence he begins with is- All lawyers will recognise the oft cited aphorism of Lord Hewart from Rex v Sussex Justices; Ex parte McCarthy:?? it is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done.? The follows it up with the following legal pithy of Lord Bowen: "Judges, like Caesar?s wife, should be above suspicion". Coming more recently to our own country, Mrs Pratibha Patil, the President of India, while delivering her speech at the International conference of jurists on the rule of law in New Delhi on 24th November 2007 says so emphatically- "The basic postulate of the rule of law that "justice should not only be done but it must also be seen to be done", is a constant reminder of the high standards that must be maintained in delivering justice." This is the position universally taken. So, why is the Supreme Court trying to deny this to the petitioners of this case and through them to the general masses?
The Holy Roman Emperor, Ferdinand I was famous for his motto that said- Fiat justitia et pereat mundus ("Let justice be done, though the world perish). Can we expect something of the same from the Supreme Court of India, the highest seat of Justice in this country of more than one billion? Let all the 26 Judges accused of misappropriation perish if they are at fault but let Justice not die a premature death.
It also reminds me of the infamous Dreyfus affair where Captain Alfred Dreyfus, a young French artillery officer of Jewish background was convicted for treason in November 1894 and despite the real culprit being brought to light and identified two years later, in 1896, the French high-level military officials dismissed or ignored this new evidence. It was then left to the writer ?mile Zola to come up with a famously incendiary open letter to the then President of France billed "J'accuse!" (I accuse!.) His sole intent was to force his own prosecution for libel so that the emerging facts of the Dreyfus case could be thoroughly aired. In this he succeeded. He was convicted, appealed and was retried. Will the Bhushans have to adopt the same methods and will pass through the same phase? It will be good neither for the Judiciary nor for this country.
First the CJI KG Balakrishnan deciding that he would not head the bench hearing the petition against sitting judges in connection with the Provident Fund scam in the state of UP and now the outbursts and quitting of the second most Senior Judge. Where will this end? And what for is all this hue and cry? The Supreme Court must decide the question which is the best investigative agency in the country and if it thinks it is CBI, it shall immediately hand over the case to CBI so as to end all the nefarious clouds being generated because of this entirely futile drama.
Or is it going to be the way Lewis Carroll wrote in his classic " Through the looking Glass"- " No admittance till the week after next".
Dr. Nutan Thakur,
Editor,
Nutan Satta Pravah,
Lucknow
# 94155-34525