LAW RESOURCE INDIA

Getting its own off the hook

Posted in ACCOUNTABILITY, JUDICIARY by NNLRJ INDIA on October 14, 2013
CHANDER SUTA DOGRA PUBLISHED IN THE HINDU

A Punjab and Haryana High Court decision to halt the framing of charges in the graft case against its former judge Justice Nirmal Yadav raises disturbing questions about judicial accountability

When Anupam Gupta, special public prosecutor for the CBI in the “cash at the doorstep” corruption case against former judge of the Punjab and Haryana High Court Nirmal Yadav, burst out in anger against the High Court’s recent decision to halt the framing of charges against her, it cast a shadow of disquiet on possibly the most watched prosecution of a judge in the higher judiciary in recent times.

In a written statement he said, “I am deeply distressed by the High Court’s order passed today. It betrays an insensitivity to judicial corruption that cannot be viewed with equanimity. The High Court cannot have a dual approach or standard — one for judges and another for all other accused. Would the High Court have passed this order if the principal accused had not been a former High Court Judge?”

His statement, duly reported by newspapers, was greeted by pin drop silence in the legal universe. That Mr. Gupta is a well known activist on judicial accountability is one reason why his outburst was not immediately dismissed as a mere reaction to a legal setback in court. The other is, because each time in the last couple of years it appeared that the case against Justice Yadav would be dropped, the lawyers of the Punjab and Haryana High Court rose as one to ensure its continuation.

Revision petition

Justice Nirmal Yadav is being tried for allegedly receiving illegal gratification of Rs.15 lakh in August 2008. The money was wrongly delivered at the residence of another lady judge of the High Court, who reported the matter to the Chandigarh police. In March 2011, the President granted sanction to prosecute her under Section 19 of the Prevention of Corruption Act and she became the first serving high court judge in the country to be charge sheeted in a corruption case.

In July this year the CBI court in Chandigarh finally ordered charges to be framed against her, but Justice Yadav filed a revision petition before the High Court against the order, saying that it was “illegal, erroneous and untenable in the eyes of the law.” Hearing the petition, Justice N.K. Sanghi summoned the entire record of the CBI court and directed that her petition be heard within three months. This in effect means that until the High Court decides on her petition, the trial will remain frozen before the trial court.

Speaking to The Hindu, Mr. Gupta says: “Justice Sanghi failed to observe the elementary precaution and propriety of issuing notice to the CBI and hearing it before passing the September 13 order. By requisitioning the trial court’s record, the Judge has, for all practical intents and purposes, disabled the Special Judge, CBI, from proceeding any further with Justice Nirmal Yadav’s trial for a virtually indefinite period of time. Given the practice in the High Court and the volume of litigation before it, the prospect of Justice Yadav’s petition being finally decided by the High Court within three months is far too remote to be believed. A cynic would not be wrong in assuming that, despite its gravity, the case has been put in the cold storage.”

Strong words these and his statement was eagerly circulated in the approving bar.

When asked by The Hindu for his response to Mr. Gupta’s allegations, Justice Sanghi declined comment but did say that if at all he does respond, it will be through his orders.

The ruckus now is because in July the CBI judge Vimal Kumar had given a 61-page order in which he rejected the defence taken by Justice Yadav and the co-accused, ruling that “there was overwhelming evidence” against all of them. He had pointed out contradictions between the statements of Justice Yadav and the other accused. While she had denied all the happenings of August 2008 and claimed that she is being framed, the others accused in the case have admitted the same to some extent.

Cash for verdicts

Earlier during investigations, the CBI had uncovered shocking details of several much bigger cash transactions allegedly received by Ms Yadav in exchange for giving favourable verdicts. In one she even quashed an FIR under Sec 482 of CrPC in a murder case in 2006, for which she allegedly received Rs.50 lakh. These details — that emerged from custodial interrogation of a co-accused, who had arranged for the Rs.15 lakh to be delivered to Justice Yadav’s residence — are in the report of the Superintendent of Police and was brought to the notice of the court. The contents of the SP’s report, kept under wraps till a couple of months ago, (reported in The Hindu on August 4) were also forwarded to Justice S.H. Kapadia, the then Chief Justice of India (CJI) who had in July 2010 given sanction to prosecute the judge. These findings however were not included in the charge sheet.

Closure report

But stranger things have happened in this case. In December 2009, the CBI taking a plea that it has not received sanction from the CJI to prosecute the judge, filed a closure report. The plea was based on a letter from the Law ministry stating that the then CJI, Justice Balakrishnan, had observed “that no action was required for the present” in the matter. The High Court Bar Association slammed the action of the CJI and intervened in the case to oppose the closure.

Justice Balakrishnan clarified through a statement issued by his office that he had not received any request to prosecute the judge and that the CBI had not even shown him its final report in this regard. In March 2010 the trial court rejected the closure report and ordered further investigation. In the eventuality, the proposal to sanction the prosecution of Justice Yadav was moved before the CJI three months later following which the President who is the competent authority to grant sanction to prosecute the judge, did so in March 2011.

Justice Yadav has retired but is believed to wield considerable influence through her brother, a cabinet minister in Haryana. Mr. Gupta on the other hand has announced that he is collecting material and will be writing to the CJI soon. With the trial stalled amid these serious allegations that raise questions about the impartiality of the judiciary towards one of its own, there is nothing to indicate as of now, if the air will be cleared anytime soon.

chander.dogra@thehindu.co.in

Nirmal

Leave a Reply

Fill in your details below or click an icon to log in:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out / Change )

Twitter picture

You are commenting using your Twitter account. Log Out / Change )

Facebook photo

You are commenting using your Facebook account. Log Out / Change )

Google+ photo

You are commenting using your Google+ account. Log Out / Change )

Connecting to %s

%d bloggers like this: