The Committee constituted by the Rajya Sabha Chairman to probe the charges of “misappropriation” against Calcutta High Court Judge Justice Soumitra Sen in the removal proceedings has no jurisdiction to conduct the inquiry, Justice Sen's senior counsel Shekhar Naphade said on Monday.
Mr. Naphade claimed “right of silence” as a valid defence. He said there was no obligation under law for Justice Sen to come to the witness box and give evidence when the probe pertained to his conduct as a court Receiver and not for his conduct as a judge.
The committee comprises Supreme Court Judge B. Sudershan Reddy, Punjab and Haryana High Court Chief Justice Mukul Mudgal and noted jurist Fali Nariman.
Submitting the conclusion of arguments by senior counsel Siddharth Luthra for the committee, Mr. Naphade said the panel could not probe into the charges in which the Calcutta High Court had exonerated Justice Sen, holding that there was no misappropriation.
He said this order attained finality and only the Supreme Court could go into its validity.
Justice Reddy wanted to know from counsel whether the committee could give a report to Parliament that the motion [of removal proceedings] was invalid. He asked: “Can we say that this committee is not competent to look into the charges.”
Constitutional bar
Counsel maintained that no authority, including the present committee, could go into the charges made against Justice Sen as a Receiver of the High Court as there was a constitutional bar under Article 215 (High Courts to be courts of record) as only an appeal under that order could be made in the Supreme Court.
Mr. Nariman asked counsel whether it was proper for Justice Sen not to come to the witness box claiming “right of silence” as self defence. He pointed out that having filed a written statement and engaged counsel, was there no obligation on him to cooperate in the proceedings.
Mr. Naphade replied: “He [Justice Sen] has a right to remain silent because it was not a proved misbehaviour. There is no obligation in law to cooperate.”
When Mr. Nariman wanted to know from counsel the meaning of “misbehaviour,” Mr. Naphade said: “Anything which does not conform to universally accepted moral/ethical standards is misbehaviour. But we are concerned here with Justice Sen's conduct as a lawyer and not as a judge.”
Counsel asserted that there was no misappropriation of the funds collected by Justice Sen as court Receiver.
He had invested the amount in fixed deposits in a company for a higher rate of interest but unfortunately the company went into liquidation. But when the High Court directed him to repay the amount, he repaid the amount with interest.
When Mr. Nariman pointed out that he could have pleaded that there was no wilful default and not returned the amount, counsel said, “The fact that I have returned the amount cannot be put against me.”
Arguments will conclude on Tuesday, when the committee is expected to reserve its verdict.
