Taking into consideration the fact that the evidence in the disproportionate assets cases against Tamil Nadu Chief Minister Jayalalithaa and three others runs into 34,000 pages, the Supreme Court on Monday asked the Karnataka High Court to extend the present tenure of the special judge, who is retiring on September 30.
Disposing of petitions filed by Ms. Jayalalithaa and others, a Bench of Justices B.S. Chauhan and S.A. Bobde said “the special Judge examined 99 defence witnesses and 384 defence exhibits were marked before him. The defence concluded its argument before the Special Judge and SPP commenced the final arguments on August 23, 2013. He was interrupted abruptly as on August 26, 2013, the SPP was asked not to continue with the work. The evidence led in the case is very bulky as it runs into 34000 pages. In case a new judge starts hearing the matter, he is bound to take a long time to understand the factual and legal niceties involved in the case.”
The Bench, however, agreed with the submissions of the Attorney General G.E. Vahanvati appearing for Karnataka that this court generally should not pass any order (to direct extending the services of the special judge) in exercise of its extraordinary power under Article 142 of the Constitution to do complete justice if such order violated any statutory provisions. The judges said “We do not intend to say that it would be illegal to extend the term of the special judge, but that it is a matter within the jurisdiction of the State in accordance with the relevant law. There is yet an uncontroverted legal principle that when the statute provides for a particular procedure, the authority has to follow the same and cannot be permitted to act in contravention of the same.”
Writing the judgment, Justice Chauhan said “We have examined the scheme of the statutory provisions in this regard.
The Karnataka Civil Services (General Recruitment) Rules, 1977, authorise the State government to appoint a retired government servant on contractual basis after meeting certain formalities, for a specific period as may be necessary.
So far as judicial officers are concerned, their services are governed by the Karnataka Judicial Services (Recruitment) Rules, 1983 and Rule 3(2) thereof provides the application of the rules framed under any law or proviso under Article 309 of the Constitution to judicial officers, though subject to the provisions of Articles 233, 234 and 235 of the Constitution.”
The Bench said “it is evident that the State government is competent to appoint the special judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court as required under Article 235 of the Constitution. Further, in our humble opinion, such a course must be adopted in the manner prescribed under the Rules 2004 and in view thereof, the matter requires to be considered by the State government with the consultation of the High Court.”
The Bench said “we refer the matter to the Karnataka High Court to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of the learned special judge. Considering the urgency of the matter, we request the High Court of Karnataka to take a decision in this regard as early as possible.”
The Bench said since the order removing Mr. Bhavani Singh was being quashed it was not necessary to pronounce on the correctness or otherwise of the contents of the letter written by the Chief Justice to the State government permitting removal of Mr. Bhavani Singh.
On the contention that the special judge had wrongly permitted the defence to commence their arguments before the arguments of the prosecution, the Bench said “this is entirely permissible in view of the fact that this is a prosecution under Section 13 of the Prevention of Corruption Act and being so, any party including the defence is entitled to begin its submissions on the close of its evidence by virtue of Section 314 Cr.P.C., which applies to warrant cases. Further, by virtue of Section 5 of the PC Act, cases under this Act are liable to be tried as warrant cases and there is therefore, no illegality in this regard.”