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Updated: October 14, 2013 02:09 IST

Getting its own off the hook

Chander Suta Dogra
Comment (6)   ·   print   ·   T  T  
Illustration: Satwik Gade

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

More In: Comment | Opinion

Apex Court in D.K. Basu case while commenting on the conduct of the police while dealing with complaints against another police official observed " that the ties of brotherhood runs deep within the police department". However it seems that ties of brotherhood runs even deeper in Judiciary. Is anyone in the Hon'ble Supreme Court listening to its conscience ( if it exists)?
It seems that now no prosecution against a judge should take place within the territorial jurisdiction of his/her seat.

from:  Ishan jain
Posted on: Oct 14, 2013 at 23:27 IST

When the West Bengal Chief Minister Mamata said that judicial

decisions can be purchased in India some people criticised her

vehemently. She said this after a trial judge in Andhra Pradesh

was arrested for his involvement in bail for cash deal. I am

myself a victim of judicial corruption but helpless to do

anything. The difference between judicial corrruption and

corruption in other wings of government is that the former enjoy

protection from the outdated contempt laws and they make it very

difficult for people to penetrate that protective armour and

expose judicial corruption. It is high time that these laws are

suitably amended to bring the judiciary also on a par with the

rest of the citizens before Law. Otherwise the fundamental right

of 'equality before law,' guaranteed by our constitution is

infructuous and redundant.

from:  Ananda Murti
Posted on: Oct 14, 2013 at 18:48 IST

The article is bold and shows the fearlessness and the courage of The
Hindu. I hope the Hon'ble CJI takes judicial notice and the pending
case is decided on a fast track like the Nirbhaya case. Whatever the
ultimate court decision in the case, the faith of the aam aadmi in the
judiciary will be strengthened if the case is fast-tracked.

Other allegations of receiving cash for delivering judicial verdicts
uncovered during the course of the CBI investigation in this case too
need to be investigated and decided fairly and transparently. The
Judge is too amenable to the rule of law like any other citizen.

from:  Ashok Khemka
Posted on: Oct 14, 2013 at 12:58 IST

This is a high-profile case and has therefore drawn attention. It is
quite a common practice for single-member bench of the High Court in
Karnataka to quash an FIR at the investigation stage in corruption
cases. There is some amount of forced restraint in cases monitored by
the Supreme Court as in the various cases associated with illegal mining
and transport of iron ore.Call it corruption or our common culture, you
have your choice.

from:  Hilary Pais
Posted on: Oct 14, 2013 at 09:51 IST

The apparent attempt of the Punjab & Haryana high court to moderate
the charges of graft against Justice Yadav is very risky proposition
which put a direct question mark on the issues of accountability of
the judiciary. As in a democracy no institution or individual is above
the law, any attempt of some members of judicial fraternity to unduly
save its own member would not show it in a proper light,thereby
causing a serious dent in the hard earned reputation of the Indian
judiciary. Hence it is imperative on the part of the honourable
supreme court to take a sou-motto cognizance of the issue so that a
person howsoever taller he/she is,if guilty,should not get away from
the clutches of law and most importantly from that of morality.

from:  rajiv roy
Posted on: Oct 14, 2013 at 09:16 IST

Let us now understand how our constitution functions, where there are laws but no order that is implementation.Even on onslaught of gravest charges of corruption the PM is pretty sitting as a honest man,hankering for a seat in security council by being a courtier of President Obama!

from:  atis
Posted on: Oct 14, 2013 at 07:00 IST
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