Crl.Misc. No. M- 14289 of 2011 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH. DATE OF DECISION: 14 .11.2011 Mrs.Nirmal Yadav ….Petitioner VERSUS Central Bureau of Investigation and another …Respondents CORAM HON'BLE MR.JUSTICE PERMOD KOHLI PRESENT: Mr.K.T.S.Tulsi, Sr.Advocate with Mr.Ravi Sodhi, Mr.J.S.Yadav, Mr.Gaurav Bhargava and Mr.Kuber Bodh, Advocates for the petitioner Mr.Anupam Gupta, Advocate for CBI-respondent no.1 Mr.Anmol Rattan Sidhu, Assistant Solicitor General of India with Mr.Ajay Kaushik and Mr.Brijeshwar Singh, Advocates for UOI- Respondent no.2 Permod Kohli, J. 1. Inherent jurisdiction of this Court under Section 482 Cr.P.C. has been invoked seeking quashment of the sanction order dated 1.3.2011 passed by the President of India for prosecution of the petitioner in R.C.No.AC2/2008-A/004 with a further prayer for quashment of the charge-sheet dated 4.3.2011 presented against the petitioner in the court of Special Judge (CBI Court), Chandigarh as also the order of the Special Judge dated 18.4.2011 taking cognizance of the charge-sheet under Section 173 of the Cr.P.C. Crl.Misc. No. M- 14289 of 2011 2 2. The petitioner is a former Judge of this Court who was later transferred to the High Court of Uttrakhand. An FIR No.250 of 2008 was registered at Police Station, Sector 11, Chandigarh under Sections 11 and 12 of the Prevention of Corruption Act, 1988 (hereinafter referred to as “the Act”), Section 120-B read with Sections 192, 196, 199 and 200 of the Indian Penal Code on the complaint of one Amrik Singh, Peon of Hon’ble Ms. Justice Nirmaljit Kaur against Shri Sanjeev Bansal, an Advocate practising at Chandigarh, Shri Ravinder Singh resident of Delhi, Shri Rajiv Gupta, resident of Panchkula, Shri Nirmal Singh, resident of Panchkula and Justice Mrs. Nirmal Yadav, the then Judge of Punjab and Haryana High Court, petitioner herein. Initially, the case was investigated by the Chandigarh Police, however, the case was transferred to CBI, pursuant to a DO letter dated 26.8.2008 from the then Governor of Punjab and Administrator of UT, Chandigarh. 3. The CBI conducted the investigation in the matter. During the course of investigation, the CBI claims to have collected material and evidence against the accused persons. Since the matter pertains to allegations against a sitting High Court Judge, the then Hon’ble Chief Justice of India, constituted a three members committee comprising of Hon’ble Mr.Justice H.L.Gokhale, the then Chief Justice of Allahabad High Court, presently Judge of Hon’ble Supreme Court, Justice K.S. Radhakrishnan, the then Chief Justice of Gujarat High Court, presently, Judge of Hon’ble Supreme Court and Justice Madan B.Lokur, the then Judge of Delhi High Court, presently Chief Justice Gauhati High Court in terms of In-House procedure adopted by Hon’ble Supreme Court on 7.5.1997. The Crl.Misc. No. M- 14289 of 2011 3 order dated 25.8.2008 constituting the Committee also contains the terms of reference of the Committee. The Committee was asked to enquire into the allegations against Justice Mrs. Nirmal Yadav, Judge of Punjab and Haryana High Court revealed, during the course of investigation in the case registered vide FIR No.250 of 2008 dated 16.8.2008 at Police Station, Sector 11, Chandigarh and later transferred to CBI. The Committee during the course of its enquiry examined the witnesses and recorded the statements of as many as 19 witnesses, including Mrs.Justice Nirmal Yadav (petitioner), Ms. Justice Nirmaljit Kaur, Sanjiv Bansal, the other accused named in the FIR and various other witnesses. The Committee also examined various documents, including data of phone calls exchanged between Mrs. Justice Nirmal yadav and Mr.Ravinder Singh and his wife Mohinder Kaur, Mr.Sanjiv Bansal and Mr.Ravinder Singh, Mr.Rajiv Gupta and Mr. Sanjiv Bansal. On the basis of evidence and material before it, the Committee of Hon’ble Judges has drawn an inference that the money delivered at the residence of Hon’ble Ms.Justice Nirmaljit Kaur was in fact meant for Ms.Justice Nirmal Yadav. 4. Report of Committee of Judges was served upon the petitioner for her response by Hon’ble Chief Justice of India. The petitioner submitted her response vide letters dated 27/30 January, 2009 and June, 2009. The petitioner has also placed on record two more enquiry reports one conducted by the Government of Himachal Pradesh in respect of purchase of land by petitioner, alongwith Ravinder Singh, accused and various other persons at Solen. In this enquiry, it was concluded that no procedural irregularity was Crl.Misc. No. M- 14289 of 2011 4 committed at any level for according permission by the Government of Himachal Pradesh for purchase of land by Mrs. Justice Nirmal Yadav and others nor there was any evasion of the stamp duty and registration fee. It was also found that the land purchased was also within the limits prescribed under the rules. The second report dated 11.11.2008 is by Income Tax Department in respect of valuation of the land purchased by Mrs.Justice Nirmal Yadav and others and again no irregularity or under valuation was found. 5. The CBI on completion of the investigation filed a closure report no.4/2009 dated 17.12.2009 before the learned Special Judge (CBI Court), Chandigarh. It may be relevant to note that the CBI concluded that the offence punishable under Section 12 of the PC Act is established against Ravinder Singh, Sanjiv Bansal and Rajiv Gupta whereas offence under Section 11 of the PC Act is established against Mrs.Justice Nirmal Yadav whereas offence punishable under Section 120-B of the IPC read with Sections 193, 192, 196, 199 and 200 IPC is also established against Shri Sanjiv Bansal, Rajiv Gupta and Mrs.Justice Nirmal yadav. The only reason for filing the closure report by the CBI was declining of sanction for prosecution. The relevant averments made in the closure report in this regard are reproduced here under:- “(xxiii)That as Mrs. Justice Nirmal Yadav was a sitting Judge of the Hon'ble High Court of Punjab and Haryana Chandigarh, request was made to the Secretary (Personnel), Ministry of Personnel, Public Grievances and Pensions, Govt. of India, New Delhi for obtaining prosecution sanction from the President of India in consultation with the Hon'ble Chief Justice of India. Vide letter D.O.No.2286/LS Office/09 dated 7.12.2009 of Shri D.R.Meena, Secretary Ministry of Law and Justice, Department of Legal Affairs, New Delhi addressed to Director, CBI, the sanction for prosecution has been declined on the grounds that after analysis of the available evidence, the Ld. Attorney General of India has observed that. “there is not a shred of evidence with the said alleged offences were committed by Sanjiv Bansal, Ravinder Singh and Nirmal Singh in conspiracy with Justice Yadav” and that “the matter had been discussed with the CJI, who had observed that no action was required for Crl.Misc. No. M- 14289 of 2011 5 the present. (xxiv)That, this closure report is, therefore, submitted before this Hon'ble Court for reasons of denial of prosecution sanction by the competent authority. It is, therefore, prayed that the Hon'ble Court may be pleased to order for the closure of this case and for the return of the seized/collected properties to the concerned persons from whom they were seized/collected. The disputed amount of Rs.15 lakhs may be confiscated to the State as none of the suspects have claimed their rightful ownership of this amount during the investigation till date.” 6. This opinion of the CBI regarding refusal of the sanction for prosecution is based upon a letter dated 7.12.2009 from Shri D.R.Meena, Secretary Government of India, Ministry of Law and Justice, Department of Legal Affairs, New Delhi addressed to Shri Ashwani Kumar, Director Central Bureau of Investigation. It may be relevant to reproduce the letter which reads as under:- “Dr.Meena, Secretary Government of India, Ministry of Law & Justice Department of Legal Affairs Shastri Bhawan, New Delhi-110001 D.O. No.2286/LS Office/09 Dated:7th December, 2009 Dear Shri Ashwani Kumar Please refer to your DO No.26/2/2009-PD/2940 dated 4.12.2009 regarding prosecution sanction in respect of Shri Sanjiv Bansal, Additional Advocate General. In this connection, I may confirm that, as per our records we find no separate proposal for prosecution sanction has been received in this department in respect of the said Shri Sanjiv Bansal. So far as we recall, the proposal for prosecution was collectively received in respect of Mrs. Justice Nirmal Yadav, S/Shri Ravinder Singh, Sanjiv Bansal, Rajiv Gupta and Nirmal Singh U/S 120-B IPC r/w Section 193 r/w Sections 192, 196, 199 and 200 IPC and Sections 11 and 12 of PC Act, 1988 and Substantive Offices thereof. The matter was received by us for advice of the then Attorney General, as there was difference of opinion between the Director of Prosecution and the Director of CBI. The then Attorney General after analysis of the available evidence in para 12 had observed that “there is not a shred of evidence with the said alleged offences were committed by Sanjiv Bansal, Ravinder Singh and Nirmal Singh in conspiracy with Justice Yadav”. Upon further reference from the DOPT, the DOPT was informed that matter had been discussed by the Hon'ble Minister for Law and Justice with the CJI who had observed that no action was required for the present. The case papers relating to Justice Mrs. Yadav and others were returned back to DOPT on 19.10.2009. It is again reiterated that this department has not received any proposal separately in respect of Shri Sanjiv Bansal regarding prosecution sanction. With regards. Yours Sincerely sd/- (D.R. Meena) Crl.Misc. No. M- 14289 of 2011 6 Shri Ashwani Kumar, Director, Central Bureau of Investigation Room No.114, North Block, New Delhi.” 7. On the basis of the aforesaid communication, CBI concluded that the sanction for prosecution has been declined. 8. Closure report was examined by the Special Judge (CBI Court), Chandigarh. On examination, the Special Judge refused to accept the closure report vide his detail order dated 26.3.2010 and directed the CBI to conduct further investigation. CBI carried out further investigation in due deference to the order of the Special Judge and approached the competent authority for grant of sanction for prosecution. The competent authority i.e. the President of India vide order dated 1.3.2011 granted sanction for prosecution of Mrs.Justice Nirmal yadav under Section 19 of PC Act for commission of offence punishable under Section 11 of the PC Act and other offences. As a consequence of the sanction for prosecution, a charge-sheet under Section 120-B of the IPC, Sections 11 and 12 of PC Act read with Sections 192, 193, 196, 199 and 200 of the IPC has been presented in the court of Special Judge (CBI Court), Chandigarh. The learned Special Judge took cognizance of the charge-sheet by passing order dated 18.4.2011 and summoned the petitioner. 9. The petitioner accordingly filed this petition challenging the sanction order, charge-sheet and the proceedings initiated against her, including the order of taking cognizance by the Special Judge (CBI Court), Chandigarh before this Court. Though there are some Crl.Misc. No. M- 14289 of 2011 7 averments in the petition alleging extraneous reasons against unnamed Judges, however, the principal ground for challenging the sanction order and the consequential proceedings is on the question of review of sanction by the competent authority. It is contended by Shri KTS Tulsi, learned Sr. Advocate appearing on behalf of the petitioner that earlier sanction was declined by the then Chief Justice of India, Justice Bala Krishnan and the present incumbent in office has reviewed the earlier decision of the CJI which is impermissible in law. Since the only question which is primarily debated is the reviewability of sanction letter, vide order dated 20.5.2011, information was sought from Secretary to Government of India, Department of Law and Justice with the following directions:- “Secretary to Govt. of India, Department of Law & Justice will file an affidavit whether any opinion was formulated and any recommendation was made by Recommending Authority (the then Hon'ble the Chief Justice of India) to the Govt. refusing sanction in case of the petitioner and whether such opinion was placed before the Sanctioning Authority (President of India) and whether the Sanctioning Authority at any stage declined sanction for prosecution in respect to the present petitioner, if so, the necessary documents (copies) containing the opinion/consultation accorded by the the Hon'ble the Chief Justice of India to the sanctioning authority and order of Sanctioning Authority be filed before this Court in a sealed cover alongwith the affidavit of the Secretary concerned. List on 1.6.2011. Copy of the affidavit shall be furnished to the opposite side by 31.5.2011.” 10. Pursuant to the aforesaid directions, Secretary to government of India Ministry of Law and Justice, Department of Justice filed her affidavit dated 11.7.2011. Reference to this affidavit shall be made at the appropriate stage. While requiring affidavit, a further direction Crl.Misc. No. M- 14289 of 2011 8 was issued to produce necessary documents containing the opinion/consideration accorded by Hon’ble Chief Justice of India, the sanctioning authority and the order of sanctioning authority. 11. Mr.Kaushik, learned counsel appearing on behalf of UOI and Mr.Anupam Gupta, learned counsel appearing for CBI produced the record from the Departments of Ministry of Law and Justice Department of Justice and Ministry of Law Justice Department of Legal Affairs and Department of Personnel and Training New Delhi as also the CBI. 12. Mr.Tulsi, learned Sr. Counsel appearing for the petitioner, besides making oral submissions in detail also filed written submissions. Four points on which arguments have been addressed in detail have been summarized by Mr.Tulsi in his written submissions. The same are noticed here under:- 1.Keeping in view the object of Section 19 of the PC Act, review or reconsideration of the decision to grant or decline sanction, is impermissible. 2.In the instant case, closure report itself recites (at page 284 of the paper-book) that the prosecution sanction was denied and hence the closure report was being filed. This is supported by the letter of the Law Secretary (at page 247) that the CJI had observed that no action was required for the present. The letter dated 15.1.2009 further leaves no manner of doubt that what was forwarded to the CJI was the S.P.'s report containing details of facts, circumstances and evidence brought on record during investigation on basis of which prosecution sanction u/s 19 of PC Act was requested. 3.It is not only the CBI which interpreted the order as declining sanction but the collegium itself, including the present CJI, which accorded approval for transfer of petitioner from Punjab & Haryana High Court to Uttarakhand High Court in Nov./Dec.2009. Thus, the collegium can be presumed to have been made aware of the CJI's order declining sanction. 4.The none of the documents and the files produced before this Hon'ble Court are entitled to any immunity from disclosure. Keeping in view the nature of proceeding (Criminal Trial) in which these documents are capable of establishing the illegality of the criminal proceeding initiated against the petitioner, the public interest of disclosure far outweighs immunity. There is no valid ground or basis Crl.Misc. No. M- 14289 of 2011 9 on which disclosure of documents inspected by this Court can be denied to the petitioner. 13. The legal question relating to review or re- consideration of the grant or decline of sanction shall be dealt with after the points no.2 and 3 raised by Mr.Tulsi, which inter alia includes the factual aspect are considered. 14. The allegations against the petitioner as contained in the charge-sheet presented under Section 173 of the Cr.P.C. are summarized hereinafter. 15. On 13th August, 2008 at 20.30 hours, Shri Parkash Ram came to the house of Ms. Justice Nirmaljit Kaur with one plastic bag in his hand and informed Shri Amrik Singh, peon of Justice Nirmaljit Kaur that papers have come from Delhi to be delivered to Justice Kaur. Shri Amrik Singh took the plastic bag inside. On being directed by Justice Kaur, Shri Amrik Singh opened the bag which was found containing currency notes. On being directed by Justice Kaur, the peon Amrikh Singh caught hold Parkash Ram with the help of guard, Shri Gurvinder Singh and thereafter local police was called who detained Parkash Ram. A formal FIR was, however, registered on 16th August, 2008 on the complaint of Shri Amrik Singh, Peon. Initially, the case was investigated by the local police, however, subsequently, the matter was referred to CBI. 16. The CBI has concluded that one RSA No.550 of 2007 was decided by Smt. Justice Nirmal Yadav, Judge of Punjab and Haryana High Court vide judgment dated 11.3.2008 under the influence of Ravinder Singh who had close association with her and Crl.Misc. No. M- 14289 of 2011 10 Shri Sanjiv Bansal who was interested in Plot No.601, Sector 16, Panchkula, subject matter of the RSA. Sanjiv Bansal had issued cheque for Rs.2.00 crores from his own account in the name of Rajiv Gupta, out of which Rs.1.50 crores was paid to one Shri Vinod Tayal on account of property jointly purchased by Shri Sanjiv Bansal and Rajiv Gupta at Hissar. Another amount of Rs.20 lacs was paid on 16.5.2007 and Rs.15 lacs on 6.6.2007 to Shri Anand Jain, the owner of the plot. It has also been alleged that Shri Rajiv Gupta purchased this plot no.601, Sector 16, Panchkula from Shri Anand Jain for a consideration of Rs.60 lacs for which money was transferred by Shri Sanjiv Bansal from his account. Thus he had personal interest in the property, subject matter of RSA. Sanjiv Bansal, Advocate also appeared as a counsel after superseding a senior counsel Sh.Arun Jain engaged in the case. The CBI in its detailed report also concluded that even though when Rs.15.00 lacs was delivered at the residence of Hon’ble Ms.Justice Nirmaljit Kaur on the evening of 13th August, 2008, Ms. Nirmal Yadav again demanded Rs.15.00 lacs from Ravinder Singh. On the morning of 14th of August, 2008, an amount of Rs.15.00 lacs was delivered to Mrs. Yadav by Rajiv Gupta, a close associate of Sanjiv Bansal, one of the accused in the case. It is also part of investigation that this amount of Rs.15.00 lacs was received by Ms. Yadav as a consideration for deciding RSA No.550 of 2007 pertaining to plot no.601, Sector 16, Panchkula for which Sanjiv Bansal had acquired interest. It is stated that during investigation, it is also revealed that Sanjiv Bansal paid the fare of air tickets of Mrs. Yadav and Mrs. Yadav used matrix mobile phone card provided to her by Shri Crl.Misc. No. M- 14289 of 2011 11 Ravinder Singh on her foreign visit. To establish the close proximity between Mrs. Yadav, Ravinder Singh, Sanjiv Bansal and Rajiv Gupta, CBI has given details of phone calls amongst these accused persons during the period when money changed hands and the incidence of delivery of money at the residence of Ms. Nirmaljit Kaur and even during the period of initial investigation. 17. On the basis of these allegations, CBI after investigation approached the competent authority vide letter dated 15.1.2009 for grant of sanction for prosecution against Mrs. Justice Yadav. It seems that there was difference of opinion between the Director CBI and Director (Prosecution). The matter was accordingly referred to Attorney General of India for his opinion. Attorney General of India recorded his opinion on 20th April, 2009 saying that there is no shred of evidence to prosecute Mrs. Yadav. Based upon the opinion of the Attorney General of India and some discussion between Hon’ ble Law Minister of India and Hon’ble CJI, D.R.Meena, Secretary, Govt. of India, Ministry of Law and Justice, Department of Legal Affairs, vide his letter dated 17.12.2009 communicated to the Director, CBI that upon further reference from the DOPT, the DOPT was informed that the matter had been discussed by the Hon’ble Minister for Law and Justice with the CJI who had observed that no action was required for the present. The case papers related to Justice Nirmal Yadav and others were returned back to DOPT on 19.10.2009. Treating this letter as refusal, CBI filed the closure report before the Special Judge(CBI Court), Chandigarh. Learned Special Judge vide his order dated 26.3.2010 refused to accept the closure report and issued directions for further investigation. Crl.Misc. No. M- 14289 of 2011 12 18. Both the sides have relied upon the judgment of Hon’ble Apex Court in case of K.Veeraswami vs.Union of India and others, 1991 (3) SCC 655. This judgment relates to the prosecution of a sitting Judge of the superior Court and details the safeguards before any criminal action is initiated against the Judge of the High Court and Supreme Court. Relevant observations/directions contained in the judgment are noticed here under:- “60.The Chief Justice of India is a participatory functionary in the matter of appointment of Judges of the Supreme Court and the High Courts. (Articles 124(2) and 2 17(1).) Even for transfer of a Judge from one High Court to another the Chief Justice should be consulted by the President of India (Article 222). If any question arises as to the age of a Judge of a High Court,the question shall be decided by the President after consultation with the Chief Justice of India (Article 217 (3)). Secondly, the Chief Justice being the head of the judiciary is primarily concerned with the integrity and impartiality of the judiciary. Hence it is necessary that the Chief Justice of India is not kept out of the picture of any criminal case contemplated against a Judge. He would be in a better position to give his opinion in the case and consultation with the Chief Justice of India would be of immense assistance to the Government in coming to the right conclusion. We therefore, direct that no criminal case shall be registered under Section 154, Cr. P.C. against Judge of the High Court, Chief Justice of High Court or Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. Due regard must be given by the Government to the opinion expressed by the Chief Justice. If the Chief Justice is of opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. If the Chief Justice of India himself is the person against whom the allegations of criminal misconduct are received the Government shall consult any other Judge or Judges of the Supreme Court. There shall be similar consultation at the stage of examining the question of granting sanction for prosecution and it shall be necessary and appropriate that the question of sanction be guided by and in accordance with the advice of the Chief Justice of India. Accordingly the directions shall go to the Government. These directions, in our opinion, would allay the apprehension of all concerned that the Act is likely to be misused by the Executive for collateral purpose.” (Emphasis supplied) Crl.Misc. No. M- 14289 of 2011 13 19. These directions still hold the field in respect of the criminal prosecution of a judge of High Court/Supreme Court. The directions contained in the aforesaid judgment contemplate consultation with Hon’ble the Chief Justice of India at two stages, firstly at the stage of registration of a criminal case and secondly, at the stage of examining the question of granting sanction for prosecution. Compliance of the aforesaid directions is sine qua non for proceeding against a sitting Judge of the High Court/Supreme Court. Although the petitioner has not disputed the factum of consultation with Hon’ble the Chief Justice of India, both at the stage of registration of FIR against her and subsequent grant of sanction for prosecution, however, it is deemed appropriate to notice the circumstances, as are evident from the record produced before me. 20. On registration of FIR No.250 dated 16.8.2008 under Sections 8 and 9 of the P.C. Act read with Section 120-B and other offences under the IPC pertaining to the delivery of packet containing Rs.15.00 lacs in cash at the residence of Hon’ble Ms. Justice Nirmaljit Kaur by Parkash Ram, Assistant Munshi of Shri Sanjiv Bansal, the then Addl. Advocate General, Government of Haryana and the matter being referred to the CBI for investigation, the CBI intended to examine the role of two sitting Judges of this Court,