ORAL ORDER: (PER A.S OKA, J)
. As per the order dated 20th November 2014 passed by the Hon'ble the Chief Justice on the administrative side, this Petition has been assigned to this Court. We have heard the second Petitioner appearing in person for himself and on behalf of the first Petitioner at great length in the morning session and in the afternoon session. We have heard the learned Advocate General representing the third Respondent. The learned Public Prosecutor represents the seventh Respondent. We have also heard the learned counsel appearing for the fifth, sixth and eighth Respondents.
THE PRAYERS IN THE PRESENT PETITION:
2. The substantive prayers made in this Petition under Article 226 of the Constitution of India read thus:-
“It is therefore most humbly and respectfully prayed that this Hon'ble Court may kindly be pleased to issue appropriate writ, order or direction and further be pleased to:
(i) To hold and declare that the said Final Judgment Order dated 13-6-2012 Passed by Respondents No. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar is Biased and Fradulent due to non Prosecution of 4 Guilty Police officers as per the Law for our Unjustified and Illegal Arrest and Detention, Violations of D K Basu SC 1997 Arrest Guidelines, Forgery, Perjury, False Affidavits, etc. and Contempt of Hon. SC and Hon. SC Directives DESPITE clear Prayers by the Petitioner;
(ii) To direct initiation of appropriate Prosecution against Respondents No. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar u/s 217, 218, 219, 201, 191, 192, 193, 200, 465, 466, 471, 474, r/w Section 120-B of Indian Penal Code;
(iii) Grant Interim Compensation of Rs. 2 Crore to Petitioner as compensation of damages for hardship caused due to unlawful acts by Respondents No. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar;
(iv) Take suo motu cognizance of Contempt of Hon'ble Supreme Court's direction in D.K Basu's case Para 36 by Respondents No. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar for Not issuing Directions for Dismissal of Guilty Police officers for our Illegal Arrest and Jailing and Not initiating Contempt of Hon. Supreme Court Proceedings against Police and try and punish Respondents No. 1 and 2 under Contempt of Courts act;
(v) Grant ad-interim relief in terms of prayer clause (iii);
(vi) That the Petitioner has not filed any similar Writ Petition in this Hon. Bom. High Court or Hon. Supreme Court;
(vii) Direct Respondent No. 3, Registrar General of Bombay High Court to initiate Criminal Prosecution under Sec. 167, 466, 193, 191 etc. of I.P.C against Respondents No. 1 and 2 Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar, and also - as per the Letter of Ministry of Law and Justice sent to Hon. Bom. HC Registrar General dated 02 June 2014. Ref No-L-19017/14/2013-Jus. on Hon. President's Office forwarding my Complaint to Dept of Justice as per my Grievances Regtn. No. PRESEC/E/2014/05517 of 21 March 2014 under CPGRAMS Portal;
(viii) CBI Director be directed to register F.I.R against Respondents Nos. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar u/s. 217, 218, 219, 201, 191, 192, 193, 200, 465, 466, 471, 474, r/w. Sec.120-B of India Penal Code;
(ix) Direct Respondent No. 4 Hon'ble Chief Justice Bombay High Court to transfer Respondents No. 1 and 2. Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar out of Maharashtra State till the enquiry/investigation of the matter in order to ensure free and fair enquiry as per law laid down in 2014 Cr.L.J 9 (S.C);
(x) Since the misbehavior, Criminal offences, incapacity, illegality, malafides and biasness of Respondents No. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar are exfacially proved therefore, they be directed to resign from their posts in view of law laid down by 5-Judge Bench of Hon'ble Supreme Court in the case of K. Veerswami v. Union of India (1991) 3 SCC 655;
(xi) If Respondents No. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar fail to resign within 7 days then appropriate direction be issued for the forwarding reference for impeachment proceeding against Respondents No. 1 and 2, Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar for their proved misbehaviour, incapacity to act as High Court Judge and biased treatment to 79 year old senior citizen widow of freedom fighter petitioner and also violating the mandate of article 14 of the constitution about equality before law and equal protection of the law;
(xii) Hon. Bom. HC Registrar General be directed to seize the records of the case;
(xiii) The C.B.I be directed to collect the mobile phone details of all the accused involved in the conspiracy;
(xiv) That the Petitioner is seeking Compensation of Rs. 20 Crore with an Interim Relief of Rs. 2 Crore, but Reserving her Other Rights for which the petitioner is filing this Crim. WP and also she is filling a Private Complaint for Defamation under the Torts Law in the appropriate Court.”
FACTS ABOUT CRIMINAL WRIT PETITION NO. 1857 OF 2012:
3. Briefly stated, the present Petitioners filed the Criminal Writ Petition No. 1857 of 2012 in this Court which was disposed of by the judgment and order dated 13 June 2013. The said Writ Petition was decided by a Division Bench comprising of the first and second Respondents. The second Petitioner is the son of the first Petitioner. The case made out in the said Petition was that the first Petitioner approached Vashi Police Station in Navi Mumbai for lodging and registering a criminal case against her grandsons and others. It is stated that no action was taken on the basis of the complaint filed by her. The grievance made in this Petition is as regards the illegal detention of the Petitioners therein contrary to the law laid down by the Apex Court in the case of D.K Basu v. State of West Bengal 1997 4 SCC 416. It will be necessary to make a reference to the reliefs sought in the said Petition by the present Petitioners. There was a prayer made for prosecution of the concerned police officers who were responsible for illegally detaining the Petitioners and for illegally handcuffing the second Petitioner. There was a prayer made for issuing a writ of mandamus to register an offence on the basis of complaint of the Petitioners against one Shri Manoj Karani. A prayer was made for grant of compensation for violation of their fundamental rights. Subsequently, the prayers were added for directing suspension and prosecution of the police officers who were responsible for their illegal arrest and detention. A prayer was made for grant of Rs. 10 lakhs to the Petitioners as well as a sum of Rs. 10 lakhs to the mentally challenged daughter of the first Petitioner. A direction was sought against the police officers to take action against Sanjeev Karani and Rakhi Sanjeev Karani, who were allegedly in the contact of the underworld persons. A direction/writ was sought to immediately suspend and prosecute the concerned police officers for illegally detaining and/or handcuffing the Petitioners. A prayer was made for taking necessary action against all the members of Karani family viz. Manoj Karani, Sanjeev Karani, Jeetendra Karani, Narendra Karani, Sunita Karani, Urmi Manoj Karani and Rakhi Sanjeev Karani.
4. The said Petition filed by the Petitioners was partly allowed by the judgment and order dated 13 June 2013 directing the Respondents to pay to each Petitioner an amount of Rs. 3 lakhs within a period of eight weeks from the date of said order. Provision was made for payment of interest, if the amount was not paid within the stipulated time. The Division Bench directed the police officers of Vashi Police Station to examine the complaint submitted by the Petitioners and other necessary documents in support thereof. It was directed that if the complaint and document discloses commission of a cognizable offence, action in accordance with law be initiated. The complaint was as regards the alleged incident of assault on the second Petitioner during the pendency of the said earlier Writ Petition. Though the Petition was dismissed as far as the prayer for issuing a writ of mandamus directing registration of an offence on the basis of the complaint of the first Petitioner, the Division Bench relegated the Petitioners to avail the remedies available to them in law. The Division Bench directed the Respondents to pay costs of Rs. 15,000/- to the Petitioners.
5. We must note here that the State of Maharashtra preferred a Special Leave Petition being Petition for Special Leave to Appeal (Criminal) No. 6534 of 2013 before the Apex Court which was dismissed by an order dated 23rd September 2013. Even the present Petitioners preferred a Special Leave Petition before the Apex Court along with an Application for condonation of delay. On 13 December 2013, the following order was passed by the Apex Court on the said Special Leave Petition preferred by the Petitioners.
“Learned counsel for the petitioner wants to withdraw the Special Leave Petition with liberty to move the High Court. The Special Leave Petition is dismissed as withdrawn with the aforesaid liberty”.
SUBMISSIONS OF THE PETITIONERS:
6. The second Petitioner appearing in person pointed out that in terms of the liberty granted by the Division Bench in the last part of the judgment, Complaint No. 91 of 2014 was filed by the Petitioners in the Court of Judicial Magistrate, First Class, Navi Mumbai and an order dated 1 February 2014 under Sub-section (3) of Section 156 of the Code of Criminal Procedure, 1973 was passed on the said complaint. He also pointed out that the police officers filed Criminal Writ Petition Nos. 427 of 2014 and 439 of 2014 in this Court for challenging the said order of the learned Magistrate. In these Petitions a Division Bench of this Court granted ex-parte stay of the said order. His contention is that an affidavit running into 400 pages as well as a Perjury Application running into 400 pages was filed by the Petitioners which have been misplaced by the office of this Court. His grievance is that the said Petitions are not being heard for last several months. He has also made a grievance as regards the learned Magistrate at Vashi. He pointed out that an action was taken against the learned Magistrate and he was suspended. He pointed out that a complaint was filed against the Petitioners on which process was issued. He pointed out that a revision application was required to be preferred by the Petitioners in which relief was partly granted to the Petitioners. Therefore, the Petitioners have moved this Court under Section 482 of the Code of Criminal Procedure, 1973 for quashing of the process issued in which the say of the Respondents was called for. The second Petitioner appearing in person pointed out the manner in which the Petitioners were treated by the learned Sessions Judge pending the hearing of an application for Anticipatory Bail filed by them. He pointed out that in the Case No. SCC 7125 of 2014 before the Judicial Magistrate, First Class, Vashi, a charge sheet has been filed against the seven members of Karani family. He invited our attention to the decision of the Apex Court in the case of D.K Basu and in particular paragraph 36 thereof. He submitted that there was already a finding recorded by the Division Bench in the Writ Petition No. 1857 of 2012 that the police officers were indulging in forgery and perjury. He urged that though there were no specific prayers for initiating action for contempt, in terms of the directions contained in the Paragraph 36 in the case of D.K Basu, this Court while disposing of the earlier Petition ought to have taken suo motu action of initiating contempt proceedings against the police officers who defied the directions of the Apex Court. He urged that a departmental inquiry ought to have been ordered against the erring police officers. His submission is that the learned Judges of the Division Bench are guilty of committing criminal conspiracy and they have committed an offence under Sections 218 and 219 read with Section 120B of the Indian Penal Code. He urged that the first and second Respondents who are the sitting judges of this Court who partly allowed earlier Writ Petition No. 1857 of 2012 filed by the Petitioners have conspired with the guilty police officers.
7. He invited our attention to the correspondence made by him to various constitutional and other authorities. He pointed out that on the basis of the complaint made by the Petitioners, in fact, a direction was issued by the Government of India to this Court to take action against the learned Judges (first and second Respondents). He invited our attention to the Office Memorandum dated 2nd June 2014 issued by the Government of India, Ministry of Law & Justice Department.
8. He invited our attention to the law laid down by the Apex Court in the case of Subramanian Swamy v. Manmohan Singh 2012 3 SCC 64 and in particular Paragraph 81 thereof. He urged that in view of the said decision, the consent to prosecute is deemed to have been granted. He urged that though the Apex Court has recommended to the Parliament to amend the provisions of Prevention of Corruption Act, 1988 and to make a provision of deemed sanction, the directions issued by the Apex Court are binding on this Court and all other Courts in India. He urged that obiter dictum is also binding on this Court. Pointing out the Application made by them for grant of sanction, he urged that this is a case where the sanction is deemed to have been granted by the President of India and the Hon'ble Chief Justice of India. He pointed out that the law laid down by the Apex Court has been reiterated in the case of Manzoor Ali Khan v. Union of India Decided on 6th August 2014 in WP C No. 305 of 2007.
He pointed out that apart from the criminal conspiracy, the learned Judges of this Court are guilty of committing an offence under Sections 218 and 219 of the Indian Penal Code. He urged that by completely ignoring the settled law, no action was ordered by the Judges against the police officers who were guilty of crimes of forgery and perjury. He urged that the failure to follow the directions issued by the Apex Court in the case of D.K Basu makes out a case of commission of offence by the first and second Respondents.
9. Inviting our attention to the judgment and order dated 11 November 2014 in Criminal Writ Petition No. 3611 of 2014, he urged that for various reasons, the said judgment is per incuriam and cannot be read as a binding precedent. He urged that in any case, the said judgment will not bind the Court as it is not a binding precedent. He relied upon several decisions of the Apex Court in support of his contention that the judgment is per incuriam.
10. He pointed out that serious criminal offences committed by the four guilty police officers have been proved as recorded by this Court and upheld by the Apex Court. He submitted that the first Petitioner has been met with a grave injustice. He pointed out that though there is a finding that not only she was jailed illegally in violation of the judgment of the Apex Court in the case of D.K Basu, apart from the compensation of Rs. 3 lakhs, no one relief has been granted to her. His contention is that the first Petitioner and in fact both the Petitioners had been treated badly by the Courts and no relief has been granted to them. He pointed out that in terms of the liberty granted by this Court in the judgment delivered by the first and second Respondents, he availed the remedy before the Criminal Court but the order of the Criminal Court has been stayed by this Court. He urged that the judgment delivered by the first and second Respondents is fraudulent and at any stage of any other proceedings, this Court or any Court can go into the question whether the said judgment is obtained by fraud. He submitted that this Court can always go into the issue whether the said judgment is obtained by fraud and record a finding that it is nullity. He relied upon a decision of the Apex Court in the case of Union of India v. Ramesh Gandhi 2012 1 SCC 476. He submitted that this Court can go into the question whether the judgment of the Coordinate Bench is nullity. He submitted that when a common man commits forgery or perjury, he is sent to jail for 3 to 7 years, but when a police officer commits a forgery or perjury, he is being given a clean chit. He urged that only a part of the judgment of the first and second Respondents in Criminal Writ Petition No. 1857 of 2012 is nullity. He pointed out that by not following the mandatory law laid down by the Apex Court in the case of D.K Basu, the first and the second Respondents have committed an offence. He submitted that on one hand, the order of registration of First Information Report passed on the complaint filed by the Petitioners has been stayed by this Court on 6 February 2014 without hearing them and on the other hand, an affidavit-in-reply running into 400 pages and Perjury Application running into 400 pages filed by the Petitioners in the said Writ Petition filed by the Police Officers have been misplaced and the stay continues to operate.
11. He submitted that the Petition which was decided by the first and second Respondents was heard by eleven different Benches. He pointed out that though he approached several Authorities, no action has been taken against the first and second Respondents. He would, therefore, submit that as the first and the second Respondents committed an offence as contended in the Petition, criminal law needs to be set in motion by against the two Judges of this Court and investigation needs to be made. He submitted that the four guilty police officers have been let off. He submitted that had the Division Bench consisting of the first and the second Respondents prosecuted the four guilty police officers as per the law, the Petitioners would not have faced this additional litigation troubles, costs, mental and physical torture. He urged that eighty year old senior citizen, who is the widow of a freedom fighter, has suffered for last four years. In the second written notes of arguments (styled as “Purshis-2”), he stated that either this Court should grant relief or do full injustice to the Petitioners by detaining them for 100 years or hang them. The second Petitioner stated that if anything happens to the first Petitioner or to her family, this Court will be responsible for the same and even the natural death of the first Petitioner will be a judicial murder.
SUBMISSIONS OF THE LEARNED ADVOCATE GENERAL AND THE COUNSEL FOR CBI:
12. The learned Advocate General appearing for the Registrar General of this Court relied upon the provisions of the Judges (Protection) Act, 1985 (for short “the said Act of 1985”) and in particular Sections 3 and 4 thereof. He also relied upon a decision of the learned Single Judge of this Court in the case of N.V Shamsundar, Civil Judge (Sr.Dn) v. Savitabai W/o Sambhirmal Singhvi 2006 5 Mh.L.J 639. He submitted that as distinguished from the 1850 Act which protected the judicial officers acting in good faith, the said Act of 1985 gives absolute protection to the judicial officers against the prosecution. He also invited our attention to what is held by the Apex Court in the case of K. Veeraswami v. Union of India 1991 3 SCC 655 and in particular Paragraph 60 thereof. He submitted that the decision in the case of Subramanian Swamy does not lay down that there is a sanction by deeming fiction when the application made for grant of sanction under Section 19 of the Prevention of Corruption Act, 1988 is not decided with the stipulated time limit. He pointed out that the said decision deals with the provisions of the Prevention of Corruption Act, 1988 and not the provisions of the Indian Penal Code. He urged that there is no provision both in the Prevention of Corruption Act, 1988 and the Indian Penal Code for deemed sanction to prosecute. His submission is that filing of the present Petition is nothing but gross abuse of the process of law. As far as the order passed in the Special Leave Petition filed by the Petitioners is concerned, he urged that in view of the liberty granted by the Apex Court, if it is otherwise permissible in law, the Applicants could have applied to this Court for grant of reliefs which were not granted by the Division Bench in the earlier Petition. He urged that liberty granted by the Apex Court cannot be construed to mean that a liberty was granted to approach this Court by filing a Petition for prosecuting the Judges of this Court who deliverd the Judgment which was challenged before the Apex Court by the Petitioners. He urged that the Judgment of this Court has become final as the same has been confirmed in a Special Leave Petition filed by the State of Maharashtra. The learned counsel appearing for the fifth and sixth Respondents urged that the Central Bureau of Investigation which is a special agency cannot take cognizance of an offence like an ordinary police station. He placed reliance on the communication dated 30 June 2014 issued by the CBI ACB to the Director General of Police of the State Government and urged that no direction can be issued against the CBI.
CONSIDERATION OF SUBMISSIONS:
13. We have carefully considered the submissions. We have perused the written submissions styled as Purshis and Purshis 2. At the outset, we must note here that in the Special Leave Petition filed by the State of Maharashtra and Others, the judgment and order dated 13 June 2013 passed by a Division Bench of this Court (of the first and second Respondents) in Criminal Writ Petition No. 1857 of 2012 has been confirmed and the Special Leave Petition has been dismissed.
14. Thus, there is a confirmation of the view taken by this Court by the Apex Court. As far the Special Leave Petition filed by the Petitioners is concerned, we have already quoted the order dated 13 December 2013 which grants liberty to the Petitioners to move this Court. The second Petitioner appearing in person stated that in the Petition before the Apex Court, a grievance was made as regards the failure to grant other reliefs which were prayed for in the Criminal Writ Petition No. 1857 of 2012, if permissible in law. Thus, it is obvious that a liberty was granted by the Apex Court to the Petitioners by its order dated 13 December 2013 to approach this Court by filing an appropriate proceeding for seeking reliefs which were not granted to the Petitioners in the Criminal Writ Petition No. 1857 of 2012. No liberty was granted to file the present Petition seeking prosecution of the Judges of this Court who delivered the Judgment which was challenged by the Petitioners before the Apex Court. Therefore, notwithstanding the disposal of this Petition, the liberty granted by the Apex Court will continue to remain open to the Petitioners to file appropriate proceedings for claiming reliefs in accordance with law.
15. We have carefully perused the averments made in the Petition and the averments made in the written submissions styled as “Purshis” and “Purshis-2”. The gist of the grievance of the Petitioners is that they are forced to file this Petition as they were denied the relief of a direction to take disciplinary proceedings against the erring police officers, to prosecute the erring police officers and to take a contempt action against the erring police officers in terms of the Paragraph 36 of the decision of the Apex Court in the case of D.K Basu. The grievance is that even the order of registration of First Information Report against the erring police officers passed by the learned Magistrate on a complaint filed by the Petitioners has been stayed by this Court in another proceedings filed by the police officers and the Stay is not being vacated. Other case is that the learned Sessions Judge at Thane ill treated the Petitioners while dealing with the Anticipatory Bail Application filed by them. The grievance is that as the Petitioners have not been granted all the reliefs which they had sought, they are forced to file this Petition seeking prosecution of the Judges of this Court who have partly allowed the Criminal Writ Petition No. 1857 of 2012. In the Purshis 2, the Petitioners have stated thus:
“(g) THAT IS WHY WE WERE FORCED TO FILE THE SAID COMPLAINT AGAINST the Respondents No. 1 and 2 Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar ON 19-3-2014-BECAUSE IF the Respondents No. 1 and 2 Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar HAD PROSECUTED THE 4 GUILTY POLICE OFFICERS AS PER THE LAW AND OUR REPEATED PRAYERS - THEN WE WOULD NOT HAVE FACED THIS ADDITIONAL LITIGATION TROUBLES, COSTS, MENTAL AND PHYSICAL TORTURE - ESPECIALLY FOR AN 80 YEAR OLD VERY SENIOR CITIZEN WIDOW OF FREEDOM FIGHTER HAVING ALSO TO TAKE CARE OF A MENTALLY CHALLENGED DAUGHTER TOO.
(h) That on the next hearing we were shockingly given a Bench where Respondent No. 2 Smt. Mridula Bhatkar was with Hon. Justice Naresh Patil - FOR ONE DAY ONLY (???!!!) - And the Hon. Bench recused by saying ‘Not Before this Bench’ as we had filed the said complaint against the Respondents No. 1 and 2 Ld. Judges Mr. P.V Hardas and Ms. Mridula Bhatkar.
(i) After that - NOT A SINGLE HEARING HAS BEEN CONDUCTED IN THE ABOVE FIR MATTERS IN Crim. WP NOS. 427/2014 AND 439/2014 AND APPLICATION 117/2014 - TILL TODAY - GIVING US THE EXCUSE THAT WE HAVE FILED A COMPLAINT AGAINST THE LD. JUDGES - DOING MORE INJUSTICE TO ME AND GIVING FURTHER PROTECTION TO GUILTY POLICE OFFICERS !!!
9. Even after our said Complaint against the Respondents No. 1 and 2 Ld, Judges Mr. P.V Hardas and Ms. Mridula Bhatkar, we did not file this Petition No. 4188/2014 till November 2014 - EVEN THOUGH WE HAD A DEEMED SANCTION FROM HON. PRESIDENT AND HON. CJI-SC FROM 20-6-2014 - AFTER 3 MONTHS FROM OUR COMPLAINT DATED dated 19-3-2014.
WE WERE FORCED TO FILE THIS PETITION IN NOVEMBER 2014 BECAUSE:”
Thus, the real grievance of the Petitioners appears to be as regards the failure to grant relief to them even in other proceedings.
16. We have already referred to the reliefs sought in the Criminal Writ Petition No. 1857 of 2012 and the reliefs granted by the Division Bench. Apart from granting compensation, the Division Bench directed the police officer to investigate into the complaint filed about the incident which had allegedly taken place during the pendency of this Petition. The Division Bench granted liberty to the Petitioners to adopt appropriate remedies. The Petitioners adopted the remedy by filing a complaint in the Court of Judicial Magistrate, First Class at Vashi. The Petitioners challenged the Judgment of this Court by filing a Special Leave Petition which was withdrawn by them with liberty to file appropriate proceedings before this Court. In substance, the grievance of the Petitioners is that all the reliefs which were sought by them in the Criminal Writ Petition No. 1857 of 2012 were not granted to them and even in the other proceedings with which the first and the second Respondents are not concerned, they could not get any relief.
17. The allegation in the Petition is that the first and second Respondents (sitting Judges of this Court) conspired with the police officers against whom relief was sought by the Petitioners to commit offences punishable under Sections 217, 218, 219, 201, 191, 192, 193, 200, 465, 466, 471, 474 read with Section 120-B of the Penal Code. There is no allegation of meeting of minds which is the foundation of conspiracy. There is also an allegation of commission of offences under Sections 167, 466, 193 and 191 of the Penal Code. By not granting a particular relief to the Petitioners while deciding the Petition filed by the Petitioners, the learned Judges have not committed any offence. Even taking the case made out by the Petitioners in this Petition as it is, we find that no case of commission of any offence alleged by the Petitioners against the first and the second Respondents is made out. Therefore, no action can be taken on the basis of the Memorandum dated 2 June 2014. Refusal to grant a particular relief in judicial proceedings by the Judges does not amount to commission of any offence. The said contention is not only wrong but preposterous.
18. As far as the argument that a part of the judgment and order dated 13 June 2013 is nullity is concerned, we must note here that the judgment of this Court has been confirmed by the Apex Court in the Special Leave Petition filed by the State Government. Moreover, the case made out by the Petitioners is that the reliefs which according to them ought to have granted have not been granted. Their contention is that the directions in terms of paragraph 36 of the decision of the Apex Court in the case of D.K Basu have not been issued by the Division Bench. Even by taking these contentions as correct and even assuming without accepting that the reliefs were wrongly denied to the Petitioners, we fail to understand as to how the judgment of the Division Bench will be rendered null and void especially in the light of the fact that the case made out by the Petitioners as regards their illegal detention has been accepted by the Division Bench under the very judgment and compensation has been granted to them. Moreover, the ingredients of fraud have not been pleaded. Therefore, we are unable to accept the submission that a part of the judgment and order dated 13 June 2013 is nullity.
19. The grievance of the Petitioners is that the learned Judges ought to have initiated contempt proceedings against the police officers and ought to have directed initiation of the disciplinary proceedings against the officers in terms of paragraph 36 of the decision of D.K Basu. Even the Apex Court has found nothing wrong about the failure of the Judges to pass such orders. Moreover, the learned Judges were exercising extraordinary jurisdiction under Article 226 which is always discretionary. Therefore, there is no merit in the contention that the learned judges are guilty of contempt by failing to follow the directions in Paragraph 36 of the decision in the case of D.K Basu.
20. Now, we turn to the issue regarding deemed sanction. Reliance has been placed by the second Petitioner appearing in person on the decision of the Apex Court in the case of Subrmanian Swamy and in particular Paragraph 81 thereof which reads thus:-
“81. In my view, Parliament should consider the constitutional imperative of Article 14 enshrining the Rule of Law wherein ‘due process of law’ has been read into by introducing a time-limit in Section 19 of the PC Act, 1988 for its working in a reasonable manner. Parliament may, in my opinion, consider the following guidelines:
a) All proposals for sanction placed before any sanctioning authority empowered to grant sanction for prosecution of a public servant under section 19 of the pc act must be decided within a period of three months of the receipt of the proposal by the authority concerned.
b) Where consultation is required with the Attorney General or the Solicitor General or the Advocate General of the State, as the case may be, and the same is not possible within the three months mentioned in clause (a) above, an extension of one month period may be allowed, but the request for consultation is to be sent in writing within the three months mentioned in clause (a) above. A copy of the said request will be sent to the prosecuting agency or the private complainant to intimate them about the extension of the time-limit.
c) At the end of the extended period of time-limit, if no decision is taken, sanction will be deemed to have been granted to the proposal for prosecution, and the prosecuting agency or the private complainant will proceed to file the charge-sheet/complaint in the court to commence prosecution within 15 days of the expiry of the aforementioned time-limit”.
21. On plain reading of Paragraph 81 of the said decision in the case of Subramanian Swamy, all that the Apex Court has done is to suggest that the Parliament should consider the guidelines which are incorporated in Paragraph 81. One of the suggested guidelines provides that if within the prescribed or extended time limit, no decision is taken on the Application for grant of sanction, the sanction will be deemed to have been granted. What is stated in Paragraph 81 are only the suggestions made by the Apex Court to the Parliament. By no stretch of imagination what is stated in Paragraph 81 can be considered even as obiter dictum. The decision of the Apex Court in the case of Subramanian Swamy cannot be read to mean that a law has been laid down by the Apex Court that on the failure of the sanctioning authority to take a decision on the Application for grant of sanction within the specified time, the same is deemed to have been granted. That is not the law laid down by the Apex Court. The second Petitioner appearing in person also relied upon the subsequent decision of the Apex Court in the case of Manzoor Ali Khan v. Union of India in Writ Petition (Civil) No. 305 of 2007. We have perused the said judgment. The said judgment reproduces Paragraph 81 of the decision of the Apex Court in the case of Subramanian Swamy.
22. We must also note here that both the decisions of the Apex Court in the cases of Subramanian Swamy and Manzoor Ali Khan deal with the provisions of the Prevention of Corruption Act, 1988 and not the issue of sanction to prosecute for offences under the provisions of the Indian Penal Code. As the position stands today, the concept of deemed sanction is foreign to the offences punishable under the Prevention of Corruption Act, 1988 and to the offences punishable under the Indian Penal Code.
23. At this stage, during the course of dictation of Judgment, the second Petitioner appearing in person pointed out the Paragraph Nos. 48 of the decision of the Apex Court in the case of Subramanian Swamy which reads thus:
“48 In para 58 of the judgment in Vineet Narain, the Court gave several directions in relation to CBI, CVC and the Enforcement Directorate. In para 58(I)(15), the Court gave the following direction:
“58.(I)(15) Time-limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General (AG) or any other law officer in the AG's office”.
24. Paragraph 48 refers to the decision of Vineet Naraian7. In the case of Vineet Naraian, the Apex Court issued certain directions. One of the directions issued has been quoted above by the Apex Court. The direction is that the time limit of three months for grant of sanction for prosecution must be strictly adhered to. However, additional time of one month may be allowed where consultation is required with the Attorney General or any other law officer in the office of the Attorney General. We must note here that even in the case of Vineet Naraian and Paragraph 48 of the decision of the Apex Court in the case of Subramanian Swamy, the Apex Court has not held that if the time limit for grant of sanction for prosecution is not adhered to, the sanction will be deemed to have been granted. There is no provision in the relevant penal statutes regarding deemed sanction and that is the reason why in Paragraph 81 of the decision in the case of Subramanian Swamy, the Apex Court recommended to the Parliament to consider the suggestion of incorporating a provision in the statute regarding deemed sanction.
25. Our attention is invited to the provisions of the Judges (Protection) Act, 1985 and in particular Sections 3 and 4 thereof which read thus:-
“3. Additional protection to Judges.—(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provisions of sub-sec.(2), no Court shall entertain 7 (1998) 1 SCC 226 or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of, acting or purporting to act in the discharge of his official or judicial duty or function.”
4. Saving.- The provision of this Act shall be in addition to, and not in derogation of, the provisions of any other law for the time being in force providing for protection of Judges.”
26. The mandate of Section 3 is very clear. No Court shall entertain or continue any civil or criminal proceedings against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function. The Section 4 saves the protection granted under the other enactments like Section 77 of the Indian Penal Code. The learned Advocate General placed reliance on a decision of the learned Single Judge of this Court in the case of N.V Shamsunder in which the learned Single Judge has held that a conjoint reading of Sections 3 and 4 of the said Act of 1985 makes it clear that the protection given to a Judge for any act, thing or word committed, done or spoken by him while discharging official or judicial duty/function is absolute. The learned Single Judge also considered the provisions of the Judicial Officers' (Protection Act), 1850 and in particular Section 1 thereof and observed that the earlier enactment granting protection only to action taken in good faith has been done away with by the said Act of 1985. We concur with the view taken by the learned Single Judge on the interpretation of Sections 3 and 4 of the said Act of 1985.
27. At this stage, the second Petitioner appearing in person by interrupting the dictation of Judgment invited our attention to Paragraph 56 of the decision of the Apex Court in the case of Subramanin Swamy. He pointed out that there is a direction issued to all the Authorities to take appropriate action on the representation made by a citizen for grant of sanction for the prosecution of a public servant strictly in accordance with the directions contained in the case of Vineet Naraian. We have already pointed out that the direction is to decide such Applications within the time stipulated. The Apex Court has not laid down the law that if the sanctioning authority refuses to grant sanction within the time specified by the Apex Court, the sanction will be deemed to have been granted. We again reiterate that the Apex Court merely recommended to the Parliament to make an appropriate provision for grant of deemed sanction for prosecution. Since this submission is made by the second Petitioner appearing in person, we must also note that the question which arose for consideration in the case of Subramanian Swamy which is noted in Paragraph 1 of the said judgment which reads thus:-
“1. Leave granted. Whether a complaint can be filed by a citizen for prosecuting a public servant for an offence under the Prevention of Corruption Act, 1988 (for short “the 1988 Act”) and whether the authority competent to sanction prosecution of a public servant for offences under the 1988 Act is required to take an appropriate decision within the time specified in clause (I)(15) of the directions contained in para 58 of the judgment of this Court in Vineet Narain v. Union of India and the guidelines issued by the Central Government, Department of Personnel and Training and the Central Vigilance Commission (CVC) are the questions which require consideration in this appeal.”
28. It will be necessary to make a reference to the decision of the Apex Court in the case of K. Veeraswami and what is directed by the Apex Court in Paragraph 60 thereof which reads thus:-
“60. …..We, therefore, direct that no criminal case shall be registered under Section 154, CrPC against a 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 added)
29. The said well known decision has been rendered by the Constitution Bench of the Apex Court consisted of the five Hon'ble Judges. The direction issued by the Apex Court is that no criminal case shall be registered under Section 154 of the Code of Criminal Procedure, 1973 against a Judge of the High Court, a Chief Justice of the High Court or a Judge of the Supreme Court unless the Chief Justice of India is consulted in the matter. In the written submissions, the second Petitioner appearing in person has stated that the directions of the Apex Court in the case of K. Veeraswami are relating to the offences under the provisions of Prevention of Corruption Act, 1988. But we find that there is clear direction of the Apex Court not to register FIR without consultation with the Chief Justice.
30. There cannot be any dispute that the offences which are alleged against the first and second Respondents in this Petition require sanction and there is no sanction granted by the concerned Sanctioning Authority.
31. We are conscious of the fact that there is a prayer made by the Petitioners in their Petition in the alternative is that if this Court does not accept that there is a deemed sanction to prosecute against the first and the second Respondents, this Court should direct the concerned Sanctioning Authority to decide the Application for sanction within a specified time. We have already recorded our finding that even accepting the case made out by the Petitioners as correct, no offence is made out as against the first and the second Respondents. Therefore, we are unable to issue such a direction sought by the Petitioners. We, however, make it clear that we have not adjudicated upon the issue whether the Sanctioning Authority can grant sanction to prosecute the first and second Respondents and it is for the Sanctioning Authority to deal with the said issue in accordance with law. However, the Sanctioning Authority is bound to consider the Prohibition under the said Act of 1985 as well as findings recorded in this Judgment while taking appropriate decision.
32. Thus, we reiterate that taking the case of the Petitioners as it is, no case of commission of any offence by the first and second Respondents as alleged by the Petitioners is made out. In view of what we have held above, no relief can be granted to the Petitioners against the first and second Respondents.
33. Before we part with the judgment, we must record what the second Petitioner appearing in person has submitted orally and what is recorded in writing in Paragraph 14 of the Purshis-2. What is suggested is that if anything goes wrong with the Petitioners, the High Court shall be responsible for the same. In paragraph 14 of Purshis 2, the Petitioners have stated thus:
“14. PLEASE GIVE ME JUSTICE - OR - DO FULL INJUSTICE TO ME - JAIL ME FOR 100 YEARS OR HANG ME - RAHTER THAN HARASSING AND TORTURING ME AT THE AGE OF 80 YEARS - LIKE THIS - FOR NO FAULT OF MINE - WE ARE THE VICTIMS AND EVEN HIGH COURT IS DOING MORE INJUSTICE TO US !!!
PLEASE NOTE - IF ANYTHING HAPPENS TO ME OR MY FAMILY - THE HIGH COURT SHALL BE RESPONSIBLE FOR THE SAME - UNDER THESE CIRCUMSTANCES EVEN MY “NATURAL” DEATH WILL BE A MURDER - BECAUSE HOW MUCH INJUSTICE CAN AN 80 YEAR POOR WIDOW VICTIM TAKE SINCE LAST 4 YEARS ???!!!”
34. As far as the aforesaid submissions are concerned, with a great difficulty that we are showing restraint. On this aspect, it will be necessary to make a reference to the decision of the Apex Court in the case of Chetak Construction Ltd. v. Om Prakash and in particular what is held in Paragraph 16 thereof, which reads thus:-
“16. Indeed, no lawyer or litigant can be permitted to browbeat the court or malign the presiding officer with a view to get a favourable order. Judges shall not be able to perform their duties freely and fairly if such activities were permitted and in the result administration of justice would become a casualty and Rule of Law would receive a setback. The Judges are obliged to decide cases impartially and without any fear or favour. Lawyers and litigants cannot be allowed to “terrorize” or “intimidate” Judges with a view to “secure” orders which they want. This is basic and fundamental and no civilised system of administration of justice can permit it…”
(emphasis added)
35. The observations of the Apex Court in the case of Chetak Construction Ltd. are squarely applicable to what is quoted in Paragraph 33 above.
36. However, we allow the matter to rest at that. Notwithstanding all this, while recording our disapproval, we are not taking the matter further as we are dealing with a case of 80 year old first Petitioner in whose favour there is a finding that the police have unauthorisedly and illegally detained her.
37. Though the learned Advocate General has submitted that filing of such Petition making an allegation of commission of offences under the Indian Penal Code against the sitting Judges of this Court is gross abuse of the process of law, here again we are again taking a lenient view. We have noted the objectionable averments in the Petition and in the written submissions. We are tempted to quote what a distinguished Judge of the Apex Court has observed in the well known judgment in the case of In Re S. Mulgaokar8. He has observed that:
“The court will not be prompted to act as a result of an easy irritability. Much rather, it shall take noetic look at the conspectus of features and be guided by a constellation of constitutional and other considerations….”
38. We find that the Petitioners are involved in many litigations. The root cause of the litigations is the family dispute of the first Petitioner with some of her own family members including her grand children. We presume that everything said in the Petition and written submissions is on account of frustration and desperation. It is stated by the second Petitioner during the course of hearing that they are being adviced by some lawyers and NGOs. It appears that the Petitioners are not being correctly advised and perhaps, someone has misled them, which resulted in filing of this Petition. Therefore, this is a fit case where leniency deserves to be shown by ignoring objectionable statements in the Petition, in the written submissions and in what is canvassed before the Court. As suggested by the Apex Court In Re S. Mulgaokar, this Court is willing to ignore, “by a majestic liberalism” what is said by the Petitioners. As a Court exercising jurisdiction under the Constitution, we refused to get easily provoked.
39. We, therefore, see no reason to grant any reliefs to the Petitioners in this Petition. As we have held earlier, notwithstanding the discussion in this judgment and what we have held above, the liberty granted by the Apex Court to the Petitioners will remain open provided it is used in accordance with law. Though the second Petitioner appearing in person has made some statements about the merits of the other pending litigation including the Writ Petition filed in this Court by the police officers, we make it clear that we have not made any adjudication on the said issues involved in other pending litigations.
40. Subject to what is observed above, the Petition is rejected.