# RAJJV RAN JAN SINGH 'LALAN' AND ANR v. UNION OF INDIA AND ORS

- **Citation:** [2006] Supp. 4 S.C.R. 742
- **Court:** Supreme Court of India
- **Decided:** 2006
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rajjv-ran-jan-singh-lalan-and-anr-v-union-of-india-and-ors-21806
- **Pages:** 53

## Headnote

A
RAJJV RAN JAN SINGH 'LALAN' AND ANR.
v.
UNION OF INDIA AND ORS.
AUGUST 21. 2006.
B [K.G. BALAKRISHNAN. DR. AR. LAKSHMANAN AND S.H. KAPADIA,JJ.]
Constitution of India, 1950:
Articles 32 and 235-Writ of mandamus-Case under provisions of
C Prevention of Corruption Act for acquiring disproportionate assets pending
against two former Chief Ministers-Cases arising out of Fodder Scam pending
before Special Judge-Revenue not filing appeals in income tax cases decided
by IT AT in favour of the two Chief Ministers-Writ petition as public interest
litigation by two MPs alleging the said two former Chief Ministers using
D their power and influence in transfer of Member. !TAT earlier hearing their
appeals-Transfer of Prosecutor in Prevention of Corruption Act caseTransfer of Special Judge and appointment of another officer in his placePrayers for direction to Revenue to file appeals against decision of ITATDirection to High Court to re-consider appointment of Special Judge-To reappoint the same prosecutor-Trial pending before Special Judge to be
E monitored by Supreme Court and to cancel bail of the two former Chief
Ministers-Held, Per Majority (Kapadia, J dissenting), the prayers sought
for in the writ petitions cannot be allowed and the writ petitions being
without merits are liable to be dismissed-Public Interest LitigationPrevention of Corruption Act, 1986-ss. 13(/)(e) and 13(2)-fncome Tax
F Act-s.260-A.
A large scale defalcation of public funds of crores of rupees in the
Department of Animal Husbandry in the State of Bihar came to light during
the tenure or respondent No. 5 as Chief Minister of Bihar. The petitioners,
who were Members of the Parliament, filed a writ petition in the Patna High
G Court. Another writ petition was filed in the Supreme Court. Consequently,
several cases were registered by the police and the investigation was
entrusted to the Central Bureau of Investigation. The Supreme Court directed
that the investigation would be monitored by a Division Bench of the Patna
High Court. The State Government was asked to assign adequate number of
H
742
...
RAJIV RANJAN SINGH 'LALAN' v. U.O.l.
743
Special Judges to deal with the cases expeditiously. Later a case under the A
provisions of the Prevention of Corruption Act was registered against
respondent No. 5, on the allegations that he, as Chief Minister of Bihar, had
acquired assets disproportionate to his known sources of income. Respondent
No. 4, the wife of respondent No. 5, who also became Chief Minister of Bihar
later, was also charge-sheeted in the said case for abetment u/s 109 IPC read
with ss.13(1)(e) and 13(2) of the Prevention of Corruption Act. The case was B
numbered as Special Case No. 5/1998 and was pending in the Court of Special
Judge, Patna.
The petitioners filed the present writ petitions as public interest
litigation alleging that certain income tax appeals of respondent nos. 4 and 5 C
were pending before the Income Tax Appellate Tribunal; the Member who was
hearing the appeals was sent on deputation; the Bench comprising new
Member decided the case in favour of respondent nos. 4 and 5 and the Revenue
did not file any further appeal in those matters; that when the Special Case
no.5/1998 pending before the Special Judge was at the final stage of hearing,
the Prosecutor was changed and another person who had no experience of D
conducting prosecution was appointed; that the Special Judge, CBI who was
hearing the fodder scam matters, was transferred and another Special Judge
was nominated, who was having a poor record and was not senior to be
appointed as a Special Judge. It was submitted that respondents no. 4 and 5
still wield influence and power and, therefore, the Supreme Court should E
monitor the trial pending before the Special Judge, Patna; and the bail granted
to them should be cancelled.
It was contended for respondent nos. 4 and 5 that filing of the writ
prtitions was a politically motivated move to malign them~ It was submitted
that both the pe

## Text

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A
RAJJV RAN JAN SINGH 'LALAN' AND ANR.
v.
UNION OF INDIA AND ORS.
AUGUST 21. 2006.
B [K.G. BALAKRISHNAN. DR. AR. LAKSHMANAN AND S.H. KAPADIA,JJ.]
Constitution of India, 1950:
Articles 32 and 235-Writ of mandamus-Case under provisions of
C Prevention of Corruption Act for acquiring disproportionate assets pending
against two former Chief Ministers-Cases arising out of Fodder Scam pending
before Special Judge-Revenue not filing appeals in income tax cases decided
by IT AT in favour of the two Chief Ministers-Writ petition as public interest
litigation by two MPs alleging the said two former Chief Ministers using
D their power and influence in transfer of Member. !TAT earlier hearing their
appeals-Transfer of Prosecutor in Prevention of Corruption Act caseTransfer of Special Judge and appointment of another officer in his placePrayers for direction to Revenue to file appeals against decision of ITATDirection to High Court to re-consider appointment of Special Judge-To reappoint the same prosecutor-Trial pending before Special Judge to be
E monitored by Supreme Court and to cancel bail of the two former Chief
Ministers-Held, Per Majority (Kapadia, J dissenting), the prayers sought
for in the writ petitions cannot be allowed and the writ petitions being
without merits are liable to be dismissed-Public Interest LitigationPrevention of Corruption Act, 1986-ss. 13(/)(e) and 13(2)-fncome Tax
F Act-s.260-A.
A large scale defalcation of public funds of crores of rupees in the
Department of Animal Husbandry in the State of Bihar came to light during
the tenure or respondent No. 5 as Chief Minister of Bihar. The petitioners,
who were Members of the Parliament, filed a writ petition in the Patna High
G Court. Another writ petition was filed in the Supreme Court. Consequently,
several cases were registered by the police and the investigation was
entrusted to the Central Bureau of Investigation. The Supreme Court directed
that the investigation would be monitored by a Division Bench of the Patna
High Court. The State Government was asked to assign adequate number of
H
742
...
RAJIV RANJAN SINGH 'LALAN' v. U.O.l.
743
Special Judges to deal with the cases expeditiously. Later a case under the A
provisions of the Prevention of Corruption Act was registered against
respondent No. 5, on the allegations that he, as Chief Minister of Bihar, had
acquired assets disproportionate to his known sources of income. Respondent
No. 4, the wife of respondent No. 5, who also became Chief Minister of Bihar
later, was also charge-sheeted in the said case for abetment u/s 109 IPC read
with ss.13(1)(e) and 13(2) of the Prevention of Corruption Act. The case was B
numbered as Special Case No. 5/1998 and was pending in the Court of Special
Judge, Patna.
The petitioners filed the present writ petitions as public interest
litigation alleging that certain income tax appeals of respondent nos. 4 and 5 C
were pending before the Income Tax Appellate Tribunal; the Member who was
hearing the appeals was sent on deputation; the Bench comprising new
Member decided the case in favour of respondent nos. 4 and 5 and the Revenue
did not file any further appeal in those matters; that when the Special Case
no.5/1998 pending before the Special Judge was at the final stage of hearing,
the Prosecutor was changed and another person who had no experience of D
conducting prosecution was appointed; that the Special Judge, CBI who was
hearing the fodder scam matters, was transferred and another Special Judge
was nominated, who was having a poor record and was not senior to be
appointed as a Special Judge. It was submitted that respondents no. 4 and 5
still wield influence and power and, therefore, the Supreme Court should E
monitor the trial pending before the Special Judge, Patna; and the bail granted
to them should be cancelled.
It was contended for respondent nos. 4 and 5 that filing of the writ
prtitions was a politically motivated move to malign them~ It was submitted
that both the petitioners were not in any way connected with case No, 5/1998 p
filed against respondent nos. 4 and 5; it was a criminal litigation exclusively
between respondent nos. 4 and 5 and the State, and in a case of this nature,
nobody else got any right to interfere specially by way of public interest
litigation. It was a!so submitted that the trial could not be conducted because
of the present public interest litigation.
G
Dismissing the writ petitions, the Court
HELD: (Per Balakrishnan, J)
I. I. The allegations made by the petitioners that there were serious
ir".'egularities in disposing of the income tax appeals of respondent nos. 4 and H
744
SUPREME COURT REPORTS (2006] SUPP. 4 S.C.R.
A 5 are not factually correct. The very foundation of the allegation is that the
then Member of the Appellate Tribunal was transferred from Patna to Delhi
at a time when he was hearing appeals is factually incorrect. It is also not
correct to say that appeals were disposed of by such a Member of the Tribunal
who was on the verge of retirement. The petitioners could not point out any
B procedural irregularity in the manner in which the appeals were disposed of.
A perusal of the affidavits, reports and various other papers shows that the
allegations made by the petitioners are not true. 1756-D-FI
1.2. As regards the petitioners' prayer that this Court should direct
the authorities to file appeal against the orders passed by IT AT in the cases
C of respondent nos. 4 and 5, suffice it to say that an appeal is a statutory remedy
available to the Department; and a third party, like the writ petitioners, cannot,
in a collateral proceedings like this, seek any remedy of writ of mandamus
directing the authorities to file appeals against the orders oflTAT. (756-F-GJ
1.3. Moreover, the petitioners could not point out anythmg to show that
D there were serious procedural irregularities on the part of the Department
in not filing the appeal. The Department had taken opinion of the Central
Board of Direct Taxes as well as the Ministry of Finance and the latter had in
turn sought the opinion of the Ministry of Law to the effect that no substantial
question of law arose out of the judgments of the ITA T in the cases of
respondent nos. 4 and 5 for filing appeals before the High Court and thus
E instructions were issued not to file any appeal. The petitioners have not made
any specific allegation that the decisions were taken at the behest of
respondent nos. 4 and 5 or any undue influence was exerted to take such
decisions. The allegations ir.ade by the petitioners are vague and indefinite.
Therefore, the prayer for Writ of Mandamus to direct respondent nos. 1 to 3
F to file appeal against the IT AT orders cannot be allowed and is rejected.
(756-C-D; G-H; 757-A-B)
2.1. Regarding the plea that the public prosecutor who was conducting
the case no. 5/98 against respondent nos. 4 and 5 was removed by the Director
of the CBI presumably under pressure from the accused, it may be seen that
G from the averments made in the counter-affidavit, it is clear that the said
prosecutor had completed the case and examined all the witnesses for the
prosecution as well as for the defence and he had also submitted his entire
arguments to the Special Judge. Therefore, the contention of the petitioners
that the prosecutor was purposely changed to give benefit to respondent nos.
4 and 5 is not correct. There is no allegation to prove that respondent nos. 4
H and 5 had in any way interfered with the appointment of the Public Prosecutor.
RAJIV RANJAN SINGH 'LALAN' v. U.0.1.
745
The petitioners could not produce any documents to show that the allegations . A
made in the original petitions were true. [759-D-E; 760-B-D[
2.2. In the instant case, the petitioners have approached this court by
filing this public interest litigation under Article 32 of the Constitution at
the time when the recording of prosecution evidence in case No. 5/1998 was
almost over and the trial of the case had reached the final stage. If at all, the B
petitioners had any grievance regarding the removal of the public prosecutor,
they should have approached the Special Judge or the High Court. It is already
noticed that the petitioners had no direct connection with this case. They were
absolutely strangers as regards the criminal cases against respondent nos.
4 and 5 which were pending before the Special Judge. This unnecessary C
interference in the criminal case may cause, some.times, damage to the
prosecution case and at times may cause serious prejudice to the accused
also. In any view of the matter, this sort of interference in the criminal
prosecution would only deny a fair trial to the accused. (761-F-H; 762-A)
Janata Dal v. ll.S. Chowdhary and Ors., [1992) 4 SCC 305, relied on. D
Ashok Kumar Pandey v. State of W.B., (2004) 3 SCC 349 and Union of
India and Ors. v. Sushi/ Kumar Modi and Ors., (1998) 8 SCC 661, referred
to.
3.1. So far as the allegation of the petitioners that the Special Judge E
who presently is dealing with the CBI cases at Patna was not properly
appointed by the High Court and another Judge who was eai"lier dealing with
this case was suddenly transferred to help respondent nos. 4 and 5, it may be
noticed, at the outset, that no such allegations have been made in the original
writ petition. The petitioners filed IA as Criminal Miscellaneous Petition nos. F
6589-6590 of 2005 wherein certain allegations have been made. Subsequent
to filing of these interim petitions, the original writ petition was not amended
and no prayer was incorporated in the relief portion as to whether the present
Special Judge is to be removed or not. [757-B-D)
3.2. The appointment of the Officer is not challenged by the petitioners · G
nor any pleadings made in the main writ petition. By filing a Criminal
Miscellaneous Application, the petitioners have made series of allegations
which are not borne out by any records. If at all, the petitioners had any
grievance regarding the appointment of any particular Officer, the proper
remedy was to approach the High Court and to bring the fact to the notice of
the Chief Justice. Since there is no material on record to shllW that there H
746
SUPREME COURT REPORTS [20061 SUPP. 4 S.C.R.
A was any illegality or serious infraction of any procedure in the appointment
of the present Special Judge and the appointment as such cannot be challenged
in a collateral proceedings and this Court cannot go into the question of
appointment of a Special Judge which is exclusively within the domain of the
High Court under Article 235 of the Constitution, the oral appeal of the
B petitioners for the change of the Presiding Officer of the Special Court cannot
be granted. (759-A-CI
4. As regards the prayer of the petitioners that the bail granted to
respondent nos. 4 and 5 is liable to be set aside, it may be mentioned that the
petitioners could not prove anything that these respondents have interfered
C in the course of justice and they misused the privilege of bail extended to
them. The petitioners have also no case that they are likely to flee from justice.
The petitioners have not made out any case for cancellation of their bail. The
prayers sought for in the Writ Petitions cannot be allowed and the writ petition
being without any merits is dismissed. (762-E-F(
0 PER DR LAKSHMANAN,J (CONCURRING):
1.1. As regards transfer of the earlier Member of the IT AT, dealing with
the appeals of respondents no. 4 and 5, the record shows that the President,
ITAT acceded to his request on compassionate grounds to remain in Delhi,
and it was not correct to say that he was shunted out of Patna. There is not an
E iota of truth in the allegation and all the averments made in the writ petitions
are completely base:ess. It is seen from the report submitted by the President,
ITAT on 9.3.2005 in this regard that the earlier Member IT AT had left India
without obtaining permission as required under the rules and he was
accordingly issued a show cause notice to explain about the acts of indiscipline.
F Insofar as appointment of the Member in his place is concerned, the President
has explained the position with regard to forming the Bench.
(768-B; G-H; 769-A-BJ
1.2. The prayer of the petitioner to direct the Government of India to
file appeals in the income-tax matters cannot at all be countenanced. The
G record discloses that the mat~er was fully considered and legal opinion was
sought by BCIT investigation, Patna and that the opinion of the ASG was
received stating that there was no substantial question of law for filing an
appeal and that the consideration of this aspect had been done properly and
independently and there have been no extraneous considerations. The
Government of India has taken into consideration the views of the Ministry of
H Law and Ministry of Finance to the effect that no substantial questions of law
.
'
..f
RAJIV RANJAN SINGH 'LALAN' v. U.0.1.
747
arise out of the judgments of the IT AT in the cases of respondent Nos. 4 and A
S for filing appeals before the High Court and instructions were issued that
appeals would not be filed in respect of those cases. (773-D; 774-A-B; E, F)
2. The appointment of lawyers/Prosecutors is the prerogative of the
Government in power and the prosecuting agency, and court has no role to
play. The petitioners are trying to find fault with every attempt and with every B
step taken. In cases like this the delay is inevitable. [773-B-C)
3.1. As regards the prayer of petitioners regarding appointment of the
Presiding Judge, Special Court, Patna, the records have been submitted by
the High Court in regard to the officers concerned including the present
incumbent. There is absolutely no adverse entry against him and that poor C
record if any is not the record of integrity and that no gradation has been
given to officers after 1997 onwards including the officer concerned. The
relevant service records of the officers concerned including the present
incumbent was placed before the Stanaing Committee which took into
consideration the fact that no allegation petition has been received against D
him. It was resolved that the officer be posted as Special Judge, CBI Fodder
scam cases at Patna. The said resolution was placed before the Full Court
which also approved the same. (771-E-F; 772-F-G)
3.2. The Standing Committee has taken a decision to appoint the officer
as Special Judge after scrutinizing the records, ACRs etc. in accordance with E
Articles 233 and 235 of the Constitution of India which is the prerogative
right of the Standing Committee and the High Court, and when a decision is
taken it is not for this Court to scrutinize the correctness of the decision
that too at the instance of third parties. (773-C-D)
4. In regard to the prayer for cancellation of the bail at the instance of F
the petitioners, the said request cannot at all be countenanced. The various
documents and annexures etc. filed in the writ petition indicate that respondent
Nos. 4 and Shave never interfered with the conduct of trial or with the IT
proceedings. It cannot be said that the delay is solely attributable to respondent
Nos. 4 and S. The delay is attributable to both the prosecution and the defence
and also to the Court. Therefore, respondent Nos. 4 and S cannot be held G
responsible for the delay. Besides, it cannot be a ground for cancellation of
bail when it is not proved that any of the bail conditions has been violated.
[770-B; E-G)
S. Monitoring of pending trial is subversion of criminal law as it stands
to mean that the Court behind the back of the accused is entering into a H
748
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
A dialogue with the investigating agency. Therefore, there can be no monitoring,
after the charge sheet is filed. 1768-A)
Union of India and Ors. v. Sushi/ Kumar Modi and Ors., ( 1998) 8 SCC
661, relied on.
6. Public interest litigation is meant for the benefit of the lost and lonely
B and those whose social backwardness is the reason for no access to the Court.
PILs are not meant to advance the political gain and also settle their scores
under the guise of a public interest litigation and to fight a legal battle. The
liberty of an accused cannot be taken away except in accordance with the
established procedure oflaw under the Constitution, criminal procedure and
C other cognate statutes. PIL is totally foreign to pending criminal proceedings.
(744-G-H; 775-A-B)
TN. Godavarman Thirumulpad {98) v. Union of India and Ors., (2006)
5 SCC 28; Janata Dal v. H.S. Chaudhary and Ors., (1992) 4 SCC 305; Dattaraj
Nathuji Thaware v. State of Maharashtra and Ors .. (2005) l SCC 590; Ashok
D Kumar Pandey v. State of WB., (2004) 3 SCC 349.and S.P. Gupta v. Union of
India and Anr., 11981) Supp SCC 87, referred to.
7. The records placed before the Court would only go to show that
respondent No. 4 had no hand in any of these matters whether in the
appointment of judges or in the change of the prosecutor or on the decision
E not to file an appeal in the income tax cases. (775-BJ
PER KAPADIA, J ( Dissenting)
1.1. True value of a decision lies in its propriety and not in the decision
being right or wrong. In the instant case, the Court is concerned not with the
merits of the allegations but with the decision-making process, be it in the
F posting of the present incumbent as Special Judge, CBI, Patna or in the matter
of the Revenue Department not moving in appeal to the High Court under
Section 260A of the Income Tax Act, 1961 despite there being substantial
questions of law arising from the impugned judgment of the Tribunal.
(782-G-H; 794-C(
G
t.2. It has to be ascertained in the present case whether the decision of
the Government in not preferring any appeal to the High Court under Section
260A of the l.T. Act constituted inaction on the part of the Revenue
Department. This question needs to be answered not in an abstract but having
regard to position in law and having regard to the facts of the present case.
1785-C-DI
H
Inland Revenue Commissioners v. National Federation of Seif-employed
RAJIV RANJAN SINGH 'LALAN' v. U.0.1.
749
and Small Business Ltd, (1982) Appeal Cases 617, referred to.
A
1.3. While allowing the appeal of the assessee the Tribunal held that
the case involved highly intricate issues involving interpretation of sections
131, 13l(IA), 273-A and 174/148 of the Income Tax Act; that, these issues
were extremely difficult to understand; that, but for the assistance of the
advocates on both sides it was difficult to adjudicate such disputes. f\.t the same B
time the Tribunal without any basis castigated the officers of the Department
including the Commissioner (Appeals) saying that rampant additions were
made to destroy the case of the assessees and to destroy the political career
of respondent no.5. Similarly, the Tribunal has castigated the higher officers
of the Department saying that they were biased and that they had acted at the
behest of the Centre in clubbing the income of respondent no.4 with that of C
respondent no.5 who was going through political crisis. This Court has noticed
in number of cases that even an innocuous statement of the tribunal against
the Revenue Officers is challenged before the higher courts on the ground
that such observations are aspersions against the officers who have performed
their duty and that they need to be expunged. Surprisingly, in this particular D
case till today no such appeal has been filed under Section 260A of the l.T.
Act. (787-B-D; 788-C-D)
1.4. There is no basis given in the impugned decision of the Tribunal
for making such strong observations against the officers of the Revenue.
Although the High Court under Section 260A of the l.T. Act would not have
enquired into the sufficiency of materials or substituted its judgment for that E
of the Tribunal in regard to facts, nevertheless, if the conclusion drawn by
the Tribunal is without any basis or based on irrelevant considerations then
the High Court was required to interfere under Section 260A. (787-D-E)
1.5. Besides, the judgment of the jurisdictional tribunal on the scope
and interpretation of the above sections which the Tribunal itself says involve F
complex legal issues, is binding on assessing officers and the appellate
authority within that jurisdiction. If so, one fails to understand why the
Department has not moved in appeal under Section 260A of the I.T. Act. In
the circumstances of this case, Union of India should apply its mind afresh
and take its decision keeping in mind the factors referred to herei~
7
~~~~~~) G
2. It is true that PIL is not maintainable to probe or enquire into the
returns of another taxpayer except in special circumstances. However, when
scams take place, accusations of disproportionate assets are required to be
looked into. The source of the funds plays a crucial role in investigations by
CBI in matters involving misappropriation of public funds. Departments have H
750
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
A to work in tandem. The evidentiary value of the collected material in the
criminal trial is a matter different from the collection of information by the
officers of the Rev1!nue Department. The present petitions are filed on the
alleged acts of misfeasance. The test which one has to apply to decide the
maintainability of the PIL concerns sufficiency of the petitioner's interest.
Under this test it is necessary to consider the subject matter to which the
B PIL relates. It is wrong in law for the court to judge the applicant's interest
without looking at the subject matter of his complaint. If the petitioner shows
failure of public duty, the court would be in error in dismissing his PIL.
(783-8-C; 787-F; 788-A)
Jmwa Dal v. H.S. Chaudhary and Ors., 1199214 SCC 305; A.R. Antulay
C v. Ramadas Sriniwas Nayak and Anr., (19841 2 SCC 500; Union of India v.
Sushi/ Kumar Modi and Ors., 119981 8 SCC 661; M.C Mehta v. Union of
India and Others (Taj Trapezium Matter), 120031 8 SCC 696; T.N.
Godavarman Thirumulpad (Y8) v. Union of India and Ors., 1200615 SCC 28;
Dattaraj Nathuji Thaware v. State of Maharashtra and Ors., 120051 l SCC
D 590; State of Bihar and Anr. v. Ranchi Zila Samta Party and Anr., 11996) 3
SCC 682 and Gurpal Singh v. State of Punjab and Ors .. 12005) 5 SCC 136,
referred to.
3.1. The procedure adopted at the time of posting the present incumbent
as Special Judge, CBI, Patna (Fodder Scam Cases), needs to be relooked by
E the Patna High Court. Institutional autonomy of the High Court on its
administrative side under Article 233 and Article 235 is a well-known
concept. It is based on public trust and confidence. Existence of the power, as
a concept, is different from exercise of power. Promotions and posting of
judicial officers fall within its domain or. its administrative side. At the same
time it is important to note that choice of the candidate falls in the domain of
F public law and, therefore, that choice has to be exercised on some standard,
failing which judicial review steps in. It is important to bear in mind that in
the matter of economic scams, it is the economic interest of the country which
is at stake. These cases are highly complicated in which complicated questions
are involved and, therefore, posting plays a vical role.
G
1788-H; 789-A-B; 793-E)
3.2 It is clear that while remarks of Inspecting Judge in the case of
other officers were duly updated when they were placed before the Committee
of the High Court, there is no gradation/categorisation of the confidential
reports of the present incumbent by the Inspecting Judge of the High Court
H particularly after he became A.D.J. [791-F-H; 792-AI
RAJIV RANJAN SINGH 'LALAN' v. U.0.1. [BALAKRISHNAN, J.]
751
3.3. It seems that the procedure followed by the High Court in the A
meeting on 22.06.0S has lost sight of the above criteria. In the circumstances,
a request is being made to the Chief Justice of the Patna High Court to convene
an urgent meeting of Administrative Judges and complete the exercise of
giving appropriate gradation/categorization after looking at the judgments
and orders delivered by the concerned judge, and to have a fresh look at the
evaluation in the case of posting of the Officer concerned as Special Judge B
for C.B.I. (Fodder Scam Cases) at Patna, vide Minutes of Meeting dated
22.06.2005. It is made clear that this is just a request to the High Court and
not a direction so that the evaluation standards ·are commonly applied to all
the three candidates. (793-F-Gf
c
CRIMINAL ORIGINAL JURISDICTION : Writ Petition (Criminal) Nos.
197-198 of2004.
(Under Article 32 of the Constitution of India.)
Mukul Rohatgi, Kailash Vasudev, Gopal Singh and Saurarb Kirpal for D
the Appellants.
G.E. Vahanvati, S.G. Mohan Parasaran, A.S.G., Ram Jethmalani, P.H.
Parekh, E.R. Kumar, Shakun Sharma, P.R. Mala, Michale Peter, Chitranjan (for
P.H. Parekh & Co.), B.V. Balaram Das, Sandhya Goswami, Hrishikesh Baruah,
Devdatt Kamat, Chinmoy Sharma, and Suruchi Suri for (P. Parmeswaran) for E
the Respondents.
The Judgment of the Court was delivered by
K.G. BALAKRISHNAN, J. These writ petitions are filed as Public
Interest Litigation by the two petitioners herein who were Members of the F
Parliament at the time of filing the petitions. Respondent nos. 4 and 5 were
formerly Chief Ministers of the State of Bihar. It is alleged by the petitioners
that they filed writ petitions· before the High Court of Patna alleging largescale defalcation of public funds and falsification of accounts involving
hundreds of crores of rupees in the Department of Animal Husbandary in the
State of Bihar and pursuant to these allegations, several cases were registered G
by the Police and investigation of these cases was later handed over to the
Central Bureau of Investigation. In an earlier petition filed before this Court
on 19.3.1996, this Court directed that the investigation shall be monitored by
the Division Bench of the Patna High Court anq in that Order, it was indicated
that the CBI Officers entrusted with the investigation shall inform the Chief H
752
SUPREME COURT REPOR rs [2006) SUPP. 4 S.C.R.
A Justice of Patna High Court from time to time of the progress made in the
investigation and if they needed any directions in the matter of conducting
the investigation, obtain them from him and it was also said that the learned
Chief Justice may either post the matter for directions before a Bench presided
over by him or constitute any other appropriate Bench. It was also directed
B that the State Government shall co-operate in assigning adequate number of
Special judges to deal with the cases expeditiously so that no evidence may
be lost.
The petitioners allege that consequent upon change of the Government
in the Centre, attempts have been made to delay and interfere with the judicial
C process. It is alleged that the public prosecutors who were handling the cases
were removed and to protect the interests of respondent nos. 4 and 5,
convenient prosecutor was appointed.
The respondent no. 5 is an accused in a case registered under the
Prevention of Corruption Act, 1988. The case is filed pursuant to the FIR
D registered as no. R.C. 5[A] 498/AHD-Pat dated 19.8.1998. The allegation in
that case is that respondent no. 5 as Chief Minister of Bihar between 1990
to 1996 had acquired assets disproportionate to his known sources of income.
Chargesheet was filed in the Court of the Special Judge, CBI, Patna on
4.4.2000 under Section 13( I )(e) of the Prevention of the Corruption Act, 1988.
Respondent no. 4 also was charge sheeted in the same case for abetment
E under Section I 09 of the IPC read with Section 13(2) and Section 13( I)( e) of
the Prevention of Corruption Act, 1988. This case has been re-numbered as
Special Case No. 5/1998 and is pending trial in the Court of the Special Judge,
CBI, Patna. The petitioners allege that certain income tax cases of respondent
nos. 4 and 5 were pending before the Income Tax Appellate Tribunal (ITA T)
F and one Mr. D.K. Tyagi who was a member of the IT AT had been hearing
those cases and that respondent nos. 4 and 5 found it difficult to pursue the
hearings before the said IT AT member and hence at their influence Mr. Tyagi
was sent on deputation and he was replaced by one Mr. Mohanaranjan who
was on the verge of retirement. It is further alleged that the new member
alongwith another member heard these cases within two weeks and orders
G were pronounced in favour of respondent nos. 4 and 5. It is also alleged that
respondent no. 3, namely, the Central Board of Direct Taxes did not prefer
appeal in these cases though the decision went against the revenue. This,
according to the petitioners, was to help respondent nos. 4 and 5 in the cases
filed against them based on the allegation that they acquired assets
H disproportionate to their known sources of income.
RAJIV RANJAN SINGH 'LALAN' v. U.0.1. [BALAKRISHNAN, J.]
753
The petitioners have also alleged that the Special Case No. 5/1998 A
pending before the Special Judge, CBI was at the final stage of hearing and
that the Director, CBI, presumably under pressure from the accused changed
the prosecutor and appointed one Shri Oma Shankar Singh who was only a
retired Deputy Superintendent of Delhi Police and had no experience of
conducting the prosecution. According to the prosecution, this was done at B
the fag end of the prosecution case to help the accused. The petitioners have
made allegations against respondents I to 3 also that they were acting
arbitrarily and interfering in the judicial process to benefit the respondent nos.
4 and 5. The petitioners have alleged that respondent nos. 4 and 5 obtained
stay of proceedings of the case pending before the Special Judge from this
Court suppressing some material facts. It is alleged that the respondent nos. C
4 and 5 still wield influence and power and, therefore, this Court should
monitor the trial of the case pending before the Special Judge, CBI, at Patna.
In these Writ Petitions, the petitioners have prayed mainly four reliefs.
TJle first relief prayed is to issue an appropriate writ, order or direction
monitor;ng the conduct of the trials relating to fodder scam cases proceedings D
against respondent nos. 4 and 5 in the States of Bihar & State of Jharkhand.
The second prayer is to appoint the very same prosecutor who had been
conducting prosecution earlier and to direct the High Court to see that no
prosecutor or CBI Officer attached with the investigation and trial of the case
should be removed, harassed or victimized for discharging their duties. The E
petitioners have also prayed that at least one inspector be provided for each
fodder case. The petitioners have also prayed for cancellation of bail granted
to respondent nos. 4 and 5. Petitioners have further prayed for a direction to
respondents 1 to 3 to file an appeal against the orders passed by the !TAT.
During the pendency or" these Writ Petitions, the Counsel for the p
petitioners alleged that the Special Judge who was trying the case involving
respondent nos. 4 and 5, was being replaced by another Special Judge. The
allegation was that one Shri Yogender Prasad was the CBI Special Judge and
he was being replaced by one Shri Muni Lal Paswan and this according to
the petitioners was deliberately done to help the respondent nos. 4 and 5. In
view of the allegations made by the petitioners, this Court on 1.8.2005 directed G
the Registrar General of the Patna High Court to send details and files as to
when Judge Shri Y ogender Prasad was promoted as a District Judge and all
papers regarding posting of the subsequent officer Shri Muni Lal Paswan. As
regards the posting of Shri Muni Lal Paswan as a Special Judge, this Court
again passed an Order on 26.10.2005 and the Registrar of the High Court was H
754
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
A directed to give further clarification in the matter. The Registrar General of the
High Court of Patna appean:d in person before us and filed an affidavit giving
out the details leading to the decision of the Standing Committee of the High
Court to post Shri Muni Lal Paswan as a Special Judge, CBI case Patna.
Jn view of the allegations made by the petitioners in respect of the
B cases pending before the IT AT, the President of the IT AT was directed to
send all papers pertaining to the constitution of the Bench of Shri P.
Mohanarajan and Shri M.K. Sarkar which disposed of the various appeals
pending before the IT AT. The President of the IT AT has submitted a report
and also produced relevant papers before us.
c
D
In view of the allegation made by the petitioners regarding the
appointment of a new prosecutor in place of earlier prosecutor, this Court
directed the 3rd respondent to produce the entire files including the notations
pertaining to the appointment of Shri Oma Shankar Shanna as Prosecutor.
Refuting the atlegations contained in the Writ Petition, detailed counteraffidavits have been filed by the respondents. In the joint counter-affidavit
of respondent nos. 4 and 5, they have alleged that the writ petitions contain
vague and indefinite allegations and they are made with political motive to
satisfy their personal grudge and that this is an abuse of the process of the
Court. The respondents have alleged that the Public Interest Litigation shall
E not be used for private or political motives or for other consideration. It is
also alleged that Special Case no. 5/98 pending before the Special Judge is
a case registered under Sections 13(2) and 13(1) of the Prevention of Corruption
Act and it has nothing to do with the 'fodder scam' case. The various
allegations made in the Writ Petitions have been denied specifically.
F
We heard the learned Senior Counsel Shri Mukul Rohtagi for the
petitioner and Solicitor General appearing for respondents I to 3 and also the
learned counsel for respondent nos. 4 and 5. At the time of the arguments,
the learned Counsel for the petitioners submitted that the petitioners in the
present facts and circumstances of the case only pray for appointment of an
G appropriate prosecutor to conduct the case pending before the Special Judge
and that the bail of the respon'.ient nos. 4 and 5 be cancelled and Respondent
no. 3 be directed to file appeals against the orders passed by the IT AT. The
petitioners also submitted arguments to the effect that the appointment of the
present Special Judge was not done properly. No specific prayer was made
by the petitioners to change the Presiding Officer. They, however, submitted
H a request that High Court may be directed to reconsider the appointment and
RAJIV RANJAN SINGH 'LALAN' v. U.0.1. [BALAKRISHNAN, J.)
755
posting of Shri Muni Lal Paswan as a Special Judge.
A
We shall first consider the prayer of the petitioners as to whether any
irregularities have been committed in the matter of disposal of cases against
respondent nos. 4 and 5 by the Income Tax Appellate Tribunal, Patna. The
petitioners have alleged that Shri D.K. Tyagi, who had been hearing the cases
of respondent nos. 4 and 5 and proving to be difficult during the course of B
the hearing, was curiously sent on deputation and was replaced by Shri
Mohanarajan, who was on the verge of the retirement, to head the Tribunal.
It is further alleged that Shri Mohanarajan picked up only two cases pertaining
to respondent nos. 4 and 5 even though the matter had been heard fully by
another bench, and within two weeks, the cases were heard and allowed in C
favour of the assessees namely respondent nos. 4 and 5, and that he had no
backgrolmd of the case and had not disposed of any other matter. The
petitioners alleged that after the disposal of these cases by the Tribunal,
steps were not taken to file appeal against these orders and that was done
at the instance of respondent nos. 4 and 5.
D
The entire allegations made by the petitioners are denied. The President
of the Income Tax Appellate Tribunal submitted a report regarding the manner
in which income tax cases of respondent nos. 4 and 5 were disposed of by
the Tribunal. The President has stated that he took over as the President of
IT AT on 31.10.2003 and at that time a petition filed by Respondent no. 5 for
transfer of cases from Patna to Delhi was pending. The Department after E
considering the legal aspects declined to transfer the cases of respondent no.
5 to Delhi. It was suggested and noted on the files "it may perhaps be
worthwhile to consider constituting a Special Bench for early disposal of
these appeals". Shri D.K. Tyagi sent a representation on 12.1.2004 praying
that he may be transferred to Delhi as his mother was 80 years old and with p
deteriorating health and that he was anxious to arrange marriage of his
daughter and his son was studying at Delhi. There were some other
developments also as Shri D.K. Tyagi had left India without permission and
a show-cause notice was issued to him. He filed an explanation and came over
to Delhi to personally explain the things and he was allowed to remain at Delhi
for some period and the President of the IT AT, with a view to inculcate judicial G
discipline, decorum and proper behaviour from the Bench, made Shri Tyagi
to sit in Delhi Bench of the IT AT alongwith the seniormost Accountant
Member. There were also other circumstances whereby Shri. Tyagi wanted his
transfer from Patna to avoid recurrence of another incident in view of the
repeated confrontations with the Bar. It was under these circumstances Shri H
756
SUPREME COURT REPORTS [2006] SUPP. 4 S.C.R.
A Mohanarajan was directed to camp at Patna in June, 2004. Another member
Shri Aggarwal also expressed his inability to camp at Patna. Shri P. Mohanarajan
alongwith Shri M.K. Sarkar who was a senior member of the Tribunal, dealt
with the cases of respondent nos. 4 and 5. The President has also refuted an
allegation that Shri Sarkar was selected to camp at Delhi only for a short
B period to dispose of this case. He has brought to our notice that the Bench
disposed of 11 appeals of respondent no. 5 and several other cases and that
136 cases were disposed of during that period and the list of such cases and
details are given at Annexure I.
As regards non-filing of the appeals against the order passed by IT AT,
C the Chief Commissioner of Income Tax-VIIJ in New Delhi had filed affidavit
wherein it is stated that the question was referred to the Central Board of
Direct Taxes for consideration and he had sought opinion from the Ministry
of Law. The Central Board of Direct Taxes and the Ministry of Finance
obtained the opinion of the Ministry of Law to the effect that no substantial
questions of law arose out of the judgments of the IT AT in the cases of
D respondent nos. 4 and 5 for filing appeals before the High Court and thus
instructions were issued not to appeal against these cases.
The allegations made by the petitioners that there were serious
irregularities in disposing of the cases of respondent nos. 4 and 5 are not
E factually correct. The very foundation of the allegation is that Shri Tyagi,
member of the Appellate Tribunal was transferred from Patna to Delhi at a time
when he was hearing appeals is factually incorrect. It is also not correct to
say that appeals were disposed of by the member of the Tribunal who was
on the verge of retirement. The petitioners could not point out any procedural
irregularity in the manner in which these appeals were disposed of. After
F going through the affidavits and reports and various other papers, we are
satisfied that the allegations made by the petitioners are not true. The
petitioners have prayed that this Court should direct the authorities to file
appeal against the orders passed by IT AT in the cases of respondent nos.
4 and 5. In a collateral proceedings like this, the petitioner cannot seek any
G remedy of Writ of Mandamus directing the authorities to file appeals against
such orders.