In a latest, landmark and extremely laudable decision, the Bar Council of India (BCI) which represents all the lawyers of India and lays down rules and regulations which all lawyers have to follow has clearly, courageously and convincingly endorsed in no uncertain terms the Bobde Panel Report which was prepared by the second most senior Judge of Supreme Court – Justice Sharad A Bobde along with two eminent women Judges of Supreme Court – Justice Indu Malhotra and Justice Indira Banerjee. The Bobde Panel Report after examining the charges in detail had found no substance in the allegations made by the woman complainant against the CJI Ranjan Gogoi and therefore her complaint was rejected. The incumbent CJI Ranjan Gogoi thus stands exonerated!

Needless to say, the Bar Council of India (BCI) has very rightly minced no words in directly appealing to the members of the legal fraternity, the Judges and the people of this country to rise to the occasion and come forward, get united, and be vocal to discourage negative forces which are all out to weaken the most sacred institution of judiciary! The Bar Council of India has made this most fervent and most commendable plea in the backdrop of the complaint of sexual harassment charges against CJI Ranjan Gogoi and everything that happened in its aftermath bringing judiciary in limelight in a bad way, saying rightly that judiciary is the only ray of hope for the poor people of the country. The Bar Council of India (BCI) certainly deserves to be complimented and congratulated for daring to take the bold decision to stand by the incumbent CJI Ranjan Gogoi who ever since he took oath as office has demonstrated extraordinary determination to reform the judiciary and ensure that all vacant posts for Judges in different courts are filled up at the earliest and he suo motu took action on it as we all know very well! Yet, the CJI has faced unwarranted and unbecoming criticism from a powerful section of the media without any strong basis!

To be sure, the statement from Bar Council of India says that a common advocate always feels that his first duty is to protect the institution of judiciary and that bar cannot tolerate any attempt that tears at reputation of courts of law and damages and demolishes their authority. Absolutely right! Moreover, this CJI has never once faced any iota of any sort of allegation against him of any kind and has rather himself always shown the determination to act against corruption as we saw while in his stint as Chief Justice of Punjab and Haryana High Court he ensured that a Judge involved in corruption was made to resign!

Not just this, he took all the High Courts to task right on assuming office for not filling Judges vacancies and warned them that if they fail to fill up the vacancies in a fixed time, the power of appointing Judges would be taken away from them and given to either UPSC or the Supreme Court will itself take upon itself this onerous task! This resulted in vacancies being released in huge numbers in different states and for first time in UP we saw HJS vacancies being notified twice in a year which is a record by itself! Should this not be appreciated and applauded?

Earlier we saw how vacancies came out after 2 or 3 years and in case of UPPCSJ no vacancies came out from 2007 to 2012 that is for full five years! If CJI has vowed that now this will not go on like this, should this not be appreciated or should here also question marks be raised on CJI? If I fail to clear Judges exam as I have till now then I must have the guts to admit that I have not worked hard enough instead of finding fault in CJI or in any other person and questioning the fairness of the system without any basis whatsoever! If there is one CJI whom I hold in highest esteem it is none other than this CJI Ranjan Gogoi because he has shown the urge to do what no other CJI has ever at least to the best of my knowledge ever dared to do in filling up Judges vacancies not just in Supreme Court or High Court but even in lower courts also by taking suo motu note of it and asking all High Courts to start filling up vacancies within a time limit and setting clear deadlines for it!

It is this CJI Ranjan Gogoi who inspite of qualifying for prestigious Civil Services exam opted for judiciary as he felt it to be more sacred for him. Similarly it is this CJI who had left his roaring practice in Guwahati High Court to take up Judgeship knowing it fully well that Judges get very meager pay but as Judges get more reputation, he opted for it! His whole life is an inspiration for others to follow but in one fell stroke all this has been laid to tatters which has certainly shattered him yet he has managed to control his emotions and is still discharging his duties most commendably! This alone explains why I wrote very rightly in heading in my earlier articles that, “Even God Cannot Shake My Faith In CJI Ranjan Gogoi” and “My Unflinching Faith In CJI Stands Fully Vindicated Now”!

For me, character is always more important than reputation. This is because reputation is “what people think you are” and character is “what actually you are” and “which only you yourself know that”! That is why it is rightly said that, “When you lose your reputation, you fall in the eyes of others but when you lose your character, you fall in your own eyes”!

Complaint Against CJI Is Fishy

Truth be told, while smelling foul in the modalities followed by the complainant in filing the complaint, BCI says that on examination of the complaint and the annexures and the way facts have been narrated by the complainant in her complaint, and the manner she claims to have recorded everything in her mobile while at police station, and the way she has been dealing with the police, the Courts, CBI, IB and everyone is fishy from every angle! How can this be dismissed lightly? It also says that Indians are wise enough to understand the dirty game to spoil the dignity of country’s judicial system and says further that there is now realization amongst the Indian masses that there is some backing behind the complaint against CJI and that complainant is not a “simple lady”! Which sane person can ever deny this?

To say the least, the BCI also said that, “If you examine the complaint and the annexures and see the way facts are narrated; the manner in which she claims to have recorded everything in her mobile while at police station, and the way she has been dealing with police, the Courts, CBI, IB, everyone, if one analyses these things carefully, you will find something fishy”. This observation is not made by some single, petty individual like me or anyone else but this observation has come from none other than the Bar Council of India! Will critics of CJI now question this also?

Nothing Wrong With Justice Bobde Report

It is most heartening to read in the web portal “LiveLaw” what all has been stated in detail by the BCI for which it too certainly deserves to be complimented and congratulated for the common person would not have come to know all this had it not been published by them in their website! I too have gathered most of my information from this website! BCI says in no uncertain terms that there is nothing wrong with the report of the in-house committee which has given clean chit to the CJI and that its decision is “just and proper” as it has not found any merit in allegations against the CJI.

It also says that complainant was not happy with anyone after Justice Gogoi, she started blaming and commenting against Justice NV Ramana that he favoured Justice Gogoi [being close to him] due to which Justice Ramana had to recuse himself from the case after which two very noble, fair, polite and soft spoken lady Judges were included in the in-house panel. Not stopping here she still continued raising questions and did not attend the proceedings till the end and left it mid way while casting aspersions on the fairness of the proceedings itself! How can this be condoned or justified under any circumstances?

To put it succinctly, while making a humble request to the members of the Bar, it says that Bar is duty bound to protect the democracy and protect the independence of judiciary and should desist from commenting on and criticizing each and every step of the institution of judiciary and the authorities. It makes also a request equally to the senior and other advocates of Supreme Court of India and of all the High Courts and to entire legal fraternity to stand united and fight the negative elements that destroy the credibility of institution of judiciary.

Justice Bobde A Man Of Nice Behaviour

Of course, Bar Council of India is also not happy with the way complainant has made allegations of “unfairness” against Justice Bobde Committee and says that the members of the Supreme Court and those aware of the functions of the Supreme Court know about the politeness and the nice behavior of Justice Bobde. It says that Justice Bobde is a man who always smiles and is never angry and same is true about other two lady Judges on the panel. Can anyone ever deny or dispute this? Certainly not!

As it turned out, the BCI said that, “The members who practice in Supreme Court and those who are aware of the functionings of Supreme Court are fully aware of the politeness and nice behaviour of Justice Bobde, he is a man who always smiles, we have never seen him angry; same is the case with the other two lady judges (Mrs Justice Indira Banerjee and Mrs Justice Indu Malhotra). But the complainant opted to make allegations of unfairness even against this Committee and refused to appear before this panel.” This is so strange and perhaps most baffling! This alone explains why BCI further goes on to state that, “We were of the considered opinion that the Committee should proceed ahead and the inquiry should be completed at the earliest. This could be called an attempt to scandalise the Institution. It is due to this reason that we appreciate the procedure adopted by the Committee.” There can be no denying it!

Procedure Adopted By Committee Proper And Fair

No doubt, BCI rightly says that Committee has taken the proper decision after examining the material and everything before it carefully and no one should doubt the decision of the Committee which would send a wrong signal and there would be no end to the malicious complaints against the respectable authorities discharging important functions. It says that complainant, as per her own story, was at police station for quite long time and there she demanded no legal help nor felt need for videography or audio-recording and was quite comfortable but surprisingly before the panel of three Judges of the Supreme Court, which included two ladies, the complainant allegedly felt nervous and felt the need for audio and video recording. It pointed out that, “Even the proceedings of Courts, or in camera proceedings held in chambers of Judicial officers or Hon’ble Judges are not Video-graphed. Therefore, there is nothing wrong in the procedure adopted by the Committee in this particular case. Why there should be some deviation in this special case?”

Bluntly put, the BCI sought to send an unmistakable message that, “Those who love this Institution and whose livelihood is attached to it, those who love the Constitution and our democracy, will never tolerate disrespect of our Supreme Court, High Court or our Judges by anybody.” It also made it clear that it fully respects the opinions of Justice DY Chandrachud but all those concept and suggestions expressed by him for providing liberties and legal assistance to complainant are for innocent, ignorant and helpless complainants and not for a litigant, who is apparently trying to malign the highest institution. Further, BCI said that, “There was, thus in our opinion, in this case, no need to include any other outsider or of any assistance of any Lawyer when the lady boldly came out and refused to participate in the inquiry. We are sure that Hon’ble Mr Justice Chandrachud will also agree with our view.”

End The Unfounded Controversy

As things stood, BCI said that instead of filing an FIR, Complainant had lodged her complaint with the Judges of the Supreme Court and had herself opted for the same and now that in-house committee has decided the matter, there is no justification on commenting over it or criticizing it and there should be an end to this “unfounded controversy”.

Judges Themselves Responsible For Such Unfortunate Situation

As anticipated, BCI rightly says that judiciary is itself responsible for the culture of “malicious complaints” by encouraging them. It says further that some of the totally “absurd, sentimental and reckless verdicts” of the Judges of the Supreme Court has resulted in lodging of such complaints frequently and expects practicality from Judges in future.

Going forward, BCI also gave a note of advice to Judges saying said that, “The oral testimony of the prosecutrix is enough to convict under Section 354 or 376 IPC,” Why? We are not in 18th century, that one can presume that a female will never make such allegations to falsely implicate her enemies. We have great respect for our women. But time has changed, we must keep in mind. Our Judges are expected to be practical now, they should think of common man and other respectable citizen also while deciding or dealing with such cases. They should not be guided by the sentiment or presumptions only. Always think that like 498A IPC, such cases of false implications have now become very common/very easy/rampant.”

Hope That Our Judges Will Lay Down Some Law Soon

To put things in perspective, the BCI said that, “Bar is hopeful that our Judges would now realize the problems, the mental and physical agony and harassments of the common men. So long our traditional Laws, Evidence Act were properly applied by our Law Courts, we found 90% cases resulting in acquittals; but, when our Honourable, Learned, Experienced, Knowledgeable Judges started keeping the settled principles of Evidence Act in waste paper boxes, the incidents of false implications started increasing and today we have reached to this situation.”

Limitation

Be it noted, the BCI also rightly suggested that, “When Indian Judiciary and our Legislature are treating such offences of Section 354 or 376 I.P.C. very serious, then why should not there be some period of limitation for reporting such offences? If some delay is there in lodging a case of murder, it is viewed with doubt, then why should the case of 354 or 376 I.P.C. could be taken and accepted so casually, without considering the delay factor? The delay normally very much proves and establishes that the so called prosecutrix was/is either a liar or was a consenting party. And after sometimes, when the situation changes or for blackmailing, complaints are lodged.”

Moving on, the BCI also then rightly laments that, “But our Judges have made this most vital factor of delay in such cases totally meaningless and redundant. Is it not against the set principles of our Criminal Jurisprudence? If such cases are not reported immediately, the benefit of doubt should go to the accused. What is the sense in entertaining such cases reported after several days, several weeks, several months or even for several years of alleged occurrence/story?” Also, it rightly urges that, “This is the high time, the Parliament and our Supreme Court are required to apply their mind over this important factor in the changed social scenario and degeneration of moral values.”

Appeals To Members Of Bar And Common People

What’s more, the BCI requests the members of the Bar to drop this episode from their minds and gossiping as it is causing serious harm to the institution of judiciary. Manan Kumar Mishra who is Chairman of Bar Council of India rightly urges that, “I request the members of the Bar to drop this episode from their minds and gossiping; it is causing serious harm to the Institution; one should imagine the mental agony suffered by a respectable man because of someone’s conspiracy to malign his image and/or to lay so much of undue pressure upon him.” It says candidly that, “It is the duty of the entire Legal fraternity to save and protect the institution on such occasion of crisis.” It also says explicitly that, “It is sure that not only the members of the Bar but every sensible citizen of the country will agree with the views expressed by the apex body of advocates, and will stand with the highest institution of the justice. The statement of BCI reads: “We are to save our Constitution and the Democracy. And for that purpose, the independence of the Judiciary, creation of a fearless atmosphere for the smooth discharge of functions by our Judges, would be first and foremost necessity.”

On a concluding note, it has to be said without any caveats that the BCI deserves certainly to be complimented, commended and congratulated wholeheartedly for taking such a balanced, principled and determined decision of fully endorsing the Justice Bobde panel report and also for reposing unflinching faith in the incumbent CJI Ranjan Gogoi who has always enjoyed an unblemished reputation and who never believes in giving out-of-turn hearing to even senior advocates and who believes that all advocates must adhere to rules and procedure while arguing cases and should not try to rush cases just because they are senior! BCI too feels that there is no substance in the allegations made by the complainant against the CJI Ranjan Ggoi! History will always judge BCI very lavishly on this score! Eminent and senior lawyers like Harish Salve too have posed their full faith in CJI Ranjan Gogoi and so have lawyer-turned-politicians like our Finance Minister Arun Jaitley and many others! Very rightly so!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.

In a fresh and latest development, the Supreme Court on May 6, 2019 has in a latest, landmark and laudable judgment titled M/s Gati Limited Vs. T. Nagarajan Piramiajee & Anr. in Criminal Appeal No. 870 of 2019 [Arising out of SLP (Cri.) No. 6677 of 2018] reiterated as it has several times in the past that successive bail applications filed by an accused should be placed before the same Judge who had refused bail in the first instance, unless that Judge is not available. If that Judge is not available who had refused bail at the first instance then it can be placed before some different Judge. Both the litigants and also all the Judges must always keep this key point in mind on such cases. There can be no denying or disputing it!

To start with, this notable judgment begins by first and foremost observing in para 2 that, “This appeal is filed questioning the order dated 25.07.2018 passed by the Madurai Bench of the Madras High Court in Cri. O.P. (MD) No. 9348 of 2018 passed by the Madurai Bench of the Madras High Court in Cri. O.P. (MD) No. 9348 of 2018 granting anticipatory bail in favour of Respondent No. 1.”

To recapitulate, it is then pointed out in para 3 that, “Respondent No. 1 is the accused (hereinafter “the accused”) in Crime No. 364 of 2017 registered at SIPCOT Police Station, District Thoothukudi, Tamil Nadu for the offences punishable under Sections 420, 465, 467, 468 and 472 of the Indian Penal Code (for short “the IPC”). The allegations against the accused as found in the First Information Report (FIR) are that he had furnished two forged Bank Guarantees each amounting to Rs. 5,00,00,000/- (Rupees Five Crores) to the Appellant in lieu of the services of the Appellant. Initially, the FIR was registered for milder offences. However, the High Court passed an order directing the police to alter the offences suitably, and accordingly, the FIR was altered by adding Sections 467, 468 and 472 of the IPC. The accused was absconding during that time. The High Court directed the police to arrest him and report to the Court by 22.12.2017. Despite the same, the accused was not arrested. Ultimately, on 02.01.2018, he filed an application for anticipatory bail before the High Court as Cri. O.P. (MD) No. 288 of 2017 in the first instance. The application came to be dismissed by the High Court on 09.04.2018. Prior to the disposal of the said application by the High Court, the accused had approached this Court in SLP (Cri.) Diary No. 7830 of 2018 questioning the order of the High Court directing alteration of sections in the FIR and the same had been dismissed by this Court with the specific direction that the accused was at liberty to surrender before the Trial Court and to obtain regular bail. Despite the said order of this Court, the accused subsequently pressed his anticipatory bail application before the High Court filed as Cri. O.P. (MD) No. 288 of 2017 which, as mentioned supra, came to be dismissed by the High Court. The said order of the rejection of the application for anticipatory bail by the High Court was confirmed by this Court in SLP (Cri.) Diary No. 15986 of 2018 on 17.05.2018. Thereafter, after a lapse of merely 13 days, i.e. on 31.05.2018, the accused filed a second application for anticipatory bail bearing Cri. O.P. (MD) No. 9348 of 2018 before the High Court that too without any change in circumstance. The High Court by the impugned order granted anticipatory bail to the accused.”

To be sure, it is then pointed out in a sharp stinging remark in para 4 that, “On a perusal of the impugned order, it is clear that the High Court has not applied its mind to the merits of the matter. The High Court has not assigned any valid reason or shown any change of circumstance since the rejection of the first application for anticipatory bail, for granting anticipatory bail to the accused.” This is clearly a rap on the knuckles of the High Court which is pretty obvious. There can be no denying it.

Furthermore, it is then pointed out commendably in para 5 while citing some landmark cases that, “Another aspect of the matter deserves to be noted. The first application for anticipatory bail was rejected by a certain learned Judge, but the second application for anticipatory bail was heard by another learned Judge, though the Judge who had heard the first application was available. This Court in the case of Shahzad Hasan Khan v. Ishtiaq Hasan Khan (1987) 2 SCC 684, in a similar matter concerning filing of successive applications for anticipatory bail, made the following observations:

“5. …The convention that subsequent bail application should be placed before the same Judge who may have passed earlier orders has its roots in principle. It prevents abuse of process of court inasmuch as an impression is not created that a litigant is shunning or selecting a court depending on whether the court is to his liking or not, and is encouraged to file successive applications without any new factor having cropped up. If successive bail applications on the same subject are permitted to be disposed of by different Judges there would be conflicting orders and a litigant would be pestering every Judge till he gets an order to his liking resulting in weakening the creditability of the court and the confidence of the other side being put in issue and there would be wastage of courts time. Judicial discipline requires that such matters must be placed before the same Judge if he is available for orders…”

In State of Maharashtra v. Captain Buddhikota Subha Rao, 1989 Supp (2) SCC 605, this Court placing reliance upon Shahzad Hasan Khan (supra) observed:

“7. …In such a situation the proper course, we think, is to direct that the matter be placed before the same learned Judge who disposed of the earlier applications. Such a practice or convention would prevent abuse of the process of court inasmuch as it will prevent an impression being created that a litigant is avoiding or selecting a court to secure an order to his liking. Such a practice would also discourage the filing of successive bail applications without change of circumstances. Such a practice if adopted would be conducive to judicial discipline and would also save the Court’s time as a Judge familiar with the facts would be able to dispose of the subsequent application with dispatch. It will also result in consistency…”

At the risk of repetition, we would like to quote similar observations made by this Court on subsequent occasions. In the case of Vikramjit Singh v. State of Madhya Pradesh, 1992 Supp (3) SCC 62, this Court observed:

“3. …Otherwise a party aggrieved by an order passed by one bench of the High Court would be tempted to attempt to get the matter reopened before another bench, and there would not be any end to such attempts. Besides, it was not consistent with the judicial discipline which must be maintained by courts both in the interest of administration of justice by assuring the binding nature of an order which becomes final, and the faith of the people in the judiciary…”

To the same effect, this Court observed in M. Jagan Mohan Rao v. P.V. Mohan Rao (2010) 15 SCC 491:

“3. In view of the principle laid down by this Court, since the learned Judge who had refused bail in the first instance was available, the matter should have been placed before him. This Court has indicated that such cases of successive bail applications should be palced before the same Judge who had refused bail in the first instance, unless that Judge is not available…”

In Jagmohan Bahl and Another v. State (NCT of Delhi) and Another, (2014) 16 SCC 501 too, this Court has observed along the same lines:

“15. …when the Sixth Additional Sessions Judge had declined to grant the bail application, the next Fourth Additional Sessions judge should have been well advised to place the matter before the same Judge. However, it is the duty of the prosecution to bring it to the notice of the Judge concerned that such an application was rejected earlier by a different Judge and he was available. In the entire adjudicatory process, the whole system has to be involved. The matter would be different if a Judge has demitted the office or has been transferred. Similarly, in the trial court, the matter would stand on a different footing, if the Presiding Officer has been superannuated or transferred. The fundamental concept is, if the Judge is available, the matter should be heard by him. That will sustain the faith of the people in the system and nobody would pave the path of forum-shopping which is decryable in law”.”

What’s more, the Bench then minces no words in pointing out in para 6 that, “In the matter on hand, it is clear that the well settled principle of law enunciated in the decisions cited supra has not been followed, inasmuch as the second application for anticipatory bail was heard by a different Judge in spite of the availability of the Judge who had disposed of the first application.”

It cannot be lost on us that it is then observed in para 7 that, “Be that as it may, even on merits we do not find any reason to take a lenient view in favour of the accused. This Court vide its order dated 19.03.2018 observed that the accused is at liberty to surrender before the concerned Trial Court and obtain regular bail, but he did not choose to surrender. In any event, since there has been no change of circumstance for grant of anticipatory bail in the second application since the disposal of the first, in our considered view, the High Court was not justified in granting anticipatory bail to the accused.”

More crucially, it is then observed in para 8 that, “It may be noted that the only reason assigned by the High Court for granting anticipatory bail is that the accused has shown his bona fides towards liquidating his liability by offering an encumbered property in Survey No. 121 belonging to his father, which might fetch a sum of Rs 45 lakhs, and also by handing over demand drafts for a sum of Rs 40 lakhs in favour of the complainant. Except for this, no other reason has been assigned. Since the allegation against the accused is that he has furnished two forged Bank Guarantees worth Rs. 10 Crores in lieu of the appellant’s services, and having regard to other facts and circumstances on record, we do not find this to be a change in circumstance that justifies the order of anticipatory bail based on the second application of the accused.”

Now it is time to dwell on the concluding paras. It is held in para 9 that, “In this view of the matter, we find that the order of the High Court granting anticipatory bail to the accused is liable to be set aside, and the same stands set aside accordingly.” Lastly, it is then held in para 10 that, “The accused is directed to surrender before the concerned Trial Court and it is open for him to seek regular bail. The appeal is allowed accordingly.”

As things stand, we thus see that leave is granted. Also, the appeal is allowed in terms of the signed order. The accused is directed to surrender before the concerned Trial Court and it is open for him to seek regular bail.

All said and done, this noteworthy, latest and commendable judgment makes it absolutely clear that successive bail applications should be placed before the same Judge who considered the first one. Many case laws were cited in this notable judgment to support this logical point of view which has already been considered in exhaustive detail in the above paras. It is only when the Judge either resigns or is transferred or is not available for some other reason that the bail application can be placed before some other Judge! All courts and all Judges must always strictly adhere to what has been laid down in this landmark and latest case by none other than the top court itself so explicitly and so elegantly!

Sanjeev Sirohi, Advocate,

s/o Col BPS Sirohi,

A 82, Defence Enclave,

Sardhana Road, Kankerkhera,

Meerut – 250001, Uttar Pradesh.