Supreme Court sets up bench of 5 senior judges

New Delhi: In an unprecedented development, the Supreme Court on Thursday referred to a constitution bench, comprising five senior-most judges, a plea claiming that alleged bribes were being taken using the names of apex court judges promising to secure favourable settlement of a case.

Terming as "disturbing" the allegations levelled in CBI's FIR that also made former Orissa High Court judge Ishrat Masroor Quddusi as one of the accused, the top court said the plea would come up for hearing before the constitution bench on November 13.

The decision that the five senior-most judges would be part of the constitution bench assumes significance in the wake of senior advocate Dushyant Dave's submission that the medical admission matter, the genesis of CBI FIR, was being heard by the bench headed by Chief Justice Dipak Misra, and hence, he should not be involved with it either on the judicial or on the administrative side.

A bench of Justices J Chelameswar and S Abdul Nazeer issued notices to the Centre and the CBI on the plea seeking setting up of a special investigation team (SIT), to be headed by a retired Chief Justice of India, to probe the matter.

"Having regard to the totality of the circumstances, we deem it appropriate that this matter be heard by the constitution bench of the first five judges in the order of seniority of this court," the court said in its order. Dave, appearing for petitioner lawyer Kamini Jaiswal, referred to the CBI FIR on the basis of which Justice (Retd) Quddusi was arrested and subsequently granted bail.

He argued that the facts of the case as alleged by CBI were "disturbing", as according to the probe agency, a conspiracy was hatched and huge illegal gratification demanded for procuring a favourable order in a matter relating to medical college admissions pending before the top court.Asserting that the matter relates to the "integrity" of the highest judicial fora in the country, Dave told the bench that several incriminating documents were seized by CBI during investigation in the graft case and there was apprehension that these materials could be misused.

He sought the passage of an interim order to direct the CBI to hand over these documents, including the case diary, in a sealed cover to the registrar of the court. "We deem it appropriate to direct the second respondent (CBI) to produce the entire material collected by the CBI in the course of investigation of the crime and keep it in a sealed cover and produce the same before the constitution bench on Monday, the November 13," the bench said.

Dave said the medical admission matter, on which the case was lodged by the CBI, was being heard in the apex court by a bench headed by Chief Justice Misra and hence the CJI should not be a part of the constitution bench. The bench was, however, non-committal on this submission. "This matter cannot be heard by the CJI, neither in administrative side, nor in judicial side," Dave said while urging the apex court to mention in its order that the constitution bench would not comprise the CJI.

He said Quddusi, along with some other accused, was arrested in connection with the case and granted bail but the CBI has not appealed against the order enlarging him on bail. Dave also said that besides the six accused named in the FIR, CBI has also mentioned other unknown public servants and private persons alleging they had demanded huge gratification to induce public functionaries by corrupt and illegal means.

He claimed that the CBI had allegedly seized Rs 2 crore cash from an alleged aide of the retired judge and the money was to be given to a hawala operator. "My first concern is that, has the CBI deliberately filed a false case so as to discredit and pressurise this great institution or is there something more to it? This needs a thorough and detailed investigation and truth needs to come out.

I pray to the almighty that allegations levelled against this great institution are false," the senior lawyer said. "People are arrested. They get bail in next 48 hours and then you (CBI) forget about it," he said. Regarding the materials seized by CBI, Dave said an order should be passed for preservation and protection of these "extremely incriminating materials" and the court could direct the CBI Director to ensure its safe custody or hand it over in a sealed cover to the apex court registrar.

Initially, the matter was mentioned in the morning before the bench headed by Justice Chelameswar for an urgent listing of the petition today itself. The court said the matter would come up for hearing before it at 12.45 pm after Dave said it should be heard today itself as the FIR contained serious allegations. "The FIR contained certain allegations which are disturbing. The allegations pertain to the functioning of this court. On perusal of the FIR which was placed before us in the morning, we thought it necessary and proper to take up the matter immediately," the bench observed.

During the hearing, an officer of the apex court registry was spotted in the court room by Justice Chelameswar who asked him about the purpose of his visit. The registry official handed to the bench a photocopy of a note purportedly issued by the CJI's office which was taken on record by the bench as annexure of its order.

"At the same time, we are also duty bound to place the developments that when the hearing of the matter was in progress, the officer of the Registry placed a xerox copy of the proceedings purportedly issued by the Chief Justice of India, a copy of which is annexed to this order," it noted.

Quddusi, who had also served as a judge in Chhattisgarh High Court, was arrested along with Lucknow-based Prasad Institute of Medical Sciences' chairman B P Yadav, his son Palash Yadav and three others, for allegedly trying to settle a matter relating to a medical college barred from admitting new students.