New Delhi: The Supreme Court has always been wary of considering its 1988 judgment in A.R. Antulay v R.S. Nayak and Another as a precedent. It is a celebrated judgment for the maxim, ex debito justitiae, that is, one which a litigant is entitled merely upon the asking for it, as opposed to something which may be a matter of judicial discretion or determination. In other words, the litigant has a remedy as of right, which the court has no discretion to refuse.
The other maxim which the case relied on was actus curiae neminem gravabit, that is, ensuring that neither party before the court is prejudiced by some accidental or unavoidable action or omission of the court.
The former chief minister of Maharashtra, the late A.R. Antulay, faced the allegation that a trust floated by him in 1980 – the Indira Gandhi Pratibha Pratishsthan – earned huge income through donations, and he had to quit as chief minister as a result, in 1982. A five-judge constitution bench of the Supreme Court, in 1984, in order to expedite hearing of the case against him, transferred his trial before a special court to the Bombay high court. Antulay sought reconsideration of the judgment on the ground that his right to avail trial court hearing, and the appellate remedy was dispensed with by the Supreme Court unjustly. A seven-judge bench agreed with him in 1988, and recalled its previous judgment as unconstitutional.
Since then, it has been a practice for senior counsel in the Supreme Court to cite this case as a precedent, in order to persuade the court to reverse a previous ruling, if they are unable to get relief from review and curative jurisdictions to correct a verdict which went against their clients. But the court has always resisted such pleas by emphasising the rule of precedent, and treating the Antulay case as one with unique facts.
Therefore, it was refreshing to find the court on Friday citing the Antulay case on its own, in its order, authored by Justice Sanjiv Khanna, in the ongoing Saradha chit fund scam case (Subrata Chattoraj v Union of India). Justice Sanjiv Khanna was part of the bench which also comprised the Chief Justice of India, Ranjan Gogoi, and Justice Deepak Gupta.
So, what made the Supreme Court rely on the Antulay judgment in this case so unexpectedly, when none of the senior counsel arguing before the bench had specifically sought it?
On May 9, 2014, the court, keeping in view the magnitude, inter-state ramifications, plight of investors, and need for swift and efficient investigation, transferred the chit-fund scam cases registered in different police stations in West Bengal and Odisha from the state police agencies to the Central Bureau of Investigation (CBI). The CBI alleged non-cooperation on the part of West Bengal State Police Force (WBSPF), and accused it of obfuscating the investigation by placing impediments and roadblocks with a view to protecting big names and members/leaders of the ruling party in the state. The CBI claims having substantial material implicating Rajeev Kumar, a senior Indian Police Service officer, and former Commissioner of Police, Kolkata and the then Commissioner, Bidhannagar Commissionerate, of connivance and complicity with the principal accused. Rajeev Kumar denied the CBI’s allegations.
On February 5, 2019, the Supreme Court restrained the CBI from arresting Kumar, while directing him to appear and make himself available before the agency, and cooperate with it at all times. “To avoid all unnecessary controversy, we direct the Commissioner of Police (Rajeev Kumar) to appear before the investigating agency in Shillong, Meghalaya on such date(s) as may be fixed”, the court held in its order.
The February 5 hearing was necessitated because of the incident in Kolkata on February 3 when five CBI officials probing the Sharada scam were detained by the state police outside Rajeev Kumar’s residence. The incident led to a showdown between the CBI and the state police, with the chief minister going on a dharna against the CBI’s alleged witch-hunt against Kumar.
On Friday, the court acknowledged that despite orders and words of advice, antagonism and acrimony had escalated (between the CBI and the WBSPF) and not ebbed as was evident from the pleading and arguments addressed before it. The court expressed its disappointment and dismay seeing the CBI and the WBSPF pitted – and casting aspersions – against each other and being embroiled in this feud.
“Situation is grim as both sides have hardened their stand and there is no administrative mechanism in place to avoid and resolve such conflicts between the two wings of the police force in the country,” the bench lamented in Friday’s order. “At the receiving end are silently waiting lakhs of small town and rural investors who have been deprived and looted of their savings,” it added.
Friday’s order pertained to the Miscellaneous Application (MA) filed by the CBI in the contempt petition which related to the incidents at Rajeev Kumar’s residence and the regional office of the CBI in the afternoon of February 3.
The bench admitted in Friday’s order: “….We had attempted to resolve the controversy by ensuring interrogation of Mr. Rajeev Kumar, in view of the allegations made by the CBI, yet, concomitantly barred the CBI from arresting [him]. This, however, has not worked out.”
The bench then noted that both the parties are in agreement that in contempt jurisdiction, the Supreme Court – while examining the events of February 3 – could not go into the issues that arose for consideration. While considering the rival contentions on the need for custodial investigation of Rajeev Kumar, the bench found a strange convergence of views of the CBI and the WBSPF that in the contempt proceedings, the court cannot determine whether or not he should be arrested by the CBI for the purpose. The Centre questioned the court’s jurisdiction to protect Rajeev Kumar from arrest vide its February 5 order in the ongoing contempt proceedings against him for defying the court’s previous directions to cooperate with the CBI’s investigation into the chit-fund scam.
This is how the court wriggled out of the CBI-Rajeev Kumar confrontation – by withdrawing the protection given to him so as to restrain the CBI from arresting him, and leaving it open to the CBI to “act in accordance with the law”. As a safeguard, the bench directed that the February 5 order would continue for a period of seven days from Friday to enable Kumar to approach the competent court for relief, if so advised.
The Antulay judgment came in handy to the bench, because its intervention on the question of custodial investigation of an accused would have meant finality, thus depriving either of the parties availing the trial court and appellate court (high court) remedies to which they are entitled. The bench thus generously cited Antulay, which mandates that the procedure established in law should be strictly complied with and should not be departed from to the disadvantage or detriment of any person.
“We clarify that we have not made any comments on the merits of the contentions and the reasons recorded in the present order would not be a ground to accept or reject the request of custodial interrogation or grant of protection, if any such application/petition is moved,” the bench added.