http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 10  

CASE NO.: Writ Petition (crl.)  197-198 of 2004

PETITIONER: Rajiv Ranjan Singh ’Lalan’ & Anr.                       

RESPONDENT: Union of India & Ors.                                 

DATE OF JUDGMENT: 21/08/2006

BENCH: Dr. AR. Lakshmanan

JUDGMENT: J U D G M E N T

Dr. AR. Lakshmanan, J.

I had the privilege of perusing the judgment proposed by  my learned Brother - Hon’ble Mr. Justice K.G. Balakrishnan.   While respectfully concurring with the conclusion arrived by  the learned Judge, I would like to add the following few  paragraphs:- The first petitioner is a Member of Parliament and the  second petitioner is the Deputy Chief Minister of Bihar.  The  above writ petition, ostensibly in public interest, has been filed  by them for the following relief: a.      issue an appropriate writ, order or direction monitoring  the conduct of the trials relating to the fodder scam case  proceeding against respondent nos. 4 and 5 in the State  of Bihar & State of Jharkhand;

b.      issue an appropriate writ, order or direction directing  the Director, CBI to reinstate the prosecutors who were  handling the cases in the Trial Court and the High  Court and directing that no prosecutor or any CBI  officer attached with the investigation and the trial of  these scam cases should be removed, harassed or  victimized for discharging their duties, without specific  orders from this Hon’ble Court;

c.      issue an appropriate writ, order or direction directing  the Director, CBI to provide the logistics and ensure  that it is represented by at least one Inspector in each of  the 7 courts by Special Judge, CBI in the State of  Jharkhand which is trying the fodder scam cases so  that no adjournments are sought and granted;

d.      issue an appropriate writ, order or direction canceling  the bail granted to respondent nos.4 and 5

e.      issue an appropriate writ, order or direction directing  the respondent no.1 and/or 3 to file an appeal against  the order passed by the Hon’ble Income Tax Appellate  Tribunal"

On our direction, the Registrar General of the Patna High  Court was present in Court on 26.07.2006.  He filed an  affidavit and also explained the procedure followed in the  appointment of Shri Munni Lal Paswan as a special Judge to  try the disproportionate assets cases with reference to the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 10  

records.  We heard Mr. Mukul Rohatgi and Mr. Kailas Vasudev  learned senior counsel for the petitioners and Mr. Ram  Jethmalani, learned senior counsel assisted by Mr. P.H.Parekh  and Mr. G.E. Vahanvati, learned Solicitor General and Mr.  Mohan Parasan, learned ASG for the respondents.  Mr. Mukul Rohatgi and Mr. Kailash Vasudev, learned  senior counsel made elaborate submissions on the question of  maintainability of the writ petitions and also submitted that  Mr. Munni Lal Paswan was promoted recently and posted at  Patna for disposing off the case filed against respondent Nos. 4  and 5 and that the said Munni Lal Paswan is not a desirable  person to be posted in the said post to conduct the case.  He  also requested that the Public Prosecutors who were proving to  be inconvenient to respondent Nos. 4 and 5 are being  supplanted with chosen ones.  Like that, Member (Judicial) in  the Income-tax Appellate Tribunal - Mr. R.K. Tyagi who had  been hearing the appeal of respondent Nos. 4 and 5 was  curiously sent on deputation and was replaced by Mr.  Mohanarajan, a person who was on the verge of retirement to  head the Tribunal.  Within 2 weeks, the matter was heard and  allowed in favour of the assesses.  He also submitted that the  case relating to disproportionate assets before the Special  Judge, CBI is at the final stage of hearing.  The Director, CBI  has started changing the prosecutors mid-way when the case  was nearing completion and that the public prosecutor who  was conducting the cases from the very beginning has been  replaced by Shri Om Shankar Singh, a retired Deputy  Superintendent of Delhi Police who has commenced law  practice recently.  It is also submitted that respondent Nos. 4  and 5 are deliberately protracting the trial by taking  unnecessary adjournments which, by itself, would be a ground  for cancellation of bail.  He further submitted that by virtue of  the new political equations between the party in power in the  State of Bihar and at the Centre, respondent No.5 one of the  main accused in the fodder scam now has substantial  administrative control and political say in the functioning of  the Government of India and that the CBI and the Central  Board of Direct Taxes, respondent Nos. 2 and 3 have become a  party in an effort to shield respondent Nos. 4 and 5.  He  continued to submit that this Court shall monitor the case  since the accused are using state machinery to block the  judicial process and subvert the trial and dilatory tactics being  adopted by the accused to delay the trial on one pretext or the  other.  He also submitted that the prosecutors or investigators  connected with the fodder scam matters in the State of Bihar  who have till date been discharging their functions in the trial  Court should not be disturbed, replaced or sidelined.   Mr. Rohatgi, in support of his contentions, invited our  attention to the various documents, annexures, income-tax  records and the paperbooks.  Appearing for respondent Nos. 4 and 5, Mr. Ram  Jethmalani, learned senior counsel argued that the petition  had been filed only to achieve personal or political gain, no  case had been made out for the cancellation of bail to Mr. Lalu  Prasad Yadav and his wife and this court should not monitor  the trial as it would send wrong signals.  He also cited many  decisions with regard to the maintainability of the writ  petitions at the instance of practicing politicians.  He sought  dismissal of the writ petitions with exemplary costs.  Appearing for the CBI, learned Solicitor General G.E.  Vahanwati denied point by point the allegations of the  petitioners made in their pleadings with reference to various  documents and records and proved to our satisfaction that the  statements made by the petitioners are not true and correct

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 10  

and have been made with an ulterior motive.  Learned Solicitor  General further submitted that there had been no interference  by Mr. Lalu Prasad Yadav or his wife in any of the matters  whether in the appointment of Judges or in the change of the  prosecutor or on the decision not to file an appeal in the  income-tax cases.  The learned Solicitor General cited T.N.  Godavarman Thirumulpad (98) vs. Union of India and  Others, 2006 (5) SCC 28 (Hon. Y.K. Sabharwal, C.J., Arijit  Pasayat and S.H. Kapadia, JJ.) and submitted that howsoever  genuine a case brought before the Court by a public interest  litigant maybe, the Court has to decline its examination at the  behest of a person who, in fact, is not a public interest litigant  and whose bonafides and credentials are in doubt and that no  trust can be placed by the Court on a mala fide applicant in  public interest litigation.  Learned Solicitor General submitted  now it is time to give a severe warning and sound alert since  these are basic issues which are required to be satisfied by  every public interest litigant.  He also cited paras 25 and 26 in  support of the contention that the writ petition is not  maintainable at the instance of the political rivals.  Mr. Ram Jethmalani in regard to the maintainability of  the writ petition cited the following decisions: Janata Dal vs. H.S. Chowdhary and Others, (1992) 4  SCC 305 (2 Judges) para 109. "It is thus clear that only a person acting bona fide and  having sufficient interest in the proceeding of PIL will  alone have a locus standi and can approach the court to  wipe out the tears of the poor and needy, suffering from  violation of their fundamental rights, but not a person  for personal gain or private profit or political motive or  any oblique consideration.  Similarly, a vexatious  petition under the colour of PIL brought before the court  for vindicating any personal grievance, deserves  rejection at the threshold."

Dattaraj Nathuji Thaware vs. State of Maharashtra  and Others, (2005) 1 SCC 590 (Hon. Arijit Pasayat and Hon.  S.H.Kapadia, JJ) and invited our attention to para 4,5,9,10,12  and 14. Ashok Kumar Pandey vs. State of W.B., (2004) 3 SCC  349 para 12  "12.  Public interest litigation is a weapon which has to  be used with great care and circumspection and the  judiciary has to be extremely careful to see that behind  the beautiful veil of public interest an ugly private  malice, vested interest and/or publicity-seeking is not  lurking.  It is to be used as an effective weapon in the  armory of law for delivering social justice to citizens.   The attractive brand name of public interest litigation  should not be used for suspicious products of mischief.   It should be aimed at redressal of genuine public wrong  or public injury and not publicity-oriented or founded  on personal vendetta.  As indicated above, Court must  be careful to see that a body of persons or a member of  the public, who approaches the court is acting bona fide  and not for personal gain or private motive or political  motivation or other oblique consideration.  The Court  must not allow its process to be abused for oblique  considerations.  Some persons with vested interest  indulge in the pastime of meddling with judicial process  either by force of habit or from improper motives.  Often  they are actuated by a desire to win notoriety or cheap  popularity.  The petitions of such busybodies deserve to  be thrown out by rejection at the threshold, and in  appropriate cases, with exemplary costs."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 10  

S.P. Gupta vs. Union of India and Another, 1981  (Supp) SCC 87 (7 Judges) para 24  "24.  But we must be careful to see that the member of  the public, who approaches the Court in cases of this  kind, is acting bona fide and not for personal gain or  private profit or political motivation or other oblique  consideration.  The Court must not allow its process to  be abused by politicians and others to delay legitimate  administrative action or to gain a political objective.   Andre Rabie has warned that "political pressure groups  who could not achieve their aims through the  administrative process" and we might add, through the  political process, "may try to use the Courts to further  their aims".  These are some of the dangers in public  interest litigation which the Court has to be careful to  avoid.  It is also necessary for the Court to bear in mind  that there is a vital distinction between locus standi and  justiciability and it is not every default on the part of the  State or a public authority that is justiciable.  The Court  must take care to see that it does not overstep the limits  of its judicial function and trespass into areas which are  reserved to the Executive and the Legislature by the  Constitution.  It is a fascinating exercise for the Court to  deal with public interest litigation because it is a new  jurisprudence which the Court is evolving, a  jurisprudence which demands judicial statesmanship  and high creative ability.  The frontiers of public law are  expanding far and wide and new concepts and doctrines  which will change the complexion of the law and which  were so far as embedded in the womb of the future, are  beginning to be born."    

Mr. Rohatgi submitted that this Court should monitor  the conduct of the trial relating to the fodder scam cases  against respondent Nos. 4 and 5. Union of India and Others vs. Sushil Kumar Modi  and Others, (1998) 8 SCC 661 (3 Judges) para 6 "6. This position is so obvious that no discussion of the point is  necessary.  However, we may add that this position has never been  doubted in similar cases dealt with by this Court.  It was made clear  by this Court in the very first case, namely Vineet Narain vs. Union  of India, (1996) 2 SCC 199 that once a charge-sheet is filed in the  competent court after completion of the investigation, the process of  monitoring by this Court for the purpose of making the CBI and  other investigative agencies concerned perform their function of  investigating into the offences concerned comes to an end; and  thereafter it is only the court in which the charge-sheet is filed which  is to deal with all matters relating to the trial of the accused,  including matters falling within the scope of Section 173(8) of the  Code of Criminal Procedure.  We make this observation only to  reiterate this clear position in law so that no doubts in any quarter  may survive.  It is, therefore, clear that the impugned order of the  High Court dealing primarily with this aspect cannot be sustained."                                                 (emphasis supplied) It is thus clear from the above judgment that once a  charge-sheet is filed in the competent Court after completion  of the investigation, the process of monitoring by this Court for  the purpose of making the CBI and other investigative  agencies concerned perform their function of investigating into  offences concerned comes to an end and thereafter, it is only  the Court in which the charge-sheet is filed which is to deal  with all matters relating to the trial of the accused including  matters falling within the scope of Section 173(8).  We respectfully agree with the above view expressed by

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 10  

this Court.  In our view, 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 dialogue with  the investigating agency.  Therefore, there can be no  monitoring, after the charge sheet is filed.    This Court issued a direction on 22.02.2005 to the  President of the Income-tax Appellate Tribunal to submit a  detailed report in regard to the allegations made by the  petitioners.  Pursuant to the directions of this Court, the  President of ITAT filed a detailed report dated 09.03.2005.  A  perusal of which shows that there is not an iota of truth in the  allegation and all the aforesaid averments are completely  baseless.  As noticed earlier, certain allegations were made  against Mr. R.K.Tyagi and Mr. Mohanarajan whom, according  to the petitioners, were due for retirement was appointed to  head the Tribunal.  It was further stated that on 02.07.2004  Mr. R.K.Tyagi who had been hearing the appeal of respondent  Nos. 4 and 5 was sent on deputation for 2 weeks and was  replaced by Mr. Mohanarajan, a person who was on the verge  of the retirement to head the Tribunal and that the said  Mohanarajan picked up only the cases pertaining to  respondent Nos. 4 and 5 and heard the matter and allowed in  favour of the assesses and that no appeal has been filed  against the said order. On 22.02.2005, an order was passed by this Court  directing the Union of India to produce before this Court the  proposal of CBI dated 20.07.2004 and the entire file including  notations pertaining to the appointment of Mr. Uma Shankar  Sharma as prosecutor.  The President, ITAT was directed to  send to this Court all papers pertaining to constitution of the  Bench of Mr. Mohanarajan and Mr. M.K. Sarkar and also to  sent copies/order sheets of ITA Nos. 233-237 of 2000 etc. etc.  The President, ITAT was directed to state whether Mr.  R.K.Tyagi was sent on deputation for two weeks during the  period the other two persons were appointed and if so why and  on whose behalf he was sent on deputation.  On 09.03.2005, Mr. Vimal Gandhi, President, ITAT  submitted his report.  Flash figures of investigation, disposal  and dependency of appeals for the month of April, 2004 and  the position as on 01.05.2004 with reference to the various  benches in the country was furnished (Annexure-2).  It is seen  from the report that Mr. D.K. Tyagi, JM, Patna 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.  This was done in early June.   Mr. Tyagi also explained the circumstances under which he  had gone abroad etc.  The President acceded to his request on  compassionate grounds and permitted him to remain in Delhi  without any T.A. D.A. for 1 month from June, 21 onwards.   The President, ITAT, therefore, has stated that it is not correct  to suggest that Tyagi was shunted out of Patna by him.  Insofar as Mohanarajan is concerned, the President has  explained the position with regard to Mohanarajan and M.K.  Sarkar.  He said Mr. Mohanarajan joined the Tribunal as  Judicial Member in November, 1995 and posted at Jabalpur,  Chennai, Patna and Bangalore and he served in Patna from  02.09.2002 onwards till he was transferred to Bangalore in  March, 2003.  He is sobre in nature and that he is to retire on  06.11.2009 and he had never sat with Mr. Sarkar earlier.   When Mr. Agarwal’s inability to tour Patna was made known   to the President in Bangalore, Mohanarajan’s name came to  his mind as an appropriate person to replace Mr. D.K. Agrawal  and he was accordingly directed to camp at Patna in June,  2004 and that the camp was organized accordingly.  Insofar as  Mr. M.K.Sarkar is concerned, he before joining the Appellate

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 10  

Tribunal Mr. Sarkar was asked managed to Patna and other  Benches on camp till regular members were available as  pendency at Kolkata was also low.  The details of tour of  Sarkar to Patna in 2004 has also been furnished.  The learned Solicitor General then invited our attention  to Annexure-7 filed along with the report of the President,  ITAT.  Respondent No.4 \026 Mr. Lalu Prasad, by his letter dated  15.10.2003, addressed a letter to the President, ITAT, New  Delhi requesting for transfer of appeals filed before Patna  Bench of the Tribunal to Delhi Bench in his case.  On  17.10.2003, the President made a note on the said letter to  call for comments/objections, if any, from the  Department/Patna Bench by fax.  Mr. Lalu Prasad has stated  in the said letter that since he is elected as a Member of Rajya  Sabha and performed duties as a Member of Rajya Sabha he  has to be present in Delhi and, therefore, the appeals may be  transferred from Patna to Delhi Bench.  By annexure-8, the  Patna Bench gave its response on 31.12.2003 stating that the  legal aspect of the matter was being examined and that a final  report will follow soon.  By annexure-9 dated 08.01.2004, the  Directorate General of Income-tax Patna addressed a letter to  Assistant Registrar, ITAT Patna Bench as to whether  constituting a special Bench for early disposal of the appeals  of Shri Lalu Prasad.  Annexure-9 was in reply to the ITAT  Patna Bench letter dated 11.11.2003 and during that time the  present Government was not in power.  By Annexure-10 the  DGIT by their letter dated 23.04.2004 stated that it would not  be possible to agree to transfer the appeals of Mr. Lalu Prasad  from ITAT, Patna Bench to ITAT, Delhi Bench and it may be  worthwhile to consider constituting a special Bench for early  disposal of these appeals.  It is seen from annexure-12 dated  11.03.2004 signed by M.A. Bakshi, V.P. ITAT, Chandigarh  Zone that it may not be necessary to constitute a special  Bench for disposal of the appeals relating to Mr. Lalu Prasad.  In regard to the prayer for cancellation of the bail at the  instance of the petitioner, we are of the opinion that the said  request cannot at all be countenanced.  Our attention was  drawn to order dated 14.07.2003 passed by this Court which  reads thus: "We have been extending bail from time to time for a  period of six months in order to monitor the trial.  In  our view, it is not now necessary to do so any further.   We, therefore, order that the bail which has been  granted by this Court will continue for the duration of  the case on the same terms and conditions.  We clarify  that it will be open to the C.B.I to apply for cancellation  of bail in accordance with law in this court.  Further, if  it is found that the petitioner is deliberately protracting  the trial or taking unnecessary adjournments then that  by itself would be a ground for cancellation of bail."

Mr. Rohatgi submitted that respondent Nos. 4 and 5 are  interfering with the cause of justice so far as conduct of the  trial and IT proceedings are concerned and, therefore, the bail  granted to them is liable to be cancelled.  This submission has  no merits in view of the arguments advanced by learned  Solicitor General inviting our attention to the various  documents and annexures etc. to the effect that the  respondent Nos. 4 and 5 have never interfered with the  conduct of trail or with the IT proceedings.  It is stated that  respondent Nos. 4 and 5 are deliberately protracting the trial  by taking unnecessary adjournments.  Then that itself would  be a ground for cancellation of bail.  This argument has no  substance.  It is a fact that the matter was adjourned at the  instance of the defence on various occasions.  Court itself has

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 10  

adjourned the matter for various reasons.  We, therefore,  cannot hold that the delay is solely attributable to respondent  Nos. 4 and 5 which, in our opinion, cannot be a ground for  cancellation of bail when it is not proved that any of the bail  conditions has been violated.  The delay is attributable to both  the prosecution and the defence and also to the Court.   Therefore, respondent Nos. 4 and 5 cannot be held responsible  for the delay.   Mr. Rohatgi argued that Munni Lal Paswan should be  changed from the present place and some other officer should  be posted there.  Mr. Ram Jethmalani, at the time of hearing,  explained to this Court as to how and under what  circumstances the earlier incumbent of the office - Mr.  Yogendra Prasad was shifted at his own request and that how  Munni Lal Paswan was promoted recently and posted at Patna  for the conduct of the matters.  We summoned the Registrar  General of Patna High Court on 26.07.2006.  The Registrar  General Madhusudhan Singh has also filed an affidavit in  regard to the three queries raised by us.  The Registrar  General explained to this Court in regard to the practice in the  High Court of Patna and how the matter is placed before the  Standing Committee and the remarks of the inspecting Judges  and the guard files which are maintained separately of each  officers which were made available to the Standing Committee.   The said fact also finds mention in the decision dated  22.06.2005 of the Standing Committee.  In regard to query  No.3 the Registrar has submitted as follows:- "That in regard to Query No.3 of this Hon’ble Court as  mentioned in the order dated 26.7.2006, I respectfully  say and submit that the remarks of the Hon’ble  Inspecting Judge in case of Shri Jawahar Prasad  Ratnesh was of the year 1985, 1986-87, 1988, 2001,  2003 and 2005 (and remarks recorded by P.O.,  Industrial Tribunal, Patna in 1998).  In respect of Shri  Ram Niwas Prasad, the remarks recorded by the Hon’ble  Inspecting Judge was of 1985, 1986, 1997 and 2002.   As regards Shri Munni Lal Paswan, the remarks  recorded by the Hon’ble Inspecting Judge was of 1985  and 1990 and by Vice-Chairman, Industrial Tribunal,  Patna Bench in 1997."

We have perused the records submitted by the High  Court in regard to the officers including Munni Lal Paswan.   There is absolutely no adverse entry against Munni Lal  Paswan and that poor record if any is not the record of  integrity and that no gradation has been given to officers after  1997 onwards including Paswan. We have perused the proceedings of the meetings of the  Standing Committee held on 22.06.2005 in the chambers of  the Hon’ble Chief Justice which reads thus: Proceedings of the meeting of the Standing Committee held on 22nd June, 2005 in the  Chambers of the Hon’ble the Chief Justice:

Agenda                                          Decision

To consider the matter regarding                Having considered the relevant service Postings if three Special Judges at             records of the officers concerned and also Patna for C.B.I. (Fodder Scam           taking into consideration the fact that Cases), C.B.I. (South Bihar) and                no allegation petition has been recieved Vigilance Cases(Court No.1) in          against Sri Muni Lal Paswan, Additional Place of S/Shri Yogendra Prasad,                District Judge, Saharsa.  It is resolved tha t Mungeshwar Sahoo and Jitendra           let him (Sri Muni Lal Paswan) be posted Mohan Sharma, respectively(P.F.         as Special Judge for C.B.I. (Fodder Scam XXVII-5-98)                                     Cases) at Patna.  It is further resolved upo

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 10  

n                                                        consideration of the relevant service record s Of the officers concerned that Sri J.P.  Ratnesh, Additional District Judge, Patna, be  posted as Special Judge, C.B.I. (South  Bihar) and Sri Ram Niwas Prasad,  Additional District Judge, Patna as Special  Judge for Vigilance Case (Court No.1).

    In view of the urgency of the matter, the  office is directed to take necessary steps for  issue of notification immediately.

Sd/- Nagendra Rai, Actg, C.J. Sd/- I.P.Singh, J.A.D. 1 Sd/- R.N. Prasad, J.A.D. II Sd/- Barin Ghosh, J. Sd/- M.L. Visa, J. Sd/- Rajendra Prasad,J."                 

It is thus seen from the above that all the relevant service  records of the officers concerned including Munni Lal Paswan  was placed before the Standing Committee which took into  consideration the fact that no allegation petition has been  received against Munni Lal Paswan, Addl. District Judge.  It  was resolved that Munni Lal Paswan be posted as Special  Judge, CBI Fodder scam cases at Patna.  The Registrar  General had also stated at the time of hearing that the  resolution of the Standing Committee was also placed before  the Full Court which also approved the same.  Article 233 of the Constitution of India deals with  subordinate Courts.  The appointment of persons, posting and  promotion of District Judges in any State shall be made by the  Governor of the State in consultation with the High Court  exercising jurisdiction in relation to such State.  Likewise,  under Article 235 the control over district courts and courts  subordinate thereto including the posting and promotion of  and the grant of leave to persons belonging to judicial service  of a State and holding any post inferior to the post of District  Judge shall be vested in the High Court.  The appointment of lawyers is the prerogative of the  Government and the prosecuting agency.  The petitioners are  trying to find fault with every attempt with every steps taken.   Cases like this the delay is inevitable.  It is also settled law that appointment of advocates,  public prosecutors etc. is the prerogative of the government in  power and court has no role to play. In the above case, the Standing Committee has taken a  decision to appoint Munni Lal Paswan and other officers after  scrutinizing the records, ACRs etc. in accordance with Article  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.         In regard to the prayer of the petitioner to direct the  Government of India to file the appeal in the income-tax  matters, we are of the opinion that the said prayer also cannot  at all be countenanced.  In this regard, Section 260 A(1) and  (2)(a) may be referred to which reads as under:   "260A. Appeal to High Court \026 (1) An appeal shall lie to  the High Court from every order passed in appeal by the  Appellate Tribunal, if the High Court is satisfied that the  case involves a substantial question of law.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 10  

(2) The Chief Commissioner or the Commissioner or an  assessee aggrieved by any order passed by the Appellate  Tribunal may file an appeal to the High Court and such  appeal under the sub-section shall be \026

(a)     filed within one hundred and twenty days from  the date on which the order appealed against  is received by the assessee or the Chief  Commissioner or Commissioner; (b)     ****** (c)     ******"  

In this regard, counter affidavit filed on behalf of the  Under Secretary to the Government of India, Ministry of  Finance may be usefully referred to.  It is stated in the said  counter affidavit that the matter has been fully considered and  legal opinion was sought by BCIT investigation, Patna and that  the opinion of the learned ASG was received stating that there  is 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  consideration.  This apart, another affidavit was filed by Mr. L.K.Sighvi,  the Chief Commissioner of Income-tax (VIII), New Delhi para 1  "I was the Director General IT (Inv.), Patna during the relevant  period when decision was taken regarding filing of appeals  pertaining to the ITAT orders in the cases of Smt. Rabri Devi  and Shri. Lalu Prasad Yadav before the Hon’ble High Court at  Patna.  Considering the facts and circumstances of the case  and the fact that the present petition was pending before this  Hon’ble Court, I thought it fit to refer the matter to the CBDT  for consideration and seeking opinion from the Ministry of  Law.  The CBDT 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 ITAT in the  cases of Smt. Rabri Devi and Shri Lalu Prasad Yadav for filing  appeals before the Hon’ble High Court.  Accordingly,  instructions were issued by me that appeals would not be  filed in respect of these cases.

It is thus seen that the Government of India has taken  into consideration the views of the Ministry of Law, Ministry of  Finance to the effect that no substantial questions of law arise  out of the judgments of the ITAT in the case of respondent  Nos. 4 and 5 for filing appeals before the High Court and that  instructions were issued that appeals would not be filed in  respect of those cases.  Certain allegations have been made against CBDT and  the Public Prosecutors, Members of the Income-tax Tribunal  etc.  None of them were made parties before us.  Therefore, the  allegations made against them are one-sided and cannot be  looked into at all.  We cannot also say that all these  authorities have acted in a mala fide manner.   In our opinion, public interest litigation meant for the  benefit of the lost and lonely and it is meant for the benefit of  those whose social backwardness is the reason for no access  to the Court.  We also say that 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.  In our  opinion, the liberty of an accused cannot be taken away except  in accordance with the established procedure of law under the  Constitution criminal procedure and other cognate statutes.   We are also of the opinion that PIL is totally foreign to pending  criminal proceedings.  The records placed before us would only

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 10  

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 not to file an appeal in the  income tax cases.  For the foregoing reasons, we hold that both the writ  petitions have no merit and is liable to be dismissed and  accordingly we do so.   In the circumstances, we order no costs.  Before  concluding, we say that the petitioners are waging a political  battle against respondent Nos. 4 and 5 through the medium of  Public Interest Litigation.  The venue for political battle, in our  opinion, can never be this Court by filing a writ petition under  Article 32 of the Constitution of India.   27952