UP medical scam: SC refers plea seeking probe to 5-judge constitution bench

The Supreme Court on Thursday referred to a five-judge constitution bench a petition seeking SIT probe into a retired Orissa High Court judge's alleged involvement in a scam involving an Uttar Pradesh-based medical institution that has cast its shadow on the functioning of the top court.

The former High Court judge was allegedly trying to help the Lucknow-based Prasad Educational Trust to overcome a bar on admitting students in its medical college for two academic years (2017-2018 and 2018-2019).

The bench of Justice J. Chelameswar and Justice S. Abdul Nazeer directed the CBI Director to keep the entire record of its investigations into the matter and the case diary in a sealed cover and place it before the constitution bench that will hear the matter on Monday.

The Central Bureau of Investigation is the second respondent with Union of India being the first respondent in the petition filed by advocate Kamini Jaiswal.

Recounting the sequence of developments starting with the mentioning of the petition in the morning by senior counsel Dushyant Dave, the bench in its order said: "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."

"Having regard to the importance of the matter, we also deem it appropriate that the matter be listed on Monday, the 13th November, 2017."

The order also referred to the xerox copy of the proceedings "purportedly" issued by the Chief Justice of India Dipak Misra, that was placed before the bench by an official of the registry when the hearing was in progress.

The court did not say anything on a plea by Dave that the constitution bench should not include Chief Justice Misra as the matter relating to the medical institution in question was heard by the bench he headed.

Nearly an hour after bench headed by Justice Chelameswar, upon a mentioning by Dave, said that it will hear the matter at 12.45 PM, the hearing by the constitution bench headed by the Chief Justice was adjourned for 10 minutes and later lawyers present in the court room were told that the constitution bench would resume hearing at 2 p.m.

The five judge constitution bench headed by Chief Justice Misra is hearing a batch of petition by Delhi government and others on the question whether it was the Centre through Lt. Governor or the elected government of Delhi had the primacy in the administration of the national capital.

Earlier on Wednesday, a petition was mentioned before Justice Chelameswar seeking a SIT probe into the matter and he had agreed to hear it.

However, in the post lunch session on Wednesday, it surfaced that the matter that Justice Chelameswar had said he would hear was assigned to another bench by the Chief Justice.

Referring to the FIR filed by the CBI, Dave said that it indicates that attempts were being made to "unduly and illegally influence the outcome of the petition" pending before the top court.

Drawing attention to the trajectory of the dates and the order passed, including September 18 when the top court passed the order and September 19 when CBI registered the FIR, Dave told the court that it seems that the CBI was on the trail of the matter for a long time.

"I pray to almighty that the allegations that are sought to be levelled against the institution (Supreme Court) are false and are bound to be false at the end of an independent investigation," he said.

The petition says that that the FIR "casts cloud on the judiciary at the highest level" and the investigation can't be left to an agency fully controlled by the government, as this was vital to "protect the independence and integrity of the judiciary and also to restore the public confidence in the judiciary".

Jaiswal's petition said that the "FIR lodged by the CBI names a retired judge of a High Court as an accused, who was allegedly negotiating through a middleman to get the favourable order in a petition pending in this Court. The said petition was being heard by a bench headed by the present Chief Justice of India".

In September, the CBI had arrested retired Orissa High Court judge Ishrat Masroor Quddusi and five others, including the chairman of the private medical college in Lucknow.

Quddusi was granted bail on September 27. Bhawana Pandey - the lone woman accused - was granted one-week interim bail on humanitarian ground, while the other accused - B.P. Yadav, Palash Yadav, Bishwanath Agrawala, and Ram Dev Saraswat - were granted bail by a local court on October 6.