Thaindian News

New Delhi, Sep 23 (IANS) A Supreme Court bench was Friday divided on the maintainability of the central government’s application for recall of a July 4 apex court judgment setting up a Special Investigation Team (SIT) to probe black money. The bench has referred the issue to Chief Justice S.H. Kapadia.

The matter was referred following a split verdict between Justice Altamas Kabir and Justice S.S. Nijjar on the question of maintainability of the centre’s application that has sought the recall of the apex court’s order setting up SIT to investigate laundering of ill-gotten money parked in tax havens.

The court said that since “we have differed in our views regarding the maintainability” of the centre’s application on the recall of July 4, 2011, judgment and order, let the matter be placed before the Chief Justice of India, for reference to a third Judge. The judgment and order sought to be recalled were pronounced by Justice B. Sudarshan Reddy (since retired) and Justice S.S.Nijjar.

Upholding maintainability of the government’s application, Justice Kabir said that in view of the inherent powers vested in the Supreme Court and it being the guardian of the constitution, the application, “even in its present form is maintainable in the facts and circumstances of the case, which includes threat to the security of the country.”

Justice Kabir added that “even if the present application was to be dismissed as being not maintainable under Article 142 of the Constitution read with Order 47 Rule 6 of the Supreme Court Rules, 1966, it would not preclude the Applicants from filing an application for review under Article 137 of the Constitution.”

“In my opinion, the aforesaid observations would not be applicable in the facts and circumstances of the present case. The application herein is not moved by an individual, who had been deprived of his fundamental rights by an order dated 4th July, 2011. The application is filed by the Union of India challenging the order on various legal and factual issues.”

Differing with him, Justice Nijjar said that it would not be possible for him to agree with the order passed by Justice Kabir.

He said that “in the present case (July 4, 2011), the directions had been issued after hearing the learned counsel for the parties at length and on numerous dates. These directions, in my opinion, cannot be recalled as an application seeking only modification of the order.”

“In my opinion, the applicant Union of India has failed to make out a case to enable this court to treat the modification application as application for review and proceed to hear the same in open court,” Justice Nijjar said.

“At this stage, it would also not be possible to treat the present application for modification as an application for review.”

Having said that, Justice Nijjar said, “In my opinion, the present application is wholly misconceived. It is, therefore, dismissed. Union of India is, however, at liberty to take recourse to any other legal remedy that may be available to it.”