Sitting on a High Court division bench, they heard a case together and reserved the order. But then according to one judge, the other — the more senior member — pronounced the judgment before he could add his views. The upset judge went on to pen a dissenting verdict, making evident his strong displeasure.
In his October 3 dissenting judgement, Justice K K Sonawane of the Aurangabad bench of the Bombay High Court said: “I did not receive any opportunity to go through the judgment authored by Senior Member of the Bench (Shri T V Nalawade, J.) nor the draft of the same was forwarded to me for perusal”. He called it a “glaring example of lack of coordination, lack of consultation, deliberation or discussion on the matter-in-issue amongst judges of this Division Bench prior to pronouncement of judgment into the matter pending for its adjudication on merit.”
This happened when the bench of Justices Nalawade and Sonawane was seized of pleas seeking a probe into allegations of graft in the repair works of a road. While both judges agreed on the question of continuing the police probe, the difference was over the approach to charges against certain PWD officials.
Justice Sonawane said the Supreme Court, while discussing the mode and manner of writing a judgment and its pronouncement, had laid down that “after conclusion of hearing, if the judgment is reserved or the matter is closed for judgment, it is open to the judges on the bench to discuss, change their opinions, modify or persuade each other to take a particular view until a judgment is made ready, signed and pronounced in the open court.”
He wrote that in the graft matter before the bench, “unfortunately… there was no occasion for such deliberation or discussion on merits of the matter for tentative conclusion”.
“The petitions were kept reserved for judgment since 28-08-2019,” he said. “The petitions were listed directly on the cause list dated 18-09-2019 without giving any prior intimation to me,” Justice Sonawane said, adding “the pronouncement was made in a very cryptic and obscure manner” on September 18 “by simply declaring “both the petitions are allowed”.
Justice Sonawane said “at the time of pronouncement of judgment in open court, I raised objection that ‘how the petitions are allowed?’, that time I was advised to go through the reasoning part of the Judgment scribed by him”. He said “the judgment was pronounced in such a post-haste manner that I could not avail the opportunity to express my dissent view/opinion at that time”.
“Thereafter, the Judgment of petitions was placed before me for signature in the evening hours in my chamber. I was aghast on perusing the expressions discernible from the judgment particularly against the functions of Government personnel as well as specific direction to ACB about permission for investigation and to police for investigation against public servants of Public Works Department (PWD) and to file the case, etc. According to me, all these are not legally permissible by exercising writ jurisdiction under Article 226 of the Constitution of India. In case such directions are issued to investigating agency, it would amount to cause interference in the investigation. These circumstances did not persuade me to share responsibility of alleged findings expressed by Senior Member of this Bench. Therefore, I refused to put my signature on the Judgment authored by him and kept reserved my legitimate right to express dissent view/opinion within ambit of law,” he wrote.
The petitions filed by Prashant Bamb, who was a BJP MLA in Maharashtra, through advocate Sachin S Deshmukh, alleged “fraud and mischief in the renewal and repairing works of the Kalyan-Ahmednagar-Parbani-Nanded-Nirmal road”.
Justice Nalawade concluded that such offences “cannot be committed unless there is connivance of officers” and it was open for police to investigate the role of PWD officials too and that the ACB could take over to probe charges of disproportionate assets once police confirmed the charges. He was also critical of the role of the government authorities in the case.
Justice Sonawane, however, was of the view that since the police probe was already on, pursuant to filing of FIRs and it was at an “initial stage”, “it would be preposterous and incomprehensible to issue such kind of direction to investigating agency to file case against PWD officials by keeping open the field for investigation against them”.
He said that the absence of name of PWD officials in the FIR “does not preclude the investigating agency to carry out the investigation against them” if necessary.
Advocate A B Girase, the public prosecutor in the case, told The Indian Express that when there is a difference of opinion between two judges, the matter is placed before a third judge who may agree with one of the views which then becomes final. He said that “there has not been any order from the Registry so far placing it before a third judge”. Repeated calls to the HC Registry went unanswered.