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Panel concludes hearing in Judge's removal proceedings

J. Venkatesan

New Delhi: Right of silence' as a defence is not available to Justice Soumitra Sen, Judge of the Calcutta High court, facing the probe before the committee constituted by the Chairman of the Rajya Sabha into the charges of ‘misappropriation,' as these proceedings are akin to contempt of court proceedings, argued senior counsel Siddarth Luthra for the panel.

The panel comprising Supreme Court Judge B. Sudershan Reddy, Chief Justice of Punjab and Haryana High Court Mukul Mudgal and noted jurist Fali Nariman concluded its hearing at the end of his submissions and it is expected to submit its report to the Rajya Sabha Chairman by August 5.

Senior counsel Shekhar Naphade, appearing for Justice Sen claimed ‘right of silence' as a valid defence and said, there was no obligation under law for Justice Sen to come to the witness box and give evidence when the probe pertained to his conduct as a court Receiver and not for his conduct as a judge.

Refuting this contention, Mr. Luthra said, since the present proceedings were akin to contempt of court proceedings, such a defence was not available to him. He pointed out that there was no question of ‘right of silence' as self-defence as every opportunity was given to him to defend himself and since he had chosen not to avail that opportunity an adverse inference could be drawn.

When Mr. Nariman wanted to know whether Justice Sen was not entitled to a benefit of doubt if it was a bona fide act, the counsel said under law even temporary retention of money and failure to submit accounts would amount to criminal breach of trust and if this test was applied Justice Sen was not entitled for the benefit of doubt.

To drive home the point that Justice Sen was not bona fide in his actions, Mr. Luthra pointed out that not a single application was made before the Official Liquidator to claim the fixed deposits kept in the name of a company, which went into liquidation.

At this point Mr. Naphade clarified that the Official Liquidator in his report had clearly mentioned that the fixed deposits were due to Justice Sen and hence there was no need for him to make a separate application.

On the contention that the Calcutta High Court had exonerated Justice Sen holding that there was no misappropriation and that this order had attained finality, Mr. Luthra pointed out that the charge of ‘misappropriation' was not an issue before the single judge and hence the Division Bench had no occasion to deal with it. Even assuming that such an order had been passed to exonerate him, the counsel said since it was obtained through fraud by suppression of material facts and documents, it would not be binding on others.

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