By Prof Upendra Baxi
We live amidst the outcries of alleged popular opinion, and media trials, and pop media surveys about diminishing public confidence in courts and trust and faith in the judiciary, surrounding allegations of “corruption” by Justice Yashwant Varma. One should be wary of those national TV channels who take a snap public opinion poll asking about the trust and confidence in the “judiciary” without even specifying the levels of courts—whether district courts, High Courts, or the Supreme Court. It is sad that the methodologically flawed outcomes then are used to tarnish the legitimacy of the normative labours that all Justices undertake in the production of judicial discourse and the decision.
JUSTICE YADAV’S LONG WALK TO VINDICATION
Worrying still, among shrill demands for a Central Bureau of Intelligence (CBI) investigation, remain the largely unnoticed sufferings of Justice Nirmal Yadav of the Punjab and Haryana High Court, who has been just acquitted by a CBI court in Chandigarh in popularly known the cash-at-judge’s-door case. This was 17 years after the first information report and (lesser period if one takes the indicator of the formal charges on January 18, 2011). She was, and the other accused, were subsequently acquitted on March 29, 2025, of alleged corruption, while one accused died during the trial.
The prosecution, the Court held, had “miserably failed to bring home the guilt of the accused” (para 122) and Justice Yadav said to the press that it is now “for everyone to realise how one suffers”. Her brother, former Haryana minister Captain Ajay Yadav, welcomed the verdict saying it had restored her honour after years of “agony and humiliation.” He emphasised, in a press briefing, that the prolonged legal battle and the accompanying media trial had deeply affected her, but the “judiciary had ultimately upheld justice in her case.” He added: “My sister’s honour has been vindicated by the Court’s order. She had an unblemished career, having served in the district judiciary, then as the Registrar General of the Punjab and Haryana High Court, and finally as a judge of the High Court. This case not only brought immense distress but also curtailed her judicial career.”
ANATOMY OF A MISCARRIAGE: GUILT BY ASSUMPTION
Allegations of judicial impropriety and corruption flew thick and fast linked to the 2008 incident where a bag containing Rs 15 lakh was mistakenly delivered at another judge’s residence. Notwithstanding her defence, and claims, of innocence, she was held guilty by all in the “courts” of media and so-called public opinion.
This was accomplished by the denial of the evidence on record and of the applicability of law and precedent even of the Supreme Court! Regarding the former, there was absolutely no evidence that A-5 (Justice Yadav) “had travelled through the concerned flight. The details of passengers list produced on record nowhere connects it with A-5”. Focussing here only on the latter, it “is fairly settled… that any documentary evidence by way of an electronic record can be proved only in accordance the procedure prescribed under Section 65B of the Evidence Act dealing with the admissibility of the electronic record as has been held by the Apex Court in 2020” [Anwar PV vs PK Basheer and others 2015 (1) SCC Criminal 24 & Arjun Pandit Rao Khotkar vs Kaushanrao Gorantyal & Ors. 2020 (3) SCC Criminal (1).]
The learned Court says the “bulk of the so-called evidence led in this case by the prosecution is hypothetical and assumptions in nature and deserves to be ignored” [Para 103]. The Court further says that: “These are the beads in the chain of circumstances weaved by the investigating agency in this case, which were required to be proved beyond reasonable doubt to establish the theory propounded by the CBI. Incidentally, there is not even a grain of evidence available on record to connect these various dots and establish a foolproof case against the accused. These loose ends have remained loose in this case and they, thus, tend to prove absolutely nothing” [ Para 100, emphasis added].
In case of circumstantial evidence, the circumstances from which conclusion of guilt of the accused is to be drawn, should be fully established, as has been observed by the apex court in Sharad Birdhi Chand Sarda vs State of Maharashtra, 1985 SCR (1) 88, which laid down the five golden principles, i.e. “Pachseel of proof of a case based on circumstantial evidence’’ [Para 98]. No weight absolutely was attached to the fact that the “bag was found carrying currency notes, which fact alerted the Hon’ble Judge…, who lost no time in moving the investigation machinery of the state in motion by reporting the matter to the police” [Para 92].
A QUESTION OF INVESTIGATIVE INTEGRITY
Those who now urge a CBI investigation, instead of an internal judicial investigation as in Justice Varma’s case, must read this decision word by word! Mysterious remains the fact that Justice Nirmal Yadav was acquitted by a CBI court in Chandigarh even though the earlier closure request had been denied.
The Chandigarh Police had registered an FIR on August 16, 2008. As noted, Special CBI Judge Alka Malik heard patiently all the arguments suggesting the guilt of the accused and examined all relevant binding precedents. The prosecution had sought permission from the High Court to re-examine twenty two witnesses, asserting that their testimonies were vital for the just adjudication of the case. However, the High Court allowed to re-examine only six of them. The prosecution had initially cited eighty-four witnesses in the case, of whom sixty-nine were examined.
THE COLLAPSE OF THE CASE: EVIDENCE REJECTED; CLOSURE REVISITED
It bears noting that the closure report was filed by the CBI (on December 17, 2009) because the government refused to grant prosecution action in the matter; after an analysis of the available evidence, the Attorney General of India had observed that “there is not a shred of evidence that the said alleged offences were committed by Sanjiv Bansal, Ravinder Singh and Nirmal Singh in conspiracy with Justice Yadav” and that “the matter had been discussed by the Hon’ble Minister for Law and Justice with the CJI, who had observed that no action was required for the present” [Para 20]. And yet the Investigation Officer re-investigated the matter and proceeded to find otherwise! One must ask whether there is any procedure, and whether it was strictly followed in this case, for any “re-investigation”.
However, the learned Judge did not find a tittle of law or evidence favouring the prosecution. She held that neither the “precedents nor the “evidence”, laid before the Court, “directly link the accused with commission of the alleged offences they are charged with” [Para 120]. Public Prosecutor Narendra Singh argued that the prosecution had proved the case beyond a shadow of doubt, as expected, and counsel Vishal Garg Narwana, appearing on behalf of Justice Yadav, argued that the CBI “falsely implicated” her in the case.
Referring to the earlier closure report in the case, the learned Judge had to say: “It would have been highly appreciable on the part of the premier investigation agency of the stature of Central Bureau of Investigation to stick to its very first stance of filing the closure in the matter in the competent court …“rather than fabricating a highly unworthy… evidence of a witness”… (PW 26) whose “testimony has been proved to have been based upon all improvements, assumptions, presumptions, hypothesis, and all falsehood” [Para 121].
CBI’S CONVICTION RATE AND THE PARADOX OF TRUST
As recently as April 2, 2025, Justice Sudhanshu Dhulia and Justice K Vinod Chandran (in Vinay Aggarwal vs The State of Haryana And Ors 2025 INSC 433) have ruled that the power to transfer cases to the CBI “should be exercised sparingly, cautiously, and in exceptional situations”; this means for the present purposes that the CBI is a highly trusted institution in which the public must have continuous faith—a proposition, though, always contested by the defence counsel.
The CBI, then, may be advised to go in appeal against the entire judgment, but this may prove to be an uphill task. It may instead proceed only to appeal to a higher court to remove the specific strictures passed against it in this judgment. The latter appears to be, if any course of action is needed in the situation, a wiser course of action.
Of course, I remain puzzled by the fact that while CBI has a high conviction rate in the year 2024, the agency’s director Praveen Sood said: “the CBI’s rate of conviction continues to remain 70%” (it “disposed off a record number of 1,466 cases against the inflow of 836 cases, thereby bringing down pendency to all-time low of 970 cases”), it has come under heavy criticism from various sections of the judiciary. The Supreme Court (as per Chief Justice RM Lodha) used a phrase—a “caged parrot”, working on “the whims and wishes of his master, namely the government”—which is now etched in public, academic and journalistic memory. Besides, there is also some literature suggesting that the CBI often engages in “wrongful prosecution”.
WRONGFUL PROSECUTION AND THE RULE OF LAW
There is one reservation which I have concerning the measurement, or the indicator, of acceptable level of enforcement. Since no law is one hundred percent “enforced”, one must indicate what is the tolerably acceptable level of enforcement. This is rarely done and will of course vary with the precise category of each crime. Recently, (April 6, 2024) Justice Ujjal Bhuyan of the Supreme Court refreshingly pointed out (in a public speech) that while, during 2014-2024 the ED (Enforcement Directorate—a multi-disciplinary organization mandated with investigation of offence of money laundering and violations of foreign exchange laws) has lodged “over 5:3 thousand cases (during 2014-2024) it “managed to secure convictions only in 40 such cases”. This conviction rate is rightly described by the learned Justice, as “abysmally low”. In a stark contrast stands the conviction rate of the CBI (according to its Director Pavin Sood) which is estimated at 70 percent. Criminology studies need to probe into such wide disparities, further illuminating a median percentage, at least for serious crimes, by which the conviction rate may measure satisfactory “enforcement.”
Of course, when it comes to liberties and rights of citizens and persons, even one wrongful prosecution is too many, as shown by Dr GK Goswami, IPS, in his recent LLD dissertation (he is also the founding Director, Uttar Pradesh State Institute of Forensic Sciences, and former Joint Director of the CBI). In any event, constitutional values and imperatives, crystallizing the Rule of law suggest even in its most minimal sense that we maintain a distinction between prosecution and persecution and outlaw the latter parading as a marker of civilized law and administration of justice.
—The author is an internationally-renowned law scholar, an acclaimed teacher and a well-known writer
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Prof Upendra Baxi, Justice Nirmal Yadav, Punjab and Haryana High Court, CBI court, CBI, investigation