Explained: Why Delhi police couldn't register criminal case against Justice Yashwant Varma over cash recovery row?

The fire at the residence of then Delhi High Court Judge Justice Yashwant Varma on March 14 has left several questions unanswered, including why even after two weeks, there is no police action in the case and no FIR as yet. Justice Varma was recently transferred to Allahabad High Court, however, no judicial work has been assigned to him.

Under the Constitution, only the president and governors are granted immunity from criminal prosecution. But then, there are other provisions that put a check on police action against a sitting High Court or Supreme Court judge. The police cannot slap an FIR on a sitting High Court or Supreme Court judge owing to a 1991 Supreme Court ruling which mandates the chief justice of India must grant permission for police to proceed further. It’s a safeguard to stop frivolous cases from clogging the courts or targeting judges unfairly. 

In the 1991 case, a complaint was made to the CBI against K. Veeraswami, a former High Court chief justice, following which a case was registered against him under provisions of the Prevention of Corruption Act 1947.

A five-judge constitution bench had then ruled, “Due regard must be given by the government to the opinion expressed by the chief justice. If the chief justice is of the opinion that it is not a fit case for proceeding under the Act, the case shall not be registered. If the CJI himself is the person against whom the allegations of criminal misconduct are received, the government shall then consult any other judge or judges of the Supreme Court." 

In another case, while dealing with allegations of sexual harassment, the top court in 2014 laid down an in-house procedure to probe allegations against a judge of constitutional courts. 

"If the committee has concluded that there is substance in the allegations for initiation of proceedings for the removal of the judge concerned, the CJI shall proceed as under: The judge concerned will be advised, by the CJI, to resign or to seek voluntary retirement; in case the judge concerned does not accept the advice of the CJI, the CJI would require the chief justice of the High Court concerned, not to allocate any judicial work to the judge concerned," the guidelines stated.

“If the judge concerned did not abide by the advice of the CJI to resign, the CJI would intimate the president and the prime minister about the findings of the committee, warranting initiation of impeachment.”

The in-house process in Justice Varma’s case is underway but it operates behind closed doors. Although the Supreme Court released initial documents—an unprecedented move—the committee’s deliberations and final report remain secret unless made public by the CJI. 

At present, the in-house committee is analyzing CCTV footage, interviewing staff, and assessing forensic evidence, with its members visiting Varma’s Delhi residence on March 25. The Supreme Court has directed Varma to preserve his phone data and sought security records from the past six months, indicating a thorough probe. 

It is reliably learnt that in Justice Varma’s case, the Delhi police commissioner apprised the chief justice of the Delhi High Court of the findings of the police control room and fire department, including photographs and videos of the cash allegedly found in the storeroom of his official residence. But, an FIR can be registered in the case only when the government—in this case the Union law ministry—consults the CJI on the issue and the latter deems it a case for police investigation.

Till such time, the Delhi police cannot take any action, adding to the continued slug fest over who will bring clarity to the case. Two weeks later, all eyes are on  Chief Justice of India Sanjiv Khanna who has ordered a three-member committee report to probe the allegations. There is no fixed timeline for the committee to complete the probe.