Bombay High Court
State Of Maharashtra Through Shri S.S. ... vs R.A. Khan, Chief Jdl. Magistrate ... on 23 September, 1992
Equivalent citations: 1993(1)BOMCR118, 1993CRILJ816
JUDGMENT A.A. Desai, J.
1. On a reference purported to be under sub-sec (2) of S. 15 of the Contempt of Courts Act, made on 7-5-1991, by the Sessions Judge, Wardha, these proceedings are initiated. The precise facts leading to this reference, are as thus :
Nine persons were charged vide Crime No. 48/90 for the offence punishable under Ss. 376(2)(g), 377, 354 read with S. 34 of I.P.C. Amongst them the accused Sandeep, Alokkumar, Ravindra and Sanjay, during the pendency of investigation, applied for grant of bail. The Additional Sessions Judge by order dated 17-2-1990 rejected their application. They then approached to this Court and the applications came to be rejected on 19-3-1990. Thereafter they applied to the Supreme Court. By order dated 30-3-1990 their applications were rejected. It is reported that thereafter on completion of investigation charge-sheet was filed.
2. The contemnor/respondent Mr. R. A. Khan was at the relevant time, Chief Judicial Magistrate at Wardha. He was made aware of these orders of rejection. Accused No. 3 Rajendra again on 3-5-1990 applied for grant of bail. The contemnor by order dated 17-5-1990 released him on bail. The contemnor on 22-5-1990 rejected the bail application of accused Sanjaykumar, Sandeep and Alokkumar on the ground of prima facie case of gang rape, was made out against them. These accused persons engaged another counsel and again applied for bail. The contemnor on 30-5-1990 released Alokkumar, Sanjaykumar and Sandeep on bail.
3. The Chief Judicial Magistrate was under the order of transfer and he handed over the charge on 31-5-1990 afternoon. The Sessions Judge, treating the act of contemnor as willful and deliberate disobedience, issued a show cause notice. The Contemnor in reply stated that the orders passed by him were judicial. Even if there were jurisdictional error, it would not amount to contempt. The orders are passed in good faith. According to the reference, the respondent/Chief Judicial Magistrate has committed a criminal contempt. This Court took cognizance and issued notices. In reply dated 3-8-1992, the contemnor Mr. R. A. Khan made an endeavour to justify the orders as passed.
4. Shri Sirpurkar, the learned counsel, agitated for quite some time that there was no bar entertain the subsequent application for grant of bail. The orders of rejection of bail to the accused as passed by the Supreme Court, High Court or Sessions Judge, had not created any prohibition. Moreover, the Chief Judicial Magistrate was competent and within jurisdiction to release accused persons on bail, if it is noticed that prima facie no offence triable by the Sessions Judge is made out. After agitating for quite some time, Mr. Sirpurkar has abandoned the reply and withdrew the stand as taken.
5. Today the contemnor Shri R. A. Khan filed fresh reply. He says that by reply dated 3-8-1992, he never intended to justify the orders in question. He realised that it was improper on his part to pass those orders. He has tendered unconditional and unqualified apology for having passed those orders. He prayed that the apology be accepted in the spirit of repentance.
6. The state of affairs as reflected are certainly disturbing. Undisputedly, the offence as disclosed in the charge-sheet was triable by the Sessions Judge. Apparently, it was beyond the jurisdiction of the Chief Judicial Magistrate to entertain the application for bail. He also made a venture to appreciate the material. Illegality which is patent, in passing the orders, is writ large. The orders in question are absolutely without any properiety. It also lack sense of responsibility. Illegality in judicial exercise, according to us by itself may not constitute a contempt unless it is in good faith or owing to bona fide error.
However, apart from the absence of jurisdiction, the learned Chief Judicial Magistrate released the accused persons on bail on the face of verdicts successively given by the High Courts. He had a conscience knowledge of those orders. This venture of the Chief Judicial Magistrate is certainly derogatory to well defined judicial responsibility. It lacks both good faith and bona fide. It is well intended deliberate and tainted with suspicion also. It tends to exhibit utter disregard to the judicial authority of the Courts in high rank. From the narration of events in the reference which are not controverted the act of the respondent is explicitly well calculated with a design to undermine the authority of the Higher Court. We, therefore, hold the contemnor Shri R. A. Khan guilty of having committed the contempt.
7. Equally perturbing feature we would like to mention is that the respondent passed orders on 30/5/1990 when he was under order of transfer. We do not wish to suggest that the Judicial Officers under order of transfer are without any authority. Beside the authority one cannot afford the unmindful of the preciousness of propriety. In the instant case accused were in jail since long. There was no urgent or pressing need to pass the orders so hurriedly. Such style of functioning invite clout and likely to make the judicial authority venerable. We are constrained to observe that the Judicial Officers under the order of transfer should ordinarily exercise high degree of restrain. Passing or order of vital importance at the end of tenure at a station may in most probability promote whisper and speculation adverse to integrity and decency.
8. Mr. Sirpurkar, the learned counsel, made a submission that the contemnor Shri Khan is also a part of the judiciary and has at credit 14 years judicial career. During this period his record was free from blemish except one occasion of adverse entry in his confidential report. He has a repentance for the act in question and tendered unconditional apology, which be accepted. We gave our conscious consideration to all these aspects, and the apology tendered today.
9. We have as discussed held Shri R. A. Khan guilty of having committed contempt. However, taking all these aspects into account and particularly the judicial career of Mr. R. A. Khan, we accept the apology. We warn him that hereinafter he shall exercise more care while functioning as judge.
10. Order accordingly.