Madras High Court
D.Ramagopal vs State By on 30 April, 2008
IN THE HIGH COURT OF JUDICATURE AT MADRAS DATE: 30.4.2008. CORAM THE HON'BLE MR.JUSTICE M.JEYAPAUL Crl.O.P.SR No.9647 of 2008 and Crl.M.P.SR No.9648 of 2008 D.Ramagopal Petitioner vs. 1. State by Inspector of Police, G-3 Kilpakkam Police Station, Chennai. 2. Thiru.R.Pongiyappan, II Metropolitan Magistrate, Egmore, Chennai. Respondents Criminal Original Petition filed under section 482 and 483 Cr.P.C. seeking to call for the records in C.C.No.10224 of 2001 on the file of the learned II Metropolitan Magistrate, Chennai and restrain Thiru.R.Pongiyappan, learned II Metropolitan Magistrate, Chennai from functioning in his present position. For petitioner : Mr.A.E.Chelliah, Senior Counsel for M/s.C.Vasanthakumari Chelliah Amicus Curiae : Mr.B.Sriramulu, Senior Counsel For respondent : Mr.A.Saravanan, Govt. Advocate (Crl. Side) ORDER
Crl.O.P.SR.No.9647 of 2008 is presented by the petitioner invoking the provisions under sections 482 and 483 of the Code of Criminal Procedure not only to call for the records in C.C.No.10224 of 2001 on the file of the learned II Metropolitan Magistrate, Chennai but also to restrain Thiru.R.Pongiyappan, learned II Metropolitan Magistrate, Chennai from functioning in his present position and Crl.M.P.SR No.9648 of 2008 is presented by the petitioner to pass an interim order restraining the said Judicial Officer from functioning in the present position pending disposal of the aforesaid petition.
2. While scrutinising the averments in the petitions and the prayers sought for by the petitioner, the registry returned the petitioners with the following endorsement:-
"1) Prayer needs corrections.
2) It may be stated as to how the second respondent has been impleaded as a party to the proceedings."
Learned counsel appearing for the petitioner re-presented the papers reiterating his stand that the petition filed invoking the provision under section 483 of the Code of Criminal Procedure is quite maintainable inasmuch as the High Court has the authority under section 483 of the Code of Criminal Procedure to supervise whether the Judicial Magistrate acts with competency and intellectual honesty.
3. Shri.B.Sriramulu, Senior Counsel was requested to act as amicus curiae considering the importance of the issue involved in this matter. Learned Government Advocate (Criminal Side) Mr.A.Saravanan was also directed to assist this court to arrive at a decision. Both of them efficiently putforth their submissions in a commendable way. Their contribution is placed on record.
4. Learned Senior Counsel Mr.A.E.Chelliah appearing for the petitioner would contend that intellectual dishonest and gross incompetency of a Judicial Officer will not come to light if there is no superintendence by the High Court as contemplated under section 483 of the Code of Criminal Procedure. Here is a case where the petitioner, having highlighted the various lapses on the part of the learned II Metropolitan Magistrate, Chennai, would contend that the learned Metropolitan Magistrate has committed judicial impropriety and intellectual dishonesty and such a Judicial Magistrate shall not be permitted to function any more as II Metropolitan Magistrate, Chennai. The High Court has ample power under section 483 of the Code of Criminal Procedure to restrain such a Judicial Magistrate from functioning as such, he would further contend.
5. Learned Senior Counsel Mr.B.Sriramulu would submit that ample protection is there for the Judges including the Judicial Magistrates under section 3 of the Judges (Protection) Act, 1985. No proceedings can be proceeded as against a Judge for the discharge of his official or judicial duty or function. A Judicial Magistrate can be restrained from performing his function only by way of suspension or by dismissal as a result of a departmental disciplinary proceedings initiated as against him under the Conduct Rules. The supervisory authority conferred on the High Court under section 483 of the Code of Criminal Procedure would be available for the High Court only to ensure the expeditious and proper disposal of the cases by him. A Judicial Officer cannot be impleaded as a party when he had not performed any executive function. All the judicial functions discharged by him can be challenged only by way of appeal or revision before the appellate or revisional forum concerned. In a very bizarre way, the provision under section 483 of the Code of Criminal Procedure is quoted for filing a petition which is not at all sustainable in the eye of law to dethrone a judicial functionary.
6. Learned Government Advocate (Criminal Side) would vehemently submit that a relief of quo warranto has been sought in the garb of section 482 of the Code of Criminal Procedure. No authority on earth can restrain a Judicial Magistrate from discharging his judicial function or unseat him from the judicial office unless he is found guilty in a departmental proceedings initiated as against him. In a battle waged by two litigants, a Judicial Officer cannot be witchhunted for the discharge of his judicial function. If the petitioner is aggrieved as against any of the orders passed by the Judicial Magistrate, the petitioner has to work out his remedy only before the appellate or revisional forum. The petitioner has virtually launched a collateral attack on the very independence of the judiciary. No Judicial Officer can be terrorised for the judicial function he has discharged by impleading him in criminal proceedings. Therefore, he would submit that the criminal proceedings now initiated as against him invoking the provision under sections 482 and 483 of the Code of Criminal Procedure cannot stand the legal scrutiny.
7. This court has got inherent powers under section 482 of the Code of Criminal Procedure to make orders to prevent the abuse of the process of any court and also to secure the ends of justice. The High Court shall also exercise its superintendence over the courts of Judicial Magistrates subordinate to it to ensure that there is expeditious and proper disposal of cases by such Magistrates under section 483 of the Code of Criminal Procedure.
8. It is relevant to refer to section 3 of the Judges (Protection) Act, 1985 which reads as follows:-
"Additional protection to Judges--
(1) Notwithstanding anything contained in any other law for the time being in force and subject to the provision of sub-section (2), no court shall entertain or continue any civil or criminal proceeding against any person who is or was a Judge for any act, thing or word committed, done or spoken by him when, or in the course of acting or purporting to act in the discharge of his official or judicial duty or function.
(2) Nothing in sub-section(1) shall debar or affect in any manner, the power of the Central Government or the State Government or the Supreme Court of India or any High Court or any other authority under any law for the time being in force to take such action (whether by way of civil, criminal or departmental proceedings or otherwise) against any person who is or was a Judge."
9. Any Judicial Officer for that matter whether he is serving or retired from service cannot be prosecuted for the discharge of his official or judicial duty or function. Of course, the Central Government or the State Government or the Supreme Court or any High Court or any other authority under any law for the time being in force may take some action against the Judicial Officer serving or retired. But, definitely a litigant cannot implicate a Judicial Officer for the discharge of his judicial function.
10. The scope of section 483 of the Code of Criminal Procedure is very limited. The High Court has the superintending authority over the Judicial Magistrate to ensure expeditious and proper disposal of the cases. The supervisory power conferred under section 483 of the Code of Criminal Procedure cannot be extended to find whether the Judicial Officer has committed impropriety or intellectual dishonesty or incurred gross incompetency. If the Judicial Magistrate exhibits lethargic tendency and dodges the disposal of a case, of course, under the supervisory authority conferred under section 483 of the Code of Criminal Procedure, the High Court can give a direction to speed up the disposal of the case in a proper manner as per law. But, the demeanor and the conduct of unbecoming of a Judicial Officer or the judicial impropriety or gross incompetency or intellectual dishonesty can be probed into only in a departmental proceedings initiated by the High Court on a specific complaint received from some source. The ambit of section 483 of the Code of Criminal Procedure is quite outlandish to the aforesaid disciplinary proceedings which can be initiated as against a Judicial Officer by the Department.
11. It is beneficial to refer to the interesting observation of the Supreme Court in ANOWAR HUSSAIN v. AJOY KUMAR (AIR 1965 SC 1651) which is as follows:-
"In this appeal, the only question raised is that in ordering the arrest of the respondent the appellant acted in discharge of his judicial duties, and he was on that account protected by the Judicial Officers' Protection Act, 1850, Section 1 of the Act, in so far as it is material, provided:
"No Judge, Magistrate, *** Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction; Provided that he at the time, in good faith, believed himself to have jurisdiction to do or order the act complained of; ***"
The statute is clearly intended to grant protection to Judicial Officers against suits in respect of acts done or ordered to be done by them in discharge of their duties as such officers. The statute, it must be noticed, protects a Judicial Officer only when he is acting in his judicial capacity and not in any other capacity. But within the limits of its operation it grants large protection to Judges and Magistrates acting in the discharge of their judicial duties. If the act done or ordered to be done in the discharge of judicial duties is within his jurisdiction, the protection is absolute and no enquiry will be entertained whether the act done or ordered was erroneously, irregularly or even illegally, or was done or ordered without believing in good faith, that he had jurisdiction to do or order the act complained of. If the act done or ordered is not within the limits of his jurisdiction, the Judicial Officer acting in the discharge of his judicial duties is still protected, if at the time of doing or ordering the act complained of, he in good faith believed himself to have jurisdiction to do or order the act. The expression "jurisdiction" does not mean the power to do or order the act impugned, but generally the authority of the Judicial Officer to act in the matter;"
12. The Supreme Court referring to the Judicial Officers' Protection Act, 1850, the old Act which was earlier in vogue, has unambiguously and authoritatively held that the protection of Judicial Officer when he discharged his duties as Judicial Officer given under the Act was absolute. No litigant can prosecute him, as otherwise every litigant who is aggrieved by the order passed by a Judicial Officer will array him as one of the parties in a proceedings.
13. The Supreme Court in GOKARAJU RANGARAJU v. STATE OF A.P. (AIR 1981 SC 1473) has held as follows:-
"The defective appointment of a de facto Judge may be questioned directly in a proceeding to which he may be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the Judge except as a Judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a Judge to his office. Otherwise as soon as Judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the Judge is no Judge. A Judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a Judge's appointment in an appeal against his judgment is, of course, such a collateral attack."
That was a case where a litigant has chosen to challenge the very appointment of a Judge who dealt with his case. The Supreme Court has come down heavily upon such a practice adopted by a litigant.
14. In RUPA ASHOK HURRA v. ASHOK HURRA ((2002) 4 SCC 388), the Supreme Court has held that even after the disposal of a review petition, the Supreme Court has got inherent powers to reconsider the decision already arrived at through a curative petition to prevent the abuse of process of court and to cure a grave miscarriage of justice.
15. The aforesaid authority cited by the learned Senior Counsel appearing for the petitioner does not have any relevance to the point in issue before this court. The question that has arisen before this court is whether a litigant can seek for restraining a Judicial Magistrate from functioning as such. The aforesaid discussions and authorities cited by this court would make it crystal clear that a litigant has no right to seek for a direction to restrain a Judicial Officer from discharging his judicial function arraying him as a party. If such a practice is encouraged, every litigant, immediately after some order is passed against his interest, would come to the higher forum arraying the Judicial Officer also as one of the parties and would start harassing him, intimidating and terrorising him which will definitely affect the very independence of the judiciary. Further, the Judicial Officer, in such circumstances, will have to face many a litigation before various higher fora and he would have no time to discharge his judicial function. He cannot be made a party to a proceeding at the pleasure of a litigant. This is indirectly a mounting pressure on him which will create a dent in his independent discharge of duty. A Judge shall not shudder to dispose of a case in a fair and impartial manner.
16. The supervisory power conferred under section 483 of the Code of Criminal Procedure cannot be invoked by a litigant to restrain a Judicial Officer from discharging his function. As rightly pointed out by the learned Government Advocate (Criminal Side), the petitioner has virtually sought for quo warranto prayer as against the Judicial Officer who has discharged his judicial function. If any fallacy or apparent error is there in the order passed by the Judicial Magistrate, it is upto the petitioner to take up the matter either in revision or in appeal, as the case may be. It is to be reminded that the three tier system is there in the judiciary only to take care of the grievance of the litigating parties as against the order passed by the Judges.
17. In view of the above, the Crl.O.P.SR and Crl.M.P.SR stand rejected as not maintainable.
30.4.2008.
Index: Yes.
Internet: Yes.
ssk.
To
1. II Metropolitan Magistrate, Chennai.
2. Inspector of Police, G-3 Kilpakkam Police Station, Chennai.
M.JEYAPAUL, J.
Ssk.
P.D.ORDER IN Crl.O.P.SR 9647 and Crl.M.P.SR 9648 of 2008 Delivered on 30.4.2008.