Rajasthan High Court - Jodhpur
Sita Ram vs State on 2 February, 2012
Author: R.S. Chauhan
Bench: R.S. Chauhan
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IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
S.B. CRIMINAL MISC. PETITION No.1075/2011
Sita Ram V/s. State of Rajasthan
S.B. Criminal Misc. Petition under
Section 482 of the Criminal Procedure
Code, 1973
Date of Judgment :: February 2nd, 2012
HON'BLE MR. JUSTICE R.S. CHAUHAN
Reportable Mr. A.K. Rajvanshy for the petitioner.
Mr. Mahipal Bishnoi PP for the State.
Aggrieved by certain strictures passed by this court in judgment dated 12.03.2010, the petitioner, a judicial officer, has approached this court for expunging the same.
The brief facts of the case are that the petitioner was posted from June 2008 to June 2011 as District & Sessions Judge-cum-Special Judge, SC/ST (Prevention of Atrocities Act) Cases at Jalore. During this period, vide order dated 09.11.2009, he framed charges against one 2 Mahendra Singh for offences under Sections 279 and 304 IPC and for offence under Section 3(2)(v) of SC/ST of Prevention of Atrocities Act. Since Mahendra Singh was aggrieved by the said order, he filed a revision petition before this court. Vide judgment dated 12.03.2010, while accepting the revision petition and while quashing the order dated 09.11.2009, a learned Judge of this Court made certain disparaging observations which are as under :-
"In view of the above legal position, the impugned order passed by the learned Sessions Judge Jalore seems to be totally illegal, perverse and contrary to the provisions of law. I am sanguine that the learned Sessions Judge by now must have put in more than 20 years of service. It is shocking that after putting such a long period of service, he has not been able to make a distinction between rash and negligent act and the act done intentionally or with knowledge. I am afraid how could he afford to frame the charges in the offences under Section 279 and 304 of IPC together whereas the gravement or nucleus of both the offences are distinct in nature."
As a consequence of the said observations, according to the petitioner, on 26.04.2011 a charge-sheet has been issued against him. Hence, his prayer that the observations made by the learned Judge, which tantamount to strictures against him, should be expunged. 3
Mr. Mahipal Bishnoi, the learned Public Prosecutor, has raised a preliminary issue with regard to the maintainability of this petition. According to the learned counsel, this petition seeks to review the judgment dated 12.03.2010. However, the power to review is non-existent in criminal law. Hence, the petition is not maintainable.
On the other hand, Mr. A.K. Rajvanshy, the learned counsel for the petitioner, has drawn a distinction between recall and review. While recalling an order, the Court does not deal with the merit of the case; in reviewing an order/judgment, the Court deals with the merits of the case. In order to buttress this contention, the learned counsel has relied on the case of Vishnu Agarwal V/s. State of U.P. & Anr. [AIR 2011 SC 1232]. According to the learned counsel, while deleting the strictures, this Court is not required to go into the merits of the case. Hence, this Court would be exercising the power to recall, and not the power of review.
Heard the learned counsel for the parties on the preliminary objection.
In the case of Asit Kumar Kar V/s. State of West Bengal & Ors. [AIR 2009 SC (Supp) 282], a distinction was made by the Hon'ble Supreme Court 4 between the recalling of an order, and reviewing of an order. The Hon'ble Supreme Court observed, "while in review petition, the Court considers on merits, where there is an error apparent on the face of the record, in a recall petition the Court does not go into the merits but, simply recalls an order which was passed without giving an opportunity of hearing to an affected party". Recently, the same view has been reiterated by the Hon'ble Supreme Court in the case of Vishnu Agarwal (supra).
In the present case, this Court is not required to go into the merits of the case, but is merely required to recall the observations made by this Court - observations made without giving an opportunity of hearing to the judicial officer. Therefore, this court is not reviewing the order dated 12.03.2010. It is merely exercising the power to recall an order. Hence, the objection raised by the learned Public Prosecutor is unacceptable.
Mr. A.K. Rajvanshy, has further contended that the observations were made by this Court, with regard to the judicial officer's acumen and functioning as a judicial officer, without issuing any notice to him. Thus, the basic principle of natural justice - to hear the other side - has been violated. Secondly, there was nothing on record available before this court for making the said 5 observations. Therefore, the observation is not based on any evidence. It is merely an opinion which has created difficulties for the judicial officer in his service career. Thirdly, such an observation was not even necessary for the just decision of the case. Fourthly, due to the said observations, the Judicial Officer is facing a departmental inquiry, as a charge-sheet has been issued to him, on 26.04.2011. Lastly, relying upon the cases of 'K' a Judicial Officer, [AIR 2001 SC 972], Prakash Singh Teji V/s. Northern India Goods Transport Co. Pvt. Ltd. & Anr. [AIR 2009 SC 2304] and on the case of Mahesh Chand Bhagwati V/s. The State of Rajasthan [S.B. Criminal Misc. Petition No.188/2001 - decided on 22.02.2001], the learned counsel has contended that repeatedly the Courts have opined that strictures should not be passed against a person without giving him an opportunity of hearing. Moreover, such strictures not only demoralize the judicial officer in particular, but also undermine the subordinate judiciary in general.
In all fairness, the learned Public Prosecutor has conceded that strictures cannot be passed by a Court without giving an opportunity of hearing to the concerned person. The learned Public Prosecutor has also fairly conceded that while passing the strictures against the 6 judicial officer, no notice was given to him by this court.
In the case of A.M. Mathur V/s. Pramod Kumar Gupta [(1990) 2 SCC 533], the Hon'ble Supreme Court has observed as under :-
"Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restrain in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other co-ordinate branches of the State, the executive, and legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process."
Thus, the Apex Court sounded a note of caution emphasising a general principle of highest importance for the proper administration of justice that derogatory remarks ought not to be made against persons or authorities, whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.
In the case of "K" a Judicial Officer (supra), the Apex Court observed as under :-
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7. A judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression to his views and constructing his judgment or order. It should be no deterrent to formation and expression of an honest opinion and acting thereon so long as it is within four-corners of law that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior forum with which its opinion may not meet approval and the superior court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence. However, sobriety, cool, calm and poise should be reflected in every action and expression of a judge.
8. The primary purpose of pronouncing a verdict is to dispose of the matter in controversy between the parties before it. A judge is not expected to drift away from pronouncing upon the controversy, to sitting in judgment over the conduct of the judicial and quasi-judicial authorities whose decisions or orders are put in issue before him, and indulge into criticising and commenting thereon unless the conduct of an authority or subordinate functionary or anyone else than the parties comes of necessity under review and expression of opinion thereon going to the extent of commenting or criticising becomes necessary as a part of reasoning requisite for arriving at a conclusion necessary for deciding the main controversy or it becomes necessary to have animadverted thereon for the purpose of arriving at a decision on an issue involved in the litigation. This 8 applies with added force when the superior court is hearing an appeal or revision against an order of a subordinate judicial officer and feels inclined to animadvert on him.
The Apex Court further observed as under :-
11. Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests :- (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve.
The Apex Court has further opined as under :-
The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable 9 of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in open and therefore becomes public. The same judge who found himself persuaded, sitting on judicial side, to make observations guided by the facts of a single case against a subordinate judge may, sitting on administrative side and apprised of overall meritorious performance of the subordinate judge, may irretrievably regret his having made those observations on judicial side the harming effect whereof even he himself cannot remove on administrative side. Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the judge who had decided the case against him. This is subversive of judicial authority of the deciding judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court - a situation not very happy from the point of view of the functioning of the judicial system. May be for the purpose of pleading his cause he has to take the assistance of a legal practitioner and such legal practitioner may be one practising before him. Look at the embarrassment involved. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralising effect not only on him but also on his colleagues. If all this is avoidable why it should not be avoided?10
In the case of Prakash Singh Teji (supra), the Hon'ble Supreme Court has observed as under :-
Our legal system acknowledges the fallibility of the Judges, hence it provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity, however, sometimes is likely to err. It has to be noted that the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure. They do not have the benefits which are available in the higher courts. In those circumstances, remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put forth his reasonings.
Applying the test laid down by the Hon'ble Supreme Court, admittedly before the observations were made by the learned Judge, no notice was issued by this Court to the Judicial Officer. Hence, the Judicial Officer was not given an opportunity to defend himself. Obviously, an adverse observation could not be made against the judicial officer without giving him an opportunity of hearing. For, to do so is to violate the principle of audi alteram partem - to hear the other side. The Judiciary is expected to uphold the rule of law. It cannot afford to violate the rule of law within its own house. Therefore, before making the said observations, in the interest of justice, a notice should have been given to the judicial officer.11
Secondly, there is no evidence on record which has any bearing on the conduct of the judicial officer. Even if the judicial officer had made a mistake, in applying the correct law, there was no need for this court to make a comment on his legal acumen.
Thirdly, the observations were certainly not necessary for the decision of the case. After all, the case ended when this Court observed that the offence under Section 279 IPC and an offence under Section 304 IPC stand on two different levels. While Section 279 IPC requires negligence and rashness, offence under Section 304 IPC requires intention and knowledge. Hence, according to this Court, the officer was not justified in framing the charges for both the offences simultaneously, as both the offences require two different and distinct mens rea. Hence, the observations made thereafter were not integral to, or essential for, the decision of the case.
Lastly, the observation, which was made behind the back of the judicial officer, has adversely affect his service, as a charge-sheet has been issued to him on 26.04.2011.
Hence, this Court expunges the observations made by this Court against the petitioner on page No.5 -
"I am sanguine that the learned Sessions Judge by now 12 must have put in more than 20 years of service. It is shocking that after putting such a long period of service, he has not been able to make a distinction between rash and negligent act and the act done intentionally or with knowledge. I am afraid how could he afford to frame the charges in the offences under Section 279 and 304 of IPC together whereas the gravement or nucleus of both the offences are distinct in nature", vide judgment dated 12.03.2010. Hence, the said judgment shall be read as though these observations do not exist.
For the reasons stated above, this petition is, hereby, allowed.
(R.S. CHAUHAN) J.
A.Asopa/-