Allahabad High Court
Komal Prakash, Formerly Additional ... vs State Of Uttar Pradesh Through Chief ... on 23 September, 2005
Author: B.S. Chauhan
Bench: B.S. Chauhan, Shishir Kumar
JUDGMENT B.S. Chauhan, J.
1. The petitioner, a member of the U.P. Judicial Service, has questioned the validity of the order dated 19thApril, 2005, whereby he has been removed from services on grounds of serious misconduct.
2. The petitioner joined the U.P. Judicial Services in 1986 and while working as Civil Judge/Judicial Magistrate, Garhmukteshwar, District Ghaziabad, the petitioner conducted himself in a manner which gave rise to a complaint made against him, and ultimately, the High Court on the administrative side decided to inquire into the alleged misconduct of the petitioner. The petitioner was served with a charge-sheet dated 22ndFebruary, 2002, containing 15 charges, (Annex. 2), which can be broadly classified in three groups.
(i) Entertaining civil suits and granting ex parte interim injunction in exercise of powers under Order XXXIX Rule 1 of the Code of Civil Procedure (in short CPC), in matters relating to recovery of electricity dues, though the civil court had no jurisdiction to grant such a relief or even entertaining the suit in view of the fact that for realisation of the outstanding amounts as arrears of land revenue, recovery certificates had been issued but still petitioner granted ad interim injunction ex parte.
(ii) Allowing the bail applications and releasing the accused persons on bail in cases relating to offences wherein the petitioner had no competence to grant the bail; and thus, exceeded his jurisdiction. Also granting the bail entertaining the 2ndbail applications immediately after rejection of the first bail application on merit. In addition thereto, in another case he rejected the bail application and on the same date entertaining the 2ndbail application granted the interim bail, and subsequently, granted him the bail entertaining the 2ndbail application.
(iii)Entertaining and allowing the review application against his own earlier order on an application under Section 156(3) Code of Criminal Procedure (in short Cr.P.C.)
3. All the charges were found proved by the Inquiry Officer. The report was accepted by this Court and order of punishment was passed after completing all the formalities required in law.
4. The specific charges which were sought to be inquired into can be briefly summarised as follows:-
Charge No. 1 related to the order dated 20.12.1995, while working as Judicial Magistrate, petitioner granted bail to accused Babloo and Balwant in Crime No. 172 of 1995 under Sections 147, 148, 323, 326 and 504 I.P.C., illegally against all judicial norms and propriety knowing that he had no jurisdiction to grant bail in a case under Section 326 I.P.C. as the offence was punishable with life imprisonment.
Charge No. 2 related to order dated 7.1.1998, while working as Judicial Magistrate, petitioner granted bail to accused Lala Ram in Crime No. 435 of 1997 State v. Lala Ram and Ors. under Sections 419, 420, 467, 468, 471 and 120B IPC, illegally against all judicial norms and propriety knowing that he had no jurisdiction to grant bail in the said case.
Charge No. 3 related to the order dated 9.1.1998, while working as Judicial Magistrate, petitioner granted bail to accused Veerpal Singh in Crime No. 435 of 1997 State v. Veerpal Singh and Ors. under Sections 419, 420, 467, 468, 471 and 120B IPC, illegally against all judicial norms and propriety knowing that he had no jurisdiction to grant bail in a case under Sections 467 and 471 IPC.
Charge No. 4 related to order dated 3.5.1998, while working as Judicial Magistrate, petitioner granted bail to accused Khajan Singh in Crime No. 314 of 1997 under Sections 323 and 307, 504 and 506 IPC illegally against all judicial norms and propriety knowing it that the accused remained absent for a long time and he had no jurisdiction to grant bail in a case under Section 307 IPC.
Charge No. 5 related to order dated 3.5.1998, while working as Judicial Magistrate, petitioner illegally set aside his own order dated 2.1.1998 i.e. "Register & Investigate" passed on the application moved under Section 156(3) Cr.P.C. knowing that review of an order was not permissible in criminal cases.
Charge No. 6 related to order dated 1.8.1996, while working as Judicial Magistrate, petitioner granted bail to accused Arif and Rais in Crime No. 218 of 1996 State v. Arif and Ors. under Sections 323, 354 and 452 IPC, illegally against all judicial norms and propriety knowing that on 31.7.1996 he had rejected the first bail application of accused Arif and Rais on merit and no fresh ground was available for allowing second bail application.
Charge No. 7 related to order dated 16.8.1996, while working as Judicial Magistrate, petitioner granted bail to accused Ishtiyaq Ahmed in Crime No. 386 of 1996 State v. Ishtiyaq Ahmed and Ors. under Sections 379, 411 IPC illegally against all judicial norms and propriety knowing that on 12.8.1996 the bail application of co-accused Ismail had been rejected by him on merit.
Charge No. 8 related to order dated 17.8.1996, while working as Judicial Magistrate, petitioner granted bail to accused Tejpal in Crime No. 261 of 1996 State v. Tejpal under Sections 323, 452, 504, 506 IPC, illegally against all judicial norms and propriety knowing that on 16.8.1996 he had rejected the first bail application of co-accused Tejpal on merit and no ground was available for allowing the second bail application.
Charge No. 9 related to order dated 17.8.1996, while working as Judicial Magistrate, petitioner granted bail to accused Kaloo in Crime No. 261 of 1996 under Sections 323, 452, 504, 506 IPC, illegally against all judicial norms and propriety knowing that on 12.8.1996 he had rejected the first bail application of co-accused Kaloo on merits.
Charge No. 10 related to order dated 4.7.1996, while working as Judicial Magistrate, petitioner granted interim bail to accused Lokesh and Shiv Om in Crime No. 38 of 1996, under Sections 147, 323, 452, 504 and 506 IPC, illegally against all judicial norms and propriety knowing that on the same day i.e. 4.7.1996 first bail application of accused Lokesh and Shiv Om had been rejected by him on merit and on 16.7.1996 he finally allowed the second bail application of accused persons.
Charges No. 11 to 15 related to entertaining the suits and passing ex parte interim orders by the petitioner, on different dates in the cases where recovery certificates had been issued for recovery of outstanding electricity dues as arrears of land revenue, and the suits were not maintainable because of the bar under the provisions of Sections 287A and 330 of the U.P. Zamindari Abolition and Land Reforms Act.
5. The petitioner submitted his reply to the charge-sheet on 7thMarch, 2002 (Annex. 3). The Inquiry Officer conducted the inquiry and a report dated 5.1.2004 (Annex.4) was prepared. The petitioner was served with a copy of the inquiry report and was called upon to furnish his explanation/comments in respect thereof. A reply was submitted on 28.5.2004 (Annex. 5).
6. The Administrative Committee of the High Court accepted the report of the Inquiry Officer and also found the charges established against the petitioner. The inquiry officer found the petitioner responsible for having acted without jurisdiction and passing orders on the judicial side which were not at all permissible in law. However, the Inquiry Officer did not find any actual proof of extraneous consideration to be the basis of the passing of the orders by the petitioner.
7. In the meeting of the Full Court dated 5thFebruary, 2005, the matter was considered and a resolution was passed for imposing the extreme punishment of removal from service against the petitioner. The petitioner straight way filed a writ petition before the Apex Court being Writ Petition No. 415 of 2005 which was not entertained and was dismissed on 25.8.2005 giving liberty to the petitioner to approach the High Court.
8. Shri Murli Dhar, learned Senior Counsel appearing for the petitioner has submitted that in view of the fact that Inquiry Officer had recorded a finding that though the petitioner acted without jurisdiction, but there was no proof of acceptance of any illegal gratification or passing the orders for extraneous consideration, then it was neither desirable nor permissible for the Court to impose such a severe punishment. More so, judicial orders can always be corrected in appeal/ revision, therefore, for every judicial error, holding an inquiry, amounts to a measure in the hands of the Court to demoralise a judicial officer. The punishment imposed is disproportionate to the delinquency found proved, and thus, the order of removal from service is liable to be quashed.
9. Shri K.R. Sirohi, learned counsel appearing for the High Court and Shri C.K. Rai, learned Standing Counsel for the State have submitted that in case the petitioner after serving for 10 years did not know that the power of review was not available in criminal law, he was not fit for retention in judicial service at all. There cannot be direct evidence of acceptance of the illegal gratification or passing the orders for extraneous consideration, rather inference is to be drawn from the attending circumstances, and in such a fact-situation, Court must read between the lines. The petitioner was not charged of indulging in such illegal activities in a solitary incident, but the charges framed in respect of 15 different cases reflect a consistent and continuing habit of indulging in passing such orders.
10. It has been further urged on behalf of the respondents that the petitioner exercising the powers of a Judicial Magistrate has granted bail in cases involving an offence which were punishable with sentence of life imprisonment. The action of the petitioner, therefore, was a clear transgression of the limits prescribed by law as the case did not fall in the exceptions of Section 437 Cr.P.C.
11. The orders passed by the petitioner reflected on his integrity, and in spite of the fact that the orders passed by him could be reversed, corrected, varied by the appellate or revisional Court, there cannot be any bar in holding a domestic inquiry in such cases, in addition to resorting to appellate/revisional forum for correction of such orders on judicial side. Thus, the petition lacks merit and is liable to be dismissed.
12. We have considered the rival submissions made by the learned counsel for the parties and perused the record.
13. Shri Sirohi has produced the original records of the inquiry as well as of the proceedings of the Administrative Committee and Full Court before us.
14. There is no bar in law to hold an inquiry in the cases, even if the order passed by a judicial officer can be corrected in appellate or revisional jurisdiction, if the bona fides of the officer are found doubtful while passing the orders, where the officer has acted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty or he has proceeded recklessnessly or has passed order unduly favouring a party or acted with corrupt motive. (Vide S. Govinda Menon v. Union of India and Anr., ; Union of India and Ors. v. A.N. Saxena, ; Union of India and Ors. v. K.K. Dhawan, ; Union of India and Ors. v. Upendra Singh, ; and The High Court of Judicature at Bombay v. Shashikant S. Patil and Anr., .
15. In Government of Tamil Nadu v. K.N. Ramamurthy, , the Hon'ble Supreme Court held that exercise of judicial or quasi judicial power negligently having adverse affect on the party or the State certainly amounts to misconduct.
16. In M.H. Devendrappa v. The Karnataka State Small Industries Development Corporation, , the Hon'ble Supreme Court ruled that any action of an employee which is detrimental to the prestige of the institution or employment, would amount to misconduct.
17. In High Court of Judicature at Bombay v. Udaysingh and Ors., the Hon'ble Apex Court while dealing with a case of judicial officer held as under:-
"Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the officer and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that imposition of penalty of dismissal from service is well justified."
18. This Court in Ram Chandra Shukla v. State of U.P. and Ors., (2002) 1 ALR 138 held that the case of judicial officers has to be examined in the light of a different standard that of other administrative officers. There is much requirement of credibility of the conduct and integrity of judicial officers.
19. In High Court of Judicature at Bombay V. Shirish Kumar Rangrao Patil and Anr., , the Supreme Court observed as under:-
"The lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and the need to stem it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235, 124(6) of the Constitution. It would, therefore, be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection.
When such a constitutional function was exercised by the administrative side of the High Court any judicial review thereon should have been made not only with great care and circumspection, but confining strictly to the parameters set by this Court in the aforesaid decisions.---------"
20. In All India Judges' Association v. Union of India and Ors., , the Hon'ble Supreme Court observed that Judges perform a "function that is utterly divine" and officers of the subordinate judiciary have the responsibility of building up of the case appropriately to answer the cause of justice. "The personality, knowledge, judicial restrain, capacity to maintain dignity" are the additional aspects which go into making the Courts functioning successfully.
21. In Tarak Singh v. Jyoti Basu, , the Hon'ble Supreme Court observed as under:-
"Today, the judiciary is the repository of public faith. It is the trustee of the people. It is the last hope of the people. After every knock of all the doors fail, people approach the judiciary as a last resort. It is the only temple worshipped by every citizen of this nation, regardless of religion, caste, sex or place of birth because of the power he wields. A Judge is being judged with more strictness than others. Integrity is the hallmark of judicial discipline, apart from others. It is high time the judiciary must take utmost care to see that the temple of justice does not crack from inside which will lead to a catastrophe in the justice delivery system resulting in the failure of public confidence in the system. We must remember woodpeckers inside pose larger threat than the storm outside."
22. Thus, in view of the above, it is evident that in spite of the fact that an order can be corrected in appellate/revisional jurisdiction but if the order smokes of any corrupt motive or reflects on the integrity of the judicial officer, domestic enquiry can be held and in such a situation, the power of judicial review should be exercised with circumspection.
23. Shri Murli Dhar, learned Senior Counsel appearing for the petitioner, could not satisfy the Court as to under what circumstances, any of the aforesaid courses adopted by the petitioner was permissible, as it could not be accepted that a person having more than 10 years' experience as a judicial officer would not know what was his jurisdiction. Shri Murli Dhar repeated stressed upon the fact that the Inquiry Officer recorded a clear finding on all the charges that there was no evidence to prove that petitioner passed the orders for extraneous consideration. However, Shri Murli Dhar could not explain as to under what circumstances these orders had been passed, if not for extraneous considerations. The misconduct committed by the petitioner on each and every charge is of a grave nature. Inference can be drawn from the attending circumstances that the petitioner passed the orders for unexplained considerations. In such cases, direct evidence of acceptance of illegal gratification is not generally available as no litigant would come forward to say that he got the order from the Court by bribing the Presiding Officer.
24. The details of charges as contained in the charge sheet and the findings recorded by the Inquiry Officer leave no room for doubt that the officer wantonly and unhesitantly passed unlawful orders that surpassed all barriers of unreasonableness. The mere recital in the Inquiry Officer's report that there was no direct evidence to establish any extraneous consideration, in no way, mitigates the gravity of the charges which have otherwise been found proved by the Inquiry Officer. Neither the petitioner's counsel nor the petitioner has been able to afford any plausible or cogent explanation which would persuade this Court towards any leniency in the matter. What cannot be lost sight of is that the Administrative Committee as well as the Full Court, before whom the entire material was placed and discussed, also thought it fit to resolve unanimously against the petitioner without any dissent. In these circumstances, there is nothing so as to compel this Court to take a diffrent view.
25. The scope of entertaining the bail application by the Magistrate in non-bailable cases has been dealt with by the Courts time and again.
26. In Surendra and Ors. v. State of U.P., 1976 AWC 277 (All); Kishore Kumar and Ors. v. State of U.P. and Anr., 1985 All LJ 1238, Gurucharan Singh and Ors. v. State (Delhi Administration), AIR 1978 SC 179; and Vijay Kumar and Ors. v. State of U.P. and Ors., 1989 AWC 569, it has been held that in cases punishable with death or with life imprisonment the Magistrate cannot grant bail, unless recourse is had to the proviso to sub-Section (1) of 437 Cr.P.C.
27. In Prahlad Singh Bhati v. N.C.T. Delhi and Anr., , the Apex Court ruled:-
"We would reiterate that in cases where the offence is punishable with death or imprisonment for life which is triable exclusively by a Court of Sessions, the Magistrate may, in his wisdom, refrain to exercise the powers of granting the bail and refer the accused to approach the higher Courts unless he is fully satisfied that there is no reasonable ground for believing that the accused has been guilty of an offence punishable with death or imprisonment for life, which indicates that if the material placed before the Magistrate is sufficient enough to say that there are no reasonable grounds to believe that the accused had committed offence punishable with death or imprisonment for life, he can grant bail. Generally, he should refrain from doing so."
28. The Court further held that powers of the Magistrate, while dealing with application for grant of bail are regulated by the punishment prescribed for the offence in which the bail is sought. The Magistrate has no jurisdiction to grant bail where punishment is prescribed for imprisonment of life and death penalty unless the matter is covered by the provisos attached to Section 437, Cr.P.C. It has also to be kept in mind that for the purpose of granting bail, the Legislature has used the words "reasonable grounds for believing" instead of the word "evidence", which means the Court dealing with the application for grant of bail can, only satisfy it as to whether there is a genuine case against the accused and the prosecution will not be able to produce prima facie evidence in support of the charge. It is not expected, at this stage, to have the evidence establishing the guilt of the accused beyond reasonable doubt.
29. Thus, in view of the above, there was no occasion for the petitioner to entertain the bail applications wherein the punishment prescribed is life imprisonment.
30. In a limited jurisdiction of judicial review it is not permissible for this Court to sit in appeal over the findings recorded by the Inquiry Officer. Reasons have been recorded by the Administrative Committee as well as by the Full Court for imposition of the 'extreme punishment of removal from service. No material has been placed before us on the basis of which it can be held that the findings recorded by the Inquiry Officer are perverse being based on no evidence or are contrary to the evidence on record. Judicial review is permissible only against the process of decision making and not the decision itself except on grounds of perversity, arbitrariness or proportionality. Shri Murli Dhar, learned Senior Counsel in spite of repeatedly being questioned, could not suggest that the inquiry has not been conducted in the manner prescribed by Rules, or there has been violation of any of the principles of natural justice. Adequacy and sufficiency of evidence before the Inquiry Officer cannot be a ground for judicial review unless the findings are found to be perverse otherwise.
31. It is beyond our imagination that a judicial officer has been entertaining bail applications and granting bail in cases relating to offences, wherein he was not competent to grant the bail. Delinquency of the petitioner has not stopped there. He further reviewed the order passed by him earlier and it cannot be expected that an officer having an experience on judicial side for more than 10 years, was not acquainted with the legal propositions that the power of review was not available to a Court exercising jurisdiction on the criminal side.
32. It cannot be inferred that orders had been passed by the petitioner on account of negligence or because of error of judgment. Those orders had been passed by the petitioner knowing fully well that he had no jurisdiction to issue ad interim injunction in cases where recovery certificates were issued; granting the bail in cases where offences were punishable with life imprisonment; and after rejecting the first bail application; releasing the accused on interim bail; granting bail on the same day entertaining the 2ndbail application; and reviewing orders under criminal law. Learned counsel for the petitioner has not been able to assail the findings recorded by the Inquiry Officer wherein it has been categorically found that the petitioner fully knew that he had no jurisdiction to entertain the bail/review applications and Civil , Court's jurisdiction was barred in cases where recovery certificates had been issued to make recovery as an arrear of land revenue,
33. In view of the above, we reach the inescapable conclusion that a domestic enquiry can be held against a judicial officer in spite of the fact that his order can be corrected in appellate/revisional jurisdiction, in case it reflects on his reputation or integrity or the officer has acted in a manner not being a good officer. The petitioner entertained the suits where the jurisdiction of the Civil Court was barred and granted interim relief, that too, ex parte, not in one but many cases. Bails were granted to various accused involving the offences for which sentence of life imprisonment has been prescribed and the petitioner had no jurisdiction to entertain such bail applications as the matters did not fall within the exceptions provided in provisos to Section 437, Cr.P.C. From the attending circumstances, i.e. granting bail on 2ndbail application on the same day on which the first bail was rejected, without any new fact or additional ground and reviewing the orders passed on criminal, side gives an opportunity to draw inference that the orders had been passed by him for considerations other than permissible in law.
34. The orders passed by the petitioner can be clearly described as orders not passed in good faith. The petitioner conducted himself in a manner which gives a lasting impression that he was least hesitant in surmounting the limits of judicial discipline and restraint. The orders have been discussed in detail by the Inquiry Officer. The petitioner, instead of exhibiting a sense of remorse, has defiantly and obstinately tried to defend himself without any plausible explanation in his response to the charges. The petitioner persists in believing that whatever he has done is just and lawful, in spite of the fact that he was put to caveat through the show cause notice. This attitude of the petitioner also disentitles him for any lenient consideration. Accordingly, we are of the opinion that none of the grounds raised in the writ petition are sufficient so as to warrant interference with the impugned order.
35. Writ is a discretionary and equitable relief and can be granted only to advance the cause of justice. Conduct of the petitioner disentitles him for such an equitable relief. Petition is devoid of any merit and accordingly dismissed.