Allahabad High Court
Musharraf Hussain vs State Of U.P. & Others on 26 August, 2014
Bench: Krishna Murari, Ashwani Kumar Mishra
HIGH COURT OF JUDICATURE AT ALLAHABAD Reserved AFR Case :- WRIT - A No. - 52433 of 2008 Petitioner :- Musharraf Hussain Respondent :- State Of U.P. & Others Counsel for Petitioner :- Dr. V.D. Shukla,Ashok Khare,Irfan Chaudhary,J.J. Munir,Ranjeet Asthana,Swetashwa Agarwal Counsel for Respondent :- C.S.C.,Arvind Srivastava,Yashwant Verma Hon'ble Krishna Murari,J.
Hon'ble Ashwani Kumar Mishra,J.
(Per Hon'ble Krishna Murari, J.)
1.Petitioner is a Judicial Officer. He was initially appointed on 3.9.1984 as Additional Munsif and was posted at Hardoi. He was promoted as Civil Judge ( Sr. Div.) on 26.8.1993. Further promotion to the post of Additional District & Sessions Judge was accorded to him on 17.5.2001, and he was confirmed as such on 25.5.2005, which post he continues to hold. Petitioner was awarded an adverse entry on 2.7.2005 for the year 2004-2005. Representations filed against it were rejected. Being aggrieved, he has filed the present writ petition with the following prayers:-
(i) A writ, order or direction in the nature of certiorari quashing the adverse remark contained in column no. 1(a), 1(b),1(f) and 2 in annual confidential remark for the year 2004-05 as awarded by the District Judge, Sahjahanpur on 2.7.2005 (Annexure - 2 to the writ petition) as also the communications of the Registrar (Confidential) dated 19.9.2007 and 3.6.2008 (Annexures- 5 and 7 to the writ petition) as also the orders on which the said communications are based.
(ii) A writ, order or direction of a suitable nature commanding the respondents to produce the orders passed by the Administrative Judge and the Administrative Committee on the representations of the petitioner and to quash the same.
(iii) A writ, order or direction of a suitable nature commanding the respondents to treat the entry for the year 2004-05 as a satisfactory entry and also to treat the integrity of the petitioner as certified for the said period".
2.The petitioner has put in nearly thirty years of service as a Judicial Officer. During the relevant period, i.e. 1.4.2004 to 31.3.2005, petitioner was posted as Additional District Judge, Shahjahanpur, in different capacities. He decided 173 Sessions Trial during this period, including Sessions Trial No. 297 of 1995 (State Vs. Laik and others). The then District Judge, Shahjahanpur, after he was transferred to Moradabad, awarded following Annual Remarks to petitioner on 2.7.2005:-
(a)Integrity of the Officer whether beyond doubt, doubtful or positively lacking.
Integrity Doubtful
(b) If he is fair and impartial in dealing with the public and Bar Not fair
(f) Whether judgment on facts and law are on the whole sound and well reasoned and expressed in good language.
Judgment expressed in good language but are not well reasoned. In S.T. No. 297 of 1995 ( State Vs. Laik and others) judgement dated 6.5.2004, the officer disbelieved the injured with and the brother of the deceased on whimsical grounds and acquitted the accused. It smells".
(I) Relations with members of Bar ( mention incidents, if any) Good (2) Over all assessment of the merit of the officer-out-standing, very good, good, average, poor.
Average
3. It is undisputed that except for the year 2004-2005, the service record of the petitioner has been unblemished and his working as a Judicial Officer has always been satisfactory. However, the impugned adverse entry has resulted in petitioner's super-session by thirty junior officers, in January, 2014, for the post of District Judge, and by 179 junior officers, for grant of selection grade, in March, 2014.
4. Upon being communicated of the entry dated 2.7.2005, petitioner submitted a representation against it on 8.8.2005. Petitioner challenged the adverse entry on various grounds and also stated that the then District Judge was biased against him, as petitioner had declined to implicate an officer, despite oral instructions of the District Judge, since no incriminating material was available on record against the said officer, which infuriated the then District Judge resulting in award of adverse entry. Details, in this regard, were furnished. The representation was forwarded by the District Judge to this Court. However, the petitioner was informed vide communication dated 19.9.2007, by the Registrar (Confidential) that his representation has been rejected by the Hon'ble Administrative Judge. Petitioner, thereafter, submitted further representation to this Court, on the administrative side, on 30.10.2007. Petitioner, however, in his subsequent representation stated that he has realized, and has even been made to realize, that his comments about the then District Judge should not have been made, and as such he tendered his apology on this count. The other contents of the previous representation, nevertheless, were pressed. The representation of the petitioner was considered by the Administrative Committee, and was rejected and communicated to the petitioner by the Registrar (Confidential) vide his letter dated 3.6.2008 through the District Judge, Muzaffar Nagar, where petitioner was posted. The adverse entry dated 2.7.2005 awarded by the District Judge, as well as the communications issued by Registrar (Confidential), intimating rejection of representations are under challenge in the present petition.
5. Shri M.D. Singh Shekhar, learned Senior Advocate, appearing for the petitioner has submitted that the award of adverse entry to the petitioner, as well as the rejection of representations is without any justifiable material existing on record, and is, therefore, arbitrary. It has further been contended that petitioner has had an unblemished service record of about 30 years i.e., 20 years before and 10 years after the award of impugned entry. His conduct has always remained satisfactory. Petitioner had never been counseled/advised/cautioned or warned about his conduct by any superior officer, orally or in writing. Petitioner's integrity has been withheld merely on unfounded assumptions inasmuch as the judgment delivered by him on 6.5.2004 in State Vs. Laik and others, has wrongly been construed as misconduct on his part. It is further submitted that the judgment dated 6.5.2004 had been delivered after considering the materials available on record, applying the correct principles of law to the best of petitioner's understanding and belief. None had even otherwise raised any grievance against it, on the administrative side, by making complaint etc. The then District Judge, Shahjahanpur, on the date of award of impugned entry since had been transferred to Moradabad, as District Judge, and as such, the records of the case were not before him and the observations made in the impugned entry were founded merely upon perusal of judgment, which was impermissible. Sri Shekhar also submitted that petitioner had, as was required, annexed some of his other judgments, in the annual assessment form, which alone were required to be examined for awarding the annual remarks and as it did not include the judgment in question, dated 6.5.2004, as such, it could not constitute the basis for award of annual remarks. The District Judge, therefore, had deviated from established past practice in choosing a judgment which was not a part of the annual assessment form. Arguments have also been advanced that withholding of integrity, on unfounded allegations, based on surmises, adversely effects the morale of judicial officers and prevents them from acting fearlessly as per conscience. Reliance has been placed upon various decisions of the Apex Court and this Court.
6. Petitioner also contends that the purpose of awarding Annual Confidential Remarks is to apprise the officer concerned about his working, so that necessary amendments could be made to improve his performance. In the present case, petitioner has not been able to understand flaw in his conduct, as such the very object of awarding annual remarks would be frustrated. The only inference, which the petitioner can draw is that he should not have passed the judgment of acquittal, even if he found the accused innocent, which may defeat the basic cardinal judicial principle of requiring the Judge to be fearless and impartial. He further contends that award of punishment of holding petitioner's integrity, in order to be sustainable, must be based upon a transparent and fair assessment of petitioner's work, which is missing in the instant case. A written argument has also been filed, making the following submissions:-
"(i) The Annual Confidential Remarks have been recorded against the rules and established past practice and are based on extraneous material.
(ii) The judgment of acquittal passed in Sessions Trial No. 297 of 1995 (State Vs. Laik and others) dated 6.5.2004 has been wrongly construed as misconduct against the settled principles of law.
(iii) The petitioner's integrity has been withheld merely on unfounded, assumptions and no cogent, sound or incriminating material has been shown as object to withhold the integrity and moreover the insufficiency of the material has not been considered by Hon'ble Administrative Committee while rejecting the petitioner's representation.
(iv) The previous and subsequent service record of the petitioner has not been considered by the Hon'ble High Court while rejecting his representation.
(v) No previous counciling or advice was made or given. Similarly no oral warning was given by the District judge. No D.O. letter was issued to the petitioner either by the District Judge or by the Hon'ble Administrative Judge.
(vi) No objective or fair assessment of the work, conduct efficiency and integrity of the petitioner has been made. Contrary to that, the adverse entry is the result of personal whims and bias exercised by the then District Judge the instances of which have been enumerated by the petitioner in his representation dated 8.8.2005.
(vii) The adverse remark in Column No. 1 (b) "not fair" is against the facts, based on no material and is contradictory to the entry recorded in Column No. 1(i) and 1(j) of the Annual Confidential Remark.
(viii) The averments made in the writ petition have not been controverted but have remained intact.
(ix) The testimony of the injured witness Smt. Salma P.W. 3 (wife of the deceased)and the eye witness Sri Latafat P.W. 1 (brother of the deceased) has been rejected on sound, cogent and valid grounds and no exercise of whims or arbitrariness has been made by the petitioner.
(x) The judgment dated 6.5.2004 passed in S.T. No. 297 of 1995 (State Vs. Laik and others) which has been made the very basis to withhold the integrity of the petitioner was passed absolutely on its merit after sound appreciation of the evidence. The said judgment is still intact and has not been set aside or quashed in appeal.
(xi) The cases referred in the counter affidavit, namely, Swatantra Singh Vs. State of Haryana and others, reported in (1997) 4 SCC 14 and Union of India Vs. M.E. Reddy reported in (1980) 2 S.C.C. 15 have been referred absolutely out of contest, are not at all applicable to the facts and circumstances of the present case and the quoted paragraphs are neither the ratio nor the opitoc of the said decisions, thus have no bearing upon the merit of the petitioner's case."
7. On the other hand, Sri Arvind Srivastava, learned counsel appearing for the respondents, submit that the entry awarded to petitioner was based on the assessment of his performance by the superior officers, and this Court, which had been recorded after following the procedure prescribed, and is entitled to great weight. It is contended that there was no error in the decision making process and as this Court is not to act as an appellate authority, as such, the merits of the decision itself is not open to challenge in the present proceeding. He submits that many a times no direct evidence of corruption is available against an officer and, therefore, the wisdom of the superior officer under whom the officer concerned is working has to be necessarily relied upon, particularly when it has not been interfered with by the court on the administrative side. He has also contended that the District Judge concerned was entitled to draw inferences against the petitioner on the basis of the judgment delivered by him on 6.5.2004, which was against all settled principles of law and the observation that his judgment, smells, is justified. According to the respondents, the writ petition is thus not liable to be entertained for the following reasons:-
"(i) The writ petitioner has not challenged the order passed by Administrative judge dated 6.5.2008 and the order by Full Court on 22.5.2008, as such the writ petition is not maintainable.
(ii) There is no allegation of any infirmity in the decision making process in awarding the adverse remarks to the petitioner.
(iii) Mere absence of reasons in the order giving annual confidential report or in the order rejecting representation is not fatal.
(iv) Requirement of affording a personal hearing or observing the principles of natural justice are not attracted before awarding the adverse entry or passing orders on the representations against it.
(v) Conduct of the officer, before or after the period of assessment is not relevant, inasmuch as assessment by the authorities of the officer is for the particular period alone.
(vi) The award of adverse entry whether is based upon the decision given by the petitioner in Sessions Trial No. 297 of 1995 or on other materials is not open to any assessment on the administrative side.
(vii) It is not necessary, as held in catena of decisions that test identification parade is not necessary for identification of the accused and the absence of TIP is not fatal."
8. We have heard learned counsel for the parties and have carefully gone through the materials placed on record before us.
9. At the outset, we propose to deal with the objection of the respondents that the present writ petition, in the manner framed, and for the reliefs sought, is not maintainable.
10. We have already extracted the prayers made in the writ petition. The first prayer in the writ petition is to quash the adverse remark awarded by the learned District Judge, Shahjahanpur, on 2.7.2005. Challenge has also been made to the communications issued by the Registrar (Confidential) intimating the decision taken by the Hon'ble Administrative Judge and the Administrative Committee vide orders dated 19.9.2007 and 3.6.2008 (Annexures- 5 & 6 respectively). The petitioner's representation dated 8.8.2005, rejected by the Hon'ble Administrative Judge, and the representation dated 30.10.2007, rejected by the Administrative Committee, are also on record, as Annexure-3 & 7 to the writ petition.
11. The petitioner in paras 18 to 20 of the writ petition has stated that he has only been served with the communication of Registrar (Confidential), intimating about the rejection of the representations, aforesaid, and that the actual order rejecting the representations have not been served upon him. It is further asserted that in the absence of service of the order itself, the petitioner is not aware about the contents and reasons of such rejection of his representation. It is, in this context, that the petitioner has made second prayer for a direction to produce the orders passed by the Hon'ble Administrative Judge, and the Administrative Committee, on his representation, and to quash it. A further prayer has also been made to treat the petitioner's entry for the year 2004-2005 as satisfactory and also to treat the integrity of the petitioner as certified for the period.
12. In the counter affidavit, it has been stated in para -19 that the orders passed by the Hon'ble Administrative Judge on the representations of the judicial officers and the decision taken by the Administrative Committee in its meeting, are confidential papers by virtue of Rule-12 of Chapter XL of the Rules of the Court, as such, they cannot be provided to the petitioner.
13. In the context of the aforesaid factual scenario, we have examined the objection of the respondents. Admittedly, the petitioner was not served with the copies of the orders passed by the Hon'ble Administrative Judge or the Administrative Committee. Under the Rules of the Court, such confidential documents are otherwise not to be made available. The petitioner has only been intimated about the rejection of his representation and such communications are already assailed in the writ petition. Further prayer has been made to call for the record and to quash the decision taken by the Hon'ble Administrative Judge and the Administrative Committee. In such view of the matter, the formulation of prayers in the writ petition are found to be appropriate and the writ petition cannot be rejected on the ground of absence of specific challenge to the order rejecting the representation. The objection raised by the respondents, in this regard, questioning the maintainability of the writ petition, on this count, is hereby rejected.
14. We now proceed to examine the claim of the petitioner raised in the present writ petition, on merits.
15. We have perused the remarks accorded to the petitioner in his annual confidential report. It has also been specifically pleaded that there exists no material, adverse to petitioner, which may justify the impugned entry by the District Judge concerned, or its affirmance by the Administrative Committee, on the administrative side. Respondents, despite specific challenge made in the writ petition, have not brought on record any material existing on record, against the petitioner, to justify the annual remark. There is not even an allegation in the form of complaint etc., by anyone, against the petitioner. It transpires that the only material available before the District Judge, as well as before this Court, on the administrative side, for withholding petitioner's integrity and awarding adverse remarks was the judgment delivered by petitioner in S.T. No.297 of 1995 dated 6.5.2004. The annual confidential remarks awarded by District Judge dated 2.7.2005 has been brought on record of the writ petition as Annexure-2. It is apparent that it was awarded for the year 1.4.2004 to 31.3.2005, on 2.7.2005, by the then District Judge, Shahjahanpur, who was by then the District Judge, Moradabad. A careful examination of the ACR dated 2.7.2005 depicts that the only objective reason for holding petitioner's integrity as doubtful was the judgment dated 6.5.2004, in S.T. No.297 of 1995, on the ground that "it smells".
16. We have carefully examined the entry awarded to the petitioner and the material and arguments advanced by respondents to justify it. A perusal of the impugned entry would go to show that reasons for holding petitioner's integrity as doubtful is his judgment delivered in Sessions Trial No. 297 of 1995 dated 6.5.2004. An appeal against the aforesaid judgment dated 6.5.2004 has been filed, being Government Appeal No. 4630 of 2004 under Section 378 Cr.P.C., which is stated to be pending. The appeal itself has been entertained and following orders have been passed on 25.9.2008:-
"Hon. Amar Saran, J.
Hon. S.C. Nigam. J.
Call the lower court's record within five weeks.
List this case on any date in the week commencing 17.11.2008 for admission and consideration of application under Section 378 (3) of the Code of Criminal Procedure.
Office to communicate this order to the learned Sessions Judge concerned within a week by fax and normal means.
25.9.2008"
17. Petitioner, in his capacity as Additional Sessions Judge, Fast Track Court No.2, Shahjahanpur, decided Sessions Trial No. 297 of 1995 connected with Sessions Trial No. 298 to 302 of 1995. All the accused persons charged under Section 148,302/149,307/149 and 449 I.P.C. were acquitted of the charge. The District Judge concerned, made following adverse remarks against the petitioner:-
" Judgments expressed in good language but are not well reasoned. In Sessions Trial No. 297 of 1995 State Vs. Laik and others, officer has disbelieved the testimony of injured wife and brother of deceased on whimsical grounds, and acquitted the accused. It smells".
18. Learned counsel appearing for the parties, extensively invited attention of the Court to the judgment dated 6.5.2004 itself. Sri M.D. Singh Shekhar submitted that the judgment dated 6.5.2004 is correct and is based on correct appreciation of facts and the law involved. Its validity is yet to be tested in the pending Government Appeal. However, even if the judgment is found to be unsustainable in law, yet, it would not constitute a material adverse to justify the impugned action, particularly, when there was no allegation of any improper motive or malafide having actuated it. Reliance has been placed on various decisions in this regard, which shall be dealt with at the appropriate place.
19. Although, we are not required to adjudicate the validity of the judgment dated 6.5.2004 but as the judgment itself constitute the sole basis for the petitioner's insinuation, it would be appropriate to refer to the basic facts and the explanation of the petitioner, contained in the written submissions to justify it. The District Judge, who had assessed petitioner's work during the period in question termed the judgment dated 6.5.2004 as smelling primarily for the reason that the testimony of injured witnesses i.e. the wife and brother of the deceased had been disbelieved. Petitioner has filed written arguments, extensively explaining his stand, justifying the judgment of acquittal. The appeal against judgment is pending and this Court in the present proceedings is not required to adjudicate its correctness. However, in order to ascertain as to whether such a view was possible or the judgment, on its face value, smells of extraneous reasons, and is whimsical necessitating this Court to examine the judgment. We may reiterate that as any expression of our view, regarding the merits of the judgment, is wholly unwarranted, therefore, we think it appropriate to reproduce some portion of petitioner's written argument, which prompted the petitioner to pass the judgment itself:-
"That the testimony of the injured witness Smt. Salma PW3 (wife of the deceased) and the eye-witness Shri Latafat PW1 (brother of the deceased), has been rejected and discarded on sound, cogent and valid grounds and no exercise of whims or arbitrariness has been made by the petitioner. Moreoever, the impugned entries have also been challenged on the ground that the judgment dated 6.5.2004 passed in ST No.297/95 State v. Laik & Ors, which has been made the very basis to withhold the integrity of the petitioner, was passed absolutely on its merit after sound appreciation of evidence. The said judgment is still intact and has not been set aside or quashed in appeal.
To appreciate why and under what circumstances, the testimony of injured witness Smt. Salma PW3 and eye-witness Latafat PW1 was rejected, the broad features of the case are to be taken into account. They are as under:-
1. According to the FIR, the incident in question had occurred in the intervening night of 11/12 September 1994 at about 1 AM.
2. Alleged source of light at the spot shown in the FIR was an electric bulb but from the evidence the source of light at the scene of occurrence could not be proved.
3. Place of occurrence was the Sehan (courtyard) of the house of deceased Liyaqat which was situated in Village Badi Gaon of P.S. Ramachandra Mission of District Shahjahanpur.
4. Accused who were named in the FIR were, though the original residents of the village Badi Gaon where the murder took place but as per FIR they were not residing in the said village when the incident of murder took place.
5. According to the evidence of alleged eye-witness Latafat PW1, the real brother of the deceased, all the accused had left the village of incident some 6-7 years before the incident and they were residing in Village Katiya Kammhu of P.S. Roja of District Shahjahanpur, village Nabipur of P.S. Shahbad, District Hardoi and in Village Tumurki, P.S. Majhla of District Hardoi. As such none of the accused used to live in village Badi Gaon when the incident in question had occurred.
In the backdrop of above factual situation, and considering the other infirmities and weaknesses of the prosecution case, the petitioner was prompted to consider the evidence of the above witnesses to be not safe and reliable for recording the judgment of conviction.
THE TESTIMONY OF THE INJURED WITNESS SMT. SALMA PW3 (WIFE OF THE DECEASED) WAS DISBELIEVED AND DISCARDED ON THE FOLLOWING GROUNDS:
1. That PW-3 Smt. Salma in her examination in chief had deposed that she woke up from her slumber due to the sounds of gunshots. Her husband was writhing in pain. She rushed towards him, hugged him, but was hit by fire herself and fell down.
Keeping in view the said statement of Examination-in-Chief deposed by Smt. Salma PW3, the petitioner was prompted to arrive at the conclusion that Smt. Salma was in her deep slumber and was jolted out of it due to the sounds of gunshots. She rushed towards her husband who was writhing in pain and sustained a gunshot wound to herself and fell down. During the aforementioned series of events, the witness must have taken a minute or two to regain her senses and to make her mental faculties fully workable after being suddenly jolted out of her sound sleep and bearing the pain of the injury sustained by PW-3 and to make sense of the situation. It would have been even more difficult to identify the assailants in the dark of the night and who might have fled away as they had already accomplished their task. In these few moments, it would not have been possible for Smt. Salma PW-3 to recognize and identify 10 such assailants whom she had never seen before the incident and also to point out as to which assailant was carrying what weapon. For the above mentioned reasons, the testimony of PW3 Smt. Salma was held by the petitioner not to be safe to be relied upon. This view of the petitioner also finds support from the law laid down by Hon'ble Allahabad High Court in STATE OF UP V. SURENDRA SINGH AND ORS [2004 VOL. 2 (ACR) 1276]. In Para 11 of the said judgment the Hon'ble Court in the similar circumstances has observed as under:-
"It was equally doubtful that Vidyawati PW1 waking up from a deep slumber on sound could be in position to put her mental faculties in full working to see the assault on her husband. The inflicting of two blows with TABAL would not have taken much time"
2.Another reason for rejecting the testimony of Smt. Salma PW3 in the opinion of the petitioner was the seat of injury sustained by the injured as well as the position of the assailant from where they were firing along with the surrounding circumstances in which the incident had taken place. Admittedly both the fire-arm injuries sustained by Smt. Salma were found on the backside of her left hip and left elbow respectively. This makes it clear that the assailants were firing from behind her. This fact is further corroborated as the Investigating Officer has also found the empty shell casings of the bullets from point 'F' in the west of the deceased's charpai. Meaning thereby at the time of incident Smt. Salma was facing her husband and not the assailants. As she fell down as soon she was hit by the bullet, in such circumstances, where no source of light was found available, it would not have been possible for this witness to identify the assailants. Smt. Salma PW3 had nowhere stated in her entire evidence that she had tried to look towards her back in an attempt to identify her assailants. In view of these omissions in her testimony, it cannot be presumed that Smt. Salma was able to identify the assailants merely because she had sustained some injuries. This aspect of the matter has been discussed by the petitioner at Page 21 of the judgment.
3.The third circumstance which prompted the petitioner to reject the testimony of injured Smt. Salma was the fact that she did not know the accused persons prior to the incident. This fact is itself evident from the testimony of Smt. Salma as stated by her in her Examination-in-Chief. Smt. Salma in her Examination-in-Chief deposed that the accused persons belonged to her village, whom she did not know before. She also deposed that she saw the accused persons for the first time when they were in the act of committing the crime and thereafter saw them only in court. It is worth mentioning that at the time of the incident the accused persons were not residing in the village in which the incident took place. PW1, Latafatullah deposed in his Examination-in-Chief that at the time of incident, accused Laeek was residing in Village Nabipur, P.S. Shahbad, District Hardoi; Accused persons Sageer and Tauheed were residing in Village Katiya Kammu, P.S. Roja, District Shahjahanpur; similarly accused persons Faiz Mohammad Mashook Ali and Sardar were residing in Village Barmaula, P.S. Roja; and accused persons Ashfaq, Irfan and Istekhar were residing in Village Tumurki, P.S. Majhla, District Hardoi. This fact was further corroborated by him in his cross-examination where he had stated that the accused persons had left the Village Badi Gaon 6-7 years before the incident meaning thereby that the accused persons had not been residing in the village for the last 6-7 years. PW1 Latafat also deposed that Smt. Salma was married to the deceased Liyaqat around 5 years before the incident took place. It is important to note that Smt. Salma was not an original resident of Village Badi Gaon, which is the village in which the incident took place, but she had moved to Badi Gaon from her paternal village Kazipur only after her marriage. It was the time when the accused were not residing in Village Badi Gaon as they had already left their houses. In such circumstances, in the opinion of the petitioner there was no reason or opportunity, for Smt. Salma to know the accused persons. Smt. Salma could not have known the names and the faces of such persons who had already left the village and settled 30-40 km. away in different villages even 2 years prior to her marriage with the deceased. It was nowhere pleaded nor was any evidence adduced by the prosecution to show that the accused used to visit Village Badi Gaon and the injured Smt. Salma had occasions to see and know them. For all these reasons, the petitioner had concluded that PW3 Smt. Salma could not have known the accused persons by their names and faces at the time of the incident and consequently the petitioner held her testimony not worthy of reliance to record the judgment of conviction. This aspect of the matter has been discussed by the petitioner at Page 22 of the judgment.
4. The fourth reason to discard the testimony of injured Smt. Salma was based on the settled principle of law that despite the requirement of holding of Test Identification Parade, the accused were not put for their test identification. It was argued before the petitioner that when Smt. Salma had admitted that she did not know the accused persons prior to the incident and that she saw them for the first time when they were committing the crime and for the second time in the court, then in such circumstances it was legally imperative for the prosecution to conduct a Test Identification Parade of the accused for identification at the hand of Smt. Salma. Admittedly, no such parade was conducted by the prosecution. In support of his contention, learned counsel for the accused persons placed reliance on KAANAN & ORS V. STATE OF KERELA (AIR 1979 SC 1127), V.C. SHUKLA V. STATE (DELHI ADMINISTRATION) [1980 SCC (CRI) 561] AND MOHAN LAL GANGARAM GOHANI V. STATE OF MAHARASHTARA [1982 SCC (CRI) 334]. In the opinion of the petitioner, the above mentioned three citations were attracted in the present case. It will be useful to quote the proposition of law laid in the above noted cases for ready references of the Hon'ble Court.
In KAANAN & ORS V. STATE OF KERELA (AIR 1979 SC 1127), it was held by Hon'ble the Apex Court as under:-
"Where a witness identifies an accused who is not known to him in the Court for the first time, his evidence is absolutely valueless unless there has been a previous TI Parade to test his power of observation."
Hon'ble Supreme Court has reiterated the same position of law in V.C. SHUKLA V. STATE (DELHI ADMINISTRATION) [1980 SCC (CRI) 561] and MOHAN LAL GANGARAM GOHANI V. STATE OF MAHARASHTARA [1982 SCC (CRI) 334]. The Hon'ble Court was pleased to hold in Para 23 and Para 25 respectively of the above mentioned two cases as under:
"Testimony of witness who identified the accused for the first time in court without knowing him before, in absence of any TI Parade would be valueless and unreliable."
The petitioner submits that the legal position on the issue of identification has consistently been the same till today. It will be appropriate to mention that in HEM SINGH ALIAS HEMU V. STATE OF HARAYANA [(2009) 6 SCC 748] the Hon'ble Apex Court reiterated with full approval the similar position of law and held in Para 19 and Para 29 as under:
"Although test identification for the first time in court is permissible in law, the principle should be applied to the facts and circumstances of the case. The accused persons having been identified for the first time in the court, it is difficult for any court to rely upon the same and that too after such a long time."
In SUKHBIR SINGH & ANR V. STATE OF PUNJAB [(2011) 13 ACC 927 (SC)], reiterating and following the above principle of law, Hon'ble Court was pleased to observe in Para 6 and Para 7 of the judgment as under:
"It is true that there is no inflexible rule that an identification made for the first time in court has to be always ruled out of consideration but the broad principle is that in the background there is no other evidence against an accused on identification in court made long after. The judgment cited by Mr. Kuldip Singh of Malkhan Singh's case is on the facts of that particular case, as a prosecutrix, who was the victim of a gang-rape, had identified some of the accused for the first time in court on which this court opined that the identification was acceptable as good piece of evidence."
The essence of the above mentioned citations of the Supreme Court is this that when the witness did not know the accused persons at the time of the incident, when the witness first identified them in the court, then in the absence of any test identification parade, the testimony of such witness is valueless and it cannot be relied upon to convict the accused persons. The circumstances of the present case are similar. Even at the time of her examination in the Court, PW3 Smt. Salma made no identification of the accused persons as is proved from her oral evidence. PW3 Smt. Salma did not tell the names of the accused persons in the court as to who is Irfan, who is Laik, etc. Considering these infirmities in the evidence of Smt. Salma PW3 and in the prosecution's version, the petitioner was prompted to reject her evidence.
The petitioner with all humbleness would like to submit with emphasis that as per settled position of law it is incumbent upon the court to satisfy that the evidence of the injured witness is cogent, reliable, unimpeachable and trustworthy before it is acted upon. The rule is that the testimony of the injured witness is to be analysed like the testimony of any other witness. It would be apt to mention the proposition of law which has been held by this Hon'ble Court in a number of cases.
In STATE OF UP V. BABURAM & ORS [(1994) 31 ACC 412] this Hon'ble Court in Para 14 of the judgment was pleased to hold as under:
"We are alive to the fact that PW2 Radhe Shyam is an injured witness but injuries only guarantee his presence and not his trustfulness. It is well settled that before the testimony of an injured witness is accepted by the court, the court should be satisfied that it is reliable, cogent, unimpeachable and trustworthy. We regret that we cannot classify the evidence of Radhe Shyam in the same category."
This Hon'ble Court in similar circumstances was pleased to hold in Para 17, Page 272 of JAGATPAL & ORS V. STATE OF UP [(2004) 50 ACC 267 (ALL)] as under:
"Merely because a witness is injured, intrinsic value of her evidence is not enhanced by this fact alone. There are many facts and circumstances occurring in the case which may make it difficult to accept the evidence of such an injured witness. Injuries only prove the presence. It would not automatically render her testimony trustworthy. It has to be tested and scrutinized in the same manner in which any other witness would be."
It is to be submitted that for the reasons above mentioned and in the light of the settled legal position, it was found fit not to accept the testimony of PW-3 Smt. Salma as the testimony of a fully reliable witness.
THE TESTIMONY OF THE INJURED WITNESS SHRI LATAFAT PW1 (BROTHER OF THE DECEASED) WAS DISBELIEVED AND DISCARDED ON THE FOLLOWING GROUNDS:
1. That PW-1 Latafat is the complainant and the real brother of the deceased Liaqat. This witness has stated in his complaint which was later converted into the FIR and also in his examination in chief that he was sleeping in the 'sahan' of the house where his deceased brother was sleeping at the time of incident. He has also stated in his testimony that his cot was lying at a distance of 4-6 paces west from the cot of his deceased brother. This witness also deposed in his testimony that cot of Smt. Salma PW-3 (wife of deceased) was lying between the cots of this witness and his deceased brother. In view of the petitioner, such a statement of this witness seems to be highly unbelievable as it appears quite unnatural that a female ward of the family will sleep on a bed which was allegedly lying between the bed of two brothers, one of them being her deceased husband and the other being his brother i.e. her 'Jeth'. This statement of PW-1 also darkens and dampens the possibility of his being present at the spot during the time of incident.
2. That the presence of alleged eye witness PW-1 Sh. Latafat at the scene of occurrence further becomes doubtful in view of the testimony of Smt. Salma PW-3 (wife of deceased) whose presence at the spot during the incident has not been found not disputed. It is important to mention that the injured witness Smt. Salma has disclosed the names of the inmates who were sleeping in the 'sahan' of the house when the incident had occurred. In her testimony, she deposed had categorically deposed that she was sleeping on the west of her husband's bed. She has also stated that Rifaqat (nephew of her husband) was also sleeping in the 'sahan' along with other children of her 'Jeth'. It is important to note that the name of PW-1 Sh. Latafat nowhere figures out in the testimony of Smt. Salma PW-3 that PW-1 Latafat was also sleeping in the 'sahan'. It would not be out of place to mention that the name of this alleged eye witness must have been figured in the statement of Smt. Salma, had he (PW-1 Latafat) been sleeping even in any corner of the same 'sahan'. Statement of PW-1 that he was sleeping at the distance of 4-6 paces from his deceased brother seems false and is contradictory to the statements of PW-3 Smt. Salma which further disputes the presence of PW-1 at the scene of occurrence. As such the statement of PW-1 does not find any corroboration from the evidence of PW-3 Smt. Salma.
3. That in continuation of the above it will also be relevant to note that the presence of PW-1 Sh. Latafat is further ruled out if the statement of Smt. Salma PW-3 is to be believed as true. PW-3 while deposing in her examination in chief had stated that none else arrived there when the offence was committed. As Smt. Salma had deposed that the deceased Liaqat (her husband), she herself, Rifaqat (nephew of her husband) and other children of her 'Jeth' were only those family members who were sleeping in the 'sahan' when the incident took place. She did not depose that her elder jeth Sharafat was sleeping at the top of the roof and her younger jeth Latafat was also sleeping in the 'sahan'. These omissions in the statements of Smt. Salma are immense importance and if these omissions are taken into account along with her statement that nobody else came over there, it completely rules out the presence of not only PW-1 Sh. Latafat but makes the presence of PW-2 Sh. Sharafat highly doubtful. This aspect of the matter has been dealt with by the petitioner ate page 16 of the judgment.
4. That the petitioner would submit that he had held the presence of PW-1 highly doubtful from yet another angle for which the findings were recorded at page 17 of the judgment. According to PW-1, he was sleeping on a bed which was lying towards the west of deceased's bed at the distance of 4-6 paces though this witness has also admitted in his cross-examination that the bed of Smt. Salma was lying between the bed of his deceased brother and of his own which statements of PW-1 has been held by the petitioner as highly unnatural. In the site plan the empty cartridges have been shown to be recovered from the point marked by letter 'F'. This place 'F' was in the immediate west of the place where PW-1 was allegedly sleeping. This means that the bed of PW-1 was first in the range of firing. According to the FIR and also as per statement of PW-1, the accused were having the same amount of enmity against the complainant Latafat. This set of circumstances thus demands that it was PW-1 Latafat who would have been the first casualty of the incident had he been there because as a result of indiscriminate firing it was inevitable that he must have sustained firearm injures. His miraculous escape therefore speaks a volume. If the assailants had found him also at the scene of occurrence then as a consequence of revenge, they might not spared him alive to become a witness in future. This is not disputed that this alleged eye witness has not sustained even a minor abrasion, than, a plausible question arises as to how and in what manner he had managed to escape and why he did not sustain even a minor injury. This inconsistencies in the prosecution's case had promoted the petitioner to infer that PW-1, perhaps was not present at the place of occurrence when the incident of murder had taken place. Such conclusions also find support from the following case law:
In QAMARUDDIN vs. STATE OF UP 2002 (44) ACC 902, this Hon'ble Court in the circumstances identical to the case in hand was pleased to hold in para 11 of the judgment as under:
"the witness does not claim that any of the accused persons made any attempt over him or even threatened him not to raise alarm. Accused persons were also highly inimical to the first informant as well and it does not sound to reason that when the accused persons in order to carry out their plans had selected odd hours of night and had found the deceased sleeping outside in open they would have spared this witness if in fact he had woken up at the time of occurrence and was within the view and shooting range of the assailants. The very fact that this witness was not touched nor any attempt was made over him coupled with the fact that no other cot was found on the scene of occurrence make the presence of this witness at the scene of occurrence highly doubtful".
Similarly, in JAGATPAL & OTHERS vs STATE OF UP 2005 (1) JIC 87, ALLAHABAD, this Hon'ble Court was pleased to hold the evidence of eye witness unreliable in para 14 in the following words:
"Apart from it the degree of the enmity between the appellants and these two, the deceased and the informant Kalicharan was on an even keel. We find no valid reason for these accused persons to spare this man if he had been within their sight and present at the spot, as alleged by him".
In the same para analysing the evidence of alleged eye witness from a different aspect, the Hon'ble Court was further pleased to observe that "this fact coupled with the fact that this witness was left wholly untouched by the assailants leaves no room for doubt in our mind that his presence at the spot at the time of occurrence was highly doubtful".
This Hon'ble Court has consistently followed the above position of law even in RAMESH & OTHERS (IN JAIL) vs STATE OF UP 2005 (1) ACR 604 where in para 16 of the judgment, the Hon'ble Court was pleased to observe "The complainant Sunder Lal had also equal enmity with the accused. The motive as alleged for the commission of the crime in the FIR is that Naresh, brother of the accused was murdered in the year 1970 and PW-1 Sunder Lal and deceased Bundan Lal were named as accused in the report. It is highly surprising that the complainant who was present there at the time of occurrence with whom the assailants had equal enmity was not assaulted".
The Hon'ble Court was therefore did not accept the testimony of that witness and his testimony was rejected.
In the humble submission of the petitioner, the rulings cited above fully applies to the facts of case in hand and having taken them into consideration the testimony of Sh. Latafat, the alleged eye witness was disbelieved.
5. The petitioner submits that the testimony of the brother of the deceased PW-1 Latafat was disbelieved for yet another reason. The conduct of this alleged eye witness was found highly unnatural and improbable in the surrounding circumstances of the case. From the perusal of PW-1's evidence it was found that being the real brother of the deceased, if he had been there he must have cried or make hue and cry or should have raised alarm. He should have tried to save his brother or to provide at least some cover or comfort from the firing, however, no such overt act was evident from his conduct. Considering the proposition of law laid down by Hon'ble the Apex Court in Maharaj Singh vs. State of UP 1994 SCC (Cri) 1390 and Toran Singh VS State of UP 2002 CriLJ 3737, and taken into account the other infirmities in his evidence, the petitioner was promoted to hold his presence doubtful. This aspect of the matter was discussed in page 17 & 18 of the judgment.
6. The petitioner submits that yet another reason to discard the testimony of Sh. Latafat PW-1 was based on the fact that his evidence was not found consistent with the surrounding circumstances and the same was contradictory in contents. It was found that the house in question was having the accommodation of only three rooms. Sh. Latafat PW-1 had deposed that several members of five families were residing in the house which included the deceased Liaqat, Latafat himself, his elder brother Sharafat and two of his cousins Iftekhar and Khalil. Considering the large number of members and having taken into account that five married persons with their families could not be accommodated in the small accommodation of three rooms. The defence had pleaded that Sh. Latafat was having another house in the southern side of the village and he used to reside in that house though he had denied these suggestions given to him in his cross examination. But considering the manner of replies to the questions put to him in cross examination where Latafat had addressed the house of incident as "Liaqat wale makan" and "Liaqat ke makan", the petitioner had inferred that the house where the incident of murder took place was in occupation and possession of the deceased Liaqat or at least the alleged eye witness, Latafat was not residing in that house. In the other words it can be safely said that if Latafat PW-1 was also residing in the same house at the time of the incident than why should he had called his own house or his joint house as the house of Liaqat. Considering all these facts coupled with other circumstances of the case, the evidence of PW-1 Sh. Latafat was not found worth to be relied, consequently the same was not accepted as credible to act upon.
The petitioner would further submit that a judgment in any case is the outcome of findings which are recorded on the basis of the opinion formed having taken into account the cumulative effect of the entire evidence. No evidence or no part of evidence in isolation forms the basis to arrive at the conclusions. In the case in hand the situation was the same. The prosecution's case was found highly doubtful from other angles also like the FIR was found ante-timed, the prosecution witnesses were not clear as to which assailants was having what weapon, as the ballistic expert had categorically opined that the empty cartridges seized from the place of occurrence were not fired from the weapons which the police had recovered at the instances of the accused when they were in the custody of the police and as the recovery of weapons of offence was found to be physically impossible and as no independent or impartial witness was examined despite their availability more so when the relations between the parties were highly inimical, the evidence led at the trial was not found worth incriminating or sufficient to hold the accused guilty of charges. The petitioner had tried to the best of his ability to analyze and scrutinize the evidence of the witnesses at the touchstone of the settled norms. The petitioner had formed his opinion to which he was legally competent as the presiding Judge of the Court. The judgment was passed absolutely on its merit and no other reason was responsible for arriving at such conclusions. More than ten years have passed when the judgment in question was delivered. Govt. Appeal is though pending but the judgment is still intact. The petitioner believes that the judgment will not be quashed in appeal as it was the outcome of sound appreciation of evidence which was led by the parties."
20. Sri Arvind Srivastava, on the other hand, has cited various decisions to contend that even though correctness of the judgment is not to be decided by the respondents but the conduct of the petitioner in discharge of his duties as an officer, can always be looked into on the administrative side, as has rightly been done in the present case. Following instances have been relied upon. In Union of India vs. K.K. Dhawan [1993 (2)SCC, 56], it has been observed as under in para 28:-
"Certainly, therefore, the officer who exercises judicial or quasi-judicial powers acts negligently or recklessly or in order to confer undue favour on a person is not acting as a Judge. Accordingly, the contention of the respondent has to be rejected. It is important to bear in mind that in the present case, we are not concerned with the correctness or legality of the decision of the respondent but the conduct of the respondent in discharge of his duties as an officer. The legality of the orders with reference to the nine assessments may be questioned in appeal or revision under the Act. But we have no doubt in our mind that the Government is not precluded from taking the disciplinary action for violation of the Conduct Rules. Thus, we conclude that the disciplinary action can be taken in the following cases:-
(i)Where the officer had acted in a manner as would reflect on his reputation for integrity or good faith or devotion to duty;
(ii)if there is prima facie material to show recklessness or misconduct in the discharge of his duty;
(iii)if he has acted in a manner which is unbecoming of a government servant;
(iv)if he had acted negligently or that he omitted the prescribed conditions which are essential for the exercise of the statutory powers;
(v) if he had acted in order to unduly favour a party-,
(vi) if he had been actuated by corrupt motive however, small the bribe may be because Lord Coke said long ago "though the bribe may be small, yet the fault is great."
21. It has further been submitted that mere fact that Test Identification Parade has not been carried out, is not fatal for the prosecution and relied upon the judgment of the Apex court in Ramabhai Narain Bhai Patel Vs. State of Gujrat, [(2000)1 SCC 358], as well as other decisions for the same proposition. He further placed strong reliance on the observation made by the Apex Court in Swatantra Singh Vs. State of Haryana, [1997 (4) SCC, 14]. Paras 4 & 5 are relevant which are given below:-
"5. We find no force in the contention. It is true that in view of the settled legal position, the object of writing the Confidential Reports or Character Roll of a Government servant and communication of the adverse remarks is to afford an opportunity to the concerned officer to make amends to his remiss; to reform himself; to mend his conduct and to be disciplined, to do hardwork, to bring home his lapse in his integrity and character so that he corrects himself and improves the efficiency in public service. The entries, therefore, require an objective assessment of the work and conduct of a Government servant reflecting as accurately as possible his sagging inefficiency and incompetency. The defects and deficiencies brought home to the officer, are means to the end of correcting himself and to show improvement towards excellence. The confidential report, therefore, would contain the assessment of the work, devotion to duty and integrity of the officer concerned. The aforestated entries indicate and reflect that the Superintendent of Police had assessed the reputation of the officer, his honesty, reliability and general reputation gathered around the officer's performance of the duty and shortfalls in that behalf.
6. It is sad but a bitter reality that corruption is corroding, like cancerous lymph nodes, the vital veins of the body politics, social fabric of efficiency in the public service and demoralising the honest officers. The efficiency in public service would improve only when the public servant devotes his sincere attention and does the duty diligently, truthfully, honestly and devotes himself assiduously to the performance of the duties of his post. The reputation of corrupt would gather thick and unshakeable clouds around the conduct of the officer and gain notoriety much faster than the smoke. Sometimes, there may not be concrete or material evidence to make it part of the record. It would, therefore, may be impracticable for the reporting officer or the competent controlling officer writing the confidential report to give specific instances of shortfalls, supported by evidence, like the remarks made by the Superintendent of Police. More often, the corrupt officer manipulates in such a way and leaves no traceable evidence to be made part of the record for being cited as specific instance. It would, thus, appear that the order does not contain or the officer writing the report could not give particulars of the corrupt activities of the petitioner. He honestly assessed that the petitioner would prove himself efficient officer, provided he controls his temptation for corruption. That would clearly indicate the fallibility of the petitioner, vis-a-vis the alleged acts of corruption. Under these circumstances, it cannot be said that the remarks made in the confidential report are vague without any particulars and, therefore, cannot be sustained. It is seen that the officers made the remarks on the basis of the reputation of the petitioner. It was, therefore, for him to improve his conduct, prove honesty and integrity in future in which event, obviously, the authority would appreciate and make necessary remarks for the subsequent period. The appellate authority duly considered and rejected the contention of the petitioner. Repeated representation could render little service. Rejection, therefore, is neither arbitrary nor illegal.
22. Further reliance has been placed upon the judgment in Union of India Vs. M.E. Reddy [1980 (2) SCC 15]:-
"The superior officer may make certain remarks while assessing the work and conduct of the subordinate officer based on his personal supervision or contact. Some of these remarks may be purely innocuous, or may be connected with general reputation of honesty or integrity that a particular officer enjoys. It will indeed be difficult if not impossible to prove by positive evidence that a particular officer is dishonest but those who has had the opportunity to watch the performance of the said officer from close quarters are in a position to know the nature and character not only of his performance but also of the reputation that he enjoys. The High Court has also laid great stress on the fact that as adverse entries had not been communicated to Reddy, therefore, the order impugned is illegal. We find ourselves unable to agree with the view taken by the High Court or the argument put forward by learned counsel for Reddy..... "
23. Reliance has also been placed upon judgment in R.C. Chandel Vs. High Court of M.P., [(2012 ) 8 SCC 58]:
"26. ---------but the confirmation as District Judge and grant of selection grade and super time scale do not wipe out the earlier adverse entries which have remained on record and continued to hold the field.-------In assessing potential for continued useful service of a judicial officer in the system, the High Court is required to take into account the entire service record. Overall profile of a judicial officer is the guiding factor. Those of doubtful integrity, questionable reputation and wanting in utility are not entitled to benefit of service after attaining the requisite length of service or age.
29.Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty.
24. In Pyarey Mohan Lal Vs. State of Jharkhand [(2010) 10 SCC 693], it was observed as under in the context of compulsory retirement of a judicial officer:-
"The law requires the Authority to consider the "entire service record" of the employee while assessing whether he can be given compulsory retirement irrespective of the fact that the adverse entries had not been communicated to him and the officer had been promoted earlier in spite of those adverse entries. More so, a single adverse entry regarding the integrity of an officer even in remote past is sufficient to award compulsory retirement. The case of a Judicial Officer is required to be examined, treating him to be differently from other wings of the society, as he is serving the State in a different capacity. The case of a Judicial Officer is considered by a Committee of Judges of the High Court duly constituted by Hon'ble the Chief Justice and then the report of the Committee is placed before the Full Court. A decision is taken by the Full Court after due deliberation on 21 the matter. Therefore, there is hardly any chance to make the allegations of non- application of mind or mala fide.
25. It is in this factual background that we are called upon to adjudicate the issue. The judgment dated 6.5.2004 is subjudice in appeal before this court. We are not required to adjudicate the merits of the judgment itself. However, as the judgment constitutes the sole basis for the impugned action, the only course open for us, in order to adjudicate the issue involved in the present case is to examine it with the object of ascertaining as to whether it is so shocking so as to term it as "it smells". Word 'smell' is understood in common parlance to emit odour. It also denotes a kind of suspicion. Such remarks, normally, depicts complete abhorrence of the decision itself by a legally trained mind. The idea is to convey that something impermissible in law has been done with oblique motive or other malafide consideration.
26. We have carefully examined the judgment delivered by the petitioner on 6.5.2004 and have also considered the submissions advanced on his behalf in the written argument, which has been reproduced above. We find from the judgment that the statement of injured wife and brother had been disbelieved after taking into consideration various factors. Identification of the accused in the absence of test identification parade was also one of the factors taken into consideration, and was not the only reason to disbelieve the brother and wife of the deceased. Source of light, the fact that the injured wife had never seen any of the accused persons before the incident and could correctly recognize all the accused, for the first time in court, after 10 years of the incident, has been taken note of. The petitioner has recorded his reasons on the strength of evidence adduced that the injured witnesses had actually not seen accused persons at the spot. Contradictions in statements had also been taken note of. Thus, from the perusal of the materials on record, we are of the view that judgment of acquittal cannot be termed to be baseless or so shocking, so as to call it as smelling. Since the appeal is pending in the matter before this court, we refrain from making any further comments on the merits of the judgment itself. We cannot be unmindful of the caution expressed by the Apex Court in K.P. Tiwari v. State of M.P. [1994 Supp (1) SCC 540], para 4 of which reads as under:-
"4. We are, however, impelled to remind the learned Judge of the High Court that however anguished he might have been over the unmerited bail granted to the accused, he should not have allowed himself the latitude of ignoring judicial precaution and propriety even momentarily. The higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior courts. Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revisions. A judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks -- more correctly up to their nostrils. They do not have the benefit of a detached atmosphere of the higher courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive. It is possible that a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct which is not wholly or even partly attributable to innocent functioning. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions. The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other. It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The judges must, therefore, exercise self-restraint. There are ways and ways of expressing disapproval of the orders of the subordinate courts but attributing motives to them is certainly not one of them. That is the surest way to take the judiciary downhill."
27. Similar caution was expressed in Kashi Nath Roy v. State of Bihar [(1996) 4 SCC 539], para 7 of which reads as under:-
"7. It cannot be forgotten that in our system, like elsewhere, appellate and revisional courts have been set up on the presupposition that lower courts would in some measure of cases go wrong in decision-making, both on facts as also on law, and they have been knit-up to correct those orders. The human element in justicing being an important element, computer-like functioning cannot be expected of the courts; however hard they may try and keep themselves precedent-trodden in the scope of discretions and in the manner of judging. Whenever any such intolerable error is detected by or pointed out to a superior court, it is functionally required to correct that error and may, here and there, in an appropriate case, and in a manner befitting, maintaining the dignity of the court and independence of judiciary, convey its message in its judgment to the officer concerned through a process of reasoning, essentially persuasive, reasonable, mellow but clear, and result-orienting, but rarely as a rebuke. Sharp reaction of the kind exhibited in the afore-extraction is not in keeping with institutional functioning. The premise that a Judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the Judge-Subordinate, unless there existed something else and for exceptional grounds."
28. In Braj Kishore Thakur v. Union of India [(1997) 4 SCC 65] observations were made in para 11, which are as under:-
"11. No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when Judges of higher courts publicly express lack of faith in the subordinate Judges. It has been said, time and again, that respect for judiciary is not enhances by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a judicial officer against whom aspersions are made in the judgment could not appear before the higher court to defend his order. Judges of higher courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against the lower judiciary."
29. The Apex Court in a recent decision in Nirmala J. Jhala vs. State of Gujrat [(2013) 4 SCC 301)], had an occasion to deal with issue of growing tendency of "Judge bashing" and corresponding duty of higher judiciary to protect subordinate judicial officers. After referring to the judgment in Ishwar Chand Jain vs. High Court of Punjab & Haryana [(1988) 3 SCC 370) and Yoginath D. Bagde vs. State of Maharashtra [(1999) 7 SCC 739), the Apex Court was pleased to observe as under in para 18 to 21:-
"18. In Ishwar Chand Jain v. High Court of P&H it was held: (SCC pp. 381-82, para 14) "14. Under the Constitution the High Court has control over the subordinate judiciary. While exercising that control it is under a constitutional obligation to guide and protect judicial officers. An honest strict judicial officer is likely to have adversaries in the mofussil courts. If complaints are entertained on trifling matters relating to judicial orders ... no judicial officer would feel protected and it would be difficult for him to discharge his duties in an honest and independent manner. An independent and honest judiciary is a sine qua non for the rule of law. ... It is therefore imperative that the High Court should also take steps to protect its honest officers by ignoring ill-conceived or motivated complaints made by the unscrupulous lawyers and litigants."
19. In Yoginath D. Bagde v. State of Maharashtra it was held: (SCC p. 766, para 48) "48. ... The Presiding Officers of the court cannot act as fugitives. They have also to face sometimes quarrelsome, unscrupulous and cantankerous litigants but they have to face them boldly without deviating from the right path. They are not expected to be overawed by such litigants or fall to their evil designs."
20. A subordinate judicial officer works mostly in a charged atmosphere. He is under a psychological pressure--contestants and lawyers breathing down his neck. If the fact that he renders a decision which is resented by a litigant or his lawyer were to expose him to such risk, it will sound the death knell of the institution. "Judge bashing" has become a favourite pastime of some people. There is growing tendency of maligning the reputation of judicial officers by disgruntled elements who fail to secure an order which they desire. For functioning of democracy, an independent judiciary, to dispense justice without fear and favour is paramount. Judiciary should not be reduced to the position of flies in the hands of wanton boys. (Vide L.D. Jaikwal v. State of U.P., K.P. Tiwari v. State of M.P., Haridas Das v. Usha Rani Banik and Ajay Kumar Pandey,)
21. The subordinate judiciary works in the supervision of the High Court and it faces problems at the hands of unscrupulous litigants and lawyers, and for them "Judge bashing" becomes a favourable pastime. In case the High Court does not protect honest judicial officers, the survival of the judicial system would itself be in danger."
30. We may have to view the matter from a different angle also. Hon'ble Supreme Court has observed time and again that a judge entrusted with the task of administering justice should be bold and feel fearless while deciding the matter and giving expression to his views in the judgment. Following passages in this regard would be relevant to be referred at this juncture:-
"In Ishwari Prasad Mishra Vs. Mohammad Isa [AIR 1963 SCC 1728], the Hon'ble Supreme Court was pleased to hold as under:-
"Judicial experience shows that in adjudicating upon the rival claims brought before the Courts it is not always easy to decide where truth lies. Evidence is adduced by the respective parties in support of their conflicting contentions and circumstances are similarly pressed into service. In such a case, it is, no doubt, the duty of the Judge to consider the evidence objectively and dispassionately, examine it in the light of probabilities and decide which way the truth lies. The impression formed by the Judge about the character of the evidence will ultimately determine the conclusion which he reaches. But it would be unsafe to overlook the fact that all judicial minds may not react in the same way to the said evidence and it is not unusual that evidence which appears to be respectable and trustworthy to one Judge may not appear to be respectable and trustworthy to another Judge. That explains why in some cases Courts of appeal reverse conclusions of fact recorded by the trial court on its appreciation of oral evidence."
Again in Dr. Raghubir Saran Vs. State of Bihar and another [AIR 1964 SC 1], Hon'ble Apex Court observed as under in para 6:-
"Every judicial officer must be free to express his mind in the matter of the appreciation of evidence before him. The phraseology used by a particular Judge depends upon his inherent reaction to falsehood, his comparative command of the English language and his felicity of expression. There is nothing more deleterious to the discharge of judicial functions than to create in the mind of a Judge that he should conform to a particular pattern which may, or may not be, to the liking of the appellate Court. Sometimes he may overstep the mark. When public interests conflict, the lesser should yield to the larger one. An unmerited and undeserved insult to a witness may have to be tolerated in the general interests of preserving the independence of the judiciary. Even so, a duty is case upon the judicial officer not to deflect himself from the even course of justice by making disparaging and undeserving remarks on persons that appear before him as witnesses or otherwise. Moderation in expression lends dignity to his office and imparts greater respect for judiciary. But occasions do arise when a particular Judge, without any justification, may cast aspersions on a witness or any other person not before him affecting the character of such witness or person. Such remarks may after the reputation or ever the career of such person. In such a case the appellate Court in a suitable case may judicially correct the observations of the lower court by pointing out that the observations made by that court were not justified or were without any foundation or were wholly wrong or improper."
In the matter of 'K' A Judicial Officer (2001) 3 SCC 54 (para 7), emphasized the importance of judicial independence in para 7 as under:-
"A judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expressions 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 and 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".
The Full Bench of Bombay High Court in State vs. Nilkanth Shripad [AIR 1954 BOMBAY 65 (F.B.)] observed as under in para-8:-
"It is very necessary, in order to maintain the independence of the judiciary, that every Magistrate, however, junior, should feel that he can fearlessly give expression to his own opinion in the judgment which he delivers. If our Magistrates feel that they cannot frankly and fearlessly deal with matters that come before them and that the High Court is likely to interfere with their opinions, the independence of the judiciary might be seriously undermined."
The views of the Bombay High Court were approved by the Apex Court in V.K. Jain vs. High Court of Delhi through Registrar General and others [(2008) 17, SCC 538].
31. Hon'ble Supreme Court in Z.B. Nagarkar vs. Union of India and others [AIR 1999 SC 2881] while dealing with instance of a quasi-judicial authority to properly adjudicate the matter, by wrong application and interpretation of law has been pleased to hold that such error itself does not constitute a misconduct. The wrong decision is subject to judicial supervision in appeal. Something more in the nature of extraneous consideration or malafide having actuated the passing of the order needs to be alleged and proved. Para 40 & 43 of the said judgment are reproduced:-
"40. A wrong interpretation of law cannot be a ground for misconduct. Of course, it is a different matter altogether if it is deliberate and actuated by malafide.
43. If every error of law were to constitute a charge of misconduct, it would impinge upon the independent functioning of quasi-judicial officers like the appellant. Since in sum and substance misconduct is sought to be inferred by the appellant having committed an error of law, the charge-sheet on the face of it does not proceed on any legal premise rendering it liable to be quashed. In other words, to maintain any charge-sheet against a quasi-judicial authority something more has to be alleged than a mere mistake of law, e.g., in the nature of some extraneous consideration influencing the quasi-judicial order. Since nothing of the sort is alleged herein the impugned charge-sheet is rendered illegal. The charge-sheet, if sustained, will thus impinge upon the confidence and independent functioning of a quasi-judicial authority. The entire system of administrative adjudication whereunder quasi-judicial powers are conferred on administrative authorities, would fall into disrepute if officers performing such functions are inhibited in performing their functions without fear or favour because of the constant threat of disciplinary proceedings."
32. A Division Bench of this Court in Ram Deo Tripathi vs. State of U.P. and others [2014 (2) ADJ 649] relying upon the aforesaid decision held as under in para 21 of the judgment:-
"In the facts of the present case, we find that only allegation against the petitioner is of having passed an illegal order. There is no allegation that such passing of order, termed as illegal, was actuated by any malafide or extraneous consideration. Not only that no such allegation is levelled against the petitioner, it further transpires from the record that no material whatsoever has been referred to, which may even remotely suggest that the order dated 20.3.1996 was passed for any extraneous consideration . Even if the charge on its face value is taken to be correct i.e. of passing of an incorrect/ illegal order by a quasi judicial authority, it would not amount to a misconduct. An order, claimed as illegal, could be challenged in higher forum, as has already been done in the present case and the validity of the said order is yet to be finally adjudicated. We are, therefore, of the opinion that on the basis of the charge levelled against the petitioner, as well as materials brought on record, no case of commission of misconduct against the petitioner was made out, justifying disciplinary proceedings."
33. The jurisdiction of this Court under Article 226 of the Constitution of India to examine the legality of the decision taken on administrative side is well recognized. In Maharashtra State Judicial Service Association and others Vs. High Court of Judicature at Bombay [AIR 2002 SC 1181], it has been held that:-
"We have no doubt in our mind that an administrative decision of the court could be assailed by filing a writ petition under Article 226 in the High Court itself."
34. The jurisdiction of this court under Article 226 of the Constitution of India in a petition arising out of an order passed by the administrative side, awarding adverse entry was extensively considered by a Division Bench of this court in Desh Bushan Jain vs. State of U.P. and another [2007 (4) AWC 3209]. The decisions cited by the respondents were taken note of in para 42 onwards. Ultimately, the following principles were culled out in para 49 of the judgment, which is as under:-
"49. From the aforesaid decisions, it is seen that the High Court cannot sit as an appellate authority over the decision and order of the administrative authorities. The Court cannot substitute its judgment for the judgment of the administrative authorities even if certain amount of discretion is available to them. However, when the action of the administrative authorities is unfair or unreasonable, then the Court can intervene in the following situation:
(a) where a decision-making authority exceeded its powers?
(b) committed an error of law;
(c) committed a breach of the rules of natural justice;
(d) reached a decision which no reasonable Tribunal would have reached; or
(e) abused its powers."
35. The scope of judicial review in such matters had been dealt with in Nirmala J. Jhala (supra) in para 22 to 24 also, which are as under:-
"22. It is settled legal proposition that judicial review is not akin to adjudication on merits by re-appreciating the evidence as an appellate authority. The only consideration the Court/Tribunal has in its judicial review, is to consider whether the conclusion is based on evidence on record and supports the finding or whether the conclusion is based on no evidence. The adequacy or reliability of the evidence is not a matter which can be permitted to be canvassed before the Court in writ proceedings. (Vide State of T.N. v. S. Subramaniam, R.S. Saini v. State of Punjab and Govt. of A.P. v. Mohd. Nasrullah Khan)
23. In Zora Singh v. J.M. Tandon this Court while dealing with the issue of scope of judicial review, held as under: (SCC p. 838, para 10) "10. ... The principle that if some of the reasons relied on by a Tribunal for its conclusion turn out to be extraneous or otherwise unsustainable, its decision would be vitiated, applies to cases in which the conclusion is arrived at not on assessment of objective facts or evidence, but on subjective satisfaction. The reason is that whereas in cases where the decision is based on subjective satisfaction if some of the reasons turn out to be irrelevant or invalid, it would be impossible for a superior court to find out which of the reasons, relevant or irrelevant, valid or invalid, had brought about such satisfaction. But in a case where the conclusion is based on objective facts and evidence, such a difficulty would not arise. If it is found that there was legal evidence before the Tribunal, even if some of it was irrelevant, a superior court would not interfere if the finding can be sustained on the rest of the evidence. The reason is that in a writ petition for certiorari the superior court does not sit in appeal, but exercises only supervisory jurisdiction, and therefore, does not enter into the question of sufficiency of evidence."
(emphasis added)
24. The decisions referred to hereinabove highlights clearly, the parameter of the Court's power of judicial review of administrative action or decision. An order can be set aside if it is based on extraneous grounds, or when there are no grounds at all for passing it or when the grounds are such that, no one can reasonably arrive at the opinion. The Court does not sit as a court of appeal but, it merely reviews the manner in which the decision was made. The Court will not normally exercise its power of judicial review unless it is found that formation of belief by the statutory authority suffers from mala fides, dishonest/corrupt practice. In other words, the authority must act in good faith. Neither the question as to whether there was sufficient evidence before the authority can be raised/examined, nor the question of re-appreciating the evidence to examine the correctness of the order under challenge. If there are sufficient grounds for passing an order, then even if one of them is found to be correct, and on its basis the order impugned can be passed, there is no occasion for the Court to interfere. The jurisdiction is circumscribed and confined to correct errors of law or procedural error, if any, resulting in manifest miscarriage of justice or violation of principles of natural justice. This apart, even when some defect is found in the decision-making process, the Court must exercise its discretionary power with great caution keeping in mind the larger public interest and only when it comes to the conclusion that overwhelming public interest requires interference, the Court should intervene."
36. Applying the aforesaid principle in the facts of the present case, we find that there is no allegation of malafide or extraneous consideration having weighed in passing of the judgment. As a matter of fact, there is not even a complaint against the petitioner. Petitioner, as a judicial officer, was well within his rights to have formed an opinion, in a particular case, based on the evidence and material available, to the best of his understanding and deliver the judgment accordingly. Whether, such judgment is correct or not, is yet to be tested in appeal. To hold that judgment smells, would virtually amount to an administrative examination of the judgment before it is tested in appeal, on the judicial side. This would be legally impermissible. Moreover, there is nothing on record to show that the record of the sessions trial had been summoned by the District Judge from Shahjahanpur to Moradabad, where he awarded the entry, and therefore, in the absence of the entire records, the District Judge concerned could not have commented upon the judgment solely from the perusal of the judgment itself. Petitioner was otherwise having a spotless career of more than 20 years without a single accusation raised against him on judicial or administrative side, prior to the annual remarks awarded for the year 2004-2005. Even thereafter, another ten years have gone by without any complaint against petitioner's integrity. There is further nothing on record to show that the image of petitioner, as a judicial officer, was tainted. The respondents have also not suggested, at any stage, that petitioner was not enjoying a good reputation. Rather, to the contrary, except for withholding of integrity in question, petitioner's confidential reports for almost 30 years have been spotless. In this background, we fail to appreciate as to how reviewing officer could suddenly find reasons to withhold petitioner's integrity and award entries, as have been done in the instant case. Hon'ble Supreme Court in M.S. Bindra vs. Union of India and others [(1998) 7 SCC 310] has applied the principle of "nemo firut repente turpissimus" that no one becomes dishonest all of a sudden, in para 13 of the judgment, which is applicable upon the facts of the present case and is reproduced:-
"13. While viewing this case from the next angle for judicial scrutiny, i.e., want of evidence or material to reach such a conclusion, we may add that want of any material is almost equivalent to the next situation that from the available materials, no reasonable man would reach such a conclusion. While evaluating the materials, the authority should not altogether ignore the reputation in which the officer was held till recently. The maxim "nemo firut repente turpissimus" (no one becomes dishonest all of a sudden) is not unexceptional but still it is a salutary guideline to judge human conduct, particularly in the field of administrative law. The authorities should not keep their eyes totally closed towards the overall estimation in which the delinquent officer was held in the recent past by those who were supervising him earlier. To dunk an officer into the puddle of "doubtful integrity", it is not enough that the doubt fringes on a mere hunch. That doubt should be of such a nature as would reasonably and consciously be entertainable by a reasonable man on the given material. Mere possibility is hardly sufficient to assume that it would have happened. There must be preponderance of probability for the reasonable man to entertain doubt regarding that possibility. Only then there is justification to ram an officer with the label "doubtful integrity."
37. Petitioner, in his representation to the Hon'ble Administrative Judge, had made allegations against the then District Judge, on the ground that he was annoyed with the petitioner for having not indicted an Additional Chief Judicial Magistrate despite his instructions. Other instances of bias were also stated. However, while moving his representation before the court, he did not press the aspect of malafide and instead submitted apology. Even before this court, the aspect of the malafide has not been pressed and, therefore, we are not required to examine this aspect of the matter.
38. When we examine the facts of the present case in light of the discussions made above, we find that there is no material available on record before the reviewing authority to award adverse entry and to hold that petitioner's integrity is doubtful. The observation that petitioner was not fair in dealing with public and bar is apparently contradictory to the conclusions drawn by the District Judge, himself, in column (1)(I), wherein he found that relations of petitioner with the members of the bar were good. The further observations and findings that the judgment dated 6.5.2004 by the petitioner "smelled" also cannot be sustained. We find that even before the Administrative Committee and Hon'ble Administrative Judge also no material existed on record to sustain the adverse remarks and withholding of petitioner's integrity, and thus, the approval of the entry dated 2.7.2005 by the Administrative Committee cannot be sustained. The award of adverse entry, and withholding of integrity, in the absence of any material justifying it, renders it perverse and suffers from the vice of malice in law.
39. The writ petition, consequently succeeds and is allowed. The remark contained in column (1)(a), 1(b), 1(f) and 2 in the Annual Confidential Remarks of the petitioner for the year 2004-2005 awarded by District Judge, Shahjahanpur on 2.7.2005 is quashed. Affirmance of the entry by the Hon'ble Administrative Judge and the court are also set aside. Petitioner's integrity for the year 2004-2005 is entitled to be certified for the said period.
40. There shall, however, be no order as to costs.
Order Date :- 26th August, 2014 Ashok Kr./n.u.