Jammu & Kashmir High Court - Srinagar Bench
Prof. Abdul Gani Bhat vs Mr Malik Shabir Ahmed on 21 December, 2017
Author: Ali Mohammad Magrey
Bench: Ali Mohammad Magrey
HIGH COURT OF JAMMU AND KASHMIR
AT SRINAGAR
561-A No. 236/2012
Date of Order: 21st December, 2017.
Prof. Abdul Gani Bhat
Vs.
Mr Malik Shabir Ahmed
Coram:
Hon'ble Mr Justice Ali Mohammad Magrey, Judge.
Appearance:
For the Petitioner(s): Petitioner present in person.
For the Respondent(s): None.
i) Whether approved for reporting in Yes
Law Journals etc.:
ii) Whether approved for publication
in Press: Yes
01. Petitioner, in person, has filed the instant petition, questioning the order passed by the learned Special Mobile Magistrate, PT & E, Srinagar, dated 2nd of July, 2012, in the complaint filed by him against Mr Malik Shabir Ahmad, the then 1st Additional Munsiff (1st Class Magistrate), Srinagar, under Section 499 of the RPC. The learned Special Mobile Magistrate, on recording the statement of the complainant and after thorough scanning of the complaint filed against a Judicial Magistrate, has recorded detailed reasons while dismissing the complaint as not 561-A No. 236/2012 Page 1 of 13 maintainable in view of the non-compliance of Section 197 of the Criminal Procedure Code (Cr. P.C.).
02. The learned trial Magistrate has quoted Sections 77 and 78 of the Ranbir Penal Code (RPC) as also Section 197 of the Criminal Procedure Code (Cr. P.C.) in the order which makes a reference to the judicial acts of the Judge recording orders not being an offence. Perusal of the records reveals that Mr Malik Shabir, the then 1st Munsiff (1st Class Magistrate), Srinagar, had passed the order in a Robkar which was stated to be defamatory in nature, therefore, the complainant had filed the complaint before the Chief Judicial Magistrate, Srinagar, which was assigned to the Court of learned Special Mobile Magistrate PT & E, Srinagar.
03. The learned trial Magistrate, while extracting the relevant provisions of the Ranbir Penal Code (RPC) and the Criminal Procedure Code (Cr. P.C.), has arrived to a conclusion that the order passed by the respondent/ the then 1st Additional Munsiff (1st Class Magistrate), Srinagar, is passed while acting judicially, therefore, cannot constitute an offence, moreso, in view of the fact that no complaint can be filed and entertained against a judicial officer without getting the sanction from the Government under Section 197 of the Criminal Procedure Code (Cr. P.C.). It has been also observed by the learned trial Magistrate that no offence has been committed by the respondent/ Mr Malik Shabir Ahmad, the learned Magistrate (1st Additional Munsiff), Srinagar, as the order passed by him is covered under general exceptions under Sections 77 and 78 of the Ranbir Penal Code (RPC) as also there being no sanction under 561-A No. 236/2012 Page 2 of 13 Section 197 of the Criminal Procedure Code (Cr. P.C.). The learned trial Magistrate has, while dismissing the complaint, recorded her displeasure with reference to the approach adopted by the complainant/ petitioner in filing a frivolous complaint, thereby hampering the judicial process. While making such observations, the learned trial Magistrate has issued a show cause notice to the complainant/ petitioner as to why he should not pay compensation to the person against whom he has filed the present complaint. In terms of the impugned order, the proceedings under Section 250 have been initiated against the petitioner which are questioned in the instant petition.
04. Before dealing with the instant petition with reference to its merits, it shall be appropriate to detail out the facts/allegations made by the petitioner against the Magistrate forming the basis, as per him, for filing the complaint under Section 499 and his entitlement for compensation thereon, which, as stated by the petitioner, are detailed out as under:
i. The petitioner claims to have qualified Masters' Degree in Physical Education from Punjabi University, Patiala, Punjab in the year 1975 and Masters of Philosophy from the Jiwaji University, Gwalior in 1982, besides having First Class Diploma in Sports coaching from the National Institute of Sports, Bangalore in 1979 and other exemplary certificates to his credit in the field of rendering social service camps/ independence day parades as also participation in extra curricular activities in sports, drama and debates;
ii. The petitioner further claims that he was appointed in the prestigious Islamia College of Science & Commerce, Srinagar, in the year 1968, as Director, Physical Education, and, he having 561-A No. 236/2012 Page 3 of 13 rendered excellent services there, has achieved the status of having an unblemished carrier;
iii. The petitioner filed a complaint against one Mr B. K. Koul for defamation in the Magisterial Court on 24th of January, 2003, which, as stated, was dismissed on 16th of August, 2003. The said order was challenged before the High Court in criminal revision bearing No. 23/2003, wherein and whereunder, the High Court set aside the order dated 16th of August, 2003, and remanded the case back to the learned trial Magistrate, i.e. the 1 st Additional Munsiff (1st Class Magistrate), Srinagar. It is stated that on taking cognizance of the complaint, the learned Magistrate, namely, Mr Raja Tasleem, in order to procure the presence of the accused had issued various summons and warrants on 29th of October, 2008, 22nd of November, 2008, 2nd of December, 2008, 3rd March, 2009 and, finally, on 7th of July, 2009, non-bailable warrants were issued against the accused for securing his presence and his security was also ordered to be confiscated. Moreover, a separate Robkar was issued against the accused and his surety. However, it is stated, that despite all this, the accused was not brought before the Court and the complainant/ petitioner, having become fed up with the protracted litigation, submitted an application before the then Magistrate on 9th of October, 2010, for dismissing the case as withdrawn on the plea that the Court could not bring the accused to trial and that the writ of the Court ran only on the persons who would come to the Court. It is stated that the Magistrate had asked him to give a relinquishment statement/ Dastbardari statement before the Clerk (criminal Section) which was also given by the complainant/ petitioner on the same date, there and then, but the Magistrate, did not pass order on the application and the Dastbardari as prayed for, and, instead allowed the complaint to remain alive in the Court and kept dragging the same by giving date after date. It is stated that on 4th of December, 2010, when the petitioner appeared before the learned trial Court, he found a different Magistrate sitting on the chair, as such, filed an application seeking disposal of the case. Thereafter, since the application of the petitioner for disposing of the complaint was 561-A No. 236/2012 Page 4 of 13 pending, the Magistrate was asked to dispose of the same, failing which the complainant/ petitioner would bring the same into the notice of the Hon'ble Administrative Judge, for Srinagar, namely, Mr Syed Imtiyaz Hussain, about the delay. The Magistrate, instead of passing the order, adjourned the case to a long date, i.e. 29th of December, 2010, which, as per the complainant/ petitioner, formed a ground for him to file a transfer petition before the learned Principal Sessions Judge, Srinagar, on which the parawise reply was called by the learned Sessions Judge. Instead of submitting the parawise reply to the transfer petition, the learned Magistrate is stated to have dismissed the complaint in exparte and after that parawise reply was submitted to the learned District Judge stating therein that the complaint stands dismissed. The petitioner, while questioning the power of the Magistrate with reference to dismissal of the complaint states that the Magistrate has shown utter disrespect and disobedience to the orders of the higher Courts. It is stated that on 31st of December, 2010, the Magistrate, whom the complainant/ petitioner wanted to proceed against in the complaint, has framed the Robkar against the complainant/ petitioner on the application of the complainant/ petitioner dated 4th of December, 2010, in which the Magistrate has opined that the complainant/ petitioner has used a language scandalizing in nature and has, thereby, lowered the estimation of the Court in general public. On appearance in the Robkar, as stated, the Magistrate failed to provide documents and adopted deep silence in the matter and allowed it to sleep for several months, which formed a ground for the complainant/ petitioner to approach the learned Principal District Judge for directing the Magistrate to provide him the material including the copies of the relevant documents so as to enable him to submit his reply. The failure of the Magistrate to provide the relevant documents lead to the petitioner not submitting the reply on time, therefore, the Magistrate, time and again, issued summons against the complainant/ petitioner causing great panic and pain to the complainant/ petitioner and to his family. It is admitted that the complainant/ petitioner did not appear before the Magistrate on the appointed date, i.e. the 14th of June, 2011, and, on approaching the Court to know the fate of the 561-A No. 236/2012 Page 5 of 13 proceedings, the complainant/ petitioner found that the Magistrate had passed an order on 23rd of September, 2011. The complainant/ petitioner obtained the certified copy of the said order and observed that the Magistrate has used defamatory remarks therein against the him. Therefore, the petitioner/ complainant decided to file a complaint for defamation against the Magistrate.
05. The portion of the order which is stated to be defamatory in nature vis-à-vis the complainant/ petitioner is quoted in paragraph No. 26 of the complaint and same is recorded as under:
"The contemnor appears to be maniac and at best can be described as a case of wasted talent."
06. Accordingly, the complainant/ petitioner filed a complaint before the Court of learned Chief Judicial Magistrate, Srinagar, which was transferred to the Court of learned Special Mobile Magistrate, PT & E, Srinagar for disposal.
07. The learned Special Mobile Magistrate, in terms of order dated 2nd of July, 2012, on consideration of the complaint filed by the complainant/ petitioner after scanning the same in light of the relevant provisions of the Ranbir Penal Code (RPC) and the Criminal Procedure Code (Cr. P.C.), had found the complaint not only unnecessary, but also attacking the judicial system and lowering down the same, therefore, dismissed the complaint and proceeded against the petitioner by framing Robkar against him. Aggrieved by the aforesaid order dated 2nd of July, 2012, the instant petition has ben filed by the petitioner on the grounds detailed out in the petition, with particular reference to the act of the Magistrate in passing 561-A No. 236/2012 Page 6 of 13 the order, against whom the complainant/ petitioner had filed the complaint, as being not an act judicial in nature, stating that the words used in the said order are defamatory in nature, as such, warrant prosecution. It is further claimed that the protections under Section 77 of the Ranbir Penal Code (RPC) as also under Section 197 of the Criminal Procedure Code (Cr. P.C.) are not available to the Magistrate because the act with reference to using defamatory language in the order cannot be treated as a judicial act, therefore, no sanction was required as warranted under Section 197 of the Criminal Procedure Code (Cr. P.C.).
08. While strengthening the grounds urged in the instant petition, the complainant/ petitioner has referred to and relied upon the judgment of the Hon'ble Supreme Court reported as "AIR 1983 SC 64", rendered in the case of "B. S. Sambhu v. T. S. Krishnaswamy". A perusal of the judgment aforesaid referred to and relied upon by the petitioner reveals that the same has a marginal distinction with regard to the facts and circumstances of the instant case, as the learned Magistrate, in that case, had discussed the conduct and behavior of an advocate as being not good in the open Court. Same is not the case in hand. It is a case where the petitioner's language used in the complaint and the statements made before the Court have been found scandalizing the position of the Court and the judge, therefore, the judgment is not applicable to the facts and circumstances of the instant case.
561-A No. 236/2012 Page 7 of 1309. Heard the learned counsel for the petitioner, perused the record and considered the matter.
10. Before going to the merits of the case, the question is as to whether the order passed by the learned Magistrate, dismissing the complaint of the complainant/ petitioner, as being not maintainable in tune with the mandate of law, can be quashed? The answer has to be in negative, for, the remedy under Section 561-A Cr. P.C. can be invoked/ pressed into service only in the following circumstances:
i. to pass orders in order to give effect to an order passed under Cr. P.C; ii. to prevent abuse of process of Court;
iii. to secure the ends of justice; and iv. to prevent mis-carriage of justice.
11. The Apex Court has held that the power is to be exercised cautiously, carefully and sparingly, and, the Court has not to function as a Court of appeal or revision. It has also laid down the parameters and guidelines in cases titled as K.L.E. Society & Ors. v. Siddalingesh reported in 2008 AIR SCW 1993; A.P. Vs. Bojoori Kanthaiah reported as 2008 AIR SCW 7860 and Reshma Bano v. State of Uttar Pradesh reported in 2008 AIR SCW 1998.
12. No cognizance can be taken of the complaint filed by the complainant/ petitioner against a Magistrate as the same is not permissible in terms of Section 77 of the Ranbir Penal Code (RPC) read with Section 197 of the Criminal Procedure Code (Cr. P.C.). On the recorded reasons supplemented with the relevant provisions of law, the 561-A No. 236/2012 Page 8 of 13 learned trial Magistrate has rightly come to the conclusion that no cognizance can be taken on the complaint of the complainant/ petitioner, because the same does not meet the requirements of Section 77 of the Ranbir Penal Code (RPC) and Section 197 of the Criminal Procedure Code (Cr. P.C.). The respondent/ a 1st Class Judicial Magistrate, against whom the complainant/ petitioner wants cognizance to be taken in the complaint filed under Section 499, has dealt with the complaint of the complainant/ petitioner filed against an individual, merely on the ground that the said Magistrate has dismissed the complaint as having been found not in tune with the requirements under law and, while registering the approach adopted by the petitioner, has framed the Robkar against him.
Same is the case with the learned trial Magistrate, who has passed the order impugned, and while dismissing the complaint of the complainant/ petitioner, has also proceeded against him for the act and the language used in the complaint.
13. Seemingly, it appears, that something is wrong with the petitioner in his approach, otherwise, it cannot be expected, by any stretch of imagination, from the petitioner, who claims to be a Professor having excellent/unblemished service carrier and having achieved academic heights for his expertise in sports and other fields, can behave in the way he has/is, while approaching the Court(s) of law.
14. The Constitutional Scheme in India has, while providing a right to its citizens with reference to easy access to justice, also made it amply clear to one and all that the judiciary is supreme, not only in command, 561-A No. 236/2012 Page 9 of 13 but also in practice, and, no person, whosoever high he may be, can imagine to scandalize the judicial system or lower down its prestige. There is, as such, no question to allow the petitioner to use the system with the object of scandalizing it or lowering down its image in the estimation of the general public. Judicial system and the judges can not be expected to proceed in a matter against some individual the way the petitioner wants, but the judges, while exercising their powers, have to dispense the justice by adopting a judicial approach. Judiciary cannot be expected to pass orders on the mere asking of the petitioner as per his liking, but same has to be done in tune with the mandate of the law as enshrined by the Constitution and the laws of the land.
15. In a catena of judgments, the Hon'ble Supreme Court has held that judges need not be protected and that they can take care of themselves. It is the right and interest of the public in the due administration of justice that have to be protected. Vilification of Judges would lead to the destruction of the system of administration of justice. Reference, in this regard, can be had to the decision of the Hon'ble Supreme Court rendered in the case titled "Asharam M. Jain v. A. T. Gupta", reported as "(1983) 4 SCC 125".
16. As far as the prayers, as sought for in the petition on hand, are concerned, same relate qua the acts of respondent, that he discharged while functioning as a judicial officer. Such acts of a Judicial Officer are protected by and fall under the umbrella of the Judicial Officer's Protection Act, 1971 (1914 A.D.). The said Act was sanctioned by His 561-A No. 236/2012 Page 10 of 13 Highness, the Maharaja Sahib Bahadur, which was published in Government Gazette dated 20th Magher 1971. It was enacted for greater protection of Magistrates and others acting judicially. In terms of the Act, no Judge shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction.
17. Section 77 of the Jammu and Kashmir Ranbir Penal Code (RPC) also provides protection to Judges. It envisages that nothing is an offence which is done by a Judge when acting judicially in the exercise of any power which is, or which he believes to be in good faith, bound by law to do it.
18. It is fundamental that if rule of law is to have any meaning and content, the authority of the Court or a statutory authority and the confidence of the public in them should not be allowed to be shaken, diluted and undermined. The Courts of justice and all Tribunals, exercising judicial functions from the highest to the lowest, are, by their constitution, entrusted with functions directly connected with the administration of justice. It is that expectation and confidence of all those, who have or are likely to have business in that Court or Tribunal, which should be maintained so that the Court/ Tribunal can perform all their functions on a higher level of rectitude and without fear, favour, affection or ill-will. Casting defamatory aspersions upon the character, ability or integrity of the judge/ judicial officer/ authority undermines the dignity of the Court/ authority and tends to create distrust in the popular mind and 561-A No. 236/2012 Page 11 of 13 impedes the confidence of people in the Courts/ Tribunals, which is of prime importance to the litigants in the protection of their rights and liberties. The protection of judges/ judicial officer/ authority is not personal, but accorded to protect the institution of the judiciary from underming the public confidence in the efficacy of judicial process. The protection, therefore, is for fearless crucial process. Any scurrilous, offensive, intimidatory or malicious attack on the judicial officer/ authority beyond condonable limits, amounts to scandalizing the Court/ Tribunal, amenable to not only conviction for its contempt, but also liable to libel or defamation and damages personally or group libel. Maintenance of dignity of the Court/ judicial officer or quasi-judicial authority is, therefore, one of the cardinal principles of rule of law embedded in judicial review. Any uncalled for statement or allegation against the judicial officer/ statutory authorities, casting aspersions of Court's integrity, would justify initiation of appropriate action for scandalizing the Court or Tribunal or vindication of authority or majesty of the Court/ Tribunal. The unfounded accusation by litigant against judicial officer(s) undermines their authority and rudely shakes the public confidence in proper dispensation of justice. It is of necessity to protect the dignity or authority of the judicial officer to maintain the stream of justice, pure and unobstructed. The judicial officer/ authority needs protection against such intimidating attacks. Therefore, making wild allegations against the presiding officer amounts to scandalizing the Court/ statutory authority.
561-A No. 236/2012 Page 12 of 1319. In my opinion, right approach has been adopted by both the learned Magistrates in dealing with the cases of the petitioner and the orders passed by the learned Magistrates, of course, fall within the ambit of "acts judicial in nature', therefore, there is no question at all to proceed against them in any manner on the basis of any complaint of the petitioner.
20. Admittedly, the petitioner, a senior citizen, is expected to reform himself and, he, while approaching the Court of law, shall remain within his limits and show utmost respect as required in tune with the Constitution of India and the laws of the land. Adopting a liberal approach, keeping in view the advanced age of the petitioner, it shall be appropriate to close the proceedings initiated against him by the learned Magistrates while framing the Robkar against him.
21. In the above background, this petition, to the extent of initiation of proceedings against the petitioner/ complainant in the shape of Robkar issued by the Magistrates, are quashed. However, the dismissal of the complaint in terms of the order impugned is maintained.
22. With the above observations, the instant 561-A petition shall stand disposed of.
(Ali Mohammad Magrey) Judge SRINAGAR December 21st, 2017 "TAHIR"
561-A No. 236/2012 Page 13 of 13