Himachal Pradesh High Court
Reserved On:11.09.2024 vs Vipul Lakhanpal & Another on 21 October, 2024
2024:HHC:9990 IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr.Appeal No. 523 of 2024 Reserved on:11.09.2024 Date of Decision: 21. 10.2024 Pooja Sharma ....Appellant Versus Vipul Lakhanpal & another ....Respondents Coram Hon'ble Mr Justice Rakesh Kainthla, Judge. Whether approved for reporting?No For the appellant : Mr. Anirudh Sharma, Advocate. For the Respondents : Mr Neeraj Gupta, Senior Advocate with Mr Ajeet Pal Singh Jaswal, Advocate for Respondent No.1.
Mr. Ajit Sharma, Deputy Advocate General for respondent No.2.
Rakesh Kainthla, Judge.
The present appeal is directed against the judgment dated 06.09.2023 passed by the learned Additional Sessions Judge- I, Solan (learned First Appellate Court), vide which an application filed under Section 195 of Cr.P.C. by the appellant (applicant before the learned First Appellate Court) was dismissed. (Parties shall 1 Whether reporters of Local Papers may be allowed to see the judgment? Yes. 2
2024:HHC:9990 hereinafter be referred to in the same manner as they were arrayed before the learned First Appellate Court for convenience).
2. Briefly stated, the facts giving rise to the present appeal are that the applicant filed an application under Section 195 of Cr.P.C. for initiating proceedings for contempt of lawful authority for producing forged documents before the Court. It was asserted that the Court directed the Head of the Department (HOD) of Psychiatry, IGMC, Shimla to get the respondent (Vipul Lakhanpal) medically examined under the Supervision of Station House Officer, Police Station Sadar, Solan, District Solan, H.P. to determine his exact medical condition as to whether he was capable of defending himself. The respondent was directed to remain present before the HOD Psychiatry IGMC, Shimla, District Shimla, H.P. on 27.04.2019 and the HOD was directed to send his report on or before 10.5.2029. Diwakar Lakhanpal, brother of Vipul Lakhanpal, filed a report dated 08.05.2019 in the Court, which was forged. The applicant obtained an uncertified copy of the report and thereafter applied under the Right to Information Act to get the proper report. The report which was supposed to be filed by the HOD was not filed and a forged document was filed before the Court. This document was not taken 3 2024:HHC:9990 from the Psychiatry Department. Vipul Lakhanpal had also filed some tampered/forged documents with the exemption application before the Court, which are also required to be examined.
3. A reply was filed to the application taking preliminary objection regarding lack of maintainability, the application having been filed without any basis and the applicant having levelled false allegations against the respondents to harass them. It was asserted that Diwakar Lakhanpal had furnished an undertaking to secure the presence of the respondent under Section 329 of Cr.P.C. He was also directed to ensure the presence of the respondent before the Chief Medical Officer, Solan, District Solan, H.P. on 08.4.2019 and thereafter in the Court on 11.04.2019. The matter was referred by the Chief Medical Officer, Solan, H.P. to the HOD Psychiatry, IGMC, Shimla. Respondent Vipual Lakhanpal was produced by the police before the HOD Psychiatry. The report of the examination was handed over in a sealed envelope by the Senior Medical Officer, IGMC Shimla to the mother of Vipul Lakhanpal. This report was duly exhibited and proved before the Court on 01.10.2019. The allegations made against Vipul Lakhanpal are false and have been 4 2024:HHC:9990 made with the malafide intention to harass him. Hence, it was prayed that the application be dismissed.
4. The learned Appellate took up the application alongwith the main appeal and dismissed the same after holding that there was no merit in it.
5. Being aggrieved from the judgment passed by the learned First Appellate Court, the present appeal has been filed. It is asserted that the learned First Appellate Court erred in dismissing the application without assigning any reason. It was duly proved on record that two different CR numbers and two PSY numbers were mentioned on different documents. The CR number mentioned in one of the documents belongs to one Jagdish Kumar. These facts needed an inquiry. Learned First Appellate Court did not consider these documents and dismissed the application without assigning any reason. Respondent No.1 forged the documents and tried to interfere with the administration of justice to have undue benefit by proving himself incapable of giving the defence. Such application ought to have been considered and inquiry should have been conducted. Respondent No.1 was in a fit state of mind, which is apparent from the fact that he had put his 5 2024:HHC:9990 signatures on the summons. He was also putting his appearance before various Courts. Therefore, it was prayed that the present appeal be allowed and the order passed by the learned First Appellate Court be set aside.
6. I have heard Mr Anirudh Sharma, learned counsel for the applicant/appellant, Mr Neeraj Gupta, learned Senior Advocate assisted by Mr Ajeet Pal Singh Jaswal, learned counsel for respondent No.1 and Mr Ajit Sharma, learned Deputy Advocate General for respondent No.2.
7. Mr. Anirudh Sharma, learned counsel for the applicant/appellant submitted that the applicant had filed an application before the learned First Appellate Court for initiating proceedings for contempt of lawful authority. No reasoned order was passed by the learned First Appellate Court on the application. Learned First Appellate Court simply observed in para 33 of its judgment that miscellaneous applications under Section 195 of Cr.P.C. and 311 of Cr.P.C. were pending in this case and there was no merit in them;hence, they were ordered to be dismissed. He prayed that the present appeal be allowed and the order passed by the learned First Appellate Court be set aside. 6
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8. Mr. Neeraj Gupta, learned Senior Advocate for respondent No.1 submitted that there is no infirmity in the judgment passed by the learned First Appellate Court. The learned First Appellate Court could have dismissed the application alongwith the main appeal by simply writing that the pending application stood disposed of. No case was made out for taking action against respondent No. 1 under the law. Therefore, he prayed that the present appeal be dismissed.
9. Mr. Ajit Sharma, learned Deputy Advocate General adopted the submission advanced by learned Senior Counsel for respondent No.1. and submitted that the present appeal be dismissed.
10. I have given considerable thought to the submissions made at the bar and have gone through the records carefully.
11. The applicant has filed an application before the learned First Appellate Court stating that the actual report issued by HOD psychiatry, IGMC, Shimla was different from the one filed before the Court. This was a serious allegation and required investigation. It was submitted that the doctor was examined by the learned First Appellate Court and the Court was justified in rejecting the 7 2024:HHC:9990 application. This submission is not acceptable. The learned First Appellate Court had not recorded any finding that the allegations in the complaint were false because of the statement made by the doctor. The learned Trial Court simply held that the miscellaneous application did not have any merit and was liable to be dismissed.
12. This Court held in Babu Ram v. Himachal Pradesh University, 2021 SCC OnLine HP 5283:2021 (2) Shim. LC 910 that the reasons are live links between the mind of the decision taker and failure to give reasons amount to a denial of justice. It was observed:
"7. Failure to give reasons amounts to denial of justice. Reasons are live links between the mind of the decision- taker to the controversy in question and the decision or conclusion arrived at. Reasons substitute subjectivity by objectivity. The emphasis on recording reasons is that if the decision reveals the "inscrutable face of the sphinx", it can, by its silence, render it virtually impossible for the Courts to perform the appellate function or exercise the power of judicial review in adjudging the validity of the decision. The right to reason is an indispensable part of a sound judicial system.
8. The necessity of assigning reason has been repeatedly emphasized by the Hon'ble Supreme Court and reference in this regard can conveniently be made to the judgment of the Hon'ble Supreme Court in Kranti Associates Pvt. Ltd. v. Masood Ahmed Khan, (2010) 9 SCC 496, wherein after taking into consideration the entire law on the subject, the position of law was summarized as under: --8
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(a) In India the judicial trend has always been to record reasons, even in administrative decisions, if such decisions affect anyone prejudicially.
(b) A quasi-judicial authority must record reasons in support of its conclusions.
(c) Insistence on the recording of reasons is meant to serve the wider principle of justice that justice must not only be done it must also appear to be done as well.
(d) Recording of reasons also operates as a valid restraint on any possible arbitrary exercise of judicial and quasi- judicial or even administrative power.
(e) Reasons reassure that discretion has been exercised by the decision maker on relevant grounds and by disregarding extraneous considerations.
(f) Reasons have virtually become as indispensable a component of a decision-making process as observing principles of natural justice by judicial, quasi-judicial and even by administrative bodies.
(g) Reasons facilitate the process of judicial review by superior Courts.
(h) The ongoing judicial trend in all countries committed to the rule of law and constitutional governance is in favour of reasoned decisions based on relevant facts. This is virtually the lifeblood of judicial decision making justifying the principle that reason is the soul of justice.
(i) Judicial or even quasi-judicial opinions these days can be as different as the judges and authorities who deliver them. All these decisions serve one common purpose which is to demonstrate by reason that the relevant factors have been objectively considered. This is important for sustaining the litigants' faith in the justice delivery system.
(j) Insistence on reason is a requirement for both judicial accountability and transparency.
(k) If a Judge or a quasi-judicial authority is not candid enough about his/her decision-making process then it is 9 2024:HHC:9990 impossible to know whether the person deciding is faithful to the doctrine of precedent or to principles of incrementalism.
(l) Reasons in support of decisions must be cogent, clear and succinct. A pretence of reasons or "rubber-stamp reasons" is not to be equated with a valid decision- making process.
(m) It cannot be doubted that transparency is the sine qua non of restraint on abuse of judicial powers. Transparency in decision-making not only makes the judges and decision-makers less prone to errors but also makes them subject to broader scrutiny. (See David Shapiro in Defence of Judicial Candor (1987) 100 Harward Law Review 731-
37).
(n) Since the requirement to record reasons emanates from the broad doctrine of fairness in decision-making, the said requirement is now virtually a component of human rights and was considered part of Strasbourg Jurisprudence. See Ruiz Torija v. Spain (1994) 19 EHRR 553, at 562 para 29 and Anya v. University of Oxford, 2001 EWCA Civ 405, wherein the Court referred to Article 6 of European Convention of Human Rights which requires, "adequate and intelligent reasons must be given for judicial decisions".
(o) In all common law jurisdictions judgments play a vital role in setting up precedents for the future. Therefore, for the development of law, the requirement of giving reasons for the decision is of the essence and is virtually a part of "Due Process".
9. In Ravi Yashwant Bhoir v. District Collector, Raigad, (2012) 4 SCC 407, the Hon'ble Supreme Court held as under:--
"38. It is a settled proposition of law that even in administrative matters, the reasons should be recorded as it is incumbent upon the authorities to pass a speaking and reasoned order.10
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39. In Shrilekha Vidyarthi v. U.P. (1991) 1 SCC 212 this Court has observed as under: (SCC p. 243, para 36). "36......Every State action may be informed by reason and it follows that an act uninformed by reason is arbitrary. The rule of law contemplates governance by laws and not by humour, whims or caprices of the men to whom the governance is entrusted for the time being. It is the trite law that 'be you ever so high, the laws are above you'. This is what men in power must remember, always."
40. In LIC v. Consumer Education and Research Centre (1995) 5 SCC 482 this Court observed that the State or its instrumentality must not take any irrelevant or irrational factor into consideration or appear arbitrary in its decision.
"Duty to act fairly" is part of the fair procedure envisaged under Articles 14 and 21. Every activity of the public authority or those under public duty must be received and guided by the public interest. A similar view has been reiterated by this Court in Union of India v. Mohan Lal Capoor (1973) 2 SCC 836 and Mahesh Chandra v. U.P. Financial Corpn. (1993) 2 SCC 279.
41. In State of W.B. v. Atul Krishna Shaw 1991 Supp (1) SCC 414, this Court observed that: (SCC p. 421, para 7) "7.... Giving of reasons is an essential element of the administration of justice. A right to reason is, therefore, an indispensable part of the sound system of judicial review."
42. In S.N. Mukherjee v. Union of India (1990) 4 SCC 594, it has been held that the object underlying the rules of natural justice is to prevent miscarriage of justice and secure fair play in action. The expanding horizon of the principles of natural justice provides for the requirement to record reasons as to it is now regarded as one of the principles of natural justice, and it was held in the above case that except in cases where the requirement to record reasons is expressly or by necessary implication dispensed with, the authority must record reasons for its decision.
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43. In Krishna Swami v. Union of India (1992) 4 SCC 605, this Court observed that the rule of law requires that any action or decision of a statutory or public authority must be founded on the reason stated in the order or borne out from the record. The Court further observed: (SCC p. 637, para 47).
"47......Reasons are the links between the material, the foundation for their erection and the actual conclusions. They would also demonstrate how the mind of the maker was activated and actuated and their rational nexus and synthesis with the facts considered and the conclusions reached. Lest it would be arbitrary, unfair and unjust, violating Article 14 or unfair procedure offending Article 21".
44. This Court while deciding the issue in Sant Lal Gupta v. Modern Coop. Group Housing Society Ltd. (2010) 13 SCC 336, placing reliance on its various earlier judgments held as under: (SCC pp. 345-46, para 27).
"27. It is a settled legal proposition that not only administrative but also judicial orders must be supported by reasons recorded in it. Thus, while deciding an issue, the court is bound to give reasons for its conclusion. It is the duty and obligation on the part of the court to record reasons while disposing of the case. The hallmark of order and exercise of judicial power by a judicial forum is for the forum to disclose its reasons by itself and giving of reasons has always been insisted upon as one of the fundamentals of sound administration of the justice delivery system, to make it known that there had been proper and due application of mind to the issue before the court and also as an essential requisite of the principles of natural justice. '3.... The giving of reasons for a decision is an essential attribute of judicial and judicious disposal of a matter before courts, and which is the only indication to know about the manner and quality of exercise undertaken, as also the fact that the court concerned had really applied its mind''.12
2024:HHC:9990 The reason is the heartbeat of every conclusion. It introduces clarity in an order and without the same, the order becomes lifeless. Reasons substitute subjectivity with objectivity. The absence of reasons renders an order indefensible/unsustainable particularly when the order is subject to further challenge before the higher forum. Recording of reasons is the principle of natural justice and every judicial order must be supported by reasons recorded in writing. It ensures transparency and fairness in decision-making. The person who is adversely affected must know why his application has been rejected."
45. In Institute of Chartered Accountants of India v. L.K. Ratna (1986) 4 SCC 537, this Court held that on a charge of misconduct, the authority holding the inquiry must record reasons for reaching its conclusion and record clear findings. The Court further held: (SCC p. 558, para 30).
"30..... In fairness and justice, the member is entitled to know why he has been found guilty. The case can be so serious that it can attract the harsh penalties provided by the Act. Moreover, the member has been given a right of appeal to the High Court under Section 22-A of the Act. To exercise his right of appeal effectively he must know the basis on which the Council has found him guilty. We have already pointed out that a finding by the Council is the first determinative finding on the guilt of the member. It is a finding by a Tribunal of first instance. The conclusion of the Disciplinary Committee does not enjoy the status of a 'finding'. Moreover, the reasons contained in the report by the Disciplinary Committee for its conclusion may or may not constitute the basis of the finding rendered by the Council. The Council must, therefore, state the reasons for its finding."
46. The emphasis on recording reason is that if the decision reveals the "inscrutable face of the sphinx", it can by its silence, render it virtually impossible for the courts to perform their appellate function or exercise the power of judicial review in adjudging the validity of the decision. Right to 13 2024:HHC:9990 reason is an indispensable part of a sound judicial system, and reasons are at least sufficient to indicate an application of mind of the authority before the court. Another rationale is that the affected party can know why the decision has gone against him. One of the salutary requirements of natural justice is spelling out the reasons for the order made, in other words, speaking out. The inscrutable face of the sphinx is ordinarily incongruous with a judicial or quasi-judicial performance."
10. Earlier to the aforesaid decisions, a Constitution Bench of the Hon'ble Supreme Court, in S.N. Mukherjee v. Union of India, (1990) 4 SCC 594, after an exhaustive review of its earlier pronouncements as also the views expressed in other jurisdictions and by expert committees, summarized and explained the law as under: --
"The decisions of this Court referred to above indicate that with regard to the requirement to record reasons the approach of this Court is more in line with that of the American Courts. An important consideration which has weighed with the Court for holding that an administrative authority exercising quasi-judicial functions must record the reasons for its decision is that such a decision is subject to the appellate jurisdiction of this Court under Article 136 of the Constitution as well as the supervisory jurisdiction of the High Courts under Article 227 of the Constitution and that the reasons, if recorded, would enable this Court or the High Courts to effectively exercise the appellate or supervisory power. But this is not the sole consideration. The other considerations which have also weighed with the Court in taking this view are that the requirement of recording reasons would (i) guarantee consideration by the authority;
(ii) introduce clarity in the decisions; and (iii) minimize chances of arbitrariness in decision making. In this regard, a distinction has been drawn between ordinary Courts of law and tribunals and authorities exercising judicial functions on the ground that a Judge is trained to look at things objectively uninfluenced by considerations of policy or expediency 14 2024:HHC:9990 whereas an executive officer generally looks at things from the standpoint of policy and expediency.
Reasons, when recorded by an administrative authority in an order passed by it while exercising quasi-judicial functions, would no doubt facilitate the exercise of its jurisdiction by the appellate or supervisory authority. But the other considerations, referred to above, which have also weighed with this Court in holding that an administrative authority must record reasons for its decision, are of no less significance. These considerations show that the recording of reasons by an administrative authority serves a salutary purpose, namely, it excludes chances of arbitrariness and ensures a degree of fairness in the process of decision- making. The said purpose would apply equally to all decisions and its application cannot be confined to decisions which are subject to appeal, revision or judicial review. In our opinion, therefore, the requirement that reasons be recorded should govern the decisions of an administrative authority exercising quasi-judicial functions irrespective of the fact whether the decision is subject to appeal, revision or judicial review. It may, however, be added that it is not required that the reasons should be as elaborate as in the decision of a Court of law. The extent and nature of the reasons would depend on particular facts and circumstances. What is necessary is that the reasons are clear and explicit so as to indicate that the authority has given due consideration to the points in controversy. The need for recording of reasons is greater in a case where the order is passed at the original stage. The appellate or revisional authority, if it affirms such an order, need not give separate reasons if the appellate or revisional authority agrees with the reasons contained in the order under challenge.
Having considered the rationale for the requirement to record the reasons for the decision of an administrative authority exercising quasi-judicial functions we may now examine the legal basis for imposing this obligation. While considering this aspect the Donoughmore Committee observed that it may well be argued that there is a third principle of natural justice, 15 2024:HHC:9990 namely, that a party is entitled to know the reason for the decision, be it judicial or quasi-judicial. The committee expressed the opinion that "there are some cases where the refusal to give grounds for a decision may be plainly unfair; and this may be so, even when the decision is final and no further proceedings are open to the disappointed party by way of appeal or otherwise" and that "where further proceedings are open to a disappointed party, it is contrary to natural justice that the silence of the Minister or the Ministerial Tribunal should deprive them of the opportunity." (P 80) Prof. H.W.R. Wade has also expressed the view that "natural justice may provide the best rubric for it since the giving of reasons is required by the ordinary man's sense of justice." (See Wade, Administrative Law, 6th Edn. P. 548)."
11. Arbitrariness in the making of an order by an authority can manifest itself in different forms. Non-application of mind by the authority making the order is only one of them. Every order passed by a public authority must disclose due and proper application of mind by the person making the order. Application of mind is best demonstrated by disclosure of mind by the authority making the order and disclosure is best done by recording the reasons that led the authority to pass the order in question. The absence of reasons either in the order passed by the authority is clearly suggestive of the order being arbitrary hence legally unsustainable."
13. In the present case, the learned First Appellate Court has failed to give any reasons and the judgment is not sustainable on this short ground alone.
14. Section 340 of Cr.P.C. deals with the procedure in cases mentioned in Section 195 of Cr.P.C.. It provides that the Court should form an opinion that inquiry should be conducted into an 16 2024:HHC:9990 offence referred to in Section 195(1)(b) of Cr.P.C. and Court may conduct a preliminary inquiry, if any, as it thinks necessary and thereafter proceed further in the matter.
15. In the present case, the learned First Appellate Court had not even mentioned any reason to show that it was not inclined to conduct a preliminary inquiry into the matter. Thus, the learned First Appellate Court failed to follow the procedure prescribed under the law.
16. It was submitted that this Court had discharged the respondent of the charges of contempt in Cr.OPC No. 02 of 2023 titled Court on its own Motion vs. Veepul Lakhanpal decided on 02.01.2024, on the ground that he is suffering from Chronic Psychotic Disorder (Schizophrenia). This judgment will not assist the respondent because in the present case,the question is whether a forged document was produced by the respondent before the Court and whether any action was to be taken against him for doing so. The question of mental capacity will arise thereafter. Moreover, the judgment of this Court will not bind the applicant as she was not a party in the proceedings before this Court. 17
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17. Therefore, the order passed by the learned First Appellate Court is not sustainable. Hence, the present appeal is allowed and the judgment passed by the learned First Appellate Court dismissing the application without giving any reason is set aside. The matter is remitted to the learned First Appellate Court for proceeding further with the application under Section 195 of Cr.P.C.
18. The parties, through their respective counsel, are directed to appear before the learned First Appellate Court on 05th November, 2024.
19. The appeal stands disposed of, so also the pending application(s), if any.
20. The observation made herein before shall remain confined to the disposal of the appeal and will have no bearing, whatsoever, on the merits of the case.
(Rakesh Kainthla) Judge 21st October,2024 (ravinder) Digitally signed by KARAN SINGH GULERIA DN: C=IN, O=HIGH COURT OF HIMACHAL PRADESH, OU=HIGH KARAN SINGH COURT OF HIMACHAL PRADESH SHIMLA, Phone=e5d61f6599be410af7c5f0b57379e225878f23c9ea27b281046 985b3b1fe0b75, PostalCode=171001, S=Himachal Pradesh, SERIALNUMBER=f72cf9165791d55ec939375291962d0d90d094876 GULERIA bd59591426c0b1ce651f01f, CN=KARAN SINGH GULERIA Reason: I am the author of this document Location:
Date: 2024-10-21 15:13:39