Allahabad High Court
Daulat Ram Sharma vs State Of U.P. & Others on 10 April, 2015
Author: Sudhir Agarwal
Bench: Sudhir Agarwal
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 34 Case :- CRIMINAL MISC. WRIT PETITION No. - 7404 of 2002 Petitioner :- Daulat Ram Sharma Respondent :- State of U.P. & Others Counsel for Petitioner :- Daulat Ram Sharma, Anand Kumar Pandey,B.D. Malhotra,D.R. Sharma Counsel for Respondent :- Govt. Advocate,Y.K. Sinha Hon'ble Sudhir Agarwal,J.
1. Sri Anand Kumar Pandey, learned counsel for the petitioner, states that he has not prepared the matter at all and has gone through the file. He submitted that the matter may be adjourned today. The matter is of the year 2002 and proceedings of the Court below have been stayed for the last 12 years. When he was informed that there are four counsels appearing in this matter, he submitted that he has nothing to do with other counsels but so for as he is concerned, he is not ready with the case.
2. From the record, I find that petitioner, Daulat Ram Sharma, son of M.D. Sharma, himself is an Advocate and is also appearing in person. His name is also been shown in the cause list. In these facts and circumstances, I do not find any justification to accept the request of adjournment only for the reason that out of four, only one counsel i.e. Sri Pandey is not inclined to address the Court particularly when no other counsel has appeared, though the case has been called in revised.
3. Besides, Petitioner, whose name is also shown in the cause list, is also not present, therefore, I have no option but to go through the record myself and decide this writ petition.
4. This writ petition under Article 226 read with Article 227 of the Constitution has been filed assailing judicial orders, i.e., judgment and order dated 23.7.2002 passed by 2nd Additional District and Sessions Judge, Gautambudh Nagar dismissing Revision against the order dated 15.1.2000 passed by 3rd Additional Chief Judicial Magistrate, Ghaziabad in Criminal Case No. 1305 of 1999 whereby the Magistrate has rejected objection of accused filed under Section 204 Cr.P.C.
5. Apparently this writ petition under Article 226 has come up against judicial orders passed by Courts dealing with criminal matters. Recently a three-Judge Bench of Apex Court has considered the question whether judicial orders passed by Civil Courts can be challenged in a writ petition under Article 226 in the case of Radhey Shyam and another Vs. Chhabi Nath and others 2015 (3) SCALE 88 and has held that against judicial orders passed by Civil Court, writ petition under Article 226 would not lie. It has also held that Article 227 is distinct from Article 226 and within the limitation and permissibility of Article 227, the judicial orders passed by Civil Court can be assailed before the High Court.
6. The reasons assigned by Apex Court in taking the aforesaid view that against judicial orders of Civil Court, writ petition under Article 226 would not lie would squarely apply to judicial orders of a Criminal Court also. Therefore, in my view, a writ petition under Article 226 against judicial orders passed by Court dealing with criminal matters would not lie.
7. Now I come to the question whether the impugned order are assailable under Article 227.
8. In supervisory jurisdiction of this Court over subordinate Courts, the scope of judicial review is very limited and narrow. It is not to correct the errors in the orders of the court below but to remove manifest and patent errors of law and jurisdiction without acting as an appellate authority.
9. This power involves a duty on the High Court to keep the inferior courts and tribunals within the bounds of their authority and to see that they do what their duty requires and that they do it in a legal manner. But this power does not vest the High Court with any unlimited prerogative to correct all species of hardship or wrong decisions made within the limits of the jurisdiction of the Court or Tribunal. It must be restricted to cases of grave dereliction of duty and flagrant abuse of fundamental principle of law or justice, where grave injustice would be done unless the High Court interferes.
10. In D. N. Banerji Vs. P. R. Mukherjee 1953 SC 58 the Court said:
"Unless there was any grave miscarriage of justice or flagrant violation of law calling for intervention, it is not for the High Court under articles 226 and 227 of the Constitution to interfere."
11. A Constitution Bench of Apex Court examined the scope of Article 227 of the Constitution in Waryam Singh and another Vs. Amarnath and another AIR 1954 SC 215 and made following observations at p. 571 :
"This power of superintendence conferred by article 227 is, as pointed out by Harries, C.J. in Dalmia Jain Airways Ltd. Vs. Sukumar Mukherjee AIR 1951 Cal. 193, to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors".
12. In Mohd. Yunus v. Mohd. Mustaqim and Ors. AIR 1984 SC 38 the Court held that this Court has very limited scope under Article 227 of the Constitution and even the errors of law cannot be corrected in exercise of power of judicial review under Article 227 of the Constitution. The power can be used sparingly when it comes to the conclusion that the Authority/Tribunal has exceeded its jurisdiction or proceeded under erroneous presumption of jurisdiction. The High Court cannot assume unlimited prerogative to correct all species of hardship or wrong decision. For interference, there must be a case of flagrant abuse of fundamental principles of law or where order of the Tribunal, etc. has resulted in grave injustice.
13. For interference under Article 227, the finding of facts recorded by the Authority should be found to be perverse or patently erroneous and de hors the factual and legal position on record. (See: Nibaran Chandra Bag Vs. Mahendra Nath Ghughu, AIR 1963 SC 1895; Rukmanand Bairoliya Vs. the State of Bihar & ors., AIR 1971 SC 746; Gujarat Steel Tubes Ltd. Vs. Gujarat Steel Tubes Mazdoor Sabha & ors., AIR 1980 SC 1896; Laxmikant R. Bhojwani Vs. Pratapsing Mohansingh Singh Pardeshi, (1995) 6 SCC 576; Reliance Industries Ltd. Vs. Pravinbhai Jasbhai Patel & ors., (1997) 7 SCC 300; M/s. Pepsi Food Ltd. & Anr. Vs. Sub-Judicial Magistrate & ors., (1998) 5 SCC 749; and Virendra Kashinath Ravat & ors. Vs. Vinayak N. Joshi & ors. (1999) 1 SCC 47).
14. It is well settled that power under Article 227 is of the judicial superintendence which cannot be used to up-set conclusions of facts, howsoever erroneous those may be, unless such conclusions are so perverse or so unreasonable that no Court could ever have reached them. (See: Rena Drego Vs. Lalchand Soni & ors., (1998) 3 SCC 341; Chandra Bhushan Vs. Beni Prasad & ors., (1999) 1 SCC 70; Savitrabai Bhausaheb Kevate & ors. Vs. Raichand Dhanraj Lunja, (1999) 2 SCC 171; and Savita Chemical (P) Ltd. Vs. Dyes & Chemical Workers' Union & Anr.,(1999) 2 SCC 143).
15. Power under Article 227 of the Constitution is not in the nature of power of appellate authority enabling re-appreciation of evidence. It should not alter the conclusion reached by the Competent Statutory Authority merely on the ground of insufficiency of evidence. (See: Union of India & ors. Vs. Himmat Singh Chahar, (1999) 4 SCC 521).
16. In Ajaib Singh Vs. Sirhind Co-opeative Marketing cum Processing Service Society Ltd., (1999) 6 SCC 82, the Court has held that there is no justification for the High Court to substitute its view for the opinion of the Authorities/ Courts below as the same is not permissible in proceedings under Articles 226/227 of the Constitution.
17. In Mohan Amba Prasad Agnihotri Vs. Bhaskar Balwant Aheer, AIR 2000 SC 931, the Court said that jurisdiction of High Court under Article 227 of the Constitution is not appealable but supervisory. Therefore, it cannot interfere with the findings of fact recorded by Courts below unless there is no evidence to support findings or the findings are totally perverse.
18. In Indian Overseas Bank Vs. Indian Overseas Bank Staff Canteen Workers' Union (2000) 4 SCC 245, the Court observed that it is impermissible for the Writ Court to reappreciate evidence liberally and drawing conclusions on its own on pure questions of fact for the reason that it is not exercising appellate jurisdiction over the awards passed by Tribunal. The findings of fact recorded by the fact finding authority duly constituted for the purpose ordinarily should be considered to have become final. The same cannot be disturbed for the mere reason of having based on materials or evidence not sufficient or credible in the opinion of Writ Court to warrant those findings. At any rate, as long as they are based upon some material which are relevant for the purpose no interference is called for. Even on the ground that there is yet another view which can reasonably and possibly be taken the High Court can not interfere.
19. In Union of India Vs. Rajendra Prabhu, (2001) 4 SCC 472, the Court observed that the High Court, in exercise of its extraordinary powers under Article 227 of the Constitution, cannot re-appreciate the evidence nor it can substitute its subjective opinion in place of the findings of Authorities below.
20. Similar view has been reiterated in State of Maharashtra Vs. Milind & ors., (2001) 1 SCC 4; Extrella Rubber Vs. Dass Estate (P) Ltd., (2001) 8 SCC 97; and Omeph Mathai & ors. Vs. M. Abdul Khader, (2002) 1 SCC 319.
21. In Surya Dev Rai Vs. Ram Chander Rai and others (2003) 6 SCC 675, it was held that in exercise of supervisory power under Article 227, High Court can correct errors of jurisdiction committed by subordinate Courts. It also held that when subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does have or jurisdiction though available is being exercised in a manner not permitted by law and failure of justice or grave injustice has occasioned, the Court may step in to exercise its supervisory jurisdiction. However, it also said that be it a writ of certiorari or exercise of supervisory jurisdiction, none is available to correct mere errors of fact or law unless error is manifest and apparent on the face of the proceedings such as when it is based on clear ignorance or disregard of the provisions of law; or, a grave injustice or gross failure of justice has occasioned thereby.
22. In Jasbir Singh Vs. State of Punjab (2006 ) 8 SCC 294, the Court said:
"...while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions."
23. In Shalini Shyam Shetty and another Vs. Rajendra Shankar Patil (2010) 8 SCC 329, the Court said that power of interference under Article 227 is to be kept to the minimum to ensure that the wheel of justice does not come to a halt and the fountain of justice remains pure and unpolluted in order to maintain public confidence in the functioning of the tribunals and Courts subordinate to High Court. The above authority has been cited and followed in Kokkanda B. Poondacha and others Vs. K.D. Ganapathi and another AIR 2011 SC 1353 and Bandaru Satyanarayana Vs. Imandi Anasuya (2011) 12 SCC 650.
24. In Abdul Razak (D) through Lrs. & others Vs. Mangesh Rajaram Wagle and others (2010) 2 SCC 432, Court reminded that while exercising jurisdiction under Article 226 or 227, High Courts should not act as if they are exercising an appellate jurisdiction.
25. In T.G.N. Kumar Vs. State of Kerala and others (2011) 2 SCC 772, the Court said that power of superintendence conferred on the High Court under Article 227 of the Constitution of India is both administrative and judicial, but such power is to be exercised sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority.
26. In Commandant, 22nd Battalion, CRPF and others Vs. Surinder Kumar (2011) 10 SCC 244, Apex Court referring to its earlier decision in Union of India Vs. R.K. Sharma (2001) 9 SCC 592 observed that only in an extreme case, where on the face of it there is perversity or irrationality, there can be judicial review under Articles 226 or 227.
27. Considering the scope of scrutiny of judicial orders passed by subordinate Courts under Article 227, I do not find that any of the orders impugned in this writ petition can be said to have been passed by Courts below, committing any jurisdictional error.
28. In a complaint filed under Section 138 of Negotiable Instruments Act, summons were issued by Additional Chief Judicial Magistrate on 6.3.1996 to the accused-petitioner, Daulat Ram Sharma, who is an Advocate also. After receiving the summons accused-petitioner filed an objection requesting Court of Magistrate to reject complaint being not maintainable. It is this objection filed by accused which has been rejected by Magistrate by order dated 15.1.2000. The Magistrate has recorded a finding of fact in respect to disputed cheque that notice was duly served by complainant upon the accused and neither the complaint was barred by limitation nor otherwise not maintainable. Aggrieved thereto, accused preferred a Revision which has been rejected by Additional District and Session Judge.
29. Apparently I do not find any such infirmity which may justify interference by this Court in exercise of jurisdiction under Article 227. In these circumstances, writ petition lacks merits.
30. Dismissed.
31. Interim order, if any, stands vacated.
32. After the Court completed dictation, Sri Anand Kumar Pandey, Advocate, did not leave the Dais but insisted upon the Court to adjourn the matter and recall the order dismissing writ petition. He said that since he has not argued the matter, therefore, Court cannot dismiss writ petition on merits. When the Court pointed out that request for adjournment was already rejected and since he was not inclined to address the Court and no other counsel, whose names are also shown in the cause list, appeared though the case has been called in revised, this Court is fully justified to decide the writ petition after perusal of record, thereupon he immediately said, ^^;s vkidh euethZ gS tks ugha pysxhA^^ The court requested him that since his matter is over, he should allow other cases to proceed and the next case was called, but learned counsel continued with his insistence and did not allow other cases to proceed. Taking this conduct as also the utterances of learned counsel, as noted above, as derogatory, particularly when the same were in presence of number of litigants, Clerks and staff, in the open Court Room, this Court found that it was an ex-facie contempt on the part of learned counsel by not only lowering down the authority and Majesty of the Court but also amounts to obstruction in functioning of Court, and amounts to criminal contempt, as defined under Section 2 (c) read with Section 14 of Contempt of Courts Act, 1971 (hereinafter referred to as "Act, 1971").
33. In the circumstances after giving a warning to counsel that the Court is going to draw contempt proceedings and when he did not deter, but continued to insist upon his attitude with apparent audacity, this Court having no option, proceed to draw criminal contempt proceeding against him and frame the following charge:
"You Anand Kumar Pandey, Advocate, has used derogatory language in the Court openly in presence of several litigants, staff, Clerks and other Advocates and has also obstructed Court's functioning despite the order was dictated in your case, i.e. Criminal Misc. Writ Petition No. 7404 of 2002. Your this act amounts to lowering down the authority and majesty of the Court in the eyes of general public and also interference in administration of justice. Therefore, you are guilty of criminal contempt defined under Section 2 (c) read with Section 14 of Act, 1971. This Court take you in judicial custody forthwith and send to jail for three days. You shall be produced before the Court on 13.4.2015 on which date you may file reply to the aforesaid charge."
34. Learned counsel was taken into custody by Court Master. Since by that time, lunch period intervened, the Court retied in Chamber. After Lunch when the Court assembled, a large number of Advocates led by certain senior members of Bar were present in the Court along with Sri Anand Kumar Pandey. Learned senior members stated that aforesaid Advocate, as per their own personal knowledge, is quite a gentleman, though in some momentary passion he has committed some serious mistake which ought not to have been done. They assured the Court that in case a lenient view is taken in the matter and learned Advocate is pardoned, he will not repeat such conduct in future.
35. At this stage, Sri Anand Kumar Pandey also stood before the Court with folded hand, tendered apology and assured that he shall not commit such mistake in future. He also filed a written application reiterating what he said orally in written words as under:
"5. That during aforesaid submission unsavory something happen which was not proper for which I as counsel feel sorry for the same and further assure to the Hon'ble Court that in future such thing will not happen."
36. This written application submitted by Sri Anand Kumar Pandey shall form part of record of this writ petition.
37. Considering the entire facts and circumstances as above, as also the fact that learned counsel has showed remorse, which appears to this Court bona fide and genuine, this Court accepts apology and drop contempt proceedings, with hope and trust that Sri Anand Kumar Pandey, Advocate, in future shall maintain his conduct as he has assured to this Court.
Dt. 10.4.2015 Hasnain/PS