Bombay High Court
Anand Prabhakar Joshi vs The State Of Maharashtra on 1 October, 2014
Author: P.D.Kode
Bench: V.M. Kanade, P.D. Kode
W.P.902-2014
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CRIMINAL APPELLATE JURISDICTION
CRIMINAL WRIT PETITION NO.902 OF 2014
Anand Prabhakar Joshi
Aged- 61 Yrs.
R/o. Nayana, Flat No.6,
Ideal Colony, Kothrud,
Pune- 411 038. ...Petitioner
vs.
1. The State of Maharashtra
2. S.S. Khandagale
Then Civil Judge,
(S.D.- Pune)
Shivaji Nagar, Pune- 411 005.
3. Chief Justice of Bombay High Court
(Represented by the Registrar-I
Vigilance Department), Appellate Side,
Bombay High Court, Mumbai- 400 032.
4. Bank of Maharashtra
(Through its General Manager
Industrial Relations)
Central Office, 1501,
Shivaji Nagar, Pune- 411 005.
...Respondents
Mr. Anand P. Joshi, Petitioner in person.
Mr. K.V. Saste, APP for the State.
Ms. Rebecca Gonsalvez, for Respondent Nos.2
and 3.
Mr. D.J. Bhanage, for Respondent No.4.
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W.P.902-2014
CORAM : V.M. KANADE &
P.D. KODE JJ.
Judgment reserved on : 27th August, 2014
Judgment pronounced on : 1st October, 2014
JUDGMENT (Per P.D.Kode, J.)
. By this petition, filed under Articles 226 and 227 of the Constitution of India, the petitioner-original plaintiff in Special Civil Suit No.40 of 2000 of the Court of Civil Judge(S.D.), Pune has prayed for -
(i) Setting aside the administrative order dated 6th January, 2012 of Hon'ble Chief Justice, Bombay High Court.
(ii) Directing the Disciplinary Committee to take decision on his complaint as per rule of law preferably within 30 days period as High Court itself is disciplinary authority.
(iii) In event of sanctioning authority according sanction, permitting the petitioner to prosecute respondent No.4 along with Respondent No.2 as per Section 34 of Indian Penal Code.
(iv) Passing any other or further order or orders as deem fit and proper by the Court in the interest of Justice.
2. The petitioner in person urged that he is forced to approach this Court as his request for Vishal 2/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 according sanction under Section 197 of Code of Criminal Procedure to prosecute respondent No.2- Presiding Officer of Special Civil Suit No.40 of 2000 has been rejected in one sentence by respondent No.3 and so also his review application dated 31st January, 2012 and subsequent reminder dated 5th February, 2014 for acting upon the said application, having remained unreplied by respondent No.3 and so also the submission dated 16th April, 2012 of Additional Secretary, Law Department of respondent No.1 to review the petitioner's application dated 31st January, 2012 also having remained unacted.
3. He urged that cause for approaching this Court for such reliefs has mainly arisen regarding the manner in which respondent No.2 has passed the order at Exh-71-A dated 8th February, 2006 and the order at Exh-74 dated 13th February, 2006(in the above referred Civil Suit).
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4. He urged that he has filed said suit against employer Bank - respondent No.4 for setting aside two punishments imposed upon him in a disciplinary proceeding taken, for setting aside an order of removal of him from Bank services and also for paying him a compensation of Rs. 26.75 lacs for his illegal removal from service and so also for declaring himself deemed to be in the service w.e.f. 1st October, 1994.
5. He urged that he had made a complaint in the Court of J.M.F.C. against six officials of respondent No.4 for commission of criminal acts during said two departmental inquiries conducted.
The said Court ordered the respondent No.4 to furnish certified copies of about 200 documents relevant to subject matter of said complaint made.
However, the respondent No.4 on 29th March, 2003 filed a pursis stating that said record was not traceable. The said Court in April, 2003 at the Vishal 4/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 stage of framing of charge, dismissed the said complaint due to non production of said record. He urged that however much later on in month of February, 2013 three Executive Officers of respondent No.4 deposed in above referred Civil suit that they were not aware of issuing of any such pursis of missing of the record. They further stated that they were not aware of any correspondence of missing of the record ensued with any of the branches of respondent No.4 and so also being unaware about any action being initiated/taken by respondent No.4 against the officers concerned with missing of the record.
6. The petitioner urged that in Civil Suit on 9th December, 2005 he submitted an affidavit by way of his evidence and the same was taken on record on 6th February, 2006 without raising any objection about the admissibility of the documents referred therein. The Court also allowed his application Vishal 5/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 for production of documents vide order dated 10th February, 2004. It is submitted that his evidence amongst other consisted of about 72 documents running into 475 pages. He was duly cross examined on behalf of respondent No.4 on 6th, 8th and 13th February, 2006.
7. The petitioner further submitted that the respondent No.4, submitted written notes of final arguments on 2nd March, 2006 in the suit. The said notes then disclosed of passing order by respondent No.2 at Exhibit 71-A dated 8 th February, 2006 deciding said application preferred by respondent No.4 for deciding admissibility of the documents of the petitioner, before completion of his cross examination, on the count of said documents being not proved by the petitioner as per the provision of Evidence Act.
8. The petitioner submitted that the Court on Vishal 6/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 the same day without hearing the petitioner, had passed the order to the effect, "Perused affidavit and document on record. Not even a single document is proved by the Plaintiff, therefore, no documents are marked exhibit.
The petitioner submitted that the said order is not found written in Roznama of proceeding of said Civil suit.
9. With regard to the second order disclosed, the petitioner submitted that in fact in the record of said Civil suit, two documents were given Exhibit-74 and out of them one was the application made by the petitioner on 13th February, 2006 stating that his evidence was complete, while another preferred by respondent No.4 dated 13th February, 2006 with a prayer that unless requisite Court fee was paid, the prayer of the petitioner made in the paragraph 19(a) of the Suit can not be considered nor he could lead any evidence in support thereof. Another prayer was Vishal 7/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 also made therein that the evidence adduced by the petitioner in support of prayer (a) and (b) and in support of issue No.2 and 3 framed in the suit seeking declaration may not be considered and may be struck-off.
10. The petitioner further urged that on the same day respondent No.2 passed the order to the effect "Perused pleadings of both the parties. Heard both the parties. Issue regarding valuation of suit is formed".
11. The petitioner urged that even the said application of respondent No.4 at Exhibit 74 was not found entered in the Roznama nor the order passed thereon is entered therein. It is his submission that the said application and order passed thereon is interpolation made in Court record as there was no subject matter pertaining valuation was in controversy in between the parties. It is his submission that the contents Vishal 8/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 of the order of the Court having perused the pleading, are imaginary and false.
12. The petitioner further submitted that the Presiding Officer had framed the issue and obtained signature of petitioner on Exhibit-64 on which the other issues were framed earlier on 9th December, 2005.
13. The petitioner urged that he submitted an application at Exhibit-78 on 3rd March, 2006 contending that (i) that the order dated 8th February, 2006 on Exhibit 71-A was passed without hearing him (ii) the copy of Exhibit 71-A was not provided to him (iii) his say was not called. He prayed for giving him hearing on the said order passed as it may frustrate suit filed by him.
However, such application preferred by him was rejected by respondent No.2 by passing an order to the effect Vishal 9/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 "Yesterday i.e. on 2nd March, 2006 Court has heard arguments of both the parties and suit is posted for judgment on 7th March, 2006. Hence, application is rejected."
14. The petitioner urged that thereafter he preferred an application at Exhibit 79 dated 3 rd March, 2006 stating "No confidence in the Court"
as hearing sought vide application Exhibit 78 upon passing of judicial order at Exhibit 71-A was rejected by the said Court illegally and it has caused prejudice to the petitioner. He prayed for postponing of matter fixed for judgment on 7 th March, 2006 as he wanted to move the District Judge, Pune under Section 24 of the Code of Civil Procedure for transferring his suit for getting hearing regarding passing judicial order on Exhibit 71-A. It is his submission that even said application was rejected by respondent No.2 on the same date stating "No substance".
15. The petitioner thereafter on 4th March, 2006 preferred an application for transfer under Vishal 10/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 Section 24 of Code of Civil Procedure and obtained the stay order on 6th March, 2006 about matter being posted for judgment on 7th March, 2006.
16. The said application for transfer was opposed by respondent No.4 by filing a say on 13 th March, 2006 by submitting that the order at Exh-
71-A was passed after hearing the petitioner and also opposed the contentions taken by the petitioner in application at Exh-78. The petitioner urged that the submissions made by respondent No.4 in final notes of arguments dated 2nd March, 2006 and say dated 13 th March, 2006 were willful acts for supporting the fact of obtaining said two judicial orders passed by respondent No.2.
17. The petitioner urged that the learned District Judge, Pune however, vide order dated 9th June, 2006 transferred his suit to another Court Vishal 11/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 and the said order clearly observes that the order at Exh-71-A was passed without hearing. The petitioner states that said Court set aside the order at Exh-71-A on 12th February, 2007.
18. The Civil Court (S.D.) Pune while passing order dated 6th July, 2011 observed that the evidence was allowed to be exhibited on 10th February, 2004 and the procedure followed was in order that the documents were given Exhibit number.
He urged that the decision pertaining to the order at Exh-74 was under review since 12th November, 2013 and said suit was pending but the progress of the said suit was slow despite of the order passed by the Apex Court on 25th August, 2012 upon Civil Writ Petition No.127 of 2012 filed by the petitioner for expediting the trial of his suit.
19. The petitioner vide his letter cum complaint dated 11th July, 2006 sought permission Vishal 12/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 under Section 197 of Code of Criminal Procedure to prosecute respondent No.2. However, the same was rejected by the Civil Court on 8th January, 2010.
An appeal preferred by the petitioner against the said order was rejected by this Court on 3rd March, 2010 stating that the petitioner may approach the Appointing Authority and not the High Court.
20. The petitioner preferred Criminal Writ Petition No. 909 of 2010 in this Court seeking the prosecution of respondent No.2 without sanction of Appointing Authority under Section 197 of Code of Criminal Procedure. However, the said petition was rejected by this Court on 26th March, 2010 by taking similar view as taken in the order dated dated 3rd March, 2010. The petitioner moved the Apex Court against the said order dated 26th March, 2010 by preferring a Criminal Writ Petition No.5069 of 2010 seeking the permission to prosecute respondent No.2 without obtaining permission under Vishal 13/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 Section 197 of Code of Criminal Procedure.
However, the Apex Court has dismissed said petition by observing that the permission under Section 197 of Code of Criminal Procedure from Appointing Authority being must and orally directed the petitioner to submit his grievance before the appropriate authority and then approach this Court if complainant had any grievances.
21. The petitioner thereafter filed a complaint on 14th February, 2011 before the Governor of Maharashtra under Section 197 of Code of Criminal Procedure for prosecution alleging respondent No.2 having committed the offences under Sections 24, 25, 218 and 219 of Indian Penal Code.
It was his case in said complaint that respondent No.2 had acted without jurisdiction by passing order without hearing him and as such he had acted without good faith. The said complaint was forwarded to Law and Judiciary Department, Vishal 14/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 Mantralaya on 23rd May, 2011. The said Department in terms forwarded it to the High Court on 19th April, 2011 for required action stating that High Court alone has jurisdiction under Article 235 of the Constitution of India to take disciplinary action.
22. The petitioner urged that however, the Hon'ble Chief Justice through Registrar-I, Vigilance Department vide its order dated 6 th January, 2012 rejected the request of the petitioner seeking permission to prosecute respondent No.2. The petitioner vide his letter dated 31st January, 2012 requested the High Court to review the said decision sought about the consideration on which the said complaint was rejected. The petitioner urged that recording of reasons in support of decision was obligatory for denoting that a decision was reached in accordance with law. The petitioner in the said letter cited Vishal 15/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 various decisions of the Apex Court and also stated that in event of not receiving any reply within 15 days, he would be approaching Apex Court.
23. It is urged that the petitioner once again by letter of reminder on 5th February, 2014 sought the review of the decision dated 6th January, 2012 enclosing all previous correspondence and requested to decide the review application within 15 days.
The petitioner urged that as there was failure to take cognizance of his both the said letters, had forced him to approach this Court.
24. The petitioner urged that High Court manifestly failed to appreciate that the passing of willful, illegal judicial order by respondent No.2 without hearing petitioner, is an act of deception practice upon the petitioner and the same had an effect of causing injury to him. It is his submission that in spite bringing to the notice of Vishal 16/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 the respondent No.2 by preferring Exhibits-78 and 79, the same were also rejected. It is his submission that the said acts committed by respondent No.2 were willful acts performed dishonestly.
25. The petitioner thereafter by drawing our attention to the provision of Section 197 of Code of Criminal Procedure and so also of the offence punishable under Sections 24, 25, 218 and 219 of Indian Penal Code, made a detail submission for convincing us that the acts committed by respondent No.2 and narrated hereinabove constituted commission of such offences by respondent No.2. It is the crux of his submissions that the order of transfer of suit passed by the District Judge, as well as later on allowing of his application(Exh-
78) by the Court to which the suit was transferred, clearly denotes that the respondent No.2 has willfully passed illegal judicial orders i.e. Vishal 17/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 allowing the application(Exh-71-A) preferred by respondent No.2 and rejecting application(Exh-78) preferred by him. It is his submission that passing of such orders without hearing him and without keeping record thereto in the Roznama of the Court proceeding denotes, respondent No.2 having willfully committed said acts and the same constituted commission of such offences. It is urged that such conclusion are duly justified by the order of transfer of suit passed by the learned District Judge upon his application and so also the transferee Court ultimately allowing the application (Exh-78) preferred by him for giving him hearing in the matter. It is his submissions that the same is also denoted of transferee Court entertaining his application regarding issue of valuation also framed by respondent No.2 without hearing him.
26. It is his further submission that in these Vishal 18/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 circumstances the High Court - respondent No.3 ought to have accorded sanction under Section 197 of Code of Criminal Procedure sought by him for prosecution of respondent No.2. It is his submission that mere rejection of his application in one sentence reveals that there was no application of mind while rejecting his prayer for according the sanction for prosecution. It is his further submission that such conclusion is further fortified by the further act committed on part of respondent No.3 of not entertaining his reminder application for reviewing the said order and or keeping the same pending which in turn amounts denial of the said request and consequently denying justice to him. The petitioner submitted that all such acts committed being violative of the fundamental rights guaranteed to him by the Constitution warrants interference from this Court by allowing present Petition preferred by him and giving the directions as prayed by him.
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27. Though the petitioner had made elaborate submissions upon the said aspects instead of repeating each of the submissions canvassed, for the sake of brevity the crux of the submission is narrated hereinabove and only the submission meriting the reply has been dealt hereinafter at appropriate stage. It can be further added that hardly there being any dispute regarding the proposition canvassed by the petitioner about the ingredients of sections 24, 25, 218 and 219 of Indian Penal Code and of 197 of Code of Criminal Procedure, we do not propose to reproduce or dealt upon the same in view of the question involved in the petition being not as to what constituted commission of such offences or according a sanction for commission of such offences but the question being whether the acts committed by respondent No.2 as it is even prima facie can be said to have constituting commission of such offences by respondent No.2 and whether commission of such act Vishal 20/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 on part of respondent No.2 warranted according of sanction and further more whether the respondent No.3 was an authority for according the sanction under Section 197 of Code of Criminal Procedure.
28. The learned counsel for the respondents vehemently opposed the submissions advanced by the petitioner and submitted that though the factual events as claimed by the petitioner having occurred still the same does not entitle the petitioner for any of the reliefs claimed. It is submission of learned counsel for the respondents that mere passing of judicial orders by respondent No.2 and or even accepting the fact of passing such orders or preferring of such application being not reflected in Roznama or not hearing as alleged by the petitioner ipso facto does not lead to a conclusion of respondent No.2 having committed the offences as alleged.
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29. It was urged that the petitioner has all the remedy to redress his grievances about the said order passed by challenging the same in appropriate manner at appropriate stage before appropriate Forum. It was urged that merely the fact of transferring the suit to another Court by District Judge or the said Court to which the suit was transferred ultimately allowing the application (Exh-78) preferred by the petitioner, does not lead to a conclusion of respondent No.2 having passed the order at Exh-71A without any application of mind as tried to be canvassed by the petitioner or thereby having committed an offence as alleged by the petitioner. It was urged that the petitioner was unnecessarily trying to make mountain out of the mole for protracting the proceeding for pressuring respondent No.4. It is urged that the petition is based upon the erroneous footing of an order passed by respondent No.2 about the aspect about which even finality is yet not reached can be Vishal 22/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 made basis for action as proposed by him. It is urged that no case being made for according the sanction under Section 197 of Code of Criminal Procedure, the order passed/communicated by the High Court of rejecting his request/application is unquestionable and much less can not be assailed by preferring the proceeding of present nature. It was urged that the scope of judicial review being very much narrow and no case for such a review of administrative order being averred much less canvassed by the petitioner, no interference with the order of non granting the sanction is warranted in this petition. It was contended that the petition being based upon unwarranted inferences drawn regarding the judicial orders passed upon the subject matter about which finality yet not reached, the petition does not deserve to be entertained and be dismissed.
30. Thoughtful considerations were given by us Vishal 23/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 to the submissions advanced, the petition and the letters annexed were carefully considered for ascertaining merits in submissions canvassed.
Similarly the decisions attempted to be pressed in service by the petitioner were also carefully considered. As a result of such consideration, we are of the considered view of that the petition as preferred on surmises and conjunctures about the judicial order and or unwarranted inferences regarding the manner in which the said order passed is basically misconceived and de horse any merit, deserved to be dismissed.
31. Now before reverting to main controversy said to have arisen due to respondent No.2 passing the order of not exhibiting the documents tendered being related to the decision regarding not exhibiting the documents referred by the petitioner in his affidavit of evidence i.e. precisely regarding admission of documents in the evidence, Vishal 24/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 we find it necessary to state that act of exhibiting or not exhibiting the documents is only a ministerial act, required to be performed solely for the purposes of having ready reference for the Presiding Officer of the documentary evidence admitted due to being duly proved in accordance with the provisions of the Evidence Act. It needs no saying that only the documents proved in accordance with the provisions of Evidence Act and or admitted due to the consent given by the adversary can be admitted in the evidence and can be taken into consideration for arriving the final decision in a suit. The same is amply clear from the provisions of Civil Manual issued by this Court for the guidelines of the inferior Court and the provisions of Evidence Act. Though it is true that the objection to the admissibility of the documentary evidence attempted to be tendered in a suit is to be taken at the stage of inception of such documents in the evidence still it is amply Vishal 25/40 ::: Downloaded on - 03/10/2014 23:53:56 ::: W.P.902-2014 settled that such objection can be raised until the final argument are advanced in the suit i.e. the admission of particular document being erroneous on the count of it being not proved in accordance with law. It can be further added that depending upon the events occurred in the suit, there may occur varying decisions regarding admissibility of the documents tendered in the suit. It can be further said that the documents initially not permitted to be admitted in the evidence can be admitted by a subsequent decision either due to consent for it being accorded by the adversary or due to lateron the same being proved in accordance with law. Thus the orders regarding admission of the documents and or exhibiting the same can be said to be reaching finality only after delivery of the final judgment in the suit. Even it can be said to have reached finality only in the event of the said decision being not appealed by either of the party. In such contingency the finality would be reached only Vishal 26/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 after disposal of the appeal preferred.
32. The reference to the petition itself reveals that the Civil suit preferred by the petitioner is pending. Having regard to the same, it is difficult to perceive that the order pertaining to the admissibility of the documents in the suit, either of the petitioner or of respondent No.4, today can not be said to have reached the finality. Hence we find it extremely difficult to accept today that the initial order about the admissibility of the documents tendered by the petitioner passed by the respondent No.2 was erroneous or even the later order passed by the Court to which the suit was transferred was correct. It knocks down the bone contention of the petitioner of the order passed by the respondent No.2 was incorrect and or was willfully passed for oblique purposes as canvassed by the petitioner.
Hence we find it extremely difficult to accept the Vishal 27/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 contention of the petitioner that by willfully passing such order, respondent No.2 had committed the offences as alleged by the petitioner.
33. As a matter of fact, we are afraid to accept that passing of any judicial order de horse any other circumstances denoting that it was passed for oblique purpose as alleged by the petitioner in the present case or even otherwise also can ever be a made a foundation for concluding the concerned Presiding Officer having committed an offences.
Such conclusion is obvious in view of such orders being either revisable, appellable and assailable by taking further proceeding in accordance with law.
34. Now considering the submission advanced by the petitioner regarding other circumstances for inferring respondent No.2 having passed impugned orders for oblique purpose, the first circumstance of the District Judge having transferred the suit Vishal 28/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 upon the application made by the petitioner to another Court also clearly appears to be devoid of any merit.
35. Such a conclusion is inevitable as the law pertaining to transfer of suit is well settled to the effect that such powers are to be exercised by the superior Court, when it find substance in the apprehension expressed by the party seeking the transfer that said party will not receive a justice by continuing the suit in same Court or such a continuation may result in miscarriage of justice.
It is also well settled that some times such power is required to be exercised in view of salutary principle that justice is not only required to be made but must appear to have been made.
36. Having regard to the same, we are unable to persuade ourselves to accept the submission that the transfer of the suit from the Court presided Vishal 29/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 over by respondent No.2 to another Court by ipso facto denotes that the order passed or the orders which were made a basis for seeking transfer were erroneous orders or said orders were passed for oblique purpose. We also find that an attempt made by the petitioner to point out the observation made in a transfer order of the orders impugned therein were erroneous or were passed without hearing the petitioner, being uncalled and misconceived in view of all said observations being predominantly made for deciding the request of transfer and not for deciding the correctness or incorrectness of order pointed in the application for transfer. As a matter of fact, even reading said order of transfer passed by the District Judge as a whole, we find same being passed upon principle enunciated by us hereiabove.
37. With regard to the next circumstance relied, of the Court to which the suit was Vishal 30/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 transferred having set aside the order(Exh-71A) passed by respondent No.2 to not exhibit the documents tendered by the petitioner, as observed earlier even the said order can not be said to have reached the finality would be an impediment for thereby construing that the order passed by respondent No.2 allowing the said application preferred in favour of respondent No.4 denotes that the order passed by respondent No.2 was erroneous much less said order being passed for the oblique purpose as canvassed by the petitioner.
38. With regard to the next circumstance canvassed of the applications preferred by respondent No.4 at Exh-71A and order passed thereon or the application at Exh-74 or order passed thereon being not reflected in the Roznama i.e. either preferring of such applications by respondent No.4 and or such orders passed by respondent No.2 therein and or two applications Vishal 31/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 being given same exhibit number, by itself cannot be considered as circumstances denoting that the said applications were later on inserted in the record or respondent No.2 having passed such orders was an interpolation made in the proceeding of the said suit.
39. In the aforesaid context, it can be well said that Roznama/order sheet of the proceeding being required to be maintained by the Sheristedar of the Court merely because of occurring of an error in maintaining it, including that of giving identical exhibit numbers to two different applications and/or such facts being not reflected in the Roznama, by itself also cannot support the submissions in the said regard canvassed by the petitioner. Hence, it is difficult to accept further submission canvassed on such basis that the orders at Exh-71A and at 74 were passed without hearing the petitioner. Needless to add that same Vishal 32/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 might have occur due to the petitioner having failed to remain present on the relevant occasion.
40. For all the said reasons, we are unable to find any substance in the submissions canvassed that the said orders were passed by respondent No.2 by inter polluting the record. As a matter of fact, no such conclusion can be drawn on the basis of said circumstances pointed out by the petitioner. At the cost of repetition, we add that passing of judicial order of interlocutory nature before reaching finality and without there been any other circumstance leading to the conclusion of the relevant order being passed for oblique purpose can never be made foundation for even prima facie concluding that concerned Presiding Officer and in the present case respondent No.2 thereby having committed offence as alleged.
41. Hence, we find absolutely no substance in Vishal 33/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 the submissions canvassed by the petitioner of having made out a case for according sanction under Section 197 of Code of Criminal Procedure.
42. Truly speaking considering the prayers sought by the petitioner in present petition and reproduced earlier, it would have been wholly unnecessary for us to consider the submissions canvassed on behalf of the petitioner and dealt hereinabove, as the same can not be said to have been strictly necessary for deciding the entitlement of the petitioner for the prayers sought. However, considering the erroneous conviction of the petitioner of passing of judicial order in the circumstances canvassed or in the manner in which the same were passed could offer the foundation for coming to the conclusion of respondent No.2 having committed an offence alleged and the zest with which the petitioner who is a party in person had canvassed the same, we deem it Vishal 34/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 necessary to deal it in the present order.
43. Now considering the provisions of Section 197 of Code of Criminal Procedure pertaining to according sanction for the prosecution of the public servant and the judges and particularly the authority prescribed under the said section for according the sanction, after due consideration of the provision of sub clauses (a) of section 197 of Code of Criminal Procedure which runs as under :
" (a) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of the Union, of the Central Government;
(b) in the case of a person who is employed or, as the case may be, was at the time of commission of the alleged offence employed, in connection with the affairs of a State, of the State Government."
makes it abundantly clear that even assuming that some case was made for according sanction due to act allegedly committed by respondent No.2 constituting the offences as complained by the petitioner, then also the authority would have been the State Government.
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44. Hence, we find it difficult to accept any error being committed by respondent No.3 in rejecting application/complaint for according sanction sent by the petitioner due to respondent No.3 not the sanctioning authority. Hence, we further find it extremely difficult to entertain the grievance thereto agitated by petitioner.
Similarly for the same reason, we also find no substance in the grievance made of respondent No.3/ disciplinary Committee of respondent No.3 not taking any cognizance of lateron application/ complaint sent by petitioner for reviewing the decision of rejecting his said complaint or for not taking cognizance of the said application or the letter of reminder about it sent by the petitioner.
As a matter of fact, it is difficult to accept that any duty was casted upon respondent No.3 to communicate to the petitioner about application/ complaint or letter for reviewing the decision or reminder about it was erroneously sent to them by Vishal 36/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 the petitioner. For the same reason, we also do not find any substance in the grievance made of the respondent No.3 or disciplinary committee having not communicated anything about the said applications to the petitioner and or the same having remained pending. Hence, we do not find any substance in the submission canvassed by the petitioner that such act on part of them amounts virtual denial of justice to the petitioner.
45. It can be further added that even considering the extent and scope of Article 235 of the Constitution of India and the purposes for which the disciplinary committee is constituted makes it extremely difficult to accept that any letter sent by the petitioner to respondent No.3 could have been entertained by the said committee.
46. In the said premises, predominantly no case being made of respondent No.2 having committed Vishal 37/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 the offences as alleged, and the matters for which the directions are sought being not within the domain of either respondent No.3 i.e. Hon'ble Chief Justice or the disciplinary committee, we find it difficult to entertain the petition for giving the directions as sought for. Needless to add that we also find the prayer for setting aside the administrative order passed in such circumstances being misconceived. Needless to add that we find petitioner having absolutely failed to make out any case for reviewing the order of respondent No.3 communicated to him.
47. Lastly, with regard to the decisions in the cases of -
(1) State of Bihar vs. Shri P.P. Sharma reported AIR 1991 SC - 1260.
(2) Matajog Dovey vs. H.C. Bhari reported in AIR 1956 S.c. 44 (1).
(3) Mansukhlal Vithaldas Chauhan vs. State of Gujrat reported in AIR 1997 S.C. 3400.
(4) Shalibhadra Shah and others vs. Swami Krishna Bharati and Vishal 38/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 another reported in 1981 Cr.L.J. - 113. (5) S.K. Awasthi vs. State of U.P and Others reported in 2007 CRI.L.J. 382.
(6) Pancham Lal vs. State of U.P. reported in 1999 CR. L.J. 4111. (7) Rajendra Kumar Singh vs. State of M.P. reported in 1999 CR.L.J. 2807.
(8) Badrinath vs. Govt. of T.N reported in AIR 1986 Mad - 3.
relied by the petitioner in support of various legal propositions canvassed, after careful perusal of the said decisions, we find that no dispute can be entertained about the propositions laid by the said decisions since we further find that none of the said decision have an useful baring for deciding the present petition in view of the peculiar aspect of respondent No.3 being not sanctioning authority, we do not find the same being applicable to the present case and as such refrain ourselves to make any thread bare dilation about the said decision for the sake of brevity
48. Resultantly we find no merits in the Vishal 39/40 ::: Downloaded on - 03/10/2014 23:53:57 ::: W.P.902-2014 petition and dismissed the same. Since, it has come to our notice that Civil suit instituted by the petitioner in the year 2000 is yet not decided, we find it expedient to direct the trial Court to decide it as expeditiously as possible and in any event before the end of this year.
49. Petition stands disposed of accordingly.
(P.D. KODE, J.) (V.M. KANADE, J.)
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