Gujarat High Court
Rajendrakumar Prataprai Mehta vs Himanshu Jagdishbhai Gosai & 3 on 30 March, 2017
Author: Sonia Gokani
Bench: Sonia Gokani
R/CR.MA/15197/2016 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 15197 of 2016
In SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015
With
SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015
FOR APPROVAL AND SIGNATURE:
HONOURABLE MS JUSTICE SONIA GOKANI
=========================================================
1 Whether Reporters of Local Papers may be allowed
to see the judgment ?
2 To be referred to the Reporter or not ?
3 Whether their Lordships wish to see the fair copy of
the judgment ?
4 Whether this case involves a substantial question of
law as to the interpretation of the Constitution of
India or any order made thereunder ?
==========================================================
RAJENDRAKUMAR PRATAPRAI MEHTA....Applicant(s)
Versus
HIMANSHU JAGDISHBHAI GOSAI & 3....Respondent(s)
==========================================================
Appearance:
MR. KANJIBHAI M BHUT, ADVOCATE for the Applicant(s) No. 1
MR.DEVENDRA H PANDYA, ADVOCATE for the Applicant(s) No. 1
MR CJ VIN, ADVOCATE for the Respondent(s) No. 4
MR. BHADRISH S RAJU, ADVOCATE for the Respondent(s) No. 1 - 2
PUBLIC PROSECUTOR for the Respondent(s) No. 3
==========================================================
CORAM: HONOURABLE MS JUSTICE SONIA GOKANI
Date : 30/03/2017
CAV JUDGMENT
1. The petitioners in Special Criminal
Application No. 5153 of 2015 have preferred this
petition under Articles 14, 19, 21, 226 and 227
of the Constitution of India read with Section
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482 of the Code of Criminal Procedure, 1973 (for
short, 'the Code'), for payment of compensation
to them for the loss of interest and other costs
due to non-compliance of the directions of this
Court.
2. The facts in capsulized form are as
follows:
The petitioners are the original accused
in Criminal Inquiry Case No. 4 of 2005,
registered with DCB Police Station, Surat. The
petitioners preferred Criminal Misc. Application
No. 2697 of 2005 for quashing the said criminal
case. On 10.08.2005, this Court granted the
interim relief in favour of the petitioners,
subject to the petitioners depositing an amount
of Rs.14,25,000/- with the trial Court, i.e. with
Respondent Nos. 2 and 3, herein. Respondent Nos.
2 and 3 were also directed to invest the same in
any nationalized bank in Fixed Deposits Receipts
(for short, 'FDR'). The order dated 10.08.2005
passed by this Court (Coram: Jayant Patel, J.)
deserves reproduction at this stage:
"
1.Heard Mr.Raju, Ld.counsel for
the petitioner and Mr.Gohil,
Ld.APP for the State, Mr.Munshi
for the respondent No.2-original
complainant.
2.Prima facie, it appears that it
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is not the case of the original
complainant that the signature
was forged or that there was any
bogus document or that any other
document is fabricated and, on
the contrary, the complaint
itself shows that there was
power of attorney executed and
the document executed shows that
the signature is in the capacity
as Power of Attorney and,
therefore, prima facie, it does
not make out a case for
fabrication of any document or
forgery. However, so far as the
allegations made in the
complaint for demand of
consideration received by the
Power of Attorney-holder to be
accounted to the original
complainant as principal is
concerned, it is the case
petitioner that the amount is
paid and there are witnesses for
such purpose. Still, however,
the petitioner has shown
willingness to deposit the full
amount of Rs.14,25,000/-to show
the bonafides of the petitioner
without admitting the guilt.
Mr.Gohil, Ld.APP for the State,
under the instructions of
Mr.J.A.Patel, PSI, stated that
during the course of
investigation it has transpired
that the amount of sale deed is
already paid by the petitioner
to the principal in the presence
of witnesses whose statements
are recorded. Mr.Munshi,
Ld.advocate appearing for the
original complainant submitted
that even if the petitioner is
ready to deposit the amount of
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full consideration the original
complainant is not agreeable for
staying of the proceedings of
investigation.
3.It, prima facie, appears that if
as per the investigation papers
the consideration is paid by the
petitioner to the principal and
there are witnesses for such
purpose, the case, as stated in
the complaint, can not be
accepted on its face value.
Further, as recorded herein
above, on behalf of the
petitioner the willingness is
shown to deposit the entire
amount of the sale consideration
with this court. So far as other
charges of forgery are
concerned, as recorded herein
above, there are no prima facie
ingredients qua such offence.
Hence, following order:
(i) Rule returnable on
28.9.2005.
(ii) Interim relief in terms of
para 17(d) on condition that the
petitioner deposits the full
amount of sale consideration of
Rs.14,25,000/- with the trial
court within a period of 10 days
from today without prejudice to
his rights and contentions in
the petition and without
admitting the guilt. The trial
court shall invest the said
amount with any nationalised
bank in FD Receipts and such
deposit of amount by the
petitioner shall be subject to
further orders which may be
passed by this court at the time
of final hearing of this
petition."
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3. The petitioners approached Respondent
Nos. 2 and 3 to deposit the said amount. However,
they denied to do so, and therefore, the
petitioners approached this Court by way of
Criminal Misc. Application No. 9734 of 2005 in
Criminal Misc. Application No. 2697 of 2005. This
Court (Coram: Jayant Patel,J.), therefore, vide
its order dated 26.08.2005 directed Respondent
Nos. 2, namely the learned Chief Judicial
Magistrate, Surat, to accept the amount of
Rs.14,25,000/-, which was to be tendered by the
petitioners on or before 05.09.2005 with a
clarification that the amount to be deposited in
FDR in pursuance of the order dated 10.08.2005
passed in Criminal Misc. Application No. 2697 of
2005.
The order dated 26.08.2005 would deserve
reproduction at this stage:
"Upon hearing Mr.Popat, learned
Counsel for the petitioners,
Mr.Gohil, learned APP and Mr.Munshi,
learned Counsel for the original
complainant, it appears that there
is no dispute that this Court has
already passed the order on
10.8.2005 and, therefore, the trial
Court had to accept the amount.
However, since the amount is not
accepted, it is directed that the
trial Court namely; the Court of
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Chief Judicial Magistrate at Surat
shall accept the amount of deposit
of Rs.14,25,000/- which may be
tendered by the petitioners on or
before 5.9.2005, in pursuance of the
order dated 10.8.2005 passed by this
Court in Criminal Misc. Application
No.2697 of 2005 and shall be
invested as per the order passed by
this Court in the said matter.
The criminal application is allowed
to the aforesaid extent. Direct
service is permitted."
4. The quashing petition preferred by the
petitioners resulted in their favour and the
inquiry being Criminal Inquiry Case No. 4 of 2005
registered with DCB Police Station, Surat, was
quashed and set aside by this Court vide its
judgment and order dated 16.03.2009.
5. The Respondents, therefore, preferred
appeal being Special Leave Petition (Criminal)
No. 6950 of 2009 before the Apex Court. In that
matter, notice was issued by the Apex Court on
11.09.2009, while ordering as under:
"...In the meantime the amount of
Rs.14,25,000/- deposited by
Respondent Nos. 1 and 2 in terms of
the order dated 10th August, 2005
passed in Cri. Misc. Application No.
2697 of 2005 in the Court of the
Chief Judicial Magistrate, Surat
shall not be refunded without the
leave of this Court. "
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6. Before such a notice issued by the Apex
Court was served on the petitioners, an
application being Criminal Misc. Application No.
8956 of 2009 was filed by them for refund of the
aforesaid amount. This Court (Coram: Akil
Kureshi, J.) vide order dated 15.12.2009 allowed
the said application and directed the trial Court
to refund the amount with the interest that may
have accrued thereon, which reads thus:
"The petitioners pray for a
direction of refund of Rs.
14,25,000/pursuant to order dated
10.8.2005 passed by this Court in
Criminal Misc. Application
No.2697/2005.
Criminal Misc. Application No.
2697/2005 was filed by the
petitioners herein for quashing of
the complaint against them. Learned
Single Judge of this Court on
10.8.2005, made following
observations :
"2. Prima facie, it appears that it
is not the case of the original
complainant that the signature was
forged or that there was any bogus
document or that any other document
is fabricated and, on the contrary,
the complaint itself shows that
there was power of attorney executed
and the document executed shows that
the signature is in the capacity as
Power of Attorney and, therefore,
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prima facie, it does not make out a
case for fabrication of any document
or forgery.
However, so far as the allegations
made in the complaint for demand of
consideration received by the Power
of Attorneyholder to be for staying
of the proceedings of
investigation."
Subsequently, the quashing petition
came to be finally disposed of by
judgement dated 26.3.2009. Learned
Judge was pleased to quash the
complaint and allow the petition.
The petitioners have therefore,
approached the Court seeking refund
of Rs. 14,25,000/deposited before
the Court.
I find substance in the prayer. Said
amount was directed to be deposited
on willingness shown by the
petitioners and to ascertain their
bona fide. However, same was not
ordered to be adjusted for any
purpose. Subsequently when the
complaint itself has been quashed by
allowing Criminal Misc. Application,
there is no further purpose of
retaining the said amount.
Consequently, said amount Rs.
14,25,000/shall be paid over to the
petitioner through Account Payee
cheque after due verification by the
concerned Court along with accrued
interest.
Application is disposed of
accordingly."
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Eventually, Special Leave Petition came
to be dismissed by the Apex Court (Coram: Mr.
H.L. Dattu & Ms. Ranjana Prakash Desai, J. J.)
vide order dated 12.11.2013.
"Upon hearing the counsel the Court
made the following
O R D E R
Dismissed."
7. The petitioners, therefore, preferred an
application being Criminal Misc. Application
No.5386 of 2014 in Criminal Misc. Application No.
2697 of 2005 in wake of the dismissal of the SLP
by the Apex Court. The Court, even otherwise,
had no reason to withhold such an amount, which
had been deposited with Respondent Nos. 2 and 3.
This Court (Coram: Mr. Akil Kureshi, J.),
therefore, passed the following order on
18.07.2014:
"Applicants-original petitioners
seek refund of an amount of Rs.14.25
lacs deposited by them with the
Trial Court pursuant to the order
dated 10.8.2005 passed by this
Court. The applicants had filed a
petition for quashing criminal
proceedings instituted by the father
of respondent No.2. In such petition
on 10.8.2005, learned Single Judge
while admitting the petition and
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granting interim relief directed the
applicants to deposit the full
amount of consideration which came
to Rs.14.25 lacs. It is stated that
such amount was also deposited.
Subsequently, by judgment dated
26.3.2009, in the said petition,
learned Single Judge of this Court
allowed the petition and quashed the
complaint against the applicants.
The applicants, therefore, filed
Criminal Misc. Application No.8956
of 2009 seeking refund of the said
amount of Rs.14.25 lacs. On such
application on 15.12.2009, following
order was passed:
I find substance in the prayer. Said
amount was directed to be deposited
on willingness shown by the
petitioners and to ascertain their
bona fide. However, same was not
ordered to be adjusted for any
purpose. Subsequently when the
complaint itself has been quashed by
allowing Criminal Misc. Application,
there is no further purpose of
retaining the said amount.
Consequently, said amount Rs.
14,25,000/- shall be paid over to
the petitioner through Account Payee
cheque after due verification by the
concerned Court along with accrued
interest.
It appears that when this order was
passed, neither side was about the
pending SLP before the Supreme court
filed by the complainant in which on
11.9.2009, the Supreme Court had
passed following interim order:
In the meantime, the amount of
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Rs.14,25,000/- deposited by
respondent Nos.1 & 2 in terms of the
order dated 10th August 2005, passed
in Cri. Misc. Application No.2697 of
2005 in the Court of Chief Judicial
Magistrate, Surat shall not be
refunded without the leave of this
Court.
In view of such order, the order
dated 15.12.2009 for refund of the
amount could not be implemented.
Subsequently, the Supreme Court
dismissed the appeal as well by
order dated 12.11.2013. The
applicants have therefore filed this
petition for the above noted relief.
Now that the appeal before the
Supreme Court also has been
dismissed, there can be no reason
for withholding such amount. The
said amount therefore shall be
released in the same terms and
conditions as contained in the order
dated 15.12.2009, relevant portion
of which is reproduced hereinabove.
Needless to state that nothing
stated in this order would prejudice
either side in the civil proceedings
stated to have been instituted by
the father of respondent No.2 and
which are pending.
Rule is made absolute accordingly.
Direct service is permitted."
8. Thus, this Court reiterated in its order
dated 18.07.2014 that the release of the amount
of Rs.14.25/- lakh shall be on the same terms and
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conditions, as contained in the order of this
Court dated 15.12.2009.
9. It is the grievance of the petitioners
that despite the clear and unequivocal directions
issued by this Court in Criminal Misc.
Application No. 2697 of 2005 and also in Criminal
Misc. Application No. 9734 of 2005, Respondent
Nos. 2 and 3 did not invest the amount of
Rs.14.25/- lakh in FDR. According to the
petitioners, they were shocked to realize that
Respondent Nos. 2 and 3, in blatant violation of
the orders of this Court failed to deposit the
said amount in FDR.
10. Due to non-compliance with the orders of
this Court dated 10.08.2005 and 26.08.2005, the
petitioners preferred Miscellaneous Civil
Application (Contempt) No. 66 of 2015, under the
provisions of the Contempt of Courts Act, 1971.
The same came to be disposed of by this Court
(Coram: K.S. Jhaveri and A.G. Uraizee, J.J.) by
permitting the petitioner to prefer an execution
petition.
"Learned counsel for the petitioner
seeks permission to withdraw the
present application with a view to
prefer the execution petition.
Permission granted. Application
stands disposed of accordingly."
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11. In the present petition, chief grievance
of the petitioners is that Respondent Nos. 2 and
3 failed to discharge their duties. The amount
deposited by the petitioners with the trial Court
has not gained any interest for more than 10
years. The order of this Court is not
implemented, causing tremendous loss and
prejudice to the petitioners. It is, therefore,
urged that no litigant should be made to suffer
due to a mistake of the Court and it would be the
responsibility of the State to compensate and
grant any loss of interest, Respondent Nos. 2 and
3 shall have to make good the same or
alternatively, the State of Gujarat Respondent
No.1 shall do that. The petitioners have,
therefore, approached this Court seeking
following reliefs:
"12. ...
(a) To allow this petition.
(b) To direct the respondent Nos. 2
and 3 to compensate the petitioners
for the loss of interest and other
costs sustained due to non-
compliance of the directions and
order of this Hon'ble Court being
order dated 10.08.2005 passed in
Criminal Misc. Application No.
2697/2005 and order dated 26.08.2005
passed in Criminal Misc. Application
No. 9374/2005 in Criminal Misc.
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Application No.2697/2005 for
investing the deposit of amount by
the petitioners with any
Nationalized Bank in Fixed Deposit
receipts.
(c) In the alternative, to direct
the respondent Nos. 1 i.e. State of
Gujarat to compensate the
petitioners for the loss of interest
and other costs sustained due to
non-compliance of the directions and
order of this Hon'ble Court being
order dated 10.08.2005 passed in
Criminal Misc. Application No.
2697/2005 and order dated 26.08.2005
passed in Criminal Misc. Application
No. 9374/2005 in Criminal Misc.
Application No. 2697/2005 for
investing the deposit of amount by
the petitioners with any
Nationalized Bank in Fixed Deposit
receipts.
(d) To further direct that the
petitioners be reimbursed or be
granted interest amount at the rate
of 9% or at the rate of interest
applicable for nationalized bank FDs
as on August 2005 whichever is
higher, on the deposited amount of
Rs.14,25,000/- from August 2005
till the date of payment.
(e) ..."
12. Affidavit-in-reply on behalf of
Respondent No.2 , the then Principal Sr. Civil
Judge, Valsad, is filed, wherein, it is objected
that the petitioners cannot invoke the
jurisdiction under Article 226 and 227 of the
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Constitution to enforce the order of this Court.
It, therefore, deserves to be dismissed in
limine. It is also their say that for non-
compliance of the administrative directions
issued by the Courts, where, Respondent No.2 was
not a party, the reliefs cannot be granted
against Respondent No.2. The directions are
neither judicial nor equitable. They cannot ask
for the reliefs under Articles, 14, 19, 21, 226
and 227 of the Constitution read with Section 482
of the Code of Criminal Procedure, 1973 (for
short, 'the Code'). Since, none of the rights
guaranteed under Articles 14, 19, 21, 226 and 227
of the Constitution of India has been violated,
the powers of the High Court of issuing a writ
under Article 226 of the Constitution can be
extended to all such cases, where, the breach of
fundamental rights is alleged. It is, further,
urged that this Court cannot act as an Execution
Court, while exercising jurisdiction under
Article 226 of the Constitution. The petitioners
having not exhausted the alternative remedy, no
interference is desirable. With no judicial
proceedings initiated nor having been concluded,
the right to exercise supervisory jurisdiction
under Article 227 of the Constitution and the
extraordinary powers under Section 482 of the
Code are not to be exercised in absence of any
extraordinary circumstances.
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12.1 Respondent No.2, further, urged that he
was serving as the Chief Judicial Magistrate,
Surat, since 2003. The writ directing the Court
of the Chief Judicial Magistrate, Surat, to
deposit Rs.14.25/- lakh was received on
30.08.2005, and therefore, he had passed order to
place the said amount into the Criminal Court
deposit. Respondent No.3, therefore, deposited
the said amount in the account of Criminal Court
on 02.09.2005. On 02.09.2005, the writ of this
Court in Criminal Misc. Application No. 2697 of
2005 was placed, which was seen by him and an
endorsement was put up by Respondent No.3 that
the writ is received after the amount of
Rs.14.25/- lakh was deposited with the Criminal
Court, on which he had put his signature.
Respondent No.3 was discharging his duties, in
his capacity as a responsible officer of the
Nazir department and he had to do the needful in
view of the order passed by the High Court.
However, Respondent No.3 failed to discharge his
duties, for which Respondent No.2 cannot be held
responsible.
12.2 He, further, urged that the Presiding
Officers of the Court are protected under the
Judicial Officers' Protection Act, 1850 so also
under the Judges Protection Act, 1985. He has
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relied upon Sections 1, 3 and 4 thereof to urge
that the conjoint reading of the same would make
it clear that the Judicial Officers acting in
their judicial capacity are protected in respect
of any act done by them in discharge of their
official duties, provided, he, in good faith,
believed that he has jurisdiction to do so. He,
further, contended that Section 3, thereof,
provides complete immunity and protection.
Reliance is also placed on the judgment of "N.V.
SHAMSUNDER, CIVIL JUDGE (SR. DN.) VS. SAVITABEN
WD/O. SAMBHIRMAL SINGHVI", 2006 (5) Maharashtra
LJ 639. It is urged that after a period of 10
years of his retirement, nothing should touch him
for any inaction on the part of Respondent No.3.
13. Respondent No.3, the then Registrar
Civil Branch, District Court, urged that he was
not a party to the proceedings in which the order
had been passed. He was also not a Judicial
Officer and he was discharging duties as Nazir at
Criminal Court, Surat, when the Administrative
Head was Respondent No.2. Since, Respondent No.2
did not ask him to deposit the amount in FDR,
despite his being aware that the amount was to be
deposited in FDR, he was to follow the orders of
his superior. He had reported to the High Court
on 20.09.2005 in this regard. The report and the
order have been placed on record, which indicate
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that the amount of Rs.14.25/- lakh was accepted
and deposited in Criminal Court deposit. He urged
that there being no indication of FDR by
respondent No.2, he followed the instructions of
his superior.
13.1 It is, further, urged that the Division
Bench of this Court permitted the petitioner to
file execution petition and this Court may not
exercise jurisdiction under Articles 226 and 227
of the Constitution, as none of the fundamental
rights of the petitioners has been breached.
14. Respondent No.4-Mr. R.L. Patel, present
Nazir, also filed his affidavit-in-reply,
contending inter alia that the entire
responsibility is that of Respondent No.2, who
failed to appreciate the order of the High Court
in its true perspective. It is also his say that
even after passing the order dated 02.09.2005 by
this Court and receipt of the writ of the same,
the Respondent No.2 ought to have called the
learned Advocates of both the sides and could
have apprised them of receipt of Criminal Misc.
Application No. 2697 of 2005 and thereby, needed
to have passed an appropriate order. However,
Respondent No.2 did not do anything of that sort
and he also did not rectify his order. He was
prematurely retired on 19.05.2009 because of his
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performance was not found up to the mark.
Furthermore, the responsibility cannot be
fastened on the Chief Judicial Magistrate Court
and so far as the alternative prayer for payment
of compensation by the State would mean utilizing
the public exchequer, which can not be permitted
for a clear fault on the part of Respondent No.2,
and hence, the Court of the Chief Judicial
Magistrate, Surat, be not made liable for the
same.
15. It is necessary at this stage to make a
reference to the Criminal Misc. Application No.
15197 of 2016, preferred by the original
Respondent No.2, who was serving as the Judicial
Officer, Surat, at the relevant point of time. He
has claimed the protection under the Judges'
Protection Act, 1985, and the Judicial Officers'
Protection Act, 1850. It is his say that the
applicant ought not to have joined Respondent
No.2 who was discharging his duties as Judicial
Officer at that time and if there is an adverse
order passed, the party ought to have challenged
the same before the Higher Court. If there was
dissatisfaction with order of the simple deposit,
an application ought to have been made by him for
the fixed deposit receipt (FDR). After the
application for placing the said amount in FDR
was rejected, petitioners did not move the higher
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Court.
When the second writ was received, he
ought to have moved the Court concerned again so
that the appropriate orders could have been
passed. He since slept over his rights, has no
business to join respondent No.2, and therefore,
by rejecting this application heavy costs should
be imposed on him and he also sought discharge
from the main proceedings being Special Criminal
Application No. 5153 of 2015.
16. Both, the main petition and this
application have been heard together. Over and
above the oral submissions, written submissions
have also been made by all the parties.
16.1 The original petitioners have urged that
there is no criminal proceedings nor the
respondent No.2 has been impleaded as an accused
and therefore, the question of discharge does not
arise. It is further their say that the
provisions of Sections 3 (1) of the Judges
Protection Act, 1985, provides for the protection
only in discharge of his judicial or official
duty. Section 3(2) of the said Act provides that
the High Court is assigned the powers to
undertake such actions whether by way of civil,
criminal or departmental proceedings against the
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person who is or was a judge. Under Section 1 of
the Judicial Officers Protection Act, 1850,
provides protection to the judges who acted
judicially of the order passed by them, in
discharge of their judicial duties. This covers
only liability under the civil law. Respondent
Nos. 1 and 2 who were concerned about the loss of
interest and other costs upon non-compliance of
the order of this Court. Therefore, the prayer in
the main petition is to the effect that by
allowing it against all the respondents being the
citizens of this Country the petitioners have
invoked the writ jurisdiction. The law is settled
that the litigant for violation of any other
right also can invoke both the civil and criminal
jurisdiction. Moreover, the law does not debar
any party who is necessary and proper. It covers
the act committed by the judges in judicial
capacity and not for passing an administrative
order on administrative side. It is also the say
of the petitioner that writ was received by the
learned Sessions Judge, Surat, on 01.09.2005 and
this was forwarded to Respondent No.1 who
received it on 02.09.2005 and also had signed
thereon. According to petitioners, nothing could
have been done at their end as there was no
direct service granted by the High Court of the
first order. There were binding directions of
the High Court and it was incumbent upon the
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respondent No.2 to immediately place the amount
deposited in FDR. There was no requirement of
the petitioners to make any separate application.
17. In reply to the written-submissions of
Respondent No.1, Respondent No.2 in his written
submissions stated that in the petition for
contempt namely Misc. Civil Application
(Contempt) No. 66/2015, permission was sought to
be withdrawn with a view to file execution
petition and the present petition is by no means
a execution petition. There is no question of
exercising either plenary jurisdiction under
Article 226 or supervisory jurisdiction under
Article 227 of the Constitution of India nor is
there any scope of exercising powers under
Section 482 of the Code. The petitioners have not
opted to file execution petition. The petitioners
instead chose to file Special Criminal
Application No. 5153 of 2015, which is untenable
under the law. The petition has been filed for
violation of the fundamental rights and not for
scandalizing the Court under the Contempt of
Courts Act. A petition for violation of
fundamental right is surely maintainable but the
petitioner has already chosen the remedy by way
of execution petition before the Division Bench
therefore on the humanitarian ground also it is
not tenable.
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17.1 It is further their say that the
contention of petitioners that Respondent No.2
did not pass any order on judicial side but on
administrative side is the contention raised for
the first time and is nothing but an eye-wash.
Reliance in this regard is placed on decision of
the Apex Court in 'RACHAPUDI SUBBA RAO VS. THE
ADVOCATE GENERAL, STATE OF AP', AIR 1981 SC 755.
According to Respondent No.2 in the contempt
petition, certain allegations were made in
respect of discharging of duties by the
respondent No.2 undermining the dignity and
authority of the Court. The Division Bench was
not impressed by any "wild and reckless
allegations". The money was lying with the trial
Court and it did not gain any interest for almost
10 years. There were the very recital in the
contempt petition which was challenged on
23.12.2014 and was withdrawn on 15.01.2015 within
a very short span of three weeks without even
issuance of notice to any alleged contemptors.
This remedy according to Respondent No.2 is not
available to the petitioners.
18. Respondent No.4 made written submissions
to emphasize on the aspect that on 02.09.2005, an
application was submitted to the petitioners for
depositing the amount. The Nazir placed the
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details and Respondent No.2 mis-read the orders
of this Court on 26.08.2005. Therefore it was
mandatory for Respondent No.2 to follow the same.
After receiving the writ of the order dated
10.08.2005 at 01:00 p.m. respondent No.2 called
the advocates and ought to have informed them of
receipt of writ of the order dated 10.08.2005.
Respondent No.2 while discharging his duties on
administrative side was empowered to recall his
order dated 02.09.2005 and pass appropriate
orders for depositing the amount of RS.14.25/-
lakh as FDR with any nationalized bank. He
however did not do so. The order which was passed
on 02.09.2005 was an administrative order and
therefore, Respondent No.2 shall not be entitled
to invoke the protection under the Judicial
Officers' Protection Act, 1850. The interest
amount approximately would be Rs.12.15/- lakh.
The total amount thus would be Rs.14.25/ lakh and
interest component. It is a classic case where
respondent No.2 would be directly responsible for
his folly.
19. The High Court could have undertaken the
process of departmental proceedings so as to fix
the responsibility. The High Court as well as the
State Government would be hit by Rule 24(2)(b) of
the Gujarat Civil Services (Pension) Rules which
lays down a restriction that no departmental
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proceedings shall be initiated without the
sanction of Hon'ble the Governor and it shall
also not be initiated in respect of any event
which took place before about four years from the
date of superannuation. The incident alleged is
of the year 2005 and the respondent No.2 was
compulsorily retired from the services and
therefore it must be nearly 8 years since
Respondent No.2 retried from the service as a
judicial officer and therefore, neither the High
Court nor the State Government shall be permitted
to initiate any proceedings for recovery. It
further urged that Rule 189 of the Gujarat High
Court Rules, 1993 provides that every order
passed under Article 226 of the Constitution of
India including an order as to costs shall be
drawn as if it is a decree and the same shall be
executable in the manner provided under the Code
of Civil Procedure, 1908. Rule 190 of the Gujarat
High Court Rules, 1993, prescribes execution of
the decree on original side. It was therefore,
urged that the order passed by this Court should
be in the form of a decree in favour of the
petitioners which should be enforceable in the
subordinate Court as a money decree against
Respondent No.2. It is also urged that money of
public exchequer cannot be utilized to correct
the wrong committed by Respondent No.2 in his
individual capacity and Respondent No.2 should be
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made liable to pay the same from his own pocket.
20. In reply to the submissions of
Respondent No.4, Respondent No.2 has urged that
all the questions are to be decided in Special
Civil Suit after recording evidence of the
concerned parties and after giving opportunity of
cross-examination etc. wherein the veracity of
the witnesses could be decided. The present
proceedings are wholly misconceived. It is urged
that the order of Respondent No.2 is wrongly
termed as an administrative order to deny him the
protection that he would get under the Judicial
Officers' Protection Act, 1850. He was working
in his individual capacity and it is a trite law
that no judge or magistrate functions in their
individual capacity while discharging duties as a
judge or a magistrate. Even if the function was
administrative, the Nazir of the Court was to
handle money matter as per Paragraphs 559, 668
and 672 of the Criminal Manual. In compliance
with the second writ issued by the High Court for
investing money in FDR, petitioners could have
obtained an administrative order from Respondent
No.2. It is further the say of Respondent No.2
that neither the learned Advocate nor the
petitioners submitted any application after the
first writ was received and that the party was
well aware that there was no direction for
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investing the amount in FDR. It is gross
negligence on the part of the petitioners. It is
his say that he had been made to retire and not
compulsorily. Ministerial acts are to be
performed by the Nazir and therefore, he needed
to obtain the signature of Respondent No.2 and
could have taken directions for FDR. It is urged
that there was no intention or aim on his part to
cause any loss as he was discharging his duties
under the care and custody of the High Court. It
is further his say that judicial functions are
required to be performed while administrative and
ministerial functions are to be performed by the
authorized subordinates. In the present matter
according the Respondent the administrative /
ministerial functions were delegated. i.e. all
the account matters are being carried out by the
Nazir in each and every court of the Gujarat
State. According to the Respondent the
petitioners never approached the High Court on
administrative side for redressal of their
grievance and they ought to have obtained money
decree under Section 80 of the CPC.
21. Following questions arise for
consideration before this Court in wake of the
averments set out in the petition and the rival
contentions raised:
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(i) Whether this petition under
Articles 226 and 227 of the
Constitution of India read with
Section 482 of the Code for payment
of compensation to the petitioner for
loss of interest and other costs
sustained due to non-compliance of
the order of this Court is
maintainable?
(ii) Whether such a petition is
maintainable in wake of the order of
the Division Bench of this Court
passed in Contempt Petition being
Miscellaneous Civil Application
(Contempt) No. 66 of 2015 under the
provisions of the Contempt of Courts
Act, 1971?
(iii) Whether Respondent No.2 is to
be granted immunity for having
passed an order while discharging
duties as a judicial officer?
22. A conjoint discussion of the first and
second points would be necessitated at the
outset. The uncontroverted facts which emerge are
that the petitioner had approached this Court by
preferring Criminal Misc. Application No. 2696 of
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2005 under Section 482 of the Code for quashing
the complaint being Inquiry Criminal Case No. 4
of 2005 registered with DCB Police Station,
Surat, for the offence punishable be under
Sections 465, 467, 468, 471, 420, 114 read with
120-B of the Indian Penal Code. They also
challenged the order passed by the learned
Judicial Magistrate, Surat, on 02.02.2005 for
sending the said FIR to the police Station for
investigation under Section 156(3) of the Code.
23. It was the case of the private
complainant that he along with five others had
executed the power-of-attorney in respect of
parcels of land which were aggregated in form of
one plot on 06.11.2001 in favour of the present
petitioner No.1. It was alleged that petitioner
No.1 in criminal conspiracy with petitioner No.2
sold the said piece of land without consideration
and the consideration was not passed on to the
complainant. The complainant therein had made
serious allegation against present petitioners
and the complaint thus filed on 02.02.2005 was
ordered to be inquired under Section 156(3) of
the Code by DCB, Surat, and report within 30
days.
24. This Court (Coram: Jayant Patel, J.)
while issuing rule on 10.08.2005 granted interim
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relief in terms of Paragraph-17(d) of that
application. The petitioners were also directed
to deposit full amount of Rs.14.25/- lakh with
the trial Court within a period of 10 days
without prejudice to the rights and contentions
of the petitioners and without admitting their
guilt. The Trial Court was directed to invest the
said amount in any nationalized bank in fixed
deposit and such deposit of the amount was made
subject to the further orders of this Court which
was to be passed at the time of final hearing.
25. An application being Criminal Misc.
Application No. 9734 of 2005 was moved in
Criminal Misc. Application No. 2697 of 2005 and
this Court noticed that the trial Court did not
accept the amount namely the Court of Judicial
Magistrate, Surat. This Court (Coram: Jayant
Patel, J.) particularly directed the trial Court
at Surat to accept the amount of Rs.14.25/- lakh
which was tendered by the petitioners on or
before 05.09.2005, with a further direction and
to deposit the same in FDR pursuant to the order
dated 10.08.2005. This Court thus reiterated
that the said amount to be invested as per the
earlier order, i.e. dated 10.08.2005, and the
said application (Criminal Misc. Application No.
9734 of 2005) was disposed of by allowing the
same to the aforesaid extent.
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26. Eventually, learned Judge of this Court
on 26.03.2009 quashed and set aside the said
inquiry being Criminal Inquiry Case No. 4 of 2005
by a detailed order (Coram: S.B. Brahmbhatt, J.)
by allowing Criminal Misc. Application No.2697 of
2005.
27. The petitioners sought back the said
amount of Rs.14.25/- lakh by preferring Criminal
Misc. Application No. 8956 of 2009 and this Court
(Coram: Akil Kureshi, J.) passed the order on
15.12.2009.
27.1 The challenge to the said judgment
and order of 26.03.2009 by way of Special Leave
Petition No. 6950 of 2009 where initially the
court directed stay against withdrawal of amount
of Rs.14.25/- lakh but eventually the same also
ended in favour of the petitioners and the Apex
Court dismissed the SLP No. 6950 of 2009 on
12.11.2013.
27.2 The petitioners therefore sought refund
of the amount of Rs.14.25/- lakh deposited with
the trial Court in wake of the order passed by
this Court on 10.08.2005 by preferring Criminal
Misc. Application No. 5386 of 2014 for direction
by reproducing all the orders passed earlier and
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noticing the dismissal of the appeal by the Apex
Court, learned Judge (Coram: Akil Kureshi, J.)
held that there was no reason for withholding the
said amount and therefore, directed the release
of the same on the terms and conditions as
contained in the order dated 15.12.2009 passed in
Criminal Misc. Application No. 8956 of 2009, as
referred to herein above at Paragraph-6.
28. Pursuant to the said order when an
application was made on 13.08.2014 before the
learned Judicial Magistrate in Inquiry Criminal
Case No. 4 of 2005, the Court directed the Nazir
to verify the same on 13.08.2014 vide its order
dated 19.08.2014.
29. The report of the Nazir was submitted on
22.08.2014 that the deposit of Rs.14.25/- lakh
had been made but, no FDR of the same had been
directed. Accordingly the order came to be
passed on 18.09.2014 by the learned Judicial
Magistrate on 18.09.2014, specifying therein that
the said amount of Rs.14.25/- lakh has been
deposited as deposit simply in Register 'C' and
the said amount has not been fixed deposited any
time. The Court also noted in the said order that
the petitioner No.2 had submitted an application
dated 17.09.2014 expressing to forego his right
in favour of petitioner No.1 to receive the
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entire amount and therefore total sum of
Rs.14.25/- lakh was directed to be paid by an
account payee cheque to the petitioner No.1
30. In wake of chronology of events
mentioned herein above, the petitioner here in
had approached the Bench taking up the matters
relating to contempt of court and their contempt
application was not entertained. It was withdrawn
with a liberty to prefer execution petition.
31. It is a matter of record that the
petitioners have chosen to approach this court
under Article 226 and Article 227 of the
Constitution of India read with Section 482 of
the Code of Criminal Procedure rather than going
through the mode of execution petition. When the
Bench taking up the contempt matters permitted
the petitioner to withdraw the contempt
application to prefer execution petition, it
would not mean that they would be precluded to
take other viable and effective redressal measure
available to them under the law. It is the choice
of the parties when there are more than one
recourses available to seek redressal of their
cause by choosing from those available legal
options. Merely because The petitioners chose not
to challenge the order of the Division Bench
which permitted execution petition and if they
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later on also, did not get such an order
modified, it can never be held therefore that the
legal recourses which are otherwise provided for
all other litigants should be selectively denied
to the petitioners. Again, the issue raised in
this petition needed adjudication. Execution
petition can be preferred once there is a decree
of the competent Court. Without pre-existing
right determined by the competent court,
preferring the execution petition would have
served no purpose. The trial Court has already
ordered refund of the amount of Rs.14.25/- lakh
by way of account payee cheque. What petitioner
seeks is the interest that may have accrued on
the amount and compensation for the loss which
would require adjudication. Therefore also, that
mode of preferring execution petition
straightaway hardly was viable.
32. Article 226 can be resorted to for any
violation of fundamental rights under Part III of
the Constitution of India and also for any other
purposes.
32.1 In the case of Whirlpool Corporation v.
Registrar of Trade Marks, Mumbai and others,
reported in (1998) 8 SCC 1, the Apex Court has
held that existence of an alternative remedy is
not a constitutional bar to High Court's
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jurisdiction but is a self-imposed restriction.
The alternative remedy would not operate as a bar
(i) where the writ petition seeks enforcement of
any of the fundamental rights; (ii) where there
is violation of principles of natural justice; or
(iii) where the order or the proceedings are
wholly without jurisdiction or the vires of an
Act is challenged. It would be appropriate to
reproduce the relevant observations of the said
decision, which read as under :
"14. The power to issue prerogative
writs under Article 226 of the
Constitution is plenary in nature
and is not limited by any other
provision of the Constitution. This
power can be exercised by the High
Court not only for issuing writs in
the nature of Habeas Corpus,
Mandamus, Prohibition, Quo Warranto
and Certiorari for the enforcement
of any of the Fundamental Rights
contained in Part III of the
Constitution but also for "any other
purpose".
15. Under Article 226 of the
Constitution, the High Court, having
regard to the facts of the case, has
a discretion to entertain or not to
entertain a Writ Petition. But the
High Court has imposed upon itself
certain restrictions one of which is
that if an effective and efficacious
remedy is available, the High Court
would not normally exercise its
jurisdiction. But the alternative
remedy has been consistently held by
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this Court not to operate as a bar
in at least three contingencies,
namely, where the writ petition has
been filed for the enforcement of
any of the Fundamental Rights or
where there has been a violation of
the principle of natural justice or
where the order of proceedings are
wholly without jurisdiction or the
vires of an Act is challenged. There
is a plethora of case-law on this
point put to cut down this circle of
forensic Whirlpool, we would rely on
some old decisions of the
evolutionary era of the
constitutional law as they still
hold the field."
32.2 In the case of 'ANANDI MUKTA SADGURU
SHREE MUKTA JEEVANDASSWAMI SUVARNA JAYA Vs. V.R.
RUDANI & ORS.', (1989) 2 SCC 691, the Apex Court
was considering the question as to against whom
and when the writ of mandamus can be issued. The
relevant observations made by the Apex Court
reads thus:
"15. If the rights are purely of
a private character no mandamus can
issue. If the management of the
college is purely a private body
with no public duty mandamus will
not lie. These are two exceptions to
Mandamus. But once these are absent
and when the party has no other
equally convenient remedy, mandamus
cannot be denied. It has to be
appreciated that the appellants--
trust was managing the affiliated
college to which public money is
paid as Government aid. Public money
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paid as Government aid plays a major
role in the control, maintenance and
working of educational institutions.
The aided institutions like
Government institutions discharge
public function by way of imparting
education to students. They are
subject to the rules and regulations
of the affiliating University. Their
activities are closely supervised by
the University authorities.
Employment in such institutions,
therefore, is not devoid of any
public character. (See--The Evolving
Indian Administration Law by M.P.
Jain [1983] p. 266). So are the
service conditions of the academic
staff. When the University takes a
decision regarding their pay scales,
it will be binding on the
management. The service conditions
of the academic staff are,
therefore, not purely of a private
character. It has super-added
protection by University decisions
creating a legal right-duty
relationship between the staff and
the management. When there is
existence of this relationship,
mandamus can not be refused to the
aggrieved party.
16. The Law relating to
mandamus has made the most
spectacular advance. It may be
recalled that the remedy by
prerogative writs in England started
with very limited scope and suffered
from many procedural disadvantages.
To overcome the difficulties, Lord
Gardiner (the Lord Chancellor) in
pursuance of Section 3(1)(e) of the
Law Commission Act, 1965, requested
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the Law Commission "to review the
existing remedies for the judicial
control of administrative acts and
omission with a view to evolving a
simpler and more effective
procedure." The Law Commission made
their report in March 1976 (Law Com
No. 73). It was implemented by Rules
of Court (Order 53) in 1977 and
given statutory force in 1981 by
Section 31 of to Supreme Court Act
1981. It combined all the former
remedies into one proceeding called
Judicial Review. Lord Denning
explains the scope of this "judicial
review":
"At one stroke the courts could
grant whatever relief was
appropriate. Not only certiorari and
mandamus, but also declaration and
injunction. Even damages. The
procedure was much more simple and
expeditious. Just a summons instead
of a writ. No formal pleadings. The
evidence was given by affidavit. As
a rule no cross-examination, no
discovery, and so forth. But there
were important safeguards. In
particular, in order to qualify, the
applicant had to get the leave of a
judge. The Statute is phrased in
flexible terms. It gives scope for
development. It uses the words
"having regard to". Those words are
very indefinite. The result is that
the courts are not bound hand and
foot by the previous law. They are
to 'have regard to' it. So the
previous law as to who are--and who
are not--public authorities, is not
absolutely binding. Nor is the
previous law as to the matters in
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respect of which relief may be
granted. This means that the judges
can develop the public law as they
think best. That they have done and
are doing." (See--The Closing
Chapter--by Rt. Hon Lord Denning p.
122).
17. There, however, the
prerogative writ of mandamus is
confined only to public authorities
to compel performance of public
duty. The 'public authority' for
them mean every body which is
created by statute--and whose powers
and duties are defined by statue. So
Government departments, local
authorities, police authorities, and
statutory undertakings and
corporations, are all 'public
authorities'. But there is no such
limitation for our High Courts to
issue the writ 'in the nature of
mandamus'. Article 226 confers wide
powers on the High Courts to issue
writs in the nature of prerogative
writs. This is a striking departure
from the English law. Under Article
226, writs can be issued to "any
person or authority". It can be
issued "for the enforcement of any
of the fundamental rights and for
any other purpose".
18. Article 226 reads:
"226. Power of High Courts to issue
certain writs (1) Notwithstanding
anything in Art. 32, every High
Court shall have power, throughout
the territories in relation to which
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it exercises jurisdiction to issue
to any person or authority including
in appropriate cases, any
Government, within those territories
directions, orders or writs,
includeing (Writs in the nature of
habeas corpus, mandamus,
prohibition, quo warranto and
certiorari, or any of them for the
enforcement of any of the rights
conferred by Part II and for any
other purpose.
XXX XXX XXX XXX"
19. The scope of this article has
been explained by Subba Rao., in
Dwarkanath v. Income Tax Officer,
[1965] 3 SCR 536 at (540-41):
"This article is couched in
comprehensive phraseology and it ex-
facie confers a wide power on the
High Courts to reach injustice
wherever it is found. The
Constitution designedly used a wide
language in describing the nature of
the power, the purpose for which and
the person or authority against whom
it can be exercised. It can issue
writs in the nature of prerogative
writs as understood in England; but
the use of the expression "nature",
for the said expression does not
equate the writs that can be issued
in India with those in England, but
only draws an analogy from them.
That apart, High Courts can also
issue directions, orders or writs
other than the prerogative writs. It
enables the High Courts to mould the
reliefs to meet the peculiar and
complicated requirements of this
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country. Any attempt to equate the
scope of the power of the High Court
under Article 226 of the
Constitution with that of the
English Courts to issue prerogative
writs is to introduce the
unnecessary procedural restrictions
grown over the years in a
comparatively small country like
England with a unitary form of
Government into a vast country like
India functioning under a federal
structure. Such a construction
defeats the purpose of the article
itself."
20. The term "authority" used in
Article 226, in the context, must
receive a liberal meaning unlike the
term in Article 12. Article 12 is
relevant only for the purpose of
enforcement of fundamental rights
under Art. 32. Article 226 confers
power on the High Courts to issue
writs for enforcement of the
fundamental rights as well as non-
fundamental rights. The words "Any
person or authority" used in Article
226 are, therefore, not to be
confined only to statutory
authorities and instrumentalities of
the State. They may cover any other
person or body performing public
duty. The form of the body concerned
is not very much relevant. What is
relevant is the nature of the duty
imposed on the body. The duty must
be judged in the light of positive
obligation .owed by the person or
authority to the affected party. No
matter by what means the duty is
imposed. If a positive obligation
exists mandamus cannot be denied.
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21. In Praga Tools Corporation v.
Shri C.A. Imanual & Ors., [1969] 3
SCR 773, this Court said that a
mandamus can issue against a person
or body to carry out the duties
placed on them by the Statutes even
though they are not public officials
or statutory body. It was observed
(at 778):
"It is, however, not necessary that
the person or the authority on whom
the statutory duty is imposed need
be a public official or an official
body. A mandamus can issue, for
instance, to an official or a
society to compel him to carry out
the terms of the statute under or by
which the society is constituted or
governed and also to companies or
corporations to carry out duties
placed on them by the statutes
authorising their undertakings. A
mandamus would also lie against a
company constituted by a statute for
the purpose of fulfilling public
responsibilities.(See Halsbury's
Laws of England (3 rd Ed. Vol. II p.
52 and onwards)."
22. Here again we may point out
that mandamus cannot be denied on
the ground that the duty to be
enforced is not imposed by the
statute. Commenting on the
development of this law, Professor
De Smith states: "To be enforceable
by mandamus a public duty does not
necessarily have to be one imposed
by statute. It may be sufficient for
the duty to have been imposed by
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charter, common law, custom or even
contract." (Judicial Review of
Administrative 'Act 4 Ed. p. 540).
th
We share this view. The judicial
control over the fast expanding maze
of bodies effecting the rights of
the people should not be put into
water-tight compartment. It should
remain flexible to meet the
requirements of variable
circumstances. Mandamus is a very
wide remedy which must be easily
available 'to reach injustice
wherever it is found'.
Technicalities should not come in
the way of granting that relief
under Article 226. We, therefore,
reject the contention urged for the
appellants on the maintainability of
the writ petition."
32.3 Thus, the High Court has wide powers to
redress injustice found anywhere. This also
enables the High Court to mould the reliefs to
meet the requirements of mitigating injustice
once there is positive obligation of the
authority towards the affected party, it can be
exercised. Moreover, the inherent powers under
Section 482 of the Code also can be exercised for
serving the ends of justice. While exercising
jurisdiction under this provision, the High Court
needs to sparing and cautiously exercise the
same, to justify the tasks laid down in the
section itself, as held in case of 'MONICA KUMAR
(DR.) VS. STATE OF U.P. AND OTHERS', (2008) 8 SCC
781.
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32.4 In light of the discussion above, it can
be held that this petition in the present form is
maintainable and their having not chosen
execution petition would not bar this remedy
provided under the law.
33. Adverting to the facts at this juncture,
directions issued by this Court in Criminal Misc.
Application No. 2697 of 2005 vide its order dated
10.08.2005 was to deposit an amount of Rs.14.25/-
lakh with the trial Court and to invest the same
in FDR in any nationalized bank does not leave
any kind of ambiguity. Both the orders are as
clear as broad day light. Thereafter also, vide
order passed in Criminal Misc. Application No.
9734 of 2005 seeking extension of time to deposit
the amount the Court once again on 26.08.2005
while extending such time period reiterated the
earlier directions of investing such an amount by
way of the fixed deposit. The earlier order of
10.08.2005 had no direct service and the writ
was sent by the registry of the Court at Surat,
whereas, the second order of 26.08.2005 was
served upon the Sessions Court by the
petitioners.
34. On 02.09.2005 as can be culled out from
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the affidavit-in-reply of Respondent No.4 that
when the petitioner submitted an application for
depositing the amount, the then Nazir (Respondent
No.3) placed the same before Respondent No.2 who
passed an order of depositing the amount of
Rs.14.25/- lakh under the head of 'Criminal Court
Deposit for now'. The reference is also made in
the order dated 26.08.2005 of the earlier order
dated 10.08.2005. Respondent No.2 further
received the earlier writ of this Court of
10.08.2005 subsequently on the very date, i.e.
02.09.2005 at 01:00 p.m. but chose not to make
any change in his order. It was open to him to
call the parties and pass necessary orders or to
do on his own in due compliance of the order of
the High Court. The directions as reproduced
herein above were extremely clear of fix
depositing the amount.
There is neither any ambiguity nor an
iota of doubt that this was meant to be executed
at the end of the trial Court. Nazir also was
equally responsible to ensure that the High
Court's order are duly complied with. There were
not unusual orders which would have required
deeper comprehension. Assuming that in the matter
before the High Court, the learned JMFC would
have no powers to pass any order by independently
examining the issue, the least the Presiding
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Officer could do is to read the order and to
comply with the directions that the High Court
may issue.
35. The Presiding Officer was required to
ensure such compliance of the orders of the High
Court. It is quite true that on administrative
side the ministerial staff has to assist the
Court for running the administration, yet in the
judicial and supervisory capacity, it becomes the
onus of the Presiding Officer to fulfill the
obligations of the post by following the
directions issued by the Superior Court. Again,
as mentioned in affidavit-in-reply by respondent
Nos. 3 and 4 Nazir did draw the attention of
Respondent No.2 . Nazir directly could have fixed
deposited the amount following directions. He
could have reported to the learned District &
Sessions Judge but, he on the contrary reported
of compliance to the High Court which is silent
on fixed deposit of amount. The fact thus
remains that respondent No.2 in particular and
Respondent No.3 failed to implement the
directions of the High Court. The fresh attempt
to shift the blame on litigants for not drawing
attention once again is a defence far from being
bona fide.
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36. Much emphasis is laid on the distinction
between the judicial and ministerial functions
and Respondent No.2 has also sought to invoke the
Judicial Officers' Protection Act, 1850 and
Judges (Protection) Act, 1985 on the ground that
he is immune to be proceed against. It would be
apt to refer to the decision of the Apex Court in
'JAMAL UDDIN AHMAD VS. ABU SALEH NAJMUDDIN AND
ANOTHER', (2003) 4 SCC 257, Paragraph-14 thereof
reads thus:
"The functions discharged by a
High Court can be divided broadly
into judicial and administrative
functions. The judicial functions
are to be discharged essentially by
the judges as per the rules of the
Court and cannot be delegated.
However, administrative functions
need not necessarily be discharged
by the judges by themselves, whether
individually or collectively or in a
group of two or more, and may be
delegated or entrusted by
authorization to subordinates unless
there be some rule of law
restraining such delegation or
authorisation. Every High Court
consists of some administrative and
ministerial staff which is as much a
part of the High Court as an
institution and is meant to be
entrusted with the responsibility of
discharging administrative and
ministerial functions.
There can be 'delegation' as also
there can be 'authorization' in
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favour of the Registry and the
officials therein by empowering or
entrusting them with authority or by
permitting a few things to be done
by them for and or behalf of the
Court so as to aid the judges in
discharge of the judicial
functioning. Authorization may take
the form of formal conferral or
sanction or may be by way of
approval or countenance. Such
delegation or authorization is not a
matter of mere convenience but a
necessity at times.
The Judges are already overburdened
with the task of performing judicial
functions and the constraints on
their time and energy are so
demanding that it is in public
interest to allow them to devote
time and energy as much as possible
in discharging their judicial
functions, relieving them of the
need for diverting their limited
resources of time and energy to such
administrative or ministerial
functions, which, on any principle
of propriety, logic, or necessity
are not required necessarily to be
performed by the Judges. Receiving a
cause or a document and making it
presentable to a Judge for the
purpose of hearing or trial and many
a functions postdecision, which
functions are administrative and
ministerial in nature, can be and
are generally entrusted or made over
to be discharged by the staff of the
High Court, often by making a
provision in the rules or under the
orders of the Chief Justice or by
issuing practice directions, and at
times, in the absence of rules, by
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sheer practice. The practice gathers
the strength of law and the older
the practice the greater is the
strength. The Judges rarely receive
personally any document required to
be presented to the Court. Plaints,
petitions, memoranda or other
document required to be presented to
the Court are invariably received by
the administrative or ministerial
staff, who would also carry out
preliminary scrutiny of such
documents so as to find that they
are in order and then make the
documents presentable to the judge,
so that the valuable time of the
Judge is not wasted over such
matters as do not need to be dealt
with personally by the Judge."
37. Of course, the Respondent No.3 drew the
attention of the learned Presiding Judge but he
could not have left the task half done. His
assistance as the Nazir of that Court was to
provide administrative assistance and putting the
deposited amount in FDR as per the directions of
the High Court. Any omission or negligence on the
part of the Respondent No.2 could not have
allowed the Respondent No.3 to also not perform
his part of duties.
38. Thus, the act of fixed depositing the
amount deposited by the petitioners, as per the
directions of this court, can be held to be
ministerial task as nothing was left to
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discretion of anyone. Judicial function as held
by the Apex court in the case of 'JAMAL UDDIN
AHMED VERSUS ABU SALEH' (supra), is to decide on
the disputes after hearing the parties and the
decision taken fixes the rights and obligations
of the parties. The ministerial act,is to be
performed in obedience of the mandate given by
the legal authority where individual does not
have to exercise his discretion. Of course , when
an application was tendered by the petitioners,
the order of fixed deposit was to be passed by
the Respondent No.2 as he needed to ensure due
compliance of the mandate given by the High
Court. The task which was to be performed by him
essentially could be termed as ministerial work.
The Apex Court in case of 'STATE OF MAHARASHTRA
VERSUS SAEED SOHAIL SHEIKH', reported in
(2012)13 SCC 192, referring to the decision of
'PROVINCE OF BOMBAY VERSUS KUSHAL DAS ADANI', AIR
1950 Supreme Court 222 has laid down a test, i.e.
is there any duty to decide judicially ? The real
test which would distinguishes a quasi judicial
powers from an administrative act is also the
duty to act judicially.
39. It is also the say of respondent No.2
without admission that even if it is believed
that the officer had not acted on 'judicial side'
but on 'administrative side', while so acting,
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there was no ill intention on the part of the
respondent no.2 by this omission.
This Court of course while examining the
entire material has not found the act of the
respondent no. 2 being malicious or mala fide .
It is also not culling out anywhere that he was
to be benefited from such act of non-deposit of
amount. It is prima facie the act of omission or
negligence. Requisite care necessary towards the
duty appears to be missing. The Respondent no.2
Once having noted that the previous order had not
arrived and while admitting the amount, when he
directs the deposit 'for now' and yet, he neither
bothered to find out such order of the 10.08.2005
nor he attempted to change his earlier order on
receiving the writ on the very day.
40. The contention taken by respondent no. 2
is that Section 1 of the judicial officers'
protection Act, 1850 provides for protection of
judges who acted judicially and ordered done by
him in the discharge of judicial duty. This
according to him would get covered by the
decision of the Apex Court rendered in the case
of 'RACHAPUDI SUBBA RAO VS. THE ADVOCATE GENERAL,
STATE OF AP',
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"8. The contention is clearly
unsustainable. Section 1 of the
Judicial Officers' Protection Act,
1850 provides :
"No Judge, Magistrate, Justice of
the Peace, Collector or other person
acting judicially 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 :
Provided that he at the time, in
good faith, believed himself to have
jurisdiction to do or order the act
complained of; and no officer of any
Court or other person, bound to
execute the lawful warrants or
orders of any such Judge,
Magistrate, Justice of the Peace,
Collector or other person acting
judicially shall be liable to be
sued in any Civil Court, for the
execution of any warrant or order,
which he would be bound to execute,
if within the jurisdiction of the
person issuing the same."
9. As pointed out by this
Court in Anwar Hussain v. Ajoy Kumar
Mukerjee & Ors the Section affords
protection to two broad categories
of acts done or ordered to be done
by a judicial officer in his
judicial capacity. In the first
category fall those acts which are
within the limits of his
jurisdiction. The second category
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encompasses those acts which may not
be within the jurisdiction of the
judicial officer, but are,
nevertheless, done or ordered to be
done by him, believing in good faith
that he had jurisdiction to do them
or order them to be done.
10. In the case of acts of the
first category committed in the
discharge of his judicial duties,
the protection afforded by the
statute is absolute, and no enquiry
will be entertained as to whether
the act done or ordered to bed done
was erroneous, or even illegal, or
was done or ordered without
believing in good faith."
41. To the same effect is the decision of
'S.P. GOEL VS. COLLECTOR OF STAMPS, DELHI', (1996)
1 SCC 573, where the Apex Court in absence of any
allegation regarding malicious, motivated and
mala fide actions of Registering Officer and
Collector of Stamp protected the Judicial
Officers' (Protection) Act, 1850, for the acts
done in good faith in discharge of his official
duties where a complaint under the Consumer
Protection Act for alleged defect in services.
The Collector of Stamp as defined under Section
2(9) of the Stamp Act according to the Court is
protected under the said Judicial Officers'
(Protection) Act, 1850.
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42. In wake of the discussion above, the
prayers of the petitioners deserve to be
regarded. Considering the interest which needs to
be made payable on the amount of Rs.14.25/- lakh
internal responsibility can be fixed of the
erring officer by the Disciplinary Authority.
However, till then, the process should not
deprive the petitioners of their dues for no
fault of theirs. Only because there are questions
as to who can be held responsible for this
inaction and non-implementation of the orders of
this Court would not permit this Court to deny
the petitioners of their entitlement. It is an
uncontroverted fact that had the order of this
Court complied duly, the amount would have
fetched interest on FDR not only that but from
the year 2014, petitioners need to go from post
to pillar to get back their own amount.
43. Profitable reference to the decision of
the Bombay High Court in case of 'KALURAM SITARAM
VS. THE DOMINION OF INDIA', AIR 1954 Bombay 50
requires to be made at this stage. The High Court
was considering the question of responsibility of
the railway administration for the damage for
non-delivery of four silver bars. Section 75 of
the Indian Railways act prescribed a statutory
limitations upon the responsibility of the
railway administration under section 72 of the
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said act which defined the responsibility of a
railway administration for the loss, destruction
or deterioration of animals or goods delivered to
the administration to be carried by Railway. This
was a peculiar case according to the Bombay High
Court in the sense that, four silver bars reached
Ballia in the state of Bihar and instead of being
delivered to the person who had the railway
receipts or as the rules of the Railway
administration required, they were delivered to
a person who admittedly was not authorized to
receive them. This became possible by reason of
the complicity of a servant of the railway
administration who was the parcel clerk at the
material time. Therefore according to the Bombay
High Court, the loss caused to the consignor was
entirely due to the negligence or much more than
that due to the fraud practiced by a servant of
the railway administration.
The railway administration prosecuted the parcel
clerk and the person who obtained silver bars
for misappropriation of these bars.
Misappropriation by a servant of the railway
administration also according to the court would
constitute loss within the meaning of the
statute,but apart from legal technicalities there
was no doubt that the consignor suffered not
because of any accident nor because of any act of
God, but because a servant of the railway
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administration happened to be dishonest and
contrary to the rules of the railway
administration and in breach of his authority.
In the said premise Hon'ble Mr. Justice M.C.
Chawla (as his Lordship then was) in his
inimitable style held and observed that the state
when deals with a citizen , it should not rely
on technicalities, once the case of the citizen
is found just ,even when legal defences are
available ,the state must act as an honest
person.
"12. Now, we have often had
occasion to say that when the State
deals with a citizen it should not
ordinarily rely on technicalities,
and if the State is satisfied that
the case of the citizen is a just
one, even though elgal defences may
be open to it, it must act, as has
been said by eminent judges, as an
honest person. In this case, at the
instance of Sir Jamshedji, we have
construed the law and on the law
perhaps the plaintiff has no case at
all. But turning away from the law
and looking to the equities of the
case there can be no doubt that the
railway administration is
responsible for the loss caused to
the plaintiff. As I have said
before, it was entirely due to the
dishonest servant of the railway
administration that the plaintiff
suffered this heavy loss of over
Rs.20,000 and e are sure that the
Dominion of India, although we are
dismissing his suit, will consider
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whether some reasonable compensation
should not be paid to the plaintiff
for the loss he has suffered. Sir
Jamshedji has assured us that he
would do his best to put forward
this point of view to his client,
the Dominion of India, and we have
no doubt that the Dominion of India
will be persuaded by Sir Jamshedji
to take a fair, reasonable and
equitable view of this case and do
something to meet the justifiable
grievance of the plaintiff."
44. In case of 'U.P.S.R.T.C. VERSUS IMTIAZ
HUSSAIN', reported in AIR 2006 SC 649, the very
maxim of equity, namely, 'actus curiae naminem
gravabit' was considered in connection with
correction of clerical or arithmetical mistake in
the award of the Labour Court. It would be
worthwhile to mention as held by the Apex Court
that this maxim was founded upon justice and good
sense which serves a safe and certain guidelines
for administration of law.
"8. The basis of the provision
under Section 152 of the Code is
founded on the maxim 'actus curiae
neminem gravabit' i.e. an act of
Court shall prejudice no man. The
maxim "is founded upon justice and
good sense, and affords a safe and
certain guide for the administration
of the law", said Cresswell J. in
Freeman v. Tranah (12 C.B. 406). An
unintentional mistake of the Court
which may prejudice the cause of any
party must and alone could be
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rectified. In Master Construction
Co. (P) Ltd. v. State of Orissa (AIR
1966 SC 1047) it was observed that
the arithmetical mistake is a
mistake of calculation, a clerical
mistake is a mistake in writing or
typing whereas an error arising out
of or occurring from accidental slip
or omission is an error due to
careless mistake on the part of the
Court liable to be corrected. To
illustrate this point it was said
that in a case where the order
contains something which is not
mentioned in the decree, it would be
a case of unintentional omission or
mistake as the mistake or omission
is attributable to the Court which
may say something or omit to say
something which it did not intend to
say or omit. No new arguments or re-
arguments on merits can be
entertained to facilitate such
rectification of mistakes. The
provision cannot be invoked to
modify, alter or add to the terms of
the original order or decree so as
to, in effect, pass an effective
judicial order after the judgment in
the case.
9. The maxim of equity,
namely, actus curiae neminem
gravabit an act of court shall
prejudice no man, shall be
applicable. This maxim is founded
upon justice and good sense which
serves a safe and certain guide for
the administration of law. The other
maxim is, lex non cogit ad
impossibilia the law does not compel
a man to do what he cannot possibly
perform. The law itself and its
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administration is understood to
disclaim as it does in its general
aphorisms, all intention of
compelling impossibilities, and the
administration of law must adopt
that general exception in the
consideration of particular cases.
The applicability of the aforesaid
maxims has been approved by this
Court in Raj Kumar Dey v. Tarapada
Dey (1987 (4) SCC 398), Gursharan
Singh v. New Delhi Municipal
Committee (1996 (2) SCC 459) and
Mohammod Gazi v. State of M.P. and
others (2000(4) SCC 342). The
principles as applicable to Section
152 CPC are clearly applicable to
Section 6(6) of the U.P. Act. In the
aforesaid background the Labour
Court was not justified in modifying
the award as was originally made.
The High Court also had not
considered this aspect and decided
the writ petition filed by the
present appellant on issues other
than this vital issue.
45. To the same effect is the decision of
the Apex Court rendered in case of 'COMMITTEE-
GFIL Vs. LIBRA BUILD TECH PRIVATE LIMITED. where
GFIL company went into liquidation. The
creditors of the company, filed various claim
petitions against the company in various courts
across the country . The Apex Court on an
application filed, transferred all the cases
pending in the country to the Supreme Court. As
per the direction of the Court to the GFIL
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committee was to sell the properties and it
published advertisement meant for auction of
certain properties of the companies. The
applicants participated in the auction and
submitted their bid to purchase the property
advertised for sale. After being declared as a
successful bidder, the applicant deposited the
entire sale consideration of huge amount and also
the amount for stamp duty to purchase the
property is in question. Having performed their
part of contract, in letter and spirit, the GFIL
committee seller failed to place the applicants
in possession of the property. The Supreme Court
while passing an order and canceling the
transaction in question, directed the Company to
refund the entire sale consideration with
interest. So far as the refund of the stamp duty
amount was concerned, the Supreme Court permitted
the applicants to approach the state government
to claim refund from the state exchequer giving
various reasons. It was a case where contract in
question became void as a result of its
cancellation by an order of the Supreme
Court,which entitled the Applicant to seek
restitution of the money paid to the State for
purchase of stamp duty.
It is with this background, as mentioned above,
the court was of the opinion that Maxim of equity
which is well-settled was required to be borne in
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mind, namely "actus curiae neminem gravabit"
meaning-An act of the Court shall prejudice no
one.
46. Profitable it would be to reproduce the
findings and observations of the Apex Court in
this respect observed as under at Paragraphs- 37,
38 and 39:
37. In our considered opinion, while
deciding a case of this nature, we
have to also bear in mind one maxim
of equity, which is well settled
namely " actus curiae neminem
gravabit " meaning - An Act of the
Court shall prejudice no man. In
Broom's Legal Maxims 10th edition,
1939 at page 73 this maxim is
explained saying that it is founded
upon justice and good sense and
afforded a safe and certain guide
for the administration of law. This
maxim is also explained in the same
words in [(Jenk. Cent.118)]. This
principle is fundamental to any
system of justice and applies to our
jurisprudence. (See: Busching
Schmitz Pvt. Ltd. vs. P.T. Menghani
& Anr.(1977) 2 SCC 835 and Raj Kumar
Dey & Ors. vs. Tarapada Dey & Ors.
(1987) 4 SCC 398)
38. It is thus a settled principle
of law based on principle of equity
that a person cannot be penalized
for no fault of his and the act of
the court would cause no prejudice
to any of his right.
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39. In our considered opinion, the
aforesaid maxim would apply with
full vigour in the facts of this
case and if that is the position
then applicants, in our opinion, are
entitled to claim the refund of
entire amount of stamp duty from the
State Government which they spent in
purchasing the stamp duty for
execution of sale deed in relation
to the properties in question.
Indeed in the light of six reasons
set out supra which, in our
considered opinion, in clear terms
attracts the principle contained in
the aforesaid maxim, the State has
no right to defend the order of SDM
for retaining the amount of stamp
duty paid by the applicants with
them. The applicants' bona fide
genuine claim of refund cannot be
denied on such technical grounds.
47. In the result, this application is
ALLOWED. While DIRECTING the Respondent No.4 to
release the principal amount of Rs.14.25/- lakh,
forthwith. So far as the request for interest and
compensation is concerned respondent No. 1 in
consultation with Respondent No. 5 is directed to
calculate interest that might have accrued
thereon had the said amount of Rs.14.25/- lakh
been fixed deposited at the relevant point of
time, gathering details from a nationalized Bank
of prevalent rate of interest on fixed deposit.
Such amount of interest shall be paid from
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02.09.2005 till the date of this order. The said
amount be disbursed to the petitioners within a
period of EIGHT WEEKS from the date of receipt of
a copy of this order. The cheque shall be
prepared in the name of the petitioner No.1 and
shall be handed over by the Nazir of the Court of
Chief Judicial Magistrate, Surat, to him on or
before 26TH APRIL, 2017.
48. With regard to responsibility as to be
fixed of Respondent No.2 and Respondent No.3-
Nazir, as noted above, both the Judicial
Officers' (Protection) Act, 1850, and the Judges
(Protection) Act, 1985, protect the act done in
the discharge of his judicial duty whether or not
within the limit of his jurisdiction, provided he
acts in good faith. He is not liable to be sued
in any civil Court under the Act of 1850 whereas
under the Act 1985, powers of the Central or
State government or the Supreme Court or the High
Courts to take any action by way of civil,
criminal or departmental proceedings otherwise
are not debarred by this protection.
49. It was essentially an act on ministerial
side as there was hardly anything to be
adjudicated upon and yet it could be said to be
blur of both the functions i.e. judicial as well
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as administrative. Remembering at this stage the
decision of JAMAL UDDIN AHMAD VS. ABU SALEH
NAJMUDDIN AND ANOTHER' (Supra) which says that
judges are overburdened with the task of judicial
work and their energy must not be diverted for
ministerial work and the ministerial staff
engaged for such work is essentially to carry on
such function. In the opinion of this Court
having found prima facie the act of ommision or
absence of requisite care, in absence of any mala
fide or malicious action, no direction is
necessary to be issued qua Respondent No.2 for
any recovery in the present proceedings.
50. Admittedly, the respondent No.2 has been
made to retire in public interest by the Governor
of the State long ago in exercise of powers
conferred upon it on recommendations (Under Rule-
21) of the High Court under the Gujarat State
Judicial Services Rules, 2005. Rule 24 of the
Gujarat Pension Rules also would not permit the
initiation of any departmental proceedings due to
long lapse of time. The only course open
therefore would be to initiate civil action
against the respondent No.2 and No.3 to seek
recovery.
51. However, it shall be the discretion of
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respondent No.1 and respondent No.5 to initiate
any civil action if deemed necessary on following
due procedure.
52. With the above directions, this petition
being Special Criminal Application No. 5153 of
2015 is DISPOSED OF in such terms.
53. Accordingly, Criminal Misc. Application
No. 15197 of 2016 also stands DISPOSED OF
accordingly.
(MS SONIA GOKANI, J.)
UMESH
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R/CR.MA/15197/2016 ORDER
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015
With
CRIMINAL MISC.APPLICATION (DIRECTION) NO. 15197 of 2016
In SPECIAL CRIMINAL APPLICATION NO. 5153 of 2015
[On note for speaking to minutes of order dated 30/03/2017 in
R/CR.MA/15197/2016 ]
==========================================================
RAJENDRAKUMAR PRATAPRAI MEHTA....Applicant(s)
Versus
HIMANSHU JAGDISHBHAI GOSAI & 3....Respondent(s)
==========================================================
Appearance :
MR BHADRISH S RAJU, ADVOCATE for the Petitioners
MR NJ SHAH, ADD. PUBLIC PROSECUTOR for Respondent No.1
MR KANJIBHAI M BHUT, ADVOCATE for the Respondent No.2
MR.DEVENDRA H PANDYA, ADVOCATE for the Respondent No.2
MR CJ VIN, ADVOCATE for the Respondent(s) No.3
MR HEMANG SHAH, STANDING COUNSEL for Respondent Nos.4-5
==========================================================
CORAM HONOURABLE MS JUSTICE SONIA GOKANI
:
Date : 02/05/2017
ORAL ORDER BELOW OFFICE NOTE
1. By way of present Office Note, the Registry has drawn the attention of this Court towards correction in the "Appearance" portion of the CAV Judgment dated March 30, 2017 whereby the appearance of Criminal Miscellaneous Application has been indicated instead of Special Criminal Page 1 of 4 HC-NIC Page 66 of 69 Created On Tue Aug 15 15:35:50 IST 2017 66 of 69 R/CR.MA/15197/2016 ORDER Application as well as correction in paragraph 47 of the said judgment, whereby there is duplication of four lines in the said paragraph, as also the correction is also required to be made in the causetitle of the judgment, whereby it is indicated as "Criminal Miscellaneous Application (Direction) No.15197 of 2016 in Special Criminal Application No.5153 of 2015 with Special Criminal Application No.5153 of 2015"
instead of "Special Criminal Application No.5153 of 2015 with Criminal Miscellaneous Application (Direction) No.15197 of 2016"
2. Having considered the contents of the Office Note, as also the material on record, it transpires that the said correction deserves to be carried out. The appearance be substituted as under :
"MR BHADRISH S RAJU, ADVOCATE for the Petitioners MR NJ SHAH, ADD. PUBLIC PROSECUTOR for Respondent No.1 MR KANJIBHAI M BHUT, ADVOCATE for the Respondent No.2 MR.DEVENDRA H PANDYA, ADVOCATE for the Respondent No.2 Page 2 of 4 HC-NIC Page 67 of 69 Created On Tue Aug 15 15:35:50 IST 2017 67 of 69 R/CR.MA/15197/2016 ORDER MR CJ VIN, ADVOCATE for the Respondent(s) No.3 MR HEMANG SHAH, STANDING COUNSEL for Respondent Nos.4-5"
3. Further, the following words/lines of paragraph 47 in the said judgment be deleted since there is duplication of the very words/lines in the very paragraph :
"period of EIGHT WEEKS from the date of receipt of a copy of this order. The cheque shall be prepared in the name of the petitioner No.1 and shall be handed over by the Nazir of the Court of"
4. It is also brought to the notice that the title of the judgment is also required to be corrected and instead of "Criminal Miscellaneous Application (Direction) No.15197 of 2016 in Special Criminal Application No.5153 of 2015 with Special Criminal Application No.5153 of 2015", it be indicated as "Special Criminal Application No.5153 of 2015 with Criminal Miscellaneous Application (Direction) No.15197 of 2016 in Special Criminal Application No.5153 of 2015". Order accordingly. The Note is disposed of. The judgment dated March 30, 2017, be read Page 3 of 4 HC-NIC Page 68 of 69 Created On Tue Aug 15 15:35:50 IST 2017 68 of 69 R/CR.MA/15197/2016 ORDER accordingly.
(MS SONIA GOKANI, J.) Aakar Page 4 of 4 HC-NIC Page 69 of 69 Created On Tue Aug 15 15:35:50 IST 2017 69 of 69