Full Judgment Text
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CASE NO.:
Appeal (crl.) 1039 of 2006
PETITIONER:
Jasbir Singh
RESPONDENT:
State of Punjab
DATE OF JUDGMENT: 11/10/2006
BENCH:
K.G. BALAKRISHNAN & Dr. AR. LAKSHMANAN
JUDGMENT:
J U D G M E N T
(ARISING OUT OF SLP (CRL.) NO. 3604 OF 2004)
K.G. BALAKRISHNAN, J.
Leave granted.
A case was registered by P.S. Sirhind against seven persons,
including the appellant under Sections 469/467, 468/218-120B of
IPC and also under the provisions of the Prevention of
Corruption Act. The appellant was arrested and remanded to
judicial custody and the final report was filed by the police. It
appears that the appellant moved an application for bail, but the
same was rejected. The appellant moved another bail application
on 24.4.2003 before the Sessions Judge, Fatehpur Sahib, which
was fixed for hearing on 5.5.2003. Meanwhile, on 29.4.2003 the
Administrative Judge of the High Court of Punjab & Haryana
came for annual inspection to the District & Sessions Court,
Fatehpur Sahib, and the Deputy Commissioner, S.S.P. and other
police officers were present. The Hon’ble Judge visited the Jail at
Nabha as part of the inspection programme. The appellant moved
an application for bail during the course of inspection and the
learned Judge noticed the police officers as representative of the
prosecution, and as they had no objection to the granting of bail
to the appellant, the learned Judge passed the following Order:
"The applicant is facing trial for
commission of offences under Sections 409,
447, 468, 218, 120-B IPC and also under
the provisions of Prevention of Corruption
Act. His co-accused similarly situated has
since been enlarged on bail. Applicant is in
jail for the last seven months. Sessions
Judge asked to look into his application and
enlarge him on bail as his trial is likely to
take some time before it is concluded"
(emphasis supplied)
Thereafter, the bail application of the appellant came up for
hearing before the Sessions Judge, Fatehpur Sahib, who, without
making a reference to the directions contained in the order of the
Administrative Judge, dismissed the application. But, on the
next day, i.e. 6.5.2003, when his attention was drawn to the order
of the Administrative Judge, the Sessions Judge granted bail to the
appellant. The appellant also moved an application for the release
of his earth-moving machine, which was seized by the police
during investigations and the same was released to the appellant
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on furnishing a bond in the sum of Rs. 20 lacs.
On 13.6.2003, one Usha Rani made a complaint to the Chief
Justice of the Punjab & Haryana High Court, alleging mala fides
on the part of the Sessions Judge, Fatehpur Saheb, in granting
bail to the appellant. The Chief Justice called for the proceedings
and directed that the entire matter be placed before the very same
Administrative Judge on the judicial side. Thereupon, notice was
issued to the appellant. The de facto complainant also entered
appearance. She reiterated her allegation and sought for
cancellation of bail granted to the appellant. The learned
Administrative Judge held that while passing the order of bail on
6.5.2003, the Sessions Judge had not discussed the matter on
merit and therefore the order dated 6.5.2003 was set aside.
Aggrieved by the same the appellant has preferred the instant
appeal by way of special leave.
When the matter came before this Court on 16.2.2004, the
following Order was passed:-
"Application for exemption from
surrendering is dismissed.
At the request of learned senior counsel
for the petitioner this special leave
petition is adjourned by four weeks.
The above special leave petition has been
adjourned even at the stage of calling for
orders on admission. In the meantime
while going through the order under
challenge, we find that observations have
been made to the effect that there is a
practice of passing orders by an
Administration Judge on the spot at the
time of inspection and the handing over
of petitions for bail etc. at that time.
The Registrar of the Punjab & Haryana
High Court at Chandigarh, by taking
instructions/directions from the Chief
Justice will send a detailed report to this
Registry to be placed when the matter is
taken up as to for how long this type of
practice, if any, has been followed in the
State and as to whether there is any
sanction for the same under any law; or
administrative orders by the Hon’ble
Chief Justice of the Court at any time.
Copies of such orders, if any, in the
matter shall be enclosed to the report."
The report received from the Chief Justice of Punjab &
Haryana, indicates that there has been a constant practice of the
Inspecting/Administrative Judges receiving applications from
inmates of jail, for grant of bail, and while in some cases the
Inspecting Judge by himself would pass the order, in other cases
he would direct the Sessions Judges to grant bail or direct the
application to be dealt with in accordance with law. The Chief
Justice has furnished the details of the various orders where the
Inspecting Judges had granted bail to the inmates of jail during
the course of inspection. Some of the judges gave the opinion to
the Chief Justice that they used to receive bail applications, which
they were marking to the Registry of the High Court for further
action. Some of the Judges asserted that they had never granted
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any bail application in the course of inspection and those
applications were only directed to be placed before the concerned
Sessions Judge.
The Registrar General in his report has made certain
startling revelations to the effect that series of bail orders were
granted by the Judges in the course of inspection, on applications
received from undertrial prisoners. The Chief Justice has
emphatically denied having given any jurisdiction to any of the
Judges to hear and pass orders on bail applications during
inspection. It seems that the stand taken by some of the Judges is
that the Judges of the High Court are vested with the power of
superintendence and control over all courts and tribunals
subordinate to the High Court under Article 227, and as part of
such Constitutional power, the Inspecting Judges have the right
and duty to consider the bail applications during inspection.
The learned counsel appearing on behalf of the Bar Council
of the State of Haryana submitted that in many cases the bail
applications are not considered by the Sessions Judges in time and
the accused have to remain in jail for unnecessarily long periods
and that in such cases it is the duty of the Inspecting Judges to
receive bail applications and pass appropriate directions.
What is the width and amplitude of the power of
superintendence over subordinate courts and whether it
authorizes the Inspecting Judges to transact any judicial work,
which is in the domain of the subordinate courts, is the question
that arises for consideration in this appeal.
The power of superintendence over all the subordinate
courts and tribunals is given to the High Court under Article 227
of the Constitution. So also, under Article 235 of the
Constitution, the High Courts exercise control over all the district
courts and courts subordinate thereto on all matters relating to
posting, promotion and grant of leave to officers belonging to the
judicial service of the State. The power of superintendence
conferred on the High Court under Article 227 over all the courts
and tribunals throughout the territory of the State is both of
administrative and judicial nature and it could be exercised suo
motu also. However, such power of superintendence does not
imply that the High Courts can influence the subordinate
judiciary to pass any order or judgment in a particular manner.
The extraordinary power under Article 227 can only be used by the
High Courts to ensure that the subordinate courts function within
the limits of their authority. The High Court cannot interfere with
the judicial functions of a subordinate Judge. Speaking on the
power of superintendence of the High Court under Article 227 in
Waryam Singh vs. Amarnath (AIR 1954 SC 215), at page 217,
Justice S.R. Das observed :-
"The material part of Article 227 substantially
reproduces the provisions of Section 107 of
the Government of India Act, 1915 except that
the power of superintendence has been
extended by the Article also to Tribunals\005\005..
Further, the preponderance of judicial opinion
in India was that Section 107 which was
similar in terms to Section 15 of the High
Courts Act, 1861, gave a power of judicial
superintendence to the High Court apart from
and independently of the provisions of other
laws conferring revisional jurisdiction on the
High Court.
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In this connection it has to be remembered
that Section 107 of the Government of India
Act, 1915 was reproduced in the Government
of India Act, 1935 as Section 224. Section 224
of the 1935 Act, however, introduced sub-
section (2), which was new, providing that
nothing in the section should be construed as
giving the High Court any jurisdiction to
question any judgment of any inferior court
which was not otherwise subject to appeal or
revision. The idea presumably was to nullify
the effect of the decisions of the different High
Courts referred to above. Section 224 of the
1935 Act has been reproduced with certain
modifications in Article 227 of the
Constitution. It is significant to note that sub-
section (2) to Section 224 of the 1935 Act has
been omitted from Article 227.
This significant omission has been regarded by
all High Courts in India before whom this
question has arisen as having restored to the
High Court the power of judicial
superintendence it had under Section 15 of the
High Courts Act, 1861 and Section 107 of the
Government of India Act, 1915\005\005..
This power of superintendence conferred by
Article 227 is, as pointed out by Harries, C.J.,
in \026 Dalmia Jain Airways Ltd. Vs. Sukumar
Mukherjee, AIR 1951 Cal 193 (SB (B), to be
exercised most sparingly and only in
appropriate cases in order to keep the
Subordinate Courts within the bounds of their
authority and not for correcting mere errors".
This view expressed was later followed by this Court in
Timbak Vs. Ram Chandra AIR 1977 SC 1222, by Justice
Jaswant Singh, at page 1225 :-
"It is also well established that it is only when
an order of the Tribunal is violative of the
fundamental basic principles of justice and
fair play or a patent or flagrant error in the
procedure of law has crept or where the order
passed results in manifest injustice, that a
court can justifiably intervene under Article
227 of the Constitution."
In Mohd. Yunus Vs. Mohd. Mustaqim AIR 1984 SC 38,
this Court held :-
"The supervisory jurisdiction conferred on the
High Court’s under Article 227 of the
Constitution is limited "to seeing that an
inferior Court or Tribunal functions within
the limits of its authority," and not to correct
an error apparent on the face of the record,
much less an error of law\005.. In exercising its
supervisory powers under Article 227, the
High Court does not act as an appellate court
or Tribunal. It will not review or reweigh the
evidence upon which the inferior court or
tribunal purports to be based or to correct
any errors of law in the decision."
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This Court also made almost similar observations in State
Vs. Navjot Sandhu (2003) 6 SCC 641.
So, even while invoking the provisions of Article 227 of the
Constitution, it is provided that the High Court would exercise
such powers most sparingly and only in appropriate cases in order
to keep the subordinate courts within the bounds of their
authority. The power of superintendence exercised over the
subordinate courts and tribunals does not imply that the High
Court can intervene in the judicial functions of the lower judiciary.
The independence of the subordinate courts in the discharge of
their judicial functions is of paramount importance, just as the
independence of the superior courts in the discharge of their
judicial functions. It is the members of the subordinate judiciary
who directly interact with the parties in the course of proceedings
of the case and therefore, it is no less important that their
independence should be protected effectively to the satisfaction of
the litigants. The independence of the judiciary has been
considered as a part of the basic structure of the Constitution
and such independence is postulated not only from the Executive,
but also from all other sources of pressure. In S.P. Gupta Vs.
Union of India 1981 (Supp.) SCC 87, speaking on the
independence of the judiciary, a Bench of seven Judges observed
as under at page 221-222 :-
"The concept of independence of
judiciary is a noble concept which
inspires the constitutional scheme and
constitutes the foundation on which
rests the edifice of our democratic
polity\005.. But it is necessary to remind
ourselves that the concept of
independence of judiciary is not limited
only to independence from executive
pressure or influence but it is a much
wider concept which takes within its
sweep independence from many other
pressures and prejudices. It has many
dimensions, namely, fearlessness of
other power centres, economic or
political, and freedom from prejudices
acquired and nourished by the class to
which the Judges belong."
The counsel appearing for the respondent submitted that
the power of superintendence and control over the subordinate
courts is conferred on the High Court under Article 235 of the
Constitution and therefore the Inspecting Judge was fully justified
under certain circumstances to entertain the bail petitions or
transfer applications and direct the District Judges or other courts
to pass appropriate orders. We find no force in this contention.
This plea has been raised without any basis. Article 235 of the
Constitution gives power to the High Court to exercise control over
the subordinate courts. This power has been specifically described
in Article 235 in a comprehensive sense so as to include the
powers of general superintendence over the working of the
subordinate courts; disciplinary control over the Presiding Judges
of the subordinate courts which includes power to make inquiry;
and impose punishments other than dismissal, removal or
reduction in rank subject, of course, to the rules of services and
Article 311(2) of the Constitution. This power also would include
the power to order disciplinary inquiry, transfers, promotions of
members of subordinate judiciary and confirmation of officers etc.
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It also includes the power to recall officers of the subordinate
courts holding ex cadre posts or to send officers on deputation to
other administrative posts or award selection grade or pass orders
on any such matters connected with service. The powers of control
to be exercised under Article 235 of the Constitution do not extend
to interfering with the judicial functions of the subordinate courts.
By virtue of the power under Article 235 the High Court cannot
direct the presiding officer to pass a judicial order in a particular
manner as that would certainly amount to interfering with the
independence of the subordinate judiciary.
In the course of inspection, the High Court Judge is
required to examine whether the courts are functioning within the
norms laid down by the High Court. Mostly the inspection is to be
confined to the administrative functioning of the courts and its
officers. If any member of the administrative staff is not doing the
work assigned to him or is causing any delay in the process of
administration of justice, the Inspecting Judge can give proper
direction and see that the courts function smoothly. But under no
circumstances, the Inspecting Judge, as part of his administrative
duty enjoys the power to interfere with the judicial functions of the
subordinate courts in individual cases. In the course of
inspection, a High Court Judge cannot pass any order on interim
applications, such as bail petitions or transfer applications or
applications for interim injunction, howsoever justified they may
be. Orders on bail applications are passed under the provisions of
the Code of Criminal Procedure or under various other
enactments, which provide for grant of bail and such orders are
passed as part of the judicial work. The Inspecting Judge is not
supposed to pass any judicial order in individual cases in the
course of inspection. Of course, he can give administrative
directions to the Presiding Officer or to any of the subordinate
staff, if such directions are pertinent in the context of
administration of justice. Except giving general directions
regarding any matter concerning administration of justice, any
interference in the judicial functions of the Presiding Officer would
amount to interference with the independence of the subordinate
judiciary.
So also, while on inspection, the Inspecting Judge is not
supposed to perform any judicial work.
A question of a similar nature came before this Court in
Alok Kumar Vs. Dr. S.N. Sarma AIR1968 SC 453. That was a
case where the Judge of the High Court of Guwahati was
nominated as the Vacation Judge and certain dates were fixed on
which he was to sit and hear urgent civil and criminal
applications. One of these dates was October 31, 1966 and
another was November 10, 1966. It was also stated in the order
that if there was any matter which was extremely urgent, it would
be heard on any other day by appointment through the Registrar.
This Judge was also working as a Commission of Enquiry during
that period. For that purpose, he had to go out of Gauhati, (the
seat of the High Court) to Sibsagar after the vacation sitting on
October 31, 1966. Therefore, on November 2, 1966 he was not
available at Gauhati, even though he was the Vacation Judge.
Petitioner filed a writ petition seeking permission to write an
examination which was to be held on November 4, 1966. The
petitioner gave notice to the Government Advocate and thereafter
went to Sibsagar where the Judge was holding the Commission of
Enquiry and presented his petition. The writ petition was
entertained and the learned Judge passed an interim order
permitting the petitioner to write the examination. This order was
challenged later and this Court held that by virtue of appointment
as a head of Commission, the Judge does not demit his office and
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while holding a Commission of Enquiry at Sibsagar if he received
the petition and passed an order, all that can be said is that the
petition was irregularly presented at Sibsagar when it should have
been presented at Gauhati.
Therefore, even if any application for bail is received by the
Inspecting Judge, the proper course is to send the application to
the concerned court to pass appropriate orders. When the
Inspecting Judge visits the jail, it is quite likely that so many
inmates of the jail may file petitions before the concerned Judge.
It is the duty of the Judge to see whether there is any merit in any
of these petitions. If any application for bail is received, he can
very well send it to the concerned court without making any
comments on the merits of the case. On the contrary, if the
learned Inspecting Judge passes any order in such matter, he
would only be usurping the powers of the courts authorized to
pass such orders. It may also be remembered that normally a
High Court Judge passes orders on matters assigned by the Chief
Justice and this Court in State of Rajasthan Vs. Prakash Chand
& Ors, AIR 1998 SC 1344 deprecated the practice of the Single
Judge directing the listing of certain part-heard cases before him
without there being any orders of Hon’ble the Chief Justice of the
High Court. It is the prerogative of the Chief Jusitce to assign
business of the High Court both on judicial and administrative
sides. The Chief Justice alone has the power to decide as to how
the Benches of the High Court are to be constituted. That
necessarily means that it is not within the competence of any
Single or Division Bench of the High Court to give any direction to
the Registry in that behalf which will run contrary to the directions
of the Chief Justice. Therefore, in the scheme of things, judicial
discipline demands that in the event a single Judge or a Division
Bench considers that a particular case requires to be listed before
it for valid reasons, it should direct the Registry to obtain
appropriate orders from the Chief Justice.
The Inspecting Judges would be at liberty to receive
complaints or petitions in the course of inspection so as to bring
the same to the notice of the appropriate court or to the Registry of
the High Court, so that it may, in turn, be brought to the notice
of the Chief Justice who may place it before an appropriate forum
for passing orders.
In the instant case, as the accused has already been
released on bail, we need not pass any order. With the above
observations, the appeal is disposed of.