Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 8
PETITIONER:
STATE OF MAHARASHTRA
Vs.
RESPONDENT:
DR. BUDHIKOTA SUBHARAO
DATE OF JUDGMENT16/03/1993
BENCH:
SAHAI, R.M. (J)
BENCH:
SAHAI, R.M. (J)
PANDIAN, S.R. (J)
CITATION:
1993 SCR (2) 329 1993 SCC (2) 567
JT 1993 (3) 389 1993 SCALE (2)44
ACT:
Code of Criminal Procedure 1973:
Section 482. Court proceedings--Mala fides--May be legal or
factual--Procuring order on incorrect
facts--Reprehensible--Practice and procedure.
High Court--Judge may have unchallenged and unfettered power
to direct office to list case before him--Judicial
discipline restricts excercise of this power.
Judgments--Structures of ’sharp practices’ suppression of
facts, obtaining orders by playing fraud--Use of.
HEADNOTE:
The respondent, an ex-Naval Officer and Computer Science
Graduate was accused of leaking Atomic Energy Secrets-and
violating the provisions of the Atomic Energy Act, 1962. He
riled an application for quashing the charge sheet framed
under the Official Secrets Act, 1923 and the Atomic Energy
Act, 1962 and for release of his passport before the
Division Bench of the High Court which passed an order on
13.2.1991 that it may be presented before the trial Judge.
On the very next day the Additional Sessions Judge after
hearing the parties directed that the passport and identity
card of the respondent be returned, and he permitted the
respondent to leave India and travel abroad as per his
itinerary during the period from 17.2.1991 to 22.2.1991 on
executing a personal bond of Rs.50,000.
The appellant State was disturbed by this order as serious
charges had been levelled against the respondent who had
been arrested, earlier, just when he was about to leave the
country and board the plane, for leakage of official secrets
and whose bail had even, been cancelled by this Court;
appeared to be in danger of leaving the country again.
Since the order was passed on 14.2.91 and the respondent was
to fly
301
on 17.2.91 and 16.2.91 was a Saturday, the State Challenged
the correctness of the order passed by the Additional
Sessions Judge by way of a writ petition under Article 227
of the Constitution read with section 482 of Criminal
Procedure Code and a Single Judge, who under the rules was
entitled to bear such a petition, passed an ex-parte order
on 15.2.91 staying that part of the order which permitted
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 8
the respondent to leave the country and directed the
application to be listed for further orders on 18.2.91.
The Respondent on coming to know of this order, in the
evening, approached the Division Bench of the High Court
where the-main petition was pending on 16.2.1991, which
after making an observation that the Public prosecutor ought
to have brought it to the notice of the Sin& Judge that the
main matter was pending before the Division Bench and the
trial Judge had passed the order in pursuance of the
direction issued by the Division Bench, directed that the
matter, being urgent, it should be placed before the same
single Judge.
Consequent thereto the parties appeared before the Judge on
16.2.1991 who after hearing them confirmed the interim
order.
When the revision petition filed by the State directed
against the order acquitting the respondent accused, was
taken up for hearing and observations were made, during
course of judgment dictated in open court from 5th to 12th
October, 1991 against the public prosecutor and the State,
the respondent appears to have made a mention on 10th
October that the writ petition filed by the State against
the order of the trial judge releasing his passport and
permitting him to travel abroad may be summoned and disposed
of. This request was accepted and on direction of the Judge
the office listed the case before him on 11th October, and
when the petition was taken up, on 11th October, and the
public prosecutor was asked if she had any objection to
hearing it was stated by her that it did not survive.
The Judge after completion of judgment in criminal revision
on 12th October, took up the writ petition. The Single
Judge passed the order which is the subject matter of the
appeal and directed the payment of Rs.25,000 compensation
for consultancy loss, suffered by the respondent due to the
ex-parte order obtained by the State against the order of
the trial judge permitting the respondent to go abroad.
302
The State appealed to this Court questioning the validity of
the order of the Single Judge dated 28.10.91.
Allowing the State’s appeal and the intervention application
of the Public prosecutor and setting aside the order dated
28.10.91 passed in the Civil Miscellaneous Writ Petition and
dismissing the same as infurctuous this Court.
HELD : 1. Disclosing correct facts and then obtaining order
in favour is not same as procuring an order on incorrect
facts. Former is legitimate being part of advocacy latter
is reprehensible and against profession. [307D]
2. Mala fides violating the proceedings may be legal of
factual. Former arises as a matter of law where a public
functionary acts deliberately in defiance of law without any
malicious intention or improper motive whereas the latter is
actuated by extraneous considerations. But neither can be
assumed or readily inferred. It requires strong evidence
and unimpeachable proof. [308C]
In the instant case, neither the order passed by the Single
Judge granting ex-parte order of stay preventing opposite
party from going abroad was against provisions of law nor
was the State guilty of acting mala fides in approaching the
Single Judge by way or writ petition. The order of the
trial Judge could not be challenged before the Division
Bench, under the rules of the court, the correctness of, the
order could be assailed only in the manner it was done by
the State. [308D]
3. Any party aggrieved by an order is entitled to challenge
it in a court of law. Such action is neither express malice
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 8
nor malice in law. [308E]
4. Sharp practice is not a court language. It is sorry to
say so. Facts did not justify it. Legal propriety does not
countenance use of such expressions favourably. The Judge
in the instant case, used very harsh language without there
being any occasion for it. [309C]
5. A State counsel with all the aura of office suffers dual
handicap of being looked upon by the other side as the
necessary devil and the courts too at times, rind it easier
to frown upon him. The moral responsibility of a state
counsel, to place the facts correctly, honestly and fairly
before the court, having access to State records, coupled
with his duty to
303
secure an order in favour of his client requires him to
discharge his duty responsibly and sensibly. Even so if a
State lawyer who owes a special duty and is charge with
higher standard of conduct in his zeal or due to pressure,
not uncommon in the present day, adopts a partisan approach
that by itself is not sufficient to warrant a finding of
unfairness or resorting to sharp practice. [309D-E]
6.The public prosecutor may have exhibited more zeal. But
that could not be characterised as unfair. May be it would
have been proper and probably better to inform the Single
Judge about the earlier order passed by the Division Bench.
But assuming the public prosecutor did not inform and
remained content with its disclosure in the body of the
petition she could not be held to have acted dishonestly.
[309F]
7.A Judge of the High Court may have unchallenged and
unfettered power to direct the office to list a case before
him. But that by itself restricts the exercise of power and
calls for strict judicial discipline. If the Judge in the
instant case, would have avoided sending for and deciding
the petition, which as pointed out by the senior counsel for
the State had become infructuous, it would have been more in
keeping with judicial culture. [309H, 310A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.275 of
1993.
From the Judgment and Order dated 14.10.1991 of the Bombay
High Court in Crl. W.P. No. 180 of 1991.
Altaf Ahmed, Addl. Solicitor General, B.R. Handa, Mrs.
Manjula
Rao, S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar for the
Appellant.
Dr. B. Subha Rao Respondent-in-person.
V.M. Tarkunde, A.M. Khanwilkar and A.K. Panda for the
Intervenor.
The Judgment of the Court was delivered by
R.M.SAHAI, J. Strictures of ’sharp practice’, suppression of
facts, obtaining orders by playing fraud upon the court
against State by Mr. Justice Saldanha a of the Bombay
High Court, while deciding Criminal
304
Miscellaneous Petition filed by the opposite party, accused
of leaking official secrets and violating provisions of the
Atomic Energy Act, 1962 and awarding Rs.25,000 as
compensation, for consultancy loss, suffered by him, due to
ex-parte order obtained by the State against order of the
trial Judge permitting the opposite party to go abroad,
compelled the State to file this appeal and assail the order
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 8
not only for legal infirmities but factual inaccuracies.
Reasons to quote the teamed Judge which, ’compelled the con-
secience of court to pass’ the impugned order were, ’the
unfortunate proceedings that bristled (s) with mala fides’.
Basis for these inferences was, the conclusion by the
learned Judge, that the State, deliberately, procured the
interim order by another learned Judge by filing a separate
writ petition, when it knew that the main petition for
quashing of the proceedings was pending before the division
bench (Puranik & Saldanha, JJ.). The learned Judge felt,
strongly, against the public prosecutor as she being aware
of the proceedings before the Division Bench failed in her
duty of apprising the learned Judge of correct facts.
Was this so? Did the State procure the order by concealing
facts? Was the public prosecutor guilty of violating
professional ethics or her duty as respondent officer of the
court? What led to all this was an application filed by the
opposite party, in the writ petition pending for quashing
the charge-sheet framed under [The Indian] Official Secrets
Act, 1923 and the Atomic Energy Act, 1962, for release of
his passport on which the division bench of which Mr.
Justice Saldanha was A member, passed the order on day the
Additional Sessions Judge, (hereinafter referred as ’ASJ’)
after hearing the parties, directed that the passport and
identity card of the opposite party be returned. He,
further, permitted the opposite party to leave India and
travel abroad as per the itinerary during the period from
17.2.91 to 22.2.91 on executing a personal bond of
Rs.50,000. The State was, obviously, disturbed by this order
as serious charges had been levelled against the opposite
party who had been arrested, earlier, just when he was about
to leave the country and board the plane, for leakage of
official secrets and whose bail had, even, been cancelled by
this court, appeared to be in danger of leaving the country
again. Since the order was passed on 14.2.91 and the
opposite party was to fly on 17.2.91 and 16.2.91 was
Staturday the State challenged the correctness of the order
passed by the
305
ASJ by way of a writ petition under Article 227 of the
Constitution read with Section 482 of Criminal Procedure
Code and the learned Judge, who under the rules was entitled
to hear such a petition, passed an ex-parte order on 15.2.91
staying that part of the order which permitted the opposite
party to leave the country and directed the application to
be listed for further orders on 18.2.91. On coming to know
of this order, in the evening, the opposite party approached
the Division Bench where the main petition was pending on
16th February, which after making an observation that the
public prosecutor ought to have brought it to the notice of
the learned single Judge that the main matter was pending
before the Division Bench and the trial Judge had passed the
order in pursuance of the direction issued by the Division
Bench,--directed that the matter, being urgent, it should be
placed before the same learned single Judge. Consequently
parties appeared before the learned Judge on 16th February
who, after hearing, confirmed the interim order passed, a
day earlier.
With confirmation of interim order the proceedings which had
commenced on the application filed by the opposite party to
leave the country came to an end. But the writ petition in
which the interim order was passed remained pending. And
when the revision filed by the State, directed against the
order acquitting the accused, was taken up for hearing by
Mr. Justice Saldanha, and observations were made during
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 8
course of judgment dictated in open court from 5th to 12th
October 1991 against the public prosecutor and the State,
the opposite party appears to have made a mention on 10th
October that the writ petition filed by the State against
the order of the trial Judge releasing his passport and
permitting him to travel abroad may be summoned and disposed
of. The request was accepted and on direction of the
learned Judge the office listed the case before him on 11th
October. When the petition was taken up, on 11th October,
and the public prosecutor was asked if she had any objection
to hearing it was stated by her that it did not survive.
But the learned Judge after completion of judgment in
criminal revision on 12th October, appears to have, taken up
the writ petition. It was pointed out by the learned senior
counsel for the State that since the criminal revision filed
by the State against the order acquitting the accused has
been dimissed, the writ petition had become infructuous and
orders may be passed accordingly.
Yet the learned Judge passed the impugned order. What
weighed with the learned Judge to infer mala fides against
the State was that the
306
order dated 14.2.91 having been passed in open court in
presence of the opposite party and counsel for the State,
permitting the opposite party to leave the country on
17.2.91, the opposite party, genuinely expected the
according to the learned Judge, rightly, that any further
application which the State would make could only be
addressed to the bench, namely, the bench of Puranik &
Saldanha, JJ., before whom the petition was pending,
therefore, the opposite party, justifiably, waited and
watched in the bench, whole day for moving of any
application but the State instead of moving any such
application filed a fresh writ petition and obtained an ex-
parte order, the information of which was given to opposite
party in the evening. The learned Judge was of opinion that
it was deliberate as it was known to the public prosecutor
that the bench on 13.2.91 after scrutinising the papers was
of opinion that it was a genuine case in which the passport
should be released and the opposite party should be
permitted to travel abroad but due to paucity of time the
bench instead of passing the order directed the opposite
party to approach the trial Judge. The learned Judge
further held that even though the public prosecutor and the
Inspector of Police knew these facts and that the opposite
party was to fly on 17.2.91 yet the notice was obtained from
the learned Judge returnable on 18.2.91 by which time the
delegation from Reliance Industries of which the accuse was
to be a member was to have left the country. Since the
effect of the interim order and the fixing of the petition
on 18.2.91 nullified the opposite party’s going to United
States of America, the court felt that the order was
obtained not only unfairly, but that it constituted a sharp
practice. The motive of the public prosecutor and the State
was further attempted to be shown to be dishonest and
motivated as the averments in the petition on which the
interim order was obtained were false to their knowledge.
The falsity found was that the State had deliberately tried
to mislead the court by alleging that the trial was fixed
for hearing on 18.2.91 and the same had been adjourned to
24.2.91. The court found that the learned single Judge was
misled in passing the order as was clear from ground number
six which was to the effect that the trial being fixed for
18.2.91 the trial Judge was not justified in issuing the
orders in favour of opposite party. The learned Judge also
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 8
felt aggrieved by the conduct of the public prosecutor in
not informing the learned single Judge that the main writ
petition was already listed for hearing before the division
bench and that the direction to the ASJ to consider the
application for return of passport had been issued by the
bench. The learned single Judge was not satisfied with
explanation of the State that a petition under Article 227
of the Constitution read with
307
Section 482 of Criminal Procedure Code being maintainable
before the learned single Judge under the High Court rules
it had no option but to proceed in accordance with law. The
learned single Judge pointed out that if the State would
have pointed out to the Registry the correct facts then the
case could not have been listed before the learned single
Judge.
That any party aggrieved by an order passed by a Court is
entitled to approach the higher court cannot be disputed nor
can it be disputed that a petition under Article 227 of the
Constitution read with Section 482 of the Criminal Procedure
Code against the order of trial Judge was maintainable and
under rules of the court it could be listed before the
learned single Judge only. The State, therefore, in filing
the petition against the order of the sessions Judge did not
commit any illegality or any impropriety. A copy of the
writ petition, has been annexed to this special leave
petition which, does not show any disclosure of incorrect
facts or any attempt to mislead the court. Even the learned
single Judge did not find that the trial was not fixed for
18.2.91. Disclosing correct facts and then obtaining order
in favour is not same as procurring an order on incorrect
facts. Former is legitimate being part of advocacy latter
is reprehensible and against profession. But if the State
persuaded the court to stay the operation of the order
passed by the trial Judge while mentioning the details about
the pendency-of the earlier petition before the division
bench and issuing of directions to the sessions Judge to
decide the application for release of passport etc. it is
difficult to imagine how any inference of obtaining order on
incorrect facts could be drawn. During arguments the
opposite party attempted to highlight averments in paragraph
six of the writ petition to the effect that the Division
Bench had dismissed the application of the opposite party
when no such order was passed. The sentence, in fact, reads
as under:
The application was dismissed and directed the respondent to
move trial court and further directed the trial court to
consider the same in accordance with law.
True, the application was not dismissed. But the sentence
had to be read in its entirety. No court could be misled
from the use of the word dismissed as the directions issued
by the court were mentioned correctly. The inference drawn
by court and the finding recorded by it of obtaining the
order by ’suppression of facts and making positively, false
statements’ is
308
factually incorrect and legally unsound. The grief of the
opposite party in missing an opportunity of going to the
United States and the grievance against functionaries of the
State, namely, public prosecutor and prosecuting Inspector
can be appreciated. We can, also, visualise the vehemence
and eloquence of the opposite party, of which he is capable
of, as appeared from his submission when he appeared in
person in this court, but what has baffled us that the
learned Judge was persuaded to record the finding of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 8
suppression of facts on such weak and insufficient material.
Mala-fides violating the proceedings may be legal or
factual. Former arises as a matter of law where a public
functionary acts deliberately in defiance of law without any
malicious intention or improper motive whereas the latter is
actuated by extraneous considerations. But neither can be
assumed or readily inferred. It requires strong evidence
and unimpeachable proof Neither the order passed by the
learned single Judge granting ex-parte order of stay
preventing opposite party from going abroad was against
provisions of law nor was the State guilty of acting mala
fides in approaching the learned single Judge by way of writ
petition. The order of the trial Judge could not be
challenged before the Devision Bench. Under the rules of
the court, the correctness of, the order could be assailed
only in the manner it was done by the State. Any party
aggrieved by an order is entitled to challenge it in a court
of law. Such action is neither express malice nor malice in
law.
The opposite party was charged with very serious offence.
He was arrested when he was about to leave the country. The
State was possessed of material that he had, even, applied
for matrimonial alliance in response to an advertisement
issued from New York. The order of the trial Judge,
therefore, permitting opposite party to leave the country
without trial must have created a flutter in the department.
It was by all standard a sensational and a sensitive case.
The public prosecutor and the prosecuting Inspector who were
entrusted with responsibility to prosecute the opposite
party must have felt worked up by the order permitting the
opposite party to leave the country. Decision must have
been taken to prevent the opposite party by approaching the
High Court by way of a writ petition instead of approaching
the Division Bench. Assuming that the State took recourse
to this method, as it might have been apprehensive that it
would not get any order from the division bench, the State
could not be accused of mala-fides so long it proceeded in
accordance with law. Apart from that once it was
309
brought to the notice of the division bench that the State
had procured on ex-parte order from the learned Judge who
was requested by the division bench to treat the matter
urgent and hear parties and the application was heard on
16th February and the learned Judge refused to vacate the
interim order and confirmed it the entire basis of mala-fide
stood demolised. The learned Judge was not justified in
blaming the State for getting the notice returnable on 18th
February. That was order of the court. In any case the
opposite party having appeared on 16th yet the learned Judge
having refused to modify his order it was too much to hold
the State or public prosecutor responsible for it.
Sharp practice is not a court language. We are sorry to say
so. Facts did not justify it. Legal propriety does not
countenance use of such expression favourably. The learned
Judge, to our discomfort, used very harsh language without
there being any occasion for it. A State counsel with all
the aura of office suffers dual handicap of being looked
upon by the other side as the necessary devil and the courts
too at times, find it easier to frown upon him. The moral
responsibility of a State counsel, to place the facts
correctly, honesty and fairly before the court, having
access to State records, coupled with his duty to secure an
order it favour of his client requires him to discharge his
duty responsibly and sensibly. Even so if a State lawyer
who owes a special duty and is charged with higher standard
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 8
of conduct in his zeal or due to pressure, not uncommon in
the present day, adopts a partisan approach that by itself
is not sufficient to warrant a finding of unfairaness or
resorting to sharp practice. In this case too not more than
this appears to have happened. May be the public prosecutor
may have exhibited more zeal. But that could not be
characterised as unfair. May be it would have been proper
and probably better to inform the learned single Judge about
the earlier order passed by the division bench. But
assuming the public prosecutor did not inform and remained
content with its disclosure in the body of the petition she
could not be held to have acted dishonestly.
We ’are constrained to observe our unhappiness on the manner
in which the writ petition was summoned by Mr. Justice
Saldanha from the office, heard and decided. As stated
earlier the writ petition was directed by the leaned Judge
to be listed before him, on a mention made by the opposite
party in course of dictation of judgment in criminal
revision wherein he had made observations against the public
prosecutor. A Judge
310
of the High Court may have unchallenged and unfettered power
to direct the office to list a case before him. But that by
itself restricts the exercise of power and calls for strict
judicial discipline. We do not intend to make any comment
but we are of opinion that if the learned Judge would have
avoided sending for and deciding the petition, which as
pointed out by the learned senior counsel for the State had
become infructuous, it would have been more in keeping with
judicial culture.
For reasons stated above by us this appeal succeeds and is
allowed. The order dated 28-10-91 passed in civil
miscellaneous writ petition is set aside. It shall stand
dismissed as infructuous. The Intervention Application
No.943 of 1992 of the Public Prosecutor is allowed. We make
it clear that all the observations and remarks made by the
learned Judge against the State and Public Prosecutor shall
stand expugned.
N.V.K.
Appeal allowed.
311