Full Judgment Text
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CASE NO.:
Appeal (civil) 2015 of 2006
PETITIONER:
Ramesh Chander Singh
RESPONDENT:
High Court of Allahabad & Anr
DATE OF JUDGMENT: 26/02/2007
BENCH:
CJI K.G. BALAKRISHNAN,LOKESHWAR SINGH PANTA & D.K. JAIN
JUDGMENT:
J U D G M E N T
K.G. BALARISHNAN, CJI
The appellant is a judicial officer in the State of Uttar
Pradesh. He joined the Provincial Civil Service (Judicial) in the
year 1976 and in May 1994 he was promoted to the Higher
Judicial Service and posted as Addl. District & Sessions Judge
at Jhansi. A crime No. 180 of 1995 registered by the Police
Station at Nawabad was committed to the Sessions Court at
Jhansi and allotted to the appellant’s court for trial and
disposal. There were three accused in that case, namely, Ram
Pal, Raghunath and Rajendra. The crime related to an
incident which happened on 22.5.1995. The allegation in the
First Information Report was that accused Ram Pal and
Raghunath used fire-arms and shot dead Pratap Yadubir
Singh and Devendra Pipraiya within the compound of District
Panchayat Bhawan at Jhansi. The Police registered the case
for the offences punishable under Sections 302, 307 read with
Section 34 IPC. Accused Rajendra was granted bail on
19.8.1995. The second accused, Raghunath, who allegedly
used the fire-arm and killed one of the victims, was also
granted bail on 20.9.1995 by the High Court. Accused Ram
Pal continued to be in custody and moved his first bail
application on 17.11.1995 which was dismissed by the
Sessions Judge, Jhansi. On 11.4.1996, accused Ram Pal
moved another bail application and the same was dismissed
for default. In the third application, which came up for
consideration before the second Addl. Sessions Judge, Jhansi,
accused Ram Pal contended that he had no criminal history
and that the Executive Magistrate (Tehsildar) who recorded the
dying declaration used to reside in the house of the deceased
Pratap Yadubir and because of his acquaintance with the
deceased, the dying declaration recorded by him was not to be
given much credence. Accused Ram Pal further contended
that he was a local resident and there was no likelihood of he
being absconding. The Sessions Judge dismissed the bail
application on 15.5.1996. In the fourth bail application,
moved by accused Ram Pal on 19.6.1996, he contended that
he was a student; he had surrendered before the Chief
Judicial Magistrate, Jhansi, on 8.6.1995; had been in custody
for more than one year and that his co-accused had been
released on bail. He pleaded that his father was seriously ill
and in support of this contention, he produced a medical
certificate from a Professor of Medical College at Jhansi to
show that his father had suffered a heart-attack on 16.5.1996.
By an order passed on 22.6.1996, the appellant herein granted
bail to accused Ram Pal. The main reasons attributed by the
appellant for granting bail to accused Ram Pal were that the
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charge sheet had been filed by the police; the accused had
stated that his father was dangerously ill; the accused was a
student; and that the accused had no previous conviction or
involvement in any criminal case. The appellant also observed
in the bail order that the Tehsildar who recorded the dying
declaration was a close acquaintance of the deceased.
Considering the totality of the circumstances and as there was
no likelihood of the accused absconding or interfering with the
trial of the case influencing the witnesses or committing any
fresh offence, the bail application was allowed by the
appellant.
It may also be noticed that when the bail application of
the accused came up on 22.6.1996, the appellant noticed that
the brother of the defacto complainant had filed an application
before the Sessions Judge for the transfer of the bail
application to some other court. It appears that the hearing
of bail petition was adjourned in the morning of 22.6.1996 for
want of a specific report from the Addl. District Govt. Counsel
(ADGC) and later, on the same day, it was taken up when the
ADGC stated that he had full faith in the court and the
counsel, who was engaged by the complainant, did not raise
any objection and was prepared to argue the bail application.
No stay order was produced before the appellant and
therefore, the appellant proceeded with the hearing of the case
and passed the order on the very same day granting bail to
accused Ram Pal on his furnishing a bond for Rs.20,000/-
with two sureties.
On 10.7.1996, complainant Jagdeo Singh sent a
complaint to the High Court alleging that the appellant had
accepted illegal gratification for granting bail to accused Ram
Pal. This complaint was placed before the Inspecting Judge
and after going through the material on record the learned
Inspecting Judge was of the view that there was a prima facie
case against the officer concerned, for dereliction of duty and
judicial dishonesty while granting bail. The Administrative
Committee initiated departmental enquiry against the
appellant. It may further be noticed that in the complaint filed
by Jagdeo Singh, he alleged that it was being said in the
village that a sum of Rs.80,000/- had been paid to the
appellant and bail would be granted by him and that nobody
could stop it. He had also mentioned about the transfer
application filed by him before the Distt. Judge and alleged
that despite the filing of the said transfer application, the bail
application was heard and allowed. He prayed for the transfer
of the case to some other court.
In the transfer application filed by the brother of the
complainant, there was an allegation that a sum of
Rs. 80,000/- was paid and that it was settled through a
library clerk with the involvement of two other clerks. In the
transfer application, he also alleged that the brother and
father of accused Ram Pal were found going in and coming out
of the residence of the appellant. Despite all these allegations,
no charge was framed against the appellant that he had
received illegal gratification for granting bail. The charge sheet
contained the only allegation that the bail order was passed by
the appellant for extraneous consideration with oblique
motives on insufficient grounds and that the appellant was
guilty of misconduct and failed to maintain absolute integrity
and devotion to duty within the meaning of Rule 3 of U.P.
Government Servants Conduct Rules, 1956. The charge sheet
as well as the statement of facts are clubbed together and the
gist of allegations is contained in paragraphs 6 and 7 of the
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charge sheet.
A sitting Judge of the High Court conducted the enquiry
and gave his report. Though there was no charge specifically
brought against the appellant that he had received a sum of
Rs.80,000/- as illegal gratification, this aspect also was
considered by the learned Judge. On behalf of the
complainant, PW-1 Jagdeo Singh was examined and he made
a specific allegation that the father of the accused had
withdrawn Rs.80,000/- from the bank and that the bail
application was allowed on the next day. He did not, however,
claim to have any direct knowledge. He deposed that he had
gathered this information from a labourer. He did not take
any steps to summon the bank record. PW-1 was completely
disbelieved by the learned Judge who conducted the inquiry.
The case set up by the complainant was not supported by
other witnesses. The counsel who appeared for the brother
of the deceased and moved the application for transfer, stated
that the brother of the deceased did not tell him that there was
a rumour in the village about payment of Rs.80,000/-. The
Judge who conducted the inquiry elaborately considered the
various aspects of the matter and concluded that there was no
element of truth in the allegation that the appellant had
received illegal gratification. The evidence of PW-1 on this
aspect was disbelieved. However, the learned Judge inquiring
the matter eventually came to the conclusion that the bail had
been granted by the appellant in utter disregard of judicial
norms and on insufficient grounds and based on extraneous
consideration with oblique motive and the charges had been
proved. It is important to note that the Judge who conducted
the enquiry has not stated in his report as to what was the
oblique motive or the extraneous consideration involved in the
matter.
Based on the enquiry report, the appellant was served
with a notice to show cause as to why his two increments
should not be withheld with cumulative effect. The matter
was placed before the Full Court on 20.11.1999 and the Full
Court by its resolution imposed a major punishment of
withholding two annual increments of the appellant with
cumulative effect. The appellant filed a review application
against the said punishment and the same was rejected.
Thereupon, he filed a writ petition under Article 226 of the
Constitution challenging the punishment imposed on him.
By judgment dated 3.10.2005, the writ petition was dismissed
and in the very same judgment the appellant was directed to
show cause within three weeks from the date of the judgment
as to why the High Court should not consider substitution of
the punishment imposed, by removing him from service.
Pursuant to the notice, the appellant appeared and presented
his case before the Division Bench. By judgment dated
25.11.2005, the appellant was reduced to the rank next below,
that is, Civil Judge (Senior Division). Both the judgments of
the Division Bench are challenged before us.
The learned Counsel for the appellant contended before
us that the appellant was not charged for receiving any illegal
gratification for granting bail to the accused in Crime No. 180
of 1995 registered by the Police Station at Nawabad. The
charge, if at all, was vague and it only stated that the bail
order had been passed by the delinquent officer [appellant] for
extraneous consideration with oblique motive on insufficient
grounds, without cogent and tangible reasons, and that he
attempted to justify his order by superfluous reasoning by
making adverse comments on the conduct of the Executive
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Magistrate, who recorded the dying declaration, fully knowing
that it was a broad daylight double-murder case and that the
grounds were not fit for granting bail and these factors
revealed that the order had been passed for extraneous
consideration. It was argued that there was no specific charge
that the appellant received any monetary consideration from
any of the accused or his relatives. The appellant’s counsel
also pointed out that though the complainant specifically
alleged that a sum of Rs. 80,000/- was given to the appellant-
officer and that this money had been obtained from the bank
on the previous day by the father of accused Ram Pal, these
allegations were not proved and that the complainant, at the
time of enquiry, stated that he had heard of this story from
some servants and from the very nature of the allegation, they
were disbelieved and that was why a specific charge was not
framed against the appellant. It was further argued by
appellant’s counsel that though there was no charge against
the appellant, the Judge who conducted the enquiry allowed
the complainant to adduce evidence, and eventually he came
to the conclusion that there was absolutely no evidence to
show that the delinquent officer had received any illegal
gratification from any party.
The question for consideration is whether the appellant
had granted bail on insufficient grounds or was justified in
passing such an order. Granting of bail to accused pending
trial is one of the significant judicial functions to be performed
by a Judicial Officer. In the instant case, neither the State nor
the complainant had filed any appeal against the order passed
by the appellant. The State did not allege that the accused
who had been granted bail was likely to abuse his bail or likely
to abscond. It is also pertinent to note that the accused to
whom the appellant had granted bail was one of the three
accused against whom charge sheet had been filed by the
police. The other two accused were Rejendra and Raghu Nath.
As per the First Information Report, Ram Pal, to whom the
appellant had granted bail, and Raghu Nath, who obtained
bail from the High Court, had used fire-arms as a result of
which two persons died. As per the prosecution case, the
accused Ram Pal is alleged to have caused the death of one of
the victims while accused Raghu Nath was alleged to have
caused the death of the other victim. Accused Raghu Nath
was granted bail by the High Court on 20.9.1995. Accused
Rajendra was granted bail as early as 19.8.1995. Accused
Ram Pal had been in custody for more than one year. The
police had already filed the charge-sheet against him and the
court was yet to frame the charge against all the accused.
Accused Ram Pal was a student and he alleged that had he
suffered a loss of one year’s study. He also alleged that his
father was seriously ill due to a heart ailment and he produced
a medical certificate from one of the professors working in the
local medical college. It was under these circumstances that
the bail application filed by Ram Pal came to be heard by the
appellant and he granted bail to him by an order passed on
22.6.1996. It is also important that the complainant made an
attempt to have the bail application transferred from the court
of the appellant to the court of the Principal Sessions Court.
Though he filed the application for transfer, he did not press
for stay of the proceedings. The appellant-officer came to
know about the filing of the transfer application and brought
this fact to the notice of the counsel who appeared for the
complainant and also the State prosecutor. Both the counsel
had no objection to the hearing of the bail application by the
appellant and accordingly the appellant heard the bail
application and passed the order granting bail to Ram Pal. It
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is clear that by filing a frivolous transfer application the
complainant only intended to create a sense of threat so as to
influence the appellant not to grant bail to the accused. The
filing of the transfer application by the complainant could not
be viewed from any other angle. Despite this, the
complainant did not file any application for cancellation of bail
granted to the accused.
The learned Judge who conducted the enquiry held that
in the facts of the case where a heinous and daring offence
had been committed in broad daylight and two persons had
been shot dead in a crowded area next to the Collectorate at
Jhansi and the accused were named in the FIR as well as in
the dying declarations and their bail applications having been
considered and rejected twice on merits by the respective
courts, the third bail application granted by the charged officer
in utter disregard of the judicial norms and on insufficient
grounds appears to be based on extraneous consideration.
The learned enquiry Judge did not care to take notice of the
fact that the co-accused who were similarly situate had been
granted bail by the High Court and that accused Ram Pal, who
was a student and had been in jail for more than one year was
granted bail for cogent reasons, set out in the order passed by
the appellant. In the bail order, the appellant stated that
there was an allegation that the Magistrate who recorded the
dying declaration was once upon a time a tenant in one of the
houses owned by the complainant. Taking cognizance of this
fact by the appellant in the order could not be said to be a
totally unwarranted and a superfluous reasoning.
The counsel for the respondent pointed out that on three
previous occasions the bail had been declined to the very same
accused and as there was no change in the circumstances, the
appellant-officer should not have considered the fourth bail
application as well. Of course, in the previous bail
applications, many of the contentions raised by the accused
were considered, but an accused has the right to file bail
application at any stage when undergoing imprisonment as an
under-trial prisoner. The fact that the two other accused had
already been enlarged on bail was a valid reason for granting
bail to accused Ram Pal. Moreover, accused Ram Pal had
been in jail for one year as an under-trial prisoner and the
charge-sheet had already been filed. In our opinion, if accused
Ram Pal were to be denied bail in these circumstances, it
would have been a travesty of justice especially when all
factors relevant to be gone into for considering the bail
application were heavily loaded in favour of grant of bail to
accused Ram Pal.
We fail to understand as to how the High Court arrived
at a decision to initiate disciplinary proceedings solely based
on the complaint, the contents of which were not believed to
be true by the High Court. If the High Court were to initiate
disciplinary proceedings based on a judicial order, there
should have been strong grounds to suspect officer’s
bona fides and the order itself should have been actuated by
malice, bias or illegality. The appellant-officer was well within
his right to grant bail to the accused in discharge of his
judicial functions. Unlike provisions for granting bail in TADA
Act or NDPS Act, there was no statutory bar in granting bail
to the accused in this case. A Sessions Judge was competent
to grant bail and if any disciplinary proceedings are initiated
against the officer for passing such an order, it would
adversely affect the morale of subordinate judiciary and no
officer would be able to exercise this power freely and
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independently.
This Court on several occasions has disapproved the
practice of initiation of disciplinary proceedings against
officers of the subordinate judiciary merely because the
judgments/orders passed by them are wrong. The appellate
and revisional courts have been established and given powers
to set aside such orders. The higher courts after hearing the
appeal may modify or set aside erroneous judgments of the
lower courts. While taking disciplinary action based on judicial
orders, High Court must take extra care and caution.
In Iswar Chandra Jain v. High Court of Punjab and
Haryana, AIR 1988 SC 1395, this Court observed that while
exercising control over subordinate judiciary under Art. 235 of
the Constitution, the High Court is under a Constitutional
obligation to guide and protect subordinate judicial officers.
An honest and strict judicial officer is likely to have
adversaries. If complaints are entertained in trifling matters
and if the High Court encourages anonymous complaints, no
judicial officer would feel secure and it would be difficult for
him to discharge his duties in an honest and independent
manner. It is imperative that the High Court should take
steps to protect honest judicial officers by ignoring ill-
conceived or motivated complaints made by unscrupulous
lawyers and litigants.
In K.P. Tiwari v. State of Madhya Pradesh, AIR 1994
SC 1031, where the High Court reversed the order passed by
the lower court making remarks about interestedness and
motive of the lower court in passing the unmerited order, this
Court observed that one of the functions of the higher court is
either to modify or set aside erroneous orders passed by the
lower courts. Our legal system acknowledges fallibility of
judges. It has to be kept in mind that a subordinate judicial
officer works mostly in a charged atmosphere. He is under a
psychological pressure -- contestants and lawyers breathing
down his neck. He does not enjoy the detached atmosphere
of the higher court. Every error, however gross it may be,
should not be attributed to improper motives. The Judges of
the High Court have a responsibility to ensure judicial
discipline and respect for the judiciary from all concerned. No
greater damage can be done to the administration of justice
and to the confidence of the people in the judiciary if the
higher courts express lack of faith in the subordinate judiciary
for some reason or other. That amounts to destruction of
judiciary from within.
In Kashi Nath Roy v. The State of Bihar, AIR 1996 SC
3240, this Court observed under a similar circumstance that
in our system appellate and revisional courts have been set up
with the presupposition that the lower courts in some measure
of cases can go wrong in decision making in law and in fact.
The higher courts have been established to correct errors. In
cases where intolerable error is pointed out, it is functionally
required to correct the error in an appropriate case and in a
manner befitting maintaining dignity of the court and
independence of the judiciary. The higher court should convey
its message in the judgment to the officer concerned through a
process of reasoning, essentially persuasive, reasonable,
mellowed but clear and result oriented and rarely a rebuke.
In series of other cases also, this court disfavoured the
practice of passing strictures or orders against the
subordinate officers. (See : Braj Kishore Thakur v. Union of
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India, AIR 1997 SC 1157; Alok Kumar Roy v. Dr. S.N.
Sarma, AIR 1968 SC 453)
In Lunjarrao Bhikaji Nagarkar v. Union of India, AIR
1999 SC 2881, this Court held that wrong exercise of
jurisdiction by a quasi judicial authority or mistake of law or
wrong interpretation of law cannot be the basis for initiating
disciplinary proceeding. Of course, if the Judicial Officer
conducted in a manner as would reflect on his reputation or
integrity or good faith or there is a prima facie material to
show recklessness or misconduct in discharge of his duties or
he had acted in a manner to unduly favour a party or had
passed an order actuated by corrupt motive, the High Court by
virtue of its power under Art. 235 of the Constitution may
exercise its supervisory jurisdiction. Nevertheless, under such
circumstances it should be kept in mind that the Judges at all
levels have to administer justice without fear or favour.
Fearlessness and maintenance of judicial independence are
very essential for an efficacious judicial system. Making
adverse comments against subordinate judicial officers and
subjecting them to severe disciplinary proceedings would
ultimately harm the judicial system at the grassroot level.
Apart from the merits of the case before us, we have also
gone into the Confidential Reports of the appellant officer. His
integrity and honesty had never been doubted at any point of
time. In some of the confidential reports except stating that
the appellant-officer was not having smooth relationship with
the advocates, no other adverse remarks had been entered.
Two Senior Judges of the High Court have entered in his
confidential register that the appellant is an officer of honesty
and integrity. The fact that it was a case of daylight murder
wherein two persons died, is not adequate to hold that the
accused were not entitled to bail at all. Passing order on a
bail application is a matter of discretion which is exercised by
a Judicial Officer with utmost responsibility. When a co-
accused had been granted bail by the High Court, the
appellant cannot be said to have passed an unjustified order
granting bail, that too, to an accused who was a student and
had been in jail for more than one year. If at all, the
Inspecting Judge had found anything wrong with the Order,
he should have sent for the officer and advised him to be
careful in future. The punishment of reverting the appellant
to the post of Civil Judge (Sr. Division), in the facts and
circumstances of this case could only be termed as draconian
and unjust. The appellant had been in the cadre of District
Judge for eight years at the time this grave punishment of
reversion to a lower rank was imposed on him. In our opinion,
the punishment was clearly disproportionate to the lapse
alleged to have been committed by him. The imposition of the
punishment of withholding two increments with cumulative
effect also appears to be disproportionate to the alleged lapse.
Consequently, we set aside the Judgment of the High
Court dated 3.10.2005 and also the Judgment rendered by the
very same court on 25.11.2005. The appellant shall be
immediately posted to the cadre of District Judge and paid all
monetary benefits due to him as a consequence thereof. We
also set aside the initial order passed by the Full court of the
High Court imposing the penalty of withholding two
increments to the appellant with cumulative effect.
As the Full Court alone is the ultimate competent
authority to consider all disciplinary matters and has indeed
taken the decision impugned before us, we remit the matter to
the Full Court to consider afresh the question of imposition of
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appropriate punishment on the appellant.
The appeal is disposed of accordingly.