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1977 DIGILAW 473 (MP)

Kamalkishore v. Kailash Joshi

1977-10-28

G.G.SOHANI

body1977
Short Note : The material facts giving rise to this petition briefly are as follows: On 18th September 1975, a report was filed before the Judicial Magistrate, First Class, Bagli, by the Station Officer, Police Station, Hatpipalia, alleging that the accused named therein appeared to have committed offences punishable under sections 451 and 506 read with section 34 IPC. 2. The summons was accordingly served on non-applicant No.1, and on 30th July 1977, when the case was fixed for hearing, an application was made on behalf of non-applicant No.1 under section 205 of the Code for dispensing with his personal attendance in view of the fact that he had by that time become the Chief Minister of the State of Madhya Pradesh and that due to his onerous duties it would be difficult for him to attend the Court on every date of hearing. After hearing arguments, the trial Court passed an order on 9th August 1977 allowing the application on the ground that for reasons stated in the application it was a fit case for dispensing with the personal attendance of non-applicant No.1 Kailish Joshi. The case was then fixed on 27th August 1977 for hearing arguments on the question of framing charges. On 15th September 1977, a charge was accordingly framed against the accused, including non-applicant No.1 Kailash Joshi. In the meanwhile, on 10th September 1977, complainant Kamalkishore, who had lodged the first information report against the accused leading to the filing of the charge-sheet, submitted an application under section 407 of the Code before this Court praying that the case is transferred to and tried by this High Court on the ground that the subordinate judiciary in the State was under the administrative control of the State Government. Held : The learned council was pressing the petition for transfer only on the short ground that the subordinate judicial service is under some kind of control of the State Government and the petitioner has, therefore, a reasonable apprehension that there would not be a fair trial. Reliance was placed on the decisions reported in Manaklal v. Dr. Premchand, AIR 1957 SC 425 , Hazarasingh v. State of Punjab, AIR 1965 SC 720 , Rajkishore v. State, AIR 1969 Del. 150 and Baikal v. Jarade, 1965 JLJ-SN 63. Reliance was placed on the decisions reported in Manaklal v. Dr. Premchand, AIR 1957 SC 425 , Hazarasingh v. State of Punjab, AIR 1965 SC 720 , Rajkishore v. State, AIR 1969 Del. 150 and Baikal v. Jarade, 1965 JLJ-SN 63. All these decisions, however, turn on the peculiar facts of those cases and none of these decisions even remotely refers to the only question, which I have to decide, as to whether in a case in which the Chief Minister of a State is arraigned as an accused, the High Court should transfer the case and try it itself for the ends of justice on the ground that the subordinate judiciary is under the control of the State Government. 3. At the time of hearing, learned counsel for the petitioner did not choose to refer to any decision of the Supreme Court having a bearing on the question of control over the subordinate judiciary I, therefore, thought it better to bring to the notice of the learned counsel for the petitioner the decisions reported in Punjab and Haryana High Court v. State of Haryana, AIR 1975 SC 613 , State of Haryana v. Inder Prakash, AIR 1976 SC 1841 , R. Mishra v. Orissa High Court, AIR 1976 SC 1899 and Baldav Rai v. Punjab and Haryana High Court, AIR 1976 SC 2490 and requested him to refer to these decisions of the Supreme Court. These decisions, in my opinion, do not leave any room for argument that the subordinate judiciary is under the administrative control of the State Government. In State of Haryana v. Indo Prakash, AIR 1976 SC 1841 and B. Mishra v. Orissa High Court, AIR 1976 SC 1899 , the nature and extent of administrative control of High Court over the subordinate judiciary has been considered. 4. Learned counsel for the petitioner contended that the matter of transfer of judicial officers was still under the control of the State Government. I need only refer to the observations of the Supreme Court, in Punjab and Haryana High Court v. State of Haryana, AIR 1975 SC 613 . 5. It was then urged that the Supreme Court did not consider the implications of the provisions of Art.163 of the Constitution which required the Governor to act in accordance with the advice of Council of Ministers. The contention is untenable. 5. It was then urged that the Supreme Court did not consider the implications of the provisions of Art.163 of the Constitution which required the Governor to act in accordance with the advice of Council of Ministers. The contention is untenable. There is no conflict between the provisions of Art.163 and Art.235 of the Constitution. As observed by the Supreme Court in Baldev Rai v. Punjab and Haryana High Court, AIR 1976 SC 2490 , solution must be found in harmony and not in cold war between the two organs. 6. In view of the aforesaid pronouncements of the Supreme Court, the ground urged in the petition that the subordinate judiciary in the State is under the administrative control of the State Government can not be sustained in law. If in the absence of any allegation against a Judicial Officer, who is trying a case, the High Court were to name an order of transfer and try the case itself on the ground that one of the accused occupied the petition of a Minister or a Chief Minister, it would mean, in my opinion, that this Court has no confidence in the integrity and independence of the subordinate judiciary, a result which would be disastrous as it would shake the confidence of the public in the administration of justice and its faith that law is no respecter of persons. To accede to the argument of the petitioner would mean setting at naught the provisions relating to vesting of control over the subordinate judiciary in the High Court incorporated in the Constitution. As observed by the Supreme Court in B. Misra v. Orissa High Court, AIR 1976 SC 1899 , this contra is vested in the High Court to effectuate a purpose, namely, the securing of the independence of the subordinate judiciary. To uphold the contention of the petitioner would not only result in frustrating the purpose of vesting the control over the subordinate judiciary in the High Court but would also effect the dignity of the subordinate Judiciary. The members of the subordinate judiciary look up to the High Court not only to maintain discipline but also to maintain their dignity which, in my opinion, would be seriously affected if the petitioner's contention is upheld. I have, therefore, no hesitation in holding that the petition is entirely misconceived and deserves to be rejected. The members of the subordinate judiciary look up to the High Court not only to maintain discipline but also to maintain their dignity which, in my opinion, would be seriously affected if the petitioner's contention is upheld. I have, therefore, no hesitation in holding that the petition is entirely misconceived and deserves to be rejected. Petition rejected AIR 1957 SC 425 , AIR 1965 SC 720 , AIR 1969 Del. 150 & 1965 JLJ SN 63 distinguished AIR 1975 SC 613 , AIR 1976 SC 1899 , AIR 1976 SC 2490 & AIR 1976 SC 1841 , relied on.