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2000 DIGILAW 206 (KER)

Soman v. Vasanthakumari

2000-03-30

K.A.MOHAMMED SHAFI

body2000
Judgment :- K.A. Mohamed Shafi, J. This Crl.M.C. is filed by the Judicial First Class Magistrate, Adoor now working in Munsiff, Ranni to expunge the adverse remarks/ observations made by the Sessions Court, Pathanamthitta against him in the order dated 20.11.98 in Crl.M.C.No.1038/98 of Sessions Court, Pathanamthitta. While the petitioner was working as Judicial First Class Magistrate, Adoor, accused 1 and 2 arrested in crime No. 96/98 registered by Kodumon Police alleging offence punishable under S.55(b) of the Abkari Act were produced before him on 1.9.98 and remanded them to judicial custody. Again he extended the remand when they were produced. C.M.P. 6668/98 filed by accused Nos.1 and 2 seeking bail was dismissed by the petitioner on 5.10.98. Subsequently the remand has been extended twice. On 28.10.98 when the accused were produced seeking to extend the remand the first accused filed a petition attested by the Superintendent, Sub Jail, Pathanamthitta where she had undergone detention before the petitioner seeking bail stating that she is suffering from heart ailment, that she was taken to General Hospital, Pathanamthitta thrice due to the ailment, that she requires urgent treatment and that she has been under custody for 28 days. She also stated that her husband is sickly and requires an operation immediately and there is nobody else to look after him except herself. A similar application seeking bail was also filed through counsel. After giving notice to the A.P.P. and hearing counsel for petitioner and APP the petitioner granted bail to the first accused on 18.10.98 itself. Annexure A is the copy of the petition filed by the 1st accused from prison countersigned by the Superintendent, Sub Jail, Pathanamthitta on 28.10.98. annexure- b is the copy of the application seeking bail filed by the first accused through counsel on 28.10.98. Annexure C is the copy of the order dated 28.10.98 passed by the petitioner in CMP. No. 8094/98 filed by the first accused for granting bail to her. 2. It is submitted by the petitioner that he received a phone call from the Sessions Court, Pathanamthitta at about 3.30 pm on 5.11.96 directing him to submit the entire records in crime No. 96/98 of Kodumon Police Station through a special messenger on that day itself to the District and Sessions Court and accordingly he sent the entire records through special messenger and was produced before the District Court by him on that day. He also submitted that on 17.11.98 he received an order passed by the Sessions Court, Pathanamthitta in Crl. M.P. No. 969/98 dated 24.10.98 dismissing the application seeking bail filed by the first accused in crime No. 96/98 of Kodumon Police Station. According to the petitioner it was not stated in the petitions filed by the first accused evidenced by Annexure A and B before him on 28.10.98 nor A.P.P. informed him about the filing of the petition by the first accused seeking bail before the Sessions Court and dismissal of the same by the Sessions Court on 24.10.98. According to him, it is only on receipt of the order on 17.11.98 he in fact knew for the first time about the filing of Cr1.M.P. 969/98 by the first accused seeking bail and dismissal of the same by the Sessions Court on 24.10.98. 3. It is further stated by the petitioner that the 2nd accused in that crime produced an order dated 20.11.98 in Cr1.M.P. No. 1038/98 passed by the Sessions Court, Pathanamthitta granting bail to the 2nd accused and on going through that order he found certain adverse remarks were made by the Sessions judge against him. Therefore, highly aggrieved by the adverse remarks made by the Sessions Court in that order the petitioner has filed this Cr1.M.C. to expunge the following adverse remarks against him in the order in Crl.M.P. No. 1038/98 dated 20.11.98. 4. The learned Magistrate while granting bail to the 1st accused has not considered these matters. The bail, on the other hand, appears to have been granted on extraneous considerations. This is evident from the order dt. 28.10.98 of the learned Magistrate. 5. It is therefore clear that the order of the learned Magistrate granting bail to the first accused was on extraneous considerations and not on the basis of anything contained in her bail application. The learned Magistrate ought not to have released the first accused on bail especially when her first application before this Court was dismissed on 24.10.98 and the second application was pending before this court. 6. The learned Magistrate ought not to have released the first accused on bail especially when her first application before this Court was dismissed on 24.10.98 and the second application was pending before this court. 6. In the circumstances the action of the Magistrate in granting bail to the first accused after rejection of her bail application by this Court and pending consideration of her subsequent bail application before this Court is highly irregular and improper and it also amounts to usurpation of the powers of the Sessions judge and gross violation of the direction contained in the official memorandum No. D1-14240/89 dated 18.7.89 issued by the Honourable High Court. 7. Heard counsel for petitioner and P.P. The petitioner has vehemently contended that if he had any knowledge or information of the filing of Cr1.M.P. No. 969/98 filed by the first accused in Crime No. 96/98 of Kodumon police station seeking bail before the Sessions Court and its dismissal on 24.10.98 by the Sessions Court and the filing of any subsequent application seeking bail by her before the Sessions Court, he would not have passed the order granting bail to her in Crl.M.P. 8094/98 evidenced by Annexure C order. Copy of the order dt. 24.10.98 passed by the Sessions Court, Pathanamthitta in Crl.M.P.No. 969/98 is produced as Annexure D and the copy of the order passed by the Sessions Court, Pathanamthitta in Crl.M.P.No.1038/98 dt. 20.11.98 is produced as Annexure C to this petition. 8. As already noted Annexure E order is passed by the Sessions Court granting bail to the 2nd accused, though the petition is seen to have filed by both accused. It is stated in Annexure E order that that petition filed on 27.10.98 came up for hearing on 30.10.98 counsel for petitioner submitted that the prayer for bail in respect of the first accused is not pressed as she has been enlarged on bail by the petitioner herein on 28.10.98 pending consideration of the bail application before the Sessions Court. 9. 9. The Sessions Court has found that the offence alleged against the accused in that case being punishable under S.55(b) of the Abkari Act and triable exclusively by the Sessions Court and the punishment provided for the said offence being imprisonment for 10 years and with fine not less than Rs.1 lakh, the Sessions Court alone has the jurisdiction to grant bail to the persons who is accused of an offence under S.55(b) of the Act. Therefore the order passed by the petitioner herein granting bail to the first accused is usurpation of the powers of the Sessions Court. 10. Counsel for petitioner has submitted that the above observation made by the Sessions Court is incorrect and the decision reported in Asokan v. State of Kerala (1998(1) KLT 330) a Division Bench of this Court has held that the Judicial First Class Magistrate has got jurisdiction to grant bail for the offence punishable under the Abkari Act with imprisonment for three years or more. I find no observation in the judgment reported in 1998(1) KLT 330 referred to above by the Division Bench of this Court to the effect that Judicial First Class Magistrate has got jurisdiction to grant bail in cases punishable with imprisonment for three years or more under the Abkari Act. Therefore the contention of the petitioner that the Judicial First Class Magistrate is competent to grant bail for the offence punishable under the Abkari Act with imprisonment for three years and more is not sustainable. But it has to be noted that even if the Judicial First Class Magistrate committed a mistake in the order passed, the Sessions Court has got the power to call for the records and rectify the mistake in the order under due process of law. 11. After hearing the argument advanced by counsel for petitioner and the P.P. I find no reason to disbelieve the above contentions raised by the petitioner, I also find no reason to disbelieve the contention of the petitioner that he received the copy of the order passed by the Sessions Court in Cr1.M.P. No. 969/98 dt. 24.10.98 only on 17.11.98 in the absence of anything on record to show that the order was communicated to him before he entertained and disposed of Annexures A and B petitions by Annexure C order. 24.10.98 only on 17.11.98 in the absence of anything on record to show that the order was communicated to him before he entertained and disposed of Annexures A and B petitions by Annexure C order. Therefore the observation made by the learned Sessions Judge in Annexure E order to the effect that in the circumstances the action of the Magistrate in granting bail to the first accused after rejection of her bail application by this Court and pending consideration of her subsequent bail application before this Court is highly irregular and improper and it also amounts to usurpation of the powers of the Sessions judge and gross violation of the direction contained in the official memorandum No. D1-14240/89 dt. 18.7.89 issued by the High Court is not at all justified or warranted. It is seen that the official memorandum No. D1-14240/89 dated 18.7.89 issued by this Court has no relevancy to the matter referred to by the Sessions Court. 12. This Court as well as the Supreme Court in various judgments has cautioned the Courts against making remarks against lower Courts. In the decision reported in State of Uttar Pradesh v. Mohammed Naim (AIR 1964 SC 703) the Supreme Court has observed as follows: "If there is one principle of cardinal importance in the administration of justice, that the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by the Supreme Court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping genralisation defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve." 13. In the decision reported in K.P. Tiwari v. State of Madhya Pradesh (AIR 1994 SC 1031) the Supreme Court has observed as follows: "We are, however, impelled to remind the learned judge of the High Court that however anguished he may have been over the unmerited bail granted to the accused, he should not have allowed himself the latitude of ignoring judicial precaution and propriety even momentarily. The higher Courts every day come across orders of the lower Courts which are not justified either in law or in fact and modify them or set them aside. That is one of the functions of the superior Courts. Our legal system acknowledges the fallibility of the judges and hence provides for appeals and revisions. A Judge tries to discharge his duties to the best of his capacity. While doing so, sometimes, he is likely to err. It is well said that a judge who has not committed an error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference in views of the higher and the lower courts is purely a result of a difference in approach and perception. On such occasions, the lower courts are not necessarily wrong and the higher courts always right. It has also to be remembered that the lower judicial officers mostly work under a charged atmosphere and are constantly under a psychological pressure with all the contestants and their lawyers almost breathing down their necks more correctly upto their nostrils. They do not have the benefit of a detached atmosphere of the higher Courts to think coolly and decide patiently. Every error, however gross it may look, should not, therefore, be attributed to improper motive. It is possible that a particular judicial officer may be consistently passing orders creating a suspicion of judicial conduct which is not wholly or even partly attributable to innocent functioning. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions. Even in such cases, the proper course for the higher court to adopt is to make note of his conduct in the confidential record of his work and to use it on proper occasions. The judges in the higher Courts have also a duty to ensure judicial discipline and respect for the judiciary from all concerned. The respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly, no greater damage can be done to the administration of justice and to the confidence of the people in the judiciary when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other. It must be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever in the eyes of their subordinates and of the members of the public. No better device can be found to destroy the judiciary from within. The Judges must, therefore, exercise self restraint. There are ways and ways of expressing disapproval of the orders of the subordinate Courts but attributing motives to them is certainly not one of them. That is the surest way to take the judiciary downhill." 14. In the decision reported in Braj Kishore Thakur v. Union of India and Ors. (AIR 1997 SC 1157) the Supreme Court has observed as follows: "No greater damage can be caused to the administration of justice and to the confidence of people in judicial institutions when judges of higher courts publicly express lack of faith in the subordinate judges. It has been said, time and again, that respect for judiciary is not in hands by using intemperate language and by casting aspersions against lower judiciary. It is well to remember that a judicial officer against whom aspersions are made in the judgment could not appear before the higher court to defend his order. Judges of higher Courts must, therefore, exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary". 15. The above observations made by the Supreme Court make it clear that the higher Court should avoid making aspersions against lower judicial officers and should keep utmost restraint even on occasions the lower judicial officers are to be criticised. 15. The above observations made by the Supreme Court make it clear that the higher Court should avoid making aspersions against lower judicial officers and should keep utmost restraint even on occasions the lower judicial officers are to be criticised. Imputing improper or bad motive against the lower courts will tarnish the image of entire judiciary and the justice administration system. It is clear from Annexures A and B petitions and Annexure C order passed by the petitioner that he considered the fact that the first accused is a woman suffering from illness and requires further treatment as envisaged under the first proviso to S.437 Cr.P.C. Whether he is justified in granting bail to the first accused in view of the special provisions of S.41 and 41A of the Abkari Act is a matter for consideration by the appellate Court. It has to be noted that even though the learned Sessions Judge found that the order passed by the petitioner granting bail to the first accused is improper and by usurpation of the powers of the Sessions Court, did not find it necessary to cancel the bail granted to the first accused by the petitioner as per Annexure C order. Therefore on careful consideration of the nature and facts and circumstances of the case it is clear that the Sessions Judge is not justified in making the adverse remarks against the petitioner noted above and those remarks are liable to be expugned. Hence this Crl.M.C. is allowed. The adverse remarks made by the Sessions Judge against the petitioner in Annexure E order noted above are expunged.