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2000 DIGILAW 620 (PAT)

Bhawesh Chandra Jha v. State Of Bihar

2000-04-21

P.K.SINHA

body2000
Judgment P.K.Sinha, J. 1. Heard learned counsel for the petitioner and learned counsel for the State. Despite service of notice, opposite party No. 2 has not appeared. In any case I am of the opinion that the impugned order being a judicial order passed by opposite party No. 2 Shri Chakradhar Rai, the then District and Sessions Judge, Gaya that could have been heard without making the learned Judge as a party to this application. 2. The facts briefly stated are that in Belaganj P.S. Case No. 82 of 1985 when that came for trial, in course of that a prayer was made by the prosecution to add additional charge under sections 380 and 436 of the Indian Penal Code and to commit the case to the court of Sessions. By order dated 21.7.1988 the learned trial Court concluded that no case under section 436 of the Indian Penal Code was made out, rather further charges could be framed under sections 380 and 435 of the Indian Penal Code. 3. Cr. Rev. No. 165 of 1988/ 26 of 1989 was preferred which was disposed of by the learned 2nd Addl. Sessions Judge, Gaya by order dated 25.2.1992 concurring with the findings of the learned trial court. 4. It will appear that after addition of charges as aforesaid, the prosecution did not examine any fresh witness, rather already examined witnesses were cross- examined on behalf of the accused and the learned Subdivisional Judicial Magistrate, Gaya then in seisin of the case, by order dated 23.6.1995 came to the conclusion that a case under section 436 of the Indian Penal Code was made out and then committed the case to the Court of Sessions. This is how this case came up before the learned Sessions Judge, Gaya and, at the time of hearing on framing of charge, the learned Sessions Judge under section 228 of the Code of Criminal Procedure sent back the case to the court of Chief Judicial Magistrate, Gaya finding that a case was not made out under section 436 of the Indian Penal Code. 5. The petitioner in this case is Bhawesh Chandra Jha, the then Sub- divisional judicial Magistrate, Gaya who has passed the aforesaid order dated 23.6.1995. 5. The petitioner in this case is Bhawesh Chandra Jha, the then Sub- divisional judicial Magistrate, Gaya who has passed the aforesaid order dated 23.6.1995. The grievance of the petitioner, as submitted by the learned counsel, is against the following observation made in the impugned order by the learned Judge :- "This is a very sad situation created by the S.D.J.M. Gaya against all canons of law and law of interpretation without showing any special circumstance and evidence on the record he has undone the order passed by a superior court in a most negligent and shirking manner". 6. Learned lawyer has pointed out that such strong stricture as use of the expression "negligent and shirking manner" should not have been made and the same was unwarranted which could impinge upon the career of the judicial officer. 7. I agree that use of the expression "shirking manner" was not needed to be used in the circumstance of the case. The petitioner had passed an order which might not have been proper or legal but by passing that order it cannot be said that he had shirked in his judicial work. Therefore, the expression "and shirking" is hereby expunged. 8. In so far as the expression "negligent" is concerned, it appears that the petitioner while passing the order for commitment of the case to the court of Sessions has not considered the order in that regard passed by the revisional Court which order must have been on the record and, while passing the order the petitioner was supposed to have considered the order of the revisional court and then he should have passed whatever order he might have deemed proper and just. To this extent learned Magistrate appears to be negligent. 9. However, I find that the revisional court had passed its order on 25.2.1992 and the order by the petitioner was recorded on 23.6.1995 more than three years thereafter. Learned counsel for the petitioner agrees that order of the revisional court was passed while the case was in the court of predecessor in officer, Shri K.N. Rai. That was the case of the year 1995 and by the time of order dated 23.6.1995 was passed, the record must have gone bulky. Learned counsel for the petitioner agrees that order of the revisional court was passed while the case was in the court of predecessor in officer, Shri K.N. Rai. That was the case of the year 1995 and by the time of order dated 23.6.1995 was passed, the record must have gone bulky. There is, therefore, a fair chance that the order of the revisional court might not have come to the notice of the petitioner and, since it was not mentioned in the order it also does not appear that any of the parties had brought that to his notice. Therefore, though, even in such situation, the petitioner can be said to be a bit negligent, that negligence there is a fair chance, was a bonafide one. 10. In the aforesaid circumstance, I feel that the expression used by the learned District Judge, Gaya such as "against all canons of law", "negligent" should not be allowed to visit adversely the petitioner in so far as his career as a judicial officer is concerned. Therefore, I hereby direct that the aforesaid expression should not be treated as adverse to the officer in so far as his career as a judicial officer is concerned. 11. With the aforesaid observation, this application is disposed of.