Research › Search › Judgment

Andhra High Court · body

2001 DIGILAW 900 (AP)

Registar (Vigilance) High Court of A. P. v. Station House Officer, P. S. Annasagar, Mahaboobnagar Dist.

2001-08-18

B.S.A.SWAMY, B.SUBHASHAN REDDY, J.CHELAMESWAR, MOTILAL B.NAIK, S.B.SINHA

body2001
S. B. SINHA, C. J. ( 1 ) CAN a District Judge while acting pursuant to the direction of the Chief Justice to make a discreet enquiry in relation to a criminal offence be subjected to interrogation by the police authorities is the question involved in the application. ( 2 ) BEFORE adverting to the question raised in the instant case, we may refer to the facts leading to the filing of the writ petition. One Md. Iftekhar Ahmed, Vice-President, district Telugu Desam Party, mahaboobnagar wrote a letter to The Chief justice of this Court alleging that one deepak of Mahabubnagar was murdered on 31-1-1997 and Nageswara Rao, prohibition and Excise Superintendent, mahabubnagar is involved in the murder. The said petition was forwarded to the member Secretary of the A. P. State Legal services Authority. On the directions of the chief Justice, the Member Secretary of the authority directed Sri T. Ramachandra reddy, District Judge, Mhabubnagar to make an enquiry. He made a discreet enquiry and submitted a confidential report 13-3-1997. In the meantime, the complaint was treated as P. I. L. and numbered as w. P. No. 15009 of 1997. By an order dated 4-8-1997, a Division Bench directed: this Court admitted the writ petition and called for a report from the district Judge, Mahabubnagar. The district Judge, Mahabubnagar submitted his report stating that he thorough enquiry/investigation was desirable either by the CB CID or CBI regarding the murder of Deepak. In view of the report of the District judge, Mahabubnagar, we think it just and proper to direct the Principal secretary, Home Departments government of Andhra Pradesh to hand over the case to respondent no. 4, Director, CB CID, Hyderabad for investigation into the murder of deepak. The writ petition is accordingly, disposed of. ( 3 ) PURSUANT to the said direction, the investigation was taken up by the CB CID. Deputy Superintendent of Police, CB CID addressed a letter to the Registrar of this Court seeking permission to examine sri T. Ramachandra Reddy who had conducted enquiry in the matter. . The said application was placed before p. Venkatarama Reddi, J. (as His Lordship then was) as also before the then Chief justice. Deputy Superintendent of Police, CB CID addressed a letter to the Registrar of this Court seeking permission to examine sri T. Ramachandra Reddy who had conducted enquiry in the matter. . The said application was placed before p. Venkatarama Reddi, J. (as His Lordship then was) as also before the then Chief justice. The proposals put forward by the registrar were: (1) Whether permission may be accorded to the C. I. D. authorities to examine Sri T. Ramachandra reddy, formerly District judge, Mahabubnagar, now chief Metropolitan Magistrate, hyderabad (2) Whether the District Judge, mahabubnagar may be directed to hand over the original petition purported to be sent by Sri Iftekhar ahmad and also other records, if any available in the District Court in the matter. ( 4 ) ON the first proposal, the learned judge directed "yes, he may be examined in his Court chamber on Saturday". As regards the second proposal, he opined"yes It is not known why the petition should have been sent to the Member secretary, L. S. A. who called for a report from D. J. I think, such procedure is wrong. May be avoided in. future". ( 5 ) THE Hon ble the Chief Justice concurred with the said opinion. ( 6 ) THE said order of the High Court on administrative side was communicated to sri T. Ramachandra Reddy in the following terms: the High Court after consideration of the letters addressed by the deputy Superintendent of Police, cid, Nizamabad Zone read above hereby accords permission to the cid authorities to examine sri T. Ramachandra reddy, formerly district Judge, Mahabubnagar, now chief Metropolitan Magistrate, hyderabad in Crime No. 18/97 of annasagar Police Station of mahabubnagar District in his chambers on a Saturday under prior intimation to the Officer. The District Judge, Mahabubnagar is hereby directed to hand over the original petition purported to be sent by Sri Iftekhar Ahmed and other records, if any, in the matter to the cid authorities for investigation after taking due acknowledgment. ( 7 ) UPON receipt of the said letter, sri T. Ramachandra Reddy wrote a letter to the Registrar, Vigilance of this Court on 19-8-1998 stating: it is humbly submitted that when I have discharged Judicial functions in pursuance of the directions given in the writ petition by the Hon ble High court, I should not be subjected for examination by the Police under section 161 Cr. P. C. in the public interest. The Deputy Superintendent of Police, c. I. D. , Nizamabad zone approached me to fix a date for my examination vide his letter dated 17-8-1998. Since relevant records from District Court, mahabubnagar are not received, I could not fix up date. ( 8 ) THE said letter was placed before the Hon ble Chief Justice and Sri Justice p. Venkatarama Reddi (as His Lordship then was) and it was directed to be treated as a public interest litigation in W. P. No. 35378 of 1998 and the same was admitted on 22-12-1998. Thereafter the matter initially came up for hearing before a Bench and on 23-11-2000, the Court appointed Mr. K. G. Kannabhiran, senior counsel of this Court as Amicus Cirine. The court noticed that no order was passed by the Division Bench directing an enquiry by the District Judge Sri T. Ramachandra reddy in the matter. A discreet enquiry had merely been ordered by the Member secretary, Legal Services Authority on the directions of the Chief Justice. ( 9 ) THE District Judge was directed to make himself available to the investigation in his chambers on a Saturday. The Bench by an order dated 16-2-2001 having regard to the importance of the question involved opined that the matter should be. considered by a larger bench. Thus, this bench was constituted. ( 10 ) THE learned Counsel would contend that the District Judge performed a judicial function at the behest of the High Court and in that view of the matter, he should not have been directed to be interrogated by the police authority. The learned Counsel urged that having regard to. the provisions of Article 235 of the Constitution of India, the direction of the High Court was binding on the District Judge and as such in that view of the matter, the doctrine of judicial independence as envisaged under Article 50 of the Constitution demands that he should not have been directed to submit himself to any investigation. The learned Counsel would contend that the provisions of section 121, of the Evidence Act must be interpreted in the light of Article 235 6f the constitution of India. According to the learned Counsel, the investigation of a judicial Officer in such matters is hot only protected under the Judicial Officers protection Act, but also under the contempt of Courts Act. According to the learned Counsel, the investigation of a judicial Officer in such matters is hot only protected under the Judicial Officers protection Act, but also under the contempt of Courts Act. ( 11 ) IN support of his aforementioned contention, reliance has been placed on samsher Singh v. State of Punjab, R, Snbba raov. Advocate General, Anowar Hussahi v.- ajoy Kumar, Registrar, High Court of Madras v. R. Rajaiah. . ( 12 ) AN interim order was passed by this court restraining the D. S. P. , CB CID to examine Sri T. Ramachandra Reddy. The police itself submitted charge -sheet only against two of the accused persons and it was found that Sri Nageswar Rao, superintendent, Prohibition and Excise was not involved in the said case. The D. S. P. also came to the conclusion that recording of the statement of Sri T. Ramachandra reddy, formerly. District and Sessions Judge was of no consequence. ( 13 ) DESPITE the same, we would like to examine the legal position having regard to the importance of the question involved in this matter. ( 14 ) ARTICLE 50 of the Constitution of india reads thus: separation. of judiciary from executive:- The State shall take steps to separate the judiciary from the executive in the public services of the state. ( 15 ) THE Parliament enacted the Judicial officers Protection Act for the greater protection of Magistrates and others acting judicially. Section 1 of the Act provides: no Judge, Magistrate, Justice of the peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court for any act done or ordered to be done by him in the discharge of his judicial duty, whether or not within the limits of his jurisdiction: provided that he at the tme , in good faith, be. lieved himself to have jurisdiction to do or order the act complained of; and no officer of any court or other person, bound to execute the lawful warrants or orders of any such Judge, Magistrate, Justice of the Peace, Collector or other person acting judicially shall be liable to be sued in any Civil Court, for the execution of any warrant or order, which he would be bound to execute, if within the jurisdiction of the person issuing the same. (Emphasis supplied) ( 16 ) SECTION 121 of Evidence Act reads thus: 121. (Emphasis supplied) ( 16 ) SECTION 121 of Evidence Act reads thus: 121. Judges and Magistrates:- No judge or Magistrate shall, except upon the special order of some Court to which he is subordinate, be compelled to answer any questions as to his own conduct in Court as such Judge or magistrate, or as to anything Which came to his knowledge in Court as such Judge or Magistrate; but he may be examined as to other matters which occurred in his presence whilst he was so acting. (Emphasis supplied) ( 17 ) THE provisions of the Judicial officers Protection Act have no application in the facts and circumstances of the case. ( 18 ) THE only question which therefore arises for consideration is whether sri T. Ramachandra Reddy acted in his capacity as a Judge or Magistrate. The answer to the said question in the considered opinion of this Court must be rendered in negative. As the complaint was made by a citizen of India suspecting involvement of a higher authority, that petition at best could be treated to be a PIL. It was not so treated and the Chief Justice presumably in his capacity as Patron in chief of the State Legal Services Authority under the Legal Services Authorities Act, 1987, while forwarding the same to the member Secretary, directed him to call for a report from the District Judge. The Member secretary in his turn without making any enquiry himself directed the District Judge to conduct the enquiry. Whatever was done by the District Judge therefore was not in his judicial capacity, but in terms of the direction issued by the authorities of the a. P. State Legal Services Authority. ( 19 ) WOULD in such a case, the protection be extended to the learned Judge available under Section 121 of the Evidence Act? A judge is not compelled to answer any question as to his own conduct in Court as a Judge or Magistrate or as to anything which came to his knowledge in Court as judge or Magistrate, but he may be examined as to other matters which occurred in his presence while he was so acting. The protection under Section 121 of the Evidence Act therefore is only to the conduct of a Judge. But if something happens in his presence in the Court, he may be examined. The protection under Section 121 of the Evidence Act therefore is only to the conduct of a Judge. But if something happens in his presence in the Court, he may be examined. ( 20 ) IT is unfortunate that this Court directed for making a discreet enquiry on the allegations made by a person as regards involvement of another. While exercising administrative discretion under Article 235 of the Constitution of India, this Court could not have done so. No investigation as regards the culpability or otherwise of an offender could have been the subject matter of investigation by this Court. The Member secretary, A. P. State Legal Services authority and for that matter, the District judge, Mahabubnagar therefore were not acting either in law or on fact pursuant to or in furtherance of this Court s power of superintendence over the subordinate judiciary as adumbrated under Article 235 of the Constitution of India. The Chief justice might have exercised his jurisdiction as patron in Chief of the State Legal Services authority in terms of the provisions of the legal Services Authorities Act and not in his jurisdiction under Article 235 of the constitution. The investigation made by judicial Officer pursuant to the direction issued by the Patron in Chief or the member Secretary, Legal Services Authority thus was made in purported exercise of the power under a statute, but not in terms of article 235 of the Constitution. The District judge, Mahabubnagar while complying with the said directions, was not acting as a judge or a Judicial Officer. No direction as such was issued to the District Judge on the judicial side of this Court as wrongly recorded in one of the Minutes. ( 21 ) IT is unfortunate that such a direction was issued by this Court in terms of the provisions of the Legal Services Authorities act as the said authority cannot conduct an investigation as regards the involvement of a person in commission of a crime. The state Legal Services Authority being a statutory authority can exercise its jurisdiction only within the four corners of the statute. The action of the Patron-in-Chief and the Member Secretary was therefore ultra vires. Unfortunately, the district Judge was placed in an embarrassing position for no fault on his part. ( 22 ) LET us now examine the decisions cited by Mr. Kannabhiran. The action of the Patron-in-Chief and the Member Secretary was therefore ultra vires. Unfortunately, the district Judge was placed in an embarrassing position for no fault on his part. ( 22 ) LET us now examine the decisions cited by Mr. Kannabhiran. ( 23 ) IN Samsher Singh (supra), the Apex court was dealing with absolutely a different situation. The services of the appellant therein were terminated and the said orders were passed on the recommendations of the High Court. The question which arose before the Apex. Court was as to whether the power of the governor in terms of Article 234 of the constitution was to be exercised personally applying his mind. In the context of the power of the President and the Governor of a State vis-a-vis the advice rendered therefor by the Council of Ministers, it was observed: the High Court under Article 235 is vested with the control of subordinate judiciary. The High Court according to the appellant failed to act in terms of the provisions of the Constitution and abdicated the control by not having an inquiry through Judicial officers subordinate to the control of the High Court but asking the government to enquire through the vigilance Department. ( 24 ) KRISHNA lyer. J. further observed: we declare the law of this branch of our Constitution to be that the president and Governor, custodians of all executive and other powers under various Articles shall, by virtue of these provisions, exercise their formal constitutional powers only upon and in accordance with the advice of their ministers save in a few well-known exceptional situations. Without being dogmatic or exhaustive, these situations relate to (a) the choice of prime Minister (Chief Minister) restricted though mis choice is by the paramount consideration that he should command a majority in the house, (b) the dismissal of a government which has lost its majority in the House, but refuses to quit Office, (c) the dissolution of the house where an appeal to the country is necessitous, although in this area the head of the State should avoid getting involved in politics and must be advised by his Prime Minister (Chief minister) who will eventually take the responsibility for the step. We do not examine in detail the Constitutional properties in these predicaments except to utter the caution that even here the action must be compelled by the peril to democracy and the appeal to the House or to the country must become blatantly obligatory. We have no doubt that de Smith s statement regarding royal assent holds good for the President and Governor in India. Refusal of the royal assent on the ground that the Monarch strongly disapproved of a Bill or that it was intensely controversial would nevertheless be unconstitutional. The only circumstances in which the withholding of the royal assent might be justifiable would be if the government itself were to advise such a course - a highly improbable contingency - or possibly if it was notorious that a Bill had been passed in disregard to mandatory procedural requirements; but since the government in the latter situation would be of the opinion that the deviation would not affect the validity of the measure once it had been assented to, prudence would suggest the giving of assent. The second spinal issue in the case, as earlier indicated, bears on fearless justice, another prominent creed of our constitution. The independence of the judiciary is. a fighting faith of our founding document. Since the days of lord Coke/judicial independence from executive control has been accomplished in England. The framers of our Constitution impressed by this example, have fortified the cherished value of the rule of law by incorporating provisions to insulate the Judicature. Justice becomes fair and free only if institutional immunity and autonomy are guaranteed. The exclusion of executive interference with the Subordinate Judiciary, i. e. , grass-roots justice, can prove a teasing illusion if the control over them is vested in two mastefs, viz. , the High court and the Government, the latter being otherwise stronger. Sometimes a transfer could be more harmful than punishment and disciplinary control by the High Court can also be stultified by an appellate jurisdiction being vested in Government over the high Court s administrative orders. This constitutional perspective informed the framers of our constitution when they enacted the relevant Articles 233 to 237. Any interpretation of administrative jurisdiction of the High Court over its subordinate limbs must be aglow with the thought that separation of the executive from the Judiciary is a cardinal principle of our Constitution. This constitutional perspective informed the framers of our constitution when they enacted the relevant Articles 233 to 237. Any interpretation of administrative jurisdiction of the High Court over its subordinate limbs must be aglow with the thought that separation of the executive from the Judiciary is a cardinal principle of our Constitution. However, we do not pursue this question further since, in the present case, Government has agreed with and acted oh the High Courts recommendation and moreover, the methodology of conflict resolution, when the view of the High Court is unpalatable to the Executive, falls to be directly considered in a different set of pending appeals. ( 25 ) THE said decision has therefore no application in the fact situation of the present case. ( 26 ) IN Anowar Hussain (supra), the officer holding two Offices - one an executive office as a Sub-Divisional Officer and other a judicial office as a Sub-Divisional magistrate - ordered the arrest of the plaintiff for art offence under Sec. 436, i. P. C. but the proceedings were closed without any trial and the plaintiff sued the officer for damages for false imprisonment ( 27 ) IT was observed: the appellant held two offices - one an executive office and the other a judicial office. He pleaded protection against the liability arising out of his action substantially on the ground that he acted in the discharge of his duty under the direction given b. y his superior officer. In so pleading he was relying primarily upon his executive office. The Court of first instance and the High Court have come to the conclusion that the appellant had acted recklessly and maliciously in arresting the respondent. That conclusion is based upon appreciation of evidence and has not been challenged before us. As a Judicial officer the appellant has no protection, because he is not shown to have acted in ordering that the respondent be arrested in the discharge of the duties of his office as a Magistrate. ( 28 ) THIS decision is therefore an authority to show that when an Officer does not act as a judicial Officer, the protection under the Judicial Officers Protection Act is not available. ( 28 ) THIS decision is therefore an authority to show that when an Officer does not act as a judicial Officer, the protection under the Judicial Officers Protection Act is not available. ( 29 ) IN R. Subba Rao (supra), the Apex court held that notice imputing malice partiality and dishonesty to the Court in the judicial adjudication of the suits against the party amounted to criminal contempt. The said decision is not relevant for the purpose of this case. ( 30 ) IN Union of India v. Orient Engg. and commrl. Co. the Apex Court was examining the question as to whether an arbitrator could be examined as a witness. It was held that an arbitrator could be examined, but such power should be used sparingly and after careful deliberation. ( 31 ) IT was further held: of course, if a party has a case of mala fides and makes out prima facie that it is not a frivolous charge or has other reasonably relevant matters to be brought out the Court may, in given circumstances, exercise its power to summon even an arbitrator, because nobody is beyond the reach of truth or trial by Court. In the present case, after having heard Counsel on both sides, we are not satisfied that on the present material there is justification for the examination of the arbitrator. ( 32 ) IN Registrar, High Court of Madras (supra) the Apex Court was considering the Case of a compulsory retirement of a member of subordinate judiciary in terms of fundamental Rule 56 (d ). The question which arose for consideration in this case was as to whether such order could be passed by the High Court itself. The question as regards the power of the governor vis-a-vis that of the High Court under Article 235 was answered in the following terms: the test of control is not the passing of an order against a member of the subordinate judicial service, but the decision to take such action. It may be that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member. It may be that so far as the members of the subordinate judicial service are concerned, it is the Governor, who being the appointing authority, has to pass an order of compulsory retirement or any order of punishment against such a member. But passing or signing of such order by the Governor will not necessarily take away the control of the High Court vested in it under Article 235 of the Constitution. An action against any Government servant consists of two parts. Under the first part, a decision will have to be made whether an action will be taken against the Government servant. Under the second part, the decision will be carried out by a formal order. The power of control envisaged under article 235 of the Constitution relates to the power of making a decision by the High Court against a member of the subordinate judicial service. Such a decision is arrived at by holding an enquiry by the High Court against the member concerned. After the High court comes to the conclusion that some action either in the nature of compulsory retirement or by the imposition of a punishment, as the case may be, has to be taken against the member concerned, the High court will make a recommendation in that regard to the Governor and the governor will act in accordance with such recommendation of the High court by passing an order in accordance with the decision of the high Court. The Governor cannot take any action against any member of a subordinate judicial service without, and contrary to, the recommendation of the High Court. ( 33 ) IN the instant case as noticed hereinbefore, the direction to the District judge by the Member Secretary was not made by the High Court in exercise of its jurisdiction under Article 235 of the constitution of India. ( 34 ) SECTION 161, Cr. P. C. reads as under:161. Examination of witnesses by police:- (1) Any police officer making an investigation under this chapter, or any police Officer not below such rank as the State Government may, by general or special order, prescribe in this behalf, acting on the requisition of such Officer, may examine orally any person supposed to be acquainted with the facts and circumstances of the case. (2) Such person shall be bound to answer truly all questions relating to such case put to him by such Officer, other than questions the answers to which would have a tendency to expose him to a criminal charge or to penalty or forfeiture. (3) The Police Officer may reduce into writing any statement made to him in the course of an examination under this section; and if he does so, he shall make a separate and true record of the statement of each such person whose statement he records. ( 35 ) THE Apex Court in Nandini Satpathy v. P. L. Dani while observing that Sec. 161 of cr. P. C. does not only bring within its umbrage the witness, but also the accused held: we hold that Section 161 enables the police to examine the accused during investigation. The prohibitive sweep of Article 20 (3) goes back to the stage of police interrogation - not, as contended, commencing in Court only. . . . . The ban on self accusation and the right to silence, while one investigation or trial is under way goes beyond that case and protects the accused in regard to other offences pending or imminent, which may deter him from voluntary disclosure of criminatory matter. We are disposed to read compelled testimony as evidence procured not merely by physical threats or violence but by physic torture, atmospheric pressure, environmental coercion, tiring interrogative prolixity, overbearing and intimidatory methods and the like - not legal penalty for violation. So, the legal perils following upon refusal to answer or answer truthfully, cannot be regarded as compulsion within the meaning of Article 20 (3 ). The prospect of prosecution may lead to legal tension in the exercise of a constitutional right, but then, a stance of, silence is running a calculated risk. On the other hand, if there is any mode of pressure, subtle or crude, mental or physical, direct or indirect, but sufficiently substantial, applied by the policeman for obtaining information from an accused strongly suggestive of guilt, it becomes compelled testimony , violative of article 20 (3 ). ( 36 ) ANOTHER aspect of the matter may be noticed. An investigation into offence is made by a statutory authority under the provisions of the Code of Criminal procedure. The power of the Investigating officer under Section 161 of Cr. P. C. is wide enough. ( 36 ) ANOTHER aspect of the matter may be noticed. An investigation into offence is made by a statutory authority under the provisions of the Code of Criminal procedure. The power of the Investigating officer under Section 161 of Cr. P. C. is wide enough. The said provision can be taken recourse to for the purpose of finding out the truth or otherwise of the complaint. In the process, the Investigating Officer may, subject to the provisions of the statutes as referred to hereinbefore, examine any person. We are therefore of the considered view that in a peculiar situation of this nature, although it was wholly undesirable to examine the District Judge, mahabubnagar Sri T. Ramachandra Reddy, in law the Investigating Officer could dq so particularly when the CB CID was directed to conduct an independent and impartial investigation into the matter having regard to the fact that a senior Officer of the rank of superintendent of Police, Prohibition and excise was said to be involved. The investigating Officer had taken the permission of the High Court to do so. However, having regard to the facts and circumstances of the case, it is not necessary I to issue any direction in this case. ( 37 ) BEFORE parting with the case, we express our gratitude to mr. K. G. Klannabhiran for his assistance to the Court in the matter. ( 38 ) THE writ petition is accordingly, disposed of.