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2003 DIGILAW 138 (HP)

SURINDER SAKLANI v. HIGH COURT OF H. P.

2003-06-03

K.C.SOOD, V.K.GUPTA

body2003
JUDGMENT V.K. Gupta, C.J. (Oral) :- This is a petition filed under Article 226 of the Constitution by the petitioner, who is a practicing Advocate of the District Courts as well as of this Court for a direction upon the respondents to ensure that in compliance with Article 50 of the Constitution of India, the mechanism with respect to the issuance of certified copies of orders/judgments and other material relating to the District Judiciary of the State of H.PJ is transferred from the control of the Executive to the Judiciary. The petitioner has also prayed for other ancillary reliefs and incidental directions. 2. Reply has been filed by respondents No. 2 and 3 in which it has been repeatedly, in para after para, stressed that the functioning of the Copying agencies as at present with the Executive, at the level of the Deputy Commissioner in the District Headquarters and at the level of Sub Divisional Magistrate at the level of Sub Divisions has been working satisfactorily and that there is no need for transferring the control of the copy agencies from the Executive to the Judiciary. 3. During the course of hearing of this case, we were informed the both, with respect to the decided Judicial matters as well as the, current/pending Judicial cases at various hierarchical levels of the District Judiciary in the State of Himachal Pradesh, the task of issuing certified copies is undertaken and executed by the aforesaid Executive agencies because these agencies are the custodians of the Judicial records and these agencies receive the applications from the applicants desirous of obtaining the copies and these agencies issue the certified copies to such applicants. 4. In this petition we are sterring clear of any controversy as regards the efficient or proper functioning of the Executive agencies entrusted with the task of receiving the applications and issuing the certified copies. We are not passing any judgment on this aspect of the matter. 5. Article 50 of the Constitution of India reads thus : "50. Separation of judiciary from executive. The State shall take steps to separate the judiciary from the executive in the public services of the State." 6. Undoubtedly receiving applications for issuance of certified copies of Court orders, or judgments or other material forming the part of the court record is an integral and in-seprable part, and a continuation of the Judicial proceedings. The State shall take steps to separate the judiciary from the executive in the public services of the State." 6. Undoubtedly receiving applications for issuance of certified copies of Court orders, or judgments or other material forming the part of the court record is an integral and in-seprable part, and a continuation of the Judicial proceedings. It is also similarly an integral part of the Judicial work and a logical discharge of the Judicial functions, whether in current/pending matters, or in such matters, which have been disposed of. Viewed thus, the act of receiving applications for issuance of certified copies, and/or the act of issuing certified copies, are both akin to the performance of Judicial functions. This apart, the custody, preservation and disposal of Judicial record is an integral part to discharge of Judicial duties. Therefore, the entrustment of these tasks to a non-judicial authority, in our considered opinion, runs counter to the mandate of Article 50 of the; Constitution of India. 7. During the pendency of court cases (before the date of final judgment), if any party applies for issuance of certified copies of any order/judgment passed in such cases, the court before which the cases are pending is the best and most suited institution to issue or grant certified copies. Entrusting this function to another agency is not only a very un -testable and peculiar proposition, but also would amount to the said outside agency having control over the judicial record which actually, by well established principles of law, is and should be the property of the Court. Situation with respect to decided cases cannot be any different, because even if a case has been decided by a Court, for any future reference, including for the purposes of issuing copies, the custody of the Judicial record should remain with the Court and it should be the obligation, duty and power of that Court to retain with itself and preserve this record. The record of decided cases is also the property of that Court. Entrusting the responsibility of custody or preservation of the judicial record even of decided cases to an outside agency would amount to the Court being deprived of its power of total control over its own record. 8. The members of the Bar and the litigant public deal directly with the Courts. Entrusting the responsibility of custody or preservation of the judicial record even of decided cases to an outside agency would amount to the Court being deprived of its power of total control over its own record. 8. The members of the Bar and the litigant public deal directly with the Courts. In matters relating to issuance of copies also they should not be driven to an agency which has nothing to do with the functioning of the Courts. Copies of judicial orders, judicial judgments, or other judicial records are invariably and often required for and, with relation to judicial proceedings themselves, say for filing appeals, revisions, inter-locutory petitions, or other applications. The purposes of obtaining certified copies being thus closely inter-linked with judicial functions, it is but natural that the custody and preservation of judicial record rests with the Courts and they alone are entrusted with the responsibility, jurisdiction and power of issuance of the certified copies. 9. Judicial records including the orders and judgments passed by the Courts undoubtedly are in the category of "public documents" as defined in Section 74 of the Evidence Act and as per Section 76 of the Evidence Act, every public officer having the custody of public documents has been given the responsibility to issue to a person on demand a copy of such a public document, together with certificate written at the foot of such copy that it is a true copy of such document. Section 77 of the Evidence Act lays down a salutary and a well established principle of law that certified copies issued under Section 76 (supra) may be produced in proof of the contents of the public documents and it is now also a well settled principle of law that mere production of public documents in the course of Judicial proceedings is a good enough proof of their contents and no other action is required in furtherance thereto. In view of the aforesaid provisions of the Evidence Act also it becomes abundantly clear that the custody of the Judicial record, whether of the decided cases, or of the current or pending cases, should rest with the Judicial Officers and that Judicial officers, in so far as the Judicial record is concerned, are most aptly suited persons to be designated as Public Officers in terms of Section 76 of the Evidence Act. Article 50 of the Constitution of India finding a place in part IV of the Constitution even though in terms of Article 37 is not enforceable per se by any court, yet the principles therein laid down nevertheless being fundamental in the governance of the country, it is the duty of the State to apply these principles both in making laws as well as in the discharge of its Executive functions. Reliance, therefore, placed by the respondents upon the Copying Agency Rules, 1997, in our considered opinion runs counter to, the aforesaid constitutional mandate as contained in Article 50 read with Article 37 of the Constitution. 10. Another important aspect, which cannot be lost sight of relates to the vice of Executive interference or Executive Control over matters judicial, rather than letting the judiciary have the option of dealing with judicial matters itself. Viewed thus, as far as the Executive is concerned, keeping with itself (and hence, in the process excluding the judiciary from the performance of this task) the custody of judicial record, either of the decided cases or of the cases which are pending, or retaining with itself the power, authority or jurisdiction in so far as the issuance of the certified copies of judicial orders is concerned, surely in our considered opinion, would tantamount to Executive interference or Executive Control over the matters Judicial and this would run counter to the constitutional mandate of immunising the Judiciary from any form of Executive Control or interference. In the case of Union of India v. Sankal Chand Himatlal Sheth and another, reported in AIR 1977 SC 2328, a Constitution Bench of the Supreme Court made the following observations which are very apposite. We quote : ".........And hovering over all these provisions like a brooding omnipresence is Article 50 which lays down, as a Directive Principle of State Policy, that the State shall take steps to separate the Judiciary from the Executive in the public services of the State. This provisions, occurring in a chapter which has been described by Granville Austin as "the conscience of the Constitution" and which embodies the social philosophy of the Constitution and its basic underpinnings and values, plainly reveals, without any scope for doubt or debate, the intent of the constitution makes to immunise the Judiciary from any form of Executive control or interference." 11. Their Lordships could not have laid greater emphasis on the all pervasive applicability of Article 50 and the carry need, felt as early as on 19th September, 1977 (the date of the decision of the aforesaid case) even though, since then much water has flowed down the rivers of the country and a lot of snow has melted in the glaciers and mountains of H.P. in these two and half decades, and yet the institution of Judiciary in this State has not been totally immunized from the control and interference of the Executive in so far as the issue of the copies of Judicial orders is concerned. Without dwelling into the greater details as far as this aspect is concerned, the least and the bare minimum that can be said is that in the matters relating to the issuance of copies, when this responsibility and power squarely rests with the Executive, some sort of direct or indirect influence, control or interference is inevitable. 12. We have, therefore, no doubt in our minds that the time has now come when this Court by invoking its extraordinary jurisdiction under Article 226 of the Constitution issue a mandamus to the respondents, particularly to respondents No. 2 and 3 to ensure that the task, responsibility, jurisdiction and power of issuing copies in so far as the Judicial matters are concerned and the responsibility to retain and preserve the custody of the Judicial record is now transferred from the Executive to the Judiciary, lock, stock and barrel and that henceforth the Judiciary alone is entrusted with this responsibility in all respects. 13. Because the transition involves some administrative action, we cannot force the respondents to accomplish this task immediately. Tiding over the transition phase decidedly is going to take some time. We, therefore, with a view to ensure that the transition is smooth and respondents No. 2 and 3 on the one hand and respondent No. 1 on the other hand, work in tandemn and evolve a system whereby the transition is reached in the reasonable short time, give to the respondents a period of more than six months from today to accomplish the aforesaid task. 14. 14. We accordingly direct that with effect from 26th January, 2004, (we perhaps could not have fixed a more auspicious day for this purpose, in keeping with the mandate of Article 50 of the Constitution) the aforesaid task shall be accompanied in all respects and from that date onwards, respondents No. 2 and 3 in complete and total as well as effective consultation with respondent No. 1 shall ensure that the transition is total and absolute. In order to also ensure that the system of issuing copies of the Judicial orders and other judicial record is made litigant friendly, and that the litigants as also the members of the Bar do not any further face difficulties in getting certified copies, steps are taken to ensure, by provision of adequate infrastructure and man power, that the system from 26th January, 2004 starts functioning effectively. It is a common knowledge in this country that issuance of certified copies some time takes unduly long time resulting in either the purpose of obtaining the copies being frustrated, or inordinate delay resulting in filing appeals in the superior Courts, thus also causing undue hardships to the litigants-. In this era of modern technology, the provision of just one (where there is more work then may be two or more) photo copying machines of appropriate size, dimensions and caliber should be a good enough requirement, but only after it has been ensured that both at the District level as well as at the Sub Divisional level, photo copying machines are installed in such adequate number as would suffice the requirements of such areas, keeping in view the work-load iq the immediate past, say 2 to 3 years. The purpose is to ensure that by providing a photo copying machine, the litigants who apply for copies^ are issued the copies either the same day or within the next one or two days. 15. Since presently the ministerial staff associated with the takes of preparing and issuing copies is with the Executive branch of the Government, we direct that respondents No. 2. 15. Since presently the ministerial staff associated with the takes of preparing and issuing copies is with the Executive branch of the Government, we direct that respondents No. 2. and 3 in consultation with respondent No. 1 shall also work out the modalities of transferring the said staff from the Executive branch to the Judiciary to such extent as would be the requirement of the Judiciary in the talks of preservation, and custody of records and also the task of issuing certified copies, or else to create additional posts (if. respondents No. 2 and 3 feel that the transfer of the existing staff or a part of it would not be feasible or would not be hi public interest) as would be the requirement for ensuring the speedy issuance of the certified copies to the litigants. The purpose always would be to bring the desired efficiency in the system and to alleviate the sufferings of the litigant public. 16. In so far as the custody and preservation of the record of the decided cases is concerned, in accomplishing the aforesaid task and to ensure complete and total transition, we leave it to respondents No. 2 and 3 in consultation with respondent No. 1 to either hand over the control of the existing premises where the record is kept for custody and preservation to the Judiciary or to make the Judiciary funds available for the construction of record rooms so that the record is shifted from the custody of the Executive to the custody of the Judiciary. 17. Before parting with this judgment, we do wish to very clearly observe and direct that in implementation of the aforesaid directions, if the respondents or anyone of them feel any difficulty, they are free to approach this Court for any clarification, modification or for any other purpose whatsoever and this Court will be too happy and glad to entertain any such request from such respondents. 18. Petition is disposed of. No order as to costs.