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2005 DIGILAW 157 (GUJ)

M. G. PADHIYAR v. HONble HIGH COURT OF GUJARAT

2005-03-09

ANANT S.DAVE, G.S.SINGHVI

body2005
G. S. SINGHVI, J. ( 1 ) THE petitioner has filed this petition under Article 226 of the Constitution of India for quashing the decision contained in letter No. A. 3506/02 dated 11. 10. 2002, sent by the Registrar, High Court of Gujarat. ( 2 ) FOR deciding the issue arising in this petition, we may briefly notice the fact. While he was working as Joint Civil Judge (Senior Division)-cum-Judicial Magistrate First Class, Vadodara, learned Chief Metropolitan Magistrate vide his order dated 11. 9. 2000, assigned the urgent charge of all the Courts of Metropolitan Magistrate, Ahmedabad to the petitioner, for the month of December, 2000. ( 3 ) ON 25. 12. 2000, one Shri Dushyant Bojak who was accused in a case registered under Sections 3 and 6 of The Indian Wireless Telegraphy Act, 1933 and Section 420 of the Indian Penal Code, surrendered before the petitioner by submitting application of the same date, which was accompanied by the Power of Attorney executed in favour of Shri Narendra S. Dixit, Advocate. Notice of the application was issued to the Central Bureau of Inverstigation (for short "cbi"), with the direction to the officer concerned to remain present at 4. 30 P. M. Shri Rajkumar Adaylal, an officer of the CBI appeared before the petitioner and made an oral request for custody of the accused. However, as no application under Section 167 of the Code of Criminal Procedure was filed by the official concerned and the case diary was not produced, the petitioner directed judicial custody of the accused. Immediately thereafter, Advocate for the accused filed an application for grant of bail. After hearing the Counsel for the accused and the officer of the CBI, the petitioner vide his order dated 25. 12. 2000, granted bail to the accused, subject to the condition that he shall appear in the CBI Office on every Friday and shall not leave the country for a period of six months. Criminal Revision Application No. 615 of 2000 filed by the CBI against order dated 25. 12. 2000 was dismissed by the learned Special Judge (Court No. 3), Ahmedabad, vide his order dated 30th March, 2001. Criminal Revision Application No. 615 of 2000 filed by the CBI against order dated 25. 12. 2000 was dismissed by the learned Special Judge (Court No. 3), Ahmedabad, vide his order dated 30th March, 2001. ( 4 ) IT appears from the record that Shri Dushyant Bojak was also an accused in an earlier case registered under Sections 120b and 420 of the Indian Penal Code, read with Section 3 (1) (d) of The Prevention of Corruption Act, 1988 and Section 3 (1) (3) of The Indian Telegraphy Act, 1933. In that case, Chief Metropolitan Magistrate granted him bail vide order dated 25. 1. 2000. That order was set aside by the learned Sessions Judge, Ahmedabad (Rural) in Criminal Misc. Application No. 194 of 2001. The accused carried the matter to the High Court in Criminal Revision Application No. 451 of 2001. While dismissing that application on 13. 2. 2002, the learned Single Judge made the following observations:-"13. BEFORE it is concluded, I would like to state that petitioner, after being released on bail in the first offence, is alleged to have broken open the seals applied on the premises where muddamal articles have been kept by the CBI and taken away some of the muddamals to the nearest building known as Nalanda Towers and also used the same premises again for indulging into the same activity and hence, second offence was registered by the CBI which reflects from the detailed affidavit filed by C. B. I and also from the panchnama drawn by them and he was not traceable. On 25. 12. 2000 being a holiday, an application was submitted by the petitioner in R. C. No. 30 (S)/2000 Gandhinagar for surrendering himself before the Court, true copy of which is at page Nos. 111 and 112 of the compilation. On plain reading of said application, it can be seen that neither any advocate nor anybody has identified the present petitioner as the accused of that case. Then also, Court has issued notice to the C. B. I Gandhinagar in writing asking the investigating officer to remain present at 4. 30 P. M. On the same date if petitioner is required to be further investigated by taking him in custody and one Inspector remained present before the learned Metropolitan Magistrate at his residence. Then also, Court has issued notice to the C. B. I Gandhinagar in writing asking the investigating officer to remain present at 4. 30 P. M. On the same date if petitioner is required to be further investigated by taking him in custody and one Inspector remained present before the learned Metropolitan Magistrate at his residence. Instead of sending him to custody, detailed application for bail submitted by the petitioner along with various judgements was allowed and petitioner was released on bail by the learned Magistrate after 4. 30 p. m. without giving any opportunity to the otherside even to call the advocate. It is true that learned Magistrate can take the person into judicial custody. But when the concerned Magistrate was having charge of bail only for the holiday and also when he was not knowing anything about the offence in question, he ought to have granted time to the C. B. I. to represent their case. This approach of the learned Magistrate will raise several questions in future as to whether it is not the duty of the Court to give opportunity to all concerned i. e. to both the accused as well as the prosecution. Since this point is not before this Court in this amtter, I am not discussing further. However, I direct the Registrar, High Court of Gujarat to place the issue before the concerned authority for doing the needful. " ( 5 ) WHEN the order of the learned Single Judge was placed before the High Court on administrative side, it was decided to call for the explanation of the petitioner. Accordingly, letter No. A. 350/02 dated 30. 4. 2002 was issued to the petitioner requiring him to submit explanation in the matter of strictures passed by the learned Single Judge. The petitioner submitted explanation dated 3. 6. 2002 stating therein that he had not granted bail to the accused for any extraneous reason/consideration. He denied that the accused had surrendered at his residence and that the bail order was passed without giving opportunity of hearing to the CBI. He pointed out that the bail order had been confirmed by the learned Special Judge and submitted there was no justification to castigate him. After considering the explanation, the High Court on administrative side decided to keep the strictures passed by the learned Single Judge in the service record (confidential reports file) of the petitioner. He pointed out that the bail order had been confirmed by the learned Special Judge and submitted there was no justification to castigate him. After considering the explanation, the High Court on administrative side decided to keep the strictures passed by the learned Single Judge in the service record (confidential reports file) of the petitioner. This was conveyed to him by the Registrar of the High Court vide his letter dated 11. 10. 2002. The petitioner has questioned the propriety of the strictures recorded by the learned Single Judge in his order dated 13. 2. 2002 on several grounds including the one that the same are violative of principles of natural justice. He has pleaded that before recording adverse observations, the learned Single Judge did not give him notice or opportunity to submit explanation and thus, he has been condemned unheard. ( 6 ) WE have heard Shri B. S. Patel, Counsel for the petitioner and Shri J. B. Pardiwala, Counsel for the respondent No. 1 and perused the records. The question whether the superior Court can while exercising its appellate and revisional jurisdiction record adverse observations, remarks or strictures against a subordinate judicial officer without hearing the officer concerned, is no longer res-integra and must be treated as settled by the judgements of the Supreme Court in State of U. P Vs. Mohammad Naim, 1964 (2) SCR 363 , Niranjan Patnaik Vs. Sashibhusan Kar. 1986 (2) SCR 569 and in the matter of K. a Judicial Officer, reported in 2001 (1) SLR 581. In the last mentioned case, the Supreme Court after making reference to the earlier judicial precedence laid down the following propositions. "11. THOUGH the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests: (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. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve (See Mohammad Naim [supra])""14. . . . . . . . The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve (See Mohammad Naim [supra])""14. . . . . . . . The exercise of statutory jurisdiction, appellate or revisional and the exercise of constitutional power to control and supervise the functioning of the district courts and courts subordinate thereto empowers the High Court to formulate an opinion and place it on record not only on the judicial working but also on the conduct of the judicial officers. The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms and observations touching a subordinate Judicial Officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgement reportable or not, is a pronouncement in open and therefore becomes public. The same Judge who found himself persuaded, sitting on judicial side, to make observations guided by the facts of a single case against a subordinate Judge may, sitting on administrative side and apprised of overall meritorious performance of the subordinate Judge, may irretrievably regret his having made those observations on judicial side the harming effect whereof even he himself cannot remove on administrative side. " ( 7 ) SHRI J. B. Pardiwala fairly stated that before recording the observations in question the learned Single Judge did not give opportunity of explanation and/or hearing to the petitioner. He also conceded that before disposing of the explanation submitted by the petitioner in response to the notice dated 30. 4. 2002, the High Court did not give opportunity of hearing to the petitioner. Thus, there is no escape from the conclusion that the petitioner has been condemned unheard. ( 8 ) AS a sequal to the above, we allow the petition and quash the communication dated 11. 10. 2002 and direct that the adverse remarks and observations recorded under order dated 13. 2. Thus, there is no escape from the conclusion that the petitioner has been condemned unheard. ( 8 ) AS a sequal to the above, we allow the petition and quash the communication dated 11. 10. 2002 and direct that the adverse remarks and observations recorded under order dated 13. 2. 2002, passed by the learned Single Judge in Criminal Revision Application No. 451 of 2002 shall not form part of the service record of the petitioner and shall not be used against him. ( 9 ) RULE is made absolute in the above terms. There shall be no order as to costs. .