Research › Search › Judgment

Gujarat High Court · body

2006 DIGILAW 446 (GUJ)

A. U. KURESHI v. HIGH COURT OF GUJARAT

2006-07-25

B.J.SHETHNA, M.D.SHAH

body2006
B. J. SHETHNA, J. ( 1 ) THE petitioner Shri A. U. Kureshi, the then Civil Judge (J. D.) has challenged in this petition, the order of penalty of dismissal from service and prayed that the respondents be directed to reinstate the petitioner on the original post with continuity of service with all consequential benefits of service including back wages by quashing and setting the impugned order of dismissal from service. ( 2 ) THE charge against the petitioner was that Criminal Case No. 2059 of 1989 was pending in his court wherein the accused Ahmed Mir Sab Saiyed and others were arrested by PSI, Shri C. L. Salve, LCB, Bharuch on 4. 11. 1988 from village Palej for the offences punishable under Section 12 of the Bombay Prevention Gambling Act. During the raid, Rs. 40,581/- were recovered along with other muddamal articles from the spot of the crime as well as from the accused persons who are arrested. Though the case was pending in the court since 1. 2. 1989 the plea of the accused could not be recorded by the court due to the absence of one or the other accused persons. During the pendency of the case, an application was submitted for handing over muddamal by another accused which was rejected by the predecessor in office of the delinquent officer. However, abruptly, the plea of the accused was recorded by the delinquent officer on 8. 4. 1992 vide Exhs. 42 to 55. All the accused did not plead guilty to the charge levelled against them. Surprisingly, on that very day i. e. on 8. 4. 1992 accused No. 2 Musa Mohammed Malji, who had never made any such application for handing over muddamal to him submitted an application dated 8. 4. 1992 (Ex. 56) for releasing muddamal articles in his favour. Wherein it was specifically stated by him that the complainant-PSI seized the muddamal articles from the place of crime under seizure panchnama dated 4. 11. 1988. After recording the plea of all the accused on 8. 4. 1992 the delinquent officer first proceeded to record the evidence of Panch Witness-Chimanbhai Nathubhai Rana, who turned hostile and another formal witness PSI Shri Sutania on 27. 4. 1992 and 5. 5. 11. 1988. After recording the plea of all the accused on 8. 4. 1992 the delinquent officer first proceeded to record the evidence of Panch Witness-Chimanbhai Nathubhai Rana, who turned hostile and another formal witness PSI Shri Sutania on 27. 4. 1992 and 5. 5. 1992 respectively without issuing summons to the important witness like PSI Shri C. L. Salve, who had carried out the raid and other witnesses, who could have established the presence of the accused. Thereafter, the evidence of the prosecution was closed by him on 7. 5. 1992 and the case was kept for recording further statement of the accused on 11. 5. 1992 and on 14. 5. 1992 arguments were heard and on the next day i. e. on 15. 5. 1992 all the accused were acquitted by him. ( 3 ) IT was the case of the department as per the complaint, panchnama and evidence on record that Rs. 32,862/- were seized by the police from the spot of the crime and not from the person of the accused No. 2-Musa Mohammed Malji. In spite of it, relying on the bare statement of the accused No. 2-Musa Mohammed Malji, he ordered to return the said amount of Rs. 32,862/- to the said accused No. 2-Musa Mohammed Malji, that too within a period of 8 days before the expiry of one month period, as provided under paragraph 227 (i) (a) of the Criminal Manual, 1977 though his attention was specifically drawn by Mr. B. D. Patel, Senior Clerk of the court. Para 227 (i) (a) of the Criminal Manual reads as under :-"in case where an appeal or revision lies to the Session Court, the Trial Court should not dispose of the muddamal for a period of one month after the expiry of the period of limitation for appeal or revision, and if intimation regarding filling of the appeal or revision is received, till the disposal of the appeal or revision by the Sessions Court. In cases where the appeal or revision lies to the High Court, the Trial Court should not dispose of the muddamal lying in its custody and the Sessions Court should not send the muddamal for the disposal of the Lower Court before completion of four months from the date of the disposal of the case under appeal or revision and the Lower Court should not dispose of for a month after its receipt and if an intimation regarding filling of the appeal or revision is received by the trial court, or the lower court, as the case may be, it should not dispose of the muddamal until revision or appeal is decided by the High Court. " ( 4 ) TO prove its case against the delinquent officer in the inquiry, the Department had examined 3 witnesses; (1) Mr. B. D. Patel, Senior Clerk of the court; (2) Mr. Malek Munirbhai Azambhai, Clerk of the court; and (3) Mr. C. L. Salve, PSI, LCB, Bharuch. Having considered the evidence of all the 3 witnesses led by the Department and the documentary evidence led before it, the Inquiry Officer Mr. H. B. Antani, the then City and Sessions Judge, Ahmedabad (presently the Hon ble Judge of this Court) by his report dated 12. 1. 2000 (Anneuxre-IV) came to the conclusion that the Department proved all the three charges levelled against the delinquent. Considering the report of the Inquiry Officer, the Disciplinary Committee came to the conclusion that all the three charges; (i) that he was guilty of indulging in corrupt practice; (ii) he was guilty of the act of misconduct; and (iii) he acted in a manner of unbecoming of a Judicial Officer, were proved and, therefore, ordered dismissal of the delinquent from service. Ultimately, the respondent-High Court of Gujarat accepted the decision of the Disciplinary Committee and by its order dated 20. 11. 2001 (Annexure-IV) recommended the maximum penalty of dismissal from service. Accordingly, the respondent-State of Gujarat passed the impugned order dismissing the petitioner delinquent from service, which is challenged in this petition. ( 5 ) MR. SINHA, learned counsel for the petitioner, raised following submissions :-1. It was a case of "no evidence". 2. Findings recorded by the Inquiry Officer were based on surmises and conjectures. 3. All the acts of omissions of the Judicial Officer cannot be said to be misconduct. 4. ( 5 ) MR. SINHA, learned counsel for the petitioner, raised following submissions :-1. It was a case of "no evidence". 2. Findings recorded by the Inquiry Officer were based on surmises and conjectures. 3. All the acts of omissions of the Judicial Officer cannot be said to be misconduct. 4. There was an inordinate delay in holding the inquiry against the petitioner. ( 6 ) WE will deal with the first two contentions together. In support of his submission that it was a case of "no evidence" and findings of the Inquiry Officer were based on surmises and conjectures, Mr. Sinha took us through the report of the Inquiry Officer and also to the evidence of Mr. Malek Munirbhai Azambhai (Annexure-V ). It is no doubt true that witness Mr. Malek Munirbhai Azambhai (Ex. 38) stated in his cross-examination that as he was frightened, he has wrongly stated in his statement dated 7. 5. 1992 that summons issued to the witness- Mr. Salve has not returned back. However, from the Rojkam it was clear that summons was never served to the witness Mr. Salve. If this was the only evidence, then we could have very well considered the submission of Mr. Sinha. But, in the instant case, PSI, Mr. Salve, who carried out the raid and arrested the accused was examined by the Department. He has categorically stated that he was never served with the summons. When his evidence is not shaken in the cross-examination and it was relied on by the Inquiry Officer for coming to the conclusion that all the three charges levelled against the delinquent officer were proved, then this court cannot sit in appeal over the said findings arrived at by the Inquiry Officer, which was accepted by the Disciplinary Authority i. e. the High Court of Gujarat, in its writ jurisdiction under Article 226 of the Constitution of India. ( 7 ) LEARNED counsel Mr. Pardiwala appearing for the respondent-High Court was right in submitting that if there is some evidence which is accepted in the inquiry then this court cannot go into that question. He rightly submitted that this cannot be said to be a case of "no evidence". ( 7 ) LEARNED counsel Mr. Pardiwala appearing for the respondent-High Court was right in submitting that if there is some evidence which is accepted in the inquiry then this court cannot go into that question. He rightly submitted that this cannot be said to be a case of "no evidence". In the instant case, there was sufficient oral as well as documentary evidence on the record on which the Disciplinary Authority relied on the report of the Inquiry Officer rightly came to the conclusion that all the three charges levelled against the delinquent officer were proved. Thus, it cannot be said that the learned Inquiry Officer s finding was based on surmises and conjectures as submitted by Mr. Sinha for the petitioner. ( 8 ) THIS brings us to the first contention of Mr. Sinha that all the acts and omissions of the Judicial Officer cannot be said to be misconduct. We fully agree with the submission of Mr. Sinha. However, it cannot be generalized. In the instant case, the acts committed by the delinquent officer were sufficient to come to the conclusion that he indulged into corrupt practice. The way in which he conducted the case speaks volumes about his conduct. It was an old case of 1989 wherein application for returning muddamal submitted by another accused was already rejected by the predecessor in office of the delinquent. The plea of the accused could not be recorded for one or the other reason till 8. 4. 1992. Surprisingly, on 8. 4. 1992 all the accused were present, who were usually used to remain absent and by Exs. 42 to 55 their plea was recorded and on the same day i. e. on 8. 4. 1992 this time accused No. 2-Musa Mohammed Malji gave application for releasing muddamal in his favour though it was specifically stated in it that the said muddamal articles were recovered by the police from the place of the incident under the seizure panchnama dated 4. 11. 1988 and it was not recovered from his person. After recording the plea within less than 20 days, first he recorded the statement of Panch Witness-Mr. Chimanbhai Nathubhai Rana on 27. 4. 1992, who turned hostile and within the period of less than 10 days he recorded the statement of formal witness, PSI, Mr. Sutania and then closed the evidence of the prosecution witnesses on 7. 5. 1992. After recording the plea within less than 20 days, first he recorded the statement of Panch Witness-Mr. Chimanbhai Nathubhai Rana on 27. 4. 1992, who turned hostile and within the period of less than 10 days he recorded the statement of formal witness, PSI, Mr. Sutania and then closed the evidence of the prosecution witnesses on 7. 5. 1992. Thereafter, he proceeded to record further statements of the accused on 11. 5. 1992. He heard arguments on 14. 5. 1992 and on the next day i. e. on 15. 5. 1992 acquitted all the accused and thereafter within a period of 18 days he ordered to hand over muddamal worth Rs. 32,862/- to accused No. 2-Musa Mohammed Malji though period of one month, as provided under paragraph 227 (i) (a) of the Criminal Manual was not over. It is no doubt true that in the instant case, APP, who was hand in glove with the delinquent officer gave pursis to close the evidence which was readily accepted by the delinquent officer and on `no objection given by the APP, the delinquent officer ordered to hand over muddamal to accused No. 2. However, the inquiry was initiated against the said APP also. It is a different matter that the outcome of that case has not come on record. Be that as it may. In clear violation of the provisions of Section 152 (1) of Criminal Procedure Code and paragraph 227 (i) (a) of the Criminal Manual, the delinquent officer had handed over the amount of Rs. 32,862/- to the accused No. 2-Musa Mohammed Malji by obtaining his thumb impression. We are shocked and surprised to note that before the Disciplinary Committee, the learned counsel of the petitioner-delinquent proposed to pay up the said amount of Rs. 32,862/-, which was ordered to be paid by the delinquent officer to the accused No. 2-Musa Mohammed Malji on his application. What more can be said on this! Thus, it was not a simple act or omission on the part of the delinquent officer in passing the order of acquittal and handing over the muddamal to the accused No. 2 to whom the muddamal never belong. Mr. Sinha submitted that the order passed by the delinquent officer acquitting the accused was never challenged before the appellate court by way of appeal or revision. Mr. Sinha submitted that the order passed by the delinquent officer acquitting the accused was never challenged before the appellate court by way of appeal or revision. Once the said order has become final, then it was not open to the High Court on administrative side to re-consider the legality and validity of the order. He submitted that at the most it can be said that the delinquent officer had committed an error in passing such orders. For that he cannot be penalized. Relying on the judgment of the Hon ble Supreme Court in case of YOGINATH D. BAGDE v. STATE OF MAHARASHTRA reported in (1997)7 SCC 739, Mr. Sinha submitted that it is the bounden duty of the High Court under Article 235 of the Constitution to protect the officers of its subordinate judiciary from unscrupulous litigants and lawyers and honest and strict judicial officers, who likely to have adversaries in the moffussil courts were required to be protected by the High Court. There cannot be any quarrel with the principle laid down by the Hon ble Supreme Court in Yoginath s case (supra ). In fact, we are bound by the decision of the Hon ble Supreme Court. So as the judgment delivered by Hon ble Supreme Court in case of P. C. JOSHI vs. STATE OF GUJARAT reported in (2001)6 CC 491, the Hon ble Supreme Court held that "that there was possibility on a given set of facts to arrive at a different conclusion is no ground to indict a judicial officer for taking one view and that too for alleged misconduct for that reason alone". In P. C. Joshi s case (supra), the Hon ble Supreme Court has further observed that "if in every case where an order of a subordinate court is found to be faulty a disciplinary action were to be initiated, the confidence of the subordinate judiciary will be shaken and the officers will be in constant fear of writing a judgment so as not to face a disciplinary enquiry and thus judicial officers cannot act independently or fearlessly". ( 9 ) THE facts of P. C. Joshi s case (supra) were entirely different, which will not be applicable on facts of this case, which we have narrated herein above, in detail. ( 9 ) THE facts of P. C. Joshi s case (supra) were entirely different, which will not be applicable on facts of this case, which we have narrated herein above, in detail. In case of HIGH COURT OF JUDICATURE, BOMBAY v. SHIRISH KUMAR RANGARAO PATIL reported in AIR 1997 SC 2631 , the Hon ble Supreme Court itself has expressed its deep concern over the erosion of values in the judiciary in the following words :-"the lymph nodes (cancerous cells) of corruption constantly keep creeping into the vital veins of the judiciary and the need to stem it out by judicial surgery lies on the judiciary itself by its self-imposed or corrective measures or disciplinary action under the doctrine of control enshrined in Articles 235, 124 (6) of the Constitution. It would therefore, be necessary that there should be constant vigil by the High Court concerned on its subordinate judiciary and self-introspection". ( 10 ) IN case of HIGH COURT OF JUDICATURE AT BOMBAY v. SHASHIKANT S. PATIL and another reported in AIR 2000 SC 22 while reversing the judgment of the Division Bench of Bombay High Court, the Hon ble Supreme Court has observed that;"the Judges, at whatever level may be, represent the State and its authority, unlike the bureaucracy or the members of the other service. Judicial service is not merely an employment nor the Judges merely employees. They exercise sovereign judicial power. They are holders of public offices of great trust and responsibility. If a judicial officer "tips the scales of justice its rippling effect would be disastrous and deleterious. Dishonest judicial personage is an oxymoron". ( 11 ) ONCE, we come to the conclusion that on facts of this case, the respondent High Court has rightly come to the conclusion that all the three serious charges were found to be proved, then except the penalty of dismissal from service, no other penalty can be imposed. Therefore, in our considered opinion, the respondent-High Court has rightly recommended the extreme penalty of dismissal from service and the State Government has rightly passed the order of dismissal from service of the petitioner. Dishonest judicial personage is an oxymoron, as held by the Hon ble Supreme Court of India in case of Shashikant S. Patel (supra), therefore, such officers cannot be continued in the Judiciary. ( 12 ) BEFORE parting, we must state that though initially Mr. Dishonest judicial personage is an oxymoron, as held by the Hon ble Supreme Court of India in case of Shashikant S. Patel (supra), therefore, such officers cannot be continued in the Judiciary. ( 12 ) BEFORE parting, we must state that though initially Mr. Sinha contended that there was inordinate delay in holding the departmental inquiry against the petitioner, but the said argument was not carried further, therefore, we are not answering the same. In view of the above discussion, this petition fails and is hereby dismissed. Rule discharged. No order as to costs.