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2014 DIGILAW 1085 (MAD)

Suresh Rajan v. Registrar General, The Madras High Court, High Court Building, Chennai

2014-06-03

V.M.VELUMANI, V.RAMASUBRAMANIAN

body2014
Judgment : V. Ramasubramanian, J. These appeals arise out of the dismissal of the Writ Petitions filed by the appellants herein, praying for the quashing of the certain communications issued by the Registrar (Judicial) of this Court to the Trial Court in pursuance of the certain directions issued by a learned Judge after disposing of a criminal revision petition. 2. We have heard Mr.M.Ajmal Khan, learned Senior Counsel for the appellants, Mr.S.S.Sundar, learned counsel for the respondents 1 and 2 and Mr.V.R.Shanmuganathan, learned Special Government Pleader appearing for the third respondent. 3. A complaint in crime No.7 of 2011 came to be registered against the appellants herein, who are husband and wife respectively, for alleged offences under Section 13 (2) and 13(1)(e) of the Prevention of Corruption Act, 1988 alleging that the appellants amassed wealth disproportionate to the own sources of their income. After investigation, a charge sheet was filed in Special Case No.4 of 2012 against both the appellants. During the pendency of the said case, the Deputy Superintendent of Police, Vigilance and Anti Corruption filed an application in Crl.O.P.No.1 of 2012 on the file of the Principal District and Sessions Judge, Nagercoil, seeking attachment of the properties of the appellants. This petition was filed under Section 3 (i) of the Criminal Law (Amendment) Ordinances Act, 1944. An application in Crl.M.P.No.2745 of 2012 was also filed for interim attachment. The said application for interim attachment was ordered by the learned Principal District and Sessions Judge by an order dated 13.07.2012. 4. Aggrieved by the order of the Sessions Court granting interim attachment, the appellants filed a revision petition in Crl.R.C.No.445 of 2013 on the file of this Court. The said revision was disposed of by this Court by an order dated 10.07.2013, directing the Principal District and Sessions Judge to pass a reasoned order. 5. Thereafter, it appears that the first appellant's father who was arrayed as accused No.3, in the main criminal case, filed an application on 13.08.2013 before the trial Court under Section 205 of the Code of Criminal Procedure for dispensing with his personal appearance. But the said application was dismissed by the trial Court on 16.08.2013 on the ground that by an order dated 23.07.2013, this Court had directed the trial Court to serve summons on all the accused and to frame charges and to report back to the High Court within three weeks. 6. But the said application was dismissed by the trial Court on 16.08.2013 on the ground that by an order dated 23.07.2013, this Court had directed the trial Court to serve summons on all the accused and to frame charges and to report back to the High Court within three weeks. 6. Since the Criminal Revision Case No.445 of 2013, had already been disposed of on 10.07.2013 and also since the said revision was not listed for hearing before Court on 23.07.2013, the appellants made verifications. In the meantime, the trial Court issued a notice dated 30.07.2013 on the basis of the order passed by this Court on 23.07.2013, directing the trial Court to summon the accused and report the same to the High Court. Therefore, upon receipt of the said letter from the trial Court, the appellants made enquiries and found out that docket orders have been passed in the criminal revision petition after it was disposed on 10.07.2013. Aggrieved by those docket orders and the communication issued by the Registry to the trial Court on the basis of those docket orders, the appellants came up with two Writ Petitions in W.P. (MD)Nos.19823 and 16368 of 2013. Both these writ petitions were directed by the Chief Justice of this Court to be posted before the learned Judge who disposed of the criminal revision case and who had passed docket orders. The learned Judge after hearing both sides, dismissed the writ petitions by an order dated 07.01.2014. It is against the said order of the learned Judge dismissing their challenge to those orders that the appellants are before us. 7. Before taking up the issues arising for consideration in the writ appeals, it is necessary for us to have a look at the docket orders and the communication issued by the Registry to the trial Court on the basis of those orders. Therefore, they are now brought on record as follows:- i) The Criminal Revision Case in Crl.R.C.(MD)No.445 of 2013, challenging the interim order of attachment passed by the trial Court, was disposed of on 10.07.2013 with a direction to the trial Court to hear both sides and pass suitable orders within 10 days. ii) On the same day, namely 10.07.2013, a separate order was passed by the learned Judge, by way of a docket entry, in the same criminal revision case. ii) On the same day, namely 10.07.2013, a separate order was passed by the learned Judge, by way of a docket entry, in the same criminal revision case. The said docket order reads as follows: "The Registrar (Judicial) is directed to ascertain from the District and Sessions Judge, Nagercoil as to why in this case, charge has not been framed and reasons to be stated. How long the matter is pending. Copy of the notes papers, docket sheet, from February 2012, till date to be enclosed. Place the report before this Court on 11.07.2013 at 12 p.m Note:- Send this order by fax today itself 10.07.2013". iii) Immediately, the Registrar (Judicial) sent a fax message in C.O.Letter No.152 of 2013, dated 10.07.2013, communicating the order passed by way of docket entry. By the said communication, sent on 10.07.2013, the Registry directed the Principal District and Sessions Judge to send a report along with a xerox copy of notes papers, docket sheet etc., by 12 noon on 11.07.2013 by special messenger. iv) On 11.07.2013, the learned Judge passed another order on the docket sheet, in the same criminal revision case. It reads as follows: "The Registrar (Judicial) is directed to ascertain from the District and Sessions Judge, Nagercoil for the reason for not framing the charges in the main case i.e., Special Case No.4 of 2012 on the file of the Chief Judicial Magistrate Court cum Special Judge, Nagercoil, for the last one and half years and the docket sheet of the main case has to be forwarded and the connected xerox copies of papers should be placed before this Court. Note: Send this order through fax immediately 11.07.2013" v) The docket order passed on 11.07.2013 was also communicated by the Registrar (Judicial) under C.O. Letter No.154 of 2013, dated 11.07.2013 directing the Sessions Court to send a report along with the xerox copy of the note papers and the docket sheet. vi) Again on 23.07.2013, the learned Judge issued another order which reads as follows:- "The Registrar (Judicial) is directed to inform the Chief Judicial Magistrate concerned to direct the Vigilance Officer to serve summons to the left out accused and frame charges immediately and inform to this Court within three weeks. 23.07.2013" vii) The said order, dated 23.07.2013 was also communicated by the Registrar (Judicial) by C.O.Letter No.174 of 2013, dated 23.07.2013. 23.07.2013" vii) The said order, dated 23.07.2013 was also communicated by the Registrar (Judicial) by C.O.Letter No.174 of 2013, dated 23.07.2013. But in this letter dated 23.07.2013 sent by the Registrar (Judicial), a mistake had obviously crept in. It can be better appreciated only if the letter dated 23.07.2013 is extracted in entirety. The C.O.Letter No.174 of 2013, dated 23.07.2013 sent by the Registrar (Judicial) to the trial Court is extracted for easy appreciation of the issues arising for consideration. Hence, it is reproduced as follows:- "C.O. Letter No.174 of 213 dated 23.07.2013 From Thiru.S.Thangakani, B.Sc., B.L., Registrar (Judicial), Madurai Bench of Madras High Court, Madurai. To The Chief Judicial Magistrate, Nagercoil. Sir, Sub: Courts- Criminal-Crl.RC(MD)No.445 of 2013 on the file of the Madurai Bench of Madras High Court - praying the High Court to call for the records relating to the order passed in Crl.M.P.No.2745 of 2012 in Crl.O.P.No.1 of 2012 on the file of Principal District and Sessions Court, Nagercoil and set aside the same as illegal -Reg., Ref: High Court's Order dated 23.07.2013 made in Crl.R.C(MD)No.445 of 2013. As per the order of this Honourable Court under reference cited, I am directed to state that the Crl.R.C.No.445 of 213 came up for hearing on 23.07.2013 before this Court and this Court directed the Registrar (Judicial) to inform the Chief Judicial Magistrate, Nagercoil to direct the concerned Vigilance Officer to serve summons to the left out accused and frame charges immediately and inform this Court within three wees. Therefore, you are hereby directed to comply with the above direction and inform this Court within three weeks without fail. Registrar (Judicial)" 8. The communication dated 23.07.2013 sent by the Registrar (Judicial) was obviously wrong inasmuch as the criminal revision case in Crl.R.C.(MD)No.445 of 2013, did not come up for hearing on 23.07.2013. It had already been disposed of on 10.07.2013. But the letter conveyed a wrong message to the trial Court and the trial Court which had earlier adjourned the case to 23.08.2013, advanced the hearing to 05.08.2013 and directed summons to be served on the father of the first appellant. Thereafter, the first appellant's father moved an application under section 205 of Code of Criminal Procedure for dispensing with his personal appearance. Thereafter, the first appellant's father moved an application under section 205 of Code of Criminal Procedure for dispensing with his personal appearance. But the trial Court dismissed the application by an order dated 16.08.2013, predominantly on account of the strict instructions given by this Court on 23.07.2013 and earlier. This has actually compelled the appellants to file writ petitions questioning the correctness of the orders passed by way of docket entries and the communications issued by the Registrar (Judicial) to the trial Court. 9. Before proceeding further, we should point out that in normal circumstances, the orders passed in a Criminal Revision Case, whether by way of docket entries or otherwise cannot be questioned in a collateral proceeding or in a petition under Article 226. All the orders passed by the learned Judge on 10.07.2013, 11.07.2013 and 23.07.2013, despite having been passed after the disposal of the Criminal Revision Case, formed part of the records of the Criminal Revision Case. Therefore, they cannot be challenged in a writ petition. In an exceptional circumstance that arose in A.R.Antulay Vs.R.S.Nayak, AIR 1988 SC 1531 , the Supreme Court invoked the principle of autus curiae neminem gravabit and quashed all the proceedings, that were dealt with by a Special Judge appointed by the High Court, under orders of the Supreme Court, on the ground that they were completely vitiated. But the correctness of the said decision continues to be under debate. Therefore, we are of the view that the appellants herein could not have challenged, in a writ petition under Article 226 of the Constitution, the orders passed by a learned Judge in a Criminal Revision Case. 10. But without questioning the maintainability of the writ petition, they were posted before the same learned Judge who had passed orders by way of docket entries on the criminal revision. The learned Judge framed one issue for consideration in the writ petitions. It was as to whether the series of orders passed on 10.07.2013, 11.07.2013 and 23.07.2013 would tantamount to a correction of the judgment attracting Section 362 of the Code of Criminal Procedure and whether they would come within the purview of Section 327 which requires every proceeding in a criminal matter to be in open Court. It was as to whether the series of orders passed on 10.07.2013, 11.07.2013 and 23.07.2013 would tantamount to a correction of the judgment attracting Section 362 of the Code of Criminal Procedure and whether they would come within the purview of Section 327 which requires every proceeding in a criminal matter to be in open Court. After drawing inspiration from the decision of the Supreme Court in 'K' A Judicial Officer, In Re, (2001) 3 SCC 54 , where the Supreme Court directed the High Courts not to pass any adverse comments on subordinate Judicial Officers, the learned Judge dismissed the writ petitions holding that this Court has power to issue suitable administrative instructions under Article 227 of the Constitution and that a similar power is available under Sections 397 and 401 of the Code also. Therefore, the learned Judge held that the administrative orders would not come within the purview of Section 362 of the Code of Criminal Procedure, affecting the rights of the accused. Consequently, the learned Judge dismissed the writ petitions as being without merit. Hence, the present appeals. 11. In the facts and circumstances that we have narrated above, two questions arise for consideration. They are as follows: (i) Whether the directions given by the learned Judge on 10.07.2013, 11.07.2013 and 23.07.2013 would tantamount to an alteration or review of judgment in terms of Section 362 of Code of Criminal Procedure and (ii)Whether the directions issued by the learned Judge purportedly by way of administrative orders are sustainable in law or not. Question No.1 12. The first question revolves around Section 362 Code of Criminal Procedure. It reads as follows: "362. Court not to alter judgment:-Save as otherwise provided by this Code or by any other law for the time being force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error". 13. A plain reading of Section 362 would show that a Court is not entitled to alter or review an order, after it was signed. However, this provision is subject to any other provision in any other law, as could be seen from the opening words of the Section "save as otherwise by this Code or by any other law". 13. A plain reading of Section 362 would show that a Court is not entitled to alter or review an order, after it was signed. However, this provision is subject to any other provision in any other law, as could be seen from the opening words of the Section "save as otherwise by this Code or by any other law". Therefore, if the Code of Criminal Procedure or any other law, specifically empowers a Court to alter or review its own order or judgment, the same will not be hit by Section 362 of the Code. 14. Mr.M.Ajmal Khan, learned Senior Counsel for the appellants relies upon two decisions of the Supreme Court namely, (i) Hari Singh Mann Vs. Harbhajan Singh Bajwa and others (2001) 1 SCC 169 and (ii) Nazma Vs. Javed Alias Anjum, (2013) 1 SCC 376 . 15. In Hari Singh Mann, a petition under Section 482 of the Code was filed on the file of the High Court, seeking a direction to the Police Officers to register a case on the basis of the complaint lodged by the petitioner. A learned Judge of the High Court disposed of the Criminal Original Petition with a direction to the Superintendent of Police to look into the complaint and to register a case if any cognizable office is made out. Thereafter, the defacto complainant again filed a petition in the form of a Miscellaneous Petition. This Miscellaneous Petition was taken up by the same learned Judge and disposed of with a direction to the Senior Superintendent of Police not to take action on the basis of the earlier orders. This order was challenged on the ground that it amounted to a review of the earlier order. But the challenge was rejected by the High Court and the matter was taken to the Supreme Court. The Supreme Court held that there is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed in exercise of its appellate or revisional or original criminal jurisdiction and that the said power cannot be exercised with the aid or under the cloak of Section 482. The Supreme Court held that there is no provision in the Code of Criminal Procedure authorizing the High Court to review its judgment passed in exercise of its appellate or revisional or original criminal jurisdiction and that the said power cannot be exercised with the aid or under the cloak of Section 482. Pointing out that Section 362 mandates that no Court shall alter or review a judgment after it was signed, except to correct a clerical or arithmetical error, the Supreme Court held that after a matter is finally disposed of by a Court, the Court becomes functus officio in the absence of a specific statutory provision. Therefore, the Supreme Court set aside the order of the High Court by which its earlier order was altered. 16. Similarly, in Nazma, a Criminal Original Petition was filed on the file of the High Court of Allahabad questioning the First Information Report lodged by the wife against her husband and his family members. In the Criminal Original Petition, the wife was not made a party. The High Court disposed of the Criminal Original Petition directing the police not to arrest the family members of the husband, until the conclusion of the investigation or the submission of the report under Section 173 of the Code of Criminal Procedure. Since this Criminal Original Petition was filed only by the family members of the husband and the husband had not joined as a petitioner along with his family members, he later came up with a fresh petition in the form of Miscellaneous Petition seeking identical reliefs. In this Miscellaneous Petition also the wife was not made a party. The High Court disposed of the miscellaneous petition granting similar reliefs to the husband also. Thereafter, the Investigating Officer filed a report closing the investigation. But the Chief Judicial Magistrate took cognizance and issued summons. The husband challenged the order of the Chief Judicial Magistrate unsuccessfully in a revision petition. Thereafter, the husband filed objections before the Magistrate. Pending consideration of his objections, the husband moved another miscellaneous petition in the disposed of Criminal Original Petition. In the Miscellaneous Petition, the High Court granted another reprieve to the husband, by directing the police not to arrest him until the conclusion of the trial Court. This order was taken to the Supreme Court by the wife. Pending consideration of his objections, the husband moved another miscellaneous petition in the disposed of Criminal Original Petition. In the Miscellaneous Petition, the High Court granted another reprieve to the husband, by directing the police not to arrest him until the conclusion of the trial Court. This order was taken to the Supreme Court by the wife. Citing with approval, the decision in Hari Singh Mann, the Supreme Court allowed the appeal and held that once the Original Petition was disposed of, the High Court becomes functus officio and cannot entertain any review petition or modification except to correct clerical or arithmetical error. Therefore, it is contended by the learned Senior Counsel for the appellants that the orders under challenge were unsustainable and without jurisdiction. 17. We have carefully considered the above submissions. Though the case on hand, would not fall within the category of "review of judgment", it may fall under the category of "alteration of judgment". Any addition, deletion or modification of the contents of a judgment would certainly tantamount to an alteration of the judgment. Every word, every letter and every punctuation mark, in a judgment is of significance. A single fault on the phonetics, committed by King Pandia, resulted in the execution of Kovalan in Silapathikaram. The expression 'alteration' in relation to instruments, is defined in The Law Lexicon of P.Ramanatha Aiyar as follows: "Alteration (of an instrument) is an act done upon an instrument by which its meaning or language is changed. If what is written upon, or erased from, an instrument has no tendency to produce this result, or to mislead any person, it is not an alteration. "Technically, it is a change in an instrument by a party, thereto, or one entitled thereunder, or one in privity with such person, after the instrument has been signed or fully executed, without the consent of the other party to it, by an erasure, interlineation, or substitution of material matter affecting the identity of the instrument or contract, or the rights and obligations of the parties thereunder. The writing of words calculated to change the legal effect of the instrument is, to all intents as fully an alteration as an erasure and substitution." 18. An alteration may be a material alteration or an immaterial alteration or insignificant alteration. But nevertheless, an alteration in relation to a judgment, is always significant. The writing of words calculated to change the legal effect of the instrument is, to all intents as fully an alteration as an erasure and substitution." 18. An alteration may be a material alteration or an immaterial alteration or insignificant alteration. But nevertheless, an alteration in relation to a judgment, is always significant. This is why the law recognizes suo motu power of review only in relation to insignificant and immaterial alterations, such as correction of a clerical or arithmetical error. The very fact that the insignificant and immaterial changes are expressly allowed by law to be carried out would show that the general rule is that every material or immaterial change, tantamount to alteration of a judgment. Therefore, even an addition to a judgment would tantamount to alteration. Hence, we are of the considered view that the orders passed on 10.07.2013, 11.07.2013 and 23.07.2013 are hit by Section 362 Cr.P.C. Question No.2 19. The next question that arises for consideration is as to whether the directions issued by the learned Judge purportedly by way of administrative orders, are sustainable in law or not. 20. It is seen from the order of the learned Judge which is impugned in these appeals that the learned Judge has relied upon the revisional jurisdiction of this Court under Articles 226 and 227 of the Constitution for sustaining the directions issued by him. This is in view of the fact that the jurisdiction of this Court under Articles 226 and 227 are both administrative and judicial. Therefore, for dismissing the writ petitions questioning the correctness of the directions issued by him, the learned Judge has relied upon the jurisdiction vested under articles 226 and 227. 21. But in the case on hand, the learned Judge was exercising jurisdiction under Section 397 read with 401 of Code of Criminal Procedure. It is no doubt true that there is not a great deal of difference between these two revisional jurisdictions, both of which are administrative as well as judicial. 22. In Janata Dal vs H.S. Chowdhary And Ors, AIR 1993 SC 892 , the Supreme Court pointed that under Section 397 of the Code, the High Court possesses the general power of superintendence over the actions of the Courts subordinate to it. The Court indicated that when the power is exercised on the administrative side, it is known as power of superintendence. The Court indicated that when the power is exercised on the administrative side, it is known as power of superintendence. When exercised on the judicial side, it is termed as power of revision. The object of revisional jurisdiction under Section 401 is to confer power upon superior criminal Courts, which is a kind of paternal or supervisory jurisdiction in order to correct miscarriage of justice arising from misconception of law, irregularity of procedure, neglect of proper precaution or apparent harshness of treatment. 23. But, the question of passing a judicial order under these provisions in open Court and later passing an administrative order in the Chambers, may not be authorised by law. In W.B.Regulatory Commission Vs. C.E.S.C Limited, (2012) 8 SCC 715, the Supreme Court pointed out that while exercising a power of appeal under a particular statute, the High Court cannot invoke the constitutional power under Articles 226 or 227. 24. The Supreme Court found fault with even the Administrative Judge of a specific District from passing such orders, while making inspection of the Courts coming under his administrative control. In Jasbir Singh Vs. State of Punjab, (2006) 8 SCC 294 , a person was arrested and remanded to judicial custody under the provisions of the Prevention of Corruption Act. His first bail application was rejected. The second bail application filed by him was fixed for hearing by the Sessions Judge on 05.05.2003. In the meanwhile, on 29.04.2003, the Administrative Judge of the High Court came for annual inspection to the District and Sessions Court concerned. He visited the court as part of the inspection programme. At that time, the detenu moved an application for bail. Immediately, the Administrative Judge passed an order directing the Sessions Judge to look into the application of the appellant and enlarge him on bail as his trial was likely to take some time. Pursuant to the said order, the accused was released on bail. Thereafter, a complaint was made to the Chief Justice of the High Court alleging mala fides on the part of the Sessions Judge in granting bail. The Chief Justice of the High Court called for the entire proceedings before the Sessions Court and directed the matter to be placed before the very same Administrative Judge on the judicial side. The defacto complainant sought cancellation of the bail and the administrative Judge passed a judicial order, cancelling the bail. The Chief Justice of the High Court called for the entire proceedings before the Sessions Court and directed the matter to be placed before the very same Administrative Judge on the judicial side. The defacto complainant sought cancellation of the bail and the administrative Judge passed a judicial order, cancelling the bail. When the accused took the matter on appeal to the Supreme Court, the Supreme Court held as follows: "The power of superintendence over all the subordinate courts and the tribunal is given to the High Court under Article 227 of the Constitution. The said power is both on administrative and judicial nature and it could be exercised suo motu also. However, such power of superintendence does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. While invoking the provisions of Article 227, the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. It cannot intervene, the judicial functions of the lower judiciary. The independence of subordinate courts in the discharge of their functions is of paramount importance, just as an independence of the superior courts in the discharge of their judicial functions is." 25. The Supreme Court also pointed out that in respect of Article 235 also the power of control to be exercised thereunder do not extend to interfering with the judicial functions of the subordinate courts. Insofar as the power of the Administrative Judge is concerned, the Supreme Court pointed that in the course of inspection, the High Court is required only to examine whether the Courts are functioning within the norms laid down by the High Court or not. 26. Even while disposing of the main Criminal Revision Case by way of a judicial order, it was open to the learned Judge to direct the trial Court to complete the enquiry and decide the matter within a particular time frame. But such a direction should have formed part of the main order passed in the open Court in the presence of the counsel on both sides. But such a direction should have formed part of the main order passed in the open Court in the presence of the counsel on both sides. Directions issued on the administrative side in such a manner, that is likely to instill any psychosis, fear or otherwise, on the part of the trial Judge or administrative directions that may give room for an impression that the High Court was monitoring the progress of the case, cannot be issued behind the back of the parties. This is on account of the fact that the bedrock of administration of justice as it stands today, is based upon the premise that justice should not only be done but should also appear to have been done. Therefore, we are of view of that the directions issued on 10.07.2013, 11.07.2013 and 23.07.2013, cannot be sustained in law. Though the learned Judge has observed in the order impugned in these appeals that those directions were issued in open Court only in the presence of the learned Senior Counsel for the appellants, we do not think that at least the directions issued on 11.07.2013, 23.07.2013 could have been passed in the presence of the learned Senior Counsel for the appellants. Once it is claimed that these orders have been passed by way of administrative directions, then it follows that they could not have been passed in the presence of the counsel. 27. In view of the above, the writ appeals are allowed, the impugned order of the learned Judge is set aside and the writ petitions of the appellants are allowed. No costs. Consequently, connected miscellaneous petitions are closed.