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2019 DIGILAW 354 (UTT)

MADHVI GOSWAMI v. STATE OF UTTARAKHAND

2019-05-28

RAVINDRA MAITHANI

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JUDGMENT : Hon'ble Ravindra Maithani, J. Challenge in the instant petition is cognizance order dated 10.08.2017, passed in Criminal Case No.1029 of 2014, Dr. Sudarshan vs. Sanjay Goswami, by the Court of learned Additional Chief Judicial Magistrate/1st Additional Civil Judge (S.D.) Haridwar, District Haridwar (for short ‘the case') as well as the order dated 10.09.2018 passed in Criminal Revision No.544 of 2017, Sanjay Goswami and another vs. State, passed by the court of learned II Additional Session Judge, Haridwar District Haridwar (for short ‘the revision'). 2. The facts, necessary for disposal, briefly stated are that respondent no.2 filed an application under Section 156 Sub Section 3 of the Code of Criminal Procedure, 1973 (for short ‘the Code'), which was initially rejected on 03.09.2012 by the Judge ‘A'. The order rejecting application under Section 156(3) of the Code dated 03.09.2012 was challenged in revision, which was allowed on 23.02.2013 and the matter was remanded for fresh hearing. The case was again taken up by the same Judge ‘A' and the application under section 156(3) of the Code was treated as a complaint vide order dated 20.03.2013. After inquiry this complaint was dismissed vide order dated 16.07.2014, passed in the case. This order dated 16.07.2014 was challenged in Criminal Revision No.416 of 2014. Vide order dated 22.11.2016, while allowing the revision, the matter was again remanded for hearing afresh on cognizance order. It is interesting to note here that this order in revision was passed by the same Judge ‘A', who had earlier at one stage rejected the application under Section 156(3) of the Code on 03.09.2012 and subsequently vide order dated 20.03.2013 treated the application under Section 156(3) of the Code as a complaint. Pursuant to the order dated 22.11.2016, the case was again taken up and vide order dated 10.08.2017 cognizance was taken and the petitioners have been summoned to answer the accusation under Sections 323, 504 and 506 IPC. The order dated 22.11.2016 passed in the case was again challenged in the revision, which was rejected on 10.09.2018. Aggrieved, the instant petition. 3. Respondent no.2 at one stage appeared but at the stage of final argument today none is present on behalf of respondent no.2 though counter affidavit has been filed by respondent no.2. 4. Heard learned counsel for the parties. 5. Aggrieved, the instant petition. 3. Respondent no.2 at one stage appeared but at the stage of final argument today none is present on behalf of respondent no.2 though counter affidavit has been filed by respondent no.2. 4. Heard learned counsel for the parties. 5. Learned counsel for the petitioners made two fold arguments, namely, first on the factual aspects that no case as such is made out and second on the basis of legality or propriety of order dated 22.11.2016 passed by the Judge ‘A'. 6. Learned counsel for the petitioners would argue that at initial stage the Judge ‘A' had rejected the application under Section 156(3) of the Code and on another stage on 20.03.2013 treated the application as a complaint but after promotion, the officer again heard the matter in revision against the order dismissing the complaint dated 16.07.2014. On 22.11.2016, the Judge ‘A' again remanded the matter and pursuant to it, summoning order has been passed. It is argued that Judge ‘A' ought not to have heard the matter at revisional stage, because at initial stage, twice the Judge ‘A' had dealt with the matter and more particularly at one stage rejected the application under Section 156(3). 7. In support of his Contention learned counsel for the petitioners placed reliance on the principle of law as has been laid down in the case of Kuppusamy Naicker vs. Lakshmana Gounder and another AIR 1989 MADRAS 270. In a situation when an order passed by a Judge was heard by the same Judge at the appellate stage, in the case of Kuppusamy Naicker, it was held that:- “2.......................................................................................... ……………………………………………………………...................................…. The course so adopted is not only opposed to all known and well accepted and established norms and canons of judicial procedure, but is bound to undermine the confidence reposed by the litigants in the justice delivery system generally and Courts of Appeal in particular....................................................................................... ...................................................................................................." 8. On behalf of State, learned counsel would submit that orders dated 20.03.2013 and 22.11.2016, have not been challenged, therefore, no interference is warranted. 9. One of the principles of the justice administrative system is that justice should not only be done but it should also appear to have been done. Undoubtedly, the Judge ‘A' has dealt with the application under Section 156(3) of the Code, filed by respondent no.2 as a Magistrate and rejected it once on 03.09.2012. 9. One of the principles of the justice administrative system is that justice should not only be done but it should also appear to have been done. Undoubtedly, the Judge ‘A' has dealt with the application under Section 156(3) of the Code, filed by respondent no.2 as a Magistrate and rejected it once on 03.09.2012. Subsequently, when after revision, the matter was received again the Judge ‘A' treated the application as complaint on 20.03.2013. When the complaint was dismissed, the same Judge ‘A' vide order dated 22.11.2016 while setting aside the order dated 16.07.2014, remanded the matter. 10. The Judge ‘A' had dealt with the matter as a trial Judge as well as at the revisional stage. The summoning order in the instant case has been passed pursuant to the order dated 22.11.2016. The fact remains that at some stage the Judge ‘A' has dealt with the case. Some rules of conduct in the administration of justice are unwritten. If a Judge hears some matters at the trial stage, it is always advisable that the same Judge should refrain from hearing the matter at the appellate stage. It may not have apparently any impact on the decision, but it may appear to someone that the person has dealt with the case at both the levels. It should be avoided. In the instant case as stated Judge ‘A' has dealt with case at both the levels. Therefore, the summoning order dated 10.08.2017 has been passed by an order, which requires interference. It makes no difference whether it is challenged, in writing, in the petition or not. Arguments have been made to assail it. Therefore, this Court is of the view that, in fact, the order dated 22.11.2016 passed in Criminal Revision No.416 of 2014 by the court of learned Vth Additional Session Judge, Haridwar need to be set aside and the Revision No.416 of 2014, needs to be heard, afresh by some Judge other than the Judge ‘A' and consequent to it, summoning order dated 10.08.2017 and order passed in the Revision dated 10.09.2018 also deserve to be set aside. 11. Order dated 22.11.2016 passed in Criminal Revision No.416 of 2014, Dr. Sudarshan Goswami vs. State of Uttarakhand and others by the Court of Vth Additional Session Judge, Haridwar is hereby set aside. Consequently summoning order dated 10.08.2017 and order dated 10.09.2018 are quashed. 11. Order dated 22.11.2016 passed in Criminal Revision No.416 of 2014, Dr. Sudarshan Goswami vs. State of Uttarakhand and others by the Court of Vth Additional Session Judge, Haridwar is hereby set aside. Consequently summoning order dated 10.08.2017 and order dated 10.09.2018 are quashed. The Criminal Revision No.416 of 2014 shall be heard afresh by some Judge other than Judge ‘A', who had once passed order on 22.11.2016. 12. The petition stands disposed of accordingly.