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2023 DIGILAW 847 (GUJ)

Mukesh Gulabbhai Kapadiya v. State Of Gujarat

2023-07-13

SANDEEP N.BHATT

body2023
ORDER : 1. All these applications are filed under Section 482 of the Code of Criminal Procedure, 1973 (`the Code’ for short) for holding and declaring that the observations made against the applicant herein (i) in the impugned orders dated 3.10.2019 passed below Exh.435 and dated 24.10.2019 passed below Exh.438 in Special CBI Case No.16 of 2005 (ii) in the impugned orders dated 3.10.2019 passed below Exh.282 and dated 24.10.2019 below Exh. 284 in Special CBI Case No.17 of 2005; (iii) in the impugned orders dated 3.10.2019 passed below Exh.356 and dated 24.10.2019 below Exh. 358 in Special CBI Case No.18 of 2005; and (iv) in the impugned orders dated 3.10.2019 passed below Exh.479 and dated 24.10.2019 below Exh.483 in Special CBI Case No.19 of 2005, as absolutely unwarranted, bad, illegal and against the evidence on record and to expunge the same. 2. As the common question of facts and law are involved in all these applications, at the request of learned advocates for the parties, they are heard together and disposed of by this common oral order. 3. Rule returnable forthwith. Respective learned advocates parties waive service of rule for the respective parties. 4. For the sake of convenience, the facts of Criminal Miscellaneous Application No.290 of 2020 are considered, which are as under: 4. That the applicant has been appointed as Special Public Prosecutor on behalf of the CBI vide order dated 17.11.2018 and thereafter the applicant has proceeded with the matter allotted by conducting with best of his effort and skills. That, as per the prosecution case, one Mr.D.V.Yardi, Manager (Vigilance), The New India Assurance Company Limited, having Head Office, Mumbai and on the basis of the same, the case was registered before CBI, Gandhinagar branch; in the said complaint, it was alleged that one Shri S.A.Parma, the then Senior Divisional Manager of NIACL, during the period of 1999-2001 entered into criminal conspiracy with private persons and surveyors for cheating the insurance company by abusing their official position; that because of the said criminal conspiracy, wrongful loss was caused to the insurance company to the tune of Rs.54 lakhs. 5. 5. It is averred further that thereafter a detailed investigation has been carried out by the respondent no.2 and several accused were arrested in all the six cases and Special CBI cases were registered before the concerned Court; that out of the six cases, one case was disposed of against which criminal appeal is preferred, which was also disposed of against which revision application is preferred before this Court, which is pending; that the other remaining cases are yet pending before the Special CBI Court, Ahmedabad; that the said cases are at the stage of examination of witnesses on behalf of the applicant; that it was felt that the entire set of record would be available in the present case, but, after complete scrutiny it was found that all such necessary documents were only filed in the case which was already disposed of; that the applicant applied for the certified copies before the concerned registry for obtaining all such documents produced in the said case and file separately in the pending cases before recording the oral testimony of the investigating officer; therefore, the applicant has preferred an adjournment application dated 3.10.2019 before the learned trial Court, which was granted, however, the learned trial Court has made certain stinging derogatory remarks against the applicant who is Special Public Prosecutor appointed; thereafter, another adjournment application was preferred on 24.10.2019 which was rejected and certain unnecessary derogatory remarks and unwarranted observations against the applicant were made. Hence, these applications are filed for the prayers referred to hereinabove. 6. Heard learned advocates for the parties. 6.1 Learned advocate Mr.Raju for the applicant submitted that the present applications are filed by the applicant who was rendering his service as Special Public Prosecutor for CBI against whom the learned trial Court has observed in the impugned orders that “this is very unfortunate that the learned Special PP is very careless towards the functioning of his duty in this serious fraud case. He is doing his job very casually.” He has submitted that these remarks are unnecessary and highly unwarranted and without giving any opportunity of hearing or opportunity of giving any explanation regarding the same to the special PP and therefore, they are required to be expunged or deleted from the impugned orders which are passed by the learned trial Court. He is doing his job very casually.” He has submitted that these remarks are unnecessary and highly unwarranted and without giving any opportunity of hearing or opportunity of giving any explanation regarding the same to the special PP and therefore, they are required to be expunged or deleted from the impugned orders which are passed by the learned trial Court. He has drawn my attention towards the orders passed in the respective matters, more particularly, the the observations in paragraphs 3 and 4 of the order passed in each matter. 6.2 He has submitted that applicant has, in fact, applied for the certified copies but he could not get the same and therefore he has sought time before the concerned Court, but the learned trial Court has completely disregarded the effort made by the applicant to obtain the certified copies and passed remarks causing harm to the professional integrity of the applicant. 6.3 He has further submitted that otherwise also, it is not the duty of the applicant to maintain the record of the Court or even comes within the purview of his duty as public servant but it is the duty of the concerned registry and therefore the applicant cannot be saddled with any responsibility to trace out or find out the original documents or one can only be made liable when the documents are in his possession but the learned Judge failed to appreciate the said fact and has passed derogatory remarks against the applicant. He has further submitted that the applicant has already made the application for certified copies of the documents on 11.10.2019 and the concerned registry has made a report stating the documents could not be found out which was even produced by the applicant before the learned court below. Even then, the learned Judge has arrived at the conclusion that the applicant has not made any effort to obtain such document, which is absolutely wrong and contrary to the record of the said case 6.4 He has further submitted that the learned trial Judge has not considered that it is now well settled position of law that Public Prosecutors are Officers of the Court and therefore, no such bald allegations can be made against the Public Prosecutors without any valid reason disregarding all the sincere efforts to get the certified copies of the documents produced in the case which was disposed of. However, the record is not available with the Court and thus rather than taking action against the concerned registry who is to be actually required to be blamed for the same, learned special Judge has exceeded his jurisdiction, for the reasons best known to him, and passed such derogatory remarks against the applicant who has all along conducted the cases with utmost sincerity and honesty. He has further submitted that the learned special Judge has also failed to appreciate that the readiness and willingness of the applicant to examine the Investigating Officer prior to production of such certified copies of the documents, provided his rights are kept open so as to safeguard the interest of the applicant herein. 6.5 He has submitted that the order passed by the learned trial Court is without jurisdiction and also not in accordance with the settled provisions of law and therefore, prayed to allow these applications. 6.6 In support of his submissions, learned advocate for the applicant has relied on the following judgments: (1) Noratanmal Chouraria V/s M.R.Murli, reported in AIR 2004 SC 2440 . (2) S.K.Viswambarnam V/s F.Koyakunju reported in 1987(2) SCC 109 (3) Anjani K Verma V/s State of Bihar, reported in 2004(11) SCC 188 (4) A.M.Mathur V/s Pramod Kumar Gupta and Others, reported in (1990)2 SCC 533 (5) Neeraj Garg V/s Sarita Rani and Others reported in (2021) 9 SCC 92 . 7. Per contra, learned APP Mr.Jayswal has submitted that in view of the facts and circumstances of the present case and considering the submission made by the learned advocate for the applicant, this Court may pass appropriate order in the interest of justice. 7.1 Learned advocate Mr.Kodekar for respondent no.2 has submitted that essentially the grievance is made against the remarks passed against the Special Public Prosecutor by the learned trial Judge and that thereafter the applicant is not continued on the post of Special Public Prosecutor by the CBI and considering the totality of the facts and circumstances of this Court may pass appropriate order. 7.2 Learned advocate Ms.Patel for respondent nos.3, 4 and 5 has submitted that the role of respondent nos.3, 4 and 5 is very limited as they are the Registries of respective Courts and the applicant has filed the present applications for expunging/deleting the remarks passed against him the Judicial Officer in the impugned order. 7.2 Learned advocate Ms.Patel for respondent nos.3, 4 and 5 has submitted that the role of respondent nos.3, 4 and 5 is very limited as they are the Registries of respective Courts and the applicant has filed the present applications for expunging/deleting the remarks passed against him the Judicial Officer in the impugned order. She submitted that there is no requirement, as such, to implead the present respondent no.3 to 5 as party in these applications, however, this Court may consider the submission made at the bar and may pass appropriate order in the interest of society. 8. I have considered the rival submissions made at the bar, perused the impugned orders passed in the respective applications by the learned trial Court and also considered the material available on the record. 9. It prima facie, transpires that the impugned orders are passed by the learned trial Court as some copies of the documents which are relied by the prosecution and which are required to be produced on the record are not produced. However, on perusal of the material on record, it transpires that the learned Special Public Prosecutor has indicated the reason for the same that though he has already applied for the copies, as such documents are not found by the registry at the relevant point of time and therefore certified copies are not produced. 10. Further, it is also necessary to consider the contention raised by the present applicant that he was appointed as Special Public Prosecutor very recently, when the incident has occurred and prior to that, some other Prosecutor was incharge of the matters. The applicant herein, after he was given the charge of the matters in question, had made necessary attempts to obtain certified copies, and therefore the entire blame made on the Public Prosecutor-applicant herein is prima facie found illogical and irrational. 11. From the material on record, it also seems that the observation which is made against the Special Public Prosecutor, who is an Officer of the Court, are highly unwarranted and not required to be allowed to retain on the record, as such observations are made without giving proper opportunity of explanation by giving any notice or any opportunity of hearing. From the material on record, it also seems that the observation which is made against the Special Public Prosecutor, who is an Officer of the Court, are highly unwarranted and not required to be allowed to retain on the record, as such observations are made without giving proper opportunity of explanation by giving any notice or any opportunity of hearing. The only reason that the Special Public Prosecutor could not produce on record the documents on which the prosecution is relying its case, is not sufficient to draw inference against the said officer and make such undesirable observation which affects his integrity, honesty and competency. Further, it has also come on record that applicant was made incharge of the cases very recent to the passing of the order and prior to that, some other prosecutor was incharge. In view of this also, it was not appropriate to pass such remarks against the applicant. 12. In this background, if the judgments relied on by learned advocate for the applicant are seen, they are as under: (1) In the case of Noratanmal Chouraria (supra), it is held as under: “That Section-35 of the Advocates Act, 1961 envisages the Professional or other misconduct of advocate. It is respectfully submitted that misconduct has not been defined in the Advocates Act, 1961. Misconduct, inter alia, envisages breach of discipline, although it would not be possible to lay down exhaustively as to would constitute conduct and indiscipline, which, however, is wide enough to include wrongful omission or commission whether done or omitted to be done intentionally or unintentionally. It means “Improper behaviour intentional wrong doing or deliberate violation of a rule of standard of behaviour.” Misconduct is said to be a transgression of some established and definite rule of action, where no discretion is left except what necessity may demand, it is a violation of definite law.” (2) in the case of S.K.Viswambarnam (supra), it is held as under: “If there is one principle of cardinal importance in the administration of justice, it is this the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalizations defeat the very purpose for which they are made. It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (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. It has also been recognized that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve.” (3) In the case of Anjani K Verma (supra), the Hon’ble Apex Court has reiterated the identical principles regarding the consideration of evidence produced by the applicant before the learned Judge which he failed to consider under his judicial function and passed unmerited remarks about the applicant (4) In the case of Neeraj Garg (supra), it is held in paragraphs 8, 16, 17 and 18, which read as under: “8. The Appellant contends that the above referred comments in the judicial orders of the High Court against the Counsel's conduct were not needed for adjudication of the matters under consideration. In any case, the observations could not have been recorded without putting the counsel on notice about the intention of the Court. It is also submitted that by virtue of the remarks recorded against the Appellant, his hard earned reputation has been tarnished. To project that such remarks were unmerited, Mr. Rohatgi points out that the Appellant, with an otherwise unblemished professional record, had no occasion to suffer such adverse remarks from any other judge of the High Court. Since the concerned Presiding Judge, before his elevation on 19.05.2017 to the Bench, was a member of the same Bar as the Appellant and both were rival counsel in several contested matters, Mr. Rohatgi submits that the comments may have emanated from personal prejudice and may not be otherwise warranted. Since the concerned Presiding Judge, before his elevation on 19.05.2017 to the Bench, was a member of the same Bar as the Appellant and both were rival counsel in several contested matters, Mr. Rohatgi submits that the comments may have emanated from personal prejudice and may not be otherwise warranted. Accordingly, it is argued that the Appellant should not be made to suffer adverse comments on his conduct as a lawyer only because the concerned Judge may not appreciate the efforts made by the Counsel, on behalf of his client. 16. Having perused the offending comments recorded in the High Court judgments, we feel that those could have been avoided as they were unnecessary for deciding the disputes. Moreover, they appear to be based on the personal perception of the learned Judge. It is also apparent that the learned Judge did not, before recording the adverse comments, give any opportunity to the Appellant to put forth his explanation. The remarks so recorded have cast aspersion on the professional integrity of the appellant. Such condemnation of the Counsel, without giving him an opportunity of being heard would be a negation of the principles of audi alteram partem. The requisite degree of restraint and sobriety expected in such situations is also found to be missing in the offending comments. 17. The tenor of the remarks recorded against the appellant will not only demean him amongst his professional colleagues but may also adversely impact his professional career. If the comments remain unexpunged in the court judgments, it will be a cross that the Appellant will have to bear, all his life. To allow him to suffer thus, would in our view be prejudicial and unjust. 18. In view of the forgoing, we are of the considered opinion that the offending remarks recorded by the learned judge against the appellant should not have been recorded in the manner it was done. The appellant whose professional conduct was questioned, was not provided any opportunity to explain his conduct or defend himself. The comments were also unnecessary for the decision of the Court. It is accordingly held that the offending remarks should be recalled to avoid any future harm to the appellant's reputation or his work as a member of the Bar. We therefore order expunction of the extracted remarks in paragraphs 4, 5, 6, and 7 of this judgment. The comments were also unnecessary for the decision of the Court. It is accordingly held that the offending remarks should be recalled to avoid any future harm to the appellant's reputation or his work as a member of the Bar. We therefore order expunction of the extracted remarks in paragraphs 4, 5, 6, and 7 of this judgment. The appeals are accordingly disposed of with this order.” 13. In the case of A.M.Mathur (supra), it is held in paragraphs 7 and 8 as under: “7. From the foregoing order it will be seen that the learned Judge seems to have formed an opinion that the appellant did not act honestly and bona fide in briefing the then Chief Minister Mr. Arjun Singh and if he had acted bona fide and in honest manner, the fraud on the Court would have been avoided and the Chief Minister would not have given a misleading press statement. He has also remarked that the appellant did not act befitting with the status of the high office of the Advocate General and he did not have the courage to face the situation in the Court. Such are his conclusions or surmises in the review petition which was not disposed of on the merits, but dismissed for want of jurisdiction. 8. The appellant's complaint before us is that he had no opportunity to meet the allegations in the review petition, much less as against averment in the subsequent application dated 25 January 1989. He made it clear to the High Court on 6 October 1988 and also on 29 October 1988 that he entered appearance pursuance to service of a copy of the review petition as per the High Court rules, on the Advocate General's office. He has not entered appearance as such on behalf of the State or other respondents, He has, further, made it clear that there was no ground for review and it deserved to be dismissed and so he did not wish to enter appearance at that stage before the admission of the review petition. The appellant appears to be correct in these statements and they are found recorded in the Court proceedings dated 6 October 1988.” 14. The appellant appears to be correct in these statements and they are found recorded in the Court proceedings dated 6 October 1988.” 14. In view of the above, I am of the considered opinion that the impugned orders passed by the learned Special Judge are also found perverse, illegal and against settled position of law and this is a fit case where this Court should exercise the inherent powers vested under Section 482 of the Code to prevent abuse of process of law and gross illegality. 15. Resultantly, these applications are allowed. The observations made against the applicant herein (i) in the impugned orders dated 3.10.2019 passed below Exh.435 and dated 24.10.2019 passed below Exh.438 in Special CBI Case No.16 of 2005 (ii) in the impugned orders dated 3.10.2019 passed below Exh.282 and dated 24.10.2019 below Exh. 284 in Special CBI Case No.17 of 2005; (iii) in the impugned orders dated 3.10.2019 passed below Exh.356 and dated 24.10.2019 below Exh. 358 in Special CBI Case No.18 of 2005; and (iv) in the impugned orders dated 3.10.2019 passed below Exh.479 and dated 24.10.2019 below Exh.483 in Special CBI Case No.19 of 2005, are absolutely unwarranted, bad, illegal and against the evidence on record and are hereby expunged and thus deleted from the impugned orders. Rule is made absolute. Direct service is permitted.