of Gujarat Vs. Turabali Gulamhussain Hirani
& Anr  Insc 1002 (4 October 2007)
Mathur & Markandey Katju
APPEAL NO. 1338 OF 2007 (Arising out of Special Leave Petition (Crl) No. 2252
of 2007 MARKANDEY KATJU, J.
This appeal has been filed against the impugned interim order dated 11.4.2007
of the Gujarat High Court in Criminal Miscellaneous Application No. 13747/2005
in Criminal Appeal No. 728/2005.
perusal of the impugned interim order shows that a Criminal Appeal was filed
with a delay of 25 days. The learned Judge of the Gujarat High Court (Hon'ble
R.S. Garg, J.) on the application for condonation of delay in filing the appeal
passed the impugned order directing the Chief Secretary and Law Secretary of the
Gujarat government to be personally present before him on 20.4.2007 "so
that the Court may have a direct dialogue with them that what effective steps
they are taking to provide sufficient staff to the office of the Government
Pleader/Public Prosecutor and to avoid delay at every stage". It may be
mentioned that the reason given for the delay of 25 days was the shortage of
staff including stenographers in the office of the Public Prosecutor.
our opinion, the learned Judge of Gujarat High Court was totally unjustified in
summoning the Chief Secretary and Law Secretary merely because there was a
delay of 25 days in filing the appeal. It may be mentioned that the same Hon'ble
Judge (Hon. R.S Garg, J.) in several other cases also summoned the Chief Secretary
to appear before him personally.
in Special Civil Application Nos. 13969/1993 and 6896/1993 titled Gujarat
Hotels Ltd. & others vs. State of Gujarat & others dated 18.1.2007 he summoned the Chief Secretary to appear
before him personally. That case related to an incentive scheme of the State
government for attracting new entrepreneurs.
another case, Special Civil Application No. 8209/1998 titled Gujarat Revenue
Tribunal vs. A.K. Chakraborty, IAS, the Bench of Hon'ble R.S. Garg and Hon'ble
M.R. Shah, JJ. by an order dated 28.2.2007 ordered the Chief Secretary to be
personally present on 6.3.2007 "so that the Court may discuss the niceties
with him and may ask him certain questions hovering in the mind of the
large number of cases have come up before this Court where we find that learned
Judges of various High Courts have been summoning the Chief Secretary,
Secretaries to the government (Central and State), Director Generals of Police,
Director, CBI or BSF or other senior officials of the government.
There is no doubt that the High Court has power to summon these officials, but
in our opinion that should be done in very rare and exceptional cases when
there are compelling circumstances to do so. Such summoning orders should not
be passed lightly or as a routine or at the drop of a hat.
Judges should have modesty and humility. They should realize that summoning a
senior official, except in some very rare and exceptional situation, and that
too for compelling reasons, is counter productive and may also involve heavy
expenses and valuable time of the official concerned.
judiciary must have respect for the executive and the legislature.
should realize that officials like the Chief Secretary, Secretary to the government,
Commissioners, District Magistrates, senior police officials etc. are extremely
busy persons who are often working from morning till night. No doubt, the
ministers lay down the policy, but the actual implementation of the policy and
day to day running of the government has to be done by the bureaucrats, and
hence the bureaucrats are often working round the clock. If they are summoned
by the Court they will, of course, appear before the Court, but then a lot of
public money and time may be unnecessarily wasted. Sometimes High Court Judges
summon high officials in far off places like Director, CBI or Home Secretary to
the Government of India not realizing that it entails heavy expenditure like
arranging of a BSF aircraft, coupled with public money and valuable time which
would have been otherwise spent on public welfare.
Hence, frequent, casual and lackadaisical summoning of high officials by the
Court cannot be appreciated. We are constrained to make these observations
because we are coming across a large number of cases where such orders
summoning of high officials are being passed by the High Courts and often it is
nothing but for the ego satisfaction of the learned Judge.
do not mean to say that in no circumstances and on no occasion should an
official be summoned by the Court. In some extreme and compelling situation
that may be done, but on such occasions also the senior official must be given
proper respect by the Court and he should not be humiliated. Such senior
officials need not be made to stand all the time when the hearing is going on,
and they can be offered a chair by the Court to sit. They need to stand only
when answering or making a statement in the Court. The senior officials too
have their self-respect, and if the Court gives them respect they in turn will
respect the Court. Respect begets respect.
sometimes happens that a senior official may not even know about the order of
the High Court. For example, if the High Court stays the order of the Collector
of suspension of a class-III or class IV employee in a government department,
and certified copy of that order is left with the Clerk in the office of the
Collector, it often happens that the Collector is not even aware of the order
as he has gone on tour and he may come to know about it only after a few days.
In the meantime a contempt of court notice is issued against him by the Court
summoning him to be personally present in Court. In our opinion, this should
not be readily done, because there is no reason why the Collector would not
obey the order of the High Court. In such circumstances, the Court should only
request the government counsel to inform the concerned Collector about the
earlier order of the Court which may not have been brought to the notice of the
Collector concerned, and the High Court can again list the case after a week or
two. Almost invariably it will be found that as soon as the Collector comes to
know about the stay order of the High Court, he orders compliance of it.
the present case, we find no occasion or reason for the learned Judge to summon
the Chief Secretary or the Law Secretary by the impugned order. If the learned
Judge was concerned about the lack of enough Stenographers in the office of the
Public Prosecutor he could have called the Advocate General or Govt. Advocate
to his chamber and have asked him to convey the Court's displeasure to the
government, but where was the need to summon the Chief Secretary or Law
Secretary? Hence, we set aside the impugned interim order dated 11.4.2007 and
condone the delay of 25 days in filing the appeal before the High Court. The
High Court may now proceed to hear the Criminal Appeal in accordance with law.
The appeal is allowed.
The Secretary General of this Court is directed to circulate a copy of this
judgment to the Registrar Generals/Registrars of all the High Courts, who shall
circulate copies of the said judgment to all Hon'ble Judges of the High Courts.