Jasbir Singh Vs. State of Punjab [2006] Insc 645 (11 October 2006)
K.G.
Balakrishnan & Dr. Ar. Lakshmanan
(ARISING
OUT OF SLP (CRL.) NO. 3604 OF 2004) K.G. BALAKRISHNAN, J.
Leave
granted.
A case
was registered by P.S. Sirhind against seven persons, including the appellant
under Sections 469/467, 468/218-120B of IPC and also under the provisions of
the Prevention of Corruption Act. The appellant was arrested and remanded to
judicial custody and the final report was filed by the police. It appears that
the appellant moved an application for bail, but the same was rejected. The
appellant moved another bail application on 24.4.2003 before the Sessions
Judge, Fatehpur Sahib, which was fixed for hearing on 5.5.2003. Meanwhile, on
29.4.2003 the Administrative Judge of the High Court of Punjab & Haryana
came for annual inspection to the District & Sessions Court, Fatehpur
Sahib, and the Deputy Commissioner, S.S.P. and other police officers were
present. The Hon'ble Judge visited the Jail at Nabha as part of the inspection programme.
The appellant moved an application for bail during the course of inspection and
the learned Judge noticed the police officers as representative of the
prosecution, and as they had no objection to the granting of bail to the
appellant, the learned Judge passed the following Order:
"The
applicant is facing trial for commission of offences under Sections 409, 447,
468, 218, 120-B IPC and also under the provisions of Prevention of Corruption
Act. His co-accused similarly situated has since been enlarged on bail.
Applicant is in jail for the last seven months. Sessions Judge asked to look
into his application and enlarge him on bail as his trial is likely to take
some time before it is concluded" (emphasis supplied) Thereafter, the bail
application of the appellant came up for hearing before the Sessions Judge, Fatehpur
Sahib, who, without making a reference to the directions contained in the order
of the Administrative Judge, dismissed the application. But, on the next day,
i.e. 6.5.2003, when his attention was drawn to the order of the Administrative
Judge, the Sessions Judge granted bail to the appellant. The appellant also
moved an application for the release of his earth-moving machine, which was
seized by the police during investigations and the same was released to the
appellant on furnishing a bond in the sum of Rs. 20 lacs.
On
13.6.2003, one Usha Rani made a complaint to the Chief Justice of the Punjab
& Haryana High Court, alleging mala fides on the part of the Sessions
Judge, Fatehpur Saheb, in granting bail to the appellant. The Chief Justice
called for the proceedings and directed that the entire matter be placed before
the very same Administrative Judge on the judicial side. Thereupon, notice was
issued to the appellant. The de facto complainant also entered appearance. She
reiterated her allegation and sought for cancellation of bail granted to the
appellant. The learned Administrative Judge held that while passing the order
of bail on 6.5.2003, the Sessions Judge had not discussed the matter on merit
and therefore the order dated 6.5.2003 was set aside.
Aggrieved
by the same the appellant has preferred the instant appeal by way of special
leave.
When
the matter came before this Court on 16.2.2004, the following Order was passed:-
"Application for exemption from surrendering is dismissed.
At the
request of learned senior counsel for the petitioner this special leave
petition is adjourned by four weeks.
The
above special leave petition has been adjourned even at the stage of calling
for orders on admission. In the meantime while going through the order under
challenge, we find that observations have been made to the effect that there is
a practice of passing orders by an Administration Judge on the spot at the time
of inspection and the handing over of petitions for bail etc. at that time.
The
Registrar of the Punjab & Haryana High Court at Chandigarh, by taking
instructions/directions from the Chief Justice will send a detailed report to
this Registry to be placed when the matter is taken up as to for how long this
type of practice, if any, has been followed in the State and as to whether
there is any sanction for the same under any law; or administrative orders by
the Hon'ble Chief Justice of the Court at any time.
Copies
of such orders, if any, in the matter shall be enclosed to the report."
The report received from the Chief Justice of Punjab & Haryana, indicates
that there has been a constant practice of the Inspecting/Administrative Judges
receiving applications from inmates of jail, for grant of bail, and while in
some cases the Inspecting Judge by himself would pass the order, in other cases
he would direct the Sessions Judges to grant bail or direct the application to
be dealt with in accordance with law. The Chief Justice has furnished the
details of the various orders where the Inspecting Judges had granted bail to
the inmates of jail during the course of inspection. Some of the judges gave
the opinion to the Chief Justice that they used to receive bail applications,
which they were marking to the Registry of the High Court for further action.
Some of the Judges asserted that they had never granted any bail application in
the course of inspection and those applications were only directed to be placed
before the concerned Sessions Judge.
The
Registrar General in his report has made certain startling revelations to the
effect that series of bail orders were granted by the Judges in the course of
inspection, on applications received from undertrial prisoners. The Chief
Justice has emphatically denied having given any jurisdiction to any of the
Judges to hear and pass orders on bail applications during inspection. It seems
that the stand taken by some of the Judges is that the Judges of the High Court
are vested with the power of superintendence and control over all courts and
tribunals subordinate to the High Court under Article 227, and as part of such
Constitutional power, the Inspecting Judges have the right and duty to consider
the bail applications during inspection.
The learned
counsel appearing on behalf of the Bar Council of the State of Haryana
submitted that in many cases the bail applications are not considered by the
Sessions Judges in time and the accused have to remain in jail for
unnecessarily long periods and that in such cases it is the duty of the
Inspecting Judges to receive bail applications and pass appropriate directions.
What
is the width and amplitude of the power of superintendence over subordinate
courts and whether it authorizes the Inspecting Judges to transact any judicial
work, which is in the domain of the subordinate courts, is the question that
arises for consideration in this appeal.
The
power of superintendence over all the subordinate courts and tribunals is given
to the High Court under Article 227 of the Constitution. So also, under Article
235 of the Constitution, the High Courts exercise control over all the district
courts and courts subordinate thereto on all matters relating to posting,
promotion and grant of leave to officers belonging to the judicial service of
the State. The power of superintendence conferred on the High Court under
Article 227 over all the courts and tribunals throughout the territory of the
State is both of 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.
The
extraordinary power under Article 227 can only be used by the High Courts to
ensure that the subordinate courts function within the limits of their
authority. The High Court cannot interfere with the judicial functions of a
subordinate Judge. Speaking on the power of superintendence of the High Court
under Article 227 in Waryam Singh vs. Amarnath (AIR 1954 SC 215), at page 217,
Justice S.R. Das observed :- "The material part of Article 227
substantially reproduces the provisions of Section 107 of the Government of
India Act, 1915 except that the power of superintendence has been extended by
the Article also to Tribunals..
Further,
the preponderance of judicial opinion in India was that Section 107 which was similar in terms to Section 15 of the
High Courts Act, 1861, gave a power of judicial superintendence to the High Court
apart from and independently of the provisions of other laws conferring revisional
jurisdiction on the High Court.
In
this connection it has to be remembered that Section 107 of the Government of
India Act, 1915 was reproduced in the Government of India Act, 1935 as Section
224. Section 224 of the 1935 Act, however, introduced sub- section (2), which
was new, providing that nothing in the section should be construed as giving
the High Court any jurisdiction to question any judgment of any inferior court
which was not otherwise subject to appeal or revision. The idea presumably was
to nullify the effect of the decisions of the different High Courts referred to
above. Section 224 of the 1935 Act has been reproduced with certain
modifications in Article 227 of the Constitution. It is significant to note
that sub- section (2) to Section 224 of the 1935 Act has been omitted from
Article 227.
This
significant omission has been regarded by all High Courts in India before whom this question has
arisen as having restored to the High Court the power of judicial
superintendence it had under Section 15 of the High Courts Act, 1861 and
Section 107 of the Government of India Act, 1915..
This
power of superintendence conferred by Article 227 is, as pointed out by Harries,
C.J., Mukherjee, AIR 1951 Cal 193 (SB (B), to be exercised most sparingly and
only in appropriate cases in order to keep the Subordinate Courts within the
bounds of their authority and not for correcting mere errors".
This
view expressed was later followed by this Court in Jaswant Singh, at page 1225
:- "It is also well established that it is only when an order of the
Tribunal is violative of the fundamental basic principles of justice and fair
play or a patent or flagrant error in the procedure of law has crept or where
the order passed results in manifest injustice, that a court can justifiably
intervene under Article 227 of the Constitution." this Court held :-
"The supervisory jurisdiction conferred on the High Court's under Article 227
of the Constitution is limited "to seeing that an inferior Court or
Tribunal functions within the limits of its authority," and not to correct
an error apparent on the face of the record, much less an error of law.. In
exercising its supervisory powers under Article 227, the High Court does not
act as an appellate court or Tribunal. It will not review or reweigh the
evidence upon which the inferior court or tribunal purports to be based or to
correct any errors of law in the decision." This Court also made almost similar
observations in State So, even while invoking the provisions of Article 227 of
the Constitution, it is provided that 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. The power of superintendence
exercised over the subordinate courts and tribunals does not imply that the
High Court can intervene in the judicial functions of the lower judiciary.
The
independence of the subordinate courts in the discharge of their judicial
functions is of paramount importance, just as the independence of the superior
courts in the discharge of their judicial functions. It is the members of the
subordinate judiciary who directly interact with the parties in the course of
proceedings of the case and therefore, it is no less important that their
independence should be protected effectively to the satisfaction of the
litigants. The independence of the judiciary has been considered as a part of
the basic structure of the Constitution and such independence is postulated not
only from the Executive, Union of India 1981 (Supp.) SCC 87, speaking on the
independence of the judiciary, a Bench of seven Judges observed as under at
page 221-222 :- "The concept of independence of judiciary is a noble
concept which inspires the constitutional scheme and constitutes the foundation
on which rests the edifice of our democratic polity.. But it is necessary to
remind ourselves that the concept of independence of judiciary is not limited
only to independence from executive pressure or influence but it is a much
wider concept which takes within its sweep independence from many other
pressures and prejudices. It has many dimensions, namely, fearlessness of other
power centres, economic or political, and freedom from prejudices acquired and
nourished by the class to which the Judges belong." The counsel appearing
for the respondent submitted that the power of superintendence and control over
the subordinate courts is conferred on the High Court under Article 235 of the
Constitution and therefore the Inspecting Judge was fully justified under
certain circumstances to entertain the bail petitions or transfer applications
and direct the District Judges or other courts to pass appropriate orders. We
find no force in this contention.
This
plea has been raised without any basis. Article 235 of the Constitution gives
power to the High Court to exercise control over the subordinate courts. This
power has been specifically described in Article 235 in a comprehensive sense
so as to include the powers of general superintendence over the working of the
subordinate courts; disciplinary control over the Presiding Judges of the
subordinate courts which includes power to make inquiry; and impose punishments
other than dismissal, removal or reduction in rank subject, of course, to the
rules of services and Article 311(2) of the Constitution. This power also would
include the power to order disciplinary inquiry, transfers, promotions of
members of subordinate judiciary and confirmation of officers etc.
It
also includes the power to recall officers of the subordinate courts holding ex
cadre posts or to send officers on deputation to other administrative posts or
award selection grade or pass orders on any such matters connected with
service. The powers of control to be exercised under Article 235 of the
Constitution do not extend to interfering with the judicial functions of the
subordinate courts.
By
virtue of the power under Article 235 the High Court cannot direct the
presiding officer to pass a judicial order in a particular manner as that would
certainly amount to interfering with the independence of the subordinate
judiciary.
In the
course of inspection, the High Court Judge is required to examine whether the
courts are functioning within the norms laid down by the High Court. Mostly the
inspection is to be confined to the administrative functioning of the courts
and its officers. If any member of the administrative staff is not doing the
work assigned to him or is causing any delay in the process of administration
of justice, the Inspecting Judge can give proper direction and see that the
courts function smoothly. But under no circumstances, the Inspecting Judge, as
part of his administrative duty enjoys the power to interfere with the judicial
functions of the subordinate courts in individual cases. In the course of
inspection, a High Court Judge cannot pass any order on interim applications,
such as bail petitions or transfer applications or applications for interim
injunction, howsoever justified they may be. Orders on bail applications are
passed under the provisions of the Code of Criminal Procedure or under various
other enactments, which provide for grant of bail and such orders are passed as
part of the judicial work. The Inspecting Judge is not supposed to pass any
judicial order in individual cases in the course of inspection. Of course, he
can give administrative directions to the Presiding Officer or to any of the
subordinate staff, if such directions are pertinent in the context of
administration of justice. Except giving general directions regarding any
matter concerning administration of justice, any interference in the judicial
functions of the Presiding Officer would amount to interference with the
independence of the subordinate judiciary.
So
also, while on inspection, the Inspecting Judge is not supposed to perform any
judicial work.
A
question of a similar nature came before this Court in case where the Judge of
the High Court of Guwahati was nominated as the Vacation Judge and certain
dates were fixed on which he was to sit and hear urgent civil and criminal
applications. One of these dates was October 31, 1966 and another was November 10, 1966. It was also stated in the order
that if there was any matter which was extremely urgent, it would be heard on
any other day by appointment through the Registrar.
This
Judge was also working as a Commission of Enquiry during that period. For that
purpose, he had to go out of Gauhati, (the seat of the High Court) to Sibsagar
after the vacation sitting on October 31, 1966.
Therefore, on November
2, 1966 he was not
available at Gauhati, even though he was the Vacation Judge.
Petitioner
filed a writ petition seeking permission to write an examination which was to
be held on November 4,
1966. The petitioner
gave notice to the Government Advocate and thereafter went to Sibsagar where
the Judge was holding the Commission of Enquiry and presented his petition. The
writ petition was entertained and the learned Judge passed an interim order
permitting the petitioner to write the examination. This order was challenged
later and this Court held that by virtue of appointment as a head of
Commission, the Judge does not demit his office and while holding a Commission
of Enquiry at Sibsagar if he received the petition and passed an order, all
that can be said is that the petition was irregularly presented at Sibsagar
when it should have been presented at Gauhati.
Therefore,
even if any application for bail is received by the Inspecting Judge, the
proper course is to send the application to the concerned court to pass
appropriate orders. When the Inspecting Judge visits the jail, it is quite
likely that so many inmates of the jail may file petitions before the concerned
Judge.
It is
the duty of the Judge to see whether there is any merit in any of these
petitions. If any application for bail is received, he can very well send it to
the concerned court without making any comments on the merits of the case. On
the contrary, if the learned Inspecting Judge passes any order in such matter,
he would only be usurping the powers of the courts authorized to pass such
orders. It may also be remembered that normally a High Court Judge passes
orders on matters assigned by the Chief & Ors, AIR 1998 SC 1344 deprecated
the practice of the Single Judge directing the listing of certain part-heard
cases before him without there being any orders of Hon'ble the Chief Justice of
the High Court. It is the prerogative of the Chief Jusitce to assign business
of the High Court both on judicial and administrative sides. The Chief Justice
alone has the power to decide as to how the Benches of the High Court are to be
constituted. That necessarily means that it is not within the competence of any
Single or Division Bench of the High Court to give any direction to the
Registry in that behalf which will run contrary to the directions of the Chief
Justice. Therefore, in the scheme of things, judicial discipline demands that
in the event a single Judge or a Division Bench considers that a particular
case requires to be listed before it for valid reasons, it should direct the
Registry to obtain appropriate orders from the Chief Justice.
The
Inspecting Judges would be at liberty to receive complaints or petitions in the
course of inspection so as to bring the same to the notice of the appropriate
court or to the Registry of the High Court, so that it may, in turn, be brought
to the notice of the Chief Justice who may place it before an appropriate forum
for passing orders.
In the
instant case, as the accused has already been released on bail, we need not
pass any order. With the above observations, the appeal is disposed of.
Back