R.S. Mishra Vs State
of Orissa & Ors.
JUDGMENT
Gokhale J.
1.
The
appellant in this appeal is a retired Additional Sessions Judge of the State of
Orissa. In this appeal by Special Leave, he seeks to challenge the judgment and
order dated 20.10.2002, rendered by a learned Judge of the Orissa High Court in
suo-moto Criminal Revision No. 367 of 1997, arising out of Session Trial Case
No. 187/55 of 1995, to the extent the learned Judge has made certain
observations against the appellant who had decided that session case. These
remarks were made on account of the appellant not framing the charge under
Section 302 of the Indian Penal Code (IPC) against the accused inthat case,
when the material on record warranted framing of that charge.
2.
The
facts leading to this appeal are as follows: Appellant not framing the charge
under Section 302 IPC, when warranted. The appellant joined the Orissa judicial
service in November 1971.In August 1991, he was promoted to the cadre of
District Judges. During the period of his service, the appellant was
transferred from place to place, and at the relevant time in March 1996, was
posted as the Additional District and Sessions Judge, Rourkela, when the above
referred case bearing S.T. No. 187/55of 1995 was assigned to him.
3.
The
case of the prosecution in that session case was as follows. There was a land
dispute between one Megha Tirkey (the accused) and one Samara Tirkey, who was
alleged to have been murdered by the accused. Jayaram Tirkey is the younger
brother of accused. On 25.06.1995, at about11:00 a.m., Samara Tirkey (the
deceased) is said to have abused Smt. Mangi the wife of Jayaram Tirkey (PW-1)
on account of the alleged encroachment of Samara's land by the uncle of
Jayaram, one Shri Daharu Kujur. On the next day, i.e. on 26.6.1995, Jayaram
Tirkey along with his brother Megha Tirkey, the accused went to the house of
Samara Tirkey, the deceased. Initially, Samara Tirkey was not available and
Jayaram and Megha Tirkey enquired about his where about with his wife Hauri
(PW-3). In the meanwhile, Samara Tirkey reached over there. Jayaram Tirkey
asked Samara as to why he had scolded Jayaram's wife in his absence. Samara
Tirkey is said to have raised his hand towards Jayaram when accused Megha
Tirkey dealt a lathi blow on the head of Samara Tirkey whereby he fell down. Thereafter,
the accused Megha Tirkey gave two more lathi blows on his chest. When Hauri
caught hold of the accused,he gave a lathi blow to her also and she received a
lacerated wound on her forehead. Samara Tirkey was taken to the Raurkela Govt.
Hospital, where he died on 27.6.1995 at about 2:00 p.m.
4.
Megha
Tirkey was charged under Section 302 and 323 IPC. The matter reached before the
appellant on 21.03.1996 when he passed the following order:- "Order No.8
dt. 21.03.1996 The accused is produced in custody by the escort party. Learned
Associate Lawyer who represents the State is present. Learned Defence counsel
is also present. Learned Associate Lawyer opens the prosecution case by describing
the charges brought against the accused and stating by what evidence he
proposes to prove the guilt of the accused.
The learned Defence
counsel submits that there is complete absence of evidence to frame charge u/s
302 IPC and that the available evidence may bring at-best an offence u/s 304 IPC.
After hearing submissions of both sides in this behalf and on consideration of
the materials available in the case diary, I find there is no sufficient
material to frame charge u/s 302 IPC but there are sufficient materials against
the accused for presuming that he has committed the offence u/s 304 IPC and 323
IPC. Hence, charge u/s 304 IPC and u/s 323 IPC are framed against the accused.
The charges being read-over and explained, the accused pleads not guilty and
claimed to be tried. The Defence does not admit the genuineness of the documents
filed by the prosecution. Put up on 25.4.96 for fixing a date of hearing of the
Sessions
trial.
Sd/-
Addl.
Sessions Judge,
Rourkela,
21.3.96"
5.
Subsequently,
the appellant was transferred from Rourkela, and the matter proceeded before
one Shri S.K. Mishra, the subsequent Additional Sessions Judge at Rourkela. It
so happened that during the trial, some of the prosecution witnesses, viz. PW
Nos. 2, 4, 5, 6, 7 were declared hostile by the prosecution since they did not
support the case. The Judge, however, found the evidence of Hauri (PW No. 3)
wife of Samara Tirkey, the deceased, as acceptable and reliable. Her testimony
was supported by the medical evidence.
The Doctor found a
lacerated injury on her forehead. She stated that the accused had given a lathi
blow on the head of the deceased and then on his chest, in her presence. She
also stated about the lathi blow given to her. The post-mortem examination revealed
that amongst other injuries, the left side mandible of the deceased was fractured
and there was subdural haematoma over the left parietal region of the scalp.
The other vital organs like lungs, liver, kidney were all congested. Due to these
injuries, the deceased went into coma and then died. The learned Judge held
that the prosecution had established the charges beyond reasonable doubt and
found the accused guilty of offences under Section 304 and 323 of IPC, and convicted
him accordingly. He sentenced him to undergo Rigorous Imprisonment for five
years under Section 304 (1) of IPC and for one month for offence under Section
323 IPC, with both the punishments running concurrently.
6.
Note
by the Inspecting Judge It so transpired that later the inspection of the Court
of Additional& District Sessions Judge, Rourkela was carried out by Hon'ble
Mr. Justice P.K.Mishra, then a Senior Judge of the High Court of Orissa. At
that stage, while going through the file of S.T. No.187/55 of 1995, Mr. Justice
P.K. Mishra camea cross the above referred Order No.8 dated 21.3.1996 passed by
the appellant therein. Thereupon Mr. Justice P.K. Mishra made the following
note on that file:- "In this case, the only accused Megha Tirkey was
charge- sheeted under sections-302/323 IPC for c l u b b i n g the victim (Samra
Tirkey) to death on 26.06.1995 at 3.30 P.M. The additional Sessions Judge,
Rourkela while discharging the accused from the offence under Section - 302
framed charges under sections 304/323 of the Indian Penal Code without
recording any reason for discharging the accused from the offence under Section
302 IPC.
The order of the
Additional Sessions Judge only states that material available in the case diary
is insufficient to frame a charge under Section 302 IPC. It is the settled
principle of law that while framing charge the Sessions Judge under Section
-228 Cr.P.C. need not assign reasons, but he is bound to record reasons while
recording a discharge under Section 227 Cr.P.C. In the present case, the widow
of the deceased (P.W.3) has testified that the accused dealt a forceful lathi
blow on the head of the deceased and two more blows on his chest.
The post-mortem examination
reveals that ramus of the left side mandible of the deceased was fractured on
the chin besides left parietal region of the scalp. Relying on the ocular
testimony of widow of the deceased and the post-mortem examination report that
lends support to her evidence, the Additional Sessions Judge recorded a
conviction under Section 304 (1)/323 of the Indian Penal Code and sentenced the
accused to undergo R.I. for five years on the first count and one month R.I. on
the second count with a direction for concurrent running of sentences. 6 It is
no body's case that the offence was committed on grave and sudden provocation.
The Addl. Sessions Judge should not have nipped the case U/s 302 IPC at the bud
by discharging the accused thereof by a non speaking order. This is a fit case
for suo-moto revision U/s 401 Cr.P.C."
7.
Suo-moto
Criminal Revision In view of the note of Hon'ble Justice Mr. P.K. Mishra, the
High Court took up a suo-moto Criminal Revision against the order dated
21.3.1996, which was numbered as No.187/55 of 1995. The learned Single Judge,
who heard the matter, went through the judgment rendered at the end of the
trial in CaseNo.187/55 of 1995, as well as the order of framing charge dated
21.3.1996. He examined the material on record and noted that P.W. No. 3 had
come to the rescue of her husband when he received lathi blows. She had also
received a lathi blow. Her evidence was, therefore, a credible evidence. He referred
to the post-mortem report which stated that out of the four external injuries,
injury No. 4, i.e., fracture of ramus of left side mandible, was grievous. On
dissection, it had been found by the Doctor that the brain membrane was
congested.
There was a subdural
ha ematoma over the left parietal lobe and brain was congested. The other vital
internal organs like lungs, liver, spleen, kidney were all congested. The Doctor
(P.W. No.8) opined that death was due to coma resulting from injury to brain
and scalp bones and the injuries were ante-mortem in nature. On this factual
aspect, the learned Single Judge held as follows: - "If the materials in
the case diary reveal two distinct offences of the same nature then it is
appropriate to frame charge for more grievous offence or to frame charge for
both the offences distinctly and separately. That being the settled position of
law and the prosecution case stands in the manner indicated above, 7 therefore,
there is no hesitation to record a finding that learned Additional Sessions
Judge, Rourkela went wrong in framing charge for the offence under Section 304,
IPC by declining to frame charge under Section 302 IPC for no reason explained
in the order passed under Section 228 Cr.P.C."
8.
Impugned
observation by the Single Judge The learned Single Judge, however, noted that
by the time he was deciding the Criminal Revision, the accused had already
served the sentence of five years of Rigorous Imprisonment. Therefore, he did
not deem it to be a fit case for ordering a retrial under Section 300 (2) of
Code of Criminal procedure,1973 (`Cr.P.C.' for short). He disposed of the
suo-moto Criminal Revision accordingly by his order dated 28.10.2002.
1.
The
learned Single Judge, however, made certain observations in para 5 of his order
which are material for our purpose. This para reads as follows: - "5. A
Judicial Officer before being posted as Addl. Sessions Judge gets the
experience of conducting sessions cases as Assistant Sessions Judge. Therefore,
in this case, it cannot be said that the concerned Presiding Officer had no
requisite experience to deal with a matter relating to consideration of charge
and to pass appropriate legal order under Sections 227 and 228 Cr. P.C correctly.
When the accused was not charged for the offence under Section 302, IPC and
instead he was charged for the offence u/s 304 IPC, it was incumbent on the
trial court to explain the circumstances and to reflect the same in the order
as to what was the reason or lack of evidence not to frame charge for the offence
under Section 302 IPC.
This Court finds no
reasonable excuse for the concerned Presiding Officer to commit a blunder in
the above indicated manner....... If the said Judicial officer has not yet been
confirmed in the cadre of O.S.J.S (S.B.), then before confirming him in that
cadre his performance be thoroughly verified and in the event of finding
glaring deficiency in his performance, as in this 8 case, then he may be kept
on probation for a further period as would be deemed just and proper by the
High court. If he has already been confirmed in that cadre, then his
performance be thoroughly verified before giving him promotion to the higher scale."
Thus, in first part of this para, the learned Judge has held that the appellant
had committed a blunder in not framing the charge under Section 302IPC. In the
latter part of the para, he has made certain observations about the manner in
which the appellant had passed the order dated 21.3.1996, and also some
correctional suggestions about the appellant.
9.
Subsequent
to these observations in this order dated 28.10.2002,the High Court
Administration examined the record of the appellant and denied him the
Selection grade. The appellant's representation dated 24.09.2003 in that behalf
was also rejected by the High Court Administration as per the communication
dated 20.11.2003 to the appellant from the Special Officer(Administration). Being
aggrieved therewith the appellant took Voluntary Retirement on 30.11.2003, and
subsequently filed the present Appeal by special leave on 13.02.2004 to
challenge the above order dated 28.10.2002 and the observations made therein.
10.
Submissions
on behalf of the Appellant Mr. Uday Gupta, learned Counsel for the appellant,
submitted that the order passed by the appellant on 21.3.1996 was a judicial
order. It ispossible to say that this order was an erroneous one, but merely
for that reason, it was not proper for the inspecting judge to direct that a
suo-moto Revision be filed against the same. In any case, it was wrong on the
part of the learned Single Judge who heard the suo-moto Revision, to make the
observations which he has made in the above quoted paragraph 5 of his order
which has affected appellant's career. Mr. Gupta submitted that the appellant
had otherwise a good service record after his promotion in District Judge's
Cadre in August 1991. He had worked initially as an Additional Special Judge
(Vigilance) at Bhubaneshwar, thereafter for two years as the Presiding Officer
of the E.S.I Court at Rourkela, then as Additional Sessions Judge at Rourkela
in 1996 and then for three years as the Presiding Officer of the Central Govt.
Industrial Tribunal at Asansol, West Bengal. Subsequently, he became the
Additional District Judge and Presiding Officer of the Motor Accidents Claims
Tribunal in Cuttack, Orissa from July 1999to November 1999. From November 1999
to September 2002, he was the Director (Law Studies), Gopabandhu Academy of
Administration, Bhubaneshwar, and subsequently the Additional District Judge,
Talcher, Orissa, from October2002 to 30.11.2003. He pointed out that the
appellant had participated in various seminars and conferences and presented
his papers. His record was otherwise quite good.
11.
Mr.
Gupta relied upon the judgment `In the matter of `K' A Judicial Officer [2001
(3) SCC 54]'. The concerned judicial officer in that matter was assigned a
courtroom which had great infrastructural difficulties. Complaints in that
behalf were not being attended in spite of a number of representations to the
PWD officials. Being dissatisfied by this inaction, the learned Judge issued a
notice to the concerned authorities as to why action in contempt should not be
taken against them. The PWD acted promptly thereafter, and carried out the
necessary repairs. Learned Judge therefore dropped the contempt proceedings but
still held that there was a case to take cognizance under Sections 380, 201 and
120-B of IPC and issued process against the concerned officers. Being aggrieved
by that order, the matter was carried to the High Court where the High Court
observed that the learned Magistrate had exceeded her jurisdiction defying all
judicial norms to pressurize the officers, and her order was a gross abuse of
the process of Court since there was no occasion to invoke the particular
sections of IPC. When the Judicial Officer carried the matter to this Court,
this Court observed in paragraph 15 of the above judgment that by the
observations of the High Court, the Judicial Officer was being condemned
unheard. This Court observed in paragraph 15 that such observations give a
sense of victory to the litigant not only over his opponent but also over the
Judge who had decided the case against him and the same should be avoided. The
counsel for the appellant relied upon the report of the First National Judicial
Pay Commission to submit that at times the Trial Judges are really on trial as
observed in the report.
12.
The
learned Counsel for the appellant then relied upon the observations in para 13
of the judgment of this Court in V.K. Jain Vs. High Court of Delhi through
Registrar General and Others [2008 (17) SCC538] and the principles of law laid
down in para 58 thereof. In that matter, the appellant while working as a
Judicial Officer in the Higher Judicial Services of Delhi, vide his order dated
4.3.2002, permitted an accused in a criminal case to go abroad subject to the
conditions that the accused would file Fixed Deposit Receipts (FDR) of Rs. one
lakh and also surrender passports of his mother and wife. When the said order
dated 4.3.2002, was challenged, the High Court found those conditions
unacceptable. In its order, the High Court made certain observations against
the petitioner and in paragraph 15 held that:- "5.....This is nothing but
a medieval way of administering justice when family members used to be kept as
hostages in lieu of either release of their detained kith and kin or procure
the surrender of the wanted man." Being aggrieved by that order the
Judicial Officer carried the matter to the Supreme Court, where this Court
cautioned against making such strong observations, it expunged those remarks
from the order of Delhi High Court. In sub-paragraph IX of para 58, this Court
laid down the following principle:-
"IX. The
superior courts should always keep in mind that disparaging and derogatory
remarks against the judicial officer would cause incalculable harm of a
permanent character having the potentiality of spoiling the judicial career of
the officer concerned. Even if those remarks are expunged, it would not completely
restitute and restore the harmed Judge from the loss of dignity and honour
suffered by him." Mr. Gupta emphasized these observations and submitted
that the High Court should not have made the above observations in para 5 of
the impugned order which have caused an incalculable harm to the career of the appellant.
13.
He
then relied upon paragraphs 16 to 20 of the judgment in Prakash Singh Teji Vs.
Northern India Goods Transport Company Private Limited and Anr. [2009 (12) SCC
577]. In that matter, in the facts of the case the High Court had described the
approach of the Judicial Officer concerned as hasty, slipshod and perfunctory.
The adverse remarks against the appellant were removed in paragraph 20 of the
judgment in the light of the principles laid down in `K' A Judicial Officer
(Supra). This Court held that harshor disparaging remarks are not to be made
against persons and authorities whose conduct comes into consideration before
courts of law, unless it is really necessary for the decision of the case as an
integral part thereof.
14.
Reply
by the Respondents The arguments of the appellant were countered by Mr.
Janaranjan Das and Mr. Suresh Chandra Tripathy appearing for the respondents.
Affidavits in reply have been filed by the State Government and also on behalf
of Respondent Nos. 3 and 4 to the appeal, i.e. Registrar (Administration) and Registrar
(Judicial) of High Court of Orissa. It is pointed out in the affidavit on behalf
of the High Court that this was not a solitary incident concerning the appellant.
Adverse remarks were entered into his confidential record for the years 1973-79
continuously, and again for 1981, 1983, 1987 to 1989, and 1991.It was also
pointed out that in a case under Narcotic Drugs and Psychotropic Substances
Act, 1985 (N.D.P.S. Act), the appellant had granted bail in the teeth of the
prohibition under Section 37 of that Act. He was, therefore, placed under suspension
from 19.12.1992.
An inquiry was
initiated, though after considering the report of the inquiry, the proceeding
was dropped and the appellant was allowed to resume from 15.8.1994. He was then
posted as Additional District Judge, Rourkela where he heard the matter
concerning the murder of Samara Tirkey. With respect to this submission of the
respondents, the counsel for the appellant pointed out that after the revocation
of suspension, his service record was good, and in fact thereafter the remark
of being `outstanding' was recorded in his service book for a few years. The
counsel for the respondents countered this submission by pointing out that
subsequent to the revocation of suspension also there were representations
against appellant's honesty and integrity, particularly while working as the
Industrial Tribunal cum Labour Court in Asansol, West Bengal. In fact because
of that, he was transferred back to Malkanagiri, Orissa where he opted for
voluntary retirement.
15.
It
was submitted on behalf of the respondents that the case No.187/55 of 1955 was
a serious one concerning the death of a young person aged about 40 years. The
deceased was given a lathi blow on his head because of which he fell down,
where after also two lathi blows were given on his chest. His wife also
received a lathi blow and she was an eye witness. Medical Evidence showed that
because of these blows the deceased had died. None of these aspects has been
considered by the appellant in his order dated 21.03.1996,extracted above. All
that the appellant has stated in this order is that he had heard the
submissions of both sides, and on the consideration of the material available
in the case diary, he found that there was no sufficient material to frame the
charge under Section 302 IPC. As against that, according to the respondents
there was sufficient material on record to justify the framing of the charge
under Section 302 IPC, and in any case while declining to frame the charge
under Section 302 IPC, the appellant ought to have discussed as to why according
to him the material on record was not sufficient. Absence of reasons in such a
case amounts to a dereliction of duty. The order in such a matter has to be a
self-explanatory one. Since it is not so, all that the learned Single Judge deciding
the Revision has done, is to suggest to the High Court Administration to take
corrective steps with respect to the appellant, and the same was justified.
16.
Consideration
We have noted the submissions of both the counsel. We are concerned with the
role of the Judge at the stage of framing of a charge. The provision concerning
the framing of a charge is to be found in Section 228 of Cr.P.C. This Section
is however, connected with the previous section, i.e. Section 227 which is
concerning `Discharge'. These two sections read as follows:- Section 227 -
Discharge - If, upon consideration of the record of the case and the documents
submitted therewith, and after hearing the submissions of the accused and the
prosecution in this behalf, the Judge considers that there is not sufficient
ground for proceeding against the accused, he shall discharge the accused and record
his reasons for so doing. Section 228 - Framing of charge (1) If, after such consideration
and hearing as aforesaid, the Judge is of opinion that 15 there is ground for
presuming that the accused has committed an offence which- (a) is not
exclusively triable by the Court of Session, he may, frame a charge against the
accused and, by order, transfer the case for trial to the Chief Judicial
Magistrate3[or any other Judicial Magistrate of the first class and direct the
accused to appear before the Chief Judicial Magistrate, or, as the case may be,
the Judicial Magistrate of the first class, on such date as he deems fit, and
thereupon such Magistrate] shall try the offence in accordance with the
procedure for the trial of warrant-cases instituted on a police report; (b) is
exclusively triable by the Court, he shall frame in writing a charge against
the accused. (2) Where the Judge frames any charge under clause (b) of sub- section
(1), the charge shall be read and explained to the accused and the accused
shall be asked whether he pleads guilty of the offence charged or claims to be
tried.
17.
As
seen from Section 227 above, while discharging an accused, the Judge concerned
has to consider the record of the case and the documents placed therewith, and
if he is so convinced after hearing both the parties that there is no sufficient
ground to proceed against the accused, he shall discharge the accused, but he
has to record his reasons for doing the same. Section 228which deals with
framing of the charge, begins with the words "If after such consideration".
Thus, these words in Section 228 refer to the `consideration' under Section 227
which has to be after taking into account the record of the case and the
documents submitted therewith. These words provide an inter-connection between
Sections 227 and 228. That being so, while Section 227provides for recording
the reasons for discharging an accused, although it is not so specifically
stated in Section 228, it can certainly be said that when the charge under a
particular section is dropped or diluted, (although the accused is not discharged),
some minimum reasons in nutshell are expected to be recorded disclosing the
consideration of the material on record. This is because the charge is to be
framed `after such consideration' and therefore, that consideration must be
reflected in the order.
18.
It
is also to be noted that a discharge order is passed on an application by the
accused on which the accused and the prosecution are heard. At the stage of
discharging an accused or framing of the charge, the victim does not
participate in the proceeding. While framing the charge, the rights of the victim
are also to be taken care of as also that of the accused. That responsibility
lies on the shoulders of the Judge. Therefore, on the analogy of a discharge
order, the Judge must give his reasons at least in a nutshell, if he is dropping
or diluting any charge, particularly a serious one as in the present case. It
is also necessary for the reason that the order should inform the prosecution as
to what went wrong with the investigation. Besides, if the matter is carried to
the higher Court, it will be able to know as to why a charge was dropped or diluted.
19.
The
observations of this Court in the case of State of Bihar Vs. Ramesh Singh [AIR
1977 SC 2018] / [1977 (4) SCC 39] are very apt in this behalf. A bench of two
Judges of this Court has observed in that matter that at the initial stage of
the framing of a charge, if there is a strong suspicion/evidence which leads
the Court to think that there is ground for presuming that the accused has
committed an offence, then it is not open to theCourt to say that there is no
sufficient ground for proceeding against the accused. The Court referred to the
judgment of a bench of three Judges in Nirmaljit Singh Hoon Vs. State of West
Bengal [1973 (3) SCC 753],which in turn referred to an earlier judgment of a
bench of four Judges in Chandra Deo Singh Vs. Prokash Chandra Bose [AIR 1963 SC
1430], and observed as follows in para 5:- "5.
In Nirmaljit Singh
Hoon v. State of West Bengal - Shelat, J. delivering the judgment on behalf of
the majority of the Court referred at page 79 of the report to the earlier
decisions of this Court in Chandra Deo Singh v. Prokash Chandra Bose - where this
Court was held to have laid down with reference to the similar provisions
contained in Sections 202 and 203 of the Code of Criminal Procedure, 1898
"that the test was whether there was sufficient ground for proceeding and
not whether there was sufficient ground for conviction, and observed that where
there was prima facie evidence, even though the person charged of an offence in
the complaint might have a defence, the matter had to be left to be decided by
the appropriate forum at the appropriate stage and issue of a process could not
be refused".
Illustratively,
Shelat, J., further added "Unless, therefore, the Magistrate finds that
the evidence led before him is self- contradictory, or intrinsically
untrustworthy, process cannot be refused if that evidence makes out a prima
facie case".(emphasis supplied) Further, as observed later in paragraph 6
of a subsequent judgment of this Court in Niranjan Singh Vs. Jitendra Bhimraj
[1990 (4)SCC 76], at the stage of the framing of the charge, the Judge is
expected to sift the evidence for the limited purpose to decide if the facts
emerging from the record and documents constitute the offence with which the
accused is charged. This must be reflected in the order of the judge.
20.
Thus
it cannot be disputed that in this process the minimum that is expected from
the Judge is to look into the material placed before him and if he is of the
view that no case was made out for framing of a charge, the order ought to be
clear and self-explanatory with respect to the material placed before him. In
the present case, all that the appellant stated in his order dated21.03.1996
was, that on consideration of the material available in the case diary, he had
found that there was no sufficient material to frame the charge under Section
302 of IPC. This is nothing but a bald statement and was clearly against the
statement of the injured eye witness, and supporting medical papers on record.
The appellant has not even referred to the same. He has also not stated in his
order as to why he was of the opinion that the material available in the case
diary was insufficient. Such a bald order raises a serious doubt about the bona
fides of the decision rendered by the Judge concerned.
21.
In
the instant case, a young person had been killed. It was not a case of grave
and sudden provocation. The material on record showed that there was an injured
eye witness and there was the supporting medical report. The material on record
could not be said to be self-contradictory or intrinsically unreliable. Thus,
there was a prima facie case to proceed to frame the charge under Section 302
IPC. The reason given for dropping the charge under Section302 was totally
inadequate and untenable, and showed a non-application of mind by the appellant
to the statements in the charge-sheet and the medical record. The order does
not explain as to why a charge under Section 304 was being preferred to one
under Section 302 IPC. In fact, since the material on record revealed a higher
offence, it was expected of the appellant to frame the charge for more grievous
offence and not to dilute the same.
22.
The
impugned order of the learned Single Judge deciding Revision notes that the
appellant had been functioning in the rank of the District Judgefrom August
1991 onwards, i.e. for nearly 5 years prior to his order dated21.3.1996. The
impugned order further states in para 5, that a Judicial Officer, before being
posted as an Additional Session Judge, gets an experience of taking the
sessions cases as Assistant Session Judge. It cannot, therefore, be said that the
appellant did not have requisite experience to pass a correct legal order under
Section 228 of Cr.P.C.
23.
That
apart, all that the impugned order in Revision has done is to suggest to the
High Court Administration, that if the appellant is not yet confirmed, his
probation should wait and if he has already been confirmed, his performance be
verified before giving him the higher scale. Since the appellant, was already
confirmed in service, all that the High Court has done on the administrative
side is to check his record, and thereafter to deny him the selection grade.
The above observation in the impugned order in Revision is a suggestion to the
Administration of the High Court. It is not a case of making any adverse or
disparaging remarks as in the three cases cited on behalf of the appellant. In
fact, in the first judgment cited by the appellant, in the case of V.K. Jain
(supra), the observation of this Court in clause No. I of para 58 is very significant,
namely that the erosion of the credibility of the judiciary in the public mind,
for whatever reason, is the greatest threat to the independence of judiciary.
Having noted that the
appellant had failed in discharging his duty in framing the correct charge, and
having also noted that his record was not good, the High Court could not have
granted him the selection grade. The selection grade is not to be conferred as
a matter of right. The record of the concerned Judge has to seen, and that
having been done in the present case (in pursuance to the observations of the
learned Single Judge), and having noted the serious deficiencies, the High
Court has denied the selection grade to the appellant. Interestingly enough, in
this Appeal by Special leave, the appellant is not directly seeking to
challenge the denial of selection grade. He is challenging the observations in
the impugned order which led to denial of the selection grade. In our view, the
impugned order contained nothing but a correctional suggestion to the High
Court Administration which the Administration has accepted.
24.
It
is only because of the note made by inspecting Judge that the cursory order
passed by the appellant in the Sessions case diluting the charge against the
accused came to the notice of the High Court Administration. It is contended on
behalf of the appellant that in any case the suo-moto Revision has not led to
the reopening of the case under Section 401 of the Code of Criminal Procedure. In
this connection, we must note that by the time the suo-moto Revision was
decided, the accused had already undergone the punishment of rigorous
imprisonment of 5 years. Therefore, the Revisional Court did not deem it fit to
reopen it. The appellant cannot take advantage of this part of the judgment of
the Revisional Court, to challenge the observations of the learned Revisional
Judge making a suggestion to the High Court to scrutinize appellant's record
for the dereliction of duty on his part. The appellant was responsible for an
unjustified dilution of the charge and, therefore, the thorough checking of his
service record was necessary which is, what is directed in the impugned order.
25.
For
the reasons stated above, we find no reason to interfere in the impugned order
making certain observations and suggestions which were necessary in the facts
and circumstances of the case. The appeal is therefore, dismissed, though there
will be no order as to the costs.
........................................J.
( J.M. Panchal )
........................................J.
( H.L. Gokhale )
New
Delhi
Dated:
February 1, 2011.
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