W.P.(C.) No5779/2002 Page 1 of 44 * IN THE HIGH COURT OF DELHI AT NEW DELHI + W.P. (C.) No.5779/2002 % Date of Decision: 06.05.2010 KASHI NATH ROY …. PETITIONER Through Mr. Sunil Kumar, Sr. Adv. with Mr. Braj Mishra, Mr. Ujjwal Kr. Jha, Advocates Versus STATE OF BIHAR THR. JOINT SECRETARY & ORS. ….RESPONDENTS Through Mr. Abik Kumar, Advocate for R-1. Mr. P.H. Parekh, Sr. Adv. with Mr. Ajay Kumar Jha, Ms. Pallavi Sharma, Advs. for respondents No.2 and 3. CORAM: HON’BLE MR. JUSTICE ANIL KUMAR HON’BLE MR. JUSTICE MOOL CHAND GARG 1. Whether reporters of Local papers may be allowed to see the judgment? Yes 2. To be referred to the reporter or not? Yes 3. Whether the judgment should be reported in the Digest? Yes MOOL CHAND GARG, J. * 1. This judgment shall dispose of the aforesaid writ petition filed under Article 226/227 of the Constitution of India before the High Court of judicature at Patna, which was transferred to this Court under the orders of Supreme Court dated 08.04. 2002. 2. The writ petition was filed against the order dated 28- 29/06/1996 issued by the Standing Committee of the Patna High Court recommending r W.P.(C.) No5779/2002 Page 2 of 44 3. .emoval of the petitioner from the services of the Bihar State Superior Judicial Service with immediate effect and the notification No.11851 dated 02/11/1996 issued by the State of Bihar after accepting the recommendations of the Standing Committee issued under Rule 3(vii) of Patna High Court Rules 1916 (hereinafter referred to as the rules) in accordance with the provisions contained under Article 235 of the Constitution of India. 4. The petitioner entered into Bihar State Superior Judicial Service as Munsif on 22/10/1965 and was promoted to the post of District and Sessions Judge. On receipt of certain complaints it was decided by the High Court of Judicature at Patna through its Standing Committee to initiate disciplinary proceedings against the petitioner as per the communication issued on 17.5.1994. A memorandum of charge was served upon the petitioner dated 22/09/1994. The said memorandum was supplemented, as amendments were made in charge No.VI. Statement of allegations was also accordingly modified. 5. The charges read as under:- (Article of Charge) Charge – I Shri K.N. Roy while posted as incharge Sessions Judge, Munger, granted bail to accused Lakshman Ram on 17.8.1991 in Barbigha P.S. Case No.48/91 regd. u/s 395 IPC, vide Bail applications NO.1146/1991 and to other two FIR named accused persons, namely, Naru Ram @ Narmad Ram and Sato @ Satyendra Ram vide B.A. No.1144/1991, although these accused persons had been named by the informant and 10-12 witnesses, and had also been identified by 9(nine) W.P.(C.) No5779/2002 Page 3 of 44 witnesses in T.I. Parade. Further, the prayer for bail of the said accused Lakshman Ram had been rejected by the High Court on 8.5.1991 in Cr.Misc. No.4880/1991. Subsequently, the bail granted by him to the aforesaid accused persons were also cancelled by the High Court by order dated 28.1.1993 by Hon‟ble Mr. Justice Choudhary S.N. Mishra in Cr.Misc.No.12034/1991 observing as follows:- “While parting with the order, I must opine that by the aforesaid act, it remain not at all doubtful that this officer has intentionally exceeded and/or transgressed his limits by avoiding and in not maintaining the established decorous norms of the Institution……..” Charge – II Shri. K.N. Roy while posted as District and Sessions Judge, Saran appointed 31 Class IV employees in Saran Judgeship vide his order No.30N/94/2/94 dated 6.1.1994 although there were no vacancies in class IV establishment of the said judgeship. Further in making such appointment, he also violated the instructions contained in Court‟s letter No.511-45 dated 8.2.1991, where in the direction of the court was that appointments could be made only after adjustment of the staff of the vacant courts. As reported, as on 6.1.1994, the following class IV staff were recruited in the Judgeship of Saran (a) Class IV staff other than Orderlies (Process servers, Malis, Sweepers, etc.) -61 posts (b) Staff of 31 Courts functioning on 6.1.1994 -67 posts (c) Staff Car Driver - 1 post (d) Staff of 12 vacant courts - 26 posts (e) Class IV staff required in office according to Khalilur Rahman‟s Report - -8 posts …………………… - 163 posts As against the total requirement of the said 123 posts, 156 Class IV staff were already working and there were only 7 vacancies which could be adjusted by Class IV staff of 12 vacant courts as W.P.(C.) No5779/2002 Page 4 of 44 shown above, but he has made appointment of the aforesaid 31 class IV employees allegedly for some illegal gains. Charge-III While posted as District & Sessions Judge at Khagaria, Shri K.N. Roy had granted bail to the main assailant, accused Sangahi in Parbatta P.S. case No.125/93, regd. U/s 147/148/149/302 IPC and 27 of the Arms Act on 25.2.1994, vide B.A. NO.865/93, although the direct allegations against the said accused was that he fired from a country- made pistol upon the deceased Sudhir Choudhary hitting on his chest as a result of which he died and despite the fact that the statements of witnesses recorded u/s 164 Cr.P.C. and also noted in the case diary had supported that it was accused Sangahi who had fired upon the deceased. Charge-IV Shri. K.N. Roy while posted as District & Sessions Judge, Saran, Chhapra had granted bail to accused persons in the following cases on extraneous considerations allegedly for some illegal gains even when in some of the cases the prayer of the accused concerned for grant of anticipatory bail had been rejected by the High Court; (a) He granted provision bail to accused Kamal Singh on 9.6.1992, in Sessions Trial No.59/92, although his prayer for bail had been rejected by the High Court on 18.2.1992, in Cr.Misc. No.12876/91. Subsequently, he also extended the period of the said provisional bail of the said accused from time to time and ultimately transferred the case to the court of VIth Addl. Sessions Judge, Chhapra, who also extended the said provisional bail of the said accused till 19.9.1992 in two spells but it appears his prayer for bail was rejected and he was taken into custody on 18.9.1992. (b) He granted provisional bail to accused Brahmadayal Singh on 15.6.92 in Masrakh P.S. W.P.(C.) No5779/2002 Page 5 of 44 case No.119/92, Regd. U/s 447/324/307/302/34 IPC and 27(A) of the Arms Act, till 21.6.1992 on the ground of Shradh of his father with a direction to surrender on 22.6.1992, although his prayer for bail had been rejected by the High Court on 13.12.1991 in Cr.Misc. No.13272/91. Further instead of ensuring his surrender, he again granted provisional bail to the said accused on 22.6.1992 till 29.6.1992 on the ground of his illness. On 30.6.1992, the said accused Brahmdayal Singh did not appear before Judicial Magistrate as a result of which his bail bond was cancelled and warrant of arrest was issued for his appearance on 13.10.1993 but it appears that he remained absconding till 13.1.1994. It further appears that the said accused had filed Cr.Misc. No.6427/1992 for bail before the High Court and during the pendency of the said bail application before the High Court, Shri K.N. Roy had granted bail to the said accused. Consequently, the bail application in this Court was dismissed as withdrawn. (c) He granted anticipatory bail to accused Shalini Mishra on 30.05.1992 in Chhapra Town P.S. Case No.165/90 regd. U/s 363/365 and 366(A) of the IPC, vide A.B.P.No.317/1992 after taking into consideration the statements of the victim girl of the case u/s 164 Cr.P.C., although her prayer for anticipatory was rejected by the High Court. (d) He granted bail to accused Anil Kumar Ojha on 1.5.1992 in Isuapur P.S. Case No.13/1991 regd. U/s 147/148/149/307/324/323/302 IPC, although his prayer for anticipatory bail had been rejected by the High Court on 19.12.1991 in Crl.Misc. No.11331/1991 and he had been directed to surrender before the Court concerned within four weeks from the date of the order of the High Court and apply for regular bail but he had not complied with the said order of the High Court. (e) He granted anticipatory bail to accused Jhulan Singh in Isuapur P.S. Case No.94/91, regd. u/s 302/201/304(B)/34 IPC and u/s 3 and W.P.(C.) No5779/2002 Page 6 of 44 4 of the Dowry Prohibition Act. He also granted anticipatory bail to accused Renu Devi, wife of the said accused Jhulan Singh on 16.7.1992 vide A.B.P. No.391/92 after taking into account the statements of husband of the victim girl, the younger brother of accused Jhulan Singh, which were recorded u/s 164 Cr.P.C. wherein he had stated that his wife had been ailing since long and she died of disease, although the allegations against the accused persons were that they were demanding T.V., VCP, etc. from the informant of the case and were torturing Gyanwati Kumari the victim girl. (f) He granted bail to accused Sunayana Devi and Priyanka on 25.7.1992 vide A.B.P. NO.381/1992 in Deoriganj P.S. Case No.38/91, regd. u/s 304(B) of the IPC, although the allegations against the accused Sunayana Devi was that she demanded Motorcycle and a T.V. as dowry from Protosh Kumar, Son of the informant, and that these two accused persons alongwith Ajay Kumar Singh, Asheshwar Singh and Lallu Kumar Singh s/o Asheshwar Singh were alleged to have poured Kerosene Oil on the body of the victim girl Kiran Kumar, set fir, committed her murder and caused her dead body to disappear. (g) He stayed the arrest of Shibrati Devi by order dated 8.7.1992 which was extended till 11.8.1992 from time to time vide ABP NO.369/1992 in Taria P.S. Case No.51/92, regd. u/s 304(B) 201/34 IPC, although the allegation against her was that she alongwith her son, Krishna Thakur, were demanding dowry from the victim girl Usha Devi and they alongwith their associates, had committed murder of Usha Devi by burning her in fire and caused the dead body of Usha Devi to disappear. (h) He stayed the arrest of accused Indarshan Singh on 18.5.1992 and subsequently granted him anticipatory bail on 26.5.1992 vide ABP NO.274/92, in Jalalpur P.S. Case No.97/92, regd. U/s 147/148/149/323/324/307/379 IPC and Section 27 of the Arms act on the ground that injury report had not been produced before him, W.P.(C.) No5779/2002 Page 7 of 44 although the allegation against the accused was that he caused injury on the hand of the informant of the said case by means of Bhala. (i) He granted regular bail to five accused persons of Janta Bazar P.S. Case No.17/92, regd. U/s 147/148/149/323/324/307/379 IPC although the allegations against them were that they alongwith accused Nathuni Prasad varibusly armed with Bhala, Garasa and Lathi etc. assaulted the informant Chuni Lal Prasad and his nephew and snatched away a wrist watch of the informant. (j) He granted anticipatory bail to accused Chandeshwar Singh and Ramayan Singh on 10.4.1992, vide ABP No.206/92 in Dighwara P.S. Case No.22/92, regd. U/s 147/148/149/323/324/341 of the IPC and 27 of the Arms Act, holding that the allegations against them were for assaulting the informant with lathis, although the allegations in the said case was that accused Bodha Singh along with five other accused persons including the aforesaid two accused persons variously armed with pistol, farsa etc. assaulted the informant and caused injury with Farsa on the head of the informant and on the right hand of the brother of the informant, Ram Swaroop Singh. Further, accused Pasupati Singh caused Farsa injury on the leg of Siya Ram Singh, another brother of the informant and accused Lala Singh fired three rounds from his pistol aiming at the informant though the informant managed to escape injury from these firearms. (k) He granted provisional bail to accused Ramanuj Singh and Krishna Singh on 8.9.1992, vide A.B.P. No.839/1992 and to accused Ramashanker Singh on 14.9.1992 vide A.B.P. No.846/92, in Amnaur P.S. Case No.120/1992 regd. u/s 302/201/376/34 IPC holding them to be responsible only for disposal of the dead body of the victim girl Bibha Kumari, although the allegations in the case were that accused Umesh Singh, who had an illicit connection with the said victim girl Bibha Kumari, the daughter of informant of the case, aged 14 years, committed W.P.(C.) No5779/2002 Page 8 of 44 rape on her on 24.8.1992 in absence of the informant. Subsequently, when this news spread in the village, the said accused persons administered poison to Bibha Kumari and killed her. Thereafter they kept the dead body concealed in their house and in the night took the dead body to the burning ghat and destroyed it by pouring kerosene oil and burning it. (l) He had granted bail to accused Manoj Singh, vide B.P. No.1035/92, in Masrakh P.S. Case NO.20/92, regd. U/s 307/323/325 of the IPC, subsequently converted into a case u/s 302/ IPC although the informant in her protest petition named Manoj Singh and Dilkishore Singh as the persons who committed murder of her husband. Further, from the statements of the informant Sunita Devi and Mathura Sah, the father of the deceased, recorded u/s 164 Cr.P.C. It appeared that the aforesaid two accused persons took away the deceased with them, assaulted him with lathi and pistol as a result of which he died in the way while taking him to the Hospital. He is further alleged to have granted anticipatory bail to the said accused Dilkishore Singh. (m) He granted stay of arrests of accused Lallan Singh, Saheb Singh and Moghul Miyan without any authority of law on 28.4.92, vide A.B.P. No.225/92, in Chhapra Muffasil (Jalalpur) P.S. Case No.34/92, regd. u/s 409/420/ of the IPC which was extended on 18.4.92, 27.5.92, 15.6.92, 4.7.92, 22.7.92, 14.8.92, 4.9.92, 1.10.92, 6.11.92, 20.11.92, 11.12.92, 11.1.93, 11.2.93, 15.3.93 and again on 30.4.93 and lastly on 15.5.93, although the allegation in the case against the accused persons was that they misappropriated a sum of Rs.82,106/- of Jawahar Rojgar Yojna. Further the said A.B.P. No.225/92 was dismissed as withdrawn on 31.5.93. (n) He had stayed the arrest of accused Binda roay, Sanyogi Devi and Sunayna Devi on 26.6.94, vide A.B.P. No.368/92, in Masrakh P.S. Case No.69/92, regd. u/s 323/498 of the IPC and the said stay of arrest was extended by him on 7.7.92, 16.7.92, 27.7.92 and 10.892 on the ground of W.P.(C.) No5779/2002 Page 9 of 44 non-receipt of case diary and finally the anticipatory bail was granted to Chandeshwar Roy and four others all FIR named accused persons of the case by order dated 15.9.92 passed by the 2nd Addl. Sessions Judge, Saran (o) He had granted regular bail to accused Mukhtar Miyan and Aas Md. Miayan on 5.9.92, in Garakha P.S. Case No.125/92 regd. U/s 498(A) IPC and Section 3 and 4 of the Dowry Prohibition Act. He is further alleged to have granted provisional bail, to accused Rahman Ansari on 27.1.93 which was extended on 6.2.93 and 16.2.1993 and lastly he had confirmed the said provisional bail of the said accused Rahman Ansari on 17.2.1993, CHARGE V Shri. K.N. Roy by his order passed in Cr.Revision No.201/92 had set aside the order dated 18.9.1992, passed by Shri M.M. Singh, Judicial Magistrate, Chhapra, taking cognizance of case No.C1066/92 and thereby allowed the said Cr. Revision and remanded the case back to the court of C.J.M., Saran, with a direction to pass fresh order after examining the complainant and giving his finding on the point whether petitioner No.7 was a juvenile or not as she had described her age to be 14 years and if it was so, then she came under the category of juvenile as defined u/s 2(h) of the Juvenile Justice Act triable by the Court of CJM only. Such order was passed by Sri K.N. Roy ignoring the principle of law that in complaint petitions generally age of the accused is not mentioned and cognizance of the offence is taken and not of the accused and that such matters should be considered only after appearance of the accused. CHARGE VI Shri. K.N.Roy while posted as District and Sessions Judge Chapra is also alleged to have earned Rs.25 Lakh by corrupt practices and used to give preference to a set of lawyers in cases of serious nature and passed different orders in some other cases of similar nature. He is further alleged W.P.(C.) No5779/2002 Page 10 of 44 to have taken a sum of Rs.60,000/- for granting bail in one murder case through „Mahanth‟ of Sonepur, a sum of Rs.35,000/- per candidate through Sri Ramsewak Singh, Marketing Officer in making appointment in Civil Courts, Chhapra and a sum of Rs.1,00,000/- for allowing permanent construction on the land of civil court, Chapra. It is further alleged that a sum of Rs.25,000/- was realized for settlement of a pond but a sum of Rs.2,000/- only was shown on paper in connivance with Sri Thakur Prasad Singh, an Officer of the Fishery Department. Amendment in Charge No.VI (though mentioned as Charge no. vii) of Annexure-I (Article of Charges). (ii) Sri K.N. Roy while you were posted as District and Sessions Judge, Chapra, settled several shops as shown in Column (A) of the Inspection Report of the then Registrar (E), dealing in different articles which were not in accordance with the guidelines given under Rule 28 (ii) and 29 of the Bihar Government Estate (Khas Mahal Manual). You also settled several shops as shown under Clause (B) of the report and the settlees made pucca construction with your connivance without seeking any permission from the Government. You allowed pucca construction of 12 shops as shown in Column „C‟ of the report which was constructed by demolishing the southern boundary wall of the Civil Court Building. You as District & Sessions Judge, Chapra, settled the shops as shown in Clause „D‟ of the report for particular purposes but the settlees were carrying out business violating the terms and some of them were found to have sublect the same. There were few shops as show in clause „E‟ of the report whose licences were not renewed for 1993-94 and even then they were being run unauthorisedly. Most of the shops as mentioned in different clauses of W.P.(C.) No5779/2002 Page 11 of 44 the report, as stated above, were for the purposes other than to cater the needs of litigant public. 5. Reply was sought to the Memo of Charges from the petitioner. After response of the petitioner was received, it was decided to hold an inquiry into the charges. Justice P.K. Deb of the Patna High Court was appointed as the enquiry officer. The petitioner participated in the enquiry. A report was given by the enquiry officer holding the petitioner guilty of charge No.I, II, IV (a)(b)(g)(h)(m)(n) and VI. As per the enquiry report the petitioner was held guilty of gross negligence of duty amounting to misconduct. The findings of the enquiry officer can be summarized as follows: - (a)Charge No.1 related to grant of bail to accused in a case registered under section 395 of I.P.C., even though the accused had been named by the informant and 10-12 witnesses and had also been identified by 9 witnesses in identification parade. Enquiry Officer held that the order granting bail mentioned rejection of bail by the predecessor Sessions Judge some days earlier but there was no mention that bail prayer was rejected by High Court on 8.5.1991 in Criminal Misc. No. 4880/1991. Petitioner admitted in his petition that due to inadvertence he missed out the fact that bail application of accused persons had been rejected by the learned Sessions Judge and had committed mistake in granting bail. However, the allegation that bail order was procured from the petitioner on extraneous consideration could not be proved, as it was very difficult to get any direct evidence. However, the petitioner was held liable for judicial indiscretion. (b)Charge No.II related to appointment of 31 Class IV employees in violation of High court‟s instructions and inspite of there being no vacancies. This charge was held proved against the petitioner. It was found that petitioner had W.P.(C.) No5779/2002 Page 12 of 44 not taken any report regarding the vacancies either from the Registrar of the Civil Court or from the Establishment Assistant. Two other officers who were part of the committee formed for making appointments apart from the petitioner were never involved in the process of calculation of vacant posts. The advertisement was made by pasting a notice on the Notice Board of the District Judge and Employment Exchange did not send any name. Only 3 applicants out of 5000 applicants from the advertisement of 1990 had been appointed and the rest 28 appointments were made from the fresh candidates who made applications on the basis of pasted notice board advertisement. The petitioner was under order of transfer when these appointments were made on 6.1.1994. There was no vacancy of Grade IV employees in the judgeship of Saran either in 1990 or in 1991-92 and it was already over-staffed. The Standing Committee of Patna High Court vide its Resolution dated 23.8.1994 resolved that 31 appointments were made without there being any vacancy should be terminated. Writ Petition challenging order of termination was dismissed. The Petitioner violated the instructions of the High Court dated 8.2.1991 whereby the District Judges were asked to strictly follow the instructions to decide fresh vacancies of Class III or Class IV employees after making adjustment of the staff in the vacant courts against the existing vacancies. The appointments were made after receiving the transfer order from that station. Prior consultation and approval was never taken regarding the vacancy position. All these revealed inefficiency of the petitioner and serious lapse in administrative performance. Non-following of strict instructions of High Court and making appointments in hot haste when being under order of transfer made the officer liable of dereliction of duty which amounted to misconduct. (c)Charge No.III was held to be not proved. (d)Charge No. IV related to grant of bail to accused persons in various cases on extraneous considerations allegedly for some illegal gains even when in some of the cases the prayer of the accused persons for grant of anticipatory bail W.P.(C.) No5779/2002 Page 13 of 44 had been rejected by the High Court. As far as Charge No.IV (a) was concerned it was held that petitioner should have referred the accused to move the High Court for the provisional bail without taking the burden on himself once the bail had been rejected by the High Court. (e)As far as Charge No.IV (b) is concerned it was found that admittedly on the date when the provisional bail was granted by the petitioner, another bail petition was pending before the High Court. This was specifically mentioned in the petition filed by the accused. Worst part of it was that after such provisional bail was granted, it was extended. When the High Court was in session of the matter it was definitely beyond his jurisdiction to interfere, even for grant of provisional bail whatever be the circumstances. He ought to have referred the accused to move for provisional bail to High Court where his prayer for bail was pending. There was no evidence regarding the allegations that these orders had been procured by the accused on extraneous considerations but the way the matters were dealt with in both cases, judicial discretion in grant of bail was not exercised by the petitioner properly. (f)Charges IV (c), (d), (e), (f) & V were held not proved. (g)Charges IV (g),(h),(m) and (n) related to grant of bail to accused persons for cases registered under 304B/201/34 IPC and Section 147/148/149/323/324/307/379 IPC and staying the arrest of the accused. The Petitioner had passed an interim order staying the arrest in all these cases while considering the pre- arrest bail under Section 438 of Criminal Procedure Code. There was no scope of any such interim order within the scope of Sec 438 of Cr.P.C. as held by Patna High Court in the case reported in 1987 PLJR 365. It was held that a Senior Sessions Judge cannot