-1- IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO.741 OF 2003 Shri D.K. Rajepandhare, Ex-Joint Civil Judge, Junior Division and J.M., Satara at present residing at Judicial Quarter C/2, Near Remand Home, Sadar Bazar, Satara - 415 001. .. .. Petitioner Versus 1. State of Maharashtra (summons to be served on the learned Additional Government Pleader appearing for State of Maharashtra under Order XXVII, Rule 4, of Code of Civil Procedure,1908). 2. The Honourable High Court of Judicature at Bombay (summons to be served on the learned Registrar, High Court of Judicature at Bombay, Appellate Side, Bombay. .. .. Respondents Mr.A.V. Anturkar for petitioner. Mr.C.J.Sawant, Senior Advocate with Mr.S.R.Nargolkar, AGP and Mr.R.M. Patne, AGP for respondents. ----- CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & CORAM : H.L. GOKHALE & S.P. KUKDAY, JJ. S.P. KUKDAY, JJ. S.P. KUKDAY, JJ. DATE OF RESERVATION OF JUDGMENT : 17th June 2005 DATE OF RESERVATION OF JUDGMENT : 17th June 2005 DATE OF RESERVATION OF JUDGMENT : 17th June 2005 DATE OF PRONOUNCEMENT OF JUDGMENT: 26th July 2005 DATE OF PRONOUNCEMENT OF JUDGMENT: 26th July 2005 DATE OF PRONOUNCEMENT OF JUDGMENT: 26th July 2005 JUDGMENT : (Per H.L. Gokhale, J.) JUDGMENT : (Per H.L. Gokhale, J.) JUDGMENT : (Per H.L. Gokhale, J.) 1. This writ petition filed by a former Joint Civil Judge, Junior Division and Judicial Magistrate, seeks to challenge the order dated -2- 19th December 2002 passed by the Government of Maharashtra compulsorily retiring him after a disciplinary enquiry and a recommendation of the High Court to that effect. The respondents to this writ petition are the State of Maharashtra and the High Court of Bombay through its Registrar, respectively. 2. The short facts leading to this writ petition are as follows:- . The petitioner joined as a Civil Judge, Junior Division on 13th December 1982. During the course of his service, he was transferred from place to place. When he was posted at Satara he received a chargesheet dated 14th September 2000 for certain acts of misconduct committed by him when he was a Civil Judge, Junior Division and Judicial Magistrate at Yeola in District Nashik from June 1994 to May 1997. The charges were principally three-fold. . (i) Firstly, he was charged that during that period he granted bail to the accused persons in two cases viz. CR No.2 of 1995 of Yeola City Police Station and CR No.2 of 1995 of Yeola Taluka Police Station, even though the offences were -3- triable by the Court of Sessions and that too after the Court of Sessions had rejected the earlier applications for bail on merits and that this was done deliberately overlooking the observations of the Sessions Court. He had passed these orders for consideration other than judicial by resorting to corrupt practices. . (ii) The second charge was that he behaved in a vindictive manner with one Advocate Shri V.R. Gaikwad practising at Yeola with a view to harass him. . (iii) Thirdly, he did not follow the proper procedure while dealing with the criminal matters, particularly those arising under Section 125 of the Criminal Procedure Code and in issuing warrants in criminal cases. 3. (i) The petitioner was served with the imputation of charges. In the imputation there was a reference to a third case of granting bail in a case under Section 302, Indian Penal Code being C.R. No.30 of 1995 of Yeola Police Station. The petitioner filed his Written Statement dated 7.11.2000 denying all these allegations and disputing that any case for misconduct was made -4- out. In his submission, there was no corrupt practice involved and his orders were judicial orders which had to be looked at as such, and could not be a basis for a departmental action, assuming that they were wrong orders. He denied vindictiveness against Advocate Gaikwad or not following the correct procedure. . (ii) Thereafter, evidence was led in the Departmental Enquiry. Apart from producing various documents, Advocate Gaikwad was examined in support of the charges. The delinquent filed a pursis that he did not want to lead any oral evidence but filed his statement of defence. Thus, after giving an opportunity to the petitioner and considering the material on record, the Enquiry Officer one Shri S.P. Hayatnagarkar, the then Additional District and Sessions Judge at Nashik, submitted his report of inquiry on 30th April 2002. 4. The report was placed before the Disciplinary Committee of the High Court which decided to accept the same and issued a Show Cause Notice dated 9th July 2002 asking the petitioner to show cause as to why a major penalty should not be imposed against him. The petitioner filed two -5- replies on 12th September 2002, and then on 19th September 2002 but that was not found to be satisfactory and hence, the Disciplinary Committee of the High Court decided to recommend the order of compulsory retirement. The decision of the Disciplinary Authority reads as follows:- " Discussed. Having considered the representations of delinquent Judicial Officer dated 12.9.2002 and 19.9.2002 in response to the show cause notice issued to him in the above mentioned file, in light of material available on record and report of the Enquiry Officer, it was decided to reject the representations of the delinquent Judicial Officer and to accept findings recorded by the Enquiry Officer as the same are well founded. Looking to the gravity of the charges proved, it was decided to impose upon the delinquent judicial officer major penalty of compulsory retirement from service as prescribed under rule 5(1)(vii) of the Maharashtra Civil Services (Discipline and -6- Appeal) Rule, 1979. " The State Government accepted the recommendation and thereafter passed the order of compulsory retirement on 19th December 2002 which is under challenge in the present petition. 5. (i) The petition was filed on 5th January 2003 but does not appear to have been moved for nearly two and half years after the same was rightly removed from the Board of Hon’ble Chief Justice on 10th February 2003. After the matter was mentioned and listed before this Bench, the petition was allowed to be amended twice. Mr.V.R. Kingaonkar, Registrar (Legal), High Court, Appellate Side, has filed a reply affirmed on 8th June 2005 opposing the reliefs in the petition. The reply denies the allegations in the petition and submits that penalty has been imposed after a due departmental enquiry. It is contended that the findings of the Disciplinary Authority are determinative, the petitioner was given full opportunity during the inquiry, and that a second personal hearing at the stage of Disciplinary Authority is not permissible under the rules. It is, however, submitted that there is an alternative remedy of seeking a review under Rule -7- 25A of the Maharashtra Civil Services (Discipline and Appeals) Rules, 1979 (hereinafter referred to as "the MCS Rules"). (ii). Mr.Anturkar, learned Counsel appearing for the petitioner, made a request that though the petition is listed for admission, the same may be heard finally at the stage of admission itself considering that the career of a Judicial Officer is at stake. Mr.Sawant, learned Counsel appearing for the respondents, did not oppose the request and hence, the petition is heard finally. 6. As far as the preliminary submission with respect to the availability of an alternative remedy of review is concerned, Mr.Anturkar submitted that the recommendation in this matter was by the High Court and then the impugned order was passed by the State Government. The Government is certainly not expected to review the order in such a situation. He submitted that even if the relevant rule is read to mean a review to the High Court on the administrative side, inasmuch as a Disciplinary Committee of the Hon’ble Chief Justice and the Senior Judges had taken the decision on administrative side, it would be desirable that the High Court examines -8- the challenge to the order on the judicial side rather than sending the petitioner for the review. We are in agreement with the submission of Mr.Anturkar. In any case, the rule of exhaustion of internal statutory remedies is a rule of self limitation and in appropriate cases the High Court may not insist on exhaustion of this alternative remedy. This view has been taken by the Apex Court in a number of judgments and in the present case also, we feel that it will not be advisable to drive the petitioner to seek a review. 7. The submissions of Mr.Anturkar were broadly twofold. (A) Firstly that, the impugned order was not called for in the facts of the case and that the legality of a judicial order or propriety thereof cannot be subject of a departmental inquiry. (B) Secondly, he submitted that the action against the petitioner was in breach of relevant Rule 9(2) of the MCS (Discipline & Appeal) Rules. 8. For examining the first submission of Mr.Anturkar, we turn to the three charges which were levelled against the petitioner. The first out of them was the most serious one, namely, granting orders of bail in cases where the -9- petitioner did not have jurisdiction and when bail applications were rejected by the Court of Sessions and that this was done by resorting to corrupt practices. We shall advert to this charge a little later. As far as the other two charges, namely, being vindictive to Advocate Gaikwad, practising in the Court of Yeola and not following the proper procedure in criminal matters, particularly under Section 125 of the Code of Criminal Procedure, the same are somewhat interconnected. This is because it is this Advocate Gaikwad who had complained against the petitioner of not following the correct procedures. 9. (i) It is material to note that whereas the two cases referred in charge No.1 (i.e. granting bail when the petitioner had no jurisdiction) are both cases of the year 1995, Mr.Gaikwad had made complaints to the District Judge prior to both these cases. The accused in these two cases were arrested on 8th and 9th January 1995, respectively. Mr.Gaikwad had made complaints to the District Judge of vindictiveness on the part of the petitioner and of not following the correct procedure on 9th December 1994 and 30th December 1994. The first complaint contained -10- in all 21 grievances. Thus Mr.Gaikwad had pointed out that in two Recovery Applications bearing Nos.112/1994 and 143/1994 filed under Section 125 of Cr.P.C., the delinquent proceeded straightway to issue non-bailable warrants against the non-applicants without verifying the service of summons and as to whether the accused-respondents were purposely not remaining present and avoiding payments. Mr.Gaikwad was appearing for the respondents in these matters. The Enquiry Officer examined the record of the two proceedings and found that though the orders state that the non-applicant was avoiding to deposit the money, there was nothing on record to show as to how much amount was due from the non-applicant and how the warrants were justified. This is seen from paragraphs 61 to 64 of the report. In all such cases, a summons is expected to be issued to the non-applicant first. If the non-applicant fails to comply with the summons or order, then the Magistrate may issue warrant. Mr.Gaikwad cited these cases as examples of not following the proper procedure. (ii). Secondly, it is also seen that the delinquent used to resort to send summons by Registered Post. This was obviously contrary to -11- the provisions of Sections 61 to 69 of Chapter VI of Code of Criminal Procedure. In all such matters, the summons is to be first served on the person concerned by the Police officer or by a Court officer under Section 62 and failing that, to be affixed on the conspicuous part of the house of the accused as provided under Section 65. The delinquent tried to defend his actions as stated above by saying that the accused were not paying the amounts and there was nothing wrong in issuing notices by Registered Post. (iii). Obviously, on both these counts, the procedures adopted by him were contrary to the provisions under Section 125 read with Sections 61 to 69 of Chapter VI of the Code of Criminal Procedure and the finding of the Enquiry Officer is correct. 10. (i) As far as the third charge of harassing Mr.Gaikwad is concerned, Mr.Gaikwad mentioned some specific instances. Thus, for example, he had applied for certified copy of the bail application and the order passed in C.R. No.30 of 1995 i.e. the case against one Gopal Agarwal and the learned Judge refused to give a copy thereof. The delinquent stated that the -12- application was rejected because it was vague. This explanation was accepted by the Enquiry Officer. (ii). There were some other instances also with respect to not recording the evidence correctly, or not entertaining the application or to proceed ex-parte in the matter of Mr.Gaikwad. (iii). But the worst case is Summary Case No.366 of 1996 (Pramod Saskar vs. Soma Patil). This Pramod Saskar was supposed to have been beaten up by the respondent-accused who was a Police Constable (Buckle No.1244) attached to the City Police Station Yeola. This Constable had apprehended the tempo of Saskar on 6.9.1994 on the ground of infringement of some traffic rules. It was being run by complainant’s driver one Ashok R. Jorvakar. The complaint of this Saskar was that the accused demanded illegal gratification from the driver, but that was not provided. When the complainant went to the Police Station, he was abused and assaulted. He lodged a complaint with P.S.I. Dhole of the same Police Station who asked him to approach the Criminal Court. The complaint was filed on 15.9.1994. The delinquent directed an enquiry and report under Section 202 of -13- Criminal Procedure Code. Mr.Gaikwad, who was appearing for the complainant, submitted that the enquiry and the report ought to have been obtained from some other Police Station since the accused was a constable at the concerned Police Station. The complaint was dismissed on receiving the report from the concerned Police Station. The matter was carried in Revision No.6 of 1995 and the Revision was allowed by the 2nd Additional Sessions Judge, Nashik, who accepted the submission of Mr.Gaikwad that the enquiry ought to have been directed to some other Police Station and the lower Court had accepted the report blindly. Mr.Anturkar defended the order of the delinquent as the case of a wrong order, at the highest. 11. In his defence, the delinquent made the allegations of mala fides against Mr.Gaikwad by pointing out that there were criminal and civil cases pending against Mr.Gaikwad in his Court. Thus, he referred to Criminal Cases Nos.114/96, 116/96, 227/97, 231/97 and 232/97. Mr.Anturkar submitted that the complaint of vindictiveness was made with a view to pressurise the delinquent. Mr.Gaikwad, however, had pointed out in the enquiry that these were false cases filed against -14- him with the help of some Lawyers and they were filed to create record in the defence of the delinquent. He had further pointed out that later on all those cases were withdrawn unilaterally by the complainants. The delinquent had pointed out that there were certain civil cases and execution proceedings against Mr.Gaikwad. Thus, Civil Suit Nos.106/96 and 105/96 are mentioned as well as Regular Darkhast Nos.17/87 and 17/94. Now, what is material to note is that this darkhast arising out of suit of 1987 is prior to the complaint of Mr.Gaikwad and much prior to the delinquent being posted to the Court in Yeola in 1994. The other suits are much subsequently filed. We are, therefore, of the view that the complaint of Mr.Gaikwad cannot become frivolous or mala fide merely on that ground. The Enquiry Officer rightly held that Mr.Gaikwad was undoubtedly being harassed. 12. As noted above, the charge No.1 is granting bail in two sessions case overlooking the fact that the sessions Court had rejected the bail application of the accused. The first out of two cases was C.R.No.2 of 1995 of the City Police Station of Yeola where the two accused Sanjay Gopalrao Pingale and his mother Savita were -15- arrested on 9th January 1995 for offences under Sections 302 and 498A read with Section 34 of Indian Penal Code for the suspicious death of Laxmi, wife of Sanjay. From the record of the enquiry, it is seen that Savita did not apply for bail in the sessions Court. She did apply for bail before the delinquent on 16.1.1995. In her application, it was stated that she was an old lady having the problem of blood pressure. She was already in police custody for six days. She is required to look after the children. She will not tamper with the record and hence, be released. The application was resisted by the prosecution by stating that the case was exclusively triable by the sessions Court and the investigation was in progress. The delinquent, however, accepted the submission of Savita that she was an old lady. He noted that she was involved in a case exclusively triable by the Court of sessions and punishment would be that of death or life imprisonment. Yet he released her on bail on the PR bond of Rs.5,000/- with two sureties by passing an order under the proviso to Section 437 of Criminal Procedure Code. This order was passed on 16.1.1995. 13. Sanjay applied for bail in the sessions -16- Court through Bail Application No.30 of 1995. Both the accused had been initially remanded to police custody till 16th January 1995. The application of Sanjay came for consideration before the sessions Court at Nashik on 21st January 1995. The learned sessions Judge noted that the accused were facing the charge of murdering Laxmibai by setting her fire in their latrine. The applicant was married to Laxmi on 14th May 1993 and within less than two years, this incident had occurred. She had delivered a male child and was being ill-treated for not bringing precious articles from her parents’ house. It was the case of the prosecution that earlier also an attempt was made to kill her by administering poison. The possibility of suicide was ruled out by the Sessions Judge and he rejected the bail application of Sanjay on 21st January 2005. Sanjay moved a second bail application being Bail Application No.54 of 1994 before the sessions Court on 3rd February 1995. 14. During the pendency of this second bail application, Sanjay preferred another bail application before the delinquent on 10th February 1995 and withdrew the bail application in the sessions Court on 14th February 1995. It was -17- submitted on behalf of the accused that the investigation had been completed which was contrary to the record. It was pointed out that he had one year old son and nobody was there to look after him. It was, therefore, not desirable to detain him in custody. The delinquent observed in his order that the only contention of the prosecution was that the alleged offence was exclusively triable by the Court of sessions. He accepted that objection but all that he stated in justification of grant of bail was that it was not necessary to detain him in jail. The exact sentence in the order giving the only reason for release of Sanjay is as follows:- " I do agree that the alleged offences are exclusively triable by the Court of sessions but that does not mean unnecessarily the accused should be detained in jail." Now, what is material to note is that the delinquent knew that he had already released the mother of Sanjay, which order he had passed on 16.1.1995. She was undoubtedly available to look after the child of Sanjay. The only reason given in the order is that it was unnecessary to detain -18- Sanjay when the investigation was still not completed. As far as Section 437 of Criminal Procedure Code is concerned, a bail in the non-bailable offences cannot be granted by a Court other than the High Court or a Court of sessions. The first proviso in Section 437(1) is the only provision which contains the exceptions, namely, that such a Court may grant bail if a person is under the age of 16 years or is a woman or is sick or infirm. These are the only grounds which are available. None of the grounds was made out in the case of Sanjay and yet the delinquent, who did not have jurisdiction to grant bail, granted it to Sanjay, which order was clearly outside his jurisdiction. 15. In the second case viz. C.R.No.2 of 1995 of the Rural Police Station of Yeola, one Baban Bolij and his mother Satyabhama were arrested on 8.1.1995 under the same sections viz. Section 302 read with Sections 498A and 34 of Indian Penal Code. They were remanded to police custody till 13.1.1995. In this matter, there was a dying declaration of the deceased that she was done away with by pouring kerosene on her on 7.1.1995. This dying declaration was recorded before the Special Judicial Magistrate, Nashik. In this matter, -19- first, a joint application for bail of both the accused was presented before the delinquent. He allowed it partly on 16.1.1995 and the accused- Satyabhama was released on bail on 16.1.1995. Accused-Baban moved Bail Application No.45 of 1995 before the Sessions Court at Nashik. The Sessions Court rejected this application on 7th February 1995. It noted that the other accused i.e. mother-in-law of the deceased was already released by the lower Court on the ground of feminity. The sessions Court further noted that there was a dying declaration and it in terms observed that Satyabhama was released on the ground of feminity and, therefore, ground of parity was not available. The sessions Court thereafter observed that even Satyabhama ought not to have been released and the dying declaration involves the present applicant fully and completely. The sessions Court, therefore, rejected the bail application. Baban moved another bail application before the delinquent on 2nd March 1995 wherein it was stated that the accused had a daughter of 10 months and he should be released to look after her. The Assistant Public Prosecutor objected to it by pointing out that the offence was exclusively triable by the Court of Sessions, investigation was in progress and the report of -20- the Investigating Officer must be called and further that the chargesheet was not yet filed. The learned Judge noted this in his order dated 18th March 1995. He noted the submissions of the Counsel for the accused that the accused had made out a new ground that he was ill and suffering from hyper acidity. In the reasons given by him he stated that "the accused required regular medical treatment. The investigation was over. Another accused was already released" and, therefore, this accused was released on PR bond of Rs.5,000/- with two sureties. Now, it is material to note that here the learned Judge recorded that the investigation was over which was contrary to the record. Besides, he noted that another accused was already released on bail. The Judge knew that he had released the mother-in-law of the deceased on the ground of feminity. That could not be the justification for the release of the accused-husband. Yet he passed the order of bail. 16. In the imputation, another case has been mentioned where one Gopal Agarwal, a businessman from Jalgaon was the accused. He was charged under Section 302 of Indian Penal Code and arrested on 8th March 1995. He moved a bail application in the sessions Court at Nashik on -21- 22.3.1995, but did not press it. He moved a bail application before the delinquent on 31.3.1995 on medical ground and was released on 3rd April 2005. It is material to note that when this third application was pending before the delinquent, Mr.Gaikwad, Advocate, had already made a complaint to the sessions Court and pointed out that this Gopal Agarwal was likely to be released by the delinquent.