SCA/21899/2005 1 JUDGMENT IN THE HIGH COURT OF GUJARAT AT AHMEDABAD SPECIAL CIVIL APPLICATION No. 21899 of 2005 For Approval and Signature: HONOURABLE MR.JUSTICE MOHIT S.SHAH sd/- and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI sd/- ================================================= 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 their Lordships wish to see the fair copy of the judgment ? No 4 Whether this case involves a substantial question of law as to the interpretation of the constitution of India, 1950 or any order made thereunder ? No 5 Whether it is to be circulated to the civil judge ? No ================================================= YOGESH M.VYAS - Petitioner(s) Versus REGISTRAR & 1 - Respondent(s) ================================================= Appearance : MR JAL SOLI UNWALA for Petitioner(s) : 1, MR JB PARDIWALA for Respondent(s) : 1, GOVERNMENT PLEADER for Respondent(s) : 2, RULE NOT RECD BACK for Respondent(s) : 2, ================================================= CORAM : HONOURABLE MR.JUSTICE MOHIT S.SHAH and HONOURABLE MR.JUSTICE RAVI R.TRIPATHI Date : 14/11/2008 CAV JUDGMENT (Per : HONOURABLE MR.JUSTICE MOHIT S.SHAH) This petition under Article 226 of the Constitution is directed against the High Court order dated 27.4.2005 and the Government SCA/21899/2005 2 JUDGMENT notification dated 16.8.2005 compulsorily retiring the petitioner, a judicial officer holding the post of Civil Judge (SD) and Judicial Magistrate First Class, from service after a disciplinary inquiry. 2. The facts leading to filing of this petition, briefly stated, are as under :- 2.1 The petitioner who was born on 7.5.1955, joined judicial service on 9.11.1981. After his appointment to the post of Civil Judge (JD) and JMFC, the petitioner was posted at Navsari and was thereafter transferred to different places, such as Pardi, Valsad, Devdhar, Bharuch, Savli, Visnagar and Baroda. The petitioner was thereafter promoted to the post of Civil Judge (SD) on 10.6.1996 and was posted at Amreli. 2.2 The petitioner was placed under suspension by order dated 16.12.1997 (which order was implemented on 17.12.1997) in view of the contemplated departmental inquiry on the basis of allegations made against the petitioner that during his tenure as Civil Judge (JD) and JMFC, Visnagar between 15.6.1992 and 12.6.1994, the petitioner had granted bail orders in seven cases where the offences were punishable with life imprisonment being offences punishable under Section 307 IPC. The petitioner was thereafter served with chargesheet dated 3.8.1998, levelling in all 17 charges including charge Nos.4 and 6 which read as under :- (IV) In seven criminal cases (numbers given) “the accused persons were arrested and produced before you for a serious offence punishable U/s 307 of Indian Penal Code for which punishment provided is imprisonment for life and fine and though you were very well aware that cases u/s 307 of IPC are exclusively triabe by the Court of Sessions, and Judicial Magistrate has no jurisdiction to grant bail, you, after accepting huge amounts released the accused persons on bail, in the said matters, holding that there was no prima facie case against the said accused for the offence punishable u/s 307 of IPC. SCA/21899/2005 3 JUDGMENT (VI) In Regular Civil Suit No.56/94 filed by Sumitraben Rameshchandra on 27.5.94, against Naranbhai Prahladbhai Patel & Others, for permanent injunction, you granted ex- parte injunction against the defendant, but on the next day, i.e. on 28.5.94, on the application of the defendant and without giving opportunity of being heard to the plaintiff as provided in Rule 4 of Order 39 of Civil Procedure Code, you, with an oblique motive, modified the said ex-parte order and directed both the parties to maintain status quo and because of the same the defendants took the benefit of putting up a door in the wall adjoining the disputed land and continued the said door under order of status quo.” Seven other charges also pertained to judicial orders passed by the petitioner as Civil Judge (JD) and JMFC at Viramgam. Charge Nos.10 to 13 pertained to the petitioner's conduct at Viramgam regarding the petitioner's dress habits, use of unparliamentary language on dias and maintaining relations with an advocate and with an accused. 2.3 The petitioner submitted his reply to the chargesheet and denied the same. It was also contended that no departmental inquiry could be held in relation to the judicial orders passed by the petitioner which were never challenged by any party and which were not interfered with by any appellate or revisional Court. 2.4 After considering the evidence on record, the Inquiry Officer, a Judge of the City Civil Court, Ahmedabad submitted report dated 22.1.2001 (Annexure-G pages 151 to 219). The findings of the Inquiry Officer were as under :- “Except charge no. 4 and 6 no other charges are proved against the delinquent. So far as charge no.4 is concerned, there is no direct evidence to show that corrupt practice was done by the delinquent Mr Vyas. But he has gone beyond his power in enlarging the accused on bail in case of Section 307 I.P. Code SCA/21899/2005 4 JUDGMENT etc. Thus we can say that there is possibility of the delinquent for making corrupt practice and we can also say that the delinquent is found guilty of aforesaid acts of misconduct. So far as charge no.6 is concerned, order of ad-interim injunction was modified by him without giving an opportunity to the other party and order of status quo was passed by him illegally. It further shows that he is guilty of indulging in corrupt practice and also guilty of the aforesaid acts of misconduct.” 2.5 In view of the above inquiry report, the High Court on the administrative side issued show-cause notice dated 28.2.2002 calling upon the petitioner to show cause why the High Court on the administrative side should not accept the inquiry report and the petitioner should not be visited with a major penalty. The petitioner submitted his reply dated nil (Annexure-I) to the show cause notice. After hearing the petitioner, the disciplinary committee of the High Court submitted a report recommending acceptance of the report of the Inquiry officer and imposition of penalty of compulsory retirement on the petitioner. In absence of any dissent from any other learned Judge of the High Court on the administrative side, the impugned order dated 17.5.2005 came to be passed by the High Court on the administrative side. As regards the defence of the petitioner that departmental inquiry could not be held in respect of judicial orders passed by the petitioner, relying on the decisions of the Apex Court in Union of India vs. KK Dhawan, AIR 1993 SC 1478 and in Union of India vs. Ajay Kumar Patnaik, (1995) 6 SCC 442, the High Court on the administrative side held as under :- “Viewed in light of above stated principles the report of Inquiry Officer with which the High Court concurs establishes that the delinquent by flouting settled principles for grant of bail has acted in a manner as would reflect on his reputation or integrity or good faith or devotion to duty. The material shows that in reckless manner delinquent has exercised judicial powers contrary to well-settled norms. This is certainly unbecoming of a judicial officer. While exercising judicial powers the delinquent had omitted to follow the SCA/21899/2005 5 JUDGMENT prescribed conditions which are essential before enlarging accused involved in serious offences on bail as well as before modifying the order of injunction. This is not a case of mere technical violation or that the order is wrong which can be challenged before higher forum. Many a times it happens that powerful accused having political will prevail upon State from challenging wrong orders. Not only the delinquent has failed to maintain devotion to duty, he has acted negligently and omitted to follow prescribed criteria for grant of bail and passed orders recklessly. Having regard to the facts of the case the High Court is of the view that charge No.IV and VI levelled against the delinquent are proved. It is proved that by implication the delinquent was guilty of corrupt practice as well as of dereliction of duty while discharging judicial function and had acted in a manner unbecoming of a judicial officer. As the delinquent has completed more than 16 years service and he is under suspension since last 7 years, the High Court is of the opinion that punishment of compulsory retirement from service should be imposed on the delinquent. Accordingly, the High Court recommends compulsory retirement of the delinquent from service.” On the basis of the above order of the High Court on the administrative side, the State Government issued notification dated 16.8.2005 compulsorily retiring the petitioner from service. 3. Mr Unwala, learned advocate for the petitioner has raised the following contentions :- (i) As per the settled legal position, no departmental inquiry could have been held against the petitioner in respect of judicial orders passed by the petitioner in discharge of his duties as Judicial Magistrate First Class. None of those orders was challenged before any appellate or revisional Court. Reliance is placed on several decisions of the Apex Court discussed hereinafter. SCA/21899/2005 6 JUDGMENT (ii) The petitioner rendered services as a Judicial Officer at several places from the date of his joining service in the year 1981 till the date of his suspension in December 1997. The petitioner has never been informed about any complaint made against him at any place other than Viramgam. In fact the petitioner was promoted as Civil Judge (SD) on 10.6.1996 and therefore also no complaint should have been entertained in respect of the prior period (15.6.1992 to 12.6.1994) when the petitioner was Civil Judge (JD) and JMFC, Visnagar. (iii) In his entire judicial career spanning over 16 years, the petitioner had passed thousands of judicial orders and hundreds of orders on bail applications. It is unfair to pick up seven orders of bail where the disciplinary authority on the administrative side disagrees with the orders passed by the petitioner on the judicial side and on that basis alone comes to the conclusion of corruption by implication. (iv) Section 437 of Cr PC does not completely prohibit a judicial magistrate from granting bail for an offence punishable with life imprisonment. The Magistrate does have the jurisdiction to hold in the facts of a given case that the allegations against the accused and the material on record are not sufficient to constitute an offence punishable with life imprisonment or with death. Strong reliance is placed on the decision of the Allahabad High Court in Harihar Chaitanya vs. State of UP, 1990 Cr.LJ 2082 in support of the contention that the Magistrate is not bound by the opinion of the Investigating Officer in regard to the applicability of the section under which the alleged offence falls. The Magistrate can prima-facie look into the contents of the FIR and disagree with the opinion formed by SCA/21899/2005 7 JUDGMENT the police about the penal provision which covers the case. Out of seven cases under consideration, in as many as five cases, the learned Public Prosecutor had given consent to the accused being released on bail. Out of the remaining two cases, in one case, the complainant had suffered only a contused laserated wound and was treated in the hospital as an out-door patient. In the seventh case, there were cross- complaints. None of those seven orders were either challenged by the State Government or by the private complainant. The accused in these seven cases were ordinary people whose liberty the petitioner protected by exercising the power under Section 437 of the Cr PC of a Judicial Magistrate First Class presiding over the Magistrate's Court at Taluka headquarters and that even if the petitioner had committed any errors they were errors of judgment and no oblique motive could be attributed to such orders (v) It is submitted that even if the so-called errors could be treated as warranting any punishment, the punishment of compulsory retirement was too harsh, that the petitioner may be directed to be reinstated and that at the most some minor penalty of stoppage of increments without future effect could have been imposed. 4. On the other hand, Mr JB Pardiwala, learned Standing Counsel for the High Court opposed the petition and made the following submissions :- (a) In Prakash Kaur Vs. Sohansingh Khadaksing, 1984(1) GLR 345 and in Thakor Kanjibhai Shakarabhai Vs. Thakor Ambaram Kanjibhai, 1985 GLH (UJ) 23, the Hon'ble High Court on the judicial side had already interpreted the SCA/21899/2005 8 JUDGMENT provisions of Section 437 of the Criminal Procedure Code and held that the Magistrate has no jurisdiction to grant bail for offences punishable with life imprisonment or death. The first proviso to Section 437(1) confers jurisdiction on the Magistrate to release the accused involved in an offence punishable with capital punishment or life imprisonment, where the accused is under the age of 16 years or is a woman or is sick or infirm. None of the seven cases under consideration fell in any of the above categories. There were no special reasons for exercising the powers under proviso to Section 437(1) of the Act, The orders passed by the petitioner in the cases under consideration did not disclose any special reasons. Hence, in view of the aforesaid decisions, the High Court on the administrative side was justified in drawing adverse inferences against the petitioner. (b) For an inquiry to be instituted against a judicial officer under the provisions of Gujarat Civil Services (Conduct) Rules, 1971 it is not necessary that the officer should be charged with corruption. It is sufficient if the officer is guilty of any conduct as mentioned in Rule 3 of the said Rules. (c) Merely because the petitioner was promoted in 1996, that cannot be a ground for exonerating the petitioner of the charges levelled against him in respect of his conduct in the years 1992-94, when the petitioner was Civil Judge, (J.D.), Viramgam. (d) This Court exercising the powers of judicial review under Article 226 of the Constitution would not sit in appeal over the corporate decision of the High Court on the administrative side and interfere with the order of SCA/21899/2005 9 JUDGMENT punishment, merely because this Court may not agree with the findings of the High Court on the administrative side and may have taken a different view of the matter. 5. Having heard the learned counsel for the parties, we have given anxious consideration to the rival submissions. Before dealing with the submissions, we may first set out the provisions of Section 437 as were in force at the relevant time. “437 When bail may be taken in case of non- bailable offence. – (1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer-in-charge of a police station or appears or is brought before a Court other than the High Court or court of Session, he may be released on bail, but – (i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; (ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a non-bailable and cognizable offence. Provided that the Court may direct that a person referred to in clause (i) or clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: Provided further that the Court may also direct that a person referred to in clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking SCA/21899/2005 10 JUDGMENT that he shall comply with such directions as may be given by the Court: (2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of section 446A and pending such inquiry, be released on bail, or, at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as herein-after provided. Sub-section (3) empowers the Court to impose conditions while releasing the accused on bail. (4) An officer or a Court releasing any person on bail under sub-section (1) or sub-section (2), shall record in writing his or its reasons or special reasons for so doing. (5) and (6) ... ... ... (7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered.” 6. The above provisions came to be interpreted by the Apex Court in Gurcharan Singh Vs. State (Delhi Administration), AIR 1978 SC 179 as under :- “19. Section 437, Cr.P.C. deals, inter alia, with two stages during the initial period of the investigation of a non-bailable offence. Even the officer in charge of the police station may, by recording his reasons in writing, release a person accused of or suspected of the commission of any non-bailable offence provided there are no reasonable grounds for believing that the accused has committed a non-bailable offence. Quick arrests by the police may be necessary when there are sufficient materials for the accusation or even for SCA/21899/2005 11 JUDGMENT suspicion. When such an accused is produced before the court, the court has a discretion to grant bail in all non-bailable cases except those punishable with death or imprisonment for life if there appear to be reasons to believe that he has been guilty of such offences. The Courts oversee the action of the police and exercise judicial discretion in granting bail always bearing in mind that the liberty of an individual is not unnecessarily and unduly abridged and at the same time the cause of justice does not suffer. After the court releases a person on bail under sub-sec. (1) or sub-sec. (2) of S. 437, Cr.P.C. it may direct him to be arrested again when it considers necessary so to do. This will be also in exercise of its judicial discretion on valid grounds. 21. Section 437, Cr.P.C. is concerned only with the court of Magistrate. It expressly excludes the High Court and the Court of Session. The language of S. 437 (1) may be contrasted with S. 437 (7) to which we have already made a reference. While under sub-sec (1) of S. 437, Cr.P.C. the words are: "If there appear to be reasonable grounds for believing that he has been guilty". Sub-sec. (7) says: "that there are reasonable grounds for believing that the accused is not guilty of such an offence". This difference in language occurs on account of the stage at which the two sub-sections operate. During the initial investigation of a case in order to confine a person in detention, there should only appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life, whereas after submission of charge-sheet or during trial for such an offence the court has an opportunity to form somewhat clear opinion as to whether there are reasonable grounds for believing that the accused is not guilty of such an offence. At that stage the degree of certainty of opinion in that behalf is more after the trial is over and judgment is deferred then at a pre-trial stage even after the charge-sheet. There is a noticeable trend in the above provisions of law that even in case of such non- bailable offences a person need not be detained in custody for any period more than it is absolutely necessary, if there are no reasonable grounds for believing that he is guilty of such an offence. There will be, however, certain overriding considerations to which we shall refer hereafter. Whenever a person is arrested by the police for such an offence, there should be materials produced before the courts to come to a conclusion as to the nature of the case he is involved in SCA/21899/2005 12 JUDGMENT or he is suspected of. If at that stage from the materials available there appear reasonable grounds for believing that the person has been guilty of an offence punishable with death or imprisonment for life, the court has no other option than to commit him to custody. At that stage, the court is concerned with the existence of the materials against the accused and not as to whether those materials are credible or not on the merits. 22. In other non-bailable cases the court will exercise its judicial discretion in favour of granting bail subject to sub-sec. (3) of Sec. 437, Cr.P.C. if it deems necessary to act under it. Unless exceptional circumstances are brought to the notice of the court which may defeat proper investigation and a fair trial, the court will not decline to grant bail to a person who is not accused of an offence punishable with death or imprisonment for life. It is also clear that when an accused is brought before the court of a Magistrate with the allegation against him of an offence punishable with death or imprisonment for life, he has ordinarily no option in the matter but to refuse bail subject, however, to the first proviso to S. 437 (1), Cr.P.C. and in a case where the Magistrate entertains a reasonable belief on the materials that the accused has not been guilty of such an offence. This will, however, be an extraordinary occasion since there will be some materials at the stage of initial arrest, for the accusation or for strong suspicion of commission by the person of such an offence.” (emphasis supplied) 7. Thereafter, these provisions also came to be interpreted by two learned Single Judges of this Court. 7.1 In Prakash Kaur Vs. Sohansingh Khadaksing 1984(1) GLR 345, a learned Single Judge of this Court held as under :- “Sec. 437 of the Code provides as to when bail may be taken in case of non-bailable offences. There is a dichotomy dealing with non-bailable offences. There are two types of non-bailable offences-offences punishable with death or imprisonment for life and the SCA/21899/2005 13 JUDGMENT rest of the non-bailable offences. As far as the first category of non-bailable offences is concerned, provisions of sec. 437(1) of the Criminal Procedure Code impose a bar to grant of bail by the court or the officer in charge of a police station to an accused person if there appear reasonable grounds, for believing that he has been guilty of an offence punishable with death or imprisonment for life. At this stage the court or an officer in charge of a police station has only to see as to whether there appears to be reasonable grounds that the accused has been guilty of such an offence or not. It is to be noted that what is required to be seen is the reasonable grounds and not the evidence. In this connection the Supreme Court in the case