Judicial Magistrate’s Judgments and Order to be monitored by the Sessions Judge – Bombay High Court

901 cp 127 2019 final14052.doc IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION CONTEMPT PETITION NO. 127 OF 2019 Yogesh Waman Athavale Age 45 yrs. Occup. Advocate R at 102 Sahil Village Apartment Radhakrishna Nagar Raotale At P Tal Chiplun Dist. Ratnagiri Vikram Abasaheb Jadhav Civil Judge Junior Division Judicial Magistrate First Class Chiplun District Ratnagiri High Court of Judicature at Bombay Through the Registrar General High Court Mumbai The State of Maharashtra Through Govt. Pleader High Court A.S. Bombay No.1 Original Contemnor Mr.Murlidhar L. Patil for the Petitioner Mr.S.R.Nargolkar for Respondent No.2 Ms.Tanaya Goswami AGP for Respondent No.3 State : S.S. SHINDE V.G.BISHT JJ RESERVED ON 11TH FEBRUARY 2020 3RD DECEMBER 2020 JUDGMENTthe petitioner has caused appearance for defendants. On an application by the plaintiffs therein an issue was framed namely “4A Do the plaintiff proves that the sale deed executed by defendant Nos.1 to 8 is barred by the provisions of Consolidation and Fragmentation Act for short “the said Act”). On behalf of defendant Nos.1 and 2 the petitioner made an application praying that the said issue be referred to the competent authority under the said Act and in support thereof submitted copy of the judgment and order passed 901 cp 127 2019 final14052.doc by High Court of Bombay in the case of Tukaram Motiram Shinde V s. Vishwanath Khandele1 Respondent No.1 while rejecting the application did not even refer to the said judgment and passed a cryptic order.and the 2003Mh LJ 182 2017 Law Suit734 901 cp 127 2019 final14052.doc mandate of provisions of the Code of Criminal Procedure 1973praying to issue witness summons. His application was opposed on the ground that there was no pleading in that regard The petitioner also placed reliance in National Textile Corporation Ltd. v s. Naresh Kumar Badrikumar Jagad3 to contend that no evidence shall be permitted beyond the pleadings It is alleged that the ratio laid down in the aforesaid exposition has not been followed by respondent No.1 while hearing and allowing both the above said applications. Yet in another case in S.C.C. No. 21303under Section 138 of the Negotiable Instruments Act 1881the petitioner appears for the accused. It is alleged that in the cross examination the complainant clearly and unequivocally admitted the receipt of payments in lieu of the blank signed cheques given to him. However disregarding the said admission 2011) 12 SCC 695 901 cp 127 2019 final14052.doc given by the complainant and judgment cited by the petitioner in the case of John Versus Returning Officer4 respondent No.1 convicted the accused Lastly the petitioner contended that the above instances clearly demonstrate that respondent No.1 willfully disregarded the binding precedents on irrelevant and flimsy grounds. The said act of respondent No.1 not only amounts to misconduct in discharge of duties but also contumacious act. Therefore the petitioner prays for invoking Article 215 of the Constitution of India read with provisions of Contempt of Courts Act 1971. Mr.Patil learned Counsel for the petitioner vehemently submitted before us that respondent No.1 is in habit of overlooking and disregarding the binding precedents of the Superior Courts on flimsy grounds without properly going through the text of those binding precedents. The learned Counsel then invited our attention to the instances which are elaborately quoted herein above and also took us through the orders annexed with the Petition to substantiate his contentions. Mr.Nargolkar representing respondent No. 2 submitted that respondent No.1 was summoned by the learned Guardian Judge of the concerned District on administrative side for counseling and he has been 4. 1997 Law Suit SC 181 901 cp 127 2019 final14052.doc accordingly and suitably counseled and in such circumstances there remains nothing in the Petition and same is liable to be disposed of. We have considered the submissions of the petitioner Mr.Nargolkar appearing for respondent No.2 and learned AGP for respondent No.3. Since the petitioner has quoted the instances in the present Petition we would like to advert quickly to those instances to find out substance therein The first instance pertains to R.C.S. No. 2012 wherein an issue was framed as “4A Do the plaintiff proves that the sale deed executed by defendant Nos.1 to 8 is barred by the provisions of Consolidation and Fragmentation Act It is pertinent to note that pursuant to the framing of the said issue an application came to be moved copy of which is annexed by the petitioner requesting therein that the said issue be referred to the competent authority under the provisions of the said Act and in support thereof so also placed reliance in Tukaram Motiram Shindeand Jagmittar Sain Bhagat & Others Versus Director Health Services Haryana and Others.5 which is apparent from 2013) 10 SCC 136 Respondent No.1 on his part passed order below Exh. 120 after hearing both the parties and rejected the application of petitioner. 901 cp 127 2019 final14052.doc We have carefully gone through the order so passed below Exh 120 in R.C.S. No. 2012 It is true that the entire order is tellingly silent on the above noted authorities. There is absolutely no whisper as to whether those authorities relied on by the petitioner were taken into consideration or not before passing the order below Exh. 120. However learned Counsel appearing for respondent No.2 has informed the Court that already respondent No.1 was informed and he was called by the learned Guardian Judge of the concerned District on administrative side for counseling and he has been accordingly and suitably counseled and in such circumstances there remains nothing in the Petition and same is liable to be disposed of. The next instance is about filing of private complaint No. 1017 under Section 498 A of the IPC wherein the present petitioner represented husband accused. Copy of the said complaintsoliciting the issuance of witness summons which came to be eventually allowed by respondent No.1 without adhering to the ratio laid down in National Textile Corporation Ltd.(supra). We have gone through the order passed below Exh. 79 and 80 in D.V. Application No.315 copy of which is filed on record Though the judgments relied on by the present petitioner are referred in the said order but there is no clarity as to how those judgments were distinguishable and not applicable to the case in question. This is not the way of differentiating the authorities vis a vis the facts and circumstances of the case in hand 901 cp 127 2019 final14052.doc The last instance is in respect of criminal proceeding in S.C.C. No 2134 of 2013 filed under Section 138 of the N.I.Act. According to petitioner although the complainant in his cross examination had clearly and unequivocally admitted the receipt of payments in lieu of blank signed cheques given to him yet accused came to be convicted by overlooking the ratio laid down in the case of John Versus Returning Officersurprisingly there is no comment opinion observation of respondent No.1 about the utility or otherwise of ratio laid down therein. The judicial mind does not reflect it as to how ratio laid down in the said judgment was not applicable to the case in hand. We prima facie intuitively feel that learned Counsel for the petitioner is right when he laments approach of respondent No.1 vis a vis the above noted authorities pronouncements. A common sense would prompt the conclusion that respondent No.1 ought to have carefully gone through the decisions and the ratio laid down therein and then would have formed opinion about applicability or otherwise of the same Unfortunately it is clear that exercise was not properly undertaken and orders came to be passed in oblivion of the pronouncements provisions The learned Counsel for the petitioner firstly placed reliance in Shri Baradkanta Mishra Ex Commissioner of Endowments Versus 901 cp 127 2019 final14052.doc Shri Bhimsen Dixit6wherein the remarks of the petitioner were found objectionable by the High Court of Orissa and therefore the appellant was found guilty of contempt. This was challenged by the appellant before the Hon’ble Apex Court however the Hon’ble Apex Court upheld the findings of the High Court. The case in our hand is not a case of unwarranted remarks at the hands of respondent No.1 The learned Counsel secondly placed reliance in Balkrishna Mahadev Lad vs. State of Maharashtra7. It has been held by this Court that whether it is a civil contempt or criminal contempt the quintessence is that the breach must be a willful breach or willful disobedience or replete with mens rea. If the Judge of the subordinate Court were to commit some error in discharge of his her official or judicial duty or functions that per se cannot be the basis to proceed against the judicial In the case in hand though there is negligence but the same cannot be termed as “willful breach” or “willful disobedience” at the hands of 18. Here we deem it proper to take into account the submission of Mr.Nargolkar. According to him respondent No.1 has already been summoned by this Court on the administrative side and has been 1 SCC 446 2012Mh. L.J 901 cp 127 2019 final14052.doc properly counseled pursuant to the similar complaint of the petitioner. It appears that respondent No.1 has been properly and suitably counseled on the administrative side of the High Court. 19. We hope and trust that in future respondent No.1 will exercise his judicious mind while dealing with judicial work with greater care caution and circumspection. We issue direction to learned Principal District and Sessions Judge with a request to monitor the performance of respondent No.1 for one year henceforth by randomly checking the judgments and orders and keep the High Court informed if required for necessary 20. With the above directions Contempt Petition stands disposed of (S.S. SHINDE J

Summary: In a contempt petition filed by the Petitioner against the Judicial Magistrate, the High Court observed that the Judicial Magistrate did not acknowledge any of the superior court’s judgments that are binding on him. Thus, the Bombay High Court instructed the Sessions Judge to monitor all the judgments and orders passed by the magistrate for one year. This was laid down by Justice V. G. Bhist in the case of Yogesh Waman Athavle vs. Vikram Abasaheb Jadhav &amp; Ors. [Contempt Petition No. 127 of 2019]. The facts of the case are that the Petitioner is an advocate practising in the court of the Judicial Magistrate that is the Respondent in the case. The Petitioner contended that on several occasions the Petitioner cited and submitted judgments of the superior courts but the Magistrate wilfully ignored the judgments and failed to follow precedents laid down by the superior courts. The Petitioner presented 4 instances where the Magistrate consistently and willfully did not follow the binding precedent laid down by the superior courts. Hence, the Petitioner filed a contempt petition against the Magistrate under Article 215 of the constitution and several sections of the Contempt of Court’s Act, 1971. The Respondent had argued that the actions of the Magistrate have already been noted and he has been summoned and counselled by the Principal Judge of the district. The Division bench of the Bombay High Court took note of the actions of the judicial magistrate and stated that the actions of the magistrate display non-application of the ‘judicial mind’. The Court further stated that “We prima facie intuitively feel that learned Counsel for the petitioner is right when he laments approach of respondent No.1 vis-a-vis the above-noted authorities/ pronouncements. Common sense would prompt the conclusion that respondent No.1 ought to have carefully gone through the decisions and the ratio laid down therein and then would have formed an opinion about the applicability or otherwise of the same.” The Court did not take any action against the magistrate as there were no unwarranted remarks by him and nor was there any wilful disobedience by him. However, the High Court instructed the Principal District and Sessions Judge to review the performance of the Magistrate and to review all his judgments and orders for a period of one year and in case of any misconduct, the same must be reported to the High Court. With the above directions, Contempt Petition stands disposed of. Click here to read the judgement