STATE OF MAHARASHTRA

DR. BUDHIKOTA SUBHARAO

MARCH 16, 1993

[S. RATNAVEL PANDIAN AND R.M. SAHA!, JJ.]

Code of Criminal Procedure 1973:

Section 482. Court proceedings-Mala fides-May be legal or fac- C tuaf---Procuring order on incorrect facts-Reprehensibl.,_practice and procedure.

High Court-Judge may have unchallenged and unfettered power to direct office to list case before him-Judicial discipline restricts excercise of this power.

Judgments-Stn1ctures of 'sharp practices' suppression of facts, obtainjng orders by playing fraud-{Jse of

The respondent, an ex-Naval Officer and Computer Science Graduate was accused of leaking Atomic Energy Secr,, ts_andiolati11g the provisions of the Atomic Energy Act, 1962. He filed an. application for quashing the charge sheet framed under the Official Secrets Act, 1923 and the Atomic Energy Act, 1962 and for release of his passport before the Division Bench of the High Court which passed an order on 13.2.1991 that it may be presented before the trial Judge. On the very next day the Additional Sessions Judge after hearing the parties directed that the passport and identity card or the respondent be returned, and he permitted the respondent to leave India and travel abroad as per his itinerary during the period from 17.2.1991 to 22.2.1991 on executing a personal . bond or Rs.50,000.

The appellant - State was disturbed by this order as serious charges had been levelled against the respondent who had been arrested, earlier, jnst when he was about to leave the country and board the plane, for

leakage of official secrets and whose bail had even, been cancelled by this Court; appeared to be in danger or leaving the country again.

-H Since the order was passed on 14.2.91 and the respondent was to fly

STATE v. DR. BUDHJKOTA 301

on 17.2.91 and 16.2.91 was a Saturday, the State Challenged the correct- A ness of the order passed by the Additional Sessi9ns Judge by way of a writ petition under Article 227 of the Constitution read with section 482 of Criminal Procedure Code and a Single Judge, who under the rules was entitled to hear such a petition, passed an ex-parte order on 15.2~91 staying that part of the order which permitted the respondent to leave the country and directed the application to be listed for further orders on 18.2.91.

The Respondent on coming to know of this order, in the evening, approached the Division Bench of the High Court where themaln petKiu was pending on 16.2.1991, which after making an observation that the C

Public prosecutor ought to have brought it to the notice o'f the Sin; le Judge that the main matter was pending before the Division Bench IUld the trial Judge had passed the order in pursuance of the direction issued by the Division Bench, directed that the matter, being urgent, it should be placed before the same single Judge.

Consequent thereto the parties appeared before the Judge on 16.2.1991 who after hearing them confirmed the interim order.

When the revision petition filed by the State directed against the order acquitting the respondent accused, was taken up for hearing and observations were made, during course of judgment dictated in open court from 5th to 12th October, 1991 against the public prosecutor and the State, the respondent appears to have made a mention on 10th October that the writ petition filed by the State against the order of the trial judge releasing his passport and permitting him to travel abroad may be summoned and disposed of. This requesfwas accepted and on direction or the F Judge the office listed the case beforelliim on Uth October, and when the petition was taken up, on 11th Octcll\er, and the public prosecutor was asked if she had any objection to hearing it was stated by her that it did not survive.

The Judge after completion of judgment in criminal revision on 12th G October, took up the writ petition. The Single Judge passed the order which is the subject matter or the appeal and directed the payment of

-.Y"-- Rs.25,000 compensation for consultancy loss, suffered by the respondent due to the ex-parte order obtained by the State against the order of th• trial judge permitting the respondent to go abroad.

A The State appealed to this Court questioning the validity of the

order of the Single Judge dated 28.10.91. ·-{-

Allo\\ing the State's appeal and the intervention application of the Public prosecutor and setting aside the order dated 28.10.91 passed in the Civil Miscellaneous Writ Petition and dismissing the same as infurctuous this Court.

HELD : 1. Disclosing correct facts and then obtaining order in favour is not same as procuring an order on incorrect facts. Former is legitimate being part of advocacy latter is reprehensible and against profession. [307D]

2. Mala fides violating the proceedings may be legal of factual.

Former arises as a matter of law where a public functionary acts deliberately i~ defiance of law without any malicious intention or im- + proper motive whereas the latter is actuated by extraneous considerations.

D But neither can be assumed or readily inferred. It requires strong evidence and unimpeachable proof. [308C)

In the instant case, neither the order passed by the Single Judge granting ex-parte order of stay preventing opposite party from going abroad was against provisions of law nor was the State guilty of acting E ma/a fides in approaching the Single Judge by way or writ petition. The

order of the trial Judge could not be challenged before the Division Bench, yonder the rules of the court, the correctness of, the order could be assailed only in the manner it was done by the State. [308D]

3. Any party aggrieved by an order is entitled to challenge it in a court of law. Such action is neither express malice nor malice in law. [308E]

4. Sharp practice is not a court language. It is sorry to say so. Facts did not justify it. Legal propriety does not countenance use of such expressions favourably. The Judge in the instant case, used very harsh G language \\ihout there being any occasion for it. [309C]

5. A State counsel with all the aura of office suffers dual handicap of being looked upon by the other side as the necessary devil and the courts too at times, find it easier to frown upon him. The moral responsibility of a state counsel, to place the facts correctly, honestly and fairly H before the court, having access to State records, collpled with his duty to

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STATE v. DR. BUDHIKOTA [SAHA!, J.] 303

secure an order in favour of his client requires him to discharge his duty A responsibly and sensibly. Even so if a State lawyer who owes a special duty and is charge with higher standard of conduct in his zeal or due to pressure, not uncommon in the present day, adopts a partisan appr.oach that by itself is not sufficient to warrant a finding of unfairness or resorting to sharp practice. [309D-E]

6. The public prosecutor may have exhibited more zeal. But that conld not be characterised as unfair. May be it would have been proper

and probably .better to inform the Single Judge about the earlier order passed by the Division Bench. But assuming the public prosecutor did not inform and remained content with its disclosure in the body of the petition C she could not be held to have acted dishonestly. [309F]

7. A Judge of the High Court may have unchallenged and unfettered power to direct the office to list a case before him. But that by itself restricts the exerci•e of power and calls for strict judicial discipline. If the Judge in the instant case, would have avoided sending for and deciding the D petition, which as pointed out by the senior counsel for the State bad become infrnctuous, it would have been more in keeping with judicial culture. [309H, 310A.Bl

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal E No.275 of 1993.

From the Judgment and Order dated 14.10.1991 of the Bombay High Co.urt in CrL W.P. No. 180 of 1991.

Altaf Abmed, Addi. Solicitor Genera~ B.R. Hanc4, Mrs. Manjula F Rao, S.M. Jadhav, AS. Bhasme and A.M. Khanwilkar for the Appellant.

Dr. B. Subh& Rao Respondent-in-person.

V.M. Tarkunde, AM. Khanwilkar and AK. Panda for the Intervenor.

The Judgment of the Court was delivered by

R.M. SAIL\I, J, Strictures of 'sharp practice', suppression of facts, obtaining orders by playing fraud upon the court against State b~ Mr.

Justice Saldanha of the Bombay High Court, while deciding Criminal H

A Miscellaneous Petition filed by the opposite party, accused of leaking official secrets and violating provisions of the Atomic Energy Act, 1962 and awarding Rs.25,000 as compensation, for consultancy loss, suffered by him, due to ex-parte order obtained by the State against order of the trial Judge permitting the opposite party to go abroad, compelled the State to file this

B appeal and assail the order not only for legal infirmities but factual inaccuracies.

Reasons to quote the learned Judge which, 'compelled the consecience of court to pass' the impugned order were, 'the unfortunate proceedings that bristled (s) with ma/a fides'. Basis for these inferences C was, the conclusion by the learned Judge, that the Sta.te, deliberately, procured the interim order by another learned Judge by filing a separate writ petition, when it knew that the main petition for quashing of the proceedings was pending before the division bench (Puranik & Saldanha, JJ.). The learned Jiidge felt, strongly, against the public prosecutor as she D being aware of the proceedings before the Division Bench failed .in her duty of apprising the learned Judge of correct facts.

Was this so? Did the State procure the order by concealing facts?

Was the public prosecutor guilty of violating professional ethics or her duty as respondent officer of the court? What led to all this was an application filed by the opposite party, in the writ petition pending for quashing the charge-sheet framed under (The Indian] Official Secrets Act, 1923 and the Atomic Energy Act, 1962, for .release of his passport on which the division bench of which Mr. Justice Saldanha was a member, passed the order on 13.2.91 that it may be presented before the trial Judge. On the very next day. the Additional Sessions Judge, (hereinafter referred as 'ASJ') after hearing the parties, directed .that the passport and identity card of the opposite party be returned. B~;· further, permitted the opposite party to leave India and travel abroad as per the itinerary during' the period from 17.2.91 to 22.2.91 on executing a personal bond of Rs.50,000. The State was, obviously, disturbed bv this order as serious charges had been levelled G against the opposite p; rty who had been arrested, earlier, just when he was about to leave the country and 'hoard the plane, for leakage of official secrets and whose bail had, even, been cancelled by this court, appeared to be in danger of leaving the country again. Since the order was passed on 14.2.91 and the opposite party was to fly on 17.2.91 and 16.2.91 was H Staturday, the State challenged the correctness of the order passed by the

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STATE v. DR. BUDHIKOTA [SAHAI, J.] 305

ASJ by way of a writ petition under Article 727 of the Constitution read A with Section 482 of Criminal Procedure Code and the learned Judge, who under the rules was entitled to hear such a petition, passed an ex-parte order on 15.2.91 staying that part of the order which permitted the opposite party to leave the country and directed the application to be listed for further orders on 18.2.91. On coming to know of this order, in the evening, B the opposite party approached the Division Bench where the main petition was pending on 16th February, which after making an observation that tbe public prosecutor ought to have brought it to the notice of the learned single Judge that the main matter was pending before the Division Bench and the trial Judge had passed the order in pursuance of the direction issued by the Division Bench, .. directed that the matter, being urgent, it C should be placed before the same learned single Judge. Consequently parties appeared before the learned Judge on 16th February who, after hearing, confirmed the interim order passed, a day earlier.

With confirmation of interim order the proceedings which had com- D menced on the application filed by the opposite party to leave the country came to an end. But the writ petition in which die interim order was passed remained pending. And when the revision lilcd by the State, directed against the order acquitting the accused, was taken up for hearing by Mr.

Justice Saldanha, and observations were made, during course of judgment dictated in open court from 5th to 12th ()ctober 1991 against the public E prosecutot and the State, the opposite party appears to have made a mention on 10th October that the writ petition filed by the State against the order of the trial Judge releasing his passport and perinitting him to travel abroad may be summoned and disposed of. The request was accepted and on direction of the learned Judge the office listed the case F before him on 11th October. When the petition was taken up, on 11th October,. and the public prosecutor was asked if she had any objection to hearing It was stated by her that it did not survive. But the learned Judge after completio11 of judgment in criminal revision on Uth October, appears ' u to have, taken up the Writ petition. It was pointed out by the learned senior counsel for the State that since the criminal revision fili>d by the State G againsi the order acquitting the accused has been dimissed, the writ petition had become infructuous and orders may be passed accordingly.

Yet , die foarned Judge passed the impugned order .. What weighed with the learned Judge to infer ma/a fides against the State Was that the H

A order dated 14.2.91 having been passed in open court in presence of the opposite party and coun.sel for the State, permitting the opposite party to leave the country on 17.2.91, the opposite party, genuinely expected the according to the learned Judge, rightly, that any further application which the State would make could only be addressed to the bench, namely, the B bench of Puranik & Saldanha, JJ., before whom the petition was pending, therefore, the opposite party, justifiably, waited and watched in the bench, whole.day for moving of any application but the State instead of moving any such application filed a fresh writ petition and obtained an ex-parte order, the information of which was given to opposite party in the evening.

The learned Judge was of opinion that it was deliberate as it was known C to the public. prosecutor that the bench on 13.2.91 after scrutinising the papers was of opinion that it was a genuine case in which the Passport should be released and the opposite party should be permitted to travel abroad but due to paucity of time the bench instead of passing the order directed the opposite party to approach the trial Judge. The learned Judge D further held that even though the public prosecutor and the Instpector of

Police knew these facts and that the opposite party was to fly on 17.2.91 yet the notice was obtained from the learned Judge returnable on 18.2.91 by which time the delegation from Reliance Industries of which the accused was to be a member was to have left the country. Since the effect of the interim order and the fixing of the petition on 18.2.91 nullified the opposite E party's going to United States of America, the court felt that the order was obtained not only unfairly, but that it constituted a sharp practice. The motive of the public prosecutor and the State was further attempte~ to be , shown to be dishonest and motivated as the averments in the petition on which the interim order was obtained were false to their knowledge. The F falsity found was that the State had deliberately tried to mislead the court by alleging that the trial was fixed for hearing on 18.2.91 and the same had been adjourned to 24.2.91. The court found that the learned single Judge was misled in passing the order as was clear from ground number six which was to the effect that the trial being fixed for 18 .. 2.91 the trial Judge was not justified in issuing the orders in favour of opposite party. The learned G Judge also felt aggrieved by the conduct of the public prosecutor in not . . informing the learned single Judge that the main writ petition was already listed for hearing before the division bench and that the direction to the ASJ to consider the application for return of passport had been issued by the bench. The learned single Judge was not satisfied with explanation of H the State that a petition nnder Article 227 of the Constitution read with

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STATE v. DR. BUDHIKOTA [SAHA!, J.] 307

Section 482 of Criminal Procedure Code being maintainable before the A learned single Judge under the High Court rules it had no option but to proceed in accordance with law. The learned single Judge pointed out that if the State would have pointed out to the Registry the correct facts then the case could not have been listed before the learned single Judge.

That any party aggrieved by an order passed by a Court is entitled B to approach the higher court cannot be disputed nor can it be disputed that a petition under Article 227 of the Constitution read with Section 482 of the Criminal Procedure Code against the order of trial Judge was maintainable and under rules of the court it could be listed before the learned single Judge only. The State, therefore, in filing the petition against C the order of the sessions Judge did not commit any illegality or any impropriety. A copy of the writ petition, has been annexed to this special leave petition which, does not show any disclosure of incorrect facts or any attempt to mislead the court. Even the learned single Judge did not fmd that the trial was not fixed for 18.2.91. Disclosing correct facts and then D obtairiing order in favour is not same as procurring an order on incorrect facts. Former is legitimate being part of advocacy latter is reprehensible and against profession. But if the State persuaded the court to stay the operation of the order passed by the trial Judge while mentioning the details about the pendency-nf the earlier petition before the division bench and issuing of directions to the sessions Judge to decide the application for E release of passport etc. it is difficult to imagine how any inference of obtaining order on incorrect facts could be drawn. During arguments the opposite party attempted to highlight averments in paragraph six of the writ petition to the effect that the Division Bench had dismissed the application of the opposite party when no such order was passed. The sentence, in fact, reads as under:

'The application was dismissed and directed the respondent to move trial court and further directed the trial court to consider the same in accordance with law'.

True, the application was not dismissed. But the sentence had to be read in its entirety. No court could be misled from the use of the word dismissed

as the directions issued by the court were mentioned correctly. The inference drawn by court and the finding recorded by it of obtaining the order by 'suppression of facts and making positivelx false statements' is H

A factually incorrect and legally unsound. The grief of the opposite party in missing an opportunity of going to the United States and the grievance against functionaries of the State, namely, public prosecutor and prosecuting Inspector can be appreciated. We can, also, y;_sualise the vehemence and eloquence of the opposite party, of which he is capable of, as appeared

B from his submission when he appeared in person in this court, but what has baffled us that the learned Judge was persuaded to record the finding of suppression of facts on such weak and insufficient material.

Mala-ft des violating the proceedings may be legal or factual. Former arises as a matter of law where a public functionary acts deliberately in C defiance of law without any malicious intention or improper motive whereas the latter is actuated by extraneous considerations. But neither can be assumed or readily inferred. It requires strong evidence and unimpeachable proof. Neither the order passed by the learned single Judge granting ex-parte order of stay preventing opposite party from going abroad was D against provisions of law nor was the State guilty of acting ma/a fides in approaching the learned single Judge by way of writ petition. The order of the trial Judge could not be challenged before the Devision Bench. Under the rules of the court, the correctness of, the order could be assailed only in the manner it was done by the State. Any party aggrieved by an order is entitled to challenge it in a court of law. Such action is neither express E malice nor malice in law.

The opposite party was charged with very serious offence. He was arrested when he was about to leave the country. The State was possessed of material that he had, even, applied for matrimonial alliance in response p to an advertisement issued from New York. The order of the trial Judge, therefore, permitting opposite party to leave the country without trial must have created a flutter in the department. It was by all standard a sensational and a sensitive case. The public prosecutor and the prosecuting Inspector who were entrusted with responsibility to prosecute the opposite party must have felt worked up by the order permitting the opposite party to G leave the country. Decision must have been taken to wevnt the opposite party by approaching the High Court by way of a writ petition instead of approaching the Division Bench. Assuming that the Slate took recourse to this method, as it might have been apprehensive that it would not get any order from the division bench, the State could not be accused of mala-fides H so long it proceeded in accordance with law. Apart from that _once it was

STATE v. DR. BUDHIKOTA [SARAI, J.] 309

brought to the notice of the division bench that the State had procured on ex-parte order from the learned Judge who was requested by the division bench to treat the matter urgent and hear parties and the application was heard on 16th February and the learned Judge refused to vacate the interim order and confirmed it the entire basis of ma/a-fide stood demolised. The learned Judge was not justified in blaming the State for getting the notice returnable on 18th February. That was order of the court. In any case the opposite party having appeared on 16th yet the learned Judge having refused to modify his order it was too much to hold the State or public prosecutor responsible for it.

Sharp practice is not a court language. We are sorry to say so. Facts C did not justify it. Legal propriety does not countenance use of such expression favourably. The learned Judge, to our discomfort, used very harsh language without there being any occasion for it. A State counsel with all the aura of office suffers dual handicap of being looked upon by the other side as the necessary devil and the courts too at times, find it easier to D frown upon him. The moral responsibility of a State counse~ to place the facts correctly, honesty and fairly before the court, having access to State records, coupled with his duty to secure an order it favour of his client requires him to discharge his duty responsibly and sensibly. Even so if a State lawyer who owes a special duty and is charged with higher standard of conduct in his zeal or due to pressure, not uncommon in the present E day, adopts a partisan approach that by itself is not sufficient to warrant a finding of unfairaness or resorting to sharp practice. In this case too not more than this appears to have happened; May be the public prosecutor may have exhibited more zeal. But that could not be characterised as unfair. May be it would have been proper and probably better to inform F the learned single Judge about the earlier order passed by the division bench. But assuming the public prosecutor did not inform and remained content with its disclosure in the body of the petition she could not be held to have acted dishonestly.

We are constrained to observe our unhappiness on the manner in G which the writ petition was summoned by Mr. Justice Sald3nba from the office, heard and decided. As stated earlier the writ petition was directed by the leaned Judge to be listed before him, on a mention made by the opposite party in course of dictation of judgment in criminal revision wherein he had made observations against the pnblic prosecutor. A Judge H

A of the High Court may have unchallenged and unfettered power to direct the office to list a case before him. But that by i!!; elf restricts the exercise of power and calls for strict judicial discipline. We do not intend to make any comment but we are of opinioo thatiif the learned Judge would have avoided sending for and deciding the petition, which as pointed out by the B learned senior counsel for the State had become infructuous, it would have been more in keeping with judicial culture.

For reasons stated above by us this appeal succeeds and is allowed.

The order dated 28-10-91 passed in civil miscellaneous writ petition is set aside. It shall stand dismissed as infructuous. The Intervention Application C No.943 of 1992 of the Public Prosecutor is allowed. We make it clear that all the observations and remarks made by the learned Judge against the State and Public Prosecutor shall stand expugned.

N.V.K.

Appeal allowed.

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