KRISHNA PRASAD VERMA (D) THR. LRS. versus STATE OF BIHAR & ORS. on 26 September 2019

Conclusion

KRISHNA PRASAD VERMA (D) THR. LRS.

v.

STATE OF BIHAR & ORS.Civil Appeal No. 8950 of 2011SEPTEMBER 26, 2019

[DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]

Judiciary:

Judicial service – Disciplinary proceedings – Against judicialofficer – On two charges (i) granting bail without noticing orderof superior court and (ii) closing evidence without ensuringproduction of witnesses – Found guilty of misconduct – Proprietyof – Held: Art.235 of the Constitution vests control of subordinatecourts upon High Court – High Courts are also the protectors andguardians of judges falling within their administrative control –In order to ensure independence of subordinate judiciarydisciplinary action should not be taken against judicial officersjust because they passed wrong orders, unless there are clear-cutallegations of misconduct, extraneous influences, gratification ofany kind etc. – The appropriate action for passing wrong orderwould be to record the same on the administrative side and placeit on the service record of the officer concerned and the same canbe taken into consideration while considering career progressionof such officer – If there is continuous flow of wrong or illegalorders, the proper action would be to compulsorily retire thejudicial officer – In the facts of the present case, the delinquentofficer cannot be held guilty of misconduct – The orders passedagainst the delinquent officer are quashed – Constitution of India– Art.235.

Allowing the appeal, the Court

HELD: 1.1 There can be no Rule of Law, there can be nodemocracy unless there is a strong, fearless and independentjudiciary. This independence and fearlessness is not onlyexpected at the level of the Superior Courts but also from theDistrict judiciary. Therefore, it is important that the judiciary atthe District Level and at the Taluka level is absolutely honest,

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Afearless and free from any pressure and is able to decide casesonly on the basis of the facts on file, uninfluenced by anypressure from any quarters whatsoever. [Para 1 and 2] [864-H;865-A-B]

1.2 Article 235 of the Constitution of India vests controlBof the subordinate Courts upon the High Courts. The HighCourts exercise disciplinary powers over the subordinateCourts. The High Courts are also the protectors and guardiansof the judges falling within their administrative control. Actionshould not be taken against judicial officers only because wrongorders are passed. No doubt, there has to be zero tolerance forCcorruption and if there are allegations of corruption, misconductor of acts unbecoming a judicial officer, these must be dealt withstrictly. However, if wrong orders are passed that should not leadto disciplinary action unless there is evidence that the wrongorders have been passed for extraneous reasons and notDbecause of the reasons on the file. If any judicial officer conductsproceedings in a manner which would reflect on his reputationor integrity or there is prima facie material to show recklessmisconduct on his part while discharging his duties, the HighCourt would be entitled to initiate disciplinary cases but suchmaterial should be evident from the orders and should also beEplaced on record during the course of disciplinary proceedings.[Paras 3,4 and 8] [865-C-F; 868-D]

1.3 It is not that if a judicial officer passes a wrong order,then no action is to be taken. In case a judicial officer passesorders which are against settled legal norms but there is noFallegation of any extraneous influences leading to the passingof such orders then the appropriate action which the High Courtshould take is to record such material on the administrative sideand place it on the service record of the judicial officerconcerned. These matters can be taken into consideration whileconsidering career progression of the concerned judicial officer.GOnce note of the wrong order is taken and they form part of theservice record these can be taken into consideration to denyselection grade, promotion etc., and in case there is a continuousflow of wrong or illegal orders then the proper action would beto compulsorily retire the judicial officer, in accordance with theHRules. Unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinaryproceedings should not be initiated merely on the basis that awrong order has been passed by the judicial officer or merelyon the ground that the judicial order is incorrect. [Para 16] [871-E-H]

Ishwar Chand Jain v. High Court of Punjab &Haryana and another(1988) 3 SCC 370 : [1988] 1Suppl. SCR 396 ;Union of India & Ors. v.. A.N.Saxena(1992) 3 SCC 124 : [1992] 2 SCR 364 ; Unionof India & Ors. v. K.K. Dhawan(1993) 2 SCC 56 :[1993] 1 SCR 296 ; P.C. Joshi v.. State of U.P. & Ors.(2001) 6 SCC 491 : [2001] 1 Suppl. SCR 369 ;Ramesh Chander Singh v. High Court of Allahabad &Anr. (2007) 4 SCC 247 : [2007] 3 SCR 198 – reliedon.

2.1 In the present case the main ground to hold theappellant-judicial officer guilty of the first charge is that theappellant did not take notice of the orders of the High Courtwhereby the High Court had rejected the bail application of oneof the accused. The officer may have been guilty of negligencein the sense that he did not carefully go through the case fileand did not take notice of the order of the High Court whichwas on his file. This negligence cannot be treated to bemisconduct. The enquiry officer had not found that there was anyextraneous reason for granting bail. The enquiry officer virtuallysat as a court of appeal picking holes in the order granting bail.[Para 11] [869-F-H; 870-A]

2.2 So far as the second charge is concerned, wherein itwas alleged that the appellant as a Special Judge under NarcoticDrugs and Psychotropic Substances Act, 1985 closed theevidence resulting in acquittal of the accused, the enquiry officeron the basis of the statements of two clerks of the Court hasmade lengthy observations that the appellant did not send anycommunication to the Superintendent of Police, the DistrictMagistrate and other authorities to ensure the production of thewitnesses. According to the enquiry officer, the appellant shouldhave made efforts to approach the senior officials to get thewitnesses produced. The Code of Criminal Procedure or theNDPS Act do not provide for any such procedure. It is the duty A

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Aof the prosecution to produce the witnesses. In the present case,the Public Prosecutor had made a note on the side of the dailyorder-sheet that he is unable to produce the witnesses so theevidences may be closed. While holding the appellant guilty ofmisconduct no reference has been made to the statement of thePublic Prosecutor. The appellant had given 18 adjournments forBproduction of the witnesses to the prosecution in the NDPS case.Such a judicial officer is between the devil and the deep sea. Ifhe keeps on granting adjournments then the High Court will takeaction against him on the ground that he does not dispose ofhis cases efficiently and if he closes the evidence then the HighCCourt will take action on the ground that he has let the accusedgo scot-free. [Paras 14, 15] [870-F-H; 871-B-C]

Case Law Reference

Case Law Reference

ECIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8950of 2011.From the Judgment and Order 05.10.2009 of the High Court ofJudicature at Patna in CWJC No. 3719 of 2009.

Braj Kishore Mishra, Ms. Aparna Jha, Ms. Kriti S., AbhishekFYadav, Advs. for the Appellants.

Sanjay Jain, ASG, Pravin H. Parekh, Sr. Adv., Yogesh Pachauri,Ms. Binu Tamta, Ms. Anil Katiyar, Kshatrshal Raj, Nikhil Ramdev,Ms. Tanya Chaudhry, Ms. Pratyusha Priyadarshi, M/S. Parekh & Co.,Gopal Singh, Srikaanth S., Advs. for the Respondents.G

The Judgment of the Court was delivered by DEEPAK GUPTA, J. (ORAL)

1. In a country, which follows the Rule of Law, independenceof the judiciary is sacrosanct. There can be no Rule of Law, there canHbe no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected atthe level of the Superior Courts but also from the District judiciary.

2. Most litigants only come in contact with the District judiciary.They cannot afford to come to the High Court or the Supreme Court.For them the last word is the word of the Magistrate or at best theSessions Judge. Therefore, it is equally important, if not more important,that the judiciary at the District Level and at the Taluka level is absolutelyhonest, fearless and free from any pressure and is able to decide casesonly on the basis of the facts on file, uninfluenced by any pressure fromany quarters whatsoever.

3. Article 235 of the Constitution of India vests control of thesubordinate Courts upon the High Courts. The High Courts exercisedisciplinary powers over the subordinate Courts. In a series of judgments,this Court has held that the High Courts are also the protectors andguardians of the judges falling within their administrative control. Timeand time again, this Court has laid down the criteria on which actionsshould be taken against judicial officers. Repeatedly, this Court hascautioned the High Courts that action should not be taken against judicialofficers only because wrong orders are passed. To err is human andnot one of us, who has held judicial office, can claim that we have neverpassed a wrong order.

4. No doubt, there has to be zero tolerance for corruption and ifthere are allegations of corruption, misconduct or of acts unbecominga judicial officer, these must be dealt with strictly. However, if wrongorders are passed that should not lead to disciplinary action unless thereis evidence that the wrong orders have been passed for extraneousreasons and not because of the reasons on the file.

5. We do not want to refer to too many judgments because thisposition has been laid down in a large number of cases but it would bepertinent to refer to the observations of this Court in Ishwar ChandJain Vs. High Court of Punjab & Haryana and another1, wherein thisCourt held as follows:

“14. Under the Constitution the High Court has control over thesubordinate judiciary. While exercising that control it is under aconstitutional obligation to guide and protect judicial officers. An 1 (1988) 3 SCC 370

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Ahonest strict judicial officer is likely to have adversaries in themofussil courts. If complaints are entertained on trifling mattersrelating to judicial orders which may have been upheld by theHigh Court on the judicial side no judicial officer would feelprotected and it would be difficult for him to discharge his dutiesin an honest and independent manner. An independent and honestBjudiciary is a sine qua non for rule of law. If judicial officers areunder constant threat of complaint and enquiry on trifling mattersand if High Court encourages anonymous complaints to hold thefield the subordinate judiciary will not be able to administer justicein an independent and honest manner. It is therefore imperativeCthat the High Court should also take steps to protect its honestofficers by ignoring ill-conceived or motivated complaints madeby the unscrupulous lawyers and litigants. Having regard to factsand circumstances of the instant case we have no doubt in ourmind that the resolution passed by the Bar Association againstthe appellant was wholly unjustified and the complaints made byDShri Mehlawat and others were motivated which did not deserveany credit. Even the vigilance Judge after holding enquiry did notrecord any finding that the appellant was guilty of any corruptmotive or that he had not acted judicially. All that was said againsthim was that he had acted improperly in granting adjournments.”

E6. Thereafter, following the dicta laid down in Union of India &Ors.Vs. A.N. Saxena2 and Union of India & Ors.Vs. K.K. Dhawan3,this Court in P.C. JoshiVs. State of U.P. & Ors.4 held as follows:

“7. In the present case, though elaborate enquiry has beenconducted by the enquiry officer, there is hardly any materialFworth the name forthcoming except to scrutinize each one of theorders made by the appellant on the judicial side to arrive at adifferent conclusion. That there was possibility on a given set offacts to arrive at a different conclusion is no ground to indict ajudicial officer for taking one view and that too for allegedGmisconduct for that reason alone. The enquiry officer has notfound any other material, which would reflect on his reputationor integrity or good faith or devotion to duty or that he has been 2 (1992) 3 SCC 1243 (1993) 2 SCC 56H4 (2001) 6 SCC 491

actuated by any corrupt motive. At best he may say that the viewtaken by the appellant is not proper or correct and not attributeany motive to him which is for extraneous consideration that hehad acted in that manner. If in every case where an order of asubordinate court is found to be faulty a disciplinary action wereto be initiated, the confidence of the subordinate judiciary willbe shaken and the officers will be in constant fear of writing ajudgment so as not to face a disciplinary enquiry and thus judicialofficers cannot act independently or fearlessly. Indeed the wordsof caution are given in K.K. Dhawan case and A.N. Saxenacase that merely because the order is wrong or the action takencould have been different does not warrant initiation ofdisciplinary proceedings against the judicial officer. In spite ofsuch caution, it is unfortunate that the High Court has chosen toinitiate disciplinary proceedings against the appellant in this case.”

7. In Ramesh Chander SinghVs. High Court of Allahabad &Anr.5, a three-judge Bench of this Court, after considering the entirelaw on the subject, including the authorities referred to above, clearlydisapproved the practice of initiating disciplinary proceedings againstthe officers of the district judiciary merely because the judgment/orderspassed by them are wrong. It was held thus:-

“12. This Court on several occasions has disapproved the practiceof initiation of disciplinary proceedings against officers of thesubordinate judiciary merely because the judgments/orders passedby them are wrong. The appellate and revisional courts havebeen established and given powers to set aside such orders. Thehigher courts after hearing the appeal may modify or set asideerroneous judgments of the lower courts. While taking disciplinaryaction based on judicial orders, The High Court must take extracare and caution.”

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“17. In Zunjarrao Bhikaji Nagarkar v. Union of India thisCourt held that wrong exercise of jurisdiction by a quasi judicialauthority or mistake of law or wrong interpretation of law cannotbe the basis for initiating disciplinary proceeding. Of course, ifthe judicial officer conducted in a manner as would reflect on AB

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SUPREME COURT REPORTS

Ahis reputation or integrity or good faith or there is a prima faciematerial to show recklessness or misconduct in discharge of hisduties or he had acted in a manner to unduly favour a party orhad passed an order actuated by corrupt motive, the High Courtby virtue of its power under Article 235 of the Constitution mayexercise its supervisory jurisdiction. Nevertheless, under suchBcircumstances it should be kept in mind that the Judges at alllevels have to administer justice without fear or favour.Fearlessness and maintenance of judicial independence are veryessential for an efficacious judicial system. Making adversecomments against subordinate judicial officers and subjectingCthem to severe disciplinary proceedings would ultimately harmthe judicial system at the grassroot level.”

8. No doubt, if any judicial officer conducts proceedings in amanner which would reflect on his reputation or integrity or there isprima facie material to show reckless misconduct on his part whileDdischarging his duties, the High Court would be entitled to initiatedisciplinary cases but such material should be evident from the ordersand should also be placed on record during the course of disciplinaryproceedings.

9. Coming to the facts of this case there are two charges againstEthe appellant, who was a judicial officer. The charges are as follows:

CHARGE-1

“You, Sri Krishna Prasad Verma while functioning as AdditionalDistt. & Sessions Judge, Chapra granted bail to M/s BishwanathRai, Sheo Nath Rai and Pradeep Rai on 11.7.2002 in S.T. No.514Fof 2001 arising out of Chapra (M) Khatra P.S. Case No.453/2000 registered U/s 302/34 I.P.C. notwithstanding the fact thatthe bail petitions of Bishwanath Rai was earlier rejected by thisHon’ble Court vide order dated 27.3.2001 and 4.7.2001 passedin Cr. Misc. No.34144/2000 and 15626/2001 respectively, that ofGSheo Nath Rai vide order 13.2.2001 and 26.11.2001 passed inCr. Misc. No.3387/2001 and Cr. Misc. No.30563/2001respectively and that of Pradeep Rai vide order dated 28.2.2001passed in Cr.Misc. No.3599/2001.

The aforesaid act on your part is indicative of some extraneousHconsideration which tantamounts to gross judicial impropriety, judicial indiscipline, lack of integrity, gross misconduct and an actunbecoming of a Judicial Officer.

CHARGE-2

You, Sri Krishna Prasad Verma while functioning as AdditionalDistrict and Sessions Judge, Chapra with an intent to acquit RajuMistry, the main accused in N.D.P.S. Case No.15/2000 arisingout of Revealganj P.S. Case No.137/2000 (G.R. No.1569 of 2000)registered under sections 22, 23 and 24 of the Narcotic Drugsand Psychotropic Substances Act, 1985 closed the proceedingin great haste resulting in acquittal of Raju Mistry, who wascharged of driving a Jeep bearing No.W.B.C.4049 carrying 90Kg. Charas, without exhausting all coercive methods to recordthe statement of the Investigating Oficer of the case as there isno proof on the record to show that the non-bailable warrantissued against the said Investigating Officer was ever served onhim.

The aforesaid act of yours is indicative of some extraneousconsiderations which tantamounts to gross judicial impropriety,judicial indiscipline, lack of integrity, gross misconduct and an actof unbecoming of a Judicial Officer.”

10. As far as the first charge is concerned, a major fact, whichwas not considered by the enquiry officer, the disciplinary authority aswell as the High Court was that the Additional Public Prosecutor, whohad appeared on behalf of the State had not opposed the prayer of theaccused for grant of bail. In case, the public prosecutor does not opposethe bail, then normally any Judge would grant bail.

11. The main ground to hold the appellant guilty of the first chargeis that the appellant did not take notice of the orders of the High Courtwhereby the High Court had rejected the bail application of one of theaccused vide order dated 26.11.2001. It would be pertinent to mentionthat the High Court itself observed that after framing of charges, if thenon-official witnesses are not examined, the prayer for bail could beremoved, but after moving the Lower Court first. The officer may havebeen guilty of negligence in the sense that he did not carefully go throughthe case file and did not take notice of the order of the High Courtwhich was on his file. This negligence cannot be treated to bemisconduct. It would be pertinent to mention that the enquiry officer A

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Ahas not found that there was any extraneous reason for granting bail.The enquiry officer virtually sat as a court of appeal picking holes inthe order granting bail.

12. It would be important to mention that it seems that later itwas brought to the notice of the appellant that he had not taken noteBof the order of the High Court while granting bail on 11.07.2002.Thereafter, he issued notice to all the three accused on 23.08.2002 i.e.within less than two months and cancelled the bail granted to all thethree accused on 11.07.2002. If he had made the mistake of not seeingthe whole file, on that being brought to his notice, he corrected themistake. After the appellant cancelled the bail and the accused wereCagain arrested, they again applied for bail and this bail application wasrejected by the appellant on 18.12.2002.

13. After rejection of the bail application of the accused, two outof three accused moved the High Court. The High Court granted bailto one of the accused and the bail application of the other was rejected,Dnot on merits but on the ground that he did not disclose the fact that hehad earlier moved the High Court for grant of bail. This itself is clearindicator of the fact that probably even the order passed by the appellantis not an incorrect one.

14. Coming to the second charge, which is under the NarcoticEDrugs and Psychotropic Substances Act, 1985 (hereinafter referred toas the “NDPS”. On 18.07.2002 the appellant, a Special Judge, closedthe evidence of the prosecution which resulted in material witnessesnot being examined and consequently the accused was acquitted. Asfar as this allegation is concerned, the enquiry officer on the basis ofFthe statements of two clerks of the Court has made lengthy observationsthat the appellant did not send any communication to the Superintendentof Police, the District Magistrate and other authorities to ensure theproduction of the witnesses. According to the enquiry officer, this beinga serious matter, the evidence should not have been closed and theappellant should have made efforts to approach the senior officials toGget the witnesses produced. The Code of Criminal Procedure or theNDPS Act do not provide for any such procedure. It is the duty of theprosecution to produce the witnesses. Even in this case, interestingly,the Public Prosecutor had made a note on the side of the daily order-sheet that he is unable to produce the witnesses so the evidences mayHbe closed. We fail to understand how the appellant has been hanged whereas no action has been taken or recommended against the PublicProsecutor concerned. We are constrained to note that the enquiryofficer, while conducting the enquiry, has noted, while considering thearguments of the delinquent official, that he had raised a plea that heclosed the evidence because the Public Prosecutor had made thestatement, but while holding the appellant guilty of misconduct noreference has been made to the statement of the Public Prosecutor.

15. We may also note that the case of the appellant is that hehad given 18 adjournments for production of the witnesses to theprosecution in the NDPS case. Such a judicial officer is between thedevil and the deep sea. If he keeps on granting adjournments then theHigh Court will take action against him on the ground that he does notdispose of his cases efficiently and if he closes the evidence then theHigh Court will take action on the ground that he has let the accusedgo scot-free. That is not the purpose of Article 235 of the Constitutionof India. That is why we again repeat that one of the responsibilitiesof the High Court on the administrative side is to ensure that theindependence of the District judiciary is maintained and the High Courtacts as a guardian and protector of the District judiciary.

16. We would, however, like to make it clear that we are in nomanner indicating that if a judicial officer passes a wrong order, thenno action is to be taken. In case a judicial officer passes orders whichare against settled legal norms but there is no allegation of anyextraneous influences leading to the passing of such orders then theappropriate action which the High Court should take is to record suchmaterial on the administrative side and place it on the service recordof the judicial officer concerned. These matters can be taken intoconsideration while considering career progression of the concernedjudicial officer. Once note of the wrong order is taken and they formpart of the service record these can be taken into consideration to denyselection grade, promotion etc., and in case there is a continuous flowof wrong or illegal orders then the proper action would be tocompulsorily retire the judicial officer, in accordance with the Rules.We again reiterate that unless there are clear-cut allegations ofmisconduct, extraneous influences, gratification of any kind etc.,disciplinary proceedings should not be initiated merely on the basis thata wrong order has been passed by the judicial officer or merely on theground that the judicial order is incorrect.

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[2019] 12 S.C.R.

A17. In view of the above discussion, we allow the appeal, setaside the judgment of the High Court and quash all the orders passedagainst the delinquent officer. He is directed to be given allconsequential benefits on or before 31.12.2019. The appeal is allowedwith costs of Rs.25,000/-.

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Appeal allowed.

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