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ARVIND KUMAR TEWARI AND ANOTHER versus STATE OF U.P. AND ANOTHER

High Court of Judicature at Allahabad

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Arvind Kumar Tewari And Another v. State Of U.P. And Another - CRIMINAL MISC. WRIT PETITION No. 7218 of 2004 [2005] RD-AH 1535 (17 June 2005)

 

This is an UNCERTIFIED copy for information/reference. For authentic copy please refer to certified copy only. In case of any mistake, please bring it to the notice of Joint Registrar(Copying).

HIGH COURT OF JUDICATURE OF ALLAHABAD

Court No. 10

Crl. Misc. Application No. 5784 of 2005

 

Subodh Kumar Bhatt                                Applicant

In

             Crl Misc. Writ Petition No. 7218 of 2004

Arvind Kumar Tewari & others                   Petitioners.

Vs.

State of U.P. & others                               Respondents.

                  ***************

Hon. A.K.Yog,J.

Hon. Vikram Nath, J.

Sri Subodh Kumar Bhatt, District & Sessions Judge Bagpat, has filed this application for expunging adverse remarks passed against him in the judgment and order dated 05.11.2004  passed by learned Single Judge while finally allowing Crl. Misc. Writ Petition No.7218 of 2004.

The facts giving rise to the afore mentioned application are that the Chief Judicial Magistrate, Ghazipur passed an order dated 05. 04.2004 in Case Crime No. 103 of 2004, under sections 323/506 IPC, P.S. Kotwali, District Ghazipur, taking cognizance upon the police report. Accordingly the Chief Judicial Magistrate directed for registration of the case and for issuing summons requiring the accused persons to appear on 21.05.2004 in Court. On 21.05.2004 the accused were not present. The Chief Judicial Magistrate again directed for issuing summons to the accused fixing 21.06.2004. Again on 21.06.2004 the accused were not present and the Chief Judicial Magistrate directed for issuing summon to the accused fixing 31.07.2004. On 31.07.2004 again accused were not present and the Chief Judicial Magistrate directed for issuing summons to the accused fixing 27.08.2004.

The accused persons Arvind Tripathi and Sidhdhant Tewari filed Criminal Revision No. 332 of 2004, before District & Sessions Judge, Ghazipur for quashing aforesaid order dated 31.07.2004 and against taking cognizance. The prayer clause of said Criminal. Revision also referred to "iz'uxr rych uksfVl" "(i.e. order dated 31.07.2004) without reference to order dated 05.04.2004. Copy of Memorandum of said Criminal Revision is Annexure 5 to the affidavit filed in support of the Application.  The said revision was dismissed by the District & Sessions Judge, Ghazipur vide order dated 27.08.2004 holding that the order dated 31.07.2004 impugned in the revision did not fall in the category of case decided and being an interlocutory order the revision was not maintainable in view of Section 397(2) Cr.P.C.

The accused Arvind Tewari and Sidhdhant Tewari preferred Criminal Writ Petition No. 7218 of 2004 before this Court, which was allowed vide judgment dated 05.11.2004 holding that summoning order dated 05.04.2004 was revisable under Section 397 Cr.P.C. and accordingly the matter was remanded back to the District & Sessions Judge, Ghazipur to admit the revision and decide the same on merits. While allowing the writ petition this Court passed strictures/adverse remarks against the Applicant Sri S.K. Bhatt, the then District & Sessions Judge Ghazipur.

The adverse remarks made in the judgment dated 05.11.2004 are quoted hereunder:-  

" It is really a very sorry state of affair that a Sessions Judge who is heading the district judiciary, is in utter ignorance of the basic principle of the law so elaborately pronounced by the Hon'ble Apex Court. Now the judicial officers in this State are provided with residential library and necessary grant is also placed at the disposal of the Sessions Judge to contribute a number of journals but probably the Sessions Judge has hardly any time to look into such journal to apprise themselves with such an established principle of law. If this is the standard of knowledge at this level, what guidance can be expected by the Sessions Judge to his subordinate officers and especially the officers who join the services afresh."

The applicant against whom the strictures/adverse remarks were made in the aforesaid judgment approached the Hon'ble Apex Court by way of Special Leave Petition (Criminal) No. 96 of 2004 which was disposed of vide judgment dated 11.03.2005 directing the aggrieved officer (applicant) to apply before the High Court for expunging the remarks. The operative portion of the judgment of the Hon'ble Apex Court dated 11.03.2005 is quoted hereunder:-

"Having regard to the entire facts and circumstances of the case, we consider it appropriate to dispose of the Special Leave Petition with the direction to the petitioner to move an application before the High Court for expunging the remarks by which he feels aggrieved. If such an application is filed, the High Court will decide the same in accordance with law, without being influenced in any manner by any observation made in the present order."

Pursuant to the aforesaid direction of the Hon'ble Apex Court the present application was filed but for various reasons including enormous work load on Courts the application could not be heard.

An urgency application has been filed which has been placed before us consequent to the order of the Hon'ble The Senior Vacation Judge dated 16.06.2005.

Having heard the counsels for both the sides, we are of the view that as the matter relates to expunging of adverse remarks against an officer holding charge of the District Judgeship and continuance of said remarks may not only cause embarrassment and loss of dignity and honour but may also adversely affect his performance both in personal as well as official discharge of duties in particular and also adversely effect judicial administration in District Judgeship in general the matter deserves to be heard treating it as urgent. We therefore, treat the matter as urgent and urgency application is allowed, before hearing the matter on merits.  

We have heard Sri Murlidhar, learned senior counsel assisted by Sri R.K. Gupta, Advocate, for the applicant, Sri Sadhu Saran learned counsel appearing for the accused petitioner in the Criminal Writ Petition No. 7218 of 2004 and the learned Additional Government Advocate for the State respondents and perused the record placed before us.

The law relating to awarding of strictures/adverse remarks against judicial officers and others has been consistent from the time of Ishwari Prasad Misra vs. Mohd. Isa AIR 1963 SC 1728  wherein the Apex Court observed that there was need to adopt utmost judicial restraint against using strong language and imputation against lower judiciary more so because the Judge against whom the imputations are made has no remedy in law to vindicate his position. Further in the case of K.P.Tewari vs. State of M.P AIR 1994 SC 1031, the Apex Court dealing with a case of strictures against an Officer of subordinate judiciary took the opportunity to remind all concerned that using intemperate language and castigating strictures at the lower levels would only cause public respect in judiciary to dwindle. Again in the case of Kashi Nath Roy vs. State of Bihar 1996 (4) SCC 539  the Apex Court observed that the premise that a judge committed a mistake or an error beyond the limits of tolerance, is no ground to inflict condemnation on the judge subordinate, unless there existed something else and for exceptional grounds. Recently in the case of Anjani K. Verma vs. State of Bihar & another 2004 (II) SCC 188  the Apex Court observed as fallows:-

"At the outset, we may observe that a judicial officer who exceeds the limits of propriety and conduct and does not render justice in accordance with the facts of the case and the law, needs no protection from the superior courts. But, at the same time, while passing strictures against a member of the subordinate judiciary utmost care and caution is required to be taken, also having regard to the stress and conditions under which, by and large, the judicial officers have to render justice".

Giving of opportunity before passing strictures/adverse remarks is essential is another aspect to be considered as observed in a recent decision of the Hon'ble Apex Court in the case of Teesta Setalvad & another vs. State of Gujarat 2005 (51) ACC 692.

Perusal of memorandum of Criminal Revision No. 332 of 2004 (Annexure 5 to the Affidavit) filed by the accused persons shows that it had not been drafted properly. Whether deliberately or inadvertently there is no clear mention of order taking cognizance dated 05.04.2004. In any case, any one could bonafide had carried an impression  on plain reading that said Criminal Revision is against order dated 31.07.2004 only, particularly when Criminal Revision against order of 05.04.2004 (taking cognizance) was time barred and said date is not specifically referred therein. Such an inadvertence, if any, on plain reading of the said Memo of Criminal Revision particularly considering and pressure of work and constraints  of time and  treat the said revision against order dated 31.07.2004, is per se bonafide and not at all serious so as to look for extraneous reasons or to doubt the legal acumen of the Presiding Officer. The other part mentioned in the memo of revision that it was against taking cognizance also could have been genuinely overlooked because there was no clear or specific prayer to quash the order dated 05.04.2002 in said Criminal Revision.

We therefore considering the facts and circumstances and also having regard to the law on the point deem it fit to expunge the remarks made against the applicant in the judgment dated 05.11.2004.

The adverse remarks contained in the judgment dated 05.11.2004 are expunged which shall stand deleted and deemed to be not existing on record at any point of time. The rest of the judgment shall stand as it is.

No costs.

The application is accordingly allowed.

Dated: 17.06.2005

v.k.updh. (103)  


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Reproduced in accordance with s52(q) of the Copyright Act 1957 (India) from judis.nic.in, indiacode.nic.in and other Indian High Court Websites

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