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CASE NO.: Appeal (crl.)  1039 of 2006

PETITIONER: Jasbir Singh

RESPONDENT: State of Punjab

DATE OF JUDGMENT: 11/10/2006

BENCH: K.G. BALAKRISHNAN & Dr. AR. LAKSHMANAN

JUDGMENT: J U D G M E N T (ARISING OUT OF SLP (CRL.) NO. 3604 OF 2004)

K.G. BALAKRISHNAN, J.   

Leave granted.

A case was registered by P.S. Sirhind against seven persons,  including the appellant under Sections 469/467, 468/218-120B of  IPC and also under the provisions of  the Prevention of    Corruption Act.  The appellant was arrested and   remanded to  judicial  custody   and the  final report was filed by the police.  It  appears that the appellant moved an application  for bail, but the  same was rejected.  The appellant  moved another bail application  on 24.4.2003 before the  Sessions Judge, Fatehpur Sahib, which  was fixed for hearing on 5.5.2003. Meanwhile, on 29.4.2003 the  Administrative Judge of the  High Court of Punjab & Haryana  came for annual inspection to the  District & Sessions Court,  Fatehpur Sahib, and the Deputy Commissioner, S.S.P. and other  police officers were present.  The Hon’ble Judge visited the Jail at  Nabha as part of the inspection programme.  The appellant moved  an application for bail during the course of inspection and the  learned Judge noticed  the police officers as representative of the  prosecution, and as they had no  objection to the granting of bail  to the appellant, the learned Judge passed the following Order:

"The applicant is facing trial for  commission of offences under Sections 409,  447, 468, 218, 120-B IPC and also under  the provisions of Prevention of Corruption  Act. His co-accused similarly situated has  since been enlarged on bail.  Applicant is in  jail for the last seven months.  Sessions  Judge asked to look into his application and  enlarge him on bail as his trial is likely to  take some time before it is concluded"  (emphasis supplied)

       Thereafter, the  bail application  of the appellant came up for  hearing before the Sessions Judge, Fatehpur Sahib, who,  without  making a reference to the directions contained in the order of the  Administrative Judge,  dismissed the application.  But,  on the  next day,  i.e. 6.5.2003, when his attention was drawn to the order  of the Administrative Judge, the Sessions Judge granted bail to the  appellant.  The appellant also moved an application  for the release  of his earth-moving machine, which was seized  by the police  during investigations  and the same was released to the appellant

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on furnishing a bond in the sum of Rs. 20 lacs.

       On 13.6.2003, one Usha Rani made a complaint to the Chief  Justice of  the Punjab & Haryana High Court, alleging mala fides  on the part of the  Sessions Judge, Fatehpur Saheb, in granting  bail to the appellant.  The Chief Justice called for the proceedings  and directed that the entire matter be placed before the very same  Administrative Judge on the judicial side.  Thereupon,  notice was  issued to the appellant. The de facto complainant  also entered  appearance. She reiterated her allegation and sought for  cancellation of bail granted to the appellant.  The learned  Administrative Judge held that while passing the order of bail on  6.5.2003, the Sessions Judge had not discussed the matter on  merit and therefore the order dated 6.5.2003 was set aside.   Aggrieved by the same the appellant has preferred the instant  appeal by way of special leave.

       When the matter came before this Court on 16.2.2004, the  following Order was passed:-         "Application for exemption from  surrendering is dismissed.

       At the request of learned senior counsel  for the petitioner this special leave  petition is adjourned by four weeks.

       The above special leave petition has been  adjourned even at the stage of calling for  orders on admission.  In the meantime  while going through the order under  challenge, we find that observations have  been made to the effect that there is a  practice of passing orders by an  Administration Judge on the spot at the  time of inspection and the handing over  of petitions for bail etc. at that time.    The Registrar of the Punjab & Haryana  High Court at Chandigarh, by taking  instructions/directions from the Chief  Justice will send a detailed report to this  Registry to be placed when the matter  is  taken up as to for how long this type of  practice, if any, has been followed in the  State and as to whether  there is any  sanction for the same under any law; or  administrative orders by the Hon’ble  Chief Justice of the Court at any time.   Copies of such orders, if any, in the  matter shall be enclosed to the report."

       The report received from the Chief Justice of Punjab &  Haryana,  indicates that there has been a constant practice of the  Inspecting/Administrative Judges receiving applications from  inmates of  jail,  for grant of bail,  and while in some cases the  Inspecting Judge by himself would pass the  order, in  other cases   he would direct the Sessions Judges to grant bail or direct the  application  to be dealt with in accordance with law.  The Chief  Justice has furnished the details of the various orders where the  Inspecting Judges had  granted  bail to the inmates of jail during  the course of  inspection.  Some of the judges gave the opinion to  the Chief Justice that they used to receive bail applications,  which  they were marking to the Registry of the High Court for further  action.  Some of the Judges asserted that they had never granted

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any bail application in the course of inspection and those  applications were only directed to be placed before the concerned  Sessions Judge.

       The Registrar General in his report has made certain  startling revelations to the effect that  series of bail orders  were   granted by the Judges in the course of inspection,  on  applications  received from undertrial prisoners. The Chief Justice has  emphatically denied having given any jurisdiction to any of the  Judges to hear and pass orders on bail applications during  inspection.  It seems that the stand taken by some of the Judges is  that the Judges of the High Court  are vested with the power of   superintendence and control over all courts and tribunals  subordinate to the High Court under Article 227,  and as part of  such Constitutional  power, the Inspecting Judges have  the right  and duty to consider the bail applications during inspection.  

       The learned counsel appearing on behalf of the Bar Council  of the State of Haryana submitted that in many cases the bail  applications are not considered by the Sessions Judges in time and  the accused have to remain in jail for unnecessarily long periods  and that in such cases it is the duty of the Inspecting Judges to  receive bail applications and pass appropriate directions.

       What is the width and amplitude of the power of  superintendence over subordinate courts and whether it  authorizes the Inspecting Judges to transact any judicial work,   which is in the domain of the subordinate courts, is the question  that arises for consideration in this appeal.     

       The power of superintendence over all the subordinate  courts and tribunals is given to the High Court  under Article 227  of the Constitution.  So also,  under Article 235 of the  Constitution,  the High Courts exercise control over all the district  courts and courts subordinate thereto on all matters relating to  posting, promotion and grant of leave  to  officers  belonging  to the   judicial service of the State. The power of superintendence  conferred on the High Court under Article 227   over all the courts  and tribunals throughout the territory of the State  is both of   administrative and judicial  nature and it could be exercised suo  motu also.   However,    such power of superintendence does not  imply  that the High Courts can influence the subordinate  judiciary to pass any order or judgment in a particular manner.    The extraordinary power under Article 227 can only be used by the  High Courts to ensure that the subordinate courts function within  the limits of their authority.   The High Court cannot interfere with  the judicial functions  of a subordinate Judge.   Speaking on  the  power of superintendence of the High Court under Article 227 in   Waryam Singh  vs. Amarnath  (AIR 1954 SC 215), at page 217,  Justice S.R. Das observed :-

"The material part of Article 227 substantially  reproduces the provisions of Section  107 of  the Government of India Act, 1915 except that  the power of superintendence has been  extended by the Article also to Tribunals\005\005..  Further, the preponderance  of judicial opinion  in India was that Section 107 which was  similar in terms to Section 15 of the High  Courts Act, 1861, gave a power of judicial  superintendence to the High Court apart from  and independently of the provisions of other  laws conferring revisional jurisdiction on the  High Court.

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In this connection it has to be remembered  that Section 107 of the Government of India  Act, 1915 was reproduced in the Government  of India Act, 1935 as Section 224.  Section 224  of the 1935 Act, however, introduced sub- section (2), which was new, providing that  nothing in the section should be construed as  giving the High Court any jurisdiction to  question any judgment of any inferior court  which was not otherwise subject to appeal or  revision.  The idea presumably was to nullify  the effect of the decisions of the different High  Courts referred to above.  Section 224 of the  1935 Act has been reproduced with certain  modifications in Article 227 of the  Constitution.  It is significant  to note that sub- section (2) to Section 224 of the 1935 Act has  been omitted from Article 227.

This significant omission has been regarded by  all High Courts in India before whom this  question has arisen as having restored  to the  High Court the power of judicial  superintendence it had under Section 15 of the  High Courts Act, 1861 and Section 107 of the  Government of India Act, 1915\005\005..

This power of superintendence conferred by  Article 227 is, as pointed out by Harries, C.J.,  in \026 Dalmia Jain Airways Ltd. Vs. Sukumar  Mukherjee, AIR 1951 Cal 193 (SB (B), to be  exercised most sparingly and only in  appropriate cases in order to keep the  Subordinate Courts within the bounds of their  authority and not for correcting mere errors".

This view expressed was later followed by this Court in   Timbak  Vs. Ram Chandra   AIR 1977 SC 1222, by Justice  Jaswant Singh, at page 1225 :-

"It is also well established that it is only when  an order of the Tribunal is violative  of the  fundamental basic principles of justice and  fair play or a patent or flagrant error in the  procedure of law has crept or where the order  passed results in manifest injustice, that a  court can justifiably intervene under Article  227 of the Constitution." In Mohd. Yunus  Vs. Mohd. Mustaqim  AIR 1984 SC 38,  this Court held :- "The supervisory jurisdiction conferred on the  High Court’s under Article 227 of the  Constitution is limited "to seeing that an  inferior Court or Tribunal functions within  the limits of its authority," and not to correct  an error apparent on the face of the record,  much less an error of law\005.. In exercising its  supervisory powers under Article 227, the  High Court does not act as an appellate court  or Tribunal.  It will not review or reweigh the  evidence upon which the inferior court or  tribunal purports to be based or to correct  any errors of law in the decision."

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        This Court also made almost similar observations in State  Vs. Navjot Sandhu  (2003) 6 SCC 641.

       So, even while invoking the provisions of Article 227 of the  Constitution, it is provided that the High Court would exercise  such powers most sparingly and  only in appropriate cases in order  to keep the  subordinate courts within the bounds of their  authority.     The power of superintendence exercised over the    subordinate courts and tribunals does not imply that the High  Court  can intervene in the judicial functions of the lower judiciary.   The independence of the subordinate courts in the discharge of  their  judicial functions  is of paramount importance,  just as the  independence of the superior courts in the discharge of  their   judicial functions.   It is the members of the subordinate judiciary  who directly interact with the parties  in the course of proceedings  of the case and therefore, it is no less important that their  independence should be protected effectively to the satisfaction of   the litigants.  The independence of the judiciary has been  considered as a part of  the  basic structure of the Constitution  and such independence is postulated not only from the Executive,  but also from all other sources of pressure.    In S.P. Gupta  Vs.  Union of India 1981 (Supp.) SCC 87, speaking on the  independence  of the judiciary,  a Bench of seven Judges observed   as under at page 221-222 :-  

"The concept of independence of  judiciary is a noble  concept which  inspires the constitutional scheme and  constitutes the foundation on which  rests the edifice of our democratic  polity\005.. But it is necessary to remind  ourselves that the concept of  independence of judiciary is not limited  only to independence from executive  pressure or influence but it is a much  wider concept which takes within its  sweep independence from many other  pressures and prejudices.  It has many  dimensions, namely, fearlessness of  other power centres, economic or  political, and freedom from prejudices  acquired and nourished by the class to  which the Judges belong."

        The  counsel appearing for the respondent submitted that  the power of superintendence and control over the subordinate  courts is conferred on the High Court under Article 235 of the  Constitution  and therefore the Inspecting Judge was fully justified  under certain circumstances to entertain the bail petitions or  transfer applications and direct the District Judges or other courts  to pass appropriate orders. We find no force in this contention.  This plea has been raised without any basis.  Article 235 of the  Constitution gives power to the High Court to exercise control over  the subordinate courts.  This power has been specifically described  in Article 235 in a comprehensive  sense so as to include the  powers of general superintendence over the working of the  subordinate courts; disciplinary control over the Presiding Judges  of the subordinate courts which includes power to make inquiry;  and impose punishments other than dismissal, removal or  reduction in rank subject, of course, to the rules of services and  Article 311(2)  of the Constitution. This power also would include  the power to order disciplinary inquiry, transfers, promotions of  members of subordinate judiciary and  confirmation of officers etc.

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It also includes the power to recall  officers of the subordinate  courts  holding ex cadre posts or to send officers on deputation to  other administrative posts or award  selection grade or pass orders  on any such matters connected with service.  The powers of control  to be exercised under Article 235 of the Constitution do not extend  to interfering with the judicial functions of the subordinate courts.   By virtue of the power under Article 235 the High Court cannot  direct the presiding officer to pass a judicial order in a particular  manner as that would certainly amount to interfering  with the  independence of the subordinate judiciary.

In the course of inspection, the  High Court Judge is  required  to examine whether the courts are functioning within the  norms laid down by the High Court.  Mostly the inspection is to be  confined to the administrative functioning of the courts and its  officers.  If any member of the administrative staff is not doing the   work assigned to him or is causing any delay in the process of   administration of justice, the Inspecting Judge can give proper  direction and see that the courts function smoothly. But under no  circumstances, the Inspecting Judge, as part of his administrative  duty enjoys the power to interfere with the judicial functions of the  subordinate courts in individual cases.  In the course of  inspection,  a High Court Judge cannot pass any order on interim  applications, such as bail petitions or transfer applications or  applications for interim injunction, howsoever justified they may  be. Orders on bail applications are passed under the provisions of  the Code of Criminal Procedure or under various other  enactments, which provide for grant of bail and such  orders are   passed as part of the judicial work.  The Inspecting Judge is not  supposed to pass any judicial order in individual cases in the  course of inspection.  Of course, he can give administrative  directions to the Presiding Officer or to any of the subordinate  staff, if such directions  are pertinent in the context of  administration of justice. Except giving general directions  regarding any matter concerning administration of justice, any  interference in the judicial functions of the Presiding Officer would  amount to interference with the independence of the subordinate  judiciary.  

So also, while on inspection, the Inspecting Judge is not  supposed to perform any judicial work.

A question of a similar nature came before this Court in   Alok Kumar  Vs.  Dr. S.N. Sarma  AIR1968 SC 453. That was a  case where the Judge of the High Court of Guwahati was  nominated as the Vacation Judge and certain dates were fixed on  which he was to sit and hear urgent civil and criminal  applications.  One of these dates was October 31, 1966 and  another  was November 10, 1966.  It was also stated in the order  that if there was any matter which was extremely urgent, it would  be heard on any other day by appointment through the Registrar.  This Judge was also working as a Commission of Enquiry during  that period.  For that purpose,  he had to go out of Gauhati, (the  seat of the High Court)  to  Sibsagar after the vacation sitting on  October 31, 1966.  Therefore, on November 2,  1966 he was not  available at Gauhati, even though he was the Vacation Judge.  Petitioner  filed  a writ petition seeking permission to write an  examination which was to be held on November 4, 1966. The  petitioner gave notice to the Government Advocate  and thereafter  went to Sibsagar  where the Judge was holding the Commission of  Enquiry and presented his petition. The writ petition was  entertained and the learned Judge passed an interim order  permitting the petitioner to write the examination. This order was  challenged later and this Court  held that by virtue of appointment  as a head of Commission, the Judge does not demit his office and  

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while holding a Commission of Enquiry at Sibsagar  if he received  the petition and passed an order, all that can be said is that the  petition was irregularly presented at Sibsagar when it should have  been presented at Gauhati.

Therefore, even if any  application for bail is received by the  Inspecting Judge, the proper course is to send the application to  the concerned court to pass appropriate orders. When the  Inspecting Judge visits the jail, it is quite likely that so many  inmates of the jail may file  petitions before the concerned Judge.   It is the duty of the Judge to see whether there is any merit in any  of these petitions.  If any application for bail is received, he can  very well send it to the concerned court without making any  comments  on the merits of the case.  On the contrary, if the  learned Inspecting Judge passes any order  in such matter, he  would only be usurping the powers of the courts   authorized to  pass such orders.  It may also be remembered that normally a   High Court Judge passes orders on matters assigned by the Chief  Justice and this Court in State of Rajasthan Vs. Prakash Chand  & Ors,  AIR 1998 SC 1344 deprecated the practice of the Single  Judge directing the listing of certain part-heard cases before him  without there being any orders of  Hon’ble the Chief Justice of the  High Court. It is the prerogative of the Chief Jusitce to assign  business of the High Court both on judicial and administrative  sides.  The Chief Justice  alone has the power to decide as to how  the Benches of the High Court are to be constituted. That  necessarily means that it is not within the competence of any  Single or Division Bench of the High Court to give any direction to  the Registry in that behalf which will run contrary to the directions   of the Chief Justice. Therefore, in the scheme of things, judicial  discipline  demands that in the event a single Judge or a Division  Bench considers  that a particular case requires to be listed before  it for valid reasons, it should direct the Registry to obtain  appropriate orders from the Chief Justice.  

The Inspecting Judges would be at liberty to receive  complaints or petitions in the course of inspection  so as to bring  the same to the notice of the appropriate court or to the Registry of  the High Court, so that it may, in turn,   be brought to the notice  of the Chief Justice who may place it before an appropriate forum  for passing orders.  

In the instant case,  as the accused has already been  released on bail, we need not pass any order.   With the above  observations, the appeal is disposed of.