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CASE NO.: Appeal (civil)  2015 of 2006

PETITIONER: Ramesh Chander Singh

RESPONDENT: High Court of Allahabad & Anr

DATE OF JUDGMENT: 26/02/2007

BENCH: CJI K.G. BALAKRISHNAN,LOKESHWAR SINGH PANTA & D.K. JAIN

JUDGMENT: J  U  D G  M  E  N  T

K.G. BALARISHNAN, CJI

       The appellant is a judicial officer in the State of Uttar  Pradesh.  He joined the Provincial Civil Service (Judicial) in the  year 1976 and in May 1994 he was promoted to the Higher  Judicial Service and posted as Addl. District & Sessions Judge  at Jhansi.  A crime No. 180 of 1995 registered by the Police  Station at Nawabad  was committed to the Sessions Court at  Jhansi and allotted to the appellant’s court for trial and  disposal.  There were three accused in that case, namely, Ram  Pal, Raghunath and Rajendra.  The crime related to an  incident which happened on 22.5.1995.  The allegation in the  First Information Report was that accused Ram Pal and  Raghunath used fire-arms and shot dead Pratap Yadubir  Singh and Devendra Pipraiya within the compound of  District  Panchayat Bhawan at Jhansi.   The Police registered the case  for the offences punishable under Sections 302, 307 read with  Section 34 IPC.  Accused Rajendra was granted bail on  19.8.1995.  The second accused, Raghunath, who allegedly  used the fire-arm and killed one of the victims, was also  granted bail on 20.9.1995 by the High Court.   Accused Ram  Pal continued to be in custody and moved his first bail  application on 17.11.1995 which was dismissed by the  Sessions Judge, Jhansi.  On 11.4.1996, accused Ram Pal  moved another bail application and the same was dismissed  for default.  In the third application, which came up for  consideration before the second Addl. Sessions Judge, Jhansi,  accused Ram Pal contended that he had no criminal history  and that the Executive Magistrate (Tehsildar) who recorded the  dying declaration used to reside in the house of the deceased  Pratap Yadubir and because of his acquaintance with the  deceased, the dying declaration recorded by him was not to be  given much credence.   Accused Ram Pal further contended  that he was a local resident and there was no likelihood of he  being absconding.  The Sessions Judge dismissed the bail  application on 15.5.1996.  In the fourth bail application,  moved by accused Ram Pal on 19.6.1996, he contended that  he was a student; he had surrendered before the Chief  Judicial Magistrate, Jhansi, on 8.6.1995; had been in custody  for more than one year and that his co-accused had been  released on bail.  He pleaded that his father was seriously ill  and in support of this contention, he produced a medical  certificate from a Professor of Medical College at Jhansi to  show that his father had suffered a heart-attack on 16.5.1996.   By an order passed on 22.6.1996, the appellant herein granted  bail to accused Ram Pal.  The main reasons attributed by the  appellant for granting bail to accused Ram Pal were that the

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charge sheet had been filed by the police; the accused had  stated that his father was dangerously ill; the accused was a  student; and that the accused had no previous conviction or  involvement in any criminal case.  The appellant also observed  in the bail order that the Tehsildar who recorded the dying  declaration was a close acquaintance of the deceased.   Considering the totality of the circumstances and as there was  no likelihood of the accused absconding or interfering with the  trial of the case influencing the witnesses or committing any  fresh offence, the bail application was allowed by the  appellant.

       It may also be noticed that when the bail application of  the accused came up on 22.6.1996, the appellant noticed that  the brother of the defacto complainant had filed an application  before the Sessions Judge for the transfer of the bail  application to some other court.   It appears that the hearing  of bail petition was adjourned in the morning of 22.6.1996 for  want of a specific report from the Addl. District Govt. Counsel  (ADGC) and later, on the same day, it was taken up when the  ADGC stated that he had full faith in the court and the  counsel, who was engaged by the complainant, did not raise  any objection and was prepared to argue the bail application.     No stay order was produced before the appellant and  therefore, the appellant proceeded with the hearing of the case  and passed the order on the very same day granting bail to  accused Ram Pal on his furnishing a bond for Rs.20,000/-  with two sureties.

       On 10.7.1996, complainant Jagdeo Singh sent a  complaint to the High Court alleging that the appellant had  accepted illegal gratification for granting bail to accused Ram  Pal.   This complaint was placed before the Inspecting Judge  and after going through the material on record the learned  Inspecting Judge was of the view that there was a prima facie  case against the officer concerned, for dereliction of duty and  judicial dishonesty while granting bail.   The Administrative  Committee initiated departmental enquiry against the  appellant.  It may further be noticed that in the complaint filed  by Jagdeo Singh, he alleged that it was being said in the  village that a sum of Rs.80,000/- had been paid to the  appellant and bail would be granted by him and that nobody  could stop it.   He had also mentioned about the transfer  application filed by him before the Distt. Judge and alleged  that despite the filing of the said transfer application, the bail  application was heard and allowed.  He prayed for the transfer  of the case to some other court.  

   In the transfer application filed by the brother of the  complainant, there was an allegation that a sum of               Rs. 80,000/- was paid and that it was settled through a  library clerk with the involvement of two other clerks.    In the  transfer application, he also alleged that the brother and  father of accused Ram Pal were found going in and coming out  of the residence of the appellant.  Despite all these allegations,  no charge was framed against the appellant that he had  received illegal gratification for granting bail.  The charge sheet  contained the only allegation that the bail order was passed by  the appellant for extraneous consideration with oblique  motives on insufficient grounds and that the appellant was  guilty of misconduct and failed to maintain absolute integrity  and devotion to duty within the meaning of Rule 3 of U.P.  Government Servants Conduct Rules, 1956.   The charge sheet  as well as the statement of facts are clubbed together and the  gist of allegations is contained in paragraphs 6 and 7 of the

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charge sheet.

       A sitting Judge of the High Court conducted the enquiry  and gave his report.   Though there was no charge specifically  brought against the appellant that he had received a sum of  Rs.80,000/- as illegal gratification, this aspect also was  considered by the learned Judge. On behalf of the  complainant, PW-1 Jagdeo Singh was examined and he made  a specific allegation that the father of the accused had  withdrawn Rs.80,000/- from the bank and that the bail  application was allowed on the next day.  He did not, however,  claim to have any direct knowledge.    He deposed that he had  gathered this information from a labourer.    He did not take  any steps to summon the bank record.   PW-1 was completely  disbelieved by the learned Judge who conducted the inquiry.      The case set up by the complainant was not supported by  other witnesses.    The counsel who appeared for the brother  of the deceased and moved the application for transfer, stated  that the brother of the deceased did not tell him that there was  a rumour in the village about payment of Rs.80,000/-.   The  Judge who conducted the inquiry elaborately considered the  various aspects of the matter and concluded that there was no  element of truth in the allegation that the appellant had  received illegal gratification.   The evidence of PW-1 on this  aspect was disbelieved.   However, the learned Judge inquiring  the matter eventually came to the conclusion that the bail had  been granted by the appellant in utter disregard of judicial  norms and on insufficient grounds and based on extraneous  consideration with oblique motive and the charges had been  proved.   It is important to note that the Judge who conducted  the enquiry has not stated in his report as to what was the  oblique motive or the extraneous consideration involved in the  matter.

       Based on the enquiry report, the appellant was served  with a notice to show cause as to why his two increments  should not be withheld with cumulative effect.    The matter  was placed before the Full Court on 20.11.1999 and the Full  Court by its resolution imposed a major punishment of  withholding two annual increments of the appellant with  cumulative effect.  The appellant filed a review application  against the said punishment and the same was rejected.    Thereupon, he filed a writ petition under Article 226 of the  Constitution challenging the punishment imposed on him.    By judgment dated 3.10.2005, the writ petition was dismissed  and in the very same judgment the appellant was directed to  show cause within three weeks from the date of the judgment  as to why the High Court should not consider substitution of  the punishment imposed, by removing him from service.    Pursuant to the notice, the appellant appeared and presented  his case before the Division Bench.   By judgment dated  25.11.2005, the appellant was reduced to the rank next below,  that is, Civil Judge (Senior Division).   Both the judgments of  the Division Bench are challenged before us.

       The learned Counsel for the appellant contended before  us that the appellant was not charged for receiving any illegal  gratification for granting bail to the accused in Crime No. 180  of 1995 registered by the Police Station at Nawabad.  The  charge, if at all, was vague and it only stated that the bail  order had been passed by the delinquent officer [appellant] for  extraneous consideration with oblique motive on insufficient  grounds, without cogent and tangible reasons, and that he  attempted to justify his order by superfluous reasoning by  making adverse comments on the conduct of the Executive

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Magistrate, who recorded the dying declaration, fully knowing  that it was a broad daylight double-murder case and that the  grounds were not fit for granting bail and these factors  revealed that the order had been passed for extraneous  consideration.  It was argued that there was no specific charge  that the appellant received any monetary consideration from  any of the accused or his relatives.  The appellant’s counsel  also pointed out that though the complainant specifically  alleged that a sum of Rs. 80,000/- was given to the appellant- officer and that this money had been obtained from the bank  on the previous day by the father of accused Ram Pal, these  allegations were not proved and that the complainant, at the  time of enquiry, stated that he had heard of this story from  some servants and from the very nature of the allegation, they  were disbelieved and that was why a specific charge was not  framed against the appellant. It was further argued by  appellant’s counsel that though there was no charge against  the appellant, the Judge who conducted the enquiry allowed  the complainant to adduce evidence, and eventually he came  to the conclusion that there was absolutely no evidence to  show that the delinquent officer had received any illegal  gratification from any party.

The question for consideration is whether the appellant  had granted bail on insufficient grounds or was justified in  passing such an order.  Granting of bail to accused pending  trial is one of the significant judicial functions to be performed  by a Judicial Officer.  In the instant case, neither the State nor  the complainant had filed any appeal against the order passed  by the appellant.  The State did not allege that the accused  who had been granted bail was likely to abuse his bail or likely  to abscond.  It is also pertinent to note that the accused to  whom the appellant had granted bail was one of the three  accused against whom charge sheet had been filed by the  police.  The other two accused were Rejendra and Raghu Nath.   As per the First Information Report, Ram Pal, to whom the  appellant had granted bail, and Raghu Nath, who obtained  bail from the High Court, had used fire-arms as a result of  which two persons died.    As per the prosecution case, the  accused Ram Pal is alleged to have caused the death of one of  the victims while accused Raghu Nath was alleged to have  caused the death of the other victim.   Accused Raghu Nath  was granted bail by the High Court on 20.9.1995.  Accused  Rajendra was granted bail as early as 19.8.1995.  Accused  Ram Pal had been in custody for more than one year.  The  police had already filed the charge-sheet against him and the  court was yet to frame the charge against all the accused.   Accused Ram Pal was a student and he alleged that had he  suffered a loss of one year’s study.  He also alleged that his  father was seriously ill due to a heart ailment and he produced  a medical certificate from one of the professors working in the  local medical college.  It was under these circumstances that  the bail application filed by Ram Pal came to be heard by the  appellant and he granted bail to him by an order passed on  22.6.1996.  It is also important that the complainant made an  attempt to have the bail application transferred from the court  of the appellant to the court of the Principal Sessions Court.     Though he filed the application for transfer, he did not press  for stay of the proceedings.  The appellant-officer came to  know about the filing of the transfer application and brought  this fact to the notice of the counsel who appeared for the  complainant and also the State prosecutor.  Both the counsel  had no objection to the hearing of the bail application by the  appellant and accordingly the appellant heard the bail  application and passed the order granting bail to Ram Pal.    It

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is clear that by filing a frivolous transfer application the  complainant only intended to create a sense of threat so as to  influence the appellant not to grant bail to the accused.  The  filing of the transfer application by the complainant could not  be viewed   from any other angle.   Despite this, the  complainant did not file any application for cancellation of bail  granted to the accused.

       The learned Judge who conducted the enquiry held that  in the facts of the case where a heinous and daring offence  had been committed in broad daylight and two persons had  been shot dead in a crowded area next to the Collectorate at  Jhansi and the accused were named in the FIR as well as in  the dying declarations and their bail applications having been  considered and rejected twice on merits by the respective  courts, the third bail application granted by the charged officer  in utter disregard of the judicial norms and on insufficient  grounds appears to be based on extraneous consideration.    The learned enquiry Judge did not care to take notice of the  fact that the co-accused who were similarly situate had been  granted bail by the High Court and that accused Ram Pal, who  was a student and had been in jail for more than one year was  granted bail for cogent reasons, set out in the order passed by  the appellant.  In the bail order, the appellant stated that  there was an allegation that the Magistrate who recorded the  dying declaration was once upon a time a tenant in one of the  houses owned by the complainant.  Taking cognizance of this  fact by the appellant in the order could not be said to be a  totally unwarranted and a superfluous reasoning.   The counsel for the respondent pointed out that on three  previous occasions the bail had been declined to the very same  accused and as there was no change in the circumstances, the  appellant-officer should not have considered the fourth bail  application as well.  Of course, in the previous bail  applications, many of the contentions raised by the accused  were considered, but an accused has the right to file bail  application at any stage when undergoing imprisonment as an  under-trial prisoner.  The fact that the two other accused had  already been enlarged on bail was a valid reason for granting  bail to accused Ram Pal.  Moreover, accused Ram Pal had  been in jail for one year as an under-trial prisoner and the  charge-sheet had already been filed.  In our opinion, if accused  Ram Pal were to be denied bail in these circumstances, it  would have been a travesty of justice especially when all  factors relevant to be gone into for considering the bail  application were heavily loaded in   favour of grant of bail to  accused Ram Pal.

       We   fail to understand as to how the High Court arrived  at a decision to initiate disciplinary proceedings solely based  on the complaint, the contents of which were not believed to  be true by the High Court.  If the High Court were to initiate  disciplinary proceedings based on a judicial order, there  should have been strong grounds to suspect officer’s           bona fides and the order itself should have been actuated by  malice, bias or illegality.  The appellant-officer was well within  his right to grant bail to the accused in discharge of his  judicial functions.  Unlike provisions for granting bail in TADA  Act or NDPS Act,  there was no statutory bar in granting bail  to the accused in this case.  A Sessions Judge was competent  to grant bail and if any disciplinary proceedings are initiated  against the officer for passing such an order, it would  adversely affect the morale of subordinate judiciary and no  officer would be able to exercise this power freely and

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independently.    

       This Court on several occasions has disapproved the  practice of initiation of disciplinary proceedings against  officers of the subordinate judiciary merely because the  judgments/orders passed by them are wrong.  The appellate  and revisional courts have been established and given powers  to set aside such orders.  The higher courts after hearing the  appeal may modify or set aside erroneous judgments of the  lower courts. While taking disciplinary action based on judicial  orders, High Court must take extra care and caution.   

In Iswar Chandra Jain v.  High Court of Punjab and  Haryana, AIR 1988 SC 1395, this Court observed that while  exercising control over subordinate judiciary under Art. 235 of  the Constitution, the High Court is under a Constitutional  obligation to guide and protect subordinate judicial officers.   An honest and strict judicial officer is likely to have  adversaries.  If complaints are entertained in trifling matters  and if the High Court encourages anonymous complaints, no  judicial officer would feel secure and it would be difficult for  him to discharge his duties in an honest and independent  manner.  It is imperative that the High Court should take  steps to protect honest judicial officers by ignoring ill- conceived or motivated complaints made by unscrupulous  lawyers and litigants.

       In K.P. Tiwari v. State of Madhya Pradesh, AIR 1994  SC 1031, where the High Court reversed the order passed by  the lower court making remarks about interestedness and  motive of the lower court in passing the unmerited order, this  Court observed that one of the functions of the higher court is  either to modify or set aside erroneous orders passed by the  lower courts. Our legal system acknowledges fallibility of  judges.  It has to be kept in mind that a subordinate judicial  officer works mostly in a charged atmosphere.  He is under a  psychological pressure -- contestants and lawyers breathing  down his neck.   He does not enjoy the detached atmosphere  of the higher court.  Every error, however gross it may be,  should not be attributed to improper motives.  The Judges of  the High Court have a responsibility to ensure judicial  discipline and respect for the judiciary from all concerned.  No  greater damage can be done to the administration of justice  and to the confidence of the people in the judiciary if the  higher courts express lack of faith in the subordinate judiciary  for some reason or other.  That amounts to destruction of  judiciary from within.

In Kashi Nath Roy v. The State of Bihar, AIR 1996 SC  3240,  this Court observed under a similar circumstance that  in our system appellate and revisional courts have been set up  with the presupposition that the lower courts in some measure  of cases can go wrong in decision making in law and in fact.   The higher courts have been established to correct errors.  In  cases where intolerable error is pointed out, it is functionally  required to correct the error in an appropriate case and in a  manner befitting maintaining dignity of the court and  independence of the judiciary.  The higher court should convey  its message in the judgment to the officer concerned through a  process of reasoning, essentially persuasive, reasonable,  mellowed but clear and result oriented and rarely a rebuke.  

In series of other cases also, this court disfavoured the  practice of passing strictures or orders against the  subordinate officers.  (See : Braj Kishore Thakur v. Union of

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India, AIR 1997 SC 1157; Alok Kumar Roy v. Dr. S.N.  Sarma, AIR 1968 SC 453)          In Lunjarrao Bhikaji Nagarkar v. Union of India, AIR  1999 SC 2881, this Court held that wrong exercise of  jurisdiction by a quasi judicial authority or mistake of law or  wrong interpretation of law cannot be the basis for initiating  disciplinary proceeding. Of course, if the Judicial Officer  conducted in a manner as would reflect on his reputation or  integrity or good faith or there is a prima facie material to  show recklessness or misconduct in discharge of his duties or  he had acted in a manner to unduly favour a party or had  passed an order actuated by corrupt motive, the High Court by  virtue of its power under Art. 235 of the Constitution may  exercise its supervisory jurisdiction. Nevertheless, under such  circumstances it should be kept in mind that the Judges at all  levels have to administer justice without fear or favour.   Fearlessness and maintenance of judicial independence are  very essential for an efficacious judicial system.  Making  adverse comments against subordinate judicial officers and  subjecting them to severe disciplinary proceedings would  ultimately harm the judicial system at the grassroot level.  

Apart from the merits of the case before us, we have also  gone into the Confidential Reports of the appellant officer.  His  integrity and honesty had never been doubted at any point of  time.  In some of the confidential reports except stating that  the appellant-officer was not having smooth relationship with  the advocates, no other adverse remarks had been entered.   Two Senior Judges of the High Court have entered in his  confidential register that the appellant is an officer of honesty  and integrity.  The fact that it was a case of daylight murder  wherein two persons died, is not adequate to hold that the  accused were not entitled to bail at all.   Passing order on a  bail application is a matter of discretion which is exercised by  a Judicial Officer with utmost responsibility.  When a co- accused had been granted bail by the High Court, the  appellant cannot be said to have passed an unjustified order  granting bail, that too, to an accused who was a student and  had been in jail for more than one year.  If at all, the  Inspecting Judge had found anything wrong with the Order,  he should have sent for the officer and advised him to be  careful in future.  The punishment of reverting the appellant  to the post of Civil Judge (Sr. Division), in the facts and  circumstances of this case could only be termed as draconian  and unjust.  The appellant had been in the cadre of District  Judge for eight years at the time this grave punishment of  reversion to a lower rank was imposed on him.  In our opinion,  the punishment was clearly disproportionate to the lapse  alleged to have been committed by him.  The imposition of the  punishment of withholding two increments with cumulative  effect also appears to be disproportionate to the alleged lapse.   Consequently, we set aside the Judgment of the High  Court dated 3.10.2005 and also the Judgment rendered by the  very same court on 25.11.2005.  The appellant shall be  immediately posted to the cadre of District Judge and paid all  monetary benefits due to him as a consequence thereof.  We  also set aside the initial order passed by the Full court of the  High Court imposing the penalty of withholding two  increments to the appellant with cumulative effect.      As the Full Court alone is the ultimate competent  authority to consider all disciplinary matters and has indeed  taken the decision impugned before us, we remit the matter to  the Full Court to consider afresh the question of imposition of

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appropriate punishment on the appellant.  The appeal is disposed of accordingly.