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CASE NO.: Appeal (crl.)  1338 of 2007

PETITIONER: State of Gujarat

RESPONDENT: Turabali Gulamhussain Hirani & Anr

DATE OF JUDGMENT: 04/10/2007

BENCH: A.K. Mathur & Markandey Katju

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO.   1338            OF 2007 (Arising out of Special Leave Petition (Crl) No. 2252 of 2007

MARKANDEY KATJU, J.

1.      Leave granted.

2.      This appeal has been filed against the impugned interim order dated  11.4.2007 of the Gujarat High Court in Criminal Miscellaneous Application  No. 13747/2005 in Criminal Appeal No. 728/2005.

3.       A perusal of the impugned interim order shows that a Criminal  Appeal was filed with a delay of 25 days.  The learned Judge of the Gujarat  High Court (Hon’ble R.S. Garg, J.) on the application for condonation of  delay in filing the appeal passed the impugned order directing the Chief  Secretary and Law Secretary of the Gujarat government to be personally  present before him on 20.4.2007 "so that the Court may have a direct  dialogue with them that what effective steps they are taking to provide  sufficient staff to the office of the Government Pleader/Public Prosecutor  and to avoid delay at every stage".  It may be mentioned that the reason  given for the delay of 25 days was the shortage of staff including  stenographers in the office of the Public Prosecutor.

4.      In our opinion, the learned Judge of Gujarat High Court was totally  unjustified in summoning the Chief Secretary and Law Secretary merely  because there was a delay of 25 days in filing the appeal.  It may be  mentioned that the same Hon’ble Judge (Hon. R.S Garg, J.) in several other  cases also summoned the Chief Secretary to appear before him personally.   Thus, in Special Civil Application Nos. 13969/1993 and 6896/1993 titled  Gujarat Hotels Ltd. & others  vs. State of Gujarat & others dated 18.1.2007  he summoned the Chief Secretary to appear before him personally.  That  case related to an incentive scheme of the State government for attracting  new entrepreneurs.

5.      In another case, Special Civil Application No. 8209/1998 titled  Gujarat Revenue Tribunal vs. A.K. Chakraborty, IAS, the Bench of Hon’ble  R.S. Garg and Hon’ble M.R. Shah, JJ. by an order dated 28.2.2007 ordered  the Chief Secretary to be personally present on 6.3.2007 "so that the Court  may discuss the niceties with him and may ask him certain questions  hovering in the mind of the Court".

6.      A large number of cases have come up before this Court where we  find that learned Judges of various High Courts have been summoning the  Chief Secretary, Secretaries to the government (Central and State), Director

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Generals of Police, Director, CBI or BSF or other senior officials of the  government.

7.      There is no doubt that the High Court has power to summon these  officials, but in our opinion that should be done in very rare and exceptional  cases when there are compelling circumstances to do so.  Such summoning  orders should not be passed lightly or as a routine or at the drop of a hat.  

8.      Judges should have modesty and humility.  They should realize that  summoning a senior official, except in some very rare and exceptional  situation, and that too for compelling reasons, is counter productive and may  also involve heavy expenses and valuable time of the official concerned.

9.      The judiciary must have respect for the executive and the legislature.   Judges should realize that officials like the Chief Secretary, Secretary to the  government, Commissioners, District Magistrates, senior police officials   etc. are extremely busy persons who are often working from morning till  night.  No doubt, the ministers lay down the policy, but the actual  implementation of the policy and day to day running of the government has  to be done by the bureaucrats, and hence the bureaucrats are often working  round the clock.   If they are summoned by the Court they will, of course,  appear before the Court, but then a lot of public money and time may be  unnecessarily wasted.  Sometimes High Court Judges summon high officials  in far off places like Director, CBI or Home Secretary to the Government of  India not realizing that it entails heavy expenditure like arranging of a BSF  aircraft, coupled with public money and valuable time  which would have  been otherwise spent on public welfare.

10.     Hence, frequent, casual and lackadaisical summoning of high officials  by the Court cannot be appreciated.  We are constrained to make these  observations because we are coming across a large number of cases where  such orders summoning of high officials are being passed by the High  Courts and often it is nothing but for the ego satisfaction of the learned  Judge.

11.     We do not mean to say that in no circumstances and on no occasion  should an official be summoned by the Court. In some extreme and  compelling situation that may be done, but on such occasions also the senior  official must be given proper respect by the Court and he should not be  humiliated.  Such senior officials need not be made to stand all the time  when the hearing is going on, and they can be offered a chair by the Court to  sit.  They need to stand only when answering or making a statement in the  Court.   The senior officials too have their self-respect, and if the Court gives  them respect they in turn will respect the Court.  Respect begets respect.

12.     It sometimes happens that a senior official may not even know about  the order of the High Court.  For example, if the High Court stays the order  of the Collector of suspension of a class-III or class IV employee in a   government department, and certified copy of that order is left with the  Clerk in the office of the Collector, it often happens that the Collector is not  even aware of the order as he has gone on tour and he may come to know  about it only after a few days.  In the meantime a contempt of court notice is  issued against him by the Court summoning him to be personally present in  Court.  In our opinion, this should not be readily done,  because there is no  reason why the Collector would not obey the order of the High Court.  In  such circumstances, the Court should only request the government counsel  to inform the concerned Collector about the earlier order of the Court which  may not have been brought to the notice of the Collector concerned, and the  High Court can again list the case after a week or two.  Almost invariably it  will be found that as soon as the Collector comes to know about the stay  order of the High Court, he orders compliance of it.  

13.     In the present case, we find no occasion or reason for the learned  Judge to summon the Chief Secretary or the Law Secretary by the impugned  order.  If the learned Judge was concerned about the lack of enough

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Stenographers in the office of the Public Prosecutor he could have called the  Advocate General or Govt. Advocate to his chamber and have asked him to  convey the Court’s displeasure to the government, but where was the need to  summon the Chief Secretary or Law Secretary ?  Hence, we set aside the  impugned interim order dated 11.4.2007 and condone the delay of 25 days in  filing the appeal before the High Court.  The High Court may now proceed  to hear the Criminal Appeal in accordance with law.  The appeal is allowed.         

14.     The Secretary General of this Court is directed to circulate a copy of  this judgment to the Registrar Generals/Registrars of all the High Courts,  who shall circulate copies of the said judgment to all Hon’ble Judges of the  High Courts.