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PETITIONER: STATE OF MAHARASHTRA

       Vs.

RESPONDENT: DR. BUDHIKOTA SUBHARAO

DATE OF JUDGMENT16/03/1993

BENCH: SAHAI, R.M. (J) BENCH: SAHAI, R.M. (J) PANDIAN, S.R. (J)

CITATION:  1993 SCR  (2) 329        1993 SCC  (2) 567  JT 1993 (3)   389        1993 SCALE  (2)44

ACT: Code of Criminal Procedure 1973: Section 482.  Court proceedings--Mala fides--May be legal or factual--Procuring         order        on         incorrect facts--Reprehensible--Practice and procedure. High Court--Judge may have unchallenged and unfettered power to   direct  office  to  list  case   before   him--Judicial discipline restricts excercise of this power. Judgments--Structures  of ’sharp practices’  suppression  of facts, obtaining orders by playing fraud--Use of.

HEADNOTE: The  respondent,  an ex-Naval Officer and  Computer  Science Graduate  was accused of leaking Atomic  Energy  Secrets-and violating the provisions of the Atomic Energy Act, 1962.  He riled  an application for quashing the charge  sheet  framed under  the Official Secrets Act, 1923 and the Atomic  Energy Act,  1962  and  for  release of  his  passport  before  the Division  Bench of the High Court which passed an  order  on 13.2.1991  that it may be presented before the trial  Judge. On  the  very next day the Additional Sessions  Judge  after hearing the parties directed that the passport and  identity card  of  the respondent be returned, and he  permitted  the respondent  to  leave  India and travel abroad  as  per  his itinerary  during the period from 17.2.1991 to 22.2.1991  on executing a personal bond of Rs.50,000. The appellant  State was disturbed by this order as  serious charges  had  been levelled against the respondent  who  had been arrested, earlier, just when he was about to leave  the country and board the plane, for leakage of official secrets and  whose  bail  had even, been cancelled  by  this  Court; appeared to be in danger of leaving the country again. Since the order was passed on 14.2.91 and the respondent was to fly 301 on 17.2.91 and 16.2.91 was a Saturday, the State  Challenged the  correctness  of  the order  passed  by  the  Additional Sessions  Judge by way of a writ petition under Article  227 of  the  Constitution  read with  section  482  of  Criminal Procedure  Code and a Single Judge, who under the rules  was entitled  to bear such a petition, passed an ex-parte  order on  15.2.91 staying that part of the order  which  permitted

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the  respondent  to  leave  the  country  and  directed  the application to be listed for further orders on 18.2.91. The  Respondent  on  coming to know of this  order,  in  the evening,  approached  the Division Bench of the  High  Court where  the-main  petition was pending  on  16.2.1991,  which after making an observation that the Public prosecutor ought to have brought it to the notice of the Sin& Judge that  the main  matter was pending before the Division Bench  and  the trial  Judge  had  passed  the order  in  pursuance  of  the direction  issued by the Division Bench, directed  that  the matter,  being urgent, it should be placed before  the  same single Judge. Consequent thereto the parties appeared before the Judge  on 16.2.1991  who  after  hearing them  confirmed  the  interim order. When  the  revision  petition filed by  the  State  directed against  the  order acquitting the respondent  accused,  was taken  up  for hearing and observations  were  made,  during course  of judgment dictated in open court from 5th to  12th October,  1991 against the public prosecutor and the  State, the  respondent  appears  to have made  a  mention  on  10th October  that the writ petition filed by the  State  against the  order  of the trial judge releasing  his  passport  and permitting him to travel abroad may be summoned and disposed of.  This request was accepted and on direction of the Judge the  office listed the case before him on 11th October,  and when  the  petition was taken up, on 11th October,  and  the public  prosecutor  was asked if she had  any  objection  to hearing it was stated by her that it did not survive. The Judge after completion of judgment in criminal  revision on  12th  October, took up the writ  petition.   The  Single Judge  passed the order which is the subject matter  of  the appeal  and directed the payment of  Rs.25,000  compensation for consultancy loss, suffered by the respondent due to  the ex-parte  order obtained by the State against the  order  of the trial judge permitting the respondent to go abroad. 302 The State appealed to this Court questioning the validity of the order of the Single Judge dated 28.10.91. Allowing the State’s appeal and the intervention application of  the Public prosecutor and setting aside the order  dated 28.10.91 passed in the Civil Miscellaneous Writ Petition and dismissing the same as infurctuous this Court. HELD : 1. Disclosing correct facts and then obtaining  order in  favour  is not same as procuring an order  on  incorrect facts.   Former is legitimate being part of advocacy  latter is reprehensible and against profession. [307D] 2.  Mala  fides violating the proceedings may  be  legal  of factual.   Former arises as a matter of law where  a  public functionary acts deliberately in defiance of law without any malicious intention or improper motive whereas the latter is actuated  by extraneous considerations.  But neither can  be assumed  or readily inferred.  It requires  strong  evidence and unimpeachable proof. [308C] In the instant case, neither the order passed by the  Single Judge  granting ex-parte order of stay  preventing  opposite party  from going abroad was against provisions of  law  nor was the State guilty of acting mala fides in approaching the Single  Judge  by way or writ petition.  The  order  of  the trial  Judge  could not be challenged  before  the  Division Bench, under the rules of the court, the correctness of, the order  could be assailed only in the manner it was  done  by the State. [308D] 3. Any party aggrieved by an order is entitled to  challenge it in a court of law.  Such action is neither express malice

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nor malice in law. [308E] 4.  Sharp practice is not a court language.  It is sorry  to say so.  Facts did not justify it.  Legal propriety does not countenance  use of such expressions favourably.  The  Judge in the instant case, used very harsh language without  there being any occasion for it. [309C] 5. A State counsel with all the aura of office suffers  dual handicap  of  being  looked upon by the other  side  as  the necessary devil and the courts too at times, rind it  easier to  frown  upon him.  The moral responsibility  of  a  state counsel,  to place the facts correctly, honestly and  fairly before  the court, having access to State  records,  coupled with his duty to 303 secure  an  order in favour of his client  requires  him  to discharge  his duty responsibly and sensibly.  Even so if  a State  lawyer  who owes a special duty and  is  charge  with higher  standard of conduct in his zeal or due to  pressure, not uncommon in the present day, adopts a partisan  approach that  by  itself is not sufficient to warrant a  finding  of unfairness or resorting to sharp practice. [309D-E] 6.The  public prosecutor may have exhibited more zeal.   But that could not be characterised as unfair.  May be it  would have  been proper and probably better to inform  the  Single Judge about the earlier order passed by the Division  Bench. But  assuming  the  public prosecutor  did  not  inform  and remained  content  with its disclosure in the  body  of  the petition  she could not be held to have  acted  dishonestly. [309F] 7.A  Judge  of  the High Court  may  have  unchallenged  and unfettered power to direct the office to list a case  before him.  But that by itself restricts the exercise of power and calls  for strict judicial discipline.  If the Judge in  the instant  case, would have avoided sending for  and  deciding the petition, which as pointed out by the senior counsel for the State had become infructuous, it would have been more in keeping with judicial culture. [309H, 310A-B]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.275  of 1993. From  the Judgment and Order dated 14.10.1991 of the  Bombay High Court in Crl.  W.P. No. 180 of 1991. Altaf  Ahmed,  Addl.  Solicitor General,  B.R.  Handa,  Mrs. Manjula Rao,  S.M. Jadhav, A.S. Bhasme and A.M. Khanwilkar  for  the Appellant. Dr.  B. Subha Rao Respondent-in-person. V.M.  Tarkunde,  A.M.  Khanwilkar and  A.K.  Panda  for  the Intervenor. The Judgment of the Court was delivered by R.M.SAHAI, J. Strictures of ’sharp practice’, suppression of facts,  obtaining  orders by playing fraud  upon  the  court against  State  by Mr.  Justice Saldanha   a of  the  Bombay High Court, while deciding Criminal 304 Miscellaneous Petition filed by the opposite party,  accused of leaking official secrets and violating provisions of  the Atomic   Energy   Act,  1962  and  awarding   Rs.25,000   as compensation, for consultancy loss, suffered by him, due  to ex-parte  order obtained by the State against order  of  the trial  Judge  permitting the opposite party  to  go  abroad, compelled the State to file this appeal and assail the order

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not only for legal infirmities but factual inaccuracies. Reasons to quote the teamed Judge which, ’compelled the con- secience  of  court to pass’ the impugned order  were,  ’the unfortunate proceedings that bristled (s) with mala  fides’. Basis  for  these  inferences was,  the  conclusion  by  the learned  Judge, that the State, deliberately,  procured  the interim order by another learned Judge by filing a  separate writ  petition,  when  it knew that the  main  petition  for quashing of the proceedings was pending before the  division bench  (Puranik  & Saldanha, JJ.). The learned  Judge  felt, strongly,  against the public prosecutor as she being  aware of  the proceedings before the Division Bench failed in  her duty of apprising the learned Judge of correct facts. Was this so?  Did the State procure the order by  concealing facts?   Was  the  public  prosecutor  guilty  of  violating professional ethics or her duty as respondent officer of the court?  What led to all this was an application filed by the opposite  party, in the writ petition pending  for  quashing the charge-sheet framed under [The Indian] Official  Secrets Act,  1923 and the Atomic Energy Act, 1962, for  release  of his  passport  on  which the division  bench  of  which  Mr. Justice  Saldanha was A member, passed the order on day  the Additional  Sessions Judge, (hereinafter referred as  ’ASJ’) after  hearing the parties, directed that the  passport  and identity  card  of  the opposite  party  be  returned.   He, further,  permitted  the opposite party to leave  India  and travel  abroad as per the itinerary during the  period  from 17.2.91   to  22.2.91  on  executing  a  personal  bond   of Rs.50,000. The State was, obviously, disturbed by this order as  serious charges had been levelled against  the  opposite party who had been arrested, earlier, just when he was about to  leave  the country and board the plane, for  leakage  of official secrets and whose bail had, even, been cancelled by this court, appeared to be in danger of leaving the  country again.   Since  the  order was passed  on  14.2.91  and  the opposite  party  was  to  fly on  17.2.91  and  16.2.91  was Staturday the State challenged the correctness of the  order passed by the 305 ASJ  by  way  of a writ petition under Article  227  of  the Constitution  read  with Section 482 of  Criminal  Procedure Code and the learned Judge, who under the rules was entitled to hear such a petition, passed an ex-parte order on 15.2.91 staying that part of the order which permitted the  opposite party  to leave the country and directed the application  to be  listed for further orders on 18.2.91. On coming to  know of this order, in the evening, the opposite party approached the  Division Bench where the main petition was  pending  on 16th  February, which after making an observation  that  the public prosecutor ought to have brought it to the notice  of the  learned single Judge that the main matter  was  pending before the Division Bench and the trial Judge had passed the order  in pursuance of the direction issued by the  Division Bench,--directed that the matter, being urgent, it should be placed  before the same learned single Judge.   Consequently parties  appeared before the learned Judge on 16th  February who,  after hearing, confirmed the interim order  passed,  a day earlier. With confirmation of interim order the proceedings which had commenced on the application filed by the opposite party  to leave the country came to an end.  But the writ petition  in which  the interim order was passed remained  pending.   And when  the revision filed by the State, directed against  the order  acquitting the accused, was taken up for  hearing  by Mr.  Justice  Saldanha, and observations  were  made  during

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course  of judgment dictated in open court from 5th to  12th October  1991 against the public prosecutor and  the  State, the  opposite party appears to have made a mention  on  10th October  that the writ petition filed by the  State  against the  order  of the trial Judge releasing  his  passport  and permitting him to travel abroad may be summoned and disposed of.   The  request  was accepted and  on  direction  of  the learned Judge the office listed the case before him on  11th October.   When the petition was taken up, on 11th  October, and the public prosecutor was asked if she had any objection to  hearing  it was stated by her that it did  not  survive. But  the  learned  Judge after  completion  of  judgment  in criminal revision on 12th October, appears to have, taken up the writ petition.  It was pointed out by the learned senior counsel for the State that since the criminal revision filed by  the State against the order acquitting the  accused  has been dimissed, the writ petition had become infructuous  and orders may be passed accordingly. Yet  the  learned  Judge passed the  impugned  order.   What weighed  with the learned Judge to infer mala fides  against the State was that the 306 order  dated  14.2.91 having been passed in  open  court  in presence  of the opposite party and counsel for  the  State, permitting  the  opposite  party to  leave  the  country  on 17.2.91,   the  opposite  party,  genuinely   expected   the according  to the learned Judge, rightly, that  any  further application  which  the  State  would  make  could  only  be addressed  to  the  bench, namely, the bench  of  Puranik  & Saldanha,  JJ.,  before  whom  the  petition  was   pending, therefore,  the  opposite  party,  justifiably,  waited  and watched   in  the  bench,  whole  day  for  moving  of   any application  but  the  State  instead  of  moving  any  such application filed a fresh writ petition and obtained an  ex- parte order, the information of which was given to  opposite party in the evening.  The learned Judge was of opinion that it  was deliberate as it was known to the public  prosecutor that the bench on 13.2.91 after scrutinising the papers  was of opinion that it was a genuine case in which the  passport should  be  released  and  the  opposite  party  should   be permitted  to travel abroad but due to paucity of  time  the bench  instead  of passing the order directed  the  opposite party  to  approach  the trial  Judge.   The  learned  Judge further held that even though the public prosecutor and  the Inspector  of Police knew these facts and that the  opposite party was to fly on 17.2.91 yet the notice was obtained from the  learned Judge returnable on 18.2.91 by which  time  the delegation from Reliance Industries of which the accuse  was to  be  a member was to have left the  country.   Since  the effect  of the interim order and the fixing of the  petition on  18.2.91 nullified the opposite party’s going  to  United States  of  America,  the  court felt  that  the  order  was obtained not only unfairly, but that it constituted a  sharp practice.  The motive of the public prosecutor and the State was  further  attempted  to be shown  to  be  dishonest  and motivated  as  the averments in the petition  on  which  the interim  order was obtained were false to  their  knowledge. The falsity found was that the State had deliberately  tried to  mislead the court by alleging that the trial  was  fixed for  hearing on 18.2.91 and the same had been  adjourned  to 24.2.91.  The court found that the learned single Judge  was misled in passing the order as was clear from ground  number six  which was to the effect that the trial being fixed  for 18.2.91  the  trial Judge was not justified in  issuing  the orders in favour of opposite party.  The learned Judge  also

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felt  aggrieved by the conduct of the public  prosecutor  in not  informing the learned single Judge that the  main  writ petition was already listed for hearing before the  division bench  and  that the direction to the ASJ  to  consider  the application  for return of passport had been issued  by  the bench.   The  learned single Judge was  not  satisfied  with explanation  of the State that a petition under Article  227 of the Constitution read with 307 Section  482 of Criminal Procedure Code  being  maintainable before  the learned single Judge under the High Court  rules it had no option but to proceed in accordance with law.  The learned  single  Judge pointed out that if the  State  would have pointed out to the Registry the correct facts then  the case  could not have been listed before the  learned  single Judge. That  any party aggrieved by an order passed by a  Court  is entitled to approach the higher court cannot be disputed nor can it be disputed that a petition under Article 227 of  the Constitution read with Section 482 of the Criminal Procedure Code  against the order of trial Judge was maintainable  and under  rules  of  the court it could be  listed  before  the learned single Judge only.  The State, therefore, in  filing the petition against the order of the sessions Judge did not commit  any  illegality or any impropriety.  A copy  of  the writ  petition,  has  been annexed  to  this  special  leave petition  which, does not show any disclosure  of  incorrect facts or any attempt to mislead the court.  Even the learned single  Judge did not find that the trial was not fixed  for 18.2.91.  Disclosing correct facts and then obtaining  order in  favour is not same as procurring an order  on  incorrect facts.   Former is legitimate being part of advocacy  latter is  reprehensible and against profession.  But if the  State persuaded  the  court  to stay the operation  of  the  order passed by the trial Judge while mentioning the details about the  pendency-of  the earlier petition before  the  division bench  and  issuing of directions to the sessions  Judge  to decide  the application for release of passport etc.  it  is difficult to imagine how any inference of obtaining order on incorrect  facts  could  be  drawn.   During  arguments  the opposite party attempted to highlight averments in paragraph six  of  the writ petition to the effect that  the  Division Bench  had dismissed the application of the  opposite  party when no such order was passed.  The sentence, in fact, reads as under: The application was dismissed and directed the respondent to move  trial  court and further directed the trial  court  to consider the same in accordance with law. True,  the application was not dismissed.  But the  sentence had  to be read in its entirety.  No court could  be  misled from the use of the word dismissed as the directions  issued by the court were mentioned correctly.  The inference  drawn by  court  and the finding recorded by it of  obtaining  the order by ’suppression of facts and making positively,  false statements’ is 308 factually  incorrect and legally unsound.  The grief of  the opposite  party  in missing an opportunity of going  to  the United States and the grievance against functionaries of the State,  namely, public prosecutor and prosecuting  Inspector can  be appreciated.  We can, also, visualise the  vehemence and eloquence of the opposite party, of which he is  capable of,  as  appeared from his submission when  he  appeared  in person  in  this  court, but what has baffled  us  that  the learned  Judge  was  persuaded  to  record  the  finding  of

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suppression of facts on such weak and insufficient material. Mala-fides  violating  the  proceedings  may  be  legal   or factual.   Former arises as a matter of law where  a  public functionary acts deliberately in defiance of law without any malicious intention or improper motive whereas the latter is actuated  by extraneous considerations.  But neither can  be assumed  or readily inferred.  It requires  strong  evidence and  unimpeachable  proof Neither the order  passed  by  the learned  single  Judge  granting  ex-parte  order  of   stay preventing  opposite  party from going  abroad  was  against provisions  of law nor was the State guilty of  acting  mala fides in approaching the learned single Judge by way of writ petition.   The  order  of  the trial  Judge  could  not  be challenged  before the Devision Bench.  Under the  rules  of the  court, the correctness of, the order could be  assailed only  in  the manner it was done by the  State.   Any  party aggrieved by an order is entitled to challenge it in a court of law.  Such action is neither express malice nor malice in law. The  opposite party was charged with very  serious  offence. He was arrested when he was about to leave the country.  The State  was possessed of material that he had, even,  applied for  matrimonial  alliance in response to  an  advertisement issued  from  New  York.   The order  of  the  trial  Judge, therefore,  permitting opposite party to leave  the  country without trial must have created a flutter in the department. It  was by all standard a sensational and a sensitive  case. The public prosecutor and the prosecuting Inspector who were entrusted  with  responsibility to  prosecute  the  opposite party  must have felt worked up by the order permitting  the opposite  party  to leave the country.  Decision  must  have been taken to prevent the opposite party by approaching  the High Court by way of a writ petition instead of  approaching the  Division Bench.  Assuming that the State took  recourse to  this method, as it might have been apprehensive that  it would  not get any order from the division bench, the  State could  not be accused of mala-fides so long it proceeded  in accordance with law.  Apart from that once it was 309 brought  to the notice of the division bench that the  State had  procured on ex-parte order from the learned  Judge  who was  requested  by the division bench to  treat  the  matter urgent  and  hear parties and the application was  heard  on 16th  February and the learned Judge refused to  vacate  the interim order and confirmed it the entire basis of mala-fide stood  demolised.   The learned Judge was not  justified  in blaming the State for getting the notice returnable on  18th February.   That  was order of the court.  In any  case  the opposite party having appeared on 16th yet the learned Judge having  refused to modify his order it was too much to  hold the State or public prosecutor responsible for it. Sharp practice is not a court language.  We are sorry to say so.   Facts  did not justify it.  Legal propriety  does  not countenance use of such expression favourably.  The  learned Judge,  to our discomfort, used very harsh language  without there  being any occasion for it.  A State counsel with  all the  aura  of office suffers dual handicap of  being  looked upon by the other side as the necessary devil and the courts too  at times, find it easier to frown upon him.  The  moral responsibility  of  a  State counsel,  to  place  the  facts correctly,  honesty  and  fairly before  the  court,  having access to State records, coupled with his duty to secure  an order it favour of his client requires him to discharge  his duty  responsibly and sensibly.  Even so if a  State  lawyer who owes a special duty and is charged with higher  standard

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of  conduct in his zeal or due to pressure, not uncommon  in the  present day, adopts a partisan approach that by  itself is  not  sufficient to warrant a finding of  unfairaness  or resorting to sharp practice.  In this case too not more than this appears to have happened.  May be the public prosecutor may  have  exhibited  more  zeal.  But  that  could  not  be characterised  as unfair.  May be it would have been  proper and probably better to inform the learned single Judge about the  earlier  order  passed  by  the  division  bench.   But assuming  the public prosecutor did not inform and  remained content with its disclosure in the body of the petition  she could not be held to have acted dishonestly. We ’are constrained to observe our unhappiness on the manner in  which  the  writ petition was summoned  by  Mr.  Justice Saldanha  from  the office, heard and  decided.   As  stated earlier  the writ petition was directed by the leaned  Judge to  be listed before him, on a mention made by the  opposite party  in  course  of  dictation  of  judgment  in  criminal revision wherein he had made observations against the public prosecutor.  A Judge 310 of the High Court may have unchallenged and unfettered power to direct the office to list a case before him.  But that by itself restricts the exercise of power and calls for  strict judicial  discipline.  We do not intend to make any  comment but  we are of opinion that if the learned Judge would  have avoided  sending  for and deciding the  petition,  which  as pointed out by the learned senior counsel for the State  had become infructuous, it would have been more in keeping  with judicial culture. For  reasons stated above by us this appeal succeeds and  is allowed.    The  order  dated  28-10-91  passed   in   civil miscellaneous  writ petition is set aside.  It  shall  stand dismissed  as  infructuous.   The  Intervention  Application No.943 of 1992 of the Public Prosecutor is allowed.  We make it  clear that all the observations and remarks made by  the learned Judge against the State and Public Prosecutor  shall stand expugned. N.V.K.                              Appeal allowed. 311