Case BriefsHigh Courts

Madras High Court: B. Pugalendhi, J., while refusing to recuse from the present case reminded himself of the harsh criticism of Justice V.R. Krishna Iyer.

Justice V.R. Krishna Iyer had addressed a letter to His Excellency the Governor of Kerala as well as the Chief Justice of Kerala High Court, on the recusal of three Judges of the Kerala High Court from hearing an appeal, stated that every Judge is obliged by his oath of his office to hear every case posted before him and do justice and that not to hear a case or decline to do justice is breach of the solemn obligation vested in them. In fact, His Lordship has also opined that such recusal should invite impeachment by Parliament or dismissal by the President.

Present criminal appeals were filed by the State against the Judicial Magistrates’ Order under Section 256 of Criminal Procedure Code, 1973.

Magistrate had dismissed the District Collector’s complaint about his non-appearance under Section 256 Criminal Procedure Code, 1973 and acquitted the respondents/accused from the charges under Section 4(1-A) read with 21(1) of the Mines and Minerals (Development and Regulation) Act, 1957.

Further complaints were also filed to confiscate the multicolour granite block seized from the accused’s land and dispose of the same.

Aggrieved in view of the above, State preferred the criminal appeals.

Certain observations that were made by the Magistrate:

  • Anshul Mishra, I.A.S, the then-District Collector who had filed the complaints in his official duty as the District Collector was on the date of complaint he was not the District Collector and hence committed the offence under Sections 181, 182, 193 and 199 of Penal Code, 1860.
  • Special Public Prosecutors also aided the complainant in the said offence.

In view of the above observations, Anshul Mishra, I.A.S, the then-District Collector filed the Crl. OP (MD) Nos. 7655 & 7656 of 2016 to expunge the remarks made against him.

Grievance

Petitioner stated that on receiving the complaints in regard to illegal mining, transportation and storage of minerals, he formed a special team to conduct a comprehensive, scientific, systematic inspection in all the granite quarries in Madurai.

Based on the special teams report District Collector took action in accordance with the Mines and Minerals (Development and Regulation) Act, by filing the complaints before the competent Court under Section 200 CrPC read with Section 22 of the Mines and Minerals (Development and Regulation) Act.

Analysis

“Nowadays, if anybody, reminds the duty, they are viewed differently. As an individual person, everybody expects their servants to be loyal and sincere to them, but, at the same time, if the Government servant does his duty sincerely and diligently, it is viewed in a different manner, as a sin. This is how our values have evolved.”

Respondents / Accused have pressurised this Court to get away from the cases.

Bench stated that,

“…though the respondents / accused pointed out in their complaint that as a Government Counsel I appeared against these respondents / accused in certain proceedings for more than 200 occasions, they did not point out any single instance, where I misled or wrongly projected the case of the respondents / accused, in those proceedings.”

Judicial Independence

Court added that “Judicial Independence” is defined as a pre-requisite to the rule of law and a fundamental guarantee of fair proceedings.

A Judge shall exercise the judicial function independently on the basis of the Judge’s assessment of the facts and in accordance with a conscientious understanding of the law, free of any extraneous influences, inducements, pressures, threats or interference, direct or indirect, from any quarter or for any reason.

In the Supreme Court’s decision of Trishala v. M.V. Sundar Raj, (2010) 15 SCC 714, it was held that simply because the Judge whilst at the Bar was a Standing Counsel for the Municipal Corporation, it cannot be held that he is precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity; more so, when the relevant facts were not brought to his notice.

Order of Acquittal

In the present matter, with no complicated legal issue, appeals have been pending for 3 years, respondents/accused are enjoying the acquittal for 3 years even without a trial and they may intent to retain this favourable order of acquittal for some more time. But the Advocates, being the Officers of the Court, owe certain duties not only to their clients, but also to the Court.

Mud on the Judge

The Advocates before throwing mud on the Judge must realise that by doing so, they are attacking themselves and the Institution. As a Judge and an Advocate, we command certain respect and privileges in the society and the same is derived from this Institution and its judgment.

Non-Appearance of Complainant

Appeals are arising out of an order passed under Section 256 CrPC for the non-appearance of the complainant. The grievance of the State in the appeals is without providing an opportunity to adduce evidence, the learned Judicial Magistrate adopted a shortcut method to acquit the accused.

“The parties, who are enjoying favourable orders, will not come forward to proceed with the case and the other side are the ultimate sufferer.”

“District Collector/petitioner in Criminal Original Petitions is vindicated for having discharged his duty diligently. He is waiting for justice for the past four years. But the petitions could not be taken up for hearing, one way or the other. “

Judicial Magistrate’s Order has not followed the basic principles in deciding the issue.

Court added that, most of the Government servants lose their sincerity since their salary is assured, even if they do not work. At present, very few officials are working with honesty, integrity and sincerity and even those officers are afraid of the consequences and avoid their duties.

Illegal Mining Activities

Object for which the amendments were made in the Mines and Minerals (Development and Regulation) Act, by introducing the provisions under Sections 4(1A), 21, 21(4A) and 23(C) by Act 38 of 1999 is only to curb the rampant illegal mining activities.

Bench stated that,

The Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, was framed by the State only on the powers conferred under Section 23(C) and it cannot override the provisions under Section 4(1-A), 21 and 21(4-A) of the Act.

Hence, the Judicial Magistrates’ order referring the provisions under the Tamil Nadu Prevention of Illegal Mining, Transportation and Storage of Minerals and Mineral Dealers Rules, 2011, when the complaint itself was filed for taking cognizance under the Mines and Minerals (Development and Regulation) Act, was not proper.

In view of the above, the impugned order cannot be maintained.

“Condemnation of the petitioner without giving him an opportunity of being heard was a complete negation of the fundamental principle of natural justice.”

The following directions were passed by the Court:

  • Matter to be remitted back to the trial court.
  • Observations made by the Judicial Magistrate as against the District Collector and Special Public Prosecutors stand expunged.
  • District Collector shall appear before the trial court within a period of 2 months.

Before parting, Court expressed with pain that even for answering 1+1= 2, at times, it has to explain in detail. [Anshul Mishra v. District Collector, 2020 SCC OnLine Mad 1725, decided on 12-08-2020]

Case BriefsHigh Courts

Sikkim High Court: The Bench of Vijai Kumar Bist, CJ, disposed of a transfer petition in which the District Judge, Special Division- I, Sikkim wanted to recuse himself from a case as his father had appeared in respect of the same subject-matter.

District Judge had passed an order while referring the matter to High Court on being informed that his father had appeared for the same subject matter involved in the appeal for the State-respondent in the said case.

The High Court on considering the facts and circumstances of the case, referred to the decisions of Supreme Court in Supreme Court Advocates-On-Record Assn. v. Union of India, (2016) 5 SCC 808,

“A Judge can recuse a matter, if a Judge has a financial interest in the outcome of a case. In such cases, he is automatically disqualified from hearing the case. In cases where the interest of the Judge is other than financial, then the disqualification is not automatic but an enquiry is required where the existence of such an interest disqualifies the Judge tested in the light of either on the principle of “real danger” or “reasonable apprehension”.

Another decision of the Apex Court relied on by the Court was, Trishala v. M.V. Sundar Raj, (2010) 15 SCC 714, in this case, the Supreme Court held that, it cannot be said simply because the learned Judge whilst at the Bar was a Standing Counsel for Municipal Corporation, he is precluded either in law or on propriety from hearing any case in which a Corporator is a party in his personal capacity.

Therefore, the Court while concluding its decision, stated that the ground mentioned of District Judge’s father appearing for the same subject matter earlier was no ground for recusal from the case as, the District Judge was at no point involved in any manner with the case, he was not appearing for any of the parties.

Father of District Judge appeared in his private capacity and District Judge had nothing to do with the said case.

When can a Judge recuse?

  • A Judge can recuse when he or his family member’s interest is involved in the case.
  • He can recuse when his close relative is a party in the
  • If one of the parties is known to him and is closely associated with him.
  • He can also recuse if he had earlier appeared as an Advocate for one of the parties.
  • If earlier any legal opinion was given by a Judge in the matter or has financial interest in the litigation, he can recuse.

In view of the above, application sent by District Judge, Special Division-I, Sikkim was rejected and transfer petition was disposed of. [Mahesh Chettri v. State of Sikkim, 2019 SCC OnLine Sikk 15, Order dated 23-03-2019]