KRISHNA PRASAD VERMA (D) THR. LRS.versusSTATE OF BIHAR & ORS.

                         [2019] 12 S.C.R. 861                           861


          KRISHNA PRASAD VERMA (D) THR. LRS.                            A
                                 v.
                    STATE OF BIHAR & ORS.
                   Civil Appeal No. 8950 of 2011
                      SEPTEMBER 26, 2019                                B
      [DEEPAK GUPTA AND ANIRUDDHA BOSE, JJ.]
      Judiciary:
       Judicial service – Disciplinary proceedings – Against judicial
officer – On two charges (i) granting bail without noticing order       C
of superior court and (ii) closing evidence without ensuring
production of witnesses – Found guilty of misconduct – Propriety
of – Held: Art.235 of the Constitution vests control of subordinate
courts upon High Court – High Courts are also the protectors and
guardians of judges falling within their administrative control –       D
In order to ensure independence of subordinate judiciary
disciplinary action should not be taken against judicial officers
just because they passed wrong orders, unless there are clear-cut
allegations of misconduct, extraneous influences, gratification of
any kind etc. – The appropriate action for passing wrong order
would be to record the same on the administrative side and place        E
it on the service record of the officer concerned and the same can
be taken into consideration while considering career progression
of such officer – If there is continuous flow of wrong or illegal
orders, the proper action would be to compulsorily retire the
judicial officer – In the facts of the present case, the delinquent     F
officer cannot be held guilty of misconduct – The orders passed
against the delinquent officer are quashed – Constitution of India
– Art.235.
      Allowing the appeal, the Court
      HELD: 1.1 There can be no Rule of Law, there can be no            G
democracy unless there is a strong, fearless and independent
judiciary. This independence and fearlessness is not only
expected at the level of the Superior Courts but also from the
District judiciary. Therefore, it is important that the judiciary at
the District Level and at the Taluka level is absolutely honest,
                                                                        H
                                861
862            SUPREME COURT REPORTS                     [2019] 12 S.C.R.


A     fearless and free from any pressure and is able to decide cases
      only on the basis of the facts on file, uninfluenced by any
      pressure from any quarters whatsoever. [Para 1 and 2] [864-H;
      865-A-B]
             1.2 Article 235 of the Constitution of India vests control
B     of the subordinate Courts upon the High Courts. The High
      Courts exercise disciplinary powers over the subordinate
      Courts. The High Courts are also the protectors and guardians
      of the judges falling within their administrative control. Action
      should not be taken against judicial officers only because wrong
      orders are passed. No doubt, there has to be zero tolerance for
C     corruption and if there are allegations of corruption, misconduct
      or of acts unbecoming a judicial officer, these must be dealt with
      strictly. However, if wrong orders are passed that should not lead
      to disciplinary action unless there is evidence that the wrong
      orders have been passed for extraneous reasons and not
D     because of the reasons on the file. If any judicial officer conducts
      proceedings in a manner which would reflect on his reputation
      or integrity or there is prima facie material to show reckless
      misconduct on his part while discharging his duties, the High
      Court would be entitled to initiate disciplinary cases but such
      material should be evident from the orders and should also be
E     placed on record during the course of disciplinary proceedings.
      [Paras 3,4 and 8] [865-C-F; 868-D]
             1.3 It is not that if a judicial officer passes a wrong order,
      then no action is to be taken. In case a judicial officer passes
      orders which are against settled legal norms but there is no
F     allegation of any extraneous influences leading to the passing
      of such orders then the appropriate action which the High Court
      should take is to record such material on the administrative side
      and place it on the service record of the judicial officer
      concerned. These matters can be taken into consideration while
      considering career progression of the concerned judicial officer.
G
      Once note of the wrong order is taken and they form part of the
      service record these can be taken into consideration to deny
      selection grade, promotion etc., and in case there is a continuous
      flow of wrong or illegal orders then the proper action would be
      to compulsorily retire the judicial officer, in accordance with the
H     Rules. Unless there are clear-cut allegations of misconduct,
         KRISHNA PRASAD VERMA (D) THR. LRS. v.                        863
                STATE OF BIHAR & ORS.

extraneous influences, gratification of any kind etc., disciplinary   A
proceedings should not be initiated merely on the basis that a
wrong order has been passed by the judicial officer or merely
on the ground that the judicial order is incorrect. [Para 16] [871-
E-H]
      Ishwar Chand Jain v. High Court of Punjab &                     B
      Haryana and another (1988) 3 SCC 370 : [1988] 1
      Suppl. SCR 396 ; Union of India & Ors. v.. A.N.
      Saxena (1992) 3 SCC 124 : [1992] 2 SCR 364 ; Union
      of India & Ors. v. K.K. Dhawan (1993) 2 SCC 56 :
      [1993] 1 SCR 296 ; P.C. Joshi v.. State of U.P. & Ors.
      (2001) 6 SCC 491 : [2001] 1 Suppl. SCR 369 ;                    C
      Ramesh Chander Singh v. High Court of Allahabad &
      Anr. (2007) 4 SCC 247 : [2007] 3 SCR 198 – relied
      on.
      2.1 In the present case the main ground to hold the
appellant-judicial officer guilty of the first charge is that the     D
appellant did not take notice of the orders of the High Court
whereby the High Court had rejected the bail application of one
of the accused. The officer may have been guilty of negligence
in the sense that he did not carefully go through the case file
and did not take notice of the order of the High Court which
                                                                      E
was on his file. This negligence cannot be treated to be
misconduct. The enquiry officer had not found that there was any
extraneous reason for granting bail. The enquiry officer virtually
sat as a court of appeal picking holes in the order granting bail.
[Para 11] [869-F-H; 870-A]
      2.2 So far as the second charge is concerned, wherein it        F
was alleged that the appellant as a Special Judge under Narcotic
Drugs and Psychotropic Substances Act, 1985 closed the
evidence resulting in acquittal of the accused, the enquiry officer
on the basis of the statements of two clerks of the Court has
made lengthy observations that the appellant did not send any         G
communication to the Superintendent of Police, the District
Magistrate and other authorities to ensure the production of the
witnesses. According to the enquiry officer, the appellant should
have made efforts to approach the senior officials to get the
witnesses produced. The Code of Criminal Procedure or the
NDPS Act do not provide for any such procedure. It is the duty        H
864            SUPREME COURT REPORTS                      [2019] 12 S.C.R.


A     of the prosecution to produce the witnesses. In the present case,
      the Public Prosecutor had made a note on the side of the daily
      order-sheet that he is unable to produce the witnesses so the
      evidences may be closed. While holding the appellant guilty of
      misconduct no reference has been made to the statement of the
      Public Prosecutor. The appellant had given 18 adjournments for
B     production of the witnesses to the prosecution in the NDPS case.
      Such a judicial officer is between the devil and the deep sea. If
      he keeps on granting adjournments then the High Court will take
      action against him on the ground that he does not dispose of
      his cases efficiently and if he closes the evidence then the High
C     Court will take action on the ground that he has let the accused
      go scot-free. [Paras 14, 15] [870-F-H; 871-B-C]
                            Case Law Reference
      [1988] 1 Suppl. SCR 396            relied on            Para 5
      [1992] 2 SCR 364                   relied on            Para 6
D
      [1993] 1 SCR 296                   relied on            Para 6
      [2001] 1 Suppl. SCR 369            relied on            Para 6
      [2007] 3 SCR 198                   relied on            Para 7
E           CIVIL APPELLATE JURISDICTION : Civil Appeal Nos. 8950
      of 2011.
            From the Judgment and Order 05.10.2009 of the High Court of
      Judicature at Patna in CWJC No. 3719 of 2009.
            Braj Kishore Mishra, Ms. Aparna Jha, Ms. Kriti S., Abhishek
F     Yadav, Advs. for the Appellants.
           Sanjay Jain, ASG, Pravin H. Parekh, Sr. Adv., Yogesh Pachauri,
      Ms. Binu Tamta, Ms. Anil Katiyar, Kshatrshal Raj, Nikhil Ramdev,
      Ms. Tanya Chaudhry, Ms. Pratyusha Priyadarshi, M/S. Parekh & Co.,
      Gopal Singh, Srikaanth S., Advs. for the Respondents.
G
            The Judgment of the Court was delivered by
            DEEPAK GUPTA, J. (ORAL)
             1. In a country, which follows the Rule of Law, independence
      of the judiciary is sacrosanct. There can be no Rule of Law, there can
H     be no democracy unless there is a strong, fearless and independent
          KRISHNA PRASAD VERMA (D) THR. LRS. v.                                  865
      STATE OF BIHAR & ORS. [DEEPAK GUPTA, J. (ORAL)]

judiciary. This independence and fearlessness is not only expected at            A
the level of the Superior Courts but also from the District judiciary.
       2. Most litigants only come in contact with the District judiciary.
They cannot afford to come to the High Court or the Supreme Court.
For them the last word is the word of the Magistrate or at best the
Sessions Judge. Therefore, it is equally important, if not more important,       B
that the judiciary at the District Level and at the Taluka level is absolutely
honest, fearless and free from any pressure and is able to decide cases
only on the basis of the facts on file, uninfluenced by any pressure from
any quarters whatsoever.
       3. Article 235 of the Constitution of India vests control of the          C
subordinate Courts upon the High Courts. The High Courts exercise
disciplinary powers over the subordinate Courts. In a series of judgments,
this Court has held that the High Courts are also the protectors and
guardians of the judges falling within their administrative control. Time
and time again, this Court has laid down the criteria on which actions           D
should be taken against judicial officers. Repeatedly, this Court has
cautioned the High Courts that action should not be taken against judicial
officers only because wrong orders are passed. To err is human and
not one of us, who has held judicial office, can claim that we have never
passed a wrong order.
                                                                                 E
       4. No doubt, there has to be zero tolerance for corruption and if
there are allegations of corruption, misconduct or of acts unbecoming
a judicial officer, these must be dealt with strictly. However, if wrong
orders are passed that should not lead to disciplinary action unless there
is evidence that the wrong orders have been passed for extraneous
reasons and not because of the reasons on the file.                              F

       5. We do not want to refer to too many judgments because this
position has been laid down in a large number of cases but it would be
pertinent to refer to the observations of this Court in Ishwar Chand
Jain Vs. High Court of Punjab & Haryana and another1, wherein this
Court held as follows:                                                           G

         “14. Under the Constitution the High Court has control over the
         subordinate judiciary. While exercising that control it is under a
         constitutional obligation to guide and protect judicial officers. An
1
    (1988) 3 SCC 370                                                             H
866            SUPREME COURT REPORTS                          [2019] 12 S.C.R.


A           honest strict judicial officer is likely to have adversaries in the
            mofussil courts. If complaints are entertained on trifling matters
            relating to judicial orders which may have been upheld by the
            High Court on the judicial side no judicial officer would feel
            protected and it would be difficult for him to discharge his duties
            in an honest and independent manner. An independent and honest
B
            judiciary is a sine qua non for rule of law. If judicial officers are
            under constant threat of complaint and enquiry on trifling matters
            and if High Court encourages anonymous complaints to hold the
            field the subordinate judiciary will not be able to administer justice
            in an independent and honest manner. It is therefore imperative
C           that the High Court should also take steps to protect its honest
            officers by ignoring ill-conceived or motivated complaints made
            by the unscrupulous lawyers and litigants. Having regard to facts
            and circumstances of the instant case we have no doubt in our
            mind that the resolution passed by the Bar Association against
            the appellant was wholly unjustified and the complaints made by
D
            Shri Mehlawat and others were motivated which did not deserve
            any credit. Even the vigilance Judge after holding enquiry did not
            record any finding that the appellant was guilty of any corrupt
            motive or that he had not acted judicially. All that was said against
            him was that he had acted improperly in granting adjournments.”
E           6. Thereafter, following the dicta laid down in Union of India &
      Ors. Vs. A.N. Saxena2 and Union of India & Ors. Vs. K.K. Dhawan3,
      this Court in P.C. Joshi Vs. State of U.P. & Ors.4 held as follows:
            “7. In the present case, though elaborate enquiry has been
            conducted by the enquiry officer, there is hardly any material
F           worth the name forthcoming except to scrutinize each one of the
            orders made by the appellant on the judicial side to arrive at a
            different conclusion. That there was possibility on a given set of
            facts to arrive at a different conclusion is no ground to indict a
            judicial officer for taking one view and that too for alleged
G           misconduct for that reason alone. The enquiry officer has not
            found any other material, which would reflect on his reputation
            or integrity or good faith or devotion to duty or that he has been
      2
        (1992) 3 SCC 124
      3
        (1993) 2 SCC 56
      4
H       (2001) 6 SCC 491
          KRISHNA PRASAD VERMA (D) THR. LRS. v.                                   867
      STATE OF BIHAR & ORS. [DEEPAK GUPTA, J. (ORAL)]

         actuated by any corrupt motive. At best he may say that the view         A
         taken by the appellant is not proper or correct and not attribute
         any motive to him which is for extraneous consideration that he
         had acted in that manner. If in every case where an order of a
         subordinate court is found to be faulty a disciplinary action were
         to be initiated, the confidence of the subordinate judiciary will
                                                                                  B
         be shaken and the officers will be in constant fear of writing a
         judgment so as not to face a disciplinary enquiry and thus judicial
         officers cannot act independently or fearlessly. Indeed the words
         of caution are given in K.K. Dhawan case and A.N. Saxena
         case that merely because the order is wrong or the action taken
         could have been different does not warrant initiation of                 C
         disciplinary proceedings against the judicial officer. In spite of
         such caution, it is unfortunate that the High Court has chosen to
         initiate disciplinary proceedings against the appellant in this case.”
       7. In Ramesh Chander Singh Vs. High Court of Allahabad &
Anr.5, a three-judge Bench of this Court, after considering the entire            D
law on the subject, including the authorities referred to above, clearly
disapproved the practice of initiating disciplinary proceedings against
the officers of the district judiciary merely because the judgment/orders
passed by them are wrong. It was held thus:-
         “12. This Court on several occasions has disapproved the practice        E
         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       F
         action based on judicial orders, The High Court must take extra
         care and caution.”
         xxx                       xxx                        xxx
         “17. In Zunjarrao Bhikaji Nagarkar v. Union of India this                G
         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
5
    (2007) 4 SCC 247                                                              H
868            SUPREME COURT REPORTS                        [2019] 12 S.C.R.


A           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 Article 235 of the Constitution may
            exercise its supervisory jurisdiction. Nevertheless, under such
B
            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
C           them to severe disciplinary proceedings would ultimately harm
            the judicial system at the grassroot level.”
             8. No doubt, if any judicial officer conducts proceedings in a
      manner which would reflect on his reputation or integrity or there is
      prima facie material to show reckless misconduct on his part while
D     discharging his duties, the High Court would be entitled to initiate
      disciplinary cases but such material should be evident from the orders
      and should also be placed on record during the course of disciplinary
      proceedings.
            9. Coming to the facts of this case there are two charges against
E     the appellant, who was a judicial officer. The charges are as follows:
                                   CHARGE-1
            “You, Sri Krishna Prasad Verma while functioning as Additional
            Distt. & Sessions Judge, Chapra granted bail to M/s Bishwanath
            Rai, Sheo Nath Rai and Pradeep Rai on 11.7.2002 in S.T. No.514
F
            of 2001 arising out of Chapra (M) Khatra P.S. Case No.453/
            2000 registered U/s 302/34 I.P.C. notwithstanding the fact that
            the bail petitions of Bishwanath Rai was earlier rejected by this
            Hon’ble Court vide order dated 27.3.2001 and 4.7.2001 passed
            in Cr. Misc. No.34144/2000 and 15626/2001 respectively, that of
G           Sheo Nath Rai vide order 13.2.2001 and 26.11.2001 passed in
            Cr. Misc. No.3387/2001 and Cr. Misc. No.30563/2001
            respectively and that of Pradeep Rai vide order dated 28.2.2001
            passed in Cr.Misc. No.3599/2001.
            The aforesaid act on your part is indicative of some extraneous
H           consideration which tantamounts to gross judicial impropriety,
        KRISHNA PRASAD VERMA (D) THR. LRS. v.                                  869
    STATE OF BIHAR & ORS. [DEEPAK GUPTA, J. (ORAL)]

      judicial indiscipline, lack of integrity, gross misconduct and an act    A
      unbecoming of a Judicial Officer.
                              CHARGE-2
      You, Sri Krishna Prasad Verma while functioning as Additional
      District and Sessions Judge, Chapra with an intent to acquit Raju
                                                                               B
      Mistry, the main accused in N.D.P.S. Case No.15/2000 arising
      out of Revealganj P.S. Case No.137/2000 (G.R. No.1569 of 2000)
      registered under sections 22, 23 and 24 of the Narcotic Drugs
      and Psychotropic Substances Act, 1985 closed the proceeding
      in great haste resulting in acquittal of Raju Mistry, who was
      charged of driving a Jeep bearing No.W.B.C.4049 carrying 90              C
      Kg. Charas, without exhausting all coercive methods to record
      the statement of the Investigating Oficer of the case as there is
      no proof on the record to show that the non-bailable warrant
      issued against the said Investigating Officer was ever served on
      him.
                                                                               D
      The aforesaid act of yours is indicative of some extraneous
      considerations which tantamounts to gross judicial impropriety,
      judicial indiscipline, lack of integrity, gross misconduct and an act
      of unbecoming of a Judicial Officer.”
      10. As far as the first charge is concerned, a major fact, which         E
was not considered by the enquiry officer, the disciplinary authority as
well as the High Court was that the Additional Public Prosecutor, who
had appeared on behalf of the State had not opposed the prayer of the
accused for grant of bail. In case, the public prosecutor does not oppose
the bail, then normally any Judge would grant bail.
                                                                               F
        11. The main ground to hold the appellant guilty of the first charge
is that the appellant did not take notice of the orders of the High Court
whereby the High Court had rejected the bail application of one of the
accused vide order dated 26.11.2001. It would be pertinent to mention
that the High Court itself observed that after framing of charges, if the
                                                                               G
non-official witnesses are not examined, the prayer for bail could be
removed, but after moving the Lower Court first. The officer may have
been guilty of negligence in the sense that he did not carefully go through
the case file and did not take notice of the order of the High Court
which was on his file. This negligence cannot be treated to be
misconduct. It would be pertinent to mention that the enquiry officer          H
870            SUPREME COURT REPORTS                         [2019] 12 S.C.R.


A     has not found that there was any extraneous reason for granting bail.
      The enquiry officer virtually sat as a court of appeal picking holes in
      the order granting bail.
             12. It would be important to mention that it seems that later it
      was brought to the notice of the appellant that he had not taken note
B     of the order of the High Court while granting bail on 11.07.2002.
      Thereafter, he issued notice to all the three accused on 23.08.2002 i.e.
      within less than two months and cancelled the bail granted to all the
      three accused on 11.07.2002. If he had made the mistake of not seeing
      the whole file, on that being brought to his notice, he corrected the
      mistake. After the appellant cancelled the bail and the accused were
C     again arrested, they again applied for bail and this bail application was
      rejected by the appellant on 18.12.2002.
             13. After rejection of the bail application of the accused, two out
      of three accused moved the High Court. The High Court granted bail
      to one of the accused and the bail application of the other was rejected,
D     not on merits but on the ground that he did not disclose the fact that he
      had earlier moved the High Court for grant of bail. This itself is clear
      indicator of the fact that probably even the order passed by the appellant
      is not an incorrect one.
             14. Coming to the second charge, which is under the Narcotic
E     Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to
      as the “NDPS”. On 18.07.2002 the appellant, a Special Judge, closed
      the evidence of the prosecution which resulted in material witnesses
      not being examined and consequently the accused was acquitted. As
      far as this allegation is concerned, the enquiry officer on the basis of
F     the statements of two clerks of the Court has made lengthy observations
      that the appellant did not send any communication to the Superintendent
      of Police, the District Magistrate and other authorities to ensure the
      production of the witnesses. According to the enquiry officer, this being
      a serious matter, the evidence should not have been closed and the
      appellant should have made efforts to approach the senior officials to
G     get the witnesses produced. The Code of Criminal Procedure or the
      NDPS Act do not provide for any such procedure. It is the duty of the
      prosecution to produce the witnesses. Even in this case, interestingly,
      the Public Prosecutor had made a note on the side of the daily order-
      sheet that he is unable to produce the witnesses so the evidences may
H     be closed. We fail to understand how the appellant has been hanged
       KRISHNA PRASAD VERMA (D) THR. LRS. v.                                871
   STATE OF BIHAR & ORS. [DEEPAK GUPTA, J. (ORAL)]

whereas no action has been taken or recommended against the Public          A
Prosecutor concerned. We are constrained to note that the enquiry
officer, while conducting the enquiry, has noted, while considering the
arguments of the delinquent official, that he had raised a plea that he
closed the evidence because the Public Prosecutor had made the
statement, but while holding the appellant guilty of misconduct no
                                                                            B
reference has been made to the statement of the Public Prosecutor.
       15. We may also note that the case of the appellant is that he
had given 18 adjournments for production of the witnesses to the
prosecution in the NDPS case. Such a judicial officer is between the
devil and the deep sea. If he keeps on granting adjournments then the       C
High Court will take action against him on the ground that he does not
dispose of his cases efficiently and if he closes the evidence then the
High Court will take action on the ground that he has let the accused
go scot-free. That is not the purpose of Article 235 of the Constitution
of India. That is why we again repeat that one of the responsibilities
of the High Court on the administrative side is to ensure that the          D
independence of the District judiciary is maintained and the High Court
acts as a guardian and protector of the District judiciary.
       16. We would, however, like to make it clear that we are in no
manner indicating that if a judicial officer passes a wrong order, then
no action is to be taken. In case a judicial officer passes orders which    E
are against settled legal norms but there is no allegation of any
extraneous influences leading to the passing of such orders then the
appropriate action which the High Court should take is to record such
material on the administrative side and place it on the service record
of the judicial officer concerned. These matters can be taken into          F
consideration while considering career progression of the concerned
judicial officer. Once note of the wrong order is taken and they form
part of the service record these can be taken into consideration to deny
selection grade, promotion etc., and in case there is a continuous flow
of wrong or illegal orders then the proper action would be to
compulsorily retire the judicial officer, in accordance with the Rules.     G
We again reiterate that unless there are clear-cut allegations of
misconduct, extraneous influences, gratification of any kind etc.,
disciplinary proceedings should not be initiated merely on the basis that
a wrong order has been passed by the judicial officer or merely on the
ground that the judicial order is incorrect.                                H
872             SUPREME COURT REPORTS                    [2019] 12 S.C.R.


A            17. In view of the above discussion, we allow the appeal, set
      aside the judgment of the High Court and quash all the orders passed
      against the delinquent officer. He is directed to be given all
      consequential benefits on or before 31.12.2019. The appeal is allowed
      with costs of Rs.25,000/-.
B
      Kalpana K. Tripathy                                     Appeal allowed.




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