Suresh Rajan Vs. the Registrar General - Court Judgment

IN THE HIGH COURT OF JUDICATURE AT MADRAS DATED:

7. 1.2014 CORAM: THE HON'BLE MR.JUSTICE A.ARUMUGHASWAMY Writ Petition (MD) Nos.16368 and 19823 of 2013 and M.P.Nos.1 to 2 of 2013 Suresh Rajan ... Petitioner in W.P.(MD) 16368/2013 Bharathi ... Petitioner in W.P.(MD) 19823/2013 Versus 1. The Registrar General, The Madras High Court High Court Buildings, Chennai.

2. The Registrar (Judicial), The Madurai Bench of Madras High Court, Madurai. ... Respondents 1 & 2 in both W.Ps.

3. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Kanyakumari Detachment @ Nagercoil, Kanyakumari District. ... 3rd Respondent in W.P.No.16368/2013 Prayer in W.P.No.16368 of 2013:- Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Certiorari calling for the records relating to the impugned proceedings of the second respondent in C.O. Letter No.174 of 2013 dated 23.07.2013 and quash the same as illegal. Prayer in W.P.No.19823 of 2013:- Petition filed under Article 226 of the Constitution of India praying for the issuance of writ of Declaration to declare the administrative docket order made by this Court in Crl.R.C.(MD) No.445 of 2013 dated 10.07.2013, 11.07.2013 and 23.07.2013 and the consequential communication of the second respondent in C.O.No.152 of 2013 dated 10.07.2013, C.O.No.154 of 2013 dated 11.07.2013 and C.O.Letter No.174 of 2013 dated 23.07.2013 as illegal and unconstitutional and therefore void. For Petitioners : Mr.Ajmal Khan Sr.Cl. For RR1and 2 : Mr.R.Sureshkumar For R3 : Mr.K.Chellapandian, Additional Advocate General. COMMON ORDER

W.P.No.16368 of 2013 has been filed by Suresh Rajan, for the issuance of writ in the nature of Certiorari to quash the impugned proceedings of the second respondent in C.O.Letter No.174 of 2013 dated 23.07.2013. W.P.No.19823 of 2013 has been filed by his wife Bharathi for the issuance of writ in the nature of Declaration to declare the administrative docket order made by this Court in Crl.R.C.(MD) No.445 of 2013 dated 10.07.2013, 11.07.2013 and 23.07.2013 and the consequential communication of the second respondent in C.O.No.152 of 2013 dated 10.07.2013, C.O.No.154 of 2013 dated 11.07.2013 and C.O.Letter No.174 of 2013 dated 23.07.2013 as illegal and unconstitutional and therefore void.

2. The facts in brief which are necessary for the disposal of these writ petitions are as follows:- Mr.Suresh Rajan was the Minister for Tourism and Registration, Government of Tamil Nadu for the period between 13.05.2006 and 15.05.2011 and was also the Member of the Legislative Assembly elected from the Nagercoil Constituency as a candidate belonging to the D.M.K. Party in the elections held in 2006. However, in the election held in 2012, he lost the election.

3. A case in Crime No.7 of 2011 was registered against him and three others on 01.10.2011 by the third Respondent for the offences punishable under Section 13(2) r/w 13(1)(C) of the Prevention of Corruption Act, 1988, alleging that the petitioner abused his position as a Minister and thereby amassed wealth during his tenure as a Minister in the name of himself and his family members. The third Respondent laid a charge sheet against him and three others on the file of the Special Judge Cum Chief Judicial Magistrate, Nagercoil as Special Case No.4 of 2012. While so, the third respondent filed an application under Section 3(1) of the Criminal Law (Amendment) Ordinance, 1944 on the file of the learned Principal District and Sessions Judge, Nagercoil, seeking attachment of his properties and the same was taken on file in Crl.O.P.No.1 of 2012. In the said application, a petition was filed in Cr.M.P.No.2745 of 2012 seeking for interim attachment of his property and the same was allowed vide order dated 13.07.2012. Aggrieved by the said order the petitioner filed a Revision Petition in Crl.R.C.(MD) No.445 of 2013. The said Crl.R.C. was disposed of by this Court by its order dated 10.07.2013, directing the learned Principal District and Sessions Judge, Nagercoil, to pass a reasoned order, before passing the final order in the Crl.O.P.

4. When the factual matrix was thus, the aged father of the petitioner, who is arrayed as Accused No.3 in Spl.Case No.4 of 2012, who is a paralytic patient requiring continuous medication, preferred an application on 13.08.2013 under Section 205 Cr.P.C., on the file of the learned Chief Judicial Magistrate, Nagercoil seeking to dispense with his personal appearance and seeking to permit him to be represented through a counsel due to his immobility and the same was dismissed holding that this Court has passed an order dated 23.07.2013 in Crl.R.C.No.445 of 2013, directing the learned Chief Judicial Magistrate to serve summons to the left out accused and frame charges immediately and inform the same to this Court within three weeks from the said date and therefore dismissed the application filed under Section 205 Cr.P.C. Whereas, there was no such order in Crl.R.C.No.445 of 2013 passed as early as on 10.07.2013 and even in the said order, no such direction was issued by this Court. Further, the cause list published by the Registrar Judicial on 23.07.2013 also do not reflect the listing of the said case before this Court on the said day.

5. While so, the learned Chief Judicial Magistrate, Nagercoil issued a notice on 30.07.2013 along with the copy of the impugned proceedings addressed to his Advocate in the trial Court, stating that he is in receipt of the impugned proceedings in C.O.Letter No.174 of 2013 dated 23.07.2013, whereby he has been directed to summon the accused in the case and report the same to this Court. Thereafter, the petitioner came to know that the Registrar Judicial has issued the impugned proceedings stating that an order has been passed on 23.07.2013 in Crl.R.C.No.445 of 2013 when no such order was passed by this Court and this Court had become functus officio as early as on 10.07.2013. Further, the Crl.R.C.(MD) No.445 of 2013 does not deal with the case pending on the file of the learned Chief Judicial Magistrate, Nagercoil in Spl.Case No.4 of 2012, but in fact it was filed challenging the order of interim attachment, made by the learned District and Sessions Judge, Nagercoil in Crl.M.P.No.2475 of 2013 in Crl.O.P.No.1 of 2012 dated 13.07.2012.

6. Due to the impugned order, which is said to have been passed on the basis of a non existing order of this Court, the Chief Judicial Magistrate, Nagercoil, is showing Militant haste in the case as though this Court has directed him to straight away convict him and his family in the case. The impugned order has been passed by the second Respondent without issuing any notice to the petitioner herein or other accused in the said case and the same is in gross violation of the principles of natural justice. Hence, he has come forward with the present writ petition.

7. The petitioner in W.P.No.19823 of 2013 was able to know from the counter affidavit filed by the second respondent in W.P.No.16368 of 2013 stating that the proceedings dated 23.07.2013 was only a communication issued in furtherance of the order made by this Court in Crl.R.C.(MD) No.445 of 2013 and the learned Judge who dealt with the said criminal revision in Crl.R.C.(MD) No.445 of 2013 has in fact after having finally disposed of the Criminal Revision by his order dated 10.07.2013 had in fact made orders on 10.07.2013, 11.07.2013 and 23.07.2013, issuing directions to the learned Chief Judicial Magistrate cum Special Judge, Nagercoil, Kanyakumari District to state reasons as to why service of summons to all the accused viz., wife and father of A1 have not been completed for the last 1 = years and also directed to serve summons to the left out accused and frame charges immediately and inform the same to this Court.

8. According to the petitioner once an order is made by a Court finally disposing of the case, the Court becomes functus officio and cannot thereafter pass any judicial order not even can the court entertain a review application by virtue of Section 362 of Cr.P.C. Thus, the order made by this Court in Crl.R.C.(MD) No.445 of 2013 on 10.07.2013, 11.07.2013 and 23.07.2013 cannot be judicial orders and are at best administrative orders. As the said orders have been passed without hearing the petitioner and in contravention of the statutory bar under Section 362 Cr.P.C. that too in respect of a proceeding which was never in lis before this Court is nullum in the eye of law and warrants interference by this Court. The learned District and Sessions Judge, Nagercoil also immediately after receipt of the impugned orders, by his order dated 30.08.2013 made absolute the order of attachment solely on the basis of the order made by this Court. Hence the present writ petition to quash the impugned orders.

9. The learned senior counsel appearing for the petitioner contended that the petitioner in both the writ petitions are A1 and A2 before the Criminal Court. The petitioner in W.P.No.16368 of 2013 was MLA upto 2011 and in 2012 he lost in the election. Thereafter, the Government has preferred a complaint against him and his family members alleging that the petitioner abused his position as a Minister and thereby amassed wealth during his tenure as a Minister in the name of himself and his family members. On the basis of the said complaint a case in Crime No.7 of 2011 was registered against him and three others on 01.10.2011 by the third Respondent for the offences punishable under Section 13(2) r/w 13(1)(C) of the Prevention of Corruption Act, 1988 and on the basis of the final report filed by the third respondent the learned Special Judge Cum Chief Judicial Magistrate, Nagercoil has taken cognizance of the offence as Special Case No.4 of 2012. An interim petition was filed by the Government in Cr.M.P.No.2745 of 2012 seeking for interim attachment of his property and the same was allowed vide order dated 13.07.2012. Aggrieved by the said order the petitioner filed Crl.R.C.(MD) No.445 of 2013. The said Crl.R.C. was disposed of by this Court by its order dated 10.07.2013, directing the learned Principal District and Sessions Judge, Nagercoil, to pass a reasoned order, at the time of passing the final order in the Crl.O.P.

10. In the meanwhile, the aged father of the petitioner has filed an application under Section 205 Cr.P.C.,on the file of the learned Chief Judicial Magistrate, Nagercoil seeking to dispense with his personal appearance and seeking to permit him to be represented through a counsel due to his immobility and the same was dismissed holding that this Court has passed an order dated 23.07.2013 in Crl.R.C.No.445 of 2013, directing the learned Chief Judicial Magistrate to serve summons to the remaining accused and frame charges immediately and inform the same to this Court within three weeks from the said date and hence the learned Chief Judicial Magistrate, has dismissed the application filed under Section 205 Cr.P.C. Therefore, the order passed behind his back is not in accordance with law as per the proposition laid down by the Supreme Court in 2001 SC169and he has contended that the impugned order order is non-exist and it has to be recalled since as per Section 362 of Cr.P.C. it amounts to reviewing the matter. Hence, he prays that the impugned order has to be set aside. He relied upon the judgment reported in A.R.Antulay's case (1988(2)SCC602.

11. Now, the short point for my consideration is whether the order passed by this court comes under section 362 of the Code of Criminal Procedure, viz., whether it will amount to altering the judgment in the absence of the petitioner's counsel has to be seen. From the perusal of the records, it is seen that the learned Principal District Judge, Nagercoil has passed an order dated 13.07.2012 made in Cr.M.P.No.2745 of 2012 allowing interim attachment of the property filed by the third respondent under section 3(1) of the Criminal Law (Amendment) Ordinance, 1944. Aggrieved over the said order Accused 1 to 4 have preferred a Revision in Crl.R.C.(MD) No.445 of 2013. The accused are the former Minister and his family members. The matter has been disposed of by this Court while the Court was sitting in the Madurai Bench on 10.7.2013 by confirming the order of interim attachment.

12. While considering the petition, this court has noticed that a criminal case has been registered in the year 2011 and the accused have not been served with summons and the case has been pending for the appearance of the accused. The summons could not be served by the Vigilance and Anti Corruption Police and the case has been adjourned from time to time nearly for more than two years. After filing Crl.R.C. this Court has found that no irregularities have been noticed in the order of the trial Court. Hence, the Crl.R.C. filed by the accused has been dismissed on the same day. Separate directions have been issued to the concerned Judge directing him to complete the service of summons through Vigilance and Anti-corruption Police for the remaining accused and to frame charges as per the procedures known to law. The two orders have been pronounced in the open court in the presence of the learned Senior Counsel separately. Since the other one is administrative instruction to the trial Court, the Registry has forwarded the Administrative order to the District Court instead of Chief Judicial Magistrate's Court, directing the District Judge to secure the presence of the accused instead of Chief Judicial Magistrate to whom the Vigilance and Anti-corruption case is pending before him.

13. After reading this order, on 10.7.2013, Registrar Judicial, has directed the Principal District Judge to ascertain as how long the case has been pending and forward a xerox copy of the docket sheet to be placed before the Madurai Bench. After getting reply from the Principal District Judge, the Registry put up the papers on 11.7.2013 and placed before the Court a xerox copy of the notes paper from which, it came to light that the case was pending before the Chief Judicial Magistrate for about one and half years for the presence of the accused and hence, this court informed the Chief Judicial Magistrate concerned to direct the Special Vigilance Officer, Vigilance and Anti-corruption, to serve summons to the remaining accused and frame the charges immediately and inform this court.

14. Thereafter, Chief Judicial Magistrate has passed an order dated 30.7.2013 giving notice to the accused for their appearance on 16.8.2013. It appears A3, father of A1 has filed application under section 205 of the Code of Criminal Procedure and the Chief Judicial Magistrate passed a detailed order on merits after discussing citations placed by both sides and at last he quoted the instructions issued by this Court and dismissed the petition on the ground that the FIR has been registered and the matter has been pending for six long years and the application filed on health ground is not maintainable.

15. On perusal, it is seen that the Chief Judicial Magistrate has disposed of the application only on merits and he incidentally referred that there is yet another observation made by the Madurai Bench for not serving the summons for a long period. Therefore, that aspect also has been referred and later on dismissed the application. Hence, he has filed the revision.

16. Now, we have to see whether the Administrative instructions issued by this Court is tantamount correction of judgment which will attract Section 326 of Cr.P.C. If there is a correction in the judgment which affect the rights of the accused has to be seen.

17. In 'K' A JUDICIAL OFFICER, IN RE ((2001) 3 SCC54 presided by the Hon'ble Mr.Justice Dr.A.S.Anand, The Chief Justice of India, and the Hon'ble Mr.Justice R.C.Lahoti, in a similar occasion has held that in the Judicial Order making remarks against the Judicial Officer is not appreciable. The control so vested is administrative and Judicial and disciplinary. The role of High Court is also of a friend philosopher guide of Judiciary Subordinate to the High Court. The relevant portion of the Judgment runs as follows:- ".13. It was so said by a Special Bench of three Judges presided over by Tek Chand, J.

in Philip William Ravanshawe Hardless v. Gladys Isabel Hardless (AIR1940Lah. 82) (AIR Headnote) ".A passage which is not necessary to the conclusion of the Judge nor even necessary to his argument and is likely to militate seriously against party's earning a living in his profession should be expunged from the judgment.".

14. In A.M.Mathur v. Pramod Kumar Gupta (1990) 2 SCC533 this Court sounded a note of caution emphasising a general principle of highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct and said: (SCC pp. 538-39, para 13) ".13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our Judges. This quality in decision-making is as much necessary for Judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the Judge has failed in these qualities, it will be neither good for the Judge nor for the judicial process. ". ".19. In the present case, it may be that the learned Metropolitan Magistrate in initiating contempt proceedings and taking cognizance of substantive offences under the Indian Penal Code against the officials of the Public Works Department was not properly advised or was at the worst indulging in a misadventure and therefore to the extent of quashing of the proceedings by the High Court no interference may be required. .......The fact remains that the observations were made by the High Court without affording the Metropolitan Magistrate an opportunity of explaining or defending herself The remarks were not necessary for the decision of the case by the High Court as an integral part thereof.".

18. The existence of the power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial pronouncements have their own mischievous infirmities. (1)the Judicial Officer is condemned unheard which is violative of principles of natural justice. (2) the harm caused by such criticism or observation may be incapable of being undone. (3) human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the Judge who had decided the case against him. (4) seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court. Bearing all these aspects in mind, this Court had given a direction separately in the form of administrative instruction. Further, this Court is empowered to give suitable administrative instructions under Article 227 of Constitution of India. Section 397 and 401 of Cr.P.C. also enable this this Court to give such directions to the trial Court. This court, having power to give suitable administrative instruction to any Judicial Officer, bearing the situation in its mind, has given the administrative instruction to the Chief Judicial Magistrate, that too regarding the service of the summons to the accused.

19. The said order was also dictated in the open Court only in the presence of the learned senior counsel appearing for the petitioners. Therefore, it does not come, in any way within the purview, of Section 362 of the Code of Criminal Procedure and it is not affecting the right of the accused also. This Court has issued directions following the guidelines issued by the Apex Court in (2001) (3) SCC54(cited supra). Hence, I am of the view that the writ petitions are frivolous, unnecessary and are filed only to protract the matter and are deserve to be dismissed with heavy cost. But, considering the overall facts and circumstances, this court is merely dismissing the writ petitions without any order as to costs. The connected miscellaneous petitions are also dismissed. No costs. 7.1.2014 Index: Yes Internet: Yes gr/ssk. To 1.The Registrar General, High Court, Madras.

2. The Registrar (Judicial), The Madurai Bench of Madras High Court, Madurai.

3. The Deputy Superintendent of Police, Vigilance and Anti Corruption, Kanyakumari Detachment @ Nagercoil, Kanyakumari District. A.ARUMUGHASWAMY, J gr/ssk. W.P.Nos.16368 and 19823 of 2013 7.1.2014