Praful Prabhakarbhai Harshe vs The State of Gujarat and Another

K.A. Puj, J.—The petitioner as a liquidator of Visnagar Nagarik Sahakari Bank Ltd., has filed this petition u/s 482 of the Criminal

Procedure Code, seeking declaration that the remarks and strictures passed by the learned Judge in para-13 of order dated 8.4.2005 passed

below Criminal Misc. Application No. 1133/2005 in so far as it relates to petitioner are wrong, illegal, unwarranted, uncalled for and further

prayed to expunge the same.

This Court has issued rule on 25.4.2005 and after hearing Mr. Rajeshwar J. Dave, learned advocate for the petitioner and learned APP, the

Court passed an order staying operation of the order dated 8.4.2005 qua the observations made against the petitioner and more particularly in

para-13 of the order, till the returnable date. The said interim relief was continued thereafter.

Mr. Rajeshwar Dave, learned advocate appearing for the petitioner has submitted that the petitioner was appointed as Liquidator of the

Visnagar Nagrik Sahakari Bank Ltd., on 1.8.2002. Upon scrutiny of the records of the Bank the petitioner found that there was mismanagement

and large scale irregularities were committed by the earlier management of the Bank and therefore, he has directed the Manager of the Bank to

lodge a complaint against the earlier management of the Bank and accordingly, complaint bearing CR No. 452/2002 was filed on 30.8.2002. He

has further submitted that one of the persons against whom the Bank has lodged complaint was Mr. Mansukh V. Pethani and Mr. Rasik V.

Pethani who had preferred Criminal Misc. Application No. 2308/2003 and 2307/2003 respectively and both the said applications were allowed

and they were enlarged on bail by the City Sessions Court, Ahmedabad, on condition that they shall pay the principal amount in 24 monthly

installments. He has further submitted that as per the said order they have also handed over post dated cheques but after the initial payment the

cheques issued by them were returned dishonoured. The petitioner, therefore, had informed the ACP SE Division to initiate appropriate action for

cancellation of their bail.

Mr. Dave further submitted that the said persons were arrested in connection with the complaint bearing CR No. 199/2005 lodged by an

individual for various offences. They have therefore preferred Criminal Misc. Application No. 1133/2005 which came up for hearing on 8.4.2005

before the learned Additional City Sessions Judge, Ahmedabad. During the course of arguments, the learned APP pointed out to the learned Judge

that the said persons were also defaulters in Complaint No. 452/2002 and had not complied with the undertaking given by them for their

enlargement of bail. The learned Judge, therefore, while rejecting the said bail application observed in para-13 of the order that it may be

presumed that this is due to consent, connivance or negligence on the part of the Liquidator of the Visnagar Bank. He has further observed that it is

necessary to send copies of this order to the Additional Secretary, Co operation Department and Registrar, Co-operative Societies to take

appropriate action in the matter in the interest of depositors.

Mr. Dave further submitted that the aforesaid observations are made under presumption and that the same is a clear abuse of process of Court

and are uncalled for and unwarranted. He has further submitted that the learned Judge could have conveniently avoided the said observations while

deciding the application independently. He has further submitted that by observing so, the learned Judge has also not followed the principles of

natural justice and judicial norms and also disregarded the well settled principles of law. He has further submitted that the said observation will

affect the spotless career of the petitioner for no fault on his part. He has, therefore, submitted that the petitioner has approached this Court by way

of this petition for expunging the said remarks / strictures passed by the learned Additional City Sessions Judge, Ahmedabad against the present

petitioner.

In support of his submissions Mr. Dave relied on the decision of this Court in the case of State Vs. N.C. Jain, wherein it is held that While

discharging his judicial functions, including the pronouncement of judgment, a Judge enjoys statutory protection. He is not expected to abuse that

protection by expressing therein his own views on such extraneous matters which are likely to spark off confrontation with other departments, or

criticism by the public. It is also held therein while expunction of the concerned paragraphs that the judgment was not the proper medium for giving

vent to his feelings, and that too in such a bitter and sweeping style, in his judgment which was expected to be confined only to the facts of the

cases which were being disposed of through it.

Mr. Dave relied on another decision in the case of Panchanan Parida Vs. Subdivisional Judicial Magistrate, wherein it is held that the cardinal

rule of administration of justice is that freedom and independence of Judges and Magistrates must be maintained and they must be allowed to

perform their functions freely and fearlessly and without undue interference by anybody, even the higher courts. At the same time, it must be borne

in mind that in expressing their opinion, the Judges and Magistrates must be guided by considerations of justice, fairplay and restraint and the

remarks shall not lack judicial poise, moderation and sobriety. Any stricture by a Judge or a Magistrate in their judgments against any person or

authority must satisfy three test; Firstly, the person or authority whose conduct is in question is before the Court or has an opportunity of explaining

or defending himself'' secondly, there is evidence on record bearing on what conduct justifying the remarks; and thirdly, it is necessary for the

decision of the case as an integral part thereof to animadvert on that conduct. Thus, uncalled for, undeserving, unjustified or unnecessarily

derogatory or disparaging remarks should be avoided by Judges and Magistrates.

Mr. Dave has further relied on the decision of Hon''ble supreme Court in the case of Anjani K. Verma v. State of Bihar and Anr., reported in

(2004)11 S CC 188, wherein it is held that, A judicial officer who exceeds the limits of propriety and conduct and does not render justice in

accordance with the facts of the case and the law, needs no protection from the superior Courts. But, at the same time, while passing strictures

against a member of the subordinate judiciary utmost care and caution is required to be taken, also having regard to the stress and conditions under

which, by and large, the judicial officers have to render justice.

Lastly Mr. Dave relied on the decision of the Hon''ble Supreme Court in the case of Tessta Setalvad and Another Vs. State of Gujarat and

Others, wherein it is held that observations should not be made by Courts against persons and authorities, unless they are essential or necessary for

decision of the case. Rare should be the occasion and necessities alone should call for its resort. The Court therefore issued the directions that the

observations of the High Court, against the appellants quoted above shall stand expunged and deleted from the judgment of the High Court, and

consequently, must be treated as having never existed or being part of the High Court judgment.

Mr. H.L. Jani, learned APP appearing for the respondent "" State on the other hand supported the order passed by the learned Additional city

Sessions Judge, Ahmedabad.

After having heard the learned advocate for the petitioner and the learned APP for the State and after having gone through the impugned order

passed by the learned Additional City Sessions Judge, Ahmadabad, the Court is of the view that though the Bank in question was indulged in the

various illegalities and irregularities and Directors and Officers were alleged have been involved to some extent and have caused damage to the

Bank, at the same time, the entire burden could not be thrown on the Liquidator. It is also not just and proper. It is true that on return of the

cheques strong actions are required to be taken by the Liquidator against the defaulters. He has simply informed the ACP for taking appropriate

action. He has, however, not moved any application for cancellation of bail nor filed any complaint u/s 138 of the Negotiable Instrument Act, when

the cheques were dishonoured. However, as against this, the explanation tendered before the Court was that in none of the cases, any such

application was ever filed. He has simply informed the investigating agency for taking appropriate action in the matter. Moreover, in this particular

case after the cheques were bounced. Firstly, the Bank has recovered an amount of Rs. 1,71,00,000/- upto 17.8.2005 and again on 18.8.2005 an

amount of Rs. 30,00,000/- was recovered. One property situated at C.G. Road is attached by the Bank and put in auction. The same is under

progress. In this view of the matter, criminal complaint u/s 138 was not filed by the Bank against the said accused.

Considering the above aspects of the matter and decided case law on the subject, the Court is of the view that the following observations

made by the learned Sessions Judge in his order are required to be expunged. It may be presumed that this is due to consent, connivance or

negligence on the part of the Liquidator of the Visnagar Bank. It is necessary to send copies of this order to the Additional Secretary, Co

operation Department and Registrar, Co-operative Societies to take appropriate action in the matter in the interest of depositors.

While expunging the above observations from the impugned order, the Court makes it clear that on the basis of these observations only no

action can be taken against petitioner. However, taking overall view of the matter and considering the entire facts of the case, if the concerned

authority takes any action, the expunction of the observations would not come in the way of such authority.

With these directions and observation this petition is allowed to the aforesaid extent. Rule is made absolute to the aforesaid extent.