Ram Pratap Singh vs Chief Judicial Magistrat and Others

B.K. Rathi, J.—This is a petition u/s 482, Cr. P.C. to quash the impugned order dated 4.5.1999 passed by opposite party No. 2, the then Chief Judicial Magistrate, Mathura in Case No. 1054/1 of 1999, State v. Yogesh and others, except in respect of fixing the date in the abovementioned criminal case, i.e., 2.7.1999.

I have heard Sri U. K. Saxena, learned Counsel for the applicant, Sri Sunil Ambwani, learned Counsel for the opposite party No. 2, Sri Anoop Trivedi, learned Counsel for the opposite party No. 3, Sri V. C. Tiwari, learned Counsel for the opposite party Nos. 4 and 8 and the learned A.G.A. The facts giving rise to this petition in brief are as follows.

The applicant is complainant in Case No. 1054/1 of 1999 under Sections 498A, 323, 506, I.P.C. and 3/4, D. P. Act which is pending in the Court of C.J.M., Mathura. In that case one date fixed was 4.5.1999 which was for evidence. The prosecution moved an application for adjournment and for issuing non-bailable warrants of arrest of the witnesses. That application was rejected by C.J.M., Mathura. He also observed that the parties are relatives of Sri Amarpal Singh, Judicial Magistrate, Mathura, opposite party No. 3 and on his request he got the matter compromised on 27.3.1999. That parties appeared before him on that date and agreed that it is impossible to continue the marriage and they further agreed to take divorce. It was agreed that Yogesh, opposite party No. 4 will pay a sum of Rs. 4 lacs to his wife and in his presence Rs. 4 lacs were paid on 27.3.1999 by Sri Rampal Singh, opposite party No. 5 in his presence. It was also agreed that the compromise shall be filed as and when the charge-sheet is received. That money was paid in his presence and the case be fixed on priority. Therefore, there is no question of issue of warrants against the witnesses as the matter has been compounded. He further observed that after the compromise, the applicant and his daughter has turned out to be dishonest and want to misappropriate a sum of Rs. 4 lacs paid in his presence. That therefore, there is no justification of his hearing this case. He, therefore, fixed the case for hearing after two months.

It is contended by the learned Counsel for the applicant that entire facts incorporated in the ordersheet are totally false. That no compromise took place nor a sum of Rs. 4 lacs were paid. That the opposite party No. 3, Amarpal Singh is also Judicial Magistrate posted at Mathura. He was impleaded as party and notice was issued to him. He has filed affidavit that it is totally false that parties are related to him. He further alleged that parties are not even known to him and he never asked opposite party No. 2, C.J.M., Mathura to get the matter compounded.

Learned Counsel for the applicant also contended that the conduct of the C.J.M. shows that he was interested in the case and for that reason, he has mentioned the entire false facts. It is alleged that opposite party No. 4 is the husband and opposite party No. 5 is father-in-law of the victim. The bail application of opposite party No. 5, father-in-law was rejected by the Magistrate and he was granted bail by the Sessions Judge in February, 1999. Thereafter, opposite party No. 4, the husband of the victim appeared before opposite party No. 2, who took charge of the Court of C.J.M. on 26.3.1999. He was released on bail by opposite party No. 2 on that very day. It is contended that it is very surprising that the Magistrate refused the bail to the father-in-law which was granted by the Court of Sessions, but the husband was enlarged on bail on the day he surrendered in the Court by the opposite party No. 2.

It is also contended that the charge-sheet was submitted on 2.4.1999 and accused were summoned for 5.4.1999. Thereafter another date fixed was 12.4.1999. Accused appeared on 12.4.1999 and charges were framed on that very date and 20.4.1999 was fixed for evidence. No summons were served on witnesses and witnesses did not appear on 22.4.1999. Therefore, on that the case was again fixed for evidence on 22.4.1999. Thereafter the case has been fixed for evidence on 28.4.1999 and again on 4.5.1999 was fixed for evidence and bailable warrants were issued. It is contended that this unusual haste was shown by opposite party No. 2 in the trial of the case so that he may dispose of the case himself. It is further alleged that large number of cases were pending in the Court of C.J.M., Mathura in which dates for evidence are fixed after several months. That this shows mala fide conduct of the opposite party No. 2.

The opposite party Nos. 4 to 8 has opposed the petition and alleged that the entire version mentioned in the order dated 4.5.1999 is correct and in fact Rs. 4 lacs were paid by opposite parties. It is alleged that a sum of Rs. 2 lacs were taken as a loan Annexure-3, which is receipt ; and Rs. 2 lacs were drawn from the account books. However, the account books does not show that Rs. 2 lacs were drawn for the purpose of payment to the applicant. The receipt, Annexure-3 to the counter-affidavit is unstamped and even does not bear revenue stamp.

It may also be contended that a sum of Rs. 4 lacs is alleged to have been paid in cash. There is no writing regarding the payment of amount nor there is any writing regarding the compromise. However, the question whether the amount of Rs. 4 lacs were paid or not is to be decided by the Court after the evidence and it is not proper for me to record any finding on this point without opportunity to the parties producing evidence. The scope of this petition is limited only to the extent whether the entire order of that date, as prayed, is liable to be quashed.

The opposite party No. 2 also filed counter-affidavit in which he has supported the facts mentioned in the order sheet. However, during arguments learned Counsel for the opposite party No. 2, Sri Sunil Ambwani has clearly stated that he does not oppose the petition. His arguments are two-fold. The first is that the judicial officers should not be impleaded as party to the proceedings and he has been unnecessarily harassed for which he should be properly compensated. The other contention is that there is presumption regarding the correctness of the Judges notes and it cannot be challenged in the petition u/s 482, Cr. P.C. This argument has also been adopted by the learned Counsel for the opposite party Nos. 4 to 8.

Regarding the first argument of Sri Sunil Ambwani, learned Counsel for the opposite party No. 3, has referred to the case of Savitri Devi Vs. District Judge, Gorakhpur and Others, The reliance has been placed on following observation of paragraph No. 14 of the judgment which is as follows:

Before parting with his case, it is necessary for us to point out one aspect of the matter which is rather disturbing. In the writ petition filed in the High Court as well as the SLP filed in this Court, the District Judge, Gorakhpur and the I Vth Additional Civil Judge (Junior Division), Gorakhpur are shown as Respondents and in the SLP they are shown as contesting Respondents. There was no necessity for impleading the judicial officers who disposed of the matter in a civil proceeding when the writ petition was filed in the High Court ; nor is there any justification for impleading them as parties in the SLP and describing them as contesting Respondents. We do not approve of the course adopted by the Petitioner which would cause unnecessary disturbance to the functions of the concerned judicial officers. They cannot be in any way equated to the officials of the Government. It is high time that the practice of impleading judicial officers disposing of civil proceedings as parties to writ petitions under Article 226 of the Constitution of India or Special Leave Petitions under Article 136 of the Constitution of India was stopped. We are strongly deprecating such a practice.

It may be mentioned that this observation was made by the Apex Court in civil appeal. The present are proceedings u/s 482, Cr. P.C., in which request has been made to quash the order of a judicial officer on the ground that incorrect facts has been incorporated by him and the order is mala fide. In the present case, the petition is not based on the facts on the record of the case. On the other hand, the order has been passed by Chief Judicial Magistrate on the facts in his personal knowledge which does not form part of the record. As these facts mentioned by the Presiding Officer from the personal knowledge have been challenged, and the Presiding Officer has mentioned certain facts beyond the record on personal knowledge, therefore, it was not only proper but was necessary to implead him as party so that he may have opportunity to support or deny the facts and to explain that there is no mala fide on his part. In this case in the ordersheet, it has also been mentioned that the parties are relatives of another judicial officer posted in the same district and, therefore, it was also necessary to call that officer to ascertain the fact whether the parties are related to him or not. In the circumstances, the above observation of the Hon''ble Supreme Court is of no help and the officers were rightly impleaded in this petition. The officers are not entitled to any compensation.

The last argument of the learned Counsel for the opposite parties is that the Judges notes should be presumed as correct and they cannot be challenged u/s 482, Cr. P.C. In support of the argument, the learned Counsel for the opposite party Nos. 3 and 4 to 8 has referred to the case of State of Maharashtra Vs. Ramdas Shrinivas Nayak and Another, . It was held by the Hon''ble Supreme Court that Judges record is conclusive. Neither lawyer nor litigant may claim to contradict it, except before the Judge himself, but nowhere else (Paragraph No. 8). Prior to his conclusion, the observations made in paragraph No. 4 of the judgment are relevant which are reproduced below:

We are afraid that we cannot launch into an enquiry as to what transpired in the High Court. (emphasis given by me). It is simply not done. Public policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments cannot be treated as mere counters in the game of litigation." We are bound to accept the statement of the Judges recorded in their judgment, as to what transpired in Court (emphasis given by me). We cannot allow the statement of the judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgment that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statements of fact as to what transpired at the hearing, recorded in the judgment of the Court, (emphasis given by me) are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement that had been made in error. That is the only way to have the record corrected.

The Hon''ble Supreme Court has clearly said that no enquiry can be conducted regarding the fact as to what transpired in the Court. However, it does not say that if the Judge records any fact which did not transpire in the Court and had taken place sometime before, it is also conclusive and cannot be challenged in any other Court. However, the observation was made in the order dated 4.5.1999 as to what transpired between the parties on 27.3.1999 outside the Court. 27.3.1999 was also not the date fixed in the case and what is mentioned in the ordersheet had not transpired in the matter at the hearing in the Court. Therefore, by no stretch of imagination the observation can be said to be conclusive, nor it can be accepted that it cannot be challenged in this Court u/s 482, Cr. P.C. The Judges certainly have power to record as to what transpired outside the Court and that is conclusive. However, if the Judge records a fact which transpired outside the Court on some other day, it cannot be conclusive and can always be contradicted by the parties. If it is also taken as conclusive, the consequences will be grave. This can be explained by a simple example. If a Judge records in the ordersheet that a person met him in the market and offered him bribe on some previous day, could this statement of the ordersheet can be conclusive? And it could be held that the person mentioned in the ordersheet has committed the offence of giving bribe? The answer will certainly be ''no'' and the person will be entitled to contradict this observation of the Judge recorded in the ordersheet. Therefore, argument that the order is conclusive cannot be accepted.

There is no supporting evidence that Rs. 4 lacs were paid. There is also no reason for recording all those facts in the ordersheet dated 4.5.1999. Apart from this, the officer is also guilty of gross misconduct for three reasons ; firstly, that if he was an arbitrator in the compromise between the parties outside the Court and had personal knowledge regarding the facts, he should have not taken up the case and should have transferred it to some other competent court, secondly, the Presiding Officer is also guilty of misconduct in making an attempt to get a matter compounded out of the Court which law has made not compoundable and lastly for acting on the recommendation of another judicial officer in a judicial matter before him and not reporting the matter for action against that officer.

In view of the above discussions, the petition is allowed and the entire order dated 4.5.1999, State v. Yogesh and others is quashed except in respect of fixing the date. However, it may be clarified that neither I have judged nor expressed any opinion as to whether Rs. 4 lacs were paid or not. If this question is agitated before any Court, it shall be decided on the basis of evidence adduced not being influenced by any observation made by me in this judgment. However, any observation in this regard made in the ordersheet dated 4.5.1999 above which have been quashed shall not be deemed to be the evidence regarding the payment of Rs. 4 lacs.