S.C. Marwaha vs State of H.P. and Another

T.R. Handa, J.—The petitioner who is a member of the Punjab Civil Service (Judicial Branch) has invoked the inherent jurisdiction of this Court u/s 482 of the Code of Criminal Procedure to seek the quashing of the orders dated 29-12-1984, 21-1-1985 and 14-2-1985 found at Annexures P-1, P-2 and P-4 respectively and recorded by the Sub-Divisional Judicial Magistrate, Dehra, in the course of the trial of criminal case titled State v. Sushil Chand under Sections 452/34 IPC pending in his court.

It appears that in May/June, 1983, Smt. Chander Kanta and Smt. Veena, mother and sister of the petitioner, and Ramesh Chand, their domestic servant visited Jawalamukhi where they stayed in a lodge. On their report a case u/s 452/34 IPC was registered with Police Station Jawalamukhi against Sushil Chand and Ors. . After investigation, the police sent the said Sushil Chand and Ors. to face their trial for the offences u/s 452/34 IPC in the Court of Sub-Divisional Judical Magistrate, Dehra.

Smt. Chander Kanta, Smt. Veena and Shri Ramesh Chand named above were cited as prosecution witnesses in that case. They were accordingly summoned to appear and give evidence at the trial. None of these Pws could, however, be served whereupon the Sub-Divisional Judicial Magistrate, Dehra, on 28-8-1984 recorded an order on the order sheet of the case. The relevant part of that order may be extracted:

PWs Chander Kanta, Veena and Ramesh Chand not served and record shows that inspite of various attempts the service of these PWs could not be effected. The report suggests that it is deliberate attempts on the part of the witnesses to avoid service. Hence all these witnesses be produced before the Court by issuing B/W Rs. 500/- for each for 15-11-1984.

None of these PWs was, however, served even for 15-11-1984 on which date the learned Magistrate adjourned the case to 29th Decembsr, 1984, after recording the following order:

The bailable warrant against PWs dander Kanta, Veena and Ramesh not received back. The concerned SHO be given notice to show cause as to why he should not be proceeded against for his negligence in not getting the warrant executed. Fresh warrant be issued for 29-12-1984 by special police officer.

The PWs were again not served for 29-12-1984 when the Magistrate proceeded to record the first impugned order which reads:

The warrants have been received back unexecuted with the report that these PWs have shifted from Dasuya to Phagwara. It appears that the police is colluding with these PWs for not getting the warrants served as the police official who was deputed to execute the warrants could have executed the same at Phagwara also. The record also shows that PWs are related to Shri S.C. Marwaha JMIC Phagwara and when the summons were sent to these PWs the said JMIC had given report that they had gone to Chandigarh with some relative there. Now the report on the warrants is contrary inasmuch as these PWs have been reported to be the servants of the above named JMIC. From this conduct on the part of Shri Marwaha which is revealed from the report it appears that he is deliberately keeping these PWs out of the reach of the process of the Court and thus prevents the service of the process of the Court and, therefore, he has made himself liable u/s 173 IPC. Notice to Shri S.C. Marwaha, JMIC, Phagwara be issued to show cause on or before 14-2-1985 as to why he should not be proceeded against u/s 173 IPC. At the same time fresh B/W be issued against these PWs on the present address as given in the report on this warrants returnable for the date fixed.

Notice as found at Annexure P-2 was then actually issued to the petitioner in pursuance of the above quoted order calling upon him to show cause on or before 14-2-1985 as to why he should not be proceeded against u/s 173 IPC. On receipt of such notice the petitioner like a responsible Judicial Officer explained his position in writing in the following language:

Received today. As there is no direction to appear in person, I take the opportunity to explain on this summons that I merely reported on the summons/ warrants brought by serving constable on his request/insistence to write on the summons, so that he may justify his visit. As far as I recollect and as is revealed from the summons that I merely reported that Veena and Chander Kanta have gone to Chandigarh and Ramesh PW has left my service. I never prevented the serving constable the service of summons/warrants on the witnesses. In fact, the witnesses were not available here. My report on the summons/warrants on his request/ insistence so as to justify his visit was innocent and factual. To my mind, I have not done any act so as to invoke the provisions of Section 173 IPC. In case my presence is necessary to explain the above position, I may be intimated by ordinary or registered post or by any means. In case the above facts satisfy you, you requested to drop further proceedings against me.

The-Sub Divisional Judicial. Magistrate, Dehra, however, refused to accept the above quoted explanation of a Judicial Officer of his own rank and preferred to precipitate the matter by recording yet Anr. order on 14-2-1985. This order of 14-2-1985 may also be recorded :

The bailable warrants against PWs Veena, Chander Kanta and Ramesh Chand have been received unexecuted and without any report. Show cause notice u/s 173 IPC has been served upon Shri S.C. Marwaha and in compliance to this notice he has not appeared in the Court, but instead he has submitted his explanation. The Zimni record would reveal that it is a peculiar case of evasion of the processes of the Court in collusion with judicial magistrate and the police. The detailed facts about this evasion have been given in the Zimni order dated 28-8-1984 and 29-12-1984. It is unfortunate to note that inspite of the notice given to Shri S.C. Marwaha Phagwara to show cause as to why he should not be proceeded against u/s 173 IPC for preventing the service upon PWs Veena, Chander Kanta and Ramesh Chand who are related to him, he appears to have taken the notice very lightly and has given evasive explanation intending to prevent the apper-ance of these PWs in the Court. He being the Judicial Magistrate should have taken the notice in its true spirit with all consequential result flowing from it, but it appears that he is out to defy the processes of the Court. Therefore, I find sufficient grounds to issue a process against him u/s 173 IPC. Since this accused appears to be reluctant to appear in the Court as he has been defying the directions of the Court with impunity, I find that it would be-futile if ordinary summons are issued to him. Therefore, he be produced in the Court by bailable warrant in the sum of Rs. 1000/- for 29-3-1985. As for the PWs Veena, Chander Kanta and Ramesh Chand whom Shri S.C. Marwaha have been giving shelter and preventing service of the processes of the court, they be also produced in the Court by bailable warrants in the sum of Rs. 1000/- each. At the same time the matter be reported to the Hon�ble High Court of Punjab through Registrar about the evasion of service of process by Shri S.C. Marwaha JMIC by misusing his position as judicial magistrate.

As to the non-service of the bailable warrants upon these PWs and non-submission of the report, notice be given to the SHO to show cause on or before the date fixed as to why he should not be proceeded against u/s 29 of the Police Act for his negligence in this behalf.

It is in these circumstances that the petitioner felt obliged in knocking at the door of this court.

I have carefully perused the language employed by the Magistrate in recording the impugned orders. I have also looked into and considered the facts and circumstances which resulted in the passing of these orders. The least that I can say is that these orders are totally unsustainable in law and only reflect a flagrant abuse of his judicial powers on the part of the Magistrate who at the same time had exhibited his complete lack of knowledge of the fundamental judicial ethics. True, that the Magistrate does not possess enough judicial experience but that by itself is hardly a justification or excuse for recording orders of the instant kind.

It needs no emphasis that the very assumption of a judicial office casts upon the incumbent onerous duties in respect of his conduct which, inter-alia concern his relations with the litigants as also the witnesses involved in the cases pending before him. The official conduct of a Judge must always be free from impropriety as also the appearance of impropriety. A Judge must always remember that he is not a depository of arbitrary powers but only a Judge under the sanction of law. He must, therefore, administer, justice with due regard to the system of law itself. He would certainly be violating his duties as Judical Officer if in disregard of general law binding on him, he devises a discipline of his own simply because he is of the view that it shall have a beneficial corrective influence. I may further add that a Judge should always be courteous and ensure that no person brought before him in whatever capacity is compelled to submit to any form of (humiliation.

Now in the instant case the very first order which was recorded by the Magistrate on 29-12-1984 smacks of his uncalled for bias and prejudice against the present petitioner who, as already stated, happens to be a member of the Punjab Civil Service (Judicial Branch). There was in my view abso lutely no justification or occasion for the Magistrate to have abruptly jumped to the conclusion that �from this conduct on the part of Shri Marwaha which is revealed from the report it appears that he is deliberately keeping these PWs out of the reach of the process of the Court and thus prevents the service of the process of the Court and, therefore, he has made him self liable u/s 173 IPC�. The only material before the Magistrate at the time of making this order was the report of the petitioner on the back of the warrants issued against the PWs. This report was only to the effect that two of the PWs, namely, Smt. Chander Kanta and Smt. Veena who were the mother and sister of the petitioner, were away to Chandigarh to see a relation and the . third PW who was their domestic servant had since left the job. This report was obviously an innocuous one and without anything further to suggest if it was false, the aforesaid observations made by the Magistrate in his order dated 29-12-1984 were certainly unjustified. The necessary inference is that they were made for some extraneous considerations.

The order dated 29-12-1984 found at Annxure P-1 as also the notice issued to the petitioner pursuant to this order and as found at Annexure P-2 both, therefore, deserve to be quashed.

I have already adverted to the explanation furnished by the petitioner in response to the show cause notice dated 14-2-1984 found at Annexure P-3. In view of this explanation of the petitioner, the situation certainly demanded that the Magistrate Dehra accepted the plea of the petitioner and discharged the notice issued earlier. He, however, for reasons of his own proceeded further to record his order dated 14-2-1985 as extracted above. All that can be said with respect to this order is that it is full of malice and devoid of judicial approach expected of an officer of the rank of the Sub-Divisional Judicial Magistrate. The observations made in this order �the zimnii record would reveal that it is a peculiar case of evasion of the processes of the Court in collusion with judicial magistrate and the police. The detailed facts about this evasion have been given in the zimni order dated 28-8-1984 and 29-12-1984� simply depict the pre-determination on the part of the Magistrate to humiliate and proceed against the petitioner whether justified or unjustified. There could be np question of collusion between the petitioner who belongs to the Punjab Civil Service and the police deputed to execute the process which belong to Dehra. Similarly, the zimni orders dated 28-8-1984 and 29-12-1984 on which the Magistrate placed reliance in support of his order dated 14-2-1985 would certainly supply no foundation for such order. The zimni order dated 28-8-1984 in fact contains no reference to the petitioner. With respect to the second order dated 29-12-1984 I have already observed that the inferences drawn in that order against the petitioners were totally uncalled for and reflected bias of the Magistrate against the petitioner.

For the reasons aforesaid I would allow this petition and direct that the order of the Magistrate Dehra dated 29-12-1984 found at Annexure P-1, the notice dated 21-1-1985 issued to the petitioner pursuant to the aforesaid order and as found at Annexure P-2 as also the order of the Magistrate dated 14-2-1985 found at Annexure P-4 be quashed and proceedings, if any, initiated against the petitioner in pursuance of the aforesaid notice dated 21-1-1985 be dropped.

A copy of this order be placed on the personal file of Shri J.L. Chauhan, Sub-Divisional Judicial Magistrate, Dehra.