Jawed Aslam vs State Of U.P. Thru. Prin. Secy. ...
2023 Latest Caselaw 10570 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH
 
 

Court No. - 14
 
Case :- APPLICATION U/S 482 No. - 3380 of 2023
 
Applicant :- Jawed Aslam
 
Opposite Party :- State Of U.P. Thru. Prin. Secy. Home U.P. Lok Bhawan Lko. And 4 Others
 
Counsel for Applicant :- Gauri Shankar Maurya
 
Counsel for Opposite Party :- G.A.
 

 
Hon'ble Shamim Ahmed,J.

Heard Shri Hritudwaj Pratap Sahi along with Shri Sankalp Narain and Shri Gauri Shanker Maurya, the learned counsel for the applicant and Shri Akhilesh Kumar Vyas, the learned A.G.A. for the State-opposite party No. 1.

This application under Section 482 Cr.P.C. has been filed by the applicant-Jawed Aslam, with a prayer to quash the report dated 30.11.2022, impugned herein, submitted by the Special Investigation Team, so far as it relates to the recommendation for the prosecution against the applicant as well as further prosecution pursuant to the impugned report including the F.I.R. No. 0014 of 2023 dated 10.03.2023, under Sections 409, 420, 467, 468, 201, 204, 166, 120-B I.P.C., Police Station S.I.T., District Lucknow. Further prayer has been made to quash all the consequential proceedings initiated against the applicant pursuant to impugned report dated 30.11.2022.

Learned counsel for the applicant submits that applicant is innocent and has falsely been implicated in the present case. The applicant was never involved in any enquiry by which concerned Madarsas which were shown at Serial Nos. 8 and 9 (Annexure-8, page 152) were given recognition for running Alia Course, whereas, they were not given any grant-in-aid.

Learned counsel for the applicant further submits that at the time of giving recognition of aforesaid Madarsa which has been shown at Serial No. 8, the applicant was not posted on the post of Registrar and after recommendation the applicant has been posted as Registrar, thus, he has no concern with the recommendation of aforesaid Madarsas.

Learned counsel for the applicant further submits that regarding giving recognition to the Madarsa shown at Serial No. 9, the applicant was only one of the members of the Committee, but he has no role of conducting the enquiry and none of the members including the applicant have any role in recommending the Madarsa, as the applicant has acted in good faith.

Learned counsel for the applicant further submits that none of the aforesaid Madarsas were granted grant-in-aid, nor they have received any financial aid. The entire allegation made against the applicant in the report prepared by the S.I.T. is false and fabricated and the same has been submitted with malafide intention and arbitrary action without considering the evidence available on record and also in violation of Section 27 of Uttar Pradesh Board of Madarsa Education Act, 2004 (hereinafter referred to as, 'Madarsa Act'), which is being reproduced as under:

Protection of Acts done in good faith:

27. No suit, prosecution or other legal proceedings shall lie against the State Government, the Board or any its Committees and sub-Committee or any other person in respect of anything which is in good faith done or intended to be done in pursuance of this Act or any rule, regulation, bye-law, order or direction made thereunder.

While relying upon the legal position as provided under Section 27 of the Madarsa Act the learned counsel for the applicant placed reliance on paras-2 to 8 of a judgment of Hon'ble Supreme Court in the case of Krishna Prasad Verma (D) Thr. LRS. Vs. State of Bihar and others (Civil Appeal No. 8950 of 2011, decided on 28.09.2019). The said paras-2 to 8 are being reproduced as under:

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 Signature Not Verified Digitally signed by is the word of the Magistrate or at best the Session Judge. Therefore, it is equally important, if not more important, 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 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 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.

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.

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 another, (1998)3 SCC 370, wherein this Court held as follows:

"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 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 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 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 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."

6. Thereafter, following the dicta laid down in Union of India & Ors. Vs. A.N. Saxena, (1993) 2 SCC 56 and Union of India & Ors. Vs. K.K. Dhawan, (1993) 2 SCC 56, this Court in P.C. Joshi Vs. State of U.P. & Ors., (2001) 6 SCC 491 held as follows:

"7. In the present case, though elaborate enquiry has been conducted by the enquiry officer, there is hardly any material 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 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 actuated by any corrupt motive. At best he may say that the view 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 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 disciplinary proceedings against the judicial officer. In spite of such caution, it is unfortunate that the High Court has chosen to initiate 2 (1992) 3 SCC 124 3(1993) 2 SCC 56 4(2001) 6 SCC 491 disciplinary proceedings against the appellant in this case."

7. In Ramesh Chander Singh Vs. High Court of Allahabad & Anr., (2007 4 SCC 247, a three-judge Bench of this Court, after considering the entire 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 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 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 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 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 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 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 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.

Learned counsel for the applicant further placed reliance on another judgment of Hon'ble Supreme Court in the case of Bhappa Singh Vs. Rampal Singh and others : AIR SC 779 and placed reliance on para-3 of the said judgment, which is being reproduced as under:

3. In quashing the complaint the learned single Judge gave the respondents the benefit of Section 108 of the Gold (Control) Act, 1968, which runs thus:

"No suit, prosecution or other legal proceedings shall lie against the Central Government, Administrator, any Gold Control Officer or any person authorised by the Central Government or the Administrator for performing any functions under this Act, for anything which is in good faith done or intended to be done under this Act or any rule or order made thereunder."

and in doing so remarked:

"When a raiding party consisting of officers of the Central Excise and Customs Department enters any shop or building for performing duties under the Act and uses force for removing obstructions against the performance of their duties, the protection of Section 108 of the Act would be available to them."

Learned counsel for the applicant further placed reliance on another judgment of Hon'ble Supreme Court in the case of Costao Fernandes Vs. State at the instance of D.S.P., C.B.I. Bombay : AIR 1996 SC 1383 and placed reliance on paras-3, 4, 9 & 18 of the said judgment, which are being reproduced as under:

3. In my view, such contention should not be accepted. The very purpose of Section 106 of the Customs Act in stopping the conveyance and searching the same when it was reasonably believed by a Customs Officer that such conveyance was or going to be involved in carrying out smuggling activities, will be frustrated if the Customs Officer, in the bona fide exercise of his powers and consequential duties as enjoined under Section 106 of the Customs set is not permitted to take all consequential actions necessary for stopping the conveyance and conducting the search of such conveyance. If in course of a consequential action, it becomes necessary to immobilize the driver or occupant of a vehicle when without recourse of such action it was not possible to stop the vehicle, I fail to see any reason why the Customs Officer will not possess power and authority under Section 106 of the Customs Act to take recourse to such action for giving full effect to Section 106 of the Act. It will not be correct to contend that the Customs Officer's power under Section 106 of the Act is confined only to immobilization of the conveyance and not of the driver or occupant of the conveyance even when without which immobilization, stopping of the conveyance cannot be effected. Sub Section (2) of Section 106 of the Customs Act authorises a competent Officer to fire upon animal, vehicle or aircraft for forcibly stopping the same. It will be only hypertechnical to contend that although in an attempt to mobalise an aircraft or a vehicle, the same may be fired upon and by such process serious damage to the aircraft or the vehicle may be caused which may lead to loss of life of the pilot or driver together with occupants of the concerned conveyance, an action in injuring the driver or the occupant of the vehicle in an attempt to immobilize the vehicle is beyond the scope and ambit of Section 106.

4. It is, however, necessary to indicate a note of caution in the matter of consideration of protection against criminal liability if sought for under Section 155 of the Customs Act at the threshold of the Criminal trial. Since such immunity is claimed at the threshold, the Court should carefully scrutinize the relevant facts and materials placed before it for the purpose of finding (a) that the concerned Officer was authorised to act for prevention of smuggling activity and in fact had bona fide acted in exercise of his duties and functions in preventing the smuggling activities being carried or about to be carried (b) there are prima facie materials to indicate that such officer had honestly attempted to stop the conveyance for effecting search of the same (c) that such an attempt to stop the vehicle was sought to be frustrated either by not stopping the vehicle or by attempting to forcibly taking away the vehicle despite attempt by the concerned officer to stop the vehicle and (d) that recourse to use of force on the driver or occupant of the vehicle was apparently necessary to immobilize the vehicle or to save himself from imminent danger of personal risk. If on consideration of the materials placed before the Court, a possible view can be objectively taken that in discharge of the duties and functions under Section 106 of the Customs act that a competent Officer had bona fide used force and such use of force is not just a ruse for high handed action on his part which was not at all necessary in the facts of the case but prima facie there is justification for the course of action pleaded by the officer, the Court would give effect to the protection under Section 155 of the Customs act by dropping the criminal case initiated against the concerned Officer. The facts already on record, some of which have been indicated in the judgment of my learned brother, indicate that the appellant was on official duty as preventive Officer to look out for smuggling activities at the relevant time and in discharge of his official duties he had chased a speeding contessa car driven by the deceased in an attempt to stop the car for searching the same. As a matter of fact, he overlook the car and having disclosed his identity asked the deceased to stop the car but when the driver had attempted to flee with the car, he jumped into the same and tried to take out the ignition key in order to stop the vehicle. It has also been revealed that appellant had received various injuries including incised wounds which on the basis of medical report are likely to have been caused at the time when attempt to stop car was made. such facts prima facie support the appellant's claim for the protection under Section 155 to the Customs Act. In the facts of the case, it will not be proper to disallow such protection under Section 155 of the Customs Act to the appellant but to subject him to a full fledged trial on a charged of murder by pointing out that it would be open to the appellant to plead for right to private defence in such trial, like any other accused.

9. What finds the appellant before this Court is denial of the prosecution made available by section 155 of the Customs Act, 1962(the Act). That section has provided:

155. Protection of action under the Act.-(1) No suit, prosecution or other legal proceeding shall lie against the Central Government or any officer of the Government or a local authority for anything which is done or intended to be done in good faith, in pursuance of this Act or the rules or regulations.

(2) No proceeding other than a suit shall be commenced against the Central or Government or any officer of the Government or a local authority for anything purporting to be done in pursuance of this Act without giving the Central Government or such officer a month's previous notice in writing of the intended proceeding and of the cause thereof, or after the expiration of three months from the accrual of such cause."

18. The prosecution against the appellant is, therefore, quashed. The appeal stands allowed accordingly.

Learned counsel for the applicant further submits that the judgments cited above laid down the law that initiation of prosecution much less any proceeding against the applicant following the protection granted under Section 27 of the Madarsa Act, is illegal unjust and arbitrary and, therefore, the adverse S.I.T. report dated 30.11.2022 submitted against the applicant and all consequential actions pursuant to the said report dated 30.11.2022 are liable to be quashed.

Learned counsel for the applicant further placed reliance and submits that against the order dated 19.12.2022 passed by the State Government taking action against the management of Madarsas pursuant to the recommendations made by the S.I.T. in its report dated 30.11.2022, the Managers of certain Madarsas have challenged the said order dated 19.12.2022 in the writ petition bearing Writ-C No. 5992 of 2023 (C/M Madarasa Isamiya and 12 others Vs. State of U.P. and 5 others) before the Allahabad High Court wherein vide order dated 28.03.2023 a coordinate Bench of this Court sitting at Allahabad High Court has stayed the effect and operation of the order dated 19.12.2022 till the next date of listing, which order is annexed as Annexure-11 to the affidavit filed in support of the present application.

Learned counsel for the applicant further submits that even otherwise, S.I.T. had admittedly certified bonafide action of the applicant by only holding the applicant responsible for putting signature on the certificates of recognition, which action has been duly given protection under the Madarsa Act itself.

Learned counsel for the applicant further submits that applicant was not given any opportunity of hearing before the S.I.T. report is filed and further the case of applicant is not on the worse footing than that of all the cases cited above and the entire exercise in pursuance of the above S.I.T. report is nothing but an abuse of process of law which prejudices the rights of the applicant. Thus an interim relief has been prayed for.

After having heard the learned counsel for the parties and perusal of material available on record and considering the above referred judgments of Hon'ble Supreme Court, this Court finds that since the applicant has been protected by the Madarsa Act for the duty done in good faith as a Government Officer, and without considering the said provision of Section 27 of the Madarsa Act, in which it is provided that no prosecution or any proceeding shall lie against the Government Servant, even though the applicant was also not given any opportunity of hearing before the report dated 30.11.2022 was submitted by S.I.T. and further considering this aspect that vide order dated 28.03.2023, a coordinate Bench of this Court has stayed the effect and operation of the order dated 19.12.2022, which was passed in pursuance to the report of S.I.T. dated 30.11.2022, the applicant has made out a case for interim relief.

The matter requires consideration on facts and law, both.

Shri Akhilesh Kumar Vyas, the learned A.G.A. has accepted notice on behalf of State-opposite party Nos. 1 to 4.

Issue notice to the opposite party No. 5 by R.P.A.D., returnable at an early date.

Steps be taken within ten days from today.

Learned A.G.A. as well as the opposite party No. 5 may file counter affidavit within four weeks. Two weeks, thereafter, is allowed to the learned counsel for the applicant to file rejoinder affidavit.

List this case on 17.08.2023 before appropriate Court.

Till the next date of listing, effect and operation of the impugned report dated 30.11.2022 submitted by the Special Investigation Team as well as further consequential proceedings in pursuance thereof, so far as it relates to present applicant, shall remain stayed.

Order Date :- 11.4.2023

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