Advocate Manish Kumar Khanna vs The Hon???Ble Delhi High Court & ...
2015 Latest Caselaw 1727 Del

            *IN THE HIGH COURT OF DELHI AT NEW DELHI

%                                     Date of decision: 27th February, 2015

+      W.P.(C) No.442/2014, CMs No.1394/2014 (for direction)& 1176/2015

       ADVOCATE MANISH KUMAR KHANNA                                   .... Petitioner
                  Through: Petitioner in person.

                                      Versus

    THE HON'BLE DELHI HIGH COURT & ORS. ..... Respondents
                  Through: Mr. Sanjay Jain, ASG with Mr. Akshay
                           Makhija, CGSC and Mr. Rahul Jain, Mr.
                           Jayant K. Mehta with Ms. Madhavi
                           Khare, Advs. for DHC.
                           Mr. Ashish Dixit, Adv. with Vice
                           President and Secretary of DPWA,
                           Interveners.
CORAM:-
HON'BLE MR. JUSTICE SANJIV KHANNA
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW
RAJIV SAHAI ENDLAW, J.

1. This petition under Article 226 of the Constitution of India, filed as a

Public Interest Litigation (PIL), seeks the reliefs of, (i) a direction to this Court

to "follow the mandatory direction of the Hon‟ble Supreme Court in the case of

Anil Rai regarding passing of the judgments / orders within two months of the

hearing" etc.; (ii) a direction to this Court to "follow the model case law system

as stated in the Salem Advocate Bar Association case"; (iii) a direction to this

Court to "speed up the hearings of the PIL, people in jail and bail matters";

(iv) a direction to this Court as well as the Trial Courts to "follow the good old

practice of the Hon‟ble Supreme Court in recording the actual time (not just

duration) for which a matter has been heard on a particular occasion in every

daily order and put every order on internet"; and, (v) a direction to "the State

and the Government to provide for adequate structure in the form of

Prosecutors, Standing Counsels, sufficient manpower in the Legal

Department".

2. The petition was listed for admission on 22nd January, 2014, 29th

January, 2014, 17th February, 2014 when no order, neither admitting the

petition nor issuing notice thereof was issued. On 18th February, 2014, the

counsel for the respondents no.2&3 i.e. Government of National Capital

Territory of Delhi (GNCTD) appearing on advance notice was asked to take

instructions with respect to Prayer (v) i.e. of a direction to the Government to

provide adequate infrastructure in the form of Prosecutors, Standing Counsels,

sufficient manpower in the Legal Department etc.

3. In response to the above, GNCTD has filed an affidavit inter alia

stating:-

(i) that according to the duties assigned to the Prosecutors in

Directorate of Prosecution, the Assistant Public Prosecutors defend the

State before the Metropolitan Magistrate Courts and the Additional

Public Prosecutors defend the State before the Sessions Court; that the

Chief Prosecutors are in charge of the Districts and supervise the

Assistant Public Prosecutors and Additional Public Prosecutors and

overall legal issues of their respective District; that the Director

(Prosecution) being Head of the Department is overall in charge of the

Prosecution Wing; and,

(ii) that this Court has been monitoring the shortage of Public

Prosecutors vide W.P.(Crl.) No.1549/2009 titled Court on its own

motion Vs. State, NCT of Delhi and has issued a number of directions to

fill up all the vacant posts of Prosecutors; in compliance therewith all

possible steps have been taken to meet the shortage of Public

Prosecutors so that the justice delivery system does not suffer; various

steps taken / being taken including for increasing the strength of the

Public Prosecutors, filling up the vacancies, training of the Public

Prosecutors, provision of library for the Public Prosecutors, providing

modes for safe keeping of files, making available seating space within

the Court rooms / office block with online search engines, internet

facility, stationery, facility of printing, photocopying for the Public

Prosecutors and facilitating transport etc. of the Public Prosecutors have

been elaborated.

4. Though as aforesaid, neither the petition was admitted nor notice thereof

was issued and the GNCTD was only asked to take instructions with respect to

prayer (v) only but when the matter came up on 21 st July, 2014, the counsel for

the respondent no.1 i.e. this Court was asked to obtain instructions qua the

prayer of the petitioner for recording of time of hearing in each order sheet.

After perusing the affidavit aforesaid of the GNCTD, they were directed to re-

examine the issue of pay scales of the Public Prosecutors.

5. In response to the above, the counsel for this Court on 15th October,

2014 stated that there cannot be any in-principle objection to recording in the

order sheet of the time taken by each counsel in every case listed before the

Court. It was however further stated that where the cases are not heard at all or

are, after hearing, adjourned, it would not be worthwhile to record the time.

Vide the order of the said date, it was observed that this Court‟s Establishment

should consider indicating suitable protocols and guidelines for recording and

reflecting the time taken by the counsel in each case, subject to some minimum

time - say five or ten minutes and it was opined that the same would help /

assist the Court in given cases to determine the oral hearing to be granted. Qua

the issue of emoluments of Public Prosecutors, notice was issued to the

Additional Solicitor General, Delhi High Court.

6. On 27th November, 2014, attention of this Court was invited to Rule 9 of

the Delhi High Court (Original Side) Rules, 1967 which provides for recording

of time taken by each counsel in every case listed before the Court and it was

stated that appropriate mechanism to universally apply the said rule in spirit in

all cases and not merely on the Original Side was under contemplation. Qua the

emoluments of Public Prosecutors, the learned ASG was asked to examine the

matter and to indicate the measures to be taken to ensure that the pay scales are

improved in order to secure more effective representation in the criminal

matters including in this Court.

7. At this junction, the petitioner filed CM No.1394/2014 to place on

record the replies received by him from this Court in response to queries made

under the Right to Information Act, 2005 qua pendency of cases.

8. Another application being CM No.1176/2015 has been filed by the Delhi

Prosecutors Welfare Association for intervention in the petition, along with a

draft petition seeking revision / upgradation of pay scales with effect from the

year 2009 and seeking a direction for payment of arrears which would so

become due. GNCTD also has filed a further Status Report delineating the

steps taken / being taken for providing better facilities to the Public Prosecutors

to enable them to pursue the cases efficiently and effectively.

9. We heard the petitioner appearing in person, the counsel for the

intervener, Delhi Prosecutors Welfare Association, learned ASG and Mr.

Sanjay Lau, Addl. Public Prosecutor on 28th January, 2015 and reserved orders.

10. Though, as the aforesaid narrative discloses, the petition was never

entertained and from time to time the counsel for the GNCTD and the counsel

for this Court were merely directed to obtain instructions on only two aspects

i.e. qua prayers (iv) & (v) and the petition qua the other reliefs is thus deemed

to have been dismissed but since there is no formal order dismissing the

petition qua the remaining reliefs and giving reasons therefor, we deem it

appropriate to deal with all the reliefs.

11. Qua the first relief claimed by the petitioner, the petitioner in the petition

has set out certain passages of the judgment of the Supreme Court in Anil Rai

Vs. State of Bihar (2001) 7 SCC 318 laying down that judgments should be

pronounced within two months of completion of final arguments and the

procedure to be adopted by the concerned litigant in the event of delay. It is the

case of the petitioner that the said directions of the Supreme Court are not

being followed.

12. The petitioner however at the time of hearing did not make any

arguments on this aspect.

13. The law declared by the Supreme Court is binding on all Courts within

the territory of India (refer Article 141 of the Constitution of India). It is not for

this Court to restate the said law. No direction as sought by the petitioner for

the said law to be followed is required to be issued. It cannot be lost sight of

that pronouncement of judgments is a judicial function and no Bench of the

High Court in exercise of powers under Article 226 of the Constitution of India

can issue a direction to the other Benches of the High Court, particularly with

regard to the judicial functions. If according to the petitioner or according to

any other litigant the direction or the law laid down by the Supreme Court in

Anil Rai (supra) is not being followed by any particular Bench, it is for the

petitioner or for such litigant to take appropriate step in this regard.

14. The position with respect to the second relief claimed by the petitioner is

also the same. The proceedings before the Court are governed by the rules and

procedure applicable thereto. The Supreme Court in Salem Advocate Bar

Association, Tamil Nadu Vs. Union of India (2003) 1 SCC 49 though rejected

the challenge to the amendments made to the Code of Civil Procedure, 1908 in

the year 2002 but felt the need for formulating modalities for the manner in

which Section 89 and other provisions which had been introduced by way of

amendment have to be operated and constituted a Committee to ensure that the

amendments become effective and result in quicker dispensation of justice. The

said Committee was also given the liberty to consider devising a model case

management formula as well as Rules which should be followed while taking

recourse to Alternate Dispute Resolution referred to in Section 89. It was also

observed that the model rules, with or without modification so formulated may

be adopted by the High Court concerned for giving effect to Section 89(2)(d).

The said Committee submitted a report and which report was dealt with in

Salem Advocate Bar Association, Tamil Nadu Vs. Union of India (2005) 6

SCC 344. The Supreme Court, in the said judgment after noticing the report of

the Committee including qua the Model Case Flow Management Rules and

Draft Rules observed that the High Courts can examine the said rules, discuss

the matter and consider the question of adopting or making the Model Case

Flow Management Rules with or without modification as part of the Rules of

the High Court framed in exercise of powers conferred by the CPC and Article

225 of the Constitution of India. Though undoubtedly this High Court in its

Rules has not adopted any such Case Flow Management Rules by the said

nomenclature but otherwise, we may notice that the Rules of this Court indeed

provide for the case flow and we further find that most of the Model Rules to

be found in the judgment of the Supreme Court, at least as far as this Court is

concerned, are already in place. Nothing was highlighted and shown to us

during arguments on the said aspect. Be that as it may, having taken note of

the said fact, we direct the Registrar General of this Court to place a copy of

the judgment in Salem Advocate Bar Association (supra) along with a copy of

this judgment before the Rules Committee of this Court for considering,

whether there is any need to adopt any of the other Model Rules, if not already

in place.

15. The third relief claimed for speeding up of the hearing of the PIL, of

people in jail and bail matters also relates to the exercise of judicial function by

the Judges of this Court and qua which no general direction under Article 226

can be rendered. We may however observe that this Court has been doing its

best with the available resources to deal as expeditiously as possible with the

cases and particularly those which are found deserving of a more expeditious

hearing / disposal.

16. We may notice that the petitioner during the hearing also, rather than

concentrating on the suggestions if any for so expediting the disposal of cases,

argued that while certain cases are given priority, others languish.

17. On this aspect also, no judicial adjudication is possible. It is up to the

individual Benches of this Court to take up matters which require an

expeditious hearing / disposal. No direction under Article 226 of the

Constitution of India can be issued by us directing the Judges of this Court to

take up any particular category of matters before the others. We are otherwise

aware that whenever a need therefor is shown, such a matter is given priority.

18. The Supreme Court in Jharia Vs. State of Rajasthan (1983) 4 SCC 7

when approached with a writ petition under Article 32 of the Constitution of

India for declaration that the conviction under Section 302 of the Indian Penal

Code by the High Court and SLP whereagainst had been dismissed was illegal

and for restraining the State from giving effect to the sentence, held that the

finality of the judgment of the Supreme Court by dismissal of an SLP cannot

be upset in a proceeding under Article 32 and observed "obviously, the

Supreme Court cannot issue a writ, direction or order to itself in respect of any

judicial proceedings and the learned Judges constituting the Bench are not

amenable to writ jurisdiction of the Supreme Court". The Supreme Court

recently in Subrata Roy Sahara Vs. Union of India (2014) 8 SCC 470

reiterated the said view.

19. Though the Full Bench of the High Court of Patna in In Re: Babul

Chandra Mitra AIR 1952 Patna 309 in the context of a writ petition calling

upon the High Court to enroll the petitioner as an Advocate held that a writ

cannot be issued by the High Court to itself for the process involves rather the

absurd position that it calls upon the Judges to show cause to themselves why

they should not be directed to quash something they themselves had

determined and that a Judge is without jurisdiction to issue a writ or order to

another Judge of coordinate jurisdiction and power to compel performance of

duties, but we tend to agree with the Full Bench of the Kerala High Court in K.

Prabhakaran Nair Vs. State of Kerala AIR 1970 Kerala 27 that the High

Court acting in its judicial capacity cannot be said to be an authority subject to

the jurisdiction of the High Court itself under Article 226 for the issue of a writ

of certiorari; it was clarified that an order passed by a Chief Justice on the

administrative side can in an appropriate case be the subject matter of a

proceeding under Article 226 in the same High Court. The view of the High

Court of Madras (in Devsahayam Vs. State of Madras AIR 1958 Madras 63

and In Re: Hayles AIR 1955 Madras 1 (FB), Allahabad (in Abul Vs. Chief

Justice AIR 1971 Allahabad 44), Calcutta (in Pramatha Vs. Chief Justice AIR

1961 Calcutta 545 and Jyoti Prakash Mitter Vs. Hon'ble Mr. Justice H.K.

Bose AIR 1963 Calcutta 483 and Madhya Pradesh (in Daulat Singh Vs. Union

of India MANU/MP/0342/1993) is also that administrative action of the High

Court can be subjected to judicial review of the same Court under Article 226.

We may add that the same is the view of this Court.

20. That brings us to the reliefs (iv) & (v) to which the hearing was

confined.

21. As far as the aspect to recording of the actual time for which a matter has

been heard in the order sheet is concerned, Clause 9 of the Original Side

Practice Direction No.3 of 1974 (not Rule as recorded in the order dated 27th

November, 2014) already exists in this regard. The grievance of the petitioner

is that the same is not being abided. Again, once the direction is found to exist,

there is no need for us to issue a new direction in this regard. Again it is for the

petitioner or the concerned litigants to seek compliance therewith. We may

however notice that the Judges of this Court as of the other Courts are already

hard pressed for time and the issue of curtailing / limiting the time of hearing in

the open Court is already being publically debated. We had during the hearing

asked the petitioner whether not such recording of the time would lead to

arguments being addressed on the aspect of correctness of the time for which

the matter was heard, with counsels contending that they could not avail of the

optimum / available time owing to Court queries or interjections by the other

counsels or on some other account. The petitioner could not controvert such a

possibility. It thus appears that recording of such time may not always and in

all situations be productive and may rather have undesirable consequences. The

same may also become a ground, with counsels contending that they were

given too short and their opposing counsels or others were given too long a

hearing by the Court. In fact, this was precisely sought to be argued. We

cannot also lose sight of the fact that the proceedings in a Court which are

mostly concerning human behaviour and attitudes cannot be confined to a

straightjacket formula and the same if done may become an impediment to the

justice delivery system. Some matters are simple and others complex involving

intricate issues. Certain amount of play in the joints / leeway / discretion has to

be given to the Judges to control and regulate the proceedings before them as

per the need of the case and hour. No general rule of how much time is to be

given or is optimum can be laid down. It has to be necessarily left to discretion

of the presiding Judge. We are therefore of the opinion that relief (iv) cannot be

granted.

22. A Division Bench of this Court in Deepak Khosla Vs. Union of India

AIR 2011 Delhi 199 was concerned with a petition under Article 226 seeking a

direction to this Court not to interfere with the non-intrusive audio recording by

the petitioner or his Advocate of the judicial proceedings involving the

petitioner. It was noticed in the judgment that there is no specific legislation,

provision or law regulating the field referring to which it can be said that there

is a mandate that audio / video recording is to be done. It was held that for a

mandate to be issued to allow such recording or not to interfere with such

recording, first a public duty or operation of law has to be shown and since

there was no such duty or law, no such mandamus could be issued. It was

further held that the petitioner‟s personal belief that audio / video recording

will lead to transparency and will curtail the Court‟s time could not earn the

status of law. It was further reasoned that framing of a rule is a matter of

policy and there can be no mandamus for audio / video recording of the Court

proceedings.

23. In our view, the said judgment of the Division Bench of this Court and

with which we respectfully concur squarely applies to the reliefs claimed in the

present petition also. We may also observe that each Judge of this Court acts

as High Court and any direction by one Bench to others with respect to

exercise of judicial functions by others would be capable of being nullified by

a counter writ issued by others or any of the others. The totality of the

jurisdiction conferred on a High Court by the Constitution and the law is

exercised by individual Judges sitting singly or in Benches. In this context

each Judge is the High Court. The decisions of the High Court are binding on

all Courts subordinate to it and no writ with respect to performance of judicial

functions, in the realm of legislation should be issued. Issuance of a writ with

respect to judicial functions from one Judge to another Judge of the same High

Court will destroy the traditional high degree of comity among Judges of

superior Courts which is essential for the smooth and harmonious working of

superior Courts. The respect and amity which the Judges should extend to each

other will certainly be diminished if they were to issue writs to one another.

Issuing mandamus and direction in exercise of writ jurisdiction would be

judicial overreach and impropriety. These are matters requiring detailed and

widespread exchange of views and debate and personal perspectives would

differ.

24. As far as prayer (v) is concerned, the Addl. Public Prosecutor attached to

this Court on enquiry expressed satisfaction as to the infrastructure and

facilities available and stated that any difficulty continues shall be taken up

with Hon‟ble Chief Justice or with the appropriate Administrative Committee.

As far as the aspects concerning Public Prosecutors in the Trial Courts are

concerned, this Court in W.P.(Crl.) No.1549/2009 supra is already concerned

with the same and need for entertaining the present petition also on the same

aspect is not felt.

25. The counsel for the intervener at this stage sought to raise his own pleas.

We are however not inclined to entertain the same. Needless to state that the

intervener if feels the need can always intervene in W.P.(Crl.) No.1549/2009

supra or can file its own independent petition.

26. Accordingly save for the aforesaid direction in para 14 hereinabove, we

do not find any merit in this petition and dismiss the same. The intervention

application is also dismissed with liberty however to the intervener to raise the

grievance as raised in the intervention application in an appropriate proceeding

i.e. either by seeking impleadment / intervention in W.P.(Crl.) No.1549/2009

or by way of independent proceedings.

No costs.

RAJIV SAHAI ENDLAW, J.

SANJIV KHANNA, J.

th FEBRUARY 27 , 2015 „pp‟