Rajasthan High Court - Jodhpur

Ramesh Kumar Mehta vs State Of Rajasthan ... on 5 October, 2023

Bench: Pushpendra Singh Bhati

[2023:RJ-JD:36832]

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Criminal Misc. Appli No. 47/2023 in S.B. Criminal Misc. Petition No.7164/2022

Ramesh Kumar Mehta, R/o Gram Lahengun Karma Tola Shivigaha Ps Tandwa Dist. Aurangabad Bihar, Presently R/o Sector No. 3, Khatu Colony, Dist. Banswara, Raj.

----Petitioner Versus

1. State Of Rajasthan, Through Pp

2. Luvkush Kushwaha S/o Sh. Bhurahu Singh Kushwaha, Aged About 59 Years, Gram Kudhani, Post Karmhari, P.s. Kudhani, Kaimoor, Bihar, Presently R/o Sector No. 3 Khandu Colony, Banswara, Raj.

                                                                  ----Respondents


For Petitioner(s)           :    Mr. Milap Chopra
For Respondent(s)           :    Mr. Sumer Singh Rajpurohit, PP

HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI

Order

05/10/2023

1. The instant application has been preferred claiming the

following reliefs:-

"It is, therefore, most respectfully prayed that the present Criminal Misc. Application may kindly be allowed and appropriate action may kindly be initiated against the learned Judge below for committing deliberate and willful disobedience of the order dated 07.11.2022 passed in S.B. Criminal Misc. Petition bearing No.7164/2022 (Ramesh Kumar Mehta Vs. State of Rajasthan & Anr.) by this Hon'ble Court. Further, the petitioner may kindly be granted compensation in lieu of the loss to his reputation, image and business wherein the petitioner was sent to jail creating a forever social stigma resulting in huge losses in the work of the petitioner.

Any other appropriate order which may be considered in favour of the petitioner may kindly be ordered to be issued."

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2. The above-numbered S.B. Criminal Misc. Petition

No.7164/2022, wherein the present application has been filed,

was disposed of by this Court vide order dated 07.11.2022.

3. The grievance of the applicant in the present application is

that in pursuance of the aforesaid order dated 07.11.2022, the

applicant appeared before the learned Chief Judicial Magistrate,

Banswara with an expectation that the non-bailable warrant shall

be converted into bailable warrant, and thus, while the

proceedings were continued, the applicant shall be released on

bail. However, despite the aforementioned order dated

07.11.2022, the applicant was made to suffer judicial custody by

the learned Trial Court.

4. This Court took serious note of the case, because of the

involvement of custody, despite non-bailable warrant having been

directed by this Court to be converted into bailable warrant.

However, the learned Trial Judge was directed by this Court vide

order dated 04.07.2023 to give an explanation as to under what

circumstances, the applicant was sent to judicial custody. Such

explanation has been furnished and is on record.

5. This Court finds that though the learned Trial Court has

committed an error in sending the applicant behind the bars,

despite the aforementioned order dated 07.11.2022 of this Court,

but it is observed that the learned Trial Court has relied upon the

order passed by a Coordinate Bench of this Hon'ble Court at Jaipur

Bench in the case of Om Prakash Mund & Anr. Vs. State of

Rajasthan (S.B. Criminal Misc. Bail Application

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No.7469/2013, decided on 24.09.2013), relevant portion of

which, as relied upon by the learned Trial Court, reads as under:-

". . . . .Thus, the provisions contained in ChapterVI of the Code provides only for the method/mode in which presence of an accused can be procured before a court to face trial or otherwise. This Chapter does not provide the circumstances in which bail is to be granted or refused to an accused for the offence for which accusation has been levelled against him. I am of the considered view that issue of a process to compel or procure the appearance of an accused before the court and grant of bail to him in a non bailable case are separate and distinct subject matters and do not depend on each other and it would depend on the relevant provisions of bail bonds as provided in Chapter-XXXIII of Cr.P.C. and the well settled legal position prevalent in this regard. . . . . . Similarly, grant or refusal of bail to a person in a non- bailable case is not controlled by the Form No.2 of Second Schedule or the language used in Section 71 of the Code but it is governed by the provisions of bail contained in Chapter-XXXIII. Although, Section 71 (1) provides for attendance of the person before the Court at a specified time and thereafter and Form No.2 (under Section 71) also provides for attendance before the Court on a specified date and his continuous attendance before it but that does not mean that court has already granted him bail and he is not required to apply for the same. These provisions do not and cannot override the specific provisions of bail contained in Chapter- XXXIII of the Code."

6. Though in the opinion of this Court, in pursuance of the

aforementioned order dated 07.11.2022 passed by this Court, the

applicant should have been released on furnishing a bailable

warrant, but since the learned Trial Court has relied upon the

order of a Coordinate Bench of this Hon'ble Court in the case of

Om Prakash Mund & Anr. (supra), therefore, the matter

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relates to his judicial discretion and such discretion, even if wrong,

cannot be a ground to deprecate the learned Trial Court.

7. This Court is conscious of the judgment rendered by the

Hon'ble Supreme Court in the case of Krishna Prasad Verma

(Dead) Through Legal Representatives Vs. State of Bihar &

Ors., (2019) 10 SCC 640; relevant portion whereof reads as

under:

"7. In Ramesh Chander Singh Vs. High Court of Allahabad & Anr., 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

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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."

16. . . . . .We again reiterate that unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind etc., disciplinary proceedings should not be initiated merely on the basis that a wrong order has been passed by the judicial officer or merely on the ground that the judicial order is incorrect."