JUDGMENT Binod Kumar Roy and M.P. Singh, JJ.
1. Whether the respondent who is a member of Higher Judicial Service of our State, for non-declaration of results of Intermediate Examination, 1997 of his own son could have initiated suo motu judicial proceedings in his own Court, proceeded to pass orders for production of Answer Books of his son and held guilty the Educational Authorities of the State after holding an Enquiry of committal of alleged offences under Indian Penal Code, Section 340 Cr PC and even guilty of committal of Contempt of Court Act and decided to make reference thereunder ? And whether this Court will be justified in interfering with his acts and orders/directions under Article 226 of the Constitution of India? are the core questions which have cropped up for adjudication in this writ proceedings.
The Prayers :
2. The petitioners - the State of Uttar Pradesh and the Director of Education (Secondary)-cum-Chairman, U.P. Board of High School and Intermediate Education, U.P., Allahabad-have come up with following prayers :-
(i) to quash directions issued by the respondent Sri R.S. Gupta, H.J.S., Special Judge (Dacoity Affected Areas), Jalaun at Orai to petitioner No. 2 as contained in his letter dated 6.6.1997 (copy appended as Annexure-
(ii) to let him know about the result (Division, Marks obtained) of the Intermediate Examination, 1997 of is son named Alok Kumar Gupta bearing Roll No. 1094995 and clarify the relevant facts concerning the expression of the word 'C as published in the newspaper 'Amar Ujala'
(ii) to quash his another direction as contained in letter No. 469/97, dated 29.7.1997 (copy appended as Annexure-2) to immediately produce answer books of his aforementioned son on 18.8.1997 which are required in Case No. 50 of 1997 (State v. Laxmi Prasad Pandey and Ors.) pending in his Court;
(iii) to command the respondent not to proceed any further in case No. 50 of 1997 aforementioned;
(iv) to transfer that case from his Court to any other Court of competent jurisdiction,
(v) to issue any other writ, order or direction, which may be deemed fit and proper; and
(vi) to award cost of this litigation.
The Facts pleaded :
3. The case of the petitioners is as follows :-
(i) Alok Kumar Gupta, the son of respondent had appeared as a private candidate in the Intermediate Examination of 1997 for which he had applied from Acharya Narendra Deo Inter College, Orai, Jalaun;
(ii) The Transfer Certificate accompanying his application mentioned him as having failed in the 1996, Intermediate Examination. His Roll Number was neither disclosed nor was furnished.
(iii) Vide letter No. 461, dated 28.2.1997, the petitioner No. 2 asked him to furnish details in that regard;
(iv) As he did not furnish the same his result was shown as 'C in the Newspaper which meant group of those examinees whose results had been cancelled due to various reasons;
(v) Thereafter Respondent No. 1 sent the letter as contained in Annexure-1;
(vi) The department enquired the matter. It was revealed that Alok Kumar Gupta had appeared from Gonda District, which fell within the territorial jurisdiction of the Divisional Office at Varanasi and from his result sheet it was apparent that he had failed being unsuccessful in four subjects- Hindi, English, Civics and History out of five subjects, the 5th being Art Design in which he could pass. Vide letter No. 627, dated 4.7.1997 he was intimated to obtain his marks sheet which he received.
(vii) Thereafter the petitioners came to know for the first time on receipt of the letter dated 29.7.1997 as contained in Annexure-2 sent by the respondent that he has instituted a criminal case bearing Case No. 50 of 1997 (State v. Laxmi Prasad Pandey and Ors.) in his own Court;
(viii) A special messenger was sent to receive copy of the case but it was not handed over on the ground that the records-are in the personal custody of the respondent.
(ix) The impugned directions are wholly without jurisdiction, illegal, arbitrary, malafide, unjust and contrary to law; as nobody can Act as a Judge in which his own interest is involved, the matter could not be entertained by the respondent.
(x) Since the petitioners have no other alternative and efficacious remedy they are approaching this Court.
4. This writ petition was placed before a Division Bench on 19th September, 1997 following order was passed by the Bench on that day :-
"Petitioners are permitted to serve the respondent personally in addition to normal mode of service steps for which shall be taken within three days. Office shall issue notice returnable within a month. Affidavit of service may be filed by the next date of listing. List this petition on 21.12.97.
Meanwhile, the operation of the order dated 29.7.1997, Annexure 2 to the writ petition, shall remain stayed."
5. Dasli was handed over to the learned Standing Counsel appearing for the petitioners for service on the respondent to whom notice by Registered, post was also sent on 24.9.1997.
6. The petitioners also filed an affidavit dated 24.10.1997 in regard to service on the respondent, Paragraphs 2 and 3 of which reads as follows :-
"2. That in pursuance of the directions of this Hon'ble Court dated 19.9.1997 passed by a Division Bench consisting of Hon'ble Mr. Justice R.R.K, Trivedi and Hon'ble Mr. Justice M. Katju passed in the present writ petition, the Assistant Clerk, Sri Ram Sewak Singh, personally approached the respondent Sri R.S. Gupta to effect the service of the present writ petition etc. on the respondent, Sri PS Gupta on 25.9.1997. However, the respondent refused to accept the same. A copy of the report submitted by the aforesaid Assistant Clerk is being filed herewith and marked as Annexure No. 1.
3. That in view of the aforesaid fact it is necessary in the interest of justice that the service of the notice on the respondent may be deemed to be sufficient."
6.1. The Report (Annexure-1 to this affidavit) shows, inter alia, that Ram Sewak Singh, Assistant contacted the respondent in his Chamber at 10.30 a.m. of 25.9.1997 and made available to him copy of the writ petition, the order dated 19.9.1997 and summon of this Court; after seeing them the Respondent refused to accept them; the Camp Assistant of the Joint Secretary etc. were apprised of the aforesaid facts; ultimately he was directed by the Secretary to send them by Registered post to the respondent, which he sent vide Registration No. 270, dated 26.9.1997.
6.2. The petitioners also sent a coy of their affidavit dated 24.10.1997 to the respondent through registered post No. 30678, dated 7.11.1997, which is evident from the Registration Receipt affixed on the aforesaid-affidavit.
7. We presume service of repeated notices on the respondent.
8. The respondent has not appeared and filed any counter-affidavit denying the facts pleaded.
9. Mr H R. Misra, learned Standing Counsel appearing on behalf of the petitioners, contended as follows :-
The doctrine of non traverse be applied. The respondent lacked jurisdiction to initiate the case in question and to summon the Answer Book of his son.. He had no inherent powers also since the Code of Criminal Procedure does not vest in him such a power. His directions, thus, were absolutely without jurisdiction and they are liable to be quashed by this Court and the prayers are fit to be allowed.
10. Earlier we had passed the following order :-
"Having heard Sri H.R. Misra, learned Standing Counsel appearing on behalf of the petitioners and perused the writ petition, it prima facie appears to us that while issuing the directions as contained in Anncxures-1 and 2 to the writ petitioner No. 2 the respondent, who is a Judicial Officer of our State, has blatantly abused his office and has acted contrary to the Conduct Rules governing him.
Accordingly, we direct Joint Registrar (Confidential) to apprise us as to whether any disciplinary proceeding has been initiated against him and if initiated, then what was its result.
Put up this writ petition after Lunch for further hearing."
11. The Joint Registrar (Confidential) submitted his Note and the Records from perusal of which following facts transpire :-
11.1. (a) On 6.6.1997 the respondent as Special Judge (Dacoity Affected Area), Jalaun at Orai sent letter to petitioner No. 2 with copy to Secretary of Intermediate Education Board, U.P.. Lucknow (at Page 29/kha).
(b) On 23.6.1997 he passed the following order-"Reply of letters not receiving hence issue notice fixing 30.6.1997 for appearing and hearing". [The order sheet is at Page 2-ka/l and 2-ka/2].
(c) The respondent issued 3 notices - one to petitioner No. 2, another to Sri Dinesh Chandra Kannauja, Secretary and third to the District Inspector of Schools, Jalaun at Orai (which are at Pages 3 to 5) intimating petitioner No. 2 that since the desired informations have not been furnished pursuant to the letter dated 6.6.1997 the non-furnishing of which constitutes committal of offences under Sections 166, 167, 175 and 176 IPC and Section 340 Cr PC and under the Contempt of Court Act, which are punishable offence, hence they should appear on 30.6.1997 and clarify why action under the aforementioned provisions be not initiated.
(d) Sri Shiv Ratan Shukla, the D.I.O.S. Jalaun at Orai wrote D.O. Letter/22/97-98, dated 13.6.97 (which is at Page 7) to the respondent stating that in his office the records are not available; and the centre from which his son had filled up the examination form may be contacted from where more informations can be had.
(e) On 30.6.1997 the respondent passed an order the English translation of which reads as follows :- "The records have been produced. No reply has been received from the Director, Madhyamik Shiksha Parishad, Allahabad and Secretary, Madhya Shiksha Parishad, Allahabad. Letter received from District Inspector of Schools, Jalaun is being kept on record. The record be produced on 15.7.1997. Let notice issue under Sections 349 and 350 Cr.P.C. to the Education Secretary."
(f) On 15.7.1997 he passed the following order :-"None is present wait notice and to be put up on 28.7.1997."
(g) The Secretary of the Madliyamik Shiksha Parishad sent her letter dated 14.7.1997 to the respondent (which is at page 10/ka).
(h) On 28.7.1997 the respondent had passed the following order :-None is present. A report/letter received from Achala Khanna, Secretary. Keep on file and write him to produce Answer Books of Alok Kumar and issue bailable warrant of Rs. 1000/- against Dr. Laxmi Shanker Pandey, Director of Education and Dinesh Chandra Kanaujia past/the then Secretary for appearance and drop the matter against Sri Shiv Charan Shukla, D.I.OS. keeping in view his application dated 26.6.1997 and put up on 18.8.1997. Register a misc. case."
(i) The respondent passed an order on 19.8.1997, the English translation of which reads as follows :- "Today records have been produced. Two Assistants of Madhyamik Shiksha Parishad, Allahabad appeared whose statements were recorded as PW-1 Sangam Lal and PW-2 Devi Prasad and the case is adjourned to 26.8.1997 for further action."
(j) The next order passed on 26.8.1997, the English translation of which reads as follows :- "Records produced. Two employees appeared on behalf of Madhyamik Shiksha Parishad who filed Application 17/kha and produced photo copies of two letters. Ordered that since the persons to whom notices were issued have not appeared personally, therefore, the Application 7/kha is being rejected and 29.8.1997 is fixed for passing appropriate orders."
(k) On 29.8.1997 the respondent prepared an Enquiry Report (which is at pages 20-ka/l to 20-ka/3) holding that the Act of the Officers and Employees of the Shiksha Parishad attract the provisions of Section 166 IPC; the acts of the Director and the past Secretary attract the provisions of Sections 175 and 176 IPC; the Act of the present Additional Secretary Achala Khanna attracts the provisions of Sections 166, 175, 176 and 177 IPC, besides Sections 420, 426 and 427 IPC, and thus action should be taken in the competent Court and since he has sustained extreme much mental tortures hence it is desirable to refer the matter under the Contempt of Court Act and that as per his report appropriate proceedings be initiated.
(l) On 29.8.1997 the respondent had passed an order, the English translation of which reads as follows :- "Enquiry report has been prepared which be kept on the record according to which appropriate action be taken."
11.2. On a complaint made by the Intermediate Education Board Secretary to the Court on its Administrative Side a departmental enquiry against the respondent was initiated and enquiry was entrusted to Bhagwan Din, J., who submitted the Enquiry Report dated 11.11.1998 which is reproduced as under :-
"Hon'ble the Chief Justice by order dated 25.12.1997 nominated me to enquire into the charges levelled against Sri R.S. Gupta, Special Judge (D.A.A.), Jalaun at Orai. The charges are as below :-
Firstly, that on 29.7.1997 while he was posted as Special Judge (D.A.A.), Jalaun at Orai misused his position directing Secretary of Intermediate Education Board, Allahabad, Ms. Achala Khanna to be present with the Answer Books in his Court, in case No. 50 of 1997, State v. Laxmi Prasad Pandey and Ors., in the matter of his own son who failed in the Intermediate Examination, 1997 as a private candidate, violating principles of natural justice and in contravention of the provisions contained under Section 22 of the U.P. Intermediate Education Act, 1921 and thereby he failed to maintain judicial discipline and committed, gross misconduct in discharge of his duties as Judicial Officer within the meaning of Rule 3 of the U.P. Government Servants Conduct Rules, 1956.
Secondly; that when Secretary of the Intermediate Education Board, Allahabad, Ms. Achala Khanna sent special messenger from her office to his Court, who presented an application on 16.8.1997 for obtaining a copy of the petition on which cognizance was taken by him and sought adjournment, copy was not furnished and instead he issued a show cause notice to Ms. Achala Khanna, the Secretary of Intermediate Education Board, Allahabad under Section 340 Cr.P.C, ignoring the provisions contained under Section 22 of U.P. Intermediate Education Act, 1921 and you thereby failed to maintain judicial propriety and committed misconduct within the meaning of Rule 3 of the U.P. Government Servants Conduct Rules, 1956.
In reply to the charges the delinquent Officer accepted that while he was posted as Special Judge (D.A.A.), Jalaun at Orai desired Ms. Achala Khanna, the Secretary of Intermediate Education Board, Allahabad to be present with the Answer Books of the U.P. Intermediate Examination, wherein, his son has appeared and declared failed, in his Court in case No. 50 of 1997, State v. Laxmi Prasad Pandey and Ors.. He has also admitted that Ms. Achala Khaniia sent a special messenger from her office to his Court, who presented an application on 16.8.1997 for obtaining copy of the petition on which cognizance was taken by him and sought adjournment. He further admitted that copy of not furnished and a show cause notice was issued to the Secretary of the Intennediate Education Board, Allahabad, under Section 340 Cr.P.C. He has, however, denied misuse of his position as Special Judge (D.A.A.)/Addl. District Judge, Jalaun at Orai. He pleaded that his son appeared as private candidate in the U.P. Intermediate Examination, 1997. The result was published in daily newspaper "Amar Ujala". There was a mark 'C against his son's Roll Number, indicating cancellation of his candidature. He wrote a letter dated 6.6.1997 to the Secretary of the Board of Intermediate Education and called upon him to explain the position. The Secretary in response to that letter admitted the error and by letter dated 14,7.97 revoked the cancellation of the candidature of Alok Kumar Gupta and declared his result. He further pleaded that on receipt of the mark-sheets he could know that his son Alok Kumar Gupta has been failed in four subjects. Since the Intermediate Board of Education had committed error in evaluation of the Answer Books and preparation of the result of the Intennediate Examination, as admitted by Education Minister Dr. Naipal Singh that there was error in the evaluation of the copies and the preparation of the result of the Intermediate Examination and also there was a news that two boys and three girls attempted to end their lives, therefore, with the intention to verify the correctness of the result of Alok Kumar Gupta, summoned the Answer Books of the Intermediate Examination. In support of his conduct of such referred the observation of the Hon'ble Supreme Court made in the case of All India Judges Association v. Union of India and Ors., AIR 1993 SC 2493, and has stated in his written statement that the Judicial Officers have not been equated with the Executive and Administrative Officers. They are equated with the Cabinet Ministers, that in order to maintain the independence and self confidence every genuine need of the Judicial Officer should be fulfilled, and that as mentioned in Paragraphs 41 and 42 by the Hon'ble Supreme Court in AIR 1992 SC 165, observing that no Judicial Officer may feel personal inconvenience because it effects the administration of justice and also that provisions of Articles 14, 21 and 39(F) of the Constitution of India has been violated by Intermediate Board of Education, Allahabad by discriminating some of the candidates who have been permitted to have an opportunity to see their Answer Books. He was, therefore, constrained on account of above anomalies to enquire into the irregularities, committed by the Board, by summoning the Secretary of the Board under Section 340 Cr.P.C. He has also has pleaded in his written statement that there is no provision for supply of the copy, which is the basis of the enquiry, that he has not violated the provisions contained in Section 22 of the U.P. Intermediate Education Act, 1921 and that has not failed in maintaining judicial discipline. In any event if the Secretary of the Board of the Intermediate Education, Allahabad was aggrieved of the order, calling upon her to show cause, she may have filed an appeal under Section 341 Cr.P.C. against the proceedings under Section 340 Cr.P.C.
In view of the charges levelled against the delinquent Officer and. also having regard to the admissions made by him the only relevant witness deemed proper, was Ms. Achala Khanna, the Secretary of Intermediate Education Board, Allahabad. Hence she has been examined in support of the assertions made in her complaint that Sri R.S. Gupta, Special Judge (D.A.A.), Jalaun at Orai on his own motion instituted a case No. 50 of 1997, State v. Laxmi Prasad Pandey and Ors., and took cognizance and then issued notice under Section 340 Cr.P.C. calling upon her to produce Answer Books of Intermediate Examination, 1997 on 18.8.1997. She did not produce the Answer Books as required by the delinquent officer but through an application, moved by the Special Messenger, Sangam Lal Singh, for supply of the copy of the petition on which the case has been initiated and also for adjournment of the hearing of the case. The delinquent officer rejected the application and issued notice calling upon her to show cause as to why the proceedings under Section 340 Cr.P.C. may not be initiated.
At the very outset, I may mention that the provisions contained in Articles 14, 21 and 39-F of the Constitution of India and also the observations made by the Hon'ble Supreme Court in the case referred to above are not attracted in this matter. The delinquent officer either misunderstood the provisions of the Constitution of India and the observations of the Hon'ble Supreme Court, made in the above cases or he lacks legal acumen which is evident from his conduct in seeking the shelter of them to save himself from the charges of misconduct.
Admittedly no complaint as such has been filed by any body in the Court against Sri Laxmi Prasad Pandey and others for the alleged discrepancies, anomalies, or error in evaluation of the Answer Books and declaration of the result of the U.P. Intermediate Examination. Even if the delinquent officer has taken cognizance of the matter upon his own knowledge under clause (c) of Sub-section (1) of Section 190 Cr.P.C. he ought to have adhered to the provisions contained in Section 191 Cr.P.C. which requires that when Magistrate takes cognizance of an offence under clause (c) of Sub-section (1) of Section 190 Cr.P.C. shall, inform the accused that he is entitled to have the case enquired into or tried by the other Magistrate. The delegent officer has not done so, the submission of the delegent officer that he had proceeded against Ms. Achala Khanna, Secretary of U.P. Intermediate Board, under Section 340 Cr.P.C. and not tinder any other provisions of law. Seemingly he failed to comprehend correctly the provisions contained in Section 340 Cr.P.C. and understand its applications. The section lays down that when, upon an application made to it in this behalf or otherwise, any Court is of the opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceedings in that Court or, as the case may be, be, in respect of the documents produced or given in evidence in a proceeding in that Court. Such Court may, after such preliminary enquiry, if any, as it thinks necessary record a finding to that effect, make a complaint thereof in writing send it to a Magistrate of the first class having jurisdiction. The conditions precedent for initiation of the proceedings under Section 340 Cr.P.C. are two fold. Firstly; that any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193 to 196 (both inclusive) Sections 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court and secondly, that the offence is committed in respect of a document produced or given in evidence in a proceeding in that Court.
Evidently both the above conditions are not fulfilled, in this case, therefore, the notice issued by the delinquent officer against the Secretary of Intermediate Education Board, Allahabad is patently self designed with the object to gain undue advantage from the authority.
The delinquent officer has also lost sight of the principle that one should not be Judge of his own cause. Apart that a Judicial Officer holds office in public interest and not for his personal gain and advantage. The Officer who exercises judicial power, acts recklessly in order to confer undue advantage to himself or his family member to jeopardize the faith of the people reposed in the Judicial department, commits misconduct. The conduct of the delinquent officer is prejudicial to judicial discipline and contrary to the established principle governing the functions of the Courts. The delinquent Officer has exploited his position and misused his authority as a Judicial Officer for the advantage of his own son Alok Kumar Gupta, and thereby committed gross misconduct in discharge of his duties and failed to maintain judicial propriety within the meaning of Rule 3 of U.P. Government Servants Rules, 1956.
Thus, both the charges levelled against the delinquent officer stands squarely proved.
Sd/- Bhagwan Din, J.
11.11.98."
11.3. The respondent was asked to furnish his comments on the aforementioned Enquiry Report.
11.4. The respondent vide his letter dated November 30, 1998 came up with a prayer to supply copies of each documents of case No. 50 of 1997 and to grant two months time from the date of supply of the copies to submit his comments.
11.5. The entire matter was placed firstly before the Administrative Committee of the Court on 20.8.1998 which resolved to place the entire matter before the Full Court.
11.6. The Full Court vide its Resolution dated 20.11.1999 resolved to accept the Enquiry Report and imposed punishment of withholding of two increments with cumulative effect of the respondent.
11.7. The office of the Court also produced Notification No. C-133/DR(S)/95 showing the appointment of the respondent R.S. Gupta, Ilnd Additional District and Sessions Judge, Jalaun at Orai as Special. Judge (D.A.A.), Jalaun at Orai in the vacant Court and his appointment under Section 5(2) of the U.P. Dacoity Affected Areas Act, 1983 as Special Judge against the said Court created for considering the offences under the said Act at Jalaun at Orai.
Our Findings :
12. Rule 19 of the U.P. Government Servants Conduct Rules, 1956, made under Article 309 of the Constitution of India, reads as follows :-
"19. Action in respect of a relation.-(1) Where a Government servant submits any proposal or opinion or takes any other action, whether for or against any individual related to him whether the relationship be distant or near, he shall with every such proposal, opinion or action, expressly State whether the individual is or is not related to him, and if so related, the nature of the relationship.
(2) Where a Government Servant has by any law. Rule or order in force, power of deciding finally any proposal, opinion or any other action that proposal, opinion or action is in respect of an individual related to him, whether the relationship be distant or near and whether that proposal, opinion or action affects the individuals favourably or otherwise he shall not take a decision, but shall submit the case to his Superior Officer after explaining the reasons and the nature of relationship."
12.1. This Rule clearly forbids a Government Servant in taking any decision in respect of his relative rather is required to submit the case to his Superior Officer after explaining his relationship and reason.
12.2. Thus, the respondent was clearly forbidden to issue the impugned notices and directions.
13. There arc three Latin Maxims (i) 'Nemo debet esse judex in propria cause': (ii) 'Nemo judex in causa sua' - the first two means "No man ought to be a Judge in his own cause" and (iii) 'Nemo potent esse simual actor et judex' which means "No one can be at once suitor and Judge".
13.1. In Gullapalli Nagteswararao and Ors. v. Stale of Andhra Pradesh and Ors., AIR 1959 SC 1376, it was held by the Supreme Court as under:-
"..............The principles governing the "doctrine of bias" vis-a-vis judicial Tribunals are well-settled and they arc : (i) no man shall be a Judge in his own cause (ii) justice should not only be done but manifestly and undoubtedly seem to be done. The two maxims yield the result that if a member of a judicial body is "subject to a bias (whether financial or other) in favour of, or against, any party to a dispute, or is in such a position that a bias must be assumed to exist, he ought not to take part in the decision or sit on the Tribunal"; and that "any direct pecuniary interest, however small, in the subject-matter of inquiry will disqualify a Judge, and any interest, though not pecuniary, will have the same effect, if it be sufficiently substantial to create a reasonable suspicion of bias."
13.2. The aforementioned declaration of law was reiterated by a 5 Judges Bench in Mineral Development Limited v. The State of Bihar and Anr., AIR 1960 SC 468.
13.3. In. J. Mohapatra and Co. and anothers v. State of Orissa and Anr., (1984) 4 SCC 103, it was observed thus :-
".........Nemo judex in causa sua, that is, no man shall be a Judge in his own cause, is a principle firmly established in law. Justice should not only be done but should manifestly be seen to be done. It is on this principle that the proceedings in Courts of law are open to the public except in those cases where for special reason the law requires or authorizes a hearing in camera. Justice can never be seen to be done if a man acts as a Judge in his own cause or is himself interested in its outcome. The principle applies not only to judicial proceedings but also to quasi-judicial and administrative proceedings............,."
1.3.4. In Ashok Kumar Yadav and Ors. v. State of Haryana and Ors., (1985) 4 SCC 417, a 5 Judges Bench of the Apex Court held as follows :-
"...............it is one of the fundamental principles of our jurisprudence that no man can be a Judge in his own cause and that if there is a reasonable likelihood of bias it is "in accordance with natural justice and common sense that the justice likely to be so biased should be incapacitated from sitting". The question is not whether the Judge is actually biased or in fact decides partially, but whether there is a real likelihood of bias. What is objectionable in such a case is not that the decision is actually tainted with bias but that the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The basic principle underlying this Rule is that justice must not only be done but must also appear to be done and this Rule has received wide recognition in several decisions of this Court. It is also important to note that this Rule is not confined to cases where judicial power stricto sensu is exercised..........................This Court emphasized that it was not necessary to establish bias but it was sufficient to invalidate the selection process if it could be shown that there was reasonable likelihood of bias. The likelihood of bias may arise on account of proprietary interest or on account of personal reasons, such as, hostility to one party or personal friendship ox family relationship with the other. Where reasonable likelihood of bias is alleged on the ground of relationship, the question would always be as to how close is the degree of relationship or in other words, is the nearness of relationship so great as to give rise to reasonable apprehension of bias on the pan of the authority making the selection.
13.5. In Union of India v. Tulsiram Patel, AIR 1985 SC 1416, a 5 Judges Constitution Bench of the Apex Court held as follows :-
".....Over the years by a process of judicial interpretation two Rules have been evolved as representing the principles of natural justice in judicial process, including therein quasi-judicial and administrative processes. They constitute the basic elements of a fair hearing, having their roots in the innate sense of man for fair play and justice which is not the preserve of any particular race or country but is shared in common by all men. The first Rule is "memo judex in causa sua" or "nemo debet esse judex in propria ccrnsas" as stated in (1605) 12 Co. Rep. 114. that is, "no man shall be a Judge in his own cause". Coke used the form "aliquis non debet esse judex in propria causa qnia non protect esse judex et pars" (Co. Litt. 141-a), that is, "no man ought to be a Judge in his own cause, because he cannot Act as Judge and at the same time be a party". The form "nemo protest esse simid actor et judex", that is, "no one can be at once suitor and Judge" is also at times use..........." (Vide Paragraph 84) X X X X "The two Rules "nemo judes in causa sua" and "audi alter am partem " and their corollary that justice should not only be done but should manifestly be seen to be done have been recognized from early days in English Courts.....................................Both in England and in India they apply to civil as well as to criminal cases and to the exercise of judicial, quasijudicial and administrative powers............." (Vide Paragraph 86) X X X X "..........................Arbitrariness can take many forms and shapes but whatever form or shape it takes, it is none the less discrimination........."(Vide Paragraph 90) X X X X "..........................There are well-defined exceptions to the nemo judex in causa sua Rule as also to the audi alter am partem rule. The nemo judex in causa sua Rule is subject to the doctrine of necessity and yields to it as pointed out by this Court in J. Mohapatra and Co. v. State of Orissa, (1985) 1 SCR 322, 334-5 : AIR 1984 SC 1572, 1576-7)......"" (Vide Paragraph 101) 13.6. These maxims and declaration of laws clearly prohibited the respondent in his issuing the impugned directions and thus they are wholly arbitrary and violative of Article 14 of the Constitution of India.
14. Section 5 of the U.P. Dacoity Affected Areas Act, 1983 reads as follows :-
"5. Constitution of Special Courts.-(1) For the purposes of speedy trial of scheduled offences committed in a dacoity affected area, the State Government may, in consultation with the High Court, constitute, by notification, as many Special Courts as may be necessary in or in relation to such dacoity affected area or areas as may be specified in such notification.
(2) A Special Court shall consist of a Single Judge, who shall be appointed by the High Court from amongst the serving Sessions Judges or Additional Sessions Judges.
Explanation.-In this Sub-section, the word "appoint" shall have the meaning assigned to it in the Explanation to Section 9 of the Code of Criminal Procedure, 1973."
14.1. A bare perusal of the aforementioned Section 5 and the Notification aforementioned shows that the appointment of the respondent was only for conduct of speedy trial of the scheduled offences committed in a dacoity affected area declared as such under Section 3 of the Act and the scheduled offences, as defined under Section 2(b) of the Act which read with the scheduled attached with the Act shows that it was only in relation to offences punishable under Sections 216A, 302, 303, 304, 307, 308, 325, 326, 327, 329, 331, 333, 363, 364, 365, 368, 369, 386, 387, 392, 393, 394, 395, 396, 397, 398, 399, 400, 402 and 511 of the Indian Penal Code.
14.2. Under Section 190 of the Code of Criminal Procedure any Magistrate of 1st Class or of 2nd Class specially empowered under Sub-section (2) to take cognizance under Section 190(1) Code of Criminal Procedure upon receiving a complaint of facts which constitutes such offence; upon a Police Report of such facts upon information received from any person other than a Judicial Officer, or upon his own knowledge, that such offence has been committed may take cognizance of any offence subject to provisions of Chapter XIV.
14.3. The respondent was an Additional District Judge and not a Magistrate of 1st Class or of 2nd Class specially empowered under Section 190(1) Cr.P.C. at Jalaun at Orai.
14.4. Accordingly, the respondent lacked complete jurisdiction to exercise his powers under U.P. Dacoity Affected Areas Act, 1983 against the Shiksha Board Educational Authorities and the directions/orders as contained in Annexures-1 and 2 were in excess of his jurisdiction.
14.5. Clearly in any view of the matter none of the notices had committed any offence under the aforementioned sections of the Indian Penal Code.
15. Section 340 of the Code of Criminal Procedure reads as follows :-
"340. Procedure in cases mentioned in Section 195(1) When, upon an application made to it in this behalf or otherwise, any Court is of opinion that it is expedient in the interests of justice that an inquiry should be made into any offence referred to in clause (b) of Sub-section (1) of Section 195, which appears to have been committed in or in relation to a proceeding in that Court or, as the case may be, in respect of a document produced or given in evidence in a proceeding in that Court, such Court may, after such preliminary inquiry, if any, as it thinks necessary,-
(a) record a finding to that effect;
(b) make a complaint thereof in wrinting;
(c) sent it to a Magistrate of the first class having jurisdiction;
(d) take sufficient security for the appearance of the accused before such Magistrate, or if the alleged offence is non-bailable and the Court thinks it necessary so to do, send the accused in custody to such Magistrate; and
(e) bind over any person to appear and give evidence before such Magistrate.
(2) The power conferred on a Court by Sub-section (1) in respect of an offence may, in any case where that Court has neither made a complaint under Sub-section (1) in respect of that offence nor rejected an application for the making of such complaint be exercised by the Court to which such former Court is subordinate within the meaning of sub- section (4) of Section 195.
(3) A complaint made under this section shall be signed,--
(a) where the Court making the complaint is a High Court, by such Officer of the Court as the Court may appoint;
(b) in any other case, by the Presiding Officer of the Court.
(4) In this section, "Court" has the same meaning as in Section 195."
15.1. Section 195 of the Cod of Criminal Procedure reads as follows :-
"195. Prosecution for contempt of lawful authority of public servants for offences against public justice and for offences relating to documents given in evidence.-(l)No Court shall take cognizance.-
(a) (i) of any offence punishable under Sections 172 to 188 (both inclusive) of the Indian Penal Code (45 of 1860), or
(ii) of any abetment of, or attempt to commit, such offence, or
(iii) of any criminal conspiracy to commit such offence, except on the complaint in writing of the public servant concerned or of some other public servant to whom he is administratively subordinate;
(b) (i) of any offence punishable under any of the following sections of the Indian Penal Code (45 of 1860), namely, Sections 193to196 (both inclusive), 199, 200, 205 to 211 (both inclusive) and 228, when such offence is alleged to have been committed in, or in relation to, any proceeding in any Court, or
(ii) of any offence described in Section 463, or punishable under Section 471, Section 475 or Section 476, of the said Code, when such offence is alleged to have been committed in respect of a document produced or given in evidence in a proceeding in any Court, or
(iii) of any criminal conspiracy to commit or attempt to commit, or the abetment of, any offence specified in sub-clause (i) or sub-clause (ii) except on the complaint in writing of that Court, or of some other Court to which that Court is subordinate.
(2) Where a complaint has been made by a public servant under clause (a) of Sub-section (1) any authority to which he is administratively subordinate may order the withdrawal of the complaint and send a copy of such order to the Court; and upon its receipt by the Court, no further proceedings shall be taken on the complaint:
Provided that no such withdrawal shall be ordered if the trial in the Court of first instance has been concluded.
(3) In clause (b) of Sub-section (1), the term "Court" means a Civil, Revenue or Criminal Court, and includes a Tribunal constituted by or under a Central, Provincial or State Act, if declared by that Act to be a Court for the purposes of this section.
(4) For the purposes of clause (b) of Sub-section (1), a Court shall be deemed to be subordinate to the Court to which appeals ordinarily lie from the appealable decrees or sentences of such former Court, or in the case of a Civil Court from whose decrees no appeal ordinarily lies, to the principal Court having ordinary original civil jurisdiction within whose local jurisdiction such Civil Court is situate :
Provided that-
(a) where appeals lie to more than one Court, the Appellate Court of inferior jurisdiction shall be the Court to which such Court shall be deemed to be subordinate;
(b) where appeals lie to a Civil and also to a Revenue Court, such Court shall be deemed to be subordinate to the Civil or Revenue Court according to the nature of the case or proceeding in connection with which the offence is alleged to have been committed."
15.2. The appearance of the son of the respondent in the Examination and his failure in that examination was none of the business allotted to respondent for its transaction in his Court either by the District Judge or under any Statute. He had thus committed an extreme blunder in assuming his jurisdiction as Court in that regard by completing misusing Sections 195 and 340 Cr.P.C. His acts and orders are thus, without jurisdiction and nullity.
15.3. The law stand well settled that an order passed in absence/excess of jurisdiction is nullity [Vide Kiran Singh v. Chaman Paswan, AIR 1954 SC 340, Paragraph 6; Mahendra Prasad Singh v. Ram Dorha, (1980) 4 SCC 354, Paragraph 34; A.R. Antulay v. R.S. Nayak, (1988) 2 SCC 602, Paragraphs 36 and 37; and Sushil Kumar Mehta v. G.R. Bohra, (1990) 1 SCC 193, Paragraph 26]. In Kuldip Narain Lal v. Mahendra Pal Jain, 1984 Cr. LJ 1243, (at 1246/ Paragraph 10) a Division Bench of our High Court held that there cannot be contempt in non-compliance of order passed without jurisdiction.
16. In All India Judges Association v. Union of India, AIR 1993 SC 2493, in regard to Judges of the subordinate judiciary it was observed/held as follows :-
"As members of the judiciary; they exercise the sovereign judicial power of the State...............The Judges, at whatsoever level they may be, represent the State and its authority......"
In his Enquiry Report the respondent has made reference to this decision and some other decisions but without understanding their correct ratio has misapplied them.
17. We wish the members of the Judiciary could read and remember what has been said by the Hon'ble Apex Court in Brij Mohan Lal v. Union of India, (2002) 5 SCC 1, quoting with approval the following statement, occurring in the book Judges by David Pannick :-
"He [Judge] is a symbol of that strange mixture of reality and illusion, democracy and privilege, humbug and decency, the subtle network of compromises, by which the nation keeps itself in its familiar shape".
Paragraph 8 of this very judgment reads as follows :-
"Burger, C.J., of the American Supreme Court once observed :
"A sense of confidence in the Courts is essential to maintain the fabric of ordered liberty for a free people and it is for the subordinate judiciary by its action and the High Court by its appropriate control to ensure it."
18. In view of our discussions aforesaid we accept the submission of Sri Mishra and hold that the proceedings of Misc. Case No. 50 of 1997, and the various directions/orders made/passed therein from 6.6.1997 to 29.8.1997 all were made malafide, arbitrary, without jurisdiction and are void and nullity. The questions formulated are answered in the affirmative.
19. Accordingly, the entire proceedings of Misc. Case No. 50 of 1997 initiated by the respondent from beginning to end including the various orders, notices and his Enquiry Report all arc quashed by grant of a writ of Certiorari but as he has not appeared to contest this writ proceedings, we make no order as to cost.
20. This writ petition is disposed of accordingly.
21. The office is directed to send a copy of this order to the District Judge, Jalaun at Orai by Monday for is intimation.