Tuesday, February 07, 2023

Editorial

Magistrates And Judges Are Not Above Law : Kerala HC

PUNJAB NEWS EXPRESS | December 24, 2022 10:04 PM

By Sanjeev Sirohi
While sending a very strict, loud and clear message to all the judicial officers, the Kerala High Court as recently as on December 23, 2022 in a learned, laudable, landmark, logical and latest judgment titled Mohammed Nazer M.P. & Ors. vs Union Territory of Lakshadweep & Ors. in OP(Crl.) Nos. 608 and 609 of 2022 in Crime No.6/2015 of Agathi Police Station, Lakshadweep against the order/judgment in CC 24/2016 of Chief Judicial Magistrate, Amini, Lakshadweep and cited in 2022 LiveLaw (Ker) 667 has held most elegantly, eloquently and effectively that, “Even if a person is occupying the post of Magistrate or Judge, the law of the land is applicable to all.

If there is any dereliction of duty, the constitutional courts should step in to strengthen the trust of the people in the judiciary. The Magistrate, Judges and other presiding officers are not above the law and if they commit any dereliction of duty, they have to face the consequences. This should be a lesson to all.” This was held so while ordering the suspension of a former Chief Judicial Magistrate (CJM) of Lakshadweep for allegedly forging evidence in a criminal trial to convict an accused. Hon’ble Mr Justice PV Kunhikrishnan said quite upfront while directing the Administrator of the Union Territory of Lakshadweep that, “This should be a lesson to all”. It also must be mentioned here that the Kerala High Court issued notice under Section 340 (perjury proceedings) of the Criminal Procedure Code (CrPC) to the former CJM K Cheriyakoya and also the then bench clerk PP Muthukoya and LD clerk AC Puthunni for conducting preliminary enquiry.

At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench of Hon’ble Mr Justice PV Kunhikrishnan sets the ball in motion by first and foremost putting forth in para 1 that, “This is a strange case in which serious allegation of forgery is alleged against the Chief Judicial Magistrate, Amini Island. It is alleged that some of the accused in a criminal case pending in that court filed a complaint before the administrative side of this Court against the conduct of the Chief Judicial Magistrate, Amini, who is also acting as the Sub Judge, in the trial of their civil case. Aggrieved by the same, the Chief Judicial Magistrate forged the evidence of an Investigating officer and convicted the accused in the absence of the accused and issued warrant to them is the allegation. The learned Magistrate sentenced the accused person to undergo a sentence of 4½ years under different sections of Indian Penal Code and directed them to serve the sentence separately with a malafide intention to put the accused behind bars is the further allegation.”

Most forthrightly, the Bench then enunciates in para 2 that, “If the allegation against the Chief Judicial Magistrate is true, it is unfortunate and unheard of. The immense faith of the citizens of this country in the Indian Judiciary itself is the backbone of our judicial system. So, the judicial officers should be above board. But of course, there may be criticism against judicial officers and that is only because of the immense faith of the people in this system. Fair criticisms will undoubtedly improve the system. The judicial officers however, need not respond to those criticisms, but they should concentrate on their commitment to the system and prove their integrity and fair play while decision making. The pen of a judicial officer is powerful, but it should be used with great caution, of course without fear and favour. The famous Roman statesman, lawyer, scholar, and philosopher, Marcus Tullius observed that “The magistrates are the ministers for the laws, the judges their interpreters, the rest of us are servants of the law, ………………..”. If the allegation raised by the petitioners/accused against the Chief Judicial Magistrate, Amini is true, the said Magistrate is not fit to continue in any position, for a second.”

Needless to say, the Bench then envisages in para 3 that, “The short facts of the case are like this: Petitioners in OP(Crl.) No.608/2022 are the accused Nos.1 to 15 in C.C.No.24/2016 on the file of the Chief Judicial Magistrate Court, Amini. The above case is charge sheeted against the petitioners alleging offences punishable under Sections 143, 147, 188, 186 and 353 r/w Section 149 IPC.”

While elaborating on the prosecution version, the Bench hastens to add in para 4 that, “The prosecution allegation is that a, a contractor by the name V.K.Dawood who was engaged in plucking coconut from the Government land requested the Deputy Collector/Sub Divisional Magistrate, Agatti for seeking police assistance for plucking coconut on the southern side of Panchayath stage in Ward No.7 Agatti Island. The Deputy Collector/Sub Divisional Magistrate, Agatti issued an order directing the Amin, Agatti and Deputy Surveyor, Agatti to supervise the aforesaid work of plucking the coconut with police assistance. It is further alleged that when the Amin, Deputy Surveyor and the contractor was supervising the plucking of coconut, a mob of around 40 persons led by the 1st and 2nd accused formed into an unlawful assembly with an intention of rioting, obstructed the Amin, Surveyor, contractor and the coconut climbers. It is also alleged that, they forcefully took the coconuts plucked and obstructed their duty. Hence crime No.6/2015 of Agatti Police Station was registered which was investigated and final report was submitted before the Chief Judicial Magistrate Court, Amini. The learned Magistrate took cognizance of the offence and numbered the case as C.C.No.24/2016. The accused appeared before the learned Magistrate on summons and they were enlarged on bail.”

To put things in perspective, the Bench then envisages in para 5 that, “The trial in this case started and PW1 to PW5 were examined on 07.03.2019. PW6 was examined on 08.03.2019. On 28.02.2020, CW19, the Investigating officer mounted the box as PW7. But he was not ready to depose because the Assistant Public Prosecutor (APP) was not present, thus the learned Magistrate adjourned the matter. The case of the petitioners is that, on 19.10.2022, even though the witnesses were not present, the learned Chief Judicial Magistrate issued warrant to the petitioners. The accused persons subsequently advanced the case and appeared on 03.11.2022 to recall the warrant. It is stated in the Original petition that, on that day, the learned Chief Judicial Magistrate on seeing the petitioners on the veranda of the Court, before calling the case instructed the Mukthiar that, warrant is already recalled and they can go home. It is the case of the petitioners that, on 10.11.22, summons was issued to CW18 for giving evidence. On 10.11.22, CW18 was examined as PW8. It is the specific case of the petitioners that the counsel for the accused submitted to the learned Magistrate to issue summons to PW7 who is the Investigating officer for cross examining him. It is the case of the petitioners that, to their utter surprise and dismay, the learned Chief Judicial Magistrate informed that CW19/PW7 was already examined on 24.03.2021 at Kadamath Island Camp Sitting. It is also the case of the petitioners that on a perusal of the ‘A Diary’, no such proceedings regarding the examination of PW7 was noted on 24.03.2021. It is also the case of the petitioners that, if PW7 was examined on that day, definitely there will be a signature of the witness in the deposition. The petitioners obtained the alleged deposition of PW7 recorded by the learned Magistrate on 24.03.2021, which is produced as Ext.P2. A perusal of Ext.P2 will show that it is not signed by CW19/PW7. Therefore, it is stated that Ext.P2 is a forged evidence by the learned Magistrate to convict the petitioners.

It is specifically stated in the original petition that the Chief Judicial Magistrate has personal enmity towards the accused in this case because some of the accused are the plaintiffs in a civil suit and they have filed a complaint against the prejudiced view of the Chief Judicial Magistrate before the Registrar (Subordinate Judiciary) of the High Court of Kerala. It is stated that the same is pending enquiry. Hence it is contented that the action of conducting trial on the part of the learned Chief Judicial Magistrate is tainted and thus it is not a fair trial. It is also stated that the Chief Judicial Magistrate is taking a vindictive action against the petitioners. Petitioners submitted Ext.P3 written statement before the learned Magistrate narrating the grievance. Thereafter the petitioners also submitted an application under Section 311 of the Code of Criminal Procedure, 1973 to reexamine PW7. Ext.P4 is the application. The petitioners also submitted a list of 7 defence witnesses to be examined on their side and filed a petition to issue summons. Ext.P5 is the application. It is the specific case of the petitioners that without considering Exts.P4 and P5, the case was posted for judgment on 15.11.2022. On 15.11.2022 the learned Magistrate convicted the accused and imposed a sentence of imprisonment for a period of 4 ½ years under different Sections of IPC, and directed the accused persons to undergo the sentence separately. Thereafter, the learned Magistrate issued warrants to the petitioners.”

It would be instructive to note that the Bench then states in para 18 that, “Section 276 of the Code deals with the record in trial before the Court of Sessions. Once the evidence is recorded as per Section 275 of the Criminal Procedure Code or under Section 276 of the Criminal Procedure Code, it is the duty of the Magistrate/Judge concerned to read over the evidence recorded to the witness in the presence of the accused, if in attendance, or of his pleader, if he appears through a pleader, and shall, if necessary, be corrected. If the witness denies the correctness of any part of the evidence read over to him, the Magistrate or Presiding Judge may, instead of correcting the evidence, make a memorandum thereon of the objection made to it by the witness and shall add such remarks as he thinks is necessary.

This is a salutary provision in the Criminal Procedure Code. But several Magistrate Courts and the Sessions Courts are not following the above procedure because of the lack of time. It is true that the Magistrates and Judges are overburden with trial and if the chief examination and cross examination is to be read over in open Court in each and every case, it will necessarily be a time-consuming process. But when the Code prescribes certain procedures to be done in certain manner, it is the duty of the Magistrate and the Judges to follow the same. If due to any circumstance the presiding officer is not able to read over the evidence recorded, the Magistrate or the Judge concerned should record the reason for not following the same.

In such cases, after recording the reason, the magistrate or the judge can allow the witness to read the evidence in the presence of a court staff from inside the court hall and that too in a place in the court hall under the direct supervision of the presiding officer. This procedure shall be avoided as far as possible except in unavoidable situations. Thereafter, the witness has to sign the deposition in the light of Rule 57 of the Criminal Rules of Practices in Kerala. It will be better to extract Rule 57 of the Criminal Rules of Practice here:

“57. Signing of depositions.- After a deposition has been read over to the witness, the last page thereof shall be signed in full by him. The Judge shall initial every page if the deposition is not recorded in his hand. A certificate in the following form shall be appended at the foot of the deposition and the Judge shall affix his signature with date thereto over his name:

“Taken down by me/before me in open Court, interpreted/read over to the witness and admitted by him to be correct.””

Finally and far most significantly, the Bench then concludes by holding in para 24 that, “From the above discussions, I am of the prima facie opinion that the additional 3rd respondent forged the evidence of PW7 and he is liable to be proceeded as per Sec.340 of the Cr.P.C. I am of the opinion that it is expedient in the interest of justice that an enquiry should be made into the offence referred to in clause (b) of sub-section (1) of Sec.195 Cr.P.C because the additional 3rd respondent appears to have been committed the offence.

Prima facie, I am of the opinion that a preliminary enquiry is to be conducted. Whether the Bench Clerk and the LD Clerk (Bench Assistant) are involved in aiding the additional 3rd respondent is to be decided based on their statement before this Court in the preliminary enquiry. If Exts.R4(d) and R4(e) is correct, they are also liable to be proceeded in accordance with law. Therefore, notice is to be issued to the Bench Clerk and LD Clerk (Bench Assistant) also under Sec. 340 Cr.P.C. for conducting preliminary enquiry. Moreover, I am of the considered opinion that disciplinary proceedings is to be initiated against the additional 3rd respondent. Prima facie, I am of the opinion that the additional 3rd respondent committed serious misconduct and dereliction of duty.

The disciplinary authority of the additional 3rd respondent is the Administrator, Union Territory of Lakshadweep. In the peculiar facts and circumstances of this case, I am of the opinion that the disciplinary authority should place the additional 3rd respondent under suspension pending enquiry. It is true that whether a person is to be placed under suspension pending enquiry is to be decided by the Disciplinary Authority. But in extra ordinary situations, extra ordinary orders are necessary to protect the interest of justice. I am of the opinion that this is a fit case in which this Court has to direct the Administrator Union Territory of Lakshadweep, to place the 3 rd respondent under suspension pending enquiry. It is true that now the additional 3rd respondent is working as Secretary, District Legal Service Authority. But even then, since he is in the service, there are chances to influence the witness and even intrude into the documents by the additional 3rd respondent.

Therefore, I am directing the Administrator to place the 3rd respondent under suspension pending enquiry. Such a direction is necessary to protect the faith of the public in the system. Even if a person is occupying the post of Magistrate or Judge, the law of the land is applicable to all. If there is any dereliction of duty, the constitutional courts should step in to strengthen the trust of the people in the judiciary. The Magistrate, Judges and other presiding officers are not above the law and if they commit any dereliction of duty, they have to face the consequences. This should be a lesson to all. Therefore, these original petitions are disposed of with the following directions:

1) The Administrator, Union Territory of Lakshadweep is directed to place the additional 3rd respondent under suspension forthwith and conduct a detailed enquiry about his actions mentioned in this order forthwith and take appropriate steps in accordance with law, untrammelled by any observation in this judgement.

2) The petitioners in these cases are allowed to raise all their contentions raised in these original petitions before the appellate court by filing appeal against the conviction and sentence imposed in CC No. 24/2016 on the file of the Chief Judicial Magistrate Court, Amini, Lakshadweep. If no appeal is filed so far, no coercive steps shall be taken against the petitioners for a further period of one month from today.

3) Issue notice under Sec.340 Cr.P.C. to the additional 3rd respondent, Sri.K.Cheriyakoya, Former Sub Judge/Chief Judicial Magistrate, AMINI, LAKSHADWEEP, now working as the secretary, District Legal Service Authority, LAKSHADWEEP, Sri.P.P.Muthukoya, Bench Clerk, Chief Judicial Magistrate Court Court, Amini and Smt. A.C.Puthunni, LD Clerk (Bench Assistant), Chief Judicial Magistrate Court, Amini for conducting a preliminary enquiry because this Court is of the opinion that it is expedient in the interest of justice that such an enquiry should be made into the offences referred in Clause (b) of sub-section (1) of Sec. 195 Cr.P.C. The Registry will enclose a copy of this order also along with the notice issued under Sec.340 Cr.P.C. to the persons mentioned above.

4) The Registry will give a separate number to the Sec.340 Cr.P.C. proceedings in accordance with law and post the case on 23.1.2023 for the appearance of the additional 3rd respondent and other persons mentioned above. Advocate Dheerendrakrishnan K.K is appointed as Amicus curie to assist the court during the preliminary enquiry under Section 340 Cr.P.C. Registry will show the name of the Amicus curie in the cause list.

5) Registry is directed to forward a copy of this judgement to the Administrator, Union Territory of Lakshadweep forthwith.”

No doubt, this extremely commendable, courageous, cogent and creditworthy judgment will send shivers down the spines of all those who inspite of being a Judge or Magistrate dare to think themselves as being above the law of the land whom no one can touch! It is a clear warning to all judicial officers that if they dare to tinker with law then they too would have to pay heavily just like any other ordinary citizen and would not be allowed to escape scot free! No doubt, the final verdict is yet to be delivered on whether the CJM is guilty or not of forging evidence in trial but a heavy blow on CJM has certainly been inflicted Kerala High Court by suspending CJM pending enquiry and ordering detailed investigation into the role of the CJM thus clearing sending a very strong message that, “Judges and Magistrates are also not above the law.” It thus merits no reiteration that the earlier the Judges and Magistrates pay heed in its entirety to what the Kerala High Court has laid down so very commendably in this leading case, the better it shall be in their own long term personal and professional interests also! No denying it!

Sanjeev Sirohi, Advocate,
s/o Col (Retd) BPS Sirohi,
A 82, Defence Enclave,
Sardhana Road, Kankerkhera,
Meerut – 250001, Uttar Pradesh.

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