In a rare development, the Madhya Pradesh High Court has taken suo motu cognizance of a Single Judge's order recommending an inquiry against a judicial officer for dropping serious charges against a person accused of embezzlement of lakhs of rupees in a land acquisition matter

The Division Bench of Justice Atul Sreedharan and Justice Pradeep Mittal said the order was based on speculation and uncalled for. The aforesaid direction is chilling, the Court said.

"In paragraph 12 of these order, the Ld. Single Bench has passed damning and disparaging remarks against the Ld. Trial Court much against the consistent law laid down by the Hon'ble Supreme Court to the effect that the High Courts must desist from passing observation which have the propensity to besmirch the fair name of the Trial Court Judge, even before he is given an opportunity to defend his order," the bench said in an order passed on Monday.

The Court directed the High Court Registrar General to file a Special Leave Petition against the Single Judge's order before the Supreme Court within a period of ten days from the date of this order.

"As this order is not passed in an adversarial capacity, and there is no adversity suffered by the High Court on account of this order, it obviates the necessity to issue notice and call for a reply from the High Court," the Court said, while listing the matter for hearing on October 06.

The order for inquiry against Additional Sessions Judge Vivek Sharma was passed on September 12 by a recently-appointed judge Justice Rajesh Kumar Gupta. The Single Judge had remarked that judge Sharma appeared to have dropped the serious offences against the embezzlement accused to ensure that he gets the benefit of bail.

“A copy of this order be sent to the Principal Registrar (Vigilance), High Court of Madhya Pradesh, Principal Seat, Jabalpur and to put up the same before the Hon'ble Chief Justice, High Court of Madhya Pradesh seeking permission for conducting an inquiry and for taking disciplinary action against Ist Additional Sessions Judge (Shri Vivek Sharma), Shivpuri who had discharged the present applicant from the offences punishable under Sections 409, 420, 467, 468, 471, 120-B and 107 of IPC without considering the facts of the case and to give undue advantage to the applicant to get benefit of bail. Therefore, it appears that Ist Additional Sessions Judge has ulterior motive in holding charge under Section 406 of IPC only against the applicant to give undue advantage to him by which applicant can avail the benefit of bail,” Justice Gupta said.

The direction was passed in the order denying bail to accused Roop Singh Parihar, a computer operator in the office of Land Acquisition Officer.

The case was registered last year alleging that a payment of over ₹6.55 lakh was to be made to four persons in a land acquisition matter but instead over ₹25 Lakh was transferred to eight persons including Parihar and his wife. Parihar is alleged to have forged the orders of the Collector. 

Justice Gupta opined that the Additional District and Sessions Judge had erred in discharging the accused of most of the charges.   

In the order taking suo motu cognizance of Justice Gupta's order, the Division Bench led by Justice Sreedharan observed that no revision plea against the discharge order was pending before the Single Judge and thus he could not have passed such view.

"The observations in paragraph 12 of the orders under consideration were in excess of the exercise of bail jurisdiction as the Ld. Single Bench was not in seisin of any revision preferred against the order passed by the Ld. Trial Court but has yet, commented upon the order framing charge by the Ld. Trial Court."

Explaining why it was compelled to take this rare action over Justice Gupta's order, the Division Bench said that the High Court under Articles 227 and 235 exercises the power of superintendence over the District Judiciary and in that capacity, it has to not only correct the errors on the part of the District Judiciary, but has to also discharge its function as the guardian of the District Judiciary.

"The High Court becomes the sentinel protecting the District Judiciary from its (High Court’s) excesses and ensure that the independence and fearlessness of the District Judiciary is not emasculated (as in weaken or reduced in power and authority)," it added.

The Court acknowledged that Justice Gupta's order is not amenable to its appellate jurisdiction. It added that in similar cases, writ appeals have been entertained suo motu by the division bench of the High Court holding that exceeding jurisdiction in a bail order would be considered as an order passed under article 226. 

However, the Division Bench said it would not choose that path and, thus, directed the Registrar General to move the top court

"This Court is wary to follow suit. Though, extraordinary jurisdiction under article 226 and inherent jurisdiction under section 482 Cr.P.C inheres in the High Court, irrespective of the roster, the exercise of either has to be through a conscious process where the High Court, unambiguously or through inescapable inference, discloses its intention to exercise such authority. However, when the High Court exceeds its discretion and jurisdiction in a given case, the same has to be deemed an error on the part of the High Court rather than presuming the same to be an order in the exercise of its extraordinary or inherent jurisdiction," it added.

[Read Order]