'Shocked' Supreme Court orders Allahabad High Court to strip judge of criminal roster

The Supreme Court on Monday came down heavily on Justice Prashant Kumar of the Allahabad High Court for his remarks made in a judgment suggesting that criminal prosecution may be permitted to recover money as an alternative remedy in a civil suit [M/S Shikhar Chemicals v. The State of Uttar Pradesh].

The Bench of Justices JB Pardiwala and R Mahadevan made strong remarks about the High Court judge’s understanding of criminal law.

“We are shocked by the findings recorded in paragraph 12 of the impugned order. The judge has gone to the extent of stating that asking the complainant to pursue civil remedy would be very unreasonable as civil suits take a long time, and therefore the complainant may be permitted to institute criminal proceedings for recovery,” it noted.

The Court said that it has no hesitation in interfering with the order even without issuing notice in the matter.

Pertinently, it ordered the High Court Chief Justice to strip Justice Kumar of the criminal roster.

“We request the Hon’ble Chief Justice of the High Court to assign this matter to any other judge. We further request the Chief Justice to immediately withdraw the present determination of the concerned judge,” the Bench ordered.

The Court was hearing a plea challenging the High Court’s order dismissing an application filed by one M/S Shikhar Chemicals (petitioner) seeking to quash criminal proceedings arising out of a commercial transaction.

The respondent in the case had supplied thread worth ₹52,34,385 to the petitioner-firm, of which ₹47,75,000 was allegedly paid. A complaint was filed before the magistrate claiming that the balance amount remained unpaid.

The petitioner moved the High Court to quash the proceedings, contending that the dispute was purely civil in nature and had been improperly given a criminal colour. However, the High Court dismissed the plea.

In his order dated May 5, Justice Kumar had observed that requiring the complainant to pursue a civil suit would be “very unreasonable” as such suits take years to conclude and, therefore, criminal prosecution was justified.

"O.P. no.2 appears to be a very small business firm and for him, the aforesaid amount along with interest is a huge amount. In case, subject to filing civil suit, O.P. no.2 will not be in position to pursue the civil litigation. In case, O.P. no.2 files a civil suit firstly, it will take years for it to see any ray of hope and secondly, he will have to put more money to pursue the litigation. To be more precise it would seem like good money chasing bad money. If this Court allows the matter to be referred to civil court on account of civil dispute between the parties, it would amount to travesty of justice and O.P. no.2 would suffer irreparable loss and he might even not be in a position to emerge from the financial constraints to pursue the matter," the High Court said in its order.

The Supreme Court described this reasoning as untenable. The order passed by the High Court was accordingly set aside and the matter was remanded for fresh consideration by a different judge.

It added that Justice Kumar should henceforth sit only in a division bench with a senior judge and should not be assigned any criminal determination, even if allotted single bench matters.

“In any view of the matter, the concerned judge shall not be assigned any criminal determination till he demits office. If at all at some point of time he is to be made to sit as a single judge, he shall not be assigned any criminal determination,” the apex court directed.