New Delhi: The Supreme Court’s recent order wherein it barred an Allahabad High Court judge from hearing criminal cases, has drawn critical reactions from the legal fraternity across the country.
Some say that the top court has failed to consider the correctness of the decision, while others say that it has no powers of superintendence over high courts, and that one “ill-designed sentence” cannot be used as a basis to bash a judge.
For this story, ThePrint spoke to members of the Bar and the bench to get a sense of their mood.
The order in question was passed on 4 August by a bench of Justices J.B. Pardiwala and R. Mahadevan. Essentially, it quashed a 5 May order passed by Justice Prashant Kumar, saying it is “one of the worst and most erroneous orders”, where the judge allowed criminal prosecution, in what it deemed to be a purely civil dispute.
Incidentally, the Supreme Court is scheduled to rehear the case this Friday.
Earlier this week, the bench of Justices Pardiwala and Mahadevan, had in a rare act of judicial censure, directed the Chief Justice of the Allahabad HC to “immediately withdraw the present criminal determination from the concerned Judge”, while adding that he must be made to sit in a division or two-judge bench, with another seasoned judge.
The top court also ruled that the judge will not be assigned any criminal matters, 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 SC ruled in its 19-page order.
Former Chief Justice of Bombay and Rajasthan high courts, Justice Pradeep Nandrajog said, “Firstly, no one is looking at the correctness of this decision. In my opinion, the Allahabad HC judge was correct in his reasoning.”
The case originated from a transaction between the accused chemical company and the complainant textile firm, wherein the latter accused the former of making a payment short of Rs 4 lakh, Justice Nandrajog told ThePrint.
“The complainant also said that he received a notice from GST authorities regarding an invoice drawn up, purportedly by him, and relied on for the purpose of credit. As part of it, he showed that the complainant demanded Rs 5 lakh less than the amount actually demanded by him. This is forgery.”
Recalling Justice Kumar’s order, the retired judge said, “It may have been an ill-designed sentence, but you cannot pick one line and bash the judge”.
He underlined that the HC judge, in other words, said that if he quashes the criminal complaint, the remedy would lie in the civil court, which could entail a long-drawn out, and expensive process for a small time firm, which was the textile company.
“If I am limping because one of my legs is injured, you won’t hold that up against me. Similarly, this should be seen as a cry of anguish from the judge, who is trying to convey the plight of several litigants who feel as if they have no relief in civil trials.”
Justice Nandrajog also pointed out that the SC judges should understand that if “incidentally” “something improper” is said, which isn’t relevant to the facts of the case, it cannot result in excluding the judge from adjudicating matters.
Explaining how the Supreme Court does not exercise superintendence over the high courts, the former CJ, said, “If you have a problem with the judge, you can impeach him, or even transfer him, but this attitude of condemning judges is not right.”
On the other hand, Supreme Court Bar Association president and senior advocate, Vikas Singh, said that the present action of the top court is “completely unconstitutional”. “While I do agree that the high court should not have passed such an order, the top court could have set aside the order, or even impeached the judge, if at all, but this is worse than impeachment.”
Stripping a High Court judge of a criminal roster, is always up to the discretion of the Chief Justice of the High Court, Singh explained, adding that the apex court has no power of superintendency over HCs.
Under the constitutional scheme, high courts are not subordinate to the Supreme Court, senior advocate Sanjoy Ghose told ThePrint. “In fact, the Supreme Court, in several judgments, has said that if strictures are passed against a judge, or he is condemned, this cannot be done without giving him or her an opportunity to be heard first.”
“The order appears to have been passed on a misconception that the Supreme Court has administrative control over a High Court judge. The Constitution clearly spells out the powers of both courts and this is evidently not included,” Justice Anjana Prakash, a former judge of the Patna HC, told ThePrint.
“Only the Chief Justice of a High Court can determine the roster of a judge of that court and no one else.”
She also said this kind of order could have been avoided so as to steer clear of any misgiving that the Supreme Court was interfering in judicial matters.
Thirteen judges of the Allahabad High Court on Thursday evening wrote to Chief Justice Arun Bhansali requesting him to convene a full court meeting and not give effect to the SC order removing Justice Kumar from the criminal roster.
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Why was the judge pulled up
On 5 May, the Allahabad High Court passed an order where it dismissed a plea seeking to quash a criminal complaint, which was borne out of a commercial transaction between Lalita Textiles and Shikhar Chemicals.
While the textile company said that it supplied threads worth over Rs 52.34 lakh, the chemical company only paid Rs 47.75 lakh leading to unpaid dues of over Rs 7 lakh rupees. As a result, the textile company filed a criminal complaint, saying that a criminal breach of trust had occurred.
Subsequently, Shikhar Chemicals moved the HC seeking setting aside of the criminal case, saying that the dispute was civil in nature.
Refusing to quash the criminal complaint against Lalita Textiles, Justice Kumar had said that the complainant’s limited financial capacity, owing to it being a small business firm, and the long-drawn out nature of civil litigation, were sufficient reasons for the criminal proceedings in this case to continue.
“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,” the judge said.
He also noted that referring this case to a civil court would cause “irreparable loss” to the textile company.
However, the Supreme Court took strong exception and labelled it as “one of the worst and most erroneous orders”.
“The judge has gone to the extent of saying that asking the complainant to pursue civil remedy for the purpose of recovery of the balance amount will be very unreasonable as a civil suit may take a long time before it is decided and, therefore, the complainant should be permitted to institute criminal proceedings…,” it said.
(Edited by Tony Rai)
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