At the outset, it must be said with certitude that it merits no reiteration that all the Judges of High Courts in India including the Chief Justices also must definitely read the latest, learned, laudable and landmark judgment titled Somesh Chaurasia vs State of MP in Criminal Appeal Nos 590-591 of 2021 @ SLP (Crl) Nos. 4998-4999 of 2021 delivered on July 22, 2021 by a two Judge Bench of the Apex Court comprising of Justice Dr DY Chandrachud and Justice Hrishikesh Roy in exercise of its criminal appellate jurisdiction wherein it is held that the colonial mindset which pervades the treatment meted out to the district judiciary must change. The Bench also noted with dismay that the trial Judges work amidst appalling conditions. In a telling commentary on the actual sorry state of affairs prevailing in our country, the Bench said that, “Lack of infrastructure, inadequate protection, examples of Judges being made targets when they stand up for what is right and sadly, a subservience to the administration of the High Court for transfers and postings which render them vulnerable.” It must be apprised here that the Apex Court was considering an appeal against the Madhya Pradesh High Court order concerning the Congress leader Devendra Chaurasia’s murder in Damoh in Madhya Pradesh. In this very case, the Court had earlier taken note of the harassment that was faced by the Additional Sessions Judge, Hata who is in charge of the criminal case.
To start with, this notable judgment authored by Justice Dr DY Chandrachud for himself and Justice Hrishikesh Roy of the Apex Court sets the ball rolling by first and foremost observing in para 1 that, “This appeal arises from an order by a Division Bench of the High Court of Madhya Pradesh dated 23 July 2019. The High Court declined to entertain two applications – IA 6837 of 2019 filed by the State of Madhya Pradesh and IA 5781 of 2019 filed by the appellant – seeking a revocation of the suspension of sentence and bail granted to the second respondent.”
Briefly stated, the Bench then puts forth in para 2 that, “The second respondent has been convicted of an offence punishable under Section 302 of the Indian Penal Code (“IPC”) and sentenced to suffer imprisonment for life. By an order dated 3 February 2016, the High Court directed that the sentence shall, during the pendency of the appeal, remain suspended under the provisions of Section 389(1) of the Code of Criminal Procedure 1973 (“CrPC”).”
As we see, the Bench then points out in para 3 that, “Two applications were moved before the Division Bench of the High Court (IA 6837 of 2019 and IA 5781 of 2019) for cancellation of bail and revocation of the order dated 3 February 2016 suspending the sentence of the second respondent. These applications for bail were filed by the appellant and by the State of Madhya Pradesh. The appellant sought cancellation of bail on the ground that after the sentence was suspended, FIR No 143 of 2019 was registered against the second respondent at Police Station Hata, District, Damoh, in which he is implicated in the murder of the appellant’s father. The State of Madhya Pradesh sought cancellation of bail on the ground that:
(i) The second respondent has two other convictions against him on a charge of murder;
(ii) The second respondent has been convicted of another crime for offences punishable under Section 399 and 402 of the IPC and Section 25 (1) (1B)(a) of the Arms Act; and
(iii) An FIR has been registered at the behest of the appellant alleging that the second respondent is involved in the murder of his father during the period when he was on bail.”
Be it noted, the Bench then brings out in para 8 that, “The order dated 8 January 2021 passed by the ASJ specifically refers to the criminal record of the second respondent, and is extracted below:
“Details of criminal records of accused Govind Singh are accordingly:-
PS-DAMOH DEHAT
S.No. Crime Case No. Under Sections
1. 150/93 147, 148, 149, 302, 34 of IPC.
2. 173/94 393, 365, 34 of IPC.
3. 169/04 395, 396, 397, ofIPC.
4. 170/04 147, 148, 149, 302, 324 of IPC, and under section 3/5 and under section 25/27 Arms Act.
5. 414/06 399, 402 of IPC, and under section 25/27 Arms Act.
6. 68/07 364, 34 of IPC.
7. 390/07 384 of IPC.
8. S.No. 01/10 Under section 3(2) of the MP Protection Act, 1980.
9. S.No. 02/19 Under section 3(2) of the MP Protection Act, 1980.
10. S.No. 08/19 Under section 110 Jaa.fau.
11. S.No. 160/19 Under section 107, 116 (3) Jaa.fau.
12. 203/95 396, 386, 365 of IPC.
13. 241/96 384, 34 of IPC.
14. 44/99 384 of IPC.
15. 168/2000 341, 294, 506B, 34 of IPC.
16. 80/04 307, 34 of IPC.
17. 171/04 394 of IPC.
18. S.No. 01/13 Under section 6 of the MP Protection Act, 1980.
19. S.No. 01/19 Under section 3(2) of the MP Protection Act, 1980.
20. S.No. 07/19 Under section 110 jaa faa.
21. S.No. 159/19 Under section 107, 116(3) jaa faa.
PS-PATHARIA, DAMOH
22. 56/92 294, 323, 34 of IPC, under section 3(1-10) SC STAct.
23. 93/92 436, 34 of IPC, under section 3(1-10) SC ST Act.
24. 31/10 147, 341, 307, 506 of IPC.
25. 157/93 295, 397 of IPC.
26. 169/90 294, 506, 427 of IPC.
PS-KOTWALI DAMOH
27. 578/98 307, 302, 34, 120 of IPC and Arms Act.
28. 214/16 147, 452, 294, 506, 34 of IPC.”
The ASJ provided reasons in his order for taking steps in pursuance of the provisions of Section 319 of CrPC to arraign the second respondent as an accused.”
It is worth noting that the Bench then discloses in para 9 that, “Thereafter, in his order dated 8 February 2021, the ASJ noted that though he was taking action in compliance with the directions of this Court for ensuring service on the second respondent, the process of the court was being obstructed. The ASJ expressed a serious apprehension that the accused and the Superintendent of Police (“SP”), Damoh had colluded with the subordinates of the latter “to frame serious charges” against the judge. The accused, the trial judge noted, is a “highly influential political person” and though false allegations had been made against the judge for transfer of the case, the application for transfer had been dismissed by the District Judge. The relevant extract from the order dated 8 February 2021 reads as follows:
“The action in this case is being taken in compliance with the directions given by Hon. Supreme Court expeditiously. But accused persons are highly influential political persons and have raised false allegations against me and made application for transfer of case before Hon. District Judge which was found false and Hon. District Judge had dismissed the application with cost and being contemptuous. But like accused persons, now Police Superintendent Damoh had connived with his subordinates and made false and fabricated pressure on me. From the above such acts it is clear and I am confident that accused persons with Police Superintendent Damoh had colluded with his subordinates to frame serious charges against me in future or any unpleasant incident can be done with me.””
Lamentably, the Bench then points out in para 10 that, “Adverting to these developments, this Court took serious note of the anguish expressed by the ASJ on 8 February 2021 and noted in its order dated 12 March 2021 that:
“8. The order of the learned Additional Sessions Judge dated 8 February 2021 indicates that he is being pressurized by the Superintendent of Police, Damoh, who, together with his subordinates, is attempting to pressurize the judicial officer. The judicial officer has expressed the apprehension that the accused who are “highly influential political persons” have raised false allegations against him and applied for transfer of the pending case which was dismissed by the District Judge after it was found to be false. The learned Additional Sessions Judge has apprehended that he may be subjected to an “unpleasant incident” in the future.””
Quite revealingly, the Bench then reveals in para 11 that, “The order of this Court dated 12 March 2021 took note of the fact that:
(i) Despite the registration of an FIR on 15 March 2019 where the appellant had alleged that the second respondent was complicit in the murder of his father no steps were being taken by the investigating authorities to arrest him;
(ii) In this backdrop, it was the ASJ who was constrained to issue summons to the second respondent under Section 319 of the CrPC to face trial;
(iii) Despite the issuance of warrants against him, the second respondent continued to abscond; and
(iv) It had been stated during the course of the proceedings that the spouse of the second respondent is an MLA and “all possible steps are, therefore, being adopted to shield the second respondent from the coercive arm of the law”.
Taking note of the apprehension expressed by the ASJ that he was being targeted, this Court observed:
“10. We take serious note of the manner in which the Additional Sessions Judge, Hata who is in charge of the criminal case has been harassed by the law enforcement machinery in Damoh. We have no reason to disbelieve a judicial officer who has made an impassioned plea that he was being pressurized as a result of his orders under Section 319 of the CrPC. The State which had moved the High Court for cancellation of the bail which was granted to the second respondent as an incident of the suspension of sentence on 3 February 2016, has failed to apprehend the second respondent who continues to evade arrest.
A warrant of arrest was issued against the second respondent. Mr Saurabh Mishra, Additional Advocate General appearing for the State, states that a proclamation has been issued against the second respondent under Section 82 of the CrPC on 4 March 2021 with an award of Rs 10,000. Yet the second respondent continues to evade arrest. The rule of law must be preserved.””
As a corollary, the Bench then envisages in para 12 that, “In this backdrop, the Director General of Police (“DGP”) of Madhya Pradesh was directed “to immediately ensure the arrest of the second respondent and report compliance by filing a personal affidavit in this Court”.
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The DGP was also directed to enquire into the allegations levelled by the second respondent against the SP by the ASJ in his order dated 8 February 2021.”
Quite significantly, the Bench then enunciates in para 37 that, “The present case was a fit case for the cancellation of bail by the High Court. The narration in the earlier part of the judgment highlights the following facets:
(i) The registration of FIR 143 of 2019 implicating the second respondent in the murder of the appellant’s father during the period when the sentence of the second respondent was suspended after his conviction of a prior offence under Section 302.
(ii) The criminal antecedents of the second respondent;
(iii) The strong likelihood of the second respondent using his political clout to prevent a fair investigation of FIR 143 of 2019;
(iv) The truth in the apprehensions of the appellant having become evident by the abject failure of the police to properly investigate the FIR lodged against the second respondent on the allegation that he had committed the murder of the appellant’s father on 15 March 2019 after his sentence was suspended by the High Court;
(v) The submission of a closure report by the police against the second respondent absolving him;
(vi) The order of the ASJ dated 8 January 2021 summoning the second respondent under Section 319 of the CrPC;
(vii) The second respondent having evaded arrest despite the issuance of a warrant of arrest and a proclamation;
(viii) The failure of the law enforcement authorities to effectuate the arrest of the second respondent in spite of the order of this Court dated 12 March 2021;
(ix) The peremptory directions issued by this Court on 26 March 2021 requiring the DGP to take necessary steps for compliance with the previous order failing which the Court would be constrained to take coercive steps in accordance with law;
(x) The eventual arrest of the second respondent on 28 March 2021 ostensibly from a bus stand;
(xi) The apprehension expressed by the ASJ in his order dated 8 February 2021 that he was being targeted at the behest of a politically influential accused; and
(xii) The provision of security to the second respondent by the State government at the behest of his spouse who is an MLA despite a prior conviction under Section 302 of the IPC.”
Quite damningly, the Bench then minced no words to state it upfront in para 38 that, “The High Court mis-applied itself to the legal principles which must govern such a case. The serious error by the High Court in its impugned order can be considered from two perspectives. First, the High Court by simply disposing of the IAs seeking cancellation of bail ignored material considerations which ought to have weighed in the decision. Some of the events which we have narrated above have undoubtedly transpired after the order of the High Court. However, taking the position as it stood when the High Court considered the issue, a clear case for cancellation of bail was established. The second aspect which is also of significance is the impact of the order of the High Court. The High Court was apprised of the fact that FIR No 143 of 2019 had been lodged against the second respondent. The investigation into the FIR had to proceed according to law. Instead, the High Court gave a period of ninety days to the police to enquire into the complaint of the second respondent that he was being targeted and allowed the police to thereafter proceed in accordance with law. This order had the effect of obstructing a fair investigation into the FIR at the behest of the accused despite the nature and gravity of the allegations against him. The events which have transpired since go to emphasize the fact that the High Court was in grievous error in passing its directions which were misused to defeat the investigation. The police submitted a closure report absolving the second respondent. Thereafter, despite the order under section 319, the second respondent evaded arrested in contravention of the warrant of arrest which was issued by the ASJ. The facts which have been narrated in the earlier part of this judgment indicate that the police have been complicit in shielding the second respondent. The criminal antecedents of the second respondent and the prior conviction on a charge of murder have been adverted to earlier. The second respondent, whose spouse is an MLA was provided security by the State. The DGP was sanguine in informing this court that the second respondent could not be arrested despite the directions issued by this Court. It was only after this Court issued a peremptory direction indicating recourse to the coercive arm of law that the second respondent was arrested, ostensibly from a bus-stand. The material on the record indicates that an effort has been made to shield the accused from the administration of criminal justice. The apprehensions expressed by the ASJ in his order dated 8 February 2021 of the machinations of a highly influential accused evading the process of law are amply borne out by the facts which have been revealed before this Court. There is no reasonable basis to doubt the anguish and concern of a judicial officer. That the state did not oppose the application under section 319 is a feeble attempt to justify the inaction of the police. Unfortunately, the High Court failed in its duty to ensure that the sanctity of the criminal justice process is preserved. This court has had to step in to ensure that the rule of law is preserved.”
As a fallout, the Bench then holds in para 39 that, “We accordingly order and direct that the order of the High Court dated 23 July 2019 shall stand set aside. IA Nos 6837 and 5781 of 2019 shall in the circumstances stand allowed. The bail granted to the second respondent shall stand cancelled. We also direct that the second respondent shall be moved under the directions of the DGP to another jail in Madhya Pradesh to ensure that the fair course of the criminal proceedings is not deflected.”
Most significantly, the Bench then without mincing any words states what forms the cornerstone of this brilliant judgment in para 40 that, “During the course of this proceeding, an enquiry was directed to be made into the apprehensions expressed by the ASJ in his order dated 8 February 2021. An independent and impartial judiciary is the cornerstone of democracy. Judicial independence of the district judiciary is cardinal to the integrity of the entire system. The courts comprised in the district judiciary are the first point of interface with citizens. If the faith of the citizen in the administration of justice has to be preserved, it is to the district judiciary that attention must be focused as well as the ‘higher’ judiciary. Trial judges work amidst appalling conditions – a lack of infrastructure, inadequate protection, examples of judges being made targets when they stand up for what is right and sadly, a subservience to the administration of the High Court for transfers and postings which renders them vulnerable. The colonial mindset which pervades the treatment meted out to the district judiciary must change. It is only then that civil liberties for every stakeholder – be it the accused, the victims or civil society – will be meaningfully preserved in our trial courts which are the first line of defense for those who have been wronged.”
Simply stated, the Bench then underscores in para 41 that, “The functioning of the judiciary as an independent institution is rooted in the concept of separation of powers. Individual judges must be able to adjudicate disputes in accordance with the law, unhindered by any other factors. Thus, “for that reason independence of judiciary is the independence of each and every judge”. The independence of individual judges also encompasses that they are independent of their judicial superiors and colleagues. (M.P. Singh, Securing the Independence of the Judiciary – The Indian Experience, Indiana International and Comparative Law Review 10, No. 2 (2000): 245-292). This Court in Madras Bar Association v. Union of India & Anr. 2021 SCC OnLine SC 463 speaking through Justice L. Nageswara Rao has observed:
“29. Impartiality, independence, fairness and reasonableness in decision-making are the hallmarks of the judiciary. If “impartiality” is the soul of the judiciary, “independence” is the lifeblood of the judiciary. Without independence, impartiality cannot thrive. Independence is not the freedom for Judges to do what they like. It is the independence of judicial thought. It is the freedom from interference and pressures which provides the judicial atmosphere where he can work with absolute commitment to the cause of justice and constitutional values. It is also the discipline in life, habits and outlook that enables a Judge to be impartial. Its existence depends however not only on philosophical, ethical or moral aspects but also upon several mundane things—security in tenure, freedom from ordinary monetary worries, freedom from influences and pressures within (from others in the judiciary) and without (from the executive). The independence of an individual Judge, that is, decisional independence; and independence of the judiciary as an institution or an organ of the State, that is, functional independence are the broad concepts of the principle of independence of the judiciary/ tribunal.””
Furthermore, the Bench then makes it clear in para 42 that, “Our Constitution specifically envisages the independence of the district judiciary. This is implicit in Article 50 of the Constitution which provides that the State must take steps to separate the judiciary from the executive in the public services of the State. The district judiciary operates under the administrative supervision of the High Court which must secure and enhance its independence from external influence and control. This compartmentalization of the judiciary and executive should not be breached by interfering with the personal decision-making of the judges and the conduct of court proceedings under them.”
Simply put, the Bench then also makes it clear in para 43 that, “There is no gainsaying that the judiciary should be immune from political pressures and considerations. A judiciary that is susceptible to such pressures allows politicians to operate with impunity and incentivizes criminality to flourish in the political apparatus of the State.”
Quite strikingly, the Bench then thundered in para 44 without mincing any words that, “India cannot have two parallel legal systems, “one for the rich and the resourceful and those who wield political power and influence and the other for the small men without resources and capabilities to obtain justice or fight injustice.” The existence of a dual legal system will only chip away the legitimacy of the law. The duty also falls on the State machinery to be committed to the rule of law and demonstrate its ability and willingness to follow the rules it itself makes, for its actions to not transgress into the domain of “governmental lawlessness”. (Upendra Baxi, The Crisis of Legitimation of Law in The Crisis of the Indian Legal System: Alternative Developments in Law (Vikas Publishing House, 1982).”
In the same vein, the Bench then also added a word of caution in para 45 that, “At the same time, we believe that judges, while being undeterred in their commitment to follow the law and do justice, should be wary of launching into a diatribe against the State authorities without due care and reflection.”
Truly speaking, the Bench then held in para 46 that, “The apprehensions expressed by the ASJ should be duly enquired into by the High Court of Madhya Pradesh on its administrative side so that if they are found to be true, necessary action should be taken in order to secure the fair administration of justice. We have already taken note of the fact that the SDOP Hata had submitted a complaint to the Registrar General. The complaint by the SDOP as well the the order of the ASJ dated 8 February 2021 shall be placed before the Chief justice of the Madhya Pradesh High Court on the administrative side by the Registrar General within two weeks. The Chief Justice of the High Court of Madhya Pradesh is requested to cause an enquiry to be made on the administrative side so that an appropriate decision in that regard is taken. Having regard to this direction we are not expressing any views on the report which has been submitted by the ADGP and STF, Bhopal. The enquiry as directed above should be concluded expeditiously and preferably within a period of one month from the date of the receipt of a certified copy of this judgment. A copy of this order shall be communicated by the Registrar (Judicial) of this court to the Registrar General of the High Court for compliance. The appeals shall stand disposed of in the above terms.”
No doubt, this brief, brilliant, balanced and bold judgment by a two Judge Bench of the Apex Court comprising of Justice Dr DY Chandrachud and Justice Hrishikesh Roy makes it amply clear that trial Court Judges work amidst appalling conditions. It also reiterated that the colonial mindset towards district judiciary must change. Only then can our judicial system function properly. This alone explains why Shri PN Bhagwati who is our former CJI and longest serving Judge of the Supreme Court for 13 years had once famously said that, “When finances are needed for the purpose of improving the judicial system at the lower levels, there is reluctance to make such finances available. We do not seem to realize that it is subordinate courts which form the basis of the pyramid of justice and unless the base is strengthened, the pyramid is bound to crumble. It is often forgotten that the contact of the common man with the justice system occurs only at the level of the subordinate courts, he has rarely occasion to go to the High Court and therefore, if we want to inspire confidence in the common man that he can get justice, it is imperative to strengthen the subordinate judiciary.” All the High Court Judges including the Chief Justices must always remember what the legendary former CJI Shri PN Bhagwati said as stated hereinabove! If this is done, the district judiciary will always get its due and the base will get stronger and stronger which will be in the overall interests of the judiciary itself of which the High Court too forms a part!
Sanjeev Sirohi, Advocate,