IMPORTANT POINT
In the course of inspection, High Court Judge can not pass any order on interim application such as bail application, transfer application or application for interim injunction howsoever justified they may be.

Headnote:(i) Constitution of India—Article 227—Width and amplitude of power of superintendence over subordinate courts—Power vested with High Court is both of administrative and judicial nature and could be exercised suo motu also—Power, however, can not imply that High Court can influence the subordinate judiciary to pass any order or Judgment in a particular manner—Appellant was arrested in a case u/s 469/467, 468/218-120-B I.P.C. and under Prevention of Corruption Act—His bail application was pending before Sessions Court—Meanwhile Administrative Judge of High Court came for annual inspection and visited jail—Appellant moved application for bail during course of inspection and Judge passed order directing Sessions Judge to look into and release appellant on bail observing that appellant was in jail for 7 months—Sessions Judge granted bail to appellant—Application by defacto complainant for cancellation of bail—Application was placed before Administrative Judge who set aside the bail order holding that Sessions Judge had not discussed the matter on merits—Appeal—In the course of inspection High Court Judge could not pass any order on interim application and was not supposed to perform any judicial work—Proper course was to send the application to concerned Court to pass appropriate order.
       Held : The power of superintendence conferred on the High Court under Article 227 over all the courts and tribunals throughout the territory of the State is both of administrative and judicial nature and it could be exercised suo motu also. However, such power of superintendence does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. The extraordinary power under Article 227 can only be used by the High Courts to ensure that the subordinate courts function within the limits of their authority. The High Court cannot interfere with the judicial functions of a subordinate Judge.(Para 10)
       So, even while invoking the provisions of Article 227 of the Constitution, it is provided that the High Court would exercise such powers most sparingly and only in appropriate cases in order to keep the subordinate courts within the bounds of their authority. The power of superintendence exercised over the subordinate courts and tribunals does not imply that the High Court can intervene in the judicial functions of the lower judiciary. The independence of the subordinate courts in the discharge of their judicial functions is of paramount importance, just as the independence of the superior courts in the discharge of their judicial functions. It is the members of the subordinate judiciary who directly interact with the parties in the course of proceedings of the case and therefore, it is no less important that their independence should be protected effectively to the satisfaction of the litigants. The independence of the judiciary has been considered as a part of the basic structure of the Constitution and such independence is postulated not only from the Executive, but also from all other sources of pressure.(Para 14)
       In the course of inspection, a High Court Judge cannot pass any order on interim applications, such as bail petitions or transfer applications or applications for interim injunction, howsoever justified they may be. Orders on bail applications are passed under the provisions of the Code of Criminal Procedure or under various other enactments, which provide for grant of bail and such orders are passed as part of the judicial work. The Inspecting Judge is not supposed to pass any judicial order in individual cases in the course of inspection. Of course, he can give administrative directions to the Presiding Officer or to any of the subordinate staff, if such directions are pertinent in the context of administration of justice. Except giving general directions regarding any matter concerning administration of justice, any interference in the judicial functions of the Presiding Officer would amount to interference with the independence of the subordinate judiciary. (Para 16)
       Therefore, even if any application for bail is received by the Inspecting Judge, the proper course is to send the application to the concerned court to pass appropriate orders. When the Inspecting Judge visits the jail, it is quite likely that so many inmates of the jail may file petitions before the concerned Judge. It is the duty of the Judge to see whether there is any merit in any of these petitions. If any application for bail is received, he can very well send it to the concerned court without making any comments on the merits of the case. On the contrary, if the learned Inspecting Judge passes any order in such matter, he would only be usurping the powers of the courts authorized to pass such orders.(Para 19)
       The Inspecting Judges would be at liberty to receive complaints or petitions in the course of inspection so as to bring the same to the notice of the appropriate court or to the Registry of the High Court, so that it may, in turn, be brought to the notice of the Chief Justice who may place it before an appropriate forum for passing orders. (Para 20)
       (ii) Constitution of India—Article 235—High Court power of superintendence and control over subordinate courts—Powers of control do not extend to interfere with judicial functions of subordinate courts.
       Held : Article 235 of the Constitution gives power to the High Court to exercise control over the subordinate courts. This power has been specifically described in Article 235 in a comprehensive sense so as to include the powers of general superintendence over the working of the subordinate courts; disciplinary control over the Presiding Judges of the subordinate courts which includes power to make inquiry; and impose punishments other than dismissal, removal or reduction in rank subject, of course, to the rules of services and Article 311(2) of the Constitution. This power also would include the power to order disciplinary inquiry, transfers, promotions of members of subordinate judiciary and confirmation of officers etc. It also includes the power to recall officers of the subordinate courts holding ex cadre posts or to send officers on deputation to other administrative posts or award selection grade or pass orders on any such matters connected with service. The powers of control to be exercised under Article 235 of the Constitution do not extend to interfering with the judicial functions of the subordinate courts. By virtue of the power under Article 235 the High Court cannot direct the presiding officer to pass a judicial order in a particular manner as that would certainly amount to interfering with the independence of the subordinate judiciary.(Para 15)

JUDGMENT

K.G. Balakrishnan, J.—Leave granted.

2. A case was registered by P.S. Sirhind against seven persons, including the appellant under Sections 469/467, 468/218-120B of IPC and also under the provisions of the Prevention of Corruption Act. The appellant was arrested and remanded to judicial custody and the final report was filed by the police. It appears that the appellant moved an application for bail, but the same was rejected. The appellant moved another bail application on 24.4.2003 before the Sessions Judge, Fatehpur Sahib, which was fixed for hearing on 5.5.2003. Meanwhile, on 29.4.2003 the Administrative Judge of the High Court of Punjab & Haryana came for annual inspection to the District & Sessions Court, Fatehpur Sahib, and the Deputy Commissioner, S.S.P. and other police officers were present. The Honble Judge visited the Jail at Nabha as part of the inspection programme. The appellant moved an application for bail during the course of inspection and the learned Judge noticed the police officers as representative of the prosecution, and as they had no objection to the granting of bail to the appellant, the learned Judge passed the following Order:

"The applicant is facing trial for commission of offences under Sections 409, 447, 468, 218, 120-B IPC and also under the provisions of Prevention of Corruption Act. His co-accused similarly situated has since been enlarged on bail. Applicant is in jail for the last seven months. Sessions Judge asked to look into his application and enlarge him on bail as his trial is likely to take some time before it is concluded" (emphasis supplied)

3. Thereafter, the bail application of the appellant came up for hearing before the Sessions Judge, Fatehpur Sahib, who, without making a reference to the directions contained in the order of the Administrative Judge, dismissed the application. But, on the next day, i.e. 6.5.2003, when his attention was drawn to the order of the Administrative Judge, the Sessions Judge granted bail to the appellant. The appellant also moved an application for the release of his earth-moving machine, which was seized by the police during investigations and the same was released to the appellant on furnishing a bond in the sum of Rs. 20 lacs.

4. On 13.6.2003, one Usha Rani made a complaint to the Chief Justice of the Punjab & Haryana High Court, alleging mala fides on the part of the Sessions Judge, Fatehpur Saheb, in granting bail to the appellant. The Chief Justice called for the proceedings and directed that the entire matter be placed before the very same Administrative Judge on the judicial side. Thereupon, notice was issued to the appellant. The de facto complainant also entered appearance. She reiterated her allegation and sought for cancellation of bail granted to the appellant. The learned Administrative Judge held that while passing the order of bail on 6.5.2003, the Sessions Judge had not discussed the matter on merit and therefore the order dated 6.5.2003 was set aside. Aggrieved by the same the appellant has preferred the instant appeal by way of special leave.

5. When the matter came before this Court on 16.2.2004, the following Order was passed:-

"Application for exemption from surrendering is dismissed.

At the request of learned senior counsel for the petitioner this special leave petition is adjourned by four weeks.

The above special leave petition has been adjourned even at the stage of calling for orders on admission. In the meantime while going through the order under challenge, we find that observations have been made to the effect that there is a practice of passing orders by an Administration Judge on the spot at the time of inspection and the handing over of petitions for bail etc. at that time. The Registrar of the Punjab & Haryana High Court at Chandigarh, by taking instructions/directions from the Chief Justice will send a detailed report to this Registry to be placed when the matter is taken up as to for how long this ty

Click Here to Read the rest of this document

2006 Supreme(SC) 943

IMPORTANT POINTIn the course of inspection, High Court Judge can not pass any order on interim application such as bail application, transfer application or application for interim injunction howsoever justified they may be.

Cases Referred (5)

IMPORTANT POINT
In the course of inspection, High Court Judge can not pass any order on interim application such as bail application, transfer application or application for interim injunction howsoever justified they may be.