In Ravi Yashwant Bhoir v. District Collector, Raigad &
Ors., AIR 2012 SC 1339, while dealing with the issue, this Court held:
"37..... Legal malice" or "malice in law" means
something done without lawful excuse. It is a deliberate
act in disregard to the rights of others. It is an act which
is taken with an oblique or indirect object. It is an act
done wrongfully and wilfully without reasonable or
probable cause, and not necessarily an act done from ill-
feeling and spite. Mala fide exercise of power does not
imply any moral turpitude. It means exercise of statutory
power for "purposes foreign to those for which it is in
law intended." It means conscious violation of the law to
the prejudice of another, a depraved inclination on the
part of the authority to disregard the rights of others,
where intent is manifested by its injurious acts. Passing
an order for unauthorized purpose constitutes malice in
law.”
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 154 OF 2013
Selvi J. Jayalalithaa & Ors.
...Petitioners
Versus
State of Karnataka & Ors.
...Respondents
WITH
WRIT PETITION (CRIMINAL) NO. 166 OF 2013
Citation;(2014) 2 SCC 401
Dr. B.S. Chauhan, J.
1.
The petitioners have challenged the order dated 10.9.2013
passed by the Government of Karnataka asking Shri G. Bhavani Singh
– respondent no.4, Special Public Prosecutor (hereinafter referred to as
‘SPP’) in a pending prosecution against the petitioners not to appear in
the said matter; the communication dated 14.9.2013 passed by the
Chief Justice of High Court of Karnataka at Bangalore by which the
Page 1
Chief Justice has approved the removal of Shri G. Bhavani Singh as
SPP, as well as the consequential order dated 16.9.2013 issued by the
State Government removing the respondent no.4 from the post of SPP.
2.
A prosecution was launched against the petitioners for having
assets disproportionate to their known income in the year 1996-1997
in the State of Tamil Nadu. Thiru. K. Anbazhagan (respondent no. 5)
is a political rival of the petitioner no.1, who is and has been the Chief
Minister of Tamil Nadu on a number of occasions. The petitioners
approached this Court on 18.11.2003 for transferring the petitioners’
trial to the neighbouring State of Karnataka in the interest of justice, on
the ground that a fair trial was not possible in the State of Tamil Nadu.
While transferring the matters to the State of Karnataka, this Court for
appointment of SPP issued the following directions:
“The State of Karnataka in consultation with the Chief
Justice of High Court of Karnataka shall appoint a
senior lawyer having experience in criminal trials as
public prosecutor to conduct these cases. The public
prosecutor so appointed shall be entitled to assistance of
another lawyer of his choice. The fees and all other
expenses of the Public Prosecutor and the Assistant shall
be paid by the State of Karnataka who will thereafter be
entitled to get the same reimbursed from the State of
Tamil Nadu.”
(Emphasis added)
3.
On
19.2.2005, the
Government
of
Karnataka,
after
consultation with the Chief Justice of the High Court of Karnataka,
appointed Shri B.V. Acharya, a former Advocate General, as SPP to
conduct the prosecution. On 12.8.2012, Shri Acharya expressed his
inability to continue as SPP. The Government of Karnataka accepted
his resignation in January, 2013 and discharged him from the case.
4.
The Government of Karnataka then initiated the process for
appointment of a new SPP and in accordance with the directions of this
Court, submitted names of four Advocates to the High Court for
consideration by the Chief Justice.
5.
The Acting Chief Justice of Karnataka High Court on
29.1.2013 recommended the name of Shri G. Bhavani Singh,
respondent No.4 for appointment though his name was not submitted
by the Government of Karnataka. The Government of Karnataka
accepted the same and issued a Notification appointing Shri G.
Bhavani Singh as SPP.
After issuance of the notification dated
2.2.2013, Shri G. Bhavani Singh started working and 99 defence
witnesses were examined and 384 defence exhibits were marked
between 28.2.2013 and 29.7.2013. The defence commenced arguments
on 2.8.2013 and concluded the same. However, it was on 13.8.2013
that respondent no.5 filed an application under Section 301(2) Cr.P.C.
The learned Special Judge permitted respondent no.5 vide order dated
21.8.2013 to file Memo of Arguments and to render such assistance to
the SPP as he may require. The respondent no.5 filed two applications
on 23.8.2013 before the trial court, one under Section 309 Cr.P.C.
seeking adjournment by 4 weeks and another under Section 311
Cr.P.C. to recall PW.259, the Investigating Officer (whose examination
was over on 24.2.2003) and to examine him as a court witness.
6.
On 26.8.2013, the Government of Karnataka issued a
Notification withdrawing the appointment of respondent no.4 as SPP
without assigning any reason and without consulting the Chief Justice
of Karnataka High Court.
7.
The petitioners, apprehending delay in the trial approached this
Court challenging the removal of respondent no.4 as SPP by filing a
Writ Petition (Criminal) No. 145 of 2013 under Article 32 of the
Constitution of India (hereinafter referred to as the ‘Constitution’).
This Court issued notice to the respondents on 30.8.2013.
On
6.9.2013, Mr. G.E. Vahanvati, learned Attorney General appeared for
the State of Karnataka and informed the court that the Notification
dated 26.8.2013 would be withdrawn with a view to consult the Chief
Justice of the Karnataka High Court. In view thereof, the afore-stated
writ petition was dismissed as having become infructuous.
8.
The State Government withdrew the Notification dated
26.8.2013 vide Notification dated 10.9.2013 and simultaneously, vide
letter of the same date, asked Shri G. Bhavani Singh, respondent no.4
not to appear in the matter before the Special Judge. The petitioners
then filed the present Writ Petition (Criminal) No. 154 of 2013
challenging the said letter written to the respondent no.4 and to direct
the learned Special Judge to conclude the trial. On 13.9.2013, this
Court issued notice returnable in ten days and stayed the operation of
the letter being No. LAW 149 LCE 2012 dated 10.9.2013 passed by
respondent Nos.1-2.
9.
While the afore-stated writ petition was pending in this
Court, the Government of Karnataka consulted the Chief Justice of the
Karnataka High Court for withdrawing the appointment of respondent
no.4 as SPP. The Chief Justice concurred with the view of the State
Government, vide communication dated 14.9.2013 and thus, the
appointment of Shri G. Bhavani Singh stood withdrawn by the
Government of Karnataka vide Notification No.LAW 149 LCE 2012
dated 16.9.2013.
10.
Aggrieved, the petitioners have filed Writ Petition (Criminal)
No.166 of 2013, challenging the said orders dated 14.9.2013 and
16.9.2013.
11.
Both petitions have been heard together.
Shri Shekhar Naphade and Shri U.U. Lalit, learned senior
counsel appearing for the petitioners submitted that it is settled law that
an accused has a right to a speedy trial, as guaranteed under Article 21
of the Constitution;
the order withdrawing the appointment of
respondent no.4 as SPP is a calculated step to protract the trial in view
of impending retirement of the learned Special Judge on 30 th
September, 2013; and any Judge who takes over the matter would
require considerable time to get familiar with the lengthy record as the
recorded evidence oral and documentary run into 34000 pages; the trial
has almost been completed since the entire evidence of the prosecution
and the defence has been recorded and statements of the accused
persons (petitioners) under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) have also been
recorded; the withdrawal of appointment of SPP after six months of his
functioning is motivated by malafides with a view to protract the trial
as there has been a change of government in the State of Karnataka; the
present case being a warrant case under the Prevention of Corruption
Act, 1988 (hereinafter referred to as the ‘Act 1988’), final submissions
of the defence already stood concluded. Eventually, according to the
learned counsel, the scheduled conclusion of the trial has become
impossible and the petitioners face the prospect of remaining under
trial for a long time, which would be to the political advantage of their
rivals in the ensuing elections. In view thereof, this court must quash
the order of withdrawal/revocation of the appointment of respondent
no.4 as SPP and to also further extend the duration of tenure of the
learned Special Judge till the conclusion of this trial.
12.
Shri G.E. Vahanvati, the learned Attorney General submitted
that the act of revoking the appointment is substantially under Section
21 of the General Clauses Act and has been made in the like manner to
the appointment i.e. after consultation with the Chief Justice of the
Karnataka High Court as, contemplated by this Court. The main reason
for revocation of the appointment, according to the learned Attorney
General, was that the appointment itself was not made after due
consultation since the name of Shri G. Bhavani Singh did not find
place in any of the four names submitted by the Government of
Karnataka to the then learned Acting Chief Justice of Karnataka High
Court for appointment as SPP.
In an action contrary to the true
purpose of consultation, the Acting Chief Justice recommended the
name of Shri G. Bhavani Singh on his own, thus preventing any
consultation on the name. Further, in exercise of its extraordinary
power under Article 142 of the Constitution, this court cannot force the
Government of Karnataka to allow the Special Judge to continue in
service after reaching the age of superannuation on 30.9.2013.
Therefore, the petitions lack merit and are liable to be dismissed.
13.
Shri Vikas Singh, learned senior counsel appearing for the
respondent no.5 has submitted that the petitioners themselves have
been adopting dilatory tactics in the trial and it is only in the recent past
that they have become very punctual and had been forcing the learned
Special Judge to proceed with the matter in haste. The trial has been
conducted in an unwarranted manner and an example of the same is
that the arguments of the defence had been entertained by the learned
Special Judge before the arguments of the prosecution.
Mr. G.
Bhavani Singh had been appointed on the suggestion of learned Acting
Chief Justice of the High Court of Karnataka, though his name had not
been there in the panel sent by the State Government. Thus, in the facts
and circumstances of the case, no interference is warranted and
petitions are liable to be dismissed.
14.
We have heard learned counsel for all the parties and perused
the record produced before us by the Karnataka High Court.
15.
The reason put forth by the Government of Karnataka for
removing Shri G. Bhavani Singh as SPP appears to be rather unusual.
It may be true that the name of Shri G. Bhavani Singh was not in the
list of four names submitted by the Government of Karnataka to the
then Acting Chief Justice of the High Court and the name originated
from the Acting Chief Justice, prior to making of appointment of SPP
by the Government of Karnataka; but it is equally true that the
appointment was made by the Government without questioning the
ability or suitability of the incumbent nor the government raised any
issue in respect of the manner/issue of consultation. On the contrary,
upon receiving the recommendation, the Government proceeded to
appoint Shri G. Bhavani Singh by issuing a Notification without any
demur. Apart from this the appointment continued un-objected for
almost seven months.
16.
Even before us, no issue has been raised by the respondents
in respect of the eligibility, suitability or credibility of the respondent
no.4 as a SPP.
In the letter dated 29.1.2013 communicated by the learned
Registrar General of the High Court of Karnataka to the State
Government, the experience of Shri Bhavani Singh has been recited as
under:
“Sri G. Bhavani Singh, who is presently working as
State Public Prosecutor-II has standing experience of 38
years at the Bar exclusively on criminal side, he has
conducted the cases before the Trial Court as a defence
counsel and he has served as a Government Pleader from
1977 for a period of three years in the High Court of
Karnataka and as Additional Public Prosecutor for a
period of 3 years and currently for the past 8 years
working as State Public Prosecutor-II in the High Court
of Karnataka.”
17.
Whenever consultation is mandated by law, it necessarily
involves two authorities; one, on whom a duty is cast to consult and the
other who has the corresponding right(s) to be consulted.
The
grievance that there has been no consultation or insufficient
consultation is normally raised by the authority who has a right to be
consulted, in this case the Chief Justice. It is not legitimate for the
party who has a duty to consult and who has failed in that duty, to
make a grievance that there has been no consultation. This is exactly
what has happened in the present case. If the Government found the
name of Shri G. Bhavani Singh, which was sent by the Acting Chief
Justice, not acceptable on any ground, it was duty bound to refer the
name back to the Acting Chief Justice along with their views and
suggestions, which was not done by them.
On the contrary, they
proceeded to appoint Shri G. Bhavani Singh as SPP without demur,
who had already been a Public Prosecutor for several years. There is
nothing on record to indicate that the Government of Karnataka had
been forced by anyone to make the said appointment. The Government
thus voluntarily acquiesced in the process and is now not entitled to
raise this grievance. The grievance is thus baseless and does not carry
any conviction.
In the facts and circumstances of the case, the judgments
relied upon by the Hon’ble Chief Justice of Karnataka High Court in
his communication, concurring with the suggestion made by the
Government of Karnataka to withdraw the appointment of respondent
no.4 as SPP, particularly in Chandramouleshwar Prasad v. The
Patna High Court & Ors., AIR 1970 SC 370; Union of India v.
Sankalchand Himatlal Sheth & Anr., AIR 1977 SC 2328; State of
Gujarat v. Gujarat Revenue Tribunal Bar Association, AIR 2013
SC 107; and State of Gujarat & Anr. v. Justice R.A. Mehta
(Retired) & Ors., (2013) 3 SCC 1, have no application.
18.
We may record that though some criticism was made of the
letter dated 14.9.2013 of the Chief Justice of Karnataka approving the
revocation of the appointment of Shri G. Bhavani Singh and certain
observations therein, we are not inclined to go into the merits, demerits
or validity of the letter. In the first place, the said letter is not an order
that may affect any of the rights of the petitioners. It is merely an
approval given in the course of consultation for the removal of Shri G.
Bhavani Singh who has not questioned his removal. The petitioners
have challenged the validity of the action of the State Government
removing Shri G. Bhavani Singh on the ground that fundamental rights
under Article 21 for speedy trial have been breached thereby. In the
circumstances, it is not necessary to pronounce on the correctness or
otherwise of the contents of the letter written by Hon’ble the Chief
Justice.
19.
Mr. Vikas Singh, learned senior counsel appearing for
respondent No. 5, referred to the entire proceedings after the case was
transferred to the State of Karnataka and submitted that the prosecution
has been proceeding in a most undesirable manner, particularly, after
the appointment of Shri G. Bhavani Singh as SPP. According to the
learned counsel, the Investigating Officer has been permitted to be
examined as a defence witness and the Special Judge has proceeded to
pass certain orders even in the absence of SPP. These allegations have
been denied as factually incorrect by Mr. Naphade, learned senior
counsel appearing for the petitioners. We are, however, not inclined to
go into all these submissions since they would form a subject of
entirely different enquiry and the allegedly illegal proceedings and
orders if any, can be challenged separately. It was also argued by Mr.
Vikas Singh that the Special Judge has wrongly permitted the defence
to commence their arguments before the arguments of the prosecution.
On the other hand, according to the petitioners, this is entirely
permissible in view of the fact that this is a prosecution under Section
13 of the Act 1988 and being so, any party including the defence is
entitled to begin its submissions on the close of its evidence by virtue
of Section 314 Cr.P.C., which applies to warrant cases. Further, by
virtue of Section 5 of the Act 1988, cases under this Act are liable to be
tried as warrant cases and there is therefore, no illegality in this regard.
The respondents’ contention that the prosecution alone must
begin their arguments is based on Section 234 Cr.P.C., which is not
applicable to the present trial at all. Having regard to the scope of the
present dispute, we do not consider it necessary or appropriate to
decide this question either.
20.
In the instant case, as disclosed during the course of
arguments, there has been a change of the political party in power in
May 2013 and thus, the order of the State Government is alleged to be
politically motivated. In our opinion, though there is an undoubted
power with the Government to withdraw or revoke the appointment
within Section 21 of the General Clauses Act, but that exercise of
power appears to be vitiated in the present case by malafides in law
inasmuch as it is apparent on record that the switch-over of government
in between has resulted in a sudden change of opinion that is abrupt for
no discernable legally sustainable reason. The sharp transitional
decision was an act of clear unwarranted indiscretion actuated by an
intention that does not appear to be founded on good faith.
21.
The record of the case reveals that the learned Special Judge
had started hearing of the present case on 20.11.2012. He had recorded
the statements of the accused in December 2012 and January 2013
under Section 313 Cr.P.C. The learned Judge examined 99 defence
witnesses and 384 defence exhibits were marked before him. The
defence concluded its argument before the learned Special Judge and
SPP commenced the final arguments on 23.8.2013. He was interrupted
abruptly as on 26.8.2013, the SPP was asked not to continue with the
work. The evidence led in the case is very bulky as it runs into 34000
pages. In case a new Judge starts hearing the matter, he is bound to
take a long time to understand the factual and legal niceties involved in
the case. Accordingly, we have no hesitation in holding that the
Notification purporting to revoke the appointment of Shri G. Bhavani
Singh as SPP is liable to be struck down.
22.
In State of Tamil Nadu & Ors. v. K. Shyam Sunder &
Ors., AIR 2011 SC 3470, this Court has observed that the Government
has to rise above the nexus of vested interests and nepotism and
eschew window-dressing. The principles of governance have to be
tested on the touchstone of justice, equity and fair play. A decision may
look legitimate but as a matter of fact, if the reasons are not based on
values but to achieve popular accolade, the decision cannot be allowed
to operate. Therefore, unless it is found that the act done by the
authority earlier in existence is either contrary to the statutory
provisions or unreasonable, or is against public interest, the State
should not change its stand merely because the other political party has
come into power. “Political agenda of an individual or a political party
should not be subversive of rule of law.”
(See also: M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors.,
AIR 1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India &
Anr. etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All
India Manufacturers Organization & Ors., AIR 2006 SC 1846; and
A.P. Dairy Development Corporation Federation v. B. Narasimha
Reddy & Ors., AIR 2011 SC 3298).
23.
In Smt. S.R. Venkataraman v. Union of India & Anr.,
AIR 1979 SC 49, this Court explained the concept of legal malice
observing that malice in its legal sense means malice such as may be
assumed from the doing of a wrongful act intentionally but without just
cause or excuse, or for want of reasonable or probable cause.
24.
In Ravi Yashwant Bhoir v. District Collector, Raigad &
Ors., AIR 2012 SC 1339, while dealing with the issue, this Court held:
"37..... Legal malice" or "malice in law" means
something done without lawful excuse. It is a deliberate
act in disregard to the rights of others. It is an act which
is taken with an oblique or indirect object. It is an act
done wrongfully and wilfully without reasonable or
probable cause, and not necessarily an act done from ill-
feeling and spite. Mala fide exercise of power does not
imply any moral turpitude. It means exercise of statutory
power for "purposes foreign to those for which it is in
law intended." It means conscious violation of the law to
the prejudice of another, a depraved inclination on the
part of the authority to disregard the rights of others,
where intent is manifested by its injurious acts. Passing
an order for unauthorized purpose constitutes malice in
law.”
(See
also:
Kalabharati
Advertising
v.
Hemant
Vimalnath
Narichania & Ors., AIR 2010 SC 3745).
25.
Thus, it is trite law that if discretionary power has been
exercised for an unauthorised purpose, it is generally immaterial
whether its repository was acting in good faith or in bad faith and the
order becomes vulnerable and liable to be set aside.
26.
Fair trial is the main object of criminal procedure and such
fairness should not be hampered or threatened in any manner. Fair trial
entails the interests of the accused, the victim and of the society. Thus,
fair trial must be accorded to every accused in the spirit of the right to
life and personal liberty and the accused must get a free and fair, just
and reasonable trial on the charge imputed in a criminal case. Any
breach or violation of public rights and duties adversely affects the
community as a whole and it becomes harmful to the society in
general. In all circumstances, the courts have a duty to maintain public
confidence in the administration of justice and such duty is to vindicate
and uphold the ‘majesty of the law’ and the courts cannot turn a blind
eye to vexatious or oppressive conduct that occurs in relation to
criminal proceedings.
Denial of a fair trial is as much injustice to the accused as is
to the victim and the society. It necessarily requires a trial before an
impartial judge, a fair prosecutor and an atmosphere of judicial calm.
Since the object of the trial is to mete out justice and to convict the
guilty and protect the innocent, the trial should be a search for the truth
and not a bout over technicalities and must be conducted under such
rules as will protect the innocent and punish the guilty. Justice should
not only be done but should be seem to have been done. Therefore, free
and fair trial is a sine qua non of Article 21 of the Constitution. Right
to get a fair trial is not only a basic fundamental right but a human right
also. Therefore, any hindrance in a fair trial could be violative of
Article 14 of the Constitution.
“No trial can be allowed to prolong indefinitely due to the
lethargy of the prosecuting agency or the State machinery and that is
the raison d’etre in prescribing the time frame” for conclusion of the
trial.
Article 12 of the Universal Declaration of Human Rights
provides for the right to a fair trial what is enshrined in Article 21 of
our Constitution.
Therefore, fair trial is the heart of criminal
jurisprudence and, in a way, an important facet of a democratic polity
and is governed by rule of law. Denial of fair trial is crucifixion of
human rights. (Vide: Smt. Triveniben v. State of Gujarat, AIR 1989
SC 1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701;
Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka
Prasad Agarwal (D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR
2003 SC 2686; K. Anbazhagan v. Supdt. of Police, AIR 2004 SC
524; Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006
SC 1367; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417;
Capt. Amarinder Singh v. Parkash Singh Badal & Ors., (2009) 6
SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of
Delhi), AIR 2012 SC 750; Sudevanand v. State through CBI, (2012) 3
SCC 387; Rattiram & Ors. v. State of M.P., (2012) 4 SCC 516; and
Natasha Singh v. CBI, (2013) 5 SCC 741).
27.
It was lastly contended by Mr. Naphade, learned senior
counsel appearing for the petitioners that this would be a fit case for
exercise of powers under Article 142 of the Constitution for a
direction to the competent authority to extend the tenure of the Special
Judge, who is due to reach the age of retirement on 30 th September,
2013.
28.
The learned Attorney General, however, submitted that this
Court could not exercise its powers under Article 142 of the
Constitution in the present case since such an exercise would be
contrary to laws under which each Judge must retire on reaching the
age of superannuation. In order to fortify his submission, learned
Attorney General placed reliance on the judgment of this court in A.B.
Bhaskara Rao v. Inspector of Police, CBI Vishakapatnam, (2011)
10 SCC 259, wherein this court held that the powers under Article 142
of the Constitution cannot be exercised by this court in contravention
of any statutory provisions, though such powers remain unfettered and
create an independent jurisdiction to pass any order in pubic interest
to do complete justice. However, such exercise of jurisdiction should
not be contrary to any express provision of law.
The powers under Article 142 of the Constitution stand on a
wider footing than ordinary inherent powers of the court to prevent
injustice. The constitutional provision has been couched in a very
wide compass that it prevents “clogging or obstruction of the stream
of justice.” However, such powers are used in consonance with the
statutory provisions.
(See also: Teri Oat Estates (P) Ltd. v. UT, Chandigarh & Ors.,
(2004) 2 SCC 130; Manish Goel v. Rohini Goel, AIR 2010 SC 1099;
and State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537).
29.
We find force in the submissions advanced by the learned
Attorney General that this Court generally should not pass any order
in exercise of its extraordinary power under Article 142 of the
Constitution to do complete justice if such order violates any statutory
provisions. We do not intend to say that it would be illegal to extend
the term of the special judge, but that it is a matter within the
jurisdiction of the State in accordance with the relevant law.
There is yet an uncontroverted legal principle that when the
statute provides for a particular procedure, the authority has to follow
the same and cannot be permitted to act in contravention of the same.
In other words, where a statute requires to do a certain thing in a
certain way, the thing must be done in that way and not contrary to it
at all. Other methods or mode of performance are impliedly and
necessarily forbidden. The aforesaid settled legal proposition is based
on a legal maxim “Expressio unius est exclusio alterius”, meaning
thereby that if a statute provides for a thing to be done in a particular
way, then it has to be done in that manner and in no other manner and
following any other course is not permissible.
In State of Uttar Pradesh v. Singhara Singh & Ors., AIR
1964 SC 358, this court held as under:
“8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D
426 is well recognised and is founded on sound
principle. Its result is that if a statute has conferred a
power to do an act and has laid down the method in
which that power has to be exercised, it necessarily
prohibits the doing of the act in any other manner than
that which has been prescribed. The principle behind the
rule is that if this were not so, the statutory provision
might as well not have been enacted.”
(See also: Accountant General, State of Madhya Pradesh v. S.K.
Dubey & Anr., (2012) 4 SCC 578)
30.
We have examined the scheme of the statutory provisions in
this regard. The Karnataka Civil Services (General Recruitment) Rules,
1977 authorise the State Government to appoint a retired government
servant on contractual basis after meeting certain formalities, for a
specific period as may be necessary. So far as judicial officers are
concerned, their services are governed by the Karnataka Judicial
Services (Recruitment) Rules, 1983 and Rule 3(2) thereof provides the
application of the rules framed under any law or proviso under Article
309 of the Constitution to judicial officers, though subject to the
provisions of Articles 233, 234 and 235 of the Constitution. The Rules
of 1983 stand repealed by the Karnataka Judicial Service (Recruitment)
Rules 2004 (hereinafter referred to as the ‘Rules 2004’) and Rule
11(2) thereof reads as under:
“11(2). All rules regulating the conditions of service of
the members of the State Civil Services made from time
to time under any law or the proviso to Article 309 of the
Constitution of India shall, subject to Articles 233, 234
and 235 be applicable to the Civil Judges (Junior
Division), Civil Judges (Senior Division) and the District
Judges recruited and appointed under these rules.”
Thus, it is evident that the State Government is competent to
appoint the learned Special Judge on contractual basis after his
retirement for the period required to conclude the present trial, though
with the consultation of the High Court as required under Article 235
of the Constitution. Further, in our humble opinion, such a course must
be adopted in the manner prescribed under the Rules 2004 and in view
thereof, the matter requires to be considered by the State Government
with the consultation of the High Court.
31.
Therefore, in view of the aforestated facts, we refer the matter to
the High Court of Karnataka to decide on the administrative side as to
whether, in order to conclude the trial expeditiously as guaranteed
under Article 21 of the Constitution requires the extension of the
services of the learned Special Judge. Considering the urgency of the
matter, we request the High Court of Karnataka to take a decision in
this regard as early as possible.
32.
In view of the above, we are of the considered opinion that the
order of removal of Shri G. Bhavani Singh-respondent
no.4 is a
product of mala fides and the impugned order is not sustainable in the
eyes of law as such the same is hereby quashed.
33.
With the aforesaid observations/directions, the writ petitions
stand disposed of.
.............................................J.
(DR. B.S. CHAUHAN)
........................................J.
(S.A. BOBDE)
New Delhi,
September 30, 2013
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