The appellant in this appeal is a retired Additional Sessions Judge of the State of Orissa. In this appeal by Special Leave, he seeks to challenge the judgment and order dated 20.10.2002, rendered by a learned Judge of the Orissa High Court in suo-moto Criminal Revision No. 367 of 1997, arising out of Session Trial Case No. 187/55 of 1995, to the extent the learned Judge has made certain observations against the appellant who had decided that session case. These remarks were made on account of the appellant not framing the charge under Section 302 of the Indian Penal Code (IPC) against the accused in that case, when the material on record warranted framing of that charge.. That apart, all that the impugned order in Revision has done is to suggest to the High Court Administration, that if the appellant is not yet confirmed, his probation should wait and if he has already been confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court has done on the administrative side is to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision is a suggestion to the Administration of the High Court. It is not a case of making any adverse or disparaging remarks as in the three cases cited on behalf of the appellant. In fact, in the first judgment cited by the appellant, in the case of V.K. Jain (supra), the observation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the learned Single Judge), and having noted the serious deficiencies, the High Court has denied the selection grade to the appellant. Interestingly enough, in this Appeal by Special leave, the appellant is not directly seeking to challenge the denial of selection grade. He is challenging the observations in the impugned order which led to denial of the selection grade. In our view, the impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted.
25. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years. Therefore, the Revisional Court did not deem it fit to reopen it. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the learned Revisional Judge making a suggestion to the High Court to scrutinize appellant's record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, the thorough checking of his service record was necessary which is, what is directed in the impugned order.
Supreme Court of India
R.S. Mishra vs State Of Orissa & Ors on 1 February, 2011
Bench: J.M. Panchal, H.L. Gokhale
REPORTABLE
CRIMINAL APPEAL NO. 232 OF 2005
Citation;AIR2011SC1103, 2011CriLJ1654,(2011)2SCC689,
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