Vijay Kumar Agarwal v. Ms Kadambari Awasthi

17. My reasons are that the learned CMM was acting in discharge of her official duty and passed an erroneous order. The orders are passed by courts of law keeping in view the facts of the case, submissions by the parties, the lawand binding precedents There may be errors by judicial officers/judges in appreciating the facts and the judicial precedentsbut the same would not result in initiation of contempt proceedings. The remedy available to the petitioner is to challenge the order in accordance with law and/or move an application seeking recall of the NBW‟s.

18. The Hon‟ble Supreme Court in Krishna Prasad Verma v. State of Bihar, (2019) 10 SCC 640, observed that action should not be taken against judicial officers only on the ground that allegedly wrong orders are passed, since ensuring independence and fearlessness of the district judiciary is paramount.The operative portion reads as under:- “In a country, which follows the Rule of Law, independence of the judiciary is sacrosanct. There can be no Rule of Law, there can be no democracy unless there is a strong, fearless and independent judiciary. This independence and fearlessness is not only expected at the level of the Superior Courts but also from the District Judiciary.

2. Most litigants only come in contact with the District Judiciary. They cannot afford to come to the High Court or the Supreme Court. For them the last word is the word of the Magistrate or at best the Sessions Judge. Therefore, it is equally important, if not more important, that the judiciary at the District level and at the Taluka level is absolutely honest, fearless and free from any pressure and is able to decide cases only on the basis of the facts on file, uninfluenced by any pressure from any quarters whatsoever.

3. Article 235 of the Constitution of India vests control of the subordinate courts upon the High Courts. The High Courts exercise disciplinary powers over the subordinate courts. In a series of judgments, this Court has held that the High Courts are also the protectors and guardians of the Judges falling within their administrative control. Time and time again, this Court has laid down the criteria on which actions should be taken against judicial officers. Repeatedly, this Court has cautioned the High Courts that action should not be taken against judicial officers only because wrong orders are passed. To err is human and not one of us, who has held judicial office, can claim that we have never passed a wrong order. ….

16. We would, however, like to make it clear that we are in no manner indicating that if a judicial officer passes a wrong order, then no action is to be taken. In case a judicial officer passes orders which are against settled legal norms but there is no allegation of any extraneous influences leading to the passing of such orders then the appropriate action which the High Court should take is to record such material on the administrative side and place it on the service record of the judicial officer concerned. These matters can be taken into consideration while considering career progression of the judicial officer concerned. Once note of the wrong order is taken and they form part of the service record these can be taken into consideration to deny selection grade, promotion, etc., and in case there is a continuous flow of wrong or illegal orders then the proper action would be to compulsorily retire the judicial officer, in accordance with the Rules. We again reiterate that unless there are clear-cut allegations of misconduct, extraneous influences, gratification of any kind, etc., disciplinary proceedings should not be initiated merely on the basis that a wrong order has been passed by the judicial officer or merely on the ground that the judicial order is incorrect.”

19. In addition, I would like to rely upon Prithawi Nath Ram v. State of Jharkhand, (2004) 7 SCC 261, the operative portion reads as under:-

20. In view of the aforesaid two judgments, I am of the opinion that it would be wrong and inappropriate to initiate contempt proceedings against a judicial officer for passing anerroneous order. In the entire petition, there are no allegations of extraneous considerations or illegal gratificationagainst the learned CMM.Even though the order passed maybe erroneous, the contempt of court proceedings are only to be used sparingly and in rarest of rare cases. The error of judgment and non-appreciation of law by the learned CMM does not fall within the said category of such cases so as to persuade me to initiate contempt proceedings against a judicial officer.

21. The next question for the consideration is whether this court in contempt proceedings can quash the NBWs issued vide the order dated 03.10.2023.

22. The petitioner has an alternative remedy seeking quashing of the NBWs issued vide order dated 03.10.2023, he can challenge the order dated 03.10.2023 in accordance with law or move an application seeking recall of the NBWs.

23. Onceequally efficacious remedies are available to the petitioner, I am of the view that it would be inappropriate for this Court to quash the NBWs issued on 03.10.2023 in these contempt proceedings.This court would be enlarging the scope of contempt proceedings in case such orders are passed.

24. Having noted the above, this Court under Article 215 of the Constitution of India acts as a Court of record and has inherent powers.

25. Since after 03.10.2023, the next date fixed in the matter before the learned CMM was 05.12.2023 but the order is not available on the website of District Court, this court in exercise of the inherent powers under Article 215 of the Constitution of India and in view of the aforestated factual position directs that in case NBWs against the accused have not been cancelled, the NBWs issued against the petitioner and notice u/s 446 Cr.PC issued to his surety shall remain stayed for a period of 8 weeks to enable the petitioner to challenge the issuance of NBWs and/or to move an application seeking recall of the NBWs.

26. With these observations, the contempt petition is disposed of in the above terms.

JASMEET SINGH, J JANUARY 5th, 2024