M N DIVAKARAN Vs. STATE

JUDGEMENT

(1.) This is one of several petitions filed under S.407 of the Code of Criminal Procedure for transfer of cases from the file of the Court of Additional Chief Judicial Magistrate, Trivandrum, constituted as a special court for the trial of mark list cases. Along with his son the petitioner was prosecuted in C.C. 9/84 for offences punishable under S.120B, 463, 466, 467, 468, 471 and 420 of the Indian Penal Code read with S.34 thereof. Shri. D. Vijayaraghavan is the Judicial Officer presiding over that court. He has disposed of some of the cases, out of which many ended in conviction and some in acquittal or discharge. The necessity for constitution of such a court arose as a result of unearthing several kinds of frauds as a result of which many rich and influential persons and their children were suspected to have boosted the marks secured in university examinations for the purpose of securing admission to professional and other courses. These frauds were brought to limelight consequent on a decision of this Court. After constitution of the Special Court, considering the gravity of the matters to be decided and the type of persons to be dealt with, this Court has taken particular care to select a proper person to man the court.

(2.) It is in the wake of these backgrounds that many petitions were filed before this Court and the Supreme Court to transfer cases from the file of the said court. All the earlier petitions were dismissed either by this Court or the Supreme Court and Special Leave Petitions filed before the Supreme Court against some of these orders were also dismissed. This is the only petition of that nature now on the file of this Court and it came before us by a reference by the Single Judge before whom it came. The main grounds relied on by the petitioner to get the case transferred are: (1) The magistrate is haying a pre-conceived notion gathered from the evidence tendered before him in identical cases and this has resulted in bias, (2) When the magistrate was moved for adjournment for moving transfer petition by the junior counsel he expressed openly from the Bench that bigger persons tried and failed and the junior counsel is only a big zero, (3) The magistrate is inconveniently interfering with cross examination of witnesses, not recording some of the questions and answers and he is also giving clues to the witnesses to answer questions, and (4) Tabulation sheet is the basic record produced in all the cases. In spite of different attacks from different angles in many cases by the defence the tabulation sheet was accepted in many cases and this approach is likely to prejudice his actions in other cases also.

(3.) Among the grounds taken the major one is ground number one. Before dealing with that ground, we shall consider the other grounds. In this connection it is pertinent to point out that we have called for and obtained the remarks of the magistrate on the specific allegations contained in the petition. One of the allegations is that when a petition was filed on 28-12-1985 expressing the intention to move a transfer petition the magistrate remarked "Nobody can do anything against me and several greater persons tried and failed. You are only a big zero." The magistrate has denied this allegation. From the remarks of the magistrate, it is seen that from 10-6-1985 onwards he granted adjournments due to the inconvenience of the senior counsel who appeared for the petitioner. Finally when he refused adjournment on 28-12-1985 the junior counsel who was present in court moved for adjournment on the ground that a transfer petition is going to be moved. After examining the witnesses present, the magistrate adjourned the case, after a month, to 28-1-1986 giving sufficient time to move for transfer. In his remarks, the magistrate says "when the stay petition was moved I read it over in open court so that the prosecutor may also hear the allegations. Becoming conscious of my 'being' and my existence after a while due to the impact of the wild allegations so quoted in para 8 what I said was this: "No one can defeat truth in whatever ordeal it may be put. Any one whether great or small who makes utter falsehood against me is only a magnificent zero since I have faith in God". We have no reason to disbelieve the version of the magistrate in this respect. It was his reaction from the Bench when such allegations came against him after he adjourned the case for more than seven months to suit the convenience of the senior counsel for the petitioner. We do not think that the magistrate was casting any aspersions on the junior counsel when he made the above remarks. He was only showing his resentment against what he found to be falsehood. The reference was not to any specific person. But while disagreeing with the petitioner in his allegation that the conduct of the magistrate is indicative of bias, we wish to emphasise certain aspect for guidance of judicial officers. By our words, deeds or pronouncements we should never give room for any litigant or the public to suspect that there is the least possibility of prejudice or bias, conscious or unconscious. Considerations of sobriety, moderation and reserve will have to be our guideline not only in judicial pronouncements but also in our utterances and expressions. Otherwise we are liable to be misunderstood. Even that misunderstanding, whether it is based on factual foundation or not will undermine the judicial process. Justice should not only be done but it should also appear to others also that justice is being done. A situation to the contrary may cut at the root of fair trial. Judicial pronouncements must excel in the matter of simplicity and clarity. Though we do not mean to say that exhibition of literary talents is taboo for a judicial pronouncement, we are of opinion that greater stress should be on simplicity and clarity. Judgments and orders should not turn out to be literary works from which different interpretations regarding reasonings or conclusions are possible. Intention of the Judge regarding his reasonings or conclusions should never be capable of different interpretations requiring a commentary as to what exactly was intended. Use of literary or metaphoric language will have to be avoided whenever and wherever it is likely to give room for different interpretations. By a reading of the judgment or order even an ordinary man must be able to understand without ambiguity what the judicial officer meant and said. Offensive language will have to be avoided to the extent possible and necessary. Expressions of adverse opinions or comments likely to affect parties, witnesses or strangers will have to be limited to the barest minimum required for the decision of the case and confined to the evidence and circumstances. Expressions of opinions from the Bench must also be limited to cases where it is absolutely necessary and as far as possible it should be couched in such language which is not offensive. Sarcastic comments are likely to be misunderstood and it should be avoided. Particularly when a judge or magistrate has to deal with several identical matters he will have to mould bis conduct and expressions extra cautiously in order to avoid any fear or bias whether reasonable or unreasonable. In this case even the magistrate in his remark says: "I confess that even this I should not have said". But he added that he had compelling reasons and in his remarks he proceeded to discuss what the compelling reasons are. We are not proceeding to mention the compelling reasons given by the magistrate. Suffice it to say that a narration of those "compelling reasons" added unnecessary volume to his remarks. There was no reason or necessity for the magistrate to read out the allegations in the stay petition and pass oral comments on it from the Bench. These are also matters which will have to be avoided as far as possible. Grounds for transfer alleged in the stay petition moved before the magistrate were allegations intended to be taken up before the High Court and it was not necessary for the magistrate to offer his oral comments from the Bench. Any how whatever be the indiscretion played by the magistrate, we do not feel that it involves any reasonable apprehension of bias so far as the petitioner is concerned.