JUDGE YE NOT LEST YE BE JUDGED

From,

            Harjinder Singh,

            Register (Inspection-II), Appellate Side,

            High Court, Kolkata-70001.

To

            The Registrar (Inspection-II),

            Appellate Side, High Court, Kolkata-700001.

            Dated, Kolkata the 17th day of September, 2010.

 

Subject:- A representation against the Gradation ‘Average’ made in my ACR for

            the year 2007 and the Gradation ‘Average’  i.e. ‘D’ recommended by the

            Hon’ble Justice Girish Chandtra Gupta for the year 2008 which was

            ordered on 10.04.2010 by the Hon’ble Chief Justice to be placed before the

            Administrative Committee for consideration.

Sir,

            With due respect, I humbly submit that I am submitting a representation against the assessment of gradation in respect of my performance for the year 20007 which was unjustly graded “Average” and also in respect of the gradation recommended by His Lordship Justice Girish Candra Gupta for the year 2008 though not yet finalized, has been ordered  by the Hon’ble Chief Justice be placed before the Administrative Committee. Before recommending “Average” for the year 2008, Hon’ble Justice Mr. Gupta called me in His Lordship’s Chamber, showed me the remarks given by His Lordship and later on 09-09-2010 he discussed the remarks given by His Lordship and as such I am aware of the Comments passed by His Lordship on the Judgements delivered by me during the year 2008.

            FIRST: REGARDING THE QUANTITY OF DISPOSAL:

            In this regard, I would like to reproduce some data from my past 5 years records to show that Assessment  based on Unit system often does not reflect the real Hard work put in by a Judicial Officer during a month or year on account of several factors. My thesis is that amongst the WBHJS officers posted as ordinary Regular ADJs are the worst sufferers and the only exception to the Rule are the District Judges and ADJs posted in the Sub-Division and having almost similar filing powers, particularly regarding bail matters, vested in them by virtue of West Bengal Amendment Act (Act 24 of 1988) u/Sec.9(3) of the Cr.P.C. Regular ADJs without such filing powers are the worst sufferers on account of the following reasons:-

a)     No filing powers mean no or negligible filing as well as disposal of bail petitions u/Sec.439 of the Cr.P.C. and also complete absence of Criminal Misc. Cases and therefore low Units per day.

b)    Another source of earning more units is disposal of Sessions Cases for which very high Units are reserved even though the Judgement may be one of “acquittal” generally completed in less than 4 pages and within half an hour. But ordinary Regular ADJs get very few Sessions cases for disposal in view of directions of Hon’ble High Court to the District Judges to transfer all sessions/Criminal cases only to the Additional Sessions Judges, posted in Fast Track Courts while all Civil matters such as Title Appeals, Misc. Appeals, MACC cases, Matrimonial Suits etc. etc. only are transferred to the Regular ADJs with the result that Unit churning Sessions cases go only to the Fast Track Courts while, tedious matters with less units per case such as NDPS cases, Electricity Cases, MACC cases, Title  Appeals, Mat Suits etc. where the quantum of labour required to be put in for disposal is though very high, units earned on disposal of such cases is often meager and the officer suffers for no fault on his part. For example, a two page Judgement of acquittal in a Sessions case would earn the officer concerned 10 or more units while even a ten page disposal of an MACC case u/Sec.166 of the MV Act would earn the concerned officer merely 3 units. This is blatantly unfair and needs to be revised. This often leads to unjust results. For example in the year 2007 and 2008, I received only 2.82 and 3.62 units by disposing of higher number of cases i.e. 227 and 378 cases because in these two years, disposal of MACC cases (which fetch only 1 unit in a case u/Sec.140 MV Act and only 3 units in a case u/Sec.166 of MV Act) was high.

c)     A low pendency of cases in remote Sub-divisions inevitably lead to low disposal of cases as because the Advocates in such a situation become interested in obtaining adjournments as no body wants to become brief-less.

YEAR

POSTING

PENDING CASES ON 1st January

DISPOSAL OF SESSIONS CASES

BAIL APPLICATIONS

PENDENCY AT THE END OF THE YEAR

UNITS EARNED

UNITS PER DAY

TOTAL DISPOSAL OF CASES

GRADATION

 

 

 

C

U

T

 

 

 

 

 

 

2003

ADJ F.T. ASANSOL

448

49

8

57

28

131

967.5

4.62

345

C

2004

ADJ FT ASANSOL AND DH

TWO POSTINGS

31

3

34

NIL

TWO POSTINGS

638

3.70

158

C

2005

ADJ FT AND ADJ REGULAR D.H.

364

69

10

79

107

307

1171.5

5.5

200 + 8 =208

C

2006

ADJ D.H.

80

28

6

34

604

699

1030.25

4.57

959

C

2007

ADJ CUM SPL JUDGE SURI

310

17

0

17

10

227

590.5

2.82

227

D

2008

-DO-

335

20

1

21

83

378

775.5

3.62

378

 

 

SECONDLY REGARDING THE QUALITY OF MY JUDGEMENTS:- A perusal of the comments made by the Hon’ble Justice Girish Chandra Gupta the then Judge-in-charge of the District would show that I am a victim of unfair comments that can not be sustained in the eye of law as would become clear from the replies given by me in respect of such comments one by one.

 

(A) Remarks on the Judgements of the year 2007 and my replies.

S.No.

Remarks of Hon’ble Justice

 

My Humble submissions regarding the Remarks.

1.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




 

 

 

2.

In respect of a Judgement of conviction in Sessions Case No.13 of 2007 His Lordship Wrote: Poor

1.     The expression “Confession” is an inference and not a statement of fact. When the witness says that the accused confessed his guilt, he is really giving an opinion which is not the job of a witness. Therefore, in the absence of evidence as regards exact words uttered by the accused  in law there can be no confession.

2.     In what circumstances was the confession made? No indication.

3.     According to  PW2 confession was made in the presence of Police which would take away much of the value thereof.

4.     In the absence of any independent evidence, it would be difficult to sustain the judgement.

5.     The Judgement is not at all well written.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

On the copy of Judgement in ST. No.96 of 94 Hon’ble Justice on the last page of the judgement commented:-

1)    Common object has not been clearly established by the judgement.

2)    Attributing “Stupidity” to the doctor is in bad taste.

3)    Prosecution does have the liability to explain the injury suffered by the accused.

 

It is humbly submitted that as per the law of the land a confession is neither an inference nor an opinion, but is only a question of fact or a fact in issue. Sec.5 to 55 of the Evidence Act reads, “Evidence may be given in any suit or proceeding of the existence or non-existence of every fact in issue and of such facts as are hereinafter declared to be relevant and of no others.” Sections 24 to Sec.30 relating to  confession are part of Chapter II. At page 5 of the Judgement, I quoted State of Rajasthan versus Rajaram 20003 Cr.L.J.3901 wherein Hon’ble SC observed, “……An extra Judicial confession, if voluntary and true and made in a fit state of mind have to be proved like any other fact. …….It is not open to any Court to start with the presumption that extra judicial confession is a weak type of evidence.” Hon’ble Justice by making the aforesaid comments has re-written the law of the land and the comments are not in conformity with the opinion of the Hon’ble SC.

In the said judgement, PW1 to PW11 all the villagers unanimously stated that the accused confessed before them his guilt and this evidence was almost unchallenged. Only one witness PW2 stated, “the accused confessed before the villagers and before the police.” Therefore, merely because he subsequently  also confessed before the Police as well, his first confession before arrival of the Police can not be thrown out. I doubt if there is any law or ruling that require that the confession must be in the exact words uttered by the accused. Hon’ble Justice in the comments laid down Rules regarding appreciation of facts but Hon’ble SC in Dalbir Singh  and others v. State of Panjab 1987 Cri.L.J. 1065=AIR 1987 SC 1328 para 15 observed, “No hard and fast rule can be laid down about appreciation of evidence – it is after all a question of fact and each case has to be decided on the facts as they stand in that particular case.”

 


This is another example of mis-judgement. The relevant sentence reads, “But on account of any stupid mistake committed by the doctor in giving details of the injuries sustained by the deceased, it cannot be presumed that the deceased cannot sustain any linear injuries caused by a lathi or sabal.” The word ‘stupid’ is an adjective and in the sentence qualifies the word mistake just as the word silly would qualify the word mistake in the words silly-mistake and not the doctor. Since it does not refer to the doctor, therefore, the comments are unwarranted.

After discussing the evidence of witnesses in pages 4 to 15, I concluded, “In my opinion, the direct evidence of eye witness account of PW7, 4, 12 is strong enough to fill the lacuna in the medical report of PW1, independently of the details of such injury, the conclusion that all the 7 accused persons named by P.W.4(Complainant), P.W.7 (Parimal Mondal) and PW12 (Nalini Kanta Mondal) are liable for causing grievous injuries to the victim Rabindra Nath Mondal on 2.8.93 in prosecution of their common object to assault him on account of the grudge against him in view of the incident dated 31.7.03 when the cow of the deceased ate up the paddy of accused persons. In my opinion, the prosecution has been able to establish the guilt of the 7 accused persons beyond all reasonable doubt.” Hon’ble Justice commented, “Why not discus that evidence?” This is unfair as in concluding I am not supposed to repeat what has already been discussed earlier in pages from 4 to 15 of the Judgement.

As regards injuries sustained by the accused, Hon’ble SC while disposing off Criminal Appeal No.87 of 2004, Chako @ Aninya Kunju and others v. State of Kerala, disposed of on 21.01.04 observed, “……..If the evidence is unblemished and beyond all possible criticism and the Court is satisfied that the witness was speaking the truth then on his evidence alone conviction can be maintained. Undisputedly, there were injuries found on the body of the accused persons on medical evidence. That per se cannot be a ground to totally discard the prosecution version. This is a factor which has to be weighed along with other materials to see whether the prosecution version is reliable, cogent and trustworthy. When the case of the prosecution is supported by an eyewitness who is found to be truthful, as well, mere non-explanation of the injuries on the accused persons cannot be a foundation for discarding the prosecution version.

      Hon’ble SC in Jagdish v. State of Rajasthan, AIR 1979 SC 1010 observed:-

           “It is true that where serious injuries are found on the person of the accused, as a principle of appreciation of evidence, it becomes obligatory on the prosecution to explain the injuries, so as to satisfy the Court as to the circumstances under which the occurrence originated. But before this obligation is place on the prosecution, two conditions must be satisfied:

1.     That the injuries on the person of the accused must be very serious and severe and not superficial.

2.     That it must be shown that these injuries must have been caused at the time of the occurrence in question.”

No such evidence was adduced by the defence to show that any of the accused received serious injuries to shift the onus upon the prosecution to discharge their liability to explain the injuries of the accused.

(B) Remarks on the Judgements of the year 2008 and my replies:-

S.No

Remarks of the Hon’ble Justice.

 

My humble submissions regarding the remarks.

1.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

  

 

2.

 

 

 

 

 

 

 

 

 

 

 

 

 

 


 

 

3.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

4.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

 

 

5.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

6.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 




 

7.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 


  

8.

On Misc. Appeal No.19 of 2007 Hon’ble Justice remarked, “(a) Best evidence was not produced by the  petitioner.

(b)Why have you not referred to the Cross-Exam.? – because it was ex-parte?

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In C Case No.2 of 2004 u/Sec.20(b)(i) of the NDPS Act, I found two accused persons guilty of joint possession of one Kg. of Ganja and I held them liable to for possession of 500 gms. of Ganja each and convicted them for the offence u/Sec.20(b)(i)(A) of the NDPS Act. Hon’ble Justice Gupta remarked, “Is this apportionment permissible?”

 

 


 

In Sessions Case No.4 of 1999 at page 14 where I wrote, “From the evidence of PW2,  we further find that this witness learnt from the deceased that a sum of Rs.1000/- was due to the deceased from the accused. Therefore, it is but natural that the deceased kept demanding the amount due to him from the accused……..him in future.” Against the same, Hon’ble Justice remarked, “Victime was a student of class IV and aged about 10/11 years (P6). Wherefrom he got Rs.1000/-? Moreover the accused was son of a well to do person (P7).”

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 



 

On the Judgement of Mat Case No.78 of 2006 u/Sec.9 if the Hindu Marriage Act against the Respondent wife referring to the evidence of the wife in her examination in chief as DW-1 Hon’ble Justice commented, “In appreciating evidence you were expected to refer to the cross-examination.”

  Referring to my comments over her evidence that no witness came forward to support her evidence that she was driven out after assault, Hon’ble Justice commented, “This must have been done in the privacy of the matrimonial home. Did you seriously expect any independent witness?”

 

 

 

 

 

 

 

 

 

 


 


On the judgement of dismissal of the E.A. Appeal No.1 of 1993, directed against the order No.12 dt. 06-06-92 of the Block Land Reforms Officer, Nanoor in Case No.365/1 u/S 5A of the WBEA Act where the Revenue Officer held that out of a total of 98 acres of land held by the ex-intermediary Lal Sudhir Krishna Ghosh transferred 31.95 acres of land by him in favour of his four sons by the registered deed of gift dt. 9-3-55 was not bonafide and that the same was principally made with the object of retaining lands in excess of the ceiling prescribed u/Sec.4 of WBEA Act and therefore, transfer is not bonafide u/S 5A(7) of the Act 1953 Hon’ble Justice wrote, “If the impugned order is not set aside, how can these directions be given effect to?”


Hon’ble Justice on the Judgement of T.A. No.46 of 2006 referring to my observations, “From Ext.A which is more than a 30 years old document, we find that the father of the plainitiff indeed sold a portion of bank of Ghat Pukur measuring 1 1/3 decimals of plot No.1028 to the defendant, Abu Jalal.” Hon’ble Justice commented, “Therefore, it could not have been the alleged deed of conveyance executed in 1982 on the basis of which the claim of the plaintiff rested (See Page.3.

 

 

 

 

 

 

 

 

 


In Sessions Case No.79 of 2007 resulting in acquittal of the accused u/Sec.235(1) of the Cr.P.C. from the offences u/Secs.302/34 on account of insufficient circumstantial evidence, Hon’ble Justice wrote on the margin, “This is a case of no evidence. Should have been acquitted u/Sec.232.”

 

 

 

 

 

 

 

  

In Misc. Appeal No.9 of 2002 filed by the plaintiff whose claim was he was the founding member of the School was rejected by the West Bengal Madrasa Education by its order dated 16-1-97 on being referred to by the High Court and who was thwarting development work of the school after receipt of a grant of 2 lacs by the Madrassa from the Govt. by filing various petitions including the rejected injunction petition by the lower Court, Hon’ble Justice at page 4 of my Judgement commented, “Why have you not discussed the cause of action of the plaintiff?”

 

Where the Respondent contends that the mandatory Notice u/Sec.9 of the WBLR Act was not served, the onus is upon him to prove the same by calling for the relevant documents from the concerned Department or by filing a document like searching slip to show that the Notice was indeed not served as contended by him otherwise, the P.O. would be justified u/Sec. 114(1)(e) of the Evidence Act to presume that all official and judicial acts are presumed to have been done lawfully.

    Oral evidence given in Chief and discussion to show probability point of view why the same should be accepted can not in my opinion be described as guesswork. In case it was an ex-parte order of the lower Court as commented by Hon’ble Justice, the Court can pronounce judgement even in the absence of evidence u/Order XV Rule 4.

 

May be, the Hon’ble Justice in this case is right as I did not find any Ruling either in favour of His Lordship’s view or in favour of my own view. Howerver, it is a cardinal principle of Criminal  Justice that if two views of any matter are possible, the accused is entitled to the view that goes in his favour. Both of them certainly did not work together in the criminal enterprise with any understanding that that the liability shall be joint while the benefit of the business transaction would go only to one of them.

 

  

Again, this amounts to laying down rules in respect of appreciation of facts, which is not permissible. I referred to the evidence given on oath by the witness PW-2 in open Court and I see no reason as to why such evidence should be rejected outright. At page 7, I quoted the father, who said, “From the School 10 Kg. of rice in a month was supplied, Faring used to keep the said rice and by selling some portion of it he used to purchase books, slate etc.” At page 12 and 13 of the Judgement, I quoted the evidence of PW2 (Habal) wherein he stated, “…….I heard from Faring that he will get about Rs.1000/- from the accused Zer Ali 3 / 4 days before his death…….” This part of evidence can be treated as a dying declaration of the deceased.

   It is often seen that the sons of moneyed people, are spendthrift and they sometimes do not hesitate to commit cheating , dacoity and even murder for monetary gains. The accused was a dropout from the school while the victim was a good student. Therefore, saving of money by a person suffering from scarcity of funds is but natural. Be it as it may, the observation was made on the basis of evidence on record and Hon’ble Justice is entitled to His Lordship’s view while I am entitled to my view in respect of this fact in issue.

 

The explanation to Sec.9 of the Hindu Marriage Act, 1955 reads, ”Explanation – Where a question arises whether there has been reasonable excuse for withdrawal from the society, the burden of proving reasonable excuse shall be on the person who has withdrawn from the society.”

     So when the law of the land imposes the onus to prove reasonable excuse for withdrawal on the Respondent and the Respondent fails to prove her case even in her examination-in-chief, can there ever be any justification for referring to cross examination? The husband would certainly not elicit any evidence from her cross-examination to destroy his own case.

    When a wife is driven out after assault, several independent witnesses can support her case. The neighbours may say they heard a hue and cry and saw the wife going away from the house of the petitioner. The doctor can support her case by proving injuries sustained by her in assault. Her own parents can come forward to say that one day their daughter returned home crying alleging that she was driven out by her husband after assault.


It did not occur to Hon’ble Justice that had I set aside the impugned order, the illegal transfer of land would become legal and outside the purview of the Zone of consideration whether the Appellant possessed any lands beyond the prescribed ceiling limit or not.

   With such transfer in favour of the sons becoming valid, the remaining land may not be beyond the prescribed ceiling limits and therefore, there could be no question of vesting of any excess land in the State. An order as suggested by the Hon’ble Justice would have let to validation by Court of  fraudulent transfer deeds to avoid vesting.

 

 

 

 

 

 

 

 

 

 

At page 3, Hon’ble Justice referred to my observation, “Be it as it may as per Para-5 of the plaint the said Jobeda Khatun Bibi transferred 11 decimals of the land in favour of Abdul Jabbar by means of registered deed of sale in the year, 1982. The devendent, Sk. Abu Jalal in his W.S. denied all these allegations….”

     The para refers to plaint case regarding acquisition of title in the year 1982 that failed. Ext.A is a document of the Defendant who won the case. How can the defendants drive title from unproven case of the Plaintiffs claiming Title since after 1982 is beyond my comprehension? Nowhere, in the Judgement the date of execution of Ext.A is mentioned. As such, on what basis, Hon’ble Justice declared that the document was not 30 years old? The plaintiffs claimed title in 1982 accrued in favour of Abdul Jabbar. The defendants claimed acquisition of title by virtue of Ext.A in favour of one Abu Jalal. Therefore, the two deeds are different and the beneficiary of the alleged executed documents are also different persons. As such, there is no connection between Ext.A and the year 1982, as sought to be made out by the Hon’ble Justice.

 


The accused in this case suspected that the deceased was having illicit relations with his wife – a co accused – and in this case a Katari belonging to the accused was recovered from near the P.O. as P.W.7 Prasanta das in his evidence stated, “….The Canal in which the dead body was lying had no water. One Katari was hanging with the branch of the Tamarind tree near the P.O.  At that time the accused persons were absent. But the son of the accused Sahadeb was present there and pointed to the Katari hanging on the tree that belonged to the accused Sahadeb.” Recovery of a weapon belonging to the accused near the dead body is an incriminating circumstance. But the accused was acquitted because the Katari could not be linked as a weapon with which the murder was committed. Can such a case fall within the purview of Sec.232 Cr.P.C. or called a case of no evidence? I disagree.

 

While disposing of an injunction petition u/Order 39 Rule 1 & 2, of the C.P.C. a Court I understand is required to discuss the following ingredients:-

i)                   Prima facie case, if any, of the plaintiff.

ii)                 Balance of convenience and inconvenience of the parties in the event the prayer for injunction is refused and

iii)               If any irreparable injury that can not be compensated in terms of money shall be caused to a party or not, in case the prayer for injunction is refused.

The requirement to discuss the cause of action at the time of the disposal of the injunction petition may sometimes be relevant, but certainly not essential and not required.

 

 

          In view of the submissions made by me above both regarding the quality and quantity of the Judgements delivered by me and my replies against the comments of the Hon’ble Justice Girish Gupta, I am of opinion that I deserve much better gradation for the 2007 and 2008 than what has either been awarded for the year 2007 or recommended by the Hon’ble Justice for the year 2008. I, therefore, request you to kindly place my representation before the Administrative Committee so that there be a fair up-gradation as regards my performance for the two years keeping in view the Gradation for the previous five years.

 

                                                                         Yours faithfully,

                                                                      Sd/-

                                                                         17-09-10

                                                                                        (Harjinder Singh)

 

Note: My aforesaid representation was later placed before the Administrative Committee of the Hon’ble  Calcutta High Court, and the Administrative Committee was pleased to reject my representation on the grounds that my disposal was poor. Now after my retirement, I am placing it before my friends for them to Judge if the rejection was correct or not.

Comments