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2021 (4) TMI 33 - HC - Indian LawsDishonor of Cheque - Constitutional Validity of Appointment of the retired District & Sessions Judge by the impugned Government Orders as Additional Court - section 138 read with Section 141 of Negotiable Instruments Act, 1881 - HELD THAT:- The Law Commission had taken note of the experience of the judicial post for the purpose of appointment and conferment of power of Special Judicial Magistrates with the object of securing the expeditious disposal of criminal cases. The Joint Select Committee also took note of the criticisms against the system of Honorary Magistrates and expressed the view that proper way to deal with the arrears of petty criminal cases was to appoint sufficient number of stipendiary Magistrates as a wholesome deletion of the institution of Honorary Members would give rise to problems in some States. The Joint Select Committee suggested that provision be made for the appointment of Special Judicial Magistrates with certain modifications in the earlier system. One of the suggestions was that the appointees should either be persons in Government service or those who have retired from Government service. As a result of these deliberations, Section 13 of the Code of Criminal Procedure, 1973 came to be enacted in their present form. The Hon'ble High Court, vide order dated 19.08.2015, requested the State Government to intimate the cadre of the proposed 38 temporary additional Courts to be created in the State of U.P. to be manned by retired judges and contractual staff for disposing off such cases which constitute the majority of pendency i.e. motor vehicle challans, insurance claims and check bouncing matters, to the Court - Pursuant to the aforesaid letters of the High Court, the State Government, vide letter dated 16.10.2015, requested to the Hon'ble High Court that looking to the nature of the cases, decision with regard to the appointment of the Presiding Officer and staff be taken at the end of Hon'ble High Court. There are no warrant for placing a narrow construction on the words 'who holds or has held any post under the Government' to confine them to appointments of Government servants, present or past only, and to exclude members belonging to the subordinate Judicial Services. Furthermore, the duration of appointment has been restricted to one year at a time which would give the High Court an opportunity to observe the work of the appointee to enable it to decide whether or not to extend the appointment for a further period, if the workload justifies such continuance. We are, therefore, of the opinion that there is no error in the impugned Government Orders appointing the retired District & Sessions Jude in temporary Additional Court to try the cases of motor vehicle challans, insurance claims and cheque bouncing matters. A bare reading of the aforesaid Section 142 of the Negotiable Instruments Act reveals that it governs taking of cognizance of the offence and starts with a non-obstante clause - the Judicial Officers, who have been appointed on 38 posts of Additional Courts created under the recommendation of 14th Finance Commission, are retired Judicial Officers belonging to U.P. Higher Judicial Services cadre and is superior to the Court of Judicial Magistrate of First Class, hence the claim of the petitioners being inferior Court than one prescribed under Section 142 of the Negotiable Instruments Act or not empowered under Section 13 of the Code of Criminal Procedure, 1973 does not arise as these Officers are the judicial officers of higher cadre. The instant writ petition is devoid of merit, which is liable to be dismissed - Petition dismissed.
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