TMI Blog2013 (9) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... 011 (8) TMI 1086 - SUPREME COURT] followed. Competency of State Government to appoint Ld. Special Judge on contractual basis - To Conclude present trail - With consultation of the High Court u/A- 235 of Constitution of India - HELD THAT:- the State Government is competent to appoint the learned Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court u/A 235 of the Constitution. Further, the matter requires to be considered by the State Government with the consultation of the High Court. Therefore, the matter was referred to the High Court of Karnataka to decide on the administrative side to conclude the trial expeditiously as guaranteed u/A 21 of the Constitution, requires the extension of the services of the learned Special Judge. As the matter was urgent, the High Court of Karnataka is requested to take a decision in this regard as early as possible. The decision in the case STATE OF UTTAR PRADESH VERSUS SINGHARA SINGH AND OTHERS [ 1963 (8) TMI 43 - SUPREME COURT] followed. - Writ Petition (Criminal) No. 154 of 2013, With Writ Petition (Criminal) No. 166 of 2013 - ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment of a new SPP and in accordance with the directions of this Court, submitted names of four Advocates to the High Court for consideration by the Chief Justice. 5. The Acting Chief Justice of Karnataka High Court on 29.1.2013 recommended the name of Shri G. Bhavani Singh, respondent No.4 for appointment though his name was not submitted by the Government of Karnataka. The Government of Karnataka accepted the same and issued a Notification appointing Shri G. Bhavani Singh as SPP. After issuance of the notification dated 2.2.2013, Shri G. Bhavani Singh started working and 99 defence witnesses were examined and 384 defence exhibits were marked between 28.2.2013 and 29.7.2013. The defence commenced arguments on 2.8.2013 and concluded the same. However, it was on 13.8.2013 that respondent no.5 filed an application under Section 301(2) Cr.P.C. The learned Special Judge permitted respondent no.5 vide order dated 21.8.2013 to file Memo of Arguments and to render such assistance to the SPP as he may require. The respondent no.5 filed two applications on 23.8.2013 before the trial court, one under Section 309 Cr.P.C. seeking adjournment by 4 weeks and another under Section 311 Cr.P.C. t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... itted that it is settled law that an accused has a right to a speedy trial, as guaranteed under Article 21 of the Constitution; the order withdrawing the appointment of respondent no.4 as SPP is a calculated step to protract the trial in view of impending retirement of the learned Special Judge on 30th September, 2013; and any Judge who takes over the matter would require considerable time to get familiar with the lengthy record as the recorded evidence oral and documentary run into 34000 pages; the trial has almost been completed since the entire evidence of the prosecution and the defence has been recorded and statements of the accused persons (petitioners) under Section 313 of the Code of Criminal Procedure, 1973 (hereinafter referred to as Cr.P.C. ) have also been recorded; the withdrawal of appointment of SPP after six months of his functioning is motivated by malafides with a view to protract the trial as there has been a change of government in the State of Karnataka; the present case being a warrant case under the Prevention of Corruption Act, 1988 (hereinafter referred to as the Act 1988 ), final submissions of the defence already stood concluded. Eventually, according t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt by the State Government. Thus, in the facts and circumstances of the case, no interference is warranted and petitions are liable to be dismissed. 14. We have heard learned counsel for all the parties and perused the record produced before us by the Karnataka High Court. 15. The reason put forth by the Government of Karnataka for removing Shri G. Bhavani Singh as SPP appears to be rather unusual. It may be true that the name of Shri G. Bhavani Singh was not in the list of four names submitted by the Government of Karnataka to the then Acting Chief Justice of the High Court and the name originated from the Acting Chief Justice, prior to making of appointment of SPP by the Government of Karnataka; but it is equally true that the appointment was made by the Government without questioning the ability or suitability of the incumbent nor the government raised any issue in respect of the manner/issue of consultation. On the contrary, upon receiving the recommendation, the Government proceeded to appoint Shri G. Bhavani Singh by issuing a Notification without any demur. Apart from this the appointment continued un-objected for almost seven months. 16. Even before us, no issue ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... particularly in Chandramouleshwar Prasad v. The Patna High Court Ors., AIR 1970 SC 370; Union of India v. Sankalchand Himatlal Sheth Anr., AIR 1977 SC 2328; State of Gujarat v. Gujarat Revenue Tribunal Bar Association, AIR 2013 SC 107; and State of Gujarat Anr. v. Justice R.A. Mehta (Retired) Ors., (2013) 3 SCC 1, have no application. 18. We may record that though some criticism was made of the letter dated 14.9.2013 of the Chief Justice of Karnataka approving the revocation of the appointment of Shri G. Bhavani Singh and certain observations therein, we are not inclined to go into the merits, demerits or validity of the letter. In the first place, the said letter is not an order that may affect any of the rights of the petitioners. It is merely an approval given in the course of consultation for the removal of Shri G. Bhavani Singh who has not questioned his removal. The petitioners have challenged the validity of the action of the State Government removing Shri G. Bhavani Singh on the ground that fundamental rights under Article 21 for speedy trial have been breached thereby. In the circumstances, it is not necessary to pronounce on the correctness or otherwise of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the switch-over of government in between has resulted in a sudden change of opinion that is abrupt for no discernable legally sustainable reason. The sharp transitional decision was an act of clear unwarranted indiscretion actuated by an intention that does not appear to be founded on good faith. 21. The record of the case reveals that the learned Special Judge had started hearing of the present case on 20.11.2012. He had recorded the statements of the accused in December 2012 and January 2013 under Section 313 Cr.P.C. The learned Judge examined 99 defence witnesses and 384 defence exhibits were marked before him. The defence concluded its argument before the learned Special Judge and SPP commenced the final arguments on 23.8.2013. He was interrupted abruptly as on 26.8.2013, the SPP was asked not to continue with the work. The evidence led in the case is very bulky as it runs into 34000 pages. In case a new Judge starts hearing the matter, he is bound to take a long time to understand the factual and legal niceties involved in the case. Accordingly, we have no hesitation in holding that the Notification purporting to revoke the appointment of Shri G. Bhavani Singh as SPP i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is manifested by its injurious acts. Passing an order for unauthorized purpose constitutes malice in law. (See also: Kalabharati Advertising v. Hemant Vimalnath Narichania Ors., AIR 2010 SC 3745). 25. Thus, it is trite law that if discretionary power has been exercised for an unauthorised purpose, it is generally immaterial whether its repository was acting in good faith or in bad faith and the order becomes vulnerable and liable to be set aside. 26. Fair trial is the main object of criminal procedure and such fairness should not be hampered or threatened in any manner. Fair trial entails the interests of the accused, the victim and of the society. Thus, fair trial must be accorded to every accused in the spirit of the right to life and personal liberty and the accused must get a free and fair, just and reasonable trial on the charge imputed in a criminal case. Any breach or violation of public rights and duties adversely affects the community as a whole and it becomes harmful to the society in general. In all circumstances, the courts have a duty to maintain public confidence in the administration of justice and such duty is to vindicate and uphold the majesty of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Article 142 of the Constitution for a direction to the competent authority to extend the tenure of the Special Judge, who is due to reach the age of retirement on 30th September, 2013. 28. The learned Attorney General, however, submitted that this Court could not exercise its powers under Article 142 of the Constitution in the present case since such an exercise would be contrary to laws under which each Judge must retire on reaching the age of superannuation. In order to fortify his submission, learned Attorney General placed reliance on the judgment of this court in A.B. Bhaskara Rao v. Inspector of Police, CBI Vishakapatnam, (2011) 10 SCC 259, wherein this court held that the powers under Article 142 of the Constitution cannot be exercised by this court in contravention of any statutory provisions, though such powers remain unfettered and create an independent jurisdiction to pass any order in pubic interest to do complete justice. However, such exercise of jurisdiction should not be contrary to any express provision of law. The powers under Article 142 of the Constitution stand on a wider footing than ordinary inherent powers of the court to prevent injustice. The cons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cruitment) Rules, 1977 authorise the State Government to appoint a retired government servant on contractual basis after meeting certain formalities, for a specific period as may be necessary. So far as judicial officers are concerned, their services are governed by the Karnataka Judicial Services (Recruitment) Rules, 1983 and Rule 3(2) thereof provides the application of the rules framed under any law or proviso under Article 309 of the Constitution to judicial officers, though subject to the provisions of Articles 233, 234 and 235 of the Constitution. The Rules of 1983 stand repealed by the Karnataka Judicial Service (Recruitment) Rules 2004 (hereinafter referred to as the Rules 2004 ) and Rule 11(2) thereof reads as under: 11(2). All rules regulating the conditions of service of the members of the State Civil Services made from time to time under any law or the proviso to Article 309 of the Constitution of India shall, subject to Articles 233, 234 and 235 be applicable to the Civil Judges (Junior Division), Civil Judges (Senior Division) and the District Judges recruited and appointed under these rules. Thus, it is evident that the State Government is competent to app ..... X X X X Extracts X X X X X X X X Extracts X X X X
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