TMI Blog2021 (4) TMI 33X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rs and the creation of the said Additional Courts thereunder may kindly be quashed in their entirety; (ii) issue a writ, order or direction in the nature of certiorari quashing the proceedings of the Court of Presiding Officer, Additional Court, Room No.5, Lucknow in the impugned Case No. 6800/2018 : Sri Praveen Kumar v. Sri Asif Ali and another lodged against the petitioners under S. 138 read with S. 141, Negotiable Instruments Act, 1881 on the complaint of respondent no.5 dated 16/18.8.2018 (Annexure No.4, Writ Petition) declaring the said proceedings, along with the creation of the said Additional Court, to be a nullity and void ab initio for being unconstitutional and illegal; (iii) issue a writ, order or direction in the nature of prohibition prohibiting any further proceedings against the petitioners before the Court of Presiding Officer, Additional Court, Room No. 5, Lucknow or any other Court in Case No. 6800/2018 :Sri Praveen Kumar v. Sri Asif Ali and another lodged under Section 138 read with S. 141, Negotiable Instruments Act, 1881 on the complaint of respondent no.5 dated 16/18.8.2018 (Annexure No.4, Writ Petition) (iv) issue such other writs, orders or d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nst this theft, the Chartered Accountant of the petitioner no.1 informed the police and also filed a complaint in the Court of Additional Chief Judicial Magistrate (IV), Lucknow under Section 190 (a) read with Section 200 Cr.P.C. Thereafter, on 04.09.2020, the Chartered Account of the petitioner no.1 died on 04.09.2020. (7) According to the petitioners, on 17.07.2018, the respondent no.5 presented the aforesaid two stolen cheques to the Bank. On being informed by the bank about the presentation of the said cheques of a four years old series and of such a high amount, the petitioner no.1 asked the bank to put them on hold as the cheques were not issued by the petitioner no.1. Thus, the bank did not allow the encashment of aforesaid two cheques. Thereafter, the respondent no.5 filed a complaint case under Section 138 read with Section 141 of the Negotiable Instruments Act before the Court of Special Chief Judicial Magistrate (Customs), Lucknow, which was registered as Case No. 6800 of 2018 : Sri Praveen Kumar Vs. Sri Asif Ali and another. (8) It has been stated by the petitioners that in the aforesaid complaint, it has been alleged by the respondent no.5 that on 04.04.2018, a s ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... raveen Kumar, in which the Hon'ble Supreme Court, vide order dated 09.12.2019, dismissed the SLP with liberty to the petitioner no.1 to appear before the Chief Judicial Magistrate, Lucknow within four weeks and apply for bail. (11) Pursuant to the aforesaid order dated 09.12.2019, the petitioner no.1 applied for bail, which was granted by the Court of Presiding Officer, Additional Court, Room No. 5, Lucknow and since then, the petitioner no.1 is on bail. (12) After releasing the the petitioner no.1 on bail, he filed an application dated 28.02.2020 for discharge before the Court of Presiding Officer, Additional Court, Room No.5, Lucknow in the complaint case, to which respondent no.5/complainant has filed objections dated 06.03.2020. Thereafter, the Court of Presiding Officer, Additional Court, Room No. 5, Lucknow, vide order dated 15.01.2021, has rejected the said application for discharge dated 28.02.2020 filed by the petitioner no.1 on the ground that the plea of the accused/petitioner no.1 is a subject matter of evidence in trial. Thereafter, on 29.01.2021, the statement of the petitioner no.1 under Section 251 Cr.P.C. was recorded in the complaint case. On 19.02.2021, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution of business vested in the Chief Judicial Magistrate under Section 15 (2) of the Cr.P.C. as a retired District and Sessions Judge is not a judicial magistrate. (15) It has been argued by the learned Counsel for the petitioners that Chapter XVII of the Act, 1881 is a special law, which must be strictly construed and the application thereof cannot be stretched beyond what is expressly provided therein, nor the remedy of a civil suit under the general law is to be necessarily excluded in all cases. (16) Learned Counsel for the petitioners has contended that it is per se frivolous and vexatious that in the complaint, M/s Bushrah Export House has been arrayed as the accused no. 2 through its Sole Proprietor, the petitioner no.1/accused no.1. The sole proprietorship is not a company in view of Section 141 of the Negotiable Instruments Act. Thus, the complaint case filed by the respondent no.5 against the sole proprietorship of the petitioner no.1 is manifestly not maintainable. It has also been stated that the said transfer of the complaint case is an invalid exercise of power of distribution of business vested in the Chief Judicial Magistrate under Sections 15 (2) of the Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... option from the judicial officers of the cadre of U.P. Higher Judicial Services, who retired or going to retire during the period from 01.04.2013 to 31.03.2016, were invited by uploading the vacancy on official website of the High Court. It was also provided by the Committee that no Presiding Officer shall hold the office after he has attained the age of 70 years of age on 31.03.2020. Consequently, the High Court, on receipt of the requisite application from the retired judicial officer of the cadre of U.P. Higher Judicial Services and after scrutinizing the same, recommend the name of 38 retired judicial officers of U.P. Higher Judicial Services Cadre for their appointment as Presiding Officers of such additional Courts in the district and had requested to the State Government to communicate the order of the Government in this regard. In compliance thereof, the State Government, vide order dated 26.07.2016, had issued necessary orders in respect of appointment of 38 retired judicial officers of U.P.H.J.S. cadre as Presiding Officers of the 38 additional Courts. Thus, there is no illegality or infirmity in appointing the Presiding Officer of the additional Courts. (20) Learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... , Lucknow. Thereafter, the petitioner no.1 had applied for discharge, which was rejected by the Presiding Officer, Additional Court, Room No. 5, Lucknow vide order dated 15.01.2021 on the ground that discharge of the petitioner no.1 in the complaint case is the subject matter of evidence in the trial. The trial is at advance stage. At this stage, the petitioner no.1 has filed this writ petition raising the plea that the creation of additional court vide impugned Government Orders by appointing the retired District Sessions Judge is unconstitutional. (23) Elaborating his submission, learned AGA has submitted that before the date of rejection of the application of discharge filed by the petitioner no.1, the petitioner no.1 has participated and actively contested the proceedings before the Additional Court created by the impugned Government Orders. The entire series of events shows that the petitioner no.1 with mala fide intention and oblique motive has raised the plea of appointment of the Additional Court as unconstitutional just to linger on the proceedings pending before the Additional Court. (24) Learned AGA has further submitted that the petitioners have not questioned t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t for adjudication of the issue involved in the matter. (27) Having considered the submissions of the learned Counsel for the petitioners, learned Counsel for the High Court and learned AGA, we are in full agreement with the submission of the learned AGA that the present writ petition is not maintainable as disputed question of fact relating to the cheque in question is involved in the present writ petition. (28) So far as the plea of the petitioners that appointment of the retired District Sessions Judge by the impugned Government Orders as Additional Court is unconstitutional as their appointment has been made by issuing an executive order, we think it appropriate to discuss the manner in which the impugned Government Orders have been issued and appointment of the retired District Sessions Judge has been made. (29) 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... from 01.04.2013 to 31.03.2016 by uploading the vacancy on official website of the High Court. The Hon'ble High Court, after adopting due procedure, recommended the names of 38 retired Judicial Officers of Higher Judicial Services cadre for their appointment as Presiding Officer of such additional courts in the districts. Pursuant to the aforesaid recommendations, impugned Government Orders have been issued. (32) At this stage, we deem it apt to reproduce Section 13 of the Code of Criminal Procedure, which is as under : 13. Special Judicial Magistrates. - (1) The High Court may, if requested by the Central or State Government so to do, confer upon any person who holds or has held any post under the Government, all or any of the powers conferred or conferrable by; or under this Code on a Judicial Magistrate of the first or of the second class, in respect to particular cases or to particular classes of cases, in any local area, not being a metropolitan area : Provided that no such power shall be conferred on a person unless he possesses such qualification or experience in relation to legal affairs as the High Court may, by rules, specify. (2) Such Magistrates sh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Court to try the cases of motor vehicle challans, insurance claims and cheque bouncing matters. (34) It has been informed by the learned AGA as well as learned Counsel for the High Court that the term of 38 retired District and Sessions Judge as Additional Court in pursuance of the recommendation of the 14th Finance Commission has been extended from time to time and lastly, vide Government Order dated 05.03.2021, their term has been extended w.e.f. 01.03.2021 to 28.02.2022. (35) It is needless to mention that though the appointment of the retired District Sessions Judge has been made as Additional Court to try the cases of motor vehicle challans, insurance claims and cheque bouncing matters but they have not been given the power by the High Court to exercise or act as a Sessions Judge but the High Court has treated them as Special Judicial Magistrates having the powers to try the cases of motor vehicle challans, insurance claims and cheque bouncing matters only and not beyond that. (36) At this stage, we deem it appropriate to reproduce Section 142 of the Negotiable Instruments Act, which reads as under : 142. Cognizance of offences: Notwithstanding anything contai ..... X X X X Extracts X X X X X X X X Extracts X X X X
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