Whether magistrate can refuse surrender of accused?

 From the above judgments, it is crystal clear that an accused, by surrendering before a Magistrate, gets into the custody of the Magistrate and thereafter, the Magistrate concerned has to deal with him under Section 167(2) of the Code of Criminal Procedure. It is also crystal clear that such Magistrate before whom the accused surrenders need not be the one having territorial jurisdiction either to try or commit the case for trial. Irrespective of the fact whether he has territorial jurisdiction to try the case or to commit it to the court of session for trial, if the accused, in connection with any case under investigation, surrenders before a Magistrate on his own, the Magistrate has no discretion to refuse to accept the surrender of the accused before him for any reason.

HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH 

SERVICE BENCH No. - 258 of 1996 

 S.C.Shukla v State Of U.P. 

Hon'ble Shri Narayan Shukla,J. 

Hon'ble Sheo Kumar Singh-I,J. 

1- By means of present writ petition filed under Article 226 of Constitution of India, the petitioner has assailed the enquiry report dated 13.2.1995 contained as Annexure No.-7 of the writ petition and the order of removal from services dated 6.2.1996 contained as Annexure No.-9 of the writ petition, with further prayer to issue a writ, order or direction in the nature of mandamus commanding the opposite parties to reinstate the petitioner on the post of District Judge with full consequential benefits. 

2- The petitioner late Sri Suresh Chandra Shukla was a judicial official and was posted as a District Judge in District Fatehpur in the year 1994 and in the matter of granting a bail, a preliminary enquiry was conducted by the sitting Judge of the High Court and vide report dated 9.5.1994, it was found that the Sessions Judge Fatehpur had absolutely no jurisdiction to take the accused into custody or to entertain the bail application and release the accused on bail. The then Sessions Judge Fatehpur did not complied with the provisions of Section 439 of Cr.P.C. and the direction given by the Court in Circular letters and the bail was granted to the accused without putting any restrain on the movement of the accused to indicate that the accused was under custody. After submission of the preliminary enquiry the matter was placed before the competent authority and a departmental enquiry was initiated against the officer and during the enquiry he was placed under suspension. The Enquiry Judge submitted the report to the Hon'ble Chief Justice, which was placed before Administrative Committee and with the report of the Administrative Committee the matter was again placed before full Court where he was found guilty of misconduct and a decision was taken to remove him from service. The matter was referred to the State Government i.e. Governor/appointing authority and vide order dated 6.2.1996 a decision was taken by the appointing authority/competent authority to remove the services of the petitioner. Aggrieved by the aforesaid order the present petition has been filed on the following grounds:- 

1- That there was no complaint from anyone. 

2- That the conclusion arrived by the Enquiry Judge was not based on material on record. 

3- That on the basis of evidence of the enquiry no inference can be drawn against the petitioner. 

4- That the enquiry report seems to be not written by the enquiry Judge. 

5- That the Enquiry Officer/the Administrative Committee and the Full Court ought to have looked into the character role of the petitioner which was not examined by the authority concerned while taking decision against the delinquent officer. 

3- Brief facts giving rise to filing of the present writ petition are that the petitioner while acting as District and Sessions Judge Fatehpur on 4th March 1994, he entertained heard and disposed of the bail application of Sanjay Somani on the same day in Case Crime No.- 45/94 under Sections 420/467/468/409 I.P.C. , at Police Station Philkhana, District Kanpur Nagar for extraneous consideration committing irregularities and failed to maintain absolute integrity and devotion to duty while exercising the powers as Sessions Judge. There were charges against the delinquent officer that the matter relates to the Kanpur Nagar Jurisdiction while the delinquent officer working as a Sessions Judge in Fatehpur, entertained the surrender application and allowed the bail application without affording any opportunity of hearing to the D.G.C./ State and allowed the application on the same day on 4.3.1994 without jurisdiction and without putting any restrain on the movement of the accused to indicate that he was under custody. In a case of embezzlement of about twenty five crores in the year 1994, the accused was wrongly taken into custody without jurisdiction and was granted bail for two months vide order dated 4.3.1994 without any reasonable ground and without having any jurisdiction in the matter where the accused was neither taken into custody by the police nor warrant has been issued against him for arrest by any Court of Kanpur nor he was arrested at Fatehpur on a warrant issued by the Court of the concerned district. Further after grant of bail and directing the accused to be released on his executing a personal bond of ten lakhs and two sureties of rupees two lakhs, the accused was further allowed a week's time for filing a sureties bond and accused was released on the same day for extraneous consideration. 

4- Second charge relates to the grant of bail in case crime no.-42/94 under Section 420/467/468/120B and 409 I.P.C. at Police Station Gwaltoli, Kanpur Nagar 7th March 1994 for extraneous reason and extraneous consideration without following the settled procedure for granting bail and the delinquent officer failed to maintain absolute integrity and devotion to duty while exercising the powers as Sessions Judge, Fatehpur. 

5- Learned Counsel has submitted that the official/ the then District Judge Fatehpur was competent to take the accused under custody even if the accused does not belong to his territorial jurisdiction under Section 167 of the Cr.P.C. 

6- While learned Counsel for the respondents has submitted that learned the then Sessions Judge was not empowered to take the accused into custody in the case relating to other territorial jurisdiction and had no territorial jurisdiction to decide and dispose of the bail application. The provisions as contained under Section 167 Cr.P.C. relating to grant of remand of the accused taken into custody by the police enshrined from Article 21 of the Constitution. 

7- Article 21 of the Constitution of India, which is considered to be the heart and soul of the Constitution guarantees the protection of life and personal liberty of any person. The deprivation of such liberty could be made only by following the procedure established by law. The procedure enshrined in Article 21 of the Constitution of India must not only be established by law but that must be just, fair and reasonable [vide Maneka Gandhi v. Union of India, MANU/SC/0133/1978MANU/SC/ 0133/1978 : AIR 1978 SC 597]. Article 22 of the Constitution of India guarantees protection against arrest and detention in certain cases. As per sub-article (2) of Article 22 of the Constitution, every person, who is arrested and detained in custody, shall be produced before the nearest Magistrate within a period of twenty-four hours of such arrest excluding the time necessary for the journey from the place of arrest to the court of the Magistrate and no such person shall be detained in custody beyond the said period without the authority of a Magistrate. In tune with Articles 21 and 22, law has been made by the Parliament in the shape of Section 57 of the Code of Criminal Procedure, 1973 which states "No police officer shall detain in custody a person arrested without warrant for a longer period than under all the circumstances for the case is reasonable, and such period shall not, in the absence of a special order of a Magistrate under Section 167, exceed twenty-four hours exclusive of the time necessary for the journey from the place of arrest to the Magistrate's court. Thus, as mandated by sub-article (2) of Article 22 of the Constitution and Section 57 of the Code of Criminal Procedure, an arrested person cannot be detained in the custody of the police beyond the period of twenty-four hours without the authorization of a Magistrate. Sub-section (1) of section 167 of the Code of Criminal Procedure, mandates that if the investigation could not be completed within twenty-four hours from the time of arrest, he shall be produced before the nearest Judicial Magistrate.

8- Sub-section (2) of Section 167 of the Code of Criminal Procedure, is important for our discussion in this case. Let us have a look into the same which reads as follows:-- 

"167. Procedure when investigation cannot be completed in twenty-four hours. - (1) ... ... ... 

(2) The Magistrate to whom an accused person is forwarded under this section may, whether he has or has not jurisdiction to try the case, from time to time, authorise the detention of the accused in such custody as such Magistrate thinks fit, a term not exceeding fifteen days in the whole; and if he has no jurisdiction to try the case or commit it for trial, and considers further detention unnecessary, he may order the accused to be forwarded to a Magistrate having such jurisdiction: 

Provided that- 

(a) the Magistrate may authorise the detention of the accused person, otherwise than in the custody of the police, beyond the period of fifteen days, if he is satisfied that adequate grounds exist for doing so, but no Magistrate shall authorise the detention of the accused person in custody under this paragraph for a total period exceeding- 

(i) ninety days, where the investigation relates to an offence punishable with death, imprisonment for life or imprisonment for a term of not less than ten years; 

(ii) sixty days, where the investigation relates to any other offence, and, on the expiry of the said period of ninety days, or sixty days, as the case may be, the accused person shall be released on bail if he is prepared to and does furnish bail, and every person released on bail under this sub-section shall be deemed to be to released under the provisions of Chapter XXXIII for the purposes of that Chapter; 

(b) no Magistrate shall authorise detention in any custody under this section unless the accused is produced before him in person for the first time and subsequently every time till the accused remains in the custody of the police, but the Magistrate may extend further detention in judicial custody on production of the accused either in person or through the medium of electronic video linkage. 

(c) no Magistrate of the second class, not specially empowered in this behalf by the High Court, shall authorise detention in the custody of the police. 

Explanation I-For the avoidance of doubts, it is hereby declared that, notwithstanding the expiry of the period specified in paragraph (a), the accused shall be detained in custody so long as he does not furnish bail. 

Explanation II-If any question arises whether an accused person was produced before the Magistrate as required under paragraph (b), the production of the accused person may be proved by his signature on the order authorising detention or by the order certified by the Magistrate as to production of the accused person through the medium of electronic video linkage, as the case may be: 

Provided further that in case of woman under eighteen years of age, the detention shall be authorised to be in the custody of a remand home or recognized social institution. 

............... 

........." 

10- A conjoint reading of sub-section (1) and subsection (2) would, at the first blush, make it appear as though sub-section (2) could be invoked by a Magistrate provided the accused was arrested and forwarded to the Magistrate concerned. In other words, the impression is that the condition precedent for the Magistrate to authorise the detention of the accused is the arrest of the accused first. This provision came to be interpreted by the Hon'ble Supreme Court in Directorate of Enforcement v. Deepak Mahajan, MANU/SC/0422/1994MANU/SC/0422/1994 : (1994) 3 SCC 440 wherein in para 48, the Hon'ble Supreme Court has dispelled the above interpretation by holding as follows:- 

"48. Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalistic interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences." 

11- Similar view was taken earlier by a Full Bench of this Court in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu MANU/TN/0028/1983MANU/TN/0028/1983 : 1983 MLW (Cri) 289. 

12- The question as to when a person gets into the custody of the court came up for consideration before the Hon'ble Supreme Court in Niranjan Singh v. Prabhakar Rajaram Kharote, MANU/SC/0182/1980MANU/SC/0182/1980 : (1980) 2 SCC 559 wherein speaking for the Bench, Hon'ble Mr. Justice V.R. Krishna Iyer in para 9 of the judgement has held as follows:-- 

"9. He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions." 

13- The above judgement of the Full Bench of the court in Roshan Beevi v. Joint Secretary, Government of Tamil Nadu MANU/TN/0028/1983MANU/TN/0028/1983 : 1983 MLW (Cri) 289 was later considered by the Hon'ble Supreme Court in State of Haryana V. Dinesh Kumar, MANU/SC/7045/2008MANU/SC/7045/ 2008 : (2008) 3 SCC 222 wherein in paras 25 & 27 of the judgement, the Hon'ble Supreme Court has held as follows:- 

"25. We also agree with Mr. Anoop Chaudhary's submission that unless a person accused of an offence is in custody, he cannot move the court for bail under Section 439 of the Code, which provides for release on bail of any person accused of an offence in custody. The precondition, therefore, to applying the provisions of Section 439 of the Code is that a person who is an accused must be in custody and his movements must have been restricted before he can move for bail. This aspect of the matter was considered in Niranjan Singh's case where, it was held that a person can be stated to be in judicial custody when he surrenders before the court and submits to its directions." 

... ... ...... 

"27. The interpretation of arrest and custody rendered by the Full Bench in Roshan Beevi's case may be relevant in the context of Section 107 and 108 of the Customs Act where summons in respect of an enquiry may amount to custody but not to arrest, but such custody could subsequently materialize into arrest. The position is different as far as proceedings in the court are concerned in relation to enquiry into offences under the Indian Penal Code and other criminal enactments. In the latter set of cases, in order to obtain the benefit of bail an accused has to surrender to the custody of the court or the police authorities before he can be granted the benefit thereunder." 

14- The above judgments in Roshan Beevi, Niranjan Singh, Dinesh Kumar and Deepak Mahajan cases were again considered by the Hon'ble Supreme Court very recently in Sandeep Kumar Bafna v. State of Maharashtra, MANU/SC/0239/2014MANU/ SC/0239/2014 : [2014] 4 Scale 215, wherein the Hon'ble Supreme Court has approved the view taken in all these judgments. 

15- From the above judgments, it is crystal clear that an accused, by surrendering before a Magistrate, gets into the custody of the Magistrate and thereafter, the Magistrate concerned has to deal with him under Section 167(2) of the Code of Criminal Procedure. It is also crystal clear that such Magistrate before whom the accused surrenders need not be the one having territorial jurisdiction either to try or commit the case for trial. Irrespective of the fact whether he has territorial jurisdiction to try the case or to commit it to the court of session for trial, if the accused, in connection with any case under investigation, surrenders before a Magistrate on his own, the Magistrate has no discretion to refuse to accept the surrender of the accused before him for any reason. 

16- The immediate next question is, after the surrender of the accused, how he has to be dealt with under Section 167(2) of the Code of Criminal Procedure. Obviously, this provision deals with the power of the Magistrate having jurisdiction to try the case and also a Magistrate who has no jurisdiction either to try the case or to commit it for trial. A close reading of the first part of sub-section (2) of Section 167 would make it clear that the Magistrate before whom the accused surrenders, whether he has or has not jurisdiction to try the case, from time to time, authorize the detention of the accused in such custody as he thinks fit for a term not exceeding fifteen days in the whole. 

17- The latter part of sub-section (2) of Section 167 states that if the Magistrate who has no jurisdiction to try the case or to commit it for trial considers that his further detention is unnecessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction. Here, the expression "unnecessary" needs to be emphasised. This expression employed in sub-section (2) of Section 167 would make it further clear that after the surrender of the accused, the Magistrate concerned, who has no jurisdiction to try the case or to commit it for trial, has to consider whether his further detention is necessary or unnecessary. If the said Magistrate finds that the detention of the accused is unnecessary, then as per the second part of sub-section (2) of Section 167, the Magistrate shall only order the accused to be forwarded to the Magistrate having jurisdiction without authorizing the further detention of the accused to any custody. But, as per the first part of sub-section (2) of Section 167, if the Magistrate has no jurisdiction to try the case and if he finds that detention of the accused is necessary, then, he has to authorise the further detention of the accused provided the investigation is pending. 

18- The next question is, as to how the Magistrate could decide whether the further detention of the accused is necessary or unnecessary. In this regard, we may say that this task does not involve any adjudication. It is only the prima facie satisfaction of the Magistrate concerned that matters. But, such prima facie satisfaction cannot be arrived at in vacuum. In order to arrive at such a satisfaction, the Magistrate needs some materials and from the materials or substances placed before him, he is required to arrive at a satisfaction as to whether the further detention of the accused who has surrendered before him is necessary or unnecessary. It may be argued that at that time the Magistrate may not have any material to authorise such detention. Though there is some force in the said apprehension, it cannot be simply said that it is correct. To illustrate, in the event, the accused, while surrendering before the court, produces a copy of the FIR or any other document relating to the case and the identity of the person concerned is also not in doubt, he may get a prima facie satisfaction that his further detention is necessary. Similarly, as soon as the surrender of the accused, the investigating officer or any other police officer acting on his instructions may inform the Magistrate that the person who has surrendered before the court is the one who was involved in the case and that may be suffice for him to get the satisfaction that his further detention is necessary. These situations are only illustrative and not exhaustive. On the contrary, if no material at all is available for the Magistrate to get the satisfaction that the further detention of the person who has surrendered before him is necessary, then, he has no option but to record that his further detention is unnecessary and so, he has to simply forward him to the jurisdictional Magistrate who has jurisdiction either to try or to commit the case for trial to the court of session. 

19- If the further detention of the accused is not authorised by the Magistrate having no jurisdiction to try or to commit the case for trial on the surrender of the accused, then, the period of detention for the purpose of police custody or for the purpose of proviso to sub-section (2) of Section 167 of the Code of Criminal Procedure shall not start running from the date of surrender as the same shall start running from the date of remand order to be passed by the jurisdictional Magistrate. 

20- During the course of hearing, a doubt was raised that the Magistrate who has no jurisdiction over the case may find it practically difficult in forwarding the accused to the jurisdictional Magistrate because he may not know as to who the jurisdictional Magistrate is. The solution to this doubt is very simple. Under Section 12 of the Code of Criminal Procedure, the Chief Judicial Magistrate shall have jurisdiction through out the District and the Chief Metropolitan Magistrate shall have jurisdiction throughout the City. Therefore, the Magistrate before whom the accused has surrendered may forward the accused to the Chief Judicial Magistrate of the District wherein the case is under investigation or the Chief Metropolitan Magistrate, as the case may be, and the Chief Judicial Magistrate or the Chief Metropolitan Magistrate, as the case may be, in turn, will forward him to the jurisdictional Magistrate in the District. 

21- It is true that when an accused surrenders before a Magistrate who has no jurisdiction, the investigating officer may not know that the accused had surrendered. As a result, by the time when he seeks police custody, the fifteen days initial period of remand may be over making it difficult for him to get police custody. In order to obviate this practical difficulty, we are of the view that as soon as accepting the surrender of the accused, the learned Magistrate shall forward an intimation to the Superintendent of Police of his District or the Commissioner of Police, as the case may be, and the said Superintendent of Police or Commissioner of Police shall immediately pass the information to the Superintendent of the other District within whose jurisdiction the occurrence had taken place and the said Superintendent of Police shall, in turn, immediately forward this information to the investigating officer of the case. Similarly, the learned Magistrate before whom the accused has surrendered shall send an intimation to the Chief Judicial Magistrate of the District in which the crime had taken place. 

22- It was also argued that when the Magistrate finds that the further detention of the accused is unnecessary and if he simply forwards him to the Magistrate having jurisdiction over the case, it may be difficult for him to get police escort. But, we do not think that the Magistrate may have such a difficulty because on his direction, the Superintendent of Police of the said District shall arrange for police escort to take the accused from the Magistrate's court to the Magistrate to whom the accused is forwarded. 

23- Learned Counsel for the respondents has submitted that bail application can be entertained only when the accused was taken into custody after arrest. In Roshan Beevi & Ors. Vs. Joint Secretary to Government of Tamil Nadu & Ors., 1984 CrLJ 134, a three Judges' Bench of the Madras High Court dealt with the word 'arrest' and defined the meaning of the same as follows: 

14. Meaning of the term 'arrest' : The term 'arrest' is not defined either in the procedural Acts or in the various substantive Acts, though Section 46 Cr.P.C. Lays down the mode of arrest to be effected. 

15. The word 'arrest' is derived from the French 'Arrester' meaning 'to stop or stay' and signifies a restraint of the person. Lexicographically the meaning of the word 'arrest' is given in various dictionaries as follows:- 

a) In the Shorter Oxford English Dictionary, the various meanings of the word used under various contexts are given. Those which are relevant for our purpose read thus: 

"As verb : 5. gen. to catch, lay hold upon; 

6. Esp. to lay hold upon or apprehend by legal authority. 

As a noun : 3. The act of laying hold of; seizure. 4. Spec. The apprehending of one's person, in order to be forthcoming to answer an alleged or suspected crime. 

5. Custody, imprisonment." 

b) The Webster's Third New International Dictionary, Vol. I, at page 121, gives the meaning thus: 

"1. arrest............... 2. to catch or to take hold of; seize, capture. Specif: to take or keep in custody by authority of law. 

3. a: to catch and hold........................... 

2- arrest..................... 2. a: the act of seizing or taking hold of; seizure...........; the taking or detaining of a person in custody by authority of law; legal restraint of a person; custody, imprisonment.........................." 

c) Stroud's Judicial Dictionary, IV Edition, Volume I, at page 184, defines the word as follows: 

"'arrest', is when one is taken and restrained from his liberty." 

d) In the Bouvier's Law Dictionary, 1914 Edition, Vol. I, the meaning is given thus: 

"Arrest: to deprive a person of his liberty by legal authority. The taking, seizing or detaining the person of another, touching or putting hands upon him in the execution of process, or any act indicating an intention to arrest................" 

e) In the Dictionary of English Law (1959) by Earl Jowitt, Vol. I, the meaning of the word is given at page 152 as follows: 

" The restraining of the liberty of a man's person in order to compel obedience to the order of a Court of Justice, or to prevent the commission of a crime, or to ensure that a person charged or suspected of a crime may be forthcoming to answer it. To arrest a person is to restrain him of his liberty by some lawful authority. 

f) The Wharton's Law Lexicon, 12th Edition (1916) has defined the word 'arrest' in the above lines. 

g) Black's Law Dictionary, 5th Edition (1979), gives the following definitions: 

"Arrest: To deprive a person of his liberty by legal authority. Taking, under real or assumed authority, custody of another for the purpose of holding or detaining him to answer a criminal charge or civil demand.......... Arrest involves the authority to arrest, the assertion of that authority with the intent to effect of that authority with the intent to effect an arrest, and the restraint of the person to be arrested......All that is required for an 'arrest' is some act by officer indicating his intention to detain or take person into custody and thereby subject that person to the actual control and will of the officer, as formal declaration of arrest is required. 

h) 'A Dictionary of Law' by L.B. Curzon (1979) gives the meaning of the word 'arrest' at page 22, as follows: 

"To restrain and detain a person by lawful authority............." 

i) Mitra's Legal and Commercial Dictionary, Third Edition (1979), gives the following definition of the word at page 77: 

"Arrest means the restraining of the liberty of a man's person in order to compel obedience to the order of a Court of Justice, or to prevent the commission of crime, or to ensure that a person charged of suspected of a crime may be forthcoming to answer it." 

"Arrest consists of the actual seizure or touching of a person's body with a view to his detention. The mere pronouncement of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer. An arrest may be made either with or without warrant......." 

j) Words and Phrases legally defined, Second Edition (1969), Volume 1, at p. 114, gives the following definition: 

"Arrest consists of the actual seizure or touching of the person's body with a view to his detention. The mere pronouncement of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer........ Arrest....... is the apprehending or restraining of one's person, in order to be forthcoming to answer an alleged or suspected crime........" 

24- From the various definitions which we have extracted above, it is clear that the word 'arrest', when used in its ordinary and natural sense, means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in the taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. The essential elements to constitute an arrest in the above sense are that there must be an intent to arrest under the authority, accompanied by a seizure or detention of the person in the manner known to law, which is so understood by the person arrested. In this connection, a debatable question that arises is whether the mere taking into custody of a person by an authority empowered to arrest would amount to 'arrest' of that person and whether the terms 'arrest' and 'custody' are synonymous. 

25- The word "arrest" when used in its ordinary and natural sense means the apprehension or restraint or the deprivation of one's personal liberty. The question whether the person is under arrest or not, depends not on the legality of the arrest, but on whether he has been deprived of his personal liberty to go where he pleases. When used in the legal sense in the procedure connected with criminal offences, an arrest consists in taking into custody of another person under authority empowered by law, for the purpose of holding or detaining him to answer a criminal charge or of preventing the commission of a criminal offence. (Vide Directorate of Enforcement Vs. Deepak Mahajan & Anr., AIR 1994 SC 1775; and State of Haryana & Ors. Vs. Dinesh Kumar, 2008 AIR SCW 696.). 

26- Broadly speaking, arrests may be classified into two categories, namely, arrests under warrants issued by a Court and arrests otherwise than under such warrant. Warrant issued by a Court ex-facie sets out the reason for the arrest. It contains a clear accusation against the person to be arrested. Chaper Vi of Code of Criminal Procedure deals with arrest otherrwise than the warrants issued by the Court. In such a case of arrest without a warrant, the person arrested is accused of having committed or reasonably suspected to have committed or of being about to commit or of being likely to commit some offence or misconduct. Apart from the Code of Criminal Procedure there are several other statutes, which authorise the arrest of a person without the warrant issued by the Court. (Vide The State of Punjab Vs. Ajaib Singh & Anr., AIR 1953 SC 10). 

27- The language of Article 22 (1) and (2) indicates that the fundamental right conferred by it gives protection against such arrests as are effected otherwise than under a warrant issued by a Court on the allegation or accusation that the arrested person has, or is suspected to have committed, or is about or likely to commit an act of a criminal or quasi-criminal nature or some activity prejudicial to the public or the State interest. In other words, there is indication in the language of Article 22 (1) and (2) that it was designed to give protection against the act of the executive or other non-judicial authority. The physical restraint put upon an abducted person in the process of recovering and taking that person into custody without any allegation or accusation of any actual or suspected or apprehended commission by that person of any offence of a criminal or quasi-criminal nature or of any act prejudicial to the State or the public interest and delivery of that person to the custody of the Officer-in-charge of the nearest camp under Section. 4 of the impugned Act, cannot be regarded as arrest and detention within the meaning of Article 22 (1) and (2). (Vide State of Punjab Vs. Ajaib Singh, AIR 1953 SC 10). 

28- An arrest made for a civil debt in the process or the mode prescribed by law for recovery of arrears of land revenue cannot be considered to be an 'arrest' for the purposes of Article 22 of the Constitution. This Article envisages arrest in connection with any allegation or accusation of any actual or suspected or apprehended commission of an offence of a criminal or a quasi-criminal nature. (Vide Collector of Malabar Vs. Erimmal Ebrahim Hajee, AIR 1957 SC 688). 

29- Section 167(2) Cr.P.C. gives the power of remand only to the Magistrate not the Sessions Judge. Further proviso 167(2) Cr.P.C. provides that the Magistrate had power to an accused person to be forwarded under the Section whether he has or has not jurisdiction to trial the case from time to time authoriz the detention of the accused in such custody as such Magistrate thinks fit for a term not acceding 15 days in the whole and if he has no jurisdiction to trial the case or commit it for trial and considers further detention unnecessary, he may order the accused to be forwarded to the Magistrate having such jurisdiction. The provisions is very specific and it specified that Magistrate had power under 167 Cr.P.C., whether he has or has not jurisdiction but in case if he has no jurisdiction to trial the case or commit it for trial and considers further detention unnecessary he may forward the accused to a Magistrate having such jurisdiction. 

30- Learned Counsel for the respondents has submitted that firstly the Sessions Judge Fatehpur has no jurisdiction because he was not exercising the power of Magistrate, secondly even if the Magistrate has or has not jurisdiction if it is found the detention unnecessary the only option available to the Magistrate was to forward the accused to a Magistrate having jurisdiction. 

31- Learned Counsel for the petitioner has relied on U.P. Amendment inserted as 167(A) vide U.P. Act No.-18 of 1977 which provides the procedure of arrest by Magistrate and says that for the avoidance of doubt it has been declared that the provisions of Section 167 shall, so far as may be applied also in relation to any person arrested by, or under any order or direction of, a Magistrate. 

It has been contended by learned Counsel for the respondent that 167(A) empowers the Magistrate and not the Sessions Judge. 

32- The creation of Sessions Judge is provided in Section-9 of the Cr.P.C. which provides that the State Government shall establish a Court of Sessions for every Sessions Division. Sub Section-4 further provides that the Sessions Judge of one Sessions Division may be appointed by the High Court to be also and Additional Sessions Judge of a another division, and in such case he may sit for the disposal of such cases at such place or places in the other division as the High Court may direct. Here is not the case of authorization by the High Court by any notification to dispose of the cases of other division by the delinquent officer. 

33- Learned Counsel for the petitioner has relied Suneel Agarwal Versus State of U.P. 1992 U.P. Criminal Rulings 413 and Ranveer Singh Versus Deshraj Singh Chauhan 1983 Allahabad Criminal Reports 294, which has been discussed by the Enquiry Judge in his report and it was found that the case of the petitioner does not support by the above citations and it was observed that the Sessions Judge had no jurisdiction to take the accused into custody or to entertain the bail application in another Sessions Division. It has also been discussed that the provisions of Section 437 and 439 Cr.P.C. there is a use of words, a Court or a Court of Sessions which means the competent Court having territorial jurisdiction concerning the offence, if these words to be interpreted to include any Court of Sessions and not only the Court within whose jurisdiction the offence was committed, it would lead to an anarchy and chaos in the matter of surrender and exercising the powers of bail from any Sessions Court, resulting choice of Forum or Bench hunting. Learned Enquiry Judge has also discussed the decision in Niranjan Singh Versus Prabhakar Rajaram reported in 1980 SCC Criminal 508 and found that it was not applicable in the present case. 

34- The Enquiry Judge in his report has found that when on 4th March 1994 the surrender application was moved before Sessions Judge Fatehpur accused Sanjay Somani was not physically present and was not confined in district hospital Fatehpur. It has been argued that the matter related to Kanpur Sessions Division and the Court at Fatehpur has no territorial jurisdiction in the matter. Without verifying the facts from the police report or otherwise accused Sanjay Somani, who was said to be suffering from chest pain and admitted in district hospital Fatehpur, the delinquent officer entertained, without any lawful authority or power, the surrender application and allowed the bail application on the same day even when the State Counsel raised the objections regarding territorial jurisdiction to entertain the surrender application as well as the bail application. It was found in the enquiry report that the delinquent official illegally and without jurisdiction entertained the bail application of accused Sanjay Somani without putting any restrain on the movement of the accused to indicate that he was under custody and without ensuring the very presence of the accused in the Court. 

35- Learned Counsel for the respondents had argued that the presence of the accused before the Court can be ascertained by his signature or thumb impression on the remand sheet which is generally maintained by the Court Moharir present in the Court who not only put a symbolic restrain on the movement of the person taken into custody but also verifies his name from the First Information Report and after taking the accused into custody he informs the Senior Superintendent of Police and Investigating Officer concerned. This procedure has not been adopted by the then Sessions Judge while entertaining the surrender application. Though the jurisdiction to entertain the surrender application on the ground of territorial jurisdiction and on the ground of being Sessions Judge has also been challenged by the respondent. 

36- Learned Counsel for the respondent has also argued that the circular with regard to provide a reasonable notice or opportunity of hearing to the District Government Counsel before passing orders on bail application, keeping in mind the number of days required for obtaining instructions from the Police Station where it becomes necessary for the State to file affidavit during the course of hearing and to provide further time was not considered by the officer concerned. It has been narrated in the enquiry report that the concerned Government Advocate has raised the objection regarding territorial jurisdiction to entertain the surrender application as well as the bail application and it has also been discussed that mere fact that the acting D.G.C. was present in Court would not absolve the Sessions Judge from complying with the provisions of Section 439 of Cr.P.C. and the direction issued in the circular letters. 

37- The facts as discussed, enquiry report reveals that while entertaining both the bail applications, the application were moved directly in the Court of Sessions of an another division without first approaching the Court of Magistrate. A question has also been raised by learned Counsel for the respondent that the problem of chest pain has raised in the bail application relating to the accused Sanjay Somani was doubtful because of the age of the accused being 26 years and secondly he is originally resident of District Kanpur and he may avail better medical facilities at Kanpur or Lucknow where Medical Colleges are available, instead of adopting recourse of medical treatment at Fatehpur district hospital and that too inspite of fact that the complaint of chest pain on 3.3.1994 he had been reported to be discharged on 4.3.1994 but he remained in the district hospital Fatehpur till 7.3.1994 and moved another bail application for bail. It is alleged and discussed in the enquiry report that the conduct of the accused, instead of taking medical treatment at Kanpur or Lucknow he adopted the facilities at Fatehpur, was intended with mala-fide to move an application for surrender and bail which was preconcerted and premeditated. 

38- Further it was found that after release of the accused on personal bond and filing sureties, the accused was said to be released without filing or verifying or accepting the personal bond. The Enquiry Committee found that the personal bond filed in bail application no.-255/2014 on its face value, shows that it was accepted by the officer concerned on 9.3.1994. The enquiry Committee had found that when the personal bond was executed on 9.3.1994, how the accused was released on bail on 4.3.1994. The procedure as adopted by the learned Counsel for the parties as prevalent in the District Courts is, when the accused is taken into custody remand sheet is prepared by the Court Mohareer attached to the Court and after putting signature of the accused on the remand sheet, the accused is put under restrained and a warrant under Section 167 is prepared as per Rules. When the bail is granted, order is sent to the office concerned where bond is generally filed before the clerk concerned who after verification of the bond place before the Court and when it is accepted, the Court Moharer concerned who has taken the accused into custody, after verifying all the records releases the accused. The procedure has not been adopted by the Court concerned. 

39- Learned Counsel for the petitioner has submitted that the character role and A.C.R. of the delinquent official was not placed before the competent authority at the time of considering the quantum of punishment. 

40- Learned Counsel for the respondents has submitted that it is the internal work of the High Court and all the relevant records, relating to the delinquent are placed before the competent authority while deciding the matter. By filing the counter affidavit on behalf of High Court Assistant Registrar Litigation has submitted that serious several complaints against the petitioner involving his conduct while discharging judicial duties and complaints with the allegations of corruption, favourism and misuse of powers were received while the petitioner was posted as District Judge Basti and in the matters relating to Basti Sessions Division, preliminary enquiry was conducted by one of the sitting Judge of the High Court who submitted his report stating therein serious complaints and with the findings that the complaints appears to be correct prima-facie and the matter requires full fledged departmental disciplinary proceedings. The above enquiry report was placed before the Administrative Committee and disciplinary enquiry was initiated against the officer concerned/petitioner. The second enquiry relates to the present controversy which took place on 4.3.1994 and 7.3.1994 relating to granting of bail while working as Sessions Judge Fatehpur. 

41- It has been argued by the learned Counsel for the respondent that the conclusion arrived by the Enquiry Officer is based on material on record. The Enquiry Officer was not supposed to peruse the character role of the petitioner as he was not the appointing authority of the petitioner and has not proposed any punishment. The petitioner /delinquent official was given full opportunity of hearing and after completion of enquiry report, a copy of enquiry report was also served on the delinquent officer and the objection raised and filed by the delinquent official was placed before the competent authority which was considered while considering the quantum of punishment. 

42- Learned Counsel for the petitioner has submitted that the enquiry Judge also participated in the meeting of the Administrative Committee and full Court meeting and thus the order impugned cannot be said to be justified in the eyes of law. Mere participation of the Enquiry Committee being Member of the Administrative Committee or the full Court meeting does not preclude the competent authority to take any decision or pass any order. Article 235 provides the control over District Courts including all persons holding any post inferior to the post of District Judge including the District Judge. The Allahabad High Court Rules (Rules of the Court 1992) Chapter-3 Rule 4 ( C) provides the matter for the administrative Committee Rules 3 and 4 provides as follows:- 

"3. Consideration of the preliminary report in disciplinary matters and directing holding of disciplinary enquiry against officers of the subordinate judiciary. 

4. Suspension of officers of the subordinate judiciary pending disciplinary enquiry. " 

43- Chapter 3 Rule 4(d) provides the matter for the full Court as follows:- 

"3. Termination of services of temporary officers and probationers of the subordinate judiciary. 

4. Subject to sub-clause 5 to clause B and sub -clause 4 (a) to clause C, consideration of final reports of disciplinary enquiries in respect of officers of the subordinate judiciary and taking decision as to punishment and further action. 

44- In light of above provisions the administrative Committee and the full Court, were well within its jurisdiction to pass the order for initiating the disciplinary enquiry or to pass order of suspension or to pass an order relating to termination of services or taking any decision on the final report of the Disciplinary Enquiry in respect of the officers of the subordinate judiciary. Mere participation of the Enquiry Committee in the A.C. or the full Court by virtue of being Member of A.C. or full Court does in no way makes the order faulty specially when there is observation that the Enquiry Judge abstrained from participating in the present matter. 

45- It is settled preposition of law that once the employer has lost the confidence in the employee and the bona fide loss of confidence is affirmed, the order of punishment must be considered to be immune from challenge, for the reason that discharging the office of trust and confidence requires absolute integrity, and in a case of loss of confidence, reinstatement cannot be directed. (Vide Air India Corporation Bombay Vs. V.A. Ravellow, AIR 1972 SC 1343; Francis Kalein & Co. Pvt. Ltd. Vs. Their Workmen, AIR 1971 SC 2414; and Bharat Heavy Electricals Ltd. Vs. M. Chandrashekhar Reddy & Ors., 2005 AIR SCW 1232). In Kanhaiyalal Agrawal & Ors. Vs. Factory Manager, Gwaliar Sugar Co. Ltd., (2001) 9 SCC 609, the Hon'ble Supreme Court laid down the test for loss of confidence to find out as to whether there was bona fide loss of confidence in the employee, observing that, (i) the man is holding the position of trust and confidence; (ii) by abusing such position, he commits act which results in forfeiting the same; and (iii) to continue him in service/establishment would be embarrassing and inconvenient to the employer, or would be detrimental to the discipline or security of the establishment. Loss of confidence cannot be subjective, based upon the mind of the management. Objective facts which would lead to a definite inference of apprehension in the mind of the management, regarding trustworthiness or reliability of the employee, must be alleged and proved. 

46- In Sudhir Vishnu Panvalkar Vs. Bank of India, AIR 1997 SC 2249, the Apex Court held as under:- 

"The only ground that survives for our consideration is as to whether the Bank was justified in terminating the services of the appellant on the ground of loss of confidence and in the facts and circumstances of the case, whether any such inquiry was necessitated. From the material placed on record before us, it is quite clear that the appellant was involved in misappropriation of Society's funds. The proceedings initiated under Section 88 of the Act went up to the Maharashtra Co-operative Tribunal and after contest by the parties, the Tribunal held the appellant guilty of certain charges involving moral turpitude relating to misappropriation of society's funds. Mr. Singhvi, however, urged that some of these documents were not the subject-matter of proceedings before the High Court and, therefore, they cannot be relied upon by the Bank in this appeal. He also urged that these documents/papers are from the proceedings before the Registrar and that they have no bearing upon the issue involved in this case. He also urged that the Bank had not produced the entire correspondence before this Court for its appreciation and proper decision. Ordinarily, this plea could have been sustained but no stateable reasons could be given on behalf of the appellant nor the correctness thereof could be challenged. All these documents were filed by the Bank along with its counter-affidavit of which the copy and the documents were furnished to the appellant long time back. Although, the rejoinder was filed by the appellant but he could not dispute the correctness of all these documents. It is in these circumstances, we are of the view that these documents could be relied upon by the Bank to justify the order of termination on the ground of loss of confidence. On perusal of the material produced before us, we are of the opinion that the order of termination passed by the Bank does not suffer from any vice and the Division Bench of the High Court was right in upholding the termination order." 

47- In State Bank of India Vs. Bela Bagchi & Ors., (2005) 7 SCC 435, the Hon'ble Supreme Court repelled the contention that even if by the misconduct of the employee the employer does not suffer any financial loss, he can be removed from service in a case of loss of confidence, particularly, in the services of the institutions where the higher standard of honesty and integrity is required as he has to deal with the public and crime against society. Every employee is required to take all possible steps to protect the interests of the institution and to discharge his duties with utmost integrity, honesty, devotion and diligence and to do nothing which is unbecoming of a judicial officer. Good conduct and discipline are inseparable from the functioning of every employee. Whether the charges are of the grave nature and not merely casual, the major punishment is to be inflicted even if there is absence of pecuniary loss. While deciding the said case, reliance has been placed upon its earlier judgment in Disciplinary Authority-cum-Regional Manager Vs. Nikunja Bihari Patnaik, (1996) 9 SCC 69. 

48- The next question which deserves attention is the issue of interference on the quantum of punishment. The same has been considered by the Hon'ble Supreme Court in a catena of judgments, and it was held that if the punishment awarded is disproportionate to the gravity of the misconduct, it would be arbitrary, and thus, would violate the mandate of Article 14 of the Constitution. (Vide Bhagat Ram Vs. State of Himachal Pradesh & Ors., AIR 1983 SC 454; Ranjit Thakur Vs. Union of India & Ors., AIR 1987 SC 2386; Union of India & Ors. Vs. Giriraj Sharma, AIR 1994 SC 215; S.K. Giri Vs. Home Secretary, Ministry of Home Affairs & Ors., 1995 Suppl (3) SCC 519; Bishan Singh & Ors. Vs. State of Punjab & Anr., (1996) 10 SCC 461; B.C. Chaturvedi Vs. Union of India & Ors., AIR 1996 SC 484; Bharat Forge Co. Ltd. Vs. Uttam Manohar Nakate, (2005) 2 SCC 489; Mahindra & Mahindra Vs. N.V. Narmada, (2005) 3 SCC 134; and Muriadih Colliery Vs. Bihar Colliery Kamgar Union & Ors., (2005) 3 SCC 331. 

49- In Ranjeet Thakur (supra), the Hon'ble Apex Court observed as under:- 

"But the sentence has to suit the offence and the offender. It should not be vindictive or unduly harsh. It should not be so disproportionate to the offence as to shock the conscience and amount in itself to conclusive evidence of bias. The doctrine of proportionality, as part of the concept of judicial review, would ensure that even on the aspect, which is otherwise, within the exclusive province of the Court Martial, if the decision of the court even as to sentence is an outrageous defiance of logic, then the sentence would not be immune from correction. In the present case, the punishment is so stringently disproportionate as to call for and justify interference. It cannot be allowed to remain uncorrected in judicial review." 

50- The said judgment has been approved and followed by the Apex Court in Union of India & Ors. Vs. G. Ganayutham, AIR 1997 SC 3387, and after examining elaborately the concept of reasonableness, rationality and proportionality, the same view has been reiterated. 

51- In B.C. Chaturvedi (supra), after examining various earlier decisions of the Supreme Court, the Court observed that in exercise of the powers of judicial review, the Court cannot "normally" substitute its own conclusion or penalty. However, if the penalty imposed by an Authority "shocks the conscience" of the Court, it would appropriately mould the relief either directing the Authority to reconsider the penalty imposed and in exceptional and rare cases, in order to shorten the litigation, itself, impose appropriate punishment with cogent reasons in support thereof. While examining the issue of proportionality, Court can also consider the circumstances under which the misconduct was committed. In a given case, the prevailing circumstances might have forced him to do so, though he had no intention to do so. (Vide Giriraj Sharma (supra). The Court may further examine the effect, if order is set aside or substituted by some other penalty. 

52- In G. Ganayutham (supra), the Apex Court has considered the entire law on the subject and compared the Indian Law with English, Australian and Canadian Laws, and held that in case the Court comes to the conclusion that the punishment awarded is disproportionate or the Disciplinary Authority was irrational in imposing the punishment, the punishment cannot be quashed as even then the matter has to be remitted back to the appropriate authority for reconsideration and it is only in very rare cases that the Court might- to shorten the litigation-think of substituting its own view as to the quantum of punishment in place of punishment awarded by the Competent Authority. In Aniltej Singh Dhaliwal (supra); U.P.S.R.T.C. & Ors. Vs. A.K. Parul, (1998) 9 SCC 416; and Teri Oat Estates (P) Ltd. Vs. U.T., Chandigarh & Ors., (2004) 2 SCC 130, the Apex Court has taken the same view. 

53- In Mithilesh Singh Vs. Union of India & Ors., AIR 2003 SC 1145, the Supreme Court held that absence from duty, merely sending the leave application without getting it sanctioned, by a member of disciplined force, posted in terrorist affected area, dismissal was not a disproportionate punishment. 

54- In V. Ramana Vs. A.P.S.R.T.C. & Ors., (2005) 7 SCC 338, the Hon'ble Supreme Court reconsidered the whole issue, compared the Indian Law with English Law on judicial review and after placing reliance on large number of judgments, came to the conclusion that every administrative order should be rational and reasonable and the order should not suffer from any arbitrariness. The scope of judicial review as to the quantum of punishment is permissible only if it is found that it is not commensurate with the gravity of the charges and if the Court comes to the conclusion that the scope of judicial review as to the quantum of punishment is permissible only if it is found to be "shocking to the conscious of the Court, in the sense that it was in defiance of logic or moral standards." In a normal course, if the punishment imposed is shockingly disproportionate, it would be appropriate to direct the Disciplinary Authority to reconsider the penalty imposed. However, in order to shorten the litigation, it may, in exceptional and rare cases, itself can impose appropriate punishment by recording cogent reasons in support thereof. 

55- Learned Counsel for the petitioner has submitted that the enquiry could not be initiated suo-motu without any complaint. The competent authority on the information so, received on administrative side had taken to initiate enquiry and after enquiry the allegations were found correct. 

56- Learned Counsel for the respondents has relied on 2006 SCC page 294 Jasbir Singh vs. State of Punjab in which Hon'ble Apex Court has held as under:- 

The power of superintendence over all the subordinate courts and tribunals is given to the High Court under Article 227 of the Constitution. So also, under Article 235 of the Constitution, the High Courts exercise control over all the district courts and courts subordinate thereto on all matters relating to posting, promotion and grant of leave to officers belonging to the judicial service of the State. The power of superintendence conferred on the High Court under Article 227 over all the courts and tribunals throughout the territory of the State is both of administrative and judicial nature and it could be exercised suo motu also. However, such power of superintendence does not imply that the High Courts can influence the subordinate judiciary to pass any order or judgment in a particular manner. The extraordinary power under Article 227 can only be used by the High Courts to ensure that the subordinate courts function within the limits of their authority. 

57- This power of superintendence conferred by Article 227 is, as pointed out by Harries, C.J., in - Dalmia Jain Airways Ltd. v. Sukumar Mukherjee MANU/WB/0233/1950MANU/ WB/0233/ 1950 :AIR1951Cal193 , to be exercised most sparingly and only in appropriate cases in order to keep the Subordinate Courts within the bounds of their authority and not for correcting mere errors. 

58- This view expressed was later followed by this Court in Timbak v. Ram Chandra MANU/SC/0064/1977MANU/ SC/0064/1977 : AIR1977SC1222 , by Justice Jaswant Singh, at page 1225: 

" It is also well established that it is only when an order of the Tribunal is violative of the fundamental basic principles of justice and fair play or a patent or flagrant error in the procedure of law has crept or where the order passed results in manifest injustice, that a court can justifiably intervene under Article 227 of the Constitution. 

59- In Mohd. Yunus v. Mohd. Mustaqim MANU/SC/0066/ 1983MANU/SC/0066/1983 : [1984]1SCR211 , this Court held: 

The supervisory jurisdiction conferred on the High Court's under Article 227 of the Constitution is limited "to seeing that an inferior Court or Tribunal functions within the limits of its authority.." 

60- Learned Counsel for the respondents has also relied on 2014 Legal SC (230) Sundeep Kumar Bafna vs. State of Maharashtra and Anr., on the matter of custody in which the Hon'ble Apex Court has held has follows:- 

The pandect providing for bail is Chapter XXXIII comprises Sections 436 to 450 of the Code of Criminal Procedure, of which Sections 437 and 439 are currently critical. Suffice it to state that Section 438 which deals with directions for grant of bail to persons apprehending arrest does not mandate either the presence of the applicant in Court or for his being in custody. Section 437, inter alia, provides that if any person accused of, or suspected of the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or if such person appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail in certain circumstances. 

61- For facility of reference, Sections 437 and 439, both covering the grant of regular bail in non-bailable offences are reproduced hereunder. Section 438 has been ignored because it is the composite provision dealing only with the grant of anticipatory bail. 

" 437. When bail may be taken in case of non-bailable offence.-(1) When any person accused of, or suspected of, the commission of any non-bailable offence is arrested or detained without warrant by an officer in charge of a police station or appears or is brought before a Court other than the High Court or Court of Session, he may be released on bail, but- 

(i) such person shall not be so released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life; 

(ii) such person shall not be so released if such offence is a cognizable offence and he had been previously convicted of an offence punishable with death, imprisonment for life or imprisonment for seven years or more, or he had been previously convicted on two or more occasions of a cognizable offence punishable with imprisonment for three years or more but not less than seven years: 

Provided that the Court may direct that a person referred to in Clause (i) or Clause (ii) be released on bail if such person is under the age of sixteen years or is a woman or is sick or infirm: 

Provided further that the Court may also direct that a person referred to in Clause (ii) be released on bail if it is satisfied that it is just and proper so to do for any other special reason: 

Provided also that the mere fact that an accused person may be required for being identified by witnesses during investigation shall not be sufficient ground for refusing to grant bail if he is otherwise entitled to be released on bail and gives an undertaking that he shall comply with such directions as may be given by the Court: 

Provided also that no person shall, if the offence alleged to have been committed by him is punishable with death, imprisonment for life, or imprisonment for seven years or more, be released on bail by the Court under this Sub-section without giving an opportunity of hearing to the Public Prosecutor. 

(2) If it appears to such officer or Court at any stage of the investigation, inquiry or trial, as the case may be, that there are not reasonable grounds for believing that the accused has committed a non-bailable offence, but that there are sufficient grounds for further inquiry into his guilt, the accused shall, subject to the provisions of Section 446A and pending such inquiry, be released on bail, or at the discretion of such officer or Court, on the execution by him of a bond without sureties for his appearance as hereinafter provided. 

(3) When a person accused or suspected of the commission of an offence punishable with imprisonment which may extend to seven years or more or of an offence under Chapter VI, Chapter XVI or Chapter XVII of the Indian Penal Code (45 of 1860) or abetment of, or conspiracy or attempt to commit, any such offence, is released on bail under Sub-section (1)-the Court shall impose the conditions- 

(a) that such person shall attend in accordance with the conditions of the bond executed under this Chapter, 

(b) that such person shall not commit an offence similar to the offence of which he is accused, or suspected, of the commission of which he is suspected, and 

(c) that such person shall not directly or indirectly make any inducement, threat or promise to any person acquainted with the facts of the case so as to dissuade him from disclosing such facts to the Court or to any police officer or tamper with the evidence, and may also impose, in the interests of justice, such other conditions as it considers necessary. 

(4) An officer or a Court releasing any person on bail under Sub-section (1) or Sub-section (2), shall record in writing his or its reasons or special reasons for so doing. 

(5) Any Court which has released a person on bail under Sub-section (1) or Sub-section (2), may, if it considers it necessary so to do, direct that such person be arrested and commit him to custody. 

(6) If, in any case triable by a Magistrate, the trial of a person accused of any non-bailable offence is not concluded within a period of sixty days from the first date fixed for taking evidence in the case, such person shall, if he is in custody during the whole of the said period, be released on bail to the satisfaction of the Magistrate, unless for reasons to be recorded in writing, the Magistrate otherwise directs. 

(7) If, at any time after the conclusion of the trial of a person accused of a non-bailable offence and before judgment is delivered, the Court is of opinion that there are reasonable grounds for believing that the accused is not guilty of any such offence, it shall release the accused, if he is in custody, on the execution by him of a bond without sureties for his appearance to hear judgment delivered. 

62- 439. Special powers of High Court or Court of Session regarding bail- 

(1) A High Court or Court of Session may direct- 

(a) that any person accused of an offence and in custody be released on bail, and if the offence is of the nature specified in Sub-section (3) of Section 437, may impose any condition which it considers necessary for the purposes mentioned in that Sub-section; 

(b) that any condition imposed by a Magistrate when releasing any person on bail be set aside or modified: 

Provided that the High Court or the Court of Session shall, before granting bail to a person who is accused of an offence which is triable exclusively by the Court of Session or which, though not so triable, is punishable with imprisonment for life, give notice of the application for bail to the Public Prosecutor unless it is, for reasons to be recorded in writing, of the opinion that it is not practicable to give such notice. 

(2) A High Court or Court of Session may direct that any person who has been released on bail under this Chapter be arrested and commit him to custody." 

63- Article 21 of the Constitution states that no person shall be deprived of his life or personal liberty except according to procedure established by law. We are immediately reminded of three sentences from the Constitution Bench decision in P.S.R. Sadhanantham v. Arunachalam MANU/SC/0083/1980MANU/ SC/0083/1980 : (1980) 3 SCC 141, which we appreciate as poetry in prose-"Article 21, in its sublime brevity, guards human liberty by insisting on the prescription of procedure established by law, not fiat as sine qua non for deprivation of personal freedom. And those procedures so established must be fair, not fanciful, nor formal nor flimsy, as laid down in Maneka Gandhi case. So, it is axiomatic that our Constitutional jurisprudence mandates the State not to deprive a person of his personal liberty without adherence to fair procedure laid down by law". Therefore, it seems to us that constriction or curtailment of personal liberty cannot be justified by a conjectural dialectic. The only restriction allowed as a general principle of law common to all legal systems is the period of 24 hours post-arrest on the expiry of which an accused must mandatorily be produced in a Court so that his remand or bail can be judicially considered. 

64- Some poignant particulars of Section 437 Code of Criminal Procedure may be pinpointed. First, whilst Section 497(1) of the old Code alluded to an accused being "brought before a Court", the present provision postulates the accused being "brought before a Court other than the High Court or a Court of Session" in respect of the commission of any non-bailable offence. As observed in Gurcharan Singh v. State MANU/SC/0420/1978MANU/SC/0420/1978 : (1978) 1 SCC 118, there is no provision in the Code of Criminal Procedure dealing with the production of an accused before the Court of Session or the High Court. The Legislature could have easily enunciated, by use of exclusionary or exclusive terminology, that the superior Courts of Sessions and High Court are bereft of this jurisdiction or if they were so empowered under the Old Code now stood denuded thereof. Our understanding is in conformity with Gurcharan Singh, as perforce it must. The scheme of the Code of Criminal Procedure plainly provides that bail will not be extended to a person accused of the commission of a non-bailable offence punishable with death or imprisonment for life, unless it is apparent to such a Court that it is incredible or beyond the realm of reasonable doubt that the accused is guilty. The enquiry of the Magistrate placed in this position would be akin to what is envisaged in State of Haryana v. Bhajan Lal MANU/SC/0115/1992MANU/SC/0115/1992 : 1992 (Supp) 1 SCC 335, that is, the alleged complicity of the accused should, on the factual matrix then presented or prevailing, lead to the overwhelming, incontrovertible and clear conclusion of his innocence. The Code of Criminal Procedure severely curtails the powers of the Magistrate while leaving that of the Court of Session and the High Court untouched and unfettered. It appears to us that this is the only logical conclusion that can be arrived at on a conjoint consideration of Sections 437 and 439 of the Code of Criminal Procedure. 

65- Obviously, in order to complete the picture so far as concerns the powers and limitations thereto of the Court of Session and the High Court, Section 439 would have to be carefully considered. And when this is done, it will at once be evident that the Code of Criminal Procedure has placed an embargo against granting relief to an accused, (couched by us in the negative), if he is not in custody. It seems to us that any persisting ambivalence or doubt stands dispelled by the proviso to this Section, which mandates only that the Public Prosecutor should be put on notice. We have not found any provision in the Code of Criminal Procedure or elsewhere, nor have any been brought to our ken, curtailing the power of either of the superior Courts to entertain and decide pleas for bail. Furthermore, it is incongruent that in the face of the Magistrate being virtually disempowered to grant bail in the event of detention or arrest without warrant of any person accused of or suspected of the commission of any non-bailable offence punishable by death or imprisonment for life, no Court is enabled to extend him succour. Like the science of physics, law also abhors the existence of a vacuum, as is adequately adumbrated by the common law maxim, viz. 'where there is a right there is a remedy'. The universal right of personal liberty emblazoned by Article 21 of our Constitution, being fundamental to the very existence of not only to a citizen of India but to every person, cannot be trifled with merely on a presumptive plane. 

66- We should also keep in perspective the fact that Parliament has carried out amendments to this pandect comprising Sections 437 to 439, and, therefore, predicates on the well established principles of interpretation of statutes that what is not plainly evident from their reading, was never intended to be incorporated into law. Some salient features of these provisions are that whilst Section 437 contemplates that a person has to be accused or suspect of a non-bailable offence and consequently arrested or detained without warrant, Section 439 empowers the Session Court or High Court to grant bail if such a person is in custody. The difference of language manifests the sublime differentiation in the two provisions, and, therefore, there is no justification in giving the word 'custody' the same or closely similar meaning and content as arrest or detention. Furthermore, while Section 437 severally curtails the power of the Magistrate to grant bail in context of the commission of non-bailable offences punishable with death or imprisonment for life, the two higher Courts have only the procedural requirement of giving notice of the Bail application to the Public Prosecutor, which requirement is also ignorable if circumstances so demand. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. Indeed, the only complicity that can be contemplated is the conundrum of 'Committal of cases to the Court of Session' because of a possible hiatus created by the Code of Criminal Procedure. 

67- Unfortunately, the terms 'custody', 'detention' or 'arrest' have not been defined in the Code of Criminal Procedure, and we must resort to few dictionaries to appreciate their contours in ordinary and legal parlance. The Oxford Dictionary (online) defines custody as imprisonment, detention, confinement, incarceration, internment, captivity; remand, duress, and durance. The Cambridge Dictionary (online) explains 'custody' as the state of being kept in prison, especially while waiting to go to court for trial. Longman Dictionary (online) defines 'custody' as 'when someone is kept in prison until they go to court, because the police think they have committed a crime'. Chambers Dictionary (online) clarifies that custody is 'the condition of being held by the police; arrest or imprisonment; to take someone into custody to arrest them'. Chambers' Thesaurus supplies several synonyms, such as detention, confinement, imprisonment, captivity, arrest, formal incarceration. The Collins Cobuild English Dictionary for Advance Learners states in terms of that someone who is in custody or has been taken into custody or has been arrested and is being kept in prison until they get tried in a court or if someone is being held in a particular type of custody, they are being kept in a place that is similar to a prison. The Shorter Oxford English Dictionary postulates the presence of confinement, imprisonment, durance and this feature is totally absent in the factual matrix before us. The Corpus Juris Secundum under the topic of 'Escape & Related Offenses; Rescue' adumbrates that 'Custody, within the meaning of statutes defining the crime, consists of the detention or restraint of a person against his or her will, or of the exercise of control over another to confine the other person within certain physical limits or a restriction of ability or freedom of movement.' This is how 'Custody' is dealt with in Black's Law Dictionary, (9th ed. 2009): 

68- Custody-The care and control of a thing or person. The keeping, guarding, care, watch, inspection, preservation or security of a thing, carrying with it the idea of the thing being within the immediate personal care and control of the person to whose custody it is subjected. Immediate charge and control, and not the final, absolute control of ownership, implying responsibility for the protection and preservation of the thing in custody. Also the detainer of a man's person by virtue of lawful process or authority. 

69- The term is very elastic and may mean actual imprisonment or physical detention or mere power, legal or physical, of imprisoning or of taking manual possession. Term "custody" within statute requiring that Petitioner be "in custody" to be entitled to federal habeas corpus relief does not necessarily mean actual physical detention in jail or prison but rather is synonymous with restraint of liberty. U.S. ex rel. Wirtz v. Sheehan, D.C. Wis 319 F. Supp. 146, 147. Accordingly, persons on probation or released on own recognizance have been held to be "in custody" for purposes of habeas corpus proceedings. 

70- A perusal of the dictionaries thus discloses that the concept that is created is the controlling of a person's liberty in the course of a criminal investigation, or curtailing in a substantial or significant manner a person's freedom of action. Our attention has been drawn, in the course of Rejoinder arguments to the judgment of the Full Bench of the High Court of Madras in Roshan Beevi v. Joint Secretary MANU/TN/0028/1983MANU /TN/0028/ 1983 : 1984 (15) ELT 289 (Mad), as also to the decision of the Court in Directorate of Enforcement v. Deepak Mahajan MANU/SC/0422/1994MANU/ SC/0422/1994 : (1994) 3 SCC 440; in view of the composition of both the Benches, reference to the former is otiose. Had we been called upon to peruse Deepak Mahajan earlier, we may not have considered it necessary to undertake a study of several Dictionaries, since it is a convenient and comprehensive compendium on the meaning of arrest, detention and custody. 

71- Courts in Australia, Canada, U.K. and U.S. have predicated in great measure, their decisions on paragraph 99 from Vol. II Halsbury's Laws of England (4th Edition) which states that-"Arrest consists of the actual seizure or touching of a person's body with a view to his detention. The mere pronouncing of words of arrest is not an arrest, unless the person sought to be arrested submits to the process and goes with the arresting officer". The US Supreme Court has been called upon to explicate the concept of custody on a number of occasions, where, coincidentally, the plea that was proffered was the failure of the police to administer the Miranda caution, i.e. of apprising the detainee of his Constitutional rights. In Miranda v. Arizona MANU/USSC/0221/1966 : 384 US 436 (1966), custodial interrogation has been said to mean "questioning initiated by law enforcement officers after a person has been taken into custody or otherwise deprived of his freedom of action in any significant way". In Minnesota v. Murphy MANU/USSC/0222/1984 : 465 US 420 (1984), it was opined by the U.S. Supreme Court that since "no formal arrest or restraint on freedom of movement of the degree associated with formal arrest" had transpired, the Miranda doctrine had not become operative. In R. v. Whitfield 1969 Careswellont 138, the Supreme Court of Canada was called upon to decide whether the police officer, who directed the accused therein to stop the car and while seizing him by the shirt said "you are under arrest:", could be said to have been "custodially arrested" when the accused managed to sped away. The plurality of the Supreme Court declined to draw any distinction between an arrest amounting to custody and a mere or bare arrest and held that the accused was not arrested and thus could not have been guilty of "escaping from lawful custody". More recently, the Supreme Court of Canada has clarified in R. v. Suberu [2009] S.C.J. No. 33 that detention transpired only upon the interaction having the consequence of a significant deprivation of liberty. Further, in Berkemer v. McCarty MANU/USSC/0192/1984 : 468 U.S. 420 (1984), a roadside questioning of a motorist detained pursuant to a routine traffic stop was not seen as analogous to custodial interrogation requiring adherence to Miranda rules. 

72- It appears to us from the above analysis that custody, detention and arrest are sequentially cognate concepts. On the occurrence of a crime, the police is likely to carry out the investigative interrogation of a person, in the course of which the liberty of that individual is not impaired, suspects are then preferred by the police to undergo custodial interrogation during which their liberty is impeded and encroached upon. If grave suspicion against a suspect emerges, he may be detained in which event his liberty is seriously impaired. Where the investigative agency is of the opinion that the detainee or person in custody is guilty of the commission of a crime, he is charged of it and thereupon arrested. In Roshan Beevi, the Full Bench of the High Court of Madras, speaking through S. Ratnavel Pandian J, held that the terms 'custody' and 'arrest' are not synonymous even though in every arrest there is a deprivation of liberty is custody but not vice versa. This thesis is reiterated by Pandian J in Deepak Mahajan by deriving support from Niranjan Singh v. Prabhakar Rajaram Kharote MANU/SC/0182/1980MANU/ SC/0182/1980 : (1980) 2 SCC 559. The following passages from Deepak Mahajan are worthy of extraction: 

73- Thus the Code gives power of arrest not only to a police officer and a Magistrate but also under certain circumstances or given situations to private persons. Further, when an accused person appears before a Magistrate or surrenders voluntarily, the Magistrate is empowered to take that accused person into custody and deal with him according to law. Needless to emphasize that the arrest of a person is a condition precedent for taking him into judicial custody thereof. To put it differently, the taking of the person into judicial custody is followed after the arrest of the person concerned by the Magistrate on appearance or surrender. It will be appropriate, at this stage, to note that in every arrest, there is custody but not vice versa and that both the words 'custody' and 'arrest' are not synonymous terms. Though 'custody' may amount to an arrest in certain circumstances but not under all circumstances. If these two terms are interpreted as synonymous, it is nothing but an ultra legalist interpretation which if under all circumstances accepted and adopted, would lead to a startling anomaly resulting in serious consequences, vide Roshan Beevi. 

74- While interpreting the expression 'in custody' within the meaning of Section 439 Code of Criminal Procedure, Krishna Iyer, J. speaking for the Bench in Niranjan Singh v. Prabhakar Rajaram Kharote observed that: (SCC p. 563, para 9) 

He can be in custody not merely when the police arrests him, produces him before a Magistrate and gets a remand to judicial or other custody. He can be stated to be in judicial custody when he surrenders before the court and submits to its directions. In view of the above, we are of the view that 167-A is applicable to surrender before a Magistrate and if he has no jurisdiction then he had only option to forward the accused to the Magistrate having jurisdiction. 

75- It has been argued on behalf of the respondents that non submission of information of accused regarding surrender and custody to the Senior Superintendent of Police or Investigating Officer concerned is denial of right of fair investigation, Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied was not made available to the Investigating Officer. 

76- Learned Counsel for the petitioner has submitted that disciplinary enquiry or initiation of enquiry against a judicial officer for granting bail is not justified on the basis of following decisions of Apex Court:- 

1- AIR 2007 SCC (Supp) 88 Ramesh Chandra Versus Allahabad High Court and Another. 

2- AIR 1997 SCC 1157 Braj Kishore Thakur Versus Union of India and Others. 

3-AIR 1996 SCC 3240-1996(4) SCC 539 Kashi Nath Roy Versus The State of Bihar. 

It has been argued on behalf of the petitioner that in our judicial system appellate and revisionary courts have been set up with the pre-subjudication that the case can go wrong in decision. The High Court have been established to correct errors in cases where intolerable error is pointed out, it is functional requirement to correct the error. 

77- Learned Counsel for the respondents has submitted that High Court while exercising the power of Article 226 of Constitution of India cannot re-appreciate the evidence which was appreciated by the Enquiry Officer and should not act as Appellate Authority in the disciplinary proceedings. In disciplinary proceedings the High Court is not and cannot act as a second court of a first appeal. The High Court can exercise the power under Article 226/227 of Constitution of India, shall not venture into re-appreciation of the evidence. 

78- The High Court, in exercise of its powers Under Article 226/227 of the Constitution of India, shall not venture into re-appreciation of the evidence. The High Court can only see whether: 

a. the enquiry is held by a competent authority; 

b. the enquiry is held according to the procedure prescribed in that behalf; 

c. there is violation of the principles of natural justice in conducting the proceedings; 

d. the authorities have disabled themselves from reaching a fair conclusion by some considerations extraneous to the evidence and merits of the case; 

e. the authorities have allowed themselves to be influenced by irrelevant or extraneous considerations; 

f. the conclusion, on the very face of it, is so wholly arbitrary and capricious that no reasonable person could ever have arrived at such conclusion; 

g. the disciplinary authority had erroneously failed to admit the admissible and material evidence; 

h. the disciplinary authority had erroneously admitted inadmissible evidence which influenced the finding; 

i. the finding of fact is based on no evidence. 

Under Article 226/227 of the Constitution of India, the High Court shall not: 

(i). re-appreciate the evidence; 

(ii). interfere with the conclusions in the enquiry, in case the same has been conducted in accordance with law; 

(iii). go into the adequacy of the evidence; 

(iv). go into the reliability of the evidence; 

(v). interfere, if there be some legal evidence on which findings can be based. 

(vi). correct the error of fact however grave it may appear to be; 

(vii). go into the proportionality of punishment unless it shocks its conscience. 

79- In one of the earliest decisions in State of Andhra Pradesh and Ors. v. S. Sree Rama Rao MANU/SC/0222/ 1963MANU/ SC/0222/1963 : AIR 1963 SC 1723, many of the above principles have been discussed and it has been concluded thus: 

7....The High Court is not constituted in a proceeding Under Article 226 of the Constitution a court of appeal over the decision of the authorities holding a departmental enquiry against a public servant: it is concerned to determine whether the enquiry is held by an authority competent in that behalf, and according to the procedure prescribed in that behalf, and whether the rules of natural justice are not violated. Where there is some evidence, which the authority entrusted with the duty to hold the enquiry has accepted and which evidence may reasonably support the conclusion that the delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ Under Article 226 to review the evidence and to arrive at an independent finding on the evidence. The High Court may undoubtedly interfere where the departmental authorities have held the proceedings against the delinquent in a manner inconsistent with the rules of natural justice or in violation of the statutory rules prescribing the mode of enquiry or where the authorities have disabled themselves from reaching a fair decision by some considerations extraneous to the evidence and the merits of the case or by allowing themselves to be influenced by irrelevant considerations or where the conclusion on the very face of it is so wholly arbitrary and capricious that no reasonable person could ever have arrived at that conclusion, or on similar grounds. But the departmental authorities are, if the enquiry is otherwise properly held, the sole judges of facts and if there be some legal evidence on which their findings can be based, the adequacy or reliability of that evidence is not a matter which can be permitted to be canvassed before the High Court in a proceeding for a writ Under Article 226 of the Constitution. 

80- These principles have been succinctly summed-up by the living legend and centenarian Justice V.R. Krishna Iyer in State of Haryana and Anr. v. Rattan Singh MANU/SC/0332/ 1977MANU/SC/ 0332/1977 : (1977) 2 SCC 491. To quote the unparalleled and inimitable expressions: 

"4....in a domestic enquiry the strict and sophisticated rules of evidence under the Indian Evidence Act may not apply. All materials which are logically probative for a prudent mind are permissible. There is no allergy to hearsay evidence provided it has reasonable nexus and credibility. It is true that departmental authorities and Administrative Tribunals must be careful in evaluating such material and should not glibly swallow what is strictly speaking not relevant under the Indian Evidence Act. For this proposition it is not necessary to cite decisions nor text books, although we have been taken through case-law and other authorities by counsel on both sides. The essence of a judicial approach is objectivity, exclusion of extraneous materials or considerations and observance of rules of natural justice. of course, fairplay is the basis and if perversity or arbitrariness, bias or surrender of independence of judgment vitiate the conclusions reached, such finding, even though of a domestic tribunal, cannot be held good." 

81- Learned Counsel for the petitioner has also relied on Judges Protection Act with certain observations made by Hon'ble Court in following citations:- 

1- AIR 1965 SC 1651, Anowar Hussain Versus Ajoy Kumar Mukherjee. 

2- (1981) 2 SCC 577, Rachapudi Subba Rao Versus Advocate General. 

3- AIR 1994 SC 1031-K.P.Tiwari Versus State of Madhya Pradesh. 

4- AIR 1988 SC 1395 Ishwar Chand Jain Versus High Court of Punjab and Haryana. 

5- AIR 2001 SC 3806- R.C. Tamraka Versus Nidhi Lekha 

6- W.P. No.-425(S/B) of 2006, Sanjaye Kumar Goel Versus State of U.P. 

7- AIR 1999 SC 3734 Yoginath D.Bagde Versus State of Maharastra 

8- 2016 (5) ALI 690 (DB) Para 11 and 12, (part 10) Union of India Versus Hari Shanker Pandey. 

9- (2009) 12 SCC 78 Union of India Versus Gyan Chand Chatter. 

10- (2011) 6 SCC 376, Commissioner of Police Delhi Versus Jai Bhawan. 

11- 2011(29) LCD 820 Laxmi Narain Sharma Versus State of U.P. & Others. 

12- (2008) 12 SCC Page 230 Contonment Executive Officer Versus Vijay D.Wani. 

13- (1985) 4 SCC 417 Ashok Kumar Yadav Versus State of Haryana and Others. 

14- (1986) 4 SCC 537 Institute Charted Account of India Versus L.K. Ratna and Others. 

82- Learned Counsel for the petitioner has submitted that under the powers as provided under Section 81 of Cr.P.C. read with Section 439 of Cr.P.C. the then Sessions Judge/the petitioner entertained the certain applications and disposed of the bail applications. He had also relied on following citations:- 

1- (1992) 29 ACC 673, 1992 SCC online All 346, Sunil Agarwal Versus State of U.P. & Others. 

2- AIR 1980 SC 785, Niranjan Singh & Anothers Versus Prabhakar Rajaram Kharote & Others. 

3- Matter under Article 227 No.-3041 of 2013- Arvind Kumar-II Versus High Court of Judicature at Allahabad and another. 

83- Indisputably F.I.R. was lodged against the accused for an embezzlement of an amount of approximately 22 crores 70 lakhs in Case Crime No.-45 of 1994 and defraud the bank to the tune of one crore and sixty five lakhs in another case. The provisions as contained in Section 81 is not applicable in the present case because the accused was not taken into custody in execution of any warrant issued from any other Court having different territorial jurisdiction as contained in Section 77 to 90 of Cr.P.C. Section 77 of Cr.P.C. provides that the warrant of arrest may be executed at any place in India and Section 81 is applicable when the accused is taken into custody in compliance of warrant of arrest issued by the competent Court and the same is executed in another territorial jurisdiction and the accused is taken into custody by the police authorities. Section 81 makes it clear that unless the person is arrested in a different district in pursuance of warrant issued by the Court of another district, Section 81 cannot be pressed into application. The matter has been fully discussed by the Enquiry Judge and it was found that the Section 81 is not applicable in the present case. 

84- Learned Counsel for the respondents had submitted that a judicial officer is not an ordinary Government servant, he must be above suspicion he had relied on following citations:- 

1- R.C.Chandel Versus High Court of Madhya Pradesh and Another in Re: (2012) 8 SCC 58 

2- High Court of Patna Versus Shiveshwar Narayan and Another in Re: (2011) 15 SCC 317 

3- Rajendra Singh Verma Vs. Lieutenant Governor and others in Re: (2011) 10 SCC 1 

4- High Court of Bombay Versus Udai Singh and Others In Re: (1997) 5 SCC 129 

85- In R.C.Chandels case Hon'ble Court held in paragraph-29 as follows:- 

"Judicial service is not an ordinary government service and the Judges are not employees as such. Judges hold the public office; their function is one of the essential functions of the State. In discharge of their functions and duties, the Judges represent the State. The office that a Judge holds is an office of public trust. A Judge must be a person of impeccable integrity and unimpeachable independence. He must be honest to the core with high moral values. When a litigant enters the courtroom, he must feel secured that the Judge before whom his matter has come, would deliver justice impartially and uninfluenced by any consideration. The standard of conduct expected of a Judge is much higher than an ordinary man. This is no excuse that since the standards in the society have fallen, the Judges who are drawn from the society cannot be expected to have high standards and ethical firmness required of a Judge. A Judge, like Caesar's wife, must be above suspicion. The credibility of the judicial system is dependent upon the Judges who man it. For a democracy to thrive and rule of law to survive, justice system and the judicial process have to be strong and every Judge must discharge his judicial functions with integrity, impartiality and intellectual honesty." 

86- In the case of Udai Singh Hon'ble Court held as follows:- 

Since the respondent is a judicial officer and the maintenance of discipline in the judicial service is a paramount matter and since the acceptability of the judgment depends upon the credibility of the conduct, honesty, integrity and character of the office and since the confidence of the litigant public gets affected or shaken by the lack of integrity and character of the judicial officer, we think that the imposition of penalty of dismissal from service is well justified. It does not warrant interference. 

87- Learned Counsel for the respondent has also submitted that writ petition involving disputed questions of fact is not maintainable and he had relied on the following citations:- 

1- General Manager , Kisan Sahkari Chini Mills Ltd., Sultanpur, U.P. Vs. Satrughan Nishad and Others, in Re: (2003) 6 SCC 639 

2- Orissa Agro Industries Corp. Ltd. Versus Bharti Industries and Others In Re: (2005) 12 SCC 725 

88- In State Bank of India Versus Narain Kumar Pandey (2013) 2 SCC page 740, the judicial review the matter of imposition of penalty in disciplinary proceedings has been discussed as follows:- 

"This Court in State of Andhra Pradesh v. Sree Rama Rao MANU/SC/0222/1963MANU/SC/0222/1963 : AIR 1963 SC 1723 held: 

Where there is some evidence, which the authority entrusted with the duty to hold the inquiry has accepted and which evidence may reasonably support the conclusion that delinquent officer is guilty of the charge, it is not the function of the High Court in a petition for a writ under Article 226 to review the evidence and to arrive at an independent finding on the evidence especially when the charged officer had not participated in the inquiry and had not raised the grounds urged by him before the High Court by the Inquiring Authority. 

89- The Court in Lakshmi Devi Sugar Mills Ltd. v. Pt. Ram Sarup MANU/SC/0065/1956MANU/SC/0065/1956 : AIR 1957 SC 82 held where a workman intentionally refuses to participate in the inquiry, cannot complain that the dismissal is against the principles of natural justice. Once the inquiry proceed ex parte, it is not necessary for the Inquiring Authority to again ask the charged officer to state his defence orally or in writing. We cannot appreciate the conduct of the charged officer in this case, who did not appear before the Inquiring Authority and offered any explanation to the charges levelled against him but approached the High Court stating that the principles of natural justice had been violated, while in the present case the delinquent was given full opportunity of hearing. 

90- We are also conscious of the fact that even if the Inquiring Authority set the charged officer ex parte that would not absolve him from deciding that the charges levelled against him were proved or not. In other words, no punishment could be imposed without an inquiry. We notice in this case the Inquiring Authority had elaborately considered the charges levelled against the charged officer and also the materials produced by the bank because some evidence is necessary to establish the charges. In some cases, proof may only be documentary and in some cases oral. The requirement of proof depends on the facts and circumstances of each case. Appellant - Bank in this case has succeeded in establishing the charges levelled against the delinquent officer and was rightly dismissed from service which called for no interference by the High Court under Article 226 of the Constitution of India. 

91- Similarly in Administrator Union territory of Dadar and Nagar Haveli Versus Gulabhia M. Lad in Re: (2010) 5 SCC page 775, it was held as follows:- 

The legal position is fairly well settled that while exercising power of judicial review, the High Court or a Tribunal cannot interfere with the discretion exercised by the Disciplinary Authority, and/or on appeal the Appellate Authority with regard to the imposition of punishment unless such discretion suffers from illegality or material procedural irregularity or that would shock the conscience of the Court/Tribunal. The exercise of discretion in imposition of punishment by the Disciplinary Authority or Appellate Authority is dependent on host of factors such as gravity of misconduct, past conduct, the nature of duties assigned to the delinquent, responsibility of the position that the delinquent holds, previous penalty, if any, and the discipline required to be maintained in the department or establishment he works. Ordinarily the Court or a Tribunal would not substitute its opinion on reappraisal of facts. 

92- The question as raised by learned Counsel for the petitioner that the enquiry report was not prepared or dictated by the Enquiry Judge is not maintainable because it has been duly signed by the authority concerned and it was duly considered by the Administrative Committee and full Court and it has never been challenged on this ground. 

93- On the basis of above submissions advanced by learned Counsel for the petitioner as well as learned Counsel for the respondents, we are of the view that conclusion arrived by the Enquiry Judge is based on material on record and while submitting the enquiry report he had discussed the facts and circumstances of the case on the basis of evidence on record and a conclusion has been drawn against the delinquent regarding his guilt. The enquiry was initiated by the competent authority on the basis of a report which was found prima-facie guilt of the delinquent officer and during the course of enquiry sufficient opportunity of hearing was given to the delinquent officer and he was provided opportunity of defence. The proceedings of the enquiry has been placed before the Court for perusal. Order of punishment was passed by the competent authority/ appointing authority i.e. Governor of the State having authority to pass the order. 

94- On the basis of above discussion we are of the view that the petition lacks merit and deserves to be dismissed. Before parting with the order we appreciate the manner of systematic presentation of argument on the point of law and fact of learned Counsel for the petitioner Sri A.K. Shukla. Sri A.K. Shukla learned Counsel for the petitioner has also presented some emotional arguments , but we constrained ourselves to the facts of the case. The petition lacks merit and deserves to be dismissed. 

Accordingly, this petition is dismissed. There shall be no order as to costs. 

Dated: 04th July 2017 

Jyoti/- 

(Sheo Kumar Singh-I, J.) (Shri Narayan Shukla, J.) 

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