JUDGMENT
B.M. Lal, J.
1. This petition under Articles 226/227 of the Constitution is directed against the order dated 17th April, 1997 (Annexure 1) passed by the respondent No, 1 the State of U. P. through Secretary Appointment Department, Sachivalaya, Lucknow, whereby the services of petitioner who was a Judicial Officer functioning as a Magistrate, Ist Class in the State of U.P., have been terminated with immediate effect.
2. The termination order is based on the following grounds :
1. That the petitioner granted bail in Case Crime No. 59/93 State v. Phool Chand under Section 102/201, I.P.C. in exercise of powers purported to have been conferred by Section 437, Cr.P.C. whereas the offence was punishable with death or imprisonment for life.
2. That the petitioner rejected the request for releasing an aara machine for want of licence and proof of its renewal whereas relevant papers were there on the record, in Case Crime No. 37/ 93, Forest Department v. Ganga Prasad.
3. That the petitioner granted bail in Case Crime No. 105/93 State v. Jawahar, Under Sections 376/ 342, I.P.C. which was triable exclusively by the Court of Sessions.
4. That in Criminal Complaint Case No. 461/ 93, Shravan Kumar v. Naresh, petitioner did not issue summons to the accused after recording statements of the witnesses.
These orders have been passed by the petitioner on extraneous consideration and for illegal gratifications.
3. Learned Counsel for petitioner vehemently contended that Section 437, Cr. P.C does not debar absolutely a Magistrate from granting bail in offences punishable with death or imprisonment for life and the offences triable exclusively by the Court of Sessions. No doubt, in the police report the offences were shown triable exclusively by the Court of Sessions but if assuming everything on record to be true, no case triable by the Court of Sessions was made out, there was no illegality in granting the bail. Learned Counsel further contended that no charge of misconduct and illegal gratifications has been proved against the petitioner, consequently impugned order of termination is liable to be quashed by this Court.
4. No doubt, in criminal jurisprudence, the undertrials are supposed to be innocent, therefore, the general policy of law is to grant bail rather than to send jail but Section 437 of the Code completely debars the Magistrate from granting bail in the offences punishable with death or imprisonment for life except where the accused person is woman or below the age of sixteen years or sick or infirm as provided in the first proviso to Sub-section (1) of Section 437 of the Code. In the instant case, the persons whom petitioner has granted bail were not in the category of persons described in the said proviso, therefore, it is abundantly clear that the petitioner has travelled beyond his jurisdiction under Section 437 of the Code. The conclusion arrived at by the Enquiry Officer is that the petitioner travelled beyond jurisdiction for extraneous considerations and illegal gratifications.
5. The law is well-settled on the point. In Vijay Kumar v. State of U.P. 1989 All WC 569, a Division Bench of this Court held that it can be legitimately concluded that the requirement of the law is that if such an offence reasonably appears to have been committed where punishment for life imprisonment can be inflicted or death penalty can be awarded, the Magistrate has no jurisdiction to grant bail, except in cases which fall within the ambit of the proviso added to Sub-section (1) of Section 437, Cr.P.C.
6. Similarly in Gurcharan Singh v. State AIR 1978 SC 179, their Lordships of Apex Court ruled that if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life and forwards him to a Magistrate, the Magistrate at that stage will have no reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage, unless the Magistrate is able to act under the proviso to Section 437(1), bail appears to be out of the question.
7. Lastly learned Counsel for the petitioner argued that there are certain judicial pronouncements of this Court wherein it is held that the Magistrate while considering bail application even in respect of offences which are triable by the Court of Sessions has authority and is expected to apply his mind as to whether there are reasonable grounds for believing that the man is guilty of the offence or not, therefore, the petitioner appears to have been misled by such decisions. In this regard learned Counsel have reference of Babooram Gupta v. State of U.P. 1995 All Cr C 496.
8. In Babooram’s case (supra), giving reference of 3 cases of this Court namely Krishna Kant Misra v. Suresh Chandra Misra 1984 All Nirnay Partika, 33; Vijay Kumar v. State of Uttar Pradesh 1989 All WC 569 (supra) and Kishore Kumar v. State of U.P. (1985) All Cri C 390 (2) : 1985 All LJ 1238, it is stated that out of these, the case of Vijay Kumar happens to be a Division Bench decision and there is no occasion for taking a different view. We have already stated above that the ratio laid down in Vijay Kumar (supra) is that the requirement of the law is that if such an offence reasonably appears to have been committed where punishment for life imprisonment can be inflicted or death penalty can be awarded, the Magistrate has no jurisdiction to grant bail, except in cases which fall within the ambit of the proviso added to Section 437 of the Code. The next case referred in Babooram’s case (supra) is Kishore Kumar’s case (supra). Even in Kishore Kumar’s case (supra), this Court has held that the clear dictum of the law is that in the case of a non-bailable offence also the Magistrate’s Court can grant bail but this grant will not be permissible, if there appear reasonable grounds for believing that the man has been guilty of an offence punishable with death or imprisonment for life. Thus, in none of the cases it is specifically held that the Magistrate has jurisdiction to grant bail in the cases where the offence is punishable with life imprisonment or death. In any case, in Gurcharan’s case, AIR 1978 SC 179 (supra), when their Lordships of Apex Court have specifically ruled that if a police officer arrests a person on a reasonable suspicion of commission of an offence punishable with death or imprisonment for life and forwards him to a Magistrate, the Magistrate at that stage will have no reasons to hold that there are no reasonable grounds for believing that he has not been guilty of such an offence. At that stage, unless the Magistrate is able to act under the proviso to Section 437(1), bail appears to be out of the questions; then the view contrary to it, if taken by this Court would not be a good law. The law laid down by the Apex Court in Gurcharan’s case (supra) is the law of the land in view of Article 141 of the Constitution and would prevail over the law laid down by this Court.
9. It appears that in Babooram’s case (1995 All Cri C 496) (supra) although the cases of Vijay Kumar (1989 All WC 569) (supra) and Kishore Kumar (1985 All LJ 1238) (supra) have been referred but they do not appear to have been applied in right perspective and therefore, we hold that the view taken by this Court in Babooram’ s case (supra) to the extent it is contrary to the view taken by the Apex Court in Gurcharan’s case (AIR 1978 SC 179) (supra) is no longer a good law and is perincuriam having not considered the Gurcharan’s case (supra) and thus, is of no avail for the petitioner before us. Also for the reason that the petitioner has been punished on the charges of corruption, and in cases involving corruption, there should not be any other punishment than dismissal as any sympathy shown in such cases is totally uncalled for and opposed to public interest. [See Municipal Committee, Bahadurgarh v. Krishnan Behari (1996) 3 JT (SC) 96 : AIR 1996 SC 1249].
10. Therefore, for the earlier safer side while considering bails under Section 437, Cr.P.C. it is always better for the Magistrate to first look into the First Schedule appended to Cr.P.C. which classifies the offences. The column 3 of the Schedule provides the punishment. No sooner the Magistrate finds that the offence is punishable with death or imprisonment for life, he should refrain from granting bail, except in cases which fall within the ambit of the proviso added to Sub-section (1) of Section 437, Cr.P.C.
11. In Sanjay Gandhi v. Union of India AIR 1978 SC 514, their Lordships of Apex Court explained the whole position holding that under the new Code, in cases where offence is triable exclusively by the Court of Sessions, the Committing Magistrate has no power to discharge the accused, nor has power to take oral evidence. It is also not open to the Committal Court to launch on a process of satisfying itself that a prima facie case has been made out on the merits.
12. Though, learned Counsel for petitioner tried to canvass that the findings arrived at by the Enquiry Officer in respect of extraneous considerations and illegal gratifications are erroneous and therefore, cannot be relied upon and thus the punishment be awarded commensurate with the gravity of the misconduct, yet the Writ Court has its own limitations. The Writ Court should not deviate from basic principle of law that while exercising writ jurisdiction, the findings of Enquiry Officer specially when it is based on evidence, should not be interfered with except where it is based on no evidence or is based on irrelevant material or non-existing facts or even wrong approach of the appreciation of law is there. (See Lord Diplock in House of Lords, Council of Civil Service Unions v. Minister for the Civil Service (1984) 3 All ER 935). The Writ Court does not function as a Court of Appeal. (See AIR 1993 SC 494 (sic)). Nonetheless where finding is utterly perverse, the Writ Court is not lagging behind in interfering with the same. Thus, with this touchstone, if the findings arrived at by the Enquiry Officer in the instant case are tested, there appears no infirmity in the same warranting interference by this Court.
13. Before parting with the case it is necessary to point out that if the penalty imposed is not commensurate with the gravity of misconduct, the same would be violative of Article 14 of the Constitution. Whee unreasonableness is apparent Writ Court can interfere. (See Ex. Naik Sardar Singh v. Union of India AIR 1972 SC 417 (sic) and Ranjit Thakur v. Union of India AIR 1987 SC 2386). Therefore, in the cases of Judicial Officers where order/judgment is based on bona fide appreciation of law and in consonance with the interpretation the major punishment of termination may be taken as too harsh depending upon the facts of each case but at the same time where illegal gratification or extraneous considerations are involved, the punishment of termination seems to be a lenient view as illegal gratifications and extraneous considerations warrant dismissal from service.
14. As a matter of fact, the District Judiciary is the foundation on which the structure of the judicial system of the country stands. Since the members of the District Judiciary impart justice at the grass root level, the common man gathers the first impression of the working of the judicial system from the District Courts. Therefore in the present era of transparency and accountability, the Judicial Officers should also introspect and function only within the limits of law and must realise their accountability to public and the law. .The prestige and dignity of Judiciary has to be maintained at all costs for the safety of citizen and security of democracy.
15. In the instant case, the petitioner has not only travelled beyond the jurisdiction conferred by law rather the charges of illegal gratifications and extraneous considerations have also been proved. We do not find any reason or justification to disbelive the Enquiry Officer or his report. The procedure prescribed by law for such matters appears to have been fully followed in the instant case.
16. In the premises aforesaid, we are of the considered opinion that no interference by this Court is called for. The writ petition fails and is, therefore, dismissed at the admission stage. The Registry of the Court is directed to circulate copy of this order to all Chief Judicial Magistrates in Uttar Pradesh.