Magistrates, judge not above law; have to face consequences for dereliction of duty: Kerala HC

PTI, Dec 23, 2022, 1:35 PM IST

Magistrates, judges and other presiding officers are not above the law and they have to face consequences for dereliction of duty, the Kerala High Court said on Friday while ordering suspension of a former Chief Judicial Magistrate (CJM) of Lakshadweep for allegedly forging evidence in a criminal trial to convict an accused.

”This should be a lesson to all,” Justice P V Kunhikrishnan said while directing the Administrator of the Union Territory of Lakshadweep to place the former CJM, presently the Secretary of the District Legal Services Authority in the island archipelago, under suspension during pendency of the disciplinary proceedings against him.

”In the facts and circumstances of this case, this court has to conclude prima facie that the additional 3rd respondent (former CJM) committed forgery by creating the evidence of PW7 (one of the witnesses in the criminal case)… Prima facie, I am of the opinion that the additional 3rd respondent committed serious misconduct and dereliction of duty,” the high court said.

”The Administrator, Union Territory of Lakshadweep is directed to place the additional 3rd respondent under suspension forthwith and conduct a detailed enquiry about his actions mentioned in this order forthwith and take appropriate steps in accordance with law, untrammelled by any observation in this judgement,” it stated.

The high court issued notice under Section 340 (perjury proceedings) of the Criminal Procedure Code (CrPC) to the former CJM K Cheriyakoya and also the then bench clerk P P Muthukoya and LD clerk A C Puthunni for conducting preliminary enquiry.

All three persons were directed to appear before the high court on January 23, 2023.

The high court was of the ”considered view” that the bench clerk and LD clerk, who were posted with the former CJM, were colluding with him to justify his acts.

The directions and observations came on a plea moved by the convicted persons alleging that the former CJM, due to a personal enmity with them, forged evidence of the investigating officer and sentenced them to four-and-a-half years in jail for the offences of unlawful assembly, rioting and obstructing, by use of force, a public servant from discharging his duties.

The case was lodged against the petitioners-accused for obstructing plucking of coconuts, with police assistance and under supervision of the Deputy Surveyor, by a contractor from Agatti.

The accused-petitioners claimed before the high court that the former CJM has personal enmity towards them because some of them are the plaintiffs in a civil suit and had filed a complaint against him, for his allegedly prejudiced view in that matter, before the Registrar (Subordinate Judiciary) of the High Court of Kerala.

The petitioners contended in the high court that the evidence of the investigating officer (IO) in the criminal case was never recorded, but the CJM allegedly forged the same to convict them.

The IO, in an affidavit before the high court, supported the stand of the accused by categorically stating that he had not given any evidence before the former CJM.

”If that is the case, this court has to presume prima facie that the additional 3rd respondent created or forged the evidence of PW7 (IO),” the high court said.

It further said, ”The Magistrate, Judges and other presiding officers are not above the law and if they commit any dereliction of duty, they have to face the consequences. The pen of a judicial officer is powerful, but it should be used with great caution, of course without fear and favour.” As the high court had issued an interim direction deferring coercive steps against the petitioners so that they can approach the appellate court against the CJM order, it said no further orders are necessary on that aspect.

The high court said that the ”petitioners are free to agitate all their contentions raised in these original petitions before the appellate court in accordance with law”.