Criminal action in civil dispute: SC tells Allahabad HC judge not to hear criminal cases, sit with senior

Taking note of repeated “erroneous orders” passed by Justice Prashant Kumar of the Allahabad High Court, the Supreme Court has restrained him from hearing criminal cases “till he demits office” after he wrongly upheld summons of criminal nature issued by a trial court in a civil dispute.

“We request the Hon’ble Chief Justice of the Allahabad High Court to assign this matter to any other judge of the high court as he may deem fit… We further direct that the concerned judge shall not be assigned any criminal determination, till he demits office. If at all at some point of time, he is to be made to sit as a single judge, he shall not be assigned any criminal determination,” a bench of Justice JB Pardiwala and Justice R Mahadevan said.

The unprecedented order came after the bench noticed that many such erroneous orders had been passed by the judge concerned over a period of time.

“The Chief Justice of the high court shall immediately withdraw the present criminal determination from the concerned judge. The Chief Justice shall make the concerned judge sit in a division bench with a seasoned senior judge of the high court,” the top court said in its August 4 order.

The bench directed the top court’s registry to forward a copy of its order to the Chief Justice of Allahabad High Court “at the earliest”.

“The judge concerned has not only cut a sorry figure for himself but has made a mockery of justice. We are at our wits’ end to understand what is wrong with the Indian Judiciary at the level of the high court. At times we are left wondering whether such orders are passed on some extraneous considerations or it is sheer ignorance of law. Whatever it (may) be, passing of such absurd and erroneous orders is something unpardonable,” the bench noted.

“It is an extremely sad day for one and all to read the observations contained in…the impugned order. It was expected of the high court to know the well-settled position of law that in cases of civil dispute a complainant cannot be permitted to resort to criminal proceedings as the same would amount to abuse of process of law. It was expected of the high court to understand the nature of the allegations levelled in the complaint. In substance the high court has said in so many words that the criminal proceedings instituted by the complainant in a case of pure civil dispute is justified because it may take considerable time for the complainant to recover the balance amount by preferring a civil suit, the top court noted.

“With all due deference and humility at our command, we are constrained to observe that the impugned order is one of the worst and most erroneous orders that we have come across in our respective tenures as judges of this court. “In such circumstances referred to above we are left with no other option but to set aside the order of the High Court even without issuing notice to the respondents,” it said, setting aside Justice Kumar’s order dated May 5.

Noting that the legal position on the issue has been clear for almost six decades since its verdict in ‘State of Gujarat vs Jaswantlal Nathalal’ (1968), the bench said, “We are not taken by surprise with the Magistrate exhibiting complete ignorance of law as regards the position of law, as to what constitutes cheating punishable under Section 420 of the IPC and criminal breach of trust punishable under Section 406 of the IPC. However, we expected at least the high court to understand the fine distinction between the two offences and the necessary ingredients to constitute the offence of cheating and criminal breach of trust.”

The order came on a petition filed by M/S Shikhar Chemicals challenging Justice Kumar’s order dismissing its plea seeking quashing of a summoning order in a case of commercial transaction. Justice Kumar had said asking the complainant to pursue civil remedy for recovering the amount was unreasonable being time intensive.

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