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Uttar Pradesh Judge Ravi Kumar Diwakar has questioned the recall of 97 part-heard murder and other serious offence cases from his court last month, as he termed the orders passed by the then District Judge, Muzaffarnagar, as "Without Jurisdiction".

"But now the question arises that a judge's work is to do justice and if injustice is done to the same judge, then where will he go?", Diwakar remarked in his 35-page judgment, in which nearly half the pages are devoted to discussing the recall of the cases.

The observations came in a judgment passed on September 17, in which Judge Diwakar acquitted an accused in an NDPS case.

It may be noted that the cases were recalled from the court of Judge Diwakar, who is posted as Additional District and Sessions Judge in Muzaffarnagar district, days after he awarded 22 death sentences in 10 different cases over a 4-month period.

According to the judgment, these were part-heard cases involving serious murder charges, and they were recalled without assigning any reason and merely 13 days before the District Judge's retirement.

Examining Section 409 CrPC, corresponding to Section 449 BNSS, Judge Diwakar noted that a Sessions Judge can recall a case made over to an Additional Sessions Judge only before the trial or hearing has commenced; however, he adds, once trial has commenced and the case becomes "Part heard", the cases can't be recalled.

Thus, he found that the August 18 orders recalling the 97 part-heard cases from his court were "Without Jurisdiction".

Judge Diwakar also questioned the absence of reasons in the orders as mandated by Section 412 CrPC.

He noted that the 'non-speaking' orders merely used the word 'recall', without recording why the serious murder cases were being taken away from his court.

He also distinguished the power to recall cases under Section 409 from the power to transfer cases under Section 408 CrPC.

Section 408 empowers a Sessions Judge to transfer a criminal case from one criminal court to another within the sessions division. Such power, Judge Diwakar noted, does not necessarily end merely because the trial has commenced.

However, relying on the Supreme Court's judgment in Usmangani AdamBhai Vohra v. State of Gujarat, he stressed that the power cannot be exercised in an “arbitrary or routine” manner.

There must be a proper and justifiable basis for transferring a case, and the circumstances must disclose a real and reasonable apprehension of failure or miscarriage of justice, he said.

Judge Diwakar, however, also acknowledged an important caution in the Supreme Court Judgment that the trial court judges often work under considerable pressure, and every judicial mistake, however serious, should not automatically be attributed to improper intent.

In the judgment, Judge Diwakar has also made certain remarks on the rule of Law, transparency, and accountability. He observed that a public servant should be able to call right as right and wrong as wrong, because the institution represented by such public servants can lose public confidence if its officers cannot identify or oppose wrongdoing.

He stated that India follows the Rule of Law, under which no one is above the law and the country is governed by law rather than by the arbitrary conduct of a public servant. He observed thus:

"A public servant cannot behave like kings and he will have to give reasons for each of his orders, that is, the order should be a speaking order. There should be transparency in the system…In criminal cases, the victim/complainant should also know for what reason the files of serious cases, such as murder cases, have been transferred from one court to another".

The judge then quoted Lord Acton's well-known observation: "Power tends to corrupt, and absolute power corrupts absolutely".

Explaining the principle, Judge Diwakar observed that when checks on power disappear, a person may begin to consider himself above law and morality.

He wrote that the greatest danger of "unbridled power" is not merely that it controls others, but that it begins to consider itself free from accountability.

The judgment further states that real power lies not in controlling others but in understanding the limits of one's own authority and taking decisions with fairness.

In one of the judgment's most striking observations, Judge Diwakar said:

"The moment a person begins to believe that no question can be raised above his decision, arrogance begins in place of justice. When the possibility of asking questions ends, arrogance begins to make decisions and justice slowly becomes silent".

Judge Diwakar stressed that the strength of an institution lies not merely in the power wielded by individuals, but in the limits that keep even powerful persons subject to law, discretion and accountability.

Judge Diwakar ultimately observed that the issue was not merely whether administrative power to recall or transfer cases existed, but the basis on which that power was exercised.

He noted that where a large number of serious cases, particularly cases under Section 302 IPC, are taken away from one judicial officer while other cases remain before that court, the administrative reasons and purpose behind such recall should be clear in the interests of transparency.

Before parting with the judgment, the judge posed another question: if a Sessions Judge or District Judge passes an administrative order which is "Without Jurisdiction", is the concerned judicial officer legally bound to comply with it?

Judge Diwakar ultimately acquitted the accused under Sections 8/20 of the NDPS Act after finding serious deficiencies in the prosecution case.

The case had taken nearly ten years to reach judgment. Judge Diwakar observed that spending ten years going through courts is itself a punishment and referred to the famous dialogue from the movie Damini, "Tarikh Par Tarikh" in the context of judicial delay.

Also read: Explained | Controversy Surrounding UP Judge Ravi Kumar Diwakar

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