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Muzaffarnagar judge questions legality of recalling 97 pending cases from his court
“A judge’s job is to deliver justice, but if injustice is done to the judge himself, where does he go?” additional district and sessions judge Ravi Kumar Diwakar observes in his 35-page judgement, while acquitting an accused in a nearly decade-old case under the NDPS Act
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Additional district and sessions judge (Muzaffarnagar) Ravi Kumar Diwakar, who was in the news recently for awarding death sentences to 23 convicts in five months between April and September this year, has questioned the then district judge’s decision to recall 97 pending cases from his court last month and transfer them to other courts.
“A judge’s job is to deliver justice, but if injustice is done to the judge himself, where does he go?” Diwakar observed in his 35-page judgement, while acquitting an accused in a nearly decade-old case under the Narcotic Drugs and Psychotropic Substances (NDPS) Act on Thursday.
“No public servant can behave like a king. He must provide a legal reason for every administrative order issued by him,” the judge wrote, questioning whether the then district judge’s decision to recall cases on August 18, just 13 days before his retirement, without assigning any reason, was justified. The district judge retired at the end of August.
The judge said the orders issued by the then district judge merely used the word “recall” and did not explain the reasons for withdrawing the cases from his court.
Diwakar also cited Section 409 of the Code of Criminal Procedure (CrPC), 1973, concerning the power of a sessions judge to withdraw cases from subordinate courts.
According to his interpretation cited in the judgment, while Section 409 gives the sessions judge the power to withdraw a case, Section 409(2) restricts that power once the trial has commenced. If a case has become “part heard”, the judge said, it cannot be withdrawn under the provision.
On that basis, he questioned the withdrawal of pending case records from his court without any stated reason and termed the action contrary to law.
The judge also referred to Section 408(1) of the CrPC, which empowers a sessions judge to transfer a case from one criminal court to another within the division.
Diwakar acknowledged that cases can be transferred even after a trial has commenced when appropriate circumstances exist. However, his observations focused on the need for such administrative powers to be exercised in accordance with law and not arbitrarily.
He also underlined the wider responsibility of public servants and their conduct.
“A public servant should have the ability to call right right and wrong wrong. The credibility of the institution he represents is also linked to his conduct,” the judge wrote.
About 10 days before Thursday’s judgment, while sentencing an accused to death in the Shahpur Shahjadi murder case on September 7, Diwakar wrote that he would prefer to die rather than be known as a cowardly judge.
He had said that he would continue in service as long as he was able to follow his principles and would resign if he could no longer do so.
