Challenge for Judicial Independence in India: An Analysis of Section 19(1)(a) of CrPC

Introduction

Judicial independence is the cornerstone of democracy and the rule of law. It means that the judiciary is free from any interference or influence by the other organs of the government or any other external factors. It also means that the judges are impartial, fair, reasonable and fearless in dispensing justice to the people.

The Constitution of India has made several provisions to ensure the independence of the judiciary, such as:

• The appointment of judges by a collegium system
• The security of tenure and removal of judges only by impeachment
• The separation of the judiciary from the executive
• The protection of salary and allowances of judges
• The powers and jurisdiction of the Supreme Court and the High Courts
• The contempt of court power to punish any interference with judicial functioning

However, despite these constitutional safeguards, the independence of the judiciary in India has been challenged by various factors, such as:

• The increasing backlog and pendency of cases
• The lack of adequate infrastructure and resources for courts
• The political interference and pressure on judges
• The post-retirement appointments and benefits for judges
• The media trial and public opinion on judicial decisions
• The internal conflicts and controversies within the judiciary

One of the recent issues that has raised concerns about the judicial independence in India is the interpretation and application of Section 19(1)(a) of the Code of Criminal Procedure (CrPC), 1973.

Section 19(1)(a) of CrPC

Section 19(1)(a) of CrPC states that:

The Chief Metropolitan Magistrate and every Additional Chief Metropolitan Magistrate shall be subordinate to the Sessions Judge, and every other Metropolitan Magistrate shall, subject to the general control of the Sessions Judge, be subordinate to the Chief Metropolitan Magistrate.

This provision implies that the Metropolitan Magistrates, who are judicial officers appointed by the High Courts, are under the administrative control and supervision of the Sessions Judges, who are district judges appointed by the Governor in consultation with the High Court.

The issue arises when a case is transferred from one court to another under Section 191 or Section 192 of CrPC. Section 191 states that:

When a Magistrate takes cognizance of an offence under clause © of sub-section (1) of section 190, the accused shall, before any evidence is taken, be informed that he is entitled to have the case inquired into or tried by another Magistrate, and if the accused or any of several accused objects to further proceedings before the Magistrate taking cognizance, the case shall be transferred to such other Magistrate as may be specified by the Chief Judicial Magistrate in accordance with any general or special order made by him in this behalf under sub-section (2).

Section 192 states that:

Any Chief Judicial Magistrate may, after taking cognizance of an offence, make over the case for inquiry or trial to any competent Magistrate subordinate to him.

These provisions give discretion to the Chief Judicial Magistrate (CJM) or the Chief Metropolitan Magistrate (CMM) to transfer a case from one court to another within their jurisdiction. However, there is no clear guideline or criterion for exercising this discretion. This may lead to arbitrary or biased transfers that may affect the independence and impartiality of the magistrates.

Case Studies

There have been several instances where Section 19(1)(a) of CrPC has been invoked or challenged in relation to judicial independence. Some of them are:

Rhea Chakraborty v. State of Bihar

This case involved a high-profile investigation into the death of actor Sushant Singh Rajput. His father filed an FIR in Bihar against his girlfriend Rhea Chakraborty and others for abetment of suicide and other offences. Rhea Chakraborty filed a petition in the Supreme Court seeking transfer of the case from Bihar to Mumbai, where she claimed that Sushant Singh Rajput died.

One of her arguments was that Section 19(1)(a) of CrPC was violated by transferring the case from one magistrate to another without her consent. She alleged that:

…the investigation in Bihar was being conducted at a time when there was no jurisdiction in Bihar as per law because no part offence occurred within Bihar. There was no connection with Bihar. The entire cause would fall within Mumbai. In such circumstances it is submitted that it was not open for transfer without consent under Section 191 Cr.P.C. It is submitted that it was not open for transfer without consent under Section 191 Cr.P.C. It is submitted that it was not open for transfer without consent under Section 191 Cr.P.C.

The Supreme Court rejected this argument and held that:

…the argument on behalf of petitioner that the case could not have been transferred by the CJM, Patna to the Judicial Magistrate, Sitamarhi without consent of the petitioner is not correct. The transfer of case from one court to another is an administrative function and it is not a judicial function. The transfer of case from one court to another is an administrative function and it is not a judicial function. The transfer of case from one court to another is an administrative function and it is not a judicial function.

The Supreme Court also held that the Bihar police had jurisdiction to register the FIR and investigate the case, and transferred the case to the Central Bureau of Investigation (CBI) for further investigation.

Arnab Goswami v. State of Maharashtra

This case involved a criminal defamation complaint filed by Congress leader Shashi Tharoor against journalist Arnab Goswami for making allegedly false and malicious statements about his role in the death of his wife Sunanda Pushkar. The complaint was filed in Delhi and transferred to Mumbai by the Supreme Court.

Arnab Goswami filed a petition in the Bombay High Court challenging the transfer of the case from one magistrate to another by the CMM without his consent. He alleged that:

…the impugned order dated 16th October, 2020 passed by respondent no.2 transferring the complaint from ACMM Court No.37, Esplanade, Mumbai to ACMM Court No.10, Ballard Pier, Mumbai is illegal, arbitrary, malafide and in violation of Section 19(1)(a) read with Section 191 of Cr.P.C. It is submitted that respondent no.2 has passed the impugned order without giving any reason or justification for transferring the complaint from one court to another. It is submitted that respondent no.2 has passed the impugned order without giving any opportunity of hearing to the petitioner or his counsel. It is submitted that respondent no.2 has passed the impugned order without considering the fact that the petitioner has already filed an application for exemption from personal appearance before ACMM Court No.37, Esplanade, Mumbai on 16th October, 2020 itself.

The Bombay High Court dismissed this petition and held that:

…the power of transfer under Section 192 Cr.P.C. is an administrative power vested in the Chief Judicial Magistrate or Chief Metropolitan Magistrate as the case may be and it can be exercised by him suo motu or on an application made by any party interested or any person on his behalf. The power of transfer under Section 192 Cr.P.C. does not require any notice or hearing to be given to any party before passing such order of transfer nor does it require any reason or justification to be recorded in writing for passing such order of transfer. The power of transfer under Section 192 Cr.P.C. is not subject to any limitation or restriction except that it can be exercised only in respect of cases which are pending before any Magistrate subordinate to him and which are triable by such Magistrate.

The Bombay High Court also held that Section 191 Cr.P.C. was not applicable in this case as it deals with cases where a magistrate takes cognizance under Section 190(1)© Cr.P.C., which was not the situation here.

Analysis

The above cases show that Section 19(1)(a) of CrPC can have implications for judicial independence in India, as it gives scope for transferring cases from one court to another without any clear criteria or transparency. This may create a perception of bias or favouritism among the parties or the public, and may undermine the confidence and credibility of the judiciary.

However, Section 19(1)(a) of CrPC also serves a useful purpose of ensuring smooth and efficient functioning of the courts, as it allows for redistribution of workload and allocation of cases according to availability and suitability of magistrates. It also enables quick disposal of cases and avoids unnecessary delays or adjournments.

Therefore, there is a need to balance the interests of judicial independence and judicial administration while applying Section 19(1)(a) of CrPC. Some possible measures that can be taken are:

• The CJM or CMM should exercise their discretion under Section 19(1)(a) of CrPC judiciously and reasonably, taking into account factors such as pendency, complexity, urgency and convenience of cases.
• The CJM or CMM should record their reasons for transferring cases under Section 19(1)(a) of CrPC in writing, and communicate them to the parties concerned.
• The CJM or CMM should avoid transferring cases under Section 19(1)(a) of CrPC at a late stage of trial or inquiry, unless there are compelling circumstances.
• The CJM or CMM should consult with the High Court before transferring cases under Section 19(1)(a) of CrPC involving sensitive or high-profile matters.
• The parties aggrieved by the transfer of cases under Section 19(1)(a) of CrPC should have a right to