Full Judgment Text
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CASE NO.:
Appeal (crl.) 1152 of 2004
PETITIONER:
IN THE MATTER OF RV, A JUDICIAL OFFICER
RESPONDENT:
..................
DATE OF JUDGMENT: 06/10/2004
BENCH:
CJI R.C. LAHOTI, G.P. MATHUR & P.P. NAOLEKAR
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P.(Crl.) No. 3013 of 2004)
R.C. LAHOTI, CJI.
Leave granted.
The appellant before us is a member of Higher Judicial
Service, presently posted as an Additional District Judge in a
Fast Track Court. The appellant was Presiding Judge of the trial
court wherein an accused was facing trial (since 1994) in a
criminal case on charges under Sections 420, 467, 468 & 471 of
the Indian Penal Code. In the year 2001, the accused filed a
petition under Section 482 of the Code of Criminal Procedure (for
short "the Cr.P.C.") seeking quashing of the proceedings on the
ground of delay at the trial. On 8th March, 2001 a learned
Single Judge of the High Court hearing the petition filed by the
accused, passed an order directing the trial court to take all
possible steps immediately to ensure that the witnesses were
positively examined on 24th April, 2001. The trial court was also
directed to explain as to why for such a long time, very often
process was not issued to the witnesses resulting in prolonging
of the trial. The petition under Section 482 of the Cr.P.C. was
kept pending. It came up for hearing again on 27th April, 2001.
The learned counsel for the accused-petitioner seems to have
complained before the High Court that only 20 witnesses were
called by the trial court to remain present on 24th April, 2001 out
of whom only 5 witnesses turned up and they were examined
while the next date was appointed as 29th May, 2001. The
learned Single Judge hearing the petition seems to have felt
agitated on non-receipt of the explanation from the Presiding
Judge of the trial court in the terms as directed on 8th March,
2001. The case was taken up for hearing in the earlier part of
the day. The Registry was directed to seek an explanation from
the Presiding Judge of the trial court post-haste on telephone
and the case was directed to be taken up in the later part of the
day i.e. post-lunch. The oral response as received on telephone
and brought to the knowledge of the learned Single Judge of the
High Court was a gist of the explanation which was received on
the following day in writing. The Presiding Officer of the trial
court explained that the summons to the witnesses who were to
be examined were issued in time for recording evidence on the
appointed date i.e. 24th April, 2001. However, only 5 witnesses
turned up and their statements were recorded. In all, there
were 60 witnesses to be examined. The trial court had directed
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them to be summoned by appointing 3 dates of hearing i.e. 29th
May, 2001; 12th June, 2001 and 26th June, 2001. The date 29th
May, 2001 was appointed for examining such witnesses as had
failed to turn up on 24th April, 2001 while the remaining two
dates were appointed for examining 20 witnesses on each date.
So far as the non-issuance of the process ( and also the non-
examination of the witnesses) is concerned it will be useful to
extract and reproduce the following part of the explanation
furnished by the trial court:-
"Explanation was sought from the
concerned Clerk for not issuing the process
earlier. In between the application of the
accused for closing the prosecution
evidence, total 11 hearings took place. Out
of which process was issued for three dates.
The Clerk explained that due to excess work
load, process could not be issued. Strict
instructions have been given for issue of
process to the Clerk.
Delay in deciding the case was also
due to non-returning the process by the
police. On indicating the orders of the
Hon’ble High Court, while issuing the letter
with process dated 24/4/2001, 13 processes
were served. Out of which five witnesses
were present whose evidence was recorded.
Sir, approximately four thousand
cases were pending before this Court
already. Currently, about two thousand five
hundred cases are pending. Different work
remains excessive. In this case, there are
four different counsels for the accused. For
that the Court has to spend more time for
their presence at one time.
Returning of process by the police is
also unsatisfactory. At number of times,
processes are not returned. Even in
returning the process, reports are sent
incomplete. Even after these circumstances,
I assure you, Sir, that in deciding the cases,
every step will be taken for early disposal."
On 27th April, 2001 the learned Single Judge of the High Court
directed the petition under Section 482 of the Cr.P.C. preferred
by the accused to be dismissed. However, at the same time in
the operative part of the order, the learned Single Judge directed
the Registrar General to ’initiate necessary departmental
proceedings’ against the Presiding Judge of the trial court
’looking to the conduct of the trial judge’ and ’for not complying
with the order’ passed by the High Court on 8th March, 2001 ’in
not submitting his explanation by today and for the gross delay
in the trial’. A copy of the order was directed to be kept on the
personal file of the Judge concerned.
The Subordinate Judge left with no other alternative
preferred a petition to the High Court seeking expunging of the
observations made and direction given by the learned Single
Judge to the extent to which they were directed against him.
The petition has been disposed of by the impugned order by
another learned Single Judge of the High Court who has
observed that the explanation which was sought to be provided
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by the learned Subordinate Judge in his petition was available to
be set up by way of defence in the disciplinary proceedings
directed to be initiated against him and, therefore, it could not
be said that the order of the High Court dated 27th April, 2001
would result in any manifest injustice or would amount to abuse
of process of any Court. Feeling aggrieved, the Subordinate
Judicial Officer has filed this appeal by special leave.
The High Court has made appearance through a counsel
instructed by the Registrar of the High Court. A counter
affidavit sworn in by the Registrar(Writs) of the High Court has
been filed contesting the petition for special leave to appeal.
We have heard the learned senior counsel for the
appellant-Judicial Officer as also the learned counsel for the High
Court. We are satisfied that the impugned order of the High
Court runs counter to the law laid down by this Court in a series
of pronouncements and, therefore, is liable to be set aside.
Time and again this Court has emphasised the need for
keeping the subordinate judiciary under control \026 disciplinary,
administrative and judicial - of the High Court. However, at the
same time this Court has cautioned the High Courts by stressing
upon the need for restraint, care and circumspection while
exercising its power of superintendence lest those who dispense
justice to others should themselves suffer injustice. It would
suffice to make a reference to only a few of the decisions. In
Mahabir Singh Vs. State of Haryana [2001] 7 SCC 148, this
Court emphasised the need for maintaining judicial restraint and
avoiding unnecessary castigation of (police and) subordinate
judiciary. Again in R.C. Tamrakar & Anr. Vs. Nidi Lekha
[2001] 8 SCC 431, reiterating its observations in several earlier
cases this Court held that judicial restraint is a virtue
concomitant of every judicial dispensation. The higher tiers are
provided in the judicial hierarchy to set right the errors which
could possibly have crept, in the findings, orders or proceedings
of the courts at the lower tiers. "Such powers are certainly not
for belching diatribe at judicial personages in lower cadre. It is
well to remember the words of a jurist that ’a Judge who has not
committed any error is yet to be born’." Castigating members
of the subordinate judiciary does no good to the system as
placing on public record, the aspersions cast on them, shakes
the very confidence of the people in judicial institutions. Such
remarks, if avoidable and uncalled for, compel the members of
the subordinate judiciary to approach the High Court seeking
expunging of the remarks, which is rather unfortunate.
"In the matter of: ’K’ a Judicial Officer" [2001] 3 SCC
54, a Bench presided over by the then Chief Justice of India had
an occasion for dealing with such an issue in very many details
and from several angles. This Court reminded the High Courts
that the supervisory jurisdiction vesting in them over the
subordinate judiciary was meant to be exercised like a friend,
philosopher and guide. The power vesting in the higher echelons
is not meant for cracking a whip or for being exercised with
vindictiveness on errors, mistakes or failures committed by those
in lower echelons which does no good to the system but has to
be exercised for the purpose of toning up the system so that the
mistakes, errors or failures which may have been committed
unknowingly or unwittingly are not repeated. The Court
illustratively enumerated the consequences which flow onto the
subordinate judiciary when the High Courts indulge in castigating
its members, which is at times, an uncalled for display of judicial
might. This Court took care to see that its observations may not
be misunderstood and suggested an alternative, safe and
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advisable course so as to be just and fair to the members of the
subordinate judiciary whose conduct or behaviour having come
to notice during the course of hearing on judicial side did not
meet the approval of the High Court. This Court suggested :-
"The conduct of a judicial officer,
unworthy of him, having come to the notice
of a Judge of the High Court hearing a
matter on the judicial side, the lis may be
disposed of by pronouncing upon the
merits thereof as found by him but avoiding
in the judicial pronouncement criticism of,
or observations on the "conduct" of the
subordinate judicial officer who had decided
the case under scrutiny. Simultaneously,
but separately in-office proceedings may be
drawn up inviting attention of Hon’ble Chief
Justice to the facts describing the conduct of
the Subordinate Judge concerned by
sending a confidential letter or note to the
Chief Justice. It will thereafter be open to
the Chief Justice to deal with the
subordinate judicial officer either at his own
level or through the Inspecting Judge or by
placing the matter before the full court for
its consideration. The action so taken would
all be on the administrative side. The
Subordinate Judge concerned would have
an opportunity of clarifying his position or
putting forth the circumstances under which
he acted. He would not be condemned
unheard and if the decision be adverse to
him, it being on administrative side, he
would have some remedy available to him
under the law. He would not be rendered
remediless."
Reverting back to the facts of the present case, we are of
the opinion that the learned Single Judge of the High Court
passing the order dated 24th April, 2001 would not probably have
made those observations and directed initiation of departmental
inquiry if only he would have waited for a day when the written
and detailed explanation furnished by the Presiding Judge of the
trial court would have been available before him. It is a
judicially noticeable fact that the subordinate courts are over-
burdened and are called upon to deal with such number of cases
as is totally out of proportion with what a Judge can reasonably
be supposed to handle. Yet they do their best. The appellant
has in his explanation pointed out the huge pendency of cases
before him, the number of witnesses (about 60) which were
required to be examined before concluding the trial, the
recalcitrant process serving agency and again the over-burdened
Clerk in the Court issuing the processes \026 summonses and
warrants, and at the cap of all these the number of different
counsel appearing for a number of accused persons who all insist
on their convenience also being accommodated by the Court.
The learned Single Judge of the High Court also acted with
undue haste inasmuch as he insisted on the explanation being
called for from the trial Judge on that very day and that too
telephonically. The explanation dated 28th April, 2001, in our
opinion, is reasonable and satisfactorily explains the reasons for
the alleged non-compliance with the orders made by the learned
Single Judge on 8th March, 2001.
The High Court in its impugned order ought to have
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directed expunging of the remarks contained in the order dated
27th April, 2001 and prejudicial to the appellant.
The appeal is allowed. The petition filed before the High
Court by RV, the member of the subordinate judiciary and
disposed of by the impugned order shall stand allowed. The
adverse observations made against the appellant in the order
dated 27th April, 2001 and the direction contained therein shall
stand expunged.
Before parting, we make it clear that we have directed the
observations being expunged and directions contained in the
judicial order being set aside as we think that the same were
uncalled for and should not have been made a part of the judicial
order more so made without affording the Judicial Officer an
opportunity of hearing. However, this order would not come in
the way of the High Court if it chooses to initiate any
proceedings in exercise of the jurisdiction conferred on it under
Article 235 of the Constitution of India but independently of the
observations made and direction given in the order dated 27th
April, 2001.