Full Judgment Text
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PETITIONER:
R. K. LAKSHMANAN
Vs.
RESPONDENT:
A. K. SRINIVASAN & ANR.
DATE OF JUDGMENT01/08/1975
BENCH:
SARKARIA, RANJIT SINGH
BENCH:
SARKARIA, RANJIT SINGH
CHANDRACHUD, Y.V.
BHAGWATI, P.N.
CITATION:
1975 AIR 1741 1976 SCR (1) 204
1975 SCC (2) 466
CITATOR INFO :
RF 1986 SC 819 (21)
R 1987 SC1436 (14)
R 1990 SC1737 (14)
ACT:
Practice and procedure-Disparaging remarks against
persons or authorities whose conduct for consideration
before Courts of Law-Tests to be applied.
HEADNOTE:
The appellant was a District Magistrate. In a case
pending before him an affidavit of one of the sureties was
attested by the respondent who was a practising advocate On
the failure of the surety to appear in the Court on the due
date, notice was issued to him. The notice having been
returned unserved, the Magistrate issued a notice to the
respondent, despite the fact that he was not the duly
constituted attorney of the surety, calling upon him to
appear in the court in connection with this case. The
respondent thereupon moved the High Court under s. 561A Cr.
P.C. alleging that the notice was arbitrary and amounted to
an abuse of the process of the court because there was no
provision in the Criminal Procedure Code empowering the
Magistrate to issue such a notice to him that he was in no
way connected with the bail bond and that the notice was
issued to humiliate him and the Bar since the latter had
passed a resolution protesting against the improper and
discourteous behaviour of the Magistrate. The respondent
prayed that the appellant be directed to withdraw the
notice.
The High Court called for a report from the appellant
as to the circumstances in which he had thought fit to issue
notice as also the provision of law. After receiving the
appellant’s report the High Court quashed the notice holding
that the action of the Magistrate constituted grave misuse
of his power and flagrant abuse of the process or the Court.
The appellant’s application to the High Court for
expansion of certain remarks made against him was rejected.
Dismissing the appeal to this Court.
^
HELD : (1) The tests to be applied in considering
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expansion of disparaging remarks against persons or
authorities whose conduct comes in for consideration before
courts of law in cases to be decided by them are (i) Whether
the party whose conduct is in question is before the Court
or has an opportunity of explaining or defending himself;
(ii) Whether there is evidence on record hearing on that
conduct justifying the remarks and (iii) Whether it is
necessary for the decision of the case, as an integral part
thereof, to animadvert on that conduct. lt has also been
recognised that judicial pronouncements must be judicial in
nature and should not normally depart from sobriety,
moderation and reserve. [209A-D]
State of U.P. V. Muhammad Nain, [1964] 2 S.C.R. 363 at
374, applied.
In the present case in response to the High’ Court’s
notice the appellant submitted a detailed report Before the
High Court he was represented by a senior Public
prosecutor. He had thus adequate opportunity of explaining
his conduct in defending the impugned action. The appellant
cannot complain that the remarks were passed by. the High
Court without affording him due opportunity to explain and
defend his action. [209E-F]
(2) Though the notice by itself was not a very
offensive document the allegation of bad faith and that it
was issued to humiliate an advocate and the Bar who had
earlier passed a resolution complaining against the
misbehaviour of the appellant showed that the notice was
illegal arbitrary and tainted with bad faith. It was a
preliminary step taken under cover of s. 476 Cr. P.( for
possible prosecution of the Advocate. [209G-210C]
205
(3)(a) The notice issued to the surety which was
returned by the police stated that the service could not be
effected for want of sufficient information and more
detailed particulars regarding the surety while the
appellant stated that "it was reported by the police that
there was no such person as far as they could gather from
the detailed inquiries made and, therefore, notice could not
be served" Evidently this misleading stand was taken by the
appellant to show that action under s. 476 Cr. P.C. against
the Advocate would not be groundless. [210E H]
(b)The remarks of the High Court were an integral part
of the reasoning of the High Court. They were not irrelevant
or foreign to the matter under issue.. They were
inextricably intertwined with the findings and the order
recorded by the High Court. Excision of these remarks would
emasculate the order of the High Court robbing it of its
very rationale.[211A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1
30 of 1975.
Appeal by Special Leave from the Judgment and Order
dated the 13th March, 1974 of the Kerala High Court in
Criminal Misc. Petition No. 7 of 1974 with Crl. M.P. No.
967/73.
K. T. Harindranath and T. T. Kunhikanan, for the
appellant.
A. S. Nambiar for respondent no. 1.
K. R. Nambiar, for respondent No. 2.
The Judgment of the Court was delivered by SARKARIA,
J.-This appeal by special leave is directed against a
judgment of the Kerala High Court rejecting the appellant’s
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application under s. 561-A. Criminal Procedure Code for
expunction of certain remarks made against him in the High
Court’s order, dated 20-11-1973, in Criminal Misc. Petition
No. 967 of 1973.
The appellant is a member of the Kerala Judicial
Service, while the respondent herein is an Advocate
practising at Ernakulam. On 14-8-1973, the appellant was
working as District Magistrate Ernakulam. One Kamaleswaran,
who was an accused in C.C. Nos. 216 and 217 of 1973 pending
before him, was ordered to be released on bail on his
executing a bond for Rs. 1,000/- with two sureties in the
like amount. The two sureties were Kamaleswaran, the brother
of the accused, and Sri Thankappan Nair. Thankappan’s
address was given as "businessman, son of Parameswaran
Pillai, Thambanoor Trivandrum." The affidavit filed by
Thankappan, while offering himself as surety, was attested
by Sri A. K. Srinivasan Advocate stating "solemnly affirmed
at Ernakulam on this 14th day of August 1973 and signed
before me who is personally known to me".
The above cases stood posted for examination of the
accused under s. 342 of the Code of Criminal Procedure. When
on that date the cases were called for hearing, the accused
was absent. His Counsel Shri Srinivasan appeared and
represented that although he had no information from the
accused, who had to come from Trivandrum. yet he was
expecting him to reach the court in time. The appellant
(District Magistrate) thereupon ordered cancellation of the
bail bonds and
206
directed issue of notices to the Surety under s. 514 of the
Code of Criminal Procedure calling upon him to show cause
before 16-10-1973 why the terms of the Surety bonds
providing for forfeiture of the sum of Rs. 1,000/- be not
enforced. The notices issued to the Surety Thankappan Nair,
were returned unserved whereupon on the 17th October, 1973.
the appellant issued a non-bailable warrant for the arrest
of the Surety. On the following day, the appellant issued a
notice to Sri A. K. Srinivasan, Advocate which ran as under:
"Ernakulam District Magistrate Court No. M.C. 106
and M.C. 107 of 1973.
Notice for Shri A. K. Srinivasan, Advocate.
The above-mentioned cases are being fixed for
hearing 3-11-1973 at 11 A.M. You are required to
appear before the Court. .... .............
By order
Sd./
18th October. 1973 SARISHADAR."
It may be mentioned here that in the proceedings
initiated under s. 514 of the Code of Criminal Procedure in
the two cases . Mr. Srinivasan, Advocate was not the duly
constituted attorney or the Surety, Thankappan.
On receipt of the aforesaid notice, Mr. Srinivasan,
Advocate filed Crl. M.P. 967 of 1973 before the High Court
of Kerala under s. 561-A of the Code of criminal Procedure
praying that the appellant be directed to withdraw the
notice, dated 18-10-1973, on the ground that the issue of
notice was arbitrary and amounted to an abuse of the process
of the court because-
(a) There is no provision in the Criminal
Procedure Code empowering the Magistrate to
issue such a notice to command the Advocates’
appearance when he is not connected either as
a witness or a party or otherwise with the
proceedings relating to cancellation of bail-
bonds;
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(b) The notice was issued to humiliate him and
the Bar since the latter had passed a
resolution, on 21-7-1973, pro testing against
the improper and discourteous treatment meted
out by the Magistrate to the members of the
Bar.
The learned Judge of the High Court before whom this
petition came up for hearing, by an order dated 2-11-1973,
called for a report from the appellant by 5-11-1973
regarding the allegations contained in, the Advocate’s
petition and particularly as to under which provision of law
and under what circumstances he had thought it fit to issue
a notice to the Advocate requiring him to appear before him
on 3-11-1973. The appellant thereupon submitted the report
to the High Court, the material part of which reads:
"When notice was sent to the surety Thankappan
Nair whose address is given as, business-man,
Thambanoor,
207
Trivandrum, it was reported by the Police that there is
no such person, as far as they could gather, from the
detailed enquiries made and therefore notice could not
be served. In the affidavits filed by Shri Thankappan
Nair in these two cases when he offered himself as
surety the signatures of the deponent were attested by
Shri A. K. Sreenivasan, Advocate stating Solemnly
affirmed at Ernakulam on this the 14th day of August
1973 and signed before me? who is personally, known to
me. From the report of the Police Trivandrum it
appeared that this might be a case of false
personation. It is seen that in several cases the
accused have been got re leased by false sureties.
have already submitted a report about this to the
Hon’ble High Court as per my letter dated 31-10-1973.
There are several other similar instances of false
personation and filing false affidavits pending enquiry
before this Court. Under the circumstances in this case
also it appeared to the court that a false affidavit
has been filed by false personation. If it is false
personation, the attestation by the advocate should
necessarily be false. The offences under Sections 193,
196, 197, 199 and 205 of the Indian Penal Code appear
to have been committed. These are some of the offences
mentioned in Section 195 Cr]. P.C. Under section 476 of
the Cr. P.C. when any Civil, Revenue or Criminal Court
is whether on application made to it in this behalf or
otherwise, of opinion that it is expedient in the
interest of justice that an enquiry should be made into
any offence referred to in Section 195, Sub-section
(1), Cl. (b) or cl. (c), which appears to have been
committed in or in relation to a proceeding in that
court, such court may, after such preliminary inquiry
if any, as it thinks necessary, record a finding to
that effect and make a complaint thereof in writing
signed by the presiding officer of the Court.. To
ascertain whether there is a person as described in
the affidavits filed in the name of Shri Thankappan
Nair notice was issued as part of the preliminary
enquiry contemplated under Section 476 Cr. P.C. to Shri
A. K. Sreenivasan who has attested the affidavits of
the said Thankappan Nair stating that the deponent is
personally known to him. This had to be done in view of
the report of the police. Notice to Shri A K.
Sreenivasan was issued to appear in court on 3-11-1913
not in his capacity as Advocate appearing for the
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accused but as the person who has attested the
affidavit of the said surety stating that he personally
knows the surety. The court can make the preliminary
enquiry mentioned above, either through the police or
to the accused or to the other surety or to the person
who attested the affidavit. In this matter accused is
absconding. the other surety could not be served and
the police report is as stated above. So the only
person to whom the inquiry under 476 could be made in
the circumstances is the person who has attested the
affidavit."
208
On 8-11-1973, the Advocate filed an affidavit in which
he inter alia averred:
"I submit that the present explanation that the
notice was issued to me as a part of the preliminary
enquiry contemplated under sec. 476 of the Criminal
Procedure Code is obviously an after-thought, since it
is difficult that any reasonable man would have
inferred from the Police Report dated 12-10-1973 that
Sri Thankappan Nair" one of the sureties was a non-
existent person and therefore the attestation mad by me
on 14-8-1973 would have been false".
He further reiterated with elaboration the allegations in
his petition that the impugned action of the Magistrate
lacked good faith and due care and had been issued to
humiliate the bar generally and the petitioner particularly.
After taking into consideration the appellant’s report
and other material on record, the High Court quashed the
notice holding that the "action of the District Magistrate
in issuing the impugned notice to the appellant constitutes
grave misuse of his power and flagrant abuse of the process
of the court".
The appellant then moved an application (Cr. M.P. No. 7
of 1974) for expunction of the remarks made against him by
the High Court in its order, dated 20-11-1973. The
application was rejected.
Against that order, dated 13-3-1974, refusing to
expunge the ad- verse remarks, Shri Lakshmanan the District
Magistrate has come in appeal to this Court.
11l the reply affidavit, dated 21-3-1975, filed in this
Court, the appellant has submitted that if this Court is
prima In of the opinion that the passages requested to be
expunged are too many and spread over throughout the order,
at least these four passages be expunged from the order in
question:
"(i) I cannot help remarking that the information
furnished to this Court by the District Magistrate in
his report dated 3-11-1973 regarding the contents of
the Police Report is grossly inaccurate and
misleading."
"(ii) I make no secret of my opinion that the
action taken by the District Magistrate, in the present
case in issuing a notice to the petitioner, who is a
member of the bar, was most highly arbitrary and the
very casual fashion in which the said action has been
done renders it all the more objectionable."
"(iii) that the action taken against the
petitioner by the District Magistrate is totally devoid
of any legal sanction and highly arbitrary. ’
209
"(iv) l hold that the action of the District
Magistrate in issuing the impugned notice to the
petitioner constitutes a grave misuse of his power and
also flagrant abuse of the process of his court".
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The tests to be applied in considering the expunction
of disparaging remarks against persons or authorities whose
conduct comes in for consideration before courts of law in
cases to be decided by them, were neatly summed up by this
Court, speaking through S. K. Das, J., in State of U.P. v.
Muhammad Nain,(1) thus:
"(i) Whether the party whose conduct is in
question is before the court or has an
opportunity of explaining or defending
himself;
(ii) Whether there is evidence on record bearing
on that conduct justifying the remarks; and
(iii)Whether it is necessary for the decision of
the case, as an integral part thereof, to
animadvert on that con duct. It has also been
recognised that judicial pronouncements must
be judicial in nature, and should n not
normally depart from sobriety, moderation and
reserve."
Let us now apply these tests to the present case.
In the petition filed under s. 561-A, Code of Criminal
Procedure by the Advocate, the appellant was impleaded as
the sole respondent. The appellant was called upon by the
High Court to explain his conduct in issuing the impugned
notice. In reply, the appellant submitted a detailed report.
It is not controverted that before the High Court. the
appellant was represented by a senior Public Prosecutor who
had been directed to defend him by the State Government. The
appellant had thus adequate opportunity of explaining his
conduct and defending the impugned action. Indeed, in his
report submitted to the High Court, he did his best to
justify his conduct in that case. The appellant therefore,
cannot complain that the remarks in question were passed by
the High Court without affording him due opportunity to
explain and defend his action.
Nor can it be said that this is a case where there was
no evidence on record bearing on the conduct of the
appellant to which the re marks in question pertain.
It is true that ex-facie, the notice requiring the
Advocate to attend the Court of the Appellant on 3-11-73,
though couched in curt and peremptory language, was not, by
itself, a very offensive document. But the Advocate’s
allegation was that it had not been issued in good faith and
the sole purpose of issuing this notice was to humilate the
Advocate and the Bar who had earlier passed a resolution
complaining to the High Court against the misbehaviour of
the appellant towards the members of the Bar. Subsequently,
on 8-11-1973 the
210
Advocate field an affidavit setting forth full particulars
of the circumstances which, according to him, showed how the
notice was illegal. arbitrary and tainted by bad faith. He
annexed a copy of the Bar’s resolution, to his affidavit.
the report sent by the appellant to the High Court confirmed
that the allegations made in the Advocate’s petition were
not empty apprehensions. The report revealed that the notice
was not an innocuous request to the Counsel to furnish
better k particulars of the Surety, but it was a preliminary
step taken under cover of s. 476, Criminal Procedure Code
for possible prosecution of the Advocate. The appellant gave
a clear clue to his ulterior intent, when in the report, he
said:
"Notice to Shri A. K. Sreenivasan was
issued....not in his capacity as Advocate appearing for
the accused but as the person who has attested the
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affidavit of the said Surety .... "
Thus there was ample material before the High Court
bearing on the impugned conduct of the appellant, justifying
the adverse comments in question.
Again, the passages sought to be expunged could not be
said to be irrelevant or alien to the subject matter of the
case before the High Court.
The notice issued to the Surety had been returned by
the police with an endorsement which, rendered into English,
reads as under:
"Notice could not be served on the person referred
to in the notice as he (process server) did not get any
information about him after detailed enquiry made about
him in Tampanoor from different businessmen. For want
of sufficient information and more detailed particulars
regarding the nature of the business conducted at
Tampanoor by the person referred to in the notice, the
service could not be ’ effected.
Submitted for orders".
But in his report submitted to the High Court, the
appellant stated that "it was reported by the Police that
there is no such person as far as they could gather from the
detailed inquiries made and therefore notice could not be
served". Manifestly, this statement did not present a
faithful and correct picture of the endorsement of the
process server. Evidently, this misleading stand was taken
by the appellant to show that action under s. 476, Criminal
Procedure Code against the Advocate would not be groundless.
In these premises it cannot be said that the observations of
the High Court that "information furnished to this Court by
the District Magistrate in his report dated 3-11-73
regarding the contents of the Police Report is grossly
inaccurate and misleading" was unjustified.
211
The substance of the other remarks in question is
substantially the same, viz., that the issue of the impugned
notice to the Advocate by the appellant was illegal and
arbitrary and amounted to a gross abuse of the process of
the Court. These remarks were an integral part of the
reasoning of the High Court. They were not irrelevant or
foreign to the matter in issue. They were inextricably
intertwined with the findings and the order recorded by the
High Court in that case. Excision of these remarks would
emasculate the order of the High Court, robbing it of its
very rationale.
Judged by the aforesaid tests, no case for interference
by this Court has been made out.
Accordingly, we dismiss the appeal, with no order as to
costs.
P.B.R. Appeal dismissed.
212