Full Judgment Text
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CASE NO.:
Appeal (crl.) 994 of 2005
PETITIONER:
Samya Sett
RESPONDENT:
Shambu Sarkar & Anr.
DATE OF JUDGMENT: 12/08/2005
BENCH:
CJI R.C. Lahoti,C.K. Thakker & P.K. Balasubramanyan
JUDGMENT:
J U D G M E N T
(Arising out of S.L.P. (Criminal) No. 2979 of 2004)
C.K. Thakker, J.
Leave granted.
The present appeal reminds us of a golden advice given by this
Court before more than four decades. In State of U.P. vs. Mohd. Naim,
(1964) 2 SCR 363, a single Judge of the High Court of Allahabad while
deciding a criminal case, made certain sweeping and uncalled for
observations against the entire police force of the State. The State,
therefore, approached this Court making grievance against
indiscriminate observations by the High Court. Observing that the
case was exceptional in nature and inherent powers of expunging
remarks were called for, this Court, speaking through S.K. Das, J.
stated :
"The last question is, is the present case a case of an
exceptional nature in which the learned Judge should
have exercised his inherent jurisdiction under S. 561-
A Cr.P.C. in respect of the observations complained
of by the State Government? If there is one principle
of cardinal importance in the administration of justice,
it is this : the proper freedom and independence of
Judges and Magistrates must be maintained and they
must be allowed to perform their functions freely and
fearlessly and without undue interference by anybody,
even by this Court. At the same time it is equally
necessary that in expressing their opinions Judges and
Magistrates must be guided by considerations of
justice, fair-play and restraint. It is not infrequent that
sweeping generalizations defeat the very purpose for
which they are made. It has been judicially
recognized that in the matter of making disparaging
remarks against persons or authorities whose conduct
comes into consideration before courts of law in cases
to be decided by them, it is relevant to consider (a)
whether the party whose conduct is in question is
before the court or has an opportunity of explaining of
defending himself; (b) whether there is evidence on
record bearing on that conduct justifying the remarks;
and (c) whether it is necessary for the decision of the
case, as an integral part thereof, to animadvert on that
conduct. It has also been recognized that judicial
pronouncements must be judicial in nature, and
should not normally depart from sobriety, moderation
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and reserve." (emphasis supplied)
In the case on hand, a judicial officer is constrained to approach
this Court for expunging remarks made by a single Judge of the High
Court of Calcutta against him. The remarks were made in the light of
an order passed by the appellant in connection with a criminal case
instituted against one Shambhu Sarkar. It was the case of the
prosecution that the accused-Shambhu Sarkar was found possessing
1200 grams of ganza on September 21, 2003. He was, therefore,
arrested and a case was registered in Naihati P.S. Case No.115 of 1993
under Section 20 of the Narcotic Drugs and Psychotropic Substances
Act, 1951 (hereinafter referred to as "NDPS Act"). He was produced
on September 22, 2003 before the appellant who was then working as
Additional District & Sessions Judge, 6th Court, cum- Special Court
under the NDPS Act, Barsat, District 24 Parganas. An application for
bail was moved by the accused which was rejected by the appellant.
The case was directed to be listed on November 3, 2003 for the report
of the investigating officer. On November 3, 2003, another bail
application was moved by the accused which was also rejected by the
appellant. The case was then fixed for hearing on November 17, 2003.
On that day, the accused again made an application for bail which was
rejected and the case was adjourned to December 1, 2003. Before that
date, however, on November 21, 2003, an application for bail was
moved on behalf of the accused under sub-section (2) of Section 167 of
the Code of Criminal Procedure, 1973 (hereinafter referred to as "the
Code") contending inter alia that the statutory period for submission of
charge sheet was over and no charge sheet had been submitted by the
police. The accused was, therefore, entitled to be released on bail.
Noting these facts, the appellant passed an order releasing the accused
on bail on furnishing a bond of Rs.3,000/- with two sureties of
Rs.1500/- each. On the same day, however, at a later stage, it was
stated that the chargesheet had already been submitted. The case diary
was produced by the prosecution which showed that the cognizance for
an offence punishable under Section 20 of the NDPS Act had been
taken against the accused. But as the public prosecutor was not
present, those facts could not be brought to the notice of the court. In
the circumstances, the appellant recalled the earlier order.
The accused preferred Criminal Revision against the order passed
by the appellant in the High Court of Calcutta. The learned single
Judge of the High Court, by an order dated December 5, 2003, allowed
the revision and set aside the order passed by the appellant. According
to the learned single Judge, when the appellant had passed the first
order and granted bail to the accused, he could not have recalled the
order "in absence" of the accused. The second order, according to the
learned single Judge, therefore, was "not in accordance with law" and
liable to be set aside. The appellant was accordingly directed to pass a
fresh order. In the light of the directions issued by the High Court, the
appellant again heard the matter on December 15, 2003. The defence
counsel relied upon a decision of this Court in Aslam Babalal Desai vs.
State of Maharasthra, (1992) 4 SCC 272, and contended that once bail
was granted to the accused under sub-section (2) of Section 167 of the
Code, it could not be cancelled or recalled. The appellant, however,
distinguished Aslam and observed that the principle laid down therein
was not applicable to the case since it was a case of cancellation of bail
on filing of charge sheet. In the present case, bail was granted to the
accused on the ground of non-submission of charge sheet but in fact
charge sheet had already been submitted on the last day i.e. November
21, 2003 and hence the provisions of sub-section (2) of Section 167 of
the Code were not attracted. The appellant also noted that when he had
passed the order in the earlier part of the day, the learned public
prosecutor in charge of the case was "not present" and thus he could
not inform the court that the charge sheet against the accused had been
submitted. Later on, it was found that the charge sheet had been filed
against the accused. It was thus clear that sub-section (2) of Section
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167 of the Code did not apply. Accordingly, the appellant rejected the
prayer for bail. Against that order, once again the accused approached
the High court by filing Criminal Revision which was allowed by the
learned single Judge on January 30, 2004. He set aside the order, dated
December 15, 2003 and directed the appellant to pass necessary order
"forthwith" keeping in mind the observations made in the judgment.
While deciding the revision, the learned single Judge made certain
remarks and passed strictures against the appellant. Being aggrieved by
those remarks and observations, the appellant is before us. The learned
single Judge dealing with the revision against the second order passed
by the appellant herein, inter alia stated :
"It is clear from the order dated 15.12.2003 that the
learned Judge completely ignored the direction of
this Court and his order dated 15.12.2003 amounts
to clear violation of directions of this Court.
..... \005.. \005.. \005..
After perusing the order of the learned Judge
dated 15.12.2003 in the said case I find that the
learned Judge did not realise his mistake and not
only that, by his impolite and arrogant attitude he
has clearly ignored the order of this Court. His
order has made it clear that he did not realize the
observation of this Court that later part of order
dated 21.11.2003 was set aside by this Court as the
said order was bad in law.
..... \005.. \005.. \005..
The learned Judge did not realize that in our
country administration of Justice and justice
delivery system deserves that subordinate Courts
should obey, honour and follow the orders and
directions of higher courts. A subordinate court
cannot simply keep aside and ignore the direction of
the higher Court.
..... \005.. \005.. \005..
His conduct was aiming towards dangerous
trend and was about to destroy this system and
discipline. The manner in which learned Judge
passed the order on 15.12.2003 in spite of Hon’ble
Supreme Court’s pronouncement in Aslam Babaial
Desai’s case (supra) and direction of this Court
dated 5.12.2003 makes it clear that by ignoring
order of higher court he has made breach of judicial
discipline and has damaged out criminal justice
system.
..... \005.. \005.. \005..
In my opinion the conduct of learned Judge Sri
S. Sett is an example of ignoring direction of this
Court for which the entire matter should be placed
before the Administrative Committee of this Court
for taking appropriate action against the concerned
learned Judge."
On July 9, 2004, when the matter came up for admission, this
Court granted permission to file Special Leave Petition and issued
notice to the Registrar General of the High Court of Calcutta. The
Court, however, stated:
"Notice need not go to the respondents impleaded
by the petitioner as they have no interest in contesting
the petition".
We have heard the learned counsel for the appellant. As already
observed hereinabove, the facts are almost admitted. The appellant was
Additional District & Sessions Judge and in charge of Special Court
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under NDPS Act. Accused Shambhu Sarkar was produced before him
on September 22, 2003 and his bail application was rejected. On
November 21, 2003, an application for bail was moved by the accused
praying for grant of bail on the assertion by the accused that no charge
sheet had been submitted within the stipulated period. The appellant, in
absence of the public prosecutor and in the light of averments made by
accused, ordered him to be enlarged on bail. It was thus a case of
"default bail". On the same day, however, at a later stage, the public
prosecutor appeared, drew attention of the court that the factual basis
on which the accused was ordered to be enlarged on bail was incorrect,
the charge sheet had already been submitted and sub-section (2) of
Section 167 of the Code could not be invoked. The appellant
considered the submission of the public prosecutor, noted that when
the first order was passed, learned public prosecutor was not present
and after observing that the charge sheet had been submitted, recalled
the order. No doubt, the accused had right to challenge that order and
he in fact challenged the order by filing Criminal Revision. He
contended before the High Court that the second order was passed by
the appellant recalling the first order in his absence and without giving
him opportunity of hearing. The learned single Judge of the High
Court, in our opinion, was right in allowing revision petition of the
accused and in observing that once the order was passed in favour of
the accused releasing him on bail, it could not have been recalled
without observing principles of natural justice. The learned single
Judge was also right in setting aside the said order and in directing
the appellant to afford opportunity of hearing to the
accused and to pass an appropriate order "in accordance with law".
The appellant again heard the matter and rejected the bail application.
Negativing the contention of the accused that he was entitled to bail
under sub-section (2) of Section 167 of the Code and in view of the law
laid in Aslam, the appellant held that neither sub-section (2) of Section
167 of the Code nor ratio in Aslam could apply inasmuch as the
accused was not enlarged on bail and bail was not cancelled thereafter.
According to the appellant, within the requisite period, charge sheet
had been submitted by the police and the accused was not entitled
to the benefit of default bail.
Now, whether the second order dated December 15, 2003,
passed by the appellant was or was not correct is not the matter in issue
in the present proceedings. But, in our opinion, the learned single
Judge of the High Court was not justified in passing strictures against
the appellant to which reference has been made by us in the earlier part
of the judgment. It may be recalled that when the matter had come to
the High Court earlier, the learned single Judge set aside the order
passed by the appellant on November 21, 2003 and directed him to give
an opportunity of hearing to the accused and to pass an appropriate
order ’in accordance with law’. That direction had already been
complied with and carried out by the appellant. He afforded hearing to
the accused and rejected the application after considering the arguments
put forward by the learned advocate. In our considered opinion,
therefore, it cannot be said that the appellant had attempted ’to maintain
his own order’ though it was held to be bad by the High Court. It also
cannot be said that the appellant had "completely ignored" the
directions issued by the High Court. The learned single Judge of the
High Court is also not correct in observing that from the order dated
December 15, 2003, passed by the appellant, it is clear that the
appellant did not realize his mistake and had shown "impolite and
arrogant attitude". Likewise, it cannot be said that the appellant had
not shown respect to the order of the superior court and his conduct
would destroy judicial system and discipline.
To us, it is clear that the appellant, keeping in view the directions
issued by the High Court, heard the matter afresh after affording
opportunity of hearing to the accused and holding that the provisions
relating to ’default bail’ would not apply and the ratio in Aslam was not
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attracted, rejected the prayer for bail. Even if it is assumed that the
appellant was not right in rejecting the application for bail of accused, it
was not a case which called for remarks and strictures against him.
This Court has, in several cases, deprecated the practice on the
part of Judges in passing strictures and in making unsavoury,
undeserving, disparaging or derogatory remarks against parties,
witnesses as also subordinate officers.
In Alok Kumar Roy v. Dr. S.N. Sarma & Another, (1968) 1 SCR
813, the vacation Judge of the High Court of Assam and Nagaland
passed an interim order during vacation in a petition entertainable by
Division Bench. After reopening of the Court, the matter was placed
before the Division Bench presided over by the Chief Justice in
accordance with the High Court Rules. The learned Chief Justice made
certain remarks as to "unholy haste and hurry" exhibited by the learned
vacation Judge in dealing with the case. When the matter reached this
Court, Wachoo, C.J., observed :
"It is a matter of regret that the learned Chief Justice
thought fit to make these remarks in his judgment
against a colleague and assumed without any
justification or basis that his colleague had acted
improperly. Such observations even about Judges of
subordinate courts without the clearest evidence of
impropriety are uncalled for in a judgment. When
made against a colleague they are even more open to
objection. We are glad that Goswami, J. did not
associate himself with these remarks of the learned
Chief Justice and was fair when he assumed that
Dutta J. acted as he did in his anxiety to do what he
thought was required in the interest of justice. We
wish the learned Chief Justice had equally made the
same assumption and had not made these observations
castigating Dutta J. for they appear to us to be without
any basis. It is necessary to emphasis that judicial
decorum has to be maintained at all times and even
where criticism is justified it must be in language of
utmost restraint, keeping always in view that the
person making the comment is also falliable."
(emphasis supplied)
In State of M.P. v. Nandlal Jaiswal & Others, (1986) 4 SCC 566,
disparaging and derogatory remarks were made by the High Court
against the State Government. When the matter came up before this
Court and a complaint was made against these remarks, it was observed
by this Court that the remarks were "totally unjustified and
unwarranted".
Bhagwati, C.J. stated :
"We may observe in conclusion that judges should
not use strong and carping language while criticizing
the conduct of parties or their witnesses. They must
act with sobriety, moderation and restraint. They
must have the humility to recognize that they are not
infallible and any harsh and disparaging strictures
passed by them against any party may be mistaken
and unjustified and if so, they may do considerable
harm and mischief and result in injustice."
In A.M. Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533,
which was an offshoot of Nandlal Jaiswal, certain observations were
made by the High Court against the conduct of Advocate General of the
State. Quoting Justice Cardozo and Justice Frankfurter, the Court
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stated that the Judges are flesh and blood mortals with individual
personalities and with normal human traits. Still judicial restraint and
discipline are as necessary to the orderly administration of justice as
they are to the effectiveness of the army. The duty of restraint should
be constant theme of judges, observed the Court. "This quality in
decision making is as much necessary for judges to command respect
as to protect the independence of the judiciary."
The Court further added :
"The Judge’s Bench is a seat of power. Not only do
judges have power to make binding decision, their
decisions legitimate the use of power by other
officials. The judges have the absolute and
unchallengeable control of the court domain. But
they cannot misuse their authority by intemperate
comments, undignified banter or scathing criticism
of counsel, parties or witnesses. We concede that
the court has the inherent power to act freely upon
its own conviction on any matter coming before if
for adjudication, but it is a general principle of the
highest importance to the proper administration of
justice that derogatory remarks ought not to be made
against persons or authorities whose conduct comes
into consideration unless it is absolutely necessary
for the decision of the case to animadvert on their
conduct."
In the matter of ’K’ A Judicial Officer (2001) 3 SCC 54, one of
us (R.C. Lahoti, J.), (as his Lordship then was) again considered the
relevant decisions on the point and said :
"Several cases are coming to our notice wherein
observations are being made against the members
of subordinate judiciary in the orders of superior
forums made on judicial side and judicial officers
who made orders as presiding Judges of the
subordinate Courts are being driven to the
necessity of filling appeals to this Court or
petitions before the High Courts seeking
expunging of remarks or observations made and
sometimes strictures passed against them behind
their back. We would, therefore like to deal with
a few aspects touching the making of
observations or adverse comments against
judicial officers and methodology to be followed
if it becomes necessary.
A Judge entrusted with the task of
administering justice should be bold and feel
fearless while acting judicially and giving
expression his views and constructing his
judgment or order. It should be no deterrent to
formation and expression of an honest opinion
and acting thereon so long as it is within four-
corners of law that any action taken by a
subordinate judicial officer is open to scrutiny in
judicial review before a superior forum with
which its opinion may not meet approval and the
superior court may upset his action or opinion.
The availability of such fearlessness is essential
for the maintenance of judicial independence.
However, sobriety, cool, calm and poise should
be reflected in every action and expression of
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Judge." (emphasis supplied)
[See also In the matter of : ’RV’, A Judicial Officer, (2004) 7 SCC
729]
In State of Bihar vs. Nilmani Sahu & Another, (1999) 9 SCC 211
while disposing of the Special Leave Petition against an order passed
by a single Judge of the High Court of Patna, this Court observed; "We
find that the view taken by the learned single Judge, Justice P.K. Dev,
with due respect, if we can say so, is most atrocious".
Feeling aggrieved by the remarks, an application was made in a
disposed of Special Leave Petition and it was submitted to this Court
that the remarks were not necessary. Allowing the application and
deleting the remarks, this Court stated that they were "wholly
inappropriate".
It is universally accepted and we are conscious of the fact that
judges are also human beings. They have their own likes and dislikes;
their preferences and prejudices. Dealing with an allegation of bias
against a Judge, in Linahan, Re, (1943) 138 F IInd 650, Frank J. stated;
"If, however, ’bias’ and ’partiality’ be defined to
mean the total absence of preconceptions in the mind
of the Judge, then no one has ever had a fair trial, and
no one ever will. The human mind, even at infancy,
is no blank piece of paper. We are born with
predispositions and the processes of education, formal
and informal, create attitudes which precede
reasoning in particular instances and which, therefore,
by definition are prejudices."
Justice John Clarke has once stated :
"I have never known any judges, no difference how
austere of manner, who discharged their judicial
duties in an atmosphere of pure, unadulterated reason.
Alas! we are ’all the common growth of the Mother
Earth’ \026 even those of us who wear the long robe."
(emphasis supplied)
Similar was the view of Thomas Reed Powell, who said;
"Judges have preferences for social policies as you
and I. They form their judgments after the varying
fashions in which you and I form ours. They have
hands, organs, dimensions, senses, affections,
passions. They are warmed by the same winter and
summer and by the same ideas as a layman is."
In the present case, however, as we have already noted in the
earlier part of the judgment, whether the order passed by the appellant
was correct or not, but the remarks made, strictures passed and
directions issued by the learned single Judge of the High Court against
the appellant were improper, uncalled for and unwarranted. Apart from
the fact that they were neither necessary for deciding the controversy
raised before the Court nor integral part of the judgment, in the facts
and circumstances of the case, they were not justified. We, therefore,
direct deletion of those remarks.
The appeal is accordingly allowed to the extent indicated above.
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