Full Judgment Text
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CASE NO.:
Appeal (crl.) 165 of 2001
PETITIONER:
IN THE MATTER OF ’K’ A JUDICIAL OFFICER
RESPONDENT:
IN THE MATTER OF ’K’ A JUDICIAL OFFICER
DATE OF JUDGMENT: 08/02/2001
BENCH:
DR. A.S. ANAND CJ & R.C. LAHOTI
JUDGMENT:
JUDGMENT
2001 (1) SCR 959
The Judgment of the Court was delivered by
R.C. LAHOTI, J. This special leave petition under Article 136 of the
Constitution of India filed by a judicial officer, seeks expunging of
remarks detrimental to her, contained in the judgment of the High court
disposing of a criminal miscellaneous petition under Section 482 of the
code of Criminal Procedure, 1973 filed by the accused persons seeking
quashing of certain criminal proceedings.
Leave granted.
The backdrop of events has an unusual setting. The appellant is a serving
judicial officer posted as Metropolitan Magistrate. The courtroom wherein
the appellant held her court was not properly furnished and not only her
courtroom but other court-rooms located in the same building also seriously
lacked in infrastructural facilities and needed additions, alterations and
improvements. The District judge was persuading the state officials to do
the needful. So far as the appellant is concerned her courtroom needed a
dais to be constructed. That was done during summer vacation when the
appellant was away from the headquarters. On her return she found a mess of
the work having been done by the PWD officials. According to the appellant
the dais was made like a box. The presiding judge if seated on the dais
would touch the ceiling fan on the head and while looking down from the
dais, would not be able to see the arguing counsel, the parties appearing
and the staff seated in the court room. Attention of the District &
Sessions judge was invited who communicated with the officials concerned
but they were non-responsive. As the work done by the PWD personnel caused
an obstruction in the functioning of the court, and yet they would not
listen to reason, the appellant initiated proceedings calling upon certain
officials to show cause why proceedings under the Contempt of Courts Act,
1971 be not drawn up and a reference be not made to the High Court During
the pendency of these proceedings the PWD people chopped off a wooden piece
forming part of the dais and removed the same. On these facts coming to the
knowledge of the appellant she took cognisance of offences punishable under
sections 380, 201, 120-B of the Indian Penal Code and issued process
requiring presence of the accused persons before her. The persons proceeded
against preferred a petition Under section 482 of the Code of Criminal
Procedure read with Article 227 of the Constitution seeking quashing of
both the proceedings-one under the Contempt of Courts Act and the other in
the criminal case wherein cognisance for substantive offences under the IPC
was taken. During the pendency of the petition before the High Court, the
learned Metropolitan Magistrate having felt satisfied by the response of
the PWD officials, directed the notice under the Contempt of Courts Act to
be discharged and to that extent the petition filed before the High Court
was rendered infructuous. The hearing before the High Court then remained
confined to the question of quashing the cognisance of the offences under
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Sections 380, 201, 120-B IPC taken by the learned Metropolitan Magistrate.
After hearing the leaned counsel for the accused persons and the learned
counsel for the State, the High court has directed the proceedings to be
quashed. The operative part of the order of the High Court reads as under:-
"Thus prima facie, no offence either under sections 380 or 201 or 120B IPC
is made out against the petitioners. [The manner in which the cognisance of
the said offences came to be taken clearly suggest that the Magistrate
wanted to rope in the petitioners in a criminal case in order to pressurise
them to have the dais in court room no. 8 and other civil work as noted in
the petition carried out as desired by her] which matter could well be
token up by the Judge Incharge................../
District & Sessions Judge with the appropriate authority in CPWD on
administrative side. In passing the impugned order dated 1st July, 1999 the
Magistrate had thus exceeded the jurisdiction [defying all judicial norms].
This order [being gross abuse of process of court], therefore, deserves to
be set aside under section 482 Cr.P.C. Having arrived at this conclusion it
is not necessary to examine the plea raised on petitioner’s behalf
regarding the applicability of section 197 Cr.P.C.
Consequently, the petition is allowed and the criminal proceedings under
Sections 380/201/120B IPC initiated against the petitioners by the
Magistrate, are hereby quashed." With the above said order the controversy
so far as it related to the persons proceeded against, that is, the PWD
officials has come to an end. But, the appellant is aggrieved by the
observations made by the High Court in its judicial order. The observations
grieving the appellant have been quoted with emphasis and placed into
brackets by us.
During the courts of hearing we were informed by Shri Kapil Sibal, the
learned senior counsel for the appellant that the observations so made in
the judicial order of the High Court have found their way into the annual
confidential records of the appellant and they are sure to affect her
career ahead.
Several eases 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 filing appeals to this Court or petitions before the High
Court 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 to his views
and constructing his judgment or order. It should be ho 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
a judge.
The primary purpose of pronouncing a verdict is to dispose of the matter in
controversy between the parties before it. A judge is not expected to drift
away from pronouncing upon the controversy, to sitting in judgment over the
conduct of the judicial and quasi-judicial authorities whose decisions or
orders are put in issue before him, and indulge into criticising and
commenting thereon unless the conduct of an authority or subordinate
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functionary or anyone else than the parties comes of necessity under review
and expression of opinion thereon going to the extent of commenting or
criticising becomes necessary as a part of reasoning requisite for arriving
at a conclusion necessary for deciding the main controversy or it becomes
necessary to have animadverted thereon for the purpose of arriving at a
decision on an issue involved in the litigation. This applies with added
force when the superior court is hearing an appeal or revision against an
order of a subordinate judicial officer arid feels inclined to animadvert
on him. The wisdom of a superior judge itching for making observations on a
subordinate judge before ventilating into expression must pause for a
moment and read the counsel of Cardozo- "Write an opinion, and read it a
few years later when it is dissected in the briefs of counsel. You will
learn for the first time the limitations of the power of speech, or, if not
those of speech in general, at all events your own. All sorts of gaps and
obstacles and impediments will obtrude themselves before your gaze, as
pitilessly manifest as the hazards on a golf course. Sometimes you will
know that the fault is truly yours, in which event you can only smite your
breast and pray for deliverance thereafter." (Essays on Jurisprudence,
Columbia Law Review, 1963 at p.315).
The courts do have power to express opinion, make observations and even
offer criticism on the conduct of anyone coming within their gaze of
judicial review but the question is one of impelling need, justification
and propriety. The following observation by Sulaiman J. in Panchanan
Banerji v. Upendra Nath Bhattacharji, AIR [1927] All 193 was cited with
approval before this Court in Niranjan Patnaik v. Sashibhusan Kar and Anr.,
[1986] 2 SCR 569.
"The High Court, as the Supreme Court Of revision, must be deemed to have
power to see that Courts below do not unjustly and without any lawful
excuse take away the character of a party or of a witness or of a counsel
before it."
This Court went on to add:-
"It is, therefore, settled law that harsh or disparaging remarks are not to
be made against persons and authorities whose conduct comes into
consideration before Court of law unless it is really necessary for the
decision of the case, as an integral part thereof to animadvert on that
conduct. We hold that the adverse remarks made against the appellant were
neither justified nor called for.
Having regard to the limited controversy in the appeal to the High-Court
and the hearsay nature of evidence of the appellant it was not at all
necessary for the Appellate Judge to have animadverted on the conduct of
the appellant for the purpose of allowing the appeal of the first
respondent. Even assuming that a serious evaluation of the evidence of the
appellant was really called for in the appeal the remarks of the learned
Appellate Judge should be in conformity with the settled practice of Courts
to observe sobriety, moderation and reserve. We need only remind that the
higher the forum and the greater the powers, the greater the need for
restrain and the more mellowed the reproach should be."
A subordinate judge faced with disparaging and undeserving remarks made by
a Court of superior jurisdiction is not without any remedy. He may approach
the High Court invoking its inherent jurisdiction seeking expunction of
objectionable remarks Which jurisdiction vests in the High Court by virtue
of its being a court of record and possessing inherent powers as also the
power of superintendence. This view is settled by the law laid down in Dr.
Raghubir Saran v. State of Bihar and Anr., [1964] 2 SCR 330. However, if a
similar relief is sought for against remarks or observations contained in
judgment or order of High Court the aggrieved judicial officer can, in
exceptional cases, approach this court also invoking its jurisdiction under
Article 136 and/ or 142 of the Constitution. With the law laid down by this
Court in Dr. Raghubir Saran (supra) and the State of Uttar Pradesh v.
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Mohammad Naim, [1964] 2 SCR 363 it is well-settled that the power to
expunge remarks exists for redressing a kind of grievance for which the law
does not provide any other remedy in express terms though it is an
extraordinary power. Any passage from an order or judgment may be expunged
or directed to be expunged subject to satisfying the following tests :- (i)
that the passage complained of is wholly irrelevant and unjustifiable; (ii)
that its retention on the records will cause serious harm to the persons to
whom it refers; (iii) that its expunction will not affect the reasons for
the judgment or order.
Though the power to make remarks or observations is there but on being
questioned, the exercise of power must withstand judicial scrutiny on the
touchstone of following tests :- (a) whether the party whose conduct is in
question is before the Court or has an opportunity of explaining or
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. The overall test is that the criticism or observation must be
judicial in nature and should not formally depart from sobriety, moderation
and reserve [see Mohmmad Naim (supra)].
It was so said by a Special Bench of three-Judges presided over by Tek
Chand, J. in Philip William Ravanshawe Hardless v. Gladys Iqabel Hardless
and Ors., AIR [1940] Lahore 82 :
’’A passage which is not necessary to the conclusion of the Judge nor even
necessary to his arguments and is likely to militate seriously against
party’s earning a living in his profession should be expunged from the
judgment ."
In A.M. Mathur v. Pramod Kumar Gupta, [1990] 2 SCC 533 this Court sounded a
note of caution emphasising a general principle of highest importance to
the proper-administration of justice that derogatory remarks ought not to
be make 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 and said :-
"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, this humility of function should be constant theme of
our judges. This quality in decision making is as much necessary for judges
to command respect as to protect the independence of the judiciary.
Judicial restrain in this regard might better be called judicial respect,
that is, respect by the judiciary. Respect to those who come before the
court as well to other co-ordinate branches of the State, the executive,
and legislature. There must be mutual respect. When these qualities fail of
when litigants and public believe that the judge has failed in these
qualities, it will be neither good for the judge nor for the judicial
process."
In the case at hand we are concerned with the observations made by the High
Court against a judicial officer who is a serving member of subordinate
judiciary. Under the constitutional scheme control over the district courts
and courts subordinate thereto has been vested in the High Courts. The
control so vested is administrative, judicial and disciplinary. The role of
High Court is also of a friend, philosopher and guide of judiciary
subordinate to it. The strength of power is not displayed solely in
cracking a whip on errors, mistakes or failures; the power should be so
wielded as to have propensity to prevent and to ensure exclusion of
repetition if committed once innocently or unwittingly, "Pardon the error
but not its repetition". The power to control is not to be exercised solely
by welding a teacher’s cane; the members of subordinate judiciary look up
at the High Court for the power to control to be exercised with parent-like
care and affection. The exercise of statutory jurisdiction, appellate or
revisional and the exercise of constitutional power to control and
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supervise the functioning of the district courts and courts subordinate
thereto empowers the High Court to formulate an opinion and place it on
record not only on the judicial working but also on the conduct of the
judicial officers. The existence of power in higher echelons of judiciary
to make observations even extending to criticism incorporated in judicial
orders cannot be denied, however, the High Courts have to remember that
criticisms had observations touching a subordinate judicial officer
incorporated in judicial pronouncements have their own mischievous
infirmities. Firstly the judicial officer is condemned unheard which is
violative of principles of natural justice. A member of subordinate
judiciary himself dispensing justice should not be denied this minimal
natural justice so as to shield against being condemned unheard. Secondly,
the harm caused by such criticism or observation may be incapable of being
undone. Such criticism of the judicial officer contained in a judgment,
reportable or not, is a pronouncement in open and therefore becomes public.
The same judge who found himself persuaded, sitting on judicial side, to
make observations guided by the facts of a single case against a
subordinate judge may, sitting on administrative side and apprised of
overall meritorious performance of the subordinate judge, may irretrievably
regret his having made those observations on judicial side the harming
effect whereof even he himself cannot remove on administrative side.
Thirdly, human nature being what it is, such criticism of a judicial
officer Contained in the judgment of a higher court gives the litigating
party a sense of victory not only over his opponent but also over the judge
who had decided the case against him. This is subversive of judicial
authority of the deciding judge. Fourthly, seeking expunging of the
observations by a judicial officer by filing an appeal or petition of his
own reduces him to the status of a litigant arrayed as a party before the
High Court or Supreme Court-a situation not very happy from the point of
view of the functioning of the judicial system. May be for the purpose of
pleading his cause he has to take the assistance of a legal practitioner
and such legal practitioner may be one practising before him. Look at the
embarrassment involved. And last but not the leart, the possibility of a
single or casual aberration of an otherwise honest, upright and righteous
judge being caught unawares in the net of adverse observations cannot be
ruled out. Such an incident would have a seriously demoralising effect not
only on him but also on his colleagues. If all this is avoidable why it
should not be avoided? We must not be understood as meaning that any
conduct of a subordinate judicial officer unbecoming of him and demanding a
rebuff should be simply overlooked, But there is an alternate safer and
advisable course available to choose. 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 oft 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.
The remarks made in a judicial order of the High Court against a member of
Subordinate judiciary even if expunged would not completely restitute and
restore the harmed judge from the loss of dignity and honour suffered by
him. In ’JUDGES’ by David Pannick (Oxford University Press Publication,
1987) a wholesome practise finds a mention suggesting art appropriate
course to be followed in such situations :
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"Lord Hailsham explained that in a number of cases, although I seldom told
the complainant that I had done so, I showed the complaint to the judge
concerned. I thought it good for him both to see what was being said about
him from the other side of the court, and how perhaps a lapse of manners or
a momentary impatience could undermine confidence in his decision."
Though the learned author observes that such a private discussion,
uncommunicated to the complainant, would be unlikely to remove his sense of
grievance, the resolution is to be found in the same book elsewhere in the
following passage (though in a different context) :-
"Lord bridge gave a similar explanation in 1984; ’If one Judge in a
thousand acts dishonestly within his jurisdiction to the determinant of a
party before him, it is less harmful to the health of society to leave that
party without a remedy than that nine hundred and ninety-nine honest judges
should be harassed by various litigation alleging malice in the exercise of
their proper jurisdiction’.
Reverting back to the case at hand, may be that the learned Metropolitan
Magistrate in initiating contempt proceedings and taking cognisance of
substantive offences under the Indian Penal Code against the officials of
Public Works Department was not properly advised or was at the worst
indulging into a misadventure and therefore to the extent of quashing of
the proceedings by the High Court we may not find fault and certainly no
one has come up to this Court complaining against the merits of that part
of the order of the High Court by which criminal proceedings have been
quashed. Nevertheless, the i|l advised move or misadventure of the learned
Metropolitan Magistrate was neither a misconduct nor an outcome of malice.
Though she acted in a way which did not meet the approval of the High
Court, the facts and the circumstances of the case point out that her only
desire was to make her court room functional. Probably she fell aggrieved,
rather agitated, by the apathy of the Public Works Department people who
were taking the things too easy unmindful of the practical difficulties
faced by the presiding judge occupying the courtroom and discharging
judicial functions. The fact remains that the observations were made by the
High Court without affording the Metropolitan Magistrate and opportunity of
explaining or defending herself. The remarks were not necessary for the
decision of the case by the High Court as an integral part thereof.
Animadverting on the conduct of the learned Metropolitan Magistrate was not
a necessity for the exercise by the High Court of inherent power or the
power of superintendence to quash the proceedings initiated by the learned
Metropolitan Magistrate, Expunging of the remarks, as we propose to do,
will not affect the reasons for the judgment of the High Court. On the
other hand, the remarks have a potential to prejudice the career of the
appellant.
We must peace on record the very its stand taken by Shri Sanjay Kaul, the
learned senior counsel for the High Court, who told us that he was
instructed by the High Court to appear in deference to the notice issued by
this Court and to offer such assistance as might be needed and any verdict
which this Court may deliver shall be acceptable to it; the High Court
neither opposes nor supports the appellant’s prayer; its stand is neutral.
For the foregoing reasons the petition is allowed. The following portions
occurring in the judgment of the High Court are directed to be expunged:-
[The manner in which the cognisance of the said offences came to be taken
clearly suggest that the Magistrate wanted to rope in the petitioners in a
criminal case in order to pressurise them to have the dais in court room
no. 8 and other civil work as noted in the petition carried out as desired
by her]
[defying alt judicial norms]
[being gross abuse of process of court]
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The petition stands disposed of accordingly. Needless to say the above-said
observations having been directed to be expunged if the said observations
have percolated into the annual confidential rolls of the learned
Metropolitan Magistrate the same shall also stand expunged for the
foundation thereof has itself ceased to exist.