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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.