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Sunday, February 17, 2013

severe strictures It is settled legal position that no adverse remark can be made against any judicial officer without giving an opportunity to explain the conduct.- “This conduct of the Chief Judicial Magistrate is deplorable and wholly mala fide and illegal.” “Vexatiously illegal.” “… and has done unpardonable injustice to the injured and the informant. His lack of sensitivity and utter callous attitude has left the accused of murderous assault to go scot-free to this day”. Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure and they do not have the facilities which are available in the higher courts, we are of the view that the remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put-forth his reasonings. We, once again, reiterate that harsh or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into consideration before courts of law unless it is really for the decision of the case as an integral part thereof. Under these circumstances, the adverse remarks passed in the impugned judgment and the final orders dated 01.03.2012 and 23.04.2012 insofar as the appellant is concerned are set aside. Since these appeals are confined only for expunging the strictures, the same are allowed as pointed above. No costs.


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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 1340-1341              OF 2013
           (Arising out of S.L.P. (C) Nos. 18859-18860 of 2012)
Awani Kumar Upadhyay             .... Appellant(s)
Versus
The Hon’ble High Court of Judicature at
Allahabad and Ors.      ....
Respondent(s)
J U D G M E N T
P. Sathasivam, J.
1) Leave granted.
2) These appeals arise from the judgment and final
orders dated 01.03.2012 and 23.04.2012 passed by the
High Court of Judicature at Allahabad in Second Appeal
No.  1444  of  2000  and  Civil  Misc.  Modification
Application No. 122702 of 2012 in Second Appeal No.
1444  of  2000  respectively,  whereby  the  High  Court,
while  allowing  the  second  appeal,  passed  severe
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strictures against the appellant-herein  and forwarded a
copy of its judgment to Hon’ble Chief Justice of the High
Court to consider as to whether disciplinary proceedings
are warranted against him?
3) The case of the appellant, in brief, is as under:
a) The appellant, who is a Member of the U.P. Higher
Judicial  Service,  is  posted  as  Additional  District  and
Sessions Judge, Moradabad and, according to him, he is
having unblemished service career and has successfully
completed 30 years of service. 
b) The High Court, while allowing the Second Appeal
No. 1444 of 2000 titled U.P. Avas Evam Vikas Parishad,
Lucknow  and  Another vs.  Lajja  Ram,  passed  severe
strictures against the appellant herein in the judgment
which, according to him, are ultimately going to affect
permanently not only his reputation but also his entire
service career.
c) It is the claim of the appellant that in the Second
Appeal  No.  1444  of  2000,  he  has  not  rendered  any
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judgment as trial Court Judge or as the first Appellate
Court Judge.  According to him, a suit bearing No. 418 of
1997 was filed by Shri Lajja Ram against the U.P. Avas
Evam Vikas Parishad, Lucknow and another and the said
suit  was  decided  by  one  learned  Civil  Judge,  Senior
Division, Ghaziabad presided over by  Shri Chaturbhuj
by a judgment and order dated 02.05.1997.  Aggrieved
by the said judgment, a first appeal was filed being First
Appeal  No.  105  of  1997  in  the  Court  of   Shri  A.K.
Aggarwal,  second  Additional  Dist.  &  Sessions  Judge,
Ghaziabad.   The  first  Appellate  Court  framed  12
additional  issues  and  on  those  additional  issues,  the
matter was remanded to the Court of the appellant as
he  was  working  as  Civil  Judge,  Senior  Division,
Ghaziabad. Thereafter, in compliance with the order of
the first Appellate Court, after recording the evidence of
the parties, the appellant recorded the evidence of the
parties and gave his findings on 31.05.1999.
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d) It is the case of the appellant that in the impugned
judgment  and  order,  the  High  Court  has  neither
furnished any independent finding on the issues which
were determined by the appellant herein nor anything
about  his  ultimate  decision.   The  present  appeal  is
confined only to the portion wherein the High Court has
made  certain  strictures.   The  appellant  has  also
asserted that the High Court has not considered that
the  appellant  has  not  rendered  any  decision  as  trial
Judge or as the Judge of the first Appellate Court.  On
the  direction  by  the  first  Appellate  Court,  only  12
additional  issues  were  adjudicated  by  the  appellant.
Inasmuch  as  “severe  strictures”,  if  allowed  to  stand,
would affect his entire future prospects of service, he
approached this Court by filing this appeal by way of
special leave.
e) While answering the substantial questions of law,
namely, 3, 4, 5 and 6, the High Court decided the same
in  favour  of  the  appellants  therein  and  against  the
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respondents.  Ultimately, both the second appeals were
allowed with exemplary cost of Rs. 5 Lakhs in Second
Appeal  No.  1444  of  2000  and  Rs.  1  Lakh  in  Second
Appeal No. 1445 of 2000.  The High Court ultimately set
aside  the  decrees  passed  by  the  courts  below  and
dismissed both the suits.  The High Court also directed
that a FIR be lodged immediately against the plaintiffs
for  malicious  prosecution  and  manipulation  in  the
official records.  After issuing such directions the High
Court  passed  the  following  order,  with  which  we  are
concerned in these appeals:
“Severe stricture is passed against the Judge of the
trial  Court  as  well  as  of  lower  appellate  Court  for
passing extremely illegal and unjust judgments and
decrees.  A copy of this judgment shall be placed in
their service records and be also sent to Hon’ble the
Chief  Justice  to  consider  as  to  whether  disciplinary
proceedings are warranted against them.”  
f) On  coming  to  know  of  the  strictures  and  the
ultimate direction of the High Court, the appellant filed
a  Civil  Misc.  Modification  Application  No.  122702  of
2012 in Second Appeal No. 1444 of 2000 for expunging
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the remarks made in the judgment dated 01.03.2012.
The High Court, after hearing the counsel for the judicial
officer without modifying the judgment, observed  that
“I did not intend to make any suggestion for initiating
disciplinary  proceedings  against  the  Judge  who  had
decided  the  remitted  issues  only”, and  by  saying  so
disposed of the said application, however, permitted the
appellant to make representation on the administrative
side of the High Court.  Not satisfied with the same, the
appellant  has  filed  the  above  appeal  for  a  limited
purpose of expunging those adverse remarks.
4) Heard Mr. Harshvir Pratap Sharma, learned counsel
for the appellant and Mr Ravi Prakash Mehrotra, learned
counsel  for  the  Registrar  General,  High  Court  of
Allahabad.   In the present  appeals, the other  parties
have been shown only as proforma respondents.
5) The questions which arise for consideration are:
(a) Whether in the facts and circumstances of the
case, the High Court was justified in making
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severe  strictures  and  directions  against  the
appellant in its judgment dated 01.03.2012?
(b) Whether the direction to send the impugned
judgment to Hon’ble Chief Justice of the High
Court  with  a  request  to  consider  whether
disciplinary proceedings are warranted against
the appellant herein was justified?
(c) Whether the High Court is justified in disposing
of  the  application  for  modification  without
expunging  the  offending  portion  which  was
made  without  affording  opportunity  to  the
appellant?
6)  It is settled legal position that no adverse remark can
be  made  against  any  judicial  officer  without  giving  an
opportunity to explain the conduct.
It is useful to refer a
decision of this Court in Parkash Singh Teji vs. Northern
India  Goods  Transport  Company  Private  Limited  and
Another, (2009) 12 SCC 577 which is identical to the case
on hand.  In the above decision, the directions of the High
Court in its order dated 06.07.2006 reads as under:-
“Before parting, we wish to make it clear that the learned
Judge  who  passed  the  impugned  judgment  and  decree
need be careful in future, rather than adopting a hasty,
slipshod and perfunctory approach as is manifest from the
judgment delivered by him in this case.  We further direct
that  a  copy  of  this  order  shall  be  placed  on  the
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personal/service record of the officer, while another copy
be  placed  before  the  Hon’ble  Inspecting  Judge  of  the
officer for His Lordship’s perusal.”
According to the appellant, by making such remarks and that
too behind his back, are not warranted.  Here again, after
adverting to the earlier decisions and principles enunciated
therein, this Court expunged the offending remarks made
against the appellant and allowed the appeal filed by him.
7) Apart  from  the  above  decision,  in  an  identical
circumstance,  this  Court  has  expunged  adverse  remarks
made against a judicial officer in Amar Pal Singh vs. State
of  Uttar  Pradesh  and  Another, (2012) 6 SCC 491.  The
appellant therein, a judicial officer, being aggrieved by the
comments and observations passed by the learned Single
Judge of the High Court of Judicature of Allahabad in Sunil
Solanki vs.  State  of  U.P (Criminal Revision No. 1541 of
2007,  order  dated  31.05.2007)  has  preferred  an  appeal
before this Court.  In this case, one Sunil Solanki had filed an
application  under  Section  156(3)  of the  Code  of Criminal
Procedure,  1973  before  the  CJM,  Bulandshahar  with  the
allegation that on 11.02.2007 at  9.30 p.m. when  he was
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standing outside the front door of his house along with some
others, a marriage procession passed from in front of the
door of his house and  at  that  juncture,  one  Mauzzim  Ali
accosted him and eventually fired at him from his countrymade pistol which caused injuries in the abdomen area of
Shafeeque, one of his friends. However, he escaped unhurt.
Because of the said occurrence, Sunil Solanki endeavoured
hard to get the FIR registered at the police station concerned
but  the  entire  effort  became  an  exercise  in  futility  as  a
consequence of which he was compelled to knock at the
doors  of  the  learned  CJM  by  filing  an  application  under
Section 156(3) of the Code for issuance of a direction to the
police to register an FIR and investigate the matter.  While
dealing with the application, the Chief Judicial Magistrate, the
appellant  in  that  appeal,  ascribed  certain  reasons  and
dismissed the same.            
8) Being  dissatisfied,  the  appellant  therein  preferred  a
revision before the High Court and the learned Single Judge,
taking note of the allegations made in the application, found
that it was a fit case where the learned Magistrate should
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have directed the registration of FIR and investigation into
the alleged offences.  While recording such a conclusion, the
learned single Judge has made certain observations which
are reproduced below:
“This conduct of the Chief Judicial Magistrate is deplorable
and wholly mala fide and illegal.”  
Thereafter, the learned single Judge treated the order to be
wholly hypothetical and commented it was:
“Vexatiously illegal.”
After stating so the learned single Judge further stated that
the Chief Judicial Magistrate has committed a blatant error of
law.  Thereafter, he further commented:
“… and has done unpardonable injustice to the injured and
the informant.   His lack of sensitivity  and utter  callous
attitude has left the accused of murderous assault to go
scot-free to this day”.
9) After making the aforesaid observations, the learned
Single Judge set aside the order and remitted the matter to
the Chief Judicial Magistrate to decide the application afresh
in accordance with law.  Thereafter, he directed as follows:
“Let a copy of this order be sent to the Administrative
Judge, Bulandshahar to take appropriate action against the
CJM concerned as he deems fit.”
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10) Aggrieved by the said direction, the appellant therein
approached this Court by way of a special leave petition to
delete  the  aforesaid  comments,  observations  and  the
ultimate direction.
11) After referring all the various earlier decisions of this
Court on this point expunged the remarks and set aside the
said observation/comments and the direction made against
the judicial officer.  This Court also directed that if the said
remarks have been entered into the annual confidential roll
of the judicial officer, the same shall stand expunged and
also marked a copy of the judgment to the Registrar General
of the High Court, Allahabad to be placed on the personal file
of the judicial officer concerned.
12) It  is  made  clear  that  we  are  not  undermining  the
ultimate decision of the High Court on merits.  
However, we
are constrained to observe that the higher courts every day
come across orders of the lower courts which are not justified
either in law or in fact and modify them or set them aside.
Our legal system acknowledges the fallibility of the Judges,
hence it provides appeals and revisions. 
 Inasmuch as the
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lower  judicial  officers  mostly  work  under  a  charged 
atmosphere and are constantly under psychological pressure
and they do not have the facilities which are available in the
higher  courts,  we  are  of  the  view  that  the
remarks/observations  and  strictures  are  to  be  avoided
particularly if the  officer has no occasion to put-forth his
reasonings.  Further, if the passage complained of is wholly
irrelevant and unjustifiable and its retention on the records
will cause serious harm to the persons to whom it refers and
its expunction will not affect the reasons for the judgment or
order,  request  for  expunging  those  remarks  are  to  be
allowed.  We, once again, reiterate that harsh or disparaging
remarks  are not to be made  against judicial officers and
authorities whose conduct comes into consideration before
courts of law unless it is really for the decision of the case as
an integral part thereof.  
13) We hold that the adverse remarks made against the
appellant were neither justified nor called for.  The perusal of
the impugned judgment would show that the word “severe
strictures” is mentioned whereas no logical reasoning has
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been given as to what is the fault of the appellant and the
High Court has not adduced any finding as to why it has
disagreed  with  the  reasoning  given  by  the  appellant
particularly when the appellant asserted that neither he has
rendered any decision as trial Court Judge nor as the first
Appellate Court Judge except deciding 12 additional issues
on the directions issued by his predecessor.  The strictures
passed against the appellant are neither warranted nor is in
conformity with the settled law as propounded by this Court.
14) Under  these  circumstances,  the  adverse  remarks
passed in the impugned judgment and the final orders dated
01.03.2012  and  23.04.2012  insofar  as  the  appellant  is
concerned are set aside.  Since these appeals are confined
only for expunging the strictures, the same are allowed as
pointed above.  No costs.  
               
...…………………………………J.
(P. SATHASIVAM)
...…………………………………J.
       (JAGDISH SINGH KHEHAR)
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NEW DELHI;
FEBRUARY 13, 2013.
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