IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 651 OF 2009
Amar Pal Singh .....……..Appellant
Versus
State of U. P. & Anr. ………Respondents
J U D G M E N T
DIPAK MISRA, J.
The present appeal frescoes a picture and exposits a canvas how,
despite numerous pronouncements of this Court, while dealing with the
defensibility of an order passed by a Judge of subordinate court when it
is under assail before the superior Court in appeal or revision, the
imperative necessity of use of temperate and sober language warranting
total restraint regard being had to the fact that a judicial officer is
undefended and further, more importantly, such unwarranted observations,
instead of enhancing the respect for the judiciary, creates a concavity in
the hierarchical system and brings the judiciary downhill, has been totally
ostracised. Further, the trend seems to be persistent like an incurable
cancerous cell which explodes out at the slightest imbalance.
2. The appellant, a judicial officer, being aggrieved by the comments
and observations passed by the learned Single Judge of High Court of
Judicature at Allahabad in Criminal Revision No. 1541 of 2007 vide order
dated 31.05.2007, has preferred the present appeal. The brief resume of
facts are that one Sunil Solanki had filed an application under Section 156
(3) of the Code of Criminal Procedure (for short ‘the Code’) before the
Chief Judicial Magistrate, Bulandshahar with the allegation that on
11.02.2007 at 09.30 p.m. when he was standing outside the door of his house
along with some others, a marriage procession passed through the front door
of his house and at that juncture, one Mauzzim Ali accosted him and
eventually fired at him from his country made pistol which caused injuries
on the abdomen area of Shafeeque, one of his friends. However, as good
fortune would have it, said Shafeeque escaped unhurt. Because of the said
occurrence, Sunil Solanki endeavoured hard to get the FIR registered at the
concerned police station 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 Chief Judicial Magistrate by filing an application under
Section 156 (3) of the Code for issue of a direction to the police to
register an FIR and investigate the matter. While dealing with the
application, the learned Chief Judicial Magistrate, the appellant herein,
ascribed certain reasons and dismissed the same.
3. Being dissatisfied, said Sunil Solanki 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 have directed the registration of FIR and investigation
into the alleged offences. While recording such a conclusion, the learned
Judge has made certain observations which are reproduced below:-
“This conduct of chief Judicial Magistrate is deplorable and
wholly malafide and illegal”
Thereafter the learned Judge treated the order to be wholly hypothetical
and commented it was :-
“vexatiously illegal”
After so stating the learned Single Judge further stated that Chief
Judicial Magistrate has committed a blatant error of law. Thereafter the
passage runs thus:-
“.......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.”
After making the aforesaid observations, he set aside the order and
remitted the matter to the Chief Judicial Magistrate to decide the
application afresh in accordance with law as has been spelt out by the High
Court of Allahabad in the case of Masuman v. State of U.P. and Another[1].
Thereafter, he directed as follows-
“Let a copy of this order be sent to the Administrative Judge,
Bulandshahar to take appropriate action against the concerned
C.J.M. as he deem fit.”
4. The prayer in the Special Leave Petition is to delete the aforesaid
comments, observations and the ultimate direction.
5. We have heard Mr. Ratnakar Dash, learned senior counsel for the
appellant and the learned counsel for the State.
6. It is submitted by the learned senior counsel appearing on behalf of
the appellant that the aforesaid observations and the consequential
direction were totally unwarranted and indubitably affect the self-esteem
and career of a member of the subordinate judiciary and therefore deserve
to be expunged.
7. The learned counsel for the State has fairly stated that a judicial
officer enjoys a status in the eyes of the public at large and his
reputation stabilises the inherent faith of a litigant in the system and
establishes authenticity and hence, the remarks made by the learned Single
Judge should not be allowed to stand.
8. At the very outset, we make it clear that we are neither concerned
with the justifiability of the order passed by the Chief Judicial
Magistrate nor are we required to dwell upon the legal pregnability of the
order passed by the learned Single Judge as far as it pertains to
dislodging of the order of the learned Magistrate. We are only obliged to
address to the issue whether the aforesaid remarks and the directions have
been made in consonance with the principles that have been laid down by the
various pronouncements of this Court and is in accord with judicial decorum
and propriety.
9. In Ishwari Prasad Mishra v. Mohammad Isa[2], the High Court, while
dealing with the judgment of the trial court in an appeal before it, had
passed severe strictures against the trial court at several places and, in
substance, had suggested that the decision of the trial court was not only
perverse but was also based on extraneous considerations. Dealing with the
said kind of delineation and the comments, Gajendragadkar, J (as His
Lordship then was) authoring the judgment held that the High Court was not
justified in passing the strictures against the trial Judge. The Bench
observed that judicial experience shows that in adjudicating upon the rival
claims brought before the courts, it is not always easy to decide where the
truth lies. Evidence is adduced by the respective parties in support of
their conflicting contentions and circumstances are similarly pressed into
service. In such a case, it is, no doubt, the duty of the Judge to consider
the evidence objectively and dispassionately, examine it in the light of
probabilities and decide which way the truth lies. The impression formed by
the Judge about the character of the evidence will ultimately determine the
conclusion which he reaches. But it would be unsafe to overlook the fact
that all judicial minds may not react in the same way to the said evidence
and it is not unusual that evidence which appears to be respectable and
trustworthy to one Judge may not appear to be respectable and trustworthy
to another Judge. That explains why in some cases courts of appeal reverse
conclusions of facts recorded by the trial Court on its appreciation of
oral evidence. The knowledge that another view is possible on the evidence
adduced in a case acts as a sobering factor and leads to the use of
temperate language in recording judicial conclusions. Judicial approach in
such cases would always be based on the consciousness that one may make a
mistake; that is why the use of unduly strong words in expressing
conclusions, or the adoption of unduly strong intemperate, or extravagant
criticism against the contrary view, which are often founded on a sense of
infallibility should always be avoided. It is worth noting that emphasis
was laid on sobriety, judicial poise and balance.
10. In Alok Kumar Roy v. Dr. S. N. Sarma and Anr.,[3] the Constitution
Bench was dealing the issue whether a Judge of High Court can pass order in
that capacity while he was working as Head of the Commission of enquiry and
whether he can entertain writ petition and pass interim order while being
at a place which was not seat of High Court. The learned Chief Justice of
High Court while dealing with the matter commented on the Judge that he had
passed the order in “unholy haste and hurry”. That apart certain
observations were made. While not appreciating the said remarks in the
judgment against a colleague, their Lordships opined that such observations
even about the Judges of subordinate courts with the clearest evidence of
impropriety are uncalled for in a judgment. The Constitution Bench further
proceeded to state that it is necessary to emphasise 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 fallible. Even when there is
jurisdiction for criticism, the language should be dignified and
restrained.
11. In Ishwar Chand Jain v High Court of Punjab and Haryana and Anr.[4] ,
it has been observed that while exercising control over subordinate
judiciary under Article 235 of the Constitution, the High Court is under a
Constitutional obligation to guide and protect subordinate judicial
officers.
12. In K. P. Tiwari v. State of Madhya Pradesh[5], the High Court while
reversing the order passed by the lower Court had made certain remarks
about the interestedness and the motive of the lower Court in passing the
impugned order. In that context this Court observed that one of the
functions of the higher Court is either to modify or ser aside erroneous
orders passed by the lower Court. It has been further observed that a
judge tries to discharge his duties to the best of his capacity. While
doing so, sometimes, he is likely to err. “It is well said that a judge
who has not committed an error is yet to be born”, and that applies to
judges at all levels from the lowest to the highest. Sometimes, the
difference in views of the higher and the lower courts is purely a result
of a difference in approach and perception. On such occasions, the lower
courts are not necessarily wrong and the higher courts always right. It
has also to be remembered that the lower judicial officers mostly work
under a charged atmosphere and are constantly under a psychological
pressure with all the contestants and their lawyers almost breathing down
their necks – more correctly upto their nostrils. They do not have the
benefit of a detached atmosphere of the higher courts to think coolly and
decide patiently. Every error, however gross it may look, should not,
therefore, be attributed to improper motive. It is possible that a
particular judicial officer may be consistently passing orders creating a
suspicion of judicial conduct which is not wholly or even partly
attributable to innocent functioning. Even in such cases, the proper course
for the higher court to adopt is to make note of his conduct in the
confidential record of his work and to use it on proper occasions. The
judges in the higher courts have also a duty to ensure judicial discipline
and respect for the judiciary from all concerned. The respect for the
judiciary is not enhanced when judges at the lower level are criticised
intemperately and castigated publicly. No greater damage can be done to the
administration of justice and to the confidence of the people in the
judiciary than when the judges of the higher courts publicly express lack
of faith in the subordinate judges for one reason or the other. It must be
remembered that the officers against whom such strictures are publicly
passed, stand condemned for ever in the eyes of their subordinates and of
the members of the public. No better device can be found to destroy the
judiciary from within. The judges must, therefore, exercise self-restraint.
There are ways and ways of expressing disapproval of the orders of the
subordinate courts but attributing motives to them is certainly not one of
them as that is the surest way to take the judiciary downhill.
13. In Kasi Nath Roy v. State of Bihar[6] it has been ruled that in our
hierarchical judicial system the appellate and revisional Courts have been
set up with the pre-supposition that the lower Courts in some measure of
cases can go wrong in decision making, both on facts as also on law. The
superior Courts have been established to correct errors but the said
correction has to be done in a befitting manner maintaining the dignity of
the Court and independence of the judiciary. It is the obligation of the
higher Courts to convey the message in the judgment to the officers
concerned through a process of reasoning, essentially, persuasive,
reasonable, mellow but clear and result orienting but rarely a rebuke.
14. In Braj Kishore Thakur v. Union of India[7] this Court disapproved
the practice of passing strictures for orders against the subordinate
officers. In that context the two-Judge Bench observed thus:-
“No greater damage can be caused to the administration of
justice and to the confidence of people in judicial institutions
when judges of higher courts publicly express lack of faith in
the subordinate judges. It has been said, time and again, that
respect for judiciary is not in hands by using intemperate
language and by casting aspersions against lower judiciary.”
15. In A. M. Mathur v. Pramod Kumar Gupta[8] though in a different
context immense emphasis was laid on judicial restraint and discipline, it
is appropriate to reproduce a passage from the said decision:-
“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 a 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 restraint 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 coordinate
before the Court as well to other coordinate branches of the
State, the Executive and Legislature. There must be mutual
respect. When these qualities fail or 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.”
16. In Re; K, a Judicial officer,[9] a two-Judge Bench of this Court was
dealing about the adverse remarks contained in the judgment of the High
Court disposing of a Criminal Misc. Petition under Section 482 of the Code
and the expunction sought by a Metropolitan Magistrate was aggrieved of
such remark. After discussing that aggrieved judicial officer could
approach this Court for expunging the remarks the Bench opined under what
circumstances the exercise of power of making remarks can withstand
scrutiny. The Bench reiterated the view expressed in State of Uttar
Pradesh v. Mohammad Naim[10], wherein it was clearly stated that the
overall test is that the criticism or observation must be judicial in
nature and should not formally depart from sobriety, moderation and
reserve. Thereafter their Lordships referred to the conception of judicial
restraint, the controlling power, the expectations of subordinate judiciary
form the High Court, the statutory jurisdiction exercised by the High Court
and eventually opined that the High Courts have to remember that criticisms
and observations touching a subordinate judicial officer incorporated in
judicial pronouncements have their won mischievous infirmities.
Thereafter the Court proceeded to enumerate the infirmities. They read as
follows:-
“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 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.”
Thereafter the Bench laid down how the matter should be handled and should
be dealt with on the administrative side and ultimately expunged the
remarks.
17. In Samya Sett v. Shambu Sarkar and Anr.,[11] the court was dealing
with the case where a judicial officer was constrained to approach this
court for expunging the remarks made by Single Judge of the High Court of
Calcutta against him. Their Lordships referred to the decisions in
Mohammad Naim (supra), Alok Kumar Roy (supra), State of M. P. v. Nandlal
Jaiswal and Ors.[12] and certain other authorities and opined that the
stricture was totally inappropriate. In that context the court referred to
certain passages about the view expressed in other countries. We think it
apt to reproduce them.
“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
that 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’ – even those of us who wear the long
robe.”
18. In State of Bihar v. Nilmani Sahu and Anr.[13] a sitting judge of the
Patna High Court had approached this Court for expunction of the some
observations made by this Court in disposing of a special leave petition
arising out of a land acquisition proceeding. A Bench of this Court had
used the expression “We find that the view taken by the learned Singh
Judge, Justice P. K. Dev, with due respect, if we can say so, is most
atrocious”. The learned Single Judge had treated this to be stigmatic and
approached this Court and raised a contention that it was not necessary for
the decision. A two-Judge Bench of this Court after hearing the learned
counsel for the parties and considering the judgment of this Court opined
the expression used in the judgment was wholly inappropriate inasmuch as
when this Court uses an expression against the judgment of the High Court
it must be in keeping with dignity of the person concerned. Eventually the
said observations were deleted.
19. From the aforesaid enunciation of law it is quite clear that for more
than four decades this Court has been laying emphasis on the sacrosanct
duty of a Judge of a superior Court how to employ the language in judgment
so that a message to the officer concerned is conveyed. It has been
clearly spelt out that there has to be a process of reasoning while
unsettling the judgment and such reasoning are to be reasonably stated with
clarity and result orientation. A distinction has been lucidly stated
between a message and a rebuke. A Judge is required to maintain decorum
and sanctity which are inherent in judicial discipline and restraint. A
judge functioning at any level has dignity in the eyes of public and
credibility of the entire system is dependent on use of dignified language
and sustained restraint, moderation and sobriety. It is not to be
forgotten that independence of judiciary has an insegregable and
inseparable link with its credibility. Unwarranted comments on the
judicial officer creates a dent in the said credibility and consequently
leads to some kind of erosion and affects the conception of rule of law.
The sanctity of decision making process should not be confused with sitting
on a pulpit and delivering sermons which defy decorum because it is
obligatory on the part of the superior Courts to take recourse to
correctional measures. A reformative method can be taken recourse to on
the administrative side. It is condign to state it should be paramount in
the mind of a Judge of superior Court that a Judicial officer projects the
face of the judicial system and the independence of judiciary at the ground
reality level and derogatory remarks against a judicial officer would cause
immense harm to him individually (as the expunction of the remarks later on
may not completely resuscitate his reputation) but also affects the
credibility of the institution and corrodes the sacrosanctity of its
zealously cherished philosophy. A judge of a superior Court however
strongly he may feel about the unmerited and fallacious order passed by an
officer, but is required to maintain sobriety, calmness, dispassionate
reasoning and poised restraint. The concept of loco parentis has to take a
foremost place in the mind to keep at bay any uncalled for any unwarranted
remarks.
20. Every judge has to remind himself about the aforesaid principles and
religiously adhere to them. In this regard it would not be out of place
to sit in the time machine and dwell upon the sagacious saying of an
eminent author who has said that there is a distinction between a man who
has command over ‘Shastras’ and the other who knows it and puts into
practice. He who practises them can alone be called a ‘vidvan’. Though
it was told in a different context yet the said principle can be taken
recourse to, for one may know or be aware of that use of intemperate
language should be avoided in judgments but while penning the same the
control over the language is forgotten and acquired knowledge is not
applied to the arena of practice. Or to put it differently the knowledge
stands still and not verbalised into action. Therefore, a committed
comprehensive endeavour has to be made to put the concept to practice so
that it is concretised and fructified and the litigations of the present
nature are avoided.
21. Coming to the case at hand in our considered opinion the
observations, the comment and the eventual direction were wholly
unwarranted and uncalled for. The learned Chief Judicial Magistrate had
felt that the due to delay and other ancillary factors there was no
justification to exercise the power under Section 156 (3) of the Code. The
learned Single Judge, as is manifest, had a different perception of the
whole scenario. Perceptions of fact and application of law may be
erroneous but that never warrants such kind of observations and directions.
Regard being had to the aforesaid we unhesitatingly expunge the remarks
and the direction which have been reproduced in paragraph three of our
judgment. If the said remarks have been entered into the annual
confidential roll of the judicial officer the same shall stand expunged.
That apart a copy of the order be sent by the Registrar of this Court to
the Registrar General of the High Court of Allahabad to be placed on the
personal file of the concerned judicial officer.
22. The appeal is allowed accordingly.
............................................J.
[DR. B.S. Chauhan]
............................................J.
[Dipak Misra]
New Delhi;
May 17, 2012.
-----------------------
[1] 2007 ALJ (1) 221
[2] AIR 1963 SC 1728
[3] AIR 1968 SC 453
[4] AIR 1988SC 1395
[5] AIR 1994 Sc 1031
[6] AIR 1991 SC 3240
[7] 1997 SCR 420
[8] AIR 1990 SC 1737
[9] AIR 2001 SC 1972
[10] AIR 1964 SC 703
[11] AIR 2005 SC 3309
[12] 1987 1 SCR 1
[13] (1999) 9 SCC 211
