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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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