In the Matter of : 'K', a Judicial Officer, (SC) BS10786
SUPREME COURT OF INDIA

Before:- Dr. A.S. Anand, CJI, and R.C. Lahoti, J.

Criminal Appeal No. 165 of 2001 (Arising out of SLP(Crl.) No. 1466 of 2000). D/d. 8.2.2001

In the Matter of : 'K', a Judicial Officer - Appellant

For the Appellant :- Mr. Kapil Sibal, Sr.Advocate with Mr. R.P. Lao, Mr. Sanjay Lao, Mr. Chirag M. Shroff and Mr. M.N. Shroff, Advocates.

For the Respondents :- Mr. Sanjay K. Kaul, Sr.Advocate with and Ms. A. Subhashini, Advocate.

NOTE

Section 482 Criminal Procedure Code - Remarks against the lower court judge while deciding the appeal/ revision by the H.C. The aggrieved judge can approach the HC. U/S.482 Criminal Procedure Code

A. Constitution of India, Articles 136 and 142 - Criminal Procedure Code, 1973, Sections 235, 236 and 482 - Disparaging remarks against a subordinate judicial officer in a judgment - Law with regard to making and expunging of remarks elaborately explained.

[Paras 14, 15, 10 and 11]

B. Criminal Procedure Code, 1973, Sections 482, 235 and 236 - Constitution of India, Articles 142 and 136 - Disparaging remarks made by court of superior jurisdiction against subordinate judicial officer - The concerned judicial officer has remedy to approach High Court to seek expunction of remarks - High Court has inherent power to expunge remarks - However if similar relief is sought against the judgment of High Court, the concerned officer can approach Supreme Court in exceptional cases - Any passage from an order or judgment may be expugned or directed to be expugned subject to satisfying the following tests :-

i. That passage complained of is wholly irrelevant and unjustifiable.

ii. That its retention on record 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.

[Paras 10, 11 and 14]

C. Constitution of India, Articles 136 and 142 - Criminal Procedure Code, 1973, Section 482 - Unbecoming conduct of subordinate judicial officer while deciding a case - High Court to avoid judicial pronouncement on the conduct of judicial officer, but draw attention of Chief Justice separately for appropriate action.

[Paras 15 and 16]

Cases Referred :-

Panchanan Banerji v. Upendra Nath Bhattacharji, AIR 1927 Allahabad 193.

Niranjan Patnaik v. Sashibhusan Kar and another, 1986(2) SCC 569.

Dr. Raghubir Saran v. State of Bihar and another, 1964(2) SCR 330.

State of Uttar Pradesh v. Mohammad Naim, 1964(2) SCR 363.

Philip William Ravanshawe Hardless v. Gladys Isabel Hardless and others, AIR 1940 Lahore 82.

A.M. Mathur v. Pramod Kumar Gupta, 1990(2) SCC 533.

JUDGMENT

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.

2. Leave granted.

3. 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 infrastructure facilities and needed additions, alterations and improvements. The District Judge was persuading the State Officer 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 cognizance of offences punishable under Sections 380, 201, 120B of the Indian Penal Code and issued process requiring presence of the accused persons before her. The persons requiring 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 cognizance for substantive offences under the Indian Penal Code 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 cognizance of the offences under Sections 380, 201, 120B Indian Penal Code taken by the learned Metropolitan Magistrate. After hearing the learned 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 :-

4. With the abovesaid 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.

5. During the course 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.

6. Several cases 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 offices and methodology to be followed if it becomes necessary.

7. 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 no 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.

8. 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 functionary or anyone else than the parties comes (sic) 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 and 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).

9. 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 Allahabad 193 was cited with approval before this Court in Niranjan Patnaik v. Sashibhusan Kar and another, 1986(2) SCC 569:

This Court went on to add :-

10. 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 various 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 another, 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. 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 :- (1) 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.

11. 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 Mohammad Naim (supra)].

12. It was so said by a Special Bench of three - Judges presided over by Tek Chand, J. in Philip William Ravanshawe Hardless v. Gladys Isabel Hardless and others, AIR 1940 Lahore 82 :

13. 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 made 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 :-

14. 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 had 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 wielding 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 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 put 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 and 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 least, 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 ?

15. 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 on 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 petitioner 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.

16. 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 practice finds a mention suggesting an appropriate course to be followed in such situations :

17. 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) :-

18. Reverting back to the case at hand, may be that the learned Metropolitan Magistrate in initiating contempt proceedings and taking cognizance 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 ill 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 felt 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 court room and discharging judicial functions. The fact remains that the observations were made by the High Court without affording the Metropolitan Magistrate an 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.

19. We must place on record the very fair 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.

20. For the foregoing reasons the petition is allowed. The following portions occurring in the judgment of the High Court are directed to be expunged :-

21. The petition stands disposed of accordingly. Needless to say the abovesaid 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.

Petition allowed.