AMAR PAL SINGH Vs STATE OF U.P.
Bench: B.S. CHAUHAN,DIPAK MISRA
Case number: Crl.A. No.-000651-000651 / 2009
Diary number: 24525 / 2007
Advocates: DEBASIS MISRA Vs
KAMLENDRA MISHRA
Page 1
Reportable
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
Page 2
2
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
Page 3
3
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”
Page 4
4
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 Another1. 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
1 2007 ALJ (1) 221
Page 5
5
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.
Page 6
6
9. In Ishwari Prasad Mishra v. Mohammad Isa2, 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 2 AIR 1963 SC 1728
Page 7
7
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
3 AIR 1968 SC 453
Page 8
8
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.
4 AIR 1988SC 1395
Page 9
9
12. In K. P. Tiwari v. State of Madhya Pradesh5, 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 5 AIR 1994 Sc 1031
Page 10
10
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
Page 11
11
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 Bihar6 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 India7 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
6 AIR 1991 SC 3240 7 1997 SCR 420
Page 12
12
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 Gupta8 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.”
8 AIR 1990 SC 1737
Page 13
13
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 Naim10, 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.
9 AIR 2001 SC 1972 10 AIR 1964 SC 703
Page 14
14
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.”
Page 15
15
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
11 AIR 2005 SC 3309 12 1987 1 SCR 1
Page 16
16
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
13 (1999) 9 SCC 211
Page 17
17
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
Page 18
18
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
Page 19
19
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
Page 20
20
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.
Page 21
21