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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

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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

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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”  

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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

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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.  

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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

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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

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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

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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

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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

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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

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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

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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

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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.”

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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

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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

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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

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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

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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

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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.

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