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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 country-

made 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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