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PETITIONER: R. K. LAKSHMANAN

       Vs.

RESPONDENT: A. K. SRINIVASAN & ANR.

DATE OF JUDGMENT01/08/1975

BENCH: SARKARIA, RANJIT SINGH BENCH: SARKARIA, RANJIT SINGH CHANDRACHUD, Y.V. BHAGWATI, P.N.

CITATION:  1975 AIR 1741            1976 SCR  (1) 204  1975 SCC  (2) 466  CITATOR INFO :  RF         1986 SC 819  (21)  R          1987 SC1436  (14)  R          1990 SC1737  (14)

ACT:      Practice  and   procedure-Disparaging  remarks  against persons or  authorities whose  conduct  for    consideration before Courts of Law-Tests to be applied.

HEADNOTE:      The appellant  was a  District Magistrate.  In  a  case pending before  him an  affidavit of one of the sureties was attested by  the respondent who was a practising advocate On the failure  of the surety to appear in the Court on the due date, notice  was issued  to him.  The  notice  having  been returned unserved,  the Magistrate  issued a  notice to  the respondent, despite  the fact  that  he  was  not  the  duly constituted attorney  of the  surety, calling  upon  him  to appear in  the court  in  connection  with  this  case.  The respondent thereupon  moved the High Court under s. 561A Cr. P.C. alleging  that the notice was arbitrary and amounted to an abuse  of the  process of  the court because there was no provision in  the Criminal  Procedure  Code  empowering  the Magistrate to  issue such  a notice to him that he was in no way connected  with the  bail bond  and that  the notice was issued to  humiliate him  and the  Bar since  the latter had passed a  resolution protesting  against  the  improper  and discourteous behaviour  of the  Magistrate.  The  respondent prayed that  the  appellant  be  directed  to  withdraw  the notice.      The High  Court called  for a report from the appellant as to the circumstances in which he had thought fit to issue notice as  also the  provision of  law. After  receiving the appellant’s report the High Court quashed the notice holding that the  action of  the Magistrate constituted grave misuse of his power and flagrant abuse of the process or the Court.      The appellant’s  application  to  the  High  Court  for expansion of certain remarks made against him was rejected.      Dismissing the appeal to this Court. ^      HELD :  (1) The  tests to  be  applied  in  considering

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expansion  of   disparaging  remarks   against  persons   or authorities whose  conduct comes in for consideration before courts of law in cases to be decided by them are (i) Whether the party  whose conduct  is in question is before the Court or has  an opportunity  of explaining  or defending himself; (ii) Whether  there is  evidence on  record hearing  on that conduct justifying  the remarks  and  (iii)  Whether  it  is necessary for  the decision of the case, as an integral part thereof, to  animadvert on  that conduct.  lt has  also been recognised that  judicial pronouncements must be judicial in nature  and   should  not  normally  depart  from  sobriety, moderation and reserve.  [209A-D]      State of  U.P. V. Muhammad Nain, [1964] 2 S.C.R. 363 at 374, applied.      In the  present case  in response  to the High’ Court’s notice the  appellant submitted a detailed report Before the High  Court   he  was   represented  by  a  senior    Public prosecutor. He  had thus  adequate opportunity of explaining his conduct  in defending the impugned action. The appellant cannot complain  that the  remarks were  passed by. the High Court without  affording him  due opportunity to explain and defend his action. [209E-F]      (2)  Though  the  notice  by  itself  was  not  a  very offensive document  the allegation  of bad faith and that it was issued  to humiliate  an advocate  and the  Bar  who had earlier  passed   a  resolution   complaining  against   the misbehaviour of  the   appellant showed  that the notice was illegal arbitrary  and tainted  with bad  faith.  It  was  a preliminary step  taken under  cover of  s. 476  Cr. P.( for possible prosecution of the Advocate. [209G-210C] 205      (3)(a) The  notice  issued  to  the  surety  which  was returned by  the police stated that the service could not be effected  for   want  of  sufficient  information  and  more detailed  particulars   regarding  the   surety  while   the appellant stated  that "it  was reported  by the police that there was  no such  person as  far as they could gather from the detailed inquiries made and, therefore, notice could not be served"  Evidently this misleading stand was taken by the appellant to  show that action under s. 476 Cr. P.C. against the Advocate would not be groundless. [210E H]      (b)The remarks  of the High Court were an integral part of the reasoning of the High Court. They were not irrelevant or  foreign   to  the   matter  under   issue..  They   were inextricably intertwined  with the  findings and  the  order recorded by  the High Court. Excision of these remarks would emasculate the  order of  the High  Court robbing  it of its very rationale.[211A-B]

JUDGMENT:      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1 30 of 1975.      Appeal by  Special Leave  from the  Judgment and  Order dated the  13th March,  1974 of  the Kerala  High  Court  in Criminal Misc.  Petition No.  7 of  1974 with  Crl. M.P. No. 967/73.      K. T.  Harindranath  and  T.  T.  Kunhikanan,  for  the appellant.      A. S. Nambiar for respondent no. 1.      K. R. Nambiar, for respondent No. 2.      The Judgment  of the  Court was  delivered by SARKARIA, J.-This appeal  by  special  leave  is  directed  against  a judgment of  the Kerala High Court rejecting the appellant’s

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application under  s. 561-A.  Criminal  Procedure  Code  for expunction of  certain remarks  made against him in the High Court’s order,  dated 20-11-1973, in Criminal Misc. Petition No. 967 of 1973.      The appellant  is  a  member  of  the  Kerala  Judicial Service,  while   the  respondent   herein  is  an  Advocate practising at  Ernakulam. On  14-8-1973, the  appellant  was working as  District Magistrate Ernakulam. One Kamaleswaran, who was  an accused in C.C. Nos. 216 and 217 of 1973 pending before him,  was ordered  to be  released  on  bail  on  his executing a  bond for  Rs. 1,000/-  with two sureties in the like amount. The two sureties were Kamaleswaran, the brother of  the  accused,  and  Sri  Thankappan  Nair.  Thankappan’s address was  given  as  "businessman,  son  of  Parameswaran Pillai,  Thambanoor  Trivandrum."  The  affidavit  filed  by Thankappan, while  offering himself  as surety, was attested by Sri  A. K. Srinivasan Advocate stating "solemnly affirmed at Ernakulam  on this  14th day  of August  1973 and  signed before me who is personally known to me".      The above  cases stood  posted for  examination of  the accused under s. 342 of the Code of Criminal Procedure. When on that  date the cases were called for hearing, the accused was  absent.   His  Counsel  Shri  Srinivasan  appeared  and represented that  although he  had no  information from  the accused, who  had  to  come  from  Trivandrum.  yet  he  was expecting him  to reach  the court  in time.  The  appellant (District Magistrate)  thereupon ordered cancellation of the bail bonds and 206 directed issue  of notices to the Surety under s. 514 of the Code of   Criminal  Procedure calling upon him to show cause before  16-10-1973   why  the  terms  of  the  Surety  bonds providing for  forfeiture of  the sum  of Rs. 1,000/- be not enforced. The  notices issued to the Surety Thankappan Nair, were returned  unserved whereupon on the 17th October, 1973. the appellant  issued a  non-bailable warrant for the arrest of the  Surety. On the following day, the appellant issued a notice to Sri A. K. Srinivasan, Advocate which ran as under:           "Ernakulam District  Magistrate Court No. M.C. 106      and M.C. 107 of 1973.      Notice for Shri A. K. Srinivasan, Advocate.           The above-mentioned  cases  are  being  fixed  for      hearing 3-11-1973  at   11 A.M.  You  are  required  to      appear before the Court. .... .............                                                     By order                                                         Sd./ 18th October.                              1973 SARISHADAR."      It may  be  mentioned  here  that  in  the  proceedings initiated under  s. 514 of the Code of Criminal Procedure in the two  cases .  Mr. Srinivasan,  Advocate was not the duly constituted attorney or the Surety, Thankappan.      On receipt  of the  aforesaid notice,  Mr.  Srinivasan, Advocate filed  Crl. M.P.  967 of 1973 before the High Court of Kerala  under s.  561-A of the Code of criminal Procedure praying that  the appellant  be  directed  to  withdraw  the notice, dated  18-10-1973, on  the ground  that the issue of notice was arbitrary and amounted to an abuse of the process of the court because-           (a)  There  is   no  provision   in  the  Criminal                Procedure Code  empowering the  Magistrate to                issue such a notice to command the Advocates’                appearance when he is not connected either as                a witness  or a  party or  otherwise with the                proceedings relating to cancellation of bail-                bonds;

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         (b)  The notice  was issued  to humiliate  him and                the  Bar   since  the  latter  had  passed  a                resolution, on 21-7-1973, pro testing against                the improper and discourteous treatment meted                out by  the Magistrate  to the members of the                Bar.      The learned  Judge of  the High  Court before whom this petition came  up for  hearing, by an order dated 2-11-1973, called  for   a  report  from  the  appellant  by  5-11-1973 regarding  the  allegations  contained  in,  the  Advocate’s petition and particularly as to under which provision of law and under  what circumstances he had thought it fit to issue a notice  to the Advocate requiring him to appear before him on 3-11-1973.  The appellant  thereupon submitted the report to the High Court, the material part of which reads:           "When notice  was sent  to the  surety  Thankappan      Nair  whose   address  is   given   as,   business-man,      Thambanoor, 207      Trivandrum, it was reported by the Police that there is      no such  person, as  far as they could gather, from the      detailed enquiries  made and therefore notice could not      be served.  In the  affidavits filed by Shri Thankappan      Nair in  these two  cases when  he offered  himself  as      surety the  signatures of the deponent were attested by      Shri  A.  K.  Sreenivasan,  Advocate  stating  Solemnly      affirmed at  Ernakulam on  this the  14th day of August      1973 and  signed before me? who is personally, known to      me.  From  the  report  of  the  Police  Trivandrum  it      appeared  that   this  might   be  a   case  of   false      personation. It  is seen  that  in  several  cases  the      accused have  been got  re leased  by  false  sureties.      have already  submitted a  report  about  this  to  the      Hon’ble High Court as per my letter dated 31-10-1973.           There are several other similar instances of false      personation and filing false affidavits pending enquiry      before this Court. Under the circumstances in this case      also it  appeared to  the court  that a false affidavit      has been  filed by  false personation.  If it  is false      personation, the  attestation by  the  advocate  should      necessarily be  false. The offences under Sections 193,      196, 197,  199 and  205 of the Indian Penal Code appear      to have  been committed. These are some of the offences      mentioned in Section 195 Cr]. P.C. Under section 476 of      the Cr.  P.C. when any Civil, Revenue or Criminal Court      is whether  on application made to it in this behalf or      otherwise, of  opinion that  it  is  expedient  in  the      interest of justice that an enquiry should be made into      any offence  referred to  in Section  195,  Sub-section      (1), Cl.  (b) or  cl. (c),  which appears  to have been      committed in  or in  relation to  a proceeding  in that      court, such  court may,  after such preliminary inquiry      if any,  as it  thinks necessary,  record a  finding to      that effect  and make  a complaint  thereof in  writing      signed by  the presiding  officer  of  the  Court..  To      ascertain   whether there  is a  person as described in      the affidavits  filed in  the name  of Shri  Thankappan      Nair notice  was issued  as  part  of  the  preliminary      enquiry contemplated under Section 476 Cr. P.C. to Shri      A. K.  Sreenivasan who  has attested  the affidavits of      the said  Thankappan Nair  stating that the deponent is      personally known to him. This had to be done in view of      the  report   of  the  police.  Notice  to  Shri  A  K.      Sreenivasan was  issued to appear in court on 3-11-1913      not in  his capacity  as  Advocate  appearing  for  the

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    accused  but   as  the  person  who  has  attested  the      affidavit of the said surety stating that he personally      knows the  surety. The  court can  make the preliminary      enquiry mentioned  above, either  through the police or      to the  accused or to the other surety or to the person      who attested  the affidavit.  In this matter accused is      absconding. the  other surety  could not  be served and      the police  report is  as stated  above.  So  the  only      person to  whom the  inquiry under 476 could be made in      the circumstances  is the  person who  has attested the      affidavit." 208      On 8-11-1973,  the Advocate filed an affidavit in which he inter alia averred:           "I submit  that the  present explanation  that the      notice was  issued to  me as  a part of the preliminary      enquiry contemplated  under sec.  476 of  the  Criminal      Procedure Code  is obviously an after-thought, since it      is  difficult   that  any  reasonable  man  would  have      inferred from  the Police  Report dated 12-10-1973 that      Sri Thankappan  Nair" one  of the  sureties was  a non-      existent person and therefore the attestation mad by me      on 14-8-1973 would have been false". He further  reiterated with  elaboration the  allegations in his petition  that the  impugned action  of  the  Magistrate lacked good  faith and  due care  and  had  been  issued  to humiliate the bar generally and the petitioner particularly.      After taking  into consideration the appellant’s report and other  material on  record, the  High Court  quashed the notice holding  that the  "action of the District Magistrate in issuing  the impugned notice to the appellant constitutes grave misuse of his power and flagrant  abuse of the process of the court".      The appellant then moved an application (Cr. M.P. No. 7 of 1974)  for expunction  of the remarks made against him by the  High   Court  in   its  order,  dated  20-11-1973.  The application was rejected.      Against  that   order,  dated  13-3-1974,  refusing  to expunge the  ad- verse remarks, Shri Lakshmanan the District Magistrate has come in appeal to this Court.      11l the reply affidavit, dated 21-3-1975, filed in this Court, the  appellant has  submitted that  if this  Court is prima In  of the  opinion that  the passages requested to be expunged are  too many and spread over throughout the order, at least  these four  passages be expunged from the order in question:           "(i) I  cannot help remarking that the information      furnished to  this Court  by the District Magistrate in      his report  dated 3-11-1973  regarding the  contents of      the   Police   Report   is   grossly   inaccurate   and      misleading."           "(ii) I  make no  secret of  my opinion  that  the      action taken by the District Magistrate, in the present      case in  issuing a  notice to  the petitioner, who is a      member of  the bar,  was most  highly arbitrary and the      very casual  fashion in  which the said action has been      done renders it all the more objectionable."           "(iii)  that   the  action   taken   against   the      petitioner by the District Magistrate is totally devoid      of any legal sanction and highly arbitrary. ’ 209           "(iv) l  hold that  the  action  of  the  District      Magistrate  in  issuing  the  impugned  notice  to  the      petitioner constitutes  a grave misuse of his power and      also flagrant abuse of the process of his court".

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    The tests  to be  applied in considering the expunction of disparaging  remarks against persons or authorities whose conduct comes  in for  consideration before courts of law in cases to  be decided  by them, were neatly summed up by this Court, speaking  through S.  K. Das, J., in State of U.P. v. Muhammad Nain,(1) thus:           "(i) Whether  the   party  whose   conduct  is  in                question  is  before  the  court  or  has  an                opportunity  of   explaining   or   defending                himself;           (ii) Whether  there is  evidence on record bearing                on that conduct justifying the remarks; and           (iii)Whether it  is necessary  for the decision of                the case,  as an  integral part  thereof,  to                animadvert on that con duct. It has also been                recognised that  judicial pronouncements must                be judicial  in  nature,  and  should  n  not                normally depart from sobriety, moderation and                reserve."      Let us now apply these tests to the present case.      In the  petition filed under s. 561-A, Code of Criminal Procedure by  the Advocate,  the appellant  was impleaded as the sole  respondent. The  appellant was  called upon by the High Court  to explain  his conduct  in issuing the impugned notice. In reply, the appellant submitted a detailed report. It is  not controverted  that before  the  High  Court.  the appellant was  represented by a senior Public Prosecutor who had been directed to defend him by the State Government. The appellant had  thus adequate  opportunity of  explaining his conduct and  defending the  impugned action.  Indeed, in his report submitted  to the  High Court,  he did  his  best  to justify his  conduct in  that case. The appellant therefore, cannot complain  that the remarks in question were passed by the High  Court without  affording him  due  opportunity  to explain and defend his action.      Nor can  it be said that this is a case where there was no  evidence  on  record  bearing  on  the  conduct  of  the appellant to which the re marks in question pertain.      It is  true that  ex-facie, the  notice  requiring  the Advocate to  attend the  Court of  the Appellant on 3-11-73, though couched  in curt and peremptory language, was not, by itself,  a  very  offensive  document.  But  the  Advocate’s allegation was that it had not been issued in good faith and the sole  purpose of issuing this notice was to humilate the Advocate and  the Bar  who had  earlier passed  a resolution complaining to  the High  Court against  the misbehaviour of the appellant  towards the members of the Bar. Subsequently, on 8-11-1973 the 210 Advocate field  an affidavit  setting forth full particulars of the circumstances which, according to him, showed how the notice was  illegal. arbitrary  and tainted by bad faith. He annexed a  copy of  the Bar’s  resolution, to his affidavit. the report sent by the appellant to the High Court confirmed that the  allegations made  in the  Advocate’s petition were not empty apprehensions. The report revealed that the notice was not  an innocuous  request to  the  Counsel  to  furnish better k particulars of the Surety, but it was a preliminary step taken  under cover  of s.  476, Criminal Procedure Code for possible prosecution of the Advocate. The appellant gave a clear  clue to his ulterior intent, when in the report, he said:           "Notice   to    Shri   A.   K.   Sreenivasan   was      issued....not in his capacity as Advocate appearing for      the accused  but as  the person  who has  attested  the

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    affidavit of the said Surety .... "      Thus there  was ample  material before  the High  Court bearing on the impugned conduct of the appellant, justifying the adverse comments in question.      Again, the  passages sought to be expunged could not be said to  be irrelevant or alien to the subject matter of the case before the High Court.      The notice  issued to  the Surety  had been returned by the police with an endorsement which, rendered into English, reads as under:           "Notice could not be served on the person referred      to in the notice as he (process server) did not get any      information about him after detailed enquiry made about      him in  Tampanoor from  different businessmen. For want      of sufficient information and more detailed particulars      regarding the  nature  of  the  business  conducted  at      Tampanoor by  the person referred to in the notice, the      service could not be ’ effected.           Submitted for orders".      But in  his report  submitted to  the High  Court,  the appellant stated  that "it  was reported  by the Police that there is no such person as far as they could gather from the detailed inquiries  made and  therefore notice  could not be served".  Manifestly,  this  statement  did  not  present  a faithful and  correct picture  of  the  endorsement  of  the process server.  Evidently, this  misleading stand was taken by the  appellant to show that action under s. 476, Criminal Procedure Code against the Advocate would not be groundless. In these premises it cannot be said that the observations of the High  Court that "information furnished to this Court by the  District   Magistrate  in   his  report  dated  3-11-73 regarding the  contents of  the  Police  Report  is  grossly inaccurate and misleading" was unjustified. 211      The substance  of the  other  remarks  in  question  is substantially the same, viz., that the issue of the impugned notice to  the Advocate  by the  appellant was  illegal  and arbitrary and  amounted to  a gross  abuse of the process of the Court.  These remarks  were  an  integral  part  of  the reasoning of  the High  Court. They  were not  irrelevant or foreign to  the matter  in  issue.  They  were  inextricably intertwined with  the findings and the order recorded by the High Court  in that  case. Excision  of these  remarks would emasculate the  order of  the High  Court, robbing it of its very rationale.      Judged by the aforesaid tests, no case for interference by this Court has been made out.      Accordingly, we dismiss the appeal, with no order as to costs. P.B.R.                                     Appeal dismissed. 212