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CASE NO.: Appeal (crl.)  994 of 2005

PETITIONER: Samya Sett                                               

RESPONDENT: Shambu Sarkar & Anr.                             

DATE OF JUDGMENT: 12/08/2005

BENCH: CJI R.C. Lahoti,C.K. Thakker & P.K. Balasubramanyan

JUDGMENT: J U D G M E N T (Arising out of S.L.P. (Criminal) No. 2979 of 2004)

C.K. Thakker, J.

       Leave granted.

       The present appeal reminds us of a golden advice given by this  Court before more than four decades.  In State of U.P. vs. Mohd. Naim,  (1964) 2 SCR 363, a single Judge of the High Court of Allahabad while  deciding a criminal case, made certain sweeping and uncalled for  observations against the entire police force of the State.  The State,  therefore, approached this Court making grievance against  indiscriminate observations by the High Court.   Observing that the  case was exceptional in nature and inherent powers of expunging  remarks were called for, this Court, speaking through S.K. Das, J.  stated :

"The last question is, is the present case a case of an  exceptional nature in which the learned Judge should  have exercised his inherent jurisdiction under S. 561- A Cr.P.C. in respect of the observations complained  of by the State Government?  If there is one principle  of cardinal importance in the administration of justice,  it is this : the proper freedom and independence of  Judges and Magistrates must be maintained and they  must be allowed to perform their functions freely and  fearlessly and without undue interference by anybody,  even by this Court.  At the same time it is equally  necessary that in expressing their opinions Judges and  Magistrates must be guided by considerations of  justice, fair-play and restraint.  It is not infrequent that  sweeping generalizations defeat the very purpose for  which they are made.  It has been judicially  recognized that in the matter of making disparaging  remarks against persons or authorities whose conduct  comes into consideration before courts of law in cases  to be decided by them, it is relevant to consider (a)  whether the party whose conduct is in question is  before the court or has an opportunity of explaining of  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.  It has also been recognized that judicial  pronouncements must be judicial in nature, and  should not normally depart from sobriety, moderation

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and reserve." (emphasis supplied)

       In the case on hand, a judicial officer is constrained to approach  this Court for expunging remarks made by a single Judge of the High  Court of Calcutta against him.  The remarks were made in the light of  an order passed by the appellant in connection with a criminal case  instituted against one Shambhu Sarkar.  It was the case of the  prosecution that the accused-Shambhu Sarkar was found possessing  1200 grams of ganza on September  21, 2003.  He was, therefore,  arrested and a case was registered in Naihati P.S. Case No.115  of 1993  under Section 20 of the Narcotic Drugs and Psychotropic Substances   Act, 1951 (hereinafter referred to as "NDPS Act").  He was produced  on September 22, 2003 before the appellant who was then working as  Additional District & Sessions Judge, 6th Court, cum- Special Court  under the NDPS Act, Barsat, District 24 Parganas. An application for  bail was moved by the accused which was rejected by the appellant.   The case was directed to be listed on November 3, 2003 for the report  of the investigating officer.  On November 3, 2003, another bail  application was moved by the accused which was also rejected by the  appellant.  The case was then fixed for hearing on November 17, 2003.   On that day, the accused again made an application for bail which was  rejected and the case was adjourned to December 1, 2003.  Before that  date, however, on November 21, 2003, an application for bail was  moved on behalf of the accused under sub-section (2) of Section 167 of  the Code of Criminal Procedure, 1973 (hereinafter referred to as "the  Code") contending inter alia that the statutory period for submission of  charge sheet was over and no charge sheet had been submitted by the  police.   The accused was, therefore, entitled to be released on bail.    Noting these facts, the appellant passed an order releasing the accused  on bail on furnishing a bond of Rs.3,000/- with two sureties of  Rs.1500/- each.  On the same day, however, at a later stage, it was  stated that the chargesheet had already been submitted.  The case diary  was produced by the prosecution which showed that the cognizance for  an offence punishable under Section 20 of the NDPS Act had been  taken against the accused.  But as the public prosecutor was not  present, those facts could not be brought to the notice of the court.  In  the circumstances, the appellant recalled the earlier order.

       The accused preferred Criminal Revision against the order passed  by the appellant in the High Court of Calcutta.  The learned single  Judge of the High Court, by an order dated December 5, 2003, allowed  the revision and set aside the order passed by the appellant.  According  to the learned single Judge, when the appellant had passed the first  order and granted bail to the accused, he could not have recalled the  order "in absence" of the accused.  The second order, according to the  learned single Judge, therefore, was "not in accordance with law" and  liable to be set aside.  The appellant was accordingly directed to pass a  fresh order.  In the light of the directions issued by the High Court, the  appellant again heard the matter on December 15, 2003.  The defence  counsel relied upon a decision of this Court in Aslam Babalal Desai  vs.  State of Maharasthra,  (1992) 4 SCC 272, and contended that once bail  was granted to the accused under sub-section (2) of Section 167 of the  Code, it could not be cancelled or recalled.  The appellant, however,  distinguished Aslam and observed that the principle laid down therein  was not applicable to the case since it was a case of cancellation of bail  on filing of charge sheet.  In the present case, bail was granted to the  accused on the ground of non-submission of charge sheet but in fact  charge sheet had already been submitted on the last day i.e. November  21, 2003 and hence the provisions of sub-section (2) of Section 167 of  the Code were not attracted.  The appellant also noted that when he had  passed the order in the earlier part of the day, the learned public  prosecutor in charge of the case was "not present" and thus he could  not inform the court that the charge sheet against the accused had been  submitted.  Later on, it was found that the charge sheet had been filed  against the accused.  It was thus clear that sub-section (2) of Section

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167 of the Code did not apply.  Accordingly, the appellant rejected the  prayer for bail.  Against that order, once again the accused approached  the High court by filing Criminal Revision  which was allowed by the  learned single Judge on January 30, 2004.  He set aside the order, dated  December 15, 2003 and directed the appellant to pass necessary order  "forthwith" keeping in mind the observations made in the judgment.   While deciding the revision, the learned single Judge made certain  remarks and passed strictures against the appellant. Being aggrieved by  those remarks and observations, the appellant is before us.  The learned  single Judge dealing with the revision against the second order passed  by the appellant herein,  inter alia stated :

"It is clear from the order dated 15.12.2003 that the  learned Judge completely ignored the direction of  this Court and his order dated 15.12.2003 amounts  to clear violation of directions of this Court.         .....           \005..          \005..          \005..                   After perusing the order of the learned Judge  dated 15.12.2003 in the said case I find that the  learned Judge did not realise his mistake and not  only that, by his impolite and arrogant attitude he  has clearly ignored the order of this Court.  His  order has made it clear that he did not realize the  observation of this Court that later part of order  dated 21.11.2003 was set aside by this Court as the  said order was bad in law.         .....           \005..          \005..          \005..                   The learned Judge did not realize that in our  country administration of Justice and justice  delivery system deserves that subordinate Courts  should obey, honour and follow the orders and  directions of higher courts.  A subordinate court  cannot simply keep aside and ignore the direction of  the higher Court.         .....           \005..          \005..          \005..                   His conduct was aiming towards dangerous  trend and was about to destroy this system and  discipline.  The manner in which learned Judge  passed the order on 15.12.2003 in spite of Hon’ble  Supreme Court’s pronouncement in Aslam Babaial  Desai’s case (supra) and direction of this Court  dated 5.12.2003 makes it clear that by ignoring  order of higher court he has made breach of judicial  discipline and has damaged out criminal justice  system.         .....           \005..          \005..          \005..                           In my opinion the conduct of learned Judge Sri  S. Sett is an example of ignoring direction of this  Court for which the entire matter should be placed  before the Administrative Committee of this Court  for taking appropriate action against the concerned  learned Judge."

       On July 9, 2004, when the matter came up for admission, this  Court granted permission to file Special Leave Petition and issued  notice to the Registrar General of the High Court of Calcutta.  The  Court, however, stated:         "Notice need not go to the respondents impleaded  by the petitioner as they have no interest in contesting  the petition".

       We have heard the learned counsel for the appellant.  As already  observed hereinabove, the facts are almost admitted.  The appellant was  Additional District & Sessions Judge and in charge of Special Court

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under NDPS Act.  Accused Shambhu Sarkar was produced before him  on September 22, 2003 and his bail application was rejected.   On  November 21, 2003, an application for bail was moved by the accused  praying for grant of bail on the assertion by the accused that no charge  sheet had been submitted within the stipulated period.  The appellant, in  absence of the public prosecutor and in the light of averments made by  accused, ordered him to be enlarged on bail.  It was thus a case of  "default bail".  On the same day, however, at a later stage, the public  prosecutor appeared, drew attention of the court that the factual basis  on which the accused was ordered to be  enlarged on bail was incorrect,  the charge sheet had already been submitted and sub-section (2) of  Section 167 of the Code could not be invoked.  The appellant  considered the submission of the public prosecutor,  noted that when  the first order was passed, learned public prosecutor was not present  and after observing that the charge sheet had been submitted, recalled  the order.  No doubt, the accused had right to challenge that order and  he in fact challenged the order by filing Criminal Revision.  He   contended before the High Court that the second order was passed by  the appellant recalling the first order in his absence and without giving  him opportunity of hearing.  The learned single Judge of the High  Court, in our opinion, was right in allowing revision petition of the  accused and in observing that once the order was passed in favour of  the accused releasing him on bail, it could not have been recalled  without observing principles of natural justice.  The learned single  Judge was also right in setting aside the said order and in directing     the   appellant    to     afford     opportunity     of     hearing   to the  accused and to pass an appropriate order "in accordance with law".   The appellant again heard the matter and rejected the bail application.    Negativing the contention of the accused that he was entitled to bail  under sub-section (2) of Section 167 of the Code and in view of the law  laid in Aslam, the appellant held that neither sub-section (2) of Section  167 of the Code nor ratio in Aslam could apply inasmuch as the  accused was not enlarged on bail and bail was not cancelled thereafter.   According to the appellant, within the requisite period,   charge sheet  had been submitted by the   police   and   the   accused was not entitled  to the benefit of  default  bail.  

        Now, whether the second order dated December 15, 2003,  passed by the appellant was or was not correct is not the matter in issue  in the present proceedings.  But, in our opinion, the learned single  Judge of the High Court was not justified in passing strictures against  the appellant to which reference has been made by us in the earlier part  of the judgment.  It may be recalled  that when the matter had come to  the High Court earlier, the learned single Judge  set aside the order  passed by the appellant on November 21, 2003 and directed him to give  an opportunity of hearing to the accused and to pass an appropriate  order ’in accordance with law’.  That direction had already been  complied with and carried out by the appellant. He afforded hearing to  the accused and rejected the application after considering the arguments  put forward by the learned advocate.  In our considered opinion,  therefore, it cannot be said that the appellant had attempted ’to maintain  his own order’ though it was held to be bad by the High Court.  It also  cannot be said that the appellant had "completely ignored" the  directions issued by the High Court.  The learned single Judge of the  High Court is also not correct in observing that from the order dated  December 15, 2003, passed by the appellant, it is clear that the  appellant did not realize his mistake and had shown "impolite and  arrogant attitude".   Likewise, it cannot be said that the appellant had  not shown respect to the order of the superior court and his conduct  would destroy judicial system and discipline.

       To us, it is clear that the appellant, keeping  in view the directions  issued by the High Court, heard the matter afresh after affording  opportunity of hearing to the accused and holding that the provisions  relating to ’default bail’ would not apply and the ratio in Aslam was not

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attracted, rejected the prayer for bail.  Even if it is assumed that the  appellant was not right in rejecting the application for bail of accused, it  was not a case which called for remarks and strictures against him.

       This Court has, in several cases, deprecated the practice on the  part of Judges in passing strictures and in making unsavoury,  undeserving, disparaging or derogatory remarks against parties,  witnesses as also subordinate officers.  

        In Alok Kumar Roy v. Dr. S.N. Sarma & Another, (1968) 1 SCR  813, the vacation Judge of the High Court of Assam and Nagaland  passed an interim order during vacation in a petition entertainable by  Division Bench.  After reopening of the Court, the matter was placed  before the Division Bench presided over by the Chief Justice in  accordance with the High Court Rules.  The learned Chief Justice made  certain remarks as to "unholy haste and hurry" exhibited by the learned  vacation Judge in dealing with the case.   When the matter reached this  Court, Wachoo, C.J., observed :

"It is a matter of regret that the learned Chief Justice  thought fit to make these remarks in his judgment  against a colleague and assumed without any  justification or basis that his colleague had acted  improperly.  Such observations even about Judges of  subordinate courts without the clearest evidence of  impropriety are uncalled for in a judgment. When  made against a colleague they are even more open to  objection.  We are glad that Goswami, J. did not  associate himself with these remarks of the learned  Chief Justice and was fair when he assumed that  Dutta J. acted as he did in his anxiety to do what he  thought was required in the interest of justice.  We  wish the learned Chief Justice had equally made the  same assumption and had not made these observations  castigating Dutta J. for they appear to us to be without  any basis.  It is necessary to emphasis 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 falliable."  (emphasis supplied)

       In State of M.P.  v. Nandlal Jaiswal & Others, (1986) 4 SCC 566,   disparaging and derogatory remarks were made by the High Court  against the State Government.  When the matter came up before this  Court and a complaint was made against these remarks, it was observed  by this Court that the remarks were "totally unjustified and  unwarranted".    

       Bhagwati, C.J. stated :

"We may observe in conclusion that judges should  not use strong and carping language while criticizing  the conduct of parties or their witnesses. They must  act with sobriety, moderation and restraint.  They  must have the humility to recognize that they are not  infallible and any harsh and disparaging strictures  passed by them against any party may be mistaken  and unjustified and if so, they may do considerable  harm and mischief and result in injustice."

       In A.M. Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533,  which was an offshoot of Nandlal Jaiswal, certain observations were  made by the High Court against the conduct of Advocate General of the  State.  Quoting Justice Cardozo and Justice Frankfurter, the Court

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stated that the Judges are flesh and blood mortals with individual  personalities and with normal human traits.  Still 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 should  be constant theme of judges, observed the Court.  "This quality in  decision making is as much necessary for judges to command respect  as to protect the independence of the judiciary."

       The Court further added :

"The Judge’s Bench is a seat of power.  Not only do  judges have power to make binding decision, their  decisions legitimate the use of power by other  officials.  The judges have the absolute and  unchallengeable control of the court domain.  But  they cannot misuse their authority by intemperate  comments, undignified banter or scathing criticism  of counsel, parties or witnesses.  We concede that  the court has the inherent power to act freely upon  its own conviction on any matter coming before if  for adjudication, but it is a general principle of the  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."

       In the matter of ’K’ A Judicial Officer (2001) 3 SCC 54, one of  us (R.C. Lahoti, J.), (as his Lordship then was) again considered the  relevant decisions on the point and said :

"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 filling appeals to this Court or  petitions before the High Courts 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 officers and methodology to be followed  if it becomes necessary.

       A Judge entrusted with the task of  administering justice should be bold and feel  fearless while acting judicially and giving  expression 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

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Judge."                 (emphasis supplied)

 [See also In the matter of : ’RV’, A Judicial Officer, (2004) 7 SCC  729]                  In State of Bihar vs.  Nilmani Sahu & Another, (1999) 9 SCC 211  while disposing of the Special Leave Petition against an order passed  by a  single Judge of the High Court of Patna, this Court observed; "We  find that the view taken by the learned single Judge, Justice P.K. Dev,  with due respect, if we can say so, is most atrocious".

       Feeling aggrieved by the remarks, an application was made in a  disposed of Special Leave Petition and it was submitted to this Court  that the remarks were not necessary.  Allowing the application and  deleting the remarks, this Court stated that they were "wholly  inappropriate".          

       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 the 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 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’ \026 even those of us who wear the long robe."                  (emphasis supplied)

Similar was the view of Thomas Reed Powell, who said; "Judges have preferences for social policies as you  and I.  They form their judgments after the varying  fashions in which you and I form ours.  They have  hands, organs, dimensions, senses, affections,  passions.  They are warmed by the same winter and  summer and by the same ideas as a layman is."

       In the present case, however, as we have already noted in the  earlier part of the judgment, whether the order passed by the appellant  was correct or not, but the remarks made, strictures passed and  directions issued by the learned single Judge of the High Court against  the appellant were improper, uncalled for and unwarranted.  Apart from  the fact that they were neither necessary for deciding the controversy  raised before the Court nor integral part of the judgment, in the facts  and circumstances of the case, they were not justified.  We, therefore,  direct deletion of those remarks.   

       The appeal is accordingly allowed to the extent indicated above.  

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