V.K. JAIN v.

HIGH COURT OF DELHI THROUGH R.G. AND ORS. (Criminal Appeal No. 521 of 2004)

SEPTEMBER 23, 2008  *   [DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ.]

The Judgment of the Court was delivered by

DALVEER BHANDARI,  J. 1. This appeal is directed against  the order dated 14th July, 2003 passed by the High Court of Delhi  

in Criminal Misc. (M) No.522 of 2003.  

2. The appellant, a judicial officer of the Delhi Higher Judicial  

Service,  is  aggrieved by the remarks and strictures which have  

been passed by the High Court of Delhi against him. According to  

the  appellant,  the  remarks  were  totally  undeserved,  unjustified,  

unmerited and unnecessary for deciding the issue involved in the  

case. In this appeal, he has prayed for expunging and deleting the  

remarks passed by the High Court.

3. Brief facts which are necessary to dispose of this appeal are  

recapitulated as under:

The appellant, at the relevant point of time, was posted as a  

Special  Judge  dealing  with  the  case  of  Central  Bureau  of  

Investigation  (for  short,  ‘CBI’)  at  New  Delhi.  The  appellant  all  

through  has  been  an  outstanding  officer  of  the  Delhi  Higher  

Judicial Service and consistently getting outstanding (A+) ACRs in  

his entire service career.  

4. Respondent No.3 Chander Prakash, a non-resident Indian  

(NRI)  along with  others were charge-sheeted by the CBI under  

section 120-B read with sections 420/467/468/471 of  the Indian

Penal Code (for short, ‘IPC’) and section 13(2) read with section  

13(1)(d)  of  the Prevention of  Corruption Act,  1988.  Respondent  

No.3 Chander Prakash was granted bail on 1.3.2002 subject to the  

condition that he will  not leave the country without permission of  

the  court.  On  4.3.2002,  respondent  no.3  filed  an  application  

seeking permission to go to Hong Kong. The said application was  

opposed by the CBI in writing on the ground that respondent no. 3  

might flee from justice and he may not be available for facing the  

trial.  During the pendency of the said application,  to assure the  

court and the CBI that respondent no.3 Chander Prakash would be  

available  for  the trial,  respondent  no.3 expressed willingness  to  

deposit the passports of his wife and mother, who are respondent  

nos.4 and 5 in this appeal, before the CBI Court. Respondent no.3  

Chander Prakash presumably with the consent and concurrence of  

respondent  nos.4  &  5  volunteered  to  deposit  the  passports  of  

respondent no.4 and 5. Pursuant to the offer made by respondent  

no.3,  vide  order  dated  4.3.2002,  respondent  no.3  was  granted  

permission to go to Hong Kong after depositing the passports of  

respondent nos.4 & 5. They were not aggrieved by the order at  

any point of time because the order was in the nature of a consent  

order rather than strict directions of the court. The order passed by  

the appellant dated 4.3.2002 reads thus:

“ORDER

Case taken up today on the application of Chander Parkash for  

permission to go Hong Kong and for return of his passport. He  

states that he is an NRI and is working in Hong Kong. Keeping  

in  view  the  fact  that  he  had  appeared  in  response  to  the  

summons  issued  by  this  court  and  he  has  expressed  his

willingness to deposit the passports of his wife and his mother  

in the court in order to ensure that he shall not abscond during  

trial,  he  is  permitted  to  go  to  Hong  Kong  subject  to  the  

condition  that  he  shall  remain  present  on  the  next  date  of  

hearing and shall  file an FDR of Rs.one lac today itself.  On  

filing  of  FDR and  passports  of  the  mother  and  wife  of  the  

accused Chander Parkash, his passport  be released to him.  

Accused  Chander  Parkash  has  already  given  his  office  

address  of  the  Hong  Kong  in  the  application.  He  is  also  

directed to give his residential  address in Hong Kong to the  

court.  He shall  deposit  the passport  in  court  on return from  

Hong Kong.

Special Court / New Delhi”

5.  An application dated 10.8.2002 was filed after  more than  

five months of the order dated 4.3.2002 in which respondent nos. 4  

and 5 prayed that their passports be returned on the ground that  

respondent no.5 wanted to get her treatment done by respondent  

no.3 who at that time was in Hong Kong. The CBI opposed the  

application in writing. Vide orders dated 14.8.2002, the application  

was  rejected  by  the  appellant.  It  was  noted  in  the  order  that  

respondent nos.4 & 5 had willingly deposited their passports and,  

therefore, it would not be appropriate to release their passports till  

respondent no.3 (accused Chandra Prakash) returns from abroad  

and seeks fresh permission to go abroad without depositing the  

passports of respondent nos. 4 and 5.  

6.  The  order  dated  4.3.2002  passed  by  the  appellant  was  

challenged by respondent nos.4 & 5 by filing Criminal Misc. (Main)  

No.4200/02  in  Criminal  Misc.  (M)  No.1043/02  before  the  High

Court of Delhi. The High Court vide order dated 9.10.2002 directed  

release of passport  only of  respondent no.4 for a period of  two  

months as respondent no.3 was admitted in the hospital. She was  

directed to return and surrender her passport thereafter. The said  

order is reproduced hereunder:

“IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIM MM 1043/2002

Chander Prakash                ..... Petitioners

     Through Mr. Jatan Singh

Versus

C.B.I.                ..... Respondent

        Through Mr. A. K. Dutt

O R D E R

09.10.2002

CRL M. 4200/2002

The  applicants  are  the  mother  and  wife  of  the  

accused/petitioner.  The  petitioner  has  through  this  petition  

challenged the impugned order dated 4th March, 2002 passed  

by the learned ASJ permitting the accused to go to Hongkong  

subject to the condition that he shall deposit passports of his  

wife and mother and shall deposit an FDR of Rs. One lac and  

after  doing  so  his  passport  shall  be  released  to  him.  After  

complying  with  this  condition  the  petitioner’s  passport  was  

released and he is presently stationed at Hongkong. It is stated  

that there he is admitted in the Hospital and since there is no  

family member to look after him the mother and the wife be  

permitted  to  go  there  and,  therefore,  their  passports  be

released.  It  appears  that  the  condition  of  depositing  the  

passports  of  the  mother  and  the  wife  of  the  accused  was  

imposed in order to ensure and procure the presence of the  

accused on the dates of hearing. However, the record shows  

that  the  accused  has  been  regularly  attending  the  hearing.  

However  Counsel  for  the  petitioner  states  that  he  shall  be  

satisfied if the passport of the wife of the petitioner is released  

facilitating  her  to  go  to  Hongkong  to  care  for  her  husband.  

Since the applicant wife is not an accused nor a surety, the  

request of the counsel for the petitioner appears to be justified.  

Let the passport of the wife of the accused Anjana Batheja be  

released for a period of two months whereafter she will return  

and surrender the passport so as to facilitate the decision of  

the main petition.

Dasti.

Sd/-

Judge, High Court

October 09, 2002.”

7.  It  may  be  pertinent  to  mention  that  Criminal  Misc.  (M)  

No.1043/02 was finally disposed of by the High Court vide order  

dated 20.11.2002 without setting aside or adversely commenting  

on  the  orders  dated  4.3.2002  and  14.8.2002  passed  by  the  

appellant. The High Court did not adversely comment on the order  

because  the  High  Court  did  not  find  anything  erroneous,  

unreasonable or obnoxious in the said order. It is astonishing that  

when the same order of the appellant dated 4.3.2002 again came  

up  for  consideration  on  14.7.2003,  the  High  Court  adversely

commented  on  the  order  of  the  appellant  and  passed  the  

impugned order dated 14.7.2003 which is reproduced as under:

“IN THE HIGH COURT OF DELHI

Crl. M (M) No. 522/2003

Date of Decision: July 14, 2003

Smt. Anjana Batheja & Anr.            ....Petitioner

Through Mr. Jatan Singh, Adv.

Versus

Central Bureau of Investigation.            ... Respondent

                          Through Mr. H.J.S. Ahluwalia, Adv.

1. Whether the reporters of local papers may be allowed to  

see the judgment?

2. To be referred to the report or not?

3. Whether the judgment should be referred in the Digest?

ORAL JUDGMENT

1. Mindboggling situation has arisen in these proceedings. One  

Chander Prakash is facing trial before Sh. V. K. Jain, Special  

Judge  CBI  Court  Delhi  for  the  offences  punishable  under  

Sections  420/467/468/471  read  with  Section  120-B  of  the  

Indian Penal Code and Sections 13(2), 13(1)(d) of Prevention  

of Corruption Act. He is on bail. Since he was on bail, he made  

an application for  release of  his passport  for  going to Hong  

Kong  where  he  has  a  business.  In  order  to  ensure  his  

presence on the dates of hearing, Learned Special Judge has  

passed an order which has overtones of keeping his mother  

and wife as hostages as he has directed the petitioner not only

to deposit their passports but also deposit Rs.1 lac by way of  

F.D.R. if he wants his passport to be released.

2. Forced by circumstances, the petitioner after depositing their  

passports went to Hong Kong where he fell seriously ill. There  

was nobody to look after him at Hong Kong. Consequently, his  

mother  and  wife  moved  an  application  for  releasing  their  

passports  before  the  learned  Special  Judge  but  their  

applications were dismissed vide order dated 4.3.2002 though  

an offer to keep the sister of the accused as another hostage  

was made as they offered to deposit the passport of the sister  

of the accused and also to furnish the bank guarantee.  

3.  Through  this  petition  they  have  challenged  not  only  the  

legality and rationality of the impugned order but its propriety  

and harshness. It  is pertinent to mention here that since the  

release  of  accused,  he  has  been  regularly  attending  court  

proceedings even during brief sojourns to Hong Kong. More so  

his appearance was also exempted till the framing of charges.

4.  Not  only  on  the  face  of  it  but  even  on  the  premise  of  

layman’s understanding condition of releasing the passport of  

the accused subject to deposit of passports of his mother and  

wife and deposit of Rs. One lac by way of F.D.R. appears to be  

highly  irrational,  illegal,  harsh  and  difficult  to  ram down the  

throat as it is unknown to the criminal jurisprudence.

5.  Every  criminal  court  is  a  creature  of  Criminal  Procedure  

Code and as such is neither above it nor can rise above it. The  

court is empowered to impose any kind of condition upon the  

accused to ensure his  presence but  to curtail  or  scuttle  the  

liberty  of  other  members  of  his  family  who  are  in  no  way

connected with the crime is to take away precious fundamental  

right  of  free  movement  of  an  individual  granted  by  the  

Constitution.  This  is  nothing  but  a  medieval  way  of  

administering justice when family members used to be kept as  

hostages in lieu of either release of their detained kith and kin  

or procure the surrender of the wanted man.  

6. Once passport of the accused was released on the condition  

of filing FDR of Rs. 1 lac though the legality of such a condition  

is in serious doubt imposing of any other condition or order for  

depositing the passports of his mother and wife was beyond  

the judicial domain of the court.

7.  if  the  learned Special  Judge was  of  the opinion  that  the  

release of passport to the accused was not safe as he may  

flee from justice, such a request could have been rejected and  

if  allowed any other reasonable kind of condition could have  

been imposed upon him and him alone.

8. The impugned order is wholly illegal, irrational and hits at  

the  foundation  of  fundamental  right  of  a  person  and  

jurisprudential structure and is therefore difficult to sustain and  

has  to  go.  Merely  because  the  accused  had  shown  his  

willingness  to  ensure  his  appearance  on  the  next  date  of  

hearing  by way  of  depositing  the passports  of  his  wife  and  

mother  does not  mean that  the Court  should  also pass the  

order directing him to do an act  for  which the accused had  

neither any legal authority nor any legal right. Every individual  

is independent entity. How can on the statement of an accused  

passports  of  his  family  members  can  be  ordered  to  be  

deposited. To imagine this is beyond comprehension.

9. Without tarrying further on this aspect and concept of liberty  

and freedom of movement of the citizens, I feel persuaded to  

set aside the impugned order which cannot stand even prima  

facie judicial scrutiny.

10. In the result the petition is allowed. The impugned order is  

hereby set aside. Passport of the petitioners, if deposited, shall  

be released to them forthwith.

11. For guidance, copy of this order be sent to all the judicial  

officers.

July 14, 2003

Sd/-

Judge”

8.  The  appellant  submitted  that  the  order  dated  4.3.2002  

passed  by him stood  merged  in  the  order  of  the  Hon’ble  High  

Court dated 9.10.2002. It is settled proposition of law, reiterated in  

Kunhayammed & Others vs. State of Kerala and another (2000) 6  

SCC  359,  Commissioner  of  Income  Tax,  Bombay  v.  Amrit  Lal   

Bhogi Lal & Co., AIR 1958 SC 868 and Gojer Brothers (Pvt.) Ltd.   

v.  Ratan Lal  Singh  (1974) 2 SCC 453 that once the order of  a  

lower court has been challenged before a superior forum and has  

been reviewed, modified or affirmed, it is the order of the superior  

forum, which alone subsists and is operative. Therefore, it was not  

permissible for the petitioner to review or modify the order dated  

4.3.2002.

9.  The  appellant  is  aggrieved  by the  following observations  

made by the High Court in its impugned order dated 14.7.2003:

“1. Mindboggling situation has arisen in these proceedings…  

…. In order to ensure his presence on the date of  hearing,  

learned  Special  Judge  has  passed  an  order  which  has  

overtones of keeping his mother and wife as hostages…..

4.  Not  only  on  the  face  of  it  but  even  on  the  premise  of  

layman’s understanding condition of releasing the passport of  

accused subject to deposit of passports of his mother and wife  

and deposit of Rs.one lac by way of FDR appears to be highly  

irrational, illegal, harsh and difficult to ram down the throat as it  

is unknown to the criminal jurisprudence.

5.  ….  This  is  nothing  but  a  medieval  way  of  administering  

justice when family members used to be kept as hostages in  

lieu of either release of their detained kith and kin or procure  

the surrender of the wanted man.

8. The impugned order is wholly illegal, irrational and hits at  

the  foundation  of  fundamental  right  of  a  person  and  

jurisprudential structure.”

10.  The  order  dated  14.07.2003  was  circulated  to  all  the  

judicial  officers  and widely  reported in  the newspapers.  The  

appellant was projected as an incompetent judicial officer who  

had no knowledge of even basic laws and jurisprudence and  

who had no regards of the fundamental rights of the citizens.  

According  to  the  impugned  order,  the  appellant  was  

administering justice in the medieval way and in an arbitrary  

manner.  

11.  Mr.  T.R.  Andhyarujina,  learned senior  advocate and Mr.  

Prashant Bhushan, learned advocate appearing on behalf of the  

appellant  submitted that  the appellant  has seriously suffered on

account of the Hon’ble Judge of High Court of Delhi who passed  

the  impugned  observations  and  remarks,  taking  on  record  an  

erroneous  statement  of  facts  regarding  the  working  of  the  

appellant as a Special Judge while deciding the Criminal Misc. (M)  

No.3686/02, 3687/02 and 3688/02 titled  P. Dass Gupta v. State  

(through CBI) vide order dated 13.11.2002. In para 4 of the order  

dated 13.11.2002, the learned Judge of the High Court noted:  

“Learned senior counsel for the petitioner states at the Bar that  

this  particular  Special  Judge has not  granted bail  to  any of  

such accused who has appeared at the time of filing of challan  

by CBI in spite of the fact that CBI did not take such accused  

into custody.”

12. Learned counsel appearing for the appellant submitted that  

though  grant  or  refusal  of  bail  is  of  no  consequence,  but  the  

correct  factual  position was that  till  the date of  the order  dated  

13.11.2002 passed by the High Court, 30 accused charge-sheeted  

by  the  CBI  were  granted  bail  whereas  18  such  accused  were  

refused bail by the appellant. Thereafter, erroneous statement of  

facts was recorded by the High Court without any verification and  

without calling for any information, record or comments from the  

appellant. The appellant is seriously aggrieved by the unmerited,  

unjustified and unwarranted remarks passed by the learned Judge  

of the High Court.  Learned counsel submitted that the appellant  

submitted  that  he  passed  the  order  dated  04.3.2002  because  

respondent  no.3  expressed  his  willingness  to  deposit  the  

passports  of  his  wife  and mother,  respondent  nos.4  & 5 in  the  

court presumably with their consent and concurrence. The order  

was almost in the form of a consent order.

13. Mr.  Andhyarujina,  learned counsel for  the appellant  also  

submitted that the High Court has been passing similar orders for  

a  long time and as  a  Subordinate  Judicial  Officer  he was duty  

bound to follow the same.  

14.  The  learned  counsel  for  the  appellant,  in  order  to  

strengthen his argument, gave reference to the orders passed by a  

Division Bench of the High Court in CW No.118 and CM No.225 of  

1983 on 20th January, 1983. The relevant part of the said order is  

reproduced as under:

“ORDER

20.1.83 Present:Mr. Soli J. Sorabjee, Senior  

Advocate, with Mr. Harish Salve for the  

petitioner.

Mr. D. P. Wadhwa for the respondents.

C.W. 118 and C.M. 225 of 1983

1. Mr. Wadhwa prays for time to file answer to show cause and  

reply  to  the  application.  The same may be  filed  within  four  

weeks with copy to counsel for the petitioner. Rejoinder, if any,  

within two seeks thereafter. Case for March 11, 1983.

2.  Pending  final  determination  of  the  matter,  we  order  that  

without prejudice to the contentions raised by the petitioner or  

the  contentions  that  may  be  raised  by  the  respondents,  

petitioner be permitted to visit the United States of America so  

as to return to India on or before March 2, 1983 subject to his  

fulfilling the conditions that we se hereafter.  

3.  Petitioner  shall  before  leaving  India,  in  additional  to  the  

bonds  already  given  in  the  sum  of  Rs.1,00,000  with  two

sureties,  give  additional  security  for  Rs.2,00,000  to  the  

satisfaction of the Joint Registrar of this Court. The said surety  

bond  will  be  in  favour  of  the  Directorate  of  Enforcement.  

Petitioner will give an undertaking to this Court by an affidavit  

that  he  would  appear  before  the  Enforcement  Officer,  New  

Delhi to 10 1.m. on March 7, 1983.

4. The petitioner shall also before leaving India file photo copy  

of his current passport duly certified by him as true copy with  

the Enforcement Directorate. Photo copies may be prepared  

by the Directorate at petitioner’s cost.  

5.  Petitioner  on March 7,  1983 produce in  the Enforcement  

Directorate transcript of his bank account or accounts in United  

States of America from the period January 1, 1978 till  three  

days before his departure from America.

6. Petitioner will cause the current passport of his wife and his  

child to be deposited with the Registrar of this Court along with  

an undertaking on affidavit by his wife to this court that in case  

the petitioner does not return to India on or about March 2,  

1983 and does not appear before the Enforcement Officer on  

March 7, 1983, the petitioner’s wife will surrender herself to the  

Enforcement Officer for being detained in civil prison till such  

time as the petitioner comes and surrenders himself.

7.  On return of  the petitioner to Delhi  and on his appearing  

before the Enforcement Officer, the petitioner will  deposit his  

passport with the Enforcement Officer. The additional sureties  

of Rs.2 lakhs each will then stand discharged. The passport of  

the wife of the petitioner shall  forthwith be returned on such

appearance and the undertaking of the wife of the petitioner  

would then stand discharged.

8. We are told that petitioner’s child does not have a passport  

nor any endorsement with regard to his child is made either on  

the petitioner’s passport or on the passport of his wife. On this  

aspect  petitioner will  file  an affidavit  in  this  court  along with  

other papers which he has directed to file.

9. The matter may be placed before the Joint Registrar (J) on  

January 21, 1983 for complying with this order. True copies of  

this  order  may  be  given  both  to  the  petitioner  and  to  Mr.  

Wadhwa.

Sd/-

CHIEF JUSTICE

Sd/-

B.N. KIRPAL, J.

January 20, 1983.”

15.  The  High  Court  of  Delhi  in  Criminal  M.  (M)  NO.  50/98  

2.2.1998 passed the following order in similar terms:

“ ORDER

Present: Ms Geeta Luthra with

Mr. P. K. Dubey for petitioner.

Ms. Mukta Gupta for the State.

Crl. M (M) NO. 50/98

This petition is for permission to go abroad for business  

purposes. The latest itinerary filed by the petitioner along with  

the application dated 13.1.1998,  has become infructuous as  

the  departure  date  from  Delhi  was  20th  January,  1998.

Learned  counsel  for  the  petitioner  says  that  in  case  the  

permission is granted, a revised itinerary will be supplied to the  

State. However, the period of remaining abroad would not be  

more than two months.

Heard the learned counsel for the parties.

Learned  counsel  for  the  respondent  says  that  

investigation is almost complete and the challan would be filed  

and, in these circumstances, joining of the investigation may  

not be necessary by the petitioner but in case permission to go  

abroad is granted to the petitioner, it has to be ensured that he  

comes back and faces the trial. For that it has been suggested  

that a bank guarantee of rupees one lac may be given and the  

places of stay abroad may be given.

In view of the facts and circumstances of the case, the  

petitioner is allowed to go abroad on the following conditions:

1.  He  shall  furnish  a  bank  guarantee  of  rupees  fifty  

thousand;

2. One surety of rupees twenty five thousand;

3. Personal bond of rupees twenty five thousand;

4. The petitioner shall give the revised itinerary which will  

not be for more than two months;

5. Before starting the journey, the petitioner shall give the  

copy of itinerary to I.O. SI Dinesh Kumar and file a copy of the  

same in court;

6. In case the petitioner can give the addresses where the  

petitioner would be staying abroad, that shall also be given to  

IO in advance;

7. Petitioner shall deposit passport of his wife Ms. Perwaiz  

Johan and passport of his eldest daughter Jauvier Nayyar with  

the concerned court of Magistrate.

The Bank guarantee,  the personal bond and the surety  

will be to the satisfaction of the conerned court of Magistrate.  

The passport of the petitioner will be released to him for going  

abroad  on  terms  ordered  above  and  the  same  shall  be  

deposited  after  the  journey  abroad  with  the  concerned  

Magistrate.

Dasti to counsel for both parties.

The main petition and all pending Crl. Ms. are disposed  

of.

February 02, 1998

Sd/-

A.K. Srivastava,

Judge”

16.  The  appellant  being  a  subordinate  judge  of  the  Delhi  

Higher Judicial Service was duty bound to follow these orders and  

while passing the order dated 4.3.2002 he followed the pattern of  

the orders delivered by the Delhi High Court.  

17.  Learned  counsel  further  submitted  that  the  High  Court  

even after the impugned order dated 14.7.2003 passed the similar  

order dated 31.3.2006, which reads as under:

“IN THE HIGH COURT OF DELHI AT NEW DELHI

31.03.2006

Present:  Mr.  Rajiv  Nayar,  Sr.Advocate  with  Mr.  R.  N.  

Karanjawala,

Mr. Viraj Datar, Sandeep Mittal and Mr. Sarvesh Singh for the  

appellant with appellant in person.

Ms. Mukta Gupta with Mr. Rajat Katyal for the State.

LPA No. 530/2006 and CM No. 4816/2006

This is an appeal preferred by the appellant Bina K. Ramani  

from  the  order  dated  24.03.2006  and  29.03.2006  of  the  

learned  Single  Judge,  whereby  he  declined  to  pass  an  

immediate  order  enabling  the  petitioner  to  travel  abroad.  

Learned Single  Judge held  that  in  the circumstances,  there  

was need to investigate the matter and permission could not  

be  granted  without  affording  a  reasonable  opportunity  of  

hearing to the respondent. The matter was posted for 5th April,  

2006. Appellant moved another application, which was listed  

on 29.03.2006. The said application was also ordered to be  

posted to 5.4.2006 on account of non-availability of the Senior  

Counsel.  

Appellant has assailed both these orders in appeal. Appellant's  

daughter  Malini  Ramani  and  Mr.  George  Mailhot  were  the  

petitioners in the writ petition, wherein lookout notices issued  

were challenged. Interim application was moved on the plea  

that  wedding of  the appellant's  niece,  i.e.,  her  real  brother's  

daughter,  was  scheduled  for  31.03.2006.  Permission  was  

sought to travel abroad. The appellant wishes to leave on the  

intervening night of 24th and 25th March, 2006 to attend the  

celebrations  commencing  from  29th  March,  2006.  The  

appellant, Mr. George Mailhot and her daughter, petitioners in  

the  writ  petition,  wanted  to  join  in  earlier  for  the  marriage  

preparations.  It  is  submitted  that  posting  the  application  to

5.4.2006, when all the functions would be over, rendered the  

appellant's prayer and application infructuous. Learned Senior  

Counsel for the appellant submits that the appellant, till date, is  

not accused of any offence. Rather, she was a witness whose  

evidence  had  been  material  for  the  State.  Further,  the  

appellant had fully cooperated with the State in prosecution of  

the Jessica Lal  murder  case.  Learned counsel  also submits  

that  no  statutory  order  under  the  Foreigners  Act  has  been  

passed, prohibiting the travel or departure of the appellant.

Ms. Mukta Gupta, learned counsel for the State, opposes the  

prayer for permission to travel abroad. She submits that the  

appellant is a British

Passport holder and a foreign national. She submits

that recently, FIR No.120/2006 dated 6th March, 2006 under  

Sections 120-B/201/218/34 IPC has been registered at  P.S.  

Mehrauli,  with  regard  to  destruction  of  evidence  against  

unnamed  persons.  She  submits  that  the  appellant  and  her  

daughter Malini Ramani and Mr. George Mailhot are suspects  

in the said FIR as she claims that the scene of occurrence was  

tampered with and the blood stains had been washed away.  

On the question of permission being granted to go abroad, she  

submits  that  the  correspondence  attached  by  the  appellant  

does  not  inspire  confidence  or  conclusively  show  the  

relationship of the appellant. The functions scheduled for 29th,  

30th  and  31st  March,  2006,  i.e.,  the  main  functions  for  the  

wedding,  

are/would be over and there would be no fruitful  purpose in  

considering grant of permission at this stage.

She further states that when the appellant, her daughter  

Malini  Ramani  and  Mr.George  Mailhot  were  called  for  

investigation, they did not cooperate and their participation was  

an  eye  wash  and  ineffective  answers  were  given.  It  is  

submitted before us that the appellant is required to join in for  

investigations on 4th April, 2006, to give the remaining replies  

to the notices.

Learned  counsel  for  the  appellant  submits  that  the  

appellant  along  with  Mr.George  Mailhot  and  her  daughter  

Malini Ramani have been staying in India for over two decades  

and have properties and roots in India. From 1999 onwards,  

the appellant has travelled numerous times. To re-assure the  

court regarding the presence and availability of the appellant,  

Mr.  George  Mailhot  and  her  daughter  Malini  would  deposit  

their passport with the Investigating Officer Mr. M.K. Sharma,  

ACP. Besides, the appellant undertakes to the court that she  

will return by 3rd/4th April, 2006 and will be available for joining  

investigations on 4th April,  2006 and would duly furnish the  

replies of the notices without seeking further extension in this  

regard.  Learned  counsel  for  the  appellant  submits  that  the  

appellant would deposit today itself, a demand draft in the sum  

of Rs.5 lacs favouring the Registrar General of the High Court  

of Delhi as security for her due compliance with the aforesaid  

undertakings.

We prima facie find that the appellant has been staying in  

India  for  a  number  of  years.  She  has  travelled  abroad  a  

number of times as is revealed from her Passport. While the  

appellant  has  missed  out  the  main  wedding  and  some

functions of  her  niece,  learned Senior  Counsel  submits  that  

she would be able to attend the function of 'Reception Dinner'  

on Saturday at 8.00 p.m.

Considering  the  above  circumstances,  we  permit  the  

appellant to proceed to Phuket, Thailand on compliance with  

the above terms and conditions as set out. She would return  

on the intervening night of 3rd and 4th April, 2006. The State  

would also ensure that no obstruction is caused, on account of  

the lookout notices, in her travelling to Phuket.

We make it clear that any observation made in this order  

shall not be taken as expression of any opinion on the subject  

matter of the validity of the lookout notices, which is pending in  

the writ petition before the learned Single Judge, who would  

decide  the  same  uninfluenced  by  any  observation  made  

herein.  The appeal  and application stand disposed in above  

terms.

Copy of this order be given dasti to counsel for both the  

parties under the signatures of Court Master.

Manmohan Sarin, J

Manju Goel, J

March 31, 2006.”

18. Learned counsel for the appellant submitted that the order  

dated 04.3.2002 earlier came before the same Hon’ble Judge and  

he  did  not  find  the  same  objectionable  or  unreasonable  and  

passed the order dated 9.10.2002.  

19. The order dated 4.3.2002 again came for consideration by  

the same learned Judge of  the High Court,  this time,  for  totally

unjustifiable reason, the court passed unmerited remarks and the  

observations against the appellant. The impugned order passed by  

the High Court is against all the norms and settled legal position.  

He also submitted that as a Subordinate Judge, the appellant was  

duty bound to follow the earlier order passed by the Division Bench  

and the Single Bench of the Delhi High Court.  

20. Mr. Andhyarujina also submitted that the learned Judge of  

the  High  Court  ought  to  have  viewed  the  entire  order  in  right  

perspective that  the order was passed on the request  made on  

behalf  of  respondent  no.3  who  volunteered  to  deposit  the  

passports  of  respondent  nos.4&5 presumably with  their  consent  

and concurrence. In this view of the matter, the appellant cannot  

be faulted for passing the order dated 04.3.2002.

21.  Mr.  Andhyarujina  further  argued  that  assuming  that  the  

order passed by the appellant was wrong or erroneous, even then  

the learned Judge of the High Court ought to have set aside or  

modified  the  order  but  he  was  not  justified  in  passing  totally  

unmerited  and  undeserved  strictures  and  remarks  against  the  

appellant.  

22. In Kashi Nath Roy v. State of Bihar (1996) 4 SCC 539, this  

court had an occasion to deal with a similar matter of expunging of  

adverse remarks observed thus:

“7. It  cannot be forgotten that in our system, like elsewhere,  

appellate and revisional Courts have been set up on the pre-

supposition that lower Courts would in some measure of cases  

go wrong in decision-making, both on facts as also on law, and  

they have been knit-up to  correct  those orders.  The human  

element in justicing being an important element, computer-like

functioning cannot be expected of the Courts; however, hard  

they  may  try  ad  keep  themselves  precedent-trodden  in  the  

scope of discretions and in the manner of judging. Whenever  

any such intolerable error is detected by or pointed out to a  

superior Court,  it  is functionally required to correct that error  

that  may,  here  and there,  in  an appropriate  case,  and in  a  

manner  befitting,  maintaining  the  dignity  of  the  Court  and  

independence of judiciary, convey its message in its judgment  

to  the  officer  concerned  through  a  process  of  reasoning,  

essentially  persuasive,  reasonable,  mellow  but  clear,  and  

result-orienting, but rarely as a rebuke. Sharp reaction of the  

kind  exhibited  in  the  afore-extraction  is  not  in  keeping  with  

institutional functioning. The premise that a Judge committed a  

mistake or an error beyond the limits of tolerance, is no ground  

to inflict condemnation on the Judge-Subordinate, unless there  

existed something else and for exceptional grounds.”

23. Lord Denning in his celebrated book “The Due Process of  

Law”  has observed the  importance  of  independence for  judicial  

officers in the following words:

“Every judge of the courts of this land – from the highest  

to the lowest – should be protected to the same degree, and  

liable  to  the  same  degree.  If  the  reason  underlying  this  

immunity is to ensure “that they may be free in thought and  

independent in judgment”, it applies to every judge, whatever  

his rank. Each should be protected from liability to damages  

when he is acting judicially. Each should be able to do his work  

in complete independence and free from fear. He should not  

have  to  turn  the  pages  of  his  books  with  trembling  fingers,

asking himself: “If I do this, shall I be liable in damages?” So  

long as he does his work in the honest belief that it is within his  

jurisdiction,  then  he  is  not  liable  to  an  action.  He  may  be  

mistaken in fact.  He may be ignorant  in law. What he does  

may be outside his jurisdiction – in fact or in law – but so long  

as  he  honestly  believes  it  to  be  within  his  jurisdiction,  he  

should not  be liable.  Once he honestly  entertains this belief  

nothing else will make him liable. He is not to be plagued with  

allegations of malice or ill-will or bias or anything of the kind.  

Actions based on such allegations have been struck out and  

will  continue  to  be  struck  out.  Nothing  will  make  him liable  

except it to be shown that he was not acting judicially, knowing  

that he had no jurisdiction to do it.”

24. In Braj Kishore Thakur v. Union of India & Others (1997) 4  

SCC 65, this court again dealt with a case of expunging of adverse  

remarks. The court observed thus:

“11. No greater damage can be caused to the administration of  

justice and to the confidence 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. It  

is  well  to  remember  that  a  Judicial  Officer  against  whom  

aspersions are made in the judgment could not appear before  

the higher Court to defend his order. Judges of higher Courts  

must,  therefore,  exercise greater  judicial  restraint  and adopt  

greater care when they are tempted to employ strong terms  

against lower judiciary.”

25.  Sulaiman  J.  in  Panchanan  Banerji  v.  Upendra  Nath  

Bhattacharji [(1926) I.L.R. 49 All. 254, 256.] : (AIR 1927 All 193 at  

p.193) holds that section 561A of the Code of Criminal Procedure,  

which was added in 1923, confers such a power and he does not  

see any reason why such an inherent power should not comprise a  

power to order a deletion of passages which are either irrelevant or  

inadmissible and which adversely affect the character of persons  

before the Court.

26. In the matter of  H. Daly, AIR 1928 Lah 740 at page 742  

Tek Chand, J. observed as under:-

"It is of the utmost importance to the administration of justice  

that Courts should be allowed to perform their functions freely  

and fearlessly and without undue interference by this Court."  

27. Chagla,  C.J. in State v. Nilkanth Shripad AIR 1954 Bom.  

65 observed as under:-

"It is very necessary, in order to maintain the independence of  

the judiciary, that every Magistrate, however junior, should feel  

that he can fearlessly give expression to his own opinion in the  

judgment which he delivers. If  our Magistrates feel that they  

cannot  frankly  and  fearlessly  deal  with  matters  that  come  

before them and that the High Court is likely to interfere with  

their  opinions,  the  independence  of  the  judiciary  might  be  

seriously undermined.  

This Court further observed:

“that every judicial officer must be free to express his mind  

in the matter of the appreciation of evidence before him. The  

phraseology  used  by  a  particular  Judge  depends  upon  his

inherent  reaction to falsehood,  his comparative command of  

the English language and his felicity of expression. There is  

nothing more deleterious to the discharge of judicial functions  

than to create in the mind of a Judge that he should conform to  

a particular pattern which may, or may not be, to the liking of  

the  appellate  Court.  Sometimes he may overstep  the mark.  

When public  interests conflict,  the lesser should yield to the  

larger one. An unmerited and undeserved insult to a witness  

may have to be tolerated in the general interests of preserving  

the independence of the judiciary. Even so, a duty is cast upon  

the judicial officer not to deflect himself from the even course  

of justice by making disparaging and undeserving remarks on  

persons  that  appear  before  him  as  witnesses  or  otherwise.  

Moderation in expression lends dignity to his office and imparts  

greater respect for judiciary. But occasions do arise when a  

particular Judge, without any justification, may cast aspersions  

on a witness or any other person not before him affecting the  

character of such witness or person. Such remarks may affect  

the  reputation  or  even  the  career  of  such  person.  In  my  

experience I find such cases are very rare. But if it happens, I  

agree with the Full Bench of the Bombay High Court that the  

appellate Court  in  a suitable case may judicially  correct  the  

observations  of  the  lower  Court  by  pointing  out  that  the  

observations  made by that  Court  were not  justified  or  were  

without  any foundation were wholly wrong or  improper.  This  

can be done under its inherent power preserved under s. 561-

A of the Code of Criminal Procedure. But that power must be  

exercised only in exceptional cases where the interest of the  

Party concerned would irrevocably suffer.”

28. In the famous case of  L. Banwanri Lal v.  Kundan Cloth  

Mills  Ltd.,  AIR  1937  Lahore  527,  Skemp,  J.,  more  than  eight  

decades ago, observed that reflections on the conduct of the party  

should also be in sober language. The Court observed as under ;  

"In  may be necessary  for  a  Judge or  a  Magistrate  to  pass  

reflections  upon  the  conduct  or  honesty  of  a  party  or  the  

truthfulness of a witness; when this is necessary that should be  

done in sober and becoming language.

29. In  Dr. Raghubir Saran v. State of Bihar & Anr. AIR 1964  

p.1, this court while approving the judgment in AIR 1954 Bom 65 at  

p.66 (FB) (supra), the court observed :-

“Whatever  maybe  the  degree  of  impact,  the  result  of  

expunging remarks from a judgment is that it derogates from  

its finality. A judgment of a lower Court may be wrong; it may  

even be perverse. The proper way to attach that judgment is  

by  bringing  it  under  the  scrutiny  of  the  superior  Court  and  

getting  the  judgment  of  the  lower  Court  judicially  corrected.  

The inherent power that the High Court possesses is, in proper  

cases, even though on appeal or revision maybe preferred to  

the  High  Court,  to  judicially  correct  the  observations  of  the  

lower Court by pointing out that the observations made by the  

Magistrate were not justified or were without any foundation or  

were wholly wrong or improper. The contrary view infringes the  

fundamental principles of jurisprudence that a judgment made  

by a Court, however inferior it may be in the hierarchy, is final  

and it can only be modified in the manner prescribed by the  

law governing such procedure.

In this judgment the court further observed :-

“Every judicial officer must be free to express his mind in the  

matter  of  the  appreciation  of  evidence  before  him.  The  

phraseology  used  by  a  particular  judge  depends  upon  his  

inherent  reaction to falsehood,  his comparative command of  

the English language and his felicity of expression.

30. In  Anjani K. Verma v. State of Bihar and Anr.  (2004) 11  

SCC 188, the court observed as under:-

“….at  the  same  time,  while  passing  strictures  against  a  

member of the subordinate judiciary utmost care and caution is  

required  to  be  taken,  also  having  regard  to  the  stress  and  

conditions under which, by and large, the judicial officers have  

to render justice.”

31. In A.M. Mathur v. Pramod Kumar Gupta & Ors. AIR 1990  

SC 1737 this court has held as under:-

“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 co-ordinate 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. “

32.  In  the  said  decision,  this  court  has  also  observed  that  

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.  The  Court  further  observed  that  

concededly the Court has the inherent power to act freely upon its  

own conviction on any matter coming before it 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.

33. In the said case, this court while quoting Justice Cardozo  

and Justice Frankfurter 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 the constant theme of the  

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.”

34. In yet another case of similar nature, this court in the case  

of  Niranjan Patnaik v. Sashibhusan Kar and Anr., AIR 1986 SC  

819 again reminded that the higher the forum and greater the need  

for restraint and the more mellowed the reproach should be. The  

court  again  reiterated  the  settled  law that  harsh  or  disparaging  

remarks are not to be made against persons and authorities whose  

conduct comes into consideration before Courts of law unless it is

really necessary for the decision of the case, as an integral part  

thereof to animadvert on that conduct.

35. In Samya Sett v. Shambhu Sarkar and Anr. (2005) 6 SCC  

767 at 773, this court observed as under:-

“In  Alok Kumar Roy v. Dr. S.N. Sarma AIR 1968 SC 453 the  

vacation  Judge  of  the  High  Court  of  Assam and  Nagaland  

passed  an  interim  order  during  vacation  in  a  petition  

entertainable  by  the  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, Wanchoo, C.J., observed: (SCR pp. 819 F-

820 A):-

“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  

with 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  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.”

In Samya Sett (supra), the court further observed:-

“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 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.”

36. 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.”

(emphasis supplied)

37. 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.”

38. The learned counsel placed reliance on the judgment of  

this Court in Ishwari Prasad Misra v. Mohammad Isa (1963) 3 SCR  

722.  In  this  judgment,  this  court  made  some  observations  

regarding  approach  adopted  by  the  High  Court  in  passing  the  

remarks and comments about a judicial officer:  

“27. Before we part with this appeal, it  is necessary that we  

should make some observations about the approach adopted  

by the High Court  in dealing with the judgment of  the court  

which was in appeal before it. In several places the High Court  

has passed severe strictures against the trial Court and has, in  

substance, suggested that the decision of the trial Court was  

not  only  perverse  but  was  based  on  extraneous  

considerations. It  has observed that the mind of the learned  

Subordinate Judge was already loaded with bias in favour of  

the plaintiff an that the plaintiff had calculated that such of the  

evidence as he would produce "long with the pull and weight  

that  would be harnessed from behind would  be sufficient  to  

carry  him through."  Similarly,  in  criticising  the  trial  Court  for  

accepting the evidence of Jamuna Singh, the High Court has  

observed that  the  presumption  made by the  trial  Court  that  

teacher, as a rule, is a respectable person, "is not any legal

appreciation  of  the  evidence  but  a  way  found  to  suit  the  

convenience of the court for holding in favour of the plaintiff." It  

would thus be seen that in reversing the decision of the trial  

Court, the High Court has suggested that the trial Court, was  

persuaded by extraneous considerations and that  some pull  

and  weight  had  been,  used  in  favour  of  the  appellant  from  

behind. “

This Court observed:

“We are constrained to observe that the High Court was  

not justified in passing these strictures against the trial Judge  

in  dealing  with  the present  case.  Judicial  experience shows  

that in adjudicating upon the rival  claims brought before the  

courts  it  is  not  always  easy  to  decide  where  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 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 reached.  But it  would be unsafe to  

overlook the fact that all  judicial minds may not react in the  

same  way  to  the  said  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 should 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.”

This Court further observed that:

“In the present case, the High Court has used intemperate  

language and has even gone to  the length of  suggesting a  

corrupt  motive  against  the  Judge  who  decided  the  suit  in  

favour  of  the  appellant.  In  our  opinion,  the  use  of  such  

intemperate language may, in some cases, tend to show either  

a  lack  of  experience  in  judicial  matters  or  an  absence  of  

Judicial poise and balance. We have carefully considered all  

the evidence to which our attention was drawn by the learned  

counsel  on  both  the  sides  and  we  are  satisfied  that  the  

imputations  made by the  High Court  against  the impartiality  

and the objectivity of the approach adopted by the trial Judge  

are wholly unjustified. It is very much to be regretted that the  

High  Court  should  have  persuaded  itself  to  use  such  

extravagant language in criticising the trial  Court,  particularly  

when our conclusion in the present appeal shows that the trial  

Court was right and the High Court was wrong. But even if we  

had not upheld the findings of  the trial  Court,  we would not

have approved of the unbalanced criticism made by the High  

Court against the trial Court.”  

39.  In  another  case,  this  Court  deprecated  the  practice  of  

passing  stricture  against  subordinate  judicial  officer.  In  State  of  

M.P. & Others v. Nandlal Jaiswal & Others (1986) 4 SCC 566, the  

Chief  Justice  P.N.  Bhagwati  (as  he  then  was)  observed  that  

Judges  should  not  use  strong  and  carping  language  while  

criticising the conduct of parties or their witnesses. They must act  

with  sobriety,  moderation  and  restraint.  They  must  have  the  

humility to recognise 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. Chief Justice Bhagwati further  

observed  that  sweeping  observations  attributing  mala  fides,  

corruption and underhand dealing to the State Government made  

by the High Court  Judge were unwarranted and not justified on  

record.

40. In  K.P. Tiwari v. State of M.P. 1994 Supp. (1) SCC 540,  

this  court  while  dealing  with  a  similar  matter  of  expunging  of  

remarks observed thus:

“4. We are, however, impelled to remind the learned Judge of  

the High Court that however anguished he might have been  

over the unmerited bail granted to the accused, he should not  

have allowed himself the latitude of ignoring judicial precaution  

and propriety even momentarily. 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. That  

is one of the functions of the superior courts. Our legal system

acknowledges the fallibility of the judges and hence provides  

for appeals and revisions. 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 up to 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 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 and  be done  to  the  

administration of justice and to the confidence of the people in  

the judiciary can 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 attributing motives  

to them is certainly not one of them. That is the surest way to  

take the judiciary downhill.”

41. It is the obligation and duty of the higher courts to modify or  

set aside orders which are contrary to law or the facts of the case.  

This is one of the most important functions of the superior courts.  

Our  legal  system acknowledges the  fallibility  of  the  judges and  

provides for appeals and revisions. Judges of the superior courts  

while discharging their duty ought to be extremely careful before  

passing  imputations,  strictures  and remarks  against  subordinate  

judicial officers.

42. A three-Judge Bench of this court again dealt with a similar  

issue In re: ‘K’ A Judicial Officer (2001) 3 SCC 54. In this case, the  

court passed a comprehensive order which reads thus:

“15. In  the  case  at  hand  we  are  concerned  with  the  observations made by the High Court against a judicial officer  

who is a serving member of subordinate judiciary. Under the  

constitutional scheme control over the district courts and courts

subordinate thereto has been vested in the High Courts. The  

control  so  vested  is  administrative,  judicial  and  disciplinary.  

The role  of  High  Court  is  also  of  a  friend,  philosopher  and  

guide of judiciary subordinate to it. The strength of power is not  

displayed  solely  in  cracking  a  whip  on  errors,  mistakes  or  

failures; the power should be so wielded as to have propensity  

to prevent and to ensure exclusion of repetition if  committed  

once innocently  or  unwittingly.  “Pardon the error  but  not  its  

repetition”. The power to control is not to be exercised solely  

by  wielding  a  teacher’s  cane;  the  members  of  subordinate  

judiciary look up to the High Court for the power to control to  

be exercised with parent-like care and affection.”

This Court further observed that:  

“The  exercise  of  statutory  jurisdiction,  appellate  or  

revisional and the exercise of constitutional  power to control  

and supervise the functioning of the district courts and courts  

subordinate thereto empowers the High Court to formulate an  

opinion and place it on record not only on the judicial working  

but also on the conduct of the judicial officers. The existence of  

power  in  higher  echelons  of  judiciary  to  make  observations  

even  extending  to  criticism  incorporated  in  judicial  orders  

cannot be denied, however, the High Courts have to remember  

that criticisms and observations touching a subordinate judicial  

officer incorporated in judicial pronouncements have their own  

mischievous  infirmities.  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 a 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. May be for the  

purpose of pleading his cause he has to take the assistance of  

a  legal  practitioner  and  such  legal  practitioner  may be  one  

practising  before  him.  Look  at  the  embarrassment  involved.  

And last but not the least, the possibility of a single or casual  

aberration of an otherwise honest, upright and righteous Judge  

being  caught  unawares  in  the  net  of  adverse  observations  

cannot be ruled out. Such an incident would have a seriously

demoralising effect not only on him but also on his colleagues.  

If all this is avoidable why should it not be avoided?”

43. The remarks made against a judicial officer are so grave  

that even if they are expunged would not completely restitute and  

restore  the  harmed  Judge  from the  loss  of  dignity  and  honour  

suffered  by  him.  In  re:  ‘K’  A  Judicial  Officer (supra),  the  court  

further observed:

17. The remarks made in a judicial  order of  the High Court  against a member of subordinate judiciary even if  expunged  

would not completely restitute and restore the harmed Judge  

from the loss of dignity and honour suffered by him. In Judges  

by David Pannick  (Oxford University Press Publication, 1987)  

a  wholesome  practise  finds  a  mention  suggesting  an  

appropriate course to be followed in such situations:

“Lord  Hailsham  explained  that  in  a  number  of  cases,  

although I seldom told the complainant that I had done  

so,  I  showed the complaint  to  the Judge concerned.  I  

thought it good for him both to see what was being said  

about  him  from  the  other  side  of  the  court,  and  how  

perhaps a lapse of manners or a momentary impatience  

could undermine confidence in his decision.”

44. Chief Justice K. G. Balakrishnan in a three-Judge Bench of  

this Court in  Ramesh Chander Singh v. High Court of Allahabad  

and Anr. (2007) 4 SCC 247 observed as under:-

“The higher court should convey its message in the judgment  

to  the  officer  concerned  through  a  process  of  reasoning,  

essentially  persuasive,  reasonable,  mellowed  but  clear  and  

result oriented and rarely a rebuke.”

45. Mr.  Andhyarujina lastly  submitted that  the strictures and  

remarks passed against the appellant be expunged.

46. Mr. A. Mariarputham, learned advocate appearing for the  

High Court  of  Delhi  submitted that the appellant  is a very good  

judicial  officer  in  the  Delhi  High  Judicial  Service.  He  enjoys  

excellent reputation of ability and integrity. Mr. Mariarputham also  

submitted that he has been consistently getting outstanding (A+) in  

ACRs.  

47.  Mr.  Mariarputham  could  not  justify  the  remarks  made  

against the appellant and submitted that this Court may pass an  

appropriate order.

48.  We  have  heard  the  learned  counsel  for  the  parties  at  

length and have carefully perused the records.  

49.  In  the  light  of  law which  has  been followed for  several  

decades,  remarks,  imputations  and  strictures  passed  by  the  

learned Single  Judge of  the  High Court  in  this  case are  totally  

unjustified,  unwarranted  and  unnecessary  for  the  following  

reasons:

(a) The  appellant  has  passed  the  order  dated  04.3.2002  

because  respondent  no.3  expressed  willingness  to  

deposit the passports of his wife and mother, respondent  

nos. 4 and 5 in the court presumably with their consent  

and  concurrence.  It  may  be  pertinent  to  observe  that  

none of them made any grievance about the said order.  

Respondent nos. 4 and 5 sought modification only when  

they wanted  to  travel  after  five months of  passing the  

order.

(b) The appellant has followed the previous orders passed  

by different Benches of the High Court. As a Subordinate  

Judge,  he was duty  bound to  follow the orders  of  the  

High  Court.  There  was  no  justification  in  passing  any  

imputations, remarks or strictures against the appellant  

for passing an order in terms of earlier orders of the High  

court.

(c) Assuming that  the  order  passed by the  appellant  was  

wrong or erroneous, even then the High Court ought to  

have either modified or set aside the order, but the High  

Court  was  not  justified  in  passing  totally  unmerited,  

derogatory,  harsh  and  castigating  remarks  against  the  

appellant.

50. When we examine the facts of the instant case in the light  

of  the judicial  decisions spreading over  a century,  the following  

principles of law can be culled out:

(I) Erosion of credibility of judiciary in the public mind, for  

whatever  reason,  is  the  greatest  threat  to  the  

independence of judiciary.

(II) Judicial  discipline  and  restraint  are  imperative  for  the  

orderly administration of justice.

(III) Judicial  decorum  makes  it  imperative  that  the  courts’  

judgments and orders must be confined to the facts and  

the legal position involved in the cases and the courts  

should  not  deviate  from  propriety,  moderation  and  

sobriety.

(IV) Majesty of Court is not displayed solely in cracking the  

whip  on mistakes,  inadvertent  errors or  lapses,  but  by  

persuasive  reasoning  so  that  the  similar  errors  and  

mistakes are not repeated by the judicial officers.  

(V) Majesty  of  Court  would  be  enhanced  by  practicing  

discipline and self-restraint  in discharging of  all  judicial  

functions.  All  actions  of  a  judge  must  be  judicious  in  

character.  

(VI) The role of superior courts is like a friend, philosopher  

and guide of the judiciary subordinate to it. The judicial  

officers  have  to  be  treated  with  parental  care  and  

affection.

(VII) The  approach  of  the  superior  courts  ought  to  be  

correctional and not to be intended to harm or ruining the  

judicial career of the officers.

(VIII) The superior courts should always bear in mind that  

the judicial officer is not before it  and should ordinarily  

refrain from passing strictures, derogatory remarks and  

scathing  criticism.  The  passing  of  such  order  without  

affording  a  hearing  to  the  judicial  officer  is  clearly  

violative of the principles of natural justice.

(IX) The  superior  courts  should  always  keep  in  mind  that  

disparaging and derogatory remarks against the judicial  

officer  would  cause  incalculable  harm of  a  permanent  

character  having the potentiality  of  spoiling the judicial  

career of  the concerned officer.  Even if  those remarks  

are  expunged,  it  would  not  completely  restitute  and

restore the harmed judge from the loss of  dignity and  

honour suffered by him.

(X) The superior courts should convey its messages to the  

concerned  judicial  officers  through  a  process  of  

reasoning  highlighting  the  correct  provisions  of  law,  

precedents and proper analysis of evidence and material  

on record, but rarely by passing harsh and derogatory  

remarks.

(XI) The superior courts must always keep in mind that it is a  

herculean  task  for  the  judicial  officer  to  get  the  

derogatory remarks expunged by the superior court. He  

is compelled to take assistance from lawyers and such a  

practitioner  may  be  appearing  before  him.  It  is  

embarrassing,  humiliating,  time  consuming  and  an  

expensive exercise.  

(XII) The superior courts must always keep in mind that the  

much  cherished  judicial  independence  must  not  be  

presented  only  from outside  but  from within,  by  those  

who form the integral part of the judicial system. Damage  

from  within  has  much  larger  and  greater  potential  for  

harm  than  danger  from  outside.  We  alone  in  judicial  

family can take care of it.

(XIII) The  superior  courts  should  not  use  strong,  

derogatory,  disparaging  and  carping  language  while  

criticizing the judicial officers. They must always keep in  

mind that, like all other human beings, the judicial officers  

are also not infallible. Any remarks passed against them

may  result  in  incalculable  harm  resulting  in  grave  

injustice.

(XIV) The  superior  courts  judges  should  not  be,  like  a  

loose  cannon,  ready  to  inflict  indiscriminate  damages  

whenever they function in judicial capacity.

(XV) The superior courts should keep in mind that infliction of  

uncalled for, unmerited and undeserved remarks clearly  

amount to abuse of the process of court.

(XVI) The  superior  courts  should  not  allow  themselves  

even  momentarily  the  latitude  of  ignoring  judicial  

precaution and propriety.

(XVII) It must be remembered that the subordinate judicial  

officers at times work under charged atmosphere and are  

constantly  under  psychological  pressure  with  all  the  

contestants  and  their  lawyers  almost  breathing  down  

their necks and more correctly upto their nostrils.  

(XVIII) Err is human and no one is infallible. A judge who has  

not  committed  an  error  is  yet  to  be  born.  Judicial  

decorum  has  to  be  maintained  at  all  times  and  even  

where criticism is justified. It  must be in a language of  

utmost restraint always keeping in view that the person  

making the comment is also fallible.  

(XIX) Judges  of  the  superior  courts  have  a  duty  and  

obligation  to  ensure  judicial  discipline  and  respect  for  

judiciary from all concerned. The respect for the judiciary  

is  not  enhanced  when  judges  at  the  lower  level  are  

criticized intemperately and castigated publicly. Our legal

system  acknowledges  the  fallibility  of  the  judges  and  

provides for appeals and revisions.

(XX) It is the duty and obligation of the judges of the superior  

courts  to  ensure  that  independence  of  judiciary  is  not  

compromised and every judicial  officer should feel  that  

he can freely and fearlessly give expression to his own  

opinion. This is absolutely imperative in maintaining the  

independence of judiciary.

(XXI) The  superior  courts’  judges  must  always  bear  in  

mind  that  no  greater  damage  can  be  caused  to  the  

administration of justice and to the confidence of people  

when  judges  at  superior  courts  express  lack  of  faith  

either in ability or integrity of subordinate judges.  

51.  On  consideration  of  the  totality  of  the  facts  and  

circumstances, the impugned order passed by the learned Single  

Judge cannot stand scrutiny of law as far as passing the remarks  

and  strictures  against  the  appellant  are  concerned  and  

consequently we deem it appropriate to set aside the impugned  

order to the extent  of  expunging the remarks made against  the  

appellant in the said order. We order accordingly.

52. The appeal is accordingly allowed and disposed of.