06 October 2004
Supreme Court
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RAMESHWAR VYAS Vs STATE OF RAJASTHAN

Bench: CJI R.C. LAHOTI,G.P. MATHUR,P.P. NAOLEKAR
Case number: Crl.A. No.-001152-001152 / 2004
Diary number: 10351 / 2004
Advocates: Vs ARPUTHAM ARUNA AND CO


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CASE NO.: Appeal (crl.)  1152 of 2004

PETITIONER: IN THE MATTER OF  RV, A JUDICIAL OFFICER

RESPONDENT: ..................

DATE OF JUDGMENT: 06/10/2004

BENCH: CJI R.C. LAHOTI, G.P. MATHUR & P.P. NAOLEKAR

JUDGMENT: J U D G M E N T

(Arising out of S.L.P.(Crl.) No. 3013 of 2004)

R.C. LAHOTI, CJI.

       Leave granted.

       The appellant before us is a member of Higher Judicial  Service, presently posted as an Additional District Judge in a  Fast Track Court.  The appellant was  Presiding Judge of the trial  court wherein an accused was facing trial (since 1994) in a  criminal case on charges under Sections 420, 467, 468 & 471 of  the Indian Penal Code.  In the year 2001, the accused filed a  petition under Section 482 of the Code of Criminal Procedure (for  short "the Cr.P.C.")  seeking quashing of the proceedings on the  ground of delay at the trial.  On 8th March, 2001 a  learned  Single Judge of the High Court  hearing the petition filed by the  accused, passed an order directing the trial court to take all  possible steps immediately to ensure that the witnesses were  positively examined on 24th April, 2001.  The trial court was also  directed to explain as to why for such a long time, very often  process was not issued to the witnesses resulting in prolonging  of the trial.  The petition under Section 482 of the Cr.P.C. was  kept pending.  It came up for hearing again on 27th April, 2001.   The learned counsel for the accused-petitioner seems to have  complained before the High Court that only 20 witnesses were  called by the trial court to remain present on 24th April, 2001 out  of whom only 5 witnesses turned up and they were examined  while the next date was appointed as 29th May, 2001.  The  learned Single Judge hearing the petition seems to have felt  agitated on non-receipt of the explanation from the Presiding  Judge of the trial court in the terms as directed on 8th March,  2001.  The case was taken up for hearing in the earlier part of  the day.  The Registry was directed to seek an explanation from  the Presiding Judge of the trial court post-haste on telephone  and the case was directed to be taken up in the later part of the  day i.e. post-lunch.  The oral response as received on telephone  and brought to the knowledge of the learned Single Judge of the  High Court was a gist of the explanation which was received on  the following day in writing.  The Presiding Officer of the trial  court explained that the summons to the witnesses who were to  be examined were issued in time for recording evidence on the  appointed date i.e. 24th April, 2001.  However, only 5 witnesses   turned up and their statements were recorded.  In all, there  were 60 witnesses to be examined.  The trial court had directed

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them to be summoned by appointing 3 dates of hearing i.e. 29th  May, 2001; 12th June, 2001 and 26th June, 2001.  The date 29th  May, 2001 was appointed for examining such witnesses as had  failed to turn up on 24th April, 2001 while the remaining two  dates were appointed for examining 20 witnesses on each date.   So far as the non-issuance of the process ( and also the non- examination of the witnesses) is concerned it will be useful to  extract and reproduce the following part of the explanation  furnished by the trial court:-         "Explanation was sought from the  concerned Clerk for not issuing the process  earlier.  In between the application of the  accused for closing the prosecution  evidence, total 11 hearings took place.  Out  of which process was issued for three dates.   The Clerk explained that due to excess work  load, process could not be issued.  Strict  instructions have been given for issue of  process to the Clerk.

       Delay in deciding the case was also  due to non-returning the process by the  police.  On indicating the orders of the  Hon’ble High Court, while issuing the letter  with process dated 24/4/2001, 13 processes  were served.  Out of which five witnesses  were present whose evidence was recorded.

       Sir, approximately four thousand  cases were pending before this Court  already.  Currently, about two thousand five  hundred cases are pending.  Different work  remains excessive.  In this case, there are  four different counsels for the accused.  For  that the Court has to spend more time for  their presence at one time.

       Returning of process by the police is  also unsatisfactory.  At number of times,  processes are not returned.  Even in  returning the process, reports are sent  incomplete. Even after these circumstances,  I assure you, Sir, that in deciding the cases,  every step will be taken for early disposal."

On 27th April, 2001 the learned Single Judge of the High Court  directed the petition under Section 482 of the Cr.P.C. preferred  by the accused to be dismissed.  However, at the same time in  the operative part of the order, the learned Single Judge directed  the Registrar General to ’initiate necessary departmental  proceedings’ against the Presiding Judge of the trial court  ’looking to the conduct of the trial judge’ and ’for not complying  with the order’ passed by the High Court on 8th March, 2001 ’in  not submitting his explanation by today and for the gross delay  in the trial’.  A copy of the order was directed to be kept on the  personal file of the Judge concerned.

       The Subordinate Judge left with no other alternative  preferred a petition to the High Court seeking expunging of the  observations made and direction given by the learned Single  Judge to the extent to which they were directed against him.   The petition has  been disposed of by the impugned order by  another learned Single Judge of the High Court who has  observed that the explanation which was sought to be provided

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by the learned Subordinate Judge in his petition was available to  be set up by way of defence in the disciplinary proceedings  directed to be initiated against him and, therefore, it could not  be said that the order of the High Court dated 27th April, 2001  would result in any manifest injustice or would amount to abuse  of process of any Court.  Feeling aggrieved, the Subordinate  Judicial Officer has filed this appeal by special leave.                  The High Court has made appearance through a counsel  instructed by the Registrar of the High Court.   A counter  affidavit  sworn in by the Registrar(Writs) of the High Court has  been filed contesting the petition for special leave to appeal.

       We have heard the learned senior counsel for the  appellant-Judicial Officer as also the learned counsel for the High  Court.  We are satisfied that the impugned order of the High  Court runs counter to the law laid down by this Court in a series  of pronouncements and, therefore, is liable to be set aside.  

       Time and again this Court has emphasised the need for  keeping the subordinate judiciary under control \026 disciplinary,  administrative and judicial - of the High Court.  However, at the  same time this Court has cautioned the High Courts by stressing  upon the need for restraint, care and circumspection while  exercising its power of superintendence lest those who dispense  justice to others should themselves suffer injustice.  It would  suffice to make a reference to only a few of the decisions.  In  Mahabir Singh Vs. State of Haryana [2001] 7 SCC 148, this  Court emphasised the need for maintaining judicial restraint and  avoiding unnecessary castigation of (police and) subordinate  judiciary.  Again in R.C. Tamrakar & Anr. Vs. Nidi Lekha  [2001] 8 SCC 431, reiterating its observations in several earlier  cases this Court held that judicial restraint is a virtue  concomitant of every judicial dispensation.  The higher tiers are  provided in the judicial hierarchy to set right  the  errors which  could possibly have crept, in the findings, orders or proceedings  of the courts at the lower tiers.  "Such powers are certainly not  for belching diatribe at judicial personages in lower cadre.   It is  well to remember the words of a jurist that ’a Judge who has not  committed any error is yet to be born’."   Castigating members  of the subordinate judiciary does no good to the system as  placing on public record, the aspersions cast on them, shakes  the very confidence of the people in judicial institutions.  Such  remarks, if avoidable and uncalled for, compel the members of  the subordinate judiciary to approach the High Court seeking  expunging of the remarks, which is rather unfortunate.

       "In the matter of: ’K’ a Judicial Officer" [2001] 3 SCC  54, a Bench presided over by the then Chief Justice of India had   an occasion for dealing with such an issue in very many details  and from several angles.  This Court reminded the High Courts  that the supervisory jurisdiction vesting in them over the  subordinate judiciary was meant to be exercised like a friend,  philosopher and guide.  The power vesting in the higher echelons  is not meant for cracking a whip or for being exercised with  vindictiveness on errors, mistakes or failures committed by those  in lower echelons which does no good to the system but has to  be exercised for the purpose of toning up the system so that the  mistakes, errors or failures which may have been committed  unknowingly or unwittingly are not repeated.  The Court  illustratively enumerated the consequences which flow onto the  subordinate judiciary when the High Courts indulge in castigating  its members, which is at times, an uncalled for display of judicial  might.  This Court took care to see that its observations may not  be misunderstood and suggested an alternative, safe and

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advisable course so as to be just and fair to the members of the  subordinate judiciary whose conduct or behaviour having come  to notice during the course of hearing on judicial side did not  meet the approval of the High Court.  This Court suggested :-           "The conduct of a judicial officer,  unworthy of him, having come to the notice  of a Judge of the High Court hearing a  matter on the judicial side, the lis may be  disposed of  by pronouncing  upon the  merits thereof as found by him but avoiding  in the judicial pronouncement criticism of,  or observations on the "conduct" of the  subordinate judicial officer who had  decided  the case under scrutiny.  Simultaneously,  but separately in-office proceedings may be  drawn up inviting attention of Hon’ble Chief  Justice to the facts describing the conduct of  the Subordinate Judge concerned by  sending a confidential letter or note to the  Chief Justice.  It will thereafter be open to  the  Chief Justice to deal with the  subordinate judicial officer either at his own  level or through the Inspecting Judge or by  placing the matter before the full court for  its consideration.  The action so taken would  all be on the administrative side.  The  Subordinate Judge concerned would have  an opportunity of clarifying his position or  putting forth the circumstances under which  he acted.  He would not be condemned  unheard and if the decision be adverse to  him, it being on administrative side, he  would have some remedy  available to him  under the law.  He would not be rendered  remediless."

       Reverting back to the facts of the present case, we are of  the opinion that the learned Single Judge of the High Court  passing the order dated 24th April, 2001 would not probably have  made those observations and directed initiation of departmental  inquiry if only he would have waited for a day when the written  and detailed explanation furnished by the Presiding Judge of the  trial court would have been available before him.  It is a  judicially noticeable fact that the subordinate courts are over- burdened and are called upon to deal with such number of cases  as is totally out of proportion with what a Judge can reasonably  be supposed to handle.  Yet they do their best.  The  appellant  has in his explanation pointed out the huge pendency of cases  before him, the number of witnesses (about 60) which were  required to be examined before concluding the trial, the  recalcitrant process serving agency and again the over-burdened  Clerk in the Court issuing the processes \026 summonses and  warrants, and at the cap of all these the number of different  counsel appearing for a number of accused persons who all insist  on their convenience also being accommodated by the Court.   The learned Single Judge of the High Court also acted with  undue haste inasmuch as he insisted on the explanation being  called for from the trial Judge on that very day and that too  telephonically.  The explanation dated 28th April, 2001, in our  opinion, is reasonable and satisfactorily  explains the reasons for  the alleged non-compliance with the orders made by the learned  Single Judge on 8th March, 2001.

       The High Court in its impugned order ought to have

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directed expunging of the remarks contained in the order dated  27th April, 2001 and prejudicial to the appellant.

       The appeal is allowed.  The petition filed before the High  Court by RV, the member of the subordinate judiciary and  disposed of by the impugned order shall stand allowed.  The  adverse observations made against the appellant in the order  dated 27th April, 2001 and the direction contained therein shall  stand expunged.

       Before parting, we make it clear that we have directed the  observations being expunged and  directions  contained in the  judicial order being set aside as we think that the same were  uncalled for and should not have been made a part of the judicial  order more so made without affording the Judicial Officer an  opportunity of hearing.  However, this order would not come in  the way of the High Court if it chooses to initiate any  proceedings in exercise of the jurisdiction conferred on it under  Article 235 of the Constitution of India but independently of the  observations made and direction given in the order dated 27th  April, 2001.