TMI Blog2008 (9) TMI 1025X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Chancier Prakash, a non-resident Indian (NRI) along with others were charge-sheeted by the CBI under Section 120B 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 avai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 here under: IN THE HIGH COURT OF DELHI AT NEW DELHI CRIM MM 1043/2002 Chander Prakash ...Petitioners Through Mr. Jatan Singh v. C.B.I. ...Respondent Through Mr. A.K. Dutt ORDER 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n 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 120B 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 d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 and Ors. v. State of Kerala and Anr. (2000) 6 SCC 359; Commissioner of Income Tax, Bombay v. Amrit Lal Bhogi Lal Co. AIR 1958 SC 868 and Gojer Brothe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 f ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the concerned 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. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urrence 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 availabilit ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rder 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 forgot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld 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 and Ors. (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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se. 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 Section 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 obse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ity 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 int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 predispos ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... neous 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 som ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f 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 committe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ourts. 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. Pard ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ithin 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X
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