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TMI Blog2001 (2) TMI 1046X X X X Extracts X X X X X X X X Extracts X X X X ..... uctural facilities and needed additions, alterations and improvements. The District Judge was persuading the State officials to do the needful. So far as the appellant is concerned her courtroom needed a dais to be constructed. That was done during summer vacation when the appellant was away from the headquarters. On her return she found a mess of the work having been done by the PWD officials. According to the appellant the dais was made like a box. The Presiding Judge if seated on the dais would touch the ceiling fan on the head and while looking down from the dais, would not be able to see the arguing counsel, the parties appearing and the staff seated in the court room. Attention of the District & Sessions Judge was invited who communicated with the officials concerned but they were non-responsive. As the work done by the PWD personnel caused an obstruction in the functioning of the court, and yet they would not listen to reason, the appellant initiated proceedings calling upon certain officials to show cause why proceedings under the Contempt of Courts Act, 1971 be not drawn up and a reference be not made to the High Court. During the pendency of these proceedings the PWD peop ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nder Sections 380 201 120B IPC initiated against the petitioners by the Magistrate, are hereby quashed." 4. With the abovesaid order the controversy so far as it related to the persons proceeded against, that is, the PWD officials has come to an end. But, the appellant is aggrieved by the observations made by the High Court in its judicial order. The observations grieving the appellant have been quoted with emphasis and placed into brackets by us. 5. During the course of hearing we were informed by Shri Kapil Sibal, the learned senior counsel for the appellant that the observations so made in the judicial order of the High Court have found their way into the annual confidential records of the appellant and they are sure to affect her career ahead. 6. Several cases are coming to our notice wherein observations are being made against the members of subordinate judiciary in the orders of superior forums made on judicial side and judicial officers who made orders as presiding Judges of the subordinate courts are being driven to the necessity of filing appeals to this Court or petitions before the High Courts seeking expunging of remarks or observations made and sometimes strictur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in general, at all events your own. All sorts of gaps and obstacles and impediments will obtrude themselves before your gaze, as pitilessly manifest as the hazards on a golf course. Sometimes you will know that the fault is truly yours, in which event you can only smite your breast, and pray for deliverance thereafter." (Essays on Jurisprudence, Columbia Law Review, 1963 at p.315). 9. The courts do have power to express opinion, make observations and even offer criticism on the conduct of anyone coming within their gaze of judicial review but the question is one of impelling need, justification and propriety. The following observation by Sulaiman, J. in Panchanan Banerji Vs. Upendra Nath Bhattacharji AIR1927All193 was cited with approval before this Court in Niranjan Patnaik Vs. Sashibhusan Kar and Anr. 1986CriLJ911 : "The High Court, as the Supreme Court of revision, must be deemed to have power to see that Courts below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it." This Court went on to add :- "It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sons to whom it refers; (iii) that its expunction will not affect the reasons for the judgment or order. 11. Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests :- (a) whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve [See Mohammad Naim (supra)]. 12. It was so said by a Special Bench of three-Judges presided over by Tek Chand, J. in Philip William Ravanshawe Hardless Vs. Gladys Isabel Hardless and Ors. AIR 1940 Lahore 82 : "A passage which is not necessary to the conclusion of the Judge nor even necessary to his argument and is likely to militate seriously against party's earning a living in his profession should be expunged ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dinate 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 administrativ ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al 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. 16. 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 oth ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... inherent power or the power of superintendence to quash the proceedings initiated by the learned Metropolitan Magistrate. Expunging of the remarks, as we propose to do, will not affect the reasons for the judgment of the High Court. On the other hand, the remarks have a potential to prejudice the career of the appellant. 19. We must place on record the very fair stand taken by Shri Sanjay Kaul, the learned senior counsel for the High Court, who told us that he was instructed by the High Court to appear in deference to the notice issued by this Court and to offer such assistance as might be needed and any verdict which this Court may deliver shall be acceptable to (SIC) the High Court neither opposes nor supports the appellant's prayer; its stand is neutral. 20. For the foregoing reasons the petition is allowed. The following portions occurring in the judgment of the High Court are directed to be expunged :- [The manner in which the cognizance of the said offences came to be taken clearly suggest that the Magistrate wanted to rope in the petitioners in a criminal case in order to pressurise them to have the dais in court room no.8 and other civil work as noted in the peti ..... X X X X Extracts X X X X X X X X Extracts X X X X
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