TMI Blog2005 (8) TMI 741X X X X Extracts X X X X X X X X Extracts X X X X ..... diction under Section 561- A Cr.P.C. in respect of the observations complained of by the State Government? If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalizations defeat the very purpose for which they are made. It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining of defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DPS Act had been taken against the accused. But as the public prosecutor was not present, those facts could not be brought to the notice of the court. In the circumstances, the appellant recalled the earlier order. 4. The accused preferred Criminal Revision against the order passed by the appellant in the High Court of Calcutta. The learned single Judge of the High Court, by an order dated December 5, 2003, allowed the revision and set aside the order passed by the appellant. According to the learned single Judge, when the appellant had passed the first order and granted bail to the accused, he could not have recalled the order in absence of the accused. The second order, according to the learned single Judge, therefore, was not in accordance with law and liable to be set aside. The appellant was accordingly directed to pass a fresh order. In the light of the directions issued by the High Court, the appellant again heard the matter on December 15, 2003. The defence counsel relied upon a decision of this Court in Aslam Babalal Desai v. State of Maharashtra, 1992CriLJ3712 , and contended that once bail was granted to the accused under sub-section (2) of Section 167 of the Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... justice delivery system deserves that subordinate Courts should obey, honour and follow the orders and directions of higher courts. A subordinate court cannot simply keep aside and ignore the direction of the higher Court. . . . His conduct was aiming towards dangerous trend and was about to destroy this system and discipline. The manner in which learned Judge passed the order on 15.12.2003 in spite of Hon'ble Supreme Court's pronouncement in Aslam Babaial Desai's case (supra) and direction of this Court dated 5.12.2003 makes it clear that by ignoring order of higher court he has made breach of judicial discipline and has damaged out criminal justice system. . . . In my opinion the conduct of learned Judge Sri S. Sett is an example of ignoring direction of this Court for which the entire matter should be placed before the Administrative Committee of this Court for taking appropriate action against the concerned learned Judge. 5. On July 9, 2004, when the matter came up for admission, this Court granted permission to file Special Leave Petition and issued notice to the Registrar General of the High Court of Calcutta. The Court, however, stated: Notice ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t held that neither sub-section (2) of Section 167 of the Code nor ratio in Aslam could apply inasmuch as the accused was not enlarged on bail and bail was not cancelled thereafter. According to the appellant, within the requisite period, charge sheet had been submitted by the police and the accused was not entitled to the benefit of default bail. 7. Now, whether the second order dated December 15, 2003, passed by the appellant was or was not correct is not the matter in issue in the present proceedings. But, in our opinion, the learned single Judge of the High Court was not justified in passing strictures against the appellant to which reference has been made by us in the earlier part of the judgment. It may be recalled that when the matter had come to the High Court earlier, the learned single Judge set aside the order passed by the appellant on November 21, 2003 and directed him to give an opportunity of hearing to the accused and to pass an appropriate order 'in accordance with law'. That direction had already been complied with and carried out by the appellant. He afforded hearing to the accused and rejected the application after considering the arguments put forwar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... . When made against a colleague they are even more open to objection. We are glad that Goswami, J. did not associate himself with these remarks of the learned Chief Justice and was fair when he assumed that Dutta J. acted as he did in his anxiety to do what he thought was required in the interest of justice. We wish the learned Chief Justice had equally made the same assumption and had not made these observations castigating Dutta J. for they appear to us to be without any basis. It is necessary to emphasis that judicial decorum has to be maintained at all times and even where criticism is justified it must be in language of utmost restraint, keeping always in view that the person making the comment is also fallible. (emphasis supplied) 11. In State of M.P. v. Nandlal Jaiswal and Ors., [1987]1SCR1 , disparaging and derogatory remarks were made by the High Court against the State Government. When the matter came up before this Court and a complaint was made against these remarks, it was observed by this Court that the remarks were totally unjustified and unwarranted . Bhagwati, C.J. stated : We may observe in conclusion that judges should not use strong and carping la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e subordinate Courts are being driven to the necessity of filling appeals to this Court or petitions before the High Courts seeking expunging of remarks or observations made and sometimes strictures passed against them behind their back. We would, therefore like to deal with a few aspects touching the making of observations or adverse comments against judicial officers and methodology to be followed if it becomes necessary. A Judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression his views and constructing his judgment or order. It should be no deterrent to formation and expression of an honest opinion and acting thereon so long as it is within four- corners of law that any action taken by a subordinate judicial officer is open to scrutiny in judicial review before a superior forum with which its opinion may not meet approval and the superior court may upset his action or opinion. The availability of such fearlessness is essential for the maintenance of judicial independence. However, sobriety, cool, calm and poise should be reflected in every action and expression of Judge. (emphasis supplied) ..... X X X X Extracts X X X X X X X X Extracts X X X X
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