TaxTMI 
TaxTMI 
2008 (9) TMI 1025
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....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 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....
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.... 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 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 sh....
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....udgment? 2. To be referred to the report or not? 3. Whether the judgment should be referred in the Digest? ORAL JUDGMENT 1. Mind boggling 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 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 le....
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....tructure 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 t....
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....pugned 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 aggri....
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....orate. 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....
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....o 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 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....
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.... 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 120B/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 participat....
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....he 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, th....
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....ed 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 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 da....
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....unctions 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....
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....(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 and 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 judg....
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....de 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 rest....
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....ias 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 respectiv....
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.... 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. and Ors. v. Nandlal Jaiswal and Ors. (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....
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....he 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....
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....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 a....
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....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 erron....
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....d 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 tha....