AYUB KHANversusTHE STATE OF RAJASTHAN

                 [2024] 12 S.C.R. 680 : 2024 INSC 994

                               Ayub Khan
                                    v.
                          The State of Rajasthan
                     (Criminal Appeal No. 5388 of 2024)
                              17 December 2024
           [Abhay S. Oka* and Augustine George Masih, JJ.]


                            Issue for Consideration
       Adverse observations were made against the appellant, a District
       and Sessions Judge of Rajasthan Judicial Service by the Rajasthan
       High Court. High Court observed that while rejecting the bail
       application, the appellant did not incorporate the details of the
       antecedents of the accused in the prescribed form in terms of
       the directions issued to the Trial Courts by the High Court in the
       case of Jugal Kishore vs. State of Rajasthan. Granting bail to the
       accused by the impugned order, High Court observed that non-
       compliance of the directions by the appellant, not only amounted
       to indiscipline but may also amount to contempt. Appellant sought
       quashing of the adverse directions issued against him.

                                   Headnotes†
       Adverse remarks/observations – Expunction of – Adverse
       remarks made against the appellant, a Judicial officer in a
       judicial order by the High Court:
       Held: Principles to be followed while deciding a bail application
       are well settled – Constitutional Courts can lay down the principles
       governing the grant of bail or anticipatory bail but, cannot interfere
       with the discretion of Trial Courts by laying down the form in which
       an order should be passed while deciding bail applications –
       However, in the case of Jugal Kishore, the High Court made it
       mandatory for the Trial Courts to incorporate a chart containing
       details of the antecedents of the accused who applies for bail –
       The presence of the antecedents of the accused is only one of
       the several considerations for deciding the prayer for bail made
       by him – In a given case, if the accused makes out a strong
       prima facie case, depending upon the fact situation and period of


* Author
[2024] 12 S.C.R.                                                             681

                     Ayub Khan v. The State of Rajasthan


     incarceration, the presence of antecedents may not be a ground
     to deny bail – There may be a case where a Court can grant
     bail only on the grounds of long incarceration – The presence of
     antecedents may not be relevant in such a case – No Constitutional
     Court can direct the Trial Courts to write orders on bail applications
     in a particular manner – Directions issued by the Rajasthan High
     Court in Jugal Kishore not binding – Non-compliance therewith
     by a judicial officer cannot be treated as an act of indiscipline
     or contempt – Furthermore, even assuming that the appellant
     was guilty of indiscipline, on the judicial side, the High Court
     ought not to have passed an order calling for an explanation
     from a judicial officer – The direction calling for an explanation
     from a judicial officer by a judicial order was inappropriate –
     Explanation of a judicial officer can be called for only on the
     administrative side – Eventually, the appellant had to tender an
     apology – The entire exercises done by the High Court while
     deciding a bail petition was not only unwarranted but illegal –
     Injustice has been done to the appellant by passing the orders –
     All adverse remarks/observations made against the appellant in
     the impugned order, expunged – Findings in the impugned order
     that the appellant indulged in disobedience of judicial instructions
     and indiscipline set aside – Observations/directions against
     the appellant in orders dated 4.04.23, 25.04.23 also set aside.
     [Paras 9, 10, 12-14, 16, 19]

     Judiciary – Judicial officer – Explanation sought from a judicial
     officer by way of a judicial order, practice deprecated:
     Held: Explanation of a judicial officer can be called for only on the
     administrative side – In the present case, the High Court ought to
     have shown restraint – High Court cannot damage the career of a
     judicial officer by passing such orders as he cannot defend himself
     when such orders are passed on the judicial side. [Paras 13, 18]

                              Case Law Cited
     Jugal Kishore v. State of Rajasthan (2020) 4 RLW 3386; Sonu
     Agnihotri v. Chandra Shekhar and Others, 2024 SCC OnLine SC
     3382 – referred to.

                                 List of Acts
     Penal Code, 1860; Arms Act, 1959.
682                                                             [2024] 12 S.C.R.

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                                List of Keywords
       Adverse remarks/observations; Expunction; Directions by
       Constitutional Court; quashing the adverse directions; Bail/
       Anticipatory bail; Rajasthan Judicial Service; District and Sessions
       Judge; Rajasthan High Court; Chart containing details of the
       antecedents of the accused in the prescribed tabular form/format;
       Indiscipline; Contempt; Principles governing the grant of bail/
       anticipatory bail; Discretion of Trial Courts; Directions issued
       by High Court not binding; Non-compliance by a judicial officer;
       Calling for an explanation from a judicial officer by a judicial order;
       Administrative side; Judicial side; Apology; Adverse remarks/
       observations expunged; No disobedience of judicial instructions.

                               Case Arising From
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
       5388 of 2024
       From the Judgment and Order dated 05.05.2023 of the High Court
       of Judicature for Rajasthan at Jaipur in SBCRMBA No. 1800 of 2023

                            Appearances for Parties
       Siddharth Luthra, Sr. Adv., Javed Khan, Ms. Vanya Gupta, Kushagra
       Raghuvanshi, Advs. for the Appellant.
       Ms. Sansriti Pathak, A.A.G., Vishal Meghwal, Milind Kumar, Aman
       Prasad, Advs. for the Respondent.

                  Judgment / Order of the Supreme Court

                                    Judgment

       Abhay S. Oka, J.

1.     Leave granted.

       FACTUAL ASPECT
2.     The appellant is a District and Sessions Judge of Rajasthan Judicial
       Service. The appellant joined the judicial service in the year 1993. The
       appellant has filed the present appeal for limited purposes of striking
       down observations made in the impugned order against him and for
       quashing the adverse directions issued against him. The appellant
[2024] 12 S.C.R.                                                         683

                         Ayub Khan v. The State of Rajasthan


      decided a bail application filed by an accused who was charged with
      offences punishable under Section 307 read with Section 34 of the
      Indian Penal Code (for short, ‘IPC’) and Sections 3, 3/25 and 5/25
      of the Arms Act, 1959. The appellant rejected the bail application.
      Therefore, the accused filed a bail application before the High Court.
      The impugned order has been passed on the bail application. By
      the impugned order, bail has been granted to the accused. While
      granting bail, adverse observations have been made by the High
      Court against the appellant. Certain directions have been issued
      which affect the appellant.
3.    In the case of Jugal Kishore vs. State of Rajasthan,1 Rajasthan
      High Court issued directions to the Trial Courts, which were to be
      implemented while deciding bail applications. The directions were
      contained in paragraphs 9, 10 and 11 of the decision. Paragraphs
      nos. 9 to 11 read thus:
             “9. Thus, this Court directs that all learned trial courts
             shall, while allowing or disallowing any regular/
             anticipatory bail application of any accused person,
             give the complete details of the antecedents, if any,
             and also record that there are no antecedents of the
             accused person in case of none being there. If there
             are antecedents of the accused, then the complete
             details of the antecedents i.e. FIR Number(s) & Case
             Number(s), Section(s), date(s), status and date of
             arrest & release on any previous occasion, if any, in
             the chart form shall be prepared and incorporated
             in the learned trial courts’ order, while granting or
             dismissing the bail application.
             10. This order shall be conveyed by the Registry of this
             Court to all learned District & Sessions Judges of the
             State, who shall ensure the immediate implementation
             of this order amongst all the judicial officers and all
             courts in their respective jurisdiction, which are hearing
             the bail applications. The detailed antecedents report
             in aforesaid format so provided in the trial courts’
             order shall be the requirement for disposal of any


1    (2020) 4 RLW 3386
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            bail application in State of Rajasthan. It is also directed
            that the learned Public Prosecutors all over the State
            shall call for the antecedents report well in advance in
            every case of bail, so as to enable the courts to have
            a definite and correct information regarding previous
            criminal antecedents of the accused. A certified copy of
            this order be also sent by the Registry to the Director of
            the Prosecution Department of the State for necessary
            compliance, amongst the learned Public Prosecutors all
            over the State of Rajasthan.
            11. The Registry of this Hon’ble Court shall ensure
            compliance of this order, in its letter and spirit, and submit
            such compliance before this Court on 05.01.2021.”
                                                    (underline supplied)

4.     While dismissing the bail application by order dated 20th December
       2022, the appellant did not incorporate the details of the antecedents
       of the accused in the prescribed tabular form in terms of the directions
       in paragraph 9 quoted above. He merely mentioned in the order
       that there were 10 criminal cases registered against the accused
       at different police stations. Therefore, the learned Single Judge of
       the High Court passed an order dated 4th April 2023 observing that
       since the directions issued by the High Court in the case of Jugal
       Kishore1 were not complied with by the appellant, it not only amounts
       to indiscipline but may also amount to contempt. Therefore, the
       learned Judge directed that a copy of the said order be forwarded
       to the appellant and his explanation be called for within five days.
       Accordingly, the appellant submitted his explanation dated 6th April
       2023, in which he accepted that the directions in paragraph 9 of the
       decision have not been complied with. The appellant stated that this
       omission happened due to excessive work pressure. He assured
       the High Court that he would follow directions in paragraph 9 of the
       said decision.
5.     The matter did not end there. Even after the appellant submitted his
       explanation, by order dated 25th April 2023, the learned Single Judge
       of Rajasthan High Court directed the appellant to send a list of the
       total number of bail applications he disposed of during February 2023
       and submit copies of the orders. The High Court also directed the
       appellant to submit a report stating whether the directions in paragraph
[2024] 12 S.C.R.                                                         685

                     Ayub Khan v. The State of Rajasthan


     9 of the aforesaid judgment were followed while passing orders. The
     appellant complied with the directions by submitting a report dated
     3rd May 2023. After that, the impugned order dated 5th May 2023
     was passed. In paragraph no. 9 of the impugned order, the learned
     Single Judge of Rajasthan High Court observed thus:
          “9. Non-compliance of the judicial and administrative orders
          of this Court by the Sessions Judge himself was a serious
          matter, on which a judicial order dated 04.04.2023 was
          passed and a direction was given to obtain explanation,
          in pursuance of which in its letter dated 06.04.23, it was
          mentioned that the winter vacations were about to start
          soon on 20.12.2022 and due to excessive work, the
          details of pending criminal cases against the accused
          could not be recorded in the prescribed format and it
          was also mentioned that “in disposal of all bails, the list
          of pending cases against the accused in the orders of the
          Hon’ble Court in the bail order is recorded in accordance
          with the principles enunciated in Jugal Kishore Vs. State
          of Rajasthan.”
6.   In paragraph 10, the learned Single Judge referred to the report
     submitted by the appellant pursuant to the order dated 25th April 2023.
     It was observed that even in the bail orders passed in February 2023
     by the appellant, compliance with the directions was not made.
     Paragraphs 11 and 12 of the impugned order read thus:
          “11. It is clear from the above discussion that despite being
          on an important post like Sessions Judge, the concerned
          Presiding Officer did not follow the judicial or
          administrative instructions of this Court and on being
          asked for explanation, took different contradictory
          and contrary defences at different times. An attempt
          has been made to mislead this Court and judicial
          time of this Court has been unnecessarily spent on
          this account. In the above circumstances, this matter
          is related to the disobedience of judicial instructions
          and judicial indiscipline, therefore a serious matter
          and it is necessary to bring this fact to the notice of
          the Honorable Chief Justice for necessary action in
          relation to the concerned Presiding Officer.
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             12. Therefore, according to the opinion and instructions
             expressed in para no. 08 and 11 of this order, the Registrar
             General of this court is directed to immediately submit a
             copy of this order with relevant documents and explanations
             to the Hon’ble Chief Justice.”
                                                       (emphasis added)

       SUBMISSIONS
7.     The learned senior counsel appearing for the appellant invited our
       attention to the judgment and order dated 18th June 2021 passed
       by the learned Single Judge of the Rajasthan High Court in S.B.
       Criminal Misc. Interim Bail Application No.6821/2021 (Gagandeep @
       Goldy v. State of Rajasthan). In paragraph no.13 of the said order, the
       learned Single Judge issued similar directions, which were issued in
       paragraph no.9 of the decision in the case of Jugal Kishore,1 with
       more elaboration. He pointed out that by order dated 20th February
       2023 of this Court in Criminal Appeal arising out of SLP (Crl.) No.
       11675-11676 of 2022, by which a direction for erasing paragraphs
       nos. 13 to 18 of the order dated 18 th June 2021 was issued.
       Notwithstanding the order of this Court dated 20th February 2023, the
       High Court committed illegality in insisting on compliance with the
       directions issued in the case of Jugal Kishore.1 He submitted that
       the High Court ought not to have issued a direction virtually laying
       down in what manner orders should be passed by the Trial Courts
       while deciding every bail application, directing that the antecedents
       of the accused should be incorporated in the order in a particular
       tabular format. He submitted that the High Court cannot interfere
       with the judicial discretion of the Session Judges by instructing them
       to pass orders by incorporating information about the antecedents
       of the accused in a particular format. He submitted that as far as
       the strictures passed against the appellant are concerned, the law
       has been laid down by this Court in the case of Sonu Agnihotri
       vs. Chandra Shekhar and Others.2 He urged that unwarranted
       strictures passed by the learned Single Judge may adversely affect
       the judicial career of the appellant. The learned counsel appearing
       for the State has assisted the Court.


2    2024 SCC OnLine SC 3382
[2024] 12 S.C.R.                                                          687

                     Ayub Khan v. The State of Rajasthan


     CONSIDERATION OF SUBMISSIONS
8.   We have already quoted the directions issued by the High Court
     in the case of Jugal Kishore.1 The gist of the directions issued is
     summarised as follows:
     i.     The Trial Courts shall, while allowing or disallowing any regular
            or anticipatory bail application must incorporate complete details
            of the antecedents of the accused, if any, in the order;
     ii.    The Trial Court shall record that there are no antecedents in
            case none are there; and
     iii.   If antecedents exist, the same shall be incorporated in the tabular
            form containing details mentioned in the judgment.
9.   The principles to be followed while deciding on a bail application
     are well settled. If Trial Courts commit errors while deciding bail
     applications, the same can always be corrected on the judicial
     side by the Courts, which are higher in the judicial hierarchy. The
     Constitutional Courts can lay down the principles governing the grant
     of bail or anticipatory bail. However, the Constitutional Courts cannot
     interfere with the discretion of our Trial Courts by laying down the form
     in which an order should be passed while deciding bail applications.
     What the High Court has done in paragraph 9 in the decision in the
     case of Jugal Kishore1 is that it has made it mandatory for the Trial
     Courts to incorporate a chart containing details of the antecedents
     of the accused who applies for bail.
10. The presence of the antecedents of the accused is only one of the
    several considerations for deciding the prayer for bail made by him.
    In a given case, if the accused makes out a strong prima facie case,
    depending upon the fact situation and period of incarceration, the
    presence of antecedents may not be a ground to deny bail. There
    may be a case where a Court can grant bail only on the grounds of
    long incarceration. The presence of antecedents may not be relevant
    in such a case. In a given case, the Court may grant default bail.
    Again, the antecedents of the accused are irrelevant in such a case.
    Thus, depending upon the peculiar facts, the Court can grant bail
    notwithstanding the existence of the antecedents. In such cases,
    the question of incorporating details of antecedents in a tabular
    form does not arise. If the directions in the case of Jugal Kishore1
    are to be strictly implemented, the Court may have to adjourn the
688                                                        [2024] 12 S.C.R.

                         Supreme Court Reports


       hearing of the bail applications to enable the prosecutor to submit
       the details in the prescribed tabular format.
11. When the prosecution places on record material showing antecedents
    of the accused, and if the Court concludes that looking at the facts
    of the case and the nature of antecedents, the accused should be
    denied bail on the ground of antecedents, it is not necessary for the
    Court to incorporate all the details of the antecedents as required by
    paragraph 9 of the decision in the case of Jugal Kishore.1 The Court
    may only refer to the nature of the offences registered against the
    accused by referring to penal provisions under which the accused
    has been charged.
12. In a given case, if necessary, the court can incorporate a chart as
    directed in paragraph 9 while deciding a bail application. However,
    if a High Court directs that in every bail order, a chart should be
    incorporated in a particular format, it will amount to interference
    with the discretion conferred on the Trial Courts. Therefore, in our
    view, what is observed in paragraph 9 of the decision in the case
    of Jugal Kishore1 cannot be construed as mandatory directions to
    our Criminal Courts. At the highest, it can be taken as a suggestion
    which need not be implemented in every case. No Constitutional
    Court can direct the Trial Courts to write orders on bail applications
    in a particular manner. One Judge of a Constitutional Court may be
    of the view that Trial courts should use a particular format. The other
    Judge may be of the view that another format is better.
13. The matter does not rest here. In the order dated 4th April 2023
    passed in the same bail petition in which the impugned order has
    been passed, it was observed that the directions issued in paragraph
    9 have been disregarded by the appellant. The High Court went to the
    extent of observing that the act of disregarding direction contained in
    paragraph 9 of the decision in the case of Jugal Kishore1 is not only
    indiscipline but is a serious matter which may amount to contempt.
    Therefore, an explanation of the appellant was called for. We fail
    to understand how the appellant committed acts of indiscipline or
    contempt by not following the suggestion incorporated in paragraph 9.
    Secondly, even assuming that the appellant was guilty of indiscipline,
    on the judicial side, the High Court ought not to have passed an
    order calling for an explanation from a judicial officer. The direction
    of calling for an explanation from a judicial officer by a judicial order
[2024] 12 S.C.R.                                                      689

                     Ayub Khan v. The State of Rajasthan


     was inappropriate. Explanation of a judicial officer can be called for
     only on the administrative side. The High Court carried the matter
     further. By order dated 25th April 2023, the High Court directed
     the appellant to send a list of the total number of bail applications
     he disposed of in February 2023, along with copies of the orders
     passed by him. He was also directed to submit a report on whether
     directions contained in the case of Jugal Kishore1 were followed
     by him. The appellant was forced to give a reply and was left with
     no choice but to tender an apology by submitting the reply. With
     the utmost respect to the High Court, undertaking such an exercise
     was a waste of precious judicial time of the High Court which has
     a huge pendency.
14. What the High Court has done while deciding a bail petition in a
    case where bail was denied by the appellant as a Session Judge
    was completely uncalled for. The entire exercises done by the High
    Court right from issuing directions in the case of Jugal Kishore1 and
    passing orders dated 4th April 2023, 25th April 2023 and the impugned
    order by which the High Court found fault with the appellant was not
    only unwarranted but illegal.
15. As noted earlier, in the judgment and order dated 18th June 2021
    in S.B. Criminal Misc. Interim Bail Application No.6821/2021,
    in paragraphs 13 to 16 and in particular paragraph 15, similar
    directions were issued which are issued in the case of Jugal
    Kishore,1 and by order dated 20th February 2023, the said directions
    have been set aside by this Court in Special Leave Petition (Crl.)
    Nos.11675-11676 of 2022 (Rajasthan High Court v. State of
    Rajasthan and Anr.).
16. Therefore, to conclude, we hold that the directions issued in
    paragraphs 9 and 10 of the decision of the Rajasthan High Court in
    the case of Jugal Kishore1 cannot be said to be binding directions.
    At the highest, the same shall be treated as suggestions made by
    the High Court. Non compliance with what is observed in paragraphs
    9 and 10 of the said decision by a judicial officer cannot be treated
    as an act of indiscipline or contempt.
17. Injustice has been done to the appellant by passing the orders which
    we have referred to above. Before we part with this judgment, we
    may refer to a decision of this Court in the case of Sonu Agnihotri.2
    In paragraphs nos. 15 and 16, this Court held thus:
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                      Supreme Court Reports


       “15. The Courts higher in the judicial hierarchy are invested
       with appellate or revisional jurisdiction to correct the errors
       committed by the courts that are judicially subordinate
       to it. The High Court has jurisdiction under Article 227
       of the Constitution of India and Section 482 of the CrPC
       to correct the errors committed by the courts which are
       judicially subordinate to it. We must hasten to add that no
       court can be called a “subordinate court”. Here, we refer
       to “subordinate” courts only in the context of appellate,
       revisional or supervisory jurisdiction. The superior courts
       exercising such powers can set aside erroneous orders
       and expunge uncalled and unwarranted observations.
       While doing so, the superior courts can legitimately
       criticise the orders passed by the Trial Courts or the
       Appellate Courts by giving reasons. There can be
       criticism of the errors committed, in some cases, by
       using strong language. However, such observations
       must always be in the context of errors in the impugned
       orders. While doing so, the courts have to show
       restraint, and adverse comments on the personal
       conduct and calibre of the Judicial Officer should
       be avoided. There is a difference between criticising
       erroneous orders and criticising a Judicial Officer.
       The first part is permissible. The second category of
       criticism should best be avoided. The reasons are
       already explained by this Court in Re:‘K’, A Judicial
       Officer. There are five reasons given in paragraph 15
       of the decision why judicial officers should not be
       condemned unheard. As observed in the decision, the
       High Court Judges, after noticing improper conduct
       on the part of the Judicial Officer, can always invite
       the attention of the Chief Justice on the administrative
       side to such conduct. Whenever action is proposed
       against a judicial officer on the administrative side,
       he gets the full opportunity to clarify and explain his
       position. But if such personal adverse observations
       are made in a judgment, the Judicial Officer’s career
       gets adversely affected.
[2024] 12 S.C.R.                                                             691

                     Ayub Khan v. The State of Rajasthan


           16. The Judges are human beings. All human beings are
           prone to committing mistakes. To err is human. Almost all
           courts in our country are overburdened. In the year 2002,
           in the case of “All India Judges’ Association (3) v. Union of
           India, this Court passed an order directing that within five
           years, an endeavour should be made to increase the judge-
           to-population ratio in our trial judiciary to 50 per million.
           However, till the year 2024, we have not even reached
           the ratio of 25 per million. Meanwhile, the population and
           litigation have substantially increased. The Judges have
           to work under stress. As stated earlier, every Judge,
           irrespective of his post and status, is likely to commit errors.
           In a given case, after writing several sound judgments, a
           judge may commit an error in one judgment due to the
           pressure of work or otherwise. As stated earlier, the higher
           court can always correct the error. However, while doing
           so, if strictures are passed personally against a Judicial
           Officer, it causes prejudice to the Judicial Officer, apart
           from the embarrassment involved. We must remember
           that when we sit in constitutional courts, even we are
           prone to making mistakes. Therefore, personal criticism
           of Judges or recording findings on the conduct of Judges
           in judgments must be avoided.”
                                                    (emphasis supplied)

18. The High Court ought to have shown restraint. The High Court cannot
    damage the career of a judicial officer by passing such orders. The
    reason is that he cannot defend himself when such orders are passed
    on the judicial side.
19. Hence, we pass the following order:
     i.    All adverse remarks/observations in the impugned order dated
           5th May 2023 made against the appellant, stand expunged.
           The findings contained in paragraph 11 of the impugned order
           holding that the appellant has indulged in disobedience of judicial
           instructions and indiscipline are set aside and the direction to
           place the case before the Chief Justice is also set aside;
     ii.   The observations made against the appellant in orders dated
           4th April 2023, 25th April 2023 and directions issued thereunder
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                              Supreme Court Reports


               to the appellant are set aside. We clarify that in view of what
               we have held earlier, the adverse remarks and observations
               made against the appellant in the aforesaid orders cannot be
               the basis for taking any action against the appellant on the
               administrative side;
       iii.    A copy of this judgment shall be forwarded to the Registrar
               General of the High Court of Rajasthan who shall place the
               same before the Hon’ble Chief Justice of the said Court on
               administrative side.
       iv.     Appeal is allowed on the above terms.

       Result of the case: Appeal allowed.



       †
           Headnotes prepared by: Divya Pandey