Holding

The Sessions Judge was within his jurisdiction to grant bail and the High Court’s intemperate remarks were unjustified, warranting their expungement.

Summary

A senior District & Sessions Judge (the appellant) granted bail to two accused under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances (NDPS) Act, 1985. The Patna High Court Single Judge cancelled the bail and harshly criticised the judge, alleging extraneous considerations, ignorance of Section 37, and recommending his removal from office. The judge appealed to the Supreme Court under Article 136 seeking expungement of the remarks. The Supreme Court held that the judge was within his jurisdiction to grant bail, that the High Court’s scathing observations were unjustified and violated the principle of judicial restraint, and ordered the offending language expunged. The Court also noted that Section 37(1)(b) does not apply to offences under Section 20(b)(i) as per a prior Patna High Court decision, but did not adjudicate the merits of the bail decision itself. The appeal was disposed with the expungement of the remarks.

Issues considered

The propriety of the High Court Single Judge's remarks castigating the Sessions Judge for granting bail.
Whether the Sessions Judge was within jurisdiction to grant bail under the NDPS Act, considering Section 37(1)(b).
The appropriateness of requiring a subordinate judge to submit a report in defence of his order.

Legislation cited

Code of Criminal Procedure, 1973s. 439
Constitution of Indias. Article 136
Narcotic Drugs and Psychotropic Substances Act, 1985s. 20(b)(i), s. 37(1)(b)

Subjects

bailNDPS Actjudicial restrainthigher court remarksexpungementSection 37special judgejudicial proprietyappellate jurisdiction

Judgment

A BRAJ KISHORE THAKUR
v.
UNION OF INDIA AND OTHERS
-
FEBRUARY 24, 1997

B [MADAN MOHAN PUNCHHI AND K.T. THOMAS, JJ.]

Judicial Restraint : Bail granted by District and Sessions Judge-Bail
Order challenged by Respondent-High Cowt cancelled the bail Oi"der and
also making severe strictures against District and Sessions Judge with the
-
C remarks that, "the act of granting bail was for extraneous consideration'' and
"he does noi deseive to remain as Sessions Judge and he should be divested
of his original powers''--Held, Remarks were unjustified and therefore ex-
punged-Constitution of India Alt. 136 Practice & Procedure-Judicial order
passed by District & Sessions Judge-Reasons-High Court calling for repo1t
D giving reasons in support of the order-Held, unwholesome practice and hence
deprecated.

The appellant-District Judge, granted bail to two persons involved
in offence under Section 20(b)(i) of Narcotic Drugs and Psychotropic
Substances Act, 1985. The Respondent challenged the Bail Order before
E the High Court Single Judge of the High Court called for the record and
a report from the District & Sessions Judge and had gone through the
same. Thereafter, he had cancelled the bail order, and also made severe
remarks against the appellant observing that the act of granting bail
ignoring provisions of S. 37 of N.D.P.S. Act amounted to judicial in di sere·
tion and bail granted for extraueous considerations and he does not
F deserve to remain as Sessions Judge and he should be divested of his
original powers. Being aggrieved, by this Order, the appellant filed this ,..
appeal by special leave.

Disposing of the appeal, this Court

G HELD: 1. In the instant case, the Sessions Judge was well within his
jurisdiction when he passed the order granting bail to the. two persons,
though it is a different matter, whether the discretion was well exercised
by him. When the Single Judge made unjustifiable, unsavoury and scathing
remarks on an undefended judge of the subordinate court; he was only
H wounding the institution of judiciary. Therefore, in the interest of justice
420
B.K. THAKUR v. U.0.1. 421

and fairness the offending remarks made by the single judge are expunged. A
[426-C-D]
Narcotics Control Bureau v. Kishan Lal, AIR [1991] SCC 558, referred
to.

2. Judicial restraint is a virtue. A virtue which shall be concomitant B
of every judicial expression. It is an attribute of a Judge which he is obliged
to keep refurbished from time to time, particularly while dealing with
matters before him whether in exercise of appellate or revisional or other
supervisory jurisdiction. Higher Courts must remind themselves constant-
ly that higher tiers are provided in the judicial hierarchy to set right errors
which could possibly have crept in the findings or orders of courts at the C
lower. tiers. Such powers are certainly not for belching diatribe at judicial
personages in lower cadre. [422-C-D]

. Kasinath v. State of Bihar, JT (1996) 4 SC 605; K.P. Tiwari v. State of
'M.P., AIR (1994) SC 1031 and Isuhari Prasad Mishra v. Mohamad I~s, D
[1963] 3 SCR 722, relied on. ·

Kamlesh Kumar v. State of Bihar, .(1994) 2 PWR 600, referred to.

3. No greater damage can be caused to the administration of Justice
and to the confidence of people in judicial institutions when Judges of E
higher court publicly express lack of faith in the Subordinate Judges. 1.t
has been s_aid time and again that respect for judiciary is not in hands by
using intemperate language and by causing aspersions against lower
judiciary. A judicial officer against whom expressions are made in the
judgment could not appear before the Higher Court to defend his order.
Judges of High Court must therefore exercise greater judicial restraint F
and adopt great care when they are tempted to employ strong terms
against the lower judiciary. [426-G-H]

4.1. Reasons in support of a judicial order can appear only in the
order itself and it is an unwholesome practice to compel a judicial officer G
to write a report subsequently in defence of his conclusion. [422-H]

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
200 of 1997.

From the Judgment and Order dated 5.11.96 of the Patna High Court H
422 SUPREME COURT REPORTS [1997] 2 S.C.R.

A in Crl.M. No. 10564 of 1996.
L.R. Singh for the Appellant.

Udai Singh and A.K. Jha for the Respondent No. 4.

B The Judgment of the Court was delivered by

THOMAS, J. Leave granted.

Judicial restraint is a virtue. A virtue which shall be concommitant
of every judicial disposition. It is an attribute of a judge which he is obliged
C to keep refurbished time to time, particularly while dealing with matters
before him whether in exercise of appellate or revisional or other super-
visory jurisdiction. Higher courts must remind themselves constantly that
higher tiers are provided in the judicial hierarchy to set right errors which
could possibly have crept in the findings or orders of courts at the lower
tiers. Such powers certainly not for belching diatribe at judicial personages.
D in lower cadre. It is well to remember the words of a jurist that "a judge
who has not committed any error is yet to be born".

The context for making the aforesaid prefatory words is the grievance
expressed by the appellant Braj Kishore Thakur, a senior District &
E Sessions Judge of Bihar Judicial Service over the caustic and severe cen-
sure made against him by a single judge of the Patna High Court in an
Order cancelling the bail granted to two accused involved in an .offence
under Section 20(b)(i) of the Narcotic Drugs and Psychotropic Substances

F
Act, 1985, for short 'NDPS Act'. The aggrieved Sessions Judge moved the
High Court to have those disperaging remarks expunged but instead of
getting them erased learned single judge used the opportunity to reiterate
-
those deprecatory remarks with aggravated severity. Hence the said Session
Judge has come to this Court under Article 136 of the Constitution. We
granted special leave to him.

G The background is this: On 16.2.1995 some customs officials in Bihar
stopped and inspected an Ambassador car at Fahengola (in Kishan Ganj)
and detected 97 Kgs. of "non-duty paid Ganja" hidden in a false chamber
build inside the vehicle. The driver and two passengers of the car were
arrested and were later remanded to judicial custody. About 3 months
thereafter those three persons moved for bail and the application came up
H before the appellant who was Sessions Judge-cum-Special Judge, Purnea.
\
B.K. THAKUR v. U.O.L [THOMAS, J.) 423

He passed orders on 29.7.1995 rejetting bail for the driver and granting A
bail for the other two persons subject to certain conditions. This order was
challenged by the Collector of Customs, Patna before the High Court of
Patna. Learned Single Judge (Narayan Roy, J.) called for a report from
the appellant asto the circumstances under which bail was granted. (We
fail to appreciate how the learned single judge could have asked the B
subordinate judicial officer to sent up a report in defence of his judicial
order. Reasons in support of a judicial order can appear only in the order
itself and it is an unwholesome practice to compel a judicial officer to write
a report subsequently in defence of his conclusions.) Be that as it may -
learned single judge after considering the report passed the order cancell-
ing the bail granted to the aforesaid two persons and in that order made C

-- the following observations which have now become the subject of this
appeal.

"The learned Special Judge, therefore, in view of the stringent law
on the point should have taken care in not making haste, by
granting bail to the accused opposite parties and when the seized D
contraband was of a considerable magnitude, serious view of the
matter should have been taken and bail should not have been
granted so lightly believing the pica taken by the accused persons."

".. .it appears to me that bail has been granted for extraneous E
considerations".

"Before I part with lhis order, I would like to observe that the
learned Speciai Judge, who happens to be a seniormost Sessions
.Judge could not have passed the order impugned in a leisurely p
manner completely ignoring the provisions of Section 37 of the
NDPS Act. The acts of th~ learned Special Judge by granting bail
to accused opposite party Nos. 1 and 2 amounts to judicial indis-

- cretion and in view of his own admission as shown in his report
that he was not aware of the law on the point, he does not deserve
to remain as the Sessions Judge and he should be divested of his G
original powers. I, therefore, take a serious view of the matter and
place my displeasure on record."

When appellant moved for expunging the above remarks learned Single
Judge re-asserted those and further added thus : H
424 SUPREME COURT REPORTS (1997] 2 S.C.R.

A "Order dated 20.5.1996 making certain remarks against the
petitioner is self explanatory and speaks a volume against the
petitioner. The remarks made against the petitioner cannot be said
to be unwarranted as the same was passed in the peculiar facts
and· circumstances of the case, where the petitioner ignoring the
legal .norms dealt with the matter very casually and leisurely and
B granted bail to the accused persons."

Learned Single Judge went on to add :

"The observation of this Court that the learned Special Judge had
c granted bail for extraneous consideration, therefore, in my opinion,
is commensurate with the findings of this Court and the possibility
of extraneous consideration cannot be ruled out."

Before proceeding to consider the grievance of the appellant, a
glance through the two relevant provisions of the NDPS Act is of ad-
D vantage. The offence under Section 20(b)(i) of the Act reads thus :

"Whoever, in contravention· of any provision of this Act or any rule
1r order made or condition of licence granted thereunder -

(a) ....
E
(b) produces, manufactures, possesses, sells, purchases, transports,
imports inter-State, exports inter-State or uses cannabis, shall be
punishable -

(i) where such contravention relates to ganja or the cultivation of
F cannabis plant, with rigorous imprisonment for a term which may
extend to five years and shall also be liable to fine which may
extend to fifty thousand rupees."
" .

Section 37(1)(b) imposes restriction on the powers of the court in granting
G bail to persons accused of offences under NDPS Act. The material portion
of Section 37(1) reads thus : . ,

"Notwithstanding anything contained in the Code of Criminal Pro-
cedure, 1973 -

H (b) no person accused of an offence punishable for a term of
B.K. TIIAKUR v. U.0.l. [TIIOMAS, J.] 425

imprisonment of five years or more under this Act shall be released A
on bail or on his own bond unless -

(i) the Public Prosecutor has been given an opportunity to op-
pose the application for such release, and

(ii) where the Public Prosecutor opposes the application, the B
court is satisfied that there are reasonable ground for believ-
ing that he is not guilty of such offence and that he is not
likely to commit any offence while on bail."

This Court has observed in Narcotics Control Bureau v. Kishan Lal and C
Others, AIR (1991) SC 558 that even the power of High Court under
Section 439 of the Code of Criminal Procedure is subject to the limitations
contained in Section 37 of NDPS Act.

- As the order passed by the. learned Single Judge cancelling bail is
not in appeal before us it is not for us to consider the correctness or D
otherwise of the operative part of the order,. But since we are now con-
cerned with the justifiability of the impugned observations made against
the appellant we deem it appropriate to refer to the stand adopted by him
in defence of his own order. He invited our notice to the decision of a
Division Bench of the Patna High Court in Kamlesh Kumar v. State of E
Bihar, (1994) 2 PL.JR 600 in which it has been held that "when an accused
is charged with offence under Section 20(b)(i) of the NDPS Act the power
under s·ection 37(1)(b) is not to be attracted." The Division Bench in that
decision has made a reference to the decision of this Court in Kishan Lal's
case (supra).
F
Though this appeal is not is the occasion to consider the correctness
of the aforesaid dictum laid down by the Division Bench of Patna High
Court WC have to observe that all subordinate courts in the State of Bihar

-- are bound by the said legal position in Kamlesh Kumar's case. We are not
told of any decision of this Court taking a contrary view and hence the G
binding nature of the aforesaid ratio on the subordinate courts need not
be over-emphasized. We cannot assume that learned Single Judge was
unaware of the said legal position laid down by the same High Court
though he did not make any reference to it either in his order cancelling
the bail or in his subsequent order refusing to expunge the remarks. When
learned Single Judge castigated the appellant for being "ignorant of the law H
426 SUPREME COURT REPORTS [1997) 2 S.C.R.

A and was not aware of the latest rulings" it would have been desirable that
learned Single Judge had reminded himself of the legal position .laid down
by the same High Court on the very same subject. If the position of law
which is binding on the subordinate judiciary in Bihar was the above (as
laid down by the Division Bench in Kamlesh Kumar v. State of Bihar) there
was no justification at all for the learned Single Judge of the same High
B Court to observe that the appellant Special Judge had exceeded his juris-
diction in granting bail.

We have no hesitation in holding that the Sessions Judge was well
within the jurisdiction when he passed the order granting bail to the two
C persons, though it is a different matter whether the discretion was well
exercised by him.

When the appellant petitioned before the learned Single Judge to
expunge the extremely offensive imputation made against a judicial officer
that "it appear to me that bail has been granted for extraneous considera-
D tions", fairness required of him at least to put forward his reasons when he
chose to reiterate those remarks in the order now under challenge. It is
very unfortunate - we may say very distressing - that learned Single Judge
persisted in repeating those highly disperaging observations without any
justification whatsoever.
-
E According to the appellant, he has put in more than 30 years of
judicial service and he was promoted from one tier to the higher tier and
in 1992 he was promoted as District & Sessions Judge and in 1995 he was
granted Super-Time scale of pay. He expressed his deep felt mental pain
when inflicted with such castigations that he stands condemned for ever in
the eyes of his subordinates as also in the eyes of the members of the
F public. It was not only he, but the image of judiciary too would have
remained tarnished by hurling such castigations.

No greater damage can be caused to the administration of justice

G
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 aspertions 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
H restraint and adopt greater care when they are tempted to employ strong
B.K THAKUR v. U.O.I. [THOMAS, J.] 427

terms against lower judiciary. A

- A quarter of a century ago Gajendragadkar, J. (as he then was)
speaking for a bench of three judges of this Court, in the context of dealing
with the strictures passed by High Court against one of its subordinate
judicial officers (suggesting that · his decision was based on extraneous
considerations) stressed the need to adopt utmost judicial restraint against B
using strong language and imputation of corrupt motives against lower
judiciary more so "because the Judge against whom the imputations are
made. has no remedy in law to vindicate his position" (Ishwari Prasad
Mishra v. Mohammad Isa, [1963) 3 SCR 722). This Court had to repeat
such words on subsequent occasions also. In KP. Tiwari v. State of M.P., C
AIR (1994) SC 1031 this Court came across certain observations of a
learned Judge of the High Court casting strictures against a Judge of the
subordinate judiciary and the court used the opportunity to remind all
concerned that using intemperate language and castigating strictures at the
lower levels would only cause public respect in judiciary to dwindle. The
following observations of this Court need repetition in this context : D
"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 as\.de. That is one of the functions of the superior
courts. Our legal system acknowledges the fallibility of the judges E
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 has also to be remembered that
the lower judicial officers mostly work under a charged atmosphere
and are constantly under a psychological pressure with all the
contestants and their lawyers almost breathing down their necks F
more correctly up to their nostrils. They do not have the benefit
of a detached atmosphere of the higher courts to think coolly and
decide patiently. Every error, however, gross it may look, should
not, therefore, be attributed to improper motive."
G
Recently, we had to say the same thing though in different words in
Kashi Nath Roy v. State of Bihar, JT (1996) 4 SC 605 in a similar situation.
We then said thus :

"It cannot be forgotten that in our system, like elsewhere, appellate
and revisional courts have been set up on the pre-supposition that H
428 SUPREME COURT REPORTS (1997] 2 S.C.R.

A lower courts would in some measure of cases go wrong in decision.-
making, both on facts as also on law, and they have been knit-up
to correct those orders. The human element in justicing being an
important element, ccimputer-like functioning cannot be expected
...
of the courts; however hard they may try and keep themselves
precedent-trodden in the scope of discretions and in the manner
B
of judging. Whenever any such intolerable error is detected by or
pointed out to a superior court, it is functionally required to correct
that error and may, here and there, in an appropriate case, and in
a manner befitting, maintaining the dignity of the Court and
independence of judiciary, convey its message in its judgment to
c the officer concerned through a process of reasoning, essentially
persuasive, reasonable, mellow but clear, and result-orienting, but
rarely as a rebuke. Sharp reaction of the kind exhibited in the
afore-extraction is not in keeping with institutional functioning.
The premise that a Judge committed a mistake or an error beyond
the limits of tolerance, is no ground to inflict condemnation on the
D
Judge - Subordinate, unless there existed something else and for
exceptional grounds."

We are sorry to note that learned Single Judge did not remind
himself of the above precautions which time and again have been exhorted.
E When he made unjustifiable, unsavoury and scathing remarks on an un-
defcnded'Judge of the subordinate court he was only wounding the institu-
tion of judiciary.

In the interest of justice and fairness, we expunge all the offending
remarks made against the appellant in the order dated 20.5.1996.
F
The appeal is disposed of accordingly.

P.T.D. Appeal disposed o[