Holding

Observations against the subordinate magistrate were unnecessary, irrelevant, and harmful and must be expunged; the magistrate's actions, though misadvised, did not amount to misconduct.

Summary

The appellant, a Metropolitan Magistrate, complained that a Delhi High Court judgment contained disparaging observations against her, which later entered her confidential annual records and threatened her career. She sought expungement of those remarks under Article 136 of the Constitution, arguing they were irrelevant, unjustified, and harmful. The Supreme Court examined whether a superior court may criticize a subordinate judicial officer and, if so, whether such criticism must be necessary for the decision and meet standards of relevance, necessity, and non‑prejudice. Applying the tests laid down in earlier cases, the Court held that the High Court's observations were not essential to the judgment, were wholly irrelevant, and caused potential harm, warranting their removal. The Court also noted that the Magistrate's initiation of contempt and IPC proceedings, though ill‑advised, did not amount to misconduct. Consequently, the petition was allowed and the specified observations were ordered expunged, without affecting the High Court's substantive decision.

Issues considered

Whether observations made by a High Court against a subordinate judicial officer in its judgment can be expunged under Article 136/142 of the Constitution.
Whether such observations are necessary for the decision of the case and thus permissible.
Whether the Metropolitan Magistrate's initiation of contempt and IPC proceedings constituted misconduct.
What criteria must be satisfied for a court to order expungement of remarks.

Legislation cited

Code of Criminal Procedure, 1973s. 197, s. 482, s. 483
Constitution of Indias. 136, s. 142, s. 235
Contempt of Courts Act, 1971
Indian Penal Code, 1860s. 120-B, s. 201, s. 380

Subjects

judicial restraintexpungement of remarkssubordinate judiciarycontempt of courtsArticle 136High Court criticismjudicial disciplinenatural justice

Judgment

IN THE MATTER OF: 'K', A JUDICIAL OFFICER A

FEBRUARY 8, 2001

[DR. A.S. ANAND, CJ. AND R.C. LAHOTI, J.]

B
JZ1dicia/ Restraint :

JZ1dicia/ order-Remarks against sl/bordinate judge by Court of Sllperior
jurisdiction-Judicial restraint and discipline-Need for, emphasised-Held,
a judge is not expected to indulge. in criticising the conduct of the subordinate
judicial or quasi-judicial authority unless expression of opinion thereon C
becomes necesswy as a part of reasoning requisite for arriving at a conc!Z1sio11
necessary for deciding the main controversy-Dais in a collrt room not
properly built-Obstruction in the fimctioning of the coZ1rt-PZ1blic Works
Department officials non responsive-Metropolitan Magistrate initialing
contempt proceedings and taking cognisance of sZ1bstantive offences under D
the Indian Penal Code against erring officials-High Collrl making certain
observations against the Magistrate in its jlldicial order while quashing the
aforesaid proceedings-legality of-Held, such remarks were not necessary
for the decision of the case as an integral part thereof-Direction for
expunging the objectionable remarks-Such remarks which percolated into
the annual confidential rolls of the Metropolitan Magistrate also expllnged- E
Contempt of CoZ1rts Act, 1971-./ndian Penal Code, 1872-Sections 380,
201, 120-B.

Constitution of India, 1950 :

Articl.es 136, 142-Remarks against £1 subordinate jlldicial officer F
contained in jlldgement order of High Court-Expunging of-Jurisdiction of
Supreme Court.

Article 235-Administrative and disciplinary control of High Court
over subordinate judiciary-Role as a fi'iend, philosopher and gilide-
Jncorporating criticisms and observations against subordinate judicial officer G
in judicial pronouncements-Infirmities therein, enumerated-Alternative
+- appropriate course to follow on the administrative side suggested

Appellant is a judicial officer posted as Metropolitan Magistrate. A
dais was constructed in her court room by the Public Works Department H
959
960 SUPREME COURT REPORTS [200 Ij I S.C.R.

A during summer vacation when she was away from the.headquarters. Dais not
being properly built, caused obstruction in the functioning of the court. The
offidals concerned being non-responsive, appellant initiated proceedings
calling upon the officials to show cause why proceedings under the Contempt
of Courts Act be not drawn up and a reference be not made to the High Co'urt.
B During the pendency of these proceedings, the Public Works department
chopped off a wooden piece forming part of the dais and removed the same.
On these facts coming to the knowledge of the appellant, she took cognisance
of offences punishable under Sections 380, 201, 120-B of the Indian Penal
Code.

C The persons proceeded against preferred a petition before High Court
seeking quashing of both the aforesaid proceedings under the Contempt of
Courts Act and the Indian Penal Code. During the pendency of the petition
before the High Court, appellant having felt satisfied by the response of
officials concerned, directed the notice under the Contempt of Courts Act to
be discharged. To that extent, the petition filed before the High Court was
D rendered infructuous. Subsequently, the High Court directed the quashing of
the proceedings under the Indian Penal Code. While quashing the said
proceedings, the High Court made certain observations against the appellant
in its judicial order. The said observations so made later on found their way
into her annual confidential records. Aggrieved, the appellant filed the present ),
E appeal.

Allowing the appeal, the Court

HELD: I. Metropolitan Magistrate in initiating contempt proceedings
and taking cognisance of substantive offences under the Indian Penal Code
F against the officials of Public Works Department was not properly advised or
was at the worst indulging into a misadventure. Therefore to the extent of
quashing of the proceedings by the High Court no fault can be found and
certainly no one has come up to this Court complaining against the merits of
that part of the order of the high Court by which criminal proceedings have
G been quashed. Nevertheless, the ill advised move or misadventure of the
Metropolitan Magistrate was neither a misconduct nor an outcome of malice.
The facts and circumstances of the case point out that her only desire was to
make her court room functional. The remarks were not necessary for the
decision of the case by the High Court as an integral part thereof.1971-B-EI

H 2.1. The primary purpose of pronouncing a verdict is to dispose of the
IN THE MATTER OF 'K' A JUDICIAL OFFICER 961

matter in controversy between the parties before it. A judge is not expected to A
drift away from pronouncing upon the controversy, to sitting in judgment
over the conduct of the judicial and quasi-judicial authorities whose decisions
or orders are put in issue before him, and indulge in criticising and
commenting thereon unless the conduct of an authority or subordinate
functionary or anyone else than the parties comes of necessity under review B
and expression of opinion thereon becomes necessary as a part of reasoning
requisite for arriving at a conclusion necessary for deciding the main
controversy. (965-G-H; 966-AJ

Panchanan Banerji v. Upendra Nath Bhattachrji, AIR (1927) All 193;
Niranjan Patnaik v. Sashibhusan Kar and Anr., (1986) 2 SCR 569 and A.M. C
Mathur v. Pramod Kumar Gupta, (1990( 2 SCC 533, referred to.

Essays on Jurisprudence, Columbia Law Review, 1963 p.315, referred
to.

2.2. A subordinate judge faced with disparaging and undeserving D
remarks made by a Court of superior jurisdiction is not without any remedy.
He may approach the High Court involdng its inherent jurisdiction seeking
expunction of objectionable remarks. However, if a similar relief is sought
for against remarks or observations contained in judgment or order of High
Court the aggrieved judicial officer can, in exceptional cases, approach the
Supreme Court also invoking its jurisdiction under Article 136 and/or 142 E
of the Constitution. Any passage from an order or judgment may be expunged
or directed to be expunged subject to satisfying the following tests:- (i) that
the passage complained of is wholly irrelevant and unjustifiable; (ii) that its
retention on the records will cause serious harm to the persons to whom it
refers; (iii) that its expunction will not affect the reasons for the judgment or F
order. 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 G
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.
(967-C-D-E-F-G-HJ
Dr. Raghubir Saran v. State ofBihar and Anr., (1964( 2 SCR 330; State H
962 SUPREME COURT REPORTS [2001] l S.C.R.

A of Ul/ar Pradesh v. Mohammad Naim, 119641 2 SCR 363 and Philip William ·~
Ravanshawe Hardless v. Gladys Isabel Hardless and Ors., AIR (1940) Lahore
82, referred to.

3.1. High Courts have to remember that criticism and observations
touching a subordinate judicial officer incorporated in judicial
B pronouncements have their own mischievous infirmities. Firstly, the judicial
officer is condemned unheard which is violative of principles of natural justice.
Secondly, the harm caused by such criticism or observation may be incapable
of being undone. Thirdly, human nature being what it is, such criticism of a
judicial officer contained in the judgement of a higher court gives the
C 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
D the functioning of the judicial system. And last but not the least, the possibility
of a single or casual aberration of an otherwise honest, upright and righteous
judge being caught unawares in the net of adverse observations cannot be
ruled out. Such an incident would have a seriously demoralising effect not ).,
only on him but also on his colleagues. (969-B-H I

E 3.2 The conduct of a judicial officer, unworthy of him having come to
the notice ofa judge of the High Court hearing a matter on the judicial side,
the lis may be disposed of by pronouncing upon the merits thereof as found
by him but avoiding in the judicial pronouncement criticism of, or observations
on the 'conduct' of the subordinate judicial officer who had decided the case
under scrutiny. Simultaneously but separately in-office proceedings may be
F
drawn up inviting attention of the Chief Justice of the High Court to the facts
describing the conduct of the subordinate judge concerned by sending a
confidential letter or note to the Chief Justice. It will thereafter be open to
the Chief Justice to deal with the subordinate judicial officer either at his
own Level or through the inspecting judge or by placing the matter before
G 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. (970-A-B-C-Dj

'JUDGES' by David Pannick (Oxford University Press) Publication,
H 1987, referred to.
x

IN THE MATTER OF ·K" A JUDICIAL OFFICER [LAHOTI • .I.] 963
'--'
~ CRIMINAL APPELLATE JURISDICTION: Criminal appeal No. 165 A
of 2001.

From the Judgment and Order dated 19.1.2000 of the Delhi High Court
in Cr!. M. No. 1984 of 1999.

Kapil Sibal, R.P.Lao, Sanjay Lao, Chirag M. Shroff and M.N. Shroff for B
the Appellant.

Sanjay K. Kaul and Ms. A. Subhashini for the Respondents.

The Judgment of the Court was delivered by
c
R.C. LAHOTI, J. This special leave petition under Article 136 of the
Constitution of India filed by a judicial officer, seeks expunging of remarks
detrimental to her, contained in the judgment of the High court disposing of
a criminal miscellaneous petition under Section 482 of the code of Criminal
Procedure, 1973 filed by the accused persons seeking quashing of certain D
criminal proceedings.

Leave granted.

The backdrop of events has an unusual setting. The appellant is a
serving judicial officer posted as Metropolitan Magistrate. The courtroom E
wherein the appellant held her court was not properly furnished and not"only
her courtroom but other court-rooms located in the same building also seriously
lacked in infrastructural 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 F
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 G
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 oi Courts Act, 1971 be not drawn up and a reference be H
964 SUPREME COURT REPORTS [2001] I S.C.R.

A not made to the High Court. During the pendency of these proceedings the ~
PWD people chopped off a wooden piece forming part of the dais and
removed the same. On these facts coming to the knowledge of the appellant
she took cognisance of offences punishable under sections 380, 201, 120-8
of the Indian Penal Code and issued process requiring presence of the
B accused persons before her. The persons proceeded against preferred a petition
under section 482 of the Code of Criminal Procedure read with Article 227 of
the Constitution seeking quashing of both the proceedings-one under the
Contempt of Courts Act and the other in the criminal case wherein cognisance
for substantive offences under the IPC was taken. During the pendency of
the petition before the High Court, the learned Metropolitan Magistrate having
C felt satisfied by the response of the PWD officials. directed the notice under
the Contempt of Courts Act to be discharged and to that extent the petition
filed before the High Court was rendered infructuous. The hearing before the
High Court then remained confined to the question of quashing the cognisance
of the offences under Sections 380,201, 120-8 IPC taken by the learned
Metropolitan Magistrate. After hearing the leaned counsel for the accused
D persons and the learned counsel for the State, the High court has directed
the proceedings to be quashed. The operative part of the order of the High
Court reads as under:-

"Thus prima facie, no offence either under sections 380 or 20 I or
E 1208 IPC is made out against the petitioners. [The manner in which
the cognisance 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 petition carried out as desired by her]
which matter could well be taken up by the Judge Incharge .................... ./
F District & Sessions Judge with the appropriate authority in CPWD on
administrative side. In passing the impugned order dated Ist July,
1999 the Magistrate had thus exceeded the jurisdiction [defying all
judicial norms]. This order [being gross abuse of process of court],
therefore, deserves to be set aside under section 483 Cr.P.C. Having
G arrived at this conclusion it is not necessary to examine the plea
raised on petitioner's behalf regarding the applicability of section 197
Cr.P.C.

Consequently, the petition is allowed and the criminal proceedings
under Sections 380/20I11208 IPC initiated against the petitioners by
H the Magistrate, are hereby quashed."
x

IN THE MATTER OF 'K' A JUDICIAL ,OFFICER [LAHOTI, J.] 965
With the above said order the controversy so far as it related to the A
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,

During the courts of hearing we were informed by Shri Kapil Sibal, the B
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.

Several cases are coming to our notice wherein observations are being C
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 Court seeking expunging
of remarks or observations made and sometimes strictures passed against D
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 adrriirtistering justice should be bold
and feel fearless while acting judicially and giving expression to his views and E
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 F
of judicial independence. However, sobriety, cool, calm and poise should be
reflected in every action and expression of a judge.

The primary purpose of pronouncing a verdict is to dispose of the
matter in controversy between the parties before it. A judge is not expected G
to drift away from pronouncing upon the controversy, to sitting in judgment
over the conduct of the judicial and quasi-judicial authorities whose decisions
or orders are put in issue before him, and indulge into criticising and
· commenting thereon unless the conduct of an authority or subordinate
functionary or anyone else than the parties comes of necessity under review
and expression of opinion thereon going to the extent of commenting or H
966 SUPREME COURT REPORTS [200 I] I S.C.R.

A criticising becomes necessary as a part of reasoning requisite for arriving at
a conclusion necessary for deciding the main controversy or it becomes
necessary to have animadverted thereon for the purpose of arriving at a
decision on an issue involved in the litigation. This applies with added force
when the superior court is hearing an appeal or revision against an order of
B a subordinate judicial officer and feels inclined to animadvert on him. The
wisdom of a superior judge itching for making observations on a subordinate
judge before ventilating into expression must pause for a moment and read
the counsel of Cardozo- "Write an opinion, and read it a few years later when
it is dissected in the briefs of counsel. You will learn for the first time the
limitations of the power of speech, or, if not those of speech in general, at
C 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).

D 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 Sulairnan, J. in Panchanan Banerji
v. Upendra Nath Bhauacharji, AIR (1927) All 193 was cited with approval
E before th is Court in Niranjan Palnaik v. Sashibhusan Kar and Anr., [ 1986)
2 SCR 569.

"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
F or of a counsel before it."

Th is Court went on to add:-

"It is, therefore, settled law that harsh or disparaging remarks are not
to be made against persons and authorities whose conduct comes
G into consideration before Court of law unless it is really necessary for
the decision of the case, as an integral part thereof to animadvert on
that conduct. We hold that the adverse remarks made against the
appellant were neither justified nor called for.

Having regard to the limited controversy in the appeal to the High
H Court and the hearsay nature of evidence of the appellant it was not
IN THE MATTER OF ·K' A JIJDICIAL OFFICER (LAHOTI, .I.] 967

at all necessary for the Appellate Judge to have animadverted on the A
conduct of the appellant for the purpose of allowing the appeal of the
first respondent. Even assuming that a serious evaluation of the
evidence of the appellant was really called for in the appeal the
remarks of the learned Appellate Judge should be in conformity with
the settled practice of Courts to observe sobriety, moderation and
reserve. We need only remind that the higher the forum and the B
greater the powers, the weater the need for restrain and the more
mellowed the reproach should be."

A subordinate judge faced with disparaging and undeserving remarks
made by a Court of superior jurisdiction is not without any remedy. He may C
approach the High Court invoking its inherent jurisdiction seeking expunction
of objectionable remarks which jurisdiction vests in the High Court by virtue
of its being a court of record and possessing inherent powers as also the
power of superintendence. This view is settled by the law laid down in Dr.
Raghubir Saran v. State of Bihar and Anr., [ 1964] 2 SCR 330. However, if a
similar relief is sought for against remarks or observations contained in D
judgment or order of High Court the aggrieved judicial officer can, in exceptional
cases, approach this court also invoking its jurisdiction under Article 136 and/
,.\_ or 142 of the Constitution. With the law laid down by this Court in Dr.
Raghubir Saran (supra) and the State of Uttar Pradesh v. Mohammad Nairn,
[ 1964] 2 SCR 363 it is well-settled that the power to expunge remarks exists E
for redressing a kind of grievance for which the law does not provide any
other remedy in express tenns though it is an extraordinary power. Any
passage from an order or judgment may be expunged or directed to be
expunged subject to satisfying the following tests:- ( i) that the passage
complained of is wholly irrelevant and unjustifiable; (ii) that its retention on
the records will cause serious harm to the persons to whom it refers; (iii) that F
its expunction will not affect the reasons for the judgment or order.

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 G
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 Mohmmad H
968 SUPREME COURT REPORTS [2001] I S.C.R.

A Nairn (supra)].

It was so said by a Special Bench of three-Judges presided over by Tek
Chand, J. in Philip William Ravanshawe Hardless v. Gladys lqabel Hardless
and Ors., AIR [I 940] Lahore 82 :

B "A passage which is not necessary to the conclusion of the Judge
nor even necessary to his arguments and is likely to militate seriously
against party's earning a living in his profession should be expunged
from the judgment."

In A. M. J\fathur v. Pramod Kumar Gupta, [ 1990] 2 SCC 533 this Courl
C sounded a note of caution emphasising a general principle of highest imporlance
to the proper·administration of justice that derogatory remarks ought not to
be make against persons or authorities whose conduct comes into
consideration unless it is absolutely necessary for the decision of the case
to animadverl on their conduct and said :-
.D "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 constant
theme of our judges. This quality in decision making is as much
necessary for judges to command respect as to protect the
E independence of the judiciary. Judicial restrain in this regard might
better be called judicial respect, that is, respect by the judiciary.
Respect to those who come before the courl as well to other co-
ordinate branches of the State, the executive, and legislature. There
must be mutual respect. When these qualiiies fail or when litigants
and public believe that the judge has failed in these qualities, it will
F be neither good for the judge nor for the judicial process."

In the case at hand we are concerned with the observations made by
the High Courl against a judicial officer who is a serving member of subordinate
judiciary. Under the constitutional scheme control over the district courts and
G courts subordinate thereto has been vested in the High Courts. The control
so vested is administrative, judicial and disciplinary. The role of High Court
is also of a friend, philosopher and guide of judiciary subordinate to it. The
strength of power is not displayed solely in cracking a whip on errors,
mistakes or failures; the power should be so wielded as to have propensity
to prevent and to ensure exclusion of repetition if committed once innocently
H or unwittingly. "Pardon the error but not its repetition". The power to control
IN THE MATTER OF 'K' A JUDICIAL OFFICER (LAHOTI, J.) 969
is not to be exercised solely by welding a teacher's. cane; the members of A
subordinate judiciary look up at the High Court for the power to control to
be exercised with parent-like care and affection. The exercise of statutory
jurisdiction, appellate or revisional and the exercise of constitutional power
to control and supervise the functioning of the district c·ourts and courts
subordinate thereto empowers the High Court to formulate an opinion and B
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 had observations touching a subordinate judicial officer incorporated
in judicial pronouncements have their own mischievous infirmities. Firstly the C
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 D
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 administrative side and
apprised of overall meritorious performance of the subordinate judge, may
irretrievably regret his having made those observations on judicial side the E
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 F
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 G
practising before him. Look at the embarrassment involved. And last but not
the leart, the possibility of a single or casual aberration of an otherwise
honest, upright and righteous judge being caught unawares in the net of
adverse observations cannot be ruled out. Such an incident would have a
seriously demoralising effect not only on him but also on his colleagues. If
all this is avoidable why it should not be avoided? H
970 SUPREME COURT REPORTS [2001] 1 S.C.R.

A We must not be understood as meaning that any conduct of a
subordinate judicial officer unbecoming of him and demanding a rebuff should
be simply overlooked. But there is an alternate safer and advisable course
available to choose. The conduct of a judicial officer, unworthy of him, having
come to the notice of a judge of the High Court hearing a matter on the
judicial side, the lis may be disposed of by pronouncing upon the merits
B thereof as found by him but avoiding in the judicial pronouncement criticism
of, or observations on the 'conduct' of the subordinate judicial officer who
had decided the case under scrutiny. Simultaneously but separately in-office
proceedings may be drawn up invi!ing attention of Hon'ble Chief Justice to
the facts describing the conduct of the subordinate judge concerned by
C sending a confidential letter or note to the Chief Justice. It will thereafter be
open to the Chief Justice to deal with the subordinate judicial 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
D 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.

The remarks made in a judicial order of the High Court against a member
E 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 :

F "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 other side of the court, and how
perhaps a lapse of manners or a momentary impatience could undermine
confidence in his decision."
G
Though the learned author observes that such a private discussion,
uncommunicated to the complainant, would be unlikely to remove his sense
of grievance, the resolution is to be found in the same book elsewhere in the
following passage (though in a different context) :-

H "Lord bridge gave a similar explanation in 1984: 'If one Judge in a
IN THE MATTER OF 'K' A .JUDICIAL OFFICER [LAHOTI, J.] 971

thousand acts dishonestly within his jurisdiction to the determinant A
of a party before him, it is less harmful to the health of society to leave
that party without a remedy than that nine hundred and ninety-nine
honest judges should be harassed by various litigation alleging malice
in the exercise of their proper jurisdiction'.

Reverting back to the case at hand, may be that the learned Metropolitan B
Magistrate in initiating contempt proceedings and taking cognisance of
substantive offences under the Indian Penal Code against the officials of
Public Works Department was not properly advised or was at the worst
indulging into a misadventure and therefore to the extent of quashing of the
proceedings by the High Court we may not find fault and certainly no one C
has come up to this Court complaining against the merits of that part of the
order of the High Court by which criminal proceedings have been quashed.
Nevertheless, the ill advised move or misadventure of the learned Metropolitan
..j. Magistrate was neither a misconduct nor an outcome of malice. Though she
acted in a way which did not meet the approval of the High Court, the facts
and the circumstances of the case point out that her only desire was to make D
her court room functional. Probably she felt aggrieved, rather agitated, by the
apathy of the Public Works Department people who were taking the things
too easy unmindful of the practical difficulties faced by the presiding judge
occupying the courtroom and discharging judicial functions. The fact remains
l that the observations were made by the High Court without affording the E
Metropolitan Magistrate and opportunity of explaining or defending herself.
The remarks were not necessary for the decision of the case by the High
Court as an integral part thereof. Animadverting on the conduct of the learned
Metropolitan Magistrate was not a necessity for the exercise by the High
Court of inherent power or the power of superintendence to quash the
proceedings initiated by the learned Metropolitan Magistrate. Expunging of F
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.

We must peace on record the very its stand taken by Shri Sanjay Kaul,
the learned senior counsel for the High Court, who told us that he was G
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 it; the High Court neither
opposes nor supports the appellant's prayer; its stand is neutral.
For the foregoing reasons the petition is allowed. The following portions H
972 SUPREME COURT REPORTS [2001] I S.C.R.

A occurring in the judgment of the High Court are directed to be expunged:-
[The manner in which the cognisance 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 petition
B carried out as desired by her]

[defying all judicial norms]

[being gross abuse of process of court]

The petition stands disposed of accordingly. Needless to say the above-
c said observations having been directed to be expunged if the said observations
have percolated into the annual confidential rolls of the learned Metropolitan
Magistrate the same shall also stand expunged for the foundation thereof has
itself ceased to exist. ·•

D M.P. Appeal allowed.