Holding

Personal adverse observations against a subordinate judicial officer embedded in a judicial order are impermissible and must be expunged; the High Court exceeded its jurisdiction.

Summary

The appellant, an Additional District and Sessions Judge, appealed to the Supreme Court seeking expungement of adverse remarks recorded by the Delhi High Court in its order dated 2 March 2023. The remarks criticized the appellant’s conduct in rejecting an anticipatory bail application and directing inquiries against police officers, describing his actions as a ‘judicial misadventure’ and ‘inexorable quest’. The core issue was whether a High Court may embed personal criticism of a subordinate judicial officer in a judicial order and whether such observations can be set aside under its supervisory jurisdiction. The Court examined the limits of Article 227 of the Constitution and Section 482 of the CrPC, emphasizing that criticism of a judge’s personal conduct must be confined to administrative proceedings, not judicial pronouncements. Relying on precedents such as State v. Mohd Naim, Re ‘K’, and others, the Court held that the High Court overstepped its jurisdiction and that the remarks must be expunged. Consequently, the Supreme Court allowed the appeals and ordered the removal of the adverse observations.

Issues considered

Whether a High Court may record personal adverse observations against a subordinate judicial officer in its judicial order.
Whether such observations can be expunged under the High Court’s supervisory powers under Article 227 of the Constitution and Section 482 of the CrPC.
Whether the High Court exceeded its jurisdiction by directing administrative actions against the appellant within a judicial pronouncement.

Legislation cited

Code of Criminal Procedure, 1973s. Section 41A, s. Section 482, s. Section 561-A
Constitution of Indias. Article 227
Delhi High Court Rules and Orders
Indian Penal Code, 1860s. Section 177, s. Section 34, s. Section 380, s. Section 411

Headnote

Issue for Consideration The appellant-Judicial Officer has preferred these appeals for expunging adverse findings/remarks recorded against him in the impugned order dated 02.03.2023 by the Delhi High Court. Headnotes† Judicial Service – Expunging of adverse Officer passed some strict orders against police officials – He pointed out flaws in the investigation and failure of the police officials – Writ petition – The High Court directed all the remarks made against the IO & SHO expunged and recorded findings/remarks

Subjects

Judicial ServiceJudicial OfficerErroneous ordersExpunge uncalled and unwarranted observationsAdverse comments on the personal conduct and calibre of the Judicial OfficerAdministrative side

Judgment

[2024] 11 S.C.R. 861 : 2024 INSC 888

Sonu Agnihotri
v.
Chandra Shekhar & Ors.
(Criminal Appeal No(s). 388-389 of 2024)
22 November 2024
[Abhay S. Oka,* Ahsanuddin Amanullah and
Augustine George Masih, JJ.]

Issue for Consideration
The appellant-Judicial Officer has preferred these appeals for
expunging adverse findings/remarks recorded against him in the
impugned order dated 02.03.2023 by the Delhi High Court.

Headnotes†
Judicial Service – Expunging of adverse findings/remarks –
Appellant-Judicial Officer passed some strict orders against
police officials – He pointed out flaws in the investigation
and failure of the police officials – Writ petition – The High
Court directed all the remarks made against the IO & SHO
expunged and recorded findings/remarks against the appellant
– Propriety:
Held: The High Court has jurisdiction u/Art. 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 – 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 – It is settled

* Author
862 [2024] 11 S.C.R.

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that 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 – Thus, the
High Court could not have used a judgment on the judicial side to
advise individual Judicial Officer – Therefore, the prayer made by
the appellant for expunging remarks will have to be acceded to.
[Paras 15, 17]

Case Law Cited
State of U.P. v. Mohd. Naim [1964] 2 SCR 363 : 1963 SCC OnLine
SC 22; ‘K’, A Judicial Officer [2001] 1 SCR 959 : (2001) 3 SCC
54 – relied on.
V.K. Jain v. High Court of Delhi through Registrar General and
Ors. [2009] 11 SCR 907 : (2008) 17 SCC 538; K.P. Tiwari v. State
of M.P. [1993] Supp. 3 SCR 497 : (1994) Supp. 1 SCC 540; Ajit
Kumar v. State (NCT of Delhi) 2022 SCC OnLine Del 3945; Dayal
Singh and Ors. v. State of Uttaranchal [2012] 10 SCR 157 : (2012)
8 SCC 263; All India Judges’ Association (3) and Ors. v. Union of
India and Ors. [2002] 2 SCR 712 : (2002) 4 SCC 247 – referred to.

List of Acts
Delhi High Court Rules and Orders

List of Keywords
Judicial Service; Judicial Officer; Erroneous orders; Expunge
uncalled and unwarranted observations; Adverse comments on the
personal conduct and calibre of the Judicial Officer; Administrative
side.

Case Arising From
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No(s).
388- 389 of 2024
From the Judgment and Order dated 02.03.2023 and 09.05.2023
of the High Court of Delhi at New Delhi in CRLMC No. 962 of 2023
and CRLMA No. 12378 of 2023 respectively
[2024] 11 S.C.R. 863

Sonu Agnihotri v. Chandra Shekhar & Ors.

Appearances for Parties
Sagar Suri, Kabir Sagar Ghosh, Vivek Narayan Sharma,
Ms. Shruti Priya Mishra, Ms. Mahima Bhardwaj Kalucha, Advs.
for the Appellant.
Brijender Chahar, S.V Raju, A.S.Gs., Ms. Nidhi Jaswal, M/s. Aura &
Co., Mukesh Kumar Maroria, Ms. Shreya Jain, Ms. Ameyavikrama
Thanvi, Amit Sharma B, Jagdish Chandra Solanki, Neeraj Shekhar,
Mrs. Kshama Sharam, Rajesh Maurya, Aditya Goyal, Advs. for
the Respondents.

Judgment / Order of the Supreme Court

Judgment

Abhay S. Oka, J.

1. The appellant is serving as an Additional District and Sessions Judge
in Delhi judicial service. The appellant has preferred these appeals
for expunging adverse findings/remarks recorded against him in
paragraphs 13 and 14 of the first impugned order dated 2nd March
2023 by the Delhi High Court. The appellant moved an application
before the Delhi High Court for expunging the remarks in paragraphs
11 to 14 of the first impugned order dated 2nd March 2023. By an
order dated 9th May 2023, the said application was rejected by the
High Court. This is the second impugned order.

FACTUAL ASPECTS
2. The appellant was dealing with an application for anticipatory bail filed
by one Vikas Gulati @ Vicky in FIR No. 221/2022 registered for the
offences punishable under Sections 380 and 411 read with Section
34 of the Indian Penal Code (for short, ‘the IPC’) with Defence Colony
Police Station. The appellant had earlier rejected another application
for anticipatory bail made by co-accused Sunita and Raj Bala on
2nd January 2023. The anticipatory bail application of Vikas Gulati
came up before the appellant on 21st January 2023. By a detailed
order, the appellant rejected the said application. While rejecting the
application, the appellant made certain adverse observations about
the conduct of the police officers and issued certain directions. The
following are the observations made by the appellant in the order:
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“Perusal of police file shows that after case diary of
23.12.2022, the next day on which case diary was written
by IO is of date 04.01.2023. IO has not written any case
diary for date 02.01.2023 on which date, anticipatory bail
applications of co-accused Sunita and Raj Bala were
dismissed. IO has written in case diary of 04.01.2023 that
notices U/sec 41 A Cr. P. C were issued to co-accused
Sunita and Raj Bala and all this was apprised to SHO PS
Defence Colony.
It is surprising that despite opposing anticipatory bail
applications of co-accused Sunita and Raj Bala and
submitting before court that their custody is required for
recovery of stolen sarees, IO instead of arresting them
made them join investigation after serving notices U/sec
41A Cr. P. C. There was no need to oppose anticipatory
bail applications of co-accused Sunita and Raj Bala in case,
their custody was not required by IO. When police has
opposed anticipatory bail applications of co-accused Sunita
and Raj Bala before court but made them join investigation
by serving notice U/sec 41A Cr. P.C, it appears that there
is something fishy on part of police.
……………………..................……………………………..”
(emphasis added)

After making the above observations, the appellant dealt with the
merits of the bail application and concluded that the accused before
him was not entitled to the relief of anticipatory bail. Thereafter, the
appellant observed thus:
“From conduct of IO, it appears that he is not carrying
out investigation in a proper manner and there is
something more written on wall than visible.”
(emphasis added)

3. The appellant observed that despite so many orders passed by the
court, the updated status of cases pending against the accused
had not been mentioned in the previous involvement report of the
accused filed, along with a reply to the anticipatory bail application.
Thereafter, the appellant issued the following directions:
[2024] 11 S.C.R. 865

Sonu Agnihotri v. Chandra Shekhar & Ors.

“Issue show cause notice to SHO PS Defence Colony
and IO HC Raj Kumar U/sec 177 IPC for furnishing false
information to this court through DCP, South for 31.01.2023.
Let copy of order be sent to DCP, South to inquire
about role of IO as well as SHO PS Defence Colony in
investigation of present case in view of observations
of this court as have come in this order with direction
to file Action Taken Report against the erring officials
and file report in this regard before this court on
31.01.2023.
Let explanation be sought from CP, Delhi as to why SCRB
record is not being updated till date despite direction
of this court way back about one and half years ago in
FIR No. 16/2018, PS Govind Puri for 31.01.2023 with
direction to fix responsibility of concerned official for
failure to comply with the same. It is notable that once,
punishment of censure has already been awarded to
defaulting SHOs and advisory has been issued to all
defaulting ACPs as per explanation earlier called from
CP, Delhi and reports furnished by DCP, South and DCP,
South-East on behalf of CP, Delhi in another matter but
still, there is no improvement which practically shows
that even higher hierarchy in police has failed to instill
discipline in Delhi Police.
Let copy of order be sent to CP, Delhi for information and
compliance.
Let copy of order be sent to SHO PS Defence Colony for
reference and compliance.”
(emphasis added)

4. Further order was passed by the appellant on 31st January 2023 in
which it was observed that though the appellant had asked DCP
(Deputy Commissioner of Police), South to hold an inquiry about
the role of Investigating Officer (IO) as well as Station House Officer
(SHO) of Defence Colony Police Station, only show cause notices of
censure have been issued to the officers. The appellant observed that
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the report of DCP, South, was silent about the observation made in
the earlier order that there was something fishy in the investigation.
Therefore, the appellant observed that the order dated 21st January
2023 has not been taken into consideration by the DCP, South.
Hence, the appellant directed the Commissioner of Police, Delhi,
to conduct a vigilance inquiry against the IO and SHO of Defence
Colony Police Station. However, the appellant dropped the show
cause notice issued to IO and SHO under the order dated 21 st
January 2023 for showing cause why they should not be prosecuted
under Section 177 of the IPC.
5. The IO and SHO filed a petition under Section 482 of the Code of
Criminal Procedure, 1973 (for short, ‘the CrPC’) for expunging the
remarks made against them in the orders dated 21st January 2023 and
31st January 2023. A prayer was also made to set aside the direction
issued to the Commissioner of Police, Delhi to hold vigilance inquiry
against them. By the first impugned order, the learned Single Judge
of the High Court directed that all remarks made against the IO and
SHO in the orders dated 21st January 2023 and 31st January 2023
shall stand expunged. Even the directions issued by the appellant
against the Commissioner of Police and the Deputy Commissioner
of Police were ordered to be deleted.
6. As seen from the grounds taken in the appeals and written
submissions dated 30th September 2024, the appellant’s grievance
is about remarks recorded against him in paragraphs 13 and 14 of
the first impugned order. The said remarks are as follows:
“13. Not only are such remarks unnecessary but also
could have serious implications on the careers of public
servants, particularly for what seems in the facts and
circumstances as perfunctory issues which have no huge
negative impact on the actual administration of the criminal
justice process. As discussed above, the Ld. ASJ ought
not to have embarked on an inexorable quest when
his original concern had been suitably addressed. The
remarks and the phraseology used by the Ld. ASJ is
summary in nature, penal in its scope, stigmatizing in
its tone and tenor and as already motioned, beyond
the ken of expected judicial conduct. In these facts
and circumstances it is directed that all remarks against
[2024] 11 S.C.R. 867

Sonu Agnihotri v. Chandra Shekhar & Ors.

the petitioners in orders dated 21st January, 2023 and
31st January, 2023 passed by Ld., Additional Sessions
judge, South East, Saket Courts, New Delhi in Bail Appl.
No. 202/2023 shall be expunged and all directions for
conducting enquiries and explanations by the DCP or
the Commissioner of Police shall be recalled and stand
deleted from the said orders.
14…….............................……………………………………
……… It is expected therefore that the Ld. ASJ would be
circumspect and exercise care and caution in future
before embarking on these judicial misadventures.”
7. We must note here that the appellant applied for impleading the
High Court of Delhi as a party through its Registrar General. The
said application was allowed. A short reply was filed on behalf of the
High Court by O.S.D. (Rules and Litigation) in which reliance was
placed on Rule 6, Part H, Chapter I of Volume III of the High Court
Rules and Orders. Rule 6 provided that it is undesirable for courts
to make remarks censuring the action of police officers unless such
remarks are strictly relevant to the case. It also provided that there
should not be any over-alacrity on the part of Judicial Officers to
believe anything and everything against the police. Prima facie, we
were of the view that this Rule interferes with the discretion available
to the judges. It is unnecessary for us now to deal with Rule 6 as a
document has been placed on record by the learned ASG appearing
for the High Court that the Rule Committee of the High Court has
approved the deletion of Rule 6 and the approval of the Hon’ble
Governor has been sought for the deletion.

SUBMISSIONS
8. Learned counsel appearing for the appellant has invited our
attention to factual aspects of the case dealt with by the appellant,
which warranted the appellant to pass strict orders against the
Police Officers and issue directions referred to above. He pointed
out that the appellant did not take forward the show cause notice
issued to the IO and SHO, calling upon them to show cause as to
why criminal law should not be set in motion against them for the
offence punishable under Section 177 of the IPC. He pointed out
that all that the appellant did was point out flaws in the investigation
and the failure to update SCRB data. He submitted that there
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was non-compliance with the standard operating procedure dated
29th January 2021 issued by the Office of Commissioner of Police
of Delhi, through Deputy Commissioner of Police, on this behalf. He
submitted that nothing is wrong if the appellant criticises the IO for
not properly maintaining the case diary.
9. Coming to the remarks made in the first impugned order, he relied
upon decisions of this Court in the case of V.K. Jain v. High Court
of Delhi through Registrar General and Ors.,1 K.P. Tiwari v. State
of M.P.2 and in Re: ‘K’, A Judicial Officer.3 He submits that the
remarks against the appellant in paragraphs 13 and 14 of the first
impugned order deserve to be expunged. He submitted that in the
first impugned order, the High Court relied upon its own decision
in the case of Ajit Kumar v. State (NCT of Delhi),4 which in turn
relies upon Rule 6, which has been now deleted.
10. He submitted that due to the adverse remarks against the appellant
in the first impugned order, the unblemished career of the appellant
as a Judicial Officer is likely to be adversely affected. He also invited
our attention to observations made by this Court in the case of Dayal
Singh and Ors. v. State of Uttaranchal.5
11. The learned counsel representing the State has assisted the Court
by pointing out the law on this aspect.

CONSIDERATION OF SUBMISSIONS
12. There are two parts of the first impugned order. The first part concerns
expunging the observations and findings recorded by the appellant
against the IO and SHO and setting aside the direction issued by
the appellant to the Commissioner of Police for holding an inquiry.
The second part concerns the adverse observations/remarks made
in paragraphs 13 and 14. As far as the first part is concerned, the
appellant cannot make any grievance. The appellant’s grievance
must be confined only to the second part.

1 [2009] 11 SCR 907 : (2008) 17 SCC 538
2 [1993] Supp. 3 SCR 497 : (1994) Supp. 1 SCC 540
3 [2001] 1 SCR 959 : (2001) 3 SCC 54
4 2022 SCC OnLine Del 3945
5 [2012] 10 SCR 157 : (2012) 8 SCC 263
[2024] 11 S.C.R. 869

Sonu Agnihotri v. Chandra Shekhar & Ors.

13. In the case of State of U.P. v. Mohd. Naim,6 in paragraph 11 this
Court held thus:
“11. The last question is, is the present case a case of
an exceptional nature in which the learned Judge should
have exercised his inherent jurisdiction under Section
561-A CrPC in respect of the observations complained
of by the State Government? If there is one principle of
cardinal importance in the administration of justice, it is
this: the proper freedom and independence of judges and
Magistrates must be maintained and they must be allowed
to perform their functions freely and fearlessly and without
undue interference by any body, even by this Court. At the
same time it is equally necessary that in expressing
their opinions Judges and Magistrates must be guided
by considerations of justice, fair-play and restraint.
It is not infrequent that sweeping generalisations
defeat the very purpose for which they are made. It
has been judicially recognised that in the matter of making
disparaging remarks against persons or authorities whose
conduct comes into consideration before courts of law in
cases to be decided by them, it is relevant to consider (a)
whether the party whose conduct is in question is before
the court or has an opportunity of explaining 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. It has also
been recognised that judicial pronouncements must
be judicial in nature, and should not normally depart
from sobriety, moderation and reserve.”
(emphasis added)

These observations must be borne in mind by every Judge.
14. In the case of in Re: ‘K’, A Judicial Officer,3 in paragraphs 7 and
8, this court observed thus:

6 [1964] 2 SCR 363 : 1963 SCC OnLine SC 22
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“7. A Judge entrusted with the task of administering
justice should be bold and feel fearless while acting
judicially and giving expression to his views and
constructing his judgment or order. It should be
no deterrent to formation and expression of an
honest opinion and acting thereon so long as it is
within four-corners of law that any action taken by
a subordinate judicial officer is open to scrutiny in
judicial review before a superior forum with which its
opinion may not meet approval and the superior court
may upset his action or opinion. The availability of
such fearlessness is essential for the maintenance of
judicial independence. However, sobriety, cool, calm
and poise should be reflected in every action and
expression of a Judge.
8. 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 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 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
and expression of opinion thereon going to the extent of
commenting or 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 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 all events your
own. All sorts of gaps and obstacles and impediments
[2024] 11 S.C.R. 871

Sonu Agnihotri v. Chandra Shekhar & Ors.

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.”
In paragraph 15, this Court specifically dealt with the legality of
observations made by the High Court against a Judicial Officer who
was a serving member of the judiciary. Paragraphs 15 to 17 are
material, which read thus:
15. In the case at hand we are concerned with the
observations made by the High Court against a judicial
officer who is a serving member of subordinate judiciary.
Under the constitutional scheme control over the district
courts and 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 or unwittingly. “Pardon the
error but not its repetition”. The power to control is not to be
exercised solely by wielding a teacher’s cane; the members
of subordinate judiciary look up to 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 courts
and courts subordinate thereto empowers the High Court
to formulate an opinion and 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 and observations touching a subordinate
judicial officer incorporated in judicial pronouncements
have their own mischievous infirmities. Firstly, the
judicial officer is condemned unheard which is
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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 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 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 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 should
it not be avoided?
16. We must not be understood as meaning that any
conduct of a subordinate judicial officer unbecoming
[2024] 11 S.C.R. 873

Sonu Agnihotri v. Chandra Shekhar & Ors.

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 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 inviting
attention of Hon’ble Chief Justice 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 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 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.
17. The remarks made in a judicial order of the High
Court against a member 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:
“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
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perhaps a lapse of manners or a momentary impatience
could undermine confidence in his decision.”
(emphasis added)

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.3 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.
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) and Ors. v. Union of India and Ors.,7 this

7 [2002] 2 SCR 712 : (2002) 4 SCC 247
[2024] 11 S.C.R. 875

Sonu Agnihotri v. Chandra Shekhar & Ors.

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.
17. We have already referred to the observations made in paragraphs 13
and 14 of the first impugned order. In paragraph 13, it is observed
that the appellant ‘embarked on an inexorable quest’. This ought to
have been avoided by the High Court. Paragraph 14 contains advice
to the appellant to be circumspect and to exercise care and caution
in future. The High Court could not have used a judgment on the
judicial side to advise individual Judicial Officers. That can only be
done on the administrative side in an appropriate case. Describing
the appellant’s approach as a ‘judicial misadventure’ in paragraph
14 was also improper. Therefore, the prayer made by the appellant
for expunging remarks in paragraphs 13 and 14, which we have
quoted in paragraph no.6 above, will have to be acceded to. We
make it clear that the direction to expunge the remarks made against
the appellant will not bind the administrative side of the High Court.
18. Accordingly, the appeals are allowed. Adverse remarks against the
appellant in paragraphs 13 and 14 of the first impugned order, which
we have quoted in paragraph no.6 above, are hereby expunged.

Result of the case: Appeals allowed.

†Headnotes prepared by: Ankit Gyan