Supreme Court of India
STATE OF RAJASTHANversusPRAKASH CHAND AND ORS.
- Citation
- 1997 INSC 776
- Decided
- 2 December 1997
- Disposal
- Appeal(s) allowed
- Bench
- A S ANAND
Holding
The Chief Justice alone controls the High Court's roster and bench constitution, and a single judge lacks jurisdiction to summon records of a disposed case, make disparaging comments, or issue contempt proceedings against the Chief Justice; thus the judge's order and contempt notice are void.
Summary
The Supreme Court allowed the State of Rajasthan's appeal against a single High Court judge, Justice Shethna, who, while hearing a criminal revision petition, improperly called for the record of a writ petition already disposed of by a Division Bench, made intemperate allegations against the Chief Justice and former chief justices regarding the transfer of the writ petition and alleged misuse of daily allowances, and issued a contempt notice to the Chief Justice. The Court held that the Chief Justice alone has administrative control and the power to allocate cases and transfer part‑heard matters to a larger bench under Rules 54 and 55 of the Rajasthan High Court Rules, and that a single judge has no jurisdiction to summon such records, comment on the merits of a disposed case, or initiate contempt proceedings against the Chief Justice. The Court also found the judge's allegations about dearness allowance factually incorrect and legally unsustainable. Consequently, the order and contempt notice were quashed and expunged, and the criminal revision petition was left to be decided on its merits by the High Court.
Issues considered
- Whether a single High Court judge has authority to call for the record of a writ petition already disposed of by a Division Bench and to make comments on its disposal while hearing an unrelated criminal revision petition.
- Whether a single judge can unilaterally direct the roster or allocate cases contrary to the Chief Justice's directions.
- Whether a single judge can issue a notice of contempt against the Chief Justice for transferring a part‑heard writ petition to a Division Bench.
- Whether the Chief Justice's transfer of a part‑heard writ petition to a Division Bench under Rule 55 is valid.
- Whether the judge's allegations concerning former chief justices' drawing of full daily allowance constitute contempt or are within judicial jurisdiction.
- The extent of judicial immunity under the Contempt of Courts Act, 1971 and the Judicial Officers' Protection Act, 1985.
Legislation cited
- Constitution of Indias. Art. 214, s. Art. 225
- Contempt of Courts Act, 1971s. Sec. 16(1)
- Indian Penal Code, 1860s. Sec. 304A
- Rajasthan High Court Ordinance, 1949s. Para 44
Subjects
judicial disciplinechief justice powersbench constitutioncontempt of courtpart‑heard casejudicial immunityhigh court rulesdaily allowanceguest houseadministrative controljudicial propriety
Judgment
STATE OF RAJASTHAN A
v.
PRAKASH CHAND AND ORS.
DECEMBER 2, 1997
[DR. A.S. ANAND, M.K. MUKHERJEE AND B
K. VENKATASWAMI, JJ.)
1 Rajasthan High Cowt Rules, 1952: Rules 54, 55, 66, 73 and 74.
j High Cowt-Chief Justice-Ad111i11istrative powers of-Cl1ief Justice C
transferred a parl-heard wlit petition ftvm a Si11gle Judge to a Division Be11ch
because Constitutional issues were involved i11 that writ petition-Writ petitio11
disposed of by Divisio11 Bench-Held : Constitution of Be11ches, providi11g of
roste1; transfer of cases, including pa11-heard cases, ft'Om the board of Si11gle
Judge to Division Bench for disposal on bei11g satisfied that the case i11volved
constitutional issues, is within the pre1Vgative of the Chief Justice of the High D
Coult-Single Judge or Division Bench cannot give any directio11s to the
Regist1y i11 that behalf-Puisne Judges ca11 only do that work which is allotted
to them by the Chief Justice or under his directions-If a11y Single Judge or
Division Bench co11siders a pa1ticular case to be listed before it, it may seek
appropliate orders from the Chief Iustice-Si11gle Judge has no auth01ity,
statutory or otllelwise, to call for the record of the disposed of wlit petitio11
while hea1i11g an imco1111ected criminal revision petition-Single Judge has no
authority to make comments 011 the maimer of trans[er of the writ petition
and conduct of the counsel and the Bench in disposing of the w1it petition,
while they had no opportunity to reply to those aspersions or insinua-
tions--Such comments or insinuations are 1101 only uncalled for, unwanwtted F
and unjustified but are also subversive of proper judicial discipline-Rajas-
than High Cowt Ordinance, 1949, Para 44---{;011stitutio11 of I11dia, 1950, Art
214.
High Court---Puisne Judges--Si11gle Judge made disparagi11g remarks G
against Chief Justice a11d Brother Judges-Held : Not merely a case of lack
of judicial restraint but it amou11ts to abuse a11d misuse of judicial auth01ity
and betrays lack of respect for the judicial institutio11 and amounts to con-
tempt of court.
High Court-Co11tempt of cowt-Sltow cause 11otice-Agai11st Cltitf H
1
2 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Justice-Issued by a puisne Judg~Validity of--'Transfer of p01t-heard writ
petition from a Single Judge to a Division Bench because constitutional issues
were involved-Held: S.16(1) of Contempt of Courts Act does not apply to
Judges of Court of Record-Tra11sfer of part-heard writ petition valid-Hence,
directio11 of Single Judge to issue show cause notice to Chief Justice as to why
B co11tempt proceedings be 11ot initiated against him is misconceived, illegal,
without jurisdiction a11d unsustainabl~ontempt of Courts Act, 1971,
S.16(1}-Judges (Protectio11) Act, 1985.
Judiciary-Limitiltio11s of-Held: Judges of the Supreme Court or High
Cowt ca1111ot enter i11to a public co11troversy and file affidavits to repudiate
C any C1iticism or allegations made against them. ·
High Court Judges Travelling Allowances Rules, 1956: Para 2 (E)(ii).
Daily allowance-High Cowt Guest House-High Court Judge includ-
ing Chief Justice-Entitlement to draw full Deamess Allowance (DA}-Con-
D ditions for-State Govemment placed Guest House at the disposal of High
Court-Held : Stay of Chief Justice without payment of charges would not
amount to ''free lodging" at the expense of Central or State Govemnrent so as
to attract the provision of Para 2(E)(ii)-01ief Justices, therefore,' were en-
titled to draw their full DA at the relevant time--lnsinuations and observa-
1 E tions made by the puisne Judge against a f onner Chief Justice and fonner al
regarding drawal of full DA and non- payment of charges for occupation of
the Guest House were misconceived, legally unsound, factually incorrect,
procedurally untenable and improper besides having been made recklessly.
A writ petition was filed, as a Public Interest Litigation in the High
F Court of Rajasthan at Jodhpur by an Advocate of that Court, inter alia
seeking directions to provide suitable accommodation to the Judges of that
High Court and for certain other benefits for the Judges During the
proceedings of the writ petition certain interim orders came to be made by
Shethna, J. from time to time. Shethna, J. directed the writ petition to be
treated as part-heard at the 'request' of counsel for the parties. In the
G meanwhile, an Advocate filed an application for being impleaded as
petitioner No. 2 in that writ petition. He inter alia challenged the legality
and validity of the constitution of a Bench of the High Court at Jaipur as
also the order of the State Government declaring bungalow No. N2 at
Jaipur as the Guest House for the exclusive use of the Chief Justice and
H bungalow No. NS at Jaipur as the High Court Guest House. Over-ruling
STATE v. PRAKASH CHAND 3
the objections raised by the respondent therein, inter alia, to the effect that A
the application of the said Advocate would widen the scope of the writ
petition, the ap1,lication was allowed by Shethna, J and the said Advocate
was impleaded as petitioner No. 2 in the writ petition. The case was then
adjourned from time to time on being listed as part-heard before the Single
Judge. In the meantime, the roster was changed and Shethna, J was B
required to sit in a Division Bench instead of sitting singly between 4-9-
1997 and 12-9-1997. On 8-9-1997, the Additional Advocate General for the
State of Rajasthan moved an application under Rule 55 of the Rajasthan
High Court Rules, 1952 with the prayer that since challenge to the legality
and validity of the constitution of a Bench of the High Court at Jaipur had
been raised by petitioner- Advocate the writ petition should be referred to C
a Division Bench for hearing. By an administrative order, the Chief Justice
directed, on 8-9-1997, that the application filed by the Additional Advocate
General be put up for orders on the next day at 10.30 A.M. A judicial order
then came to be made on 9-9-1997 by the Chief Justice, in the presence of
all the parties to the writ petition. It was directed that the writ petition D
should be listed before a Division Bench of the High Court since it involved
constitutional questions. When the writ petition was listed, the Division
Bench dismissed the petition in view of the statement of the counsel for
the petitioners therein that the relief sought for in the writ petition did not
survive for consideration and the main petition itself having been dis-
missed, it held that the right of the intervenor did not survive for con- E
sideration.
A Criminal Revision Petition was filed by respondent No.1 challeng-
ing his conviction and sentence for an offence UDder Section 304A of the
Indian Penal Code, 1860. This petition, as per the roster, was listed for F
admission and bail before Shethna, Jon 3-9-1997. Preliminary hearing of
the petition did not conclude on that date and the Judge directed that the
revision petition be listed before him "alongwith other part-heard" cases
on 5-9-1997, even though as per the change of the roster, he could not take
up Single Bench matters on 5-9-1997, since he was to sit in a Division
Bench on that date. Shethna, J directed the Registry to list those cases "on G
a separate board". Since, the Registry could not create a 'separate board'
for Shethna, J without obtaining directions from the Chief Justice, the
matter was placed for orders before the Chief Justice on 3-9-1997 itself.
However, the Chief Justice declined to provide a 'separate board' for
Shethna, J for sitting in Single Bench, on 5- 9-1997. H
4 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Despite the above order, Shethna, J while still sitting in the Division
Bench, on a mention made by the Advocate for the revision petitioner,
passed an order on 8·9-1997, as a Single Judge, directing that Criminal
Revision Petition alongwith "other part-heard cases" should be listed
before him"on a separate board" on 9-9-1997, knowing fully well that on
B that date also he was to cont,nue to sit in the Division Bench and that no
cases could be listed before him without appropriate directions of the
Chief Justice. In view of the earlier order of the Chief Justice dated
3-9-1997 the Registry could not act on the directions of Shethna, J and,
therefore, the Registry once again sought directions of the Chief Justice.
The Chief Justice accommodated Shethna, J and directed that the criminal
C revision petition and 'other part-heard cases' be listed before him on a
'separate board'. That was done.
Since, the writ petition had already been disposed of by the Division
Bench on 10-9-1997, it was no longer a "part-heard case" on the Board of
D Shethna, J and, therefore, it was not listed alongwith the "other part-heard
cases". Even then, while hearing the preliminary arguments in the criminal
revision petition the record of the disposed of writ petition was also called
for by Shethna, J though there was no connection or relevance between the
two cases. In a detailed order, Shethna, J made caustic comments and
allegations in intemperate language not only against the Chief Justice for
E transferring that writ petition from his board to the Division Bench but
also against the Judges constituting the Division Bench which heard the
writ petition. While making those observations Shethna, J took exception
to the manner in which the writ petition was transferred to the Division
Bench by the 'Chief Justice and "opined", that by doing so, the Chief Justice
p had prim a f acie committed contempt of court.
Shethna, J also observed that the Chief Justice of the High Court in
withdrawing the part-heard writ petition and getting it disposed of in "most
suspicious circumstances" prima facie committed a "criminal contempt".
He, therefore, directed issuance of notice against the Chief Justice to show
G cause as to why contempt proceedings should not he initiated against him
for committing criminal contempt under the Contempt of Courts Act,
1971.
Shethna, J also made comments regarding drawal of DA and non·
H payment of charges for occupation of Bungalow No. N2, Jaipur by some
\
STATE v. PRAKASH CHAND 5
of the former Chief Justices of the Rajasthan High Court including a A
former Chief Justice of India, Mr. Justice J.S. Verma, till 1994. The
insinuation made was that all of them had "illegally" drawn full DA of Rs.
250 per day to which they were not entitled and their action, amounted to
"misappropriation of public funds" because it was alleged that each one of
them had been "allotted free accommodation by the Government of Rajas- B
- than".
While the judicial propriety, validity and justification for making
insinuations against the Chief Justice of the High Court, casting asper·
sions on the Judges constituting the Division Bench and making comments
and allegations against some of the former Chief Justices of that Court C
including a former Chief Justice of India, has been squarely put in issue
by the State of Rajasthan in this appeal, the Chief Justice of Rajasthan
-- High Court-respondent No. 2; has called in question the notice directed to
be issued to him to show cause why contempt proceedings be not initiated
against him. The following questions arose before this Court for considera· D
tion:
1. Did Shethna, J have any judicial or administrative authority to
send for the record of a writ petition which had already been disposed of
by a Division Bench • that too while hearing a wholly unconnected criminal
revision petition ·and pass "comments" and make "aspersions" against the E
Chief Justice of the High Court and Judges constituting the Division Bench
regarding the merits of its disposal?
2. Can a Single Judge of a High Court itself direct a particular roster
for himself, contrary to the determination made by the Chief Justice of the
High Court? Is not such an action of the Single Judge subversive of F
judicial discipline and decorum expected of a puisne Judge?
3. Can notice to show cause as to why contempt proceedings be not
initiated against the Chief Justice of the High Court for passing a judicial
order on the application of the Additional Advocate General of the State G
in the presence of counsel for the parties transferring the writ petition
heard in part by Shethna, J, for its disposal in accordance with law, to a
Division Bench be issued by the Single Judge?
4. Did Shethna, J have any power or jurisdiction to cast 'aspersion'
on some of the former Chief Justices Qf the Court, including a former Chief H
6 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
,, A Justice of India, Mr. Justice J.S. Verma, behind their backs and that too
on half-baked facts and insinuate that they had "illegally" drawn DA at the --
full rate of 'Rs. 250/' per day, to which "they were not entitled", and had
thereby committed "criminal misappropriation of public funds" while
making comments on the merits of the disposed of writ petition?
B Allowing the appeal, this Court
HELD: 1.1. Though, on the judicial side the Chief Justice of the High
Court is only the 'first amongst equals', the administrative control of the
High Court vests in the Chief Justice of the High Court alone and it is his
C prerogative to distribute business of the High Court, both judicial and
administrative. [20-F; B-C]
1.2. The Chief Justice is the master of the roster. He alone has the
right and power to decide how the Benches of the High Court are to be
constituted; which Judge is to sit alone and which cases he can and is
D required to hear as also as to which Judges ·shall constitute a Division
Bench and what work those Benches shall do. [53-F; 20-C-D]
1.3. The puisne Judges can only do that work as is allotted to them
by the Chief Justice or under his directions. No Judge or a Bench of Judges
can assume jurisdiction in a case pending in the High Court unless the
E case is allotted to him or them by the Chief Justice. Strict adherence of
this Procedure is essential for maintaining judicial discipline and proper
functioning of the High Court. No departure from it can be permitted.
[53-G; 29-H; 30-A-B]
1.4. Till any determination made by the Chief Justice lasts, no Judge
who is to sit singly can sit in a Division Bench and no Division Bench can
F
be split up by the Judges constituting the Bench themselves and one or
both the Judges constituting such Bench sit singly and take up any other
kind of judicial business not otherwise assigned to them by or under the
directions of the Chief Justice. [53-G-H]
G Sohan Lal Boid v. State of WB, AIR (1990) Cal. 168 and Sanjay Kumar
Slivastava v.Acting Chief Justice, (1996) AWC 644 (All.), approved.
2.1. In the event a Single Judge or a Division Bench considers that a
particular case requires to be listed before him/it for valid reasons, he/it
should direct the Registry to obtain appropriate orders from the Chief
H Justice. The puisne Judges are not expected to entertain any request from
STATE v. PRAKASH CHAND 7
the Advocates of the parties for listing of case, which does not strictly fall ·A
- within the determined roster. In such cases, it is appropriate to direct the
counsel to make a mention before the Chief Justice and obtain appropriate
orders. This is essential for smooth functioning of the High Court. [20-E-F]
- State v. Devi Daya~ AIR (1959) All. 421 and Niranjan Singh v. State,
AIR (1974) Rajasthan 171, approved.
Re : Von Dembi11ska Ex party The Debtor (1954) 2 All ER 46, cited.
B
2.2. The Chief Justice can take cognizance of an application laid
before him under Rule 55 of the Rajasthan High Court Rules, 1952 and
refer a case to the larger Bench for its disposal and he can exercise this
c
jurisdiction even in relation to a part-heard case. The Chief Justice has
the authority and the jurisdiction to refer even a part-heard case to a
Division Bench for its disposal in accordance with law where the Rules so
demand. It is a complete fallacy to assume that a part-heard case can
under no circumstances be withdrawn from the Bench and referred to a D
larger Bench, even where the Rules make it essential for such a case to be
heard by a larger bench. [54-A-B; 30-B-C]
State of Maharashtra v. Narayan Shamrao Puranik, AIR (1982) SC
1198 and Inder Mani v. Matheshwari Prasad, [1996) 6 SCC 587, relied on. E
Mayavann Financial Corporation Ltd. v. Registrar of Chits, (1991) 2
LW (Mad.) 80, approved.
2.3. The puisne Judges cannot "pick and choose" any case pending in
.... the High Court and assign the same to himself or themselves for disposal p
without appropriate orders of the Chief Justice. No Judge or Judges can
give directions to the Registry for listing any case before him or them,
which runs counter to the directions given by the Chief Justice.[54-B-C]
3.1. In the instant case, it was the statutory duty of the Chief Justice
to assign the writ petition to a Division Bench of the High Court for G
hearing since it involved constitutional issues and Rule 55 of the High
Court Rules required such a case to be so heard. He could not shut his
eyes as regards the requirements of Rule 55 only because a Single Judge
of the High Court was treating the case as part-heard. The correctness of
the order of the Chief Justice could only be tested in judicial proceedings H
8 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A in a manner known to law. No Single Judge was competent to find fault
with it. (30-D-F]
3.2. Shethna, J did not have any authority, statutory or otherwise - ~or
was it necessary - to call for the record of the writ petition : firstly because
it stood already disposed of by a Division Bench and secondly because it was
B t~tally unrelated to and uncmwected with the criminal revision petition he
was to hear. Therefore, ii appears that the record was sent for, not for mere
perusal but for some other purpose, not strictly judicial. It was improper on
--
the part of the Single Judge to have cast aspersions on the conduct of the
counsel and the Bench in relation to a disposed of matter, in a wholly
C unconnected judicial proceedings. In doing so he transgressed all bounds of
judicial propriety and discipline. (31-B-C; F]
3.3. The insinuations made by Shethna, J against the Chief Justice
of the High Court for transferring the writ petition to the Division Bench
are not only uncalled for, unwarranted and unjustified but are also sub-
D versive of proper judicial discipline. To insinuate, as the Single Judge did,
that the writ petition was got 'disposed of' in 'suspicious circumstances' is
wholly wrong and devoid of sobriety expected of a judicial officer. The
insinuation also amounts to contempt of the Division Bench as it implies
that the Judges of the Division Bench were so "amenable". The insinuations
are aimed at bringing the administration of justice into disrepute and tend
E
to shake public confidence in the impartiality of the judiciary. The obser-
vations, insinuations and aspersions lack courtesy and good faith. Judicial
restraint has been thrown to the winds. It is unbecoming of a Judge of the
High Court to travel out of the confines of the issue before him (in this
case the criminal revision petition) and to fish out material to unjustifiably
F malign someone more particularly where that someone happens to be the
one who is the head of the judicial family in that High Court. This practice
is strongly deprecated. (31-G-H; 32-A-C]
Braj Kishore Thakur v. Union of India, (1997] 4 SCC 65 and A.M.
G Mathur v. Pramod Kumar Gupta, (1990] 2 sec 533, relied on.
4.1. The Single Judge has cast aspersions and made insinuations
against the Chief Justice and the Judges constituting the Division Bench,
who had passed judicial orders in the writ petition. They have had no
chance or opportunity to reply to those aspersions and insinuations. By
H the very nature of their office, the Judges of the Supreme Court or the High
STAIB v. PRAKASH CHAND 9
Court, cannot enter into a public controversy and file affidavits to A
-repudiate any criticism or allegations made against them. Silence, as an
option, becomes necessary by the very nature of the office which the Judges
hold. Those who criticise the Judges in relation to their judicial or ad·
ministrative work, must remember that the criticism, even if outspoken,
can only be of the judgment but not of the Judge. By casting aspersions B
on the Judges personally or using intemperate language against them, the
critics, whoever they may be, strike a blow at the prestige of the institution
and erode its credibility. That must be avoided at all costs. Shethna, J must
be presumed to be aware of this and yet he permitted himself the liberty
to make intemperate comments and disparaging and derogatory remarks
against the Chief Justice and his Brother Judges as also a former Chief C
Justice of that Court, including a former Chief Justice of India who cannot
reply or respond to the unfounded charges. It is not _merely a case of lack
of judicial restraint but it amounts to abuse and misuse of judicial
authority and betrays lack of respect for judicial institution. Besides when
made recklessly (as in the instant case) it amounts to interference with the D
judicial process. The foundation of our system which is based on the
independence and impartiality of those who man it, will be shaken if
disparaging and derogatory remarks are permitted to be made against
brother Judges with impunity. It is high time that Judges realise that the
much-cherished judicial independence has to be protected not only from
outside forces but also from those who are an integral part of the system. E
Dangers from within have much larger and greater potential for harm than
dangers from outside. Judges alone in the judicial family can guard
against such dangers from within. One of the surer means to achieve it is
by the Judges remaining circumspect and self-disciplined in the discharge
of their judicial functions. The manner in which the Single Judge has acted F
is really distressing. [33-G-H; 34-A-F]
4.2. The disparaging and derogatory comments made in the most
intemperate language in the order under appeal do no credit to the high
office of a High Court Judge. [55-B]
G
4.3. Therefore, all comments, observations and findings recorded by
the Single Judge in relation to the disposed of writ petition were not only
unjustified and unwarranted but also without jurisdiction and make the
Judge coram-non-judice. [54-D-E] H
10 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A 5.1. The issuance of a notice to the Chief Justice to show cause why
proceedings under the Contempt of Courts Act, 1971 be not initiated
against him for transferring the part-heard writ petition to the Division
Bench for hearing, is not only subversive of judicial discipline and illegal
but is also without jurisdiction. No such notice could be issued to the Chief
B Justice since the order referring the case to the Division Bench was an
order legally made by the Chief Justice in exercise of his statutory powers.
Such an order can never invite initiation of contempt proceedings against
him. The issuance of notice smacks of judicial authoritarianism and is not
permissible in law. The great anxiety to hear "order part-heard cases"
alongwith the criminal revision petition, on a date when the Single Judge
C was sitting in the Division Bench exposes an undue interest in some
matter, which again is against judicial discipline. [35-F-H; B-C]
5.2. Even otherwise, it is a fundamental principle of our
jurisprudence and it is in public interest also that no action can lie against
D a Judge of a Court of Record for a judicial act done by the Judge. The
remedy of the aggrieved party against such an order is to approach the
higher forum through appropriate proceedings. This immunity is essential
to enable the Judges of the Court of Record to discharge their duties
without fear or favour, though remaining within the bounds of their
jurisdiction. Immunity from any civil or criminal action or a charge of
E contempt of court is essential for maintaining independence of the
judiciary and for the strength of the administration of jnstice. Thus no
action could lie against the Chief Justice acting judicially for doing some-
thing within his jurisdiction even if the order is patently erroneous and
unsustainable on merits. Even under the Judicial Officers' Protection Act,
1985 immunity· has been given to judic;al work done by them as well as for
F the judicial orders made by them. Section 16(1) of the Contempt of Courts
Act, 1971 does not apply to the Judges of the Court of Record but only to
the subordinate judiciary. [36-A-B; 37-A-B; E-F; H]
Arenson v. Casson, Beckman Rultley & Co. Ltd., [1977] AC 405, cited.
G
Oswald's Contempt of Cowt 3rd Edn. [1993] (Reprint) and Salmond
and Heuston on the Law of Tolts, 21st Edn. [1996], referred to.
5.3. The issuance of a notice to show cause why contempt proceedings·
be not initiated against respondent No. 2, the Chief Jnstice of the High
H Court, by Shethna, J in the facts and circumstances of this case is thus
STATE v. PRAKASH CHAND 11
wholly illegal, unwarranted and without jurisdiction. Issuance of such a A
notice is also misconceived since by no stretch of imagination can it be
said that there was any interference in the administration of justice by the
Chief Justice in exercising his statutory powers to allocate work to puisne
Judges and to the Division Benches. The direction of Shethna, J to issue
notice to Chief Justice of the High Court to show cause why contempt B
proceedings be not initiated against him, for transferring a part-heard writ
petition from his Bench to the Division Bench for disposal, is not only
subversive of judicial discipline and illegal but is also wholly misconceived
and without jurisdiction. [38-A-D]
6.1. Bungalow No. A/2 at Jaipur had been declared as a High Cowt C
Guest House by the State Government in 1979 and placed at the disposal
of the High Court of Rajasthan. It had not been allotted as rent free
accommodation in favour of any Chief Justice. The charges of rent of
Bungalow No. A/2 at Jaipur were debited to the account of the High Court
of Rajasthan by the State Government. The Bungalow was in possession D
of and under the control of the High Court of Rajasthan. Occupation of
such a building, with or without payment of charges was to be regulated
by the High Court of Rajasthan itself. The charges, if any, were to be tixed
by the High Court of Rajasthan for occupation of the Guest House and
those charges were recoverable by the High Court of Rajasthan from the
persons occupying the Guest House. May be, the High Court only per- E
mitted the· Chief Justice to stay in that Guest House, but that was an
internal arrangement of the High Court and the Government had no say
in it. If the High Court also chose not to tix any charges ever since 1979,
when the Guest House was allotted to the High Court till 1994, it cannot
by any stretch of imagination be said that the Chief Justices had been F
allotted "free Government accommodation" for their stay at Jaipur in the
High Court Guest House, so as to disentitle them to draw full dearness
allowance (DA) at the admissible rates. [49·D·H; 50-A]
6.2. Providing free boarding/lodging at the expense of the Central or
the State Government or declaring the occupant as a "State Guest" is the G
sine qua non for attracting Para 2(E) (ii) of the High Court Judges Travell·
ing Allowances Rules, 1956, not entitling a Judge including the Chief
Justice to draw full DA. After bungalow No. A/2 had been declared as the
High Court Guest House in 1979, and placed under the control of High
Court, the State Government went out of the picture insofar as its use and H
12 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A occupation was concerned. The stay in that Guest House even without
charges, cannot by any rule of construction, be construed as providing
"free lodging" at the expense of the Central or State Government so as to
attract the provision of Para 2 (E) (ii) of the Rules. The Chief Justices were,
therefore, not disentitled to draw th~ir full DA at the rates admissible at
B the relevant time. Even after the charges were fixed at the rate of Rs. 10
or Rs. 16 per day for occupation of the Guest House in 1994 by the High
Court, the Chief Justices have continued to draw their full DA and not 50%
,of the DA. They have paid charges to the High Court for the use of the
Guest House at the rate fixed by the High Court w.e.f. 10-6-1994. Therefore,
it cannot be said that any of the Chief Justices, till 1994, had "illegally"
C drawn the full DA to which they were not entitled. The further observations
of Shethna, J that :
"It is nothing but a misappropriation of the public fund which is a
criminal offence under the Penal Code."
D are not only based on wrong assumptions but are also legally unsound
and untenable. [50-B-G]
6.3. Thus the observations of the Single Judge against the former
Chief Justices of the High Court of Rajasthan to the effect that they had
E "illegally" drawn full DA while sitting at Jaipur to which they were not
entitled, is factually incorrect, procedurally untenable and legally unsus-
tainable. [54-F-G]
6.4. The "finding" recorded by the Single Judge against a former
Chief Justice of India, Mr. Justice J.S. Verma, that till his elevation to the
F Supreme Court, he had, as Chief Justice of the Rajasthan High Court,
"illegally" drawn a DA of Rs. 250 while sitting at Jaipur and had thereby
committed "criminal misappropriation of public fund" lacks procedural
propriety, factual accuracy and legal authenticity. The finding is wholly
incorrect and legally unsound and makes the motive of the author not
G above personal pique so wholly taking away the dignity of the judicial
process. [54-G-H; 55-A]
?.1. A Judge has the inherent power to act freely upon his own
conviction on any matter comiug before him, but it is a principle of highest
importance .to the proper administration of justice that the Judge must
H exercise his powers within the bounds of law and should not use in-
STATE v. PRAKASH CHAND 13
temperate language or pass derogatory remarks against other judicial A
functionaries, unless it is absolutely essential for the decision of the case
and is backed by.factual accuracy and legal provisions. [52-C-D]
7.2. It is the duty of every member of the legal fraternity to ensure that
the image of the judiciary is not tarnished and its respectability eroded. The
manner in which proceedings were taken by the Single Judge in relation to B
the writ petition disposed of by a Division Bench exposes a total lack of
respect for judicial discipline. Judicial authoritari:mism is what the
proceedings in the instant case smack of. It cannot be permitted under any
guise. Judges must be circumspect and self disciplined in the discharge of
their judicial functions. The virtue of humility in the Judges and a constant C
awareness that investment of power in them is meant for use in public
interest and to uphold the majesty of rule of law, would to a large extent
ensure self restraint in discharge of all judicial functions and preserve the
independence of judiciary. It needs no emphasis to say that all actions of a
Judge must be judicious in character. Erosion of credibility of the judiciary,
in the public mind, for whatever reasons, is greatest threat to the inde· D
pendence of the judiciary. Eternal vigilance by the Judges to guard against
any such latent internal danger is therefore, necessary, lest the Judges
"suffer from self-inflicted mortal wounds". Judges must remember that the
Constitution does not give unlimited powers to any one including the Judge
of all levels. The societal perception of Judges as being detached and E
impartial referees is the greatest strength of the judiciary and every mem·
her of the judiciary must ensure that this perception does not receive a set
back consciously or unconsciously. Authenticity of the judicial process rests
on public confidence and public confidence rests on legitimacy of judicial
process. Sources of legitimacy are in the impersonal application by the
Judge of recognised objective principles, which owe their existence to a
F
system as distinguished from subjective moods, predilections, emotions
and prejudices. It is most unfortunate that the order under appeal founders
on this touchstone and is wholly unsustainable. [52-F-H; 53-A-D]
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. G
1145 of 1997.
From the Judgment and Order dated 15.9.97 of the Rajasthan High
Court in Crl. R. No. 354 of 1997.
Ashok H. Desai, Attorney General for India, Manoj K. Das, Srilok H
14 SUPREME COURT REPORTS (1997] SUPP.6 S.C.R.
A Nath Rath, Nikhilesh Ramachandran, Ms. Rina Bagga and Aruneshwar
Gupta for the Appellant.
T.R. Andhayarujina, Solicitor General of India, Subrat Birla and K.L.
Janjani for the Respondent No. 2.
B The Judgment of the Court was delivered by
DR. ANAND, J. Leave granted.
This is an unusual case. The observations, comments and allegations
made and the order passed by a learned Single Judge of the Rajas than
C High Court, Mr. Justice Shethna, in relation to a disposed of writ petition,
by sending for its record in a totally unrelated and unconnected criminal
revision petition, which have been put in issue in this appeal, touch not
only upon the discipline of the High Court and the powers of the Chief
Justice to assign cases and allot Benches but also the larger issue of judicial
D propriety. The order directing issuance of notice of contempt to the chief
Justice of the High· Court raises a fundamental question about the jurisdic-
tion of a single Judge to issue such a notice in the established facts of the
case. It is not individuals but the prestige of the Institution which is at stake
in this case. The manner in which 'allegations' have been made against the
E Chief Justice of the High Court, the Division Bench of the High Court
which had disposed of the writ petition and some of the former Chief
Justices _of the Rajasthan High Court, including the present Chief Justice
of India, Mr. Justice J.S. Verma, has caused us much anguish. We wish we
did not have to deal with a case like this but we shall be singularly failing
in our duties to the Institution, if we do not de::.! wilth the matter and take
F it to its logical conclusion. First, some salient facts :
Writ petition No. 2949 of 1996 was filed, as a Public Interest Litiga-
tion, on 9.9.1996 in the High Court of Rajasthan at Jodhpur by an Advocate
of that court, inter alia seeking directions to provide suitable accommoda-
tion to the Judges of the Rajasthan High Court and for certain other
G benefits for the Judges. During the proceedings of the writ petition certain
interim orders came to be made by Shethna, J. from time to time. On
29.4.1997 Shethna, J. directed the writ petition to be treated as part-heard
at the 'request' of learned counsel for the parties. In the meanwhile, Shri
D.R. Bhandari, Advocate, filed an application for being irnpleaded as
H petitioner No. 2 in that writ petition. He inter alia challenged the legality
STATE v. PRAKASHCHAND[DR.ANAND,J.] 15
and validity of the constitution of a Bench of the High Court at Jaipur as A
also the order of the State Government declaring bungalow No. A/2 at
Jaipur as the Guest House for the exclusive use of the Chief Justice and
bungalow No. A/5 at Jaipur as the High Court Guest House. Certain other
issues were also raised by Shri Bhandari in that application. Over-ruling
the objections raised by the respondent therein inter alia, to the effect that B
the application of Shri Bhandari would widen the scope of the writ petition,
the application of Shri Bhandari was allowed by Shethna, J on 29.7.1997
and he was impleaded as petitioner No. 2 in the writ petition. The case was
then adjourned from time to time on being listed as part-heard before the
learned single Judge. In the meantime, the roster was changed and Sheth-
na, J. was required to sit in a Division Bench instead of sitting singly C
between 4.9.1997 and 12.9.1997. On 8.9.1997, the Additional Advocate
General for the State of Rajasthan moved an application under Rule 55 of
the Rules of the High Court of Judicature for Rajasthan (hereinafter the
Rules) with the prayer that since challenge to the legality and validity of
the constitution of a Bench of the High Court at Jaipur had been raised D
by ·petitioner No. 2, Shri Bhandari, Writ Petition No. 2949/96 should be
referred to a Division Bench for hearing. By an administrative order, the
Chief Justice directed, on 8.9.97, that the application filed by the Addition-
al Advocate General be put up for orders on the next day at 10.30 A.M.
l, A judicial order then came to be made on 9.9.1997 by the Chief Justice, in
presence of all the parties to the writ petition. It was directed that the writ E
petition should be listed before a Division Bench of the High Court
comprising Mr. Justice M.P. Singh and Mr. Justice B.S. Chauhan since it
involved constitutional questions. When the writ petition was listed before
the Division Bench on 10.9.1997, the following order came to be passed:-
F
10.09.1997
HON'BLE MR. JUSTICE M.P. SINGH
HON'BLE DR. JUSTICE B.S. CHAUHAN
MR. M.C. Bhoot ) G
Mr. D.R. Bhandari ) for the petitioners
Mr. l.R. Chaudhary )
Mr. L.S. Udawat ) for the respondents
Mr. R.P. Dave ) H
16 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Mr. M.C. Bhoot, learned counsel for the petitioners, states that
the relief sought for, in the writ petition, do not sO.rvive for
consideration now. The writ petition has become infructuous.
Accordingly, the writ petition is dismissed as infructuous.
B Since the main petition itself has been dismissed, t,he right of
the intervenor to be heard does not survive for consideration.
Accordingly, the application filed by him is also rejected."
Thus, writ petition No. 2949 of 1996 was dismissed as 'infructuous' and, the
proceedings in that writ petition concluded.
c
A Criminal Revision Petition No: 357 of 1997 was filed by one
Prakash Chand, respondent No. 1, herein challenging his conviction and
sentence for an offence under Section 304 A IPC. This petition, as per the
roster, was listed for admission and bail before Shethna, J. on 3.9.1997. It
D appears that preliminary hearing of the petition did not conclude on that
date and the learned Judge directed that the revision petition be listed
before him "alongwith other part-heard" cases on 5.9.1997, even though as
per the change of the roster, he could not take up single bench matters on
5.9.97, since he was to sit in a Division Bench on that date. Shethna, J.
directed the Registry to list those cases "on a separate board". Since, the
E Registry could not create a 'separate board' for Shethna, J., without
obtaining directions from the Chief Justice, the matter was placed for
orders before the Chief Justice on 3.9.97 itself. The Chief Justice
directed:
"There will be no roster for Hon'ble Justice B.J. Shethna for sitting
F in Single Bench on 5.9.1997. Those part heard matters may be
listed on some other day some time next week as the business of
the Court would permit with my specific order.
Providing roster is the prerogative of the Chief Justice, which
must be brought to the knowledge of the Hon'ble Judge."
G
Despite the above order, Shethna, J. while still sitting in the Division
Bench, on a mention made by the learned Advocate for the revision
petitioner, passed an order on 8.9.1997, as a single Judge, directing that
Criminal Revision Petition No. 357/97 alongwith "other part-heard cases"
H should be listed before him "on a separate board" on 9.9.97, knowing fully
STATE v. PRAKASH CHAND [DR. ANAND, J.] 17
well that on that date also he was to continue to sit in the Division Bench A
and that no cases could be listed before him without appropriate directions
of the Chief Justice. In view of the ea~lier order of the Chief Justice dated
3.9.97 (supra) the Registry could not act on the directions of Shethna, J.
and therefore the Registry once again sought directions of the Chief
Justice. The Chief Justice, it appears accommodated Shethna, J. and B
directed that the criminal revision petition and 'other part-heard cases' be
listed before him on a separate board. That was done.
Since, W.P. No. 2949/1996 had already been disposed of by the
Division Bench on 10.9.1997, it was no longer a "part-heard case" on the
Board of Shethna, J. and therefore it was not listed alongwith the "other C
part-heard cases". Still then, surprisingly however while hearing preliminary
arguments in Criminal Revision Petition No. 357 of 1997 filed by Prakash
Chand for admission and bail, the record of the disposed of writ petition
No. 2949 of 1996 was also called for by Shethna, J. and in a detailed order,
comments and observations were made regarding (and unrelated to) that D
writ petition and an exception was taken to its disposal by the Division
Bench. Caustic comments, and unjustified allegations in intemperate lan-
guage were made not only against the Chief Justice for transferring that
writ petition from his board to the Division Bench but also against the
learned Judges constituting the Division Bench which heard the writ peti-
tion. While making those observations that Shethna, J. took exception to E
the manner in which the writ petition was transferred to the Division Bench
by the Chief Justice and "opined'', that by doing so, the Chief Justice had
p1ima f acie committed criminal contempt of court and concluded :
"Thus, the act of Shri Mukul Gopal Mukherji, the Chief Justice F
of Rajasthan High Court in withdrawing the part heard writ peti-
tion from this Court and getting it disposed of in a most suspicious
circumstances and not placing that petition alongwith other part
heard matters before this Court on 5.9.97 and 9.9.97 as per my
earlier order dated 3.9.97 and 8.8.97 p1i111a facie constitute a G
"criminal contempt". Therefore, office is directed to issue notice
.l' against Shri Mukul Gopal Mukherji, the Chief Justice of Rajasthan
High Court to show cause as to why the contempt proceedings
should not be initiated against him for committing criminal con-
tempt under the Contempt of Courts Act, 1971. The office shall
register this case and give separate number to this as S.B. Cr. Misc. H
18 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A Contempt Petition No .... ./97 and title as State of Rajasthan v. Mukul
Gopal Mukherji, the Chief Justice of Rajasthan High Court."
In the course of the order comments were made ·not only against the
Chief Justice and the Judges constituting the Division Bench but also
against some of the former Chief Justices regarding the "illegal" drawal by
B them of daily allowance while sitting at Jaipur.
While the judicial propriety, validity and justification for making
insinuations against the Chief Justice of the High Court, casting aspersions
· on the learned Judges constituting the Division Bench and making com-
C ments and allegations against some of the former Chief Justices of that
court including the present Chief Justice of India, has been squarely put
in issue by the State of Rajasthan in this appeal by special leave, the Chief
Justice of Rajasthan High Court-respondent No. 2, has called in question
the notice directed to be issued to him to show cause why contempt
proceedings be not initiated against him.
D
Did Shethna, J. have any judicial or administrative authority to send
for the record of a writ petition which had already been disposed of by a
Division Bench - that too while hearing a wholly unconnected criminal
revision petition - and pass "comments" and make "aspersions" against the
E Chief Justice of the High Court and the Judges constituting the Division
Bench regarding the merits of the writ petition and manner of its disposal.
Can a Single Judge of a High Court itself direct a particular roster
for himself, contrary to the determination made by the Chief Justice of the
High Court? Is not such an action of the single Judge subversive of judicial
F discipline and decorum expected of a puisne Judge?
Could a notice to show cause as to why contempt proceedings be not
initiated against the Chief Justice of the High Court for passing a judicial
order on the application of the Additional Advocate General of the State
G in the presence of counsel for the parties transferring writ petition No.
2949/96, heard in part by Shethna, J., for its disposal in accordance with
law to a Division Bench be issued by the learned single Judge ?
Did Shethna, J. have any power or jurisdiction to cast 'aspersions' on
some of the former Chief Justices of that Court, including the present Chief
H Justice of India, Mr. Justice J.S. Verma, behind their backs and that too
STATE v. PRAKASH CHAND [DR. ANAND, J.] 19
on half-baked facts and msinuate that they had "illegally" drawn daily A
allowances at the full rate of 'Rs.· 250' per day, to which "they were not
entitled", and had thereby committed "criminal misappropriation of public
funtls" while making comments on the merits of the disposed of writ
petition?
These are some of the important and fundamental questions which B
arise in this case.
Before proceeding further, it is necessary to first examine the powers
of the Chief Justice in the matter of constitution of Benches, providing of
roster and in particular his prerogative to transfer even a part-heard case C
from the board of a learned Single Judge to a Division Bench for disposal
on being satisfied that the case involved constitutional issues, which under
the High Court Rules was required to be heard by a Division Bench.
Para 44 of the Rajasthan High Court Ordinance, 1949 deals with the
distribution of business and administrative control of the High Court. It D
provides:
"Distribution of business and administrative control - (1) The
High Court may, by it own rules, provide as it thinks fit for the
exercise by one or more Judges, or by Division Courts constituted
by two or more Judges; of the High Court, of its original and E
appellate jurisdiction.
(2) The Chief Justice shall be responsible for the distribution
and conduct of the business of the High Court, and shall determine
which Judge in each case will sit alone and which Judges of the
Court will constitute a Bench. F
(3) The administrative control of the High Court shall vest in
the Chief Justice who may exercise in such manner and after such
consultation with the other Judges as he may think fit or may
delegate such of his functions, as he deems fit to any other Judge G
of the High Court.
By virtue of the powers conferred by the Rajasthan High Court
Ordinance, 1949 read with Article 225 of the Constitution of India, the
High Court of Rajasthan, with the approval of the Governor of the State,
- framed Rules of the High Court of Judicature for Rajasthan, 1952. Chapter H
20 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A V of the Rules deals with the constitution of Benches. Rule 54 provides :
Rule 54. Constitution of Benches. - Judges shall sit alone or in
such Division Courts, as may be constituted from time to time and
do such work, as may be allotted to them by order of the Chief
Justice or in accordance with his direction."
B
A careful reading of the aforesaid provisions of the Ordinance and
Rule 54 (supra) shows that the administrative control of the High Court
vests in the Chief Justice of the High Court alone and that it is his
prerogative to distribute business of the High C-durt both judicial and
C administrative. He alone, has the right and power to decide how the
Benches of the High Court are to be constituted : which Judge is to sit
alone and which cases he can and is required to hear as also as to which
Judges shall constitute a Division Bench and what work those Benches shall
do. In other words the Judges of the High Court can sit alone or in Division
D Benches and do such work only as may be allotted to them by an order of
or in accordance with the directions of the Chief Justice. That necessarily
means that it is not within the competence or domain of any single or
division bench of the court to give any direction to the Registry in that
behalf which will run contrary to the directions of the Chief Justice.
Therefore in the scheme of things judicial discipline demands that in the
E event a single Judge or a division bench considers that a particular case
requires to be listed before it for valid reasons, it should direct the Registry
_ to obtain appropriate orders from the Chief Justice. The puisne Judges are
not expected to entertain any request from the Advocates of the parties
for listing of case which does not strictly fall within the determined roster.
p In such cases, it is appropriate to direct the counsel to make a mention
before the Chief Justice and obtain appropriate orders. This is essential
for smooth functioning of the Court. Though, on the judicial side the Chief
Justice is only the 'first amongst the equals', on the administrative side in
the matter of constitution of Benches and making of roster, he alone is
vested with the necessary powers. That the power to make roster exclusive-
G ly vests in the Chief Justice and that ~- daily cause list is to be prepared
under the directions of the Chief Justice as is borne out from Rule 73,
which reads thus :-
Rule 73. Daily Cause List.- The Registrar shall subject to such
H directions as the Chief Justice may give from time to time cause
-
STATE v. PRAKASH CHAND (DR. ANAND, J.] 21
to be prepared for each day on which the Court sits, a list of cases A
which may be heard by the different Benches of the Court. The
list shall also state the hour at which and the room in which each
Bench shall sit. Such list shall be known as the Ody's List."
This is the consistent view taken by some of the High Courts and this
Court which appears to have escaped the attention of Shethna, J. in the B
present case, when he directed the listing of certain part-heard cases before
him as a single Judge by providing a separate board for the purpose, while
sitting in a Division Bench.
In State v. Devi Dayal, AIR (1959) Allahabad 421, a Division Bench C
of the Allahabad High Court considered the scope and powers of the Chief
Justice under the Constitution with particular reference to Rule 1 Chapter
V of the Rules of that Court (which is in pa1i materia with Rule 54 of The
Rajasthan High Court Rules, 1952) and held : per Mukerji, J. :
"....... .It is clear to me, on a careful consideration of the con- D
stitutional position, that it is only the Chief Justice who has the
right and the power to decide which Judge is to sit alone and which
cases such Judge can decide; further it is again for the Chief Justice
to determine which Judges shall constitutes Division Benches and
what work those Benches shall do. Under the rules of this Court,
the rule that I have quoted above, it is for the Chief Justice to allot E
work to judges and Judges can do only such work as is allotted to
them.
It is not, in my view, open to a Judge to make an order which
could be called an appropriate order, unless and until the case in F
which he makes the order has been placed before him for orders ·
either by the Chief Justice or in accordance with his directions. Any
order which a Bench or a single Judge may choose to make in a case
that is not placed before them or him by the Chief Justice or in
accordance with his directions is an order which in my opinion, if
made, is without jurisdiction." G
(Emphasis ours)
In his separate but concurring opinion H.P. Asthana, J. observed :
"Rule 1, Chapter V, of the Rules of this Court, provides that Judges H
'·°'
I
22 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A shall sit alone or in such Division Courts as may be constituted
from time to time and do such work as may be allotted to them
. by order of the Chief Justice or in accordance with his directions.
It will appear from a perusal of the above provisions that the
High Court as a whole consisting of the Chief Justice and his
B companion Jhdges has got the jurisdiction to entertain any case
either on the original side or on the appellate or on the revisional
side for decision and that the other Judges can hear only those
matters which have been allotted to them by the Chief Justice or
under his directions. It, therefore, follows that the Judges do not
c have any general jurisdiction over all the cases which the High
Court as a whole is competent to hear and that theirs jwisdiction
is limited only to such cases as are allotted to them by the Chief
Justice or under his directions."
(Emphasis supplied) ..
D
A Full Bench of the Rajasthan High Court in Niranjan Singh v. State,
AIR (1974) Rajasthan 171 also examined the ambit and scope of the
provisions of the Rajasthan High Court Rules, 1952 and in particular of
Rules 54, 55, 61, 66, 74 etc. with regard to the powers of the Chief Justice
E in the matter of constitution of Benches and allocation of work to his
companion Judges. The Bench opined :
"It is therefore the responsibility of the Chief Justice to con-
stitute the Division Courts of Benches. The Judges are required
to sit alone or in the Division Benches and, in either case, do such
F work as may be allotted to them by order of the Chief Justice or
in accordance with his direction. This power to allot the work to
the Judges cannot be taken away, in face of the clear provision of
rule 54, merely because a date of hearing, has been fixed in a case
by a particular Bench ....... .
G The Chief Justice has therefore the power "from time to time"
to direct that any particular case or class of cases may be heard
by a Bench of two or more Judges even though it may, ordinarily
fall to be heard by a single Judge. It is well settled that the meaning
of the words "from time to time" is that "after once acting the donee
H of the power may act again; and either independently of, or by
STATE v. PRAKASH CHAND [DR. ANAND, J.] 23
adding to, or taking from or reversing altogether, his previous act", A
Stroud's Judicial Dictionary. It cannot, in such a case, be said that
the person who has the power to act has "completely discharged
his duty when he has once acted." The words " from time to time"
have therefore been interpreted to mean "as and when it is ap-
propriate so to do" : Re Von Dembinska, Ex Party The Debtor, B
(1954) 2 All ER 46. It is thits clearly pennissible for the Chief Justice
to reverse any earlier order of allotment of any pa1ticular case or class
of cases to a Judge sitting alone, and to direct that it may be heard
by a Bench of two or more Judges ....... .
There is nothing in the rule to justify the argument that wch a C
case should always be treated as "tied up" with a Bench simply
because it has once fixed the date of its hearing or that with the
-
exception of a case in which a Bench has directed the issue of
notice to the opposite party or passed an ex party order all other
cases should be deemed to be part-heard. On the other hand, the
use of the word "ordinarily" goes to show that if there are extra-ordi- 0
nary reasons, even a pmt-heard case may not be laid before the same
bench for disposal. So far as the second sentence of Rule 66(1) is
concerned, it is really in the nature of an illustration, or an
explanation."
E
(Emphasis ours)
In State of Maharashtra v. Narayan Shamrao Puranik, AIR (1982) SC
1198, referring to the power of the Chief Justice to make roster, this
court opined :
F
"The Chief Justice is the master of the roster. He has full power,
authority and jurisdiction in the matter of allocation of business of
the High Court which flows not only from the provisions contained
in sub-s. (3) of S.51.of the Act, but inheres in him in the very nature
of things."
G
Again, a Full Bench of the Madras High Court in Mayavaram Finan-
i:ial Corporation Ltd. v. The Registrar of Chits, (1991) 2 L.W. 80, opined:
"17te Hon'ble the Chief Justice has the inherent power to allocate
the judicial business of the High Cowt including who of the Judges H
24 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A should sit alone and who should constitute the Bench of two or more
Judges. No litigant shall, upon such constitution of a Bench or .
allotment of a case to a particular Judge of the Court will haw a ·•
right to question the jurisdiction of the Judges or the Judge heariijg
the case. No person can claim as a matter of right that this petition
be heard by a single Judge or a Division Bench or a pmticular single
B
Judge or a pmticular Division Bench. No Judge or a Bench of Judges
will assume jurisdiction unless the case is allotted to him or them
under the orde1~· of the Hon 'ble the Chief Justice."
More recently, in the case of fllder Mani v. Matheshwmi Prasad,
C (1996] 6 SCC 587, a Division Bench of this Court has opined :
"
"It is the prerogative of the Chief Justice to constitute benches
of his High Court and to allocate work to such benches. Judicial
discipline requires that the puisne Judges of the High Cowt comply
with directions given in this regard by their Chief Justice. Infact it is
their duty to do so. Individual puisne Judges cannot pick and choose
-
the matters they will hear or decide nor can they decide whether to
sit singly or in a Division Bench. When the Chief Justice had
constituted a Division Bench of Justice V.N. Khare and the learned
E Judge, it was incumbent upon the learned Judge to sit in a Division
Bench with Justice V.N. Khare and dispose of the work assigned
to this Division Bench. It was most improper on his pwt to disregard
the administrative directions given by the Chief Justice of the High
Cowt and to sit singly to take up matters that he thought he should
take up. Even if he was originally shown as sitting singly on
F 22.12.1995, when the Bench was reconstituted and he was so
informed, he was required to sit in a Division Bench on that day
and was bound to carry out this direction. If there was any difficul-
ty, it was his duty to go to the Chief Justice and explain the situation
so that the Chief Justice could then give appropriate directions in
G that connection. But he could not have, on his own, disregarded
the directions given by the Chief Justice and chosen to sit singly.
We deprecate this behaviour which totally undemiines judicial dis-
cipline and proper functioning of High Court."
H (Emphasis supplied)
I
.-
'
'
)'
STATE v. PRAKASH CHAND [DR. ANAND, J.] 25
The power of the Chief Justice of the Rajasthan High Court to direct A
that any case or cases which may ordinarily be heard by a Judge sitting
alone shall be heard by a Bench of two or more Judges is traceable not
only to his powers under Rule 54 (supra) but also specifically to Rule 55
of the Rules. Cases involving constitutional questions or issues are required
to be heard not by a single Judge but by a Bench of at least two judges.
B
Rule 55. Jurisdiction of a Single Judge. - Except as provided by
these Rules or other Law, the following cases shall ordinarily be
admitted, heard and disposed of by a Judge sitting alone, namely;
c
(xi) the writ petition under Articles 226 and 227 of the Con-
stitution oflndia, except the writ petitions challenging the vires, of
the provisions of any Act or Rules made thereunder and Writs
against the order of the Board of Revenue, the RAJASTHAN
State Service Appellate Tribunal. D
(xii) an application under Article 228 of the Constitution of
India and the case withdrawn under the said Article :
Provided that -
E
(a) the Chief Justice may, from time to time direct that any
case or class of cases which may be heard by a Judge sitting alone
shall be heard by a Bench of two or more Judges,
(b) a Judge may, if he thinks fit, refer a case which may be
heard by a Judge sitting alone on any question or questions of law
F
arising therein for decision to a Bench of two Judges; and
Rule 66 of the High Court Rules deals with tied up cases while Rule G
74 deals with part - heard cases. These Rules read as follows :-
Rule 66. Tied up cases. (1) A case partly heard by a Bench shall
ordinarily be laid before the same Bench for disposal. A case in
which a bench has merely directed notice to issue to the opposite
party or passed an ex parte order shall not be deemed to be a case H
26 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
'A partly heard by such Bench.
(2) Where a criminal revision has been admitted on the ques-
tion of severity of the sentence only, it shall ordinarily be heard by
the Bench admitting it."
B Rule 74. Pait-heard cases.- A case which remains part-heard at
the end of the day shall, unless otherwise ordered by the Judge or
Judges concerned, be placed first after miscellaneous cases, if any,
in the Day's List for the day on which such Judge or Judges next
sit. Every part-heard case entered in the Day's List may be
proceeded with whether any Atlvocate appearing in the case is
c
present or not.
Provided that if any part-heard case cannot be heard for more
than two months on account of the absence of any Judge or Judges
constituting the Bench, the Chief Justice may order such part-
D heard case to be laid before any other Judge or Judges to be heard
afresh."
Thus, cases involving challenge to the vires of any Act or Rules or which
involve constitutional issues are reqmred to be heard by a Bench of two or
more Judges under Rule 55 (xi) (supra). Under proviso (a) to Rule 55 (xi)
E (supra) the Chief Justice may, from time to time, direct that " any case or
class of cases which may be heard by a Judge sitting alone shall be heard
by a bench of two or more Judges". Proviso (b) to the Rule enables
reference to the Division Bench of a case on any question or questions by
a single Judge himself. The jurisdiction under proviso (a) can be exercised
F by the Chief Justice "at any time" and therefore it makes no difference that
the case to be referred to the larger bench under the Rules is a part-heard
case before a particular single Judge.
Under Rule 74 (supra), a case which remains part heard at the end
of the day, is ordinarily required to be heard by the concerned Judge or
G the Judges sitting next and is to be placed first after miscellaneous cases
in the next list but that does not imply that the Chief Justice does not have
the power or jurisdiction to transfer even a part-heard case, in the peculiar
facts and circumstances of a case, from a single judge to a Division Bench
in exercise of the jurisdiction vested in the Chief Justice under proviso (a)
H to Rule 55 (xi) (supra).
STATE v. PRAKASHCHAND[DR.ANAND,J.] 27
A Division Bench of the Calcutta High Court in the case of Sohan A
· Lal Baid v. State of West Bengal, AIR 1990 Calcutta 168 has dealt with this
aspect elaborately. After referring to the provisions of the Government of
India Act 1935, the Calcutta High Court Rules and a number of decided
cases, the Bench observed :-
B
"The foregoing review of the constitutional and statutory
provisions and the case law on the subject leaves no room for doubt
or debate that once the Chief Justice has determined what Judges
of the Court are to sit alone or to constitute the several Division
Courts and has allocated the judicial business of the Court amongst
them, the power and jurisdiction to take cognizance of the respec- C
tive classes or categories of cases presented in a formal way for
their decision, according to such determination, is acquired. To
put it negatively, the power and jurisdiction to take cognizance of
and to hear specified categories or classes of cases and to adjudi-
cate and exercise any judicial power in respect of them is derived D
only from the determination made by the Chief Justice in exercise
of his constitutional, statutory and inherent powers and from no.
other source and no cases which is not covered by such determina-
tion can be entertained, dealt with or decided by the Judges sitting
singly or in Division Courts till such determination remains opera-
tive. Till any detennination made by the Chief Justice lasts, no Judge E
who sits singly can sit in a Division Bench nor can a Division Bench
be split up and one or both of the Judges constituting such Bench sit
singly or constitute a Division Bench with another Judge and take up
any other kind of judicial business. Even cases which are required
to be heard only by a particular single Judge or Division Bench, such F
as part-heard matters, review cases etc., cannot be heard,· unless the
Judge concemed is sitting singly or the same Division Bench has
assembled and has been taking up judicial business under the extant
detennination. Such reconstitution of Benches can take place only if
the Chief Justice specially detennines accordingly."
G
(Emphasis ours)
A full Bench of the Allahabad High Court in Sanjay Kumar Srivas-
tava v. Acting Chief Justice & Ors., W.P. 2332 (H.B.) of 1993 decided on
7.10.1993 (1996) Allahabad Weekly Cases 644 was confronted with a H
28 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A similar situation. The Full Bench precisely dealt with an objection raised
in that case to the effect that since the writ petition was a part-heard matter
of the Division Bench, it was not open to the Chief Jl)Stice of the High
Court to refer that part-heard case to a Full Bench for hearing and
decision. It was argued before the Full Bench, that once the hearing of the
case had started before the Division Bench, the jurisdiction to refer the
B case or the question involved therein to a larger bench vests only in the
Judges hearing the case and not in the Chief Justice. It was also argued
that the Chief Justice could not, even on an application made by the Chief
Standing Counsel, refer the case which had been heard in part by a
Division Bench for decision by a Full Bench of that Court.
c After referring to the provisions of the Rules of the Allahabad High
Court and in particular Rule 1 of Chapter V, which provides that Judges
shall sit alone or in such division courts as may be constituted by the Chief
Justice from time to time and do such work as may be allotted to them by
order of the Chief Justice or in accordance with his directions and Rule 6
D of Chapter V which inter alia provides :
"The Chief Justice may constitute a Bench of two or more Judges
to decide a case or any question of law formulated by a Bench
hearing a case. In the latter event the decision of such Bench on
the question so formulated shall be returned to the Bench hearing
E
the case and that Bench shall follow that decision on such question
and dispose of the case after deciding the remaining questions, if
any, arising therein."
and a catena of authorities, rejected the arguments of the learned counsel
F and opined that the order of the Chief Justice, on an application filed by
the Chief Standing Counsel, to refer a case, which was being heard by the
Division Bench, for hearing by a larger Bench of three Judges because of
the peculiar facts and circumstances as disclosed in the application of the
Chief Standing Counsel, was a peifectly valid and a legally sound order. The
G Bench speaking through S. Saghir Ahmad, J. (As His Lordship then was)
said:
"Under Ruic: 6 of Chapter V of the Rules of Court, it can well be
brought to the notice of the Chief Justice through an application or
even otlte1wise that there was a case which is required to be heard
H by a larger Bench 011 account of an imp01ta11t question of law being
STATE v. PRAKASH CHAND [DR.ANAND,J.] 29
i11volved in the case or because of the conflicting decisions on the A
point in issue in that case. If the Chief Justice takes cogniza11ce of
an application laid before him under Rule 6 of Chapter V of the
Rules of Court and constitutes a Bench of two or more Judges to
decide the case, he cannot be said to have acted in violation of any
statutory provisions."
B
The learned Judge then went on to observe :
"In view of the above, it is clear that the Chief Justice enjoys a
special status not only under Constitution but also under Rules of
Court, 1952 made in exercise of powers conferred by Article 225 C
of the Constitution. T!ie Chief Justice alone can dete11ni11e jwisdic-
tion of various Judges of the Court. He alone can assign work to a
Judge sitting alone a11d to the Judges sitting in Division Bench or to
Judges sitting in Full Bench. He alone has the jwisdiction to decide
which case will be heard by a Judge sitting alone or which case will
be heard by two or more Judges. D
The conferment of this power exclusively on the Chief Justice is
necessary so that various Courts comprising of the Judges sitting
alone or in Division Bench etc., work in a co- ordinated manner
and the jurisdiction of one court is not overlapped by other Court. E
If the Judges were free to choose their jwisdiction or a11y choice was
given to them to do whatever case they may like to hear and decide,
the machinery of the Cowt would collapse a11d the judicial fu11ction-
ing of the Cowt would cease by generation of internal stnfe on
account of hanke1i11g for a particular jwisdiction or a pmticular case.
The nucleus for proper functioning of the Court is the "self' and F
"judicial" discipline of Judges which is sought to be achieved by
Rules of Court by placing in the hands of the Chief)ustice full
authority and power to distribute work to the Judges and to
regulate their jurisdiction and sittings."
G
(Emphasis ours)
The above opinion appeals to us and we agree with it. Therefore,
from a review of the statutory provisions and the cases on the subject as
rightly decided by various High Courts, to which reference has been made
by us, it follows that no judge or a Bench of judges can assume jurisdiction H
30 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A in a case pending in the High Court unless the case is allotted to him or
them by the Chief Justice. Strict adherence of this procedure is essential
for maintaining judicial discipline and proper functioning of the Court. No
departure from it can be permitted. If every judge of a High Court starts
picking and choosing cases for disposal by him, the discipline in the High
B Court would be the casualty and the Administration of Justice would suffer.
No legal system can permit machinery of the court to collapse. The Chief
Justice has the authority and the jurisdiction to refer even a part-heard
case to a Division Bench for its disposal in accordance with law where the
Rules so demand. It is a complete fallacy to assume that a part-heard case
can under no circumstances be withdrawn from the Bench and referred to
C a larger bench, even where the Rules make it essential for such a case to
be heard by a larger Bench.
In the instant case, it was the statutory duty of the Chief Justice to
assign writ petition No. 2949of1996 to a Division Bench of the High Court
fur hearing since it involved constitutional issues and Rule 55 of the High
D Court Rules required such a case to be so heard. No exception whatsoever
could, therefore, be taken to the order of the Chief Justice made on 9.9.97,
referring that writ petition for hearing to a Division Bench. In the facts and
circumstances of the case the Chief Justice was statutorily obliged to take
cognizance of the application filed by the Additional Advocate General of
E the State and pass appropriate orders. He could not shut his eyes as
regards the requirements of Rule 55 (supra) only because a single judge
of the High Court was treating the case as part-heard. The correctness of
the order of the Chief Justice could only be tested in judicial proceedings
in a manner known to law. No single Judge was competent to find fault
with it.
F
As earlier noticed, on 11.9.97 a separate board was prepared for
Shethna, J. under directions of the Chief Justice in view of the order made
by Shethna, J on 8.9.1997 and part heard criminal revision petitions and
writ petitions were placed before his Lordship. Since, writ petition No.
G 2949/96 had not been put up along with the other part heard cases,
Shethna, J., as it appears from the impugned order, sent for Mr. Madani
(the dealing officer from the registry) to explain as to why that writ petition
had not been placed before him? Mr. Madani informed him, as is noticed
H
in the impugned orders, that since the writ petition had already been
disposed of it was not listed before him. The learned Judge directed Mr. [
STATE v. PRAKASHCHAND(DR.ANAND,J.] 31
Madani to produce the original record of that writ petition which was A
produced before him on 12.9.97, on which date the learned Judge directed
that the papers of (SB Civil W.P. No. 2949/96) "be kept with this case" (Cr!.
Revision Petition) even though there was no connection or relevance
- between the two cases. In our considered opinion Shethna, J. did not have
any authority, statutory or otherwise - nor was it necessary - to call for the B
record of the above Writ Petition : firstly because it stood already disposed
of by a Division Bench and secondly because it was totally unrelated to and
unconnected with the criminal revision petition he was to hear. Therefore,
it appears that the record was sent for not for mere perusal but for some
other purpose, not strictly judicial. This becomes quite obvious from the C
fact that while stating "brief reasons for not placing Writ Petition No.
2949/96" before him, Shethna; J. observed :
"If the writ petition had really become infructuous then the same
statement could have been made before this court when this court
treated the matter as part heard and this court would have also D
passed the same order provided it had really become infructuous.
The most interesting part of it is that the matter was disposed of
by Division Bench without the second set"and only on one set the
Division Bench passed the order."
E
The aforesaid observations cast uncalled for aspersions not only against the
learned counsel for the writ petitioner who had made the statement before
the Division Bench but also against the learned Judges constituting the
Division Bench. To say the least it was improper on the part of the learned
Judge to have cast aspersions on the conduct of the counsel and the Bench
in relation to a disposed of matter, in a wholly unconnected judicial
F
proceedings. In doing so he transgressed all bounds of judicial propriety
and discipline.
The insinuations made by Shethna, J against the Chief Justice of the
High Court for transferring the Writ Petition to the Division Bench are not G
only uncalled for, unwarranted and unjustified but are also subversive of
proper judicial discipline. To insinuate, as the learned Judge does, that the
writ petition was got 'disposed of in 'suspicious' circumstances is wholly
wrong and devoid of sobriety expected of a judicial officer. The insinuation
also amounts lo contempt of the Division Bench as it implies that the H
32 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A Judges of the Division Bench were so "amenable". The insinuations are
aimed at bringing the administration of justice into disrepute and tend to
shake public confidence in the impartiality of the judiciary. The
observations, insinuations and aspersions lack courtesy and good faith.
Judicial restraint has been thrown to the winds. It is unbecoming of a Judge
B of the High Court to travel out of the confines of the issue before him (in
this case the criminal revision petition) and to fish out material to
unjustifiably malign someone more particularly when that someone
happens to be the one who is the head of the judicial family in that High
Court. We most strongly deprecate this practice.
c In the case of Braj Kishore Thakur v. Union of India, [1997) 4 SCC
65, while expunging some adverse remarks made by the High Court against
a Judge of the subordinate court, this Court said :
"Judicial restraint is a virtue. A virtue which shall be con-
D comitant of every judicial disposition. It is an attribute of a Judge
which he is obliged to keep refurbished from time to time, par-
ticularly while dealing with matters before him whether in exercise
of appellate or r~visional or other supervisory jurisdiction. Higher
courts must remind themselves constantly that higher tiers are
provided in the judicial hierarchy to set right errors which could
E possibly have crept in findings or orders of courts at the lower
tiers. Such powers are certainly not for belcl~ing diatribe at judicial
personages 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 .....
F
No greater damage can be caused to the administration of
justice and to the confidence of people in judicial institutions when
Judges of higher courfs publicly express lack of faith in the subor-
dinate Judges. It has been said, time and again, that respect for
judiciary is not in hands by using intemperate language and by
G casting aspersions against lower judiciary. It is well to remember
that a judicial officer against whom aspersions 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 restraint and adopt greater care when they are tempted to
/_
H employ strong terms against the lower judiciary."
I
STATE v. PRAKASH CHAND [DR. ANAND, J.] 33
What was said in relation to the Judges of the lower judiciary applies A
J with equal force lo the judges of the superior judiciary.
In A.M. Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533, this
Court said :
"Judicial restraint and discipline are as necessary to. the orderly B
administration of justice as they are lo 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 independence of the judiciary. Respect to those who come C
before the court as well to other co-ordinate branches of the State,
the executive and the legislature. There must be mutual respect.
When these qualities fail or when litigants and public believe that
the judge has failed in these qualities, it will be neither good for
the judge nor for the judicial process. D
The Judge's Bench is a seat of power. Not only do Judges have
--~
power to make binding decision, their deci.sions legitimate the use
of power by other officials. 171e judges have the absolute and
unchallengeable control ?f the court domain. But they cannot E
misuse their authority by intemperate comments, undignified banter
or scathing oiticism of counsel, parties or witnesses. We concede
that the court has the inherent power to act freely upon its own
conviction on any matter coming before it for adjudication, but it
is a general p1inciple of the highest imp01tance to the proper ad-
ministration of justice that derogatO!y remarks ought not to be made F
against persons or authorities whose conduct comes into. considera- .
tion unless it is absolutely necessary for the decision of the case.
(Emphasis supplied)
There is one other disquieting and disturbing aspect of the matter G
and that is that the learned judge has cast aspersions and' made insinuations
against the Chief Justice and the Judges constituting the Division Bench,
who had passed judicial orders in the writ petition·. They have had no
chance or opportunity to reply to those aspersions and insinuations. By the
very nature of their office, the Judges of the Supreme Court or the High H
'>'
34 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Court, cannot enter into a public controversy and file affidavits to repudiate
any criticism or allegations made against them. Silence, as an option,
becomes necessary by the very nature of the office which the Judges hold.
Those who criticise the Judges in relation to their judicial or administrative
work, must remember that the criticism, even if outspoken, can only be of
the judgment but not of the Judge. By casting aspersions on the Judges
B personally or using intemperate language against them, the critics, who ever
they may be, strike a blow at the prestige of the institution and erode its
credibility. That must be avoided at all costs. Shetllna, J must be presumed
to be aware of this and yet he permitted himself the liberty to make
intemperate comments and disparaging and derogatory remarks against the
c Chief Justice and his Brother Judges as also the former Chief Justices of
that court including the present Chief Justice of India who cannot reply or
respond to the unfoun·ded charges. It is not merely a case of lack of judicial
restraint but it amounts to abuse and misuse of judicial authority and
I
betrays lack of respect for judicial institution. Besides wheri made reckless-
D ly (as in the instant case) it amounts to interference with the judicial
process. The foundation of our system which is based on the independence
and impartiality of those who man it, will be shaken if disparaging and
derogatory remarks are permitted to be made against brother Judges with
impunity. It is high time that we realise that the much cherished judicial
independence has to be protected not only from outside forces but also
E from those who are an integral part of the system. Dangers from within
have much larger and greater potential for harm than dangers from out-
side. We alone in the judicial family can guard against such dangers from
within. One of the surer means to achieve it is by the Judges remaining
circumspect and self-disciplined in the discharge of their judicial functions.
F We have been really distressed by the manner in which the learned Judge
has acted. We do not wish to say anymore on this aspect.
,
Thus, for what has been said above, we hold that all comments,
observations and aspersions made by Shethna, J. against the Chief Justice
and the learned Judges constituting the Division Bench are without any
G justification or jurisdiction and bear no relevance to the case which was
before the learned.Judge and the same deserve to be set aside and
expunged from the record.
That brings us to the next question relating to the propriety of
H issuanee of notice to the Chief Justice of the High Court to show cause
STATE v. PRAKASHCHAND[DR.ANAND,J.] 35
why contempt proceedings be not initiated against him. In substance the A
contempt that is alleged to have been committed by the Chief Justice of
the High Court respondent No. 2, is in "transferring" W.P. No. 2949/96
which had been heard in part by Shethna J. to a Division Bench for its
disposal and for not placing that writ petition alongwith "other part heard
cases" before the learned Judge despite his.orders to that effect. As already B
noticed Shethna, J. had twice on 3.9.97 and 8.9.97, directed criminal
revision petition No. 354/97 to be listed alongwith "other part heard cases"
before him. The great anxiety to hear "other part-heard cases" alongwith
the criminal revision petition, on a date when the learned Judge was sitting
in the Division. Bench exposes an undue interest in some matter, iwhich
again is against judicial discipline. Perhaps Writ Petition No. 2949/96 was C
one such part-heard case which the learned Judge, for reasons best known
to him, was keen to hear. We have dealt with in an earlier part of this
Judgment as to how and why W.P. 2949/96 was referred by the learned
Chief Justice for hear~g to the Division Bench. We need not repeat it.
Suffice it, to notice that a judicial order had been passed by the Chief D
Justice allowing the application filed by the Additional Advocate General
under Rule 55 for referring the writ petition, for its disposal, to a Division
bench. Shethna, J. therefore had no jurisdiction to question the correctness
of that order more so in some unconnected and unrelated collateral
proceedings. The withdrawal of the part-heard writ petition from the board
of Shethna, J. and its transfer to the Division Bench for its disposal in view E
of the requirements of Ruic 55, was an action squarely permitted by the
Rules and in conformity with the statute. It was an action of the Chief
Justice backed by statutory sanction. That order of the Chief Justice was
legally valid and unexceptionable.
F
We entirely. agree with the learned Solicitor General that the is-
suance of a notice to the Chief Justice to show cause why proceedings
under the Contempt of Court Act be not initiated against him for transfer-
ring the part-heard writ petition No. 2949/96 to the Division Bench for
hearing, is not only subversive of judicial discipline and illegal but is also G
without jurisdiction. No such notice could be issued to the Chief Justice
since the order referring the case to the Division Bench was an order
legally made by the Chief Justice in exercise of his statutory powers. Such
an order can never invite initiation of contempt proceedings against him.
The issuance of notice smacks of judicial authoritarianism and is not
permissible in law. H
36 SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.
A Even otherwise, it is a fundamental principle of our jurisprudence
and it is in public interest also that no action can lie against a Judge of a
Court of Record for a judicial act done by the Judge. The remedy of the
aggrieved party against such an order is to approach the higher forum
through appropriate proceedings. This immunity is essential to enable the
-
B Judges of the Court of Record to discharge their duties without fear or
favour, though remaining within the bounds of their jurisdiction. Immunity
from any civil or criminal action or a charge of contempt of court is
essential for maintaining independence of the judiciary and for the strength
of the administration of justice. The following passage from Oswalds's
Contempt of Court, 3rd Edn. 1993 (Reprint) in this behalf is apposite :
c
1'.An action will not lie against a Judge of a Court of Record for a
wrongful commitment in the exercise of his judicial duties, any more
than for an e"o11eous judgment(s). But the Divisional Court refused
to strike out as disclosing no cause of action a statement of claim
D in an action for malicious prosecution brought against certain
Judges of the Supreme Court of Trinidad for having (as it was
alleged) of their own motion, and without any evidence, caused
the plaintiff to be prosecuted and committed to prison for an
alleged contempt of the Supreme Court in forwarding to the
Governor of the Colony for transmission to the Queen in Council
E a petition of appeal complaining of the oppressive conduct of the
defendants as Judges(t). At the trial of this case before Lord
Coleridge, CJ., the jury f ou11d as regards one of the defendants that
'11e had overstrained" his judicial powers, and had acted in the
administration of justice oppressively and maliciously to the
''prejudice of the plaintiff and to the perversion of "justice". T11e jury
assessed the damages at pounds 500. Notwithstanding the verdict.
Lord Coleridge ordered judgment to be entered for the defendant.
This judgment was affimied by the Court of Appeal. Lord Esher,
M.R, in delivering the judgment of the Court, said. "If any Judge
exercises his jurisdiction from "malicious motives, he has been guilty
G of a gross "dereliction of duty". And after saying that a Judge was
liable to be removed from his office for such conduct Lord Esher
went on to say that the common law clearly was that no action lay
against a Judge of a Court of Record "for doing something within his
jurisdiction but "doing it maliciously and contrary to good faith".
H (Emphasis ours)
STATE v. PRAKASH CHAND [DR.ANAND,J.] 37
Thus no action could lie against the Chief Justice acting judicially for doing A
something within his jurisdiction even if the order is patently erroneous and
unsustainable on merits. Commenting upon the extent of immunity which
the Judges of the superior courts must have for preserving independence
of the judiciary, the authors of Salmond and Heuston on the Law of Torts,
21st" Edn. 1996 in Chapter XIX observe : B
"A judge of one of the superior courts is absolutely exempt from
all civil liability for acts done by him in the execution of his judicial
functions. His exemption from civil liability is absolute, extending
not merely to errors of law and fact, but to the malicious, corrupt,
or oppressive exercise of his judicial powers. For it is better that C
occasional injustice should be done and remain unredressed under
the cover of this immw1ity than that the independence of the judica-
- ture and the strength of the administration of justice should be
weakened by the liability of judges to unfounded and vexatious
charges of e"ors, malice, or incompetence brought against them by D
disappointed litigants- "otherwise no man but a beggar, or a fool,
would be a judge."
(See Arenson v. Casson, Beckman Rutley & Co., (1977) AC 405 at
p. 440, per Lord Fraser).
E
(Emphasis supplied)
Even under the Judicial Officers' Pro!ection Act 1985 immunity has
been given to judicial officers in relation to judicial work done by them as
well as for the judicial orders made by them. The statement of objects and
reasons for introducing the Bill in relation to the 1985 Act which reads thus F
is instructive :
"Judiciary is one of the main pillars of parliamentary democracy
as envisaged by the Constitution. It is essential to provide for all
immunities necessary to enable Judges to act fearlessly and impar- G
tially in the discharge of their judicial duties. It will be difficult for
the Judges to function if their actions in court are made subject to
legal proceedings, either civil or criminai."
Section 16(1) of the Contempt of Court Act 1971 does not apply to the
Judges of the court of record but only to the subordinate judiciary. H
38 SUPREME COURT REPORTS [1997] SUPP. 6 S.CR.
A The issuance of a notice to show cause why contempt proceedings
be not initiated against respondent No. 2, the Chief Justice of. the High
Court, by Shethna, J. in the facts and circumstances of this case is thus
wholly illegal, unwarranted and without jurisdiction. Issuance of such a
notice is also misconceived since by no stretch of imagination can it be said
B that there was any interference in the administration of justice by the Chief
Justice in exercising his statutory powers to allocate work to puisne Judges
and to the division benches. The order of reference of the part-heard writ
petition to the Division Bench for its disposal, as already noticed was
legally sound and statutorily valid. Such an action on the part of a Chief
Justice could never become a cause for issuance of contempt notice to him.
C To expect the Chief Justice to say so in response to the show cause notice
before the learned single Judge would be adding insult to injury. We cannot
countenance such a situation. The direction to issue show cause notice to
the Chief Justice, respondent No. 2 being totally misconceived, illegal and
without any jurisdiction and is wholly unsustainable. We quash the same.
D
This now takes us to that part of the order in which comments have
been made regarding drawal of D.A. and non-payment of charges for
occupation of Bungalow No. A/2, Jaipur by some of the former Chief
Justices of the Rajasthan High Court including the present Chief Justice
E of India, Mr. Justice· J .S. Verma, till 1994. The insinuation made is that all
of them had "illegally" drawn full dearness allowance of Rs. 250 per day to
which they were not entitled and their action amounted to "misappropria-
tion of public funds" because it is alleged that each one of them had been
"allotted free accommodation by the Govemment of Rajasthan". Shethna, J
discussed this aspect of the case in some details after relying upon
F materials which we do not find available in the record of Writ Petition No.
2949/96 and concluded:
· "From the above! it is clear that no Chief Justice of this Court was
paying any amount for his stay in Bungalow No. AJ2 at Jaipur prior
G to 10.6.1994 but all of them have illegally drawn full D.A. of Rs.
250 per day which is clear from Rule 2(l)(e) of the High Court
Travelling Allowance Rules, 1966 and sub-rule (iv) of the Rules
which is quoted in para 4 of the reply affidavit by the High Court
itself. The present CJI Hon'ble Mr. Justice J.S. Verma was also
H one of the former Chief Justice of this Court from 1986 to 1989.
STATE v. PRAKASHCHAND[DR.ANAND,J.] 39
He also initially stayed at Jaipur for 15 days and later on sat more A
at Jaipur than Jodhpur and illegally drew full D .A. of Rs. 250 per
day for his stay at Jaipur v.:ithout paying any charges to which there
was an audit objection which fact was on the record of this High
Court. The High Court Judges are drawing and disbursing
authorities and nobody else would come to know then in that case B
they should be; more careful while drawing such D.A. amount. It
is nothing but a mis-appropriation of the public fund which is a
criminal offence under the Penal Code."
Justification or propriety for making these comments apart, the C
validity of these comments/observations needs to be tested for procedural
propriety, factual accuracy and visible legal support.
So far as the procedural propriety is concerned, it need not detain
us much as admittedly, the comments have been made in respect of all the D
former Chief Justices of the Rajasthan High Court who held that high
, office till 1994, without putting them on any notice and behind their back.
1 All of them have been condemned unheard. It needs no discussion to say,
in the light of the settled law, that an order of this type which violates
essential principles of natural justice and is made behind the back of the E
affe~tee is wholly unsustainable. On this short ground, all those
comments/observations and conclusions arrived at by Shethna, J. are
required to be quashed and expunged. The learned Attorney General
submitted that the observations (supra) were both factually and legally not
sustainable and urged that keeping in view the high office of Chief Justice
of India we should test legal and factual validity of the observations also. F
We therefore do not propose to rest our order on grounds of procedural
infirmities and judicial propriety only. Both factually as well as legally the
observations/comments, tend, as the discussion shall presently expose, to
be the result of total disregard for propriety and decency as to make the
motives of the author suspect and in the process the Judge has made G
himself Coram-11011-judice.
Vide Section 2 of High Court of Rajasthan (Establishment of a
Permanent Bench at Jaipur) Order 1976, a Permanent Bench of the
Rajasthan High Court at Jaipur was established at Jaipur. H
40 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A Sec. 2. "Establishment of a Pemianent Bench of the RAJASTHAN
High Coun at Jaipur.- There shall be established a permanent
Bench of the High Court of Rajasthan at Jaipur, and such Judges
of the High Court of Rajasthan, being not less than five in number,
as the Chief Justice of that High Court may from time to time,
B nominate, shall sit at Jaipur in order to exercise the jurisdiction
and power for the time being vested in that High Court in respect
of cases arising in the districts of Ajmer, Alwar, Bharatpur, Bundi,
Jaipur, Jhalawar, Jhunjhunu, Kotah, Sawai Madhopur, Sikar and
Tonk:
c Provided ............ ..
According to the above provision, it is for the Chief Justice after the
constitution of the Bench at Jaipur to nominate, from time to time, at least
five Judges to sit at Jaipur to hear cases. The Judges so nominated are
D obliged to sit at Jaipur and do such work as is assigned to them. It is their
duty to do so. The duration of their sitting at Jaipur is to be determined
by the Chief Justice and he may determine it from time to time.
After the establishment of the Bench of the High Court at Jaipur
E in 1979, an order came to be made by the Government of Rajasthan
bearing No. F(116)/R.G./11/78 on 18.12.1979 declaring bungalow No.
A/2 at Jaipur as "High Court Guest House". As English translation of
that order reads :
"GOVT. OF RAJASTHAN
F GENERAL ADMINISTRATION (GR2) DEPTT.
To,
• The Registrar,
Rajasthan High Court,
G
Jodhpur.
No. F(116) G.A./11/78 Jaipur Dt. 18.12.79
Sub.: Regarding conversion of bungalow No. A-2
H Gandhi Nagar, as a guest house.
STATE v. PRAKASH CHAND [DR.ANAND,J.] 41
- Sir, A
In reference to your above DO letter No. PA/R/4211 dated·
28.5.97, use of bungalow No. A-2, Gandhi Nagar, as High Court
Guest Hosue is hereby sanctioned.
Yours B
Sd/-
Special Secretary to the Govt."
By another order of the State Government dated 21.8.1991, Bun-
galow No . .C-42 at Jodhpur was also converted and declared as "High Court C
Guest House". Both the bungalows, N2 at Jaipur and C-42 at Jodhpur,
were placed at the disposal of the High Court of Rajasthan for their use
as High Court Guest Houses. Neither of the two bungalows was allotted
free of rent to any Chief Justice of the High Court. Chief Justice of the
High Court has been provided with a rent free official residence only at
Jodhpur under rules even though providing of an official bungalow to the D
Chief Justice at Jaipur would also have been in order since by the very
nature of his office, the Chief Justice could be required to sit at Jaipur also
both for administrative as well as judicial work, depending upon the
exigencies of the situation. It was only on 21.6.97, when for the first time,
the Government of Rajasthan allotted Bungalow No. N2 at Jaipur for the E
exclusive use of the Chief Justice and Bungalow No. NS at Jaipur was
declared as the High Court Guest House and placed under the control of
Rajasthan High Court. That order dated 21.6.1997 reads thus:
Govt. Bungalow No. A-2 Gandhi Nagar, Jaipur has been allotted
for the exclusive use of the Hon'ble Chief Justice of Rajasthan and F
Bungalow No. A-5, Gandhi Nagar, Jaipur has been converted and
allowed to be used as Guest House under the Control of Rajasthan
High Court.
The Governor of Rajasthan hereby accords sanction.
G
By order of the Governor
Sd/-
(Jagat Singh)
Secretary to the Govt. H
42 SUPREME COURT REPORTS [1997) SUPP. 6 S.C.R.
A The order dated 21.6.97 was amended on 1.8.97 in the following
manner:
"In continuation of the Order of this Office even number dated
21.6.97, the Bungalow No. A-2, Gandhi Nagar, Jaipur is hereby
converted for the exclusive use of Hon'ble Chief Justice, Rajasthan
B High Court as Guest House w.e.f. 21.06.97.
The Governor has accorded sanction.
By order of the Governor
c Sd/-
(Jagat Singh)
Secretary to the Govt.
Thus, what transpires from the record is that Bungalow No. N2 at
D Jaipur was declared as High Cowt Guest House by the Government of
Rajasthan as early as in 1979 and placed under the control of the Rajasthan
High Court. It was not allotted to the Chief Justice of the High Court -
free of rent·- nor was it allotted exclusively for the use of the Chief Justice
of that High Court as a Guest House till 1997 when that bungalow was
allotted for the exclusive use of the Chief Justice and by a subsequent order
E that Bungalow at Jaipur was declared as a "Guest House" for the exclusive
use of the Chief Justice. The High Court of Rajasthan under whose control
Bungalow No. N2 at Jaipur had been placed by the Government of Rajasthan
since 1979, did not fix or levy any charges for the occupation of that Bungalow
till 1994. It was being maintained by the High Court as a Guest house though
there were no boarding facilities provided in that Guest House.
F
Audit of the accounts of the High Court are conducted by the
Accountant General of Rajasthan from time to time. According to the
affidavit filed by the Registrar of the High Court, Shri Manak Mohta in
this Court, an audit objection was raised for the first time and conveyed to
G the High Court on 30.3.199 J regarding drawal of full daily allowance by the
Chief Justices, who had been provided "free Government accommodation" for
their stay at Jaipur. It would be useful to refer to that affidavit at this stage:
"Since the establishment of the permanent Bench at Jaipur on
31.1.1977 till 31.8.1988 there was no audit objection raised by the
H Accountant General of Rajasthan in any of its audit reports with
STATE v. PRAKASH CHAND [DR.ANAND,J.) 43
regards to drawal of daily allowance by former Hon'ble Chief A
Justice or Judges for their stay at Jaipur.
That------for the first time an audit objection with regard to drawal of
full daily allowance by former Hon'ble Chief Justices for their stay
at Jaipur was raised by the Accountant General of Rajasthan for B
the audit period from 1.9.1988 to 31.12.1990. The audit of. this
period was conducted from 8.1.1991 to 2.2.1991 which was com-
municated by the Accountar' General to the Registrar of Rajas-
than High Court and received on 30.3.1991, during the tenure of
former Hon'ble Chief Justice Shri KC. Agarwal, who occupied the C
office of the Chief Justice of Rajasthan with effect from 16.4.1990.
That similar audit objections were again raised for the period
1.1.1991to31.5.1993. The audit for this period was conducted from
15.6.93 to 9.7.93 and the audit report was communicated by the D
Accountant General' to the Registrar, Rajasthan High Court and
was received by him on 12.5.94. During this audit period the
... amount of audit objections with regard to Hon'ble Chief Justice
Shri J.S. Verma and Shri M.C. Jain remained the same whereas
the amount got increased for Hon'ble Chief Justice Shri KS.
Agarwal. E
That a similar audit objection was again raised in the audit period
from 1.6.93 to 1.1.1995. The audit of this period was conducted
from 13.2.1995 to 6.3.1995 and the communication was made by
the Accountant General to the Registrar, Rajasthan High Court F
which was received by him on 5.4.1995. During this period the
amount shown recoverable remained the same with regard to
Hon'ble Chief Justice Shri J.S. Verma and Shri M.C. Jain whereas
it increased in the case of Hon'ble Chief Justice Shri KC. Agarwal.
G
However prior to the receipt of such report, a decision was taken
by the Hon'ble Chief Justice Shri G.C. Mital on 10.6.1994 that His
Lordship would pay Rs. 10 per day as room rent and Rs.6 per day
for geyser/heater/air-conditioner, total being Rs. 16 per day which
was at par with prevalent Circuit House charges." H
44 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A With a view to meet audit objection, it appears· that on 10.6.1994,
following proposal was made by the Registrar of the High Court of
Rajasthan relating to the charges for stay in the High Court Guest House.
FIXATION OF CHARGES FOR HIGH COURT GUEST HOUSE A-2
JAIPUR ORDER DATED 10.06.94 BY REGISTRAR
B
"l. Regarding the payment of D.A. to the. Chief Justices during
their stay at Jaipur Audit Party of Accountant Gen. has objected
the use of House No. A-2 by the Chief Justices during their stay
at Jaipur because they have been allotted free government accom-
modation;
c
1. Hon'ble J.S. Verma
2. Hon'ble M.C. Jain
3. Hon'ble K.C. Aggarwal
D
2. In the above Govt. accommodation there is no arrangement of
boarding and breakfast and no post for the maintenance of A-2
has been sanctioned by the State Government. Therefore, in con-
nection with the objections the accommodation may be taken in
the category of Circuit House for which the rates prescribed by
E
the State Government is as under :
1. Single use Double bed Rs. 10
2. Two persons Double bed Rs. 10
F 3. If there is arrangement of geyser/heater/cooler Rs. 4 will be
charged extra and if air conditioning machine is there Rs. 6 instead
of Rs. 4 will be charged. Hence the above mentioned residence
may be taken in the category of the Circuit House.
G 4. So if Hon'ble Chief Justice is ready to pay the Charges at the
rate of Circuit House, they may claim full D.A. during their stay
at Jaipur.
Sd/-
H The above proposal was followed by the following noting :
STATE v. PRAKASH CHAND [DR. ANAND, J.] 45
"I have apprised the Hon'ble Chief Justice, the Rules position. A
His Lordships has agreed to pay the charges for his stay in the
Guest House as per Circuit House rate. The P.P.S. may be re-
quested to deposit the charges for the stay of Hon'ble Chief Justice
in the Guest House, A-2 at Jaipur."
Sd/- B
(G.L. Gupta)
18.6.94
Therefore, what emerges is that an objection was raised by the audit
party, while conducting audit from 8.1.1991 to 2.2.1991 for the period C
1.9.1988 to 31.12.1990 regarding drawal of full Daily Allowance by the
Chief Justices who according to the audit party had been provided "free
government accommodation" at Jaipur presumably treating Bungalow No.
N2 as "free government accommodation" allotted to the Chief Justices.
The audit objection, for the first time, was conveyed by the Accountant
General to the Registrar of the High Court and was received by the D
Registrar on 30.3.1991. The audit objection, thereafter, continued to be
repealed in the subsequent years after audits were conducted. Thus, it is
obvious that prior to 30.3.91, no audit objection had ever been conveyed
to the High Court let alone to any former Chief Justice of that Court. There
was no audit objection raised for any period prior to 1.9.88, even though E
the High Court Guest House, as already noticed, was being used for their
stay by various Chief Justices since 1979. Even after 10.6.94, the Chief
Justices of Rajasthan High Court kept on drawing their full daily allowance
though they started paying charges for occupation of the High Court Guest
House, Bungalow No. N2 at Jaipur, at the rates indicated in the Registrar's
note dated 10.6.1994 (supra). The charges were being paid to the High F
Court since the bungalow had been allotted to the High Court for its use
as a Guest House. Admittedly, at no point of time .did the High Court call
upon any former Chief Justice to deposit the arrears of charges for occupa-
tion of the Guest House after the charges were fixed in 1994.
G
Under the High Court Judges Travelling Allowance Rules 1956, the
Judges of the High Court w.e.f. 12.5.197.6 were entitled :
"(c) to a daily allowance at the rate of Rs. 35 for the entire
period of absence from headquarters, the absence being reckoned
from the time of departure from headquarters to the time of return H
46 SUPREME COURT REPORTS (1997)SUPP. 6 S.C.R.
A to headquarters :
Provided that the daily allowance so admissible shall be regu-
lated as follows :-
(i) full daily allowance for each completed day, that is, reck-
B oned from mid-night to mid-night;
(ii) for absence from headquarters for less than twenty-four
hours, the daily allowance shall be at the following rates, namely;-
(1) if the absence from headquarters does not exceed six hours,
c 90% of the full daily allowance.
(2) if the absence from headquarters exceeds six hours, but
does not exceed twelve hours, 50% of the full daily allowance;
(3) if the absence from headquarters exceeds twelve hours, full
D
daily allowance;
(iii) if the date of departure from and return to headquarters
fall on different dates, the period of absence from headquarters
shall be reckoned as two days and daily allowance shall be calcu-
E lated for each day as in clause (ii) :"
Subsequently, the rate of daily allowance was revised vide G.S.R. 1194 (E)
dated 7.11.1986 and the Judges were entitled :
"to a daily allowance at the rate of Rs. 100 for the entire period
F of absence from headquarters, the absence being reckoned from
the time to departure from headquarters to the time of return to
headquarters.
Provided that the daily allowance so admissible shall be regu-
lated as follows :-
G
(i) full daily allowance for each completed day, that is, reck-
oned from mid-night to mid-night;
(ii} for absence from headquarters for less than twenty-four
H hours, the daily allowance shall be at the following rates, namely:-
STATE v. PRAKASHCHAND(DR.ANAND,J.] 47
With effect from 4.12.1991 the rate of daily allowance was further A
enhanced:
"( e) to a daily allowance at the rate of (Rs. 250) for the entire
period of absence from headquarters, the absence being reckoned
from the time of departure from headquarters to the time of return
to headquarters. B
Provided that the daily allowance so admissible shall be regu-
lated as follows :-
(i) full daily allowance for each completed day, thatis, reek- C
oned from mid-night to mid-night;
(ii) for absence from headquarters for less than twenty-four
hours, the daily allowance shall be at the following rates,
namely:-
Thus, from 1976 to 7.11.1986, the daily allowance admissible to the
D
Judges, including the Chief Justice, was at the rate of Rs. 35 per day. It
was enhanced to Rs. 100 per day w.e.f. 7.11.1986 and further enhanced to
Rs. 250 per day w.e.f. 4.12.1991.
The provision on the basis of which the audit party has raised the E
objection as is apparent from the audit report is sub-clause _(E)(ii) of
para 2 of the High Court Judges Travelling Allowances Rules, 1956
which reads :
"When a Judge is a State Guest or is allo_wed to avail free board
and lodging at the expense of the Central or State Goverrui:ient or F
any autonomous industrial or commercial undertakings ar corpora-
tion or a statutory body or a local authority, in which Government
funds have beeri invested or in which Government have any other
interest, the daily allowance shall be restricted to 25 percent of the
amount admissible or sanctioned, and if only board or lodging is G
allowed free, the Judge may draw daily allowance at one half of
the admissible rate."
Before considering the application of the aforesaid provision to the
cases of the former Chief Justices of Raj"asthan High Court, who drew full
daily allowance while staying in the High Court Guest House at Jaipur, it H
48 SUPREME COURT REPORTS (1997) SUPP. 6 S.C.R.
A is desirable to examine the factual accuracy of the comments made by the t
I
learned single Judge.
From an analysis of the rule position relating to the drawal of daily
allowance by the Judges, it follows that it is a factually incorrect observation
B of Shethna, J that all the Chief Justices till 1994 had "illegally drawn full
daily allowance of Rs. 250 per day". Till 1991, the daily allowance, was
payable to the Judges either at the rate of Rs. 35 or Rs. 100 per day. It was
enhanced to Rs. 250 per day only w.e.f. 4.12.1991. No Chief Justice,
therefore, could have drawn a daily allowance of Rs. 250 prior to 4.12.91.
Specific reference has been made by Shethna, J to the present Chief Justir:e
C of India, Mr. Justice J .S. Verma who it is alleged had "illegally" drawn full
daily allowance of Rs. 250 per day inspite of an "audit objection", known
to the High Court. According to Shethna, J. :
"The present CH Hon'ble Mr. Justice J.S. Verma was also one
of the former Chief Justice of this Court from 1986 to 1989. He
D
also initially stayed at Jaipur for 15 days· and later on sat more at
Jaipur than Jodhpur and illegal drew full DA. of Rs. 250 per day
for his stay at Jaipur without paying any charges to which there
was an audit objection which fact was on the record of this High
Court."
E
One really wonders where the learned Judge got the figure of Rs.
250 per day as the D.A. for the period 1986-89, during which period
Verma, J. was the Chief Justice of the Rajasthan High Court. At no point
of time, as the Chief Justice of Rajasthan High Court had Justice J.S.
F Verma drawn a daily allowance at the rate of Rs. 250 per day for his stay
at Jaipur. Therefore, it is wrong to allege that Verma, J. had drawn daily
allowance at the rate of Rs. 250 per day, which rate became effective much
after Mr. Justice J.S. Verma had relinquished his office as the Chief Justice
of Rajasthan High Court on his elevation to the Supreme Court. Surely,
Shethna, J. could not have been unaware of this position. Why then did he·
G choose to record an incorrect fact is not understandable? Insofar as the
audit objection is concerned, as already noticed, the audit objection was
raised for the first time after the audit was conducted between 8.1.1991 to
2.2.1991 and conveyed to the High Court on 30.3. 1991. That audit objection
pertained to the period 1.9.1988 to 31.12.1990. There was therefore no
H question of any audit objection having been conveyed to the High Court
STATE v. PRAKASHCH,AND[DR.ANAND,J.] 49
till Justice Verma was elevated to the Supreme Court w.e.f. 3.6.1989. No A
audit objection had admittedly been raised during the tenure of Mr. Justice
J.S. Verma and it is an incorrect statement to say that such an audit
objection "was on the record of the High Court". Even after the audit
objection was for the first time conveyed to the Registrar of the High Court
on 31.3.1991, it was never communicated to Verma, J. at any point' of time. B
Shethna, J. has unfortunately 'distorted' facts, for reasons which can be any
body's guess. Thus, the allegations (supra) against Mr. Justice J.S. Verma
are factually incorrect and appear to have been made recklessly.
Legally, also the observations and comments of Shethna, J. are not
sustainable. According to sub-clause (E) (ii) of para 2 of the High Court C
Judges Travelling Allowances Rules, 1956, (supra) a Judge including a
Chief Justice is not entitled to draw the admissible full daily allowance, if
he has been declared either as a State Guest or is allowed to avail of free
boardi11g and lodgi11g at the expense of the Central or the State Government
. or any autonomous industrial or commercial u11de1taki11gs or corporation or D
a statutory body or a local authority i11 which the Govemment fll11ds have
been i11vested or i11 which the Government has a11y other i11terest. As already
noticed, bungalow No. A/2 at Jaipur had been declared as a High Cowt
Guest House by the State Government in 1.979 and placed at the disposal
of the High Court of Rajasthan. It had not been allotted as rent free
accommodation in favour of any Chief Justice. The charges of rent of E
Bungalow No. A/2 at .Jaipur were debited to the account of the High Court
of Rajasthan by the State Government. The Bungalow was in possession of
and under the control of the High Court of Rajasthan. Occupation of such
a building, with or without payment of charges was to be regulated by the
High Court of Rajasthan itself. The charges, if any, were to be fixed by the F
High Court of Rajasthan for occupation of the Guest House and those
charges were recoverable by the High Court of Rajasthan from the persons
occupying the Guest House. May be, the High Court only permitted the
Chief Justices to stay in that Guest House, but that was an internal
arrangement of the High Court and the Government had no say in it. The
Bungalow had been declared by the· Government· to be used as a Guest G
House of the High Court and placed under control of the High Court, 1101
exclusively for the Chief Justices from 1979 to 1997. If the High Court chose
not to fix any charges ever since 1979 when the Guest House was allotted
to the High Court till 1994, it cannot by any stretch of imagination be said
that the Chief Justices had been allotted "free Government accommoda- H
50 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A tion" for their stay at Jaipur in the High Court Guest House, so as to
disentitle them to draw full daily allowance at the admissible rates.
Providing free boarding/lodging at the expense of the Central or the
State Government or declaring the occupant as a "State Guest" is the sine
qua non for attracting sub-clause (E) (ii) of Para 2 of the Rules (supra),
B not entitling a Judge including the Chief Justice to draw full daily al-
lowance. After bungalow No. N2 had been declared as the High Court
Guest House in 1979, and placed under the control of High Court, the
State Government went out of the picture insofar as its use and occupation
was concerned. The stay in that Guest House even without charges, cannot
C by any rule of construction, be construed as providing "free lodging" at the
expense of the Central or State Government so as to attract the provision
of Para 2(ii) E of the Rules (supra). The Chief Justices were, therefore,
not disentitled to draw their full daily allowances at the rates admissible at
the relevant time. Even after the charges were fixed at the rate of Rs. 10
D or Rs. 16 per day for occupation of the Guest House in 1994 by the High
Court, the Chief Justices have continued to draw their full daily allowance
and not 50% of the D.A. They have paid charges to the High Court for
the use of the Guest House at the rate fixed by the High Court w.e.f.
10.6.1994. This appears to be quite in order and shows that the drawal of
daily allowance at the full rate has nothing to do with the stay in the High
E Court Guest House. Admittedly, no audit objection has been raised to the
drawal of the full daily allowance by the Chief Justices and payment of Rs.
10 or Rs. 16 per day for the occupation of the Guest house to the High
Court since June 1994. By no stretch of imagination can, therefore, it be
said that any of the Chief Justices, till 1994, had "illegally" drawn the full
F daily allowance to which they were not entitled to. The further observations
of Shethna, J. that :
"It is nothing but a mis-appropriation of the public fund which
is a criminal offence under the Penal Code."
G are not only based on wrong assumptions but are also legally unsound and
untenable.
It is also relevant in this connection to notice the contents of the
Additional Affidavit filed by the Registrar, High Court of Rajasthan in this
H Court. The relevant portion of that affidavit reads :-
STATE v. PRAKASH CHAND (DR. ANAND, J.] 51
"By way of a supplemental affidavit to my earlier affidavit dated A
2.11.1997, it is respectfully submitted that the Hon'ble Judges as
and when they retired or are transferred or are appointed as
Judges of the Hon'ble Supreme Court are issued Last Pay Certifi-
cate by the Concerned District Treasury Officer of the Govern-
ment of Rajasthan.
B
The Last Pay Certificates issued to Hon'ble Mr. Chief Justice
J.S. Verma (the then Chief Justice of High Court of Rajasthan) on
appointment as Judge of this Hon'ble Court, and Hon'ble Mr.
Justice K.C. Agarwal (the then Chief Justice of High Court of
Rajasthan) on his trarisfer as Chief Justice of Calcutta High Court C
showed in the case of Hon'ble Chief Justice Mr. J.S. Verma that
"nil" recoveries were to be made from his pay and, in the case of
Hon'ble Chief Justice K.C. Agarwal, no amount was shown as
recoverable. from his pay. Annexed hereto and marked as An-
nexures RI and R2 are the Last Pay Certificates of the Hon'ble
Chief Justice Mr. Justice J.S. Verma and Hon'ble Mr. Justice K.C. D
Agarwal."
Copies of the Last Pay Certificates in support of the above deposition have
been placed on record. The last pay certificates was is~ued by the District
Treasury of the Govemment of Rajasthan in 1989. When the Treasury
Officer has certified that 'no' recoveries were due from Mr. Justice J.S. E
Verma, on his relinquishing the office of the Chief Justice of Rajasthan
High Court, it puts the matter completely beyond doubt that neither Mr.
Justice .T.S. Verma had, drawn any daily allowance "illegally" nor was he
guilty of any "criminal misappropriation of public funds" as alleged by the
learned Judge. The "last pay certificate" could not have been issued without F
proper verification by the District Treasury Officer and the declaration
therein to the effect that "no dues" were recoverable from the pat of Mr.
Justice J .S. Verma, establishes beyond any doubt that nothing had been
"illegally" drawn by Verma, J. and that no public funds were "misap-
propriated" by him and nothing was 'due' from him to the State Govern- G
ment.
We, therefore, unhesitatingly come to the firm conclusion that the
observations, comments, insinuations and allegations made by Shethna, J
in the matter of drawal of full daily allowance by the former Chief Jtistices
of Rajasthan High Court including the present Chief Justice of India, Mr. H
52 SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Justice J.S. Verma, who used to stay in bungalow No. N2 at Jaipur without
payment of rent, are not sustainable both in law and on facts. The allega-
tions have been made irresponsibly and recklessly. There is no question of
any "misappropriation" of "public funds" by any former Chief Justice of the
High Court of Rajasthan in the established facts of the case. Strong
expressions have been used against the Head of the Indian Judicial Family
B without any factual matrix and legal justification. We express our serious
disapproval of the manner in w4ich the learned single Judge has done so
as it does no credit to the office that he holds.
Whereas we concede that a Judge has the inherent power to act
C freely upon his own conviction on any matter coming before him, but it is
a principle of highest importance to the proper administration of justice
that the Judge must exercise his powers within the bounds of law and
should not use intemperate language or pass derogatory remarks against
other judicial functionaries, unless it is absolutely essential for the decision
of the case and is backed by factual accuracy and legal provisions.
D
It is educative to quote the views of Benjiman Cardozo, the great
Jurist in this behalf :
"The judge, even when he is free, is still not wholly free. He is
not to innovate at pleasure. He is not a knight-errant roaming at
E will in pursuit of his own ideal of beauty or of goodness. He is to
draw his inspiration from consecrated principles. He is not to yield
to spasmodic sentiment, to vague and unregulated benevolence.
He is to exercise discretion informed by tradition, methodized by
analogy, disciplined by system, and subordinated to "the primordial
F necessity of order in the social life."
It must be remembered that it is the duty of every member of the 'legal
fraternity to ensure that the image of the judiciary is not tarnished and its
respectability eroded. The manner in which proceedings were taken by the
learned Judge in relation to the writ petition disposed of by a Division
G Bench exposes a total lack of respect for judicial discipline. Judicial
authoritarianism is what the proceedings in the instant case smack of. It
cannot be permitted under any guise. Judges must be circumspect and self
disciplined in the discharge of their judicial functions. The virtue of
humility in the Judges and a constant awareness that investment of power
H in them is meant for use in public interest and to uphold the majesty of
STATE v. PRAKASHCHAND[DR.ANAND,J.] 53
rule of law, would to a large extent ensure self restraint in discharge of all A
judicial functions and preserve the independence of judiciary. It needs no
emphasis to say that all actions of a Judge must be judicious in character.
Erosion of credibility of the judiciary, in the public mind, for whatever
reasons, is greatest threat to the independence of the judiciary. Eternal
vigilance by the Judges to guard against any such latent internal danger is, B
therefore, necessary, lest we "suffer from self-inflicted mortal wounds". We
must remember that the constitution does not give unlimited powers to any
one including the Judge of all levels. The societal perception of Judges as
being detached and impartial referees is the greatest strength of the
judiciary and every member of the judiciary must ensure that this percep-
tion does not receive a set back consciously or unconsciously. Authenticity C
of the judicial process rests on public confidence and public confidence
rests on legitimacy of judicial process. Sources of legitimacy are in the
impersonal application by the Judge of recognised objective principles
which owe their existence to a system as distinguished from subjective
moods, predilections, emotions and prejudices. It is most unfortunate that D
the order under appeal founders on this touchstone and is wholly unsus-
tainable.
From the preceding discussion the following broad CONCLUSIONS
emerge. This, of course, is not to be treated as a summary of our judgment
and the conclusions should be read with the text of the judgment : E
(1) That the administrative control of the High Court vests in the
Chief Justice alone. On the judicial side, however, he is only the first
amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has F
the prerogative to constitute benches of the court and allocate cases to the
benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to
them by the Chief Justice or under his directions.
G
( 4) That till any determination made by the Chief Justice lasts, no
Judge who is to sit singly can sit in a Division Bench and no Division Bench
can be split up by the Judges constituting the bench themselves and one
I
or both the Judges constituting such bench· sit singly and take up any other
kind of judicial business not other~se assigned to them by or undel\ the
directions of the Chief Justice. ' H
54 SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A (5) That the Chief Justice can take congnizance of an application laid
before him under Rule 55 (supra) and refer a case to the larger bench for
its disposal and he can exercise this jurisdiction even in relation to a
part-heard case.
{6) That the puisne Judges cannot "pick and choose" any case pend-
B ing in the High Court and assign the same to himself or themselves for
disposal without appropriate orders of the Chief Justice.
(7) That no Judge or Judges can give directions to the Registry fm
listing any case before him or them which runs counter to the directions
C given by the Chief Justice.
(8) That Shethna, J. had no authority or jurisdiction to send .for the
record of the disposed of writ petition and make comments on the manner
of transfer of the writ petition to the Division Bench or on the merits of
that writ petition.
D {9) That all comments, observations and findings recorded by the
learned Judge in relation to the disposed of writ petition were not only
unjustified and unwarranted but also without jurisdiction and make the
Judge coram-non-judice.
E (10) That the "allegations" and "comments" made by the learned
Judge against the Chief Justice of the High Court, the Advocate of the
petitioner in the writ petition and the learned Judges constituting the
Division Bench which disposed of Writ Petition No. 2949 of 1996 were
uncalled for, baseless and without any legal sanction.
F (11) That the observations of the learned Judge against the former
Chief Justices of the High Court of Rajasthan to the effect that they had
"illegally" drawn full daily allowance while sitting at Jaipur to which they
were not entitled, is factually incorrect, procedurally untenable and legally
unsustainable.
G (12) That the "finding" recorded by the learned Judge against the
present Chief Justice of India Mr. Justice J.S. Verma, that till his elevation
to the Supreme Court, he had, as Chief Justice of the Rajasthan High
Court, "illegally" drawn a daily allowance of Rs. 250 while sitting at Jaipur
and had thereby committed "criminal misappropriation of public funds"
H lacks procedural propriety, factual accuracy and legal authenticity. The
STATE v. PRAKASH CHAND [DR. ANAND, J.) 55
finding is wholly incorrect and legally unsound and makes the motive of A
the author not above personal pique so wholly taking away dignity of the
judicial process.
(13) That the disparaging and derogatory comments made in most
intemperate language in the order under appeal do no credit to the high
office of a High Court Judge. B
( 14) That the direction of Shethna, J. to issue notice to the Chief
Justice of the High Court to show cause why contempt proceedings be not
initiated against him, for transferring a part-heard writ petition from his
Bench to the Division Bench for disposal, is not only subversive of judicial C
discipline and illegal but is also wholly misconceived and without jurisdic-
tion.
We, therefore, hold that all observations, comments, insinuations,
allegations and orders made by the learned Judge in connection with and
relating to the disposed of Writ Petition No. 2949/96 in the impugned D
order, are illegal, misconceived and without jurisdiction. The same are
quashed and are hereby directed to be expunged from the record.
The direction to issue show cause notice to the Chief Justice of the
High Court Respondent No. 2, being wholly unwarranted, unjustified and
legally unsustainable is hereby quashed and set aside. E
Nothing said hereinabove shall however be construed as any expres-
sion of opinion on the pending criminal revision petition filed by respon-
dent No. 1, which has been admitted to hearing and in which respondent
No. 1 has been granted bail. That criminal revision petition shall be ·decided
F
by the High Court on its own merits.
Before parting with this Judgment, we wish to say that we hope there
shall not be any other occasion for us to deal with such a case.
·The appeal therefore succeeds and is allowed.
G
v.s.s. Appeal allowed.
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