Holding

The Supreme Court expunged the High Court’s unmerited, derogatory remarks, holding that superior courts must exercise judicial restraint and may not pass harsh strictures against subordinate judges without justification.

Summary

V.K. Jain, a Special Judge of the Delhi Higher Judicial Service, challenged harsh and derogatory remarks made by the Delhi High Court in an order that criticised his conduct in granting bail and imposing conditions on a CBI case. The appellant argued that the remarks were unmerited, violated natural justice, and damaged his reputation, seeking their expungement. The Supreme Court held that superior courts must exercise restraint and avoid intemperate language when criticizing subordinate judges, and that any unmerited strictures are an abuse of process. Relying on the inherent power under Section 561A of the CrPC and a long line of precedents, the Court found the High Court’s observations unjustified and ordered them expunged. The appeal was allowed and the impugned order was set aside to the extent of the remarks.

Issues considered

The High Court’s remarks against a subordinate judicial officer constitute an abuse of process and violate principles of natural justice.
Whether the High Court had the authority to pass such derogatory observations without giving the officer a hearing.
Whether the Supreme Court can expunge the remarks under its inherent powers, specifically Section 561A of the CrPC.
The extent of judicial discipline and restraint required of superior courts when reviewing subordinate judgments.

Legislation cited

Code of Criminal Procedure, 1973s. 561A

Subjects

judicial disciplineexpungement of remarksjudicial decorumnatural justicesuperior courtsubordinate judiciarySection 561A CrPCabuse of processjudicial independence

Judgment

(2009] 11 S.C.R. 907

,, V.K. JAIN A
v.
HIGH COURT OF DELHI THROUGH R.G. AND ORS.
(Criminal Appeal No. 521 of 2004)
SEPTEMBER 23, 2008*
B
[DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ.)

~
Judiciary - Judicial officer - Strictures and remarks
against judicial officer - Expunging of remarks - Held:
' Criticism by superior courts must be in a language of utmost c
restraint - Judicial decorum to be maintained at all times and
even where criticism is justified - Duty and obligation of
superior courts to ensure judicial discipline - Principles of law
laid down in the light of decisions made over several decades
- On facts, remarks expunged - Judicial restraint - Judicial D
~.
discipline/decorum - Administrative Law - Principles of
Natural Justice.

Appellant was a judicial officer. Certain observations
were made by High Court in the impugned order,
E
whereby he was projected as an incompetent judicial
officer who had no knowledge of basic laws and
jurisprudence and who had no regard for the fundamental
rights of the citizens. According to the impugned order,
,,. . the appellant was administering justice in the medieval
way and in an arbitrary manner. F

In appeal to this Court, appellant contended that
High Court was not justified in passing totally unmerited
and undeserved strictures and remarks against him and
prayed for expunging the remarks so made. G
~

Allowing the appeal, the Court
-'

Received for reporting, on 1.9.2009.

907 H
908 SUPREME COURT REFORTS [2009] 11 S.C.R.

A HELD: 1. It is the duty and obligation of the higher
courts to modify or set aside orders which are contrary
to law or the facts of the case. This is one of the most
important functions of the superior courts. Indian legal
system acknowledges the fallibility of the judges and
B provides for appeals and r11visions. Judges of the
superior courts while dischargina their duty ought to be
extremely careful before passing imputations, strictures
and remarks against subordinate judicial officers. There
'{
was no justification in passing any imputations, remarks
c or strictures against the appellant. Even if it is assumed ,.
that the order passed by the appellant was wrong or
erroneous, even then the High Court ought to have either
modified or set aside the order, ~ut the High Cou·rt was
not justified in passing totally unmerited, derogatory,
D harsh and castigating remarks against the appellant.
[Paras 41 and 49] [944-A-C; 948-C-E]
.~

Kunhayammed and Ors. v. State of Kera/a and Anr.
(2000) 6 SCC 359; Commissioner of Income Tax, Bombay
v. Amrit Lal Bhogi Lal and Co. AIR (1958) SC 868; Gojt·r
E Brothers (Pvt.) Ltd. v. Ratan Lal Singh (1974) 2 SCC 453;
Kashi Nath Roy v. State of Bihar (1996) 4 SCC 539; Braj
Kishore Thakur v. Union of India and Ors. (1997) 4 SCC 65;
-
Panchanan Banerji v. Upendra Nath Bhattacharji (1926) I.LR.
49 All 254; H. Daly AIR (1928) Lah 740; State v. Mikanth
F Shripad AIR (1954) Born. 65; L. Banwanri Lal v. Kundan '
Cloth Mills Ltd. AIR (1937) Lahore 527; Dr. Raghubir Saran
v. State of Bihar and Anr. AIR (1964) 1; Anjani K. Venna v.
State of Bihar and Anr. (2004) 11 SCC 188; A.M. Mathur v.
Pramod Kumar Gupta and Ors. AIR (1990) SC 1737;
G Niranjan Patnaik v. Sashibhushan Kar and Anr. AIR (1986)
SC 819; Samya Sett v. Shambhu Sarkar and Anr. (2005) 6
SCC 767; /shwari Prasad Misra v. Mohammad Isa (1963) 3
SCR 722; State of M.P. And Ors. v. Nandlal Jaiswal and Ors.
(1986) 4 SCC 566; K.P. Tiwari v. State of M.P. (1994) Supp.
H 1 SCC 540; In re: 'K' A Judicial Officer (2001) 3 SCC 54;
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 909
AND ORS.
Ramesh Chander Singh v. High Court of Allahabad and Anr. A
(2007) 4 sec 247, referred to. •

2.1. The following principles of law are laid down in
the light of decisions spreading over a century. Erosion
of credibility of judiciary in the public mind, for whatever B
reason, is the greatest threat to the independence of
judiciary. Judicial discipline and restraint are imperative
for the orderly administration of justice. Judicial decorum
)
makes it imperative that the judgments and orders must
be confined to the facts and the legal position involved
in the cases and the courts should not deviate from
c
propriety, moderation and sobriety. [Para 50] [948-E-H;
949-A]

2.2. Majesty of Court is not displayed solely in
,,
cracking the whip on mistakes, inadvertent errors of D
"-- lapses, but by persuasive reasoning so that the similar
errors and mistakes are not repeated by the judicial
officers. Majesty of Court would be enhanced by
practicing discipline and self-restraint in discharging of
all judicial functions. The role of superior courts is like a E
friend, philosopher and guide of the judiciary subordinate
to it. The judicial officers have to be treated ·111ith parental
care and affection. The approach of the superior courts
.. ought to be correctional and not to be intended to harm
, or ruining the judicial career of the officers. The superior F
courts should always bear in mind that the judicial officer
is not before it and should ordinarily refrain from passing
strictures, derogatory remarks and scathing criticism. The
passing of such order without affording a hearing to the
judicial officer is clearly violative of the principles of G
natural justice. [Para 50] [949-A-F]
• ~
2.3. The superior courts should always keep in mind
that disparaging and derogatory remarks against the
judicial officer would cause incalculable harm of a
permanent character having the potentiality of spoiling H
910 SUPREME COURT REPORTS [2009] 11 s.c.R.
,_.
A the judicial career of the concerned officer. Even if those
remarks are expunged, it would not completely restore
the harmed judge from the loss of dignity and honour
suffered by him. [Para 50] [949-F-H]

2.4. The superior courts should convey its messages
8
to the concerned judicial officers through a process of
reasoning highlighting the correct provisions of law,
precedents and proper analysis of evidence and material
on record, but rarely by passing harsh and derogatory
remarks. They must always keep in mind that it is a
c herculean task for the judicial officer to get the
derogatory remarks expunged by the superior court. He
is compelled to take assistance from lawyers, who may be
appearing before him. It is embarrassing, humiliating, time
consuming and an expensive exercise. [Para 50] [950-A-
D C] ....
2.5. The superior courts must always keep in mind
that much cherished judicial independence must not be
presented only from outside but from within, by those
E who form the integral part of the judicial system. Damage
from within has much larger and greater potential for
harm than danger from outside. [Para 50] [950-C-D]
.;
2.6. The superior courts should not use strong
derogatory, disparaging and carping language while '
F criticizing the judicial officers. They must always keep in
mind that, like all other human beings, the judicial officers
are also not infallible. Any remarks passed against them
may result in incalculable harm resulting in grave
injustice. The superior courts judges should not be, like
G a loose cannon, ready to inflict indiscriminate damages
whenever they function in judicial capacity. They should ~
...
keep in mind that infliction of uncalled for, unmerited and
undeserved remarks clearly amount to abuse of the
process of court. It must be remembered that the
H subordinate judicial officers at times work under charged
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 911
AND ORS.

atmosphere and are constantly under psychological A
pressure with all the contestants and their lawyers almost
breathing down their necks and more correctly upto their
nostrils. [Para 50) [950-E-H; 951-A-C)

2.7. To err is human and no one is infallible. A j~dge
8
who has not committed an error is yet to be born. Judicial
decorum has to be maintained at all times and even
where criticism is justified. It must be in a language of
utmost restraint always keeping in view that the person
marking the comment is also fallible. Judges of the
superior courts' have a duty and obligation to ensure C
judicial discipline and respect for judiciary from all
concerned. The respect for the judiciary is not enhanced
when judges at the lower level are criticized intemperately
and castigated publicly. It is the duty and obligation of the
judges of the superior courts to ensure that D
independence of judiciary is not compromised and every
judicial officer should feel that he can freely and fearlessly
give expression to his own opinion. This is absolutely
imperative in maintaining the independence of judiciary.
[Para 50) [951-C-H] E

3. On consideration of the totality of the facts and
circumstances, the impugned order passed by Single
, Judge cannot stand scrutiny of law as far as passing the
,.. remarks and strictures against the appellant were F
concerned and consequently the impugned order is set
aside to the extent of expunging the remarks made
against the appellant in the said order. [Para 51) [952-8-
C)
'
Case Law Reference: G

(2000) s sec 359 referred to Para 8
AIR (1958) SC 868 referred to Para 8

H
912 SUPREME COURT REPORTS [2009] 11 S.C.R.

'~
A (1974) 2 sec 453 referred to Para 8

(1996) 4 sec 539 referred to Para 22

(1997) 4 sec 65 referred to Para 24

(1926) I.LR. 49 All 254 referred to Para 25
B
AIR (1928) Lah 740 referred to Para 26

AIR (1954) Born. 65 referred to Para 27

AIR (1937) Lahore 527 referred to Para 28
c AIR (1964) 1 referred to Para 29

(2004) 11 sec 188 referred to Para 30

AIR (1990) SC 1737 referred to Para 31
D AIR (1986) SC 819 referred to Para 34
..•
(2005) 6 sec 767 referred to Para 35

(1963) 3 SCR 722 referred to Para 38

E (1986) 4 sec 566 referred to Para 39

(1994) Supp. 1 sec 540 referred to Para 40
(2001) 3 sec 54 referred to Para 42

(2001) 4 sec 247 referred to Para 44 ...
F
CRIMINAL AP PELLATE JURISDICTION : Criminal Appeal
No. 521 of 2004.

From the Judgment & Order dated 14.7.2003 of the High
Court of Delhi in Criminal Misc. (M) No. 522 of 2003.
G
T.R. Andhyarujina, Prashant Bhushan, Rohit K. Singh and
Somesh Rattan for the Appellant. •'
B.B. Singh, T.A. Khan, B.K. Prasad, P. Parmeswaran, A
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 913
AND ORS.
,_/
Mariarputham and Aruna Mathur, (for Arputham, Aruna & Co.) A
for the Respondents.

The Judgment of the Court was delivered by

DALVEER BHANDARI, J. 1. This appeal is directed
against the order dated 14th July, 2003 passed by the High B
Court of Delhi in Criminal Misc. (M) No.522 of 2003.

·' 2. The appellant, a judicial officer of the Delhi Higher
#
Judicial Service, is aggrieved by the remarks and strictures
which have been passed by the High Court of Delhi against c
him. According to the appellant, the remarks were totally
undeserved, unjustified, unmerited and unnecessary for
deciding the issue involved in the case. In this appeal, he has
prayed for expunging and deleting the remarks passed by the
High Court. D
•
;
3. Brief facts which are necessary to dispose of this appeal
are recapitulated as under:

The appellant, atthe relevant point of time, was posted as
a Special Judge dealing with the case of Central Bureau of E
Investigation (for short, 'CBI') at New Delhi. The appellant all
through has been an outstanding officer of the Delhi Higher
Judicial Service and consistently getting outstanding (A+) ACRs
.. in his entire service career.
" F
4. Respondent No.3 Chander Prakash, a non-resident
Indian (NRI) along with others were ctiarge-sheeted by the CBI
under section 120-B read with sections 420/467/468/471 of the
Indian Penal Code (for short, 'IPC') and section 13(2) read with
section 13(1)(d) of the Prevention of Corruption Act, 1988.
G
Respondent No.3 Chander Prakash was granted bail on
~·

~
1.3.2002 subject to the condition that j1e will not leave the country
without permission of the court. On 4.3.2002, respondent no.3
filed an application seeking permission to go to Hong Kong.
The said application was opposed by the CBI in writing on the
ground that respondent no. 3 might flee from justice and he may H
914 SUPREME COURT REPORTS [2009] 11 S.C.R.

A not be available for facing the trial. During the pendency of the
said application, to assure the court and the CBI that
respondent no.3 Chander Prakash would be available for the
trial, respond~nt no.3 expressed willingness to deposit the
passports of his wife and mother, who are respondent nos.4
a and 5 in this appeal, before the CBI Court. Respondent no.3
Chander Prakash presumably with the consent and
concurrence of respondent nos.4 & 5 volunteered to deposit
the passports of respondent no.4 and 5. Pursuant to the offer
made by respondent no.3, vide order dated 4.3.2002,
C respondent no.3 was granted permission to go to Hong Kong
after depositing the passports of respondent nos.4 & 5. They
were not aggrieved by the order at any point of time because
the order was in the nature of a consent order rather than strict
directions of the court. The order passed by the appellant dated
D 4.3.2002 reads thus:

"ORDER ..
Case taken up today on the application of Chander
Parkash for permission to go Hong Kong and for return of
E his passport. He states that he is an NRI and is working
in Hong Kong. Keeping in view the fact that he had
appeared in response to the summons issued by this court
and he has expressed his willingness' to deposit the
passports of his wife and his mother in the court in order
F to ensure that he shall not abscond during trial, he is
permitted to go to Hong Kong subject to the condition that
he shall remain present on the next date of hearing and
shall 'file an FDR of Rs.one lac today itself. On filing of FDR
and· passports of the mother and wife of the accused
Chander Parkash, his passport be released to him.
G
Accused Chander Parkash has already given his office
address of the Hong Kong in the application. He is also ..
directed to give his residential address in Hong Kong to
the court He shall deposit the passport in court on return
from Hong Kong.
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 915
AND ORS. [DALVEER BHANDARI, J.] .

Special Court I New Delhi" A

5. An application dated 10.8.2002 was filed after more
than five months of the order dated 4.3.2002 in which
respondent nos. 4 and 5 prayed that their passports be returned
on the ground that respondent no.5 wanted to get her treatment
8
done by respondent no.3 who at that time was in Hong Kong.
The CBI opposed the application in writing. Vide orders dated
14.8.2002, the application was rejected by the appellant. It was
noted in the order that respondent nos.4 & 5 had willingly
deposited their passports and, therefore, it would not be
appropriate to release their passports till respondent no.3 C
(accused Chandra Prakash) returns from abroad and seeks
fresh permission to go abroad without depositing the passports
of respondent nos. 4 and 5.

6. The order dated 4.3.2002 passed by the appellant was D
challenged by respondent nos.4 & 5 by filing Criminal Misc.
(Main) No.4200/02 in Criminal Misc. (M) No.1043/02 before the
High Court of Delhi. The High Court vide order dated 9.10.2002
directed release of passport only of respondent no.4 for a
period of two months as respondent no.3 was admitted in the E
hospital. She was directed to return and surrender her passport
thereafter. The said order is reproduced hereunder:

"IN THE HIGH COURT OF DELHI AT NEW DELHI

CRIM MM 1043/2002 F
Chander Prakash .. ... Petitioners
Through Mr. Jatan Singh
Versus
C.B.I. ..... Respondent
Through Mr. A. K. Dutt G
ORDER

09.10.2002

CRL M. 4200/2002 H
916 SUPREME COURT REPORTS [2009] 11 S.C.R.

A The applicants are the mother and wife of the
accused/petitioner. The petitioner has through this petition '•
challenged the impugned order dated 4th March, 2002
passed by the learned ASJ permitting the accused to go
to Hongkong subject to the condition that he shall deposit
B passports of his wife and mother and shall deposit an FDR
of Rs. One lac and after doing so his passport shall be
released to him. After complying with this condition the
petitioner's passport was released and he is presently
stationed at Hongkong. It is stated that there he is admitted
c in the Hospital and since there is no family member to look
after him the mother and the wife be permitted to go there
and, therefore, their passports be released. It appears that
the condition of depositing the passports of the mother and
the wife of the accused was imposed in order to ensure
and procure the presence of the accused on the dates of
D
hearing. However, the record shows that the accused has
been regularly attending the hearing. However Counsel for
the petitioner states that he shall be satisfied if the passport ...
of the wife of the petitioner is released facilitating her to
go to Hongkong to care for her husband. Since the
E applicant wife is not an accused nor a surety, the request
of the counsel for the petitioner appears to be justified. Let
the passport of the wife of the accused Anjana Batheja be
released for a period of two months whereafter she will
return and surrender the passport so as to facilitate the
F decision of the main petition. •
~

Dasti.
Sd/-
Judge, High Court
G
October 09, 2002."

7. It may be pertinent to mention that Criminal Misc. (M)
•
.
No.1043/02 was finally disposed of by the High Court vide
order dated 20.11.2002 without setting aside or adversely
H commenting on the orders dated 4.3.2002 and 14.8.2002
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 917
AND ORS. [DALVEER BHANDARI, J.]

passed by the appellant. The High Court did not adversely A
.... comment on the order because the High Court did not find
anything erroneous, unreasonable or obnoxious in the said
order. It is astonishing that when the same order of the appell~nt
dated 4.3.2002 again came up for consideration on 14.7.2003,
the High Court adversely commented on the order of the B
appellant and passed the impugned order dated 14.7.2003
which is reproduced as under:

-" "IN THE HIGH COURT OF DELHI
. c
Crl. M (M) No. 522/2003

Date of Decision: July 14, 2003
Smt. Anjana Batheja & Anr. .. .. Petitioner
Through Mr. Jatan Singh, Adv.
D
Versus
i Central Bureau of Investigation -... Respondent
~
Through Mr. H.J.S. Ahluwalia, Adv.
1. Whether the reporters of local papers may be
allowed to see the judgment? E

2. To be referred to the report or not?

3. Whether the judgment should be referred in the
.. Digest?
F
_;
ORAL JUDGMENT

1. Mindboggling situation has arisen in these proceedings.
One Chander Prakash is facing trial before Sh. V. K. Jain,
Special Judge CBI Court Delhi for the offences punishable G
under Sections 420/467/468/471 read with Section 120-
B of the Indian Penal Code and Sections 13(2), 13(1)(d)
-<
l
of Prevention of Corruption Act. He is on bail. Since he
~
was on bail, he made an application for release of his
passport for going to Hong Kong where he has a business. H

'
918 SUPREME COURT REPORTS [2009] 11 S.C.R.

A In order to ensure his presence on the dates of hearing,
Learned Special Judge has passed an order which has
.
~

overtones of keeping his mother and wife as hostages as
he has directed the petitioner not only to deposit their
passports but also deposit Rs.1 lac by way of F.D.R. if he
B wants his passport to be released.

2. Forced by circumstances, the petitioner after depositing
their passports went to Hong Kong where he fell seriously
ill. There was nobody to look after him at Hong Kong. ~

Consequently, his mother and wife moved an application
c for releasing their passports before the learned Special
Judge but their applications were dismissed vide order
dated 4.3.2002 though an offer to keep the sister of the
accused as another hostage was made as they offered to
deposit the passport of the sister of the accused and also
D to furnish the bank guarantee.

3. Through this petition they have challenged not only the ..
legality and rationality of the impugned order but its
propriety and harshness. It is pertinent to mention here that
E since the release of accused, he has been regularly
attending court proceedings even during brief sojourns to
Hong Kong. More so his appearance was also exempted
till the framing of charges.

F
4. Not only on the face of it but even on the premise of ..
layman's understanding condition of releasing the passport
'
of the accused subject to deposit of passports of his
mother and wife and deposit of Rs. One lac by way of
F.D.R. appears to be highly irrational, illegal, harsh and
difficult to ram down the throat as it is unknown to the
G criminal jurisprudence.

5. Every criminal court is a creature of Criminal Procedure ).

Code and as such is neither above it nor can rise above
it. The court is empowered to impose any kind of condition
H upon the accused to ensure his presence but to curtail or
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 919
AND ORS. [DALVEER BHANDARI, J.)
"""
~ scuttle the liberty of other members of his family who are A
in no way connected with the crime is to take away
.. precious fundamental right of free moveme11t .Jf 0..1
individual granted by the Constitution. This is nothing but
a medieval way of administering justice when family
members used to be kept as hostages in lieu of either 8
release of their detained kith and kin or procure the
surrender of the wanted man.
~
6. Once passport of the accused was released on the
> condition of filing FDR of Rs. 1 lac though the legality of
such a condition is in serious doubt imposing of any other
c
condition or order for depositing the passports of his
Jllother and wife was beyond the judicial domain of the
court.

7. if the learned Special Judge was of the opinion that the D
release of passport to the accused was not safe as he
..
_.· may flee from justice, such a request could have been
rejected and if allowed any other reasonable kind of
condition could have been imposed upon him and him
alone. E

8. The impugned order is wholly illegal, irrational and hits
· at the foundation of fundamental right of a person and
jurisprudential structure and is therefore difficult to sustain
.. and has to go. Merely because the accused had shown
F
> his willingness to ensure his appearance on the next date
of hearing by way of depositing the passports of his wife
and mother does not mean that the Court should also pass
the order directing him to do an act for which the accused
had neither any legal authority nor any legal right. Every
individual is independent entity. How can on the statement G
of an accused passports of his family members can be
"'1 ordered to be deposited. To imagine this is beyond
comprehension.

9. Without tarrying further on this aspect and concept of H
920 SUPREME COURT REPORTS [2009] 11 S.C.R.

A liberty and freedom of movement of the citizens, I feel
persuaded to set aside the impugned order which cannot
'.I.
-
stand even prima facie judicial scrutiny.
•
10. In the result the petition is allowed. The impugned order
is hereby set aside. Passport of the petitioners, if
B
deposited, shall be released to them forthwith.

11. For guidance, copy of this order be sent to all the
judicial officers. ~

c July 14, 2003
Sd/-
Judge"
8. The appetlant submitted that the order dated 4.3.2002
passed by him stood merged in the order of the Hon'ble High
D Court dated 9.10.2002. It is settled proposition of law, reiterated
in Kunhayammed & Others vs. State of Kera/a and another •
(2000) 6 SCC 359, Commissioner of Income Tax, Bombay '
v. Amrit Lal Bhogi Lal & Co., AIR 1958 SC 868 and Gojer
Brothers (Pvt.) Ltd. v. Ratan Lal Singh (1974) 2 SCC 453 that
E once the order of a lower court has been challenged before a
superior forum and has been reviewed, modified or affirmed, .
it is the order of the superior forum, which alone subsists and
is operative. Therefore, it was not permissible for the petitioner
to review or modify the order dated 4.3.2002. ,.
F
9. The appellant is aggrieved by the following observations '
made by the High Court in its impugned order dated 14.7.2003:

"1. Mindboggling situation has arisen in these
proceedings ....... In order to ensure his presence on the
G date of hearing, learned Special Judge has passed an
order which has overtones of keeping his mother and wife
as hostages ..... •
4. Not only on the face of it but even on the premise of
H layman's understanding condition of releasing the passport
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 921
,. AND ORS. [DALVEER BHANDARI, J.]
~) of accused subject to deposit of passports of his mother A
and wife and deposit of Rs.one lac by way of FDR appears
to be highly irrational, illegal, harsh and difficult to ram down
•· the throat as it is unknown to the criminal jurisprudence.

5..... This is nothing but a medieval way of administering B
justice when family members used to be kept as hostages
in lieu of either release of their detained kith and kin or
procure the surrender of the wanted man.
~

.~ 8. The impugned order is wholly illegal, irrational and hits
at the foundation of fundamental right of a person and c
jurisprudential structure."

10. The order dated 14.07.2003 was circulated to all the
judicial officers and widely reported in the newspapers.
The appellant was projected as an incompetent judicial D
officer who had no knowledge of even basic laws and
..
... jurisprudence and who had no regards of the fundamental
rights of the citizens. According to the impugned order, the
appellant was administering justice in the medieval way
and in an arbitrary manner. E
11. Mr. T.R. Andhyarujina, learned senior advocate and Mr.
Prashant Bhushan, learned advocate appearing on behalf of
the appellant submitted that the appellant has seriously suffered
on account of the Hon'ble Judge of High Court of Delhi who
I passed the impugned observations and remarks, taking on F
record an erroneous statement of facts regarding the working
of the appellant as a Special Judge while deciding the Criminal
Misc. (M) No.3686/02, 3687/02 and 3688/02 titled P. Dass
Gupta v. State (through CBI) vide order dated 13.11.2002. In
para 4 of the order dated 13.11.2002, the learned Judge of the G
High Court noted:
,,,
l "Learned senior counsel for the petitioner states at the Bar
that this particular Special Judge has not granted bail to
any of such accused who has appeared at the time of filing H
922 SUPREME COURT REPORTS [2009] 11 S.C.R.
...
A of challan by CBI in spite of the fact that CBI did not take ~~

such accused into custody."

12. Learned counsel appearing for the appellant submitted •
that though grant or refusal of bail is of no consequence, but
the correct factual positior: was that till the date of the order
B
dated 13.11.2002 passed by the High Court, 30 accused
charge-sheeted by the CBI were granted bail whereas 18 such
accused were refused bail by the appellant. Thereafter,
erroneous statement of facts was recorded by the High Court >

c without any verification and without calling for any information,
record or comments from the appellant. The appellant is
seriously aggrieved by the unmerited, unjustified and
unwarranted remarks passed by the learned Judge of the High
Court. Learned counsel submitted that the appellant submitted
that he passed the order dated 04.3.2002 because respondent
D no.3 expressed his willingness to deposit the passports of his
wife and mother, respondent nos.4 & 5 in the court presumably
with their consent and concurrence. The order was almost in ...
the form of a consent order.

E 13. Mr. Andhyarujina, learned counsel for the appellant also
submitted that the High Court has been passing similar orders
for a long time and as a Subordinate Judicial Officer he was
duty bound to follow the same.

14. The learned counsel for the appellant, in order to >
F strengthen his argument, gave reference to the orders passed
by a Division Bench of the High Court in CW No.118 and CM
No.225of1983 on 20th January, 1983. The relevant part of the
said order is reproduced as under:

G "ORDER

20.1.83 Present:Mr. Soli J. Sorabjee, Senior
)..
Advocate.with Mr. Harish Salve for the
petitioner.
H Mr. D. P. Wadhwa for the respondents.
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 923
AND ORS. [DALVEER BHANDARI, J.]
p
C.W. 118 and C.M. 225 of 1983 A

... 1. Mr. Wadhwa prays for time to file answer tu show cause
and reply to the application. The same may be filed within
four weeks with copy to counsel for the petitioner.
Rejoinder, if any, within two seeks thereafter. Case for
8
March 11, 1983.

, 2. Pending final determination of the matter, we order that
~ without prejudice to the contentions raised by the petitioner
or the contentions that may be raised by the respondents,
petitioner be permitted to visit the United States of America c
so as to return to India on or before March 2, 1983 subject
to his fulfilling the conditions that we se hereafter.
lllllllit./

3. Petitioner shall before leaving India, in additional to the
bonds already given in the sum of Rs.1,00,000 with two D
,,.. sureties, give additional security for Rs.2,00,000 to the
satisfaction of the Joint Registrar of this Court. The ~aid
surety bond will be in favour of the Directorate of
Enforcement. Petitioner will give an undertaking to this
Court by an affidavit that he would appear before the
E
Enforcement Officer, New Delhi to 10 1.m. on March 7,
1983.

..._ 4. The petitioner shall also before leaving lndia'file photo
i
copy of his current passport duly certified by him as true
copy with the Enforcement Directorate. Photo copies may F
be prepared by the Directorate at petitioner's cost.

5. Petitioner on March 7, 1983 produce in the Enforcement
Directorate transcript of his bank account or accounts in
United States of America from the period January 1, 1978 G
till three days before his departure from America.
A
l
6. Petitioner will cause the current passport of his wife and
his child to be deposited with the Registrar of this Court
along with an undertaking on affidavit by his wife to this
court that in case the petitioner does not return to India on H
924 SUPREME COURT REPORTS [2009] 11 S.C.R.

A or about March 2, 1983 and does not appear before the
Enforcement Officer on March 7, 1983, the petitioner's wife
will surrender herself to the Enforcement Officer for being ...
detained in civil prison till such time as the petitioner
comes and surrenders himself.
B
7. On return of the petitioner to Delhi and on his appearing
before the Enforcement Officer, the petitioner will deposit
his passport with the Enforcement Officer. The additional
sureties of Rs.2 lakhs each will then stand discharged. The
passport of the wife of the petitioner shall forthwith be
c returned on such appearance and the undertaking of the
wife of the petitioner would then stand discharged.

8. We are told that petitioner's child does not have a
passport nor any endorsement with regard to his child is
made either on the petitioner's passport or on the passport
-
D
of his wife. On this aspect petitioner will file an affidavit in
this court along with other papers which he has directed
to file.

E
9. The matter may be placed before the Joint Registrar (J)
on January 21, 1983 for complying with this order. True
copies of this order may be given both to the petitioner and
to Mr. Wadhwa.
-
Sd/-
\
F CHIEF JUSTICE
Sd/-
B.N. KIRPAL, J.
January 20, 1983."

G 15. The High Court of Delhi in Criminal M. (M) NO. 50/98
2.2.1998 passed the following order in similar terms:

"ORDER
Present: Ms Geeta Luthra with
Mr. P. K. Dubey for petitioner.
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 925
AND ORS. [DALVEER BHANDARI, J.]
~>
Ms. Mukta Gupta for the State. A
Crl. M (M) NO. 50/98
•
This petition is for permission to go abroad for
business purposes. The latest itinerary filed by the
petitioner along with the application dated 13.1.1998, has B
become infructuous as the departure date from Delhi was
20th January, 1998. Learned counsel for the petitioner says
A
that in case the permission is granted, a revised itinerary
• will be supplied to the State. However, the period of
remaining abroad would not be more than two months. c
Heard the learned counsel for the parties.

- Learned counsel· for the respondent says that
investigation is almost complete and the challan would be
filed and, in these circumstances, joining of the D
~
investigation may not be necessary by the petitioner but_
' in case permission to go abroad is granted to the
.. petitioner, it has to be ensured that he comes back and
faces the trial. For that it has been suggested that a bank
guarantee of rupees one lac may be given and the places E
of stay abroad may be given.

In view of the facts and circumstances of the case,
~ the petitioner is allowed to go abroad on the following
J conditions:
F
1. He shall furnish a bank guarantee of rupees fifty
thousand;

2. One surety of rupees twenty five thousand;
G
3. Personal bond of rupees twenty five thousand;
><,
4. The petitioner shall give the revised itinerary which
will not be for more than two months;
I

5. Before starting the journey, the petitioner shall give H
926 SUPREME COURT REPORTS [2009] 11 S.C.R.

A the copy of itinerary to 1.0. SI Dinesh Kumar and file a copy '•
of the same in court;
~

6. in case the petitioner can give the addresses
where the petitioner would be staying abroad, that shall
also be given to 10 in advance;
B
7. Petitioner shall deposit passport of his wife Ms .
.Perwaiz Johan and passport of his eldest daughter Jauvier ~

Nayyar with the concerned court of Magistrate.
'
c The Bank guarantee, the personal bond and the
surety will be to the satisfaction of the conerned court of
Magistrate. The passport of the petitioner will be released '
to him for going abroad on terms ordered above and the
same shall be deposited after the journey abroad with the
concerned Magistrate.
-
D
Dasti to counsel for both parties. "'•
The main petition and all pending Crl. Ms. are .
disposed of.
E
February 02, 1998
Sd/-
A.K. Srivastava,
Judge" )

F 16. The appellant being a subordinate judge of the Delhi
Higher Judicial Service was duty bound to follow these ordl?rs
and while passing the order dated 4.3.2002 he followed the
pattern of the orders delivered by the Delhi High Court.

G 17. Learned counsel further submitted that the High Court
even after the impugned order dated 14.7.2003 passed the
)o.
similar order dated 31.3.2006, whic~ reads as under:

"IN THE HIGH COURT OF DELHI AT NEW DELHI

H 31.03.2006
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 927
AND ORS. [DALVEER BHANDARI, J.]

-
-~ ~j.! Present: Mr. R~jiv Nayar, Sr.Advocate with Mr. R. N.
Karanjawala,
A

Mr. Viraj Datar, Sandeep Mittal and Mr. Sarvesh Singh for
the appellant with appellant in person.

Ms. Mukta Gupta with Mr. Rajat Katya! for the State. B

LPA No. 530/2006 and CM No. 4816/2006
~

• This is an appeal preferred by the appellant Bina K.
Ramani from the order dated 24.03.2006 and 29.03.2006
of the learned Single Judge, whereby he declined to pass
c
an immediate order enabling the petitioner to. travel
abroad. Learned Single Judge held that in the
--<
circumstances, there was need to investigate the matter
and permission could not be granted without affording a
reasonable opportunity of hearing to the respondent. The D
;_
• matter was posted for 5th April, 2006. Appellant moved
another application, which was listed on 29.03.2006. The
said application was also ordered to be posted to
5.4.2006 on account of non-availability of the Senior
Counsel. E

Appellant has assailed both these orders in appeal.
Appellant's daughter Malini Ramani and Mr. George
~ Mailhot were the petitioners in the writ petition, wherein
.. lookout notices issued were challenged. Interim F
application was moved on the plea that wedding of the
appellant's niece, i.e., her real brother's daughter, was
scheduled for 31.03.2006. Permission was sought to travel
abroad. The appellant wishes to leave on the intervening
night of 24th and 25th March, 2006 to attend the G
1
celebrations commencing from 29th March, 2006. The
....'\ appellant, Mr. George Mailhot and her daughter,
petitioners in the writ petition, wanted to join in earlier for
the marriage preparations. It is submitted that posting the
application to 5.4.2006, when all the functions would be
H
928 SUPREME COURT REPORTS [2009] 11 S.C.R.

\.
....
.,
A over, rendered the appellant's prayer and application
infructuous. Learned Senior Counsel for the appellant
submits that the appellant, till date, is not accused of any
offence. Rather, she was a witness whose evidence had
been material for the State. Further, the appellant had fully
B cooperated with the State in prosecution of the Jessica Lal
murder case. Learned counsel also submits that no
statutory order under the Foreigners Act has been passed,
•
prohibiting the travel or departure of the appellant. )<

Ms. Mukta Gupta, learned counsel for the State, opposes
c the prayer for permission to travel abroad. She submits that
the appellant is a British

Passport holder and a foreign national. She submits

D that recently, FIR No.120/2006 dated 6th March, 2006
under Sections 120-8/201 /218/34 I PC has been ,.I

registered at P.S. Mehrauli, with regard to destruction of
•
evidence against unnamed persons. She submits that the
appellant and her daughter Malini Ramani and Mr. George
Mailhot are suspects in the said FIR as she claims that the
E
scene of occurrence was tampered with and the blood
stains had been washed away. On the question of
permission being granted to go abroad, she submits that
the correspondence attached by the appellant does not loo
inspire confidence or conclusively show the relationship of •
F the appellant. The functions scheduled for 29th, 3oth and
31st March, 2006, i.e., the main functions for the wedding,

are/would be over and there would be no fruitful purpose
in considering grant of permission at this stage.
G
She further states that when the appellant, her
daughter Malini Ramani and Mr.George Mailhot were >
called for investigation, they did not cooperate and their
participation was an eye wash and ineffective answers
were given. It is submitted before us that the appellant is
H
IV
/.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 929
AND ORS. [DALVEER BHANDARI, J.]

required to join in for investigations on 4th April, 2006, to A
give the remaining replies to the notices.

Learned counsel for the appellant submits that the
appellant along with Mr.George Mailhot and her daughter
Malini Ramani have been staying in India for over two
B
decades and have properties and roots in India. From
1999 onwards, the appellant has travelled numerous times.
To re-assure the court regarding the presence and
availability of the appellant, Mr. George Mailhot and her
daughter Malini would deposit their passport with the C
Investigating Officer Mr. M.K. Sharma, ACP. Besides, the
appellant undertakes to the court that she will return by 3rd/
4th April , 2006 and will be available for joining
investigations on 4th April, 2006 and would duly furnish the
replies of the notices without seeking further extension in
. this regard. Learned counsel for the appellant submits that D
the appellant would deposit today itself, a demand draft
in the sum of Rs.5 lacs favouring the Registrar General of
the High Court of Delhi as security for her due compliance
with the aforesaid undertakings.
E
We prima facie find that the appellant has been
staying in India for a number of years. She has travelled
abroad a number of times as is revealed from her
Passport. While the appellant has missed out the main
wedding and some functions of her niece, learned Senior F
Counsel submits that she would be able to attend the
function of 'Reception Dinner' on Saturday at 8.00 p.m.

Considering the above circumstances, we permit the
appellant to proceed to Phuket, Thailand on con:ipliance
with the above terms and conditions as set out. She would G
return on the intervening night of 3rd and 4th April, 2006.
The State would also ensure that ho obstruction is caused,
on account of the lookout notices, in her travelling to
· Phuket.
H
930 SUPREME COURT REPORTS [2009] 11 S.C.R.'

A We make it clear that any observation made in this
order shall not be taken as expression of any opinion on
the subject matter of the validity of the lookout notices,
which is pending in the writ petition before the learned
Single Judge, .who would decide the same uninfluenced
B by any observation made herein. The appeal and
application stand disposed in above terms.

Copy of this order be given dasti to counsel for both
the parties under the signatures of Court Master.
c Manmohan Sarin, J
Manju Goel, J
March 31, 2006."

18. Learned counsel for the appellant submitted that the
0 order dated 04.3.2002 earlier came before the same Hon'ble
Judge and he did not find the same objectionable or
unreasonable and passed the ord€r dated 9.10.2002.

19. The order dated 4.3.2002 again came for consideration
by the same learned Judge of the High Court, this time, for
E totally unjustifiable reason, the court passed unmerited remarks
and the observations against the appellant. The impugned
order passed by the High Court is against all the norms and
settled legal position. He also submitted that as a Subordinate
Judge, the appellant was duty bound to follow the earlier order
F passed by the Division Bench and the Single Bench of the Delhi
High Court.

20. Mr. Andhyarujina also submitted that the learned Judge
of the High Court ought to have viewed the entire order in right
G perspective that the order was passed on the request made
on behalf of respondent no.3 who volunteered to deposit the
passports of respondent nos.4&5 presumably with their consent
and concurrence. In this view of the matter, the appellant cannot
be faulted for passing the order dated 04.3.2002.
H 21. Mr. Andhyarujina further argued that assuming that the
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 931
AND ORS. [DALVEER BHANDARI, J.]
'
4# order passed by the appellant was wrong or erroneous, even A
then the learned Judge of the High Court ought to have set
aside or modified the order but he was not justified in passing
totally unmerited and undeserved strictures and remarks
against the appellant.
B
" 22. In Kashi Nath Roy v State of Bihar (1996) 4 SCC
539, this court had an occasion to deal with a similar matter of
expunging of adverse remarks observed thus:
,1

~
"7. It cannot be forgotten that in our system, like elsewhere,
appellate and revisional Courts have been set up on the c
pre-supposition that lower Courts would in some measure
of cases go wrong in decision-making, both on facts as
also on law, and they have been knit-up to correct those
orders. The human element in justicing being an important
element, computer-like functioning cannot be expected of D
~- the Courts; however, hard they may try ad keep themselves
" precedent-trodden in the scope of discretions and in the
manner of judging. Whenever any such intolerable error is
detected by or pointed out to a superior Court, it is
functionally required to correct that error that may, here and E
there, in an appropriate case, and in a manner befitting,
maintaining the dignity of the Court and independence of
judiciary, convey its message in its judgment to the officer
concerned through a process of reasoning, essentially

•'"' persuasive, reasonable, mellow but clear, and result-
orienting, but rarely as a rebuke. Sharp reaction of the kind
F

exhibited in the afore-extraction is not in keeping with
institutional functioning. The premise that a Judge
committed a mistake or an error beyond the limits of
tolerance, is no ground to inflict condemnation on the
G
Judge-Subordinate, unless there existed something else

-
and for exceptional grounds."
"\
23. Lord Denning in his celebrated book 'The Due Process
of Law" has observed the importance of independence for
judicial officers in the following words: H
,,..._

932 SUPREME COURT REPORTS [2009] 11 S.C.R.

A "Every judge of the courts of this land - from the ~
highest to the lowest - should be protected to the same
degree, and liable to the same degree. If the reason
underlying this immunity is to ensure "that they may be free
in thought and independent in judgment", it applies to every
B judge, whatever his rank. Each should be protected from
liability to damages when he is acting judicially. Each
should be. able to do his work in complete independence
and free from fear. He should not have to turn the pages
)<
of his books with trembling fingers, asking himself: "If I do
this, shall I be liable in damages?" So long as he does his
..
c
work in the honest belief that it is within his jurisdiction, then
he is not liable to an action. He may be mistaken in fact.
He may be ignorant in law. What he does may be outside
his jurisdiction - in fact or in law - but so long as he
honestly believes it to be within his jurisdiction, he should
D
not be liable. Once he honestly entertains this belief
nothing else will make him liable. He is not to be plagued
with allegations of malice or ill-will or bias or anything of "'"
the kind. Actions based on such allegations have been
struck out and will continue to be struck out. Nothing will
E make him liable except it to be shown that he was not
acting judicially, knowing that he had no jurisdiction to do
it."

24. In Braj Kishore Thakur v. Union of India & Others y
F (1997) 4 sec 65, this court again dealt with a case of
expunging of adverse remarks. The court observed thus: •
"11. No greater damage can be caused to the
administration of justice and to the confidence of people
in judicial institutions when Judges of higher Courts publicly
G
express lack of faith in the subordinate Judges. It has been
said, time and again, that respect for judiciary is not in

H
hands by using intemperate language and by casting
aspersions against lower judiciary. It is well to remember
that a Judicial Officer against whom aspersions are made
).

-
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 933
AND ORS. [DALVEER BHANDARI, J.]

in the.judgment could not appear before the higher Court A
JI
to defend his order. Judges of higher Courts must,
therefore, exercise greater judicial restraint and adopt
greater care when they are tempted to employ strong
terms against lower judiciary."
B
25. Sulaiman J. in Panchanan Banerji v. Upendra Nath
Bhattacharji ((1926) I.LR. 49 All. 254, 256.] : (AIR 1927 All 193
at p.193) holds that section 561A of the Code of Criminal
Procedure, which was added in 1923, confers such a power
..
.,I

and he does not see any reason why such an inherent power
c
should not comprise a power to order a deletion of passages
which are either irrelevant or inadmissible and which adversely
affect the character of persons before the Court.

26. In the matter of H. Daly, AIR 1928 Lah 740 at page
742 Tek Chand, J. observed as under:- D

J,. "It is of the utmost importance to the administration of
...
justice that Courts should be allowed to perform their
functions freely and fearlessly and without undue
interference by this Court." E
27. Chagla, C.J. in State v. Nilkanth Shripad AIR 1954
Born. 65 observed as under:-

"It is very necessary, in order to maintain the independence
·,;
of the judiciary, that every Magistrate, however junior, F
~
should feel that he can fearlessly give expression to his
own opinion in the judgment which he delivers. If our
Magistrates feel that they cannot frankly and fearlessly deal
with matters that come before them and that the High
Court is likely to interfere with their opinions, the G
independence of the judiciary might be seriously
undermined.
;'\
:::t ' This Court further observed:

"that every judicial officer must be free to express his H
934 SUPREME COURT REPORTS [2009) 11 S.C.R.

A mind in the matter of the appreciation of evidence before \\.
him. The phraseology used by a particular Judge depends
upon his inherent reaction to falsehood, his comparative
command of the English language and his felicity of
expression. There is nothing more deleterious to the
B discharge of judicial functions than to create in the mind
of a Judge that he should conform to a particular pattern
which may, or may not be, to the liking of the appellate
Court. Sometimes he may overstep the mark. Whel') public
:..
interests conflict, the lesser should yield to the larger one.
c An unmerited and undeserved insult to a witness may
have to be tolerated in the general interests of preserving
the independence of the judiciary. Even so, a duty is cast
upon the judicial officer not to deflect himself from the even
course of justice by making disparaging and undeserving
remarks on persons that appear before him as witnesses
D
or otherwise. Moderation in expression lends dignity to his
office and imparts greater respect for judiciary. But ·~
,.
occasions do arise when a particular Judge, without any
justification, may cast aspersions on a witness or any other
person not before him affecting the character of such
E witness or person. Such remarks may affect the reputation
or even the career of such person. In my experience I find
such cases are very rare. But if it happens, I agree with
the Full Bench of the Bombay High Court that the appellate

F
Court in a suitable case may judicially correct the ..
observations of the lower Court by pointing out that the
'
observations made by that Court were not justified or were
without any foundation were wholly wrong or improper. This
can be done under its inherent power preserved under s.
561-A of the Code of Criminal Procedure. But that power
G must be exercised only in exceptional cases where the
interest of the Party concerned would irrevocably suffer."

28. In the famous case of L. Banwanri Lal v. Kundan Cloth
Mills Ltd., AIR 1937 Lahore 527, Skemp, J., more than eight
H decades ago, observed that reflections on the conduct of the
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 935
. AND ORS. [DALVEER BHANDARI, J.]

~ party should also be in sober language. The Court observed A
as under;
.. "In may be necessary for a Judge or a Magistrate to pass
reflections upon the conduct or honesty of a party or the
truthfulness of a witness; when this is necessary that should
B
be done in sober and becoming language.

29. In Dr. Raghubir Saran v. State of Bihar & Anr. AIR
..
,, 1964 p.1, this court while approving the judgment in AIR 1954
,. Born 65 at p.66 (FB) (supra), the court observed :-
c
"Whatever maybe the degree of impact, the result of
expunging remarks from a judgment is that it derogates
from its finality. A judgment of a lower Court may be wrong;
~
it may even be perverse. The proper way to attach that
judgment is by bringing it under the scrutiny of the superior D
Court and getting the judgment of the lower Court judicially
>
..; corrected. The inherent power that the High Court
possesses is, in proper cases, even though on appeal or
revision maybe preferred to the High Court, to judicially
correct the observations of the lower Court by pointing out
E
that the observations made by the Magistrate were not
justified or were without any foundation or were wholly
wrong or improper. The contrary view infringes the
fundamental principles of jurisprudence that a judgment
.. made by a Court, however inferior it may be in the
~
hierarchy, is final and it can only be modified in the manner F
prescribed by the law governing such procedure.

In this judgment the court further observed :-

"Every judicial officer must be free to express his mind in G
the matter of the appreciation of evidence before him. The
...._, phraseology used by a particular judge depends upon his
inherent reaction to falsehood, his comparative command
of the English language and his felicity of expression.
H
936 SUPREME COURT REPORTS [2009] 11 S.C.R.
,..
A 30. In Anjani K. Verma v. State of Bihar and Anr. (2004)
'-
11 sec 188, the court observed as under:-

".... at the same time, while passing strictures against a ..
member of the subordinate judiciary utmost care and
ca1ition is required to be taken, also having regard to the
B
stress and conditions under which, by and large, the
judicial officers have to render justice."

31. In A.M. Mathur v. Pramod Kumar Gupta & Ors. AIR ...
1990 SC 1737 this court has held as under:- ·•
c ~

"Judicial restraint and discipline are as necessary to the
orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, this humility
of function should be a constant theme of our judges. This
quality in decision making is as much necessary for
..-
D
judges to command respect as to protect the
independence of the judiciary. Judicial restraint in this ~
~

regard might better be called judicial respect; that is,
respect by the judiciary. Respect to those who come
before the Court as well to other co-ordinate branches of
EI
the State, the Executive and 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. "
F •
32. In the said decision, this court has also observed that '
Judges have the absolute and unchallengeable control of the
Court domain. But they cannot misuse their authority by
intemperate comments, undignified banter or scathing criticism
G of counsel, parties or witnesses. The Court further observed that
concededly 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 principle of the highest
importance to the proper administration of justice that
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 937
AND ORS. [DALVEER BHANDARI, J.]
"
..# derogatory remarks ought not to be made against persons or A
authorities whose conduct comes into consideration unless if
. is absolutely necessary for the decision of the case to
animadvert on their conduct.

33. In the said case, this court while quoting Justice
B
Cardozo and Justice Frankfurter stated th?t the judges are flesh
and blood mortals with individual personalities and with normal
· human traits. Still judicial restraint and discipline are as
,..
.. necessary to the orderly administration of justice as they are
to the effectiveness of the army. The duty of restraint should be
•
the constant theme of the judges, obser\ted the Court: "This
c
quality in decision making is as much necessary for judges to
command respect as to protect the independence of the
judiciary."

34. In yet another case of similar nature, this court in the D
case of Niranjan Patnaik v. Sashibhusan Kar and Anr., AIR
-'
1986 SC 819 again reminded that the higher the forum and
"''
greater the need for restraint and the more mellowed the
reproach should be. The court again reiterated the settled law
that harsh or disparaging remarks are not to be made against E
, persons and authorities whose conduct comes into
consideration before Courts of law unless it is really necessarY
for the decision of the case, as an integral part thereof to
animadvert on that conduct.
,,
.. F
35. In Samya Sett v. Shambhu Sarkar and Anr. (2005) 6
sec 767 at 773, this court observed as under:-
"In Alok Kumar Roy v. Dr. S.N. Sarma AIR 1968 SC 453
the vacation Judge of the High Court of Assam and
Nagaland passed an interim order during vacation in a G
petition entertainable by the Division Bench. After
reopening of the Court, the matter was placed before the
-\ Division Bench presided over by the Chief Justice in
accordance with the High Court Rules. The learned Chief
Justice made certain remarks as to "unholy haste and H
938 SUPREME COURT REPORTS [2009] 11 S.C.R.
,.,.

A ~
hurry" exhibited by the learned vacation Judge in dealing
with the case. When the matter reached this Court,
Wanchoo, C.J., observed: (SCR pp. 819 F-820 A):-

"It is a matter of regret that the learned Chief Justice
thought fit to make these remarks in his judgment
B
against a colleague and assumed without any
justification or basis that his colleague had acted
improperly. Such observations even about Judges
of subordinate courts with the clearest evidence of ....
impropriety are uncalled for in a judgment. When •
c made against a colleague they are even more open
to objection. We are glad that Goswami, J. did not
associate himself with these remarks of the learned
Chief Justice and was fair when he assumed that
Dutta, J. acted as he did in his anxiety to do what
D he thought was required in the interest of justice.
~
We wish the learned Chief Justice had equally y

made the same assumption and had not made
these observations castigating Dutta, J. for they
appear to us to be without any basis. It is necessary
E to emphasise that judicial decorum has to be
maintained at all times and even where criticism is
justified it must be in language of utmost restraint,
keeping always in view that the person making the
comment is also fallible." ~·

F •
In Samya Sett (supra), the court further observed:-

"It is universally accepted and we are conscious of the fact
that judges are also human beings. They have their own
likes and dislikes; their preferences and prejudices.
G Dealing with an allegation of bias against a Judge, in
Linahan, Re Frank J. stated:
'
"If, however, 'bias' and 'partiality' be defined to
mean the total absence of preconceptions in the
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 939
AND ORS. [DALVEER BHANDARI, J.]
(
> mind of the Judge, then no one has ever had a fair A
trial, and no one ever will. The human mind, even
.. at infancy, is. no blank piece of paper. 'vve are born
with predispositions and the processes of
education, formal and informal, create attitudes
which precede reasoning in particular instances B
and which, therefore, by definition are prejudices."

,. 36. Justice John Clarke has once stated:
•· "I have never known any judges, no difference how
austere of manner, who discharged their judicial c
duties in an atmosphere of pure, unadulterated
reason. Alas! we are 'all the common growth of the
.... Mother Earth' - even those of us who wear the
long robe."
D
,• (emphasis supplied)
~

37. Similar was the view of Thomas Reed Powell, who
said:

- "Judges have preferences for social policies as you and
I. They form their judgments after the varying fashions in
which you and I form ours. They· have hands, organs,
E

dimensions, senses, affections, passions. They are
'I warmed by the same winter and summer and by the same
ideas as a layman is." F
"
38. The learned counsel placed reliance on the judgment
of this Court in lshwari Prasad Misra v. Mohammad Isa (1963)
3 SCR 722. In this judgment, this court made some observations
regarding approach adopted by the High Court in passing the
G
remarks and comments about a judicial officer:

"\ "27. Before we part with this appeal, it is necessary that
we should make some observations c.tbout the approach
adopted by the High Court in dealing with the judgment of
the court which was in appeal before it. In several places H
940 SUPREME COURT REPORTS [2009] 1' S.C.R.

A the High Court has passed severe strictures against the
trial Court and has, in substance, suggested that the
decision of the trial Court was not only perverse but was ...
based on extraneous considerations. It has observed that
the mind of the learned Subordinate Judge was already
B loaded with bias in favour of the plaintiff an that the plaintiff
had calculated that such of the evidence as he would
produce "long with the pull and weight that would be
harnessed from behind would be sufficient to carry him ".,
through." Similarly. in criticising the trial Court for accepting
c the evidence of Jamuna Singh, the High Court has
observed that the presumption made by the trial Court that
teacher, as a rule, is a respectable person, "is not any legal
appreciation of the evidence but a way found to suit the
convenience of the court for holding in favour of the plaintiff."
..
It would thus be seen that in reversing the decision of the
D
trial Court, the High Court has suggested that the trial
' ...,,
Court, was persuaded by extraneous considerations and
that some pull and weight had been, used in favour of the
appellant from behind. "

E This Court observed:

"We are constrained to observe that the High Court
-
was not justified in passing these strictures against the trial
Judge in dealing with the present case. Judicial experience )-

F shows that in adjudicating upon the rival claims brought
before the courts it is not always easy to decide where
truth lies. Evidence is adduced by the respective parties
in support of their conflicting contentions and
circumstances are similarly pressed into service. In such
a case, it is no doubt, the duty of the Judge to consider
G
the evidence objectively and dispassionately, examine it
in the light probabilities and decide which way the truth )"

lies. The impression formed by the Judge about the
character of the evidence will ultimately determine the
conclusion which he reached. But it would be unsafe to
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 941
AND ORS. [DALVEER BHANDARI, J.]
..#
overlook the fact that all judicial minds may not react in the A
same way to the said evidence and it is not unusual that
.. evidence which appears to be respectable a1-.d trustworthy
to one Judge may not appear to be respectable and
trustworthy to another Judge. That explains why in some
cases courts of appeal reverse conclusions of facts B
recorded by the trial Court on its appreciation of oral
evidence. The knowledge that another view is possible on
~
,, the evidence adduced in a case, acts as a sobering factor
and leads to the use of temperate language in recording
judicial conclusions. Judicial approach in such cases c
should always b~ based on the consciousness that one
may make a mistake; that is why the use of unduly strong
words in expressing conclusions or the adoption of unduly
strong intemperate, or extravagant criticism, against the
contrary view, which are often founded on a sense of
D
,\ infallibility should always be avoided."
..;

This Court further observed that:

"In the present case, the High Court has used
intemperate language and has even gone to the length of E
f'
suggesting a corrupt motive against the Judgi:i who
decided the suit in favour of the appellant. In our opinion,
the use of such intemperate language may, in some cases,
·1 tend to show either a lack of experience in judicial matters
·" or an absence of Judicial poise and balance. We have F

- carefully considered all the evidence to which our attention
was drawn by the learned counsel on both the sides and
we are satisfied that the imputations made by the High
Court against the impartiality and the objectivity of the
approach adopted by the trial Judge are wholly unjustified.
G
It is very much to be regretted that the High Court should
~ have persuaded itself to use such extravagant language
in criticising the trial Court, particularly when our conclusion
in the present appeal shows that the trial Court was right
and the High Court was wrong. But even if we had not
H
942 SUPREME COURT REPORTS [2009] 11 S.C.R.

A upheld the findings of the trial Court, we would not have ...
approved of the unbalanced criticism made by the High
Court against the trial Court."

39. In another case, this Court deprecated the practice of
passing stricture against subordinate judicial officer. In State
B
of M.P. & Others v. Nandla/ Jaiswal & Others (1986) 4 SCC
566, the Chief Justice P.N. Bhagwati (as he then was) observed
that Judges should not use strong and carping language while
criticising the conduct of parties or their witnesses. They must
..
act with sobriety, moderation and restraint. They must have the
c humility to recognise that they are not infallible and any harsh
and disparaging strictures passed by them against any party
may be mistaken and unjustified and if so, they may do
considerable harm and mischief and result in injustice. Chief
Justice Bhagwati further observed that sweeping observations
D attributing mala fides, corruption and underhand dealing to the
State Government made by the High Court Judge were
unwarranted and not justified on record.
".,
40. In /tP. Tiwari v. State of M.P. 1994 Supp. (1) SCC
E 540, this court while dealing with a similar matter of expunging
of remarks observed thus:

"4. We are, however, impelled to remind the learned Judge
of the High Court that however anguished he might have
~
been over the unmerited bail granted to the accused, he
F should not have allowed himself the latitude of ignoring
•
judicial precaution and propriety even momentarily. The
higher Courts every day come across orders of the lower
courts which are not justified either in law or in fact and
modify them or set them aside. That is one of the functions
G of the superior courts. Our legal system acknowledges the
fallibility of the judges and hence provides for appeals and ...
revisions. A judge tries to discharge his duties to the best
of his capacity. While doing so, sometimes, he is likely to
err. It is well said that a judge who has not committed an
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 943
AND ORS. [.OALVEER BHANDARI, J.]

..J J error is yet to be born. And that applies to judges at all A
levels from the lowest to the highest. Sometimes, the
difference in views of the higher and the lower courts is
purely a result of a difference in approach and perception.
On such occasions, the lower courts are not necessarily
wrong and the higher courts always right. B

It has also to be remembered that the lower judicial
· officers mostly work under a charged atmosphere and are
~ constantly under a psychological pressure with all the
contestants and their lawyers almost breathing down their
necks more correctly up to their nostrils. They do not have
c
the benefit of a detached atmosphere of the higher courts
to think coolly and decide patiently. Every error, however
gross it may look, should not therefore, be attributed to
improper motive. It is possible that a particular judicial
officer may be consistently passing orders creating a D
~·
.. suspicion of judicial conduct which is not wholly or even
partly attributable to innocent functioning. Even in such
cases, the proper course for the higher court to adopt is
to make note of his conduct in the confidential record of
his work and to use it on proper occasions. E

The judges in the higher courts have also a duty to
ensure judicial discipline and respect for the judiciary from
.... all concerned. The respect for the judiciary is not enhanced
when judges at the lower level are criticised intemperately F
and castigated publicly, no greater damage and be done
to the administration of justice and to the confidence of the
people in the judiciary can when the judges of the higher
courts publicly express lack of faith in the subordinate
judges for one reason or the other. It must be remembered
G
that the officers against whom such strictures are publicly
...' passed stand condemned for ever in the eyes of their
subordinates and of the members of the public. No better
device can be found to destroy the judiciary from within.
The judges must, therefore, exercise self-restraint. There
H
944 SUPREME COURT REPORTS [2009] 11 S.C.R.

A are ways and ways of expressing disapproval of the orders 'l.
of the subordinate courts but attributing motives to them
is certainly not one of them. That is the surest way to take
the judiciary downhill."

41. It is the obligation and duty of the higher courts to
B
modify or set aside orders which are contrary to law or the facts
of the case. This is one of the most important functions of the
superior courts. Our legal system acknowledges the fallibility
of the judges and provides for appeals and revisions. Judges ~

of the superior courts while discharging their duty ought to be
c extremely careful before passing imputations, strictures and
remarks against subordinate judicial officers.

42. A three-Judge Bench of this court again dealt with a
similar issue In re: 'K' A Judicial Officer (2001) 3 SCC 54. In
D this case, the court passed a comprehensive order which reads
thus:
"
"15. In the case at hand we are concerned with the
observations made by the High Court against a judicial
officer who is a serving member of subordinate judiciary.
E
Under the constitutional scheme control over the district
courts and courts subordinate thereto has been vested in
the High Courts. The control so vested is administrative,
judicial and disciplinary. The role of High Court is also of
a friend, philosopher and guide of judiciary subordinate to y
F it. The strength of power is not displayed solely in cracking
..
a whip on errors, mistakes or failures; the power should
be so wielded as to have propensity to prevent and to
ensure exclusion of repetition if committed once innocently
or unwittingly. "Pardon the error but not its repetition". The
G power to control is not to be exercised solely by wielding
a teacher's cane; the members of subordinate judiciary
)a .,.__
look up to the High Court for the power to control to be
exercised with parent-like care and affection."

H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 945
AND ORS. [DALVEER BHANDARI, J.]

~ This Court further observed that: A
,. "The exercise of statutory jurisdiction, appellate or
revisional and the exercise of constitutional power to
control and supervise the functioning of the district courts
and courts subordinate thereto empowers the High Court B
to formulate an opinion and place it on record not only on
the judicial working but also on the conduct of the judicial
officers. The existence of power in higher echelons of

·-'
judiciary to make observations even extending to criticism
incorporated in judicial orders cannot be denied, however,
the High Courts have to remember that criticisms and
c
observations touching a subordinate judicial officer
incorporated in judicial pronouncements have their own
mischievous infirmities. Firstly, the judicial officer is
condemned unheard which is violative of principles of
natural justice. A member of subordinate judiciary himself D
,.,._;. dispensing justice should not be denied this minimal
natural justice so as to shield against being condemned
unheard. Secondly, the harm caused by such criticism or
observation may be incapable of being undone. ~uch
criticism of the judicial officer contained in a judgment, E
reportable or not, is a pronouncement in open and
;'
therefore becomes public. The same Judge who found
himself persuaded, sitting on judicial side, to make
-f observations guided by the facts of a single case against
a Subordinate Judge may, sitting on administrative side F
" and apprised of overall meritorious performance of the
Subordinate Judge, may irretrievably regret his having
made those observations on judicial side, the harming
effect whereof even he himself cannot remove on
administrative side. Thirdly, human nature being what it is, G
such criticism of a judicial officer contained in the judgment
of a higher court gives the litigating party a sense of vic~ory
not only over his opponent but also over the Judge who
had decided the case against him. This is subversive of
judicial authority of the deciding Judge. Fourthly, seeking H
946 SUPREME COURT REPORTS (2009] 11 S.C.R.

A expunging of the observations by a judicial officer by filing .....
an appeal or petition of his own reduces him to the status
of a litigant arrayed as a party before the High Court or
Supreme Court - a situation not very happy from the
point of view of the functioning of the judicial system. May
B be for the purpose of pleading his cause he has to take
the assistance of a legal practitioner and such legal -
practitioner may be one practising before him. Look at the
embarrassment involved. And last but not the least, the
possibility of a single or casual aberration of an otherwise
•
c honest, upright and righteous Judge being caught
unawares in the net of adverse observations c;annot be
ruled out. Such an incident would have a seriously
demoralising effect not only on him but also on his
colleagues. If all this is avoidable why should it not be
avoided?"
D
43. The remarks made against a judicial officer are so "..,
grave that even if they are expunged would not completely
restitute and restore the harmed Judge from the loss of dignity
and honour suffered by him. In re: 'K' A Judicial Officer (supra),
E the court further observed:
.....
17. The remarks made in a judicial order of the High Court
against a member of subordinate judiciary even if
expunged would not completely restitute and restore the
~
harmed Judge from the loss of dignity and honour suffered
F
by him. In Judges by David Pannick (Oxford University
•
Press Publication, 1987) a wholesome practise finds a
mention suggesting an appropriate course to be followed
in such situations:
G "Lord Hailsham explained that in a number of
cases, although I seldom told the complainant that
I had done so, I showed the complaint to the Judge "
concerned. I thought it good for him both to see what
was being said about him from the other side of the
H
::
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 947
AND ORS. [DA.LVEER BHANDARI, J.]

court, and how perhaps a lapse of manners or a A
momentary impatience could undermine
confidence in his decision."

44. Chief ~lustice K. G. Balakrishnan in a three-Judge
Bench of this Court in Ramesh Chander Singh v. High Court
8
of Allahabad and Anr. (2007) 4 sec 247 observed as under:-

"The higher court should convey its message in the
judgment to the officer concerned through a process of
reasoning, essentially persuasive, reasonable, mellowed
but clear and result oriented and rarely a rebuke." C

45. Mr. Andhyarujina lastly submitted that the strictures and
remarks passed against the appellant be expunged.

46. Mr. A Mariarputham, learned advocate appearing for
the High Court of Delhi submitted that the appellant is a very D
good judicial officer in the Delhi High Judicial Service. He
enjoys excellent reputation of ability and integrity. Mr.
Mariarputham also submitted that he has been consistently
getting outstanding (A+) in ACRs.
E
47. Mr. Mariarputham could not justify the remarks made
against the appellant and submitted that this Court may pass
an appropriate order.

• 48. We have heard the learned counsel for the parties at F
length and have carefully perused the records.

49. In the light of law which has been followed for several
decades, remarks, imputations and strictures passed by the
learned Single Judge of the High Court in this case are totally
unjustified, unwarranted and unnecessary for the following G
-\ reasons:

(a) The appellant has passed the order dated
04.3.2002 because respondent no.3 expressed
willingness to deposit the passports of his wife and H
948 SUPREME COURT REPORTS [2009] 11 S.C.R.

A mother, respondent nos. 4 and 5 in the court
presumably with their consent and concurrence. It
may be pertinent to observe that none of them
made any grievance about the said order.
Respondent nos. 4 and 5 sought modification only
B when they wanted to travel after five months of
passing the order.

(b) The appellant has followed the previous orders
~
passed by different Benches of the High Court. As
a Subordinate Judge, he was duty bound to follow
•
c the orders of the High Court. There was no
justification in passing any imputations, remarks or
strictures against the appellant for passing an order
in terms of earlier orders of the High court.

D (c) Assuming that the order passed by the appellant
was wrong or erroneous, even then the High Court .. ..
ought to have either modified or set aside the order,
but the High Court was not justified in passing
totally unmerited, derogatory, harsh and castigating
E remarks against the appellant.

50. When we examine the facts of the instant case in the
light of the judicial decisions spreading over a century, the
following principles of law can be culled out:
)-

F (I) Erosion of credibility of judiciary in the public mind, .
for whatever reason, is the greatest threat to the
independence of judiciary.

(II) Judicial dis{:ipline and restraint are imperative for
G
the orderly administration of justice.

(Ill) Judicial decorum makes it imperative that the
"-
courts' judgments and orders must be confined to
the facts and the legal position involved in the cases
and the courts should not deviate from propriety,
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 949
AND ORS. [DALVEER BHANDARI, J.]
';»~·
moderation and sobriety. A

(IV) Majesty of Court is not displayed solely in cracking
the whip on mistakes, inadvertent errors or lapses,
but by persuasive reasoning so that the similar
errors and mistakes are not repeated by the judicial
B
officers.

(V) Majesty of Court would be enhanced by practicing
_;i
discipline and self-restraint in discharging of all
• judicial functions. All actions of a judge must be
judicious in character. c
(VI) The role of superior courts is like a friend,
philosopher and guide of the judiciary subordinate
to it. The judicial officers have to be treated with
parental care and affection.
D
... "" (VII) The approach of the superior courts ought to be
correctional and not to be intended to harm or
ruining the judicial career of the officers.

(VIII) The superior courts should always bear in mind that E
the judicial officer is not before it and should
ordinarily refrain from passing strictures, derogatory
remarks and scathing criticism. The passing of
• such order without affording a hearing to the judicial
.. -(

officer is clearly violative of the principles of natural F
justice.

(IX) The superior courts should always keep in mind that
disparaging and derogatory remarks against the
judicial officer would cause incalculable harm of a
permanent character having the potentiality of G
spoiling the judicial career of the concerned officer.
Even if those remarks are expunged, it would not
completely restitute and restore the harmed judge
from the loss of dignity and honour suffered by him.
H
950 SUPREME COURT REPORTS [2009] 11 S.C.R.

A (X) The superior courts should convey its messages to
the concerned judicial officers through a process of
reasoning highlighting the correct provisions of law,
precedents and proper analysis of evidence and
material on record, but rarely by passing harsh and
B derogatory remarks.

(XI) The superior courts must always keep in mind that
it is a herculean task for the judicial officer to get
the derogatory remarks expunged by the superior
..
court. He is compelled to take assistance from
•
c lawyers and such a practitioner may be appearing
before him. It is embarrassing, humiliating, time
consuming and an expensive exercise.

(XII) The superior courts must always keep in mind that
D the much cherished judicial independence must not
be presented only from outside but from within, by
those who form the integral part of the judicial "...
system. Damage from within has much larger and
greater potential for harm than danger from outside.
We alone in judicial family can take care of it.
E
(XIII) The superior courts should not use strong,
derogatory, disparaging and carping language
while criticizing the judicial officers. They must
always keep in mind that, like all other human t
F beings, the judicial officers are also not infallible.
..
Any remarks passed against them may result in
incalculable harm resulting in grave injustice.

(XIV) The superior courts judges should not be, like a
G loose cannon, ready to inflict indiscriminate
damages whenever they function in judicial
capacity. .
(XV) The superior courts sr.ould keep in mind that

H
V.K. JAIN v. HIGH COURT OF DELHI THROUG.H R.G. 951
AND ORS.' [DALVEER BHANDARI, J.]

infliction of uncalled for, unmerited and undeserved A
remarks clearly amount to abuse of the process of
court.

(XVI) The superior courts should not allow themselves
even momentarily the latitude of ignoring judicial 8
precaution and propriety.

(XVII) It must be remembered that the subordinate judicial
officers at times work under charged atmosphere
and are constantly under psychological pressure
with all the contestants and their lawyers almost C
breathing down their necks and more correctly upto
their nostrils.

(XVIII) Err is human and no one is infallible. A judge who
has not committed an error is yet to be born. o
Judicial decorum has to be maintained at all times
and even where criticism is justified. It must be in a
language of utmost restraint always keeping in view
that the person making the comment is also fallible.

(XIX) Judges of the superior courts have a duty and E ·
obligation to ensure judicial discipline and respect
for judiciary from all concerned. The respect for the
judiciary is not enhanced when judges at the lower
-,j level are criticized intemperately and castigated
A publicly. Our legal system acknowledges the F
fallibility of the judges and provides for appeals and
revisions.

(XX) It is the duty and obligation of the judges of the
superior courts to ensure that independence of G
judiciary is not compromised and every judicial
officer should feel that he can freely and fearlessly
give expression to his own opinion. This is
absolutely imperative in maintaining the
independence of judiciary. H
952 SUPREME COURT REPORTS [2009) 11 S.C.R.

A (XXI) The superior courts' judges must always bear in
mind that no greater damage can be caused to the
administration of justice and to the confidence of
people when judges at superior courts express lack
of faith either in ability or integrity of subordinate
B judges.

51. On consideration of the totality of the facts and
circumstances, the impugned order passed by the learned
Single Judge cannot stand scrutiny of law as far as passing the •
C remarks and strictures against the appellant are concerned and
consequently we deem it appropriate to set aside the impugned
order to the extent of expunging the remarks made against the
appellant in the said order. We order accordingly.

52. The appeal is accordingly allowed and disposed of.
D
D.G. Appeal allowed.

lr
...