ivil Appeal No 1537 of 1990 From the Judgment and Order dated 621989 of the Madhya Pradesh High Court in MCC No 213 of 1988
K Parasaran PP Rao Sushil Kumar Jain Mrs Pratibha Jain and Sudhanshu Alreya for the Appellant
ML Chansoria RK Gupta KK Gupta Dr AM Singhvi Ashok Mathur and N Waziri for the Respondents
The Judgment of the Court was delivered by K JAGANNATHA SHETTY J
Special leave granted
Mr BM Lal J of the Madhya Pradesh High Court while dismissing an apparently unsustainable review petition has however made certain derogatory remarks against Mr AM Mathur senior Advocate and also the Ex Advocate General of the State
Mr Mathur has appealed to this Court for setting aside that order
This matter pertains to a case which has come to be known as MP Liquor case
It was with regard to the grant for construction of new distillaries by the policy decision of the State Government of Madhya Pradesh
That policy decision was challenged before the High Court by way of writ petitions
The Writ Petitions were allowed by the Division Bench consisting of the Acting Chief Justice Mr JS Verma as he then was and Justice BM Lal
In those writ peti tions 113 Mr Mathur as Advocate General appeared and argued for the State Government
Learned Acting Chief Justice delivered the main judgment in the writ petitions invalidating the deci sion of the Government on the ground that it violated Arti cle 14 of the Constitution
Justice BM Lal delivered a separate concurring opinion in which he made highly dispar aging remarks attributing mala fides and underhand dealing to the State Government
Against the judgment of the High Court several appeals including one by the State of Madhya Pradesh were filed before this Court
The appeal preferred by the State was argued by the then Attorney General of India assisted by the appellant
This Court
allowed the appeals and set aside the judgment of the High Court
The decision of this Court has since been reported in  of MP vs Nandlal Jaiswal  Ors
Bhagwati CJ speaking for the Court in that case while expressing strong disapproval of the strictures made by BM Lal J observed at p 66 We may observe in conclusion that Judges should not use strong and carping language while criticising the conduct of parties of their witnesses
They must act with sobriety moderation and restraint
They must have the 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 consider able harm and mischief and result in injustice
Here in the present case the observations made and strictures passed by BM Lal J were totally unjustified and unwarranted and they ought not to have been made
 On or about 3rd June 1988 ie after a delay of 738 days Mr Promod Kumar Gupta Advocate who had no connection whatsoev er with the earlier litigation in the writ petitions or appeals filed a review petition before the High Court
He was represented by Mr section Dixit Advocate
In the review petition it was inter alia alleged that the State Government by committing fraud has procured the judgment from the Supreme Court thereby vitiating the most solemn proceedings of the Apex Court of the Nation
He has also filed an appli cation No 3858 of 1988 for interim findings on the question of fraud
On 29 October 1988 the matter was listed for admission before a Bench consisting of learned Judges Mr CP Sen and Mr BM Lal
After arguments CP Sen J seems to have dictated his order in the 114 open Court dismissing the review petition
He expressed the view that the petitioner has no locus standi to file the petition and the economically well to do parties to the writ petitions who lost their case before this Court did not choose to file any review petition
He also held that the petition for review was not maintainable before the High Court since the decision of the High Court was reversed by this Court
The petition was also held to be hopelessly barred by limitation and there was no sufficient cause for condoning the inordinate delay
BM Lal J did not pass any order on 29 October 1988
He pronounced his order on 6th February 1989
In this inter regnum there was another application from Mr Gupta
On 25 January 1989 he filed an application in the aforesaid review petition requesting the Court to take judicial notice of some extract of the Vidhan Sabha proceedings and to pass appropriate strictures against the appellant
According to him that extract of the proceedings of the Vidhan Sabha would lend credence to his contention that the State has practised fraud on the Court
That application was not served on the appellant nor the Court gave him any opportu nity to file his counter
It may be mentioned that Mr Mathur has tendered his resignation as Advocate General on 25 January 1989
On 6 February 1989 the said application was taken on record along with the documents annexed there by
On the same day BM Lal J pronounced his order dis missing the review petition
The relevant portion of that order is as under While briefing about the application for amendment of the return to the Chief Minister Shri Arjun Singh had Shri AM Matbut Advocate General acted in bona fide and honest manner the fraud on the Court would have been avoided
So also the misleading press statement by the Chief Minister to the Blitz would have been on true facts and this situation would not have arisen putting the Courts in an embarrassing position
 Continued It is the moral duty of a lawyer much less the Advocate General to act faithfully for the cause of his client and to furnish information about the Court s proceedings cor rectly
In the past the chair of Advocate General was adorned by glorious and eminent lawyers who never showed any sycophancy and never suffered from mosaifi
As such the 115 action on the part of the Advocate General was not befit ting to the status of the High Office
 Added It appears that this was the reason that Shri AM Mathur avoided filing reply to the petition and skilfully succeeded in his attempt to abstain himself from the case on288 1988 presumably he had no courage to face the situation Finally rounded off the conclusion As far as exercise of jurisdiction of this Court is con cerned observing the judicial discipline envisaged under Article 141 of the Constitution and has been merged in the decision of the Supreme Court particularly when the decision of this Court in State of Madhya Pradesh vs Nandial Jaiswal case it is for the petitioner if he is so advised to vindicate his grievances before the Apex Court
Learned counsel further pointed out that one of the distiller s application for modification of the order is sub judice before the Apex Court
As such in view of the observations made in AR Antulay s case 1988 SCC II 602 the petitioner if so advised may approach the Apex Court for getting redress
 From the foregoing order it will be seen that the learned Judge seems to have formed an opinion that the appellant did not act honestly and bona fide in briefing the then Chief Minister Mr Arjun Singh and if he had acted bona fide and in honest manner the fraud on the Court would have been avoided and the Chief Minister would not have given a misleading press statement
He has also remarked that the appellant did not act befitting with the status of the High Office of the Advocate General and he did not have the courage to face the situation in the Court
Such are his conclusions or surmises in the review petition which was not disposed of on the merits but dismissed for want of jurisdiction
The appellant s complaint before us is that he had no opportunity to meet the allegations in the review petition much less as against averments in the subsequent application dated 25 January 1989
He made it clear to the High Court on 6 October 1988 and also 116 on 29 October 1988 that he entered appearance pursuance to service of a copy of the review petition as per the High Court rules on the Advocate General s office
He has not entered appearance as such on behalf of the State or other respondents
He has further made it clear that there was no ground for review and it deserved to be dismissed and so he did not wish to enter appearance at that stage before the admission of the review petition
The appellant appears to be correct in these statements and they are found recorded in the Court proceedings dated 6 October 1988
It may be noted that CP Sen J dismissed the review petition on the ground of maintainability limitation and locus standi of the petitioner
Thereafter the application was filed to pass strictures against the appellant in the light of the Vidhan Sabha proceedings
BM Lal J seems to have acceded to that request
No doubt each Judge is inde pendent to form an opinion of his own in deciding cases or in any phase of the decisional function
But the facts of the present case against the background of the views ex pressed by this Court apropos to the earlier strictures against the Government should have warned BM Lal J no matter how clear he was in his mind not to criticise the appellant
The avoidance of even the appearances of bitter ness so important in a Judge required him not to cast aspersions on the professional conduct of the appellant
Justice Cardozo of course said The great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by
We like to figure to ourselves the processes of justice as coldly objective and impersonal
The law conceived of as a real existence dwelling apart and alone speaks through the voices of priests and ministers the words which they have no choice except to utter
That is an ideal of objec tive truth toward which every system of jurisprudence tends  
It has a lofty sound it is well and finely said but it can never be more than partly true 1 Justice Felix Frankfurter put it with a different emphasis Judges are men not disembodied spirits
Of course a Judge is not free from preferences or if you will biases
2 1 The Nature of the Judicial Process by Benjamin N Cardo zo p 168 169
2 Some observations of Felix Frankfurter J on the Nature of Judicial Process of Supreme Court Litigation 98 Proceedings AM Phil Society 233 1954
117 It is true that the judges are flesh and blood mortals with individual personalities and with normal human traits
Still what remains essential in judging Justice Felix Frankfurter said First and foremost humility and an understanding of the range of the problems and one s own inadequacy in dealing with them disinterestedness   and allegiance to noth ing except the effort to find that pass through precedent through policy through history through one s own gifts of insights to the best judgment that a poor fallible crea ture can arrive at in that most difficult of all tasks the adjudication between man and man between man and state through reason called law3 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 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 the State the Execu tive 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
The Judges Bench is a seat of power
Not only do judges have power to make binding decisions their decisions legit imate the use of power by other officials
The Judges have the absolute and unchallenged control of the Court domain
But they cannot misuse their authority by intemperate com ments undignified banter or scathing criticism 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 gener al principle of the highest importance to the proper admin istration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct
See i RK Lakshmanan vs
AK Srinivasan 1976 I SCR 204 and ii Niranjan Patnaik vs Sashibhushan Kar at 576
3 The Judiciary and Constitutional Politics Views from the Bench by Mark W Cannon and David MO s Brien p 27
118 Learned Judge having held that the High Court has no jurisdiction to entertain the review petition ought not to have commented on the professional conduct of the appellant and that too without an opportunity for him
We regret to note that the observations made and aspersions cast on the professional conduct of the appellant are not only without jurisdiction but also they are wholly and utterly unjusti fied and unwarranted
We therefore allow the appeal and expunge all the remarks made by BM Lal J against the appellant in the impugned order
Normally we would have awarded heavy costs against the respondent but since the respondent is also an Advocate we refrain from making any order as to costs
GN Appeal allowed


Summary:
The officers of the Department of Revenue Intelligence DRI intercepted one truck
On search a large quantity of hashish was recovered
In the course of investigation the names of the appellant and the petitioner surfaced
Both of them made confessional statements to the DRI officials
Complaints were lodged against the appellant and the petitioner under the Narcotic DrUgs  Psychotropic Sub stances Act 1985 and the 
On their apply ing for enlargement on bail the selfincriminating statements made by them to the DRI officials were used against them by the prosecution
The appellant and the petitioner argued before the Single Judge of the High Court hearing the bail applications that the said statements were not admissible in evidence in view of section 25 of the Evidence Act
The learned Single Judge referred the question of admissibility of the confessional statements to the Division Bench which concluded that the officials of the DRI invested with powers under section 53 of the Narcotic Act did not possess any of the attributes of an officer in charge of a police station conducting an investigation under Chapter XII of the Code of Criminal Procedure
Against this decision of the Division Bench the appellant and the petitioner have appealed to this Court
It was contended before this Court on behalf of the appellant and the petitioner that 1 the expression police officer  used in section 25 64 of the Evidence Act must not be read in the narrow sense of only those officers belonging to the regular police force but must be construed broadly to include all those who have been invested with powers of the police in the matter of investigation of a penal offence 2 when such extensive powers are conferred on the officers appointed under the Act and the consequences are so drastic it is desirable that the protection of section 25 Evidence Act should be ex tended to persons accused of the commission of any crime punishable under the Narcotic Act 3 since the Act does not prescribe the procedure for investigation the officers invested with power under section 53 of the Act must neces sarily resort to the procedure under Chapter XH of the Code of Criminal Procedure 1973 which would require them to culminate the investigation by submitting a report under section 173 of the Code and 4 since the officers referred to in section 53 have been invested with all the powers of an officer in charge of a police station for investigation of offences under the Narcotic Act they have all the at tributes of a police officer investigating a crime under Chapter XII of the Code of Criminal Procedure 1973 and would therefore fail within the expression police offi cer in section 25 of the Evidence Act
Dismissing the appeal and the special leave petition this Court HELD 1 Section 25 Evidence Act engrafts a wholesome protection
It must not therefore be construed in a narrow and technical sense but must be understood in a broad and popular sense
But at the same time it cannot be construed in so wide a sense as to include persons on whom only some of the powers exercised by the police are conferred within the category of police officers
73B C Balbir Singh vs State of Haryana JT  The State of Punjab vs Barkat Ram  at 347 and Raja Ram Jaiswal vs State of Bihar  at 761 referred to
2 Even if an officer is invested under any special law with powers analogous to those exercised by a police officer in charge of a police station investigating a cognizable offence he does not thereby become a police officer under Section 25 Evidence Act unless he has the power to lodge a report under Section 173 of the Code
76C Badku Joti Savant vs State Of Mysore   Romesh Chandra Mehta vs State of West Bengal  Illias vs Collector of Customs Madras   State of UP vs 65 Durga Prasad and Balkishan A Devidayal vs State of Maharashtra   referred to
3 The role of the officers effecting arrest or sei zure except in the case of a police officer ends with disposal of the person arrested and the article seized in the manner provided by sections 52 and 52A of the Act
Section 57 obliges the officer making the arrest or seizure to report the same to his superior within 48 hours
These powers are more or less similar to the powers conferred on Customs Officers under the 
80F G 4 The important attribute of police power is not only the power to investigate into the commission of cognizable offence but also the power to prosecute the offender by filing a report or a charge sheet under section 173 of the Code
81H 82A 5 There is nothing in the provisions of the Act to show that the legislature desired to vest in the officers appointed under section 53 of the Act all the powers of Chapter XII including the power to submit a report under Section 173 of the Code82C D 6 Section 36A 1d of the Act makes it clear that if the investigation is conducted by the police it would conclude in a police report but if the investigation is made by an officer of any other department including the DRI the Special Court would take cognizance of the offence upon a formal complaint made by such authorised officer of the concerned Government
82F G 7 The Division Bench is right in holding that a con fessional or self incriminating statement made by a person accused of having committed a crime under the Narcotic Act to an officer invested with the power of investigation under section 53 of the Act was not hit by section 25 of the Evidence Act
67G Mahesh vs Union of India  Mangal Singh vs The State of Gujarat  Radha Kishan Marwari vs King Emperor Patna 46 and Sheikh Ahmed vs Emperor Bombay 78 referred to