K.P. TIWARI A v.

STATE OF MADHYA PRADESH

OCTOBER 29, 1993

[P.B. SAWANT AND YOGESHWAR DAYAL, JJ.] B

Administration of Justice-Judicial discipline-Judicial Office~Addi tional Sessions Judge--Grant of unmerited bail by-Bail €Jrder reversed by High Court-Remarks passed against judicial officer in judgment attributing motive to him--f'ower of higher courts to pass strictures against judges of C subordinate courts-Held, judges of superior courts must exercise selfrestraint and should not ignore judicial precaution and propriety-While expressing disapproval of orders of subordinate courts, motive should not be attributed to them--Proper course to adopt is to make not of conduct of concerned officer in confidential record of his work if he is consistently passing orders D creating a su8picion of judicial conduct.

The petitioner was an Additional District Judge. Bail applications of five accused charged with offences punishable under ss. 147, 148, 149, 506, 341 and 302, IPC came before him for consideration at a time when a charge-sheet in respect of the offence committed by the accused was being E processed in the court of Chief Judicial Magistrate. The petitioner con sidered the bail applications on merits and rejected the same. Inspite of the rejection on merits, he first granted the accused temporary bail and subsequently permanent bail. On an application for cancellation of bail preferred by the complainant, the High Court held that there was no justification for granting bail to any of the accused. While reversing the F orders of bail passed by the petitioner, the High Court made remarks in the judgment attributing motive to him. The petitioner filed the special leave petition seeking expunction of the remarks made against hini by the High Court in its judgment.

G Allowing the petitions and expunging the impugned remarks, this Court,

HELD : 1.1. It is one of the functions of the superior courts to modify or set aside the orders of the lower courts which are not justified in law or in fact. Our legal system acknowledges the fallibility of judges and hence H 497

A 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.

Every error, however gross it may look, should not therefore, be attributed to improper motive. [500-A-D]

1.2. If a particular judicial officer is consistently passing orders B creating suspicion of judicial conduct which is not wholly or even partly . attributable to innocent functioning, the proper course for the higher court to adopt is to made not of his conduct in the confindential record of his work and to use it on proper occasion. [500-E]

C 1.3. The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary fom all concerned. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly pass stricture against the subordinate judges and express lack of faith in them. The judges must, therefore, exercise self-restraint D and should not ignore judicial precaution and propriety. There are ways of expressing disapproval of the orders of the subordinate courts but attributing motives is certainly not one of them. [500-F -HJ

CRIMINAL APPELLATE JURISDICTION: Special leave Petition E (CRL.) No. 2081-82of1993.

From the Judgment and order dated 13.7.91 of the Madhya Pradesh High Court in Misc. Crl. Case No. 816/91 and 466/91.

KN. Shalla and Ahmed Khan for the petitioner.

F The Order of the Court was delivered :

This is petition by a judicial officer who at the relevant time was an Additional Sessions Judge, for expunging remarks which were made against him by the High Court while reversing the orders of bail passed by G him in Miscellaneous Criminal Case No. 816 of 1991 and 466 of 1991.

2. The undisputed fact are that the accused in those cases are charged with the offences punishable under Sections 147, 148, 149, 506, 341 and 302 of the Indian Penal Code. A charge-sheet was being processed in respect of the offences in the Court of the Chief Judicial Magistrate at the H relevant time. The five accused in the meanwhile, applied for bail. Their

application was considered on merits and rejected by the petitioner. How- A ever, in spite of the rejection of the application on merits, the petitioner first granted the accused temporary bail for one reason or the other and all of them were subsequently granted permanent bail. Against the order granting permanent bail, the complainant preferred an application to the High Court and prayed for cancellation of the bail. This State did not file B a separate application but supported the complainant's application and also pressed for the cancellation of the bail. The High Court discussed the case of each of the five accused who were granted bail and pointed out that on facts there was no justification for granting bail to any of them and by its order of 13th July, 1991 cancelled the bail . of all the accused.

However, while passing the order, the High Court made the following C observations :

"The fact that the final grant was made without hearing the State

Govt. and without verifying the fact, points to the interestedness of Shri K.P. Tiwari, learned First Addi. Sessions Judge in the non-applicants. Indeed this interestedness is apparent in all the D five cases. The impression that one gets is that Shri R.P. Tiwari, First A.SJ. has been won over by the non-applicants and therefore was often to write any judgment, or order, releasing non-applicants on bail. It is therefore a case where the non-applicant [sic] not only have shown disregard to law and the judicial process but are also E reasonably suspected of exercising corrupt influence over Shri K.P.

Tiwari, the Frrst A.SJ. This court has necessarily to recall such orders.

xxx xxx xxx xxx

Indeed, it (court) will be failing in its duty if it accepts corrupting influence of the non-applicants [sic] and perm.its illegal orders to remain effective."

There is no doubt that the High Court was fully justified in cancelling the bail granted by the petitioner. In fact, on the facts and circumstances G on record, we are not all satisfied that there was only case on favour of the accused for releasing them on bail.

We are, however, impelled to remind the learned Judge of the High Court that however anguished be might have been over the unmerited bail H

A granted to the accused, he 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 of the superior courts. Our legal system acknow- B ledges 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 error is yet to be born. And that applies to judges at all levels from the lowest to the highest. Sometimes, the difference C 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. 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

.D contestants and their lawyers almost breathing down their necks - more correctly upto their nostrils. They do not have 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 E consistently passing orders creating a 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 not of his conduct in the confidential record of his work and to use it o~ proper occasions. The judges in the higher courts have also a duty to ensure judicial discipline and respect for the judiciary. from all concerned. The F respect for the judiciary is not enhanced when judges at the lower level are criticised intemperately and castigated publicly. No greater damage can be done to the administration of justice and to the confidence of the people in the judiciary than when the judges of the higher courts publicly express lack of faith in the subordinate judges for one reason or the other. It must G be remembered that the officers against whom such strictures are publicly passed, stand condemned for ever 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 are ways and ways of expressing disapproval of the orders of the H subordinate courts but attn'buting motives to them is certainly not one of ·

them. That is the surest way to take the judiciary downhill.

We, therefore, accept the petition and expunge the above-quoted remarks from the judgment of the leaned Judge of the High Court delivered on 13th July, 1991 in Misc. Criminal Case Nos. 816 and 466 of

1991. The petition is allowed accordingly.

R.P.

Petition allowed.