KASH! NATH ROY

STATE OF BIHAR

APRIL 18, 19%

[M.M. PUNCHHl AND K.T. THOMAS, .IJ.[

Judicial Stlicture :

J11dicial Officer belonging tu supe1ior J11dicial Sc11'ice-Bail in a dacoil\' casc--Earlier reject<:d by his predecesso1ra11t <~(bail in that ca.re--Cancclled by Single Judge of High Cowt-Sllicl11rcs 11as.ml against the J11dicia/ Ojjice1--0n appeal, lte/d, disclosing his mind wltilc granting bail wo11/d lta\'e hecn avoided-Ho1vever it is not such a glaring 111istake or in1pro1Jricty so as to visit the ren1a1*s the High Cozat has chosen to pass on hinz as ivell as to initiate action against hint-Whenever such intolerable ennr is detected or D pointed out to a supelior cou1t it is functionally required to conect that enor

in a befitting 111anner through a process of reasoning-But rarely as a rebuke-Hence the ren1arks as such ~1-'ere pulled out fron1 the orders of the High Cowt-Se1vice Law-Supe1ior Judicial Sc1vic<-fudicial stricture-Expunction of

CRIMINAL APPELLATE .JURISDICTION: Criminal Appeal No. 554 of 1996.

From the Judgment and Order dated 21.5.93 of the Patna High Court in Crl. Misc. No. 3442 of 1993.

S.B. Sanyal, Braj K. Mishra and Ejaz K. Maqbool for the Appellant.

H.L. Agarwal and AK. Jha for the Respondent.

The following Order of the Court was delivered :

Delay condoned.

Leave granted.

This is an appeal by a .Judicial Officer in the Superior Juoicial Service H serving in the State of Bihar, who is aggrieved against an order of a learned 558

K.N.ROYv. STATE 559

Single Judge of the High Court of Patna in refusing to expunge remarks A passed against him in a judicial order.

The broad facts giving rise lo this appeal are that some accused in a dacoity case, at one point of time, approached the Court of Session, Munger for bail. The learned Sessions Judge rejected their bail application on 15.4.1991. About three months later, the request was renewed. The appellant by then, had assumed Chair in succession. Prayer for bail was reiterated before him on the ground that the evidence of Test Identification Parade of the culprits gathered by the investigation, an evidence important in a dacoity case, was highly suspicious inasmuch as the witnesses who were made to participate in the same, had already on their own disclosed the names of the accused committing the crime to the Investigating officer, which fact the appellant verified from the case-diary to be correct. Viewing

that ground for bail had been made out, he granted bail to the accused persons vide order dated 17.8.1991. This provoked an application for cancellation of bail at the instance of the complainant before the High D Court. A learned Single Judge of that Court set aside that order and cancelled bail passing remarks that the appellant seemed to have been over-zealous, having gone out of his way in virtually approving the defence case, involving the merit of the matter, as if sitting on trial, forgetting the scope of discussion in disposing of a bail matter. Having observed this, he passed the following order : E

"While parting \vith the order, I must opine. that by the aforesaid act, it remains not at all doubtful that this officer has intentionally exceeded and/or transgressed his limits by avoiding and in not maintaining the established decorous norms of the Institution. I, F therefore, say that in my considered view, this officer, K.N. Roy, the then Jncharge sessions Judge, Munger, must be appropriately condemned and, for this, I understand that the only proper forum being the Standing Committee of the Court, this matter may laid before it under administrative approval of the Hon'ble Chief Justice, as scheduled by his Lordship. And ultimately I suggest that G this officer should be divested from exercise of powers on the criminal side!!.

The appellant's effort to have expunged remarks made qua him in the orders of the High Court, in particular those as extracted above, failed H

SUPREME COURT REPORTS [1996] SUPP. 1 S.C.R.

giving rise to this appeal.

As embedded in the criminal jurisprudence obtaining in this country, courts exercising bail jurisdiction normally do and should refrain from indulging in elaborate reasoning in their orders in justification of grant or non-grant of bail. For, in that manner, the principle of "presumption of innocence of an accused" gets jeopardized; and the structural principle of "not guilty '.ill proved guilty" gets destroyed, even though all sane elements have always understood that such views are tentative and not final, so as lo affect the merit of the matter. Here, the appellant has been caught and exposed to a certain adverse comment and action solely because in reason- C ing he had disclosed his mind while granting bail. This may have been avoidable on his part, but in terms not such a glaring mistake or impropriety so as to visit the remarks that the High Court has chosen to pass o'n him as well as to initiate action against him, as proposed.

D It cannot be forgotten that in our system, like elsewhere, appellate and revisional courts have been set up on the pre-supposition that lo\ver 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 lo correct those orders.

The human element injusticing being an import"hl element, computer-like functioning cannot be expected of the courts; however hard they may try E and 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 and n1ay, here and there, in an appropriate case, and in a manner befitting, maintaining the dignity of the Court and independence of

r judiciary, convey its message in its judgment to the officer concerned '

through a process of reasoning, essenlially persuasive, reasonable, mellow but clear, and result-orienting, but rarely a.:; a rebuke. Sharp reaction of the kind exhibited in the aforeextraction is not in keeping with institution- Jl 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 Judge-Subordinate, unless there existed something else and for exceptional

grounds.

We should therefore think, without such ado, that the High Court was unkind to the appellant and therefore the afore-paragraph deserves to H be and is hereby pulled out from the orders of the High Court dated

KN. ROYi-. STATE 561

28.1.1993 passed in Criminal Miscellaneous No. 12034 of 1991 titled Lala A Pandey v. State of Bihar and 3 Others, decided by the High Court of Patna,

as well as all other references in the said order which tell upon the fucctioning of the appellant.

We thus conclude resisting the temptation to say any more.

The appeal is allowed.

G.N.

Appeal allowed.