AWANI KUMAR UPADHYAYversusTHE HONBLE HIGH COURT OF JUDICATURE AT ALLAHABAD AND ORS.

                         (2013] 3 S.C.R. 416

A                   AWANI KUMAR UPADHYAY
                                   v.
       THE HON'BLE HIGH COURT OF JUDICATURE AT
                    ALLAHABAD AND ORS.
            (Civil Appeal Nos. 1340-1341 of 2013)
B                      FEBRUARY 13, 2013.

    [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

        Judiciary - Strictures against judicial officer - Propriety of
C - Held: Legal system acknowledges fallibility of the Judges,
  hence provides for appeals and revisions - Remarks/
   observations and strictures against lower judicial officers
  should be avoided particularly when the officer has no
   occasion to put forth his reasonings - In the instant case, in
D view of the facts, strictures against the judicial officer not
  justified.

       The High Court, while allowing a second appeal,
  passed severe strictures against the appellant, who was
E a judicial officer, and had decided the additional issues
  in the case, on the directions issued by his predecessor
  judicial officer. The appellant filed modification
  application for expunging the remarks, and the same was
  disposed of without modifying the judgment. The
  appellant filed present appeals seeking expunction of the
F adverse remarks.

        Allowing the appeals, the Court

       HELD: 1. The higher courts every day come across
G orders of the lower courts which are not justified either in
  law or in fact and modify them or set them aside. The legal .
  system acknowledges the fallibility of the Judges, hence
  it provides appeals and revisions. Inasmuch as the lower
  judicial officers mostly work under a charged atmosphere
H                                 416
AWANI KUMAR UPADHYAYv. HON'BLE HIGH COURT OF417
          JUDICATURE AT ALLAHABAD
and are constantly under psychologica.1 pressure and they      A
do not have the facilities which are available in the higher
courts, the remarks/observations and strictures are to be
avoided particularly if the officer has no occasion to put-
forth his reasonings. It is settled legal position that no
adverse remark can be made against any judicial officer        B
without giving an opportunity to explain the conduct.
[Paras 6 and 12] [421-H; 424-E-H]

     2. If the passage complained of is wholly irrelevant
and unjustifiable and its retention on the records will C
cause serious harm to the persons to whom it refers and
its expunction will n~t affect the reasons for the judgment
or order, request for expunging th.ose remarks are to be
allowed. Harsh or disparaging remarks are not to be
made against judicial officers and authorities whose
conduct comes into consideration before courts of law D
unless it is really for the decision of the case as an .
integral part thereof. [Para 12] [424-H; 425-A-B]

      3. The adverse remarks made against the appellant
were neither justified nor called for. The perusal of the E
impugned judgment would show that the word "severe
strictures" is mentioned whereas no logical reasoning
has been given as ~o what is the fault of the appellant and
the High Court has not adduced any finding as to why it
has disagreed with the reasoning given by the appellant F
particularly when the appellant asserted that neither he
has rendered any decision as trial court Judge nor as the
first Appellate Court Judge except deciding 12 additional
issues on the directions issued by his predecessor. The
strictu.res passed against the' appellant are neither G
warranted nor is in conformity with the settled law as ..
propounded by this Court. The adverse remarks passed
in the impugned judgment and the final orders, insofar
as the appellant is concerned are set aside. [Para 13 and
14] [425-C-F]
                                                            H
    418      SUPREME COURT REPORTS              [2013] 3 S.C.R.

A        Parkash Singh Teji vs. Northern India Goods Transport
    Company Private Limited and Anr. (2009) 12 SCC 577:2009
    (6) SCR 278; Amar Pal Singh vs. State of Uttar Pradesh and
    Anr. (2012) 6 sec 491: 2012 (5) SCR 1154 - relied on.
                         Case Law Reference:
B
          2009 (6) SCR 278        Relied on            Para 6

          2012 (5) SCR 1154       Relied on            Para 7

          CIVIL APPELLATE JURISDICTION : Civil Appeal Nos.
C 1340-1341 of 2013.
         From the Judgments & Orders dated 01.03.2012 &
    23.04.2012 of the High Court of Judicature at Allahabad in
    Second Appeal No. 1444 of 2000 and Civil Misc. Modification
0   Application No. 122702 in Second Appeal No. 1444 of 2000.

         Harshvir Pratap Sharma, B.P. Gupta, Naresh. Kumar for
    the Appellant.

      Ravi Prakash Mehrotra, Deepti R. Mehrotra, Vibhu Tiwari,
E Vishwajit Singh, Ashok Kumar Gupta II for the Respondents.

          The Judgment of the Court was delivered by

          P. SATHASIVAM, J. 1. Leave granted.

F       2. These appeals arise from the judgment and final orders
  dated 01.03.2012 and 23.04.2012 passed by the High Court
  of Judicature at Allahabad in Second Appeal No. 1444 of 2000
  and Civil Misc. Modification Application No. 122702 of 2012
  in Second Appeal No. 1444 of 2000 respectively, whereby the
G High Court, while allowing the second appeal, passed severe
  strictures against the appellant-herein and forwarded a copy of
  its judgment to Hon'ble Chief Justice of the High Court to
  consider as to whether disciplinary proceedings are warranted
  against him?
H
AWANI KUMAR UPADHYAYv. HON'BLE HIGH COURT OF 419
  JUDICATURE AT ALLAHABAD [P. SATHASIVAM , J.]
     3. The case. of the appellant, in brief, is as under:           A

     a) The appellant, who is a Member of the U.P. Higher
Judicial Service, is posted as Additional District and Sessions
Judge, Moradaba~ and, according to him, he is having
unblemished service career and has successfully completed 30         B
years of service.

     b) The High Court, while allowing the Second Appeal No.
1444 of 2000 titled U.P. Avas Evam Vikas Parishad, Lucknow
and Another vs. Lajja Ram, passed severe strictures against
the appellant herein in the judgment which, according to him,        C
are ultimately going to affect permanently not only his reputation
but also his entire service career.

     c) It is the claim of the appellant that in the Second Appeal
No. 1444 of 2000, he has not rendered any judgment as trial          D
Court Judge or as the first Appellate Court Judge. According
to him, a suit bearing No. 418 of 1997 was filed by Shri Lalla
Ram against the U.P. Avas Evam Vikas Parishad, Lucknow
and another and the said suit was decided by one learned Civil
Judge, Senior Division, Ghaziabad presided over by Shri              E
Chaturbhuj by a judgment and order dated 02.05.1997.
Aggrieved by the said judgment, a first appeal was filed being
First Appeal No. 105 of 1997 in the Court of Shri A.K.
Aggarwal, second Additional Dist. & Sessions Jud,ge,
Ghaziabad. The first Appellate Court framed 12 additional
                                                                     F
issues and on those additional issues, the matter was
remanded to the Court of the appellant as he was working as
Civil Judge, Senior Division, Ghaziabad. Thereafter, in
compliance with the order of the first Appellate Court, after
recording the evidence of the parties, the appellant recorded
the evidence of the parties and gave his findings on                 G
31.05.1999.

    d) It is the case of the appellant that in the impugned
judgment and order, the High Court has neither furnished any
independent finding on the issues which were determined by           H
    420       SUPREME COURT REPORTS                  [2013] 3 S.C.R.


A the appellant herein nor anything about his ultimate decision.
  The present appeal is confined only to the portion wherein the
  High Court has made certain strictures. The appellant has also
  asserted that the High Court has not considered that the
  appellant has not rendered any decision as trial Judge or as
B the Judge of the first Appellate Court. On the direction by the
  first Appellate Court, only 12 additional issues were adjudicated
  by the appellant. Inasmuch as "severe strictures", if allowed to
  stand, would affect his entire future prospects of service, he
  approached this Court by filing this appeal by way of special
c leave.
       e) While answering the substantial questions of law,
  namely, 3, 4, 5 and 6, the High Court decided the same in
  favour of the appellants therein and against the respondents.
  Ultimately, both the second appeals were allowed with
D exemplary cost of Rs. 5 Lakhs in Second Appeal No. 1444 of
  2000 and Rs. 1 Lakh in Second Appeal No. 1445 of 2000. The
  High Court ultimately set aside the decrees passed by the
  courts below and dismissed both the suits. The High Court also
  directed that a FIR be lodged immediately against the plaintiffs
E for malicious prosecution and manipulation in the official
  records. After issuing such directions the High Court passed
  the following order, with which we are concerned in these
  appeals:

F         "Severe stricture is passed against the Judge of thetrial
          Court as well as of lower appellate Court for passing
          extremely illegal and unjust judgments and decrees. A copy
          of this judgment shall be placed intheir service records and
          be also sent to Hon'ble the Chief Justice to consider as
          to whether disciplinary proceedings are warranted against
G
          them."

       f) On coming to know of the strictures and the ultimate
  direction of the High Court, the appellant filed a Civil Misc.
  Modification Application No. 122702 of 2012 in Second Appeal
H No. 1444 of 2000 for expunging the remarks made in the
 AWANI KUMAR UPADHYAYv. HON'BLE HIGH COURT 421
 OF JUDICATURE AT ALLAHABAD [P. SATHASIVAM , J.]

judgment dated 01.03.2012. The High Court, after hearing the           A
counsel for the judicial officer without modifying the judgment,
observed that "/ did not intend to make any suggestion for
initiating disciplinary proceedings against the Judge who had
decided the remitted issues only", and by saying so disposed
of the said application, however, permitted the appellant to           B
make representation on the administrative side of the High
Court. Not satisfied with the same, the appellant has filed the
above appeal for a limited purpose of expunging those advE!rse
remarks.

     4. Heard Mr. Harshvir Pratap Sharma, learned counsel for          C
the appellant and Mr Ravi Prakash Mehrotra, learned.counsel
for the Registrar General, High Court of Allahabad. In the
present appeals, the other parties have been shown only as
proforma respondents.
                                                                       D
     5. The questions which arise for consideration are:

      (a)   Whether in the facts and circumstances of the case,
            the High Court was justified in making severe
            strictures and directions against the appellant in its     E
            judgment dated 01.03.2012?

      (b)   Whether the direction to send the impugned
            judgment to Hon'ble Chief Justice of the High Court
            with a request to consider whether disciplinary
            proceedings are warranted against the appellant            F
            herein was justified?

      (c)   Whether the High Court is justified in disposing of
            the application for modification without expunging
            the offending portion which was made without               G
            affording opportunity to the appellant?

    6. It is settled legal position that no adverse remark can ·
be made against any judicial officer without giving an
opportunity to explain the conduct. It is useful to refer a decision
                                                                       H
    422    SUPREME COURT REPORTS                 [2013] 3 S.C.R.

A of this Court in Parkash Singh Teji vs. Northern India Goods
  Transport Company Private Limited and Another, (2009) 12
  sec 577 which is identical to the case on hand. In the above
  decision, the directions of the High Court in its order dated
  06.07.2006 reads as under:
B
       "Before parting, we wish to make it clear that the
       learnedJudge who passed the impugned judgment and
     • decree need be careful in future, rather than adopting a
       hasty.slipshod and perfunctory approach as is manifest
       from thejudgment delivered by him in this case. We further
c      direct that a copy of this order shall be placed on the
          personal/service record of the officer, while another
        copybe placed before the Hon'ble Inspecting Judge of the
       officer for His Lordship's perusal."

D According to the appellant, by making such remarks and that
  too behind his back, are not warranted. Here again, after
  adverting to the earlier decisions and principles enunciated
  therein, this Court expunged the offending remarks made
  against the appellant and allowed the appeal filed by him.
E
       7. Apart from the above decision, in an identical
  circumstance, this Court has expunged adverse remarks made
  against a judicial officer in Amar Pal Singh vs. State of Uttar
  Pradesh and Another, (2012) 6 SCC 491. The appellant
F therein, a judicial officer, being aggrieved by the comments and
  observations passed by the learned Single Judge of the High
  Court of Judicature of Allahabad in Sunil Solanki vs. State of
  U.P. (Criminal Revision No. 1541 of 2007, order dated
  31.05.2007) has preferred an appeal before this Court. In this
  case, one Sunil Solanki had filed an application under Section
G 156(3) of the Code of Criminal Procedure, 1973 before the
  CJM, Bulandshahar with the allegation that on 11.02.2007 at
  9.30 p.m. when he was . standing outside the front door of his
  house along with some others, a marriage procession passed
  from in front of the door of his house and at that juncture, one
H Mauzzim Ali accosted him and eventually fired at him from his
 AWANI KUMAR UPADHYAY v. HON'BLE HIGH COURT                   423
 OF JUDICATURE AT ALLAHABAD [P. SATHASIVAM , J.]

country-made pistol which caused injuries in the abdomen area . A
of Shafeeque, one of his friends. However, he escaped unhurt. ·
Because of the said occurrence, Sunil Solanki endeavoured
hard to get the FIR registered at the police station concerned
but the entire effort became an exercise in futility as a
consequence of which he was compelled to knock ~t the doors · B
of the learned CJM by filing an application under Section 156(3)
of the Code for issuance of a direction to the police to register
an FIR and investigate the matter. While dealing with the
application, the Chief Judicial Magistrate, the appellant in that
appeal, ascribed certain reasons and dismissed the same.              c
     8. Being dissatisfied, the appellant therein preferred a
revision before the High Court and the learned Single Judge,
taking note of the allegations made in the application, found that
it was a fit case where the learned Magistrate should . have
directed the registration of FIR and investigation into the alleged   D
offences. While recording such a conclusion, the learned single
Judge has made certain observations which are reproduced
below:

     "This conduct of the Chief Judicial Magistrate is                E
     deplorableand wholly mala fide and illegal."

Thereafter, the learned single Judge treated the order to be
wholly hypothetical and commented it was:

     "Vexatiously illegal."                                           F
After stating so the learned single Judge further stated that the
Chief Judicial Magistrate has committed a blatant error of law.
Thereafter, he further commented:

     " ... and has done unpardonable injustice to the injured         G
     andthe informant. His lack of sensitivity and utter callous
     attitude has left the accused of murderous assault to
     goscot-free to this day".

     9. After making the aforesaid observations, the learned          H
    424      SUPREME COURT REPORTS                  [2013] 3 S.C.R.


A Single Judge set aside the order and remitted the matter to the
  Chief Judicial Magistrate to decide the application afresh in
  accordance with law. Thereafter, he directed as follows:

      "Let a copy of this order be sent to the
B AdministrativeJudge, Bulandshahar to take appropriate action
  against theCJM concerned as he deems fit."

       10. Aggrieved by the said direction, the appellant therein
  approached this Court by way of a special leave petition to
  delete the aforesaid comments, observations and the ultimate
C direction.

        11. After referring all the various earlier decisions of this
  Court on this point expunged the remarks and set aside the said
  observation/comments and the direction made against the
0 judicial officer. This Court also directed that if the said remarks
  have been entered into the annual confidential roll of the judicial
  officer, the same shall stand expunged and also marked a copy
  of the judgment to the Registrar General of the High Court,
  Allahabad to be placed on the personal file of the judicial officer
E concerned.
        12. It is made clear that we are not undermining the ultimate
  decision of the High Court on merits. However, we are
  constrained to observe that the higher courts every day come
  across orders of the lower courts which are not justified either
F in law or in fact and modify them or set them aside. Our legal
  system acknowledges the fallibility of the Judges, hence it
  provides appeals and revisions. Inasmuch as the lower judicial
  officers mostly work under a charged atmosphere and are
  constantly under psychological pressure and they do not have
G the facilities which are available in the higher courts, we are of
  the view that the remarks/observations and strictures are to be
  avoided particularly if the officer has no occasion to put-forth
  his reasonings. Further, if the passage complained of is wholly
  irrelevant and unjustifiable and its retention on the records will
H cause serious harm to the persons to whom it refers and its
 AWANI KUMAR UPADHYAY v. HON'BLE HIGH COURT OF 425
   JUDICATURE AT ALLAHABAD [P. SATHASIVAM , J.]

 expunction will not affect the reasons for the judgment or order,      A
 request for expunging those remarks are to be allowed. We,
 once again, reiterate that harsh or disparaging remarks are not
 to be made against judicial officers and authorities whose
 conduct comes into consideration before courts of law unless
 it is really for the decision of the case as an integral part          B
 thereof.

      13. We hold that the adverse remarks made against the
  appellant were neither justified nor called for. The perusal of the
  impugned judgment would show that the word "severe
  strictures" is mentioned whereas no logical reasoning has             C
    been given as to what is the fault of the appellant and the High
  Court has not adduced any finding as to why it has disagreed
  with the reasoning given by the appellant particularly when the
  appellant asserted that neither he has rendered any decision
  as trial Court Judge nor as the first Appellate Court Judge           D
  except deciding 12 additional issues on the directions issued
  by his predecessor. The strictures passed against the appellant
. are neither warranted nor is in conformity with the settled law
  as propounded by this Court.
                                                                        E
      14. Under these circumstances, the adverse remarks
 passed in the impugned judgment and the final orders dated
 01.03.2012 and 23.04.2012 insofar as the appellant is
 concerned are set aside. Since these appeals are confined
 only for expunging the strictures, the same are allowed as             F
 pointed above. No co~ts.

 K.K.T.                                          Appeals allowed.