Madras High Court
K. Dakshinamoorthy vs M/S. Regency Ceramic Ltd., Yanam & 3 ... on 8 June, 2001
Author: M. Karpagavinayagam
Bench: M. Karpagavinayagam
ORDER
1. Dakshinamoorthy, the petitioner in both these applications has filed these to call for the records relating to C.A.Nos.51 of 1997 and 52 of 1997 on the file of the III Additional Sessions Judge, Pondicherry, and expunge the adverse remarks made therein against the petitioner.
2. The facts in brief are as follows:-"The petitioner was the Sub Divisional Judicial Magistrate at Yanam. The first respondent, the complainant filed two complaints in S.T.R.Nos.12 of 1995 and 124 of 1995 against the other respondents under Section 138 of the Negotiable Instruments Act. The petitioner, after trial, convicted the accused, the respondents 2 and 3 in Crl.O.P.No.6209 of 1999 and the respondents 2 to 4 in Crl.O.P.No. 6210 of 1999, by the judgments dated 9.10.1997 in both the complaints. Against the said judgments, the accused persons filed appeals in C.A.Nos.53 of 1997 and 52 of 1997 before the appellate Court. The III Additional Sessions Judge, Pondicherry allowed both the appeals and acquitted the accused. While so the learned III Additional Sessions Judge, pondieherry passed certain adverse remarks against the petitioner. The relevant adverse remarks in the judgments are as follows:-
"The way in which the lower Court rendered finding against the accused, after committing the above lapses and sentenced them for the said charges would prove that it had given a holiday for judicial conscience and the disposal of the case should not be in the normal circumstances but otherwise".
According to the petitioner, this observation making adverse remarks against the petitioner is uncharitable and unfounded. Under those circumstances, these petitions have been filed under Secfion 482 Cr.P.C. for expunging the said remarks."
3. The learned counsel for the petitioner would submit that the learned III Additional Sessions Judge, Pondicherry could have refrained from passing such remarks, since they were uncalled for and not necessary for deciding the said appeals. The learned counsel to substantiate his plea would cite Raghubir Saran v. State of Bihar, , State of U.P. v. Mohd Naim, , S.K. Viswambaram v. E. Koyakunju, , Manish Dixit v. State of Rajasthan, 2000 AIR SCW 3914, In the matter of : 'K' Judicial Officer, 2000 (2) Supreme 80, In re Ramaswami, AIR 1958 Mad.305, Emperor v. Juman Sajan, AIR 1947 Sind 66, S.N. Vyas v. State of Rajasthan, AIR 1966 Raj. 164, S. Lal Singh v. State, , B.S. Dewan v. State of Andhra, AIR 1958 A.P.70, State v. Mustaq Hussain, .
4. The Government Advocate has been asked to assist the Court to decide the question posed before this Court. He would cite the authorities, namely, M.L. Ahuja v. State of Himachal Pradesh, 1975 Crt.L.J. 330 A.M. Thiruvengadam v. State, 1975 Crl.L.J. 1468, Advocate General of Bihar v. High Court of Judicature at Patna, A.I.R. 1986 S.C. 1080 State of Uttar Pradesh v. Mohd. Nairn, , Jage Ram v. Ham Raj, Vinod Kumar Jain v. J. Pharma, 1986 Crl.L.J. 884 State of Mysore v. M,N, Vasantha Kumar, 1969 Crl.L.J. 1299 and K.P.R. Meiton v. State of Kerala, 1980 Crl.L.J. 1073
5. The guidelines and instructions given by this Court, as well as the Supreme Court which are so important, while passing remarks against the subordinate Judicial Officer and while invoking the powers under Section 482 Cr.P.C. to expunge those remarks, as referred to in the above judgments, are given below:
(1) The Courts do have power to express opinion, make observations and offer criticism on the conduct of anyone coming within their gaze of judicial view, but the question is one of impelling need, justification and propriety.
(2) A Judge entrusted with the task of administering justice should be bold and feel fearless while acting judicially and giving expression to his views and constructing his judgment or order. However, sobriety, cool, claim and poise should be reflected in every action and expression of a Judge.
(3) Though the power to make remarks or observations is there but the exercise of power must withstand judicial scrutiny on the touchstone of following tests:
(a) Whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself;
(b) Whether there is evidence on record bearing on that conduct justifying the remarks;
(c) Whether it is necessary for the decision of the case, as an integral part of the said decision. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve.
(4) Any passage from an order or judgment may be expunged subject to satisfying the following tests:
(i) that the passage complained of is wholly irrelevant and unjustifiable;
(ii) that its retention on records will cause serious harm to the persons to whom it refers;
(iii) that its expunction will not affect the reasons for the-judgment or order.
(5) A duty is cast upon the Judicial Officer not to deflect himself from the even course of justice by making undeserving remarks on persons. Moderation in expression lends dignity to his office and imparts greater respect for judiciary. Such remarks may affect the reputation or even the career of such person. In such a case, the High Court in a suitable case shall under inherent power to expunge those remarks if they are considered to be irrelevant.
6. On going through the judgments rendered by both the Courts below, in the light of the above guidelines, I am of the view that the observation as referred to above would not be relevant, for deciding the appeals. Further more, it is noticed that the trial Court has taken a view in the light of the materials constituting Section 138 of the Negotiable Instruments Act that offence is proved. On the other hand, the appellate Court has taken a contrary view that offence is not proved. Thus, the divergent views have been expressed by the different judicial forums. Under those circumstances, the appellate Court should have decided the appeals and acquitted the accused on the basis of its own reasoning that the materials available on record would not be sufficient to base conviction.
7. The appellate Court would instead observe that the reasonings rendered by the trial Court for convicting the accused are perverse. That apart, the learned III Additional Sessions Judge, Pondicherry passed strictures against the petitioner, who was the subordinate Judicial Officer, stating that the trial Court had given a holiday for judicial conscience and the disposal of the case should not be in the normal circumstances but otherwise".
8. This observation, in my opinion, is not only irrelevant but also there is no basis for making these remarks. The learned appellate Judge for passing these remarks, has taken support of the observation made by the in Somu Thevar v. Sivakumar and another, .
9. It is true that such an observation was made in the said judgment, since this Court had come across several judgments of the particular Judicial Officer, which uniformly reflect his non-application of mind. The judgment mentioned above was given on the basis of the judgment of the Division Bench of this Court, which expressed the anguish over (he non-consideration of the relevant materials and the acquittal of an accused in a brutal daylight murder case. The said judgment would not apply to the present case at all.
10. As indicated above, in the judgments rendered by the petitioner convicting the accused, it cannot at all be said mat the material evidence has been overlooked. Similarly, the reasoning given by the trial Court cannot be said to be perverse. At the same time, conclusion arrived at by the appellate Court for acquitting the accused cannot also be said as wrong, since different view may be possible.
11. Moreover, the judgments rendered by the (rial Court were considered in the appeal by the III Additional Sessions Judge, Pondicherry only for the first time. In such a situation, I am of the opinion that the said remarks ought not to have been made by the learned III Additional Sessions Judge, Pondicherry against the trial Court.
12. In view of the discussion made above, the remarks made by the appellate Court against the trial Court in paragraph 33 and paragraph 34 of S.T.C. Nos.12 of 1995 and 124 of 1995 respectively are not only irrelevant but also separable, since the said paragraphs are not integral part of the judgments. In other words, the expunction of those remarks in the said paragraphs would not affect the conclusion arrived at by the appellate Court with regard to the merits of the case. Accordingly, the petitions are allowed and the said remarks in paragraphs 33 and 34 are expunged.
13. However, this expunction would not affect the conclusion arrived at by the Department against the petitioner, the delinquent Judicial Officer, in respect of the other charges. The appellate Judge concerned shall avoid this sort of criticism against the subordinate Judicial Officers in the future so as to ensure our judicial restraint.