Delhi High Court
Syed Ahmed Bhukhari vs State And Anr. on 1 September, 1997
Equivalent citations: 1997VIAD(DELHI)287, 1997(4)CRIMES204, 69(1997)DLT525, 1998RLR119
Author: Dalveer Bhandari
Bench: Arun Kumar, Dalveer Bhandari
JUDGMENT Dalveer Bhandari, J.
(1) On 6.12.1992, the Babri Mosque in Ayodhya was demolished. It is alleged that thereafter Shri Syed Ahmed Bukhari, Naib Imarn, Jama Masjid had given an inflammatory speech in which he criticised the Government and the Prime Minister. The speech was really meant to arouse the sentiments of the minority community. On the basis of the said inflammatory speech, an Fir No. 98 of 1993 under Section 124A of the Indian Penal Code was registered against Shri Syed Ahmed Bukhari in Police Station, Jama Masjid, Delhi.
(2) The arrest of the petitioner could not be made because of the possible apprehension of the problem of law and order following his arrest. The petitioner was and continues to be a leader,of the minority community. Summons could not be served on the petitioner. On 13.1.1995 the petitioner did not appear and bailable warrants were issued against him. The petitioner sought cancellation of bailable warrants issued against him. The bailable warrants were not cancelled and because of his non-appearance, the non-bailable warrants were issued against him for 1.6.1995. Again on 1.6.1995, the non-bailable warrants were received with the report that the petitioner was out of station. The learned Metropolitan Magistrate dealing with the case passed a detailed order on 29.2.1996. It is alleged that the Metropolitan Magistrate had passed some unwarranted and unjustified remarks against the petitioner Shri Syed Ahmed Bukhari. The Metropolitan Magistrate has also made general comments and remarks about the Legislature, Executive, and the functioning of the Police in this country.
(3) The learned Metropolitan Magistrate had directed the Commissioner of Police to execute the non-bailable warrants against the petitioner personally.
(4) The petitioner had filed a writ petition before this Court in which he has prayed that the Fir No. 98/93 dated 14.5.1993, Police Station, Jama Masjid, registered against the petitioner be quashed. He has further prayed that the order dated 29.2.1996 passed by the learned Metropolitan Magistrate be also quashed.
(5) The writ petition came up for preliminary hearing before the Division Bench of this Court. The Division Bench while issuing notice in the writ petition passed the following order; "The order under challenge, instead of dealing with the specific issue before the learned Magistrate, contains several observations not only against the police but also in respect of certain religious matters. Prima fade, it appears to us that the observations - nay a long lecture given by the learned Magistrate - were absolutely uncalled for. One of the basic tenets of our jurisprudence is that "Justice must not only be done but also must be seen to be done". By making the uncalled for observations the learned Magistrate has made his order vulnerable. Therefore, we are not at the moment going into the merits of the ultimate directions given by him, but we are on the manner in which the order has been pronounced and the likely prejudice these observations may cause to public at large or public order. It is coming to the notice of this Court in several matters that officers of subordinate judiciary, instead of addressing themselves to the sole legal or factual issues arising in the cases before them, are unnecessarily indulging in making observations regarding matters which do not arise in the case. It has, therefore, become necessary to lay down certain guidelines in this behalf. We would, therefore, like to examine the question of expunging various remarks in the judgment, and pending further orders there will be an interim stay of the execution of the warrant and further proceedings in case Fir No. 98 /1993, P.S. Jama Masjid, pending in the Court of Shri Vinod Kumar Sharnna, Metropolitan Magistrate, Delhi, Dasti."
(6) It may be pertinent to mention that admittedly, later on the Fir was withdrawn. Therefore, the petitioner's main grievance regarding issuance of the bailable or/and non-bailable warrants does not survive any longer. The Division Bench in its order dated 6.3.1996, envisaged that certain guidelines ought to be laid down in this behalf because, they felt that the learned Magistrate instead of dealing with the specific issue before him indulged in the exercise of making several uncalled for observations not only against the Police but against religious matters. The Division Bench deemed it imperative to lay down certain guidelines perhaps, because of late, a large number of similar orders have come to the notice of this Court.
(7) In this order, our endeavour would be to evaluate and examine whether the learned Metropolitan Magistrate was justified in making the observations and comments regarding the petitioner and the Police and other institutions such as the Executive, and the Legislature? If so, to what extentare these remarks justified? Some of the observations of the learned Metropolitan Magistrate regarding the Police are set out as under: "It is he time to the Police to realise that they are governed by the sacred Constitution of India and not by any dictate of religion and sect and dictates of a particular individual. They are bound by the oath they undertook to the Constitution to abide by it. Violation of such oath on such ridiculous ground shows that they are not bound by the rule of law. It reminds me the conservative feeling of a common man that every action and inaction of the Police has some motives."
(8) The Court also observed as under : "No sincere efforts have been made by the police" to produce the accused in the Court. Their inaction itself appears to be based on some motive, it is strange that an ordinary criminal of a petty offence like, keeping a knife in his possession, keeping 5/6 country made liquor bottles in his possession, keeping property worth of few rupees without any ownership are arrested at the spot by the police but a person who is using the place of worship for giving inflammatory speech and has made an at attempt of sedition to overthrow the Government established by law, the offence which is punishable upto life imprisonment, has not even been arrested."
(9) Regarding the conduct of the Police, the Court made further observations in para 18 of the order. The relevant portion of para 18 of the order reads as under: "From the entire conduct of the police right from investigation stage upto the inquiry stage in the Court it appears that police officials have not fulfillled their legal and constitutional obligations. They have flouted all legal, and constitutional norms. They have also violated the oath undertaken by them to abide by the Constitution. It appears that police has not come out of the image the general public has about them. The conduct of the police official reminds me as if they are still living in the British Raj where the rule of law was flouted under the dictates of fanciful rulers. It appears that Executing Agency is defunct with motives. The conduct of the police shows that they applied different law to the different class of people. A small and petty criminal is arrested at the spot for a petty offence and he is denied bail even in bailable offences by the police who is nowhere threat to the democratic policy or to the society at large. Here the police has applied different law to the accused challaned. During the entire investigation he was not arrested by the police despite the fact that offence is punishable upto life imprisonment and if it is against the Government established by law. The matter did not end here. Police is still hobnobbing with the accused. They are not obeying the command of the Court to arrest the accused. They are trying their best to shelter the accused and take him out from the clutches of law."
(10) The learned Metropolitan Magistrate has not made comments regarding individual police officers after finding them guilty of dereliction of duty. The general observation regarding functioning of the Police and dereliction of duty is totally unwarranted, uncalled for, and unjustified. The learned Metropolitan Magistrate is perhaps not correct when he says that the Police officials have to take oath like other constitutional functionaries.
(11) It was also wholly unwarranted for the Metropolitan Magistrate to observe that the "Police is still living in British Raj', where the rule of law was flouted under the dictate of the fanciful rulers." The Metropolitan Magistrate made wholly unwarranted and unjustified observations. There is no basis even for the observations "that the Executive Agency is defunct with motives." There is no material on record to arrive at the conclusion that the Police was hobnobbing with the accused and they were sheltering the accused and were trying their best to take out the accused from the clutches of law.
(12) In para Ii of the judgment, the learned Metropolitan Magistrate has observed as under: "The in activism with motive of the executive is peril to Indian democracy."
13. The learned Metropolitan Magistrate also observed that two organs of the Government - "Legislature and Executive, have become inactive."
(14) The learned Metropolitan Magistrate was perhaps, justified in giving directions to the Police Commissioner to execute the non-bailable warrants when bailable and non-bailable warrants were not served against the petitioner in ordinary course. But the Metropolitan Magistrate was certainly not justified in making such sweeping remarks and generalisations regarding the Legislature, Executive and the Police. The learned Magistrate was also not justified in making the general remarks against the petitioner in which he had mentioned that " giving an inflammatory speech, the petitioner had made an attempt of sedition to overthrow the Govemment.''There is nomaterial on record justifying this remark against the petitioner."
(15) Another important feature of judgment/order is that the Judges should avoid sweeping generalisation because it is never necessary to make such generalisations.
(16) The Supreme Court in The State of Uttar Pradesh v. Mohammad Nairn, , observed as under: "In expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair-play and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made."
(17) It is also a cardinal principle that the Court must be quite reluctant in making disparaging remarks but if it becomes imperative in the facts and circumstances of any case, then the Court may take into consideration the following factors: (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; and (e) whether it is necessary for the decision of the case, as an integral part thereof, to advert on that conduct.
(18) It has also been recognised that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation, reserve and judicial restraint.
(18) In the famous case ofL. Ban-wan Lalv. Kundan Cloth Mills Ltd., Air 1937 Lahore 527, Skemp, J. observed that reflections on the conduct of the party should also be in sober language. The Court observed as under ; "In maybe necessary for a Judge or a Magistrate to pass reflections upon the conduct or honesty of a party or the truthfulness of a witness; when this is necessary that should be done in sober and becoming language. It is never necessary to make remarks about a whole class of society who are not before the Court."
(20) Judicial officers must bear in mind that it is hardly necessary for them to make remarks about class of society such as Parliament, Executive, Legislature or Judiciary as a whole. In any case, disparaging remarks which are not warranted by evidence or material on record should never be made.
(21) The Court should be extremely careful and cautious before making general comments and observations regarding highly sensitive, religious and communal matters which have the potentialities of arousing the public sentiments.
(22) The Supreme Court in State of M.P. v. Nandlal Jaiswal, , observed: "Judges should not use strong and carping language while criticising the conduct of parties or 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 maybe mistaken and unjustified and if so they may do considerable harm and mischief and result in injustice."
(23) It may be pertinent to set out the observations of the Supreme Court in A.B. Mathur v. Promod Kr. Gupta; : "It was a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons of authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case" to animadvert on their conduct."
(24) We are attempting to reiterate and restate some of the basic features and aspects which should be borne in mind by the judicial officers, while framing or constructing the judgment and orders. I. No exact instructions could be given as to how the judgment/order is to beprepared. A judgment is the expression of the opinion of a Judge or Magistrate arrived at after due consideration of the evidence and of the arguments, if any, advanced before him. There are no rules, norms or style of universal application for writing or framing of judgments. Section 2(9) of the Code of Civil Procedure defines a judgment as (a) 'statement given by the Judge on the grounds of a decree or order'. The Criminal Procedure Code does not define a judgment. In Halsbury's Laws of England the expression has been understood to mean an order in a trial, terminating in the conviction or the acquittal of the accused and this interpretation has been accepted by the Indian Courts. II. Every Judge or Judicial Officer has his own style of writing judgments. They have to express themselves about the cases which come up for decisions before them in their own style. Cases which come up for decision in different Courts are also of such various types and have so many peculiarities of their own, that it is almost impossible to lay down how and in what manner the Judge or the Magistrate should express himself. Some of the basic features and characteristics of the judgment which the Judicial Officers should bear in mind are briefly set out as under. III. The judgment should ordinarily contain following elements : (a) statement of facts, (b) points in dispute, (e) findings on points in dispute on the basis of evidence and documents, and (d) reasons for granting or refusing order/relief. IV. Emotion has no place in a judgment which has to be based on facts as presented by the parties in the evidence, oral or documentary. Anything which directly or indirectly aggravates the emotion definitely induces an element of perversity. V.The Court should abstain from brash or ungenerous criticism of measures taken in good faith by those who bear the responsibility of the Government. VI. A judgment must be calm and balanced and neither it should show prejudice nor sympathy. There should never be any display of emotions or sentiments in the judgment. A Judge neither rewards virtue nor chastises vice. He only administers even-handed justice between man and man and between a citizen and the State. This cardinal principle should always be remembered while constructing a judgment or the order. VII. Ordinarily, the quality of judgment depends upon the quality of arguments addressed but an incomplete or inartistic argument of a Lawyer is not an excuse for producing an unsatisfactory judgment. Judges have moral and legal duties and obligations to make up for the shortcomings of the Counsel who might have argued before them. VIII. Judicial Officers should bear in mind that sheer length of judgment or its physical weight is not the index of its quality. The quality depends on the presentation of facts, discussion of the issues of both fact and law and the quality of the reasons. IX. Judicial Officers must make endeavour to render justice within with bounds and framework of law. X. The personal philosophy and personal predilection should not be pronounced in the judgment. Judicial Officers should not bear the label of pro-landlord or pro-tenant, or pro-revenue or anti-revenue, proin dividual right as against community interests, pro labour or pro- management, etc. etc. The Judicial Officers are human beings and their family background, education or environment may find reflection in their decision making process. But over a period, the Judge must detach himself from these fixations and decide cases strictly in accordance with law, equity and the justice. XI. Judicial Officers should avoid high flown language and use simple language. The judgments are basic allymeant to be read and understood by laymen, not by scholars. XII. Judicial Officers should not acquire joumalistic zeal or writ something special of the Press. XIII. In the judgment law and facts should not be mixed. Facts propounded on the basis of law should be separately and clearly stated. The language should be simple and direct and free from metaphors as far as possible. XIV. Judicial Officers should state facts of the case correctly and systematically and special efforts should be made regarding coherence, precision and clarity of expression in their judgments. XV. Judicial Officers should not make sweep .g remarks of general nature about any dass of people - women, lawyers, politicians, business- men, landlords, tenants, doctors, money-lenders, policemen, etc. etc. XVI. Judgment should not be prolix or verbose. The prolix judgment is a torture to write and a torture to read. There should be no repetition of ideas or expressions. The aim should be to say everything that requires to be said concisely and precisely but without over-looking that brevity should not tend to obscurity. XVII. The pen of the Judge should be just like the knife of a surgeon which probes into the flesh only as much as is absolutely necessary for the purpose of the case before it. Disparaging remarks which are not warranted by evidence against a person should never be made. XVIII. A judgment should not be based on conjectures and surmises or personal knowledge. It should be based on proper appreciation of evidence on record. XIX. Judicial officers should bear in mind that the quality of the judgment depends upon the soundness of the reasons on which it is founded. A litigant must know how his case has been dealt with and in what manner the submissions in support of his case have been considered. The least that can be expected of a judgment is that it should disclose to the party why the decision is going against him. XX. Judicial Officers should not comment on the legislative policy and show their approval or disapproval. It is not the function of judiciary much less the purpose of a judgment. XXI. Judicial Officers must make serious endeavour to deliver judgment promptly. XXII. Generally speaking, this is also the cardinal principle of constructing any judgment or order that it is always desirable to express oneself only to the extent it is necessary. If this principle is strictly followed, then, the Court is not likely to deviate from the settled principles and well known parameters of constructing of a judgment. XXIII. "The language of the judgment should be sober, dignified, restrained and temperate and in no case satirical or factious. Judicial Officers should see that their pronouncements are judicial in nature and do not normally depart from sobriety, moderation and reserve. "They should refrain from being sarcastic in their judgments. They should try to avoid expressions which may attract a comment that the Judge had either made up his mind even before he initiated proceedings or had identified himself with a case to an extent that he was unable to appreciate the case or weigh the evidence before him impartially and without any bias. XXIV. Personal sentiments and personal views regarding religions, institutions, and political parties be avoided. The Court must be very careful before making remarks which gravely affect the honesty, reputation and good name of the witness or any individual. In any case, it is not fair to make any remarks based on conjectures and surmises. XXV. Judicial Officers must totally refrain from making any unwarranted and uncalled for observations or personal comments against their colleagues or other Judicial Officers. This tendency does not merely undermine the judicial system but demolishes the very framework of judicial system.
(25) The Judges and judicial Officers must have full freedom and independence so that they can freely and fearlessly discharge their duties. The aforesaid caution, restraint, discipline and circumspection in constructing judgments is in no way going to curtail their independence and freedom of expression.
(26) If we apply the aforesaid well settled principles of formulating the judgments and orders containing its basic features, then the conclusion becomes irresistible that the learned Metropolitan Magistrate has made uncalled for and unjustified remarks which have been set out from his order against the petitioner and the institutions like the Executive,the Legislature and the Police. There marks were totally uncalled for, unwarranted and unjustified. These remarks are accordingly expunged and this petition is disposed of.