Supreme Court of India
Sonu Agnihotri vs Chandra Shekhar on 22 November, 2024
Author: Abhay S. Oka
Bench: Abhay S. Oka
2024 INSC 888
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 388-389 OF 2024
SONU AGNIHOTRI …APPELLANT
VERSUS
CHANDRA SHEKHAR & ORS. …RESPONDENTS
JUDGMENT
ABHAY S. OKA, J.
1. The appellant is serving as an Additional District and
Sessions Judge in Delhi judicial service. The appellant has
preferred these appeals for expunging adverse
findings/remarks recorded against him in paragraphs 13
and 14 of the first impugned order dated 2nd March 2023
by the Delhi High Court. The appellant moved an
application before the Delhi High Court for expunging the
remarks in paragraphs 11 to 14 of the first impugned order
dated 2nd March 2023. By an order dated 9th May 2023,
Signature Not Verified
the said application was rejected by the High Court. This
Digitally signed by
ASHISH KONDLE
is the second impugned order.
Date: 2024.11.22
17:17:31 IST
Reason:
Criminal Appeal No. 388-389 of 2024 Page 1 of 21
FACTUAL ASPECTS
2. The appellant was dealing with an application for
anticipatory bail filed by one Vikas Gulati @ Vicky in FIR
No.221/2022 registered for the offences punishable under
Sections 380 and 411 read with Section 34 of the Indian
Penal Code (for short, ‘the IPC’) with Defence Colony Police
Station. The appellant had earlier rejected another
application for anticipatory bail made by co-accused
Sunita and Raj Bala on 2nd January 2023. The anticipatory
bail application of Vikas Gulati came up before the
appellant on 21st January 2023. By a detailed order, the
appellant rejected the said application. While rejecting the
application, the appellant made certain adverse
observations about the conduct of the police officers and
issued certain directions. The following are the
observations made by the appellant in the order:
“ Perusal of police file shows that after
case diary of 23.12.2022, the next day on
which case diary was written by IO is of
date 04.01.2023. IO has not written any
case diary for date 02.01.2023 on which
date, anticipatory bail applications of co-
accused Sunita and Raj Bala were
dismissed. IO has written in case diary of
04.01.2023 that notices U/sec 41 A Cr. P.
C were issued to co-accused Sunita and
Raj Bala and all this was apprised to SHO
PS Defence Colony.
Criminal Appeal No. 388-389 of 2024 Page 2 of 21
It is surprising that despite opposing
anticipatory bail applications of co-
accused Sunita and Raj Bala and
submitting before court that their custody
is required for recovery of stolen sarees, IO
instead of arresting them made them join
investigation after serving notices U/sec
41A Cr. P. C. There was no need to oppose
anticipatory bail applications of co-
accused Sunita and Raj Bala in case, their
custody was not required by IO. When
police has opposed anticipatory bail
applications of co-accused Sunita and Raj
Bala before court but made them join
investigation by serving notice U/sec 41A
Cr. P.C, it appears that there is
something fishy on part of police.
…………………………………………………..”
(emphasis added)
After making the above observations, the appellant dealt
with the merits of the bail application and concluded that
the accused before him was not entitled to the relief of
anticipatory bail. Thereafter, the appellant observed thus:
“From conduct of IO, it appears that he is
not carrying out investigation in a
proper manner and there is something
more written on wall than visible.”
(emphasis added)
3. The appellant observed that despite so many orders
passed by the court, the updated status of cases pending
Criminal Appeal No. 388-389 of 2024 Page 3 of 21
against the accused had not been mentioned in the
previous involvement report of the accused filed, along
with a reply to the anticipatory bail application.
Thereafter, the appellant issued the following directions:
“ Issue show cause notice to SHO PS
Defence Colony and IO HC Raj Kumar
U/sec 177 IPC for furnishing false
information to this court through DCP,
South for 31.01.2023.
Let copy of order be sent to DCP,
South to inquire about role of IO as well
as SHO PS Defence Colony in
investigation of present case in view of
observations of this court as have come
in this order with direction to file
Action Taken Report against the erring
officials and file report in this regard
before this court on 31.01.2023.
Let explanation be sought from CP,
Delhi as to why SCRB record is not being
updated till date despite direction of this
court way back about one and half years
ago in FIR No. 16/2018, PS Govind Puri
for 31.01.2023 with direction to fix
responsibility of concerned official for
failure to comply with the same. It is
notable that once, punishment of censure
has already been awarded to defaulting
SHOs and advisory has been issued to all
defaulting ACPs as per explanation earlier
called from CP, Delhi and reports
furnished by DCP, South and DCP,
South-East on behalf of CP, Delhi in
another matter but still, there is no
improvement which practically shows thatCriminal Appeal No. 388-389 of 2024 Page 4 of 21
even higher hierarchy in police has failed
to instill discipline in Delhi Police.
Let copy of order be sent to CP, Delhi for
information and compliance.
Let copy of order be sent to SHO PS
Defence Colony for reference and
compliance.”(emphasis added)
4. Further order was passed by the appellant on 31st
January 2023 in which it was observed that though the
appellant had asked DCP (Deputy Commissioner of Police),
South to hold an inquiry about the role of Investigating
Officer (IO) as well as Station House Officer (SHO) of
Defence Colony Police Station, only show cause notices of
censure have been issued to the officers. The appellant
observed that the report of DCP, South, was silent about
the observation made in the earlier order that there was
something fishy in the investigation. Therefore, the
appellant observed that the order dated 21st January 2023
has not been taken into consideration by the DCP, South.
Hence, the appellant directed the Commissioner of Police,
Delhi, to conduct a vigilance inquiry against the IO and
SHO of Defence Colony Police Station. However, the
appellant dropped the show cause notice issued to IO and
SHO under the order dated 21st January 2023 for showing
Criminal Appeal No. 388-389 of 2024 Page 5 of 21
cause why they should not be prosecuted under Section
177 of the IPC.
5. The IO and SHO filed a petition under Section 482 of
the Code of Criminal Procedure, 1973 (for short, ‘the CrPC’)
for expunging the remarks made against them in the
orders dated 21st January 2023 and 31st January 2023. A
prayer was also made to set aside the direction issued to
the Commissioner of Police, Delhi to hold vigilance inquiry
against them. By the first impugned order, the learned
Single Judge of the High Court directed that all remarks
made against the IO and SHO in the orders dated 21st
January 2023 and 31st January 2023 shall stand
expunged. Even the directions issued by the appellant
against the Commissioner of Police and the Deputy
Commissioner of Police were ordered to be deleted.
6. As seen from the grounds taken in the appeals and
written submissions dated 30th September 2024, the
appellant’s grievance is about remarks recorded against
him in paragraphs 13 and 14 of the first impugned order.
The said remarks are as follows:
“13. Not only are such remarks
unnecessary but also could have serious
implications on the careers of public
servants, particularly for what seems in
the facts and circumstances as
perfunctory issues which have no huge
negative impact on the actualCriminal Appeal No. 388-389 of 2024 Page 6 of 21
administration of the criminal justice
process. As discussed above, the Ld.
ASJ ought not to have embarked on an
inexorable quest when his original
concern had been suitably addressed.
The remarks and the phraseology used
by the Ld. ASJ is summary in nature,
penal in its scope, stigmatizing in its
tone and tenor and as already
motioned, beyond the ken of expected
judicial conduct. In these facts and
circumstances it is directed that all
remarks against the petitioners in orders
dated 21st January, 2023 and 31st
January, 2023 passed by Ld., Additional
Sessions judge, South East, Saket Courts,
New Delhi in Bail Appl. No. 202/2023
shall be expunged and all directions for
conducting enquiries and explanations by
the DCP or the Commissioner of Police
shall be recalled and stand deleted from
the said orders.
14…………………………………………………
It is expected therefore that the Ld. ASJ
would be circumspect and exercise care
and caution in future before embarking
on these judicial misadventures.”
7. We must note here that the appellant applied for
impleading the High Court of Delhi as a party through its
Registrar General. The said application was allowed. A
short reply was filed on behalf of the High Court by O.S.D.
(Rules and Litigation) in which reliance was placed on Rule
6, Part H, Chapter I of Volume III of the High Court Rules
and Orders. Rule 6 provided that it is undesirable for
courts to make remarks censuring the action of police
Criminal Appeal No. 388-389 of 2024 Page 7 of 21
officers unless such remarks are strictly relevant to the
case. It also provided that there should not be any over-
alacrity on the part of Judicial Officers to believe anything
and everything against the police. Prima facie, we were of
the view that this Rule interferes with the discretion
available to the judges. It is unnecessary for us now to deal
with Rule 6 as a document has been placed on record by
the learned ASG appearing for the High Court that the Rule
Committee of the High Court has approved the deletion of
Rule 6 and the approval of the Hon’ble Governor has been
sought for the deletion.
SUBMISSIONS
8. Learned counsel appearing for the appellant has
invited our attention to factual aspects of the case dealt
with by the appellant, which warranted the appellant to
pass strict orders against the Police Officers and issue
directions referred to above. He pointed out that the
appellant did not take forward the show cause notice
issued to the IO and SHO, calling upon them to show cause
as to why criminal law should not be set in motion against
them for the offence punishable under Section 177 of the
IPC. He pointed out that all that the appellant did was point
out flaws in the investigation and the failure to update
SCRB data. He submitted that there was non-compliance
with the standard operating procedure dated 29th January
2021 issued by the Office of Commissioner of Police of
Criminal Appeal No. 388-389 of 2024 Page 8 of 21
Delhi, through Deputy Commissioner of Police, on this
behalf. He submitted that nothing is wrong if the appellant
criticises the IO for not properly maintaining the case
diary.
9. Coming to the remarks made in the first impugned
order, he relied upon decisions of this Court in the case of
V.K. Jain v. High Court of Delhi through Registrar
General and Ors.1, K.P. Tiwari v. State of M.P.2 and in
Re: ‘K’, A Judicial Officer3. He submits that the remarks
against the appellant in paragraphs 13 and 14 of the first
impugned order deserve to be expunged. He submitted that
in the first impugned order, the High Court relied upon its
own decision in the case of Ajit Kumar v. State (NCT of
Delhi)4, which in turn relies upon Rule 6, which has been
now deleted.
10. He submitted that due to the adverse remarks against
the appellant in the first impugned order, the unblemished
career of the appellant as a Judicial Officer is likely to be
adversely affected. He also invited our attention to
observations made by this Court in the case of Dayal
Singh and Ors. v. State of Uttaranchal5.
1
(2008) 17 SCC 538
2
1994 Supp (1) SCC 540
3
(2001) 3 SCC 54
4 2022 SCC OnLine Del 3945
5
(2012) 8 SCC 263
Criminal Appeal No. 388-389 of 2024 Page 9 of 21
11. The learned counsel representing the State has
assisted the Court by pointing out the law on this aspect.
CONSIDERATION OF SUBMISSIONS
12. There are two parts of the first impugned order. The
first part concerns expunging the observations and
findings recorded by the appellant against the IO and SHO
and setting aside the direction issued by the appellant to
the Commissioner of Police for holding an inquiry. The
second part concerns the adverse observations/remarks
made in paragraphs 13 and 14. As far as the first part is
concerned, the appellant cannot make any grievance. The
appellant’s grievance must be confined only to the second
part.
13. In the case of State of U.P. v. Mohd. Naim6, in
paragraph 11 this Court held thus:
“11. The last question is, is the present
case a case of an exceptional nature in
which the learned Judge should have
exercised his inherent jurisdiction under
Section 561-A CrPC in respect of the
observations complained of by the State
Government? If there is one principle of
cardinal importance in the administration
of justice, it is this: the proper freedom and
independence of judges and Magistrates
must be maintained and they must be6
1963 SCC OnLine SC 22Criminal Appeal No. 388-389 of 2024 Page 10 of 21
allowed to perform their functions freely
and fearlessly and without undue
interference by any body, even by this
Court. At the same time it is equally
necessary that 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. It has been
judicially recognised that in the matter of
making disparaging remarks against
persons or authorities whose conduct
comes into consideration before courts of
law in cases to be decided by them, it is
relevant to consider (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 (c)
whether it is necessary for the decision of
the case, as an integral part thereof, to
animadvert on that conduct. It has also
been recognised that judicial
pronouncements must be judicial in
nature, and should not normally depart
from sobriety, moderation and reserve.”
(emphasis added)These observations must be borne in mind by every Judge.
Criminal Appeal No. 388-389 of 2024 Page 11 of 21
14. In the case of in Re: ‘K’, A Judicial Officer3, in
paragraphs 7 and 8, this court observed thus:
“7. 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. It
should be no deterrent to formation and
expression of an honest opinion and
acting thereon so long as it is within
four-corners of law that any action
taken by a subordinate judicial officer
is open to scrutiny in judicial review
before a superior forum with which its
opinion may not meet approval and the
superior court may upset his action or
opinion. The availability of such
fearlessness is essential for the
maintenance of judicial independence.
However, sobriety, cool, calm and poise
should be reflected in every action and
expression of a Judge.
8. The primary purpose of pronouncing a
verdict is to dispose of the matter in
controversy between the parties before it.
A Judge is not expected to drift away from
pronouncing upon the controversy, to
sitting in judgment over the conduct of the
judicial and quasi-judicial authorities
whose decisions or orders are put in issue
before him, and indulge in criticising and
commenting thereon unless the conduct of
an authority or subordinate functionary or
anyone else than the parties comes of
necessity under review and expression of
opinion thereon going to the extent of
commenting or criticising becomes
Criminal Appeal No. 388-389 of 2024 Page 12 of 21
necessary as a part of reasoning requisite
for arriving at a conclusion necessary for
deciding the main controversy or it
becomes necessary to have animadverted
thereon for the purpose of arriving at a
decision on an issue involved in the
litigation. This applies with added force
when the superior court is hearing an
appeal or revision against an order of a
subordinate judicial officer and feels
inclined to animadvert on him. The
wisdom of a Superior Judge itching for
making observations on a Subordinate
Judge before ventilating into expression
must pause for a moment and read the
counsel of Cardozo—
“Write an opinion, and read it a few
years later when it is dissected in the
briefs of counsel. You will learn for the
first time the limitations of the power of
speech, or, if not those of speech in
general, at all events your own. All sorts
of gaps and obstacles and impediments
will obtrude themselves before your
gaze, as pitilessly manifest as the
hazards on a golf course. Sometimes
you will know that the fault is truly
yours, in which event you can only
smite your breast, and pray for
deliverance thereafter.”
In paragraph 15, this Court specifically dealt with the
legality of observations made by the High Court against a
Judicial Officer who was a serving member of the judiciary.
Paragraphs 15 to 17 are material, which read thus:
Criminal Appeal No. 388-389 of 2024 Page 13 of 21
15. In the case at hand we are concerned
with the observations made by the High
Court against a judicial officer who is a
serving member of subordinate judiciary.
Under the constitutional scheme control
over the district courts and courts
subordinate thereto has been vested in the
High Courts. The control so vested is
administrative, judicial and disciplinary.
The role of High Court is also of a friend,
philosopher and guide of judiciary
subordinate to it. The strength of power
is not displayed solely in cracking a
whip on errors, mistakes or failures; the
power should be so wielded as to have
propensity to prevent and to ensure
exclusion of repetition if committed
once innocently or unwittingly. “Pardon
the error but not its repetition”. The power
to control is not to be exercised solely by
wielding a teacher’s cane; the members of
subordinate judiciary look up to the High
Court for the power to control to be
exercised with parent-like care and
affection. The exercise of statutory
jurisdiction, appellate or revisional and
the exercise of constitutional power to
control and supervise the functioning of
the district courts and courts subordinate
thereto empowers the High Court to
formulate an opinion and place it on
record not only on the judicial working but
also on the conduct of the judicial officers.
The existence of power in higher
echelons of judiciary to make
observations even extending to
criticism incorporated in judicial orders
cannot be denied, however, the High
Courts have to remember that
Criminal Appeal No. 388-389 of 2024 Page 14 of 21
criticisms and observations touching a
subordinate judicial officer
incorporated in judicial
pronouncements have their own
mischievous infirmities. Firstly, the
judicial officer is condemned unheard
which is violative of principles of
natural justice. A member of
subordinate judiciary himself
dispensing justice should not be denied
this minimal natural justice so as to
shield against being condemned
unheard. Secondly, the harm caused by
such criticism or observation may be
incapable of being undone. Such
criticism of the judicial officer
contained in a judgment, reportable or
not, is a pronouncement in open and
therefore becomes public. The same
Judge who found himself persuaded,
sitting on judicial side, to make
observations guided by the facts of a
single case against a Subordinate Judge
may, sitting on administrative side and
apprised of overall meritorious
performance of the Subordinate Judge,
may irretrievably regret his having
made those observations on judicial
side, the harming effect whereof even
he himself cannot remove on
administrative side. Thirdly, human
nature being what it is, such criticism
of a judicial officer contained in the
judgment of a higher court gives the
litigating party a sense of victory not
only over his opponent but also over the
Judge who had decided the case against
him. This is subversive of judicial
authority of the deciding Judge.
Criminal Appeal No. 388-389 of 2024 Page 15 of 21
Fourthly, seeking expunging of the
observations by a judicial officer by
filing an appeal or petition of his own
reduces him to the status of a litigant
arrayed as a party before the High Court
or Supreme Court — a situation not
very happy from the point of view of the
functioning of the judicial system. May
be for the purpose of pleading his cause
he has to take the assistance of a legal
practitioner and such legal practitioner
may be one practising before him. Look
at the embarrassment involved. And
last but not the least, the possibility of
a single or casual aberration of an
otherwise honest, upright and
righteous Judge being caught unawares
in the net of adverse observations
cannot be ruled out. Such an incident
would have a seriously demoralising
effect not only on him but also on his
colleagues. If all this is avoidable why
should it not be avoided?
16. We must not be understood as
meaning that any conduct of a
subordinate judicial officer unbecoming of
him and demanding a rebuff should be
simply overlooked. But there is an
alternate safer and advisable course
available to choose. The conduct of a
judicial officer, unworthy of him,
having come to the notice of a Judge of
the High Court hearing a matter on the
judicial side, the lis may be disposed of
by pronouncing upon the merits thereof
as found by him but avoiding in the
judicial pronouncement criticism of, or
observations on the “conduct” of the
Criminal Appeal No. 388-389 of 2024 Page 16 of 21
subordinate judicial officer who had
decided the case under scrutiny.
Simultaneously, but separately, in-
office proceedings may be drawn up
inviting attention of Hon’ble Chief
Justice to the facts describing the
conduct of the Subordinate Judge
concerned by sending a confidential
letter or note to the Chief Justice. It
will thereafter be open to the Chief
Justice to deal with the subordinate
judicial officer either at his own level or
through the Inspecting Judge or by
placing the matter before the full court
for its consideration. The action so taken
would all be on the administrative side.
The Subordinate Judge concerned would
have an opportunity of clarifying his
position or putting forth the
circumstances under which he acted. He
would not be condemned unheard and if
the decision be adverse to him, it being on
administrative side, he would have some
remedy available to him under the law. He
would not be rendered remediless.
17. The remarks made in a judicial order
of the High Court against a member of
subordinate judiciary even if expunged
would not completely restitute and restore
the harmed Judge from the loss of dignity
and honour suffered by him. In Judges by
David Pannick (Oxford University Press
Publication, 1987) a wholesome practise
finds a mention suggesting an appropriate
course to be followed in such situations:
“Lord Hailsham explained that in a
number of cases, although I seldom told
the complainant that I had done so, ICriminal Appeal No. 388-389 of 2024 Page 17 of 21
showed the complaint to the Judge
concerned. I thought it good for him both
to see what was being said about him
from the other side of the court, and how
perhaps a lapse of manners or a
momentary impatience could
undermine confidence in his decision.”(emphasis added)
15. The Courts higher in the judicial hierarchy are
invested with appellate or revisional jurisdiction to correct
the errors committed by the courts that are judicially
subordinate to it. The High Court has jurisdiction under
Article 227 of the Constitution of India and Section 482 of
the CrPC to correct the errors committed by the courts
which are judicially subordinate to it. We must hasten to
add that no court can be called a “subordinate court”.
Here, we refer to “subordinate” courts only in the context
of appellate, revisional or supervisory jurisdiction. The
superior courts exercising such powers can set aside
erroneous orders and expunge uncalled and unwarranted
observations. While doing so, the superior courts can
legitimately criticise the orders passed by the Trial Courts
or the Appellate Courts by giving reasons. There can be
criticism of the errors committed, in some cases, by using
strong language. However, such observations must always
be in the context of errors in the impugned orders. While
doing so, the courts have to show restraint, and adverse
comments on the personal conduct and calibre of
Criminal Appeal No. 388-389 of 2024 Page 18 of 21
the Judicial Officer should be avoided. There is a difference
between criticising erroneous orders and criticising a
Judicial Officer. The first part is permissible. The second
category of criticism should best be avoided. The reasons
are already explained by this Court in Re: ‘K’, A Judicial
Officer3. There are five reasons given in paragraph 15 of
the decision why judicial officers should not be condemned
unheard. As observed in the decision, the High Court
Judges, after noticing improper conduct on the part of the
Judicial Officer, can always invite the attention of the Chief
Justice on the administrative side to such conduct.
Whenever action is proposed against a judicial officer on
the administrative side, he gets the full opportunity to
clarify and explain his position. But if such personal
adverse observations are made in a judgment, the Judicial
Officer’s career gets adversely affected.
16. The Judges are human beings. All human beings are
prone to committing mistakes. To err is human. Almost all
courts in our country are overburdened. In the year 2002,
in the case of “All India Judges’ Association (3) and Ors.
v. Union of India and Ors.7, this Court passed an order
directing that within five years, an endeavour should be
made to increase the judge-to-population ratio in our trial
judiciary to 50 per million. However, till the year 2024, we
7 (2002) 4 SCC 247
Criminal Appeal No. 388-389 of 2024 Page 19 of 21
have not even reached the ratio of 25 per million.
Meanwhile, the population and litigation have
substantially increased. The Judges have to work under
stress. As stated earlier, every Judge, irrespective of his
post and status, is likely to commit errors. In a given case,
after writing several sound judgments, a judge may commit
an error in one judgment due to the pressure of work or
otherwise. As stated earlier, the higher court can always
correct the error. However, while doing so, if strictures are
passed personally against a Judicial Officer, it causes
prejudice to the Judicial Officer, apart from
the embarrassment involved. We must remember that
when we sit in constitutional courts, even we are prone to
making mistakes. Therefore, personal criticism of Judges
or recording findings on the conduct of Judges in
judgments must be avoided.
17. We have already referred to the observations made in
paragraphs 13 and 14 of the first impugned order. In
paragraph 13, it is observed that the appellant ‘embarked
on an inexorable quest’. This ought to have been avoided
by the High Court. Paragraph 14 contains advice to the
appellant to be circumspect and to exercise care and
caution in future. The High Court could not have used a
judgment on the judicial side to advise individual Judicial
Officers. That can only be done on the administrative side
in an appropriate case. Describing the appellant’s
Criminal Appeal No. 388-389 of 2024 Page 20 of 21
approach as a ‘judicial misadventure’ in paragraph 14 was
also improper. Therefore, the prayer made by the appellant
for expunging remarks in paragraphs 13 and 14, which we
have quoted in paragraph no.6 above, will have to be
acceded to. We make it clear that the direction to expunge
the remarks made against the appellant will not bind the
administrative side of the High Court.
18. Accordingly, the appeals are allowed. Adverse
remarks against the appellant in paragraphs 13 and 14 of
the first impugned order, which we have quoted in
paragraph no.6 above, are hereby expunged.
……….……………………..J.
(Abhay S. Oka)
……….……………………..J.
(Ahsanuddin Amanullah)
……….……………………..J.
(Augustine George Masih)
New Delhi;
November 22, 2024.
Criminal Appeal No. 388-389 of 2024 Page 21 of 21