Research › Search › Judgment

Madhya Pradesh High Court · body

2001 DIGILAW 112 (MP)

SHYAM NARAYAN TRIPATHI v. STATE OF M. P.

2001-02-05

FAIZAN UDDIN

body2001
FAKHRUDDIN, J. ( 1 ) THIS petition under S. 482, Cr. P. C. has been filed on behalf of the petitioner, who is practising Advocate of Ashoknagar (Guna), for expunging the remarks given against him by the trial Court, while rejecting his application for adjournment, vide impugned order dated 29-5-2000. ( 2 ) THE impugned order dated 29-5-2000 was passed by the trial Court in a Criminal Misc. Case No. 64/95 (State of M. P. v. Sukka and others), in which an application was made by the present petitioner seeking adjournment on the ground of self-illness, which was rejected by the impugned order and certain remarks were also passed against the petitioner/advocate. The trial Court in the impugned order aforesaid also noted that the counsel has not been appearing from 9-3-1996 onwards and nor he has filed memo of appearance on the record. While rejecting the application, the following remarks were passed by the trial Court as under :- ( 3 ) SHRI Saxena, learned counsel for the applicant submits that the applicant was the counsel and he was appearing on behalf of the accused-persons, and he had filed the memo. It is submitted that on 29-5-2000 since the applicant himself was sick, he could not come to the Court and the application was filed by the accused-persons for adjourning the case. Shri Saxena stated that it was within the discretion of the Court to allow adjournment or refuse. The Court, however, proceeded further and has passed the remarks, quoted above, which relate to the conduct of the applicant alleged to be misconduct and further that copy of the order has been forwarded to the Bar Council for taking action against professional ethics. It is contended that the remarks have been passed on the back of the applicant, without providing him any opportunity. ( 4 ) THIS contention has force. A perusal of the record goes to show that no notice had been issued to the applicant nor he was given any opportunity to show cause against the alleged misconduct. The remarks which have been passed were on the adjournment application and not germane to the issue, i. e. grant of adjournment. ( 4 ) THIS contention has force. A perusal of the record goes to show that no notice had been issued to the applicant nor he was given any opportunity to show cause against the alleged misconduct. The remarks which have been passed were on the adjournment application and not germane to the issue, i. e. grant of adjournment. ( 5 ) LEARNED counsel representing the applicant on this point placed reliance on the decision of the Apex Court reported in AIR 1964 SC 703 : (1964 (1) Cri LJ 549) (The State of U. P. v. Mohammad Naim), especially para 10 which is relevant and quoted below:-". . . . . . . . . . . . . . . . . . . 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 be allowed to perform their functions freely and fearlessly and without undue interference by anybody, 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. " ( 6 ) THE Apex Court in the aforesaid case has further held that it has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before the Courts of law in cases to be decided by them, it is relevant to consider :-" (A) Whether the party whose conduct is in question before the Court 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. " ( 7 ) THE Presiding Officers of the Court to enjoy position and power but the same casts heavy responsibility and duty as well. The power has to be exercised with moderation and one should not be vindictive. The personal feelings should not be allowed to override the impersonal functions of a Judge. While making remarks, it has always to be kept in mind that uncalled for strictures in a judgment can well might tear a person's reputation into shreds and cause him irreparable harm. The personal feelings should not be allowed to override the impersonal functions of a Judge. While making remarks, it has always to be kept in mind that uncalled for strictures in a judgment can well might tear a person's reputation into shreds and cause him irreparable harm. ( 8 ) THE Apex Court further had an occasion to consider the question of castigating remarks in the cases of Manish Dixit v. State of Rajasthan (2001 Cri LJ 133); Devendra K. Sharma v. State of Rajasthan and State of Rajasthan v. Sharad Dhakar (Cri. Appeals Nos. 779/98, 645 and 680/99), decided by the common judgment dt. 18-10-2000. It held as under :-"even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the Court against any person, particularly when such remarks could ensue serious consequences on the future career of the person concerned he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Such an opportunity is the basic requirement, for, otherwise the offending remarks would be in violation of the principles of natural justice. " ( 9 ) KEEPING in mind the aforesaid principles of law, so far as present case is concerned, it is apparent that the petitioner-Advocate was not given show cause notice and he had not got any opportunity of being heard. The case involved a short question whether the adjournment was to be granted or not and under the facts and circumstances, in the opinion of this Court, the remarks are unjustified, uncalled for and are liable to be expunged. ( 10 ) HAVING thus examined the matter, and in view of what has been stated above, the petition deserves to be and is hereby allowed. It is directed that the aforesaid remarks do stand expunged from the order of the learned Magistrate dated 29-5-2000. ( 11 ) NO order as to costs. Petition allowed. .