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2006 DIGILAW 813 (KER)

Alex P. Chacko v. Varghese Mathew

2006-11-29

K.S.RADHAKRISHNAN

body2006
Judgment :- Petitioner is an advocate practicing in the Courts at Pathanamthitta and Ranni and has a standing of more than 24 years at the Bar. He is aggrieved by the unwarranted and unjustified remarks made by the District Judge, Pathanamthitta while disposing of O.P. (TP) No.56 of 1998 and O.P.(TP) 57 of 1998. What infuriated the learned District Judge to make disparaging remarks against the petitioner was the filing of O.P.32195 of 1999 before this Court alleging undue delay on the part of the District Judge in disposing of Transfer O.Ps.56 & 57 of 1998.O.P.32195 of 1999 was disposed of by this Court on 20-1-2000 with a direction to the District Judge to dispose of O.P. (TP) 56/96 within a period of two weeks from 25-1-2000. Transfer O.Ps. were then come up for hearing on 25-1-2000 and dismissed by the learned District Judge vide order dated 4-2-2000 making some disparaging, unmerited, uncharitable and irrelevant remarks against the counsel, which petitioner says would lower his reputation and standing at the Bar. 2. Counsel submitted, O.P.32195 of 1999 was filed before this Court not by him, but by the party engaging another counsel and the only prayer in the original petition was for early disposal of the transfer petitions pending before the District Court. 2. Counsel submitted, O.P.32195 of 1999 was filed before this Court not by him, but by the party engaging another counsel and the only prayer in the original petition was for early disposal of the transfer petitions pending before the District Court. Petitioner submitted, learned Judge while disposing of transfer petitions stated as follows: "The filing of the O.P. before the Hon'ble High Court without bringing the stay petition to the notice of this Court and by suppressing the material facts before the Hon'ble High Court is highly irregular and improper and it amounts to abuse of the process of court and it may also amount to perjury for swearing false affidavit." Followed by the above observation learned Judge further stated as follows: "The petitioner's counsel before this Court should not have stooped to such an extent and advised the petitioner to suppress the truth and material facts and file the original petition before the Hon'ble High Court for the issuance of a direction to this Court," Later, learned Judge made further observation which reads as follows: "It cannot be said that the petitioner's counsel before this Court was not aware of the filing of the original petition before the Hon'ble High Court unless there is specific allegation that he was indifferent in the conduct of the case and the petitioner was thus constrained to approach another lawyer for appropriate action." Learned Judge made another observation which reads as follows: "The only inference that is to be drawn in the circumstances is that it is with the connivance coupled with the advice of the petitioner's counsel before this Court and that with some ulterior motive, if not for any personal gain, that the original petition happened to be filed before the Hon'ble High Court flouting all the traditional values of legal profession." Learned Judge then made further observation which reads as follows: "It is really a disgrace to the whole legal fraternity and may also amount to professional misconduct if not contempt of court which calls for coercive action by the concerned forum. I feel that such unhealthy practice ridiculing the judicial proceedings should be curbed by all means to maintain the integrity and independence of the judiciary." The above observations, according to the counsel, are unwarranted, unjustified, baseless and misconceived. I feel that such unhealthy practice ridiculing the judicial proceedings should be curbed by all means to maintain the integrity and independence of the judiciary." The above observations, according to the counsel, are unwarranted, unjustified, baseless and misconceived. Petitioner feels that such observations have been made by the learned District Judge personally against him only for the reason that the Bar Association, Pathanamthitta resolved to appraise the High Court of Kerala regarding the non disposal of cases and inordinate delay in the disposal of cases pending before the Principal District and Sessions Court, Pathanamthitta. Secretary of the Bar Association, Pathanamthitta made a representation before the High Court on 11-10-1999 seeking intervention of the Hon'ble Administrative Judge-in-charge of the District to take appropriate steps to redeem the situation. Petitioner happened to be a member in the five member delegation of the Bar Association which had submitted the memorandum on behalf of the Bar Association before the High Court, which the petitioner apprehends, may have infuriated the learned District Judge in making such remarks against him. He therefore seeks to expunge all those observations and remarks for which he has approached this Court. 3. I heard Sri P.C.Chacko, Advocate who argued the case with usual thoroughness and placed all relevant decisions. I have gone through the entire pleadings and the order passed by the learned Judge. I am of the view that the remarks made by the learned Judge against the lawyer cannot stand for a moment. I fail to see why those disparaging, unmerited, uncharitable and irrelevant remarks were made against the counsel for no reasons whatsoever. How a counsel can be find fault with for filing an original petition by the party before the High Court for speedy disposal of the transfer applications pending before District Court. Assuming that the counsel was aware of filing of the original petition, I fail to see how it would amount to professional misconduct. This Court in fact found merit in O.P.32195/99 and disposed of the same with a direction to the District Judge to dispose of T.P.No.56 of 1996 within two weeks from the 25-1-2000. That would indicate that the party was justified in filing the original petition before this court. This Court in fact found merit in O.P.32195/99 and disposed of the same with a direction to the District Judge to dispose of T.P.No.56 of 1996 within two weeks from the 25-1-2000. That would indicate that the party was justified in filing the original petition before this court. Ultimately, District Judge dismissed the transfer applications, of course the District Judge is free to do so, being a judicial function and if the party is aggrieved he can work out his remedy, but remarks made by the District Judge against the lawyer, in my view was totally unwarranted. 4. Apex court in State of Uttar Pradesh v. Mohammad Naim (A.I.R. 1964 S.C. 703) reminded the Allahabad High Court that it is a principle of cardinal importance in the administration of justice, that 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 any body, even by the Supreme 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. Court held that it has been judicially recognized 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; (h) whether there is evidence on record before 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 recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve. Apex court in A.M. Mathur v. Pramod Kumar Gupta ((1990) 2 S.C.C.533) held as follows: "The Judge's Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct." Apex court in the matter of: A Judicial Officer ((2001) 3 S.S.C.54) has held that 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, calm and poise should be reflected in every action and expression of a Judge. 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 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. 5. The observations made by the District Judge in my view were totally unwarranted. Judge while making those observations has lost his sobriety, coolness, calmness and poise causing unnecessary embarrassment to the petitioner. Judicial officer should have the qualities of head as well as heart and should remind himself that the mutual respect is the corner stone on which the entire judicial edifice is built up. Judicial system exists on public faith and confidence. Judge while making those observations has lost his sobriety, coolness, calmness and poise causing unnecessary embarrassment to the petitioner. Judicial officer should have the qualities of head as well as heart and should remind himself that the mutual respect is the corner stone on which the entire judicial edifice is built up. Judicial system exists on public faith and confidence. Let me quote the famous dictum of Edmund Burke which is as follows: "All persons possessing a position of power ought to be strongly and awfully impressed with an idea that they act in trust and are to account for their conduct in that trust to the one great Master. Author and Founder of Society." Judges should keep the scale even, not to show too much of sympathy to victims or harshness to the accused, A Judge shall not be perturbed by appealing against his decision just as what happened in this case. Judicial Officer's ego, it is seen, has been hurt, since the party has approached the High Court and obtained a direction, which resulted in his making disparaging remarks against his lawyer which in my view was uncalled for. Request made by the petitioner to expunge the remarks, extracted in the earlier part of this Judgment deserves acceptance, and I delete those remarks from the Judgment of the learned District Judge. C.R.P. is allowed as above.