R. K. LAKSHMANAN versus A. K. SRINIVASAN & ANR.

R. K. LAKSHMANA"L

A. K. SRINIVASA."" & AclRc

August 1, 1975

[Y. V. CHANDRACHUD, P. N. BHAGWATI AND R. s. SARKARL\, JJ.]

Praczice Gild J:rucedure-Disparaging remarks against persons or authorities whose conduct comes for consideration before Courts of Law-Tests to be applied.

The appellant was District 11agistrate. In case pending before him- an affidavit of on~ of the sureties was attested by the respondent who v1as practis-ing advocate. On the failure of the surety to appear in the Court on the due date, notice_ \Vas llsued to him. The notice hav!ng been returned unsen·ed, the Magistrate issued notice to the respondent, despite the fact that he was not the · duly constituted attorney of the surety, calling upon him to appear in the. ccurt in connection with this- case. The respondent thereupon moved the H!gh-Court· under s. 561A Cr. P.C. alleging that the notice was arbitrary and amounted to :an abuse of the prcce!s of the court because there was no provision in the Crimi-nal Procedure Code empO\Vering the Magistrate to issue such notice to· b!m, that he was in no \vay connected with the bail bond and that the notice was issued to humiliate him and the Bar since the latter had passed resolution pro-testing against· the !mproper and discourteous behaviour of the Alagi:.trate. The respondent prayed that the appellant be directed to withdraw'the notice. ·

The High Court called for report frOm the appellarit as to the circumstances in which he had th1Jught fit to issue notice as also the provision of law. After receiving the appeJJanl\ report the High Court quashed the notice holding· that the action of the ~lagistrate constituted grave misuse of his power and flagrant abuse of the r:rocess. of the Court. ·

The "appellant's- appliCation to the High Court for exp_unction.:of ce~tain re· marks made against him was rejected. ·

Di.'lmissing the appeal to this Court.

lfELD : (1) The tests ·to be applied in considering expunction of dispan:.ging Temarks against persons or authorities whose conduct comes in for consideration '.before courts of hi.\V in cases to be decided by them are (£) Whether the party Vihose conduct is in question is before the Court or has an opportunity of ex-plaining or defending himself; (ii) Whether there is evidence on record bearing ,on that conduct just!iying the remarks and (iii)_ Whether it is neC'Cssary for the "decision of the case, as an integral part thereof, to animadvert on that conduct. It has aJso been recogn~d that judicial pronouncements must be judicial in :nature· and should not normally depart ·from sob~iety, moderation and reserve.

[209A·DJ

State of U.l'. v. Muhammad Nafo, [1964] 2 S.C.R; 363 at 374, applied.

Jn the p!_esent c~se in response to the Higli Court's notice the apoellant sub-imitteJ detailed report. Before the High Court he was represented by senior Public Prosecutor. Jfe had thus adequate opportunity of explaining his conduct in defend!-ng ·the impttgned action. The appellant cannot complain that the re-·marks were passed b~· the High Court without affording him due cpportunity to ·explain and defend his action. [209E-F]

(2) Though th~ nutice by itself was not very offensive document. the alle-gation of bad faith and that it was issued to hum.'.liate an advocate and the Bar who had earlier pJssed resolution complaining against the misbehaviour ._,f the appe11ant showed that the notice was _illegal •. arbitrary and tainted \Vith bad fatth. It \vas preliminary step taken under cover of s. 476 Cr. P.C. for possible prosecution of the Advocate. [209G-210C]

..-.. I

(3) (a) The notice issued to the surety which was returned by the police stated that the service could not be effected for want qf sufficient information and: more detailed patticulars regarding the surety while the appellant stated that "it was reported by the police that there was no such person as far as they could gather fron1 the detailed ~nquiries made and, therefore, notice could not be served." Evidently this misleading stand was taken bY the appellant to show that action under s. 476 Cr. P .C. against the Advocate would not be ground-Jess. [2JOE.HJ

( b) The remarks of the High Court were an integral part of the· reasoning: of the High Court. They v:ere not irrelevant or foreign to the 1natter under issu~. They were inextricably ~nt~rtwined with the findings and the ord~r rec0rd· ed by the High Court. Excision of these remarks would emasculate the crder of the High Court robbing it of its very rationale.[211A·B]

CR!MINA,L APPELLATE JVRISDICTION : Criminal Appeal No. 130 of 1975.

Appeal by Special Leave from the Judgment and Order dated the 13th March, 1974 of the Kerala High Court in Criminal Misc. Peti-tion No. 7 of 1974 with Crl. M.P. No. 967 /73.

K. T. Harindranath and T. T. Kunhikanan, for the appellant.

A. S. N ambiar for respondent no. I.

K. R. Nambiar, for respondent No. 2.

The Judgment of the Court was delivered by

SARKARIA, J.-This appeal by special leave is directed against judgment of the Kerala High Court rejecting the appellant's application under s. 561-A. Criminal Procedure Code for expunction of certain remarks made against him in the High Court's Order, dated 20-11-1973, in Criminal Misc. Petition No. 967 of 1973.

The appellant is ~ember of the Kerala Judicial Service, while the respondent herein is an Advocate practising at Ernakulam. On 14-8-1973, the appellant was working as District Magistrate Ernakulam. One Kamalasat1an, who was an accused in C.C. Nos. 216 and 217 of 1973 pending before him, was ordered to be released on bail on his executing bond for Rs. 1,000/- with two sureties in the like amount. The two sureties were Kamaleswaran, the brother of the accused, and Sri Thankappan Nair. Thankappan's address was given as "business-man, son of Parameswaran Pillai, Thambanoor Trivandrum." The affidavit filed by Thankappan, while offering himself as surety, was attested by Sri A. K. Srinivasan Advocate stating "solemnly affirmed at Ernakulam on this 14th dav of August 1973 and signed before me who is personally known to me".

The above cases stood posted for examination of the accused under s. 342 of the Code of Criminal. Procedure. Whe.n on that date the cases were called for hearing. the accused was absent. His Counsel Shr.i Srinivasan appeared and represented that although he had no information from the accused, who had to come from Trivandrum. yet he was expecting him to reach the court in time. The aP'le'lant (Dis-trict Magistrate) thereupon ordered cancellation of the bail bonds and

directed issue of notices to the Surety under s. 514 of the Code of Criminal Procedure calling upon him to show cause before 16-10-19i3 why the terms of the Surety bonds providing for forfeiture of the sum of Rs. 1,000/- be not enforced. The notices issued to the Surety Thankappan Nair, were returned unserved whereupon on the 17th October, 1973, the appellant issued non-bailable warrant for the .arrest of the Surety. On the following day, the appellant issued notice to Sri A. K. Srinivasan, Advocate which ran as under :"Emakulam District Magistrate Court No. M.C. 106 and M.C. 107 of 1973.

Notice for Shri K. Srinivasan, Advocate.

The above-mentioned cases are being fixed for hearing 3-11-1973 at 11 A.M .. You are required to appear before the Court. . . . . . . . . . ...

. . . . . . . . . ...

lly Order

18th October, 1973

SARISHADAR.''

It may be mention,ed here that in the proceedings initiated under ,s. 514 of the Code of Criminal Procedure in the two cases. Mr. Srinivasan, Advocate was not the duly constituted attorney !or the Surety, Thankappan.

On receipt of the aforesaid notice, Mr. Srinivasan, Advocate filed Crl. M.P. 967 of 1973 before the High Court of Kerala under s. 561-A 'of the Code of Criminal Procedure praying that the appellant be directed to withdraw the notice, dated 18-10-1973, on the ground that the issue of notice was arbitrary and amounted to an abuse of the pro-cess of the court because-

( a) There is no provision in the Criminal Procedure Code empowering the Magistrate to issue such notice to com-mand the Advocates' appearance when be is not connected either as witness or party or otherwise with the pro-ceedings relating to cancellation of bail-bonds;

(b) The notice was issued to humiliate him and the Bar since the latter had passed resolution, on 21-7-1973, pro-testing against the improper and discour'eous treatment meted out by the Magistrate to the members of the Bar.

The learned Judge of the High Court before whom this petition came up for hearing, by an order dated 2-11-1973. called for report from the appellant by 5-11-1973 regarding the allegations contained in: the Advocate's petition a!1d particularly as 10 under which provision of law and under what cJicumstances he had thought it fit to issue notice to the Advocate requiring him to apoear before him on 3-11-1973. The. appellant thereupon submitted the report to the High Court, the material part of which reads :

"When notice was sent to the suretv Thankaooan Nair whose address is given as, business-man, Thambanoor.

-~. \ .

Trivandrum it was reported by the Police that there is no such person, as far as they could gather, from the detailed enquiries made and therefore nol!ce could not b~ served. In the affidavits filed by Shn Thankappan Nair m these two cases when he offered himself as surety the signatures of the deponent were attested by Shri A, K. Sreenivasai;, Advocate stating Solemnly affirmed at Ernakulam on this the 14th day of August J 973 and signed before me, Who is personally known to me. From the report of the Police Trivandrum it appeared that this might be case of false .personation. It is seen that in several cases the accused have been got re-leased by false sureties. I have already submitted report about this to the Hon'ble High Court as per my letter dated 31··10-1973.There are several other similar instances of false persona-tion and filing false affidavits pending enquiry before thls Court. Under the circumstances in this case also it appeared to the court that false affidavit has been filed by false per-sonation!. If it is false personation, the attestation by the advocate should necessarily be false. The o.ffences under Sections 193, 196, 197, 199 and 205 of the .Indian Penal Code appear to have been committed. These are some of the offences mentioned in Section 195 Cr!. P.C. Under section 476 of the Cr. P.C. when any Civil, Revenue or Criminal Court is, whether on appliCation made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence re-ferred to in Section 195, Sub-section (1), Cl. (b) ore!. (c), whlch appears to have been committed in or in relation to proceeding in that court, such court may, after such preli-minary inquiry if any, as it thinks necessary, record finding to that effect and make complaint thereof in writing signed by the presiding officer of the Court ........ To ascertain whether there is person as described in the affidavits filed in the name of Shri Thankappan Nair no'icc was issued as part of the preliminary enquiry contemplated under Section 476 Cr. P.C. to Shri A. K. Sreenivasan who has attested the affidavits of the said Thankappan Nair stating that the de-P'.lllent is personally known to him. This had to be done in v~ew of the r7port of the police. Notice to Shri A. K. Sree-. n~vasan ":as issued to appear in court on 3-11-1973 not in hrs capacity as Advocate appearing for the accused but as the .Person who has attested the affidavit of the said surety statmg that h~ i;>ersonally .knows the surety. The court can make t~e prehmmary enqmry mentioned above, either through the Pohce or to the accused or to the other surety or to the person iyho attested the affidavit. Jn this matter accused is ab~ondmg. ~he other surety could not be served and the pohc;e re~ort rs as stated above. So the only nerson to whom ~e mqmry under 476 could be ma.-le in the circumstances is the person who has attested the affidavit."

On 8-11-1973, the Advocate fikLr •:::}davit in which he)nter-

alia averred : ' ' "I submit that the present explanation that the notice was issued to me as part of the preliminary enquiry contem-plated under sec. 476 of the Criminal Procedure Code is obviously an after-thought, since it is difficult that any reason-able man would have inferred from the Police Report dated 12-10-1973 that Sri Thankappan Nair, one of the sureties was non-eXistent person and therefore the attestation mad~ by me on 14-8-1973 would have been false".

He further reiter~ted with elaboration the allegations in his Petition ·that the impugned action of the Magistrate lacked good faith and due care and had been issued to humiliate the bar generally and the peti" tioner particularly. ,

After taking into consideration the appellant's report and other material on record, the High Court quashed the notice holding that the "action of the District Magistrate in issuing the impugned notice to the appellant constitutes grave misuse of his power and Jlagrant abuse ,of the process ·of the court". ·

The app~llant then moved an application (Cr. M.P. No. 7 of 1974) for expunction of the remarks made against him by the High Court in its order,- dated 20-11Cl973. The application was rejected_.

Against that order, dated 13-3-1974, refusing to expunge the ad-verse remarks, Shri Lakshmanan, the District Magistrate has come in . appeal to this Court. ·

· In the _reply affidavit, dated 21-3-1975, filed in this Court, the appellant has submitted that if this Court is prima facie of the opinion that the passages requested to be expunged are too many and spread over throughout the order, at least these four passages be expunged from. the order in question : . ·" . . ·

"(i) I cannot hdp--;emarking that the informa•ion fur-nished to this Court by the District Magistrate in his report da•ed 3-11-1973 regarding the contents of the Police Report is grossly inaccurate and misleading." ·

"(ii) I make no secret of my opinion that the action !aken by_ the District Magistrate, in the present case in issu-mg no!Ice to the pet11Ioner, who is member of the bar was most ?ighly_ arbitrary and the very casual fashion in ~hich the said act10n has been done renders it al! the more objec-tionable." ·. .

. : "_(iii) th~t the :iction taken against the petitioner by the ~1stnct M_ag1strate 1s totally devoid of any legal sanction and highly arbitrary." ·

"(iv) I hold that the action of the ~istrict Magis_trate in issuing the impugned notice to the peht10ner constitutes grave misuse of his power and also flagrant abuse of the process of his court".

The tests to be applied in considering the expunction of dis~arag­ing remarks against persons or authorities whose co~duct comes m for consideration before courts of law in cases to be decided by them, were neatlv summed up by this Court, speaking through S. K. Das, J., in State of U.P. v. Muhammad Nain,([1]) thus :

"(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;

(ii) Whether there is evidence on record bearing on that conduct justifying the remarks; and

(iii) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that con-duct. It has also been recognised that judicial pro-nouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve."

. Let us now apply these tests to the present case.

In the petition filed under s. 561-A, Code of Criminal Procedure. by the Advocate, the appellant was impleaded as the sole respondent. The appellant was called upon by the High Court to explain his con-duct in issuing the impugned notice. In reply, the appellant submitted detailed report. It is not controverted that before the High Court. the appellant was represented by senior Public Prosecutor who had been directed to defend him by the State Government. The appellant had thus adequate opportunity of explaining his condt!Ct and defending the impugned action. Indeed, in his report submitted to the High Court, he did his best to justify his conduct in that case. The appel-lant therefore, cannot complain that the remarks in question were passed by the High Court without affording him due opportunitv to exp'ain and defend his action. ,

Xor cau. it be said that this is case where there was no evidence on record bearing on the conduct of the appellant to which the re-marks in question pertain.

It is true that ex-facie, the notice requiring the Advocate to attend the Court of the Appellant on 3-11-73, though conched in curt aml neremptory language, was not, by itself, very offensive document. But the Advocate's allegation was that it had not been issned in good faith and the sole nurpose of issuing this notice was to humi!ate the Advocate an<I the R•r who had earlier passed resolution complain-ing to the Hig1 Court against the misbehaviour of the appellant to-wards the members of the Bar. Subsequently, on 8-11-1973 the

(l) [l964J. 2 S.C.R. 363 at 374.

Advocate filed an affidavit setting forth full particulars of the circums-tances which, according to him> showed how the notice was illegal. arbitrary and tainted by bad faith. He annexed copy of the Bar's resolution, to his affidavit. The report sent by the appellant to the High Court confirmed that the allegations made-in the Advocate's peti-tion were not empty a_pprehensions. The report revealed that the notice was not an innocuous request to the Counsel to furnish better particulars of the Surety, but it was preliminary step taken under cover of s. 476, Criminal Procedure Cdde for possible prosecution of the Advocate. The appellant gave clear clue to his ulterior intent, when in the report, he said :

"Notice to Shri A. K. Sreenivasan was issued .... not in his capacity as Advocate appearing for the accused but as the person who has attested the affidavit of the said Surety .... "

Thus there was ample material before the High Court bearing on the impugned conduct of the appellant, justifying the adverse con-ments in question.

Again, the passages sought to be expunged could not be said to be irrelevant or alien to the subject matter of the case before the High Court.

The notice issued to the Surety had been returned by the police

with an endorsement which, rendered into English, reads as und•'r :

"Notice could not be served on the person referred to in the notice as he (process server) did not get any infonna-tion about him after detailed enquiry made about him in Tampanoor from different businessmen. For want of suffi-cient information and more detailed particulars regarding the nature of the business conducted at Tampanoor by the person referred to in the notice, the service could not be effected.

Submitted for orders".

But in his report submitted to the High Court, the appellant stated that "it was reported by the Police that there is no such person as far as they could gather from the detailed inquiries made and thE,refore notice could not be served". Manifestly, this statement did not pre-sent faithful and correct picture of the endorsement of the process server. Evidently, this mi,sleading stand was taken by the appellant to show that action under, s. 476, Criminal Procedure Code against the Advocate would not be groundless. In these premises it cannot be said that the observations of the High Court that "information fur-nished to this Court by the District Magistrate in his report dated 3-11-73 regarding the contents of the Police Report is grcssly in-accurate and misleading" was unjustified.

R.K. LAKSHMA\'IAN v. A. K.· SRINIVASANi ' (Sarkaria, !.) . '

The substance of the other remarks in question is substantially the same, viz.; that the issue of the impugned notice to the Advocate by the appellant was illegal and arbitrary and amounted to gross abuse of the process of the Court. These remarks were an integral part of the reasoning of the High Court. They were not irrelevant or foreign to the matter in issue. They were inextricably intertwined with the findings and the order recorded by the High Court in that case. Excision of these remarks would emasculate the order of the High Court, robbing it of its ve_ry rationa1e.

Judged by the aforesaid tests, no case for interference by this Courr has be"n made out. ·

i\ccor\lingly, we dismiss the appeal, with no order as to costs.

P.13.R.

Appeal dismissed.