# Alka Pandey v. State of U.P. & Anr

- **Citation:** (2021) 1 ILRA 408
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2020-12-15
- **Case number:** First Appeal From Order No. 1553 of 2020
- **Bench:** Alok Mathur
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/alka-pandey-v-state-of-u-p-anr-46019
- **Pages:** 7

## Headnote

A. Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 482 -
Unwarranted
&
Adverse
remark
against subordinate judicial officer -
Expunction - High Court has inherent
powers u/s 482 CrPC to expunge the
remarks
made
by
itself
or
by
subordinate Court to prevent abuse of
process of Court or otherwise secure
the ends of justice (Para 9)

B. Constitution of India , Art.235 -
District
and
Sessions
Judge
has
administrative
control
over
the
judicial officers subordinate to him,
but the administrative control cannot
be
equated
to
power
of
superintendence which is vested only
with the High Courts - if the conduct
of the subordinate judicial officer
requires corrective action advisable
course available is to intimate the
Hon'ble the Chief Justice or the
Administrative Judge along with the
1 All. Alka Pandey Vs. State of U.P. & Anr.
409
copy of the judgement for further
action, rather than taking up the
matter on the judicial side - so that
subordinate
judge
have
an
opportunity to clarify his position &
shall not be condemned unheard
(Para 11, 13)

C. Unwarranted & Adverse remark
against subordinate judicial officer on
judicial side - Not to be made, unless -
 (a)the party whose conduct is in
question is before the Court or has an
opportunity
of
explaining
or
defending himself - (b) there is
evidence on record bearing on that
conduct justifying the remark, (c)
where it is necessary for decision of
the case, as an integral part thereof,
to advert on that conduct - Sessions
Judge is expected to judge the case
before him & judicial pronouncements
must be judicial in nature but had no
jurisdiction
to
judge
the
judicial
officer who was the author of the
judgment (Para 10,11,13)

Allowed. (E-4)

List of Cases cited :-

## Text

408 INDIAN LAW REPORTS ALLAHABAD SERIES
First Appeal From Order No. 1553 of 2020
(Sanju Kushwaha Vs. Vimal Kumar
Verma) decided on 3.12.2020 will also aid
both claimants and owner.

14. In view of the above, questions of
law framed in both these appeals are
answered in the affirmative.

15. These appeals are partly allowed.
The
judgment
and
award
of
the
Commissioner shall stand modified to the
aforesaid extent namely to the extent that
the Insurance Company shall deposit the
decretal amount with interest at the rate of
12% from one month after the date of
accident till the amount is deposited.

15. The appeal of the Insurance
Company has been dismissed with costs
quantified at Rs.10,000/-. Learned counsel
for the Insurance Company has conveyed
that amount of cost be converted to penalty
if at all this Court feels that penalty has to
be imposed. Normally the penalty will have
to be paid if it is found that there was
deliberate reason for delay in paying the
amount. Here, it is the parents who are
demanding from one son for the death of
another son and they have claimed from
Insurance Company with whom the vehicle
was insured to make payment. Hence, the
minimal penalty of Rs.10,000/- would
suffice which was the cost inflicted by my
brother Judge on the Insurance Company.
Appellants of these appeals shall deposit a
sum of Rs.10,000/- which would be
substitution for penalty. The notice for
penalty is also now not to be proceeded
with further by the authorities in peculiar
facts of this case.

16. This Court is thankful to all the
learned Advocate for ably assisting the
Court and Sri S.D. Ojha, learned Advocate
for rendering services as Amicus Curiae.
----------
(2021)01ILR A408
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 15.12.2020

BEFORE

THE HON'BLE ALOK MATHUR, J.

U/S 482/378/407 No. 2389 of 2020

Alka Pandey ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Pradeep Kumar Rai, Devansh Mishra,
Prakash Pandey, Praveen Kumar Shukla,
Priyansu Singh

Counsel for the Opposite Parties:
G.A.

A. Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 482 -
Unwarranted
&
Adverse
remark
against subordinate judicial officer -
Expunction - High Court has inherent
powers u/s 482 CrPC to expunge the
remarks
made
by
itself
or
by
subordinate Court to prevent abuse of
process of Court or otherwise secure
the ends of justice (Para 9)

B. Constitution of India , Art.235 -
District
and
Sessions
Judge
has
administrative
control
over
the
judicial officers subordinate to him,
but the administrative control cannot
be
equated
to
power
of
superintendence which is vested only
with the High Courts - if the conduct
of the subordinate judicial officer
requires corrective action advisable
course available is to intimate the
Hon'ble the Chief Justice or the
Administrative Judge along with the
1 All. Alka Pandey Vs. State of U.P. & Anr.
409
copy of the judgement for further
action, rather than taking up the
matter on the judicial side - so that
subordinate
judge
have
an
opportunity to clarify his position &
shall not be condemned unheard
(Para 11, 13)

C. Unwarranted & Adverse remark
against subordinate judicial officer on
judicial side - Not to be made, unless -
 (a)the party whose conduct is in
question is before the Court or has an
opportunity
of
explaining
or
defending himself - (b) there is
evidence on record bearing on that
conduct justifying the remark, (c)
where it is necessary for decision of
the case, as an integral part thereof,
to advert on that conduct - Sessions
Judge is expected to judge the case
before him & judicial pronouncements
must be judicial in nature but had no
jurisdiction
to
judge
the
judicial
officer who was the author of the
judgment (Para 10,11,13)

Allowed. (E-4)

List of Cases cited :-

1. St. of U.P. Vs Mohd. Naim, (1964) 1 CrLJ
549

2. In the Matter of "K" A Judicial Officer
(2001) 3 SCC 54

3. Amar Pal Singh Vs St. of U.P. & anr.
(2012) 6 SCC 491

(Delivered by Hon'ble Alok Mathur, J.)

1. Heard Sri Pradeep Kumar Rai,
learned counsel for the applicant assisted
by Sri Prakarsh Pandey, Advocate as well
as
learned
Additional
Government
Advocate for the State of U.P. and Sri
Gaurav Mehrotra, Advocate who has put in
appearance on behalf of opposite party no.
2.

2. The present application under
section 482 Cr.P.C. has been filed by a
judicial officer whose judgment in Criminal
Case No. 909/2019 convicting the accused
under Section 406 and 411 IPC , was set
aside in appeal by the Sessions Judge, who
has also commented adversely on the
applicant and therefore being aggrieved by
the same, prayer has been made to
quash/expunge the said remarks.

3. The facts in brief are that the
applicant while posted as Additional Chief
Judicial Magistrate, Court No. 01, Hardoi
heard and decided Criminal Case No.
909/2019 (State Vs. Yamohan Singh). The
accused therein, was alleged to have
appeared in an examination on 20/04/1999,
and during the said examination when the
investigator had accompanied one other
student outside the hall, the accused left the
examination along with the question paper
and the answer sheet. It is stated that he
was subsequently apprehended and found
to be in possession of the answer sheet and
was therefore charged under Section 406
and 411 of the IPC. The applicant decided
the said case on 17/08/2019 and found the
accused guilty and sentenced him to 2 years
simple imprisonment and a fine of Rs.
5000/- failing which he was to undergo six
months further imprisonment. The order of
trial Court was subjected to appeal before
the Sessions Judge, Hardoi.

4. The Sessions Judge, Hardoi
allowed the Criminal Appeal No. 47/2019,
filed by the accused against the order
passed by the applicant. The Sessions
Judge held that there was no eyewitness of
the fact that the accused had ever
410 INDIAN LAW REPORTS ALLAHABAD SERIES
participated in the said examination nor did
anyone
see
him
leaving
the
said
examination hall along with the question
paper. He also returned a finding that the
Investigating Officer was not examined and
therefore the recovery of the question paper
itself was doubtful and therefore held that
none of the charges could be proved by the
prosecution and consequently allowed the
said appeal. He also made the following
remarks against the applicant:-

Þfo}ku eftLVsaV us fcuk lk{; dk
fo'ys"k.k fd;s gq, vihykFkhZ@vfHk;qDr ds fo:)
vkjksi fl) gksus dk tks fu"d"kZ fudkyk gS og =qfViw.kZ
gSA ;gk¡ ;g mYys[kuh; gS fd fo}ku eftLVsaV ds
}kjk tks fu.kZ; fy[kk x;k gS] mlesa vfHk;kstu dsl ds
mijkUr ml lk{; dk o.kZ; fd;k x;k gS tks
vfHk;kstu us izLrqr fd;k gS] ftlesa lHkh lkf{k;ksa dh
eq[; ijh{kk o izfrijh{kk ds c;ku mlh :i esa mrkj
fy;s x;s gSa vkSj fQj mlds ckn fcuk lk{; dk dksbZ
fo'ys"k.k fd;s gq, fo}ku eftLVsaV lh/ks fu"d"kZ ij vk
x;s gSa vkSj ;g fu"d"kZ ns fn;k gS fd vfHk;kstu lk{;
ls vfHk;qDr ds fo:) /kkjk 406] 411 Hkk0na0la0 ds
vkjksi fl) gks jgs gSaA vij eq[; eftLVsaV Lrj ds
U;kf;d vf/kdkjh ls ,sls fu.kZ; dh vis{kk ugha dh tk
ldrhA fo}ku eftLVsaV ls fu.kZ; ys[ku esa lq/kkj
visf{kr gSAß

5. Aggrieved by the comments and
observations made by the judgment passed
in the criminal appeal, the Judicial
Magistrate, who authored the trial Court's
judgment, has approached this Court by
means of present application under Section
482 Cr.P.C.

6. In the instant application we are not
called upon to examine the correctness of
the order passed by the Sessions Judge with
regard to the findings recorded on merits of
the case as sitting in appeal, but examine
the impugned judgment only with regard to
the aforesaid comments/observations made
against the applicant who was discharging
the duties of the presiding judge.

7. The question which arises for
determination in the present application is
whether it was appropriate or was there any
justification for the Sessions Judge in his
capacity as an appellate Court to pass any
comments
regarding
the
dexterity,
knowledge or intelligence or manner of
dealing with a case by the trial Judge.
Numerous judgments have been placed
before us passed by the Hon'ble Supreme
Court as well as by this Court which have
unequivocally discouraged the practice by
the superior Courts from commenting upon
the capabilities or in any manner reflecting
upon the persona of the Judge of the
subordinate Court while hearing an appeal
or revision where such judgment is under
challenge or even otherwise where such a
judgment is placed for consideration before
the higher Court.

8. We also heard Sri Gaurav
Mehrotra, Advocate appearing on behalf of
the High Court, who has submitted the
written instructions. He has also informed
that the remarks of the District and
Sessions Judge are only advisory in nature
and not condemnatory. He further informed
this Court that on the basis of the said
remark no action has been taken against the
applicant nor is there any proposal of the
same.

9. The jurisdiction of this Court under
section 482 Cr.P.C. to expunge the remarks
made in the order of subordinate Court was
duly
considered
and
answered
in
affirmative by the Hon'ble Supreme Court
in the case of State of U.P. Vs. Mohd.
Naim, (1964) 1 CrLJ 549. The Hon'ble
Apex Court duly considered the power of
the High Court under section 482 Cr.P.C.
and observed that it has inherent powers to
expunge the remarks made by itself or by
subordinate Court to prevent abuse of
1 All. Alka Pandey Vs. State of U.P. & Anr.
411
process of Court or otherwise secure the
ends of justice. It was further observed in
the said judgment that if there is one
principle of cardinal importance in the
administration of justice, it is :

"the
proper
freedom
and
independence of judges and magistrates
will be maintained and they must be
allowed to perform the 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
restrain."

10. It is not infrequent that sweeping
generalisation defeat the very purpose for
which they are made to stop it has been
traditionally recognised that the matter of
making
disparaging
remarks
against
person/authority who's conduct comes into
consideration before the Courts of law in
the 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 remark, (c) whether it is
necessary for decision of the case, as an
integral part thereof, to advert on that
conduct. It has also been recognised that
judicial pronouncements must be judicial in
nature, and should not normally depart
from some petty moderation and reserve.

11. The Sessions Judge while hearing
the appeal had full powers and jurisdiction
at his command to re-appreciate the
evidence to disagree and come to a
different conclusion that of the trial Court,
but
his
jurisdiction
fell
short
of
commenting upon the shortcomings of the
applicant while discharging the duties of
trial Court dealing with the said case. It was
not expected from him to remonstrate that
applicant while discharging the duties of a
trial judge had not written the judgment as
expected from a judicial officer. The said
comment starkly reflects upon the persona
of the judicial officer, and while deciding
the said appeal the Sessions Judge was
expected to judge the case which were
before him, and had no jurisdiction to judge
the judicial officer who was the author of
the judgment. Undeniably the District and
Sessions Judge has administrative control
over the judicial officers subordinate to
him, but the administrative control cannot
be equated to power of superintendence
which is vested only with the High Courts.
The Hon'ble Supreme Court in this regard
has also even cautioned the High Courts to
refrain
from
making
observations
extending to criticism of the subordinate
judicial officer in as much as the said
judicial officer is condemned unheard
which is violative of principles of natural
justice, and it should not be forgotten that
the
subordinate
judiciary
itself
is
dispensing justice and it gives chance to the
litigating party to have a sense of victory
not only over his opponent but also over
the judge who decided the case against
him. This is subversive of the judicial
authority of the deciding judge and such an
unsavory situation leads to the judicial
officer filing a petition which reduces his
status to a litigant and this is clearly not
conducive of judicial functioning. In the
case of In the Matter of "K" A Judicial
Officer (2001) 3 SCC 54 it was observed:-

"Judicial restraint and discipline
are
as
necessary
to
the
orderly
administration of justice as they are to the
effectiveness of the army. The duty of
412 INDIAN LAW REPORTS ALLAHABAD SERIES
restraint, this humility of function should be
constant theme of our Judges. This quality
in decision-making is as much necessary
for Judges to command respect as to
protect the independence of the judiciary.
Judicial restraint in this regard might
better be called judicial respect, that is,
respect by the judiciary. Respect to those
who come before the court as well to other
coordinate branches of the State, the
executive and the legislature. There must be
mutual respect. When these qualities fail or
when litigants and public believe that the
Judge has failed in these qualities, it will be
neither good for the Judges nor for the
judicial process."

12. It should also be remembered that
the conduct of the subordinate judicial
officer
unbecoming
of
himself
and
requiring corrective action should not be
overlooked, but there is an alternative safe
and advisable course available to choose
from which is to intimate the Hon'ble the
Chief Justice or the Administrative Judge
along with the copy of the judgement for
further action, rather than taking up the
matter on the judicial side. The advantage
of this course of action would be, that the
subordinate judge concerned would have an
opportunity to clarify his position and shall
not be condemned unheard.

13. In the case of Amar Pal Singh vs
State of Uttar Pradesh and Another,
(2012) 6 SCC 491 the Apex Court
observed as follows :

"27. A Judge is required to
maintain decorum and sanctity which are
inherent in judicial discipline and restraint.
A judge functioning at any level has dignity
in the eyes of public and credibility of the
entire system is dependent on use of
dignified language and sustained restraint,
moderation and sobriety. It is not to be
forgotten that independence of judiciary
has an insegregable and inseparable link
with its credibility. Unwarranted comments
on the judicial officer creates a dent in the
said credibility and consequently leads to
some kind of erosion and affects the
conception of rule of law. The sanctity of
decision making process should not be
confused with sitting on a pulpit and
delivering sermons which defy decorum
because it is obligatory on the part of the
superior Courts to take recourse to
correctional
measures.
A
reformative
method can be taken recourse to on the
administrative side.

28. It is condign to state it should
be paramount in the mind of a Judge of
superior Court that a Judicial officer
projects the face of the judicial system and
the independence of judiciary at the ground
reality level and derogatory remarks
against a judicial officer would cause
immense harm to him individually (as the
expunction of the remarks later on may not
completely resuscitate his reputation) but
also affects the credibility of the institution
and corrodes the sacrosanctity of its
zealously cherished philosophy. A judge of
a superior Court however strongly he may
feel about the unmerited and fallacious
order passed by an officer, but is required
to
maintain
sobriety,
calmness,
dispassionate
reasoning
and
poised
restraint. The concept of loco parentis has
to take a foremost place in the mind to keep
at bay any uncalled for any unwarranted
remarks.

29. Every judge has to remind
himself about the aforesaid principles and
religiously adhere to them. In this regard it
would not be out of place to sit in the time
machine and dwell upon the sagacious
1 All. Alka Pandey Vs. State of U.P. & Anr.
413
saying of an eminent author who has said
that there is a distinction between a man
who has command over ''Shastras' and the
other who knows it and puts into practice.
He who practises them can alone be called
a ''vidvan'. Though it was told in a different
context yet the said principle can be taken
recourse to, for one may know or be aware
of that use of intemperate language should
be avoided in judgments but while penning
the same the control over the language is
forgotten and acquired knowledge is not
applied to the arena of practice. Or to put it
differently the knowledge stands still and
not verbalised into action. Therefore, a
committed comprehensive endeavour has to
be made to put the concept to practice so
that it is concretised and fructified and the
litigations of the present nature are
avoided.

30. Coming to the case at hand
in our considered opinion the observations,
the comment and the eventual direction
were wholly unwarranted and uncalled for.
The learned Chief Judicial Magistrate had
felt that the due to delay and other
ancillary factors there was no justification
to exercise the power under Section 156 (3)
of the Code. The learned Single Judge, as
is manifest, had a different perception of
the whole scenario. Perceptions of fact and
application of law may be erroneous but
that
never
warrants
such
kind
of
observations and directions. Regard being
had to the aforesaid we unhesitatingly
expunge the remarks and the direction
which have been reproduced in paragraph
three of our judgment. If the said remarks
have
been
entered
into
the
annual
confidential roll of the judicial officer the
same shall stand expunged. That apart a
copy of the order be sent by the Registrar of
this Court to the Registrar General of the
High Court of Allahabad to be placed on
the personal file of the concerned judicial
officer."

14. Considering the dictum of the
Hon'ble Supreme Court and applying it to
the facts of the present case it is apparent
that even though in his decision, the
Sessions Judge has given adequate reasons
for coming to a different conclusion in the
criminal appeal, and setting aside the
judgment of the trial Court, there was no
occasion for him to observe that it was not
expected of the judicial magistrate to write
such a judgment and further that there is
further scope of improvement. Though
these comments on the face of it do not
seem to be adverse but they clearly convey
the dissatisfaction and displeasure of the
District and Sessions Judge towards the
applicant. It has repeatedly been observed
by the Supreme Court as well as by this
Court that criticism and observations
touching
upon
the
judicial
officer
incorporated in judicial pronouncements
have their own infirmities for not only the
judicial officers are condemned unheard of
the harm caused by such criticism or
observations also incapable of being
undone. Sobriety, moderation and reserve
are the greatest qualities of a judicial
officer and he/she should never be divorced
from them.

15. In the present case the
Sessions Judge has re-examined the
entire evidence and came to a contrary
finding and has therefore allowed the
criminal appeal. There was absolutely
no occasion or any need to make any
comments upon the applicant and in
case
he
felt
strongly
about
the
shortcomings of the applicant, then it
was always open for him to inform his
Administrative Judge or Hon'ble the
Chief Justice.
414 INDIAN LAW REPORTS ALLAHABAD SERIES

16. Therefore for the reasons stated
above, I have no hesitation in deleting the
following
observations
made
in
the
judgment and order dated 19.10.2019,
passed by the Sessions Judge, Hardoi in
Criminal Appeal No. 47/2019 - Yamoham
Singh Vs. State of U.P. :-

Þfo}ku eftLVsaV us fcuk lk{; dk
fo'ys"k.k fd;s gq, vihykFkhZ@vfHk;qDr ds fo:)
vkjksi fl) gksus dk tks fu"d"kZ fudkyk gS og =qfViw.kZ
gSA ;gk¡ ;g mYys[kuh; gS fd fo}ku eftLVsaV ds
}kjk tks fu.kZ; fy[kk x;k gS] mlesa vfHk;kstu dsl ds
mijkUr ml lk{; dk o.kZ; fd;k x;k gS tks
vfHk;kstu us izLrqr fd;k gS] ftlesa lHkh lkf{k;ksa dh
eq[; ijh{kk o izfrijh{kk ds c;ku mlh :i esa mrkj
fy;s x;s gSa vkSj fQj mlds ckn fcuk lk{; dk dksbZ
fo'ys"k.k fd;s gq, fo}ku eftLVsaV lh/ks fu"d"kZ ij vk
x;s gSa vkSj ;g fu"d"kZ ns fn;k gS fd vfHk;kstu lk{;
ls vfHk;qDr ds fo:) /kkjk 406] 411 Hkk0na0la0 ds
vkjksi fl) gks jgs gSaA vij eq[; eftLVsaV Lrj ds
U;kf;d vf/kdkjh ls ,sls fu.kZ; dh vis{kk ugha dh tk
ldrhA fo}ku eftLVsaV ls fu.kZ; ys[ku esa lq/kkj
visf{kr gSAß

17. The application is accordingly
allowed.
----------
(2021)01ILR A414
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 13.10.2020

BEFORE

THE HON'BLE RAVI NATH TILHARI, J.

Application u/s 482 No. 15206 of 2020

Rahul Kumar Gaur @ Rahul Sharma
 ...Applicant
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicant:
Sri Jitendra Singh, Sri Ashish Srivastava

Counsel for the Opposite Parties:
A.G.A.

Criminal Law - Criminal Procedure
Code (2 of 1974) - Section 154 -
Second FIR - Not Prohibited - two FIR
for same incident permissible if -
informants
are
different,
accused
persons are different, version of both
the FIR's is different - rival versions in
respect of the same incident do take
different shapes and in that event,
lodgment of two FIRs is permissible -
Prohibition
only
when
-
further
complaint by the same complainant
against the same accused subsequent
to the registration of the case under
the Code (Para 12, 13)

Applicant father lodged F.I.R. against the
son of opposite party no. 2 u/s 302 IPC for
causing death of his son Naresh Chand
(Applicant's brother) - I.O. submitted
charge sheet against son of opposite party
no. 2 - court took cognizance & framed
charges
-
opposite
party
no.2
filed
application u/s 156 (3) Cr.P.C. alleging
applicant killed his own brother Naresh
Chand - Magistrate directed for registration
of F.I.R. - I.O. submitted final report -
opposite party no.2 filed protest petition,
on which summoning order passed against
applicant - Summoning order challenged
inter alia on ground - FIR already lodged by
applicants with respect to the incident of
murder of Naresh Chand, therefore second
FIR at the instance of opposite party no.2
with respect to the same incident was not
maintainable - Held - Second FIR is a
counter FIR and is capable of taking note
of and tried on merits as per law - second
FIR was not filed by the same person, who
had filed the first FIR; it was filed as a
counter complaint; accused persons and
allegations different - No illegality in
summoning order (Para 3, 4, 8, 13)

Dismissed. (E-4)