# Hasae @ Hasana Wae & Ors v. State of U.P. & Anr

- **Citation:** (2021) 9 ILRA 962
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2021-08-05
- **Case number:** Application U/S 482. No. 16310 of 2020
- **Bench:** Ajay Bhanot
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/hasae-hasana-wae-ors-v-state-of-u-p-anr-47424
- **Pages:** 17

## Headnote

(A) Criminal Law - Indian Penal Code,
1860 - Sections 188, 269, 270, 271 -
Epidemic Diseases Act, 1897 - Section 3 -
Foreigners Act, 1946 - Section 14B -
Summoning - Once the government is
seized of the matter, the Court does not
deem it appropriate to say anything which
may fetter the lawful discretion of the
State - Statements made by high officials
on behalf of the Government in Court have
highest sanctity and full weight have to be
given to the same.(Para -64 )

Applicants are foreigners - application registered
- directed against the chargesheet - against the
applicants and the proceedings before the trial
court initiated in pursuance thereof - personal
appearance of the Principal Secretary/Legal
Remembrancer,
Department
of
Law,
Government of U.P., Lucknow to explain the
9 All Hasae @ Hasana Wae & Ors. Vs. State of U.P. & Anr.
963
stand of the State - Certain confidential
documents
were
produced
which
depict
governmental processes and also attest to the
sincerity of the statement made on behalf of the
State before this Court.(Para - 3,4,6,64)

HELD:-The trial has almost concluded and the
statement of the accused under Section 313
Cr.P.C. was made before the trial court and all
evidences have been tendered, the cause of
instituting this Application U/S 482 Cr.P.C. does
not survive. Applicants can take up various
objections on facts, law and evidence before the
trial court .Trial court to decide the trial
proceedings expeditiously. (Para - 66 to 71)

Application u/s 482 Cr.P.C. disposed of. (E7)

List of Cases cited:-

## Text

_Characters 0–39,821 of 56,538. This is a partial read: ask again with offset=39821 for what follows._

962 INDIAN LAW REPORTS ALLAHABAD SERIES
451 and 457 were applicable. The judgment
in the case Sunderbhai Ambalal Desai
(supra), which is an authority relating to
release of vehicles seized in connection
with criminal proceedings under general
law would not be applicable under the facts
of the present case which relate to
proceedings
under
a
special
Act,
particularly in view of the provisions under
Section 5 of the Code.

20. A similar question as to whether the
Magistrate would have jurisdiction to exercise
powers under Sections 451, 452 and 457 of the
Code to direct release of any property which
was subject matter of confiscation proceedings
under Section 72 of the U.P. Excise Act, 19109
before the Collector, was considered in a recent
judgement of this Court in the case of Vikki Vs
State of U.P. and Another10 and taking into
consideration that the Excise Act is a local law
within the meaning of Section 5 of the Code, it
was held that the provisions contained under
Section 72 of the Excise Act would have the
effect of denuding the Magistrate of his power
to pass any order under Section 457 of the Code
for release of any article seized in connection
with an offence purporting to have been
committed under the Act.

21. Applying the aforesaid principle to the
facts of the present case, the vehicle in question
having been confiscated and seized in exercise
of powers under Section 5-A of the PCSA,
which is in the nature of a special Act and a
local law under Section 5 of the Code, the same
would clearly have the effect of denuding the
Magistrate of his power to pass any order under
Sections 451, 452 and 457 of the Code for
release of the vehicle seized for alleged
violation of the provisions of the Act.

22. Having regard to the aforesaid, the
view taken by the courts below in declining
to entertain the application of the applicant
for release of the vehicle during the
pendency of proceedings under the PCSA,
cannot be said to suffer from illegality so as
to warrant interference.

23. The application under section 482
of the Code is thus, dismissed.
----------
(2021)09ILR A962
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: ALLAHABAD 05.08.2021

BEFORE

THE HON'BLE AJAY BHANOT, J.

Application U/S 482. No. 16310 of 2020
With
Application U/S 482. No. 14919 of 2020

Hasae @ Hasana Wae & Ors. ...Applicants
Versus
State of U.P. & Anr. ...Opposite Parties

Counsel for the Applicants:
Sri Adeel Ahmad Khan

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

(A) Criminal Law - Indian Penal Code,
1860 - Sections 188, 269, 270, 271 -
Epidemic Diseases Act, 1897 - Section 3 -
Foreigners Act, 1946 - Section 14B -
Summoning - Once the government is
seized of the matter, the Court does not
deem it appropriate to say anything which
may fetter the lawful discretion of the
State - Statements made by high officials
on behalf of the Government in Court have
highest sanctity and full weight have to be
given to the same.(Para -64 )

Applicants are foreigners - application registered
- directed against the chargesheet - against the
applicants and the proceedings before the trial
court initiated in pursuance thereof - personal
appearance of the Principal Secretary/Legal
Remembrancer,
Department
of
Law,
Government of U.P., Lucknow to explain the
9 All Hasae @ Hasana Wae & Ors. Vs. State of U.P. & Anr.
963
stand of the State - Certain confidential
documents
were
produced
which
depict
governmental processes and also attest to the
sincerity of the statement made on behalf of the
State before this Court.(Para - 3,4,6,64)

HELD:-The trial has almost concluded and the
statement of the accused under Section 313
Cr.P.C. was made before the trial court and all
evidences have been tendered, the cause of
instituting this Application U/S 482 Cr.P.C. does
not survive. Applicants can take up various
objections on facts, law and evidence before the
trial court .Trial court to decide the trial
proceedings expeditiously. (Para - 66 to 71)

Application u/s 482 Cr.P.C. disposed of. (E7)

List of Cases cited:-

1. Naresh Shridhar Mirajkar & ors. Vs St. of
Mah. & anr. , AIR 1967 SC 1

2. Tirupati Balaji Developers (P) Ltd. & ors. Vs
St. of Bihar & ors. , 2004 (5) SCC 1

3. Royal Medical Trust Vs U.O.I. , (2017) 16
SCC 605

4. Santhini Vs Vijaya Venketesh, (2018) 1 SCC
1

5. Ishwari Prasad Vs Mohd. Isa, AIR 1963 SC
1728

6. Alok Kumar Roy Vs Dr. S. N. Sarma & anr.,
AIR 1968 SC 453

7. K.P. Tiwari Vs St. of M.P., 1994 Supp (1) SCC
540

8. Brij Kishore Thakur Vs U.O.I. , (1997) 4
SCC 65

9. A.M. Mathur Vs Pramod Kumar Gupta,
(1990) 2 SCC 533

10. ''K' A Judicial Officer In re case, (2001) 3
SCC 54

11. U.P. Vs Mohd. Naim, AIR 1964 SC 703
12. St. of Bihar Vs Neelmani Sahu, (1993) 9
SCC 211

13. Amar Pal Singh Vs St. of U.., 2012 (6) SCC
491

14. S.N. Dhingra Vs St. (NCT of Delhi), (2014)
13 SCC 768

15. St. of U.P. & ors. Vs Jasvir Singh & ors. ,
2011 (4) SCC 288

16. St. of Guj.Vs Turabali Gulamhussain Hirani &
anr. , 2007 (14) SCC 94

17. St. of U.P. & ors. Vs Dr. Manoj Kumar
Sharma, Civil appeal No. 2320 of 2021

(Delivered by Hon'ble Ajay Bhanot, J.)

1. These Applications U/S 482
Cr.P.C. have been connected and are being
decided by a common judgement.

2. The application registered as
Application under Section 482 Cr.P.C. No.
16310 of 2020 (Hasae @ Hasana Wae and
Others Vs. State of U.P. and another) is
directed against the chargesheet dated
07.06.2020 filed by the investigating
agency in Case Crime No. 198 of 2020
under Sections 188, 269, 270, 271 I.P.C.
and Section 3 of the Epidemic Diseases
Act,1897, and Section 14B Foreigners Act,
Police
Station
Sadar
Bazar,
District
Shahjahanpur and the proceedings before
the trial court taken out in pursuance
thereof.

3. The application registered as
Application U/S 482 Cr.P.C. No. 14919 of
2020 (Daha Dasai and Others Vs. State of
U.P and another) is directed against the
chargesheet dated 10.05.2020 filed by the
investigating agency in Case Crime No.
138 of 2020 under Sections 188, 269, 270
I.P.C. and Section 3 of the Epidemic
964 INDIAN LAW REPORTS ALLAHABAD SERIES
Diseases Act, 1897 and Section 14B of the
Foreigners
Act,
1946
Police
Station
Pilkhuwa, District Hapur, against the
applicants and the proceedings before the
trial court initiated in pursuance thereof.

4. The matter had acquired certain
urgency since most of the applicants are
foreigners. There is also a request of the
Supreme Court to expedite the hearing of
the matter. The matters were connected and
placed before me after nomination for the
first
time
on
08.06.2021.
Certain
impediments were created in the hearing of
the matter which are evident from the
perusal
of
the
ordersheet.
Lack
of
assistance and accountability from the State
side was delaying the hearing.

5. Learned counsels for the applicants
contended with credibility that the capacity
of the judicial process to show that justice
will be seen to be done will be impaired in
case such conduct goes unnoticed and
unaccounted for.

6. When no answer whatsoever was
forthcoming from the State side, the Court
was compelled to direct the personal
appearance of the Principal Secretary/Legal
Remembrancer,
Department
of
Law,
Government of U.P., Lucknow to explain
the stand of the State.

7. The order of summoning was
resisted by State counsels, albeit in
respectful undertones. Reference to the
latest holding of the Supreme Court in
point was alluded to. The question being
relevant is being decided on its merits.

8. The Allahabad High Court has a
history of more than 155 years which
predates most constitutional courts in the
country. Rectitude of conduct of the judges,
adherence to ethical norms by lawyers, and
professional
achievements
which
set
standards
of
excellence
form
the
quintessence of its storied reputation and
animates the Court even today. The
Allahabad High Court has thus earned the
abiding trust of the people of the State by
dispensing fair and impartial justice and by
the probity of conduct of the Bar and the
Bench alike.

9. The Bar of this Court was in the
frontline of the freedom struggle and the
Court has been at the vanguard of
protection of rights and liberties of citizens
in times of maximum peril.

10. The paradox of the Allahabad
High Court is that the unconditional trust of
the citizens is its most precious asset but
also poses the most pressing challenge. The
people of the State of U.P. approach this
Court
with
full
confidence
and
no
constraint. The result of the people of the
State approaching the Court in huge
numbers is the largest docket size in the
country. The workload on Judges in the
Allahabad High Court is the highest in the
country.

11. Unremitting the toil of judges and
unsurpassed industry of lawyers has
allowed the Court to keep the faith and
confidence of the people in its ability to
deliver justice.

12. The distant vision of the founding
fathers was reflected in the creation of the
comity of constitutional courts which
included the High Courts of the States and
the Supreme Court of India. The High
Courts and the Supreme Court have been
vested with analogous powers by the
Constitution
of
India.
Constitutional
autonomy of the High Courts is paired with
9 All Hasae @ Hasana Wae & Ors. Vs. State of U.P. & Anr.
965
the attribute of finality to the holdings of
the Supreme Court as the highest appellate
court in the country. These features are
integral
to
the
scheme
of
judicial
federalism in the Constitution of India.

13. The High Courts possess
supervisory powers over the District Courts
under Article 227 of the Constitution of
India. However it is noteworthy that no
such powers of superintendence over the
High Courts are vested in the Supreme
Court by the Constitution of India. The
reasons are not far to seek.

14.

Considering
the
unique
circumstances of our country, most citizens
are not likely to go beyond the High Court
in search of justice.

15. An overwhelming majority of the
citizens make the Allahabad High Court the
final temple in their pursuit of justice.
Primarily it is the quality of justice and trust
in the institution which persuades the
majority of our citizens to accept the finality
of the judgements of the Allahabad High
Court. High Court is the litigative terminus
for other reasons as well, including litigation
fatigue, financial burden and desire for
closure. The Allahabad High Court is final
because of the citizens' choice as the court of
last resort.

16. Absent powers equivalent and
analogous to that of the Supreme Court or
sans the constitutional autonomy, the High
Courts will not be able to effectively and
faithfully discharge these constitutional
functions and will be unable to retain the
confidence of the people in their capacity to
do justice.

17. Judicial federalism unequivocally
contemplates full and equal autonomy to all
constitutional
courts;
with
the
unconditional
understanding
that
the
Supreme Court is the final court of appeal
in the country. To effectuate the latter part,
there
are
other
provisions
in
the
Constitution like Article 142 and Article
144. The foremost constitutional aim of
dispensing fair and impartial justice to all
citizens and evolution of just laws in a
country as vast and variegated as India
cannot be achieved without a credible
structure
and
effectively
functioning
system of judicial federalism.

18. Judicial federalism is distinct, in
the sense, that unlike federations of States
and legislatures, subjects are not divided
into separate lists. Judicial federalism
envisages
congruent
areas
of
responsibility of the High Courts and the
Supreme Court.

19. The balance in judicial federalism
is delicate. The concept of judicial
federalism has to be shepherded with care
in judicial pronouncements and restraint in
conduct for it to thrive. Judicial federalism
shall prosper or perish depending upon
mutual
respect
between
constitutional
courts, and the quality of the constitutional
dialogues between them.

20. Constitutional autonomy of the
High
Courts
and
comity
of
the
constitutional courts are concepts on which
there is substantial consensus of judicial
authorities.
However,
at
times
the
agreement of authorities in point is
disturbed.
Words
like
"superior"
(as
understood in Indian English) which
occasionally enter the lexicon do not
manifest ambiguity in the constitutional
scheme.
These
constitutional
debates
mostly reflect the dilemma of a hierarchical
society with an egalitarian constitution.
966 INDIAN LAW REPORTS ALLAHABAD SERIES

21.

Dilution
of
constitutional
autonomy of the High Courts would
threaten the concept of judicial federalism
envisaged in the Constitution and affirmed
by judicial precedents. The consequences
of
High
Courts
denuded
of
their
constitutional autonomy would be a decline
in the quality of justice to the people of the
country
and
weakening
in
the
implementation of law. A failure to realise
the preambled aim of securing justice to all
its citizens would stare us in the face, and
loss of faith of the common citizen in the
judiciary will surely follow.

22. The constitutional autonomy of the
High Courts may be diminished by various
factors. Construing appellate jurisdiction as
conferring
supervisory
powers
may
compromise the constitutional autonomy of
the High Courts.

23. Acknowledging the powers of both
constitutional courts namely the High Courts
and the Supreme Court to issue writs, but also
noticing that powers of High Courts under
Article 226 of the Constitution of India are
wider, the Supreme Court in Naresh
Shridhar Mirajkar and others Vs State of
Maharashtra and another1 :

"53. It is well-settled that the
powers of this Court to issue writs of
certiorari under Art. 32(2) as well as the
powers of the High Courts to issue similar
writs under Art. 226 are very wide. In fact,
the powers of the High Courts under Art. 226
are, in a sense, wider than those of this
Court, because the exercise of the powers of
this Court to issue writs of certiorari are
limited to the purposes set out in Art. 32(1) "

24. Writs issued in exercise of
inherent powers of the High Court were not
open to challenge by writ proceedings
before the Supreme Court according to
Naresh
Shridhar
Mirajkar
(supra)
wherein it was held:

"59. If a judicial order like the
one with which we are concerned in the
present proceedings made by the High
Court binds strangers, the strangers may
challenge the order by taking appropriate
proceedings in appeal under Art 136. It
would, however, not be open to them to
invoke the jurisdiction of this Court under
Art. 32 and contend that a writ of certiorari
should be issued in respect of it. The
impugned order is passed in exercise of the
inherent jurisdiction of the Court and its
validity is not open to be challenged by writ
proceedings."

25.
Naresh
Shridhar
Mirajkar
(supra) stating the attributes of a superior
court of record, including the entitlement to
determine for itself questions about its own
jurisdiction by holding:

" 60. There is yet another aspect
of this matter to which it is necessary to
refer. The High Court is a superior Court
of Record and under Art. 215, shall have
all powers of such a Court of Record
including the power to punish contempt of
itself. One distinguishing characteristic of
such superior courts is that they are
entitled to consider questions of their
jurisdiction raised before them. This
question fell to be considered by this Court
in Special Reference No. 1 of 1964 (1965) 1
S.C.R. 413. In that case, it was urged
before this Court that in granting bail to
Keshav Singh, the High Court had
exceeded its jurisdiction and as such, the
order
was
a
nullity.
Rejecting
this
argument, this Court observed that in the
case of a superior Court of Record, it is for
the court to consider whether any matter
9 All Hasae @ Hasana Wae & Ors. Vs. State of U.P. & Anr.
967
falls within its jurisdiction or not. Unlike a
court of limited jurisdiction, the superior
court is entitled to determine for itself
questions about its own jurisdiction. That is
why this Court did not accede to the
proposition that in passing the order for
interim bail, the High Court can be said to
have exceeded its jurisdiction with the
result that the order in question was null
and void. In support of this view, this Court
cited a passage from Halsbury's Laws of
England where it is observed that

"prima facie, no matter is deemed
to be beyond the jurisdiction of a superior
court unless it is expressly shown to be so,
while nothing is within the jurisdiction of
an inferior court unless it is expressly
shown on the face of the proceedings that
the
particular
matter
is
within
the
cognizance of the particular Court."
(Halsbury's Laws of England, Vol. 9, p.
349).

If the decision of a superior Court
on a question of its jurisdiction is
erroneous, it can, of course, be corrected
by
appeal
or
revision
as
may
be
permissible under the law; but until the
adjudication by a superior Court on such a
point is set aside by adopting the
appropriate course, it would not be open to
be corrected by the exercise of the writ
jurisdiction of this Court. "

26. Exploring various facets of the
relationship of the Supreme Court with the
High Courts, the Supreme Court in
Tirupati Balaji Developers (P) Ltd. and
others Vs State of Bihar and others2
stated:

"8.
Under
the
constitutional
scheme as framed for the judiciary, the
Supreme Court and the High Courts both
are courts of record. The High Court is not
a court 'subordinate' to the Supreme Court.
In a way the canvass of judicial powers
vesting in the High Court is wider
Inasmuch as it has jurisdiction to issue all
prerogative writs conferred by Article 226
of the Constitution for the enforcement of
any of the rights conferred by Part III of
the Constitution and for any other purpose
while the original jurisdiction of Supreme
Court to issue prerogative writs remains
confined to the enforcement of fundamental
rights and to deal with some such matters,
such as Presidential election or inter-state
disputes which the Constitution does not
envisage being heard and determined by
High Courts. The High Court exercises
power of superintendence under Article
227 of the Constitution over all subordinate
courts and tribunals; the Supreme Court
has not been conferred with any power of
superintendence. If the Supreme Court and
the High Courts both were to be thought of
as brothers in the administration of justice,
the High Court has larger jurisdiction but
the Supreme Court still remains the elder
brother. There are a few provisions which
give an edge, and assign a superior place
in the hierarchy, to Supreme Court over
High Courts. So far as the appellate
jurisdiction is concerned, in all civil and
criminal matters, the Supreme Court is the
highest and the ultimate court of appeal. It
is the final interpreter of the law. Under
Article 139-A, the Supreme Court may
transfer any case pending before one High
Court to another High Court or may
withdraw the case to itself. Under Article
141 the law declared by the Supreme Court
shall be binding on all courts, including
High Courts, within the territory of India.
Under Article 144 all authorities, civil and
judicial, in the territory of India -- and that
would include High Court as well -- shall
act in aid of the Supreme Court.
968 INDIAN LAW REPORTS ALLAHABAD SERIES

9. In a unified hierarchical
judicial system which India has accepted
under its Constitution, vertically the
Supreme Court is placed over the High
Courts. The very fact that the Constitution
confers an appellate power on the Supreme
Court over the High Courts, certain
consequences naturally flow and follow.
Appeal implies in its natural and ordinary
meaning the removal of a cause from any
inferior court or tribunal to a superior one
for the purpose of testing the soundness of
decision and proceedings of the inferior
court or tribunal. The superior forum shall
have jurisdiction to reverse, confirm, annul
or modify the decree or order of the forum
appealed against and in the event of a
remand the lower forum shall have to rehear the matter and comply with such
directions as may accompany the order of
remand.
The
appellate
jurisdiction
inherently carries with it a power to issue
corrective directions binding on the forum
below and failure on the part of latter to
carry
out
such
directions
or
show
disrespect to or to question the propriety of
such directions would -- it is obvious -- be
destructive of the hierarchical system in
administration of justice. The seekers of
justice and the society would lose faith in
both. "

27. Tirupati Balaji Developers
(supra) explained the word "superior court"
in the following terms:

"24.
The
Supreme
Court,
exercising its appellate jurisdiction, is
called upon to issue directions which is not
only its privilege as appellate forum but
often a necessity for meeting the demands
of justice and effective exercise of appellate
power. Yet, it cautiously abstains from
issuing any 'directions' as such and rather
uses the alternative and polite expressions
like -- "we request the High Court", "the
High Court is expected to", "we trust and
hope that the High Court will/shall",
spelled out by courtesy and the respect and
regards which the Supreme Court has --
and must have -- for High Courts. The
practice has developed and gained ground
as tradition. Barring may be an instance or
two, which too must have been avoidable,
there has been no occasion either for any
disrespect having been shown by the
Supreme Court to the High Court or vice
versa or for this Court having been called
upon to take cognizance of any instance of
disrespect shown to it by any High Court."

"29. While quoting the several
authorities and references as hereinabove
we should not be misunderstood as calling
'the Supreme Court a superior Court and
the High Court an inferior court'; all that
we wish to say is that jurisdictionally, and
in the hierarchical system, so far as the
exercise
of
appellate
jurisdiction
is
concerned, undoubtedly the Supreme Court
is a superior forum and the High Court an
inferior forum in the sense that the latter is
subjected to jurisdiction, called 'appellate
jurisdiction', of the former."

28. Further the importance of
collegiality and the relationship between
the collegiality and independence as spelt
out by Harry T. Edwards, Chief Judge, US
Court of Appeals for the DC Circuit was
invoked to support the narrative in
Tirupati Balaji Developers (supra):

"25. Harry T. Edwards, Chief
Justice, U.S. Court of Appeals for the D.C.
Circuit emphasises self-restraint as helping
build
up
the
Courts
constitutional
legitimacy overtime inasmuch as judicial
self-restraint helps both to generate and to
preserve judicial independence. In the
9 All Hasae @ Hasana Wae & Ors. Vs. State of U.P. & Anr.
969
context of dealing of judges by judges, he
uses the term 'collegiality' and then he
mentions
the
relationship
between
collegiality and independence by saving-

" ... an aspect of judicial practice
that has seemed increasingly important to me
over the last decade: the practice of
collegiality. By collegiality I mean an attitude
among judges that says, we may disagree on
some substantive issues, but we all have a
common interest and goal in getting the law
right. We are, in a word, one another's
colleagues. An attitude of collegiality means,
in practice, that we respect one another's
views, listen to one another, and, where
possible, aim to identity areas of agreement...
Collegiality does mean, however, that, even
when I disagree with another judge, I
recognize that we are part of a common
endeavor, and that each of us is, almost
always, acting in good faith according to his
or her own view of what the law requires...
Because I see myself as engaged in a
common
endeavor
with
my
judicial
colleagues, it follows that I have the interest
of the judiciary as a whole at heart. .. When
there is little or no judicial collegiality, there
is less incentive for judges to exercise selfrestraint. ... collegiality is important not only
for working together effectively, but also at a
deeper structural level. An attitude of judicial
collegiality helps reinforce judges' incentives
to behalf in a principled and responsible
fashion. I think that any discussion of judicial
independence,
either
at
the
level
of
institutions or individuals, should take this
practice of collegiality into account". (See -
Judicial Norms: A Judge's Perspectives -
Washington University School of Law)."

29. The doctrine of precedents is
another
feature
which
predates
the
Constitution. Under Article 141 of the
Constitution of India the law declared by
the Supreme Court is binding on all courts.
Binding nature of the law laid down by the
Supreme Court would exist even if Article
141
was
not
incorporated
in
the
Constitution.
Article
141
of
the
Constitution of India is a constitutional
acknowledgment
of
the
preexisting
tradition of binding nature of judicial
precedents. What constitutes a binding
precedent in a judgment has long been
settled by ancient but constant authorities
of high standing. Cases in point hold that a
judgement is a precedent for what it
decides.

30. The binding force of the
judgement depends upon the facts which
were in issue and the point which was
decided. (Ref: Royal Medical Trust Vs.
Union of India3 ). It is in light of said
authorities that the doctrine of binding
precedents has to be applied. Deviation
from said authorities would not be in
conformity with Article 141 of the
Constitution of India and inconsistent with
the concept of constitutional autonomy of
the High Courts.

31. A constitutional dialogue happens
in the comity of constitutional Courts by
rendering of judgments and use of judicial
precedents. The tone and terms of this
dialogue, have to be marked by civility,
leavened with mutual respect, and powered
by honest convictions. This is predicated
with the certain understanding that the final
word in the controversy rests with Supreme
Court.
The
dialogue
between
the
constitutional courts is one of reason and
purpose, and not of power and authority.

32. The High Courts are best placed
to understand and respond to the local
problems of the State and the special needs
of its people. Upholding the law and
970 INDIAN LAW REPORTS ALLAHABAD SERIES
dispensing justice on a day to day basis in
this setting provides an acute insight to the
High Court judges and imparts great value
to
their
judgements.
Legal
practices
evolved by the High Courts from the
experience gained by proximity to ground
realities of the State and which have
eminently served the cause of justice
should not be readily reversed.

33. Participation in the judicial
process is restricted. Consequences of
judicial
verdicts
can
be
widespread.
Judicial
federalism
by
enlarging
participation in legal debates and deepening
sensitivity in judicial approach enables
constitutional courts to effectively address
myriad facets of justice in a diverse society.
A culture which accords equal respect to
the judgements of the High Courts will
foster rich legal debate across the comity of
constitutional
courts,
give
enduring
foundations to the holdings of the Supreme
Court, and strengthen judicial fedaralism.
When all High Courts have a share in
creating common constitutional values, it
will add a judicial content to the unity of
India. Unity of judicial values contributes
to the inherent oneness of India.

34. The judgement of the Supreme
Court in Santhini Vs. Vijaya Venketesh4
is one instance where the decisions of the
High Courts were given full weight in the
dissenting view rendered by Hon'ble Dr. D.
Y. Chandrachud, J. After a comprehensive
survey of the judgements of the various
High Courts in the country allowing use of
video conferencing in the judicial process,
Hon'ble Dr. D. Y. Chandrachud, J.
(speaking for himself) held as under:

"100. These are words of wisdom
and perspicacity across the spectrum.
Voices from within the judiciary in a
federal
structure
should
merit
close
listening by the Supreme Court."

This statement of law mirrors the
vision of the Constitution makers and also
shines some light on the path to the future.

35. The dissentient view in Santhini
(supra) concludes by finding:

"115. There is, in my view, no
basis either in the Family Courts Act, 1984
or
in
law
to
exclude
recourse
to
videoconferencing at any stage of the
proceedings. Whether videoconferencing
should be permitted must be determined as
part of the rational exercise of judgment by
the Family Court."

Prescience of the minority view
in
Santhini
(supra)
which
had
the
advantage of the judgements of the High
Courts is being borne out during Covid-19
pandemic.

36.

The
Supreme
Court
has
consistently emphasized the importance of
tempered and civil language in the
judgments rendered by all courts and has
set its face against employing strong or
disparaging language in judicial speech.
Civility in judicial speech is the precursor
to judicial wisdom.

37. Untempered language often gives
the impression that it is not the lis which is
being judged but the author of the judgment
who
is
on
trial.
Consequences
of
derogatory and unrestrained language in the
process of courts transcend the facts of the
case. The damage is of a lasting nature. It
sullies the name of the judge who is in no
position to defend himself. It also brings
the entire institution into disrepute which
takes the blow silently. The overall
9 All Hasae @ Hasana Wae & Ors. Vs. State of U.P. & Anr.
971
environment
of
independent
judicial
decision making too is adversely affected.

38. A greater cause of concern is the
consequent reluctance of judges to exercise
lawfully vested constitutional or inherent
powers in the service of justice. The latter
hesitancy is attended by the subtle danger
of losing justice in procedures. This would
imperceptibly but in a certain manner
weaken the constitutional autonomy of the
High Courts, and mark a shift away from
the constitutional vision of comity of
constitutional courts. The result will be
High Courts which are a pale shadow of a
luminous constitutional vision and an
ecosystem which will occasion failure of
justice.

39. The narrative will be fortified by
authorities in point.

40. The issue regarding use of
temperate
language
in
judicial
pronouncements even in the face of
strongly divergent judicial opinion arose
early in the evolution of constitutional law
in Ishwari Prasad Vs. Mohd. Isa5. The
Supreme Court in Ishwari Prasad (supra)
discussed various aspects of judicial
decision making process and emphasized
the use of temperate language in judicial
pronouncements :

"27.... Judicial experience shows
that in adjudicating upon the rival claims
brought before the courts it is now always
easy to decide where the truth lies. Evidence
is adduced by the respective parties in
support of their conflicting contentions and
circumstances are similarly pressed into
service. In such a case, it is , no doubt, the
duty of the Judge to consider the evidence
objectively and dispassionately, examine it in
the light of probabilities and decide which
way the truth lies. The impression formed
determine of conclusion which he reaches.
But it would be unsafe to overlook the fact
that all judicial minds may not react in the
same way to the said evidence and it is not
unusual that evidence which appears to be
respectable and trustworthy to one Judge
may not appear to be respectable and
trustworthy to another Judge. That explains
why in some court on its appreciation of oral
evidence. The knowledge that another factor
and leads to the use of temperate language
and recording judicial conclusions. Judicial
approach in such cases [would] always be
based on the consciousness that one may
make a mistake; that is why the use of unduly
strong words in expressing conclusions or the
adoption of unduly strong intemperate, or
extravagant criticism, against the contrary
view, which are often founded on a sense of
infallibility should always be avoided."

41. A similar controversy regarding the
unconditional necessity of employing civil
phraseology even while expressing deep
disagreement arose before the Constitutional
Bench in Alok Kumar Roy Vs. Dr. S. N.
Sarma And Anr6. In this case the learned
Chief Justice of a High Court while
disagreeing with the order passed by an
Hon'ble Judge of the High Court observed
that the order was passed "in unholy haste
and
hurry".
Certain
other
adverse
observations were also made in that case.

42. The Supreme Court in Alok
Kumar Roy (supra) held against employing
such language or making such remarks in a
judgment against a colleague and observed:

" 8... It is necessary to emphasise
that judicial decorum has to be maintained
at all times and even where criticism is
justified it must be in language of utmost
restraint, keeping always in view that the
972 INDIAN LAW REPORTS ALLAHABAD SERIES
person making the comment is also
fallible.... Even when there is justification
for criticism, the language should be
dignified
and
restrained."
(emphasis
supplied)

43. Reiterating the use of language of
utmost restraint and the impact of scathing
remarks against judicial officers in K.P.
Tiwari Vs. State of M.P.7 Supreme Court
set forth:

"4....A judge tries to discharge his
duties to the best of his capacity. While
doing so, sometimes, he is likely to err. It is
well said that a judge who has not
committed an error is yet to be born. And
that applies to judges at all levels from the
lowest to the highest. Sometimes, the
difference in views of the higher and the
lower courts is purely a result of a
difference in approach and perception. On
such occasions, the lower courts are not
necessarily wrong and the higher courts
always right. It has also to be remembered
that the lower judicial officers mostly work
under a charged atmosphere and are
constantly under a psychological pressure
with all the contestants and their lawyers
almost breathing down their necks - more
correctly up to their nostrils. They do not
have the benefit of a detached atmosphere
of the higher courts to think coolly and
decide patiently. Every error, however
gross it may look, should not, therefore, be
attributed to improper motive. It is possible
that a particular judicial officer may be
consistently passing orders creating a
suspicion of judicial conduct which is not
wholly or even partly attributable to
innocent functioning. Even in such cases,
the proper course for the higher court to
adopt is to make note of his conduct in the
confidential record of his work and to use it
on proper occasions. The judges in the
higher courts have also a duty to ensure
judicial discipline and respect for the
judiciary from all concerned. The respect
for the judiciary is not enhanced when
judges at the lower level are criticised
intemperately and castigated publicly. No
greater damage can be done to the
administration of justice and to the
confidence of the people in the judiciary
than when the judges of the higher courts
publicly express lack of faith in the
subordinate judges for one reason or the
other. It must be remembered that the
officers against whom such strictures are
publicly passed, stand condemned for ever
in the eyes of their subordinates and of the
members of the public. No better device
can be found to destroy the judiciary from
within. The judges must, therefore, exercise
self-restraint. There are ways and ways of
expressing disapproval of the orders of the
subordinate courts but attributing motives
to them is certainly not one of them. That is
the surest way to take the judiciary
downhill.

44. In Brij Kishore Thakur Vs.
Union of India8 the Supreme Court held
that disparaging language against judges
will damage the administration of justice
and impair the confidence of people in the
judicial
system.
Restraint
in
judicial
language
and
humility
in
judicial
functioning
was
advocated
in
A.M.
Mathur Vs. Pramod Kumar Gupta9.
Departure
from
norms
of
sobriety,
moderation
and
reserve
was
not
countenanced by the Supreme Court in ''K'
A Judicial Officer In re case10 and State
of U.P. Vs. Mohd. Naim11.

45. Degrading remarks were made
against the dignity of an Hon'ble Judge of
the Patna High Court in a judgement of the
Supreme Court. The Hon'ble High Court
9 All Hasae @ Hasana Wae & Ors. Vs. State of U.P. & Anr.
973
Judge was compelled to approach the
Supreme Court for expunction of said
remarks, to redeem his honour and to
restore the prestige of his institution in
State of Bihar Vs. Neelmani Sahu12. The
Supreme Court expunged the remarks by
holding:

"1... When this Court uses an
expression against the judgment of High
Court it must be in keeping with the dignity
of the person concerned."

46. Position of law discussed in the
preceding paragraphs was reiterated in
Amar Pal Singh Vs. State of U.P.13 and
in S.N. Dhingra Vs. State (NCT of
Delhi)14. The regularity of authorities
shows constancy of the problem.

47. The damage to the cause of justice
by use of intemperate language in the
judicial process is yet to be fully assessed
but the impact can be felt.

48. Inherent powers are conferred
under Section 482 Cr.P.C. upon the High
Court. Wide ambit of powers are vested in
the High Courts by virtue of Article 226 of
the Constitution of India. The inherent
powers are the cornerstones of the
constitutional autonomy granted to the
High Courts and comprise the basic
structure of the Constitution.

49.

The
understanding
of
particularized circumstances of the society
and the facts of the case is essential to
dispense justice in a State like Uttar
Pradesh. The richness of the State of U.P. is
reflected in the diversity of its heritage. The
disparities in the society are manifested in
the challenges faced by the State and the
complex issues arising before the High
Court.

50. Apathy of the bureaucracy and at
times of citizens, poverty, inequalities,
prejudices, environmental degradation and
above all the need to give hope for justice
are some of the local circumstances which
make the process of law and administration
of justice vibrant and evolutionary concepts
in the State of U.P. In this diverse setting
the High Court often have to evolve
procedures and apply novel approaches by
invoking plenary or inherent powers to
serve the ends of justice. Special facts and
circumstances may cause deviation from
the routine procedure and a nuanced
application of law to dispense justice.

51. At times an interdisciplinary
engagement has to be made by the High
Courts. In such situations for the High
Courts to adhere to a fail safe approach in
all matters or to adopt rote responses in
unique facts of a case may lead to
miscarriage of justice. Procedure should
always remain the handmaiden of justice.
Adherence to procedure imparts credibility
to the process of law. Subservience to
procedure may occasion failure of justice.
Establishing the primacy of the courts
while the litigation is still on foot is an
important
aspect
in
the
process
of
administering justice and implementing the
law. The process cannot be confined to
mere exchange of affidavits or defined in
terms of rigid procedures alone.

52. Among the plenary powers or
inherent powers to which resort is had by
the High Courts in the service of justice are
those vested under Article 226 of the
Constitution of India or under Section 482
Cr.P.C. Summoning of officers or other
parties to the court are at times required in
the facts and circumstances of a case.