# 11 S.C.R. 907 ,, V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. AND ORS

- **Citation:** [2009] 11 S.C.R. 907
- **Court:** Supreme Court of India
- **Decided:** 2008-09-23
- **Case number:** Criminal Appeal No. 521 of 2004
- **Bench:** Dalveer Bhandari, Harjit Singh Bedi
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/11-s-c-r-907-v-k-jain-v-high-court-of-delhi-through-r-g-and-ors-24968
- **Pages:** 46

## Headnote

~
Judiciary - Judicial officer - Strictures and remarks
against judicial officer - Expunging of remarks - Held:
'
Criticism by superior courts must be in a language of utmost c
restraint - Judicial decorum to be maintained at all times and
even where criticism is justified - Duty and obligation of
superior courts to ensure judicial discipline - Principles of law
laid down in the light of decisions made over several decades
- On facts, remarks expunged - Judicial restraint - Judicial D
~.
discipline/decorum - Administrative Law - Principles of
Natural Justice.
Appellant was a judicial officer. Certain observations
were made by High Court in the impugned order, E
whereby he was projected as an incompetent judicial
officer who had no knowledge of basic laws and
jurisprudence and who had no regard for the fundamental
rights of the citizens. According to the impugned order,
,,. .
the appellant was administering justice in the medieval
F
way and in an arbitrary manner.
In appeal to this Court, appellant contended that
High Court was not justified in passing totally unmerited
and undeserved strictures and remarks against him and
prayed for expunging the remarks so made.
G
~
-'
Allowing the appeal, the Court
Received for reporting, on 1.9.2009.
907
H
908
SUPREME COURT REFORTS [2009] 11 S.C.R.
A
HELD: 1. It is the duty and obligation of the higher
courts to modify or set aside orders which are contrary
to law or the facts of the case. This is one of the most
important functions of the superior courts. Indian legal
system acknowledges the fallibility of the judges and
B provides for appeals and r11visions. Judges of the
superior courts while dischargina their duty ought to be
extremely careful before passing imputations, strictures
and remarks against subordinate judicial officers. There
was no justification in passing any imputations, remarks
'{
c or strictures against the appellant. Even if it is assumed
,.
that the order passed by the appellant was wrong or
erroneous, even then the High Court ought to have either
modified or set aside the order, ~ut the High Cou·rt was
not justified in passing totally unmerited, derogatory,
D harsh and castigating remarks against the appellant.
[Paras 41 and 49] [944-A-C; 948-C-E]
.~
Kunhayammed and Ors. v. State of Kera/a and Anr.
(2000) 6 SCC 359; Commissioner of Income Tax, Bombay
v. Amrit Lal Bhogi Lal and Co. AIR (1958) SC 868; Gojt·r
E
Brothers (Pvt.) Ltd. v. Ratan Lal Singh (1974) 2 SCC 453;
-
Kashi Nath Roy v. State of Bihar (1996) 4 SCC 539; Braj
Kishore Thakur v. Union of India and Ors. (1997) 4 SCC 65;
Panchanan Banerji v. Upendra Nath Bhattacharji (1926) I.LR.
49 All 254; H. Daly AIR (1928) Lah 740; State v. Mikanth
F
Shripad AIR (1954) Born. 65; L. Banwanri Lal v. Kundan
'
Cloth Mills Ltd. AIR (1937) Lahore 527; Dr. Raghubir Saran
v. State of Bihar and Anr. AIR (1964) 1; Anjani K. Venna v.
State of Bihar and Anr. (2004) 11 SCC 188; A.M. Mathur v.
Pramod Kumar Gupta and Ors. AIR (1990) SC 1737;
G Niranjan Patnaik v. Sashibhushan Kar and Anr. AIR (1986)
SC 819; Samya Sett v. Shambhu Sarkar and Anr. (2005) 6
SCC 767; /shwari Prasad Misra v. Mohammad Isa (1963) 3
SCR 722; State of M.P. And Ors. v. Nandlal Jaiswal and Ors.
(1986) 4 SCC 566; K.P. Tiwari v. State of M.P. (1994) Supp.
H 1 SCC 540; In re: 'K' A Judicial Officer (2001) 3 SCC 54;
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 909
AND ORS.
Ramesh Chander Singh v. High Court of Allahabad and Anr.
(2007) 4 sec 247, referred to.
•
A
2.1. The following principles of law are laid down in
the light of decisions spreading over a century. Erosion
of credibility of judiciary in the public mind, for whatever
B
reason, is the greatest threat to the independence of
judiciary. Judicial discipline and restraint are imperative
for the orderly administration of justice. Judicial decorum
)
makes it imperative that the judgments and orders must
be confined to the facts and the legal position involved c
in the cases and the courts should not deviate f

## Text

_Characters 0–39,803 of 82,036. This is a partial read: ask again with offset=39803 for what follows._

(2009] 11 S.C.R. 907
,,
V.K. JAIN
A
v.
HIGH COURT OF DELHI THROUGH R.G. AND ORS.
(Criminal Appeal No. 521 of 2004)
SEPTEMBER 23, 2008*
B
[DALVEER BHANDARI AND HARJIT SINGH BEDI, JJ.)
~
Judiciary - Judicial officer - Strictures and remarks
against judicial officer - Expunging of remarks - Held:
'
Criticism by superior courts must be in a language of utmost c
restraint - Judicial decorum to be maintained at all times and
even where criticism is justified - Duty and obligation of
superior courts to ensure judicial discipline - Principles of law
laid down in the light of decisions made over several decades
- On facts, remarks expunged - Judicial restraint - Judicial D
~.
discipline/decorum - Administrative Law - Principles of
Natural Justice.
Appellant was a judicial officer. Certain observations
were made by High Court in the impugned order, E
whereby he was projected as an incompetent judicial
officer who had no knowledge of basic laws and
jurisprudence and who had no regard for the fundamental
rights of the citizens. According to the impugned order,
,,. .
the appellant was administering justice in the medieval
F
way and in an arbitrary manner.
In appeal to this Court, appellant contended that
High Court was not justified in passing totally unmerited
and undeserved strictures and remarks against him and
prayed for expunging the remarks so made.
G
~
-'
Allowing the appeal, the Court
Received for reporting, on 1.9.2009.
907
H
908
SUPREME COURT REFORTS [2009] 11 S.C.R.
A
HELD: 1. It is the duty and obligation of the higher
courts to modify or set aside orders which are contrary
to law or the facts of the case. This is one of the most
important functions of the superior courts. Indian legal
system acknowledges the fallibility of the judges and
B provides for appeals and r11visions. Judges of the
superior courts while dischargina their duty ought to be
extremely careful before passing imputations, strictures
and remarks against subordinate judicial officers. There
was no justification in passing any imputations, remarks
'{
c or strictures against the appellant. Even if it is assumed
,.
that the order passed by the appellant was wrong or
erroneous, even then the High Court ought to have either
modified or set aside the order, ~ut the High Cou·rt was
not justified in passing totally unmerited, derogatory,
D harsh and castigating remarks against the appellant.
[Paras 41 and 49] [944-A-C; 948-C-E]
.~
Kunhayammed and Ors. v. State of Kera/a and Anr.
(2000) 6 SCC 359; Commissioner of Income Tax, Bombay
v. Amrit Lal Bhogi Lal and Co. AIR (1958) SC 868; Gojt·r
E
Brothers (Pvt.) Ltd. v. Ratan Lal Singh (1974) 2 SCC 453;
-
Kashi Nath Roy v. State of Bihar (1996) 4 SCC 539; Braj
Kishore Thakur v. Union of India and Ors. (1997) 4 SCC 65;
Panchanan Banerji v. Upendra Nath Bhattacharji (1926) I.LR.
49 All 254; H. Daly AIR (1928) Lah 740; State v. Mikanth
F
Shripad AIR (1954) Born. 65; L. Banwanri Lal v. Kundan
'
Cloth Mills Ltd. AIR (1937) Lahore 527; Dr. Raghubir Saran
v. State of Bihar and Anr. AIR (1964) 1; Anjani K. Venna v.
State of Bihar and Anr. (2004) 11 SCC 188; A.M. Mathur v.
Pramod Kumar Gupta and Ors. AIR (1990) SC 1737;
G Niranjan Patnaik v. Sashibhushan Kar and Anr. AIR (1986)
SC 819; Samya Sett v. Shambhu Sarkar and Anr. (2005) 6
SCC 767; /shwari Prasad Misra v. Mohammad Isa (1963) 3
SCR 722; State of M.P. And Ors. v. Nandlal Jaiswal and Ors.
(1986) 4 SCC 566; K.P. Tiwari v. State of M.P. (1994) Supp.
H 1 SCC 540; In re: 'K' A Judicial Officer (2001) 3 SCC 54;
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 909
AND ORS.
Ramesh Chander Singh v. High Court of Allahabad and Anr.
(2007) 4 sec 247, referred to.
•
A
2.1. The following principles of law are laid down in
the light of decisions spreading over a century. Erosion
of credibility of judiciary in the public mind, for whatever
B
reason, is the greatest threat to the independence of
judiciary. Judicial discipline and restraint are imperative
for the orderly administration of justice. Judicial decorum
)
makes it imperative that the judgments and orders must
be confined to the facts and the legal position involved c
in the cases and the courts should not deviate from
propriety, moderation and sobriety. [Para 50] [948-E-H;
949-A]
2.2. Majesty of Court is not displayed solely in
cracking the whip on mistakes, inadvertent errors of D
,,
lapses, but by persuasive reasoning so that the similar
"--
errors and mistakes are not repeated by the judicial
officers. Majesty of Court would be enhanced by
practicing discipline and self-restraint in discharging of
all judicial functions. The role of superior courts is like a
E
friend, philosopher and guide of the judiciary subordinate
to it. The judicial officers have to be treated ·111ith parental
care and affection. The approach of the superior courts
..
ought to be correctional and not to be intended to harm
,
or ruining the judicial career of the officers. The superior
F
courts should always bear in mind that the judicial officer
is not before it and should ordinarily refrain from passing
strictures, derogatory remarks and scathing criticism. The
passing of such order without affording a hearing to the
judicial officer is clearly violative of the principles of
natural justice. [Para 50] [949-A-F]
G
•
~
2.3. The superior courts should always keep in mind
that disparaging and derogatory remarks against the
judicial officer would cause incalculable harm of a
permanent character having the potentiality of spoiling
H
910
SUPREME COURT REPORTS [2009] 11 s.c.R.
,_.
A the judicial career of the concerned officer. Even if those
remarks are expunged, it would not completely restore
the harmed judge from the loss of dignity and honour
suffered by him. [Para 50] [949-F-H]
8
2.4. The superior courts should convey its messages
to the concerned judicial officers through a process of
reasoning highlighting the correct provisions of law,
precedents and proper analysis of evidence and material
on record, but rarely by passing harsh and derogatory
c remarks. They must always keep in mind that it is a
herculean task for the judicial officer to get the
derogatory remarks expunged by the superior court. He
is compelled to take assistance from lawyers, who may be
appearing before him. It is embarrassing, humiliating, time
D
consuming and an expensive exercise. [Para 50] [950-AC]
....
2.5. The superior courts must always keep in mind
that much cherished judicial independence must not be
presented only from outside but from within, by those
E who form the integral part of the judicial system. Damage
from within has much larger and greater potential for
harm than danger from outside. [Para 50] [950-C-D]
2.6. The superior courts should not use strong
.;
derogatory, disparaging and carping language while
'
F criticizing the judicial officers. They must always keep in
mind that, like all other human beings, the judicial officers
are also not infallible. Any remarks passed against them
may result in incalculable harm resulting in grave
G
injustice. The superior courts judges should not be, like
a loose cannon, ready to inflict indiscriminate damages
whenever they function in judicial capacity. They should
...
~
keep in mind that infliction of uncalled for, unmerited and
undeserved remarks clearly amount to abuse of the
process of court. It must be remembered that the
H subordinate judicial officers at times work under charged
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 911
AND ORS.
atmosphere and are constantly under psychological A
pressure with all the contestants and their lawyers almost
breathing down their necks and more correctly upto their
nostrils. [Para 50) [950-E-H; 951-A-C)
2.7. To err is human and no one is infallible. A j~dge 8
who has not committed an error is yet to be born. Judicial
decorum has to be maintained at all times and even
where criticism is justified. It must be in a language of
utmost restraint always keeping in view that the person
marking the comment is also fallible. Judges of the
superior courts' have a duty and obligation to ensure C
judicial discipline and respect for judiciary from all
concerned. The respect for the judiciary is not enhanced
when judges at the lower level are criticized intemperately
and castigated publicly. It is the duty and obligation of the
judges of the superior courts to ensure that D
independence of judiciary is not compromised and every
judicial officer should feel that he can freely and fearlessly
give expression to his own opinion. This is absolutely
imperative in maintaining the independence of judiciary.
[Para 50) [951-C-H]
E
3. On consideration of the totality of the facts and
circumstances, the impugned order passed by Single
,
Judge cannot stand scrutiny of law as far as passing the
,..
remarks and strictures against the appellant were F
concerned and consequently the impugned order is set
aside to the extent of expunging the remarks made
against the appellant in the said order. [Para 51) [952-8C)
Case Law Reference:
(2000) s sec 359
AIR (1958) SC 868
referred to
referred to
Para 8
Para 8
' G
H
912
SUPREME COURT REPORTS [2009] 11 S.C.R.
A
(1974) 2 sec 453
referred to
Para 8
'~
(1996) 4 sec 539
referred to
Para 22
(1997) 4 sec 65
referred to
Para 24
B
(1926) I.LR. 49 All 254
referred to
Para 25
AIR (1928) Lah 740
referred to
Para 26
AIR (1954) Born. 65
referred to
Para 27
AIR (1937) Lahore 527
referred to
Para 28
c
AIR (1964) 1
referred to
Para 29
(2004) 11 sec 188
referred to
Para 30
AIR (1990) SC 1737
referred to
Para 31
D
AIR (1986) SC 819
referred to
Para 34
• ..
(2005) 6 sec 767
referred to
Para 35
(1963) 3 SCR 722
referred to
Para 38
E
(1986) 4 sec 566
referred to
Para 39
(1994) Supp. 1 sec 540 referred to
Para 40
(2001) 3 sec 54
referred to
Para 42
(2001) 4 sec 247
referred to
Para 44
...
F
CRIMINAL AP PELLA TE JURISDICTION : Criminal Appeal
No. 521 of 2004.
From the Judgment & Order dated 14.7.2003 of the High
G Court of Delhi in Criminal Misc. (M) No. 522 of 2003.
T.R. Andhyarujina, Prashant Bhushan, Rohit K. Singh and
'
Somesh Rattan for the Appellant.
•
B.B. Singh, T.A. Khan, B.K. Prasad, P. Parmeswaran, A
H
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 913
AND ORS.
,_/
Mariarputham and Aruna Mathur, (for Arputham, Aruna & Co.) A
for the Respondents.
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. This appeal is directed
B
against the order dated 14th July, 2003 passed by the High
Court of Delhi in Criminal Misc. (M) No.522 of 2003.
·'
2. The appellant, a judicial officer of the Delhi Higher
#
Judicial Service, is aggrieved by the remarks and strictures
which have been passed by the High Court of Delhi against c
him. According to the appellant, the remarks were totally
undeserved, unjustified, unmerited and unnecessary for
deciding the issue involved in the case. In this appeal, he has
prayed for expunging and deleting the remarks passed by the
High Court.
D
•
;
3. Brief facts which are necessary to dispose of this appeal
are recapitulated as under:
The appellant, atthe relevant point of time, was posted as
a Special Judge dealing with the case of Central Bureau of E
Investigation (for short, 'CBI') at New Delhi. The appellant all
through has been an outstanding officer of the Delhi Higher
Judicial Service and consistently getting outstanding (A+) ACRs
..
in his entire service career .
"
F
4. Respondent No.3 Chander Prakash, a non-resident
Indian (NRI) along with others were ctiarge-sheeted by the CBI
under section 120-B read with sections 420/467/468/471 of the
Indian Penal Code (for short, 'IPC') and section 13(2) read with
section 13(1)(d) of the Prevention of Corruption Act, 1988. G
Respondent No.3 Chander Prakash was granted bail on
~·
1.3.2002 subject to the condition that j1e will not leave the country
~
without permission of the court. On 4.3.2002, respondent no.3
filed an application seeking permission to go to Hong Kong.
The said application was opposed by the CBI in writing on the
H
ground that respondent no. 3 might flee from justice and he may
914
SUPREME COURT REPORTS [2009] 11 S.C.R.
A not be available for facing the trial. During the pendency of the
said application, to assure the court and the CBI that
respondent no.3 Chander Prakash would be available for the
trial, respond~nt no.3 expressed willingness to deposit the
passports of his wife and mother, who are respondent nos.4
a and 5 in this appeal, before the CBI Court. Respondent no.3
Chander Prakash presumably with the consent and
concurrence of respondent nos.4 & 5 volunteered to deposit
the passports of respondent no.4 and 5. Pursuant to the offer
made by respondent no.3, vide order dated 4.3.2002,
C respondent no.3 was granted permission to go to Hong Kong
after depositing the passports of respondent nos.4 & 5. They
were not aggrieved by the order at any point of time because
the order was in the nature of a consent order rather than strict
directions of the court. The order passed by the appellant dated
D 4.3.2002 reads thus:
E
F
G
H
"ORDER
Case taken up today on the application of Chander
Parkash for permission to go Hong Kong and for return of
his passport. He states that he is an NRI and is working
in Hong Kong. Keeping in view the fact that he had
appeared in response to the summons issued by this court
and he has expressed his willingness' to deposit the
passports of his wife and his mother in the court in order
to ensure that he shall not abscond during trial, he is
permitted to go to Hong Kong subject to the condition that
he shall remain present on the next date of hearing and
shall 'file an FDR of Rs.one lac today itself. On filing of FDR
and· passports of the mother and wife of the accused
Chander Parkash, his passport be released to him.
Accused Chander Parkash has already given his office
address of the Hong Kong in the application. He is also
directed to give his residential address in Hong Kong to
the court He shall deposit the passport in court on return
from Hong Kong.
..
..
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 915
AND ORS. [DALVEER BHANDARI, J.] .
Special Court I New Delhi" A
5. An application dated 10.8.2002 was filed after more
than five months of the order dated 4.3.2002 in which
respondent nos. 4 and 5 prayed that their passports be returned
on the ground that respondent no.5 wanted to get her treatment
8
done by respondent no.3 who at that time was in Hong Kong.
The CBI opposed the application in writing. Vide orders dated
14.8.2002, the application was rejected by the appellant. It was
noted in the order that respondent nos.4 & 5 had willingly
deposited their passports and, therefore, it would not be
appropriate to release their passports till respondent no.3 C
(accused Chandra Prakash) returns from abroad and seeks
fresh permission to go abroad without depositing the passports
of respondent nos. 4 and 5.
6. The order dated 4.3.2002 passed by the appellant was D
challenged by respondent nos.4 & 5 by filing Criminal Misc.
(Main) No.4200/02 in Criminal Misc. (M) No.1043/02 before the
High Court of Delhi. The High Court vide order dated 9.10.2002
directed release of passport only of respondent no.4 for a
period of two months as respondent no.3 was admitted in the
E
hospital. She was directed to return and surrender her passport
thereafter. The said order is reproduced hereunder:
"IN THE HIGH COURT OF DELHI AT NEW DELHI
CRIM MM 1043/2002
F
Chander Prakash
C.B.I.
CRL M. 4200/2002
.. . .. Petitioners
Through Mr. Jatan Singh
Versus
..... Respondent
Through Mr. A. K. Dutt
G
ORDER
09.10.2002
H
916
SUPREME COURT REPORTS [2009] 11 S.C.R.
A
The applicants are the mother and wife of the
accused/petitioner. The petitioner has through this petition
'•
challenged the impugned order dated 4th March, 2002
passed by the learned ASJ permitting the accused to go
to Hongkong subject to the condition that he shall deposit
B
passports of his wife and mother and shall deposit an FDR
of Rs. One lac and after doing so his passport shall be
released to him. After complying with this condition the
petitioner's passport was released and he is presently
stationed at Hongkong. It is stated that there he is admitted
c
in the Hospital and since there is no family member to look
after him the mother and the wife be permitted to go there
and, therefore, their passports be released. It appears that
the condition of depositing the passports of the mother and
the wife of the accused was imposed in order to ensure
D
and procure the presence of the accused on the dates of
hearing. However, the record shows that the accused has
been regularly attending the hearing. However Counsel for
the petitioner states that he shall be satisfied if the passport
...
of the wife of the petitioner is released facilitating her to
E
go to Hongkong to care for her husband. Since the
applicant wife is not an accused nor a surety, the request
of the counsel for the petitioner appears to be justified. Let
the passport of the wife of the accused Anjana Batheja be
released for a period of two months whereafter she will
return and surrender the passport so as to facilitate the
•
F
decision of the main petition.
~
Dasti.
Sd/-
Judge, High Court
G
October 09, 2002."
7. It may be pertinent to mention that Criminal Misc. (M)
..
No.1043/02 was finally disposed of by the High Court vide
•
order dated 20.11.2002 without setting aside or adversely
H commenting on the orders dated 4.3.2002 and 14.8.2002
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 917
AND ORS. [DALVEER BHANDARI, J.]
passed by the appellant. The High Court did not adversely
A
....
comment on the order because the High Court did not find
anything erroneous, unreasonable or obnoxious in the said
order. It is astonishing that when the same order of the appell~nt
dated 4.3.2002 again came up for consideration on 14.7.2003,
the High Court adversely commented on the order of the
B
appellant and passed the impugned order dated 14.7.2003
which is reproduced as under:
-"
"IN THE HIGH COURT OF DELHI
..
c
Crl. M (M) No. 522/2003
Date of Decision: July 14, 2003
Smt. Anjana Batheja & Anr.
.. .. Petitioner
Through Mr. Jatan Singh, Adv.
Versus
D
i
Central Bureau of Investigation
-... Respondent
~
Through Mr. H.J.S. Ahluwalia, Adv.
1.
Whether the reporters of local papers may be
allowed to see the judgment?
E
2.
To be referred to the report or not?
3.
Whether the judgment should be referred in the
..
Digest?
F
_;
ORAL JUDGMENT
1. Mindboggling situation has arisen in these proceedings.
One Chander Prakash is facing trial before Sh. V. K. Jain,
Special Judge CBI Court Delhi for the offences punishable
G
under Sections 420/467/468/471 read with Section 120B of the Indian Penal Code and Sections 13(2), 13(1)(d)
-<
of Prevention of Corruption Act. He is on bail. Since he
l
~
was on bail, he made an application for release of his
passport for going to Hong Kong where he has a business.
H
'
918
SUPREME COURT REPORTS [2009] 11 S.C.R.
A
In order to ensure his presence on the dates of hearing,
~ ..
Learned Special Judge has passed an order which has
overtones of keeping his mother and wife as hostages as
he has directed the petitioner not only to deposit their
passports but also deposit Rs.1 lac by way of F.D.R. if he
B
wants his passport to be released.
2. Forced by circumstances, the petitioner after depositing
their passports went to Hong Kong where he fell seriously
ill. There was nobody to look after him at Hong Kong.
~
c
Consequently, his mother and wife moved an application
for releasing their passports before the learned Special
Judge but their applications were dismissed vide order
dated 4.3.2002 though an offer to keep the sister of the
accused as another hostage was made as they offered to
D
deposit the passport of the sister of the accused and also
to furnish the bank guarantee.
3. Through this petition they have challenged not only the
..
legality and rationality of the impugned order but its
propriety and harshness. It is pertinent to mention here that
E
since the release of accused, he has been regularly
attending court proceedings even during brief sojourns to
Hong Kong. More so his appearance was also exempted
till the framing of charges.
F
4. Not only on the face of it but even on the premise of
..
layman's understanding condition of releasing the passport
'
of the accused subject to deposit of passports of his
mother and wife and deposit of Rs. One lac by way of
F.D.R. appears to be highly irrational, illegal, harsh and
difficult to ram down the throat as it is unknown to the
G
criminal jurisprudence.
5. Every criminal court is a creature of Criminal Procedure
).
Code and as such is neither above it nor can rise above
it. The court is empowered to impose any kind of condition
H
upon the accused to ensure his presence but to curtail or
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 919
"""
AND ORS. [DALVEER BHANDARI, J.)
~
scuttle the liberty of other members of his family who are A
in no way connected with the crime is to take away
..
precious fundamental right of free moveme11t .Jf 0..1
individual granted by the Constitution. This is nothing but
a medieval way of administering justice when family
members used to be kept as hostages in lieu of either 8
release of their detained kith and kin or procure the
surrender of the wanted man.
~
6. Once passport of the accused was released on the
>
condition of filing FDR of Rs. 1 lac though the legality of c
such a condition is in serious doubt imposing of any other
condition or order for depositing the passports of his
Jllother and wife was beyond the judicial domain of the
court.
7. if the learned Special Judge was of the opinion that the D
..
release of passport to the accused was not safe as he
_.·
may flee from justice, such a request could have been
rejected and if allowed any other reasonable kind of
condition could have been imposed upon him and him
alone.
E
8. The impugned order is wholly illegal, irrational and hits
· at the foundation of fundamental right of a person and
jurisprudential structure and is therefore difficult to sustain
..
and has to go. Merely because the accused had shown
F
>
his willingness to ensure his appearance on the next date
of hearing by way of depositing the passports of his wife
and mother does not mean that the Court should also pass
the order directing him to do an act for which the accused
had neither any legal authority nor any legal right. Every
G
individual is independent entity. How can on the statement
of an accused passports of his family members can be
"'1
ordered to be deposited. To imagine this is beyond
comprehension.
9. Without tarrying further on this aspect and concept of H
920
SUPREME COURT REPORTS [2009] 11 S.C.R. -
A
liberty and freedom of movement of the citizens, I feel
'.I.
persuaded to set aside the impugned order which cannot
stand even prima facie judicial scrutiny.
•
10. In the result the petition is allowed. The impugned order
B
is hereby set aside. Passport of the petitioners, if
deposited, shall be released to them forthwith.
11. For guidance, copy of this order be sent to all the
judicial officers.
~
c
July 14, 2003
Sd/-
Judge"
8. The appetlant submitted that the order dated 4.3.2002
D
passed by him stood merged in the order of the Hon'ble High
Court dated 9.10.2002. It is settled proposition of law, reiterated
in Kunhayammed & Others vs. State of Kera/a and another
•
(2000) 6 SCC 359, Commissioner of Income Tax, Bombay
'
v. Amrit Lal Bhogi Lal & Co., AIR 1958 SC 868 and Gojer
Brothers (Pvt.) Ltd. v. Ratan Lal Singh (1974) 2 SCC 453 that
E once the order of a lower court has been challenged before a
superior forum and has been reviewed, modified or affirmed,
.
it is the order of the superior forum, which alone subsists and
is operative. Therefore, it was not permissible for the petitioner
to review or modify the order dated 4.3.2002.
,.
F
'
9. The appellant is aggrieved by the following observations
made by the High Court in its impugned order dated 14.7.2003:
"1. Mindboggling situation has arisen in these
G
proceedings ....... In order to ensure his presence on the
date of hearing, learned Special Judge has passed an
order which has overtones of keeping his mother and wife
as hostages .....
•
4. Not only on the face of it but even on the premise of
H
layman's understanding condition of releasing the passport
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 921
,.
AND ORS. [DALVEER BHANDARI, J.]
~)
of accused subject to deposit of passports of his mother A
and wife and deposit of Rs.one lac by way of FDR appears
•·
to be highly irrational, illegal, harsh and difficult to ram down
the throat as it is unknown to the criminal jurisprudence.
5 ..... This is nothing but a medieval way of administering
B
justice when family members used to be kept as hostages
in lieu of either release of their detained kith and kin or
procure the surrender of the wanted man.
~
.~
8. The impugned order is wholly illegal, irrational and hits
at the foundation of fundamental right of a person and c
jurisprudential structure."
10. The order dated 14.07.2003 was circulated to all the
judicial officers and widely reported in the newspapers.
The appellant was projected as an incompetent judicial D
officer who had no knowledge of even basic laws and
..
jurisprudence and who had no regards of the fundamental
...
rights of the citizens. According to the impugned order, the
appellant was administering justice in the medieval way
and in an arbitrary manner.
E
11. Mr. T.R. Andhyarujina, learned senior advocate and Mr.
Prashant Bhushan, learned advocate appearing on behalf of
the appellant submitted that the appellant has seriously suffered
on account of the Hon'ble Judge of High Court of Delhi who
I
passed the impugned observations and remarks, taking on
F
record an erroneous statement of facts regarding the working
of the appellant as a Special Judge while deciding the Criminal
Misc. (M) No.3686/02, 3687/02 and 3688/02 titled P. Dass
Gupta v. State (through CBI) vide order dated 13.11.2002. In
para 4 of the order dated 13.11.2002, the learned Judge of the G
High Court noted:
,,,
l
"Learned senior counsel for the petitioner states at the Bar
that this particular Special Judge has not granted bail to
any of such accused who has appeared at the time of filing
H
922
SUPREME COURT REPORTS [2009] 11 S.C.R.
...
A
of challan by CBI in spite of the fact that CBI did not take
~~
such accused into custody."
12. Learned counsel appearing for the appellant submitted
•
that though grant or refusal of bail is of no consequence, but
B the correct factual positior: was that till the date of the order
dated 13.11.2002 passed by the High Court, 30 accused
charge-sheeted by the CBI were granted bail whereas 18 such
accused were refused bail by the appellant. Thereafter,
erroneous statement of facts was recorded by the High Court
>
c without any verification and without calling for any information,
record or comments from the appellant. The appellant is
seriously aggrieved by the unmerited, unjustified and
unwarranted remarks passed by the learned Judge of the High
Court. Learned counsel submitted that the appellant submitted
D
that he passed the order dated 04.3.2002 because respondent
no.3 expressed his willingness to deposit the passports of his
wife and mother, respondent nos.4 & 5 in the court presumably
with their consent and concurrence. The order was almost in
...
the form of a consent order.
E
13. Mr. Andhyarujina, learned counsel for the appellant also
submitted that the High Court has been passing similar orders
for a long time and as a Subordinate Judicial Officer he was
duty bound to follow the same.
F
14. The learned counsel for the appellant, in order to
>
strengthen his argument, gave reference to the orders passed
by a Division Bench of the High Court in CW No.118 and CM
No.225of1983 on 20th January, 1983. The relevant part of the
said order is reproduced as under:
G
"ORDER
20.1.83
Present:Mr. Soli J. Sorabjee, Senior
Advocate.with Mr. Harish Salve for the
)..
petitioner.
H
Mr. D. P. Wadhwa for the respondents.
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 923
AND ORS. [DALVEER BHANDARI, J.]
p
C.W. 118 and C.M. 225 of 1983
A
...
1. Mr. Wadhwa prays for time to file answer tu show cause
and reply to the application. The same may be filed within
four weeks with copy to counsel for the petitioner.
Rejoinder, if any, within two seeks thereafter. Case for 8
March 11, 1983.
,
2. Pending final determination of the matter, we order that
~
without prejudice to the contentions raised by the petitioner
or the contentions that may be raised by the respondents,
petitioner be permitted to visit the United States of America c
so as to return to India on or before March 2, 1983 subject
to his fulfilling the conditions that we se hereafter.
lllllllit./
3. Petitioner shall before leaving India, in additional to the
bonds already given in the sum of Rs.1,00,000 with two D
..
sureties, give additional security for Rs.2,00,000 to the
,,
satisfaction of the Joint Registrar of this Court. The ~aid
surety bond will be in favour of the Directorate of
Enforcement. Petitioner will give an undertaking to this
Court by an affidavit that he would appear before the E
Enforcement Officer, New Delhi to 10 1.m. on March 7,
1983.
..._
4. The petitioner shall also before leaving lndia'file photo
i
copy of his current passport duly certified by him as true
copy with the Enforcement Directorate. Photo copies may
F
be prepared by the Directorate at petitioner's cost.
5. Petitioner on March 7, 1983 produce in the Enforcement
Directorate transcript of his bank account or accounts in
United States of America from the period January 1, 1978 G
till three days before his departure from America.
A
l
6. Petitioner will cause the current passport of his wife and
his child to be deposited with the Registrar of this Court
along with an undertaking on affidavit by his wife to this
H
court that in case the petitioner does not return to India on
A
B
c
D
E
F
924
SUPREME COURT REPORTS [2009] 11 S.C.R.
or about March 2, 1983 and does not appear before the
Enforcement Officer on March 7, 1983, the petitioner's wife
will surrender herself to the Enforcement Officer for being
detained in civil prison till such time as the petitioner
comes and surrenders himself.
7. On return of the petitioner to Delhi and on his appearing
before the Enforcement Officer, the petitioner will deposit
his passport with the Enforcement Officer. The additional
sureties of Rs.2 lakhs each will then stand discharged. The
passport of the wife of the petitioner shall forthwith be
returned on such appearance and the undertaking of the
wife of the petitioner would then stand discharged.
8. We are told that petitioner's child does not have a
passport nor any endorsement with regard to his child is
made either on the petitioner's passport or on the passport
of his wife. On this aspect petitioner will file an affidavit in
this court along with other papers which he has directed
to file.
9. The matter may be placed before the Joint Registrar (J)
on January 21, 1983 for complying with this order. True
copies of this order may be given both to the petitioner and
to Mr. Wadhwa.
January 20, 1983."
Sd/-
CHIEF JUSTICE
Sd/-
B.N. KIRPAL, J.
G
15. The High Court of Delhi in Criminal M. (M) NO. 50/98
2.2.1998 passed the following order in similar terms:
H
"ORDER
Present:
Ms Geeta Luthra with
Mr. P. K. Dubey for petitioner.
...
-
-
\
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 925
AND ORS. [DALVEER BHANDARI, J.]
~>
Ms. Mukta Gupta for the State.
A
•
Crl. M (M) NO. 50/98
This petition is for permission to go abroad for
business purposes. The latest itinerary filed by the
petitioner along with the application dated 13.1.1998, has
B
become infructuous as the departure date from Delhi was
20th January, 1998. Learned counsel for the petitioner says
A
that in case the permission is granted, a revised itinerary
•
will be supplied to the State. However, the period of
remaining abroad would not be more than two months.
c
Heard the learned counsel for the parties.
-
Learned counsel· for the respondent says that
investigation is almost complete and the challan would be
filed and, in these circumstances, joining of the D
~
investigation may not be necessary by the petitioner but_
'
in case permission to go abroad is granted to the
..
petitioner, it has to be ensured that he comes back and
faces the trial. For that it has been suggested that a bank
guarantee of rupees one lac may be given and the places
E
of stay abroad may be given.
In view of the facts and circumstances of the case,
~
the petitioner is allowed to go abroad on the following
J
conditions:
F
1. He shall furnish a bank guarantee of rupees fifty
thousand;
2. One surety of rupees twenty five thousand;
3. Personal bond of rupees twenty five thousand;
G
><,
4. The petitioner shall give the revised itinerary which
will not be for more than two months;
I
5. Before starting the journey, the petitioner shall give
H
926
SUPREME COURT REPORTS [2009] 11 S.C.R.
A
the copy of itinerary to 1.0. SI Dinesh Kumar and file a copy
'•
of the same in court;
~
6. in case the petitioner can give the addresses
where the petitioner would be staying abroad, that shall
B
also be given to 10 in advance;
7. Petitioner shall deposit passport of his wife Ms .
.Perwaiz Johan and passport of his eldest daughter Jauvier
~
Nayyar with the concerned court of Magistrate.
'
c
The Bank guarantee, the personal bond and the
surety will be to the satisfaction of the conerned court of
Magistrate. The passport of the petitioner will be released
'
to him for going abroad on terms ordered above and the
-
same shall be deposited after the journey abroad with the
D
concerned Magistrate.
Dasti to counsel for both parties.
"' •
The main petition and all pending Crl. Ms. are
disposed of.
..
E
February 02, 1998
Sd/-
A.K. Srivastava,
Judge"
)
F
16. The appellant being a subordinate judge of the Delhi
Higher Judicial Service was duty bound to follow these ordl?rs
and while passing the order dated 4.3.2002 he followed the
pattern of the orders delivered by the Delhi High Court.
G
17. Learned counsel further submitted that the High Court
even after the impugned order dated 14.7.2003 passed the
similar order dated 31.3.2006, whic~ reads as under:
)o.
"IN THE HIGH COURT OF DELHI AT NEW DELHI
H
31.03.2006
V.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 927
AND ORS. [DALVEER BHANDARI, J.]
-
-~
~j.!
Present: Mr. R~jiv Nayar, Sr.Advocate with Mr. R. N.
A
Karanjawala,
Mr. Viraj Datar, Sandeep Mittal and Mr. Sarvesh Singh for
the appellant with appellant in person.
Ms. Mukta Gupta with Mr. Rajat Katya! for the State.
B
LPA No. 530/2006 and CM No. 4816/2006
~ •
This is an appeal preferred by the appellant Bina K .
Ramani from the order dated 24.03.2006 and 29.03.2006 c
of the learned Single Judge, whereby he declined to pass
an immediate order enabling the petitioner to. travel
abroad. Learned Single Judge held that in the
--<
circumstances, there was need to investigate the matter
and permission could not be granted without affording a D
reasonable opportunity of hearing to the respondent. The
;_
matter was posted for 5th April, 2006. Appellant moved
•
another application, which was listed on 29.03.2006. The
said application was also ordered to be posted to
5.4.2006 on account of non-availability of the Senior
E
Counsel.
Appellant has assailed both these orders in appeal.
Appellant's daughter Malini Ramani and Mr. George
~
Mailhot were the petitioners in the writ petition, wherein
..
lookout notices issued were challenged. Interim F
application was moved on the plea that wedding of the
appellant's niece, i.e., her real brother's daughter, was
scheduled for 31.03.2006. Permission was sought to travel
abroad. The appellant wishes to leave on the intervening
night of 24th and 25th March, 2006 to attend the G
celebrations commencing from 29th
1 March, 2006. The
....
appellant, Mr. George Mailhot and her daughter,
'\
petitioners in the writ petition, wanted to join in earlier for
the marriage preparations. It is submitted that posting the
application to 5.4.2006, when all the functions would be
H
928
SUPREME COURT REPORTS [2009] 11 S.C.R.
\. ....
A
over, rendered the appellant's prayer and application
.,
infructuous. Learned Senior Counsel for the appellant
submits that the appellant, till date, is not accused of any
offence. Rather, she was a witness whose evidence had
been material for the State. Further, the appellant had fully
B
cooperated with the State in prosecution of the Jessica Lal
murder case. Learned counsel also submits that no
statutory order under the Foreigners Act has been passed,
•
prohibiting the travel or departure of the appellant.
)<
c
Ms. Mukta Gupta, learned counsel for the State, opposes
the prayer for permission to travel abroad. She submits that
the appellant is a British
Passport holder and a foreign national. She submits
D
that recently, FIR No.120/2006 dated 6th March, 2006
under Sections 120-8/201 /218/34 I PC has been
,.I •
registered at P.S. Mehrauli, with regard to destruction of
evidence against unnamed persons. She submits that the
appellant and her daughter Malini Ramani and Mr. George
E
Mailhot are suspects in the said FIR as she claims that the
scene of occurrence was tampered with and the blood
stains had been washed away. On the question of
permission being granted to go abroad, she submits that
the correspondence attached by the appellant does not
loo
inspire confidence or conclusively show the relationship of
•
F
the appellant. The functions scheduled for 29th, 3oth and
31st March, 2006, i.e., the main functions for the wedding,
are/would be over and there would be no fruitful purpose
in considering grant of permission at this stage.
G
She further states that when the appellant, her
daughter Malini Ramani and Mr.George Mailhot were
>
called for investigation, they did not cooperate and their
participation was an eye wash and ineffective answers
H
were given. It is submitted before us that the appellant is
IV
/.K. JAIN v. HIGH COURT OF DELHI THROUGH R.G. 929
AND ORS. [DALVEER BHANDARI, J.]
required to join in for investigations on 4th April, 2006, to
A
give the remaining replies to the notices.
Learned counsel for the appellant submits that the
appellant along with Mr.George Mailhot and her daughter
Malini Ramani have been staying in India for over two
decades and have properties and roots in India. From
1999 onwards, the appellant has travelled numerous times.
B
To re-assure the court regarding the presence and
availability of the appellant, Mr. George Mailhot and her
daughter Malini would deposit their passport with the
C
Investigating Officer Mr. M.K. Sharma, ACP. Besides, the
appellant undertakes to the court that she will return by 3rd/
4th April , 2006 and will be available for joining
investigations on 4th April, 2006 and would duly furnish the
replies of the notices without seeking further extension in
. this regard. Learned counsel for the appellant submits that
D
the appellant would deposit today itself, a demand draft
in the sum of Rs.5 lacs favouring the Registrar General of
the High Court of Delhi as security for her due compliance
with the aforesaid undertakings.
E
We prima facie find that the appellant has been
staying in India for a number of years. She has travelled
abroad a number of times as is revealed from her
Passport. While the appellant has missed out the main
wedding and some functions of her niece, learned Senior
F
Counsel submits that she would be able to attend the
function of 'Reception Dinner' on Saturday at 8.00 p.m.
Considering the above circumstances, we permit the
appellant to proceed to Phuket, Thailand on con:ipliance
with the above terms and conditions as set out.