# STATE OF RAJASTHAN v. PRAKASH CHAND AND ORS

- **Citation:** [1997] Supp. 6 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 1997-12-02
- **Case number:** Criminal Appeal No. G 1145 of 1997
- **Bench:** Dr. A.S. Anand, M.K. Mukherjee, K. Venkataswami
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-rajasthan-v-prakash-chand-and-ors-15945
- **Pages:** 55

## Headnote

Rajasthan High Cowt Rules, 1952: Rules 54, 55, 66, 73 and 74.
A
B
High Cowt-Chief Justice-Ad111i11istrative powers of-Cl1ief Justice C
transferred a parl-heard wlit petition ftvm a Si11gle Judge to a Division Be11ch
because Constitutional issues were involved i11 that writ petition-Writ petitio11
disposed of by Divisio11 Bench-Held : Constitution of Be11ches, providi11g of
roste1; transfer of cases, including pa11-heard cases, ft'Om the board of Si11gle
Judge to Division Bench for disposal on bei11g satisfied that the case i11volved
constitutional issues, is within the pre1Vgative of the Chief Justice of the High D
Coult-Single Judge or Division Bench cannot give any directio11s to the
Regist1y i11 that behalf-Puisne Judges ca11 only do that work which is allotted
to them by the Chief Justice or under his directions-If a11y Single Judge or
Division Bench co11siders a pa1ticular case to be listed before it, it may seek
appropliate orders from the Chief Iustice-Si11gle Judge has no auth01ity,
statutory or otllelwise, to call for the record of the disposed of wlit petitio11
while hea1i11g an imco1111ected criminal revision petition-Single Judge has no
authority to make comments 011 the maimer of trans[ er of the writ petition
and conduct of the counsel and the Bench in disposing of the w1it petition,
while they had no opportunity to reply to those aspersions or insinuations--Such comments or insinuations are 1101 only uncalled for, unwanwtted
and unjustified but are also subversive of proper judicial discipline-Rajasthan High Cowt Ordinance, 1949, Para 44---{;011stitutio11 of I11dia, 1950, Art
214.
F
High Court---Puisne Judges--Si11gle Judge made disparagi11g remarks G
against Chief Justice a11d Brother Judges-Held : Not merely a case of lack
of judicial restraint but it amou11ts to abuse a11d misuse of judicial auth01ity
and betrays lack of respect for the judicial institutio11 and amounts to contempt of court.
High Court-Co11tempt of cowt-Sltow cause 11otice-Agai11st Cltitf H
1
2
SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Justice-Issued by a puisne Judg~Validity of--'Transfer of p01t-heard writ
petition from a Single Judge to a Division Bench because constitutional issues
were involved-Held: S.16(1) of Contempt of Courts Act does not apply to
Judges of Court of Record-Tra11sfer of part-heard writ petition valid-Hence,
directio11 of Single Judge to issue show cause notice to Chief Justice as to why
B co11tempt proceedings be 11ot initiated against him is misconceived, illegal,
without jurisdiction a11d unsustainabl~ontempt of Courts Act, 1971,
S.16(1}-Judges (Protectio11) Act, 1985.
Judiciary-Limitiltio11s of-Held: Judges of the Supreme Court or High
Cowt ca1111ot enter i11to a public co11troversy and file affidavits to repudiate
C any C1iticism or allegations made against them.
·
High Court Judges Travelling Allowances Rules, 1956: Para 2 (E)(ii).
Daily allowance-High Cowt Guest House-High Court Judge including Chief Justice-Entitlement to draw full Deamess Allowance (DA}-ConD ditions for-State Govemment placed Guest House at the disposal of High
Court-Held : Stay of Chief Justice without payment of charges would not
amount to ''free lodging" at the expense of Central or State Govemnrent so as
to attract the provision of Para 2(E)(ii)-01ief Justices, therefore,' were entitled to draw their full DA at the relevant time--lnsinuations and observa1 E tions made by the puisne Judge against a f onner Chief Justice and fonner al
regarding draw al of full DA and non- payment of charges for occupation of
the Guest House were misconceived, legally unsound, factually incorrect,
procedurally untenable and improper besides having been made recklessly.
A writ petition was filed, as a Public Interest Litigation in the High
F
Court of Rajasthan at Jodhpur by an Advocate of that Court, inter alia
seeking directions to provide suitable accommodation to the Judges of that
High Court and for certain other benefits for the Judges During the
pro

## Text

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1
j
STATE OF RAJASTHAN
v.
PRAKASH CHAND AND ORS.
DECEMBER 2, 1997
[DR. A.S. ANAND, M.K. MUKHERJEE AND
K. VENKATASWAMI, JJ.)
Rajasthan High Cowt Rules, 1952: Rules 54, 55, 66, 73 and 74.
A
B
High Cowt-Chief Justice-Ad111i11istrative powers of-Cl1ief Justice C
transferred a parl-heard wlit petition ftvm a Si11gle Judge to a Division Be11ch
because Constitutional issues were involved i11 that writ petition-Writ petitio11
disposed of by Divisio11 Bench-Held : Constitution of Be11ches, providi11g of
roste1; transfer of cases, including pa11-heard cases, ft'Om the board of Si11gle
Judge to Division Bench for disposal on bei11g satisfied that the case i11volved
constitutional issues, is within the pre1Vgative of the Chief Justice of the High D
Coult-Single Judge or Division Bench cannot give any directio11s to the
Regist1y i11 that behalf-Puisne Judges ca11 only do that work which is allotted
to them by the Chief Justice or under his directions-If a11y Single Judge or
Division Bench co11siders a pa1ticular case to be listed before it, it may seek
appropliate orders from the Chief Iustice-Si11gle Judge has no auth01ity,
statutory or otllelwise, to call for the record of the disposed of wlit petitio11
while hea1i11g an imco1111ected criminal revision petition-Single Judge has no
authority to make comments 011 the maimer of trans[ er of the writ petition
and conduct of the counsel and the Bench in disposing of the w1it petition,
while they had no opportunity to reply to those aspersions or insinuations--Such comments or insinuations are 1101 only uncalled for, unwanwtted
and unjustified but are also subversive of proper judicial discipline-Rajasthan High Cowt Ordinance, 1949, Para 44---{;011stitutio11 of I11dia, 1950, Art
214.
F
High Court---Puisne Judges--Si11gle Judge made disparagi11g remarks G
against Chief Justice a11d Brother Judges-Held : Not merely a case of lack
of judicial restraint but it amou11ts to abuse a11d misuse of judicial auth01ity
and betrays lack of respect for the judicial institutio11 and amounts to contempt of court.
High Court-Co11tempt of cowt-Sltow cause 11otice-Agai11st Cltitf H
1
2
SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A Justice-Issued by a puisne Judg~Validity of--'Transfer of p01t-heard writ
petition from a Single Judge to a Division Bench because constitutional issues
were involved-Held: S.16(1) of Contempt of Courts Act does not apply to
Judges of Court of Record-Tra11sfer of part-heard writ petition valid-Hence,
directio11 of Single Judge to issue show cause notice to Chief Justice as to why
B co11tempt proceedings be 11ot initiated against him is misconceived, illegal,
without jurisdiction a11d unsustainabl~ontempt of Courts Act, 1971,
S.16(1}-Judges (Protectio11) Act, 1985.
Judiciary-Limitiltio11s of-Held: Judges of the Supreme Court or High
Cowt ca1111ot enter i11to a public co11troversy and file affidavits to repudiate
C any C1iticism or allegations made against them.
·
High Court Judges Travelling Allowances Rules, 1956: Para 2 (E)(ii).
Daily allowance-High Cowt Guest House-High Court Judge including Chief Justice-Entitlement to draw full Deamess Allowance (DA}-ConD ditions for-State Govemment placed Guest House at the disposal of High
Court-Held : Stay of Chief Justice without payment of charges would not
amount to ''free lodging" at the expense of Central or State Govemnrent so as
to attract the provision of Para 2(E)(ii)-01ief Justices, therefore,' were entitled to draw their full DA at the relevant time--lnsinuations and observa1 E tions made by the puisne Judge against a f onner Chief Justice and fonner al
regarding draw al of full DA and non- payment of charges for occupation of
the Guest House were misconceived, legally unsound, factually incorrect,
procedurally untenable and improper besides having been made recklessly.
A writ petition was filed, as a Public Interest Litigation in the High
F
Court of Rajasthan at Jodhpur by an Advocate of that Court, inter alia
seeking directions to provide suitable accommodation to the Judges of that
High Court and for certain other benefits for the Judges During the
proceedings of the writ petition certain interim orders came to be made by
Shethna, J. from time to time. Shethna, J. directed the writ petition to be
treated as part-heard at the 'request' of counsel for the parties. In the
G meanwhile, an Advocate filed an application for being impleaded as
petitioner No. 2 in that writ petition. He inter alia challenged the legality
and validity of the constitution of a Bench of the High Court at Jaipur as
also the order of the State Government declaring bungalow No. N2 at
Jaipur as the Guest House for the exclusive use of the Chief Justice and
H bungalow No. NS at Jaipur as the High Court Guest House. Over-ruling
STATE v. PRAKASH CHAND
3
the objections raised by the respondent therein, inter alia, to the effect that A
the application of the said Advocate would widen the scope of the writ
petition, the ap1,lication was allowed by Shethna, J and the said Advocate
was impleaded as petitioner No. 2 in the writ petition. The case was then
adjourned from time to time on being listed as part-heard before the Single
Judge. In the meantime, the roster was changed and Shethna, J was B
required to sit in a Division Bench instead of sitting singly between 4-91997 and 12-9-1997. On 8-9-1997, the Additional Advocate General for the
State of Rajasthan moved an application under Rule 55 of the Rajasthan
High Court Rules, 1952 with the prayer that since challenge to the legality
and validity of the constitution of a Bench of the High Court at Jaipur had
been raised by petitioner- Advocate the writ petition should be referred to C
a Division Bench for hearing. By an administrative order, the Chief Justice
directed, on 8-9-1997, that the application filed by the Additional Advocate
General be put up for orders on the next day at 10.30 A.M. A judicial order
then came to be made on 9-9-1997 by the Chief Justice, in the presence of
all the parties to the writ petition. It was directed that the writ petition D
should be listed before a Division Bench of the High Court since it involved
constitutional questions. When the writ petition was listed, the Division
Bench dismissed the petition in view of the statement of the counsel for
the petitioners therein that the relief sought for in the writ petition did not
survive for consideration and the main petition itself having been dismissed, it held that the right of the intervenor did not survive for conE
sideration.
A Criminal Revision Petition was filed by respondent No.1 challenging his conviction and sentence for an offence UDder Section 304A of the
Indian Penal Code, 1860. This petition, as per the roster, was listed for F
admission and bail before Shethna, Jon 3-9-1997. Preliminary hearing of
the petition did not conclude on that date and the Judge directed that the
revision petition be listed before him "alongwith other part-heard" cases
on 5-9-1997, even though as per the change of the roster, he could not take
up Single Bench matters on 5-9-1997, since he was to sit in a Division
Bench on that date. Shethna, J directed the Registry to list those cases "on G
a separate board". Since, the Registry could not create a 'separate board'
for Shethna, J without obtaining directions from the Chief Justice, the
matter was placed for orders before the Chief Justice on 3-9-1997 itself.
However, the Chief Justice declined to provide a 'separate board' for
Shethna, J for sitting in Single Bench, on 5- 9-1997.
H
A
4
SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
Despite the above order, Shethna, J while still sitting in the Division
Bench, on a mention made by the Advocate for the revision petitioner,
passed an order on 8·9-1997, as a Single Judge, directing that Criminal
Revision Petition alongwith "other part-heard cases" should be listed
before him"on a separate board" on 9-9-1997, knowing fully well that on
B that date also he was to cont,nue to sit in the Division Bench and that no
cases could be listed before him without appropriate directions of the
Chief Justice. In view of the earlier order of the Chief Justice dated
3-9-1997 the Registry could not act on the directions of Shethna, J and,
therefore, the Registry once again sought directions of the Chief Justice.
The Chief Justice accommodated Shethna, J and directed that the criminal
C revision petition and 'other part-heard cases' be listed before him on a
'separate board'. That was done.
Since, the writ petition had already been disposed of by the Division
Bench on 10-9-1997, it was no longer a "part-heard case" on the Board of
D Shethna, J and, therefore, it was not listed alongwith the "other part-heard
cases". Even then, while hearing the preliminary arguments in the criminal
revision petition the record of the disposed of writ petition was also called
for by Shethna, J though there was no connection or relevance between the
two cases. In a detailed order, Shethna, J made caustic comments and
allegations in intemperate language not only against the Chief Justice for
E transferring that writ petition from his board to the Division Bench but
also against the Judges constituting the Division Bench which heard the
writ petition. While making those observations Shethna, J took exception
to the manner in which the writ petition was transferred to the Division
Bench by the 'Chief Justice and "opined", that by doing so, the Chief Justice
p
had prim a f acie committed contempt of court.
Shethna, J also observed that the Chief Justice of the High Court in
withdrawing the part-heard writ petition and getting it disposed of in "most
suspicious circumstances" prima facie committed a "criminal contempt".
He, therefore, directed issuance of notice against the Chief Justice to show
G cause as to why contempt proceedings should not he initiated against him
for committing criminal contempt under the Contempt of Courts Act,
1971.
Shethna, J also made comments regarding drawal of DA and non·
H payment of charges for occupation of Bungalow No. N2, Jaipur by some
\
-
--
STATE v. PRAKASH CHAND
5
of the former Chief Justices of the Rajasthan High Court including a A
former Chief Justice of India, Mr. Justice J.S. Verma, till 1994. The
insinuation made was that all of them had "illegally" drawn full DA of Rs.
250 per day to which they were not entitled and their action, amounted to
"misappropriation of public funds" because it was alleged that each one of
them had been "allotted free accommodation by the Government of RajasB
than".
While the judicial propriety, validity and justification for making
insinuations against the Chief Justice of the High Court, casting asper·
sions on the Judges constituting the Division Bench and making comments
and allegations against some of the former Chief Justices of that Court C
including a former Chief Justice of India, has been squarely put in issue
by the State of Rajasthan in this appeal, the Chief Justice of Rajasthan
High Court-respondent No. 2; has called in question the notice directed to
be issued to him to show cause why contempt proceedings be not initiated
against him. The following questions arose before this Court for considera· D
tion:
1. Did Shethna, J have any judicial or administrative authority to
send for the record of a writ petition which had already been disposed of
by a Division Bench • that too while hearing a wholly unconnected criminal
revision petition ·and pass "comments" and make "aspersions" against the E
Chief Justice of the High Court and Judges constituting the Division Bench
regarding the merits of its disposal?
2. Can a Single Judge of a High Court itself direct a particular roster
for himself, contrary to the determination made by the Chief Justice of the
High Court? Is not such an action of the Single Judge subversive of F
judicial discipline and decorum expected of a puisne Judge?
3. Can notice to show cause as to why contempt proceedings be not
initiated against the Chief Justice of the High Court for passing a judicial
order on the application of the Additional Advocate General of the State G
in the presence of counsel for the parties transferring the writ petition
heard in part by Shethna, J, for its disposal in accordance with law, to a
Division Bench be issued by the Single Judge?
4. Did Shethna, J have any power or jurisdiction to cast 'aspersion'
on some of the former Chief Justices Qf the Court, including a former Chief H
6
SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
,, A Justice of India, Mr. Justice J.S. Verma, behind their backs and that too
on half-baked facts and insinuate that they had "illegally" drawn DA at the --
full rate of 'Rs. 250/' per day, to which "they were not entitled", and had
thereby committed "criminal misappropriation of public funds" while
making comments on the merits of the disposed of writ petition?
B
Allowing the appeal, this Court
HELD: 1.1. Though, on the judicial side the Chief Justice of the High
Court is only the 'first amongst equals', the administrative control of the
High Court vests in the Chief Justice of the High Court alone and it is his
C prerogative to distribute business of the High Court, both judicial and
administrative. [20-F; B-C]
1.2. The Chief Justice is the master of the roster. He alone has the
right and power to decide how the Benches of the High Court are to be
constituted; which Judge is to sit alone and which cases he can and is
D required to hear as also as to which Judges ·shall constitute a Division
Bench and what work those Benches shall do. [53-F; 20-C-D]
1.3. The puisne Judges can only do that work as is allotted to them
by the Chief Justice or under his directions. No Judge or a Bench of Judges
can assume jurisdiction in a case pending in the High Court unless the
E case is allotted to him or them by the Chief Justice. Strict adherence of
this Procedure is essential for maintaining judicial discipline and proper
functioning of the High Court. No departure from it can be permitted.
[53-G; 29-H; 30-A-B]
F
1.4. Till any determination made by the Chief Justice lasts, no Judge
who is to sit singly can sit in a Division Bench and no Division Bench can
be split up by the Judges constituting the Bench themselves and one or
both the Judges constituting such Bench sit singly and take up any other
kind of judicial business not otherwise assigned to them by or under the
directions of the Chief Justice. [53-G-H]
G
Sohan Lal Boid v. State of WB, AIR (1990) Cal. 168 and Sanjay Kumar
Slivastava v.Acting Chief Justice, (1996) AWC 644 (All.), approved.
2.1. In the event a Single Judge or a Division Bench considers that a
particular case requires to be listed before him/it for valid reasons, he/it
should direct the Registry to obtain appropriate orders from the Chief
H Justice. The puisne Judges are not expected to entertain any request from
-
-
....
STATE v. PRAKASH CHAND
7
the Advocates of the parties for listing of case, which does not strictly fall
within the determined roster. In such cases, it is appropriate to direct the
counsel to make a mention before the Chief Justice and obtain appropriate
orders. This is essential for smooth functioning of the High Court. [20-E-F]
State v. Devi Daya~ AIR (1959) All. 421 and Niranjan Singh v. State,
AIR (1974) Rajasthan 171, approved.
Re : Von Dembi11ska Ex party The Debtor (1954) 2 All ER 46, cited.
2.2. The Chief Justice can take cognizance of an application laid
before him under Rule 55 of the Rajasthan High Court Rules, 1952 and
refer a case to the larger Bench for its disposal and he can exercise this
jurisdiction even in relation to a part-heard case. The Chief Justice has
·A
B
c
the authority and the jurisdiction to refer even a part-heard case to a
Division Bench for its disposal in accordance with law where the Rules so
demand. It is a complete fallacy to assume that a part-heard case can
under no circumstances be withdrawn from the Bench and referred to a D
larger Bench, even where the Rules make it essential for such a case to be
heard by a larger bench. [54-A-B; 30-B-C]
State of Maharashtra v. Narayan Shamrao Puranik, AIR (1982) SC
1198 and Inder Mani v. Matheshwari Prasad, [1996) 6 SCC 587, relied on.
E
Mayavann Financial Corporation Ltd. v. Registrar of Chits, (1991) 2
LW (Mad.) 80, approved.
2.3. The puisne Judges cannot "pick and choose" any case pending in
the High Court and assign the same to himself or themselves for disposal
p
without appropriate orders of the Chief Justice. No Judge or Judges can
give directions to the Registry for listing any case before him or them,
which runs counter to the directions given by the Chief Justice.[54-B-C]
3.1. In the instant case, it was the statutory duty of the Chief Justice
to assign the writ petition to a Division Bench of the High Court for
hearing since it involved constitutional issues and Rule 55 of the High
Court Rules required such a case to be so heard. He could not shut his
eyes as regards the requirements of Rule 55 only because a Single Judge
of the High Court was treating the case as part-heard. The correctness of
G
the order of the Chief Justice could only be tested in judicial proceedings H
8
SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A in a manner known to law. No Single Judge was competent to find fault
with it. (30-D-F]
B
3.2. Shethna, J did not have any authority, statutory or otherwise - ~or
was it necessary - to call for the record of the writ petition : firstly because
it stood already disposed of by a Division Bench and secondly because it was
t~tally unrelated to and uncmwected with the criminal revision petition he
was to hear. Therefore, ii appears that the record was sent for, not for mere
perusal but for some other purpose, not strictly judicial. It was improper on
the part of the Single Judge to have cast aspersions on the conduct of the
counsel and the Bench in relation to a disposed of matter, in a wholly
C
unconnected judicial proceedings. In doing so he transgressed all bounds of
judicial propriety and discipline. (31-B-C; F]
3.3. The insinuations made by Shethna, J against the Chief Justice
of the High Court for transferring the writ petition to the Division Bench
are not only uncalled for, unwarranted and unjustified but are also subD versive of proper judicial discipline. To insinuate, as the Single Judge did,
that the writ petition was got 'disposed of' in 'suspicious circumstances' is
wholly wrong and devoid of sobriety expected of a judicial officer. The
insinuation also amounts to contempt of the Division Bench as it implies
that the Judges of the Division Bench were so "amenable". The insinuations
E
F
are aimed at bringing the administration of justice into disrepute and tend
to shake public confidence in the impartiality of the judiciary. The observations, insinuations and aspersions lack courtesy and good faith. Judicial
restraint has been thrown to the winds. It is unbecoming of a Judge of the
High Court to travel out of the confines of the issue before him (in this
case the criminal revision petition) and to fish out material to unjustifiably
malign someone more particularly where that someone happens to be the
one who is the head of the judicial family in that High Court. This practice
is strongly deprecated. (31-G-H; 32-A-C]
Braj Kishore Thakur v. Union of India, (1997] 4 SCC 65 and A.M.
G Mathur v. Pramod Kumar Gupta, (1990] 2 sec 533, relied on.
4.1. The Single Judge has cast aspersions and made insinuations
against the Chief Justice and the Judges constituting the Division Bench,
who had passed judicial orders in the writ petition. They have had no
chance or opportunity to reply to those aspersions and insinuations. By
H the very nature of their office, the Judges of the Supreme Court or the High
--
STAIB v. PRAKASH CHAND
9
Court, cannot enter into a public controversy and file affidavits to A
-repudiate any criticism or allegations made against them. Silence, as an
option, becomes necessary by the very nature of the office which the Judges
hold. Those who criticise the Judges in relation to their judicial or ad·
ministrative work, must remember that the criticism, even if outspoken,
can only be of the judgment but not of the Judge. By casting aspersions B
on the Judges personally or using intemperate language against them, the
critics, whoever they may be, strike a blow at the prestige of the institution
and erode its credibility. That must be avoided at all costs. Shethna, J must
be presumed to be aware of this and yet he permitted himself the liberty
to make intemperate comments and disparaging and derogatory remarks
against the Chief Justice and his Brother Judges as also a former Chief C
Justice of that Court, including a former Chief Justice of India who cannot
reply or respond to the unfounded charges. It is not _merely a case of lack
of judicial restraint but it amounts to abuse and misuse of judicial
authority and betrays lack of respect for judicial institution. Besides when
made recklessly (as in the instant case) it amounts to interference with the D
judicial process. The foundation of our system which is based on the
independence and impartiality of those who man it, will be shaken if
disparaging and derogatory remarks are permitted to be made against
brother Judges with impunity. It is high time that Judges realise that the
much-cherished judicial independence has to be protected not only from
outside forces but also from those who are an integral part of the system. E
Dangers from within have much larger and greater potential for harm than
dangers from outside. Judges alone in the judicial family can guard
against such dangers from within. One of the surer means to achieve it is
by the Judges remaining circumspect and self-disciplined in the discharge
of their judicial functions. The manner in which the Single Judge has acted
is really distressing. [33-G-H; 34-A-F]
4.2. The disparaging and derogatory comments made in the most
intemperate language in the order under appeal do no credit to the high
office of a High Court Judge. [55-B]
4.3. Therefore, all comments, observations and findings recorded by
the Single Judge in relation to the disposed of writ petition were not only
unjustified and unwarranted but also without jurisdiction and make the
Judge coram-non-judice. [54-D-E]
F
G
H
10
SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
A
5.1. The issuance of a notice to the Chief Justice to show cause why
proceedings under the Contempt of Courts Act, 1971 be not initiated
against him for transferring the part-heard writ petition to the Division
Bench for hearing, is not only subversive of judicial discipline and illegal
but is also without jurisdiction. No such notice could be issued to the Chief
B Justice since the order referring the case to the Division Bench was an
order legally made by the Chief Justice in exercise of his statutory powers.
Such an order can never invite initiation of contempt proceedings against
him. The issuance of notice smacks of judicial authoritarianism and is not
permissible in law. The great anxiety to hear "order part-heard cases"
alongwith the criminal revision petition, on a date when the Single Judge
C was sitting in the Division Bench exposes an undue interest in some
matter, which again is against judicial discipline. [35-F-H; B-C]
5.2. Even otherwise, it is a fundamental principle of our
jurisprudence and it is in public interest also that no action can lie against
D a Judge of a Court of Record for a judicial act done by the Judge. The
remedy of the aggrieved party against such an order is to approach the
higher forum through appropriate proceedings. This immunity is essential
to enable the Judges of the Court of Record to discharge their duties
without fear or favour, though remaining within the bounds of their
jurisdiction. Immunity from any civil or criminal action or a charge of
E
contempt of court is essential for maintaining independence of the
judiciary and for the strength of the administration of jnstice. Thus no
action could lie against the Chief Justice acting judicially for doing something within his jurisdiction even if the order is patently erroneous and
unsustainable on merits. Even under the Judicial Officers' Protection Act,
F
G
1985 immunity· has been given to judic;al work done by them as well as for
the judicial orders made by them. Section 16(1) of the Contempt of Courts
Act, 1971 does not apply to the Judges of the Court of Record but only to
the subordinate judiciary. [36-A-B; 37-A-B; E-F; H]
Arenson v. Casson, Beckman Rultley & Co. Ltd., [1977] AC 405, cited.
Oswald's Contempt of Cowt 3rd Edn. [1993] (Reprint) and Salmond
and Heuston on the Law of Tolts, 21st Edn. [1996], referred to.
5.3. The issuance of a notice to show cause why contempt proceedings·
be not initiated against respondent No. 2, the Chief Jnstice of the High
H Court, by Shethna, J in the facts and circumstances of this case is thus
STATE v. PRAKASH CHAND
11
wholly illegal, unwarranted and without jurisdiction. Issuance of such a A
notice is also misconceived since by no stretch of imagination can it be
said that there was any interference in the administration of justice by the
Chief Justice in exercising his statutory powers to allocate work to puisne
Judges and to the Division Benches. The direction of Shethna, J to issue
notice to Chief Justice of the High Court to show cause why contempt B
proceedings be not initiated against him, for transferring a part-heard writ
petition from his Bench to the Division Bench for disposal, is not only
subversive of judicial discipline and illegal but is also wholly misconceived
and without jurisdiction. [38-A-D]
6.1. Bungalow No. A/2 at Jaipur had been declared as a High Cowt C
Guest House by the State Government in 1979 and placed at the disposal
of the High Court of Rajasthan. It had not been allotted as rent free
accommodation in favour of any Chief Justice. The charges of rent of
Bungalow No. A/2 at Jaipur were debited to the account of the High Court
of Rajasthan by the State Government. The Bungalow was in possession D
of and under the control of the High Court of Rajasthan. Occupation of
such a building, with or without payment of charges was to be regulated
by the High Court of Rajasthan itself. The charges, if any, were to be tixed
by the High Court of Rajasthan for occupation of the Guest House and
those charges were recoverable by the High Court of Rajasthan from the
persons occupying the Guest House. May be, the High Court only per- E
mitted the· Chief Justice to stay in that Guest House, but that was an
internal arrangement of the High Court and the Government had no say
in it. If the High Court also chose not to tix any charges ever since 1979,
when the Guest House was allotted to the High Court till 1994, it cannot
by any stretch of imagination be said that the Chief Justices had been F
allotted "free Government accommodation" for their stay at Jaipur in the
High Court Guest House, so as to disentitle them to draw full dearness
allowance (DA) at the admissible rates. [49·D·H; 50-A]
6.2. Providing free boarding/lodging at the expense of the Central or
the State Government or declaring the occupant as a "State Guest" is the G
sine qua non for attracting Para 2(E) (ii) of the High Court Judges Travell·
ing Allowances Rules, 1956, not entitling a Judge including the Chief
Justice to draw full DA. After bungalow No. A/2 had been declared as the
High Court Guest House in 1979, and placed under the control of High
Court, the State Government went out of the picture insofar as its use and H
12
SUPREME COURT REPORTS [1997] SUPP. 6 S.C.R.
A occupation was concerned. The stay in that Guest House even without
charges, cannot by any rule of construction, be construed as providing
"free lodging" at the expense of the Central or State Government so as to
attract the provision of Para 2 (E) (ii) of the Rules. The Chief Justices were,
therefore, not disentitled to draw th~ir full DA at the rates admissible at
B the relevant time. Even after the charges were fixed at the rate of Rs. 10
or Rs. 16 per day for occupation of the Guest House in 1994 by the High
Court, the Chief Justices have continued to draw their full DA and not 50%
,of the DA. They have paid charges to the High Court for the use of the
Guest House at the rate fixed by the High Court w.e.f. 10-6-1994. Therefore,
it cannot be said that any of the Chief Justices, till 1994, had "illegally"
C drawn the full DA to which they were not entitled. The further observations
of Shethna, J that :
"It is nothing but a misappropriation of the public fund which is a
criminal offence under the Penal Code."
D are not only based on wrong assumptions but are also legally unsound
and untenable. [50-B-G]
6.3. Thus the observations of the Single Judge against the former
Chief Justices of the High Court of Rajasthan to the effect that they had
E "illegally" drawn full DA while sitting at Jaipur to which they were not
entitled, is factually incorrect, procedurally untenable and legally unsustainable. [54-F-G]
6.4. The "finding" recorded by the Single Judge against a former
Chief Justice of India, Mr. Justice J.S. Verma, that till his elevation to the
F Supreme Court, he had, as Chief Justice of the Rajasthan High Court,
"illegally" drawn a DA of Rs. 250 while sitting at Jaipur and had thereby
committed "criminal misappropriation of public fund" lacks procedural
propriety, factual accuracy and legal authenticity. The finding is wholly
incorrect and legally unsound and makes the motive of the author not
G above personal pique so wholly taking away the dignity of the judicial
process. [54-G-H; 55-A]
? .1. A Judge has the inherent power to act freely upon his own
conviction on any matter comiug before him, but it is a principle of highest
importance .to the proper administration of justice that the Judge must
H exercise his powers within the bounds of law and should not use in-
STATE v. PRAKASH CHAND
13
temperate language or pass derogatory remarks against other judicial A
functionaries, unless it is absolutely essential for the decision of the case
and is backed by.factual accuracy and legal provisions. [52-C-D]
7.2. It is the duty of every member of the legal fraternity to ensure that
the image of the judiciary is not tarnished and its respectability eroded. The
manner in which proceedings were taken by the Single Judge in relation to B
the writ petition disposed of by a Division Bench exposes a total lack of
respect for judicial discipline. Judicial authoritari:mism is what the
proceedings in the instant case smack of. It cannot be permitted under any
guise. Judges must be circumspect and self disciplined in the discharge of
their judicial functions. The virtue of humility in the Judges and a constant C
awareness that investment of power in them is meant for use in public
interest and to uphold the majesty of rule of law, would to a large extent
ensure self restraint in discharge of all judicial functions and preserve the
independence of judiciary. It needs no emphasis to say that all actions of a
Judge must be judicious in character. Erosion of credibility of the judiciary, D
in the public mind, for whatever reasons, is greatest threat to the inde·
pendence of the judiciary. Eternal vigilance by the Judges to guard against
any such latent internal danger is therefore, necessary, lest the Judges
"suffer from self-inflicted mortal wounds". Judges must remember that the
Constitution does not give unlimited powers to any one including the Judge
of all levels. The societal perception of Judges as being detached and E
impartial referees is the greatest strength of the judiciary and every mem·
her of the judiciary must ensure that this perception does not receive a set
back consciously or unconsciously. Authenticity of the judicial process rests
on public confidence and public confidence rests on legitimacy of judicial
process. Sources of legitimacy are in the impersonal application by the
Judge of recognised objective principles, which owe their existence to a
system as distinguished from subjective moods, predilections, emotions
and prejudices. It is most unfortunate that the order under appeal founders
on this touchstone and is wholly unsustainable. [52-F-H; 53-A-D]
F
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. G
1145 of 1997.
From the Judgment and Order dated 15.9.97 of the Rajasthan High
Court in Crl. R. No. 354 of 1997.
Ashok H. Desai, Attorney General for India, Manoj K. Das, Srilok H
14
SUPREME COURT REPORTS (1997] SUPP.6 S.C.R.
A Nath Rath, Nikhilesh Ramachandran, Ms. Rina Bagga and Aruneshwar
Gupta for the Appellant.
T.R. Andhayarujina, Solicitor General of India, Subrat Bir la and K.L.
Janjani for the Respondent No. 2.
B
The Judgment of the Court was delivered by
DR. ANAND, J. Leave granted.
This is an unusual case. The observations, comments and allegations
made and the order passed by a learned Single Judge of the Rajas than
C High Court, Mr. Justice Shethna, in relation to a disposed of writ petition,
by sending for its record in a totally unrelated and unconnected criminal
revision petition, which have been put in issue in this appeal, touch not
only upon the discipline of the High Court and the powers of the Chief
Justice to assign cases and allot Benches but also the larger issue of judicial
D propriety. The order directing issuance of notice of contempt to the chief
Justice of the High· Court raises a fundamental question about the jurisdiction of a single Judge to issue such a notice in the established facts of the
case. It is not individuals but the prestige of the Institution which is at stake
in this case. The manner in which 'allegations' have been made against the
E Chief Justice of the High Court, the Division Bench of the High Court
which had disposed of the writ petition and some of the former Chief
Justices _of the Rajasthan High Court, including the present Chief Justice
of India, Mr. Justice J.S. Verma, has caused us much anguish. We wish we
did not have to deal with a case like this but we shall be singularly failing
in our duties to the Institution, if we do not de::.! wilth the matter and take
F it to its logical conclusion. First, some salient facts :
Writ petition No. 2949 of 1996 was filed, as a Public Interest Litigation, on 9.9.1996 in the High Court of Rajasthan at Jodhpur by an Advocate
of that court, inter alia seeking directions to provide suitable accommodation to the Judges of the Rajasthan High Court and for certain other
G benefits for the Judges. During the proceedings of the writ petition certain
interim orders came to be made by Shethna, J. from time to time. On
29.4.1997 Shethna, J. directed the writ petition to be treated as part-heard
at the 'request' of learned counsel for the parties. In the meanwhile, Shri
D.R. Bhandari, Advocate, filed an application for being irnpleaded as
H petitioner No. 2 in that writ petition. He inter alia challenged the legality
l ,
STATE v. PRAKASHCHAND[DR.ANAND,J.]
15
and validity of the constitution of a Bench of the High Court at Jaipur as A
also the order of the State Government declaring bungalow No. A/2 at
Jaipur as the Guest House for the exclusive use of the Chief Justice and
bungalow No. A/5 at Jaipur as the High Court Guest House. Certain other
issues were also raised by Shri Bhandari in that application. Over-ruling
the objections raised by the respondent therein inter alia, to the effect that B
the application of Shri Bhandari would widen the scope of the writ petition,
the application of Shri Bhandari was allowed by Shethna, J on 29.7.1997
and he was impleaded as petitioner No. 2 in the writ petition. The case was
then adjourned from time to time on being listed as part-heard before the
learned single Judge. In the meantime, the roster was changed and Shethna, J. was required to sit in a Division Bench instead of sitting singly C
between 4.9.1997 and 12.9.1997. On 8.9.1997, the Additional Advocate
General for the State of Rajasthan moved an application under Rule 55 of
the Rules of the High Court of Judicature for Rajasthan (hereinafter the
Rules) with the prayer that since challenge to the legality and validity of
the constitution of a Bench of the High Court at Jaipur had been raised D
by ·petitioner No. 2, Shri Bhandari, Writ Petition No. 2949/96 should be
referred to a Division Bench for hearing. By an administrative order, the
Chief Justice directed, on 8.9.97, that the application filed by the Additional Advocate General be put up for orders on the next day at 10.30 A.M.
A judicial order then came to be made on 9.9.1997 by the Chief Justice, in
presence of all the parties to the writ petition. It was directed that the writ E
petition should be listed before a Division Bench of the High Court
comprising Mr. Justice M.P. Singh and Mr. Justice B.S. Chauhan since it
involved constitutional questions. When the writ petition was listed before
the Division Bench on 10.9.1997, the following order came to be passed:-
10.09.1997
HON'BLE MR. JUSTICE M.P. SINGH
HON'BLE DR. JUSTICE B.S. CHAUHAN
MR. M.C. Bhoot
)
Mr. D.R. Bhandari )
for the petitioners
Mr. l.R. Chaudhary )
Mr. L.S. Udawat
)
for the respondents
Mr. R.P. Dave
)
F
G
H
A
B
c
16
SUPREME COURT REPORTS (1997] SUPP. 6 S.C.R.
Mr. M.C. Bhoot, learned counsel for the petitioners, states that
the relief sought for, in the writ petition, do not sO.rvive for
consideration now. The writ petition has become infructuous.
Accordingly, the writ petition is dismissed as infructuous.
Since the main petition itself has been dismissed, t,he right of
the intervenor to be heard does not survive for consideration.
Accordingly, the application filed by him is also rejected."
Thus, writ petition No. 2949 of 1996 was dismissed as 'infructuous' and, the
proceedings in that writ petition concluded.
A Criminal Revision Petition No: 357 of 1997 was filed by one
Prakash Chand, respondent No. 1, herein challenging his conviction and
sentence for an offence under Section 304 A IPC. This petition, as per the
roster, was listed for admission and bail before Shethna, J. on 3.9.1997. It
D appears that preliminary hearing of the petition did not conclude on that
date and the learned Judge directed that the revision petition be listed
before him "alongwith other part-heard" cases on 5.9.1997, even though as
per the change of the roster, he could not take up single bench matters on
5.9.97, since he was to sit in a Division Bench on that date. Shethna, J.
directed the Registry to list those cases "on a separate board". Since, the
E Registry could not create a 'separate board' for Shethna, J., without
obtaining directions from the Chief Justice, the matter was placed for
orders before the Chief Justice on 3.9.97 itself. The Chief Justice
directed:
F
G
"There will be no roster for Hon'ble Justice B.J. Shethna for sitting
in Single Bench on 5.9.1997. Those part heard matters may be
listed on some other day some time next week as the business of
the Court would permit with my specific order.
Providing roster is the prerogative of the Chief Justice, which
must be brought to the knowledge of the Hon'ble Judge."
Despite the above order, Shethna, J. while still sitting in the Division
Bench, on a mention made by the learned Advocate for the revision
petitioner, passed an order on 8.9.1997, as a single Judge, directing that
Criminal Revision Petition No. 357/97 alongwith "other part-heard cases"
H should be listed before him "on a separate board" on 9.9.97, knowing fully
' .l
STATE v. PRAKASH CHAND [DR. ANAND, J.]
17
well that on that date also he was to continue to sit in the Division Bench A
and that no cases could be listed before him without appropriate directions
of the Chief Justice. In view of the ea~lier order of the Chief Justice dated
3.9.97 (supra) the Registry could not act on the directions of Shethna, J.
and therefore the Registry once again sought directions of the Chief
Justice.