IMPORTANT POINT
Judges of higher courts must exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary.

Headnote:(i) EXPUNGING REMARKS-Order cancelling bail in NDPS case-Caustic and sever censure made against appellant, a senior District and Sessions Judge of Bihar Judicial Service by a single Judge of High Court-Accused involved in an offence u/s 20(b)(i) of NDPS Act was granted bail by appellant-Single Judge called for a report from appellant as to circumstances under which bail was granted-Cancellation of bail-Single Judge castigated appellant for being ignorant of the law and was not aware of latest ruling -No justification for Single Judge to observe that appellant Special Judge had exceeded his jurisdiction in granting bail-Sessions Judge was well within the jurisdiction when he passed the order granting bail-Extremely offensive imputations made against appellant expunged-Judges of higher courts must exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary.
       Held : When learned Single Judge castigated the appellant for being "ignorant of the law and was not aware of the latest rulings" it would have been desirable that learned Single Judge had reminded himself of the legal position laid down by the same High Court on the very same subject. If the position of law which is binding on the subordinate judiciary in Bihar was the above (as laid down by the Division Bench in Kamlesh Kumar v. State of Bihar) there was no justification at all for the learned Single Judge of the same High Court to observe that the appellant Special Judge had exceeded his jurisdiction in granting bail. (Para 7)
       When the appellant petitioned before the learned Single Judge to expunge the extremely offensive imputation made against a judicial officer that "it appears to me that bail has been granting for extraneous considerations", fairness required of him at least to put forward his reasons when he chose to reiterate those remarks in the order now under challenge. It is very unfortunate - we may say very distressing - that learned Single Judge persisted in repeating those highly disperaging observations without any justification whatsoever. (Para 9)
       Further held : We are sorry to note that learned Single Judge did not remind himself of the above precautions which time and again have been exhorted. When he made unjustifiable, unsavoury and scathing remarks on an undefended Judge of the subordinate court he was only wounding the institution of judiciary. (Para 13)
       (ii) JUDICIARY-Judicial institutions-Judicial restraint-Judges of higher courts must exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary. (Paras 11 and 12)
       (iii) Narcotics Drugs and Psychotropic Substances Act-Sections 20(b)(i) and 37(1)(b)-Accused charged with offence u/s 20(b)(i)-Power u/s 37(1)(b) is not to be attracted.-Kamlesh Kumar v. State of Bihar, 1994(2) PLJR 600 : Affirmed. (Paras 6 & 7)

JUDGMENT

Thomas, J.-Leave granted.

2. Judicial restraint is a virtue. A virtue which shall be concommitant of every judicial disposition. It is an attribute of a judge which he is obliged to keep refurbished time to time, particularly while dealing with matters before him whether in exercise of appellate or revisional or other supervisory jurisdiction. Higher courts must remind themselves constantly that higher tiers are provided in the judicial hierarchy to set right errors which could possibly have crept in the findings or orders of courts at the lower tiers. Such powers are certainly not for belching diatribe at judicial personages in lower cadre. It is well to remember the words of a jurist that "a Judge who has not committed any error is yet to be born".

3. The context for making the aforesaid prefatory words is the grievance expressed by the appellant Braj Kishore Thakur, a senior District & Sessions Judge of Bihar Judicial Service over the caustic and severe censure made against him by a single Judge of the Patna High Court in an order cancelling the bail granted to two accused involved in an offence under Section 20(b)(i) of the Narcotics Drugs and Psychotropic Substances Act, 1985, for short NDPS Act . The aggrieved Sessions Judge moved the High Court to have those disperaging remarks expunged but instead of getting them erased learned single Judge used the opportunity to reiterate those deprecatory remarks with aggravated severity. Hence the said Sessions Judge has come to this Court under Article 136 of the Constitution. We granted special leave to him.

4. The background is this : On 16.2.1995 some customs officials in Bihar stopped and inspected an Ambassador car at Fahengola (in Kishan Ganj) and detected 97 Kgs. of "non-duty paid Ganja" hidden in a false chamber built inside the vehicle. The driver and two passengers of the car were arrested and were later remanded to judicial custody. About 3 months thereafter those three persons moved for bail and the application came up before the appellant who was Sessions Judge-cum-Special Judge, Purnea. He passed orders on 29.7.1995 rejecting bail for the driver and granting bail for the other two persons subject to certain conditions. This order was challenged by the Collector of Customs, Patna before the High Court of Patna. Learned Single Judge (Narayan Roy, J.) called for a report from the appellant as to the circumstances under which bail was granted. (We fail to appreciate how the learned Single Judge could have asked the subordinate judicial officer to send up a report in defence of his judicial order. Reasons in support of a judicial order can appear only in the order itself and it is an unwholesome practice to compel a judicial officer to write a report subsequently in defence of his conclusions). Be that as it may - learned Single Judge after considering the report passed the order cancelling the bail granted to the aforesaid two persons and in that order made the following observations which have now become the subject of this appeal.

"The learned Special Judge, therefore, in view of the stringent law on the point should have taken care in not making haste, by granting bail to the accused opposite parties and when the seized contraband was of a considerable magnitude, serious view of the matter should have been taken and bail should not have been granted so lightly believing the plea taken by the accused persons."

"........it appears to me that bail has been granted for extraneous consideration".

Before I part with this order, I would like to observe that the learned Special Judge, who happens to be a seniormost Sessions Judge could not have passed the order impugned in a leisurely manner completely ignoring the provisions of Section 37 of the NDPS Act. The acts of the learned Special Judge by granting bail to accused opposite party Nos. 1 and 2 amounts to judicial indiscretion and in view of his own admission as shown in his report that he was not aware of the law on

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1997 Supreme(SC) 363

IMPORTANT POINTJudges of higher courts must exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary.

Cases Referred (5)

IMPORTANT POINT
Judges of higher courts must exercise greater judicial restraint and adopt greater care when they are tempted to employ strong terms against lower judiciary.