1997(4) Crimes 329 (SC)
SUPREME COURT OF INDIA
(From Rajasthan High Court)
Dr. A.S. Anand, M.K. Mukherjee and K. Venkataswami, JJ.
State of Rajasthan -Appellant
Versus
Prakash Chand & Ors. -Respondents
Criminal Appeal No. 1145 of 1997
(Arising out of SLP (Crl.) No. 2880 of 1997)
Decided on 2-12-1997
Counsel for the Parties:
For the Appellant: Ashok H. Desai, Attorney General for India, Manoj K Das, Srilok Nath Rath, Nikhilesh Ramachandran, Ms. Rina Bagga and Aruneshwar Gupta. Advocates.
For the Respondent No.2: T.R. Andhayarujina, Solicitor General of India. Subrat Birla and K.L. Janjani, Advocates.

VERY IMPORTANT POINTS
1. The administrative control of the High Court vests in the Chief Justice a/one and he is the master of the roster and he alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted.
2. No Judge or Judges can give directions to the Registry for listing of any case befor him or them which runs counter to the directions given by the Chief Justice.
3. The issuance of a notice to the Chief Justice of theHigh Court to show cause why proceedings under the Contempt of Court Act be not initiated against him for transferring the part; heard writ petition to the Division Bench for hearing, kis not only subversice of hudicial discipline and illegal but is also waitho;ut jurisdiction as the order of transfer was made by the Chief Justice in exercise of his statutory powers.

Headnote:(i) HIGH COURTS-Constitution of India-Article 225-Rajasthan High Court Ordinance, 1949-Para 44-Rules of the High Court of Judicature for Rajasthan, 1952-Rules 54, 73, 74 & 66-Distribution of business and administrative control Constitution of Benches-Powers of Chief Justice-Administrative control of High Court vests in the Chief Justice of the High Court alone Power to make roster exclusively vests in the Chief Justice-A daily cause list is to be prepared under directions of the Chief Justice-He alone has the prerogative to constitute benches of the Court and allocate cases to the benches so constituted--Puisne Judges can only do that work as is allotted to them by Chief Justice or under his directions-No Judge or a Bench of Judges can assume jurisdiction in a case pending in High Court unless case is allotted to him or them by the Chief Justice-Chief Justice has authority and jurisdiction to refer even a part heard case to a Division Bench for its disposal-Puisne Judges cannot pick and choose any case pending in High Court and assign the same to himself or themselves without appropriate orders of Chief Justice No Judge or Judges can give directions to Registry for listing any case before him/them which runs counter to directions given by Chief Justice.

       Held that the administrative control of the High Court vests in the Chief Justice of the High Court alone and that it is his prerogative to distribute business of the High Court both judicial and administrative. 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 required to hear as also as to which Judges shall constitute a Division Bench and what work those Benches shall do. In other words the Judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by an order of or in accordance with the directions of the Chief Justice. That necessarily means that it is not within the competence or domain of any single or division bench of the court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice. Therefore in the scheme of things judicial discipline demands that in the event a single Judge or a division bench considers that a particular case requires to be listed before it for valid, reasons, it should direct the Registry to" obtain appropriate orders from the Chief Justice. The puisne Judges are not expected to entertain any request from 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 Court. Though, on the judicial side the Chief Justice is only the 'first amongst the equals, on the administrative side in the matter' of constitution of Benches and making of roster, he alone is vested with the necessary powers. That the power to make roster exclusively vests in the Chief Justice and that a daily cause list is to be prepared under the directions of the Chief Justice. (Para 16)

       Further held that no Judge or a Bench of judges can assume jurisdiction in a case pending in the High Court unless the 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 Court. No departure from it can be permitted. If every judge of a High Court starts picking and choosing cases for disposal by him, the discipline in the High Court would be the casualty and the Administration of Justice would suffer. No legal system can permit machinery of the court of collapse. The Chief Justice has 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 larger Bench, even where the Rules make it essential for such a case to be heard by a larger Bench. (Para 24)

       In the instant case, it was the statutory duty of the Chief Justice to assign writ petition No. 2949 of 1996 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. No exception whatsoever could, therefore, be taken to the order of the Chief Justice made on 9.9.97, referring that writ petition for hearing to a Division Bench. In the facts and circumstances of the case the Chief Justice was statutorily obliged to take cognizance of the application filed by the Additional Advocate Genera] of the State and pass appropriate orders. He could not shut his eyes as regards the requirements of Rule 55 (supra) only because a single Judge of the High Court was treating the case as part-heard the correctness of the order of the Chief Justice could only be tested in judicial proceedings in a manner known to law. No single Judge was competent to find fault with it. (Para 25)

       (ii) Constitution of India-Article 136-Writ Petition filed in High Court seeking directions to provide suitable accommodation to Judges-Interim orders passed-Shethna J. directed writ petition to be treated as part heard-One Advocate filed an application for being impleaded as petitioner No.2-He challenged legality and validity of constitution of a Bench of High Court at Jaipur Application allowed-Change of roster-Shethna, J. was required to sit in Division Bench instead of sitting singly-Prayer made that the Writ Petition should be referred to the Division Bench - Allowed – Writ Petition listed before another Division Bench and dismissed as infructuous -A Criminal Revision listed for admission before Shethna, J.-The Judge directed that revision be listed before him alongwith other part heard cases-There being no roster for Shethna, J. for sitting in Single Bench on that day-However Chief Justice directed that revision with other part heard matters be listed before Shethna, J- The Judge called for records of already disposed of writ petition-Caustic comments and unjustified allegations made against the Chief Justice for transferring that writ petition from his board to the Division Bench Show cause notice to Chief Justice for contempt proceedings-Validity of-Challenged-Held, all comments observations and aspersions made by Shethna, J. against the Chief Justice and Judges constituting Division Bench are without any justification-issuance of contempt notice is illegal and without jurisdiction.

       Held: In our considered opinion Shethna, J. did not have any authority, statutory or otherwise - nor was it necessary - to call for the record of the above Writ Petition firstly because it stood already disposed of by a Division Bench and secondly because it was totally unrelated to and unconnected with the criminal revision petition he was to hear. Therefore, it appears that the record was sent for not for mere perusal but for some other purpose, not strictly judicial. To say the least it was improper on the part of the learned Judge to have cast aspersions on the conduct of the counsel and the Bench in relation to a disposed of matter, in a wholly unconnected judicial proceedings. In doing so he transgressed all bounds of judicial propriety and discipline. (Para 26)

       Further held : 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 subversive of proper judicial discipline. To insinuate, as the learned Judge does, 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 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 when that someone happens to be the one who is the head of the judicial family in that High Court. We most strongly deprecate this practice. (Para 27)

       In substance the contempt that is alleged to have been committed by the Chief Justice of the High Court respondent No.2, is in "transferring" W.P, No, 2949/96 which had been heard in part by Shethna J. to a Division Bench for its disposal and for not placing that writ petition alongwith "other part heard cases" before the learned Judge despite his orders to that effect. As already noticed Shethna, J. had twice on 3.9.97 and 8.9.97, directed criminal revision petition No. 354/97 to be listed alongwith "other part heard cases" before him. The great anxiety to hear "other part-heard cases" alongwith the criminal revision petition, on a date when the learned Judge was sitting in the Division Bench exposes as undue interest in some matter, which again is against judicial discipline. Perhaps Writ Petition No. 2949/96 was one such part heard case which the learned Judge, for reasons best known to him, was keen to hear. We have dealt with in an earlier part of this Judgment as to how and why W.P. 2949/96 was referred by the learned Chief Justice for hearing to the Division Bench. We need not repeat it. Suffice it, to notice that a judicial order had been passed by the Chief Justice allowing the application filed by the Additional Advocate General under Rule 55 for referring the writ petition, for its disposal, to a Division Bench. Shethna, J. therefore had no jurisdiction to question the correctness of that order more so in some unconnected and unrelated collateral proceedings. The withdrawal of the part-heard writ petition from the board of Shethna, J. and its transfer to the Division Bench for its disposal in view of the requirements of Rule 55, was an action squarely permitted by the Rules and in conformity with the statute. It was an action of the Chief Justice backed by statutory sanction. That order of the Chief Justice was legally valid and unexceptionable. (Para 32)

       The issuance of a notice to the Chief Justice to show cause why proceedings under the Contempt of Court Act be not initiated against him for transferring the part-heard writ petition No. 2949/96-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 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. (Para 33)

       Even otherwise, it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against 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. (Para 34)

       Section 16(1) of the Contempt of Court Act 1971 does not apply to the Judges of the court of record but only to the subordinate judiciary. (Para 35)

       The issuance of a notice to show cause why contempt proceedings be not initiated against respondent No. 2, the Chief Justice of the High Court, by Shethna, J. in the facts and circumstances of this case is thus wholly illegal, unwarranted and without jurisdiction. Issuance of such 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 order of reference of the part-heard writ petition to the Division Bench for its disposal, as already noticed, was legally sound and statutorily valid. Such an action on the part of a Chief Justice could never become a cause for issuance of contempt notice to him. To expect the Chief Justice to say so in response to the show cause notice before the learned single Judge would be adding insult to injury. We cannot countenance such a situation. The direction to issue show cause notice to the Chief Justice, respondent No.2 being totally misconceived, illegal and without any jurisdiction and is wholly unsustainable. We quash the same. (Para 36)

       (iii) Constitution of India-Article 136-Writ petition-Observations made by Judge of High Court against former Chief Justice of High Court of Rajasthan that they had 'illegally' drawn full daily allowance while sitting at Jaipur to which they were not entitled-Held factually incorrect, procedurally untenable and legally unsustainable-Finding recorded against present Chief Justice of India is wholly incorrect and legally unsound.

       Held that an order of this type, which violates essential principles of natural justice and is made behind the back of the affectee, is wholly unsustainable. On this short ground, all those comments/observations and conclusions arrived at by Shethna, J. are required to be quashed and expunged. (Para 39)

       It is wrong to allege that Verma, J had drawn daily allowance at the rate of Rs.250/- per day, which rate became affective much after Mr. Justice J.S. Verma had relinquished his office as the Chief Justice of Rajasthan High Court on his elevation to the Supreme Court. Surely, Shethna, J. could not have been unaware of this position. Why then did he choose to record an incorrect fact is not understandable? Insofar as the audit objection is concerned, as already noticed, the audit objection was raised for the first time after the audit was conducted between 8.1.1991 to 2.2.1991 and conveyed to the High Court on 30.3.1991. That audit objection pertained to the period 1.9.1988 to 31.12.1990. There was therefore no question of any audit objection- having been conveyed to the High Court till Justice Verma was elevated to the Supreme Court w. e. f. 3.6.1989. No audit objection had admittedly been raised during the tenure of Mr. Justice J.S. Verma and it is an incorrect statement to say that such an audit objection "was on the record of the High, Court". Even after the audit objection was for the first time conveyed to the Registrar of the High Court on 31.3.1991 it was never communicated to Verma, J. at any point of time. Shethna, J. has unfortunately 'distorted' facts, for reasons which can be any body's guess. Thus, the allegations (supra) against Mr. Justice J.S. Verma are factually incorrect and appear to have been made recklessly. (Para 50)

       Providing free boarding/lodging at the expense of the Central or the State Government or declaring the occupant as a "State Guest" is the sine qua non for attracting sub-clause (E) (ii) of Para 2 of the Rules (supra), not entitling a Judge including the Chief Justice to draw full daily allowance 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 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(ii) E of the Rules (supra). The Chief Justices were, therefore, not disentitled to draw their full daily allowances at the rates admissible at 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 daily allowance and not 50% of the D.A. 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.l. 10.6.1994 this appears to be quite in order and shows that the drawal of daily allowance at the full rate has nothing to do with the stay in the High Court Guest House. Admittedly, no audit objection has been raised to the drawal of the full daily allowance by the Chief Justices and payment of Rs. 10/- or Rs. 16/- per day for the occupation of the Guest House to the High Court since June 1994. By no stretch, of imagination can, therefore, it be said that any of the Chief Justices, till 1994, had "illegally" drawn the full daily allowance to which they were not entitled to.(Para 52)

       We, therefore, unhesitatingly come to the firm conclusion that the observations, comments, insinuations and allegations made by Shethna, J. in the matter of drawal of full daily allowance by the former Chief Justices of Rajasthan High Court including the present Chief Justice of India, Mr. Justice J.S. Verma, who used to stay in bungalow No.A/2 at Jaipur without payment of rent, are not sustainable both in law and on facts The allegations have been made irresponsibly and recklessly. There is no question of any "Misappropriation" of "public funds" by any former Chief Justice of the High Court of Rajasthan in the established facts of the case. Strong expressions have been used against the Head of the Indian Judicial Family without any factual matrix and legal justification. We express our serious disapproval of the manner in which the learned single Judge has done so as it does no credit to the office that he holds. (Para 54)

       (iv) ADMINISTRATION OF JUSTICE-A Judge, has inherent power to act freely upon his own conviction on any matter coming before him However, the Judge must exercise his powers within bounds of law and should not use intemperate language or pass derogatory remarks against other judicial functionaries, unless absolutely essential-Judicial restraint-Concept of.

       Held: Whereas we concede that a Judge has the inherent power to act freely upon his own conviction on any matter coming before him, but it is a principle of highest importance to the proper administration of justice that the Judge must exercise his powers within the bounds of law and should not use intemperate language or pass derogatory remarks against other judicial functionaries, unless it is and is wholly unsustainable. Absolutely essential for the decision of the case and is backed by factual accuracy and legal provisions. (Para 55)

       Judges must be circumspect and self disciplined in the discharge of their judicial functions. The virtue of humility in the Judges and a constant 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, in the public mind, for whatever reasons, is greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we "suffer from self-inflicted mortal wounds". We must remember that the constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member 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 (Para 55)

       Further held: By the very nature of their office, the Judges of the Supreme Court or the High Court cannot enter into a public controversy and file affidavits to 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 administrative work must remember that the criticism, even if outspoken, can only be of the judgment but not of the Judge. By casting aspersions on the Judges personally or using intemperate language against them, the critics, who ever 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 the former Chief Justices of that court including the present 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 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 we 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. Dangers from within have much larger and greater potential for harm than dangers from outside. We 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. We have been really distressed by the manner in which the learned Judge has acted. We do not wish to say anymore on this aspect. (Para 30)

       (v) JUDICIARY-No action can lie against a Judge of a Court of Record for a judicial act done by the Judge-Remedy is to approach higher forum-Extent of this immunity. (Judicial officers Protection Act, 1985)

       Held; it is a fundamental principle of our jurisprudence and it is in public interest also that no action can lie against 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 contempt of court is essential for maintaining independence of the judiciary and for the strength of the administration of justice. (Para 34)

       Result: Appeal allowed. Direction to issue show cause notice to the Chief Justice of the High Court quashed.