This petition under Sec. 482 CrPC, has been filed on behalf of the petitioner, who is practising Advocate of Ashoknagar (Guna), for expunging the remarks given against him by the trial Court, while rejecting his application for adjournment, vide impugned order dated 29.5.2000.

The impugned order dated 29.5.2000 was passed by the trial Court in a Criminal Misc. Case No. 64/95 (State of M.P. v. Sukka and others), in which an application was made by the' present petitioner seeking adjournment on the ground of self-illness, which was rejected by the impugned order and certain remarks were also passed against the petitioner/Advocate. The trial Court in the impugned order aforesaid also noted that the counsel has not been appearing from 9.3.96 onwards and nor he has filed memo of appearance on the record. While rejecting the application, the following remarks were passed by the trial Court as under:

vr% Li"V gS fd Jh ';keukjk;.k f=ikBh ,MoksdsV vfHk;qDrx.k dh vksj ls U;k;ky; ls Ny djrs gq, vfHk;qDrx.k dh iSjoh muds }kjk iwoZ esa fu;qDr vf/koDrk dh tkudkjh ds fcuk rFkk vukifr izkIr fd, fcuk U;k;ky; esa dj jgs gS tks vf/koDrk vf/kfu;e] 1961 ds varZxr dnkpj.k dh Js.kh esa vkrk gSaA

Jh ';keukjk;.k f=ikBh ,MoksdsV dk mDr vkpj.k fof/k fo:} gksus ds lkFk&lkFk O;kolkf;d dnkpj.k Hkh gS] rFkk e/;izns'k ckj dkmUlsy fu;ekoyh ,oa ,MoksdsVl ,DV] 1961 ds izko/kkuksa dk mYya?ku Hkh gS vr% vfHk;qDrx.k }kjk mudh vLoLFkrk ds vk/kkj ij izLrqr fd;k x;k vkosnu ,rn }kjk fujLr fd;k tkrk gSA

Jh ';keukjk;.k f=ikBh ,MoksdsV ds mDr dnkpj.k ds fy, bl vkns'k if=dk dh ,d izfr ckj dkmUlsy vkQ e-iz- tcyiqj dks mfpr dk;Zokgh gsrq izsf"kr gSA

Shri Saxena, learned Counsel for the applicant submits that the applicant was the counsel and he was appearing on behalf of the accused-persons, and he had filed the memo. It is submitted that on 29.5.2000 since the applicant himself was sick, he could not come to the Court and the application was filed by the accused-persons for adjourning the case. Shri Saxena stated that it was within the discretion of the Court to allow adjournment or refuse. The Court, however proceeded further and has passed the remarks, quoted above, which relate to the conduct of the applicant alleged to be mis-conduct and further that copy of the order has been forwarded to the Bar Council for taking action against professional ethics. It is contended that the remarks have been passed on the back of the applicant, without providing him any opportunity.

This contention has force. A perusal of the record goes to show that no notice had been issued to the applicant nor he was given any opportunity to show-cause against the alleged mis-conduct. The remarks which have been passed were on the adjournment application and not germane to the issue, i.e. grant of adjournment.

Learned Counsel representing the applicant on this point placed reliance on the decision of the Apex Court reported in AIR 1964 SC 703 [The State of V.P. v. Mohammad Naim], especially para 10 which is relevant and quoted below:

"...... If there is one principle of cardinal importance in the administration of justice, it is thus: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this Court. At the same time, it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint."

The Apex Court in the aforesaid case has further held that it has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before the Courts of law in cases to be decided by them, it is relevant to consider:

“(a) Whether the party whose conduct is in question before the Court has an opportunity of explaining or defending himself;

(b) Whether there is evidence on record bearing on that conduct justifying the

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