Judgment:
Asok Potsangbam, J.
1. Heard Mr. N. Dutta, Ld. Sr. Counsel assisted by Mr. R. Singha, Ld. Counsel, on behalf of the Applicant. None appears on behalf of the respondents despite due service of notice.
2. The Applicant who is a Grade-I Judicial Officer of the Assam Judicial Service, is now working as Registrar General at the Principal Seat of the Gauhati High Court at Guwahati and he has filed this application for expunging the observation appearing in paras-6 and 8 of the Judgment and order dated 3.10.2005 passed by Hon'ble B.K. Sarma, J. in Review Petition Nos. 72, 73, 74 and 75 of 2005 and W.P. (C) Nos. 5416, 5401, 5282 and 5109 of 2005.
3. The case of the applicant is that the then Registrar General was directed by the then Hon'ble Chief to put up a note for preparation of appeal against the order dated 29.7.2005 passed in W.P. (C) No. 5416/ 2005, W.P. (C) No. 5401/05 and W.P. (C) No. 5282/05 and order dated 21.7.2005 which was reported in 2007 (2) GLT 683 and, accordingly, a note dated 2.8.2005 was put up by the then Registrar General and, thereafter, the then Hon'ble Chief Justice directed that appeal be filed against the aforesaid order at once by the High Court through the Registrar (I&E;) on the ground that the said orders were passed without authority and jurisdiction. The then Hon'ble Chief Justice by another order dated 3.8.2005 directed that review applications be filed by the Registrar (I&E;), instead of appeal, against the aforesaid orders. Accordingly, as per direction of the then Hon'ble Chief Justice, review applications being Review Application No. 72 of 2005 in W.P. (C)No. 5416/2005 against order dated 29.7.2005; Review Application No. 73 of 2005 in W.P. (C) No. 5401/2005 against order dated 29.7.2005; Review Application No. 74 of 2005 in W.P. (C) No. 5282/05 against order dated 29.7.2005; and Review Application No. 73 of 2005 in W.P. (C) No. 5109/05 against order dated 21.7.2005 were filed.
4. Further case of the applicant is that the applicant has recently come to learn from the publication of the judgment and order dated 3.10.2005, as reported in 2007 (2) GLT 683, that some disparaging observations have been made in para Nos. 6 and 8 of the judgment and order dated 3.10.2005 passed by the Hon'ble B.K. Sarma, J. in Review Petition Nos. 72, 73, 74 and 75 of 2005 and W. P. (C) No. 5416, 5401, 5282 and 5109 of 2005. The aforesaid paras 6 and 8 of the judgment dated 3.10.2005, reported in 2007(2) GLT 683, read as follows:
6. On perusal of the review petitions, it appears that the petitioner, purportedly the Registrar (I&E;) deliberately suppressed and/or withheld the aforesaid two circulars and contended that no Single Judge and not even the Hon'ble Chief Justice has got the power to transfer the cases to outlying Benches. Such statement coupled with the statements made against the court casting insinuations on the Judge concerned prima facie amounts to criminal contempt of this Court. I am of the considered opinion that all the ingredients of Section 2(c) of the Contempt of Court Act, 1971 are present in this case.
7.x x x x
8. The review applications were purportedly filed up the Registrar (I&E;). It appears that after the judicial orders were passed for transferring the cases to Itanagar Bench, the Registrar General had put up a note before the Hon'ble Chief Justice seeking his permission to transfer the cases to Itanagar Bench. It is not understood as to why such a course of action was adopted after the judicial orders were passed by this Court transferring the cases to Itanagar Bench and when no such course of action was adopted in all earlier cases of such orders passed by other Hon'ble Judges including the Division Bench transferring cases to outlying Benches. Thus, I am of the considered opinion that both the Registrar General and the Registrar (I&E;) involved in the review episode with the kind of statement made in the review applications casing insinuations on this Court are liable for contempt of Court proceeding.
5. It is also submitted that the aforesaid observation, as extracted above, have been passed by the Hon'ble Court without affording any opportunity to the applicant and that there were no materials for this Hon'ble Court to pass the aforesaid observation which were not absolutely required for deciding the controversy raised in the batch of review petitions and writ petitions before the Court. It is also submitted that the applicant has an unblemished service career without any adverse remark and that the observations, as extracted above, have caused grave prejudice to the applicant and his service, as such, the applicant prays that the aforesaid observation be expunged from the judgment and order dated 30.10.2004, as reported in 2007 (2) GLT 683 for the ends of justice.
6. Facts and circumstances which are associated with the matter have been elaborately discussed in the following cases reported in (a) 2007 (2) GLT 665 [Registrar (I&E;) Gauhati High Court, Guwhati v. Amarjit Borgohain and Ors.] (b) 2007 (2) GLT 682 [Registrar (I&E;) Gauhati High Court, Guwahati v. Amarjit Borgohain and Ors.] (c) 2007 (2) GLT 683 [Registrar (I&E;) Gauhati High Court, Guwahati v. Amarjit Borgohain and Ors.] and (d) 2007 (2) GLT 688 (Registrar (I&E;) Gauhati High Court, Guwahati v. Amarjit Borgohain and Ors.], as such, we shall confine ourself only to the facts which are necessary for our consideration. From the perusal of the records, it transpires that there is an apparent conflict between 2 (two) sets of decisions rendered by two different Ld. Single Judge of this Court, one being orders dated 3.8.2005 and 31.8.2005 passed in Review Petition Nos. 72, 73, 74 and 75 of 2005 by Hon'ble R.B. Mishra, J. (reported in 2007 (2) GLT 665 and 2007 (2) GLT 682). In that, it was held that the order dated 29.7.2005 passed by Hon'ble B.K. Sharma, J. transmitting the case records of W.P. (C) Nos. 5416, 5401 and 5282 of 2005 etc. from Principal Seat to Itanagar Bench for listing on 8.8.2005 as illegal and without competency as it is the prerogative of the Chief Justice and the Chief Justice alone can constitute bench (s) and distribute the business of the High Court both on administrative as well as on the judicial side.
7. Another being the order dated 3.10.2005 passed in Review Petition Nos. 72, 73, 74 and 75 of 2005 and W.P. (C) Nos. 5416, 5401, 5282 and 5109 of 2005, by Hon'ble B.K. Sharma, J. (reported in 2007 (2) GLT 683) holding that the finding recorded in the orders of the abovesaid Review Petitions is contrary to 2(two) circulars dated 25.11.1991 and 21.4.2001 issued by the High Court Registry as per order of the Hon'ble Chief Justice of the Gauhati High Court and long standing practice being followed by all the Hon'ble Judges of this Court. In that, the Ld. Single Bench also passed an order for placing the matter before the Hon'ble Chief Justice for his Lordships consideration to place the matter pertaining to Review before a Division Bench so as to resolve the issue, on the face of apparent conflict between the 2(two) said circulars and long standing practice being followed by this Court and the orders passed on Review. Pursuant to the aforesaid order dated 3.10.2005 passed by the Ld. Single Bench, the matter was placed before the Hon'ble Chief Justice on the administrative side for necessary order and the Hon'ble Chief Justice was pleased to pass an order on 28.11.2005 for placing the matter before a Division Bench. In the meantime, after considering the matter on its entirety, the Hon'ble Chief Justice was pleased to pass an order on 6.3.2006 for withdrawal of the 4 (four) Review Petitions and the order of the Chief Justice is as follows:
ORDER BY HON'BLE THE CHIEF JUSTICE
Review Petn. No. 72/05in W.P.(C) No. 5416/05Review Petn. No. 73/05in W.P.(C) No. 5401/05Review Petn. No. 74/05in W.P.(C) No. 5282/05Review Petn. No. 75/05in W.P.(C)No. 5109/05
ORDER
Having perused the entire materials available on record, including the orders passed from time to time ultimately culminating in the learned Single Judge's order initiating contempt proceedings against the then Registrar (I &E;), I consider it appropriate to direct the Registrar (Judicial) to file appropriate application proposing to withdraw the very review petition for which purpose he shall consult the Standing Counsel for the High Court.
Appropriate steps be taken in this regard forthwith.
Sd/-Chief Justice06.03.2006.
8. Consequent upon the aforesaid order of the Hon'ble Chief Justice, the Registry of the High Court filed applications for withdrawal of the Review Petition Nos. 72, 73, 74 and 75 of 2005 and the prayer was allowed by an order dated 8.3.2006 passed by this Court (reported in 2007(2) GLT 688). While allowing withdrawal of the aforesaid Review Petitions, this Court also recalled the orders dated 3.8.2005 and 31.8.2005 passed in the Review Petitions referred to above and it was further ordered that these orders would not form part of the records of the connected Writ Petitions. However, no order was passed by the Division Bench either recalling or modifying any part or portion of the judgment and order dated 3.10.2005 passed by Hon'ble B.K. Sharma, J. Hence this Application.
9. It is submitted by Mr. N. Dutta, the Ld. Senior Counsel that the applicant, while working as Registrar (I&E;), had simply carried out the direction given by the then Hon'ble Chief Justice of the High Court as the applicant was not in a position to disobey the order and direction given by the then Hon'ble Chief Justice of the High Court. It is further submitted that the applicant as Registrar (I&E;), now Registrar General of this High Court, has the highest respect for all the Hon'ble Judges of the High Court and he has no prejudice, malice and or personal interest in any of the review petitions and writ petitions referred to above. That apart, the applicant had not signed any of the review petitions referred to above nor did he swear any affidavit on behalf of the review petitioner, High Court. He only signed the Vakalatnama as directed by the then Hon'ble Chief Justice and, as such, the observation of the learned Single Judge appearing in paras-6 and 8 of the and order dated 3.10.2005, is uncalled for and expunction of the same from the record of this Court is also required to protect the image, reputation and unblemished service career of the applicant.
10. The Ld. Senior Counsel further submits that in view of withdrawal of the Review Petitions referred to above and recall of orders dated 3.8.2005 and 31.8.2005 passed by the Review Court as discussed above, what had been said and done in the Review Petitions would stand wiped out/obliterated from the judicial record of the connected cases. In other words, Review Petitions and orders passed by Hon'ble R.B. Mishra, J., in the Review Petitions shall be treated as non-est in the eye of law. The Ld. Senior Counsel further submits that the High Court being a higher Court of records with plenary jurisdiction, have ample power to examine and expunge, if necessary, any disparaging or objectionable remarks/observation made against an individual, officer of the subordinate Courts and counsels etc. from any judgment and order. It is true that a person aggrieved by a disparaging or an objectionable remark made by the Court is not without any remedy as he may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remark which jurisdiction vests with in the High Court by virtue of being a Court of record and also possessing inherent power and this view is settled by the law laid down in AIR 1964 SC 1 (Raghubir Saran v. State of Bihar).
11. In AIR 1964 SC 703 (State of Uttar Pradesh v. Mohd. Naim), the Apex Court lays down the following:
It has beep judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.
12. The views expressed in the case of Raghubir Saran and Mohd. Naim (supra) are reiterated in (1990) 2 SCC 533 (A.M. Mathur v. Pramod Kumar Gupta) and (2001) 3 SCC 54 ('K', A Judicial Officer, In Re) and the test laid down in Mohd. Naim's case is still followed as guiding principles while adjudicating cases relating to expunction of disparaging or objectionable remarks/observation made by the Court against individual, officer and counsel etc. Further, in (2005) 6 SCC 767 (Samya Sett. v. Shambhu Sarkar), the Apex Court held that any disparaging or objectionable remark/observation made by a Ld. Single Judge of a High Court against the Appellant therein should be deleted as not justified if such disparaging or objectionable remarks/observation made by the Ld. Judge of the High Court is not necessary for deciding the controversy raised before the Court nor an integral part of the judgment.
13. In the backdrop of the above discussion, two proposition of law emerged for consideration of this Court. Firstly, it is axiomatic about the existence of inherent power and jurisdiction of this Court, as such, a person aggrieved by any disparaging or objection-able remark/observation made by a Court against him can approach the High Court invoking its inherent power and plenary jurisdiction to consider for expunction of the same from the judicial record. Secondly, the consistent policy of the Court in such matter is to exercise restraint from passing any disparaging or objectionable remark/observation against individual, officer, counsel, etc. unless such disparaging or objectionable remark/ observation is absolutely required for deciding the controversy raised before the Court and such disparaging or objectionable remark/ observation should also necessarily form an integral part of the judgment and order of the Court.
14. Be that as it may, the offending para Nos. 6 and 8, as quoted above, which are sought to be expunged in this application relate to and originate from Review Petition Nos. 72, 73, 74 and 75 of 2005 which are the basis for the controversy raised in the cases referred to in the foregoing para Nos. 2 and 3 of this order and these Review Petitions have now been withdrawn with the leave of this Court by an order dated 8.3.2006 and orders dated 3.8.2005 and 31.8.2005 passed in the Review Petitions by Hon'ble R.B. Mishra, J., have also been recalled by this Court and these facts cannot be lost sight of.
15. In the facts and circumstances, as discussed above, we find the prayer of the applicant to expunge the observation appearing in para Nos. 6 and 8 of the judgment and order dated 3.10.2005 (reported in 2007 (2) GLT 683) as reasonable and acceptable. Having considered all aspects of the matter, this Court is also of the opinion that para Nos. 6 and 8, as mentioned above, are not absolutely required for deciding the controversy raised in the batch of Review Petitions and Writ Petitions before the High Court. Accordingly, in exercise of inherent power and plenary jurisdiction of this Court, it is ordered that the aforesaid para Nos. 6 and 8 be expugned/deleted from the judgment and order dated 3.10.2005 reported in 2007(2) GLT 683.
This Application is allowed to the extent indicated above.
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