SC expunges remarks against sitting judge of Gauhati HC in 2017 verdict

The Supreme Court has expunged adverse remarks by a high court bench against a sitting Gauhati high court judge's 2017 verdict when he was special National Investigation Agency court judge and was hearing a terror related case.

A bench of justices AS Bopanna and PS Narasimha clarified that the rest of the high court judgment would continue to be in force.

"We are of the opinion that the adverse observations against the petitioner as contained in paragraphs 130, 190,191, 192, 193,194 and 233 and in any other relevant portion of the order are treated as expunged and shall not be held against the petitioner in any manner.

"Dehors the said observations which are expunged the order/judgment would remain in force, to be considered on its merits, if it arises subsequently in any other case," the bench said.

The top court had earlier issued notice to the National Investigation Agency (NIA) and allowed the case to be listed "without disclosing the identity of the petitioner".

In his plea, the judge sought expunction of "certain disparaging remarks" made against him in the high court verdict dated August 11.

The high court had acquitted multiple persons who were earlier convicted for alleged offences under various provisions of the Indian Penal Code and the Unlawful Activities (Prevention) Act by the trial court.

The judge said that on May 22, 2017, he in "his capacity as the Special Judge, NIA, Guwahati, Assam, delivered judgement in Special NIA Case...convicting the accused persons for various offences under the IPC and Unlawful Activities (Prevention) Act, 1967 and the Arms Act, 1959".

He said he had awarded varied sentences to 13 convicted people. Thereafter, the convicted persons approached the high court challenging the conviction order and the HC pronounced its verdict on August 11.

"The petitioner respectfully submits that the said observations/remarks were not necessary for deciding the appeal and rendering the impugned judgement and, therefore, ought to have been avoided," he said.

The judge further said, "The remarks have deeply hurt the petitioner's reputation before his colleagues, lawyers and litigants and are disturbing his peace of mind besides affecting him in discharging his judicial duties with calm and confidence. The remarks can also adversely affect the petitioner's career in future."

He said the high court, while deciding the appeal of the convicts and criticising the judgement of the subordinate court, has failed to adhere to the well-settled principles as discussed by the apex court in a catena of decisions.

"There is always a thin line of difference between 'criticising a judge' and 'criticising a ruling'. It is often said that a judge, who has not committed an error, is yet to be born. This dictum applies to all the learned judges at all levels from the lowest to the highest," the judge said, adding the role of the high court is always of a friend, philosopher and guide of the judiciary subordinate to it.

In his plea, the judge said, "The high court has failed to appreciate the fact that the Special NIA case registered under the Unlawful Activities (Prevention) Act, and Arms Act, 1959, relates to the trial on terrorism - prosecution aimed at prosecuting the accused for procurement of arms for waging wars against India, disrupting developmental activities in the region, killing of innocent people, CRPF personnel and Assam Police personnel in 2008 and other allied terrorism activities."

He stated that in such a complex and voluminous case, while appreciating the evidence, the trial court has to take a conscientious understanding of law and evidence and there cannot be a "mathematical precision" in the appreciation of evidence.

"It is submitted that the high court has failed to appreciate that the petitioner assumed the role of the NIA judge on January 9, 2017, and at that point, the entire trial had reached its culmination, including presentation of prosecution evidence, examination of accused under section 313 of the CrPC, and the submission of defence evidence. The petitioner's role was confined to presiding over arguments," he said.

The remarks, the judge said, wherein his conduct is being questioned, have promoted, beyond all probability, "irreparable harm to the petitioner, who is a serving member of the judiciary, in light of the fact that the common impugned judgement dated August 11, 2023 has been widely circulated".