Pot calling the kettle black?

PERHAPS IT IS A BAD TIME FOR THE ALLAHABAD HIGH COURT. Some 15 years ago, Justice Markandey Katju sitting in the Supreme Court observed in a judicial order:-  

“The Allahabad High Court really needs some house cleaning (both Allahabad and Lucknow Bench), and we request Hon'ble the Chief Justice of the High Court to do the needful, even if he has to take some strong measures, including recommending transfers of the incorrigibles.” 

(Raja Khan v. U.P.Sunni Central Wakf Board, 2011 (2) SCC 741)

One is not sure whether the Augean stables have been cleared or not. But we get more news of judges of that court, in the latest instance, due to the remarks (now recalled) passed against Justice Prashant Kumar of the Allahabad High Court by the Supreme Court in an order passed on August 4.  Never in the 75 years of history of the Supreme Court had any such judicial order been passed against a sitting judge of a High Court. 

Following this, in fact, thirteen senior judges of the Allahabad High Court yesterday wrote to the Chief Justice of the High Court to not abide by the Supreme Court’s order. In the morning today, on August 8, in an unusual development, the Supreme Court recalled the order, noting that its intention was “not to cause embarrassment or cast aspersions on the concerned judge.”

An erroneous order and a harsh stricture

On May 5, 2025, a bench of Justice Kumar had passed a controvertible order in a criminal miscellaneous application. The case originally arose from a private complaint by a party, who was an unpaid seller, for the recovery of a balance amount of nearly Rs 7 lakh rupees. This was, in essence, a civil dispute - something the police pointed out while refusing to register an FIR. However, the magistrate not only took cognizance of the complaint but also initiated magisterial inquiry, and at the end of that, issued process for the offences punishable under Section 406 of the Indian Penal Code, relating to criminal breach of trust. On challenge, Justice Kumar at the High Court upheld the magistrate’s order. Given that there was no question of entrustment of goods in the case, there could not have been a charge under either Sections 420 (cheating) or 406 (criminal breach of trust). And yet, back to back, two successive courts had allowed the conversion of a purely civil dispute into a criminal proceeding, in what was essentially an abuse of the legal process.

When the aggrieved party finally came before the Supreme Court in a criminal appeal, the division bench comprising Justices J.B.Pardiwala and R Mahadevan not only set aside the order of Justice Kumar (noting that it was “one of the worst and most erroneous orders [they] had come across in their respective tenures as judges” of the top Court), but also gave shocking directions. Para 24 of the order spelt out that the Chief Justice of the Allahabad High Court should withdraw the criminal appeal from Justice Kumar and he should be made to sit as a junior member of a division bench and that he should not be assigned any criminal cases. 

Expected uproar followed. First, thirteen judges of the High Court wrote to the High Court Chief Justice urging him to not implement the directions, even as CJI B.R. Gavai wrote to Justice Pardiwala’s bench requesting the reconsideration of the strictures. 

On the morning of August 8, today, recalling the earlier directives, Justice Pardiwala observed, “The HCs are not separate islands that can be disassociated from the institution. Whatever we said in our order was to ensure that the dignity of the judiciary is held high.” He noted that as per CJI Gavai’s request, paras 25 and 26 from the August 4 order were hereby deleted, and left it to the High Court Chief Justice to “look into the matter.”

How the Supreme Court overstepped

The Supreme Court’s handling of the issue rightfully raised concerns, particularly when it could have simply set aside the problematic order (and we must note that the order was indeed of an “erroneous” nature, and such abuse of the process of law has been repeatedly discouraged by precedents). Instead, the Court seems to have overstepped to exercise a supervisory jurisdiction it does not have on the judicial side, and usurped the role of the Chief Justice of the High Court as master of the roster.