Madhya Pradesh High Court
Nitesh Bhargava vs The State Of Madhya Pradesh on 7 May, 2018
1
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
M.Cr.C.No.8528/2018
Nitesh Bhargava S/o Shri Suresh Chand
Bhargava, aged about 40 years, Occupation
-Presently working as Assistant Commandant
6 th Batallion, Jabalpur, District-Jabalpur, M.P.
Petitioner......
Vs.
1.State of M.P., through the Station
House Officer, Police Station, Kotwali
District-Tikamagarh, M.P.
2. Superintendent of Police, Tikamgarh
District-Tikamgarh, M.P.
Respondents....
_______________________________________________________
Present:- Hon'ble Shri Justice C.V. Sirpurkar
Shri Manish Datt, Senior counsel with Shri Siddarth Sharma,
counsel for the petitioner.
Shri Narendra Chourasiya, Government Advocate for the
respondent State.
______________________________________________________
ORDER
(07/05/2018)
1. This miscellaneous criminal case has been instituted on an application under Section 482 of the Cr.P.C. praying for expunction of adverse remarks made against the petitioner by the Court of First Additional Sessions Judge, Tikamgarh in the judgment dated 28.11.2017 passed in S.T.No.45/2017.
2. The facts necessary for disposal of this miscellaneous criminal case may be summarized as hereunder: Accused persons Hiralal and Fulabai were tried for the offences punishable under Sections 498-A and 304-B of the IPC for being relatives of husband of deceased Anita Bai and causing 2 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR M.Cr.C.No.8528/2018 her dowry death. By judgment dated 28.11.2017, the trial Court convicted both the accused persons under Sections 304-B and 498-A of the IPC; however, in paragraph no. 25 of the judgment, it was observed that petitioner SDOP, Nitesh Bhargava, who was the Investigating Officer in the case, did not try to ascertain whether the management of Devsudha Private Hospital, in which the deceased was admitted in a burnt condition after the incident, had given any intimation of the same to the concerned police station and if not, why? After receiving the marg intimation, the Investigating Officer commenced enquiry after considerable delay. After conclusion of the marg inquiry, he recorded the first information report (Ex.P/9) after undue delay, on 26.11.2016. This delay had not been explained by the Investigating Officer in his evidence. He also failed to interrogate any of the witnesses, who lived near the place of the incident. His explanation in this regard was that the people living nearby, had gone to harvest paddy crops, was not satisfactory because he did not specify as to where such people had gone for harvesting paddy.
3. In view of the aforesaid lapses, learned trial Court observed in paragraph no.26 of the judgment that those circumstances in their entirety, created doubt upon the conduct of the accused as well as the functioning of the Investigating Officer. It also disclosed the prevailing situation; wherein, even senior police officers investigate such heinous crimes which affect the society, in a careless and negligent manner. The trial Court further observed that senior most police officers are required to pay attention to such style of functioning of the petitioner.
4. Aforesaid adverse remarks made by the learned Judge in paragraph nos. 25 and 26 of the judgment are subject matter of challenge in this miscellaneous criminal case mainly on the ground that they were made without affording the petitioner an opportunity of being heard and thus violated the principle of natural justice.
5. It has further been submitted on behalf of the petitioner that as a consequence of aforesaid adverse remarks, Police Authorities have 3 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR M.Cr.C.No.8528/2018 instituted a preliminary enquiry against the petitioner and the Additional Superintendent of Police, Tikamgarh, has issued a notice against him on 20.12.2017.
6. In support of his contentions, learned counsel for the petitioner has invited attention of the Court to the judgments rendered by the Supreme Court in the case of State of U.P. Vs. Mohammad Naim, AIR 1964 SC 703, Om Prakash Chautala Vs. Kanwar Bhan and others, (2014) 5 SCC 417 and State of West Bengal Vs. Babu Chakraborthy, (2004) 12 SCC 201 and judgment passed by a co-ordinate Bench of this Court in the case of R. Rajan Vs. State of M.P., 2001 (1) MPLJ 660.
7. Learned Government Advocate for the respondent State on the other hand has supported the adverse remarks made in the judgment.
8. Having gone through the record of the case and judgment dated 28.11.2017 passed in S.T.No.45/2017 by the learned First Additional Session Judge, Tikamgarh and on due consideration of rival contentions, the Court is of the view that this miscellaneous criminal case must succeed for the reasons herein after stated:
7. A four Judge Bench of Supreme Court in the case of State of U.P. Vs. Mohammad Naim, (Supra) has held in paragraph no.11 that 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 emphasized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve. In the case of Babu Chakraborthy (Supra) the Supreme Court has held that making disparaging remarks or passing stricture against the Investigating Officer without affording an opportunity of being heard, is not justified. It was further held that disparaging remarks should not be made unless they are necessary for decision of the case. In the case of Omprakash 4 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR M.Cr.C.No.8528/2018 Chautala v. Kanwar Bhan and others, AIR 2014 SC 1220 the Supreme Court has reiterated the same principles.
8. In the case of R. Rajan (supra) a co-ordinate Bench of this Court has held that:
"While acquitting the accused the learned Judge passed a stricture against the Investigating Officer who is the petitioner before this Court to the effect that the conduct of the petitioner for not registering a criminal case for a month even after receiving the report of the Medico Legal Institute, becomes doubtful. On the basis of the above stricture passed against the petitioner a disciplinary action has been initiated against him. He has, therefore, filed this petition for expunction of the stricture passed against him."
9. The Court further held that:
"5. It is thus, clear that if the learned Judge intended to make any remark against the petitioner, the latter should have been given an opportunity of being heard. The petitioner was the Investigating Officer and the remarks were made in the judgment behind the back of the petitioner without affording him an opportunity of being heard. Thus, such remarks are uncalled for, unjust and are likely to adversely affect the career of the petitioner.
6. In view of the above, the remarks having been made by the learned Judge behind the back of the petitioner without giving him an opportunity of being heard, deserve to be expunged. The petition is, therefore, allowed. The stricture passed against the petitioner is expunged."
10. Reverting back to the present case, it may be noted that though, the Court has not specifically directed Police Authorities to take any departmental action against the petitioner; yet, the fact remains that on the basis of aforesaid remarks, the authorities have initiated preliminary proceedings, which may jeopardize the career prospects of the petitioner. Thus, passing disparaging remarks against the petitioner behind his back, without giving him an opportunity of being heard, has certainly violated the principles of natural justice. Hence, the remarks are not sustainable in the eyes of law.
11. Even if it is assumed for the sake of arguments that in the facts and circumstances of the case, the adverse remarks were justified, the trial Court could have proceeded to deliver the judgment and direct issuance of show-cause notice to the petitioner and institute a separate proceedings for the purpose. After affording the petitioner adequate opportunity of being 5 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR M.Cr.C.No.8528/2018 heard, the trial Court could have passed such remarks, if any, against the petitioner, as it might have deemed fit.
15. In aforesaid view of the matter, the adverse remarks as aforesaid, cannot be allowed to stand and deserve to be expunged.
16. Consequently, this petition under Section 482 of the Cr.P.C. is allowed and the adverse remarks passed by the trial Court in paragraph nos. 25 and 26 of the judgment dated 28.11.2017 passed by the Court of First Additional Session Judge, Tikamgarh in S.T. No.45/2017, are expunged.
(C.V. Sirpurkar) Judge sh Digitally signed by S HUSHMAT HUSSAIN Date: 2018.05.07 18:15:44 +05'30' 6 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR M.Cr.C.No.8528/2018 NITESH BHARGAVA Vs. STATE OF M.P. AND ANOTHER ORDER Post for : 04/05/2018 (C.V.Sirpurkar) Judge