Madras High Court
K.Muthupandi vs State Represented By on 30 October, 2014
1 Crl.O.P.No.29048 of 2018
IN THE HIGH COURT OF JUDICATURE AT MADRAS
Reserved on Delivered on
31.07.2019 05.08.2019
CORAM:
THE HONOURABLE MR. JUSTICE N. ANAND VENKATESH
Crl.OP No.29048 of 2018
K.Muthupandi ..Petitioner
.Vs.
State Represented by
Inspector of Police,
Sooramangalam Police Station,
Salem City. ..Respondent
PRAYER : Criminal Original Petition is filed under Section 482 of the
Code of Criminal Procedure, to expunge the disparaging remarks made
against the Petitioner in SC.No.92/2012, by the learned Principal
Session Court, Salem.
For Petitioner : Mr.G.Karuppusamy Pandian
For Respondent : Mr.M.Mohamed Riyaz, APP
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2 Crl.O.P.No.29048 of 2018
ORDER
This Criminal Original Petition has been filed to expunge the disparaging remarks made against the petitioner by the learned Principal Sessions Judge, Salem, while disposing of the case in S.C.No.92 of 2012.
2.The petitioner was working as the Inspector of Police of Sooramangalam Police Station. He conducted an investigation in Cr.No.484 of 2011, which was registered for an offence under Section 302 of IPC. The petitioner completed the investigation and filed a Final Report, which was subsequently committed to the Principal Sessions Court, Salem and was taken on file in SC.No.92 of 2012. Charges were framed and the trial was conducted and the trial Court after considering the entire materials available on record, was pleased to pass a judgment dated 30.10.2014, acquitting the accused persons from all the charges.
3.While passing the judgment, the Principal Sessions Judge, Salem, found that the petitioner had not conducted the investigation in a proper manner and had attempted to mislead the http://www.judis.nic.in 3 Crl.O.P.No.29048 of 2018 Court by filing certain documents, and therefore the same resulted in the acquittal of the accused persons. The trial Court therefore recorded a finding to that effect and recommended for departmental action against the petitioner. The trial Court further recommended that the petitioner should not be permitted to conduct investigation in any other case. While passing the said judgment, the trial Court took note of the judgment of the Hon'ble Supreme Court in State of Gujarat .Vs. Kishanbhai And Others reported in (2014) 5 SCC 108.
4.This judgment has become final. In view of the finding given by the trial Court, departmental proceedings were initiated against the petitioner and a show cause notice was also issued against him. Upon such development, the petitioner has approached this court after nearly four years, to expunge the remarks made against the petitioner by the Principal Sessions Court, Salem.
5.Mr.G.Karuppasamy Pandian, learned counsel for the petitioner submitted that the petitioner had conducted a proper investigation in this case, and therefore the trial Court ought not to have found fault with the investigation conducted by the petitioner.
The learned counsel further submitted that the petitioner should have http://www.judis.nic.in 4 Crl.O.P.No.29048 of 2018 been given an opportunity to give his explanation and only thereafter the trial Court should have proceeded to give its findings against the petitioner. Since it has not been done, the findings of the trial Court is in violation of principles of natural justice and the findings will have to be expunged by this Court.
6.The learned counsel for the petitioner in order to substantiate his submissions, relied upon the following judgments:
1. Dr.Dilip Kumar Deka And Another .Vs. State of Assam And Another reported in (1996) 6 SCC 234.
2. State of W.B .Vs. Mir Mohammad Omar And Others reported in (2000) 8 SCC 382.
3. State of W.B.And Others .Vs. Babu Chakraborthy reported in (2004) 12 SCC 201.
4. Om Prakash Chautala .Vs. Kanwar Bhan and Others reported in AIR 2014 SCC 1220.
5. State of Maharashtra and Others .Vs. Tasneem Rizwan Siddiquee reported in (2018) 4 MLJ (Crl) 211 (SC).
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7.Mr.M.Mohamed Riyaz, learned Additional Public Prosecutor appearing on behalf of the respondent submitted that the Court below has given a very specific finding as to why departmental proceedings should be ordered against the petitioner. The trial Court had taken into consideration the conduct of the petitioner wherein he had tried to mislead the Court by filing certain documents and the acquittal in the case was a result of the slipshod investigation conducted by the petitioner. The learned counsel submitted that, under such circumstances, no opportunity is contemplated and the trial Court was perfectly right in giving those findings. In order to substantiate his submissions, the learned Additional Public Prosecutor relied upon the judgment of the Hon'ble Supreme Court in State of Gujarat .Vs. Kishanbhai And Others reported in (2014) 5 SCC 108 and the Division Bench of this Court in The State .Vs. Sundararaj and Others reported in 2019 1 MLW (Crl) 506.
8. This Court has carefully considered the submissions made on either side and the materials available on record.
9. Before dealing with the main issue raised by the learned counsel for the petitioner, it will be useful to focus on the judgment of http://www.judis.nic.in 6 Crl.O.P.No.29048 of 2018 the trial Court and find out the reason as to why the trial Court made such remarks against the petitioner.
10. The petitioner was the Investigating Officer, who was investigating the case in Cr.No.484 of 2011, for an offence under Section 302 of IPC. In this case there was a case and counter in Cr.No.484 & 485 of 2011 and both these cases were registered at Suramangalam Police Station and the petitioner was the Investigating Officer in both the cases. The important defence that was taken in the case by the accused was that the petitioner did not property investigate the counter case in Cr.No.485 of 2011 and there was no material to show that the accused person was the aggressor in the case. That apart, the trial Court found that a Closure Report was prepared by the Investigating Officer in Cr.No.485 of 2011, however there were no records to show that this Closure Report along with all the materials was filed before the Court. There was also no record to show that the RCS notice was served upon the accused person, who was the de fact complainant in that case. The trial Court came to a conclusion that the petitioner failed to investigate the case strictly in accordance with PSO
588. This major flaw, proved fatal to the case of the prosecution and ultimately resulted in the acquittal of the accused persons. http://www.judis.nic.in 7 Crl.O.P.No.29048 of 2018
11.The findings of the trial Court in this regard is extracted hereunder for proper appreciation.
45/vjphp jug;gpy; thjpl;l mwpthh;ej ;
tHf;fwp"h; vjphpf;F Vw;gl;Ls;s fha';fs; vg;go Vw;gl;lJ vd;gij tpsf;Ffpd;w bghWg;g[ muR jug;g[fF ; cs;sJ vd;Wk;. nkYk;
vjphpahdth; vt;thW aggressor vd;gij g[yd;
tprhuiz mjpfhhp jhd; Kot[ bra;a
ntz;Lk; vd;Wk;. Mdhy; ,e;j tHf;fpy;
vjphpf;fhd fhar;rhd;wpjH; kUj;Jthplk;
bgwg;gl;L Mtzkhf Fwpaplg;gltpy;iy
vd;Wk;. nkYk; jkpH;ehL fhty; Jiw
epiyahiz vz;/688?d;go xnu
rk;gtj;jpd;nghJ eilbgw;w tHf;F kw;Wk;
vjph;tHf;F (case and counter case) Mfpa
,uz;L tHf;F nfhg;gf
[ spd; Mtz';fis
g[yd; tprhuiz mjpfhhp ePjpkd;wj;jpy;
rhl;rpak; mspf;Fk;nghJ muR jug;g[
rhd;whtz';fshf jhf;fy; bra;J. mJ
Fwpj;J rhl;rpak; mspf;f ntz;Lk; vd;Wk;.
mt;thW vjphpf;F Vw;gl;l
; jhf brhy;Yk;
fha';fs; Fwpj;J rhpahf muR jug;gpy;
tprhhpf;f;ggltpy;iy vd;Wk;. vdnt
m/rh/M?17 nfhg;g[ tHf;Ff;fhf
xg;ggilf;fg;gl;l Mtz';fs; vd;Wk;
thjplg;gl;lJ.
46/ nkYk; vjphp jug;gpy;
R{uk';fyk; fhty; epiya Fw;w vz;/485-2011
tHf;fpy; g[y;d tprhuiz bra;j mjpfhhp
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8 Crl.O.P.No.29048 of 2018
Kjy; jfty; mwpf;ifiaa[k;. vjphp bfhLj;j g[fhiua[k; kl;Lk; ePjpkd;wj;jpw;F mDg;gpa[ss ; hh; vd;Wk;. ntW tprhuiz thf;FK:y';fSk;. ,ju Mtz';fSk;
m/rh/M?17?y; fz;Ls;sgo vJt[k;
ePjpkd;wj;jpw;F mDg;gg;gltpy;iy vd;Wk;
thjpl;lhh;/ mjid epU:gpg;gjw;fhf nryk;
Fw;wtpay; ePjpj;Jiw eLth; vz;/2
ePjpkd;wj;jpy; jiyik vGj;juhf
cs;s gj;kehgd; vd;gth;/ v/j/rh/2?Mf
tprhhpf;fg;gl;Ls;shh;/ v/j/rh/M?1 mtuhy;
jhff;y; bra;ag;gl;Ls;sJ/ mjid ghprPyid
bra;jjpy; R{uk';fyk; fhty; epiya Fw;w
vz;/485-2011 tHf;fpd; Kjy; jfty; mwpf;if. vjphp bfhLj;j g[fhh; kw;Wk; efy; nfhhp jhf;fy; bra;j kD kl;Lnk cs;sJ/ Vida Mtz';fshd rhl;rpfspd; thf;FK:y';fs;.
vjphpapd; fhar;rhd;wpjH;. ,Wjp mwpf;if
nghd;w ve;j Mtz';fSk; jhf;fy;
bra;ag;gltpy;iy/ v/j/rh?1?y; fz;l
Mtz';fis jtpu ntW Mtz';fs; vJt[k;
jhf;fy bra;ag;gltpy;iy vd;W v/j/rh?2
jiyik vGj;jh; jpl;l
; tl;l
; khf rhl;rpak;
mspj;Js;shh;/ nkYk; mth; FWf;F
tprhuizapy; F/vz;/485-2011 tHf;fpy;
F/tp/K/r/ gphpt[ 161?d; goahd rhl;rpfspd;
thf;FK:y';fs; ntW tHf;F nfhg;gf
[ nshL
fye;jpUf;f tha;g;g[ss
; jh vd;gjw;F
,Uf;fyhk; vd;W brhy;ypapUf;fpwhh;/
mt;thW rhl;rpak; mspj;jjhnyna ,e;j
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9 Crl.O.P.No.29048 of 2018
m/rh/M?17 tHf;F nfhg;g[ midj;Jk;
ePjpkd;wj;jpy; jhf;fy; bra;ag;gl;Ltpl;lJ vd;W vLj;Jf;bfhs;s KoahJ/ 47/m/rh/M?17 mtz';fis ghprPyid bra;jjpy; 09/04/2011?k; njjpad;W Fw;w vz;/485-2011 tHf;if bghWj;jkl;oy;
; jhf (mistake of fact) fUjp tHf;if
gpiHa[ss
Koj;Js;sjhf m/rh/14 Ma;thsh;
ifbaGj;jpl;Ls;shh; vd;W bjhpfpwJ/
Mdhy; ,e;j tHf;F nfhg;gpy; cs;s
Mtz';fs; ePjpks;wj;jpw;F mDg;gg;gl;ljhf
brhy;tjw;F ve;j MtzKk; ,y;iy/ ve;j
ehspy; ,Wjp mwpf;if ePjpkd;wj;jpw;F
mDg;gg;gl;lJ vd;gjw;nfh my;yJ mjd;
nghpy; ePjpj;Jiw eLth; g[fhh; bfhLj;j vjphp ma;ag;gDf;F mwptpg;g[ mDg;gpajhfnth.
mt;thW mJ rhh;t[ bra;ag;gl;L. ePjpkd;wk; me;j ,Wjp mwpf;ifia Vw;Wf;bfhz;L Refer Charge Sheet Number bfhLj;jjhfnth ve;j tptuKk; ,e;j tHf;F nfhg;gpy; ,y;iy/ vjphpf;F jz;lid fpilf;f ntz;Lk; vd;w xnu nehf;fpy; ,e;j tHf;fpd; ,Wjp mwpf;fifia m/rh/14 jw;rkak; tHf;Ff;fhf jhf;fy; bra;Js;shh; vd;W vjphp jug;gpy;
thjplg;gl;lJ/ vdnt mJ cz;ikah vd;W
ghh;f
; f
; ntz;Lk;/
48/Fw;w vz;/486-2011 tHf;fpd;
,Wjp mwpf;ifapy; m/rh/14 fhty; Ma;thsh; 09/04/2011?;k njjpad;W ifbaGj;jpl;Ls;sh;h/ http://www.judis.nic.in 10 Crl.O.P.No.29048 of 2018 muR jug;[g tHf;fwp"h; 4?tJ khjk; vd;gJ jpUj;jg;gl;Ls;ssjhf thjpl;lhh;/ Mdhy; mjid ghprPyid bra;jjpy; Ma;thsh; jhd;
me;j njjpia mnj ngdh ikahy;
vGjpa[ss
; hh; vd;W bjhpfpwJ/ ehd;
Vw;fdnt brhd;dgo me;j tHf;if
tprhhpj;jpUe;jhy;. me;j Mtzk; gw;wpa
cz;ikj; jd;ik ePjpkd;wj;jpy; btspbfhz;L te;jpUf;f Koa[k;/ Mdhy; muR jug;gpy;
mt;thW bra;atpy;iy/ nkYk; m/rh/M?17 tHf;F nfhg;gpy; rz;Kfk; vd;w rpwg;g[ fhty; cjtp Ma;thsiu m/rh/14 fhty; Ma;thsh;
10/04/2011?y; tprhhpj;J thf;FK:yk; gjpt[
bra;Js;ssjhf fz;Ls;sJ/ mnjnghy ,e;j
tHf;fpy; jhf;fy; bra;ag;gl;Ls;s
F/tp/K/r/gphpt[ 161(3)?d; goahd
thf;FK:y';fis ghprPyid bra;jjpy; vjphpf;F rpfpr;ir mspj;j kUj;Jth; r';fiu fhty;
Ma;thsh; 11/04/2011?y; tprhhpj;jjhft[k;.
kw;bwhU kUj;Jtuhd lhf;lh; r';fj
P h
vd;gtiu 06/05/2011?y; tprhhpj;jjhft[k;
Ma;thsh; bra;Js;s ifbaGj;J kw;Wk;
njjpapypUe;J bjhpfpwJ/ nkYk; ,e;j
tHf;fpd; Mtz';fs; midj;Jk; 21/04/2011
kw;Wk; 30/05/2011?k; njjpad;W ePjpkd;wj;jpw;F
mDg;gg;gl;Ls;sjhf ePjpk;dw
Kj;jpiuapypUe;Jk;. ePjpj;Jiw eLthpd;
ifbaGj;jpypUe;Jk; bjhpfpwJ/ vdnt
vjphpf;F rpfpr;if mspj;j kUj;Jtiu
11/04/2011?y; tprhhpj;jjhf brhy;Yk;
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11 Crl.O.P.No.29048 of 2018
gl;lrj;jpy;. vjphp bfhLj;j g[fhh; gpiHa[ss ; J (mistake of fact) vd;W 09/04/2011?y; Ma;thsh; ,Wjp mwpf;if jhf;fy; bra;a vt;thW Kd;
te;jhh; vd;gjw;F tpsf;fk; vJt[k; ,y;iy/
vdnt ,e;j ,Wjp mwpf;ifahdJ ,e;j
tHf;Ff;fhf gpd;dh; jahh; bra;ag;gl;L jhf;fy; bra;ag;gl;oUf;f ntz;Lk; vd;gjpy; re;njfk; vJt[k; ,y;iy/ 50/ m/rh/M?17 tHf;F nfhg;ghdJ ,e;j tHf;Ff;fhf fhty; Jiwapduhy; jahh;
bra;ag;gl;Ls;sJ vd;Wk;. cz;ikapnyna ,e;j nfhg;g[ Vw;fdnt tprhhpj;J Kot[ bra;ag;gl;oUe;jhy; mjid m/rh/14 Ma;thsh;
jd;Dila tprhuizapnyna jhf;fy;
bra;jpUg;ghh; vd;Wk;. mJ Fwpj;J rhl;rpak;
mspf;f Kd; te;jpUg;ghh; vd;Wk;. Mdhy;
mt;thW mth; bra;a Kd; tutpy;iy vd;Wk;
Kot[ bra;fpnwd;/ vdnt m/rh/14 fhty;
Ma;thsh; ,e;j tHf;fpid rhpahd Kiwapy;
g[yd; tprhuiz bra;ahky; ,Ue;Js;shh; vd;W bjhpfpwJ/ 30/04/2011 tiu vjphp muR kUj;Jtkidapy; rpfpr;ir bgw;wjhf xg;gf [ ;bfhs;Sk; m/rh/14 fhty; Ma;thsh;
vt;thW tHf;F gpiHa[ilaJ vd
09/04/2011?nyna. mJt[k; fhar; rhd;wpjH;
bgwhknyna Kot[ bra;Js;shh; vd;W
bjhpatpy;iy/ ehd; Vw;fdnt brhd;dgo
,Wjp mwpf;fifia ePjpkd;wj;jpy; jhf;fy;
bra;jpUe;jhy; Refer Charge Sheet Number
bfhLf;fg;gl;oUf;Fk;/ mJ ,e;j tHf;F
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12 Crl.O.P.No.29048 of 2018
nfhg;gpy; brhy;yg;gl;oUf;Fk; Mdhy;
mt;tthW vJt[k; jhf;fy; bra;ag;gltpy;iy
vd;W v/j/rh/2 jiyik vGj;jh;
rhl;rpaj;jpypUe;J epU:gzkhfpwJ/
52/ m/rh/14 tHf;F tprhuiz
mjpfhupahd Kj;Jg;ghz;oad; ,e;j tHf;if
rhpahd Kiwapy; g[yd; tprhuiz bra;J.
jkpH;ehL fhty; Jiw epiyahiz
vz;/588?d;go ele;Jbfhs;s Kd;tutpy;iy
vd;W nkw;brhd;d fhuz';fshy; Kot[
bra;ag;gLfpwJ/ vdnt mth; kPJ flikia
bra;a jtwpajw;fhf fhty;Jiw JiwhPjpahd eltof;if vLf;f ntz;Lk; vd;W ,e;ej P pkd;wk; Kot[ bra;fpwJ/ nkYk; ,e;j gpur;rpid Fwpj;J khz;g[kpF cr;rePjpkd;wk; tH';fp tHpte;Js;s "2014 (1) T.N.L.R.225 (SC) (State of Gujarat -Vs- Kishanbhai Etc.)" vd;w jPh;Kotpy; gf;fk; 253?y; Twg;gl;Ls;s fPHf ; f ; z;l rhuhk;r';fis ,';nf Rl;of;fhl;LtJ kpft[k; mtrpakhfpwJ/ vdnt nkw;brhd;d khz;g[kpF cr;r ePjpkd;w jPh;Kotpd;go ,e;j tHf;if ghprPyid bra;jjpy; rhpahf g[yd; tprhuiz bra;ahj fhty;Jiw mjpfhhp kPJ cs;Jiw eltof;if vLf;f ntz;Lk; vd;W typa[Wj;jpa[ss ; J/ Vw;fdnt ehd; brhd;dgo m/rh/14 fhty; Ma;thsh; vjph; tHf;fhd Fw;w vz;/486-2011 tHf;fpy; rhpahd Kiwapy; g[yd; tprhuiz bra;atpy;iy vd;W nkw;brhd;d fhuz';fshy; Kot[ bra;ag;gl;Ls;sJ/ nkYk; http://www.judis.nic.in 13 Crl.O.P.No.29048 of 2018 mth; rhl;rpak; mspj;jjw;F gpd;dh; m/rh/M?17 MtzkhdJ kw;bwhU fhty; Ma;thsh;
K:ykhf rhd;whtzkhf Fwpaplg;gl;Ls;sJ/ ehd; Vw;fdnt brhd;dgo ePjpkd;wj;jpy; me;j tHf;fpd; ,Wjp mwpf;if jhf;fy; bra;ag;gl;L. ePjpj;Jiw eLth; ve;jtpjkhd cj;jut[k;
gpwg;gpj;jj;wfhd Mjhuk; vJt[k; ,y;iy/ mJ bjhpe;jpe;Jk; jhd; epahakhd Kiwapy;
g[yd; tprhuiz bra;J ,Wjp mwpf;if
jhf;fy; bra;tJ nghd;w njhw;wj;ij
Vw;gLj;jpa m/rh/14 fhty; Ma;thsh;
Kj;jJg;ghz;oad; nghypahf m/rh/M?17?y;
fz;l Mtz';fis j;wrkak; tHf;fpw;fhf
jahhpj;J ePjpk;dwj;ij Vkhw;w ntz;Lk; vd;w nehf;fpy; bray;gl;Ls;shh; vd;W nkny brhy;yg;gl;Ls;s fhuz'fspypUe;J Kot[ bra;ag;gLfpwJ/ vdnt Jiw hPjpahd eltof;if vLf;f. m/rh/14 fhty; Ma;thsh;
kj;Jg;ghz;oad; jw;fhypfkhdnth my;yJ epue;jukhfnth ,dp tUk; fhy';fspy; g[yd;
tprhuiz bra;a jkpH;ehL muR cs;Jiw jil tpjpf;fyhk; vd;W Kot[ bra;ag;gLfpwJ/ nkYk; m/rh/14 fhty; Ma;thsh;
Kj;J;gghz;oad; kPJ Jiw hPjpahd
eltof;if vLj;jhy;;jhd; fhty; Jiw
Ma;thsh;fs; tHf;if epahakhd kw;Wk;
rhpahd Kiwapy;. rl;l
; tpjpfSf;Fl;gl;lJ
tprhuiz bra;J ,Wjp mwpf;if jhf;fy;
bra;a tha;;g;g[ss
; J/
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14 Crl.O.P.No.29048 of 2018
53/ nkw;fz;l fhuz';fspd;go
ghh;f;ifapy; ,Ujug;gpYk; Kd;dpiyg;gLj;jg;gl;l
rhl;rpa';fs; kw;Wk; rhd;whtz';fspd;
mog;gilapy; ghh;f;Fk;nghJ m/rh/14 fhty;
Ma;thsh; ,e;j tHf;ifa[k;. vjph;tHf;ifa[k;
rhpahd Kiwapy; g[yd; tprhuiz bra;J.
cz;ik jd;ikia fz;lwpa Kaw;rp
bra;atpy;iy vd;Wk;. Mfnt muR jug;gpy;
vjph; kPJ rhl;lg;gl;Ls;s ,jr gphpt[ 3-
2?d;goahd Fw;wk; re;njfj;jpw;fplkpd;wp
epU:gzk; bra;ag;gltpy;iy vd;gjhy;.
re;njfj;jpd; gyid vjphpf;F ey;fp nkw;go
gphptpd; fPHhd Fw;wr;rhl;oypUe;J vjphp
tpLjiy bra;aj;jf;fth; vd;W Kot[
bra;ag;gLfpwJ/ nkYk; m/rh/14 fhty;
Ma;thsh; Kj;jJg;ghz;oad; tHf;fpid
rhpahd Kiwapy; g[yd; tprhuiz bra;ahky;
vjphpapd; tpLjiyf;F K:yfhuzkhf
mike;Js;sjhy; mth; kPJ JiwhPjpahd
eltof;if vLf;f fhty; Jiw jiytUf;F
,e;ej
P pkd;wk; ghpe;Jiu bra;fpwJ/
12. A careful reading of the above findings would clearly show that the trial Court had given the findings purely based on the records that were placed before the Court. The Court found that the petitioner had attempted to cover up his deficiency by introducing Ex.P-17 to give an impression to the Court that the counter case was closed by following due process of law.
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13.Now this Court will go into the main issue that has been raised by the learned counsel for the petitioner. The learned counsel for the petitioner submitted that such adverse findings cannot be made without giving an opportunity to the petitioner.
14.In order to decide this issue, this Court will first deal with the judgments that were relied upon by the learned counsel for the petitioner.
I. The Hon'ble Supreme in Dr.Dilip Kumar Deka referred supra, has held as follows:
6. The tests to be applied while dealing with the question of expunction of disparaging remarks against a person or authorities whose conduct comes in for consideration before a Court of law in cases to be decided by it were succinctly laid down by this Court in State in Uttar Pradesh vs. Moh. Naim (1964) 2 SCR 363.
Those tests are:
(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 http://www.judis.nic.in 16 Crl.O.P.No.29048 of 2018 conduct.
The above tests have been quoted with approval and applied by this Court in its subsequent judgments in Jage Ram, Inspector of Police & Anr. vs. Hans Raj Midha AIR 1972 SC 1140, R.K. Lakshmanan vs. A.K. Srinivasan AIR 1975 SC 1741 and Niranjan Patnaik vs. Sashibhusan Kar & Anr. AIR 1986 SC 819.
7. We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition, to defend themselves. It cannot be gainsaid that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Comdemnation of the appellants without giving them an opportunity of being heard was a complete negation of the fundamental principle of natural justice.
II. The Hon'ble Supreme Court in State of W.B referred supra, has held as follows:
41.Learned Judges of the Division Bench did not make any reference to any particular omission or lacuna in the investigation. Castigation of investigation unfortunately seems to be a regular practice when the trial courts acquit accused in criminal cases. In our perception it is almost impossible to come http://www.judis.nic.in 17 Crl.O.P.No.29048 of 2018 across a single case wherein the investigation was conducted completely flawless or absolutely foolproof.
The function of the criminal courts should not be wasted in picking out the lapses in investigation and by expressing unsavoury criticism against investigating officers. If offenders are acquitted only on account of flaws or defects in investigation, the cause of criminal justice becomes the victim. Effort should be made by courts to see that criminal justice is salvaged despite such defects in investigation. Courts should bear in mind the time constraints of the police officers in the present system, the ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above.
III. The Hon'ble Supreme Court in Babu Chakraborthy, referred supra has held as follows:
30. Replying to the arguments of Mr http://www.judis.nic.in 18 Crl.O.P.No.29048 of 2018 Viswanathan, Mr Tapash Ray, learned Senior Counsel submitted that the operating portion of the impugned judgment clearly brings out the perversity in the judgment. According to him, the strictures that have been passed against the appellants by the Division Bench of the High Court are wholly unjustified and are liable to be expunged. He is right in his submission. In our view, the High Court was not justified and correct in passing observations/strictures against Appellants 2 and 3 without affording an opportunity of being heard, and it is in violation of a catena of pronouncements of this Court that harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case.
Likewise, the directions issued by the High Court to the trial court to lodge a complaint to the Magistrate having jurisdiction for prosecuting Appellants 2 and 3 for having committed an offence under Section 58 of the Act read with Sections 166 and 167 of the Indian Penal Code is not warranted. The observations made by the High Court are liable to be expunged and accordingly, we expunge the same including the direction to lodge a complaint against Appellants 2 and 3.
IV. The Hon'ble Supreme Court in Om Prakash Chautala, referred supra, has held as follows:
"28. In view of the aforesaid analysis, we have http://www.judis.nic.in 19 Crl.O.P.No.29048 of 2018 no hesitation in holding that disparaging remarks, as recorded by the learned single Judge, are not necessary for arriving at the decision which he has rendered, the same being not an integral part and further that could not have been done when the appellant was not a party before the court and also he was never afforded an opportunity to explain his conduct, and the affirmation of the same by the Division Bench on the foundation that it has not caused any prejudice and he can fully defend himself when a subsequent litigation is instituted, are legally unacceptable. Accordingly, we expunge the extracted remarks hereinbefore and also any remarks which have been made that are likely to affect the reputation of the appellant. Since, the appeal is confined only to expunging of adverse remarks, the same is allowed. There shall be no order as to costs.
V. The Hon'ble Supreme Court in State of Maharashtra and Others, referred supra, has held as follows:
10. Reverting to the prayer for expunging the scathing observations made in the impugned judgment, in particular paragraphs 46, reproduced earlier, it is submitted that the said observations were wholly unwarranted as the concerned Deputy Commissioner of Police who was present in Court, could not have given concession to release Rizwan Alam Siddique in the teeth of a judicial order passed by the Magistrate directing police remand until 23rd http://www.judis.nic.in 20 Crl.O.P.No.29048 of 2018 March, 2018. Moreover, it is evident that the High Court proceeded to make observations without giving any opportunity, whatsoever, to the concerned police officials to explain the factual position on affidavit. The writ petition was filed on 18 th/19th March,2018 and was moved on 20th March,2018 when the Court called upon the Advocate for the appellants to produce the record on the next day i.e. 21st March, 2018. The impugned order came to be passed on 21st March,2018,notwithstanding the judicial order of remand operating till 23rd March, 2018. The High Court, in our opinion, should not have taken umbrage to the submission made on behalf of the Deputy Commissioner of Police that the respondent’s husband could be released if so directed by the Court. As aforesaid, the DCP has had no other option but to make such a submission. For, he could not have voluntarily released the accused who was in police custody pursuant to a judicial order in force. The High Court ought not to have made scathing observations even against the Investigating Officer without giving him opportunity to offer his explanation on affidavit.
15.A close reading of the above judgments brings out one crucial factor with regard to the circumstances under which such a finding can be given. Such a finding can be given where it is necessary for the decision of the case and it is an integral part thereof, to http://www.judis.nic.in 21 Crl.O.P.No.29048 of 2018 animadvert on that conduct. If the Court can take a decision in a case, even without commenting upon the conduct of a person involved in the case, it would be proper to deal with the merits of the case and render the decision, rather than making disparaging remarks against a party.
This is more so in cases where such a party is not even before the Court and the remarks itself has been made behind the back of such a party.
16.Such remarks cannot also be made in cases where some mistakes have been committed while discharging the official duty and there is no evidence or circumstance to show that there were any malafides on the part of the officer concerned.
17.It is true that the Hon'ble Supreme Court in State of W.B. .Vs. Mir Mohammad, referred supra, has cautioned courts from making unsavoury criticism against the Investigating Officers in a routine manner. The Hon'ble Supreme Court has held that the Police are investigating cases under time constraints with an ill-equipped machinery and have to cope up with the traditional apathy. Therefore, before castigating the Investigating Officer, the Court must ensure that such remarks are absolutely necessary in a given case. http://www.judis.nic.in 22 Crl.O.P.No.29048 of 2018
18.Giving an opportunity of hearing is not a rule which can be mechanically applied in all cases. It becomes a useless formality where a Court can render a finding based on the material and the conduct of the concerned officer who has very much available before the Court and the Court had closely observed his demeanor.
19.It will be very useful to take note of the judgment of the Hon'ble Supreme Court in State of Gujarat, referred supra in this regard. The relevant portion of the judgment is extracted hereunder:
"17. The investigating officials and the prosecutors involved in presenting this case, have miserably failed in discharging their duties. They have been instrumental in denying to serve the cause of justice. The misery of the family of the victim Gomi has remained unredressed. The perpetrators of a horrendous crime, involving extremely ruthless and savage treatment to the victim, have remained unpunished. A heartless and merciless criminal, who has committed an extremely heinous crime, has gone scot-free. He must be walking around in Ahmedabad, or some other city/town in India, with his head held high. A criminal on the move. Fearless and fearsome. Fearless now, because he could not be administered the http://www.judis.nic.in 23 Crl.O.P.No.29048 of 2018 punishment, he ought to have suffered. And fearsome, on account of his having remained unaffected by the brutal crime committed by him. His actions now, know of no barriers. He could be expected to act in an unfathomable savage manner, uncomprehendable to a sane mind.
18. As we discharge our responsibility in deciding the instant criminal appeal, we proceed to apply principles of law, and draw inferences. For, that is our job. We are trained, not to be swayed by mercy or compassion. We are trained to adjudicate without taking sides, and without being mindful of the consequences. We are required to adjudicate on the basis of well drawn parameters. We have done all that. Despite thereof, we feel crestfallen, heartbroken and sorrowful. We could not serve the cause of justice, to an innocent child. We could not even serve the cause of justice, to her immediate family. The members of the family of Gomi must never have stopped cursing themselves, for not adequately protecting their child from a prowler, who had snatched an opportunity to brutalise her, during their lapse in attentiveness. And if the prosecution version about motive is correct, the crime was committed for a mere consideration of Rs.1,000/-.
19. Every time there is an acquittal, the consequences are just the same, as have been noticed hereinabove. The purpose of justice has not been achieved. There is also another side to be taken into consideration. We have declared the accused- respondent innocent, by upholding the order of the http://www.judis.nic.in 24 Crl.O.P.No.29048 of 2018 High Court, giving him the benefit of doubt. He may be truly innocent, or he may have succeeded because of the lapses committed by the investigating/prosecuting teams. If he has escaped, despite being guilty, the investigating and the prosecution agencies must be deemed to have seriously messed it all up. And if the accused was wrongfully prosecuted, his suffering is unfathomable. Here also, the investigating and prosecuting agencies are blameworthy. It is therefore necessary, not to overlook even the hardship suffered by the accused, first during the trial of the case, and then at the appellate stages. An innocent person does not deserve to suffer the turmoil of a long drawn litigation, spanning over a decade, or more. The expenses incurred by an accused in his defence can dry up all his financial resources – ancestral or personal. Criminal litigation could also ordinarily involve financial borrowings. An accused can be expected to be under a financial debt, by the time his ordeal is over.
20. Numerous petitions are filed before this Court, praying for anticipatory bail (under Section 438 of the Code of Criminal Procedure) at the behest of persons apprehending arrest, or for bail (under Section 439 of the Code of Criminal Procedure) at the behest of persons already under detention. In a large number of such petitions, the main contention is of false implication. Likewise, many petitions seeking quashing of criminal proceeding (filed under Section 482 of the Code of Criminal Procedure) come up for hearing day after day, wherein also, the main contention is of http://www.judis.nic.in 25 Crl.O.P.No.29048 of 2018 fraudulent entanglement/involvement. In matters where prayers for anticipatory bail or for bail made under Sections 438 and 439 are denied, or where a quashing petition filed under Section 482 of the Code of Criminal Procedure is declined, the person concerned may have to suffer periods of incarceration for different lengths of time. They suffer captivity and confinement most of the times (at least where they are accused of serious offences), till the culmination of their trial. In case of their conviction, they would continue in confinement during the appellate stages also, and in matters which reach the Supreme Court, till the disposal of their appeals by this Court. By the time they are acquitted at the appellate stage, they may have undergone long years of custody. When acquitted by this Court, they may have suffered imprisonment of 10 years, or more. When they are acquitted (by the trial or the appellate court), no one returns to them; what was wrongfully taken away from them. The system responsible for the administration of justice, is responsible for having deprived them of their lives, equivalent to the period of their detention. It is not untrue, that for all the wrong reasons, innocent persons are subjected to suffer the ignominy of criminal prosecution and to suffer shame and humiliation. Just like it is the bounden duty of a court to serve the cause of justice to the victim, so also, it is the bounden duty of a court to ensure that an innocent person is not subjected to the rigours of criminal prosecution.
21.The situation referred to above needs to be http://www.judis.nic.in 26 Crl.O.P.No.29048 of 2018 remedied. For the said purpose, adherence to a simple procedure could serve the objective. We accordingly direct, that on the completion of the investigation in a criminal case, the prosecuting agency should apply its independent mind, and require all shortcomings to be rectified, if necessary by requiring further investigation. It should also be ensured, that the evidence gathered during investigation is truly and faithfully utilized, by confirming that all relevant witnesses and materials for proving the charges are conscientiously presented during the trial of a case. This would achieve two purposes. Only persons against whom there is sufficient evidence, will have to suffer the rigors of criminal prosecution. By following the above procedure, in most criminal prosecutions, the concerned agencies will be able to successfully establish the guilt of the accused.
22. Every acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. Likewise, every acquittal should ordinarily lead to the inference, that an innocent person was wrongfully prosecuted. It is therefore, essential that every State should put in place a procedural mechanism, which would ensure that the cause of justice is served, which would simultaneously ensure the safeguard of interest of those who are innocent. In furtherance of the above purpose, it is considered essential to direct the Home Department of every State, to examine all orders of acquittal and to record reasons for the failure of each prosecution case. A standing committee of senior officers of the police and http://www.judis.nic.in 27 Crl.O.P.No.29048 of 2018 prosecution departments, should be vested with aforesaid responsibility. The consideration at the hands of the above committee, should be utilized for crystalizing mistakes committed during investigation, and/or prosecution, or both. The Home Department of every State Government will incorporate in its existing training programmes for junior investigation/prosecution officials course- content drawn from the above consideration. The same should also constitute course- content of refresher training programmes, for senior investigating/prosecuting officials. The above responsibility for preparing training programmes for officials, should be vested in the same committee of senior officers referred to above. Judgments like the one in hand (depicting more than 10 glaring lapses in the investigation/prosecution of the case), and similar other judgments, may also be added to the training programmes. The course content will be reviewed by the above committee annually, on the basis of fresh inputs, including emerging scientific tools of investigation, judgments of Courts, and on the basis of experiences gained by the standing committee while examining failures, in unsuccessful prosecution of cases. We further direct, that the above training programme be put in place within 6 months. This would ensure that those persons who handle sensitive matters concerning investigation/prosecution are fully trained to handle the same. Thereupon, if any lapses are committed by them, they would not be able to feign innocence, when they are made liable to suffer http://www.judis.nic.in 28 Crl.O.P.No.29048 of 2018 departmental action, for their lapses.
23. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months.
20.The above judgment was taken as the basis by the trial http://www.judis.nic.in 29 Crl.O.P.No.29048 of 2018 Court while making remarks about the petitioner in the judgment and recommending for taking disciplinary action. The Hon'ble Supreme Court after taking note of the deleterious consequences of an acquittal in cases involving serious offences, has held that such acquittal should be understood as a failure of the justice delivery system, in serving the cause of justice. If an accused person had succeeded in a case due to the lapses committed by an Investigating Officer, the Investigating Agency must be deemed to have messed up the case, resulting in failure of justice. In all such cases, the erring officer must suffer the consequences, for his lapses. The Hon'ble Supreme Court has categorically held that in such cases departmental action must be initiated against the Investigating Officer and he should be withdrawn from investigative responsibilities temporarily or permanently depending upon his culpability. This is the only way in which seriousness can be infused in performing investigation in all criminal cases. Till courts become strict in following such a practise, the slipshod investigations are going to continue and it will seriously impair the criminal justice system.
21. In the considered view of this Court, the trial Court was perfectly right in making the remarks against the petitioner and http://www.judis.nic.in 30 Crl.O.P.No.29048 of 2018 recommending for taking disciplinary action against him. The petitioner was very much present before the trial Court and he had an opportunity to explain himself during the course of trial. The trial Court found that the evidence on record reflected the conduct of the petitioner, justifying such remarks. That apart, such remarks was necessary for taking the decision in the case, since it was an integral part thereof to animadvert on that conduct of the petitioner.
22.The judgments cited by the learned counsel for the petitioner dealt with cases where such adverse remarks were made against persons who were not before the Court or in cases where the decision did not require such adverse remarks or where the concerned officer had bonafide performed his official duty and in the course of which, some mistakes were committed. The facts of the present case did not require the trial Court to give an opportunity to the petitioner, before making the remarks in the judgment.
23.If in cases of this nature, where the acquittal itself was due to serious lapses on the part of the investigation officer, who has attempted to be cover up by introducing certain documents to mislead the Court and if opportunity is contemplated in such cases, it will lead http://www.judis.nic.in 31 Crl.O.P.No.29048 of 2018 to mockery of justice. The Hon'ble Supreme Court in Kishan Bai case, referred supra did not even remotely indicate for affording such an opportunity to the Investigation Officer, before giving a finding in the judgment and recommending for departmental action. This Court is therefore not in agreement with the plea raised by the learned counsel for the petitioner and the said argument is hereby rejected.
24.This Court does not find any illegality or infirmity in the findings of the trial Court rendered against the petitioner and recommending departmental action against the petitioner and there are absolutely no grounds to interfere with the same.
In the result, this Criminal Original Petition is dismissed.
05.08.2019 Index : Yes Internet: Yes Speaking Order/Non Speaking order KP To
1.Principal Session Court, Salem.
2.The Inspector of Police, Sooramangalam Police Station, http://www.judis.nic.in 32 Crl.O.P.No.29048 of 2018 Salem City.
3.The Public Prosecutor, High Court, Madras.
N. ANAND VENKATESH,. J.
KP Crl.OP No.29048 of 2018 http://www.judis.nic.in