Karnataka High Court
Mr. Hanumantharaya S/O Bheemraya vs The State Of Karnataka on 29 September, 2022
Author: P.N.Desai
Bench: P.N.Desai
1
R
IN THE HIGH COURT OF KARNATAKA
KALABURAGI BENCH
DATED THIS THE 29TH DAY OF SEPTEMBER, 2022
BEFORE
THE HON'BLE MR. JUSTICE P.N.DESAI
CRIMINAL PETITION NO.201012/2022
BETWEEN:
MR. HANUMANTHARAYA
S/O. BHEEMRAYA,
AGED ABOUT 44 YEARS,
OCC:WORKING AS
INSPECTOR OF POLICE,
DIRECTOR OF CIVIL RIGHTS ENFORCEMENT,
BANGALORE REGION,
KAVERI BHAVAN,
KG ROAD,
BANGALORE - 560009
...PETITIONER
(BY SHRI.G.V.CHANDRASHEKAR, SR.COUNSEL
FOR SHRI.GANESH NAIK, ADVOCATE)
AND:
THE STATE OF KARNATAKA,
REPRESENTED BY CHOWK POLICE KALABURAGI,
THROUGH ITS RESPT.
BY ADDITIONAL SPP
HIGH COURT OF KARNATAKA
AT KALABURAGI BENCH
DIST:KALABURAGI - 585107
...RESPONDENT
(BY SHRI.VEERANAGOUDA MALIPATIL, HCGP)
THIS CRIMINAL PETITION IS FILED UNDER SECTION 482 OF
THE CODE OF CRIMINAL PROCEDURE, 1973, SEEKING TO QUASH
THE REMARKS AND THE DIRECTION MADE BY THE LEARNED
SESSIONS JUDGE IN ITS JUDGMENT PASSED IN S.C.NO.146/2010
DATED 19.03.2018 ON THE FILE OF III ADDITIONAL SESSIONS
JUDGE, KALABURAGI.
2
THIS PETITION COMING ON FOR DICTATING ORDERS THIS
DAY, THE COURT PASSED THE FOLLOWING:
ORDER
This petition is filed under Section 482 of Code of Criminal Procedure (for short hereinafter referred to as 'Cr.P.C.') seeking to quash/expunge the remarks and the direction given in the judgment passed in Special Case No.146/2010 dated 19.03.2018 by the III Additional Sessions Judge, Kalaburagi.
2. It is contended by the petitioner that, the petitioner was appointed as Sub-Inspector of Police on 13.03.2001. Thereafter, he was promoted as Inspector of Police and posted to Chowk police Station, Gulbarga during the year 2009.
3. On 04.12.2019 there was a murder of one Sharanabasappa at about 07:30 p.m. at Gulbarga which comes under the jurisdiction of petitioner's police station. On the said date, as the petitioner was out of the head quarter, he got the information at 09:00 p.m. from one of his subordinates about the murder. The said information of murder was given to the police by one Kasthurabai who is the 3 mother of the deceased. On receipt of information, the petitioner immediately rushed to the spot. The higher Police officials also came to the spot. The alleged incident occurred at 07:30 p.m. in the presence of many persons. Thereafter, the petitioner ordered for securing dog squad for investigation. In the meantime, the mother of the deceased - Kasthurabai lodged a complaint mentioning the names of the assailants. Then, the police sent the dead body for post- mortem. Immediately, the petitioner took up the investigation and arrested four accused persons. During the investigation, the petitioner also came to know that there is involvement of one Anantharaj and others. The petitioner orally requested his Higher Officers to appoint another investigation officer for the reason that some of the accused particularly, Anantharaj who was involved in the crime had an axe to grind against the petitioner. It is alleged that said Ananthraju was involved in illegal activities, misused the government fund and there were complaints against him. The petitioner had commenced the investigation against the said Anantharaj, but the said Anantharaj just to take revenge and derail the process of investigation, has given a false 4 complaint against the petitioner for the offences under Prevention of Corruption Act, making allegations of demand of bribe from the petitioner. The petitioner was subsequently discharged in the criminal case by order dated 09.02.2017. However, the petitioner requested the higher official to change him as the Investigating Officer in this case. By then there was wide publicity to the incident which had taken place, in this background, the higher officers of petitioner informed the petitioner to continue the investigation till another investigating officer is appointed so that there should not be any delay in the investigation. Subsequently, another Investigating Officer took up the investigation and the petitioner handed over further investigation to another Investigation Officer on 22.12.2009.
4. It is alleged that the said new Investigation Officer has filed the charge sheet against four persons only and dropped the names of 11 accused persons in his report dated 09.02.2010 filed under Section 173 Cr.P.C. The report submitted by the new Investigating Officer to Superintendent of Police for approval was not accepted and the Superintendent of police issued a memo to the new 5 Investigating Officer and directed to file charge sheet against all the 15 accused persons. Again, the Investigating Officer sought for permission to file charge sheet against only four persons which was rejected. Inspite of that, he filed charge sheet against only four accused persons. All the accused are named at the time of preliminary enquiry of the crime. Except Anantharaj, the other accused were arrested at the time of preliminary enquiry.
5. It is further alleged that new Investigation Officer introduced some photographs stated to have been taken by the media person. They were all digitally doctored photographs. This was done at the behest of those accused against whom charge sheet was not filed including Anantharaj. This was done to blame the petitioner who was the earlier enquiry officer. During the course of trial, it came to light that there was enough material against the other accused who have been dropped including Ananthraj from the charge sheet. The prosecutor filed an application under Section 319 of Cr.P.C. to add accused Nos.5 to 15 namely the accused who were dropped by the subsequent Investigating Officer in the charge sheet. Thereafter, names of 11 accused 6 were added as accused in the case and again evidence was recorded afresh. But the eye witnesses turned hostile and did not support the case of the prosecution. It shows that the accused who have been added subsequently are influential persons. The said re-investigation was done without the authority of law. Again the statement of witnesses were recorded in order to facilitate the accused.
6. The learned Sessions Judge after trial acquitted all the accused. But the learned Sessions Judge found fault with the petitioner's investigation. Without giving any opportunity to preliminary Investigating Officer/petitioner, passed remarks against him and also directed for departmental enquiry against petitioner. Subsequent to that, a notice was issued to the petitioner by Additional Director General of Police on 25.05.2018. The petitioner replied the notice. The Additional Director General of Police passed an order of punishment withholding four increments of the petitioner with cumulative effect. Aggrieved by the same, the petitioner approached the Karnataka State Administrative Tribunal (for short 'Tribunal'), Bengaluru in application No.3602/2019. The Tribunal allowed the said application vide 7 order dated 22.07.2019 and gave liberty to the department to initiate action afresh. The department did not take any action for three years. When the petitioner was due for promotion on 04.06.2022, again charge memo was issued seeking to hold an enquiry against the petitioner. Same is now challenged before this Court.
7. Heard Sri. G.V.Chandrashekar, learned Senior counsel appearing for Sri. Ganesh Naik, learned counsel for the petitioner and Sri. Veeranagouda Malipatil, learned HCGP for State.
8. Learned Senior counsel for the petitioner argued that the learned sessions judge is not justified in passing the remarks on the petitioner and giving liberty to the department to hold enquiry against petitioner. Such order was passed without giving an opportunity to the petitioner to justify the investigation process. Therefore, such remarks or directions are in violation of principles of natural justice. Learned Senior counsel also argued that the observations made by the learned sessions judge are against the facts and circumstances of the case and evidence of prosecution witnesses. The said remark affects the petitioner's career. 8 Though the petitioner during his investigation has arrested all the accused and submitted a report but subsequent to that a new Investigation officer has short listed only four accused and dropped the other accused from the charge sheet. The order of the learned sessions judge in adding those accused Nos.5 to 15 under Section 319 of Cr.P.C itself shows that earlier investigating officer/petitioner has rightly included all the accused at crime stage. Learned senior counsel also argued that the trial court in its judgment relied on photos alleged to have taken by one of the media persons. But they are not proved in accordance with the Evidence Act. The Trial Court erred in placing reliance on the photos to pass strictures against the petitioner and find fault with the investigation done by petitioner. The said photos were concocted and nobody had given those photos to the petitioner during his investigation. But subsequent investigating officer/PW.51 has stated to have been examined one Raju Hudanooru, who stated that, on his own he came to the spot as a media person and took photos of scene of offence place and he has taken 09 photos. But 18 photos were marked before the Trial Court. He also stated 9 that only on demand by the police, he has given those photos to subsequent investigating officer. The new investigating officer has stated in his evidence that Raju has given 21 photos. It is strange that Photographer Raju has given a bill dated 06.02.2010, wherein the bill reflects 18 photos along with one CD. The said Raju was examined as PW.18 on 18.05.2015. Learned senior counsel argued that when the petitioner investigated the matter there was an injury on the abdomen of the deceased. However, the knife was not found in the body. Other weapons except the one seized by the petitioner were not seen at the scene of offence place. The trial court has not played the C.D to verify the correctness of the said photos which are marked as exhibits. The impugned order passed by the learned sessions judge without giving an opportunity of being heard the petitioner is liable to be set aside. Learned counsel in support of his contention relied upon the decision in the case of State of Uttar Pradesh Vs. Mohammad Naim reported in 1964 (2) SCR 363 and relied on paragraph Nos.2 and 11 wherein the Hon'ble Supreme Court has discussed as to whether the party whose conduct is in question is before the court has an opportunity 10 of explaining or defending himself, whether there is evidence on record bearing on that conduct justifying the remarks, whether it is necessary for the decision of the case, is an integral part thereof. Learned counsel also relied on the decision in the case of Niranjan Patnaik Vs. Sashibhusan Kar and another reported in 1986(2) SCC 569 wherein Hon'ble Supreme Court held that "it is a settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct". Learned counsel also relied on another decision of Hon'ble Supreme Court in the case of Anvar P.V. Vs. P.K.Basheer and others reported in (2014) 10 SCC 473 wherein the Hon'ble Supreme Court dealt with Sections 65-A, 65-B and 62 of Indian Evidence Act and held that secondary evidence of electronic record shall be accompanied by a certificate which is the mandatory requirement enumerated and such certificate must accompany electronic record like CD, VCD, pen drive, etc., which contains the statement which is sought to be given as 11 secondary evidence. Learned counsel also relied on another decision of Kerala High Court in the case of C.Jayachandran Nair Vs. State of Kerala reported in 2009 SC online Ker 1331. The Kerala High Court has referred to the observation made by the Additional Sessions judge, wherein he has expressed displeasure and dissatisfaction on the manner the investigation is carried out by the police. Further the Kerala High Court held that no opportunity is given to the petitioner who is the witness and it is an violation of principles of natural justice. Therefore, the Kerala High Court invoking the inherent jurisdiction envisaged under Section 482 of Cr.P.C. directed to expunge the remarks. The learned counsel relied on paragraph Nos.6 and 7 of the said judgment. Learned counsel referring to the evidence in the deposition of earlier investigating officer and the photographer, argued that this is a fit case wherein remarks or observation made by learned sessions judge be expunged and prayed to allow the petition.
9. Against this, learned HCGP argued that the learned sessions judge after considering the evidence of the petitioner and new investigation officer held that there is procedural lapse in conducting investigation by the 12 investigating officer and thereby directed for disciplinary action against the investigating officer and accordingly, acquitted the accused. Therefore, learned Sessions Judge felt that the investigating officer/petitioner herein has not thoroughly investigated the matter based on the fact that as per the photographs produced in the case, there was weapon in the stomach of the deceased, but the same was not seized at the time of spot panchanama. This has resulted in miscarriage of justice and resulted in acquittal of accused. Therefore, he supported the order of the learned Sessions Judge. Learned HCGP relied on judgment of Madhya Pradesh High Court in the case of K.P.Singh Kushwaha Vs. State of M.P. reported in 2005 (2) MPHT 423 and referred to paragraph Nos.13 and 14 and submits that the learned sessions judge has not directed to initiate any departmental enquiry but he has passed an order directing the disciplinary authority to take action in accordance with law. Therefore, such remark does not amount to directing initiation of disciplinary enquiry and it is the police authority who have initiated disciplinary enquiry. The Madhya Pradesh High Court has referred to the decision of Hon'ble Supreme Court in the 13 case of State of Uttar Pradesh Vs. Mohammed Naiem reported in AIR 1964 SC 704 wherein the procedure and the norms fixed by the Supreme Court for passing any such adverse remarks is stated. Learned HCGP also argued that such observations of the learned Sessions Judge or such remark cannot be construed as any adverse remarks. Therefore, learned HCGP argued that such observation and passing remarks against the petitioner in no way affects the petitioner. If at all he is aggrieved, he may place his defence in the form of reply to the charge memo or show cause before the Disciplinary authorities and it is also possible that the authority may accept his explanation and may drop proceedings. Therefore, Section 482 Cr.P.C., cannot be used for expunging out such remarks. Hence, prayed to dismiss the petition.
10. I have perused also observation made by the learned Sessions Judge in the impugned Judgment. The learned Sessions Judge at Para Nos.117, 118 and 119 of the Judgment has observed as under:-
"Para No.117 :- It is settled principles of law that the investigating officer who is dealing 14 with the investigation of a criminal case is obliged to act in accordance with the police manual. He is obliged to investigation. A default or breach of duty, intentionally or otherwise, can sometimes prove fatal to the case of the prosecution. An investigating officer is completely responsible and answerable for the manner and methodology adopted in completing his investigation. Where the default and omission is so flagrant that it speaks volumes of a deliberate act of such irresponsible attitude of investigation, cause prejudice to the case of the prosecution. It is possible that despite such default/omission the prosecution may still prove its case beyond reasonable doubt and Court can so return its finding. But at the same time, the default and omission would have a reasonable chance of defeating the case of the prosecution in some events and the guilty could go scot- free.
118. The criminal trial is meant for doing justice to all the accused. The Court should not merely discharge the function to ensure that no innocent man is punished, but also that a guilty man does not escape. Both are public duties of the judge. During the course of the trial, the presiding judge is expected to work objectively and in a correct perspective.
119. As discussed supra, absolutely there is no evidence at all to link any of the accused for the homicidal death of deceased Sharanabasappa. However, looking to the deliberate dereliction of duty, designedly defective investigation, intentional acts of omission and commission prejudicial to the case of the prosecution, in breach of 15 professional standards and investigative requirements of law, during the course of the investigation by the investigating agency
- PW.52 Hanamanthray Police Inspector, I feel that it shall be appropriate to direct the disciplinary authorities to take appropriate disciplinary or other action in accordance with law against the said investigation Officer."
Further, in the operative portion of the judgment, learned Sessions Judge has observed as under:-
ORDER "Acting under section 235(1) of Cr.P.C., accused Nos.1 to 3 & 5 are acquitted of the offences punishable under sections 143, 147, 148, 302 r/w sec.149 of Indian Penal Code.
Their bail bonds and surety bonds stand cancelled.
M.O.1 to 19 being worthless are ordered to be destroyed after expiry of the appeal period.
Send the copy of this Judgment with a direction to the Director General of Police, Karnataka for taking appropriate disciplinary or other action in accordance with law against the said Investigating Officer forthwith. "
11. I have perused the petition averments and the evidence of record. It is evident that the witnesses have not supported the prosecution case. Therefore, the learned Sessions Judge has acquitted the accused. It is also pertinent 16 to note that when the FIR is filed, this petitioner has included the accused Nos.5 to 15 as accused. But the subsequent Investigating Officer left out those accused from the charge sheet inspite of direction by his higher officer. It is pertinent to note that this petitioner himself wrote a letter to his higher officer, as one of the accused No.15-Anantharaj has filed a complaint against him. He got himself recused from the investigation. It is also evident from the spot panchanama and seizure panchanama which was conducted by this petitioner that the said knife, dragger or machete were not available at spot. Therefore, question of recovery of such knife from the stomach of the deceased does not arise. The second Investigation Officer has produced some photographs to place the blame on this petitioner. It is stated by the photographer that he has taken 8-9 photographs, but only 29 photographs were marked. There is no original or negative of the same produced. The certificate as required under section 65-B of Indian Evidence Act is also not filed.
12. As held by the Hon'ble Supreme Court in the case of Anvar P. V. v. P.K. Basheer and Others, (2014) 10 SCC 473, the secondary evidence under section 65-B(4) of Evidence Act, 17 1872 about such a photographs when not worthy, the trial court ought not to have passed such an unwarranted remarks.
13. Learned counsel for the petitioner has relied upon a decision of the Hon'ble Supreme Court in the case of Anvar P.V. v. P.K. Basheer and Others, (2014) 10 SCC 473 regarding the need of the certificate under section 65-B of the Indian Evidence Act. It is also pertinent to note that new Investigating Officer dropped accused Nos.5 to 15 inspite of report given by the Superintendent of Police. Name of accused Nos.5 to 15 were already in the FIR. Learned Sessions Judge after recording of the evidence of the witnesses added those accused Nos.5 to 15 as accused by exercising power under section 319 Cr.P.C. who were left out by the second IO. But the trial court for the reasons best known to it has passed remarks on the petitioner observing that he has not performed the investigation properly. The trial court has failed to appreciate the material on record as it is carried away by the defence evidence of accused No.15 Ananthraj. Instead of fixing responsibility on second Investigating Officer who has completed the investigation and who is responsible for filing the charge sheet, the trial court 18 went on passing the remarks against this petitioner without valid reasons. It is pertinent to note that as per the evidence of Doctor PW-50-Dr. Pandurang, the cause of death is due to shock and hemorrhage to the skull bone and injury to the brain. The learned Sessions Judge went on discussing the evidence of PW-52 i.e., the petitioner, right from the beginning of the judgment instead of discussing the evidence of complainant and other eyewitnesses. This approach of writing the judgment itself shows the trial court is totally misled by the defence evidence led by the accused.
14. It is settled principles of law that even if there is a lapse or lacunae in the investigation, that does not alter the decision if there is evidence regarding the commission of the offence. For example, if the complainant, eyewitnesses or other injured witnesses supports the case of the prosecution, simply because one of the weapons was not recovered or there is lapse in recovering one of the weapons used for the commission of the offence, that will not affect the evidenciary value of the injured or eyewitnesses if they are trustworthy and they can be believed. It is also evident that PW- 52(petitioner) was away from the place of offence and only 19 after receiving the information, he came to the spot after some time. It is also evident that PW-5 has given statement before previous Investigating Officer that he was the pillion rider of the vehicle. But the subsequent Investigating Officer has recorded that he has not at all present when the incident took place. The witnesses have turned hostile only after addition of accused Nos.5 to 15 subsequently by Court. That itself shows that all is not well with the subsequent Investigating Officer who is PW-51. Because, PW-1 was further cross-examined after addition of accused Nos.5 to 15 has subsequently deposed that she does not know the accused persons. Earlier she had stated that 11 persons and other four persons assaulted her son. Learned Sessions Judge has stated at para 75 that PW-17 to 22 and 32 have not supported the prosecution case. Learned Sessions Judge was unnecessarily carried away by defence evidence of Anantharaj against this PW-52 which is in no way connected with the result of case. Instead of pointing out lapse on the part of Investigating Officer-PW-51, the subsequent Investigating Officer, the learned Sessions Judge went on discussing the investigation done by PW-52 and passed 20 adverse remarks against petitioner which has nothing to do with the result of the case.
15. When the witnesses have not supported the prosecution case, putting blame on the investigating officer(petitioner) is not correct and legal. On the other hand, learned Sessions Judge has observed at para 100 of the judgment about dropping of accused Nos.5 to 15 by Investigating Officer PW-51 and court added them as accused after evidence of some prosecution witnesses under section 319 Cr.P.C. The Court instead of expressing doubt about investigation by PW-51 about his further investigation has unnecessarily passed remarks on this petitioner. The Hon'ble Supreme Court has reiterated that non-examination of Investigating Officer is not fatal to the prosecution case if there is other reliable evidence available. Without properly appreciating the case and the evidence and their evidentiary value, the learned Sessions Judge's remarks against PW-52 is unwarranted. Simply because accused Nos.5 to 15 led defence evidence and sought for action against PW-52, learned Sessions Judge ought not to have been carried away by such defence. Unfortunately, the Court has accepted the 21 version of defence evidence and passed such remarks. Infact, the role and investigation of PW-52 does not have bearing on the decision of the case.
16. Regarding passing of adverse remarks or making any adverse observations regarding the role of the Investigating Officer/witnesses, it is necessary to refer to the principles stated by Hon'ble Supreme Court and other High Courts.
17. The Hon'ble Supreme court in the case of Niranjan Patnaik v. Sashibhusan Kar and Another, (1986) 2 SCC 569, at para 24 and 25, held as under:-
24. "It is, therefore, settled law that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct.
We hold that the adverse remarks made against the appellant were neither justified nor called for.
25. Having regard to the limited controversy in the appeal to the High Court and the hearsay nature of evidence of the appellant it was not at all necessary for the Appellate Judge to have animadverted on the conduct of the appellant for the purpose of allowing the appeal of the first respondent. Even assuming that a serious evaluation of the evidence of the appellant was really called for in the appeal 22 the remarks of the learned Appellate Judge should be in conformity with the settled practice of courts to observe sobriety, moderation and reserve. We need only remind that the higher the forum and the greater the powers, the greater the need for restraint and the more mellowed the reproach should be."
18. The Hon'ble Supreme Court in the case of State of Madhya Pradesh v. Narmada Bachao Andolan and Another, (2011) 12 SCC 689 relying on the decision of State of U.P. v. Mohd. Naim, AIR 1964 SC 703 held at para 15 as under:-
15. Thus, the law on the issue emerges to the effect that the court may not be justified in making adverse remarks/passing strictures against a person unless it is necessary for the disposal of the case to animadvert to those aspects in regard to the remarks that have been made. The adverse remarks should not be made lightly as it may seriously affect the character, competence and integrity of an individual in purported desire to render justice to the other party.
19. Further, the Hon'ble Supreme Court in the case of In the Matter of: 'K' A Judicial Officer, (2001) 3 SCC 54 relying on the power of Superior Court to express its opinion and make even critical observations held that any passage in an order or judgment may be expunged if 1) the passage is wholly irrelevant and unjustifiable 2) retaining it would cause 23 serious harm to the persons to whom it refers; and 3) expunction would not affect the reasons for the judgment.
The Hon'ble Supreme Court was considering the case of remarks against a Judicial Officer and held that without affording an opportunity when such remarks have a potential on credentials of the appellant, it needs to be expunged.
20. The Delhi Court in the case of Anil Kumar v. CBI, 2017 SCC ONLINE 9792, considered said aspect wherein the petition under section 482 Cr.P.C. was filed for expunging the observation/remarks and quash the directions, the Delhi High Court considered as to 'whether passing of remarks were required while passing the impugned order and at paras 15, 16 and 17 relying on the decision of Hon'ble Supreme Court in the case of State of West Bengal v. Babu Chakraborty, AIR 2004 SC 4324 held as under:-
15. The whole question hinges around whether the aforesaid remarks were required while passing the impugned judgment?
The answer is:- NO.
The reasons are stated below:
a) As per the reply of respondent CBI, the present petitioner was not investigating the case i.e. RC-24
61(A)/1998/CBI at the time of filing of charge sheet. The charge sheet is alleged to be filed on 01.07.2005 under the supervision of Sh. Mukesh Sahay, DIG. The said reply of CBI is reproduced hereunder:
"3. That the Petitioner Sh. Anil Kumar, the then Supdt. Of Police, ACB, CBI, Delhi had supervised the investigation of this case from 03.12.1998 to 30.06.2000. Thereafter from 01.07.2000 till filing of chargesheet, ,Sh. Mukesh Sahay, DIG supervised the case.
4. That this case was investigated by eight Investigation Officers of CBI during the period from 1998 to 2005."
b) The impugned judgment does not specifically pin- point the instance/occasion wherein the petitioner failed to do his duties in relation to the investigation as charge sheet under Section 173 Cr.P.C. was filed by Mukesh Sahay, DIG and not by the present petitioner.
c) Moreover, if at all, there is any grievance of false implication of accused persons then the remedy to be taken by the accused persons should have been initiating malicious prosecution under Section 211 IPC against erring officials of CBI.
d) No person should be condemned unheard is the well known canon of natural justice. The remarks made in the judgment were extremely harmful to the career of the petitioner and he should have been given a reasonable opportunity of being heard for explaining or defending himself. The passing of such remarks is bad in law particularly, when there is option of malicious prosecution under Section 211 IPC qua the erring officials of CBI and the petitioner as well.
16. The Hon'ble Supreme Court in the case of State of West Bengal v. Babu Chakraborty, AIR 2004 SC 4324 had observed that "Where the public officials-in 25 the instant case Police Officials have discharged their official duties, strictures would not be passed against them merely because the officials have violated certain statutory provisions. In the instant case no mala fide was attributed to them, they were also not given opportunity to the officials before passing the strictures against them, strictures passed against the public officials were set aside."
17. The Hon'ble Supreme Court in the case of Raghubir Saran v. State of Bihar, AIR 1964 SC 1 has held that "Every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any order for the purpose of securing the ends of justice. This power extends to expunction or ordering expunction of irrelevant passages from a judgment or order of subordinate Court and would be exercised by it in appropriate cases for securing the ends of justice. Being an extraordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a Subordinate Court of its power such as by passing comment upon a matter not relevant to the controversy before it and which is unwarranted or is likely to harm or prejudice another."
21. The Hon'ble Supreme Court in the case of State of Assam v. Ranga Muhammad and others, AIR 1967 SC 903 held that the power to expunge is an extraordinary power and can be exercised only when a clear case is made out.
26
22. The Madhya Pradesh High Court in the case of Kiran S/o. Shankar Rao Lashkarkar V. State of M.P., 2007 SCC Online MP 47 relying on the decision of Hon'ble Supreme Court in the case of State of Karnataka v. Registrar General, High Court of Karnataka, AIR 2000 SC 2626 at para 15 while considering the remarks pertaining to the poor investigation passed by the Division Bench of this Court, the Apex Court held that 'Disparaging remarks which were passed against the petitioner were not necessary for decision of the case as its integral part. In the instant case, as the judgment of acquittal was recorded on some other ground, but not on the basis of only investigation by this PW-52, on the other hand, the witnesses turned hostile, and there were contradictions in the statement of the witnesses and other such things. Referring to judgment of the Hon'ble Supreme Court in State of U.P. V. Mohammad Naim, AIR 1964 SC 703, Niranjan Patnaik V. Sashibhusan Kar and Another, (1986) 2 SCC 569 and decision of the Hon'ble Supreme Court in the case of S.K. Viswambaran v. E. Koyakunju, AIR 1987 SC 1436, the Court has expunged the remarks holding that they are unnecessary for the decision of the case. Opportunity to explain or defend himself was also not provided before passing the remarks. Therefore, passing of remarks and issuing directions to police authority to hold departmental enquiry to punish a person is 27 contrary to the guidelines laid down by the Hon'ble Supreme Court in the case of State of Uttar Pradesh V. Mohammed Naim, AIR 1964 SC 703.
23. In the light of the principles stated in the above referred decisions and the discussion made, if the remarks/observations made by learned Sessions Judge at paras 117, 118 and 119 and also in the operative portion of the judgment of the learned Sessions Judge is considered, it is evident that such observations or remarks against the petitioner PW-52 was unwarranted and illegal. As already discussed above, the conduct or investigation by PW-52 has no bearing on the result of the case. When remarks in this case are not at all necessary for disposal of the case before the Sessions Court, when there is no evidence on record appearing on the conduct or justifying the remarks and when such remarks has no bearing on the decision of the case, learned Sessions Judge is not justified in passing such remarks. As already stated, petitioner has done only preliminary investigation. Subsequently, the investigation is handed over at his instance, as one of the accused was inimical towards him and a new Investigating Officer was appointed.
24. Therefore, in the light of the discussions made above, I am of the considered view that such observations made by the 28 learned Sessions Judge is wholly irrelevant and unjustifiable. If such remarks or observations is not expunged, it would cause serious harm to the petitioner as rightly contended by the petitioner. The expunge of such observation will not affect or change the decision of the judgment. The Court should be very careful and cautious while making or passing of such adverse remarks on the parties who comes before them as witnesses.
25. The Madhya Pradesh High Court in the case of Kiran S/o. Shankar Rao Lashkarkar V. State of M.P., 2007 (2) MPLJ 132 had occasion to consider passing of remarks by the trial court . The Madhya Pradesh High Court referred to Hon'ble Supreme Court judgment and at para 14 observed as under:-
14. In the case of A.M. Mathur v. Parmod Kumar Gupta, AIR 1990 SC 1737, it has been clearly held that:-
"Judges should not use strong and, carping language while criticizing the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognize that they are not infalliable and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so they may do considerable harm and mischief and result in injustice."29
26. In view of the above discussion, the courts dealing with criminal cases/sessions cases, before making any comments, criticism or passing of remarks or strictures against conduct of any person or witness who comes before the court in a case, has to keep in mind minimum basic requirements which can broadly be summarised as under:-
(i) whether the party whose conduct in question is before the court had an opportunity of explaining or defending himself,
(ii)whether there is evidence on record bearing on that conduct justifying the remarks;
(iii)whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.
(iv) such remarks must be judicial in nature and should not normally depart from sobriety, moderation and reserve.
(v) Though the Judge has unrestricted right to express his views in any matter before him, but there is corresponding duty in a Judge not to make unmerited and undeserving remarks or observation without any foundation, especially in the case of witnesses or the parties who are not before him, affecting their character and reputation.30
27. Therefore, in the light of the touchstone of the principles stated by the Hon'ble Supreme Court referred above, if the remarks/strictures or observations passed by the learned Sessions Judge in his judgment is tested, then it is evident that passing of such remarks or strictures against PW-52 petitioner by the learned Sessions Judge in the judgment directing the authorities to take appropriate action against the petitioner is not justifiable. Such remarks, comments or observations in the judgment needs to be expunged.
Accordingly, I pass the following:-
ORDER The petition is allowed.
The remarks/strictures passed by learned III Additional Sessions Judge, Kalaburagi, in S.C.No.146/2010 at paras 112 to 119 and also in operative portion of the order against the petitioner-PW-52/Investigating Officer are hereby expunged from the judgment.
Registrar Judicial is directed to place this order before Hon'ble The Chief Justice for perusal and obtain orders to circulate the same to all the Presiding Officers working in the Trial Courts.
Sd/-
JUDGE HJ/KJJ/Sdu/mn