Rajkumar Dewangan vs State Of Chhattisgarh And Ors

@JUDGMENT-JUDGMENT

By this petition under Article 226 of the Constitution of India, the petitioner has prayed for expunging adverse remarks and strictures made against

him by the Additional Sessions Judge, Sakti in its judgment dated 12-05-2003 passed in Sessions Trial No.166/1999.

On 02-02-1999, crime in Crime No.21/1999 was registered in Police Station, Baradwar on the allegation of commission of offence of dacoity,

punishable under Section 395, 397 of IPC that cash of Rs.13,56,493/-, which was being carried from bank to destination towards distribution of salary

to Teachers, was looted. The driver of the vehicle was injured by gun shot injury. Lakhan Lal, Chitrangan, Tosh Kumar and Mohit Ram were accused

of commission of offence. Mohit Ram was involved on the allegation that he received the looted cash knowing fully well that it was looted. In the

aforesaid trial, accused Lakhan Maina was convicted for commission of offence under Section 394 and 397 of IPC and sentenced 10 years R.I. for

each of the offences. Other accused Chitranjan, Tosh Kumar and Mohit Ram were acquitted from all the charges by giving them benefit of doubt.

While disposing off the aforesaid criminal case, the learned Additional Sessions Judge made various observations commenting upon the conduct of the

petitioner, who at the relevant time, was posted and working as Superintendent of Police, Janjgir-Champa. The learned trial Court, taking into

consideration the statement of the prosecution witnesses that false evidence was created in respect of seizure of alleged looted cash, which was

already recovered from the possession of other persons and further statement of the prosecution witnesses that instead of allowing appropriate seizure

proceedings to be drawn from those persons from whom the cash amount was actually recovered, it was directed by the petitioner that the looted and

recovered cash be kept in the malkhana and further proceedings to be drawn after return of Investigating Officer, Narendra Mishra from Bihar and

thus, investigation was tainted due to such illegal acts. Various observations were recorded regarding conduct and forwarded a copy of the judgment

to the Director General of Police and Secretary (Home) of the State for drawing appropriate proceedings for creating false evidence.

Learned counsel for the petitioner argued that the observations, which have been made by the learned trial Court, while disposing off the criminal

case, amount to passing serious strictures against the petitioner, who at that relevant time, was posted as Superintendent of Police, Janjgir-Champa,

without affording any opportunity of hearing to the petitioner. Learned counsel for the petitioner contended that while passing strictures against the

petitioner, upon scrutiny of the evidence on record, the learned trial Court ignored that the petitioner was not a party in the said proceedings nor he

appeared as a prosecution witness nor any notice was given to him to explain his conduct before passing strictures against him. Next submission of

learned counsel for the petitioner is that the learned trial Court relied upon the evidence of some of the prosecution witnesses, whose evidences were

not reliable as such and also suffered from material discrepancies, in so far as they stated regarding the role played by the petitioner in the matter of

drawing appropriate proceedings towards seizure of allegedly looted cash. He would argue that the petitioner was not the Investigating Officer and the

investigation was being carried out by the Sub Inspector-Narendra Mishra. The petitioner did not in any manner interfere with the investigation and he

did not even direct any police officer, much less, Investigating Officer or any other witnesses as to how looted and recovered cash is to be dealt with.

He would argue that only on the basis of unreliable and shaky statement of the seizure witnesses, without any other documentary evidence of

involvement of the petitioner in the investigation, the learned trial Court passed serious strictures that the petitioner was involved in creating false

evidence of seizure of looted cash from persons other than those from whose possession, cash was actually recovered. It is further contended that

irrespective of merits of the criminal case as to whether the evidence of recovery of cash is reliable or not, he would highlight that the role of the

petitioner was not the subject matter of decision of the criminal case, because according to the prosecution, the accused persons had looted cash from

Lorry, which was carrying cash from the bank. There is neither any allegation that the petitioner was involved in loot nor the petitioner was involved in

the case as Investigating Officer nor there is any material to show that the petitioner was directly monitoring or supervising the investigation or that he

himself kept cash, which was brought to the police station and thereafter, before him or on his instructions, proceedings were drawn in respect of

looted cash. Therefore, the learned trial Court had no occasion to discuss the conduct of the petitioner as it was not at all necessary nor integrally

connected with the case. Therefore, it is argued, the stricture passed against the petitioner is illegal and unsustainable in law. In support of his

argument, learned counsel for the petitioner relied upon the decisions in the case of State of U.P. vs. Mohammad Naim, AIR 1964 SC 703 ,Manish

Dixit and others vs. State of Rajasthan, AIR 2001 SC 93 ,Prakash Singh Teji vs. Northern India Goods Transport Co. Pvt. Ltd. and Another, (2009)

12 SCC 577 and Om Prakash Chautala vs. Kanwar Bhan and others, (2014)5 SCC 417.

Per contra, learned State counsel submitted that in the present case, the learned trial Court, while scrutinizing the evidence led by the prosecution,

particularly the evidence with regard to seizure of looted cash, considered the evidence of the prosecution witnesses and in view of what was stated

by the prosecution witnesses, the learned trial Court recorded a finding with regard to the guilt of the accused in trial. Except, Lakhan Maina, all other

accused were acquitted by giving them benefit of doubt. The learned trial Court reached to the conclusion that the Investigating Officer-Narendra

Mishra prepared false seizure documents showing seizure of Rs.1,95,000/- from accused Lakhan Maina, whereas witnesses have stated that this cash

amount was already recovered from the mother of the accused-Lakhan on 03-02-1999 and thereafter, it was kept with Narendra Mishra and later on,

false seizure from accused-Lakhan Maina was prepared on 07-02-1999. The learned trial Court also reached to the conclusion that the memorandum

of seizure of cash of Rs.5,60,000/- was also falsely prepared, which was already recovered on the memorandum of wife of Mohit Ram, from the

house of Manharan Chandra. Similarly, other cash amount, which was found in possession of different persons, were not seized by drawing

appropriate proceedings from those persons, but were falsely stated to be recovered from Lakhan on subsequent dates. Learned State counsel further

highlighted that the prosecution witnesses stated during trial that the cash amount, which were collected from different places, were kept without

drawing seizure proceedings i.e. preparation of seizure memo and the petitioner directed entire cash amount to be kept with Sub Inspector-Narendra

Mishra. Even though, it was brought to the notice of the petitioner, the petitioner did not allow proceedings to be drawn during investigation and

directed entire cash to be handed over to Narendra Mishra. Therefore, observations made by the learned trial Court with regard to conduct of the

petitioner, a senior Police Officer and role played by him in creating false evidence is not only integral part of the case, but without such finding, the

criminal case could not be decided. The evidence of the prosecution witnesses fully justifies recording of such observations. It is lastly submitted that

the learned trial Court itself has clearly stated in its order that it is not recording any specific finding on the role of the petitioner as he not been put to

the notice, all the observations made in the order, are only for the purposes of prima facie consideration as to why cases is being referred for proper

enquiry on the conduct of the petitioner by higher Police Officer. In view of the such observations made in para 81 of the judgment, remarks cannot

be assailed on the ground that the principles of natural justice have been violated. In support of this argument, learned State counsel placed reliance

upon the decision of the Supreme Court in the case of State of W.B. vs. Mir Mohammad Omar and others, (2000) 8 SCC 382.

Having heard learned counsel for the parties, record of the case has been perused. Along with the petition, judgment of the trial Court as also the

statement of the witnesses have also been placed for perusal of the Court.

A perusal of the judgment dated 12-05-2003 passed by the learned trial Court in Sessions Trial No.166/1999 reveals that the accused persons in that

case were tried for commission of offence under Section 395 & 397 of IPC and other offences on the allegation that huge amount of cash, which was

being transported from bank to other destination for distribution of salary to the teachers, was looted during transit by the accused and there was also

an allegation that the driver was injured by gun shot injury. As in cases of loot and dacoity, the evidence of identification and recovery of looted article

are most important amongst other incriminating evidence, the learned trial Court scrutinized the evidence of prosecution witnesses with regard to

alleged recovery of looted cash. In paras 27 to 38, the learned trial Court has recorded a finding based on the evidence of the prosecution witnesses,

Shiv Shankar Baghel, PW-33, who prepared memorandum documents, in which, he has admitted that Narendra Mishra prepared seizure memo on 07-

02-1999 showing recovery of Rs.1,95,000/- from the accused Lakhan Maina, whereas according to this witness, this cash amount was already

recovered by Narendra Mishra in presence of other witness, on 03-02-1999, from the mother of the accused-Lakhan Maina and kept in the police

station. It was further recorded that the aforesaid statement of Shiv Shankar Baghel was corroborated from the statement of another prosecution

witnesses Swaynwar Singh, PW-7, who also stated regarding recovery of part of looted cash from the possession of mother of Lakhan Maina on 03-

02-1999. The learned trial Court further took into consideration evidence of another prosecution witness A. Sai Manohar, PW-65, who has admitted

that though, cash was seized by Narendra Mishra, he had not prepared any memorandum statement and seizure of cash was later on shown to be

seized on 07-02-1999, whereas, Rs.1,95,000/- was already recovered from the possession of mother of Laxman Maina. Further, this witness also

stated that on 07-02-1999, Rs.20,000/- was seized from the possession of Badha Ram Maina and all the documents of memorandum and seizure were

prepared subsequently. This witness also stated that even before 07-02-1999, Rs.5,60,000/- were recovered from one of the accused Manharan

Chandra on the disclosure made by wife of one of the accused Mohit Ram, but again false memorandum was prepared, which did not disclose the

aforesaid true facts. The learned trial Court on the basis of evidence of false seizure held prosecution story with regard to recovery of Rs5,60,000/-

from the possession of Mohit Ram, seizure of Rs.30,000/- from Tiharin Bai and seizure of Rs.20,000/- from Badha Ram highly doubtful. The evidence

of Swyanwar Singh, PW-7, Nand Kumar Chandra, PW-26, Sadhna Singh, PW-15 were also scrutinized and observed that the version of the

prosecution that recovery of cash was made on 07-02-1999 was doubtful because when the cash amount, which was recovered from the different

persons, was brought before the Superintendent of Police, even before preparation of memorandum statement, the Superintendent of Police did not

direct appropriate seizure proceedings to be drawn showing recovery of cash from the persons, from whose possession, cash amount was found. He

directed that no proceedings of seizure be drawn and the cash amount be handed over to the Investigating officer, Narendra Mishra, upon his return.

On such findings, the learned trial Court entertained doubt with regard to recording of memorandum statement and recovery of cash of Rs.5,60,000/-

from one of the accused-Mohit Ram. Thus, Mohit Ram was given benefit of doubt because of discrepancies, therefore, the learned trial Court had to

acquit Mohit Ram and Badha Ram.

The conduct of the petitioner was a matter of discussion by the learned trial Court in the course of scrutiny of evidence of witnesses of

memorandum and seizure. In fact, criminal case was registered against the Investigating Officer, Narendra Mishra, which is clear from the judgment

of the learned trial Court itself.

In view of the aforesaid evidence, which had come on record, the learned trial Court had to make certain observations with regard to the conduct of

the petitioner. In para 81 of the judgment, the learned trial Court recorded that as the petitioner, the then Superintendent of Police, has not been

afforded any opportunity of hearing, therefore, it would not be proper to pass any stricture against him, but at the same time, looking to his overall

conduct and the manner, in which, he himself directed investigation and did not allow seizure proceedings to be drawn from those persons, from

whom, cash was actually seized and thereby, creation of false evidence by directing cash amount to be handed over to Mr. Narendra Mishra, an

enquiry was necessary. Further, in para 83, the learned trial Court further observed that without making any unnecessary comment, it considers it

proper to direct the Home Secretary to cause enquiry held against the petitioner by a Gazetted Officer. In para 84 & 85 of the judgment, the learned

trial Court directed copy of the order be forwarded to the Home Secretary and Director General of Police, Government of Chhattisgarh to hold

enquiry and if upon such enquiry, the petitioner is found guilty in any criminal act, take necessary action in the matter in accordance with the rules.

Though, the learned trial Court has recorded in para 81 & 83 of the judgment that it is not going to record any specific stricture against the officer,

because he has not been given any opportunity of hearing and it would be proper that the enquiry is to be made by the government, this Court finds

that various observations made in the judgment including those, which have been made in paras 80 to 82, constitute stricture against the petitioner. This

is clear from following observations made in various paras of the judgment dated 12-05-2003:-

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The opening remarks made in para 81 of the judgment were as below:-

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“In para 82 also, following serious comments/observations were made:-

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Again, in para 83, it was written, as below:-

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10 From cumulative reading of the relevant excerpts contained in different paras of the judgment of the learned trial Court, it is clear that the learned

trial Court, though made observation that it is not passing any stricture or recording any adverse remarks, the observations, as have actually been

made, referred to hereinabove, did constitute serious strictures against the petitioner. In para 81 of the judgment, it has also been observed that the

conduct of the petitioner reflects criminal mentality. Therefore, it cannot be said that the learned trial Court only made passing observations and did not

record any strictures and adverse remarks against the petitioner.

11 At this juncture, it is relevant to examine the legal position with regard to authority of the Court to pass strictures and also the permissible grounds,

on which, strictures could be challenged and the considerations, which should weigh with the Court to decide whether strictures should be expunged or

allowed to remain.

In one of its earliest judgment, the Supreme Court in the case of Mohammad Naim (supra), examined legal position and held that though, the

jurisdiction of the Court to expunge remarks is of exceptional nature and it is to be exercised in most exceptional case only, it is open for the High

Court to expunge remarks from the judgment in order to secure the ends of justice and prevent abuse of the process of the court. In the aforesaid

judgment, the Supreme Court held thus:-

----- xxx ----

“The position as to case-law now seems to be that except for a somewhat restricted view taken by the Bombay High Court, the other High Courts

have taken the view that though the jurisdiction is of an exceptional nature and is to be exercised in most exceptional cases only, it is undoubtedly open

to the High Court to expunge remarks from a judgment in order to secure the ends of justice and prevent abuse of the process of the court [see

Emperor v. Ch. Mohd. Hassan AIR 1943 Lah 298 ; State v. Chhotay Lal, 1955 ALL LJ 240L; alit Kumar v. S. S. Bose AIR 1957 ALL 398; S.Lal

Singh v. State AIR 1959 Punj 211; Ram Sagar Singh v. Chandrika Singh (AIR 1961 Pat 364;) and In re Ramaswami AIR 1958 Mad 305). The view

taken in the Bombay High Court is that the High Court has no jurisdiction to expunge passages from the judgment of an inferior court which has not

been brought before it in regular appeal or revision; but an application under s. 561-A CrP C is maintainable and in a proper case the High Court has

inherent jurisdiction, even though no appeal or revision is preferred to it, to correct judicially the observations made by pointing out that they were not

justified, or were without foundation, or were wholly

wrong or improper I see HYPERLINK ""https://indiankanoon.org/doc/1067971/""State v. Nilkanth Shripad Bhave ILR (1954) Bom 148; AIR 1954 Bom

65).â€​

----- xxx -----

In later part of the said judgment, the Supreme Court, while emphasizing upon cardinal principle of independence of Judges and Magistrates in

administration of justice also laid down relevant considerations while dealing with such case of strictures/adverse remarks made by the Judges and

Magistrates in judicial disposition. It was authoritatively pronounced thus:-

---- xxx ----

“If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of judges and

Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body,

even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations

of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been

judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before

courts of law in cases to be decided by them, 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 ; 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 recognised that judicial

pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.â€​

On facts, in the aforesaid case, it was found that general observations against the entire police force of the State were made which were

considered to be unwarranted, lacking in material and not necessary for decision of the case.

Three relevant considerations, while dealing with the case of strictures/adverse remarks made by the Judges, Magistrates in judicial disposition

against the subordinates or any other persons laid down in the case of Mohammad Naim (supra) has held the field and made basis to determine the

issue as to whether adverse remarks/strictures are required to be expunged, in Jage Ram vs. Hans Raj Midha, (1972)1 SCC 18,1 R. K. Lakshmanan

vs. A. K. Srinivasan, (1975) 2 SCC 466, Niranjan Patnaik vs. Sashibhusan Kar, (1986) 2 SCC 569, Dilip Kumar Deka vs. State of Assam, 1996 (6)

SCC 234, State of W.B. vs. Mir Mohammad Omar and others, AIR 2000 SC 298,8 Manish Dixit and others vs. State of Rajasthan, AIR 2001 SC

1993, In the matter of: 'K' A Judicial Officer, 2001 (3) SCC 54,S tate of W.B. vs. Babu Chakraborthy, (2004) 12 SCC 201, Prakash Singh Teji vs.

Northern India Goods Transport Co. Pvt. Ltd. and Another, (2009) 12 SCC 57 7and Om Prakash Chautala vs. Kanwar Bhan and others, 2014(5)SCC

In all these decisions, three tests laid down in the case of Mohd. Naim (supra) were applied.

I have taken into consideration, hereinabove, the material evidence led by the prosecution and the statement of prosecution witnesses regarding

conduct of the present petitioner. Therefore, it is amply clear from the nature of accusation in the criminal case and the evidence led by the

prosecution to prove guilt of the accused that the learned trial Court, while scrutinizing the evidence with regard to proof of seizure of looted cash, was

necessarily required to assess evidence as to whether the prosecution had succeeded in proving beyond reasonable doubt that looted cash was

recovered on the basis of disclosure statement given by the accused. Statement of the witnesses that the part of looted cash was already recovered

from different persons even prior to recording disclosure statements of some of the accused and that when such recovered cash was taken before the

petitioner, the petitioner asked the cash to be handed over to Narendra Mishra, without allowing due proceedings to be recorded that it was actually

recovered from the persons other than the accused, can also not be said to be uncalled for. It was indeed necessary for the decision of the case as

integral part thereof to animadvert on that conduct.

(17) But, despite the strictures made by the learned trial Court passing the two tests, out of three tests laid down in plethora of decisions as noted

above, it has failed to satisfy requirement of affording of opportunity of hearing to the petitioner-a police officer, before making such serious

observations/strictures against him. I have highlighted hereinabove, with specific reference to the paras of the judgment of the learned trial Court that

even though, the learned trial Court began with caveat that it is not passing any strictures as Officer has not been afforded opportunity of hearing,

before and after that, in the judgment, there are actually serious strictures against the petitioner. Invariably, in those cases, where it has been found

that the Judicial Officer or Police Officer or Investigating Authority or any other authority or any other person was not afforded opportunity of hearing

before passing strictures, such strictures have been held to be unsustainable in law only on that count, irrespective of whether the strictures passes

other two tests.

(18) In the case of Dilip Kumar Deka (supra), after referring to authorities in the case of State of U.P. vs. Mohd. Naim (supra), Jage Ram (supra), R.

K. Lakshmanan (supra), Niranjan Patnaik (supra), the Supreme Court reiterated that affording of opportunity of hearing was necessary in following

words:-

“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. Condemnation of the appellants without giving them an opportunity of being heard was a complete negation of the

fundamental principle of natural justice.â€​

(19) In a subsequent decision in the case of Manish Dixit (supra) also, non affording opportunity of hearing before passing stricture was held to render

the stricture unsustainable in law and it was observed thus:-

“Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the court against any person,

particularly when such remarks could ensue serious consequences on the future career of the person concerned he should have been given an

opportunity of being heard in the matter in respect of the proposed remarks or strictures. Such an opportunity is the basic requirement, for, otherwise

the offending remarks would be in violation of the principles of natural justice. In this case such an opportunity was not given to PW-30 (Devendra

Kumar Sharma). [(State of U.P. vs. Mohd. Naim {1964 (2) SCR 363} (AIR 1964 SC 703: 1964 (1) Cr.L.J.549 C),h. Jage Ram vs. Hans Raj Midha

{1972 (1) SCC 181}, AIR 1972 SC 1140: 1972 CriL.J. 768 )R, .K. Lakshmanan vs. A.K. Srinivasan {1975(2) SCC 466}, AIR 1975 SC 1741: 1975

Cri.L.J.1545), Niranjan Patnaik vs. Sashibhusan Kar {1986 (2) SCC 569}, AIR 1986 SC 819, 1986 Cri.L.J. 911 )S:tate of Karnataka vs. Registrar

General {2000 (5) Scale 504}  2000 AIR SCW 2794 : AIR 2000 SC 2626).â€​

Studied scrutiny of the material on record and application of principles of law propounded in the decisions referred to hereinabove, leads to

inevitable conclusion that the observations made by the learned trial Court in respect of the petitioner, constitute serious remarks on his conduct and

such strictures could not be made without affording him any opportunity of hearing, even if I have to accept that there is evidence on record to justify

such conclusion bearing on that conduct and that it was necessary for the decision of the case as an integral part thereof, to animadvert on that

conduct.

All the adverse structures and remarks made against the petitioner are therefore, expunged. I have make it clear that direction of the learned trial

Court to the competent authorities to enquire into the matter is not being interfered with, because such direction is within the authority of the Court.

In the result, the petition is allowed.