Rajneesh Kaushik vs State Of Chhattisgarh

Heard.

The petitioner was involved in the investigation for the offence under Section 41(1-4) of Cr.PC read with Section 379 of the IPC registered at Police Station Kelhari District Korea (CG) against respondents 2 to 4. After completion of the investigation, the charge sheet was filed by another Police Officer namely Devendra Kumar under Section 403 of IPC on 23.12.2017 and after completion of the trial in Criminal Case No.579/2017, the Judicial Magistrate First Class, Manendragarh vide judgment dated 25.3.2019 acquitted respondents 2 to 4 from the charges under Section 403 of the IPC. However, learned Judicial Magistrate First Class, while acquitting the accused persons, vide para 14 of the impugned judgment, not only made certain adverse remarks against the petitioner but also ordered vide para 17 for payment of compensation to the tune of Rs.50,000/-to each of the accused persons i.e. respondents 2 to 4. This petition has been filed for quashing of aforesaid observation and direction.

Brief facts of the case are that the petitioner was appointed as Assistant Sub Inspector (Probationer) and posted in the Police Station Kelhari District Korea from 16.2.2016 to 21.5.2016. On 9.5.2016, during patrolling duty, the petitioner received a secret information, on which, he intercepted respondents 2 to 4 on their way, who were on a motorcycle and enquired about the ownership of the motorcycle bearing registration No.MP-18-E-8724. During search of the said motorcycle, a gun was also recovered. However, respondents 2 to 4 failed to produce any document to show their valid possession of the said motorcycle and gun, therefore, an offence under Section 41 (1-4) of Cr.PC read with Section 379 of the IPC vide Istgasa No.1/2016 was registered at Police Station Kelhari against them. After completion of the arrest formalities, the respondents were produced before the Court on 10.5.2016 and a remand form was submitted; the learned Magistrate accepted the application and sent respondents 2 to 4 to jail. The remand was granted till 24.5.2016. Thereafter, the petitioner got transferred and was relieved from the Police Station Kelhari on 21.5.2016 and he gave his joining at District Reserve Police Line, Baikunthpur, District Korea. After the transfer of the petitioner, the remaining part of the investigation was completed by another Police Officer. On 23.12.2017, after completing of the investigation, the then SHO filed the charge sheet under Section 403 of IPC. The learned Magistrate framed charges against respondents 2 to 4 on 26.6.2018. During the bail proceedings, respondents 2 to 4 produced the copy of the sale-deed before the concerned Court. After completion of the trial, vide impugned judgment dated 25.3.2019, the Judicial Magistrate First Class, Manendragarh acquitted respondents 2 to 4 from the charges under Section 403 of the IPC but made certain adverse remarks against the petitioner and also ordered for payment of compensation to the tune of Rs.50,000/- each to respondents 1 to 4. Hence, this petition for quashing of the said observation and direction.

Learned counsel for the petitioner would submit that since during the search, respondents 2 to 4 failed to demonstrate the valid possession of the motorcycle and pistol, the petitioner has rightly made a case under Section 41 (1-4) of Cr.PC read with Section 379 of the IPC and after adopting due process, they have been produced before the concerned Judicial Magistrate First Class. Thereafter, the learned Magistrate accepted the remand form and after considering all the material available on record, granted remand up to 24.3.2016. He further submits that the motorcycle is still in the name of one Manoj Mehtele. The petitioner has been transferred and relieved on 21.5.2016 and after his relieving from the said Police Station, the remaining part of the investigation was done by another Police Officer and he had also not discharged respondents 2 to 4. After completion of the investigation, the charge sheet has been filed under Section 403 of IPC. The concerned learned Magistrate has taken cognizance of the said offence and framed charges under Section 403 of IPC on 26.6.2018. Respondents 2 to 4 have not challenged the said order of framing of charges. He would further submit that though the Prosecutor was present on 26.6.2018, but in absence of any application filed by the prosecution or the defence, the learned Magistrate suo motu ordered for addition of certain other witnesses, who were the close relatives of respondents 2 to 4, on the basis of the alleged sale transactions, at the initial stage of the trial after framing of the charges. He submits that though a gun was seized and the Armourer has also reported that a pistol like weapon was found in a fit condition, but no charges were framed under the provisions of the Arms Act. While passing the impugned judgment, the learned Magistrate failed to appreciate that respondents 2 to 4 had not submitted any document in reply to the notice under Section 91 of Cr.P.C. He submits that the petitioner has not done any irregularity in the investigation. The petitioner has performed his duty diligently with full dedication and honesty. He places reliance on the matter of Purnima Lama Vs. State of Chhattisgarh through Secretary and others, 2023 SCC OnLine Chh 134 and submits that the direction issued by the Court below concerning the adverse entry in the service record deserves to be quashed and further direction for payment of compensation is also not sustainable.

On the other hand, learned counsel for respondents 2 to 4, would submit that an explanation was sought from the petitioner in this regard, but he has failed to produce any explanation to the satisfaction of the concerned Court. He further submits a false case has been cooked up against respondents 2 to 4, therefore, the observation and direction made by the concerned Court is just and proper, which does not call for any interference.

In reply to the aforesaid submission, learned counsel for the petitioner would submit that an explanation was submitted by the petitioner on 22.1.2018, which has not at all been considered in the impugned judgment. In the said explanation, the petitioner has categorically stated that at the time of filing of the charge sheet i.e. 23.12.2017, he was not the SHO of the concerned Police Station as he was relieved on 21.5.2016.

Heard learned counsel for the parties and also perused the documents annexed along with the petition carefully.

In Purnima Lama (supra), it has been categorically observed that adverse remarks or strictures are only to be passed when it is necessary or justifiable for the just decision of the said case. Some material observation made vide para 10 to 20 reads thus :

“10. Likewise, in the matter of Niranjan Patnaik v. Sashibhusan Kar (1986) 2 SCC 569, their Lordships of the Supreme Court have held 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 and followed the decision of the Supreme Court in the matter of Mohammad Naim (supra) and observed 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.”

Similar is the proposition laid down in the matter of R. K. Lakshmanan v. A. K. Srinivasan (1974) 2 SCC 566, in which the Supreme Court has followed the tests laid down for expunction of adverse remarks in Mohammad Naim (supra).

In the matter of A.M. Mathur v. Pramod Kumar Gupta (1990) 2 SCC 533, their Lordships of the Supreme Court have emphasized the need for judicial restraint and held that judicial restraint and discipline are necessary to the orderly administration of justice and observed as under:-

“13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other coordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.”

Their Lordships have further concluded that intemperate comments should not be made by the Judges and observed as under:-

“14. The Judge’s Bench is a seat of power. Not only do judges have power to make binding decision, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter or scathing criticism of counsel, parties or witnesses. We concede that the court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.”

In the matter of Monish Dixit v. State of Rajasthan AIR 2001 SC 93, it has been held by the Supreme Court that castigating remarks against any person should not be made and the Court is required to give opportunity of being heard in the matter in respect of the proposed remarks or strictures and the same is basic requirement, otherwise offending remarks would be in violation of the principles of natural justice and held as under:-

“43. 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).”

In the matter of Prakash Singh Teji v. Northern India Goods Transport Co. Pvt. Ltd. 2009 AIR SCW 3078 it has been held by the Supreme Court that adverse remarks should not be made unless it is necessary for decision of case and opportunity to give his explanation should be afforded to the concerned officer and observed as under:-

“13. In the light of the above principles and in view of the explanation as stated by the appellant for commenting the conduct of the plaintiff, we are satisfied that those observations and directions are not warranted. It is 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. The direction of the High Court placing copy of their order on the personal/service record of the appellant and a further direction for placing copy of the order before the Inspecting Judge of the officer for perusal that too without giving him an opportunity would, undoubtedly, affect his career. Based on the above direction, there is every possibility of taking adverse decision about the performance of the appellant. We hold that the adverse remarks made against the appellant was neither justified nor called for.”

The principle of law laid down in above-stated judgments have been followed with approval by Supreme Court recently in the matters of Amar Pal Singh v. State of Uttar Pradesh (2012) 6 SCC 491, State of Gujarat v. Justice R.A.Mehta (Retired) (2013) 3 SCC 1, Om Prakash Chautala v. Kanwar Bhan (2014) 5 SCC 417 and State of Uttar Pradesh v. Anil Kumar Sharma (2015) 6 SCC 716.

The Supreme Court in the matter of Pankaj Chaudhary (supra) their Lordships has clearly held that in case of defective / illegal investigation disparaging remarks/ direction to initiate prosecution should not be passed against the police officials without affording them opportunity of hearing. It was held as under : -

“42.While passing disparaging remarks against the police officials and directing prosecution against them, in our considered view, the High Court has failed to bear in mind the well settled principles of law that should govern the courts before making disparaging remarks. Any disparaging remarks and direction to initiate departmental action/ prosecution against the persons whose conduct comes into consideration before the court would have serious impact in their official career.

Since the High Court has passed strictures against the police officials who were involved in the investigation in FIR No.559 of 1997 without affording an opportunity of hearing to them, the disparaging remarks are liable to be set aside.”

A conspectus of the judgment mentioned hereinabove would show that though 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 specially in case of witnesses or the parties who are not before him affecting their character and reputation unless it is absolutely necessary for just and proper decision of the case and that too after affording an opportunity of explaining or defending that witness or the party as the case may be, judicial decisions must be judicial in nature and it must show judicial respect to the litigant/party, witnesses who come before the court for their cause. It is also well settled that this Court in exercise of inherent or extraordinary jurisdiction can expunge those remarks made by subordinate court following the three tests laid down in Mohammad Naim (supra), if it is really necessary to do so or prevent abuse of the process of the court or to secure the ends of the justice in exceptional cases, where those remarks would cause irreparable injury to the witness or party not before the court holding that retention of those undeserving remarks will cause harm to the person referred and the expunction will not affect the judgment rendered by the court.

Reverting to the facts of this case in the light of the aforesaid principles laid down by the Supreme Court, the adverse remarks passed by learned trial Court is absolutely contrary to the well settled principles of law. The learned trial Court ought to have given a reasonable opportunity of hearing to the petitioner herein before passing any adverse comments for discrepancies in the investigation.

Particularly, it is not the case of respondents/State that petitioners were afforded an opportunity to explain those circumstances and similarly such adverse remarks were neither necessary nor justifiable for the just decision of the case. Thus the offending remarks made by the trial Court in its judgment are in breach of the judgments rendered by their Lordships of the Supreme Court in Mohammad Naim and Pankaj Chaudhary (supra), and as such, retention of those remarks would cause legal harm and demonstrating consequence in service career of the petitioner herein and accordingly the adverse remarks being unreasonable deserve to be expunged in the ends of justice.”

Revering back to the facts of the present case, in view of the aforesaid principles laid down by the Supreme Court, it is quite vivid that during investigation, respondents 2 to 4 failed to produce any valid document with regard to possession of the motorcycle and gun which were recovered from them. Further, the petitioner got transferred and was relieved from the concerned Police Station before filing of the charge sheet only and the remaining part of the investigation was completed by another Police Officer. The said explanation was also given by the petitioner before the concerned Magistrate but he did not take it into consideration. Further, while remanding the accused persons/respondents 2 to 4, the learned Magistrate had found sufficient material, however, the accused persons did not challenge the remand order as also the charges framed against them before any Higher Court. The said fact was also not taken into consideration by the learned Magistrate while passing the impugned judgment with certain observations/directions. Since there is a presumption under Section 114(e) of the Evidence Act that the judicial and official act have been regularly performed, there is no malafide on the part of the petitioner attributed by respondents 2 to 4.

For the foregoing, this Court is of the considered view that the adverse remarks passed by the concerned Court vide para 14 and the direction given for payment of compensation vide para 17 are not sustainable and deserve to be quashed

Accordingly, the said observation and direction made in the impugned order vide para 14 and para 17 are quashed. Further, it is made clear that the observation made in this order is only to the extent of redressal of the grievance of the petitioner and it shall not affect the merits of the acquittal recorded against the accused persons.

The petition is allowed to the extent indicated above.