R.N.Singh Sengar vs State Of Chhattisgarh

1) By way of this petition, the petitioner has prayed for the following relief(s):-

“10.1 That, this Hon'ble Court may kindly be pleased to call the records of the case.

10.2 That, this Hon'ble Court may kindly be pleased to issue an appropriate writ and the impugned adverse remarks made by the learned Special Judge (Prevention of Corruption Act, 1988), Bilaspur in Special Criminal Case No. 02/2017 may kindly be expunged.

10.3 To kindly grant any other relief which may be deem fit in the given facts and circumstances of the instant case.”

2) Learned counsel for the petitioner submits that the petitioner was the investigating officer in Criminal Case No.47/2014 registered at State Economic Offence Wing/Anti-Corruption Bureau, Raipur. After completion of investigation charge-sheet was filed. The Special Judge/First Additional Sessions Judge, Bilaspur, C.G., tried the case as Criminal Case No.02/2017 and passed judgment on 30.05.2019. In the paragraph No.110, the learned trial Court has observed that according to the scrutiny of the evidence, it has been found that one vehicle, the subject matter of the case, which was registered in the name of one Nishant Jain was deliberately shown as the property of accused Kundan Banjare, which is an act of conspiracy. The direction has been issued to the Police Authorities to make inquiry and proceed in accordance with law against the investigating Officer. Observations made and the direction issued are directly against the petitioner. On the basis of findings against the petitioner in the said judgment, some action may be contemplated by the State. He would rely upon the order of Division Bench of this Court passed in the matter of “Ms. Purnima Lama v. State of Chhattisgarh and others” in WPCR No. 425 of 2021, wherein, while dealing with similar issue the Division Bench has expunged the adverse remarks made by the trial Court in para-34, 35 & 36.

3) Per Contra, learned State counsel would submit that the learned Court below in para 110 of the judgment dated 30.05.2019 clearly mentioned that according to the evidence deliberation made in Sr. No.35 to 40 of the said judgment, the collection of Rs. 45,00,000/- and one Innova Car belonging to Nishant jain of K.B. Group was included in the assets of the accused- Kundan Banjare, and therefore, adverse remarks was made against the petitioner. She would further submit that the learned trial Court after going through the records and appreciation of evidence recorded its finding, hence, no relief can be granted in favour of the petitioner.

4) Nishant Jain (PW/34) in his examination para-5 stated as under:-

5) On the basis of evidence of Nishant Jain (PW/4), learned trial Court recorded finding in para-110 as under:-

6) Way back in the year 1964, in the matter of The State U.P. v. Mohammad Naim (AIR 1964 SC 703), the Supreme Court (Constitution Bench) has held that the High Court can in exercise of its inherent jurisdiction expunge remarks made by it or by a Lower Court if it be necessary to do so to prevent abuse of the process of the court or otherwise, to secure the ends of justice and observed as under:-

"9. We think that the High Court of Bombay is correct and the High Court can in the exercise of its inherent jurisdiction expunge remarks made by it or by a lower court if it be necessary to do so to prevent abuse of the process of the court or otherwise to secure the ends of justice; the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only."

7) Their Lordships have also laid- down the test in considering the expunction of disparaging remarks made against persons or authorities whose conduct comes for consideration before the Court of law to be decided by them by summing up as under:-

"(a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself.

(b) whether there is evidence on record bearing on that conduct justifying the remarks; and

(c) whether it is necessary for the decision of the case as an integral part thereof, to animadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve."

8) Similarly, in the matter of Dr. Raghubir Saran v. State of Bihar (AIR 1964 SC 1), the Supreme Court has held that the High Court has inherent power to expunge objectionable remarks in judgment and order of the subordinate court against stranger, after it has become final and culled out the principles as under:-

"7-8. From the aforesaid discussion the following principles emerge:

(1) A judgment of a criminal Court is final; it can be set aside or modified only in the manner prescribed by law.

(2) Every Judge, whatever may be his rank in the hierarchy, must have an unrestricted right to express his views in any matter before him without fear or favour.

(3) There is a correlative and self-imposed duty in a Judge not to make irrelevant remarks or observations without any foundation, especially in the case of witnesses or parties not before him, affecting their character or reputation.

(4) An appellate Court has jurisdiction to judicially correct such remarks, but it will do so only in exceptional cases where such remarks would cause irrevocable harm to a witness or a party not before it.

When the question arises before the High Court in any specific case whether to resort to such undefined power it is essential for it to exercise great caution and circumspection. Thus when it is moved by an aggrieved party to expunge any passage from the order or judgment of a subordinate Court it must be fully satisfied that the passage complained of is wholly irrelevant and unjustifiable, that its retention on the records will cause serious harm to the person to whom it refers and that its expunction will not affect the reasons for the judgment or order."

9) 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."

10) 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).

11) 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."

12) 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."

13) 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)."

14) 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 8 2009 AIR SCW 3078 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."

15) 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 SCC716.

16) 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."

17) 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.

18) 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.

19) Particularly, it is not the case of respondents/State that petitioner was 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 (supra) 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 of the trial Court being unreasonable deserve to be expunged in the ends of justice.

20) Following the aforesaid principles laid down by the Supreme Court, we are inclined to allow this writ petition. Consequently, the adverse remarks made by the trial Court in para 110 in the matter of State of Chhattisgarh v. Kundan Banjare decided on 30.05.2019 are hereby expunged.

21) Accordingly, the writ petition is allowed to the extent indicated herein above.