Sagar Singh vs State

Shamsher Bahadur, J.—This is a petition u/s 561-A of the Code of Criminal Procedure for the expunction of certain remarks made by the Magistrate 1st Class, Batala, against Sagar Singh petitioner.

One Jagir Singh was prosecuted under sections 419/109, Indian Penal Code, and 465, Indian Penal Code, for having fraudulently obtained a permit for four bags of fertilizer for Hazara Singh. According to the prosecution, taccavi loans were given to the villagers for the purchase of fertilizer and Hazara Singh made an application for the grant of such a permit. The cultivator had to get his requirement verified through the Halqa Patwari and submit it to the officer who granted the permit. The permit was then taken to a depot-holder who was to distribute the fertilizer in accordance therewith. Balwant Singh, the Panchayat officer, Batala, was appointed by the Government to issue permits in the year 1957. Hazara Singh son of Phagi of Bhalewal made of application (Exhibit P.A.) before the Panchayat Officer for the grant of this fertilizer taccavi. Jagir Singh accused identified Hazara Singh before the Panchayat Officer who gave the permit. After the permit was obtained the fertilizer bags were handed over to him by Sagar Singh. Manager Batala Co-operative Commission shop. Before Sagar Singh, also Jagir Singh made the identification of Hazara Singh. According to the prosecution, Hazara Singh made a fictitious claim and was not actually qualified for the taccavi fertilizer and Jagir Singh had wrongfully identified him. The case was at first tried by Shri Ahahd who found the accused guilty by his order of 13th of May, 1959. Sagar Singh had appeared as a witness before, him. An appeal was taken to the Sessions Judge who remanded the case for retrial, on retrial the case was entrusted to Mr. Y.K. Jain, Magistrate, who recorded the evidence including the statement of the petitioner as P.W. 8. Mr. Jain was succeeded by Shri R.S. Das, who wrote the judgment on 30th of May, 1960. The accused was convicted and awarded a sentence of three months'' rigorous imprisonment u/s 419/184, Indian Penal Code, and to a similar term u/s 465, Indian Penal Code, both sentences to run concurrently.

The Magistrate in his judgment made certain observations about witnesses and the investigation. The remarks made against the petitioner were recorded after a finding had been reached with regard to the guilt of the accused.

Before dealing with the remarks which are sought to be expunged, it would be well to observe that the petitioner Sagar Singh who appeared as P.W.8, was not under any duty to see whether the person presenting the permit for delivery of the fertilizer was the one to whom the permit was actually issued or to verify that he was the person to whom it could have been issued. No rule has been cited that any duty was cast upon Sagar Singh to ascertain the validity of the permit. On the other hand, it has been contended by the counsel for Sagar Singh that the permit on presentation had simply to be honored by the delivery of fertilizer and it was only by way of abundant caution that the petitioner got Jagir Singh accused to identify Hazara Singh again before making the delivery of the fortilizer on the presentation of the permit which had been earlier issued to him by the Panchayat Officer.

In paragraph 7, the learned Magistrate observed as follows:-

It is quite probable that Balwant Singh, Panchayat Officer, who was himself arrested under sections 468 and 471, Indian Penal Code, might have had a hand in this whole affair and so much so that Sagar Singh P.W.8 might have connived the offence committed by the accused but it is very hard for me to believe that the accused has been falsely implicated.

There is hardly any justification for the implication of Sagar Singh and it seems to me that the remark is wholly unjustified. Sagar Singh is a Government employee and the suggestion which has been made by the learned Magistrate is calculated to tarnish his name and jeopardise his prospects. After holding that Jagir Singh had fraudulently identified a wrong person and also committed forgery of documents, the Magistrate then proceeded to discuss the conduct of the various witnesses. In dealing with Sagar Singh, the Magistrate has observed thus:-

Sagar Singh, the then Manager of Batala Co-operative Commission Shop, Batala, and now Inspector Co-operative Societies, Zira, District Ferozepur, also was remiss in the discharge of his duty. He was enjoined upon to attest the entries in the register Exhibit P.G. and his attestation was to consist of his affixing of his seal, signatures and date. The pages marked Exhibit P.G./2 and P.G./3 were attested by him on 14th April, 1957 but the page in between the two pages marked. Exhibit P.G./1 has also been attested but it is not dated. On this page exists the entry in the name of Hazara Singh. This omission of the date, in my opinion, is deliberate. The previous page Exhibit P.G./1 is dated 14th April, 1957 and the following is dated 14th April, 1957. I do not see any reason why this page is not dated arid that too dated 14th April, 1957. Either they have been attested when Sagar Singh, had come to know about the case against the accused and consequently the whole fertilizer affair or at the time on 14th April, 1957 he knew that a false entry did exist in the name of Hazara Singh. Not only this, according to him the accused was only a milk-seller and he was known to him because Sagar Singh etc. had got the Co-operative Credit Society in the village. I am really surprised in what capacity was the accused asked to identify the applicant when he was neither a lmbardar of the village nor Sarpanch and nor even a member of the Panchayat. The very fact that a milk seller was made to identify the applicant and that his identification was accepted shows that Sagar Singh''s conduct was also not above board and he is also to share the blame for causing loss to the Government.

Now, Sagar Singh was the person who was responsible for causing the exposure of the fraud and I have not understood the criticism which has been levelled against him. His testimony has not been disbelieved but his conduct has been adversely commented upon without affording him an opportunity to rebut the allegations which have been made. The reasoning in support of the judgment of the learned Magistrate is in no case dependent on the conduct of Sagar Singh. The integrity of the judgment would remain unimpaired if the remarks about the conduct of Sagar Singh are deleted. The discussion of this matter is wholly irrelevant to the decision of the case. Besides, as I have already indicated, the counsel for the State has not been able to cite any rules which might support the conclusion of the Magistrate that it was a part of his duty to issue the fertilizer only after satisfying himself about the identity of the person who presented the permit. On the contrary it seems that there is force in the contention of the petitioner''s counsel that whoever presented the permit was entitled to delivery.

The law on the subject is not in any doubt and Sir William Clark Chief Justice had said in Nur Din alias Kada v. The Emperor 27 P.R. 903=21 P.L.R. 1904 (Cr), that "the right of Magistrate to make disparaging remarks on persons who appear or are named in the course of a trial is one that should be exercised with great reserve and moderation, especially where the person disparaged has had little or no opportunity of explaining or defending himself. '' The points on which criticism has been made were never put to Sagar Singh and do not appear to be justified in the context of Courts. Fforde J. in Amar Nath v. King-Emperor AIR 125 Lah. 187=I.L.R. 5 Lah. 476, said that "a Judge has no right to test evidence given in Court by material which has not legally been made evidence." The Court in the present case never put any questions to the petitioner for the purpose of clearing up any matters about which he had been stigmatised by the Magistrate, who had not even recorded the evidence of the petitioner and merely wrote the judgment on the evidence as he found it. As observed by Fforde J., a Magistrate is justified in commenting adversely upon the evidence of a witness when once a particular fact warranting such criticism by proper evidence has been established. In a Special Bench of Tek Chand, Skemp and Abdul Rashid J. in AIR 1940 82 (Lahore) it was observed that "a passage which is not necessary to the conclusion of the Judge nor even necessary to his argument and is likely to militate seriously against party''s, earning a living m his profession should be expunged from the judgment." To a similar effect was the observation of Coldstream J. in AIR 1936 429 (Lahore) , that remarks damaging the character of a person and wholly irrelevant to any point in issue should be expunged from the judgment. I feel in this case that the Magistrate has gone out of his way to give his expressions of opinion which are not justified on the evidence and which the petitioner had no opportunity of rebutting. As observed by Sulaiman J. in Panchanan Banerji Vs. Upendra Nath Bhattacharji, , the High Court should expunge remarks which have, been unjustly made against a witness and for which there is no, foundation whatsoever and which indeed is a matter of inference from, evidence. All these principles have recently been reiterated by a Division Bench of this Court (Gosain and Harbans Singh JJ.) in Lal Singh Kang v. The State (1959) 61 P.L.R. 465, There is indeed a virtual consensus of opinion of all the High Courts in favour of the view that the High Court has an inherent jurisdiction u/s 561-A to cause expunction of such remarks which are irrelevant and are calculated to hurt a witness who has not been given an opportunity to furnish an explanation.

I would accordingly allow this petition and expunge the remarks mentioned aforesaid from the judgment of Shri Dass.