HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH AFR Court No. - 17 Criminal Misc. Application No.33742 of 2015 (Virendra Kumar II) In re: Case :- CRIMINAL APPEAL No. - 1150 of 2011 Appellant :- Hoshiyar Singh Respondent :- State Of U.P. Counsel for Appellant :- Satyendra Kr. Singh,Upendra Nath Misra Counsel for Respondent :- Govt. Advocate, Abhishek Mishra, Abhishek Ranjan,Salil Kumar Srivastava Hon'ble Dilip Gupta,J.
Hon'ble Shri Narayan Shukla,J.
This application has been filed for expunging the remarks made against the applicant in the judgment and order dated 25 February 2015 rendered by a Division Bench of this Court in Criminal Appeal No.1150 of 2011 (Hoshiyar Singh Vs. State). The aforesaid Criminal Appeal No.1150 of 2011 had been filed by the appellant against the judgment given on 6 May 2011 by the applicant in Sessions Trial No.1382 of 2009 (State Vs. Hoshiyar Singh). The appellant was convicted and sentenced by the applicant under Section 120-B of the Indian Penal Code, 18601 read with Section 120-B IPC; under Section 302 IPC read with Section 120-B IPC, under Section 364 IPC read with Section 120-B IPC, under Section 201 IPC read with Section 109 IPC, under Section 342 IPC read with Section 120-B IPC and under Section 7 Criminal Law Amendment Act, 1932 read with Section 120-B IPC.
The judgment in the Criminal Appeal was rendered by a Bench comprising Hon'ble Mr. Justice Imtiyaz Murtaza and Hon'ble Mr. Justice Ritu Raj Awasthi on 25 February 2015. While allowing the appeal, the Division Bench observed:
"In the above case, after acquittal of other accused persons, single person was also acquitted under Section 120-B IPC, and by this reckoning, we are of the opinion that in the instant case, only appellant could not be convicted under Section 120-B IPC when no other person has been charged alongwith him under the said Section.
Ultimately, Sri I.B. Singh, Senior Advocate fairly conceded that a single person cannot be convicted under Section 120B IPC. Under Section 120B IPC, prior agreement between two or more persons is necessary. In the instant case there is no finding or evidence in this regard that appellant had entered into agreement with any other person. Therefore, appellant alone cannot be convicted under Section 120B IPC and he is entitled to acquittal.
It is distressing that we have set at liberty an accused person for the indiscretion of the court below. An accused person whose involvement in extending uncanny help to the accused persons is writ large in the facts and circumstances, has gone unscathed without being punished but we are pained, we have no alternative option but to grant acquittal to the accused person.
As a result of foregoing conclusion, the appeal is allowed. The judgment and order of the court below dated 6.5.2011 is set aside and the appellant who has been convicted for offences as embodied in the judgment of the trial court is acquitted of the offence under section 120 B IPC. He is in jail. He shall be released forthwith unless wanted in any other case.
A copy of the judgment and order of this Court be sent to the trial court for compliance accordingly."
(emphasis supplied) The judgment and order in Sessions Trial No. 1382 of 2009 dated 6 May 2011 was, accordingly, set aside and the appellant was acquitted of the offence under Section 120-B and was directed to be released forthwith unless wanted in any other case. After having allowed the appeal, the Division Bench also made the following remarks against the applicant:-
"Before parting with the judgment, we may mention that the Sessions Judge while being totally negligent and careless during the trial, appears to have evinced his fragmentary knowledge of law that a single person charged or convicted under section 120 B IPC. A senior Judicial officer of his rank is supposed to be versatile on law. It is surprising to notice that he was not acquainted with the relevant law on the point that a single person cannot be charged or convicted under section 120 B IPC. He even did not care to frame appropriate charges with the other accused persons. Candidly enough, the act of the accused was punishable under various Sections enumerated in Chapter XI of the IPC.
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Hon'ble the Chief Justice, as per his discretion, if think proper, may send the officer for exhaustive training to be recharged with the nuances of law on the point. A copy of the judgment shall be placed before Hon'ble the Chief Justice for appropriate orders for sending the officer to J.T.R.I. for exhaustive training in law. A copy of the judgment be also sent to the Institute of Judicial Training and Research.
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(emphasis supplied) This application has been filed with a prayer that the Court may, in the exercise of its inherent powers, expunge the aforesaid remarks made against the applicant in the aforesaid judgment of the Division Bench.
The application was listed before a Bench consisting of Hon'ble Mr. Justice Surendra Vikram Singh Rathore and Hon'ble Mr. Justice Anant Kumar. On 15 April 2015, the Division Bench ordered that the matter may be listed at the earliest after taking nomination from Hon'ble the Chief Justice/Hon'ble Senior Judge before a Bench in which Hon'ble Mr. Justice Ritu Raj Awasthi is a member, since in the meantime Hon'ble Mr. Justice Imtiyaz Murtaza had retired. The Chief Justice on 16 April 2015 nominated a Bench comprising one of us (Dilip Gupta, J.) and Hon'ble Mr. Justice Ritu Raj Awasthi. However, Hon'ble Mr. Justice Ritu Raj Awasthi recused himself from the Bench. The matter was, accordingly, directed to be placed before Hon'ble the Chief Justice for nomination of another Bench to hear the application. Hon'ble the Chief Justice nominated a Bench consisting of one of us (Dilip Gupta, J.) and Hon'ble Mr. Justice Shri Narayan Shukla to hear the application. This is how the application has come up before this Bench for hearing.
Sri Upendra Nath Mishra, learned counsel for the applicant has submitted that remarks had been made against the applicant in the judgment for the reason that the appellant alone could not have been convicted under Section 120B IPC when no other person was charged with him under the said section but this is factually incorrect as Vibha Tiwari, Devendra Rajpoot, Santosh Tiwari and Pal Singh and Gaj Raj Singh were also charged and tried under Section 120B IPC though they had been acquitted under Section 120 B IPC but sentenced for commission of other offences. Learned counsel, therefore, submitted that the remarks that have been made against the applicant for this reason were not called for. In support of his contention that the appellant alone could have been convicted under Section 120-B, even if other persons charged under this Section had been acquitted, learned counsel has relied upon the decisions of the Supreme Court in Mohd. Arif @ Ashfaq Vs. State of NCT of Delhi2 and Bimbadhar Pradhan Vs. The State of Orissa3. Learned counsel for the applicant also submitted that strictures against a Judicial Officer should be sparingly made in judgments and in any case should not be made without affording a hearing to the Judicial Officer. In support of this contention, learned counsel has relied upon the decision of the Supreme Court In the Matter of 'K' a Judicial Officer and V.K. Jain Vs. High Court of Delhi4. It is also the submission of learned counsel for the applicant that the High Court has adequate powers under Section 482 of the Criminal Procedure Code, 19735 to expunge remarks made against the Judicial Officer in the judgment. To support this contention, learned counsel has placed reliance upon the decision of the Supreme Court in The State of Uttar Pradesh Vs. Mohammad Naim6 and Vishnu Agarwal Vs. State of Uttar Pradesh & Anr.7. Learned counsel pointed out that Section 362 Cr.PC. does not prohibit the High Court from exercising such inherent powers.
Learned Government Advocate and learned counsel for the appellant submitted that the application for expunging the remarks made in the judgment cannot be entertained in view of the bar contained in Section 362 Cr.PC.. They have, however, very fairly stated that it is for the Court to pass appropriate orders on the application.
We have considered the submissions advanced by learned counsel for the parties.
In order to appreciate the submissions made by the applicant, it would be appropriate to first narrate certain facts in brief which led to Sessions Trial No.1382 of 2009. The appellant was tried as an accused for an incident which had taken place in the intervening night on 23/24 December 2008 at Gail Bihar Colony, Auraiya in which a high official of the Public Works Department was brutally murdered at his official residence in the presence of his wife by the assailants who, it was alleged had association with a political party. The appellant was at the relevant time posted as Station Officer of Police Station Divyapur, Auraiya. He was subsequently transposed as an accused. The case of the prosecution has been described in the judgment rendered in this Appeal and is reproduced below:-
"Shorn of unnecessary details, the case of the prosecution is that at about 1.30 or 2 am in the dead of night, there was constant knocking at the door which awakened her. In turn, she shook her husband to wake up and thereafter, she herself approached nearer to the door and enquired about the identities of the persons. On being asked, one of the persons present at the door, gave his identity as one Tyagi from CID Delhi. When she and her husband made further queries, the unknown intruders broke open the door and gate-crashed into the house. It is further alleged that the intruders thereafter dragged her husband to the bedroom where the deceased was assaulted, whipped and administered electric current. It is further alleged that she heard assailants speaking while assaulting that his predecessor i.e. the Executive Engineer used to affix his signatures without any qualms or demur and that he was being assaulted for being too fussy and finicky. She also alleged that she heard her husband beseeching to be spared from further assault and also heard his entreaties by calling the names- Tyagi and Bhatia. She also alleged that her husband was incessantly assaulted for about 2 hours. She also alleged that the intruders sat in the bedroom for about two hours and they were constantly talking on mobile. She also alleged that she beseeched the intruders to spare her husband but they did not abide and forcibly took her husband in a car."
(emphasis supplied) Though we have in the earlier part of the judgment reproduced the reasons which found favour of the Division Bench for setting aside the conviction of the appellant, we consider it appropriate to again refer to the same for the purpose of appreciating whether the remarks that were made against the applicant in the judgment were justified. The Division Bench had observed that in the instant case, the appellant alone could not have been convicted under Section 120-B IPC, when no other person had been charged alongwith him under the said Section.
Before we proceed to deal with the issue raised by the learned counsel for the applicant that for a charge under Section 120-B of the Indian Penal Code, it is enough for the Court to find out that two or more persons were actually concerned in the criminal conspiracy and, therefore, the appellant could have been convicted even if all the other accused were acquitted, it is necessary to first examine the circumstances under which adverse comments can be made against a judicial officer by an appellate or revisional court in connection with a judgment given by a judicial officer and whether an application can be moved before the Court for expunging the remarks made in the judgment.
The Supreme Court has time and again observed that though the Courts have the power to make adverse comments against a judicial officer but the need and propriety to make such an observation should always be considered and that the Courts must observe sobriety, moderation and reserve. The Supreme Court has also observed that the Courts should remember that criticism and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own infirmities for not only is the judicial officer condemned unheard but the harm caused by such criticism or observations is also incapable of being undone. The Supreme Court has also pointed out that expunging of the observations by a judicial officer by filing an appeal or a petition reduces him to the status of a litigant which is not a very happy situation from the point of view of the functioning of the judicial system. The observations made by the Supreme Court in the matter of 'K' a Judicial Officer (supra), need to be reproduced and are follows:
"6. Several cases are coming to our notice wherein observations are being made against the members of subordinate judiciary in the orders of superior forums made on judicial side and judicial officers who made orders as presiding Judges of the subordinate courts are being driven to the necessity of filing appeals to this Court or petitions before the High Courts seeking expunging of remarks or observations made and sometimes strictures passed against them behind their back. We would therefore like to deal with a few aspects touching the making of observations or adverse comments against judicial officers and methodology to be followed if it becomes necessary.
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8. The primary purpose of pronouncing a verdict is to dispose of the matter in controversy between the parties before it. A judge is not expected to drift away from pronouncing upon the controversy, to sitting in judgment over the conduct of the judicial and quasi-judicial authorities whose decisions or orders are put in issue before him, and indulge into criticising and commenting thereon unless the conduct of an authority or subordinate functionary or anyone else than the parties comes of necessity under review and expression of opinion thereon going to the extent of commenting or criticising becomes necessary as a part of reasoning requisite for arriving at a conclusion necessary for deciding the main controversy or it becomes necessary to have animadverted thereon for the purpose of arriving at a decision on an issue involved in the litigation. This applies with added force when the superior court is hearing an appeal or revision against an order of a subordinate judicial officer and feels inclined to animadvert on him........
12. Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests :- (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. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve.
15. In the case at hand we are concerned with the observations made by the High Court against a judicial officer who is a serving member of subordinate judiciary. Under the Constitutional scheme control over the district courts and courts subordinate thereto has been vested in the High Courts. The control so vested is administrative, judicial and disciplinary. The role of High Court is also of a friend, philosopher and guide of judiciary subordinate to it. The strength of power is not displayed solely in cracking a whip on errors, mistakes or failures; the power should be so wielded as to have propensity to prevent and to ensure exclusion of repetition if committed once innocently or unwittingly. "Pardon the error but not its repetition". The power to control is not to be exercised solely by wielding a teacher's cane; the members of subordinate judiciary look up at the High Court for the power to control to be exercised with parent-like care and affection. The exercise of statutory jurisdiction, appellate or revisional and the exercise of constitutional power to control and supervise the functioning of the district courts and courts subordinate thereto empowers the High Court to formulate an opinion and place it on record not only on the judicial working but also on the conduct of the judicial officers. The existence of power in higher echelons of judiciary to make observations even extending to criticism incorporated in judicial orders cannot be denied, however, the High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have their own mischievous infirmities. Firstly, the judicial officer is condemned unheard which is violative of principles of natural justice. A member of subordinate judiciary himself dispensing justice should not be denied this minimal natural justice so as to shield against being condemned unheard. Secondly, the harm caused by such criticism or observation may be incapable of being undone. Such criticism of the judicial officer contained in a judgment, reportable or not, is a pronouncement in open and therefore becomes public. The same judge who found himself persuaded, sitting on judicial side, to make observations guided by the facts of a single case against a subordinate judge may, sitting on administrative side and apprised of overall meritorious performance of the subordinate judge, irretrievably regret his having made these observations on judicial side, the harming effect whereof even he himself cannot remove on administrative side. Thirdly, human nature being what it is, such criticism of a judicial officer contained in the judgment of a higher court gives the litigating party a sense of victory not only over his opponent but also over the judge who had decided the case against him. This is subversive of judicial authority of the deciding judge. Fourthly, seeking expunging of the observations by a judicial officer by filing an appeal or petition of his own reduces him to the status of a litigant arrayed as a party before the High Court or Supreme Court -- a situation not very happy from the point of view of the functioning of the judicial system. May be for the purpose of pleading his cause he has to take the assistance of a legal practitioner and such legal practitioner may be one practicing before him. Look at the embarrassment involved. And last but not the least, the possibility of a single or casual aberration of an otherwise honest, upright and righteous Judge being caught unawares in the net of adverse observations cannot be ruled out. Such an incident would have a seriously demoralising effect not only on him but also on his colleagues. If all this is avoidable why it should not be avoided?"
(emphasis supplied) It needs to be noticed that in the aforesaid judgment in the matter of 'K' a Judicial Officer (supra), the Supreme Court also pointed out that if the conduct of a judicial officer comes to the notice of a Judge of the High Court hearing the matter on the judicial side, the matter can be decided on merits but criticism of the subordinate judicial officer should be avoided and information about the conduct of the subordinate Judge can be brought to the notice of the Chief Justice. The observations are as follows:-
"16. .............The conduct of a judicial officer, unworthy of him, having come to the notice of a judge of the High Court hearing a matter on the judicial side, the lis may be disposed of by pronouncing upon the merits thereof as found by him but avoiding in the judicial pronouncement criticism of, or observations on the 'conduct' of the subordinate judicial officer who had decided the case under scrutiny. Simultaneously but separately in-office proceedings may be drawn up inviting attention of Hon'ble Chief Justice to the facts describing the conduct of the subordinate judge concerned by sending a confidential letter or note to the Chief Justice. It will thereafter be open to the Chief Justice to deal with the subordinate judicial officer either at his own level or through the inspecting judge or by placing the matter before the Full Court for its consideration. The action so taken would all be on the administrative side. The subordinate judge concerned would have an opportunity of clarifying his position or putting-forth the circumstances under which he acted. He would not be condemned unheard and if the decision be adverse to him, it being on administrative side, he would have some remedy available to him under the law. He would not be rendered remediless."
(emphasis supplied) In A.M. Mathur Vs. Pramood Kumar Gupta8, the Supreme Court sounded a note of caution that as a general principle for the proper administration of justice derogatory remarks should not be made against the judicial officers whose conduct comes into consideration unless it is absolutely necessary for the decision of the case.
In K.P. Tiwari Vs. State of Madhya Pradesh9 the Supreme Court observed that using intemperate language and castigating strictures on the officers of the lower judiciary diminishes the image of the judiciary as a whole in the eyes of public and therefore the higher courts should exercise restrain from using disparaging remarks against the lower judiciary.
Having noticed the aforesaid guiding parameters enumerated by the Supreme Court, what has now to be examined is whether a judicial officer against whom such remarks have been made by the High Court has a remedy of moving an application before the High Court for expunging the remarks in exercise of its inherent jurisdiction.
Section 482 Cr.PC which deals with inherent powers of High Court is as follows:-
"482. Saving of inherent powers of High Court.-Nothing in this Code shall be deemed to limit or affect the inherent powers of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of process of any Court or otherwise to secure the ends of justice."
In the matter of 'K' a Judicial Officer (supra), the Supreme Court made it clear that a subordinate Judge faced with undeserving remarks made by a Court of superior jurisdiction is not without a remedy. The judicial officer can approach the High Court by invoking its inherent jurisdiction, which jurisdiction vests in the High Court by virtue of it being a Court of record and possessed with inherent powers. The observations are as follows:
"11. A subordinate judge faced with disparaging and undeserving remarks made by a Court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a court of record and possessing inherent powers as also the power of superintendence. This view is settled by the law laid down in Dr.Raghubir Saran Vs. State of Bihar and Anr. AIR 1964 SC 1. However, if a similar relief is sought for against remarks or observations contained in judgment or order of High Court the aggrieved judicial officer can, in exceptional cases, approach this Court also invoking its jurisdiction under Article 136 and/or 142 of the Constitution. With the law laid down by this Court in Dr. Raghubir Saran (supra) and the State of Uttar Pradesh Vs Mohd. Naim [1964]2SCR363 it is well-settled that the power to expunge remarks exists for redressing a kind of grievance for which the law does not provide any other remedy in express terms though it is an extraordinary power. Any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests :- (i) that the passage complained of is wholly irrelevant and unjustifiable; (ii) that its retention on the records will cause serious harm to the persons to whom it refers; (iii) that its expunction will not affect the reasons for the judgment or order."
(emphasis supplied) In Mohd. Naim (supra) the Supreme Court examined whether the State Government had a locus to make an application under Section 561-A of the old Cr.PC (now Section 482 Cr.PC) for expunging certain remarks made in the judgment against the State and whether the High Court had the inherent power to expunge remarks made by it. In connection with the first issue, the Supreme Court observed that the finding of the learned Judges that the State Government had no locus standi was erroneous and the observations are as follows:-
"7. The first point which falls for consideration is whether the State of Uttar Pradesh had locus standi to make the application under Section 561-A Cr.P.C. We may first read the section:
"Nothing in this Code shall be deemed to limit or affect that inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
It is now well settled that the section confers no new powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the Court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code (see Jairam Das v. Emperor, AIR 1945 PC 94 and Emperor v. Nazir Ahmad, AIR 1945 PC 18). We shall presently deal with the question whether the High Court has inherent power to expunge the remarks made by it or by a lower court to prevent abuse of the process of any court or otherwise to secure the ends of justice. ..................................We have, therefore, come to the conclusion that the finding of the learned Judge that the State Government has no locus standi to make the application under Section 561-A Cr. P.C. is erroneous in law.
(emphasis supplied) The Supreme Court then examined whether the High Court had inherent powers to expunge remarks made by the High Court to secure the ends of justice. The Supreme Court held that the High Court can exercise its inherent jurisdiction to expunge the remarks made by it if it was necessary to do so to prevent the abuse of the process of the Court or otherwise to secure ends of justice and the observations are as follows:-
"The second point for consideration is this, has the High Court inherent power to expunge remarks made itself or otherwise to secure the ends of justice? There was at one time some conflict of judicial opinion on this question. 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. Mohd. Hassan, AIR 1943 Lah 298; State v. Chhotey Lal, 1955 All LJ 240; Lalit 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 Patna 364 and In re Ramaswami, AIR 1958 Mad 305). ..................
We think that the view taken in the High Courts other than 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."
(emphasis supplied) The Supreme Court also examined whether it was a case where the jurisdiction under Section 561-A Cr. P.C. should have been exercised in respect of the observations complained of by the State Government and in this context observed:-
"10........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 anybody, 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, fair-play 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; (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 recognised that judicial pronouncement must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.
11. ........We consider that the remarks made by the learned Judge in respect of the entire police force of the State were not justified on the facts of the case, nor were they necessary for the disposal of the case before him."
(emphasis supplied) In Abdul Aziz Beg Vs. State of J& K. and Anr.10 the Jammu & Kashmir High Court followed the decision of the Supreme Court in Mohd. Naim (supra), and observed as follows:-
"That the High Court possesses inherent power to expunge passages from judgments whether passed by itself or by the subordinate Courts under Section 561-A Cr. P.C. is now well settled. (See with advantage AIR 1961 All 288). The power, however, being of an extraordinary nature, must be exercised sparingly and with restraint only in exceptional cases with a view to secure the ends of justice. In the instant case the remarks, as noticed above are certainly disparaging and harsh against the petitioner who was not even a party to the bail application and whose conduct was not even under consideration before the Court. It is a settled law that harsh or disparaging remarks are not to be made against persons and authorities even if their conduct comes into consideration before the Courts of law unless it is really necessary, for the decision of the case, as integral part thereof, much less in cases where their conduct is not under consideration."
Thus, inherent powers of the High Court can be exercised under Section 482 Cr.P.C. for expunging remarks made in a judgment.
An objection has been raised by learned counsel for the respondents that in view of the provisions of Section 362 Cr.P.C., the present application filed by the applicant for expunging remarks made by the Division Bench while deciding the Criminal Appeal is not maintainable.
To appreciate this submission, it is necessary to reproduce Section 362 of Cr.P.C. and the same is as follows:
"362. Court not to alter judgment.-Save as otherwise provided by this Code or by any other law for the time being in force, no Court, when it has signed its judgment or final order disposing of a case, shall alter or review the same except to correct a clerical or arithmetical error."
A bare perusal of Section 362 of Cr.P.C. would show that after providing "save as otherwise provided by this Code", it proceeds that no Court, when it has signed its judgment shall alter or review the same except to correct a clerical or arithmetical error. Thus, when Section 482 Cr.P.C. provides for exercise of the inherent powers of the High Court, Section 362 would not bar the moving of an application to expunge the remarks.
The provisions of Section 362 Cr.P.C. were also examined by the Supreme Court in Vishnu Agarwal Vs. State of U.P. & Anr.11 and it was observed:-
"In our opinion, Section 362 cannot be considered in a rigid and overtechnical manner to defeat the ends of justice. As Brahaspati has observed:-
"Kevelam shastram ashritya na kartavyo vinirnayah yuktiheeney vichare tu dharmahaani prajayate".
Which means:
"The court should not give its decision based only on the letter of the law.
For if the decision is wholly unreasonable, injustice will follow."
This now brings us to the main issue as to whether the remarks that have been made against the applicant are required to be expunged. This aspect, as noticed above, has to be addressed in the light of the observations made by the Supreme Court in the matter of 'K' a Judicial Officer (supra). We are conscious that we are not sitting in Appeal over the judgment of the Division Bench and have only to decide whether the remarks made against the applicant should be expunged. The Division Bench while deciding the Criminal Appeal, after concluding that the appellant alone could not have been convicted under Section 120-B, IPC when no other persons had been charged along with him under that section, observed that it was distressing that the appellant was being set at liberty for the indiscretion of the court below. It is for this reason that the Division Bench directed that the appellant "being totally negligent and careless during the trial, appears to have evinced his fragmentary knowledge of law that a single person charged or convicted under section 120-B IPC" and that the appellant "was not acquainted with the relevant law on the point that a single person cannot be charged or convicted under section 120 B IPC". The Division Bench also observed that the applicant "did not care to frame appropriate charges with the other accused persons" and that "candidly enough, the act of the accused was punishable under various sections enumerated in Chapter XI of the IPC".
To appreciate the contention advanced by learned counsel for the applicant for expunging the remarks, it would be appropriate to reproduce certain paragraphs of the present application and they are as follows:-
"(2). It is the case of the petitioner that the petitioner had passed the Judgment in question and had convicted the Hoshiyar Singh herein for offence punishable under section 120-B of Indian Penal Code along with other offences in perfect consonance of the law laid down by this Hon'ble Court on numerous occasions.
(3). In connected S.T. no.446/2009 State Vs. Shekhar Tiwari & others charge under section 120B IPC and separate charge under section 109 IPC and under section 201 IPC chapter-XI, according to view expressed by Hon'ble High Court were also framed against co-accused Devendra Rajpur, Santosh Awasthi, Pal Singh and Gajraj Singh and in S.T. 447/2009, the same charges were framed against co-accused Smt. Vibha Tiwari. The all accused persons of S.T. no.446/2009 and 447/2009 have been convicted by petitioner/applicant and Hon'ble High Court of Judicature at Allahabad has dismissed appeal no.1165/2009 to 1171/2009, 1344/2009 and 937/2009 Shekhar Tiwari & Others Vs. State of U.P. vide its judgment dated 23.2.2015.
(4). Therefore, it is not correct that petitioner had framed charge under section 120B IPC against the single accused Sri Hoshiyar Singh and convicted him only.
(6). It is most respectfully submitted that the petitioner is a senior sub-ordinate judicial officer in the State (ranked District Judge), who joined the State Judicial Service as Munsif/Civil Judge (Junior Division) in the year 1984 and since then he has been serving the cause of justice with utmost honesty and integrity and his career so far has been unblemished. It is relevant to mention that the petitioner has served on important posts in the sub-ordinate judiciary of the State and is currently charged with responsibility of Vigilance Officer.
(14). That it is submitted that in para 21 of judgment dated 6.5.2011 passed by the petitioner/applicant in S.T. no.446/2009 State Vs. Shekhar Tiwari and others and S.T. no. 447/2009 State Vs. Vibha Tiwari, had framed charges against other accused persons for offences punishable u/s. 147, 148, 458, 302 read with section 149, 364 read with Section 149, 342 read with section 149, Section 201 IPC read with section 149 IPC and section 7 Criminal Law Amendment Act, read with Section 149 IPC and alternative charge under section 120B IPC was framed against the accused persons Devendra Rajpoot, Santosh Tiwari, Pal Singh and Gajraj Singh.
(15). That in S.T. no.447/2009 State Vs. Vibha Tiwari charge for offences punishable under section 120,458 read with 120B, 302 read with 102B, 364 read 120B, 342 read with 120B, section 201 read with section 109 IPC and section 7 Criminal Law Amendment Act was framed against the accused Smt. Vibha Tiwari.
(16). That in S.T. No.446/2009 all the accused persons Shekhar Tiwari, Yogendra Doharey @ Bhatia, Vinay Tiwari @ Tyagi, Ram Babu @ Pooti, Manoj Awasthi, Santosh Tiwari Devendra Rajpoot, Pal Singh and Gaj Raj Singh were found guilty and were punished for offences punishable u/s. 147 IPC for sentence of rigorous imprisonment for one year u/s. Section 302 read with section 149 IPC for sentence of rigorous imprisonment for life and fine of Rs.50,000/-, u/s. 364 IPC read with section 149 IPC for sentence of rigorous imprisonment for 10 years and fine Rs.10,000/- u/s. 342 read with section 149 IPC, sentence for rigorous imprisonment for six months u/s. 201 read with section 149 IPC, sentence for rigorous imprisonment for two and half years and fine Rs.3,000/- u/s. 458 read with section 149 IPC sentence for rigorous imprisonment of 7 years and fine of Rs.5,000/- and u/s. 7 Criminal Law Amendment Act, sentence of rigorous imprisonment for three months for each accused.
(17). That Devendra Rajpoot, Santosh Tiwari, Pal Singh and Gaj Raj Singh were acquitted for offence punishable u/s. 120B IPC only as they participated in the incident, although they were sentenced for other offences as narrated in preceding paragraph.
(18). That the accused persons Shekhar Tiwari, Yogendra Doharey @ Bhatia, Vinay Tiwari @ Tyagi, Ram Babu @ Pooti, Manoj Awasthi, Santosh Tiwari Devendra Rajpoot, Pal Singh and Gaj Raj Singh were acquitted for offence punishable u/s. 148 IPC.
(19). That the accused Vinay Tiwari @ Tyagi, Ram Babu @ Pooti, Manoj Awasthi were convicted for sentence of rigorous imprisonment for one and half year for offence punishable u/s. 148 IPC. For default to deposit fine each accused was sentenced for sentence of rigorous imprisonment for 5 years.
(20). That in S.T. No. 447/2009 State Vs. Vibha Tiwari, the accused Smt. Vibha Tiwari was found guilty for offence punishable u/s. 456 IPC and sentenced for sentence of rigorous imprisonment for two and half years and fine Rs.1500/- u/s. 201 IPC, for sentence of sentence of rigorous imprisonment for two and half years and fine Rs.3000/- and under section 342 IPC for sentence of sentence of rigorous imprisonment for six months. For default to deposit fine sentence of additional one year was passed. Smt. Vibha Tiwari was acquitted for offence u/s. 120B, u/s. 302 read with section 120B, section 364 read with section 120B and section 7 Criminal Law Amendment Act. It is pertinent to mention here that on the basis of the evidence it was found that she reached at the place of occurrence at the end of the incident.
(22). That on 21.1.2010 charges in S.T. No.1382/2009 State Vs. Hoshiyar Singh u/s. 120B, 458 read with 120B, 302 read with 120B, section 364 read with section 120B, section 201 read with section 109 IPC and section 7 Criminal Law Amendment Act read with section 120B IPC were framed against the accused Hoshiyar Singh SHO, during the course of Trial. Thus charge u/s. 201 IPC in Chapter XI of IPC and for other offences read with Section 109 IPC were framed by petitioner/applicant. The charge only u/s. 120B IPC was not framed, but charges offence punishable u/s. 302, 364, 342, 201, 109 IPC alongwith offence u/s. 7 Criminal Law Amendment Act were also framed.
(23). That in para 317 and 318 of the judgment dated 6.5.2011 passed by the petitioner/applicant a detailed conduct and omissions committed by the accused Hoshiyar Singh has been narrated by the petitioner/applicant. He acted on direction of accused Vibha Tiwari w/o accused Shekhar Tiwari.
(25). That it is specifically mentioned in para pertaining to hearing on punishment that accused Hoshiyar Singh is found guilty for offence u/s. 120B, IPC and according provisions of section 109 IPC, he would have also be punished, as he investigated the crime. Charge u/s. 109 IPC was also framed against him by the petitioner/applicant alongwith offence u/s. 201 IPC, which is offence mentioned in Chapter XI of IPC.
(26). That the petitioner/applicant sentenced accused Hoshiyar Singh for offence u/s. 458 read with section 120B IPC for sentence of rigorous imprisonment for 7 years and fine of amount of Rs.50,000/- u/s. 302 IPC read with section 120B IPC for sentence rigorous imprisonment for 7 years and fine of amount of Rs.50,000/- u/s. 364 IPC read with section 120 IPC for sentence of rigorous imprisonment for ten years and fine of Rs.10,000/- u/s. 342 IPC read with section 120B IPC. For sentence of rigorous imprisonment for 6 months, u/s. 201 IPC, for sentence of rigorous imprisonment for two and half years and fine Rs.3000/- and u/s. 7 Criminal Law Amendment Act read with section 120 IPC for sentence of rigorous imprisonment for 3 months.
Hence he was charged and convicted independently for offence punishable u/s. 201 IPC, offence mentioned in Chapter XI of IPC, according to view expressed by Hon'ble Division Bench. Hoshiyar Singh was found guilty of offence of abetment of other offences mentioned above also according to provisions of section 109IPC. Therefore, proper charges were framed by the petitioner/applicant against the accused Hoshiyar Singh and accordingly, trial was conducted and concluded legally."
To bring home the charge of criminal conspiracy within the ambit of Section 120B, it is necessary to establish that there was an agreement between the parties for doing the unlawful act. It is not in dispute that charges against number of persons had been framed in the connected Sessions Trial under Section 120B IPC but these persons were acquitted. The issue is as to whether the appellant alone could have been convicted under Section 120-B IPC even if all the other accused were acquitted was considered by the Supreme Court in Mohd. Arif (supra) and the observations are as follows:-
"196. .......... The Solicitor General, therefore, rightly submitted that the case of the prosecution that there was a conspiracy to attack the Red Fort and kill innocent persons, was not affected even if the other accused persons who were alleged to have facilitated and helped the appellant, were acquitted.
197. The question of a single person being convicted for an offence of conspiracy was considered in Bimbadhar Pradhan v. State of Orissa, AIR 1956 SC 469. Paragraph 14 thereof is relevant for us. which is as follows :
"14. Another contention raised on behalf of the appellant was that the other accused having been acquitted by the trial court, the appellant should not have been convicted because the evidence against all of them was the same. There would have been a great deal of force in this argument, not as a question of principle but as a matter of prudence if we were satisfied that the acquittal of the other four accused persons was entirely correct. In this connection the observations of this Court in the case of Dalip Singh v. State of Punjab, 1954 (1) SCR 145 and of the Federal Court in Kapildeo Singh y. King, (1949) FCR 834, are relevant. It is not essential that more than one person should be convicted of the offence of criminal conspiracy. It is enough if the court is in a position to find that two or more persons were actually concerned in the criminal conspiracy. If the courts below had come to the distinct finding that the evidence led on behalf of the prosecution was unreliable, then certainly no conviction could, have been based on such evidence and all the accused would have been equally entitled to acquittal. But that is not the position in this case as we read the judgments of the courts below...............
207. There was no argument addressed before us to the effect that there was no conspiracy. The only argument advanced was that the Appellant alone could not have been convicted for the conspiracy, since all the other accused were acquitted. We have already stated the principles which have emerged from various decisions of this Court. Once the prosecution proves that there was a meeting of minds between two persons to commit a crime, there would be an emergence of conspiracy. The fact that barely within minutes of the attack, the BBC correspondents in Srinagar and Delhi were informed, proves that the attack was not a brainchild of a single person. The information reached to BBC correspondent at Srinagar and Delhi sufficiently proves that there was a definite plan and a conspiracy. Again the role of other militants was very clear from the wireless message intercepted at the instance of BSF. Unless there was a planning and participation of more than one persons, all this could never have happened."
(emphasis supplied) This aspect was considered by the Division Bench but has not found favour in view of the judgment of the Supreme Court in Vinayak Vs. State of Maharashtra12. Relevant paragraph 14 of the judgment rendered by the Supreme Court in Bimbadhar Pradhan (supra) was also placed before the Division Bench but the Division Bench observed that the judgment would be of no help.
It also needs to be noticed that charge under Section 109, IPC was also framed against the appellant along with an offence under Section 201 IPC which is an offence contained in Chapter XI of the IPC.
It is in the light of the aforesaid facts that it has to be examined whether it was really necessary to make the observations referred to above against the applicant, more particularly when they would not have any impact on the merits of the judgment. At this stage, we need to remind ourselves of the observations that have been made by the Supreme Court in connection with the making of adverse comments against Judicial Officers while deciding of an Appeal or a Revision and the same are as follows:-
"i). A Judge should not indulge in criticisms or make comments on a judgment while deciding an Appeal or a Revision unless it is necessary to do so as a part of reasoning for arriving at a conclusion necessary for deciding the main controversy;
ii) There should be evidence on record bearing on that conduct justifying the remarks;
iii) The role of the High Court is of a friend, philosopher and guide to the subordinate judiciary and the strength of power is not displayed solely in cracking a whip on errors, mistakes or failures;
iv) The High Courts have to remember that criticisms and observations touching a subordinate judicial officer incorporated in judicial pronouncements have mischievous infirmities as not only is the judicial officer condemned unheard, but the harm caused by such criticism or observations may be incapable of being undone;
v) The criticism gives the litigating party a sense of victory not only over his opponent but also over the judge who had decided his case. This is subversive of the judicial authority of the deciding judge;
vi) The Judicial Officer, in such a situation, is reduced to the status of a litigant as he has to move an application for expunging the observations and possibility of a righteous Judge being caught unawares in the net of adverse observations would have a seriously demoralising effect not only on him but also on his colleagues; and
vii) that using intemperate language and castigating strictures on the officers of the lower judiciary diminishes the image of the judiciary as a whole.
Having considered the aforesaid principles ennunciated by the Supreme Court and the factual position enumerated in the application filed by the applicant, we are of the considered opinion that the observations made against the applicant were wholly uncalled for. In the first instance, the observations were not necessary as a part of reasoning to arrive at the conclusion and secondly they were even otherwise not called for. It had been argued on behalf of the State during the hearing of the Criminal Appeal on the basis of a decision of the Supreme Court in Bimbadhar Pradhan (supra) that it was not essential that more than one person should be convicted for an offence of criminal conspiracy and the appellant alone could have been convicted even if all the other accused were acquitted. The Division Bench distinguished this decision for the reason that it would not apply to the facts of the present case. The applicant had also framed a charge under section 109 IPC along with an offence under section 201 IPC which is an offence contained in Chapter XI of the IPC. It cannot, therefore, be said that the applicant was either negligent or careless during the trial or that he lacked fragmentary knowledge of law.
We, therefore, for all the reasons stated above, have no hesitation in deleting the following observations made in the judgment:-
"Before parting with the judgment, we may mention that the Sessions Judge while being totally negligent and careless during the trial, appears to have evinced his fragmentary knowledge of law that a single person charged or convicted under section 120 B IPC. A senior Judicial officer of his rank is supposed to be versatile on law. It is surprising to notice that he was not acquainted with the relevant law on the point that a single person cannot be charged or convicted under section 120 B IPC. He even did not care to frame appropriate charges with the other accused persons. Candidly enough, the act of the accused was punishable under various Sections enumerated in Chapter XI of the IPC.
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Hon'ble the Chief Justice, as per his discretion, if think proper, may send the officer for exhaustive training to be recharged with the nuances of law on the point. A copy of the judgment shall be placed before Hon'ble the Chief Justice for appropriate orders for sending the officer to J.T.R.I. for exhaustive training in law. A copy of the judgment be also sent to the Institute of Judicial Training and Research.
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The application is, accordingly, allowed.
Order Date :- 17.7.2015 NSC (Dilip Gupta, J.) (Shri Narayan Shukla, J.)