Sheikh Abbas & Others vs Abdul Rashid Khuroo & Ors
2021 Latest Caselaw 1640 j&K/2

      IN THE HIGH COURT OF JAMMU & KASHMIR AND
                     AT SRINAGAR

                                              Reserved on: 15.12.2021
                                             Pronounced on: 21.12.2021


                         CRMC No.264/2017


SHEIKH ABBAS & OTHERS                            ... PETITIONER(S)

            Through: - Mr. G. A. Lone, Advocate, with
                         Mr. Majeeb Andrabi, Advocate.

Vs.

ABDUL RASHID KHUROO & ORS.                     ...RESPONDENT(S)

            Through: - Mr. Javid Ahmad Parray, Advocate.


CORAM:      HON'BLE MR. JUSTICE SANJAY DHAR, JUDGE


                               JUDGMENT

1) Petitioners have challenged judgment/order dated 25.10.2017

passed by Judicial Magistrate 1st Class (Sub Judge), Pattan, in a

complaint under Section 26(1)(2)(i)(ii) of Food Safety & Standards

Act, 2006. The petitioners are aggrieved of the aforesaid

judgment/order only to the extent of certain remarks and observations

made by the learned Magistrate while passing the aforesaid judgment.

2) The facts which emerge from the record are that a complaint for

offences under Section 59 & 52 read with Section 3(1)(zz) and

3(1)(zf)(A)(i) of Food Safety & Standards Act, 2006 (hereinafter

referred to as the Act of 2006) came to be filed by Food Safety

Officer, Pattan, against the respondents herein. The petitioners herein

happen to be the officers of the complainant department and in

launching prosecution against the respondents, they, in exercise of

their powers under the provisions of the Act of 2006, initiated and

undertook action in the matter. It appears that cognizance of the

offences was taken by learned trial Magistrate and process was issued

against the respondents, who, after appearance before the trial

Magistrate, pleaded not guilty to the offences. Accordingly, the

complainant department was directed to lead evidence in support of

the allegations made in the complaint. After recording statements of a

couple of witnesses of the complainant, the learned trial Magistrate

closed the evidence of the complainant whereafter even the defence

evidence also came to be closed. Ultimately, vide the impugned order,

the learned trial Magistrate held that the complaint has been filed

beyond the prescribed period of limitation and, as such, the same is

not maintainable. Accordingly, the complaint of the complainant was

dismissed and the accused/respondents were acquitted. While passing

the aforesaid judgment/order of dismissal of the complaint, certain

disparaging remarks came to be passed by the Ld. Magistrate against

the petitioners.

3) It would be apt to notice the relevant portions of the impugned

judgment/order, of which the petitioner are aggrieved. The same are

reproduced as under:

"Complainant has engaged services of some lawyer who is not able to assist the court which is very unfortunate. He was asked to submit the law on the subject but he has given photo state of newspapers

which unfortunately are the cases where persons of the accused have convicted by the Judicial Magistrate Budgam. The counsel is unable to understand the language of the court and has miserably failed to convince the Court. During recording of the statement of the complainants witness not a single document has been exhibited which establishes the conduct and the technical knowhow, Counsel appearing on behalf of the complainant did not even bother to seek the adjournment for preparing the case and advancing the arguments in support of the complaint. The result of this complainant fails on the following counts: -

1. From the perusal of the case file, it appears that the instant case although established by the report of the referral laboratory which reads as under.

2. The case stand compromised by Food Analyst Kashmir namely Hamidullah Dar who in his opinion has confirmed that the product in question qualified the parameters, this is not the first case where court has observed that cases/products questionable have been compromised by the said Food Analyst namely Hamidullah Dar, in this behalf this Court reiterates that the commissioner Food Safety shall review the requirements of this service3s in the department. He has been all along failed to provide his services for which he has been appointed either the said Food Analyst Kashmir Hamidullah Dar is corrupt or he is unable to perform his duties both situations are not acceptable where health of the citizens are involved. Let these observations be placed on his service record and enquiry be initiated against him.

3. That the report from the referral Laboratory Calcutta has been received by the department on 17.02.2015 and sanction in this behalf has been accorded on 29.01.2015 by the Commissioner of Food Safety of Jammu and Kashmir Government and the instant complaint has been preferred before this Court on 08.03.2016, so more than one year has been elapsed from the date of opinion of referral laboratory and to the date of institution of the instant complaint. Even if it is presumed that offence has been established by the report of referral laboratory the statutory period prescribed

under the Act is one year and what has prevented the concerned officers i.e., the then Food Safety Officer and the designated Officer concern to present the complaint within the statutory period of one year clearly establishes that the officer is responsible for the delay have compromised their legitimate duties and responsibilities in this behalf Commissioner Food Safety Act J&K shall deal with the officers at guilty and part from initiating a departmental enquiry against them and upon establishing the enquiry he shall refer the matter to the vigilance organization for registration of the case as such case compromised.

4. That the department has engaged services of a lawyer who has all along showered favors upon the accused persons inasmuch as he has not exhibited a single document relied and referred in the complaint during recording the statements of the complainant in the case. That he has not submitted a single word in favor of the complainant or has referred any law regarding the subject matter despite opportunity and time granted to the counsel. As such case compromised.

In the attending facts and circumstances of the case the instant complaint is dismissed as time barred, as discussed herein above and in light of the law laid down (supra) and the relevant provisions of the Act, accused persons are acquitted and discharged from their bail bonds.

Before parting rupees one lac is imposed as costs upon the officers responsible for compromise the case which shall be recovered by the Commissioner Food Safety from the service dues of the officers responsible and be deposited before this Court within a period of one year, with direction that henceforth engage a service of a ld. Advocate so that facts are brought I the notice of the Court for taking appropriate steps towards administration of justice. Copy of this order be served upon Commissioner Food Safety Act for compliance."

4) The petitioners are challenging the portions of the afore-quoted

observations which, according to them, are detrimental to their

integrity and functioning.

5) I have heard learned counsel for the parties and perused the

record of the case including record of the trial court.

6) In the instant case, the learned Magistrate has, while passing the

impugned order, observed that petitioner No.2 has compromised the

case of complainant, and that as this was not the first instance of its

kind. In this regard the learned Magistrate has observed that

Commissioner, Food Safety, should take review regarding services of

the said petitioner. The learned Magistrate has even branded the

aforesaid petitioner as corrupt and inefficient. Similarly, the learned

Magistrate has gone on to observe that the attitude of petitioners has

been callous which has resulted in filing the complaint beyond the

prescribed period of limitation and that they are responsible for the

delay. A direction has been issued for holding of a departmental

enquiry against them. Remarks have also been passed against the

lawyer who was conducting the case on behalf of the complainant.

The learned Magistrate has not stopped here. He has even imposed a

cost of Rs.1.00 lac upon the officers with a further direction to deposit

the same in the trial court.

7) The law as regards the passing of disparaging remarks and

adverse comments/strictures in the judgments is well settled. It has

been the consistent view of the Supreme Court that normally courts

should avoid making adverse remarks and passing strictures against

public officers unless it is absolutely necessary for disposal of the

case. Here it would be apt to refer to the judgment of Supreme Court

in the case of State of W. B and others v. Babu Chakraborthy, (2004)

12 SCC 201. In the said case the Supreme Court has, while setting

aside the remarks and observations made by the High Court against

the police officers and the State in a case relating to NDPS Act, made

certain observations which are relevant to the context and the same

are reproduced as under:

"30.Replying to the arguments of Mr. Viswanathan, Mr. Tapas Ray, learned senior counsel, submitted that the operating portion of the impugned judgment clearly brings out the perversity in the judgment. According to him, the strictures that has been passed against the appellants by the Division Bench of the High Court are wholly unjustified and are liable to be expunged. He is right in his submission. In our view, the High Court was not justified and correct in passing observations/strictures against appellants 2 & 3 without affording an opportunity of being heard, and it is in violation of catena of pronouncements of this Court that harsh or disparaging remarks are not to be made against the persons and authorities whose conduct comes into consideration before Courts of law unless it is really necessary for the decision of the case. Likewise, the directions issued by the High Court to the trial Court to lodge a complaint to the Magistrate having jurisdiction for prosecuting appellants 2 and 3 for having committed and offence under Section 58 of the Act read with Section 166 and 167 of the Indian Penal Code is not warranted. The observations made by the High Court are liable to be expunged and accordingly, we expunge the same including the direction to lodge a complaint against appellants 2 & 3.

31.As rightly pointed out by Mr. Tapas Ray, the observations of the High Court in the impugned judgment passing strictures against the appellants have been made while against the record of the case and penalize the two police officers who were discharging their official duties as per the law. The action taken by appellants 2 & 3 have been taken in the case of discharging of their official duties while discharging their duties, the official would have violated certain provisions. That does not, in our opinion, enables the Court to pass strictures against the officials and ordered compensation. There is no evidence or circumstance to show that there was any malafides on the part of these officers."

8) Again, in the case of State of Madhya Pradesh v. Narmada

Bachao Andolan and another, (2011) 12 SCC 689, a similar question

came up for consideration and it was observed that adverse remarks

should not be made lightly as it may seriously affect the character and

integrity of an individual, particularly when he is not before the Court.

Paras 13, 14 and 15 of the judgment are relevant to the context and the

same are reproduced as under:

"13.The cardinal principle of the administration of justice requires for proper freedom and independence of Judges and such independence must be maintained and Judges must be allowed to perform their functions freely and fairly and without undue interference by anybody, even by this Court. However, it is also equally important that in expressing their opinions the Judges must be guided by consideration of justice, fair play and restraint. It should not be frequent that sweeping generalisations defeat the very purpose for which they are made. Thus, 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.

14. This view has been persistently approved and followed by this Court as is evident from the judgments in Jage Ram. v. Hans Raj Midha, Niranjan Patnaik v. Sashibhusan Kar, Major General I.P.S. Dewan v. Union of India,. Dilip Kumar Deka. v. State of Assam, and State of Maharashtra v. Public Concern for Governance Trust.

15. Thus, the law on the issue emerges to the effect that the court may not be justified in making adverse remarks/passing strictures against a person unless it is necessary for the disposal of the case to animadvert to those aspects in regard to the remarks that have been made. The adverse remarks should not be made lightly as it may seriously affect the character, competence and integrity of an individual in purported desire to render justice to the other party."

9) In State (NCT of Delhi) v. Pankaj Chaudhary and others,

(2019) 11 SCC 575, the Supreme Court observed that 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 on their official career. Paras 42,

43 and 44 of the judgement are relevant to the context and the same

are reproduced 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 on their official career.

43. In S.K. Viswambaran v. E. Koyakunju, this Court held as under(SCC pp.113& 116-17, paras 9 & 13-14:-

"9. Stung by the remarks made against him without even a hearing.............".

13. We have also to point out a grievous procedural error committed by the High Court. Even assuming for argument's sake that for expunging the remarks against Respondents 2 and 3 the conduct of the appellant required scrutiny and merited adverse comment, the principles of natural justice required the High Court to have issued notice to the appellant and heard him before passing adverse remarks against him if it was considered necessary. By its failure the High Court has failed to render elementary justice to the appellant.

14. ...........In State of U.P. v. Mohd. Naim, it was held as follows(AIR 1964 SC 703):

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

This ratio has been followed in R.K. Lakshmanan v. A.K. Srinivasan and Niranjan Patnaik v. Sashibhusan Kar (to which one of us was a party). Judged in the light of the above tests, it may be seen that none of the tests is satisfied in this case. It is indeed regrettable that the High Court should have

lightly passed adverse remarks of a very serious nature affecting the character and professional competence and integrity of the appellant in purported desire to render justice to Respondents 2 and 3 in the petition filed by them for expunction of adverse remarks made against them."

[emphasis supplied].

36. In Manish Dixit v. State of Rajasthan, this Court held as under:-

"42. .........Such disparaging remarks and the direction to initiate departmental action against him could have a very serious impact on his official career.

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 ensure serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures.Such an opportunity is the basic requirement, for, otherwise the offending remarks would be in violation of the principles of natural justice. In this case such an opportunity was not given to PW 30 (Devendra Kumar Sharma). (State of U.P. v. Mohd. Naim, Jage Ramv. Hans Raj Midha, R.K. Lakshmanan v. A.K.

Srinivasan, Niranjan Patnaik v. Sashibhusan Kar and State of Karnataka v. Registrar General, High Court of Karnataka."

[emphasis supplied)

10) From the foregoing enunciation of law on the subject, it is clear

that normally courts should avoid passing strictures and disparaging

remarks against the Government officials particularly when they are

not before the court and when they have not been afforded an

opportunity of explaining or defending themselves. The adverse

remarks/observations can be made by the courts only where it is

absolutely necessary for disposal of a case and when there is material

on record to suggest complicity of the officers.

11) In the light of the aforesaid position of law, let us now advert to

the facts of the instant case. A perusal of the impugned

judgment/order, particularly the portions of the judgment which are

being assailed by the petitioners, it comes to the fore that the learned

Magistrate has not referred to any material at all in support of his

observations that petitioner No.1 is corrupt of inefficient. There was

no material before the learned Magistrate to observe that the

petitioners were complicit or negligent which ultimately led to the

delayed filing of the complaint. In fact, what comes to the fore from

the record is that the sample was lifted from the business premises of

the respondent No.1 on 12.08.2014 . It was sent to the Food Analyst,

Srinagar, on the very next day. The Food Analyst, Srinagar, vide his

report dated 20.10.2014, opined that the sample is of standard quality.

Thereafter the Designated Officer decided to send the sample to

laboratory at Kolkata for re-analysis. Ultimately, the report dated

17.02.2015 was received from the said laboratory terming the sample

as 'unsafe and misbranded'. Though the letter for sanction of

prosecution bears the date 29.01.2015 but the same appears to be a

typographical error because the sanction letter bears reference to

report of Central Food Laboratory, Kolkata, dated 17.02.2015 and it

also bears reference to certain other letters dated 12.03.2015 and

21.11.2015. It seems that the sanction letter has been issued on

29.01.2016 and not on 29.01.2015. The complaint before the trial

court was filed on 08.03.2016. Therefore, the material on record

clearly suggests that there has been no laxity or negligence on the

part of petitioners in launching the prosecution against the

respondents. Thus, the observations of the learned trial Magistrate that

petitioners have colluded with respondents and that they have been

negligent in filing the complaint beyond the prescribed period of

limitation, are without any basis.

12) A perusal of the record of the case reveals that the castigating

remarks passed by the Ld. Magistrate were not at all necessary for the

decision of the case. It seems that the Ld. Magistrate has, on the basis

of the pre-conceived notions, proceeded to pass adverse remarks

against the petitioners without there being anything on record to

support the same. The Ld. Magistrate in doing so has crossed the

limits of sobriety and moderation which is expected of a judicial

officer. Making of sweeping remarks relating to corruption and

inefficiency against government officials without any basis, tends to

lower down the morale and confidence of these officials which in turn

has an adverse impact on functioning of the investigating and

prosecuting agencies. The courts are well advised to avoid making

such remarks while passing their orders/judgments.

13) The remarks passed by the Ld. Magistrate against the

petitioners have serious adverse consequences upon their service

careers. The same could not be done without at least affording an

opportunity of hearing to them. The Ld. Magistrate has, thus, failed to

exercise judicial restraint and he has also failed to adhere to the

principles of natural justice. The remarks passed by the Ld.

Magistrate, against the petitioners, therefore, deserve to be expunged.

The order of imposition of costs against the petitioners as well the

direction for holding of enquiry against them is also unsustainable in

law.

14) For the foregoing reasons, the petition is allowed and the

remarks and observations made by the learned Magistrate in the

impugned judgment/order against the petitioners are directed to be

expunged and the direction regarding holding of departmental enquiry

against the petitioners and imposition of costs upon them is also set

aside.

15) The trial court record along with a copy of this judgment be

sent back.

(Sanjay Dhar) Judge Srinagar 21.12.2021 "Bhat Altaf, PS"

                                              Whether the order is speaking:     Yes/No
                                              Whether the order is reportable:   Yes/No




MOHAMMAD ALTAF BHAT
2021.12.21 14:31
I attest to the accuracy and
integrity of this document