Jammu & Kashmir High Court

Bharti Thusoo vs Union Territory Of J&K on 26 November, 2021

         HIGH COURT OF JAMMU AND KASHMIR AND LADAKH
                          ATJAMMU

                                                 Reserved on   17.11.2021
                                                 Pronounced on 26.11.2021

                                                 CRM(M) No. 446/2021

Bharti Thusoo
                                                         .....Appellant/Petitioner(s)

                               Through :- Mr. A. P. Singh, Advocate and
                                          Mr. T. R. Wani, Advocate

                         v/s
Union Territory of J&K                                            .....Respondent(s)


                               Through :- Mr. Raman Sharma, AAG

Coram:     HON'BLE MR. JUSTICERAJNESH OSWAL, JUDGE

                                   JUDGMENT

1. The present petition has been filed by the petitioner for expunging

paragraph Nos. 173, 174 and 175 of the judgment dated 22.03.2021 passed

by the Additional Sessions Judge, Anti Corruption, Jammu (hereinafter to

be referred as the trial court) in a charge-sheet, titled, State vs Smt Bharti

Thusoo and others.

2. It is stated that the petitioner figured as one of the accused in the aforesaid

tilted charge sheet and after the conclusion of the trial, learned trial court

vide order dated 22.03.2021 (supra) acquitted the petitioner for commission

of offence under sections 5 (2) of the Prevention of Corruption Act read

with section 120-B RPC. It is stated that while acquitting the petitioner, in

paras 173 to 175 of the judgment, the learned trial court has over reached its

jurisdiction by holding that the degree obtained by the petitioner need not

be treated for promotion purposes of the petitioner.

3. The petitioner has prayed for the expunging of the paragraphs 173 to 175 of

the judgment on the grounds that it seriously affects the petitioner's service

career and further that the said remarks were unrelated to the court's

verdict.

4. Response stands filed by the respondent, in which it is stated that the

accused including the petitioner were acquitted by the learned trial court by

giving them the benefit of doubt and further that the petitioner is estopped

from challenging these recommendations/observations of the trial court.

5. Mr. A. P. Singh, learned counsel for the petitioner has vehemently

submitted that observations/recommendations made by the learned trial

court are required to be expunged as it seriously affects the service career of

the petitioner.

6. Mr. Raman Sharma, learned AAG has vehemently submitted that the

learned trial court has made the observations in the judgment while

acquitting the petitioner by giving her the benefit of doubt and the

petitioner cannot challenge the same.

7. Heard and perused the record.

8. Learned trial court has made certain observations in Paras 173 to 175 of the

judgment after recording acquittal in para 172 of the judgment. Paras 173 to

175 are reproduced as under:

"173. However, in the facts as are established in evidence before the court, before parting with, this court is inclined to observe as:- that gaining knowledge in the field of Agriculture by pursuing the course in any mode either by way of distance education or by attending evening classes or whatever method may be, is not an offence. However, if the person who are already in employment gets a degree without prior permission or without attending college or attending the college without permission during service while

the college is in one state and his/her employment is another state, such persons are certainly not entitled to promotion basis on such degree and even if any person gets promotion based on such degree, is liable to be demoted or imposed with a lesser punishment than the dismissal from service which may be disproportionate.

174. In the present case the M.Sc. Degree issued by the said university Krishi Vishva Vidyalaya Palampur (HP) in favour of the accused No. 1 Smt. Bhari Thusoo has not been denied or disputed by the accused no. 1. This degree pertains to the same period during which period she was posted in the department and shown her presence on duty. It has been clearly established in evidence of the prosecution witnesses that the accused No. 1 had not obtained any permission from his department either at the time of joining service in the Agriculture department or ever thereafter while serving as Jr. Agriculture Assistant nor she has every intimated to the department about the pursuing of M.Sc Degree at Palampur(HP) under which circumstances it cannot be said the said degree has been legally obtained by the accused no. 1. This being so, she has complied the penalty imposed in the departmental enquiry by deposited of the withdrawn salary in the Govt. Treasury and she has not been treated on duty for the period she pursued the M.Sc degree course and her service has been treated afresh from the date of completion of degree but merely doing so it does not mean that the degree which is obtained by illegal means by her be regularized and the benefits of such illegal degree be extended to her.

175. Viewed thus, it is therefore, held that such a degree she may considered for her knowledge purpose but it cannot be treated for promotional purpose and so held ordered accordingly. The case is accordingly disposed of and the file be consigned to the record after due compilation."

9. Before appreciating the contentions of the petitioner, it is apt to take note of

the judgment of the Apex Court in Dr. Raghubir Saran vs State of Bihar

and another, 1964 AIR(SC) 1, in which the Apex Court has held as under:

"30. To sum up, every High Court as the highest Court exercising criminal jurisdiction in a State has inherent power to make any other for the purpose of securing the ends of justice. This power

extends to expunction or ordering expunction of irrelevant passages from a judgment or order of a subordinate Court would be exercised by it in appropriate cases for the securing the ends of justice. Being an extra-ordinary power it will, however, not be pressed in aid except for remedying a flagrant abuse by a subordinate Court of its powers such as by passing comment upon a matter not relevant to the controversy before it and which is unwarranted or is likely to harm or prejudice another."

10. Now, it is to be seen whether the observations made by the trial court have

any relevance to the controversy that was required to be adjudicated upon

by the learned trial court or not.

11. The allegation against the petitioner is that while she was in employment

with the Agriculture Department as Junior Agriculture Assistant, she

obtained her M.Sc Degree from Palampur University without obtaining any

permission from her department and even she was shown to be present on

duty while she was attending the University. The prosecution could not

satisfactorily prove the allegations against the petitioner and as such, the

petitioner was given benefit of doubt. The respondent has not filed any

appeal against the judgment, so after expiry of the statutory period, the

judgment has attained finality. The observations made by the learned trial