Sunil Khemariya vs The State Of Madhya Pradesh
2023 Latest Caselaw 6722 MP

                                                       1
                 IN         THE       HIGH COURT OF MADHYA PRADESH
                                            AT GWALIOR
                                              BEFORE
                           HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                                           ON THE 25 th OF APRIL, 2023
                                   MISC. CRIMINAL CASE No. 61264 of 2022

               BETWEEN:-
               SUNIL KHEMARIYA S/O SHRI ASHOK KHEMARIYA,
               AGED ABOUT 60 YEARS, OCCUPATION: SERVICE R/O
               HUJRATPUL NAYA BAJAR GWALIOR (MADHYA
               PRADESH)

                                                                                    .....PETITIONER
               (BY SHRI ARUN KATARE- ADVOCATE)

               AND
               1.          THE STATE OF MADHYA PRADESH THROUGH
                           THE    PRINCIPAL  SECRETARY    HOME
                           DEPARTMENT, VALLABH BHAWAN BHOPAL
                           (MADHYA PRADESH)

               2.          THE SUPERINTENDENT              OF   POLICE BHIND
                           (MADHYA PRADESH)

               3.          S.D.O.P. GOHAD BHIND (MADHYA PRADESH)

                                                                                 .....RESPONDENTS
               (BY SHRI ROHIT SHRIVASTAVA- PANEL LAWYER FOR THE STATE)

                           This application coming on for hearing this day, the court passed the
               following:
                                                        ORDER

I.A.No.6812/2023, an application for correction, is allowed for the reasons mentioned therein.

Necessary correction has been carried out before the Court itself. Signature Not Verified Signed by: MADHU Petitioner has filed this petition for expunging adverse remarks passed by SOODAN PRASAD Signing time: 25-04-2023 06:51:46 PM the learned Chief Judicial Magistrate, Distt. Bhind, in judgment dated 27-4-2019

in Criminal Case No. 148/2017.

The petitioner is a police officer who conducted investigation of aforesaid case. In the said judgment, the CJM, Bhind in paragraphs 9, 11 and 13 made certain observations and gave findings against the petitioner. The learned counsel for the petitioner submits that the petitioner had no opportunity to explain his conduct before the said Court. In this regard, learned counsel relied o n AIR 1987 SC 1436 (S.K. Viswambaran Vs E.Koyakunj & Others), (2001) 3 SCC 54 (In the matter of 'K' A Judicial Officer), 2008 (3) M.P.WN SN 30 (Randhir Singh Rahul (Dr.) Vs. State of M.P. ) and the judgment passed by this Court in W.P.No.89/2002 ( Ram Babu Sharma Vs.

State of M.P. & Others) decided on 5.9.2006. It is contended that the following tests are to be satisfied by the Court before making any observation against the police official. The tests are 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. The overall test is that the criticism or observation must be Judicial in nature and should not formally depart from sobriety, moderation and reserve."

Learned Panel Lawyer for the State submits that no interference is warranted by this Court. If police official has not performed his duty in accordance with law, it is open to the competent Court to gave finding in this regard.

Signature Not VerifiedHeard learned counsel for the parties and perused the record. Signed by: MADHU In the present case, the aforesaid factual backdrop makes it clear SOODAN PRASAD Signing time: 25-04-2023 06:51:46 PM

that the petitioner was not a party in the case in which findings are given against him. He was also not afforded any opportunity by the said Court before making remarks. Thus, the test laid down by the Supreme Court in 'K' A Judicial Officer (supra) is not satisfied in the present case. By applying the same test, this Court in W.P.No.89/02 Ram Babu Sharma (supra) expunged the remarks made against the petitioner. I am in agreement with the said view taken by this Court. Thus, the petitioner is entitled to get benefit on the basis of the said judgment.

Resultantly, the adverse remarks made in the impugned judgments against the petitioner are expunged Petition is allowed to the extent indicated above.

(DEEPAK KUMAR AGARWAL) JUDGE ms/-

Signature Not Verified Signed by: MADHU SOODAN PRASAD Signing time: 25-04-2023 06:51:46 PM