Madhya Pradesh High Court
Sunil Khemariya vs The State Of Madhya Pradesh on 28 October, 2025
1 W.P.No.26895/2024
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ASHISH SHROTI
WRIT PETITION No. 26895 of 2024
SUNIL KHEMARIYA
Versus
STATE OF MADHYA PRADESH AND OTHERS
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Appearance:
Shri Arun Katare, Advocate for the petitioner.
Shri N.K.Gupta- GA for the respondents/State.
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RESERVED ON: 08/10/2025
ORDER PASSED ON: 28/10/2025
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O R D E R
1. The petitioner has filed the instant writ petition praying for following
relief:
"(i) That, the present petition filed by the petitioner may kindly
be allowed;
(ii) That, the adverse remark made in the judgment Annexure
P/1 in Session Case No. 100375/2015 dated 15/7/2022 in para
36 and 59 may kindly be directed to be expunged.
(iii) That, the cost of the litigation may also be awarded.
(iv) Any other relief which this Hon'ble Court deem fit in the
facts and circumstances of the case may kindly be granted to
the petitioner."
2. The petitioner, at the relevant time, was holding the post of Inspector
and was posted at Gohad, District Bhind. He was the investigating officer in
relation to Crime No.110/2015 registered at the said Police Station for
offences punishable under Section 147, 148, 294, 323, 325, 307, 302 read
with Section 149 of IPC and Section 25, 27 of Arms Act. After
investigation, the matter was tried by the Court of First Additional Sessions
Judge, Gohad, District Bhind in Sessions Case No.100375 of 2015 and was
finally decided vide judgment, dated 15.07.2022 (Annexure P/1). The
accused persons were convicted and sentenced vide said judgment.
3. The petitioner, being the investigation officer of the case, was
examined as PW-19 in the aforesaid case. The learned Trial Judge, in para
36 of the judgment, found certain lapses on the part of petitioner during
investigation. The finding recorded by learned Trial Judge in para 36 are as
under:
"36. सनल खमर य अ०स०-19 न अपन पत प कण क कड क-18 म स क
ककय ह कक अभ#यक ल म द जब क ई गई लठ+, जजस जब पतक प०प०-6
क अनस जब ककय गय ह, प ख.न लग ह/न क उललख नह ह औ म3क प
सलबद ककय जन क # उललख नह ह। इस सक न कड क-19 म यह स क
ककय ह कक व चन क द3 न उस फर यद कल भसह, घयल मननश, म न
अनय सकगण न ककस # अभ#यक क द कट? पय/ग कन ह/न नह ब य
थ, लककन पकण क व चन म अभ#यक #न भसह स 315 ब/ क कट? जब
पतक प०प०-21 क अनस जब ककय गय ह। उक लप ह अनसधन क
कयB ह म घ/ लप ह ह औ इस घ/ लप ह क भलय थन प# सनल
खमर य , ज/ कक एक अन# कमचB थ औ उनक द ह अभ#यक #न भसह क/
गगफ ककय गय थ, लककन उनक द जनबझ . क #न भसह स घ?न म पयक
315 ब/ क मउज बदक . क/ जब न क हय अपन अधनसथ उपतन कक जज
भसह यद क/ पकण क व चन कछ समय क भलय दक जनबझ . क अभ#यक #न
भसह स 315 ब/ क दश कट? जब क य गय ह, जबकक व चन अगधक सनल
खमर य क/ इस थय क जन थ कक घ?न म क/ई # 315 ब/ क दश कट? क
उपय/ग नह हआह।"
4. Based upon the aforesaid finding, the learned Trial Judge, in para 59
of the judgment, forwarded a copy of judgment to Inspector General of
Police with direction to punish him for the said lapses and inform the Court.
Para 59 of the judgment reads as under:
"59-पकण म अनसधन क द3 न व चन अगधक सनल खमर य अ0 स0-19
तकलन तन कक थन ग/हद द ब गई घ/ लप ह , जजस तनणय B क
कड क-36 म उललखख ककय गय ह, क सबध म व चन म ब गई घ/
लप ह क भलय दजM क हय इस नययलय क/ सग. च ककय जन ह तनणय B क
पत पभलस महतन कक, चबल Nज ग भलय क/ पत क सथ तनणय
B क पत पवP क
जय A "
5. It is gathered from the return filed by respondents that in compliance
with the directions issued by learned Trial Court, S.P. Bhind conducted a
preliminary enquiry through SDOP Gohad wherein the negligence was
found to have been committed by the petitioner. Based upon the preliminary
enquiry report, a charge sheet was issued to petitioner vide memo, dated
25.07.2024, (Annexure R/1). Pertinently, alongwith petitioner, the joint
enquiry was commenced against one Mr. Jai Singh Yadav, Sub-Inspector
posted in Gohad Police Station at the time of incident. It is stated in the
return that the charge sheet was served to petitioner on 17.08.2024. The
enquiry was pending at the stage of reply to charge sheet by petitioner.
6. Challenging the remarks made by learned Trial Judge in para 36 and
directions issued in para 59 of the judgment, the learned counsel for the
petitioner submitted that since the petitioner was not given opportunity of
hearing, the aforesaid finding/direction is without jurisdiction. It is his
submission that the learned Trial Judge was not competent to make any
adverse comment/direction behind the back of the petitioner. In support of
his submissions, he placed reliance upon Apex Court judgment rendered in
the matter of 'K', a Judicial Officer reported in (2001)3 SCC 54 and State
of U.P. vs. Mohammad Nain reported in AIR 1964 SC 703. He also relied
upon this Courts judgments rendered in the case of Munnilal Dhoby vs.
State of M.P. & ors. passed in W.P. No.1365/2011, Sunil Khemariya vs.
State of M.P. & ors. passed in W.P. No.13916/2024, and Sunil Khemariya
vs. State of M.P. & ors. passed in M.Cr.C. No.61267/2022.
7. On the other hand, learned counsel for respondents supported the
observations/directions made by learned Trial Judge and submitted that the
petitioner himself was the witness in the trial and therefore, he cannot say
that he was not heard. It is his submission that the petitioner was duly cross-
examined during trial and, therefore, he had full opportunity to explain his
conduct during Trial. The learned counsel also submitted that pursuant to
the directions issued by Trial Judge, preliminary enquiry was conducted
wherein the petitioner was found prima facie guilty and accordingly a
charge sheet has already been served on him. He submitted that the
petitioner suppressed factum of service of charge sheet in the writ petition.
He prayed for dismissal of writ petition.
8. Heard the arguments and perused the records.
9. The challenge to finding recorded by learned Trial Judge in para 36
and the directions issued in para 59 of his judgment has been made
primarily on the ground that the learned Judge was not competent to give
such finding/direction without hearing the petitioner.
10. Before adverting to the facts of the case, it is profitable to refer to the
legal position as pronounced by Apex Court in this regard. In the case of
Mohammad Nain (supra), the Apex Court was dealing with the SLP filed
by State of U.P. wherein the learned Judge while noting certain lapses on the
part of Police Officer (respondent therein) also made certain general
observations against the entire Police Department. Dealing with this
situation, the Apex Court held in para 11 as under:
"11. The last question is, is the present case a case of an
exceptional nature in which the learned Judge should have
exercised his inherent jurisdiction under Section 561-A CrPC in
respect of the observations complained of by the State
Government? 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 any body, 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."
11. The Apex Court expunged the remarks made against the entire Police
Department of the State on the ground that the same were not necessary for
the case and the remarks made were wholly unwarranted. It was further held
that no material was referred to support impugned remarks. Pertinently, the
Apex Court justified the remarks made by learned Judge against the Police
Officer/respondent therein.
12. The judgment rendered by Apex Court in the case of 'K' a Judicial
Officer (supra) deals with the issue extensively. The Court held that "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 in 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. After adverting to various authorities, the Apex Court held in para
12 as under:
"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 (see Mohd.
Naim[AIR 1964 SC 703 : (1964) 2 SCR 363 : (1964) 1 Cri LJ
549] )."
13. Thus, the Apex Court upheld the power of the Court to make remarks
or observations, but subject to satisfaction of following conditions:
i. whether the party whose conduct is in question is before
the court or has an opportunity of explaining or
defending himself;
ii whether there is evidence on record bearing on that
conduct justifying the remarks; and
iii. whether it is necessary for the decision of the case, as an
integral part thereof, to animadvert on that conduct.
14. The judgments of coordinate benches of this Court are primarily
based upon aforesaid pronouncement of Apex Court in the case of 'K' a
Judicial Officer (supra).
15. From the principle of law laid down by Apex Court, if the finding/
observations made by learned Trial Judge in para 36 of his judgment are
seen, it is gathered that such finding is the integral part of appreciation of
the statement of petitioner himself and was necessary for decision of the
case. It cannot be said that such finding/observations were foreign to the lis
and out of context. The learned Trial Judge noted certain discrepancies in
the investigation and thus rendered the findings in para 36. Thus, it cannot
be said the finding/observations made by learned Trial Judge in para 36
were unjustified and/or otherwise unsustainable in law.
16. If the submission made by the petitioner is to be accepted, the learned
Trial Judge, even finding lapses in investigation, would be helpless in
reporting the same to the Department.
17. Coming on to the directions issued by the learned Trial Judge in para
59 of the judgment, it is gathered that Inspector General of Police was
directed to punish the petitioner and report back to the Judge. Admittedly,
the petitioner was not given any opportunity of hearing before issuance of
this direction. The submission of respondents' counsel is that the petitioner
himself was IO and was examined as prosecution witness and as such he
cannot say that he was not heard. This submission cannot be accepted
inasmuch as the petitioner was examined as prosecution witness in support
of prosecution case. He was not heard on the issue of lapses in the
investigation done by him. Thus, the directions issued by learned Trial
Judge in para 59 could not have been issued.
18. This is also because taking disciplinary action against the petitioner is
exclusively within the domain of his employer and the learned Trial Judge
had no such power or jurisdiction. The mandate issued by learned Trial
Judge took away the discretion of employer. Thus, at best, in view of
observations made by him in para 36, the learned Trial Judge could have
asked the employer to take action in the matter in accordance with law.
19. In view of discussion made above, the observations made by learned
Trial Judge in para 36 of his judgment are upheld and the directions issued
in para 59 are quashed. It is clarified that the observations made by learned
Trial Judge in para 36 are only his prima facie opinion and the action to be
taken by disciplinary authority should be independent and should not be
influenced by the observations made by learned Trial Judge.
20. With the aforesaid, the petition stands disposed off.
(ASHISH SHROTI)
JUDGE
JPS/-
