Amarjeet vs State
2022 Latest Caselaw 3523 Raj

     HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
                      JODHPUR
              S.B. Criminal Misc(Pet.) No. 2224/2014

Devendra Kumar S/o Sh. Ram Singh, by caste Bishnoi, Resident
of 25, Civil Lines, Bikaner (Raj.), presently posted as Additional
Superintendent      of       Police,      Raisinghnagar,         District:   Sri
Ganganagar.
                                                                  ----Petitioner
                                   Versus
State of Rajasthan.
                                                                ----Respondent
                              Connected With
              S.B. Criminal Misc(Pet.) No. 323/2015
Amarjeet Chawla S/o Shri Ramlubhaya, by caste Arora, aged
about 40 years, at present posted as Station House Officer,
Police Station Bajju District Bikaner.
                                                                  ----Petitioner
                                   Versus
The State of Rajasthan.
                                                                ----Respondent


For Petitioner(s)        :     Mr. Vineet Jain, Sr. Advocate with
                               Mr. Praveen Vyas.
                               Mr. H.R. Chawla.
For Respondent(s)        :     Mr. Sudheer Tak, PP.



           HON'BLE MR. JUSTICE SANDEEP MEHTA

                             JUDGMENT

Date of Pronouncement:                          08/03/2022
Judgment Reserved on:                           14/02/2022



BY THE COURT:

1. These two misc. petitions under Section 482 Cr.P.C. have

been preferred by the petitioners Devendra Kumar (the then

Additional Superintendent of Police, Raisinghnagar, District Sri

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Ganganagar) and Shri Amarjeet Chawla (the then SHO, Police

Station Raisinghnagar, District Sri Ganganagar) being aggrieved of

the Judgment dated 08.09.2014 passed by the learned Additional

Sessions Judge (Special Court, Woman Atrocities and Dowry

Cases), Sri Ganganagar in Sessions Case No.17/2013 (State of

Rajasthan Vs. Jaswinder Singh @ Jassi) whereby, the learned trial

court, made certain adverse remarks against the petitioners and

directed initiation of disciplinary proceedings against them.

The learned Trial Judge, after appreciating the evidence

available on record, rendered the impugned Judgment concluding

that the SHO Shri Amarjeet Chawla and the Additional

Superintendent of Police Shri Devendra Kumar connived with the

accused persons and managed cremation of dead body of Smt.

Mandeep Kaur without the same being subjected to postmortem.

The complainant was kept in dark and was fraudulently induced

not to lodge the FIR. These two police officials did not get the

inquiry under Section 174 Cr.P.C. conducted and also got a

manipulated document (Ex.D/1) prepared by keeping the

complainant in dark which proved that there was a collusion

between the accused and the police officials to convert a case of

murder, plain in simple, into accidental death. It was also held that

both the police officials gave false statements while deposing on

oath. The trial court held that:

"The defence taken by the accused in this case that the death was an accidental is totally unbelievable. The delay of filing FIR is on the part of the police and not the complainant. The complainant had given his signature on ExD1 under this impression that the police will initiate action but since the SHO Police station Anoop Garh PW7 Amar Jeet Chawla and I.O PW6 Devender A.S.P. had connived with the accused to save him, they did not register the FIR immediately and rather forged ExD1 by writing the contents in the favour of the accused and used this document later

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on to justify their malafide action for not getting the post mortem of the dead body."

After concluding so, the learned trial court directed as below:

"Way the accused managed the local police to save himself from this brutal crime, is an glaring example of the misuse of power by the police , for which both the then SHO Police Station Amarjeet Chawala and the then A.S.P. Anoopgarh Devender Kumar deserve to be punished according to law. Both these police officers have tried to save the accused Jaswinder Singh who had committed the murder of his wife. If such police officers are left free with no action against them, then they can be a big threat to the criminal justice system and it will shake the faith of the public at large in the judicial system. A copy of this judgment be sent to D.G.P. Rajasthan police to take departmental action against these two police officers as per law and inform this court about the action taken by him."

The above observations and directions given in the judgment

dated 08.09.2014 are subject matter of challenge in these misc.

petitions under Section 482 Cr.P.C.

2. Shri Vineet Jain, learned Senior Counsel assisted by Shri

Pravin Vyas, Advocate representing the petitioner Devendra Kumar

and Shri H.R. Chawla, learned counsel representing the petitioner

Amarjeet Chawla, placed reliance on the following Supreme Court

judgments:

(i) Manish Dixit & Others vs. State of Rajasthan, reported

in 2001 SCC (Cri) 235; and

(ii) State (Govt. of NCT of Delhi) Vs. Pankaj Chaudhary and

Ors., reported in AIR 2018 SC 5412,

and urged that the observations and directions, referred to supra,

made by the learned trial court in the impugned Judgment, are

totally unjust, arbitrary and unwarranted as the same are contrary

to the correct factual position and were recorded without adhering

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to the principles of natural justice. Shri Jain submitted that

Mandeep Kaur was married to Jaswinder Singh about two years

before the incident. She was living a satisfied and happy married

life. However, unfortunately on 22.08.2012, while she was drawing

water from a diggi, she lost her footing and fell into the water

body and drowned to death. Her father Shri Pooran Singh, wrote

an application (Ex.D/1) mentioning that the family members had

no suspicion regarding the death of Smt. Mandeep Kaur and

submitted the same to the SHO Amarjeet Chawla clearly indicating

that his family did not desire any legal action regarding death of

Smt. Mandeep Kaur. Shri Jain submitted that the FIR with the

allegations of foul play, etc. in the death of Smt. Mandeep Kaur

came to be lodged by her brother Shri Gursharan Singh and not

by Shri Pooran Singh and that too, as late as on 20.10.2012.

Investigation of the case was assigned to Shri Devendra Kumar for

the first time on 24.11.2012 and thus, he had no nexus with the

events which transpired from 22.08.2012 till the file was handed

over to him. Shri Jain and Shri H.R. Chawla submitted that the

castigating remarks made by the trial court and the direction to

initiate disciplinary enquiry against the police officials in the

impugned Judgment are totally unwarranted. The SHO Shri

Amarjeet Chawla, though was posted at the Police Station

Anoopgarh but as he did not receive any report of the incident,

there existed no reason whatsoever to direct institution of

disciplinary proceedings against him for alleged non-performance

of duties. Placing reliance on the ratio of the above two Supreme

Court Judgments, Shri Jain and Shri H.R. Chawla sought

expungement of the adverse remarks drawn against the

petitioners and urged the Court to quash the direction given by

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the learned trial court to initiate disciplinary proceedings against

them.

3. Learned Public Prosecutor, vehemently and fervently opposed

the submissions advanced by the petitioners' counsel and urged

that the findings recorded by the trial court regarding the

petitioners having connived with the accused in order to give them

undue benefit, is based on apropos discussion of the material

available on record. The petitioner will have the opportunity to

raise all the permissible defences in the disciplinary enquiry which

shall be conducted in light of the directions given by the trial court

in the impugned judgment. On these submissions, he sought

affirmation of the directions given by the trial court in the

Judgment dated 08.09.2014.

4. I have given my thoughtful consideration to the submissions

advanced at bar and, have gone through the Judgment dated

08.09.2014 and the material available on record.

5. The cases of the two petitioners are starkly distinguishable.

It is an admitted position that the petitioner Shri Devendra Kumar

was posted as the Additional Superintendent of Police,

Raisinghnagar at the relevant point of time and the file of the case

was assigned to him for the first time on 24.11.2012. The incident

took place within the jurisdiction of Police Station Anoopgarh on

22.08.2012 and therefore, there was no occasion for the petitioner

Devendra Kumar to have had any influence on the proceedings

which unfolded just after the unnatural death of Smt. Mandeep

Kaur. There is no evidence on record to show that Shri Devendra

(6 of 14) [CRLMP-2224/2014]

Kumar was involved in any part of investigation till the file was

assigned to him i.e. on 24.11.2012 which was almost 4 months

after the incident. As per practice being followed by Rajasthan

Police, the supervisory authority of any investigation being

undertaken by the SHO is the Circle Officer i.e. the Dy. S.P.

concerned. The trial court relied on certain portions from the

cross-examination of Shri Devendra Kumar (PW-6) wherein, he

admitted that postmortem of the dead body of Smt. Mandeep

Kaur was not conducted because her family members refused for

the same. This reply of the witness was based on the contents of

the report (Ex.D/1) which he received alongwith the case file and

thus, there was nothing wrong in this reply of the witness. The

conclusions, referred to supra, drawn and the adverse remarks

made by the trial court against the petitioner Devendra Kumar

merely on the basis of this reply to the question put in his cross-

examination, are totally unjustified, unwarranted and contrary to

the material on record.

6. However, so far as the petitioner Amarjeet Chawla is

concerned, he was admittedly posted as SHO at the Police Station

Anoopgarh on the date of the incident. In his statement, he tried

to feign ignorance regarding the incident but the fact remains that

presence of police at the scene of the incident on the day Smt.

Manjeet Kaur died in the water tank, is admitted. Thus, there is a

serious question mark as to why proceedings under Section 174

Cr.P.C. were not undertaken by the SHO despite the fact that a

young woman met unnatural death in her matrimonial home

within a period of two years from her marriage. Thus, the conduct

of the SHO Shri Amarjeet Chawla on these issues definitely

(7 of 14) [CRLMP-2224/2014]

requires inquiry at the departmental level. Rule 66 of The General

Rules (Criminal), 1980 provides that if the trial court finds

something amiss in the conduct of the officer concerned with the

affair, copy of the judgment is required to be sent to the

disciplinary authority for information and follow up action.

7. Hon'ble the Supreme Court considered a similar controversy

in the case of Manish Dixit & Ors. vs. State of Rajasthan

(supra) and held:

"36. This takes us to the appeal filed by one Devendra Kumar Sharma (who was examined in this case as prosecution witness PW.30) complaining of the observations made against him by the trial court as well as the High Court. When he was examined in court he was holding the post of Sub-Registrar, Jaipur. On 9.6.1994 he was holding the post of Tehsildar, Jaipur. (Perhaps in that capacity he was ex-officio Executive Magistrate also). His services were requisitioned by the Investigating Officer for conducting the test identification of jewelleries recovered in this case. When he was examined as prosecution witness for speaking to the said test identification, the Public Prosecutor during the examination-in-chief elicited a few facts from him pertaining to those aspects and the documents prepared in connection therewith were marked through him. When he was cross- examined he was asked about the seal impressions found on the packets which contained the recovered jewelleries. He answered that he did not compare the impression with any other seal. He was then confronted with the memo of seizure (Ext.P.28) and he was asked whether he had recorded the fact therein truly. He answered thus: It might have been correctly recorded in that memo or I may not be able to recollect. After the cross- examination was over the Public Prosecutor did not put a single question in re-examination. This was either because he did not find any need to elicit any explanation from the witness or because the Public Prosecutor was inattentive to the implications regarding the answers elicited by the cross-examiner from that witness.

37. But the trial court came down very harshly against the said witness and made the following castigating observations against him in the judgment:

"The statement of such a responsible officer like Tehsildar opposing the Ferd made by him shows either ex.P-20, 21 and 28 were written wrong or he has made wrong statement before the Court. In any

(8 of 14) [CRLMP-2224/2014]

circumstances, this action is highly unexpectable from the responsible officer of such status. Therefore, I would like to bring to the notice of the State Government that in this regard appropriate action should be taken against him, so that any officer does not make such a false report or does not give false evidence in the Court."

38. When PW-30 noticed the disparaging remarks made against him he moved the High Court under section 482 of the Code to have those remarks expunged. But the Division Bench of the High Court, after dealing with the evidence given by the witness pointed out that even after refreshing his memory the witness did not reconcile with the inconsistencies in his statement with the contents of the documents prepared by him. The Division Bench thereupon made the following observations:

"It is needless to mention that the role of persons who conducted test identification parade is very important. He is expected to take all necessary precautions while conducting test parade. He is also required to depose correctly before the court of law and not to deliberately make vague, confusing, inconsistent and contradictory statements against the contents of the documents prepared and order passed by him. The observations made by the learned trial judge do not amount to abuse of process of law. We therefore, do not find any valid and sufficient reason to expunge the impugned observation/remarks made by the trial court against him. Hence this Cr.Misc. Petition filed under s.482 Cr.P.C. deserve to be dismissed."

39. In our opinion, both the trial court and the High Court should have avoided making such unsavory comments against a witness in such a manner as to entail serious implications on his career, merely because the answers which were extracted from him through cross questions contained contradictions or inconsistencies. It should have been remembered that PW-30 (Devendra Kumar Sharma) was cited by the prosecution and the chief examination was conducted by a Public Prosecutor. Once the witness was cross-

examined the Public Prosecutor had an opportunity under law to put such questions as were necessary for explanation of matters referred to in cross- examination. It is ununderstandable to us why the Public Prosecutor did not put a single question at re- examination stage, at least for the purpose of giving him opportunity to explain such incongruities which fell from his mouth during cross-examination.

                                                 (Emphasis Supplied)




                               (9 of 14)                  [CRLMP-2224/2014]

40. If the trial court felt that some of the answers given by that witness during cross-examination were so inconsistent or contradictory and that such answers per se required judicial castigation the court also had a duty to invoke its powers envisaged in Section 165 of the Evidence Act. The width of the powers of the court to put questions is almost plenary and no party can possibly raise an objection thereto. This can be discerned from the language employed in the first limb of the section. It reads thus:

"165. The Judge may, in order to discover or to obtain proper proof of relevant facts, ask any question he pleases, in any form, at any time, of any witness, or of the parties, about any fact relevant or irrelevant; and may order the production of any document or thing; and neither the parties nor their agents shall be entitled to make any objection to any such question or order, nor, without the leave of the Court, to cross- examine any witness upon any answer given in reply to any such question."

41. This Court has indicated the very wide dimension of the powers of the court under section 165 of the Evidence Act in State of Rajasthan vs. Ani {1997 (6) SCC 162}. We extract the following observations which would amplify the position (SCC p. 166, para 11)

"The said section was framed by lavishly studding it with the word any which could only have been inspired by the legislative intent to confer unbridled power on the trial court to use the power whenever he deems it necessary to elicit truth. Even if any such question crosses into irrelevancy the same would not transgress beyond the contours of powers of the court. This is clear from the words relevant or irrelevant in section 165. Neither of the parties has any right to raise objection to any such question."

42. In the present case when the Public Prosecutor failed to utilize the opportunity afforded by law to ask PW-30 (Devendra Kumar Sharma) such questions as are necessary for explanation of the matters referred to in cross- examination, and when the trial judge also failed to invoke the plenary powers to put such questions as he should have put regarding the answers given in cross-examination it was unfair, and we may say uncharitable to a witness to shower him with judicial reprobations in the judgment. Such disparaging remarks and the direction to initiate departmental action against him could have 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 ensue serious consequences

(10 of 14) [CRLMP-2224/2014]

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. vs. Mohd. Naim {1964 (2) SCR 363}, Ch. Jage Ram vs. Hans Raj Midha {1972 (1) SCC 181}, R.K. Lakshmanan vs. A.K. Srinivasan {1975(2) SCC 466}, Niranjan Patnaik vs. Sashibhusan Kar {1986 (2) SCC 569}, State of Karnataka vs. Registrar General {2000 (5) Scale 504}.

(Emphasis Supplied)

44. It is apposite in this context to extract the following observations made by this Court in Dr. Dilip Kumar Deka v. State of Assam {1996(6) SCC 234}:

"7. We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition to defend themselves. It cannot be gainsaid that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Condemnation of the appellants without giving them an opportunity of being heard was complete negation of the fundamental principle of natural justice.

45. We therefore unhesitatingly allow the appeal filed by PW-30 (Devendra Kumar Sharma) and order expunction of all the disparaging remarks made against him by the trial judge as well the High Court in the judgments impugned before us. The direction to proceed against him departmentally would also stand deleted."

Similar view was taken by Hon'ble the Supreme Court in the

case State (Govt. of NCT of Delhi) Vs. Pankaj Chaudhary

(supra) observing thus:-

"34. Based upon the report of Joint Commissioner of Police (Ex.-DW6/A) and the report of S.K. Gautam, DCP, the High Court made disparaging remarks against the police officials and directed prosecution against the police under Sections 193 and 195 IPC. The police officials were neither party nor summoned by the High Court before making such disparaging remarks and giving directions against them in

(11 of 14) [CRLMP-2224/2014]

the appeal against the conviction. On behalf of the police officials, it is submitted that the conclusions drawn by the High Court are based on mere surmises and presumptions.

The High Court further relied on the Departmental Enquiry Report (Ex.-DW6/A) which was not put to test and the maker of the report was not examined which therefore has no evidentiary value in the eyes of law.

35. 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. In S.K. Viswambaran v. E. Koyakunju and Others (1987) 2 SCC 109, this Court held as under:-

"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 AIR 1964 SC 703, it was held as follows:-

"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

(12 of 14) [CRLMP-2224/2014]

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 Another (1975) 2 SCC 466 and Niranjan Patnaik v. Sashibhusan Kar and Another (1986) 2 SCC 569 (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."

8. As a consequence of the discussion made herein above, the

disparaging remarks made by the learned trial court in the

Judgment dated 08.09.2014 against the petitioners, are totally

unjustified and contrary to record. Hence, the same are expunged.

Furthermore, the finding recorded by the trial court in the

judgment dated 08.09.2014 that the police officials including the

SHO Shri Amarjeet Chawla indulged in misuse of power for giving

benefit to the accused and they deserve to be punished, was

premature, misconceived and unwarranted. Any conclusion in this

regard could only have been drawn by the disciplinary authority

after conducting a proper enquiry. If the impugned findings are

allowed to stand, the disciplinary proceedings would be nothing

but a sheer formality as the disciplinary authority's conclusions

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would definitely be clouded by the findings and scathing remarks

made in the impugned Judgment.

9. Thus, while directing expungement of the adverse remarks

referred to supra, it is hereby ordered that a copy of Judgment

dated 08.09.2014 passed by the Additional Sessions Judge

(Special Court, Woman Atrocities and Dowry Cases), Sri

Ganganagar in Sessions Case No.17/2013 shall be forwarded to

the Director General of Police, State of Rajasthan to consider

initiation of a disciplinary proceeding against the SHO Shri

Amarjeet Chawla in view of the prevailing facts and circumstances

noted above.

This direction is being given as per Rule 66 of the General

Rules (Criminal), 1980 as reiterated in Sub-Clause 6 of Order 35

of the General Rules (Civil and Criminal), 2018 which reads as

below:

"6. District Magistrate and Director General of Police to be informed of Police errors.- When in any Case of which a Court has taken cognizance, the Presiding Officer has occasion to notice any erroneous practice on the part of the Police or has reason to believe that a confession has been elicited by the police form an Accused person by the use of force or undue influence, or that any other grave irregularity has occurred, he shall bring the matter to the notice of the District Magistrate concerned or Inspector General of Police/ Director General of Police. It shall be incumbent on the authority so informed to apprise the Presiding Officer concerned of the action taken by it in the matter."

However, it is made clear that the disciplinary proceedings, if

any, shall be undertaken without being prejudiced by the

observations made in the Judgment of the trial court.

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10. As a result, the misc. petition No.2224/2014 preferred on

behalf of the petitioner Devendra Kumar is accepted and the

adverse remarks made and the direction given to initiate

disciplinary inquiry against him in the judgment dated 08.09.2014

are hereby quashed. The misc. petition No.323/2015 preferred on

behalf of Shri Amarjeet Chawla is disposed of as above. Stay

applications are also disposed of.

11. A copy of this order be placed in each file.

(SANDEEP MEHTA),J 76-Tikam Daiya/-

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