Dr. Raghubir Sharan Vs. The State of
Bihar  INSC 58 (14 March 1963)
14/03/1963 SUBBARAO, K.
DAYAL, RAGHUBAR MUDHOLKAR, J.R.
CITATION: 1964 AIR 1 1964 SCR (2) 336
Criminal Trial--Revision application to High
Court for expunging remarks from judgment of Lower Court-Extent of inherent
power of High Court-Jurisdiction when to be exercised Code of Criminal
Procedure (Act V of 1898), s. 561 A.
In a criminal case pending in the court of a
Munsif Magistrate, two accused persons moved a bail application on the ground
of serious illness in jail. The Magistrate called upon the appellant, who was
at that time a Civil Assistant Surgeon and also Superintendent of the Sub-jail,
to submit a medical report. On the report, the Magistrate released the accused
persons on bail but made certain observations against the appellant as a
doctor, which are sought to be expunged. Against the said order, the medical
officer filed a revision petition in the High Court which was dismissed. On appeal
by special leave the appellant's main contention was that the High Court should
have expunged the remarks which would affect the appellant's future official
career. The question for decision in this court was whether in a case where the
judgment has become final, that is to say, when no appeal has been preferred
against the judgment by an aggrieved party, the High Court can expunge any
remarks found therein at the instance of a third party.
Held, (per Mudholkar and Dayal JJ.), that
every High Court as the Highest Court exercising criminal jurisdiction in a 337
state has inherent power to make any order for the purpose of securing the ends
of justice. This power extends to "punition or ordering expunction of
irrelevant passages from a judgment or order of a Subordinate Court and would
be exercised by it in appropriate cases for securing the ends of justice. Being
an extraordinary 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.
The remarks in the present case were not of
such a character, so as to call for the exercise of the extraordinary power of
the High Court under s. 561 A. The appeal, therefore, must fail.
The State of U. P. v. J. N. Bagga, Crl. A.
No. 122/1959 decided on Jan. 16, 1961, In the matter of H. Daly (1927) 1.
L. R. 9 Lahore 269, Panchanan Banerji v.
Upendra Nath, (1926) I. L. R. 49 All. 254; Rogers v. Shrinivas Gopal Kewale, I.
L. R. (1940) Bom. 415, Emperor v. O. Dunn, 922) 44 All. 401, Emperor v.
Sidaramaya, (1917) 19 Bom. L R. 912 and State v. Nilkanth Shripad Bhave, 1. L.
R. (1954) Bom.
148, referred to.
Per Subba Rao J. In the present case the
following principles emerge : (1) A judgment of a criminal court is final; it
can be set aside or modified only in the manner prescribed by law.. (2)
Everyjudge, whatever may be his rank in the hierarchy, must have an unrestricted
right to express his views in any matter before him without fear or favour.
(3) There is a corelative and self imposed
duty in a judge not to make irrelevant remarks or observations without any
foundation, specially in the case of witnesses or parties not before him,
affecting their character or reputation. (4) An appellate court has
jurisdiction to judicially correct such remarks, but it will do so only in
exceptional cases where such remarks would cause irrevocable harm to a witness
or a party not before it.
Emperor v. Nazir Ahmad, A. I. R. 1945 P. C.
18, Jairan Das v. Emperor, (1945) 47 Bom. L. R. 634 (P. C.), Panchanan Banerji
v. Upendranath Bhattacharji, (1926) 1. L. R. 49 All.
254. In the matter of Daly, (1927) I. L. R. 9
Lahore 269 Rogers P. J. v. Shrinivas Gopat 1. L. R. 1940 Bom. 415, Bhutnath
Khanwas v. Dasrathi Das, A. I. R. 1941 Pat. 544, In re Public Prosecutor, A. 1.
P. 1944 Mad. 614, referred to.
State v. Nilkanth Shripad, 1. L. R. 1954 Bom.
148, held applicable.
338 Held further, that a judicial officer
does not surrender his judgment in medical matters to the ipsi dixit of the
In this case the observation of the
Magistrate was neither irrelevant nor without foundation and the appellate
court was right in not treating it as an exceptional case and judicially
correct the said observations. Besides, it is not such an exceptional case
which calls for the interference of this court under Art. 136 of the
CRIMINAL APPELLATE JURISDICTION Criminal
Appeal No. 87 of 1961.
Appeal by special leave from the judgment and
order dated October 7, 1960 of the Patna High Court in Criminal Revision No.
460 of 1960.
B. B. Tawakley, Mrs. E. Udayaratnam and R. C.
Prasad, for the appellant.
D. P. Singh, M. K. Ramamurthi, R. K. Gary and
S. C. Agarwal, for respondent No. 1.
1963. March 14. Subba Rao J. delivered his
The judgment of Dayal and Mudholkar JJ., was
delivered by Mudholkar J.
SUBBA RAO J.-I have perused the judgment
prepared by my learned brother Mudholkar J. I agree that the appeal should be
dismissed. -but I would prefer to give my own reasons for doing so.
The facts giving rise to this appeal are
simple. The appellant is a medical practitioner and during the year 1959 he was
acting as Deputy Superintendent, Jahanabad SubDivisional Hospital and
Superintendent, Sub Jail, Jahanabad.
A criminal case was pending before the Court
of the MunsifMagistrate, First Class. Jahanabad, and the two accused therein
filed a petition in that Court for releasing them on bail. On October 3, 1959,
the learned Munsif-Magistrate called for a report from the said medical officer
of his opinion on the health of the said accused. The said officer examined the
339 accused and sent the following report to the MunsifMagistrate "Examined
accused Ramsewak Dusadh and Ramdeo Dusadh of village Havellipur, P. S. Ghosi,
district Gaya and found that both of them are suffering from Hookworm
infections and are anaemic." On October 19, 1959 the learned Munsif
-Magistrate made the following order granting bail to the said accused :
"In view of the order dated 3-10-1959 a
petition signed by Superintendent, Sub-jail, Jahanabad, is received. In this
petition it is mentioned that the accused persons are suffering from Hookworm
infection and hence they are anaemic. From the petition it appears that its
body portion has been written by somebody else and it is simply signed by Mr.
R. Saran, Superintendent. It is curious to note that no actual examination
report has been attached with this petition. It is an extreme case of
carelessness on the part of the Doctor concerned. He ought to have realised
that a judicial order would be passed on his actual report and not on his
Hence let the copy of this petition and order
sheet he forwarded to the Civil Surgeon, Gaya, for information. It is argued by
the lawyer appearing on behalf of the accused that these accused-, persons are
poor and would not be in a position to defend themselves, in case they would
not be allowed bail. I therefore on considering their poor circumstances and
ill health allow themto remain on bail on Rs.
500/with one surety for the like
amount." After making some infructuous attempts through administrative
channels to get the said remarks 340 against him expunged, the said medical
officer filed a revision petition under ss. 435 and 439 of the Code of Criminal
Procedure against the said order in the High Court of judicature at Patna. The
High Court dismissed the revision petition. Hence the appeal.
Learned counsel for the appellant contended
that the remarks made by the learned Munsif Magistrate were unjustified and
groundless and that they would affect the appellant's future official career
and, therefore, the High Court should have expunged the said remarks. Learned
counsel for the respondents, apart from justifying the remarks, contended that
the High Court had no jurisdiction to expunge the remarks from, the judgment
which had become final.
At the outset I would like to make it clear
that I am not expressing my opinion on the question whether the High Court in
an appeal or a revision filed therein by an aggrieved party can expunge the
remarks made by the trial Court in its judgment in disposing of the said appeal
or revision. I am only addressing myself to the limited question whether in a
case where the judgment has become final, that is to say, when no appeal has
been preferred against the judgment by an aggrieved party, the High Court can
expunge any remarks found therein at the instance of a third party. I am also
confining the scope of my judgment to the power of an appellate Court to
expunge remarks in a criminal case.
The only power on which reliance is placed by
learned counsel for the appellant is that contained in s. 561A of the Code of
Criminal Procedure, which reads :
"Nothing in this Code shall be deemed to
limit or affect the inherent power of the High Court to make such orders as may
be necessary to give 341 effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of
justice." The Judicial Committee in two decisions, viz., Emperor v.
Nazir Ahmad (1), and Jairam Das v. Emperor
(2), had taken the view that the said section gives no new powers but only
provides that those which the Court already inherently possesses shall be
preserved What is the scope of this inherent power ? Can it be invoked in a
case where the judgment has become final to expunge the remarks made therein ?
By expunging remarks what does the appellate Court do ? Substantially it strikes
out a part of the judgment. Sometimes the part struck out may be an integral
part of the judgment, that is to say, the conclusion may not flow in the
absence of the part deleted. On some occasions remarks made by a Court on the
credibility of a witness, however exaggerated they may be, may be the sole
reason for not believing that witness. There may also be other occasions when
the remarks may be so irrelevant that they may not have any direct impact on
the judgment, but such instances will be very rare. Whatever may be the decree
of impact, the result of expunging remarks from a judgment is that it derogates
from its finality. There is no provision in the Code of Criminal Procedure
which enables an appellate Court in a case where the order of a lower Court has
become final between the State and the accused to modify the said order by
deleting or striking out some of the observations found therein. Does s. 561 A
of the said Code confer such a power ? The conflicting views on this question
are reflected in some of the judgments cited at the Bar. Sulaiman j. in
Panchanan Banerji v. Upendra Nath Bhattwharji (3), holds that s. 561A of the
Code of Criminal Procedure, which was added in 1923, confers such a power and
(1) A. 1. R. 1945 P. C. 18, 22.
(2) (1945) 47 Bom. L. R. 634. (P.C.) (3)
(1926) 1. L. R. 49 All, 254, 256.
342 he does not see any reason why such an
inherent power should not comprise a power to order a deletion of passages
which are either irrelevant or inadmissible and which adversely affect the
character of persons before the Court. Tek Chand J. In the matter of Daly (1),
also concedes such a power to an appellate Court. Beaumont C. J. in Rogers, P.
J. v. Shrinivas Gopal (2), remarks tersely that no Court can claim inherent
power to alter the judgment of another Court.
Dhavle J. in Bhutnath Khawas v. Dasrathi Das
(3), agrees with Beaumont C.J. in holding that no Court can claim inherent
power to alter the judgment of another Court. The Madras High Court in In re
Public Prosecutor (4), holds that an appellate Court has power to expunge
remarks in a judgment in a suitable case. The Full Bench of the Bombay High
Court in State v. Nilkanth Shripad (5), posed the question thus : "The
important question that arises is whether a superior Court has inherent power
to alter the record, as it were, by changing or altering a judgment which has
already been delivered and has become final as far as that particular Court is
concerned", and expressed its view as follows :
"A judgment of a lower Court may be wrong;
it may even be perverse The proper way of
attack that judgment is by bringing it under the scrutiny of the superior Court
and getting the judgment of the lower Court judicially
In our opinion, the inherent power that the
High Court possesses is, in proper cases, even though no appeal or revision may
be preferred to this Court to judicially correct the observations of the lower
Court by pointing out that the observations made by the Magistrate were not
justified or were without any foundation or were wholly wrong or
improper." With respect, I agree with the conclusion arrived (1) (1927) 1.
L. R. 9 Lah, 269, 275.
(2) I. L.R. 1940 Bom. 415, 418, (3) A. 1. R,
1941 Pat. 544.
(4) A.I.R. 1944 Mad, 614.
(5) I.L.R. 1954 Bom 148,157, 160.
343 at by the Bombay High Court. This
judgment, if I may say so with respect, reconciles the doctrine of finality of
a judgment and the necessity to give relief in an appropriate case to a person
who is not a party to a proceeding, if uncharitable, unmerited and irrelevant
remarks are made against him without any foundation whatsoever. The other
decisions taking the contrary view infringe the fundamental principle of
jurisprudence that a judgment made by a Court, however inferior it may be in
the hierarchy, is final and it can only be modified in the manner prescribed by
the law governing such procedure. All the learned judges construing the scope
of s. 561 A of the Code of Criminal Procedure have agreed on one question
namely, to preserve the independence of judicial officers so that they may
express their views without fear or favour. The observations made by some of
the Judges are apposite in this context. Tek Chand J. observed in In the matter
of Daly (1) :
"It is of the utmost importance to the
administration of Justice that Courts should be allowed to perform their
functions freely and fearlessly and without undue interference by this
Court." Chagla C. J. in State v. Nilkanth Shripad observed :
"It is very necessary, in order to
maintain the independence of the judiciary, that every Magistrate, however
junior, should feel that he can fearlessly give expression to his own opinion
in the judgment which he delivers. If our Magistrates feel that they ,cannot
frankly and fearlessly deal with matters that come before them and that the
High Court is likely to interfere with their opinions, the independence of the
judiciary might be seriously undermined." I entirely agree with the
remarks. I reiterate that every judicial officer must be free to express his
mind (1927) 1 T.R. 9 Lab, 269, 275.
(2) I.L.R. 1954 Bom. 148, 157, 160, 344 in
the matter of the appreciation of evidence before him.
The phraseology used by a particular judge
depends upon his inherent reaction to falsehood, his comparative command of the
English language and his felicity of expression. There is nothing more
deleterious to the discharge of judicial functions than to create in the mind
of a judge that he should conform to a particular pattern which may, or may not
be, to the liking of the appellate Court. Sometimes he may overstep the mark.
When public interests conflict, the lesser should yield to the larger one. An
unmerited and undeserved insult to a witness may have to be tolerated in the
general interests of preserving the independence of the judiciary. Even so, a
duty is cast upon the judicial officer not to deflect himself from the even
course of justice by making disparaging and undeserving remarks on persons that
appear before him as witnesses or otherwise.
Moderation in expression lends dignity to his
office and imparts greater respect for judiciary. But occasions do arise when a
particular judge, without any justification, may cast aspersions on a witness
or any other person not before him affecting the character of such witness or
person. Such remarks may affect the reputation or even the career of such
person. In my experience I find such cases are very rare. But if it happens, I
agree with the Full Bench of the Bombay High Court that the appellate Court in
a suitable case may judicially correct the observations of the lower Court by
pointing out that the observations made by that Court were not justified or
were without any foundation were wholly wrong or improper. This can be done
under its inherent power preserved under s. 561-A of the Code of Criminal
Procedure. But that power must be exercised only in exceptional cases where the
interest of the Party concerned would irrevocably suffer.
From the aforesaid discussion the following
345 principles emerge : (1) A judgment of a criminal Court is final ; it can be
set aside or modified only in the manner prescribed by law. (2) Every judge,
whatever may be his rank in the hierarchy, must have an unrestricted right to
express his views in any matter before him without fear or favour.
(3) There is a correlative and self-imposed
duty in a judge not to make irrelevant remarks or observations without any
foundation, especially in the case of witnesses or parties not before him,
affecting their character or reputation. (4) An appellate Court has
jurisdiction to judicially correct such remarks, but it will do so only in
exceptional cases where such remarks would cause irrevocable harm to a witness
or a party not before it.
Let me now apply the said principles to the
Here, a bail application was pending before
the Magistrate on the ground that the accused were ill. The Magistrate asked
the medical officer to report on their health. The said officer sent a report
stating that he had examined the accused and that they were suffering from
hookworm infection and were anaemic. In the statement of tile case the
appellant says that he made a clinical examination and also the examination of
the stools of the accused; but he did not send along with his report the result
of his clinical examination showing the particulars of the blood and stool
tests. The learned Munsif-Magistrate pointed out that no actual examination
report was attached to the petition (report) and that it was an extreme case of
carelessness on the part of the doctor concerned. The Magistrate felt that as a
judicial officer he could not accept the mere ipsi dixit of the doctor
unsupported by the results of clinical examination to come to a conclusion one
way or other whether the accused were really so ill as to be let on bail. In
the circumstances, if the Magistrate characterised the act of the medical
officer in not sending the detailed report as 346 an act of extreme
carelessness, can it be said that his inference was such that the appellate
Court should treat it as an exceptional case and judicially correct the said
observations? Indeed, the High Court in its. judgment said:
"The observation of the learned MunsifMagistrate
does not seem to be wholly unjustified The doctor should have given the reasons
for calling the accused person on whose behalf bail petitions were moved as
anaemic." It rightly concluded thus :
"In the circumstances, if the Court said
that the doctor was careless, I do not think that there is any impropriety in
such an observation. It is likely that some other Court may take a different
view of the thing, but that is no ground for upsetting the observations of a
Court. To accept this contention would amount to placing unnecessary fetters on
the discretion of the Court in assessing any witness or any evidence in course
of its judgment or order." With these observations, it dismissed the
Now, the question is whether in such
circumstances this Court in exercise of its powers under Art. 136 of the
Constitution should interfere with the order of the High Court. Is it such an
exceptional case which calls for the interference of this Court? The High Court
in exercise of its discretion, for the reasons given by it, refused to expunge
the remarks. It is certainly not a case meriting the interference of this Court
in its extraordinary jurisdiction.
That apart, I entirely agree with the
observations of the High Court. A judicial officer does not 347 surrendar his
judgment in medical matters to the ipsi dixit of the doctor. The opinion of a
doctor has great weight, provided it is supported by the material on which he
formed the opinion. If he does not disclose the particulars of the clinical
results, how can the Court come to a conclusion that the accused were so ill as
to be released on bail? In the circumstances, the Magistrate said that the
doctor was grossly negligent. It is not possible to say that the said
observation is either irrelevant or without foundation.
In the result, the appeal fails and is
MUDHOLKAR J. In this appeal by special leave
from a judgment of the High Court of Patna the question raised is as to the
powers of the High Court under s. 561-A of the Code of Criminal Procedure in
regard to expunging remarks made in its judgment or order by a court against a
person who is neither a party nor a witness to the proceeding.
The question arises this way. A bail
application was moved in the court of Mr. B. Rai, Munsif Magistrate,Jahanabad
on behalf of two persons who were accused in a criminal case pending in that
court on the ground that they were lying seriously ill in jail. On October 3,
1959 the Magistrate passed an order calling upon the Civil Assistant Surgeon at
that place, who, we are told, is also Superintendent of the Sub-jail to report
whether the accused persons are ill. On October 7, 1959. Mr. Sharan the Civil
Assistant Surgeon, signing as the Superintendent of the Sub-jail submitted the
following report :
"Ref : Copy of order sheet dated
3-10-1959 in G. R. 367/59 Ghosi P. S. case 3 (8)/59.
Sir, Examined accused Ramsewak Dusadh and
Ramdeo Dusadh both sons of Dillan Dusadh of 348 village Havellipur P. S. Ghosi,
district Gaya and found that both of them are suffering from hookworm
infections and are anaemic.
Yours faithfully, Sd/ x x x " The report
was addressed to the Magistrate. On October 19, 1959 he passed his order
releasing the accused persons on bail, in the course of which he made certain
observations which are sought to be expunged. For some obscure reason the learned
magistrate has regarded what is plainly a report to be a 'Petition' and then
blamed Dr. Sharan for not realising that a judicial order could be passed only
on his report and not "his petition". That is not all. He has found
fault with Dr. Sharan because (a) the report appeared to be in the handwriting
of some person other than himself and was only signed by him and (b) "'no
actual examination report was attached with this petition (sic)". For
these reasons he observed in his order : "It is an extreme case of carelessness
on the part of the Doctor concerned" and ordered that a copy of the
'petition' and the order sheet be sent to the Civil Surgeon, Gaya for
The report of Dr. Sharan is couched in the
usual form but if the Magistrate felt any doubt about the matter he could well
have sought to have it cleared by writing to him for particulars. No doubt,
this might have entailed postponement of the case and thus delayed passing an
order. But it would seem that the Magistrate did not really think that the
report was inadequate. For, acting upon it, he in fact released the accused
persons on bail on the very day, that is October 19.
All this is, however, very trivial and is not
a kind of matter which ought ever to have been brought up before this Court. No
doubt the learned 349 Magistrate has said that the doctor was careless and by
forwarding a copy of the order straight to his departmental superior indicated
that he expected action to be taken on the basis of his remarks. But in view of
the fact that the learned Magistrate had in fact acted upon the doctor's report
and had wrongly characterised it as a petition his remarks could not reasonably
have been regarded by the doctor's superiors as being very serious. No harm,
much less any irreparable harm, could therefore be expected to result from
Upon this view we would not have said
But, Mr. D. P. Singh, appearing for the State
of Bihar has raised an objection to the jurisdiction of the High Court under s.
561-A of the Code and since it raises a question of general importance, it is
necessary to deaf with it. That section reads thus :
"Nothing in this Code shall be deemed to
limit or affect the inherent power of the High Court to make such orders as may
be -necessary to give effect to any order under this Code, or to prevent abuse
of the process of any Court or otherwise to secure the ends of justice."
This provision was introduced in the Code when it was extensively amended in
the year 1923. But it does not confer and was not intended to confer any new
powers on the High Courts. The courts exist not only for securing obedience to
the law of the land but also for securing the ends of justice in its widest
sense. All courts, including the High Courts, can exercise such powers as the
laws of the land confer upon them as well as such inherent powers to do justice
as are preserved expressly or are not taken away by a statute. We shall confine
ourselves to the inherent powers of the High Court in criminal cases. Now, s.
561-A says in clear terms that the inherent power of the High Court to do
certain things is 350 preserved and what we have to ascertain is whether the
power to expunge any passage from the judgment of a subordinate court is
inherent in the High Court and must, therefore, be deemed to have been
The power of the High Court to expunge
remarks from the judgment or order of a subordinate court while dealing with an
appeal from that court is not questioned by Mr. Singh.
In fact expunction of remarks was ordered by
this Court in appeal in The State of U. P. v. J. N. Bagga (1), but there is no
discussion in the judgment on the point, as the existence of the power was not
challenged. We are not concerned here with the powers of the appellate court.
The question before us is whether the inherent power of the High Court to
secure the ends of justice embraces the power to expunge passages from the
judgment of a subordinate court which is independent of its statutory powers to
alter, amend or reverse the judgments of subordinate courts in appeals or
revisions before it.
Observations made by a subordinate court in
its judgment or order may very seriously affect, in a given case, only a party
thereto in which event he can, if the observations are irrelevant or
unjustifiable, seek redress by appeal or revision, whichever of the remedies is
available to him at law. But what if a stranger to the proceeding or a lawyer
engaged in the case is affected by the court's remarks of a similar character?
Has he no remedy? Must he suffer the consequences of irrelevant or
unjustifiable remarks of a court though if similar remarks were made against a
party to the proceeding that party is entitled to seek redress? It would be a
travesty of justice if an injured stranger to a proceeding should have to
suffer unheard as a result of unjustifiable and harmful observations made by a
court against him. The case of an injured stranger would be of a kind in (1)
Cr. A. No. 122 of 1959 decided on January 16, 1961.
351 which redress would be possible only if
some court possesses such power and can exercise it to secure the ends of
justice. The question is whether the highest court in a State has and must
always be deemed to have had such power.
The further question is whether the exercise
of such power would involve alteration of a judgment or order and if so whether
that must be deemed to have been permitted by the Code.
Certain cases were cited at the Bar and we
will deal with them in chronological order. The first is In the matter of H.
Daly (1). In that case Tek Chand J., said that the High Court has power to
expunge passages from judgments delivered by itself or by subordinate courts
and its power to do so has been put beyond controversy by the enactment of s.
561-A in the Code of Criminal Procedure. While coming to this conclusion the
learned judge has referred to five decisions of the Chief Court of Lahore and
pointed out that that court claimed the power to expunge remarks in appropriate
It may incidentally be mentioned that he has
also referred to the decision in Panchanan Banerjee v. Upendra Nath (2), in
which it was held that the High Court had inherent power to order deletion of
passages which are either irrelevant or inadmissible and which adversely affect
the character of persons before the Court. It may, however, be mentioned that
that was a case where the learned judge, Suleiman J.
was dealing with an appeal against acquittal
and ordered the expunction of remarks while exercising appellate jurisdic tion
though he has referred in this connection to the inherent powers of the court.
Neither of these decisions, however, contains any discussion upon that point.
Then there is the decision in Rogers v.
Shriniwas Gopal Kawale (3), in which Beaumont C. J.
(1) (1927) I.L.R. 9 Lah, 269.
(2) (1926) I.L.R. 49 All. 254, (3) I.L.R.
(1940) Bom. 415, 352 held that the High Court had no power under s. 561-A to
expunge passages in judgments which have not been brought before it in regular
appeal or revision. There, an application was made under s. 561-A for expunging
certain observations criticising a witness made by the Additional Sessions
judge of Poona in a criminal appeal. Dealing with the application the learned
Chief justice observed :
"It is obvious that, if the jurisdiction
exists, its exercise must place the Court in an anomalous position. The Court
must go though the record of a case in which it is not called upon to act
judicially at the instance of a party who is not aggrieved by the decision, and
it may well be that the Court will have to come to a conclusion upon matters
not in issue in the proceedings." He referred to the decision in Emperor
v. C. Dunn and Emperor v. Sidaramaya (2), in the first of which it was held
that the High Court had no such jurisdiction and in the second it was said that
it was doubtful whether such jurisdiction exists in the High Court. He
expressed disagreement with the view taken in Panchanan Banerjee's case (3) and
Daly's case (4) and observed :
"With all respect to the learned judges
who have taken a different view, I am quite unable to see how section 561A
affects the question.
That section provides that nothing in the
Code shall be deemed to limit or affect the inherent power of the High Court to
make such orders as may be necessary to give effect to any order under the
Code, or to prevent abuse of the process of any Court or otherwise to secure
the ends of justice. So that all that the section does is to preserve the
inherent powers of the High Court without conferring any additional power. In
my opinion no Court can claim (1) (1922) 44 All. 401.
(3) (1926) I.L.R. 49 AD. 254.
(2) (1917) 19 Bom. L.R. 912.
(4) (1927) I.L.R. 9 Lah. 269.
353 inherent power to alter the judgment of
another Court. All powers in appeal and revision are statutory and not inherent
in the superior Court. When once a matter is duly brought before a superior
Court, then no doubt inherent powers may be called in aid to enable the Court
to do complete justice, but the power to bring a matter in appeal or revision
before a superior Court must be conferred by statute or some enactment having
statutory effect." The learned Chief justice observed that the power of
superintendence conferred upon the High Court by s. 224 of the Government of
India Act over Courts subordinate to it does not enable the High Court to
correct a judgment of a subordinate court and pointed out that ss. 435 and 439
P.C. only enable the High Court to satisfy
itself about the correctness, legality or propriety of any finding, sentence or
order of an inferior court or of the regularity of the proceeding before it.
Then he observed :
"When the High Court is hearing an
application in appeal or revision, the whole matter is before it and it can
make any order consequential or incidental to the order under review and in my
opinion, in such a case the Court is entitled to expunge any remarks in the
lower Court's judgment which it thinks ought not to have been made. But it
seems to be impossible to say that expunging passages from a judgment giving
reasons for an order which is not under appeal involves anything consequential
or incidental to the matter in appeal. If the Court thinks that any such
'action is called for, it can itself send for the record and act regularly in
revision." In the end the learned Chief justice held that the decision in
Emperor v. Dunn (1), was right and has not been altered by the introduction of
s. 561-A, (1) (1922) 44 AU. 401.
354 This judgment was partially overruled by
a Full Bench in State v. Nilkanth Shripad Bhave Chagl a C. who delivered the
judgment of the court concurred with the observation of Beaumont C. J.,that no
court can claim inherent power to alter the judgment of another court and after
pointing out that Beaumont C.J., had also said in his judgment that the Court
had inherent jurisdiction to alter the judgment once the matter comes before it
in appeal or revision, said :
"It is difficult to understand, if the
High Court has no inherent jurisdiction to alter the judgment of another Court,
how that jurisdiction arises merely because the matter comes before the High
Court in appeal or revision. Either the Court has inherent jurisdiction or it
has not. If it has inherent jurisdiction, it can be exercised either in appeal
or in revision, or, s. 561-A." The learned Chief Justice then quoted the
further observations of Beaumont C. J., Which we have reproduced earlier and
"It is difficult to understand how the
Court can act regularly in revision if there is no effective order which can be
challenged in revision. Therefore, in our opinion this judgment was correctly
decided to the extent that it laid down that there was no inherent jurisdiction
in a superior Court to alter the judgment of another Court. But to the extent
that this Division Bench laid down that the power to judicially correct the
judgment of a lower Court only arose in appeals and revisions it was not
correctly decided. The power of the High Court judicially to correct any
subordinate judge exists independently of applications which come before it by
way of (1) I.L.R. (1954) Bom.148.
355 appeal or revision. This Court can
judicially correct any subordinate judge in any application made to it which it
can entertain under S. 561-A of the Court." The learned Chief justice then
referred to an unreported decision of the Bombay High Court in which the view
was taken that the Court has jurisdiction to expunge remarks from the judgment
of a lower court although the matter was not before it in appeal or revision
and in which the Court expressed difficulty in appreciating the view taken in
Roger's case (1). Then the learned Chief justice pointed out that be did not
find it easy to understand how if, as was said by Beaumont C. J., the power to
alter the judgment of an inferior 'Court is not an inherent power, it can be brought
in aid as an inherent power provided only the matter is before the High Court,
in what he has called regular revision.
According to the learned Chief Justice in
entertaining an application under s. 561-A "what the High Court should do
is not to expunge remarks but judicially to correct by its judgment the
judgment of the lower Court." We also find it difficult to understand what
Beaumont C.J. meant when he said on the one hand that the if High Court has no
inherent power to alter the judgment of an inferior court and on the other that
when the matter is before the High Court by way of regular revision it can
alter the judgment by exercising its inherent power. Either the High Court has
inherent power to alter a judgment of a subordinate court or it has not. If it
has no inherent power to do so 'the mere fact that a regular proceeding arising
out of the judgment of the subordinate court is before it would make no
difference. For, even then it cannot do anything as its revisional powers under
s. 439 Cr. P. C. do not enable it to expunge remarks. Yet, according to the
learned Chief justice, the High Court can then exercise its inherent power. How
it can do so when on the (1) I.L.R. (1940) Rom, 415.
356 earlier statement of the legal position,
it has no such inherent power, is not easy to follow.
We also feel some difficulty in understanding
the judgment of Chagla C.J. when he says that by entertaining an application
under s. 561 -A the High Court can judicially correct the judgment of a
subordinate court but at the same time not expunge remarks therein as doing so
would be altering the judgment of the subordinate court. If the alteration or
amendment of the judgment or order of a subordinate court is not the necessary
consequence of the judicial correction of such judgment or order we fail to see
how removing from it a passage which is not relevant to the controversy decided
by the judgment would amount to such alteration. A judgment consists of the
verdict of the court and its reasons bearing on it. If a superior court
supersedes or alters or amends either of these it will be reversing, altering
or amending the judgment. But if a document embodying the judgment contains
besides the court's verdict and reasons there for, any additional matter which
is unrelated to either of these two components of the judgment it cannot
properly be regarded as a part of the judgment merely because it is contained
in the same document.
By including within the judgment irrelevant
matter the court cannot make them an integral part of the judgment. The power
to delete or order the deletion of such matter for securing the ends of justice
must be deemed to inhere in the High Court.
The learned Chief justice seems to accept the
position that under s. 561-A an application can be made to the High Court
complaining of injurious remarks by a subordinate court on the ground that they
are unjustifiable or irrelevant and that such an application becomes a judicial
proceeding before the High Court. He also accepts that the High Court can thereupon
correct the judgment of the subordinate 357 court in appropriate circumstances.
If the High court has power in such a proceeding to correct the judgment or
order of a subordinate court how exactly and when does it exercise it ? Earlier
in his judgment the learned Chief justice has said :
"A judgment of a lower court may be
wrong; it may even be perverse. The proper way to attack that judgment is by
bringing it under the scrutiny of the superior Court and getting the judgment
of the lower Court judicially corrected. But is it proper for the superior
Court to alter or amend the judgment which has already been delivered ? In our
opinion, the inherent power that the High Court possesses is, in proper cases,
even though no appeal or revision may be preferred to this Court, to judicially
correct the observations of the lower Court by pointing out that the observations
'Made by the Magistrate were riot justified or were without any foundation or
were wholly wrong or improper." It may be mentioned that the
Advocate-General who appeared in the case had urged that merely making
observations of this kind or passing strictures on a subordinate court stands
on a different footing from expunging objectionable remarks. The learned Chief
justice observed :
"In our opinion it is not necessary to
express the displeasure of this Court against any observations made by a
Magistrate or by a Sessions judge by expunging the remarks from the judgment
delivered by him. x x x x In our opinion, therefore., it would not be correct
to say that expunging remarks from a judgment or deleting passages from a
judgment constitutes the inherent power of any superior Court and, therefore,
the inherent power of the High Court." 858 The learned Chief justice quite
rightly holds that the High Court has inherent power judicially to correct a
subordinate court even for making harmful remarks against a person who is not a
party to the proceedings. But, according to him, the sole content of this power
consists of expression by the superior court of its displeasure at the
We can discern no principle upon which such a
limitation on the inherent powers of the High Court can be justified.
Moreover, mere expression by the High Court
of its displeasure at the offending observations of a subordinate court cannot
even be regarded as amounting to "judical correction" of the error
committed by such Court. For, despite the disapprobation, the remarks continue
to be there on the record of the subordinate court. The form normally adopted
by a superior court for "judicial correction" of an error of a
subordinate court does not consist of mere expression of its disagreement with
the view taken by the subordinate court but of effacing that error and thus
depriving it of its legal effect. That is precisely what ought to be done with
respect to irrelevant remarks of a subordinate court when they are found to be
unjustifiable and harmful. The appropriate form in which this part of the
judicial process may be carried out would be either by expunging them or
directing them to be expunged so that they would cease to have any effect.
There can be no doubt that the judgment of a
tribunal empowered by law to adjudicate upon and decide any matter affecting
the rights of parties is inviolable unless the law allows it to be questioned
or interfered with. In such a case the judgment can be challenged only and
interfered with only by the specified authority and to the extent permissible
by the express provisions of law. No other court, not even the High Court,
unless expressly permitted by 359 law can entertain a challenge or exercise any
power with respect to a judgment. Its inherent power is not exerciseable for
this purpose because what is made final or inviolable by law is beyond the
purview of such power. But the inviolability which attaches to a judgment must
necessarily be confined to its integral parts, that is the verdict and reasons
there for. It cannot extend to matters which though ostensibly a part of the
judgment are not in reality its integral parts. It is because of this that the
majority of the High Courts hold that they have always had the power to expunge
passages from the judgments of subordinate courts in certain circumstances. In
other words that this power has always been there and can be resorted to for
securing the ends of justice. It is significant to note that despite this,
though the Code was amended materially in 1955 the legislature did not indicate
in s. 561-A or any other provision that this power did not exist or is taken
away. Clearly the High Courts, by expunging remarks from an order or judgment
of a subordinate court, would not in any event be altering it on merits or in
any matter of substance but be only deleting from it matter which being alien
to the matter before the court ought never to have been there.
When such only is the effect of what the High
Court does, can prohibition to this court be inferred from the fact that ss.
423 and 439, which deal with appellate and revisional powers, are silent about
such matters? We are clear that they do not exclude such power. As already
stated, expunction of irrelevant remarks does not amount to the alteration or
amendment of a judgment or an order of a subordinate court. No doubt, the
exercise of such power will have the effect of taking out of the judgment or
order something which was there before and thus in a limited way to
interference with the content of the document embodying the judgment or order.
But bearing in mind the paramount 360 importance of securing the ends of justice
the High Court must be deemed to have such power.
When we speak of the inherent powers of the
High Court of a State we mean the powers which must, by reason of its being the
highest court in the State having general jurisdiction over civil and criminal
courts in the State, inhere in that court. The powers in a sense are an
inalienable attribute of the position it holds with respect to the courts
subordinate to it. These powers are partly administrative and partly judicial.
They are necessarily judicial when they are exercisable with respect to a
judicial order and for securing the ends of Justice. When we speak of ends of
justice we do not use the expression to comprise within it any vague or
nebulous concept of justice, nor even justice in the philosophical sense but
justice according to law, the statute law and the common law. Again, this power
is not exercisable every time the High Court finds that there has been a
miscarriage of justice. For, the procedural laws of the State provide for
correction of most of the errors of subordinate courts which may have resulted
in miscarriage of justice. These errors can be corrected only by resorting to
the procedure prescribed by law and not otherwise. Inherent powers are in the
nature of extraordinary powers available only where no express power is
available to the High Court to do a particular thing and where its express
powers do not negative the existence of such inherent power. The further
condition for its exercise, in so far as cases arising out of the exercise by
the. subordinate courts of their criminal jurisdiction are concerned, is that
it must be necessary to resort to it for giving effect to an order under the
Code of Criminal Procedure or for preventing an abuse of the process of the
court or for otherwise securing the ends of justice.
The power to expunge remarks is no doubt an
extraordinary power but nevertheless it does 361 exist for redressing a kind of
grievance for which the statute provides no remedy in express terms. The fact
that the statute recognizes that the High Courts are not confined to the
exercise of powers expressly conferred by it and may continue to exercise their
inherent powers makes three things clear. One, that extraordinary situations
may call for the exercise of extraordinary powers. Second, that the High Courts
have inherent power to secure the ends of justice. Third, that the express
provisions of the Code do not affect that power. The precise powers which
inhere in the High Court are deliberately not defined by s. 561A for good
reason. It is obviously not possible to attempt to define the variety of
circumstances which will call for their exercise. No doubt, this section
confers no new power but it does recognise the general power to do that which
is necessary "to give effect to any order under this Code, or to prevent
abuse of the process of any Court or otherwise to secure the ends of
justice." But then, the statute does not say that the inherent power
recognised is only such as has been exercised in the past either. What it says
is that the High Courts always had such inherent power and that this power has
not been taken away. Whenever in a criminal matter a question arises for
consideration whether in particular circumstances the High Court has power to
make a particular kind of order in the absence of express provision in the Code
or other statute the test to be applied would be whether it is necessary to do
so to give effect to an order under the Code or to prevent the abuse of the
process of the court or otherwise to secure the ends of justice.
When the question arises before the High
Court in any specific case whether to resort to such undefined power it is
essential for it to exercise great caution and circumspection. Thus when it is
moved by an aggrieved party to expunge any passage from 362 the order or
judgment of a subordinate court it must be fully satisfied that the passage
complained of is wholly irrelevant and unjustifiable, that its retention on the
records will cause serious harm to the person to whom it refers and that its
expunction will not affect the reasons for the judgment or order.
This aspect of the matter has been emphasised
by Chagla C. J., in the aforesaid case and we have no doubt that it is very
necessary in order to maintain the independence of the judiciary that every
presiding officer of a criminal court, however junior, should feel that he can
fearlessly give expression to his view in the judgment or order which he
delivers and that no impression should be allowed to be created in the mind of
the presiding officer that the High Court is likely to interfere lightly with
his opinions For, otherwise his independence will be seriously undermined.
To sum up, every High Court as the highest
court exercising criminal jursidiction in a State has inherent power to make
any order 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 and would be exercised by it in appropriate cases for securing the ends
of justice. Being an extraordinary 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.
In the case before us, as we have already
indicated, the remarks are not such as are likely to cause harm to the
appellant nor are such as should cause any harm to him. We, therefore, hold
that 363 this is not a fit case for the exercise of the extraordinary power of
the High Court under s. 561-A. For these reasons we dismiss the appeal.