The State of Uttar Pradesh Vs.
Mohammad Naim [1963] INSC 60 (15 March 1963)
15/03/1963 DAS, S.K.
DAS, S.K.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION: 1964 AIR 703 1964 SCR (2) 363
CITATOR INFO:
F 1972 SC1140 (8) R 1975 SC1741 (12) RF 1979
SC 87 (15A) RF 1986 SC 819 (20) E&R 1987 SC 294 (42,48) R 1987 SC1436 (14)
ACT:
High Court-Inherent power in criminal
cases-Remarks in Judgment-Duty of Judges-Expunging remarks--Power of High
Court-State Government, if can apply-Code of Criminal Procedure, 1898 (Act V of
1898), 8. 561-A.
HEADNOTE:
While disposing of a criminal appeal the High
Court directed the issue of a notice to N, the investigating officer, to show
cause why a complaint should not be instituted against him under s. 195, Indian
Penal Code. N appeared and threw himself at the mercy of the Court and asked
for forgiveness.
The High Court accepted the apology
hesitatingly but made the following among other remarks against the police
force.
"(a) if I had felt that with my lone
efforts I could have cleaned this augean stable, which is the police force, I
would not have hesitated to wage this war single handed.
(b) That there is not, a single lawless group
in the whole of the country whose record of crime comes anywhere near the
record of that organised unit which is known as the Indian Police Force.
(c) Where every fish barring perhaps a few
stinks, it is idle to pick out one or two and say that it stinks." The
State applied to the High Court under s. 561-A, Code of Criminal Procedure, for
expunging these remarks from the 364 judgment, but the application was
dismissed on the grounds that the State was not an aggrieved party and had no
locus standi to make the application under s. 561-A and that there were no good
grounds for expunging the remarks from the judgment. On appeal by special leave
from the order of the High Court.
Held, allowing the appeal, that the State
Government was an aggrieved party and was entitled to move the High Court under
s. 561-A for the expunction of the remarks in question. The State Government is
the authority which exercises the executive power of the State, and the police
department is one of its departments through which its power as respects law
and order is exercised. The State Government can be aggrieved by observations
made against its department or officers. The State is a juristic person and is
entitled to move an application under s. 561-A. The Code itself contemplates
the filing of appeals and applications by the State as a party.
Section 561-A did not confer any new power
upon the High Courts but merely preserved their existing inherent powers.
The High Court can, in the exercise of its
inherent jurisdiction, expunge remarks made by it or by a lower court if it be
necessary to do so to prevent an abuse of the process of the Court or otherwise
to Secure the ends of justice. The jurisdiction is of an exceptional nature and
has to be exercised in exceptional cases only.
Jairam Das v. Emperor, A. I. R. (1945) P C.
94 and Emperor v. Nazir Ahmad A. I. R. (1945) P. C. 18, referred to.
Emperor v. Ch. Mohd. Hassan, A. I. R. (1943)
Lah. 298, State v. Chhotey Lal, 1955 A. L. J. 240, Lalit Kumar v. S.
S. Bose, A. 1. R. 1957) All. 398, S. Lal
Singh v. State, A.
1. R. (1959)Punj. 211 Ramsagar Singh v.
Chandrika Singh, A.
I.R. (1961)Pat. 364 and In re Ramaswami, A.
I. R. (1958) Mad. 305, approved.
State v. Nilkanth Shripad Bhave, I. L. R.
1954 Bom. 148, disapproved.
It is a principle of cardinal importance in
the administration of justice that the power, freedom of judges and Magistrates
must be maintained and they must be allowed to perform their functions freely
and fearlessly and without interference by anybody, even by the Supreme Court.
It is equally necessary that in expressing their opinions judges and
Magistrates must 365 be guided by considerations of justice, fair-play and
restraint. judicial pronouncements must be judicial in nature, and should not
normally depart from sobriety, moderation and reserve. The remarks in the
judgment in respect of the entire police force of the State were not justified
on the facts of the case, nor were they necessary for the disposal of the case
and should have been expunged.
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 81 of 1962.
Appeal by special leave from the judgment and
order dated October 23, 1961 of the Allahabad High Court (Lucknow Bench) at
Lucknow in Criminal Misc. Case No. 348/1961.
C. B. Agarwala, G. C. Mathur, Shankar Sahai
and C. P. Lal, for the appellant.
J. P. Goyal for the Hon'ble Chief,, justice
and his companion judges of the Allahabad High Court (on notice).
1963. March 15. The judgment of the court was
delivered by S. K. DAS J.-This is an appeal by special leave, and it Presents
some unusual features. The short facts are these.
The Additional Sessions judge of Hardoi in
the State of Uttar Pradesh tried Zafar Ali Khan and three other persons on
charges under ss. 452 and 307 read with s. 34, Indian Penal Code. The case
against the aforesaid accused persons started on a first information report
lodged at a police station called Shahabad, purporting to have been so lodged
at about 3.30 A. M. by one Farasat Ali Khan on the night between the 7th and
8th November, 1958. The case was investigated by one Mohammad Naim who was then
the Station Officer of Shahabad police station. The learned Additional Sessions
judge convicted the accused persons though he found, 366 on the evidence given
in the case, that it was more probable that the first information was lodged at
the police station at about 7 or 8 A.m. rather than at 3.30 A. M. From the
conviction and sentences passed by the Additional Sessions judge there was an
appeal to the High Court at Allahabad (Lucknow Bench). This appeal was heard by
Mulla J. He found that Mohammad Naim had dressed' up a totally unbelievable
case which destroyed the evidentiary value of the statements of Farasat Ali and
his wife, Ummati Begum, two of the principal witnesses for the prosecution. The
Learned judge allowed the appeal and set aside the conviction and sentences of
the four appellants before him. The learned judge further observed in his
judgment:
"There is ample evidence to prove that
the first information report in this case was not lodged at 3.30 A. M. This is
also the finding of trial court. The time noted in the first information report
is, therefore, a fictitious time and a fabrication has been made in the public
records. I, therefore, direct the office to issue a notice to Sri Mohammad Naim
as to why a complaint should not be instituted against him by this court under
section 195 I.
P. Code." In pursuance of the direction
given by the learned Judge, Mohammad Naim was given a notice to show cause why
a complaint for an offence under s. 195 Indian Penal Code should not be made
against him for fabricating the first information report in respect of the time
at which it was said to have been lodged. Mohammad Naim appeared before the
learned judge and threw himself at the mercy of the court and asked for
forgiveness. The learned Judge dealt with the Matter in Cr. Mis. Case No. 87
1961. He accepted the apology of Mohammad Naim, but said that he did so very
hesitatingly. In the course of his order accepting 367 the apology of Mohammad
Naim he made certain observations.
We may now quote those observations :"I issued
the notice because I want to clean the public administration as for as possible
but an individual's efforts cannot go very far. If I had felt that with my lone
efforts I could have cleaned this auge an stable, which is the police force, I
would not have hesitated to wage this war single-handed. I am on the verge of
retirement and taking such steps for two months or three months more would not
make any difference to the constitution and the character of the police
force...... Somehow the police force in general, barring few exceptions, seems
to have come to the conclusion that crime cannot be investigated and security
cannot be preserved by following the law and this can only be achieved by
breaking or circumventing the law.
At least the traditions of a hundred years
indicate that this is what they believe.
If this belief is not rooted out of their
minds, there is hardly any chance of improvement............ I say it with all
sense of responsibility that there is not a single lawless group in the whole
of the country. whose record of crime comes anywhere near the record of that
organised unit which is known as the Indian Police Force. If the Police Force
must be manned by officers like Mohmmad Naim then it is better that we tear up
our Constitution, forget all about democracy and the rights of citizens and
change the meaning of law and other terms not only in our penal enactments but
also in our dictionaries.
It is for these reasons that I am accepting
this apology and not filing any complaint 368 against Mohmmad Naim. Where every
fish barring perhaps a few stinks, it is idle to pick out one or two and say
that it stinks. 1, therefore, discharge the notice issued against Shri Mohmmad
Naim." The State of Uttar Pradesh felt aggrieved by some of the aforesaid
observations and made an application under s. 561A Code of Criminal Procedure
for expunging them. The observations in respect of which the State of Uttar
Pradesh felt aggrieved were grouped under heads (a), (b) and (c) in paragraph 4
of the petition which we may now set out here :
(a) "If I had felt that with my lone
efforts I could have cleaned this augean stable, which is the police force, I
would not have hesitated to wage this war singlehanded." (b) "That
there is not a single lawless group in the whole of the country whose record of
crime comes anywhere near the record of that organised unit which is known as
the Indian Police Force." (c) "Where every fish barring perhaps a few
stinks, it is idle to pick out one or two and say that it stinks." The
main ground which the State of Uttar Pradesh urged in support of their petition
was that "the observations over the entire police force, bring the same
into contempt, lower its prestige in the eyes of mankind, have a tendency to
interfere with the' administration of the country and injure the security of
the State." The State further alleged that the observations made were not
a necessary part of, and could well be separated from, the main 369 order of
the learned judge on the notice issued to Mohmmad Naim and that there was no
evidence in the record of any kind upon which those observations could be
based.
Mr. justice Mulla heard the application and
came to the following main conclusions :(1) That the State of Uttar Pradesh was
not an aggrieved party and had no locus standi to make an application under s.
561-A Code of Criminal Procedure in respect of the observations made.
(2) The observations required only one
clarification namely, that they were made in respect of the police force of
Uttar Pradesh and not of the whole country.
(3) The observations made under (a) above
would have been expunged, if the aggrieved party had approached the learned
Judge.
(4) As to the rest of the observations, there
were no good grounds for expunging them because they were based upon the
learned Judge's personal knowledge and experience and did not contain any over
statements.
He accordingly dismissed the application of
the State. The State then moved the High Court for a certificate of fitness
under Art. 134(1) (c) of the Constitution of India and being unsuccessful
there, asked for special leave of this court under Art. 136 of the
Constitution. This court granted special leave on April 12, 1962. The present
appeal has been preferred from the order of the learned judge rejecting the
application under s. 5(31-A Cr. P. C., in pursuance of the leave granted by
this court.
The first point which falls for consideration
is whether the State of Uttar Pradesh had locus standi 370 to make the
application under s. 561-A Cr. P. C. We may first read the section :
"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."
It is now well settled that the section confers no new powers on the High
Court. It merely safeguards all existing inherent powers possessed by a High
Court necessary (among other purposes) to secure the ends of justice. The
section provides that those powers which the court inherently possesses shall
be preserved lest it be considered that the only powers possessed by the -court
are those expressly conferred by the Code and that no inherent powers had survived
the passing of the Code (see Jairam Das v.Emperor (1), and Emperor v. Nazir
Ahmad (2)), We shall presently deal with the question whether the High Court
has inherent power to expunge the remarks made by it or by a lower court to
prevent abuse of the process of any court or otherwise to secure the ends of
justice. Assuming that the High Court has such power, the question now before
us is, can the State Government invoke this inherent jurisdiction of the High
Court? The learned judge of the High Court gave two reasons for his finding
that the State Government had no locus standi to make an application under s.
561-A Cr. P.
C. The first reason he gave was that the
State Government could not be said to have been aggrieved by the observations
made by him. The second reason he gave was that the State represented the
executive as well as the judiciary and therefore it would be anomalous if it
made an application under s. 561-A Cr. P. C., for such an application would be
by the State through its executive to expunge remarks made by it as the
judiciary.
(1) A.I.R. (1945) P.C. 94.
(2) A.T.R. (1945) P.C. 18.
371 We do not think that any of these two
grounds is tenable.
Under Art. 154 of the Constitution the
executive power of the State is vested in the Governor and shall be exercised
by him either directly or through officers subordinate to him. The expression
"State Government" has a meaning assigned to it under the General
Clauses Act, 1897 (X of 1897). Briefly stated, it means the authority or person
authorised at the relevant date to exercise executive government in the State,
and after the commencement of the Constitution, it means the Governor of the
State. It is not disputed that the police department is a department of the
State Government through which the executive power of the State as respects law
and order is exercised. If the State Government considers that the observations
made by a court in respect of a department or officers through whom the State
Government exercises its executive powers are such as require invoking the
inherent power of the High Court under s. 561 -A Cr.P. C., it is difficult to
see why the State Government cannot be considered to be the party aggrieved by
such observations. Furthermore, it is not disputed that the State is a juristic
person. The Code of Criminal Procedure itself recognises in some of its
provisions the rights of the State Government; such as, the right to give
sanction and to move the court for necessary action etc. the State Government
being the authority or person authorised to exercise executive Government at
the relevant date. Some of these provisions are contained in ss. 144 (6), 190
(2), 190 (3), 196, 196-A, 197 etc. of the Code. One outstanding example is
furnished by s. 417 of the Code which gives to the State Government a right of
appeal to the High Court from an original or appellate order of acquittal
passed by any court other than a High Court. It is also not disputed that the
State Government may invoke the revisional jurisdiction of the High Court under
s. 439 of the Code, though that section is general in its terms and does not
specifically 372 mention the State Government. Therefore, we fail to see why
the State Government cannot make an application under s.
561-A. We see nothing anomalous in the State
Government moving the court for redress when it feels aggrieved by remarks made
against it, The State Government may make an application to the High Court
under s. 561-A in the same way as it may direct the Public Prosecutor to
present an appeal on its behalf to the High Court under s. 417 or may invoke
through one of its officers the jurisdiction of the High Court under s. 439 of
the Code. We have, therefore, come to the conclusion that the finding of the
learned judge that the State Government has no locus standi to make the application
under s. 561-A Cr. P.C. is erroneous in law. Our attention was drawn to some
cases where the State Government made such applications in a pending appeal. No
question was however raised therein whether the State Government had locus
standi to make the applications; therefore, we have thought fit to decide the
point on principle rather than on cases where such applications were made.
The second point for consideration is this,
has the High Court inherent power to expunge remarks made by itself or by a
lower court to prevent abuse of the process of any court or otherwise to secure
the ends of justice ? There was at one time some conflict of judicial opinion
on this question.
The position as to case-law now seems to be
that except for a somewhat restricted view taken by the Bombay High Court, the
other High Courts have taken the view that though the jurisdiction is of an
exceptional nature and is to be exercised in most exceptional cases only, it is
undoubtedly open to the High Court to expunge remarks from a judgment in order
to secure the ends of justice and prevent abuse of the process of the court
lsee Emperor v. Ch. Mohd. Hassan (1);
State v. Chhotay Lal (2); Lalit Kumar v. S.
S. Bose (1);
S.Lal Singh v. State (1) A.I.R. (1943) Lah.
298.
(2) 1955 A.L.J. 240.
(3) A.I.R. (1957) All. 398.
(4) A.I.R. (1959) Punj. 211.
373 Ram Sagar Singh v. Chandrika Singh (1);
and In re Ramaswami (2) The view taken in the Bombay High Court is that the
High Court has no jurisdiction to expunge passages from the judgment of an
inferior court which has not been brought before it in regular appeal or
revision; but an application under s. 561-A Cr. P. C. is maintainable and in a
proper case the High Court has inherent jurisdiction, even though no appeal or
revision is preferred to it, to correct judicially the observations made by
pointing out that they were not justified, or were without foundation, or were
wholly wrong or improper I see State v. Nilkanth Shripad Bhave (3). In State of
U. P. v. J. N. Bagga (4), this court made an order expunging certain remarks
made against the State Government by a learned Judge of the High Court of
Allahabad. The order was made in an appeal brought to this court from the
appellate judgment and order of the Allahabad High Court. In State of U. P. v.
Ibrar Hussain (5), this court observed that it was not necessary to make
certain remarks which the High Court made in its judgment. Here again the
observation was made in an appeal from the judgment and order of the High
Court. We think that the view taken in the High Courts other than the High
Court of Bombay is correct and the High Court can in the exercise of its
inherent jurisdiction expunge remarks made by it or by a lower court if it be
necessary to do so to prevent abuse of the process of the court or otherwise to
secure the ends of justice; the jurisdiction is however of an exceptional
nature and has to be exercised in exceptional cases only.
In fairness to learned counsel for the
appellants we may state here that he has submitted before us that the State
Government will be satisfied if we either expunge the remarks or hold them to
be wholly unwarranted on the facts of the case. He has submitted that the real
purpose of the appeal is to remove the stigma which has been put on the police
force of the entire (1) A.I.R. (1961) Pat. 364. (2) A.I.R. (1958) Mad, 303.
(3) I.L.R. 1954 Bom. 148. (4) judgment in Cr.
A. 122/1959 of thiscourt decided on January 16 1961.
(5) Judgment of this court in Cr. As.
148/)957 and 4 of 1958 decided on April 28, 1959.
374 State by those remarks the truth of which
it had no opportunity to challenge.
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 s. 561-A Cr. P. C. 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 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, fairplay 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.
In the case before us the learned judge chose
to make sweeping and general observations against the entire police force of
the State. The case before him related to only one police officer, Mohammad
Naim, about whose conduct the learned judge was 375 undoubtedly justified in
making adverse remarks. The learned Judge himself realised that the remarks
which he had made were much too general and sweeping in character, because in
his later order he said that the remarks were meant for the police force in
Uttar Pradesh only and he further said he would have expunged the remarks under
the head (a) referred to earlier, if the party aggrieved had come before him.
We consider that the remarks made by the learned judge in respect of the entire
police force of the State were not justified on the facts of the case, nor were
they necessary for the disposal of the case before him. The learned judge
conceded that the general remarks he made were not based on any evidence in the
record; he said that he drew largely from his knowledge and experience at the
Bar and on the Bench. Learned counsel for the appellant has very frankly stated
before us that the learned judge has had very great experience in the matter of
criminal cases, and was familiar with the method of investigation adopted by
the local police. He has contended, however, that it was not proper for the
judge to import his personal knowledge into the matter. We do not think that in
the present case we need go into the question as to the extent to which a judge
or Magistrate may draw upon his experience in assessing or weighing evidence or
even in judging the conduct of a person. We recognise the existence of
exceptional circumstances in a case where the judge or Magistrate may have to
draw upon his experience to determine what is the usual or normal conduct with
regard to men and affairs. We say this with respect, but it appears to us that
in the present case even allowing' for the great experience which the learned
judge had in the matter of criminal trials, his statement that "there was
not a single lawless group in the whole country whose record of crime came
anywhere near the record of that organised unit which is known as the Indian
Police Force" was wholly unwarranted and, 376 if we may say so, betrayed a
lack of judicial approach and restraint. The learned judge referred to no
material on which this observation was based, nor did he say that his
experience of criminal trials gave him an occasion to compare the records of
crime of various lawless groups in the State vis-a-vis the Police Force. To
characterise the whole Police Force of the State as a lawless group is bad enough
; to say that its record of crime is the highest in the State is worse and
coming as it does from a Judge of the High Court, is sure to bring the whole
administration of law and order into disrepute. For a sweeping generalisation
of such a nature, there must be a sure foundation and the necessity of the case
must demand it. We can find neither in the present case. We think that the
State Government was justifiably aggrieved by such a sweeping remark. Similar
in nature is the remark about the stinking of "every fish in the police
force barring, perhaps, a few." The word "perhaps" seems to
indicate that even about the few, the learned judge had some doubt. We consider
that these sweeping generalisations defeat their own purpose. They were not
necessary for the disposal of the case against Mohammad Naim. It would have
been enough for the learned judge to say that when a large number of police
officers were resorting to an objectionable method of investigation, it was
unnecessary to pick out one petty officer and prosecute him for doing what
several others had done with impugnity, It was wholly unnecessary for the
learned judge to condemn the entire police force and say that their record of
crime was the highest in the country. Such a remark instead of serving the
purpose of reforming the police force, which is the object the learned judge
says he had in mind, is likely to undermine the efficiency of the entire police
force. We think that in his zeal and solicitude for the reform of the police
force, the learned judge allowed himself to make these very unfortunate remarks
which defeated 377 the very purpose he had in mind. Having said all this, we
must add, lest we be misunderstood, that the conduct of Mohammad Naim and
officers like him deserves the severest condemnation, and the learned judge
rightly observed that such conduct required very serious notice by superior
officers of the Police. It is difficult to avoid the reflection that unless an
example is made of such officers by taking the most stringent action against
them, no improvement in police administration is possible.
For the reasons given above, we have come to
the conclusion, a conclusion which justice demands, that the present case is
one of those exceptional cases where the inherent jurisdiction of the court
should have been exercised and the remarks earlier referred to as (a), (b) and
(c) should have been expunged. We accordingly allow the appeal and direct that
the aforesaid remarks do stand expunged from the order of the learned judge
dated August 4, 1961.
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