T.N.R. Tirumalpad, J.C.
1. This is an application under Section 561-A by one Promode Chandra De who was examined as a witness before the first class Magistrate Shri S.C. Roy at Kamalpur in C.R. case No. 29 of 1960 to expunge certain remarks and observations made by the Magistrate against the petitioner in the judgment in the case.
2. The petitioner was the assistant Headmaster of the Kamalpur Higher Elementary School and was in charge as Headmaster on the date of occurrence namely, 13-7-60. As such acting Headmaster he had filed a petition under Section 107 Criminal Procedure Code for keeping the peace against 10 students in the school including Niramalendu Dev who was the accused in C.R. case No. 29 of 1960. That petition was transferred to this first class Magistrate Sri S.C. Roy for disposal and was pending before him. In the said petition, the 10 students had called for certain records to be produced from the School.
3. It was at that time that the occurrence alleged in C.R. case No, 29 of 1960 was said to have taken place on 13-7-60. The petitioner as acting Headmaster filed the first information report on 13-7-60 at II P.M. stating that Nirmalendu Dev committed house trespass at about 8 P.M. on that night by entering into the office room of the said School by removing the asbestos cement roofing and that when Nibaran Chandra Dev Nath (P.W. 3) and Chandra Kumar Dev Barman (P.W. 4) on hearing a noise from the said office room rushed to the place and Nibaran Chandra Dev Nath opened the office room. Nir cualendu Dev rushed out of the room and grappled with Chandra Kumar Dev Barma and when both of them fell down Nirmalendu Dev ran away and he was seen by one Rajani Kanta P.W. 5, a teacher who had come for a Seminar which was being held at the time in the said School and one Kalachand Chakraborty P.W. 6, a clerk of the School.
4. There was police enquiry commenced early the next morning on 14-7-60 and then it was detected that certain wire-netting in the roof had also been broken open in order to enter the office room after removing the asbestos sheet. The police charge-sheeted Nirmalendu Dev and the said case also came up before the same Magistrate for disposal. Another fact has to be mentioned here. It is that the petitioner filed an application before the A.S.D.M. for transfer of the security proceedings from the file of this Magistrate Sri S.C. Roy under Section 528 Criminal Procedure Code to the A.S.D.M. on the allegntion that Shri S.C. Roy was; residing in the house of one of the students against whom, the security proceedings were taken. The A.S.D.M. ordered on 28-9-60 that the case should be withdrawn from the file of Shri S.C. Roy. It was after this that the trial of C.R. case No. 29 of 1960 was conducted by the Magistrate Shri S.C. Roy on 38-1-1961.
5. In the trial four eye-witnesses who saw Nirmalendu Dev at the time of or soon after the occurrence namely, P. Ws. 3, 4, 5 and 6 were examined. The petitioner P.W. 1 did not know personally about the occurrence except what was reported to him and he filed the complaint evidently because he happened to be the acting Headmaster of the School at the time. His evidence in the trial was only about how he came to know of the occurrence and also about what! he saw on coming to the School at about 9 P.M. on hearing about the occurrence. He spoke about teeing the asbestos roof of the office room broken open and about a shirt which was seen in the School ground and said that it was similar to the one which Nirmalendu Dev used to wear. He also spoke about seeing the wire-netting in the roofing removed when he accompanied the police officer to the School the next morning, The main evidence in the case regarding the occurrence was given, as I said, by P. Ws. 3. 6, Nirmalendu Dev was recognised only by Nibaran Chandra Dev Nath P.W. 3. P. Ws. 4-6 did not know him by sight and were not able to recognise him, though P.W. 4 spoke about his encounter with the person who came out of the office room and P.Ws. 5 and 6 spoke about seeing a person rush away from the place soon after they heard the noise from the office room and heard Nibaran Chandra Dev Nath cry 'thief', 'thief'. They also stated that Nibaran Chandra Dev had told them that it was Nirmalendu Dev who was seen rushing out of the office room. They identified Nirmalendu Dev on the dock as the person whom they saw that flight.
6. But the Magistrate disbelieved the evldence of P. Ws. 3-6 and he has mentioned what he considered as discrepancies in their evidence which led him to dibelieve their evidence regarding the occurrence. After discussing the various discrepancies and commenting adversely on the prosecution evidence the Magistrate proceeded to say that from the facts, evidence and circumstances, he was constrained to find that the prosecution in this case has neither proved beyond all reasonable doubt that there was any such occurrence as alleged in the report and the F.I.R. nor been able to establish beyond any shadow of doubt the complicity of the accused Nirmalendu in the crime alleged. The Magistrate therefore gave the accused Nirmalendu the benefit of the doubt and acquitted him.
7. This acquittal of Nirmalendu Dev is not now questioned before me and the State has not filed any appeal against this acquittal. Hence it is not necessary for me to say whether the judgment of the Magistrate acquitting Nirmalendu Dev is correct or not. The objection is taken to the observations made by the Magistrate in particular in various places in the judgment against the petitioner Promode Chandra De who was examined as P.W. I. in the case. While acquitting the accused the Magistrate went on to say that there was enough scope to doubt that the accused Nirmalendu was maliciously prosecuted by Sri Promode Chandra De, the then officiating Headmaster of Kamalpur High School. Even here the Magistrate was only in doubt that the accused might have been maliciously prosecuted by Sri Promode Chandra De. But he has made certain contemptuous and down-right remarks in the judgment against the witness Promode Chandra De which are the subject-matter of this petition.
8. A list of the offending words and passages have been given along with the petition. (His Lordship then recited the items from this list the; last item of which was as follows:
(II) Then there is the last paragraph of the judgment which has nothing to do with the case-at all. The whole of the last paragraph is as follows:
Let a copy of this judgment be forwarded to the Principal Officer, Education and Chairman, Tripura Territorial Council with a recommendation that Sri Promode Chandra De be immediately transferred from the Kamalpur Government High School for a cleaner and healthier atmosphere between the teachers and the taught of the, school. I have been administering Justice for the last twelve years with a gap of only a year between those years but I never came across a case in which a teacher could stoop so low as to maliciously implicate a boy in his teens in a criminal case to satisfy his wrath.
9. The words and sentences objected to are underlined and given in italics (here in' ') in items I-II above. The petitioner's prayer is that the remarks are based on conjectures or on surmises and not on the evidence in the case and are objectionable and scandalous and wholly irrelevant and beyond the province of one administering justice and further that the said remarks are extremely harsh and injurious to the future career of the petitioner who is a public servant. It is even suggested for the petitioner that the application for transfer made by him of the security proceedings from the file of this Magistrate has perhaps influenced the learned Magistrate in passing the uncalled for remarks. It was also pointed out that the Magistrate has by his remarks. even indicated that the security proceedings taken against the students pending before another Magistrate were the result of the enmity between Promode De and the said students and that they are of a vindictive nature and that such remarks were not only unwarranted but even tending to interfere with the proceedings before another Magistrate.
10. Nirmalendu Dev appeared by Advocate to oppose this application. It was argued on his behalf that the remarks of the Magistrate, were fully justified and that they were necessary for the finding of the Magistrate, that a false case was engineered by the petitioner against the respondent in collusion with P. Ws. 3-6 who were his subordinates and that such remarks which form an essential part of the judgment should not be expunged. It was also contended that there was no appeal against the judgment of the Magistrate and the judgment had become final, that the High Court has no inherent power under Section 561-A Criminal Procedure Code to expunge or to delete any passages from the judgment, but that at best the High Court can only judicially correct any remarks made by the lower Court in its judgment. For this position reliance was placed on the decision of the Bombay High Court in State of Bombay v. Nilkanth : AIR1954Bom65 .
11. I shall, therefore, first deal with the inherent; power of the High Court in such matters under Section 561-A Criminal Procedure Code before I proceed to deal with the passages in the lower Court judgment which are complained against. It is unnecessary to deal at length with this question, as all the authorities of the various High Courts on this question have been exhaustively dealt with in the latest decision of the Punjab High Court on the subject, Lal Singh Kang v. The State . The said decision has also dealt with the decision of the Bombay High Court cited by the respondent. After dealing with the various decisions of the Lahore High Court and of the High Courts of Allahabad, Pepsu, Orissa, Lucknow, Himachall Pradesh, Madras and Rangoon, the Punjab High Court in the decision referred to above has stated that it would thus be seen that the power to expunge remarks is recognized by all the High Courts except Bombay, but that the Bombay High Court, however recognizes only the right of the High Court to judicially correct the judgment of a subordinate Court. The Lahore High Court agreed with the former view and said that the view that unjustified and irrelevant remarks can be expunged is more conducive to the result desired to be achieved namely, to prevent the abuse of the process of the Court and to further the ends of justice. Their Lordships say that if remarks made against a person without any foundation are allowed to continue in the judgment of the trial Court, his adversaries by utilising the certified copy of the judgment can do irreparable harm to him and the contrary observations made by the High Court exonerating him would not be available along with the judgment of the trial Court. With due respect, I agree with the observations of the Lahore High Court and hold that the; High Court has the right under Section 561-A in appropriate cases to expunge the remarks made in judgments in criminal cases by Subordinate Courts. But this power should be used very sparingly.
12. In paragraph 20 of the above decision, their Lordships have laid down certain principles for the guidance of the trial Courts. While holding that the trial Courts are entitled to make remarks which may reflect adversely on the character and conduct of the witnesses and parties to the case based on the evidence in the case, their Lordships say that as such adverse remarks are likely to injure the reputation or prejudicially affect the means of livelihood or the career of the person concerned, this power should be exercised by the trial Courts with great reserve and moderation so as to ensure that the witnesses are not restrained from coming forward to give evidence and giving their real opinions for fear of displeasing the trial Court. The need for this caution is still greater in case of remarks against a public servant whose entire career is likely to be affected by such remarks and further even if such remarks are justified they should be couched in restrained and decorous terms. They further go on to say that no such remarks should be made unless they are based on material legally and properly brought on the record. Where adverse inference is sought to be drawn from some prior act, conduct or statement of a witness, an opportunity should be given to such witness to furnish an explanation by bringing such act, conduct or statement to his notice while he is being examined or by recalling him.
13. Their Lordships proceed to say that the High Court will expunge such remarks if the same are likely to do harm to the person concerned and are based on no evidence or on irrelevant or inadmissible evidence or even if based on proper evidence they are wholly irrelevant to any point in issue and are not necessary either to the conclusions or for the arguments of the Court concerned or where such remarks were based on some prior act, conduct or statement of a witness which has not been brought to his notice to enable him to furnish an explanation. Their Lordships say that such jurisdiction will be exercised only in rare cases of exceptional hardship to avoid abuse of process of the Court and to secure the ends of justice. In a case however where the remarks, though unjustified, form an integral part of the judgment and are not distinctly separable, the High Court would not expunge the same but content itself by recording its observations that the same are unjustified. After having perused the judgments of the various High Courts, I am bound to express my respectful agreement with the observations of the Punjab High Court' in the above decision.
14. It is in the light of the above principles, that we have to see whether the passages referred to above in the judgment of this Magistrate deserve to be expunged or to be held as unjustified.
15. The petitioner is' a public servant and his part in this criminal case was to give the first information to the police of the occurrence in his capacity as the acting Headmaster of the school because the occurrence was reported to him as having taken place in the office room of the Headmaster in the said school. He was not a witness to the occurrence but only spoke about the report made to him about the occurrence and of his visit to the school after the occurrence and of what he saw in the office room when he visited it the same night and also the next morning. In the night he saw the asbestos sheet in the roofing removed, but he could see the, opening in the wire-netting in the roof only the next morning when he visited it again along with the investigating officer. He also stated that the shirt which was recovered from the school premises was similar to the shirt worn by Nirmalendu Dev on previous occasions. He also spoke about the security proceedings taken by him against to students including Nirmalendu Dev. I find from the cross-examination of the petitioner by the respondent that it was suggested to him, whether it was not a fact, that at the time of the occurrence he was taking his daughter Shyamali home. Thus the defence itself did not dispute the fact that the occurrence took, place. Again it was suggested to him by the defence that it was Nibaran Chandra Dev Nath and Chandra Kumar who did the mischief and that the petitioner had concocted the criminal cases against Nirmalendu Dev,
16. There is nothing to prevent a trial Court from coming to the conclusion that the whole case was concocted by the petitioner in collusion with P. Ws. 3-6 who were his subordinates. But, that can be done only if the evidence warranted that conclusion. But in our present case, the Magistrate after making all the remarks against the petitioner which are detailed above, did not come to any such definite conclusion. On the other hand, in page 10 of his judgment, he has only stated that the prosecution has neither been able to prove beyond all reasonable doubt that there was any such occurrence as alleged in the report and the F.I.R. and has not established beyond any shadow of doubt the complicity of Nirmalendu Dev in the crime alleged and that there was enough scope to doubt that Nirmalendu Dev was maliciously prosecuted by the petitioner. Thus the Court itself had only a doubt in the matter. So, the Magistrate gave only the benefit of the doubt to Nirmalendu Dev and did not come to the positive conclusion that the whole case was false, that the occurrence did not take place at all and that the whole case was concocted by the petitioner in collusion with P. Ws. 3-6 who spoke about the occurrence. In such circumstances it is clear that the strong remarks made against the petitioner were clearly, irrelevant and unjustified and were quite unnecessary for the Court to come to the conclusion that it did. In fact a perusal of the whole judgment would show that the Magistrate went out of his way to condemn the petitioner in wild and abusive language which were quite uncalled for.
17. I shall now proceed to deal seriatim with each of the passages complained against. (After so dealing his Lordship proceeded:)
18. I now come to the last sentence which has actually nothing to do with the judgment in the case and which certainly should not form part of a judgment within the meaning of Section 367 Criminal Procedure Code. After acquitting the accused and after making all the unwarranted remarks against the petitioner, the Magistrate was not satisfied and so he directed a copy of the judgment to be forwarded to the authorities concerned and has even gone to the length of making a recommendation that the petitioner should be transferred from Kamalpur so that there should be a cleaner and healthier atmosphere between the teachers and the taught of the school. I wish Magistrates will realise the sphere in which they work. Their judgments should be confined to the case and it is not part of their duty to make recommendations for transfers of public servants appearing as witnesses before them. If they feel that any judgment passed by them should be brought to the notice of the authorities concerned for such action as they thought fit to take,, they can forward a copy of the judgment to the authority concerned. But they should never make remarks of this kind in their judgments.
19. As I said, the petitioner was a public servant and any such recommendation mads in a judgment would seriously affect.his career as a public servant. It would even show that in the trouble between the students and the petitioner resulting in the security proceedings which are pending in another Court, this Magistrate has gone out of his way to indicate that the, petitioner was in the wrong, and that he should be transferred from the place. Such remarks are highly reprehensible and have to be deprecated. The entire passage which is the last paragraph in the judgment will also have to be deleted.
20. Ordered accordingly.