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B.S. Dewan Vs. State of Andhra Pradesh - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtAndhra Pradesh High Court
Decided On
Judge
Reported in1958CriLJ148
AppellantB.S. Dewan
RespondentState of Andhra Pradesh
Excerpt:
.....based on common sense and fair play, that when a judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the judge's suspicion about his conduct. he failed to see the owners at all. ' but that expression is too strong and goes far beyond the suspicion that his conduct may excite. so then there is no justification for such imputation which is likely to work incalculable hardship on the person by affecting his good name, integrity and business......he did not allow the accused to get the guns from the dump and went to the dump and obtained the guns personally. this conduct might have created suspicion in the mind of the magistrate and that is the reason why he has observed that he is 'the main person behind the curtain.' but that expression is too strong and goes far beyond the suspicion that his conduct may excite. the learned magistrate seems to have relied on p.ws. 10 and 11 for the fact that b. s. diwan obtained the guns alleging to have been sold by the owners and then he sold them.but i find no such statement in the sworn testimony of either witnesses. there is no evidence on record to show that b. s. diwan himself had represented personally that the guns had been sold by the owners themselves. under these circumstances,.....
Judgment:
ORDER

Kumarayya, J.

1. Cri. M. P. No. 343/1957 is an application for expunging certain remarks derogatory to the petitioner in the judgment of the Special Magistrate, Hyderabad in Case NO. 51/2/i 1953-54. This case was brought against Rama chandra Reddy for offences under Sections 420, 467 and 468, Penal code.

2. The brief facts are: that Mohammad Azizuddin, Md. Shamsuddin and Khurshid Ali Khan (Ex. Taluqdar) had surrendered their 12 bore guns in obedience to the general order of the Military Governor passed in the year 1947 in the police stations at Falaknama, Mirchowk and Chadarghat. All these guns were sent to Retlaburj dumping house. In the year 1951, applications were made for their release. For the purpose of this proceeding, we are concerned only) with the applications relating to the guns of Azizudidin and Shamsuddin bearing Nos. 3519V and 9547 respectively.

It appears on 28-11-1951 applications bearing signatures of the said owners were submitted to the Collector for the release f the guns to the purchaser, the present petitioner. Along with them was filed a petition with the signature of the present petitioner as the purchaser with the same request. The petitioner admits that the signature thereon was his. His contention is that he did not go to the Collector's Office but had given it to the accused who got thereafter the release order dated 4-12-1951. Subsequently he along with the accused went to the Retlaburj dump and received the said two guns on 6-12-1851 having made his signature in the register. Out of these two guns, he sold one to L. A, Narasimhareddy and the other to one 'Messrs. Barduk Ghar Gaya' in Behar after obtaining transport licence from the Home Secretary, Hyderabad Government.

In relation to these two guns also the accused was charged with the offences above-mentioned. The allegation was that he presented the applications with forged signatures of Azizuddin and Shamsuddin and got the arms released and profited himself by the sale of the said guns. As would appear from what has been said above, it was the petitioner who as the purchaser of the guns had applied for their release. His contention is that he did not present the application in person. It was the accused who came to him and said that some Muslims have their guns living in the police dump, that they have no licence ; that they want to sell those arms, that he knows them fully well and that if the petitioner could arrange to get these arms released on his licence and arrange the sale of the guns he will be paid Rs. 100 as commission for each gun.

It is also, stated that on the enquiry of the petitioner, the accused assured him that the owners were persons of status and felt shy to approach him directly and hence he came on their behalf. The petitioner took him at his word and at his request wrote down the applications showing his intention to purchase the guns. They were handed over to the accused for lie said he would get the release order soon. Thereafter the accused came on 6-12-1951 and took him to the dump where the petitioner took delivery of the guns in question and disposed them of as mentioned above.

3. Thus though he signed his name as a purchaser on the application drafted by him and actually got delivery of the guns and disposed: them of as the fire-arms' dealer, his contention has been that he believed that the signatures Of the owners on the other petitions submitted along with his own were genuine, that the accused was actually acting on their 'behalf and saw no apparent reason to disbelieve him. As P.W. 8 in the case, his deposition is to that effect. The learned Special Magistrate having considered all the evidence made the following observations in his judgment:

As has been stated by Mohamed Hussain, P.W. 10 and Shamsuddin P.W. 11 and Exs. l, 6 and 13 B. S. Diwan obtained the guns alleging to have been sold by the owners and sold them. In the like way the accused obtained one gun and exchanged H with the gun of K. V, Gopal Reddy (P.W. 5). As such B. S. Diwan seems to be the main person behind the curtain and as such reliance cannot be made on his statement that the accused has done all this, to obtain the guns of Mohammed Azinuddin and Shamsuddin.

It is the last portion that 'as such B. S. Diwan seems to be a main person behind the curtain and as such reliance cannot be made on his statement that the accused has done all this, to obtain the guns of Mohammed Azizuddin and Shamsuddin' that is sought to be expunged. This observation is derogatory to the applicant. A charge of mala fide and dishonest conduct in getting release order through the accused is implicit in this remark. The language in which it is couched unmistakably shows his secret participation in what is. in fact an offence.

The question, therefore, is whether this objectionable remark is justified by the material on record, if not, whether this Court can or ought to expunge the objectionable remarks from the judgment having regard to the circumstances of the case.

4. As regards the powers of this Court, it is well .settled that the High Court has inherent jurisdiction to expunge .irrelevant, objectionable and scandalous remarks or passages from the judgments of the Subordinate Court on the application of the persons aggrieved even though the matter might not have come in appeal or by way of revision. But ft is equally well established that this power should be exercised with great caution and only in exceptional circumstances As observed in Lalit Kumar v. S. S. Bose, : AIR1957All398 .

the High Court is very jealous in guarding the independence of Magistrates and Judges subordinate to it and encourages them to feel that they can fearlessly give expression to their opinions in the judgments which they deliver.

But there are three necessary limitations: first, no person should be condemned unheard, second, in making his criticism the Magistrate or Judge should not travel outside the record; and third,, the criticism should be made with sobriety and a due sense of responsibility. That caution and care should attend the observations of the Judges and Magistrates while passing remarks on the witnesses and parties or other persons has been. the trend of decisions of all the High Courts., As pointed out in Muhammad Fazal Shah V-Muhammad Asghar A.I.R. 1950 Lah 66 (B):

Disparaging remarks in a judgment, whether they amount to a verdict Or not, imputing crime, moral delinquency or improper conduct of a person are a constant source of uneasiness and irritation to him. They lower him in the publics estimation and haunt him like a spectre for life invariably visiting him whenever he enters the precincts of a Court of Justice as a witness Or a party. Being fraught with such serious consequences they should only be made where any hesitation or reluctance in making them would impede the ends of justice...unless Judges had the power to make bold and fearless comments on the evidence before them they would not be able effectively to discharge their func tions.

These two conflicting considerations must always be present to the mind Of a Judge whenever he is called upon to criticise the character and conduct of a person. On the one hand, he should weigh the gravity of the damage that his remarks would cause to the person concerned and on the other he must realise that he owes a duty to the parties, the public and the Appellate Court Of stating in full his reasons for the view he takes of the evidence. It is against a rule, as ancient as the law itself and based on common sense and fair play, that when a Judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the Judge's suspicion about his conduct. A Judge who condemns a man unheard acts as unfairly as if he were to convict a man without hearing him in his defence.

The law on the subject has been discussed in Rangachari v. State of Andhra, 1955 Andh W R 374 (C), by this Court after reviewing various authorities, It has been held therein that Court: are at full liberty to discuss the conduct of the persons before them either as parties Or as wit-1 nesses but they should neither make any sweeping I assertions as are not borne out by the evidence before them nor should they use language which is unduly harsh. The remarks must be justified by the conduct of the witnesses and necessitated for the purpose of the case. Otherwise the High I Court has inherent powers to expunge objection-1 able remarks.

But expunction of remarks in some cases may not be feasible at all without affecting the judgment which has become conclusive. As a rule it is necessary therefore that the objectionable matter sought to be expunged should be separable and irrelevant. If they are inseparable or when expunging of remarks would mutilate the judgment, it may then be sufficient to express the opinion that the remarks should not have been passed.

5. In the light of these principles, I have to consider whether the remarks in question are such as are unwarranted or unjustified by the material on record or irrelevant or inadmissible. It is no doubt true that the petitioner did not take as much care as he should as a dealer. He did not satisfy himself whether the accused had any authority from the owners or that the signatures on the applications were made by them. He failed to see the owners at all. Such a conduct Indeed is not usual with the wary business people. That apart, admittedly, he did not go to the office but handed over the petition to the accused and got the release order. When he was expected to get the release effected only on assuring the Collector that lie was the purchaser, he ought not to have left this matter to the accused who could not represent him at all.

However, he did entrust the application to him and got the release effected. It is significant he did not allow the accused to get the guns from the dump and Went to the dump and obtained the guns personally. This conduct might have created suspicion in the mind of the Magistrate and that is the reason why he has observed that he is 'the main person behind the curtain.' But that expression is too strong and goes far beyond the suspicion that his conduct may excite. The learned Magistrate seems to have relied on P.Ws. 10 and 11 for the fact that B. S. Diwan obtained the guns alleging to have been sold by the owners and then he sold them.

But I find no such statement in the sworn testimony of either witnesses. There is no evidence on record to show that B. S. Diwan himself had represented personally that the guns had been sold by the owners themselves. Under these Circumstances, the conduct of B. S. Diwan would not warrant a remark involving an imputation Of veiled criminality or moral delinquency or mala fides. The learned Magistrate seems to have been constrained to pass the remark only to indicate that reliance cannot be placed en the statement Of such a witness.

It may be that he wanted to show that he Is a highly interested witness and his testimony is not sufficient to implicate the accused. It may also be that the learned Magistrate ay using the expression 'main person behind the curtain' intended to bring out the idea that the witness got the released orders as to the guns through the accused himself remaining behind, However the expression used goes far beyond the meaning it Is intended to convey. It conveys an idea that he Is almost a particeps criminis. even though such is not the case of the prosecution nor is it thus established by the record.

So then there is no justification for such imputation which Is likely to work incalculable hardship on the person by affecting his good name, integrity and business. Under these circumstances, the words 'seems to be a main person behind the curtain and as such...' should be expunged. These words do not touch the fabric of the judgment nor by their expunction the Judgment is mutilated. They are not inseparable. I therefore direct that the objectionable words stated above be expunged from the judgment. The petition is thus allowed.

6. There is yet another petition No. 342/1957 for the same purpose and this relates to Case Nos. 49 and 50/53-54 wherein the accused is the same person charged for similar offences in relation to three guns belonging to Syed Mustafa Qadri, Sarfavaz Ali Khan and Afzul Ali Khan. The release orders were obtained in similar circumstances though the accused and the petitioner Obtained the guns personally from the dump and sold them to three persons The learned Magistrate has in relation to the petitioner passed the following remarks which are sought to be expunged:

It is also evident that B. S. Diwan is the main person behind the curtain and is possible to have made the accused as his tool in order to hide his guilt.

There is nothing on record to justify the conclusion that B. S. Diwan is guilty of any offence or of collusion with the accused. That is not the case of the prosecution either. The petitioner's case has been that the accused had made him believe that the persons whom he showed were the owners and that he will himself get the release order. He took him at his word and when he brought the release order he obtained the guns and as the firearms dealer disposed of them. His story might have excited suspicion in the mind of the Magistrate but there is nothing to warrant the imputations of guilt or dishonesty. For the reasons given above in connection with Cr. M. P. No. 343 of 1957, the above passage should be expunged from the judgment. I order accordingly.


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