1. This is an application by Hakim Syed Mohammad for revision of an order of the learned Sessions Judge of the Bijnore District, refusing to expunge certain remarks concerning the applicant contained in a judgment delivered by Chaudhri Harpal Singh Saheb, First Class Magistrate, Bijnore, dated 14th May 1934, in the criminal case of King Emperor v. Hakim Syed Mohammad and others.
2. The case of King-Emperor v. Hakim Syed Mohammad and others arose out of an affray which took place in a mosque at Dhampur on 1st March 1934 at about 8-30 p.m. The case for the prosecution was that the present applicant together with Khan Mohammad and six other persons formed an unlawful assembly with the object of belabouring two persons, namely, Khallan Khan and Rahimdad Khan, and that in pursuance of this common object they did belabour these two persons and also attacked them with knives causing each of them injuries of varying severity. The case, as presented by the prosecution, was that the real instigator of the whole affair was the present applicant, but, after hearing the whole of the evidence, the learned Magistrate came to the conclusion that the case was only proved against Khan Muhammad and consequently acquitted the applicant and the six other persons charged with him. In his judgment the learned Magistrate states:
A careful examination of the first information report Ex. D, the dying declaration Ex. E, and the evidence of the prosecution witnesses recorded before me has convinced me that the case against the accused persons other than Khan Mohammad is extremely doubtful and appears to be the result of a natural tendency to exaggerate facts, when parties concerned are torn up into factions, as they are in this case.
3. From this observation it is clear that the learned Magistrate was wholly unable to hold upon the evidence that the present applicant had been a party to the attack or had instigated it in any way. It must be remembered that the case for the Crown as presented was that the applicant was the ring-leader and the person really responsible, but upon the evidence the learned Magistrate was constrained to hold that no case, whatsoever had been established against him. In the circumstances indicated above the learned Magistrate saw fit in the concluding portion of his judgment to make some very sweeping statements with regard to the applicant. He said:
He (meaning the applicant) appears to be a hot partisan of a group of desperados in Dhampur and he seems to be hopelessly mixed up in the local politics of a militant type. It is therefore a matter for serious consideration whether the influence which he exercises as an Honorary Magistrate and the awe which he is able to inspire as a gun license-holder should be allowed to continue in the peculiar conditions of the locality, as disclosed in this case.
4. The evidence called in this case in no way justifies these comments made by the learned Magistrate. The learned Magistrate was unable to find as a fact that the applicant was the ringleader in this affair, for if he had been he would undoubtedly have been convicted. As far as the case against the applicant was concerned the learned Magistrate was of the opinion that it was extremely doubtful and appeared to be the result of a natural tendency to exaggerate facts, when parties concerned are torn up into factions as was the case here. How in those circumstances the learned Magistrate felt justified in stating that the applicant appeared to be a hot partisan of a group of desperados and as an Honorary Magistrate exercised great influence upon them and inspired in them awe by reason of his being a licenced gun holder, I am quite unable to understand. There is no reference in the case about the applicant being a licensed gun holder and therefore what such a remark has to do with the present case, I cannot understand. It appears to me that the learned Magistrate was using his own private [knowledge of the applicant and that these comments were based not upon evidence which he had heard in the case but rather upon information which lie had received from other sources. Upon revision to the learned Sessions Judge the latter remarked that:
The remarks of the learned Magistrate are partly though not wholly, I am afraid, based on the material on the record in this case and a Sub-Divisional Officer might not be unjustified in strengthening his impression on the material on record by his outside information against the man in such matters as these.
5. With this view of the learned Sessions Judge entirely disagree. In my judgment a Judicial Officer may comment upon the conduct of a person in a case and comment severely if the evidence before him warrants such comment. On the other hand, if the evidence produced in the case does not warrant a comment upon a person, no comment on that person should be made. A Judicial Officer is not entitled to use his personal knowledge during I the conduct of a case and cannot and should not comment on any party in that case as the result of information received, not in the case itself, but from outside sources. From the finding of the learned Magistrate the most that could be said against the applicant was that he was present when this affray took place and did nothing to prevent it. Quite clearly from the result of the case he neither instigated nor assisted in the assault and no inference should be drawn against him from the mere fact that he did nothing. He may have done nothing for many reasons and the first and the obvious reason is fear. His conduct on this day was far from being the conduct of a man at the head of a group of desperados and far from being the conduct of a man who exercised great influence on others and who was held in awe by others because he was an Honorary Magistrate and the holder of a gun license.
6. Having regard to the fact that the comments complained of cannot be justified upon the evidence on the record I am of opinion that they should not have formed part of the judgment and cannot be allowed to remain as part of the judgment. In the result therefore I direct that the words following, namely:
In my view, the material on record more than justifies a concluding remark on my part against Hakim Saiyed Mohammad in view of his position as an Honorary Magistrate of the place. He appears to be a hot partisan of a group of desperadoes in Dampur and he seems to be hopelessly mixed up in the local politics of a militant type. It is therefore a matter for serious consideration whether the influence which he exercises as an Honorary Magistrate and the awe which he is able to inspire as a gun license holder should be allowed to continue in the peculiar conditions of the locality, as disclosed in this case.
be expunged from the judgment of the learned Magistrate in this case. I accordingly allow this application.