1. This is a petition under Schedule 39 read with Schedule 61A, Criminal P. C., for expunging certain remarks made against the character of the petitioner by Sri P. N. Sarkar, Magistrate, 1st Class, Berhampur in his judgment in G. R. No. 10 of 1947.
2. The petitioner is a resident of village Pitala P. S. Aska in Ganjam district. He is also a member of the Orissa Legislative Assembly and belongs to the Congress Party. On 8-12-46 one Chori Santra of village Raisinghpur which is very close to village Pitala lodged a station diary entry at Aska Police Station at about 10 A. M. to the effect that one Sibarama Patnaik, the Karanam of village, had been assaulted and wrongfully confined by several persons of Pita'a village led by Harihar Panda. The police did not take any immediate action thinking that it was a non-cognisable offence. Sub-sequently, however, a petition was sent to the Superintendent of Police on the basis of which the S. I. of Aska instituted a regular F. I. R. on 26-1-47 and after due investigation submitted charge-sheet against Harihar Panda. Biswanath Panda and six other persons who were all tried for offences under Sections 147, 342/149 and 356, Penal Code in the Court of Sri P. N. Sarkar Magistrate, 1st Class, Berhampur. In that case the petitioner figured as one of the eye-witnesses (P. W. 5). Chori Santra (P. W. 1) and Sibaram Patnaik (P. W. 2) also deposed in support of the prosecution case. The substance of the allegations made against the accused persons in that case was that the said Sibaram Patnaik (P. W. 2) wrote a love-letter to a female inmate of the house of accused Harihar Panda which, however, fell into the hands of the accused persons. Thereupon, they were so much enraged against Sibaram Patnaik that they collected in a mob and wanted to kill him, He hid himself in the village Pathaghar for some time but sub. sequently on the assurance given by the petitioner he came out. The accused persons thereupon tied his hinds, put an earthen pot on his head and led him in a procession in a humiliating way throughout the village. In the end, however, the petitioner succeeded in persuading Harihar Panda and his men to release Sibaram Patnaik.
3. The learned Magistrate while acquitting the accused persons observed that the prosecution case appeared to be an exaggerated and inflated account of some alteration or misunderstanding between Sibaram Patnaik (P. W. 2) and the accused's party. Ha further observed:
'P. W. 2 having done a wrong and indecent act which brought general denunciation from the public must have taken the help of the enemies of the accused in saving his face some how.'
He pointed out that all the eye-witnesses were interested persons inimically disposed towards the accused persons and held that the charges were not brought home against them. While discussing the evidence of P. W. 5 (the petitioners) who claimed to be an eye-witness to the occurrence, the learned Magistrate made the following comments:
'Besides the aforesaid facts this witness has made a number of admissions which go to show that the witness has evinced extraordinary interest in the case from its inception and during trial. He has often misused his position as a public man in trying to influence the police and officers in getting a verdict against the accused persons.'
The passage underlined (here italicised) has been taken exception to and I have been asked to expunge those remarks on the ground that they were not justified from the evidence on record. The learned Magistrate was called upon to show cause why these remark3 should not be expunged and he has submitted an explanation pointing out extracts from the evidence from which he thought that those remarks were justified.
4. The first question for consideration is whether the High Court has power under Schedule 61A, Criminal P. C., to expunge these remarks when no appeal or revision has been filed in the High Court against the order of acquittal passed by the trying Magistrate. In P. J. Rogers v. Shrinivas Gopal, A. I. R. (27) 1940 Bom, 266 : (41 Or. L. J. 855), Beaumont C. J. (as he then was) took the view 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. This decision has been followed in a later Single Bench decision of the Patna High Court reported in Bhutnath Khawas v. Dasrathi Das, A. I. R. (28) 1941 Pat. 544: (42 Cr. L. J. 546). On the other hand, several other High Courts have held that whatever might have been the law prior to 1923 the effect of the insertion of Schedule 61A, Criminal P. C. by the amendment of 1923 was to make it clear beyond any doubt that the Inherent powers of the Court can be invoked for expunging objectionable remarks from a judgment when they are not justified from the evidence on record, Panchanan v. Upendra Nath, A. I. R. (14) 1927 ALL. 193 : (27 Or. L. J. 1407); Emperor v. Atta Ullah Shah, A. I. . (23) 1936 Lah. 429 : (37 Cr. L. J. 661); Lachhman Das v. Jai Gopal, 40 Cr. L. J. 214 : (A. I. R. (25) 1938 Lah. 793); Ghumanmal v. Emperor, a, I. R. (31) 1944 Sind 133: (46 Cr. l. J. 85); In re Public Prosecutor, A. I. R. (31) 1944 Mad. 320 : (45 Cr. L. J. 763) and Mohd. Fazal Shah v. Muhammad Asghar, 51 Or. L J. 500 : (A. I. R. (37) 1950 Lah. 66). The law on the subject has been fully disoussed in those decisions and with respect I am inclined to follow the reasonings given therein. As pointed out in Ghumanmal v. Emperor, A. I. R. (31) 1944 Sind 133 : (46 Or. L. J. 88).
'One of the inherent powers of the highest Court of a Province is to prevent grave injustice and injury being caused to a person, who, though not a party, has as a witness been called before the Court upon a summons which he cannot disobey and who has nevertheless been made the subject of defamatory remarks by a Magistrate or Judge, which remarks can in no way be justified from the record and the making of which, therefore, must involve the abuse of the judicial office. To expunge any such passage at the instance of a person aggrieved is 'otherwise to secure the ends of justice' within the meaning of Schedule 61A, Criminal P. C. Once it is considered that the High Court has this power, it must be conceded that it has the necessary ancillary power to call for the record so that its inherent power may be exercised.'
5. The main question therefore for consideration now is whether the remarks made against the character of the petitioner by the learned Magistrate were justified from the evidence on record. That they are of a highly defamatory nature and are likely to damage the petitioner's reputation amongst the public admits of no doubt whatsoever. The petitioner is a member of the Orissa Legislative Assembly and a prominent Congress worker of Ganjam district. If a Court of justice says that 'he has often misused his position as a public man in trying to influence the police and officers in getting a verdict against the accused person' such remarks would lower him in public estimation and may prove fatal to his whole political career. Doubtless Magistrates should be free to make bold and fearless comments on the evidence before them while writing their judgments so that they may be able to discharge their duties effectively. But they should use restrained language while commenting on the character and credibility of witnesses, who, unlike the accused persons, do not get adequate opportunities to defend themselves. If the Magistrates overstep the limits and make adverse remarks of a sweeping nature against witnesses unsupported by the evidence on record, the High Court, for the ends of justice has to interfere.
6. The petitioner was admittedly on inimical terms with the accused persons though they were both related. There seems to be no doubt that the petitioner took an active part during police investigation. The earliest information about the occurrence was lodged at Aska Police Station not by the aggrieved patty Sibaram Patnaik(P. W. 2) but by one Chori Santra (P. W. l) who is a son of Purohit of the petitioner himself. The police did not take any action on that information and thereupon a report was sent to the Superintendent of Police with a covering letter forwarded by the petitioner himself. It was on the basis of this report that under the orders of S. P. further investigation started. The petitioner admitted that he sent a latter to the Circle Inspector of Aska to investigate this case. The Inspector of Police (P. W. 8) deposed that during police enquiry the petitioner (P. W. S) was present and that he was putting questions now and then to the witnesses. He tried to persuade P. W. S to file charge sheet in the present case and in two other connected cases and he went to the length of requesting P. W. 8 to arrest the accused persons and not to grant them bail, Apart from these facts, there is also the admission of P. W. S to the effect that after the completion of the investigation of this case he sent a report to the Hon'ble Prime Minister complaining against the S. I of Aska. From these proved facts the learned Magistrate wag undoubtely justified in saying that the petitioner took extraordinary interest in the case. It is true that as an eyewitness it was his duty to narrate all that he knew about the occurrence to the police during investigation. But his extraordinary action in forwarding a complaint against the local police to the S. P., in putting question to the witnesses now and then during investigation and in asking the Police Inspector (P. W. S) to arrest the accused persons and not to grant them bail and also trying to persuade him to submit charge sheet in the case-all tend to support the view that the petitioner was anxious to exploit to the full the advantage derived from a case of this type against his rivals. Doubtles3 if the occurrence is substantially true there is nothing wrong in a public worker trying to help the police in bringing the offenders to justice; but even for that purpose, the petitioner being a member of the Legislative Assembly need not have taken such an extraordinary interest which, he must have known, would embarrass and overawe the local official. But I am unable to understand why the learned Magistrate observed that the petitioner often misused his position as a public man in trying to influence the police and officers in getting a verdict against the accused persons'. The use of the words 'often' and 'misused,' seem to indicate that the petitioner was deliberately concocting several false cases against the accused persons with a view to get them convicted. But even the Magistrate does not say in his judgment that entire prosecution case is false. On the contrary he gave the benefit of the doubt to the accused persons though he seems to have recognised that there was some sort of altercation and misunderstanding between P. W. 2 and the accused persons due to the former's indecent action. There is no evidence to show that apart from this case and the other connected cases there was any other criminal case against the accused persons in which the petitioner played any part, Thus when the occurrence is not held to be false and when there is no evidence of similar conduct by the petitioner against the accused persons it is not proper to say that the petitioner 'often misused his position as a public man' even if it be held that he tried to influence the police to submit charge sheet in this case.
7. The learned Magistrate further observed that the petitioner tried :to influence officers also in getting a verdict against the accused persons. This portion of the remarks seems to be based on the admission made by the petitioner to the effect that while the present case was being tried by a Magistrate of Aska the petitioner as a public worker saw him several times though not in connection with this case. There was also a suggestion to the effect that the trying Magistrate actually went to the house of the petitioner on 18-9-1947. But this suggestion was denied. The Magistrate, however, felt highly embarrassed while these questions were put to the petitioner during his cross-examination. Therefore, in the order-sheet dated 6-9-1947 he himself suggested to the District Magistrate for the transfer of the case from his file. The case was eventually transferred to the file of a Magistrates at Berhampur. The evidence on record only shows that while the present case was going on in the Court of the Magistrate at Aska the petitioner saw him several times in connection with some other matter. This conduct of the petitioner has been sought to be justified on the ground that as a public worker, there might have been a necessity for him to see the Magistrate who was also an Executive Officer. But as his action was likely to be misconstrued, the trying Magistrate rightly himself suggested for the transfer of the case from his file. But from these facts it is not fair to infer that the petitioner misused his position as a public man by trying to influence the Magistrate to give a verdict against the accused persons. For such, a sweeping statement there must be stronger evidence on record. Apparently the learned Magistrate was, to some extent, influenced by the contents of a letter said to have been written by the petitioner to the Hon'ble Prime Minister of Orissa on 9-4-1947, a copy of which. was reproduced in the 'Observer' dated 20-4-1947. That letter has not been proved in this case and a copy of the 'Observer' has merely been marked as 'x' for identification. The petitioner has not admitted the contents of the letter though his answers in cross-examination with reference to that letter are evasive and unsatisfactory. Whatever that may be, so long as that letter has not been proved properly in the case and admitted as evidence it should not have been taken into consideration.
8. I am, therefore, of the opinion that though the Magistrate was justified in observing that the petitioner took an extraordinary interest in the case from its inception and that his evidence should be viewed with suspicion in view of his admitted enmity with the accused persons, he was not justified in saying 'he has often misused his position as a public man in trying to influence the police and officers in getting a verdict against the accused persons'. It may be that the petitioner's conduct during police investigation was not prudent and his seeing the trying Magistrate at Aska while the present case was pending in his Court was also not proper. As a prominent public worker and a Congress member of the Legislative Assembly the petitioner should have known that any extraordinary interest that he might evince during police investigation of this case and his repeated interviews with the trying Magistrate while the case was pending in his Court are likely to be misconstrued by the public and are also likely to embarrass and sometimes overawe the local officials. It may be that the petitioner had absolutely no intention of interfering with their discretion so far as the investigation or trial of this case was concerned. But in view of his peculiar position, he might have kept himself strictly aloof except to the limited extent of stating to the police and the Magistrates what he knew personally about the occurrence. But mere impropriety of conduct is not sufficient to justify a sweeping remark to the effect that 'he often misused his position as a public man'.
9. I would, therefore, allow the petition and expunge the passage complained of from the judgment of the lower Court.