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The State of Uttar Pradesh Vs. Mohammad Naim - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtSupreme Court of India
Decided On
Judge
Reported inAIR1964SC703; [1964]2SCR363
ActsCode of Criminal Procedure (CrPC) , 1898 - Sections 561-A
AppellantThe State of Uttar Pradesh
RespondentMohammad Naim
Cases ReferredU.P. v. Ibrar Hussain
Excerpt:
.....commit the offence and ceases as soon as cause for reasonable apprehension disappears. - if the policeforce must be manned by officers like mohmmad naim then it is better that wetear up our constitution, forget all about democracy and the rights of citizensand change the meaning of law and other terms not only in our penal enactmentsbut also in our dictionaries. ' the state further alleged that the observationsmade were not a necessary part of, and could well be separated from, the mainorder of the learned judge on the notice issued to mohmmad naim and that therewas no evidence in the record of any kind upon which those observations couldbe based. (4) as to the rest of theobservations, there were no good grounds for expunging them because they werebased upon the learned judge's..........197 etc. of the code. oneoutstanding example is furnished by s. 417 of the code which gives to the stategovernment a right of appeal to the high court from an original or appellantorder of acquittal passed by any court other than a high court. it is also notdisputed that the state government may invoke the revisional jurisdiction ofthe high court under s. 439 of the code, though that section is general in itsterms and does not specifically mention the state government. therefore, we failto see why the state government cannot make an application under s. 561-a. wesee nothing anomalous in the state government moving the court for redress whenit feels aggrieved by remarks made against it. the state government may make anapplication to the high court under s. 561-a in the same way as it may.....
Judgment:

S.K. Das, J.

1. This is an appeal by special leave, and it presents some unusualfeatures. The short facts are these. The Additional Sessions Judge of Hardoi inthe State of Uttar Pradesh tried Zafar Ali Khan and three other persons oncharges under Sections 452 and 307 read with s. 34, Indian Penal Code. The caseagainst the aforesaid accused persons started on a first information reportlodged at a police station called Shahabad, purporting to have been so lodgedat about 3.30 A.M. by one Farasat Ali Khan on the night between the 7th and 8thNovember, 1958. The case was investigated by one Mohammad Naim who was then theStation Officer of Shahabad police station. The learned Additional SessionsJudge convicted the accused persons though he found, on the evidence given inthe case, that it was more probable that the first information was lodged atthe police station at about 7 or 8 A.M. rather than at 3.30 A.M. From theconviction and sentences passed by the Additional Sessions Judge there was anappeal to the High Court at Allahabad (Lucknow Bench). This appeal was heard byMulla J. He found that Mohammad Naim had dressed up a totally unbelievable casewhich destroyed the evidentiary value of the statements of Farasat Ali and hiswife, Ummati Begum, two of the principal witnesses for the prosecution. TheLearned Judge allowed the appeal and set aside the conviction and sentences ofthe four appellants before him. The learned Judge further observed in hisjudgment :

'There is ample evidence to prove that the firstinformation report in this case was not lodged at 3.30 A.M. This is also thefinding of trial court. The time noted in the first information report is,therefore, a fictitious time and a fabrication has been made in the publicrecords. I, therefore, direct the office to issue a notice to Sri Mohammad Naimas to why a complaint should not be instituted against him by this court undersection 195 I.P. Code.'

2. In pursuance of the direction given by the learned Judge, Mohammad Naimwas given a notice to show cause why a complaint for an offence under s. 195Indian Penal Code should not be made against him for fabricating the firstinformation report in respect of the time at which it was said to have beenlodged. Mohammad Naim appeared before the learned Judge and threw himself atthe mercy of the court and asked for forgiveness. The learned Judge dealt with theMatter in Cr. Mis. Case No. 87 of 1961. He accepted the apology of MohammadNaim, but said that he did so very hesitatingly. In the course of his orderaccepting the apology of Mohammad Naim he made certain observations. We may nowquote those observations :-

'I issued the notice becauseI want to clean the public administration as for as possible but anindividual's efforts cannot go very far. If I had felt that with my loneefforts I could have cleaned this augean stable, which is the police force, Iwould not have hesitated to wage this war single-handed. I am on the verge ofretirement and taking such steps for two months or three months more would notmake any difference to the constitution and the character of the policeforce.... Somehow the police force in general, barring few exceptions, seems tohave come to the conclusion that crime cannot be investigated and securitycannot be preserved by following the law and this can only be achieved bybreaking or circumventing the law. At least the traditions of a hundred yearsindicate that this is what they believe. If this belief is not rooted out oftheir minds, there is hardly any chance of improvement................ I say itwith all sense of responsibility that there is not a single lawless group inthe whole of the country whose record of crime comes anywhere near the recordof that organised unit which is known as the Indian Police Force. If the PoliceForce must be manned by officers like Mohmmad Naim then it is better that wetear up our Constitution, forget all about democracy and the rights of citizensand change the meaning of law and other terms not only in our penal enactmentsbut also in our dictionaries.

It is for these reasons that I amaccepting this apology and not filing any complaint against Mohmmad Naim. Whereevery fish barring perhaps a few stinks, it is idle to pick out one or two andsay that it stinks. I, therefore, discharge the notice issued against ShriMohmmad Naim.'

3. The State of Uttar Pradesh felt aggrieved by some of the aforesaidobservations and made an application under s. 561-A Code of Criminal Procedurefor expunging them. The observations in respect of which the State of UttarPradesh felt aggrieved were grouped under heads (a), (b) and (c) in paragraph 4of the petition which we may now set out here :

(a) 'If I had felt that withmy lone efforts I could have cleaned this augean stable, which is the policeforce, I would not have hesitated to wage this war single-handed.'

(b) 'That there is not asingle lawless group in the whole of the country whose record of crime comesanywhere near the record of that organised unit which is known as the IndianPolice Force.'

(c) 'Where every fishbarring perhaps a few stinks, it is idle to pick out one or two and say that itstinks.'

The main ground which the State of Uttar Pradesh urged in support of theirpetition was that 'the observations over the entire police force, bringthe same into contempt, lower its prestige in the eyes of mankind, have atendency to interfere with the administration of the country and injure thesecurity of the State.' The State further alleged that the observationsmade were not a necessary part of, and could well be separated from, the mainorder of the learned Judge on the notice issued to Mohmmad Naim and that therewas no evidence in the record of any kind upon which those observations couldbe based.

4. Mr. Justice Mulla heard the application and came to the following mainconclusions :-

(1) That the State of UttarPradesh was not an aggrieved party and had no locus standi to make anapplication under s. 561-A Code of Criminal Procedure in respect of theobservations made.

(2) The observations requiredonly one clarification namely, that they were made in respect of the policeforce of Uttar Pradesh and not of the whole country.

(3) The observation made under(a) above would have been expunged, if the aggrieved party had approached thelearned Judge.

(4) As to the rest of theobservations, there were no good grounds for expunging them because they werebased upon the learned Judge's personal knowledge and experience and did notcontain any over statements.

He accordingly dismissed the application of the State. The State then movedthe High Court for a certificate of fitness under Art. 134(1)(c) of theConstitution of India and being unsuccessful there, asked for special leave ofthis court under Art. 136 of the Constitution. This court granted special leaveon April 12, 1962. The present appeal has been preferred from the order of thelearned Judge rejecting the application under s. 561-A Cr. P.C., in pursuanceof the leave granted by this court.

5. The first point which falls for consideration is whether the State ofUttar Pradesh had locus standi 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 oraffect the inherent power of the High Court to make such orders as may benecessary to give effect to any order under this Code, or to prevent abuse ofthe process of any Court or otherwise to secure the ends of Justice.'

6. It is now well settled that the section confers no new powers on the HighCourt. It merely safeguards all existing inherent powers possessed by a HighCourt necessary (among other purposes) to secure the ends of justice. Thesection provides that those powers which the court inherently possesses shallbe preserved lest it be considered that the only powers possessed by the courtare those expressly conferred by the Code and that no inherent powers hadsurvived the passing of the Code (see Jairam Das v. Emperor , and Emperor v. Nazir Ahmad , We shall presentlydeal with the question whether the High Court has inherent power to expunge theremarks made by it or by a lower court to prevent abuse of the process of anycourt or otherwise to secure the ends of justice. Assuming that the High Courthas such power, the question now before us is, can the State Government invokethis inherent jurisdiction of the High Court The learned Judge of the HighCourt gave two reasons for his finding that the State Government had no locus standito make an application under s. 561-A Cr. P.C. The first reason he gave wasthat the State Government could not be said to have been aggrieved by theobservations made by him. The second reason he gave was that the Staterepresented the executive as well as judiciary and therefore it would beanomalous if it made an application under s. 561-A Cr. P.C., for such anapplication would be by the State through its executive to expunge remarks madeby it as the judiciary.

7. We do not think that any of these two grounds is tenable. Under Art. 154of the Constitution the executive power of the State is vested in the Governorand shall be exercised by him either directly or through officers subordinateto him. The expression 'State Government' has a meaning assigned toit under the General Clauses Act, 1897 (X of 1897). Briefly stated, it meansthe authority or person authorised at the relevant date to exercise executivegovernment in the State, and after the commencement of the Constitution, itmeans the Governor of the State. It is not disputed that the police departmentis a department of the State Government through which the executive power ofthe State as respects law and order is exercised. If the State Governmentconsiders that the observations made by a court in respect of a department orofficers through whom the State Government exercises its executive powers aresuch as require invoking the inherent power of the High Court under s. 561-ACr. P.C., it is difficult to see why the State Government cannot be consideredto be the party aggrieved by such observations. Furthermore, it is not disputedthat the State is a juristic person. The Code of Criminal Procedure itselfrecognises in some of its provisions the rights of the State Government; suchas, the right to give sanction and to move the court for necessary action etc.the State Government being the authority or person authorised to exerciseexecutive Government at the relevant date. Some of these provisions arecontained in Sections 144(6), 190(2), 190(3), 196, 196-A, 197 etc. of the Code. Oneoutstanding example is furnished by s. 417 of the Code which gives to the StateGovernment a right of appeal to the High Court from an original or appellantorder of acquittal passed by any court other than a High Court. It is also notdisputed that the State Government may invoke the revisional jurisdiction ofthe High Court under s. 439 of the Code, though that section is general in itsterms and does not specifically mention the State Government. Therefore, we failto see why the State Government cannot make an application under s. 561-A. Wesee nothing anomalous in the State Government moving the court for redress whenit feels aggrieved by remarks made against it. The State Government may make anapplication to the High Court under s. 561-A in the same way as it may directthe Public Prosecutor to present an appeal on its behalf to the High Courtunder s. 417 or may invoke through one of its officers the jurisdiction of theHigh Court under s. 439 of the Code. We have, therefore, come to the conclusionthat the finding of the learned Judge that the State Government has no locusstandi to make the application under s. 561-A Cr. P.C. is erroneous in law. Ourattention was drawn to some cases where the State Government made suchapplications in a pending appeal. No question was however raised thereinwhether the State Government had locus standi to make the applications;therefore, we have thought fit to decide the point on principle rather than oncases where such applications were made.

8. The second point for consideration is this, has the High Court inherentpower to expunge remarks made by itself or by a lower court to prevent abuse ofthe process of any court or otherwise to secure the ends of justice There wasat one time some conflict of judicial opinion on this question. The position asto case-law now seems to be that except for a somewhat restricted view taken bythe Bombay High Court, the other High Courts have taken the view that thoughthe jurisdiction is of an exceptional nature and is to be exercised in mostexceptional cases only, it is undoubtedly open to the High Court to expungeremarks from a judgment in order to secure the ends of justice and preventabuse of the process of the court [see Emperor v. Ch. Mohd. Hassan A.I.R.(1943) Lah. 298.; State v. Chhotay Lal 1955 A.L.J. 240; Lalit Kumar v. S.S.Bose : AIR1957All398 ; S. Lal Singh v. State ; Ramsagar Singh v. Chandrika Singh : AIR1961Pat364 ; and In reRamaswami : AIR1958Mad305 . The view taken in the Bombay High Courtis that the High Court has no jurisdiction to expunge passages from thejudgment of an inferior court which has not been brought before it in regularappeal or revision; but an application under s. 561-A Cr. P.C. is maintainableand in a proper case the High Court has inherent jurisdiction, even though noappeal or revision is preferred to it, to correct judicially the observationsmade by pointing out that they were not justified, or were without foundation,or were wholly wrong or improper [see State v. Nilkanth Shripad Bhave : AIR1954Bom65 . In State of U.P. v. J. N. Bagga (Judgment in Cr. A. 122/1959of this court decided on January 16, 1961.), this court made an order expungingcertain remarks made against the State Government by a learned Judge of theHigh Court of Allahabad. The order was made in an appeal brought to this courtfrom the appellate judgment and order of the Allahabad High Court. In State ofU.P. v. Ibrar Hussain (Judgment of this court in Cr. As. 148/1957 and 4 of 1958decided on April 28, 1959.), this court observed that it was not necessary tomake certain remarks which the High Court made in its judgment. Here again theobservation was made in an appeal from the judgment and order of the HighCourt. We think that the view taken in the High Courts other than the HighCourt of Bombay is correct and the High Court can in the exercise of itsinherent jurisdiction expunge remarks made by it or by a lower court if it benecessary to do so to prevent abuse of the process of the court or otherwise tosecure the ends of justice; the jurisdiction is however of an exceptionalnature and has to be exercised in exceptional cases only. In fairness tolearned counsel for the appellants we may state here that he has submittedbefore us that the State Government will be satisfied if we either expunge theremarks or hold them to be wholly unwarranted on the facts of the case. He hassubmitted that the real purpose of the appeal is to remove the stigma which hasbeen put on the police force of the entire State by those remarks the truth ofwhich it had no opportunity to challenge.

9. The last question is, is the present case a case of an exceptional naturein which the learned Judge should have exercised his inherent jurisdictionunder s. 561-A Cr. P.C. in respect of the observations complained of by theState Government If there is one principle of cardinal importance in theadministration of justice, it is this : the proper freedom and independence ofJudges and Magistrates must be maintained and they must be allowed to performtheir functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that inexpressing their opinions Judges and Magistrates must be guided byconsiderations of justice, fairplay and restraint. It is not infrequent thatsweeping generalisations defeat the very purpose for which they are made. Ithas been judicially recognised that in the matter of making disparaging remarksagainst persons or authorities whose conduct comes into consideration beforecourts 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 anopportunity of explaining or defending himself; (b) whether there is evidenceon record bearing on that conduct justifying the remarks; and (c) whether it isnecessary for the decision of the case, as an integral part thereof, toanimadvert on that conduct. It has also been recognised that judicialpronouncements must be judicial in nature, and should not normally depart fromsobriety, moderation and reserve.

10. In the case before us the learned Judge chose to make sweeping andgeneral observations against the entire police force of the State. The casebefore him related to only one police officer, Mohammad Naim, about whoseconduct the learned Judge was undoubtedly justified in making adverse remarks.The learned Judge himself realised that the remarks which he had made were muchtoo general and sweeping in character, because in his later order he said thatthe remarks were meant for the police force in Uttar Pradesh only and hefurther said he would have expunged the remarks under the head (a) referred toearlier, if the party aggrieved had come before him. We consider that theremarks made by the learned Judge in respect of the entire police force of theState were not justified on the facts of the case, nor were they necessary forthe disposal of the case before him. The learned Judge conceded that thegeneral remarks he made were not based on any evidence in the record; he saidthat he drew largely from his knowledge and experience at the Bar and on theBench. Learned counsel for the appellant has very frankly stated before us thatthe learned Judge has had very great experience in the matter of criminalcases, and was familiar with the method of investigation adopted by the localpolice. He has contended, however, that it was not proper for the Judge toimport his personal knowledge into the matter. We do not think that in thepresent case we need go into the question as to the extent to which a Judge orMagistrate may draw upon his experience in assessing or weighing evidence oreven in judging the conduct of a person. We recognise the existence ofexceptional circumstances in a case where the Judge or Magistrate may have todraw upon his experience to determine what is the usual or normal conduct withregard to men and affairs. We say this with respect, but it appears to us thatin the present case even allowing for the great experience which the learnedJudge had in the matter of criminal trials, his statement that 'there wasnot a single lawless group in the whole country whose record of crime cameanywhere near the record of that organised unit which is known as the IndianPolice Force' was wholly unwarranted and, if we may say so, betrayed alack of judicial approach and restraint. The learned Judge referred to no materialon which this observation was based, nor did he say that his experience ofcriminal trials gave him an occasion to compare the records of crime of variouslawless groups in the State vis-a-vis the Police Force. To characterise thewhole Police Force of the State as a lawless group is bad enough; to say thatits record of crime is the highest in the State is worse and coming as it doesfrom a Judge of the High Court, is sure to bring the whole administration oflaw 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 wasjustifiably aggrieved by such a sweeping remark. Similar in nature is theremark about the stinking of 'every fish in the police force barring,perhaps, a few.' The word 'perhaps' seems to indicate that evenabout the few, the learned Judge had some doubt. We consider that thesesweeping generalisations defeat their own purpose. They were not necessary forthe disposal of the case against Mohammad Naim. It would have been enough forthe learned Judge to say that when a large number of police officers wereresorting to an objectionable method of investigation, it was unnecessary topick out one petty officer and prosecute him for doing what several others haddone with impugnity. It was wholly unnecessary for the learned Judge to condemnthe entire police force and say that their record of crime was the highest inthe country. Such a remark instead of serving the purpose of reforming thepolice force, which is the object the learned Judge says he had in mind, islikely to undermine the efficiency of the entire police force. We think that inhis zeal and solicitude for the reform of the police force, the learned Judgeallowed himself to make these very unfortunate remarks which defeated the verypurpose he had in mind. Having said all this, we must add, lest we bemisunderstood, that the conduct of Mohammad Naim and officers like him deservesthe severest condemnation, and the learned Judge rightly observed that suchconduct required very serious notice by superior officers of the Police. It isdifficult to avoid the reflection that unless an example is made of such officersby taking the most stringent action against them, no improvement in policeadministration is possible.

11. For the reasons given above, we have come to the conclusion, aconclusion which justice demands, that the present case is one of thoseexceptional cases where the inherent jurisdiction of the court should have beenexercised and the remarks earlier referred to as (a), (b) and (c) should havebeen expunged. We accordingly allow the appeal and direct that the aforesaidremarks do stand expunged from the order of the learned Judge dated August 4,1961.

12. Appeal allowed.


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