(1) Earlier on 8.2.85, I passed an order quashing a complaint u/s 120-B Indian Penal Code and S. 5 of the Imports and Exports (Control) Act of 1947. This was done in Cr. R. No. 26 of 1982 Pyare Lal Aggarwal v. J.P. Sharma etc. Cr. Misc. (M) 1266/84 (Vinod Kumar Jain etc. v. J.P. Sharma and Crl. M (M) 145/84 (Arun Kumar Ramniklal Mehta etc. v. J.P. Sharma In this judgment certain observations were made which seems to have offended and hurt the State which has now come up with this petition praying that some of the remarks and observations made may be expunged from the judgment. Subsequent to this petition another petition Cr.M(M) No. 1231/85 was also moved in which one more sentence was sought to be expunged. This sentence appears at page 35 of the judgment and reads : 'What followed in the words of Mr. Singh, learned counsel in two petitions was detention and the present prosecution.' In this amended petition it was stated that if the words 'State cannot be tolerated as an immoral litigant' appearing at page 31 of the judgment are expunged the word 'It' immediately following thereafter may be substituted with the word 'State'.
(2) It is necessary to indicate the paras or the parts of paras regarding which expunction is sought. (1) 'All legitimate contracts under the abrogated policy has to be a first charge on the fresh policy and the licenses even though issued and revalidated under the fresh policy could legitimately be used for the fulfillment of such contractual obligations. It would be immoral on the part of the State to say no to it.' (Page 27 of judgment); (2) 'State cannot be tolerated as an immoral litigant.' (page 31 of judgment); (3) 'It. was only after a public debate started about the beef tallow being allowed to be imported and, after a press report that Vanaspati was being adulterated with beef tallow, that orthodox sentiments were deeply shocked and the matter became a hot subject for Parliament and press. It was in this state of affairs that the State Machinery started witch hunt and found out a conspiracy to contrivance the law, and the petitioners were made scapegoats.' (Page 35 of judgment); (4) 'In all fairness to to its citizens, the State, after the latest C.B.I. report should itself have withdrawn the complaint, but it seems that our State machinery has lost all initiative and drive and nobody is prepared to take responsibility for doing things as law and justice require of them. One wonders, when this malady afflicting the State machinery will be cured If the rust of this machinery is not removed it is bound to result in disaster. Why does the State wait for courts to provide relief due to a citizen. After all, doing of justice is not our monopoly. It is hardly a desirable situation to trust courts alone for dispensing justice, why can't it be done at all levels of administration If we want to emerge as a democratic and civilized society then justice must emerge from all streams of the State.' (page 35-36 of judgment), (5) 'To my mind, it is not a prosecution but persecution. Procedural laws are meant to further the ends of justice and, not to frustrate the same. State is a mighty authority. Considering its might, and resources it is capable of even defeating the objects for which it claims to exist. Courts have to closely watch its functions. It is our duty to stop the States from acting in a manner unwarranted by law and justice. If State by a wrong policy decision lands into difficulties it is not expected to make a citizen a scapegoat and get him beheaded in order to steer clear out of the situation. The present prosecution to my mind, is absolutely unwarranted and uncalled for. It can only erode the faith of the citizen in the promises held out by State and one of its direct result will be that the country's strides to go ahead will be retarded. If industrialists, exporters and importers lose faith in the promises of the State it can also result in the closure of industries and in resultant unemployment.' (page 36-37 of judgment), (6) 'In this case facts are so overwhelmingly weighing against the complainant that any rigid and inflexible legal view is bound to frustrate the interests of justice and result in the abuse of the process of the court and, that too, at the hands of State which, is duty bound to do justice to its citizens. After all, what has happened is that, in terms of the State's policy a citizen has acted and entered into a contract which under that policy is valid. How does the State enable its citizen to honour that commitment under the changed policy? If State does not make a provision in the changed policy about it, the policy to that extent may by itself be questionable. This is a case of compulsions. 'Hang the citizen because the atmosphere in the country wants it to be done.' Is it a rule of law Can this be a justification for prosecution State is duty bound to provide for such eventualities and if no provision is made let none suffer. I can only make observations and say what I feel should be done in the hope that State apparatus gives a serious thought to how it should function to avoid a situation such as this.' (Pages 37-38 of judgment).
(3) Mr. N.S. Mehta has urged that these remarks are unfair and are neither necessary nor relevant for the decision of the case and that it is only in public interest to delete these remarks from the judgment as that alone can restore the faith of general public in the machinery of the Central Govt. According to him these observations are not necessary for the disposal of the case and should not have been made in the absence of Central Govt. being a party and since the observations thus made have seriously eroded the faith of the general public in the Central Govt. it is but in the interest of justice to expunge these remarks and to restore that faith which is so essential for the smooth governance of the country.
(4) Dr. Y.S. Chitley, who has appeared for Arun Kumar and Co. urged before me that these observations have neither propounded a legal doctrine nor are in the nature of criticism of public functionaries who were party to the petition and that court is within its rights to make such observations which are essentially based on the facts and circumstances of the case.
(5) Mr. D.C. Mathur appearing for Vinod Jain and others has in all fairness stated that he has no objection to the expunction of the remarks which have no direct bearing on the decision of the case and if they do not have the effect of crippling the judgment. In short, he fairly conceded that if there are observations of the general nature which do not form an integral part of the judgment he would have no objection if these are expunged.
(6) The first question that arises for consideration is as to whether the court has jurisdiction to expunge the remarks. My attention was invited by Mr. N.S. Mehta to the case of State of U.P. v. Mohammad Nairm : 2SCR363 . I may profitably make reference to certain observations made in para 10. These are as follows:-
'If there is one principle of cardinal importance in the administration of justice, it is this, the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalizations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons of authorities whose conduct comes into consideration before courts 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 an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks, and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve.'
(7) The Power of the Court to expunge its remarks is not in controversy. After considering the aforesaid observations of the Supreme Court and after giving my careful and anxious consideration to the rival contentions I am of the view that the petitioner is within his rights and can legitimately ask for the expunction of the observation which may either not be based on record or which may have been passed in his absence without having an opportunity to defend or even which may not be relevant or necessary for the disposal of the case. The petitioner can also legitimately ask for expunction of such of the observations which may be offending and hurting. The only objection in such a situation would be that the remarks sought to be expunged may not be deleted if they form an integral part of the judgment or if they will have the effect of crippling the judgment or in any way changing the character of the judgment. To that extent of course care has to be taken. I want to make it clear that the basic facts with which this court was concerned while quashing the prosecution was to do justice and by quashing the prosecution ends of justice have been achieved. But if there are remarks in the judgment which are offending and are neither relevant nor necessary for the the disposal of the case and furthermore are observations of the general nature there can be no serious objection to their expunction if the basic character of the judgment remains intact.
(8) I have gone through the judgment from which observations mentioned in the petition are sought to be extracted and to my mind barring a few observations mentioned in the petition, if others are deleted there will be no change in the character of the judgment and the judgment will in no way get crippled. Despite deletion of these observations it will remain a coherent document. On further careful consideration I find that petitioner is entitled to the following relief. The expunction of the remarks sought and appearing at pages 27 and 31 is allowed. Similarly, the remarks appearing at page 35 of the judgment and mentioned in para 3 of the petition are also expunged. I would also direct expunction of remark mentioned in para 42nd appearing on pages 35-36 of the judgment but here I would like to mention that I would not like to delete the sentence 'in all fairness to its citizens, the State, after the latest C.B.I, report should itself have withdrawn the complaint.'. But it has become essential as there is no full stop and since it forms an integral part of para, there is no way out for me but to allow the expunction of this sentence as well. I would also order expunction of remarks appearing on pages 36 and 37 of the judgment, a mention whereof has been made in para 5 of the petition excepting one line which reads ' The present prosecution to my mind, is absolutely unwarranted and uncalled for.'
(9) In so far as observations at pages 37 and 38 of the judgment and mentioned in para 6 of the petition are concerned, only the following last sentences deserve to be expunged :
'This is a case of compulsions. 'Hang the citizen because the atmosphere in the country wants it to be done.' Is it a rule of law? Can this be a justification for prosecution State is duty bound to provide for such eventualities and if no provision is made let none suffer I can only make observations and say what I feel should be done in the hope that State apparatus gives a serious thought to how it should function to avoid a situation such as this.'
The observations preceding to these, as mentioned in para 6 of petition, do not deserve to be expunged as from my point of view they do form an integral part of the judgment. These are ;
'In this case facts are so overwhelmingly weighing against the complainant that any rigid and inflexible legal view is bound to frustrate the interests of justice and result in the abuse of the process of the court and, that too, at the nance of State which, is duty bound to. do justice to its citizens. After all, what has happened is that, in terms of the State's policy a citizen has acted and entered into a contract which under that policy is valid. How does the State enable its citizen to honour that commitment 'under the changed policy If State does not make a provision in the changed policy about it, the policy to that extent may by itself be questionable.'
(10) To put the record straight I would like to state that at page 31 of the judgment after the words 'State cannot be tolerated as an immoral lit:gant' which have been expunged, the Word immediately following 'It' shall be read as 'State' With these remarks the petition is disposed of and the remarks and observations to the extent indicated above shall stand expunged from the judgment and it shall be treated as if these never formed a part of the judgment.