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Delhi Administration Vs. Pratapchand Bachumal Ramchandani and ors. - Court Judgment

LegalCrystal Citation
SubjectCriminal
CourtGujarat High Court
Decided On
Judge
Reported in(1981)22GLR225
AppellantDelhi Administration
RespondentPratapchand Bachumal Ramchandani and ors.
Cases ReferredNiranjan Singh and Anr. v. Prabhuka
Excerpt:
.....gandhi bad come to garland the statue of dr. it is alleged in this application, that the learned chief judicial magistrate bad granted seven days police remand up to 24-4-1980. during this time, it was stated that the police were engaged wiih various court matters. 13. in the light of the aforesaid well-settled legal position, the learned advocate general, who appeared for the petitioner, i. the action of delhi police in taking away all the accused to delhi deserves to be condemned. 15. a strong grievance was also made about certain remarks made by the learned chief judicial magistrate, baroda and the said objectionable paragraph is in the following words: 18. in substance, the submission of the learned advocate general was that the learned chief judicial magistrate, while passing the..........code of criminal procedure) for expunction of certain remarks or observations made by the learned chief judicial magistrate, baroda while disposing of an application for police custody of the opponents for seven days. before i mention the facts giving rise to the present petition, i may briefly indicate the position of law in regard to the expunging of remarks made by the subordinate judges.2. i may briefly refer to the reported decision of the full bench of the bombay high court in the case of the state of bombay v. nilkanth shripad bhave and anr. reported in : air1954bom65 .3. in paragraph 2 of the said judgment, it is observed as follows:therefore, in our opinion, as section 561a was enacted to emphasise the fact that the high court has the widest jurisdiction to pass orders to.....
Judgment:

A.N. Surti, J.

1. This petition is filed by the Delhi Administration (Delhi) under Section 482 Code of Criminal Procedure, 1973 (which is pari-materia with Section 561A of the Old Code of Criminal Procedure) for expunction of certain remarks or observations made by the learned Chief Judicial Magistrate, Baroda while disposing of an application for police custody of the opponents for seven days. Before I mention the facts giving rise to the present petition, I may briefly indicate the position of law in regard to the expunging of remarks made by the subordinate Judges.

2. I may briefly refer to the reported decision of the Full Bench of the Bombay High Court in the case of The State of Bombay v. Nilkanth Shripad Bhave and Anr. reported in : AIR1954Bom65 .

3. In paragraph 2 of the said judgment, it is observed as follows:

Therefore, in our opinion, as Section 561A was enacted to emphasise the fact that the High Court has the widest jurisdiction to pass orders to secure the ends of justice, Section 561A must give the power to this Court to entertain applications which are not contemplated by Criminal Procedure Code. Therefore, if the High Court feels that ends of justice require that an order should be made in an application, although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary orders to secure the ends of justice.

4. In paragraph 3, the Full Bench of the Bombay High Court proceeds to observe as follows:.In our opinion, the inherent power that the High Court possesses is, in proper cases, even though no appeal or revision may be preferred to this Court, to judicially correct the observations of the lower Court by pointing out that the observations made by the Magistrate were not justified or were without any foundation or were wholly wrong or improper.

5. In paragraph 4, the Full Bench also observes as follows:.It is difficult to understand, if the High Court has no inherent jurisdiction to alter the judgment of another Court, how that jurisdiction arises merely because the matter comes before the High Court in appeal or revision. Either the Court has inherent jurisdiction or it has not. If it has inherent jurisdiction, it can be exercised either in appeal or in revision, or, as we have just pointed out, by an independent application made by the party under Section 561A.

6. In the last paragraph of the said judgment, the Bombay High Court has observed as under:.A Judge, as we said before, however humble and however junior, is entitled to his own opinion with regard to matters that corne before the Court. Judicial corrections should be restricted to cases where the decision is wrong or erroneous, but if the decision is right or if no decision is arrived at, then this Court should interfere under Section 561A in the most exceptional and the rarest cases.

7. In the case of Dr. Raghubir Saren v. State of Bihar and Anr. reported in : 1964CriLJ1 , the Supreme Court has observed as follows:

Moreover, mere expression by the High Court of its displeasure at the offending observations of a Subordinate Court cannot even be regarded as amounting to 'judicial correction' of the error committed by such Court. For, despite the disapprobation, the remarks continue to be there on the record of the subordinate Court. The form normally adopted by a superior Court for 'judicial correction' of an error of a subordinate Court does not consist of mere expression of its disagreement with the view taken by the subordinate Court but of effacing that error and thus depriving it of its legal effect. That is precisely what ought to be done with respect to irrelevant remarks of a subordinate Court when they are found to be unjustifiable and harmful. The appropriate form in which this part of the judicial process may be carried out would be either by expunging them or directing them to be expunged so that they would cease to have any effect.

There can be no doubt that the judgment of a tribunal empowered by law to adjudicate upon and decide any matter affecting the rights of parties is inviolable unless the law allows it to be questioned or interfered with. In such a case the judgment can be challenged only and interfered with only by the specified authority and to the extent permissible by the express provisions of law. No other Court, not even the High Court, unless expressly permitted by law can entertain a challenge or exercise any power with respect to a judgment. Its inherent power is not exercisable for this purpose because what is made final or inviolable by law is beyond the purview of such power. But the inviolability which attaches to a judgment must necessarily be confined to its integral parts, that is the verdict and reasons therefor. It cannot extend to matters which though ostensibly a part of the judgment are not in reality its integral parts. It is because of this that the majority of the High Courts holds that they have always had the power to expunge passages from the judgments of subordinate Courts in certain circumstances. In other words that this power has always been there and can be resorted to for securing the ends of justice. It is significant to note that despite this, though the Code was amended materially in 1955 the legislature did not indicate in Section 561A or any other provision that this power did not exist or is taken away. Clearly the High Courts, by expunging remarks from an order or judgment of a subordinate Court would not in any event be altering it on merits or in any matter of substance but be only deleting from it matter which being alien to the matter before the Court ought never to have been there. When such only is the effect of what the High Court does, can prohibition to this course be inferred from the fact that Sections 423 and 439 which deal with appellate and revisional powers, are silent about such matters? We are clear that they do not exclude such power. As already stated, expunction of irrelevant remarks does not amount to the alteration or amendment of a judgment or an order of a subordinate Court. No doubt, the exercise of such power will have the effect of taking out of the judgment or order something which was there before and thus in a limited way to interfere with the content of the document embodying the judgment or order. But hearing in mind the paramount importance of securing the ends of justice the High Court must be deemed to have such power.

8. In view of the aforesaid settled legal position of law, I do not propose to refer to a plethora of such cases on the point of law concerning the matter at issue. Suffice it to refer to the latest judgment of the Supreme Court in the case of Niranjan Singh and Anr. v. Prabhuka' Rajaram Kharote and Ors. reported in 1980 Cri.L.J. 426. In paragraph 3 of the said judgment, the Supreme Court has observed as follows:

We were constrained to make the observations above because the Sessions Judge, quite unwarrantedly, discussed at prolix length the probabilities of the police party's exculpatory case and held:

'So it is reasonable to hold that there was a scuffle and resistance offered by the victim Amarjeet Singh before shots were fired at his person by the accused No. 1.' 'Detailed examination of the evidence and elaborate documentation of the merits should be avoided while passing orders on bail applications. No party should have the impression that his case has been prejudiced. To be satisfied about a prima facie case is needed but it is not the same as an exhaustive exploration of the merits in the order itself.

9. A few facts, relevant to the present petition, may now be stated.

10. On 14-4-1980 the Prime Minister Shrimati Indiraben Gandhi bad come to garland the statue of Dr. Ambedkar. A portrait of Dr. Ambedkar was displayed below the stasue of Dr. Ambedkar. Mrs. Gandhi garlanded the portrait and she addressed the audience. At about 9-45 p.m. when she was returning to her car through path way one open spring actuated knife was thrown at her by the prime accused Ram Bulchand. He was arrested. The offence was registered under Section 307 I.P.C. and Section 27 of Arms Act. The said accused made some statement before the police and gave the names of the opponents-as accused, and stated that they instigated him to commit the murder of the P.M. Hence all these opponents accused were arresied by Baroda Police on receiving information from Delhi police and they were produced before the learned Chief Judicial Magistrate on 16-4-1980. Then the police gave an application for police remand and on 18-4-1980. The learned Chief Judicial Magistrate pasted an order granting remand application, and the accused were remanded to police custody till 24-4-1980 and the accused were to be produced before the lower Court on 24-4-1980 at 3-30 p. m. On 22-4-1980 the accused along with prime accused Ram Bulcband were taken by train to Delhi and they all reached Delhi on 73-4-1980. Thereafter, the accused had filed a petition for special leave to appeal (Criminal) No. 1203 of 1980, in the Supreme Court of India. It came for hearing on 24-4-1980 before the Honourable the Chief Justice and Honourable Mr. Justice D.A. Desai. Their Lordships released all the opponents accused on bail on their personal recognition in the sum of Rs. 5,000- each and they were directed to present themselves before the Chief Judicial Magistrate. Baroda on 25-4-1980 at 3-00 p.m. All the accused came to Baroda on 25-4-1980 at 2-15 p.m. They presented themselves before the learned Chief Judicial Magistrate, Baroda and obeyed the order of the Supreme Court.

11. Then the Delhi police gave the second remand application on 25-4-1980 on which the learned Chief Judicial Magistrate passed an order on May 1, 1980, wherein according to the Delhi Administration, certain objectionable remarks or observations are made by the learned Chief Judicial Magistrate. It is alleged in this application, that the learned Chief Judicial Magistrate bad granted seven days police remand up to 24-4-1980. During this time, it was stated that the police were engaged wiih various Court matters. That the police did sincere efforts to conduct investigation speedily. Various house searches were made even at the residences of several persons viz. in shops, factories and offices. In course of investigation, the police had seined several documents. The opponents accused were interrogated for two to three days. That the prime accused Ram Bulchand was admitted in hospital at Baroda on 17-4-1980. He could not be confronted with the statements made by opponents-accused. That the police could not interrogate the opponents-accused at length, to find out the truth and real facts and reach some real conclusion. It was also stated that the police were handicapped due to the bail matter in the Supreme Court at Delhi on 23rd and 24th April, 1980. That the opponents-accused could not be questioned to the satisfaction of the police. That, according to the police, opponents accused were frequently visiting Delhi in furtherance of their common object. According to the petitioner, there were some unexplained discrepancies in their statements to find out incriminating evidence and to warrant a deep probe, the police found the most of the prime accused version abou this incident was true. Under the circumstances, the police felt that further interrogation was necessary and hence, sufficient opportunity should have been given to the police for further remand of the opponents for seven days, and hence, a transfer order to produce the accused before the M. M. at Delhi was prayed for.

12. The police had also submitted the necessary diary before the learned Chief Judicial Magistrate and the same was also perused by the learned Chief Judicial Magistrate. After hearing the learned Advocates, the learned Chief Judicial Magistrate passed the order on the said application on May 1, 1980, and it is alleged by the petitioner before me that certain observations made by the learned Chief Judicial Magistrate against the Delhi Administration and the police were not justified or were without any foundation or were wholly wrong or improper, and hence, they should be expunged or judicially corrected.

13. In the light of the aforesaid well-settled legal position, the learned Advocate General, who appeared for the petitioner, i.e. Delhi Administration, very fairly argued the petition. He, at the very outset, made a statement at the bar, that he readily conceded the right of an humble Judge or a small Judge, to criticise fearlessly the acts of any party to a proceeding or the acts of any investigating agency, but, at the same time he strongly urged, that it would be improper for any Magistrate to over step the judicially circumscribed limits of his right to criticise any party who was not before him. He stingily urged, that in absence of any party, if any observations are made against the absentee-party, the same would obviously result into the flagrant exticise of such a right, and the observations made by the learned Magistrate may be unjustified and harmful to the absentee-party.

14. Having made the aforesaid statement at the Bar, the learned Advocate General invited my attention to certain impugned passages from the said order passed by the learned Chief Judicial Magistrate, Baroda. The learned Advocate General invited my attention to a portion from paragraph 11 of the impugned order which is in the following terms:.The police (Delhi) has no business to take Kam Bulchand and all the accused to Delhi. For what purpose they were removed from my jurisdiction?

'It seems to me that the Delhi police in spite of all interrogation of these accused found nothing and they whisked away all the accused to Delhi with some ulterior motive. The action of Delhi police in taking away all the accused to Delhi deserves to be condemned. I had given sufficient time but deliberately they took away all the accused to Delhi. They did not take my permission stating that they wanted to take the accused to Delhi. Apart from legal aspect, even courtesy demands that they should have sought my permission or my order requesting me that their investigation is complete and now they want to take the accused to Delhi for some fact finding, I must say that there was no conspiracy at all and the Delhi police wanted to prove conspiracy by hook or by crook and with this ulterior motive, they whisked away all the accused including the prime sick accused to Delhi. It seems to me that they wanted to please the Delhi Government or they must have some order from higher ups.

15. A strong grievance was also made about certain remarks made by the learned Chief Judicial Magistrate, Baroda and the said objectionable paragraph is in the following words:.This Ram Bulchand is in the habit of making allegations by publishing pamphlets. Can any one believe his word? On the statement of this foolish, idiot and a man of imbalance mind all these five accused were arrested and they were kept in judicial custody and in police custody too. I am of the view that the prime accused Ram Bulchand made false statement before Delhi Police and all these innocent persons of Baroda were arrested. The question arises whether these five persons or any of them would instigate this idiot Ram Bulchand (prime accused) to commit murder of Smt. Indira Gandhi. It is sheer non-sense to talk about conspiracy.

16. An objection was also taken by the learned Advocate General in regard to the following remarks made by the learned Chief Judicial Magistrate, Baroda:.But in Baroda, the Delhi Police got all these pamphlets and they should have studied the same. If they had done so, I am sure that they would not have asked for another remand....

17. An objection was also taken by the learned Advocate General for the following observations in the said order of the learned Chief Judicial Magistrate:

In my view there is no case for remanding the accused to police custody. This is a fit case wherein the police should have filed an application under Section 169 of the Criminal Procedure Code.

18. In substance, the submission of the learned Advocate General was that the learned Chief Judicial Magistrate, while passing the order, should not have condemned the acts of the investigating agency by unnecessarily referring to Delhi Government. He urged, that in this behalf, the learned Chief Judicial Magistrate obviously committed an error in observing that the Delhi police wanted to please the Delhi Government or that they must have some orders from higher-ups. Another criticism levelled by the learned Advocate General before me was, that the learned Chief Judicial Magistrate ought not to have used strong words like 'whisked away' or that 'the action of the Delhi police deserves to be condemned.'

19. The learned Advocate General also vehemently criticised the expressions of the learned Chief Judicial Magistrate like 'by hook or by crook' and 'with an ulterior motive'. The learned Advocate General also criticised the observations made by the Chief Judicial Magistrate when he says in his order, that the prime accused Ram Bulchand had made a false statement to Delhi police and all these innocent persons from Baroda were arrested. In this behalf, the submission of the learned Advocate General was, that it was not open to the Chief Judicial Magistrate to prejudge an issue, particularly when, in his submission, the investigation was not complete. He also made a strong grievance about the learned Chief Judicial Magistrate's observation that the prime accused Ram Bulchand had made a false statement before the Delhi police and all these innocent persons from Baroda were arrested.

20. The learned Advocate General also urged that the learned Chief Judicial Magistrate should not have observed in his order, that the Delhi police should have studied the various pamphlets referred to by the learned Chief Judicial Magistrate in the order. The learned Advocate General also made a grievance about the observation of the learned Chief Judicial Magistrate when he says in his order that this is a fit case wherein the police should have filed an application under Section 169 of the Criminal Procedure Code.

21. Having carefully considered the grievances made by the Delhi Administration in the present petition, I am convinced that in the instant case, the learned Chief Judicial Magistrate should not have observed in his judgment that the police wanted to please the Delhi Government or they must have some orders from higher-ups. It may be emphasised that' Delhi Government was not in charge of the investigation. It may be not iced that the Delhi Government had nothing to do with the various steps of investigation conducted by the investigating agency. It may be emphasised, that the Delhi Government was not a party before the learned Chief Judicial Magistrate Baroda. It may also be emphasised that there was no tittle of material on the record of the case to warrant a conclusion that the investigating agency might have desired to have some orders from the higher-ups. Under these circumstances, I am convinced beyond any doubt, that the said observations made by the learned Chief Judicial Magistrate implicating or involving the Delhi Government were beyond the scope of his jurisdiction and the legitimate exercise of his right to criticise a party before him, and have obviously fallen outside the judicially circumscribed limits of his right to criticise a party or witness before him.

22. There is also lot of force and substance in the grievance made by the learned Advocate General in urging before me, that the use of certain words by the learned Chief Judicial Magistrate like 'condemnation' and 'ulterior motive' are devoid of judicial sobriety. The learned Chief Judicial Magistrate should have avoided the same, particularly when, on the record of the case, there was no tittle of material to come to the conclusion that the investigating agency had any malice or the requisite mens-rea in conducting the investigation. Under these circumstances, there is lot of substance in the submissions made by the learned Advocate General, that when the learned Chief Judicial Magistrate exercised his right to fearlessly criticise the acts of the investigation, he should have exercised that rights with a considerable amount of judicial sobriety. In his submission, the said observations made by the learned Chief Judicial Magistrate would obviously cause considerable harm to the investigating agency.

23. When the aforesaid submissions were made by the learned Advocate General, I did call upon Mr. Vyas, the learned advocate appearing on behalf of opponent No. 1, the accused as to how the aforesaid criticism of the learned Chief Judicial Magistrate could be justified, and, I am happy to say that he readily and fairly conceded to the well settled legal position. He made a statement at the Bar, that the learned Chief Judicial Magistrate had the right to criticise fearlessly the acts of the parties or the investigating agency, but that right should have been exercised with judicial sobriety. Having thus conceded to the position of law, even the learned advocate for opponent No. 1 readily conceded, that the learned Chief Judicial Magistrate ought not to have observed in his judgment, that the investigating agency wanted to please the Delhi Government or they must have some orders from higher-ups. He also conceded at the Bar, that the learned Chief Judicial Magistrate was not justified in using words and expressions indicated in the earlier part of my judgment.

24. In a matter of this nature, I am happy that such a fair and admirable attitude is taken up even by the learned advocate for opponent No. 1.

25. Mr. S.D. Patel, the learned advocate appearing on behalf of other opponents, accepted the same submission of Mr. Vyas, whereas Mr. J.R. Nanavati, the learned Government Pleader, supported the petition filed by the Delhi Administration (Delhi).

26. Having heard the submissions at the Bar at considerable length and with all anxiety, a question of considerable importance arises as to how this Court should judicially correct or expunge the remarks or observations made by the learned Chief Judicial Magistrate, Baroda. It was strongly urged by the learned Advocate General, that it would not be fair or proper for me to divorce the objectionable words from the objectionable passages and to retain the rest of the passages on the record of the case. In his submission, if such a course is adopted, it would not be fair to the petitioner who is having a strong grievance against the several paragraphs contained in the order of the learned Chief Judicial Magistrate. Suffice it to say, that in his submission, once the Court comes to the conclusion that certain objectionable observations were made by the learned Chief Judicial Magistrate in flagrant violation of his aforesaid right, the whole of the passages should be removed, whereas it was the submission on behalf of the opponents that only that portion of the passage should be removed which would be contrary to the well settled legal position.

27. In a matter of this kind, I am convinced beyond any doubt that the learned Chief Judicial Magistrate should not have used the words like 'ulterior motive' or 'condemnation.' I am also convinced beyond any doubt, that the learned Chief Judicial Magistrate should not have observed in his judgment that the investigating agency wanted to please the Delhi Government or they must have some orders from the higher-ups. I am also convinced beyond any doubt that the learned Chief Judicial Magistrate should have restricted his criticism only for the purpose of deciding the matter before him, and he should not have observed in his order having regard to the stage of the proceedings, that Ram Bulchand had made a false statement to the Delhi Police.

28. AS a result of the aforesaid discussion, I am sure the purpose of the petition will be served if, from the objectionable paragraphs, the following words are removed:

1. In paragraph 11, the learned Chief Judicial Magistrate should not have observed that 'the police (Delhi) has no business to take Ram Bulchand and all the accused to Delhi'.

2. From that very paragraph, the words 'some ulterior motive' should be removed.

3. From the sentence, namely, 'the action of Delhi police in taking away all the accused to Delhi deserves to be condemned' the words 'deserves to be condemned' should be removed from the said sentence.

4. From the said paragraph, the words 'by hook or by crook' or 'with ulterior motive' should be removed.

5. From the said paragraph, the following sentence should be removed: 'It seems to me that they wanted to please the Delhi Government or they must have some order from higher-ups.'

6. From the order, the following words should be removed: 'I am of the view that the prime accused Ram Bulchand made a false statement before the Delhi police.'

7. The following sentence must also be removed: 'This is a fit case wherein the police should have filed an application under Section 169 of the Criminal Procedure Code'.

29. In the facts and circumstances of the case, the order passed by the learned Chief Judicial Magistrate, Baroda is accordingly, judicially corrected, and the order passed by the learned Chief Judicial Magistrate should be read in such a way so as not to sigmatise the Delhi Administration (Delhi) and the Delhi Police (Delhi) in any manner whatsoever. Accordingly, the Rule is made partly absolute to ihe extent indicated above. The revision application partly succeeds. The Rule is made partly absolute.


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