Tuesday, 10 May 2016

When trial court should not pass adverse remark against investigating officer?

 No doubt, the criminal Courts have full powers and authority to pass adverse remarks against the investigating officer and witnesses and also has power for issuing directions to the concerned authority to take necessary actions in accordance with the law. But while doing so, they are required to follow the established procedure. This established procedure is that the Presiding Judge should pass first the judgment or order, as the case may be, pointing out the material lapses and lacunas committed and left by the investigating officer in the course of investigation, on account of which the case has ended in acquittal. Otherwise, the case would have been resulted into the conviction of the accused. As stated earlier, the learned trial Judge has passed the directions and the adverse remarks vide the impugned order at a time when the judgment in the case is yet to be passed. Thus, the learned trial Judge has passed the impugned order in gross violation of the established procedure, which deserves to be disapproved by this Court, and the procedure adopted by the learned Judge is liable to be quashed.
Equivalent Citation: 2016CriLJ1740
IN THE HIGH COURT OF MADHYA PRADESH
M. Cri. C. No. 20084 of 2014
Decided On: 26.08.2015
Appellants: Kamal David and Ors. 
Vs.
Respondent: State of Madhya Pradesh
Hon'ble Judges/Coram:Rajendra Mahajan, J.


1. Petitioners have filed this petition under Section 482 of the Cr.P.C., for expunction of observations and remarks made against them in para 32 of the impugned order dated 21.11.2014 passed by the learned Special Judge, Burhanpur under the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, (for short 'the Act') in Special Case No. 21/14, State of M.P. v. Rakesh (for short 'the case'). The factual matrix of the case leading to filing of this petition is as follows:
"2.1 On 23.01.2013 at about 11.00 a.m., informant Rakesh, who is later made an accused of the case, made an oral statement to Head Constable Manish Shah (PW-1) at police station, Nimbola, District Burhanpur that he is the owner of an agricultural field situated near Baniyanala Dam. In his field, there are some residential quarters for his labourers. In one of the quarters, Kesharbai, aged 60 years (now deceased), has been residing for about three years. On 22.01.2013, at about 5.30 p.m., when he left his field, he saw her alive. On 23.01.2013, at about 10 a.m., Yaqub Khan, who has an agricultural field near his field, informed his mother Pramila and brother Umesh that the door of the quarter of the deceased is ajar and her necklace and sweater are lying outside of her quarter and she is also found missing. His brother Umesh conveyed the aforesaid information to him. Thereupon, he reached his field with his friend Kamlesh. They searched the deceased and in the course of which they found blood-stains near trough of his field. They also saw marks of dragging of a human body up to the well of the field. Thereupon, they peeped into the well and saw the dead body of the deceased floating.
2.2 Upon the oral statement of the informant, Head Constable Manish Shah (PW-1), recorded marg intimation Ex. P-1 and registered marg case No. 05/14 under Section 174 of the Cr.P.C.
2.3 Petitioner No. 3 Ravishanker Kokde, who was then posted as SHO, Police Station Nimbola, took up the marg case for inquiry. He reached the field on 23.01.2013 at about 2.30 p.m. with police personnel and public persons. In the well, he saw the dead body of the deceased floating. Thereupon, he got the dead body of the deceased extricated from the well and prepared a panchnama thereof. He noticed head injuries on her head where- from the blood oozed out and settled around the injuries. Thereafter, he prepared inquest report, seized various incriminating articles in and around the place of occurrence and prepared the spot map in presence of the witnesses. Thereafter, he sent the dead body for autopsy.
2.4 On 23.01.2013, Dr. Muzjal Bohra (PW-9) and lady doctor Daud performed the autopsy upon the dead body and gave the post-mortem report Ex. P-25. According to them, the deceased suffered antemortem injuries on her head. As a result, her front parietal, occipital and nasal bones were broken. They opined that the deceased suffered homicidal death. They also recommended the chemical examination of the clothes and viscera of the deceased by the F.S.L.
2.5 On the basis of post-mortem report, petitioner Ravishanker Kokde registered the FIR Ex. P-15 on 25.01.2013 against the unknown offender(s) at crime No. 20/13 under Sections 302 and 201 of the IPC and he took up investigation of the case.
2.6 As per the FSL report Ex. P-20, the petticoat of the deceased contained stains of semen and human spermatozoa. On the basis of the said report, petitioner Ravishanker Kokde had taken blood samples of suspects namely Rakesh, the informant, Bandu, Siliram, Miliram, Soniya Bhika and Shobha and he sent them along with the petticoat and sari of the deceased to the FSL, Sagar for the DNA test. As per the test report Ex. P-22, the human spermatozoa and stains of semen found on the petticoat of the deceased belong to Rakesh, the informant. On the basis the DNA report, petitioner Ravi Shanker Kokde has made informant Rakesh accused of the case. Thereafter, he recorded the case diary statements of various witnesses including deceased husband and daughter namely Shobha (PW-2) and Leelabai (PW-3). During the investigation, the petitioner Ravishanker Kokde found that accused Rakesh committed the murder of the deceased after committing rape upon her. Upon his command, petitioner No. 2 Amit Singh arrested accused Rakesh on 25.05.2014. In the course of investigation, it is also found that the deceased is a member of tribal community. Thereupon, petitioner Ravishanker Kokde handed over the case for further investigation to the police station AJAK, Burhanpur. Thereafter, petitioner No. 1 Kamal David (PW-6) made further investigation. As per record, he did nothing except the filing of charge-sheet.
2.7 The charge-sheet was filed in the Court of Abhishek Saxena Judicial Magistrate, Burhanpur. He committed the case to the Special Court, Burhanpur. Thereupon, the case is registered."
2. The learned trial Judge framed the charges against the accused Rakesh for the offences punishable under Sections 376, 302, 201 of the IPC and 3 (2) (5) of the Act. He denied the charges and claimed trial.
3. In the course of trial, the learned trial Judge has recorded the evidence of as many as 12 prosecution witnesses. On 11.11.2014, the prosecution closed its case. Thereupon, the case was fixed on 14.11.2014 for examination of accused Rakesh under the provisions of 313 of the Cr.P.C. On that day, instead of examining accused Rakesh under the aforesaid section the learned trial Judge posted the case for passing an order and on 21.11.14, he passed the impugned order.
4. The impugned order runs into 31 pages and in para-32, the learned trial Judge has made following observations, directions and remarks:

5. The learned trial Judge has sent a copy of the impugned order to the Home Secretary to the Government of Madhya Pradesh, demanding his immediate action thereon.
6. Feeling aggrieved by the observations and especially remarks against them in para- 32 (2) to (4), the petitioners have filed this petition under Section 482 of the Cr.P.C., invoking the extraordinary jurisdiction of this Court for their expungements on the ground that before passing the impugned order the learned trial Judge had not given them an opportunity of hearing. Thus, they have been deprived of natural justice.
7. The learned counsel appearing for the petitioners has submitted that it is a well settled law by a catena of decisions that before passing adverse remarks against an investigating officer for lapses and lacuna left by him in the course of investigation, the Presiding Judge of the criminal court is bound to give him an opportunity of hearing and explanation about the alleged lapses and lacunas. But in the present case, the learned trial Judge has not followed the established procedure before passing the impugned order. Therefore, the petitioners have been deprived of natural justice. Under the circumstances, the observations and remarks made against them be expunged. In support of the arguments learned counsel has relied upon the following judgments.
"(i) The State of Uttar Pradesh v. Mohammad Nairn, MANU/SC/0062/1963 : AIR 1964 SC 703.
(ii) Niranjan Patnaik v. Sashibhusan Kar, MANU/SC/0193/1986 : AIR 1986 SC 819.
(iii) S.K. Viswambaran v. E. Koyakunju, MANU/SC/0276/1987 : AIR 1987 SC 1436.
(iv) State of Karnataka v. Registrar General High Court of Karnataka, MANU/SC/0496/2000 : AIR 2000 SC 2626.
(v) K.P. Singh Kushwaha v. State of M.P., MANU/MP/0077/2005 : 2005 (2) MPLJ 276."
8. Per contra, learned panel lawyer appearing for the respondents/State has supported the impugned order in its entirety in the facts and circumstances of the case.
9. I have anxiously considered the rival submissions, perused the impugned order, the entire record of the trial Court and the aforesaid citations.
10. Learned counsel for the petitioners has made limited prayer for expungements of adverse remarks and observations made against the petitioners. However, by perusal of the impugned order, I will consider whether other directions not connected with the petitioners are justifiable.
11. From perusal of the record of the case, it is evident that the impugned order is passed at the stage of examination of the accused under Section 313 of the Cr.P.C., and before passing the final judgment of the case. The judgment in the case is yet to be passed.
12. On 05.07.2014, the learned trial Judge framed the charges against the accused for the offences punishable under Sections 376, 302 and 201 of the IPC and 3 (2) (5) of the Act, meaning thereby, he has taken cognizance of the aforesaid offences on the basis of the charge-sheet. Hence, he has no power as a Judge of the trial Court to direct further investigation into the case as he has directed vide the impugned order. However, the investigating agency has right to file supplementary charge-sheet in case it has come across fresh evidence against the accused as per the provisions of Section 173 (8) of the Cr.P.C. It is my considered view that if a trial Court passes an order for further investigation into the case after taking the cognizance by framing the charges, the impartiality of the Court will erode and the such act of the Court will amount to usurping the role of the prosecutor. Therefore, the directions given in respect of re-investigation of the case vide the impugned order is not proper and justifiable on the part of the learned trial Judge. In the result, the said directions are liable to be quashed.
13. No doubt, the criminal Courts have full powers and authority to pass adverse remarks against the investigating officer and witnesses and also has power for issuing directions to the concerned authority to take necessary actions in accordance with the law. But while doing so, they are required to follow the established procedure. This established procedure is that the Presiding Judge should pass first the judgment or order, as the case may be, pointing out the material lapses and lacunas committed and left by the investigating officer in the course of investigation, on account of which the case has ended in acquittal. Otherwise, the case would have been resulted into the conviction of the accused. As stated earlier, the learned trial Judge has passed the directions and the adverse remarks vide the impugned order at a time when the judgment in the case is yet to be passed. Thus, the learned trial Judge has passed the impugned order in gross violation of the established procedure, which deserves to be disapproved by this Court, and the procedure adopted by the learned Judge is liable to be quashed.
14. To satisfy myself whether the petitioners were given any opportunity of hearing before passing the observations and the adverse remarks against him? I have meticulously gone through the record, which reflects that the petitioners were not afforded any opportunity of hearing before passing of the said remarks. Thus, learned counsel appearing for the petitioners has rightly stated across the Bar that while passing impugned order, principles of natural justice have not been followed.
15. The Supreme Court in the case of State of Uttar Pradesh v. Mohammad Naiem (MANU/SC/0062/1963 : AIR 1964 SC 703) (supra) has clearly held that:
"It has been judicially recognized that in the matter of making disparaging remarks against persons or 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 recognized that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve."
The same view was reiterated in the cases of Niranjan Patnaik v. Sashibhusan Kar (MANU/SC/0193/1986 : AIR 1986 SC 819) (supra) and S.K. Viswambaran v. E. Koyakunju (MANU/SC/0276/1987 : AIR 1987 SC 1436) (supra).
16. As stated in para-15 that the learned trial Judge has not granted an opportunity of hearing to the petitioners before passing the observations and the adverse remarks against them. Hence, in view of the ratio law laid down in the aforesaid decisions, the adverse remarks are liable to be expunged.
17. In case of State of Karnataka v. Registrar General, High Court of Karnataka (MANU/SC/0494/2000 : AIR 2000 SC 2636) (supra) the Supreme Court has held that demoralisation of Police Department would badly erode the already impaired efficiency of the forces.
18. In view of the above, the learned trial Judge should not have at least made corruption charges against the petitioners even obliquely without tangible evidence as he has made in para-32(4). Hence, remarks made in para-32(4) are liable to be quashed.
19. As per the contents of 32(3) the learned trial Judge has directed the initiation of departmental enquiry against the petitioners. This Court, in the case of K.P. Singh Kushwaha v. State of M.P. (MANU/MP/0077/2005 : 2005 (2) MPLJ 276) (supra) has held that the trial Court has no jurisdiction to direct the authority for initiation of departmental enquiry and to punish them. At most the learned trial Judge after passing the adverse remarks may have directed the authorities concerned to take necessary action in accordance with law. Thus, the learned trial Judge has exceeded his power by directing the authority concerned to hold the departmental enquiry against the petitioners. Hence, remarks made in para 32(3) are liable to be quashed.
20. Therefore, the directions, observations and adverse remarks passed by the learned trial Judge in the impugned order are not sustainable in the law. Consequently, in view of; the foregoing discussions, this petition succeeds and is allowed. The directions, observations and adverse remarks passed in para 32 are hereby quashed and expunged.
21. Since the final judgment is yet to be passed in the case, the Registry is directed to send the record of the case immediately without delay to the Court concerned.
22. The incumbent Presiding Judge of the Court concerned is directed to proceed in the case further from the stage where the case is presently lying and to make all endeavours to expedite the disposal of the case. He is also directed that while passing the final order and judgment in the case, he will not be influenced by any observations made in this order and the impugned order. Further, if he arrives at the conclusion that the case is resulted into the acquittal on account of lapses and lacunas left by any of the petitioners, then he would grant him an opportunity for hearing against the lapses/lacuna, pointing them out to the concerned first. Thereafter, if he deems appropriate, he may pass suitable remarks. Accordingly, this M. Cri. C., stands disposed of.
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