Saturday, 27 August 2016

Landmark Judgment on expunging of adverse remark

Their Lordships have also laid- down the test in
considering the expunction of disparaging remarks made
against persons or authorities whose conduct comes for

consideration before the Court of law to be decided by them
by summing up as under:-
“(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.”
7.2 Similarly, in the matter of Dr. Raghubir Saran v. State
 of Bihar and another AIR 1964 SC 1
 , the Supreme Court has held that
the High Court has inherent power to expunge
objectionable remarks in judgment and order of the
subordinate court against stranger, after it has become final
and culled out the principles as under:-
“7-8. From the aforesaid discussion the following
principles emerge:
(1) A judgment of a criminal Court is final; it can
be set aside or modified only in the manner
prescribed by law.
(2) Every Judge, whatever may be his rank in the
hierarchy, must have an unrestricted right to

express his views in any matter before him
without fear or favour.
(3) There is a correlative and self-imposed duty in
a Judge not to make irrelevant remarks or
observations without any foundation, especially in
the case of witnesses or parties not before him,
affecting their character or reputation.
(4) An appellate Court has jurisdiction to judicially
correct such remarks, but it will do so only in
exceptional cases where such remarks would
cause irrevocable harm to a witness or a party
not before it.
29. When the question arises before the High
Court in any specific case whether to resort to
such undefined power it is essential for it to
exercise great caution and circumspection. Thus
when it is moved by an aggrieved party to
expunge any passage from the order or judgment
of a subordinate Court it must be fully satisfied
that the passage complained of is wholly
irrelevant and unjustifiable, that its retention on
the records will cause serious harm to the person
to whom it refers and that its expunction will not
affect the reasons for the judgment or order.”
7.3 Likewise, in the matter of Niranjan Patnaik v.
 Sashibhusan Kar and another  (1986) 2 SCC 569
 , Their Lordships of the
Supreme Court have held that harsh or disparaging
remarks are not to be made against persons and authorities


whose conduct comes into consideration before courts of
law unless it is really necessary for the decision of the case
and followed the decision of the Supreme Court in the
matter of Mohammad Naim(supra) and observed as
under:-
“24. It is, therefore, settled law that harsh or
disparaging remarks are not to be made against
persons and authorities whose conduct comes
into consideration before courts of law unless it is
really necessary for the decision of the case, as
an integral part thereof to animadvert on that
conduct. We hold that the adverse remarks made
against the appellant were neither justified nor
called for.”
The courts should not make adverse remarks agianst
party/litigant unless really necessary for just decision of the
case and opportunity of hearing should be afforded before
making such remarks.
HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.276 of 2015
Lambodar Patel, 
 Versus
State of Chhattisgarh,
Coram:
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 04/03/2016
Citation:2016 CRLJ2814

1. Seeking expunction of certain offending/objectionable
remarks in the judgment delivered on 09.12.2014 by
learned Second Additional Sessions Judge, Sakti, District
Janjgir-Champa (Chhattisgarh) in Sessions Trial No.

21/2014 in the matter of State of Chhattisgarh v. Gangaram
Bareth and others, the petitioner herein has filed this writ
petition on the following factual backdrop:-
1.2 The petitioner herein is holding substantive post of Town
Inspector in the Department of Home. While he was posted
as Station House Officer, Police Station-Sakti, he
investigated Crime No. 363/13 for the offences under
Sections 294, 506 Part-II, 307/34, 323 and 323/34 and
related offences and ultimately, the accused persons were
charge-sheeted and thereafter tried for said offences before
the Second Additional Sessions Judge, Sakti being
S.T.No.21/2014. Learned Additional Sessions Judge
delivered its judgment on 09.12.2014 and convicted three
accused persons therein for the offence punishable under
Section 307/34 of the IPC. Learned Additional Sessions
Judge in his judgment has made certain remarks, which are
said to be disparaging and undeserving against the
petitioner holding that the petitioner has not made just, fair
and proper investigation to the said offences and made an
attempt to save the accused therein from clutches of the
law and also came to categorical conclusion that enquiry
and subsequent action against the petitioner is absolutely
necessary. Thereafter the Sub Divisional Officer (Police),
Sakti by its memo dated 16.09.2015, relying upon certain

observations made by learned Additional Sessions Judge in
its judgment, issued show-cause to the petitioner as to why
appropriate action should not be taken pursuant to the
observation made by the Second Additional Sessions
Judge, Sakti against him.
1.3 Feeling aggrieved against the adverse
remarks/observation made by learned Sessions Judge,
Sakti and consequent notice issued by the Sub-Divisional
Officer (Police), Sakti for initiating departmental action, the
instant writ petition has been filed stating inter-alia that the
petitioner has made investigation thoroughly and fairly to
the said crime and in consequence thereof accused
persons were brought to book for justice and thereafter,
accused persons have also been convicted for the above
stated offence. It was also averred that no opportunity of
hearing was granted to him before making such adverse
remarks/comments by learned Additional Sessions Judge,
Sakti and such adverse remarks were not at all necessary
for just and proper disposal of the criminal trial and such
undeserving remarks were made in breach of principles of
natural justice. It was further pleaded that on the basis of
adverse remarks, departmental action is proposed against
the petitioner, therefore, impugned adverse remarks made
in the judgment rendered by learned Additional Sessions

Judge be expunged and show-cause notice of the Sub
Divisional Officer (Police), Sakti directing initiation of
departmental enquiry also deserves to be quashed by
allowing the writ petition.
2. Mr. Mahendra Dubey, learned counsel appearing for the
petitioner, would submit that judgment of the learned
Additional Sessions Judge making castigating remarks
against the petitioner without affording opportunity of
hearing, affecting his reputation, integrity and conduct is
wholly unsustainable and bad in law. He would further
submit that such adverse remarks were absolutely
unnecessary for proper adjudication of the trial and such
adverse remarks have caused serious prejudice to the
petitioner and it will affect his future career, which is
apparent from the fact that show-cause notice has been
issued for initiating departmental action by the SubDivisional
Officer (Police), therefore, the afore-stated
remarks deserve to be expunged and impugned notice
issued for initiating departmental action be quashed and
writ petition be allowed with cost(s).
3. On the other hand, learned Government Advocate
appearing for the respondents/State, would submit that
such adverse remarks were clearly warranted in the facts of
the case because the petitioner has negligently investigated

the offence in question, as the investigation was not just,
fair and proper and no interference is required, as such, the
writ petition deserves to be dismissed with cost(s).
4. I have heard learned counsel appearing for the parties,
given thoughtful consideration to the submissions raised
therein and also gone through the record with utmost
circumspection.
5. In order to decide the dispute raised by the petitioner at the
bar, it would be appropriate to notice the relevant
paragraphs, which are said to be adverse and further said
to have been adversely affected the petitioner in the
judgment rendered by learned Additional Sessions Judge.
It states as under:-
(vernaculars omitted)
6. A careful perusal of the afore-stated extracts of the
judgment would show that learned Additional Sessions
Judge in its judgment not only criticized the conduct of the
petitioner for not making just and fair investigation by
making sweeping remarks against him, but also
recommended further action against him and upon enquiry
and relying upon the said observation/finding, the SubDivisional
Officer (Police) has issued show-cause notice to
the petitioner for initiating departmental/disciplinary action
which has given cause of action to the petitioner to file the
instant writ petition claiming expunction of above-stated
adverse remarks and seeking quashment of impugned
notice proposing to take action against the petitioner.
7. The short question that falls for consideration is with regard
to inherent power and jurisdiction of this Court to expunge

the adverse remarks made by a subordinate Court and
considerations involved in expunging those remarks. In
order to resolve the controversy, relevant judgments of the
Supreme Court laying down the tests for expunction of
adverse remarks may be profitably and usefully noticed
herein below:-
7.1 Way back in the year 1964, in the matter of The State
 U.P. v. Mohammad Naim. AIR 1964 SC 703
 , the Supreme Court
(Constitution Bench) has held that the High Court can in
exercise of its inherent jurisdiction expunge remarks made
by it or by a lower court if it be necessary to do so to
prevent abuse of the process of the court or otherwise to
secure the ends of justice and observed as under:-
“9. ..............We think that the High Court of
Bombay is correct and the High Court can in the
exercise of its inherent jurisdiction expunge
remarks made by it or by a lower court if it be
necessary to do so to prevent abuse of the
process of the court or otherwise to secure the
ends of justice; the jurisdiction is however of an
exceptional nature and has to be exercised in
exceptional cases only..............”
Their Lordships have also laid- down the test in
considering the expunction of disparaging remarks made
against persons or authorities whose conduct comes for

consideration before the Court of law to be decided by them
by summing up as under:-
“(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.”
7.2 Similarly, in the matter of Dr. Raghubir Saran v. State
 of Bihar and another AIR 1964 SC 1
 , the Supreme Court has held that
the High Court has inherent power to expunge
objectionable remarks in judgment and order of the
subordinate court against stranger, after it has become final
and culled out the principles as under:-
“7-8. From the aforesaid discussion the following
principles emerge:
(1) A judgment of a criminal Court is final; it can
be set aside or modified only in the manner
prescribed by law.
(2) Every Judge, whatever may be his rank in the
hierarchy, must have an unrestricted right to

express his views in any matter before him
without fear or favour.
(3) There is a correlative and self-imposed duty in
a Judge not to make irrelevant remarks or
observations without any foundation, especially in
the case of witnesses or parties not before him,
affecting their character or reputation.
(4) An appellate Court has jurisdiction to judicially
correct such remarks, but it will do so only in
exceptional cases where such remarks would
cause irrevocable harm to a witness or a party
not before it.
29. When the question arises before the High
Court in any specific case whether to resort to
such undefined power it is essential for it to
exercise great caution and circumspection. Thus
when it is moved by an aggrieved party to
expunge any passage from the order or judgment
of a subordinate Court it must be fully satisfied
that the passage complained of is wholly
irrelevant and unjustifiable, that its retention on
the records will cause serious harm to the person
to whom it refers and that its expunction will not
affect the reasons for the judgment or order.”
7.3 Likewise, in the matter of Niranjan Patnaik v.
 Sashibhusan Kar and another3
 , Their Lordships of the
Supreme Court have held that harsh or disparaging
remarks are not to be made against persons and authorities
3 . (1986) 2 SCC 569

whose conduct comes into consideration before courts of
law unless it is really necessary for the decision of the case
and followed the decision of the Supreme Court in the
matter of Mohammad Naim(supra) and observed as
under:-
“24. It is, therefore, settled law that harsh or
disparaging remarks are not to be made against
persons and authorities whose conduct comes
into consideration before courts of law unless it is
really necessary for the decision of the case, as
an integral part thereof to animadvert on that
conduct. We hold that the adverse remarks made
against the appellant were neither justified nor
called for.”
7.4 Similar is the proposition laid down in the matter of R. K.
 Lakshmanan v. A. K. Srinivasan and another4
 , in which
the Supreme Court has followed the tests laid down for
expunction of adverse remarks in Mohammad Naim
(supra).
7.5 In the matter of A. M. Mathur v. Pramod Kumar Gupta
 and others5
 , Their Lordships of the Supreme Court have
emphasized the need for judicial restraint and held that
judicial restraint and discipline are necessary to the orderly
administration of justice and observed as under:-
4 . (1975) 2 SCC 566
5 . (1990) 2 SCC 533

“13. Judicial restraint and discipline are as
necessary to the orderly administration of justice
as they are to the effectiveness of the army. The
duty of restraint, this humility of function should
be constant theme of our judges. This quality in
decision making is as much necessary for judges
to command respect as to protect the
independence of the judiciary. Judicial restraint in
this regard might better be called judicial respect,
that is, respect by the judiciary. Respect to those
who come before the court as well to other coordinate
branches of the State, the executive and
the legislature. There must be mutual respect.
When these qualities fail or when litigants and
public believe that the judge has failed in these
qualities, it will be neither good for the judge nor
for the judicial process.”
Their Lordships have further concluded that intemperate
comments should not be made by the Judges and observed
as under:-
“14. The Judge’s Bench is a seat of power. Not
only do judges have power to make binding
decision, their decisions legitimate the use of
power by other officials. The judges have the
absolute and unchallengeable control of the court
domain. But they cannot misuse their authority by
intemperate comments, undignified banter or
scathing criticism of counsel, parties or
witnesses. We concede that the court has the
inherent power to act freely upon its own

conviction on any matter coming before it for
adjudication, but it is a general principle of the
highest importance to the proper administration of
justice that derogatory remarks ought not to be
made against persons or authorities whose
conduct comes into consideration unless it is
absolutely necessary for the decision of the case
to animadvert on their conduct.”
7.6 In the matter of Manish Dixit and others v. State of
 Rajasthan6
 , it has been held by the Supreme Court that
castigating remarks against any person should not be made
and the Court is required to give opportunity of being heard
in the matter in respect of the proposed remarks or
strictures and the same is basic requirement, otherwise
offending remarks would be in violation of the principles of
natural justice and held as under:-
“43. Even those apart, this Court has repeatedly
cautioned that before any castigating remarks are
made by the Court against any person,
particularly when such remarks could ensue
serious consequences on the future career of the
person concerned he should have been given an
opportunity of being heard in the matter in
respect of the proposed remarks or strictures.
Such an opportunity is the basic requirement, for,
otherwise the offending remarks would be in
violation of the principles of natural justice. In this
6 . AIR 2001 SC 93

case such an opportunity was not given to PW 30
(Devendra Kumar Sharma).”
7.7 In the matter of Prakash Singh Teji v. Northern India
 Goods Transport Co. Pvt. Ltd. & another7
 , it has been
held by the Supreme Court that adverse remarks should not
be made unless it is necessary for decision of case and
opportunity to give his explanation should be afforded to the
concerned officer and observed as under:-
“13. In the light of the above principles and in
view of the explanation as stated by the appellant
for commenting the conduct of the plaintiff, we
are satisfied that those observations and
directions are not warranted. It is settled law that
harsh or disparaging remarks are not to be made
against persons and authorities whose conduct
comes into consideration before Courts of law
unless it is really necessary for the decision of the
case as an integral part thereof. The direction of
the High Court placing copy of their order on the
personal/service record of the appellant and a
further direction for placing copy of the order
before the Inspecting Judge of the officer for
perusal that too without giving him an opportunity
would, undoubtedly, affect his career. Based on
the above direction, there is every possibility of
taking adverse decision about the performance of
the appellant. We hold that the adverse remarks
7 . 2009 AIR SCW 3078

made against the appellant was neither justified
nor called for.”
The principle of law laid down in above-stated judgments
have been followed with approval by Supreme Court
recently in the matters of Amar Pal Singh v. State of Uttar
 Pradesh and another8
 , State of Gujarat and another v.
 Justice R. A. Mehta (Retired and others9
 , Om Prakashs
 Chautala v. Kanwar Bhan and others10
 and State of Uttar
Pradesh and others v. Anil Kumar Sharma and
 another11
 .
8. A conspectus of the judgment mentioned hereinabove
would show that though judge has unrestricted right to
express his views in any matter before him but there is
corresponding duty in a judge not to make unmerited and
undeserving remarks specially in case of witnesses or the
parties who are not before him affecting their character and
reputation unless it is absolutely necessary for just and
proper decision of the case and that too after affording an
opportunity of explaining or defending that witness or the
party as the case may be, judicial decisions must be judicial
in nature and it must show judicial respect to the
litigant/party, witnesses who come before the court for their
cause. It is also well settled that this Court in exercise of
inherent or extraordinary jurisdiction can expunge those
8 . (2012) 6 SCC 491
9 . (2013) 3 SCC 1
10 . (2014) 5 SCC 417
11 . (2015) 6 SCC 716

remarks made by subordinate court following the three tests
laid down in Mohammad Naim (supra), if it is really
necessary to do so or prevent abuse of the process of the
court or to secure the ends of the justice in exceptional
cases, where those remarks would cause irreparable injury
to the witness or party not before the court holding that
retention of those undeserving remarks will cause harm to
the person referred and the expunction will not affect the
judgment rendered by the court.
9. After having briefly noticed the test(s) laid down for
expunging the offending remarks and power and jurisdiction
of this Court to expunge them, would bring me to the factual
backdrop of the case. The petitioner as a investigating
officer has investigated the offence in question and chargesheeted
the accused persons and they were tried for the
charge-sheeted offences and eventually they were
convicted by the judgment rendered by learned Sessions
Judge. Certain discrepancies have been pointed out by
learned Sessions Judge in the investigation while delivering
the judgment and reached to the conclusion that the
petitioner tried to save the accused persons and further
held that the counter case to S.T. No.21/2014 was also
investigated by the petitioner, whereas, it ought to have
been investigated by other police officer and on that basis
 Page 15 of 1816
learned Additional Sessions Judge made offending and
adverse remarks against the petitioner and also recorded
that the inquiry be conducted against the petitioner and
thereafter further action be taken against him. Thereafter
relying upon the observation made by the Additional
Sessions Judge, show cause notice for initiating
departmental enquiry against the petitioner has been issued
which has been challenged in this writ petition, if the tests
laid down by their Lordships of the Supreme Court in the
matter of Mohammad Naim (supra) is applied to the facts
of the present case it would appear that the petitioner did
not have an opportunity to explain the said adverse
circumstances noticed by the learned Additional Sessions
Judge, as it is not the case of respondents/State that
petitioner was afforded an opportunity to explain those
circumstances. Likewise, such an adverse remarks were
neither necessary nor justifiable for the just decision of the
case as the accused persons therein stood convicted for
the offences charged. Thus, the offending remarks made
by learned Additional Sessions Judge in his judgment are in
breach of the tests laid down in Mohammad Naim (supra),
and such an offending remarks are in teeth of judgment of
Supreme Court in matter of A. M. Mathur (supra) and as
such retention of those remarks would cause legal harm

and injury to the petitioner as he is proposed to be chargesheeted,
on one hand and on the other hand expunction of
adverse remarks will not affect the validity or otherwise of
the judgment rendered by learned Additional Sessions
Judge. As such the offending remarks made by learned
Additional Sessions Judge in above-stated paragraphs in
judgment being unmerited and undeserving deserves to be
expunged in the ends of justice.
10. As a fall out and consequence of the above-stated
discussion, the writ petition is allowed and adverse remarks
made by the learned Second Additional Sessions Judge,
Sakti, in S.T.No.21/2014 (State of Chhattisgarh v.
Gangaram Bareth and others) in paragraphs 32, 35 and 37
against the petitioner are hereby expunged and as a
necessary corollary, show-cause notice dated 16.09.2015
(Annexure P/1) issued by the Sub-Divisional Officer
(Police), Sakti, District Janjgir-Champa and subsequent
proceedings (if any) against the petitioner are hereby
quashed.
11. The writ petition is allowed to the extent mentioned
hereinabove, but without imposition of cost(s).
 Sd/-
 (Sanjay K. Agrawal)
Judge

HIGH COURT OF CHHATTISGARH, BILASPUR
Writ Petition (Cr.) No.276 of 2015
PETITIONER : Lambodar Patel
 Versus
RESPONDENTS : State of Chhattisgarh and others
HEAD-NOTE
(English)
The courts should not make adverse remarks agianst
party/litigant unless really necessary for just decision of the
case and opportunity of hearing should be afforded before
making such remarks.

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