Whether adverse remark passed against Judicial officer should be expunged?

 At the same time, condemnation of the Presiding Officer and going to the extent of damning him, albeit, in an oblique manner, may not be justified in the facts of this case. No doubt, it was expected of the Presiding Judge to play more active and positive role. However, if error is committed on that front, it is also not appropriate to arrive at other extreme conclusions against that Presiding Officer in the absence of any cogent evidence against him. We were also informed that the said Presiding Officer is at the verge of retirement and is going to retire within a couple of months, after rendering long service of more than 30 years. This Court has time and again stated that the High Court should not lightly pass strictures against the judges in the subordinate judiciary {See - Awani Kumar Upadhyay v. High Court of Judicature of Allahabad and Ors. MANU/SC/0119/2013 : (2013) 12 SCC 392 and Amar Pal Singh v. State of Uttar Pradesh and Anr. MANU/SC/0495/2012 : (2012) 6 SCC 491}.

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 492 of 2014, 

Decided On: 30.10.2017

Dinubhai Boghabhai Solanki Vs. State of Gujarat and Ors.

Hon'ble Judges/Coram:

A.K. Sikri and Ashok Bhushan, JJ.

Citation: (2018) 11 SCC 129

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When adverse remark against Judge is not expunged?

The appellant is aggrieved by certain
observations in the impugned Judgment, which
according to the appellant, are adverse in nature.
3. Having gone through the impugned Judgment, we
find that the Court, in the impugned Judgment, has
mainly stated the legal position, making it clear
that the judicial officers are bound to follow the
Judgments of the High Court and also the binding
nature of the Judgments of this Court in terms of
Article 141 of the Constitution of India.
4. We do not find any observation in the impugned
Judgment which reflects on the integrity of the
appellant. Therefore, it is not necessary to expunge
any of the observations in the impugned Judgment
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOs. 632-633 OF 2017

PRABHA SHARMA V SUNIL GOYAL & ORS. 
Dated:January 17, 2017.

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Whether magistrate can take cognizance of offence U/S 200 of CRPC instead of directing investigation U/S 156 of CRPC?

 Section 156(1) of the Code authorizes the police to investigate into a cognizable offence without requiring any sanction from a judicial authority. However, sub-section (3) of Section 156of the Code provides that any Magistrate empowered under Section 190 of the Code may order such an investigation as mentioned in sub-section (1) of the said Section. Section 190 of the Code deals with cognizance of offences by Magistrates and inter alia provides that any Magistrate of the first class may take cognizance of an offence (a) upon receiving a complaint of facts which constitute such offence, (b) upon a police report of such facts and (c) upon information received from any person other than a police officer or upon his own knowledge that such offence has been committed. Neither Section 154 nor Section 156 of the Code contemplates any application to be made to the police under Section 156(3) of the Code. What is provided in Section 156(1) of the Code is that any officer in charge of a police station may, without the order of a Magistrate, investigate any cognizable case which a Court having jurisdiction over the local area within the limits of such station would have power to inquiry into or try under the provisions of Chapter XIII. However, this Court finds that in the present case it was alleged by the respondent No. 3 that she had filed complaint before police but according to her, the police officer in charge of the police station had refused to register her complaint and, therefore, she had made application to the Senior Superintendent of Police as required bySection 154(3) of the Code, but of no avail. Therefore, the respondent No. 3 had approached the appellant, who was then discharging duties as Judicial Magistrate II, Court No. 14, Saharanpur. When the complaint was presented before the appellant, the appellant had mainly two options available to her. One was to pass an order as contemplated by Section 156(3) of the Code and second one was to direct examination of the complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and proceed further with the matter as provided by Section 202of the Code. 

Reportable

Supreme Court of India

Mona Panwar vs High Court Of Judicat.At ... on 2 February, 2011

Bench: J.M. Panchal, H.L. Gokhale

Citation:2011 ALLMR(CRI)1015 SC:(2011)3 SCC496

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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,  Vs State of Chhattisgarh,

Coram:
Hon'ble Shri Justice Sanjay K. Agrawal
Dated: 04/03/2016
Citation:2016 CRLJ2814

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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

Kamal David and Ors. Vs. State of Madhya Pradesh

Hon'ble Judges/Coram:Rajendra Mahajan, J.

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When Adverse Remark against judge in Judgment is not expunged?

The appellant in this appeal is a retired Additional Sessions Judge of the State of Orissa. In this appeal by Special Leave, he seeks to challenge the judgment and order dated 20.10.2002, rendered by a learned Judge of the Orissa High Court in suo-moto Criminal Revision No. 367 of 1997, arising out of Session Trial Case No. 187/55 of 1995, to the extent the learned Judge has made certain observations against the appellant who had decided that session case. These remarks were made on account of the appellant not framing the charge under Section 302 of the Indian Penal Code (IPC) against the accused in that case, when the material on record warranted framing of that charge.. That apart, all that the impugned order in Revision has done is to suggest to the High Court Administration, that if the appellant is not yet confirmed, his probation should wait and if he has already been confirmed, his performance be verified before giving him the higher scale. Since the appellant, was already confirmed in service, all that the High Court has done on the administrative side is to check his record, and thereafter to deny him the selection grade. The above observation in the impugned order in Revision is a suggestion to the Administration of the High Court. It is not a case of making any adverse or disparaging remarks as in the three cases cited on behalf of the appellant. In fact, in the first judgment cited by the appellant, in the case of V.K. Jain (supra), the observation of this Court in clause No. I of para 58 is very significant, namely that the erosion of the credibility of the judiciary in the public mind, for whatever reason, is the greatest threat to the independence of judiciary. Having noted that the appellant had failed in discharging his duty in framing the correct charge, and having also noted that his record was not good, the High Court could not have granted him the selection grade. The selection grade is not to be conferred as a matter of right. The record of the concerned Judge has to seen, and that having been done in the present case (in pursuance to the observations of the learned Single Judge), and having noted the serious deficiencies, the High Court has denied the selection grade to the appellant. Interestingly enough, in this Appeal by Special leave, the appellant is not directly seeking to challenge the denial of selection grade. He is challenging the observations in the impugned order which led to denial of the selection grade. In our view, the impugned order contained nothing but a correctional suggestion to the High Court Administration which the Administration has accepted.

25. It is only because of the note made by inspecting Judge that the cursory order passed by the appellant in the Sessions case diluting the charge against the accused came to the notice of the High Court Administration. It is contended on behalf of the appellant that in any case the suo-moto Revision has not led to the reopening of the case under Section 401 of the Code of Criminal Procedure. In this connection, we must note that by the time the suo-moto Revision was decided, the accused had already undergone the punishment of rigorous imprisonment of 5 years. Therefore, the Revisional Court did not deem it fit to reopen it. The appellant cannot take advantage of this part of the judgment of the Revisional Court, to challenge the observations of the learned Revisional Judge making a suggestion to the High Court to scrutinize appellant's record for the dereliction of duty on his part. The appellant was responsible for an unjustified dilution of the charge and, therefore, the thorough checking of his service record was necessary which is, what is directed in the impugned order.

Supreme Court of India

R.S. Mishra vs State Of Orissa & Ors on 1 February, 2011

Bench: J.M. Panchal, H.L. Gokhale

REPORTABLE

CRIMINAL APPEAL NO. 232 OF 2005

Citation;AIR2011SC1103, 2011CriLJ1654,(2011)2SCC689, 

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