JUDGMENT : Narasimham, C.J. - This is a petition by one Shri A.C. Bardhan, Circle Inspector of Police, (Manik Kemba P.S.) praying for the expunction of certain adverse remarks passed against him by the Sub-divisional Magistrate of Champua who tried a case u/s 380, Indian Penal Code (G.R. Case No. 88 of 1960) against the two members of the opposite party, Indra Pradhan and Dasarathi Prusty and acquitted them. 2. In Champua several tins of milk powder supplied by foreign countries were kept in charge of the Block Development officer for the purpose of distribution to school children in various places in the Sub-division. They were directly in charge of one A. Rout who was the Social Educational Organizer under the Block Development officer. The tins of milk powder were kept in a room in the office of the Sub-divisional Magistrate under lock and key. On 19-9-1960 at about 8 p.m. the-Block Development officer gave a report to the-officer-in-Charge of the Police Station saying that there was a shortage of 650 1bs. of milk powder from the room. He suspected Fakir Pradhan, Sweeper-cum-Choukidar in-charge of the room. The officer-in-Charge of Champua P.S. Shri Fakir Charan Mohanty drew up an F.I.R. on the basis of the report of the Block Development officer and took up investigation. The report of the Block Development officer was based on the information given to him by his subordinate. A. Rout, to the effect that when he opened the room at about 10-30 a.m., on the 19th September, 1960 be noticed the shortage in the number of milk powder tins after verifying the stock with the book balance. The officer-in-Charge Shri F.C. Mohanty carefully examined the door and the lock of the room and did not notice any recent marks of violence anywhere, though there were some marks of violence on the door frame around the staple which appeared to be quite old. He therefore did not believe the story put forward by A. Rout that some unknown culprits had committed theft of the tins on the previous night by pulling down the staple of the door and refixing the same after removing the articles. He therefore did not believe the story put forward by A. Rout that some unknown culprits had committed theft of the tins on the previous night by pulling down the staple of the door and refixing the same after removing the articles. He also examined one Darsan Munda and elicited from him that as early as the 10th September, 1960, eight packets of mille powder had been removed from the room with the connivance of A. Rout and taken by some labourers to village Jayanthi in Bihar State which is very close to Champua town. The officer-in-Charge therefore suspected A. Rout of having connived at the removal of the milk powder and sent the same to that border village in Bihar as early as the 10th September, 1960 and that he manoeuvred to get a false F.I.R. lodged with a view to make it appear that the burglary and theft had beep committed on the night prior to the 19th September 1960 so as to divert suspicion from himself. Some of the labourers who were said to have removed the milk powder on the 10th September, 1960 were also examined by the S.L. of Police and statements of two witnesses namely Darsan, and one Jayanta Kumar Mohanto, a Village Level Worker, were also recorded u/s 164, Criminal Procedure Code. In his forwarding letter to the Sub-divisional Magistrate Champua, he added that A. Rout, Social Educational Organizer under the Champua Block Development Scheme seemed to have had a hand in the commission of the crime. A letter (ext. A) written by A. Rout to a party Village Level Worker named Jayanta Kumar Mohanto in which he cautioned the latter about "danger having come" and asked him to make a false statement about the milk powder having been despatched to him on the 10th September, 1960 came into the hands of the Police subsequently, and this seemed to indicate that A. Rout, finding that there was some evidence to show that some of the milk powder tins were removed from the room on the 10th September, 1960 with his connivance wars trying to create evidence to exonerate himself. But luckily for him the Investigating officer Shri F.C. Mohanty was subsequently transferred from the place in the midst of the investigation and his successor Shri P.N. Das took over the investigation on 3-11-1960. But luckily for him the Investigating officer Shri F.C. Mohanty was subsequently transferred from the place in the midst of the investigation and his successor Shri P.N. Das took over the investigation on 3-11-1960. His conclusions were diametrically opposed to those of his predecessor in office and he appears to have attempted to save A. Rout by shifting the date of the occurrence to 17-9-1960 and not 10-9-1960 as stated by some of the witnesses before the Police earlier. Ultimately he submitted charge-sheet against the two members of the opposite party, namely, Inder Pradhan and Dasarathy Prusty and cited A. Rout and the Block Development officer as prosecution witnesses. The Sub-divisional Magistrate was not satisfied with the investigation and by his order dated 17th December, 1960, he observed as follows: The investigation seems to be perfunctory. The evidence against the Social Educational officer (meaning A. Rout) cannot be completely ignored. The case has not been supervised by the Circle Inspector or any other superior Police officer. Request the Circle Inspector to further investigate into the case and report by 28-12-1960. The Circle Inspector was none else than the Petitioner Shri A.C. Bardhan. He made some sort of supervision and submitted a report known as Test-cum-Supervision Note on 30-1-1961, practically supporting the conclusions of Shri P.N. Das. But in that report he did not give any convincing reasons as to why the inference drawn by the previous Investigating officer Shri F.C. Mohanty suspecting A. Rout was not accepted by him and why he thought that the date of occurrence was 17-9-1960 and not 10-9-1960. 3. The trial of Inder Pradhan and Dasarathy Prusty was held by the Sub-divisional Magistrate of Champua who acquitted them because the prosecution case to the effect that the occurrence took place on 17-9-1960 was not established. But there was some evidence to show that the missing tins of milk powder had in fact been removed on 10-9-1960, with the connivance of A. Rout, as stated by some of the prosecution witnesses in the earlier stages. It is unnecessary to state here whether the judgment of acquittal was justified or not. But during the course of the judgment the learned Sub divisional Magistrate commented very severely on the conduct of the Circle Inspector of Police in not investigating the case properly and in not summoning A. Rout. It is unnecessary to state here whether the judgment of acquittal was justified or not. But during the course of the judgment the learned Sub divisional Magistrate commented very severely on the conduct of the Circle Inspector of Police in not investigating the case properly and in not summoning A. Rout. Ultimately he summed up his conduct in connection with the case as follows: To sum up, the Circle Inspector disregarded thus the direction of the S.D.M. in that he did not reinvestigate, he deliberately changed the date of occurrence and lastly he showed blissful ignorance of the elements of law. Such officers are a menace to society and the authorities will do well to unsaddle him from the responsible post, with duty to investigate and supervise cases. 4. The Petitioner has asked this Court to expunge these observations saying that they were uncalled for and that as at any rate he was not a witness before the learned Magistrate he should not have made these comments without giving him an opportunity to explain his conduct. Some other passages in the judgment were also mentioned in the petition, for being expunged, but counsel for the Petitioner pleaded - for the expunction of the aforesaid passage only. 5. This case has had an interesting sequel. The Sub-divisional Magistrate, after acquitting the accused persons in that case, directed the Sub-Inspector of Police Champua to draw up a fresh F.I.R. against A. Rout and Dasarathy Prusty for offences under Sections 381, 211 and 218 of the Indian Penal Code, and also u/s 411, and to investigate the matter. To a specific query from this Court the learned Magistrate further replied that in the meantime the Vigilance Department had taken up the matter and both the Block Development officer and A. Rout have been placed under suspension and charge-sheets were likely to be submitted against them in connection with the defalcation of milk powder supplied to Champua Block. Thus, as a criminal case is imminent against A. Rout and also against the Block Development officer in respect of this occurrence it will not be proper for this Court to make any observations which might prejudice their fair trial. Thus, as a criminal case is imminent against A. Rout and also against the Block Development officer in respect of this occurrence it will not be proper for this Court to make any observations which might prejudice their fair trial. The only question is whether the severe adverse comments made by the learned Magistrate on the conduct of the Circle Inspector (Petitioner) while investigating G.R. Case No. 88 of 1960 were justified, or else whether they should be expunged. A Magistrate trying a Police case is undoubtedly entitled to make adverse comments on the way in which the case was investigated by Police officers including supervisory officers. It is true that in some decisions this Court has held that adverse comments should not be made by a court against persons who are not examined as witnesses before it and who do not get an adequate opportunity to explain their conduct. But in Police cases every Police officer (including superior officers who have participated in the investigation of the case at some stage or other) is not examined as a witness in court. If therefore appearance in court is considered as a condition precedent to the passing of any adverse comment on the conduct of a Police officer who investigated a case, it will be easy for a Police officer to escape comment by avoiding appearance in Court altogether. It is well known that supervising officers are not examined as witnesses in courts save in very exceptional circumstances. Hence if their supervision is found to be defective the trying Magistrate should have the freedom to give his comments on the same. In this connection Rule 29(a) of the Orissa Police Manual, Vol. I. (at page 18) may be quoted: In all cases in which misconduct or reasonable suspicion of misconduct, on the part of a police officer comes to the notice of a magistrate in the course of a judicial proceeding, he should, unless mention of it in his final order or judgment is necessary for the elucidation of the case, record a separate: note setting forth clearly the points of importance and stating whether the Police officer was given a reasonable opportunity to explain his conduct. The aforesaid rule is thus based on the assumption that comments may be made by a Court on the conduct of a Police officer if they are necessary for the elucidation of the case, and by authorizing the making of such comments the rules of natural justice are not violated; because no final orders are passed against the Police officer on the basis of these comments though departmental proceedings may be initiated against him. In those proceedings he will get adequate opportunities to explain his conduct. 6. The Petitioner's investigation of the case under the orders of the Sub-divisional Magistrate was not done satisfactorily. Two investigating officers, namely Shri F.C. Mohanty and Shri P.N. Das had practically come to contradictory conclusions as regards the real perpetrators of the crime. There were statements of several witnesses before the Police, to show that the milk powder had really been taken away at about midnight on 10-9-1960, and sent to a border village in Bihar. The document (ext. A) which is a letter written by A. Rout in also highly incriminating. Hence when the Sub-divisional Magistrate specially directed the Circle Inspector (Petitioner) to make a careful investigation, the latter should have made a searching enquiry and give special reasons as to why he preferred the conclusion of Shri P.N. Das to those of his predecessor Shri F.C. Mohanty. His supervision note is not only perfunctory, but appears to have been made with a view to save A. Rout. I am, therefore, not inclined to expunge those portions of the ad verse comments made by the Magistrate which relate to the conduct of the Petitioner in the investigation of this particular case, the Magistrate has made a sweeping remark to the following effect: Such officers are a menace to society and the authorities will do well to unsaddle him from the responsible post, with duty to investigate and supervise cases. It was not the function of the Magistrate to make such sweeping generalisations. He should have stopped with commenting on the conduct of the Petitioner in the case and then left it to his administrative superiors to decide about the disciplinary action or the nature of punishment to be taken against him departmentally. On the basis of the Petitioner's conduct in the investigation of this case alone a sweeping general comment of this type should not have been made. On the basis of the Petitioner's conduct in the investigation of this case alone a sweeping general comment of this type should not have been made. I would therefore expunge the aforesaid sentence in the passage from the judgment of the learned Magistrate, but the earlier portions of the passage will remain. 7. The petition is disposed of accordingly. Petition disposed of accordingly.