ORDER: In the above original petitions, the State seeks expunging of remarks made by the learned Principal Sessions Judge, Chennai in Crl.M.P.Nos.7974 and 8057, 8114, 8115, 8179, 8193 and 8194 of 2001 The learned Sessions Judge while passing orders on bail applications filed by the different accused in Cr.No.3 of 2001 in Crl.M.P.No.7974 of 2001 against which Crl.O.P.No. 12798 of 2001 has been filed, had recorded statements of the complainant, Mr.J.T. Acharyalu, Commissioner, Corporation of Chennai and Investigating Officer, Mr.N. Padmanabhan, Deputy Superintendent of Police. C.B. C.I.D., Chennai. Moreover, in Crl.M.P.Nos. 8057, 8114, 8115, 8170, 8193 and 8194 of 2001 against which Crl.O.P.Nos. 12797, 13177, 13178, 13179, 13180, and 13181 of 2001 have been filed, the learned Sessions Judge based his bail order on the statements recorded from the abovesaid two persons. Therefore, the state seeks to expunge the entire statements recorded from the abovesaid persons as they are illegal. The state also seeks to expunge certain remarks made by the learned Sessions Judge in both the orders. 2. The learned Sessions Judge was asked to offer his remarks as to the authority or provision of law under which the statements of those persons were recorded, whether those statements were recorded by putting questions and eliciting answers, whether they have been examined on oath, what necessitated the examination of those persons while disposing of a bail application and what is the justification for certain remarks made in paragraph 9 and 10 of his order dated 3.7.2001. and whether those statements of witnesses were considered for releasing the petitioners on bail in the other set of bail applications. The learned Sessions Judge has also offered is remarks. 3. The first and foremost question to be decided is the authority or the provision of law under which the learned Sessions Judge recorded the statements of the complainant and the Investigating Officer in the case, while disposing of the bail applications filed by the accused. The learned Advocate General of Tamil Nadu arguing on behalf of the state submitted that while considering the bail applications, the learned Sessions Judge has gone beyond his powers to record the statements of the complainant and the Investigating Officer in the case. The learned Advocate General of Tamil Nadu arguing on behalf of the state submitted that while considering the bail applications, the learned Sessions Judge has gone beyond his powers to record the statements of the complainant and the Investigating Officer in the case. He would further submit that the Public Prosecutor was having no objection for the release of the accused on bail as evident in the order itself and inspite of that the learned Sessions Judge went to the extent of examining the above said two persons and recording their statements. He would also pray for expunging of the remarks of the learned Sessions Judge, found in paragraph 4 of the said bail order, which is as follows: “The complainant and the investigating officer were questioned and there are several incriminating information on their answers.” 4. The learned counsel Mr.M.Venkataraman who appears for the respondent in Crl.O.P. 12798 of 2001 contended that while deciding whether judicial custody is required for any person arrested and produced by the police, the learned Sessions Judge has got every right to question and record the statements of complainant and the investigating officer, since he is exercising the power of a Magistrate to remand the accused persons. He also relies on Rule 76 of the Criminal Rules of Practice. Rule 76 of the Criminal Rules of Practice contemplates a request for remands to police custody accompanied by an affidavit. This is not a case where any police custody was asked for. Therefore, I am afraid that Rule 76 of the Criminal Rules of Practice is of no avail to the respondent in this context. While a police officer requires police custody of an accused, who has been produced or remanded to judicial custody, the police officer is expected to file an affidavit and the Magistrate shall also examine the police officer to ascertain the necessity for police custody. But in this case, there is no request for police custody at all. The learned Sessions Judge was only dealing with the bail applications filed by the accused who were already remanded to judicial custody. While considering the bail application, the learned Sessions Judge has got every right to look into the case diary to get himself satisfied as to whether any materials are available against the accused to justify the remand and whether the accused can be released on bail. While considering the bail application, the learned Sessions Judge has got every right to look into the case diary to get himself satisfied as to whether any materials are available against the accused to justify the remand and whether the accused can be released on bail. Here is a case where the learned Sessions Judge chose to ask the investigating Officer, who was present in Court, to produce the complainant/informant and after the latter being produced, started recording statements from both of them by putting questions and recording their answers. This act of the learned Sessions Judge is questioned by the State. 5. While considering the bail application, normally certain points are being put forth by the accused for the consideration of the Court to release him on bail and the Public Prosecutor is being heard before granting bail. If the Court is satisfied with the points raised by the accused making out a case for bail and the Court is not impressed with the submissions of the Public Prosecutor, the Court will necessarily grant bail. Once the Court is convinced that there is no material to keep the accused further in prison, the Court can grant bail and the power of the Court cannot be disputed. But, while considering the bail applications, what is the necessity for the Court to ask the investigating officer to produce the complainant and then record the statements of the complainant as well as the investigating officer? 6. Immediately after the registration of the first information, investigation has started. If the prosecution claims that they have sufficient materials and also produce those materials before the Court with a prayer to reject the bail, the Court can consider those materials. But the Court does not enjoy any power to suo motu call the complainant and the investigating officer and record their statements. 7. The learned Counsel Mr.Venkataraman further submitted that there is no prohibition in law to examine a witness during bail proceedings. There is no enabling provision also for the same. According to him, the complainant and the investigating officer were examined to find out whether any material is available to prove pecuniary advantage to any of the accused, since it is a case under the Prevention of Corruption Act. There is no enabling provision also for the same. According to him, the complainant and the investigating officer were examined to find out whether any material is available to prove pecuniary advantage to any of the accused, since it is a case under the Prevention of Corruption Act. It is for the prosecution to prove that enough materials are available to show that the accused received pecuniary advantage and once the prosecution has not let in any kind of evidence, why should these witnesses be examined? The reasoning of the learned counsel is not appealing. His further argument was that the learned Sessions Judge has power to put questions to any one and therefore he can also record their statements. It is unfortunate that the role of the judge is not to collect evidence either on behalf of the prosecution or on behalf of the accused. Once the prosecution has failed to produce evidence, the benefit automatically accrues to the accused. The moment the Public Prosecutor is heard and the C.D. is perused, if the Judge feels that there is no case against the accused, he can very well release the accused on bail. That power of the Court cannot be questioned at all. But unfortunately in this case, the learned Sessions Judge went to the extent of calling the complainanat, examining the complainant and the investigating officer and recorded their statements. This according to me, is unwarranted and is likely to harm or prejudice the prosecution, investigation in this case was admittedly in the threshold, since the first information was lodged on 30.6.2001 and the earlier bail application came up for consideration on 3rd July, 2001. 8. The learned senior counsel appearing for the respondent in Crl.O.P.No. 12797 of 2001 contended that investigation is done only under judicial control and the moment the first information is registered, the Magistrate takes control of the investigation under Chapter XII of the Criminal Procedure Code. Insofar as his contention that the learned Principal Sessions Judge, Chennai is also a Special Judge trying cases under the Prevention of Corruption Act and therefore, he possessed all the powers of a Magistrate is concerned, there cannot be any dispute at all. Insofar as his contention that the learned Principal Sessions Judge, Chennai is also a Special Judge trying cases under the Prevention of Corruption Act and therefore, he possessed all the powers of a Magistrate is concerned, there cannot be any dispute at all. But his contention is that the learned Magistrate or the Sessions Judge takes charge of the investigation and, he relies on a ruling of the Apex Court rendered in the case of Delhi Judicial Service Association v. State of Gujarat, (1991)4 S.C.C. 406 , wherein it has been held as follows: "Constitutional hurdles over, now we would revert back to the incident which has given rise to these proceedings. The genesis of the unprecedented attack on the Subordinate judiciary arose out of confrontational attitude of the local police against the Magistracy in Kheda. The Chief Judicial Magistrate is head of the Magistrary in the district. Under the provisions of Chapter XII of the Code of Criminal Procedure, 1973, he exercises control and supervision over the investigating officer. He is an immediate officer on the spot at the lower rung of the administration of justice of the country to ensure that the police which is the law enforcing machinery acts according to law in investigation of crimes without indulging in excesses and causing harassment to citizens. The main objective of police is to apprehend offenders, to investigate crimes and to prosecute them before the Courts and also to prevent commission of crime and above all to ensure law and order to protect the citizens life and property. The law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. The purpose and object of Magistracy and police are complementary to each other. It is unfortunate that these objectives have remained unfulfilled even after 40 years of our Constitution". These observations were made in the context, where a Chief Judicial Magistrate who is the head of the Magistracy in the district was arrested on a charge of having consumed liquor in breach of prohibition law enforced in the State of Gujarat. The Chief Judicial Magistrate was tied with a thick rope and was sent to the hospital for medical examination. He was also handcuffed. The Chief Judicial Magistrate was tied with a thick rope and was sent to the hospital for medical examination. He was also handcuffed. While condemning the act of the police, the above said observations were made with a view to control the police excesses in dealing with the law and order situation. Their Lordships have no doubt observed that the Chief Judicial Magistrate was exercising control and supervision over the investigating officer and the law enjoins the police to be scrupulously fair to the offender and the Magistracy is to ensure fair investigation and fair trial to an offender. That does not mean that the Magistrate or a Judge can interfere with the investigation. In this case, we are concerned only with the right of the Court to suo motu record the statements of the complainanat and the investigating officer while considering the bail application. 9. The learned Senior counsel Mr. Shanmugasundaram drew the attention of this Court to Sec. 164(5), Crl.P.C. and argued that the learned Sessions Judge has recorded the statement under Sec. 164, Crl.P.C. I am afraid whether the learned Sessions Judge has got any powers to record the statements of witnesses under Sec. 164, Crl.P.C. suo motu without being requisitioned by the police. The very scheme of Sec. 164, Crl.P.C. does not indicate any suo motu power on the Magistrate or the learned Sessions Judge. He can record the confessions or statement made to him. In the course of an investigation. Certain procedural formalities have been enunciated for the observance of the Court, while recording the confession of the accused concerned. Sub-sec.(5) of Sec. 164, Crl.P.C. reads as follows: "Any statement other than a confession made under sub-section (1) shall be recorded in such manner hereinafter provided for the recording of evidence as is, in the opinion of the Magistrate, best fitted to the circumstances of the case, and the Magistrate shall have power to administer oath to the person whose statement is so recorded:. The beginning phrase is “Any statement other than a confession made under Sub-sec.(1)”. The word made makes it clear that the statement, should be voluntary. In this case, the statements recorded from the complainant and the investigating officer cannot be said to be voluntary statements at all. They have not come forward with a request to record their statements. The beginning phrase is “Any statement other than a confession made under Sub-sec.(1)”. The word made makes it clear that the statement, should be voluntary. In this case, the statements recorded from the complainant and the investigating officer cannot be said to be voluntary statements at all. They have not come forward with a request to record their statements. It is the learned Sessions Judge who summoned and recorded their statements that too without any initiation by the investigating agency. 10. In this context, it is relevant to quote Rule 75 of the Criminal Rules of Practice, which contemplates requisition in writing signed by a police officer now below the rank of a Sub Inspector to record the statements of witnesses as a pre-condition. Therefore, by no stretch of imagination, these statements can be said to be the statements recorded from the witnesses under Sec. 164, Crl.P.C. Yet another flaw in recording those statements is that the learned Sessions Judge in his remarks has admitted that no oath was administered to any one of them before recording those statements. The statements under Sec. 164(5), Crl.P.C. have to be recorded in such manner provided for recording of the evidence. The mode of recording evidence is available under Chapter XXIII of the Criminal Procedure Code. Nowhere in the chapter, there is an indication that while considering a bail application, statements of witnesses can be recorded. Further under Sec.4 of The Oaths Act, 1969, Oaths or affirmations shall be made by all witnesses, that is to say all persons who may lawfully be examined or give, or be required to give, evidence by or before any Court or person having by law or consent of parties authority to examine such persons or to receive evidence. Moreover, Rule 44 of the Criminal Rules of Practice prescribes certain forms of bath to be administered to witnesses. In the absence of administration of oath to both the persons, their statements cannot be said to be statements of witnesses recorded under Sec.164, Crl.P.C. Sec. 164(5), Crl.P.C. also contemplates administration of oath to the person whose statement is to be recorded. Therefore, in all respects, I am unable to agree with the contention of the learned counsel that the statement recorded from the complainant and the investigating officer by the learned Sessions Judge, were the statements recorded under Sec. 164(5), Crl.P.C. 11. Therefore, in all respects, I am unable to agree with the contention of the learned counsel that the statement recorded from the complainant and the investigating officer by the learned Sessions Judge, were the statements recorded under Sec. 164(5), Crl.P.C. 11. According to the learned Senior Counsel, the learned Sessions Judge has got every power to examine the persons and ask them any question under Sec. 165 of the Indian Evidence Act. The learned Sessions Judge in his remarks also has stated that he had exercised the power under Sec. 165 of the Indian Evidence Act. Sec. 165 occurs in Chapter 10 of the Indian Evidence Act which deals with examination of witnesses, order of production and examination of witnesses, examination-in-chief, cross-examination, re-examination and so on. Judge’s power to put questions under Sec. 165 of the Act is available during the course of any enquiry or trial. But that power is alien to bail proceedings, because bail proceedings does not contemplate examination of any witness at all. The learned Sessions Judge in his remarks has said that those statements were recorded by putting simple questions and eliciting answers. This cannot be done by the Judge even while recording the statement under Sec. 164, Crl.P.C. from a witness, because that statement is only a voluntary disclosure of facts and not extracted statement. Therefore, according to me, Sec. 165 of the Indian Evidence Act has no application in this case. 12. The learned senior counsel further argued that bail proceedings is an enquiry and therefore, the learned Sessions Judge has got every right to question the witnesses and elicit their answers. As already stated, the domain of the Sessions Judge is to find out whether the plea of bail can be granted or not. For that limited purpose, he could have asked the public prosecutor as to whether he has got any objection for release of the accused on bail. As a matter of fact, the order of the learned Sessions Judge passed in Crl.M.P.No.7974 of 2001 in paragraph-5 clearly indicates that the learned Special Public Prosecutor appearing for the respondent submitted that he had no objection, if a bail order is passed without going to the reasons for necessity of the arrest and the merits of the case. As a matter of fact, the order of the learned Sessions Judge passed in Crl.M.P.No.7974 of 2001 in paragraph-5 clearly indicates that the learned Special Public Prosecutor appearing for the respondent submitted that he had no objection, if a bail order is passed without going to the reasons for necessity of the arrest and the merits of the case. It has further been stated that the learned Special Public Prosecutor made an endorsement stating that in the context of the age and ailment and the accused will not flee from justice, bail may be ordered on suitable conditions. Under the circumstances, I am of the considered view that the recording of the statements of the two witnesses by the learned Sessions Judge is not for securing the ends of justice or for remedying flagrant abuse of power. The recording of the statements is totally unwarranted in this case. Those statements are likely to harm or prejudice the prosecution as held by the Supreme Court in the case of Raghubir Saran v. State of Bihar, (1963) 2 M.L.J. (S.C.) 21: (1963) 2 An. W.R. (S.C.) 21: (1964) M.L.J. (Crl.) 373. 13. When once those statements were held to be not the statements recorded under Sec. 164, Crl.P.C., then it amounts to parallel investigation by the Court, when investigation is already pending in the hands of the police. Though the Magistrate or the learned Sessions Judge may have control over the investigation, the power of interference with the investigation is not available. The learned Senior counsel relied on Sec. 159, Crl.P.C. for the proposition that the Magistrate has got every right to direct investigation. There cannot be any dispute over this proposition at all, because it is the law. After the first information is registered regarding a cognizable offence, it is the duty of the police to commence the investigation. Sec. 157, Crl.P.C. reads that when an officer incharge of a police station has reason to suspect the commission of an offence which he is empowered to investigate, he shall forthwith send a report of the same to a Magistrate empowered to take cognizance of such offence upon a police report and shall proceed in person, or shall depute one of his subordinate officers to investigate the facts and circumstances of the case. When such a report is sent to the Magistrate, the Magistrate may himself direct an investigation or depute any other Magistrate to hold a preliminary enquiry into the matter. 14. What is contemplated under Sec. 159, Crl.P.C. is, on receiving a report under Sec. 158, Crl.P.C, the Magistrate can either direct an investigation or if he thinks fit, at once proceed to hold a preliminary inquiry or depute any Magistrate subordinate to him to hold a preliminary enquiry. This does not mean that the Magistrate is empowered to conduct a parallel investigation side by side with the investigation done by the investigating agency. 15. Finally, the learned senior counsel Mr.R. Shanmugasundaram also contended that the learned Sessions Judge has got every right to invoke Sec. 311, Crl.P.C. The learned Sessions Judge also in his remarks has stated that bail is a proceeding as contemplated by Sec.2(i) of Crl.P.C. and therefore he has right to exercise the power available under Sec. 311, Crl.P.C. to enable the Court to arrive at the truth or otherwise of the fact under investigation by summoning and examining the witnesses who can give relevant evidence irrespective of the fact whether a particular party has summoned them or not According to the learned Sessions Judge, this Section confers a wide discretion to the Court to act as the exigencies of justice require. 16. In so far as Sec. 311 is concerned, the Court is empowered to summon any person as a witness or examine any person in attendance, though not summoned as witness. No doubt, Sec.2(i), Crl.P.C. defines “Judicial proceedings” including any proceedings in the course of which evidence is or may be legally taken on oath. Admittedly, the learned sessions Judge has not taken evidence on oath. Therefore, the statements recorded from the complainant and the investigating officer cannot be said to be recorded during the course of judicial proceedings at all. This definition not only stops with saying any proceeding in the course of which evidence is taken on oath," but it also goes to the extent of saying that evidence should be "legally taken on oath". Moreover, Sec. 311, Crl.P.C. also says the Court can summon or examine any person as a witness. This definition not only stops with saying any proceeding in the course of which evidence is taken on oath," but it also goes to the extent of saying that evidence should be "legally taken on oath". Moreover, Sec. 311, Crl.P.C. also says the Court can summon or examine any person as a witness. As already stated, in as much as oath is not administered to both the persons, those statements cannot be considered to be the statements of witnesses recorded by a Court of law. No Court can record the statements of any person except an accused or a juvenile without administering oath. Therefore, virtually those statements are not the statements of witnesses. Therefore Sec. 311, Crl.P.C. does not attract. 17. According to the learned Sessions Judge, the term "proceeding" available under Sec. 311, Cr.P.C. includes bail proceeding also. There are humpty number of proceedings under the criminal Procedure Code. In so far as the security proceedings under Sec. 107, 108, 109 and 110, Crl.P.C. are concerned, Sec. 16 is an enabling provision for the Court to take evidence and record the evidence as if recorded in a summons case. In the maintenance proceedings under Sec. 125, Crl.P.C, Sec.l26(2), Crl.P.C. is an enabling provision to record evidence in such proceedings as provided for recording of evidence in summons cases. Sec. 133, Cr.P.C. which deals with the removal of nuisance also enables the Court by Sec. 138 to take evidence. Under Sec. 145(4) and Sec. 147(2), Crl.P.C. also evidence can be recorded. Sec.202, Crl.P.C. is already there. Sec.202, Crl.P.C. reads that any Magistrate, may, if he thinks fit, take the evidence on oath. Under Sec.200, Crl.P.C. also, the Court can examine the complainant and witnesses. Therefore, the proceedings contemplated under Sec. 311, Cr.P.c. is a proceeding including a trial or an inquiry or other proceeding where the Court has got every right to record the evidence of witnesses. In so far as the bail proceeding is concerned, there is absolutely no provision nor any justification to record the statements of the complainant and the Investigating Officer only to elicit that there was no proper investigation. 18. In so far as the bail proceeding is concerned, there is absolutely no provision nor any justification to record the statements of the complainant and the Investigating Officer only to elicit that there was no proper investigation. 18. The learned Advocate General of Tamil Nadu arguing for the state relied on a ruling of the Supreme Court State of Maharashtra v. Ritesh S/o. Vasudeo Wanjari, (2001)4 S.C.C. 224 , rendered in the case of Their Lordships have held in that case as follows: "For releasing the respondent on bail, the High Court has ventured to refer to the merits of the case and prematurely held that there was no material on record to show that the respondent was guilty of conspiracy, in execution of which, the deceased was murdered." From this it is clear that while considering bail applications, it is not the duty of the Court to go into the merits of the case. But in this case, the learned Sessions Judge went to the extent of examining the prosecution witnesses and held that the complainant and Investigating Officer were questioned and there are several incriminating information in their answers. As I have already held, once the prosecution fails to make out a case to refuse bail, the learned Sessions Judge is empowered to grant bail without any further delay and the recording of the statements is not at all necessary for the release of the accused on bail, and the act of the learned Sessions Judge is not legally sustainable. Therefore, I hold that those statements are non-est in the eye of law. 19. After recording the statements of the complainant and the investigating officer while passing orders in Crl.M.P.No.7974 of 2001 which is the subject matter of dispute in Crl.O.P. No. 12798 of 2001 before this Court, the learned Sessions Judge in paragraph 4 of his order has stated as follows: "The complainant and the investigating officer were questioned and there are several incriminating informations in their answers." This portion of the order passed by the learned Sessions Judge is consequential to the statements recorded from those two persons. Once those statements are held to be non est in the eye of law by natural corollary, any comment based on those statements made by the learned Sessions Judge has to be necessarily expunged. 20. Once those statements are held to be non est in the eye of law by natural corollary, any comment based on those statements made by the learned Sessions Judge has to be necessarily expunged. 20. In so far as the power of this Court in expunging the remarks is concerned, the learned counsel Mr.S. Ramasamy appearing for other respondents took this Court to various rulings of the Apex Court herein under referred to. 21. The first one is the ruling of the Apex Court rendered in the case of The State of Uttar Pradesh v. Mohammad Nairn, A.I.R 1964 S.C. 703. The learned counsel relied on the following portion of the ruling of the Supreme Court: "If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this Court. At the same time it is equally necessary that in expressing their opinions Judges and Magistrates’ must be guided by considerations of justice, fair-play and restraint". In so far as the mandate of the Hon’ble Supreme Court is concerned, there can be no dispute that the judicial officer should be free from any fear or favour while dispensing justice. But at the same time, they have to be guided by considerations of justice, fair-play and restraint. 22. In this case, as I have already held in detail, the summoning of the complainant and recording of statements of the complainant and the investigating officer are not only unwarranted, but they are not germane to decide the issue before the Court and hence it amounts to flagrant abuse of power. Judges must exercise self restraint and should not make uncalled for remarks if they are not necessary for the decision of the case. As held by the Apex Court, the observations of the learned Sessions Judge consequent to the recording of the statements of the complainant and the investigating officer do not exhibit fair-play and restraint. The second portion of the judgment relied on by the learned counsel is that the judicial pronouncement must be judicial in nature, and should not normally depart from sobriety, moderation and reserve. The second portion of the judgment relied on by the learned counsel is that the judicial pronouncement must be judicial in nature, and should not normally depart from sobriety, moderation and reserve. It has already been held that the recording of the statements from those two persons and the consequent remarks are absolutely unnecessary to decide the case of bail to the accused involved in that case. Therefore, this portion of the ruling also does not justify the act of the learned Sessions Judge, since he has departed from normal functioning while considering the bail applications. Therefore, the ruling is of no avail to the respondents. 23. The next ruling relied on by the learned counsel is Jage Ram, Inspector of Police v. Hans Raj Midha, A.I.R 1972 S.C. 1140. The learned counsel only tried to justify the remarks and the act of the learned Sessions Judge in recording the statements of the said two persons and then relied on the last portion of the ruling wherein it has been held "none of the remarks to which exception has been taken, in our view could be described as unwarranted, unnecessary or irrelevant or can be characterised as generalisation or of a sweeping nature." But it has been clearly held with reasons in detail that the act of the Sessions Judge in recording the statements of those persons is totally unwarranted, unnecessary and rather irrelevant in this case. Therefore, this ruling is also of no avail to the respondents concerned. 24. Yet another ruling relied on is, reported in R.K. Lakshmanan v. A.K. Srinivasan, A.I.R. 1975 S.C. 1741 rendered in the case wherein their Lordships have held that the following are the tests to be applied in considering the expunction of remarks: "(i) Whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; (ii) Whether there is evidence on record bearing on that conduct justifying the remarks; and (iii) Whether it is necessary for the decision of the case, as an integral part thereof, animadvert on that conduct. Keeping in mind these propositions, opportunity to offer remarks on the request for expunction has already been provided to the learned Sessions Judge, while considering the grounds of justification for the remarks, it has clearly been held that there is absolutely no justification for the learned Sessions Judge to advert to examine and record the statements of the complainant and the investigating officer, while deciding the grant of bail and the same is also not necessary for taking a decision whether to grant bail or not. Once the prosecution has not produced any material to infer the guilt of the accused, the learned Sessions Judge could have released the petitioners on bail without any hesitation. But, it is unfortunate in this case that the learned Sessions Judge has chosen to examine two persons suo motu whose statements are not at all necessary for the decision of the case. Applying this ruling of the Apex Court, I hold that the action of the learned Sessions Judge is beyond his powers and the statements have to be necessarily quashed and the consequential remarks have to be expunged. 25. The last ruling relied on by the learned counsel is Ram Chander v. The State of Haryana, A.I.R. 1981 S.C. 1036 rendered in the case of The Hon’ble Supreme Court has only held that if a Criminal Court is to be an effective instrument in dispensing justice, the presiding judge must cease to be a spectator and a mere recording machine. He must become a participant in the trial by evincing intelligent active interest by putting questions to witnesses in order to ascertain the truth. But at the same time, the Supreme Court is categoric in saying that this he must do without unduly trespassing upon the functions of the Public Prosecutor and the defence counsel without any hint of partisanship and without appearing to frighten or bully witnesses. In this connection, it is pertinent to note that the learned Sessions Judge in offering his remarks has also relied on the address delivered by his Lordship Mr.Justice K.T.Thomas of the Apex Court in the inaugural function of Judicial Officers’ Training Academy. His Lordship was pleased to advice Judicial Officers not to be either sleeping judges or talking judges or even silent judges, but be participating judges, so that the presiding officer can understand the nature of the problems and deliver correct justice. His Lordship was pleased to advice Judicial Officers not to be either sleeping judges or talking judges or even silent judges, but be participating judges, so that the presiding officer can understand the nature of the problems and deliver correct justice. This does not mean that a presiding officer should poke into our area beyond his powers permitted by the Criminal Procedure Code or any other law for the time being in force. The Phrase “participation judge” has not been properly understood by the learned Sessions Judge. The Judge is expected not only to hear two sides, but also put necessary questions to elicit relevant answers to decide the issue before this Court. But in this case, the Sessions Judge cannot come under the garb of a “participating judge”, since his act of recording the statements of the complainant and the Investigating Officer at the time of considering the bail application of the accused is beyond the scope to decide the issue of grant of bail. Suppose both those persons give out circumstances and particulars leading to the incriminations against the accused person, whose bail application is pending before the Court, what could have happened? At that stage, there was no opportunity for the accused to cross examine the persons, whose statements were recorded by the judge. Would it not have prejudiced the accused and eliminate his right to get bail? Therefore, such an endeavour should not have been made by the learned Sessions Judge at the time of considering bail. 26. In so far as the order of the learned Sessions Judge passed in Crl.M.Ps. 8057, 8114, 8115, 8170, 8193 and 8194 of 2001 are concerned, the learned Advocate General of Tamil Nadu prays to expunge certain portions in paragraphs 6, 8, 9, 10 and 11 of the said order. 26. In so far as the order of the learned Sessions Judge passed in Crl.M.Ps. 8057, 8114, 8115, 8170, 8193 and 8194 of 2001 are concerned, the learned Advocate General of Tamil Nadu prays to expunge certain portions in paragraphs 6, 8, 9, 10 and 11 of the said order. With regard to paragraph-6, the learned Sessions Judge deals with the procedure for lodging of the first information report in corruption cases and the officer was not asked to offer his remarks on those matters, except one portion of the paragraph viz., “Normally in corruption cases unless there is necessity for interrogation of the accused which may lead to recovery of any document or material objects arrest is not made till chargesheet is filed.” The remarks of the Sessions Judge to the above said portion of his order is that the case has not been registered properly and the decision to arrest the accused has not been taken properly, since there was no necessity to arrest as contemplated in the judgment of the Supreme Court reported in Joginder Kumar v. State of U.P. and others, 1994 S.C.C. (Crl.) 1172 rendered in the case of The Hon’ble Supreme Court has categorically said that no arrest can be made because it is lawful for the police officer to do so. The existence of the power to arrest is one thing. The justification for the exercise of it is quite another. It would further say that no arrest can be made in a routine manner on a mere allegation of commission of an offence made against a person and would be prudent for a police officer in the interest of protection of the constitutional rights of a person and perhaps in his own interest that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief as to the person’s complicity and even so as to the need to effect arrest. This portion of the judgment of the Hon’ble Supreme Court is not only applicable to corruption cases, but to all cases. It is a caution as well as a guideline to the police officers while effecting arrest. This portion of the judgment of the Hon’ble Supreme Court is not only applicable to corruption cases, but to all cases. It is a caution as well as a guideline to the police officers while effecting arrest. The order of learned Sessions Judge does not say that no arrest should be made without a reasonable satisfaction reached after some investigation as to the genuineness and bona fides of a complaint and a reasonable belief both as to the person’s complicity and even so as to need to effect arrest. But what the learned Sessions has stated is that in corruption cases, unless there is a necessity for interrogation of the accused which may lead to recovery of any document or material objects, arrest is not made till chargesheet is filed. It is unfortunate that the learned Sessions Judge has not properly understood the tenor of the ruling of the Supreme Court. The Hon’ble Supreme Court has not said that arrest shall be made in corruption cases only where there is a necessity for interrogating the accused which may lead to recovery of any material objects. Therefore, this remark of the learned Sessions has to be necessarily expunged. 27. In so far as a portion of paragraph 8 of the order of the learned Sessions Judge is concerned, what is sought to be expunged is the following: “The case is registered even without conducting a detailed enquiry otherwise called preliminary investigation.” I do not think this portion of the learned Sessions Judge needs expunction. 28. Coming to paragraph-9 of the order, the only portion to which expunctions is sought for is viz., “the Investigating Officer has further admitted that none of the accused obtained pecuniary advantage in the matter of preparing estimates or in the construction of mini flyovers”. This remark is based on the statements recorded from Mr.N. Padmanabhan, C.B.. C.I.D. Branch, Chennai. Since the said statement have already been quashed as non est, this portion of the learned Sessions Judge alone has to be necessarily expunged. 29. In so far as paragraph-10 of the order, the portion starting with “The learned Special Public Prosecutor” and ending with “Provision of Sec. 162, Crl.P.C.” is concerned, it is no doubt an unwarranted observation. Since the said statement have already been quashed as non est, this portion of the learned Sessions Judge alone has to be necessarily expunged. 29. In so far as paragraph-10 of the order, the portion starting with “The learned Special Public Prosecutor” and ending with “Provision of Sec. 162, Crl.P.C.” is concerned, it is no doubt an unwarranted observation. The learned Sessions Judge says that even a month ago councillors, Politicians presented a petition before Her Excellency the Governor of Tamil Nadu and also to the Hon’ble Chief Minister and the learned Special Public Prosecutor was unable to say what happened to those complaints and whether those complaints have been thrown to dust bin, since the complaints are false and politically motivated or pending investigation. The learned Sessions Judge went to the extent of saying that if the complaint is under investigation, the present complaint by the Commissioner, Corporation of Chennai will be hit by the provision of Sec. 162, Crl.P.C. I am afraid, yet again, the learned Sessions Judge has not properly under-stood the import of Sec. 162, Crl.P.C. This is a case where investigation has to start after registering the case by the police. Before registration of a case, many number of petitions could have been filed before many authorities. But, they cannot form part of the first information report at all unless they are forwarded to the police for registration of a case. The first information report is the information that reaches the police concerned enabling the police to register a case. In this case, the complaint given by the Commissioner of Corporation of Chennai is the first information report on which a case has been registered. The complaints given to Her Excellency the Governor of Tamil Nadu or the Hon’ble Chief Minister by the Councillors, Politicians cannot form part of the first information report at all. They may only be statements of the signatories concerned. In case those statements are beneficial to the accused, they can be called for during the course of trial and then the benefit accrued therein can be utilised by the accused subject to the provisions of the Crl.P.C. and Evidence Act. They may only be statements of the signatories concerned. In case those statements are beneficial to the accused, they can be called for during the course of trial and then the benefit accrued therein can be utilised by the accused subject to the provisions of the Crl.P.C. and Evidence Act. By no stretch of imagination, it can be said that the complaint given by the Commissioner, Corporation of Chennai, on which the police registered a case will be hit by Sec. 162, Crl.P.C. It is not the contention of the learned Sessions Judge that the Commissioner, Corporation of Chennai presented similar complaint to the Governor or the Chief Minister. Therefore, the observations made by the learned Sessions Judge as to whether those complaints have been thrown to the dust bin, since the complaints are false and politically motivated, are not only unwarranted, but uncalled for also. Therefore, the abovesaid portion of the order of the learned Sessions Judge requires to be expunged. 30. In so far as paragraph-11 is concerned, the learned Sessions Judge only deals with the reasons for the release of the accused on bail. With regard to the last portion of the order of the learned Sessions Judge that if the respondent wants to interrogate Thiru M.K. Stalin, Mayor, Corporation of Chennai, they must serve a notice one day earlier specifying place and time for his appearance for interrogation and two counsel of his choice may be permitted to accompany him during interrogation, it is an order passed by the learned Sessions Judge and not an observation made by him. Therefore, it can only be assailed by way appeal or revision and it cannot be expunged. The petitions before this Court are only for expunging of remarks and not otherwise. Therefore, I am not inclined to go into the merits of the direction given by the learned Sessions Judge in this regard. 31. In the result, in the order passed by the learned Sessions Judge in Crl.M.P.No.7974 of 2001, the statements recorded by the learned Sessions Judge from Mr.J.T. Acharyalu, Commissioner, Corporation of Chennai and the statement recorded from Mr.N. Padmanabhan, the investigating Officer, C.B. C.I.D. are quashed and the consequential remarks in paragraph 4 of the order stand expunged 32. With regard to the order of the learned Sessions Judge passed in Crl. M.P.Nos. With regard to the order of the learned Sessions Judge passed in Crl. M.P.Nos. 8057, 8114, 8115, 8170, 8193 and 8194 of 2001, the following portions of the order stand expunged. (i) "Normally in corruption cases unless there is a necessity for interrogation of the accused which may lead to recovery of any document or material objects arrest is not made till chargesheet is filed."; (ii) "The investigating officer has further admitted that none of the accused obtained any pecuniary advantage in the matter of preparing estimates or in the construction of mini flyovers." and (iii) "The learned Special Public Prosecutor is not able to say what happened to these complaints whether these complaints have been thrown to dust bin since the complaints are false and politically motivated or pending investigation. If the complaint is under investigation, the present complaint by the Commissioner, Corporation of Chennai will be hit by the provisions of Sec. 162, Crl.P.C." 33. To the above extent, the petitions stand allowed.