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2002 DIGILAW 554 (KER)

P. Ajaya Babu v. The State of Kerala

2002-08-13

T.M.HASSAN PILLAI

body2002
Judgment :- The grievance highlighted on behalf of the petitioner by his learned counsel is that uncharitable, unmerited and irrelevant remarks have been made by the learned 1st Additional Sessions Judge against the petitioner for non-compliance of Sections 42 and 50 of the Narcotic Drugs and Psychotropic Substances Act, 1985 (for short ‘the Act’) and also for conducting investigation after detecting the crime by the petitioner, who was the Sub Inspector of Police, Kottarakkara Police Station at the material time of detecting and investigating crime No.132 of Kottarakkara Police Station, totally ignoring the well settled legal position laid down by the apex court in a catena of decisions against making of disparaging and undeserving remarks on persons appearing before him as witnesses or otherwise by a judge or a magistrate. The petitioner was examined as PW.7 in S.C.No.327 of 1998 on the file of the 1st Additional Sessions judge, Kollam and it was he who detected, and investigated crime No.132 of 1998 of Kottarakkara Police Station. The learned Sessions Judge also directed to proceed against the petitioner under Section 59(1) of the Act. 2. The learned 1st Additional Sessions Judge, on an evaluation of the evidence led by the prosecution in support of its case, came to the conclusion that there was violation or contravention of Sections 42 and 50 of the Act by the petitioner and also found fault with the petitioner for conducting the investigation by himself. 3. Learned Public Prosecutor submitted before me that in view of the decision rendered by a Division Bench of this Court in Khader v. State of Kerala (2001 (2) KLT 407), the petitioner cannot be faulted for conducting the investigation of the crime No.132 of Kottarakkara Police Station detected by him. This Court in the above decision held thus: “Unlike usual cases under the Criminal Procedure Code, in cases under the NDPS Act, by the time of arrest, main part of investigation will be completed and duty of the investigating officer is mainly in sending the samples for chemical analysis and other routine work and there is no likelihood of any prejudice in usual circumstances. Therefore, we are of the opinion that merely because a detecting officer himself is investigating officer or the officer of the same rank as that of the detecting officer is investigating the case and files report before the court will not vitiate the proceedings under N.D.P.S. Act in the absence of proof of specific prejudice to the accused. So, I find no merit in the unmerited and unjustified criticism by the learned Sessions Judge for conducting the investigation of the case by the petitioner, who detected the crime. 4. I am not sitting in judgment over the judgment and order of acquittal passed by the learned Additional Sessions Judge and, therefore, I am not persuaded to accede to the submission made by the learned counsel for the petitioner and also by the learned Public Prosecutor that evidence on record only shows that the contraband (Ganja) wrapped in a piece of red coloured sari was seized from the possession of the accused in S.C.327/1998, learned 1st additional Sessions Judge was not at all justified in acquitting the accused on the grounds of non-compliance of Section 50 of the Act or conducting of the search of the person of the accused in the presence of a gazetted officer, who is not a gazetted officer of any department mentioned in Section 42 of the Act. It is also to be pointed out here that I need not dwell on the question whether the search of the person of the accused was conducted by the petitioner and whether the contraband was seized as a result of the search of the person of the accused. The contention urged before me is that contraband was not seized from the accused as a result of search of the person of the accused. So such a contention urged before me by the counsel for the petitioner and Public Prosecutor cannot be countenanced and cannot also be adverted to or considered. 5. It is clear from the judgment rendered by the 1st additional Sessions Judge, Kollam that PW.3, in whose presence the search was conducted by PW.7 is not a gazetted officer of any department mentioned in Section 42 of the Act and the learned Judge indicted PW.7 for not securing presence of a gazetted officer of any department mentioned in Section 42 of the Act at the time of the alleged search of the person of the accused. 6. The disparaging, unmerited, uncharitable and irrelevant remark made by the learned Sessions Judge against which grievance is voiced in this petition by the petitioner is to be extracted here. “As mentioned already PW7 admitted that PW3 was not such a gazetted officer. So actually the search was conducted in the absence of a gazetted officer and the mandatory provision of Sec.50 of the N.D.P.S. Act was violated. PW7 justified the action by stating that no such gazetted officer was available on that day being a Sunday. But that was no reason to dispense with the mandatory requirement. Sec.50 of the N.D.P.S. Act itself gives ample power to the investigating officer to detain the accused until he could bring her before such a gazetted officer, or a Magistrate. Ordinarily the Magistrate and superior officer in the police department itself would be available in the station always. The deliberate violation was really to help the accused and it cannot be viewed lightly.” 7. Before dealing with the question whether casting aspersions by the judge is justified and whether the aspertions cast are to be expunged or not, the legal position well settled is to be stated. 8. This Court can in exercise of its inherent jurisdiction, expunge the remarks made by it or by a court subordinate to it 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 exceptional nature and has to be exercised in exceptional cases only. 9. The fundamental principle of jurisprudence is that the judgment of a criminal court, however inferior it may be in the hierarchy, is final and it can only be modified in the manner prescribed by law governing such procedure. If uncharitable and unmerited and irrelevant remarks are made against a witness without any foundation whatsoever, the High Court exercising its inherent powers under section 482 Cr.P.C. can expunge such remarks made by the Judge or Magistrate. In the administration of justice, one principle of cardinal importance is that proper independence of judges and magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by the High Court or by the Supreme Court. In the administration of justice, one principle of cardinal importance is that proper independence of judges and magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by the High Court or by the Supreme Court. In expressing their opinion, judges and magistrates must be guided by considerations of justice, fairplay and restraint in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law. 10. In order to maintain the independence of judiciary it is very necessary that every Judge or Magistrate, however junior, should feel that he can fearlessly express his own opinion in the judgment which he deliver. The independence of judiciary might be seriously undermined if a Judge or Magistrate feel that they cannot frankly and fearlessly deal with the matters that come before them an that the High Court is likely to interfere with their opinion. While expressing his own opinion, it is relevant for the judge or magistrate to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognized that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve. (see State of U.P. v. Mohd. Naim (AIR 1964 SC 703). 11. Dealing with the power of a superior court while exercising its inherent powers to expunge remarks made by a Judge, the following observation has been made by the Supreme Court in Raghubir Saran v. State of Bihar (AIR 1964 (SC) 1): “I reiterate that every judicial officer must be free to express his mind in the matter of the appreciation of evidence before him. The phraseology used by a particular judge depends upon his inherent reaction to falsehood, his comparative command of the English language and his felicity of expression. The phraseology used by a particular judge depends upon his inherent reaction to falsehood, his comparative command of the English language and his felicity of expression. There is nothing more deleterious to the discharge of judicial functions than to create in the mind of a judge that he should conform to a particular pattern which may, or may not be, to the liking of the appellate court. Sometimes he may overstep the mark. When public interests conflict, the lesser should yield to the larger one. An unmerited and undeserved insult to a witness may have to be tolerated in the general interests of preserving the independence of the judiciary. Even so, a duty is cast upon the judicial officer not to deflect himself from the even course of justice by making disparaging and undeserving remarks on persons that appear before him as witnesses or otherwise. Moderation in expression lends dignity to his office and imparts greater respect for judiciary. But occasions do arise when a particular judge, without any justification, may cast aspersions on a witness or any other person not before him affecting the character of such witness or person. Such remarks may affect the reputation or even the career of such person. In my experience I find such cases are very rare. But if it happens, I agree with the full bench of Bombay High Court that the appellate court in a suitable case may judicially correct the observations of the lower court by pointing out that the observations made by that court were not justified or were without any foundation were wholly wrong or improper. This can be done under its inherent power preserved under s.561-A of the Code of Criminal Procedure. But that power must be exercised only in exceptional cases where the interest of the Party concerned would irrevocably suffer. 12. This can be done under its inherent power preserved under s.561-A of the Code of Criminal Procedure. But that power must be exercised only in exceptional cases where the interest of the Party concerned would irrevocably suffer. 12. I may repeat that while considering the question whether remarks made by a Judge are to be expunged or not it should be borne in mind that:-(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; and (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. 13. The settled position of law is that before any castigating remarks are made by the court against any person, particularly when such remarks could ensure serious consequences on the future career of the person concerned, he should be given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Giving of such an opportunity is the basic requirement and if no opportunity is given, the offending remark would be in violation of the principles of natural justice. The above stated position of law is laid down by the Supreme Court in Manish Dixit v. State of Rajasthan (2000 AIR SCW 3914), State of Rajasthan v. Mohad Naim (AIR 1964 SC 703), Ch.Jage Ram v. Hans Raj Midha (AIR 1972 SC 1140), R.K. Lakshmanan v. A.K.Srinivasan (AIR 1975 SC 1741), Niranjan Patnaik v. Sashibhushan kar (AIR 1986 SC 819), and State of Karanataka v. Registrar General (AIR 2000 SC 2626). 14. The following observation has been made by the Supreme Court in the matter of K.a.Judicial Officer (2001 AIR SCW 650): “8. The primary purpose of pronouncing a verdict is to dispose of the matter in controversy between the parties before it. 14. The following observation has been made by the Supreme Court in the matter of K.a.Judicial Officer (2001 AIR SCW 650): “8. The primary purpose of pronouncing a verdict is to dispose of the matter in controversy between the parties before it. A Judge is not expected to drift away from pronouncing upon the controversy, to sitting in judgment over the conduct of the judicial and quasi-judicial authorities whose decisions or orders are put in issue before him, and indulge into criticising and commenting thereon unless the conduct of an authority or subordinate functionary or anyone else than the parties comes of necessity under review and expression of opinion thereon going to the extent of commenting or criticising becomes necessary as a part of reasoning requisite for arriving at a conclusion necessary for deciding the main controversy or it becomes necessary to have animadverted thereon for the purpose of arriving at a decision on an issue involved in the litigation. This applies with added force when the superior Court is hearing an appeal or revision against an order of a subordinate judicial officer and feels inclines to animadvert on him. The wisdom of a superior Judge itching for making observations on a subordinate Judge before ventilating into expression must pause for a moment and read the counsel of Cardozo—“Writ an opinion, and read it a few years later when it is dissected in the briefs of counsel. You will learn for the first time the limitations of the power of speech, or, if not those of speech in general, at all events of your own. All sorts of gaps and obstacles and impediments will obtrude themselves before your gaze, as pitilessly manifest as the hazards on a golf course. Sometimes you will know that the fault is truly yours, in which event you can only smite your breast, and pray for deliverance thereafter.” (Essays on Jurisprudence, Columbia Law Review, 1963 at p.315).” 15. The Supreme Court approvingly quoted the observation made by Sulaiman, J. in Panchanan Banerji v. Upendra nath Bhattacharji (AIR 1927 All. Sometimes you will know that the fault is truly yours, in which event you can only smite your breast, and pray for deliverance thereafter.” (Essays on Jurisprudence, Columbia Law Review, 1963 at p.315).” 15. The Supreme Court approvingly quoted the observation made by Sulaiman, J. in Panchanan Banerji v. Upendra nath Bhattacharji (AIR 1927 All. 193) in Niranjan Patnaik v. Sashibhushan kar, AIR 1986 SC 819: “The High Court, as the Supreme Court of revision, must be deemed to have power to see that Courts below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it.” “Settled law is that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before Court of law unless it is rally necessary for the decision of the case, as an integral part thereof to animadvert on that conduct. 16. Even assuming that a serious evaluation of the evidence of the petitioner was really called for the remarks of the learned Judge should have been in conformity with the settled practice of Courts to observe sobriety, moderation and reserve. The higher the forum and greater the powers, the greater the need for restrain and the more mellowed the reproach should be. 17. Though Sessions Judge has power to make remarks or observations, it should not be overlooked or forgotten that on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of the following tests:-- (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. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve. 18. A passage which is likely to militate seriously against a party’s earning livelihood and not necessary to the conclusion of the Judge, nor even necessary to his argument, should be expunged from the judgment. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve. 18. A passage which is likely to militate seriously against a party’s earning livelihood and not necessary to the conclusion of the Judge, nor even necessary to his argument, should be expunged from the judgment. It is a general principle of highest importance that a derogatory remark 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. The Supreme Court in A.M.Mathur v. Pramod Kumar Gupta (1990 (2) SCC 533 = AIR 1990 SC 1737) observed thus: “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 functions 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 independency of the judiciary. Judicial restrain 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 co-ordinate branches of the State, the executive, and 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.” 19. The question is one of impelling need, justification and propriety of making the remark, though the courts do have power to express opinion, make observations and even offer criticism on the conduct of anyone coming within their gaze of judicial review. 20. No opportunity of being heard was given to the petitioner by the learned Sessions Judge before the remarks or strictures were made. The remark made by the learned Sessions Judge has cast a serious aspersion on the petitioner affecting his character and reputation and may ultimately affect his career also. Condemnation of the petitioner without giving an opportunity of being heard is complete negation of the fundamental principle of natural justice. In my view, the learned Sessions Judge should not have made such comments against the witness (petitioner herein) in such a manner as to entail serious implications on his career. 21. Condemnation of the petitioner without giving an opportunity of being heard is complete negation of the fundamental principle of natural justice. In my view, the learned Sessions Judge should not have made such comments against the witness (petitioner herein) in such a manner as to entail serious implications on his career. 21. The explanation given by the petitioner in his evidence for conducting the search of the person of the accused in the presence of a Gazetted Officer of a department not mentioned in Section 42 of the Act was that being a Saturday, no such gazetted officer was available. Whether the non-availability of such a gazetted officer is a ground for conducting the search in the presence of a gazetted officer who is not mentioned in Section 42 of the Act is an altogether different question (it appears that the Act does not empower him to conduct such a search of the person of the accused in the presence of a gazetted officer and it is submitted that divergent views are expressed by this Court). It appears that the learned Sessions Judge has not believed the evidence given by the petitioner on that aspect on the ground that “ordinarily the Magistrate and superior officer in the Police Department will be available in the station always”. That is an assumption made by the learned Sessions Judge without any material on record to show that any magistrate or gazetted officer of a department mentioned in Section 42 of the Act was available in station. Both the Public Prosecutor and the learned counsel for the petitioner submitted that no evidence whatsoever was available in the case to prove the availability of any Gazetted Officer of any department mentioned in Section 42 of the Act. Both of them contended vigorously that jumping to a conclusion by the learned Sessions Judge that the deliberate violation of Section 42 and 50 was really to help the accused is not warranted or justified by any material on record. It is fairly submitted before me that the evidence available is to the effect that the accused, from whom the contraband was alleged to be seized, was an illiterate Tamil lady who has no acquaintance with the petitioner and petitioner is an utter stranger to her. It is fairly submitted before me that the evidence available is to the effect that the accused, from whom the contraband was alleged to be seized, was an illiterate Tamil lady who has no acquaintance with the petitioner and petitioner is an utter stranger to her. Learned Public Prosecutor submitted that the State has no complaint against the petitioner that search was not conducted in the presence of a gazetted officer mentioned in Section 42 of the Act by the petitioner in order to help the accused and I need not state that there is no such case for the accused. 22. The direction given by the learned Judge to prosecute the petitioner for the alleged commission of the offence punishable under Section 59(1) of the Act is also unsustainable on the ground that Section 59(1) of the Act is not attracted to the facts of the case. Section 59(1) reads thus: “59(1) Any officer on whom any duty has been imposed by or under this Act and who ceases or refuses to perform or withdraws himself from the duties of his office shall, unless he has obtained the express written permission of his official superior or has other lawful excuse for so doing, be punishable with imprisonment for a term which may extend to one year or with fine or with both.” There is no materials on record to prove that the petitioner ceased or refused to perform or withdrew himself from the duties of his office. 23. In many cases registered under the Act this Court had occasion to come across detecting officer conducting search of the person of the accused not in the presence of a gazetted officer of a department mentioned in Section 42 of the Act and from the mere fact that the search in the case was conducted in the presence of an officer not mentioned in Section 42 of the Act it cannot be assumed or presumed that the investigating officer ceased or refused to perform or withdraw himself from the duties of his office. So, the prayer in this petition is to be allowed. So, the prayer in this petition is to be allowed. In the result, this Crl.M.C. is allowed expunging the remarks made against the petitioner by the first Additional Sessions Judge, Kollam in the judgment rendered by him in S.C.No.327 of 1998 and the direction given by the learned 1st Additional Sessions Judge to prosecute the petitioner for the alleged commission of the offence punishable under Section 59(1) of the Act is also unsustainable and stands set aside.