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Madhya Pradesh High Court · body

2005 DIGILAW 147 (MP)

K. P. Singh Kushwaha v. State of M. P.

2005-02-01

S.L.KOCHAR

body2005
ORDER 1. This petition under section 482 of the Code of Criminal Procedure has been filed for expungment of remarks and directions made against the applicant by the learned Special Judge, Shajapur, in his judgment passed in Special Case No. 85/2004 on 6.10.2004. 2. The facts giving rise to this petition are that the applicant was posted as SDO (Police), Sarangpur, on 28.3.2004 and continued to be so till date. One Nandubai Pardi, a member of Scheduled Caste, lodged a report on 28.3.2004 that on 27.3.2004, at about 2100-2200 hrs., she was ravished by one Vishnu by the side of the road near village Sarli while she was on the way to her house. On this report, Crime No.237/04 was registered for the offence under section 376, Indian Penal Code and section 3(1) (xii) and 3(2) (v) of the SC & ST (Prevention of Atrocities) Act, 1989, against accused Vishnu. On 9.4.2004, Harisingh, husband of the complainant Nandubai, made an application to the applicant stating therein that the report lodged by his wife (the complainant) was a false one and it was based on suspicion and lodged out of anger and he does not wish any action to be taken on the basis of that report. To that effect, the complainant also swore an affidavit on 2.4.2004. The applicant recorded the statements of the complainant and her husband. Thereafter, the statement of the complainant was recorded by the Judicial Magistrate First Class, Sarangpur, under section 164 of the Code of Criminal Procedure. In this statement, the complainant stated that the accused Vishnu did not commit any rape with her. After due investigation, the applicant arrested the accused on 26.6.2004 and submitted challan against him for the offence under section 354, Indian Penal Code and section 3(1) (xi) of the SC and S1' (Prevention of Atrocities) Act, 1989, in accordance with the opinion given Additional Public Prosecutor. 3. The learned Magistrate was of the opinion that case under section 376, Indian Penal Code and section 3(2) (v) of the aforesaid Act was made out, therefore, he committed the accused for trial by the Special Judge, Distt. Shajapur. During trial, the complainant was examined as PW 1 and her husband as PW 2. The applicant was also examined as PW 6 on 15.9.2004. Shajapur. During trial, the complainant was examined as PW 1 and her husband as PW 2. The applicant was also examined as PW 6 on 15.9.2004. The learned trial Judge, i.e., the Special Judge, vide judgment dated 6.10.2004, acquitted the accused of the charges holding that the statement of the prosecutrix were contradictory and were not corroborated by medical evidence and the prosecution failed to prove the charges. The learned trial Judge, after recording acquittal of the accused in para 25, made adverse comments against the conduct of the applicant in the investigation in paras 26 to 34 of the judgment and gave directions in para 35. Consequently, the Director General of Police, M.P., Bhopal, was informed accordingly with direction to punish the applicant after holding a departmental enquiry against him. 4. The applicant has filed this petition for expungment of the remarks made by the trial Court in para 35 of the judgment. 5. The contention of the learned counsel for the applicant is that the remarks passed in paras 26 to 35 do not form integral part of the judgment, which was complete in itself upto para 25 thereof. In para 25, the learned trial Court has finally passed the judgment of acquittal of the accused Vishnu after appreciation of evidence on record. In this para, the learned trial Court has also discharged the personal and surety bonds of the accused after delivery of judgment in Special Case No.8512004. Learned counsel has also submitted that though the judgment is complete upto para 25 of the judgment, but, the learned trial Court in para 26 has mentioned that before completion of the judgment, passing of some remarks is necessary against the Investigation officer (applicant herein) with regard to investigation done by him though the judgment is finally concluded in para 25. It has also been contended by the learned counsel for the applicant that before passing of the remarks, no opportunity to explain the circumstances was provided to the applicant. Therefore, the order of passing of remarks is contrary to the principles of natural justice. Lastly, the learned counsel submitted that on appreciation of evidence on record, no such conclusion could be drawn that the appellant did not investigate the crime impartially, and illegally helped the accused. 6. Learned counsel for the applicant in support of his contention and submission, cited the following judgments: 1. Lastly, the learned counsel submitted that on appreciation of evidence on record, no such conclusion could be drawn that the appellant did not investigate the crime impartially, and illegally helped the accused. 6. Learned counsel for the applicant in support of his contention and submission, cited the following judgments: 1. State of Uttar Pradesh v. Mohammad Naiem [ AIR 1964 SC 703 ] 2. Dr. Dilip Kumar v. State of Assam [ (1996) 6 SCC 234 ], 3. A.M. Mathur v. Shri Pramod Kumar Gupta [1990 JLJ 340 (SC)], and, 4. State of West Bengal v. Balnt Chakraborty [AIR 2004 SC 4324]. 7. Having heard learned counsel for the parties and after perusing the relevant documents filed by the applicant, this Court is of the view that the learned trial Court has failed to consider the guidelines laid down by the Supreme Court in the case of State of U.P. v. Mohd. Naiem (supra). His Lordship Shri S.K. Das, speaking for the four Judges' Bench, has held in para 10 of the judgment as under: "The last question is, is the present case a case of an exceptional nature in which the learned judge should have exercised his inherent jurisdiction under S. 561A, CrPC in respect of the obsersations complained of by the State Government ? If there is one principle of cardinal importance -- in the administration of justice, it is this: the proper freedom and independance of judges and Magistrates must be maintained and they must be allowed to perform their function 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-plan and restraint. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities; whose conduct comes into consideration before Courts of law in cases to be decided by them, it is relevant to consider (a) whether the patty 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 recognised that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve." 8. Disparaging remarks and directions issued by the learned trial Court does not fulfil the abovementioned guidelines fixed by the apex Court and the same have been quoted with approval and applied by the Supreme Court in catina of judgments out of which some are Dr. Dilip Kumar v. State of Assam, A.M. Mathur v. Shri Pram ad Kumar Gupta and State of West Bengal v. Babu Chakraborty (ibid). 9. The learned trial Court, in its entire judgment, which has been legally concluded in para 25, has finally recorded the finding of acquittal and acquitted the accused Vishnu Prasad as per provision under section 235, Criminal Procedure Code and his personal and surety bonds were also ordered to be discharged, has not discussed about illegality, irregularity, impropriety or mala fide intention of the applicant regarding showing the fact that the applicant did not investigate the reported incident impartially and extended illegal help to the accused Vishnu Prasad. Learned Court below, without issuing any show cause notice to the applicant, passed the disparaging remarks and also issued positive direction for holding a departmental enquiry against the applicant and to punish him. In para 34, the learned Judge of the trial Court has mentioned that before passing of the adverse remarks against the applicant, the explanation was sought from him during the course of recording of his statement as prosecution witness and the applicant could not furnish satisfactory explanation therefor. This Court has perused the statement of the applicant who was examined by the prosecution as PW 6. In his statement, learned trial Court has, after completion of examination-in-chief, put to many questions with regard to investigation, recording of two statements of the prosecutrix Nandubai (PW 1) under S. 161 of the Code of Criminal Procedure, and her husband (PW 2) Harisingh. Nandubai (PW 1) has denied the commission of rape upon her by the accused in her statement recorded under section 164 of the Criminal Procedure Code whereas in the first information report, she has alleged about commission of rape. She has also stated that after lodging of the first information report, she entered into a compromise. Inspite of this, why the applicant did not proceed against the prosecutrix for lodging false first information report? She has also stated that after lodging of the first information report, she entered into a compromise. Inspite of this, why the applicant did not proceed against the prosecutrix for lodging false first information report? In reply to this question, the applicant submitted that he sought opinion from the Assistant Public Prosecutor, Sarangpur, regarding change of stand of the prosecutrix. The learned Prosecutor opined for filing the charge-sheet on the basis of the statement recorded under section 164 of the Code of Criminal Procedure for the offence under section 354, Indian Penal Code so that the matter may be decided by the Court of law. 10. Learned trial Court, in para 32, has mentioned that the applicant came to know on the basis of the police statement Ex. D-3 and D-5 of the prosecutrix that she lodged the false report against the accused, the applicant should have initiated the proceedings against the prosecutrix for lodging false report. It is also mentioned in this para that when the first information report was disclosing commission of offence under section 376, IPC, either the applicant could have filed the charge-sheet for this offence or could have filed Khatma report. But, the applicant has filed the charge-sheet only for the offence under section 354, IPC. For this purpose, the applicant had already given reply that he acted on the opinion and advice given by the APP and in view of this Court, the applicant could not act beyond the opinion and advice given by the APP. The learned trial Court has also considered the fact of delay in the arrest of the accused though his name was mentioned in the first information report lodged on 28.3.2004, but he was arrested on 26.6.2004. The learned trial Court has also mentioned that the applicant failed to assign any reason for delay of three months in the arrest of the accused. 11. This Court has carefully gone through the certified copy of the statement of the applicant (Ex. A-9) and found that no question was put to the applicant giving him an opportunity to explain the delay in the arrest of the accused. Learned trial Court has also considered the statement of the husband of the prosecutrix, i.e., PW 2 Harisingh, who has stated that the applicant had got prepared the affidavit of the prosecutrix marked as Ex. A-9) and found that no question was put to the applicant giving him an opportunity to explain the delay in the arrest of the accused. Learned trial Court has also considered the statement of the husband of the prosecutrix, i.e., PW 2 Harisingh, who has stated that the applicant had got prepared the affidavit of the prosecutrix marked as Ex. D-2 and in the said affidavit, the prosecutrix has mentioned that no incident of rape happened with her and she lodged the false report. The learned Court in para 28 also considered the statement of the prosecutrix PW 1 Nandubai that the affidavit was got prepared by one Premnarayan, the relative of the accused. The allegations which have been levelled by witness PW 2 Harisingh with regard to preparation of affidavit at the instance of the applicant, no question was put on this aspect by the trial Court or the Advocates of other party to the applicant. The learned trial Court passed the major remarks which are not" the integral part of the judgment which has been concluded in para 25 of the judgment regarding allegation of preparation of affidavit Ex. D-2 as well as delay in the arrest, no opportunity was given to the applicant even when he was examined as a witness for prosecution. Therefore, the same could not have been relied upon by the trial Court. 12. The disparaging remark against the applicant and issuance of direction by the trial Court to the Director General of Police to hold departmental enquiry and to punish the applicant, is not the integral part of the judgment and no show cause notice was issued to the applicant before passing the disparaging remarks and issuing directions to the authority. The action of the learned trial Court is just contrary to the guidelines laid down by the Supreme Court in the case of Mohammad Naiem (supra) as mentioned hereinabove. Therefore, this Court is of the considered view that the order passed by the learned trial Court passing disparaging and adverse remarks against the applicant in paras 32, 33 and 35 of the judgment and issuance of directions for holding departmental enquiry and punishing him, in para 35 are not sustainable in the facts and circumstances of the case. 13. Therefore, this Court is of the considered view that the order passed by the learned trial Court passing disparaging and adverse remarks against the applicant in paras 32, 33 and 35 of the judgment and issuance of directions for holding departmental enquiry and punishing him, in para 35 are not sustainable in the facts and circumstances of the case. 13. It would be pertinent to mention here that even if the trial Court would have passed the adverse remarks against the applicant following the norms fixed by the Supreme Court in the case of Mohammad Naiem (supra) it has no jurisdiction to direct the authority for initiation of departmental enquiry and to punish the applicant. At the most, the learned trial Court, after passing the adverse remarks, could have directed the superior authority to take necessary action in accordance with law. 14. The Criminal Courts have full power and authority to pass adverse remarks against the Investigating Agency and witnesses and also has power for issuing direction to the concerned authority to take necessary action in accordance with law, but while doing so, the Criminal Courts are required to follow the three norms as laid down by the Supreme Court in the case of Mohammad Naiem (supra). The adverse remarks should be passed against the Investigating Agency with a view to point out their inherent illegality and lapses in investigation which give benefit to the guilty person, so that they may improve in future and their superior authority may also know about the way and working of Subordinates and they may also provide them proper facility and guidance for proper and effective investigation in accordance with law so that the guilty person may not escape from the eye of law. 15. As a result of the foregoing discussion, this petition under section 482 of the Code of Criminal Procedure in allowed and the adverse remarks passed by the trial Court against the applicant in paras 32, 33 and 34 of the judgment are expunged and the direction for holding departmental enquiry against the applicant and to punish him, is hereby set aside. 16. Let a copy of this order be sent to the trial Court immediately for information and guidance. .......................