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2013 DIGILAW 839 (MP)

Girish Kumar Jain v. State of M. P.

2013-07-22

M.C.GARG, SHANTANU KEMKAR

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JUDGMENT Shantanu Kemkar, J. This petition under Section 482 of Criminal Procedure Code is filed by the applicant seeking expungement of remarks and strictures made against him by the Special Judge, Prevention of Corruption Act, Ujjain while delivering the judgment of conviction dated 16-4-2012 in Special Case No. 3/10 against one Prabhu Dayal Bhendwal and also seeking quashment of the FIR registered at Crime No. 121/13 by the Special Police Establishment Lokayukta in pursuance to the said adverse remarks/strictures. 2. Briefly stated, the respondent/Special Police Establishment, Ujjain filed a challan against one Prabhu Dayal Bhendwal for offence under Section 13(1)(d) read with Section 13(2) of the Prevention of Corruption Act alleging therein that one Sanjay Tawani-complainant had purchased one LIG Second/2 House situated at World Bank Colony, Agar Road, Ujjain from M.P. Housing Board and to register the same from Housing Board, the said Prabhu Dayal Bhendwal, employee of the Housing Board demanded Rs. 25,000/- as illegal gratification. On being reported the matter to the Special Police Establishment, a trap was conducted and he was caught red handed. In the case registered against the said Prabhu Dayal Bhendwal, the applicant being an Executive Engineer and Estate Officer of Housing Board was examined before the Trial Court as a witness. In the judgment passed by the Trial Court on 16-4-2012 convicting the accused-Prabhu Dayal Bhendwal, the Trial Court made adverse observations in Paragraph Nos. 64 to 69 against the applicant. 3. On the basis of the said observations and adverse remarks made by the Trial Court, the respondent-Lokayukta Establishment held a preliminary enquiry and, therefore, lodged an FIR on 11-5-2013 against the applicant. 4. Feeling aggrieved, the applicant has filed this M.Cri.C. seeking expunction of remarks and for quashment of the FIR which was registered on the basis of the said remarks/observations made by the learned Special Judge, Ujjain. 5. Shri Jai Singh, learned Senior Counsel for the applicant has argued that learned Judge of the Trial Court has committed error in making an adverse observation against the applicant, who was witness in the case and while doing so the Trial Court has acted against the basic principles of natural justice. 5. Shri Jai Singh, learned Senior Counsel for the applicant has argued that learned Judge of the Trial Court has committed error in making an adverse observation against the applicant, who was witness in the case and while doing so the Trial Court has acted against the basic principles of natural justice. According to him, in view of the law laid down by the Supreme Court in various cases including in the case of Manish Dixit and others v. State of Rajasthan, reported in AIR 2001 SC 93 , the adverse remarks need to be expunged as the same will cause serious consequences in the future career of the applicant, as he has not been given an opportunity of hearing in the matter of proposed remarks and strictures and the same being in violation of principles of natural justice deserves to be expunged. 6. Shri Arvind Gokhle, learned Counsel for the non-applicant, on the other hand, has argued that on the basis of the order dated 16-4-2012 passed by the Trial Court in the case of one Prabhu Dayal Bhendwal, in which the alleged observations were made against the applicant, a preliminary enquiry was conducted and thereafter, an FIR was lodged on 11-5-2013. In the circumstances, according to him, though, the action has been taken on the basis of the order passed by the Trial Court but, after holding the preliminary enquiry. 7. In the case of Manish Dixit and others v. State of Rajasthan (supra), the Supreme Court after considering its various earlier pronouncements while ordering expunction of all the disparaging remarks had observed in Paragraph Nos. 43 and 44 thus:-- “43. Even those apart this Court has repeatedly cautioned that before any castigating remarks are made by the Court against any person, particular when such remarks could ensue serious consequences on the future career of the person concerned he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Such an opportunity is the basic requirement, for, otherwise the offending remarks would be in violation of the principles of natural justice. In this case, such an opportunity was not given to P.W. 30 (Devendra Kumar Sharma), [State of U.P. v. Mohd. Nairn, 1964) 2 SCR 363 : AIR 1964 SC 703 : 1964 (1) Cri.LJ 549, Ch. Such an opportunity is the basic requirement, for, otherwise the offending remarks would be in violation of the principles of natural justice. In this case, such an opportunity was not given to P.W. 30 (Devendra Kumar Sharma), [State of U.P. v. Mohd. Nairn, 1964) 2 SCR 363 : AIR 1964 SC 703 : 1964 (1) Cri.LJ 549, Ch. Jage Ram v. Hans Raj Midha, (1972) 1 SCC 181 : AIR 1972 SC 1140 : 1972 Cri.LJ 768, R.K. Lakshmanan v. A.K. Srinivasan, (1975) 2 SCC 466 : AIR 1975 SC 1741 : 1975 Cri.LJ 1545, Niranjan Patnaik v. Shashibhusan Kar, (1986) 2 SCC 569 : AIR 1986 SC 819 : 1986 Cri.LJ 911, State of Karnataka v. Registrar General, 2000 (5) SCALE 504 : 2000 AIR SCW 2794 : AIR 2000 SC 2626 ]. 44. It is apposite in this context to extract the following observations made by this Court in Dr. Dilip Kumar Deka v. State of Assam, (1996) 6 SCC 234 : 1996 AIR SCW 4046:-- We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition to defend themselves. It cannot be gainsaid that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Condemnation of the appellants without giving them an opportunity of being heard was complete negation of the fundamental principle of natural justice.” 8. Having gone through the FIR we find that the entire action against the applicant has been initiated only on the basis of the adverse observation/remarks made by the Trial Court in the case of Prabhu Dayal Bhendwal. Condemnation of the appellants without giving them an opportunity of being heard was complete negation of the fundamental principle of natural justice.” 8. Having gone through the FIR we find that the entire action against the applicant has been initiated only on the basis of the adverse observation/remarks made by the Trial Court in the case of Prabhu Dayal Bhendwal. Taking into consideration the aforesaid settled legal position as also the fact that the remarks made by the Trial Court will lead to serious consequences on the future career of the applicant and before making such remarks he has not been given an opportunity of hearing in the matter in respect of the proposed remarks which is basic requirement of the principles of natural justice and the applicant having been condemned without giving him an opportunity of being heard, in our considered view, the remarks made against the applicant by the Trial Court deserve to be and are hereby expunged. As a consequence, the preliminary enquiry conducted and the FIR lodged in pursuance to the impugned observations/adverse remarks are also quashed. 9. However, we make it clear that it will be open for the respondent or the Housing Board to proceed against the applicant afresh independently in accordance with law, if they are so advised.