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Madhya Pradesh High Court · body

2016 DIGILAW 864 (MP)

Bijendra Singh Parihar v. State of M. P.

2016-09-26

S.C.SHARMA

body2016
ORDER : S.C. Sharma, J. Parties through their counsel. 2. The petitioner, who is Police Officer has filed this present petition being aggrieved by remarks made by Sessions Judge, Indore in Sessions Trial No.408/2014 passed by Seventh Additional Sessions Judge, Indore decided on 03-09-2015. 3. Learned counsel Shri Vijayvargiya has argued before this court that learned Judge while deciding the matter in paragraphs 50 to 52 has made adverse remarks against the present petitioner and remarks have been made without hearing the petitioner and at no point of time any notice was issued to the petitioner. He has straightaway placed reliance upon a judgment passed by the Hon'ble Supreme Court in the case of Manish Dixit and others v. State of Rajasthan reported in AIR 2001 SC 93 and his contention is that without hearing the petitioner such stricture could not have been passed. 4. On the other hand, it has not been disputed by learned Government Advocate that strictures has been passed without hearing the petitioner. 5. This court has carefully gone through the judgment and reveals that at no point of time any notice was issued to the applicant. 4. On the other hand, it has not been disputed by learned Government Advocate that strictures has been passed without hearing the petitioner. 5. This court has carefully gone through the judgment and reveals that at no point of time any notice was issued to the applicant. He was not heard by learned Additional Sessions Judge and in spite of that learned Additional Sessions Judge in paragraphs 50 to 52 has passed certain stricture against the present petitioner which reads as under :- ^^50- vfHkys[k ij vkbZ lk{; ls Li"V gksrk gS fd vkj{kd lanhiflag dh gR;k ds bl ekeys esa Fkkuk [ktjkuk ds vkj{kd iadt ;kno v-lk&2 rFkk Fkkuk dukfM;k ds vkj{kdx.k fotsUnzflag ifjgkj v0lk0&7 vkSj fodklflag tknkSu v0lk0&9 dk vkpj.k cgqr gh lafnX/k] ykijokgh dk ,oa drZO; ds izfr mnklhurk dk jgk gS vkj{kd iadt ;kno v0lk0&2 us ?kVuk jk=h ds rF; vkSj ifjfLFkfr;k vuqla/kudrkZ vf/kdkjh dks ugh crk;s gSA mlds U;k;ky;hu dFku pj.k&9] 10] 11 esa tks rF; vfHkys[k ij vk;s gS musl rFk dqynhi v0lk0&1 ds dFku ls ;g izekf.kr gks x;k gS fd ?kVuk jk=h dks iadt ;kno v0lk0&2 dks fofnr gks x;k Fkk fd e`rd vkj{kd lanhiflag ds lkFk dksbZ gknlk gqvk gS vkSj og e`rd ds HkkbZ ds lkFk lanhiflag dks <+wa<+rs gq, ?kVukLFky vkSj Fkkus x;k Fkk vkSj lanhiflag ugha feyk vkSj jkt dks Ms<+ cts rd Qksu yxkus ij lanhiflag ls laidZ ugha gqvk vkSj lanhiflag dh eksVj lkbZfdy mlus fousUnzflag v0lk0&7 ds ikl ns[k yh Fkh fQj nwljs fnu lanhiflag dh e`R;q gks tkus ds ckn Hkh mlus ?kVukdze vius mPp vf/kdkfj;ksa vkSj vuqla/kkdrkZ vf/kdkjh dks ugh crk;k gS blfy;s mldk vkpj.k iqfyl vkj{kd ukrs mlds drZO; ds izfr ykijokgh vkSj mnklhurk dk gksuk ik;k tkrk gSA 51- vkj{kd fotsUnzflag v0lk0&7 ,ao vkj{kd fodklflag tknkSu v0lk0&9 ds lac/ak esa muds U;k;ky;hu dFku ls gh ;g Li"V gqvk gS fd os okgu pkyd fouksn pkSgku dks ?kk;y voLFkk esa vLirky ys x;s gSa mUgksaus drZO; ds izfr mis{kk dj fouksn pkSgku dks izk;osV vLirky es ys tkdj mldk esfMdy dj izkIr ugh fd;k gSA mDr nksuska vkj{kdksa ds dFku ls Li"V gksrk gS fd os okguska dh Vddj gksus okys LFkku ij vkj{kd lanhiflag dks vdsyk NksM+dkj pys x;s Fks vkSj og Hkh rc tc os Lo;a ekSds ij >xM+s vkSj fookn dh ifjfLFkfr;ka crkrs gSA mudk ;g vkpj.k mudh drZO; ds izfr ykijokgh vkSj lg iqfyl dehZ lanhiflag ds izfr mis{kk djuk n'kkZrk gSA 52- vkj{kd fotsUnzflag v0lk0&7 ds dFku ls Li"V gqvk gS fd og ,DlhMsaV okys LFkku ls pkyd fouksn pkSgku dks vLirky ys tkus ds fy;s Fkkuk dukfM;k okgu ysus x;k gS ;fn og ltxrk ls dk;Z djrk rks mlh le; fouksn pkSgku vkSj vkj{kd lanhiflag dks Hkh vius lkFk Fkkus ys tk ldrk Fkk fdUrq mlus ,slh ltxrk ls dk;Z ugh fd;k gSA bruk gh ugh Fkkus ls okgu ysdj vkus ds ckn Hkh mlus vkj{kd lanhiflag dh dksbZ lq/k ugha yh gS fd lanhiflag dgka x;k mldk D;k gqvkA lanhiflag dh eksVj lkbZfdy dks ?kVukLFky ls ykus esa Hkh mDr nksuksa vkj{kdx.k dk d`R; mudh drZO; ds izfr mis{kk n'kkZrk gSA** 6. Hon'ble Supreme Court in the case of Manish Dixit and others (supra) in paragraphs 42 to 45 held as under :- "42. In the present case when the Public Prosecutor failed to utilize the opportunity afforded by law to ask PW-30 (Devendra Kumar Sharma) such questions as are necessary for explanation of the matters referred to in cross-examination, and when the trial judge also failed to invoke the plenary powers to put such questions as he should have put regarding the answers given in cross-examination it was unfair, and we may say uncharitable to a witness to shower him with judicial re-probations in the judgment. Such disparaging remarks and the direction to initiate departmental action against him could have very serious impact on his official career. 43. Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the court against any person, particularly 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 PW-30 (Devendra Kumar Sharma). [(State of U.P. v. Mohd. Naim { 1964 (2) SCR 363 }, Ch. Jage Ram v. Hans Raj Midha { 1972 (1) SCC 181 }, R.K. Lakshmanan v. A.K. Srinivasan { 1975(2) SCC 466 }, Niranjan Patnaik v. Sashibhusan Kar { 1986 (2) SCC 569 }, State of Karnataka v. Registrar General { 2000 (5) Scale 504 }]. 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 }: "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. 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." 45. We therefore unhesitatingly allow the appeal filed by PW-30 (Devendra Kumar Sharma) and order expunction of all the disparaging remarks made against him by the trial judge as well the High Court in the judgments impugned before us. The direction to proceed against him departmentally would also stand deleted." 7. In light of the aforesaid judgment as offending remarks are in violation of natural justice and fair play are liable to be expunged. Resultantly, remarks made against the applicant in the impugned judgment in paragraphs 50 to 52 are hereby expunged. 8. The application filed u/s 482 of the Code of Criminal Procedure, 1973 is hereby allowed. Certified copy as per rules.