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2017 DIGILAW 1869 (JHR)

Akhilesh Kumar Jha v. State of Jharkhand

2017-11-06

RONGON MUKHOPADHYAY

body2017
ORDER : Rongon Mukhopadhyay, J. 1. Heard the parties. 2. This application has been preferred by the petitioner for expunging the adverse remarks made against the petitioner in order dated 26.04.2016, passed in W.P.(Cr) No. 714 of 2015. 3. Since the Court, which has passed the order dated 26.4.2016, has already been transferred, matter has been placed before this Court to consider the plea of the petitioner. 4. Brief facts of the case is that one Dr. Pranita had filed a writ application bearing W.P.(Cr) No. 714 of 2015 for a direction for investigation into the offence by an independent agency. The investigation was already completed and on 31.7.2015, final form was submitted before the learned court below by the Investigating Officer. 5. In the writ application, on 29.2.2016, learned Standing Counsel (L&C) was directed to file a counter affidavit but since no counter affidavit was filed, the matter was once again listed on 28.3.2016 and it was adjourned to 4.4.2016. As even on 4.4.2016, no counter affidavit was filed, the petitioner, who was the then Superintendent of Police, Hazaribagh, was directed to be physically present on the next date of hearing i.e. on 11.4.2016. The petitioner was also directed to file a show cause as to why a counter affidavit has not been filed in spite of the direction of this Court. Pursuant to the aforesaid order, petitioner made himself physically present on 11.4.2016, on which date, he was directed to file a supplementary show cause and the case was ordered to be listed on 26.4.2016. Personal appearance of the petitioner was not dispensed with and he was once again directed to remain physically present on 26.4.2016. The writ application was disposed of on 26.4.2016 and the Director General of Police was directed to enter the omissions of the petitioner in the "Annual Confidential Report" so that the same may be looked into in future as and when required. The petitioner, therefore, has prayed for expunging the remarks made in the order dated 26.4.2016 as the petitioner apprehends that such nothings in his "Annual Confidential Report" shall adversely affect his future prospect. 6. Mr. Rajiv Ranjan, learned senior counsel for the petitioner, has submitted that the petitioner had given sufficient explanation and had taken immediate steps for compliance of the order of this Court. 6. Mr. Rajiv Ranjan, learned senior counsel for the petitioner, has submitted that the petitioner had given sufficient explanation and had taken immediate steps for compliance of the order of this Court. It has been submitted that on 30.01.2016, the petitioner had received a letter dated 16.01.2016 issued by the learned Standing Counsel (L&C). Learned senior counsel submits that pursuant to the said letter, officer incharge was directed to obtain a copy of the writ application and file a counter affidavit immediately. He further submits that officer in charge did not inform the learned Standing Counsel (L&C) about completion of the investigation. It has also been submitted that there was a delay in filing the counter affidavit due to an investigation in a case of burglary by the officer in charge of Dy. S.P. which led them to Rajmahal. Learned senior counsel has referred to an order passed by this Court in the case of Bhimshen Tuti v. State of Jharkhand in Cr. M.P. No. 1434 of 2016. 7. The petitioner at the relevant time was the Superintendent of Police, Hazaribagh, who had in his affidavit had given the details for his not being able to comply with the order of this Court. He had stated that he was given the additional charge of Koderma District and he was also busy in law and order problem, which arose in the district of Hazaribagh. 8. In the case of Babu Ram Gupta v. Sudhir Bhasin and Another, reported in (1980) 3 SCC 47 , while hearing an appeal by the contemnor, it was held as follows:- "Even if an undertaking is given to the Court, it should be carefully construed to find out the extent and nature of the undertaking actually given by the person concerned. It is not open to the Court to assume an implied undertaking when there is none on the record. While it is the duty of the Court to punish a person who tries to obstruct the course of justice or brings into disrepute the institution of the judiciary, this power has to be exercised not casually or lightly but with great care and circumspection and only in such cases where it is necessary to punish the contemner in order to uphold the majesty of law and the dignity of the courts" 9. The aforesaid judgement was followed by this Court in Cr. The aforesaid judgement was followed by this Court in Cr. M.P. No. 1434 of 2016 while expunging the adverse remarks made against the petitioner of the said case. 10. In the case of Awani Kumar Upadhyay v. High Court of Judicature of Allahabad, reported in (2013) 12 SCC 392 while considering the disparaging remarks, observations and strictures made against the lower judiciary, it was held as follows:- "11. It is made clear that we are not undermining the ultimate decision of the High Court on merits. However, we are constrained to observe that the higher courts every day come across orders of the lower courts which are not justified either in law or in fact and modify them or set them aside. Our legal system acknowledges the fallibility of the Judges, hence it provides appeals and revisions. Inasmuch as the lower judicial officers mostly work under a charged atmosphere and are constantly under psychological pressure and they do not have the facilities which are available in the higher courts, we are of the view that the remarks/observations and strictures are to be avoided particularly if the officer has no occasion to put forth his reasonings. Further, if the passage complained of is wholly irrelevant and unjustifiable and its retention on the records will cause serious harm to the persons to whom it refers and its expunction will not affect the reasons for the judgment or order, request for expunging those remarks are to be allowed. We, once again, reiterate that harsh or disparaging remarks are not to be made against judicial officers and authorities whose conduct comes into consideration before the courts of law unless it is really for the decision of the case as an integral part thereof". 11. The petitioner in his show cause filed on 8.4.2016 had tendered unconditional apology for non compliance of the order of this Court on account of maintenance of law and order as also meeting exigency in the district. The justification given by the petitioner in not filing the counter affidavit within time seems to be reasonable. The petitioner had not given any undertaking before this Court and whatever has been explained by the petitioner in his show cause as well as supplementary counter affidavit in W.P.(Cr) No. 714 of 2015 as well as in the explanation submitted in the present application seems to be a justifiable one. The petitioner had not given any undertaking before this Court and whatever has been explained by the petitioner in his show cause as well as supplementary counter affidavit in W.P.(Cr) No. 714 of 2015 as well as in the explanation submitted in the present application seems to be a justifiable one. The adverse remarks, which have been passed against the petitioner, seems to be harsh and excessive, more so in view of the fact that the investigation into the offence, for which the writ application was earlier filed, was already completed by the Investigating Officer leading to submission of charge sheet. There appears to be no exceptional circumstance, which would burden the petitioner in carrying the adverse remarks to hamper his future prospect. The petitioner as it seems had taken appropriate and necessary steps immediately on receipt of the letter from the learned Standing Counsel (L&C) and had directed the officer in charge to file a counter affidavit. The petitioner has also submitted unconditional apology for the inconvenience caused to this Court which finds recorded in the order dated 26.4.2016. The circumstances, enumerated above, therefore, compels this Court to accede to the prayer made by the petitioner. 12. Accordingly, this writ petition is allowed and the adverse remarks made against the petitioner in the order dated 26.04.2016, passed in W.P.(Cr) No. 714 of 2015 is hereby expunged. 13. If pursuant to the order dated 26.04.2016, any adverse entry has been made in the "Annual Confidential Report" of the petitioner, same shall be deleted and shall not affect the service career of the petitioner at the time of consideration of his promotion if he is otherwise fit. 14. This writ petition stands allowed accordingly.