A.N.M. Asraf vs The State

T.P. Mukherji, J.—This is an application u/s 561A of the Code of Criminal Procedure by a witness who feels aggrieved by certain remarks and observations passed by the learned Magistrate in the judgment, praying for expunction of those remarks. On Nurul Haque who was the cashier in the office of the Official Mutwalli of Calcutta was charged for criminal breach of trust in respect of a sum of Rs. 51,000 odd. The Petitioner who is the Official Mutwalli was examined as a witness in the case and it is the observation and findings of the learned Magistrate relating to this Official Mutwalli in course of the judgment that is the subject-matter of the present application. The accused in the case was acquitted, but the learned Magistrate is found to have made some very damaging and uncharitable remarks against the conduct of the Official Mutwalli, P.W. 11.

There is no question that in appropriate circumstances the High Court has the power to expunge from judgments of subordinate Courts observations and remarks which may be found to be unnecessary and uncalled for and are found to have damaged somebody's reputation in connection with the case. One of the recent cases in this regard is the G. Chandrasekhara Pillai Vs. K. Karthikeyan, . Their Lordships of the Supreme Court in that case set out certain tests which would justify the expunction of objectionable remarks from judgments and it was observed:

It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct come into consideration before Courts of law in cases to be decided by them, it is relevant 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 jcondiuct. It has also been recognised that judicial pronouncements must be judicial in nature and should not normally depart ftom sobriety, jWOdenation and reserve.

In the present case, the Official Mutwalli appeared as prosecution witness-No. 11. His conduct as such witness came into consideration before the Court in that case. It will be necessary now to consider whether the observations that are now objected to satisfy the above prescribed tests and whether, in the circumstances, this Court will be justified in expunging those remarks, as prayed for.

Before we proceed further, it may be mentioned that in para. 4 of the judgment appearing at p. 16 of the certified copy thereof, the learned Magistrate came to the following finding:

In view of what is said above it can be definitely concluded that there is no material on record to prove the actual amounts of misappropriation or. Even any embezzlement by anybody.

Whatever remarks and observations have been objected to by the Petitioner all appear in the judgment after this, finding of the learned Magistrate.

At p. 17 of the certified copy of the judgment, the learned Magistrate observed in connection with the finding of a sum of Rs. 601-9 as from the iron safe of the Official Mutwalli, after the embezzlement had been discovered, that the explanation given by the Official Mutwalli that the amount was received by him on December 9 and 10, 1958, after the cashier, the accused in the case, had absconded from the office was false. The only evidence regarding this money is to be found in the testimony of P.W. 11. But this evidence apparently was not accepted in view of the evidence of P.W. 7 who only stated that the office was closed from December, 9 till December 21, 1958 and that no office work was done during this period. The, evidence pf this witness does not contradict the evidence of P.W. 31 and in any event, the charge in the case was confined to a period up till December 8, 1958 and eyen if the office were closed from the 9th and the money was discovered on the 12th, as is the evidence, that money not being related in any way to the amount involved in the charge, no adverse inference against the Official Mutwali should, in my opinion, be drawn in the circumstances of the case. The finding of the learned Magistrate that the evidence of P.W. 7 falsifies the evidence of the Official Mutwalli is at best an expression of opinion based on an assessment of the evidence on the point and relates to the conduct of P.W. 11 as a witness, in the case. This, after all, is not an observation to which any person appearing a witness in a ease can reasonably take exception to and with the finding that this money has no relation to the amount involved in the charge in the case, I would leave the observation as it is.

The next, observation of the learned Magistrate appears at p. 18 of the certified copy of the judgment and is quoted in sub-para, (b) of para. 10 of the petition. The learned Magistrate found that

it becomes evident from his (P.W. 11''s) cross-examination that he was the, de facto owner of the business of Quick Service Garage at 6, Royd Street.

The evidence, of the Official Mutwalli, P.W. 11, is, the only evidence which might have formed, the basis, of the observation above. To this witness, P.W. 11, it was suggested that he was the owner of the Quick Service Garage. But that suggestion was denied and on that denied suggestion, no inference against the witness, concerned should have been drawn. In my judgment, there is absolutely no basis for this finding of the learned Magistrate and the finding is of such a nature that it should, be expunged from, the record.

The next passage in the judgment to which objection is taken appears at p. 19 of the certified copy of the judgment where the learned Magistrate refers to flagrant violations of the procedure rules and the law by the Official Mutwalli and comes to a finding that all those do not speak of an honest conduct. The learned Magistrate stated that these Tent much support to the definite case of the defence that the Official Mutwalli himself spent the money by investing the same in his personal business and as there was a loss in that business, he could not re-deposit the same and that for that loss he was shifting the responsibility on to the shoulders of the accused. In this, connection he also referred to the deposit of a sum of Rs. 23,000 by the Mutwalli into the fund of the Wakf and to his having had agreed to the forfeiture of his security deposit of Rs. 25,000 and his readiness to pay the balance of the embezzled amount as, being evidence of his guilt, in the matter of embezzlement.

In my judgment, the earlier part of the observation is based on the earlier finding of the learned Magistrate that the Quick Service Garage belongs to this witness P.W. 11, which, as I have already found, cannot be supported on the materials on record. Then, again, in the matter of the payment, the forfeiture of the deposit and the readiness to pay the balance, the learned Magistrate lost sight of the provisions of the Bengal Wakf Act itself. Sections 48 to 51 and Section 92 of that Act have relevance to his findings relating to the flagrant violations of the procedure, rules and the law by the Official Mutwalli during his tenure of office. He held the Official Mutwalli responsible for not having submitted annual accounts. But there is nothing on record to indicate that annual accounts were not submitted as required by Section 48 of the Act. The learned Magistrate found the Official Mutwalli responsible for the non-audit of the annual accounts u/s 49 of the Act. But the responsibility for audit under that section lies with the Wakf Commissioners and not with the Mutwalli. The learned Magistrate has also referred to an alleged liability of the Official Mutwalli for audit of accounts u/s 64 of the Act. But he also lost sight of the fact that audit under that section is to be by auditors to be appointed by the State Government. Regarding the forfeiture of security deposit and the payments, these were made in pursuance of an order made on directions given as the result of the audit held in the case after the embezzlement had been discovered. u/s 51 of the Bengal Wakf Act, a certificate of dues given by the auditor makes the person, from whom the money is held by the Commissioner to be due, liable to reimburse the amount without any protest. u/s 92 of the Act, there is no appeal against an order for reimbursement. If, therefore, on the finding of the auditor, the Wakf Commissioner had directed the Official Mutwalli, who was found guilty of negligence, to reimburse the Wakf Estate to the extent of the embezzled amount and if in pursuance of that direction the Official Mutwalli has made certain payments and has promised to pay some more, I do not see how his conduct can be held up as an admission of his guilt in the matter. In my view, the observations and findings of the learned Magistrate in this regard are not based on proper assessment of the evidence and the law and the Official Mutwalli has ample reason to feel aggrieved by such finding and observations which also were not necessary for a proper disposal of the case.

The next observation to which exception is being taken appears at p. 23 of the certified copy of the judgment where the learned Magistrate has summarized his impression about the conduct of the Official Mutwalli, has virtually made him responsible for criminal breach of trust and has castigated the investigating officer for not having sent him up for trial in the case. This finding is in sad contrast with the earlier finding of the learned Magistrate at para. 4 appearing at p. 16 of the certified copy of the judgment where he came to the clear conclusion that there is no material on the record to prove either the actual amount of embezzlement or even any misappropriation by anybody.

Here is a case where a person appearing as a witness in the case has been hauled on burning coals and branded as a culprit for the very offence which was being tried by the learned Magistrate. If the learned Magistrate really thought P.W. 11 to be the real culprit in the case, he had ample jurisdiction to summon him to stand his 1 trial for criminal breach of trust. In that case, he would have been given an opportunity of justifying his own conduct. Appearing as a witness, he did not have sufficient opportunity of explaining and defending himself against the opinion that the learned Magistrate is found to have formed on the evidence recorded in the case.

On a consideration of all that I have said above, I find that in view of the finding of the learned Magistrate that there was no evidence in the case even for a finding that there was any embezzlement by anybody, all the remarks that have been passed against P.W. 11 are not only unjust, but uncalled-for too. This witness did not have the opportunity to explain and defend himself against the charges which the learned Magistrate has ultimately levelled against him. There is no evidence on the record bearing on the conduct of this witness justifying the remarks of'' the learned Magistrate and as I have already said, it was not necessary for the decision of the case as an integral part thereof to animadvert on the conduct of the witness. This is a case where all the tests prescribed by the Supreme Court in the case referred to above are satisfied and I feel that I shall be justified in expunging the remarks in Sub-paras, (b), (c) and (d) of para. 10 of the petition in the case which appear at pp. 18, 19 and 23, respectively, of the certified copy of the judgment in the case.

The Rule is, accordingly, made absolute in the above terms.