G.S. Meena vs State and Others

Hon''ble Ms. Justice Mukta Gupta

The facts leading the Petitioner to filing the present petition are that the Petitioner a Special Executive Magistrate had passed an order dated 31st January, 2010 in proceedings u/s 107/151 Cr.P.C. instituted on DD No. 44A dated 30th January, 2010 registered at P.S. Shakarpur. Vide order dated 31st January, 2010 on a Kalandra being presented revealing apprehension of breach of peace, after recording the statement of the Investigating Officer and in view of the fact that the Respondents therein could not produce any surety, they were sent to judicial custody till 2nd February, 2010. While deciding the revision petition the Learned Additional Sessions Judge not only set aside the impugned order, however made the following observations: "In my opinion the Learned SEM acted in flagrant violation of all laws and norms. The prejudice and biasness is apparent from the records which should not have been there while discharging the judicial function and this conduct has to be depreciated". Thus the Petitioner has filed the present petition seeking expunging the remarks passed by the Learned Additional Sessions Judge.

Initially, the revisionist before the Learned Additional Sessions Judge were made parties, however since the learned counsel for the Petitioner confined his prayer to the expunging of remarks only, they were deleted from the array of parties and thus this Court is not going into the legality of the impugned order passed by the Learned Additional Sessions Judge.

Learned counsel for the Petitioner contends that he recorded the statement of the Investigating Officer and perused the evidence on record. He acted in accordance with law and thus observations of the Learned Additional Sessions Judge were unwarranted. Reliance is placed on In re In the Matter of: K, a Judicial Officer, and Parkash Singh Teji Vs. Northern India Goods Transport Co. Pvt. Ltd. and Another,

I have heard learned counsel for the parties. In re ''K'' a Judicial Officer (supra) the Hon''ble Supreme Court held.

A subordinate judge faced with disparaging and undeserving remarks made by a Court of superior jurisdiction is not without any remedy. He may approach the High Court invoking its inherent jurisdiction seeking expunction of objectionable remarks which jurisdiction vests in the High Court by virtue of its being a court of record and possessing inherent powers as also the power of superintendence. This view is settled by the law laid down in Dr. Raghubir Saran Vs. State of Bihar and Ann 1964 (2) SCR 330 . However, if a similar relief is sought for against remarks or observations contained in judgment or order of High Court the aggrieved judicial officer can, in exceptional cases, approach this Court also invoking its jurisdiction under Article 136 and/or 142 of the Constitution. With the law laid down by this Court in Dr. Raghubir Saran (supra) and the The State of Uttar Pradesh Vs. Mohammad Naim, it is well-settled that the power to expunge remarks exists for redressing a kind of grievance for which the law does not provide any other remedy in express terms though it is an extraordinary power. Any passage from an order or judgment may be expunged or directed to be expunged subject to satisfying the following tests:- (i) that the passage complained of is wholly irrelevant and unjustifiable; (ii) that its retention on the records will cause serious harm to the persons to whom it refers; (iii) that its expunction will not affect the reasons for the judgment or order.

Though the power to make remarks or observations is there but on being questioned, the exercise of power must withstand judicial scrutiny on the touchstone of following tests :-(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 conduct. The overall test is that the criticism or observation must be judicial in nature and should not formally depart from sobriety, moderation and reserve [See Mohammad Nairn (supra)].

This decision was followed in Parkash Singh Teji (supra). Further, the Hon''ble Supreme Court in Rajender Singh Pathania and Others Vs. State of N.C.T. of Delhi and Others, while set asiding the order of this Court in W.P. (Crl) No. 264/2007 dealing with the quashing of proceedings u/s 107/151 Cr.P.C. directing registration of FIR against the Police Officer and awarding of compensation held as under:

In the writ petition, admittedly, altogether there were seven Respondents, including the present Appellants and the Magistrate who had passed the order under Sections 107/151 Code of Criminal Procedure Record of the case reveals that the matter was listed for the first time on 26.2.2007 and the learned standing counsel for the State accepted notice on behalf of all the seven Respondents therein. Most of the Respondents before the writ court had been impleaded by name in personal capacity making allegations of exceeding their powers and abusing their positions. There is nothing on record to show that the standing counsel had any communication with persons against whom allegations of mala fide had been alleged, particularly, Appellant Nos. 2 to 4 and the learned Magistrate, Respondent No. 5 herein. Thus, none of them had an opportunity of appearing before the High Court We do not find any force in the submission made by learned Counsel appearing for the original writ Petitioners that as the State had been representing all of them, there was no need to hear each and every individual. Undoubtedly, the judgment and order impugned in these appeals has been passed in flagrant violation of the principles of natural justice and, thus, liable to be set aside solely on this ground.

The status report had been submitted before the High Court after having proper investigation, stating that the writ Petitioners had been under the influence of alcohol and been abusing, threatening and quarrelling each other at the public place. The police personnel could not control them. When they were taken to the hospital for medical check up they were found intoxicated, and they misbehaved with the doctor and staff of the hospital also. It had been brought to the notice of the High Court that Sanjeev Kumar -Respondent No. 3, had been threatening the police officials that his cousin Shri Aushutosh Kumar was a Metropolitan Magistrate in Tis Hazari Courts, Delhi and he would teach them a lesson for ever. It was further pointed out that Shri Aushutosh Kumar, MM, Tis Hazari Courts, Delhi from his mobile No. 9868932336 had a talk with Appellant No. 1-Rajender Singh Pathania, SHO, PS Samaipur Badli, at 10.00 P.M. on his mobile No. 9810030663 for more than three minutes on 3.2.2007. The Magistrate had passed the release order of the said Respondents, however, they could not be released because they failed to furnish the personal bond with a surety in the like amount. The High Court while passing the order did not consider it proper to have an investigation on the material facts regarding demand of bribe to the tune of Rs. 500 from the writ Petitioners or regarding the mis-behaviour of the said Respondents with the doctor and staff of the hospital. The medical report reveals that they were intoxicated. The relevant part of the medical report dated 3.2.2007 made at 8.00 p.m. in Babu Jagjivan Ram Memorial Hospital, Jahangir-puri, Delhi reads as under: Smell of alcohol + + Patient had been irritating and misbehaving with the doctor and staff.

No further investigation or inquiry bad been conducted on the charge of abusing, threatening and quarrelling by the writ Petitioners with each other. Though the High Court reached the conclusion that the said Respondents had been kept behind the bar for one day resulting into violation of their fundamental rights, without realising that since they failed to furnish bonds, no other option was available and they were sent to judicial custody in view of the order of the Magistrate. If the writ Petitioners were aggrieved of the same, they could have challenged the same by filing appeal/revision. We failed to understand under what circumstances the writ petition has been entertained for examining the issue of illegal detention, particularly, in a case where there was a justification for keeping them in judicial custody.

The object of the Sections 107/151 Code of Criminal Procedure are of preventive justice and not punitive. Section 151 should only be invoked when there is imminent danger to peace or likelihood of breach of peace u/s 107 Code of Criminal Procedure. An arrest u/s 151 can be supported when the person to be arrested designs to commit a cognizable offence. If a proceeding under Sections 107/151 appears to be absolutely necessary to deal with the threatened apprehension of breach of peace, it is incumbent upon the authority concerned to take prompt action. The jurisdiction vested in a Magistrate to act u/s 107 is to be exercised in emergent situation.

A mere perusal of Section 151 of the Code of Criminal Procedure makes it clear that the conditions under which a police officer may arrest a person without an order from a Magistrate and without a warrant have been laid down in Section 151. He can do so only if he has come to know of a design of the person concerned to commit any cognizable offence. A further condition for the exercise of such power, which must also be fulfilled, is that the arrest should be made only if it appears to the police officer concerned that the commission of the offence cannot be otherwise prevented. The Section, therefore, expressly lays down the requirements for exercise of the power to arrest without an order from a Magistrate and without warrant. If these conditions are not fulfilled and, a person is arrested u/s 151 Code of Criminal Procedure, the arresting authority may be exposed to proceedings under the law for violating the fundamental rights inherent in Articles 21 and 22 of Constitution. (Vide : Ahmed Noormohmed Bhatti Vs. State of Gujarat and Others, (Sec also : Joginder Kumar Vs. State of U.P. and others, D.K. Basu Vs. State of West Bengal,

This Court has reproduced the decisions of the Hon''ble Supreme Court for the reason that it has been repeatedly held that without notice to the officers who had no opportunities to defend themselves, no observation regarding prejudice, bias in exercise of judicial functions and conduct should be made,

In the present case as well, the Petitioner was not before the Learned Additional Sessions Judge when the matter was heard. No notice was issued to him. In the absence of any explanation being sought from the Petitioner, the Learned Additional Sessions Judge exceeded in his jurisdiction in passing the remarks. Thus, the remarks against the Petitioner in the impugned order are expunged. Petition and application stands disposed of.