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Judgment
Being aggrieved by the remarks as made by this court in the judgment and order dated 09.03.2016, delivered in WP(C) (PIL)03 of 2016, the petitioner who is a member of the Tripura Judicial Service (TJS), Grade-I has filed this review petition for expunging or modifying the said remarks which read as follows :
"11. We fail to understand why the Law Department was silent in the matter. It is the duty of the Law Department to advise the Government in all legal matters. The amendments which were brought about by the Criminal Law (Amendment) Act, 2013 are extremely important. Even the definition of rape was amended by this very amendment. This amendment was brought about after the unfortunate "Nirbhaya" incident and on the basis of the recommendations made by Justice J.S. Verma Committee. It was the duty of the Law Department to have ensured that such an important amendment is brought to the notice of the police, the Health Authorities and all other concerned. The Law Department cannot wash its hands of the matter. Whenever any act is amended which will have wide ranging effect like the 13th Criminal (Amendment) Act, it is the duty of the Law department to ensure that these amendments are brought to the notice of other departments. People like doctors serving in the Health Department will obviously not be abreast with the latest developments in law. They are not expected to read the Indian Penal Code or the Code of Criminal Procedure. Therefore, the role of the Law Department is very important to ensure that whenever any amendments of this type are brought about, they are brought to the notice of the concerned departments. We direct that hereafter this shall positively be done by the Law Department.
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We have a State Judicial Assembly and if the State desires, it can at any time approach the High Court or the Patron-in-Chief of the State Judicial Academy to impart instructions of such legal provisions to any officers of the State whether they be Doctors, Administrative Officers, Forest Officers, Revenue Officers etc. The State runs a Law Training Institute. It was the duty of the then Secretary, Law who was also the Chairman of the Law Training Institute to have ensured that these provisions are brought to the notice of all concerned and furthermore, he should have ensured that in the Law Training Institute some seminar/lecture/training programme is conducted wherein the doctors are trained with regard to these activities.
It is only because the then Member Secretary of the Tripura Legal Services Authority brought this amendment to the notice of the Director General of Police and the Health Department that some action was taken. The Legal Services Authority does not have the wherewithal to conduct trainings and this office did his duty by informing the concerned departments, i.e. the Police and the Health Department about the amendment. However, the same cannot be said about the Law Department. Therefore, a copy of this judgment shall be kept on the service file of the Judicial Officer holding the post of Secretary, Law at the relevant time. A copy of the judgment be also sent to him so that he can put forth his version on the administrative side within 6(six) weeks from today."
Mr. S.M. Chakraborty, learned senior counsel appearing for the review petitioner has at the outset submitted that having received a copy of the said judgment and order dated 09.03.2016, the review petitioner first filed a petition for expunging the remarks as above in the administrative side. Later on, having realized that it would be more apposite that he filed a petition for review of the said judgment and order. Even though the petitioner has not been named in the same judgment and order but he was the incumbent Secretary, Law Department in the relevant time. Mr. Chakraborty, learned senior counsel has further stated that those remarks were made without any opportunity to the review petitioner for his say and to be very precise the personal affidavit filed by the Secretary, Law Department [not the review petitioner] did not dwell upon how the Law Department had responded and acted to make aware the stake-holders and the public in general of the Criminal Law (Amendment) Act, 2013. As such, the remarks made in the Paras-11, 18 & 19 have surfaced from inadequacy of relevant information. If the paragraphs 18 & 19 are read conjointly, it would indicate to the failure of duty of the Secretary, Law Department. Mr. Chakraborty, learned senior counsel while referring to the position of law has referred a decision of the apex court in ''K'' A Judicial Officer versus Appellant reported in (2001) 3 SCC 54 where the apex court had occasion to observe that when disparaging and undeserving remarks made by a court of superior jurisdiction, the judicial officer concerned is not without any remedy he may approach the high court invoking its inherent jurisdiction seeking expunging of objectionable remarks which jurisdiction is vested in the high court by virtue of being the court of record and possessing inherent powers as also the power of superintendence.
The apex court in Para-10 of the said report had continued to observe as under :
"....... This view is settled by the law laid down in Dr. Raghubir Saran v. State of Bihar, (1964) 2 SCR 336 : (AIR 1964 SC 1: 1964 (1) Cri LJ 1). 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 State of Uttar Pradesh v. Mohammed Naim, (1964) 2 SCR 363 : (AIR 1964 SC 703 : 1964 (1) Cri LJ 549) 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."
Mr. Chakraborty, learned senior counsel has succinctly contended that in a plethora of decisions the apex court has restated the law that the remarks/observations and strictures are to be avoided particularly if the officers has no occasions to put forth his reasoning. Further, if the passage complained of is wholly irrelevant and unjustifiable and its retention on the records may cause harm to the person to whom it refers and its expunction will not affect the reasons for the judgment and order, request for expunging those remarks are to be allowed. In this regard, the apex court in Awani Kumar Upadhyay versus High Court of Judicature of Allahabad and Others reported in (2013) 12 SCC 392 has inter alia observed as under :
"9. It is settled legal position that no adverse remarks can be made against any judicial officer without giving an opportunity to explain the conduct. It is useful to refer a decision of this Court in Parkash Singh Teji v. Northern India Goods Transport Co. (P) Ltd. which is identical to the case on hand. In the above decision, the directions of the High Court in its order dated 06.07.2006 reads as under :
"10. ..... ''Before parting, we wish to make it clear that the learned Judge, who passed the impugned judgment and decree need be careful in future, rather than adopting a hasty, slipshod and perfunctory approach as is manifest from the judgment delivered by him in this case. We further direct that a copy of this order shall be placed on the personal/service record of the officer, while another copy be placed before the Hon''ble Inspecting Judge of the officer for His Lordship''s perusal.''"
According to the appellant, by making such remarks and that too behind his back, are not warranted. Here, again, after adverting to the earlier decisions and principles enunciated therein, this court expunged the offending remarks made against the appellant and allowed the appeal filed by him."
Mr. Chakraborty, learned senior counsel has submitted that as the Secretary, Law Department, the petitioner had taken all required steps for well circulation of the said amendment Act. In the Paras-9, 10, 11, 12 & 13, the petitioner has given an exhaustive detail of the action he had taken or initiated. According to the review petitioner, under the Rules of Executive Business, the area of activity of the Law Department is well demarcated. Within the province of the Rules of Executive Business he had discharged his obligation about a new legislation. That apart, he had arranged the awareness workshops including the workshop for the senior Medical Officers on medical issues of sexual violence. The review petitioner had personally participated in many of such workshops as the resource person. Had he be given an opportunity to explain, he would have definitely satisfied the court the stand taken by the Medical Officer was wholly improper.
Ms. P. Dhar, learned standing counsel appearing for the High Court of Tripura has pointed out to this court that even the Para-4 of the personal affidavit filed in compliance to the order dated 17.02.2016 in WP(C)(PIL) 03 of 2016 by Mr. A.K. Nath, Secretary, Law Department was, as it appears, not taken into consideration while passing those remarks. For purpose of reference Para-4 of the said affidavit, which is annexed with the review petition, is extracted :
"4. I beg to state further that from the Law Department seminar/workshops were conducted on the Criminal Law Amendment of 2013 on 26.05.2013, 23.06.2013 and 30.06.2013 involving PPs, APPs and Police Officers. Enclosed herewith copy of programme schedule of said seminar/workshops marked as Annexure-III."
Having considered the records of WP(C) (PIL) 03 of 2016 and the records produced with this petition, we are of the view that the review petitioner had no occasion to put forth his reasoning or explanation and the remarks as reproduced above were not warranted and if those remarks are expunged the judgment and order dated 09.03.2016 would not be affected in any manner. But we do not think that any interference is required so far the Para-11 is concerned. The parts of Paras 18 & 19 which are highlighted by bold letters in our view have obliquely censured the role of the Secretary, Law Department without affording any opportunity to explain. We are also satisfied having exposited by the records produced with the review petition that such censure was not called for. As corollary, the parts which are highlighted by bold letters in Paras-18 & 19 of the judgment and order dated 09.03.2016 delivered in WP(C)(PIL) 03 of 2016 shall stand expunged. The direction to place a copy of the said judgment and order dated 09.03.2016 in the service file of the review petitioner is recalled. In the result, this review petition is allowed to the extent as indicated above.
There shall be no order as to costs.
A copy of this order shall be placed in the file of WP(C)(PIL) 03 of 2016.