Superfecial shallow desperaging remarks without foundation to be expunged !!

A Trial judge passes disparaging remarks against one of the accused. The accused is NOT given an opportunity to defend himself. Further the HC finds the reasoning to be shallow and superficial. HC orders that the remarks be expunged

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THE HIGH COURT OF MADHYA PRADESH:
JABALPUR

(Single Bench- Rajendra Mahajan, J.)

M.Cr.C. No.3675/2016

Dhirendra Kumar Nagar,
S/o Shri Thakur Das Nagar,
Aged about 48 years,
Occupation- Police Constable,
Posted at S.P. Office,
R/o Quarter No.18, Infront of Civil Lines,
Police Station Colony, Chhatarpur,
District Chhatarpur, (M.P.).
Petitioner

VERSUS

State of Madhya Pradesh,
through Police Station Civil Lines,
Chhatarpur (M.P.).

Respondent

For Petitioner         : Shri Ramesh Kumar Tamrakar, learned counsel.

For Respondent/ : Shri Y.D. Yadav, learned Panel Lawyer.

State

ORDER

(Passed on the 21st Day of June, 2016)

The petitioner has filed this petition under Section 482 of the Cr.P.C., for expunction of adverse remarks recorded in Para-70 and the directions given to the Superintendent of Police Chhatarpur in Para-83 of the impugned judgment dated 10.02.2016 delivered by the Second Additional Sessions Judge, Chhatarpur in Sessions Trail No.181/2014 titled as State of Madhya Pradesh through Police Station Civil Lines, Chhatarpur Vs. Rahul Nagar and another.

  1. The factual matrix of the case leading to filing of the petition is as follows:-

2.1 Police Station Civil Lines registered a case at Crime No.114/2014. After completion of investigation accused Rahul and Salman @ Aslam are charge-sheeted and investigation under Section 173 (8) of the Cr.P.C. is kept pending against accused Abid Mansoori. After the committal proceedings, the said sessions case is registered. The case of prosecution as unfolded in the course of investigation is that Minakshi (now dead) is a permanent resident of Panna town. She was folk singer and gave public performances upon the invitations. Accused Salman and the petitioner were the member of her troupe. At the relevant time, the petitioner was posted as Constable in the office of District Superintendent of Police, Chhatarpur and he was allotted a government quarter in the Police Lines Chhatarpur. In the night of 02.05.2014, she had to give a programme in village Parva for this purpose she left Panna in a private vehicle with her band for village Parva. On the way, she made a brief halt at the residence of the petitioner in Chhatarpur. In the early morning of 03.05.2014, she again arrived at the residence of the petitioner to get some rest. Before going for the rest, she told accused Rahul that she would do some shopping from the market of Chhatarpur, therefore, he should come back after some time to take her to the market. On the same day at about 10:00 a.m., accused Rahul took her to the market on a motorcycle. From the market, she did not return the petitioner’s residence. When she did not get to her house at Panna in the evening of 03.05.2014 as per schedule, her husband Sailendra (PW-2) inquired from the petitioner as to her whereabouts on phone. Thereafter, he came to Chhatarpur on 04.05.2014 with his relative Pragti (PW-1) and searched her with others, but in vain. On 05.05.2014, Gulshan (PW-8), who is the mother of accused Salman, went to her agricultural field with her servant, where they noticed a gaddha (a large pit) appeared to be recently filled up with soil and bricks therefrom the upper part of a human hand is sticking out. They informed the police of the said police station. Thereupon, the police registered a Marg case under Section 174 of the Cr.P.C. and recovered the dead body that was of a unknown woman. Thereafter, the police sent the dead body for postmortem. As per the postmortem report, the woman was died of a homicidal death on account of multiple antemortem injuries. Thereupon, the police registered an FIR against an unknown offender(s) for the murder of an unknown woman. Meanwhile, said Sailendra Tiwari and others reached the said Police Station for lodgement of missing report of Minakshi. There, the policemen told them about a recent recovery of a dead body of woman and got it identified by them. They identified the dead body as that of Minakshi. In the course of investigation, the police found that accused Rahul hatched a plan with accused Salman to loot her when he would take her to the market for shopping. To execute the plan, they took her to accused Salman’s agricultural land instead of the market under false pretext. There, they raped her and looted her ornaments and other belongings and thereafter murdered her. In order to conceal the evidence of the said crime, they buried her dead body in the aforesaid gaddha.
2.2 Upon the evidence collected by the police during the investigation, the learned trial Judge has framed charges against both the accused persons under Sections 302, 201, 394, 376 (1), 120-B and 34 of the IPC and 25 (1-B)-A r/w 27 of the Arms Act. They denied the charges and claimed to be tried. Thereupon, they were put to trial. In the course of trial, the petitioner is examined as prosecution witness number PW-7. http://evinayak.tumblr.com/ ; https://vinayak.wordpress.com/ ; http://fromvinayak.blogspot.com
2.3 On 10.02.2016, the learned trial Judge passed the impugned judgment whereby both the accused persons are convicted and sentenced for the offences punishable under Sections 302 r/w 120-B, 394, 201 and accused Salman is also convicted and sentenced under Section 25 (1- B)-A of the Arms Act. However, they are acquitted of the charge under Section 376 (1) of the IPC.
2.4 In Para-70 of the impugned judgment, the learned trial Judge has made the following adverse remarks against the petitioner: Para-70-  यद्यपि इस मामले में साक्षी धीरेन्द्र नागर अ0सा07 के द्वारा न्यायालय के समक्ष जो साक्ष्य दी गयी है उससे यह स्पष्टतः दर्शित हो रहा है कि इस साक्षी को प्रारम्भ से ही मृतका/अभियोक्त्री के संबंध में जानकारी रही है, क्योंकि प्रायः मृतका/अभियोक्त्री इसी के घर आकर रूकती थी और घटना के दिन भी आकर इसी के घर रूकी और यह साक्षी भी उस लोकगीत मंडली में शामिल था। जबकि घटना के दिन इसकी मृतका/अभियोक्त्री से बातचीत भी हुई। इसके पश्चात् इसका यह कथन करना कि जब मृतका/अभियोक्त्री को अभियुक्त राहुल ले गया तब इसने अपने आप को मंदिर जाना बताया है। जब संपूर्ण घटना घटित हुई और उसके पश्चात् की जो परिस्थितियॉ हैं उस संबंध में भी इसने कही भी जाने का प्रयास नहीं किया। यहॉ तक कि जब मृतका/अभियोक्त्री की लाश मिलने की खबर आयी तब यह खेत पर देखने भी नहीं गया और न ही इसके द्वारा पश्चात्वर्ती घटना के संबंध में कोई जानकारी ली गयी। इसका आरोपी से यह कहना कि राहुल तुम उसे उसके घर से ले गये थे यदि कुछ हो जायेगा तो कौन जिम्मेदार होगा। उक्त समस्त तथ्यों से यह प्रतीत हो रहा है कि साक्षी धीरेन्द्र नागर की भूमिका इस न्यायालय (ेपबा.प्रकरण) में कहीं न कहीं संदिग्ध रही है और इसे घटना के समस्त तथ्यों की जानकारी थी।
2.5 In Para-83 of the impugned judgment, the learned trial Judge has given the following directions to the Superintendent of Police Chhatarpur: इस निर्णय की एक सत्य प्रतिलिपि पुलिस अधीक्षक छतरपुर को इस निर्देश के साथ भेजी जावे कि इस प्रकरण के एक महत्वपूर्ण साक्षी धीरेन्द्र कुमार नागर, पुलिस आरक्षक थाना सिविल लाईन कॉलोनी, छतरपुर की भूमिका संदिग्ध प्रतीत हो रही है। अतः इस संबंध में धारा 173(8) दं0प्र0सं0 के अंतर्गत विधिवत जांच की जावे।
2.6 Feeling aggrieved by the aforesaid adverse remarks and the directions, the petitioner has filed the petition for their expunction and quashment respectively.

  1. The learned counsel for the petitioner has submitted that the learned trial Judge in Para-70 of the impugned judgment has given frivolous and flimsy reasons for throwing doubt on his conduct in the course of commission of the crime, whereas the learned trial Judge has relied upon the evidence of the petitioner and his wife Manju (PW-4) on the point of last seen circumstantial evidence “that accused Rahul took the deceased from their residence on the fateful day”. He took me to the deposition of the petitioner and submitted that there is nothing in his cross-examination which proves his complicity in the crime even remotely. Moreover, the defence has not challenged in his cross-examination that he is also involved in the crime. He further submitted that before recording the adverse remarks, the learned trial Judge had not given the petitioner any opportunity to satisfy her that his conduct is beyond any kind of doubt. Thus, the adverse remarks are passed by the learned trial Judge violating the principles of natural justice. He further submitted that if the contents of Para-70 of the impugned judgment are read as a whole, it is crystal clear that the learned trial Judge has not given any definite opinion about the petitioner’s doubtful role. Thus, it is just an imagination of the learned trial Judge that the petitioner’s role is doubtful. He further submitted that while giving the directions to the Superintendent of Police Chhatarpur to do further investigation under the provisions of Section 173 (8) Cr.P.C. in respect of the petitioner, the learned trial Judge has not clearly stated in the impugned judgment the points upon which the further investigation is required. Thus, the directions given by the learned trial Judge is also vague. He lastly submitted that the petitioner is an employee of the State Government of M.P. If the petitioner does not challenge the adverse remarks and the directions, the same will remain forever on record which may adversely impact on his career in service that has so far been unblemished. Upon these submissions, the learned counsel prayed for expunction and quashment of the adverse remarks and the directions respectively.
  2. Per contra, the learned Panel Lawyer has justified the adverse remarks as well as the directions.

  3. I have anxiously considered the rival submissions, perused the impugned judgment and other material on record.

  4. The Supreme Court in the case of State of Uttar Pradesh Vs. Mohammad Naiem (AIR 1964 SC 703) has clearly held that:-

“It has been judicially recognized that in the matter of making disparaging remarks against persons or authorities whose conduct comes 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 conduct. It has also been recognized that judicial pronouncements must be judicial in nature and should not normally depart from sobriety, moderation and reserve.”

The same view was reiterated in the cases of Niranjan Patnaik Vs. Sashibhusan Kar (AIR 1986 SC 819) and S.K. Viswambaran Vs. E. Koyakunju (AIR 1987 SC 1436).

7. Admittedly, the learned trial Judge has not granted an opportunity of hearing to the petitioner before recording the adverse remarks and the directions. Hence, in view of the ratio laid down in the aforesaid decision, the adverse remarks and the directions are liable to be expunged and quashed.

  1. In order to consider the case on factual aspect, I have gone through the material on record and deposition of the petitioner. I have found that the reasons given by the learned trial Judge for doubtful role of the petitioner in the case are very superficial, shallow, vague and without foundation. Even a reasonable man would not say on the basis of the reasons given by the learned trial Judge that the role of the petitioner in the case is doubtful warranting the recording of adverse remarks against him and further investigation in respect of him under Section 173 (8) Cr.P.C.
  • In view of the discussion supra, I have come to the final conclusion that the adverse remarks and the directions have been given without any substance therefore, they are uncalled for and unwarranted.

  • Consequently, the petition succeeds and is allowed, the adverse remarks and the directions given in Para-70 and 83 respectively are hereby expunged and quashed.

  • Accordingly, this M.Cr.C. stands finally disposed of.

  • (RAJENDRA MAHAJAN) JUDGE sp/-

    *****************************disclaimer**********************************
    This judgment and other similar judgments posted on this blog was / were collected from Judis nic in website and / or other websites of Govt. of India or other internet web sites like worldlii or indiankanoon or High court websites. Some notes are made by Vinayak. Should you find the dictum in this judgment or the judgment itself repealed or amended or would like to make improvements or comments, please post a comment on the comment section of the blog and if you are reading this on tumblr please post responses as comments at vinayak.wordpress.com . Vinayak is NOT a lawyer and nothing in this blog and/or site and/or file should be considered as legal advise.


    CASE FROM JUDIS / INDIAN KANOON WEB SITE with necessary Emphasis, Re formatting
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