Subba Rao, J.
1. I have perused the judgment prepared by my learned brother Mudholkar J. Iagree that the appeal should be dismissed. But I would prefer to give my ownreasons for doing so.
2. The facts giving rise to this appeal are simple. The appellant is amedical practitioner and during the year 1959 he was acting as DeputySuperintendent. Jahanabad Sub-Divisional Hospital and Superintendent, Sub Jail,Jahanabad. A criminal case was pending before the Court of theMunsif-Magistrate, First Class, Jahanabad, and the two accused therein filed apetition in that Court for releasing them on bail. On October 3, 1959, thelearned Munsif-Magistrate called for a report from the said medical officer ofhis opinion on the health of the said accused. The said officer examined theaccused and sent the following report to the Munsif-Magistrate :
'Examined accused Ramsewak Dusadh and Ramdeo Dusadhof village Havellipur, P. S. Ghosi, district Gaya and found that both of themare suffering from Hookworm infections and are anaemic.'
3. On October 19, 1959 the learned Munsif-Magistrate made the followingorder granting bail to the said accused :
'In view of the order dated 3-10-1959 a petitionsigned by Superintendent, Sub-Jail, Jahanabad, is received. In this petition itis mentioned that the accused persons are suffering from Hookworm infection andhence they are anaemic. From the petition it appears that its body portion hasbeen written by somebody else and it is simply signed by Mr. R. Saran,Superintendent. It is curious to note that no actual examination report hasbeen attached with this petition. It is an extreme case of carelessness on thepart of the Doctor concerned. He ought to have realised that a judicial orderwould be passed on his actual report and not on his petition. Hence let thecopy of this petition and order sheet he forwarded to the Civil Surgeon, Gaya,for information. It is argued by the lawyer appearing on behalf of the accusedthat these accused persons are poor and would not be in a position to defendthemselves, in case they would not be allowed bail. I therefore on consideringtheir poor circumstances and ill health allow them to remain on bail on Rs.500/- with one surety for the like amount.'
4. After making some infructuous attempts through administrative channels toget the said remarks against him expunged, the said medical officer filed arevision petition under Sections 435 and 439 of the Code of Criminal Procedureagainst the said order in the High Court of Judicature at Patna. The High Courtdismissed the revision petition. Hence the appeal.
5. Learned counsel for the appellant contendend that the remarks made by thelearned Munsif-Magistrate were unjustified and groundless and that they wouldaffect the appellant's future official career and, therefore, the High Courtshould have expunged the said remarks. Learned counsel for the respondents,apart from justifying the remarks, contended that the High Court had nojurisdiction to expunge the remarks from the judgment which had become final.
6. At the outset I would like to make it clear that I am not expressing myopinion on the question whether the High Court in an appeal or a revision filedtherein by an aggrieved party can expunge the remarks made by the trial Courtin its judgment in disposing of the said appeal or revision. I am onlyaddressing myself to the limited question whether in a case where the judgmenthas become final, that is to say, when no appeal has been preferred against thejudgment by an aggrieved party, the High Court can expunge any remarks foundtherein at the instance of a third party. I am also confining the scope of myjudgment to the power of an appellate Court to expunge remarks in a criminalcase.
7. The only power on which reliance is placed by learned counsel for theappellant is that contained in s. 561A of the Code of Criminal Procedure, whichreads :
'Nothing in this Code shall be deemed to limit oraffect the inherent power of the High Court to make such orders as may benecessary to give effect to any order under this Code, or to prevent abuse ofthe process of any Court or otherwise to secure the ends of justice.'
8. The Judicial Committee in two decisions, viz., Emperor v. Nazir Ahmad, 22.], and Jairam Das v. Emperor .(P.C.)], had taken the view that the said section gives no new powers but onlyprovides that those which the Court already inherently possesses shall be : (1945)47BOMLR634 preserved.
9. What is the scope of this inherent power Can it be invoked in a casewhere the judgment has become final to expunge the remarks made therein Byexpunging remarks what does the appellate Court do Substantially it strikesout a part of the judgment. Sometimes the part struck out may be an integralpart of the judgment, that is to say, the conclusion may not flow in theabsence of the part deleted. On some occasions remarks made by a Court on thecredibility of a witness, however exaggerated they may be, may be the solereason for not believing that witness. There may also be other occasions whenthe remarks may be so irrelevant that they may not have any direct impact onthe judgment, but such instances will be very rare. Whatever may be the decreeof impact, the result of expunging remarks from a judgment is that it derogatesfrom its finality. There is no provision in the Code of Criminal Procedurewhich enables an appellate Court in a case where the order of a lower Court hasbecome final between the State and the accused to modify the said order bydeleting or striking out some of the observations found therein. Does s. 561Aof the said Code confer such a power The conflicting views on this questionare reflected in some of the judgments cited at the Bar. Sulaiman J. inPanchanan Banerji v. Upendra Nath Bhattacharji I.L.R. (1926) All. 254, holds that s. 561A of the Code of Criminal Procedure, which was added in1923, confers such a power and he does not see any reason why such an inherentpower should not comprise a power to order a deletion of passages which areeither irrelevant or inadmissible and which adversely affect the character ofpersons before the Court. Tek Chand J. In the matter of Daly I.L.R.(1927) Lah. 269, also concedes such a power to an appellate Court. BeaumontC.J. in Rogers, P. J. v. Shriniwas Gopal I.L.R. 1940 Bom. 415, remarkstersely that no Court can claim inherent power to alter the judgment of anotherCourt. Dhavle J. in Bhutnath Khawas v. Dasrathi Das : AIR1941Pat544 ,agrees with Beaumont C.J. in holding that no Court can claim inherent power toalter the judgment of another Court. The Madras High Court in In re PublicProsecutor A.I.R. 1944 Mad. 614, holds that an appellate Court has power toexpunge remarks in a judgment in a suitable case. The Full Bench of the BombayHigh Court in State v. : AIR1954Bom65 ,posed the question thus : 'The important question that arises is whether asuperior Court has inherent power to alter the record, as it were, by changingor altering a judgment which has already been delivered and has become final asfar as that particular Court is concerned', and expressed its view as follows:
'A judgment of a lower Court may be wrong; it mayeven be perverse. The proper way to attack that judgment is by bringing itunder the scrutiny of the superior Court and getting the judgment of the lowerCourt judiciary corrected....................... In our opinion, the inherentpower that the High Court possesses is, in proper cases, even though no appealor revision may be preferred to this Court, to judicially correct theobservations of the lower Court by pointing out that the observations made by theMagistrate were not justified or were without any foundation or were whollywrong or improper.'
10. With respect, I agree with the conclusion arrived at by the Bombay HighCourt. This judgment, if I may say so with respect, reconciles the doctrine offinality of a judgment and the necessity to give relief in an appropriate caseto a person who is not a party to a proceeding, if uncharitable, unmerited andirrelevant remarks are made against him without any foundation whatsoever. Theother decisions taking the contrary view infringe the fundamental principle ofjurisprudence that a judgment made by a Court, however inferior it may be inthe hierarchy, is final and it can only be modified in the manner prescribed bythe law governing such procedure. All the learned Judges construing the scopeof s. 561A of the Code of Criminal Procedure have agreed on one question,namely, to preserve the independence of judicial officers so that they mayexpress their views without fear or favour. The observations made by some ofthe Judges are apposite in this context. Tek Chand J. observed in In the matterof Daly I.L.R. (1927) Lah. 269 :
'It is of the utmost importance to theadministration of justice that Courts should be allowed to perform theirfunctions freely and fearlessly and without undue interference by thisCourt.'
11. Chagla C.J. in State v. Nilkanth Shripad I.L.R. 1954 Bom. 148, 157, observed :
'It is very necessary, in order to maintain theindependence of the judiciary, that every Magistrate, however junior, shouldfeel that he can fearlessly give expression to his own opinion in the judgmentwhich he delivers. If our Magistrates feel that they cannot frankly andfearlessly deal with matters that come before them and that the High Court islikely to interfere with their opinions, the independence of the judiciarymight be seriously undermined.'
12. I entirely agree with the remarks. I reiterate that every judicialofficer must be free to express his mind in the matter of the appreciation ofevidence before him. The phraseology used by a particular Judge depends uponhis inherent reaction to falsehood, his comparative command of the English languageand his felicity of expression. There is nothing more deleterious to thedischarge of judicial functions than to create in the mind of a Judge that heshould conform to a particular pattern which may, or may not be, to the likingof the appellate Court. Sometimes he may overstep the mark. When publicinterests conflict, the lesser should yield to the larger one. An unmerited andundeserved insult to a witness may have to be tolerated in the generalinterests of preserving the independence of the judiciary. Even so, a duty iscast upon the judicial officer not to deflect himself from the even course ofjustice by making disparaging and undeserving remarks on persons that appearbefore him as witnesses or otherwise. Moderation in expression lends dignity tohis office and imparts greater respect for judiciary. But occasions do arisewhen a particular Judge, without any justification, may cast aspersions on awitness or any other person not before him affecting the character of suchwitness or person. Such remarks may affect the reputation or even the career ofsuch person. In my experience I find such cases are very rare. But if ithappens, I agree with the Full Bench of the Bombay High Court that theappellate Court in a suitable case may judicially correct the observations ofthe lower Court by pointing out that the observations made by that Court werenot justified or were without any foundation were wholly wrong or improper.This can be done under its inherent power preserved under s. 561-A of the Code ofCriminal Procedure. But that power must be exercised only in exceptional caseswhere the interest of the Party concerned would irrevocably suffer.
13. From the aforesaid discussion the following principles emerge : (1) Ajudgment of a criminal Court is final; it can be set aside or modified only inthe manner prescribed by law. (2) Every Judge, whatever may be his rank in thehierarchy, must have an unrestricted right to express his views in any matterbefore him without fear or favour. (3) There is a correlative and self-imposedduty in a Judge not to make irrelevant remarks or observations without anyfoundation, especially in the case of witnesses or parties not before him,affecting their character or reputation. (4) An appellate Court has jurisdictionto judicially correct such remarks, but it will do so only in exceptional caseswhere such remarks would cause irrevocable harm to a witness or a party notbefore it.
14. Let me now apply the said principles to the instant case. Here, a bailapplication was pending before the Magistrate on the ground that the accusedwere ill. The Magistrate asked the medical officer to report on their health.The said officer sent a report stating that he had examined the accused andthat they were suffering from hookworm infection and were anaemic. In thestatement of the case the appellant says that he made a clinical examinationand also the examination of the stools of the accused; but he did not sendalong with his report the result of his clinical examination showing theparticulars of the blood and stool tests. The learned Munsif-Magistrate pointedout that no actual examination report was attached to the petition (report) andthat it was an extreme case of carelessness on the part of the doctorconcerned. The Magistrate felt that as a judicial officer he could not acceptthe mere ipsi dixit of the doctor unsupported by the results of clinicalexamination to come to a conclusion one way or other whether the accused werereally so ill as to be let on bail. In the circumstances, if the Magistratecharacterised the act of the medical officer in not sending the detailed reportas an act of extreme carelessness, can it be said that his inference was suchthat the appellate Court should treat it as an exceptional case and judiciallycorrect the said observations Indeed, the High Court in its judgment said :
'The observation of the learned Munsif-Magistratedoes not seem to be wholly unjustified. The doctor should have given thereasons for calling the accused person on whose behalf bail petitions weremoved as anaemic.'
15. It rightly concluded thus :
'In the circumstances, if the Court said that thedoctor was careless, I do not think that there is any impropriety in such anobservation. It is likely that some other Court may take a different view ofthe thing, but that is no ground for upsetting the observations of a Court. Toaccept this contention would amount to placing unnecessary fetters on thediscretion of the Court in assessing any witness or any evidence in course ofits judgment or order.'
16. With these observations, it dismissed the petition.
17. Now, the question is whether in such circumstances this Court inexercise of its powers under Art. 136 of the Constitution should interfere withthe order of the High Court. Is it such an exceptional case which calls for theinterference of this Court The High Court in exercise of its discretion, forthe reasons given by it, refused to expunge the remarks. It is certainly not acase meriting the interference of this Court in its extraordinary jurisdiction.
18. That apart, I entirely agree with the observations of the High Court. Ajudicial officer does not surrender his judgment in medical matters to the ipsidixit of the doctor. The opinion of a doctor has great weight, provided it issupported by the material on which he formed the opinion. If he does notdisclose the particulars of the clinical results, how can the Court come to aconclusion that the accused were so ill as to be released on bail In thecircumstances, the Magistrate said that the doctor was grossly negligent. It isnot possible to say that the said observation is either irrelevant or withoutfoundation.
19. In the result, the appeal fails and is dismissed.
Mudholkar, J.
20. In this appeal by special leave from a judgment of the High Court ofPatna the question raised is as to the powers of the High Court under s. 561-Aof the Code of Criminal Procedure in regard to expunging remarks made in itsjudgment or order by a court against a person who is neither a party not awitness to the proceeding.
21. The question arises this way. A bail application was moved in the courtof Mr. B. Rai, Munsif Magistrate, Jahanabad on behalf of two persons who wereaccused in a criminal case pending in that court on the ground that they werelying seriously ill in jail. On October 3, 1959 the Magistrate passed an ordercalling upon the Civil Assistant Surgeon at that place, who, we are told, isalso Superintendent of the Sub-Jail to report whether the accused persons areill. On October 7, 1959. Mr. Sharan the Civil Assistant Surgeon, signing as theSuperintendent of the Sub-jail submitted the following report :
'Ref : Copy of order sheetdated 3-10-1959 in G.R. 367/59 Ghosi P. S. case 3(8)/59.
Sir,
Examined accused Ramsewak Dusadhand Ramdeo Dusadh both sons of Dillan Dusadh of village Havellipur P. S. Ghosi,district Gaya and found that both of them are suffering from hookworminfections and are anaemic.
Yoursfaithfully,
Sd/- x x x '
The report was addressed to the Magistrate. On October 19, 1959 he passedhis order releasing the accused persons on bail, in the course of which he madecertain observations which are sought to be expunged. For some obscure reasonthe learned magistrate has regarded what is plainly a report to be a 'petition'and then blamed Dr. Sharan for not realising that a judicial order could bepassed only on his report and not 'his petition'. That is not all. Hehas found fault with Dr. Sharan because (a) the report appeared to be in thehandwriting of some person other than himself and was only signed by him and(b) 'no actual examination report was attached with this petition(sic)'. For these reasons he observed in his order : 'It is anextreme case of carelessness on the part of the Doctor concerned' andordered that a copy of the 'petition' and the order sheet be sent to the CivilSurgeon, Gaya for information.
22. The report of Dr. Sharan is couched in the usual form but if theMagistrate felt any doubt about the matter he could well have sought to have itcleared by writing to him for particulars. No doubt, this might have entailedpostponment of the case and thus delayed passing an order. But it would seemthat the Magistrate did not really think that the report was inadequate. For,acting upon it, he in fact released the accused persons on bail on the veryday, that is October 19.
23. All this is, however, very trivial and is not a kind of matter whichought ever to have been brought up before this Court. No doubt the learned Magistratehas said that the doctor was careless and by forwarding a copy of the orderstraight to his departmental superior indicated that he expected action to betaken on the basis of his remarks. But in view of the fact that the learnedMagistrate had in fact acted upon the doctor's report and had wronglycharacterised it as a petition his remarks could not reasonably have beenregarded by the doctor's superiors as being very serious. No harm, much lessany irreparable harm, could therefore be expected to result from these remarks.
24. Upon this view we would not have said anything further. But, Mr. D. P.Singh, appearing for the State of Bihar has raised an objection to thejurisdiction of the High Court under s. 561-A of the Code and since it raises aquestion of general importance, it is necessary to deal with it. That sectionreads thus :
'Nothing in this Code shall be deemed to limit oraffect the inherent power of the High Court to make such orders as may benecessary to give effect to any order under this Code, or to prevent abuse ofthe process of any Court or otherwise to secure the ends of justice.'
25. This provision was introduced in the Code when it was extensivelyamended in the year 1923. But it does not confer and was not intended to conferany new powers on the High Courts. The courts exist not only for securingobedience to the law of the land but also for securing the ends of justice inits widest sense. All courts, including the High Courts, can exercise suchpowers as the laws of the land confer upon them as well as such inherent powersto do justice as are preserved expressly or are not taken away by a statute. Weshall confine ourselves to the inherent powers of the High Court in criminalcases. Now, s. 561-A says in clear terms that the inherent power of the HighCourt to do certain things is preserved and what we have to ascertain iswhether the power to expunge any passage from the judgment of a subordinatecourt is inherent in the High Court and must, therefore, be deemed to have beenpreserved.
26. The power of the High Court to expunge remarks from the judgment ororder of a subordinate court while dealing with an appeal from that court isnot questioned by Mr. Singh. In fact expunction of remarks was ordered by thisCourt in appeal in The State of U. P. v. J. N. Bagga [Cr.A. No. 122 of 1959decided on January 16, 1961.], but there is no discussion in the judgment onthe point, as the existence of the power was not challenged. We are notconcerned here with the powers of the appellate court. The question before usis whether the inherent power of the High Court to secure the ends of justiceembraces the power to expunge passages from the judgment of a subordinate courtwhich is independent of its statutory powers to alter, amend or reverse thejudgments of subordinate courts in appeals or revisions before it.
27. Observations made by a subordinate court in its judgment or order mayvery seriously affect, in a given case, only a party thereto in which event hecan, if the observations are irrelevant or unjustifiable, seek redress byappeal or revision, whichever of the remedies is available to him at law. Butwhat if a stranger to the proceeding or a lawyer engaged in the case isaffected by the court's remarks of a similar character Has he no remedy ?Must he suffer the consequences of irrelevant or unjustifiable remarks of acourt though if similar remarks were made against a party to the proceedingthat party is entitled to seek redress It would be a travesty of justice ifan injured stranger to a proceeding should have to suffer unheard as a resultof unjustifiable and harmful observations made by a court against him. The caseof an injured stranger would be of a kind in which redress would be possibleonly if some court possesses such power and can exercise it to secure the endsof justice. The question is whether the highest court in a State has and mustalways be deemed to have had such power. The further question is whether theexercise of such power would involve alteration of a judgment or order and ifso whether that must be deemed to have been permitted by the Code.
28. Certain cases were cited at the Bar and we will deal with them inchronological order. The first is In the matter of H. Daly I.L.R. (1927) Lah. 269. In that case Tek Chand J., said that the High Court has power toexpunge passages from judgments delivered by itself or by subordinate courtsand its power to do so has been put beyond controversy by the enactment of s.561-A in the Code of Criminal Procedure. While coming to this conclusion thelearned Judge has referred to five decisions of the Chief Court of Lahore andpointed out that that court claimed the power to expunge remarks in appropriatecases. It may incidentally be mentioned that he has also referred to thedecision in Panchanan Banerjee v. Upendra Nath I.L.R. (1926) All. 254, inwhich it was held that the High court had inherent power to order deletion ofpassages which are either irrelevant or inadmissible and which adversely affectthe character of persons before the Court. It may, however, be mentioned thatthat was a case where the learned Judge, Suleiman J. was dealing with an appealagainst acquittal and ordered the expunction of remarks while exercisingappellate jurisdiction though he has referred in this connection to theinherent powers of the court. Neither of these decisions, however, contains anydiscussion upon that point.
29. Then there is the decision in Rogers v. Shriniwas Gopal Kawale I.L.R.(1940) Bom. 415, in which Beaumont C.J. held that the High Court had no powerunder s. 561-A to expunge passages in judgments which have not been broughtbefore it in regular appeal or revision. There, an application was made unders. 561-A for expunging certain observations criticising a witness made by theAdditional Sessions Judge of Poona in a criminal appeal. Dealing with theapplication the learned Chief Justice observed :
'It is obvious that, if the jurisdiction exists,its exercise must place the Court in an anomalous position. The Court must gothough the record of a case in which it is not called upon to act judicially atthe instance of a party who is not aggrieved by the decision, and it may wellbe that the Court will have to come to a conclusion upon matters not in issuein the proceedings.'
30. He referred to the decision in Emperor v. C. Dunn (1922) 44 All. 401,and Emperor v. Sidaramaya 0049/1917 : (1917)19BOMLR912 , in the first of which itwas held that the High Court had no such jurisdiction and in the second it wassaid that it was doubtful whether such jurisdiction exists in the High Court.He expressed disagreement with the view taken in Panchanan Banerjee's caseI.L.R. (1926) All. 254 and Daly's case I.L.R. (1927) Lah. 269 andobserved :
'With all respect to the learned Judges who havetaken a different view, I am quite unable to see how section 561A affects thequestion. That section provides that nothing in the Code shall be deemed tolimit or affect the inherent power of the High Court to make such orders as maybe necessary to give effect to any order under the Code, or to prevent abuse ofthe process of any Court or otherwise to secure the ends of justice. So thatall that the section does is to preserve the inherent powers of the High Courtwithout conferring any additional power. In my opinion no Court can claiminherent power to alter the judgment of an other Court. All powers in appealand revision are statutory and not inherent in the superior Court. When once amatter is duly brought before a superior Court, then no doubt inherent powersmay be called in aid to enable the Court to do complete justice, but the powerto bring a matter in appeal or revision before a superior Court must beconferred by statute or some enactment having statutory effect.'
31. The learned Chief Justice observed that the power of superintendenceconferred upon the High Court by s. 224 of the Government of India Act overCourts subordinate to it does not enable the High Court to correct a judgmentof a subordinate court and pointed out that Sections 435 and 439 Cr.P.C. only enablethe High Court to satisfy itself about the correctness, legality or proprietyof any finding, sentence or order of an inferior court or of the regularity ofthe proceeding before it. Then he observed :
'When the High Court is hearing an application inappeal or revision, the whole matter is before it and it can make any orderconsequential or incidental to the order under review and, in my opinion, insuch a case the Court is entitled to expunge any remarks in the lower Court'sjudgment which it thinks ought not to have been made. But it seems to beimpossible to say that expunging passages from a judgment giving reasons for anorder which is not under appeal involves anything consequential or incidentalto the matter in appeal. If the Court thinks that any such action is calledfor, it can itself send for the record and act regularly in revision.'
32. In the end the learned Chief Justice held that the decision in Emperorv. Dunn (1922) 44 All. 401, was right and has not been altered by theintroduction of s. 561-A. This judgment was partially overruled by a Full Benchin State v. Nilkanth Shripad Bhave : AIR1954Bom65 . Chagla C.J., whodelivered the judgment of the court concurred with the observation of BeaumontC.J., that no court can claim inherent power to alter the judgment of anothercourt and after pointing out that Beaumont C.J., had also said in his judgmentthat the Court had inherent jurisdiction to alter the judgment once the mattercomes before it in appeal or revision, said :
'It is difficult to understand, if the High Courthas no inherent jurisdiction to alter the judgment of another Court, how thatjurisdiction arises merely because the matter comes before the High Court inappeal or revision. Either the Court has inherent jurisdiction or it has not.If it has inherent jurisdiction, it can be exercised either in appeal or inrevision, or,...... by an independent application made by the party under s.561-A.'
33. The learned Chief Justice then quoted the further observations ofBeaumont C.J., which we have reproduced earlier and said :
'It is difficult to understand how the Court canact regularly in revision if there is no effective order which can bechallenged in revision. Therefore, in our opinion this judgment was correctlydecided to the extent that it laid down that there was no inherent jurisdictionin a superior Court to alter the judgment of another Court. But to the extentthat this Division Bench laid down that the power to judicially correct thejudgment of a lower Court only arose in appeals and revisions it was notcorrectly decided. The power of the High Court judicially to correct anysubordinate Judge exists independently of applications which come before it byway of appeal or revision. This Court can judicially correct any subordinateJudge in any application made to it which it can entertain under s. 561-A ofthe Court.'
34. The learned Chief Justice then referred to an unreported decision of theBombay High Court in which the view was taken that the Court has jurisdictionto expunge remarks from the judgment of a lower court although the matter wasnot before it in appeal or revision and in which the Court expressed difficultyin appreciating the view taken in Roger's case I.L.R. (1940) Bom. 415. Thenthe learned Chief Justice pointed out that he did not find it easy tounderstand how if, as was said by Beaumont C.J., the power to alter thejudgment of an inferior Court is not an inherent power, it can be brought inaid as an inherent power provided only the matter is before the High Court, inwhat he has called regular revision. According to the learned Chief Justice inentertaining an application under s. 561-A 'what the High Court should dois not to expunge remarks but judicially to correct by its judgment the judgmentof the lower Court.' We also find it difficult to understand what BeaumontC.J. meant when he said on the one hand that the High Court has no inherentpower to alter the judgment of an inferior court and on the other that when thematter is before the High Court by way of regular revision it can alter thejudgment by exercising its inherent power. Either the High Court has inherentpower to alter a judgment of a subordinate court or it has not. If it has noinherent power to do so the mere fact that a regular proceeding arising out ofthe judgment of the sub-ordinate court is before it would make no difference.For, even then it cannot do anything as its revisional powers under s. 439Cr.P.C. do not enable it to expunge remarks. Yet, according to the learned ChiefJustice, the High Court can then exercise its inherent power. How it can do sowhen on the earlier statement of the legal position, it has no such inherentpower, is not easy to follow.
35. We also feel some difficulty in understanding the judgment of ChaglaC.J. when he says that by entertaining an application under s. 561-A the HighCourt can judicially correct the judgment of a subordinate court but at thesame time not expunge remarks therein as doing so would be altering thejudgment of the subordinate court. If the alteration or amendment of thejudgment or order of a subordinate court is not the necessary consequence ofthe judicial correction of such judgment or order we fail to see how removingfrom it a passage which is not relevant to the controversy decided by thejudgment would amount to such alteration. A judgment consists of the verdict ofthe court and its reasons bearing on it. If a superior court supersedes oralters or amends either of these it will be reversing, altering or amending thejudgment. But if a document embodying the judgment contains besides the court'sverdict and reasons therefor, any additional matter which is unrelated toeither of these two components of the judgment it cannot properly be regardedas a part of the judgment merely because it is contained in the same document.By including within the judgment irrelevant matter the court cannot make theman integral part of the judgment. The power to delete or order the deletion ofsuch matter for securing the ends of justice must be deemed to inhere in theHigh Court.
36. The learned chief Justice seems to accept the position that under s.561-A an application can be made to the High Court complaining of injuriousremarks by a subordinate court on the ground that they are unjustifiable orirrelevant and that such an application becomes a judicial proceeding beforethe High Court. He also accepts that the High Court can thereupon correct thejudgment of the subordinate court in appropriate circumstances. If the Highcourt has power in such a proceeding to correct the judgment or order of asubordinate court how exactly and when does it exercise it Earlier in hisjudgment the learned Chief Justice has said :
'A judgment of a lower court may be wrong; it mayeven be perverse. The proper way to attack that judgment is by bringing itunder the scrutiny of the superior Court and getting the judgment of the lowerCourt judicially corrected. But it is proper for the superior Court to alter oramend the judgment which has already been delivered In our opinion, theinherent power that the High Court possesses is, in proper cases, even thoughno appeal or revision may be preferred to this Court, to judicially correct theobservations of the lower Court by pointing out that the observations made bythe Magistrate were not justified or were without any foundation or were whollywrong or improper.'
37. It may be mentioned that the Advocate-General who appeared in the casehad urged that merely making observations of this kind or passing strictures ona subordinate court stands on a different footing from expunging objectionableremarks. The learned Chief Justice observed :
'In our opinion it is not necessary to express thedispleasure of this Court against any observations made by a Magistrate or by aSessions Judge by expunging the remarks from the judgment delivered by him. X XX X In our opinion, therefore, it would not be correct to say that expungingremarks from a judgment or deleting passages from a judgment constitutes theinherent power of any superior Court and, therefore, the inherent power of theHigh Court.'
38. The learned Chief Justice quite rightly holds that the High Court hasinherent power judicially to correct a subordinate court even for makingharmful remarks against a person who is not a party to the proceedings. But,according to him, the sole content of this power consists of expression by thesuperior court of its displeasure at the offending remarks. We can discern noprinciple upon which such a limitation on the inherent powers of the High Courtcan be justified.
39. Moreover, mere expression by the High Court of its displeasure at theoffending observations of a subordinate court even be regarded as amounting to'judicial correction' of the error committed by such Court. For,despite the disapprobation, the remarks continue to be there on the record ofthe subordinate court. The form normally adopted by a superior court for'judicial correction' of an error of a subordinate court does notconsist of mere expression of its disagreement with the view taken by thesubordinate court but of effacing that error and thus depriving it of its legaleffect. That is precisely what ought to be done with respect to irrelevantremarks of a subordinate court when they are found to be unjustifiable andharmful. The appropriate form in which this part of the judicial process may becarried out would be either by expunging them or directing them to be expungedso that they would cease to have any effect.
40. There can be no doubt that the judgment of a tribunal empowered by lawto adjudicate upon and decide any matter affecting the rights of parties isinviolable unless the law allows it to be questioned or interfered with. Insuch a case the judgment can be challenged only and interfered with only by thespecified authority and to the extent permissible by the express provisions oflaw. No other court, not even the High Court, unless expressly permitted by lawcan entertain a challenge or exercise any power with respect to a judgment. Itsinherent power is not exercisable for this purpose because what is made finalor inviolable by law is beyond the purview of such power. But the inviolabilitywhich attaches to a judgment must necessarily be confined to its integralparts, that is the verdict and reasons therefor. It cannot extend to matterswhich though ostensibly a part of the judgment are not in reality its integralparts. It is because of this that the majority of the High Courts hold thatthey have always had the power to expunge passages from the judgments ofsubordinate courts in certain circumstances. In other words that this power hasalways been there and can be resorted to for securing the ends of justice. Itis significant to note that despite this, though the Code was amendedmaterially in 1955 the legislature did not indicate in s. 561-A or any otherprovision that this power did not exist or is taken away. Clearly the HighCourts, by expunging remarks from an order or judgment of a subordinate court,would not in any event be altering it on merits or in any matter of substancebut be only deleting from it matter which being alien to the matter before thecourt ought never to have been there. When such only is the effect of what theHigh Court does, can prohibition to this court be inferred from the fact thatSections 423 and 439, which deal with appellate and revisional powers, are silentabout such matters We are clear that they do not exclude such power. Asalready stated, expunction of irrelevant remarks does not amount to thealteration or amendment of a judgment or an order of a subordinate court. Nodoubt, the exercise of such power will have the effect of taking out of thejudgment or order something which was there before and thus in a limited way tointerference with the content of the document embodying the judgment or order.But bearing in mind the paramount importance of securing the ends of justicethe High Court must be deemed to have such power.
41. When we speak of the inherent powers of the High Court of a State wemean the powers which must, by reason of its being the highest court in theState having general jurisdiction over civil and criminal courts in the State,inhere in that court. The powers in a sense are an inalienable attribute of theposition it holds with respect to the courts subordinate to it. These powersare partly administrative and partly judicial. They are necessarily judicialwhen they are exercisable with respect to a judicial order and for securing theends of justice. When we speak of ends of justice we do not use the expressionto comprise within it any vague or nebulous concept of justice, nor evenjustice in the philosophical sense but justice according to law, the statutelaw and the common law. Again, this power is not exercisable every time theHigh Court finds that there has been a miscarriage of justice. For, theprocedural laws of the State provide for correction of most of the errors ofsubordinate courts which may have resulted in miscarriage of justice. Theseerrors can be corrected only by resorting to the procedure prescribed by lawand not otherwise. Inherent powers are in the nature of extraordinary powersavailable only where no express power is available to the High Court to do aparticular thing and where its express powers do not negative the existence ofsuch inherent power. The further condition for its exercise, in so far as casesarising out of the exercise by the subordinate courts of their criminaljurisdiction are concerned, is that it must be necessary to resort to it forgiving effect to an order under the Code of Criminal Procedure or forpreventing an abuse of the process of the court or for otherwise securing theends of justice.
42. The power to expunge remarks is no doubt an extraordinary power butnevertheless it does exist for redressing a kind of grievance for which thestatute provides no remedy in express terms. The fact that the statuterecognizes that the High Courts are not confined to the exercise of powersexpressly conferred by it and may continue to exercise their inherent powersmakes three things clear. One, that extraordinary situations may call for theexercise of extraordinary powers. Second, that the High Courts have inherentpower to secure the ends of justice. Third, that the express provisions of theCode do not affect that power. The precise powers which inhere in the HighCourt are deliberately not defined by s. 561-A for good reason. It is obviouslynot possible to attempt to define the variety of circumstances which will callfor their exercise. No doubt, this section confers no new power but it doesrecognise the general power to do that which is necessary 'to give effectto any order under this Code, or to prevent abuse of the process of any Courtor otherwise to secure the ends of justice.' But then, the statute doesnot say that the inherent power recognised is only such as has been exercisedin the past either. What is says is that the High Courts always had suchinherent power and that this power has not been taken away. Whenever in acriminal matter a question arises for consideration whether in particularcircumstances the High Court has power to make a particular kind of order inthe absence of express provision in the Code or other statute the test to beapplied would be whether it is necessary to do so to give effect to an orderunder the Code or to prevent the abuse of the process of the court or otherwiseto secure the ends of justice.
43. When the question arises before the High Court in any specific casewhether to resort to such undefined power it is essential for it to exercisegreat caution and circumspection. Thus when it is moved by an aggrieved partyto expunge any passage from the order or judgment of a subordinate court itmust be fully satisfied that the passage complained of is wholly irrelevant andunjustifiable, that its retention on the records will cause serious harm to theperson to whom it refers and that its expunction will not affect the reasonsfor the judgment of order.
44. This aspect of the matter has been emphasised by Chagla C.J., in theaforesaid case and we have no doubt that it is very necessary in order tomaintain the independence of the judiciary that every presiding officer of acriminal court, however junior, should feel that he can fearlessly giveexpression to his view in the judgment or order which he delivers and that noimpression should be allowed to be created in the mind of the presiding officerthat the High Court is likely to interfere lightly with his opinions. For,otherwise his independence will be seriously undermined.
45. To sum up, every High Court as the highest court exercising criminaljurisdiction in a State has inherent power to make any order for the purpose ofsecuring the ends of justice. This power extends to expunction or orderingexpunction of irrelevant passages from a judgment or order of a subordinatecourt and would be exercised by it in appropriate cases for securing the endsof justice. Being an extraordinary power it will, however, not be pressed inaid except for remedying a flagrant abuse by a subordinate court of its powerssuch as by passing comment upon a matter not relevant to the controversy beforeit and which is unwarranted or is likely to harm or prejudice another.
46. In the case before us, as we have already indicated, the remarks are notsuch as are likely to cause harm to the appellant nor are such as should causeany harm to him. We, therefore, hold that this is not a fit case for theexercise of the extraordinary power of the High Court under s. 561-A. For thesereasons we dismiss the appeal.
47. Appeal dismissed.