Surendra Sharma Vs. State of Rajasthan - Court Judgment

SooperKanoon Citationsooperkanoon.com/762929
SubjectCriminal
CourtRajasthan High Court
Decided OnMay-12-2009
Judge S.P. Pathak, J.
Reported inRLW2009(3)Raj2726
AppellantSurendra Sharma
RespondentState of Rajasthan
DispositionPetition allowed
Cases ReferredState of W.B. and Ors. v. Babu Chakraborthy (supra
Excerpt:
- - 4. i have heard the learned counsel for the petitioner as well as the learned public prosecutor. k li'v gksrk gs a 9.the facts as have been discussed hereinabove reveals that the remarks made by the trial court to the effect that the gun was not sent for fsl examination is not well founded in view of the documents ex. the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only.s.p. pathak, j.1. this criminal misc. petition has been filed under section 482 cr.p.c. against the remarks passed by the addl. district & sessions judge (fast track) no. 2, bharatpur in sessions case no. 16/2001 in his judgment dated 4.9.2003 with the prayer to expunge the same from the order as also for quashing of the proceedings initiated in pursuance of the aforesaid impugned judgment/order.2. briefly stated the facts of the case for disposal of this petition are that at the relevant time, petitioner was posted as s.h.o., police station, mathura gate, bharatpur in the year 2000. during his posting as s.h.o., police station, mathura gate, bharatpur, on a parcha bayan dated 15.6.2000 of one shri chotey lal s/o bhoori singh police registered f.i.r. no. 329/2000 against accused persons for committing offence under section 307 i.p.c. the investigation of the case was done by shri banwari lal yadav sub inspector. during the course of investigation, he recorded statements of witnesses, inspected the site, prepared site-plan and recovered various articles lying at the place of occurrence. banwari lal s.i. arrested accused roop kishore and on his information a twelve bore gun and cartridges were recovered. the gun so recovered was seized by him and the same was sent to forensic science laboratory, jaipur for examination. a receipt thereof was obtained from forensic science laboratory, jaipur on 7.12.2000. after completion of investigation, charge-sheet was filed against accused persons for offence under section 307 i.p.c. and under section 3/27 of the arms act. the fire-arms sent for examination to fsl, jaipur were received back by the superintendent of police, bharatpur along with a letter on 6.3.2002 with certain objections. the superintendent of police, bharatpur sent the articles received from fsl to the s.h.o., police station, mathura gate, bharatpur namely the petitioner. the petitioner after making compliance of the directions, again sent the articles along with requisition letter to superintendent of police, bharatpur to issue necessary letter to the fsl, jaipur regarding examination of articles in question and after issuance of the same the articles were again deposited at fsl, jaipur on 21.6.2003 and a receipt thereof was obtained on 21.6.2003. during this time accused was committed to the court of sessions. charges were framed against the accused persons. in all the prosecution examined 23 witnesses and tendered several document in evidence including the receipts dated 7.12.2000 and 21.6.2003 respectively ex.p20 & ex.p28 in relation to deposit of the seized articles issued by the fsl, jaipur. the learned trial court after hearing final submissions, acquitted the accused from the charges framed against them vide its judgment dated 4.9.2003.3. the learned trial court while acquitting the accused made remarks against the petitioner to the effect that the firearms were not sent by him for examination to the fsl, jaipur. therefore, it could not be ascertained as to whether the gun which was recovered was fired at the time of incident and that was gross irregularity on part of the petitioner. the petitioner having felt aggrieved with the remarks made by the learned addl. district & sessions judge (fast track) no. 2, bharatpur in sessions case no. 16/2001 has preferred this misc. petition with the prayer to expunge the same and to quash the departmental proceedings initiated against him in pursuance of the order made by the trial court.4. i have heard the learned counsel for the petitioner as well as the learned public prosecutor.5. it has been contended that the remarks are required to be expunged as without giving any opportunity to the petitioner adverse remarks against him have been recorded in the judgment, which has ruined the entire future service of the petitioner. it has also been contended that the trial court while issuing direction to the higher authorities of the petitioner for taking action against him, which is without jurisdiction and arbitrary in manner. it is contended that the law laid down by the hon'ble apex court is almost settled on the point that without affording proper opportunity, if adverse remarks are entered in the judgment then the same should be expunged. it has also been contended that the trial court has not properly scrutinized the evidence in this regard, which was available with the trial court in as much as the trial court has overlooked the receipts ex.p20 & ex.p28 as also the statements of the investigating officer p.w.23 banwari lal and p.w.i8 hari singh, who had taken the articles to fsl, jaipur. as such the remarks made by the learned trial court that the gun was not sent to fsl, jaipur is contrary to the record of the case to the extent that it could not be ascertained as to whether any fire was made from the gun recovered in the case. it has also been contended that shri banwari lal p.w.23 has appeared as witness in the case but no explanation was sought from him about not sending the gun for examination in the fsl, jaipur. it is submitted mat the role of the petitioner as s.h.o. at the relevant time in the present matter was limited to the extent of filing of charge-sheet and has done nothing in the case after completion of the investigation. the learned counsel in support of his submissions has placed reliance on the decisions in the case of : 2004(10) scc 88 - testa setalvad and anr. v. state of gujarat and ors. 2004 (12) scc 20j - state of w.b. and ors. v. babu chakraborthy and : air 1964 sc 703 - the state of uttar pradesh v. mohammad nairn.6. i have considered the submissions and perused the material available on record.7. in the instant case the point for consideration is as to whether without afording opportunity to the petitioner, the adverse remarks made against him are liable to be expunged or not?8. it is to be seen that after trial accused were acquitted by the trial court vide its judgment and order dated 4.9.2003. following observations were made against the petitioner:izdj.k esa tcr'kqnk] cunwd] [kkyh [kks[kk dkjrwl dks ijh{k.k gsrq fof/k fokku iz;ksx'kkyk t;iqj dks fkkukf/kdkjh lqjsunz 'kekz dks }kjk ugh hkstk x;k ftl dkj.k ls izdj.k esa tcr'kqnk cunwd ls ?kvuk ds odr qk;j fd;k x;k gks] fjikszv izkir djus esa fkkukf/kdkjh lqjsunz 'kekz ds }kjk xehkhj vfu;ferrk fd;k tkuk i=koyh ij miyc/k rf;ksa ls iw.kzr;k li'v gksrk gs a9.the facts as have been discussed hereinabove reveals that the remarks made by the trial court to the effect that the gun was not sent for fsl examination is not well founded in view of the documents ex.p20 & ex.p28. ex,p20 & ex.p28, are the receipts issued by the fsl, jaipur in relation to the seized articles deposited in the fsl for examination. if that be so then the adverse remarks made by the trial court were uncalled for. it further appears that when p.w.23 banwari lal investigating officer and p.w.18 hari singh were examined and they deposed in their statements about the seizure of the gun. there appears no explanation sought in relation to not sending the recovered articles to the fsl.10. in the present matter, it is established prima facie on the basis of above two documents namely ex.p20 & ex.p28 that the articles were sent firstly at the initial stage and subsequently when the articles received back with certain objections bys4he fsl, the same were again sent after making compliance of the objections made by the fsl. therefore, in my opinion, adverse remarks against the petitioner made by the learned trial court were uncalled for and contrary to record of the case.11. now, the other aspect of the matter, which requires consideration is that as per the admitted position of facts, it appears that prior to recording adverse remarks in relation to functioning of the petitioner, no opportunity was provided to him by the trial court.12. in the case of state of u.p. v. mohammad nairn (supra), it has been observed by the hon'ble apex court that the court has inherent power to expunge remarks made by it or a lower court if it be necessary to do so to prevent abuse of the process of the court or otherwise to secure the ends of justice; the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only. it has further been observed as under:it is a principle of cardinal importance in the administration of justice, that the proper freedom and independence of judges and magistrates must be maintained and they mutt be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by the supreme court, at the same time it is equally necessary that in expressing their opinions judges and magistrates must be guided by considerations of justice, fair play and restraint.13. in the case of testa setalvad v. state of gujarat (supra), it has been observed by the hon'ble apex court that remarks in the judgment must be relevant to subject-matter of adjudication and opportunity must be given to the person against whom remarks are required to be made.14. in the case of state of w.b. and ors. v. babu chakraborthy (supra), the hon'ble apex court has observed that without affording an opportunity of being heard to the officer against whom stricutres are passed is not justified.15. after carefully examining the present matter, i am of the opinion that the remarks/strictures made against the accused petitioner in its judgment by the learned addl. district & sessions judge (fast track) no. 2, bharatpur dated 4.9.2003 in sessions case no. 16/2001 requires to be expunged and the misc. petition is liable to be accepted.16. in the result, the petition is allowed and it is hereby directed that the adverse remarks made by the learned addl. district & sessions judge (fast track) no. 2, bharatpur in its judgment dated 4.9.2003 in sessions case no. 16/2001 quoted above shall stand expunged and deleted from the above judgment of the trial court and consequently must be treated as having never existed as the part of the judgment and all the consequential proceedings in furtherance of the adverse remarks made by the learned trial judge against the petitioner are hereby quashed.
Judgment:

S.P. Pathak, J.

1. This criminal misc. petition has been filed under Section 482 Cr.P.C. against the remarks passed by the Addl. District & Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 16/2001 in his judgment dated 4.9.2003 with the prayer to expunge the same from the order as also for quashing of the proceedings initiated in pursuance of the aforesaid impugned judgment/order.

2. Briefly stated the facts of the case for disposal of this petition are that at the relevant time, petitioner was posted as S.H.O., Police Station, Mathura Gate, Bharatpur in the year 2000. During his posting as S.H.O., Police Station, Mathura Gate, Bharatpur, on a Parcha Bayan dated 15.6.2000 of one Shri Chotey Lal S/o Bhoori Singh police registered F.I.R. No. 329/2000 against accused persons for committing offence under Section 307 I.P.C. The investigation of the case was done by Shri Banwari Lal Yadav Sub Inspector. During the course of investigation, he recorded statements of witnesses, inspected the site, prepared site-plan and recovered various articles lying at the place of occurrence. Banwari Lal S.I. arrested accused Roop Kishore and on his information a Twelve bore gun and cartridges were recovered. The gun so recovered was seized by him and the same was sent to Forensic Science Laboratory, Jaipur for examination. A receipt thereof was obtained from Forensic Science Laboratory, Jaipur on 7.12.2000. After completion of investigation, charge-sheet was filed against accused persons for offence under Section 307 I.P.C. and under Section 3/27 of the Arms Act. The fire-arms sent for examination to FSL, Jaipur were received back by the Superintendent of Police, Bharatpur along with a letter on 6.3.2002 with certain objections. The Superintendent of Police, Bharatpur sent the articles received from FSL to the S.H.O., Police Station, Mathura Gate, Bharatpur namely the petitioner. The petitioner after making compliance of the directions, again sent the articles along with requisition letter to Superintendent of Police, Bharatpur to issue necessary letter to the FSL, Jaipur regarding examination of articles in question and after issuance of the same the articles were again deposited at FSL, Jaipur on 21.6.2003 and a receipt thereof was obtained on 21.6.2003. During this time accused was committed to the court of sessions. Charges were framed against the accused persons. In all the prosecution examined 23 witnesses and tendered several document in evidence including the receipts dated 7.12.2000 and 21.6.2003 respectively Ex.P20 & Ex.P28 in relation to deposit of the seized articles issued by the FSL, Jaipur. The learned trial court after hearing final submissions, acquitted the accused from the charges framed against them vide its judgment dated 4.9.2003.

3. The learned trial court while acquitting the accused made remarks against the petitioner to the effect that the firearms were not sent by him for examination to the FSL, Jaipur. Therefore, it could not be ascertained as to whether the gun which was recovered was fired at the time of incident and that was gross irregularity on part of the petitioner. The petitioner having felt aggrieved with the remarks made by the learned Addl. District & Sessions Judge (Fast Track) No. 2, Bharatpur in Sessions Case No. 16/2001 has preferred this Misc. Petition with the prayer to expunge the same and to quash the departmental proceedings initiated against him in pursuance of the order made by the trial court.

4. I have heard the learned Counsel for the petitioner as well as the learned Public Prosecutor.

5. It has been contended that the remarks are required to be expunged as without giving any opportunity to the petitioner adverse remarks against him have been recorded in the judgment, which has ruined the entire future service of the petitioner. It has also been contended that the trial court while issuing direction to the higher authorities of the petitioner for taking action against him, which is without jurisdiction and arbitrary in manner. It is contended that the law laid down by the Hon'ble Apex Court is almost settled on the point that without affording proper opportunity, if adverse remarks are entered in the judgment then the same should be expunged. It has also been contended that the trial court has not properly scrutinized the evidence in this regard, which was available with the trial court in as much as the trial court has overlooked the receipts Ex.P20 & Ex.P28 as also the statements of the Investigating Officer P.W.23 Banwari Lal and P.W.I8 Hari Singh, who had taken the articles to FSL, Jaipur. As such the remarks made by the learned trial court that the gun was not sent to FSL, Jaipur is contrary to the record of the case to the extent that it could not be ascertained as to whether any fire was made from the gun recovered in the case. It has also been contended that Shri Banwari Lal P.W.23 has appeared as witness in the case but no explanation was sought from him about not sending the gun for examination in the FSL, Jaipur. It is submitted mat the role of the petitioner as S.H.O. at the relevant time in the present matter was limited to the extent of filing of charge-sheet and has done nothing in the case after completion of the investigation. The learned Counsel in support of his submissions has placed reliance on the decisions in the case of : 2004(10) SCC 88 - Testa Setalvad and Anr. v. State of Gujarat and Ors. 2004 (12) SCC 20J - State of W.B. and Ors. v. Babu Chakraborthy and : AIR 1964 SC 703 - The State of Uttar Pradesh v. Mohammad Nairn.

6. I have considered the submissions and perused the material available on record.

7. In the instant case the point for consideration is as to whether without afording opportunity to the petitioner, the adverse remarks made against him are liable to be expunged or not?

8. It is to be seen that after trial accused were acquitted by the trial court vide its judgment and order dated 4.9.2003. Following observations were made against the petitioner:

izdj.k esa tCr'kqnk] cUnwd] [kkyh [kks[kk dkjrwl dks ijh{k.k gsrq fof/k foKku iz;ksx'kkyk t;iqj dks Fkkukf/kdkjh lqjsUnz 'kekZ dks }kjk ugh Hkstk x;k ftl dkj.k ls izdj.k esa tCr'kqnk cUnwd ls ?kVuk ds oDr Qk;j fd;k x;k gks] fjiksZV izkIr djus esa Fkkukf/kdkjh lqjsUnz 'kekZ ds }kjk xEHkhj vfu;ferrk fd;k tkuk i=koyh ij miyC/k rF;ksa ls iw.kZr;k Li'V gksrk gS A

9.The facts as have been discussed hereinabove reveals that the remarks made by the trial court to the effect that the gun was not sent for FSL examination is not well founded in view of the documents Ex.P20 & Ex.P28. Ex,P20 & Ex.P28, are the receipts issued by the FSL, Jaipur in relation to the seized articles deposited in the FSL for examination. If that be so then the adverse remarks made by the trial court were uncalled for. It further appears that when P.W.23 Banwari Lal Investigating Officer and P.W.18 Hari Singh were examined and they deposed in their statements about the seizure of the gun. There appears no explanation sought in relation to not sending the recovered articles to the FSL.

10. In the present matter, it is established prima facie on the basis of above two documents namely Ex.P20 & Ex.P28 that the articles were sent firstly at the initial stage and subsequently when the articles received back with certain objections bys4he FSL, the same were again sent after making compliance of the objections made by the FSL. Therefore, in my opinion, adverse remarks against the petitioner made by the learned trial court were uncalled for and contrary to record of the case.

11. Now, the other aspect of the matter, which requires consideration is that as per the admitted position of facts, it appears that prior to recording adverse remarks in relation to functioning of the petitioner, no opportunity was provided to him by the trial court.

12. In the case of State of U.P. v. Mohammad Nairn (supra), it has been observed by the Hon'ble Apex Court that the court has inherent power to expunge remarks made by it or a lower court if it be necessary to do so to prevent abuse of the process of the court or otherwise to secure the ends of justice; the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only. It has further been observed as under:

It is a principle of cardinal importance in the administration of justice, that the proper freedom and independence of Judges and Magistrates must be maintained and they mutt be allowed to perform their functions freely and fearlessly and without undue Interference by any body, even by the Supreme Court, At the same time it is equally necessary that in expressing their opinions Judges and Magistrates must be guided by considerations of justice, fair play and restraint.

13. In the case of Testa Setalvad v. State of Gujarat (supra), it has been observed by the Hon'ble Apex Court that remarks in the judgment must be relevant to subject-matter of adjudication and opportunity must be given to the person against whom remarks are required to be made.

14. In the case of State of W.B. and Ors. v. Babu Chakraborthy (supra), the Hon'ble Apex Court has observed that without affording an opportunity of being heard to the officer against whom stricutres are passed is not justified.

15. After carefully examining the present matter, I am of the opinion that the remarks/strictures made against the accused petitioner in its judgment by the learned Addl. District & Sessions Judge (Fast Track) No. 2, Bharatpur dated 4.9.2003 in Sessions Case No. 16/2001 requires to be expunged and the Misc. Petition is liable to be accepted.

16. In the result, the petition is allowed and it is hereby directed that the adverse remarks made by the learned Addl. District & Sessions Judge (Fast Track) No. 2, Bharatpur in its judgment dated 4.9.2003 in Sessions Case No. 16/2001 quoted above shall stand expunged and deleted from the above judgment of the trial court and consequently must be treated as having never existed as the part of the judgment and all the consequential proceedings in furtherance of the adverse remarks made by the learned trial Judge against the petitioner are hereby quashed.