ORDER
Brij Mohan Gupta, J.
1. Shri A.K. Barua, Senior Advocate with Shri Vinay Sharma, Advocate for the Petitioner.
Shri V.S. Chaturvedi, P.L. for the respondent/State.
2. This petition has been preferred impugning the adverse remarks passed against the petitioner in Paras 28 and 58 of judgment dated 23rd August, 2005, passed by JMFC, Dabra, District Gwalior in Criminal Case No. 1004/2004.
3. Shri Barua for the petitioner has submitted that the petitioner, being the Police Officer was examined as a witness in the aforementioned case. At the time of passing of the judgment disparaging remarks were passed, without providing any opportunity of hearing to him. Hence the remarks are required to be quashed. Shri Barua, placed reliance on Manish Dixit and Ors. v. State of Rajasthan (2001) SCC (Cri.) 235.
4. Shri V.S. Chaturvedi, for the respondent/State has submitted that the observation of the learned Magistrate is simply an observation regarding the conduct of the petitioner. Opportunity of hearing will be given to him by the department, if any action is taken. He has also submitted that after passing of the aforementioned judgment, a preliminary enquiry has been conducted against the. petitioner by the department in which also he has been found guilty.
5. Facts, in brief, as per the judgment dated 23-8-2005 passed by JMFC Dabra in Criminal Case No. 1004/2004, are that on 25-4-1992 police received an information that some armed badmash (notified offenders) are staying at the resident of one Asha. The petitioner alongwith other Constables reached at the residence of Asha. Constable Ramesh knocked at the door. One person aged about 35 years came out with baka (sharp edged weapon) and inflicted injuries at the private parts of Constable Ramesh. In the meantime, Asha also came up and pushed the Constable Ramesh and told the said badmash Tappey to escape immediately. Constable Ramesh followed the running badmash Tappey but he could not be arrested. FIR was lodged by Constable Ramesh. Petitioner, who was Sub-Inspector of Police, was listed as witness. During trial he was examined as P.W. 8. In examinationin-chief, he supported the prosecution story but during cross-examination in Para 4 he has stated-
gkftj vnkyr vkjksih vk’kk us uk rks iqfyl cy dks vojksf/kr fd;k u gh fdlh iqfyl deZpkjh ij dksbZ gkFk mBk;k A esjs lkeus gkftj vnkyr vkjksih us iqfyl cy dh ekjihV djus esa Hkh dksbZ lg;ksx ugh fd;k A tc eS igqapk rks gkftj vnkyr vkjksih efgyk dsoy njokts ij [kM+h Fkh A
Considering this statement of this witness against the prosecution case and a false statement, the following remarks have been passed in Paras 28 and 58 of the aforementioned judgment:
28. It clearly indicates, that P.W. 8 Lekaram Jumnani is telling a lie in the Paras 3 and 4 of his cross-examination. It also indicates that the then Sub-Inspector of Police P.W. 8 Lekaram Jumnani is not stable at all in his statements, but he is willfully causing disappearance of evidence and giving the false statement to screen the offender Asha.
58. One copy of this judgment shall be sent to the I.G. Police, Gwalior Zone Gwalior for the necessary action, against the Constable No. 565 Ramesh Kumar Sharma, now posted at Superintendent of Police Office Datia and against the Lekaram Jumnani, Police Inspector D.R.P. Line Bhind because it is found in the judgment that both of the police officials had the interest for causing disappearance of evidence and Lekaram Jumnani was giving the false statement to screen the offender Asha.
Feeling aggrieved with these remarks, this petition has been preferred by the petitioner.
6. In the case of Manish Dixit (supra), cited on behalf of the petitioner, test identification parade was conducted by one Devendra Kumar Sharma (P.W. 30) in the capacity of Tehsildar/Executive Magistrate. In examination-in-chief few facts from him were elicited by the Public Prosecutor pertaining to those aspects and the documents prepared therewith were marked through him. When he was cross-examined, he was asked about seal impression found on the packets which contained the recovered jeweleries. He answered that he did not compare the impression with any other seal. He was then confronted with the memo of seizure Exh. P-28 and he was asked whether he had recorded the fact therein truly. He answered thus, “It might have been correctly recorded in that memo or I have not been able to recollect”. After the cross-examination was over, the Public Prosecutor did not put up a single question in re-examination. The Trial Court came down very harshly against this witness and passed observations. “The statement of such a responsible officer like Tehsildar opposing the fard made by his shows either Exhs. P-20, 21 and 28 were written wrong or he has made wrong statement before the Court. In any circumstances, this action is highly unacceptable from a responsible officer of such status. Therefore, I would like to bring to the notice of the State Government that in this regard, appropriate action should be taken against him, so that any officer does not make such a false report or does not give false evidence in the Court”. It was challenged by Devendra Kumar before High Court under Section 482 of Cr.P.C., where also some remarks were added against him. Matter went up to Supreme Court. In Paras 39,40 and 43 the Hon’ble Court observed that:
39. In our opinion, both the Trial Court and the High Court should have avoided making such unsavory comments against a witness in such a manner as to entail serious implications on his career, merely because the answers which were extracted from him through cross-questions contained contradictions or inconsistencies. It should have been remembered that P.W. 30 (Devendra Kumar Sharma) was cited by the prosecution and the chief examination was conducted by a Public Prosecutor. Once the witness was cross-examined the Public Prosecutor had an opportunity under law to put such questions as were necessary for “explanation of matters referred to in cross-examination”. It is un-understandable to us why the Public Prosecutor did not put a single question at re-examination stage, at least for the purpose of giving him opportunity to explain such incongruities which fell from his mouth during cross-examination.
40. If the Trial Court felt that some of the answers given by that witness during cross-examination were so inconsistent or contradictory and that such answers per se required judicial castigation the Court also had a duty to invoke its powers envisaged in Section 165 of the Evidence Act….
41. & 42. … …. …. …. …. ….
43. Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the Court against any person, particularly when such remarks could ensure serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Such an opportunity is the basic requirement, for, otherwise the offending remarks would be in violation of the principles of natural justice….
7. In the present case also, the petitioner was neither re-examined by the prosecutor nor any question was put by the Court under Section 165 of the Evidence Act for seeking clarification and also providing an opportunity to explain the situation. In view of the aforementioned observation of the Apex Court, in absence of such an opportunity of hearing, the remarks passed by the learned Magistrate deserves to be expunged.
8. With regard to contention of Shri Chaturvedi, it can only be mentioned that by this order the aforementioned remarks passed by the learned Magistrate are being expunged. Despite, if the department wants to make some action against the petitioner, this order will not be considered as a bar towards any departmental action, if otherwise required as per the law/rules.