ORDER
Shacheendra Dwivedi, J.
1. This petition has been filed under Section 482 of the Code of Criminal Procedure, 1973, invoking the inherent powers of this Court for expunging the remarks passed against the petitioner by Judicial Magistrate First Class, Gwalior in order dated 6-11-1980, in case No. 206/1989 (Criminal Original).
2. Briefly stated facts of the case, in which the impugned remarks, which are sought to be expunged came to be passed, are that the then T.I. Police Station Bahodapur, viz., Mukesh Kumar Saxena made a raid and took search of Harisons Hotel situate at Gwalior. He found country made pistol and six cartridges lying underneath the pillow of Harilal. He also found that the said fire-arm and ammunition was without licence and therefore he seized the same. Later on, a challan was filed against said Harilal under Sections 25/27 of the Arms Act in the Court of Judicial Magistrate First Class, Gwalior. During the trial, the prosecution examined the panch-witnesses Hiralal (P.W.1) and Saiyad Khan (P.W.2) and the two police officers, Viz., Mukesh Kumar Saxena (P.W.3), T.I. Police Station Bahodapur and investigating officer, H.C. Udalsingh (P.W.4) in support of the case.
3. The two panch-witnesses turned hostile and the two police officers, although not declared hostile, did not support the prosecution case. The learned Magistrate, in the circumstances, was left with no option but to acquit the accused. While concluding his order, the learned Magistrate expressed, his anguish at the conduct of the Police Officers, and withnesses and in that context the impugned remarks came to be passed against the petitioner also, with a further direction to send the copies of the order to his superior officers i.e. I.G. and D.I.G. Police. This part of the order forms subject matter of this petition and is challenged in this petition.
4. The petitioner is a member of Indian Police Service and was then posted as a City Superintendent of Police at Gwalior. He was neither cited as a witness nor was examined as such in the case and was totally unconcerned. During the trial of accused, the T.I. Mukesh Kumar Saxena (P.W.3), at first, stated that the revolver (Art. A) and cartridges (Art. B) were seized from the accused at the spot, but in cross-examination denind the factum of seizure of those articles. He also denied that he had investigated the crime. He further stated that he had taken the search of the hotel and that search party also included, T.I. of P.S. Inderganj, Radha Mohan Shrivastava, T.I. of P.S. Paday Subhash Tiwari, the petitioner and other officers. This witness admitted his signatures on the seizure memo (Annexure P-l) but denied to have himself scribed it. The other witness H.C. Udalsingh (P.W.4), who was the investigating Officer in this case, in his statement, deposed that the petitioner had come to the Thana with police force and he had accompanied him to the hotel. He also stated that it was the petitioner, who had brought the revolver from inside the hotel and then it was seized. This witness, further in his statement denied to have scribed the seizure memo (Japti Panchanama) or to have signed the same. Thus, he totally expressed his ignorance about the incident. The defence did not suggest to any of the prosecution witnesses that the petitioner was in any way involved or interested in the investigation or implication of accused in the case.
5. Shri V. K. Saxena, learned counsel for the petitioner has submitted that it was under such state of contradictory evidence as deposed to by the prosecution witnesses and police officers in particular, the accused came to be acquitted. Taken aback at the sorrowful state of evidence deposed to by the responsible police officers P.Ws. 3 and 4 and while observing at their demeanour the learned trial Magistrate came heavily to shower upon the acts and conduct of these police officers. While doing so, he included the name of the petitioner, though, apparently, the documents on record did not show any participation of the petitioner in the proceedings and there was nothing to indicate that he was in any way connected with the investigation of the crime.
6. It would be relevant here to reproduce the remarks passed, which included the name of the petitioner :
^^var esa eSa izdj.k ds vuqla/kkudrkZ eqds’k
lDlsuk] Vh- vkbZ- cgksM+kiqj o iz/kku vkj{kd Åny flag ds vkpj.k ij fVIi.kh djuk
izdj.k dh ifjfLFkfr;ksa dks ns[krs gq, mfpr le>rk gw¡A mDr nksuksa O;fDr
iqfyl foHkkx esa ftEesnkj in ij inLFk gSa vkSj os izdj.k esa vfHk;kstu ds
egRoiw.kZ lk{kh Hkh gSa ysfdu mUgksaus viuh ftjg esa muds }kjk dh xbZ leLr
dk;Zokfg;ksa ls vfuf’prrk O;Dr dh gS vr% tc iqfyl ds deZpkjh gh vius }kjk fd;s
x;s drZO; dh dk;Zokfg;ksa dk leFkZu ugha djsaxs vkSj vkjksih dk i{k leFkZu
djsaxs rks iqfyl ds }kjk dj xbZ dk;Zokfg;ksa dk dksbZ vkSfpR; ugha jg tkosxk
vkSj muds }kjk dh xbZ leLr dk;Zokfg;ksa flQZ mudk LokFkZ fl)h dk lk/ku cuds jg
tk;saxh rFkk vuko’;d :i ls U;k;ky;hu dk;Zokgh dk nq:i;ksx gksxkA vr% izLrqr
izdj.k esa dh xbZ dk;Zokfg;ksa esa Hkkx ysus okys iqfyl deZpkjh lh- ,l- ih-
jk.kk] bUnjxat ds Vh- vkbZ- jk/kkeksgu JhokLro] Fkkuk iM+ko ds Vh- vkbZ-
lqHkk”k frokjh] cgksM+kiqj ds Vh- vkbZ- eqds’k lDlsuk vkSj muds v/khuLFk
deZpkjh iz/kku vkj{kd Ånyflag ds vkpj.k dh HkRlZuk fd;k tkuk vko’;d gks tkrk
gks] ftlls fd gjhyky ds leku vU; funksZ”k O;fDr U;k; dh izfØ;k dk nq:i;ksx
gksus ls cp ldsaA**
7. The inclusion of the name of the petitioner in the abovesaid passage, while observing the demeanour, thus appears to be without any occasion or any basis and there was no reason for the learned Magistrate to condemn the petitioner while passing such remarks. It is the cardinal principle of dispensation of justice that an opportunity be afforded to a person to explain his acts and omissions regarding his conduct before those acts and omissions become a subject matter of criticism. There must be some foundation and acute necessity appearing in the case to pass such remarks against any individual or a group of persons and in the absence of such dire situation the magistrate should have done well by getting slow in the matter.
8. The learned magistrate appears to have picked up the name of the petitioner from the statements of two witnesses, namely, Mukesh Kumar Saxena, Town Inspector and Udalsingh, Head-Constable (P.Ws.3 and 4) respectively. It must be mentioned here that the learned Magistrate himself found the statement made by these witnesses to be unreliable and their conduct shaky and found them liable to condemnation. Under these circumstances, if such witnesses referred the name of a stranger, like the petitioner, unconnected and unsupported by the record of the case, the learned Magistrate ought not to have acted on that reference and ought to have restrained himself from observing against such a stranger. The observations made by their Lordships of the Supreme Court in State of U.P. v. Mohd. Nairn, AIR 1965 SC 703 may be reproduced with profit:
“If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this 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. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised 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 recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”
9. Following the dictum of Supreme Court, the High Court of Karnataka in Govindraj Shetty v. State of Karnataka, 1980 Cri. LJ. 379 observed:
“Any remark passed by the Court against a person whereby he is a party in the proceedings or not, should be passed only after giving the said party an opportunity to meet the same. In other words, the principles of natural justice demand that a party should be heard before any remarks are made against him. This is much more so, in case, where disparaging remarks are made by the Court, that too, against a responsible officer like an Investigating Officer. The Court should be fully satisfied that such remarks are called for and, on the other hand that the conduct of the Investigating Officer was such that the Court was compelled to make such remarks in the interest of justice. Therefore, the Court has to be slow before passing any remarks and has to arm itself with all the available materials and with sufficient backgrounds including one of hearing the party against whom the Court wants to pass remarks. This procedure is not followed. In my view, the Court should not be justified in passing remarks at random behind the back of the person which would prejudice him. This appears to be the cardinal principle that has to be followed by a Court of law.”
10. In the instant case, the remarks having been made in the judgment behind the back of the petitioner without affording him an opportunity of hearing, deserve to be expunged, as they are offending and hurting, uncalled for, unjust and are likely to affect his future career adversely. The further direction of the learned Magistrate to sending the copy of the order with such remarks to his superiors, amounts to an unpassed punishment and cannot be sustained as such remarks would lead to hazardous consequences, not only with regard to his character, but also with regard to his tenure in profession-service etc.
11. It is essential for the administration of justice that proper freedom and independence is allowed to judges and magistrates and they be allowed to perform their functions freely and fearlessly but at the same tune it is equally necessary that in expressing their opinions, they be guided by considerations of justice, fair play and restraint. The provisions of Section 482, Criminal Procedure Code have been enacted to meet such contingencies in appropriate cases. The power to expunge remarks is no doubt an extraordinary power but nonetheless it does exist for redressing a kind of grievance for which the statute provides no remedies in express terms and the Court would be failing in its duties if in appropriate cases by exercising inherent powers the wrong done is not corrected.
12. Since for the present, I am required to dwelve upon the case of petitioner alone, I find that the deletion of the name of the petitioner from the remarks, or, as claimed, expunction, will in no way either affect or cripple the judgment or change its character.
13. In the result, the petition is allowed. It is ordered that the name of the petitioner, appearing as “C.S.P. Rana” in the concluding paragraph of the impugned judgment be deleted. This direction in effect would mean that the remarks made against the petitioner are expunged.