Full Judgment Text
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 9
PETITIONER:
THE STATE OF UTTAR PRADESH
Vs.
RESPONDENT:
MOHAMMAD NAIM
DATE OF JUDGMENT:
15/03/1963
BENCH:
DAS, S.K.
BENCH:
DAS, S.K.
SARKAR, A.K.
WANCHOO, K.N.
GUPTA, K.C. DAS
CITATION:
1964 AIR 703 1964 SCR (2) 363
CITATOR INFO :
F 1972 SC1140 (8)
R 1975 SC1741 (12)
RF 1979 SC 87 (15A)
RF 1986 SC 819 (20)
E&R 1987 SC 294 (42,48)
R 1987 SC1436 (14)
ACT:
High Court-Inherent power in criminal cases-Remarks in
Judgment-Duty of Judges-Expunging remarks--Power of High
Court-State Government, if can apply-Code of Criminal
Procedure, 1898 (Act V of 1898), 8. 561-A.
HEADNOTE:
While disposing of a criminal appeal the High Court directed
the issue of a notice to N, the investigating officer, to
show cause why a complaint should not be instituted against
him under s. 195, Indian Penal Code. N appeared and threw
himself at the mercy of the Court and asked for forgiveness.
The High Court accepted the apology hesitatingly but made
the following among other remarks against the police force.
"(a) if I had felt that with my lone efforts
I could have cleaned this augean stable, which
is the police force, I would not have
hesitated to wage this war single handed.
(b) That there is not, a single lawless
group in the whole of the country whose record
of crime comes anywhere near the record of
that organised unit which is known as the
Indian Police Force.
(c) Where every fish barring perhaps a few
stinks, it is
idle to pick out one or two and say that it
stinks."
The State applied to the High Court under s.
561-A, Code
of Criminal Procedure, for expunging these
remarks from the
364
judgment, but the application was dismissed on the grounds
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 9
that the State was not an aggrieved party and had no locus
standi to make the application under s. 561-A and that there
were no good grounds for expunging the remarks from the
judgment. On appeal by special leave from the order of the
High Court.
Held, allowing the appeal, that the State Government was an
aggrieved party and was entitled to move the High Court
under s. 561-A for the expunction of the remarks in
question. The State Government is the authority which
exercises the executive power of the State, and the police
department is one of its departments through which its power
as respects law and order is exercised. The State
Government can be aggrieved by observations made against
its department or officers. The State is a juristic person
and is entitled to move an application under s. 561-A. The
Code itself contemplates the filing of appeals and
applications by the State as a party.
Section 561-A did not confer any new power upon the High
Courts but merely preserved their existing inherent powers.
The High Court can, in the exercise of its inherent
jurisdiction, expunge remarks made by it or by a lower court
if it be necessary to do so to prevent an abuse of the
process of the Court or otherwise to Secure the ends of
justice. The jurisdiction is of an exceptional nature and
has to be exercised in exceptional cases only.
Jairam Das v. Emperor, A. I. R. (1945) P C. 94 and Emperor
v. Nazir Ahmad A. I. R. (1945) P. C. 18, referred to.
Emperor v. Ch. Mohd. Hassan, A. I. R. (1943) Lah. 298,
State v. Chhotey Lal, 1955 A. L. J. 240, Lalit Kumar v. S.
S. Bose, A. 1. R. 1957) All. 398, S. Lal Singh v. State, A.
1. R. (1959)Punj. 211 Ramsagar Singh v. Chandrika Singh, A.
I.R. (1961)Pat. 364 and In re Ramaswami, A. I. R. (1958)
Mad. 305, approved.
State v. Nilkanth Shripad Bhave, I. L. R. 1954 Bom. 148,
disapproved.
It is a principle of cardinal importance in the administra-
tion of justice that the power, freedom of judges and Magis-
trates must be maintained and they must be allowed to
perform their functions freely and fearlessly and without
interference by any body, even by the Supreme Court. It is
equally necessary that in expressing their opinions judges
and Magistrates must
365
be guided by considerations of justice, fair-play and
restraint. judicial pronouncements must be judicial in
nature, and should not normally depart from sobriety,
moderation and reserve. The remarks in the judgment in
respect of the entire police force of the State were not
justified on the facts of the case, nor were they necessary
for the disposal of the case and should have been expunged.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 81 of
1962.
Appeal by special leave from the judgment and order dated
October 23, 1961 of the Allahabad High Court (Lucknow Bench)
at Lucknow in Criminal Misc. Case No. 348/1961.
C. B. Agarwala, G. C. Mathur, Shankar Sahai and C. P. Lal,
for the appellant.
J. P. Goyal for the Hon’ble Chief,, justice and his
companion judges of the Allahabad High Court (on notice).
1963. March 15. The judgment of the court was delivered by
S. K. DAS J.-This is an appeal by special leave, and it
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 9
Presents some unusual features. The short facts are these.
The Additional Sessions judge of Hardoi in the State of
Uttar Pradesh tried Zafar Ali Khan and three other persons
on charges under ss. 452 and 307 read with s. 34, Indian
Penal Code. The case against the aforesaid accused persons
started on a first information report lodged at a police
station called Shahabad, purporting to have been so lodged
at about 3.30 A. M. by one Farasat Ali Khan on the night
between the 7th and 8th November, 1958. The case was
investigated by one Mohammad Naim who was then the Station
Officer of Shahabad police station. The learned Additional
Sessions judge convicted the accused persons though he
found,
366
on the evidence given in the case, that it was more probable
that the first information was lodged at the police station
at about 7 or 8 A.m. rather than at 3.30 A. M. From the
conviction and sentences passed by the Additional Sessions
judge there was an appeal to the High Court at Allahabad
(Lucknow Bench). This appeal was heard by Mulla J. He found
that Mohammad Naim had dressed’ up a totally unbelievable
case which destroyed the evidentiary value of the statements
of Farasat Ali and his wife, Ummati Begum, two of the
principal witnesses for the prosecution. The Learned judge
allowed the appeal and set aside the conviction and
sentences of the four appellants before him. The learned
judge further observed in his judgment:
"There is ample evidence to prove that the
first information report in this case was not
lodged at 3.30 A. M. This is also the finding
of trial court. The time noted in the first
information report is, therefore, a fictitious
time and a fabrication has been made in the
public records. I, therefore, direct the
office to issue a notice to Sri Mohammad Naim
as to why a complaint should not be instituted
against him by this court under section 195 I.
P. Code."
In pursuance of the direction given by the learned Judge,
Mohammad Naim was given a notice to show cause why a
complaint for an offence under s. 195 Indian Penal Code
should not be made against him for fabricating the first
information report in respect of the time at which it was
said to have been lodged. Mohammad Naim appeared before the
learned judge and threw himself at the mercy of the court
and asked for forgiveness. The learned Judge dealt with the
Matter in Cr. Mis. Case No. 87 1961. He accepted the
apology of Mohammad Naim, but said that he did so very
hesitatingly. In the course of his order accepting
367
the apology of Mohammad Naim he made certain observations.
We may now quote those observations :-
"I issued the notice because I want to clean
the public administration as for as possible
but an individual’s efforts cannot go very
far. If I had felt that with my lone efforts
I could have cleaned this augean stable, which
is the police force, I would not have
hesitated to wage this war single-handed. I
am on the verge of retirement and taking such
steps for two months or three months more
would not make any difference to the
constitution and the character of the police
force...... Somehow the police force in
general, barring few exceptions, seems to have
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 9
come to the conclusion that crime cannot be
investigated and security cannot be preserved
by following the law and this can only be
achieved by breaking or circumventing the law.
At least the traditions of a hundred years
indicate that this is what they believe.
If this belief is not rooted out of their
minds, there is hardly any chance of
improvement............ I say it with all
sense of responsibility that there is not a
single lawless group in the whole of the
country. whose record of crime comes anywhere
near the record of that organised unit which
is known as the Indian Police Force. If the
Police Force must be manned by officers like
Mohmmad Naim then it is better that we tear up
our Constitution, forget all about democracy
and the rights of citizens and change the
meaning of law and other terms not only in our
penal enactments but also in our dictionaries.
It is for these reasons that I am accepting
this apology and not filing any complaint
368
against Mohmmad Naim. Where every fish
barring perhaps a few stinks, it is idle to
pick out one or two and say that it stinks. 1,
therefore, discharge the notice issued against
Shri Mohmmad Naim."
The State of Uttar Pradesh felt aggrieved by some of the
aforesaid observations and made an application under s. 561-
A Code of Criminal Procedure for expunging them. The
observations in respect of which the State of Uttar Pradesh
felt aggrieved were grouped under heads (a), (b) and (c) in
paragraph 4 of the petition which we may now set out here :
(a) "If I had felt that with my lone efforts
I could have cleaned this augean stable, which
is the police force, I would not have
hesitated to wage this war singlehanded."
(b) "That there is not a single lawless
group in the whole of the country whose record
of crime comes anywhere near the record of
that organised unit which is known as the
Indian Police Force."
(c) "Where every fish barring perhaps a few
stinks, it is idle to pick out one or two and
say that it stinks."
The main ground which the State of Uttar Pradesh urged in
support of their petition was that "the observations over
the entire police force, bring the same into contempt, lower
its prestige in the eyes of mankind, have a tendency to
interfere with the’ administration of the country and injure
the security of the State." The State further alleged that
the observations made were not a necessary part of, and
could well be separated from, the main
369
order of the learned judge on the notice issued to Mohmmad
Naim and that there was no evidence in the record of any
kind upon which those observations could be based.
Mr. justice Mulla heard the application and came to the
following main conclusions :-
(1) That the State of Uttar Pradesh was not an aggrieved
party and had no locus standi to make an application under
s. 561-A Code of Criminal Procedure in respect of the
observations made.
(2) The observations required only one clarification
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 9
namely, that they were made in respect of the police force
of Uttar Pradesh and not of the whole country.
(3) The observations made under (a) above would have been
expunged, if the aggrieved party had approached the learned
Judge.
(4) As to the rest of the observations, there were no good
grounds for expunging them because they were based upon the
learned Judge’s personal knowledge and experience and did
not contain any over statements.
He accordingly dismissed the application of the State. The
State then moved the High Court for a certificate of fitness
under Art. 134(1) (c) of the Constitution of India and being
unsuccessful there, asked for special leave of this court
under Art. 136 of the Constitution. This court granted
special leave on April 12, 1962. The present appeal has
been preferred from the order of the learned judge rejecting
the application under s. 5(31-A Cr. P. C., in pursuance of
the leave granted by this court.
The first point which falls for consideration is whether the
State of Uttar Pradesh had locus standi
370
to make the application under s. 561-A Cr. P. C. We may
first read the section :
"Nothing in this Code shall be deemed to limit
or affect the inherent power of the High Court
to make such orders as may be necessary to
give effect to any order under this Code, or
to prevent abuse of the process of any Court
or otherwise to secure the ends of justice."
It is now well settled that the section confers no new
powers on the High Court. It merely safeguards all existing
inherent powers possessed by a High Court necessary (among
other purposes) to secure the ends of justice. The
section provides that those powers which the
court inherently possesses shall be preserved lest it be
considered that the only powers possessed by the -court are
those expressly conferred by the Code and that no inherent
powers had survived the passing of the Code (see Jairam Das
v.Emperor (1), and Emperor v. Nazir Ahmad (2)), We shall
presently deal with the question whether the High Court has
inherent power to expunge the remarks made by it or by a
lower court to prevent abuse of the process of any court or
otherwise to secure the ends of justice. Assuming that the
High Court has such power, the question now before us is,
can the State Government invoke this inherent jurisdiction
of the High Court? The learned judge of the High Court gave
two reasons for his finding that the State Government had no
locus standi to make an application under s. 561-A Cr. P.
C. The first reason he gave was that the State Government
could not be said to have been aggrieved by the observations
made by him. The second reason he gave was that the State
represented the executive as well as the judiciary and
therefore it would be anomalous if it made an application
under s. 561-A Cr. P. C., for such an application would be
by the State through its executive to expunge remarks made
by it as the judiciary.
(1) A.I.R. (1945) P.C. 94.
(2) A.T.R. (1945) P.C. 18.
371
We do not think that any of these two grounds is tenable.
Under Art. 154 of the Constitution the executive power of
the State is vested in the Governor and shall be exercised
by him either directly or through officers subordinate to
him. The expression "State Government" has a meaning
assigned to it under the General Clauses Act, 1897 (X of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 9
1897). Briefly stated, it means the authority or person
authorised at the relevant date to exercise executive
government in the State, and after the commencement of the
Constitution, it means the Governor of the State. It is not
disputed that the police department is a department of the
State Government through which the executive power of the
State as respects law and order is exercised. If the State
Government considers that the observations made by a court
in respect of a department or officers through whom the
State Government exercises its executive powers are such as
require invoking the inherent power of the High Court under
s. 561 -A Cr.P. C., it is difficult to see why the State
Government cannot be considered to be the party aggrieved by
such observations. Furthermore, it is not disputed that the
State is a juristic person. The Code of Criminal Procedure
itself recognises in some of its provisions the rights of
the State Government; such as, the right to give sanction
and to move the court for necessary action etc. the State
Government being the authority or person authorised to
exercise executive Government at the relevant date. Some of
these provisions are contained in ss. 144 (6), 190 (2), 190
(3), 196, 196-A, 197 etc. of the Code. One outstanding
example is furnished by s. 417 of the Code which gives to
the State Government a right of appeal to the High Court
from an original or appellate order of acquittal passed by
any court other than a High Court. It is also not disputed
that the State Government may invoke the revisional
jurisdiction of the High Court under s. 439 of the Code,
though that section is general in its terms and does not
specifically
372
mention the State Government. Therefore, we fail to see why
the State Government cannot make an application under s.
561-A. We see nothing anomalous in the State Government
moving the court for redress when it feels aggrieved by
remarks made against it, The State Government may make an
application to the High Court under s. 561-A in the same way
as it may direct the Public Prosecutor to present an appeal
on its behalf to the High Court under s. 417 or may invoke
through one of its officers the jurisdiction of the High
Court under s. 439 of the Code. We have, therefore, come to
the conclusion that the finding of the learned judge that
the State Government has no locus standi to make the appli-
cation under s. 561-A Cr. P.C. is erroneous in law. Our
attention was drawn to some cases where the State Government
made such applications in a pending appeal. No question was
however raised therein whether the State Government had
locus standi to make the applications; therefore, we have
thought fit to decide the point on principle rather than on
cases where such applications were made.
The second point for consideration is this, has the High
Court inherent power to expunge remarks made by itself or by
a lower court to prevent abuse of the process of any court
or otherwise to secure the ends of justice ? There was at
one time some conflict of judicial opinion on this question.
The position as to case-law now seems to be that except for
a somewhat restricted view taken by the Bombay High Court,
the other High Courts have taken the view that though the
jurisdiction is of an exceptional nature and is to be
exercised in most exceptional cases only, it is undoubtedly
open to the High Court to expunge remarks from a judgment in
order to secure the ends of justice and prevent abuse of the
process of the court lsee Emperor v. Ch. Mohd. Hassan (1);
State v. Chhotay Lal (2); Lalit Kumar v. S. S. Bose (1);
S.Lal Singh v. State
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 9
(1) A.I.R. (1943) Lah. 298.
(2) 1955 A.L.J. 240.
(3) A.I.R. (1957) All. 398.
(4) A.I.R. (1959) Punj. 211.
373
Ram Sagar Singh v. Chandrika Singh (1); and In re Ramaswami
(2) The view taken in the Bombay High Court is that the High
Court has no jurisdiction to expunge passages from the
judgment of an inferior court which has not been brought
before it in regular appeal or revision; but an application
under s. 561-A Cr. P. C. is maintainable and in a proper
case the High Court has inherent jurisdiction, even though
no appeal or revision is preferred to it, to correct
judicially the observations made by pointing out that they
were not justified, or were without foundation, or were
wholly wrong or improper I see State v. Nilkanth Shripad
Bhave (3). In State of U. P. v. J. N. Bagga (4), this court
made an order expunging certain remarks made against the
State Government by a learned Judge of the High Court of
Allahabad. The order was made in an appeal brought to this
court from the appellate judgment and order of the Allahabad
High Court. In State of U. P. v. Ibrar Hussain (5), this
court observed that it was not necessary to make certain
remarks which the High Court made in its judgment. Here
again the observation was made in an appeal from the
judgment and order of the High Court. We think that the
view taken in the High Courts other than the High Court of
Bombay is correct and the High Court can in the exercise of
its inherent jurisdiction expunge remarks made by it or by 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.
In fairness to learned counsel for the appellants we may
state here that he has submitted before us that the State
Government will be satisfied if we either expunge the
remarks or hold them to be wholly unwarranted on the facts
of the case. He has submitted that the real purpose of the
appeal is to remove the stigma which has been put on the
police force of the entire
(1) A.I.R. (1961) Pat. 364. (2) A.I.R. (1958) Mad, 303.
(3) I.L.R. 1954 Bom. 148. (4) judgment in Cr. A.
122/1959
of thiscourt decided on January 16 1961.
(5) Judgment of this court in Cr. As. 148/)957 and 4 of
1958 decided on April 28, 1959.
374
State by those remarks the truth of which it had no
opportunity to challenge.
The last question is, is the present case a case of an
exceptional nature in which the learned judge should have
exercised his inherent jurisdiction under s. 561-A Cr. P.
C. in respect of the observations complained of by the State
Government ? 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 any body, 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, fairplay 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
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 9
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.
In the case before us the learned judge chose to make
sweeping and general observations against the entire police
force of the State. The case before him related to only one
police officer, Mohammad Naim, about whose conduct the
learned judge was
375
undoubtedly justified in making adverse remarks. The
learned Judge himself realised that the remarks which he had
made were much too general and sweeping in character,
because in his later order he said that the remarks were
meant for the police force in Uttar Pradesh only and he
further said he would have expunged the remarks under the
head (a) referred to earlier, if the party aggrieved had
come before him. We consider that the remarks made by the
learned judge in respect of the entire police force of the
State were not justified on the facts of the case, nor were
they necessary for the disposal of the case before him. The
learned judge conceded that the general remarks he made were
not based on any evidence in the record; he said that he
drew largely from his knowledge and experience at the Bar
and on the Bench. Learned counsel for the appellant has
very frankly stated before us that the learned judge has had
very great experience in the matter of criminal cases, and
was familiar with the method of investigation adopted by the
local police. He has contended, however, that it was not
proper for the judge to import his personal knowledge into
the matter. We do not think that in the present case we
need go into the question as to the extent to which a judge
or Magistrate may draw upon his experience in assessing or
weighing evidence or even in judging the conduct of a
person. We recognise the existence of exceptional
circumstances in a case where the judge or Magistrate may
have to draw upon his experience to determine what is the
usual or normal conduct with regard to men and affairs. We
say this with respect, but it appears to us that in the
present case even allowing’ for the great experience which
the learned judge had in the matter of criminal trials, his
statement that "there was not a single lawless group in the
whole country whose record of crime came anywhere near the
record of that organised unit which is known as the Indian
Police Force" was wholly unwarranted and,
376
if we may say so, betrayed a lack of judicial approach and
restraint. The learned judge referred to no material on
which this observation was based, nor did he say that his
experience of criminal trials gave him an occasion to
compare the records of crime of various lawless groups in
the State vis-a-vis the Police Force. To characterise the
whole Police Force of the State as a lawless group is bad
enough ; to say that its record of crime is the highest in
the State is worse and coming as it does from a Judge of the
High Court, is sure to bring the whole administration of law
and order into disrepute. For a sweeping generalisation of
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 9
such a nature, there must be a sure foundation and the
necessity of the case must demand it. We can find neither
in the present case. We think that the State Government was
justifiably aggrieved by such a sweeping remark. Similar in
nature is the remark about the stinking of "every fish in
the police force barring, perhaps, a few." The word
"perhaps" seems to indicate that even about the few, the
learned judge had some doubt. We consider that these
sweeping generalisations defeat their own purpose. They
were not necessary for the disposal of the case against
Mohammad Naim. It would have been enough for the learned
judge to say that when a large number of police officers
were resorting to an objectionable method of investigation,
it was unnecessary to pick out one petty officer and
prosecute him for doing what several others had done with
impugnity, It was wholly unnecessary for the learned judge
to condemn the entire police force and say that their record
of crime was the highest in the country. Such a remark
instead of serving the purpose of reforming the police
force, which is the object the learned judge says he had in
mind, is likely to undermine the efficiency of the entire
police force. We think that in his zeal and solicitude for
the reform of the police force, the learned judge allowed
himself to make these very unfortunate remarks which
defeated
377
the very purpose he had in mind. Having said all this, we
must add, lest we be misunderstood, that the conduct of
Mohammad Naim and officers like him deserves the severest
condemnation, and the learned judge rightly observed that
such conduct required very serious notice by superior
officers of the Police. It is difficult to avoid the
reflection that unless an example is made of such officers
by taking the most stringent action against them, no
improvement in police administration is possible.
For the reasons given above, we have come to the conclusion,
a conclusion which justice demands, that the present case is
one of those exceptional cases where the inherent
jurisdiction of the court should have been exercised and the
remarks earlier referred to as (a), (b) and (c) should have
been expunged. We accordingly allow the appeal and direct
that the aforesaid remarks do stand expunged from the order
of the learned judge dated August 4, 1961.
Appeal allowed.,
378