Full Judgment Text
IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment delivered on:07.02.2025
+ CRL.M.C. 4930/2022 & CRL.M.A. 19773/2022
STATE (NCT OF DELHI) …..Petitioner
versus
NILESH MISHRA …..Respondent
+ CRL.M.C. 4947/2022 & CRL.M.A. 19802/2022,CRL.M.A.
22804/2022
STATE (NCT OF DELHI) …..Petitioner
versus
VIJAY PAL @ RAJEEV VERMA
& ANR. …..Respondents
+ CRL.M.C. 5780/2022 & CRL.M.A. 22732/2022
STATE (NCT OF DELHI THR. THE DEPUTY
COMMISSIONER OF POLICE (CRIME I) …..Petitioner
versus
VIJAY PAL @ RAJEEV VERMA
& ANR. …..Respondents
+ CRL.M.C. 5979/2022 & CRL.M.A. 23470/2022
STATE (NCT OF DELHI) THROUGH THE
DEPUTY COMMISSIONER OF DELHI
POLICE (CRIME-I) …..Petitioner
versus
RAHUL @ AMIT SHARMA
Signature Not Verified
Signed By:HARMINDER
KAUR
Signing Date:13.02.2025
18:07:41
CRL.M.C. 4930/2022& Connected Matters Page 1 of 25
@ AMIT PANDIT …..Respondent
+ CRL.M.C. 6801/2022 & CRL.M.A. 26366/2022,CRL.M.A.
2161/2023, CRL.M.A. 3677/2023
STATE (NCT OF DELHI) THROUGH THE
DEPUTY COMMISSIONER OF POLICE
(CRIME-I) …..Petitioner
versus
NILESH MISHRA …..Respondent
Advocates who appeared in this case:
Present: Mr. Sanjeev Bhandari (Adv.) ASC (Criminal) forthe State
along with Ms. Charu Sharma, Mr. ArjitSharma, Mr.
Vaibhav Vats & Mr VikunjBindal,Advs.
SI Shailendra Tiwari, ER-II/Crime Branch.Insp. Amit
Prakash, AEKC / Crime
SI Amit Kumar, ISC / Crime Branch
CORAM
HON’BLE MR JUSTICE AMIT MAHAJAN
JUDGMENT
1. The present petitions are filed seeking expunction/deletion of
the remarks/observations/strictures issued by the learned Chief
Metropolitan Magistrate, North East District, Karkardooma Courts,
Delhi vide orders dated 12.08.2022, 12.09.2022, 02.11.2022 in CR
Case No. 3350/2022, orders dated 04.07.2022, 04.08.2022, and
21.09.2022, 28.10.2022 in CR Case No. 466247/2015, orders
dated08.09.2022 and 14.10.2022 in CR Case No. 214/2021.
Signature Not Verified
Signed By:HARMINDER
KAUR
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CRL.M.C. 4930/2022&CRL.M.C. 6801/2022
2. By way of the captioned petitions, the State challenges the
orders dated 12.08.2022, 12.09.2022, 02.11.2022 passed by the
learned Trial Court in CR Case No. 3350/2022.
3. The FIR in this case being FIR No. 159/2020 dated 17.10.2020
was registered under Sections 420/468/471/120B of the Indian Penal
Code, 1860 (‘ IPC ’) and Section 3 of the Emblems and Name
(Prevention of Improper Use) Act, 1950. Cognizance of the offence
was taken under Sections 420, 468, 471, 201, 120B of the IPC and
Section 5 of the Emblems and Names (Prevention of Improper Use)
Act, 1950.
4. The FIR was registered on an allegation that the accused
persons, on the pretext of selling a rice-puller, had cheated the
complainant of several lakhs of rupees.
5. The learned Trial Court vide order dated 12.08.2022 dismissed
the bail application filed by the respondent. The learned Trial Court
noted that the respondent had not disclosed about the filing and
disposal of the previous bail applications. It was noted that the
allegations against the respondent were serious in nature and involved
cheating of several lakhs of rupees. While dismissing the bail
application, the learned Trial Court also made certain observations
pertaining to the conduction of the investigation and the arrest of the
accused and non-arrest of the other accused persons as under:
“ It appears that the police at Crime Branch acted as recovery
agents of the victims. Whoever returned money was not arrested
and since accused Nilesh Mishra did not pay up, he was arrested
by the police. It seems that the Crime Branch is not aware of the
considerations it should have while determining if the accused
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KAUR
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should be arrested, as has been enunciated by the Hon’ble
Supreme Court in various cases.
Also, when the IO was questioned, if he had taken steps for
obtaining non-bailable wan-ants and process under Section 82
Cr.PC against the accused persons who as per him were
absconding and whose addresses are known to the Police, the way
he did it qua the accused Siraj Malik, he has replied in the
negative.
It is evident that the Police at Crime Branch exercised their
discretion of treatment towards the various accused persons
arbitrarily. As per the 10, several other accused persons including
Akash Rana, Gurusharan Singh Chauhan, Manoj Sharma, Jaisim
Ansari and Parvinder Kohli had also received the cheated amount,
the way Nilesh Mishra did. As per the 10, the addresses of atleast
some of them are known to the Police. The Police took steps for
declaring accused Siraj Malik as a proclaimed offender, but took
no such steps towards other accused persons who as per Police
were absconding.
If they were not absconding, for reasons best known only to the
Crime Branch, they were not arrested. Whether to arrest an
accused or not is a discretionary power of the Police. However,
this discretion should not be exercised arbitrarily.
Since the exercise of discretion by the Police in the present case
appears to have been arbitrarily done, it is the duty of the Court to
bring it to the notice of Senior Police Officers.
Issue notice to the Special Commissioner of Police, Crime Branch
with direction to examine the reasons for which the Police chose
not to arrest accused persons other than the accused Nilesh Mishra
and if those other accused persons have been absconding, the
reasons why steps were not taken for initiating proceedings for
declaring those accused persons as proclaimed offenders.
Copy of this order be sent alongwith the notice.
Action taken by the Special Commissioner of Police, be intimated
to this Court on the date already fixed i.e. 12.09.2022. ”
6. The learned Trial Court vide order dated 12.08.2022 made
certain observations pertaining to the arrest and non-arrest of the
accused persons and the manner in which the investigation was carried
out by the investigating agency. Further, notice was also issued to the
Special Commissioner of Police with direction to examine the reasons
for which the police chose not to arrest the accused persons other than
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Signed By:HARMINDER
KAUR
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the respondent. On the next date of hearing, that is, 12.09.2022 the
learned Trial Court made the following remarks:
“At the outset, it is observed that when the Court directs a Police
Officer to file a report, it is him who has to file it and if he does
not, that amounts to non-compliance of the Court order, which is
supposed to have consequences.
Even the report of the DCP Crime Branch does not disclose if the
Special Commissioner conducted an enquiry to determine if there
was indeed arbitrary exercise of discretion and if yes, what action
has been taken against the delinquent police officers.
If the Special Commissioner of Police was of the opinion that there
was no arbitrary exercise of discretion and therefore, there is no
need to take any action against any Police Officer, this ought to
have been mentioned in the report. It appears that the Police
Officers involved in the investigation of the present case have the
protection of Senior Police Officers in the rank of Special
Commissioner of Police.
Issue notice to the Special Commissioner of Police, Crime Branch
with direction to disclose why action be not taken against him for
non-compliance of Court order. Copy of this order be sent
alongwith the notice.
Issue notice to the Commissioner of Police with direction to
examine the reasons for non-compliance of the Court direction
given to the Special Commissioner of Police.
Since the Special Commissioner of Police has failed to comply with
the Court order, now the Commissioner of Police will comply with
the directions which were earlier given to the Special
Commissioner of Police. He shall examine the reasons for which
the Police chose not to arrest accused persons other than the
accused Nilesh Mishra and if other accused persons have been
absconding, the reasons why steps were not taken for initiating
proceedings for declaring those accused persons as proclaimed
offenders.
The Commissioner shall keep in view the observations made by the
Court in the order passed on the last date of hearing. Copy of this
order and of the order passed on the last date of hearing be sent
alongwith the notice.
xxx xxx xxx
To come up for report of the DCP, reply of Special Commissioner
of Police, report of the Commissioner of Police and for scrutiny of
documents on 28.09.2022.”
Signature Not Verified
Signed By:HARMINDER
KAUR
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7. The learned Trial Court vide order dated 12.09.2022 observed
that contrary to the direction of the Court, the Special Commissioner
of Police did not submit any report on the discretion exercised by the
Police while carrying out the investigation. It was noted that a report
under the signatures of the DCP Crime Branch had been received
which stated that the report had been filed with the approval of the
Special Commissioner of Police. Subsequently, notice was issued to
the Special Commissioner of Police with direction to disclose why
action be not taken against him for non compliance of the Court order.
Further, notice was also issued to the Commissioner of Police with
direction to examine the reasons for non-compliance of the Court
direction given to the Special Commissioner of Police.
8. Being aggrieved by the orders dated 12.08.2022 and
12.09.2022, State had filed CRL.M.C. 4930/2022. The learned ASC
for the State sought a period of four weeks for the purpose of filing the
reply through the DCP concerned after bringing the same to the notice
of the Commissioner of Police. Consequently, this Court vide order
dated 27.09.2022 granted 4 weeks to file reply before the learned Trial
Court through the concerned DCP after bringing the same to the notice
of the Commissioner of Police with respect to the
observations/concerns raised by the learned Trial Court.
Consequently, on 22.10.2022, a status report under the signatures of
the DCP, and approved by the Commissioner of Police, Delhi was
filed before the learned Trial Court.
9. Subsequently, the learned Trial Court vide order dated
02.11.2022 made certain remarks as under:
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KAUR
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“It was way back on 12.08.2022 that this Court had brought to the
notice of the Special Commissioner of Police that the discretion on
whether to arrest certain accused persons or not may have been
arbitrarily exercised by the police.
The Special Commissioner was directed to make an enquiry in this
regard and also directed to examine the reasons for not initiating
proceedings for declaring the absconding accused persons as
proclaimed offenders even though the police always had their
addresses.
This direction of the Court was not complied with by the Special
Commissioner and therefore, on the next date of hearing i.e.
12.09.2022, this Court gave direction to the Commissioner of
Police for making an enquiry as was directed on 12.08.2022.
ln view of order dated 27.09.2022 passed by the Hon’ble High
Court in the present case, the DCP has filed an undated report on
behalf of the Commissioner of Police.
xxx xxx xxx
From the report of the DCP, it is evident that the documentary
evidence available against accused Gursharan Singh, Harish
Verma and Javed Ali @ Sajid Ali @ Akash Rana @ Sameer is
similar to what was available against the accused Nilesh Mishra.
However, only accused Nilesh Mishra was arrested and for
unknown reasons, these three accused persons have not been
arrested by the Police.
When this Court brought to the notice of the Special Commissioner
of Police and the Commissioner of Police that the discretion with
regard to arrest of accused persons has been arbitrarily exercised
by the Police, these Senior Police Officers agreed with the
observations of the Court and therefore, transferred investigation
to another police officer and issued show cause notice to the
earlier 10 and advisory to the earlier ACP. However, the report of
the Commissioner does not disclose why other accused persons
who as per the report of the DCP himself are similarly placed as
accused Nilesh Mishra have not been arrested even by the new
investigating officer.
In the report of the DCP, he has stated that investigation is being
conducted by the new IO SI Ram Kumar under the supervision of
ACP, AEKC and overall supervision of the said DCP. On asking by
the Court, IO has admitted that no steps have been taken even after
dismissal of the anticipatory bail application of accused Sajid Ali
on 18. 10.2022, for arresting the accused Sajid Ali.
Even though it is stated in the report of the DCP that efforts are
being made for carrying out custodial investigation of the accused
Javed Ali, the Police has not done anything in atleast the last 15
days after dismissal of the bail application of Sajid Ali for
arresting the accused. It is evident that the purported supervision
Signature Not Verified
Signed By:HARMINDER
KAUR
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of ACP AEKC and of the DCP, Crime-1 is ineffective and perhaps
non-existent.
xxx xxx xxx
The investigation of the present case has been with the current
investigating officer for sufficient time for him to have obtained
non-bailable warrants against the accused persons who have been
absconding and whose addresses are available with the police.
Despite this, he has neither arrested accused Gursharan Singh,
Harish Verma and Javed Ali nor has he obtained non-bailable
warrants against them. This is despite the fact that the anticipatory
bail applications of these accused persons have been dismissed.
In view of the above observations, it is evident that the orders of
this Court and even of the Hon’ble High Court dated 27.09.2022
which directed that the matter be brought to the notice of
Commissioner of Police, have failed to get the desired effect and
further investigation is still not been carried out fairly.
It has already been observed by this Court in its order dated
12.08.2022 that it is conscious of the fact that it is the discretionary
power of the police to decide whether to arrest the accused or not.
However, this Court has already held that this discretion is not to
be exercised arbitrarily and since the exercise of discretion by the
Police in the present case appears to have been arbitrarily done, it
is the duty of the Court to bring it to the notice of Senior Police
Officers.
Issue fresh notice to the Commissioner of Police with direction to
ensure that further investigation in the present case is carried out
fairly and under the supervision of a competent senior police
officer.”
10. The State essentially seeks expunction of the aforementioned
remarks in the impugned orders dated 12.08.2022, 12.09.2022 and
02.11.2022 passed by the learned Trial Court.
CRL.M.C. 4947/2022&CRL.M.C. 5780/2022
11. By way of the captioned petitions, the State challenges the
orders dated 04.07.2022, 04.08.2022, 21.09.2022 and 28.10.2022
passed by the learned Trial Court in CR Case No. 466247/2015.
Signature Not Verified
Signed By:HARMINDER
KAUR
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12. The FIR in the captioned cases being FIR No. 305/2007 was
registered under Sections 411/468/471/34 of the Indian Penal Code,
1860 (‘ IPC ’).
13. During the course of prosecution evidence, a submission was
made by the learned Additional Public Prosecutor for the State that the
testimony of Retired SI Rajbir could not be recorded since the
vehicles, which were the subject matter of the theft, had not been
produced. The learned Trial Court vide order dated 04.07.2022 noted
that despite repeated directions, the case property had not been
produced. Consequently, the learned Trial Court made the following
remarks:
“Issue notice to the Commissioner of Police with direction to
ensure that either the vehicles which are subject matter of the
aforesaid three cases are produced or the photographs taken at the
time of releasing of vehicles are filed, positively on the next date of
hearing.”
14. Subsequently, on 04.08.2022, the learned Trial Court noted that
the photographs of the case property suffice for the purpose of
evidence during the course of examination of various witnesses.
However, no photographs had been filed. Consequently, the following
remarks were made by the learned Trial Court:
“No cogent reasons have been disclosed for not filing the
photographs. No enquiry has been conducted by the Commissioner
on why the photographs have not been found. It has not been
disclosed whether the photographs were even taken before
releasing the vehicles. Taking of photographs of the vehicles was
mandated not only by the Hon'ble High Court in the aforesaid case
of Manjit Singh, but also by the order of the concerned Magistrate
which directed release of vehicle to the owner subject to taking of
the photograph by the Investigating Officer.”
Signature Not Verified
Signed By:HARMINDER
KAUR
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15. A report was filed by the Commissioner of Police through the
concerned DCP on 24.08.2022. The learned Trial Court vide order
dated 21.09.2022 made the following remarks:
“On 04.07.2022, this Court gave certain directions to the
Commissioner of Police. However, these directions were not
complied with and therefore, by order dated 04.08 .2022, this
Court again issued notice to the Commissioner of Police giving
certain further directions.
For compliance of the directions given to the Commissioner by
orders dated 04.07.2022 and 04.08.2022, notices were directed to
be issued to the Commissioner of Police. However, no report from
the Commissioner of Police has been received till date.
Reports of relatively junior officers in the Police have been
received including one filed by the DCP, Crime-1, in which it is
stated that it is being filed “for Commissioner of Police.”
This Court has repeatedly observed in numerous cases that case
property is not being produced, specially in the cases investigated
by Crime Branch. Despite having brought this to the notice to
officers in the rank of DCP, the situation did not changed and
therefore, this Court deemed it fit to bring the matter to the notice
to the Commissioner of Police.
Despite issuance notices to the Commissioner of Police, the
Commissioner has not taken any action in this regard.
At the outset, before taking any further action for non-compliance
of the Court order, it must be ascertained if the Commissioner even
received the notices issued by this Court. If the Commissioner did
not even receive the notices, then this Court may not want to take
any action against the Commissioner for non-compliance of
directions.
Issue notice to the Commissioner of Police with direction to inform
this Court by the next date of hearing if he received notices that
were directed to be issued by this Court vide orders dated
04.07.2022 and 04.08.2022.
xxx xxx xxx
It is directed that the Commissioner of Police will also enquire as
to how the Police at PS Rajinder Nagar and PS Preet Vihar had
released the vehicles, without there been any such direction from
this Court .
16. In compliance with the order dated 27.09.2022 passed by this
Court in CRL. MC. 4947/2022, a status report dated 28.10.2022 was
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KAUR
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filed under the signatures of the DCP with the approval of the
Commissioner of Police.
17. The learned Trial Court vide order dated 28.10.2022 noted that
undisputedly the case property was seized and no order for the release
of the case property was passed. It was noted that despite no such
order being passed, the police chose to release the case property which
was being justified by stating that the same was the practise being
followed. Consequently, the learned Trial Court made the following
remarks:
“Issue notice to the DCP with direction to disclose details of all the
cases in which the Delhi Police adopted the illegal practice of
releasing the case property without seeking permission from the
Court in the case in which the case property was seized. The DCP
will also disc lose details of all the police officials involved in the
decision making and supervision of the illegal release of the case
property. In view of the order dated 27.09.2022 passed by the
Hon'ble High Court, the DCP will file his report after bringing it to
the notice of Commissioner of Police. Copy of this order be sent
along with the notice.”
18. The State seeks expunction of the remarks/strictures passed by
the learned Trial Court by the aforementioned orders dated
04.07.2022, 04.08.2022, 21.09.2022 and 28.10.2022 in CR Case No.
466247/2015.
CRL.M.C. 5979/2022
19. By way of the captioned petition, the State challenges the orders
dated 08.09.2022 and 14.10.2022 passed by the learned Trial Court in
CR Case No. 214/2021.
20. The FIR in this case being FIR No. 170/2020 dated 11.11.2020
was registered under Section 25 of the Arms Act, 1959.
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KAUR
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21. The learned Trial Court vide order dated 08.09.2022 noted that
the examination-in-chief of ASI Rahisuddin was partly recorded and
further testimony was deferred for want of case property. The learned
Trial Court noted that despite service of summons, the case property
had still not been produced. It was noted that on account of the non
production of the case property, the testimony of the witness again
could not be recorded on the date and that the witness would have to
be discharged un-examined.
22. The learned Trial Court also took note of multiple cases
wherein the Crime Branch had failed to produce the case property.
Consequently, the following remarks/observations were made:
“Despite the repeated directions given by this Court which has
evidently fallen on deaf ears of the Commissioner and the Special
Commissioner of Police, Crime Branch, case property has again
not been produced.
xxx xxx xxx
Issue notice to the Special Commissioner of Police with direction
to show cause why action be not taken against him for non-
production of case property and non-compliance of Court order.
Issue notice to the Commissioner of Police with direction to
disclose the action taken by the police on receiving the aforesaid
Court orders in which it was repeatedly noted that case property is
not been produced.”
23. Subsequently, a status report dated 06.10.2022 under the
signatures of the Special Commissioner of Police was filed to explain
the reason behind the non-production of the case property. The learned
Trial Court vide order dated 14.10.2022 recorded that the Special
Commissioner had filed his report, however, the same was not
complied with by the Commissioner of Police. Consequently, the
following observations were made by the learned Trial Court:
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KAUR
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“However, the Commissioner has not complied with the direction
of the Court and has not submitted his report. However, a report of
the DCP, Crime-1 has been received in which it has been stated
that the report is being filed with the approval of the Commissioner
of Police.
xxx xxx xxx
When the Commissioner of Police has been directed to file his
report, it is only him who is required to file report and only then
there will be compliance of the Court direction.
There is no direction of the Hon’ble High Court in the present case
that report can be filed by any other police officer after approval of
the Commissioner of Police. The relief granted to the Delhi Police
by the Hon’ble High Court in other cases cannot be granted by this
Court, that too when there is no such request made to this Court.
This Court cannot review its order and permit filing of reports by
an officer who is not authorized to do so.
Issue notice to the Commissioner of Police with direction to
disclose why direction of the Court has not complied with and why
action be not taken against him for non-compliance of Court
order.”
24. By way of this petition, the State seeks expunction of the
remarks/observations made by the learned Trial Court vide orders
dated 08.09.2022 and 14.10.2022 in CR Case 214/2021.
Submissions
25. The learned Additional Standing Counsel for the State
submitted that the learned Trial Court erred in making scathing
remarks/observations while passing the impugned orders. He
submitted that while administering justice, the learned Trial Court has
the liberty to observe on the inaction on the part of the investigating
authority after the conclusion of the trial.
26. He submitted that the learned Trial Court vide impugned orders
dated 12.08.2022 and 12.09.2022 in CR Case 3350/2022 issued
directions to the Commissioner of Police for taking action as directed
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KAUR
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by the order dated 12.08.2022 and submit action report. He submitted
that such direction to submit a report prejudges action/inaction on the
part of the investigating authority and other police officers.
27. He submitted that the Hon’ble Apex Court in a catena of
decisions has made observations that scathing remarks ought not to be
made. He relied upon the decision of the Hon’ble Apex Court in A M
Mathur v. Pramod Kumar Gupta and Others : (1990) 2 SCC 533 to
submit that judicial restraint should be exercised and intemperate
language should be avoided while passing judgements.
28. He further submitted that such remarks directing enquiry amidst
prosecution evidence would have the impact of prejudicing the entire
case of the prosecution.
29. He submitted that the learned Trial Court also made
observations/remarks regarding the arrest and non-arrest of the
accused persons. He submitted that the law is well settled on the
aspect that the power to arrest is within the discretion of the
investigating officer.
30. He submitted that in order to comply with the impugned orders,
certain reports under the signatures of the DCP with the due approval
of the Commissioner of Police were submitted before the learned Trial
Court. He submitted that the same was however not considered to be
compliance on the part of the Commissioner.
31. He submitted that remarks such as “ deaf ears of the
Commissioner” are derogatory in nature. He further submitted that
such scornful remarks would have a devastating impact on the career
of the Senior officers and subordinate staff. He consequently
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KAUR
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submitted that the such remarks/observations be expunged from the
impugned orders.
Analysis
32. From a perusal of the impugned orders, it is apparent that the
learned Trial Court has made the remarks in relation to the lapse on
the part of the investigating authority to preserve and produce the case
property or in relation to the manner in which the investigation was
conducted.
33. In CRL.M.C. 4930/2022 & CRL.M.C. 6801/2022, the learned
Trial Court was considering an application for grant of bail preferred
by the respondent. The FIR was registered on an allegation that the
accused persons, on the pretext of selling a rice-puller, had cheated the
complainant of several lakhs of rupees. While dismissing the bail
application of the respondent, the learned Trial Court vide order dated
12.08.2022 made certain observations pertaining to the 4 year delay in
the registration of the FIR, the delay in arrest of the accused. The
learned Trial court also made observations regarding the arrest and
non-arrest of the accused persons.
34. It was noted that appropriate steps were not taken to obtain
bailable warrants and for issuance of process under Section 82 of the
Code of Criminal Procedure, 1973 against those accused persons who
were absconding. The learned Trial Court also noted that while the
decision to arrest was discretionary in nature, such discretion should
not be exercised arbitrarily. Consequently, notice was issued to the
Special Commissioner of Police with direction to examine the reasons
for which the other accused persons were not arrested. Alternatively,
Signature Not Verified
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KAUR
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the Special Commissioner of Police was directed to examine why
steps had not been taken to initiate proceedings to declare the
absconding accused persons as proclaimed offenders.
35. A report was subsequently filed under the signatures of the DCP
with the approval of the Special Commissioner of Police. The learned
Trial Court vide order dated 12.09.2022 observed that the Special
Commissioner of Police failed to file any report. It was noted that
even the report filed by the DCP did not disclose if any enquiry was
conducted against the delinquent officers. The learned Trial Court then
went on to note that the Special Commissioner was bound to disclose
whether there was any arbitrary exercise of discretion which he failed
to do so. Consequently, a show cause notice was issued to the Special
Commissioner of Police for non-compliance with the Court order. A
notice was also issued to the Commissioner of Police with directions
to examine the reasons for non-compliance of the directions given to
the Special Commissioner of Police. The Commissioner of Police was
further directed to examine why the other accused persons were not
arrested, and had the other persons been absconding, why steps were
not taken to initiate proceedings to declare such accused persons as
proclaimed offenders.
36. Subsequently, a status report dated 22.10.2022 was filed by the
DCP with the approval of the Commissioner of Police The learned
Trial Court vide order dated 02.11.2022 noted that despite the transfer
of investigation to a new police officer, other accused persons were
not arrested. Observations were made in regard to the arbitrary
exercise of discretion in relation to the arrest of the accused persons.
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Further, fresh notice was issued to the Commissioner of Police with
direction to ensure that further investigation in the matter is carried out
fairly and under the supervision of a competent senior police officer.
37. In CRL.M.C. 4947/2022 & CRL.M.C. 5780/2022, while at the
stage of evidence, the learned Trial Court noted that the vehicle, that
was subject matter of theft, had not been produced despite repeated
instructions. Consequently, vide order dated 04.07.2022, the learned
Trial Court issued notice to the Commissioner of Police to ensure that
either the vehicle which formed the subject matter of three cases or the
photographs taken at the time of release be filed.
38. Subsequently, vide order dated 04.08.2022, the learned Trial
Court noted that the photographs had still not been filed.
Consequently, it was noted that no cogent reasons had been disclosed
for not filing the photographs. It was noted that the Commissioner
failed to conduct an enquiry to see why the photographs had not been
found. Remarks were also made to the effect that it was also not
disclosed whether the photographs were even taken before releasing
the vehicles.
39. The learned Trial Court vide order dated 21.09.2022 noted that
notices were issued to the Commissioner of Police, however, no report
had been filed. It was noted that reports of junior officers in the police
had been received including one filed by the DCP which stated that
the same had been filed for the Commissioner of Police. Certain
observations with regard to non-production of case property in several
cases were also made. The learned Trial Court further issued fresh
notice to the Commissioner of Police to inform the Court whether he
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had received the previous notices issued by the Court. Similarly, vide
order dated 28.10.2022, the learned Trial Court issued notice to the
DCP and directed him to disclose about the practice of releasing case
property without seeking permission of the Court.
40. In CRL.M.C. 5979/2022, vide order dated 08.09.2022, the
learned Trial Court noted that the examination-in-chief of ASI
Rahisuddin could not be carried out for want of case property. In that
regard, the learned Trial Court made certain remarks regarding non-
production of the case property and issued notices to the
Commissioner of Police with direction to disclose the action taken by
the police on receiving the Court orders which repeatedly made
observations regarding non-production of case property. Notice was
also issued to the Special Commissioner of Police with direction to
show why action should not be taken against him for non production
of the case property.
41. The short point that falls for the consideration of this Court is
thus whether such remarks/strictures could have been passed by the
learned Trial Court during the course of hearing.
42. It is not in doubt that the orders passed by the Courts ought to
be obeyed in order to maintain the majesty of the Court. Further, it is
also not in doubt that judicial officers can pass directions and
observations to indicate the lapse on the part of the investigating
authority or fault, if any, in the conduction of the investigation.
However, while noting so, it is also pertinent to mention that the use
of vituperative remarks or those that tend to impeach the credibility of
the investigating authority ought to be avoided.
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43. It is pertinent to note that the Delhi High Court Rules for
‘Practice in the Trial of Criminal Cases’ under Chapter I, Part H,
Section 6 notes as under:
“6. Criticism on the conduct of Police and other officers—It is
undesirable for Courts to make remarks censuring the action of
police Officers unless such remarks are strictly relevant of the
case. It is to be observed that the Police have great difficulties to
contend with in this country, chiefly because they receive little
sympathy or assistance from the people in their efforts to detect
crime. Nothing can be more disheartening to them than to find that,
when they have worked up a case, they are regarded with distrust
by the Courts; that the smallest irregularity is magnified into a
grave misconduct and that every allegation of illusage is readily
accepted as true. That such allegations may sometimes be true it is
impossible to deny but on a closer scrutiny they are generally
found to be far more often false. There should not be an over-
alacrity on the part of Judicial Officers to believe anything and
every thing against the police; but if it be proved that the police
have manufactured evidence by extorting confessions or tutoring
witnesses they can hardly be too severely punished. Whenever a
Magistrate finds it necessary to make any criticism on the work
and conduct of any Government servant, he should send a copy of
his judgment to the District Magistrate who will forward a copy of
it to the Registrar, High Court, accompanied by a covering letter
giving reference to the Home Secretary’s circular Letter No. 920-J-
36/14753, dated the 15th April, 1936. ”
44. The Hon’ble Apex Court in A M Mathur v. Pramod Kumar
Gupta and Others : (1990) 2 SCC 533 emphasised the importance of
exercising judicial restraint while administering justice and observed
as under:
“12. It is true that the judges are flesh and blood mortals with
individual personalities and with normal human traits. Still
what remains essential in judging, Justice Felix Frankfurter
said: [ The Judiciary and Constitutional Politics — Views
from the Bench, Mark W. Cannon and David M.O.'s Brien p.
27] “First and foremost, humility and an understanding of the
range of the problems and (one's) own inadequacy in dealing
with them, disinterestedness ... and allegiance to nothing
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except the effort to find (that) pass through precedent,
through policy, through history, through (one's) own gifts of
insights to the best judgment that a poor fallible creature can
arrive at in that most difficult of all tasks, the adjudication
between man and man, between man and state, through
reason called law.”
13. Judicial restraint and discipline are as necessary to the
orderly administration of justice as they are to the
effectiveness of the army. The duty of restraint, this humility
of function should be constant theme of our judges. This
quality in decision making is as much necessary for judges to
command respect as to protect the independence of the
judiciary. Judicial restraint in this regard might better be
called judicial respect, that is, respect by the judiciary.
Respect to those who come before the court as well to other
co-ordinate branches of the State, the executive and the
legislature. There must be mutual respect. When these
qualities fail or when litigants and public believe that the
judge has failed in these qualities, it will be neither good for
the judge nor for the judicial process.”
45. In the case of State of West Bengal v. Mir Mohammad Omar
and Others : (2000) 8 SCC 382 , the Hon’ble Apex Court noted that
even when the flaw in the investigation results in acquittal of the
accused, yet the Courts should ordinarily refrain from making
castigating remarks, and observed as under:
“41. Learned Judges of the Division Bench did not make any
reference to any particular omission or lacuna in the investigation.
Castigation of investigation unfortunately seems to be a regular
practice when the trial courts acquit the accused in criminal cases.
In our perception it is almost impossible to come across a single
case wherein the investigation was conducted completely flawless
or absolutely foolproof. The function of the criminal courts should
not be wasted in picking out the lapses in investigation and by
expressing unsavoury criticism against investigating officers. If
offenders are acquitted only on account of flaws or defects in
investigation, the cause of criminal justice becomes the victim.
Effort should be made by courts to see that criminal justice is
salvaged despite such defects in investigation. Courts should bear
in mind the time constraints of the police officers in the present
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system, ill-equipped machinery they have to cope with, and the
traditional apathy of respectable persons to come forward for
giving evidence in criminal cases which are realities the police
force have to confront with while conducting investigation in
almost every case. Before an investigating officer is imputed with
castigating remarks the courts should not overlook the fact that
usually such an officer is not heard in respect of such remarks
made against them. In our view the court need make such
deprecatory remarks only when it is absolutely necessary in a
particular case, and that too by keeping in mind the broad realities
indicated above.”
46. A Co-ordinate Bench of this Court in State v. Yogender Singh :
2015 SCC OnLine Del 14203 when dealing with a challenge to an
order passed by the learned Trial Court whereby the Commissioner of
Police was directed to take action against the concerned SHO, it was
observed as under:
“15. While administering justice, a Judge is expected to be acting
judicially without being deterred by any consideration. While
doing so, he has the liberty of expressing his views about the
conduct of the investigating agency or other organs of the
Government but has to be careful about not overstepping its
jurisdiction. An order or a judgment is a privileged document and
a Judge has always to remind himself that the immunity which he
enjoys in writing an order or a judgment carries with it the duty of
circumspection.
16. If the learned Addl. Sessions Judge was not happy with the way
in which the investigation was being carried out, it was enough to
record his displeasure. That has been done aptly by the learned
Addl. Sessions Judge. What is not approved of is his direction to
send his order to the Commissioner of Police for taking action
against the erring police officials and submission of action taken
report to him. This cannot be taken kindly to on two scores. By
saying so, the learned Judge has pre-judged the action/inaction of
the investigating agency and other police officers without affording
any opportunity to explain the circumstances for delayed lodging
of the first information report; and the Court, by seeking action
taken report has in a way, encroached upon the administrative
functions of the police administration and thereby has begun
monitoring not the investigation of the case but the process of
taking disciplinary action against the police officials. The
Commissioner of Police, is left with no choice, once a Court of law
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holds that law has been flouted and, therefore, action be taken
against the concerned persons. The disciplinary enquiry, therefore,
would only be on paper when the offence is held by the court to
have been committed.
17. The observations of the Court with regard to the failure of the
investigating agency in taking prompt action is justified and is not
being interfered with. What is unnecessary and unwarranted is the
direction to the Commissioner of Police for taking action against
erring police officials and submission of ATR in that regard. Such
directions cannot be countenanced in the eyes of law.”
47. From a perusal of the impugned orders, it is apparent that the
remarks were made in regard to the failure on the part of the
investigating agency to carry out the investigation in a proper manner.
The impugned orders further manifest that despite numerous orders,
case property/photographs had not been produced. While the anguish
of the learned Trial Court is not without reason, yet use of disparaging
remarks that tend to lower the credibility of the investigating authority
ought to be avoided. If the learned Trial Court was concerned with the
manner of the conduction of investigation, the Court could simply
have recorded the fact. However, use of castigating remarks, show-
cause notices to the Commissioner of Police seeking action taken
against the officers, manner of enquiry, etcetera, in the opinion of this
Court, cannot be sustained.
48. It is also apparent that the learned Trial Court in CRL.M.C.
4930/2022 & CRL.M.C. 6801/2022 vide orders dated 12.08.2022 and
12.09.2022 had made certain observations in regard to the manner of
the investigation carried out by the investigating agency and the arrest
of the accused persons while considering the application for grant of
bail.
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49. It is well settled that while considering an application for grant
of bail, the Court only ought to decide the question of grant or
dismissal of bail. The Court thus cannot pass directions/strictures
while considering an application for grant of bail. The Hon’ble Apex
Court in State v. M Murugesan and Another : (2020) 15 SCC 251
while considering the question regarding the scope of jurisdiction of
Court when considering an application under Section 439 of the CrPC
had observed as under:
“11. We find that the learned Single Judge [M. Murugesan v.
State, 2019 SCC OnLine Mad 12414] has collated data from
the State and made it part of the order after the decision [M.
Murugesan v. State, Criminal Original Petition No. 1618 of
2019, order dated 18-2-2019 (Mad)] of the bail application,
as if the Court had the inherent jurisdiction to pass any order
under the guise of improving the criminal justice system in the
State. The jurisdiction of the court under Section 439 of the
Code is limited to grant or not to grant bail pending trial.
Even though the object of the Hon'ble Judge was laudable
but the jurisdiction exercised was clearly erroneous. The
effort made by the Hon'ble Judge may be academically proper
to be presented at an appropriate forum but such directions
could not be issued under the colour of office of the court.”
(emphasis supplied)
50. Similarly, in Sangitaben Shaileshbhai Datanta v. State of
Gujarat : (2019) 14 SCC 522 the Hon’ble Apex Court while
examining a question where the High Court after granting bail to the
accused had also ordered the accused and their relatives to undergo
scientific test, observed as under:
“6. Having heard the counsel for the parties, it is surprising
to note the present approach adopted by the High Court while
considering the bail application. The High Court ordering the
abovementioned tests is not only in contravention to the first
principles of criminal law jurisprudence but also violates
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statutory requirements. While adjudicating a bail
application, Section 439 of the Code of Criminal Procedure,
1973 is the guiding principle wherein the court takes into
consideration, inter alia, the gravity of the crime, the
character of the evidence, position and status of the accused
with reference to the victim and witnesses, the likelihood of
the accused fleeing from justice and repeating the offence,
the possibility of his tampering with the witnesses and
obstructing the course of justice and such other grounds.
Each criminal case presents its own peculiar factual matrix,
and therefore, certain grounds peculiar to a particular case
may have to be taken into account by the court. However,
the court has to only opine as to whether there is prima facie
case against the accused. The court must not undertake
meticulous examination of the evidence collected by the
police, or rather order specific tests as done in the present
case.
7. In the instant case, by ordering the abovementioned tests
and venturing into the reports of the same with meticulous
details, the High Court has converted the adjudication of a
bail matter to that of a mini trial indeed. This assumption of
function of a trial court by the High Court is deprecated.”
(emphasis supplied)
51. Consequently, the learned Trial Court while considering the
application for grant of bail cannot pass directions/strictures since the
jurisdiction of the Court on such an occasion is limited to either the
grant or dismissal of bail of the accused pending trial.
52. It is not in doubt that the orders of the Court must be obeyed
and complied with. Further, no individual shall be allowed to diminish
the authority and majesty of the Court. However, scathing remarks
tend to have lasting consequences. It cannot be overlooked that every
word that forms part of the record/judicial order gains permanence.
53. For this reason, strong criticism, vituperative remarks, may have
a devastating impact on the reputation and career of the officials
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involved in the case. Such remarks, as has been observed by Courts in
a catena of decisions, are not only unnecessary but also have serious
consequences on the careers of public servants.
54. In view of the foregoing discussion, the
remarks/observations/strictures passed by the learned Trial Court vide
orders dated 12.08.2022, 12.09.2022, 02.11.2022 in CR Case No.
3350/2022, orders dated 04.07.2022, 04.08.2022, and 21.09.2022,
28.10.2022 in CR Case No. 466247/2015, orders dated 08.09.2022
and 14.10.2022 in CR Case No. 214/2021 are expunged.
55. The present petitions are allowed in the aforesaid terms.
Pending applications stand disposed of.
56. A copy of this judgment be placed in all the matters.
AMIT MAHAJAN, J
FEBRUARY 7, 2025
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