VINOD KUMAR JAIN Vs. J P SHARMA

JUDGEMENT

(1.) Earlier on 8.2.85, I passed an order quashing a complaint u/s 120-B Indian Penal Code and S. 5 of the Imports and Exports (Control) Act of 1947. This was done in Cr. R. No. 26 of 1982 Pyare Lal Aggarwal v. J.P. Sharma etc. Cr. Misc. (M) 1266/84 (Vinod Kumar Jain etc. v. J.P. Sharma and Crl. M (M) 145/84 (Arun Kumar Ramniklal Mehta etc. v. J.P. Sharma In this judgment certain observations were made which seems to have offended and hurt the State which has now come up with this petition praying that some of the remarks and observations made may be expunged from the judgment. Subsequent to this petition another petition Cr.M(M) No. 1231/85 was also moved in which one more sentence was sought to be expunged. This sentence appears at page 35 of the judgment and reads : "What followed in the words of Mr. Singh, learned counsel in two petitions was detention and the present prosecution." In this amended petition it was stated that if the words "State cannot be tolerated as an immoral litigant" appearing at page 31 of the judgment are expunged the word 'It' immediately following thereafter may be substituted with the word 'State'.

(2.) . It is necessary to indicate the paras or the parts of paras regarding which expunction is sought. (1) "All legitimate contracts under the abrogated policy has to be a first charge on the fresh policy and the licences even though issued and revalidated under the fresh policy could legitimately be used for the fulfilment of such contractual obligations. It would be immoral on the part of the State to say no to it." (Page 27 of judgment); (2) "State cannot be tolerated as an immoral litigant." (page 31 of judgment); (3) "It. was only after a public debate started about the beef tallow being allowed to be imported and, after a press report that Vanaspati was being adulterated with beef tallow, that orthodox sentiments were deeply shocked and the matter became a hot subject for Parliament and press. It was in this state of affairs that the State Machinery started witch hunt and found out a conspiracy to contravence the law, and the petitioners were made scapegoats." (Page 35 of judgment); (4) "In all fairness to to its citizens, the State, after the latest C.B.I. report should itself have withdrawn the complaint, but it seems that our State machinery has lost all initiative and drive and nobody is prepared to take responsibility for doing things as law and justice require of them. One wonders, when this malady afflicting the State machinery will be cured ? If the rust of this machinery is not removed it is bound to result in disaster. Why does the State wait for courts to provide relief due to a citizen. After all, doing of justice is not our monopoly. It is hardly a desirable situation to trust courts alone for dispensing justice, why can't it be done at all levels of administration ? If we want to emerge as a democratic and civilized society then justice must emerge from all streams of the State." (page 35-36 of judgment), (5) "To my mind, it is not a prosecution but persecution. Procedural laws are meant to further the ends of justice and, not to frustrate the same. State is a mighty authority. Considering its might, and resources it is capable of even defeating the objects for which it claims to exist. Courts have to closely watch its functions. It is our duty to stop the States from acting in a manner unwarranted by law and justice. If State by a wrong policy decision lands into difficulties it is not expected to make a citizen a scapegoat and get him beheaded in order to steer clear out of the situation. The present prosecution to my mind, is absolutely unwarranted and uncalled for. It can only erode the faith of the citizen in the promises held out by State and one of its direct result will be that the country's strides to go ahead will be retarded. If industrialists, exporters and importers lose faith in the promises of the State it can also result in the closure of industries and in resultant unemployment." (page 36-37 of judgment), (6) "In this case facts are so overwhelmingly weighing against the complainant that any rigid and inflexible legal view is bound to frustrate the interests of justice and result in the abuse of the process of the court and, that too, at the hands of State which, is duty bound to do justice to its citizens. After all, what has happened is that, in terms of the State's policy a citizen has acted and entered into a contract which under that policy is valid. How does the State enable its citizen to honour that commitment under the changed policy? If State does not make a provision in the changed policy about it, the policy to that extent may by itself be questionable. This is a case of compulsions. "Hang the citizen because the atmosphere in the country wants it to be done." Is it a rule of law ? Can this be a justification for prosecution ? State is duty bound to provide for such eventualities and if no provision is made let none suffer. I can only make observations and say what I feel should be done in the hope that State apparatus gives a serious thought to how it should function to avoid a situation such as this." (Pages 37-38 of judgment).

(3.) . Mr. N.S. Mehta has urged that these remarks are unfair and are neither necessary nor relevant for the decision of the case and that it is only in public interest to delete these remarks from the judgment as that alone can restore the faith of general public in the machinery of the Central Govt. According to him these observations are not necessary for the disposal of the case and should not have been made in the absence of Central Govt. being a party and since the observations thus made have seriously eroded the faith of the general public in the Central Govt. it is but in the interest of justice to expunge these remarks and to restore that faith which is so essential for the smooth governance of the country.