CHATURBHUJ Vs. M A KHAN

JUDGEMENT

(1.) Sri Chaturbhuj, in his capacity as a Judicial Magistrate, convicted a person under section 379 of the Indian Penal Code. Having regard to the young age of 20 years of the accused, Sri Chaturbhuj, instead of awarding a sentence of imprisonment, released the accused on probation with the condition that he (the accused) will maintain good behaviour for a period of one year. Feeling aggrieved, the accused Raees son of Shabbir, preferred an appeal No. 330 of 1983, which was allowed by Sri Massarat Ahmed Khan, the TUrd Additional Sessions Judge at Saharanpur. According to Sri Chaturbhuj, the learned Turd Additional Sessions Judge in his judgment in the said appeal No. 330 of 1983 passed certain structures and made certain remarks on his judicial work, while acquitting the accused. Sri Chaturbhuj made a representation to this Court for the expunction of the structured remarks made by the IIIId Additional Sessions Judge. The Honble the Acting Chief Justice on 25th April, 1983, passed the following order on the said representation of Sri Chaturbhuj: List the matter for orders before the Court as an application under Section 482 Cr. P.C.. That is no how the matter has come up before me.

(2.) The learned IlIrd Additional Sessions Judge discussed the evidence led by the prosecution, discarded the testimonies of the prosecution witnesses on the ground they (the witnesses) were partison, disagreed with the appraisement of the evidence made by the applicant and allowed the appeal. He acquitted the appellant before him by giving benefit of doubt in these words: In such circumstances it appears that the accused appellant has been falsely implicated due to enmity and no case under section 379 Indian Penal Code is established against him beyond reasonable doubt and he deserves to be acquitted. The appeal has got substance and deserves to be allowed. The findings of the learned lower court is perverse and against the record. The Judicial Magistrate bas sought the expunction of that portion of the judgment of the learned IlIrd Additional Sessions Judge which has been underlined by me above. The learned IlIrd Additional Sessions Judge was dealing with an appeal which had come up before him in the ordinary course. There was no extra. ordinary feature in the case. He bad full power to disbelieve the prosecution evidence in the exercise of his appellate jurisdiction. The appeal before him was a continuation of the original proceedings which were before the Judicial Magistrate. He was called upon to rehear the case which was before the Judicial Magistrate. He was fully empowered to reappraise the evidence on the record and arrive at his own conclusion. He could igonre the conclusions of the Judicial Magistrate altogether. As he was not exercising a revisional jurisdiction, his powers to reappraise the evidence were unfettered.

(3.) The question to be considered is whether the remarks, which are subject matter of the controversy, made by the IlIrd Additional Sessions Judge were necessary at all for the disposal of the appeal. Were the remarks in question the ordinary incidence of the exercise of the appellate jurisdiction? Clearly they were not. In my opinion, the remarks were irrelevant. They bad no impact on the judgment. They were not an integral part of the judgment which resulted in the acquittal of the accused. He expunction of the remarks will not in any manner affect the reasons for the judgment as pronounced by the learned Sessions Judge.