BARIK ALI Vs. STATE

JUDGEMENT

(1.) THIS is an application under Section 561 -A, Criminal Procedure Code praying for expunction of certain remarks.

(2.) THE applicant was station officer in charge of police station Dohri Ghat, district Azamgarh. There was a case against one Sheo Bandhan under Section 109, Criminal Procedure Code The Magistrate while acquitting the accused had held that : "I am also of the opinion that the S.O. Sri Barique Ali (Barik Ali) was present at the Police Station when the accused was brought there by the police constables and the money was taken from the accused by or in the presence of the S.O. Sri Barique Ali." There is no evidence on the record to that effect, nor was any question put to the applicant about this matter. This remark has been made without giving the applicant any opportunity to explain his conduct. The learned Magistrate in his explanation has accepted that there was no positive evidence of any other witness that would show that the applicant was present at the time when Sheo Bandhan was brought and that money was taken in the presence of the station officer. It is also correct that no question was put to him. But the learned Magistrate in his explanation has said that it was the duty of the sub -inspector, when the defence was that the money was taken by the sub -inspector, to explain himself. The prosecution witnesses are examined first and the defence conies afterwards; and in this case if no suggestion was made in cross -examination on behalf of the defence that the sub -inspector was present at the time, it was not at all incumbent on the sub -inspector to give any positive evidence that he was not present at that time.

(3.) TO base a remark on mere conjecture, in the absence of any evidence and without ever giving any opportunity to the person whom it affects, is not proper. In the circumstances I direct that the remark against the applicant as contained in paragraph 11 of the application shall be expunged from the judgment of the learned Magistrate. Order accordingly.