STATE OF MAHARASHTRA Vs. GULAM MAHOMED

JUDGEMENT

(1.) IN regard to Cri. Appln. No. 499 of 1952 which is an application for expunging certain remarks which were made by the learned Presidency Magistrate against Essa Noor Mohomed, it will be apposite to refer to the principles which govern the applications for expunging such, remarks as laid down in the authorities. The first case to which our attention was drawn by Mr. K. A. Somjee in this connection was IN re Public Prosecutor, A.I.R. 1944 Mad. 320. It was a decision of Leach C. J. and Lakshmana Rao J. of the Madras High Court. IN the case before the learned Judges of the Madras High Court, a sort of a homily was preached by the learned Sessions Judge to the Government in regard to the desirability of not enforcing too strictly certain punitive measures which were enacted by the Government. The Government had made an application for an order expunging these remarks from the judgment of the learned Sessions Judge. The learned Chief Justice in the course of the judgment observed (p. 320) : ".... We have no doubt that in a proper case the Court has power to expunge a part of a judgment of a Court subordinate to it; but it will only take such action when the words objected to are not relevant to the ease and are of a scandalous or very improper nature." He then quoted the observations of Sulaiman J, (as he then was) in Panchanan v. Upendranath, 49 ALL. 254 at p. 356 that (p. 320) "... lie (Sulaiman J.) saw no reason why the inherent power of the Court, should not comprise a power to order a deletion of passages which are either irrelevant or inadmissible and which adversely affect the character of persons before the Court." He further quoted the observations of Din Mohammad J. in Petition by the Advocate-General Punjab 20 Lah. 327 at p. 329 that (p. 320) : "Courts are not expected to play to the gallery, nor to invoke the press in a manner which is liable to be misunderstood and may land the administration in general in an awkward situation," After quoting these observations, the learned Chief Justice observed that (p. 320) : "... It would have been far better if the learned Sessions Judge had confined himself to the case before him and had omitted the observations complained of, but it is a different matter to Bay that they are of such a nature that the Court should expunge them from the record. The Court must carefully guard against doing anything which might tend to restrict the free expression of judicial opinion on a matter before the Court." And therefore even though the Court considered that the homily should not have been indulged in and the Court did not agree with all the Sessions Judge had said, that was not a case which called for expunction. It cannot be gainsaid that Magistrates and Judges are entitled to pass remarks in their judgments on the conduct of a party or of a witness to proceedings provided the remarks are justified by findings, and it was observed by Dalip Singh J. in Karamat Ullah v. Emperor, A.I R. 1940 Lah. 42, that a Magistrate was not bound to confine himself merely to a finding that the accused was not proved guilty. Such a verdict often leaves the accused with a stain on his character in the public estimation though not in law and it was the duty of a Magistrate if he considered that the prosecution case was not only not proved but was deliberately false and concocted, to give such a finding in favour of the accused so that the accused should leave the Court without a stain on his character. Care should however, be taken to base the remarks and the comments which the learned Magistrate or the Judge makes in regard to the character or conduct of witnesses who appear to support the case on findings arrived at in that behalf, and the remarks and the comments should not be lightly made or be the result of any sentiment or prejudice on the part of the Magistrate or the Judge. Our attention was next drawn by Mr. K. A. Somjee to a decision of a Special Bench of the Lanore High Court reported in Haraless v. Harmless, A.I.R. 1940 Lah. 82 where it was laid down that "Judges, when commenting on the conduct of parties and others, should be very careful to use sober restrained language. A passage which is not necessary to the conclusion of the Judge nor even necessary to his argument tind is likely to militate seriously against patty's earning a living in his profession should be expunged from the judgment." We may in this connection also refer to the passage which has been quoted in Mitra's Criminal Procedure Code, vol. II, p. 1691 : "While on the one hand Courts are at liberty to discuss the conduct of the persons before them, either as parties Or as witnesses untrammelled by any considerations, on the other they are not permitted to travel beyond the record and are bound to exercise due restraint on the language employed by them. IN other words, they should neither make any such sweeping assertions as are not borne out by the evidence produced before them nor should they use language which is unduly harsh. Vide IN re Advocate-General, 10 Cr. L. J. 655 (Lah)." These principles have been very clearly and force-fully expounded in IN the matter of Daly, 9 Lah. 269 at p. 275 : [. . . the High. Court has power to empunge passages from judgments delivered by itself or by Subordinate Courts . . . But this jurisdiction is of an extraordinary nature sad has to be exercised with great care and caution.] On the one hand, it has to be borne in mind that in weighing evidence and arriving at conclusions on questions of fact, lower Courts have to review the conduct of witnesses with reference to particular incidents and at times have to adjudge generally on the veracity or otherwise of such persons and in doing so they have often to make remarks which reflect adversely on their character. It is of the utmost importance to the administration of justice that Courts should be allowed to perform their functions freely and fearlessly and without undue interference by this Court. At the same time it is . . . equally 'necessary that the right of Magistrates to make disparaging remarks on persons who appear, or are named, in the course of a trial is one that should be exercised with great reserve and moderation, especially where the person disparaged has had little or no opportunity of explaining or defending himself' If the conduct of a witness appears to the judge to be suspicious or otherwise not above board, he has the right and the duty to test his evidence by putting questions to-him. But before he is justified in commenting adversely upon a witness' evidence he must establish the particular fact warranting such criticism by proper evidence in Court, and not on conjectures or by reference to materials which are not properly on the record .... Again ... a Magistrate should not in his judgment 'make observations prejudicial to the character of a person, who is neither a witness nor a party to the proceedings and who has no opportunity of being heard. ' " [His Lordship concluded :]

(2.) EVEN though, therefore, the observations of the learned Presidency Magistrate generally against Essa Noor Mohomed could have been justified and the words which were used by him in the course of his judgment, viz., manoeuvre, dirty trick and sinister plot, could and should have been toned down to express his feelings against Essa Noor Mohomed in more restrained and dignified language, we do not see any justification for the remarks which the learned Presidency Magistrate made against Essa Noor Mohomed, viz. that he was not only an unscrupulous and treacherous person, but was also a most dangerous man. We are, therefore, of the opinion that these words should be deleted from the judgment of the learned Presidency Magistrate. These words occur at p. 65 of the appeal paper book in the paragraph beginning with: "When Mr. Kably for the accused applied for. The words we, therefore, order should be deleted from the judgment are: "After going through the evidence I have no doubt that the complainant is not only an unscrupulous and treacherous person but he is also a most dangerous man." Appln. No. 499 of 1952 will, therefore, be allowed to the extent mentioned above. [3] Order accordingly.