West Bengal State Electricity Board and Others v Desh Bandhu Ghosh and Others
Supreme Court of India

26 February 1985
Civil Appeal No. 562 of 1985
The Judgment was delivered by : O. Chinnappa Reddy, J.
Special leave granted.
1.  The West Bengal State Electricity Board is the principal appellant in this appeal by special leave which we have just now granted. The first respondent, a permanent employee of the West Bengal State Electricity Board, filed the writ petition out of which the appeal arises in the Calcutta High Court to quash an order dated march 22, 1984 of the Secretary, West Bengal State Electricity Board terminating his services as Deputy Secretary with immediate effect on payment of three month's salary in lieu of three month's notice. The order gave no reasons for terminating the services of the respondent and there was nothing in the order which could possibly be said to attach any stigma to the respondent. Apparently the order was made under Regulation 34 of the Board's regulations which enables the Board to terminate the services of any permanent employee 'by serving three months' notice or on payment of salary for the corresponding period in lieu there-of'. The High Court contrasted Regulation 34 with Regulation 33 which provides for the termination of services of both permanent and temporary employees of the Board on attaining the age of superannuation, as a result of the disciplinary action etc.
2.  For the sake of convenience we extract below Regulation 33 and the first paragraph (which alone is relevant) of Regulation 34:
"33 (1) Unless otherwise specified in the appointment order in any particular case, the services of a permanent employee of the Board may be terminated without notice-
(i) On his attaining the age of retirement or by reason of a declaration by the competent medical authority that he is unfit for further service; or
(ii) as a result of disciplinary action;
(iii) if he remains absent from duty, on leave or other wise, for a continuous period exceeding 2 years.
(2) In the case of a temporary employee, his service may be terminated by serving of-
(a) one month's notice on other side or on payment of a month's salary in lieu thereof; or
(b) notice on either side for the period specified in the appointment order or contract or on payment of salary in lieu thereof, as the case may be.
(c) the service of a temporary employee shall also be deemed to have been terminated automatically if the period of extraordinary leave without pay and/or of unauthorized absence from duties exceeding(s) a maximum period of 90 days.
"34. in case of a permanent employees, his services A may be terminated by serving three months' notice or on payment of salary for the corresponding period in lieu thereof."
3.  Contrasting Regulations 33 and 34 the High Court came to the conclusion that Regulation 34 was arbitrary in nature and suffered from the vice of enabling discrimination. The High Court, therefore, struck down the first paragraph of Regulation 34 and as a consequence quashed the order terminating the services of the first respondent.
4.  The learned counsel for the West Bengal State Electricity Board submitted that Regulation 34 did not offend Art. 14 of the Constitution, that sec. 18A and 19 of the Electricity Supply Act laid down sufficient guidelines for the exercise of the power under Regulation 34 and in any case the power to terminate the services of a permanent employee was vested in higher ranking officials and might be expected to be exercised in a reasonable way.
5.  We are not impressed with the submission of the learned counsel for the Board. On the face of it, the regulation is totally arbitrary and confers on the Board a power which is capable of vicious discrimination- It is a naked 'hire and fire' rule, the time for banishing which altogether from employer-employee relationship is fast approaching. Its only parallel is to be found in the Henry VIII class so familiar to administrative lawyers In Moti Ram Deka v. North East frontier Railway, AIR 1964, S C. 600 1963 Indlaw SC 215 Rules 148 (3) and 149 (3) of the Indian Railway Establishment Code were challenged on the ground that they were contrary to Art. 311 (2) of the Constitution. The challenge was upheld though no opinion was expressed on the question whether the rule offended art 14 of the Constitution. Since then Art. 14 has been interpreted in several decisions of this Court and conferment and exercise of arbitrary power on and by the State or its instrumentalities have been frowned upon and struck down by this court as offending Art. 14. In S. S. Muley v. J.R. D. Tata and Ors., [1979] 2 S.L.R. 438 1979 Indlaw MUM 3781 P. B. Sawant, J. of the Bombay High Court considered at great length Regulation 48 (a) of the Air India Employee's Service Regulations which conferred similar power on the Corporation as Regulation 34 confers on the Board in the present case.
6.  The learned judge struck down Regulation 48 (a) and we agree with his reasoning and conclusion. In Workman, Hindustan Steel Ltd. v. Hindustan Steel Ltd., A.I.R. 1985 S.C. 251 1984 Indlaw SC 249 this Court had occasioned to hold that a Standing Order which conferred such arbitrary, uncanalised and drastic power to enable the employer to dispense with an inquiry and to dismiss an employee, without assigning any reason, by merely stating that it was expedient and against the interest of the security to continue to employ the workman was violative of the basic requirement of natural justice.
7.  The learned counsel for the appellant relied upon Manohar P. Kharkhar v. Raghuraj, [1981] II L.L.J. 459 1981 Indlaw MUM 4036 to contend that Regulation 48 of the Air India Employee's Service Regulations was valid. It is difficult to agree with the reasoning of the Delhi High Court that because of the complexities of modern administration and the unpredictable exigencies arising in the course of such administration it is necessary for an employer to be vested with such powers as those under Regulation 48. We prefer the reasoning of Sawant, J. Of the Bombay High Court and that of the Calcutta High Court in the judgment under appeal to the reasoning of the Delhi High Court. In the result the appeal is dismissed with costs.
Appeal dismissed.


R. K. Lakshmanan v A. K. Srinivasan and Another
Supreme Court of India

1 August 1975
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1 30 of 1975. Appeal by Special Leave from the Judgment and Order dated the 13th March, 1974 of the Kerala High Court in Criminal Misc. Petition No. 7 of 1974 with Crl. M.P. No. 967/73.
The Judgment was delivered by: R. S. Sarkaria, J.
1.  This appeal by special leave is directed against a judgment of the Kerala High Court rejecting the appellant's application under s. 561-A. Criminal Procedure Code for expunction of certain remarks made against him in the High Court's order, dated 20-11-1973, in Criminal Misc. Petition No. 967 of 1973.
2.  The appellant is a member of the Kerala Judicial Service, while the respondent herein is an Advocate practising at Ernakulam. On 14-8-1973, the appellant was working as District Magistrate Ernakulam. One Kamaleswaran, who was an accused in C.C. Nos. 216 and 217 of 1973 pending before him, was ordered to be released on bail on his executing a bond for Rs. 1,000/with two sureties in the like amount. The two sureties were Kamaleswaran, the brother of the accused, and Sri Thankappan Nair. Thankappan's address was given as "businessman, son of Parameswaran Pillai, Thambanoor Trivandrum." The affidavit filed by Thankappan, while offering himself as surety, was attested by Sri A. K. Srinivasan Advocate stating "solemnly affirmed at Ernakulam on this 14th day of August 1973 and signed before me who is personally known to me".
3.  The above cases stood posted for examination of the accused under s. 342 of the Code of Criminal Procedure. When on that date the cases were called for hearing, the accused was absent. His Counsel Shri Srinivasan appeared and represented that although he had no information from the accused, who had to come from Trivandrum. yet he was expecting him to reach the court in time. The appellant (District Magistrate) thereupon ordered cancellation of the bail bonds and directed issue of notices to the Surety under s. 514 of the Code of Criminal Procedure calling upon him to show cause before 16-10-1973 why the terms of the Surety bonds providing for forfeiture of the sum of Rs. 1,000/be not enforced. The notices issued to the Surety Thankappan Nair, were returned unserved whereupon on the 17th October, 1973. the appellant issued a non-bailable warrant for the arrest of the Surety. On the following day, the appellant issued a notice to Sri A. K. Srinivasan, Advocate which ran as under:
"Ernakulam District Magistrate Court No. M.C. 106 and M.C. 107 of 1973.
Notice for Shri A. K. Srinivasan, Advocate.
The above-mentioned cases are being fixed for hearing 3-11-1973 at 11 A.M. You are required to appear before the Court. .... .............
By order
Sd./
18th October. 1973 SARISHADAR."
4.  It may be mentioned here that in the proceedings initiated under s. 514 of the Code of Criminal Procedure in the two cases . Mr. Srinivasan, Advocate was not the duly constituted attorney or the Surety, Thankappan.
5. On receipt of the aforesaid notice, Mr. Srinivasan, Advocate filed Crl. M.P. 967 of 1973 before the High Court of Kerala under s. 561-A of the Code of Criminal Procedure praying that the appellant be directed to withdraw the notice, dated 18-10-1973, on the ground that the issue of notice was arbitrary and amounted to an abuse of the process of the court because-
(a) There is no provision in the Criminal Procedure Code empowering the Magistrate to issue such a notice to command the Advocates' appearance when he is not connected either as a witness or a party or otherwise with the proceedings relating to cancellation of bailbonds;
(b) The notice was issued to humiliate him and the Bar since the latter had passed a resolution, on 21-7-1973, pro testing against the improper and discourteous treatment meted out by the Magistrate to the members of the Bar.
6.  The learned Judge of the High Court before whom this petition came up for hearing, by an order dated 2-11-1973, called for a report from the appellant by 5-11-1973 regarding the allegations contained in, the Advocate's petition and particularly as to under which provision of law and under what circumstances he had thought it fit to issue a notice to the Advocate requiring him to appear before him on 3-11-1973. The appellant thereupon submitted the report to the High Court, the material part of which reads:
"When notice was sent to the surety Thankappan Nair whose address is given as, business-man, Thambanoor, Trivandrum, it was reported by the Police that there is no such person, as far as they could gather, from the detailed enquiries made and therefore notice could not be served. In the affidavits filed by Shri Thankappan Nair in these two cases when he offered himself as surety the signatures of the deponent were attested by Shri A. K. Sreenivasan, Advocate stating Solemnly affirmed at Ernakulam on this the 14th day of August 1973 and signed before me? who is personally, known to me. From the report of the Police Trivandrum it appeared that this might be a case of false personation. It is seen that in several cases the accused have been got re leased by false sureties. have already submitted a report about this to the Hon'ble High Court as per my letter dated 31-10-1973.
There are several other similar instances of false personation and filing false affidavits pending enquiry before this Court. Under the circumstances in this case also it appeared to the court that a false affidavit has been filed by false personation. If it is false personation, the attestation by the advocate should necessarily be false. The offences under Sections 193, 196, 197, 199 and 205 of the Indian Penal Code appear to have been committed. These are some of the offences mentioned in S. 195 Cr. P.C. Under s. 476 of the Cr. P.C. when any Civil, Revenue or Criminal Court is whether on application made to it in this behalf or otherwise, of opinion that it is expedient in the interest of justice that an enquiry should be made into any offence referred to in s. 195, Sub-s. (1), Cl. (b) or cl. (c), which appears to have been committed in or in relation to a proceeding in that court, such court may, after such preliminary inquiry if any, as it thinks necessary, record a finding to that effect and make a complaint thereof in writing signed by the presiding officer of the Court.. To ascertain whether there is a person as described in the affidavits filed in the name of Shri Thankappan Nair notice was issued as part of the preliminary enquiry contemplated u/s. 476 Cr. P.C. to Shri A. K. Sreenivasan who has attested the affidavits of the said Thankappan Nair stating that the deponent is personally known to him. This had to be done in view of the report of the police. Notice to Shri A K. Sreenivasan was issued to appear in court on 3-11-1913 not in his capacity as Advocate appearing for the accused but as the person who has attested the affidavit of the said surety stating that he personally knows the surety. The court can make the preliminary enquiry mentioned above, either through the police or to the accused or to the other surety or to the person who attested the affidavit. In this matter accused is absconding. the other surety could not be served and the police report is as stated above. So the only person to whom the inquiry under 476 could be made in the circumstances is the person who has attested the affidavit."
7.  On 8-11-1973, the Advocate filed an affidavit in which he inter alia averred:
"I submit that the present explanation that the notice was issued to me as a part of the preliminary enquiry contemplated under sec. 476 of the Criminal Procedure Code is obviously an after-thought, since it is difficult that any reasonable man would have inferred from the Police Report dated 12-10-1973 that Sri Thankappan Nair" one of the sureties was a nonexistent person and therefore the attestation mad by me on 14-8-1973 would have been false".
8. He further reiterated with elaboration the allegations in his petition that the impugned action of the Magistrate lacked good faith and due care and had been issued to humiliate the bar generally and the petitioner particularly. After taking into consideration the appellant's report and other material on record, the High Court quashed the notice holding that the "action of the District Magistrate in issuing the impugned notice to the appellant constitutes grave misuse of his power and flagrant abuse of the process of the court".
9.  The appellant then moved an application (Cr. M.P. No. 7 of 1974) for expunction of the remarks made against him by the High Court in its order, dated 20-11-1973. The application was rejected.
10. Against that order, dated 13-3-1974, refusing to expunge the adverse remarks, Shri Lakshmanan the District Magistrate has come in appeal to this Court.
11.  11l the reply affidavit, dated 21-3-1975, filed in this Court, the appellant has submitted that if this Court is prima In of the opinion that the passages requested to be expunged are too many and spread over throughout the order, at least these four passages be expunged from the order in question:
"(i) I cannot help remarking that the information furnished to this Court by the District Magistrate in his report dated 3-11-1973 regarding the contents of the Police Report is grossly inaccurate and misleading."
"(ii) I make no secret of my opinion that the action taken by the District Magistrate, in the present case in issuing a notice to the petitioner, who is a member of the bar, was most highly arbitrary and the very casual fashion in which the said action has been done renders it all the more objectionable."
"(iii) that the action taken against the petitioner by the District Magistrate is totally devoid of any legal sanction and highly arbitrary. '
"(iv) l hold that the action of the District Magistrate in issuing the impugned notice to the petitioner constitutes a grave misuse of his power and also flagrant abuse of the process of his court".
12.  The tests to be applied in considering the expunction of disparaging remarks against persons or authorities whose conduct comes in for consideration before courts of law in cases to be decided by them, were neatly summed up by this Court, speaking through S. K. Das, J., in State of U.P. v. Muhammad Nain, thus:
"(i) Whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself;
(ii) Whether there is evidence on record bearing on that conduct justifying the remarks; and
(iii)Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that con duct. It has also been recognised that judicial pronouncements must be judicial in nature, and should n not normally depart from sobriety, moderation and reserve."
Let us now apply these tests to the present case.
13. In the petition filed under s. 561-A, Code of Criminal Procedure by the Advocate, the appellant was impleaded as the sole respondent. The appellant was called upon by the High Court to explain his conduct in issuing the impugned notice. In reply, the appellant submitted a detailed report. It is not controverted that before the High Court. the appellant was represented by a senior Public Prosecutor who had been directed to defend him by the State Government. The appellant had thus adequate opportunity of explaining his conduct and defending the impugned action. Indeed, in his report submitted to the High Court, he did his best to justify his conduct in that case. The appellant therefore, cannot complain that the remarks in question were passed by the High Court without affording him due opportunity to explain and defend his action.
14.  Nor can it be said that this is a case where there was no evidence on record bearing on the conduct of the appellant to which the re marks in question pertain.
15. It is true that ex-facie, the notice requiring the Advocate to attend the Court of the Appellant on 3-11-73, though couched in curt and peremptory language, was not, by itself, a very offensive document. But the Advocate's allegation was that it had not been issued in good faith and the sole purpose of issuing this notice was to humilate the Advocate and the Bar who had earlier passed a resolution complaining to the High Court against the misbehaviour of the appellant towards the members of the Bar. Subsequently, on 8-11-1973 the Advocate field an affidavit setting forth full particulars of the circumstances which, according to him, showed how the notice was illegal. arbitrary and tainted by bad faith. He annexed a copy of the Bar's resolution, to his affidavit. the report sent by the appellant to the High Court confirmed that the allegations made in the Advocate's petition were not empty apprehensions. The report revealed that the notice was not an innocuous request to the Counsel to furnish better k particulars of the Surety, but it was a preliminary step taken under cover of s. 476, Criminal Procedure Code for possible prosecution of the Advocate. The appellant gave a clear clue to his ulterior intent, when in the report, he said:
"Notice to Shri A. K. Sreenivasan was issued....not in his capacity as Advocate appearing for the accused but as the person who has attested the affidavit of the said Surety .... "
16.  Thus there was ample material before the High Court bearing on the impugned conduct of the appellant, justifying the adverse comments in question.
17. Again, the passages sought to be expunged could not be said to be irrelevant or alien to the subject matter of the case before the High Court. The notice issued to the Surety had been returned by the police with an endorsement which, rendered into English, reads as under:
"Notice could not be served on the person referred to in the notice as he (process server) did not get any information about him after detailed enquiry made about him in Tampanoor from different businessmen. For want of sufficient information and more detailed particulars regarding the nature of the business conducted at Tampanoor by the person referred to in the notice, the service could not be ' effected. Submitted for orders".
18.  But in his report submitted to the High Court, the appellant stated that "it was reported by the Police that there is no such person as far as they could gather from the detailed inquiries made and therefore notice could not be served". Manifestly, this statement did not present a faithful and correct picture of the endorsement of the process server. Evidently, this misleading stand was taken by the appellant to show that action under s. 476, Criminal Procedure Code against the Advocate would not be groundless. In these premises it cannot be said that the observations of the High Court that "information furnished to this Court by the District Magistrate in his report dated 3-11-73 regarding the contents of the Police Report is grossly inaccurate and misleading" was unjustified.
19.  The substance of the other remarks in question is substantially the same, viz., that the issue of the impugned notice to the Advocate by the appellant was illegal and arbitrary and amounted to a gross abuse of the process of the Court. These remarks were an integral part of the reasoning of the High Court. They were not irrelevant or foreign to the matter in issue. They were inextricably intertwined with the findings and the order recorded by the High Court in that case. Excision of these remarks would emasculate the order of the High Court, robbing it of its very rationale.
20. Judged by the aforesaid tests, no case for interference by this Court has been made out.
21.  Accordingly, we dismiss the appeal, with no order as to costs.
Appeal dismissed.


State of Uttar Pradesh v Mohammad Naim
Supreme Court of India

15 March 1963
Criminal Appeal No. 81 of 1962
The Judgment was delivered by S. K. DAS J.
1. This is an appeal by special leave, and it Presents some unusual features. The short facts are these. The Additional Sessions judge of Hardoi in the State of Uttar Pradesh tried Zafar Ali Khan and three other persons on charges under ss. 452 and 307 read with s. 34, Indian Penal Code, 1860. The case against the aforesaid accused persons started on a first information report lodged at a police station called Shahabad, purporting to have been so lodged at about 3.30 A. M. by one Farasat Ali Khan on the night between the 7th and 8th November, 1958. The case was investigated by one Mohammad Naim who was then the Station Officer of Shahabad police station. The learned Additional Sessions judge convicted the accused persons though he found, on the evidence given in the case, that it was more probable that the first information was lodged at the police station at about 7 or 8 A.m. rather than at 3.30 A. M. From the conviction and sentences passed by the Additional Sessions judge there was an appeal to the High Court at Allahabad (Lucknow Bench). This appeal was heard by Mulla J. He found that Mohammad Naim had dressed' up a totally unbelievable case which destroyed the evidentiary value of the statements of Farasat Ali and his wife, Ummati Begum, two of the principal witnesses for the prosecution. The Learned judge allowed the appeal and set aside the conviction and sentences of the four appellants before him. The learned judge further observed in his judgment:
"There is ample evidence to prove that the first information report in this case was not lodged at 3.30 A. M. This is also the finding of trial court. The time noted in the first information report is, therefore, a fictitious time and a fabrication has been made in the public records. I, therefore, direct the office to issue a notice to Sri Mohammad Naim as to why a complaint should not be instituted against him by this court u/s. 195 I. P. Code."
"I issued the notice because I want to clean the public administration as for as possible but an individual's efforts cannot go very far. If I had felt that with my lone efforts I could have cleaned this augean stable, which is the police force, I would not have hesitated to wage this war single-handed. I am on the verge of retirement and taking such steps for two months or three months more would not make any difference to the constitution and the character of the police force...... Somehow the police force in general, barring few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law and this can only be achieved by breaking or circumventing the law. At least the traditions of a hundred years indicate that this is what they believe.
If this belief is not rooted out of their minds, there is hardly any chance of improvement............ I say it with all sense of responsibility that there is not a single lawless group in the whole of the country. whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force. If the Police Force must be manned by officers like Mohmmad Naim then it is better that we tear up our Constitution, forget all about democracy and the rights of citizens and change the meaning of law and other terms not only in our penal enactments but also in our dictionaries. It is for these reasons that I am accepting this apology and not filing any complaint against Mohmmad Naim. Where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks. 1, therefore, discharge the notice issued against Shri Mohmmad Naim."
"If I had felt that with my lone efforts I could have cleaned this augean stable, which is the police force, I would not have hesitated to wage this war single handed."
(b)" That there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit whichh is known as the Indian Police Force."
(c)" Where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks."
2. The main ground which the State of Uttar Pradesh urged in support of their petition was that
"the observations over the entire police force, bring the same into contempt, lower its prestige in the eyes of mankind, have a tendency to interfere with the' administration of the country and injure the security of the State."
3. Mr. justice Mulla heard the application and came to the following main conclusions :- (1) That the State of Uttar Pradesh was not an aggrieved party and had no locus standi to make an application under s. 561-A Code of Criminal Procedure in respect of the observations made.
(2) The observations required only one clarification namely, that they were made in respect of the police force of Uttar Pradesh and not of the whole country.(3) The observations made under (a) above would have been expunged, if the aggrieved party had approached the learned Judge.
(4) As to the rest of the observations, there were no good grounds for expunging them because they were based upon the learned Judge's personal knowledge and experience and did not contain any over statements.
4. He accordingly dismissed the application of the State. The State then moved the High Court for a certificate of fitness under Art. 134(1) (c) of the Constitution of India and being unsuccessful there, asked for special leave of this court under Art. 136 of the Constitution. This court granted special leave on April 12, 1962. The present appeal has been preferred from the order of the learned judge rejecting the application under s. 5(31-A Cr. P. C., in pursuance of the leave granted by this court.
5. The first point which falls for consideration is whether the State of Uttar Pradesh had locus standi to make the application under s. 561-A Cr. P. C. We may first read the section :
"Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice."
6. It is now well settled that the section confers no new powers on the High Court. It merely safeguards all existing inherent powers possessed by a High Court necessary (among other purposes) to secure the ends of justice. The section provides that those powers which the court inherently possesses shall be preserved lest it be considered that the only powers possessed by the -court are those expressly conferred by the Code and that no inherent powers had survived the passing of the Code , We shall presently deal with the question whether the High Court has inherent power to expunge the remarks made by it or by a lower court to prevent abuse of the process of any court or otherwise to secure the ends of justice. Assuming that the High Court has such power, the question now before us is, can the State Government invoke this inherent jurisdiction of the High Court? The learned judge of the High Court gave two reasons for his finding that the State Government had no locus standi to make an application under s. 561-A Cr. P. C. The first reason he gave was that the State Government could not be said to have been aggrieved by the observations made by him. The second reason he gave was that the State represented the executive as well as the judiciary and therefore it would be anomalous if it made an application under s. 561-A Cr. P. C., for such an application would be by the State through its executive to expunge remarks made by it as the judiciary.
7. We do not think that any of these two grounds is tenable. Under Art. 154 of the Constitution the executive power of the State is vested in the Governor and shall be exercised by him either directly or through officers subordinate to him. The expression "State Government" has a meaning assigned to it under the General Clauses Act, 1897 (X of 1897). Briefly stated, it means the authority or person authorised at the relevant date to exercise executive government in the State, and after the commencement of the Constitution, it means the Governor of the State. It is not disputed that the police department is a department of the State Government through which the executive power of the State as respects law and order is exercised. If the State Government considers that the observations made by a court in respect of a department or officers through whom the State Government exercises its executive powers are such as require invoking the inherent power of the High Court under s. 561 -A Cr.P. C., it is difficult to see why the State Government cannot be considered to be the party aggrieved by such observations. Furthermore, it is not disputed that the State is a juristic person. The Code of Criminal Procedure itself recognises in some of its provisions the rights of the State Government; such as, the right to give sanction and to move the court for necessary action etc. the State Government being the authority or person authorised to exercise executive Government at the relevant date.
8. Some of these provisions are contained in ss. 144 (6), 190 (2), 190 (3), 196, 196-A, 197 etc. of the Code. One outstanding example is furnished by s. 417 of the Code which gives to the State Government a right of appeal to the High Court from an original or appellate order of acquittal passed by any court other than a High Court. It is also not disputed that the State Government may invoke the revisional jurisdiction of the High Court under s. 439 of the Code, though that section is general in its terms and does not specifically mention the State Government. Therefore, we fail to see why the State Government cannot make an application under s. 561-A. We see nothing anomalous in the State Government moving the court for redress when it feels aggrieved by remarks made against it, The State Government may make an application to the High Court under s. 561-A in the same way as it may direct the Public Prosecutor to present an appeal on its behalf to the High Court under s. 417 or may invoke through one of its officers the jurisdiction of the High Court under s. 439 of the Code. We have, therefore, come to the conclusion that the finding of the learned judge that the State Government has no locus standi to make the appli- cation under s. 561-A Cr. P.C. is erroneous in law. Our attention was drawn to some cases where the State Government made such applications in a pending appeal. No question was however raised therein whether the State Government had locus standi to make the applications; therefore, we have thought fit to decide the point on principle rather than on cases where such applications were made.The second point for consideration is this, has the High Court inherent power to expunge remarks made by itself or by a lower court to prevent abuse of the process of any court or otherwise to secure the ends of justice ? There was at one time some conflict of judicial opinion on this question. The position as to case-law now seems to be that except for a somewhat restricted view taken by the Bombay High Court, the other High Courts have taken the view that though the jurisdiction is of an exceptional nature and is to be exercised in most exceptional cases only, it is undoubtedly open to the High Court to expunge remarks from a judgment in order to secure the ends of justice and prevent abuse of the process of the court lsee Emperor v. Ch. Mohd. Hassan 1943 AIR(Lah) 298.); State v. Chhotay Lal 1955 ALJ 240.); Lalit Kumar v. S. S. Bose 1956 Indlaw ALL 121.); S.Lal Singh v. State 1959 AIR(P&H) 211.) Ram Sagar Singh v. Chandrika Singh 1960 Indlaw PAT 790.); and In re Ramaswami 1958 AIR(Mad) 303.) The view taken in the Bombay High Court is that the High Court has no jurisdiction to expunge passages from the judgment of an inferior court which has not been brought before it in regular appeal or revision; but an application under s. 561-A Cr. P. C. is maintainable and in a proper case the High Court has inherent jurisdiction, even though no appeal or revision is preferred to it, to correct judicially the observations made by pointing out that they were not justified, or were without foundation, or were wholly wrong or improper I see State v. Nilkanth Shripad Bhave 1954 ILR(Bom) 148.). In State of U. P. v. J. N. Bagga (judgment in Cr. A. 122/1959 of this court decided on January 16 1961.), this court made an order expunging certain remarks made against the State Government by a learned Judge of the High Court of Allahabad. The order was made in an appeal brought to this court from the appellate judgment and order of the Allahabad High Court. In State of U. P. v. Ibrar Hussain (Judgment of this court in Cr. As. 148/) 957 and 4 of 1958 decided on April 28, 1959.), this court observed that it was not necessary to make certain remarks which the High Court made in its judgment. Here again the observation was made in an appeal from the judgment and order of the High Court. We think that the view taken in the High Courts other than the High Court of Bombay is correct and the High Court can in the exercise of its inherent jurisdiction expunge remarks made by it or by a lower court if it be necessary to do so to prevent abuse of the process of the court or otherwise to secure the ends of justice; the jurisdiction is however of an exceptional nature and has to be exercised in exceptional cases only. In fairness to learned counsel for the appellants we may state here that he has submitted before us that the State Government will be satisfied if we either expunge the remarks or hold them to be wholly unwarranted on the facts of the case. He has submitted that the real purpose of the appeal is to remove the stigma which has been put on the police force of the entire State by those remarks the truth of which it had no opportunity to challenge.The last question is, is the present case a case of an exceptional nature in which the learned judge should have exercised his inherent jurisdiction under s. 561-A Cr. P. C. in respect of the observations complained of by the State Government ? If there is one principle of cardinal importance in the administration of justice, it is this : the proper freedom and independence of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by any body, even by this court. At the same time it is equally necessary that in expressing their opinions judges and Magistrates must be guided by considerations of justice, fairplay and restraint. It is not infrequent that sweeping generalisations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider (a) whether the party whose conduct is in question is before the court or has an opportunity of explaining or defending himself ; (b) whether there is evidence on record bearing on that conduct justifying the remarks ; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.
9. In the case before us the learned judge chose to make sweeping and general observations against the entire police force of the State. The case before him related to only one police officer, Mohammad Naim, about whose conduct the learned judge was undoubtedly justified in making adverse remarks. The learned Judge himself realised that the remarks which he had made were much too general and sweeping in character, because in his later order he said that the remarks were meant for the police force in Uttar Pradesh only and he further said he would have expunged the remarks under the head (a) referred to earlier, if the party aggrieved had come before him. We consider that the remarks made by the learned judge in respect of the entire police force of the State were not justified on the facts of the case, nor were they necessary for the disposal of the case before him. The learned judge conceded that the general remarks he made were not based on any evidence in the record; he said that he drew largely from his knowledge and experience at the Bar and on the Bench.
10. Learned counsel for the appellant has very frankly stated before us that the learned judge has had very great experience in the matter of criminal cases, and was familiar with the method of investigation adopted by the local police. He has contended, however, that it was not proper for the judge to import his personal knowledge into the matter. We do not think that in the present case we need go into the question as to the extent to which a judge or Magistrate may draw upon his experience in assessing or weighing evidence or even in judging the conduct of a person. We recognise the existence of exceptional circumstances in a case where the judge or Magistrate may have to draw upon his experience to determine what is the usual or normal conduct with regard to men and affairs. We say this with respect, but it appears to us that in the present case even allowing' for the great experience which the learned judge had in the matter of criminal trials, his statement that
"there was not a single lawless group in the whole country whose record of crime came anywhere near the record of that organised unit which is known as the Indian Police Force"
11. To characterise the whole Police Force of the State as a lawless group is bad enough ; to say that its record of crime is the highest in the State is worse and coming as it does from a Judge of the High Court, is sure to bring the whole administration of law and order into disrepute. For a sweeping generalisation of such a nature, there must be a sure foundation and the necessity of the case must demand it. We can find neither in the present case. We think that the State Government was justifiably aggrieved by such a sweeping remark. Similar in nature is the remark about the stinking of "every fish in the police force barring, perhaps, a few." The word "perhaps" seems to indicate that even about the few, the learned judge had some doubt. We consider that these sweeping generalisations defeat their own purpose. They were not necessary for the disposal of the case against Mohammad Naim. It would have been enough for the learned judge to say that when a large number of police officers were resorting to an objectionable method of investigation, it was unnecessary to pick out one petty officer and prosecute him for doing what several others had done with impugnity, It was wholly unnecessary for the learned judge to condemn the entire police force and say that their record of crime was the highest in the country. Such a remark instead of serving the purpose of reforming the police force, which is the object the learned judge says he had in mind, is likely to undermine the efficiency of the entire police force. We think that in his zeal and solicitude for the reform of the police force, the learned judge allowed himself to make these very unfortunate remarks which defeated the very purpose he had in mind. Having said all this, we must add, lest we be misunderstood, that the conduct of Mohammad Naim and officers like him deserves the severest condemnation, and the learned judge rightly observed that such conduct required very serious notice by superior officers of the Police. It is difficult to avoid the reflection that unless an example is made of such officers by taking the most stringent action against them, no improvement in police administration is possible.For the reasons given above, we have come to the conclusion, a conclusion which justice demands, that the present case is one of those exceptional cases where the inherent jurisdiction of the court should have been exercised and the remarks earlier referred to as (a), (b) and (c) should have been expunged. We accordingly allow the appeal and direct that the aforesaid remarks do stand expunged from the order of the learned judge dated August 4, 1961.


Masud Khan v State Of Uttar Pradesh
Supreme Court of India

26 September 1973
Writ Petition No. 117 of 1973
The Judgment was delivered by : A. Alagiriswami, J.
1.  Petitioner Masud Khan prays for his release on the ground that he, an Indian citizen has been illegally arrested and confined to, jail under Paragraph 5 of the Foreigners (Internment) Order, 1962. He had come to India from Pakistan on the basis of a Pakistani passport dated 137-1954and Indian visa dated 9-4-1956. In his application for visa he had stated that he had migrated to Pakistan in 1948 and was in Government service in Pakistan in P.W.D. as a Darogha and had given his permanent address as Hyderabad (Sind).
2.  If these statements were correct the petitioner would clearly be a Pakistani national. When this fact was brought out in the counter affidavit filled on behalf of the respondent, the petitioner filed a further affidavit stating that he was appointed as a Police Constable in Hasanganj Police Station, District Fatehpur, U.P. in February 1947 and continued as a Police Constable till the middle of 1950 when he was dismissed from service, and that he went to Pakistan in the year 1951.In the reply affidavit filed on behalf of the respondent it is stated that one Md. Masood Khan son of Zahoor Khan was enrolled as Police Constable on 16-9-1947 and he was discharged from service on 20-5-1949. It is fairly clear that this information culled from the English Order Book from 1-101947 to 27-12-1951 refers to the petitioner. While, therefore, it is established that the petitioner did not go to Pakistan in 1948, it cannot be said that it has been established that the petitioner went to Pakistan only in 1951.When he went to Pakistan is a matter peculiarly within his knowledge and the produced no evidence in support of that statement.
3.  Considering the frequent change of ground which the petitioner has resorted to, a mere statement from him cannot be accepted as true. Nor can we accept his contention that it is for the respondent to establish that lie did not go to Pakistan in 1951 but that he went on some other date. The petitioner has also alleged that he was married in U.P. on 25th December, 1949.Even assuming that this statement is correct; the petitioner cannot establish that he is a citizen of India unless lie succeeds in establishing that he was in India on 26-1-1950. If he bad been in India on 26-1-1950 but had gone to Pakistan in 1951 it would be for the Central Government to decide whether he is a Pakistani national or an Indian citizen even though he may have come to India on a Pakistani passport in 1956. That question does not arise here.
4.  We are not prepared to assume that the petitioner should be deemed to have been present in India on 26-1-1950, as was urged on behalf of the petitioner. There is no room for any such presumption. Under s-9 of the Foreigners Act whenever a question arises whether a person is or is not a foreigner the onus of proving that he is not a foreigner lies upon him. The burden is therefore, upon the petitioner to establish that be is a citizen of India in the manner claimed by him and therefore be is not a foreigner. This burden not having been discharged by the petitioner it should be held that he is a foreigner and his claim that he is an Indian citizen cannot be dealt with under the Foreigners (Internment) Order, 1962 must be rejected.
5.  It appears, however, that in 1960 he had been prosecuted before the Sub-Divisional Magistrate, Fatehpur under s. 14 of the Foreigner--, Act and was acquitted on the ground that he was not a foreigner. It was therefore contended that the question whether the petitioner is -a foreigner or not is a matter of issue estoppels. The decision that he was not a foreigner seems to have been based on the decision of the Allahabad High Court in Mohd. Hanif Khan v. State (AIR 1960 All. 434). 1959 Indlaw ALL 154It was held there that a Pakistani national who entered into India before the amendment to the Foreigners Act in 1957, when he could not be considered to be a foreigner, could not be so held because of that amendment. That decision was that of a learned Single Judge. On the point at issue he differed from an earlier decision of a learned Single Judge of the same Court in Ali Sher v. The State (AIR 1960 All. 431). 1959 Indlaw ALL 153But he decided that case before him on a different point and did not think it necessary to refer the case before him to a Bench for considering which of the two decisions was correct on the question regarding the nationality of a person who came to India on a Pakistani passport before 1957. There are thus two conflicting decisions of the same court on the same point and the Magistrate who decided the petitioner's case followed one of them.
6.  But that apart, this matter could bedecided on another point.. The question of issue-estoppels has been considered by this Court in Pritam Singh v. State, of Punjab (AIR1956 SC 415), 1955 Indlaw SC 111 Manipur Administration v. Thokchom, Bira Singh (1964 7 SCR 123) 1964 Indlaw SC 413 and Piara Singh S. State of Punjab. Issue-estoppels arises only if the earlier as well as the subsequent proceedings were criminal prosecutions. In the present case while the earlier one was a criminal prosecution the present is merely an action taken, under the Foreigners (Internment) Order for the purpose of deporting the petitioner out of India.
7.  It is nota criminal prosecution. The principle of issue estoppels is simply this : that where an issue of fact has been tried by a competent court on a former occasion and a finding has been reached in favored an accused, such a finding would constitute an estoppels or res judicator against the prosecution not as a bar to the trial and conviction of the accused for a different or distinct offence but as precluding the reception of evidence to disturb that finding of fact when the accused is tried subsequently, even for different offence which might be permitted by law. Pritam Singh's case 1955 Indlaw SC 111 (supra) was based on the decision of the Privy Council in Sambasivam v. Public, Prosecutor, Federation of Malaya (1950 A.C. 458). In that case Lord McDermott speaking for the Board said:
"The effect of a verdict of acquittal pronounced by a competent court on a lawful charge and after a lawful trial is not completely stated by saying that the person acquitted cannot be tried again for the same offence. To that it must be added that the verdict is binding and conclusive in all subsequent proceedings between the parties to the adjudication."
It should bekept clearly in mind that the proceeding referred to herein is a criminal prosecution. The plea of issue-estoppels not the same as the, plea of double jeopardy or aura foist acquit. In The King v. Wilkes (77 C.L.R.511)
Divon, J.
8.  Referring to the question of issue estoppel said. view that there is an issue estoppels, if it appears by record of itself or as explained by proper evidence, that the same point was determined in favour of a prisoner in a previous criminal trial which is brought in issue on a second criminal trial of the same prisoners There must be prior proceeding determined against the Crown necessarily involving an issue which again arises in a subsequent proceeding by the Crown against the same prisoner. The allegation of the Crown in the subsequent proceeding must itself be inconsistent with the acquittal of the prisoner in the previous proceeding. But if such a condition of affairs arises I see no reason why the ordinary rules of issue-estoppels should not apply Issue-estoppels concerned with the judicial establishment of a proposition of law or fact between parties. It depends upon well-known doctrines which control the reiteration of issues which are settled by prior litigation."
"The emphasis here again would be seen to be on the determination of, criminal liability. In Marz v. The Queen (96 C.L.R. 62) the High Court of Australia said "The Crown is as much precluded by an estoppels by judgment in criminal proceedings as is a subject in civil proceedings The laws which gives effect to issue estoppels is not concerned with the correctness or incorrectness of the finding which amounts to an estoppels, still less with the process of reasoning by which the finding was reached. in fact It is enough that an issue or issues have been distinctly raised or found. Once that is done, then, so long as the finding stands, if there be any subsequent litigation between the same parties, no allegations legally inconsistent with the finding, may be made by one of them against the other."
Here again it is to be remembered that the principle applies to two criminal proceedings and the proceeding with which we are now concerned is not a criminal proceeding. We therefore hold that there is no substance in this contention.