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1994 Supreme(Bom) 419
IN THE HIGH COURT OF BOMBAY
V.A. Mohta and Vijay Bahuguna, JJ.
Arun R. Gupte.... Petitioner.
Versus
The State of Maharashtra.... Respondent.
Criminal Writ Petition No. 1453 of 1993, decided on 12-8-1994.
Advocates appeared :
C.R. Dalvi with Shirish Gupte, for petitioner.
D.T. Palekar, A.P.P., for the State.
Headnote:Section 353-Court-To be free and fearless-But adverse remarks in judgment and order even if necessary to be couched in a sober and moderate language.
Passing of unjustified adverse remarks against any person is a serious matter for the person concerned. It can do irreparable damage to him since those remarks can be used against that person for several purposes. Even if the Higher Courts exonerate him subsequently by making contrary observations they may not be known and damage done cannot be undone thereby. The only in which High Court can effectively prevent this damage is by ordering the unjustified remarks to be expunged. Hence, it is not only the power of the High Court to prevent such disaastrous result but also its duty to do so. No doubt it is the duty of the Courts to state the truth as they find it and if truth hurts, they cannot soften the hurt by mixing it with falsehood, Occasions no doubt arise when this unpleasant duty is to be performed and remarks against conduct of someone have to be passed. But this has to be done in a dignified manner and in the language couched with decorum and restraint.
Sections 353, 482-Cooosel-Adverse remarks against when can be expunged
Held-It is obvious that the Magistrate had acted against judicial decorum and propriety in calling upon the litigant before him to take action against the lawyer and to report the action taken to the Magistrate There could be more than one reason for the petitioner to leave the Court. The petitioner was not asked any question on the subject. The petitioners version is that he had received the report that his son fallen ill and hence he was in a hurry to leave the Court-room. That possibility cannot be ruled out. But assuming that he had left the Court-room in a huff, his reaction was human, since he had every reason to be agitated. It is ideal to avoid expression of strong reactions in objection all manner in the Court-room even when there are reasons to be provoked. But in practice maintenance of decorum and dignity in the Court cannot always be a one way traffic. Every departure from the expected behavior does not call for personal strictures in the judgment and/or stringent action. In the instant case, release of a foreign national accused of such serious offence within a period of eleven days of arrest was unusual specially when prima-facie the prosecution had wealth of material against him. Rejecting prayer for staying the order at least for few days to enable the Department to move the High Court was most unusual. Not making even precaution in the order to secure presence of the accused for investigation was really astonishing. No wonder if in such circumstances the Senior Department Counsel lost his balance of mind for a moment. The petitioner had brought to the notice of the magistrate that there was every likelihood of the accused Jumping the ball This feature was not even noticed by the Magistrate in his order. The correctness of the stand of the department was fully endorsed by the High Court by quickly setting aside the order granting bail. Bail even during this short period, the apprehended event took place. The accused filed away from the country and has not been nabbed so far. An accused thus escaped from clutches of law only because of the totally untenable and unreasonable attitude displayed by the Magistrate.
Section 482-Constitution of India, Article 226-High Court-Inherent power of-High Court can expunge unjustified strictures passed by subordinate Court.
It is true that a normally the validity of any order of Criminal Court has to be challenged either by way of appeal or revision under the Code of Criminal Procedure before appropriate forum. But High Court has ample power to judicially correct any part of the order of subordinate Judge under inherent powers saved by Section 482 Cr. P. C. Hence power of High Court to expunge unjustified remarks when there is neither appeal nor revision before it, is ample even under the ordinary law. That such jurisdiction exists under Article 226 of the Constitution is beyond controversy. The power however is of an extra ordinary character and has, therefore to be exercised with care and caution and only in rare cases.
2. It is unfortunate that occasion has arisen for him to be a petitioner in the Court. The petition seeks expunction of unjustified adverse remarks reproduced in prayer (a) of the petition passed against him by the Chief Metropolitan Magistrate (Shri S.A. Merchant) in an order granting bail in R.A. No. 265 of 1993 dated 5-11-1993 to a foreign national apprehended under the Customs Act.
3. Joseph Hudec - a Czech Republic National, resident of Prague was found in possession of 52 contraband gold bars collectively weighing 6063.2 grams and valued at Rs. 21,82,750/- IMV and Rs. 27,10,250/- IMV on his arrival from Singapore by flight No. 412 on 27-10-1993 at Sahar International Airport, Bombay. His statement under section 108 of the Customs Act was recorded, wherein possession of contraband gold was admitted. He was arrested and produced before the Magistrate on 27-10-1993. He was remanded in custody till 5-11-1993, when he was again produced before the Magistrate. He made an application for release on bail. The petitioner represented the Customs Department, and seriously opposed the release of the accused on bail within such a short period, inter alia, on the ground that he was a foreigner and could flee from India. He also invited attention of the Court to increasing incidents of foreigners jumping bails. The learned Magistrate, without even considering the submission of the Customs Department about the possibility of the accused jumping the bail, straight-way ordered his release on bail on that very day on the sole ground that period of 11 days was sufficient to complete the investigation.
4. When the last part of this unusual order for bail was being dictated, the petitioner made a request for staying the order for some time since the Department wanted to challenge the order in the High Court. Stay, according to the petitioner, was absolutely necessary since there was every likelihood of the accused jumping the bail and fleeing from country. That prayer was also rejected by the Magistrate.
5. After rejecting the prayer for stay, the learned Magistrate observed :
"Ld. Prosecutor in presence of so many advocates in the Court room made a statement that if stay was not given, it is left to the Court and it should do whatever it likes. By uttering these words Shri Gupte throwing the decorum of the Court to the wind rushes out of the Court room. The behaviour of the Ld. Prosecutor in my opinion is no less than the contemptous behaviour.
I direct the Registrar to send the copy of this order to the Collector of Customs (Preventive), Greater Bombay with direction to him to take necessary action in the matter against the Ld. Prosecutor Shri Arun Gupte and inform the Court as to what action he has taken in the matter within 15 days of the receipt of the copy of this order. Further action in the matter to be taken against the Ld. Prosecutor, if found necessary on receipt of the report from the Collector of Customs. The Registrar to forward the copy to the Collector immediately."
6. It is true that a normally the validity of any order of Criminal Court has to be challenged either by way of appeal or revision under the Code of Criminal Procedure before appropriate forum. But High Court has ample power to judicially correct any part of the order of subordinate Judge under inherent powers saved by section 482 Cr. P.C. Hence power of High Court to expunge unjustified remarks when there is neither appeal nor revision before it, is ample even under the ordinary law. That such jurisdiction exists under Article 226 of the Constitution is beyond controversy. The power however is of an extra
