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PUNJAB & HARYANA HIGH COURT
K.L.Gosain and Harbans Singh JJ.
Sardar Lal Singh Kang
Versus
State
Criminal Miscellaneous No. 327 of 1956,
Decided On : SEPTEMBER 5, 1958
CRIMINAL PROCEDURE CODE - SECTION 561A - JURISDICTION OF HIGH COURT TO EXPUNGE REMARKS FROM JUDGMENT OF SUBORDINATE COURT - PRINCIPLES GOVERNING EXERCISE OF JURISDICTION - REMARKS AGAINST WITNESSES AND PARTIES - REMARKS AGAINST PERSONS NOT WITNESSES OR PARTIES - REMARKS BASED ON NO EVIDENCE OR IRRELEVANT EVIDENCE - REMARKS WHOLLY IRRELEVANT TO ANY POINT IN ISSUE - REMARKS BASED ON PRIOR ACT, CONDUCT OR STATEMENT OF WITNESS WITHOUT GIVING OPPORTUNITY FOR EXPLANATION - REMARKS COUCHED IN UNJUSTIFIED OR UNDIGNIFIED LANGUAGE - POWER OF HIGH COURT TO JUDICIALLY CORRECT JUDGMENT OF SUBORDINATE COURT - DISTINCTION BETWEEN THE TWO JURISDICTIONS.
Fact of the Case:
The petitioner, Shri Lal Singh Kang, was examined as P. W. 15 in a trial for murder. During his examination, he stated that Hari Chand, Naib Tehsildar, had told him on 25-7-1955, that Bidhi Chand, P. W. (who was apparently one of the main witnesses in the case) had been detained by the police. He had further stated that the Deputy Inspector General of Police had directed him (Shri Kang) in the Rest House of Nurpur that he should send for Mst. Gurdial Kaur accused to his house and interrogate her there which he declined to do. -He claimed to have verbally informed the District Magistrate about both these incidents. Shri Kanwal Nain, District Magistrate, Kangra, who appeared as P. W. 37, however, denied that any such information was ever passed on to him by Shri Lal Singh Kang. The learned Sessions Judge in this respect believed the statement of Shri Kanwal Nain, District Magistrate, and disbelieved that of Shri Lal Singh Kang. He also dubbed the explanation given by Shri Lal Singh Kang for rushing through the enquiry as insipid. While discussing the evidence of Shri Lal Singh Kang, the Sessions Judge made certain remarks unfavourable to Mr. Kang, who filed this application under Section 581A, Criminal P. C., on 14-7-1956, (Criminal Miscellaneous No. 327 of 1956) praying for the expunction of these remarks.
Finding of the Court:
The High Court held that the remarks objected to were not such as could be ordered to be expunged. The remarks mainly objected to were that Shri Lal Singh Kang, P. W. 13, was by no means favourably inclined towards the prosecution and he tried to make some breaches and land-slides in the prosecution case while he was under cross-examination by the counsel for the accused. The Court found that there were two contradictory statements; that of Shri Kang to the effect that he had given certain information to the District Magistrate and that of the District Magistrate denying this assertion. The learned trial Court, having believed the statement of the District Magistrate, was entitled to arrive at the conclusion that Shri Kang, in making the aforesaid statement, was trying to help the defence and damage the prosecution. The remarks objected to, therefore, form, more or less an integral part of the judgment of the trial Court and could have justifiably been made in view of the conclusions arrived at by him. The Court also noted that in appeal filed by Gurdial Kaur and her husband, against their conviction, a Bench of this Court, on going through the evidence of these two witnesses did not agree with the appreciation of the evidence by the trial Court and preferred the statement of Shri Kang to that of the District Magistrate and accepting the statement of Shri Kang and taking other circumstances into consideration, reversed the findings of the learned trial Court and acquitted the accused. Thus the sting of these observations if any, had been completely taken away by the judgment of the High Court in appeal and Shri Kang has been completely exonerated.
Issues: 1. Whether the High Court has jurisdiction to expunge remarks from the judgment of a subordinate Court? 2. If so, in what circumstances will the High Court exercise this jurisdiction? 3. Whether the remarks made by the trial Court against the petitioner were justified?
Ratio Decidendi: 1. The High Court has jurisdiction to expunge remarks from the judgment of a subordinate Court. This jurisdiction is of an exceptional nature and should be exercised sparingly and in very rare cases to prevent injustice. 2. The High Court will exercise this jurisdiction in the following circumstances: (a) Where the remarks are based on no evidence or on irrelevant or inadmissible evidence; (b) Even if based on proper evidence, they are wholly irrelevant to any point in issue and are not necessary either to the conclusions or for the arguments of the Court concerned; (c) Where such remarks are based on some prior act, conduct or statement of a witness, which has not been brought to his notice, to enable him to furnish an explanation; (d) Where the remarks are couched in unjustified or undignified language. 3. The remarks made by the trial Court against the petitioner were not justified as they were based on the evidence of the District Magistrate, which was later found to be false by the High Court in appeal.
Final Decision: The application was dismissed.
1. On 11-7-1955, one Sita Rani was found dead in the house of Ishar Singh, Station House Officer, Nurpur. S. Lal Singh Kang, a member of the P. C, S., was posted as Sub-Divisional Magistrate, Nurpur during those days. He held an enquiry into the cause of death of Sita Rani on 11-7-1955 and made a report showing that it appeared to be a case of suicide. The case became the target of a good deal of public attention and a further enquiry was held by Shri Kang When he reported that the probabilities were in favour of a murder having been committed by Mst. Gurdial Kaur and that it was not a case of suicide. Later Mst. Gurdial Kaur was tried and convicted by the Sessions Judge, Hoshiarpur, under Section 302, Indian Penal Code, and sentenced to imprisonment for life and her husband Ishar Singh was convicted under Section 201, Indian Penal Code, and sentenced to five years rigorous imprisonment.
2. At the trial Shri Lal Singh Kang was examined as P. W. 15. He was asked to explain why he held the first inquest report late at night and rushed through the proceedings. Shri Lal Singh Kang explained that he had to go on tour the following day and therefore he sat late in the night and finished his inquest. During the course of his examination he also stated that Hari Chand, Naib Tehsildar, had told him on 25-7-1955, that Bidhi Chand, P. W. (who was apparently one of the main witnesses in the case) had been detained by the police. He had further stated that the Deputy Inspector General of Police had directed him (Shri Kang) in the Rest House of Nurpur that he should send for Mst. Gurdial Kaur accused to his house and interrogate her there which he declined to do. -He claimed to have verbally informed the District Magistrate about both these incidents. Shri Kanwal Nain, District Magistrate, Kangra, who appeared as P. W. 37, however, denied that any such information was ever passed on to him by Shri Lal Singh Kang. The learned Sessions Judge in this respect believed the statement of Shri Kanwal Nain, District Magistrate, and disbelieved that of Shri Lal Singh Kang. He also dubbed the explanation given by Shri Lal Singh Kang for rushing through the enquiry as insipid. While discussing the evidence of Shri Lal Singh Kang, the Sessions Judge made certain remarks unfavourable to Mr. Kang, who filed this application under Section 581A, Criminal P. C., on 14-7-1956, (Criminal Miscellaneous No. 327 of 1956) praying for the expunction of these remarks.
3. This miscellaneous application was directed to be heard after the decision of the appeal that had been filed by Mst. Gurdial Kaur and her husband Isher Singh, against their convictions and sentences, as detailed in the earlier part of this order. Both the accused were acquitted by the High Court but in view of the appeal that had been filed by the State before the Supreme Court, the hearing of this application was further adjourned. After the dismissal of the appeal by the Supreme Court, the Hon ble the Chief Justice before whom the matter came, by his order dated 14-4-1958, referred this application for decision to a Division Bench in view of the fact that it raised an important question, namely-
"whether this Court would be justified in expunging remarks on the conduct of a witness when those remarks are necessary to the conclusion of the trial Court or necessary for his arguments."
4. The necessity for this reference arose because of the conflicting opinions which appeared to have been expressed on the matter. According to the latest Bombay view, as given by the Full Bench in State of Bombay v. Nilkanth, AIR 1954 Bom 65-
"........... the jurisdiction under Section 561A judicially to correct the judgment of the lower Court ............ is a very exceptional jurisdiction which should be exercised in the most exceptional cases. .................. A jurisdiction like this is intended to be exercised when remarks are made without any foundation whatsoever, when remarks are made against strange
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