The Kerala High Court while refusing to expunge remarks against a Police Officer stated that it was neither mandatory nor possible to hear him as the case was decided based on material and evidence.

The Court was considering a Criminal Miscellaneous Case filed under Section 482 of the Code of Criminal Procedure seeking expunging of adverse remarks made against him by the Fast Track Special Judge.

The single-bench of Justice A. Badharudeen observed, ".....nothing argued otherwise to establish that the accused was neither released nor the mobile phone containing vital evidence was not returned over to the petitioner, as found by the learned Special Judge. Thus the petitioner’s dereliction found by the Special Judge in no way held as illegal, irrational or improper to revisit the same by way of expungement. Therefore, in such cases, hearing of the delinquent officer is neither mandatory nor possible."

The Petitioner was represented by Advocate T.R. Rajesh while the Respondent was represented by Senior Public Prosecutor Renjit George.

The case was registered against the accused for commission of offences punishable under Sections 447, 354-C and 324 of the Indian Penal Code as well as Section 15 of the Protection of Children from Sexual Offences Act, 2012 by the accused. Thereafter, the accused filed an application under Section 227 of Cr.P.C. seeking discharge contending that none of the offences would attract against him. The Special Judge addressed the contention raised by the accused and discharged the accused for the offences punishable under Sections 201 and 354 of IPC as well as Section 15 of the POCSO Act and allowed prosecution against him for the offences punishable under Sections 447 and 324 of IPC. Accordingly, Government also initiated disciplinary action against the petitioner.

Counsel for the Petitioner argued that the petitioner had only supervisory jurisdiction in the matter of investigation and the Special Judge made castigating remarks against the petitioner without giving him an opportunity of being heard. He also contended that High Court has inherent jurisdiction to expunge remarks made by it or by a subordinate court to secure the ends of justice and to maintain dignity as well as to prevent an abuse of process of court. He placed reliance on Supreme Court decisions in State of U.P v. Mohammad Naim, Niranjan Patnaik v. Sashibhusan Kar and another and A.M.Mathur v. Pramod Kumar Gupta and others.

On the other hand, the Public Prosecutor submitted that though notice was not served upon the petitioner, as per the impugned order, it was found by the learned Special Judge from the materials available, that the accused and the mobile phone containing the overt acts were handed over to the Inspector of Police. However, he was freed and mobile phone was also handed over back to him without registering an FIR or conducting any investigation. The FIR was eventually registered but the court also observed that if the mobile phone seized from the accused would have been properly examined at the Forensic Science Laboratory immediately on its seizure itself, the same should have been the best evidence to maintain the offence under Section 354(C) of IPC.

However, by the act of the Circle Inspector of Police, who immediately freed the accused and released the mobile phone without registering crime, he facilitated the accused to destroy the contents of the mobile phone, and eventually when registering the FIR after 15 days, the crucial evidence was already destroyed. It was at this juncture, the Special Judge recommended departmental/disciplinary action and according to the Public Prosecutor, in such a case, there is no necessity to give an opportunity of hearing to the officer concerned.

It was pointed out by the Public Prosecutor that while passing judgments and orders on the basis of evidence and the materials available, if the court issues notice to the person against whom some attending circumstances found, which may be adverse, the same would delay pronouncement of orders and judgments and therefore the contention raised by the petitioner herein in this regard would not succeed.

The Court affirmed that the High Court has the inherent jurisdiction to expunge the remarks made by it or by a subordinate court to secure the ends of justice; the jurisdiction is however of an exceptional nature and has to be exercised in rare and exceptional circumstances.

"Harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct," the court observed.

The Court noted that while deciding on the alleged offences under Section 354C of IPC and under Section 15 of the POCSO Act the Special Court was forced to address whether ingredients for the said offences are made out, prima facie, and, in turn, the Special Court also addressed the attending circumstances, whereby the relevant evidence, which should have, if tendered, would show the said offences also.

But the material dereliction on the part of the petitioner led to discharge of the accused for the offences under Section 354C of the IPC as well as under Section 15 of the POCSO Act, on merits, by the Special Judge. Accordingly, the Special Judge found that there was purposeful and conscious act on the part of the Inspector of Police, to save the accused by facilitating the destruction of evidence. The Court asserted that in view of Supreme Court's decision in Niranjan Patnaik v. Sashibhusan Kar and another’s such a finding by the Special Judge was absolutely necessary for taking an appropriate decision of the discharge petition as an integral part thereof.

The Court sided with the Special Judge stating that in such a case, it was difficult to issue notice to the Circle Inspector of Police before making observations.

"It is also relevant to note that, during hearing of this petition also, when the learned counsel for the petitioner is asked as to why the finding of the Special Judge was unwarranted, the learned counsel submitted that the petitioner has no criminal antecedents and that he did not have any precedents of dereliction of duty, but nothing argued otherwise to establish that the accused was neither released nor the mobile phone containing vital evidence was not returned over to the petitioner, as found by the learned Special Judge," the Court observed.

The Petition was accordingly rejected.

Cause Title: Shaju Jose vs. The State Of Kerala

Click here to read/ download Judgement:




Kerala High CourtEvidenceShow cause notice

Sheetal Joon