State (NCT of Delhi) v. Nilesh Mishra

16. In compliance with the order dated 27.09.2022 passed by this Court in CRL. MC. 4947/2022, a status report dated 28.10.2022 was filed under the signatures of the DCP with the approval of the Commissioner of Police.

17. The learned Trial Court vide order dated 28.10.2022 noted that undisputedly the case property was seized and no order for the release of the case property was passed. It was noted that despite no such order being passed, the police chose to release the case property which was being justified by stating that the same was the practise being followed. Consequently, the learned Trial Court made the following remarks: “Issue notice to the DCP with direction to disclose details of all the cases in which the Delhi Police adopted the illegal practice of releasing the case property without seeking permission from the Court in the case in which the case property was seized. The DCP will also disc lose details of all the police officials involved in the decision making and supervision of the illegal release of the case property. In view of the order dated 27.09.2022 passed by the Hon'ble High Court, the DCP will file his report after bringing it to the notice of Commissioner of Police. Copy of this order be sent along with the notice.”

18. The State seeks expunction of the remarks/strictures passed by the learned Trial Court by the aforementioned orders dated 04.07.2022, 04.08.2022, 21.09.2022 and 28.10.2022 in CR Case NO. 466247/2015. CRL.M.C. 5979/2022

19. By way of the captioned petition, the State challenges the orders dated 08.09.2022 and 14.10.2022 passed by the learned Trial Court in CR Case No. 214/2021.

20. The FIR in this case being FIR No. 170/2020 dated 11.11.2020 was registered under Section 25 of the Arms Act, 1959.

21. The learned Trial Court vide order dated 08.09.2022 noted that the examination-in-chief of ASI Rahisuddin was partly recorded and further testimony was deferred for want of case property. The learned Trial Court noted that despite service of summons, the case property had still not been produced. It was noted that on account of the non production of the case property, the testimony of the witness again could not be recorded on the date and that the witness would have to be discharged un-examined.

22. The learned Trial Court also took note of multiple cases wherein the Crime Branch had failed to produce the case property. Consequently, the following remarks/observations were made: “Despite the repeated directions given by this Court which has evidently fallen on deaf ears of the Commissioner and the Special Commissioner of Police, Crime Branch, case property has again not been produced. Issue notice to the Special Commissioner of Police with direction to show cause why action be not taken against him for nonproduction of case property and non-compliance of Court order. disclose the action taken by the police on receiving the aforesaid Court orders in which it was repeatedly noted that case property is not been produced.”

23. Subsequently, a status report dated 06.10.2022 under the signatures of the Special Commissioner of Police was filed to explain the reason behind the non-production of the case property. The learned Trial Court vide order dated 14.10.2022 recorded that the Special Commissioner had filed his report, however, the same was not complied with by the Commissioner of Police. Consequently, the following observations were made by the learned Trial Court: “However, the Commissioner has not complied with the direction of the Court and has not submitted his report. However, a report of the DCP, Crime-1 has been received in which it has been stated that the report is being filed with the approval of the Commissioner of Police. When the Commissioner of Police has been directed to file his report, it is only him who is required to file report and only then there will be compliance of the Court direction. There is no direction of the Hon’ble High Court in the present case that report can be filed by any other police officer after approval of the Commissioner of Police. The relief granted to the Delhi Police by the Hon’ble High Court in other cases cannot be granted by this Court, that too when there is no such request made to this Court. This Court cannot review its order and permit filing of reports by an officer who is not authorized to do so. disclose why direction of the Court has not complied with and why action be not taken against him for non-compliance of Court order.”

24. By way of this petition, the State seeks expunction of the remarks/observations made by the learned Trial Court vide orders dated 08.09.2022 and 14.10.2022 in CR Case 214/2021. Submissions

25. The learned Additional Standing Counsel for the State submitted that the learned Trial Court erred in making scathing remarks/observations while passing the impugned orders. He submitted that while administering justice, the learned Trial Court has the liberty to observe on the inaction on the part of the investigating authority after the conclusion of the trial.

26. He submitted that the learned Trial Court vide impugned orders dated 12.08.2022 and 12.09.2022 in CR Case 3350/2022 issued directions to the Commissioner of Police for taking action as directed by the order dated 12.08.2022 and submit action report. He submitted that such direction to submit a report prejudges action/inaction on the part of the investigating authority and other police officers.

27. He submitted that the Hon’ble Apex Court in a catena of decisions has made observations that scathing remarks ought not to be made. He relied upon the decision of the Hon’ble Apex Court in A M Mathur v. Pramod Kumar Gupta and Others: (1990) 2 SCC 533to submit that judicial restraint should be exercised and intemperate language should be avoided while passing judgements.

28. He further submitted that such remarks directing enquiry amidst prosecution evidence would have the impact of prejudicing the entire case of the prosecution.

29. He submitted that the learned Trial Court also made observations/remarks regarding the arrest and non-arrest of the accused persons. He submitted that the law is well settled on the aspect that the power to arrest is within the discretion of the investigating officer.

30. He submitted that in order to comply with the impugned orders, certain reports under the signatures of the DCP with the due approval of the Commissioner of Police were submitted before the learned Trial Court. He submitted that the same was however not considered to be compliance on the part of the Commissioner.

31. He submitted that remarks such as “deaf ears of the Commissioner” are derogatory in nature. He further submitted that such scornful remarks would have a devastating impact on the career of the Senior officers and subordinate staff. He consequently submitted that the such remarks/observations be expunged from the impugned orders. Analysis

32. From a perusal of the impugned orders, it is apparent that the learned Trial Court has made the remarks in relation to the lapse on the part of the investigating authority to preserve and produce the case property or in relation to the manner in which the investigation was conducted.

33. In CRL.M.C. 4930/2022 & CRL.M.C. 6801/2022, the learned Trial Court was considering an application for grant of bail preferred by the respondent. The FIR was registered on an allegation that the accused persons, on the pretext of selling a rice-puller, had cheated the complainant of several lakhs of rupees. While dismissing the bail application of the respondent, the learned Trial Court vide order dated 12.08.2022 made certain observations pertaining to the 4 year delay in the registration of the FIR, the delay in arrest of the accused. The learned Trial court also made observations regarding the arrest and non-arrest of the accused persons.

34. It was noted that appropriate steps were not taken to obtain bailable warrants and for issuance of process under Section 82 of the Code of Criminal Procedure, 1973 against those accused persons who were absconding. The learned Trial Court also noted that while the decision to arrest was discretionary in nature, such discretion should not be exercised arbitrarily. Consequently, notice was issued to the Special Commissioner of Police with direction to examine the reasons for which the other accused persons were not arrested. Alternatively, the Special Commissioner of Police was directed to examine why steps had not been taken to initiate proceedings to declare the absconding accused persons as proclaimed offenders.

35. A report was subsequently filed under the signatures of the DCP with the approval of the Special Commissioner of Police. The learned Trial Court vide order dated 12.09.2022 observed that the Special Commissioner of Police failed to file any report. It was noted that even the report filed by the DCP did not disclose if any enquiry was conducted against the delinquent officers. The learned Trial Court then went on to note that the Special Commissioner was bound to disclose whether there was any arbitrary exercise of discretion which he failed to do so. Consequently, a show cause notice was issued to the Special Commissioner of Police for non-compliance with the Court order. A notice was also issued to the Commissioner of Police with directions to examine the reasons for non-compliance of the directions given to the Special Commissioner of Police. The Commissioner of Police was further directed to examine why the other accused persons were not arrested, and had the other persons been absconding, why steps were not taken to initiate proceedings to declare such accused persons as proclaimed offenders.

36. Subsequently, a status report dated 22.10.2022 was filed by the DCP with the approval of the Commissioner of Police The learned Trial Court vide order dated 02.11.2022 noted that despite the transfer of investigation to a new police officer, other accused persons were not arrested. Observations were made in regard to the arbitrary exercise of discretion in relation to the arrest of the accused persons. Further, fresh notice was issued to the Commissioner of Police with direction to ensure that further investigation in the matter is carried out fairly and under the supervision of a competent senior police officer.

37. In CRL.M.C. 4947/2022 & CRL.M.C. 5780/2022, while at the stage of evidence, the learned Trial Court noted that the vehicle, that was subject matter of theft, had not been produced despite repeated instructions. Consequently, vide order dated 04.07.2022, the learned Trial Court issued notice to the Commissioner of Police to ensure that either the vehicle which formed the subject matter of three cases or the photographs taken at the time of release be filed.

38. Subsequently, vide order dated 04.08.2022, the learned Trial Court noted that the photographs had still not been filed. Consequently, it was noted that no cogent reasons had been disclosed for not filing the photographs. It was noted that the Commissioner failed to conduct an enquiry to see why the photographs had not been found. Remarks were also made to the effect that it was also not disclosed whether the photographs were even taken before releasing the vehicles.

39. The learned Trial Court vide order dated 21.09.2022 noted that notices were issued to the Commissioner of Police, however, no report had been filed. It was noted that reports of junior officers in the police had been received including one filed by the DCP which stated that the same had been filed for the Commissioner of Police. Certain observations with regard to non-production of case property in several cases were also made. The learned Trial Court further issued fresh notice to the Commissioner of Police to inform the Court whether he had received the previous notices issued by the Court. Similarly, vide order dated 28.10.2022, the learned Trial Court issued notice to the DCP and directed him to disclose about the practice of releasing case property without seeking permission of the Court.

40. In CRL.M.C. 5979/2022, vide order dated 08.09.2022, the learned Trial Court noted that the examination-in-chief of ASI Rahisuddin could not be carried out for want of case property. In that regard, the learned Trial Court made certain remarks regarding nonproduction of the case property and issued notices to the Commissioner of Police with direction to disclose the action taken by the police on receiving the Court orders which repeatedly made observations regarding non-production of case property. Notice was also issued to the Special Commissioner of Police with direction to show why action should not be taken against him for non production of the case property.

41. The short point that falls for the consideration of this Court is thus whether such remarks/strictures could have been passed by the learned Trial Court during the course of hearing.

42. It is not in doubt that the orders passed by the Courts ought to be obeyed in order to maintain the majesty of the Court. Further, it is also not in doubt that judicial officers can pass directions and observations to indicate the lapse on the part of the investigating authority or fault, if any, in the conduction of the investigation. However, while noting so, it is also pertinent to mention that the use of vituperative remarks or those that tend to impeach the credibility of the investigating authority ought to be avoided.

43. It is pertinent to note that the Delhi High Court Rules for ‘Practice in the Trial of Criminal Cases’ under Chapter I, Part H, Section 6 notes as under:

44. The Hon’ble Apex Court in A M Mathur v. Pramod Kumar Gupta and Others: (1990) 2 SCC 533 emphasised the importance of exercising judicial restraint while administering justice and observed as under: “12. It is true that the judges are flesh and blood mortals with individual personalities and with normal human traits. Still what remains essential in judging, Justice Felix Frankfurter said: [ The Judiciary and Constitutional Politics — Views from the Bench, Mark W. Cannon and David M.O.'s Brien p. 27] “First and foremost, humility and an understanding of the range of the problems and (one's) own inadequacy in dealing with them, disinterestedness... and allegiance to nothing except the effort to find (that) pass through precedent, through policy, through history, through (one's) own gifts of insights to the best judgment that a poor fallible creature can arrive at in that most difficult of all tasks, the adjudication between man and man, between man and state, through reason called law.”

13. Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be constant theme of our judges. This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might better be called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process.”

45. In the case of State of West Bengal v. Mir Mohammad Omar and Others: (2000) 8 SCC 382, the Hon’ble Apex Court noted that even when the flaw in the investigation results in acquittal of the accused, yet the Courts should ordinarily refrain from making castigating remarks, and observed as under:

system, ill-equipped machinery they have to cope with, and the traditional apathy of respectable persons to come forward for giving evidence in criminal cases which are realities the police force have to confront with while conducting investigation in almost every case. Before an investigating officer is imputed with castigating remarks the courts should not overlook the fact that usually such an officer is not heard in respect of such remarks made against them. In our view the court need make such deprecatory remarks only when it is absolutely necessary in a particular case, and that too by keeping in mind the broad realities indicated above.”

46. A Co-ordinate Bench of this Court in State v. Yogender Singh: 2015 SCC OnLine Del 14203 when dealing with a challenge to an order passed by the learned Trial Court whereby the Commissioner of Police was directed to take action against the concerned SHO, it was observed as under:

holds that law has been flouted and, therefore, action be taken against the concerned persons. The disciplinary enquiry, therefore, would only be on paper when the offence is held by the court to have been committed.

17. The observations of the Court with regard to the failure of the investigating agency in taking prompt action is justified and is not being interfered with. What is unnecessary and unwarranted is the direction to the Commissioner of Police for taking action against erring police officials and submission of ATR in that regard. Such directions cannot be countenanced in the eyes of law.”

47. From a perusal of the impugned orders, it is apparent that the remarks were made in regard to the failure on the part of the investigating agency to carry out the investigation in a proper manner. The impugned orders further manifest that despite numerous orders, case property/photographs had not been produced. While the anguish of the learned Trial Court is not without reason, yet use of disparaging remarks that tend to lower the credibility of the investigating authority ought to be avoided. If the learned Trial Court was concerned with the manner of the conduction of investigation, the Court could simply have recorded the fact. However, use of castigating remarks, showcause notices to the Commissioner of Police seeking action taken against the officers, manner of enquiry, etcetera, in the opinion of this Court, cannot be sustained.

48. It is also apparent that the learned Trial Court in CRL.M.C. 4930/2022 & CRL.M.C. 6801/2022 vide orders dated 12.08.2022 and 12.09.2022 had made certain observations in regard to the manner of the investigation carried out by the investigating agency and the arrest of the accused persons while considering the application for grant of bail.

49. It is well settled that while considering an application for grant of bail, the Court only ought to decide the question of grant or dismissal of bail. The Court thus cannot pass directions/strictures while considering an application for grant of bail. The Hon’ble Apex Court in State v. M Murugesan and Another: (2020) 15 SCC 251 while considering the question regarding the scope of jurisdiction of Court when considering an application under Section 439 of the CrPC had observed as under:

50. Similarly, in Sangitaben Shaileshbhai Datanta v. State of Gujarat: (2019) 14 SCC 522 the Hon’ble Apex Court while examining a question where the High Court after granting bail to the accused had also ordered the accused and their relatives to undergo scientific test, observed as under:

statutory requirements. While adjudicating a bail application, Section 439 of the Code of Criminal Procedure, 1973 is the guiding principle wherein the court takes into consideration, inter alia, the gravity of the crime, the character of the evidence, position and status of the accused with reference to the victim and witnesses, the likelihood of the accused fleeing from justice and repeating the offence, the possibility of his tampering with the witnesses and obstructing the course of justice and such other grounds. Each criminal case presents its own peculiar factual matrix, and therefore, certain grounds peculiar to a particular case may have to be taken into account by the court. However, the court has to only opine as to whether there is prima facie case against the accused. The court must not undertake meticulous examination of the evidence collected by the police, or rather order specific tests as done in the present case.

7. In the instant case, by ordering the abovementioned tests and venturing into the reports of the same with meticulous details, the High Court has converted the adjudication of a bail matter to that of a mini trial indeed. This assumption of function of a trial court by the High Court is deprecated.” (emphasis supplied)

51. Consequently, the learned Trial Court while considering the application for grant of bail cannot pass directions/strictures since the jurisdiction of the Court on such an occasion is limited to either the grant or dismissal of bail of the accused pending trial.

52. It is not in doubt that the orders of the Court must be obeyed and complied with. Further, no individual shall be allowed to diminish the authority and majesty of the Court. However, scathing remarks tend to have lasting consequences. It cannot be overlooked that every word that forms part of the record/judicial order gains permanence.

53. For this reason, strong criticism, vituperative remarks, may have a devastating impact on the reputation and career of the officials involved in the case. Such remarks, as has been observed by Courts in a catena of decisions, are not only unnecessary but also have serious consequences on the careers of public servants.

54. In view of the foregoing discussion, the remarks/observations/strictures passed by the learned Trial Court vide orders dated 12.08.2022, 12.09.2022, 02.11.2022 in CR Case NO. 3350/2022, orders dated 04.07.2022, 04.08.2022, and 21.09.2022, 28.10.2022 in CR Case No. 466247/2015, orders dated 08.09.2022 and 14.10.2022 in CR Case No. 214/2021 are expunged.

55. The present petitions are allowed in the aforesaid terms. Pending applications stand disposed of.

56. A copy of this judgment be placed in all the matters. AMIT MAHAJAN, J FEBRUARY 7, 2025