Balbir Singh Inspector v. State of NCT of Delhi & Anr.

10. If the learned Judge's reasoning to make the impugned remarks is taken to its logical conclusion, it would mean that whenever a superior court sets aside a finding of a lower court, which is patently wrong, the former gets a charter to make vituperative remarks against the latter simply because it had recorded such a finding. Before drawing any conclusion that an inferior body or court has recorded a wrong finding with an ulterior motive or for an oblique purpose the superior body or court, as the case may be, must demonstrate that there are materials — other than the patently wrong finding — which impels it to so conclude. Else, the conclusion would be presumptuous and justice and fair play would be casualties.”

12. In State of W.B. v. Mir Mohammad Omar and Others, (2000) 8 SCC 382, the Supreme Court observed that Courts should ordinarily resist from castigating investigation even while ordering acquittal and relevant paragraph is as follows:-

13. In A.M. Mathur v. Pramod Kumar Gupta and Others, (1990) 2 SCC 533, the Supreme Court emphasized and highlighted the importance of exercising judicial restraint as under:-

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.”

14. In Pramod Kumar Jha (supra), the Supreme Court set aside the direction given in the impugned order for initiation of departmental proceedings against the IO of the case and held that if there was any lapse on the part of the investigating officer, the Court should have only recorded that as a fact but could not have adopted a course of directing departmental action and after finding a person guilty. Relevant passage from the order is as under:- “We feel that the direction given for initiation of the Departmental Proceedings and other directions should not have been given in the judgment. All that the Court could have done if it felt that there was lapse on the part of the Investigating Officer, to record this fact. But going further and directing that the Departmental Proceedings should be initiated and further findings which virtually finds him guilty are certainly not the permissible course. The appeal is allowed to that extent. We direct deletion of the directions given by the trial court as upheld by the High Court.”

15. As far back as in 1963, the Supreme Court in the case of Pandit Ishwari Prasad Misra v. Mohammad Isa, 1962 SCC OnLine SC 88, while dealing with strictures passed by the High Court against one of the subordinate judicial officers, emphasized the need to adopt judicial restraint in using strong language and imputing corrupt motives for the reason that the judge against whom imputations are made has no remedy in law to vindicate his position. A Co-ordinate Bench of this Court in Rakesh Chand v. State of NCT of Delhi, 2015 SCC OnLine Del 14193, while dealing with the similar situation observed as follows:-

3. The petitioners Rakesh Chand (petitioner in W.P(Crl.) No. 207/2015) and Rajinder Singh (petitioner in W.P(Crl.) No. 209/2015) were the then SHO of Police Station Bhalswa Dairy and investigating officer of FIR No. 165/2010 respectively. Both the petitioners are presently working with Delhi Police. Both of them are aggrieved by the observation/direction of the Trial Court in judgment and order dated 15.05.2014/29.05.2014 passed in Sessions Case No. 105/2013 in connection with FIR No. 165/2010 (P.S. Bhalswa Dairy).

4. The State is also aggrieved by the aforesaid observation and direction of the Trial Court and seeks deletion of the observations and directions given in para 152 of the Trial Court judgment.

5. Para 152 of the judgment reads as hereunder:- “Before ending, in view of my observations made with regard to the statutory non compliance of the provisions of the Code of Criminal Procedure (Section 46(4) Cr.P.C) while arresting the lady accused Renu at 12.40 AM (midnight) confirming her detention/confinement to be illegal, an offence under the Penal Code, 1860, I direct that appropriate action both legal and departmental in accordance with law be initiated against the erring officers i.e. SI Rajender Singh and the then SHO Police Station Bhalswa Dairy Inspector Rakesh Chand for the same. Copy of this judgment be placed before the Ld.CMM concerned. Commissioner of police, Delhi and GNCT of Delhi (Home Department) through the Director of Prosecution, Delhi for compliance under intimation to this Court.”

6. It has been submitted on behalf of the petitioners that without hearing their point of view or appreciating the circumstances under which a particular accused person was arrested, they have been condemned. The Trial Court has directed for a legal and departmental action in accordance with law as against the petitioners. They did not have any opportunity to explain away their conduct or to offer any defence.

7. Learned senior counsel appearing for the petitioners submitted that the aforesaid observation/direction of the Trial Court is highly unwarranted, not in keeping with the legal provisions, does not take into account the factual matrix and is largely, lapsus linguae.

23. Even if there was a lapse on the part of the petitioners as police officers, what the Trial Court was required to do was to record such lapse and indicate that in future such lapses should not occur. Straightway directing the administrative authorities/superior police authorities to take legal/departmental action against the petitioners only meant that the petitioners were also convicted along with the accused persons in the present case and for proper sentencing, their cases were sent to the superior police authorities. This procedure is not mandated either by law or practice.

25. In any view of the matter, the observations/directions made in para 152 of the judgment which is sought to be expunged in the present petition is held to be not in consonance with the factual matrix of the case, practice and procedure and is, therefore, unwarranted.

26. The same is, therefore, deleted from the judgment. Thus para 152 of the judgment stands expunged and deleted.”

16. In State v. Yogender Singh, 2015 SCC OnLine Del 14203, this Court was again called upon to decide a challenge to an order of the Trial Court directing the Commissioner of Police to take action against the concerned IO and while directing expunction of the direction, the Court observed as follows:-

begun monitoring not the investigation of the case but the process of taking disciplinary action against the police officials. The Commissioner of Police, is left with no choice, once a Court of law 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.”

17. It would be useful to allude to another judgment of the Co-ordinate Bench of this Court in Ajit Kumar v. State (NCT of Delhi), 2022 SCC OnLine Del 3945, where the Trial Court made strong observations against the concerned SHO and passed strictures, so much so observing that the SHO had no sense of responsibility and devotion towards duty etc. and directed the Commissioner of Police to take corrective measures and action against the SHO. After referring to the various judgments on the issue, the Court observed that the remarks and directions were unwarranted and impermissible in law and not even relevant for deciding the matter in question. Relevant passages from the judgment are as under:-

40. The learned Trial Court could have forwarded the proceedings and the issue faced by the Court as well as the act of disobedience to the concerned Commissioner of Police Delhi to take action as per their departmental Standing Orders and the rules applicable to them. In the relevant cases, recourse could have been taken to the Delhi Police Act and the relevant Sections under law under which the Court can issue notice and initiate appropriate action if so warranted in a particular case. However, to direct the authority concerned to initiate action as mentioned in the impugned order and thereafter, ask for compliance to be filed and pass remarks as in the impugned order was unwarranted in the facts and circumstances of the case.

41. Judgments and orders passed by the courts are often permanent in nature, so is at times the stigma attached to a person suffered by virtue of an uncalled for remark unwarranted in the facts and circumstances of a particular case. As adjudicatory force of the country, judicial restraint as warranted by law and judicial proceedings is one of the qualities of a judicial officer.”

18. The same Bench in a subsequent judgment in Sanjay Kumar Sain v. State of NCT of Delhi, 2023 SCC OnLine Del 1260, under similar circumstances observed as under:-

44. As also earlier directed in Ajit Kumar v. State (NCT of Delhi) (supra), this Court once again, by way of abundant caution, directs all the learned Judicial Officers to exercise utmost restraint and judicial discipline while deciding the cases before them and refrain from judging the credibility of police officers and passing scathing and disparaging remarks against them, when the same are not required for the adjudication of matters before them.”

19. Coming back to the facts of this case, reading of the impugned order shows that the bail application of the Accused was taken up by the Sessions Court at 10:28 AM and noting that nobody had appeared on behalf of the SHO, PS: Kalkaji, no reply was filed and the victim was not produced, as also noting that there was repeated non-compliance with the Court orders, the Sessions Court directed that the Petitioner be suspended immediately by the Commissioner of Police, Delhi and strict action be taken against the Petitioner. The order further indicates that the matter was taken up at 10:35 AM, when SI Roshan Lal appeared on behalf of the Petitioner and stated that reply was filed but the victim could not be produced. Regarding nonproduction of the victim, it was explained that victim had changed her address and could not be contacted. The Court did not accept the explanation on the ground that the SHO and the IO had almost three weeks to trace the victim but no sincere efforts were made and only lame excuses were being given to waste the time of the Court. It was further observed that Petitioner was flouting the orders of the Court with impunity and there was no change in his conduct, which could not be tolerated.

20. It is unquestionable that orders of the Court have to be obeyed and no one can be permitted to undermine the majesty of the Court. Judicial directions need to be obeyed by all including Police officials and it is open to the Court to pass orders pointing out any disobedience, fault in investigation, etc., however, it is equally settled that it is not the domain of the Courts to pass directions for initiating disciplinary action, as that is the prerogative, jurisdiction and domain of the Disciplinary Authority of the employee concerned. To this extent, there is a clear separation of powers and jurisdictions and powers are not inter-changeable. Courts have, from time to time, come to the protection and rescue of officers and public servants by expunging remarks as well as directions where Courts have overstepped their jurisdiction, as can be seen from the judgments aforementioned. This Court in Ajit Kumar (supra) has observed that every word forming part of a judicial order forms permanent record. Use of denigrating remarks against anyone, especially Police officials, impeaching their credibility and questioning their sense of dedication towards duty, is not the best course adopted by a Judicial Officer. Such a criticism may have a devastating effect on his reputation and professional career. No doubt, Police Officers are duty bound to discharge their responsibilities with utmost conviction and dedication, however, the practical difficulties that they may face in a given situation cannot be glossed over or disregarded by the Courts. This cannot be construed to mean that the Courts lack the power to pass an order if there is serious irregularity or omission or commission of any act directed by the Court and/or a disobedience of its orders. Even where disciplinary authority decides to initiate action the first principle of natural justice ‘audi alteram partem’, cannot be disregarded.

21. In the present case, what the Court finds is that the bail application of the Accused was taken up on 20.08.2022 at 10:28 AM. No one appeared for the State and reply was perhaps not on record. The anguish of the Court dealing with a bail application and not getting response from the State is understandable, but the matter could have been passed over instead of immediately passing an order, castigating the Petitioner. Order shows that the matter was mentioned and taken up 7 minutes later when SI Roshan Lal appeared and apprised the Court that reply had been filed but victim was not traceable at her last known address. This was a plausible and reasonable explanation furnished on behalf of the State since the Accused was in judicial custody since 2017 and the bail application was filed after 5 years and with passage of time, the possibility of the victim having changed her address could not be ruled out. Assuming that the Sessions Court was not satisfied with the explanation given, it was open to the Sessions Court to so record and leave it to the administrative authority to examine the matter and seek explanation of the Petitioner and proceed as per law. Direction to suspend the Petitioner and initiate strict action, as rightly pointed out by the Petitioner was unwarranted, impermissible in law and an overreach of the Court. Petitioner is also right in his submission that the direction is in the nature of a mandate to the Commissioner of Police, Delhi, thereby leaving no discretion with the Disciplinary Authority but to suspend the Petitioner and proceed with the departmental enquiry. This Court also agrees with the Petitioner that serious remarks of dereliction of duty have been made without even giving an opportunity to the Petitioner to explain his conduct, which is against all canons of principles of natural justice. Law on the contours of powers to be exercised by a Court viz-a-viz the Executive/Disciplinary Authorities is no longer res integra and is premised on the two pillars: ‘judicial restraint’ and ‘separation of powers’. In Divisional Manager, Aravali Golf Club and Another v. Chander Hass and Another, (2008) 1 SCC 683, the Supreme Court elucidated on the aspect of essence of judicial powers referring to Montesquieu’s The Spirit of law as follows:-

22. In the opinion of this Court, the direction to initiate disciplinary action against the Petitioner was not only unwarranted but impermissible in law. In the various judicial pronouncements, referred to above, the Courts are categorical in their disapproval of this kind of overreach by the judicial officers beyond their judicial functions. As observed by the Courts from time to time, not only are these kinds of remarks and/or directions unnecessary but also have serious implications on the careers of public servants. In Rakesh Chand (supra), the Court observed that while dealing with task of administering justice, a Judge, no doubt, has to act judicially and express his views but he ought to be circumspect while commenting on the conduct of others and the line of discretion should not be overstepped. What is most important is that by these observations and/or directions, not only is the career of people at stake but this approach also overlooks the settled principle of audi alteram partem i.e. nobody should be condemned unheard. Court further observed that there can be no doubt that judicial orders and directions have to be obeyed and in no way any person can be permitted to undermine the majesty of the Court, however, it must also be kept in mind that the Constitution of India recognizes the Separation of Powers and resort to disciplinary action of a public servant falls within the domain and jurisdiction of his Disciplinary Authority under the respective service rules. It was also observed that if the Sessions Court was of the view that there was any lapse on the part of the Petitioner, which was a contributory factor or the singular reason for acquittal of the accused, the Court was well within its right to bring the fact to the notice of the Commissioner of Police, Delhi, but the decision on whether to initiate disciplinary action or not, ought to have been left to the competent Disciplinary Authority of the Petitioner, under the applicable service rules. In my considered view, power of a Court to point out defects in the investigation and/or misdemeanor etc. of a police officer is unquestionable but cannot be stretched to issuing a direction to the Commissioner of Police to initiate disciplinary proceedings, which is the sole prerogative and power of the Executive.

23. For all the aforesaid reasons, the remarks passed by the Sessions Court in the impugned order dated 20.08.2022 and the direction given for suspension of the Petitioner and initiation of disciplinary action against him, is not in consonance with the well-settled position of law and cannot be sustained. The remarks are accordingly expunged and deleted from the impugned order and the direction to initiate disciplinary action against the Petitioner including suspension, is set aside.

24. Petition stands allowed in the aforesaid terms. Pending application stands disposed of.

JYOTI SINGH, J FEBRUARY 20, 2024