Central Bureau of Investigation v. S K Ghosh & Ors.

12. The scheme of Section 313 Cr.P.C. was analysed by Hon‟ble Apex Court in Parminder Kaur v. State of Punjab (2020) 8 SCC 811. The relevant portion of the said decisions reads as under:

13. Recently, the Hon‟ble Supreme Court in Premchand v. State of Maharashtra 2023 SCC OnLine SC 218 has summarized the principles governing Section 313 Cr.P.C., which are reproduced herein-under for reference:

14. The Hon‟ble Apex Court in Reena Hazarika v. State of Assam (2019) 13 SCC 289 had emphasized the importance of Section 313 in the following manner:

15. Further, in Satbir Singh v. State of Haryana (2021) 6 SCC 1, the Hon‟ble Apex Court has observed as under: “38.6. It is a matter of grave concern that, often, Trial Courts record the statement under Section 313, CrPC in a very casual and cursory manner, without specifically questioning the accused as to his defense. It ought to be noted that the examination of an accused under Section 313, CrPC cannot be treated as a mere procedural formality, as it based on the fundamental principle of fairness. This aforesaid provision incorporates the valuable principle of natural justice “audi alteram partem” as it enables the accused to offer an explanation for the incriminatory material appearing against him. Therefore, it imposes an obligation on the court to question the accused fairly, with care and caution.

38.7. The Court must put incriminating circumstances before the accused and seek his response. A duty is also cast on the counsel of the accused to prepare his defense since the inception of the Trial with due caution...”

16. Thus, a conspectus of the decisions of Hon‟ble Apex Court reveals that examination of an accused under section 313 Cr.P.C. is not a mere formality or futile exercise and it embodies the fundamental principle of audi alterm partem [See also: Sanatan Naskar v. State of West Bengal (2010) 8 SCC 249; Kalicharan & Ors. v. State of Uttar Pradesh (2023) 2 SCC 583]. It is an important step in the trial of a case and is meant to enable an accused to explain incriminating evidence emerging against him, which is put to him by the Court.

17. Before sub-section (5) was added in Section 313 Cr.P.C. by way of an Amendment, the Hon‟ble Apex Court in Mir Mohd. Omar v. State of West Bengal (1989) 4 SCC 436 had held that Courts were not required to consult any prosecutor or counsel as to what questions were to be put to the accused, since it was the Court‟s duty to examine the accused as per law.

18. However, the 154th Law Commission Report, published in the year 1996, had suggested certain changes to Section 313 Cr.P.C., in order to curb the delay in trials. Thereafter, having felt the need to tone up the criminal justice system so as to ensure fair and speedy justice, the Code of Criminal Procedure (Amendment) Bill, 2006 was introduced to incorporate numerous changes in the Cr.P.C., including those suggested by the Law Commission of India in its 154th and 177th Report, and the Bill later culminated into Code of Criminal Procedure (Amendment) Act, 2008. By way of this Amendment of 2008, subsection (5) was added to Section 313 Cr.P.C., which reads as under: “(5) The Court may take help of Prosecutor and Defence Counsel in preparing relevant questions which are to be put to the accused and the Court may permit filing of written statement by the accused as sufficient compliance of this section.”

19. The issue before this Court, in the instant case, primarily raises questions pertaining to interpretation of Section 313(5) of Cr.P.C.

20. Guided by the 154th Report of Law Commission of India, the intent of introducing this provision was to ensure that the delay which was being caused in the trial of cases due to process of framing of questions under Section 313 Cr.P.C was reduced, by permitting the Courts to take help of prosecutors and defence counsels in framing proper and relevant questions which could be put to an accused, as per the scheme of Section 313. However, considering the relevancy and significance of this provision, it cannot be held by any means that the aim of the Legislature was to delegate the duty of framing the relevant questions entirely to the prosecution or defence counsels, and the use of words “may take help” in Section 313(5) is suggestive of the same. Even after introduction of Section 313(5), the power and duty to prepare the questions and put incriminating evidence to the accused continues to vest with the Courts only.

21. The discretion to seek assistance from the prosecutor or defence counsel cannot absolve the Court from its primary duty to personally ascertain what is incriminating and then examine the accused. In other words, it would be too far-fetched to hold a view that the Court‟s power or discretion to seek help of prosecutors in preparing relevant questions would imply that this duty of the Court can be entirely abdicated to the prosecuting agency.

22. Examination of an accused under Section 313 essentially remains a dialogue between the Court and the accused, and this important judicial act has to be performed by the Court itself. It is only the assistance that the Court can seek as per Section 313(5), however, it is always the primary duty of the Court itself to extract the incriminating evidence against the accused from the records of the case and then put the same to the accused and seek his explanation, as the Court is the best judge as to what is incriminating and what is not.

23. In the opinion of this Court, at the stage of examination of an accused under Section 313 of Cr.P.C., the Courts may take assistance of prosecutor as well as defence counsel in preparation of relevant questions, however, for a just and fair trial, it is apt for the Court to base its examination of an accused on its own assessment about incriminating evidence against the accused which has come on record.

24. This Court is constrained to observe that duty of the Court has been tried to be delegated to the prosecuting agency in the present case. The judicial function which is vital for any criminal case has to be performed by the Court itself and not by prosecuting agency. The function and duty of the prosecuting agency is to lead evidence and it is for the Trial Court to ascertain the incriminating material on record on the basis of testimony of witnesses which includes the examination-inchief as well as cross-examination and thereafter put the incriminating evidence to an accused. Needless to say, it is an important stage of criminal trial. It was not the primary duty of the prosecuting agency to prepare the statement of accused and this duty was to be performed by learned Trial Court itself.

25. Thus, petitioner/CBI could not have been found to be at fault for delay in recording of statement of accused persons.

26. Since the petitioner/CBI also seeks expungement of certain remarks passed by the learned Trial Court against its functioning in the impugned orders, it will be appropriate to take note of the settled judicial principles in this regard.

27. Section 6 of Chapter 1, Part H („The Judgment‟) of the Delhi High Court Rules for “Practice in the Trial of Criminal Cases” pertains to criticism on the conduct of Police and other officers and provides guidance in this regard. The same is reproduced as under:

28. The Hon‟ble Apex Court in Dr. Dilip Kumar Deka and Anr. v. State of Assam and Anr. (1996) 6 SCC 234, had elaborated upon the tests to be applied while deciding the question of expunction of disparaging remarks against authorities, and the relevant observations read as under:

29. This Bench in Ajit Kumar v. State (NCT of Delhi) 2022 SCC OnLine Del 3945 had also issued directions for exercise of judicial restraint and had expressed that judicial officers should refrain from passing disparaging remarks against police officials and prosecuting agencies. The relevant portion of said judgment is reproduced as under:

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...”

30. The remarks passed by the learned Trial Court against the working of CBI and its officials in order dated 05.03.2018 and the cost imposed upon it vide same order, primarily arise out of the fact that CBI had failed to submit the draft questions and incriminating evidence due to which the recording of statement of accused persons under Section 313 Cr.P.C. was getting delayed. However, as observed in preceding paragraphs, firstly, the learned Trial Court instead of seeking assistance or help in preparing relevant questions, had essentially abdicated its entire responsibility to the investigating agency which was not permissible in law even as per Section 313 Cr.P.C.; secondly, the investigating agency had submitted previously, around 104 draft questions which after consideration were supplied to the accused persons as well; thirdly, even though the investigating agency could not file the draft of entire questions before the hearing scheduled on 05.03.2018, the concerned Prosecutor on that day had offered to prepare the questions on the very same day itself, however, this request was also turned down by the learned Trial Court.

31. Further, the observations of the learned Trial Court in the order dated 31.03.2018, that the 26 draft questions were not framed in proper sentences so as to make out any meaning and thereafter directing that copy of the said draft be sent to concerned SP, concerned SP (SDOP), DOP as well as Joint Director for making assessment of work done by concerned functionaries of CBI regarding their capability to prepare such a draft of incriminating evidence in the span of two months and also asking them to take a stand before the Court as to whether this is going to be the quality and speed of work of CBI as well as observing that a responsible officer of CBI will appear and inform the Court about the assessment of capabilities of work being done by CBI officers, was not called for in the present circumstances. In this regard, it is to be noted that if the learned Trial Court did not find the draft questions to be framed in proper sentences, the learned Trial Court, who was to only take assistance of CBI for preparation of statement of accused, could at least have framed the sentences properly, according to its satisfaction. As already observed in preceding discussion, it is to be remembered that law only provides for taking assistance and not burdening the prosecution for preparation of the entire statement of accused or putting the questions to the accused. This is an important stage of trial and remains duty of the Court itself.

32. Moreover, to order for assessment of capability and working capacity of the officers concerned, who drafted such questions and going to the extent of writing to the Joint Director and DOP to make assessment of capability and work of the officials concerned was totally unwarranted. In case, the sentences framed in the English language were found to be unsatisfactory, the Court should have noted that it is not the mother tongue of the officials drafting the questions and all may not be well-versed and proficient in written or spoken English as to match the expectations and level of those who have mastered the foreign language.

33. No doubt, English is language used in Delhi Courts, however, to castigate someone for improper framing of questions in language which the officer may not be proficient in, does not behold either a Court or any authority.

34. The importance of judicial conduct and restraint has been discussed and its significance has been highlighted in the past by the Hon‟ble Apex Court well as this Court. Reputational concerns often due to castigating observations made against an officer or person in a judicial order which may not be the need of the case or situation.

35. To write to the disciplinary authority of an officer to evaluate a person‟s capability of working does not lie in the domain of judicial adjudication process where it is not in question. The need for judicial restraint should be exercised while passing such strictures and sending them to disciplinary authority as they may amount to doing injustice to a person who is not an offender but a defender before the Court, while being in process of doing justice to the alleged offender.

36. The justice required in this particular case or any case has to be based on judicial system supported by the law, and strictures have to be passed in accordance with law and with caution and self-restraint. As this Court has observed, if the language used and formation of sentences which had been framed in English language were not acceptable or up to the expectation of the Court concerned, the learned Trial Court should have himself at least framed the sentences as the duty of the prosecution was to place before the learned Trial Court the incriminating evidence and that too, in the capacity of their role of assisting the Court only.

37. Thus, sending the denigrating remarks to the superiors/head of DOP and asking them to assess not only the persons concerned, but also their own department‟s capability of working in the Court, was uncalled for in the circumstances in which the impugned order was passed.

38. Though, it may be true that the judiciary should not refrain from passing orders for fear of the same being considered unpopular, at the same time, the broader question of whether a judge should comment on capability of the officers of prosecution appearing before it regarding their ability to assist the Court and thereafter asking them to appear before the Court and inform it as to whether they have assessed the capability of such officers, will put the department as well as the official concerned in a difficult situation. The assessment of annual confidential reports and capability of officers of any department has to be left to the superiors and the concerned authorities of the said department. And any gross misconduct can be brought to the notice of the concerned authorities in the given circumstances, if the circumstances so demand, but to completely undermine ability of the prosecutor and state that they are unable to assist in judicial decisionmaking process is something that is worrying. The judicial sensitivity and respect for parties appearing before it is a part of judicial decision making process. In such circumstances, the Court could have expressed its displeasure over the slow progress of the case, however, to have commented on the capability and capacity of the entire institution of CBI and how its officers work, and to appear in the Court and take a stand as to whether CBI will work in this fashion was neither the institutional nor administrative work of the concerned Trial Court.

39. It will be irresponsible for a Court to pass remarks remaining oblivious to the ground realities that everyone may not be superefficient in English language. The prime duty of judges is to do justice in individual cases, and the privilege and immunity enjoyed by a judicial officer while adjudicating cases carries with it an enormous responsibility to exercise the same with utmost circumspection. This order, in any manner, does not undermine the majesty or the power of the Courts, but only aims to reiterate, as already reiterated on multiple occasions by the Hon‟ble Apex Court, the need to exercise judicial restraint.

40. In such circumstances, this Court is of the opinion that the competence, expertise or legitimacy of a person‟s capability of appearing in the Court and his capability to assist or work in the institution for which he works should not be taken upon itself by the Court, and the displeasure and disagreement, if any, must be expressed in respectful, restrained and courteous way. The impact of public insult and disrespect by way of a publically available judicial order is tremendous on a person‟s self-esteem and his reputation in the society. The Court must have an eye to the after effects of such strictures and the consequences of such observations.

41. Further, sweeping remarks passed by the learned Trial Court in order dated 05.03.2018 that a warning was being recorded for the prosecuting agency that if a similar situation would arise in future in any of the cases pending before itself, the Court shall be compelled to think of issuing show cause notice for making reference for contempt of Court, have been taken note of by this Court. The learned Trial Court passed these remarks apropos all the cases pending before it and gave a forewarning that it will be issuing a contempt notice to the prosecuting agency in case of any such delay or any kind of default on their behalf. This Court is at a loss to understand as to how such a warning in the nature of threat could have been made part of a judicial order. Every judicial order, including a contempt order which is a serious matter for any person or agency, has to be passed with utmost circumspection after individually examining the facts and conduct of the person or agency concerned. Therefore, this Court is also inclined to expunge the said remarks contained in the impugned order dated 05.03.2018.

42. Thus, in view of the foregoing discussion, this Court is of the opinion that it was uncalled for the learned Trial Court to have passed remarks against the petitioner/CBI in the impugned orders, as reproduced and emphasized in paragraph 6 and 7 of this judgment, and accordingly, the same are deleted/expunged from the record.

43. Further, the order dated 05.03.2018 insofar as it relates to imposition of a total cost of Rs.16,600/- upon the petitioner/CBI, on ground that CBI was responsible for the delay in recording of statement of accused under Section 313 Cr.P.C. and their irresponsible conduct being the reason for adjournment granted on that day, is also set aside for the reasons stated in preceding paragraphs.

44. This Court has not expunged the displeasure expressed by the learned Trial Court regarding delay in preparation of the questions as the Court could have done so in its judicial domain, however, the irregularity and illegality regarding putting the entire burden of the same on the prosecution which is not permissible under the law has been discussed in the judgment separately and adjudicated upon. Also, this Court being guided by the principles of judicial restraint as laid down by the Hon‟ble Apex Court, does not deem it fit to pass any order against the concerned judicial officer, but by way of this judgment, only reiterates and emphasizes upon the need to exercise utmost restraint while passing judicial strictures and remarks unnecessary and uncalled for in given circumstances of a case against any officer or authority. This Bench in Ajit Kumar v. State (supra) has pointed out the procedure which a judge may adopt in case the misconduct, etc. of an officer, etc. is to be conveyed to its superiors as laid down under the relevant rules of Delhi High Court.

45. Accordingly, the present petition, along with pending application, if any, stands disposed of in above terms.

46. The judgment be uploaded on the website forthwith.

SWARANA KANTA SHARMA, J APRIL 18, 2023