Expunging of Remarks

SMT. MONA PANWAR vs. THE HON'BLE HIGH COURT OF JUDICATURE AT ALLAHABAD THROUGH ITS REGISTRAR AND OTHERS. 
( J.M. PANCHAL & H.L. GOKHALE, JJ.)

Criminal Appeal No.298 of 2011 (Arising out of S.L.P. (Crl.) 9803 of 2009)-Decided on 02-02-
2011.

JUDGMENT

J.M. Panchal, J.-Leave granted.

2. The present appeal is filed by the appellant, who is member of judicial service of the State of
Uttar Pradesh, for expunging the remarks made by the learned Single Judge of the High Court of
Judicature at Allahabad in Criminal Misc. Application No. 21606 of 2009 while setting aside
order dated August 1, 2009, passed by the appellant in case No. nil of 2009 titled as Shabnam vs.
Irshad registering the application filed by the respondent No. 3 under Section 156(3) of the Code
of Criminal Procedure ("Code" for short) as complaint and directing the Registry to present the
file before the appellant on August 9, 2009 for recording the statement of the complainant, i.e., of
Shabnam under Section 200 of the Code.

3. The facts giving rise to the present appeal are as under:
The respondent No. 3 is wife of one Mustqeem and resides at Village Sayyed Mazra,
District Saharanpur with her husband and in-laws. It may be stated that the accused is her
father-in-law. According to the respondent No. 3 her father-in-law had bad eye on her
since her marriage. The case of the respondent No. 3 was that in the intervening night of
June 18/19, 2009 at about 3 O'clock she was all alone in her room as her husband had
gone out and she was sleeping but the doors of the room were kept open due to heat. The
allegation made by the respondent No. 3 is that Irshad, i.e., her father-in-law came inside
her room, caught hold of her with bad intention, scratched her breasts, forcibly pushed
cloth in her mouth and forcibly committed rape on her. The case of the respondent No. 3
was that though she offered resistance, Irshad did not pay any heed and committed rape
on her. The allegation made by her was that because of the incident she became
unconscious and in the morning she narrated the whole incident to her mother-in-law
Bindi, but she advised her not to disclose the incident to anyone as it was a matter of
reputation of the family. According to respondent No. 3 she telephoned her mother, who
arrived at her in-laws' place along with Muneer, her brother-in-law, on a motor cycle but
Irshad in the meanwhile had fled away from the village. The case projected by the
respondent No. 3 was  that as her condition was deteriorating, she was got medically
examined in District hospital by her mother and thereafter she had gone to the Police
Station, Nakur, but the police had refused to register her FIR. It was claimed by the
respondent No. 3 that under the circumstances she had moved an application before the
Senior Superintendent of Police, Saharanpur but he had also not taken any action and,
therefore, she had filed an application under Section 156(3) of the Code before the
learned Judicial Magistrate II, Court No. 14, Saharanpur mentioning therein as to how the
incident of rape with her had taken place and praying the learned Magistrate to direct the
Officer-in-charge of Police Station, Nakur, to register her complaint and investigate the
case against the accused under Section 156 (3) of the Code.

4. On receipt of the application the appellant called for report from the concerned police station.
As per the report received no case was registered regarding the incident narrated by the
respondent No. 3. The respondent No. 3 had filed her own affidavit in support of the case pleaded
in the application filed before the appellant and produced a carbon copy of the application sent by
her to the Senior Superintendent of Police, Saharanpur with its postal registration as well as
photocopy of medical certificate. The learned Magistrate perused the averments made by the
respondent No. 3 in her application as well as documents annexed to the said application. The
appellant was of the view that the respondent No. 3 was acquainted with the facts and
circumstances of the case and was also familiar with the accused and knew the witnesses too. The
appellant was of the view that the respondent No. 3 would be able to produce all the evidence
herself. The appellant referred to the principles of law laid down by the Allahabad High Court in
Gulab Chand vs. State of U.P. 2002 Cr.L.J. 2907, Ram Babu Gupta vs. State of U.P. 2001 
(43) ACC 50, Chandrika Singh vs. State of U.P. 2007 (50) ACC 777 and Sukhwasi S/o 
Hulasi vs. State of U.P. 2007 (59) ACC 739 and after taking into consideration the principles
laid down in the above referred to decisions the appellant was of the view that this was not a fit
case to be referred to the police for investigation under Section 156(3) of the Code and, therefore,
directed that the application submitted by the respondent under Section 156(3) of the Code be
registered as complaint and further ordered the Registry to present the file before her on August
28, 2009 for recording the statement of the respondent No. 3 i.e. the original complainant under
Section 200 of the Code.

5. Feeling aggrieved, the respondent No. 3 invoked jurisdiction of the High Court under Section
482 of the Code by filing Criminal Misc. Application No. 21606 of 2009 and prayed the High
Court to quash the order dated August 1, 2009, passed by the appellant and to direct the police to
register her  F.I.R. filed against Irshad and to investigate the same as provided under Section
156(3) of the Code.

6. The learned Single Judge of the High Court, who heard the matter, was of the view that the
appellant had done the gravest injustice to the respondent No. 3. According to the learned Single
Judge though the appellant is a lady Magistrate yet she could not think about the outcome of
ravishing the chastity of daughter-in-law by her father-in-law and the nature of crime committed
by the accused. After going through the order dated August 1, 2009, passed by the appellant, the
learned Single Judge expressed the view that the order indicated total non- application of mind by
the appellant. The learned Single Judge noticed that the incident had occurred inside the room in
early hours of June 19, 2009 and there was no mention of any witness in application filed by the
respondent but in the order passed by the appellant it was noted that the victim was in the
knowledge of all the facts and that the witnesses were also known to her, which indicated nonapplication of mind by the appellant. The learned Single Judge while setting aside the order dated
August 1, 2009, passed by the appellant, observed that the order was a blemish on justice meted
out to a married lady who was ravished by her own father- in-law. The learned Single Judge
expressed the view that the appellant had passed the order ignoring all judicial disciplines and had
not at all applied her judicial mind and had only referred to some of the judgments of the
Allahabad High Court, which were contrary to the opinion expressed by the Apex Court rendered
in many decisions. After observing that a judicial  order should be passed by applying judicial
mind, the learned Single Judge severely criticized  the conduct of the appellant and recorded his
serious displeasure against the appellant for passing such type of illegal orders.  The learned
Single Judge further warned the  appellant for future and cautioned the appellant to be careful in
passing the judicial orders. The learned Single Judge observed that the appellant should have
thought that the rape not only causes physical injury to the victim but also leaves scars on the
mind of the victim for the whole life and implant the victim with such ignominy which is worse
than her death. The learned Single Judge expressed  the view that he was inclined to refer the
matter to the Administrative Committee for taking action against the appellant but refrained from
doing so because the appellant is a young officer and has a long career to go. The learned Single
Judge by his judgment dated September 9, 2009 set aside the order dated August 1, 2009, passed
by the appellant, and directed the appellant to decide the application of the respondent No. 3
within the ambit of her power under Section 156(3) of the Code and also directed her to pass
order for registration of FIR against the erring police officers, who had refused to register the FIR
of the respondent No. 3. The learned Single Judge directed the Registry of the High Court to send
a copy of his judgment to the appellant for her future guidance and also to the Senior
Superintendent of Police, Saharanpur. As noted above, the disparaging remarks made by the
learned Single Judge while setting aside the order passed by the appellant has given rise to the
present appeal.

7. This Court has heard the learned counsel for the appellant as well as the learned counsel for the
State Government and the learned counsel representing the High Court of Judicature at
Allahabad. The record shows that the Respondent No.3 i.e. the original complainant is duly
served in the matter but she has neither appeared through a lawyer or in person nor has filed any
reply in the matter. This Court has also considered the documents forming part of the present
appeal.

8. On receipt of notice issued by this Court, Mr. Anand Kumar, Deputy Superintendant of Police,
Saharanpur, U.P. has filed reply affidavit mentioning inter alia that as per the office record
maintained at the Police Station, Nakur or in the officer of the Senior Superintendant of Police,
Saharanpur does not disclose receipt of any complaint from the Respondent No. 3. It is mentioned
in the reply that when the impugned judgment dated September 10, 2009 passed by the learned
Single Judge of High Court was brought to the notice of the authorities concerned a first
information report was lodged at the Police Station, Nakur being FIR 36/2009 against accused
Irshad and offence punishable under Section 376 IPC was registered. The reply proceeds to state
that the Investigating Officer had recorded the statement of the Respondent No. 3 as well as that
of her mother and the statement of her brother-in-law. But the mother and the brother-in-law had
mentioned that they were not eye-witnesses to the incident. The reply mentions that inquiries
made by Investigating Officer with the neighbourers of the accused indicated that Respondent
No. 3 was a divorcee and was residing at her parents house from the date of divorce. As per the
reply of Deputy Superintendant of Police almost all neighbourers had unanimously informed the
Investigating Officer that the Respondent No. 3 was not seen at her husband's house on 17th, 18th
and 19th June, 2009 and thus the incident referred to by Respondent No. 3 in her complaint was
found to be a concocted story. The reply further mentions that the Investigating Officer had
recorded the statement of doctor who had medically  examined the Respondent No. 3 and the
doctor had categorically stated that medical examination of the Respondent No. 3 did not confirm
allegation of rape made by her. What is relevant to notice is that in the reply it is stated that on
completion of investigation the Investigating Officer had closed the investigation and submitted
the final report as contemplated by Section 169 of the Code on December 18, 2009.
9. Section 156(1) of the Code authorizes the police to investigate into a cognizable offence
without requiring any sanction from a judicial authority. However, sub-section (3) of Section 156
of the Code provides that any Magistrate empowered under Section 190 of the Code may order
such an investigation as mentioned in sub-section (1) of the said Section. Section 190 of the Code
deals with cognizance of offences by Magistrates and inter alia provides that any Magistrate of
the first class may take cognizance of an offence (a) upon receiving a complaint of facts which
constitute such offence, (b) upon a police report of such facts and (c) upon information received
from any person other than a police officer or upon his own knowledge that such offence has
been committed. Neither Section 154  nor Section 156 of the Code contemplates any application
to be made to the police under Section 156(3) of the Code. What is provided in Section 156(1) of
the Code is that any officer in charge of a police station may, without the order of a Magistrate,
investigate any cognizable case which a Court having jurisdiction over the local area within the
limits of such station would have power to inquiry  into or try under the provisions of Chapter
XIII. However, this Court finds that in the present case it was alleged by the respondent No. 3
that she had filed complaint before police but according to her, the police officer in charge of the
police station had refused to register her complaint and, therefore, she had made application to the
Senior Superintendent of Police as required by Section 154(3) of the Code, but of no avail.
Therefore, the respondent No. 3 had approached the appellant, who was then discharging duties
as Judicial Magistrate II, Court No. 14, Saharanpur. When the complaint was presented before the
appellant, the appellant had mainly two options available to her. One was to pass an order as
contemplated by Section 156(3) of the Code and second one was to direct examination of the
complainant upon oath and the witnesses present, if any, as mentioned in Section 200 and
proceed further with the matter as provided by Section 202 of the Code. An order made under
sub-section (3) of Section 156 of the Code is in the nature of a peremptory reminder or intimation
to the police to exercise its plenary power of investigation under Section 156(1). Such an
investigation embraces the entire continuous process which begins with the collection of evidence
under Section 156 and ends with the final report either under Section 169 or submission of charge
sheet under Section 173 of the Code. A Magistrate can under Section 190 of the Code before
taking cognizance ask for investigation by the police under Section 156(3) of the Code. The
Magistrate can also issue warrant for production, before taking cognizance. If after cognizance
has been taken and the Magistrate wants any investigation, it will be under Section 202 of the
Code. The phrase "taking cognizance of" means cognizance of offence and not of the offender.
Taking cognizance does not involve any formal action or indeed action of any kind but occurs as
soon as a Magistrate applies his mind to the suspected commission of an offence. Cognizance,
therefore, takes place at a point when a Magistrate first takes judicial notice of an offence. This is
the position whether the Magistrate takes cognizance of an offence on a complaint or on a police
report or upon information of a person other than a police officer. Before the Magistrate can be
said to have taken cognizance of an offence under Section 190(1)(b) of the Code, he must have
not only applied his mind to the contents of the complaint presented before him, but must have
done so for the purpose of proceeding under Section 200 and the provisions following that
Section. However, when the Magistrate had applied his mind only for ordering an investigation
under Section 156(3) of the Code or issued a warrant for the purposes of investigation, he cannot
be said to have taken cognizance of an offence. Taking cognizance is a different thing from
initiation of the proceedings. One of the objects of examination of complainant and his witnesses
as mentioned in Section 200 of the Code is to ascertain whether there is prima facie case against
the person accused of the offence in the complaint  and to prevent the issue of process on a
complaint which is either false or vexatious or intended only to harass such person. Such
examination is provided, therefore, to find out whether there is or not sufficient ground for
proceeding further.

10. From the order dated August 1, 2009, passed by the appellant, it is evident that the appellant
had called for report from the concerned police station and considered the said report wherein it
was inter alia mentioned that no case was registered on the basis of the application made by the
respondent No. 3. The respondent No. 3 at the time of filing complaint before the appellant had
filed her own affidavit, carbon copy of the application sent by her to the Senior Superintendent of
Police, Saharanpur with its postal registration and photocopy of the medical certificate. Under the
circumstances the appellant had exercised judicial  discretion available to a Magistrate and
directed that the application, which was submitted by the respondent No. 3 under Section 156(3)
of the Code, be registered as complaint and directed the Registry to present the said complaint
before her on August 28, 2009 for recording the statement of the respondent No.3 under Section
200 of the Code. The judicial discretion exercised by the appellant was in consonance with the
scheme postulated by the Code. There is no material on the record to indicate that the judicial
discretion exercised by the appellant was either arbitrary or perverse. There was no occasion for
the learned Single Judge of High Court to substitute the judicial discretion exercised by the
appellant merely because another view is possible. The appellant was the responsible judicial
officer on the spot and after assessing the material placed before him he had exercised the judicial
discretion. In such circumstances this Court is of the opinion that the High Court had no occasion
to interfere with the discretion exercised judiciously in terms of the provisions of Code.
Normally, an order under Section 200 of the Code for examination of the complainant and his
witnesses would not be passed because it consumes the valuable time of the Magistrate being
vested in inquiring into the matter which primarily is the duty of the police to investigate.
However, the practice which has developed over the years is that examination of the complainant
and his witnesses under Section 200 of the Code would be directed by the Magistrate only when a
case is found to be serious one and not as a matter of routine course. If on a reading of a
complaint the Magistrate finds that the allegations therein disclose a cognizable offence and
forwarding of the complaint to the police for investigation under Section 156(3) of the Code will
not be conducive to justice, he will be justified in adopting the course suggested in Section 200 of
the Code. Here, in this case the respondent No. 3 had averred in the application submitted before
the appellant that the Officer-in-charge of the Nakur Police Station had refused to register her
complaint against her father-in-law regarding alleged rape committed on her and that no action
was taken by the Senior Superintendent of Police though necessary facts were brought to his
notice. Under the circumstances, the judicial discretion exercised by the appellant, to proceed
under Section 200 of  the Code in the light of principles of law laid down by the Allahabad High
Court in various reported decisions could not have been faulted with nor the appellant could have
been subjected to severe criticism as was done by the learned Single Judge. There was no
occasion for the learned Single Judge to observe that the appellant, a Judicial Magistrate, had
done the gravest injustice to the victim or that though the appellant is a lady Magistrate, yet she
did not think about the outcome of ravishing the chastity of daughter-in-law by her father-in-law
or the seriousness of the crime committed by the accused and the reason assigned by the learned
Magistrate in not directing the police to register  the FIR indicated total non-application of mind
by the appellant and that the order dated August 1, 2009, passed by the appellant, was a blemish
on the justice system. The learned Single Judge was not justified in concluding that the appellant
as Judicial Magistrate had passed the order dated August 1,  2009 ignoring all judicial disciplines
or that the appellant had not at all applied her judicial mind and had only referred to some of the
judgments of the Allahabad High Court, which were contrary to the opinion of the Apex Court
rendered in many decisions. There was no reason for the learned Single Judge of the High Court
to record his serious displeasure against the order of the appellant which was challenged before
him as an illegal order nor the learned Single Judge was justified in severely criticizing the
conduct of the appellant as Judicial Magistrate because the application submitted by the
respondent N. 3 was ordered to be registered as a complaint and was not dismissed.

11. This Court has laid down in several reported decisions that higher courts should observe
restraint and disparaging remarks normally should not be made against the learned members of
the lower judiciary. In Ishwari Prasad Mishra vs. Mohd. Isa (1963) 3 SCR 722, a Three Judge
Bench of this Court has emphasized the need to adopt utmost judicial restraint against using
strong language and imputation of motive against the lower judiciary by noticing that in such
matters the concerned Judge has no remedy in law to vindicate his position. The law laid down by
this Court in the matter of expunction of remarks where a subordinate Judge has been subjected to
disparaging and undeserved remarks by the superior Court, is well settled by this Court in the
matter of `K' a Judicial Officer Vs. Registrar General, High Court of Andhra Pradesh 2001 
(3) SCC 54. In the said decision this Court has succinctly outlined the guidelines in this regard in
paragraph 15 of the said Judgment as under:
"........The existence of power in higher echelons of judiciary to make observations even
extending to criticism incorporated in judicial orders cannot be denied. However, the
High Courts have to remember that criticisms and observations touching a subordinate
judicial officer incorporated in judicial pronouncements have their own mischievous
infirmities. Firstly, the judicial officer is condemned unheard which is violative of
principles of natural justice. A member of subordinate judiciary himself dispensing
justice should not be denied this minimal natural justice so as to shield against being
condemned unheard. Secondly, the harm caused by such criticism or observation may be
incapable of being undone. Such criticism of the judicial officer contained in a judgment,
reportable or not, is a pronouncement in the open and therefore becomes public. Thirdly,
human nature being what it is such criticism of a judicial officer contained in the
judgment of a higher court gives the litigating party a sense of victory not only over his
opponent but also over the Judge who had decided the case against him. This is
subversive of judicial authority of the deciding Judge. Fourthly, seeking expunging of the
observations by a judicial officer by filing an appeal or petition of his own reduces him to
the status of a litigant arrayed as a party before  the High Court or Supreme Court- a
situation not very happy from the point of view of the functioning of the judicial system.
And last but not the least, the possibility of a single or casual aberration of an otherwise
honest, upright and righteous Judge being caught unawares in the net of adverse
observations cannot be ruled out. Such an incident would have a seriously demoralizing
effect not only on him but also on his colleagues. If all this is avoidable why should it not
be avoided?"
However, this Court has further provided that the parameters outlined hereinbefore must not be
understood as meaning that any conduct of a subordinate judicial office unbecoming of him and
demanding a rebuff should be simply overlooked. This Court has outlined an alternate safer and
advisable course of action in such a situation, that is of separately drawing up proceedings,
inviting the attention of the Hon'ble Chief Justice to the facts describing the conduct of the
subordinate Judge concerned by sending a confidential letter or note to the Chief Justice. The
actions so taken would all be on the administrative side with the subordinate Judge concerned
having an opportunity of clarifying his position and he would be provided the safeguard of not
being condemned unheard, and if the decision be adverse to him, it being on the administrative
side, he would have some remedy available to him under the law. Again, in K.P. Tiwari vs. State 
of M.P. 1994 Supp. (1) SCC 540, this Court had to remind all concerned that using intemperate
language and castigating strictures on the members of lower judiciary diminishes the image of
judiciary in the eyes of public and, therefore, the higher courts should refrain from passing
disparaging remarks against the members of the lower judiciary. The record would show that the
appellant had discharged her judicial duties to the best of her capacity. To err is human. It is often
said that a Judge, who has not committed an error, is yet to be born. This dictum applies to all the
learned Judges at all levels from the lowest to the highest. The difference in views of the higher
and the lower courts is purely a result of a difference in approach and perception. But merely
because there is difference in views, it does not necessarily establish that the lower courts are
necessarily wrong and the higher courts are always right. Therefore, this Court in several reported
decision has emphasized the need to adopt utmost judicial restraint against making the
disparaging remarks so far as members of lower judiciary are concerned.

12. On the facts and in the circumstances of the case, this Court is of the opinion that the
disparaging remarks referred to above, made by the learned Single Judge of the Allahabad High
Court, were not justified at all and, therefore, the appeal will have to be accepted.

13. For the foregoing reasons, the appeal succeeds. The disparaging remarks made by the learned
Single Judge of the High Court of Judicature at Allahabad in Criminal Misc. Application No.
21606 of 2009, decided on September 9, 2009, while setting aside order dated August 1, 2009,
passed by the appellant in case No. nil of 2009 titled as Shabnam vs. Irshad directing that the
application submitted by the respondent No. 3 be registered as complaint and ordering the
Registry to present the same before her for recording statement of the respondent No. 3 under
Section 200 of the Code, are hereby set aside and quashed. In this Appeal prayer is to expunge
remarks made by the learned Single Judge of High Court against the Appellant. The other
directions are not subject matter of challenge in the appeal, therefore, those directions are not
interfered with.

14. The appeal accordingly stands disposed of.