CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 1 30 of 1975.
Appeal by Special Leave from the Judgment and Order dated the 13th March, 1974 of the Kerala High Court in Criminal Misc. Petition No. 7 of 1974 with Crl. M.P. No. 967/73.
K. T. Harindranath and T. T. Kunhikanan, for the appellant.
A. S. Nambiar for respondent no. 1.
K. R. Nambiar, for respondent No. 2.
The Judgment of the Court was delivered by SARKARIA, J.-This appeal by special leave is directed against a judgment of the Kerala High Court rejecting the appellant’s application under s. 561-A. Criminal Procedure Code for expunction of certain remarks made against him in the High Court’s order, dated 20-11-1973, in Criminal Misc. Petition No. 967 of 1973.
The appellant is a member of the Kerala Judicial Service, while the respondent herein is an Advocate practising at Ernakulam. On 14-8-1973, the appellant was working as District Magistrate Ernakulam. One Kamaleswaran, who was an accused in C.C. Nos. 216 and 217 of 1973 pending before him, was ordered to be released on bail on his executing a bond for Rs. 1,000/- with two sureties in the like amount. The two sureties were Kamaleswaran, the brother of the accused, and Sri Thankappan Nair. Thankappan’s address was given as "businessman, son of Parameswaran Pillai, Thambanoor Trivandrum." The affidavit filed by Thankappan, while offering himself as surety, was attested by Sri A. K. Srinivasan Advocate stating "solemnly affirmed at Ernakulam on this 14th day of August 1973 and signed before me who is personally known to me".
The above cases stood posted for examination of the accused under s. 342 of the Code of Criminal Procedure. When on that date the cases were called for hearing, the accused was absent. His Counsel Shri Srinivasan appeared and represented that although he had no information from the accused, who had to come from Trivandrum. yet he was expecting him to reach the court in time. The appellant (District Magistrate) thereupon ordered cancellation of the bail bonds and directed issue of notices to the Surety under s. 514 of the Code of Criminal Procedure calling upon him to show cause before 16-10-1973 why the terms of the Surety bonds providing for forfeiture of the sum of Rs. 1,000/- be not enforced. The notices issued to the Surety Thankappan Nair, were returned unserved whereupon on the 17th October, 1973. the appellant issued a non-bailable warrant for the arrest of the Surety. On the following day, the appellant issued a notice to Sri A. K. Srinivasan, Advocate which ran as under:
"Ernakulam District Magistrate Court No. M.C. 106
and M.C. 107 of 1973.
Notice for Shri A. K. Srinivasan, Advocate.
The above-mentioned cases are being fixed for
hearing 3-11-1973 at 11 A.M. You are required to
appear before the Court. .... .............
By order
Sd./ 18th October. 1973 SARISHADAR."
It may be mentioned here that in the proceedings initiated under s. 514 of the Code of Criminal Procedure in the two cases . Mr. Srinivasan, Advocate was not the duly constituted attorney or the Surety, Thankappan.
On receipt of the aforesaid notice, Mr. Srinivasan, Advocate filed Crl. M.P. 967 of 1973 before the High Court of Kerala under s. 561-A of the Code of criminal Procedure praying that the appellant be directed to withdraw the notice, dated 18-10-1973, on the ground that the issue of notice was arbitrary and amounted to an abuse of the process of the court because-
(a) There is no provision in the Criminal
Procedure Code empowering the Magistrate to
issue such a notice to command the Advocates’
appearance when he is not connected either as
a witness or a party or otherwise with the
proceedings relating to cancellation of bail-
bonds;
(b) The notice was issued to humiliate him and
the Bar since the latter had passed a
resolution, on 21-7-1973, pro testing against
the improper and discourteous treatment meted
out by the Magistrate to the members of the
Bar.
The learned Judge of the High Court before whom this petition came up for hearing, by an order dated 2-11-1973, called for a report from the appellant by 5-11-1973 regarding the allegations contained in, the Advocate’s petition and particularly as to under which provision of law and under what circumstances he had thought it fit to issue a notice to the Advocate requiring him to appear before him on 3-11-1973. The appellant thereupon submitted the report to the High Court, the material part of which reads:
"When notice was sent to the surety Thankappan
Nair whose address is given as, business-man,
Thambanoor,
Trivandrum, it was reported by the Police that there is
no such person, as far as they could gather, from the
detailed enquiries made and therefore notice could not
be served. In the affidavits filed by Shri Thankappan
Nair in these two cases when he offered himself as
surety the signatures of the deponent were attested by
Shri A. K. Sreenivasan, Advocate stating Solemnly
affirmed at Ernakulam on this the 14th day of August
1973 and signed before me? who is personally, known to
me. From the report of the Police Trivandrum it
appeared that this might be a case of false
personation. It is seen that in several cases the
accused have been got re leased by false sureties.
have already submitted a report about this to the
Hon’ble High Court as per my letter dated 31-10-1973.
There are several other similar instances of false
personation and filing false affidavits pending enquiry
before this Court. Under the circumstances in this case
also it appeared to the court that a false affidavit
has been filed by false personation. If it is false
personation, the attestation by the advocate should
necessarily be false. The offences under Sections 193,
196, 197, 199 and 205 of the Indian Penal Code appear
to have been committed. These are some of the offences
mentioned in Section 195 Cr]. P.C. Under section 476 of
the Cr. P.C. when any Civil, Revenue or Criminal Court
is whether on application made to it in this behalf or
otherwise, of opinion that it is expedient in the
interest of justice that an enquiry should be made into
any offence referred to in Section 195, Sub-section
(1), Cl. (b) or cl. (c), which appears to have been
committed in or in relation to a proceeding in that
court, such court may, after such preliminary inquiry
if any, as it thinks necessary, record a finding to
that effect and make a complaint thereof in writing
signed by the presiding officer of the Court.. To
ascertain whether there is a person as described in
the affidavits filed in the name of Shri Thankappan
Nair notice was issued as part of the preliminary
enquiry contemplated under Section 476 Cr. P.C. to Shri
A. K. Sreenivasan who has attested the affidavits of
the said Thankappan Nair stating that the deponent is
personally known to him. This had to be done in view of
the report of the police. Notice to Shri A K.
Sreenivasan was issued to appear in court on 3-11-1913
not in his capacity as Advocate appearing for the
accused but as the person who has attested the
affidavit of the said surety stating that he personally
knows the surety. The court can make the preliminary
enquiry mentioned above, either through the police or
to the accused or to the other surety or to the person
who attested the affidavit. In this matter accused is
absconding. the other surety could not be served and
the police report is as stated above. So the only
person to whom the inquiry under 476 could be made in
the circumstances is the person who has attested the
affidavit."
On 8-11-1973, the Advocate filed an affidavit in which he inter alia averred:
"I submit that the present explanation that the
notice was issued to me as a part of the preliminary
enquiry contemplated under sec. 476 of the Criminal
Procedure Code is obviously an after-thought, since it
is difficult that any reasonable man would have
inferred from the Police Report dated 12-10-1973 that
Sri Thankappan Nair" one of the sureties was a non-
existent person and therefore the attestation mad by me
on 14-8-1973 would have been false". He further reiterated with elaboration the allegations in his petition that the impugned action of the Magistrate lacked good faith and due care and had been issued to humiliate the bar generally and the petitioner particularly.
After taking into consideration the appellant’s report and other material on record, the High Court quashed the notice holding that the "action of the District Magistrate in issuing the impugned notice to the appellant constitutes grave misuse of his power and flagrant abuse of the process of the court".
The appellant then moved an application (Cr. M.P. No. 7 of 1974) for expunction of the remarks made against him by the High Court in its order, dated 20-11-1973. The application was rejected.
Against that order, dated 13-3-1974, refusing to expunge the ad- verse remarks, Shri Lakshmanan the District Magistrate has come in appeal to this Court.
11l the reply affidavit, dated 21-3-1975, filed in this Court, the appellant has submitted that if this Court is prima In of the opinion that the passages requested to be expunged are too many and spread over throughout the order, at least these four passages be expunged from the order in question:
"(i) I cannot help remarking that the information
furnished to this Court by the District Magistrate in
his report dated 3-11-1973 regarding the contents of
the Police Report is grossly inaccurate and
misleading."
"(ii) I make no secret of my opinion that the
action taken by the District Magistrate, in the present
case in issuing a notice to the petitioner, who is a
member of the bar, was most highly arbitrary and the
very casual fashion in which the said action has been
done renders it all the more objectionable."
"(iii) that the action taken against the
petitioner by the District Magistrate is totally devoid
of any legal sanction and highly arbitrary. ’
"(iv) l hold that the action of the District
Magistrate in issuing the impugned notice to the
petitioner constitutes a grave misuse of his power and
also flagrant abuse of the process of his court".
The tests to be applied in considering the expunction of disparaging remarks against persons or authorities whose conduct comes in for consideration before courts of law in cases to be decided by them, were neatly summed up by this Court, speaking through S. K. Das, J., in State of U.P. v. Muhammad Nain,(1) thus:
"(i) Whether the party whose conduct is in
question is before the court or has an
opportunity of explaining or defending
himself;
(ii) Whether there is evidence on record bearing
on that conduct justifying the remarks; and
(iii)Whether it is necessary for the decision of
the case, as an integral part thereof, to
animadvert on that con duct. It has also been
recognised that judicial pronouncements must
be judicial in nature, and should n not
normally depart from sobriety, moderation and
reserve."
Let us now apply these tests to the present case.
In the petition filed under s. 561-A, Code of Criminal Procedure by the Advocate, the appellant was impleaded as the sole respondent. The appellant was called upon by the High Court to explain his conduct in issuing the impugned notice. In reply, the appellant submitted a detailed report. It is not controverted that before the High Court. the appellant was represented by a senior Public Prosecutor who had been directed to defend him by the State Government. The appellant had thus adequate opportunity of explaining his conduct and defending the impugned action. Indeed, in his report submitted to the High Court, he did his best to justify his conduct in that case. The appellant therefore, cannot complain that the remarks in question were passed by the High Court without affording him due opportunity to explain and defend his action.
Nor can it be said that this is a case where there was no evidence on record bearing on the conduct of the appellant to which the re marks in question pertain.
It is true that ex-facie, the notice requiring the Advocate to attend the Court of the Appellant on 3-11-73, though couched in curt and peremptory language, was not, by itself, a very offensive document. But the Advocate’s allegation was that it had not been issued in good faith and the sole purpose of issuing this notice was to humilate the Advocate and the Bar who had earlier passed a resolution complaining to the High Court against the misbehaviour of the appellant towards the members of the Bar. Subsequently, on 8-11-1973 the Advocate field an affidavit setting forth full particulars of the circumstances which, according to him, showed how the notice was illegal. arbitrary and tainted by bad faith. He annexed a copy of the Bar’s resolution, to his affidavit. the report sent by the appellant to the High Court confirmed that the allegations made in the Advocate’s petition were not empty apprehensions. The report revealed that the notice was not an innocuous request to the Counsel to furnish better k particulars of the Surety, but it was a preliminary step taken under cover of s. 476, Criminal Procedure Code for possible prosecution of the Advocate. The appellant gave a clear clue to his ulterior intent, when in the report, he said:
"Notice to Shri A. K. Sreenivasan was
issued....not in his capacity as Advocate appearing for
the accused but as the person who has attested the
affidavit of the said Surety .... "
Thus there was ample material before the High Court bearing on the impugned conduct of the appellant, justifying the adverse comments in question.
Again, the passages sought to be expunged could not be said to be irrelevant or alien to the subject matter of the case before the High Court.
The notice issued to the Surety had been returned by the police with an endorsement which, rendered into English, reads as under:
"Notice could not be served on the person referred
to in the notice as he (process server) did not get any
information about him after detailed enquiry made about
him in Tampanoor from different businessmen. For want
of sufficient information and more detailed particulars
regarding the nature of the business conducted at
Tampanoor by the person referred to in the notice, the
service could not be ’ effected.
Submitted for orders".
But in his report submitted to the High Court, the appellant stated that "it was reported by the Police that there is no such person as far as they could gather from the detailed inquiries made and therefore notice could not be served". Manifestly, this statement did not present a faithful and correct picture of the endorsement of the process server. Evidently, this misleading stand was taken by the appellant to show that action under s. 476, Criminal Procedure Code against the Advocate would not be groundless. In these premises it cannot be said that the observations of the High Court that "information furnished to this Court by the District Magistrate in his report dated 3-11-73 regarding the contents of the Police Report is grossly inaccurate and misleading" was unjustified.
The substance of the other remarks in question is substantially the same, viz., that the issue of the impugned notice to the Advocate by the appellant was illegal and arbitrary and amounted to a gross abuse of the process of the Court. These remarks were an integral part of the reasoning of the High Court. They were not irrelevant or foreign to the matter in issue. They were inextricably intertwined with the findings and the order recorded by the High Court in that case. Excision of these remarks would emasculate the order of the High Court, robbing it of its very rationale.
Judged by the aforesaid tests, no case for interference by this Court has been made out.
Accordingly, we dismiss the appeal, with no order as to costs. P.B.R. Appeal dismissed.