Dr. Raghubir Sharan vs The State of Bihar

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 87 of 1961

Decision Date: 14 March, 1963

Coram: Raghubar Dayal, J.R. Mudholkar, Subba Rao J

In this matter, the Supreme Court recorded that the petition was filed by Dr Raghubir Sharan against the State of Bihar, and the judgment was delivered on 14 March 1963. The Bench comprised Justice R Dayal, Justice J R Mudholkar and Justice K Subbarao. The citation of the decision is reported in 1964 AIR 1 and 1964 SCR (2) 336. The case concerned the provisions of the Code of Criminal Procedure, Act V of 1898, specifically section 561 A, which deals with the inherent power of a High Court to amend or expunge portions of a judgment of a subordinate criminal court. The factual backdrop involved a criminal proceeding before a Munsif Magistrate in which two accused persons applied for bail on the ground of serious illness while detained. The Magistrate, in order to assess the medical condition of the accused, called upon the appellant, who at that time held the positions of Civil Assistant Surgeon and Superintendent of the Sub‑jail, to prepare a medical report. Upon receiving the report, the Magistrate granted bail to the accused but, in the same order, inserted several observations that were critical of the appellant in his capacity as a medical officer. The appellant objected to those observations, arguing that they were irrelevant and could damage his future official career. Consequently, the appellant filed a revision petition in the High Court seeking expungement of the said remarks. The High Court dismissed the revision petition. The appellant then obtained special leave to appeal before this Court, contending that the High Court should have exercised its inherent power under section 561 A to remove the impugned observations.

The Court identified the principal issue as whether, after a criminal judgment has become final—meaning that no aggrieved party has filed an appeal—the High Court may, on the application of a third party, order the deletion of remarks embedded in that judgment. Relying on the principle that every High Court, as the highest court exercising criminal jurisdiction in a state, possesses inherent authority to issue any order necessary to secure the ends of justice, the Court affirmed that this authority extends to the expunction of irrelevant passages from the judgments or orders of subordinate courts. However, the Court emphasized that such power is extraordinary and should be invoked only to remedy a flagrant abuse of power, for example when a lower court makes unwarranted comments on matters not before it that are likely to cause prejudice or harm to another. The Court examined the present observations and concluded that they did not rise to the level of a flagrant abuse warranting the exercise of section 561 A. Accordingly, the appeal was dismissed. The judgment referenced earlier authorities, including State of U P v J N Bagga (Criminal Appeal No 122/1959, decided 16 January 1961), In the matter of H Daly (1927) 1 L R 9 Lahore 269, Panchanan Banerji v Upendra Nath (1926) 1 L R 49 All 254, Rogers v Shrinivas Gopal Kewale [I L R (1940) Bom 415], Emperor v O Dunn [922 44 All 401] and Emperor v Sidaramaya (1917) 19 Bom L R 912, among others.

In the opinion of the Court, the authorities cited included Emperor v. Sidaramaya (1917) 19 Bom LR 912, State v. Nilkanth Shripad Bhave 1 LR (1954) Bom 148, Emperor v. Nazir Ahmad A.I.R. 1945 P.C. 18, Jairan Das v. Emperor (1945) 47 Bom LR 634 (P.C.), Panchanan Banerji v. Upendranath Bhattacharji (1926) 1 LR 49 All 254, In the Matter of Daly (1927) I.L.R. 9 Lahore 269, Rogers P.J. v. Shrinivas Gopal Kewale 1 LR 1940 Bom 415, Bhutnath Khanwas v. Dasrathi Das A.I.R. 1941 Pat 544, In re Public Prosecutor A.I.P. 1944 Mad 614, and State v. Nilkanth Shripad 1 LR 1954 Bom 148. According to Justice Subba Rao, the present case gave rise to several guiding principles. First, a criminal court’s judgment is considered final and may be set aside or altered only by the procedures expressly prescribed by law. Second, every judge, regardless of his rank within the judicial hierarchy, possesses an unfettered right to express his own views on any matter that comes before him, without fear or favour. Third, a judge must observe a reciprocal and self‑imposed duty to refrain from making remarks that are irrelevant or without factual foundation, especially when such comments concern the character or reputation of witnesses or parties who are not present before the court. Fourth, an appellate court has the jurisdiction to correct such improper observations, but it will intervene only in rare or exceptional circumstances where the remarks are likely to cause irreparable injury to a witness or a party who does not appear before it.

The Court further held that a judicial officer does not relinquish his own judgment in medical matters merely because of the unchallenged statements of a doctor. In the facts of this case, the magistrate’s observation was found to be neither irrelevant nor unfounded, and consequently the appellate court was correct in declining to treat the observation as an exceptional circumstance that required judicial correction. Moreover, the Court concluded that the matter did not rise to the level of an extraordinary case that would warrant interference by this Court under Article 136 of the Constitution. The judgment recorded that the appeal, designated Criminal Appeal No. 87 of 1961, was taken by special leave from the order dated 7 October 1960 of the Patna High Court in Criminal Revision No. 460 of 1960. Counsel for the appellant included B.B. Tawakley, Mrs. E. Udayaratnam and R.C. Prasad, while counsel for the first respondent comprised D.P. Singh, M.K. Ramamurthi, R.K. Gary and S.C. Agarwal. The judgment was pronounced on 14 March 1963, and Justice Subba Rao delivered a separate opinion after reviewing the judgment of Justices Dayal and Mudholkar, which had been delivered by Justice Mudholkar. Justice Subba Rao agreed with the conclusion that the appeal should be dismissed and chose to provide his own reasons. He summarized the factual background, noting that the appellant was a medical practitioner who, during 1959, served as Deputy Superintendent of Jahanabad Sub‑Divisional Hospital and as Superintendent of Jahanabad Sub‑Jail, and that a criminal proceeding was pending before the Munsif‑Magistrate, First Class, Jahanabad.

In the proceedings before the First Class Munsif‑Magistrate at Jahanabad, the two accused persons filed a petition seeking their release on bail. On 3 October 1959 the magistrate issued a direction requesting a medical opinion regarding the health of the accused. The medical officer who held the position of Deputy Superintendent of Jahanabad Sub‑Divisional Hospital and Superintendent of Sub‑Jail examined the two accused, identified as Ramsewak Dusadh and Ramdeo Dusadh of Havellipur village, P.S. Ghosi, district Gaya, and prepared a written report. In that report he stated that both individuals suffered from hookworm infection and were consequently anemic. The report was forwarded to the magistrate. On 19 October 1959 the magistrate delivered an order granting bail to the accused. In that order he referred to the earlier communication dated 3 October 1959, noting that a petition signed by the Superintendent of the Sub‑Jail had been received. The magistrate observed that the petition asserted that the accused were suffering from hookworm infection and were anemic, but he also remarked that the main body of the petition appeared to have been drafted by someone other than the doctor and was merely signed by Mr R. Saran, the Superintendent. He further observed that no original medical examination report accompanied the petition, describing the situation as an extreme case of carelessness on the part of the doctor. The magistrate expressed the view that the doctor should have understood that the court would rely on an actual medical report rather than on a petition. Consequently, the magistrate directed that a copy of the petition and the order sheet be sent to the Civil Surgeon of Gaya for information. The magistrate also recorded the argument presented by counsel for the accused, who contended that the accused were poor and would be unable to defend themselves effectively if bail were denied. After considering their poverty and ill health, the magistrate ordered that bail be granted on a bond of Rs 500 with one surety of the same amount. Following the magistrate’s order, the medical officer made several unsuccessful attempts through administrative channels to have the magistrate’s remarks removed from the record. He then instituted a revision petition under sections 435 and 439 of the Code of Criminal Procedure before the Patna High Court, challenging the bail order. The High Court dismissed the revision petition, leading the medical officer to appeal the decision. Counsel for the appellant argued that the magistrate’s remarks were unjustified and baseless, and that they could adversely affect the doctor’s future official career; therefore, the appellant contended that the High Court should have expunged those remarks. Counsel for the respondents defended the magistrate’s comments and asserted that the High Court lacked jurisdiction to delete remarks from a judgment that had become final. The Court clarified at the outset that it was not expressing an opinion on whether a High Court, in an appeal or revision brought by an aggrieved party, could remove trial‑court remarks from its judgment. Instead, the Court confined its consideration to the specific question of whether, in a case where the judgment had become final and no appeal had been filed by an aggrieved party, the High Court possessed the authority to expunge such remarks at the request of a third party, and limited the inquiry to the appellate power to delete remarks in a criminal case.

In this case the Court observed that once a judgment had become final – meaning that no aggrieved party had lodged an appeal against it – the High Court could not, merely on the request of a third party, delete any observations that had been recorded in that judgment. The Court limited its examination to the authority of an appellate court to remove remarks in a criminal proceeding. The only statutory provision that the appellant’s counsel relied upon was section 561A of the Code of Criminal Procedure, which stated that nothing in the Code should be construed as limiting or affecting the inherent power of the High Court to make such orders as might be necessary to give effect to any order under the Code, to prevent abuse of process, or otherwise to secure the ends of justice. The Judicial Committee, in the earlier decisions of Emperor v. Nazir Ahmad and Jairam Das v. Emperor, had held that this section did not create any new powers but merely reaffirmed the powers that the Court already possessed as a matter of inherent jurisdiction. The Court then posed the question of the extent of this inherent power and whether it could be invoked after a judgment had become final for the purpose of expunging remarks. By expunging remarks, the appellate court essentially struck out a portion of the judgment; occasionally the portion removed might be an essential part of the reasoning, so that the remaining conclusion would no longer follow logically. At other times the remarks might relate to the assessment of a witness’s credibility, and even an exaggerated comment could be the sole basis for discounting that witness. There were also rare situations where the remarks were so irrelevant that they did not affect the outcome at all. Nevertheless, the act of removing any part of a judgment undermined its finality. The Court noted that the Code of Criminal Procedure contained no provision that allowed an appellate court, once a lower‑court order had become final between the State and the accused, to modify that order by deleting or striking out any observations. Consequently, it was uncertain whether section 561A conferred such a power. The Court mentioned that divergent opinions on this issue appeared in several authorities. For example, Justice Sulaiman, speaking in Panchanan Banerji v. Upendra Nath Bhattwharji, held that section 561A, which had been inserted in 1923, did grant the power to delete passages that were either irrelevant or inadmissible and that adversely affected the character of persons before the Court, and he found no reason why the inherent power should not include the authority to do so.

In this case the Court considered whether it could order the deletion of portions of a judgment that were either irrelevant or inadmissible and that harmed the reputation of persons appearing before the Court. Tek Chand J., referring to the judgment in the matter of Daly (1), affirmed that an appellate Court possessed such a power. Beaumont C.J., speaking in Rogers P.J. v. Shrinivas Gopal (2), stated succinctly that no Court could claim an inherent power to alter another Court’s judgment. Similarly, Dhavle J., in Bhutnath Khawas v. Dasrathi Das (3), agreed with Beaumont C.J. that no Court could assert an inherent power to change the judgment of a lower Court. The Madras High Court, in In re Public Prosecutor (4), held that an appellate Court may, in appropriate circumstances, expunge remarks from a judgment. The Full Bench of the Bombay High Court, hearing State v. Nilkanth Shripad (5), framed the issue as whether a superior Court has an inherent power “to alter the record, as it were, by changing or altering a judgment which has already been delivered and has become final as far as that particular Court is concerned.” The Bombay Court then observed that a lower Court’s judgment might be erroneous or even perverse, and that the proper method of attack was to bring the judgment under the scrutiny of a superior Court for judicial correction. It further expressed the view that, in suitable cases, the High Court possessed an inherent power—though no appeal or revision was available—to correct the observations of a lower Court by pointing out that the Magistrate’s observations were unjustified, baseless, wholly wrong or improper.

With due respect, the Court agreed with the conclusion reached by the Bombay High Court, as reported in the authorities cited as (1) (1927) 1 L.R. 9 Lah 269, 275; (2) I.L.R. 1940 Bom. 415, 418; (3) A. 1 R 1941 Pat. 544; (4) A.I.R. 1944 Mad. 614; and (5) I.L.R. 1954 Bom. 148, 157, 160. That judgment, the Court observed, reconciles the doctrine of finality of a judgment with the need to provide relief in appropriate cases to persons who are not parties to the proceeding but against whom uncharitable, unmerited and irrelevant remarks have been made without any foundation. The Court noted that decisions taking the opposite view contravene the fundamental principle that a judgment, even if rendered by an inferior Court, remains final and may be modified only in the manner prescribed by the applicable procedural law. All the learned judges interpreting the scope of section 561A of the Code of Criminal Procedure have concurred on preserving the independence of judicial officers so that they may express their views without fear or favour. In this context, the observations made by several judges are particularly relevant, as emphasized by Tek Chand J. in his earlier remarks.

In the matter of Daly (1) the Court quoted the observation that “it is of the utmost importance to the administration of Justice that Courts should be allowed to perform their functions freely and fearlessly and without undue interference by this Court.” The Court also reproduced the remark of Chagla C. J. in State v. Nilkanth Shripad, which stated that “it is very necessary, in order to maintain the independence of the judiciary, that every Magistrate, however junior, should feel that he can fearlessly give expression to his own opinion in the judgment which he delivers. If our Magistrates feel that they cannot frankly and fearlessly deal with matters that come before them and that the High Court is likely to interfere with their opinions, the independence of the judiciary might be seriously undermined.” The writer expressed complete agreement with these observations and reiterated that every judicial officer must be free to express his mind, referring to the authorities (1927) 1 T.R. 9 Lab, 269, 275 and (2) I.L.R. 1954 Bom. 148, 157, 160, particularly when appreciating evidence before him. The writer noted that the particular phraseology employed by a judge depends on his natural reaction to falsehood, his command of the English language, and his facility of expression. Creating in a judge’s mind an obligation to conform to a particular pattern that may or may not please the appellate Court is deemed highly detrimental to the discharge of judicial functions. The writer acknowledged that a judge may sometimes overstep the mark, but when public interests conflict, the lesser interest should yield to the larger one. An unmerited and undeserved insult to a witness may occasionally be tolerated in the broader interest of preserving judicial independence.

The writer emphasized that a duty is imposed on each judicial officer not to divert from the even course of justice by making disparaging or undeserved remarks about persons who appear before him as witnesses or otherwise. Moderation in expression, the writer argued, lends dignity to the office and fosters greater respect for the judiciary. Nevertheless, occasions may arise when a judge, without justification, casts aspersions on a witness or any other person not before him, thereby affecting that person’s character, reputation, or even career. The writer observed that such cases are very rare, but when they occur, the writer agreed with the Full Bench of the Bombay High Court that the appellate Court may, in a suitable case, judicially correct the lower Court’s observations by declaring them unjustified, unfounded, wholly wrong, or improper. This correction can be exercised under the inherent power preserved in section 561‑A of the Code of Criminal Procedure, but only in exceptional cases where the party concerned would suffer irrevocable harm. From this discussion the writer derived the principle that a judgment of a criminal Court is final and may be set aside or modified only in accordance with the law.

First, the Court reiterated that a judgment of a criminal court is final and may be set aside or modified only in the manner prescribed by law. Second, the Court affirmed that every judge, irrespective of his rank in the judicial hierarchy, possesses an unrestricted right to express his views on any matter before him, provided that he does so without fear or favour. Third, the Court emphasized that a judge has a corresponding self‑imposed duty not to make irrelevant remarks or observations that lack any foundation, especially when such remarks concern the character or reputation of witnesses or parties who are not present before the court. Fourth, the Court recognised that an appellate court has jurisdiction to judicially correct such unfounded observations, but that power will be exercised only in exceptional cases where the remarks would cause irrevocable harm to a witness or a party not before the appellate court. Having set out these principles, the Court proceeded to apply them to the facts of the present case.

In the case at hand, a bail application was pending before a Munsif‑Magistrate on the ground that the accused persons were ill. The Magistrate directed the medical officer to submit a report on their health. The medical officer complied by sending a report stating that he had examined the accused and found that they were suffering from hookworm infection and were anaemic. According to the appellant’s statement of the case, the medical officer had indeed conducted a clinical examination and examined the accused’s stool samples, but he failed to attach to his report the detailed results of those examinations, including the specific blood and stool test findings. The learned Munsif‑Magistrate observed that no actual examination report accompanied the petition and described this omission as an extreme case of carelessness on the part of the doctor. The Magistrate expressed that, as a judicial officer, he could not rely solely on the doctor’s unaided statement—i.e., ipsi‑dixit—without the supporting clinical data in order to decide whether the accused were sufficiently ill to deserve bail. The Court then posed the question whether the Magistrate’s characterization of the doctor’s failure to submit a detailed report as “extreme carelessness” was an observation that required correction by the appellate court on the basis that it constituted an exceptional case deserving judicial interference. The High Court, in its judgment, observed that the Magistrate’s observation was not wholly unjustified and that the doctor should have explained why the accused were described as anaemic. The High Court further concluded that labeling the doctor as careless did not constitute any impropriety, noting that another court might view the matter differently but that such a difference was not a sufficient ground to overturn the observation. The High Court warned that accepting the petition on this basis would place unnecessary fetters on a court’s discretion in assessing witnesses or evidence. Accordingly, the High Court dismissed the petition. The present matter now turns on the question whether, under these circumstances, this Court should, in exercise of its powers under Article 136 of the Constitution, interfere with the High Court’s order.

The Court examined whether, under Article 136 of the Constitution, it should intervene in the order of the High Court, and whether the circumstances constituted an exceptional case warranting such interference. It observed that the High Court, exercising its discretion and for the reasons it recorded, had refused to expunge the remarks in question. The Court concluded that the matter did not merit interference by this Court exercising its extraordinary jurisdiction. Apart from that conclusion, the Court expressed complete agreement with the observations of the High Court. It stated that a judicial officer does not surrender his judgment in medical matters to the mere assertion of a doctor. The Court noted that a doctor’s opinion carries great weight, but only when it is supported by the material on which the opinion was formed. It further observed that if the doctor does not disclose the particulars of the clinical findings, the Court cannot reach a conclusion that the accused were sufficiently ill to justify release on bail. In the present case, the Magistrate had described the doctor as grossly negligent, and the Court held that this observation was neither irrelevant nor without foundation. Consequently, the appeal was dismissed. The judgment was delivered by Justice Mudholkar.In the appeal, which had been filed by special leave against a judgment of the High Court of Patna, the central question concerned the powers of the High Court under section 561‑A of the Code of Criminal Procedure to expunge remarks made in its judgment or order against a person who was neither a party nor a witness to the proceeding. The factual backdrop was as follows: a bail application had been filed in the court of Munsif Magistrate B. Rai at Jahanabad on behalf of two accused persons in a criminal case pending before that court, on the ground that the accused were seriously ill while detained in jail. On 3 October 1959, the Magistrate issued an order directing the Civil Assistant Surgeon, who also served as Superintendent of the Sub‑jail, to report on the health of the accused. On 7 October 1959, the Civil Assistant Surgeon, Mr. Sharan, signed in his capacity as Superintendent and submitted a report stating that the accused Ramsewak Dusadh and Ramdeo Dusadh, both sons of Dillan Dusadh of Havellipur village in Ghosi police station, Gaya district, were suffering from hookworm infection and were anaemic. The report was addressed to the Magistrate. On 19 October 1959, the Magistrate issued an order releasing the accused on bail and, in the course of that order, made certain observations that the appellant sought to have expunged. For reasons that were not clearly explained, the Magistrate treated the report as a “petition” and criticized Dr. Sharan for failing to recognize that a judicial order could be based only on his report and not on a “petition.” The Magistrate also found further faults with Dr. Sharan, a point that will be considered in the subsequent discussion.

The learned magistrate found fault with Dr Sharan on two grounds. First, the report appeared to be written in a hand different from the doctor’s own and bore only his signature. Second, the magistrate observed that no actual examination report was attached to the document, which he mistakenly referred to as a “petition.” On this basis the magistrate recorded in his order that the doctor had shown “an extreme case of carelessness” and directed that a copy of the alleged petition together with the order sheet be forwarded to the Civil Surgeon of Gaya for his information. The report submitted by Dr Sharan was framed in the ordinary format used for medical examinations. Had the magistrate harboured any doubt about its authenticity or completeness, he could have sought clarification by writing to the doctor and requesting the missing particulars. Such a step might have caused a postponement of the proceedings and consequently delayed the issuance of an order. Nevertheless, the magistrate did not appear to consider the report inadequate, for he acted on it and released the accused on bail on the very same day, namely 19 October. The Court regarded these observations as trivial and not the sort of matter that should have been raised before it. While the magistrate did describe the doctor as careless and transmitted a copy of his order directly to the doctor’s departmental superior, thereby implying that corrective action might be taken, the fact that the magistrate relied on the doctor’s report and incorrectly labelled it a petition meant that his remarks could not reasonably be viewed by the doctor’s superiors as serious. Consequently, no actual injury, let alone any irreparable injury, could be said to arise from those remarks, and the Court saw no reason to pursue the issue further. However, counsel for the State of Bihar, Mr D P Singh, raised an objection to the jurisdiction of the High Court under section 561‑A of the Code of Criminal Procedure, a point of general importance that required a response. Section 561‑A provides: “Nothing in this Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” This provision was inserted when the Code was substantially amended in 1923. It was not intended to create new powers for the High Courts; rather, it reaffirmed that courts exist not only to enforce the law but also to secure the ends of justice in its widest sense. Accordingly, all courts, including the High Courts, may exercise the powers expressly conferred by statutes as well as the inherent powers to do justice that are either expressly preserved or not removed by any statute.

The discussion in this opinion will be confined strictly to the inherent powers possessed by the High Court when dealing with criminal cases. Section 561-A of the Code of Criminal Procedure expressly states that the inherent power of the High Court to perform certain acts is preserved. Consequently, the Court must determine whether the authority to delete any portion of a subordinate court’s judgment is an inherent power of the High Court and therefore is deemed preserved. The counsel for the respondent, identified as Mr. Singh, does not dispute the High Court’s authority to remove remarks from a subordinate court’s judgment or order when hearing an appeal from that court. In the appeal concerning The State of U. P. v. J. N. Bagga, this Court ordered the removal of certain remarks, yet the judgment did not contain any discussion on the issue because the existence of the power was not challenged. The present analysis does not address the powers of an appellate court, but rather focuses on whether the High Court’s inherent power to achieve justice includes the ability to strike out passages from a subordinate judgment independent of its statutory power to modify, amend, or reverse such judgments in appeals or revisions. Observations recorded by a subordinate court in its judgment or order can seriously affect only the parties directly involved in that case, and a party may seek redress through an appeal or revision if those observations are irrelevant or unjustifiable. However, the Court questions what remedy is available to a stranger to the proceeding or to a lawyer engaged in the case who is harmed by similar unjustifiable remarks. The Court asks whether such a person must endure the consequences of irrelevant or unjustifiable observations when a party to the proceeding would be entitled to seek relief. The Court characterizes it as a miscarriage of justice if an innocent outsider is forced to endure the effect of harmful court observations without any avenue for redress. The Court refers to a case involving an injured stranger, specifically Criminal Appeal No. 122 of 1959 decided on 16 January 1961, as an example where relief would be possible only if some court possessed the power to expunge such remarks. The question therefore arises whether the highest court in the State must invariably be deemed to have that power and whether exercising it would amount to altering a judgment, which must be authorized by the Code. The Court notes that several authorities were cited before it and that it will consider them in chronological order, beginning with the matter of H. Daly.

In this case the Court stated that it had the authority to delete portions of judgments that were either issued by the Court itself or by subordinate tribunals, and that this authority was firmly established by the inclusion of section 561‑A in the Code of Criminal Procedure. While reaching this conclusion, the learned judge examined five reported decisions of the Chief Court of Lahore and highlighted that that court had asserted the power to strike out remarks when the circumstances warranted such action. The judgment also mentioned, as an incidental observation, the decision in Panchanan Banerjee v. Upendra Nath (2), where it was held that the High Court possessed an inherent power to order the removal of passages that were either irrelevant or inadmissible and that harmed the reputation of individuals appearing before the Court. It was further noted that the Panchanan Banerjee case involved an appeal against an acquittal, and that the learned judge, Suleiman J., exercised appellate jurisdiction to order the expunction of certain observations, referring in that context to the Court’s inherent powers. However, the Court observed that neither the Lahore decisions nor the Panchanan Banerjee case contained any detailed discussion on the specific question of expunging passages. The judgment then turned to the decision in Rogers v. Shriniwas Gopal Kawale (3), wherein Beaumont C. J., citing reports I.L.R. 9 Lah 269 (1927), I.L.R. 49 All 254 (1926) and I.L.R. (Bom.) 415 (1940), held that the High Court lacked authority under section 561‑A to delete passages from judgments that had not been presented to it through a regular appeal or revision. In that case an application under section 561‑A sought to remove certain criticisms of a witness made by the Additional Sessions Judge of Poona in a criminal appeal. While considering the application, the learned Chief Justice observed: “It is obvious that, if the jurisdiction exists, its exercise must place the Court in an anomalous position. The Court must go through the record of a case in which it is not called upon to act judicially at the instance of a party who is not aggrieved by the decision, and it may well be that the Court will have to come to a conclusion upon matters not in issue in the proceedings.” The Chief Justice referred to the decisions in Emperor v. C. Dunn and Emperor v. Sidaramaya (2), noting that the former held that the High Court had no such jurisdiction and that the latter expressed doubt as to whether such jurisdiction existed in the High Court. He expressed disagreement with the views expressed in Panchanan Banerjee’s case (3) and in Daly’s case (4), and he remarked: “With all respect to the learned judges who have taken a different view, I am quite unable to see how section 561‑A affects the question. That section provides that nothing in the Code shall be deemed to limit or affect the inherent power of the High Court to make such orders as may be necessary to give effect to any order under the Code, or to prevent abuse of the process of”.

In this part of the judgment the Court examined the effect of section 561‑A, observing that the provision merely reiterates that the High Court retains its existing inherent powers and does not add any new authority. The Court emphasized that no court, as indicated by the authorities cited – (1) (1922) 44 All. 401, (2) (1917) 19 Bom. L.R. 912, (3) (1926) I.L.R. 49 AD. 254 and (4) (1927) I.L.R. 9 Lah. 269 – can claim an inherent power to alter the judgment of another court. The Court explained that all powers to entertain appeals or revisions are derived from statutes and are therefore not inherent in a superior court. When a matter is properly presented before a superior court, the Court may, of course, invoke its inherent powers to achieve complete justice. However, the authority to initiate an appeal or a revision must be founded on a statutory enactment or a rule having statutory effect. The Court therefore concluded that the inherent jurisdiction of a higher court does not extend to changing a lower court’s judgment unless a specific statutory provision grants such a power.

The learned Chief Justice then turned to the question of superintendence conferred on the High Court by section 224 of the Government of India Act. He noted that this section does not empower the High Court to correct the judgment of a subordinate court. He further pointed out that sections 435 and 439 of the Code of Criminal Procedure only permit the High Court to examine the correctness, legality or propriety of any finding, sentence, or order of an inferior court, or to assess the regularity of the proceeding before it. While hearing an appeal or revision, the High Court may pass any order that is consequential or incidental to the order under review, and it may expunge any remarks in the lower court’s judgment that it deems inappropriate. Nevertheless, the Chief Justice observed that it is difficult to justify the removal of portions of a judgment that provide reasons for an order not presently under appeal, as such removal does not appear to be consequential or incidental to the appealed matter. If the Court believes that such an action is necessary, it may obtain the record and act in the regular course of a revision. Finally, the Chief Justice affirmed that the decision in Emperor v. Dunn (1) (1922) 44 AU. 401 remained correct and was not altered by the introduction of section 561‑A. He added that a later Full Bench in State v. Nilkanth Shripad Bhave Chagla C. partially overruled that judgment, concurring with Beaumont C.J. that no court can claim an inherent power to alter another court’s judgment. The Court also noted Beaumont C.J.’s observation that the High Court possesses an inherent jurisdiction to alter a judgment once the matter comes before it in appeal or revision, and questioned how such jurisdiction could arise solely because the matter is before the High Court.

In dealing with the question of whether a higher court possesses inherent jurisdiction, the learned Chief Justice first observed that the court must either have such inherent power or lack it altogether. He explained that, if the court does possess inherent jurisdiction, that power may be exercised either in the context of an appeal or in the context of a revision, and it may also be invoked under the provisions of section 561‑A. The Chief Justice then quoted the additional observations of Beaumont C. J., which had been reproduced earlier, and noted Beaumont’s difficulty in understanding how a court could “act regularly in revision if there is no effective order which can be challenged in revision.” The Chief Justice expressed the view that the earlier judgment was correct to the extent that it held that a superior court does not have inherent jurisdiction to alter the judgment of another court. However, he added that the judgment was not correct insofar as it declared that the power to judicially correct a lower court’s judgment arises only in appeals and revisions. According to him, the High Court’s power to judicially correct any subordinate judge exists independently of whether the application comes before it as an appeal or a revision, and the High Court may exercise its corrective authority in any application that it is able to entertain under section 561‑A.

The Chief Justice further referred to an unreported decision of the Bombay High Court, which had taken the view that the High Court possessed jurisdiction to expunge remarks from a lower court’s judgment even when the matter was not before it in appeal or revision, and he noted that the Bombay High Court had expressed difficulty in appreciating the view adopted in Roger’s case. He pointed out the inconsistency in Beaumont’s reasoning, which suggested that the power to alter a subordinate court’s judgment was not an inherent power yet could become an inherent power merely because the matter was before the High Court in what was termed a “regular revision.” The Chief Justice asserted that, when entertaining an application under section 561‑A, the High Court should not expunge remarks but should instead judicially correct the lower court’s judgment by means of its own judgment. He found it hard to reconcile Beaumont’s statement that the High Court lacks inherent power to alter a subordinate court’s judgment with the opposite statement that the High Court can alter such a judgment when the matter comes before it by way of regular revision. He concluded that the High Court either has inherent power to alter a subordinate judgment or it does not; if it lacks such power, the mere fact that a regular proceeding arising out of the subordinate judgment is before it makes no difference, because even then the High Court’s revisional powers under section 439 of the Criminal Procedure Code do not enable it to expunge remarks.

The Court noted that the learned Chief Justice had asserted that the High Court possessed an inherent power to expunge remarks that were considered injurious or irrelevant. This assertion appeared to conflict with an earlier statement that the High Court lacked any such inherent authority. The Court also observed difficulty in reconciling the judgment of Chagla C.J., who maintained that, while an application under section 561‑A permitted the High Court to judicially correct a subordinate court’s judgment, the same Court could not expunge remarks because doing so would constitute an alteration of the subordinate court’s judgment. The Court examined the proposition that removing a passage which did not relate to the controversy decided by the judgment would not necessarily result in an alteration of the judgment itself. It explained that a judgment is composed of the court’s verdict together with the reasons that support that verdict. When a superior court supersedes, alters, or amends either the verdict or the reasons, it is effectively reversing or modifying the judgment. However, the Court emphasized that a document containing the judgment may also include additional material that is unrelated to either the verdict or the reasons. Such extraneous material, merely because it appears in the same document, could not be treated as part of the judgment. Consequently, the inclusion of irrelevant matter within the judgment did not transform that material into an integral component of the judgment. The Court held that the power to delete or to order the deletion of such irrelevant material, for the purpose of securing the ends of justice, must be regarded as inherent in the High Court.

The Court further observed that the learned Chief Justice appeared to accept that, pursuant to section 561‑A, an application could be filed before the High Court alleging that a subordinate court had made remarks that were unjustifiable or irrelevant, and that the filing of such an application resulted in a judicial proceeding before the High Court. The Chief Justice also accepted that, in appropriate circumstances, the High Court could correct the subordinate court’s judgment as a consequence of such a proceeding. The Court then queried how and when the High Court would exercise this corrective power. Referring to an earlier passage of the Chief Justice’s judgment, the Court reproduced the following statement: “A judgment of a lower court may be wrong; it may even be perverse. The proper way to attack that judgment is by bringing it under the scrutiny of the superior Court and getting the judgment of the lower Court judicially corrected. But is it proper for the superior Court to alter or amend the judgment which has already been delivered? In our opinion, the inherent power that the High Court possesses is, in proper cases, even though no appeal or revision may be preferred to this Court, to judicially correct the observations of the lower Court by ….” The Court noted that this excerpt illustrated the Chief Justice’s view that the High Court’s inherent power could be employed to correct observations without necessarily altering the substantive judgment.

In this case the Court noted that the observations made by a Magistrate could be described as entirely unjustified, without any foundation, wholly wrong, or improper. It was pointed out that the Advocate‑General who appeared in the matter had submitted that merely making such observations or criticizing a subordinate court was qualitatively different from the act of removing objectionable remarks from the record. The learned Chief Justice observed that it is not necessary for this Court to express displeasure with any observations made by a Magistrate or a Sessions Judge by physically deleting those remarks from the judgment delivered by them. He further stated that it would be incorrect to say that the power to delete or expunge passages from a judgment constitutes an inherent power of any superior Court, and therefore not an inherent power of the High Court. While the learned Chief Justice correctly held that the High Court possesses an inherent power to judicially correct a subordinate court, even when that court makes harmful remarks against a person who is not a party to the proceedings, he qualified that the sole content of that power amounts only to the expression of the superior Court’s displeasure at the offending remarks. The Court found no principled basis on which such a limitation on the High Court’s inherent powers could be justified. Moreover, a mere expression of displeasure by the High Court does not amount to a “judical correction” of the error committed by the subordinate court, because despite the disapproval the remarks remain on the record. The usual method employed by a superior Court for judicial correction does not consist merely of disagreeing with the subordinate Court’s view; rather, it involves erasing the error so that it no longer has legal effect. Accordingly, when irrelevant remarks of a subordinate court are identified as unjustifiable and harmful, the appropriate remedy is to either expunge those remarks or direct that they be expunged so that they cease to have any effect. The Court affirmed that the judgment of a tribunal empowered by law to decide matters affecting the rights of parties is inviolable unless the law expressly permits it to be questioned or interfered with. In such circumstances, a judgment may be challenged or interfered with only by the authority specified by law and only to the extent allowed by the express provisions. No other court, including the High Court, may entertain a challenge or exercise any power over a judgment unless expressly authorized by law, because its inherent power is not applicable for that purpose when the judgment has become final.

In this case, the Court explained that the protection afforded to a judgment by law applies only to the core components of that judgment, namely the final decision and the reasoning that supports it. The protection does not extend to portions of a judgment that may appear to be part of it but are in fact not essential to its substance. Because of this limitation, the majority of High Courts have consistently held that they possess the authority to remove, or expunge, certain passages from the judgments of subordinate courts when special circumstances call for it. In other words, this power has always existed and may be exercised whenever it is required to achieve justice. It is noteworthy that, although the Code was substantially amended in 1955, the legislature did not add any provision in section 561‑A or any other clause to indicate that this power had been withdrawn or denied. Consequently, when a High Court deletes extraneous remarks from a subordinate court’s order or judgment, it is not altering the judgment on its merits or changing any substantive legal determination; rather, it is simply eliminating material that is unrelated to the issue that was before the lower court and that should never have been included. The question then arises whether a prohibition on this power can be inferred from the fact that sections 423 and 439, which deal with appellate and revisional jurisdiction, remain silent on the matter. The Court clarified that the silence of those sections does not amount to a denial of the power, because the removal of irrelevant comments does not constitute an amendment or alteration of the judgment or order. While the act of expunging does involve taking out something that was originally part of the written document, the effect is limited to removing material that is not integral to the judgment, and this interference is justified by the paramount need to secure the ends of justice. The Court further described the inherent powers of a State High Court as those powers that arise by virtue of its position as the highest court in the State, possessing general jurisdiction over both civil and criminal courts beneath it. These inherent powers are an inalienable attribute of the Court’s status and include both administrative and judicial aspects. The judicial aspect becomes operative when the power is used in relation to a judicial order for the purpose of achieving justice. The expression “ends of justice” is not meant to denote an abstract or philosophical notion of justice, but rather the concrete administration of justice as defined by statutory law and common law. Finally, the Court emphasized that this inherent power to expunge is not a routine remedy that can be invoked whenever the High Court perceives a miscarriage of justice; it is an extraordinary power that may be applied only in those situations where no specific statutory remedy is available and where its use is necessary to give effect to procedural requirements, to prevent abuse of the court’s process, or to otherwise uphold the ends of justice.

In this case, the Court noted that the procedural statutes of the State are designed to correct most errors made by subordinate courts that could lead to a miscarriage of justice, and that such errors may be rectified only by following the procedure laid down by law and not through any other means. The Court explained that the inherent powers of the High Court are extraordinary powers that may be invoked only when no specific express power enables the High Court to act, and when the express powers that do exist do not exclude the existence of such inherent power. With respect to matters arising from the exercise of criminal jurisdiction by subordinate courts, the Court further stated that the exercise of an inherent power is permissible only if it is necessary to implement an order under the Code of Criminal Procedure, to prevent an abuse of the court’s process, or otherwise to secure the ends of justice. The Court observed that the power to expunge remarks, while indeed extraordinary, nevertheless exists to address a type of grievance for which the statute provides no express remedy. The Court pointed out that the statute’s acknowledgement that High Courts are not limited to powers expressly conferred upon them, and that they may continue to exercise their inherent powers, makes three points clear. First, extraordinary situations may require the use of extraordinary powers. Second, High Courts possess an inherent authority to ensure the ends of justice. Third, the express provisions of the Code do not diminish that authority. The Court noted that the precise scope of the High Court’s inherent powers is intentionally left undefined in section 561‑A, because it is impossible to enumerate every circumstance that might demand their use. The Court clarified that section 561‑A does not create a new power; rather, it recognises a general power to do whatever is necessary “to give effect to any order under this Code, or to prevent abuse of the process of any Court or otherwise to secure the ends of justice.” The Court added that the statute does not limit the recognised inherent power to only those instances that have previously been exercised; instead, it declares that High Courts have always possessed such inherent power and that this power has never been withdrawn. Accordingly, whenever a criminal case raises the question of whether the High Court can issue a particular order in the absence of an express provision in the Code or any other statute, the appropriate test is whether such an order is required to give effect to the Code, to prevent abuse of the court’s process, or to secure the ends of justice. Finally, the Court emphasized that when the High Court is called upon to consider the exercise of an undefined inherent power in any specific case, it must proceed with great caution and circumspection.

In this case the Court observed that when an aggrieved party seeks to remove a passage from a subordinate court’s order or judgment, the High Court must be fully satisfied that the passage is irrelevant. It must also be convinced that retaining the passage would cause serious harm to the person referred to and that its removal would not affect the reasons for the judgment or order. The Court noted that Chief Justice Chagla had emphasized this requirement in the earlier decision and affirmed its necessity for preserving judicial independence. Accordingly, the Court explained that every presiding officer of a criminal court, however junior, must be able to express his view fearlessly in his judgment or order. No impression may be created that the High Court will readily interfere with his opinions, because such a perception would seriously undermine his independence. The Court then summarized that each High Court, as the highest criminal court in a State, possesses inherent power to make any order necessary to secure the ends of justice. That inherent power includes the authority to order the expunction of irrelevant passages from the judgment or order of a subordinate court, and it may be exercised in appropriate cases to achieve justice. However, the Court stressed that because this power is extraordinary, it should be invoked only to correct a flagrant abuse of power by a subordinate court. Such abuse includes the inclusion of comments that are unrelated to the dispute, unwarranted, or likely to harm or prejudice another person. Applying this principle to the present appeal, the Court found that the passages in question were not likely to cause harm to the appellant nor were they likely to prejudice him. Consequently, the Court held that the facts did not justify the use of the extraordinary power under section 561‑A, and the appeal was dismissed.