The State of Uttar Pradesh vs Mohammad Naim

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

Court: Supreme Court of India

Case Number: Criminal Appeal No. 81 of 1962

Decision Date: 15 March 1963

Coram: S.K. Das, A.K. Sarkar, K.N. Wanchoo, K.C. Das Gupta

In this judgment, the Supreme Court of India reported the case titled The State of Uttar Pradesh versus Mohammad Naim, decided on the fifteenth day of March, 1963. The opinion was authored by Justice S K Das and was delivered by a bench consisting of Justices S K Das, A K Sarkar, K N Wanchoo and K C Das Gupta. The citation of the decision appears in the 1964 All India Reporter at page 703 and in the Supreme Court Reports (Second Series) at page 363, with additional references recorded in various law reports. The cause is identified as a criminal appeal in which the State of Uttar Pradesh acted as petitioner and Mohammad Naim was the respondent. The judgment also refers to the provisions of the Code of Criminal Procedure, 1898, specifically section 561‑A, which deals with the power of the High Court to expunge remarks from its judgments.

The factual background disclosed that while disposing of the criminal appeal, the High Court ordered that a notice be issued to an investigating officer identified only as “N” requiring him to show cause why a complaint should not be instituted against him under section 195 of the Indian Penal Code. The officer appeared before the Court, expressed contrition, and begged for mercy. Although the Court accepted the officer’s apology with evident hesitation, it also made a series of critical observations directed at the police force. The Court’s remarks were recorded as follows: “(a) if I had felt that with my lone efforts I could have cleaned this augean stable, which is the police force, I would not have hesitated to wage this war single handed; (b) that there is not, a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force; (c) where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks.” Subsequent to this judgment, the State of Uttar Pradesh filed an application under section 561‑A of the Code of Criminal Procedure seeking to have the aforementioned remarks expunged from the judgment. The High Court dismissed the application on two grounds: first, that the State was not an aggrieved party and therefore lacked locus standi to invoke section 561‑A; and second, that there were no sufficient reasons to justify the removal of the Court’s comments.

By way of special leave, the State appealed the High Court’s order. The Supreme Court, after hearing the appeal, allowed it and held that the State Government qualified as an aggrieved party capable of moving the High Court under section 561‑A for the expunction of the remarks in question. The Court explained that the State Government is the authority exercising the executive power of the State, and that the police department functions as a department through which the State enforces law and order. Consequently, observations made against the police force constitute observations against the State’s own department, thereby giving the State a right to be aggrieved. The Court further observed that the State, being a juristic person, is entitled to file an application under section 561‑A, and that the Code of Criminal Procedure itself anticipates that the State may file appeals and applications as a party. Finally, the Court clarified that section 561‑A did not create a new power for the High Courts but only preserved the inherent jurisdiction that the Courts already possessed to expunge remarks when necessary to prevent an abuse of process or to secure the ends of justice.

The Court explained that section 561‑A did not grant any new authority to the High Courts; it only confirmed the courts’ already existing inherent powers. Accordingly, the High Court may, exercising its inherent jurisdiction, remove remarks that it or a lower court has made when such removal is required to prevent an abuse of the Court’s process or to secure the ends of justice. The Court emphasized that this jurisdiction is of an exceptional character and should be invoked only in exceptional cases. The Court referred to several authorities that illustrate this principle, including Jairam Das v. Emperor, A.I.R. (1945) PC 94; Emperor v. Nazir Ahmad, A.I.R. (1945) PC 18; Emperor v. Ch. Mohd. Hassan, A.I.R. (1943) Lah. 298; State v. Chhotey Lal, 1955 A.L.J. 240; Lalit Kumar v. S.S. Bose, A.I.R. 1957 All 398; S. Lal Singh v. State, A.I.R. (1959) Punj. 211; Ramsagar Singh v. Chandrika Singh, A.I.R. (1961) Pat. 364; and In re Ramaswami, A.I.R. (1958) Mad. 305, which the Court approved. The Court noted that the decision in State v. Nilkanth Shripad Bhave, I.L.R. 1954 Bom. 148, was not approved. The Court underscored a principle of paramount importance in the administration of justice: judges and magistrates must retain their freedom and be allowed to perform their functions fearlessly and without interference from any body, including the Supreme Court. At the same time, the Court stressed that when delivering opinions, judges and magistrates must be guided by considerations of justice, fair play, and restraint, and that their pronouncements should ordinarily be sober, moderate, and reserved. The Court observed that the remarks made in the judgment concerning the entire police force of the State were not justified by the facts of the case, nor were they necessary for the disposal of the case, and therefore should have been removed. The judgment then listed the details of the criminal appeal: Criminal Appeal No. 81 of 1962, filed by special leave against the order dated 23 October 1961 of the Allahabad High Court (Lucknow Bench) in Criminal Miscellaneous Case No. 348/1961. Counsel for the appellant comprised C. B. Agarwala, G. C. Mathur, Shankar Sahai and C. P. Lal, while J. P. Goyal appeared for the Hon’ble Chief Justice and his companion judges of the Allahabad High Court on notice. The judgment, delivered on 15 March 1963 by Justice S. K. Das, noted that the appeal raised unusual features. The facts stated that the Additional Sessions Judge of Hardoi, Uttar Pradesh, had tried Zafar Ali Khan and three others under sections 452 and 307 read with section 34 of the Indian Penal Code. The case originated from a first information report lodged at Shahabad police station, purportedly at about 3:30 a.m. by Farasat Ali Khan on the night of 7–8 November 1958, and the investigation was conducted by Mohammad Naim, then the Station Officer of Shahabad police station.

Mohammad Naim was the Station Officer of Shahabad police station. The Additional Sessions Judge of Hardoi convicted the accused persons, but the judge also recorded, based on the evidence, that it was more probable that the first information report had actually been lodged at the police station at around seven or eight in the morning rather than at three‑thirty in the night. After the conviction and the sentences imposed by the Additional Sessions Judge, an appeal was filed before the Allahabad High Court, Lucknow Bench. The appeal was heard by Justice Mulla, who examined the material and concluded that Mohammad Naim had concocted a wholly implausible version of events, a fabrication that destroyed the evidentiary value of the statements of Farasat Ali and his wife, Ummati Begum, who were two of the chief prosecution witnesses. Justice Mulla allowed the appeal, set aside the convictions and the sentences of the four appellants, and made further observations in his judgment. He stated, “There is ample evidence to prove that the first information report in this case was not lodged at three‑thirty a.m. This is also the finding of the trial court. The time noted in the first information report is, therefore, a fictitious time and a fabrication has been made in the public records. I, therefore, direct the office to issue a notice to Sri Mohammad Naim as to why a complaint should not be instituted against him by this court under section 195 of the Indian Penal Code.” Pursuant to this direction, a notice was served on Mohammad Naim requiring him to show cause why a complaint for an offence under section 195 of the Indian Penal Code should not be instituted against him for fabricating the time at which the first information report was said to have been lodged. Mohammad Naim appeared before the judge, pleaded for the court’s mercy, and begged for forgiveness. The matter was subsequently dealt with in Criminal Miscellaneous Case No. 87 of 1961. The judge accepted Mohammad Naim’s apology, but he recorded that his acceptance was made very hesitantly. While pronouncing the order that accepted the apology, the judge quoted several observations, which are reproduced below: “I issued the notice because I want to clean the public administration as far as possible but an individual’s efforts cannot go very far. If I had felt that with my lone efforts I could have cleaned this Augean stable, which is the police force, I would not have hesitated to wage this war single‑handed. I am on the verge of retirement and taking such steps for two months or three months more would not make any difference to the constitution and the character of the police force… Somehow the police force in general, barring few exceptions, seems to have come to the conclusion that crime cannot be investigated and security cannot be preserved by following the law and this can only be achieved by breaking or circumventing the law. At least the traditions of a hundred years indicate that this is what”

The judge explained that the officials of the police force held the belief that law‑breaking was necessary to investigate crime and protect security, and that this belief must be eliminated if any improvement is to be achieved. He further stated, with a sense of responsibility, that no unlawful group anywhere in the country had a record of criminal activity comparable to that of the Indian Police Force, which he described as an organised unit. He added that if the police were to be staffed by officers such as Mohammad Naim, the only alternative would be to discard the Constitution, abandon democracy and the rights of citizens, and to alter the meaning of law in both statutory enactments and dictionaries. For these reasons he accepted the apology of Mohammad Naim and decided not to file any criminal complaint against him, concluding that when almost every fish in a pond, except perhaps a few, emits an odor, it is futile to single out one or two and declare that they alone stink. Consequently, he ordered the discharge of the notice issued against Shri Mohammad Naim.

The State of Uttar Pradesh was dissatisfied with several of the judge’s observations and filed an application under section 561‑A of the Code of Criminal Procedure seeking to have those observations expunged. The State grouped the contested observations under three headings in paragraph 4 of its petition: (a) the remark that “If I had felt that with my lone efforts I could have cleaned this Augean stable, which is the police force, I would not have hesitated to wage this war single‑handed”; (b) the claim that “there is not a single lawless group in the whole of the country whose record of crime comes anywhere near the record of that organised unit which is known as the Indian Police Force”; and (c) the analogy that “where every fish barring perhaps a few stinks, it is idle to pick out one or two and say that it stinks.” The State argued that these statements contemptuously brought the entire police force into disrepute, lowered its prestige before the public, tended to interfere with the administration of the country and injured the security of the State. It further contended that the observations were not essential to the main order of the learned judge regarding the notice to Mohammad Naim, could be separated from that order, and were unsupported by any evidence in the record. Justice Mulla heard the application and reached two principal conclusions. First, he held that the State of Uttar Pradesh was not an aggrieved party and therefore lacked locus standi to invoke section 561‑A of the Code of Criminal Procedure for the removal of the observations. Second, he determined that the observations required only a single clarification: they were made with reference to the police force of Uttar Pradesh and not to the police force of the entire country.

The Court noted that the observations referred to in paragraph (a) would have been removed if the party who was actually affected had approached the learned judge for relief. Regarding the remaining observations, the Court held that there were no satisfactory reasons to order their removal because those remarks were founded on the learned judge’s own knowledge and experience and did not contain any exaggerations. Consequently, the Court dismissed the State’s application. After that dismissal, the State sought a certificate of fitness from the High Court under Article 134(1)(c) of the Constitution of India. When that request was denied, the State applied to the Supreme Court for special leave to appeal under Article 136 of the Constitution. The Supreme Court granted that special leave on 12 April 1962. The present appeal therefore arises from the order of the learned High Court judge who had rejected the State’s application filed under section 5(31‑A) of the Code of Criminal Procedure, and the appeal proceeds on the basis of the leave that was granted.

The first question for determination was whether the State of Uttar Pradesh possessed locus standi to file an application under section 561‑A of the Code of Criminal Procedure. The Court began by reading the provision, which declares that nothing in the Code shall be construed as limiting or affecting the inherent power of a High Court to make such orders as may be necessary to give effect to any order under the Code, to prevent abuse of the process of any court, or otherwise to secure the ends of justice. It is now well settled that this provision does not create any new power for a High Court; rather, it safeguards the pre‑existing inherent powers that a High Court already enjoys, powers that are needed, among other purposes, to secure the ends of justice. The provision thus preserves those inherent powers so that they are not thought to have been displaced by the express provisions of the Code. The Court referred to the authorities Jairam Das v Emperor and Emperor v Nazir Ahmad to illustrate this principle.

The Court then indicated that it would consider whether a High Court has the inherent authority to delete remarks made either by itself or by a lower court in order to prevent misuse of the judicial process or to secure the ends of justice. Assuming that such inherent power exists, the Court asked whether the State Government could invoke that jurisdiction. The learned High Court judge had offered two reasons for concluding that the State Government lacked locus standi under section 561‑A. First, the judge said that the State Government could not be said to have been personally aggrieved by the observations. Second, the judge observed that the State simultaneously represents the executive and the judiciary, and thus it would be anomalous for the State, acting through its executive function, to seek the deletion of remarks that were essentially judicial in nature.

The Court observed that the two reasons previously advanced for denying locus standi to the State Government were untenable. It explained that Article 154 of the Constitution vests the executive power of the State in the Governor, who may exercise that power directly or through subordinate officers. The Court noted that the term “State Government” acquires its meaning from the General Clauses Act, 1897, wherein it is defined as the authority or person authorized at the relevant date to exercise executive government in the State, and, after the commencement of the Constitution, it refers to the Governor of the State. The Court further affirmed that the police department forms a department of the State Government through which the State’s executive power concerning law and order is exercised.

Accordingly, the Court held that when the State Government believes that observations made by a court regarding a department or officers through whom the executive powers are exercised are sufficiently injurious to warrant the exercise of the High Court’s inherent power under section 561‑A of the Code of Criminal Procedure, the State Government should be regarded as the aggrieved party. The Court also emphasized that the State is a juristic person and that the Code of Criminal Procedure acknowledges several rights of the State Government, including the right to grant sanction and to move the court for necessary action, as reflected in sections 144(6), 190(2), 190(3), 196, 196‑A and 197. An illustrative provision is section 417, which confers upon the State Government a right of appeal to the High Court from any original or appellate order of acquittal rendered by a court other than a High Court.

The Court further observed that it is not disputed that the State Government may invoke the revisional jurisdiction of the High Court under section 439 of the Code, even though that provision does not expressly name the State Government. Consequently, the Court found no reason to prevent the State Government from filing an application under section 561‑A. It rejected the view that it would be anomalous for the State Government to seek redress when it feels aggrieved by remarks made against it. The Court clarified that the State Government may approach the High Court under section 561‑A in the same manner as it may direct the Public Prosecutor to present an appeal under section 417 or may, through an officer, invoke the jurisdiction under section 439. In conclusion, the Court held that the finding of the learned judge—that the State Government lacked locus standi to make an application under section 561‑A of the Code of Criminal Procedure—was erroneous.

The Court observed that the provision P.C. was erroneous in law. It pointed out that certain cases showed the State Government making similar applications while an appeal was pending, but those decisions did not address whether the State Government possessed locus standi to do so. Accordingly, the Court chose to decide the question on a principled basis rather than rely on the earlier cases where such applications had been made. The second issue before the Court concerned whether a High Court possessed an inherent power to delete remarks either made by itself or by a lower court in order to prevent abuse of process or to secure the ends of justice. Earlier judicial opinion on this point had been divided. The present state of case‑law, however, indicated that, except for a narrowly‑restricted view adopted by the Bombay High Court, other High Courts had held that, although the jurisdiction was of an exceptional character and was to be exercised only in rare circumstances, the High Court was nonetheless empowered to expunge portions of a judgment to achieve justice and to prevent misuse of the court’s process. The Court cited several authorities supporting this view, including Emperor v. Ch. Mohd. Hassan, State v. Chhotay Lal, Lalit Kumar v. S. S. Bose, S. Lal Singh v. State, Ram Sagar Singh v. Chandrika Singh, and In re Ramaswami. By contrast, the Bombay High Court had maintained that it lacked authority to delete passages from the judgment of an inferior court unless those passages were presented in a regular appeal or revision, although it recognized that an application under section 561‑A of the Criminal Procedure Code was maintainable and that, in appropriate cases, the High Court possessed inherent jurisdiction even absent an appeal or revision to correct observations that were unwarranted, unfounded, wholly wrong or improper, as seen in State v. Nilkanth Shripad Bhave. The Court also referred to its own earlier orders in State of U.P. v. J. N. Bagga, where it expunged certain remarks made against the State Government by a learned judge of the Allahabad High Court in an appeal from that court’s judgment, and in State of U.P. v. Ibrar Hussain, where it held that certain observations in the High Court’s judgment were unnecessary and were removed in an appeal. On this basis, the Court concluded that the view adopted by all High Courts other than the Bombay High Court was correct and that a High Court could, by exercising its inherent jurisdiction, delete remarks made by itself or by a lower court when such deletion was necessary to prevent abuse of process or to secure the ends of justice, recognizing that such power was to be exercised only in exceptional cases.

The Court noted that the inherent power to prevent abuse of the court process or otherwise to secure the ends of justice is of an exceptional character and may be exercised only in truly exceptional cases. In the interest of fairness to the counsel representing the appellants, the Court recorded that the counsel had submitted that the State Government would be satisfied if the Court either expunged the remarks in question or declared them wholly unwarranted on the facts of the case. The counsel further asserted that the real purpose of the present appeal was to remove the stigma that had been attached to the entire police force of the State by the observations of the learned judge. The counsel supported this submission by referring to several precedents, namely A.I.R. (1961) Pat. 364, A.I.R. (1958) Mad. 303, I.L.R. 1954 Bom. 148, the judgment in Criminal Appeal 122 of 1959 decided on 16 January 1961, and the judgment in Criminal Appeal 148 of 1959 decided on 28 April 1959. The State, by those remarks, was denied any opportunity to challenge the truth of the assertions made. The Court then posed the final question: whether the present matter constitutes an exceptional case in which the learned judge should have invoked his inherent jurisdiction under section 561‑A of the Criminal Procedure Code with respect to the observations complained of by the State Government. The Court emphasized that a principle of paramount importance in the administration of justice is the preservation of the proper freedom and independence of judges and magistrates, who must be permitted to perform their functions freely, fearlessly and without undue interference from any body, including this Court itself. Simultaneously, the Court stressed that judges and magistrates, when expressing their opinions, must be guided by considerations of justice, fairness and restraint, because sweeping generalisations often defeat the very purpose for which they are intended.

The Court observed that judicial practice has long recognised that, before making disparaging remarks against persons or authorities whose conduct is before the court, it is essential to consider three factors: first, whether the party whose conduct is criticised is present before the court or has been afforded an opportunity to explain or defend himself; second, whether there is evidence on record concerning that conduct which justifies the remarks; and third, whether it is necessary for the resolution of the case, as an integral part of the judgment, to comment on that conduct. The Court further noted that judicial pronouncements must remain judicial in nature and should ordinarily adhere to sobriety, moderation and reserve. In the instant case, the learned judge chose to make sweeping and general observations against the entire police force of the State, although the matter before him concerned only one police officer, Mohammad Naim, whose conduct legitimately attracted adverse comment. The judge later acknowledged that his own remarks were excessively general and sweeping, as reflected in a subsequent order in which he clarified that the observations were intended solely for the police force of Uttar Pradesh. This acknowledgment underscored the Court’s view that the general remarks were neither justified on the facts of the case nor necessary for its disposal.

In the judgment, the learned judge explained that his observations were directed only at the police force of Uttar Pradesh and added that, had the aggrieved party appeared before him, he would have removed those observations under the category previously identified as head (a). The Court held that the comments concerning the entire police force of the State lacked justification on the established facts and were unnecessary for deciding the proceedings. The learned judge admitted that his broad statements were not supported by any evidence in the record and that they were derived largely from his own knowledge and experience acquired at the Bar and the Bench. Counsel for the appellant frankly acknowledged before the Court that the judge possessed extensive experience in criminal matters and was familiar with the investigative methods employed by the local police, but contended that it was inappropriate for the judge to introduce his personal knowledge into the adjudication of the case. The Court observed that it was not necessary in the present matter to examine the extent to which a judge or magistrate may rely upon personal experience when assessing evidence or evaluating the conduct of an individual.

The Court recognized that exceptional circumstances may occasionally require a judicial officer to draw on experience to determine ordinary or typical conduct in societal affairs. Nevertheless, even allowing for the judge’s considerable experience in criminal trials, the Court found his sweeping assertion—“there was not a single lawless group in the whole country whose record of crime came anywhere near the record of that organised unit which is known as the Indian Police Force”—to be wholly unwarranted and indicative of a lack of judicial restraint. The judgment noted that the judge offered no material on which this observation was based, nor did he indicate that his trial experience enabled a comparison between the crime records of various unlawful groups in the State and those of the Police Force. The Court considered that labeling the entire State Police Force as a lawless group was already detrimental, and further claiming that its crime record was the highest in the State compounded the injury, especially coming from a High Court judge, thereby risking disrepute to the entire law‑and‑order administration. The Court emphasized that such sweeping generalisations require a solid factual foundation and must be necessary for the case, criteria it could not locate here. Consequently, the Court concluded that the State Government was rightfully aggrieved by the broad remark, and it noted a similarly excessive comment that described “every fish in the police force” as stinking.

In this case, the Court observed that the expression “barring, perhaps, a few” implied that even with respect to the few individuals who might have been excluded, the learned judge expressed some doubt about their inclusion. The Court therefore concluded that such sweeping generalisations defeat the very purpose for which they are normally made and that they were unnecessary for the disposal of the criminal proceedings against Mohammad Naim. The Court explained that it would have been sufficient for the learned judge simply to state that when a large number of police officers resort to an objectionable method of investigation, it is not necessary to single out a petty officer and prosecute him for conduct that many others have also performed with similar impugnity. In addition, the Court held that it was wholly unnecessary for the learned judge to condemn the entire police force and to assert that its record of crime was the highest in the country. The Court reasoned that a remark of that nature, instead of furthering the purpose of reforming the police force which the learned judge claimed to have in mind, is likely to undermine the overall efficiency and morale of the police service. The Court further noted that, in his zeal and solicitude for police reform, the learned judge allowed himself to make these very unfortunate observations, and that such observations in fact defeated the very purpose he intended to achieve. While making this assessment, the Court added, to avoid any possible misunderstanding, that the conduct of Mohammad Naim and of officers who behave in a similar manner deserves the severest condemnation, and that the learned judge correctly observed that such conduct requires very serious notice from the superior officers of the police. The Court reflected that unless an example is made of such officers by imposing the most stringent action against them, improvement in police administration is unlikely to occur. For the reasons set out above, the Court reached a conclusion that justice demands, namely that the present matter falls within the category of exceptional cases in which the inherent jurisdiction of the court should have been exercised and that the earlier remarks identified as (a), (b) and (c) must be removed from the judgment. Accordingly, the Court allowed the appeal and directed that the aforesaid remarks be expunged from the order dated August 4, 1961. The appeal was therefore allowed.