Decided on January 15,1979



- (1.) THIS Misc. Criminal Application is preferred by a person who was cited as a witness in a criminal case but who was later dropped and against whom some observations are made by the learned Assistant Sessions Judge, Kutch-Bhuj in Sessions Case No. 34/77, wherein eight accused persons who stood their trial for the offences under Sections 307, 504, 506, 447 read with Sections 143, 147, 148 and 149 of the I. P. C. were acquitted of the said offences.
(2.) AGGRIEVED by the remarks made in the judgment against him, the petitioner-witness has preferred this Criminal Misc. Application under Section 482 of the Cr. P. C. (the Code) for expunging the said remarks.
(3.) THE remarks appear at page 12 para 19 of the judgment and they are in the following terms: (The remarks in Gujarati omitted for want of facilities for printing Gujarati.-Ed. ). As submitted by Mr. S. M. Shah, the learned Advocate appearing for the petitioner, the learned Judge has recorded a positive finding against the petitioner in these observations to the effect that in concocting the facts during the intervening period of four days between the incident and the filing of the complaint and filing a complaint based on the said facts, the complainant received assistance from an expert and well versed Swarupchand Vakil i. e. the petitioner. As pointed out by Mr. Shah, the petitioner has made it clear in his petition that he is not a practising lawyer or Vakil, but he is a mere bond writer and, as observed by the learned Judge himself, the complainant admitted in his cross-examination that on the second time he did not see Swarupchand Vakil before going to Chitrod and then to Bhimasar Police Station. Swarupchand, though cited as a witness, was dropped by the prosecution and has not been examined, It was, therefore, Improper on the part of the learned Judge to make the said remarks which cast a serious slur on the conduct of the petitioner in recording that he had actually associated himself with the complainant in fabricating facts and basing the complaint on such facts. In my opinion, the learned Assistant Sessions Judge, Kutch at Bhuj should have refrained from making any such remarks against a party who was absent and who, though cited as a witness, was not examined before the learned Judge. The criterion in such cases is as to whether the learned Judge in making the remarks acted with impropriety and unless the Court is satisfied that such was the case, the extraordinary power to expunge remarks should not be exercised which power can be exercised only when a clear case is made out, (Vide State of Assam v. Ranga Muhammad. There cannot be any doubt that the learned Judge acted with impropriety in casting aspersions on the conduct of the petitioner to the effect that he assisted the complainant in fabricating facts on which the complaint was based.;

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