Decided on May 10,1950

Madhusudan Mahapatra Appellant
STATE Respondents


NARASIMHAM, J. - (1.) THIS is a petition under Schedule 39 read with Schedule 61A, Criminal P. C., for expunging certain remarks made against the character of the petitioner by Sri P. N. Sarkar, Magistrate, 1st Class, Berhampur in his judgment in G. R. No. 10 of 1947.
(2.) THE petitioner is a resident of village Pitala P. S. Aska in Ganjam district. He is also a member of the Orissa Legislative Assembly and belongs to the Congress Party. On 8 -12 -46 one Chori Santra of village Raisinghpur which is very close to village Pitala lodged a station diary entry at Aska Police Station at about 10 A. M. to the effect that one Sibarama Patnaik, the Karanam of village, had been assaulted and wrongfully confined by several persons of Pita'a village led by Harihar Panda. The police did not take any immediate action thinking that it was a non -cognisable offence. Sub -sequently, however, a petition was sent to the Superintendent of Police on the basis of which the S. I. of Aska instituted a regular F. I. R. on 26 -1 -47 and after due investigation submitted charge -sheet against Harihar Panda. Biswanath Panda and six other persons who were all tried for offences under Sections 147, 342/149 and 356, Penal Code in the Court of Sri P. N. Sarkar Magistrate, 1st Class, Berhampur. In that case the petitioner figured as one of the eye -witnesses (P. W. 5). Chori Santra (P. W. 1) and Sibaram Patnaik (P. W. 2) also deposed in support of the prosecution case. The substance of the allegations made against the accused persons in that case was that the said Sibaram Patnaik (P. W. 2) wrote a love -letter to a female inmate of the house of accused Harihar Panda which, however, fell into the hands of the accused persons. Thereupon, they were so much enraged against Sibaram Patnaik that they collected in a mob and wanted to kill him, He hid himself in the village Pathaghar for some time but sub. sequently on the assurance given by the petitioner he came out. The accused persons thereupon tied his hinds, put an earthen pot on his head and led him in a procession in a humiliating way throughout the village. In the end, however, the petitioner succeeded in persuading Harihar Panda and his men to release Sibaram Patnaik. The learned Magistrate while acquitting the accused persons observed that the prosecution case appeared to be an exaggerated and inflated account of some alteration or misunderstanding between Sibaram Patnaik (P. W. 2) and the accused's party. Ha further observed: 'P. W. 2 having done a wrong and indecent act which brought general denunciation from the public must have taken the help of the enemies of the accused in saving his face some how.' He pointed out that all the eye -witnesses were interested persons inimically disposed towards the accused persons and held that the charges were not brought home against them. While discussing the evidence of P. W. 5 (the petitioners) who claimed to be an eye -witness to the occurrence, the learned Magistrate made the following comments: 'Besides the aforesaid facts this witness has made a number of admissions which go to show that the witness has evinced extraordinary interest in the case from its inception and during trial. He has often misused his position as a public man in trying to influence the police and officers in getting a verdict against the accused persons.' The passage underlined (here italicised) has been taken exception to and I have been asked to expunge those remarks on the ground that they were not justified from the evidence on record. The learned Magistrate was called upon to show cause why these remark3 should not be expunged and he has submitted an explanation pointing out extracts from the evidence from which he thought that those remarks were justified.
(3.) THE first question for consideration is whether the High Court has power under Schedule 61A, Criminal P. C., to expunge these remarks when no appeal or revision has been filed in the High Court against the order of acquittal passed by the trying Magistrate. In P. J. Rogers v. Shrinivas Gopal, A. I. R. (27) 1940 Bom, 266 : (41 Or. L. J. 855), Beaumont C. J. (as he then was) took the view that the High Court has no jurisdiction to expunge passages from the judgment of an inferior Court which has not been brought before it in regular appeal or revision. This decision has been followed in a later Single Bench decision of the Patna High Court reported in Bhutnath Khawas v. Dasrathi Das, A. I. R. (28) 1941 Pat. 544: (42 Cr. L. J. 546). On the other hand, several other High Courts have held that whatever might have been the law prior to 1923 the effect of the insertion of Schedule 61A, Criminal P. C. by the amendment of 1923 was to make it clear beyond any doubt that the Inherent powers of the Court can be invoked for expunging objectionable remarks from a judgment when they are not justified from the evidence on record, Panchanan v. Upendra Nath, A. I. R. (14) 1927 ALL. 193 : (27 Or. L. J. 1407); Emperor v. Atta Ullah Shah, A. I. . (23) 1936 Lah. 429 : (37 Cr. L. J. 661); Lachhman Das v. Jai Gopal, 40 Cr. L. J. 214 : (A. I. R. (25) 1938 Lah. 793); Ghumanmal v. Emperor, a, I. R. (31) 1944 Sind 133: (46 Cr. l. J. 85); In re Public Prosecutor, A. I. R. (31) 1944 Mad. 320 : (45 Cr. L. J. 763) and Mohd. Fazal Shah v. Muhammad Asghar, 51 Or. L J. 500 : (A. I. R. (37) 1950 Lah. 66). The law on the subject has been fully disoussed in those decisions and with respect I am inclined to follow the reasonings given therein. As pointed out in Ghumanmal v. Emperor, A. I. R. (31) 1944 Sind 133 : (46 Or. L. J. 88). 'One of the inherent powers of the highest Court of a Province is to prevent grave injustice and injury being caused to a person, who, though not a party, has as a witness been called before the Court upon a summons which he cannot disobey and who has nevertheless been made the subject of defamatory remarks by a Magistrate or Judge, which remarks can in no way be justified from the record and the making of which, therefore, must involve the abuse of the judicial office. To expunge any such passage at the instance of a person aggrieved is 'otherwise to secure the ends of justice' within the meaning of Schedule 61A, Criminal P. C. Once it is considered that the High Court has this power, it must be conceded that it has the necessary ancillary power to call for the record so that its inherent power may be exercised.' ;

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