YAMIN, J. - (1.) THIS is a petition u/s. 482 Cr. P. C. by petitioner Shiv Narayan Singh who appeared as a witness in Sessions Case No. 7/2000 State vs. Dayaram u/s. 302 IPC but did not depose in favour of the prosecution, therefore, the learned Sessions Judge while acquitting the accused, vide order dated 16. 6. 2000, passed certain remarks against the witness. The petitioner wants those remarks to be expunged.
(2.) I have heard the learned counsel for the petitioner as well as learned Public Prosecutor for the State. The first information report was lodged by one Pyare Lal, Head Constable No. 316 of Police Station Karauli on 15. 10. 1991. Pyare Lal along with Shiv Narayan was on VIP duty and when they reached near the Municipal Board Office, Karauli at about 7. 30 P. M. they found that Shripat along with 6 or 7 persons were armed with hockies, farsa, Dharia and a 12 bore gun. They attacked on Bal Kishan, Head Constable. Pyare Lal and Shiv Narayan Singh intervened and suffered injuries. The person who was having gun fired which missed. Then the person who was having gun inflicted injury by butt with the result that the butt broke down. It was further alleged that Bal Kishan was attacked by farsa and Dharia and injuries were inflicted on his head and both the arms. Bal Kishan became unconscious and fell down on the road and even then the persons went on giving beatings to him. Then they left Bal Kishan and ran away. It was further stated that the number of persons had collected. The head constable Pyare Lal left leaving Shiv Narayan at the spot and then informed at police station on telephone. Thereafter, Bhagwati Prasad, Chhotelal and other police constables came to the spot and Bal Kishan was taken to hospital. It was mentioned that the persons except Shripat could be identified only after they were produced. The police registered a case under the various sections. After some time, deceased Bal Kishan died and his post mortem was performed. After investigation, only Dayaram was put to trial for offence u/s. 302/149 IPC. It appears that the challan was submitted against Shripat, Badri, Rambabu, Meghraj and Dayaram in their absence u/s. 299 Cr. P. C. It was only Dayaram who could face trial u/s. 147, 148, 149, 333, 353, 307 & 302 IPC and the case was committed to the learned Sessions Judge. The learned Sessions Judge tried Dayaram for various offences including offence u/s. 302/149 IPC Shiv Narayan appeared as PW. 7 before the learned Sessions Judge and stated that Shripat Meena was accompanied by 6 or 7 persons who were armed with gun, farsa, Gandasi and they attacked on Bal Kishan on the crossing of Municipal Board. He further stated that the darkness had over shadowed. He did not know anybody else except Shripat. In the cross-examination, he stated that it was all darkness at the time of occurrence. However, the learned Sessions Judge acquitted Dayaram holding that the prosecution was not able to prove that it was Dayaram who murdered head constable Bal Kishan. He examined the statement of Shiv Narayan -petitioner and stated that Shiv Narayan did not speak of the presence of any body else except Shripat. The statements of other witnesses were also almost similar, therefore, Dayaram was acquitted but before parting with the case, the learned Sessions Judge passed remarks against the petitioner in para No. 11 that though the witness had named the accused Dayaram in his statement u/s. 161 Cr. P. C. but did not make any statement against Dayaram. He was of the view that Bal Kishan was murdered in the main Bazar but even then the police officials who were his collegues were not stating anything against the accused persons. He further stated that the circumstances speak volumes against the petitioner and consequently, he cannot be regarded as a good police man. He forwarded a copy of the judgment to the Superintendent of Police, Karauli. Learned counsel for the petitioner submitted that the remarks made by the learned Sessions Judge are being used by his department to take action against him. She submitted that the witness was not given any opportunity to be heard and remarks are fatal. She submitted that the witness was not declared hostile by the prosecution and the witness was not confronted with his statement recorded u/s. 161 Cr. P. C. Hence according to her the remarks were unwarranted. I find from the record that this is correct. Therefore, when the attention of the witness was not drawn to his previous statement u/s. 161 Cr. P. C. the purpose of which is only to contradict, I think that the learned Sessions Judge should not have passed remarks against the petitioner. Admittedly, the statement u/s. 161 Cr. P. C. could not be used for any other purpose except for contradiction as the law stands. Learned Public Prosecutor is not able to satisfy me as to how the learned Public Prosecutor who was conducting the case before the learned Sessions Judge did not care to confront the witness with the statement recorded u/s. 161 Cr. P. C. which allegedly mentions the names of Certain other persons except Shripat. Even otherwise information report mentions only the name of Shripat and not of any other accused. No test identification of even Daya Ram was conducted during investigation. Therefore, the remarks should not have been passed against the petitioner. Learned counsel for the petitioner cited Manish Dixit & Ors. vs. State of Rajasthan (1) in which certain remarks were passed against a witness who was Tehsildar and who had not conducted the test identification parade properly. It was held that the Supreme Court has repeatedly cautioned that before any castigating remarks are made by the Court against any person, particularly when such remarks could ensue serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. If such an opportunity is not given, then the remarks would be in violation of the principles of natural justice.
(3.) IN view of this clear law on the subject, the learned Sessions Judge should have restrained himself in passing remarks against the petitioner without giving him any opportunity of being heard much so, when the attention of the witness was not drawn during the trial to his statement u/s. 161 Cr. P. C. and no test identification of Daya Ram was conducted. Consequently, this petition u/s. 482 Cr. P. C. is allowed and it is ordered that the remarks passed against the witness in the judgment of learned Sessions Judge, Karauli dated 16. 6. 2000 stand expunged. .;