CHHANGANI, J. - (1.) THIS is an application under sec. 561-A by Sualal, a Sub Inspector Police, in the service of this State, praying for the expunction of certain remarks against him, appearing in the judgment of the Sessions Judge, Bhilwara, dated 9th August 1962, disposing of Sessions Case No. 6/1962.
(2.) THE petitioner was Station House Officer, Police Station, Badnore in July, 1961. On 26th July, 1961 an application was submitted on behalf of the Police Station, Badnore, in the Court of Divisional Magistrate, Gulabpura, for taking action under Sections 109 and 55, Criminal Procedure Code, against five persons including one girl Mst. Gita. In the proceedings that ensued on that application, Mst. Gita filed written statement wherein she stated that she was a girl of good character and was a minor of 14 years. While denying the allegations made against her, she stated that she had been kidnapped by Jagannath and Antra and had been kept in wrongful custody for quite a long period. She further stated that Amra also committed rape upon her. She sent information to her mother whereupon the villagers got her arrested along with other accused through the police and although she made allegations against other persons, the police took no action to prosecute those persons under see. 363, 366 and 344, Indian Penal Code. THE Sub Divisional Magistrate, Gulabpura felt satisfied with the case put forward by Mst. Gita and dropped the proceedings under sec. 109 and 55, Criminal Procedure Code, against her. He further sent her written statement to the Circle Inspector Police for necessary action. A case under Secs. 363, 366 and 344, Indian Penal Code was registered by the police and eventually the five persons were prosecuted for having kidnapped Mst. Gita. THE Sessions Judge, Bhilwara, who tried the case, convicted three persons and in para 15 of his judgment made certain observations with regard to the conduct of the petitioner. THEse observations read as follows : - ¦ "before parting with the case, I think I would be failing in my duty if the curious part depicting the sheer mockery of law played by the S. H. O. Badnore is not discussed. It is the case of both the parties that Kalbelias and the girl Mt. Gita were taken to the police station, Badnore. According to the statement of this girl she related her woeful tale to the S. H. O. Badnore and all what had happened to her and it is further in her statement that she was kept in police station for three days, and thereafter produced before the S. D. M. Gulabpura and for what : To face a charge for proceedings under Sec. 55/109 Cr. P. C. against herself. Gita was then a girl of about 14 years of age. She had already suffered a lot at the cruel hands of the accused persons and what could have been the data against the girl of about 14 years of age to be proceeded against under Sec. 55/109 Criminal P. C. What reckless disregard of duty, what colossal ignorance of knowledge of law and what perverse sense of justice must have been in the mind of that S. H. O. He did not register the case for offences under sec. 366 and 376 etc. , against the accused persons. He did not giveany consolation to the poor girl, who deserved the utmost sympathy one could show. He did not allow the mother and the girl to meet and instead filed a complaint against the innocent and troubled girl under sec. 55/109 Cr. P. C. Is it not all shocking ? One fails to understand why he did not stand to the occasion and tried to bring laurels to his department by bringing the accused persons to book. But for reasons not conceivable, he acted in a most shameful and understandable manner and tried to lower the prestige of the department to which he belongs ? To say the least, he is not at all fit to hold any responsible post, much less the post of a S. H. O. in the department, the duty of which is to maintain law and order. But for the action on the part of the learned S. D. M. Gulabpura, Shri Chatersingh P. . 1, the case perhaps would not have seen the light of the day and the accused of such a heinous crime would have gone unpunished and the poor girl Mst. Gita would have been shut again (who knows for how many more years to come) from the rest of the world and would not have been able to see her mother and the other relations. " A copy of the said judgment was also forwarded to the Inspector General of Police, Rajasthan, Jaipur. THE petitioner has felt seriously aggrieved by these observations made with regard to his conduct and has consequently approached this Court for their expunction. Mr. Soral, appearing on behalf of the petitioner, has contended that the petitioner was not a party to the investigation which resulted in the prosecution of Amarnath and others and that his conduct, as such, could not have come directly for scrutiny by the Sessions Judge, It is further pointed out that the petitioner had no opportunity to explain his conduct. The petition contains statement of facts which are contrary to the facts found by the Sessions Judge and the learned counsel submitted that the Sessions Judge should have given a fair opportunity to the petitioner before arriving at conclusions of fact and condemning the petitioner. He relied upon Benarsi Das Vs. Crown (1), Emperor Vs. Juman Sajan (2), Muhammad Fazal Shah vs. Muhammad Ashgar (3), B. S. Dewan vs. Sate of Andhra Pradesh (4) and State vs. Chotey Lal (15 ). The learned Assistant Government Advocate has found it difficult to support the judgment of the Sessions Judge, Bhilwara in this behalf. The High Courts had occasions to consider the question regarding the limits within which Judges and Magistrates should make observations regarding the conduct of parties and witnesses relevant for the proper disposal of the cases before them. The principles deducible from the cases cited at the Bar may be briefly stated as follows : - (1) In the interests of maintaining the independence of the Judiciary, Judges and Magistrates should be at full liberty to discuss the conduct of the persons before them, either as parties or as witnesses, and the High Court should be very jealous in guarding the independence of the Magistrates and Judges subordinate to it, and should encourage them to feel that they can fearlessly give expression of their opinions in the judgments which they deliver (See Lalit Kumar vs. S. S. Bose (9 ). (2) The courts should, however, observe and not violate the following three principles while expressing opinions on the conduct of parties and witnesses - (a) No person should be condemned without being heard ; (b) In making his criticism the Magistrate or Judge should not travel beyond the record. (c) The criticism should be made with sobriety and due sense of responsibility. (see State vs. Chhotey Lal (5 ). In B. S. Dewan vs. State of Andhra Pradesh (4), the above principles were quoted with approval and it was further added that caution and care should attend the observations of the Judges and Magistrate while passing remarks on the witnesses or parties or other persons has been the trend of decisions of all the High Courts. The learned Judge further quoted the following observations from Muho-mmod Fazal Shah vs. Muhammad Ashgar (3) : - "disparaging remarks in a judgment, whether they amount to a verdict or not, imputing crime, moral delinquency or improper conduct of a person are a constant source of uneasiness and irritation to him. They lower him in the public estimation and haunt him like a spectre for life invariably visiting him whenever he enters the precincts of a court of justice as a witness or a party. Being fraught with such serious consequences they should only be made where any hesitation or reluctance in making them would impede the ends of justice. . . . . . unless Judges had the power to make bold and fearless comments on the evidence before them they would not be able effectively to discharge their functions. These two conflicting considerations must always be present to the mind of a Judge whenever he is called upon to criticise the character and conduct of a person. On the one hand, he should weigh the gravity of the damage that his remarks would cause to the person concerned and on the other he must realise that he owes a duty to the parties, the public and the appellate court of stating in full his reasons for the view he takes of the evidence. It is against a rule, as ancient as the law itself and based on common sense and fair play, that when a Judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to he Based must he put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the Judge's suspicion about his conduct. A Judge who condemns a man unheard acts as unfairly as if he were to convict a man without hearing him in his defence. " With great respect, I agree with the observations made in the cases referred to above and act upon the principles enunciated in them. In the present case, there can be no doubt that the Sessions Judge had no justification in censoring the conduct of the petitioner, when he was neither a party to the investigation nor he had an opportunity to explain his conduct. It appears that the Sessions Judge was moved by the statement of girl and felt suspicious about the conduct of the petitioner. Suspicion would have been an ample ground for the Sessions Judge to have invited the attention of the Inspector General of Police, Rajasthan, Jaipur, and to advise departmental enquiry, but could not have been safe foundation for pronouncing finally upon the conduct of the petitioner. In these circumstances, in all fairness to the petitioner, the observations cannot be maintained. I, therefore, accept this revision application and order that the observations of the Sessions Judge, as quoted above, shall be expunged from his judgment. . ;