Sanjeev Sirohi
Published on: 02 March 2023 at 1947 IST
While taking a very strong, simple, straightforward, sensible and significant stand, the Delhi High Court has in a most laudable, learned, logical, landmark and latest judgment titled Sanjay Kumar Sain vs State of NCT of Delhi in W.P.(Crl) 76/2023 that was reserved on January 11, 2023 and then finally pronounced on March 1, 2023 has minced just no words absolutely to state quite upfront that Judges must exercise more control and caution while passing strictures against the investigating authorities and the police officers on their professional capabilities since it may impair a person’s confidence and have a negative impact on work and reputation.
It thus certainly merits just no reiteration that what the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma has pointed out must always be most strictly followed in letter and spirit.
Of course, the Bench had rightly pointed out that, “Social memories tend to stigmatize the recipient, though the person passing strictures will enjoy judicial immunity due to his adjudicatory freedom of expression.”
The Bench also had very rightly reminded that it is not to be forgotten by courts that though the remedy of expunging strictures is available to the recipient, but many times, the strictures live not only in public memory but also in the memory of the recipient himself. Very rightly so!
At the very outset, this brief, brilliant, bold and balanced judgment authored by the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma sets the ball in motion by first and foremost putting forth in para 1 that, “By way of present Writ Petition under Article 226 of the Constitution of India read with Section 482 of Code of Criminal Procedure, 1973 (“Cr.P.C.”), the petitioner, who is currently posted as Deputy Commissioner of Police, North East Delhi, seeks quashing and setting aside of orders dated 13.10.2022, 24.11.2022 and 07.12.2022, passed by learned Additional Sessions Judge, North East, Karkardooma Courts, Delhi, in Sessions Case No. 298/2019 titled “State Vs. Sunil @ Kallu & Ors.”, to the extent of observations and remarks made against the petitioner herein and also to recall and cancel the Bailable Warrants issued against the petitioner vide order dated 07.12.2022.”
To put things in perspective, the Bench then envisages in para 2 observing that, “The facts and circumstances, leading to the filing of present petition, are that an FIR bearing no. 246/2019 was registered under Sections 22/29 of NDPS Act, 1985, at Police Station Khajuri Khas, wherein 5 accused persons were arrested,”.
“Chargesheet under Section 173(2) of Cr.P.C. was filed on 14.08.2019, and a supplementary report was filed on 30.10.2019 to bring on record the FSL report, which confirmed the seized contraband to be ‘Tramadol’. By way of another supplementary chargesheet filed on 15.09.2021, the FSL report with respect to mobile phones and SIM cards of accused persons was placed on record. During the investigation, it was felt necessary by the Investigating Agency to take voice samples of the two accused persons namely Ankit Kumar and Rupesh Kumar Gupta,”.
“Thereafter, third supplementary chargesheet dated 15.01.2022 was filed before the learned Trial Court whereby detailed report of contraband seized in the present case was placed before the learned Trial Court, and the Court was also informed that voice samples of accused would be taken on 25.01.2022. Voice samples of the accused persons were then sent to FSL, Rohini on 20.05.2022 for examination. The learned Trial Court, on 26.07.2022, directed the petitioner herein, for the first time, to make efforts to obtain the FSL Report of voice samples,”.
“On 29.07.2022, the petitioner in compliance of the said order of the learned Trial Court issued a letter, apprising the Director, FSL, Rohini, regarding order passed by the Court and requested the Director concerned to prepare the report on priority basis. On 04.10.2022, a status report was filed and these facts were placed before the learned Trial Court.”
In hindsight, the Bench then recalls in para 3 that, “On 13.10.2022, vide the first order impugned before this Court, the learned Trial Court made certain remarks against the petitioner as well as the IO, SHO and ACP concerned by using terms “negligent” and “insensitive”. The relevant portion of order dated 13.10.2022 is reproduced as under:
“The matter is fixed for consideration on charge and also for filing of the report of FSL regarding voice sample of accused Ankit and Rupesh, which is still pending, so, the DCP, North-East was directed to make sincere efforts to obtain the report of FLS. Copy of the last order was sent to the DCP, North East for compliance,”.
“The DCP has written a letter stating therein that DO letter was written on dated 29.07.2022, but, as this case was registered way back in the year 2019, it appears to this court that the IO/SHO/ACP/DCP are negligent persons, as, they are not making sincere efforts for obtaining the report of the FSL expeditiously. Since, accused Sunil @ Kallu and Vicky @ Harminder are in judicial custody and these police officials are insensitive enough…” (Emphasis supplied).”
Needless to say, the Bench states in para 8 that, “The petitioner, aggrieved by the aforesaid, seeks indulgence of this Court for setting aside the impugned orders to the extent of remarks passed and the Bailable Warrants issued against him.”
Most significantly, we see that the Bench then minces absolutely no words to mandate succinctly in para 25 that, “Although the Courts must ensure that trials are conducted swiftly, fairly, and impartially, they must take into account the ground realities and position of law,”.
“Whenever the judicial officers are inclined to use harsh language against the investigating authorities and police officers on their professional capabilities and devotion towards their duty, more control and caution must be exercised, since passing such comments may impair a person’s confidence, in addition to having a negative impact on his work and reputation,”.
“The loss of reputation suffered by an officer may not get restored even if the remarks are expunged by a higher court. Therefore, a thin wall that exists between the adjudicatory liberty to point out the flaws in an investigation or on part of authorities and the obligation to exhibit judicial restraint must be kept in mind and perspective.”
Equally significantly, the Bench then hastens to add in para 26 mandating that, “Judicial utterances in the form of strictures are disapproval and dissent in certain cases. At times, the strictures stigmatize the concerned person without conviction. A recipient of stricture will have no option other than to seek expunction of stricture by way of either a judicial review or under the writ jurisdiction. Though no restriction can be imposed upon judicial functioning except guidelines on judicial strictures and judicial precedents, since doing so will be against the independence of judiciary, however, a recipient of judicial stricture also cannot remain devoid of any remedies of redressal. It is the self regulation amongst the judges that maintains the institutional integrity of the judiciary,”.
“Undoubtedly, judicial utterances on many occasions have the power to meaningfully bring about social and procedural changes for the welfare and betterment of the system. The judicial officers, however, have to note the difference between judicial findings and passing of strictures,”.
“While there can be no doubt about the importance of judicial free speech, it being the hallmark of a free and fair judiciar, judicial self-restraint is an obligation that judiciary recognizes as created by and for themselves,”.
“The strictures have been passed against an officer, as in the present case a police officer who has been visited with judicial displeasure for want of carrying out burden of good governance of justice by ensuring speedy trial to the accused persons in judicial custody,”.
“The judicial officer had to remain conscious of the fact that passion for the same solely should not have guided him to pass such strictures to express judicial discontent more so since the delay in filing FSL was beyond his control.”
Adding more to it, the Bench then expounds in para 27 stating that, “This Court is also of the view that in this case, the strictures may be negligent but are not mala fide in nature. It is not to be forgotten by courts that though the remedy of expunction of strictures is available to recipient of strictures, many a times, the strictures live on not only in public memory but also the memory of the recipient itself,”.
“Social memories tend to stigmatize the recipient, though the person passing strictures will enjoy judicial immunity due to his adjudicatory freedom of expression. In the present case, the learned Trial Court displeased due to delay in trial, had passed the orders impugned before this Court without realizing that the cause behind the delay was not the recipient of the strictures herein but the reasons beyond his control.”
To be sure, the Bench then points out in para 28 that, “The Indian judiciary has always followed the self-imposed judicial civility codes and have, through the judgments of Hon’ble Apex Court as well as High Courts, flagged the issue of unwarranted judicial strictures which stigmatize and at times even penalize the recipient of strictures.”
Most sagaciously, the Bench then propounds in para 29 that, “This Court should not be held to be trying to bring down the majesty and power of the Court, as also observed by this Court in the case of Ajit Kumar v. State (NCT) of Delhi (supra),”.
“This Court remains conscious of the fact that the judicial words, utterances, decisions help, ensure a society which follows rule of law. However, at times, unwarranted judicial utterances can wound and at times adversely affect or destroy the career and confidence of the recipient of strictures.”
Most forthrightly, the Bench then aptly underscores in para 30 stating that, “It is also made clear that by way of this Judgment, this Court is not holding or laying down, as earlier expressed in case of Ajit Kumar v. State (NCT) of Delhi (supra), that the courts are powerless to point out disobedience of orders passed by the courts, but the judicial utterances or orders passed regarding the conduct of police officers have to be in consonance with the misconduct, if any, after carefully analyzing that such misconduct is, solely and without any doubt, attributable to them. Nevertheless, Section 6 of Chapter 1, Part H (‘The Judgment’) of the Delhi High Court Rules for “Practice in the Trial of Criminal Cases” provides guidance to the Trial Courts as to what can be the appropriate procedure in cases where a Court is dissatisfied with the manner in which investigation has been done by concerned authorities and agencies,”.
“If the circumstances so warrant, the Courts can also take recourse to the Delhi Police Act and relevant provisions under appropriate laws and can issue notice and initiate appropriate action. The Courts are not powerless to indicate any lapse or omission on part of investigating agencies, or any disobedience of the directions of the Court,”.
“The courts have to take recourse to the judicial precedents and the High Court Rules instead of taking into their own hands the duty of conducting enquiries, etc., and have to leave the same to the parent department and disciplinary authority of the police officers concerned.”
What’s more, the Bench holds in para 31 that, “As also earlier directed in Ajit Kumar v. State (NCT of Delhi) (supra), this Court once again, by way of abundant caution, directs all the learned Judicial Officers to exercise utmost restraint and judicial discipline while deciding the cases before them and refrain from judging the credibility of police officers and passing scathing and disparaging remarks against them, when the same are not required for the adjudication of matters before them.”
As a corollary, the Bench then very rightly directs in para 32 that, “In view of the aforesaid discussion, the remarks passed against the petitioner herein, as reproduced in para no. 3 and 5 of this judgment are hereby expunged/deleted from the impugned orders dated 13.10.2022 and 24.11.2022, and the Bailable Warrants issued against him vide impugned order dated 07.12.2022, as reproduced in para no. 7 of this judgment are hereby cancelled/set aside.”
Finally, the Bench concludes by holding in para 34 that, “Learned Registrar General of this Court is directed to forward a copy of this judgment to all the District and Sessions Judges of Delhi who shall ensure the circulation of this judgment among all the Judicial Officers in their Courts for sensitization of Judicial Officers on this issue,”.
“A copy be also forwarded to Director (Academics), Delhi Judicial Academy for taking note of its contents.”
In a nutshell, we can thus see that the Single Judge Bench comprising of Hon’ble Ms Justice Swarana Kanta Sharma has made it indubitably clear that Judges must exercise control and caution while passing strictures against investigating authorities.
So it is the bounden duty of all the judicial officers to strictly abide by what the Bench has laid down so very ostensibly in this leading case as discussed hereinabove. No denying it!
Sanjeev Sirohi, Advocate