http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 17  

PETITIONER: DR. RAGHUBIR SHARAN

       Vs.

RESPONDENT: THE STATE OF BIHAR

DATE OF JUDGMENT: 14/03/1963

BENCH: SUBBARAO, K. BENCH: SUBBARAO, K. DAYAL, RAGHUBAR MUDHOLKAR, J.R.

CITATION:  1964 AIR    1            1964 SCR  (2) 336

ACT: Criminal  Trial--Revision  application  to  High  Court  for expunging  remarks  from judgment of Lower  Court-Extent  of inherent  power  of  High  Court-Jurisdiction  when  to   be excercised  Code of Criminal Procedure (Act V of  1898),  s. 561 A.

HEADNOTE: In  a  criminal  case  pending in  the  court  of  a  Munsif Magistrate, two accused persons moved a bail application  on the  ground  of  serious illness in  jail.   The  Magistrate called  upon  the appellant, who was at that  time  a  Civil Assistant  Surgeon and also Superintendent of the  Sub-jail, to  submit a medical report.  On the report, the  Magistrate released  the  accused  persons on  bail  but  made  certain observations  against the appellant as a doctor,  which  are sought to be expunged.  Against the said order, the  medical officer  filed a revision petition in the High  Court  which was  dismissed.  On appeal by special leave the  appellant’s main contention was that the High Court should have expunged the  remarks  which  would  affect  the  appellant’s  future official  career.  The question for decision in  this  court was  whether in a case where the judgment has become  final, that  is to say, when no appeal has been  preferred  against the  judgment  by  an aggrieved party, the  High  Court  can expunge any remarks found therein at the instance of a third party. Held,  (per Mudholkar and Dayal JJ.), that every High  Court as the Highest Court exercising criminal jurisdiction in a  337 state  has inherent power to make any order for the  purpose of  securing  the ends of justice.  This  power  extends  to "punction or ordering expunction of irrelevant passages from a  judgment  or order of a Subordinate Court  and  would  be exercised  by it in appropriate cases for securing the  ends of justice.  Being an extraordinary power it will,  however, not be pressed in aid except for remedying a flagrant  abuse by  a  subordinate court of its powers such  as  by  passing comment upon a matter not relevant to the controversy before it  and  which  is  unwarranted or  is  likely  to  harm  or prejudice another.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 17  

The  remarks  in  the  present  case  were  not  of  such  a character,   so  as  to  call  for  the  exercise   of   the extraordinary  power of the High Court under s. 561  A.  The appeal, therefore, must fail. The  State  of U. P. v. J. N. Bagga, Crl.  A.  No.  122/1959 decided on Jan. 16, 1961, In the matter of H. Daly (1927) 1. L.  R.  9  Lahore 269, Panchanan Banerji  v.  Upendra  Nath, (1926)  I.  L.  R. 49 All. 254; Rogers  v.  Shrinivas  Gopal Kewale,  I. L. R. (1940) Bom. 415, Emperor v. O. Dunn,  922) 44 All. 401, Emperor v. Sidaramaya, (1917) 19 Bom.  L R. 912 and  State v. Nilkanth Shripad Bhave, 1. L. R.  (1954)  Bom. 148, referred to. Per  Subba  Rao  J.  In  the  present  case  the   following principles  emerge : (1) A judgment of a criminal  court  is final;  it can be set aside or modified only in  the  manner prescribed by law.. (2) Everyjudge, whatever may be his rank in the hierarchy, must have an unrestricted right to express his  views in any matter before him without fear or  favour. (3)  There is a corelative and self imposed duty in a  judge not  to make irrelevant remarks or observations without  any foundation,  specially in the case of witnesses  or  parties not before him, affecting their character or reputation. (4) An  appellate court has jurisdiction to  judicially  correct such  remarks, but it will do so only in  exceptional  cases where such remarks would cause irrevocable harm to a witness or a party not before it. Emperor  v. Nazir Ahmad, A. I. R. 1945 P. C. 18, Jairan  Das v.  Emperor, (1945) 47 Bom.  L. R. 634 (P.   C.),  Panchanan Banerji v. Upendranath Bhattacharji, (1926) 1. L. R. 49 All. 254.   In the matter of Daly, (1927) I. L. R. 9  Lahore  269 Rogers  P.  J. v. Shrinivas Gopat 1. L. R.  1940  Bom.  415, Bhutnath Khanwas v. Dasrathi Das, A. I. R. 1941 Pat. 544, In re Public Prosecutor, A. 1. P. 1944 Mad. 614, referred to. State  v.  Nilkanth Shripad, 1. L. R. 1954  Bom.  148,  held applicable. 338 Held further, that a judicial officer does not surrender his judgment in medical matters to the ipsi dixit of the doctor. In  this case the observation of the Magistrate was  neither irrelevant  nor without foundation and the  appellate  court was  right  in not treating it as an  exceptional  case  and judicially  correct the said observations.  Besides,  it  is not   such   an  exceptional  case  which  calls   for   the interference   of   this  court  under  Art.  136   of   the Constitution.

JUDGMENT: CRIMINAL  APPELLATE JURISDICTION  Criminal Appeal No. 87  of 1961. Appeal  by special leave from the judgment and  order  dated October 7, 1960 of the Patna High Court in Criminal Revision No. 460 of 1960. B.   B. Tawakley, Mrs. E. Udayaratnam and R. C. Prasad,  for the appellant. D.   P.  Singh,  M.  K. Ramamurthi, R. K.  Gary  and  S.  C. Agarwal, for respondent No. 1. 1963.   March 14.  Subba Rao J. delivered his own  judgment. The  judgment of Dayal and Mudholkar JJ., was  delivered  by Mudholkar J. SUBBA  RAO  J.-I have perused the judgment  prepared  by  my learned brother Mudholkar J. I agree that the appeal  should be dismissed. -but I would prefer to give my own reasons for doing so.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 17  

The  facts  giving  rise to this  appeal  are  simple.   The appellant is a medical practitioner and during the year 1959 he  was  acting  as Deputy  Superintendent,  Jahanabad  Sub- Divisional Hospital and Superintendent, Sub Jail, Jahanabad. A criminal case was pending before the Court of the  Munsif- Magistrate,  First  Class.  Jahanabad, and the  two  accused therein filed a petition in that Court for releasing them on bail.   On  October 3, 1959, the  learned  Munsif-Magistrate called  for  a report from the said medical officer  of  his opinion on the health of the said accused.  The said officer examined the 339 accused  and  sent  the  following  report  to  the  Munsif- Magistrate               "Examined  accused Ramsewak Dusadh and  Ramdeo               Dusadh  of  village Havellipur, P.  S.  Ghosi,               district Gaya and found that both of them  are               suffering  from  Hookworm infections  and  are               anaemic." On October 19, 1959 the learned Munsif -Magistrate made  the following order granting bail to the said accused :               "In  view  of  the  order  dated  3-10-1959  a               petition  signed by Superintendent,  Sub-jail,               Jahanabad,  is received.  In this petition  it               is  mentioned  that the  accused  persons  are               suffering  from Hookworm infection  and  hence               they  are  anaemic.   From  the  petition   it               appears that its body portion has been written               by  somebody else and it is simply  signed  by               Mr.  R. Saran, Superintendent.  It is  curious               to note that no actual examination report  has               been  attached with this petition.  It  is  an               extreme  case of carelessness on the  part  of               the  Doctor  concerned.   He  ought  to   have               realised that a judicial order would be passed               on his actual report and not on his  petition.               Hence let the copy of this petition and  order               sheet he forwarded to the Civil Surgeon, Gaya,               for  information.  It is argued by the  lawyer               appearing on behalf of the accused that  these               accused-, persons are poor and would not be in               a position to defend themselves, in case  they               would  not  be allowed bail.  I  therefore  on               considering  their poor circumstances and  ill               health  allow them- to remain on bail  on  Rs.               500/with one surety for the like amount." After    making    some   infructuous    attempts    through administrative channels to get the said remarks 340 against  him  expunged,  the said medical  officer  filed  a revision  petition  under  ss. 435 and 439 of  the  Code  of Criminal Procedure against the said order in the High  Court of  judicature  at  Patna.  The  High  Court  dismissed  the revision petition.  Hence the appeal. Learned  counsel  for  the  appellant  contendend  that  the remarks   made  by  the  learned  Munsif   Magistrate   were unjustified  and groundless and that they would  affect  the appellant’s future official career and, therefore, the  High Court  should  have  expunged  the  said  remarks.   Learned counsel  for  the  respondents, apart  from  justifying  the remarks,  contended that the High Court had no  jurisdiction to  expunge the remarks from, the judgment which had  become final. At  the outset I would like to make it clear that I  am  not expressing my opinion on the question whether the High Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 17  

in  an  appeal or a revision filed therein by  an  aggrieved party can expunge the remarks made by the trial Court in its judgment in disposing of the said appeal or revision.  I  am only addressing myself to the limited question whether in  a case  where the judgment has become final, that is  to  say, when no appeal has been preferred against the judgment by an aggrieved  party,  the High Court can  expunge  any  remarks found  therein at the instance of a third party.  I am  also confining  the  scope  of my judgment to  the  power  of  an appellate Court to expunge remarks in a criminal case. The  only  power  on which reliance  is  placed  by  learned counsel  for the appellant is that contained in s.  561A  of the Code of Criminal Procedure, which reads :               "Nothing in this Code shall be deemed to limit               or affect the inherent power of the High Court               to  make  such orders as may be  necessary  to               give                341               effect  to  any order under this Code,  or  to               prevent  abuse of the process of any Court  or               otherwise to secure the ends of justice." The  Judicial Committee in two decisions, viz.,  Emperor  v. Nazir  Ahmad (1), and Jairam Das v. Emperor (2),  had  taken the view that the said section gives no new powers but  only provides  that  those  which the  Court  already  inherently possesses shall be preserved What is the scope of this inherent power ? Can it be invoked in a case where the judgment has become final to expunge the remarks  made therein ?  By expunging remarks what does  the appellate Court do ? Substantially it strikes out a part  of the  judment.  Sometimes the part struck out may be  an  in- tegral part of the judgment, that is to say, the  conclusion may  not flow in the absence of the part deleted.   On  some occasions  remarks made by a Court on the credibility  of  a witness,  however exaggerated they may be, may be  the  sole reason  for not believing that witness.  There may  also  be other  occasions when the remarks may be so irrelevant  that they  may  not have any direct impact on the  judgment,  but such  instances  will  be very rare.  Whatever  may  be  the decree  of  impact, the result of expunging remarks  from  a judgment  is that it derogates from its finality.  There  is no provision in the Code of Criminal Procedure which enables an  appellate  Court in a case where the order  of  a  lower Court has become final between the State and the accused  to modify  the said order by deleting or striking out  some  of the  observations found therein.  Does s. 561 A of the  said Code  confer  such a power ? The conflicting views  on  this question are reflected in some of the judgments cited at the Bar.   Sulaiman  j.  in Panchanan Banerji  v.  Upendra  Nath Bhattwharji (3), holds that s. 561A of the Code of  Criminal Procedure, which was added in 1923, confers such a power and (1) A. 1. R. 1945 P. C. 18, 22. (2) (1945) 47 Bom.  L. R. 634. (P.C.) (3)  (1926) 1. L. R. 49 All, 254, 256. 342 he does not see any reason why such an inherent power should not  comprise a power to order a deletion of passages  which are  either irrelevant or inadmissible and  which  adversely affect the character of persons before the Court.  Tek Chand J. In the matter of Daly (1), also concedes such a power  to an  appellate  Court.  Beaumont C. J. in Rogers,  P.  J.  v. Shrinivas Gopal (2), remarks tersely that no Court can claim inherent  power  to  alter the judgment  of  another  Court. Dhavle  J.  in Bhutnath Khawas v. Dasrathi Das  (3),  agrees with  Beaumont  C.J.  in holding that  no  Court  can  claim

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 17  

inherent power to alter the judgment of another Court.   The Madras High Court in In re Public Prosecutor (4), holds that an  appellate  Court  has  power to  expunge  remarks  in  a judgment  in a suitable case.  The Full Bench of the  Bombay High  Court  in  State v. Nilkanth Shripad  (5),  posed  the question  thus  :  "The important question  that  arises  is whether  a  superior Court has inherent power to  alter  the record, as it were, by changing or altering a judgment which has  already been delivered and has become final as  far  as that particular Court is concerned", and expressed its  view as follows :               "A judgment of a lower Court may be wrong;               it  may  even be perverse The  proper  way  of               attack  that judgment is by bringing it  under               the scrutiny of the superior Court and getting               the  judgment  of the lower  Court  judicially               corrected........................................... ....               In  our opinion, the inherent power  that  the               High Court possesses is, in proper cases, even               though no appeal or revision may be  preferred               to  this  Court  to  judicially  correct   the               observations  of the lower Court  by  pointing               out   that  the  observations  made   by   the               Magistrate were not justified or were  without               any   foundation  or  were  wholly  wrong   or               improper." With respect, I agree with the conclusion arrived (1) (1927) 1. L. R. 9 Lah, 269, 275. (2) I. L.R. 1940 Bom. 415, 418, (3) A. 1. R, 1941 Pat. 544. (4) A.I.R. 1944 Mad, 614. (5) I.L.R. 1954 Bom  148,157, 160.  343 at by the Bombay High Court.  This judgment, if I may say so with  respect,  reconciles  the doctrine of  finality  of  a judgment and the necessity to give relief in an  appropriate case  to  a person who is not a party to  a  proceeding,  if uncharitable,  unmerited  and irrelevant  remarks  are  made against  him without any foundation whatsoever.   The  other decisions taking the contrary view infringe the  fundamental principle of jurisprudence that a judgment made by a  Court, however inferior it may be in the hierarchy, is final and it can  only  be modified in the manner prescribed by  the  law governing such procedure.  All the learned judges construing the scope of s. 561 A of the Code of Criminal Procedure have agreed on one question namely, to preserve the  independence of  judicial officers so that they may express  their  views without  fear or favour.  The observations made by  some  of the Judges are apposite in this context.  Tek Chand J. observed in In the matter of Daly (1) :               "It is of the utmost importance to the admini-               stration  of  Justice that  Courts  should  be               allowed to perform their functions freely  and               fearlessly  and without undue interference  by               this Court."               Chagla  C.  J. in State  v.  Nilkanth  Shripad               observed :               "It  is very necessary, in order  to  maintain               the independence of the judiciary, that  every               Magistrate,  however junior, should feel  that               he  can fearlessly give expression to his  own               opinion in the judgment which he delivers.  If               our Magistrates feel that they ,cannot frankly               and  fearlessly  deal with matters  that  come

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 17  

             before them and that the High Court is  likely               to   interfere   with  their   opinions,   the               independence   of  the  judiciary   might   be               seriously undermined." I  entirely agree with the remarks.  I reiterate that  every judicial officer must be free to express his mind (1927) 1 T.R. 9 Lab, 269, 275. (2) I.L.R. 1954 Bom. 148, 157, 160, 344 in  the matter of the appreciation of evidence  before  him. The phraseology used by a particular judge depends upon  his inherent  reaction to falsehood, his comparative command  of the English language and his felicity of expression.   There is  nothing  more deleterious to the discharge  of  judicial functions  than  to create in the mind of a  judge  that  he should conform to a particular pattern which may, or may not be, to the liking of the appellate Court.  Sometimes he  may overstep  the  mark.  When public  interests  conflict,  the lesser  should  yield to the larger one.  An  unmerited  and undeserved  insult to a witness may have to be tolerated  in the general interests of preserving the independence of  the judiciary.   Even  so,  a duty is  cast  upon  the  judicial officer  not  to  deflect himself from the  even  course  of justice  by  making disparaging and undeserving  remarks  on persons  that appear before him as witnesses  or  otherwise. Moderation  in  expression lends dignity to his  office  and imparts  greater  respect for judiciary.  But  occasions  do arise  when a particular judge, without  any  justification, may  cast  aspersions on a witness or any other  person  not before  him  affecting  the character  of  such  witness  or person.  Such remarks may affect the reputation or even  the career  of such person.  In my experience I find such  cases are  very  rare.  But if it happens, I agree with  the  Full Bench of the Bombay High Court that the appellate Court in a suitable case may judicially correct the observations of the lower  Court by pointing out that the observations  made  by that Court were not justified or were without any foundation were  wholly wrong or improper.  This can be done under  its inherent  power  preserved  under s. 561-A of  the  Code  of Criminal  Procedure.  But that power must be exercised  only in  exceptional  cases  where  the  interest  of  the  Party concerned would irrevocably suffer. From the aforesaid discussion the following  345 principles  emerge : (1) A judgment of a criminal  Court  is final  ; it can be set aside or modified only in the  manner prescribed by law. (2) Every judge, whatever may be his rank in the hierarchy, must have an unrestricted right to express his  views in any matter before him without fear or  favour. (3) There is a correlative and self-imposed duty in a  judge not  to make irrelevant remarks or observations without  any foundation,  especially in the case of witnesses or  parties not before him, affecting their character or reputation. (4) An  appellate Court has jurisdiction to  judicially  correct such  remarks, but it will do so only in  exceptional  cases where such remarks would cause irrevocable harm to a witness or a party not before it. Let  me now apply the said principles to the  instant  case. Here,  a bail application was pending before the  Magistrate on  the  ground that the accused were ill.   The  Magistrate asked  the medical officer to report on their  health.   The said officer sent a report stating that he had examined  the accused and that they were suffering from hookworm infection and  were  anaemic.   In  the statement  of  tile  case  the appellant says that he made a clinical examination and  also

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 17  

the examination of the stools of the accused; but he did not send  along  with  his report the  result  of  his  clinical examination  showing the particulars of the blood and  stool tests.   The learned Munsif-Magistrate pointed out  that  no actual  examination  report  was attached  to  the  petition (report) and that it was an extreme case of carelessness  on the part of the doctor concerned.  The Magistrate felt  that as  a  judicial officer he could not accept  the  mere  ipsi dixit  of the doctor unsupported by the results of  clinical examination to come to a conclusion one way or other whether the accused were really so ill as to be let on bail.  In the circumstances,  if the Magistrate characterised the  act  of the medicial officer in not sending the detailed report as 346 an  act  of extreme carelessness, can it be  said  that  his inference was such that the appellate Court should treat  it as  an  exceptional  case and judicially  correct  the  said observations?  Indeed, the High Court in its. judgment said:               "The   observation  of  the  learned   Munsif-               Magistrate does not seem to be wholly unjusti-               fied The doctor should have given the  reasons               for calling the accused person on whose behalf               bail petitions were moved as anaemic."               It rightly concluded thus :               "In the circumstances, if the Court said  that               the  doctor was careless, I do not think  that               there   is   any  impropriety   in   such   an               observation.   It  is likely that  some  other               Court may take a different view of the  thing,               but  that  is  no  ground  for  upsetting  the               observations  of  a  Court.   To  accept  this               contention would amount to placing unnecessary               fetters  on  the discretion of  the  Court  in               assessing  any  witness  or  any  evidence  in               course of its judgment or order."               With  these  observations,  it  dismissed  the               petition. Now,  the  question is whether in  such  circumstances  this Court  in  exercise  of its powers under  Art.  136  of  the Constitution  should  interfere with the order of  the  High Court.   Is it such an exceptional case which calls for  the interference  of this Court?  The High Court in exercise  of its  discretion,  for the reasons given by  it,  refused  to expunge  the remarks.  It is certainly not a  case  meriting the   interference  of  this  Court  in  its   extraordinary jurisdiction. That  apart, I entirely agree with the observations  of  the High Court.  A judicial officer does not  347 surrendar his judgment in medical matters to the ipsi  dixit of  the doctor.  The opinion of a doctor has  great  weight, provided it is supported by the material on which he  formed the opinion.  If he does not disclose the particulars of the clinical  results,  how can the Court come to  a  conclusion that the accused were so ill as to be released on bail?   In the  circumstances, the Magistrate said that the doctor  was grossly negligent.  It is not possible to say that the  said observation is either irrelevant or without foundation. In the result, the appeal fails and is dismissed. MUDHOLKAR J. In this appeal by special leave from a judgment of the High Court of Patna the question raised is as to  the powers  of  the  High Court under s. 561-A of  the  Code  of Criminal  Procedure in regard to expunging remarks  made  in its  judgment  or order by a court against a person  who  is neither a party nor a witness to the proceeding.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 8 of 17  

The question arises this way.  A bail application was  moved in  the court of Mr. B. Rai, Munsif Magistrate,Jahanabad  on behalf  of two persons who were accused in a  criminal  case pending  in  that court on the ground that they  were  lying seriously  ill in jail.  On October 3, 1959  the  Magistrate passed an order calling upon the Civil Assistant Surgeon  at that place, who, we are told, is also Superintendent of  the Sub-jail to report whether the accused persons are ill.   On October  7, 1959.  Mr. Sharan the Civil  Assistant  Surgeon, signing as the Superintendent of the Sub-jail submitted  the following report :               "Ref : Copy of order sheet dated 3-10-1959 in               G. R. 367/59 Ghosi P. S. case 3 (8)/59.               Sir,               Examined accused Ramsewak Dusadh and               Ramdeo Dusadh both sons of Dillan Dusadh of               348               village Havellipur P. S. Ghosi, district  Gaya               and found that both of them are suffering from               hookworm infections and are anaemic.               Yours faithfully,               Sd/ x x x " The report was addressed to the Magistrate.  On October  19, 1959  he passed his order releasing the accused  persons  on bail,  in the course of which he made  certain  observations which  are sought to be expunged.  For some  obscure  reason the learned magistrate has regarded what is plainly a report to  be  a  ’Petition’ and then blamed  Dr.  Sharan  for  not realising that a judicial order could be passed only on  his report  and  not "his petition".  That is not all.   He  has found fault with Dr. Sharan because (a) the report  appeared to  be in the handwriting of some person other than  himself and  was only signed by him and (b) "’no actual  examination report  was attached with this petition (sic)".   For  these reasons he observed in his order : "It is an extreme case of carelessness  on  the  part of  the  Doctor  concerned"  and ordered that a copy of the ’petition’ and the order sheet be sent to the Civil Surgeon, Gaya for information. The report of Dr. Sharan is couched in the usual form but if the Magistrate felt any doubt about the matter he could well have  sought  to  have  it cleared by  writing  to  him  for particulars.  No doubt, this might have entailed postponment of the case and thus delayed passing an order.  But it would seem  that  the  Magistrate did not really  think  that  the report  was  inadequate.  For, acting upon it,  he  in  fact released  the accused persons on bail on the very day,  that is October 19. All  this  is, however, very trivial and is not  a  kind  of matter which ought ever to have been brought up before  this Court.  No doubt the learned  349 Magistrate  has  said that the doctor was  careless  and  by forwarding a copy of the order straight to his  departmental superior  indicated that he expected action to be  taken  on the basis of his remarks.  But in view of the fact that  the learned  Magistrate  had  in fact acted  upon  the  doctor’s report  and had wrongly characterised it as a  petition  his remarks  could  not  reasonably have been  regarded  by  the doctor’s  superiors  as being very serious.  No  harm,  much less  any irreparable harm, could therefore be  expected  to result from these remarks. Upon  this  view we would not have  said  anything  further. But,  Mr. D. P. Singh, appearing for the State of Bihar  has raised  an objection to the jurisdiction of the  High  Court under s. 561-A of the Code and since it raises a question of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 9 of 17  

general  importance, it is necessary to deaf with it.   That section reads thus :               "Nothing in this Code shall be deemed to limit               or affect the inherent power of the High Court               to  make such orders as may be  -necessary  to               give  effect to any order under this Code,  or               to  prevent abuse of the process of any  Court               or otherwise to secure the ends of justice." This  provision  was  introduced in the  Code  when  it  was extensively  amended  in  the year 1923.  But  it  does  not confer and was not intended to confer any new powers on  the High  Courts.   The  courts  exist  not  only  for  securing obedience  to the law of the land but also for securing  the ends of justice in its widest sense.  All courts,  including the High Courts, can exercise such powers as the laws of the land confer upon them as well as such inherent powers to  do justice as are preserved expressly or are not taken away  by a  statute.   We  shall confine ourselves  to  the  inherent powers  of the High Court in criminal cases.  Now, s.  561-A says  in  clear terms that the inherent power  of  the  High Court to do certain things is 350 preserved and what we have to ascertain is whether the power to  expunge any passage from the judgment of  a  subordinate court is inherent in the High Court and must, therefore,  be deemed to have been preserved. The  power  of the High Court to expunge  remarks  from  the judgment or order of a subordinate court while dealing  with an  appeal from that court is not questioned by  Mr.  Singh. In  fact expunction of remarks was ordered by this Court  in appeal  in The State of U. P. v. J. N. Bagga (1), but  there is no discussion in the judgment on the point, as the  exis- tence of the power was not challenged.  We are not concerned here  with the powers of the appellate court.  The  question before us is whether the inherent power of the High Court to secure  the  ends of justice embraces the power  to  expunge passages  from the judgment of a subordinate court which  is independent  of  its  statutory powers to  alter,  amend  or reverse  the judgments of subordinate courts in  appeals  or revisions before it. Observations made by a subordinate court in its judgment  or order  may  very seriously affect, in a given case,  only  a party thereto in which event he can, if the observations are irrelevant  or  unjustifiable,  seek redress  by  appeal  or revision,  whichever of the remedies is available to him  at law.   But what if a stranger to the proceeding or a  lawyer engaged in the case is affected by the court’s remarks of  a similar  character?  Has he no remedy?  Must he  suffer  the consequences  of  irrelevant or unjustifiable remarks  of  a court though if similar remarks were made against a party to the  proceeding that party is entitled to seek redress?   It would  be a travesty of justice if an injured stranger to  a proceeding  should  have to suffer unheard as  a  result  of unjustifiable  and  harmful  observations made  by  a  court against him.  The case of an injured stranger would be of  a kind in (1)  Cr. A. No. 122 of 1959 decided on January 16, 1961.  351 which redress would be possible only if some court possesses such  power  and  can  exercise it to  secure  the  ends  of justice.   The  question is whether the highest court  in  a State has and must always be deemed to have had such  power. The  further question is whether the exercise of such  power would  involve alteration of a judgment or order and  if  so whether  that must be deemed to have been permitted  by  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 10 of 17  

Code. Certain  cases were cited at the Bar and we will  deal  with them in chronological order.  The first is In the matter  of H. Daly (1).  In that case Tek Chand J., said that the  High Court has power to expunge passages from judgments delivered by  itself or by subordinate courts and its power to  do  so has been put beyond controversy by the enactment of s. 561-A in  the  Code of Criminal Procedure.  While coming  to  this conclusion the learned judge has referred to five  decisions of the Chief Court of Lahore and pointed out that that court claimed  the power to expunge remarks in appropriate  cases. It  may incidentally be mentioned that he has also  referred to  the decision in Panchanan Banerjee v. Upendra Nath  (2), in which it was held that the High Court had inherent  power to order deletion of passages which are either irrelevant or inadmissible  and  which adversely affect the  character  of persons  before  the Court.  It may, however,  be  mentioned that  that was a case where the learned judge,  Suleiman  J. was dealing with an appeal against acquittal and ordered the expunction  of remarks while exercising  appellate  jurisdic tion  though  he  has referred in  this  connection  to  the inherent  powers of the court.  Neither of these  decisions, however, contains any discussion upon that point. Then  there  is the decision in Rogers  v.  Shriniwas  Gopal Kawale (3), in which Beaumont C. J. (1) (1927) I.L.R. 9 Lah, 269. (2) (1926) I.L.R. 49 All. 254, (3) I.L.R. (1940) Bom. 415, 352 held  that  the High Court had no power under  s.  561-A  to expunge  passages in judgments which have not  been  brought before  it  in  regular  appeal  or  revision.   There,   an application  was made under s. 561-A for  expunging  certain observations  criticising a witness made by  the  Additional Sessions judge of Poona in a criminal appeal.  Dealing  with the application the learned Chief justice observed :               "It  is  obvious  that,  if  the  jurisdiction               exists,  its exercise must place the Court  in               an  anomalous  position.  The  Court  must  go               though the record of a case in which it is not               called upon to act judicially at the  instance               of  a  party  who  is  not  aggrieved  by  the               decision,  and it may well be that  the  Court               will have to come to a conclusion upon matters               not in issue in the proceedings." He  referred  to  the decision in Emperor  v.  C.  Dunn  and Emperor v. Sidaramaya (2), in the first of which it was held that  the  High Court had no such jurisdiction  and  in  the second  it  was  said  that it  was  doubtful  whether  such jurisdiction  exists  in  the  High  Court.   He   expressed disagreement  with  the view taken in  Panchanan  Banerjee’s case (3) and Daly’s case (4) and observed :               "With  all respect to the learned  judges  who               have taken a different view, I am quite unable               to see how section 561A affects the  question.               That section provides that nothing in the Code               shall  be  deemed  to  limit  or  affect   the               inherent power of the High Court to make  such               orders  as may be necessary to give effect  to               any order under the Code, or to prevent  abuse               of  the process of any Court or  otherwise  to               secure the ends of justice.  So that all  that               the  section does is to preserve the  inherent               powers  of the High Court  without  conferring               any additional power.  In my opinion no  Court

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 17  

             can claim               (1)   (1922) 44 All. 401.               (3)   (1926) I.L.R. 49 AD. 254.               (2)   (1917) 19 Bom.  L.R. 912.               (4)   (1927) I.L.R. 9 Lah. 269.                353               inherent  power to alter the judgment  of  an-               other   Court.   All  powers  in  appeal   and               revision are statutory and not inherent in the               superior  Court.  When once a matter  is  duly               brought before a superior Court, then no doubt               inherent powers may be called in aid to enable               the  Court  to do complete  justice,  but  the               power to bring a matter in appeal or  revision               before  a superior Court must be conferred  by               statute  or  some enactment  having  statutory               effect." The  learned  Chief  justice  observed  that  the  power  of superintendence  conferred upon the High Court by s. 224  of the  Government of India Act over Courts subordinate  to  it does  not enable the High Court to correct a judgment  of  a subordinate  court and pointed out that ss. 435 and 439  Cr. P.C. only enable the High Court to satisfy itself about  the correctness, legality or propriety of any finding,  sentence or  order of an inferior court or of the regularity  of  the proceeding before it.  Then he observed :               "When the High Court is hearing an application               in  appeal  or revision, the whole  matter  is               before  it  and it can make any  order  conse-               quential  or  incidental to  the  order  under               review  and in my opinion, in such a case  the               Court  is entitled to expunge any  remarks  in               the  lower  Court’s judgment which  it  thinks               ought not to have been made.  But it seems  to               be  impossible to say that expunging  passages               from  a judgment giving reasons for  an  order               which  is not under appeal  involves  anything               consequential  or incidental to the matter  in               appeal.   If  the Court thinks that  any  such               ’action is called for, it can itself send  for               the record and act regularly in revision." In the end the learned Chief justice held that the  decision in  Emperor v. Dunn (1), was right and has not been  altered by the introduction of s. 561-A, (1)  (1922) 44 AU. 401. 354 This  judgment  was partially overruled by a Full  Bench  in State v. Nilkanth Shripad Bhave Chagl a C.   who   delivered the judgment of the court concurred     with the observation of Beaumont C. J.,that no court can claim inherent power  to alter  the judgment of another court and after pointing  out that  Beaumont C.J., had also said in his judgment that  the Court  had inherent jurisdiction to alter the judgment  once the matter comes before it in appeal or revision, said :               "It  is difficult to understand, if  the  High               Court  has no inherent jurisdiction  to  alter               the  judgment  of  another  Court,  how   that               jurisdiction arises merely because the  matter               comes  before  the  High Court  in  appeal  or               revision.   Either  the  Court  has   inherent               jurisdiction  or  it  has  not.   If  it   has               inherent  jurisdiction,  it can  be  exercised               either in appeal or in revision, or,               s. 561-A." The   learned   Chief  Justice  then  quoted   the   further

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 12 of 17  

observations  of  Beaumont C. J., Which we  have  reproduced earlier and said :               "It  is difficult to understand how the  Court               can  act regularly in revision if there is  no               effective  order  which can be  challenged  in               revision.   Therefore,  in  our  opinion  this               judgment  was correctly decided to the  extent               that  it laid down that there was no  inherent               jurisdiction in a superior Court to alter  the               judgment of another Court.  But to the  extent               that  this Division Bench laid down  that  the               power to judicially correct the judgment of  a               lower   Court  only  arose  in   appeals   and               revisions  it was not correctly decided.   The               power of the High Court judicially to  correct               any subordinate judge exists independently  of               applications which come before it by way of               (1)   I.L.R. (1954) Bom.148.                355               appeal or revision.  This Court can judicially               correct   any   subordinate   judge   in   any               application made to it which it can  entertain               under S. 561-A of the Court."               The learned Chief justice then referred to  an               unreported  decision of the Bombay High  Court               in which the view was taken that the Court has               jurisdiction  to  expunge  remarks  from   the               judgment of a lower court although the  matter               was not before it in appeal or revision and in               which   the  Court  expressed  difficulty   in               appreciating  the view taken in  Roger’s  case               (1).   Then the learned Chief justice  pointed               out that be did not find it easy to understand               how  if,  as was said by Beaumont C.  J.,  the               power  to  alter the judgment of  an  inferior               ’Court  is  not an inherent power, it  can  be               brought  in aid as an inherent power  provided               only  the matter is before the High Court,  in               what   he   has   called   regular   revision.               According  to  the learned  Chief  Justice  in               entertaining  an  application under  s.  561-A               "what  the  High  Court should do  is  not  to               expunge  remarks but judicially to correct  by               its judgment the judgment of the lower Court."               We  also find it difficult to understand  what               Beaumont  C.J. meant when he said on  the  one               hand  that the if High Court has  no  inherent               power  to  alter the judgment of  an  inferior               court and on the other that when the matter is               before  the  High  Court  by  way  of  regular               revision   it  can  alter  the   judgment   by               exercising  its  inherent power.   Either  the               High Court has inherent power to alter a judg-               ment of a subordinate court or it has not.  If               it  has no inherent power to do so  ’the  mere               fact that a regular proceeding arising out  of               the  judgment  of  the  subordinate  court  is               before it would make no difference.  For, even               then  it cannot do anything as its  revisional               powers  under s. 439 Cr.  P. C. do not  enable               it to expunge remarks.  Yet, according to  the               learned Chief justice, the High Court can then               exercise its inherent power.  How it can do so               when on the               (1)   I.L.R. (1940) Rom, 415.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 13 of 17  

             356               earlier  statement of the legal  position,  it               has  no  such inherent power, is not  easy  to               follow.               We also feel some difficulty in  understanding               the judgment of Chagla C.J. when he says  that               by entertaining an application under s. 561 -A               the  High  Court can  judicially  correct  the               judgment  of  a subordinate court but  at  the               same time not expunge remarks therein as doing               so  would  be  altering the  judgment  of  the               subordinate  court.   If  the  alteration   or               amendment  of  the  judgment  or  order  of  a               subordinate   court  is  not   the   necessary               consequence of the judicial correction of such               judgment or order we fail to see how  removing               from it a passage which is not relevant to the               controversy  decided  by  the  judgment  would               amount   to  such  alteration.    A   judgment               consists  of the verdict of the court and  its               reasons  bearing  on it. If a  superior  court               supersedes or alters or amends either of these               it will be reversing, altering or amending the               judgment.   But  if a document  embodying  the               judgment contains besides the court’s  verdict               and  reasons therefor, any  additional  matter               which  is  unrelated to either  of  these  two               components of the judgment it cannot  properly               be  regarded as a part of the judgment  merely               because it is contained in the same  document.               By  including within the  judgment  irrelevant               matter the court cannot make them an  integral               part of the judgment.  The power to delete  or               order the deletion of such matter for securing               the  ends of justice must be deemed to  inhere               in the High Court.               The learned Chief justice seems to accept  the               position  that under s. 561-A  an  application               can  be made to the High Court complaining  of               injurious  remarks by a subordinate  court  on               the  ground  that they  are  unjustifiable  or               irrelevant   and  that  such  an   application               becomes a judicial proceeding before the  High               Court.   He also accepts that the  High  Court               can  thereupon  correct the  judgment  of  the               subordinate                357               court  in appropriate circumstances.   If  the               High  court has power in such a proceeding  to               correct the judgment or order of a subordinate               court how exactly and when does it exercise it               ?  Earlier in his judgment the  learned  Chief               justice has said :               "A judgment of a lower court may be wrong;  it               may  even  be  perverse.  The  proper  way  to               attack  that judgment is by bringing it  under               the scrutiny of the superior Court and getting               the  judgment  of the lower  Court  judicially               corrected.  But is it proper for the  superior               Court to alter or amend the judgment which has               already  been delivered ? In our opinion,  the               inherent  power that the High Court  possesses               is, in proper cases, even though no appeal  or               revision  may be preferred to this  Court,  to               judicially  correct  the observations  of  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 14 of 17  

             lower Court by pointing out that the  observa-               tions ’Made by the Magistrate were riot justi-               fied  or were without any foundation  or  were               wholly wrong or improper." It  may be mentioned that the Advocate-General who  appeared in  the  case had urged that merely making  observations  of this  kind  or  passing strictures on  a  subordinate  court stands  on a different footing from expunging  objectionable remarks.  The learned Chief justice observed :               "In our opinion it is not necessary to express               the  displeasure  of this  Court  against  any               observations  made  by a Magistrate  or  by  a               Sessions  judge by expunging the remarks  from               the judgment delivered by him. x x x x In  our               opinion,  therefore., it would not be  correct               to say that expunging remarks from a  judgment               or   deleting   passages   from   a   judgment               constitutes the inherent power of any superior               Court  and, therefore, the inherent  power  of               the High Court." 858 The learned Chief justice quite rightly holds that the  High Court has inherent power judicially to correct a subordinate court  even for making harmful remarks against a person  who is  not a party to the proceedings.  But, according to  him, the sole content of this power consists of expression by the superior court of its displeasure at the offending  remarks. We can discern no principle upon which such a limitation  on the inherent powers of the High Court can be justified. Moreover,   mere  expression  by  the  High  Court  of   its displeasure  at the offending observations of a  subordinate court  cannot  even  be regarded as  amounting  to  "judical correction"  of  the error committed by  such  Court.   For, despite the disapprobation, the remarks continue to be there on  the record of the subordinate court.  The form  normally adopted by a superior court for "judicial correction" of  an error  of  a  subordinate court does  not  consist  of  mere expression  of its disagreement with the view taken  by  the subordinate  court  but  of effacing  that  error  and  thus depriving  it of its legal effect.  That is  precisely  what ought  to  be done with respect to irrelevant remarks  of  a subordinate  court when they are found to  be  unjustifiable and harmful.  The appropriate form in which this part of the judicial  process may be carried out would be either by  ex- punging  them or directing them to be expunged so that  they would cease to have any effect. There  can  be  no doubt that the  judgment  of  a  tribunal empowered  by law to adjudicate upon and decide  any  matter affecting the rights of parties is inviolable unless the law allows  it to be questioned or interfered with.  In  such  a case the judgment can be challenged only and interfered with only   by  the  specified  authority  and  to   the   extent permissible  by  the express provisions of  law.   No  other court,  not even the High Court, unless expressly  permitted by  359 law  can  entertain a challenge or exercise any  power  with respect   to  a  judgment.   Its  inherent  power   is   not exerciseable for this purpose because what is made final  or inviolable by law is beyond the purview of such power.   But the   inviolability  which  attaches  to  a  judgment   must necessarily  be confined to its integral parts, that is  the verdict  and reasons therefor.  It cannot extend to  matters which  though ostensibly a part of the judgment are  not  in reality its integral parts.  It is because of this that  the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 15 of 17  

majority  of the High Courts hold that they have always  had the  power  to  expunge  passages  from  the  judgments   of subordinate courts in certain circumstances.  In other words that this power has always been there and can be resorted to for securing the ends of justice.  It is significant to note that despite this, though the Code was amended materially in 1955  the  legislature did not indicate in s. 561-A  or  any other  provision that this power did not exist or  is  taken away.  Clearly the High Courts, by expunging remarks from an order  or judgment of a subordinate court, would not in  any event be altering it on merits or in any matter of substance but be only deleting from it matter which being alien to the matter  before  the court ought never to  have  been  there. When  such only is the effect of what the High  Court  does, can prohibition to this court be inferred from the fact that ss.  423 and 439, which deal with appellate  and  revisional powers,  are silent about such matters?  We are  clear  that they  do  not  exclude  such  power.   As  already   stated, expunction  of  irrelevant remarks does not  amount  to  the alteration  or  amendment  of a judgment or an  order  of  a subordinate  court.   No doubt, the exercise of  such  power will have the effect of taking out of the judgment or  order something  which was there before and thus in a limited  way to  interference with the content of the document  embodying the judgment or order.  But bearing in mind the paramount 360 importance  of securing the ends of justice the  High  Court must be deemed to have such power. When we speak of the inherent powers of the High Court of  a State we mean the powers which must, by reason of its  being the  highest court in the State having general  jurisdiction over civil and criminal courts in the State, inhere in  that court.   The powers in a sense are an inalienable  attribute of the position it holds with respect to the courts subordi- nate  to  it.  These powers are  partly  administrative  and partly  judicial.  They are necessarily judicial  when  they are  exercisable  with respect to a judicial order  and  for securing  the  ends of Justice.  When we speak  of  ends  of justice  we do not use the expression to comprise within  it any  vague or nebulous concept of justice, nor even  justice in the philosophical sense but justice according to law, the statute  law and the common law.  Again, this power  is  not exercisable  every time the High Court finds that there  has been a miscarriage of justice.  For, the procedural laws  of the  State provide for correction of most of the  errors  of subordinate courts which may have resulted in miscarriage of justice.  These errors can be corrected only by resorting to the procedure prescribed by law and not otherwise.  Inherent powers  are in the nature of extraordinary powers  available only  where no express power is available to the High  Court to do a particular thing and where its express powers do not negative the existence of such inherent power.  The  further condition  for its exercise, in so far as cases arising  out of the exercise by the. subordinate courts of their criminal jurisdiction are concerned, is that it must be necessary  to resort to it for giving effect to an order under the Code of Criminal Procedure or for preventing an abuse of the process of the court or for otherwise securing the ends of justice. The  power to expunge remarks is no doubt  an  extraordinary power but nevertheless it does  361 exist  for  redressing  a kind of grievance  for  which  the statute provides no remedy in express terms.  The fact  that the statute recognizes that the High Courts are not confined to the exercise of powers expressly conferred by it and  may

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 16 of 17  

continue  to  exercise  their inherent  powers  makes  three things  clear.  One, that extraordinary situations may  call for the exercise of extraordinary powers.  Second, that  the High  Courts  have  inherent power to  secure  the  ends  of justice.  Third, that the express provisions of the Code  do not  affect that power.  The precise powers which inhere  in the High Court are deliberately not defined by s. 561- A for good  reason.   It is obviously not possible to  attempt  to define  the  variety of circumstances which  will  call  for their exercise.  No doubt, this section confers no new power but it does recognise the general power to do that which  is necessary  "to give effect to any order under this Code,  or to prevent abuse of the process of any Court or otherwise to secure the ends of justice." But then, the statute does  not say  that the inherent power recognised is only such as  has been exercised in the past either.  What it says is that the High  Courts  always had such inherent power and  that  this power  has  not  been taken away.  Whenever  in  a  criminal matter  a  question  arises  for  consideration  whether  in particular circumstances the High Court has power to make  a particular kind of order in the absence of express provision in the Code or other statute the test to be applied would be whether it is necessary to do so to give effect to an  order under the Code or to prevent the abuse of the process of the court or otherwise to secure the ends of justice. When  the  question  arises before the  High  Court  in  any specific  case whether to resort to such undefined power  it is   essential  for  it  to  exercise  great   caution   and circumspection.  Thus when it is moved by an aggrieved party to expunge any passage from 362 the  order  or judgment of a subordinate court  it  must  be fully  satisfied  that the passage complained of  is  wholly irrelevant  and  unjustifiable, that its  retention  on  the records  will  cause serious harm to the person to  whom  it refers  and that its expunction will not affect the  reasons for the judgment or order. This  aspect of the matter has been emphasised by Chagla  C. J.,  in the aforesaid case and we have no doubt that  it  is very necessary in order to maintain the independence of  the judiciary that every presiding officer of a criminal  court, however  junior,  should feel that he  can  fearlessly  give expression  to  his view in the judgment or order  which  he delivers  and  that no impression should be  allowed  to  be created  in the mind of the presiding officer that the  High Court is likely to interfere lightly with his opinions  For, otherwise his independence will be seriously undermined. To sum up, every High Court as the highest court  exercising criminal jursidiction in a State has inherent power to  make any  order for the purpose of securing the ends of  justice. This  power extends to expunction or ordering expunction  of irrelevant   passages  from  a  judgment  or  order   of   a subordinate   court  and  would  be  exercised  by   it   in appropriate  cases for securing the ends of justice.   Being an  extraordinary power it will, however, not be pressed  in aid  except for remedying a flagrant abuse by a  subordinate court of its powers such as by passing comment upon a matter not  relevant  to  the controversy before it  and  which  is unwarranted or is likely to harm or prejudice another. In  the  case before us, as we have already  indicated,  the remarks  are  not such as are likely to cause  harm  to  the appellant nor are such as should cause any harm to him.  We, therefore, hold that  363 this is not a fit case for the exercise of the extraordinary

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 17 of 17  

power  of the High Court under s. 561-A.  For these  reasons we dismiss the appeal. Appeal dismissed 363