TMI Blog1963 (3) TMI 87X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. 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 themse ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ready inherently possesses shall be (1945)47BOMLR634 preserved. 9. 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 judgment. Sometimes the part struck out may be an integral 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment 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. 561A 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 I.L.R. (1927) Lah. 269 : It is of the utmost importance to the administration of justice that Courts should be allowed to perform their functions freely and fearlessly and without undue interference by this Court. 11. Chagla C.J. in State v. Nilkanth Shripad I.L.R. 1954 Bom. 148, 157, observed : It is very necessary, in order to maint ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cably suffer. 13. From the aforesaid discussion 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) 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. 14. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ficer does not surrender his judgment in medical matters to the ipse 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. 19. In the result, the appeal fails and is dismissed. J.R. Mudholkar, J. 20. 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 not a witness to the proceeding. 21. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 24. 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 general importance, it is necessary to deal 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. 25. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e and harmful observations made by a court against him. The case of an injured stranger would be of a kind in 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 Code. 28. 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 I.L.R. (1927) Lah. 269. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 can claim 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. 31. 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 Sections 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d. The power of the High Court judicially to correct any subordinate Judge exists independently of applications which come before it by way of 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. 34. 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 I.L.R. (1940) Bom. 415. Then the learned Chief Justice pointed out that he 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e 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 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 it is 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 lower Court b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... judicate 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 law can entertain a challenge or exercise any power with respect to a judgment. Its inherent power is not exercisable 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 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 thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ot 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. 42. The power to expunge remarks is no doubt an extraordinary power but nevertheless it does 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 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 ..... 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