Citation Codes

Equivalent Citations

citation codes

Case Number

Criminal Application No. 79 of 1953

Attorney(S)

M.P Amin, Advocate General, with H.M Choksi, Government Pleader, for the State.
V.S Desai, for the Sessions Judge.
K.N Dharap, with K.B Sukhthankar, for the opponents.

Judges

Mr. M.C Chagla, C.J
Mr. Bavdekar
Mr. Dixit, JJ.

Acts

See more information ...

Smart Summary

Structured Summary of the Opinion — Full Bench (Bombay High Court)

Factual and Procedural Background

This Full Bench considered an application by the State of Bombay to expunge certain remarks made by the Sessions Judge, North Satara. The remarks were made when the Sessions Judge was dealing with a bail application and concerned adverse strictures about the learned Magistrate before whom the underlying criminal case was pending. The application was not framed as an appeal or a criminal revision and there was no effective order by the Sessions Judge that could be challenged in the ordinary way. A Full Bench was constituted because of conflicting Division Bench decisions in this Court on the point whether the High Court has power to expunge remarks from the judgments of subordinate Courts.

Legal Issues Presented

Whether Rogers v. Shriniwas was correctly decided (i.e., whether the decision in that case accurately stated the law on the power to expunge remarks).
Whether the High Court possesses an inherent power to expunge (delete) remarks from the judgment of a lower Court.
Whether any such power (if it exists) can be exercised only when the matter is properly before the High Court by way of appeal or revision, or whether it can also be exercised on an independent application (for example, under s. 561A of the Criminal Procedure Code) when no effective order is before the High Court.
Whether s. 561A of the Criminal Procedure Code enables the High Court to entertain applications not otherwise contemplated by the Code for the purpose of securing the ends of justice (including, potentially, correcting or dealing with prejudicial remarks).

Arguments of the Parties

M.P. Amin (for the State / supporting jurisdiction to expunge)

Conceded that s. 561A gives statutory recognition to inherent powers but submitted the High Court has an inherent power to expunge remarks from subordinate Courts.
Argued that s. 561A permits an application to invoke the High Court's inherent jurisdiction where no other statutory remedy is available (so a party need not rely solely on appeal or revision).
Contended that if a portion of a judgment can be severed without affecting the fabric or structure of the judgment, that portion may be deleted and the rest of the judgment left intact.
Asserted that in gross cases the High Court should express complete disapproval and order that prejudicial remarks find no place in the record.

V.S. Desai (opposing the independent application to expunge)

Contended that an application for mere expunging of remarks is not maintainable; jurisdiction to seek redress must be conferred by statute and there is no such statutory power to bring matters solely for invoking inherent powers.
Relied upon historical provisions and precedents (e.g., s. 224 of the Government of India Act, 1935) to argue that powers of superintendence did not permit questioning a judgment not otherwise subject to appeal or revision.
Maintained that, at most, the High Court can judicially express disapproval or correct a lower Court's judgment; it cannot expunge or rewrite it.
Argued that strictures do not equate to a “finding” within the meaning of s. 435 CrPC, and the ends of justice do not require alteration of a judgment by the High Court.

K.N. Dharap (opposing expunction)

Submitted that expunging remarks would amount to directing the lower Court to write its judgment according to the view of the High Court, which is impermissible.
Argued that the High Court can approve or disapprove of remarks but cannot order their removal from the lower Court's judgment.

Advocate General (as recorded in the opinion)

Did not dispute that the present application did not fall under ss. 435 or 439 CrPC.
Highlighted the potential for persons (e.g., lawyers or strangers to proceedings) to be severely criticised by subordinate Courts and thus to be left without remedy if the High Court required that a proper appeal/revision be the only route to redress.
Urged that s. 561A was enacted to emphasise the High Court's wide jurisdiction to pass orders to secure the ends of justice and that the High Court should therefore entertain applications not contemplated by other sections of the Code where justice so requires.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court (how this Full Bench used or distinguished the precedent)
Rogers v. Shriniwas	Considered whether the High Court may expunge remarks only when the matter comes before it under statutory power (appeal/revision); Beaumont C.J.'s view that Court has no inherent power to alter another Court's judgment but may do so when matter is before it in statutory jurisdiction.	The Full Bench agreed with Rogers to the extent that a superior Court has no inherent power to alter another Court's judgment in general, but disagreed with Rogers to the extent it held that the power to judicially correct arises only in appeals or revisions; the Full Bench held such correction can also be effected in applications entertained under s. 561A.
Emperor v. C. Dunn	Allahabad High Court held High Court had no power to expunge remarks in cases where the effective order of the lower Court was not before it in a regular manner (pre-1923 decision referenced).	The opinion records this decision as an instance where the High Court was held not to have expunging power when no effective order was before it; used as historical context for the debate on inherent power and the effect of s. 561A.
Panchan v. Upendra	After s. 561A was introduced, Sulaiman J. held that the High Court could delete passages from lower Court judgments if they affected the character of any person (in a revision application arising from complainant against an order of acquittal).	The Full Bench noted Panchan v. Upendra but observed that in that case the power was exercised in a revision context and the question whether the High Court could act when no effective order was before it was not considered.
Emperor v. Sidramayya (also cited as Sidramaya)	Early Bombay High Court authority; doubted whether the High Court had power to alter the judgment of a lower Court; described the power as extraordinary and to be used sparingly.	Quoted by the Full Bench to show that while alteration is exceptional, the High Court has, in proper cases (e.g., State v. Gulam), altered/delete portions so long as the structure of the judgment remains intact.
Holibasappa In re	Bombay High Court laid down a general proposition that Courts should not make prejudicial remarks against persons who are not parties, but did not express an opinion regarding particular remarks in the case.	The Full Bench cited this to distinguish power to express an opinion from power to expunge; noted Courts can lay down general principles but that does not resolve whether expunction is permissible.
State v. Gulam	Bombay High Court (1952) used the power in an appeal against an order of acquittal; demonstrated that in a proper case a Court can alter a judgment and delete a portion while leaving the fabric intact.	The Full Bench referred to this case as an instance where deletion was carried out in appeal; observed that the question of jurisdiction was not raised in relation to some judgments where expunction occurred.
H. Daly (In the matter of Daly)	Decision of the Lahore High Court referenced among other High Courts' views that they have jurisdiction to expunge remarks from subordinate Courts' judgments.	The Full Bench cited this as part of an array of decisions from other High Courts that recognized some form of power to deal with prejudicial remarks, but noted that those Courts did not always consider whether an inherent power to alter another Court's judgment existed.
Mohammad Qasam v. Anwar Khan	Listed among decisions of other High Courts relevant to the issue of expunging remarks.	The Full Bench listed it as an example of other High Courts taking a view supportive of jurisdiction to expunge; the opinion does not provide further detail on the rule applied in that case beyond this listing.
Public Prosecutor, In re (I.L.R (1944) Mad. 614)	Madras High Court decision cited among decisions of other High Courts on the subject of expunction or dealing with prejudicial remarks.	The Full Bench noted this case as part of other High Court authorities; the opinion does not elaborate further on the particulars of its holding beyond inclusion in the list.
Emperor v. Nazir Ahmed	Privy Council decision holding that s. 561A does not confer new powers upon High Courts; it safeguards powers which already existed in the High Court.	The Full Bench relied on the Privy Council view to state that s. 561A recognises existing inherent powers rather than creating new ones; used to frame the effect of s. 561A in relation to the Court's jurisdiction.
Jairam Das v. Emperor	Privy Council authority cited together with Nazir Ahmed for the proposition that s. 561A does not create new powers but preserves existing ones.	Used similarly by the Full Bench to interpret s. 561A's purpose as safeguarding existing jurisdiction and permitting orders necessary to secure the ends of justice.
State v. Gulani	Referred to as a judgment where remarks were expunged (the opinion states that in some judgments remarks had been expunged and that jurisdiction had not been debated in those cases).	The Full Bench observed that in the cited unreported judgments (including this), expunction had been ordered but the jurisdictional question was not argued or considered.
Benerji v. Upendramal	Allahabad High Court authority noted as taking the view that High Courts have jurisdiction to expunge remarks from subordinate Courts' judgments.	The Full Bench recorded this as another instance where a High Court had recognised power to expunge, while noting that in many such authorities the question whether a superior Court has an inherent power to alter another Court's judgment was not fully considered.

Court's Reasoning and Analysis

The Full Bench undertook a multi-stage analysis:

Preliminary statutory context: The Bench acknowledged the Privy Council's view that s. 561A does not create new powers but preserves the High Court's inherent powers to make orders "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."
On jurisdiction to entertain an independent application: The Court reasoned that if s. 561A were read to permit extraordinary orders only when a proceeding properly before the Court (in the sense of being an appeal or revision) was in existence, then persons adversely affected by prejudicial remarks but without a statutory route of appeal or revision would be left remediless. To avoid such an unjust result, the Court concluded that s. 561A must permit the High Court to entertain applications not otherwise contemplated by the Criminal Procedure Code where the ends of justice require intervention.
On the nature of inherent power to alter another Court's judgment: The Court accepted the proposition that no superior Court can claim an unfettered inherent power to alter the judgment of another Court. It found difficulty in accepting that such a power would arise only when a matter is before the High Court by appeal or revision (as suggested in Rogers), because that position would make the existence of inherent power contingent on the mode of invocation. The Full Bench therefore held that while a superior Court does not have an arbitrary power to rewrite another Court's judgment, it has an independent jurisdiction (recognised by s. 561A) to "judicially correct" observations of lower Courts in appropriate cases.
Distinction between "expunging" and "judicial correction": The Bench emphasized a distinction between formally expunging passages from a lower Court's judgment (i.e., directing deletion from the record) and judicial correction by the High Court through its own judgment which disapproves, criticises and sets aside the effect of the offending observations. The Bench concluded that expunction as a power to alter the record is not inherently vested in a superior Court; instead, the proper course is for the High Court to judicially correct (i.e., state its disapproval in strong terms) rather than to expunge remarks from the subordinate Court's formal judgment.
On when intervention is appropriate: Even where the High Court can entertain applications under s. 561A and judicially correct a lower Court's observations, such jurisdiction is to be exercised only in the most exceptional and rare cases. The Court stressed the need to preserve judicial independence of subordinate judges: magistrates must be able to give frank opinions without fear of routine interference. Intervention is warranted where remarks are made without any foundation, where they risk doing irreparable harm (especially to parties or strangers to the proceeding who have not been heard), or where the decision is clearly wrong or erroneous.
Relationship to prior decisions: The Court analyzed prior decisions (including Rogers v. Shriniwas) and found them correct in some respects (recognition that a superior Court lacks arbitrary power to alter another Court's judgment) but incorrect insofar as they held that the power to judicially correct arises only within appeal/revision procedures. The Full Bench held that s. 561A allows the Court to entertain other applications for the ends of justice and to judicially correct subordinate judgments in exceptional circumstances.

Holding and Implications

Holding:

The High Court may entertain applications under s. 561A that are not otherwise contemplated by the Criminal Procedure Code in order to secure the ends of justice; however, the High Court does not possess an unfettered inherent power to expunge or alter the judgment of a subordinate Court by deleting passages from the record. Instead, the High Court's proper role is to judicially correct or censure such remarks by its own order, and any intervention of this kind must be confined to the most exceptional cases.

Immediate consequence in the present proceeding:

The application by the State to expunge the remarks made by the Sessions Judge was ultimately considered on the merits by a Division Bench (Chagla C.J. and Dixit J.) and was rejected. The Full Bench's guidance on jurisdiction and the limits of expungement framed the legal principles applied.

Broader implications (as explained by the Court in the opinion):

The decision clarifies that s. 561A must be read to enable the High Court to entertain exceptional applications designed to secure the ends of justice, including judicial correction of prejudicial remarks, where no appeal or revision is available.
The ruling cautions that the High Court must exercise this jurisdiction sparingly to preserve the independence of subordinate judiciary; interference is justified only in clear, gross, or irreparably harmful cases.
The Court emphasized that judicial correction should not amount to rewriting the lower Court's judgment; instead the High Court should state its disapproval in strong terms and, where appropriate, sever and leave intact any portion that can be removed without disturbing the judgment's fabric. The opinion does not purport to create a broad new power of automatic expunction or rewriting of subordinate judgments.

If a reader seeks the verbatim orders or the unreported judgments referred to in the opinion, those documents were not included in the provided text.

Show full summary ...

State v. Nilkanth Shripad Bhave And Another

M.P Amin, J.:—

The point for decision before the Full Bench is whether Rogers v. Shriniwas(8) was rightly decided. Most of the other High Courts have now held that they have power to expunge remarks from the judgment of the lower Courts, and our High Court too has exercised that power in subsequent unreported cases.

I at once concede that s. 561A of the Criminal Procedure Code 1898, confers no new powers on the High Courts, it only gives statutory recognition to their existing inherent powers. Before the introduction of that section in 1923, the Allahabad High Court had held in Emperor v. C. Dunn(9) that the High Court had no power to expunge remarks in cases in which the effective order of the lower Court was not before it in a regular manner. The point again arose in that Court in Panchan v. Upendra after s. 561A was introduced. Relying upon the new section in that case Sulaiman J. held that the High Court had power to delete passages from the lower Court's judgment if they affected the character of any person. But that was a case arising out of a revision application filed by the complainant against an order of acquittal, and the right of the High Court to exercise the power without there being any effective order before it was not considered.

Now the two points that arise for consideration are, first whether the High Court has inherent power to expunge remarks, and secondly, whether the power can be exercised only when the matter comes up before the court effectively or it may also be exercised in an application invoking the exercise of the inherent powers.

My submission is that the existence of the inherent power to expunge remarks has been conceded even by Beaumont C.J in Rogers v. Sriniwas.(10) But according to him the case must come before the High Court under its statutory power. If any of the parties to the proceeding does not move the High Court, then the High Court may send for the record of the case under s. 435 and exercise the power of expunction after the record has become before it.

Bavdekar J. In such a case you pretend to exercise the powers of revision. Really you don't act under s. 439.]

But then there must be some way of bringing the matter before the Court. Once it is conceded that there are inherent powers, there must be some method by which they can be invoked. You cannot have inherent powers in vacuum; otherwise there will be a relief without a remedy. Section 561A enables the High Court to entertain a proceeding not contemplated by the Criminal Procedure Code. Under that section you can make an application for the very purpose of invoking the inherent jurisdiction of the High Court.

The first case of the Bombay High Court is Emperor v. Sidramaya [(1017) 19 Bom. L.R 912]. It was doubted there whether the High Court had power to alter the judgment of the lower Court. In the next case of Holibasappa In re. [(1920) 45 Bom. 1127], the petitioner asked the High Court to express an opinion with regard to certain adverse remarks made against him by the Magistrate. The High Court remained content with laying down a general proposition that the Courts should not make prejudicial remarks against persons who are not parties before them. No opinion as regards the particular remarks was expressed.

[C.J The Courts can pass pass orders one way or the other but they have no jurisdiction merely to express opinions].

Power of expressing an opinion is different from the power of expunction. My submission is that the High Court has the latter power, viz. that of expunging remarks.

[C.J How can we alter somebody else's judgment?]

The inherent jurisdiction of the High Court extends even to making alterations in the lower Court's judgment. Of course, as said in Emperor v. Sidramayya [(1917) 19 Bom. L.R 912], the power is extraordinary and must be used very sparingly. In State v. Gulam [(1952) 54 Bom. L.R 968], it was used by our Court in an appeal against an order of acquittal. In a proper case you can alter the judgment and delete a portion from it provided you leave the fabric or the structure of the judgment in tact.

[Bavdekar J. Under which particular words of s. 561A does the High Court exercise the power of expunction?]

The relevant words are “otherwise to secure the ends of State justice.” A person whose conduct or character has been unjustly criticised by the lower Court will have no remedy if the proceedings do not otherwise come before the High Court. Whenever there is a gross abuse of authority the High Court must interfere and give relief.

The cases of the other High Courts are in the matter of H. Daly [(1927) 9 Lah. 269]; Mohammad Qasam v. Anwar Khan [(1926) 27 Cr. L.J 510]; Public Prosecutor, In re I.L.R (1944) Mad. 614].

V.S Desai.—My submission is that an application for mere expunging of remarks is not maintainable. A matter can be brought before a Court under a statutory provision but you cannot bring it only for the purpose of invoking inherent powers. Power to go before the Court for redress must be conferred by statute. There is no such power under the Criminal Procedure Code. Section 224 of the Government of India Act, 1935, which gave powers of superintendence to the High Courts over the subordinate Courts made it clear that the power did not confer any jurisdiction to question a judgment of any inferior Court which was not otherwise subject to appeal or revision, There is no parallel provision in art. 227 of the Constitution of India, but the reasoning in Rogers v. Shrinivas [(1940) 42 Bom. L.R 478] still holds good.

Assuming that the Court can entertain the application, the power of the High Court does not extend to altering the judgment. The High Court may have power to express disapproval of particular remarks of the subordinate Court, but it cannot expunge them. The utmost that the High Court can do is judicially to correct the judgment of the lower Court. After all it is the judgment of that Court and it cannot be rewritten for it by any other Court. The strictures passed by a Court do not amount to a finding within the meaning of s. 435 because a finding presupposes the trial of an issue.

My submission is that ends of justice do not require alteration of a judgment by the High Court.

K.N Dharap. The High Court has no power to expunge remarks from the judgment of the lower Court, because that will amount to asking the lower Court to write a judgment according to the view of the High Court. The High Court can only approve or disapprove of particular remarks, but it cannot order the lower Court to take out those remarks from its judgment.

M.P Amin, in reply. The power of expunction has been exercised by our Court in many cases. If you can sever a portion of the judgment without affecting the main judgment, that portion can be deleted. In other respects the original judgment stands and will form a part of the record. In a gross case the High Court must express complete disapproval of the remarks made by the lower Court and order that they should find no place in the record of the case. If the High Court has power to act under its inherent jurisdiction, it should not limit it to mere expression of opinion.

Chagla C.J—This is an application by the State of Bombay to expunge certain remarks made by the Sessions Judge, North Satara, when dealing with a bail application. The remarks that were made by the Sessions Judge were about the learned Magistrate before whom the criminal case was pending, and the question that has to be considered by this Full Bench is whether there is any jurisdiction in this Court to entertain this application. This application is neither an appeal nor a criminal revision application. No effective order has been passed by the Sessions Judge which can be complained of by any party, nor is there any finding given by the learned Sessions Judge which can be challenged in this Court, and the question that arises for our consideration is whether this Court has jurisdiction first to entertain an application which is neither an appeal nor a revision, and, if it has such jurisdiction, whether it has further the jurisdiction to expunge remarks from the judgment of the lower Court.

Turning to the Criminal Procedure Code, it is not disputed by the Advocate General that this application does not fall either under s. 435 or s. 439. Clearly the Court is not called upon to exercise its revisional jurisdiction, but what is urged upon us is that we should exercise the jurisdiction conferred upon us under s. 561-A of the Criminal Procedure Code. The Privy Council in two decisions in Emperor v. Nazir Ahmed,(11) and in Jairam Das v. Emperor(12) has taken the view that s. 561-A does not confer any new power upon the High Court. It merely safeguards all powers which already existed in the High Court Section 561A gives the power to 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. One possible view that can be taken of s. 561A is that if a proceeding is properly before this Court, then the High Court may pass any order which is not contemplated by the Criminal Procedure Code provided it is passed for the purpose mentioned in that section. To take such a view of our powers may in conceivable cases lead to irreparable harm being done and the High Court being put in a position where it could not give redress and do justice. Take a very familiar case of a lawyer or a stranger to the proceedings being unjustly and severely criticised by a Magistrate. Remarks may be made by him which may affect his reputation and he may require redress at the hands of the High Court. But if the view was that the High Court could only act under s. 561A provided a proper application was made to it, proper in the sense that it was contemplated by other sections of the Criminal Procedure Code, then such a lawyer or a stranger to the proceedings could get no redress at all from this Court because if he were to make an application to us he would be met with this answer that his application is neither an appeal nor a revision nor is it an application contemplated by the Criminal Procedure Code. Therefore, in our opinion, as s. 561A was enacted to emphasise the fact that the High Court has the widest jurisdiction to pass orders to secure the ends of justice, s. 561A must give the power to this Court to entertain applications which are not contemplated by the Criminal Procedure Code. Therefore if the High Court feels that ends of justice require that an order should be made in an application, although the application is not contemplated by the Code, the High Court will entertain the application and make the necessary orders to secure the ends of justice.

The other question that arises for our consideration is, assuming this application is maintainable and we have jurisdiction to entertain it, has the Court an inherent power to amend or alter the judgment of a lower Court. In this case the Sessions Judge has delivered a certain judgment. In that judgment he has passed strictures against the Magistrate. The State comes before us and asks us to alter or amend that judgment by deleting from it certain portions to which it takes exception or by expunging certain portions from that judgment. 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. It is difficult to understand how such an inherent power can possibly arise in a superior Court. 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 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. The Advocate General says that making observations about the judgment of a lower Court stands on a different footing from expunging the remarks from the judgment. The Advocate General says that in gross cases the High Court must exercise its power to expunge the remarks and not merely in its judgment pass strictures against the lower Court. 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. The English language is not lacking in proper vocabulary and the English language can be utilised by showing our displeasure in as strong terms as possible. In our opinion, therefore, it would not be correct to say that expunging remarks from a judgment or deleting passages from a judgment constitute's the inherent power of any superior Court and therefore the inherent power of the High Court.

In the light of what we have just said, it is necessary to look at certain judgments of our Court. This Full Bench was constituted because there was a conflict between judgments of a Division Bench and judgments delivered by other Division Benches of this Court. The judgment to which reference should first be made is the judgment in Rogers v. Shrinowas.(13) That is judgment of Sir John Beaumont, Chief Justice, and Mr. Justice Sen, and the view that the learned Chief Justice expresses in his judgment was that remarks can be expunged provided the matter comes befores this Court in an appeal or in revision. When we turn to the judgment of the learned Chief Justice, he points out at p. 479:

“In my opinion no Court can claim inherent power to alter the judgment of another Court.”

With respect, we agree with that observation, but then, having expressed this opinion, the learned Chief Justice takes the view that the Court has inherent jurisdiction to alter a judgment once the matter comes before it in appeal or revision. 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, as we have just pointed out, by an independent application made by the party under s. 561A. Then again at p. 480 the learned Chief Justice, being oppressed by the fact that in a particular case a party may go without any remedy, says: “If the Court thinks that any such action is called for, (viz. the action of expunging remarks), it can itself send for the record and act regularly in revision.” 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 appeal or revision. This Court can judicially correct any subordinate Judge in any applicationmade to it which it can entertain under s. 561A of the Code.

Now, this judgment was considered in an unreported judgment by Mr. Justice Weston and Mr. Justice Shah. That Bench took the view that the Court had jurisdiction to expunge the remarks from the judgment of a lower Court although the matter was not before them in appeal or revision. In fact, in that case the remarks were not expunged because on merits the Court came to the conclusion that the observations of the learned Magistrate were not objectionable. But the Bench referred to the judgment in Rogers v. Shrinivas(14) and pointed out, we think with respect correctly, that they did not find it easy to understand how if, as is said, 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 the learned Chief Justice later called regular revision. Therefore, in our opinion this judgment was correctly decided except that, as we have already pointed out, in entertaining an application under s. 561A what the High Court should do is not to expunge remarks but judicially to correct by its judgment the judgment of the lower Court.

Our attention has also been drawn by the Advocate General to certain unreported judgments of this Court and the judgment in State v. Gulani(15) where remarks were expunged, but we find on persuing the judgments that the question of Jurisdiction was not raised and was not considered.

Turning to the other High Courts, there is a judgment of the Lahore High Court in In the matter of Daly(16) and there is a judgment of the Madras High Court in In re Public Prosecutor,(17) and there is a judgment of the Allahabad High Court in Benerji v. Upendramal(18) and these High Courts have taken the view that they have jurisdiction to expunge remarks from the judgment of the lower Court. With respect to these High Courts, we think that the question as to whether there is inherent power to alter the judgment of another Court was not considered. If these High Courts meant by expunging the remarks that the High Court has the power judicially to correct a judgment of the lower Court, although no appeal is preferred against that judgment or there is no revision application against that judgment, we agree with the views of these High Courts.

Coming to the question of the exercise of the jurisdiction, I think it is necessary for us to point out that although we have the jurisdiction under s. 561A judicially to correct the judgment of the lower Court, this is a very exceptional jurisdiction which should be exercised in the most exceptional cases. 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 before them and that the High Court is likely to interfere with their opinions, the independence of the judiciary might be seriously undermined. A jurisdiction like this is intended to be exercised when remarks are made without any foundation whatsoever, when remarks are made against strangers which remarks may do irreparable harm to them and who have not even been heard in their defence by the Court which paws the remarks. This jurisdiction is not intended to substitute the opinion of the High Court for the opinion of the lower Court. A Judge, as we said before, however humble and however junior, is entitled to his own opinion with regard to matters that come before the Court. Judicial corrections should be restricted to cases where the decision is wrong or erroneous, but if the decision is right or if no decision is arrived at, then this Court should interfere under s. 561A in the most exceptional and the rarest of cases.

[Ed. Note.—The application was then considered on merits by a Division Bench consisting of Chagla C.J and Dixit J. and was ultimately rejected].

Orders accordingly.

M.W.P

State v. Nilkanth Shripad Bhave And Another

Structured Summary of the Opinion — Full Bench (Bombay High Court)

Factual and Procedural Background

Legal Issues Presented

Arguments of the Parties

M.P. Amin (for the State / supporting jurisdiction to expunge)

V.S. Desai (opposing the independent application to expunge)

K.N. Dharap (opposing expunction)

Advocate General (as recorded in the opinion)

Table of Precedents Cited

Court's Reasoning and Analysis

Holding and Implications

State v. Nilkanth Shripad Bhave And Another

Comments

We use cookies to improve your experience