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Panchanan Banerji v. Upendra Nath Bhattacharji
Factual and Procedural Background
An application was made to the High Court seeking two remedies: (1) that the acquittal of the accused by the Sessions Judge be set aside, and (2) that certain passages in the Sessions Judge's judgment which were adverse to the complainant's character be expunged. The Sessions Judge had acquitted the accused after finding the matter troublesome, noting evidence suggesting a partnership between the accused and the complainant, the absence of a police report, and concluding the dispute was essentially for the civil courts. The High Court was asked to revisit both the acquittal and parts of the judgment's language.
Legal Issues Presented
- Whether the High Court should set aside the Sessions Judge's acquittal.
- Whether the High Court has jurisdiction to expunge passages from the judgment of a lower court that adversely affect a party's character.
- The scope and application of section 561A of the Code of Criminal Procedure and the High Court's inherent power to delete objectionable remarks in judgments.
Arguments of the Parties
Applicant's Arguments
- The acquittal by the Sessions Judge should be set aside.
- Certain passages in the Sessions Judge's judgment that are adverse to the complainant's character should be expunged.
Government Advocate's Arguments
- The High Court has no jurisdiction to expunge portions of the appellate court's judgment; such power is not expressly conferred by the Code of Criminal Procedure.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Emperor v. Thomas Pellako | Held that High Court jurisdiction to expunge objectionable passages existed (Burma Chief Court view). | Noted as one of the authorities expressing that such jurisdiction existed under the old Code; part of a conflicting body of authority. |
| Ma Kya v. Kin Lat Gyi | Held that High Court jurisdiction to expunge objectionable passages existed (Burma Chief Court view). | Noted alongside Thomas Pellako as supporting the existence of such jurisdiction under earlier decisions. |
| Emperor v. Lachhu Lindsay | Judicial officer held he had jurisdiction and ordered certain remarks in lower courts' judgments to be expunged. | Recorded as an authority where expunction was ordered; part of the historical conflict of views on the power. |
| Emperor v. C. Dunn | Held High Court power was to amend an effective order of the court below, not to expunge passages; expressed that legislative action would be needed if further protection were required. | Noted as an authority denying power to expunge passages and as part of the conflicting opinions under the old Code; the court cited its concluding remark that, as law stood, they had no authority. |
| Mohammad Qasam v. Anwar Khan | Recognized under section 561A an inherent power of the High Court to delete objectionable remarks against witnesses or accused persons, but only where there is no foundation for the remark. | Relied upon to support that section 561A confers a limited inherent power to expunge wholly unfounded remarks; applied to the present case to permit deletion where no evidence justified the language. |
Court's Reasoning and Analysis
The Court first acknowledged that although the High Court has jurisdiction to set aside an acquittal, that power is to be exercised only in rare and exceptional cases. It reviewed the Sessions Judge's findings: the judge found the case troublesome, observed evidence suggestive of a partnership between the parties, noted the absence of a police report, and concluded the dispute was more appropriate for civil adjudication. The High Court held that the inferences drawn by the Sessions Judge from letters and oral evidence were matters of fact and not perverse or plainly wrong; accordingly, the Court refused to set aside the acquittal.
On expunction, the Court considered the Government Advocate's contention that no express statutory power exists to cut out portions of an appellate court's judgment. The Court reviewed conflicting authorities under the old Code—some recognizing expunction power and others denying it—and then turned to section 561A of the new Code, which preserves the High Court's inherent powers to prevent abuse of process and secure the ends of justice. The Court concluded that this inherent power reasonably includes the power to delete passages that are irrelevant or inadmissible and that adversely affect a person's character. The Court emphasized the limitation drawn from Mohammad Qasam v. Anwar Khan: deletion is appropriate only where there is no foundation whatsoever for the remark, and not where the remark is an inference from evidence. The Court examined the specific passage sought to be expunged, found no evidentiary basis for the language used, and ordered those words to be expunged. The remainder of the applicant's relief was denied.
Holding and Implications
Core Ruling: The application to set aside the acquittal is denied; the Court ordered that the specific words objected to in the Sessions Judge's judgment be expunged.
Consequences: The acquittal by the Sessions Judge remains in force for the accused. The specified objectionable language in the Sessions Judge's judgment is expunged because the Court found no evidentiary foundation for it. No broader precedent beyond the Court's application of section 561A and the limitation articulated in Mohammad Qasam v. Anwar Khan is declared in this opinion.
Sulaiman, J.:— This is an application praying that the acquittal of the accused by the Sessions Judge should be set aside and that certain passages in the judgement, which are against the complainant's character, should be expunged.
Although the High Court has undoubtedly jurisdiction to set aside an order of acquittal, that power is exercised in rare and exceptional cases. In this case the learned Sessions Judge has come to the conclusion that the case was a very troublesome and difficult one, and that there was the evidence of one of the prosecution witnesses of a partnership between the accused and the complainant and as no report was made to the police, the Judge was not satisfied that the accused was bound by any contract to dispose of the articles entrusted to him as declared by the complainant. He is of opinion that the dispute is really a lit one for the civil courts. The inference drawn by the Judge from a number of letters and the oral evidence is an inference of fact and it is impossible to say that his conclusion is perverse or even wrong. I cannot, therefore, accede to the prayer for setting aside the acquittal.
As regards the question of expunction, the learned Government Advocate has urged before me that this Court has no jurisdiction to make any such order and cut out the portions from the judgement of the appellate court. In the Code of Criminal Procedure such power is not conferred in express terms. The question is whether it is within the inherent jurisdiction of the High Court to make such an order. Under the old Code there was some conflict of opinion. The Burma Chief Court had in two cases, Emperor v. Thomas Pellako and Ma Kya v. Kin Lat Gyi expressed the view that such jurisdiction existed.
In Emperor v. Lachhu Lindsay, J.C sitting in the Oudh Judicial Commissioner's Court, distinctly held that he had such jurisdiction and ordered certain remarks in the judgements of the courts below against a counsel who had appeared in the case to be expunged from the record. On the other hand, Gokul Prasad and Stuart, JJ., in the case of Emperor v. C. Dunn, held that the High Court had power to make an amendment of an effective order of the court below, and not that of expunging passages which do not commend themselves to it. At the end of the judgement they, however, remarked:—
“If it be held that the grievances of persons, who are unjustly criticized by courts of law in circumstances which obviate the effective orders of the courts coming before Superior Courts in appeal or revision, are so great as to require a special enactment for their protection, the matter is one for the consideration of the Legislature, but as the law stands, we are satisfied that we have no authority.”
In the new Code, section 561A has been added and it says:—
“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.”
Had it been permissible to refer to the statement of the objects and reasons, the intention of the Legislature would have been at once clear. Courts, however, cannot take into account the view of a select committee. But the section emphasizes the wide inherent power which a High Court possesses to “prevent abuse of the process of any court or otherwise to secure the ends of justice.” I see no 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. The High Court as the Supreme Court of revision must be deemed to have power to see that courts below do not unjustly; and without any lawful excuse take away the character of a party or of a witness or of a counsel before it. Shadi Lal, C.J, in the case of Mohammad Qasam v. Anwar Khan recognized that under section 561A there is an inherent power of the High Court to delete objectionable remarks against witnesses or accused persons. Such jurisdiction, however, can only be exercised when there is no foundation whatsoever for the remark objected to and not where it is a matter of inference from evidence.
[Here His Lordship referred to the passage in the judgement which was sought to be expunged and held that there was no evidence to justify the language employed in the judgement.]
I accordingly order that the words which are objected to should be expunged from the judgement of the Sessions Judge. The other prayer asked for in the application is not granted.
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