James, J.:— This Reference by the District Magistrate of Basti recommends the expunction of certain offensive remarks made against Sub-inspector Balram Ji Singh in a Judgment dated the 9th February, 1953 in a Sec. 109, Cr. P.C case by Sri S.B Lal, Sub-Divisional Magistrate of Basti.
2. It is necessary to emphasise that Sub-inspector Balram Ji Singh was never called as a witness in the case, not even by the Magistrate himself under the provisions of Sec. 540, Cr. P.C I agree that the jurisdiction given to this Court under Sec. 561A, Cr. P.C judicially to correct a judgment passed by a lower Court is a very exceptional jurisdiction and should be exercised in the most exceptional cases. As observed by Chagla, C.J in the recent Full Bench case of State of Bombay v. Nilkanth A.I.R 1954 Bom. 65.:—
“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.”
3. This Count is no less jealous in guarding the independence of the Magistrates and judges subordinate to it. Nevertheless there are three principles the violation of which it will not view with an approving eye: first, no person should be condemned without being heard; second, in making his criticism the Magistrate or judge should not travel outside the record; and third, the criticism should be made with sobriety and a due sense of responsibility. Where therefore a breach of these principles has been discovered this Court has not hesitated to express its displeasure by making an appropriate correction in the subordinate Court's judgment.
4. In the instant case I note with regret that Sri S.B Lal has violated these principles. His fire was apparently aroused by a site-plan prepared by Sub-inspector Balram Ji Singh, and all the strictures he had passed on the latter have resulted from this. Yet before embarking on his criticism the learned Magistrate did not even attempt to summon the sub-inspector before him—he had ample power to do so under Sec. 540, Cr. P.C—and to give him a chance of explaining whatever defects had been found in the site plan. The sub-inspector has therefore been condemned unheard. I express my disapprobation of this.
5. Sri S.B Lal has also gone out of the record in passing strictures. At one plaice in his judgment he has accused the sub-inspector of being a “raw, unexperienced (sic) and highly incompetent police sub-inspector.” At another he has observed (the language is his own):—
“In the previous many cases I found that fit is a part and parcel of his habit not to date the site plan nor to show the place of arrest of the accused.”
6. At a third place he has remarked:—
“It is a pitty indeed that such police would get promotion who are a great slur on the police administration. Such officers can never inspire confidence in the public as they always prove negligent in the discharge of their duties.”
7. Whatever impression Sri S.B Lal might have had of the work of this sub-inspector in other, cases, in the present case there was nothing on the record to justify the aforementioned offensive remarks. The Magistrate was not en-tided to draw upon his previous experiences or impressions. Nor could he generalise in the manner that he has done. Indeed, his disapproval of the promotion of Sub-inspector Balram Ji Singh—he had evidently been promoted to the post of Inspector of Police—is tantamount to criticism of the higher police authorities, something which lay outside the province of the Magistrate. In making the remark concerning lack of public confidence the Magistrate forgot that the boot was on the other leg, for it is Courts which are lacking in dignity and sobriety that fail to command public respect and confidence.
8. The objectionable remarks quoted above were made by Sri S.B Lal in a patently irresponsible manner and were obviously actuated by personal prejudices entertained by him. This is unpardonable in the Presiding Officer of a court. He may delude himself into thinking—as suggested by him in his explanation—that strictures would improve the future standard of police work. But this is not so; they can only help to widen the gulf between him and those police officers whose duty it is to work under him. This is an eminently fit case where this Court should use its special powers under Sec. 561A, Cr. P.C and expunge the offencive remarks quoted above. This is accordingly ordered.
9. Let a copy of this judgment be sent to the Chief Secretary, U.P Government, for information and such action as he deems fit.