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Criminal Revision No. 196 of 1960, decided on 29th June 1960.
Ss. 195(1)(c) & 561‑A‑Protection of S. 195 not to be extended to person not party to proceedings‑ Pendency of proceedings under S. 195(1)(c) in Court against a person does not affect his application for expunction of remarks under S. 561‑A before High Court.
‑Objectionable remarks in judg ment against person not party nor witness in criminal case‑Remarks amounting to finding‑Held, Court was at liberty to examine person concerned but not to condemn unheated‑Remarks expunged.
Malik Firoz Khan Noon v. State P L D 1958 S C (Pak.) 333 fol.
(c) Inherent powers‑
Persons asking to exercise‑Not guilty of laches: (Obiter).
Hamidul Haq Chowdhury and S. K. Sen for Petitioner.
Md. T. H. Khan for Opposite‑Parties.
This is an application under section 561‑A of the Code of Criminal Procedure for expunction of certain objection able remarks from .the judgment of the 2nd Additional Sessions Judge, Dacca, passed in Criminal Appeal No. 115 of 1959.
This Criminal Appeal arose out of the conviction of two accused persons by a Magistrate of the 1st Class at Narayanganj, under section 420 of the Pakistan Penal Code.
2. The accused who were employees of a company called the "Pak Flotilla Company," it was alleged, had induced some of the other employees of the said company to deposit Rs. 2 per month in a Savings Bank of which one of the accused in the said case was represented to be the Secretary and the other, the Cashier, and which it was said would be opened soon for the employees of the said company. This, it is further alleged, was done with a view to misappropriating the amounts so deposited.
3. The defence of the accused in the said case appears to have been that the Savings Bank Scheme was a scheme which had been introduced by a unanimous resolution of the Union of the labourers of the said company which had been formed with the Chief Engineer of the company, a German National called Mr. Schmidth, as President. They denied that there was any inducement or cheating of any labourer, and maintained that the case against them had been started really by the company itself, and, in fact, had been separated from another case under various sections of the Penal Code, which had been started against seve ral of the other workers including the present accused and the said Chief Engineer who had been dismissed by the company.
4. The trial Court, after considering the evidence of eleven prosecution witnesses, and two defence witnesses, found the said two accused persons guilty under section 420 of the Pakistan Penal Code, convicted them of the aforesaid charge and sentenced them to suffer rigorous imprisonment for six months each.
5. The Court of appeal, however, found the charge defec tive, the judgment written by the learned Magistrate not in accord ance with the law, and the prosecution started without any com plaint by any person alleged to have been cheated. The learned Additional Sessions Judge was also of the view that the evidence did not disclose the initial intention to deceive, and, therefore, acquitted the accused persons.
6. It is necessary also to mention here that .in coming to these findings the Court below took the view that Ex'‑s. 1 and 2 which formed the basis of the case, were got up papers manu factured for the purposes of the said case. Exh. 1 was a letter written to the Officer‑in‑charge of the Narayanganj Police Station by the Director of the Pak Flotilla Company on the 14th November, 1957, and it enclosed a petition, dated the 14th of October, 1957, purporting to have been submitted by some of the employees of the said Company, making certain allegations against the accused persons, which, according to the prosecution; formed the basis of the case. The Court of appeal below then went on to give its reasons for holding that these two documents were fabricated documents manufactured for the purposes of this case, and came to the finding that on the evidence on the record these documents were not treated by the Investigating Officer or the Thana Officer at Narayanganj Police Station as either a written ejahar or a first information report but that a first information report was subsequently drawn up on the 16th of. December 1957. That, however, was with regard to another incident which took place on the 10th of December, 1957.
7. The learned Judge reiterated in more than one place in his judgment his observation that the documents were fabricated documents and were, in fact, anti‑dated and ultimately remarked:
"These very facts show that the Pak Flotilla Company was up and doing to secure a punishment against the two accused at any cost, even by manufacturing documents like, Exhs. 1 and 2."
8. The present petitioner who is a Director of the said Pak Flotilla Company now prays that as neither the company nor the Directors of the company were either parties of the said criminal proceedings or examined as witnesses in the said case, these remarks should be expunged. The passages of which the expunction is so prayed for, are three in number, and we quote them from the prayer portion of the petition itself:
"(1) The two documents clearly show that these are got up papers manufactured for the purpose of this case.
(2) I have no hesitation to hold that these two documents were manufactured for the purpose of this case.
(3) These very facts show that Pak Flotilla Company was up and doing to secure punishment against the two accused at any cost even by manufacturing documents like Exhs. 1 and 2‑"
9. The petitioner claims that in these circumstances these passages impute at any rate improper conduct to the Director of the said Pak Flotilla Company, and constitute a constant source of uneasiness and irritation. It is further alleged that this is not merely a fiction of the imagination of the petitioner before us, for an application has already been filed before the learned Additional Sessions Judge praying that a complaint be made for prosecuting the present petitioner under sections 195, 465 and 471 of the Penal Code notwithstanding that a Rule issued by this Court against the order of acquittal of the accused persons has been disposed of on the basis of a compromise petition signed jointly by the learned Advocates of the complainants in the said case and the said accused persons stating that their differences bad been composed.
10. This matter came up before our learned brother Asir, J., but as he bad doubts as to whether in law the present application could be proceeded with in view of the pendency of the proceed ings in the Court of the learned Additional Sessions Judge for lodging a complaint under section 195(c) of the Code of Criminal Procedure, he directed that this matter be placed before the Chief Justice for being heard by a larger Bench. It is under the orders of the Chief Justice that the matter has now been placed before us.
11. The learned Advocate appearing in support of this Rule has contended that our learned brother was unnecessarily dis turbed by the proceedings pending in the Court below, for the said proceeding can in no way be affected by any decision that arrived at in the present application. It is pointed out that section 195 merely prohibits the Court from taking cognizance of an offence specified in subsection (I), clause (c) thereof "when such offence is alleged to have been committed by a party to any proceeding in any Court." In the present case since it is clear that neither the Pak Flotilla Company nor any of its Directors, nor the present Director‑petitioner was a party to the criminal case which was heard on appeal by the learned Additional Sessions Judge, the provisions of the said section 195 were in no way attracted, so far as he was concerned, because, there was no neces sity of obtaining any complaint from any Court for prosecution of the said petitioner. If there was any case against the present petitioner, it was open to the person who considered that he should be prosecuted, to lodge a complaint before a competent criminal Court, which could take cognizance of a criminal case. The learned Additional Sessions Judge was not such a Court. If such a complaint is lodged, the law would take its course. There would be no question at all of the present petitioner getting any advantage by reason of the expunction of the remarks now complained of.
12. We are in entire agreement with the learned Advocate and have no manner of doubt that the pendency of the proceed ing under clause (c) of subsection (1) of section 195 of the said Code in no way affects the disposal of the application which is now before us.
13. The application pending in the Court of the learned Additional Sessions Judge will be disposed of by him in accord ance with law and if he is satisfied that any party to the proceeding before him has committed any of the offences mentioned in the said section with respect to any document produced or given in evidence in such proceeding, he will be entirely free to make the complaint.
14. We may, however, state that in our view in a criminal proceeding, strictly speaking. only the State and the accused are parties, and, therefore, we do not feel the necessity of extending the protection afforded by section 195 to any other person. Section 195 was designed to prevent improper or reckless, prosecu tions by private person for offences connected with the adminis tration of public justice. It is, therefore, in the nature of a protection to parties and witnesses against vexatious or frivolous prosecution. Hence, this prosecution should not, in our view, be extended to any person unless he can bring himself strictly under the rule, for under the general law any person knowing of the commission of any cognizable offence may set the law in motion against any other person merely by a complaint before a com petent Magistrate.
15. The learned Advocate appearing to oppose this Rule, however, sought to argue that a party within the meaning of this section should also include a person who, by his conduct and interest taken in the proceedings, places himself in the position of a party. No decision was, of course, cited before us in support of this view. But, for the reasons we have already given, we do not see any justification for extending the meaning of a party' in such a manner. To accede to the contention of the learned Advocate would result, in our view, in stopping many prosecutions, which could otherwise be launched in accordance with the general law of the land simply by lodging a complaint in a competent Court or by lodging a first information report with a Police Officer.
16. The next contention advanced on behalf of the peti tioner is that the impugned observations in the judgment of the learned Additional Sessions Judge were wholly unnecessary for the decision of the said case, and do not in any way from such an integral part of the judgment as to be incapable of separation from the relevant portions thereof or to affect its validity in any manner. In support of his contention strong reliance is placed on a decision of the Supreme Court in the case of Malik Firoz Khan Noon v. The State (P L D 1958 S C (Pak.) 333). In the said case their Lordships of the Supreme Court in no uncertain terms indicated that:
"In all cases which have come before the Courts where an aggrieved person asks for expunction of objectionable remarks made against him in a judgment, one point has consistently been emphasized, namely, that a Judge ought not to make any disparaging remarks against a person who is neither a party nor a witness to the case."
The reason for this rule given by his Lordship the Chief Justice may also be quoted here:
"It is again a rule, as ancient as the law itself and based on commonsense and fair-play, that when a Judge decides to condemn a man, whether a party or witness, the facts on which condemnation is intended to be based must be put to him so as to give him an opportunity to explain the condemnatory facts and thus to remove the Judge's suspicion about his conduct. A Judge who condemns a man unheard acts as unfairly as if he were to convict a man without hearing him in his defence. Persons who are attributed ignominious or improper conduct in judicial determinations, though they were neither parties nor witnesses in the case, have, therefore, a just cause for complaint against this unfair treatment, and the law reports are full of precedents where in the circumstances mentioned High Courts expunged the offending remarks."
17. Applying these principles in the present case, it seems to us that so far, at any rate, as the last remark quoted above which almost amounts to a finding that the Pak Flotilla Company had manufactured the documents, Exhs. 1 and 2 must, in our opinion, be expunged, for neither the Pak Flotilla Company nor any Director of the Pak Flotilla Company was either. a party to C the proceeding before the learned Judge nor a witness in the case. If the learned Judge had any reason to think that any of the Directors of the Pak Flotilla Company was really the person at the back of the prosecution launched, there was nothing, in our view, to prevent the Court from examining the said person and giving him an opportunity to explain his position. Without doing so, the learned Additional Sessions Judge should not, in our opinion, have indulged in condemning such person unheard.
18. So far as this last quoted passage is concerned, it also appears to us that it was wholly unnecessary and irrelevant for the decision of this case. If the learned Judge was of the view that upon the evidence the documents, namely, Exhs. 1 and 2 had not been established to be genuine documents, it was sufficient for him to hold that these documents were not genuine, and, there fore, did not establish the case against the accused persons. It was not for him at that stage to decide as to who had or had not manufactured those documents for those persons were not being prosecuted before him. This passage does not also in our opinion, from any integral portion of the judgment itself. For the reasons we have given above, we consider it to be wholly redundant.
19. So far as the first two passages are concerned, we are not satisfied that those passages impute any improper conduct to any one or that they were not necessary for the decision of the case, and, therefore, we make no order for the expunction of the said two passages.
20. It remains now only to notice the two arguments advanced by the learned Advocate appearing to oppose this appli cation. The first is one to which we have already adverted earlier during our discussion of the first point, namely, in so far as certain suggestions were put to some of the prosecution witnesses in the case, and they appeared to have admitted that they filed no com plaint in the case before any one. I he alleged petition of com plaint, Exh. 2 was not a genuine document, and had been fabricated and if fabricated, fabricated by the person who purported to send it to the Police by his covering letter, Exh. 1. These facts, even if assumed to be correct, only disclose that perhaps, the writer of the letter was taking an undue interest in the prosecution, but would not, in our opinion, even so amount to making that person a party to the proceeding. In the circum stances, we are unable to agree with the learned Advocate that this circumstance was enough to bring him within the category of a party.
21. The learned Advocate also drew our attention to cer tain allegations in his counter‑affidavit to the effect that the Director concerned was actually present in Court instructing the retained lawyer of the company during the prosecution, and further that it was the retained lawyer of the company who con ducted the prosecution with .the help of the Assistant Public Prosecutor. This also does not, in our opinion make him a party to the proceeding.
22. The learned Advocate next argued that since the peti tioner was asking for the exercise of the inherent jurisdiction of this Court, it was incumbent upon him to come to the Court with as much expedition as possible and since in the present case he had not done so, the discretion of the Court should not be exer cised in his favour. It is pointed out that, even on his own admis sion in his petition he came to know of the judgment of the learned Additional Sessions Judge in November,. 1959, but he did not move this application until March, 1960. Hence, it should be held that the application was unduiy delayed and relief refused. There is no specific period of limitation prescribed for such appli cations. But it is no doubt true that the persons asking this Court to exercise its inherent jurisdiction, should not be guilty of laches. In the present case, however, we do not consider that there has been such undue delay as would entitle us to say that the party has disentitled himself to the relief that he now seeks.
23. This morning when we were about to deliver judgment the learned Advocate appearing to oppose this application again, with our permission, drew our attention to the language of section 561‑A, and in particular to the words "to prevent abuse of process of this Court". Obviously to impress upon us that unless we are satisfied that it amounts to an abuse of the process of the Court, we should not interfere in this matter. But he overlooked the concluding words of the section, namely, "or otherwise to secure the ends of the justice". In the present case, we feel that the ends of justice are of such a compelling nature that they might legitimately impel us to interfere in the present matter, for the principle that no one should be condemned unheard, is such a fundamental principle of law that its violation is naturally abhor rent to Court of justice and compels it to correct it.
24. For the reasons given above, we make this Rule absolute, and direct that the remark appearing at page 20 of the certified copy of the judgment of the learned Additional Sessions Judge to the effect that:
"These very facts show that the Pak Flotilla Company was up and doing to secure punishment against the two accused at any costs, even by manufacturing documents like Exhs. 1 and 2," be expunged from the said judgment.
SIDDIKY, J.--‑I agree.
S. B./A. H.
Rule made absolute.
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