Not Always Possible To Send Notice Before Making Adverse Remarks Against An Authority: Kerala High Court

The Kerala High Court while dismissing a case for expunging the adverse remarks made against a police officer, observed that such remarks were absolutely necessary to take an appropriate decision in that order. Justice A. Badharudeen said that in such a case, it will be difficult to issue notice to the officer before making such observation."...such a finding by the learned Special Judge was absolutely necessary for taking an appropriate decision of the discharge petition as an integral part thereof. Therefore, in such a case, it was difficult to issue notice to the Circle Inspector of Police before making observations."The Special Fast Track Court was deciding a discharge petition filed by a man accused under Section 447 (criminal trespass), 354-C (voyeurism), 324 (voluntarily causing hurt by dangerous weapon) of IPC and Section 15 of POCSO Act (punishment for storage of pornographic material involving child). The Court discharged the accused for offence under Section 201, 354C of IPC and Section 15 of POCSO Act.The Special Court in its discharge order noted that the accused and his mobile phone was handed over to the Inspector of Police of Manimala Circle on 05.11.2019. However, the Circle Inspector of Manimala Circle freed the accused and gave him his mobile phone back. The FIR was registered by the Sub Inspector of the station only on 20.11.2019, 15 days after the accused was given his phone back. In the meantime, the accused destroyed his mobile phone. Therefore, the phone could not be sent for forensic examination. If the phone could have been sent for forensic examination on 05.11.2019 itself, they would have got the best evidence to maintain the offence of voyeurism. The Special Court with these remarks directed a departmental action against the Inspector of Police, Manimala.Accordingly, department action was initiated against the officer and he was given charge and statement of allegation. The officer moved the High Court to remove the adverse remarks made against him in the order of the Special Court.He argued before the Court that he had only supervisory duty in that investigation and the remarks against him was made without affording him an opportunity to present his side.The Public Prosecutor argued that though no notice was served upon the petitioner, the remarks was made based on the materials available before the Court. The Prosecutor submitted that if the court was to send notice against a person against whom some adverse circumstances were found while passing judgments and orders, it will delay the pronouncement of the order/ judgment.The Supreme Court in Niranjan Patnaik v Sashibhushan Kar and another (1986) had held that harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to criticize on that conduct. The High Court also reiterated this position.“Harsh or disparaging remarks are not to be made against persons and authorities whose conduct comes into consideration before courts of law unless it is really necessary for the decision of the case, as an integral part thereof to animadvert on that conduct.”The High Court held that the observation made against the police officer was necessary for taking an appropriate decision on the discharge petition. The Court said that in such a case, it was difficult to issue notice to the officer before making the remarks.The Court further observed that the officer did not argue to establish that he did not release the accused or the phone was not returned to him. The Court said that therefore, there is no need to expunge those remarks. The Court also added that in such cases, hearing of the officer is not mandatory or possible. The Court held that there was nothing forthcoming to warrant expungement of those remarks. Further, the court observed that the decision in the disciplinary proceedings will be made only after hearing the petitioner.Accordingly, the court dismissed the petition.Counsel for the Petitioner: Adv. T. R. RajeshCounsel for the Respondents: Adv. Renjit George (Sr. PP)Case No: Crl.M.C. 3486 of 2022Case Title: Shaju Jose v State of KeralaCitation: 2024 LiveLaw (Ker) 754Click Here To Read/ Download Order

Not Always Possible To Send Notice Before Making Adverse Remarks Against An Authority: Kerala High Court

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