SEEMANT KUMAR SINGH versus MAHESH PS & ORS. on 21 March 2023

SEEMANT KUMAR SINGH

v.

MAHESH PS & ORS.

(Criminal Appeal No. 872 of 2023)

MARCH 21, 2023

[KRISHNA MURARI ANDAHSANUDDIN AMANULLAH, JJ.]

Bail – Adverse remarks – Expunction of – During thependency of bail proceedings of respondent no.1, the High Courtmade adverse remarks against the appellants, who had no lis in theproceedings – Further, the High Court issued direction for seekingreports against appellant no.2 during the bail proceedings – Onappeal, held – Remarks made by High Court against appellant no.2are unreasonable and without justification as appellant no.2 hasno personal involvement in the case – No evidence against appellantno.2 has been analysed and no opportunity has been given to himto explain himself – Also, appellant no.3 is not a party to the bailproceedings, it was unreasonable to pass adverse remarks – Further,the direction issued by the high Court to seek reports against theappellant no.2 during bail proceedings of respondent no .1 is liableto be set aside as no opportunity of hearing was given to appellantno .2 and the High Court must have confined itself to the issuesrelevant to it for the purposes of deciding the bail of respondentno.1 – Adverse remarks passed by the High Court against theappellants expunged and order of High Court quashed.

Allowing the appeals, the Court

HELD:1. As far as the Appellant No.2 is concerned, theremarks made by the High Court against him seem to beunreasonable and without justification. The Appellant No.2 ismerely a government employee of the department that isconducting the investigation and has no personal involvementwith the case. The Appellant No. 2 is not an accused and hasnothing to do with the transaction of the crime, let alone the bailproceedings. No evidence against him has been analyzed by thecourt and no opportunity has been given to him to explain himself,however, scathing and egregious remarks have still been passed

A

B

C

DE

F

GH

Aagainst him. In such a scenario, this Court finds that the remarkspassed by the High Court to be unfair and not in the interest ofjustice. [Para 18][594-A-B]

2. In so far as the Appellant No. 3 is concerned, even thoughhe is an accused in the alleged crime, however, what must not beBforgotten is the fact that he does not have any lis in the bailproceedings, as the same was exclusive to Respondent No.1. Insuch a scenario, where Appellant No.3 was not party to theongoing bail proceedings, this Court finds it to be extremelyunreasonable for the High Court to pass such adverse remarksagainst him. When no allegations were made against AppellantCNo.3, and the presumption of innocence is still functional in thefavor of the Appellant No.3, this Court finds it to be a gross abuseof the process of law to pass such adverse remarks against him,as such remarks do not just cause injury to his reputation, butalso has the potential to cause great prejudice to his actual trial.D[Paras 19, 20][594-C-F]

3. The High Court during the bail proceedings of a thirdparty are manifestly arbitrary and unjust, and the High Court musthave confined itself to the issues relevant to it for the purposesof deciding the bail of the Respondent No.1. A court of bail,Eespecially in cases where the bail is sought for by a third party, isnot a court that has all the relevant information to pass an orderon the merits of an unconnected party, and such an order, ifpassed, has the potential to cause great harm to the said partywithout them being afforded an actual and meaningful opportunityto defend themselves. It is a well settled principle of law that anyFparty, when being accused of an illegal act, must be given anopportunity be fairly heard. This opportunity to be meaningfullyheard however has not been afforded to the Appellant No.2. [Para25][596-E-G]

Niranjan Patnaik v. Sashibhusan Kar (1986) 2 SCCG569 : [1986] 2 SCR 470; State of M.P. v. Nandlal Jaiswal(1986) 4 SCC 566 : [1987] 1 SCR 1; ElectionCommission of India v. M. R. Vijaybhaskar (2021) 9SCC 770; RBI v. Cooperative Bank Deposit A/C HR.Sha (2010) 15 SCC 85 : [2010] 9 SCR 1107; StateHRepresented by Inspector of Police v. M. Murugesan &

Anr. (2020) 15 SCC 251 : [2020] 2 SCR 553; State ofPunjab v. Davinder Pal Singh Bhullar and Others(2011) 14 SCC 770 : [2011] 15 SCR 540 – relied on.

A

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.872 of 2023.

From the Judgment and Order dated 07.07.2022 of the High Courtof Karnataka at Bengaluru in CRLP No. 4909 of 2022.

D

With

Criminal Appeal Nos. 873 and 874 of 2023.

Nikhil Goel, A.A.G., Ranjit Kumar, Amit Kumar, Sr. Advs., AvijitMani Tripathi, Shaurya Sahay, Mrs. Rekha Bakshi, Shubhranshu Padhi,Vishal Banshal, Ms. Rajeshwari Shankar, Niroop Sukrithy, Ovias Moh.,Ms. Anand Sanjay M. Nuli, Suraj Kaushik, Dharm Singh, S. ShivaSwaroop, M/s. Nuli & Nuli, Advs. for the Appellant.

E

K.M. Nataraj, ASG, Raghavendra S. Srivatsa, VenkitaSubramoniam T. R., Likhi Chand Bonsle, Ms. Komal Mundhar, Advs.for the Respondents.

F

The Judgment of the Court was delivered by KRISHNA MURARI, J.

Leave granted.

2. The present three Appeals are directed against the interim orderdated 07.07.2022 passed by the High Court of Karnataka at Bengaluru,(hereinafter referred to as “High Court”) in Criminal Petition No. 4909of 2022, whereby adverse remarks were made by the Ld. Single Judgeof the High Court against the Appellants, and a direction was issued tothe CBI, mandating them to investigate the past records of one of theAppellants.

G

H

A3. The Appellant in SLP (CRL.) No. 6253 of 2022 (hereinafterreferred to as Appellant No. 1), is the State of Karnataka and theAppellant in SLP No. 6572 of 2022, one Mr. Seemant Kumar (hereinafterreferred to as Appellant No. 2), is a senior IPS officer with 26 years ofservice, and is currently the Additional Director General of Police, Anti-Corruption Bureau. The Appellant in SLP (Crl) 6573 of 2022, one Mr. J.BManjunath (hereinafter referred to as Appellant No. 3), is the DistrictCollector for the city of Bangalore. The Respondent Mahesh PS(hereinafter referred to as Respondent No.1) .

4. Briefly, the facts relevant for the present appeals are that duringthe pendency of bail proceedings of Respondent No.1, who is a policeCofficer alleged to have taken a bribe, the High Court vide impugnedinterim order dated 07.07.2022 made adverse remarks against theAppellants, who had no lis in the above-mentioned bail proceedings.

5. On 20.05.2022, an FIR was registered under Section 7(a) ofthe Prevention Of Corruption Act against the Respondent No.1 herein,Dfor allegedly demanding a bribe from the informant. The respondentno.1 was subsequently taken into custody.

6. The respondent No.1 then filed a bail application under Section439 Cr.PC in the High Court. Notice was issued by the High Court inthe said case, and on 22.06.2022, during the bail proceedings, the HighECourt issued an oral summons against the Appellants herein seekingtheir appearance in court. It is important to note that the Appellant 1 andAppellant 2 are not arraigned as accused persons in the said case andhave no connection with the bail proceedings.

7. During the same bail proceedings, on 04.07.2022, the High CourtFmade adverse remarks against the Appellants herein. These remarksmade by the High Court were widely reported in the media and causedinjury to the reputation of the Appellants.

8. Subsequently, on 07.07.2022, the High Court while makingfurther adverse remarks against the Appellants, also directed the CBI toGplace a report of the past investigations conducted against the AppellantNo. 2, without giving an opportunity to the Appellant No.2 to be heard.

9. It is however important to note that Appellant No.3 stands on aslightly different footing from the other Appellants, in so far as that theAppellant No.3, after the initial investigation, was arrayed as an AccusedHin the abovementioned case. In the same breath however, it must also be kept in mind that the Appellant No.3, even though is an accused in thesaid alleged crime, was not a party to the abovementioned bailproceedings in the High Court.

10. Through the present Appeals filed before this court, theAppellants seek for the remarks made by the High Court against themto be expunged.

QUESTIONS PERTAINING TO THE PRESENTAPPEALS

11. At the very outset, we would like to clarify that in the presentappeals, we are only concerned with the adverse remarks made by theHigh Court against the appellants and the subsequent directions issuedto the counsel of CBI against the Appellant No.2. The substantive prayerfor bail sought for by the respondent No.1 is not being entertained bythis court at the present, and the proceedings for the same are ongoingin the High Court.

12. In the aftermath of the aforesaid proceedings, this court isnow tasked with answering two questions in the present Appeals.

I.Whether the adverse remarks made by the High Courtagainst the appellants during the bail proceedings of therespondent No. 1 is liable to be expunged?

II. Whether the direction issued by the High Court to seekfor reports against the Appellant No.2 during the bailproceedings of the respondent no.1 is liable to be setaside?

ANALYSIS

ISSUE I-Whether the adverse remarks made by the HighCourt during the bail proceedings of the respondent No.1 isliable to be expunged?

13. The High Court, on 04.07.2022 and 07.07.2022, on two separateoccasions, during the bail proceedings of the Respondent No.1, madeadverse remarks against the Appellants herein, which is said to havecaused great harm to their reputation. Due to the proceedings beingbroadcasted on the High Court’s YouTube channel, the said commentshave received wide publicity, and several media and news outlets havepicked up on those comments and reported the same.

A

B

C

D

E

F

G

H

A14. It is to be noted that bail proceedings, unlike a full criminaltrial, are burdened with the task of only forming a prima facie view onthe merits of the case. In such a circumstance when the evidence is notfully analyzed, and a presumption of innocence is still operational in favourof the accused, the courts must then be extremely cautious in passingadverse remarks against the accused. This becomes especially importantBin cases where the party against whom the remarks are passed do nothave a lis in the said proceedings, for such comments, especially if passedby constitutional courts, can cause great injury to the reputation of theparties at the receiving end of such remarks. This burden of caution onthe courts has been held in a catena of judgments by this Court.C[[1]]

A

15. In the case of Niranjan Patnaik v. Sashibhusan Kar[[1]], thisCourt, while examining certain remarks made by a High Court statedthat the courts, while passing adverse remarks, must be extremely carefuland must resort to passing such remarks only if it is necessary to cometo fair conclusion in order to meet the ends of justice. The relevantDparagraph of the said judgment is being extracted herein:

“In expressing their opinions, Judges and Magistrates mustbe guided by consideration of justice, fair play and restraint,(…) the judges should not normally depart from sobriety,moderation and reserve and harsh or disparaging remarksEare not to be made against the parties or authorities unless itis really necessary for the decision of the case asintegral part thereof”

16. In the case of State of M.P. v. Nandlal Jaiswal[2], whereinthis court was examining certain disparaging remarks made by the HighFCourt against the State officials held that judges, must refrain from passingadverse remarks, as the same can cause great mischief and might becomean antithesis to the ends of achieving justice. The relevant observationsfrom the aforesaid judgment is being reproduced herein:

“We may observe in conclusion that Judges should not useGstrong and carping language while criticising the conduct ofparties or their witnesses. They must act with sobriety,moderation and restraint. They must have the humility torecognise that they are not infallible and any harsh and 1 (1986) 2 SCC 569H2 (1986) 4 SCC 566

disparaging strictures passed by them against any party maybe mistaken and unjustified and if so, they may doconsiderable harm and mischief and result in injustice. Here,in the present case, the observations made and stricturespassed by B.M. Lal, J. were totally unjustified andunwarranted and they ought not to have been made.

17. Further, In the case of Election Commission of India v. M.R.Vijaybhaskar[3], while examining certain adverse remarks made by theHigh Court, held that judges must exercise extreme caution while passingremarks in court that may susceptible to misinterpretation. The relevantparagraph of the judgment is being produced hereunder:

“Having said that, we must emphasise the need for Judges toexercise caution in off-the-cuff remarks in open court, whichmay be susceptible to misinterpretation. Language, both onthe Bench and in judgments, must comport with judicialpropriety. Language is an important instrument of a judicialprocess which is sensitive to constitutional values. Judiciallanguage is a window to a conscience sensitive toconstitutional ethos. Bereft of its understated balance,language risks losing its symbolism as a protector of humandignity. The power of judicial review is entrusted to the HighCourts under the Constitution. So high is its pedestal that itconstitutes a part of the basic features of the Constitution.Yet responsibility bears a direct co-relationship with the natureand dimensions of the entrustment of power. A degree ofcaution and circumspection by the High Court would haveallayed a grievance of the nature that has been urged in thepresent case. All that needs to be clarified is that the oralobservations during the course of the hearing have passedwith the moment and do not constitute a part of the record.The EC has a track record of being an independentconstitutional body which shoulders a significant burden inensuring the sanctity of electoral democracy. We hope thematter can rest with a sense of balance which we haveattempted to bring.”

18. In light of the aforesaid decisions, as far as the AppellantNo.2 is concerned, the remarks made by the High Court against him3 (2021) 9 SCC 770

AB

C

D

EF

G

H

Aseem to be unreasonable and without justification. The Appellant No.2is merely a government employee of the department that is conductingthe investigation and has no personal involvement with the case. TheAppellant No. 2 is not an accused and has nothing to do with thetransaction of the crime, let alone the bail proceedings. No evidenceagainst him has been analyzed by the court and no opportunity has beenBgiven to him to explain himself, however, scathing and egregious remarkshave still been passed against him. In such a scenario, we find the remarkspassed by the High Court to be unfair and not in the interest of justice.

19. In so far as the Appellant No. 3 is concerned, even though heis an accused in the alleged crime, however, what must not be forgottenCis the fact that he does not have any lis in the bail proceedings, as thesame was exclusive to Respondent No.1. In such a scenario, whereAppellant No.3 was not party to the ongoing bail proceedings, we find itto be extremely unreasonable for the High Court to pass such adverseremarks against him.D

20. In the bail proceedings of Respondent No.1, because theAppellant No.3 was not a party, he did not have the opportunity to placehis submissions on record for the court to peruse the same. No specificallegations against Appellant No.3 were made before the High Court,since the bail proceedings, and the submissions of the counsels inEfurtherance of the said bail proceedings, were only limited to RespondentNo.1. In this context, when no allegations were made against AppellantNo.3, and the presumption of innocence is still functional in the favor ofthe Appellant No.3, we find it to be a gross abuse of the process of lawto pass such adverse remarks against him, as such remarks do not justcause injury to his reputation, but also has the potential to cause greatFprejudice to his actual trial.

ISSUE II-Whether the direction issued by the High Court toseek for reports against the Appellant No.2 during the bailproceedings of the respondent no.1 is liable to be set aside?

G21. As has been mentioned above, the Appellant No.2, who ismerely an employee of the institution that is handling the investigation ofthe alleged crime, had no lis in the abovementioned bail proceedings.The High Court vide an oral summons directed the presence of theAppellant No.2, to which he complied. After being summoned, the HighCourt, without allowing the Appellant No.2 a chance to be heard, andH

without going through the proper procedure, issued a direction to thecounsel of CBI to place reports against the Appellant No.2. At the sakeof repetition, it must be kept in mind that all of this had happened withinSection 439 Cr.PC proceedings, and that too against a person unconnectedto the accused.

22. In the case of RBI v. Cooperative Bank Deposit A/C HR.Sha[4],the Reserve Bank Of India challenged an order passed by theHigh Court during an application under section 439 of the CrPC, whereindirections were issued to the bank to distribute the money it recoveredfrom the accused. This court, while examining these directions held thatthe High Court must have confined itself to the issues relevant for thepurposes of deciding bail. The relevant observation of this Court is beingextracted hereunder:

“We are of the opinion that the far-reaching consequencesof the directions of the High Court are in a way beyond thescope of an application for bail filed by an accused underSection 439 of the Code of Criminal Procedure and the HighCourt, as much as anyone else, must stay confined to the issuesrelevant to the matter before it. It was thus not open to theHigh Court to pass orders which could affect the working ofbanks all over the country. It has been pointed out by MrBasava Prabhu S. Patil, the learned Senior Counsel for theappellant that it is for this reason that Reserve Bank of Indiahad filed this appeal.”

23. In the case of State Represented by Inspector of Police v.M. Murugesan & Anr[5], this Court held that in cases where a separatemechanism exists, the court under its inherent powers, especially incontext of bail proceedings, cannot issue directions that are outside thepurview of deciding the grant or rejection of bail. The relevantobservations made by this court are being reproduced herein:

“We find that the learned Single Judge has collated data fromthe State and made it part of the order after the decision [ofthe bail application, as if the Court had the inherentjurisdiction to pass any order under the guise of improvingthe criminal justice system in the State. The jurisdiction of the 4 (2010) 15 SCC 85

5 (2020) 15 SCC 251

A

B

C

D

E

F

G

H

Acourt under Section 439 of the Code is limited to grant or notto grant bail pending trial. Even though the object of theHon’ble Judge was laudable but the jurisdiction exercisedwas clearly erroneous. The effort made by the Hon’ble Judgemay be academically proper to be presented at an appropriateforum but such directions could not be issued under the colourB”of office of the court.

24. Further, in the case of State of Punjab vs Davinder Pal SinghBhullar and Others[6], where after deciding a criminal appeal, the HighCourt continued to pass orders with respect to other offenders inunconnected cases, this court held that such invocation of jurisdictionCoutside the purview of the main case at hand was unjust. The relevantparagraph of the said judgment is being produced herein:

“An inherent power is not an omnibus for opening a Pandora’sbox, that too for issues that are foreign to the main context.The invoking of the power has to be for a purpose that isDconnected to a proceeding and not for sprouting an altogethernew issue. A power cannot exceed its own authority beyondits own creation.”

25. In light of the abovementioned facts, we are of the opinionthat the actions of the High Court during the bail proceedings of a thirdEparty are manifestly arbitrary and unjust, and the High Court must haveconfined itself to the issues relevant to it for the purposes of deciding thebail of the Respondent No.1. A court of bail, especially in cases wherethe bail is sought for by a third party, is not a court that has all therelevant information to pass an order on the merits of an unconnectedFparty, and such an order, if passed, has the potential to cause great harmto the said party without them being afforded an actual and meaningfulopportunity to defend themselves. It is a well settled principle of law thatany party, when being accused of an illegal act, must be given anopportunity be fairly heard. This opportunity to be meaningfully heardhowever has not been afforded to the Appellant No.2, and hence weGhold issue 2 in favour of the Appellant No.2.

CONCLUSION

26. The legal system in general, and the judicial system in particular,has ushered into a new age of accessibility and transparency due to theH6 (2011) 14 SCC 770

adoption of virtual hearings and live telecasting of open court proceedings.These changes in the judiciary have ensured that the courts as redressalmechanisms have become more accessible to the common man thanever before. The limitations of physical infrastructure, that has constrainedthe courts to a physical location, has often been cited as one of the mainroadblocks in the path towards access to justice. This roadblock, however,has now been cleared due to the availability of technology and theadoption of the same. This never before seen transparency in the judicialsystem, while it brings with it great benefits, it also attaches with it astricter standard of responsibility on judges while conducting such courtproceedings. Remarks passed in court, due to the live broadcasting ofcourt proceedings, now have ramifications that are far reaching, and ascan be seen in the present case, can cause great injury to the reputationof the parties involved. In such a circumstance, it is essential for thecourts to be extremely cautious while passing adverse remarks againstthe parties involved, and must do so with proper justification, in the rightforum, and only if it is necessary to meet the ends of justice.

27. In light of the abovementioned discussions, not only are theadverse remarks passed by the High Court against the Appellants isliable to be expunged, but the impugned interim order itself is liable to bequashed. Accordingly, the impugned order dated 07.07.2022 standsquashed.

28. Further, in light of the previous order dated 18.07.2022 passedby this court, we presume that the bail proceedings of the RespondentNo.1 stands concluded. However, since there is no indication of theoutcome of the bail proceedigs, if the same has not already been decided,we request the High Court to expeditiously conclude the bail proceedingsin accordance with law on its own merits without being prejudiced orinfluenced by this judgment. Accordingly, the appeals stand allowed.

Ankit Gyan

Appeals allowed.

(Assisted by : Aarsh Choudhary, LCRA)

A

B

C

D

E

F

G

H