# Balaram Chari Dubey v. State of U.P

- **Citation:** (2025) 5 ILRA 273
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2025-05-29
- **Case number:** Application U/S 482 No. 16 of 2016
- **Bench:** Shree Prakash Singh
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/balaram-chari-dubey-v-state-of-u-p-53358
- **Pages:** 14

## Headnote

Criminal Law - Indian Penal Code, 1860
- Sections 376, 323, 504 & 506 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2) (V) - Protection of Children
from Sexual Offences Act, 2012 - Section
4 - As per F.I.R, accused committed rape
on informant's daughter - Applicant
appointed
as
Investigating
Officer,
conducted investigation, filed charge
sheet - During trial, all prosecution
witnesses (PW-1 to PW-5) examined ,
supported prosecution's case - Alleged
that applicant did not get victim's
St.ment recorded under Section 164
Cr.P.C. nor recorded doctor's St.ment -
Trial
court,
considering
this
wilful
negligence,
made
adverse
remarks
against applicant - Applicant, before
court
St.d
victim
was
unwell
and
requested not to record her St.ment -
Although victim later denied before trial
court, no evidence she ever filed any
complaint
against
applicant
before
Magistrate
-
Trial
court
recorded
St.ments of applicant and victim in usual
course, but upon concluding applicant
committed
wilful
negligence,
opportunity of hearing should be given -
Trial
court
made
adverse
remarks
against applicant without establishing
'wilful
negligence'
in
investigation,
ignoring
settled
law
and
defeating
purpose of Act, 1989. (Para 3, 4, 5, 7, 8,
21, 27, 28)

Application allowed. (E-13)

List of Cases cited:

## Text

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5 All. Balaram Chari Dubey Vs. State of U.P.
273
(2025) 5 ILRA 273
ORIGINAL JURISDICTION
CRIMINAL SIDE
DATED: LUCKNOW 29.05.2025

BEFORE

THE HON'BLE SHREE PRAKASH SINGH, J.

Application U/S 482 No. 16 of 2016

Balaram Chari Dubey ...Applicant
Versus
State of U.P. ...Opposite Party

Counsel for the Applicant:
Mahendra Pratap Singh

Counsel for the Opposite Parties:
Govt. Advocate

Criminal Law - Indian Penal Code, 1860
- Sections 376, 323, 504 & 506 -
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 -
Section 3(2) (V) - Protection of Children
from Sexual Offences Act, 2012 - Section
4 - As per F.I.R, accused committed rape
on informant's daughter - Applicant
appointed
as
Investigating
Officer,
conducted investigation, filed charge
sheet - During trial, all prosecution
witnesses (PW-1 to PW-5) examined ,
supported prosecution's case - Alleged
that applicant did not get victim's
St.ment recorded under Section 164
Cr.P.C. nor recorded doctor's St.ment -
Trial
court,
considering
this
wilful
negligence,
made
adverse
remarks
against applicant - Applicant, before
court
St.d
victim
was
unwell
and
requested not to record her St.ment -
Although victim later denied before trial
court, no evidence she ever filed any
complaint
against
applicant
before
Magistrate
-
Trial
court
recorded
St.ments of applicant and victim in usual
course, but upon concluding applicant
committed
wilful
negligence,
opportunity of hearing should be given -
Trial
court
made
adverse
remarks
against applicant without establishing
'wilful
negligence'
in
investigation,
ignoring
settled
law
and
defeating
purpose of Act, 1989. (Para 3, 4, 5, 7, 8,
21, 27, 28)

Application allowed. (E-13)

List of Cases cited:

1. St. of U.P. Vs Mohammad Naim, AIR 1964 SC
703, (Para 10)

2. Neeraj Garg Vs Sarita Rani & ors., (2021) 9
SCC 92, (Paras 9 to 18)

3. St. of Orissa & ors. Vs Mohammad Illiyas
reported in (2006) 1 SCC 275, (Paras 9 to 11)

4. Ananda Pangala Vs T.R. Jagannath reported
in 2003 Cr.L.J.3215, (Para 6)

5. Ram Pal Vs St. of Raj., reported in 1998
Cr.L.J. 3261, (Paras 8, 9)

6. Anujaram Parhi Vs St. of Orissa, reported in
1989 Cr.L.J. 447, (Para 3)

(Delivered by Hon'ble Shree Prakash
Singh, J.)

1. Heard Sri Mahendra Pratap Singh,
learned counsel for the applicant, Sri
Nirmal Kumar Pandey, learned A.G.A. for
the State.

2. The instant application under
section 482 of Cr.P.C. has been filed
assailing the impugned direction issued by
the learned Special Judge, S.C./S.T. Act,
Barabanki in Judgment and Order dated 2710-2015 passed in Sessions Trial No. 9472
of 2014, arising out of Case Crime No. 143
of 2014, under sections 376/323/504/506 of
the I.P.C., section 3(2) (V) of the S.C./S.T.
Act and section 4 of Protection of Children
from Sexual Offences Act, 2012, Police
Station-Jaidpur,
District-Barabanki.,
whereby the learned trial court has directed
274 INDIAN LAW REPORTS ALLAHABAD SERIES
the State-authorities to take action against
the applicant under section 4 of the
S.C./S.T. Act, for committing negligence in
conducting investigation of the case.

3. The factual matrix of the case is
that the first informant, Sitaram S/o Ram
Sanehi,
R/o
Akbar
Dhanethi,
Police
Station-Jaidpur, district-Barabanki, lodged
the first information report against the
accused, Tufail S/o Mohd. Hanif alleging
therein that on 03-04-2014, the accused,
Tufail committed rape on his daughter,
Km. Renu and upon such Tahrir, the first
information report was registered as Case
Crime No. 143 of 2014, under the
abovementioned charges.

4. After the first information report
was lodged, the present applicant was
inducted as Investigating Officer, who
conducted the investigation and after
collecting
the
evidence,
filed
the
chargesheet against the accused persons.

5. After filing of the chargesheet,
learned Magistrate committed the case to
the sessions court and the trial commenced,
whereupon the witnesses, P.W.-1, Sita
Ram, P.W.-2, Dr. Shushma Verma, P.W.-3,
the victim, Km. Renu, P.W.-4, the present
applicant and P.W.-5, Constable Priya
Kumar Tewari, were examined and all the
prosecution witnesses constantly supported
the prosecution version.

6. While deposing the testimony by
the victim, it is stated that ßlh0vks0 lkgc us
mlds ekrk firk dks cqyk;k Fkk vkSj ,d dkxt ij
gLrk{kj djk fy;k Fkk vkSj dkxt la[;k v&8 izn'kZ
d&6 ogh dkxt gS ftl ij lh0vks0lkgc us mldk
gLrk{kj cuok;k FkkAÞ.

7. It is alleged that the statement of
the victim under section 164 of the Cr.P.C.
was not got recorded before the Magistrate
and even the statement of the doctor was
also not recorded by the Investigating
Officer/applicant.

8.
The
learned
trial
court,
considering
the
abovesaid,
a
wilful
negligence, has made adversarial remarks
against the applicant. Being aggrieved, the
present application is filed challenging the
aforesaid part of the adverse remark in the
Judgment and Order dated 27-10-2015. The
adverse remark reads in virbtum as follows
:-

Þfoospd ch0lh0 nwcs vij iqfyl v/kh{kd
gjnksbZ ds fo:} /kkjk 4 vuqlwfpr tkfr@vuqlwfpr
tutkfr 1⁄4vR;kpkj fuokj.k1⁄2 vf/kfu;e ds vUrxZr
vkijkf/kd okn iathd`r djus ,oa mUgsa vfHk;ksftr
djus ds fy, fu.kZ; dh izfr x`g lfpo mRrj izns'k
dks Hksth tk; rFkk bl fu.kZ; dh izfr foospd dh
lfoZl cqd ij j[kus ds fy, iqfyl egkfuns'kd dks
Hksth tk;AÞ

9. It is contended by the learned
counsel for the applicant that the learned
trial court without affording opportunity of
hearing, has held the applicant liable for
negligence in conducting the investigation,
while recommending the action against him
under the provision of section 4 of the
Scheduled Castes and the Scheduled Tribes
(Prevention
of
Atrocities)
Act,1989
(hereinafter referred to as 'Act, 1989).
Section 4 of the Act, 1989 reads as under :-

"4. Punishment for neglect of
duties.-(1) Whoever, being a public servant
but not being a member of a Scheduled
Caste or a Scheduled Tribe, wilfully
neglects
his
duties
required
to
be
performed by him under this Act and the
rules made thereunder, shall be punishable
with imprisonment for a term which shall
not be less than six months but which may
extend to one year.
5 All. Balaram Chari Dubey Vs. State of U.P.
275

(2) The duties of public servant
referred to in sub-section (1) shall include-

(a) to read out to an informant
the information given orally, and reduced
to writing by the officer in charge of the
police station, before taking the signature
of the informant;

(b) to register a complaint or a
First Information Report under this Act and
other relevant provisions and to register it
under appropriate sections of this Act;

(c) to furnish a copy of the
information so recorded forthwith to the in
formant;

(d) to record the statement of the
victims or witnesses;

(e) to conduct the investigation
and file charge sheet in the Special Court
or the Exclusive Special Court within a
period of sixty days, and to explain the
delay if any, in writing;

(f) to correctly prepare, frame
and translate any document or electronic
record;

(g) to perform any other duty
specified in this Act or the rules made
thereunder:

Provided that the charges in this
regard against the public servant shall be
booked on the recommendation of an
administrative enquiry.

(3) The cognizance in respect of
any dereliction of duty referred to in subsection (2) by a public servant shall be
taken by the Special Court or the Exclusive
Special Court and shall give direction for
penal proceedings against such public
servant.]

10. He submits that the applicant
has committed no fault in conducting the
investigation rather, he after concluding the
investigation, filed the chargesheet against
the accused person, in a fair and proper
manner and there is no wilful negligence on
his part. He further submits that the
applicant has not been afforded the
opportunity of hearing by the learned trial
court, which vitiates the Judgment and
Order dated 27-10-2015. Adding his
arguments, he submits that the conduct and
behaviour of the applicant was always
above board and unblemished, therefore,
submission is that the Judgment and Order
dated
27-10-2015
to
the
extent
of
adversarial remarks, may be quashed.

11. On the other hand, learned
A.G.A. appearing for the State submits that
after concluding the investigation, the
chargesheet was submitted by the applicant
and the applicant has also appeared before
the trial court and deposed his testimony,
though, from perusal of the Counter
Affidavit, it transpires that there is no
denial of the pleadings made in the
application by the applicant, rather, to some
extent, those have been admitted by the
State.

12. Having heard learned counsels
for the parties and after perusal of the
records, it transpires that the impugned
Judgment and Order dated 27-10-2015, is
evident that the learned trial court has
recorded the statement of the victim/P.W.-
1,
who
stated
that
the
applicant/Investigating Officer had called
her father and got signature done and
rectified that the Exhibit K-8 & K-6 are the
same papers, whereupon she had signed.
The statement of the applicant was also
recorded during the course of trial, though,
no opportunity of hearing was afforded to
him, prior making the adverse remarks, in
the order. In catena of Judgments of
Hon'ble Apex Court, it is held that the
learned courts should refrain in making
adverse remarks against the public officers
without affording any opportunity of
276 INDIAN LAW REPORTS ALLAHABAD SERIES
hearing, if such remarks are not necessary
for pronouncement of the Judgment/Order.

13. It is discernible from the
provision of section 4 of the Act,1989 that
the negligence should be wilful and
therefore, it is incumbent upon the
authority,
who
is
proceeding
while
invoking the aforesaid provision to come to
a conclusion that the act of such public
servant performing the required duties, are
done with a wilful negligence. The
meaning of 'Wilful Negligence' means any
act done with intention and knowledge.

14. In this regard, I may refer the
Judgment of the Hon'ble Apex Court
reported in AIR 1964 SC 703, The State of
Uttar Pradesh Versus Mohammad Naim
and the paragraph no.10 of the abovesaid
Judgment, reads as under :-

"10) The last question is, is the
present case a case of an exceptional
nature in which the learned Judge should
have exercised his in herent jurisdiction
under S. 561-A Cr. P. C. in respect of the
observations complained of by the State
Government? If there is one princi ple of
cardinal importance in the administration
of justice, it is this the proper freedom and
in-dependence of Judges and Magistrates
must be maintained and they must be
allowed to per-form theif functions freely
and
fearlessly
and
without
undue
interference by anybody, even by this court.
At the same time it is equally. necessary
that in expressing their opinions Judges
and Magistrates must be guided by considerations
of
justice,
fair-play
and
restraint. It is not infrequent that sweeping
generalisations defeat the very purpose for
which they are made. It has been judicially
recognised that in the matter of making
disparaging remarks against persons or
authorities whose conduct comes into
consideration before courts of law in, cases
to be decided by them, it is relevant to
consider (a) whether the party whose
conduct is in question is before the court or
has an op-portunity of explaining or
defending himself; (b) whether there is
evidence on record bearing on that conduct
justifying the remarks; and (c) whether it is
necessary for the decision of the case, as an
integral part thereof, to animadvert on that
conduct. It has also been recognised that
judicial pronouncements must be judicial in
nature, and should not normally depart
from sobriety, moderation and reserve."

15. It has been said in so many
words by the Hon'ble Supreme Court that
in expressing the opinions, Judges and
Magistrates,
must
be
guided
by
consideration of justice, fair play and
restraint
and
frequent
and
sweeping
remarks shall hit the purpose for which
they are made.

16.
In
the
aforementioned
Judgment and Order, three guidelines
emerges; (I) The party whose conduct is in
question
has
afforded
opportunty
of
explaining or defending himself; (II) There
is evidence on record bearing on the
conduct justifying the remarks and ; (III) Is
it necessary for the decision of a case.

17. He has again placed reliance on
a Judgment reported in (2021) 9 SCC,92,
Neeraj Garg Vs Sarita Rani and Others
and has placed reliance on paragprah nos. 9
to 18 of the Judgment, which are quoted as
follows :-

 9. To press home the argument
that the offending remarks against the
counsel are unmerited, and do not meet the
required parameters, the learned Senior
5 All. Balaram Chari Dubey Vs. State of U.P.
277
Counsel has cited State of U.P. v. Mohd.
Naim where S.K. Das, J. laid down the
following tests to be applied while dealing
with
the
question
of
expunction
of
disparaging remarks against a person
whose conduct comes in for consideration
before a court of law. Those tests are: (AIR
p. 707, para 10)

10. ... (a) Whether the party
whose conduct is in question is before the
court or has an opportunity of explaining
or defending himself; (b) Whether there is
evidence on record bearing on that conduct
justifying the remarks; and

(c) Whether it is necessary for the
decision of the case, as an integral part
thereof, to animadvert on that conduct.
 10. In Alok Kumar Roy v. S.N.
Sarma, in the opinion written by C.K.
Wanchoo. J. for a five-Judge Bench, this
Court had emphasised that even in cases of
justified criticism, the language employed
must be of utmost restraint. The use of
carping language to disapprove of the
conduct of the counsel would not be an act
of sobriety, moderation or restraint.

11. The judgment of this Court in
A.M. Mathur v. Pramod Kumar Gupta,
delivered by K. Jagannatha Shetty, J.,
elaborates on the need to avoid even the
appearance of bitterness. The Court
observed that: (SCC pp. 538-39, para 13)

"13. The duty of restraint, this
humility of function should be constant
theme of our Judges. This quality in
decision-making is as much necessary for
Judges to command respect as to protect
the independence of the judiciary. Judicial
restraint in this regard might be better
called judicial respect, that is, respect by
the judiciary."

12. The importance of avoiding
unsavoury remarks in judicial orders as
per established norms of judicial propriety
has also been succinctly noted in Abani
Kanta Ray v. State of Orissa by J.S. Verma,
J. in the following words: (SCC p. 178.
para 15)

"15....
Use
of
intemperate
language or making disparaging remarks
against
anyone
unless
that
be
the
requirement for deciding the case, is
inconsistent
with
judicial
behaviour.
Written words in judicial orders are for
permanent record which make it even more
necessary to practice self-restraint in
exercise of judicial power while making
written orders.".

13. The principles laid down as
above, have been quoted with approval and
applied by this Court in several subsequent
judgments, including for a three-Judge
Bench in Samya Sett v. Shambhu Sarkar10,
In this case C.К. Thakker. J. writing for the
Court opined that the adverse remarks
recorded were neither necessary for
deciding the controversy raised before the
Court nor an integral part of the judgment,
and accordingly directed deletion of those
remarks.

14. The proposition of law laid
down by S.K. Das, J. on behalf of the fourJudge Bench in Mohd. Naim on recording
of adverse remarks has been approved in a
catena of decisions since 1964. It was also
cited by the Supreme Court of Sri Lanka in
A.N. Perera v. D.L.H. Pererall where
Abdul Kadir, J. speaking for the Bench
approved of the tests laid down by this
Court and concluded that the Judge's
comments against the petitioner in that
case were a thoroughly unwarranted under
each of those tests.

15. While it is of fundamental
importance in the realm of administration
of justice to allow the Judges to discharge
their functions freely and fearlessly and
without interference by anyone, it is equally
important for the Judges to be exercising
278 INDIAN LAW REPORTS ALLAHABAD SERIES
restraint and avoid unnecessary remarks
on the conduct of the counsel which may
have no bearing on the adjudication of the
dispute before b the court.

16. Having perused the offending
comments recorded in the High Court
judgments, we feel that those could have
been avoided as they were unnecessary for
deciding the disputes. Moreover, they
appear to be based on the personal
perception of the learned Judge. It is also
apparent that the learned Judge did not,
before recording the adverse comments,
give any opportunity to the с appellant to
put forth his explanation. The remarks so
recorded have cast aspersion on the
professional integrity of the appellant. Such
condemnation of the counsel, without
giving him an opportunity of being heard
would be a negation of the principles of
audi alteram partem. The requisite degree
of restraint and sobriety expected in such
situations is also found to be missing in the
offending comments.

17. The tenor of the remarks
recorded against the appellant will not only
demean him amongst his professional
colleagues but may also adversely impact
his professional career. If the comments
remain
unexpunged
in
the
Court
judgments, it will be a cross that the
appellant will have to bear, all his life. To
allow him to suffer thus, would in our view
be prejudicial and unjust.

18. In view of the foregoing, we
are of the considered opinion that the
offending remarks recorded by the learned
Judge against the appellant should not
have been recorded in the manner it was
done. The appellant whose professional
conduct was questioned, was not provided
any opportunity to explain his conduct or
defend himself. The comments were also
unnecessary for the decision of the Court.
It is accordingly held that the offending
remarks should be recalled to avoid any
future harm to the appellant's reputation or
his work as a member of the Bar. We
therefore order expunction of the extracted
remarks in paras 4, 5, 6 and 7 of this
judgment. The appeals are accordingly
disposed of with this order."

18. The remarks recorded against
the public authority will not only demean
his image, but, would also adversely impact
his professional career and therefore,
without affording the opportuntiy of
hearing, in a well guarded manner, such
remarks would be highly prejudicial and
unjust.

19. In the case of State of Orissa
and Others Vs Mohammad Illiyas reported
in (2006) 1 SCC 275, it is held that so far
as the meaning and intent of wilful
negligence, as provided under section 4 of
the Act,1989, is concerned, the same is
manifest that the first condition is that some
duty is casted under the Act, 1989 to be
performed and then only, it could be
examined that whether there is any
intentional negligence on the part of such
public
officer.
For
ready
reference,
paragraph nos. 9,10 & 11 of the Judgment
are quoted hereinunder :-

"9. At this juncture it is desirable
to consider the true import of the word
"willul". An act is said to be "wilful" if it is
intentional, conscious and deliberate. (See
Rakapralli Raja Rama Gopalu Ruo v.
Nuraguni Govinda Sehararavy

10.
The
expression
"wilful"
excludes casual, accidental, bona fide or
unintentional acts or genuine inability. It is
to be noted that a wilful act does not
encompass accidental, involuntary, or
negligent. It must be intentional, deliberate,
calculated
and
conscious
with
full
5 All. Balaram Chari Dubey Vs. State of U.P.
279
knowledge of legal consequences lowing
therefrom. The expression "wilful" means
an act done with a bad purpose, with an
evil motive.

11. "Wilful" is a word of familiar
use in every branch of law, and although in
some branches of law it may have a special
meaning, it generally. as used in courts of
law, implies nothing blameable, but merely
that the person of whose action or default
the expression is used is a free agent, and
that what has been done arises from the
spontaneous action of his will. It amounts
to nothing more than this, that he knows
what he is doing, and intends to do what he
is doing, and is a free agent. (Per Bowen,
L.J. in Yoong and Harston's Contract, Res.)
It does not necessarily connote blame.
although the word is more commonly used
for bad conduct than of good. (See Wheeler
v. New Merton Board Mills.) Whatever is
intentional is wilful. (Per Day. J. in
Gayford v. Chouler.) As observed by
Russel, C.J. in R. v. a Seniors "wilfully"
means deliberately and intentionally."

20. When this court examines this
matter on the aforesaid parameter, it is
apparent from the fact of this case that it is
not the case that the present applicant being
the Investigating Officer, has committed
any wilful negligence, as he conducted the
investigation and recorded the statement of
the victim and filed the chargesheet against
the accused person. There may be some
lacunas in filing of the chargesheet and in
conducting the investigation, but, that
would not suffice the purpose to come to a
conclusion that the same has been done
with some knowledge or intention as
ultimately, the chargesheet has been filed
and therefore, no benefit is accorded to the
accused person. Further the victim herself
has stated that the Exhibit K-6 is signed by
her, which prima-facie, shows that the
statement,which is mentioned on Exhibit
K-6, is of the victim, unless it is proved
contrary,
though,
there
is
no
such
discussion or finding in the impugned
Judgment
and
Order,
which
could
substantiate that the victim has succeeded
to prove it that the same is not the
statement of the victim.

21. It is also noticed that the
applicant,
B.C.Dubey,
being
the
Investigating Officer, produced himself
before the court and deposed his testimony
while stating that since the victim was ill
and she had requested that her statement
under section 164 of Cr.P.C., should not be
got recorded, though, at the time of the
statement before the learned trial court, the
victim has denied this fact, but, there is no
evidence that the victim had ever made any
complaint
against
the
applicant/Investigating Officer for not
getting recorded her statement before the
Magistrate under section 164 of the Cr.P.C.

22. I may also refer the law
rendered in the case of Ananda Pangala
Vs. T.R. Jagannath reported in 2003
Cr.L.J.3215, wherein paragraph no. 6, it
has been held by the Karnataka High Court
that in order to proceed under section 4 of
the Act,1989 against the Investigating
Officer, there should be necessary and
proper averments of the facts to the effect
that such Investigating Officer has 'wilfully
neglected' his duties by not properly
investigating the offence. Paragraph no. 6
of the abovesaid Judgment reads as under :-

"6. It is the contention of the
petitioner that the investigation has not
been conducted by the respondents in Cri.
P. Nos. 2312 and 2313 of 2002 in a proper
manner. There is sufficient material to
disclose that the accused have committed
280 INDIAN LAW REPORTS ALLAHABAD SERIES
the offence punishable under Section
3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 and deliberately the said offence
has not been included. In that regard, a
private complaint has been filed. After
carefully going through the statement of the
petitioner in Cri. P. No. 2312 of 2002, who
is cited as C.W. 2 in S.C. No. 500f 1999
and averments made in the private
complaint, they do not disclose any
material to enable invoking of provisions of
Section 3(2)(v) of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989. In the FIR in S.C. No. 50 of 1999
and the statements of C.Ws. 1 and 2, who
are the petitioners herein, nowhere it is
stated that the deceased was murdered with
an animus that she belongs to Scheduled
Caste.
The
motive
offered
by
the
petitioners, only indicate that the murder
has been committed for gain. The gold
jewellery worn by the deceased is alleged
to have been robbed by the accused in S.C.
No. 50 of 1999. Of course, the prosecution
has placed material to show discovery of
the said articles at the voluntary instance of
the accused, it is very preposterous on the
part of the petitioners to contend that the
Police Officers have committed offence in
this regard. The provisions of Section 4 of
the Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989, fasten
criminal liability on the public servants,
who wilfully neglect their duties required to
be performed by them under the Act and
make punishable for imprisonment for a
term not less than six months and may
extend upto one year. In order to invoke
Section
4
of
the
Act
against
the
Investigation
Officers,
there
should
necessary and proper averments of facts to
the effect that they have wilfully neglected
their duties by not properly investigating
the offence covered by sections of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. In
what manner there is a failure to take steps
on the pan of the Investigation Officers is
to be clearly stated. In the context of
provision of Section 4 of the Act, if the
averments made in the private complaint in
S.C. No. 50 of 1999 is read, it does not
suggest that necessary material showing
ingredients of Section 4 has been made out
to proceed against the Police Officers
under the complaint in P.C.R. No. 251 of
2000. Therefore, I find that the Sessions
Judge was justified in setting aside the
order as against the respondents in Cri. P.
Nos. 2312 and 2313 of 2002. The said
impugned
order
does
not
call
for
interference."

23. Similarly, in the case of Ram
Pal Vs State of Rajasthan, reported in
1998 Cr.L.J. 3261, it has been held that the
purpose of section 4 is very clear that the
offences, which are punished under this
section, must have been committed in
respect of some duty to be performed under
the Act,1989 and if it's not so, the
provision of section 4 of the Act,1989,
would not attract. Paragraph nos. 8 & 9 of
the
said
Judgment
are
reproduced
hereinunder :-

"8. The first question to be
decided is whether an offence under
Section 4 of the Scheduled Castes end
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 was committed.

Section 4 reads:-

Punishment for neglect of duties -
Whoever, being a public servant bút not
being a member of a Scheduled Caste or a
Scheduled Tribe, wilfully neglects his
duties required to be performed by him
under this Act, shall be punishable with
imprisonment for a term which shall not be
5 All. Balaram Chari Dubey Vs. State of U.P.
281
less than six months but which may extent
to one year.

A bare reading of Section 4
shows that the offences, which are
punishable under this section, must.. have
been committed in respect of some duty to
be performed under the Scheduled Castes
and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. If any duty is to be
performed under any other Act (including
the Code of Criminal Procedure), then the
provisions of Section 4 of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 do not apply.

The crucial question is whether
the investigation was conducted under the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 and
whether the submission of final report was
in respect of any duty prescribed under the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. If
answer be in the affirmative, it will be said
that the offence under Section 4 of the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 may be
committed. But, if the answer be in the
negative, then it will have to be said that
nooffence under Section 4 of the Schedu led
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 can be said to have
been committed, if any public servant
wilfully neglects his duties prescribed by
any other law.

In the instant case, the complaint
was sent to the police for investigation
under Sub-section (3) of Section 156,
Cr.P.C. The case was registered by the
police in exercise of the powers given by
the Code of Criminal Procedure. The
investigation
was
conducted
by
the
petitioner under Section 157 and other
provisions of the Code of Criminal
Procedure, 1973 and the final report,
which the petitioner has submitted was in
discharge of the duty prescribed by Section
173 Code of Criminal Procedure. 1973.
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989 does
not provide any particular procedure for
the investigation of the cases and therefore,
in view of Section 4(2) the offence are
required to be investigated, enquired into,
tried or otherwise dealt with according to
the provisions of Code of Criminal
Procedure except to the extent the general
provisions contained in the Code of
Criminal Procedure are superseded by any
special
provision
contained
in
the
Scheduled Castes and Scheduled Tribes
(Prevention of Atrocities) Act, 1989. In
view of this position of law, the submission
of final report under Section 173 Code of
Criminal Procedure, 1973 cannot be said
to be an act done in exercise of the duty
prescribed by or under the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. Consequently, I have
no hesitation in coming to the conclusion
that even if any neglect of duty in the
conduct of investigation is committed by
the Investigating Officer while purporting
to act in exercise of the powers conferred
by the Code of Criminal Procedure, 1973,
the provisions of Section 4 of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989 would not be attracted
unless it can be established that the wifal
neglect of duty was committed by the
Investigating Officer in relation to a duty
prescribed under the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989.

The learned judicial Magistrate
does not appear to have considered the
provisions of Section 4 of the Scheduled
Castes and Scheduled Tribes (Prevention of
Atrocities) Act, 1989. It would not be out of
place to point out that prosecution and
punishment for an alleged crime is a very
282 INDIAN LAW REPORTS ALLAHABAD SERIES
serious matter and certain important
constitutional safeguards are provided in
Part III of the Constitution. Clause (1) of
Article 20 of the Constitution provides that
no person shall be convicted of any offence
except for violation of law in force at the
time of the commission of the act charged
as an offence, nor be subjected to a penalty
greater than that which might have been
inilicted under the law in force at the time
of the commission of the offence.

In order the fundamental right
guaranteed by
Article
20(1) of
the
Constitution may not be violated, it is
necessary that the authorities, who feel
called upon to initiate any action against
any person for committing any offence
should satisfy themselves whether the
alleged offence in respect of which an
action against any person is required to be
taken is an offence under any law for the
time being in force. It is, therefore,
necessary that the provisions of law which
declare an act to be an offence must be
carefully read and interpreted before
cognizance is taken and process is issued
against any

For the reasons mentioned above,
in the instant case, no offence under
Section 4 of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989 could be said to have been
committed by the petitioner as wel a as by
the Superintendent of Police, Chura,
because the submission of the final report
under
Section
173.
Cr.P.C.
is
in
performance of the duty prescribed by the
Code of Criminal Procedure and not by
any provision of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989.

A bare reading of Section 4
shows that before an offence under Section
4 may be committed, it must be shown that
a public servant has wilfully neglected his
duties. A bona fide action, even though it
may be erroneous, cannot be branded as
wilful neglect of duty. In his order dated
16th March, 96 the learned Judicial Magis
trate has himself observed :-

COU

blds vykok ftyit iqfyl vi/k(kd]
pq:

dksj teg i koyh vkns kkFkZ Hksth rks J-ihpq: us Hkh iskoyh ij miyC/k Ikexzh ij fopkj ugha
djs Fiksa dh vuns[kh dh gS tks,d mPpki/kdkjh dh
thu&ew> dj dh xih ykjokgh gS tks yksd&lsod ds
dr70; ikyu da nkSjku fd, s, dh ifjf/k esa ugha
vkrk gSa A The most charitable view which
can be taken in the case is that the learned
Judicial Magistrate was of the opinion that
the
Superintendent
of Police,
Churu
neglected the performance of his duty, but
a mere neglect: is not punishable under
Section of the Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities)
Act, 1989.

It has been observed by this
Court in several cases that issue of process
against any person on the allegation thal
he has committed an offence is serious
matter. It deprives the person of his
personal hberty guaranteed by Article 21 of
the Constitution. Therefore, before issue of
process, it must be inquired into whether
the ingredients of the offence are prirna
facie established by the evidence produced
before the officer of the Court.

Suluuission of a final report
under
Section
173,
Cr.P.C.
by
the
petitioner Rampal was obviously an art
performed in discharge of his public duties
as an Investigating Officer conducting
investigation unalet the Code of Criminal
Procedure,
1973.
By
no
stretch
of
imaginatión it can be said that the
sulunission of final report was not a part of
his public duty. In these circuiristances,
prima facie, the petitioner as well as the
Superintendent of Police, Churu both were
5 All. Balaram Chari Dubey Vs. State of U.P.
283
entitled to protection of Section 197,
Cr.P.C. and no cognizance of offence could
be taken against them without proper
sanction. The view taken by the learned
Judicial Magistrate that the petitioner is
not entitled to protection of Section 197,
Cr.P.C. is erroneous and cannot be
maintained.

So far as role of Superintendent
of Police, Churu is concerned, it is
necessary to consider whether in the
instant case the Superintendent of Police,
Churu was required to perform any duty
under the Code of Criminal Procedure in
the matter of submission of the report
under Section 173. Cr.P.C. Under Section
156, Cr.P.C. the powers to investigate the
ease have been conferred upon the Officer
Incharge of the Police Station. Section 157,
Cr.P.C. the Officer Incharge of the Police
Station may himself proceed to the spot for
investigation or he may depute one of his
subordinate officers not being below such
rank as the State Government may by
general or special order, prescribe in this
behall. Under Section 173, Cr.P.C. the
report,
after
the
completion
of
the
investigation, is to be forwarded to a
Magistrate empowered to take cognizance
of the of fence by the Officer Incharge of
the Police Station. These provisions clearly
show that whatever duties have been
prescribed by the Code of Criminal
Procedure, 1973 so far as the submission
of the report under Section 173, Cr.P.C. is
concerned, the duties have been prescribed
for the Officer Incharge of the Police
Station. The Superintendent of Police or
other senior officers are not required to
perform any duty unless of course they
exercise the powers of the Officer Incharge
of the Police Station in the case, either on
account of their being as Officer Incharge
of the Police Station or under Section 36,
Cr.P.C. A perusal of the final report
prepared by subordinate officer of the
Superintendent of Police is in the capacity
of an administrative senior officer and not
as Officer Incharge of the Police Station.
The learned Judicial Magistrate does not
appear to have considered the legal
provision in this behalf before passing the
impugned order dated 16th March, 96."

24. It is also noticeable that in the
case of Anujaram Parhi Vs State of
Orissa, reported in 1989 Cr.L.J.,447, it has
been held that the inherent powers under
section 482 of the Cr.P.C., can be invoked
for expunction of remarks made by the
learned trial court, particulaly, when such
remarks were not necessary for decison of a
case. Paragraph no. 3 of the aforesaid
Judgment is reproduced hereinunder :-

"3. Before the decision of the
Supreme Court in the case of State of Uttar
Pradesh v. Mohammad Naim, AIR 1964
Supreme Court 703: (1964 (1) Cri.L.J.
549), there was conflict of opinion as to the
jurisdiction of the High Court to expunge
objectionable matter from the judgement of
an inferior court. One view was that the
High Court had no jurisdiction to expunge
passages from the judgement of an inferior
court which had not been brought before it
in revision. The other view was that the
Iligh Court had inherent power to expunge
ubjectionalile it in regular appeal or
passages from a judgement elther delivered
in itself or by a subordinate court which
are either relevant or inadmissible or
which adversely affect the character of a
person before the Court. The controversy,
however, remains res integral in view of
the decision of the supreme Court, referred
to supra. It has been authoritatively held in
the aforesaid case by the supreme Court
that the High Court can, in exercise of its
inherent jurisdiction, expunge remarks
284 INDIAN LAW REPORTS ALLAHABAD SERIES
made by it or by a lower court if be
necessary to do so to prevent aluse of the
precious of the Cours or otherwise to
secure the ends of justice although the
matter has not been a brought before it in
regular appeal or revision. While saying
so, the Supreme Court has also stated a
word of caution that the power of
expunction is of an Atraordinary nature
and has to be exercised with great care and
caution. Courts of justice, no doubt, in the
interest of the proper administration of
justice should be allowed to perform their
functions freely and fearlessly and to
comment upon the statement of a witness
when relevant to the case and there should
not be undue interference by the High
Court in this regard. But where there is no
foundation fon the remark in question nor
is it necessary for a court to make the
remark for a just decision of the case and
such remark adversely affects the person
against whom it is made, the courts of
justice should refrain from making such
remark. It is always the settled principle
that a court should bear in mind while
weighing the evidence and arriving at a
conclusion on questions of fact that the
court should not be harsh and should
exercise great reserve and moderation. It is
not in the interest of administration of
justice that courts should make sweeping
aspersion or use intemperate language
which is unduly harsh particularly when
the person disparaged has hardly any
opportunity of explaining or defending
himself. If the conduct of a witness appears
to the judge to be suspicious on otherwise
not above board, he has the right and duty
to test his evidence by putting questions to
him. But before the court is justified in
commenting adversely upon the evidence, it
must
establish
the
particular
fact
warranting such criticism and remarks
cannot be made on conjectures. It has been
laid down by the Supreme Court in the case
of Dr. Raghubir Saran v. State of Bihar,
AIR 1964 Supreme Court 1: (1964 (1)
Cri.L.). 11), that if an unjustifiable attack is
made on a person who had no opportunity
of being heard in his own defence, and the
remark is irrelevant and separable, it
should be expunged.