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2025 DAILYLAW 3523 (HP)

Sandeep Kumar v. State of Himachal Pradesh

2025-09-17

Rakesh Kainthla

body2025
JUDGMENT : Rakesh Kainthla, J. The present petition has been filed against the order dated January 30, 2025, passed by the learned Special Judge, Hamirpur (learned Trial Court) in the case titled State versus Maya Devi and others, for expunging the observations made against the petitioners. 2. Briefly stated, the facts giving rise to the present petition are that a case No. 13 of 2023 titled State versus Maya Devi and others is pending before the learned Trial Court. Matter was listed on 29.11.2024 for recording the statement of Hari Krishan (DW3). Petitioner No.2, Rahul Chopra, was cross- examining the witness. He produced one pen drive and requested the Court to confront the witness with its contents. Learned Trial Court held that the evidence of the prosecution had already been closed, no pen drive was produced by the prosecution or the complainant, the pen drive was not supported by a certificate, no prior notice was given to the defence and the statement of the witness under Section 161 Cr. P.C. was available on record to confront him; therefore, the prayer of the learned Public Prosecutor could not be allowed. A request to defer the cross- examination of the witness was also rejected. 3. The victim filed an application under Section 15A of the Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act (SC & ST Act) for placing on record the pen drive and DVD along with the relevant certificate. It was asserted that one video of the incident became viral after the completion of the prosecution’s evidence. This video was sent to the victim by a villager on her WhatsApp. The contents of the video were transferred to DVD. A pen drive, a DVD and a certificate under Section 65-B of the Indian Evidence Act were to be placed on record. 4. The application was opposed by the accused by filing a reply. The State did not file any reply. 5. The matter came up before the learned Trial Court on 30.01.2025, and the learned Trial Court held that the earlier learned Public Prosecutor had requested to put the recording on the pen drive to the witness, which request was turned down. The pen drive and video were made available to the learned Public Prosecutor on 29.11.2024. The victim had to engage a private counsel and file an application to bring the pen drive on record. The pen drive and video were made available to the learned Public Prosecutor on 29.11.2024. The victim had to engage a private counsel and file an application to bring the pen drive on record. The victim was not supposed to know the technicalities of the law. However, the Public Prosecutor was supposed to be aware of the provisions of law and the method of bringing the document on record. The learned Public Prosecutor had not taken any steps to bring the pen drive on record, and the victim had to engage a private counsel. The Public Prosecutor and Special Public Prosecutor neglected their duties; therefore, a show cause notice was issued to them as to why the administrative inquiry under Section 4 of the SC & ST Act should not be recommended against them because they failed to perform their duties, and they were debarred from appearing in the case in future. 6. Being aggrieved by the order passed by the learned Trial Court, the petitioners have filed the present petition for quashing the observation made against them. It was asserted that the learned Trial Court wrongly concluded that the victim was forced to engage a private counsel due to the neglect of the petitioners. Petitioner No.2 had told the victim that she had a right to engage a private counsel, and the State would also file a supplementary charge-sheet. The victim has an absolute right to engage counsel under Section 15A (12) of the SC & ST Act. The pen drive was supplied to the petitioner No. 2 on 29.11.2024, which fact was recorded in the statement. Petitioner No.2 had brought the pen drive to the notice of the Court, but the learned Trial Court refused to accept it. The petitioners are discharging their duties honestly and faithfully. Section 4 of the SC & ST Act is not attracted to the present case. Learned Trial Court had no jurisdiction to direct that the petitioners would not appear before the Court, and some other person should be appointed as a Public Prosecutor. No opportunity of hearing was given to the petitioners before passing the order. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 7. The petition is opposed by the State by filing a reply, making a preliminary submission regarding the lack of maintainability. No opportunity of hearing was given to the petitioners before passing the order. Therefore, it was prayed that the present petition be allowed and the order passed by the learned Trial Court be set aside. 7. The petition is opposed by the State by filing a reply, making a preliminary submission regarding the lack of maintainability. It was asserted that the learned Trial Court was justified in issuing the notice under Section 4(3) of the SC & ST Act. They could have explained their position before the learned Trial Court. An application was moved by the complainant before the Superintendent of Police, Hamirpur, to file a supplementary challan on the basis of a DVD and a pen drive. She also produced a DVD and a pen drive before the Court. Learned Deputy District Attorney has also requested to file a supplementary challan. Further investigation was entrusted to Deputy Superintendent of Police Sh. Partap Singh and a supplementary challan was prepared and filed before the Court. Matter was listed for checking of a copy of the supplementary challan. The application was disposed of because of the supplementary challan having been filed. Therefore, it was prayed that the present petition be dismissed. 8. Notice was issued to the victim, and the victim appeared before the Court on 20.03.2025 and stated that she did not want to file any reply to the petition. 9. I have heard Mr. Romesh Verma, learned Senior Advocate, assisted by Mr. Sumit Sharma, learned counsel for the petitioners and Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State. 10. Mr. Romesh Verma, learned Senior Advocate for the petitioners, submitted that the learned Trial Court exceeded its jurisdiction in passing strictures against the petitioners. The petitioners had informed the Court that a pen drive was supplied to the prosecution in the morning; therefore, the prosecution could not get the requisite certificate. A letter was written to the Superintendent of Police, Hamirpur, to file the supplementary charge-sheet. The supplementary charge-sheet was filed as per the victim’s application and the letter written by the prosecution. Learned Trial Court erred in concluding that there was willful disregard of the duties by the petitioners. No order could have been passed to debar the petitioner from appearing in the Court. The supplementary charge-sheet was filed as per the victim’s application and the letter written by the prosecution. Learned Trial Court erred in concluding that there was willful disregard of the duties by the petitioners. No order could have been passed to debar the petitioner from appearing in the Court. Therefore, it was prayed that the present petition be allowed and the order dated 30.01.2025 passed by the learned Trial Court be set aside qua the petitioners. He relied upon Sonu Agnihotri versus Chandra Shekhar & others, Criminal Appeal Nos. 388-389 of 2024 decided on 22.11.2024,  State of Punjab and another versus M/s Shikha Trading Co., Civil Appeal No.2453 of 2011 decided on 25.08.2023, Dushyant Mainali versus Diwan Singh Bora & another, SLP(C) No.15191 of 2022 decided on 25.11.2024, Siddhartha Singh versus Assistant Collector First Class/Sub- Divisional Magistrate and others, Civil Appeal Nos. 011043- 011044/2024 arising out of SLP (C) Nos. 9498-9499/2022 decided on 24.09.2024, and Sandeep Kumar versus State of H.P., Cr.MMO No. 1289 of 2024, decided on 29.08.2025 in support of his submission. 11. Mr. Lokender Kutlehria, learned Additional Advocate General for the respondent-State, submitted that the Court had only issued the show cause notice to the petitioners. The petitioners have failed to file a reply and explain their position. The jurisdiction under Section 528 of Bhartiya Nagrik Suraksha Sanhita (BNSS) is extraordinary and should not be exercised when the order does not adversely affect any person. Therefore, he prayed that the present petition be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. Learned Trial Court held that the previous statement recorded by the police under Section 161 of Cr. P.C. was available on record to confront the witness. Therefore, he prayed that the present petition be dismissed. 12. I have given considerable thought to the submissions made at the bar and have gone through the records carefully. 13. Learned Trial Court held that the previous statement recorded by the police under Section 161 of Cr. P.C. was available on record to confront the witness. Proviso to Section 162 of Cr.P.C. reads as under Provided that when any witness is called for the prosecution in such inquiry or trial whose statement has been reduced into writing as aforesaid, any part of his statement, if duly proved, may be used by the accused, and with the permission of the Court, by the prosecution, to contradict such witness in the manner provided by Section 145 of the Indian Evidence Act, 1872 (1 of 1872); and when any part of such statement is so used, any part thereof may also be used in the re-examination of such witness, but for the purpose only of explaining any matter referred to in his cross-examination. 14. It is apparent from the bare perusal of the section that a statement recorded under Section 161 of Cr. P.C. can only be used when a witness is called by the prosecution and not by the defence. It was laid down by the Hon’ble Supreme Court in Shakila Khader v. Nausheer Cama, (1975) 4 SCC 122 : 1975 SCC (Cri) 379: 1975 SCC OnLine SC 103 that only a prosecution, and not the defence or Court witness, can be cross-examined by the prosecution with reference to his previous statement. It was observed at page 125: “4...As regards the evidence of PW 1, it was wrong to have allowed him to be cross-examined by the prosecution with reference to the statement which he had given to the police. Under Section 162 CrPC, only witnesses on behalf of the prosecution could be contradicted by reference to their statements made to the police, and not court witnesses or defence witnesses. Even so, in the circumstances of this case, his evidence, which is more or less similar to the evidence of PWs 5 to 7, cannot be accepted.” (Emphasis supplied) 15. Therefore, it is impermissible to use the statement under Section 161 Cr.P.C when the witness is appearing as a defence witness. Even so, in the circumstances of this case, his evidence, which is more or less similar to the evidence of PWs 5 to 7, cannot be accepted.” (Emphasis supplied) 15. Therefore, it is impermissible to use the statement under Section 161 Cr.P.C when the witness is appearing as a defence witness. Unfortunately, the attention of the learned Trial Court was not drawn towards the provisions of Section 162 of Cr.P.C., which led to the passing of the impugned order. 16. The learned Public Prosecutor wanted to put the video recording to the witness during the cross-examination. Learned Trial Court held that it was impermissible; however, no reference was made to any provision which prevents the party from putting any document to a witness during the cross-examination. Code of Civil Procedure provides in Order 7 Rule 14 (3) and Order 8 Rule 1- A (3) that a document which is not produced with the plaint or written statement cannot be received in evidence without the leave of the Court except when it is being put to a witness in the cross-examination. Explanation to Section 5 of the Indian Evidence Act prohibits a person from giving evidence of a fact which he is disentitled to prove by any provision of the law for the time being in force regarding the Civil Procedure, and does not mention the Code of Criminal Procedure. Attention of this Court was not brought to any provision in the Cr. P.C., which prohibits a party from putting a document in the cross-examination. Therefore, the learned Trial Court erred in declining to allow the petitioner to put the pen drive to the witness in the cross- examination. 17. Learned Trial Court held that the petitioners neglected in their duties and the victim had to engage a private counsel. There is no material in support of this fact. The victim nowhere stated in her application that she was compelled to engage a private counsel because of the negligence of the petitioners. Section 15A (4) empowers the victim to apply to the Special Court for summoning parties or producing documents on material. 15 A(5) provides a right to a victim to be heard in the proceeding for being discharged, released, parole, conviction, sentence or connecting proceeding or argument. 15A (12) provides that the victim is entitled to a representation by an advocate. Section 15A (4) empowers the victim to apply to the Special Court for summoning parties or producing documents on material. 15 A(5) provides a right to a victim to be heard in the proceeding for being discharged, released, parole, conviction, sentence or connecting proceeding or argument. 15A (12) provides that the victim is entitled to a representation by an advocate. Hence, the victim has an independent right to participate in the proceedings, and there is no material on record to show that the victim was compelled in the present case to engage counsel because of the petitioners’ neglect. 18. Learned Trial Court debarred Public Prosecutor and Special Public Prosecutor from appearing in the case on behalf of the State. No provision of law was brought to the notice of this Court which empowers the Court to debar any person from appearing before the Competent Court. Recourse cannot be had to the inherent power because it was laid down by the Hon’ble Supreme Court in Mithabhai Pashabhai Patel v. State of Gujarat, (2009) 6 SCC 332 : (2009) 2 SCC (Cri) 1047: 2009 SCC OnLine SC 1055 that inherent powers are vested only with the High Court and not with the other Courts. It was observed at page 337: “15. The investigating agency and/or a court exercise their jurisdiction conferred on them only in terms of the provisions of the Code. The courts subordinate to the High Court do not even have any inherent power under Section 482 of the Code of Criminal Procedure or otherwise.” 19. Thus, the learned Trial Court erred in passing an order debarring the public prosecutor from appearing in the Court. 20. There is a force in the submission of Mr. Romesh Verma, learned Senior Counsel for the petitioners, that such a harsh order could not have been passed without allowing the petitioners to explain their position. It was laid down by the Hon'ble Supreme Court in State of Punjab v. Shikha Trading Co., (2023) 20 SCC 113 : 2023 SCC OnLine SC 1076, that the Court should not pass any remarks against a person unless these are absolutely necessary and that too without allowing him to explain his position. It was observed at page 118:- “19. The three principles laid down in State of U.P. v. Mohd. It was observed at page 118:- “19. The three principles laid down in State of U.P. v. Mohd. Naim, 1963 SCC OnLine SC 22: AIR 1964 SC 703 deals with what is required of the court, prior to finding it fit to pass adverse remarks. 19.1. It has been reasserted time and again that remarks adverse in nature, should not be passed in ordinary circumstances, or unless absolutely necessary which is further qualified by, being necessary for proper adjudication  of  the  case  at  hand  [Niranjan Patnaik v. Sashibhusan Kar, (1986) 2 SCC 569 : 1986 SCC (Cri) 196 (two-Judge Bench); Abani Kanta Ray v. State of Orissa, 1995 Supp (4) SCC 169: 1996 SCC (L&S) 175 (two- Judge Bench); A.M. Mathur v. Pramod Kumar Gupta, (1990) 2 SCC 533 (two-Judge Bench).]. 19.2. Remarks by a court should at all times be governed by the principles of justice, fair play and restraint [Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi, (1987) 1 SCC 227 (three-Judge Bench)]. Words employed should reflect sobriety, moderation and reserve. [K.G. Shanti v. United India Insurance Co. Ltd., (2021) 5 SCC 511 : (2021) 2 SCC (L&S) 66] 19.3. It should not be lost sight of and, per contra, always be remembered that such remarks, “due to the great power vested in our robes, have the ability to jeopardise and compromise independence of Judges”; and may “deter officers and various personnel in carrying out their duty”. It further flows therefrom that “adverse remarks, of serious nature, upon the character and/or professional competence of a person should not be passed lightly”. [S.K. Viswambaran v. E. Koyakunju, (1987) 2 SCC 109 : 1987 SCC (Cri) 289]” 21. In the present case, the learned Trial Court had not decided the application but had kept it pending, and the conduct of the petitioners was not necessary to pass the order; therefore, the remarks made by the learned Trial Court were not required for the adjudication of the dispute before the learned Trial Court. The record does not show that any opportunity was given to the petitioners to explain their position before passing adverse remarks against them. The petitioners were held to have neglected to perform their duties and were prevented from appearing in the Court. These remarks will affect the professional competence of the petitioners, and they were condemned unheard. The record does not show that any opportunity was given to the petitioners to explain their position before passing adverse remarks against them. The petitioners were held to have neglected to perform their duties and were prevented from appearing in the Court. These remarks will affect the professional competence of the petitioners, and they were condemned unheard. Petitioners have relied upon Sandeep Kumar (supra), wherein adverse remarks made by the same Presiding Officers against the petitioners were ordered to be expunged. Dealing with a similar situation, the Hon’ble Supreme Court observed in Dushyant Mainali v. Diwan Singh Bora, 2024 SCC OnLine SC 5178 as under: “4. This Court, in the case of same learned Judge of the High Court on various occasions, including in the reported judgment in the case of Neeraj Garg v. Sarita Rani, (2021) 9 SCC 92 and recently in C.A. Nos. 110043-11044 of 2024 titled as “Siddhartha Singh v. Assistant Collector First Class/Sub Divisional Magistrate, vide order dated 24.09.2024, have observed with disapproval the proclivity of the said learned Judge of the High Court in making remarks against the advocates. 5. There is no necessity to reiterate that even the Courts, including the highest court of the Country, are bound by the principle of natural justice. Nobody can be condemned unheard. 6. We are of the considered view that the approach of the High Court in making the observations against the appellant without giving him any opportunity of being heard is totally unsustainable in law.” 22. The State has mentioned in the reply that the application under Section 15A of the SC & ST Act has been disposed of after filing the supplementary charge-sheet. Therefore, no fruitful purpose would be served by retaining the remarks on record. 23. In view of the above, the present petition is allowed, and the remarks made against the petitioners in the order dated 30.01.2025, passed by the learned Trial Court, are ordered to be expunged. 24. The observations made herein before shall remain confined to the disposal of the petition and will have no bearing, whatsoever, on the merits of the case. 25. The present petition stands disposed of, and so are the pending miscellaneous applications, if any.