STATE OF PUNJAB AND ANR.versusM/S. SHIKHA TRADING CO.

                 [2023] 11 S.C.R. 643 : 2023 INSC 773



                            CASE DETAILS

                    STATE OF PUNJAB AND ANR.
                                      v.
                     M/S. SHIKHA TRADING CO.
                     (Civil Appeal No. 2453 of 2011)
                            AUGUST 25, 2023
           [ABHAY S. OKA AND SANJAY KAROL, JJ.]

                              HEADNOTES

      Issue for consideration: Writ petition was filed by respondent against
the illegal sealing of its shop by the officers of Department of Excise and
Taxation. While disposing off the petition, High Court whether justified
in passing the impugned directions for registering criminal investigation
against the Assistant Excise and Taxation, Commissioner, holding that he
had filed an affidavit taking a false defence.
     Practice and Procedure – Adverse remarks – Expunction of:
      Held : Remarks adverse in nature, should not be passed in ordinary
circumstances, or unless absolutely necessary for proper adjudication of
the case at hand – Impugned directions were passed upon an incorrect and
erroneous appreciation of the record – The record does not support the prime
facie view taken in regard to ante-dating or interpolation of the despatch
register – The register records multiple entries in different hand, script, and
language – There is neither any cutting, overwriting nor any interpolation –
A glance at the relevant page of the despatch register makes it clear that the
entry at the said page starts from Sl No.2026 and ends at Sl No.2043 and
the despatch of the communication in question to the respondent falls at Sl
No. 2032 which is in the middle of the page – Therefore, the question of any
interpolation/tampering does not arise – The concerned Officer was not to be
benefitted in any manner in ante-dating the communication dtd.21.10.2010,
as the said date was still beyond the period of 10 days initially granted by
the High Court to unseal the premises of the respondent, vide order dtd.
27.09.2010 – Impugned directions totally misplaced, more so, when the
                                     643
644          SUPREME COURT REPORTS                        [2023] 11 S.C.R.


endeavour of the Officer was to bring the offenders to book and save evasion
of duty, mandatorily required to be paid by the assessee – Observation made
and the directions issued by the High Court vide impugned order, expunged
– Proceedings initiated pursuant thereto, if any, including the FIR stand
closed with immediate effect. [Paras 9, 10, 12, 13, 20 and 21]
     Practice and Procedure – Adverse remarks – Tests laid down in
State of UP v. Mohammad Naim (four-Judge Bench) – Non-fulfilment of:
      Held : Order of the High Court does not qualify the tests laid down by
this Court in State of UP v. Mohammad Naim in regards to passing remarks
against a person, whose conduct is being scrutinised – Neither was the
officer made party to the dispute, nor was he given an opportunity to show
cause, and further, nothing on record reflected the officer holding an animus
against the respondent, before such adverse directions were passed against
him – Remarks by a court should at all times be governed by the principles
of justice, fair play and restraint – Words employed should reflect sobriety,
moderation and reserve – Impugned directions issued by the High Court in
registration of criminal investigation against an officer against the settled
principles of law have a demoralizing effect on the well-meaning officers
of the State. [Paras 14, 16, 18.2 and 20]
     Practice and Procedure – Adverse remarks – Power to expunge –
Exercise of, by the High Court and Supreme Court – Discussed.[Paras
19.1-19.3.1]

       LIST OF CITATIONS AND OTHER REFERENCES

     State of UP v. Mohammad Naim AIR 1964 SC 703 : [1964] SCR
363 – relied on.
     R. K. Lakshmanan v. A. K. Srinivasan (1975) 2 SCC 466 : [1976] 1 SCR
204; S. K. Viswambaran v. E. Koyakunju (1987) 2 SCC 109 : [1987] 2 SCR
501; Samya Seet v. Shambhu Sarkar (2005) 6 SCC 767 : [2005] 2 Suppl.
SCR 686; State of Madhya Pradesh v. Narmada Bachao Andolan (2011)
12 SCC 689 : [2011] 11 SCR 678; K. G. Shanti v. United Indian Insurance
Co. Ltd and Ors. (2021) 5 SCC 511; Niranjan Patnaik v. Sashibhusan Kar
(1986) 2 SCC 569 : [1986] 2 SCR 470; Abani Kanta Ray v. State of Orissa
(1995) 4 Suppl. SCC 169 : [1995] 4 Suppl. SCR 333; A. M. Mathur v.
                  STATE OF PUNJAB AND ANR. v.                        645
                    M/S. SHIKHA TRADING CO.

Pramod Kumar Gupta (1990) 2 SCC 533 : [1990] 2 SCR 110; Shivajirao
Nilangekar Patil v. Mahesh Madhav Gosavi (1987) 1 SCC 227 : [1987] 1
SCR 458; Dr. Raghubir Saran v. State of Bihar AIR 1964 SC 1 : [1964]
SCR 336; Panchanan Banerji v. Upendra Nath Bhattacharji AIR 1927 All
193; Manu Sharma v. State (NCT of Delhi) (2010) 6 SCC 1 : [2010] 4 SCR
103 – referred to.
    M/s Shikha Trading Co. v. The State of Punjab and Anr. CWP No.
19909 of 2010 dated 08.12.2010 – referred to.

      OTHER CASE DETAILS INCLUDING IMPUGNED
             ORDER AND APPEARANCES

     CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2453 of 2011.
     From the Judgment and Order dated 08.12.2010 of the High Court of
Punjab & Haryana at Chandigarh in CWP No. 19909 of 2010.
     With
     Civil Appeal No. 2494 of 2011.
     Appearances:
      Aishwarya Bhati, ASG, Maninder Singh, Sr. Adv., Nikhil Jain, Rishi
Sehgal, Keshavam Chaudhri, Ms. Arveen Sekhon, Ms. Hargun Sandhu, Ms.
Nikita Gill, Ms. Divya Jain, Ms. Monica Dhingra, Ajay Sabharwal, Ajay
Pal, Karan Sharma, Raktim Gogoi, Gautam Awasthi, Ayush Choudhary,
Devanshu Yadav, Sameer Pandey, Sahil Sharma, Advs. for the appearing
parties.
      JUDGMENT / ORDER OF THE SUPREME COURT
                             JUDGMENT
     SANJAY KAROL, J.
     CIVIL APPEAL NO.2453 OF 2011
      1. The instant appeal has been filed by the State of Punjab against
the judgment dated 08.12.2010 in CWP No. 19909 of 2010 by which
the High Court of Punjab and Haryana, Chandigarh directed the Senior
Superintendent of Police, Ludhiana to have a criminal case registered and
646              SUPREME COURT REPORTS                       [2023] 11 S.C.R.


duly investigated against an officer of the State, i.e., the Assistant Excise
and Taxation, Commissioner (AETC), Ludhiana – I.
       BACKGROUND
      2. Shikha Trading Company1 preferred a Writ Petition against the
illegal sealing of its shop by the officers of the Department of Excise and
Taxation, Punjab on 13.09.2010.
       3. The said petition being CWP No. 19909/2010, stood disposed of with
two material directions; one, that since during the pendency of the petition,
the shop (premises) of STC were de-sealed, thereby rendering the petition
infructuous; and two, that Rishi Pal Singh, an officer of the State posted as
Assistant Excise Taxation Commissioner (AETC Ludhiana-I) had filed an
affidavit taking a false defence. Hence proceedings, criminal in nature, be
initiated against him with the registration of FIR, with subsequent submission
of the Action Taken Report to the Court within a period of three months.
     4. The present appeal is directed against the second part of the order
which is extracted hereinunder :-
       “Case of the petitioner is that team of the department visited the
       petitioner’s premises on 13.09.2010 and illegally sealed the same. It is
       not disputed that the said team had visited the premises but sealing has
       been denied. Proceedings at the time of visit have not been produced.
       There is no reason for the petitioner to falsely allege sealing which
       is also shown in the photograph. It is not the case of the AETC that
       the petitioner has any animus against him. Thus, prima facie, it has
       to be held that sealing of the premises was by or at the instance of the
       department. It is further that the order an representation purporting to
       be dated 21.10.2010 was passed much later than the said date and has
       been antedated and the entry in the despatch register dated 21.10.2010
       has been forged. If order had been passed and conveyed on 21.10.2010,
       there would have been no occasion for the petitioner to move this Court.
       Ink used, use of English language only for one entry as against all other
       entries in vernacular and pattern of entries in the despatch register


1     Respondent herein; hereinafter referred to as ‘STC’
                 STATE OF PUNJAB AND ANR. v.                               647
         M/S. SHIKHA TRADING CO. [SANJAY KAROL, J.]

     create serious doubt about genuineness thereof. Men may tell lie but
     circumstances may not. Action of the AETC in taking an apparently
     false stand cannot be ignored. Since these actions of or at the instance of
     Mr. Rishi Pal Singh, AETC, Ludhiana I constitute cognizable offences,
     we direct SSP Ludhiana to get a criminal case registered and have the
     investigation conducted in accordance with law within three months
     from the date of receipt of a copy of this order. Further action may
     also be taken as per findings of investigation. Compliance report with
     copy of report of investigation may be forwarded to this Court apart
     from report of investigation being submitted to the concerned Court.
     It is made clear that observations made herein are prima facie and will
     not affect final conclusion in investigation or trial.
     THE PRESENT APPEAL
      5. Here only, we may clarify that this Court has not dealt with or made
any observation in regard to the alleged illegal actions of STC in the evasion
of tax, an infraction of the provision of Punjab Value Added Tax Act 2005.
     6. Clarifying further, the learned counsel appearing for STC
(respondent herein) has also not opposed the instant petition in relation to
observations, subject matter of the present appeal. It is in this background;
we are proceeding to adjudicate on the subject matter of the appeal.
      7. Learned senior counsel appearing for the aggrieved party(s) has
urged, amongst other grounds, that the impugned directions were passed
without affording an opportunity to the concerned officer to explain the
relevant facts and circumstances; the impugned directions rely only on
assertions made by the respondent without any evidence to substantiate the
same; the entry in the despatch register, more particularly the language in
which it is made, reflects the document which is to be conveyed i.e., if the
original document is in English, the entry corresponding thereto shall also be
in English; passing of such an order against an officer of the State who has
launched a campaign against tax evaders, results in having a demoralizing
effect on honest officers.
      8. Before us, the respondent has nothing adverse to state against any
functionary of the State of Punjab, much less the aggrieved officer. There
is no opposition to the present appeal.
648           SUPREME COURT REPORTS                          [2023] 11 S.C.R.


      9. Having perused the records as produced in Court, we are of the
considered view that this matter needs to put a quietus to. The record, we are
satisfied, does not support the prime facie view taken by the court below, in
regard to ante-dating or interpolation of the despatch register. The register
records multiple entries in different hand, script, and language.
       10. There is no basis for the High Court to arrive at such a conclusion.
It is again a matter of record that for several reasons, various officials at the
clerical level employed in the department are making entries in the despatch
register, therefore, variation in ink and handwriting is bound to occur. A glance
at the entries made in the register for the current as well as previous years
would show that any communication, subject matter of which is in English, is
usually recorded in English and whenever such a communication is in Punjabi
language, the entries are accordingly recorded in Punjabi. Moreover, the entries
have been made et seriatim and no anomaly, whatsoever, could be found with
the same. There is neither any cutting, overwriting nor any interpolation, of
any sort. A glance at the relevant page of the despatch register would further
make it clear that the entry at the said page starts from Sl No.2026 and ends
at Sl No. 2043 and the despatch of the communication in question to the
respondent falls at Sl No. 2032 which is in the middle of the page. Therefore,
the question of any interpolation/tampering does not arise, even remotely so.
      11. In view thereof, the doubt as to the genuineness of the register does
not stand on firm ground and must be disregarded. It is also to be noted that
the record in no way reflects the concerned officer to have any prior disposition
or animus against the respondent.
      12. There is no gainsaying in stating that officer was not to be benefitted
in any manner in ante-dating the communication dated 21.10.2010, as the said
date was still beyond the period of 10 days initially granted by the High Court
to unseal the premises of the respondent herein, vide order dated 27.09.2010
of which fact, the High Court failed to take notice.
      13. In our considered view, the conclusions arrived at, as re-produced
(supra), are based on mere surmises and/or bald assertions, without any
material attesting to the conclusions or regard for consequences. The directions
were totally misplaced, more so, when the endeavour of the officer was to
bring the offenders to book and save evasion of duty, mandatorily required
to be paid by the assessee.
                  STATE OF PUNJAB AND ANR. v.                              649
          M/S. SHIKHA TRADING CO. [SANJAY KAROL, J.]

      14. Further, we notice the directions of the High Court not to be in
the light of settled principles of law, for the order does not qualify the tests
laid down by this Court in State of UP v. Mohammad Naim2 (four-Judge
Bench), in regards to passing remarks against a person, whose conduct is
being scrutinised before them i.e., “whether the party whose conduct is in
question is before the Court or has an opportunity of explaining or defending
himself; whether there is evidence on record bearing on that conduct,
justifying the remarks; whether it is necessary for the decision of the case,
as an integral part thereof, to animadvert on that conduct.”
     15. These principles stand reiterated and followed in various judgments
such as R. K. Lakshmanan v. A.K. Srinivasan3 (three-Judge Bench);
S.K. Viswambaran v. E. Koyakunju4 (two-Judge Bench); Samya Seet
v. Shambhu Sarkar5 (three-Judge Bench); State of Madhya Pradesh
v. Narmada Bachao Andolan6 (three-Judge Bench) and K. G. Shanti v.
United Indian Insurance Co. Ltd and Ors7 (two-Judge Bench).
      16. It is apparent from record that, neither was the officer made
party to the dispute, nor was he given an opportunity to show cause, and
further, nothing on record reflected the officer holding an animus against
the respondent, before such adverse directions were passed against him.
      17. By way of this appeal, we have been asked to exercise powers,
inherent in this Court, to expunge remarks reproduced supra against the said
officer, from record. It would be appropriate to consider the various principles
in respect of passing adverse remarks against an officer- be it judicial, civil
(as in the present case) or police or army personnel, and expunction thereof.
     18. The three principles laid down in Naim (supra) deal with what is
required of the court, prior to, finding it fit to pass adverse remarks.
     18.1 It has been reasserted time and again that remarks adverse in
nature, should not be passed in ordinary circumstances, or unless absolutely


2   AIR 1964 SC 703
3   (1975) 2 SCC 466
4   (1987) 2 SCC 109
5   (2005) 6 SCC 767
6   (2011) 12 SCC 689
7   (2021) 5 SCC 511
650             SUPREME COURT REPORTS                               [2023] 11 S.C.R.


necessary which is further qualified by, being necessary for proper
adjudication of the case at hand8.
     18.2 Remarks by a court should at all times be governed by the
principles of justice, fair play and restraint9. Words employed should reflect
sobriety, moderation and reserve.10
      18.3 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 jeopardize 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”.11
     19. Keeping the above principles in mind, the power to expunge
remarks may be exercised by the High Court and this Court: –
    19.1 With great caution and circumspection, since it is an undefined
power12;
     19.2 Only to remedy a flagrant abuse of power which has been made
by passing comments that are likely to cause harm or prejudice13;
     19.3 In respect of High Courts exercising such power, it has been
observed:
     19.3.1 The High Court, as the Supreme Court of revision, must be
deemed to have power to see that courts below do not unjustly and without
any lawful excuse take away the character of a party or of a witness or of
a counsel before it.14



8     Niranjan Patnaik v. Sashibhusan Kar (1986) 2 SCC 569, two-Judge Bench; Abani
      Kanta Ray v. State of Orissa (1995) Supp (4) SCC 169, two-Judge Bench; A.M.
      Mathur v. Pramod Kumar Gupta (1990) 2 SCC 533; two-Judge Bench
9     Shivajirao Nilangekar Patil v. Mahesh Madhav Gosavi, (1987) 1 SCC 227; three-
      Judge Bench
10    K.G Shanti (supra)
11    E. Koyakunju (supra)
12    Dr. Raghubir Saran v. State of Bihar, AIR 1964 SC 1; two-Judge Bench
13    Dr. Raghubir Saran (supra)
14    Panchanan Banerji v. Upendra Nath Bhattacharji [AIR 1927 All 193, as referred to in
      Sashibhusan Kar (supra)
                   STATE OF PUNJAB AND ANR. v.                                 651
           M/S. SHIKHA TRADING CO. [SANJAY KAROL, J.]

      19.3.2 Though in the context of Judicial officers, this Court has
observed that “The role of High Court is also of a friend, philosopher and
guide of judiciary subordinate to it. The strength of power is not displayed
solely in cracking a whip on errors, mistakes or failures; the power should
be so wielded as to have propensity to prevent and to ensure exclusion of
repetition if committed once innocently or unwittingly. “Pardon the error but
not its repetition”. This principle would apply equally for all services. The
power to control is not to be exercised solely by wielding a teacher’s cane.1516
      20. The impugned directions issued by the High Court in registration
of criminal investigation against an officer, unquestionably against the
above-referred settled principles of law, having a demoralizing effect on the
well-meaning officers of the State. It is clear that the impugned directions
were passed upon an incorrect and erroneous appreciation of the record.
      21. Consequent to the above discussion, we find it a fit case to, in
accordance with the principles summarised hereinabove, expunge the
observation made and the directions issued by the High Court extracted
supra (para 5) vide impugned order dated 08.12.2010 in CWP No. 19909
of 2010 titled as M/s Shikha Trading Co. v The State of Punjab and Anr.
Further, proceedings initiated, if any, pursuant thereto, including the FIR
shall stand closed with immediate effect.
     22. The appeal of the State is allowed and the connected appeal is
disposed of in the aforesaid terms.
      23. Interlocutory applications if any, shall stand disposed of.
      24. No costs.


Headnotes prepared by:                                  Appeal of State allowed and
Divya Pandey                                           connected appeal disposed of.




15 Manu Sharma v. State (NCT of Delhi), 2010 6 SCC 1; two-Judge Bench
16 ‘K’ A Judicial Officer (supra)