SUPREME COURT OF INDIA

Before:- G.B. Pattanaik and R.P. Sethi, JJ.

Criminal Appeal No. 438 of 1998, with Cri. A. No. 439 of 1998. D/d. 27.1.2000.

Bhagwan Sahai Khandelwal - Appellant

Versus

State of Rajasthan and another - Respondents

Natural justice - Expunction of observations - Serious allegation against Magistrate - Learned Judge not only accepted the allegation but also directed for instituting a departmental enquiry against the Magistrate concerned after placing him under suspension - No opportunity given to him - Observation and direction on the basis of allegations made in the petition cannot be sustained - Directions and observations expunged.

[Para 1]

JUDGMENT

G.B. Pattanaik, J. - This appeal is by the concerned Magistrate, who had not taken cognizance under Section 307 Indian Penal Code though charge-sheet had been filed. We are not entering into the merits of the conclusion of the learned Judge as to whether the Magistrate could have refused to take cognizance under Section 307 Indian Penal Code We are examining only the correctness and propriety of the order of the learned Judge in making remarks against the Magistrate on the basis of what was stated in a petition filed before the learned Chief Justice which was ordered to be treated as a petition under Section 482 of the Code of Criminal Procedure. It is no doubt true in that petition, serious allegations had been made against the Magistrate, who is the appellant before us. But without even offering an opportunity to the Magistrate in the proceeding, and without having his say in the matter, the learned Judge could not have jumped to the conclusion that it clearly appears that the allegations against the Magistrate are substantiated, and, therefore the order passed by the Magistrate should be interfered with. Not only that the learned Judge has accepted the allegations made but also directed for instituting a departmental enquiry against the Magistrate concerned, after placing him under suspension. This observation and direction of the learned Judge on the basis of allegations made in a petition cannot be sustained, and we have, therefore, no hesitation to expunge the so-called observation and direction of the learned Judge while passing order on 6-11-1997 in Criminal Miscellaneous Petition No. 520/1996. So far as the legality for the order passed by the learned Judge is concerned, it remains to be examined in the Criminal Appeal No. 439/1998 which has been filed by the accused Bhagirath, which is pending before this Court.

2. The present appeal is allowed to the extent indicated above.

Appeal allowed.