Vishnu Pratap Singh Chauhan, J. - The applicant has filed this petition under Section 482 of the Code of Criminal Procedure being aggrieved by the order dated 16/07/2007 passed in R.T. No.803/2004 by Chief Judicial Magistrate, Bhopal in which learned trial Court has made some remark about the direction for taking action against the applicant.

2. The facts giving rise to this petition, in short, are that Police Station, Kohefiza, Bhopal registered Crime No.505/2001 under Sections 419, 420, 467, 468, 471, 120- B and 182 of IPC. In that crime number the applicant investigated some part of the matter in connection with Fauzia Usman alias Monika Bedi and after conducting the investigation submitted supplementary charge sheet against the then accused Fauzia Usman alias Monika Bedi. During trial, recorded his own statement before the trial Court as P.W.40 (S.K. Shukla, DSP). Learned trial Court i.e. Chief Judicial Magistrate after recording the evidence of all the witnesses delivered a judgment on 16/07/2007 and in the said judgment while evaluating the evidence found so many discrepancies committed during investigation and owing to that latches extended the benefit of doubt to the accused Fauzia Usman alias Monika Bedi and made certain finding about the latches committed by the applicant during investigation and finally in para-87 of the judgment along with other investigating persons mentioned this fact that applicant, the then DSP-S.K. Shukla, did not perform the duties and liabilities properly, hence committed negligency and irregularities during investigation and held that the applicant did not try to bring the actual truth on record, but, indirectly provided benefit to the accused, thus, expecting from the department to take hard action against the persons who committed latches in investigation for that the accused took benefit of that latches.

3. Being aggrieved by that remark, the applicant has filed this petition on the ground that adverse remark contained in paras 18, 28, 32, 57, 59, 87 on the method of investigation as well as direction contained in para-87 of the judgment to taking action against the applicant is wholly illegal, unjust, unwarranted and legally unsustainable. The applicant with due diligence investigated the matter and remark made in the impugned judgment is punitive in character. It is also submitted that the applicant has not been provided opportunity of explaining the same. Learned trial Court exceeded its jurisdiction which is unwarranted. Learned counsel for the applicant has placed reliance upon the judgments passed in the cases of State of U.P. Vs. Mohoammad Naim, (1964) AIR SC 703, Govindaraj Shetty Vs. State of Karnataka, (1980) CriLJ 879 , Iresh Shyam Ali Vs. State of Nagaland and another, (1986) CriLJ 569, S.K. Viswambaran Vs. E. Koyakunju and others, (1987) AIR SC 1436, Panchanan Parida Vs. Sub Divisional Judicial Magistrate, Balasore, (1991) CriLJ 3037 , B.V. Naik Vs. State of Karnataka, (1992) CriLJ 3441 , Zahira Habibulla H. Sheikh and another Vs. State of Gujarat and others, (2004) 4 SCC 158 and Testa Setalvad and another Vs. State of Gujarat and others, (2004) 10 SCC 88

4. Having heard learned counsel for the parties and perused the citations placed before this Court.

5. HonBle Apex Court in the case of Mohoammad Naim (supra), opined that if any adverse remarks made by the Court against Police force of State and Government feels aggrieved by that remarks, can apply for expunging them under Section 56 (1)(a) of Cr.P.C. 1898. In this case the Court condemning the entire Police force of the State. In that respect, Honble Apex Court held that remark not justified on the facts of the case nor necessary for its disposal and expunged the remarks.

6. High Court of Karnataka in the case of Govindaraj Shetty (supra) held that before passing the adverse remarks the principles of natural justice demand that a party should be heard before any remark are made against him. In the case of Itesh Shyam Ali (supra), Gauhati High Court opined that the person to whom adverse remark was passed should have been provided opportunity of hearing and if not giving opportunity, expunged the remark.

7. In S.K. Viswambaran (supra), Honble Apex Court in para-14 :

"14. Yet another serious infirmity contained in the impugned order is that the High Court has failed to bear in mind the well-settled principles of law laid down by this Court in more than one case that should govern the Courts before disparaging remarks are made against persons or authorities whose conduct comes into consideration before Courts of law in cases arising before them for decision. In State of U.P. v. Mohd. Naim, (1964) 2 SCR 363 ,374 equal to AIR 1964 S.C. 702 it was held as follows:

"If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their func- tions 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 Magis- trates 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 con- duct 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. It has also been recognised that judicial pronounce- ments must be judicial in nature, and should not normally depart from sobriety, moderation and reserve".

This ratio has been followed in R.K. Lakshmannan v. A.K. Srinivasan, (1975) AIR SC 1741 1976 1 SCR 204 and Niranjan Patnaik v. Sashibhushan Kar and Anr., (1986) 2 SCC 569 ( to which one of us was a party). Judged in the light of the above tests, it may be seen that none of the tests is satis- fied in this case. It is indeed regrettable that the High Court should have lightly passed adverse remarks of a very serious nature affecting the character and professional competence and integrity of the appellant in purported desire to render justice to respondents 2 and 3 in the petition filed by them for expunction of adverse remarks made against them.

8. Orissa High Court in the case of Panchanan Parida (Supra) has held that while passing remark against any person in the judgment it must be borne in mind that in expressing their opinion, the Judges and Magistrate must be guided by consideration of justice, fairplay and restraint and the remarks shall not lack judicial poise, moderation and sobriety. Any structure by a Judge or a Magistrate in their judgments against any person or authority must satisfy three tests; firstly, the person or authority whose conduct is in question is before the Court or has an opportunity of explaining or defending himself; secondly, there is evidence on record bearing on that conduct justifying the remarks; and thirdly, it is necessary for the decision of the case as an integral part thereof to animadvert on that conduct. Thus, uncalled for, undeserving, unjustified or unnecessarily derogatory or disparaging remarks should be avoided by Judges and Magistrates.

9. In the case of B.V. Naik (supra), learned Additional Sessions Judge while convicting the accused made certain remarks about the honesty and integrity of the Investigating Officer, in that situation, Karnataka High Court held that without having been any opportunity to meet those serious allegations against him should not pass such type of adverse remarks without having been provided opportunity of hearing to the party.

10. In the case of Testa Setalvad and another (supra), Honble Supreme Court held that remarks must be relevant to the subject matter of adjudication and persons should be provided opportunity to rebut that remarks, principles of natural justice to be observed.

11. Perused the judgment. Record of the trial Court as well as appellate Court is available.

12. After going through the whole records, it is reflected that Fauzia Usman alias Monika Bedi impersonated herself as Fauzia Usman wife of Mohd. Usman Khan and filled up the application and after signing it submitted forged documents before Passport Officer. The applicant had conducted investigation. It is alleged that Fauzia Usman alias Monika Bedi fraudulently entered all the particulars for getting passport in the name of Fauzia Usman. The original documents seized from the Passport Office and during trial marked application for passport as Ex.P/23, ration card as Ex.P/12, affidavit Ex.P/79 and letter Ex.P/29. The applicant examined himself before the trial Court as P.W.40 and stated before the Court that he obtained an original signature and writing of Fauzia Usman alias Monika Bedi exhibited as Ex.P/109 to P/133 and also collected the original signature of Fauzia Usman alias Monika Bedi mentioned in the order sheet of the trial Court, received the order sheet exhibited as Ex.P/96 to P/108 and sent all these documents for examination before the handwriting expert. Handwriting expert who examined all these documents recorded his evidence before the trial Court as P.W.38. This witness categorically stated that handwriting and signatures on the questioned documents and handwriting and signatures on the admitted documents when matched, no definite opinion can be given.

13. When this Court minutely observed the documents as well as the statements then found that the applicant did not send original documents Ex.P/23, P/79, P/25, P/12 for examination to the handwriting expert Anil Shrivastava as the applicant sent photocopies of the original documents, therefore, handwriting expert could not reach definite opinion after matching the questioned and admitted documents. The applicant who is having 25 years experience of investigation, investigated so many cases, knows this fact well that whenever questioned handwriting is sent for matching with admitted handwriting, the original handwriting and signatures has to be sent to the handwriting expert not photocopies of that documents. In photocopies handwriting expert cannot examine depth, space, fluency and stoppage during examination of handwriting because it cannot be found in the photocopies.

14. This Court is of the view that the applicant in such type of sensitive and burning cases in which accused belong to a high personality should be investigated very carefully and it cannot be said that the applicant was not in knowledge that if he sent photocopies for examination of handwriting, the handwriting expert would not provide a definite opinion after matching because he is having lot of experience of investigation. At this stage, this Court is not inclined to express definite opinion that whether the applicant committed such lapses to provide the benefit to the then accused- Fauzia Usman alias Monika Bedi knowingly or not. But, it is clearly reflected after going through the whole evidence recorded during trial and the documents produced in evidence that the applicant sent photocopies of questioned documents for matching handwriting and signatures of the accused. No doubt, there is latches, if the trial Court during appreciation and evaluating the evidence pointed out such lapses not committed any error because the benefit of that lapses is extended to the accused.

15. Therefore, this Court is of the firm view that whatever trial Court pointed out in the judgment, the same cannot be expunged from the judgment and the Court lastly not took any action against the applicant but expected from the Investigating Agency and Government may take action so that this type of latches would not be repeated further for providing benefit to the accused because the State is under duty bound to protect the citizens life, liberties and property and to protect the undue miscarriage of justice and not to protect the accused from the offences if he committed an offence. Investigation that has been conducted in a manner which helped the accused persons should not be protected. State should step in to prevent undue miscarriage of justice and prevent to protect the accused. If deficiency in investigation or prosecution is visible or can be perceived by lifting the veil trying to hide the realities or covering the obvious deficiencies would have to deal with the same with an iron hand. Learned appellate Court also pointed out the latches and lacuna left by the Investigating Officer and also affirmed the direction issued by the trial Court in connection with the latches and lacuna in its judgment.

16. Considering all these facts, this Court finds that the applicant has committed a material latches and on that latches indirectly he extended the benefit to the accused which the trial Court directly pointed out. In these circumstances, this Court does not find it fit to expunge the expectation expressed by learned trial Court from the State.

17. In view of aforesaid discussions, this petition is bereft of merit and the same is hereby dismissed. No cost.