IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl.MC.No. 2168 of 2006()
1. S.G. RAVEENDRANATH, AGED 46 YEARS,
... Petitioner
Vs
1. STATE OF KERALA, REPRESENTED BY THE
... Respondent
For Petitioner :SRI.P.VIJAYA BHANU
For Respondent :PUBLIC PROSECUTOR
The Hon'ble MR. Justice C.T.RAVIKUMAR
Dated :17/06/2009
O R D E R
C.T. RAVIKUMAR, J.
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CRL. M.C. NO. 2168 OF 2006
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Dated this the 17th day of June, 2009
O R D E R
The petitioner, an Assistant Surgeon attached to the Taluk Head
Quarters Hospital, Chirayinkeezhu, has filed this Cr. M.C. seeking to
expunge certain adverse remarks passed against him by the Additional
District and Sessions Judge (Fast Track Court I), Thiruvananthapuram in
the common judgment in Sessions Case Nos. 207 of 2004 a and 1659 of
2004 dated 16.2.2006. The accused persons in the said cases were charge
sheeted for offences punishable under Sections 323, 325 and 302 read with
Section 34 I.P.C. Since the said cases arose in the course of the very same
transaction, the trial court clubbed and tried the cases together and
disposed of the same by Annexure-A common judgment.
2. The petitioner herein was examined as PW.1 in the aforesaid
cases. Besides him, PWs.2 to 4 were also declared hostile to the
prosecution. The trial court found the accused guilty under Sections 323
and 325 read with Section 34 I.P.C., but found them not guilty under
Crl.M.C. No. 2168/2006 2
Section 302 read with Section 34 I.P.C. and accordingly convicted them
only for offences punishable under Sections 323 and 325 read with
Section 34 I.P.C. However, in the said common judgment, certain adverse
remarks were passed against the petitioner as hereunder:
(i) “But on a mere reading of the evidence
of PW.1 as a whole, it can be clearly seen that
he has deposed utter falsehood before court
probably with a view to help the accused
persons.” (ii) “As stated by me earlier he is not
an ordinary witness. Even then he has no prick
of conscious to say falsehood before court
probably with a view to help the accused
persons.” (iii) “What prompted PW.1 to disown
the statements made by him in Ext.P1 is a matter
to be looked and enquired into by his higher
authorities. He has no inclination to deviate
from the statement given by him in Ext.P1
probably with a view to help the accused
persons.”
The counsel for the petitioner contended that the learned Sessions Judge
was not justified in making the said adverse remarks and comments
having far reaching adverse consequences upon the petitioner who is a
Government doctor. He, therefore, seeks to expunge the said adverse
remarks on various grounds. Firstly, it is contended that the principles of
natural justice have been violated in as much as before passing the above
extracted adverse remarks and comments against the petitioner, he was
not put on notice and no opportunity whatsoever was afforded to him.
Crl.M.C. No. 2168/2006 3
Secondly, it is contended that the aforesaid adverse remarks and
comments made against the petitioner were absolutely unnecessary for the
purpose of taking a decision in the above Sessions Case.
3. It is a settled position of law that before passing comments,
criticism or observations against a party to the proceedings, the said party
has to be given an opportunity of having his say in the matter. The
Honourable Apex Court, time and again, deprecated the practice of
making observations, comments and criticisms, unmindful of the serious
repercussions that may entail such persons without adhering to the
principles of natural justice. To substantiate the contentions, the learned
counsel for the petitioner relied on the decisions of the Honourable Apex
Court in S.K. Viswambaran v. E. Koyakunju, reported in A.I.R. 1987
S.C. 1436 and Testa Setalvad v. State of Gujarat reported in (2004)10
SCC 88. In the decision in S.K. Viswambaran v. E. Koyakunju
reported in A.I.R. 1987 S.C. 1436, paragraph 10 of the decision in State
of Uttar Pradesh v. Mohd. Naim, A.I.R. 1964 S.C. 703 was quoted with
approval and reaffirmed the duty of courts to keep strict adherence to the
principles of natural justice before making any comments, criticisms or
observations against a party in a judgment. In the latter decision, the Apex
Court heavily came down on the practice of making observations,
Crl.M.C. No. 2168/2006 4
comments and criticisms in violation of the principles of natural justice
against persons or authorities in decisions by courts. It is held therein:
“The appellants were not parties in the case
before the High Court. it is beyond
comprehension as to how the leaned Judges in the
High Court could afford to overlook such basic
and vitally essential tenet of the “rule of law” that
no one should be condemned unheard, and risk
themselves to be criticised for injudicious
approach and/or render their decisions vulnerable
for challenge on account of violating judicial
norms and ethics.”
4. This Court also had occasions to consider several such instances
of passing of adverse remarks/comments by the courts below in their
judgments, in violation of the principles of natural justice. Relying on
precedents of this Court as also that of the Honourable Apex Court, in all
such occasions this Court interfered with such unjustifiable actions and
heavily deprecated such injudicious approach. (see the judgment of this
Court in Nandakumaran v. State of Kerala, reported in 2001(2) K.L.T.
500.) In short, it is now a settled position that no one should be
condemned unheard. In this case, indisputably the petitioner was not
given any notice or heard in the matter by the trial court before passing the
above extracted adverse remarks against him in the judgment. The
petitioner is a doctor. To say that he is a person unscrupulously telling
untruth would definitely have very serious repercussions in future in his
Crl.M.C. No. 2168/2006 5
personal and professional life. It is evident from Annexure-A judgment
that adverse remarks were passed therein to the effect that the petitioner
who was examined as PW.1 had deposed utter falsehood before the court
probably with a view to help the accused persons. In another portion of
the judgment, it was observed that the petitioner herein is not an ordinary
witness and that he had no prick of conscious to say falsehood before the
court , probably with a view to help the accused persons. What is more
injudicious is the remark made in paragraph 11 of Annexure-A judgment,
viz., “What prompted PW.1 to disown the statements made by him in
Ext.P1 is a matter to be looked and enquired into by his higher authorities
and that he has no inclination to deviate from the statement given by him
in Ext.P1 probably with a view to help the accused persons”. The above
extracted adverse remarks will undoubtedly portrait the petitioner as a man
who unscrupulously told untruth before the court and it would necessarily
entail very serious repercussions in future. In the totality of the
circumstances, I am inclined to accept the contentions of the counsel for
the petitioner that the above extracted adverse remarks made by the
learned Sessions Judge in Annexure-A judgment are liable to be
expunged.
5. In fact, in view of my finding as regards the first submission of
Crl.M.C. No. 2168/2006 6
the counsel for the petitioner, it is unnecessary to deal with the second
submission. The said submission was that the above extracted remarks
and comments passed against the petitioner by the learned Sessions Judge
are absolutely unjustifiable and unnecessary for deciding the cases covered
by Annexure-A judgment. In the decision in S.K. Viswambaran Case
(supra), it was held by the Honourable Apex Court as hereunder:
“We have also to point out a grievous
procedural error committed by the High Court.
Even assuming for argument’s sake that for
expunging the remarks against respondents 2 and
3 the conduct of the appellant required scrutiny
and merited adverse comment, the principles of
natural justice required the High Court to have
issued notice to the appellant and heard him
before passing adverse remarks against him if it
was considered necessary. By its failure the High
Court has failed to render elementary justice to
the appellant.”
Suffice it to say that even in a case where making of observations,
comments and criticisms in a judgment against a person or authority are
found absolutely essential and necessary for the purpose of deciding the
case, before doing so, an opportunity of hearing must be afforded to the
concerned party. Hence, consideration as to whether the conduct of the
petitioner herein as a witness required scrutiny and merited adverse
comments or remarks is unnecessary and any conclusion thereon cannot
Crl.M.C. No. 2168/2006 7
cure the grievous procedural error committed by the court below.
6. In view of the above discussions, I am of the view that the above
extracted adverse remarks passed by the learned District and Sessions
Judge (Fast Track Court I), Thiruvananthapuram in Annexure-A common
judgment dated 16.2.2006 in S.C. N of 207 of 2004 and 1659 of 2004 are
liable to be expunged. In the result, the adverse remarks made by the
said court against the petitioner herein in Annexure-A judgment shall
stand expunged and deleted and consequently they must be treated as
having never existed or been part of the said judgment.
The Crl.M.C. is accordingly allowed.
(C.T. RAVIKUMAR, JUDGE)
sp/
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C.T. RAVIKUMAR, J.
CRL. M.C. NO. 2168/2006
O R D E R
17th June, 2009
Crl.M.C. No. 2168/2006 9