PETITIONER: S.K. VISWAMBARAN Vs. RESPONDENT: E. KOYAKUNJU & ORS. DATE OF JUDGMENT03/03/1987 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) NATRAJAN, S. (J) RAY, B.C. (J) DUTT, M.M. (J) CITATION: 1987 AIR 1436 1987 SCR (2) 501 1987 SCC (2) 109 JT 1987 (1) 680 1987 SCALE (1)506 ACT: Criminal Procedure Code, 1973--s.482--Sessions Judge passed strictures against police officials concerning inves- tigation--High Court approached for expunction of adverse remarks--Scope of Inquiry--Limited only to the bona fides of action of Petitioners before High Court--Adverse remarks made by High Court against another Police Officer conducting investigation without hearing him--Principles of natural justice--Opportunity to be given before adverse remarks made--Tests for making adverse remarks--What are--Whether followed in the instant case-High Court's order--Validity of. HEADNOTE: The Sessions Judge while acquitting the accused of the charge under s.302 IPC entertained serious doubts about PW 16 (Respondent No. 2.), the Inspector of Police, who partly investigated the case, carrying out the cellophone tape test to lift any fibres of coir sticking to the palms of the deceased and sending the tapes to the Forensic Science Laboratory and the bona fides of the exercise. On the basis of the suspicions features mentioned in his judgment, the Sessions Judge made severe adverse remarks against PW 16 (Respondent No. 2.) DW 2 (Respondent No. 3) and another policeman and observed that the conduct of these officials was highly open to suspicion, that a full-fledged enquiry should he held against them and that "otherwise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment." The Inspector PW 16 (Respondent No. 2) and the Head Constable PW 2 (Respondent No. 3) filed petitions before the High Court for expunging the adverse remarks made against them. A Single Judge without making any examination of the conduct of the petitioners before him and without consider- ing whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant, a Deputy Suptd. of Police (PW 17), who had also investigated the case from 26.11.80 to 5.11.81, in the dock for having failed to place before the Court the scientific materials which PW 16 502 (Respondent No. 2) had obtained in the course of investiga- tion to find out whether the death of the deceased was due to suicide or homicide. The learned judge observed that PW 16 (Respondent No. 2) and DW 2 (Respondent No. 3) had acted in a blemishless manner and the report of the Forensic Science Laboratory had been obtained through bonafide inves- tigative process and it was the appellant who had schemingly kept back the crucial recordS from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncer- tain terms. Stung by the remarks made against him without even a hearing, the appellant preferred the instant appeal to seek expunction of the remarks. Allowing the Appeal, HELD: 1. The adverse remarks against the appellant in the order of the High Court under appeal will stand ex- punged. [512E] 2. When PW 16 and DW 2 moved the High Court for expung- ing the adverse remarks against them the scope of the en- quiry was confined to the bona fides of their action in the investigation proceedings and whether the Sessions Judge was justified in drawing adverse inference against them on the basis of the suspicious features catalogued by him. The High Court was not dealing with an appeal against the acquittal of the accused and there was no need or occasion for the High Court to go into the conduct of the appellant. The enquiry was only touching upon the conduct of PW 16 and DW 2. Furthermore the High Court had completely overlooked the fact that the appellant ceased to be in charge of the case on 5.1.81. Thereafter the investigation of the case was taken charge of by PW 18 and still later by PW 19 and ac- cording to DW 2 the report from the Forensic Science Labora- tory was sent to the Crime Detachment only on 7.1.81 whereas the appellant ceased to be in charge of the case on 5.1.81 itself. It, therefore, passes one's comprehension as to how the appellant can be accused of having wilfully suppressed materiai documents from the notice of the Court in order to secure a conviction unjustify against the accused in a murder case. [510D-G] 3. The High Court has not applied its mind to the series of suspicious features noticed by the Sessions Judge to draw an adverse inference against PW 16 and DW 2 in conducting theso-called cellophone tape test and sending the tape to the Forensic Science Laboratory for its report. The Judge had taken it for granted that PW 16 had actually 503 carried out a cellophone tape test, that in carrying out such a test he was wedded to scientific methods of investi- gation, that he and DW 2 had acted fairly and squarely in trying to find out the real cause of the death of the de- ceased and that it was the appellant who had an aversion to the use of scientific methods in investigation of crimes and that the appellant had purposely concealed materials which were favourable to the accused in order to secure a convic- tion at any cost. The Judge had failed to see that as a matter of fact the accused was not kept in the dark regard- ing the cellophone tape test that was deemed to have been done but on the other hand he had full information of the test and its result, and it was on account of that he was able to summon police officials to figure as defence wit- nesses and police records as defence exhibits. The High Court had thus completely misdirected itself in its consid- eration of the petitions filed by respondents 2 and 3 to seek expunction of the adverse remarks made against them by the Sessions Judge. [510G-H; 511A-C] 4. Even assuming that for expunging the remarks against respondents No. 2 and 3 the conduct of the appellant re- quired 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. [511D-E] 5. 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 conduct 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 pronouncements must be judicial in nature, and should not normally depart from sobriety, moder- ation and reserve. [512A-C] State of U.P.v. Mohd. Naim, [1964] 2 S.C.R. 363, 374 equal to AIR 1964 S.C. 702; R.K. Lakshmanan v. A.K. Srinivasan, [1976] 1 SCR 204; AIR 1975 SC 1741 and Niranjan Patnaik v. Sashibhushan Kar & Anr., [1986] 2 SCC 569, relied,upon. 6. Judged in the light of the above tests it is clear that none of the tests is satisfied in this case. [512D] 504 JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 109
of 1987.
From the Judgment and Order dated 12.6.86 of the Kerala
High Court in Crl. M.C. No. 511/1982 and 212/1985.
P.S. Poti, P.N. Puri and E.M.S. Anam for the Appellant.
Baby Krishnan for the Respondents.
The Judgment of the Court was delivered by
NATARAJAN, J. This Appeal by Special Leave is by a
Gazetted Police Officer to seek expunction of certain ad-
verse remarks passed against him by the High Court of Kerala
in an order passed with reference to two Criminal Miscella-
neous Petitions filed by Respondents 2 and 3 herein without
issuing any notice to him and without hearing him.
The somewhat unusual circumstances in which the appel-
lant has been made the victim of strictures by the High
Court may now be looked into. One Chandrasekaran Pillai
residing within the limits of Karunagapally Police Station
was charged under Section 302 I.P.C. for having committed
the murder of his wife Komalavalli by first beating her and
kicking her and then hanging her in order to make it appear
that it was a case of suicide. The accused’s son aged about
12 years and a neighbour claimed to have witnessed the
beating as well as the accused dragging the deceased to the
western side of the house. A little later the son made bold
to go into the house and found his mother having with a
noose round her neck. He raised alarm and the neighbours
including his maternal uncle came to the house and cut the
rope and rendered first aid unsuccessfully because Komalav-
alli had already died.
A report was given at Karunagapally Police Station and a
case of “suspicious death” was registered and investigation
was done by Shri T.P. Rajagopalan, Inspector of Police
(Respondent No. 2) who was examined as P.W. 16 in the Ses-
sions Trial against the accused. As the brother of deceased
Komalavalli was not satisfied with the manner of investiga-
tion of the local police he filed a petition before the
Deputy Inspector General Southern range. Under orders of the
Deputy Inspector General the investigation was entrusted to
the Crime Detach-
505
ment in which the appellant was serving as a Deputy Supdt.
of Police. The appellant took charge of the case and his
investigation revealed that Komalavalli’s death was due to
homicide and not suicide. The appellant was incharge of the
investigation of the case only from. 26.11. 1980 to 5.1.
1981 and thereafter the further investigation was done by
another police officer of the Crime Detachment who was
examined as P.W. 18 in the trial. The charge sheet was
eventually filed by yet another officer viz. P.W. 19 an
Inspector of Police.
The defence of the accused was that his wife Komalavalli
had committed suicide and that he had not murdered her. In
support of his defence the accused placed reliance upon the
first Investigating Officer viz. P.W. 16 carrying out a
cellophone tape test on the palms of Komalavalli and sending
the cellophone tapes to the Forensic Science Laboratory to
find out whether any fibres of coir rope were found in the
cellophone tape and if so whether the fibres had come out of
the coir rope used for the hanging. The report of the Foren-
sic Science Laboratory was that the cellophone tape con-
tained fibres of coir which were similar to the coir rope
used for the hanging. It was, therefore, contended that
Komalavalli’s death was due to suicide as otherwise fibres
from the coir rope used for hanging would not have been
found in the palms of her hands. To prove the despatch of
the cellophone tapes to the Forensic Science Laboratory and
the receipt of the report from the said Laboratory and its
despatch to the Crime Detachment a Head Constable of Karuna-
gapally Police Station by name E. Koyakunju (Respondent No.
1) was examined as Defence Witness No. 2.
The Sessions Judge entertained serious doubts about P.W.
16 carrying out the cellophone tape test to lift any fibres
of coir sticking to the palms of Komalavalli and sending the
tapes to the Forensic Science Laboratory and the bona fides
of the exercise. We shall set out later the numerous suspi-
cious features noticed by the Sessions Judge regarding the
conduct of P.W. 16 and DW 2 with reference to the carrying
out of the cellophone tape test and the despatch of the
tapes to the Forensic Science Laboratory and the entrustment
of the report to the Crime Detachment. For the present we
will continue with the narrative so as to make known the
circumstances which have led to the filing of this Appeal.
After evaluating the prosecution evidence the Sessions
Judge held that the prosecution had failed to prove the case
against the accused beyond reasonable doubt and, therefore,
gave him the benefit
506
of doubt and acquitted him of the charge under Section 302
I.P.C. It is significant to note that the acquittal was not
rendered in acceptance of the defence case that Komalavalli
had committed suicide but because the Court felt that it
would not be safe to act upon the evidence of P.W. 2, the
son and P.W. 3, the neighbour and convict the accused for
the offence of murder.
In the course of his judgment the Sessions Judge made
severe comments against P.W. 16, the Inspector of Police,
D.W. 2, Head Constable and another Policeman P.C. 2599 and
observed as follows:
“Therefore in my view this is a fit case where
appropriate action has to be taken against
P.W. 16, D.W. 2 and P.C. 2599 who wrote Ext. D
14 for the reasons stated earlier. Otherwise
indiscipline and the tendency to tamper with
official documents and create false documents
will set at naught the very purpose of having
a police establishment. When one wing of the
police establishment tries to investigate
properly and to book the culprit, P.W. 16,
D.W. 2 and P.C. 2599 were trying to neutralise
all the work that has been done by the Crime
Detachment and to help the accused to get an
acquittal. This is a serious situation which
the higher authorities in the police depart-
ment have to take serious notice of and curb
the tendency even in the beginning.”
Aggrieved by the strictures passed by the Sessions
Judge, the Inspector (P.W. 16) and the Head Constable (D.W.
2) filed Criminal Misc. Petitions before the High Court of
Kerala for expunging the adverse remarks made against them.
A learned single judge of the High Court, without making any
examination of the conduct of the petitioners before him and
without considering whether the features noticed by the
Sessions Judge warranted the adverse remarks or not went at
a tangent and put the appellant in the dock for having
failed to place before the Court the scientific materials
which P.W. 16 had obtained in the course of investigation to
find out whether Komalavalli’s death was due to suicide or
homicide. The learned judge had taken it for granted that
P.W. 16 and D.W. 2 had acted in a blemishless manner and
that the report of the Forensic Science Laboratory had been
obtained through bona fide investigative process and it was
the appellant who had schemingly kept back the crucial
records from the notice of the Court in order to secure a
conviction unjustly against the accused and as such the
appellant should be raprimanded in no uncertain terms. The
relevant portions in the judgment where the appellant
507
who was examined as P.W. 17 in the Sessions Trial has been
criticised are as under:-
“(para 6.) P.W. 17, Dy. S.P. who conducted the
investigation kept the above facts concealed
purposely. If the report sent by the Assistant
Director of forensic Science Laboratory was
made available to the court it would have gone
a long way to establish innocence of the
accused. So to foist a false case of murder on
the account he did not send the report of the
Assistant Director of Forensic Science Labora-
tory to the Court. He pleaded complete igno-
rance of the above examination when examined
before court.
(para 8.) The part played by P.W. 17 is not
beyond suspicion. He had purposely concealed
materials which were favourable to the ac-
cused. It would appear that this officer was
averse to scientific methods being made use of
in investigation of crimes. His attempt was
only to see that the accused is convicted in
this case. This should not have been the
approach of a senior officer like P.W. 17, who
was investigating a very serious crime. The
life and liberty of innocent persons should
not be placed at the mercy of such unscrupu-
lous officers. It will be proper for the
higher officers in the department to look into
this matter and take proper corrective meas-
ures for future guidance.”
Stung by the remarks made against him without even
heating, the appellant has preferred this Appeal to seek
expunction of the remarks.
Now let us have a look at the distressing and suspicious
features noticed by the Sessions Judge in the conduct of
P.W. 16 and D .W. 2 in the “cellophone tape test” carried
out by them and in obtaining the report of the Forensic
Science Laboratory and the despatch of the opinion to the
Crime Detachment. The relevant portions extracted from the
Judgment are as follows:-
(i) “The inquest Report prepared by this
witness (P.W. 16) does not show that he had
seized any cellophone tape or coir or that
they were sent to the Forensic Science Labora-
tory”:
(ii) “There are no documents to show that the
tape and coir
508
were taken into custody for the purpose of
sending them to the Forensic Science Laborato-
ry in the case diary”:
(iii) “Normally any material to be examined
by the Forensic Science Laboratory will be
sent only through the court. Admittedly the
cellophone tape and the coir were not sent
through court. On the other hand it is stated
that they were sent to the laboratory through
a constable. But the case diary does not show
that any constable was sent to the Forensic
Science Laboratory for handing over these
articles”:
(iv) “P.W. 16 did not prepare, any mahazar
for seizure of any cellophone tape and inquest
report also does not state anything about any
tape said to have been affixed by him on the
palm or the dead body and taken for the pur-
pose of examination at the laboratory”;
(v) “D.W. 1 Assistant Director of the
Forensic Science Laboratory, Trivandrum,
examined by the defence to prove his report
Exhibit D. 10 regarding the presence of small
bits of coconut fibres beating similarity to
the coir rope that was also sent, had stated
in cross examination that even if the tape was
affixed to the coir (instead of the palms) and
then sent, it will contain the fibres similar
to the one found on the coir”:
(vi) “The investigation was taken over by
the Crime Detachment on 26. 11. 1980. The
cellophone tapes and the coir pieces are said
to have been sent by P.W. 16 to the laboratory
on 1.12.80 when he had ceased to be the Inves-
tigating Officer;”
(vii) “Even if he had taken any cellophone
tape and coir pieces at the time of inquest or
thereafter and wanted them to be examined by
the laboratory the proper course for him would
have been to send them to the Dy. S.P. who was
investigating the case on 1.12. 1980;”
(viii) D .W. 2 Head Constable, summoned and
examined by the defence to prove the sending
of the cellophone tapes and coir to the labo-
ratory and the report received from the labo-
ratory had stated “that there is no document
in the
509
Policy Station to prove that cellophone tape
or coir piece were sent from Karunagappally
Police Station to the Forensic Science Labora-
tory, Trivandrum.”
(ix) “He further stated that the report re-
ceived from the laboratory was sent to the
Crime Detachment on 7.1. 1981 but claimed that
there is nothing to show that it was received
by any officer of the Crime Detachment Office.
The despatch register Ext. D13 only shows that
a cover was handed over to a constable for
delivery to the Crime Detachment Office. But
there is no acknowledgement to show that the
constable had actually handed over the same to
the office of the Crime Detachment at Quilon.”
(x) “D.W. 2 produced a notebook Ext. D. 14
said to have been maintained by the constable
to whom this cover was handed over for deliv-
ery at the office of the Crime Detachment. In
this the curious aspect is that the entry
regarding this handing over is written in a
sheet of paper which is affixed in the note
book as an extra sheet …… This entry
Ext. D. 14 has been purposely manufactured for
the purpose of this case and I have no doubt
that it has been done at the instance of D.W.
2 the Head Constable and P.C. 2599 who wrote
Ext. D. 14. Therefore the constable who wrote
Ext. D. 14 and DW 2 are equally responsible
for this fraud.”
(xi) “The extent to which DW2 would go to help
the accused is evident from the fact that he
voluntarily producted Ext. D.17.”
(xii) “Ext. D.17 is a letter sent from the
Forensic Science Laboratory to the S.I. on
15.11.1980.” This letter states that the
sealed packet said to contain the MOs involved
in Crime 220 of 1980 of Karunagapally Police
Station were being returned unopened for want
of forwarding note and certificate and hence
the sealed packet may be resubmitted with
proper forwarding note and certificate. At the
bottom of this letter in vernacular it is
written “cellophone tape.” Except this vernac-
ular writing there is nothing to show that the
MOs referred to in Ext. D. 17 were cellophone
tape and coir piece …… As the packet
sent from the Karunagapally Police Station was
not opened, by the Forensic Science
510
Laboratory, the writing in vernacular at the
bottom of Ext. D. 17 could not have been
written by anybody from the laboratory. It is
a subsequent interpollation probably at the
instance of D.W. 2. This was also interferring
with official documents and tampering with it
by D.W. 2 or somebody from the Police Station
at Karunagapally.
It was with reference to all these features the Sessions
Judge made his adverse remarks against P.W. 16, D.W. 2 and
P.C. 2599 and observed that the conduct of the concerned
official was highly open to suspicion, that as such a full
fledged enquiry should be held against them and that “other-
wise indiscipline and the tendency to tamper with official
documents and create false documents will set at naught the
very purpose of having a police establishment.”
Coming now to the merits of this Appeal when P.W. 16 and
D.W. 2 moved the High Court for expunging the adverse re-
marks against them the scope of the enquiry was confined to
the bonafides of their action in the investigation proceed-
ing and whether the Sessions Judge was justified in drawing
adverse inferences against them on the basis of suspicious
features catalogued by him. The High Court was not dealing
with an appeal against the acquittal of the accused and
there was no need or occasion for the High Court to go into
the conduct of the appellant. The enquiry in the Criminal
Misc. Petitions was only touching upon the conduct of P.W.
16 and D.W. 2 and not the conduct of the appellant. Further-
more one material fact which the High Court had completely
over-looked is that the appellant ceased to be in charge of
the case on 5.1.1981. Thereafter the investigation of the
case was taken charge of by P.W. 18 and still later by P.W.
19. Even according to D.W. 2 the report from the Forensic
Science Laboratory was sent to the Crime Detachment only on
7.1.1981 whereas the appellant ceased to be incharge of the
case on 5.1. 1981 itself. It, therefore, passes one’s com-
prehension as to how the appellant can be accused of having
wilfully suppressed material documents from the notice of
the court in order to secure a conviction unjustly against
the accused in a murder case. The High Court, it is surpris-
ing to find has not applied its mind to the series of suspi-
cious features noticed by the Sessions Judge to draw an
adverse inference against P.W. 16 and D.W. 2 in conducting
the so-called cellophone tape test and sending the tape to
the Forensic Science Laboratory for its report. The learned
judge has taken it for granted that P.W. 16 had actually
carried out a cellophone tape test, that in carrying out
such a test he was wedded to scientific methods of investi-
gation and that he and DW
511
2 had acted fairly and squarely in trying to find out the
real cause of death of Komalavalli and that it was the
appellant who had an aversion to the use of scientific
methods in investigation of crimes and that the appellant
had purposely concealed materials which were favourable to
the accused in order to secure a conviction at any cost. The
learned judge had failed to see that as a matter of fact the
accused was not kept in the dark regarding the cellophone
tape test that was deemed to have been done but on the other
hand he had full information of the test and its result, and
it was on account of that he was able to summon police
officials to figure as defence witnesses and police records
as defence exhibits. We are, therefore, clearly of opinion
that the High Court had completely misdirected itself in its
consideration of the petitions filed by respondents 2 and 3
to seek expunction of the adverse remarks made against them
by the Sessions Judge.
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 appel-
lant 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 appel-
lant.
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 S.C.R. 363,374equal to AIR 1964 S.C.
702 it was held as follows:
“If there is one principle of cardinal impor-
tance 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
512
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, [1976] 1 SCR 204: AIR 1975 SC 1741 and Niranjan
Patnaik v. Sashibhushan Kar & 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.
The appeal is, therefore, allowed and the adverse re-
marks against the appellant in the order of the High Court
which have been extracted above will stand expunged from the
order under appeal.
A.P.J. Appeal
allowed.
513