{"id":162734,"date":"1986-04-11T00:00:00","date_gmt":"1986-04-10T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/niranjan-patnaik-vs-sashibhusan-kar-anr-on-11-april-1986"},"modified":"2017-01-10T02:54:42","modified_gmt":"2017-01-09T21:24:42","slug":"niranjan-patnaik-vs-sashibhusan-kar-anr-on-11-april-1986","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/niranjan-patnaik-vs-sashibhusan-kar-anr-on-11-april-1986","title":{"rendered":"Niranjan Patnaik vs Sashibhusan Kar & Anr on 11 April, 1986"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Niranjan Patnaik vs Sashibhusan Kar & Anr on 11 April, 1986<\/div>\n
Equivalent citations: 1986 AIR 819, \t\t 1986 SCR (2) 470<\/div>\n
Author: S Natrajan<\/div>\n
Bench: Natrajan, S. (J)<\/div>\n
           PETITIONER:\nNIRANJAN PATNAIK\n\n\tVs.\n\nRESPONDENT:\nSASHIBHUSAN KAR & ANR.\n\nDATE OF JUDGMENT11\/04\/1986\n\nBENCH:\nNATRAJAN, S. (J)\nBENCH:\nNATRAJAN, S. (J)\nERADI, V. BALAKRISHNA (J)\n\nCITATION:\n 1986 AIR  819\t\t  1986 SCR  (2) 470\n 1986 SCC  (2) 569\t  1986 SCALE  (1)877\n CITATOR INFO :\n D\t    1987 SC 294\t (24,47)\n R\t    1987 SC1436\t (14)\n R\t    1990 SC1737\t (14)\n\n\nACT:\n     Constitution  of  India,  Art.  136\/Criminal  Procedure\nCode, 1973,  s. 482  - High Court making disparaging remarks\nagainst prosecution  witness -\tExpunction of by the Supreme\nCourt.\n     Prevention of Corruption Act, 1947 : s. 8 - Prosecution\nwitness - Immunity of from prosecution under s. 165-A of the\nIndian Penal Code, 1860.\n     Prevention of  Corruption\tAct,  1947,  s.\t 4(1)\/Indian\nPenal Code,  1860, s.  161 -  Accused not denying receipt of\nmoney\/seizure of currency notes from his possession - Burden\nof proof - Whether shifts to the accused.\n     Criminal trial  - Evidence\t pertaining  to\t a  previous\noffence not  subject-matter of the charge - Whether needs to\nbe critically examined.\n\n\n\nHEADNOTE:\n     The appellant  was a licensee of an iron ore mine where\nP.W.2 was  employed as his manager. The first respondent was\nthe Senior  Mining Officer  for the  area. On a complaint by\nthe manager  that the  first respondent\t had been extracting\nillegal gratification at the rate of rupees one thousand per\nmonth during January, February and March 1979 from P.W.2 for\nallowing mining\t operations to\tbe carried on peacefully and\nsuddenly raised the demand to rupees two thousand per month,\na trap\twas laid by the vigilance police and marked currency\nnotes of  the value  of rupees\ttwo thousand tendered to the\nfirst respondent  were recovered  from his  brief case.\t The\nreceipt of  the illegal\t gratification was denied by him but\nno  explanation\t was  offered  for  the\t possession  of\t the\ncurrency notes.\n     Before the\t trial court  the defence  of the  accused -\nfirst respondent,  was that  the money\twas given  by way of\ndonation for  the welfare  projects launched  by the  Mining\nOfficers' Club. The appellant was cited as a prosecution\n471\nwitness\t (P.W.8)  to  corroborate  the\ttestimony  that\t his\nmanager had  informed him  of having  parted with  a sum  of\nrupees three  thousand to  the first  respondent during\t the\nfirst three  months of 1979, and subsequently about the trap\nthat had  been laid.  The trial\t court rejecting the belated\nexplanation of\tthe first  respondent found him guilty under\ns. 5(2)\t read with  s.5(1)(d) of  the Act  and s. 161 of the\nIndian Penal Code, and convicted and sentenced him.\n     The High  Court while  setting aside the conviction and\nsentence  of   the  first   respondent,\t observed  that\t the\nappellant  and\t his  manager\tbeing  accomplices   to\t the\ncommission of the crime, having willingly played the role of\nbribe givers  for three\t months, the evidence of these self-\ncondemned persons,  who, on  their own\tshowing\t had  thrown\nmoral scruples and sense of honesty, if they had any, to the\nwinds, would  be unworthy of credit without corroboration in\nmaterial particulars.\n     In his  appeal to\tthis  Court  by\t special  leave\t the\nappellant (P.W.8)  sought expunction of the aforesaid highly\nderogatory remarks  made against  him  by  the\tHigh  Court,\ncontending that\t the failure of the Court to apply the legal\npresumptions against  the first\t respondent led\t it  to\t the\nmaking of  uncalled for\t caustic comments  against him,\t and\nthat the  receipt of  bribe during  the earlier\t months\t not\nbeing the subject matter of the charge there was no need for\nthe Court  to have  critically examined\t the evidence of the\nappellant on that aspect of the matter.\n     Allowing the appeal, the Court,\n^\n     HELD: 1.  Harsh and  disparaging remarks  are not to be\nmade against  persons and  authorities whose  conduct  comes\ninto consideration  before courts of law unless it is really\nnecessary for  the decision of the case, as an integral part\nthereof to animadvert on that conduct. [483 B]\n     State of  U.P. v.\tMohammad Naim,<\/a>\t[1964] 2 S.C.R. 363;\nR.K. Lakshmanan\t v. A.K.  Srinivasan & Anr.,<\/a> [1976] 1 S.C.R.\n204 and\t Panchanan Banerji  v.\tUpendra\t Nath  Bhattacharji,\nA.I.R. 1927 All. 193, referred to.\n     In\t the  instant  case,  the  derogatory  remarks\tmade\nagainst\n472\nthe appellant  were neither  justified nor called for. These\nshall stand  expunged from the judgment under appeal. Having\nregard to the hearsay nature of evidence of the appellant it\nwas not\t at all\t necessary for\tthe appellate  court to have\ncastigated him.\t Even assuming\tthat a serious evaluation of\nthe evidence  of the  appellant was  really called  for, the\nremarks of the court should have been in conformity with the\nsettled\t practice   to\tobserve\t  sobriety,  moderation\t and\nreserve. The  higher the  forum and  the greater the powers,\nthe greater the need for restraint and the more mellowed the\nreproach should be. [483 B-E]\n     2. There  was no need whatever for a minute examination\nof the\tappellant's testimony  or a  critical inquisition of\nhis character  and conduct.  The judgment of acquittal could\nhave as well been rendered with reference to the failings in\nthe evidence  of P.W.2\tand the\t acceptable features  in the\nexplanation of the first respondent. [480 D]\n     What fell\tfor consideration  by the  court was not the\nreceipt of  money during the previous months but whether the\nsum of\ttwo thousand  rupees, which was admittedly recovered\nfrom the  first respondent,  had been received by him by way\nof bribe  or by\t way of\t donation. For this limited question\nthe appellant was not a material witness. [479 G; 478 D; 480\nA]\n     3. Section\t 8  of\tthe  Prevention\t of  Corruption\t Act\nconfers immunity  from prosecution  under  s.  165A  of\t the\nIndian Penal  Code on persons who figure as witnesses in any\nproceeding against  a public servant for an offence under s.\n161 or\ts. 165\tof the\tCode or under s. 5(2) or s. 5(3A) of\nthe Act. Where the evidence relating to receipt of bribe has\na material  bearing on the case the obligation to deny those\nallegations rests  with the  accused.  Though  the  rule  of\npresumption contained  in s. 4(1) does not apply to a charge\nunder s.  5(2) read  with s.  5(1)(d)  of  the\tAct,  it  is\ncertainly attracted  to a  charge under\t s. 161 of the Code.\nFailure of  the appellate  court in  the  instant  case,  to\nappreciate this\t legal position\t at the\t outset to  a  large\nextent distorted  the perspective  to be  taken in the case.\n[477 B, 478 D-E, 477 F, 477 G, 477 A]\n\n\n\nJUDGMENT:\n<\/pre>\n
     CRIMINAL APPELLATE\t JURISDICTION :\t Criminal Appeal No.
\n421 of 1985
\n473<\/span>
\n     From the  Judgment and  Order dated 26th April, 1985 of
\nthe Orissa High Court in Crl. A.No. 31 of 1982.\n<\/p>\n
     F.S. Nariman,  Mrs. Uma Mehta Jain, S.K. Bagga and Miss
\nMona Mehta for the Appellant.\n<\/p>\n
     K. Parasaran,  Attorney  General,\tT.S.  Krishnamoorthy
\nIyer, A.K.  Ganguly, C.V.  Subba Rao, Probir Palit, P. Gaur,
\nUmesh B.  Bhagat, Jitendra  Sharma and\tR.K. Mehta  for\t the
\nRespondents.\n<\/p>\n
     Mrs. M.  Karanjawala, Vinoo  Bhagat and  A.K. Panda for
\nthe interveners.\n<\/p>\n
     The Judgment of the Court was delivered by
\n     NATARAJAN, J.  A peculiar\tfeature of  this  appeal  by
\nspecial leave is that it is not an appeal against conviction
\nor against  acquittal but  one preferred  by  a\t prosecution
\nwitness for  expunction of several highly derogatory remarks
\nmade against  him by  a learned\t Judge of  the High Court of
\nOrissa while  allowing Criminal Appeal No. 31 of 1982 on the
\nfile of the High Court of Orissa. Shri Niranjan Patnaik, the
\nappellant before  us was  examined as P.W. 8 in the trial of
\nT.R. Case  No. 6  of 1980  on the  file of the Special Judge
\n(Vigilance), Sambalpur\tagainst the  first  respondent.\t The
\ntrial ended  in conviction  against the first respondent and
\nwhen the  appeal filed\tby him\tcame to be heard by the High
\nCourt the  appellant had  become a  Cabinet Minister  in the
\nState of  Orissa. On account of the disparaging remarks made
\nby  the\t  Appellate  Judge   the  appellant   tendered\t his
\nresignation and\t demitted office  for maintaining democratic
\ntraditions. It\tis in that backgroud this appeal has come to
\nbe preferred.\n<\/p>\n
     Pursuant to  a trap laid by the Vigilance Police on the
\ncomplaint of  the appellant’s  Manager,\t Gopi  Nath  Mohanty
\n(P.W.2) the  first respondent  was arrested  on 26.4.79\t for
\nhaving accepted a bribe of Rs. 2,000 from Gopi Nath Mohanty.
\nThe marked  currency notes  M.Os. V  to XXVI  were recovered
\nfrom the brief case M.O. II of the first respondent prior to
\nthe  arrest.   The  prosecution\t case  was  that  the  first
\nrespondent had\tbeen extracting illegal gratification at the
\nrate of Rs. 1,000
\n474<\/span>
\nper month  during the months of January, February and March,
\n1979 from  Gopi Nath  Mohanty but  all of a sudden he raised
\nthe demand to Rs. 2,000 per month in April 1979 and this led
\nto Gopi\t Nath Mohanty  laying information (Exhibit I) before
\nthe Superintendent  of Police  (Vigilance).  Acting  on\t the
\nreport, a  trap was  laid on  26.4.79 and  after  Gopi\tNath
\nMohanty had  handed  over  the\tmarked\tcurrency  notes\t the
\nVigilance  party   entered  the\t office\t and  recovered\t the
\ncurrency notes\tfrom the  brief case  and arrested the first
\nrespondent. The\t first respondent denied having received any
\nillegal gratification  but offered  no explanation  for\t the
\npresence of the currency notes in his brief case.\n<\/p>\n
     Eleven witnesses including the appellant who figured as
\nP.W.8  were  examined  by  the\tprosecution  and  the  first
\nrespondent  examined   three  witnesses\t D.Ws.\t1  to  3  to
\nsubstantiate the  defence set  up by him, viz., that the sum
\nof Rs. 2,000 had been paid by way of donation for conducting
\na drama\t and publishing\t a souvenir  by the Mining Officers’
\nClub and  also towards donation for Children’s Welfare Fund.
\nThe Special Judge accepted the prosecution case and held the
\nfirst respondent guilty under Section 5(2) read with Section
\n5(1)(d)\t of   the  Prevention\tof  Corruption\t Act,\t1947
\n(hereinafter referred  to as  the `Act’)  and Section 161 of
\nthe Indian  Penal  Code\t (hereinafter  referred\t to  as\t the
\n`Code’). The  Special Judge  awarded a\tsentence of rigorous
\nimprisonment for one year for the conviction under the first
\ncharge but  did not  award any\tseparate  sentence  for\t the
\nconviction under Section 161 of the Code.\n<\/p>\n
     Against  the   conviction\tand   sentence\t the   first
\nrespondent preferred  Criminal Appeal  No. 31 of 1982 to the
\nHigh Court  of Orissa. A learned Judge of the High Court has
\nallowed the  appeal holding  that the  prosecution  has\t not
\nproved its  case by  acceptable evidence  and  besides,\t the
\nfirst respondent’s  explanation for  the possession  of\t the
\ncurrency notes appeared probable. While acquitting the first
\nrespondent the\tlearned Judge  has,  however,  made  several
\nadverse remarks about the conduct of the appellant and about
\nthe credibility of his testimony and it is with that part of
\nthe judgment we are now concerned with in this appeal.\n<\/p>\n
     Mr. F.S. Nariman, learned counsel for the appellant
\n475<\/span>
\nargued that  the appellant’s  limited role  in the  case has
\nbeen unnecessarily  and unjustly  magnified by the Appellate
\nJudge and  furthermore the  legal presumptions\tagainst\t the
\nfirst respondent  have been  failed to\tbe applied and these
\nerrors have  led the  learned Judge  to\t make  uncalled\t for
\ncaustic comments  against the appellant. Mr. Nariman further
\nargued that  it was  not at  all necessary  for the  learned
\nJudge to  have dwelt at length on the value of the testimony
\nof the\tappellant for  allowing\t the  appeal  of  the  first
\nrespondent.  Mr.  K.  Parasaran,  learned  Attorney  General
\nparticipated in\t the debate pursuant to the notice issued to
\nhim and\t rendered assistance  by placing  before us  certain
\nearlier decisions  laying down the principles to be followed
\nif adverse  comments are  to be made by courts affecting the
\ncharacter and  reputation of  litigants witnesses  and third
\nparties. Mr.  Jitender Sharma, learned counsel for the first
\nrespondent did\tnot advance  any arguments as no disturbance
\nof the\tacquittal of  the first\t respondent by the Appellate
\nJudge is sought for in the appeal.\n<\/p>\n
     Having regard  to the limited scope of the appeal it is
\nnot necessary  for us  to traverse  at length  or  refer  in
\ndetail the circumstances under which a trap was laid and the
\nfirst respondent  was arrested.\t Suffice it to say that Shri
\nNiranjan Patnaik,  the appellant was the licensee of an Iron
\nMine known  as Murgabada  Mines at  Joda. Gopi\tNath Mohanty
\n(P.W.2) had been employed by him as Manager of the Mines and
\nhe was\tattending to  the affairs  of the  Mines. The  first
\nrespondent who\twas the\t Senior Mining\tOfficer for Joda had
\ninsisted on  payment of Rs. 1,000 to him for allowing mining
\noperations to be carried on peacefully and Gopi Nath Mohanty
\nhad complied  with the demand and paid Rs. 1,000 every month
\nduring January\tto March,  1979. Unexpectedly when the first
\nrespondent raised  the demand  to Rs.  2,000 per  month Gopi
\nNath Mohanty  reported the  matter to  the Superintendent of
\nPolice (Vigilance)  and on  his instructions a trap was laid
\non 26.4.79  and marked\tcurrency notes\tM.Os.V to  XXVI were
\npassed on to the first respondent and thereafter the raiding
\nparty consisting  of  the  Inspector  of  Police,  Vigilance
\n(P.W.10) and  an Executive  Magistrate (P.W.9) recovered the
\nmoney from  the first respondent and arrested him. The first
\nrespondent was\tsubjected to  a chemical  test of having his
\nhands washed  with sodium  carbide  solution.  The  solution
\nturned pink  in colour\testablishing his  having handled the
\nmarked currency\t notes treated\tearlier with phenolphthalein
\npowder.\n<\/p>\n
476<\/span><\/p>\n
     The appellant  was cited  as a  prosecution witness  to
\nspeak to  the fact  that  his  Manager,\t Gopi  Nath  Mohanty
\n(P.W.2) had  informed him in March 1979 of his having parted
\nwith a\tsum of\tRs. 3,000  to the first respondent by way of
\nbribe during the first three months of 1979 and subsequently
\nabout the  trap that had been laid for the first respondent.
\nThe appellant  was not, therefore, a material witness in the
\ncase and had only been cited to corroborate the testimony of
\nGopi Nath  Mohanty in some measure. As he was not a material
\nor crucial witness the appellant did not evince any interest
\nin the trial of the case. He, therefore, failed to appear in
\ncourt in  spite of  being summoned  to attend  the court  on
\n3.2.81 and  again on  6.3.81. His  disregard of\t the summons
\nfrom court  led to  a third  summons being issued on 17.8.81
\nwith a\twarning that  if he  failed to\tappear in  court  on
\n7.9.81 he  would be  compelled to attend court by means of a
\nwarrant. It was on such compulsion the appellant appeared in
\ncourt on  7.9.81 and gave his testimony. These facts are not
\ncontroverted by\t anyone but  even so the appellant has filed
\nan  affidavit\tbefore\tthis  court  to\t substantiate  these
\nmatters.\n<\/p>\n
     As earlier stated the first respondent did not deny his
\nreceiving the  currency notes  from Gopi Nath Mohanty or the
\nrecovery of  the notes\tfrom  his  brief  case\tM.O.II.\t He,
\nhowever, stated\t that the money was given by way of donation
\nfor the\t welfare projects  launched by\tthe Mining Officers’
\nClub. Of the three defence witnesses examined by him D.Ws. 1
\nand 3  were Mines Inspectors while D.W.2 was a Peon attached
\nto the\toffice of  the first  respondent. D.Ws. 1 and 3 had,
\nhowever, to  admit that the records produced to substantiate
\nthe case  of donation  had been\t prepared  after  the  first
\nrespondent had\tbeen arrested  and released  on bail and the
\nwritings were made to the dictation of the first respondent.\n<\/p>\n
     The Trial\tJudge while  assessing\tthe  merits  of\t the
\nprosecution case  took note of the fact that since the first
\nrespondent did\tnot deny the receipt of money or the seizure
\nof the\tcurrency notes\tfrom him the burden of proof shifted
\nto him\tunder Section 4(1) of the Act. The Special Judge was
\nof the view that the explanation of the first respondent was
\nbelated and, therefore, was not believable or acceptable and
\nhence he convicted and sentenced him.\n<\/p>\n
477<\/span><\/p>\n
     The learned  Appellate Judge,  while dealing  with\t the
\nappeal has  failed to  take note of Section 8 of the Act and
\nsecondly he has given recognition to the rule of presumption
\ncontained in Section 4(1) of the Act only at a belated stage
\nof the\tjudgment. These\t factors  have\tto  a  large  extent
\ndistorted the perspective to be taken in the case. Section 8
\nof the\tAct which  is extracted\t below confers immunity from
\nprosecution under  Section 165A\t on persons  who  figure  as
\nwitnesses in  any proceeding against a public servant for an
\noffence under  Section 161  or Section\t165 or under Section
\n5(2) or Section 5(3A) of the Act.\n<\/p>\n
\t  “Notwithstanding anything contained in any law for
\n\t  the time  being in  force, a\tstatement made\tby a
\n\t  person in  any proceeding against a public servant
\n\t  for an offence under Section 161 or Section 165 of
\n\t  the Indian Penal Code, or under sub-section (2) or
\n\t  sub-section (3A) of Section 5 of this Act, that he
\n\t  offered  or  agreed  to  offer  any  gratification
\n\t  (other than  legal remuneration)  or any  valuable
\n\t  thing to  the public\tservant, shall\tnot  subject
\n\t  such person to a prosecution under Section 165A of
\n\t  the said Code.”<\/p><\/blockquote>\n
     Oversight of  this provision  has\tmade  the  Appellate
\nJudge conclude\tthat the  appellant and\t Gopi  Nath  Mohanty
\n(P.W.2) are  as much  guilty as\t the first respondent in the
\ncommission of  the offences  and as  such they\tstand  self-
\ncondemned as  accomplices to  the crime\t and furthermore the
\ntwo of\tthem stood exposed to prosecution under Section 165A
\nof the Code.\n<\/p>\n
     In so far as the rule of presumption under Section 4(1)
\nis concerned  the learned  Judge has  no doubt recognised in
\nthe later  portion of  the judgment that even though Section
\n4(1) would  not apply  to the charge under Section 5(2) read
\nwith Section  5(1)(d) of  the act it would undoubtedly stand
\nattracted to  the charge  under Section\t 161 of the Code. If
\nthe learned Judge had visualized this position at the outset
\nitself there  would  not  have\tbeen  any  necessity  for  a
\nmicroscopic examination\t of the evidence of the appellant or
\nfor making  sweeping remarks  against him.  Mr. Nariman\t is,
\ntherefore, justified  to some extent in contending that even
\nthough the  Appellate Judge  was aware\tthat for  the charge
\nunder
\n478<\/span>
\nSection 161  of the  Code the  first respondent was under an
\nobligation to  rebut the  legal presumption  raised  against
\nhim, the  learned Judge\t has recognised\t this position\tonly
\nafter devoting\tthe earlier  portion  of  the  judgment\t for
\ndecrying the  appellant and  Gopi Nath\tMohanty\t for  having
\nwillingly played the role of bribe-givers.\n<\/p>\n
     Yet another  serious infirmity  in the  judgment of the
\nAppellate Judge is that the learned Judge has castigated the
\nappellant and  Gopi Nath  Mohanty for having given bribes of
\nRs. 1,000 per month for three months to the first respondent
\nand decried  both of  them for\tputting forth  a false\tcase
\nwhile at  the same time holding that the receipt of bribe of
\nthree thousand\trupees is  not the  subject-matter of charge
\nand as\tsuch the first respondent was under no obligation to
\ndisprove the evidence of the appellant and Gopi Nath Mohanty
\non that aspect of the matter. Since the payment of Rs. 3,000
\nduring the  earlier months  was not  the  subject-matter  of
\ncharge there  was no need or necessity for the learned Judge
\nto have\t critically examined  the evidence  of the appellant
\nand  Gopi  Nath\t Mohanty  on  that  aspect  of\tthe  matter.
\nConversely if  the learned  Judge  felt\t that  the  evidence
\nrelating to  those payments  had a  material bearing  on the
\ncase he should not have absolved the first respondent of any
\nobligation to  deny those  allegations. The  error that\t has
\ncrept in  because of  the different standards adopted can be
\nseen  from  the\t conflicting  expressions  in  the  judgment
\nextracted as under :\n<\/p>\n
     In para 12 of the judgment it is stated as below :-
\n\t  “The statements  made by  Mr. Patnaik\t (P.W.8) and
\n\t  his  Manager\t (P.W.2)  with\t regard\t to  willing
\n\t  participation in  the matter\tof payments of bribe
\n\t  money to the appellant would bring about their own
\n\t  condemnation. These  two  persons,  on  their\t own
\n\t  showing, were\t bribe-givers. A bribe-giver must be
\n\t  condemned as much as bribe-taker. Givers of bribe-
\n\t  amounts  to\tpublic\tservants   are\t undoubtedly
\n\t  accomplices\t to\tthe\tcrime……….Being
\n\t  accomplices to  the commission of crime because of
\n\t  their statements  of payments\t of bribe  moneys to
\n\t  the appellant\t for three  months, the\t evidence of
\n\t  these self-condemned\tpersons, who,  on their\t own
\n\t  showing,
\n479<\/span>
\n\t  had thrown moral scruples and sense of honesty, if
\n\t  they had  any, to  the winds\tfor which instead of
\n\t  refusing to meet the demand of the appellant, they
\n\t  had willingly paid bribe amounts for three months,
\n\t  would be  unworthy of credit without corroboration
\n\t  in  material\t particulars  and  through  reliable
\n\t  sources.”<\/p><\/blockquote>\n
     However, in para 16 of the judgment it is held that the
\nfirst  respondent  was\tunder  no  obligation  to  meet\t the
\nallegations relating to the payment of Rs. 3,000 to him. The
\nrelevant portion is worded as follows :\n<\/p>\n
\t  “He had  neither been\t charged under\tSection 5(2)
\n\t  and 5(1)(d) of the Act or under Section 161 of the
\n\t  Code for  receiving illegal  gratification  during
\n\t  the months  of January  to March, 1979 and had not
\n\t  been asked  to meet  these allegations.  No person
\n\t  can be  condemned unheard  and for that reason the
\n\t  appellant could  not be  condemned on the basis of
\n\t  the statements made by P.W.2 and P.W.8 that he had
\n\t  been paid  bribe amount  for 3  months @ Rs. 1,000
\n\t  per month.”<\/p><\/blockquote>\n
     Nevertheless the  learned Judge  has again\t reverted to
\nhis original perspective and commented in para 17 as under :\n<\/p>\n
\t  “If as  submitted by\tthe defence, the evidence of
\n\t  P.Ws.2 and 8 with regard to the monthly payment of
\n\t  bribe\t money\t @  Rs.\t 1,000\tper  month  and\t the
\n\t  increased demand  of Rs. 2,000 is not accepted for
\n\t  the aforesaid\t reasons, it  would expose the utter
\n\t  falsity of the evidence of P.Ws. 2 & 8.”<\/p><\/blockquote>\n
     Over and  above all these, the learned Judge has failed
\nto consider  whether a detailed examination of the testimony
\nof the appellant was really called for in order to allow the
\nappeal\tof   the  first\t  respondent  and   set\t aside\t his
\nconvictions. From  what has  already been  stated it will be
\napparent that  what fell for consideration was whether a sum
\nof Rs.\t2,000 which  was admittedly recovered from the first
\nrespondent had\tbeen received  by him  by way of bribe or by
\nway of donation.\n<\/p>\n
480<\/span><\/p>\n
For this  limited question  the appellant was not a material
\nwitness in  the case.  It was  only his\t Manager, Gopi\tNath
\nMohanty\t (P.W.2)  who  claimed\tto  have  made\tthe  earlier
\npayments to  the first respondent as well as to have given a
\nreport and  participated in  the trap  proceedings when\t the
\nfirst respondent  raised the  demand of bribe from Rs. 1,000
\nto Rs.\t2,000 per  month. The  assumption of  the  Appellate
\nJudge that  Gopi Nath Mohanty would not have paid any sum of
\nmoney to  the first  respondent or given the F.I.R. (Exhibit
\nP-1) against  him without securing the prior approval of the
\nappellant is  only based  on conjecture and not on evidence.
\nThe learned  Judge has\talso overlooked\t the fact  that\t the
\nappellant had  not exhibited  any anxiety  to depose against
\nthe first  respondent and  on the  other hand he appeared in
\ncourt and  gave evidence  only after  being  warned  in\t the
\nsummons issued\tfor the\t third time  that a warrant would be
\nissued against\thim if\the failed to respond to the summons.
\nIf all\tthese factors  had been perceived it would have been
\nclear  that   there  was  no  need  whatever  for  a  minute
\nexamination of\tthe  appellant’s  testimony  or\t a  critical
\ninquisition of his character and conduct and the judgment of
\nacquittal could have as well been rendered with reference to
\nthe failings  in the  evidence of  Gopi Nath Mohanty and the
\nacceptable  features   in  the\t explanation  of  the  first
\nrespondent for\this possession of the currency notes M.Os. V
\nto XXVI series.\n<\/p>\n
     The defective  approach made by the Appellate Court has
\nresulted  in   paragraphs  9  to  17  being  devoted  to  an
\nevaluation and\tcriticism of the appellant’s evidence out of
\nthe total  36 paragraphs contained in the judgment. In these
\nparagraphs the\tAppellate Judge\t has severely criticised the
\nappellant and has made harsh remarks which are now sought to
\nbe expunged. They are extracted below :\n<\/p>\n
\t  “These two  persons, on  their own  showing,\twere
\n\t  bribe-givers…..   Being   accomplices   to\t the
\n\t  commission of crime because of their statements of
\n\t  payments of  bribe moneys  to\t the  appellant\t for
\n\t  three months,\t the evidence  of  these  two  self-<\/p><\/blockquote>\n
\t  condemned persons,  who, on their own showing, had
\n\t  thrown moral\tscruples and  sense of\thonesty,  if
\n\t  they had  any, to  the winds\tfor which instead of
\n\t  refusing to meet the demand of the appellant, they
\n\t  had
\n481<\/span>
\n\t  willingly paid  bribe-amounts\t for  three  months,
\n\t  would be  unworthy of credit without corroboration
\n\t  in  material\t particulars  and  through  reliable
\n\t  sources.” (Para 12)
\n\t  “….in which\t case both  P.Ws.2 and\t8  would  be
\n\t  liable for  abetment of  commission  of  the\tsaid
\n\t  offence by  the appellant…\tThe acts  of P.Ws. 2
\n\t  and 8\t would also  be culpable under Section 165-A
\n\t  of the Code….both P.Ws.2 and 8 were liable to be
\n\t  punished under  Section 165-A\t of  the  Code.\t The
\n\t  investigating agency\tdid not\t choose to prosecute
\n\t  the appellant\t and P.Ws. 2 and 8 for commission of
\n\t  these offences.” (Para 13)
\n\t  “Undoubtedly, P.Ws.2\tand 8  belong to  the  first
\n\t  category.” (Para 14)
\n\t  “….these two accomplices, namely…” (Para 15)
\n\t  “While, as  observed by  me, P.Ws.  2 and  8\thave
\n\t  condemned themselves\tas habitual  bribe-givers by
\n\t  their own  statements and  for this,\tthey have to
\n\t  blame none but themselves.” (Para 17)
\n     It will  be apposite to mention here that the appellant
\nhas nowhere  stated in\this evidence  that Gopi Nath Mohanty
\nmade the  payment of  Rs. 3,000\t for  the  three  months  in
\nquestion after\tobtaining his permission or approval. On the
\nother hand  he has only deposed that in March 1979 Gopi Nath
\nMohanty had  informed him  of the  payment of these amounts,
\nand in order to balance the accounts he had given directions
\nfor the\t amount being  shown  as  impressed  cash  with\t the
\nManager. The  Appellate Judge  has  also  proceeded  on\t the
\nassumption that the appellant was holding a public office at
\nthe relevant  time while  in fact  the appellant had neither
\njoined\tthe  Ministry  nor  even  became  a  Member  of\t the
\nLegislative Assembly  when the\tfirst respondent was trapped
\nand arrested.\n<\/p>\n
     We may now refer to certain earlier decisions where the
\nright of  courts to  make free\tand  fearless  comments\t and
\nobservations on\t the one hand and the corresponding need for
\nmaintaining sobriety, moderation and restraint regarding the
\n482<\/span>
\ncharacter, conduct  integrity, credibility  etc. of parties,
\nwitnesses and others are concerned.\n<\/p>\n
     In The  State of Uttar Pradesh v. Mohammad Naim,<\/a> [1964]
\n2 S.C.R. 363 it was held as follows :\n<\/p>\n
\t  “If there  is one principle of cardinal importance
\n\t  in the administration of justice, it is this : the
\n\t  proper freedom  and  independence  of\t Judges\t and
\n\t  Magistrates must  be maintained  and they  must be
\n\t  allowed to  perform  their  functions\t freely\t and
\n\t  fearlessly and  without undue\t interference by any
\n\t  body, even  by this  court. At the same time it is
\n\t  equally  necessary   that  in\t  expressing   their
\n\t  opinions Judges  and Magistrates must be guided by
\n\t  considerations of justice, fairplay and restraint.
\n\t  It is not infrequent that sweeping generalisations
\n\t  defeat the  very purpose  for which they are made.
\n\t  It has  been judicially  recognised  that  in\t the
\n\t  matter  of   making  disparaging  remarks  against
\n\t  persons or  authorities whose\t conduct comes\tinto
\n\t  consideration before\tcourts of law in cases to be
\n\t  decided by  them, it\tis relevant  to consider (a)
\n\t  whether the  party whose conduct is in question is
\n\t  before  the\tcourt  or   has\t an  opportunity  of
\n\t  explaining or defending himself; (b) whether there
\n\t  is evidence  on record  bearing  on  that  conduct
\n\t  justifying the  remarks; and\t(c)  whether  it  is
\n\t  necessary for\t the decision  of the  case,  as  an
\n\t  integral  part  thereof,  to\tanimadvert  on\tthat
\n\t  conduct. It has also been recognised that judicial
\n\t  pronouncements must  be judicial  in\tnature,\t and
\n\t  should  not\tnormally   depart   from   sobriety,
\n\t  moderation and reserve.”<\/p><\/blockquote>\n
     Vide also in R.K. Lakshmanan v. A.K. Srinivasan & Anr.,<\/a>
\n[1976] 1 S.C.R. 204 wherein this ratio has been referred to.\n<\/p>\n
     In Panchanan  Banerji  v.\tUpendra\t Nath  Bhattacharji,
\nA.I.R. 1927 Allahabad 193 Sulaiman, J. held as follows :\n<\/p>\n
\t  “The High Court, as the supreme court of revision,
\n\t  must be  deemed to  have power  to see that Courts
\n\t  below do  not\t unjustly  and\twithout\t any  lawful
\n\t  excuse
\n483<\/span>
\n\t  take away the character of a party or of a witness
\n\t  or of a counsel before it.”<\/p><\/blockquote>\n
     It is, therefore, settled law that harsh or disparaging
\nremarks are  not to  be made against persons and authorities
\nwhose conduct  comes into consideration before courts of law
\nunless it  is really necessary for the decision of the case,
\nas an  integral part  thereof to animadvert on that conduct.
\nWe hold\t that the adverse remarks made against the appellant
\nwere neither justified nor called for.\n<\/p>\n
     Having regard  to the limited controversy in the appeal
\nto the\tHigh Court and the hearsay nature of evidence of the
\nappellant it  was not  at all  necessary for  the  Appellate
\nJudge to  have animadverted  on the conduct of the appellant
\nfor  the  purpose  of  allowing\t the  appeal  of  the  first
\nrespondent. Even  assuming that\t a serious evaluation of the
\nevidence of  the appellant  was really\tcalled\tfor  in\t the
\nappeal the  remarks of the learned Appellate Judge should be
\nin conformity with the settled practice of courts to observe
\nsobriety, moderation  and reserve.  We need only remind that
\nthe higher the forum and the greater the powers, the greater
\nthe need  for restraint\t and the  more mellowed the reproach
\nshould be.\n<\/p>\n
     As we  find merit\tin the contentions of the appellant,
\nfor the\t aforesaid reasons,  we allow  the appeal and direct
\nthe derogatory\tremarks made  against the  appellant set out
\nearlier to stand expunged from the judgment under appeal.\n<\/p>\n
P.S.S.\t\t\t\t\t     Appeal allowed.\n484<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Niranjan Patnaik vs Sashibhusan Kar & Anr on 11 April, 1986 Equivalent citations: 1986 AIR 819, 1986 SCR (2) 470 Author: S Natrajan Bench: Natrajan, S. (J) PETITIONER: NIRANJAN PATNAIK Vs. RESPONDENT: SASHIBHUSAN KAR & ANR. DATE OF JUDGMENT11\/04\/1986 BENCH: NATRAJAN, S. (J) BENCH: NATRAJAN, S. (J) ERADI, V. BALAKRISHNA (J) […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-162734","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nNiranjan Patnaik vs Sashibhusan Kar & Anr on 11 April, 1986 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/niranjan-patnaik-vs-sashibhusan-kar-anr-on-11-april-1986\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Niranjan Patnaik vs Sashibhusan Kar & Anr on 11 April, 1986 - 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