{"id":260943,"date":"1987-03-03T00:00:00","date_gmt":"1987-03-02T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/s-k-viswambaran-vs-e-koyakunju-ors-on-3-march-1987"},"modified":"2017-07-03T03:47:53","modified_gmt":"2017-07-02T22:17:53","slug":"s-k-viswambaran-vs-e-koyakunju-ors-on-3-march-1987","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/s-k-viswambaran-vs-e-koyakunju-ors-on-3-march-1987","title":{"rendered":"S.K. Viswambaran vs E. Koyakunju & Ors on 3 March, 1987"},"content":{"rendered":"
Supreme Court of India<\/div>\n
S.K. Viswambaran vs E. Koyakunju & Ors on 3 March, 1987<\/div>\n
Equivalent citations: 1987 AIR 1436, 1987 SCR (2) 501<\/div>\n
Author: O C Reddy<\/div>\n
Bench: Reddy, O. Chinnappa (J)<\/div>\n
           PETITIONER:\nS.K. VISWAMBARAN\n\n\tVs.\n\nRESPONDENT:\nE. KOYAKUNJU & ORS.\n\nDATE OF JUDGMENT03\/03\/1987\n\nBENCH:\nREDDY, O. CHINNAPPA (J)\nBENCH:\nREDDY, O. CHINNAPPA (J)\nNATRAJAN, S. (J)\nRAY, B.C. (J)\nDUTT, M.M. (J)\n\nCITATION:\n 1987 AIR 1436\t\t  1987 SCR  (2) 501\n 1987 SCC  (2) 109\t  JT 1987 (1)\t680\n 1987 SCALE  (1)506\n\n\nACT:\n    Criminal  Procedure\t Code<\/a>,\t1973--s.482--Sessions  Judge\npassed strictures against police officials concerning inves-\ntigation--High\tCourt approached for expunction\t of  adverse\nremarks--Scope of Inquiry--Limited only to the bona fides of\naction\tof  Petitioners before High  Court--Adverse  remarks\nmade by High Court against another Police Officer conducting\ninvestigation  without\thearing him--Principles\t of  natural\njustice--Opportunity  to  be given  before  adverse  remarks\nmade--Tests  for making\t adverse  remarks--What are--Whether\nfollowed  in the instant case-High  Court's  order--Validity\nof.\n\n\n\nHEADNOTE:\n    The\t Sessions Judge while acquitting the accused of\t the\ncharge\tunder s.302 IPC<\/a> entertained serious doubts about  PW\n16 (Respondent No. 2.), the Inspector of Police, who  partly\ninvestigated the case, carrying out the cellophone tape test\nto  lift  any fibres of coir sticking to the  palms  of\t the\ndeceased  and  sending\tthe tapes to  the  Forensic  Science\nLaboratory and the bona fides of the exercise. On the  basis\nof  the suspicions features mentioned in his  judgment,\t the\nSessions  Judge\t made severe adverse remarks against  PW  16\n(Respondent  No.  2.) DW 2 (Respondent No.  3)\tand  another\npoliceman  and observed that the conduct of these  officials\nwas  highly open to suspicion, that a  full-fledged  enquiry\nshould he held against them and that \"otherwise indiscipline\nand  the  tendency  to tamper with  official  documents\t and\ncreate\tfalse documents will set at naught the very  purpose\nof having a police establishment.\"\n    The\t Inspector  PW 16 (Respondent No. 2)  and  the\tHead\nConstable PW 2 (Respondent No. 3) filed petitions before the\nHigh  Court for expunging the adverse remarks  made  against\nthem.  A Single Judge without making any examination of\t the\nconduct of the petitioners before him and without  consider-\ning  whether  the  features noticed by\tthe  Sessions  Judge\nwarranted  the adverse remarks or not went at a tangent\t and\nput  the appellant, a Deputy Suptd. of Police (PW  17),\t who\nhad also investigated the case from 26.11.80 to 5.11.81,  in\nthe  dock  for having failed to place before the  Court\t the\nscientific materials which PW 16\n502\n(Respondent No. 2) had obtained in the course of  investiga-\ntion  to find out whether the death of the deceased was\t due\nto  suicide or homicide. The learned judge observed that  PW\n16 (Respondent No. 2) and DW 2 (Respondent No. 3) had  acted\nin  a  blemishless  manner and the report  of  the  Forensic\nScience Laboratory had been obtained through bonafide inves-\ntigative process and it was the appellant who had schemingly\nkept  back the crucial recordS from the notice of the  Court\nin order to secure a conviction unjustly against the accused\nand as such the appellant should be raprimanded in no uncer-\ntain terms.\n    Stung  by  the remarks made against him without  even  a\nhearing, the appellant preferred the instant appeal to\tseek\nexpunction of the remarks.\nAllowing the Appeal,\n    HELD:  1. The adverse remarks against the  appellant  in\nthe  order  of the High Court under appeal  will  stand\t ex-\npunged. [512E]\n    2. When PW 16 and DW 2 moved the High Court for  expung-\ning  the adverse remarks against them the scope of  the\t en-\nquiry was confined to the bona fides of their action in\t the\ninvestigation proceedings and whether the Sessions Judge was\njustified  in drawing adverse inference against them on\t the\nbasis of the suspicious features catalogued by him. The High\nCourt  was not dealing with an appeal against the  acquittal\nof  the\t accused and there was no need or occasion  for\t the\nHigh  Court  to go into the conduct of\tthe  appellant.\t The\nenquiry\t was only touching upon the conduct of PW 16 and  DW\n2. Furthermore the High Court had completely overlooked\t the\nfact  that the appellant ceased to be in charge of the\tcase\non  5.1.81.  Thereafter the investigation of  the  case\t was\ntaken  charge of by PW 18 and still later by PW 19  and\t ac-\ncording to DW 2 the report from the Forensic Science Labora-\ntory was sent to the Crime Detachment only on 7.1.81 whereas\nthe  appellant ceased to be in charge of the case on  5.1.81\nitself. It, therefore, passes one's comprehension as to\t how\nthe  appellant can be accused of having wilfully  suppressed\nmateriai documents from the notice of the Court in order  to\nsecure\ta  conviction  unjustify against the  accused  in  a\nmurder case. [510D-G]\n    3. The High Court has not applied its mind to the series\nof suspicious features noticed by the Sessions Judge to draw\nan  adverse inference against PW 16 and DW 2  in  conducting\ntheso-called  cellophone tape test and sending the  tape  to\nthe  Forensic Science Laboratory for its report.  The  Judge\nhad taken it for granted that PW 16 had actually\n503\ncarried\t out  a cellophone tape test, that in  carrying\t out\nsuch a test he was wedded to scientific methods of  investi-\ngation,\t that he and DW 2 had acted fairly and\tsquarely  in\ntrying\tto find out the real cause of the death of  the\t de-\nceased and that it was the appellant who had an aversion  to\nthe use of scientific methods in investigation of crimes and\nthat  the appellant had purposely concealed materials  which\nwere favourable to the accused in order to secure a  convic-\ntion  at  any cost. The Judge had failed to see\t that  as  a\nmatter of fact the accused was not kept in the dark  regard-\ning  the cellophone tape test that was deemed to  have\tbeen\ndone  but on the other hand he had full information  of\t the\ntest  and its result, and it was on account of that  he\t was\nable  to summon police officials to figure as  defence\twit-\nnesses\tand  police records as defence\texhibits.  The\tHigh\nCourt had thus completely misdirected itself in its  consid-\neration\t of  the petitions filed by respondents 2 and  3  to\nseek expunction of the adverse remarks made against them  by\nthe Sessions Judge. [510G-H; 511A-C]\n    4. Even assuming that for expunging the remarks  against\nrespondents  No.  2 and 3 the conduct of the  appellant\t re-\nquired scrutiny and merited adverse comment, the  principles\nof  natural justice required the High Court to\thave  issued\nnotice to the appellant and heard him before passing adverse\nremarks\t against him if it was considered necessary. By\t its\nfailure\t the  High  Court has failed  to  render  elementary\njustice to the appellant. [511D-E]\n    5. It has been judicially recognised that in the  matter\nof making disparaging remarks against persons or authorities\nwhose conduct comes into consideration before Courts of\t law\nin  cases to be decided by them, it is relevant to  consider\n(a) whether the party whose conduct is in question is before\nthe  Court or has an opportunity of explaining or  defending\nhimself; (b) whether there is evidence on record bearing  on\nthat  conduct justifying the remarks; and (c) whether it  is\nnecessary  for the decision of the case as an integral\tpart\nthereof,  to  animadvert on that conduct. It has  also\tbeen\nrecognised that judicial pronouncements must be judicial  in\nnature, and should not normally depart from sobriety, moder-\nation and reserve. [512A-C]\nState  of U.P.v. Mohd. Naim<\/a>, [1964] 2 S.C.R. 363, 374  equal\nto  AIR 1964 S.C. 702; R.K. Lakshmanan v.  A.K.\t Srinivasan<\/a>,\n[1976]\t1 SCR 204; AIR 1975 SC 1741 and Niranjan Patnaik  v.\nSashibhushan Kar & Anr<\/a>., [1986] 2 SCC 569, relied,upon.\n    6.\tJudged in the light of the above tests it  is  clear\nthat none of the tests is satisfied in this case. [512D]\n504\n\n\n\nJUDGMENT:\n<\/pre>\n
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 109
\nof 1987.\n<\/p>\n
    From the Judgment and Order dated 12.6.86 of the  Kerala
\nHigh Court in Crl. M.C. No. 511\/1982 and 212\/1985.
\nP.S. Poti, P.N. Puri and E.M.S. Anam for the Appellant.
\nBaby Krishnan for the Respondents.\n<\/p>\n
The Judgment of the Court was delivered by
\n    NATARAJAN,\tJ.  This  Appeal by Special Leave  is  by  a
\nGazetted  Police Officer to seek expunction of\tcertain\t ad-
\nverse remarks passed against him by the High Court of Kerala
\nin an order passed with reference to two Criminal  Miscella-
\nneous Petitions filed by Respondents 2 and 3 herein  without
\nissuing any notice to him and without hearing him.
\n    The\t somewhat unusual circumstances in which the  appel-
\nlant  has  been made the victim of strictures  by  the\tHigh
\nCourt  may  now be looked into.\t One  Chandrasekaran  Pillai
\nresiding  within the limits of Karunagapally Police  Station
\nwas  charged under Section 302<\/a> I.P.C. for  having  committed
\nthe murder of his wife Komalavalli by first beating her\t and
\nkicking her and then hanging her in order to make it  appear
\nthat it was a case of suicide. The accused’s son aged  about
\n12  years  and\ta neighbour claimed to\thave  witnessed\t the
\nbeating as well as the accused dragging the deceased to\t the
\nwestern side of the house. A little later the son made\tbold
\nto  go\tinto the house and found his mother  having  with  a
\nnoose  round  her neck. He raised alarm and  the  neighbours
\nincluding  his maternal uncle came to the house and cut\t the
\nrope and rendered first aid unsuccessfully because  Komalav-
\nalli had already died.\n<\/p>\n
    A report was given at Karunagapally Police Station and a
\ncase of “suspicious death” was registered and  investigation
\nwas  done  by  Shri T.P. Rajagopalan,  Inspector  of  Police
\n(Respondent  No. 2) who was examined as P.W. 16 in the\tSes-
\nsions Trial against the accused. As the brother of  deceased
\nKomalavalli was not satisfied with the manner of  investiga-
\ntion  of  the local police he filed a  petition\t before\t the
\nDeputy Inspector General Southern range. Under orders of the
\nDeputy Inspector General the investigation was entrusted  to
\nthe Crime Detach-\n<\/p>\n
505<\/span><\/p>\n
ment  in which the appellant was serving as a Deputy  Supdt.
\nof  Police.  The appellant took charge of the case  and\t his
\ninvestigation  revealed that Komalavalli’s death was due  to
\nhomicide and not suicide. The appellant was incharge of\t the
\ninvestigation  of  the case only from. 26.11. 1980  to\t5.1.
\n1981  and thereafter the further investigation was  done  by
\nanother\t police\t officer  of the Crime\tDetachment  who\t was
\nexamined  as  P.W.  18 in the trial. The  charge  sheet\t was
\neventually  filed  by yet another officer viz.\tP.W.  19  an
\nInspector of Police.\n<\/p>\n
    The defence of the accused was that his wife Komalavalli
\nhad  committed suicide and that he had not murdered her.  In
\nsupport of his defence the accused placed reliance upon\t the
\nfirst  Investigating  Officer viz. P.W. 16  carrying  out  a
\ncellophone tape test on the palms of Komalavalli and sending
\nthe  cellophone tapes to the Forensic Science Laboratory  to
\nfind  out whether any fibres of coir rope were found in\t the
\ncellophone tape and if so whether the fibres had come out of
\nthe coir rope used for the hanging. The report of the Foren-
\nsic  Science  Laboratory was that the cellophone  tape\tcon-
\ntained\tfibres of coir which were similar to the  coir\trope
\nused  for  the hanging. It was,\t therefore,  contended\tthat
\nKomalavalli’s  death was due to suicide as otherwise  fibres
\nfrom  the  coir rope used for hanging would  not  have\tbeen
\nfound  in the palms of her hands. To prove the\tdespatch  of
\nthe cellophone tapes to the Forensic Science Laboratory\t and
\nthe  receipt of the report from the said Laboratory and\t its
\ndespatch to the Crime Detachment a Head Constable of Karuna-
\ngapally Police Station by name E. Koyakunju (Respondent\t No.\n<\/p>\n
1) was examined as Defence Witness No. 2.\n<\/p>\n
    The Sessions Judge entertained serious doubts about P.W.
\n16 carrying out the cellophone tape test to lift any  fibres
\nof coir sticking to the palms of Komalavalli and sending the
\ntapes to the Forensic Science Laboratory and the bona  fides
\nof the exercise. We shall set out later the numerous  suspi-
\ncious  features noticed by the Sessions Judge regarding\t the
\nconduct\t of P.W. 16 and DW 2 with reference to the  carrying
\nout  of\t the cellophone tape test and the  despatch  of\t the
\ntapes to the Forensic Science Laboratory and the entrustment
\nof  the report to the Crime Detachment. For the\t present  we
\nwill  continue\twith the narrative so as to make  known\t the
\ncircumstances which have led to the filing of this Appeal.
\n    After  evaluating the prosecution evidence the  Sessions
\nJudge held that the prosecution had failed to prove the case
\nagainst the accused beyond reasonable doubt and,  therefore,
\ngave him the benefit
\n506<\/span>
\nof  doubt and acquitted him of the charge under Section\t 302<\/a>
\nI.P.C. It is significant to note that the acquittal was\t not
\nrendered in acceptance of the defence case that\t Komalavalli
\nhad  committed\tsuicide but because the Court felt  that  it
\nwould  not be safe to act upon the evidence of P.W.  2,\t the
\nson  and P.W. 3, the neighbour and convict the\taccused\t for
\nthe offence of murder.\n<\/p>\n
    In\tthe course of his judgment the Sessions\t Judge\tmade
\nsevere\tcomments against P.W. 16, the Inspector\t of  Police,
\nD.W.  2, Head Constable and another Policeman P.C. 2599\t and
\nobserved as follows:\n<\/p>\n
\t      “Therefore in my view this is a fit case where
\n\t      appropriate  action  has to be  taken  against
\n\t      P.W. 16, D.W. 2 and P.C. 2599 who wrote Ext. D
\n\t      14  for the reasons stated earlier.  Otherwise
\n\t      indiscipline  and the tendency to tamper\twith
\n\t      official documents and create false  documents
\n\t      will set at naught the very purpose of  having
\n\t      a\t police establishment. When one wing of\t the
\n\t      police  establishment  tries  to\t investigate
\n\t      properly\tand  to book the culprit,  P.W.\t 16,
\n\t      D.W. 2 and P.C. 2599 were trying to neutralise
\n\t      all  the work that has been done by the  Crime
\n\t      Detachment  and to help the accused to get  an
\n\t      acquittal.  This is a serious situation  which
\n\t      the  higher authorities in the police  depart-
\n\t      ment  have to take serious notice of and\tcurb
\n\t      the tendency even in the beginning.”<\/p><\/blockquote>\n
    Aggrieved  by  the\tstrictures passed  by  the  Sessions
\nJudge, the Inspector (P.W. 16) and the Head Constable  (D.W.\n<\/p>\n
2)  filed Criminal Misc. Petitions before the High Court  of
\nKerala for expunging the adverse remarks made against  them.
\nA learned single judge of the High Court, without making any
\nexamination of the conduct of the petitioners before him and
\nwithout\t considering  whether the features  noticed  by\t the
\nSessions Judge warranted the adverse remarks or not went  at
\na  tangent  and\t put the appellant in the  dock\t for  having
\nfailed\tto place before the Court the  scientific  materials
\nwhich P.W. 16 had obtained in the course of investigation to
\nfind  out whether Komalavalli’s death was due to suicide  or
\nhomicide.  The learned judge had taken it for  granted\tthat
\nP.W.  16  and D.W. 2 had acted in a blemishless\t manner\t and
\nthat the report of the Forensic Science Laboratory had\tbeen
\nobtained through bona fide investigative process and it\t was
\nthe  appellant\twho  had schemingly kept  back\tthe  crucial
\nrecords\t from the notice of the Court in order to  secure  a
\nconviction  unjustly  against the accused and  as  such\t the
\nappellant  should be raprimanded in no uncertain terms.\t The
\nrelevant portions in the judgment where the appellant
\n507<\/span>
\nwho  was examined as P.W. 17 in the Sessions Trial has\tbeen
\ncriticised are as under:-\n<\/p>\n
\t      “(para 6.) P.W. 17, Dy. S.P. who conducted the
\n\t      investigation  kept the above facts  concealed
\n\t      purposely. If the report sent by the Assistant
\n\t      Director\tof forensic Science  Laboratory\t was
\n\t      made available to the court it would have gone
\n\t      a\t long  way  to establish  innocence  of\t the
\n\t      accused. So to foist a false case of murder on
\n\t      the account he did not send the report of\t the
\n\t      Assistant Director of Forensic Science Labora-
\n\t      tory  to the Court. He pleaded complete  igno-
\n\t      rance  of the above examination when  examined
\n\t      before court.\n<\/p><\/blockquote>\n
\t      (para  8.) The part played by P.W. 17  is\t not
\n\t      beyond  suspicion. He had purposely  concealed
\n\t      materials\t which\twere favourable to  the\t ac-
\n\t      cused.  It would appear that this officer\t was
\n\t      averse to scientific methods being made use of
\n\t      in  investigation of crimes. His\tattempt\t was
\n\t      only  to see that the accused is convicted  in
\n\t      this  case.  This\t should not  have  been\t the
\n\t      approach of a senior officer like P.W. 17, who
\n\t      was  investigating a very serious\t crime.\t The
\n\t      life  and liberty of innocent  persons  should
\n\t      not  be placed at the mercy of such  unscrupu-
\n\t      lous  officers.  It  will be  proper  for\t the
\n\t      higher officers in the department to look into
\n\t      this  matter and take proper corrective  meas-
\n\t      ures for future guidance.”<\/p><\/blockquote>\n
    Stung  by  the  remarks made against  him  without\teven
\nheating,  the  appellant has preferred this Appeal  to\tseek
\nexpunction of the remarks.\n<\/p>\n
    Now let us have a look at the distressing and suspicious
\nfeatures  noticed  by the Sessions Judge in the\t conduct  of
\nP.W.  16 and D .W. 2 in the “cellophone tape  test”  carried
\nout  by\t them and in obtaining the report  of  the  Forensic
\nScience\t Laboratory and the despatch of the opinion  to\t the
\nCrime  Detachment. The relevant portions extracted from\t the
\nJudgment are as follows:-\n<\/p>\n
\t\t  (i)  “The inquest Report prepared by\tthis
\n\t      witness  (P.W. 16) does not show that  he\t had
\n\t      seized  any  cellophone tape or coir  or\tthat
\n\t      they were sent to the Forensic Science Labora-
\n\t      tory”:\n<\/p><\/blockquote>\n
\t      (ii) “There are no documents to show that\t the
\n\t      tape and coir
\n\t      508<\/span>
\n\t      were  taken  into custody for the\t purpose  of
\n\t      sending them to the Forensic Science Laborato-
\n\t      ry in the case diary”:\n<\/p><\/blockquote>\n
\t\t (iii) “Normally any material to be examined
\n\t      by  the  Forensic Science Laboratory  will  be
\n\t      sent  only through the court.  Admittedly\t the
\n\t      cellophone  tape\tand the coir were  not\tsent
\n\t      through court. On the other hand it is  stated
\n\t      that they were sent to the laboratory  through
\n\t      a constable. But the case diary does not\tshow
\n\t      that  any constable was sent to  the  Forensic
\n\t      Science  Laboratory  for\thanding\t over  these
\n\t      articles”:\n<\/p><\/blockquote>\n
\t\t (iv) “P.W. 16 did not prepare, any  mahazar
\n\t      for seizure of any cellophone tape and inquest
\n\t      report also does not state anything about\t any
\n\t      tape  said to have been affixed by him on\t the
\n\t      palm  or the dead body and taken for the\tpur-
\n\t      pose of examination at the laboratory”;\n<\/p><\/blockquote>\n
\t\t  (v)  “D.W.   1 Assistant Director  of\t the
\n\t      Forensic\t Science   Laboratory,\t Trivandrum,
\n\t      examined\tby the defence to prove\t his  report
\n\t      Exhibit D. 10 regarding the presence of  small
\n\t      bits  of coconut fibres beating similarity  to
\n\t      the  coir rope that was also sent, had  stated
\n\t      in cross examination that even if the tape was
\n\t      affixed to the coir (instead of the palms) and
\n\t      then sent, it will contain the fibres  similar
\n\t      to the one found on the coir”:\n<\/p><\/blockquote>\n
\t\t (vi)  “The investigation was taken over  by
\n\t      the  Crime  Detachment on 26.  11.  1980.\t The
\n\t      cellophone tapes and the coir pieces are\tsaid
\n\t      to have been sent by P.W. 16 to the laboratory
\n\t      on 1.12.80 when he had ceased to be the Inves-
\n\t      tigating Officer;”\n<\/p><\/blockquote>\n
\t\t (vii) “Even if he had taken any  cellophone
\n\t      tape and coir pieces at the time of inquest or
\n\t      thereafter  and wanted them to be examined  by
\n\t      the laboratory the proper course for him would
\n\t      have been to send them to the Dy. S.P. who was
\n\t      investigating the case on 1.12. 1980;”\n<\/p><\/blockquote>\n
\t\t(viii) D .W. 2 Head Constable, summoned\t and
\n\t      examined\tby the defence to prove the  sending
\n\t      of the cellophone tapes and coir to the  labo-
\n\t      ratory and the report received from the  labo-
\n\t      ratory  had stated “that there is no  document
\n\t      in the
\n\t      509<\/span>
\n\t      Policy  Station to prove that cellophone\ttape
\n\t      or  coir piece were sent\tfrom  Karunagappally
\n\t      Police Station to the Forensic Science Labora-
\n\t      tory, Trivandrum.”\n<\/p><\/blockquote>\n
\t      (ix)  “He further stated that the\t report\t re-
\n\t      ceived  from  the laboratory was sent  to\t the
\n\t      Crime Detachment on 7.1. 1981 but claimed that
\n\t      there is nothing to show that it was  received
\n\t      by any officer of the Crime Detachment Office.
\n\t      The despatch register Ext. D13 only shows that
\n\t      a\t cover\twas handed over to a  constable\t for
\n\t      delivery\tto the Crime Detachment Office.\t But
\n\t      there  is no acknowledgement to show that\t the
\n\t      constable had actually handed over the same to
\n\t      the office of the Crime Detachment at Quilon.”\n<\/p><\/blockquote>\n
\t      (x)  “D.W.  2 produced a notebook Ext.  D.  14
\n\t      said to have been maintained by the  constable
\n\t      to whom this cover was handed over for  deliv-
\n\t      ery at the office of the Crime Detachment.  In
\n\t      this  the\t curious aspect is  that  the  entry
\n\t      regarding\t this handing over is written  in  a
\n\t      sheet  of paper which is affixed in  the\tnote
\n\t      book  as\tan extra sheet\t……\t This  entry
\n\t      Ext. D. 14 has been purposely manufactured for
\n\t      the  purpose of this case and I have no  doubt
\n\t      that it has been done at the instance of\tD.W.
\n\t      2\t the Head Constable and P.C. 2599 who  wrote
\n\t      Ext. D. 14. Therefore the constable who  wrote
\n\t      Ext.  D. 14 and DW 2 are\tequally\t responsible
\n\t      for this fraud.”\n<\/p><\/blockquote>\n
\t      (xi) “The extent to which DW2 would go to help
\n\t      the  accused is evident from the fact that  he
\n\t      voluntarily producted Ext. D.17.”\n<\/p><\/blockquote>\n
\t      (xii)  “Ext.  D.17 is a letter sent  from\t the
\n\t      Forensic\tScience\t Laboratory to the  S.I.  on
\n\t      15.11.1980.”  This  letter  states  that\t the
\n\t      sealed packet said to contain the MOs involved
\n\t      in  Crime 220 of 1980 of Karunagapally  Police
\n\t      Station were being returned unopened for\twant
\n\t      of  forwarding note and certificate and  hence
\n\t      the  sealed  packet may  be  resubmitted\twith
\n\t      proper forwarding note and certificate. At the
\n\t      bottom  of  this letter in  vernacular  it  is
\n\t      written “cellophone tape.” Except this vernac-
\n\t      ular writing there is nothing to show that the
\n\t      MOs referred to in Ext. D. 17 were  cellophone
\n\t      tape  and\t coir piece  ……  As\t the  packet
\n\t      sent from the Karunagapally Police Station was
\n\t      not opened, by the Forensic Science
\n\t      510<\/span>
\n\t      Laboratory,  the writing in vernacular at\t the
\n\t      bottom  of  Ext.\tD. 17 could  not  have\tbeen
\n\t      written by anybody from the laboratory. It  is
\n\t      a\t subsequent interpollation probably  at\t the
\n\t      instance of D.W. 2. This was also interferring
\n\t      with official documents and tampering with  it
\n\t      by D.W. 2 or somebody from the Police  Station
\n\t      at Karunagapally.<\/p><\/blockquote>\n
    It was with reference to all these features the Sessions
\nJudge  made his adverse remarks against P.W. 16, D.W. 2\t and
\nP.C.  2599  and observed that the conduct of  the  concerned
\nofficial  was highly open to suspicion, that as such a\tfull
\nfledged enquiry should be held against them and that “other-
\nwise  indiscipline and the tendency to tamper with  official
\ndocuments and create false documents will set at naught\t the
\nvery purpose of having a police establishment.”\n<\/p>\n
    Coming now to the merits of this Appeal when P.W. 16 and
\nD.W.  2 moved the High Court for expunging the\tadverse\t re-
\nmarks against them the scope of the enquiry was confined  to
\nthe bonafides of their action in the investigation  proceed-
\ning and whether the Sessions Judge was justified in  drawing
\nadverse\t inferences against them on the basis of  suspicious
\nfeatures  catalogued by him. The High Court was not  dealing
\nwith  an  appeal against the acquittal of  the\taccused\t and
\nthere was no need or occasion for the High Court to go\tinto
\nthe  conduct of the appellant. The enquiry in  the  Criminal
\nMisc.  Petitions was only touching upon the conduct of\tP.W.
\n16 and D.W. 2 and not the conduct of the appellant. Further-
\nmore  one material fact which the High Court had  completely
\nover-looked is that the appellant ceased to be in charge  of
\nthe  case on 5.1.1981. Thereafter the investigation  of\t the
\ncase was taken charge of by P.W. 18 and still later by\tP.W.\n<\/p>\n
19.  Even according to D.W. 2 the report from  the  Forensic
\nScience Laboratory was sent to the Crime Detachment only  on
\n7.1.1981 whereas the appellant ceased to be incharge of\t the
\ncase  on 5.1. 1981 itself. It, therefore, passes one’s\tcom-
\nprehension as to how the appellant can be accused of  having
\nwilfully  suppressed material documents from the  notice  of
\nthe  court in order to secure a conviction unjustly  against
\nthe accused in a murder case. The High Court, it is surpris-
\ning to find has not applied its mind to the series of suspi-
\ncious  features\t noticed by the Sessions Judge\tto  draw  an
\nadverse\t inference against P.W. 16 and D.W. 2 in  conducting
\nthe  so-called cellophone tape test and sending the tape  to
\nthe Forensic Science Laboratory for its report. The  learned
\njudge  has  taken it for granted that P.W. 16  had  actually
\ncarried\t out  a cellophone tape test, that in  carrying\t out
\nsuch a test he was wedded to scientific methods of  investi-
\ngation and that he and DW
\n511<\/span>
\n2  had acted fairly and squarely in trying to find  out\t the
\nreal  cause  of\t death of Komalavalli and that\tit  was\t the
\nappellant  who\thad  an aversion to the\t use  of  scientific
\nmethods\t in investigation of crimes and that  the  appellant
\nhad  purposely concealed materials which were favourable  to
\nthe accused in order to secure a conviction at any cost. The
\nlearned judge had failed to see that as a matter of fact the
\naccused\t was not kept in the dark regarding  the  cellophone
\ntape test that was deemed to have been done but on the other
\nhand he had full information of the test and its result, and
\nit  was\t on  account of that he was able  to  summon  police
\nofficials to figure as defence witnesses and police  records
\nas  defence exhibits. We are, therefore, clearly of  opinion
\nthat the High Court had completely misdirected itself in its
\nconsideration of the petitions filed by respondents 2 and  3
\nto seek expunction of the adverse remarks made against\tthem
\nby the Sessions Judge.\n<\/p>\n
    We\thave also to point out a grievous  procedural  error
\ncommitted  by the High Court. Even assuming  for  argument’s
\nsake  that for expunging the remarks against  respondents  2
\nand  3\tthe conduct of the appellant required  scrutiny\t and
\nmerited\t adverse comment, the principles of natural  justice
\nrequired the High Court to have issued notice to the  appel-
\nlant  and heard him before passing adverse  remarks  against
\nhim if it was considered necessary. By its failure the\tHigh
\nCourt has failed to render elementary justice to the  appel-
\nlant.\n<\/p>\n
    Yet another serious infirmity contained in the  impugned
\norder is that the High Court has failed to bear in mind\t the
\nwell-settled  principles of law laid down by this  Court  in
\nmore  than  one case that should govern\t the  Courts  before
\ndisparaging remarks are made against persons or\t authorities
\nwhose conduct comes into consideration before Courts of\t law
\nin cases arising before them for decision. In State of\tU.P.
\nv. Mohd. Naim<\/a>, [1964] 2 S.C.R. 363,374equal to AIR 1964 S.C.
\n702 it was held as follows:\n<\/p>\n
\t      “If there is one principle of cardinal  impor-
\n\t      tance in the administration of justice, it  is
\n\t      this:  the proper freedom and independence  of
\n\t      Judges and Magistrates must be maintained\t and
\n\t      they  must be allowed to perform\ttheir  func-
\n\t      tions freely and fearlessly and without  undue
\n\t      interference  by anybody, even by this  Court.
\n\t      At the same time it is equally necessary\tthat
\n\t      in expressing their opinions Judges and Magis-
\n\t      trates  must  be guided by  considerations  of
\n\t      justice,\tfair play and restraint. It  is\t not
\n\t      infrequent   that\t  sweeping   generalisations
\n\t      defeat the very purpose for which they are
\n\t      512<\/span>
\n\t      made.  It has been judicially recognised\tthat
\n\t      in  the matter of making\tdisparaging  remarks
\n\t      against  persons or authorities whose  conduct
\n\t      comes into consideration before courts of\t law
\n\t      in cases to be decided by them, it is relevant
\n\t      to  consider (a) whether the party whose\tcon-
\n\t      duct is in question is before the court or has
\n\t      an  opportunity  of  explaining  or  defending
\n\t      himself;\t(b)  whether there  is\tevidence  on
\n\t      record bearing on that conduct justifying\t the
\n\t      remarks;\tand (c) whether it is necessary\t for
\n\t      the decision of the case, as an integral\tpart
\n\t      thereof, to animadvert on that conduct. It has
\n\t      also been recognised that judicial  pronounce-
\n\t      ments  must be judicial in nature, and  should
\n\t      not normally depart from sobriety,  moderation
\n\t      and reserve”.\n<\/p><\/blockquote>\n
This  ratio  has been followed in R.K. Lakshmannan  v.\tA.K.
\nSrinivasan<\/a>, [1976] 1 SCR 204: AIR 1975 SC 1741 and  Niranjan
\nPatnaik\t v.  Sashibhushan Kar & Anr<\/a>., [1986] 2 SCC  569\t (to
\nwhich  one  of us was a party). Judged in the light  of\t the
\nabove tests, it may be seen that none of the tests is satis-
\nfied  in this case. It is indeed regrettable that  the\tHigh
\nCourt  should have lightly passed adverse remarks of a\tvery
\nserious\t nature\t affecting the\tcharacter  and\tprofessional
\ncompetence  and\t integrity  of the  appellant  in  purported
\ndesire\tto  render  justice to respondents 2 and  3  in\t the
\npetition  filed\t by them for expunction of  adverse  remarks
\nmade against them.\n<\/p>\n
    The\t appeal is, therefore, allowed and the\tadverse\t re-
\nmarks  against the appellant in the order of the High  Court
\nwhich have been extracted above will stand expunged from the
\norder under appeal.\n<\/p>\n
A.P.J.\t\t\t\t\t\t      Appeal\nallowed.\n513<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India S.K. Viswambaran vs E. Koyakunju & Ors on 3 March, 1987 Equivalent citations: 1987 AIR 1436, 1987 SCR (2) 501 Author: O C Reddy Bench: Reddy, O. Chinnappa (J) PETITIONER: S.K. VISWAMBARAN Vs. RESPONDENT: E. KOYAKUNJU & ORS. DATE OF JUDGMENT03\/03\/1987 BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (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-260943","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nS.K. Viswambaran vs E. 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