Kumar Deka & Anr Vs. State of Assam & Anr  INSC 1101 (10 September 1996)
Pattanaik (J) G.B. Pattanaik (J) Ramaswamy, K.
O R D
the learned counsel for the parties.
This appeal is for expunging certain remarks made by a learned Judge of the Guwahati
High Court against the two appellants herein, namely, Dr. Dilip Kumar Deka and
Dr. P.K. Baruah, who are attached to Mahendra Mohan Choudhary Hospital, Guwahati
('MMCH' for short), while disposing of a criminal revision petition filed by an
accused in a murder case. Facts and circumstances leading to the remarks are as
Over the murders of Mrs. Karabi Das and her niece Ms. Chandra Rani Dharitri Das
a case under Section 302 IPC was registered by Latasil Police Station on August 1,1995. In connection with the case Smt. Geeta
Kalita and her husband Shri Bhagya Kalita were arrested on August 2, 1995; and on their production before the
Chief Judicial Magistrate, Guwahati on the following day, (August 3, 1995) they
were remanded to the police custody for seven days on the prayer of the
Investigating Officer. While in police custody Smt. Kalita complained of severe
abdominal pain in the night of August 8, 1995
and, therefore the police took her to MMCH.
she was first treated by Dr. K.S. Dowerah and, under his advice, was admitted
in the hospital as an indoor patient.
following day the appellant No.1 examined her and diagnosed that she was
suffering from peptic ulcer and appendicitis. The appellant No.1 then advised
the Deputy Superintendent of the hospital to transfer her to the Guwahati Medical College Hospital ('GMCH' for short) as the facility for ultra sonography was
not available in their hospital. Accordingly, the Deputy Superintendent wrote a
letter to the Officer incharge of Latasil Police Station on August 9, 1995 requesting him to make security
arrangements for shifting her to GMCH. However, she was not removed to GMCH
and, hence, continued to be treated by the doctors of the MMCH including the
August 16, 1995, when it was brought to the notice of the Additional Chief
Judicial Magistrate, Guwahati, that without the order of the Court Smt. Kalita
had been hospitalised, he passed an order calling for an explanation from the
Investigating Officer (IO) in that regard and directed him to furnish the names
of the Medical Officers who had treated her. The Superintendent of MMCH was
also directed to submit a detailed report about the condition of Smt. Kalita by
August 21, 1995. To comply with the said direction
the Superintendent asked the appellants to submit a detailed report of her
medical examination and on the basis of the report so submitted, he sent his
report to the learned Magistrate. On perusal of the report the learned
Magistrate. On perusal of the report the learned Magistrate passed another
order on August 21,
1995 asking the
Superintendent, MMCH to submit weekly reports about the condition of Smt. Kalita.
In terms of the said order the Superintendent forwarded the medical report,
submitted by the appellants on August 24, 1995 and on perusal thereof and other
materials on record, the Chief Judicial Magistrate, Guwahati passed an order on
August 27, 1995, which, so far as it is relevant for our purposes, reads as
accused Smt. Geeta Kalita was given in police custody and as per order of the
Court she was to be produced before the Court on 16.8.1995. But due to the
admission of the accused in hospital for the alleged ailment during the period
of police custody, the court on prayer of the I/O extended the period of police
custody with a direction to produce the accused before the Court when released
from the hospital. In the circumstances discussed above the detention of the
accused Geeta Kalita in the MMC Hospital at the moment is not at all necessary
and the I/O has also shown no interest to get the accused discharged from the
hospital and produce before the Court.
the circumstances I refuse to allow the accused Geeta Kalita to be kept in the
hospital any further and decline to extend the period of police custody. Hence
the Superintendent, MMC Hospital is directed that he shall discharge the
accused Geeta Kalita immediately on receipt of this order and hand her over to
I/O shall attend the MMC Hospital to receive the accused and produce her before
the court by 1.30 p.m. on 29.8.1995 positively.
flouting the orders of the Court both the I/O and Dr. A.C. Bora,
Superintendent, GMC Hospital have demeaned the authority of the Court without
any justifiable reasons.
in order to preserve the supremacy of the rule of law, it may be necessary to
take appropriate penal action against these two important and responsible
functionaries. Therefore, Dr. A.C. Bora, Superintendent, G.M.C.Hospital Guwahati
and the I/O are hereby directed to show cause why they should not be proceeded
with for non-compliance and clear avoidance to comply Court's order."
Aggrieved by the above order so far as it sought to direct her release from the
hospital, Smt. Kalita moved a revision petition before a learned Judge of the
learned Judge entertained that petition and passed an interim order on August
29, 1995 constituting a medical Board comprising four eminent doctors for
examining Smt. Kalita and directing the I.O. not to produce Smt. Kalita before
the Chief Judicial Magistrate in terms of his order, till the Board submitted
its report. Following the direction of the learned Judge, the Board examined Smt.
Kalita and submitted the following report on September 5, 1995.
collectively reviewed Smt. Kalita's physical condition and the results of all
the investigations done on her, we have come to the unanimous conclusion that
she does not have any major illness at present apart from mild anemia and minor
bowel irregularity." In view of the above report the learned Judge
dismissed the revision petition of Smt. Kalita and made the following remarks
against the appellants which are impugned in this appeal:- (i) As discussed
above from the report it can be arrived at the conclusion that the report given
by the two doctors of the MMC Hospital, namely, Dr. DK Deka and Dr. PK Baruah
(the two appellants before us) is manipulated, motivated with a view to mislead
the Court by stalling the process of the Court. Their conduct was unethical and
unprofessional which violated the code of conduct of the medical profession.
The course of events since August 8, 1995 to August 27, 1995 requires judicial
scrutiny on the conduct and professional and official responsibility of the two
doctors, namely, Dr. DK Deka and Dr. PK Baruah..... which shocked the
conscience of the entire public;
From the foregoing reason I am constrained to hold that on and from 16.8.95
accused Geeta Kalita was under the judicial custody, but for her alleged
ailment, manipulated and highlighted by Dr. D.K. Deka and Dr. PK Baruah of MMC
Hospital her hospitalisation was continued till 27.8.1995;
The IO is also a party to all manipulation with the two doctors;
Apparently from 16.8.95 the accused Geeta Kalita was not under police custody
but at the connivance of the IO and the two doctors of the MMC Hospital she
continued her stay in the hospital by flouting the Court's order; and
The systematic attempt of the two doctors, namely, Dr. DK Deka and Dr. PK Baruah
of MMC Hospital...... have misused their official status and responsibility to
thwart the court proceeding and delay the judicial process for which these two
doctors.... are liable to be brought into book.
conduct and behavior of the two doctors, their extraneous activities speaks a
volume about their professional ethics......"
tests to be applied while dealing with the question of expunction of
disparaging remarks against a person or authorities whose conduct comes in for
consideration before a Court of law in cases to be decided by it were
succinctly laid down by this Court in State in Uttar Pradesh vs. Moh. Naim
(1964) 2 SCR 363. Those tests are:
Whether the party whose conduct is in question is before the court or has an
opportunity of explaining or defending himself;
Whether there is evidence on record bearing on that conduct justifying the
Whether it is necessary for the decision of the case, as an integral part thereof,
to animadvert on that conduct.
above tests have been quoted with approval and applied by this Court in its
subsequent judgments in Jage Ram, Inspector of Police & Anr. vs. Hans Raj Midha
AIR 1972 SC 1140, R.K. Lakshmanan vs. A.K. Srinivasan AIR 1975 SC 1741 and Niranjan
Patnaik vs. Sashibhusan Kar & Anr. AIR 1986 SC 819.
are surprised to find that in spite of the above catena of decisions of this
Court, the learned Judge did not, before making the remarks, give any
opportunity to the appellants, who were admittedly not parties to the revision
petition, to defend themselves. It cannot be gainsaid that the nature of
remarks the learned Judge has made, has cast a serious aspersion on the
appellants affecting their character and reputation and may, ultimately affect
their career also. Comdemnation of the appellants without giving them an
opportunity of being heard was a complete negation of the fundamental principle
of natural justice.
Judged in the context of the first test laid down in Mohd. Naim's case (supra)
the above discussion of ours is sufficient to quash the impugned remarks, but
we find that the remarks are vulnerable also to the second test laid down
therein. On perusal of the order dismissing the revision petition we find that
the remarks of the learned Judge are based solely upon the fact that the report
of the medical Board consisting of four medical experts belied their report.
Indeed, except the report of the Board we have also not found any other
material on record from which the learned Judge could have legitimately and
justifiably obtained satisfaction to pass the above remarks against the two
appellants before us. We hasten to add that in making the above observation we
have left out of our consideration the materials which prompted the learned
Judge to make adverse comments against the IO.
Goswami, the learned counsel for the appellants, contended that it could not be
said that the report of the medical Board belied those of the appellants for
they were based on clinical examination of Smt. Kalita only and that too much
earlier than her examination by the Board. Mr.
next submitted that the appellants had submitted a further report on 25.8.1995
stating that her condition had improved. In the context of the above facts, Mr.
Goswami urged that simply because the Board on its later examination found that
Smt. Kalita was not suffering from any major ailment then, it could not be said
that the reports earlier given by the appellants about the ailments of Smt. Kalita
were incorrect. We do not however wish to delve into this aspect of the matter
and would proceed to examine the justifiability of the remarks on the basis
that the diagnosis of the appellants was patently wrong and that of the Board,
which was admittedly a superior body, right.
the learned Judge's reasoning to make the impugned remarks is taken to its
logical conclusion, it would mean that whenever a superior Court sets aside a
finding of a lower Court, which is patently wrong, the former gets a charter to
make vituperative remarks against the latter simply because it had recorded
such a finding. Before drawing any conclusion that an inferior body on Court
has recorded a wrong finding with an ulterior motive or for an oblige purpose
the superior body or Court, as the case may be, must demonstrate that there are
materials - other than the patently wrong finding which impels it to so
the conclusion would be presumptuous and justice and fair play would be casualities.
Now that we have found, applying the first two test of Mohd. Naim's case
(supra) that the impugned remarks cannot be justified, the question whether it
satisfies the third test also need not be gone into. However, we will be
failing in our duty if we do not advert to the phraseology the learned Judge
has used while condemning the conduct of the appellants. In Mohd. Naim's case
(supra) this Court while laying down the three tests (quoted earlier) further
has also been recognised that judicial pronouncement must be judicial in nature
and should not normally depart from sobriety, moderation and reserve."
While quoting with approval the above observations in Niranjan's case (supra)
this Court further observed:
need only remind that the higher the forum and the greater the powers, the
greater the need for restraint and the more mellowed the reproach should
be." 12. Recently, in Abani Kanti Ray vs. State of Orissa & Ors.1990
Court has made the following observations after referring to the earlier cases
of this Court, including R.K. Lakshmanan (supra) and Niranjan (supra):
we have said above is nothing new and is only a reiteration of the established
norms of judicial property and restraint expected from everyone discharging
judicial functions. Use of intemperate language of making disparaging remarks
against any one unless that be the requirement for deciding the case, is
inconsistent with judicial behaviors. Written words in judicial orders for
permanent record which make it even more necessary to practice self- restraint
in exercise of judicial power while making written orders.
helpful to recall this facet to remind ourselves and avoid pitfalls arising
even from provocation at times."
keeping with the above observations, we feel, the learned Judge ought to have
used temperate language and moderate expressions while criticising the
appellants, for judicious restraint in such matters only lends more dignity to
the high office the learned Judge holds and imparts greater respect for the
judiciary. For the foregoing discussion we allow this appeal and quash the
earlier quoted disparaging remarks made against the appellants.
Before parting with this judgment we wish to point put that while dismissing
the revision petition filed by Smt. Kalita the learned Judge has recorded the
I uphold the order of the learned Chief Judicial Magistrate which was passed
against these Govt. officials with direction to show cause and I direct the
Court to proceed accordingly under the provisions of law." (emphasis
This direction of the High Court is not in conformity with the order of the
Chief Judicial Magistrate (quoted earlier) for therein the direction is for
holding an enquiry into the conduct of Dr. A.C. Bora, Superintendent, MMCH and
Investigating Officer and not the two appellants before us.