S.K. Viswambaran
Vs. E. Koyakunju & Ors [1987] INSC 66 (3 March 1987)
Reddy,
O. Chinnappa (J) 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 investigation--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.
HEAD NOTE:
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 considering 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 investigation 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 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.
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 expunged. [512E]
2.
When PW 16 and DW 2 moved the High Court for expunging the adverse remarks
against them the scope of the enquiry 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 according to DW 2 the report from the Forensic Science Laboratory 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 investigation,
that he and DW 2 had acted fairly and squarely in trying to find out the real
cause of the death of the deceased 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 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. The High Court had thus 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. [510G-H; 511A-C]
4.
Even assuming that for expunging the remarks against respondents No. 2 and 3
the conduct of the appellant required scrutiny and merited adverse comment, the
principles of natural justice required the High Court to have issued notice to
the appellant and heard him before passing adverse remarks against him if it
was considered necessary. By its failure the High Court has failed to render
elementary justice to the appellant. [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, moderation 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
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 adverse
remarks passed against him by the High Court of Kerala in an order passed with
reference to two Criminal Miscellaneous 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 appellant 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 Komalavalli
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
Sessions Trial against the accused. As the brother of deceased Komalavalli was
not satisfied with the manner of investigation 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 Detach505
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 Forensic Science Laboratory
was that the cellophone tape contained 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 Karunagapally 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 suspicious 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 department 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 Laboratory to the Court. He pleaded complete
ignorance 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 accused. 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
unscrupulous officers. It will be proper for the higher officers in the
department to look into this matter and take proper corrective measures 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 Laboratory":
(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 Laboratory 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 purpose 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 Investigating
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 laboratory and the report
received from the laboratory 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 Laboratory, Trivandrum."
(ix)
"He further stated that the report received 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 delivery 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 vernacular 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 "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." Coming now to the merits of this Appeal when P.W. 16 and
D.W. 2 moved the High Court for expunging the adverse remarks against them the
scope of the enquiry was confined to the bonafides of their action in the
investigation proceeding 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. Furthermore 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 comprehension 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 surprising to find has not applied its mind to the series of
suspicious 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 investigation 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 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.
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 importance 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 functions 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
Magistrates 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 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, 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 satisfied 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 remarks 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.
Back