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 Detachment 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 of doubt and acquitted him of the charge under Section 302 I.P.C. It is significant to note that the acquittal was not rendered in acceptance of the defence case that Komalavalli had committed suicide but because the Court felt that it would not be safe to act upon the evidence of P.W. 2, the son and P.W. 3, the neighbour and convict the accused for the offence of murder.
In the course of his judgment the Sessions Judge made severe comments against P.W. 16, the Inspector of Police, D.W. 2, Head Constable and another Policeman P.C. 2599 and observed as follows:
"Therefore in my view this is a fit case where
appropriate action has to be taken against
P.W. 16, D.W. 2 and P.C. 2599 who wrote Ext. D
14 for the reasons stated earlier. Otherwise
indiscipline and the tendency to tamper with
official documents and create false documents
will set at naught the very purpose of having
a police establishment. When one wing of the
police establishment tries to investigate
properly and to book the culprit, P.W. 16,
D.W. 2 and P.C. 2599 were trying to neutralise
all the work that has been done by the Crime
Detachment and to help the accused to get an
acquittal. This is a serious situation which
the higher authorities in the police depart-
ment have to take serious notice of and curb
the tendency even in the beginning."
Aggrieved by the strictures passed by the Sessions Judge, the Inspector (P.W. 16) and the Head Constable (D.W. 2) filed Criminal Misc. Petitions before the High Court of Kerala for expunging the adverse remarks made against them. A learned single judge of the High Court, without making any examination of the conduct of the petitioners before him and without considering whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant in the dock for having failed to place before the Court the scientific materials which P.W. 16 had obtained in the course of investigation to find out whether Komalavalli’s death was due to suicide or homicide. The learned judge had taken it for granted that P.W. 16 and D.W. 2 had acted in a blemishless manner and that the report of the Forensic Science Laboratory had been obtained through bona fide investigative process and it was the appellant who had schemingly kept back the crucial records from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncertain terms. The relevant portions in the judgment where the appellant who was examined as P.W. 17 in the Sessions Trial has been criticised are as under:-
"(para 6.) P.W. 17, Dy. S.P. who conducted the
investigation kept the above facts concealed
purposely. If the report sent by the Assistant
Director of forensic Science Laboratory was
made available to the court it would have gone
a long way to establish innocence of the
accused. So to foist a false case of murder on
the account he did not send the report of the
Assistant Director of Forensic Science Labora-
tory to the Court. He pleaded complete igno-
rance of the above examination when examined
before court.
(para 8.) The part played by P.W. 17 is not
beyond suspicion. He had purposely concealed
materials which were favourable to the ac-
cused. It would appear that this officer was
averse to scientific methods being made use of
in investigation of crimes. His attempt was
only to see that the accused is convicted in
this case. This should not have been the
approach of a senior officer like P.W. 17, who
was investigating a very serious crime. The
life and liberty of innocent persons should
not be placed at the mercy of such unscrupu-
lous officers. It will be proper for the
higher officers in the department to look into
this matter and take proper corrective meas-
ures for future guidance."
Stung by the remarks made against him without even heating, the appellant has preferred this Appeal to seek expunction of the remarks.
Now let us have a look at the distressing and suspicious features noticed by the Sessions Judge in the conduct of P.W. 16 and D .W. 2 in the "cellophone tape test" carried out by them and in obtaining the report of the Forensic Science Laboratory and the despatch of the opinion to the Crime Detachment. The relevant portions extracted from the Judgment are as follows:-
(i) "The inquest Report prepared by this
witness (P.W. 16) does not show that he had
seized any cellophone tape or coir or that
they were sent to the Forensic Science Labora-
tory":
(ii) "There are no documents to show that the
tape and coir
were taken into custody for the purpose of
sending them to the Forensic Science Laborato-
ry in the case diary":
(iii) "Normally any material to be examined
by the Forensic Science Laboratory will be
sent only through the court. Admittedly the
cellophone tape and the coir were not sent
through court. On the other hand it is stated
that they were sent to the laboratory through
a constable. But the case diary does not show
that any constable was sent to the Forensic
Science Laboratory for handing over these
articles":
(iv) "P.W. 16 did not prepare, any mahazar
for seizure of any cellophone tape and inquest
report also does not state anything about any
tape said to have been affixed by him on the
palm or the dead body and taken for the pur-
pose of examination at the laboratory";
(v) "D.W. 1 Assistant Director of the
Forensic Science Laboratory, Trivandrum,
examined by the defence to prove his report
Exhibit D. 10 regarding the presence of small
bits of coconut fibres beating similarity to
the coir rope that was also sent, had stated
in cross examination that even if the tape was
affixed to the coir (instead of the palms) and
then sent, it will contain the fibres similar
to the one found on the coir":
(vi) "The investigation was taken over by
the Crime Detachment on 26. 11. 1980. The
cellophone tapes and the coir pieces are said
to have been sent by P.W. 16 to the laboratory
on 1.12.80 when he had ceased to be the Inves-
tigating Officer;"
(vii) "Even if he had taken any cellophone
tape and coir pieces at the time of inquest or
thereafter and wanted them to be examined by
the laboratory the proper course for him would
have been to send them to the Dy. S.P. who was
investigating the case on 1.12. 1980;"
(viii) D .W. 2 Head Constable, summoned and
examined by the defence to prove the sending
of the cellophone tapes and coir to the labo-
ratory and the report received from the labo-
ratory had stated "that there is no document
in the
Policy Station to prove that cellophone tape
or coir piece were sent from Karunagappally
Police Station to the Forensic Science Labora-
tory, Trivandrum."
(ix) "He further stated that the report re-
ceived from the laboratory was sent to the
Crime Detachment on 7.1. 1981 but claimed that
there is nothing to show that it was received
by any officer of the Crime Detachment Office.
The despatch register Ext. D13 only shows that
a cover was handed over to a constable for
delivery to the Crime Detachment Office. But
there is no acknowledgement to show that the
constable had actually handed over the same to
the office of the Crime Detachment at Quilon."
(x) "D.W. 2 produced a notebook Ext. D. 14
said to have been maintained by the constable
to whom this cover was handed over for deliv-
ery at the office of the Crime Detachment. In
this the curious aspect is that the entry
regarding this handing over is written in a
sheet of paper which is affixed in the note
book as an extra sheet ...... This entry
Ext. D. 14 has been purposely manufactured for
the purpose of this case and I have no doubt
that it has been done at the instance of D.W.
2 the Head Constable and P.C. 2599 who wrote
Ext. D. 14. Therefore the constable who wrote
Ext. D. 14 and DW 2 are equally responsible
for this fraud."
(xi) "The extent to which DW2 would go to help
the accused is evident from the fact that he
voluntarily producted Ext. D.17."
(xii) "Ext. D.17 is a letter sent from the
Forensic Science Laboratory to the S.I. on
15.11.1980." This letter states that the
sealed packet said to contain the MOs involved
in Crime 220 of 1980 of Karunagapally Police
Station were being returned unopened for want
of forwarding note and certificate and hence
the sealed packet may be resubmitted with
proper forwarding note and certificate. At the
bottom of this letter in vernacular it is
written "cellophone tape." Except this vernac-
ular writing there is nothing to show that the
MOs referred to in Ext. D. 17 were cellophone
tape and coir piece ...... As the packet
sent from the Karunagapally Police Station was
not opened, by the Forensic Science
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 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 impor-
tance in the administration of justice, it is
this: the proper freedom and independence of
Judges and Magistrates must be maintained and
they must be allowed to perform their func-
tions freely and fearlessly and without undue
interference by anybody, even by this Court.
At the same time it is equally necessary that
in expressing their opinions Judges and Magis-
trates must be guided by considerations of
justice, fair play and restraint. It is not
infrequent that sweeping generalisations
defeat the very purpose for which they are
made. It has been judicially recognised that
in the matter of making disparaging remarks
against persons or authorities whose conduct
comes into consideration before courts of law
in cases to be decided by them, it is relevant
to consider (a) whether the party whose con-
duct is in question is before the court or has
an opportunity of explaining or defending
himself; (b) whether there is evidence on
record bearing on that conduct justifying the
remarks; and (c) whether it is necessary for
the decision of the case, as an integral part
thereof, to animadvert on that conduct. It has
also been recognised that judicial pronounce-
ments must be judicial in nature, and should
not normally depart from sobriety, moderation
and reserve". This ratio has been followed in R.K. Lakshmannan v. A.K. Srinivasan, [1976] 1 SCR 204: AIR 1975 SC 1741 and Niranjan Patnaik v. Sashibhushan Kar & Anr., [1986] 2 SCC 569 (to which one of us was a party). Judged in the light of the above tests, it may be seen that none of the tests is 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.