Appeal Nos
4452 53 of 1986 463 From the Judgment and Order dated 1661986 of the Bombay High Court in Appeal No 216 of 1986
DR Dhanuka VM Tarkunde and Dr LM Singhvi Pramod Swarup Milind Sathe PN Gupta PC Srivastava US Prasad AM Singhvi C Mughopadhaya Raian Karanjawala Mrs Manik Karanjawala Hardeep section Anand Ejaz Moqbool section Radhakrishn anand Surya Kant for the appearing parties
The Judgment of the Court was delivered by SABYASACHI MUKHARJI J
These two special leave peti tions arise out of the decision of the Bombay High Court in the appeal No 216 of 1986
Leave as asked for is granted in both and appeals arising therefrom are disposed of by this judgment
The first appeal was filed by the appellant Shivajirao Nilangekar Patil who was at the
relevant time the Chief Minister of the State Maharashtra and the second one was filed by Dr Mahesh Madhav Gosavi the applicant in the original writ petition out of which appeal ultimately came to the Division Bench of the Bombay High Court resulting in Civil Appeal No 216 of 1986
The controversy in this case centers round the conduct if any of the appellant in the first appeal in the MD Theory examination in the discipline of Gynaecology and Obstetrics held by the University of Bombay on 14th to 17th October 1985
In that subject the practical examination was held by the University at KEM Hospital Bombay
This is a well known hospital in Bombay and we are told that it is run by the Municipality
The total number of candidates registered for the examination was 52 of which 5 remained absent
One Dr Mahesh Madhav Gosavi original petitioner who was at the relevant time Assistant Medical Officer of KEM Hospital Bombay was the petitioner
He and Smt
Dr Chandrakala Patil alias Dawale a Junior Assistant Medical Officer in the said KEM Hospital Bombay who was re spondent No 4 to the original petition and one Dr Mrs Smita Thakkar who was respondent No 5 were three candidates amongst others who had appeared for the examination
One Dr MY Rawal was the head of the Department of Gynaecology and Obstetrics in the said hospital and was the convener of the Board for the said examination
Respondent No 4 of the original petition Smt
Chandrakala Patil is the daughter of the appellant the erstwhile Chief Minister of Maharashtra
The appellant was at the relevant time the Chief Minister of Maharashtra
On 15th November 1985 a circular was issued by the Univer sity of 464 Bombay convening a meeting of local examiners for the final isation of MD results on 18th November 1985
On the said 18th November 1985 the meeting was attended only by Dr Rawal as Dr Mukherjee another coexaminer was not available at Bombay
On 30th November 1985 the result of MD exami nation was declared
Out of the 47 candidates who had ap peared for the examination 34 candidates were declared successful including Dr Chandrakala Patil alias Dawale and Dr Mrs Smita Thakkar
The petitioner Dr Gosavi was declared to have failed
Upon these a petition was filed by Dr Gosavi under article 226 of the Constitution of India in the High Court of Bombay
Our attention was drawn to the fact that in the affida vit in support of the petition one Dr Manikant Mishra had stated that he had approached Dr Rawal to find out whether his wife had appeared in the said MD examination and it was alleged that on this occasion he had over heard certain alleged conversation between Dr Rawal and Smt
Chandrakala Patil daughter of the Chief Minister
It transpired later that Mrs Kalpna Misra wife of the said Manikant Misra was not even registered as a candidate
In the petition under article 226 of the Constitution filed before the High Court of Bombay on 16th January 1986 Dr Gosavi challenged the results declared in the said examination
The petitioner had claimed that he had been working as a junior Assistant Medical Officer and that he had done his housemanship in the Department of Obstetrics and Gynaecology at KEM Hospital Respondent No 2 ie Dr Rawal was the Head of the Department of the same
It was further the case of the petitioner that due to some reasons the petitioner had no good terms with the said respondent No 2
The petitioner had passed the MBBS examination in April 1981 and after completion of internship got registra tion for MD Obstetrics and Gynaecology in June 1982
It was further the case of the petitioner that the petitioner had completed all the requirements and conditions for ap pearing for the MD examination
The petitioner stated that the University had declared examination programme and the petitioner thereafter had appeared for the said MD exami nation in the month of OctoberNovember 1985
There are several allegations made by the petitioner about the irregularities and it was further alleged inter alia that the grade sheets were manipulated and tampered with as a result of which the said Dr Chandrakala Patil and Dr Smita Thakkar were passed by respondent No2 Dr Rawal at the instance and behest of respondent No 3 in that petition the appellant in the first appeal being the Chief Minister of Maharashtra at the relevant time
He prayed that the record of grade sheet submitted to the University of Bombay 465 by all the four examiners of MD in Obstetrics and Gynae cology examination necessary papers and rules and regula tions should be produced and to set aside the result of the MD examination to the extent that those students who had secured P minus grade be disqualified
It was further asked to declare those students who secured upto any number of P minus to be passed
A prayer was made in the writ petition filed in the High Court for producing grade sheets
The petitioner incidentally verified the petition stat ing that the contents of paragraphs 1 to 22 and paragraphs 24 to 30 were true to his own knowledge while various other relevant paragraphs were verified as information received from reliable sources but the source was not disclosed
In these circumstances the petitioner claimed that the results declared in respect of some of the candidates declared failed should have been declared passed
The allegations had been made against the appellant in paragraphs 14 and 25 of the petition
In paragraph 14 it was alleged that after these irregularities came to light the petitioner in the original petition had started enquiringas to the way in which respondent No 2 had committed these irregularities
The petitioner thereafter learnt that one Sree PK Shah who happened to be a good friend of Dr MY Rawal respondent No 2 in the original petition and also happened to be a good friend of respondent No 4 as they were together as the assistant medical officers at KEM Hospital Bombay
The petitioner also learnt that the said Dr PK Shah and Dr MY Rawal though not permitted by Rules and Regulations had been practising in Zaveri Clinic for Dr CL Zaveri since long time and thus they became dose friends
It is also learnt that on behalf of Dr Mrs Chandrakala Patil who is the daughter of erstwhile Chief Minister of Maharashtra the said PK Shah met respondent No 2 and requested him that Dr Mrs Chandrakala Patil had appeared several times for MD Examination Obs  Gyn but could not get through and therefore she should be shown some favour
It was learnt that the respondent No 2 informed the said Dr PK Shah that he would definitely favour Dr Mrs Chandrakala Patil if she failed provided the Chief Minister himself phoned him personally
The respondent No 2 also told the said Dr PK Shah that he would come to know about the result only after the submission of the grade sheet to the University because thereafter only one would know the position with regard to the names of the students who have failed and till that time he would not know
It was further stated that it was learnt that the respondent No 2 also informed the said Dr PK Shah that he would take the risk only if the Chief Minister gave him a telephone ring otherwise he would not
It was alleged that the respondent No 3 in the original petition and the appellant herein after receiving this message from the respondent No 4 and from Dr PK Shah accordingly contacted respondent No 2 and requested him to favour his daughter
466 In paragraph 25 of the petition the petitioner stated as follows The petitioner states that on the basis of information from reliable source the peti tioner has made allegations on Chief Minister of Maharashtra therefore he has been made respondent No 3 in this writ petition
 These were the only allegations upon which the petition was factually based
The necessary verification has been set out hereinbefore
The appellant Shri Shivajirao Nilengekar Patil filed an affidavit denying the allegations in para graphs 14 and 25 of the application stating that he had played no part in the said examination as alleged or other wise
It was also stated in the aforesaid affidavit that the petitioner has not disclosed the so called  reliable sources of information
No affidavit was filed by the peti tioner himself
The alleged source of information was not disclosed at any time
As mentioned hereinbefore an affida vit was filed by one Dr Manikant Mishra on 28th February 1986 in support of the allegations
Further affidavit was sought to be tendered on behalf of the petitioner to the learned single judge regarding certain additional facts after the final hearing had started before the learned single judge of the High Court of Bombay
It may be men tioned as a matter of historical record that Dr MS Gore Vice Chancellor of University of Bombay resigned
The learned single judge by his judgment held that the evidence of the petitioner as well as of Dr Misra were unsatisfactory and unreliable
Reference was made to the submissions of the petitioner s counsel relying under sec tion 114 of the Evidence Act
In para 18 of the judgment it was held that it could be reasonably inferred that altering and tampering of the gradesheets were done by Dr Rawal at the behest of respondents No 3 and 4
On 7th March 1986 the day after the judgment the appellant Shivajirao Ni langekar Patil resigned as the Chief Minister of State of Maharashtra in view of the Judgment
It may be mentioned that on or after 14th April 1986 certain affidavits were sought to be filed on behalf of the petitioner in pending appeals purporting to rely upon certain allegations in writ petition No 1709 of 1985 filed by Sub Inspector Lambe challenging the order of transfer and also an article which had appeared in INDIA TODAY
The Division Bench of the Bombay High Court rejected the prayer to adduce the additional evidence
We have perused the nature of the additional evidence which were sought to be adduced as is apparently from the special leave applica tion by Dr Gosavi the original petitioner in the writ petition and the respondent in the first appeal herein
These deal with the alleged involvement of the erstwhile Chief Minister of Maharasthra in the matter of 467 the careers of his son his son in law and in respect of transfer of one Inspector Lambe
As the additional evidence were not admitted and the appellant in the first appeal herein had no opportunity to deal with the same it would not be fair to take these allegations into consideration
But these if true make dismal reading and give a sordid picture of the state of administration prevailing at that time in the State of Maharashtra
But as the High Court did not admit these perhaps because these were belated and perhaps would have unnecesserily prolonged the trial and were not directly connected with the immediate issues before the High Court this Court in the exercise of its jurisdic tion under Article 136 ofthe Constitution would not inter fere with the decision of non admission of these additional evidence and say no more
On 16th June 1986 the Division Bench of the Bombay High Court in appeal No 216 of 1986 delivered judgment holding in para 35 of the judgment that the conclusion arrived at against Shri Nilangekar Patil was to be regarded merely as an adverse comment and not as a finding of fact
To that extent the finding of the learned single judge was upset
The special appeal has been preferred by the original petitioner against the appellant challenging the findings respectively
In the appeal by the original petitioner an affidavit had been filed in this case claiming the right to adduce additional evidence
The controversy before this court is rather narrow namely was there justification for the remarks made by the learned trial judge against the appellant Patil in his judgment to the extent that manipulations in the grade sheets of MD examination was done at the behest of the appellant the then Chief Minister of Maharashtra to help respondent No 4 to pass the MD examination can the same be justified either as a finding of fact or as a comment In order to consider the same must be examined in little de tail
Something is rotten in the state of Denmark sensed Marcellus in Scene V of Act 1 in Shakespeare s Hamlet
It can well be lamented that there was something rotten in once premier and prestigious University of Bombay as the facts reveal
Justice Pendse of the Bombay High Court the learned single judge before whom the matter came up for hearing has in an exhaustive discussion narrated the sad state of af fairs in this University of Bombay which has produced so many eminent professors and students
The University of Bombay conducts MD examinations inter alia in the disciplines of Obstetrics and Gynaecology in the Faculty of Medicine
The theory examination consists of four papers of which paper No IV is of Essay
The theory papers 1 to 111 consist of three questions each
The practical clinical examination consists of a long and short case in obstetrics and a long and short case in Gynaecology and Viva
The theory papers are assessed by individual 468 examiners and the grades are allotted in respect of each question in each paper n accordance with the provisions set out in the note giving special instructions to the examiners in the Faculty of Medicine
The MD theory examination in the instant case was held between 14th October and 17th October 1985 and was followed by practical examination which was held between 4th November and 9th November 1985
The University had appointed four paper setters and examin ers in accordance with the necessary provisions of the Act two of which were internal examiners namely Dr MY Rawal as mentioned hereinbefore and one Dr SN Mukherjee from Indian Navy
There were two external examiners who were Dr Mrs A Nafeesa Beebi from Madras and gr
ST Watwe of Sangli
It is not necessary to deal in more detail with the 7actual aspects which as mentioned hereinbefore have been exhaustively set out in the judgment of the learned single judge and which were not disputed before us by any of the parties
We may mention that grading had to be made on the following lines as noted in the judgment of the trial judge G Good p Little better than passing  p Passing Border line failure F Failure
The learned single judge noted that 37 candidates had been declared successful including respondent No 4 being Chandrakala Patil and respondent No 5 Dr Mrs Smita Thak ker
The other respondents No 6 to 15 mentioned hereinbe fore were other successful candidates whose result came to be nullified and made subject to re examination by the judgment of the learned single judge
We are not concerned with this aspect or with them any more
The petitioner had claimed that he had wrongly been declared as failed
The petitioner stated that he had some doubts as to whether his code number was properly decoded and he made various other allegations
The petitioner complained and the gravamen of his charges was that there were large number of irregulari ties in the declaration of result and mark sheet was tam pered in favour of respondent No 4 Chandrakala Patil who is the daughter of the erstwhile Chief Minister and that Dr Rawal was instrumental in tampering with the result which was done at the behest of the then Chief Minister
The learned judge came to the conclusion that Dr Rawal alone was responsible for tampering with and altering the tabulat ed grade sheet of theory examination
After discussing all these aspects in detail at the concluding paragraph 15 of the judgment the learned judge had observed that he had no hesitation in concluding that Dr Rawal was responsible for manipulating the result by tampering with and altering the grade sheet so as to favour respondent No 4 469 and respondent No 5 in the writ petition namely Chandrakala Patil and Dr Smita Thakkar
The next question and which is the main issue before us to which the learned judge s attention was drawn was whether the manipulation was done by Dr Rawal at the in stance of or behest of respondent No 3 the appellant herein the then Chief Minister of Maharashtra
The learned judge discussed the evidence in great detail
The allega tions in respect of the same are contained in paragraph 14 of the petition which have been set out hereinbefore
The learned judge noted after setting out the gist of the allegation in paragraph 14 of the petition that the averments made in that paragraph were wholly unsatisfactory and insufficient because the petitioner to the writ petition and the respondent herein had not disclosed from whom he had learnt what he had averred
We are in entire agreement with that conclusion of the learned single judge
Indeed this aspect was not disputed by any of the parties before us
The learned single judge further noted that the allegations were not only denied by Dr Rawal Dr Shah and Chandrakala Patil but also by the Chief Minister the appellant on oath by filing affidavit
Dr Shah had claimed that he had never contacted Dr Rawal in connection with the examination of respondent No 4 and so was the claim of respondent No 4 and of Dr Rawal
The appellant in his affidavit dated 26th January 1986 had stated that Dr Shah did not send any message nor did be contact Dr Rawal at any stage
An effort was made by the original petitioner respondent herein to establish by direct evidence the link between Dr Rawal and respondent No 4 by relying upon the evidence of one Dr Mishra sworn on 28th February 1986
Dr Mishra had claimed that his wife who is a doctor had left home to appear in MD examination in November 1985 but subsequently the wife declined to answer as to whether she had appeared or not
Dr Mishra claimed that he went to Dr Rawal to enquire and he noticed that respondent No 4 was sitting in the doctor s chamber
Dr Mishra claimed that he over heard Dr Rawal telling respondent No 4 about her poor performance in the examination and suggested that he could do something only if her father the Chief Minister gave any message
The learned single judge observed in his judgment the less said about this affidavit was better
The learned judge further observed that it was impossible to place any reli ance on the evidence of Dr Mishra as it was not known how he came to contact the original petitioner respondent herein or why he did not choose to file affidavit till 28th February 1986
Dr Rawal had denied in his evidence that this Mishra came to see him and pointed out that on that relevant date that he was heavily occupied and he had hardly any time to contact any visitor
Chandrakala Patil also denied the meeting that transpired between her and Dr Rawal
In the judgment of the learned trial 470 judge it was unsafe to place any reliance on the words of Mishra
We respectfully agree
The learned judge thereafter concluded that there was no direct evidence to establish the involvement of respondent No 3 the erstwhile Chief Minis ter or the daughter respondent No 4 in the original writ petition in securing favourable result from Dr rawal
The learned judge noted that counsel appearing on behalf of the petitioner before the trial judge had accepted this position but had urged that it was not possible or in any event extremely difficult to establish by direct evidence the link between the wrong doer and the benefit seeker in such cases
It was therefore submitted that it was necessary for the court to draw inference from the probabilities of the case as well as the surrounding circumstances
Reliance was placed on the principles of section 114 of the Indian Evi dence Act and it was claimed that from the facts found by the High Court the inference was irresistible that the results were tampered with or altered at the behest of the erstwhile Chief Minister and his daughter
After referring to the factual position and noting the principles of law the learned judge observed that undoubt edly there was no direct evidence that the result of re spondent No 4 namely Smt
Chandrakala Patil was tampered with at the behest of the appellant Shivajirao Nilangekar Patil respondent No 3 in the original petition but that would not automatically lead to the conclusion that the charges against the said respondents No 3 and 4 to the original petition were not established
The learned judge went on to observe that it would be a mockery of justice if the courts chose to close their eyes to the facts which were brought on record by the University by producing the origi nal documents etc
The learned judge observed that it in the facts and circumstances of this case could reasonably be inferred that the alteration was done at the behest of Nilangekar Patil erstwhile Chief Minister and her daughter Chandrakala Patil
It could not be overlooked according to the learned judge that only these three were interested in securing favourable result at the examination According to the learned judge there were two contingencies which had to be taken into consideration
The first was that respondent No 4 Smt
Chandrakala Patil might have used the name of her father the erstwhile Chief Minister to secure favour able result from Dr Rawal and secondly the appellant the erstwhile Chief Minister might have used his office to obtain a favourable result for his daughter
Learned counsel on behalf of the original petitioner had urged before learned trial single judge that the third contingency could not be overlooked that it was probable that Dr Rawal on his own did all these
Learned trial judge rejected the third contingency as wholly improbable
He was of the view that Dr Rawal was an experienced examiner and he was not young or immature and it was impossible to accept the view that a person like Dr Rawal would proceed to do a criminal act and tamper with the record of the examination on his own with a view merely to 471 please the people in power
No same person according to learned judge was likely to take such risk unless he was prompted to do so and given an assurance of protection by the persons in power
The learned judge was of the view that the risk involved in what Dr Rawal had done was so enormous that it was difficult to conceive that he did it on his own
It was further urged by learned counsel before learned trial judge that respondent No 4 Chandrakala Patil had failed in the examination on three previous occasions when her father was Law Minister and yet previously the said Nilangekar Patil respondent No 3 had not used his influence and power therefore it was difficult to accept the position that he would do it on this occasion
This hypothetical question according to the learned trial judge overlooked the fact that every examiner was not necessarily obliging or subservient as Dr Rawal was
The learned judge therefore concluded that the corollary of this finding was that Dr Rawal had done it at the behest of either the appellant Nilangekar Patil or Chandrakala Patil or both of them
Then the learned judge passed some strictures on Dr Rawal and suggested some punishment and gave certain directions about examination of 12 other candidates whose results were also affected by the conduct of Dr Rawal
As these appeals are not concerned with the same it is not necessary to refer to these
The learned judge directed that the result declared on 30th November 1985 in respect of respondents nos
4 to 15 be revoked and that there should be fresh examination by the other examiners
These appeals are also not concerned with such direction
It may be mentioned that an application was made before the learned trial judge for adducing certain additional evidence on behalf of the petitioner
As the learned trial judge thought that it would prolong the trial and for other reasons he declined to admit the additional evidence
As mentioned hereinbefore there are three appeals filed namely appeal No 214 of 1986 by Dr Rawal appeal No 215 of 1986 by Chandrakala Patil and appeal No 216 of 1986 by Nilangekar Patil
These appeals came up before a division bench consisting of Kania Ag
CJ Shah J of the Bombay High Court
By a judgment delivered on 16th June 1986 these appeals were disposed of
So far as appeal No 214 of 1986 by Dr Rawal was concerned the division bench found that some of the remarks against Dr Rawal were too harsh and the punishment was too severe
They directed that enquiry be held against him
These appeals are not concerned with this
So far as appeal No 215 of 1986 preferred by Chandrakala Patil was concerned the same was dismissed with no order as to costs
No appeal had been preferred to this Court from the said decision So far as appeal No 216 of 1986 before the divi sion bench was concerned the learned judges pointed out after discussing the evidence and the principles of law that there was no direct 472 evidence that the alterations in the grades of Chandrakala Patil were made at the instance of the appellant
According to the division bench the reasoning of the learned trial judge in coming to the conclusion that respondent Nos 3 and 4 to the original petition were responsible for getting Dr Rawal to alter the grades aforesaid was based on certain contingencies
According to the division bench the reason ings adopted by the learned trial judge were too tenuous for the conclusion based on such reasoning to amount to a posi tive finding
The Division Bench observed that merely be cause respondent No 3 in the original petition had held a position of great power and would have been happy to see that his daughter respondent No 4 and passed the MD examination it was little difficult to conclude as a find ing of fact that he must have influenced respondent No 2 to alter the grades of his daughter
The learned Division Bench noted that it was true that a seasoned examiner like Dr Rawal would not have taken the risk involved in altering the grades except under a great pressure of persuasion
The position that grades were altered was upheld by the division bench
The Division Bench however was of the opinion that there might have been various motives which might have induced Dr Rawal to take the risk and alter the grades
The division bench observed that theoretically it was possible to conclude as was urged by Mr Dhanuka the learned coun sel that the respondent No 4 might have used the name of her father and persuaded Dr Rawal to alter the grades or some other influential person might have intervened and persuaded Dr Rawal to alter the grades on the footing that respondent No 3 would be very happy to see his daughter passed and would reward Dr Rawal or take care of him or there might be some other inducement
However the Division Bench was of the view that in a11 probability Dr Rawal would not have acted unless he had made him assured that the appellant in the first appeal was behind the person who persuaded him to alter the grades
In the view of the Divi sion Bench therefore the conclusion of the learned trial judge that the grades of respondent No 4 must have been altered by respondent No 2 at the instance of respondent No 3 by using his official position under a promise of protection was certainly not one which could properly amount to a finding
The Division Bench further observed that the evidence in support of such a conclusion is too slender to support a finding of such gravity
The Division Bench was of the view that merely because the appellant held a position of great prestige and power it could not be said that the action of Dr Rawal must have been induced by him and in fact when allegation of this type is made against anyone holding a position of prestige and power it was necessary that the evidence should be closely examined before holding such allegation well founded
The Division Bench in its exhaustive judgment noted various decisions of this Court as well as of the English Courts
The High Court referred to the decision of this Court in Niranjan Patnaik vs Sashibhu shan Kar and Another   a decision in which the judgment was delivered by one of us section Natarajan J
473 The High Court observed that the remarks made against the appellant Nilangekar Patil cannot be supported as conclu sions arrived at against him but these can be regarded as comments and not finding of fact and such comments were not wholly unjustified in the facts of this case
The said appeal No 216 of 1986 was disposed of accordingly
The Division Bench also upheld the finding of the learned single judge that there was tampering with the grade sheets
The Division Bench also uphold the finding that Dr Rawal was mainly responsible for the same
The setting aside of the results of Smt
Chandrakala Patil and Smt
Smita Thakkar was also upheld
So far as the learned trial judge held that the same was done at the behest of the erstwhile Chief Minister the same was not upheld as a finding of fact but remarks to that fact made by the learned trial judge were not interfered with
An affidavit was filed claiming the right to adduce certain additional evidence and introducing certain writings from the magazine INDIA TODAY etc
Such additional evidence were sought to be introduced as part of the claim of public interest litigation because it involved the conduct of the Chief Minister in respect of the affairs of the University
Such claim for introduction of additional evidence was however not entertained by the Division Bench
The Division Bench however in its judgment noted that the appellant was party to the writ petition and had an opportunity of explaining and defending himself
There were materials on record bearing on his conduct justifying the remarks which the Division Bench characterised as comments and not findings
A prayer was made before the Division Bench for deletion of such remarks
The Division Bench was of the view that as the appellant had opportunity to meet such remarks and such remarks were made upon hearing of the petition the question as to the conduct of the appellant in the episode was a matter of argument and it naturally fell for consideration before the Court
Judging the conduct of respondent No 2 ie Dr Rawal the part played by the appellant erstwhile Chief Minister naturally fell for con sideration
If the finding of the learned trial judge according to the Division Bench was looked upon as more adverse comments and not as a finding as such there could not be any objection to the same
The Division Bench was further of the view that the circumstances noted by the learned judge against the appellant Nilangekar Patil afore said formed a reasonable and cogent basis for adverse comment on his conduct
However the Division Bench made it clear that these were merely in the nature of adverse com ments and based on the material on record and at the hearing of a proceeding which involved the taking of evidence merely on affidavits
According to the Division Bench a fuller enquiry might lead to a conclusion that the comment was not justified
In view of this the Division Bench had asked the learned counsel for the appellant Shri Dhanuka whether the appellant desired that there should be a full fledged factu al enquiry into the charges of the alteration of the grades of respondent No 4 having been altered as aforesaid with a view to pass respondent No 4 Smt
Chandrakala Patil and 474 further that this was done at the instance of the erstwhile Chief Minister
The Division Bench noted that the appellant made no request for any such enquiry and he was merely taking a stand on the footing that the evidence on record did not justify any conclusion being arrived at or a comment being made against respondent No 3
The Division Bench suggested that even at that stage if the appellant wanted a full fledged enquiry and requested the University to hold the same the University might hold such an enquiry into the results of MD examination in Gynaecology and Obstectrics held in November 1985 particularly in respect of the results of respondents Nos 4  5 but if such an enquiry was held the person designated to hold the enquiry should be selected with the consent of the Chief Justice of the Bombay High Court
Two appeals one arising out of Special Leave Petition Civil No 7568 of 1986 filed by Shivajirao Nilangekar Patil against the alleged adverse remarks and the other arising out of Special Leave Petition Civil No 10665 of 1986 by the original petitioner are before this Court
There is an application for introduction of additional evidence
There are three points involved in these two appeals
Firstly we have to determine in the appeal by the appel lant Nilangekar Patil the erstwhile Chief Minister of Maharashtra whether the observations made by the division bench about the comments on the conduct of the Chief Minis ter were justified or not or should be expunged
Secondly and connected with the first question is the question wheth er the Division Bench of the Bombay High Court was right in upsetting the finding that the tampering with the grade sheets was done at the behest of the Chief Minister was a finding based on no evidence and thirdly whether in the facts and circumstances of this case the court was justified in refusing to admit additional evidence and whether we should at this stage admit additional evidence
The additional evidence as we have mentioned hereinbe fore consist of certain report in INDIA TODAY and certain other Magazines and certain affidavits
The basic principle of admission of additional evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance
Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence
Thirdly that additional evidence was relevant for the determination of the issue
The additional evidence sought to be introduced mainly consist of alleged instances when the Chief Minister on previous occasions had in respect of some criminal proceedings and other matters pending used his influence to drop those proceedings
Now about these these are controvertial allegations
There is no satisfacto ry explanation that these so called material in the form of 475 additional evidence could not have been obtained before the institution of the petition in the High Court
To this Mr Tarkunde s submission was that it was difficult to gather evidence against a Chief Minister in office but as the case had gathered momentum people had come in and after decision of the learned trial judge the Chief Minister had resigned and there was an atmosphere of belief for offering to adduce evidence which people were hesitant to give before that
We are of the opinion that at this belated stage there was not sufficient material ground on which additional evidence should be admitted for the determination of the issues involved in these appeals
In the appeal filed by the original petitioner Dr Mahesh Madhav Gosavi it was submitted that there were sufficient materials upon which the conclusion arrived at by the learned trial judge that the tampering was done at the behest of the erstwhile Chief Minister and the Division Bench was in error in deciding that that was not the find ing of fact
Mr Tarkunde conceded and in our opinion rightly that the view of the Division Bench that the obser vation of the learned single judge that tampering of the grade sheets in MD examination was done at the behest of the Chief Minister was in the nature of a comment and not a finding was a distinction without any difference
We are of the opinion that he is right in this submission
We are also of the opinion that the Division Bench was right in holding that there was no direct evidence
We are conscious that in a situation of this type it is difficult to obtain direct evidence
So far as admission of additional evidence is concerned we are unable to accept the position that such additional evidence should have been admitted in order to show the nature of the conduct of the Chief Minister in other cases in similar situations
The admissibility of evidence as to similar fact  has been considered by the courts
In this connection it may be instructive to refer to the observations of Lord Denning in Mood Music Publishing Co Ltd vs Dc
Wolfe Ltd 1976 1 All England Law Reports 763 at 766
 to the following ef fect The admissibility of evidence as to similar facts  has been much considered in the crimi nal law
Some of them have reached the highest tribunal the latest of them being Boardman vs Director of Public Prosecutions 19743 All ER 887 1975 A C 421
The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice and its admission will not operate unfairly to the accused
In civil cases the courts have followed a similar line but have not been 476 so chary of admitting it
In civil cases the courts will admit evidence of similar facts if it is logically probative that is if it is logically relevant in determining the matter which is in issue  provided that it is not oppressive or unfair to the other side and also that the other side has fair notice of it and is able to deal with it
 On this aspect cross On Evidence Sixth Edition page 346 has observed that although in some early Civil cases in England rejected similar fact evidence as res inter alias act it was soon accepted that the rule of exclusion was certainly no stricter than that in criminal cases
The real question was whether there was a special rule of exclusion at all or whether it were not rather a question of simple relevance in each case
The learned author noted that in more recent time there has been a further relaxation of the exclusionary rules in civil cases
Cross at page 346347 further noted that the aforesaid observations of Lord Den ning might be interpreted as applying in civil cases a similar sort of balancing approach to the rules for the admissibility of similar fact evidence as applied in crimi nal cases
The factors to be weighed were however different on account of the peculiar position of the accused in crimi nal cases
The learned author noted that there was very high authority accounting for the existence of an exclusionary discretion in criminal cases solely by reference to the accused s vulnerability to prejudice
Applying the aforesaid principles to the facts as we have mentioned hereinbefore we are of the opinion that the allegations of alleged conduct of the appellant in similar cases would not be a safe basis upon which to admit addi tional evidence in this case having regard to the issues involved and nature of the issues involved in these matters and at the stage when these were sought to be introduced
In support of the appellant in Civil Appeal arising out of Special Leave Petition No 7568 of 1986 Dr Singhvi submitted that the petitionerappellant had suffered and would continue to suffer serious civil consequences on account of findings or adverse comments or strictures made by the learned single judge
It was in those circumstances that this appeal had been filed The appellant had resigned as Chief Minister and he is due according to Dr Singhvi to contest the bye election in November 1986
He has fur ther submitted that the question in these appeals had to be viewed in the perspective of law and strictly on the basis of the record and should not be permitted to be politicised either by extraneous allusions or by
presumptions and pre suppositions inconsistent with legal principles or by an attempt by political opponents to convert the proceedings into a political trial
It was his submission that the averments and the supporting affidavits which formed the 477 basis of the allegations against the appellant were dealt with in the two courts below in the manner as we have indi cated
He specially referred to the observations of the learned single judge about the affidavit in support of these allegations
He also relied on the observation on Dr Mi shra s affidavit and the adverse comments made by the learned single judge on Dr Mishra s affidavit
He also referred to the finding of the Division Bench that the petitioner had no personal knowledge of this incident nor had he disclosed the source of the information
That the petitioner had filed the affidavit of one Manikant Misra and then drew our attention to the various allegations and infirmities of the affidavit and specially relied on the various motives which might have induced Dr Rawal respond ent No 2 in the original petition to take the risk and alter the grades and also he referred us to the finding at page 132 of the Paper Book of the Division Bench that the evidence was much too slender in support of the charge against the appellant
He emphasised that these appeals arose out of exercise of extra ordinary jurisdiction by the civil court not by trial on examination and cross examina tion of evidence but an exercise of extra ordinary jurisdic tion on the basis of the affidavit and the court should insist that there should be commensurate  proof for judi cial certitude and that the distinction between finding  and adverse comment  was a distinction without any differ ence because it was throughout recognised as a finding
The Division Bench in Appeal No 216 of 1985 has held that the conclusion arrived at against Shri Nilangekar Patil was a comment and not a finding of fact
Dr Singhvi re ferred extensively to the affidavit of Dr Mishra and com ments of learned single judge and the Division Bench as to how unreliable such affidavit was
It was submitted that in view of the infirmities of the affidavit of Dr Mishra upon which the original petitioner Dr Mahesh Madhav Gosavi based his own petition was of such an unreliable credience that the courts should not have entertained the application
The Division Bench was unable to accept that position
We are in agreement with the Divi sion Bench
The allegations made in the petition disclose a lament able state of affairs in one of the premier universities of India
The petitioner might have moved in his private inter est but enquiry into the conduct of the examiners of the Bombay University in one Of the highest medical degrees was a matter of public interest
Such state Of affairs having been brought to the notice of the court it was the duty of the court to the public that the truth and the validity of the allegations made be inquired into
It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary 478 and private litigation assumes the character of public interest litigation and such an enquiry cannot be avoided if it is necessary and essential for the administration of justice
The allegations of the petitioner have been noted about the role of the Chief Minister
It is well to remember that Rajagopala Ayyangar J Speaking for this Court in CS
Rowjee  Ors vs Andhra Pradesh State Road Transport Corpo ration observed at page 347 of the report that where allegations of this nature were made the court must be cautious
It is true that allegation of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased in recent times
This Court made these observations as early as 1964
It is more true today than ever before
But it has to be borne in mind that things are happening in public life which were never even anticipated before and there are several glaring instances of misuse of power by men in authority and position
This is a phenomenon of which the courts are bound to take judicial notice
In the said deci sion the court noted that it is possible to decide a matter of probabilities and of the inference to be drawn from all circumstances on which no direct evidence could be adduced
The court further noted that it was somewhat unfortunate that allegations of mala fide which could have no foundation in fact were made and several cases which had come up before this Court and other courts and it had been found that these were made merely with a view to cause prejudice or in the hope that whether they have basis in fact or not some of which might at least stick
It is therefore the duty of the courts warned this Court in the said decision to scruti nize these allegations with care so as to avoid being in any manner influenced by them in cases where they have no foun dation in fact
In this task which is cast on the courts it will be conducive to have disposal and consideration of them if those against whom allegations are made came forward to place before the court either the denials or their version of the matter so that the courts might be in a position to judge whether the onus that lay upon those who make allega tions of mala fides on the part of the authorities had been discharged in proving it
Of course the facts in the in stant case are different
It is true that the basis of the allegations being the affidavit of Dr Mishra was considered by the learned single judge as well as the Division Bench to be thoroughly unreliable
In this case there was specific and categorical denial by the erstwhile Chief Minister that tampering was done at his behest
Therefore while the court should be conscious to deal with the allegations of mala fide or cast aspirations on holders of high office and power the court cannot ignore the probabilities arising from proven circumstances
Our attention was drawn by learned counsel Dr Singhvi on the observations of this Court in The Barium Chemicals Ltd and Anr vs The 479 Company Law Board and Others 1966 Supp
SCR 311 where at page 352 of the report the Court observed that where evi dence was adduced by affidavits such affidavits might be properly verified either on knowledge or from sources
But the basis of such knowledge or source of information must be clearly stated
This was laid down as early as 1909 by Jenkins CJ and Woodroofe J in Padmabati Dasi vs Rasik Lal Dhar ILR XXXVII Calcutta 259 where the Division Bench of the Calcutta High Court observed that the provisions of Order XIX rule 3 of the Code of Civil Procedure must be strictly observes every affidavit should clearly express how much is a statement of the deponent s knowledge and how much of the statement was in his belief and the grounds of belief must be stated with sufficient particularity
This has been followed more or less universally by courts in matters where reliance is placed on affidavits
This view has been reiterated by this Court in The State of Bombay vs Purushottam Jog Naik  It is on this principle that Dr Singhvi urged that the original petition should not have been entertained because of the defective affidavit in this case
Undoubtedly the affidavit and the petition were defective as mentioned hereinbefore
But the court has taken cognizance of the matter and certain inferences followed from the inherent nature of facts apparent from the facts brought before the Court
Reliance was also placed on the observations of this Court in EP Royappa vs State of Tamil Nadu  Anr  The Facts or that case need not be referred in detail except to mention that there allegation was made against the Chief Minister by a member of the Indian Admin istrative Service in the cadre of the State of Tamil Nadu for not appointing him as the Chief Secretary
Ray CJ noted in the judgment several facts which were alleged as instances indicating mala fide
It was stated that those instances gave rise to the wrath of the Chief Minister against the petitioner in that case
After noting the al leged incidents the Chief Justice rejected these events and indicated that from the affidavit evidence it could not have been said that the Chief Minister had committed acts of violence or intimidation and the entire affidavit evidence established beyond any measure of doubt that the allegations of the petitioner in that case imputing mala fides against the Chief Minister were baseless
In a judgment concurring Bhagwati J as the learned Chief Justice then was observed at page 389 of the report that in dealing with the allega tion of mala fide it was necessary to bear in mind two important considerations that the court was not concerned to investigate into the acts of maladministration by the political Government headed by the Chief Minister at that time
It was not within the province of the court to embark on a far flung enquiry into the facts of commission and
omission charged against the Chief Minister in the adminis tration of the affairs of Tamil Nadu
That was not the scope of the inquiry before the court and the court must decline to enter upon any such inquiry
It was one thing to say that the Chief Minister had 480 malus animus against the petitioner in that case
The court was only concerned with the later limited issue and not with the former popular issue
The court cannot permit the peti tioner to side track the issue and escape the burden of establishing hestility and malus animus on the part of the Chief Minister by diverting courts attention to incidents of suspicious exercise of executive power
It is perhaps on this basis that the Division Bench of the Bombay High Court in the instant case rejected the application for additional evidence and rejected the contention in support of the view of misrule or misconduct by the erstwhile Chief Minister of Maharashtra Nilangekar Patil the appellant in the first appeal
The same principles in respect of affidavit evidence were reiterated in different context by this Court in Tara Chand Khatri vs Municipal Corporation of Delhi  Ors 1977 2 SCR 198
This Court reiterated that the High Court was not too wrong in dismissing the writ petition in limine in that case because a prima facie case requiring investiga tion had not been made out by the appellant
This Court reiterated that the High Court would be justified in refus ing to carry on investigation into the allegations of mala fide if necessary particulars of the charge making out a prima facie case Were not given in the petition
Since the burden of establishing mala fide lay very heavily on the person who alleged and the allegations made in regard there to in the writ petition were not sufficient in that case to establish malus animus this Court found that the High Court was justified in dismissing the petition without issuing notice
Dr Singhvi submitted that precisely the same was the position in the instant case
Reliance was also placed on Sukhvinder Pal Bipan Kumar vs State of Punjab  Ors  where at page 40 of the report after dealing with the allegations in the writ petition this Court observed that the allegations in the writ petition were not sufficient to constitute an averment of mala fides so as the vitiate the orders of suspension issued in that case
In such a situation the court was justified in refusing to carry out investigation into the allegations of mala fides if necessary particulars of the charge making a prima facie case were not there in the petition
This Court reiterated that burden of mala fide prima facie lay very heavily on the person who alleged it
There the petitioner sought to invalidate certain orders of suspension and it was the onus on them to establish the charge of bad faith or misuse of its power by the govern ment
Halsbury s laws of England Fourth Edition Volume 17 page 16 paragraph 19 deals with the standard of proof neces sary in these types of cases
It has been stated that in civil cases the standard of proof is satisfied on a balance of probabilities
However even within this formula there are variations depending upon the subject matter of allega tions
481 About the adverse remarks being made against the erst while Chief Minister we were reminded of the observations of this Court in The State of Uttar Pradesh vs Mohammad Naim 363 where this Court reiterated that it is a principle of cordinal importance in the administration of justice that the power freedom of judges and Magistrates must be maintained and they must be allowed to perform their functions freely and without interference by any body even by this Court
But it is equally necessary that in express ing their opinions Judges and Magistrates must be guided by considerations of justice fair play and restriant
Judicial pronouncements must be judicial in nature and should  not normally depart from sobriety moderation and reserve
In that case this Court found that the remarks in the judgment in respect of the entire police force of the State were not justified in the facts of the case nor were they necessary for the disposal of the case and should have been expunged
We are clearly of the opinion that the principle enunciated by that decision can have no application in the facts of this case
In the instant case the first issue was whether there was tampering of the gradesheet a fact which has been found by the learned single judge and by the Division Bench and which is not in dispute in any of these appeals before us
The other dispute was the allegation and the finding of the learned single judge was that the same was at the behest of the appellant in the first appeal and the respondent in the second appeal Nilangekar Patil the erstwhile Chief Minister
This point was very much in issue
He was a party
He had been heard on this point
So therefore whether the remarks were correct or not is another issue but there was no question of the remarks being beyond the issue and no question of the party against whom the remarks had been made had not been given an opportunity
Our attention was drawn to the decision of this Court in Vineet Kumar vs Mangal Sain Wadhera AIR 1985 SC 817 in aid of the submission that additional evidence should have been allowed but in our opinion the context in which the said observation was made was entirely different and cannot have any relevance to the facts of this Case
The Privy Counsil in The Bank of India and Others vs Jamesetji AH Chinoy and Messers
Chinoy and Co AIR reiterated that speculation is not enough to bring home the charge of fraudulent conspiracy
In a different context dealing with the election matter in Sri Harasingh Charan Mohanty vs Sh
Surendra Mohanty  the question arose was whether the consent or agency was there
This Court observed that consent or agency of Shri Biju Patnaik could not be inferred from mere close friendship or other relationship or political affilia tion
However close was the relationship unless there was evidence to prove that the person publishing or 482 writing the editorial was authorised by the returned candi date or he had undertaken to be responsible for all the publications no consent could be inferred
In our opinion the observations must be read in the context of the facts of that case
Seth Gulabchand vs Seth Kudilal and Others  at 629 was a case under the Contract Act 1872 where under section 3 of the applied the same standard of proof in all civil cases
There this Court after referring to certain observations referred to the observations of the Division Bench of the Calcutta High Court in Jarat Kumari Dassi vs Bissesur
ILR CWN 265
The Court thereafter referred to the definition of section 3 of the words proved  disproved  and not proved 
Reference was made to the decision of the Patna High Court by Meredith J at page 630 in Raja Singh vs Chaichoo Singh AIR 1940 Patna 281 at 203 where it was ob served by Meredith J that it was well settled that where fraud had to be inferred from the circumstances and was not directly proved those circumstances must be such as to exclude any other reasonable possibility
In other words the criterion was similar to that which was applicable to circumstancial evidence in criminal cases
This Court ob served that this Court was unable to agree with those obser vations
In that case this Court observed in respect of the allegation that a party had accepted bribe in a civil case did not convert it into a criminal case and ordinarily rule of civil cases would apply
Reliance was placed on the observations of this Court in the case of Niranjan Patnaik vs Sashibhushan Kur and Another supra to which one of us section Natarajan J was a party where this Court dealt with certain adverse remarks made against the Minister
This Court reiterated that the High Court and this Court must be deemed to have power to see that the courts below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it
The observations in that case in our opinion are inapplicable in the instant case
There an adverse remark had been made which the court found to be unjustified which was not relevant to the issue in point and the party against whom such observations having been made was not a party to the said proceedings but only a witness
Our attention was also drawn to certain English eases which have been noted by the Division Bench in the order under appeal and it is not necessary for us to refer to these in detail
The Division Bench noted that this Court had in the case of State of Uttar Pradesh vs Mohammad Naim supra had exhaustively dealt with the limitation in making these remarks ie 1 whether a party whose conduct in question was before the court had an opportunity of explaining or defending himself 2 whether there was evidence on record hearing on that conduct 483 justifying the remarks 3 whether it was necessary for the decision of the case as an integral part thereof to refer to that conduct and 4 the observations must be judicial in nature
These tests the Division Bench observed were satis fied in respect of the remarks made by the learned single judge
The Division Bench was of the view that the circum stances relied before the learned single judge formed a reasonable and cogent basis for the adverse comment on the conduct of the appellant herein in the first appeal
Howev er the Division Bench made it clear that it was merely in the nature of an adverse comment based on the material on record and at the hearing of a proceeding which involved the taking of evidence merely on affidavit
A fuller enquiry might lead to a conclusion that the comment was not justi fied
In that view of the matter the Division Bench asked the learned counsel whether the appellant in the first appeal desired that there  should be a full fledged factual enquiry into the charge of the grades of respondent No 4 having been altered as aforesaid
Such enquiry however must be done by a body the Division Bench suggested nomi nated by the Chief Justice of Bombay High Court
Counsel for the appellant in the first appeal before us made no request for such an enquiry however must be done by a body the Division Bench suggested nominated by the Chief Justice of Bombay High Court
Counsel for the an enquiry before the High Court
In other words he was not willing to invite an enquiry to clear his image
Shri Tarkunde appearing on behalf of the respondent in the first appeal and appellant in the second one submitted before us that there was sufficient substantial evidence before the learned single judge to come to the conclusion that the tampering was done at the behest of the erstwhile Chief Minister of Maharashtra
He submitted it was a finding of fact based on substantial evidence and there was clear material on such evidence
He further submitted that in a matter of this nature where public interest was involved namely state of affairs in the University of Bombay in respect of a high degree in the medicine and in which the conduct of the Chief Minister was involved public interest demanded that the High Court should have investigated the matter even though there might be some infirmities in the affidavit supporting the petition
He submitted that in this case that after the initiation of the proceeding public interest was involved and the High Court was justified in entertaining the application
He therefore submitted that the second appeal arising out of Special Leave Petition No 10665 of 1986 should be allowed
He further submitted that in a case of this nature additional evidence should have been admitted
It was further submitted by Mr Karanjawala counsel that even if this Court was inclined to accept that there was no distinction between a comment and a conclusion of fact in view of the facts disclosed in this case this Court in exercise of its judicial discretion under article 136 of the 484 Constitution should not interfere in the facts and circum stances of this case
He urged that neither the cause of justice nor public interest demanded interference under Article 136 of the Constitution
It is true that exercise of the power under article 136 of the Constitution is discre tionary
There is no question in this case of giving any clean chit to the appellant in the first appeal before us
It leaves a great deal of suspicion that tampering was done to please Shri Patil or at his behest
It is true that there is no direct evidence
It is also true that there is no evi dence to link him up with tampering
Tampering is estab lished
The relationship is established
The reluctance to face a public enquiry is also apparent
Apparently Shri Patil though holding a public office does not believe that ceaser s wife must be above suspicion
The erstwhile Chief Minister in respect of his conduct did not wish or invite an enquiry to be conducted by a body nominated by the Chief Justice of the High Court
The facts disclose a sorry state of affairs
Attempt was made to pass the daughter of the erstwhile Chief Minister who had failed thrice before by tampering the record
The person who did it was an employee of the Corporation
It speaks of a sorry state of affairs and though there is no distinction between comment and a finding and there is no legal basis for such a comment we substitute the observations made by the aforesaid observa tions as herein
This Court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale
It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere
The pollution in our values and standards is an equally grave menace as the pollution of the environment
Where such situations cry out the Courts should not and cannot remain mute and dumb
In that view of the matter we dispose of the two ap peals and application for adducing additional evidence with the observations made aforesaid
In the facts and circum stances of this case there will be no order as to costs


Summary:
Dr Mahesh Madhay Gosavi appellant in CA 445386 and respondent in CA 445286 was a failed candidate at the MD examination in the speciality of Gynaecology and Obstetrics held in the year 1985
He filed a writ petition under Arti cle 226 of the Constitution of India in the High Court of Bombay challenging the results of the MD examination held in November  85
He alleged that favouritism was shown by one Dr Rawal who went to the extent of tampering with grade sheets of the examinees so as to clear unsuccessful candi dates and in particular Smt
Chandrakala Patil daughter of the Chief Minister of Maharashtra appellant in CA 445286 and respondent in cross appeal CA 445386
In support of the writ petition alleging how the malpractice took place he filed an affidavit hearsay evidence of one Dr Manikant Mishra who is supposed to have heard certain talks that took place between Dr Rawal and Smt
Chandrakala Patil at Dr Rawals  Chambers and that what the deponent heard came to be proved by the MD Gynae results in which one Dr Smita Thakkar and Smt
Chandrakala Patil who could not clear the said examination thrice were shown to have passed
It was alleged that the tampering of the grade sheets were done by Dr Rawal at the behest of the appellant in CA 445286
The said allegations were refuted by the appellant Shivaji Rao Patil Smt
Chandrakala Patil his daughter Dr Rawal and another Dr Shah on oath by filing their affidavits
The 459 respondent though he had verified his petition did not disclose the so called reliable source of information de rived by him
about the allegations made against the appel lant  others
The learned Single Judge held i that the evidence of Respondent Madhav Gosavi as well as of Dr Mishra were unsatisfactory and unreliable ii that it was impossible to place any reliance on the evidence of Dr Mishra as it was not known how he came to contact Dr Gosavi or why he did not choose to file affidavit till 2821986 when the appellant Patil had already filed his affidavit on 26186 iii that the allegation and the averments made in para graph 14 of the writ petition were wholly unsatisfactory and insufficient because the Respondent petitioner had not disclosed from whom he derived them iv that there was tampering with grade sheets of Respondents 4 to 15 by Dr Rawal and v that in the facts and circumstances of this it could reasonably be inferred that the alteration was done at the behest of the appellant in CA 445286 and her daughter Chandrakala
This was because Dr Rawal was an experienced examiner not young or immature and a person like him would not proceed to do a criminal act and tamper with the record of the examination on his own with a view merely to please the people in power
The risk involved in what Dr Rawal had done was so enormous that it was difficult to conceive that he did it on his own
Accordingly he allowed the writ peti tion passed some structures against Dr Rawal and the appellant in CA 445286 and gave certain directions about examination of 12 other candidates whose results were also affected by the conduct of Dr Rawal
An application made before the Judge for adducing cer tain additional evidence was rejected
After the judgment the Vice Chancellor and the Chief Minister resigned from their posts
Three appeals No 21486 by Dr Rawal No 21586 by Dr Chaodrakala Patil and No 21686 by the appellant Shivaji Rao Patil were heard and disposed of by the Division Bench consisting of the Acting Chief Justice Kania and Shah J of the Bombay High Court on 16th June 1986
So far as appeal No 216 of 1986 is concerned according to the Division Bench i there was no direct evidence that the alterations in the grades of Chandrakala Patil were made at the instance of the appellant ii the reasonings of the trial Judge in coming to the conclusion that respondents No 3 and 4 the original petition were responsible for getting Dr Rawal to alter the grades was based on certain contingencies and were too tenuous for the conclusion based on such reasoning to amount to a positive finding iii Merely because respond ent No 3 to the original petition held a position of great power and would have been happy to see that his daughter had passed the MD examination it was difficult to conclude as a finding of fact that he must have 460 influenced Dr Rawal to alter the grades of his daughter iv it was true that a seasoned examiner like Dr Rawal would not have taken the risk involved in altering the grades except under a great pressure or pursuation but it cannot be ruled out the possibility of various motives which might have induced Dr Rawal to take the risk of altering the grades v however in all probability Dr Rawal would not have acted unless he had made him assured that the appellant Shivaji Rao Patil was behind the person who pur suaded him to alter the grades vi that when allegation of this type is made against anyone holding a position of prestige and power it was necessary that the evidence should be closely examined before holding such allegation well founded
Therefore the Bench observed that the remarks made against the appellant
Nilangekar Patil cannot be supported as conclusions arrived at against him but these can be regarded as adverse comments and not finding of fact and such comments were not wholly unjustified in the facts of this case
However the Division Bench refused to enter tain an application to introduce additional evidence as part of the claim of public interest litigation
Hence the appeal No CA 445286 by Nilangekar Patii against the adverse comments were allowed to remain and there was a cross appeal 445386 by Dr Madhav Gosavi against refusal to accept additional evidence
Dismissing the appeals by special leave the Court HELD 11 The basic principle of admission of addition al evidence is that the person seeking the admission of additional evidence should be able to establish that with the best efforts such additional evidence could not have been adduced at the first instance
Secondly the party affected by the admission of additional evidence should have an opportunity to rebut such additional evidence
Thirdly that additional evidence was relevant for the determination of the issue
474 G Here the additional evidence sought to be introduced mainly consist of alleged instances when the appellant on previous occassions had in respect of some criminal proceed ings and other matters pending used his influence to drop those proceedings
Applying the principle as to admission of similar fact evidence it must be held that the allegations of the alleged conduct of the appellant in similar cases would not be a safe basis upon which to admit additional evidence in this case having regard to the issues involved and nature of the issues involved in these matters and at the stage when these were sought to be introduced
474 H 476 E Mood Music Publishing Co Ltd vs De Wolfe Ltd  766 quoted with approval
461 2
The mere fact that several infirmities were noticed in the affidavit of Dr Mishra upon which the original petitioner Dr Gosavi based his own petition could not lead to the argument that the entertainment of the petition itself was wrong
The allegations made in the petition disclose a lamentable state of affairs in one of the premier universities of India
The petitioner might have moved in his private interest but enquiry into the conduct of the examiners of the Bombay University in one of the highest medical degrees was a matter of public interest
Such state of affairs having been brought to the notice of the court it was the duty of the court to the public that the truth and the validity of the allegations made be inquired into
It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary and private litigation assumed the character of public interest litigation and such an inquiry cannot be avoided if it is necessary and essential for the administra tion of justice
477F 477G 478A 31 It is true that exercise of the power under Article 136 of the Constitution is discretionary
There is no ques tion in this case of giving any clean chit to the appellant in the first appeal
It leaves a great deal of suspicion that tampering was done to please Shri Patil or at his behest
It is true that there is no direct evidence
It is also true that there is no evidence to link him up with tampering
Tampering is established
The relationship is established
The reluctance to face a public enquiry is also apparent
Apparently Shri Patii though holding a public office does not believe that ceaser s wife must be above suspicion
The erstwhile Chief Minister in respect of his conduct did not wish or invite an enquiry to be conducted by a body nominated by the Chief Justice of the High Court
The facts disclose a sorry state of affairs
Attempt was made to pass the daughter of the erstwhile chief Minister who had failed thrice before by tampering the record
The person who did it was an employee of the Corporation
It speaks of a sorry state of affairs and though there is no distinction between comment and a finding and there is no legal basis for such a comment
484A D 32 The court cannot be oblivious that there has been a steady decline of public standards or public morals and public morale
It is necessary to cleanse public life in this country along with or even before cleaning the physical atmosphere
The pollution in the values and standards is an equally grave menace as the pollution of the environment
Where such situations cry out the Courts should not and cannot remain mute and dumb
484 E 33 Where allegations of mala fide were made the Court must be cautious
It is true that allegation of mala fides and of improper motives on the part of those in power are frequently made and their frequency has increased 462 in recent times
In this task which is cast on the courts it will be conducive to have disposal and consideration of them if those against whom allegations are made came forward to place before the court either the denials or their ver sion of the matter so that the courts might be in a position to judge whether the onus that lay upon those who make allegations of mala fides on the part of the authorities had been discharged in proving it
It is true that the basis of the allegations being the affidavit of Dr Mishra was con sidered to be thoroughly unreliable
In this case there was specific and categorical denial by the erstwhile Chief Minister that tampering was done at his behest
Therefore while the court should be conscious to deal with the allega tions of mala fide or cast aspirations on holders of high office and power the court cannot ignore the probabilities arising from proven circumstances
478 B F G CS Rawjee  Ors
vs Andhra Pradesh State Road Trans port Corporation  referred to
34 Where evidence was adduced by affidavits such affidavits might be properly verified either on knowledge or from sources
Here it is true that undoubtedly the affidavit and the petition were defective but the court has taken cognizance of the matter and certain inferences followed from the inherent nature of facts apparent from the facts brought before the court
479A D The Barium Chemicals Ltd  Anr
vs The Company Law Board  Ors 1966 Supp
SCR 311 Padmabati Dasi vs Rasik Lal Dhar ILR XXXVII Calcutta 259 The State of Bombay vs Purushottam Jog Naik   EP Royappa vs State of Tamil Nadu  Anr   Tara Chand Khatri vs Municipal Corporation of Delhi  Ors 1977 2 SCR 198 and Sukhvinder Pal Bipan Kumar vs State of Punjab  Ors   Seth Gulabchand vs Seth Kudilal  Ors  at 629 Jarat Kumari Dassi vs Bissesur ILR 39 Cal
24516 CWN 265 Raja Singh vs Chaichoo Singh AIR 1940 Patna 281 at 203 referred to
The State of Uttar Pradesh vs Mohammad Naim  Vineet Kumar vs Mangal Sain Wadhera AIR 1985SC817 The Bank of lndia  Ors vs Jamesetji AH Chiney and Messrs Chinoy and Co AIR 1950 PC 90 Sri Harasingh Charan Mohantv vs Sh
Surendra Mohanty   Niranjan Patnaik vs Shashibhushan Kar and Anr  distinguished