Criminal Appeal No 461 of 1987
From the Judgment and Order dated 2051987 of the Delhi High Court in Criminal Revision No 105 of 1987
Ashok Desai Additional Solicitor General PK Chaube G Venkatesh Rao Ms A Subhashini and PK Choudhary for the Appellant
RK Garg JP Pathak and PH Parekh for the Respondent
The Judgment of the CoUrt was delivered by section RATNAVEL PANDIAN J
The State represented by CBI New Delhi has directed this appeal against the Order dated 2051987 of the High Court of Delhi passed in Criminal Revision No 105 of 1987 dismissing the petition of the petitioner in limine
The relevant facts which have given rise to this appeal can be stated thus The respondent SJ Choudhary is taking his trial before the Additional Sessions Judge New Delhi for the offences under Section 302 IPC and Sections 3 and 4 of the Explosive Substances Act in Sessions Case No 36 of 1983
According to the prosecution that on 2101982 at about 545 pm the deceased in this case namely Krishan Sikand received a parcel addressed to him
The deceased being unaware of the camouflaged contents opened the parcel which on opening exploded resulting in the instantaneous death of the deceased
Relating to this incident a case was registered at Hazrat Nizamuddin Police Station as FIR No 305 dated 2101982
The investigation was taken up by the police of the said police station
Thereafter the investi gation was transferred to Crime Branch Delhi on the very next day ie on 3101982 and finally in March 1983 to the Central Bureau of Investigation where it was registered as case RC 383 CBIDSPECIUIPNew Delhi
The respondentaccused was arrested by the CBI on 1883
Under the orders of Court the 126 custody of the respondent was handed over to the CBI for sometime
After completing the investigator the CBI laid the charge sheet on 28101983
Presently the case is pending trial before the Addi tional Sessions Judge Delhi
While the petitioner in the SLP filed in August 1987 would state that as many as 63 prosecution witnesses have been examined and PW 64 is in the witness box the respondent in his affidavit dated 212
1990 has stated that so far 67 witnesses have been examined
Be that as it may according to the prosecution the cover of the device parcel containing camouflaged live hand grenade was found pasted with a typewritten name and address of the deceased Krishan Sikand on a white slip and the explosion of the hand grenade resulted in the shattering of the materials into pieces inclusive of the said slip
The police collected from the scene of incident the typewritten pieces of the paper in which the grenade had been wrapped amongst the debris and remanents which were sent to the Central Forensic Science Laboratory for examination and expert opinion
In the laboratory the parcel sent by the Investigating Agency for examination was opened by PW 61 Dr GR Prasad Head of the Ballistic Division on 12101982
He while examining the contents of the parcel succeeded in partially reconstructing the typewritten name and address of the deceased from the shattered pieces of the slip
It is the version of the prosecution that on 5883 while the respondent was in the custody of the CBI pursuant to the order of the Court he made a voluntary confession which led to the discovery of the fact that the address on the aforesaid parcel was got typed by him from a commercial college namely Janta Commercial College at I 43 Lajpat Nagar II New Delhi
The Investigating Agency took the specimen of typing prints from the 13 English typewriters found in the said college
The re constructed typed address and the specimen type prints were examined by Sh
SK Gupta
Head of Document Division in the Central Forensic Science Laboratory
Mr SK Gupta gave his opinion that on balance of similarities and dissimilarities it is a asona ble to conclude that the typescripts found on the slip pasted on the wrapper of the parcel collected from the scene have been typed from one of the machines of the Janta Com mercial College as both the impressions are identical
Now the prosecution wants to examine Mr SK Gupta as an expert to prove the above fact
This request of the prosecution to examine Mr SK Gupta was stoutly resisted by the learned counsel of the accused on the ground that the evidence of such typewriting expert is 127 inadmissible under Section 45 of the Indian Evidence Act as it does not fall within its ambit
It seems from the im pugned order that several decisions were cited at the Bar by both the parties but the Trial Court on the strength of certain observations made by this Court in Hanumant  Anr
vs State of Madhya Pradesh 1952 SCR 1091 dismissed the prayer of the prosecution holding thus It shows that Hon ble Judges of the Supreme Court meant that such evidence cannot be brought on record and be evaluated by the Court
It is well settled that if their Lordships of the Supreme Court clearly intended to declare the law on a particular point then even though the observa tions may be obiter dictum  they are nevertheless binding upon the High Court and subordinate Courts
Under these circumstances I uphold the objections raised by the counsel of the accused and order that Sh
SK Gupta who is sought to be examined as an expert on type written documents cannot be examined to give evidence on this point
 On being dissatisfied with the above order of the High Court this criminal appeal is filed by the State
For proper understanding and appreciation of the ques tion involved in this case the relevant portion of the observation of this Court in Hanurnant s case on the strength of which the High Court has passed the impugned order may be reproduced hereunder Next it was argued that the letter was not typed on the office typewriter that was in use in those days viz article B and that it had been typed on the typewriter article A which did not reach Nagpur till the end of 1946
On this point evidence of certain experts was led
The High Court rightly held that opinions of such experts were not admissible under the Indian Evidence Act as they did not fail within the ambit of Section 45 of the Act
This view of the High Court was not contested before us
It is curious that the learned Judge in the High Court though he held that the evidence of the experts was inadmissible proceeded nevertheless to discuss it and placed some reliance on it Though a lengthy argument was advanced by the respective 128 counsel for both the parties by citing a series of decisions in support of their respective contentions we are not adverting to all those contentions except to the relevant one as we are of the view that the matter requires an in depth analysis and examination by a larger Bench in view of the observation in Hanumant s case
The learned Solicitor General has submitted that the words Science or Art  occurring in Section 45 of the Indian Evidence Act should be given wide and liberal construction so as to cover all ranches of specialised knowledge to the formation of opinion that by the march of science the evidence of expert regarding type script has assumed impor tance that such expert evidence on type script needs to be considered at par with the evidence of other experts brought within the ambit of Section 45 of the Evidence Act and therefore the expert opinion of Mr SK Gupta cannot be shut out as being inadmissible
According to him the brief observation of this Court in Hanumant s case supra cannot be construed as ratio decidendi binding on this Court or even obiter dictum but it is only a passing observation as there was no issue in that case as to whether the expert s testimony on type script was admissible or not under the Evidence Act and consequently there was no discussion of law on that subject and in fact there was no contest on the question of the admissibility of the evidence of an expert regarding typed documents
He would reiterate that the judgment in Hanumant s case has not declared the law in regard to the admissibility of the testimony of an expert in regard to typescript and that the learned Judges have pro nounced no independent opinion upon the same
In support of this submission firstly he drew our attention to the fol lowing passage appearing in Woodrofee and Ameerali s Law of Evidence which reads thus The Supreme Court has held in Hanumant v State of MP that the opinion of an expert that a particular letter was typed on a particular typewriting machine does not fall within the ambit of section 45 of the Evidence Act and it is not admissible
It is respectfully submitted it may require consideration in the light of the modern knowledge indicated to some extent by the research materials which show that detection of forgeries of typewritten documents has become an integral part of the science of questioned documents
 Secondly he brought to the notice of this Court the opinion expressed by the Law Commission in its 69th Report Vol IV in Chap 129 ter 17 captioned Opinion of Expert  wherein the Law Commis sion after referring to the decision in Hanumant s case stated thus 1726 One could regard these observations as not laying down a definite view on the subject
But the words rightly held could be construed as approving the negative view
1731
We therefore recommend that Section 45 should be amended so as to include identity of typewriting
According to the learned Solicitor General as viewed by Woodrofee and Arneerali in Law of Evidence  and by the Law Commission in its 69th Report the word science  occurring in Section 45 should be held comprehensive enough to include the opinion of an expert in regard to the transcript as well
But the acceptability or otherwise of an expert testi mony on typewritten documents would depend upon the satis faction of the Court about the specialised skill and experi ence of that expert on that subject
Finally he requested that this Court notwithstanding the passing observation in Hanurnant s case be pleased to examine in detail the ques tion of the admissibility or otherwise of an expert testimo ny on type script and lay down the law on this subject
Mr RK Garg senior counsel appearing on behalf of the respondent vehemently urged that the observation in Hanu mant s case cannot be discarded or brushed aside as a pass ing observation and if that argument is to be accepted by treating the view expressed by this Court as gratis dicta and to declare law on the subject ignoring the view in Hanumant s case it would be tantamount to saying that the view expressed by the learned three Judges in that case as having been wrongly held and therefore the argument of the learned Solicitor General has to be discountenanced
The proceeding of the trial which has already been considerably delayed on this issue which is only academic so far as this case is concerned and so the respondent should not be sub jected to immeasurable hardship
According to him the High Court has passed this impugned order only on the strength of the observation in Hanumant s case and rejected the plea of the prosecution to permit it to examine Sh
SK Gupta as an expert and therefore the impugned order can neither said to be incorrect nor it calls for any interference
He adds that this Court should not dissent lightly from the previous decision of this Court merely on the ground that the con trary view appears to be preferable and that the power of review must be exercised with due care and caution and that too only for advancing the public well being in the light of the surrounding cir 130 cumstances
In support of this submission he places reli ance in The Bengal Immunity Company Ltd vs The State of Bihar  Ors at 630
He continues to state that this Court should exercise its discretionary jurisdic tion under Article 136 of the Constitution of India only in cases where there is violation of the principles of natural justice causing substantial and grave injustice to parties or which raise important principles of law requiring eluci dation and final decision of this Court or which disclose such of the exceptional or special circumstances which merit the consideration of this Court on a particular issue
He cites the decision of this Court in Bengal Chemical  Phar maceutical Works Ltd Calcutta vs Their Workmen  at 140 in support of his later submission
Finally he states that the facts and circumstances of the case on hand do not warrant examination of the request made by the appellant
After bestowing our anxious consideration on the ques tion of law involved we without expressing any view at this stage on the observation made in Hanumant s case feel that the question with regard to the admissibility of the opinion of an expert on type script should be examined in detail and decided
Needless to say that by the march of time there is rapid development in the field of forensic science and therefore it has become imperative to match the said march of modern vistas of scientific knowledge the question whether the opinion of an expert in regard to type script would fall within the ambit of Section 45 of the Evidence Act has to be decided
In fact when the SLP in this matter came up for admission the Bench considering the importance of the question involved made the following order Special leave granted
Since the question involved is important and is involved in many cases it is desirable that it should be heard as early as possible and the matter be mentioned to Hon ble the Chief Justice for appropriate directions
 Taking the overall view of this matter we feel that this important question of law involved in this case is to be examined in detail and decided by a larger Bench as the judgment in Hanumant s case was rendered by three learned Judges of this Court
Since the matter is urgent it may be posted for hearing at an earliest point of time so that the trial of the case may not be further delayed


Summary:
While allowing a writ petition one of the Judges deliv ered the main Judgment invalidating the decision of the Government on the ground that it violated Article 14 of the Constitution
The other Judge delivered a separate but concurring opinion which contained highly disparaging re marks attributing mala fides and underhand dealing on the part of the State Government
Several appeals were filed against the said decision before this Court
This Court allowed the appeals and observed that the strictures passed in the concurring Judgment were totally unjustified and unwarranted
State of MP vs Nandial Jaiswal  Ors  Thereafter an Advocate who had no connection whatsoever with the litigation filed a review petition before the High Court
It was alleged that the State Government committed fraud and procured the judgment from this Court
The matter was listed before a Division Bench on 29th October 1988 and one of the Judges dismissed the review petition as not maintainable
Meanwhile another application for review was filed stating that the Vidhan Sabha proceedings would lend credence to the claim that the State Government had prac tised fraud on the Court
On 6th February 1989 the other Judgewho had passed strictures against the Government in the Writ Petition dismissed the review position for want of jurisdiction with an observation that had the appellant acted bona fide in briefing the then Chief Minister the fraud on the Court as also the misleading press statement by the then Chief Minister would have been avoided
It was further observed that the appellant did not act befitting the status of the high office of the Advocate General and that he did not have the courage to face the situation in the Court later
Before this Court
the appellant contended that he had no 111 opportunity to meet the allegations in the review petitions
He had also contended that earlier he entered appearance as Advocate General on behalf of the State and that when the review petitions were heard neither he was the Advocate General nor did he wish to enter appearance since he thought that the review petitions deserved to be dismissed as there were no valid grounds
Allowing the appeal this Court HELD 1
Judicial restraint and discipline are as neces sary to the orderly administration of justice as they are to the effectiveness of the army
The duty of restraint this humility of function should be a constant theme of our judges
This quality in decision making is as much necessary for judges to command respect as to protect the independence of the judiciary
Judicial restraint in this regard might better be called judicial respect that is respect by the judiciary
Respect to those who come before the Court as well to other co ordinate branches of the State the Execu tive and the Legislature
There must be mutual respect
When these qualities fail or when litigants and public believe that the judge has failed in these qualities it will be neither good for the judge nor for the judicial process
117C E 2
The Judges Bench is a seat of power
Not only do judges have power to make binding decisions their decisions legitimate the use of power by other officials
The Judges have the absolute and unchallengeable control of the Court domain
But they cannot misuse their authority by intemper ate comments undignified banter or scathing criticism of counsel parties or witnesses
The Court has the inherent power to act freely upon its own conviction on any matter coming before it for adjudication but it is a general prin ciple of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct
117F G RK Lakshmanan vs
AK Srinivasan  and Niranjan Patnaik vs Sashibhushan Kar  relied on
No doubt each Judge is independent to form an opinion of his own in deciding cases or in any phase of the deci sional function
But the facts of the present case against the background of the views expressed by this Court apropos to the earlier strictures against the Government should have warned the Judge no matter how clear he was in his mind 112 not to criticise the appellant
The avoidance of even the appearance of bitterness so important in a Judge required him not to cast aspersions on the professional conduct of the appellant especially when he held that the High Court had no jurisdiction to entertain the review petition
The observations made are not only without jurisdiction but are also wholly and utterly unjustified and unwarranted and hence expunged
116C 1 118B The Nature of the Judicial Process by Benjamin N Cardo zo p 168 169 Some Observations of Felix Frankfurter J on the Nature of Judicial Process of Supreme Court Litiga tion 98 Proceedings AM Phil Society 233 1954 and The Judiciary and Constitutional Politics Views from the Bench by Mark W Cannon and David MO s Brien p 27 referred to