Criminal Appeal No 109 of 1987
From the Judgment and Order dated 12686 of the Kerala High Court in Crl
MC No 5111982 and 2121985
PS Poti PN Puri and EMS Anam for the Appellant
Baby Krishnan for the Respondents
The Judgment of the Court was delivered by NATARAJAN J
This Appeal by Special Leave is by a Gazetted Police Officer to seek expunction of certain ad verse remarks passed against him by the High Court of Kerala in an order passed with reference to two Criminal Miscella neous Petitions filed by Respondents 2 and 3 herein without issuing any notice to him and without hearing him
The somewhat unusual circumstances in which the appel lant has been made the victim of strictures by the High Court may now be looked into
One Chandrasekaran Pillai residing within the limits of Karunagapally Police Station was charged under Section 302 IPC for having committed the murder of his wife Komalavalli by first beating her and kicking her and then hanging her in order to make it appear that it was a case of suicide
The accused s son aged about 12 years and a neighbour claimed to have witnessed the beating as well as the accused dragging the deceased to the western side of the house
A little later the son made bold to go into the house and found his mother having with a noose round her neck
He raised alarm and the neighbours including his maternal uncle came to the house and cut the rope and rendered first aid unsuccessfully because Komalav alli had already died
A report was given at Karunagapally Police Station and a case of suspicious death was registered and investigation was done by Shri TP Rajagopalan Inspector of Police Respondent No 2 who was examined as PW 16 in the Ses sions Trial against the accused
As the brother of deceased Komalavalli was not satisfied with the manner of investiga tion of the local police he filed a petition before the Deputy Inspector General Southern range
Under orders of the Deputy Inspector General the investigation was entrusted to the Crime Detach 505 ment in which the appellant was serving as a Deputy Supdt
of Police
The appellant took charge of the case and his investigation revealed that Komalavalli s death was due to homicide and not suicide
The appellant was incharge of the investigation of the case only from
2611
1980 to 51
1981 and thereafter the further investigation was done by another police officer of the Crime Detachment who was examined as PW 18 in the trial
The charge sheet was eventually filed by yet another officer viz PW 19 an Inspector of Police
The defence of the accused was that his wife Komalavalli had committed suicide and that he had not murdered her
In support of his defence the accused placed reliance upon the first Investigating Officer viz PW 16 carrying out a cellophone tape test on the palms of Komalavalli and sending the cellophone tapes to the Forensic Science Laboratory to find out whether any fibres of coir rope were found in the cellophone tape and if so whether the fibres had come out of the coir rope used for the hanging
The report of the Foren sic Science Laboratory was that the cellophone tape con tained fibres of coir which were similar to the coir rope used for the hanging
It was therefore contended that Komalavalli s death was due to suicide as otherwise fibres from the coir rope used for hanging would not have been found in the palms of her hands
To prove the despatch of the cellophone tapes to the Forensic Science Laboratory and the receipt of the report from the said Laboratory and its despatch to the Crime Detachment a Head Constable of Karuna gapally Police Station by name E Koyakunju Respondent No 1 was examined as Defence Witness No 2
The Sessions Judge entertained serious doubts about PW 16 carrying out the cellophone tape test to lift any fibres of coir sticking to the palms of Komalavalli and sending the tapes to the Forensic Science Laboratory and the bona fides of the exercise
We shall set out later the numerous suspi cious features noticed by the Sessions Judge regarding the conduct of PW 16 and DW 2 with reference to the carrying out of the cellophone tape test and the despatch of the tapes to the Forensic Science Laboratory and the entrustment of the report to the Crime Detachment
For the present we will continue with the narrative so as to make known the circumstances which have led to the filing of this Appeal
After evaluating the prosecution evidence the Sessions Judge held that the prosecution had failed to prove the case against the accused beyond reasonable doubt and therefore gave him the benefit 506 of doubt and acquitted him of the charge under Section 302 IPC
It is significant to note that the acquittal was not rendered in acceptance of the defence case that Komalavalli had committed suicide but because the Court felt that it would not be safe to act upon the evidence of PW 2 the son and PW 3 the neighbour and convict the accused for the offence of murder
In the course of his judgment the Sessions Judge made severe comments against PW 16 the Inspector of Police DW 2 Head Constable and another Policeman PC 2599 and observed as follows Therefore in my view this is a fit case where appropriate action has to be taken against PW 16 DW 2 and PC 2599 who wrote Ext
D 14 for the reasons stated earlier
Otherwise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment
When one wing of the police establishment tries to investigate properly and to book the culprit PW 16 DW 2 and PC 2599 were trying to neutralise all the work that has been done by the Crime Detachment and to help the accused to get an acquittal
This is a serious situation which the higher authorities in the police depart ment have to take serious notice of and curb the tendency even in the beginning
 Aggrieved by the strictures passed by the Sessions Judge the Inspector PW 16 and the Head Constable DW 2 filed Criminal Misc
Petitions before the High Court of Kerala for expunging the adverse remarks made against them
A learned single judge of the High Court without making any examination of the conduct of the petitioners before him and without considering whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant in the dock for having failed to place before the Court the scientific materials which PW 16 had obtained in the course of investigation to find out whether Komalavalli s death was due to suicide or homicide
The learned judge had taken it for granted that PW 16 and DW 2 had acted in a blemishless manner and that the report of the Forensic Science Laboratory had been obtained through bona fide investigative process and it was the appellant who had schemingly kept back the crucial records from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncertain terms
The relevant portions in the judgment where the appellant 507 who was examined as PW 17 in the Sessions Trial has been criticised are as under para 6 PW 17 Dy
SP who conducted the investigation kept the above facts concealed purposely
If the report sent by the Assistant Director of forensic Science Laboratory was made available to the court it would have gone a long way to establish innocence of the accused
So to foist a false case of murder on the account he did not send the report of the Assistant Director of Forensic Science Labora tory to the Court
He pleaded complete igno rance of the above examination when examined before court
para 8 The part played by PW 17 is not beyond suspicion
He had purposely concealed materials which were favourable to the ac cused
It would appear that this officer was averse to scientific methods being made use of in investigation of crimes
His attempt was only to see that the accused is convicted in this case
This should not have been the approach of a senior officer like PW 17 who was investigating a very serious crime
The life and liberty of innocent persons should not be placed at the mercy of such unscrupu lous officers
It will be proper for the higher officers in the department to look into this matter and take proper corrective meas ures for future guidance
 Stung by the remarks made against him without even heating the appellant has preferred this Appeal to seek expunction of the remarks
Now let us have a look at the distressing and suspicious features noticed by the Sessions Judge in the conduct of PW 16 and D W 2 in the cellophone tape test carried out by them and in obtaining the report of the Forensic Science Laboratory and the despatch of the opinion to the Crime Detachment
The relevant portions extracted from the Judgment are as follows i The inquest Report prepared by this witness PW 16 does not show that he had seized any cellophone tape or coir or that they were sent to the Forensic Science Labora tory ii There are no documents to show that the tape and coir 508 were taken into custody for the purpose of sending them to the Forensic Science Laborato ry in the case diary iii Normally any material to be examined by the Forensic Science Laboratory will be sent only through the court
Admittedly the cellophone tape and the coir were not sent through court
On the other hand it is stated that they were sent to the laboratory through a constable
But the case diary does not show that any constable was sent to the Forensic Science Laboratory for handing over these articles iv PW 16 did not prepare any mahazar for seizure of any cellophone tape and inquest report also does not state anything about any tape said to have been affixed by him on the palm or the dead body and taken for the pur pose of examination at the laboratory v DW 1 Assistant Director of the Forensic Science Laboratory Trivandrum examined by the defence to prove his report Exhibit D 10 regarding the presence of small bits of coconut fibres beating similarity to the coir rope that was also sent had stated in cross examination that even if the tape was affixed to the coir instead of the palms and then sent it will contain the fibres similar to the one found on the coir vi The investigation was taken over by the Crime Detachment on 26
The cellophone tapes and the coir pieces are said to have been sent by PW 16 to the laboratory on 11280 when he had ceased to be the Inves tigating Officer vii Even if he had taken any cellophone tape and coir pieces at the time of inquest or thereafter and wanted them to be examined by the laboratory the proper course for him would have been to send them to the Dy
SP who was investigating the case on 112
1980 viii D W 2 Head Constable summoned and examined by the defence to prove the sending of the cellophone tapes and coir to the labo ratory and the report received from the labo ratory had stated that there is no document in the 509 Policy Station to prove that cellophone tape or coir piece were sent from Karunagappally Police Station to the Forensic Science Labora tory Trivandrum ix He further stated that the report re ceived from the laboratory was sent to the Crime Detachment on 71
1981 but claimed that there is nothing to show that it was received by any officer of the Crime Detachment Office
The despatch register Ext
D13 only shows that a cover was handed over to a constable for delivery to the Crime Detachment Office
But there is no acknowledgement to show that the constable had actually handed over the same to the office of the Crime Detachment at Quilon
 x DW 2 produced a notebook Ext
D 14 said to have been maintained by the constable to whom this cover was handed over for deliv ery at the office of the Crime Detachment
In this the curious aspect is that the entry regarding this handing over is written in a sheet of paper which is affixed in the note book as an extra sheet 
This entry Ext
D 14 has been purposely manufactured for the purpose of this case and I have no doubt that it has been done at the instance of DW 2 the Head Constable and PC 2599 who wrote Ext
D 14
Therefore the constable who wrote Ext
D 14 and DW 2 are equally responsible for this fraud xi The extent to which DW2 would go to help the accused is evident from the fact that he voluntarily producted Ext
 xii Ext
D17 is a letter sent from the Forensic Science Laboratory to the SI on 15111980
 This letter states that the sealed packet said to contain the MOs involved in Crime 220 of 1980 of Karunagapally Police Station were being returned unopened for want of forwarding note and certificate and hence the sealed packet may be resubmitted with proper forwarding note and certificate
At the bottom of this letter in vernacular it is written cellophone tape
 Except this vernac ular writing there is nothing to show that the MOs referred to in Ext
D 17 were cellophone tape and coir piece 
As the packet sent from the Karunagapally Police Station was not opened by the Forensic Science 510 Laboratory the writing in vernacular at the bottom of Ext
D 17 could not have been written by anybody from the laboratory
It is a subsequent interpollation probably at the instance of DW 2
This was also interferring with official documents and tampering with it by DW 2 or somebody from the Police Station at Karunagapally
It was with reference to all these features the Sessions Judge made his adverse remarks against PW 16 DW 2 and PC 2599 and observed that the conduct of the concerned official was highly open to suspicion that as such a full fledged enquiry should be held against them and that other wise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment
 Coming now to the merits of this Appeal when PW 16 and DW 2 moved the High Court for expunging the adverse re marks against them the scope of the enquiry was confined to the bonafides of their action in the investigation proceed ing and whether the Sessions Judge was justified in drawing adverse inferences against them on the basis of suspicious features catalogued by him
The High Court was not dealing with an appeal against the acquittal of the accused and there was no need or occasion for the High Court to go into the conduct of the appellant
The enquiry in the Criminal Misc
Petitions was only touching upon the conduct of PW 16 and DW 2 and not the conduct of the appellant
Further more one material fact which the High Court had completely over looked is that the appellant ceased to be in charge of the case on 511981
Thereafter the investigation of the case was taken charge of by PW 18 and still later by PW 19
Even according to DW 2 the report from the Forensic Science Laboratory was sent to the Crime Detachment only on 711981 whereas the appellant ceased to be incharge of the case on 51
1981 itself
It therefore passes one s com prehension as to how the appellant can be accused of having wilfully suppressed material documents from the notice of the court in order to secure a conviction unjustly against the accused in a murder case
The High Court it is surpris ing to find has not applied its mind to the series of suspi cious features noticed by the Sessions Judge to draw an adverse inference against PW 16 and DW 2 in conducting the so called cellophone tape test and sending the tape to the Forensic Science Laboratory for its report
The learned judge has taken it for granted that PW 16 had actually carried out a cellophone tape test that in carrying out such a test he was wedded to scientific methods of investi gation and that he and DW 511 2 had acted fairly and squarely in trying to find out the real cause of death of Komalavalli and that it was the appellant who had an aversion to the use of scientific methods in investigation of crimes and that the appellant had purposely concealed materials which were favourable to the accused in order to secure a conviction at any cost
The learned judge had failed to see that as a matter of fact the accused was not kept in the dark regarding the cellophone tape test that was deemed to have been done but on the other hand he had full information of the test and its result and it was on account of that he was able to summon police officials to figure as defence witnesses and police records as defence exhibits
We are therefore clearly of opinion that the High Court had completely misdirected itself in its consideration of the petitions filed by respondents 2 and 3 to seek expunction of the adverse remarks made against them by the Sessions Judge
We have also to point out a grievous procedural error committed by the High Court
Even assuming for argument s sake that for expunging the remarks against respondents 2 and 3 the conduct of the appellant required scrutiny and merited adverse comment the principles of natural justice required the High Court to have issued notice to the appel lant and heard him before passing adverse remarks against him if it was considered necessary
By its failure the High Court has failed to render elementary justice to the appel lant
Yet another serious infirmity contained in the impugned order is that the High Court has failed to bear in mind the well settled principles of law laid down by this Court in more than one case that should govern the Courts before disparaging remarks are made against persons or authorities whose conduct comes into consideration before Courts of law in cases arising before them for decision
In State of UP vs Mohd Naim  374equal to AIR 1964 SC 702 it was held as follows If there is one principle of cardinal impor tance in the administration of justice it is this the proper freedom and independence of Judges and Magistrates must be maintained and they must be allowed to perform their func tions freely and fearlessly and without undue interference by anybody even by this Court
At the same time it is equally necessary that in expressing their opinions Judges and Magis trates must be guided by considerations of justice fair play and restraint
It is not infrequent that sweeping generalisations defeat the very purpose for which they are 512 made
It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them it is relevant to consider a whether the party whose con duct is in question is before the court or has an opportunity of explaining or defending himself b whether there is evidence on record bearing on that conduct justifying the remarks and c whether it is necessary for the decision of the case as an integral part thereof to animadvert on that conduct
It has also been recognised that judicial pronounce ments must be judicial in nature and should not normally depart from sobriety moderation and reserve
This ratio has been followed in RK Lakshmannan vs AK Srinivasan  and Niranjan Patnaik vs Sashibhushan Kar  Anr  to which one of us was a party
Judged in the light of the above tests it may be seen that none of the tests is satis fied in this case
It is indeed regrettable that the High Court should have lightly passed adverse remarks of a very serious nature affecting the character and professional competence and integrity of the appellant in purported desire to render justice to respondents 2 and 3 in the petition filed by them for expunction of adverse remarks made against them
The appeal is therefore allowed and the adverse re marks against the appellant in the order of the High Court which have been extracted above will stand expunged from the order under appeal
APJ Appeal allowed


Summary:
The Sessions Judge while acquitting the accused of the charge under s302 IPC entertained serious doubts about PW 16 Respondent No 2 the Inspector of Police who partly investigated the case carrying out the cellophone tape test to lift any fibres of coir sticking to the palms of the deceased and sending the tapes to the Forensic Science Laboratory and the bona fides of the exercise
On the basis of the suspicions features mentioned in his judgment the Sessions Judge made severe adverse remarks against PW 16 Respondent No 2 DW 2 Respondent No 3 and another policeman and observed that the conduct of these officials was highly open to suspicion that a full fledged enquiry should he held against them and that otherwise indiscipline and the tendency to tamper with official documents and create false documents will set at naught the very purpose of having a police establishment
 The Inspector PW 16 Respondent No 2 and the Head Constable PW 2 Respondent No 3 filed petitions before the High Court for expunging the adverse remarks made against them
A Single Judge without making any examination of the conduct of the petitioners before him and without consider ing whether the features noticed by the Sessions Judge warranted the adverse remarks or not went at a tangent and put the appellant a Deputy Suptd
of Police PW 17 who had also investigated the case from 261180 to 51181 in the dock for having failed to place before the Court the scientific materials which PW 16 502 Respondent No 2 had obtained in the course of investiga tion to find out whether the death of the deceased was due to suicide or homicide
The learned judge observed that PW 16 Respondent No 2 and DW 2 Respondent No 3 had acted in a blemishless manner and the report of the Forensic Science Laboratory had been obtained through bonafide inves tigative process and it was the appellant who had schemingly kept back the crucial recordS from the notice of the Court in order to secure a conviction unjustly against the accused and as such the appellant should be raprimanded in no uncer tain terms
Stung by the remarks made against him without even a hearing the appellant preferred the instant appeal to seek expunction of the remarks
Allowing the Appeal HELD 1
The adverse remarks against the appellant in the order of the High Court under appeal will stand ex punged
512E 2
When PW 16 and DW 2 moved the High Court for expung ing the adverse remarks against them the scope of the en quiry was confined to the bona fides of their action in the investigation proceedings and whether the Sessions Judge was justified in drawing adverse inference against them on the basis of the suspicious features catalogued by him
The High Court was not dealing with an appeal against the acquittal of the accused and there was no need or occasion for the High Court to go into the conduct of the appellant
The enquiry was only touching upon the conduct of PW 16 and DW 2
Furthermore the High Court had completely overlooked the fact that the appellant ceased to be in charge of the case on 5181
Thereafter the investigation of the case was taken charge of by PW 18 and still later by PW 19 and ac cording to DW 2 the report from the Forensic Science Labora tory was sent to the Crime Detachment only on 7181 whereas the appellant ceased to be in charge of the case on 5181 itself
It therefore passes one s comprehension as to how the appellant can be accused of having wilfully suppressed materiai documents from the notice of the Court in order to secure a conviction unjustify against the accused in a murder case
510D G 3
The High Court has not applied its mind to the series of suspicious features noticed by the Sessions Judge to draw an adverse inference against PW 16 and DW 2 in conducting theso called cellophone tape test and sending the tape to the Forensic Science Laboratory for its report
The Judge had taken it for granted that PW 16 had actually 503 carried out a cellophone tape test that in carrying out such a test he was wedded to scientific methods of investi gation that he and DW 2 had acted fairly and squarely in trying to find out the real cause of the death of the de ceased and that it was the appellant who had an aversion to the use of scientific methods in investigation of crimes and that the appellant had purposely concealed materials which were favourable to the accused in order to secure a convic tion at any cost
The Judge had failed to see that as a matter of fact the accused was not kept in the dark regard ing the cellophone tape test that was deemed to have been done but on the other hand he had full information of the test and its result and it was on account of that he was able to summon police officials to figure as defence wit nesses and police records as defence exhibits
The High Court had thus completely misdirected itself in its consid eration of the petitions filed by respondents 2 and 3 to seek expunction of the adverse remarks made against them by the Sessions Judge
510G H 511A C 4
Even assuming that for expunging the remarks against respondents No 2 and 3 the conduct of the appellant re quired scrutiny and merited adverse comment the principles of natural justice required the High Court to have issued notice to the appellant and heard him before passing adverse remarks against him if it was considered necessary
By its failure the High Court has failed to render elementary justice to the appellant
511D E 5
It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before Courts of law in cases to be decided by them it is relevant to consider a whether the party whose conduct is in question is before the Court or has an opportunity of explaining or defending himself b whether there is evidence on record bearing on that conduct justifying the remarks and c whether it is necessary for the decision of the case as an integral part thereof to animadvert on that conduct
It has also been recognised that judicial pronouncements must be judicial in nature and should not normally depart from sobriety moder ation and reserve
512A C State of UPv
Mohd Naim   374 equal to AIR 1964 SC 702 RK Lakshmanan vs AK Srinivasan   and Niranjan Patnaik vs Sashibhushan Kar  Anr
   reliedupon
Judged in the light of the above tests it is clear that none of the tests is satisfied in this case
512D 504