IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT : THE HONOURABLE MR. JUSTICE C.T.RAVIKUMAR WEDNESDAY, THE 17TH JUNE 2009 / 27TH JYAISHTA 1931 Crl.MC.No. 2168 of 2006() ------------------------- AGAINST THE JUDGMENT DATED 16/02/2006 IN SC NOS..207/2004 & 1659/2004 of ADDL. DISTRICT & SESSIONS COURT (FAST TRACK COURT I) THIRUVANANTHAPURAM .................... PETITIONER(S): --------------- S.G. RAVEENDRANATH, AGED 46 YEARS, S/O. M.N. GANGADHARAN NAIR, `GOVINDAM', T.C.36/1031 (2), KAIRALI NAGAR, INCHAKKAL, PERUNTHANNI, THIRUVANANTHAPURAM. BY ADVS. SRI.P.VIJAYA BHANU SMT.P.MAYA RESPONDENT(S): COMPLAINANT: --------------------------- STATE OF KERALA, REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA, ERNAKULAM. BY PUBLIC PROSECUTOR SRI. PUZHAKKARA MUHAMMED THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 9/06/2009, THE COURT ON 17.6.2009. PASSED THE FOLLOWING: C.T. RAVIKUMAR, J. -------------------------------------------- CRL. M.C. NO. 2168 OF 2006 -------------------------------------------- Dated this the 17th day of June, 2009 O R D E R The petitioner, an Assistant Surgeon attached to the Taluk Head Quarters Hospital, Chirayinkeezhu, has filed this Cr. M.C. seeking to expunge certain adverse remarks passed against him by the Additional District and Sessions Judge (Fast Track Court I), Thiruvananthapuram in the common judgment in Sessions Case Nos. 207 of 2004 a and 1659 of 2004 dated 16.2.2006. The accused persons in the said cases were charge sheeted for offences punishable under Sections 323, 325 and 302 read with Section 34 I.P.C. Since the said cases arose in the course of the very same transaction, the trial court clubbed and tried the cases together and disposed of the same by Annexure-A common judgment. 2. The petitioner herein was examined as PW.1 in the aforesaid cases. Besides him, PWs.2 to 4 were also declared hostile to the prosecution. The trial court found the accused guilty under Sections 323 and 325 read with Section 34 I.P.C., but found them not guilty under Crl.M.C. No. 2168/2006 2 Section 302 read with Section 34 I.P.C. and accordingly convicted them only for offences punishable under Sections 323 and 325 read with Section 34 I.P.C. However, in the said common judgment, certain adverse remarks were passed against the petitioner as hereunder: (i) “But on a mere reading of the evidence of PW.1 as a whole, it can be clearly seen that he has deposed utter falsehood before court probably with a view to help the accused persons.” (ii) “As stated by me earlier he is not an ordinary witness. Even then he has no prick of conscious to say falsehood before court probably with a view to help the accused persons.” (iii) “What prompted PW.1 to disown the statements made by him in Ext.P1 is a matter to be looked and enquired into by his higher authorities. He has no inclination to deviate from the statement given by him in Ext.P1 probably with a view to help the accused persons.” The counsel for the petitioner contended that the learned Sessions Judge was not justified in making the said adverse remarks and comments having far reaching adverse consequences upon the petitioner who is a Government doctor. He, therefore, seeks to expunge the said adverse remarks on various grounds. Firstly, it is contended that the principles of natural justice have been violated in as much as before passing the above extracted adverse remarks and comments against the petitioner, he was not put on notice and no opportunity whatsoever was afforded to him. Crl.M.C. No. 2168/2006 3 Secondly, it is contended that the aforesaid adverse remarks and comments made against the petitioner were absolutely unnecessary for the purpose of taking a decision in the above Sessions Case. 3. It is a settled position of law that before passing comments, criticism or observations against a party to the proceedings, the said party has to be given an opportunity of having his say in the matter. The Honourable Apex Court, time and again, deprecated the practice of making observations, comments and criticisms, unmindful of the serious repercussions that may entail such persons without adhering to the principles of natural justice. To substantiate the contentions, the learned counsel for the petitioner relied on the decisions of the Honourable Apex Court in S.K. Viswambaran v. E. Koyakunju, reported in A.I.R. 1987 S.C. 1436 and Testa Setalvad v. State of Gujarat reported in (2004)10 SCC 88. In the decision in S.K. Viswambaran v. E. Koyakunju reported in A.I.R. 1987 S.C. 1436, paragraph 10 of the decision in State of Uttar Pradesh v. Mohd. Naim, A.I.R. 1964 S.C. 703 was quoted with approval and reaffirmed the duty of courts to keep strict adherence to the principles of natural justice before making any comments, criticisms or observations against a party in a judgment. In the latter decision, the Apex Court heavily came down on the practice of making observations, Crl.M.C. No. 2168/2006 4 comments and criticisms in violation of the principles of natural justice against persons or authorities in decisions by courts. It is held therein: “The appellants were not parties in the case before the High Court. it is beyond comprehension as to how the leaned Judges in the High Court could afford to overlook such basic and vitally essential tenet of the “rule of law” that no one should be condemned unheard, and risk themselves to be criticised for injudicious approach and/or render their decisions vulnerable for challenge on account of violating judicial norms and ethics.” 4. This Court also had occasions to consider several such instances of passing of adverse remarks/comments by the courts below in their judgments, in violation of the principles of natural justice. Relying on precedents of this Court as also that of the Honourable Apex Court, in all such occasions this Court interfered with such unjustifiable actions and heavily deprecated such injudicious approach. (see the judgment of this Court in Nandakumaran v. State of Kerala, reported in 2001(2) K.L.T. 500.) In short, it is now a settled position that no one should be condemned unheard. In this case, indisputably the petitioner was not given any notice or heard in the matter by the trial court before passing the above extracted adverse remarks against him in the judgment. The petitioner is a doctor. To say that he is a person unscrupulously telling untruth would definitely have very serious repercussions in future in his Crl.M.C. No. 2168/2006 5 personal and professional life. It is evident from Annexure-A judgment that adverse remarks were passed therein to the effect that the petitioner who was examined as PW.1 had deposed utter falsehood before the court probably with a view to help the accused persons. In another portion of the judgment, it was observed that the petitioner herein is not an ordinary witness and that he had no prick of conscious to say falsehood before the court , probably with a view to help the accused persons. What is more injudicious is the remark made in paragraph 11 of Annexure-A judgment, viz., “What prompted PW.1 to disown the statements made by him in Ext.P1 is a matter to be looked and enquired into by his higher authorities and that he has no inclination to deviate from the statement given by him in Ext.P1 probably with a view to help the accused persons”. The above extracted adverse remarks will undoubtedly portrait the petitioner as a man who unscrupulously told untruth before the court and it would necessarily entail very serious repercussions in future. In the totality of the circumstances, I am inclined to accept the contentions of the counsel for the petitioner that the above extracted adverse remarks made by the learned Sessions Judge in Annexure-A judgment are liable to be expunged. 5. In fact, in view of my finding as regards the first submission of Crl.M.C. No. 2168/2006 6 the counsel for the petitioner, it is unnecessary to deal with the second submission. The said submission was that the above extracted remarks and comments passed against the petitioner by the learned Sessions Judge are absolutely unjustifiable and unnecessary for deciding the cases covered by Annexure-A judgment. In the decision in S.K. Viswambaran Case (supra), it was held by the Honourable Apex Court as hereunder: “We have also to point out a grievous procedural error committed by the High Court. Even assuming for argument's sake that for expunging the remarks against respondents 2 and 3 the conduct of the appellant required scrutiny and merited adverse comment, the principles of natural justice required the High Court to have issued notice to the appellant and heard him before passing adverse remarks against him if it was considered necessary. By its failure the High Court has failed to render elementary justice to the appellant.” Suffice it to say that even in a case where making of observations, comments and criticisms in a judgment against a person or authority are found absolutely essential and necessary for the purpose of deciding the case, before doing so, an opportunity of hearing must be afforded to the concerned party. Hence, consideration as to whether the conduct of the petitioner herein as a witness required scrutiny and merited adverse comments or remarks is unnecessary and any conclusion thereon cannot Crl.M.C. No. 2168/2006 7 cure the grievous procedural error committed by the court below. 6. In view of the above discussions, I am of the view that the above extracted adverse remarks passed by the learned District and Sessions Judge (Fast Track Court I), Thiruvananthapuram in Annexure-A common judgment dated 16.2.2006 in S.C. N of 207 of 2004 and 1659 of 2004 are liable to be expunged. In the result, the adverse remarks made by the said court against the petitioner herein in Annexure-A judgment shall stand expunged and deleted and consequently they must be treated as having never existed or been part of the said judgment. The Crl.M.C. is accordingly allowed. (C.T. RAVIKUMAR, JUDGE) sp/ Crl.M.C. No. 2168/2006 8 C.T. RAVIKUMAR, J. CRL. M.C. NO. 2168/2006 O R D E R 17th June, 2009 Crl.M.C. 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