DR. DILIP KUMAR DEKA AND ANR.

A v.

STATE OF ASSAM AND ANR .

. JI

.._

SEPTEMBER 10, 1996

[M.K. MUKHERJEE AND S.P. KURDUKAR, JJ.] B

Judicial Strictures :

Accused in murder case-Police custody ordered-By virtue of Report of two Doctors accused continued to stay at Hospital without Court's orc ders:-Pemiission Refused by CJM-Revision filed-Medical Board constituted-Board came to the conclusion that accused did not have any major illness-High Court Judge while dismissing the Revision Petition, made ce1~ tain remar'ks against the two Doctors for misuse of their official status and that they were liable to be brought to book-On appeal for expunging the D remarks, held: Nature of remarks cast a serious aspersion on the appellants affecting their character and reputation and career also-Condemnation -· without giving them an opportunity of being heard was complete negation of the fundamental principle of natural justice-Administrative Law-Natural Justice.

E State of Uttar Pradesh v. Mohd. Naim, [1964) 2 SCR 363; !age Ram, Inspector of Police & Anr. v. Hans Raj Midha, AIR (1972) SC 1140; R.K.

Lakshmanan v. A.K Srinivasan, AIR (1975) SC 1741; Niranjan Patnaik v.

Sashibhusan Kar & Anr., AIR (1986) SC 819 and Abani Kanti Ray v. State of Orissa & Ors., [1995) 6 Scale 41, relied on.

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 1699 of 1996.

From the Judgment and Order dated 18.9.95 of the Assam High Court in C.R. No. 447 of 1995.

G __.

P.K. Goswsami, Rajiv Mehta and Kailash Vasdev for the Appellants.

S.M. Chaudhary and Shakil Ahmed Syed for the Respondents.

The following Order of the Court was delivered : H 763

SUPREMECOURTREPORTS [1996]SUPP.5S.C.R.

A Leave granted. Heard the learned counsel for the parties.

2. This appeal is for expunging certain remarks made by a learned Judge of the Guwahati High Court against the two appellants herein, namely, Dr. Dilip Kumar Deka and Dr. P.K. Baruah, who are attached to B Mahendra Mohan Choudhary Hospital Guwahati ('MMCH' for short), while disposing of a criminal revision petition filed by an accused in a murder case. Facts and circumstances leading to the remarks are as under.

3. Over the murders of Mrs. Karabi Das and her niece Ms. Chandra Rani Dharitri Das a case under Section 302 IPC was registered by Latasil C Police Station on August 1, 1995. In connection with that case Smt. Geeta Kalita and her husband Shri Bhagya Kalita were arrested on August 2, 1995; and on their production before the Chief Judicial Magistrate, Guwahati on the following day, (August 3, 1995) they were remanded to the police custody for seven days on the prayer of the Investigating Officer.

D While in police custody Smt. Kalita complained of severe abdominal pain in the night of August 8, 1995 and, therefore the police took her to MMCH.

There she was first treated by Dr. K.S. Dowerah and, under his s.dvice, was admitted in the hospital as an indoor patient. On the following day the appellant No. 1 examined her and diagnosed that she was suffering from E peptic ulcer and appendicitis. The appellant No. 1 then advised the Deputy Superintendent of the hospital to transfer her to the Guwahati Medical College Hospital ('GMCH' for short) as the facility for ultra sonography was not available in their hospital. Accordingly, the Deputy Superintendent wrote a letter to the Officer incharge of Latasil Police Station on August

F 9, 1995 requesting him to make security arrangements for shifting her to GMCH. However, she was not removed to GMCH and, hence, continued to be treated by the doctors of the MMCH including the two appellants.

4. On August 16, 1995, when it was brought to the notice of the Additional Chief Judicial Magistrate, Guwahati, that without the order of G the Court Smt. Kalita had been hospitalised, he passed an order calling for an explanation from the Investigating Officer (IO) in that regard and directed him to furnish the names of the Medical Officers who had treated her. The Superintendent of MMCH was also directed to submit a detailed report about the condition of Smt. Kalita by August 21, 1995. To comply H with the said direction the Superintendent asked the appellants to submit

D. KR. DEKA v. STAIB 765

a detailed report of her medical examination and on the basis of the report A so submitted, he sent his report to the learned Magistrate. On Perusal of the report the learned Magistrate passed another order on August 21, 1995 asking the Superintendent, MMCH to submit weekly reports about the condition of Smt. Kalita. In terms of the said order the Superintendent forwarded the medical report, submitted by the appellants on August 24, B 1995 and on perusal thereof and other materials on record, the Chief Judicial Magistrate, Guwahati passed on order on August 27, 1995 which so far as it is relevant for our purposes, reads as under :

"The accused Smt. Geeta Kalita was given in police custody and as per order of the Court she was to be produced before the Court C on 16.8.95. But due to the admission of the accused in hospital for the alleged ailment during the period of police custody, the court on prayer of the 1/0 extended the period of police custody , with a direction to produce the accused before the Court when released from the hospital. In the circumstances discussed above the deten- D tion of the accused Geeta Kalita in the MMC Hospital at the moment is not at all necessary and the 1/0 has also shown no interest to get the acc:is-od discharged from the hospital and produce before the Cotat.

Under the circumstances I refuse to allow the accused Geeta Kalita E to be kept in the hospital any further and decline to extend th~ period of police custody. Hence the Superintendent, MMC Hospital is directed that he shall discharge the accused Geeta Kalita immediately on receipt of this order and hand her over to the 1/0.

The 1/0 shall attend the MMC Hospital to receive the accused F and produce her before the court by 1.30 p.m. on 29.8.1995 posi- . tively.

By flouting the orders to the Court both the 1/0 and Dr. AC.

Bora, Superintendent, GMC Hospital have demeaned the authority of the Court without any justifiable reasons. Therefore, G in order to preserve the supremacy of the rule of law, it may be necessary to take appropriate penal action against these two important and responsible functionaries. Therefore, Dr. AC. Bora, Superintendent, G.M.C. Hospital Guwahati and the 1/0 are hereby directed to show cause why they should not be proceeded with for H

non-compliance and clear avoidance to comply Court's order."

5. Aggrieved by the above order so far as it sought to direct her release from the hospital, Smt. Kalita moved a revision petition before a learned Judge of the High Court. The learned Judge entertained that petition and passed an interim order on August 29, 1995 constituting a medical Board comprising four eminent doctors for examining Smt. Kalita and directing the 1.0. not to produce Smt. Kalita before the Chief Judicial Magistrate in terms of his order, till the Board submitted its report.

Following the direction of the learned Judge, the Board examined Smt.

Kalita and submitted the following report on September 5, 1995 :

"Having collectively reviewed Smt. Kalita's physical condition and the results of all the investigations done on her, we have come to . the unanimous conclusion that she does not have any major illness at present apart from mild anaemia and minor bowel irregularity."

D In view of the above report the learned Judge dismissed the revision petition of Smt. Kalita and made the following remarks against the appellants which are impugned in this appeal :

(i) As discussed above from the report it can be arrived at the conclusion that the report given by the two doctors of the MMC Hospital, namely, Dr. D.K. Deka and Dr. P.K. Baruah (the two appellants before us) is manipulated, motivated with a view to mislead . the Court by stalling the process of the Court. Their conduct was unethical and unprofessional which violated the code of Conduct of the medical profession :

(ii) The course of events since August 8, 1995 to August 27, 1995 requires judicial scrutiny on the conduct and professional and official responsibility of the two doctors, namely, Dr. D.K. Deka and Dr. P.K. Baruah ................... which shocked the conscience of the entire public;

(iii) From the foregoing reason I am constrained to hold that on and from 16.8.95 accused Geeta Kalita was under the judicial custody, but for her alleged ailment, manipulated and highlighted by Dr. D.K. Deka and Dr. P.K. Baruah of MMC Hospital her H hospitalisation was continued till 27.8.1995;

D.KR.DEKAv.STATE 767

(iv) The IO is also a party to all manipulation with the two doctors; A

(v) Apparently from 16.8.95 the accused Geeta Kalita was not under police custody but at the connivance of the IO and the two doctors of the MMC Hospital she continued her stay in the hospital by flouting the Court's order; and

(vi) The systematic attempt of the two doctors, namely, Dr. D.K Deka and Dr. P.K Baruah of MMC Hospital .......... have misused their official status and responsibility to thwart the court proceeding and delay the judicial process for which these two doctors ............. are liable to be brought into book. Regarding conduct and C behaviour of the two doctors, their extraneous activities speaks a volume about their professional ethics ........... ".

6. The tests to the applied while dealing with the question of expunction of disparaging remarks against a person or authorities whose conduct comes in for consideration before a Court of law in cases to be decided by D it were succinctly laid down by this Court in State of Uttar Pradesh v. Mohd.

Naim, (1964] 2 SCR 363. Those tests are :

(i) Whether the party whose conduct is in question is before the court or has an opportunity of ei..-piaining or defending himself;

(ii) Whether there is evidence on record bearing on that conduct justifying the remarks; and

(iii) Whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on that conduct.

The above tests have been quoted with approval and applied by this Court in its subsequent judgments in !age Ram, Inspector of Police & Anr. v.

Hanse Raj Midha, AIR (1972) SC 1140, R.K. Lakshmanan v. A.K Srinivasan, AIR (1975) SC 1741 and Niranjan Patnaik v. Sashibhusan Kar & Anr., AIR (1986) SC 819.

7. We are surprised to find that in spite of the above catena of decisions of this Court, the learned Judge did not, before making the remarks, give any opportunity to the appellants, who were admittedly not parties to the revision petition, to defend themselves. It ca•mot be gainsaid

that the nature of remarks the learned Judge has made, has cast a serious H

A aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Condemnation of the appellants without giving them an opportunity of being heard was a complete negation of the fundamental principle of natural justice. , ..... ,.-,

8. Judged in the context of the first test laid down in Mohd. Naim's case (supra) the above discussion of ours is sufficient to quash the impugned remarks, but we find that the remarks are vulnerable also to the second test laid down therein. On perusal of the order dismissing the revision petition we find that the remarks of the learned Judge are based solely upon the fact that the report of the medical Board consisting of four c medical experts belied their report. Indeed, except the report of the Board we have also not found any other material on record from which the

learnd Judge could have legitimately and justifiably obtained satisfaction to pass the above remarks against the two appellants before us. We hasten to add that in making the above observation we have left out of our

D consideration the materials which prompted the learned Judge to make adverse comments against the IO.

9. Mr. Goswami, the learned counsel for the appellants, contended that it could not said that the report of the medical Board belied those of the appellants for they were based on clinical examination of Smt. Kalita E only and that too much earlier than her examination by the Board. Mr.

Goswami next submitted that the appellants had submitted a further report on 25.8.1995 stating that her condition had improved. In the context of the above facts, Mr. Goswami urged that simply because the Board on its later examination found that Smt. Kalita was not suffering from any major F ailment then, it could not be said that the reports earlier given by the appellants about the ailments of Smt. Kalita were incorrect. We do not however wish to delve into this aspect of the matter and would proceed to examine the justifiability of the remarks on the basis that the diagnosis of the appellants was patently wrong and that of the Board, which was

G admittedly a superior body, right. ,_

10. If the learned Judge's reasoning to make the impugned remarks is taken to its logical conclusion, it would mean that whenever a superior Court sets aside a finding of a lower Court, which is patently wrong, the former gets a charter to make vituperative remarks against the latter simply H because it had recorded such a finding. Before drawing any conclusion that

D. KR. DEKA v. STATE 769

an inferior body or Court has recorded a wrong finding with an ulterior A motive or for an oblique purpose the superior body or Court, as the case may be, must demonstrate that there are materials • other than the patently wrong finding - which impels it to so conclude. Else, the conclusion would be presumptuous and justice and fairplay would be casualities.

11. Now that we have found, applying the first two tests of Mohd.

Naim's case (supra) that the impugned remarks cannot be justified, the question whether it satisfies that third test also need not be gone into.

However, we will be failing in our duty if we do not advert to the phraseology the learned Judge has used while condemning the conduct of the appellants. In Mohd, Naim's case (supra) this Court while laying down the . C three tests (quoted earlier) further observed:

"It has also been recognised that judicial pronouncement must be judicial in nature and should not normally depart from sobriety, moderation and reserve."

While quoting with approval the above observations in Niranjan 's case

(supra) this Court further observed :

"We need only remind that the higher the forum and the greater

the powers, the greater the need for restraint and the more E mellowed the reproach should be."

12. Recently, in Abani Kanti Ray v. State of Orissa & Ors., (1995) 6 Scale 41, this court has made the following observations after referring to the earlier cases of this Court, including R.K Lakshmanan (supra) and Niranjan (supra) : F

"What we have said above is nothing new and is only a reiteration of the established norms of judicial property and restraint expected from everyone discharging judicial functions. Use of intemperate language of making disparaging remarks against any one unless that be the requirement for deciding the case, is inconsistent with G judicial behaviours. Written words in judicial orders for permanent record which make it even more necessary to practice self-restraint in exercise of judicial power while making written orders. It is helpful to recall this facet to remind ourselves and avoid pitfalls arising even from provocation at times." H

13. In keeping with the above observations, we feel, the learned Judge ought to have used temperate language and moderate expressions while criticising the appellants, for judicious restraint in such matters only lends

moe dignity to the high office the learned Judge holds and imparts greater respect for the judiciary. For the foregoing discussion we allow this appeal B and quash the earlier quoted disparaging remarks made against the appellants.

14. Before parting with this judgment we wish to point .out that while dismissing the revision petition filed by Smt. Kalita the learned Judge has recorded the following order :

"Accordingly I uphold the order of the learned Chief Judicial Magistrate which was passed against these Govt. officials with direction to show cause and I direct the Court to proceed accordingly under the provisions of law ."

(emphasis supplied)

15. This.direction of the High Court is not in conformity with the order of the Chief Judicial Magistrate (quoted earlier) for therein the direction is for holding an enquiry into the conduct of Dr. AC. Bora, Superintendent, MMCH and Investigating Officer and not the two appel- E fants before us.

G.N.

Appeal allowed.