DR. DILIP KUMAR DEKA AND ANR.versusSTATE OF ASSAM AND ANR .

                         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 or-        c
        ders:-Pemiission Refused by CJM-Revision filed-Medical Board con-
        stituted-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
        remarks, held: Nature of remarks cast a serious aspersion on the appellants
                                                                                        D


-·      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.
                                                                                        F
              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
    764                   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
    9, 1995 requesting him to make security arrangements for shifting her to
F
    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 Hospi-
         tal 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 im-
        portant 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
    766                  SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A           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
B   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 :
c            "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 appel-
    lants 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
E
            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 :
F
            (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;
G
            (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
                                                                                  B
        (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 proceed-
        ing 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 expunc-
tion 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;
                                                                                  E
        (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.
                                                                                  F
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.
                                                                                  G
      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
    768
                                                                  '
                         SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

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
B case (supra) the above discussion of ours is sufficient to quash the im-
  pugned 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
  learn~d 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
  consideration the materials which prompted the learned Judge to make
D 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
    admittedly a superior body, right.
                                                                                    ,_
G
        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. B
    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 phraseol-


-   ogy 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."
                                                                                  D
    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
    770                   SUPREME COURT REPORTS (1996] SUPP. 5 S.C.R.

A          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
    mo~e 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 appel-
    lants.

          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


c
    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 accord-
             ingly under the provisions of law ."

                                                            (emphasis supplied)
D
           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.