Holding

Harsh, disparaging remarks against a witness are not justified unless essential to the decision; therefore the High Court's comments must be expunged.

Summary

N. Patnaik, a mine licensee, was a prosecution witness in a case where the senior mining officer was convicted for accepting a bribe under the Prevention of Corruption Act, 1947. The Orissa High Court set aside the conviction but harshly described Patnaik and the manager as bribe‑givers and accomplices, even suggesting liability under IPC s.165A. Patnaik appealed to the Supreme Court seeking expunction of those remarks, arguing that he was not a material witness, that the court failed to apply the statutory presumptions of Section 8 of the Prevention of Corruption Act and Section 4(1) of the Act, and that the comments were unnecessary for the decision. The Supreme Court held that disparaging remarks against a witness are permissible only when essential to the case, which was not so here, and ordered the remarks removed. The appeal was allowed, granting expunction of the derogatory observations.

Issues considered

Whether the High Court's disparaging remarks against a prosecution witness were justified and necessary for the decision.
Whether the appellant was a material witness whose evidence required critical examination.
Whether the legal presumptions under Section 8 of the Prevention of Corruption Act and Section 4(1) of the Act should have been applied.
Whether expunction of the remarks is warranted under principles of judicial restraint.

Legislation cited

Code of Criminal Procedure, 1973s. 482
Indian Penal Code, 1860s. 161, s. 165A
Prevention of Corruption Act, 1947s. 4(1), s. 5(1)(d), s. 5(2), s. 8

Subjects

expunctionderogatory remarksjudicial restraintPrevention of Corruption Actwitness immunitylegal presumptionshigh courtappealcriminal procedureSection 8 immunitySection 165Abribeaccomplice

Judgment

470

A
V•

APRIL 11, 1986

[V. BAI.AKRISHNA EHADI AND S. NATARAJAN, JJ.]
B
Constitution of India, Art. 136/Criminal Procedure Code,~
1973, s. 482 - High Court making disparaging remarks against
prosecution witness - Expunction of by the Supreme Court.

Prevention of Corruption Act, 1947 : s. 8 - Prosecution
C witness - Immunity of from prosecution under s. 165-A of the
Indian Penal Code, 1860. ~

Prevention of Corruption Act, 1947, s. 4(1)/Indian Penal~
Code, 1860, s. 161 - Accused not denying receipt of
money/seizure of currency notes from his possession - Burden
D of proof - Whether shifts to the accused.
---
Criminal trial - Evidence pertaining to a previous
offence not subject-matter of the charge - Whether needs to be
critically examined.

E The appellant was a licensee of an iron ore mine where
P.W.2 was employed as his manager. The first respondent was
the Senior Mining Officer for the area. On a complaint by the
manager that the first respondent had been extracting illegal
gratification at the rate of rupees one thousand per month ,..-
during January, February and March 1979 from P.W.2 for
F allowing mining operations to be carried on peacefully and.J
suddenly raised the demand to rupees two thousand per month, a
trap was laid by the vigilance police and marked currency
nctes of the value of rupees two thousand tendered to the
first respondent were recovered from his brief case. The
receipt of the illegal gratification was denied by him but no
G explanation was ·offered for the possession of the currency
notes.

Before the trial court the defence of the accused
first respondent, was that the mney was given by way of
doo.ation for the welfare projects launched by the Mining
H Officers • Club. 'l'be appellant was cited as a prosecution
~. PATMIK. v. SASHIBHUSAN KAR
471

. '1 witness {P.W.8) to corroborate the testimony that his manager A
:! had informed him of having parted with a sum of rupees three
. thousand to the first respondent during the first three months
of 1979, and subsequently about the trap that had been laid.
1 The trial court rejecting the belated explanation of the first I
. II
'l respondent found him guilty under s. 5(2) read with s.5(l)(d) 1
f B
of the Act and s. 161 of the Indian Penal Code, and convicted j.
}. ~ and sentenced him.
I

The High Court while setting aside the conviction and
sentence of the first respondent, observed that the appellant
P. ~ and his manager being accomplices to the commission of the
crime. having willingly played the role of bribe givers for
f
I

three months, the evidence of these self-condemned persons,
c
~! .,. who, on their own showing had thrown moral scruples and sense
· of honesty, if they had any • to the winds, would be unworthy
of credit without corroboration in material particulars.

In his appeal to this Court by special leave the
D
appellant (P.W. 8) sought expunction of the aforesaid highly
derogatory remarks made against him by the High Court,
.# contending that the failure of the Court to apply the legal
presumptions against the first respondent led it to the making
of uncalled for caustic comments against him, and that the
receipt of bribe during the earlier months not being the E
subject matter of the charge there was no need for the Court
t to have critically examined the evidence of the appellant on
l that aspect of the matter.

I:~/'. Allowing the appeal, the Court,
F
UFJJ): 1. Harsh and disparaging remarks are not to be
made against persons and authorities whose conduct comes into
consideration before courts of law unless it is really
necessary for the decision of the case, as an integral part
thereof to animadvert on that conduct. (483 B)
G
._ ' State of U.P. v. Hnba-ed NBD. (1964] 2 S.C.R. 363;
' LL J.aksbmanao v. A.L Srinivasan & Anr •• [1976] l S.C.R.. 204
and Pam:Juman BaDerji v. Upeodra Math Bbattacbarji• A. I. R.
1927 All.·l93, referred to.

In the instant case, the derogatory remarks made against H

·- ·- - ----·--
SUP~ffi COURT REPORTS (1986} 2 S.C.[{.
47'2
.' .

A ~·
the appellant · were neither justified nor called for. These ~
shall stand expunged from the judgment under appeal. Having \ \
regard to the hearsay nature of evidence of the appellant it .· [
was not at all . necessary for the appellate court to have . ·
ca stigated him. Even assuming that a serious evaluation of the f
evidence of the appellant was really called for, the remarks \
B of the court should have been in conformity with the settled i ·
practice to observ~ sobriety, moderation and reserve. The .,:~
higher the forum and the greater the powers, the greater the ·
need for restraint and the more mellowed the reproach should
be. [483 B-E] .-
J.../Q
c 2. There was no need whatever for a minute examinatio; ·r
of the appellant's testimony or a critical inquisition of his I
character and conduct. The judgment of acquittal could have as ,.....J.
well been rendered with · reference to the failings in tne · ...
evidence of P.W.2 and the acceptable features in the ·'
r
t
explanation of the first respondent. (480 D]
D
What ·fell for consideration by the court was not the
i receipt of money during the previous months but whether the
'I
: ; sum of two thousand rupees, . which was admittedly recovered ~
from the first respondent , had been received by him by way of .· ~
..1 bribe or by way of donation. For this limited question the
t r: appellant was not a material witness. [479 G; 478 D; 480 A}

3. Section 8 of the Prevention of Corruption Act confers ·r
'· iom.mity from prosecution under s. 165A of the Indian Penal •
Code on persons who figure as witnesses in any proceeding
against a public servant for an offence under s. 161 or 8 • 16 ~ \.."""
F of the Code or under s. 5(2) or s. 5(3A) of the Act· Where the ..
...
I, evidence relating to receipt of bribe has a material bearing
'• on the case the obligation to deny those allegations rests
with the accused. Though the rule of presumption contained in
)

G
;· 4 0) does not apply to a charge under s. 5{2) read with s; \
( 1 )(d) of the Act, it is certainly attracted to a chatg
~~e~ s.t 161 of the Code. Failure of the appellate court t:~
1
ns ant case, to appreciate this legal position at ·-
outset to a large extent distorted the perspective to be t~~
.. in the case. [477 B, 478 D-E, 477 F, 477 G, 477 A]
;

CRIMINAL APPELlATE JURISDICTION : Criadnal Appeal No• . ·.
: I H 421 of 1985
'
N. PATNAIK v. SASHIBHUSAN KAR [NAT.AkAJAN, J.] 473

A
~ From the Judg~nt and Order dated 26th April, 1985 of
the Orissa High Court in Crl. A.No. 31 of 1982.

F.S. Nariman, Mrs. Uma Mehta Jain, S.K. Bagga and Miss
Mona Mehta for the Appellant.
B
K. Parasaran, Attorney General, T.S. Krishnamoorthy
,.._ Iyer, A.K. Ganguly, C.V. Subba Rao, Probir Palit, P. Gaur,
Umesh B. Bhagat, Jitendra Sharma and R.K. Mehta for the
Respondents.

Mrs. M. Karanjawala, Vinoo Bhagat and A.K. Panda for the
interveners. c
J
-4' The Judgment of the Court was delivered by

NATARAJAN, J. A peculiar feature of this appeal by
special leave is that it is not an appeal against conviction
or against acquittal but one preferred by a prosecution D-
witness for expunction of several highly derogatory remarks
made against him by a learned Judge of the High Court of
Orissa while allowing Criminal Appeal No. 31 of 1982 on the
1"' file of the High Court of Orissa. Shri Niranjan Patnaik, the
appellant before us was examined as P.W. 8 in the trial of
T.R. Case No. 6 of 1980 on the file of the Special Judge E
(Vigilance), Sambalpur against the first respondent. The trial
ended in conviction against the first respondent and when the
appeal filed by him came to be heard by the High Court the
~ appellant had beco~ a Cabinet Minister in the State of
Orissa. On account of the dis paraging remarks made by the
"(Appellate Judge the appellant tendered his resignation and F
dendtted office for maintaining democratic traditions. It is
in that backgroud this appeal has come to be preferred.

Pursuant to a trap laid by the Vigilance Police on the
complaint of the appellant's Manager, Gopi Nath Mohanty
(P.w. 2) the first respondent was arrested on 26.4. 79 for G
having accepted a bribe of Rs. 2,000 from Gopi Nath Mohanty.
'r The marked currency notes M.Os. V to XXVI were recovered from
the brief case M.O. II of the first respondent prior to the
arrest. The prosecution case was that the first respondent had
been extracting illegal gratification at the rate of Rs. 1,000
H
474 SUPREME COURT REPORTS [19861 2 s.c.R.

A
per month during the months of January, February and March·, ;r.-
1979 from Gopi Nath Mohanty but all of a sudden he raised the
demand to Rs. 2,000 per month in April 1979 and this led to
Gopi Nath Mohanty laying information (Exhibit I) before the
Superintendent of Police (Vigilance). Acting on the report, a
trap was laid on 26. 4. 79 and, after Gopi Nath Mohanty had
B handed over the marked currency notes the Vigilance party
entered the office and ~ecovered the currency notes from the
brief case and arrested the first respondent. The first --4
respondent denied having received any illegal gratification
but offered no explanation for the presence of the currency
notes in his brief case.
c
Eleven witnesses including the appellant who figured as~
P.W.8 were examined by the prosecution and the first
respondent examined three witnesses D. Ws. 1 to 3 to~
substantiate the defence set up by him, viz., that the sum of
Rs. 2,000 had been paid by way of donation for conducting a
D drama and publishing a souvenir by the Mining Officers' Club
and also towards donation for Children's Welfare Fund. The
Special Judge accepted the prosecution case and held the first
respondent guilty under Section-5(2) read with Section S(l)(d)
of the Prevention of Corruption Act, 1947 (hereinafter
referred to as the 'Act') and Section 161 of the Indian Penal~
E Code (hereinafter referred to as the 'Code'). The Special
Judge awarded a sentence of rigorous imprisonment for one year
for the conviction under the first charge but did not award
any separate sentence for the conviction under Section 161 of
the Code.

F Against the conviction and sentence the first respondent
preferred Criminal Appeal No. 31 of 1982 to the High Court ofY
Orissa. · A learned Judge of the High Court has allowed the
appeal holding that the prosecution has not proved its case by
acceptable evidence and besides, the first respondent's
explanation for the possession of the currency notes appeared
G probable. While acquitting the first respondent the learned
Judge has, however, made several adverse remarks about the
conduct of the appellant and about the credibility of his
testimony and it is with that part of the judgment we are ·now '1
concerned with in this appeal.

H Mr. F.s. Nariman, learned counsel for the appellant
N. PATNAIK v. SASHIBHUSAN KAR [NATARAJAN, J.] 475

A
~- argued that the appellant's limited role in the c~se has been
unnecessarily and unjustly magnified by the Appellate Judge
and furthermore the legal presumptions against the first
respondent have been failed to be applied and these errors
have led the learned Judge to make uncalled for caustic
comments against the appellant. .Mr. Nariman further argued B
that it was not at all necessary for the learned .Judge to have
~ dwelt at length on the value of the testimony of the appellant
for allowing the appeal of the first respondent. Mr. K.
Parasaran, learned Attorney General participated in the debate
pursuant to the notice issued to him and rendered assistance
by placing before us certain earlier decisions laying down the
principles to be followed if adverse couments are to be made c
)r by courts affecting the character and reputation of litigants
~,.- witnesses and third parties. Mr. Jitender Sharma, learned
counsel for the first respondent did not advance any arguments
as no disturbance of the acquittal of the first respondent by
the Appellate Judge is sought for in the appeal.
D
Having regard to the limited scope of the appeal it is
not necessary for us to traverse at length or refer in detail
the circumstances wtder which a trap was laid and the first
)r· respondent was arrested. Suffice it to say that Shri Niranjan
Patnaik, the appellant was the licensee of an Iron Mine known
as Murgabada Mines at Joda. G>pi Nath Mohanty (P.W.2) had been E
employed by him as Manager of the Mines and he was attending
to the affairs of the Mines. The first respondent who was the
Senior Mining Officer for Joda had insisted on payment of
~ Rs. 1,000 to him for allowing mining operations to be carried
on peacefully and Gopi Nath Mohanty had complied with the
~:demand and paid Rs. 1, 000 every month during January to March, F
1979. Unexpectedly when the first respondent raised the demand
to Rs. 2,000 per month Gopi Nath Mbhanty reported the matter •
to the Superintendent of Police (Vigilance) and on his
instructions a trap was laid on 26. 4. 79 and marked currency
notes M.Os.V to XXVI were passed on to the first respondent
and thereafter the raiding party consisting of the Inspector G
of Police, Vigilance (P.W.lO) and an Executive Magistrate
)' (P.w. 9) recovered the money from the first respondent and
arrested him. The first respondent was subjected to a chemical
test of having his hands washed with sodium carbide solution.
The solution turned pink in colour establishing his having
handled the marked currency notes treated earlier with H
phenolphthalein powder. ·
476 SUPREME COURT REPORTS [1986] 2 s.c.R.

A
The appellant was cited as a prosecution witness to ~
speak to the fact that his Manager, Gopi Nath Mohanty (P.W.2)
had informed him in March 1979 of his having parted with a sum
of Rs. 3,000 to the first respondent by way of bribe during
the first three months of 1979 and subsequently about the trap
that had been laid for the first respondent. The appellant was
B not, therefore, a material witness in the case and had only
been cited to corroborate the testimony of Gopi Nath Mohanty
in some measure. As he was not a material or crucial witness ~
Jthe appellant did not evince any interest in the trial of the
case. He, therefore, failed to appear in court in spite of
being summoned to attend the court on 3. 2. 81 and again on
c 6.3.81. His disregard of the summons from court led to a third
suumons being issued on 17. 8. 81 with a warning that if he 'i
failed to appear in court on 7.9.81 he would be compelled to'(~
attend court by means of a warrant. It was on such compulsion
the appellant appeared in court on 7.9.81 and gav~ his
testimony. These facts are not controverted by anyone but even ·
D so the appellant has filed an affidavit before this court to
substantiate these matters.

As earlier stated the first respondent did not deny his
receiving the currency notes from Gopi Nath Mohanty or the ~
recovery of the notes from his brief case M.O.II. He, however,
E stated that the money was given by way of donation for the
welfare projects launched by the Mining Officers' Club. Of the
three defence witnesses examined by him D.W~. 1 and 3 were
Mines Inspectors while D.W.2 was a Peon attached to the office
of the first respondent. D.Ws. 1 and 3 had, however, to admit )r
that the records produced to substantiate the case of donation
F had been prepared after the first respondent had been arreste~
and released on bail and the writings were made to the
dictation of the first respondent.

The Trial Judge while assessing the merits of the
prosecution case took note of the fact that since the first
G respondent did not deny the receipt of money or the seizure of
the curr~ncy notes from him the burden of proof shifted to him
under Section 4( 1) of the Act. The Special Judge was of they
view that the explanation of the first respondent was belated '
and, therefore, was not believable or acceptable and hence he
convicted and sentenced him.
H
N. PATNA.lK v. SASHI~HUSAN KAR [NATARAJAN, J.] 477

A
~ The learned Appellate Judge, while dealing with the
appeal has failed to take note of Section 8 of the Act and
secondly he has given recognition to the rule of presumption
contained in Section 4(1) of the Act only at a belated stage
of the judgment. These factors have to a large extent
distorted the perspective to be taken in the case. Section 8 B
of the Act which is extracted below confers immunity from
prosecution under Section 165A on persons who figure as
_.,.._ witnesses in any proceeding against a public servant for an
offence under Section 161 or Section 165 or under Section 5(2)
or Section 5(3A) of the Act.

Notwi thstanding anything contained in any law for
11
c
the time being in force, a statement made by a
person in any proceeding against a public servant
for an offence under Section 161 or Section 165 of
the Indian Penal Code, or under sub-section (2) or
sub-section ( 3A) of Section 5 of this Act, that he
offered or agreed to offer any gratification (other D
than legal remuneration) or any valuable thing to
the public servant, shall not subject such person
to a prosecution under Section 16SA of the said
Code."

Oversight of this provision has made the Appellate Judge
E
conclude that the appellant and Gopi Nath Mohanty (P.W. 2) are
as wch guilty as the first respondent in the coDJDission of
~
the offences and as such they stand self-condemned as
~ accomplices to the crime and furthe~ore the two of them stood
exposed to prosecution under Section 165A of the Code.
~.. In so far as the rule of presumption under Section 4(1)
F
is concerned the learned Judge has no doubt recognised in the
later portion of the judgment that even though Section 4(1)
would not apply to the charge under Section 5(2) read with
Section S(l)(d) of the act it would undoubtedly stand
attracted to the charge under Section 161 of the Code. If the
G
learned Judge had visualized this position at the outset
~ itself there would not have been any necessity for a
microscopic examination of the evidence of the appellant or
for making sweeping remarks against him. Hr. Nariman is,
therefore, justified to some extent in contending that even
though the Appellate Judge was aware that for the charge under
H
478 SUPREME COURT REPORTS · [1986] 2 s.c.R.

A Section 161 of the Code the first respondent was under an;.....
obligation to rebut the legal presumption raised against him,
the learned Judge has recognised this position only after
devoting the earlier portion of the judgment for decrying the
appellant and Gopi Nath Mohanty for having willingly played
the role of bribe-givers.

B Yet another serious infirmity in the judgment of the
Appellate Judge is that the learned Judge has castigated the~
appellant and Gopi Nath Mohanty for having given bribes of Rs.
1,000 per month for three months to the first respondent and
decried both of them for putting forth a false case while at
the same time holding that the receipt of bribe of three
c thousand rupees is not the subject-matter of charge and as
such the first respondent was under no obligation to disprove'\
the evidence of the app~llant and Gopi Nath Mohanty on that ~
aspect of the matter. Since the payment of Rs. 3,000 during
the earlier months was not the subject-matter of charge there
was no need or necessity for the lear11.ed Judge to have
D critically examined the evidence of the appellant and Gopi
Nath Mohanty on that aspect of the matter. Conversely if the
learned Judge felt that the evidence relating to those
payments had a material bearing on the case he should not have
absolved the first respondent of any qbligation to deny those~
allegations. The error that has crept in because of the
E different standards adopted can be seen from the conflicting
expressions in the judgment extracted as under :

In para 12 of the judgment it is stated as below :-

The statements made by· Mr. Patnaik (P.W.8) and his
11

F Manager (P.w. 2) with regard to willing,)'
participation in the matter of payments of bribe
money to the appellant would bring about their own
condemnation. These two persons, on their own
showing, were bribe-givers. A bribe-giver must be
condemned as much as bribe-taker. Givers of
G bribe-amounts to public servants are undoubtedly
accomplices to the crime ••••••••• Being accomplices ~
to the commission of crime because of their 7
statements of payments of bribe moneys to the
appellant for three months, the evidence of these
self-condemned persons, who, .on their own showing,
H
N. PATNAIK v. SASHIBHUSAN KAR [NATARAJAN, J.] 479

A
had thrown moral scruples and sense of honesty, if
they had any, to the winds for which instead of
refusing to meet the demand of the appellant, they
had willingly paid bribe amounts for three months,
would be unworthy of credit without corroboration
in material particulars and through reliable B
sources."

However, in para 16 of the judgment it is held that the
first respondent was under no obligation to meet the
al!egations relating to the payment of Rs. 3,000 to him. The
relevant portion is worded as follows :
c
·~ had neither been charged under Section 5(2) and
S(l)(d) of the Act or under 'Section 161 of the Code
for receiving illegal gratification during the
months of January to March, 1979 and had not been
asked to meet these allegations. No person can be
condemned unheard and for that reason the appellant D
could not be condemned on the basis of the
statements made by P.W.2 and P.W.S that he had been
paid bribe amount for 3 months @ Rs. 1,000 per
month."

Nevertheless the learned Judge has again reverted to his E
original perspective and commented in para 17 as under :

"If as submitted by the defence, the evidence of
P.Ws.2 and 8 with regard to the monthly payment of
bribe money @Rs. 1,000 per month and the increased
"(.· demand of Rs. 2,000 is not accepted for the F
aforesaid reasons, it would expose the utter
falsity of the evidence of P.Ws. 2 & 8."

Over and above all these, the learned Judge has failed to
consider whether a detailed examination of the testimony of
the appellant was really called for in order to allow the G
appeal of the first respondent and set aside his convictions.
T From what has already been stated it will be apparent that
what fell for consideration was whether a sum of Rs. 2, 000
which was admittedly recovered from the first respondent had
been received by him by way of bribe or by way of donation.
H
480 SUPREME COURT REPORTS [1986] 2 S.C. R.

A For this limited question the appellant was not a material ~
witness in the case. It was only his Mariager, Gopi Nath
Mohanty (P.W.2) who claimed to have made the earlier payments
to the first respo~dent as well as to have given a report and
participated in the trap proceedings when the first respondent
raised the demand of bribe from Rs. 1,000 to Rs. 2,000 per
month. The assumption of the Appellate Judge that Gopi Nath
B Mohanty would not have paid any sum of money to the first
respondent or given the F. I.R. (Exhibit P-1) against him ~
without securing the prior approval of the appellant is only
based on conjecture and not on evidence. The learned Judge has
also overlooked the fact that the appellant had not exhibited
any anxiety to depose against the first respondent and on the .
c other hand he appeared in court and gave evidence only after ""\.
being warned in the summons issued for the third time that a ~
warrant would be issued against him if he failed to respond to ·
the summons. If all these factors had been perceived it would
have been clear that there was no need whatever for a minute
examination of the appellant's testimony or a critical
D inquisition of his character and conduct and the judgment of
acquittal could have as well been rendered with reference to
the failings in the evidence of Gopi Nath Mohanty and the
acceptable feat11res in the explanation of the first respondent -.,
for his possession of the currency notes M. Os. V to XXVI
series.
E
The defective approach made by the Appellate Court has
resulted in paragraphs 9 to 17 being devoted to an evaluation
and criticism of the appellant's evidence out of the total 36 ...,....
paragraphs contained in the judgment. In these paragraphs the
Appellate Judge has severely criticised ,the appellant and has~
F made harsh remarks which are now sought to be expunged. They.~
are extracted below :

"These two persons, on their own showing, were
bribe-givers ••••• Being accomplices to the
commission of crime because of their statements of
G payments of bribe moneys to the appellant for three
months, the evidence of these two self-condemned -,'
persons, who, on their own showing, had thrown
moral scruples and sense of honesty, if they had
any, to the winds for which instead of refusing to
meet the demand of the appellant, they had
H
N. PATNAIK v. SASHI~HUSAN KAR [NATARAJAN, J.] 481

willingly paid bribe-amowts for three oonths, A
would be unworthy of credit without corroboration
in material particulars and through reliable
sources." (Para 12)

" •••• in which case both P.Ws.2 and 8 would be
liable for abetment of commission of the said B
offence by the appellant ••• The acts of P.Ws. 2 and
8 would also be culpable under Section 165-A of the
Code •••• both P.Ws.2 and 8 were liable to be
punished under Section 165-A of the Code. The
investigating agency did not choose to prosecute
the appellant and P.Ws. 2 and 8 for commission of
/
these offences." (Para 13) c
--·-, "Undoubtedly, P.Ws.2 and 8 belong to the first
category.u (Para 14)

" •••• these two accomplices, namely ••• " (Para 15)
D
"While, as observed by me, P.Ws • 2 and 8 have
condemned themselves as habitual bri.be-givers by
their own statements and for this, they have to
blame none but themselves." (Para 17)

It will be apposite to mention here that the appellant E
has nowhere stated in his evidence that Gopi Nath Mohanty made
the payment· of Rs. 3, 000 for the three months in question
~after obtaining his permission or approval. On the other hand
he has only deposed that in March 1979 Gopi Nath Mohanty had
iqformed him of the payment of these amounts, and in order to
~lance the accounts he had given directions for the amount F
being shown as impressed cash with the Manager. The Appellate
Judge has also proceeded on the assumption that the appellant
was holding a public office at the relevant time while in fact
the appellant had neither joined the Ministry nor even became
a Member of the Legislative Assembly when the first respondent
was trapped and arrested. G

We may now refer to certain earlier decisions where the
right of courts to make free and fearless comments and
observations on the one hand and the corresponding need for
maintaining sobriety, moderation and restraint regarding the
H
482 SUPREME COURT REPORTS [19861 2 s.c.R.

A
character, conduct integrity, credibility etc. of parties, )-
witnesses and others are concerned.

In The State of Uttar Pradesh v. Mahawnad Naill, [ 1964] 2
s.c.R. 363 it was held as follows :
B "If there is one principle of cardinal importance
in the administration of justice, it is this : the~
proper freedom and indep~ndence of Judges and
Magistrates must be maintained and they must be
allowed to perform their functions freely and
fearlessly and without undue interference by any
c body, even by this court. At the same time it is
equally necessary that in expressing their opinions ~
Judges and Magistrates must be guided by¥_:
considerations of justice, fairplay and restraint. ·
It is not infrequent that sweeping generalisations
defeat the very purpose for which they are made. It
D 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 ·
E
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 condu~:t. It has also been
F
recognised that judicial pronouncements must ~
judicial in nature, and should not no~lly depar~
from sobriety, moderation and reserve."

Vide also in LK.. Lak.sJwanan V• A.K. Srinivasan & Anr.,
[1976} 1 S.C.R. 204 wherein this ratio has been referred to.
G
In Pancbanan .Bauerji V• Upendra Math Bbattacharji, A.I.R.
1927 Allahabad 193 Sulaiman, J. held as follows : ~

"The High Court, as the supreme court of revision,
must be qeemed to have power to see that Courts
H below do not unjustly and without any lawful excuse
N. PATNAIK V• SASHlBHUSAN KAR [NATARAJAN, J.] 483
..
take away the character of a party or of a witness A .
or of a counsel before it."

It is, therefore, settled law that harsh or disparaging tt
~)
remarks are not to be made against persons and authorities
whose conduct comes into consideration before courts of law
unless it is really necessary for the decision of the case, as B
"'- - ~an integral part thereof to animadvert '>n that conduct. We
f T
hold that the adverse remarks made against the appellant were
neither justified nor called for.

~r- Having regard to the limited controversy in the appeal to
the High Court and the hearsay nature of evidence of the
appellant it was not at all necessary for the Appellate Judge c
~'- to have animadverted on th~ conduct of the appellant for the
.. purpose of allowing the appeal of the first respondent. Even
assuming that a serious evaluation of the evidence of the
appellant was really called for in the appeal the remarks of
the learned Appellate Judge should be in conformity;with the
settled practice of courts to observe sobriety, moderation and D
reserve. We need only r emind that the hlgh~r the forum and the
~. greater the po~rs, the greater the ne~d ior restraint and the
more mello~d the reproach should be.

As we find merit in the contentions of the appellant, for
E
the aforesaid reasons, we allow the appeal and direct the
derogatory remarks made against the appellant set out earlier
to stand expunged from the judgment under appeal• ...

A.
..., P.s.s. Appeal allowed •
F