PETITIONER:
DR. DILIP KUMAR DEKA & ANR.
Vs.
RESPONDENT:
STATE OF ASSAM & ANR.
DATE OF JUDGMENT: 10/09/1996
BENCH:
G.B. PATTANAIK (J)
RAMASWAMY, K.
ACT
HEADNOTE
JUDGMENT
ORDER
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 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 Police Station on August 1,1995. In connection with the 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. 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 advice, 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 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 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 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 with the said direction the Superintendent asked the appellants to submit a detailed report of her medical examination and on the basis of the report so submitted, he sent his report to the learned Magistrate. On perusal of the report 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, 1995 and on perusal thereof and other materials on record, the Chief Judicial Magistrate, Guwahati passed an 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 on
16.8.1995. 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 I/O 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 detention of
the accused Geeta Kalita in the MMC
Hospital at the moment is not at
all necessary and the I/O has also
shown no interest to get the
accused discharged from the
hospital and produce before the
Court.
Under the circumstances I refuse to
allow the accused Geeta Kalita to
be kept in the hospital any further
and decline to extend the 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 I/O.
The I/O shall attend the MMC
Hospital to receive the accused and
produce her before the court by
1.30 p.m. on 29.8.1995 positively.
By flouting the orders of the Court
both the I/O and Dr. A.C. Bora,
Superintendent, GMC Hospital have
demeaned the authority of the Court
without any justifiable reasons.
Therefore, 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. A.C.
Bora, Superintendent,
G.M.C.Hospital Guwahati and the I/O
are hereby directed to show cause
why they should not be proceeded
with for 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 I.O. 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 anemia and
minor bowel irregularity."
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. DK Deka and
Dr. PK 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. DK Deka and
Dr. PK 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. PK Baruah of MMC
Hospital her hospitalisation was
continued till 27.8.1995;
(iv) The IO is also a party to all
manipulation with the two doctors;
(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. DK Deka
and Dr. PK 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 behavior of
the two doctors, their extraneous
activities speaks a volume about
their professional ethics......" 6. The tests to be 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 it were succinctly laid down by this Court in State in Uttar Pradesh vs. Moh. 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 explaining
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 Jage Ram, Inspector of Police & Anr. vs. Hans Raj Midha AIR 1972 SC 1140, R.K. Lakshmanan vs. A.K. Srinivasan AIR 1975 SC 1741 and Niranjan Patnaik vs. 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 cannot be gainsaid that the nature of remarks the learned Judge has made, has cast a serious aspersion on the appellants affecting their character and reputation and may, ultimately affect their career also. Comdemnation 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 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 learned 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 adverse comments against the IO. 9. Mr. Goswami, the learned counsel for the appellants, contended that it could not be said that the report of the medical Board belied those of the appellants for they were based on clinical examination of Smt. Kalita 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 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. 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 because it had recorded such a finding. Before drawing any conclusion that an inferior body on Court has recorded a wrong finding with an ulterior motive or for an oblige 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 fair play would be casualities. 11. Now that we have found, applying the first two test of Mohd. Naim’s case (supra) that the impugned remarks cannot be justified, the question whether it satisfies the 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 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 mellowed the
reproach should be." 12. Recently, in Abani Kanti Ray vs. State of Orissa & Ors. 1990 Court has made the following observations after referring to the earlier cases of this Court, including R.K. Lakshmanan (supra) and Niranjan (supra):
"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 judicial
behaviors. 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." 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 more dignity to the high office the learned Judge holds and imparts greater respect for the judiciary. For the foregoing discussion we allow this appeal and quash the earlier quoted disparaging remarks made against the appellants. 14. Before parting with this judgment we wish to point put 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. A.C. Bora, Superintendent, MMCH and Investigating Officer and not the two appellants before us.