ANUJARAM PARHI Vs. STATE OF ORISSA

JUDGEMENT

(1.) ORDER:- This is an application invoking the inherent jurisdiction of this Court for expunction of certain remarks made by the learned Sessions Judge against the petitioner while disposing of Sessions Trial No. 19 of 1985.

(2.) The petitioner is a doctor and was called upon to conduct post-mortem examination on the dead body of the deceased on 1-9-1984 in P. S. Case No. 139 dated 31-8-1984. The said dead body was found lying on the National Highway at Didu Chhak on 30/31-8-1984 at 4.00 P.M. The petitioner as the doctor conducting the post mortem examination was examined by the prosecution as P.W. 6. The learned Sessions Judge after considering the entire evidence on record came to hold that the case being one of circumstantial evidence and there being no eye-witness to the occurrence and the circumstances not having been established to prove the guilt of the accused, the prosecution had failed to establish the charge beyond reasonable doubt. The Sessions Judge, therefore, acquitted the accused persons. But while considering the evidence of the doctor, P.W. 6 (the present petitioner) in para 17 of the judgement, the learned Sessions Judge observed :-

(3.) Before the decision of the Supreme Court in the case of State of Uttar Pradesh v. Mohammad Naim, AIR 1964 SC 703, there was conflict of opinion as to the jurisdiction of the High Court to expunge objectionable matter from the judgement of an inferior court. One view was that the High Court had no jurisdiction to expunge passages from the judgement of an inferior court which had not been brought before it in regular appeal or revision. The other view was that the High Court had inherent power to expunge objectionable passages from a judgement either delivered by itself or by a subordinate court which are either relevant or inadmissible or which adversely affect the character of a person before the Court. The controversy, however, remains res integra in view of the decision of the Supreme Court, referred to supra. It has been authoritatively held in the aforesaid case by the Supreme Court that the High Court can, in exercise of its inherent jurisdiction, expunge remarks made by it or by a lower court if be necessary to do so to prevent abuse of the precious of the Court or otherwise to secure the ends of justice although the matter has not been a brought before it in regular appeal or revision. While saying so, the Supreme Court has also stated a word of caution that the power of expunction is of an extraordinary nature and has to be exercised with great care and caution. Courts of justice, no doubt, in the interest of the proper administration of justice should be allowed to perform their functions freely and fearlessly and to comment upon the statement of a witness when relevant to the case and there should not be undue interference by the High Court in this regard. But where there is no foundation for the remark in question nor is it necessary for a court to make the remark for a just decision of the case and such remark adversely affects the person against whom it is made, the courts of justice should refrain from making such remark. It is always the settled principle that a court should bear in mind while weighing the evidence and arriving at a conclusion on questions of fact that the court should not be harsh and should exercise great reserve and moderation. It is not in the interest of administration of justice that courts should make sweeping aspersion or use intemperate language which is unduly harsh particularly when the person disparaged has hardly any opportunity of explaining or defending himself. If the conduct of a witness appears to the Judge to be suspicious on otherwise not above board, he has the right and duty to test his evidence by putting questions to him. But before the court is justified in commenting adversely upon the evidence, it must establish the particular fact warranting such criticism and remarks cannot be made on conjectures. It has been laid down by the Supreme Court in the case of Dr. Raghubir Saran v. State of Bihar, AIR 1964 SC 1, that if an unjustifiable attack is made on a person who had no opportunity of being heard in his own defence, and the remark is irrelevant and separable, it should be expunged. In the other Supreme Court case, referred to earlier AIR 1964 SC 703 it has been held that the power to expunge can be exercised to delete passages in a judgement which though based on evidence, damage the character of a person, are wholly irrelevant to any point in issue and which the court has unnecessarily gone out of its way to include in the judgement. It is in this context a Special Bench of the Lahore High Court in the case of Philip William Ravanshawe Hardless v. Gladys Isabel Hardless, AIR 1940 Lah 82, has observed that a remark which is not necessary for the conclusion reached by the court nor even necessary to its argument and is likely to militate seriously against the party's earning a living or his future career, has to be expunged from the judgement. In fact, in a recent case of Niranjan Patnaik v. Sri Sashibhusan Kar a case from this Court, reported in (1986) 61 Cut LT 523, the Supreme Court considered certain remarks made against a witness and observed :-