GOKULANANDA MOHANTY Vs. STATE OF ORISSA

JUDGEMENT

(1.) THIS application invoking the inherent jurisdiction of this Court under Section 482 of the Code of Criminal Procedure has been made by P.W. 15 for expunging certain remarks alleged to have been made by the Addl. Special Judge, Bhubaneswar in T.R. Case No. 12 of 1982. The accused who was the Executive Officer of Pipili. Notified Area Council during the year 1976 -77 stood charged under Section 409, Indian Penal Code and Sections 5(i)(c) and 5(i)(d) of the Prevention of Corruption Act read with Section 5(2) thereof on the allegation that various amounts ranging from Rs. 100/ - to Rs. 500/ - were paid to him towards security deposit, which he did not deposit in the respective Savings Bank accounts of the incumbents. P.W.15, the present Petitioner, was the Chairman of the Notified Area Council during the relevant period.

(2.) THE accused took the defence that it was not the practice that the security amount would be deposited with the Executive Officer and, on the other hand, the usual practice was that the amount should be deposited with the Cashier and that no amount was over received by him. He further took the stand that as be took disciplinary action against the employees for misappropriating octroi tax, after the accused was transferred from Pipili, the Chairman in connivance with the Cashier, in order to escape their liability, have falsely foisted the case.

(3.) MR . Misra, the learned Counsel for the Petitioner, contends that there is no foundation for the remarks in question and it was not necessary for the learned Judge to make such remarks while discussing the evidence of P.W. 15. and therefore, this is a fit case where the remarks in question should be expunged. According to the learned Counsel for the Petitioner the law laid down by the Supreme Court in the case of Niranjan Patnaik v. Sashi Bhusan Kar and Anr. : A.I.R. 1986 S.C. 819, as well as in the case of The State of Uttar Pradesh v. Mohammad Naim : A.I.R. 1964 S.C. 703, fully applies to the facts and circumstances of the case and therefore the disparaging remarks read by the learned Trial Judge against the Petitioner must be expunged it being abuse of the process of the Court. In Mohammad Naim's case : A.I.R. 1964 S.C. 703 the Supreme Court was considering certain sweeping remarks that had been made by a single Judge of the Allahabad High Court condemning the entire police force of the State. It was held by their Lordships that such remarks were not justified on the facts of the case nor were necessary for the disposal of the case and accordingly the Supreme Court expunged those remarks. In Niranjan Patnaik's case : A.I.R. 1986 S.C. 819. certain remarks had been made by a learned single Judge of this Court while disposing of a Criminal Appeal against Sri Niranjan Patnaik who was examined as a prosecution witness in the trial of the case. The. Supreme Court observed that for the limited question that arose for consideration in the appeal being whether the money received from the accused was by way of bribe or not, the owner of the Mines was not a material witness and, therefore, there was no need at all fora minute examination of the owners testimony or a critical inquisition of his character and conduct and therefore the remarks made against the owner were thus neither justified nor called for and accordingly expunged those remarks. There is no quarrel with the proposition laid down by the aforesaid two authoritative pronouncements of the Supreme Court, but lam of the considered opinion that the principles laid down therein have no application to the facts and circumstances of the present case. In the present case, to come, to a conclusion whether the accused Executive Officer received the money from P.Ws. 1 to 11 and yet did not account for the same, the evidence of P.W. 15, then the Chairman of the Notified Area Council becomes vital. In assessing the reliability of said P.W. 15. the learned trial Judge has made some comments on the basis of the evidence of P.W. 15. Some comments have been made on account of inherent contradiction by the prosecution witnesses and on account of omission from their earliest version to the investigating officer. In that view of the matter, it cannot be said that the comments made against P.W. 15 are either uncalled for or irrelevant nor can it be said that P.W. 15 was not a material witness in the case. Whether the evidence of a particular witness in a case is regarded as a pivot of the prosecution case and a Court on scrutiny of the said evidence for determining the reliability of the said witness makes certain observations in respect of the said witness basing upon the materials on record, such remarks become an integral part of the judgment in as much as the judgment of acquittal or conviction depends upon the reliability of such a witness. In such a case, the alleged remarks made by the Court with regard to the testimony of a witness really forms the ground for the ultimate conclusion and therefore such remarks do not fall within the ambit of law laid down in Niranjan Patnaik case or in the case of State of Uttar Pradesh v. Mohammad Naim, on which Mr. Misra, the learned Counsel for the Petitioner strenuously placed reliance. Having perused the impugned judgment of acquittal passed by the Addl. Special Judge and having applied my mind to the particular portions in the judgment which the Petitioner's counsel seeks to be expunged. I am not in a position to hold that those remarks are unwarranted unnecessary or irrelevant. Nor can they be characterised as an observation of sweeping nature. It is no doubt true that Judges when comment on the conduct of a party or a witness should be careful to use sober and restraint languages but where the observations made relate to the reliability of the testimony of a witness and such observations have been made by the Court of law on the basis of the evidence on record and which has a direct bearing on the ultimate conclusion such remarks cannot be expunged by invoking the extraordinary jurisdiction of this Court. The alleged offending remarks against P.W. 15 have been made with reference to his evidence in Court and testing the same with reference to other evidence in the case after proper scrutiny of the entire evidence on record. The so -called reference against P.W. 15 are relevant to the point in issue and, in my opinion, are not separable having forward an integral part of the judgment and therefore question of expunging those remarks in exercise of the inherent jurisdiction of this Court does not arise.