Full Judgment
(WRIT PETITION UNDER ARTICLE 226227 OF THE CONSTITUTION OF INDIA)
1. The petitioner who is presently working as Specialist in Community Health Centre, Malkharoda, District Janjgir- Champa has filed this petition challenging his suspension order, charge-sheet, departmental enquiry initiated against him as also the recommendations of the Additional Public Prosecutor for taking action against him. The petitioner has also prayed for expunction of the adverse remarks made in paragraph 39 and 40 of the judgment dated 21.04.05 rendered by the Additional Sessions Judge Janjgir.
2. According to the counsel for the petitioner, during the pendency of this petition the suspension order of the petitioner has been revoked and in the departmental enquiry also he has been exonerated vide order dated 04.01.10 and therefore, for the present, he is confining his relief only to the expunction of adverse remarks made by the Additional Sessions Judge Janjgir in paragraph 39 and 40 of its judgment dated 21.04.05.
3. Facts of the case in brief are that on 14.04.04 one Navdha Soni died and postmortem of her dead body was conducted by the petitioner who at the relevant time was working as Medical Officer at District Hospital Janjgir- champa. In Sessions trial No. 224/04, four accused persons were prosecuted for the death of Navdha Soni and during trial the petitioner was examined as P.W. 15 vide Annexure P- 7. Statement of the petitioner was recorded by the Court at length and thereafter he was cross-examined by the counsel appearing for the accused. Document (Annexure P-7) reveals that even the Court has examined the present petitioner. After conclusion of the evidence on 21.04.05 learned Additional Sessions Judge Janjgir-Champa has passed the judgment convicting the accused persons for different offences. While passing the judgment, in paragraphs 39 and 40 learned Additional Sessions Judge has made certain remarks against the petitioner which according to him are totally uncalled for and have made the petitioner to suffer a lot because the proceedings were recommended against him by the Additional Public Prosecutor and thereafter he was subjected a departmental enquiry for no fault on his part.
4. Counsel for the petitioner submits that there was no occasion for the trial court to pass an adverse remarks against the petitioner because being a Doctor on duty he had performed the post-mortem examination on the body of the deceased and submit his report according to him in the Court the petitioner was not only cross-examined by the defence counsel but also by the Court and if there was any anomaly, he was to be put the question to that effect. He submits that without affording an opportunity learned Additional Sessions Judge has made the remarks against the petitioner which is not permissible in the eye of law. In support of his submission he placed his reliance on the decisions of the Supreme Court in the matter of Manish Dixit and Others v. State of Rajasthan reported in (2001) 1 SCC 596. In the matter of DR. Dilip Kumar Deka and another v. State of Assam and another reported in (1996) 6 Supreme Court Cases 234 and in the matter of Testa Setalvad and another v. State of Gujarat and others reported in (20004) 10 Supreme Court Cases 88.
5. On the other hand counsel for the respondents argued that the petitioner should have been more vigilant while performing the post-mortem examination. He however admits that the adverse remarks against the petitioner by the trial Court in its judgment dated 21.04.05 have been made behind the back of the petitioner without affording any opportunity of hearing to him.
6. Heard counsel for the parties and perused the documents available on record.
7. Before getting ahead, it appears appropriate for this Court to take note of the remarks so made by the trial Court, with read as under:
LANGUAGE
8. It is a settled legal position that no adverse remark can be made against the investigating officer or the doctor who is a witness in a criminal case behind his back without affording him an opportunity of hearing. In the case in hand, it is manifest from the record that castigating remarks against the petitioner have been made by the trial Court without affording an opportunity of hearing. If the entire judgment of the trial Court including paragraphs 39 and 40 thereof is seen, this Court does not think that in the absence of judicial reprobation made by the Additional Sessions Judge, the judgment would have met a different or contrary fate because it was for the Court concerned to appreciate the evidence adduced by the prosecution so as to arrive at a particular conclusion. The Court has absolutely no right to pass any adverse remark either against the enquiry officer or the doctor who appears as a witness in a criminal case because such condemnation without giving them an opportunity of being heard is a complete negation of the fundamental principle of natural justice.
While dealing with almost a similar question in the matter of Manish Dixit and Others v. State of Rajasthan it has been held by the Apex Court as under:
"43. Even those apart, this Court has repeatedly cautioned that before any castigating remarks are made by the court against any person, particularly when such remarks could ensure serious consequences on the future career of the person concerned, he should have been given an opportunity of being heard in the matter in respect of the proposed remarks or strictures. Such an opportunity is the basic requirement, for; otherwise the offending remarks would be in violation of the principles of natural justice. In this case such an opportunity was not given to PW 30 (Devendra Kumar Sharma). State of U.P. v. Mohd. Naim, Ch. Jage Ram v. Hans Raj Midha, R.K. Lakshmanan v. A.K. Srinivasan, Nirangan Patnaik v. Sashibhusan Kar and State of Karnataka v. Registrar General, High Court of Karnataka)."
Further in the matter of DR. Dilip Kumar Deka and another v. State of Assam and another, it has been held by the Apex Court as under:
"6.Pursuant to the order passed by this court on 28.11.1995 in a Public Interest Litigation, being Writ Petition NO. 640 of 1995 (Anukul Chandra Pradhan v. Union of India), which was confirmed by order dated 02.04.1996, the appellants have been restrained from going abroad. In reply to the aforesaid writ petition, the respondent stated that the investigation in the first information report lodged by Lakhu Bhai Pathak was still pending. Thereafter, on 12.04.1996, the respondent filed a charge-sheet in the Court of the Chief Metropolitan Magistrate (CMM), Delhi, against the two appellants. The CMM, Delhi, vide order dated 02.05.1996, took cognizance of the offence and issued non- bailable warrants against both the appellants. Consequent thereto, the appellants were arrested in Madras on 02.05.1996 and have been in custody since then. The appellants, on 03.05.1996, filed an application for cancellation of the non-bailable warrants and also moved another application for grant of bail. Both these applications were dismissed by the CMM on 04.05.1996. He also passed an order cancelling the bail granted earlier to the appellants on 17.02,1988.
7. The orders dated 02.05.1996 and 04.05.1996 were challenged by Appellant 1 under Section 482 Cr PC before the High Court, but without success. By order dated 08.05.1996, the prayer for bail was rejected by the High Court of Delhi. The three main grounds for rejecting bail were: (i) new material had come to light; (ii) the CBI apprehended that the appellants may tamper with the evidence; and (iii) the Supreme Court had restrained the appellants from going abroad in view of the apprehension expressed by the CBI."
9. From the documents available on record it is also revealed that the adverse remark made by the Court involves serious consequences as based on the said remark, Additional Public Prosecutor and the District Public Prosecutor have recommended an action against the petitioner and based on these two recommendatory letters the petitioner was subjected to departmental enquiry though fortunately he stood absolved in the same.
10. Thus in the light of the settled legal position detailed above, this Court is of the considered opinion that the adverse remarks made against the petitioner by the Court below cannot be allowed to stand particularly when before doing so the petitioner has not been afforded any opportunity of explaining his conduct. This Court would also like to hold that there was absolutely no justification in making such adverse remarks against him to arrive at a just conclusion in the case.
11. Consequently, the petition is allowed so far as it relates to passing of adverse remarks by the Court below against the petitioner and that being so the same hereby stands expunged.