Full Judgment Text
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PETITIONER:
NIRANJAN PATNAIK
Vs.
RESPONDENT:
SASHIBHUSAN KAR & ANR.
DATE OF JUDGMENT11/04/1986
BENCH:
NATRAJAN, S. (J)
BENCH:
NATRAJAN, S. (J)
ERADI, V. BALAKRISHNA (J)
CITATION:
1986 AIR 819 1986 SCR (2) 470
1986 SCC (2) 569 1986 SCALE (1)877
CITATOR INFO :
D 1987 SC 294 (24,47)
R 1987 SC1436 (14)
R 1990 SC1737 (14)
ACT:
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
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
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.
HEADNOTE:
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
allowing mining operations to be carried on peacefully and
suddenly raised the demand to rupees two thousand per month,
a trap was laid by the vigilance police and marked currency
notes 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 explanation was offered for the possession of the
currency notes.
Before the trial court the defence of the accused -
first respondent, was that the money was given by way of
donation for the welfare projects launched by the Mining
Officers’ Club. The appellant was cited as a prosecution
471
witness (P.W.8) to corroborate the testimony that his
manager had informed him of having parted with a sum of
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rupees three thousand to the first respondent during the
first three months of 1979, and subsequently about the trap
that had been laid. The trial court rejecting the belated
explanation of the first respondent found him guilty under
s. 5(2) read with s.5(1)(d) of the Act and s. 161 of the
Indian Penal Code, and convicted and sentenced him.
The High Court while setting aside the conviction and
sentence of the first respondent, observed that the
appellant and his manager being accomplices to the
commission of the crime, having willingly played the role of
bribe givers for three months, the evidence of these self-
condemned persons, 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
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 subject matter of the charge there was no need for
the Court to have critically examined the evidence of the
appellant on that aspect of the matter.
Allowing the appeal, the Court,
^
HELD: 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]
State of U.P. v. Mohammad Naim, [1964] 2 S.C.R. 363;
R.K. Lakshmanan v. A.K. Srinivasan & Anr., [1976] 1 S.C.R.
204 and Panchanan Banerji v. Upendra Nath Bhattacharji,
A.I.R. 1927 All. 193, referred to.
In the instant case, the derogatory remarks made
against
472
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
castigated him. Even assuming that a serious evaluation of
the evidence of the appellant was really called for, the
remarks of the court should have been in conformity with the
settled practice to observe 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]
2. There was no need whatever for a minute examination
of the appellant’s testimony or a critical inquisition of
his character and conduct. The judgment of acquittal could
have as well been rendered with reference to the failings in
the evidence of P.W.2 and the acceptable features in the
explanation of the first respondent. [480 D]
What fell for consideration by the court was not the
receipt of money during the previous months but whether the
sum of two thousand rupees, which was admittedly recovered
from the first respondent, had been received by him by way
of bribe or by way of donation. For this limited question
the appellant was not a material witness. [479 G; 478 D; 480
A]
3. Section 8 of the Prevention of Corruption Act
confers immunity from prosecution under s. 165A of the
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Indian Penal Code on persons who figure as witnesses in any
proceeding against a public servant for an offence under s.
161 or s. 165 of the Code or under s. 5(2) or s. 5(3A) of
the Act. Where the 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 s. 4(1) does not apply to a charge
under s. 5(2) read with s. 5(1)(d) of the Act, it is
certainly attracted to a charge under s. 161 of the Code.
Failure of the appellate court in the instant case, to
appreciate this legal position at the outset to a large
extent distorted the perspective to be taken in the case.
[477 B, 478 D-E, 477 F, 477 G, 477 A]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
421 of 1985
473
From the Judgment 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.
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.
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
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
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
(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 become a Cabinet Minister in the
State of Orissa. On account of the disparaging remarks made
by the Appellate Judge the appellant tendered his
resignation and demitted 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
having accepted a bribe of Rs. 2,000 from Gopi Nath Mohanty.
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
474
per month during the months of January, February and March,
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
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Mohanty had handed over the marked currency notes the
Vigilance party entered the office and recovered the
currency notes from the brief case and arrested the first
respondent. The first respondent denied having received any
illegal gratification but offered no explanation for the
presence of the currency notes in his brief case.
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 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
5(1)(d) of the Prevention of Corruption Act, 1947
(hereinafter referred to as the ‘Act’) and Section 161 of
the Indian Penal 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.
Against the conviction and sentence the first
respondent preferred Criminal Appeal No. 31 of 1982 to the
High Court of 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 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 concerned with in this appeal.
Mr. F.S. Nariman, learned counsel for the appellant
475
argued that the appellant’s limited role in the case 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 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 comments are to be made 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.
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 under which a trap was laid and the
first 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. Gopi Nath Mohanty
(P.W.2) had been 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
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had complied with the demand and paid Rs. 1,000 every month
during January to March, 1979. Unexpectedly when the first
respondent raised the demand to Rs. 2,000 per month Gopi
Nath Mohanty 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 of Police, Vigilance
(P.W.10) 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 phenolphthalein
powder.
476
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 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 the 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 6.3.81. His disregard of the summons
from court led to a third summons being issued on 17.8.81
with a warning that if he 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 gave his testimony. These facts are not
controverted by anyone but even 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, 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.Ws. 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 that the records produced to substantiate
the case of donation had been prepared after the first
respondent had been arrested 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
respondent did not deny the receipt of money or the seizure
of the currency notes from him the burden of proof shifted
to him under Section 4(1) of the Act. The Special Judge was
of the view that the explanation of the first respondent was
belated and, therefore, was not believable or acceptable and
hence he convicted and sentenced him.
477
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
of the Act which is extracted below confers immunity from
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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.
"Notwithstanding anything contained in any law for
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 than legal remuneration) or any valuable
thing to the public servant, shall not subject
such person to a prosecution under Section 165A of
the said Code."
Oversight of this provision has made the Appellate
Judge conclude that the appellant and Gopi Nath Mohanty
(P.W.2) are as much guilty as the first respondent in the
commission of the offences and as such they stand self-
condemned as accomplices to the crime and furthermore 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)
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 5(1)(d) of the act it would undoubtedly stand
attracted to the charge under Section 161 of the Code. If
the 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. Mr. Nariman is,
therefore, justified to some extent in contending that even
though the Appellate Judge was aware that for the charge
under
478
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.
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 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 appellant 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 learned Judge
to have 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
obligation to deny those allegations. The error that has
crept in because of the 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
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his 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 bribe-
amounts to public servants are undoubtedly
accomplices to the crime..........Being
accomplices to the commission of crime because of
their statements of payments of bribe moneys to
the appellant for three months, the evidence of
these self-condemned persons, who, on their own
showing,
479
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
sources."
However, in para 16 of the judgment it is held that the
first respondent was under no obligation to meet the
allegations relating to the payment of Rs. 3,000 to him. The
relevant portion is worded as follows :
"He had neither been charged under Section 5(2)
and 5(1)(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 could not be condemned on the basis of
the statements made by P.W.2 and P.W.8 that he had
been paid bribe amount for 3 months @ Rs. 1,000
per month."
Nevertheless the learned Judge has again reverted to
his 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 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
appeal of the first respondent and set aside his
convictions. 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.
480
For this limited question the appellant was not a material
witness in the case. It was only his Manager, Gopi Nath
Mohanty (P.W.2) who claimed to have made the earlier
payments to the first respondent 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 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
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appellant had not exhibited any anxiety to depose against
the first respondent and on the 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
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 features in the explanation of the first
respondent for his possession of the currency notes M.Os. V
to XXVI series.
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 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
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
481
willingly paid bribe-amounts for three months,
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
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)
"Undoubtedly, P.Ws.2 and 8 belong to the first
category." (Para 14)
"....these two accomplices, namely..." (Para 15)
"While, as observed by me, P.Ws. 2 and 8 have
condemned themselves as habitual bribe-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
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 informed him of the payment of these amounts,
and in order to balance the accounts he had given directions
for the amount 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
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and arrested.
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
482
character, conduct integrity, credibility etc. of parties,
witnesses and others are concerned.
In The State of Uttar Pradesh v. Mohammad Naim, [1964]
2 S.C.R. 363 it was held as follows :
"If there is one principle of cardinal importance
in the administration of justice, it is this : the
proper freedom and independence 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
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 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 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
conduct. It has also been recognised that judicial
pronouncements must be judicial in nature, and
should not normally depart from sobriety,
moderation and reserve."
Vide also in R.K. Lakshmanan v. A.K. Srinivasan & Anr.,
[1976] 1 S.C.R. 204 wherein this ratio has been referred to.
In Panchanan Banerji v. Upendra Nath Bhattacharji,
A.I.R. 1927 Allahabad 193 Sulaiman, J. held as follows :
"The High Court, as the supreme court of revision,
must be deemed to have power to see that Courts
below do not unjustly and without any lawful
excuse
483
take away the character of a party or of a witness
or of a counsel before it."
It is, therefore, settled law that harsh or 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.
We hold that the adverse remarks made against the appellant
were neither justified nor called for.
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 to have animadverted on the 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
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sobriety, moderation and reserve. 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.
As we find merit in the contentions of the appellant,
for 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.
P.S.S. Appeal allowed.
484