Persy Gerald Papali Vs. Abraham
IN THE HIGH COURT OF KERALA AT ERNAKULAM
Crl. M.P. No. 195 of 1962
Decided On: 14.12.1962
Appellants: Persy Gerald Papali
Vs.
Respondent: Abraham
Hon'ble Judges/Coram:
P. Govinda Menon, J.
ORDER
P. Govinda Menon, J.
1. This is an application under section 561-A, Criminal Procedure Code for expunging certain remarks made against the petitioner by the Additional First Class Magistrate of Ernakulam. C.C. No. 18 of 1961 was a case filed by Sri E.V. Abraham, an Advocate of Ernakulam, against Sri K. Raveendran, Editor and Sri K. Mukundan Menon, Printer and Publisher of a newspaper called Jai Hind for publishing a defamatory article against him in the issue dated 18th March, 1960 thereby committing an offence punishable under sections 500 and 501, Indian Penal Code. The facts that gave rise to the publication had been stated by the learned Magistrate and need not be reiterated here. The publication was admitted by the accused and there can be no doubt that the allegations in the publication were per se defamatory. The accused pleaded Exceptions 1 and 9 of section 499, Indian Penal Code and examined as many as 22 defence witnesses in his defence. The petitioner was D.W. 20 in the case. He gave evidence regarding the suit filed by him, the compromise attempted to be effected and hip going to the hospital and finding that the defendant in his case had died long before the Vakalath in the case was produced by the complainant. The learned Magistrate on a consideration of the evidence found that the onus which lay heavily on the accused to prove the truth of good faith had not been discharged and found the accused guilty. In the course of the judgment the learned Magistrate made certain, remarks about D.W. 20 in paragraph 32 and it is those remarks which are now sought to be expunged from the judgment.
2. It cannot be gainsaid that the remarks complained of reflected adversely on the character of the petitioner and tarnish his reputation. The learned Public Prosecutor for the State has fairly conceded that he is unable to say that these remarks were necessary for a fair and proper disposal of the case. A perusal of the judgment would also show that these remarks form no part of the argument on which the learned Magistrate has rested the decision in the case. Indeed they stand out as irrelevant and unnecessary observations wholly unconnected with the reasoning or the conclusions of the Magistrate.
3. The next question is whether these remarks should be expunged from the records. The power of the High Court to expunge offending passages from the judgment of any subordinate Court is well settled. Reference may be made to the decisions in Lal Singh v. State MANU/PH/0069/1959 : A.I.R. 1959 Punj. 211; Ajoy Kumar Mukerjee v. The State MANU/GH/0003/1959 : A.I.R. 1959 Assam 8; Rangachari v. State of Andhra (1955) Andh. W.R. 374 Dewan v. State of Andhra MANU/AP/0037/1957 : A.I.R. 1958 Aadh. Pra. 70; Lalit Kumar v. Bose MANU/UP/0127/1957 : A.I.R. 1957 All. 398; In re P.P. Ramaswami Pandithan MANU/TN/0365/1957 : A.I.R. 1958 Mad. 305 and Harendra Nath v. State MANU/BH/0178/1950 : A.I.R. 1951 Pat. 285.
4. Learned Counsel who appeared for the complainant has argued that in order to maintain the independence of the judiciary, Magistrates and other subordinate Courts should be accorded full freedom to express such views and make such observations in their judgments as they may think fit. As stated in a recent case in Abdul Khader v. State 1960 Cr.L.J. 66.
"While this Court must carefully guard against doing anything which might tend to restrict the free and independent expression of judicial opinion on the part of Magistrates and Judges it should also ensure that high judicial standards are always maintained by Magistrates and Judges and that no violation of judicial propriety is allowed to take place under any circumstances. And while the independence of the judiciary must be jealously protected we should with equal anxiety prevent abuse of its process by any Court. A Judge who goes out of his way and needlessly besmirches the character of a party or a witness will expose himself to the attack of being devoid of judicial temper and proper judicial balance in his approach and conduct. The language employed by a Magistrate or a Judge should be sober, restrained and dignified; it should not disclose bitterness, bias or undue harshness. Nor is there any place for flippancy in the proceedings or the record of a Court of law. The majesty of law can brook no levity. The personal views or personal impressions which a Magistrate or a Judge may have about a party or a witness should never be allowed to project themselves in his judgment or the proceedings of the Court. All that may be said in the judgment about the character or credibility of a party or a witness must be well founded on the evidence in the case. None should be condemned unheard; no aspersion should be cast on the character of any person unless it is necessary to do so for the proper disposal of the matter before the Court and warranted by evidence, facts and circumstances of the case. These principles have been repeatedly pointed out in several decisions."
I am in respectful agreement with these observations.
5. There is not an iota of evidence in the case to show that D.W. 20 had anything to do with the publication. There is no suggestion in the cross-examination of D.W. 20 that the publication was made at his instance. What the learned Magistrate stated was:
"In feet, we find several information's which were exclusively within the knowledge of D.Ws. 10 and 20 have been incorporated in Exhibit P-2(a). This coupled with the non-disclosure of the name of the "own correspondent" amply justifies my above remark."
It has not been, stated as to what these information's were which were exclusively within the knowledge of D.Ws. 10 and 20. The facts of the case and the enquiries in the hospital about the death of the person were all matters known to several persons and there is no suggestion that such information's were known only to the petitioner and that the accused in the defamation case could have got the information only from D.W. 20. The learned Magistrate has relied purely on surmises in making these observations and I must say that the observations were thoroughly unjustifiable.
As stated already while on the one hand Courts are at liberty to discuss the conduct of the persons before them, either as parties or as witnesses, untrammelled by any consideration, on the other hand they are not permitted to travel beyond the record and are bound to exercise due restraint in the language employed by them. They should neither make any sweeping assertions as are not borne out by the evidence produced before them nor should they use language which is unduly harsh. I, therefore, hold that the remarks were uncalled for and unjustifiable and not warranted on the evidence in the case. It, therefore, follows that the observations contained in paragraph 32 of the judgment concerning the petitioner have to be expunged and it is ordered accordingly.