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2000 DIGILAW 158 (KER)

Nandakumaran v. State of Kerala

2000-03-12

Kum.A.Lekshmikutty

body2000
ORDER The petitioner was D.W.1 in the C.C.No.131 of 1992 of the Court of the Judicial Magistrate of First Class, Kunnamkulam. He is the Professor of Chemistry in the Kerala Agricultural University and a specialist in Analytical Chemistry and is working in the Nutrition Department. He instructs P.G. level students and is a member of the Advisory Board to P.G. Students as well he teaches food analysis. The petitioner had undergone training in the Analytical Laboratory at Thiruvanathapuram. In view of his expertise in his subject, he was summoned as a witness in C.C.No. 131 of 1992. C.C.No. 131 of 1992 was a prosecution against one V.M. Muhammed Ali under Sections 2(la), (b), 7(1) and 16(1)(a) and R. 5 of the Prevention of Food Adulteration Act. In the said case, the petitioner was summoned as a defence witness to tender his expert opinion with regard to chemical changes which would be undergone by' gingelly oil under certain circumstances. In the course of cross-examination, the petitioner was asked "without seeing the sample, can you say which factor has accelerated or precipitated the alleged Hydrolysis?". To this question, the petitioner tendered answer as " I can say by simply seeing Ext. P-11 (Report of C.F.L.)". As per the petitioner, this provoked the learned Magistrate to record the following remarks at para 12 (page 9) of the Judgment. "In cross-examination D.W.1 surprisingly gave an answer that without seeing the sample he can say that hydrolysis has taken place. This itself shows that he is not an impartial witness and he was hired by the defence." This petition is filed to expunge the said remarks made by the lower Court. Along with this petition, the petitioner has produced Annexure-A, copy of his deposition and Annexure-B the true copy of the Judgment in C.C.No. 131 of 1992. It is further submitted by the petitioner that apart from the above observation, certain other observations were also made which are factually incorrect. Those observations also are unwarranted. The learned Magistrate further observed as follows: "Admittedly he is teaching Chemistry in the college. That does not mean that he is the expert in food analysis". This observation also is not correct. As a matter of fact, the petitioner has stated even in his cross-examination that he is working in the Nutrition Department and was trained at the Analytical Lab, Thiruvanathapuram. That does not mean that he is the expert in food analysis". This observation also is not correct. As a matter of fact, the petitioner has stated even in his cross-examination that he is working in the Nutrition Department and was trained at the Analytical Lab, Thiruvanathapuram. Besides, he has specifically stated in his chief-examination itself that he is teaching Food Analysis. The said facts were not challenged in the cross-examination. The lower Court also observed that the evidence of the petitioner is against that of the authorities in the matter. This fact also is not correct. The petitioner has given clear answers to almost all the questions put to him. The answers given by the petitioner is authoritative. Hence the petitioner prays that the remarks made by the Court below against him may be expunged, so as to secure ends of justice, otherwise it will cause irreparable hardship and it will affect his reputation and existence. 2. Heard Counsel on both sides. 3. The only question to be considered is whether the adverse remarks made against the petitioner is liable to be expunged. The fact that the petitioner is a Professor of Chemistry in the Kerala Agricultural University and a specialist in Analytical Chemistry is not disputed by the respondent. The averments in the Memorandum of Crl. Miscellaneous Petition shows that he was cited as a defence witness in C.C.No. 131 of 1992 of the Court of the Judicial Magistrate of First Class, Kunnamkulam. The specific case of the petitioner is that some unwarranted observations were made by the lower Court against him. The petitioner is working in the Nutrition Department and he instructs P.G. level students and he is a member of the Advisory Board to P.G. Students as well. His specific case is that he is teaching Food Analysis and he had undergone training in the Analytical Laboratory at Thiruvananthapuram. He was cited as a witness in view of the fact that he is an expert in the subject. Annexure-B is the Judgment in C.C.No. 131 of 1992. It is seen from the Judgment that the lower Court has made certain adverse remarks against the petitioner. As per the learned Magistrate, the petitioner was not an impartial witness and according to him he was hired by the defence. Annexure-B is the Judgment in C.C.No. 131 of 1992. It is seen from the Judgment that the lower Court has made certain adverse remarks against the petitioner. As per the learned Magistrate, the petitioner was not an impartial witness and according to him he was hired by the defence. The fact that the petitioner is an expert in Chemical analysis and he is a specialist in Analytical Chemistry cannot be disputed. The observation of the lower Court shows that a question was put to the petitioner by the learned Public Prosecutor as follows: "Without seeing the sample can you say which factor has accelerated or precipitated the alleged hydrolysis?". To this question, he tendered answer as follows: "I can say by simply seeing Ext. P-11 (Report of C.F.L.)." This answer provoked the learned Magistrate to record the adverse remarks against the petitioner. It is submitted by the learned Counsel for the petitioner that these remarks were made by the learned Magistrate without giving him an opportunity to' explain his case. Being a Professor of Analytical Chemistry who is working in the Nutrition Department he can say which factor has accelerated or precipitated the hydrolysis on seeing the report of C.F.L. Even if the sample is seen, he cannot say with naked eye regarding the factor which accelerated the hydrolysis of the gingelly oil. The lower Court without understanding the impact of the answer made such a remark. The Supreme Court in the matter of 'K' a Judicial Officer 2000 (1) KLT SC 707 = 2001 AIR SCW 650 observed as follows: "The primary purpose of pronouncing a verdict is to dispose of the matter in controversy between the parties before it. A Judge is not expected to drift away from pronouncing upon the controversy, to sitting in Judgment over the conduct of the judicial and quasi judicial authorities whose decisions or orders are put in issue before him, and indulge into criticising and commenting thereon unless the conduct of an authority or subordinate functionary or anyone else than the parties comes of necessity under review and expression of opinion thereon going to the extent of commenting or criticising becomes necessary as a part of reasoning requisite for arriving at a conclusion necessary for deciding the main controversy or it becomes necessary to have animadverted thereon for the purpose of arriving at a decision on an issue involved in the litigation. This applies with added force when the Superior Court is hearing an appeal or revision against an order of a Subordinate Judicial Officer and feels inclined to animadvert on him." The lower Court forgot about its primary duty and had made certain unwarranted comments against a witness who is a dignifying personalities. Admittedly, before making such adverse remarks, no opportunity was given to the petitioner regarding the same. The remarks made by the lower Court would seriously affect the carrier and reputation of the petitioner. The petitioner being an expert it is well within his knowledge to speak about the factum which accelerated the hydrolysis of the gingelly oil on seeing the report of the C.F.L So, there is nothing wrong in the answer given by the petitioner to the question put to him. No one can be penalised without giving an opportunity of being heard. Admittedly no opportunity was given to the petitioner before making adverse remarks against him. The learned Magistrate without understanding the impact of the answer, made adverse remarks against the petitioner. In these circumstances, the adverse remarks made against the petitioner is only liable to be set aside and I do so. The petition is thus allowed.