TaxTMI 
TaxTMI 
1986 (4) TMI 357
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....e), 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 ₹ 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 ₹ 1,000 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 ₹ 2,000 per month in April 1979 and this led to Gopi Nath Mohanty laying information (Exhibit I) before the....
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....ed 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 responde....
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.... 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. 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 f....
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....ohanty for having given bribes of ₹ 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 ₹ 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 his Manager (P.W.2) with regard to willing pa....
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....e or by way of donation. 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 ₹ 1,000 to ₹ 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 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 ....
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....r 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 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 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 exp....