G. Ramachandran Nair v. State of Kerala and others

## **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT:** ## **THE HONOURABLE MR. JUSTICE P.D.RAJAN** **TUESDAY, THE 24TH DAY OF JUNE 2014/3RD ASHADHA, 1936** ## **Crl.MC.No. 122 of 2006 (A)** ## **-------------------------------------** **[C.C.NO. 5/2000 OF THE COURT OF THE SPECIAL JUDGE (SPE/CBI) - I, ERNAKULAM]** **.........** ## **PETITIONER:** - **-------------------** **G. RAMACHANDRAN NAIR, GENERAL MANAGER (HRD), COCHIN SHIPYARD LTD., COCHIN, RESIDING AT `AMBIKA', K.P. VALLON ROAD, KADAVANTHARA, KOCHI-20.** ## **BY ADV. SRI.PIRAPPANCODE V.S.SUDHIR.** ## **RESPONDENTS:** ## **-----------------------** **1. STATE OF KERALA, REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA SUPERINTENDENT OF POLICE, CBI/SPE, COCHIN.** **2. SUPERINTENDENT OF POLICE, C.B.I, SPE, COCHIN.** ## ***ADDL.R.3. IMPLEADED:** **3. COCHIN SHIPYARD LIMITED, (A GOVERNMENT OF INDIA ENTERPRISE), REGISTERED OFFICE, ADMINISTRATIVE BUILDING, PERUMANOOR.P.O., POST BAG NO.1653, KOCHI-682 015.** ***ADDL.R.3. IS IMPLEADED AS PER ORDER DATED 24/06/2014 IN CRL.M.A. NO.4650/2006.** **Prv.** **CRL.M.C. NO.122/2006 -A:** ## ****ADDL.R.4. IMPLEADED:** **4. UNION OF INDIA, REPRESENTED BY THE SECRETARY TO - THE GOVERNMENT OF INDIA, MINISTRY OF SHIPPING, ROAD TRANSPORT & HIGHWAYS, DEPARTMENT OF SHIPPING, TRANSPORT BHAVAN, 1, PARLIAMENT STREET, NEW DELHI - 110 001.** - ****ADDL.R.4. IS IMPLEADED AS PER ORDER DATED 24/06/2014 IN CRL.M.A. NO.4861/2006.** **R1 BY PUBLIC PROSECUTOR SMT. MADHUBEN.M, R2 BY ADV. SRI.P.CHANDRASEKHARA PILLAI, C.B.I, ADDL.R3 & R4 BY SRI. T.P.M.IBRAHIM KHAN, SR.PANEL COUNSEL, GOVT. OF INDIA.** **THIS CRIMINAL MISC. CASE HAVING BEEN FINALLY HEARD ON 24-06-2014, THE COURT ON THE SAME DAY PASSED THE FOLLOWING:** **Prv.** ## **CRL.M.C. NO.122/2006 - A:** ## **APPENDIX** ## **PETITIONER'S ANNEXURE:** **ANNEXURE - I: TRUE COPY OF THE JUDGMENT IN C.C. NO.5/2000 OF THE SPECIAL JUDGE (SPE/CBI)-I, ERNAKULAM.** **RESPONDENTS' ANNEXURE:** **ANNEXURE -1: A PHOTOSTAT COPY OF THE LETTER NO.FIN/ESTT/GENL/2006-07 DATED 27/02/2007 ISSUED BY THE COCHIN SHIPYARD LIMITED ADDRESSED TO THE RESPONDENT.** **//TRUE COPY//** **P.A. TO JUDGE.** **Prv.** ## **P.D. RAJAN, J.** **- - - - - - - - - - - - - - - - - - - - - - - Crl.M.C.No.122 of 2006** **- - - - - - - - - - - - - - - - - - - - - - - Dated this the 24[th] day of June, 2014** ## **O R D E R** This petition is filed under Section 482 of the Cr.P.C. to quash the adverse remarks in the judgment in C.C. No.5/2000 of the Special Judge (SPE/CBI)-I, Ernakulam which was charge sheeted by the Superintendent of Police, CBI, SPE, Cochin under Sections 120B IPC r/w Section 13 (2) and r/w Section 13(1) (d) (iii) of the Prevention of Corruption Act, 1988. Accused Nos.1 and 2 are the officials of the Cochin Shipyard Ltd. The petitioner herein was PW17 in C.C.No.5/2000. Without hearing him or without giving an opportunity of being heard, made adverse remarks and observations against him in the judgment. The learned Judge also directed to initiate disciplinary action against him. The observations made by the learned Judge were totally uncalled for and there was no material before the court to make such observations. If those observations are not removed from Annexure-I judgment, it will cause Crl.M.C.No.122 of 2006 **-2-** irreparable injury to him. Hence the petition. 2. The prosecution allegation in the above case was that on 30.03.1986 M/s. Shipping Corporation of India, Bombay entered into an agreement with the Cochin Shipyard Ltd., Cochin for building a single hull tanker at a cost of Rs.37.10 crores and advanced a sum of Rs.5 crores to Cochin Shipyard Ltd. On 26.11.1991 Cochin Shipyard Ltd. issued a purchase order for the supply of 625 MTs of grade 'B' and 'D' steel plates for a total value of 1,21,888.00 Pounds. On 13.02.1992, the Minerals and Metals Trade Corporation, New Delhi further placed order with the third accused for the supply of 3096 MTs of 'A' steel plates. The cost price of 'A' grade plate was 198 pounds per MT and the cost price of 'B' grade plate was 190 pounds per MT and that of 'D' grade was 197 pounds per MT, which conform to the quality of shipbuilding steel plates and as per the specification of the Lloyd's Register of Shipping and Indian Register of Shipping for the grade 'B' and 'D' steel plates and as per the Bureau Veritas and IRS specification for Crl.M.C.No.122 of 2006 **-3-** grade 'A' steel plates. On 29.04.1992 the third accused shipped a total quantity of 3535 MTs of steel plates of grade 'A', 'B' and 'D' categories to Cochin by Indian Merchant Vessel as per the terms of the contract and on inspection it was found that those steel plates were rust spotted i.e. having rusty surface. 3. On 10.07.1992 the third accused company was informed by the then General Manager (Finance) of Cochin Shipyard Ltd. that the steel plates do not comply with the quality standard and have to be totally rejected. Instead of rejecting the unsuitable and substandard plates, the first and second accused commenced commercial settlement with the third accused. In the circumstances, the CBI registered the above case against the accused. Prosecution examined PWs1 to PW20 and marked Exts.P1 to P48. The trial court convicted the first and second accused under Section 120 B IPC r/w Section 13(2) r/w Section 13 (1) (d) (iii) of the Prevention of Corruption Act, 1988. At the time of passing the sentence, the lower court observed thus: Crl.M.C.No.122 of 2006 **-4-** “In the matter of A3 it has to be considered that the British Company with whom CSL had long standing business relationships, was earlier practicing deception towards CSI and they continued it with the knowledge that the Union of India would be put to sever and heavy financial loss. Even though it will not compensate the loss sustained to the Union of India in this regard, I am of the view that a fine of Rs.5,00,000/- can be imposed as sentence on BSE who is the third accused in this case. A3 being a company it is not possible for this court to impose any sentence of imprisonment. In the result, A3 is sentenced to pay a fine of Rs.5,00,000/- for the offence under Section 120 B IPC r/w Section 13 (2) r/w Section 13 (1) (d) (iii) of the Prevention of Corruption Act, 1988. It is made clear that all the substantive sentence of imprisonments imposed on A1 and A2, shall run concurrently. The fine amount, if paid by the third accused, shall be given to the Union of India. Before parting with this case this court observes the serious lapse on the part of PW17 who is still working as General Manager in the Cochin Shipyard Limited. He turned hostile to the prosecution and he was deliberately aiding the accused in box. He deliberately deviated and retracted from his statement given before PW20 who investigated this case properly. The acts of PW17 are nothing but detrimental and adverse to the interest of the Cochin Shipyard Limited wherein still he is working in the higher ups. This conduct of PW17 is subjected to scrutiny, according to this court. The matter has to be enquired into by the Ministry of Shipping and Surface Transport. A copy of this judgment along with the copy of the deposition of PW 17 shall be forwarded to the Secretary, Ministry of Shipping and Surface Transport, Union of India, New Delhi through the Hon'ble High Court of Kerala.” 4. The learned counsel appearing for the petitioner contended that there is violation of the principle of natural justice. The petitioner was PW17 in the above case. He Crl.M.C.No.122 of 2006 **-5-** never gave a statement to the investigating officer that the steel plates were substandard. PW20 also did not give such a statement. The lower court misconstrued the statement and have passed disparaging remarks against him. On the basis of the direction, departmental enquiry was ordered. Hence, without giving an opportunity for explaining his part, the observations made therein are unsustainable. The learned counsel for the petitioner relied on the decision reported in **Jage Ram v. Hans Raj** [AIR 1972 SC 1140], **Niranjan Patnaik v. Sashibhusan Kar** [(1986) 2 SCC 569], **Manish Dixit v. State of Rajasthan** [(2001) 1 SCC 596] and **D.K. Shrivastava v. State of Madhya Pradesh** [(2010) 13 SCC 545] 5. The learned Special Prosecutor appearing for the CBI contended that the trial judge did not over step even in a minor part of the jurisdiction and he only analyzed the evidentiary value of the deposition given by the prosecution witness. He made such observation with full bonafides. There is a reference with regard to the general conduct of Crl.M.C.No.122 of 2006 **-6-** PW17 which is not for destroying his official career. This will give a good impression among the department with regard to the smooth functioning of the institution alone. The inherent power need not be invoked in such type of observations. 6. The petitioner is PW17 in C.C. No.5/2000 of the Special Judge (SPE/CBI)-I, Ernakulam. The allegation against the accused is with regard to the purchase of lower quality of steel plates from BSE and thereby causing huge financial loss to the Cochin Shipyard Ltd. Detailed probe was conducted by the CBI and they submitted a final report. During trial, the evidence of PW 17 was considered by the learned Judge in para 55 to 57. During 1992 to July, 1996 he was working as AGM (Materials) in Cochin Shipyard Ltd. Thereafter he was promoted as DGM in the year 2000. When he was AGM (Materials) he was in charge of General Stores and Steel Yard of the Shipyard. According to him, on 08.01.1993 Ext.P11 (p) letter was issued by him to the British Steel Laison Services Bombay. According to him, Crl.M.C.No.122 of 2006 **-7-** BSE had a claim that 7% thickness reduction was possible. But he rejected that claim and said that it was not possible. In Ext.P11(p) there was extensive pitting in the steel plates and 50% of the plates become useable after grinding and the remaining could not be put to use for the purpose for which they were supplied. In the circumstances, PW17 asked the BSE to replace those steel plates urgently for the requirement of CSL. In P11(q) dated 10.8.1993 which was also issued to PW17 by MMTC, it was pointed out that a number of plates received from BSE were in rusted condition. 7. When PW17 was asked whether the imported steel plates from British Steel were substandard, he answered that it was rusted/rusty. Again he was asked whether there was any harm in totally rejecting the steel plates as it was rusted or pitted, he answered as follows:“we cannot reject the entire load only because of the fact that some of the plates were rusted.” In the circumstances, PW17 was declared hostile when cross examined. When he Crl.M.C.No.122 of 2006 **-8-** was asked whether he had intimated MMTC that BSE have imported substandard steel plates, he answered that he remembers that he had used the term 'rusted/rusty' and that he does not remember whether he had used the term 'substandard'. It is true that a statement given under Section 161 of the Cr.P.C. can be used for the limited purpose mentioned under Section 162 of the Cr.P.C. and nothing more than that. While analysing the evidence of PW17 in paragraph 57, the learned Judge observed that “on going through the deposition of PW17, it is evident that he was aiding A1 and A2 who were his superiors in office. It is strange to note that even now PW17 is working in CSL as General Manager (Human Resources)”. But in crossexamination of PW17, the learned Public Prosecutor appearing for CBI has not put a suggestive question to the effect that he was aiding A1 and A2. Without putting that question to the witness, the observations made by the learned Judge is improper. 8. The Apex Court in **Dr. Raghubir Saran v. State** Crl.M.C.No.122 of 2006 **-9-** ## **of Bihar** [AIR 1964 SC 1], held as follows: “Whatever may be the degree of impact, the result of expunging remarks from a judgment is that it derogates from its finality. A judgment of a lower Court may be wrong; it may even be perverse. The proper way to attack that judgment is by bringing it under the scrutiny of the superior Court and getting the judgment of the lower Court judicially corrected. The inherent power that the High Court possesses is, in proper cases, even though no appeal or revision may be preferred to the High Court, to judicially correct the observations of the lower Court by pointing out that the observations made by the Magistrate were not justified or were without any foundation or were wholly wrong or improper. The contrary view infringes the fundamental principle of jurisprudence that a judgment made by a Court, however inferior it may be in the hierarchy, is final and it can only be modified in the manner prescribed by the law governing such procedure. AIR 1954 Bom 65 (66) (FB), Approved. Evey judicial officer must be free to express his mind in the matter of the appreciation of evidence before him. The phraseology used by a particular Judge depends upon his inherent reaction to falsehood, his comparative command of the English language and his felicity of expression. There is nothing more deleterious to the discharge of judicial functions than to create in the mind of a Judge that he should conform to a particular pattern which may, or may not be, to the liking of the appellate Court. Sometimes he may overstep the mark. When public interests conflict, the lesser should yield to the larger one. An unmerited and undeserved insult to a witness may have to be tolerated in the general interests of preserving the independence of the judiciary. Even so, a duty is cast upon the judicial officer not to deflect himself from the even course of justice by making disparaging and undeserving remarks on persons that appear before him as witnesses or otherwise. Moderation in expression lends dignity to his office and imparts greater respect for judiciary. But occasions do arise when a particular Judge, without any justification, may cast aspersions on a witness or any other person not before Crl.M.C.No.122 of 2006 **-10-** him affecting the character of such witness or person. Such remarks may affect the reputation or even the career of such person. In such a case the appellate Court in a suitable case may judicially correct the observations of the lower Court by pointing out that the observations made by that Court were not justified or were without any foundation or were wholly wrong or improper. This can be done under its inherent power preserved under S.561A of the Code of Criminal Procedure. But that power must be exercised only in exceptional cases where the interest of the party concerned would irrevocably suffer.” ## 9. The Apex Court in **Manish Dixit v. State of Rajasthan [(2001) 1 SCC 596]** , it was held as follows: “This takes us to the appeal filed by one Devendra Kumar Sharma (who was examined in this case as prosecution witness PW 30) complaining of the observations made against him by the trial court as well as the High Court. When he was examined in court he was holding the post of Sub Registrar, Jaipur. On 9.6.1994 he was holding the post of Tahsildar, Jaipur (Perhaps in that capacity he was ex officio Executive Magistrate also.) His services were requisitioned by the investigating officer for conducting the test identification of jewelleries recovered in this case. When he was examined as prosecution witness for speaking to the said test identification, the Public Prosecutor during the examination-in-chief elicited a few facts from him pertaining to those aspects and the documents prepared in connection therewith were marked through him. When he was cross-examined he was asked about the seal impression found on the packets which contained the recovered jewelleries. He answered that he did not compare the impression with any other seal. He was then confronted with the memo of seizure (Ext.P28) and he was asked whether he had recorded the fact therein truly. He answered thus:”It might have been correctly recorded in that memo or I may not be able to recollect.” After the cross-examination was over the Pubic Prosecutor did not put up a single question in re-examination. This was Crl.M.C.No.122 of 2006 **-11-** either because he did not find any need to elicit any explanation from the witness or because the Pubic Prosecutor was inattentive to the implications regarding the answers elicited by the cross-examiner from that witness.” The petitioner herein is a witness. When he gave statement to the police he never stated the word 'substandard' that was deposed before court. Therefore, before making any disparaging remarks the learned Judge ought to have given an opportunity for him to explain the circumstance. It is true that when any remarks are made by any court against a person particularly a witness the seriousness of the remarks and the consequences on the future career of the person concerned are to be considered. Normally 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 of a trial. Otherwise the offending remarks would be in violation of the principles of natural justice. The trial judge did not consider the catena of the decisions rendered by this Court and the Apex Court before making the above Crl.M.C.No.122 of 2006 **-12-** remarks. Therefore, the observations made by the learned Judge that “he turned hostile to the prosecution and he was deliberately aiding the accused in box. The acts of PW17 are nothing but detrimental and adverse to the interest of the Cochin Shipyard Limited wherein still he is working in the higher ups. This conduct of PW17 is subjected to scrutiny, according to this court. The matter has to be enquired into by the Ministry of Shipping and Surface Transport” are hereby quashed. This petition is partly allowed. Sd/- **P.D. RAJAN, JUDGE** //True copy// P.A. TO JUDGE shg/