Dr. H.V. Phopale vs State of Maharashtra

V.A. Naik, J.—This is an application made by Dr. H. V. Phopale, Superintendent of the St. George''s Hospital, praying that certain observations made by the Chief Presidency Magistrate in his order dated December 8, 1964, be expunged. In Criminal Case No. 74/P of 1964 the evidence of Dr. Bhakta, who had conducted post-mortem examination, was considered necessary by the prosecution. Dr. Bhakta is attached to the St. George''s Hospital as an Honorary Surgeon. According to the usual practice, a letter of request was sent to the Superintendent as the head of the hospital requesting him that Dr. Bhakta should be asked to attend the Court on November 17, 1964. Dr. Bhakta did not appear on that date. So on November 17, 1964, another letter of request was sent fixing the date as on November 24, 1964. On this date also Dr. Bhakta did not appear. A third letter is alleged to have been sent fixing the date as on November 30, 1964. There is some doubt as to whether that letter ever reached the St. George''s Hospital. Dr. Bhakta did not appear on the date fixed, i.e. on 30th. It, however, appears from the Rojnama that another doctor was present. On the 30th the learned Magistrate passed an order directing that a personal summons should be issued to Dr. Bhakta. The summons directed that the case was fixed on December 8, 1964 and that the doctor should appear on that date. It does not appear from the summons, the original of which was showd to us, that a copy was sent to Dr. Phopale, the head of the hospital. Unfortunately, Dr. Bhakta did not appear even on the 8th notwithstanding that the summons was personally served on him. The Chief Presidency Magistrate, therefore, sent Sub-Inspector Baviskar to approach the Superintendent and to apprise him of what was happening. Baviskar met Dr. Phopale and made a report to the Chief Presidency Magistrate. It appears that he made an oral report to the Chief Presidency Magistrate. In any case there is no written report on the record of the case. The purport of the report, as given by the Magistrate in his order, is as follows:

The Officer reports to me that he interviewed the Superintendent Mr. H. V. Phopale and brought to his notice that doctors of his hospital are not attending Courts when required with the result that cases have to be adjourned. Besides this case there is another case on my board to-day (case No. 283 /P) which had to be adjourned twice before for the absence of the doctor from the same hospital. In that case also at the last hearing as the doctor was absent twice, a summons was ordered to be served on the Superintendent to depute to Court the doctor concerned.. No doctor has come to Court in that case to-day. S. I. Baviskar reports that he brought both these cases to the notice of the Superintendent of the Hospital and the Superintendent stated that if the doctors of his hospital disobey Court orders, the Court may deal with them by issuing warrants.

The learned Magistrate apparently was upset by the remark that if a doctor of the hospital disobeys the orders of the Court the Court may issue a warrant against a delinquent. The Magistrate, therefore, observes:

The Superintendent seems to have failed to realise that the Courts do not need his permission to exercise their powers under the Law, but the Officer under the Direction of the Court only brought to his notice what appears to be a grave administrative dislocation and inefficiency at this public institution where the process of the Courts do not seem to be complied with, so that the Head of the institution may administratively look into the matter and ensure better arrangements in the matter at the hospitals in the future.

This is the remark to which specific objection has been taken by the petitioner and the petitioner asks that the whole of this passage should be expunged.

Proceeding with the narration of the facts, the Magistrate then goes on to point out that these are not the only two cases in which the doctors at the St. George''s Hospital have disrespected the Court''s summons and letters of request. To quote his own words:

I have been informed by the Presidency Magistrates at this Centre who have to deal with doctors of this hospital that cases have to be adjourned several times on account of the absence of the doctors and this dislocates the work of the Court and causes great public inconvenience. I am informed by S. I. Baviskar that his enquiries at the hospital to-day showed that the summons on the Superintendent in case No. 283/P served on 7-12-1964 was still lying unattended in the basket of a Clerk named Patil. I am afraid this indifference at the hospital in respect of a Court summons discreditably reflects on the administration of the institution as such.

The last sentence again is a subject-matter of grievance and the petitioner has requested that this sentence also should be expunged. The Magistrate has then suggested that the institution should devise proper and efficient methods of attending to the process of the Courts which require the production of records of the hospital and the deputing of the doctor concerned to give evidence in Courts. He then proceeded to pass an order directing to issue a bailable warrant against Dr. Bhakta. Finally the Magistrate has directed that the copy of the order should be forwarded to the Surgeon General of Maharashtra, for information.

Before dealing with the points raised by Mr. Adik in support of the prayer for expunging the impugned remarks, it is necessary to state a few more facts. After the issuing of the warrant Dr. Bhakta appeared before the Court on December 10, 1964. He explained that he did not secure case papers at the office on December 8, 1964 and that is why he was unable to attend the Court.

He further stated that he approached the R.M.O. as also the Superintendent and both of them directed him to go to the Clerk. When approached, the Clerk stated that the papers were missing. On this the learned Magistrate passed a further order stating that the hospital authorities have taken no step to find the record and hand it over to Dr. Bhakta to enable him to give evidence. He has then referred to Dr. Bhakta''s complaint, viz. when he approached the Superintendent, he told him to approach the Clerk and the Clerk in turn told him that the papers were missing. The Magistrate then observes:

The hospital through Dr. Bhakta neither reports that papers are lost nor asks for time to search. Having regard to all these facts, I find that if the Superintendent had ordered a proper search of the papers, they would have been produced in Court by now. It appears nobody in the hospital is seriously bothering himself to find the papers required in Court in a serious case. I refrain from commenting on the administrative arrangements at the hospital There is another case on board to-day in which there is the same state of affairs. Under the circumstances, it seems that the papers will not be looked for diligently and seriously unless the Superintendent himself is ordered to produce them in Court. I order personal summons on the Superintendent of the hospital to produce in Court the records of this case.

Mr. Adik contended that the remarks made by the learned Magistrate were uncalled for and thoroughly unbalanced and have been made without due regard to the normal procedure, viz. of giving a hearing to the party against whom these remarks have been directed. He then went on to point out that the learned Magistrate has allowed his mind to be prejudiced by the report of Mr. Baviskar who told the Chief Presidency Magistrate that Dr. Phopale, the Superintendent, told him that the Court should issue a warrant against a delinquent officer of the hospital. He referred to the decision of the Supreme Court in State of Uttar Pradesh v. Mohd. Nairn AIR 1064 S.C. 703 and argued that the observations applied on all fours to the present case. In that case the Supreme Court after discussing the powers of the High Court for expunging the objectionable remarks under its inherent jurisdiction conferred by section 501A of the Criminal Procedure Code stated (p. 707):

....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 anybody, 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, fair-play 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.

Dealing with the last point, viz. whether the observations were necessary for the decision of the case, it may be noted that Dr. Bhakta on whom the summons was served did not attend the Court on the date fixed. All that the Magistrate then need do was to issue a warrant against him and that is exactly what he has done. This is the only effective order which the Magistrate could pass in the circumstances of the case. If he wanted any further enquiry into the conduct of Dr. Bhakta or even of the Superintendent of the Hospital, he should have instituted a separate enquiry which had nothing to do with the case on hand. It is thus clear that the observations made by the learned Magistrate had no relevance to the decision on the point which the Magistrate was deciding, viz. whether the conduct of Dr. Bhakta was so contemptuous as to warrant the issuing of warrant bailable or non-bailable.

A significant feature of this case is that the Magistrate has wholly acted upon the report of a Police Officer, viz. Sub-Inspector Baviskar. It is difficult to comprehend the precise nature of the instructions given to Baviskar. Some observations seem to suggest that Sub-Inspector Baviskar was instructed to report to the Superintendent of the Hospital about the fact that summons sent by Court in two cases were not being attended to and in particular to see that Dr. Bhakta appeared in Court in compliance with the Court Summons. If that is so, it would appear from the observations made by the Magistrate that Baviskar exceeded the mandate inasmuch as after interviewing the Superintendent Baviskar brought to his notice that doctors in his hospital in general were not attending the Courts when required. That shows that Baviskar made a sort of roving inquiry into the affairs of the hospital with reference to the appearance or non-appearance of the doctors in the hospital. We feel that Baviskar had no business to make a sort of fishing inquiry with Dr. Phopale. Dr. Phopale would have been justified in refusing to answer questions put to him by Baviskar. From certain other observations to which reference would be made hereinafter, it appears that Baviskar was authorised to bring to the notice of Dr. Phopale the inefficiency prevailing in the administration, in that the summonses remained unattended in the hospital. Whatever that may be after all what Dr. Phopale told Baviskar was that if any doctor was found to be disobeying the orders of the Court, the Court could issue a a warrant against, him. As pointed out above a personal summons was issued to Dr. Bhakta. Dr. Phopale was not aware that such a summons was issued. No copy was endorsed to Dr. Phopale as the Superintendent of the Hospital. We do not know what words were exchanged or what took place between Baviskar on one side and Dr. Phopale on the other. It is natural that Dr. Phopale resented the intervention of Baviskar into the affairs of his administration. He would therefore have been justified in using strong language towards Baviskar. Be that as it may, we do not think that there was anything objectionable in what actually fell from the lips of Dr Phopale. Unfortunately, however, that particular observation seems to have angered the Magistrate as is clear from the following sentence:

The Superintendent seems to have failed to realise that the Courts do not need his permission to exercise their powers under the law, but the Officer under the direction of the Court only brought to his notice what appears to be a grave administrative dislocation and inefficiency at this public institution where the process of the Courts do not seem to be complied with

There was no question of Dr. Phopale advising the learned Magistrate as to how he should exercise his powers under the law. All that he pointed out to Baviskar was that he was powerless in the matter since the summons was issued in the personal name of Dr. Bhakta and since he did not know anything in the matter, and, therefore, he suggested that a warrant may be issued. The fact that the Magistrate was carried off his feet is clear from the observations, viz.

but the officer under the direction of the Court only brought to his notice what appears to be a grave administrative dislocation and inefficiency at this public institution, where the process of the Courts do not seem to be complied with.

The sentence is somewhat complex. The sentence can be broken up into three parts. (1) The Officer was directed by the Court to bring to the notice of the Superintendent certain lapses. (2) The lapses were that there appeared to be a grave administrative dislocation and inefficiency. (3) That this kind of dislocation and inefficiency was taking place in a public institution where the process of the Courts were not complied with. The first part of the sentence suggests that Baviskar was instructed to bring to the notice of the Superintendent general lapses on the part of the doctors working in the hospital. This will be clear if reference is made to the sentence appearing earlier.

As the conduct of doctors attached to St. George''s Hospital in frequently neglecting the process of the Courts is dislocating the work of the Courts and causing public inconvenience and to give an opportunity to hospital authorities to send the doctor concerned to Court immediately, I directed S. I. Baviskar to proceed forthwith and report this state of affairs to the Superintendent of the St. George''s Hospital and cause the appearance of Dr. Bhakta in Court in compliance of the Court summons.

The work entrusted to Baviskar appears to be of a complex nature. Firstly, he should bring to the notice of Dr. Phopale that Dr. Rhakta had not appeared in pursuance of the summons and to see that his presence was secured. Secondly, Baviskar was charged with the mission of reporting to the Superintendent relating to the frequent neglect of process of the Courts by the subordinate doctors which resulted in dislocating the working of the Court and causing public inconvenience. The learned Magistrate has in fact stated that his object in sending Baviskar was to give an opportunity to the Hospital authorities to send the doctor concerned to the Court immediately. If that was the ultimate objective, there was no point in charging Baviskar with the onerous responsibility of reporting to Dr. Phopale about the general conduct of the doctors serving under him. In fact, according to the remarks of the learned Magistrate, Baviskar brought to the notice of Dr. Phopale that the doctors of, his Hospital were not attending the Court when required. If that was the general purpose Baviskar should be the last person to be deputed to perform it. The learned Magistrate should have forwarded the report through the regular channel so that an enquiry was held by proper authorities and matters set right. The most objectionable part of the remarks is the one which relates to "grave administrative dislocation and inefficiency at this public institution." These remarks are sweeping and general and without any relation to the purpose on hand. The language used by the learned Magistrate is unduly harsh and condemnatory.

As a matter of fact, it has been brought to our notice that the processes of the Courts were sent to the hospital authorities short time before the actual date of appearance. For instance the first letter of request which was sent on November 10, 1964, was received in the Hospital on 16th and the date fixed was 17th. There is a summons which was issued to a doctor through the Superintendent which was actually received by Patil Clerk on December 7, 1964, at 12 noon which itself was the date of hearing and the hearing was to commence at 11 a. m. The R. M. O. received the summons at 1 p. m. Mr. Adik contended that had an opportunity been given to the Superintendent, he would have shown a number of such instances. In this connection he drew our attention to the complaint made by Dr. Phopale to the High Court and the fact that the High Court was pleased to issue a circular after making due enquiry. The circular is dated June 23, 1966 and some part of it is worth citation:

It has been brought to the notice of the Honourab''e the Chief Justice and Judges that often times summons issued by Courts to medical officers are served on the medical officers so late as to practically leave no time to the medical officers concerned to make arrangements for their attendance in the Court and also to collect and get themselves acquainted with the papers required in the case. There have been instances where such summonses have been served on medical officers a few hours before the time they were required to attend the Court. This naturally causes a great deal of inconvenience to the medical officers. Often times it is not possible for them to leave hospital without making alternative arrangements and also it is not possible for them to lay their hand? on the required papers immediately....

Their Lordships are of the opinion that the inconvenience caused to the medical officers by such late summoning and delays should be completely eliminated and are, therefore, pleased to direct that summons should be issued to the medical officers and also got served on them sufficiently in advance so as to give them enough time to prepare for the journey and to make alternative arrangements for the working of the hospitals during their absence and to take out and study the relevant papers.

This shows that the fault as well may lie with the staff entrusted with the service of process. In any case it is quite clear that no pronouncement can be made ex cathedra and without giving a proper opportunity of hearing. We are told that the strong observations made by the learned Magistrate appeared in some daily papers in banner headlines. This would lead to the impression that there was grave administrative dislocation and inefficiency in the St. George''s Hospital. Such impression is bound to cause damage to the reputation of the hospital. The hospital is a public utility concern and a common member of the public may be required to go to the hospital for treatment or examination. If a patient carries the impression that the administration in the hospital is inefficient or that there is grave dislocation, he would be deterred from going and thus in effect be deprived of the opportunity of taking advantage of the hospital. Before making general observations reflecting upon the administration of a responsible hospital, the learned Magistrate should have thought of the repercussions of the observations and considered in the first place whether in the circumstances it was necessary to make such observations and in the second place, whether it was right for him to do so without hearing the person concerned and finally to consider the effect on the mind of the authorities. The learned Magistrate in making these observations has not considered any one of the three tests laid down by the Supreme Court. Obviously, the party whose conduct has been the subject-matter of the observations, was not before him and had no proper opportunity of explaining or defending himself. Still more obviously, there was no evidence on record bearing on that conduct which justified those remarks. Equally clearly the observations were not necessary for the decision of the case as an integral part of the same. It need not be emphasised too strongly that restraint is the essence of the judicial process. The Judges or Magistrates must try to inculcate self-discipline upon themselves and not to allow themselves to be carried off their feet into passing sweeping remarks. We feel sorry that such an experienced Magistrate as the Chief Presidency Magistrate should have fallen into a lapse in ignoring these well settled principles of justice and fair-play.

Before concluding, we must refer to the fact that the application has been made after a lapse of over a year from the date of the order. Unfortunately, the copy of the order was not sent to the petitioner himself. He may have learnt about it through his superiors, viz. Surgeon General. In para. 6 of his petition, the petitioner has stated that he made several applications to the Surgeon General, Government of Maharashtra, to take the necessary steps to get the remarks expunged. For reasons best known to the authorities neither the Surgeon General nor the State Government has chosen to make an application. This explains the delay in filing this application.

We, therefore, direct that the observations, as set out at paras. 2 and 3 of the petition, made by the. learned Chief Presidency Magistrate should be expunged. No order as to costs.