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PETITIONER: SHIVAJIRAO NILANGEKAR PATIL

       Vs.

RESPONDENT: DR. MAHESH MADHAV GOSAVI & ORS. AND VICE VERSA

DATE OF JUDGMENT09/12/1986

BENCH: MUKHARJI, SABYASACHI (J) BENCH: MUKHARJI, SABYASACHI (J) PATHAK, R.S. NATRAJAN, S. (J)

CITATION:  1987 AIR  294            1987 SCR  (1) 458  1987 SCC  (1) 227        JT 1986  1071  1986 SCALE  (2)977

ACT:     Evidence-- Admission  of  additional ’ evidence,   prin- ciple  of-Admissibility of evidence as to "similar fact  "-- Affidavits evidence--Value of..     Code   of  Civil  Procedure,  Order  XIX  Rule  3   Mala fides--Allegation    of   mala   fides   against   men    in power--Courts’ duty to view such allegations vis-avis purity in public life, explained.     Post-graduate medical examination in  Maharashtra--Alle- gation  of manipulation in the grade sheets of M.D.  (Gynae) examination to clear the candidate, a daughter of the  Chief Minister  of Maharashtra--Adverse remarks against the  Chief Minister,  whether  justified as a finding off act or  as  a comment  based on no evidence--Judicial  pronouncements  and duty of the Judges.

HEADNOTE:     Dr.  Mahesh  Madhay Gosavi appellant in CA  4453/86  and respondent in CA 4452/86 was a failed candidate at the  M.D. examination in the speciality of Gynaecology and  Obstetrics held in the year 1985. He filed a writ petition under  Arti- cle  226 of the Constitution of India in the High  Court  of Bombay challenging the results of the M.D. examination  held in  November’ 85. He alleged that favouritism was  shown  by one Dr. Rawal who went to the extent of tampering with grade sheets  of the examinees so as to clear unsuccessful  candi- dates  and in particular Smt. Chandrakala Patil daughter  of the  Chief Minister of Maharashtra appellant in  CA  4452/86 and respondent in cross appeal CA 4453/86. In support of the writ  petition alleging how the malpractice took  place,  he filed  an affidavit (hearsay evidence) of one  Dr.  Manikant Mishra,  who  is supposed to have heard certain  talks  that took  place between Dr. Rawal and Smt. Chandrakala Patil  at Dr.  Rawals’ Chambers and that what the deponent heard  came to  be proved by the M.D. (Gynae) results in which  one  Dr. Smita Thakkar and Smt. Chandrakala Patil who could not clear the  said examination thrice were shown to have  passed.  It was alleged that the tampering of the grade sheets were done by Dr. Rawal at the behest of the appellant in C.A. 4452/86. The  said allegations were refuted by the appellant  Shivaji

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Rao  Patil, Smt. Chandrakala Patil, his daughter, Dr.  Rawal and another Dr. Shah on oath by filing their affidavits. The 459 respondent,  though  he had verified his petition,  did  not disclose  the so called reliable source of  information  de- rived by him. (about the allegations made against the appel- lant & others.     The learned Single Judge held: (i) that the evidence  of Respondent  Madhav  Gosavi  as well as of  Dr.  Mishra  were unsatisfactory  and unreliable: (ii) that it was  impossible to  place any reliance on the evidence of Dr. Mishra  as  it was  not known how he came to contact Dr. Gosavi or  why  he did  not  choose to file affidavit till 28.2.1986  when  the appellant Patil had already filed his affidavit on  26.1.86; (iii)  that the allegation and the averments made  in  para- graph 14 of the writ petition were wholly unsatisfactory and insufficient  because  the  Respondent--petitioner  had  not disclosed  from  whom he derived them; (iv) that  there  was tampering  with grade sheets of Respondents 4 to 15  by  Dr. Rawal and (v) that in the facts and circumstances of this it could reasonably be inferred that the alteration was done at the  behest of the appellant in CA 4452/86 and her  daughter Chandrakala.  This was because Dr. Rawal was an  experienced examiner, not young or immature and a person like him  would not proceed to do a criminal act and tamper with the  record of  the examination on his own with a view merely to  please the people in power. The risk involved in what Dr. Rawal had done was so enormous that it was difficult to conceive  that he did it on his own. Accordingly he allowed the writ  peti- tion,  passed  some  structures against Dr.  Rawal  and  the appellant  in CA 4452/86 and gave certain  directions  about examination  of 12 other candidates whose results were  also affected by the conduct of Dr. Rawal.     An  application made before the Judge for adducing  cer- tain  additional evidence was rejected. After  the  judgment the  Vice  Chancellor and the Chief Minister  resigned  from their posts.     Three appeals, No. 214/86 by Dr. Rawal No. 215/86 by Dr. Chaodrakala  Patil and No. 216/86 by the  appellant  Shivaji Rao Patil, were heard and disposed of by the Division  Bench consisting of the Acting Chief Justice Kania and Shah J.  of the  Bombay High Court on 16th June, 1986. So far as  appeal No.  216  of 1986 is concerned, according  to  the  Division Bench; (i) there was no direct evidence that the alterations in the grades of Chandrakala Patil were made at the instance of the appellant; (ii) the reasonings of the trial Judge  in coming  to the conclusion that respondents No. 3 and  4  the original petition were responsible for getting Dr. Rawal  to alter the grades was based on certain contingencies and were too  tenuous for the conclusion based on such  reasoning  to amount to a positive finding; (iii) Merely because  respond- ent No. 3 to the original petition held a position of  great power and would have been happy to see that his daughter had passed  the M.D. examination, it was difficult to  conclude, as a finding of fact that he must have 460 influenced  Dr. Rawal to alter the grades of  his  daughter; (iv)  it  was true that a seasoned examiner like  Dr.  Rawal would  not  have  taken the risk involved  in  altering  the grades  except under a great pressure or pursuation, but  it cannot be ruled out the possibility of various motives which might  have induced Dr. Rawal to take the risk  of  altering the  grades; (v) however in all probability Dr. Rawal  would not  have  acted  unless he had made him  assured  that  the appellant  Shivaji Rao Patil was behind the person who  pur-

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suaded  him ’to alter the grades; (vi) that when  allegation of  this type is made against anyone holding a  position  of prestige  and  power,  it was necessary  that  the  evidence should  be closely examined before holding  such  allegation well founded. Therefore the Bench observed that the  remarks made  against  the  appellant. Nilangekar  Patil  cannot  be supported  as conclusions arrived at against him  but  these can be regarded as adverse comments and not finding of  fact and  such comments were not wholly unjustified in the  facts of this case. However, the Division Bench refused to  enter- tain an application to introduce additional evidence as part of the claim of public interest litigation. Hence the appeal No.  CA  4452/86  by Nilangekar Patii  against  the  adverse comments were allowed to remain and there was a cross appeal 4453/86  by Dr; Madhav Gosavi    against refusal  to  accept additional evidence. Dismissing the appeals by special leave, the Court,      HELD: 1.1 The basic principle of admission of addition- al  evidence  is that the person seeking  the  admission  of additional  evidence should be able to establish  that  with the  best  efforts such additional evidence could  not  have been  adduced  at  the first instance.  Secondly  the  party affected by the admission of additional evidence should have an  opportunity to rebut such additional  evidence.  Thirdly that additional evidence was relevant for the  determination of the issue. [474 G]      Here,  the additional evidence sought to be  introduced mainly  consist of alleged instances when the  appellant  on previous occassions had in respect of some criminal proceed- ings  and other matters pending used his influence  to  drop those proceedings. Applying the principle as to admission of "similar fact evidence" it must be held that the allegations of  the  alleged conduct of the appellant in  similar  cases would  not  be a safe basis upon which to  admit  additional evidence  in this case having regard to the issues  involved and  nature of the issues involved in these matters  and  at the  stage when these were sought to be introduced. [474  H, 476 E]      Mood Music Publishing Co. Ltd. v. De Wolfe Ltd., [1976] 1 All E.R. 763 @ 766, quoted with approval. 461     2.  The mere fact that several infirmities were  noticed in  the  affidavit  of Dr. Mishra upon  which  the  original petitioner Dr. Gosavi based his own petition could not  lead to  the  argument  that the entertainment  of  the  petition itself  was  wrong.  The allegations made  in  the  petition disclose a lamentable state of affairs in one of the premier universities  of India. The petitioner might have  moved  in his  private  interest but enquiry into the conduct  of  the examiners  of  the Bombay University in one of  the  highest medical degrees was a matter of public interest. Such  state of  affairs having been brought to the notice of the  court, it  was the duty of the court to the public that  the  truth and  the validity of the allegations made be inquired  into. It  was  in furtherance of public interest that  an  enquiry into  the  state of affairs of  public  institution  becomes necessary  and private litigation assumed the  character  of public  interest litigation and such an inquiry  cannot   be avoided if it is necessary and essential for the administra- tion of justice. [477F, 477G--478A]     3.1 It is true that exercise of the power under  Article 136 of the Constitution is discretionary. There is no  ques- tion in this case of giving any clean chit to the  appellant in  the  first appeal. It leaves a great deal  of  suspicion that  tampering  was  done to please Shri Patil  or  at  his

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behest.  It is true that there is no direct evidence. It  is also  true  that there is no evidence to link  him  up  with tampering.  Tampering  is established. The  relationship  is established. The reluctance to face a public enquiry is also apparent.  Apparently  Shri Patii, though holding  a  public office  does not believe that "ceaser’s wife must  be  above suspicion".  The erstwhile Chief Minister in respect of  his conduct did not wish or invite an enquiry to be conducted by a body nominated by the Chief Justice of the High Court. The facts disclose a sorry state of affairs. Attempt was made to pass  the, daughter of the erstwhile chief Minister who  had failed thrice before by tampering the record. The person who did  it was an employee of the Corporation. It speaks  of  a sorry  state of affairs and though there is  no  distinction between  comment and a finding and there is no  legal  basis for such a comment. [484A- D]     3.2 The court cannot be oblivious that there has been  a steady  decline  of public standards or  public  morals  and public  morale.  It is necessary to cleanse public  life  in this country along with or even before cleaning the physical atmosphere. The pollution in the values and standards is  an equally  grave menace as the pollution of  the  environment. Where  such  situations cry out the Courts  should  not  and cannot remain mute and dumb. [484 E]     3.3 Where allegations of mala fide were made, the  Court must  be cautious. It is true that allegation of mala  fides and  of improper motives on the part of those in  power  are frequently made and their frequency has increased 462  in recent times. In this task which is cast on the  courts, it  will be conducive to have disposal and consideration  of them if those against whom allegations are made came forward to  place before the court either the denials or their  ver- sion of the matter so that the courts might be in a position to  judge  whether  the onus that lay upon  those  who  make allegations of mala fides on the part of the authorities had been discharged in proving it. It is true that the basis  of the  allegations being the affidavit of Dr. Mishra was  con- sidered to be thoroughly unreliable. In this case there  was specific  and  categorical  denial by  the  erstwhile  Chief Minister  that tampering was done at his behest.  Therefore, while the court should be conscious to deal with the allega- tions  of mala fide or cast aspirations on holders  of  high office and power, the court cannot ignore the  probabilities arising from proven circumstances. [478 B, F--G]      C.S.  Rawjee & Ors. v. Andhra Pradesh State Road Trans- port Corporation, [1964] 2 SCR 330, referred to.          3.4 Where evidence was adduced by affidavits,  such affidavits might be properly verified either on knowledge or from sources. Here it is true that undoubtedly the affidavit and  the  petition were defective, but the court  has  taken cognizance  of  the matter and certain  inferences  followed from  the inherent nature of facts apparent from  the  facts brought before the court. [479A. D]      The  Barium  Chemicals Ltd. & Anr. v. The  Company  Law Board & Ors., [1966] Supp. SCR 311; Padmabati Dasi v.  Rasik Lal  Dhar, ILR XXXVII Calcutta 259; The State of  Bombay  v. Purushottam Jog Naik, [1952] SCR 674; E.P. Royappa v.  State of Tamil Nadu & Anr. [1974] 2 SCR 348; Tara Chand Khatri  v. Municipal Corporation of Delhi & Ors., [1977] 2 SCR 198; and Sukhvinder Pal Bipan Kumar v. State of Punjab & Ors., [1982] 2  SCR 31; Seth Gulabchand v. Seth Kudilal & Ors., [1966]  3 SCR 623 at 629; Jarat Kumari Dassi v. Bissesur, ILR 39  Cal. 245:16  C.W.N. 265; Raja Singh v. Chaichoo Singh,  AIR  1940 Patna 281 at 203, referred to.

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    The  State of Uttar Pradesh v. Mohammad Naim, [1964]  2 SCR 363. Vineet Kumar v. Mangal Sain Wadhera, AIR 1985SC817; The  Bank  of  lndia & Ors., v. Jamesetji  A.H.  Chiney  and Messrs. Chinoy and Co., AIR 1950 PC 90; Sri Harasingh Charan Mohantv v. Sh. Surendra Mohanty, [1974] 3 SCC 680;  Niranjan Patnaik  v.  Shashibhushan Kar and Anr. [1985]  2  SCC  569, distinguished.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal Nos. 4452-53 of 1986 463     From  the  Judgment  and Order dated  16.6.1986  of  the Bombay High Court in Appeal No. 216 of 1986.     D.R. Dhanuka, V.M Tarkunde, and Dr. L.M. Singhvi, Pramod Swarup,  Milind  Sathe, P.N. Gupta,  P.C.  Srivastava,  U.S. Prasad,  A.M. Singhvi, C. Mughopadhaya,  Raian  Karanjawala, Mrs.  Manik Karanjawala, Hardeep S. Anand, Ejaz Moqbool,  S. Radhakrishn anand Surya Kant for the appearing parties. The Judgment of the Court was delivered by     SABYASACHI  MUKHARJI, J. These two special  leave  peti- tions arise out of the decision of the Bombay High Court  in the appeal No. 216 of 1986. Leave as asked for is granted in both  and appeals arising therefrom are disposed of by  this judgment.     The  first appeal was filed by the appellant  Shivajirao Nilangekar  Patil  who was at the. relevant time  the  Chief Minister  of  the State Maharashtra and the second  one  was filed  by  Dr. Mahesh Madhav Gosavi, the  applicant  in  the original  writ petition out of which appeal ultimately  came to the Division Bench of the Bombay High Court resulting  in Civil Appeal No. 216 of 1986.     The controversy in this case centers round the  conduct, if  any,  of the appellant in the first appeal in  the  M.D. Theory  examination  in the discipline  of  Gynaecology  and Obstetrics held by the University of Bombay on 14th to  17th October,  1985. In that subject, the  practical  examination was held by the University at K.E.M. Hospital, Bombay.  This is  a well-known hospital in Bombay and we are told that  it is  run by the Municipality. The total number of  candidates registered  for the examination was 52 of which  5  remained absent.  One Dr. Mahesh Madhav Gosavi, original  petitioner, who  was at the relevant time Assistant Medical  Officer  of K.E.M. Hospital, Bombay was the petitioner. He and Smt.  Dr. Chandrakala  Patil alias Dawale, a Junior Assistant  Medical Officer  in  the said K.E.M. Hospital, Bombay, who  was  re- spondent  No.  4 to the original petition and one  Dr.  Mrs. Smita Thakkar who was respondent No. 5 were three candidates amongst others who had appeared for the examination. One Dr. M.Y. Rawal was the head of the Department of Gynaecology and Obstetrics in the said hospital and was the convener of  the Board  for  the said examination. Respondent No.  4  of  the original petition, Smt. Chandrakala Patil is the daughter of the appellant, the erstwhile Chief Minister of  Maharashtra. The appellant was at the relevant time the Chief Minister of Maharashtra. On 15th November, 1985, a circular was issued by the Univer- sity of 464 Bombay convening a meeting of local examiners for the final- isation of M.D. results on 18th November, 1985. On the  said 18th  November, 1985, the meeting was attended only  by  Dr. Rawal as Dr. Mukherjee, another coexaminer was not available

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at Bombay. On 30th November, 1985 the result of M.D.  exami- nation  was declared. Out of the 47 candidates who  had  ap- peared  for  the examination, 34  candidates  were  declared successful including Dr. Chandrakala Patil alias Dawale  and Dr.  Mrs.  Smita  Thakkar. The petitioner,  Dr.  Gosavi  was declared to have failed.     Upon  these,  a petition was filed by Dr.  Gosavi  under article  226 of the Constitution of India in the High  Court of Bombay.     Our attention was drawn to the fact that in the  affida- vit  in support of the petition one Dr. Manikant Mishra  had stated that he had approached Dr. Rawal to find out  whether his  wife had appeared in the said M.D. examination  and  it was alleged that on this occasion he had over-heard  certain alleged conversation between Dr. Rawal and Smt.  Chandrakala Patil,  daughter of the Chief Minister. It transpired  later that  Mrs. Kalpna Misra wife of the said Manikant Misra  was not even registered as a candidate.     In  the petition under, article 226 of the  Constitution filed before the High Court of Bombay on 16th January,  1986 Dr.  Gosavi  challenged  the results declared  in  the  said examination.  The  petitioner had claimed that he  had  been working  as a junior Assistant Medical Officer and  that  he had  done his housemanship in the Department  of  Obstetrics and Gynaecology at K.E.M. Hospital Respondent No. 2 i.e. Dr. Rawal  was  the Head of the Department of the same.  It  was further the case of the petitioner that due to some  reasons the  petitioner had no good terms with the  said  respondent No.  2.  The petitioner had passed the MBBS  examination  in April, 1981 and after completion of internship got registra- tion for M.D. (Obstetrics and Gynaecology) in June, 1982. It was  further the case of the petitioner that the  petitioner had  completed all the requirements and conditions  for  ap- pearing for the M.D. examination. The petitioner stated that the  University had declared examination programme  and  the petitioner thereafter had appeared for the said M.D.  exami- nation in the month of October/November, 1985.     There  are  several allegations made by  the  petitioner about  the irregularities and it was further alleged,  inter alia,  that the grade sheets were manipulated  and  tampered with as a result of which the said Dr. Chandrakala Patil and Dr.  Smita Thakkar were passed by respondent No.2 Dr.  Rawal at  the  instance  and behest of respondent no.  3  in  that petition, the appellant in the first appeal, being the Chief Minister of Maharashtra at the relevant time. He prayed that the  record  of grade sheet submitted to the  University  of Bombay 465 by  all the four examiners of M.D. in Obstetrics and  Gynae- cology  examination, necessary papers and rules and  regula- tions, should be produced and to set aside the result of the M.D.  examination to the extent that those students who  had secured P minus grade be disqualified. It was further  asked to  declare those students who secured upto any number of  P minus  to be passed. A prayer was made in the writ  petition filed in the High Court for producing grade sheets.     The petitioner incidentally verified the petition  stat- ing  that the contents of paragraphs 1 to 22 and  paragraphs 24 to 30 were true to his own knowledge while various  other relevant  paragraphs were verified as  information  received from  reliable sources but the source was not disclosed.  In these circumstances the petitioner claimed that the  results declared  in  respect  of some of  the  candidates  declared failed should have been declared passed. The allegations had been  made against the appellant in paragraphs 14 and 25  of

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the  petition.  In paragraph 14 it was  alleged  that  after these  irregularities came to light, the petitioner  in  the original  petition  had started enquiring.as to the  way  in which  respondent No. 2 had committed these  irregularities. The petitioner thereafter learnt that one Sree P.K. Shah who happened  to be a good friend of Dr. M.Y. Rawal,  respondent No.  2  in the original petition and also happened to  be  a good friend of respondent No. 4 as they were together as the assistant  medical officers at K.E.M. Hospital, Bombay.  The petitioner  also learnt that the said Dr. P.K. Shah and  Dr. M.Y. Rawal though not permitted by Rules and Regulations had been practising in Zaveri Clinic for Dr. C.L. Zaveri,  since long  time,  and thus they became dose friends. It  is  also learnt  that on behalf of Dr. (Mrs.) Chandrakala Patil,  who is  the daughter of erstwhile Chief Minister of  Maharashtra the  said P.K. Shah met respondent No. 2 and  requested  him that Dr. (Mrs.) Chandrakala Patil had appeared several times for M.D. Examination (Obs. & Gyn.) but could not get through and therefore she should be shown some favour. It was learnt that  the respondent No. 2 informed the said Dr.  P.K.  Shah that  he would definitely favour Dr. Mrs. Chandrakala  Patil if  she failed, provided the Chief Minister  himself  phoned him personally. The respondent No. 2 also told the said  Dr. P.K.  Shah that he would come to know about the result  only after  the submission of the grade sheet to  the  University because  thereafter  only one would know the  position  with regard to the names of the students who have failed and till that  time he would not know. It was further stated that  it was learnt that the respondent No. 2 also informed the  said Dr. P.K. Shah that he would take the risk only if the  Chief Minister  gave him a telephone ring otherwise he would  not. It  was  alleged that the respondent No. 3 in  the  original petition  and  the  appellant herein  after  receiving  this message  from  the respondent No. 4 and from Dr.  P.K.  Shah accordingly contacted respondent No. 2 and requested him  to favour his daughter. 466 In  paragraph 25 of the petition, the petitioner  stated  as follows:               "The  petitioner states that on the  basis  of               information  from reliable source,  the  peti-               tioner has made allegations on Chief  Minister               of  Maharashtra, therefore, he has  been  made               respondent No. 3 in this writ petition."     These were the only allegations upon which the  petition was factually based. The necessary verification has been set out  hereinbefore. The appellant Shri Shivajirao  Nilengekar Patil  filed an affidavit denying the allegations  in  para- graphs  14  and 25 of the application stating  that  he  had played no part in the said examination as alleged or  other- wise. It was also stated in the aforesaid affidavit that the petitioner  has  not  disclosed  the  ’so-called’   reliable sources of information. No affidavit was filed by the  peti- tioner  himself. The alleged source of information  was  not disclosed at any time. As mentioned hereinbefore an  affida- vit  was filed by one Dr. Manikant Mishra on 28th  February, 1986  in support of the allegations. Further  affidavit  was sought  to  be tendered on behalf of the petitioner  to  the learned  single  judge regarding  certain  additional  facts after  the  final  hearing had started  before  the  learned single  judge  of the High Court of Bombay. It may  be  men- tioned as a matter of historical record that Dr. M.S.  Gore, Vice-Chancellor of University of Bombay resigned.     The  learned single judge by his judgment held that  the evidence  of  the petitioner as well as of  Dr.  Misra  were

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unsatisfactory  and  unreliable. Reference was made  to  the submissions  of the petitioner’s counsel relying under  sec- tion 114 of the Evidence Act. In para 18 of the judgment  it was held that it could be reasonably inferred that  altering and  tampering of the gradesheets were done by Dr. Rawal  at the  behest of respondents No. 3 and 4. On 7th  March,  1986 the  day  after the judgment, the appellant  Shivajirao  Ni- langekar  Patil resigned as the Chief Minister of  State  of Maharashtra  in  view of the Judgment. It may  be  mentioned that  on or after 14th April, 1986 certain  affidavits  were sought  to be filed on behalf of the petitioner  in  pending appeals purporting to rely upon certain allegations in  writ petition  No.  1709  of 1985 filed  by  Sub-Inspector  Lambe challenging the order of transfer and also an article  which had appeared in INDIA TODAY.     The Division Bench of the Bombay High Court rejected the prayer  to adduce the additional evidence. We  have  perused the  nature of the additional evidence which were sought  to be adduced as is apparently from the special leave  applica- tion  by  Dr. Gosavi, the original petitioner  in  the  writ petition  and  the respondent in the  first  appeal  herein. These  deal  with the alleged involvement of  the  erstwhile Chief Minister of Maharasthra in the matter of 467 the  careers  of his son, his son-in-law and in  respect  of transfer of one Inspector Lambe. As the additional  evidence were  not  admitted and the appellant in  the  first  appeal herein  had no opportunity to deal with the same,  it  would not  be, fair to take these allegations into  consideration. But  these  if true make dismal reading and  give  a  sordid picture  of the state of administration prevailing  at  that time in the State of Maharashtra. But as the High Court  did not  admit  these, perhaps because these  were  belated  and perhaps  would  have unnecesserily prolonged the  trial  and were not directly connected with the immediate issues before the High Court, this Court in the exercise of its  jurisdic- tion under Article 136 of.the Constitution would not  inter- fere with the decision of non-admission of these  additional evidence and say no more.     On  16th  June, 1986, the Division Bench of  the  Bombay High  Court  in appeal No. 216 of  1986  delivered  judgment holding  in  para  35 of the judgment  that  the  conclusion arrived at against Shri Nilangekar Patil was to be  regarded merely  as an adverse comment and not as a finding of  fact. To  that extent the finding of the learned single judge  was upset. The special appeal has been preferred by the original petitioner  against the appellant challenging  the  findings respectively.  In the appeal by the original  petitioner  an affidavit had been filed in this case claiming the right  to adduce additional evidence.     The   controversy   before   this   court   is    rather narrow--namely; was there justification for the remarks made by  the learned trial judge against the appellant  Patil  in his judgment to the extent that manipulations in the  grade- sheets  of  M.D. examination was done at the behest  of  the appellant,  the then Chief Minister of Maharashtra  to  help respondent No. 4 to pass the M.D examination can the same be justified  either as a finding of fact or as a  comment?  In order  to consider the same must be examined in  little  de- tail.     "Something  is  rotten in the state of  Denmark"  sensed Marcellus  in Scene V of Act 1 in Shakespeare’s  Hamlet.  It can well be lamented that there was something rotten in once premier  and prestigious University of Bombay: as the  facts reveal. Justice Pendse of the Bombay High Court, the learned

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single judge before whom the matter came up for hearing  has in  an exhaustive discussion narrated the sad state  of  af- fairs  in  this University of Bombay which has  produced  so many eminent professors and students.     The  University  of Bombay conducts  M.D.  examinations, inter alia, in the disciplines of Obstetrics and Gynaecology in the Faculty of Medicine. The theory examination  consists of  four  papers,  of which paper No. IV is  of  Essay.  The theory papers 1 to 111 consist of three questions each.  The practical clinical examination consists of a long and  short case in obstetrics and a long and short case in  Gynaecology and Viva. The theory papers are assessed by individual 468 examiners  and  the grades are allotted in respect  of  each question in each paper n accordance with the provisions  set out in the note giving special instructions to the examiners in  the Faculty of Medicine. The M.D. theory examination  in the  instant  case was held between 14th  October  and  17th October,  1985  and was followed  by  practical  examination which was held between 4th November and 9th November,  1985. The University had appointed four paper-setters and  examin- ers in accordance with the necessary provisions of the  Act, two of which were internal examiners, namely Dr. M.Y.  Rawal as  mentioned hereinbefore and one Dr. S.N.  Mukherjee  from Indian Navy. There were two external examiners who were  Dr. (Mrs.)  A. Nafeesa Beebi from Madras and gr. S.T.  Watwe  of Sangli. It is not necessary to deal in more detail with  the 7actual  aspects which as mentioned hereinbefore  have  been exhaustively  set out in the judgment of the learned  single judge,  and which were not disputed before us by any of  the parties.  We may mention that grading had to be made on  the following lines as noted in the judgment of the trial judge:                      "G"     -- Good.                      "p"     -- Little better than passing.                      ,’p"    -- Passing                              Border line failure                      "F"     -- Failure.     The  learned single judge noted that 37  candidates  had been  declared successful including respondent No.  4  being Chandrakala Patil and respondent No. 5 Dr. Mrs. Smita  Thak- ker.  The other respondents no. 6 to 15 mentioned  hereinbe- fore  were other successful candidates whose result came  to be  nullified  and  made subject to  re-examination  by  the judgment  of the learned single judge. We are not  concerned with  this aspect or with them any more. The petitioner  had claimed  that  he had wrongly been declared as  failed.  The petitioner stated that he had some doubts as to whether  his code  number was properly decoded and he made various  other allegations.  The petitioner complained and the gravamen  of his charges was that there were large number of  irregulari- ties  in the declaration of result and mark-sheet  was  tam- pered in favour of respondent no. 4 Chandrakala Patil who is the  daughter of the erstwhile Chief Minister and  that  Dr. Rawal  was instrumental in tampering with the  result  which was  done  at  the behest of the then  Chief  Minister.  The learned  judge came to the conclusion that Dr.  Rawal  alone was responsible for tampering with and altering the tabulat- ed  grade-sheet of theory examination. After discussing  all these  aspects in detail at the concluding paragraph  15  of the judgment, the learned judge had observed that he had  no hesitation in concluding that Dr. Rawal was responsible  for manipulating  the result by tampering with and altering  the grade-sheet so as to favour respondent No. 4 469 and respondent no. 5 in the writ petition namely Chandrakala

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Patil and Dr. Smita Thakkar.     The  next question, and which is the main  issue  before us,  to  which the learned judge’s attention was  drawn  was whether  the manipulation was done by Dr. Rawal at  the  in- stance  of  or  behest of respondent no.  3,  the  appellant herein, the then Chief Minister of Maharashtra. The  learned judge  discussed the evidence in great detail.  The  allega- tions  in respect of the same are contained in paragraph  14 of the petition which have been set out hereinbefore.     The  learned judge noted after setting out the  gist  of the  allegation  in paragraph 14 of the  petition  that  the averments made in that paragraph were wholly  unsatisfactory and insufficient because the petitioner to the writ petition and the respondent herein had not disclosed from whom he had learnt what he had averred. We are in entire agreement  with that  conclusion  of the learned single judge.  Indeed  this aspect was not disputed by any of the parties before us. The learned single judge further noted that the allegations were not only denied by Dr. Rawal, Dr. Shah and Chandrakala Patil but  also by the Chief Minister, the appellant, on  oath  by filing  affidavit.  Dr. Shah had claimed that he  had  never contacted  Dr. Rawal in connection with the  examination  of respondent  no. 4 and so was the claim of respondent  no.  4 and of Dr. Rawal. The appellant in his affidavit dated  26th January,  1986  had stated that Dr. Shah did  not  send  any message nor did be contact Dr. Rawal at any stage. An effort was  made by the original petitioner, respondent  herein  to establish by direct evidence the link between Dr. Rawal  and respondent  no.  4 by relying upon the evidence of  one  Dr. Mishra sworn on 28th February, 1986. Dr. Mishra had  claimed that  his  wife who is a doctor had left home to  appear  in M.D.  examination  in November, 1985, but  subsequently  the wife  declined to answer as to whether she had  appeared  or not. Dr. Mishra claimed that he went to Dr. Rawal to enquire and  he  noticed that respondent no. 4 was  sitting  in  the doctor’s chamber. Dr. Mishra claimed that he over-heard  Dr. Rawal telling respondent No. 4 about her poor performance in the  examination  and suggested that he could  do  something only  if her father, the Chief Minister, gave  any  message. The  learned single judge observed in his judgment the  less said  about  this affidavit was better.  The  learned  judge further  observed that it was impossible to place any  reli- ance  on the evidence of Dr. Mishra as it was not known  how he  came  to  contact  the  original  petitioner--respondent herein or why he did not choose to file affidavit till  28th February,  1986. Dr. Rawal had denied in his  evidence  that this  Mishra  came to see him and pointed out that  on  that relevant  date,  that  he was heavily occupied  and  he  had hardly  any  time to contact any visitor.  Smt.  Chandrakala Patil  also denied the meeting that ’transpired between  her and Dr. Rawal. In the judgment of the learned trial 470 judge,  it was unsafe to place any reliance on the words  of Mishra. We respectfully agree. The learned judge  thereafter concluded that there was no direct evidence to establish the involvement of respondent no. 3, the erstwhile Chief  Minis- ter  or the daughter, respondent no. 4 in the original  writ petition  in securing favourable result from Dr. rawal.  The learned judge noted that counsel appearing on behalf of  the petitioner before the trial judge had accepted this position but  had  urged  that it was not possible or  in  any  event extremely difficult to establish by direct evidence the link between the wrong doer and the benefit seeker in such cases. It  was, therefore, submitted that it was necessary for  the court  to draw inference from the probabilities of the  case

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as  well  as  the surrounding  circumstances.  Reliance  was placed  on the principles of section 114 of the Indian  Evi- dence  Act and it was claimed that from the facts  found  by the  High  Court, the inference was  irresistible  that  the results  were tampered with or altered at the behest of  the erstwhile Chief Minister and his daughter.     After  referring to the factual position and noting  the principles of law, the learned judge observed that  undoubt- edly  there  was no direct evidence that the result  of  re- spondent  no. 4 namely Smt. Chandrakala Patil  was  tampered with  at the behest of the appellant, Shivajirao  Nilangekar Patil,  respondent No. 3 in the original petition  but  that would  not  automatically lead to the  conclusion  that  the charges  against  the said respondents no. 3 and  4  to  the original  petition were not established. The  learned  judge went on to observe that it would be a mockery of justice  if the courts chose to close their eyes to the facts which were brought on record by the University by producing the  origi- nal  documents etc. The learned judge observed that  it,  in the  facts and circumstances of this case, could  reasonably be  inferred that the alteration was done at the  behest  of Nilangekar Patil, erstwhile Chief Minister and her daughter, Chandrakala Patil. It could not be overlooked, according  to the learned judge, that only these three were interested  in securing  favourable result at the examination According  to the learned judge there were two contingencies which had  to be  taken into consideration. The first was that  respondent no.  4, Smt. Chandrakala Patil, might have used the name  of her  father, the erstwhile Chief Minister to secure  favour- able result from Dr. Rawal and secondly, the appellant,  the erstwhile  Chief  Minister  might have used  his  office  to obtain a favourable result for his daughter. Learned counsel on  behalf  of  the original  petitioner  had  urged  before learned trial single judge that the third contingency  could not be overlooked that it was probable that Dr. Rawal on his own  did all these. Learned trial judge rejected  the  third contingency  as wholly improbable. He was of the  view  that Dr.  Rawal was an experienced examiner and he was not  young or immature and it was impossible to accept the view that  a person like Dr. Rawal would proceed to do a criminal act and tamper with the record of the examination on his own with  a view merely to 471 please  the  people in power. No same person,  according  to learned  judge, was likely to take such risk unless  he  was prompted  to do so and given an assurance of  protection  by the persons in power. The learned judge was of the view that the risk involved in what Dr. Rawal had done was so enormous that it was difficult to conceive that he did it on his own. It was further urged by learned counsel before learned trial judge that respondent no. 4, Chandrakala Patil had failed in the examination on three previous occasions when her  father was  Law  Minister and yet previously  the  said  Nilangekar Patil,  respondent  no.  3 had not used  his  influence  and power,  therefore  it was difficult to accept  the  position that  he  would do it on this  occasion.  This  hypothetical question,  according to the learned trial judge,  overlooked the fact that every examiner was not necessarily obliging or subservient as Dr. Rawal was. The learned judge,  therefore, concluded  that the corollary of this finding was  that  Dr. Rawal  had  done it at the behest of  either  the  appellant Nilangekar Patil or Chandrakala Patil or both of them.  Then the  learned judge passed some strictures on Dr.  Rawal  and suggested some punishment and gave certain directions  about examination  of 12 other candidates whose results were  also

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affected  by the conduct of Dr. Rawal. As these appeals  are not concerned with the same, it is not necessary to refer to these.  The learned judge directed that the result  declared on  30th November, 1985 in respect of respondents nos. 4  to 15 be revoked and that there should be fresh examination  by the  other examiners. These appeals are also  not  concerned with such direction.     It may be mentioned that an application was made  before the  learned  trial judge for  adducing  certain  additional evidence  on behalf of the petitioner. As the learned  trial judge thought that it would prolong the trial and for  other reasons, he declined to admit the additional evidence.     As mentioned hereinbefore there are three appeals  filed namely  appeal No. 214 of 1986 by Dr. Rawal, appeal no.  215 of  1986 by Chandrakala Patil and appeal No. 216 of 1986  by Nilangekar Patil.     These appeals came up before a division bench consisting of  Kania, Ag. C.J. Shah, J. of the Bombay High Court. By  a judgment  delivered on 16th June, 1986, these  appeals  were disposed  of. So far as appeal No. 214 of 1986 by Dr.  Rawal was  concerned,  the division bench found that some  of  the remarks against Dr. Rawal were too harsh and the  punishment was  too severe. They directed that enquiry be held  against him.  These appeals are not concerned with this. So  far  as appeal  No. 215 of 1986 preferred by Chandrakala  Patil  was concerned, the same was dismissed with no order as to costs. No  appeal  had been preferred to this Court from  the  said decision, So far as appeal No. 216 of 1986 before the  divi- sion  bench  was concerned, the learned judges  pointed  out after discussing the evidence and the principles of law that there was no direct 472 evidence  that the alterations in the grades of  Chandrakala Patil were made at the instance of the appellant.  According to  the division bench, the reasoning of the  learned  trial judge in coming to the conclusion that respondent Nos. 3 and 4 to the original petition were responsible for getting  Dr. Rawal  to  alter the grades aforesaid was based  on  certain contingencies.  According to the division bench the  reason- ings adopted by the learned trial judge were too tenuous for the conclusion based on such reasoning to amount to a  posi- tive  finding. The Division Bench observed that  merely  be- cause  respondent no. 3 in the original petition had held  a position  of  great power and would have been happy  to  see that  his  daughter  respondent no. 4 and  passed  the  M.D. examination, it was little difficult to conclude as a  find- ing of fact that he must have influenced respondent no. 2 to alter the grades of his daughter. The learned Division Bench noted  that  it was true that a seasoned examiner  like  Dr. Rawal would not have taken the risk involved in altering the grades  except  under a great pressure  of  persuasion.  The position that grades were altered was upheld by the division bench. The Division Bench, however, was of the opinion  that there  might  have  been various motives  which  might  have induced Dr. Rawal to take the risk and alter the grades. The division  bench observed that theoretically it was  possible to  conclude as was urged by Mr. Dhanuka, the learned  coun- sel,  that the respondent no. 4 might have used the name  of her  father and persuaded Dr. Rawal to alter the  grades  or some  other  influential person might  have  intervened  and persuaded Dr. Rawal to alter the grades on the footing  that respondent  no.  3 would be very happy to see  his  daughter passed  and  would reward Dr. Rawal or take care of  him  or there might be some other inducement. However, the  Division Bench  was  of the view that in a11  probability  Dr.  Rawal

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would not have acted unless he had made him assured that the appellant  in  the first appeal was behind  the  person  who persuaded him to alter the grades. In the view of the  Divi- sion  Bench  therefore the conclusion of the  learned  trial judge  that  the grades of respondent no. 4 must  have  been altered  by respondent no. 2 at the instance  of  respondent no.  3  by using his official position under  a  promise  of protection was certainly not one which could properly amount to  a finding. The Division Bench further observed that  the evidence  in support of such a conclusion is too slender  to support a finding of such gravity. The Division Bench was of the  view that merely because the appellant held a  position of  great prestige and power, it could not be said that  the action  of  Dr. Rawal must have been induced by him  and  in fact  when  allegation of this type is made  against  anyone holding  a position of prestige and power, it was  necessary that the evidence should be closely examined before  holding such  allegation  well-founded. The Division  Bench  in  its exhaustive judgment noted various decisions of this Court as well  as of the English Courts. The High Court  referred  to the decision of this Court in Niranjan Patnaik v.  Sashibhu- shan Kar and Another, [1986] 2 SCC 569., a decision in which the judgment was delivered by one of us (S. Natarajan, J.). 473 The  High Court observed that the remarks made  against  the appellant,  Nilangekar Patil cannot be supported as  conclu- sions  arrived at against him but these can be  regarded  as comments and not finding of fact and such comments were  not wholly  unjustified  in  the facts of this  case.  The  said appeal  No.  216 of 1986 was disposed  of  accordingly.  The Division Bench also upheld the finding of the learned single judge  that there was tampering with the grade  sheets.  The Division  Bench also uphold the finding that Dr.  Rawal  was mainly  responsible for the same. The setting aside  of  the results of Smt. Chandrakala Patil and Smt. Smita Thakkar was also  upheld. So far as the learned trial judge,  held  that the  same  was  done at the behest of  the  erstwhile  Chief Minister,  the same was not upheld as a finding of fact  but remarks  to that fact made by the learned trial  judge  were not  interfered  with. An affidavit was filed  claiming  the right to adduce certain additional evidence and  introducing certain  writings  from the magazine INDIA TODAY  etc.  Such additional evidence were sought to be introduced as part  of the claim of public interest litigation because it  involved the conduct of the Chief Minister in respect of the  affairs of the University. Such claim for introduction of additional evidence,  was,  however, not entertained  by  the  Division Bench.  The Division Bench, however, in its  judgment  noted that the appellant was party to the writ petition and had an opportunity of explaining and defending himself. There  were materials  on record bearing on his conduct  justifying  the remarks  which the Division Bench characterised as  comments and  not  findings. A prayer was made  before  the  Division Bench  for deletion of such remarks. The Division Bench  was of  the view that as the appellant had opportunity  to  meet such remarks and such remarks were made upon hearing of  the petition the question as to the conduct of the appellant  in the  episode was a matter of argument and it naturally  fell for  consideration before the Court. Judging the conduct  of respondent  No.  2  i.e. Dr. Rawal the part  played  by  the appellant, erstwhile Chief Minister naturally fell for  con- sideration.  If  the  finding of the  learned  trial  judge, according  to  the Division Bench, was looked upon  as  more adverse  comments and not as a finding as such, there  could not  be  any objection to the same. The Division  Bench  was

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further  of  the view that the circumstances  noted  by  the learned judge against the appellant Nilangekar Patil, afore- said,  formed  a  reasonable and cogent  basis  for  adverse comment on his conduct. However, the Division Bench made  it clear  that these were merely in the nature of adverse  com- ments and based on the material on record and at the hearing of a proceeding which involved the taking of evidence merely on  affidavits.  According to the Division Bench,  a  fuller enquiry might lead to a conclusion that the comment was  not justified. In view of this, the Division Bench had asked the learned counsel for the appellant Shri Dhanuka, whether  the appellant desired that there should be a full-fledged factu- al enquiry into the charges of the alteration of the  grades of respondent no. 4 having been altered as aforesaid with  a view to pass respondent no. 4, Smt. Chandrakala Patil and 474 further that this was done at the instance of the  erstwhile Chief Minister. The Division Bench noted that the  appellant made  no  request  for any such enquiry and  he  was  merely taking  a stand on the footing that the evidence  on  record did not justify any conclusion being arrived at or a comment being  made  against respondent no. 3.  The  Division  Bench suggested that even at that stage, if the appellant wanted a full  fledged enquiry and requested the University  to  hold the same, the University might hold such an enquiry into the results  of M.D. examination in Gynaecology and  Obstectrics held  in  November,  1985, particularly in  respect  of  the results  of respondents Nos. 4 & 5, but if such  an  enquiry was  held, the person designated to hold the enquiry  should be  selected  with the consent of the Chief Justice  of  the Bombay High Court.     Two  appeals--one arising out of Special Leave  Petition (Civil)  No.  7568 of 1986 filed  by  Shivajirao  Nilangekar Patil  against  the alleged adverse remarks  and  the  other arising  out of Special Leave Petition (Civil) No. 10665  of 1986 by the original petitioner are before this Court. There is an application for introduction of additional evidence.     There  are three points involved in these  two  appeals. Firstly,  we have to determine in the appeal by  the  appel- lant,  Nilangekar  Patil, the erstwhile  Chief  Minister  of Maharashtra,  whether the observations made by the  division bench about the comments on the conduct of the Chief  Minis- ter  were justified or not or should be expunged.  Secondly, and connected with the first question is the question wheth- er the Division Bench of the Bombay High Court was right  in upsetting  the  finding that the tampering with  the  grade- sheets  was done at the behest of the Chief Minister  was  a finding  based on no evidence; and thirdly whether,  in  the facts and circumstances of this case the court was justified in  refusing  to admit additional evidence  and  whether  we should at this stage admit additional evidence.     The  additional evidence as we have mentioned  hereinbe- fore  consist of certain report in INDIA TODAY  and  certain other Magazines and certain affidavits. The basic  principle of  admission  of  additional evidence is  that  the  person seeking the admission of additional evidence should be  able to  establish  that with the best  efforts  such  additional evidence could not have been adduced at the first  instance. Secondly  the party affected by the admission of  additional evidence should have an opportunity to rebut such additional evidence. Thirdly, that additional evidence was relevant for the  determination  of the issue.  The  additional  evidence sought to be introduced mainly consist of alleged  instances when the Chief Minister on previous occasions had in respect of some criminal proceedings and other matters pending  used

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his  influence to drop those proceedings. Now  about  these, these are controvertial allegations. There is no satisfacto- ry explanation that these so-called material in the form of 475 additional evidence could not have been obtained before  the institution  of the petition in the High Court. To this  Mr. Tarkunde’s  submission was that it was difficult  to  gather evidence against a Chief Minister in office but as the  case had gathered momentum, people had come in and after decision of the learned trial judge, the Chief Minister had  resigned and there was an atmosphere of belief for offering to adduce evidence which people were hesitant to give before that.  We are of the opinion that at this belated stage there was  not sufficient  material  ground on  which  additional  evidence should  be  admitted  for the determination  of  the  issues involved in these appeals.     In  the  appeal  filed by the  original  petitioner  Dr. Mahesh  Madhav  Gosavi,  it was submitted  that  there  were sufficient materials upon which the conclusion arrived at by the  learned trial judge that the tampering was done at  the behest  of  the erstwhile Chief Minister  and  the  Division Bench was in error in deciding that, that was not the  find- ing  of  fact.  Mr. Tarkunde conceded, and  in  our  opinion rightly, that the view of the Division Bench that the obser- vation  of  the learned single judge that tampering  of  the grade-sheets  in M.D. examination was done at the behest  of the Chief Minister was in the nature of a comment and not  a finding was a distinction without any difference. We are  of the opinion that he is right in this submission. We are also of the opinion that the Division Bench was right in  holding that there was no direct evidence. We are conscious that  in a  situation of this type it is difficult to  obtain  direct evidence.     So far as admission of additional evidence is concerned, we  are unable to accept the position that  such  additional evidence  should  have been admitted in order  to  show  the nature  of the conduct of the Chief Minister in other  cases in similar situations.     The  admissibility of evidence as to ’similar fact’  has been considered by the courts. In this connection it may  be instructive to refer to the observations of Lord Denning  in Mood Music, Publishing Co. Ltd. v. Dc. Wolfe Ltd., [1976]  1 All  England Law Reports 763 at 766., to the  following  ef- fect:               "The admissibility of evidence as to  ’similar               facts’ has been much considered in the  crimi-               nal law. Some of them have reached the highest               ’tribunal,  the latest of them being  Boardman               v. Director of Public Prosecutions (1974)3 All               ER  887, (1975) A C 421. The  criminal  courts               have  been  very  careful not  to  admit  such               evidence  unless  its probative  value  is  so               strong  that  it  should be  received  in  the               interests  of justice: and its admission  will               not operate unfairly to the accused. In  civil               cases the courts have followed a similar  line               but have not been               476               so  chary of admitting it. In civil cases  the               courts will admit evidence of similar facts if               it  is logically probative, that is if  it  is               logically  relevant in determining the  matter               which  is in issue,’ provided that it  is  not               oppressive  or unfair to the other  side;  and               also that the other side has fair notice of it

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             and is able to deal with it."     On this aspect cross On Evidence, Sixth Edition page 346 has  observed  that although in some early  Civil  cases  in England  rejected similar fact evidence as res  inter  alias act,  it  was soon accepted that the rule of  exclusion  was certainly no stricter than that in criminal cases. The  real question  was whether there was a special rule of  exclusion at  all, or whether it were not rather a question of  simple relevance  in  each case. The learned author noted  that  in more recent time, there has been a further relaxation of the exclusionary  rules  in civil cases. Cross at  page  346/347 further  noted that the aforesaid observations of Lord  Den- ning  might  be  interpreted as applying in  civil  cases  a similar  sort  of balancing approach to the  rules  for  the admissibility of similar fact evidence as applied in  crimi- nal cases. The factors to be weighed were however  different on account of the peculiar position of the accused in crimi- nal cases. The learned author noted that there was very high authority  accounting for the existence of  an  exclusionary discretion  in  criminal cases solely by  reference  to  the accused’s vulnerability to prejudice.     Applying  the  aforesaid principles to the facts  as  we have mentioned hereinbefore, we are of the opinion that  the allegations  of alleged conduct of the appellant in  similar cases  would not be a safe basis upon which to  admit  addi- tional  evidence, in this case having regard to  the  issues involved and nature of the issues involved in these  matters and at the stage when these were sought to be introduced.     In support of the appellant in Civil Appeal arising  out of  Special  Leave Petition No. 7568 of  1986,  Dr.  Singhvi submitted  that  the petitioner/appellant had  suffered  and would  continue  to  suffer serious  civil  consequences  on account  of findings or adverse comments or strictures  made by  the learned single judge. It was in those  circumstances that this appeal had been filed, The appellant had  resigned as  Chief Minister and he is due, according to Dr.  Singhvi, to  contest the bye-election in November, 1986. He has  fur- ther submitted that the question in these appeals had to  be viewed  in the perspective of law and strictly on the  basis of the record and should not be permitted to be  politicised either by extraneous allusions or by. presumptions and  pre- suppositions  inconsistent  with legal principles or  by  an attempt  by political opponents to convert  the  proceedings into  a  political  trial. It was his  submission  that  the averments and the supporting affidavits which formed the 477 basis  of the allegations against the appellant  were  dealt with in the two courts below in the manner as we have  indi- cated.  He  specially referred to the  observations  of  the learned single judge about the affidavit in support of these allegations.  He also relied on the observation on  Dr.  Mi- shra’s  affidavit  and  the adverse  comments  made  by  the learned  single  judge on Dr. Mishra’s  affidavit.  He  also referred  to  the  finding of the Division  Bench  that  the petitioner  had no personal knowledge of this  incident  nor had  he  disclosed the source of the information.  That  the petitioner had filed the affidavit of one Manikant Misra and then  drew  our  attention to the  various  allegations  and infirmities  of  the affidavit and specially relied  on  the various motives which might have induced Dr. Rawal, respond- ent  no.  2 in the original petition to take  the  risk  and alter  the grades and also he referred us to the finding  at page  132 of the Paper Book of the Division Bench  that  the evidence  was  much  too slender in support  of  the  charge against  the  appellant. He emphasised  that  these  appeals

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arose out of exercise of extra-ordinary jurisdiction by  the civil court, not by trial on examination and  cross-examina- tion of evidence but an exercise of extra ordinary jurisdic- tion  on  the basis of the affidavit, and the  court  should insist  that there should be ’commensurate’ proof for  judi- cial  certitude and that the distinction  between  ’finding’ and ’adverse comment’ was a distinction without any  differ- ence because it was throughout recognised as a finding.     The  Division Bench in Appeal No. 216 of 1985  has  held that the conclusion arrived at against Shri Nilangekar Patil was  a  comment and not a finding of fact. Dr.  Singhvi  re- ferred  extensively to the affidavit of Dr. Mishra and  com- ments  of learned single judge and the Division Bench as  to how unreliable such affidavit was.     It was submitted that in view of the infirmities of  the affidavit of Dr. Mishra upon which the original  petitioner, Dr. Mahesh Madhav Gosavi based his own petition was of  such an  unreliable  credience that the courts  should  not  have entertained  the application. The Division Bench was  unable to accept that position. We are in agreement with the  Divi- sion Bench.     The allegations made in the petition disclose a  lament- able state of affairs in one of the premier universities  of India. The petitioner might have moved in his private inter- est  but  enquiry into the conduct of the examiners  of  the Bombay University in one Of the highest medical degrees  was a  matter of public interest. Such state Of  affairs  having been brought to the notice of the court, it was the duty  of the  court to the public that the truth and the validity  of the allegations made be inquired into. It was in furtherance of public interest that an enquiry into the state of affairs of public institution becomes necessary 478 and  private  litigation  assumes the  character  of  public interest litigation and such an enquiry cannot be avoided if it  is  necessary and essential for  the  administration  of justice.     The allegations of the petitioner have been noted  about the role of the Chief Minister. It is well to remember  that Rajagopala  Ayyangar,  J.  Speaking for this  Court  in  CS. Rowjee & Ors., v. Andhra Pradesh State Road Transport Corpo- ration  [1964]  2  S.C.R. 330 observed at page  347  of  the report that where allegations of this nature were made,  the court  must be cautious. It is true that allegation of  mala fides and of improper motives on the part of those in  power are  frequently  made and their frequency has  increased  in recent times. This Court made these observations as early as 1964. It is more true today than ever before. But it has  to be  borne in mind that things are happening in  public  life which  were  never  even anticipated before  and  there  are several  glaring  instances  of misuse of power  by  men  in authority  and position. This is a phenomenon of  which  the courts are bound to take judicial notice. In the said  deci- sion the court noted that it is possible to decide a  matter of  probabilities and of the inference to be drawn from  all circumstances on which no direct evidence could be  adduced. The  court  further noted that it was  somewhat  unfortunate that allegations of mala fide which could have no foundation in fact were made and several cases which had come up before this Court and other courts and it had been found that these were  made merely with a view to cause prejudice or  in  the hope  that  whether they have basis in fact or not  some  of which might at least stick. It is therefore the duty of  the courts,  warned this Court in the said decision, to  scruti- nize these allegations with care so as to avoid being in any

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manner influenced by them in cases where they have no  foun- dation in fact. In this task which is cast on the courts, it will be conducive to have disposal and consideration of them if  those against whom allegations are made came forward  to place  before the court either the denials or their  version of  the matter so that the courts might be in a position  to judge whether the onus that lay upon those who make  allega- tions of mala fides on the part of the authorities had  been discharged  in proving it. Of course, the facts in  the  in- stant  case are different. It is true that the basis of  the allegations being the affidavit of Dr. Mishra was considered by the learned single judge as well as the Division Bench to be  thoroughly unreliable. In this case there  was  specific and categorical denial by the erstwhile Chief Minister  that tampering was done at his behest. Therefore, while the court should  be  conscious to deal with the allegations  of  mala fide  or  cast  aspirations on holders of  high  office  and power,  the  court cannot ignore the  probabilities  arising from proven circumstances.     Our  attention was drawn by learned counsel Dr.  Singhvi on  the observations of this Court in The  Barium  Chemicals Ltd. and Anr., v. The 479 Company Law Board and Others, [1966] Supp. SCR 311 where  at page  352 of the report the Court observed that  where  evi- dence  was adduced by affidavits, such affidavits  might  be properly  verified either on knowledge or from sources.  But the basis of such knowledge or source of information must be clearly  stated.  This  was laid down as early  as  1909  by Jenkins,  C.J. and Woodroofe, J. in Padmabati Dasi v.  Rasik Lal Dhar, [ILR XXXVII Calcutta 259] where the Division Bench of  the Calcutta High Court observed that the provisions  of Order  XIX, rule 3 of the Code of Civil Procedure,  must  be strictly  observes: every affidavit should  clearly  express how much is a statement of the deponent’s knowledge and  how much of the statement was in his belief, and the grounds  of belief  must be stated with sufficient  particularity.  This has  been  followed more or less universally  by  courts  in matters  where reliance is placed on affidavits.  This  view has been reiterated by this Court in The State of Bombay  v. Purushottam Jog Naik. [1952] SCR 674 It is on this principle that Dr. Singhvi urged that the original petition should not have been entertained because of the defective affidavit  in this  case. Undoubtedly the affidavit and the petition  were defective as mentioned hereinbefore. But the court has taken cognizance  of  the matter and certain  inferences  followed from  the inherent nature of facts apparent from  the  facts brought before the Court.     Reliance  was  also placed on the observations  of  this Court in E.P. Royappa v. State of Tamil Nadu & Anr.,  [1974] 2  SCR 348. The Facts or that case need not be  referred  in detail  except  to mention that there  allegation  was  made against the Chief Minister by a member of the Indian  Admin- istrative  Service in the cadre of the State of  Tamil  Nadu for  not  appointing him as the Chief Secretary.  Ray,  C.J. noted  in the judgment several facts which were  alleged  as instances  indicating  mala fide. It was stated  that  those instances  gave  rise  to the wrath of  the  Chief  Minister against  the petitioner in that case. After noting  the  al- leged incidents, the Chief Justice rejected these events and indicated that from the affidavit evidence it could not have been  said  that the Chief Minister had  committed  acts  of violence  or intimidation and the entire affidavit  evidence established beyond any measure of doubt that the allegations of  the petitioner in that case imputing mala fides  against

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the  Chief Minister were baseless. In a judgment  concurring Bhagwati, J. as the learned Chief Justice then was, observed at  page 389 of the report that in dealing with the  allega- tion  of  mala fide, it was necessary to bear  in  mind  two important  considerations; that the court was not  concerned to  investigate  into the acts of maladministration  by  the political  Government headed by the Chief Minister  at  that time. It was not within the province of the court to  embark on  a  far flung enquiry into the facts of  commission  and. omission charged against the Chief Minister in the  adminis- tration of the affairs of Tamil Nadu. That was not the scope of  the inquiry before the court and the court must  decline to  enter  upon any such. inquiry. It was one thing  to  say that the Chief Minister had 480 malus animus against the petitioner in that case. The  court was only concerned with the later limited issue and not with the former popular issue. The court cannot permit the  peti- tioner  to  side track the issue and escape  the  burden  of establishing  hestility and malus animus on the part of  the Chief Minister by diverting courts attention to incidents of suspicious  exercise  of executive power. It is  perhaps  on this basis that the Division Bench of the Bombay High  Court in the instant case rejected the application for  additional evidence and rejected the contention in support of the  view of misrule or misconduct by the erstwhile Chief Minister  of Maharashtra,  Nilangekar Patil, the appellant in  the  first appeal. The same principles in respect of affidavit evidence were  reiterated in different context by this Court in  Tara Chand  Khatri  v.  Municipal Corporation of  Delhi  &  Ors., [1977] 2 SCR 198. This Court reiterated that the High  Court was not too wrong in dismissing the writ petition in  limine in that case because a prima facie case requiring investiga- tion  had  not been made out by the  appellant.  This  Court reiterated that the High Court would be justified in  refus- ing  to carry on investigation into the allegations of  mala fide  if  necessary particulars of the charge making  out  a prima  facie case Were not given in the petition. Since  the burden  of  establishing mala fide lay very heavily  on  the person who alleged and the allegations made in regard there- to in the writ petition were not sufficient in that case  to establish malus animus, this Court found that the High Court was  justified  in dismissing the petition  without  issuing notice.  Dr. Singhvi submitted that precisely the  same  was the position in the instant case.     Reliance  was also placed on Sukhvinder Pal Bipan  Kumar v. State of Punjab & Ors., [1982] 2 SCR 31 where at page  40 of the report after dealing with the allegations in the writ petition,  this Court observed that the allegations  in  the writ petition were not sufficient to constitute an  averment of  mala  fides so as the vitiate the orders  of  suspension issued  in  that  case. In such a situation  the  court  was justified  in refusing to carry out investigation  into  the allegations  of mala fides if necessary particulars  of  the charge  making  a  prima facie case were not  there  in  the petition.  This  Court reiterated that burden of  mala  fide prima  facie lay very heavily on the person who alleged  it. There the petitioner sought to invalidate certain orders  of suspension  and  it was the onus on them  to  establish  the charge  of bad faith or misuse of its power by  the  govern- ment.     Halsbury’s  laws of England, Fourth Edition,  Volume  17 page 16 paragraph 19 deals with the standard of proof neces- sary  in  these types of cases. It has been stated  that  in civil cases the standard of proof is satisfied on a  balance

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of  probabilities. However, even within this formula,  there are variations depending upon the subject matter of  allega- tions. 481     About  the adverse remarks being made against the  erst- while  Chief Minister, we were reminded of the  observations of this Court in The State of Uttar Pradesh v. Mohammad Naim [1964]  SCR 2 363 where this Court reiterated that it  is  a principle  of cordinal importance in the  administration  of justice  that the power, freedom of judges  and  Magistrates must be maintained and they must be allowed to perform their functions freely and without  interference by any body, even by this Court. But it is equally necessary that in  express- ing their opinions, Judges and Magistrates must be guided by considerations of justice, fair-play and restriant. Judicial pronouncements  must be judicial in nature, and should’  not normally  depart from sobriety, moderation and  reserve.  In that case this Court found that the remarks in the  judgment in respect of the entire police force of the State were  not justified in the facts of the case, nor were they  necessary for the disposal of the case and should have been  expunged. We are clearly of the opinion that the principle  enunciated by  that  decision can have no application in the  facts  of this case. In the instant case, the first issue was  whether there was tampering of the gradesheet, a fact which has been found by the learned single judge and by the Division  Bench and  which is not in dispute in any of these appeals  before us. The other dispute was the allegation and the finding  of the learned single judge was that the same was at the behest of  the appellant in the first appeal and the respondent  in the  second  appeal, Nilangekar Patil, the  erstwhile  Chief Minister. This point was very much in issue. He was a party. He had been heard on this point. So, therefore, whether  the remarks were correct or not, is another issue but there was, no  question  of the remarks being beyond the issue  and  no question of the party against whom the remarks had been made had not been given an opportunity.     Our attention was drawn to the decision of this Court in Vineet Kumar v. Mangal Sain Wadhera AIR [1985] SC 817 in aid of the submission that additional evidence should have  been allowed  but  in our opinion the context in which  the  said observation was made was entirely different and cannot  have any relevance to the facts of this Case.     The  Privy  Counsil in The Bank of India and  Others  v. Jamesetji A.H. Chinoy and Messers. Chinoy and Co. AIR [1950] P.C.  90 reiterated that speculation is not enough to  bring home the charge of fraudulent conspiracy.     In a different context dealing with the election  matter in  Sri  Harasingh Charan Mohanty v. Sh.  Surendra  Mohanty, [1974] 3 SCC 680 the question arose was whether the  consent or  agency  was there. This Court observed that  consent  or agency of Shri Biju Patnaik could not be inferred from  mere close friendship or other relationship or political affilia- tion. However, close was the relationship, unless there  was evidence to prove that the person publishing or 482 writing the editorial was authorised by the returned  candi- date  or  he had undertaken to be responsible  for  all  the publications, no consent could be inferred. In our  opinion, the observations must be read in the context of the facts of that case.     Seth Gulabchand v. Seth Kudilal and Others [1966] 3  SCR 623  at 629] was a case under the Contract Act,  1872  where under section 3 of the Indian Evidence Act, 1872 applied the same standard of proof in all civil cases. There this  Court

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after  referring  to certain observations  referred  to  the observations  of  the Division Bench of  the  Calcutta  High Court in Jarat Kumari Dassi v. Bissesur. ILR 39 Cal.  245:16 C.W.N. 265. The Court thereafter referred to the  definition of  section  3 of the words ’proved’, ’disproved’  and  ’not proved’.  -Reference was made to the decision of  the  Patna High  Court  by Meredith, J. at page 630 in  Raja  Singh  v. Chaichoo  Singh AIR 1940 Patna 281 at 203 where it  was  ob- served  by Meredith, J. that it was well settled that  where fraud had to be inferred from the circumstances and was  not directly  proved,  those circumstances must be  such  as  to exclude  any other reasonable possibility. In  other  words, the  criterion was similar to that which was  applicable  to circumstancial  evidence in criminal cases. This  Court  ob- served that this Court was unable to agree with those obser- vations. In that case this Court observed in respect of  the allegation  that a party had accepted bribe in a civil  case did not convert it into a criminal case and ordinarily  rule of civil cases would apply.     Reliance was placed on the observations of this Court in the case of Niranjan Patnaik v. Sashibhushan Kur and Another (supra)  to which one of us (S. Natarajan, J.) was  a  party where  this  Court dealt with certain adverse  remarks  made against  the Minister. This Court reiterated that  the  High Court  and  this Court must be deemed to have power  to  see that the courts below do not unjustly and without any lawful excuse take away the character of a party or of a witness or of a counsel before it. The observations in that case in our opinion  are  inapplicable  in the instant  case.  There  an adverse  remark  had been made which the court found  to  be unjustified which was not relevant to the issue in point and the  party ’against whom such observations having been  made was not a party to the said proceedings but only a  witness. Our attention was also drawn to certain English eases  which have  been  noted by the Division Bench in the  order  under appeal  and it is not necessary for us to refer to these  in detail.     The Division Bench noted that this Court had in the case of  State  of  Uttar Pradesh v. Mohammad  Naim  (supra)  had exhaustively  dealt  with  the limitation  in  making  these remarks  i.e. (1) whether a party whose conduct in  question was  before  the court had an opportunity of  explaining  or defending himself; (2) whether there was evidence on  record hearing on that conduct 483 justifying the remarks; (3) whether it was necessary for the decision of the case as an integral part thereof to refer to that  conduct; and (4) the observations must be judicial  in nature. These tests, the Division Bench observed were satis- fied  in respect of the remarks made by the  learned  single judge.  The Division Bench was of the view that the  circum- stances  relied  before the learned single  judge  formed  a reasonable  and cogent basis for the adverse comment on  the conduct of the appellant herein in the first appeal.  Howev- er,  the Division Bench made it clear that it was merely  in the  nature of an adverse comment based on the  material  on record and at the hearing of a proceeding which involved the taking  of  evidence merely on affidavit. A  fuller  enquiry might  lead to a conclusion that the comment was not  justi- fied.  In that view of the matter the Division  Bench  asked the  learned  counsel  whether the appellant  in  the  first appeal desired that there’ should be a full-fledged  factual enquiry  into the charge of the grades of respondent  No.  4 having  been  altered as aforesaid. Such  enquiry,  however, must be done by a body, the Division Bench suggested,  nomi-

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nated by the Chief Justice of Bombay High Court. Counsel for the appellant in the first appeal before us made no  request for  such an enquiry, however, must be done by a  body,  the Division Bench suggested, nominated by the Chief Justice  of Bombay  High Court. Counsel for the an enquiry,  before  the High Court. In other words, he was not willing to invite  an enquiry to clear his image.     Shri Tarkunde, appearing on behalf of the respondent  in the first appeal and appellant in the second one,  submitted before  us  that there was sufficient  substantial  evidence before  the learned single judge to come to  the  conclusion that  the tampering was done at the behest of the  erstwhile Chief Minister of Maharashtra. He submitted it was a finding of  fact based on substantial evidence and there  was  clear material  on such evidence. He further submitted that  in  a matter  of  this nature where public interest  was  involved namely,  state  of affairs in the University  of  Bombay  in respect  of a high degree in the medicine and in  which  the conduct of the Chief Minister was involved, public  interest demanded  that the High Court should have  investigated  the matter  even though there might be some infirmities  in  the affidavit supporting the petition. He submitted that in this case  that  after the initiation of the  proceeding,  public interest  was involved and the High Court was  justified  in entertaining the application. He, therefore, submitted  that the second appeal arising out of Special Leave Petition  No. 10665  of 1986 should be allowed. He further submitted  that in  a case of this nature, additional evidence  should  have been admitted. It was further submitted by Mr.  Karanjawala, counsel, that even if this Court was inclined to accept that there was no distinction between a comment and a  conclusion of  fact in view of the facts disclosed in this  case,  this Court  in exercise of its judicial discretion under  article 136 of the 484 Constitution  should not interfere in the facts and  circum- stances  of  this case. He urged that neither the  cause  of justice  nor  public interest  demanded  interference  under Article 136 of the Constitution. It is true that exercise of the  power under article 136 of the Constitution is  discre- tionary.     There  is no question in this case of giving  any  clean chit  to  the appellant in the first appeal  before  us.  It leaves a great deal of suspicion that tampering was done  to please Shri Patil or at his behest. It is true that there is no  direct evidence. It is also true that there is  no  evi- dence  to  link him up with tampering. Tampering  is  estab- lished.  The relationship is established. The reluctance  to face  a  public enquiry is also  apparent.  Apparently  Shri Patil, though holding a public office does not believe  that "ceaser’s wife must be above suspicion". The erstwhile Chief Minister in respect of his conduct did not wish or invite an enquiry  to  be conducted by a body nominated by  the  Chief Justice of the High Court. The facts disclose a sorry  state of  affairs.  Attempt was made to pass the daughter  of  the erstwhile  Chief  Minister who had failed thrice  before  by tampering the record. The person who did it was an  employee of  the Corporation. It speaks of a sorry state  of  affairs and  though  there is no distinction between comment  and  a finding  and there is no legal basis for such a comment,  we substitute  the observations made by the aforesaid  observa- tions as herein.     This  Court  cannot be oblivious that there has  been  a steady  decline  of public standards or  public  morals  and public  morale.  It is necessary to cleanse public  life  in

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this country along with or even before cleaning the physical atmosphere. The pollution in our values and standards is  an equally  grave menace as the pollution of  the  environment. Where  such  situations cry out the Courts  should  not  and cannot remain mute and dumb.     In  that view of the matter, we dispose of the  two  ap- peals and application for adducing additional evidence  with the  observations made aforesaid. In the facts  and  circum- stances of this case, there will be no order as to costs. 485