A.R.
ANTULAY V. R.S. NAYAK & ANR [1988] INSC 123 (29 April 1988)
MUKHERJI SABYASACHI (J) MUKHARJI, SABYASACHI (J) RANGNATHAN, S.
VENKATACHALLIAH, M.N. (J) VENKATACHALLIAH, M.N. (J) MISRA RANGNATH
OZA, G.L. (J) RAY, B.C. (J)
CITATION: 1988 AIR 1531 1988 SCR Supl. (1) 1 1988 SCC (2) 602 JT
1988 (2) 325
ACT:
Constitution of India, 1950: Articles 13, 14, 21, 32 Prosecution
of appellant for offences under sections 161 and 165 I.P.C.-Trial
under Criminal Law Amendment Act, 1952 to be held by Special Judge
only-Supreme Court in its judgment directing trial to be held by High
Court Judge-Validity of Supreme Court Judgment-Whether infringement
of fundamental right of accused involved-Whether procedure
established by law violated-Power to create or enlarge jurisdiction-
Legislative in character.
Articles 32, 134, 136, 737, 139, 141 and 142-Powers of
review-Nature and scope of-Whether Supreme Court can review its
directions if they result in deprivation of fundamental rights of a
citizen-Whether Supreme Court can issue writ of certiorari to quash
judicial order passed by another Bench- Whether a larger Bench can
overrule or recall a decision of a smaller Bench.
Articles 140, 141, 142 and 145: Jurisdiction-Want of- Can be
established only by a superior court-No decision can be impeached
collatterally by any inferior court-Superior court can always correct
errors by petition or ex debito justitiae Judgments per
incuriam-Effect of.
Criminal Law (Amendment) Act, 1952: Sections 6 & 7- offences
under Act to be tried only by Special Judge-order of Supreme Court
transferring and directing trial by High Court Judge-Whether legally
authorised-Non-substante clause in s.7(1)-Effect of.
Criminal Procedure Code, 1973: Sections 374, 406 & 407-
Transfer of case-Power of transfer postulates that Court to which
transfer or withdrawal is. sought is competent to exercise
jurisdiction over case-Intra state transfer is within jurisdiction of
the appropriate High Court.
2 Practice and Procedure: Judgment of Supreme Court- Directions
issued in proceedings inter partes-Found bad in law or violative of
Articles 14 and 21 of the Constitution and principles of natural
justice Whether immune from correction even though they cause
prejudice and do injury.
Criminal Trial-Criminal Procedure Code, 1973-sec. 223- Whether an
accused can demand as of a right trial with co-accused.
lnterpretation of statutes-Words to be given normal meaning with
reference to context-Golden rule of interpretation-When to be
resorted to.
Legal Maxims: Actus curiae neminem gravabid-Coram non judice-Per
curiam-Ex debito justitiae-Nunc-Pro-tunc- Applicability of.
HEADNOTE:
The appellant was the Chief Minister of Maharashtra between June
9, 1980 and January 12, 1982, when he resigned that office in
deference to the judgment of High Court in a writ petition filed
against him, but continued as an MLA.
On August 9, 1982, respondent No. 1, a member of a political party
filed a complaint before a Special Judge against the appellant and
others for offences under ss. 161 and 165 of the Indian Penal Code
and s. 5 of the Criminal Law Amendment Act, 1952 and also under ss.
384 and 420 read with ss. 109 and 120B of the Indian Penal Code.
The Special Judge issued process to the appellant.
Later, the Special Judge over-ruled the objection of the appellant
to take cognizance of the offences on a private complaint, and to
issue process, in the absence of notification under s. 7(2) of the
Criminal Law Amendment Act, 1952, specifying as to which of the three
special Judges of the area should try such cases.
Against this, the appellant filed a revision application in the
High Court, which dismissed it subsequently. The appellant's Special
Leave Petition against this was dismissed by the Supreme Court which
held that the complaint filed by respondent No. 1 was clearly
maintainable and cognizance was properly taken of it.
During the pendency of the revision application in the High Court,
the State Government notified the Special Judge to try the off- 3
ences specified under s. 6(1) of the Act and appointed another
Special Judge, who discharged the appellant, holding that a member of
the Legislative Assembly was a public servant and there was no valid
sanction for prosecuting the appellant. Against this order of
discharge. respondent No. 1 filed a Criminal Revision Application in
the High Court, which was subsequently withdrawn to this Court.
On an appeal filed by respondent No. 1 directly under Article 136
of the Constitution against the order of discharge, the Supreme Court
held on 16.2.1984, that a member of the Legislative Assembly was not
a public servant, and set aside the order of the Special judge. The
Court observed that though nearly 2 1/2 years had rolled by since
prosecution against the accused, who was Chief Minister of a State,
was launched and his character and integrity came under cloud, the
case had not moved an inch further and that an expeditious trial was
primarily in the interest of the accused and mandate of Article 21.
It further observed that expeditious disposal of a criminal case was
in the interest of both the prosecution and the accused. It,
therefore, suo motu withdrew this special case and another one filed
against the appellant by another person and transferred them to the
High Court, with the request to the Chief Justice to assign these two
cases to a sitting Judge of the High Court, who should proceed to
expeditiously dispose of the cases, preferably by holding trial from
day to day.
Pursuant to the directions of this Court dated February 16, 1984
the Chief Justice of the High Court assigned the cases to one of the
Judges of that Court. The appellant appeared before him and raised an
objection that the case could be tried only by a Special Judge
appointed by the Government under the 1952 Act. The Judge rejected
this and other objections holding that he was bound by the order of
the Supreme Court .
Special Leave Petitions as well as a writ petition filed by the
appellant against the aforesaid decision were dismissed by this Court
on April 17, 1984, holding that the Judge was perfectly justified,
and indeed it was his duty to follow the decision of this Court which
was binding on him.
It also observed that the writ petition challenging the validity
of the order and judgment of this Court as nullity or otherwise could
not be entertained, and that the dismissal of the writ petition would
not prejudice the petitioner's right to approach this Court, with an
appropriate review petition or any other application, which he may be
entitled to in law.
4 Thereafter, the cases were transferred to another Special Judge,
who framed 21 charges and declined to frame 22 other charges proposed
by respondent No. 1. This Court allowed respondent No.1`s appeal by
special leave except in regard to three draft charges under s. 384
IPC, and requested the High Court to nominate another Judge to try
the cases.
The Judge, to whom the cases were transferred, framed 79 charges
against the appellant, and refused to proceed against the other named
conspirators.
Against the aforesaid order, the appellant filed a Special Leave
Petition before this Court questioning the jurisdiction of the
Special Judge to try the case in violation of the appellant's
fundamental rights conferred by Articles 14 and 21 and the provisions
of the Criminal Law Amendment Act of 1952. The appellant also filed a
Special Leave Petition against the decision of the Judge, holding
that none of the 79 charges framed against the accused required
sanction under s. 197(1) of the Cr. P.C., and a writ petition
challenging a portion of s. 197(1) as ultra vires Articles 14 and 21
of the Constitution.
This Court granted special leave in the Special Leave Petition
questioning the jurisdiction of the Special Judge to try the case and
stayed further proceedings in the High Court. It also issued notice
in the other Special Leave Petition and the writ petition, and
directed these to be tagged on to the appeal.
An application filed by respondent No. 1 for revocation of the
Special Leave was dismissed and the appeal was referred to a Bench of
seven Judges. The other Special Leave Petition and the writ petition
were delinked, to be heard after the disposal of the appeal.
In the appeal, two questions arose, namely, (1) whether the
directions given by this Court on 16th February, 1984, withdrawing
the special cases pending in the Court of Special Judge and
transferring the same to the High Court with the request to the Chief
Justice to assign these cases to a sitting Judge of that High Court
in breach of s. 7(1) of the Criminal Law Amendment Act, 1952 which
mandated that the offences, as in this case, should be tried only by
a Special Judge, thereby denying at least one right of appeal to the
appellant was violative of Articles 14 and 21 of the Constitution and
whether such direction were at all valid or legal and (2) if such
directions were not at all valid or legal in view of the Court's
order of April 17, 1984, whether the present 5 appeal was sustainable
or the grounds therein justiciable in these proceedings. In other
words, whether the said directions in a proceeding inter parties were
binding even if bad in law or violative of Articles 14 and 21 of the
Constitution and as such, immune from correction by this Court even
though they caused prejudice and injury.
Allowing the appeal, and setting aside and quashing all the
proceedings subsequent to the directions of the Court on 16.2.1984
and directing that the trial should proceed in accordance with law,
i.e. Criminal Law Amendment Act, 1952.
^ HELD:
Majority: Sabyasachi Mukharji, Oza and Natarajan, JJ.
Per Sabyasachi Mukharji. J:
1. Section 7(1) of the Criminal Law Amendment Act, 1952 creates a
condition which is sine qua non for the trial of offences under s.
6(1) of the said Act. The condition is that notwithstanding anything
contained in the Code of Criminal Procedure or any other law, the
said offences shall be triable by Special Judges only. The offences
specified under s. 6(1) of the 1952 Act are those punishable under
ss.
161, 162, 163, 164 and 165A of the Indian Penal Code and s.
5 of the Prevention of Corruption Act, 1947. [44B-C,49H,A]
Gurcharan Das Chadha v. State of Rajasthan, [1966] 2 S.C.R. 678
referred to.
Therefore, the order of this Court transferring the cases to the
High Court on 16th February, 1984 was not authorised by law. This
Court, by its directions could not confer jurisdiction on the High
Court to try any case, when it did not possess such jurisdiction
under the scheme of the 1952 Act. [49A-B] Kiran Singh and others v.
Chaman Paswan & Others, [1955] 1 SCR 117 at 121 and M. L. Sethi
v. R. P. Kapur, 1973 1 SCR 697 relied on.
2.1 The power to create or enlarge jurisdiction is legislative in
character, so also the power to confer a right of appeal or to take
away a right of appeal.
Parliament alone can do it by law. No Court, whether superior or
inferior or both combined can enlarge the jurisdiction of the Court
or divest a person of his rights of revision and appeal. [50E] 6 M.L.
Sethi v. R.P. Kapur, [1973] 1 SCR 697 and Raja Soap Factory v. S. P.
Shantara;, 1965 2 SCR 800 referred to.
Halsbury's Laws of England, 4th Vol.10 page at para 720 and Ammon
Rubinstein's Jurisdiction and Illegality, [1965] Edn. pp. 16-50
referred to.
2.2 Want of jurisdiction can be established solely by superior
court and in practice, no decision can be impeached collaterally by
any interior court, but the superior court can always correct its own
error brought to its notice either by way of petition or ex debito
justitiae.[50G] Rubinstein's jurisdiction and illegality(1965 Edn.)
referred to.
2.3 The distinction between an error which entails absence of
jurisdiction and an error made within the jurisdiction is so fine
that it is rapidly being eroded.
[69H.70A] Anismatic Ltd. v. Foreign Compensation Commissioner,
[1969] 1 All E.R.208 at 241 referred to.
This is not a case of collateral attack on judicial proceedings;
it is a case where the Court having no court superior to it rectifies
its own order. [69] The impugned directions were void because power
was not there for this Court to transfer a proceeding under the Act
of 1952 from one Special Judge to the High Court. [69G] The singling
out of the appellant for a speedier trial by the High Court for an
offence which the High Court had no jurisdiction to try under the Act
of 1952 was unwarranted, unprecedented and directions given by this
Court for the said purposes were not warranted. When that fact is
brought to the notice of the court, it must remedy the situation.
[51D-E]
2.4 In rectifying the error, no personal inhibitions should debar
this Court because no person should suffer by reason of any mistake
of this Court. Here no rule of res judicata would apply to prevent
this Court from entertaining the grievance and giving appropriate
directions.[51E-F] Soni Vrajlal Jethalal v. Soni Jadavji and Govindji
& Ors.. AIR 1972 Gujarat 148 approved.
7 In the earlier judgment, the points for setting aside the
decision did not include the question of withdrawal of the case from
the Court of Special Judge to the Supreme Court and transfer of it to
the High Court. Unless a plea in question is taken it cannot operate
as res judicata.[62G-H] Shivshankar Prasad Shah and others v Baikunth
Nath Singh and others, [1969] 1 S.C.C. 718; Bikan Mahuri and others
v. Mst. Bibi Walian and others, A.I.R. 1939 Patna 633; S.L. Kapoor v.
Jagmohan and others, [1981] 1 S.C.C.
746; Maneka Gandhi v. Union of India, [1978] 2 S.C.R. 621 at pages
674-681 and Bengal Immunity Co. Ltd. v. The State of Bihar and
others, [1955] 2 SCR 603 and 623 referred to.
3.1 Section 407 of the Criminal Procedure Code was subject to
over-riding mandate of s. 7(1) of the 1952 Act and, hence it does not
permit the High Court to withdraw a case for trial to itself from the
Court of Special Judge.[60D-E]
3.2 Article 134(1)(b) of the Constitution does not recognise in
every High Court power to withdraw for trial cases from any Court
subordinate to its authority. At least this Article cannot be
construed to mean that where power to withdraw is restricted, it can
be widened by virtue of Article 134(1)(b) of the Constitution.
[67B-C]
3.3 Where by a specific clause of a specific statute the power is
given for trial by the Special Judge only and transfer can be from
one such Judge to another Special Judge, there is no warrant to
suggest that the High Court has power to transfer Such a case from a
Judge under s. 6 of the Act of 1952 to itself. It is not a case of
exclusion of the superior Courts. [67C] In the facts of the instant
case, the criminal revision application which was pending before the
High Court even if it was deemed to be transferred to this Court
under Article 139A of the Constitution, it would not have vested this
Court with power larger than what is contained in s. 407 of Criminal
Procedure Code. Under s. 407 of the Criminal Procedure Code read with
the Criminal Law Amendment Act, the High Court could not transfer to
itself proceedings under ss. 6 and 7 of the said Act. This Court, by
transferring the proceedings tb itself, could not have acquired
larger jurisdiction. The fact that the objection was not raised
before this Court gave directions on 16th February, 1984 cannot
amount to any waiver. [161F-G] 8 Ledgard v. Bull, 131 A 134,
Meenakshi Naidoo v.
Subramaniya A Sastri, 141 A 160 referred to.
3.4 The Parliament did not grant to the Court the jurisdiction to
transfer a case to the High Court. However, as the superior Court is
deemed to have a general jurisdiction, the law presumes that the
Court acted within jurisdiction. [60G] In the instant case, the
presumption cannot be taken, firstly, because the question of
jurisdiction was not agitated before the Court; secondly, these
directions were given per incuriam and thirdly, the superior Court
alone can set aside an error in its directions when attention is
drawn to that error. This view is warranted only because of the
peculiar facts and circumstances of the present case. Here the trial
of a citizen in a Special Court under special jurisdiction is
involved; hence the liberty of the subject is involved. [60H,61A-B]
Kuchenmeister v. Home office, [1958] 1 Q.B. 496;
Attorney General v. Herman James Sillam, [1864] 10 H.L.C.
703 and Issacs v.Robertson, [1984] 3 A.I.R. 140 referred to.
Jurisdiction and Illegality by Amnon Rubinstein, [1965] Edn.
referred to.
4.1 Per incuriam are those decisions given in ignorance or forget
fulness of some inconsistent statutory provision or some authority
binding on the Court concerned so that in such cases some part of the
decision or some step in the reasoning on which it is based is found,
on that account to be demonstrably wrong. If a decision is given per
in curiam, the Court can ignore it. [52A-B, 53G] Morelle v. Wakeling,
[1955] 1 ALL ER 708; State of Orissa v. The Titaghur Paper Mills Co.
Ltd., [1985] 3 SCR 26 and Bengal Immunity Co. Ltd. v. State of Bihar
[1955] 2 SCR 603, 623 referred to.
In the instant case, when this Court gave directions on 16th
February 1984, for disposal of the case against the appellant by the
High Court, it was oblivious of the relevant provisions of the law
and the decision in Anwar Ali Sarkar's case, which is a binding
precedent [51G-H]
4.2 A Full Bench or a Constitution Bench decision was binding on
the Constitution Bench because it was a Bench of seven Judges. There
is 9 a hierarchy in this Court itself where larger Benches over-rule
smaller Benches which is the crystallised rule of law. [52E,F] State
of West Bengal v. Anwar Ali Sarkar, [1952] SCR 284; Nattulal v. Radhe
Lal, [1975] 1 SCR 127; Union of lndia and Anr. v. KS. Subramaniam,
[1977] 1 SCR 87 at p. 92; State of U.P. v. Ram Chandra Trivedi,
[1977] 1 SCR 462 at 473;
Halsbury's Laws of England, 4th Edn. Vol. 26 page 297, para 578
and page 300, relevant notes on 8.11 and 15; Dias on Jurisprudence,
5th Edn. pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd.
[1944] 2 AER 293 at 300; Moore v. Hewitt 1947 2 AER 270 at 272A;
Penny v. Mcholas, 1950 2 AER 92A and Javed Ahmed Abdul Hamid Pawala
v. State of Maharashtra, [1985] 2 SCR 8 referred to.
It was manifest to the Bench that exclusive jurisdiction created
under s. 7(1) of the 1952 Act read with s. 6 of the said Act, when
brought to the notice of the Court, precluded the exercise of power
under s. 407 of the Code. There was no argument, no submission and no
decision on this appeal at all. There was no prayer in the appeal
which was pending before this Court for such directions.
[59D-E] The order of this Court was clearly per incuriam. The
Court was not called upon to and did not, decide the express
limitation on the power conferred by s. 407 of the Code.
which includes offences by public servants mentioned in the 1952
Act to be over-ridden in the manner sought to be followed as a
consequential direction of this Court. This Court did not have
jurisdiction to transfer the case to itself. That will be evident
from an analysis of different provisions of the Code as well as the
1952 Act [50C-D] Therefore, in view of the clear provisions of s.
7(2) of the Act of 1952 and Articles 14 and 21 of the Constitution
these directions were legally wrong. [52C]
4.3 Though the previous statute is referred to in the other
judgment delivered on the same date, in connection with other
contentions, s. 7(1) was not referred to in respect of the impugned
directions. Hence these observations were indubitably per incuriam.
[66A] Miliangos v. George Frank (Textiles) Ltd, [1975] 3 All E.R. 801
at 821 referred to.
5. This Court is not powerless to correct its error which has the
10 effect of depriving a citizen of his fundamental rights and more
so, the A right to life and liberty. It can do so in exercise of its
inherent jurisdiction in any proceeding pending before it without
insisting on the formalities of a review application. [54A-B] Powers
of review can be exercised in a petition file under Article 136 or
Article 32 or under any other provision of the Constitution if the
Court is satisfied that its directions have resulted in the
deprivation of the fundamental rights of a citizen or any legal right
of the petitioner. [54B-C] The Supreme Court has the power to review
either under Article 137 or suo motu the directions given by this
Court.
[62E] Prem Chand Garg v. Excise Commissioner, U.P. Allahabad,
[1963] Suppl.1 SCR 885; Naresh Shridhar Mirajkar and others v. State
of Maharashtra and another, [1966] 3 S.C.R. 744 and Smt. Ujjam Bai v.
State of U.P., [1963] 1 S.C.R. 778;
Kailash Nath v. State of U.P. AIR 1957 (SC) 790; P.S.R.
Sadhananatham v. Arunachalam, [1980] 2 S.C.R. 873; Suk Das v.
Union Territory of Arunachal Pradesh, [1986] 2 S.C.C.
401; Asrumati Devi v. Kumar Rupendra Deb Raikot and others, [1953]
S.C.R. 1159; Satyadhyan Ghosal and others v. Smt.
Deorajin Debi and another, [1960] 3 S.C.R. 590; Sukhrani (dead) by
L.Rs. and others v. Hari Shanker and others, [1979] 3 S.C.R. 671 and
Bejoy Gopal Mukherji v. Pratul Chandra Ghose, [1953] S.C.R. 930
referred to.
6. It is also well settled that an elementary rule of justice is
that no party should suffer by mistake of the Court. [63B] Sastri
Yagnapurushadji and others v. Muldas Bhudardas Vaishya and another,
[1966] 3 S.C.R. 242; Jang Singh v.
Brijlal [1964] 2 S.C.R. 145;Bhajahari Mondal v.The State of West
Bengal, [1959] S.C.R. 1276 at 1284-1286 and Asgarali N.
Singaporawalle v. The State of Bombay 1957 S.C.R. 678 at 692
referred to.
It was a mistake of so great a magnitude that it deprives a man by
being treated differently of his fundamental right for defending
himself in a criminal trial in accordance with law. Therefore, when
the attention of the Court is drawn, the Court has always the power
and the obligation to correct it ex debito justitiae and treat the
second application by its inherent power, as a power of review to
correct the original mistake. [56C-D] The directions have been issued
without observing the principle of audi alteram partem.[53D] 11 This
Court is not debarred from re-opening this question and giving proper
directions and correcting the error in the present appeal. [53C] The
appellant should not suffer on account of the direction of this Court
based upon an error leading to conferment of jurisdiction. [53B]
7. The principle of finality on which Article 145(e) proceeds
applies to both judgments and orders made by the Supreme Court. But
directions given per incuriam in violation of certain constitutional
limitations and in derogation of the principles of natural justice
can always be remedied by the court ex debite justitiae. [68F-G] In
the instant case, this Court is correcting an irregularity committed
by the Court not on construction or misconstruction of a statute but
on non-perception of certain provisions and certain authorities which
would amount to derogation of the constitutional rights of the
citizen. [69C-D] Issacs v. Robertson, [1984] 3 A.E.R. 140 and Re
Recal Communications Ltd. Case, [1980] 2 A.E.R. 634 referred to.
8. No prejudice need be proved for enforcing the fundamental
rights. Violation of a fundamental right itself renders the impugned
action void. So also, the violation of the principles of natural
justice renders the act a nullity.[59H]
9.1 Four valuable rights of the appellant have been taken away by
the impugned directions.
i) The right to be tried by a Special Judge in accordance with the
procedure established by law and enacted by Parliament.
ii) The right of revision to the High Court under s. 9 of the
Criminal Law Amendment Act.
iii) The right of first appeal to the High Court under the same
section iv) The right to move the Supreme Court under Article 136
thereafter by way of a second appeal, if necessary.
The right of the appellant under Article 14 regarding equality 12
before the law and equal protection of law has been violated. The
appellant has also a right not to be singled out for special
treatment by a Special Court created for him alone. This right is
implicit in the right to equality.
[60A-C,62A-B] State of West Bengal v. Anwar Ali Sarkar, [1952] SCR
284 relied on.
The appellant has a further right under Article 21 of the
Constitution-a right to trial by a Special Judge under s. 7(1) of the
1952 Act which is the procedure established by law made by the
Parliament and a further right to move the High Court by way of
revision or first appeal under s. 9 of the said Act. He has also a
right not to suffer any order passed behind his back by a Court in
violation of the basic principles of natural justice. Directions
having been given in this case without hearing the appellant, though
the order was passed in the presence of the counsel for the
appellant, these are bad. [62B-Dl It is proper for this Court to act
ex debito justitiae, in favour of the fundamental rights of the
appellant. [62E] Nawabkhan Abbas Khan v. The State of Gujarat, [1974]
3 SCR 427 referred to.
9.2 There was prejudice to the accused in being singled out as a
special class of accused for a special dispensation witbout any room
for any appeal as of right and without power of revision to the High
Court. [67G] Romesh Chandra Arora v. The State, [1960] 1 SCR 924 at
927 distinguished.
9.3 The trial even of person holding public office though to be
made speedily must be done in accordance with the procedure estab
lished by law. The provisions of s. 6 read with s. 7 of the Act of
1952 in the facts and circumstances of this case is the procedure
established by law, and any deviation even by a judicial direction
will be negation of the rule of law. [68D-E] By judicial direction,
the rights and previliges of the accused have been curtailed without
any justification in law. [ 68B] State of West Bengal v. Anwar Ali
Sarkar, [1952] SCR 284 relied on.
13 Re: Special Courts Bill, [1978] 1979 2 SCR 476 referred to.
9.4 The right of appeal under s. 374 of the Cr. P.C. is confined
only to cases decided by the High Court in its Letters Patent
jurisdiction which in terms is extraordinary original criminal
jurisdiction' under clause 27 of Letters Patent. [63F] Kavasji
Pestonji Dalal v. Rustomji Sorabji Jamadar & Anr., AIR 1949 Bom.
42, Sunil Chandra Roy & Anr. v. The State AIR 1954 Cal. 305;
Sasadhar Acharjya & Anr. v. Sir Charles Tegart & Ors., [1935]
Cal. Weekly Notes1089;People insurance Co. Ltd. v. Sardul Singh
Caveeshgar & Ors. J AIR 1961 Punj. 87 and P.P. Front, New Delhi
v. K. K Birla.
[1984] Cr. L.J. 545 referred to.
9.5 By the time the Code of Criminal Procedure 1973 was framed,
Article 21 had not been interpreted so as to include one right of
appeal both on facts and law. [64C]
10. Words should normally be given their ordinary meaning bearing
in mind the context. It is only where the literal meaning is not
clear that one resorts to the golden rule of interpretation or the
mischief rule of interpretation. [66C] Sussex Peerage Claim, [1844]
11 Cl. & Fin. 85 at 143 referred to.
Cross: Statutory Interpretation, p. 36.
In view of the specific language used in s. 7 of the 1952 Act, it
is not necessary to consider whether the procedure for trial by
Special Judges under the Code has stood repealed or not. The concept
of repeal may have no application in this case. [66B]
11. No man is above the law, but at the same time, no man can be
denied his rights under the Constitution and the laws. He has a right
to be dealt with in accordance with the law and not in derogation of
it. [71B] This Court, in its anxiety to facilitate the parties to
have a speedy trial, gave direction on 16th February, 1984 without
conscious awareness of the exclusive jurisdiction of the Special
Courts under the 1952 Act and that being the only procedure
established by law, there can be no deviation from the terms of
Article 21 of the Constitution of India.
That is the only procedure under which it should have been guided.
[71B-C] 14 By reason of giving the impugned directions, this Court
had also unintentionally caused the appellant the denial of rights
under Article 14 of the Constitution by denying him the equal
protection of law by being singled out for a special procedure not
provided for by law. [71C-D] When these factors are brought to the
notice of this Court, even if there are any technicalities, this
Court should not feel shackled and decline to rectify that injustice;
or otherwise, the injustice noticed will remain forever a blot on
justice. [71D]
12.1 The basic fundamentals of the administration of justice are
simple. No man should suffer because of the mistake of Court. No man
should suffer a wrong by technical procedure of irregularities. Rules
or procedures are the hand-maids of justice and not the mistress of
the justice.
If a man has been wronged so long as it lies within the human
machinery of administration of justice that wrong must be remedied.
[72B-C]
12.2 The maxim "Actus Curiae Neminem Gravabit"-An act of
the Court shall prejudice no man-is founded upon justice and good
sense and affords a safe and certain guide for the administration of
the law. [71E] Alaxander Rodger v. The Comptoir Dlescompte De Paris
Cham Reports, Vol. III 1869-71 p. 465 at 475 referred to.
13. Purity of public life is one of the cardinal principles which
t. must be upheld as a matter of public policy. Allegations of legal
infractions and criminal infractions must be investigated in
accordance with law and procedure established under the Constitution.
[73B] Even if the accused has been wronged, if he is allowed to be
left in doubt that would cause more serious damage to him. Public
confidence in public administration should not be eroded any further.
One wrong cannot be remedied by another wrong. [73B] The legal wrong
that has been done to the appellant should be remedied and right
should be done. In doing so, no more further injury should be caused
to the public purpose.
[73C] The impugned directions were in deprival of the
Constitutional rights and contrary to the express provisions of the
Criminal Law 15 Amendment Act, 1952, in violation of the principles
of natural justice, and without precedent in the background of the
Act of 1952. The directions definitely deprived the appellant of
certain rights of appeal and revision and his rights under the
Constitution. [69F] Having regard to the enormity of the consequences
of the error to the appellant and by reason of the fact that the
directions were given suo motu, there is nothing which detracts the
power of the Court to review its judgment ex debito justitiae in case
injustice has been caused. No Court however high has jurisdiction to
give an order unwarranted by the Constitution. [70A-B] Ittavira
Mathai v. Varke,P Varkey and others, [1964] 1 SCR 495 referred to.
Bhatia Cooperative Housing Society Ltd. v. D.C. Patel, [1953] SCR
185 at 190 distinguished.
Since this Court infringed the Constitutional safeguards granted
to a citizen or to an accused, in giving the directions and injustice
results therefrom, it is just and proper for the Court to rectify and
recall that injustice in the peculiar facts and circumstances of this
case. Therefore, all the proceedings in the matter subsequent to the
directions of this Court on February 16, 1984, are set aside and
quashed and the trial should proceed in accordance with law, that is
to say, under the Act of 1952. [70C,73D-E] R.S. Nayak v. A.R.
Antulay, [1984] 2 SCR 495; A.R.
Antulay v. Ramdas Sriniwas Nayak and another, [1984] 2 SCR 914;
Abdul Rehman Antulay v. Union of India and others etc.
[1984] 3 SCR 482 at 483; Kailash Nath v. State of U.P., AIR 1957
SC 790; Sukdas v. Union Territory of Arunachal Pradesh Discretion to
Disobey by Mortimer R. Kadish and Sanford H.
Kadish pages 111 and 112 referred to.
Per Ranganath Misra, J. (Concurring)
14. Section 7(1) has clearly provided that offences specified in
sub-section (1) of s. 6 shall be triable by the Special Judge only
and has taken away the power of the courts established under the Code
of Criminal Procedure to try those offences. As long as s. 7 of the
Amending Act of 1952 holds the field it was not open to any court
including the Apex Court to act contrary to s. 7(1) of the Amending
Act.[81E-F] 16 State of West Bengal v. Anwar Ali Sarkar, 1952 SC R
284 referred to.
15. The power to transfer a case conferred by the Constitution or
by s. 406 of the Code of Criminal Procedure does not specifically
relate to the Special Court. Section 406 of the Code could be applied
on the principle that the Special Judge was a subordinate court for
transferring a case from one Special Judge to another Special Judge
because such a transfer would not contravene the mandate of s. 7(1)
of the Amending Act of 1952. While that may be so, the provisions for
transfer, do not authorise transfer of a case pending in the court of
a Special Judge first to the Supreme Court and then to the High Court
for trial. This Court did not possess the power to transfer the
proceedings from the Special Judge to the High Court. [81G-H,82A]
Raja Soap Factory v. S.P. Santharaj, [1965] 2 SC R 800 referred to.
16.1 It is the settled position in law that jurisdiction of courts
comes solely from the law of the land and cannot be exercised other
wise. [77E]
16.2 Jurisdiction can be exercised only when provided for either
in the Constitution or in the laws made by the Legislature.
Jurisdiction is thus the authority or power of the court to deal with
a matter and make an order carrying binding force in the facts. [77G]
17. By the change of forum of trial the accused has been pre
judiced. By this process he misses a forum of appeal because if the
trial was handled by a Special Judge, the first appeal would lie to
the High Court and a further appeal by special leave could come
before this Court. If the matter is tried by the High Court there
would be only one forum of appeal being this Court, whether as of
right or by way of special leave. [83H, 84A-B] 18. The transfer was a
suo motu direction of the court.
Since this particular aspect of the matter had not been argued and
counsel did not have an opportunity of pointing out the legal bar
against transfer, the Judges of this Court obviously did not take
note of the special provisions In s.
7(1) of the 1952 Act. If this position had been appropriately
placed, the direction for transfer from the court of exclusive
jurisdiction to the High Court would not have been made by the
Constitution Bench. It is appropriate to presume that this Court
never intends to act contrary to law. [82E-F] 17
19. One of the well-known principles of law is that decision made
by a competent court should be taken as final subject to further
proceedings contemplated by the law of procedure. In the absence of
any further proceedings, the direction of the Constitution Bench on
16th of February, 1984 became final and it is the obligation of
everyone to implement the direction of the apex Court. Such an order
of this Court should by all canons of judicial discipline he binding
on this Court as well and cannot be interfered with after attaining
finality. [84C-D]
20.1 It is a well-settled position in law that an act of the court
should not injure any of the suitors. [84F] Alexander Rodger v. The
Comptori D'Escompte De Paris, [1871] 3 PC 465 referred to.
20.2. Once it is found that the order of transfer by this Court
was not within jurisdiction by the direction of the transfer of the
proceedings made by this Court, the appellant should not suffer.
[85B]
20.3 This being the apex Court, no litigant has any opportunity of
approaching any higher forum to question its decisions. Once judicial
satisfaction is reached that the direction was not open to be made
and it is accepted as a mistake of the court, it is not only
appropriate but also the duty of the Court to rectify the mistake by
exercising inherent powers. A mistake of the Court can be corrected
by the Court itself without any fetters. In the present situation,
the Court's inherent powers can be exercised to remedy the mistake.
[87F,88B-C] Gujarat v. Ram Prakash [1970] 2 SCR 875; Alexander Rodger
v. The Comptori D'Escompte De Paris, [1871] 3 PC 465 and Krishna Deo
v. Radha Kissan, [1953] SCR 136; Debi v.
Habib lLR 35 All 331 and Murtaza v. Yasin. AIR 191 PC 857 referred
to.
20.4 The injustice done should be corrected by applying the
principle actus curiae neminem gravabit, an act of the court shall
prejudice no one.[88H]
20.5 To err is human. Courts including the apex one are no
exception. To own up the mistake when judicial satisfaction is
reached does not militate against its status or authority. Perhaps it
would enhance both. [89B]
21. If a mistake is detected and the apex Court is not able to 18
correct it with a view to doing justice for fear of being
misunderstood, the cause of justice is bound to suffer and for the
apex Court the apprehension would not be a valid consideration. This
Court, while administering justice, does not take into consideration
as to who is before it. Every litigant is entitled to the same
consideration and if an order is warranted in the interest of
justice, the status or influence of the accused cannot stand in the
way as a bar to the making of that order. [89F-G]
22. Finality of the orders is the rule. By directing recall of an
order, the well-settled propositions of law would not be set at
naught. Such a situation may not recur in the ordinary course of
judicial functioning and if there be one, certainly the Bench before
which it comes would appropriately deal with it. Nn strait jacket
formula can be laid down for judicial functioning particularly for
the apex Court. The apprehension that the decision to recall the
earlier decision may be used as a precedent to challenge judicial
orders of this Court is perhaps misplaced because those who are
familiar with the judicial functioning are aware of the limits and
they would not seek support from this case as a precedent. This Court
is sure that if precedent value is sought to be derived out of this
decision, the Court which is asked to use this as an instrument would
be alive to the peculiar facts and circumstances of the case in which
this order is being made.
[87H, 90A-B]
23. Under the Rules of the Court a review petition was not to be
heard in Court and was liable to be disposed of by circulation. In
these circumstances, the petition of appeal could not be taken as a
review petition. [87E]
24. Benches of this Court are not subordinate to larger Benches
thereof and certiorari is, therefore, not admissible for quashing of
the orders made on the judicial side of the Court. [85C] Naresh
Chandra Mirajkar & Ors. v. State of Maharashtra
Prem Chand Garg v. Excise Commissioner, U.P., Allahabad 1963 1 SCR
885 referred to.
25. Apart from the fact that the petition of review had to be
filed within 30 days-and here there has been inordinate delay-the
petition for review had to be placed before the same Bench and now
that two of the learned judges of that Constitution Bench are still
available, 19 it must have gone only before a Bench of five with
those two learned Judges. [87D-E]
26. It is time to sound a note of caution. This Court under its
Rules of Business ordinarily sits in divisions and not as a whole
one. Each Bench, whether small or large, exercises the powers vested
in the Court and decisions rendered by the Benches irrespective of
their size are considered as decisions of the Court. The practice has
developed that a larger Bench is entitled to overrule the decision of
a smaller Bench notwithstanding the fact that each of the decisions
is that of the Court. That principle, however, would not apply in the
present situation, and since this Court is sitting as a Bench of
Seven this Court is not entitled to reverse the decision of the
Constituffon Bench.
[89B-C]
27. Overruling when made by a larger Bench of an earlier decision
of a smaller one is intended to take away the precedent value of the
decision without affecting the binding effect of the decision in the
particular case. [89C] In the instant case, the appellant is,
therefore, not entitled to take advantage of the matter being before
a larger Bench. In fact, if it is a case of exercise of inherent
powers to rectify a mistake it was open even to a five-Judge Bench to
do that and it did not require a Bench larger than the Constitution
Bench for that purpose. [89D] Per Oza, J. (Supplementing)
28. The jurisdiction to try a case could only be conferred by law
enacted by the legislature and this Court could not confer
jurisdiction if it does not exist in law.
[90F]
29. No doubt a judgment or an order passed by this Court will not
be open to a writ of certiorari even if an error is apparent. But at
the same time, there should be no hesitation in correcting an error
in exercise of inherent jurisdiction if it comes to the notice of the
Court. [90D-E] In the instant case, it is this error which is sought
to be corrected, although it is being corrected after long lapse of
time. [90F] Per Ray,J.(Concurring) 20
30. The Jurisdiction or power to try and decide a cause is
conferred on the courts by the Law of the Lands enacted by the
Legislature or by the provisions of the Constitution and the court
cannot confer a jurisdiction on itself which is not provided in the
law and judicial order of this Court is not Emenable to a writ of
certiorari tor correcting any error in the judgment. However, since
the act of the court should not injure any of the suitors, the error
in question is sought to be corrected. after a lapse of more than
three years. [90H,91A-B] Per Venkatachaliah, J. (Dissenting)
31.1 The exclusiveness of jurisdiction uf the special judge under
s. 7(1) of 1952 Act depends on the construction to be placed on the
relevant statutory-provision. If on such a construction, however
erroneous it may be, the court holds that the operation of s. 407 Cr.
P.C. is not excluded, that interpretation will denude the plenitude
of the exclusivity claimed for the forum. To say that the court
usurped legislative powers and created a new jurisdiction and a new
forum ignores the basic concept of functioning of courts.
The power to interpret laws is the domain and function of courts.
[108D-E] Thomas v. Collins, 323 (1945) US 516 referred to.
31.2 The earlier decision proceeded on a construction of s. 7(1)
of the Act and s. 407 of Cr. P.C. This bench does not sit in appeal
over what the five Judge Bench said and proclaim how wrong they were.
This Bench is simply not entitled to embark, at a later stage, upon
an investigation of the correctness of the very decision. The same
bench can, of course, reconsider the matter under Article 137.
32.1 The expression "jurisdiction" or the power to
determine is a verbal cast of many colours. In the case of a
Tribunal, an error of law might become not merely an error m
jurisdiction but might partake of the character of an error of
jurisdiction. But, otherwise jurisdiction is a 'legal shelter', a
power to bind despite a possible error in the decision. [102C] 32.2.
In relation to the powers of superior courts, the familiar
distinction between jurisdictional issues and adjudicatory issues
approts priate to Tribunals of limited jurisdiction has no place.
[102A]
32.3 Before a superior court there is no distinction in the
quality of the decision-making-process respecting jurisdictional
questions on the one hand and adjudicatory issues or issues
pertaining to the merits, on the other.
[102B] 21
32.4 The existence of jurisdiction does not depend on the
correctness of its exercise. The authority to decide embodies a
privilege to bind despite error, a privilege which is inherent in and
indispensable to every judicial function. The characteristic
attribute of a judicial act is that it binds whether it be right or
it be wrong.
[102D] Mallikarjun v. Narhari, [1900] 27 I.A. 2 10 referred to.
Anismatic Ltd. v. Foreign Compensation Commission, [1969] 1 All ER
208 distinguished.
32.5 A finding of a superior court even on a question of its own
jurisdiction, however grossly erroneous it may otherwise be, is not a
nullity nor one which could at all be said to have been reached
without jurisdiction, susceptible to be ignored or to admit of any
collateral attack.
Otherwise, the adjudications of superior courts would be held up
to ridicule and the remedies generally arising from and considered
concomitants of such classification of judicial-errors would be so
seriously abused and expanded as to make a mockery of those
foundational principles essential to the stability of administration
of justice. [102G,103A]
32.6 The superior court has jurisdiction to determine its own
jurisdiction and an error in that determination does not make it an
error of jurisdiction. [103B] Holdsworth (History of English Law)
Vol. 6 page 239 and Rubinstein: Jurisdiction and Illegality referred
to.
Re Racal Communications Ltd. [1980] 2 All ER 634 and Issac v.
Robertson, [1984] 3 All ER 140 referred to.
32.7 Superior courts apart, even the ordinary civil courts of the
land have jurisdiction to decide questions of their own jurisdiction.
[105H] It would be wholly erroneous to characterise the directions
issued by the five Judge Bench as a nullity, amenable to be ignored
or so declared in a collateral attack. [106E]
33. A judgment, inter-parties, is final and concludes the parties.
[106F] Re Hastings (No. 3) [1969] 1 All ER 698; Daryao v.
State of UP, [1962] 1 SCR 574; Trilok Chand v. H.B. Munshi, [1969]
2 SCR 824 and 22 Shiv Nandan Paswan v. State of Bihar, [ 1987] 1 SCC
288 at 343 relied on
34.1 All accused persons cannot claim to be tried by the same
Judge. The discriminations inherent in the choice of one of the
concurrent jurisdictions are not brought about by an inanimate
statutory-rule or by executive fiat. The withdrawal of a case under
s. 407 is made by a conscious judicial act and is the result of
judicial discernment. If the law permits the withdrawal of the trial
to the High Court from a Special Judge, such a law enabling
withdrawal would not, prima facie, be bad as violation of Article 14.
[114G-H, 115A]
34.2 No doubt, the fundamental right under Article 14 has a very
high place in constitutional scale of values.
Before a person is deprived of his personal liberty, not only that
the procedure established by law must strictly be complied with and
not departed from to the disadvantage or detriment of the person but
also that the procedure for such deprivation of personal liberty must
be reasonable, fair and just. Article 21 imposes limitations upon the
procedure and requires it to conform to such standards of
reasonableness, fairness and justness as the Court acting as sentinel
of fundamental rights would in the context, consider necessary and
requisite. The Court will be the arbiter of the question whether the
procedure is reasonable, fair and just. [114D-F]
34.3 The five judge bench in the earlier case has held that such a
transfer is permissible under law. That decision had assumed
finality. The appeal to the principle in Anwar Ali's Sarcar's case,
in such a context would be out of place. [115A] State of West Bengal
v. Anwar Ali Sarkar, [1952] SCR 284 distinguished.
35. That a trial by a Judge of the High Court makes for added
re-assurance of justice, has been recognised in a number of judicial
pronouncements. The argument that a Judge of the High Court may not
necessarily possess the statutory- qualifications requisite for being
appointed as a Special Judge appears to be specious. A judge of the
High Court hears appeals arising from the decisions of the Special
Judge and exercises a jurisdiction which includes powers co-
extensive with that of the trial court. [115C-D]
36. The plea that transfer of the case to the High Court involves
the elimination of the appellant's right of appeal to the High Court
23 which he would otherwise have and that the appeal under Article
136 of the Constitution as of right cannot be accepted in view of s.
374, Cr. P.C. which provides such an appeal, as of right, when the
trial is held by the High Court. [117A-B]
37. Directions for transfer were issued on 16.2.1984 in the open
court in the presence of appellant's counsel at the time of
pronouncement of the judgment and counsel had the right and the
opportunity of making submission to the court as to the
permissibility or otherwise of the transfer. After the directions
were pronounced and before the order was signed, though there was
opportunity for the appellant's counsel to make submission in regard
to the alleged illegality or impropriety of the directions, appellant
did not utilise the same. That apart, even after being told by two
judicial orders that appellant, if aggrieved, may seek a review, he
did not do so. Even the grounds urged in the many subsequent
proceedings appellant took to get rid of the effect of the direction
do not appear to include the grievance that he had no opportunity of
being heard. [115F, G-H,116A-B] Therefore, where a party having had
an opportunity to raise a grievance in the earlier proceedings does
not do so and makes it a technicality later, he cannot be heard to
complain. [116B] Rules of natural justice embodies fairness in
action.
By all standards, they are great assurances of justice and
fairness. But they should not be Pushed to a breaking point.
[116F] R. v. Secretary of State for Home Deptt. ex-parte Mughal,
[1973] 3 All ER 796, referred to.
38.1 The circumstance that a decision is reached per- incuriam,
merely serves to denude the decision of its precedent-value. Such a
decision would not be binding as a judicial precedent. A co-ordinate
bench can discharge with it and decline to follow it. A larger bench
can over-rule such decision. When a previous decision is so overruled
it does not happen nor has the overruling bench any jurisdiction so
to do that the finality of the operative order, inter-parties, in the
previous decision is over- turned. In this context the word
'decision' means only the reason for the previous order and not the
operative-order in the previous decision, binding inter-parties. Even
if a previous decision is over- 24 ruled by a larger-bench, the
efficacy and binding nature, of the adjudication expressed in the
operative order remains undisturbed interparties. [119B-D]
38.2 Even if the earlier decision of the five judge bench is
perincuriam the operative part of the order cannot be interfered with
in the manner now sought to be done. That apart, the five judge bench
gave its reason. The reason may or may not be sufficient. There is
advertence to s. 7(1) of the 1952 Act and to exclusive jurisdiction
created thereunder. There is also reference to s. 407 of the Criminal
Procedure Code. [119D-E]
39.1 An erroneous decision must be as binding as a correct one. It
would be an unattainable ideal to require the binding effect of a
judgment to depend on its being correct in the absolute, for the test
of correctness would be resort to another Court the infallibility of
which is again subject to a similar further investigation. [101D-E]
39.2 However, motions to set aside the judgments are permitted
where a judgment was rendered in ignorance of the fact that u
necessary party had not been served at all, and was wrongly shown as
served or in ignorance of the fact that a necessary-party had died
and the estate was not represented, or where a judgment was obtained
by fraud, and it tended to prejudice a non-party, as in the case of
judgments in-rem such as for divorce, or jactitation or probate etc.
even a person, not eo-nomine a party to the proceedings, or where a
party has had no notice and a decree is made against him in which
case, the party is said to become entitled to relief ex-debito
justitiae, on proof of the fact that there was no service, since
there is no trial at all and the judgment is for default. [110C-F]
Cases of such frank failure of natural justice are obvious cases
where relief is granted as of right. [111A] Where a person is not
actually served out but is held erroneously, to have been served, he
can agitate that grievance only in that forum or in any further
proceeding therefrom. [111A] Issac v. Robertson, [1984] 3 All ER 140
distinguished.
Rajunder Narain Rae v. Bijai Govind Singh, 2 MIA 181, referred to.
25 D.M. Gordan: Actions to set aside judgment, [1961] 77 Law
quarterly Review 358 In the present case by the order dated 5.4.1984
a five judge bench set-out, what according to it was the legal basis
and source of jurisdiction to order transfer. On 17.4.1984
appellant's writ petition challenging that transfer as a nullity was
dismissed. These orders are not which appellant is entitled to have
set aside ex-debito justitiae by another Bench. [111C-D]
40. The pronouncements of every Division-Bench of this Court are
pronouncements of the Court itself. A larger bench, merely on the
strength of its numbers, cannot un-do the finality of the decisions
of Other division benches.
[108H]
41.1 The power to alter a decision by review must be expressly
conferred or necessarily inferred. The power of review and the
limitations on the power under Article 137 are implict recognitions
of what would, otherwise, be final and irrevocable. No appeal could
be made to the doctrine of inherent powers of the Court either.
Inherent powers do not confer, or constitute a source of jurisdiction
:. They are to be exercised in aid of a e that is already invested.
[120F-G]
41.2 If the decision suffers from an error, the only way to
correct it, is to go in Review under Article 137 read with order 40
Rule 1 framed under Article 145 before "as far as is
practicable" the same judges. This is not a matter merely of
some dispensable procedural 'form' but the requirement of substance.
[109A] In the instant case, the remedy of the appellant is recourse
to Article 137, no where else. This is both in good sense and good
law. [120G] Judicial proceedings of this Court are not subject to
writ jurisdiction thereof. [118H] Naresh Sridhar Mirajkar & Ors.
v. State of Maharashtra & Anr., [1966] 3 SCC 744 followed.
Prem Chand Garg v. Excise Commissioner, UP, [1963] 1 SCR 885,
referred to.
Kadesh & Kadesh: Discretion to Disobey, [1973] edn. P.
111, referred to.
26
42. The maxim Actus Curiae Neminem Gravabid had no application to
conscious conclusions reached in a judicial decision. The maxim is
not a source of a general power to reopen and rehear adjudication
which have otherwise assumed finality. The maximum operates in a
different and narrow area. The best illustration of the operation of
the maxim is provided by the application of the rule of
nunc-pro-tunc.
For instance, if owing to the delay in what the court should,
otherwise, have done earlier but did later, a party suffers owing to
events occurring in the interrugnum, the Court has the power to
remedy it. The area of operation of the maxim is, generally,
procedural. Errors in judicial findings, either of facts or law or
operative decisions consciously arrived at as a part of the
judicial-exercise cannot be interfered with by resort to this maxim.
[120B-C]
43. Those who do not put the teachings of experience and the
lessons of logic out of consideration would tell what inspires
confidence in the judiciary and what does not.
Judicial vacillations fall in the latter category and undermine
respect of the judiciary and judicial institutions, denuding thereby
respect for law and the confidence in the even handedness in the
administration of justice by Courts. [120E] This Court had,
therefore, the jurisdiction and power to with draw and transfer the
cases from Special Judge to the High Court, and the directions for
trial of the offences by a Special Judge are not void and these
directions could not be challenged in a collateral attack. This Court
had not created a new jurisdiction and usurped legislative power
violating the basic tenet of doctrine of separation of powers.
[99C-F, 114D, 106E]
44. An accused person cannot assert any right to a joint trial
with his co-accused. Normally it is the right of the prosecution to
decide whom it prosecutes. It can decline to array a person as a
co-accused and, instead examine him as a witness for the prosecution.
What weight is to be attached to that evidence, as it may smack of
the testimony of a guilty partner in crime, is a different matter.
Prosecution can enter Nolle proseque against any accused- person.
It can seek to withdraw a charge against an accused person. These
propositions are too well settled to require any further elaboration.
[98B-D] Choraria v. Maharashtra, [1969] 2 SCR 624, referred to.
In the instant case, the appellant cannot be heard to complain. Of
the so called co-conspirators some have been examined already as pro-
27 secution witnesses; some others proposed to be so examined;
and two others, had died in the interregnum. The appeal, on the
point, has no substance and would require to be dismissed. [98G] Per
Ranganathan, J. (partly concurring/dissenting)
45.1 The language of s. 7(1) of the 1952 Act places a definite
hurdle in the way of construing s. 407 of the Cr.
P.C. as overriding its provisions. In view of non-obstante clause
also, it cannot be held that the provisions of s. 407 of the 1973 Cr.
P.C. will override, or even operate consistently with, the provisions
of the 1952 Act.
Similarly, the power of transfer contained m clause 29 of the
letters Patent of the High Court cannot be exercised in a manner not
contemplated by s. 7(1) of the 1952 Act. [131D- E]
45.2 A power of transfer postulates that the court to which
transfer or withdrawal is sought is competent to exercise
jurisdiction over the case. [130F] Raja Soap Factory v. Shantaraj, [
1965] 2 SCR, relied on.
45.3 The power of transfer contained in the Code of Criminal
Procedure cannot be availed of to transfer a criminal case from a
Special Judge to any other criminal court or even to the High Court.
The case can be transferred only from one special judge to another
special judge; it cannot be transferred even to a High Court Judge
except where a High Court Judge is appointed as a Special Judge.
[130E-F] Gurcharan Das Chadha v. State of Rajasthan, [1966] 2 SCR,
referred to.
45.4 Not all the judges of the High Court (but only those elevated
from the State subordinate judiciary) would fulfil the qualifications
prescribed under s. 6(2) of the 1952 Act. Though there is nothing in
ss. 6 and 7 read together to preclude altogether the appointment of a
judge of the High Court fulfilling the above qualifications as a
special judge such is not the (atleast not the normal) contemplation
of the Act. The scheme of the Act, in particular the provisions
contained in ss. 8(3A) and 9, militate against this concept. [126C,
E] Hence, in the instant case apart from the fact that no appointment
of a High Court Judge, as a Special Judge, has in fact been made, it
is not possible to take the view that the statutory provisions permit
the 28 conferment of a jurisdiction to try this case on a High Court
Judge as a Special Judge. [126F]
45.5 The 1952 Act sought to expedite the trial of cases involving
public servants by the creation of courts presided over by
experienced special judges to be appointed by the State (government.
Effect is only 13 being given to the express and specific words used
in s. 7(1) and no question arises of any construction being
encouraged that is repugnant to the Cr. P.C. Or involves an implied
repeal, pro tanto, of its provisions. [132D. E]
46.1 The word "jurisdiction is a verbal coat of many colours.
" It is used in a wide and broad sense while dealing with
administrative or quasi-judicial tribunals and subordinate courts
over which the superior courts exercise a power of judicial review
and superintendence. Then it is only a question of "how much
latitude the court is prepared to allow" and "there is no
yardstick to determine the magnitude of the error other than the
opinion of the court.
" [158A-B] M. L. Sethi v. Kapur, [ 1973] I SCR 697, referred
to.
46.2 The Superior Courts, with unlimited jurisdiction are always
presumed to act with jurisdiction and unless it is clearly shown that
any particular order is patently one which could not, on any
conceivable view of its jurisdiction, have been passed by such court,
such an order can neither be ignored nor even recalled, annulled,
revoked or set aside in subsequent proceedings by the same court.
[158B-C ] Dhirendera Kumar v. Superintendent, [1955] I SCR 224;
Kiran Singh v. Chaman Paswan, AIK 1955 S.C.R. 117; Anisminic Ltd.
v. Foreign Compensation Commissioner, [1969] 2 A.C.
147; Badri Prasad v. Nagarmal, [1959] 1 Supp. S.C.R. 769;
Surajmul Nagarmul v. Triton Insurance Co. Ltd., [1924] L.R.
52 I.A. 126; Balai Chandra Hazra v. Shewdhari Jadhav, [1978] 3
S.C.R. 147; Ledgard v. Bull, L.R. 13 I.A. 134; Meenakshi Naidu v.
Subramaniya Sastri, L.R. 14 I.A. 140; Sukhrani v.
Hari Shankar, [1979] 3 S.C.R. 671; Re: Recal Communications Ltd.,
[1980] 2 AER 634 and lssacs v. Robertson, [1984] 3 AER 140. referred
to.
In the present case, the order passed is not one of patent lack of
jurisdiction. Though the direction in the order dated 16.2.1984
cannot be justified by reference to Article 142 of the Constitution
of s. 407 of the 1973 Cr.P.C., that is not an incontrovertible
position. It was 29 possible for another court to give a wider
interpretation to these provisions and come to the conclusion that
such an order could be made under those provisions. If this Court had
discussed the relevant provisions and specifically expressed such a
conclusion, it could not have been modified in subsequent proceedings
by this Bench merely because it was inclined to hold differently. The
mere fact that the direction was given, without an elaborate
discussion, cannot render it vulnerable to such review . [158D-F]
47. Unless the earlier order is vitiated by a patent lack of
jurisdiction or has resulted in grave injustice or has clearly
abridged the fundamental rights of the appellant, this Court should
not declare that an order passed by a five-Judge Bench is wrong, and
annul it. The present case cannot be brought within the narrow range
of exceptions which calls for such interference. [166E] The direction
issued by this Court in the impugned order cannot be said to be based
on a view which is manifestly incorrect, palpably absurd or patently
without jurisdiction. Whether it will be considered right or wrong by
a different Bench having a second-look at the issue is a totally
different thing. [167E]
48.1 The powers of the Supreme Court to transfer cases from one
court to another are to be found in Article 139-A of the Constitution
and s. 406 of the Cr.P.C. The provisions envisage either inter-state
transfers of cases i.e. from a court in one State to a court in
another State or the withdrawal of a case by the Supreme Court to
itself. Intra- State transfer among courts subordinate to a High
Court to inter-se or from a court subordinate to a High Court to the
High Court is within the jurisdiction of the appropriate High Court.
[133F-G]
48.2 The powers of the Supreme Court, in disposing of an appeal or
revision, are circumscribed by the scope of the proceedings before
it. [133H] In the instant case, the question of transfer was not put
in issue before the Supreme Court. The Court was hearing an appeal
from the order of discharge and connected matters.
There was no issue or controversy or discussion before it as to
the comparative merits of a trial before a special judge vis-a-vis
one before the High Court. There was only an oral request said to
have been made, admittedly after the judgment was announced. Wide as
the powers under Article 141 are, they do not envisage an order of
the type presently in question. [134A, C-D] K.M. Nanavati v. The
State of Bombay, [1961] SCR 497 distinguished.
30
48.3 If the provisions of the 1952 Act read with Article 139-A and
ss. 406-407 of the Cr.P.C. do not permit the transfer of the case
from a special judge to the High Court, that effect cannot be
achieved indirectly. In the circumstances of the case, the Supreme
Court cannot issue the impugned direction in exercise of the powers
under Article 142 or under s. 407 available to it as an appellate
court. [l34F] Hari v. Emperor, AIR 1935 PC 122, referred to.
The direction that the trial should be shifted to the High Court
can hardly be described as a consequential or incidental order. Such
a direction did not flow, as a necessary consequence of the
conclusion of the court on the issues and points debated before it.
Therefore, this Court was in error when it directed that the trial of
the case should be before a High Court Judge, in consequence of which
the appellant is being tried by a Court which has no jurisdiction-and
which cannot be empowered by the Supreme Court-to try him. The
continued trial before the High Court, therefore, infringes Article
21 of the Constitution. [135E- GI
49.1 Section 407 cannot be challenged under Article 14 as it is
based on a reasonable classification having relation to the objects
sought to be achieved. Though, in general, the trial of cases will be
by courts having the normal jurisdiction over them, the exigencies of
the situation may require that they be dealt with by some other court
for various reasons. Likewise, the nature of a case, the nature of
issues involved and other circumstances may render it more expedient,
effective, expeditious or desirable that the case should be tried by
a superior court or the High Court itself. [136E-F3]
49.2 The power of transfer and withdrawal contained in s. 407 of
the Cr.P.C. is one dictated by the requirements of justice and is,
indeed, but an aspect of the supervisory powers of a superior Court
over courts subordinate to it.
[136FJ]
49.3 A judicial discretion to transfer or withdraw is vested in
the highest court of the State and is made exercisable only in the
circumstances set out in the section. Such a power is not only
necessary and desirable but indispensable in the cause of the
administration of justice. The accused will continue to be tried by a
or equal or superior jurisdiction. [136G] The accused will,
therefore, suffer no prejudice by reason of the 31 application of s.
407. Even if there is a differential treatment which causes
prejudice, it is based on logical and acceptable considerations with
a view to promote the interests of justice. The transfer or
withdrawal of a case to another court or the High Court, in such
circumstances, can hardly be said to result in hostile discrimination
against the accused in such a case. [137A-B]
49.4 only a power of transfer is being exercised by the supreme
Court which is sought to be traced back to the power of the High
Court under s. 407. [137E] State v. Anwar Ali Sarkar, [1952] SCR 284,
distinguished.
Kathi Raning Rawat v. The State of Saurashtra, [1952] 3 SCR 435,
Re: Special Courts Bill, [1978] (1972) 2 SCR 476 and Shukla v. Delhi
Administration, [1980] 3 SCR 500, referred to.
50. l Where a case is withdrawn and tried by the Court, the High
Court will be conducting the trial in the exercise of its
extraordinary original criminal jurisdiction. Here though the
ordinary original criminal jurisdiction is vested in a subordinate
criminal court or special judge, a case is withdrawn by the High
Court to itself for trial. [139F, H] Madura Tirupparankundram etc. v.
Nikhan Sahib, 35 C.W.N. 1088; Kavasji Pestonji v. Rustomji Sorabji,
AIR 1949 Bombay 42; Sunil Chandra Roy and another v. The State, AIR
1954 Calcutta 305; Peoples Insurance Co. Ltd. v. Sardul Singh
Caveeshar and others, AIR 1961 Punjab 87 and People's Patriotic Front
v. K. K. Birla and others, [ 1984] Crl. L.J.
545, referred to.
50.2 In a withdrawn case, right of first appeal to the Supreme
Court against the order passed by the High Court will be available to
the accused under s. 374 of the 1973 Cr. P.C., and the accused has
the privilege of being tried in the first instance by the High Court
itself with a right to approach the apex Court by way of appeal. The
apprehension that the judgment in the trial by the High Court, will
be final, with only a chance of obtaining special leave under Article
136 is totally unfounded. The Supreme Court will consider any
petition presented under Article 136 in the light of the in built
requirements of Article 21 and dispose it of as if it were itself a
petition of appeal from the judgment. Therefore an accused tried
directly by the High Court by withdrawal of his case from a
subordinate court, has a right of appeal to the Supreme Court under
s. 374 of the Cr. P.C. The allegation of an in- 32 fringement of
Article 21 in such cases is, therefore, - unfounded. [140B-F]
Sadanathan v. Arunachalam, [1981] 2 SCR 673, distinguished.
50.3 The court to which the case has been transferred is a
superior court and in fact the High Court. However, the High Court
Judge is not a person to whom the trial of the case can be assigned
under s.7(1) of the 1952 Act. The circumstances that a much superior
forum is assigned to try a case than the one normally available
cannot by itself be treated as a "sufficient safeguard and a
good Substitute" for the normal forum and the rights available
under the normal procedure. [131G-H] Surajmal Mohta v. Vishwanath
Sastry, [1955] 1 SCR, referred to.
50.4 The accused here loses his right of coming up in revision or
appeal to the High Court from the interlocutory and final orders of
the trial court, and the right of having two courts subordinate court
and the High Court-adjudicate upon his contentions before bringing
the matter up in the Supreme Court. Though these are not such caps as
violate the fundamental rights of such an accused, they are
circumstances which create prejudice to the accused and may not be
Overlooked in adopting one construction of the statue in preference
to the other. [132A-B]
51.1 t It is true that the audi altarem partem rule is a basic
requirement of the rule of law. But the degree of compliance with
this rule and the extent or consequences flowing from failure to do
so will vary from case to case.
[168B] Nawabkhan Abbaskhan v. State, [1974] 3 SCR 427, referred
to.
In the instant case the appellant had been given no chance of
being heard before the impugned direction was given and it cannot be
said whether the Bench would have acted in the same way even if he
had been given such opportunity. However, in the circumstances of the
case. this is not a fit case to interfere with the earlier order on
that ground. [167H, 168A]
51.2 The rules of natural justice must not be stretched too far.
They should not be allowed to be exploited as a purely technical
weapon to undo a decision which does not in reality cause substantial
injustice and which, had the party been really aggrieved thereby,
could live been set right by immediate action. [169C] 33 R. v.
Secretary of State for Home Department ex parte Mughal, [1973] 3 All
ER 796, referred to.
The direction of 16.2.1984 cannot be said to have infringed the
fundamental rights of the appellant or caused any miscarriage of
justice. The appellant did know on 16.2.1984 that the judges were
giving such a direction and yet he did not protest. Perhaps he did
think that being tried by a High Court Judge would be more beneficial
to him, as indeed it was likely to be. That apart, several
opportunities were available for the appellant to set this right. He
did not move his little finger to obtain a variation of this
direction from this Court. He is approaching the Court nearly after
two years of his trial by the learned judge in the High Court.
Volumes of testimony have been recorded and numerous exhibits have
been admitted as evidence. Though the trial is only at the stage of
the framing of charges, the trial being according to the warrant
procedure, a lot of evidence has already gone in and if the
directions of this Court are re-called, it would wipe the slate
clean. To take the entire matter back at this stage to square No. 1
would be the very negation of the purpose of the 1952 Act to speed up
all such trials and would result in more injustice than justice from
an objective point of view.
[168G-H, 169A-B]
52.1 Situations can and do arise where this Court may be
constrained to recall or modify an order which has been passed by it
earlier and that when ex facie there is something radically wrong
with the earlier order, this Court may have to exercise its plenary
and inherent powers to recall the earlier order without considering
itself bound by the nice technicalities of the procedure for getting
this done. [163C]
52.2 Where a mlstake is committed by a subordinate court or a High
Court, there are ample powers in this Court to remedy the situation.
But where the mistake is in an earlier order of this Court, there is
no way of having it corrected except by approaching this Court.
Sometimes, the remedy sought can be brought within the four corners
of the procedural law in which event there can be hurdle in the way
of achieving the desired result. But the mere fact that, for some
reason, the conventional remedies are not available should not render
this Court powerless to give relief.
[163D-E] Ghulam Sarwar v. Union of India, [1965] 2 S.C.C. 271;
Soni Vrijlal Jethalal v. Soni Jadavji Govindji, AIR 1972 Guj. 148;
Jang Singh v. Brij Lal [1964] 2 S.C.R. 145 at p.
159; Bhagat Ram v. State, [1972] 2 S.C.C. 466 and State v.
Tara Chand, [1973] S.C.C. Cr. 774, referred to.
34
52.3 lt may not be possible or prudent to lay down comprehensive
list of defects that will attract the ex debito justiae relief.
[163E]
52.4 Suffice it to say that the court can grant relief where there
is some manifest illegality or want of jurisdiction in the earlier
order or some palpable in Justice is shown to have resulted. Such a
power can be traced either to Article 142 of the Constitution or to
the powers inherent in this Court as the apex Court and the guardian
of the Constitution. [163F] Issac v. Robertson, [1984] 3 AER 140.
referred to.
52.5 However, such power has to be exercised in the "rarest
of rare" cases and there is great need for judicial discipline
of the highest order in exercising such a power, as any laxity in
this regard may not only impair the eminence, dignity and integrity
of this Court but may also lead to chaotic consequences. Nothing
should be done to create an impression that this Court can be easily
persuaded to alter its views on any matter and that a larger Bench of
the Court will not only be able to reverse the precedential effect of
an earlier ruling but may also be inclined to go back on it and
render it ineffective in its application and binding nature even in
regard to subsequent proceedings in the same case. [163G-H 164A]
Bengal Immunity Company Ltd. v. The State of Bihar and ors., [1953] 2
SCR 603 and Sheonandan Paswan v. State of Bihar & Ors., [1987] 1
SCR 288, referred to.
53. The power of review is conferred on this Court by Article 137
of the Constitution. It is subject not on to the provisions of any
law made by Parliament but also to rules made by this Court under
article 145. [142H] The order dated 16.2.1984 does not suffer from
any error apparent on the face of the record which can be rectified
on a review application. The prayer for review has been made beyond
the period mentioned in Rule 2 of order XL of the Supreme Court
Rules. No doubt this Court has power to extend the time within which
a review petition may be filed.
But having regard to the circumstances of the case there is hardly
any reason to condone the delay in the prayer for review.
[144A-B,143B,147H] The appellant was alive to all his present
contentions.
At least when the writ petition was dismissed as an inappropriate
remedy, he should have at once moved this Court for review. [148A] 35
That apart even if the Court is inclined to condone the delay, the
application will have to be heard as far as possible by the same
Judges who disposed of the earlier matter. [148B]
54. It will not behove the prestige and glory of this Court as
envisaged under the Constitution if earlier decisions are revised or
recalled solely because a later Bench takes a different view of the
issues involved.
Granting that the power of review is available, it is one to be
sparingly exercised only in extraordinary or emergent situations when
there can be no two opinions about the error or lack of jurisdiction
in the earlier order and there are adequate reasons to invoke a
resort to an unconventional method of recalling or revoking the same.
Such a situation is not present in the instant case. [167F-G]
55. Prem Chand Garg cannot be treated as an authority for the
proposition that an earlier order of this Court could be quashed by
the issue of a writ on the ground that it violated the fundamental
rights. Mirajkar clearly precludes such a course. [155G-H] Prem Chand
Garg v. Excise Commissioner, [1963] Supp. 1 SCR 885, explained and
distinguished.
Naresh Shridhar Mirajkar and others v. State of Maharashtra and
another. [1966] SCR 744 relied on.
The direction issued by this Court was not warranted in law, being
contrary to the special provisions of the 1952 Act, was also not in
conformity with the principles of natural justice and that unless the
direction can be justified with reference to s. 407 of the Cr.P.C.,
the petitioner's fundamental rights under Articles 14 and 21 of the
Constitution can be said to have been infringed by reason of this
direction. [142C] However, this is not one of those cases in which it
is considered appropriate to recall the earlier direction and order a
re-trial of the appellant de novo before a Special Judge. [169D] &
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
468 of 1986.
From the Judgement and order dated 24.7.86 of the Bombay High
Court in Special Cash No. 24/82.
P.P. Rao, R.D. Ovlekar. M.N. Dwevedi (Not in WP. No.
542) 36 Sulman Khurshid, N.V. Pradhan, D.R. Gadgil, R.S. Desai,
M.N.
Shroff K.V. Sreekumar and P.S. Pradhan for the Petitioner Ram
Jethmalani, Miss Rani Jethmalani and Ashok Sharma for the
Respondents.
A.M. Khanwilkar and A.S.Bhasme for the Respondents- State.
The majority Judgment of Sabyasachi Mukharji, G.L. Oza and S.
Natarajan, JJ. was delivered by Mukharji, J.
Ranganath Misra and B.C. Ray, JJ. gave separate concurring
opinions. G.L. Oza, J. also gave a separate opinion. M.N.
Venkatachaliah, J. delivered a dissenting opinion S.
Ranganathan, j was a partly concurring and partly dissenting
opinion:
SABYASACHI MUKHARJI, J. The main question involved in this appeal,
is whether the directions given by this Court on 16th February, 1984.
as reported in R.S. Nayak v. A.R.
Antulay,[1984] 2 S.C.R. 495 at 557 were legally proper. The next
question is, whether the action and the trial proceedings pursuant to
those directions, are legal and valid. Lastly, the third
consequential question is, can those directions be recalled or set
aside or annulled in those proceedings in the manner sought for by
the appellant.
In order to answer these questions certain facts have to be borne
in mind.
The appellant became the Chief Minister of Maharashtra on or about
9th of June, 1980. On 1st of September, 1981, respondent No. 1 who is
a member of the Bharatiya Janta Party applied to the Governor of the
State under section 197 of the Criminal Procedure Code, 1973
(hereinafter referred to as the Code) and section 6 of the Prevention
of Corruption Act, 1947 (hereinafter referred to as the Act) for
sanction to prosecute the appellant. On 11th of September, 1981,
respondent No. 1 filed a complaint before the Additional Metropolitan
Magistrate, Bombay against the appellant and other known and unknown
persons for alleged offence under sections 161 and 165 of the Indian
Penal Code and section 5 of the Act as also under sections 384 and
420 read with sections 109 and 120B of the Indian Penal Code.
The learned Magistrate refused to take cognizance of the offences
under the Act without the sanction for prosecution.
Thereafter a criminal revision application being C.R.A. No.
1742 of 1981 was filed in the High Court of Bombay, by respondent
No. 1.
37 The appellant thereafter on 12th of January, 1982 resigned from
the position of Chief Minister in deference to the judgment of the
Bombay High Court in a writ petition filed against him. In CRA No.
1742 of 1981 filed by respondent No. 1 the Division Bench of the High
Court held that sanction was necessary for the prosecution of the
appellant and the High Court rejected the request of respondent No. 1
to transfer the case from the Court of the Additional Chief
Metropolitan Magistrate to itself.
On 28th of July, 1982, the Governor of Maharashtra granted
sanction under section 197 of the Code and section 6 of the Act in
respect of five items relating to three subjects only and refused
sanction in respect of all other items.
Respondent No. 1 on 9th of August, 1982 filed a fresh complaint
against the appellant before the learned Special Judge bringing in
many more allegations including those for which sanction was refused
by the Governor. It was registered as a Special Case No. 24 of 1982.
It was submitted by respondent No. 1 that there was no necessity of
any sanction since the appellant had ceased to be a public servant
after his resignation as Chief Minister.
The Special Judge, Shri P.S. Bhutta issued process to the
appellant without relying on the sanction order dated 28th of July,
1982. On 20th of October, 1982, Shri P.S.
Bhutta overruled the appellants objection to his jurisdiction to
take cognizance of the complaint and to issue process in the absence
of a notification under section 7(2) of the Criminal Law Amendment
Act, 1952 (hereinafter referred to as 1952 Act) specifying which of
the three Special Judges of the area should try such cases.
The State Government on 15th of January, 1983 notified the
appointment of Shri R.B. Sule as the Special Judge to try the
offences specified under section 6(1) of the 1952 Act. On or about
25th of July 1983, it appears that Shri R.B. Sule, Special Judge
discharged the appellant holding that a member of the Legislative
Assembly is a public servant and there was no valid sanction for
prosecuting the appellant.
On 16th of February, 1984, in an appeal filed by respondent No. 1
directly under Article 136, a Constitution Bench of this Court held
that a member of the Legislative Assembly is not a public servant and
set aside the order of Special Judge Sule. Instead of remanding the
38 case to the Special Judge for disposal in accordance with law,
this Court suo motu withdrew the Special Cases No.
24/82 and 3/83 (arising out of a complaint filed by one P.B.
Samant) pending in the Court of Special Judge, Greater Bombay,
Shri R.B. Sule and transferred the same to the Bombay High Court with
a request to the learned Chief Justice to assign these two cases to a
sitting Judge of the High Court for holding the trial from day to
day. These directions were given, according to the appellant, without
any pleadings, without any arguments, without any such prayer from
either side and without giving any opportunity to the appellant to
make his submissions before issuing the same. It was submitted that
the appellant's right to be tried by a competent court according to
the procedure established by law enacted by Parliament and his rights
of appeal and revision to the High Court under section 9 of the 1952
Act had been taken away.
The directions of this Court mentioned hereinbefore are contained
in the decision of this Court in R.S. Nayak v.
A.R. Antulay, [1984] 2 S.C.R. 495 at 557. There the Court was
mainly concerned with whether sanction to prosecute was necessary. It
was held that no such sanction was necessary in the facts and
circumstances of the case. This Court further gave the following
directions:
"The accused was the Chief Minister of a premier State- the
State of Maharashtra. By a prosecution launched as early 'as on
September 11, 1981, his character and integrity came under a cloud.
Nearly two and a half years have rolled by and the case has not moved
an inch further. An expeditious trial is primarily in the interest of
the accused and a mandate of Article 21. Expeditious disposal of a
criminal case is in the interest of both the prosecution and - the
accused. Therefore, Special Case No. 24 of 1982 and Special Case No.
3/83 pending in the Court of Special judge, Greater Bombay Shri R.B.
Sule are withdrawn and transferred to the High Court of Bombay with a
request to the learned Chief Justice to assign these two cases to a
sitting Judge of the High Court. On being so assigned, the learned
Judge may proceed to expeditiously dispose of the cases preferably by
holding the trial from day to day." The appellant as mentioned
hereinbefore had appeared before the Special Judge and objected to
the jurisdiction of the learned Judge on the ground that the case had
not been properly allocated to him by the State Government. The
Special Judge Bhutta after hearing 39 the parties had decided the
case was validly filed before him and he had properly taken
cognizance. He based his order on the construction of the
notification of allocation which was in force at that time. Against
the order of the learned Special Judge rejecting the appellant's
contention, the appellant filed a revision application in the High
Court of Bombay. During the pendency of the said revision
application, the Government of Maharashtra issued a notification
appointed Special Judge R.B. Sule, as the Judge of the special case.
it is the contention of the respondents before us that the appellant
thereafter did not raise any further objection in the High Court
against cognizance being taken by Shri Bhutta. It is important to
take note of this contention because one of the points urged by Shri
Rao on behalf of the appellant was that not only we should set aside
the trial before the High Court as being without jurisdiction but we
should direct that no further trial should take place before the
Special Judge because the appellant has suffered a lot of which we
shall mention later but also because cognizance of the offences had
not been taken properly. In order to meet the submission that
cognizance of the offences had not been taken properly, it was urged
by Shri Jethmalani that after the Government Notification appointing
Judge Sule as the Special Judge, the objection that cognizance of the
offences could not be taken by Shri Bhutta was not agitated any
further. The other objections that the appellant raised against the
order passed by Judge Bhutta were dismissed by the High Court of
Bombay. Against the order of the Bombay High Court the appellant
filed a petition under Article 136 of the constitution. The appeal
after grant of leave was dismissed by a judgment delivered on 16th
February, 1984 by this Court in A.R. Antulay v. Ramdas Sriniwas Nayak
and another, [1984] 2 S C.R. 914. There at page 954 of the report,
this Court categorically observed that a private complaint filed by
the complaint was clearly maintainable and that the cognizance was
properly taken. This was the point at issue in that appeal. This was
decided against the appellant. On this aspect therefore, the other
point is open to the appellant.
We are of the opinion that this observation of this Court cannot
by any stretch of imagination be considered to be without
jurisdiction. Therefore, this decision of this Court precludes any
scope for argument about the validity of the cognizance taken by
Special Judge Bhutta. Furthermore, the case had proceeded further
before the Special Judge, Shri Sule and the learned Judge passed an
order of discharge on 25th July, 1983. This order was set aside by
the Constitution Bench of this Court on 16th February, 1984, in the
connected judgment (vide 1984 2 S.C.R. 495). The order of taking
cognizance had therefore become final and cannot be reagitated.
Moreover section 460(e) of the Code expressly provides that if any
Magistrate not empowered by law 40 to take cognizance of an offence
on a complaint under section 190 of the Code erroneously in good
faith does so his proceedings shall not be set aside merely on the
ground that he was not so empowered.
Pursuant to the directions of this Court dated 16th February,
1984, on 1st of March, 1984, the Chief Justice of the Bombay High
Court assigned the cases to S.N. Khatri, J.
The appellant, it is contended before us, appeared before Khatri,
J. and had raised an objection that the case could be tried by a
Special Judge only appointed by the Government under the 1952 Act.
Khatri, J. On 13th of March, 1984, refused to entertain the
appellant's objection to jurisdiction holding that he was bound by
the order of this Court. There was another order passed on 16th of
March, 1984 whereby Khatri, J. dealt with the other contentions
raised as to his jurisdiction and rejected the objections of the
appellant.
Being aggrieved the appellant came up before this Court by filing
special leave petitions as well as writ petition.
This Court on 17th April, 1984, in Abdul Rehman Antulay v.
Union of India and others etc., [1984] 3 S.C.R. 482 at 483 held
that the learned Judge was perfectly justified and indeed it was the
duty of the learned Judge to follow the decision of this Court which
was binding on him. This Court in dismissing the writ petition
observed, inter alia, as follows:
"In my view, the writ petition challenging the validity of
the order and judgment passed by this Court as nullity or otherwise
incorrect cannot be entertained. I wish to make it clear that the
dismissal of this writ petition will not pre judice the right of the
petitioner, to approach the Court with an appropriate review petition
or to file any other application which he may be entitled in law to
file." D.N. Mehta, J. to whom the cases were transferred from
Khatri, J. framed charges under 21 heads and declined to frame
charges under 22 other heads proposed by respondent No. 1. This Court
allowed the appeal by special leave preferred by respondent No. 1
except in regard to three draft charges under section 384, I.P.C.
(extortion) and directed the Court below to frame charges with regard
to all other offences alleged. This Court requested the Chief Justice
of the Bombay High Court to nominate another Judge in place of D.N.
Mehta, J. to take up the trial and proceed expeditiously to dispose
of the case finally. See in this connection R. S. Nayak v. A .R.
Antulay and another, [1986] 2 S.C.C. 716.
41 P.S. Shah, J. to whom the cases were referred to from D.N.
Mehta, J. On 24th of July, 1986 proceeded to frame as many as 79 A
charges against the appellant and decided not to proceed against the
other named co-conspirators. This is the order impugned before us.
Being aggrieved by the aforesaid order the appellant filed the
present Special leave Petition (Crl.) No. 2519 of 1986 questioning
the jurisdiction to try the case in violation of the appellant's
fundamental rights conferred by Articles 14 and 21 and the provisions
of the Act of 1952. The appellant also filed Special leave Petition
(Crl.) No. 2518 of 1986 against the judgment and order dated 21st of
August, 1986 of P.S. Shah, J. holding that none of the 79 charges
framed against the accused required sanction under section 197(1) of
the Code.
The appellant also filed a Writ Petition No. 542 of 1986
challenging a portion of section 197(1) of Code as ultra vires
Articles 14 and 21 of the Constitution.
This Court granted leave in Special Leave Petition (Crl. ) No.
2519 of 1986 after hearing respondent No. 1 and stayed further
proceedings in the High Court. This Court issued notice in Special
Leave Petition (Crl.) No. 2518 and Writ Petition (Crl.) No. 542 of
1986 and directed these to be tagged on with the appeal arising out
of Special Leave Petition (Crl. ) No. 2519 of 1986.
On 11th of October, 1986 the appellant filed a Criminal
Miscellaneous Petition for permission to urge certain additional
grounds in support of the plea that the origination of the
proceedings before the Court of Shri P.S.
Bhutta, Special Judge and the process issued to the appellant were
illegal and void ab initio.
This Court on 29th October, 1986 dismissed the application for
revocation of special leave petition filed by respondent No. 1 and
referred the appeal to a Bench of 7 Judges of this Court and
indicated the points in the note appended to the order for
consideration of this Bench.
So far as SLP (Crl.) No. 2518/86 against the judgment and order
dated 21st August, 1986 of P.S. Shah, J. Of the Bombay High Court
about the absence of sanction under section 197 of the Code is
concerned, we have by an order dated 3rd February, 1988 delinked that
special leave petition inasmuch as the same involved confederation of
an independent question and directed that the special leave petition
should be heard by any appropriate Bench after disposal of this
appeal, Similarly, Writ Petition (Crl.) No.
542 of 1986 challenging a H 42 portion of section 197(1) of the
Criminal Procedure Code as ultra vires Articles 14 and 21 of the
Constitution had also to be delinked by our order dated 3rd February,
1988 to be heard along with special leave petition no 2518 of 1986.
This judgment therefore, does not cover these two matters.
In this appeal two questions arise, namely, (1) whether the
directions given by this Court on 16th of February, 1984 in R.S.
Nayak v. A.R. Antulay, [1984] 2 S.C.R. 495 withdrawing the Special
Case No. 24/82 and Special Case No.
3/83 arising out of the complaint filed by one shri P.B.
Samant pending in the Court of Special Judge, Greater Bombay, Shri
R.B. Sule, and transferring the same to the High Court of Bombay with
a request to the Chief Justice to assign these two cases to a sitting
Judge of the High Court, in breach of section 7(1) of the Act of 1952
which mandates that offences as in this case shall be tried by a
Special Judge only thereby denying at least one right of appeal to
the appellant was violative of Articles 14 and 21 of the Constitution
and whether such directions were at all valid or legal and (2) if
such directions were not at all valid or legal in view. Of the order
dated 17th. Of April, 1984 referred to hereinbefore, is this appeal
sustainable or the grounds therein justiciable in these proceedings.
In other words,- are 711 the said directions in a proceedings inter-
parties binding even if bad in law or violative of Articles 14 and 21
of the Constitution and as such are immune from correction by this
Court even though they cause prejudice and do injury? These are the
basic questions which this Court must answer in this appeal.
The contention that has been canvassed before us was that save as
provided in sub-section (1) of section 9 of the Code the provisions
thereof corresponding to section 9(1) of the Criminal Procedure Code,
1898) shall so far as they are not inconsistent with the Act apply to
the proceedings before the Special Judge and for purposes of the said
provisions the Court of the Special Judge shall be deemed to be a
Court of Session trying cases without a jury or without the aid of
assessors and the person conducting the prosecution before a Special
Judge shall be deemed to be a public prosecutor. It was submitted
'before us that it was a private complaint and the prosecutor was not
the public prosecutor. This was another infirmity which this trial
suffered, it was pointed out. In the background of the main issues
involved in this appeal we do not propose to deal with this
subsidiary point which is of not any significance.
The only question with which we are concerned in this appeal is,
43 whether the case which is triable under the 1952 Act only by a
Special Judge appointed under section 6 of the said Act could be
transferred to the High Court for trial by itself or by this Court to
the High Court for trial by it. Section 406 of the Code deals with
transfer of criminal cases and provides power to this Court to
transfer cases and appeals whenever it is made to appear to this
Court that an order under this section is expedient for the ends of
justice. The law provides that this Court may direct that any
particular case or appeal be transferred from one High Court to
another High Court or from a Criminal Court subordinate to one High
Court to another Criminal Court of equal or superior jurisdiction
subordinate to another High Court. Equally section 407 deals with the
power of High Court to transfer cases and appeals. Under section 6 of
the 1952 Act, the State Government is authorised to appoint as many
Special Judges as may be necessary for such area or areas for
specified offences including offences under the Act. Section 7 of the
1952 Act deals with cases triable by Special Judges. The question,
therefore, is whether this Court under section 406 of the Code could
have transferred a case which was triable only by a Special Judge to
be tried by the High Court or even if an application had been made to
this Court under section 406 of the Code to transfer the case triable
by a Special Judge to another Special Judge could that be transferred
to a High Court, for trial by it. It was contended by Shri Rao that
the jurisdiction to entertain and try cases is conferred either by
the Constitution or by the laws made by Parliament. He referred us to
the powers of this Court under Articles 32, 131, 137, 138, 140, 142
and 145(1) of the Constitution. He also referred to Entry 77 of List
I of the Constitution which deals with the constitution of the
courts. He further submitted that the appellant has a right to be
tried in accordance with law. and no procedure which will deny the
equal protection of law can be invented and any order passed by this
Court which will deny equal protection of laws would be an order
which is void by virtue of Article 13(2) of the Constitution. He
referred us to the previous order of this Court directing the
transfer of cases to the High Court and submitted that it was a
nullity because of the consequences of the wrong directions of this
Court. The enormity of the consequences warranted this Court's order
being treated as a nullity. The directions denied the appellant the
remedy by way of appeal as of right. Such erroneous or mistaken
directions should be corrected at the earliest opportunity, Shri Rao
submitted.
Shri Rao also submitted that the directions given by the Court
were without jurisdiction and as such void. There was no
jurisdiction, according to Shri Rao, or power to transfer a case from
the Court of 44 the Special Judge to any High Court. Section 406 Gf
the Code only permitted transfer of cases from one High Court to
another High Court or from a Criminal Court subordinate to one High
Court to a Criminal Court subordinate to another High Court. It is
apparent that the impugned directions could not have been given under
section 406 of the Code as the Court has no such power to order the
transfer from the Court of the Special Judge to the High Court of
Bombay.
Section 7(1) of the 1952 Act creates a condition which is sine qua
non for the trial of offences under section 6(1) of the said Act. The
condition is that notwithstanding anything contained in the Code of
Criminal Procedure or any other law, the said offences shall be
triable by Special Judges only. (Emphasis supplied). Indeed
conferment of the exclusive jurisdiction of the Special Judge is
recognised by the judgment delivered by this Court in A.R. Antulay v.
Ramdas Sriniwas Nayak and another, [1984] 2 S.C.R. 914 where this
Court had adverted to section 7(1) of the 1952 Act and at page 931
observed that section 7 of the 1952 Act conferred exclusive
jurisdiction on the Special Judge appointed under section 6 to try
cases set out in section 6(1)(a) and 6(1)(b) of the said Act. The
Court emphasised that the Special Judge had exclusive jurisdiction to
try offences enumerated in section 6(1)(a) and (b). In spite of this
while giving directions in the other matter, that is, R.S. Nayak v.
A.R. Antulay, [1984] 2 S.C.R. 495 at page 557, this Court directed
transfer to the High Court of Bombay the cases pending before the
Special Judge. It is true that section 7(1) and Section 6 of the 1952
Act were referred to while dealing with the other matters but while
dealing with the matter of directions and giving the impugned
directions, it does not appear that the Court kept in mind the
exclusiveness of the jurisdiction of the Special Court to try the
offences enumerated in section 6.
Shri Rao made a point that the directions of the Court were given
per incuriam, that is to say without awareness of or advertence to
the exclusive nature of the jurisdiction of the Special Court and
without reference to the possibility of the violation of the
fundamental rights in a case of this nature as observed by a seven
Judges Bench decision in The State of West Bengal v. AnwarAli Sarkar
[1952] S.C.R. 284.
Shri Ram Jethmalani on behalf of the respondents submitted that
the judgment of the Constitution Bench of this Court was delivered on
16th of February, 1984 and counsel for both sides were present and it
was neither objected to nor stated by the appellant that he wanted to
be heard in regard to the transfer of the trial forum. He 45
submitted that the order of discharge was not only challenged by a
special leave petition before this Court but also that a revision
application before the High Court being Criminal Revision Application
No. 354/83 was filed but the Criminal Revision Application by an
order of this Court was withdrawn and heard along with the special
leave petition.
That application contained a prayer to the effect that the order
of discharge be set aside and the case be transferred to the High
Court for trial. Therefore, it was submitted that the order of
transfer was manifestly just. There was no review against this order.
It was submitted that the order of transfer to a superior court
cannot in law or in fact ever cause any harm or prejudice to any
accused. It is an order made for the benefit of the accused and in
the interests of justice. Reliance was placed on Romesh Chandra Arora
v. The State, [1960] 1 S.C.R. 924 at 927 and 934. It was further
submitted by Shri Jethmalani that a decision which has become final
cannot be challenged. Therefore, the present proceedings are an abuse
of the process of the Court, according to him. It was further
submitted that all the attributes of a trial court were present in a
Court of Appeal, an appeal being a continuation of trial before
competent Court of Appeal and, therefore, all the qualifications of
the trial court were there. The High Court is authorised to hear an
appeal from the judgment of the Special Judge under the Act of 1952.
It was submitted that a Special Judge except in so far as a specific
provision to the contrary is made is governed by all the provisions
of the Code and he is a Court subordinate to the High Court.
See A.R. Antulay v. R.S. Nayak and another, [1984] 2 S.C.R.
914 at 943 and 944.
It was submitted that power under section 526 of the old Code
corresponding to section 407 of the new Code can be exercised qua a
Special Judge. This power, according to Shri Jethmalani, is
exerciseable by the High Court in respect of any case under Section
407(1)(iv) irrespective of the Court in which it is pending. This
part of the section is not repealed wholly or pro tanto, according to
the learned counsel, by anything in the 1952 Act. The Constitution
Bench, it was submitted, consciously exercised this power.
It decided that the High Court had the power to transfer a case to
itself even from a Special Judge. That decision is binding at least
in this case and cannot be reopened, it was urged. In this case what
was actually decided cannot be undone, we were told repeatedly. It
will produce an intolerable state of affairs. This Court sought to
recognise the distinction between finality of judicial orders qua the
parties and the reviewability for application to other cases. Between
the parties even a wrong decision can operate as res judicata. The
doctrine of res judicata is applicable even to criminal 46 trials, it
was urged. Reliance was placed on Bhagat Ram v.
State of Rajasthan, [1972] 2 S.C.C.466. A judgment of a High Court
is binding in all subsequent proceedings in the same case; more so, a
judgment which was unsuccessfully challenged before this Court.
It is obvious that if a case could be transferred under section
406 of the Code from a Special Judge it could only be transferred to
another Special Judge or a court of superior jurisdiction but
subordinate to the High Court. No such court exists. Therefore, under
this section the power of transfer can only be from one Special Judge
to another Special Judge. Under section 407 however, corresponding to
section 526 of the old Code, it was submitted the High Court has
power to transfer any case to itself for being tried by it, it was
submitted.
It appears to us that in Gurcharan Das Chadha v. State of
Rajasthan, [1966] 2 S.C.R. 678 an identical question arose. The
petitioner in that case was a member of an All India Service serving
in the State of Rajasthan. The State Government ordered his trial
before the Special Judge of Bharatpur for offences under section
120B/161 of the Indian Penal Code and under sections 5(1)(a) and (d)
and 5(2) of the Act. He moved this Court under section 527 of the old
Code praying for transfer of his case to another State on various
grounds. Section 7(1) of the Act required the offences involved in
that case to be tried by a Special Judge only, and section 7(2) of
the Act required the offences to be tried by a Special Judge for the
area within which these were committed which condition could never be
satisfied if there was a transfer. This Court held that the condition
in sub-section (1) of section 7 of the Act that the case must be
tried by a Special Judge, is a sine qua non for the trial of offences
under section 6. This condition can be satisfied by transferring the
case from one Special Judge to another Special Judge. Sub-section (2)
of section 7 merely distributes, it was noted, work between Special
Judges appointed in a State with reference to territory.
This provision is at par with the section of the Code which
confers territorial jurisdiction on Sessions Judges and magistrates.
An order of transfer by the very nature of things must sometimes
result in taking the case out of the territory. The third sub-section
of section 8 of the Act preserves the application of any provision of
the Code if it is not inconsistent with the Act save as provided by
the first two sub-sections of that Section. It was held by this Court
that section 527 of the old Code, hence, remains applicable if it is
not inconsistent with section 7(2) of the Act. It was held that there
was no inconsistency between section 527 of the Code and 47 section
7(2) of the Act as the territorial jurisdiction created by the latter
operates in a different sphere and under different circumstances.
Inconsistency can only be found if two provisions of law apply in
identical circumstances, and create contradictions. Such a situation
does not arise when either this Court or the High Court exercises the
power of transfer. Therefore, this Court in exercise of its
jurisdiction and power under section 521 of the Code can transfer a
case from a Special Judge subordinate to one High Court to another
Special Judge subordinate to another High Court. It has to be
emphasised that that decision was confined to the power under section
527 of the previous Code and to transfer from one Special to another
Special Judge though of another State. It was urged by Shri
Jethmalani that Chadha's case (supra) being one of transfer from one
Special Judge to another the judgment is not an authority for the
proposition that it cannot be transferred to a court other than that
of a Special Judge or to the High Court. But whatever be the
position, this is no longer open at this juncture.
The jurisdiction, it was submitted, created by section 7 of the
Act of 1952 is of exclusiveness qua the Courts subordinate to the
High Court. It is not exclusive qua a Court of superior jurisdiction
including a Court which can hear an appeal against its decision. The
non obstante clause does not prevail over other provisions of the
Code such as those which recognise the powers of the superior courts
to exercise jurisdiction on transfer. It was submitted that the power
of transfer vested in the High Court is exercisable qua Special
Judges and is recognised not merely by Chadha's case but in earlier
cases also, Shri Jethmalani submitted.
It was next submitted that apart from the power under sections 406
and 407 of the Code the power of transfer is also exercisable by the
High Court under Article 228 of the Constitution. There' is no doubt
that under this Article the case can be withdrawn from the Court of a
Special Judge. It is open to the High Court to finally dispose it of.
A chartered High Court can make orders of transfer under clause 29 of
the Letters Patent. Article 134(1)(b) of the Constitution expressly
recognises the existence of such power in every High Court.
It was further submitted that any case transferred for trial to
the High Court in which it exercises jurisdiction only by reason of
the order of transfer is a case tried not in ordinary original
criminal jurisdiction but in extraordinary original criminal
jurisdiction. Some High Courts had both ordinary criminal
jurisdiction as well as extraordinary 48 criminal original
jurisdiction. The former was possessed by the High Courts of Bombay,
Madras and Calcutta. The first two High Courts abolished it in the
40's and the Calcutta High Court continued it for quite some time and
after the 50's in a truncated form until it was finally done away
with by the Code. After the Code the only original criminal
jurisdiction possessed by all the High Courts is extraordinary. It
can arise by transfer under the Code or the Constitution or under
clause 29 of the Letters Patent.
It was submitted that it was not right that extraordinary original
criminal jurisdiction is contained only in clause 24 of the Letters
Patent of the Bombay High Court. This is contrary to section 374 of
the Code itself. That refers to all High Courts and not merely all or
any one of the three Chartered High Courts. In P.P. Front, New Delhi
v. KK. Birla and others, [1984] Criminal Law Journal 545, the Delhi
High Court recognised its extraordinary original criminal
jurisdiction as the only one that it possessed. The nature of this
jurisdiction is clearly explained in Madura, Tirupparankundram etc.
v. Alikhan Sahib and Ors, 35 Calcutta Weekly Notes, 1088 and Sunil
Chandra Roy and another v. The State, A.I.R. 1954 Calcutta 305,
paragraph 15. Reference may also be made to the Law Commissioner's
41st Report, paragraphs 3.1 to 3.6 at page 29 and paragraph 31. 10 at
page 259.
The 1952 Act was passed to provide for speedier trial but the
procedure evolved should not be so directed, it was submitted, that
it would violate Article 14 as was held in Anwar Ali Sarkar's case
(supra).
Section 7 of the 1952 Act provides that notwithstanding anything
contained in the Code of Criminal Procedure, or in any other law the
offences specified in sub-section (1) of section 6 shall be triable
by Special Judges only. So the law provides for a trial by Special
Judge only and this is notwithstanding anything contained in sections
406 and 407 of the Code of Criminal Procedure, 1973. Could it,
therefore, be accepted that this Court exercised a power not given to
it by Parliament or the Constitution and acted under a power not
exercisable by it? The question that has to be asked and answered is
if a case is tried by a Special Judge or a court subordinate to the
High Court against whose order an appeal or a revision would lie-to
the High Court, is transferred by this Court to the High Court and
such right of appeal or revision is taken away would not an accused
be in a worse position than others? This Court in R.S. Nayak v. A.R.
Antulay, [1984] 2 S.C.R. 495 did not refer either to section 406 or
section 407 of the Code. It is only made dear that if the application
had been made to the 49 High Court under section 407 of the Code, the
High Court might have transferred the case to itself The second
question that arises here is if such a wrong direction has been given
by this Court can such a direction inter-parties be challenged
subsequently. This is really a value perspective judgement.
In Kiran Singh and others v. Chaman Paswan and others, l 19551 1
S.C.R. 117 at 121 Venkatarama Ayyar, J. Observed that the fundamental
principle is well established that a decree passed by a Court without
jurisdiction is a nullity, and that its validity could be set up
whenever and wherever it is sought to be enforced or relied upon-even
at the stage of execution and even in collateral proceedings. A
defect of jurisdiction whether it is pecuniary or territorial, or
whether it is in respect of the subject-matter of the action, strikes
at the very authority of the Court to pass any decree, and such a
defect cannot be cured even by consent of parties.
This question has been well put, if we may say so, in the decision
of this Court in M.L. Sethi v. R.P. Kapur, [1973] 1 S.C.R. 697 where
Mathew, J. Observed that the jurisdiction was a verbal coat of many
colours and referred to the decision in Anisminic Ltd. v. Foreign
Compensation Commission, [1969] 2 A.C. 147 where the majority of the
House of Lords dealt with the assimilation of the concepts of 'lack'
and 'excess' of jurisdiction or, in other words, the extent to which
we have moved away from the traditional concept of jurisdiction. The
effect of the dicta was to reduce the difference between
jurisdictional error and error of law within jurisdiction almost to a
vanishing point. What is a wrong decision on a question of
limitation, he posed referring to an article of Professor H.W.R.
Wade, "Constitutional and Administrative Aspects of the
Anismanic case" and concluded; "it is a bit difficult to
understand how an erroneous decision on a question of limitation or
res judicata would oust the jurisdiction of the Court in the
primitive sense of the term and render the decision or decree
embodying the decision a nullity liable to collateral attack .. And
there is no yardstick to determine the magnitude of the error other
than the opinion of the Court." (Emphasis supplied) While
applying the ratio to the facts of the present controversy, it has to
be borne in mind that section 7(1) of the 1952 Act creates a
condition which is sine qua non for the trial of offenders under
section 6(1) of that Act. In this connection, the offences specified
under section 6(1) of the 1952 Act are those punishable under
sections 161, 162, 50 163, 164 and 165A of the Indian Penal Code and
section 5 of the 1947 Act. Therefore, the order of this Court
transferring the cases to the High Court on 16th February, 1984, was
not authorised by law. This Court, by its directions could not confer
jurisdiction on the High Court of Bombay to try any case which it did
not possess such jurisdiction under the scheme of the 1952 Act. It is
true that in the first judgment in A.R. Antulay v. Ramdas Sriniwas
Nayak and another, [1984] 2 S.C.R. 914 when this Court was analysing
the scheme of the 1952 Act, it referred to sections 6 and 7 at page
931 of the Reports. The arguments, however, were not advanced and it
does not appear that this aspect with its remifications was present
in the mind of the Court while giving the impugned directions.
Shri Jethmalani sought to urge before us that the order made by
the Court was not without jurisdiction or irregular.
We are unable to agree. It appears to us that the order was quite
clearly per incuriam. This Court was not called upon and did not
decide the express limitation on the power conferred by section 407
of the Code which includes offences by public servants mentioned in
the 1952 Act to be overridden in the manner sought to be followed as
the consequential direction of this Court. This Court, to be plain,
did not have jurisdiction to transfer the case to itself. That will
be evident from an analysis of the different provisions of the Code
as well as the 1952 Act.
The power to create or enlarge jurisdiction is legislative in
character, so also the power to confer a right of appeal or to take
away a right of appeal. Parliament alone can do it by law and no
Court. whether superior or inferior or both combined can enlarge the
jurisdiction of a Court or divest a person of his rights of revision
and appeal. See in this connection the observations in M.L. Sethi v.
R.P. Kapur (supra) in which Justice Mathew considered Anisminic,
[1969] 2 AC 147 and also see Halsbury's Laws of England, 4th Edn.
Vol. 10 page 327 at para 720 onwards and also Amnon Rubinstein
'Jurisdiction and Illegality' (1965 Edn. pages 16-50). Reference may
also be made to Raja Soap Factory v.
S. P. Shantaraj, [1965] 2 SCR 800.
The question of validity, however, is important in that the want
of jurisdiction can be established solely by a superior Court and
that, in practice, no decision can be impeached collaterally by any
inferior Court. But the superior Court can always correct its own
error brought to its notice either by way of petition or ex debito
justitiae.
See Rubinstein's Jurisdiction and Illegality' (supra).
In the aforesaid view of the matter and the principle reiterated,
it 51 is manifest that the appellant has not been ordered to be tried
by a procedure mandated by law, but by a procedure which was
violative of Article 21 of the Constitution. That is violative of
Articles 14 and 19 of the Constitution also, as is evident from the
observations of the 7 Judges Bench judgment in Anwar Ali Sarkar's
case (supra) where this Court found that even for a criminal who was
alleged to have committed an offence, a special trial would be per se
illegal because it will deprive the accused of his substantial and
valuable privileges of defences which, others similarly charged, were
able to claim. As Justice Vivian Bose observed in the said decision
at page 366 of the report, it matters not whether it was done in good
faith, whether it was done for the convenience of Government, whether
the process could be scientifically classified and labelled, or
whether it was an experiment for speedier trial made for the good of
society at large. Justice Bose emphasised that it matters not how
lofty and laudable the motives were. The question which must be
examined is, can fair minded, reasonable, unbiased and resolute men
regard that with equanimity and call it reasonable, just and fair,
regard it as equal treatment and protection in the defence of
liberties which is expected of a sovereign democratic republic in the
conditions which are obtained in India today. Judged by that view the
singling out of the appellant in this case for a speedier trial by
the High Court for an offence of which the High Court had no
jurisdiction to try under the Act of 1952 was, in our opinion,
unwarranted, unprecedented and the directions given by this Court for
the said purpose, were not warranted. If that is the position, when
that fact is brought to our notice we must remedy the situation. In
rectifying the error, no procedural inhibitions should debar this
Court because no person should suffer by reason of any mistake of the
Court. The Court, as is manifest, gave its directions on 16th
February, 1984.
Here no rule of res judicata would apply to prevent this Court
from entertaining the grievance and giving appropriate directions. In
this connection, reference may be made to the decision of the Gujarat
High Court in Soni Vrajlal Jethalal v. Soni Jadavji Govindji and
others, A.I.R. 1972 Guj. 148.
Where D.A. Desai, J. speaking for the Gujarat High Court observed
that no act of the court or irregularity can come in the way of
justice being done and one of the highest and the first duty of all
Courts is to take care that the act of the Court does no in jury to
the suitors.
It appears that when this Court gave the aforesaid directions on
16th February, 1984, for the disposal of the case against the
appellant by the High Court, the directions were given oblivious of
the relevant provisions of law and the decision in Anwar Ali Sarkar's
case (supra).
52 See Halsbury's Laws of England, 4th End, Vol. 26, page 297,
para 578 and page 300, the relevant notes 8, 11 and 15;
Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v.
Bristol Aeroplane Co. Ltd., [1944] 2 AER 293 at 300. Also see the
observations of Lord Goddard in Moore v. Hewitt, [1947] 2 A.E.R. 270
at 272-A and Penny v. Nicholas, [1950] 2 A.E.R. 89, 92A. "per
incuriam" are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of some
authority binding on the Court concerned, so that in such cases some
part of the decision or some step in the reasoning on which it is
based, is found, on that account to be demonstrably wrong. See
Morelle v. Wakeling, [1955] 1 All E.R. 708, 718F. Also see State of
Orissa v. The Titaghur Paper Mills Co. Ltd., [19851 3 SCR
26. We are of the opinion that in view of the clear provisions of
section 7(2) of the Criminal Law Arnendment Act, 1952 and Articles 14
and 21 of the Constitution, these directions were legally wrong.
The principle that the size of the Bench-whether it is comprised
of two or three or more Judges-does not matter, was enunciated in
Young v. Bristol Aeroplane Co. Ltd.
(supra) and followed by Justice Chinnappa Reddy in Javed Ahmed
Abdul Hamid Pawala v. State of Maharashtra, [1985] 2 SCR 8 where it
has been held that a Division Bench of three Judges should not
overrule a Division Bench of two Judges, has not been followed by our
Courts. According to wellsettled law and various decisions of this
Court, it is also well-settled that a Full Bench or a Constitution
Bench decision as in Anwar Ali Sarkar's case (supra) was binding on
the Constitution Bench because it was a Bench of 7 Judjes.
The principle in England that the size of the Bench does not
matter, is clearly brought out in the decision of Evershed M.R. in
the case of Morelle v. Wakeling (supra).
The law laid down by this Court is somewhat different. There is a
hierarchy within the Court itself here, where larger Benches overrule
smaller Benches. See the observations of this Court in Mattulal v.
Radhe Lal, [1975] 1 SCR 127, Union of India & Anr. v. K.S.
Subramanian, [1977] 1 SCR 87 at page 92 and State of U.P. v. Ram
Chandra Trivedi, [1977] 1 SCR 462 at 473. This is the practice
followed by this Court and now it is a crystallised rule of law. See
in this connection, as mentioned hereinbefore, the observations of
the State of Orissa v. Titagarh Paper Mills (supra) and also Union of
India and others v. Godfrey Philips India Ltd., [1985] Suppl 3 SCR
123 at 145.
In support of the contention that a direction to delete wholly the
53 impugned direction of this Court be given, reliance was placed on
Satyadhvan Ghoshal v. Deorajini Devi, [1960] 3 SCR 590. The ratio of
the decision as it appears from pages 601 to 603 is that the judgment
which does not terminate the proceedings, can be challenged in an
appeal from final proceedings. It may be otherwise if subsequent
proceedings were independent ones.
The appellant should not suffer on account of the direction of
this Court based upon an error leading to conferment of jurisdiction.
In our opinion, we are not debarred from re-opening this question
and giving proper directions and correcting the error in the present
appeal, when the said directions on 16th February, 1984, were
violative of the limits of jurisdiction and the directions have
resulted in deprivation of the fundamental rights of the appellant,
guaranteed by Articles 14 and 21 of the Constitution. The appellant
has been treated differently from other offenders, accused of a
similar offence in view of the provisions of the Act of 1952 and the
High Court was not a Court competent to try the offence. It was
directed to try the appellant under the directions of this Court,
which was in derogation of Article 21 of the Constitution. The
directions have been issued without observing the principle of audi
alteram partem. It is true that Shri Jethmalani has shown us the
prayers made before the High Court which are at page 121 of the
paper- book. He argued that since the transfers have been made under
section 407, the procedure would be that given in section 407(8) of
the Code. These directions, Shri Jethmalani sought to urge before us,
have been given in the presence of the parties and the clarificatory
order of April 5, 1985 which was made in the presence of the
appellant and his Counsel as well as the Counsel of the State
Government of Maharashtra, expressly recorded that no such submission
was made in connection with the prayer for grant of clarification. We
are of the opinion that Shri Jethmalani is not right when he said
that the decision was not made per incuriam as submitted by the
appellant. It is a settled rule that if a decision has been given per
incuriam the Court can ignore it. It is also true that the decision
of this Court in the case of The Bengal Immunity Co. Ltd. v. The
State of Bihar & Ors. [1955] 2 SCR 603 at 623 was not regarding
an order which had become conclusive inter-parties. The Court was
examining in that case only the doctrine of precedents and
determining the extent to which it could take a different view from
one previously taken in a different case between different parties.
According to Shri Jethmalani, the doctrine of per incuriam has 54
no application in the same proceedings. We are unable to accept this
A contention. We are of the opinion that this Court is not powerless
to correct its error which has the effect of depriving a citizen of
his fundamental rights and more so, the right to life and liberty. It
can do so in exercise of its inherent jurisdiction in any proceeding
pending before it without insisting on the formalities of a review
application. Powers of review can be exercised in a petition filed
under Article 136 or Article 32 or under any other provision of the
Constitution if the Court is satisfied that its directions have
resulted in the deprivation of the fundamental rights of a citizen or
any legal right of the petitioner. See the observations in Prem Chand
Garg v. Excise Commissioner, U.P. Allahabad, [1963] Supp. 1 S.C.R.
885.
In support of the contention that an order of this Court be it
administrative or judicial which is violative of fundamental right
can always be corrected by this Court when attention of the Court is
drawn to this infirmity, it is instructive to refer to the decision
of this Court in Prem Chand Garg v. Excise Commissioner, U.P.,
Allahabad (supra).
This is a decision by a Bench of five learned Judges.
Gajendragadkar, J. spoke for four learned Judges including himself
and Shah, J. expressed a dissenting opinion. The question was whether
Rule 12 of order XXXV of the Supreme Court Rules empowered the
Supreme Court in writ petitions under Article 32 to require the
petitioner to furnish security for the costs of the respondent.
Article 145 of the Constitution provides for the rules to be made
subject to any law made by Parliament and Rule 12 was framed
thereunder. The petitioner contended that the rule was invalid as it
placed obstructions on the fundamental right guaranteed under Article
32 to move the Supreme Court for the enforcement of fundamental
rights. This rule as well as the judicial order dismissing the
petition under Article 32 of the Constitution for non-compliance with
Rule 12 of order XXXV of the Supreme Court Rules were held invalid.
In order to appreciate the significance of this point and the actual
ratio of that decision so far as it is relevant for our present
purpose it is necessary to refer to a few facts of that decision. The
petitioner and 8 others who were partners of M/s. Industrial Chemical
Corporation, Ghaziabad, had filed under Article 32 of the
Constitution a petition impeaching the validity of the order passed
by the Excise Commissioner refusing permission to the Distillery to
supply power alcohol to the said petitioners. The petition was
admitted on 12th December, 1961 and a rule was ordered to be issued
to the respondents, the Excise Commissioner of U.P., Allahabad, and
the State of U.P. At the time when the rule was issued, this Court
directed under the impugned rule that the petitioners should deposit
a security 55 Of Rs.2,500 in cash within six weeks. According to the
practice of this A Court prevailing since 1959, this order was
treated as a condition precedent for issuing rule nisi to the
impleaded respondents. The petitioners found it difficult to raise
the amount and so on January 24, 1962, they moved this Court for
modification of the said order as to security. This application was
dismissed, but the petitioners were given further time to deposit the
said amount by March 26, 1962. This order was passed on March 15,
1962. The petioners then tried to collect the requisite fund, but
failed in their efforts and that led to the said petition filed on
March 24, 1962 by the said petitioners.
The petitioners contended that the impugned rule, in so far as it
related to the giving of security, was ultra vires, because it
contravened the fundamental right guaranteed to the petitioners under
Article 32 of the Constitution. There were two orders, namely, one
for security of costs and another for the dismissal of the previous
application under Article 32 of the Constitution.
This Court by majority held that Rule 12 of order XXXV of the
Supreme Court Rules was invalid in so far as it related to the
furnishing of security. The right to move the Supreme Court, it was
emphasised, under Article 32 was an absolute right and the content of
this right could not be circumscribed or impaired on any ground and
an order for furnishing security for the respondent's costs retarded
the assertion or vindication of the fundamental right under Article
32 and contravened the said right. The fact that the rule was
discretionary did not alter the position. Though Article 142(1)
empowers the Supreme Court to pass any order to do complete justice
between the parties, the Court cannot make an order inconsistent with
the fundamental rights guaranteed by Part III of the Constitution. No
question of inconsistency between Article 142(1) and Article 32
arose.
Gajendragadkar, J. speaking for the majority of the Judges of this
Court said that Article F 142(1) did not confer any power on this
Court to contravene The provisions of Article 32 of the Constitution.
Nor did Article 145 confer power upon this Court to make rules,
empowering it to contravene the provisions of the fundamental right.
At page 899 of the Reports, Gajendragadkar, J. reiterated that the
powers of this Court are no doubt very wide and they are intended and
"will always be exercised in the interests of justice." But
that is not to say that an order can be made by this Court which is
inconsistent with the fundamental rights guaranteed by Part III of
the Constitution. It was emphasised that an order which this Court
could make in order to do complete justice between the parties, must
not only be consistent with the fundamental rights guaranteed by the
Constitution, but it cannot even be inconsistent 56 with the
substantive provisions of the relevant statutory laws (Emphasis A
supplied). The Court therefore, held that it was not possible to hold
that Article 142(1) conferred upon this Court powers which could
contravene the provisions of Article 32. It follows, therefore, that
the directions given by this Court on 16th February, 1984, on the
ground of expeditious trial by transferring Special Case No. 24 of
1982 and Special Case No. 3 of 1983 pending in the Court of Special
Judge, Greater Bombay, Shri S.B. Sule, to the High Court of Bombay
with a request to the learned Chief Justice to assign these two cases
to a sitting Judge of the High Court was contrary to the relevant
statutory provision, namely, section 7(2) of the Criminal law
Amendment Act, 1952 and as such violative of Article 21 of the
Constitution.
Furthermore, it violates Article 14 of the Constitution as being
made applicable to a very special case among The special cases,
without any guideline as to which cases required speedier justice. If
that was so as in Prem Chand Garg's case, that was a mistake of so
great a magnitude that it deprives a man by being treated differently
of his fundamental right for defending himself in a criminal trial in
accordance with law. If that was so then when the attention of the
Court is drawn the Court has always the power and the obligation to
correct it ex debito justitiae and treat the second application by
its inherent power as a power of review to correct the original
mistake. No suitor should suffer for the wrong of the Court. This
Court in Prem Chand Garg's case struck down not only the
administrative order enjoined by Rule 12 for deposit of security in a
petition under Article 32 of the Constitution but also struck down
the judicial order passed by the Court for non- deposit of such
security in the subsequent stage of the same proceeding when
attention of the Court to the infirmity of the rule was drawn. It may
be mentioned that Shah, J. was of the opinion that rule 12 was not
violative. For the present controversy it is not necessary to deal
with this aspect of the matter.
The power of the Court to correct an error subsequently has been
reiterated by a decision of a bench of nine Judges of this Court in
Naresh Shridhar Mirajkar and others v.
State of Maharashtra and another, [1966] 3 S.C.R. 744. The facts
were different and not quite relevant for our present purposes but in
order to appreciate the contentions urged, it will be appropriate to
refer to certain portions of the same. There was a suit for
defamation against the editor of a weekly newspaper, which was filed
in the original side of the High Court. One of the witnesses prayed
that the Court may order that publicity should not be given to his
evidence m the press as his business would be affected. After hearing
arguments, the trial Judge passed an oral order 57 prohibiting the
publication of the evidence of the witness.
A reporter of the weekly along with other journalists moved this
Court under Article 32 of the Constitution challenging the validity
of the order. It was contended that: (1) the High Court did not have
inherent power to pass the order;
(2) the impugned order violated the fundamental rights of the
petitioners under Article 19(1)(a); and (3) the order was amenable to
the writ jurisdiction of this Court under Article 32 of the
constitution It was held by Gajendragadkar, C.J. for himself and five
other learned Judges that the order was within the inherent power of
the High Court. Sarkar, J. was of the view that the High Court had
power to prevent publication of proceedings and it was a facet of the
power to hold a trial in camera and stems from it. Shah, J. was,
however, of the view that the Code of Civil Procedure contained no
express provision authorising the Court to hold its proceedings in
camera, but if excessive publicity itself operates as an instrument
of injustice, the Court has inherent jurisdiction to pass an order
excluding the public when the nature of the case necessitates such a
course to be adopted. Hidayatullah, J. was, however, of the view that
a Court which was holding a public trial from which the public was
not excluded, could not suppress the publication of the deposition of
a witness, heard not in camera but in open Court, on the request of
the witness that his business would suffer. Sarker, J. further
reiterated that if a judicial tribunal makes an order which it has
jurisdiction to make by applying a law which is valid in all
respects, that order cannot offend a fundamental right. An order
which is within the jurisdiction of the tribunal which made it, if
the tribunal had jurisdiction to decide the matters that were
litigated before it and if the law which it applied in making the
order was a valid law, could not be interfered with. It was
reiterated that the tribunal having this jurisdiction does not act
without jurisdiction if it makes an error in the application of the
law.
Hidayatullah, J. Observed at page 790 of the report that in Prem
Chand Garg's case the rule required the furnishing of security in
petition under Article 32 and it was held to abridge the fundamental
rights. But it was said that the rule was struck down and not the
judicial decision which was only revised. That may be so. But a
judicial decision based on such a rule is not any better and offends
the fundamental rights just the same and not less so because it
happens to be a judicial order. If there be no appropriate remedy to
get such an order removed because the Court has no superior, it does
not mean that the order is made good. When judged under the
Constitution it is still a 58 void order although it may bind parties
unless set aside.
Hidayatullah, J. reiterated that procedural safeguards are as
important as other safeguards. Hidayatullah, J.
reiterated that the order committed a breach of the fundamental
right of freedom of speech and expression. We are, therefore, of the
opinion that the appropriate order would be to recall the directions
contained in the order dated 16th February, 1984.
In considering the question whether in a subsequent proceeding we
can go to the validity or otherwise of a previous decision on a
question of law inter-parties, it may be instructive to refer to the
decision of this Court in Smt. Ujjam Bai v. State of Uttar Pradesh,
[1963] 1 S.C.R.
778. There, the petitioner was a partner in a firm which carried
on the business of manufacture and sale of hand-made bidis. On
December 14, 1957, the State Government issued a notification under
section 4(1)(b) of the U.P. Sales Tax Act, 1948. By a subsequent
notification dated 25th November, 1958, hand-made and machine-made
bidis were unconditionally exempted from payment of sales tax. The
Sales Tax officer had sent a notice to the firm for the assessment of
tax on sale of bidis during the assessment period 1st of April, 1958
to June 30, 1958. The firm claimed that the notification dated 14th
December, 1957 had exempted bidis from payment of sales tax and that,
therefore, it was not liable to pay sales tax on the sale of bidis.
This position was not accepted by the Sales Tax officer who passed
certain orders. The firm appealed under section 9 of the Act to the
Judge (Appeals) Sales Tax, but that was dismissed. The firm moved the
High Court under Article 226 of the Constitution.
The High Court took the view that the firm had another remedy
under the Act and the Sales Tax officer had not committed any
apparent error in interpreting the notification of December 14, 1957.
The appeal against the order of the High Court on a certificate under
Article 133(1)(a) of the Constitution was dismissed by this Court for
non-prosecution and the firm filed an application for a restoration
of the appeal and condonation of delay. During the pendency of that
appeal another petition was filed under Article 32 of the
Constitution for the enforcement of the fundamental right under
Articles 19(1)(g) and 31 of the Constitution. Before the Constitution
Bench which heard the matter a preliminary objection was raised
against the maintainability of the petition and the correctness of
the decision of this Court in Kailash Nath v. State of U.P., A.I.R.
1957 S.C. 790 relied upon by the petitioner was challenged. The
learned Judges referred the case to a larger Bench. It was held by
this Court by a majority of five learned Judges that the answer to
the questions must be in the negative. The case of Kailash Nath was
not correctly decided and the decision was not sustainable on 59 the
authorities on which it was based. Das, J. speaking for himself
observed that the right to move this Court by appropriate proceedings
for the enforcement of fundamental rights conferred by Part III of
the Constitution was itself a guaranteed fundamental right and this
Court was not trammelled by procedural technicalities in making an
order or issuing a writ for the enforcement of such rights. The
question, however, was whether, a quasi-judicial authority which made
an order in the undoubted exercise of its jurisdiction in pursuance
of a provision of law which was intra vires, an error of law or fact
committed by that authority could not be impeached otherwise than on
appeal, unless the erroneous determination related to a matter on
which the jurisdiction of that body depended. It was held that a
tribunal might lack jurisdiction if it was improperly constituted. In
such a case, the characteristic attribute of a judicial act or
decision was that it binds, whether right or wrong, and no question
of the enforcement of a fundamental right could arise on an
application under Article 32. Subba Rao, J. was, however, unable to
agree.
Shri Jethmalani urged that the directions given on 16th February,
1984, were not per incuriam. We are unable to accept this submission.
It was manifest to the Bench that exclusive jurisdiction created
under section 7(1) of the 1952 Act read with section 6 of the said
Act, when brought to the notice of this Court, precluded the exercise
of the power under section 407 of the Code. There was no argument, no
submission and no decision on this aspect at all. There was no prayer
in the appeal which was pending before this Court for such
directions. Furthermore, in giving such directions, this Court did
not advert to or consider the effect of Anwar Ali Sarkar's case
(supra) which was a binding precedent. A mistake on the part of the
Court shall not cause prejudice to any one. He further added that the
primary duty of every Court is to adjudicate the cases arising
between the parties. According to him, it is certainly open to a
larger Bench to take a view different from that taken by the earlier
Bench, if it was manifestly erroneous and he urged that the trial of
a corrupt Chief Minister before a High Court, instead of a Judge
designated by the State Government was not so injurious to public
interest that it should be overruled or set aside. He invited us to
consider two questions: (1) does the impugned order promote justice?
and (2) is it technically valid? After considering these two
questions, we are clearly of the opinion that the answer to both
these questions is in the negative. No prejudice need be proved for
enforcing the fundamental rights. Violation of a fundamental right
itself renders the impugned action void. So also the violation of the
principles of natural justice renders 60 the act a nullity. Four
valuable rights, it appears to us, of the appellant have been taken
away by the impugned directions;
(i) The right to be tried by a Special Judge in accordance with
the procedure established by law and enacted by Parliament.
(ii) The right of revision to the High Court under section 9 of
the Criminal Law Amendment Act.
(iii)The right of first appeal to the High Court under the same
section.
(iv) The. right to move the Supreme Court under Article 136
thereafter by way of a second appeal, if necessary.
In this connection Shri Rao rightly submitted that it is no
necessary to consider whether section 374 of the Criminal Procedure
Code confers the right of appeal to this Court from the judgment of a
learned Judge of the High Court to whom the case had been assigned
inasmuch as the transfer itself was illegal. One has to consider that
section 407 of the Criminal Procedure Code was subject to the
overriding mandate of section 7(1) of the 1952 Act, and hence, it
does not permit the High Court to withdraw a case for trial to itself
from the Court of Special Judge. It was submitted by Shri Rao that
even in cases where a case is withdrawn by the High Court to itself
from a criminal court other than the Court of Special Judge, the High
Court exercised transferred jurisdiction which is different from
original jurisdiction arising out of initiation of the proceedings in
the High Court. In any event section 374 of Criminal Procedure Code
limits the right to appeals arising out of clause 24 of the Letters
Patent.
In aid of the submission that procedure for trial evolved in
derogation of the right guaranteed under Article 21 of the
Constitution would be bad, reliance was placed on Attorney General of
India v. Lachma Devi and others, [1985] 2 Scale 144. In aid of the
submission on the question of validity our attention was drawn to
'Jurisdiction and Illegality' by Amnon Rubinstein (1965 Edn.). The
Parliament did not grant to the Court the jurisdiction to transfer a
case to the High Court of Bombay. However, as the superior Court is
deemed to have a general jurisdiction, the law presumes that the
Court acted within jurisdiction. In the instant case that presumption
cannot be taken, firstly because the question of jurisdiction was not
agitated before the 61 Court, secondly these directions were given
per incuriem as mentioned hereinbefore and thirdly the superior Court
alone can set aside an error in its directions when attention is
drawn to that error. This view is warranted only because of peculiar
facts and circumstances of the present case. Here the trial of a
citizen in a Special Court under special jurisdiction is involved,
hence, the liberty of the subject is involved. In this connection, it
is instructive to refer to page 126 of Rubinstein's aforesaid book.
It has to be borne in mind that as in Kuchenmeister v. Home office,
[1958] 1 Q.B. 496 here form becomes substance. No doubt, that being
so it must be by decisions and authorities, it appears to us patently
clear that the directions given by this Court on 16th February, 1984
were clearly unwarranted by constitutional provisions and in
derogation of the law enacted by the Parliament. See the observations
of Attorney General v. Herman James Sillem, [1864] 10 H.L.C. 703,
where it was reiterated that the creation of a right to an appeal is
an act which requires legislative authority, neither an inferior
Court nor the superior Court or both combined can create such a
right, it being one of limitation and extension of jurisdiction. See
also the observations of Isaacs v. Roberston, [1984] 3 A.E.R. 140
where it was reiterated by Privy Council that if an order is regular
it can be set aside by an appellate Court; if the order is irregular
it can be set aside by the Court that made it on the application
being made to that Court either under the rules of that Court dealing
expressly with setting aside orders for irregularity or ex debito
justitiae if the circumstances warranted, namely, violation of the
rules of natural justice or fundamental rights. In Ledgard v. Bull,
13 I.A. 134, it was held that under the old Civil Procedure Code
under section 25 the superior Court could not make an order of
transfer of a case unless the Court from which the transfer was souht
to be made, had jurisdiction to try. In the facts of the instant
case, the criminal revision application which was pending before the
High Court even if it was deemed to be transferred to this Court
under Article 139A of the Constitution it would not have vested this
Court with power larger than what is contained in section 407 of
Criminal Procedure Code. Under section 407 of the Criminal Procedure
Code read with the Criminal law Amendment Act, the High Court could
not transfer to itself proceedings under sections 6 and 7 of the said
Act. This Court by transferring the proceedings to itself, could not
have acquired larger jurisdiction. The fact that the objection was
not raised before this Court giving directions on 16th February, 1984
cannot amount to any waiver. In Meenakshi Naidoo v.
Subramaniya Sastri, 14 I.A. 160 it was held that if there was
inherent incompetence in a High Court to deal with all questions
before it then consent could not confer on the High Court any
jurisdiction which it never possessed.
62 We are clearly of the opinion that the right of the appellant
under Article 14 regarding equality before the law and equal
protection of law in this case has been violated.
The appellant has also a right not to be singled out for special
treatment by a Special Court created for him alone.
This right is implicit in the right to equality. See Anwar Ali
Sarkar's case (supra).
Here the appellant has a further right under Article 21 of the
Constitution-a right to trial by a Special Judge under section 7(1)
of the 1952 Act which is the procedure established by law made by the
Parliament, and a further right to move the High Court by way of,
revision or first appeal under section 9 of the said Act. He has also
a right not to suffer any order passed behind his back by a Court in
violation of the basic principles of natural justice.
Directions having been given in this case as we have seen without
hearing the appellant though it appears from the circumstances that
the order was passed in the presence of the counsel for the
appellant, these were bad.
In Nawabkhan Abbaskhan v. The State of Gujarat, [1974]3 S.C.R.
427, it was held that an order passed without hearing a party which
affects his fundamental rights, is void and as soon as the order is
declared void by a Court, the decision operates from its nativity. It
is proper for this Court to act ex debito justitiae, to act in favour
of the fundamental rights of the appellant.
In so far as Mirajkar's case (supra) which is a decision of a
Bench of 9 Judges and to the extent it affirms Prem Chand Garg's case
(supra), the Court has power to review either under section 137 or
suo motu the directions given by this Court. See in this connection
P.S.R.
Sadhananatham v. Arunachalam, [1980] 2 SCR 873 and Suk Das v.
Union of Territory of Arunachal Pradesh, [1986] 2 S.C.C.
401. See also the observations in Asrumati Debi v. Kumar Rupendra
Deb Raikot and others, [1953] S.C.R. 1159, Satyadhyan Ghosal and
others v. Smt. Deorajin Debi and another, [1960] 3 S.C.R. 590,
Sukhrani (dead) by L.Ls. and others v. Hari Shanker and others,
[1979] 3 S.C.R. 671 and Bejoy Gopal Mukherji v. Pratul Chandra Ghose,
[1953] S.C.R.
930.
We are further of the view that in the earlier judgment the points
for setting aside the decision, did not include the question of
withdrawal of the case from the Court of Special Judge to Supreme
Court and transfer it to the High Court. Unless a plea in question is
taken it cannot operate as res judicata. See Shivshankar Prasad Shah
and others v.
Baikunth Nath Singh and others, [1969] 1 S.C.C. 718, Bikan 63
Mahuri and others v. Mst. Bibi Walian and others, A.I.R.
1939 Patna 633. See also S. L. kapoor v. Jagmohan and others,
[1981] 1 S.C.R. 746 on the question of violation of the principles of
natural justice. Also see Maneka Gandhi v.
Union of India, [1978] 2 S.C.R. 621 at pages 674-68 1.
Though what is mentioned hereinbefore in the Bengal Immunity Co.
Ltd. v. The State of Bihar and others (supra), the Court was not
concerned with the earlier decision between the same parties. At page
623 it was reiterated that the Court was not bound to follow a
decision of its own if it was satisfied that the decision was given
per incuriam or the attention of the Court was not drawn. It is also
well settled that an elementary rule of justice is that no party
should suffer by mistake of the Court. See Sastri Yagnapurushadji and
others v. Muldas Bhudardas Vaishya and another, [1966] 3 S.C.R. 242,
Jang Singh v. Brijlal, l 1964] 2 S.C.R. 145, Bhajahari Mondal v. The
State of West Bengal, [1959] S.C.R. 1276 at 1284-1286 and Asgarali N.
Singaporawalla v. The State of Bombay, [1957] S.C.R. 678 at 692.
Shri Rao further submitted that we should not only ignore the
directions or set aside the directions contained in the order dated
16th February, 1984, but also direct that the appellant should not
suffer any further trial. It was urged that the appellant has been
deprived of his fundamental right guaranteed under Articles 14 and 21
as a result of the directions given by this Court. Our attention was
drawn to the observations of this Court in Suk Das's case (supra) for
this purpose. He further addressed us to the fact that six and half
years have elapsed since the first complaint was lodged against the
appellant and during this long period the appellant has suffered a
great deal. We are further invited to go into the allegations and to
held that there was nothing which could induce us to prolong the
agony of the appellant. We are, however, not inclined to go into this
question.
The right of appeal under section 374 is limited to Clause 24 of
Letters Patent. It was further submitted that the expression
'Extraordinary original criminal jurisdiction' under section 374 has
to be understood having regard to the language used in the Code and
other relevant statutory provisions and not with reference to
decisions wherein Courts described jurisdiction acquired by transfer
as extraordinary original jurisdiction. In that view the decisions
referred to by Shri Jethmalani being Kavasji Pestonji Dalal v.
Rustomji Sorabji jamadar & Anr., AIR 1949 Bom. 42, Sunil Chandra
Roy & Anr. v. The State, AIR 1954 Cal. 305, Sasadhar Acharjya &
Anr. v. Sir Charles Tegart & Ors., [1935] Cal. Weekly Notes 1088,
Peoples' Insurance Co.
Ltd. v. Sardul Singh Caveeshgar & Ors., AIR 1961 Punj. 87 and
P.P. Front, New 64 Delhi v. K. K. Birla, [1984] Cr. L.J. 545 are not
relevant.
It appears to us that there is good deal of force in the argument
that-section 411A of the old Code which corresponds to section 374 of
the new Code contained the expression 'original jurisdiction'. The
new Code abolished the original jurisdiction of High Courts but
retained the extraordinary original criminal jurisdiction conferred
by clause 24 of the Letters Patent which some of the High Courts had.
The right of appeal is, therefore, confined only to cases decided
by the High Court in its Letter Patent jurisdiction which in terms is
`extraordinary original criminal jurisdiction'.
By the time the new Code of Criminal Procedure 1973 was framed,
Article 21 had not been interpreted so as to include one right of
appeal both on facts and law.
Shri Ram Jethmalani made elaborate submissions before us regarding
the purpose of the Criminal Law Amendment Act and the constitution of
the Special Court. In our opinion, these submissions have no
relevance and do not authorise this Court to confer a special
jurisdiction on a High Court not warranted by the statute. The
observations of this Court in Re The Special Courts Bill, 1978,
[1979] 2 SCR 476 are not relevant for this purpose. Similarly, the
observations on right of appeal in V. C. Shukla v. Delhi
Administration, [1980] 3 SCR 500, Shri Jethmalani brought to our
notice certain facts to say that the powers given in the Criminal Law
Amendment Act were sought to be misused by the State Government under
the influence of the appellant. In our opinion, these submissions are
not relevant for the present purpose. Mr. Jethmalani submitted that
the argument that in so far as section 407 purports to authorise such
a transfer it stands repealed by section 7(1) of the Criminal Law
Amendment Act is wrong. He said it can be done in its extraordinary
criminal jurisdiction. We are unable to accept this submission. We
are also unable to accept the submission that the order of transfer
was made with full knowledge of section 7(1) of the Criminal Law
Amendment Act and the so- called exclusive jurisdiction was taken
away from Special Judges and the directions were not given per
incuriam. That is not right. He drew our attention to the principles
of interpretation of statutes and drew our attention to the purpose
of section 7(1) of the Act. He submitted that when the Amending Act
changes the law, the change must be confined to the mischief present
and intended to be dealt with. He drew us to the Tek Chand Committee
Report and submitted that he did not wish that an 65 occasional case
withdrawn and tried in a High Court was because of delay in disposal
of corruption cases. He further submitted that interference with
existing jurisdiction and powers of superior Courts can only be by
express and clear language. It cannot be brought about by a side
wind.
Thirdly, the Act of 1952 and the Code have to be read and
construed together, he urged. The Court is never anxious to discover
a repugnancy and infer apro tanto repeal. Resort to the non obstante
clause is permissible only when it is impossible to harmonise the two
provisions.
Shri Jethmalani highlighted before us that it was for the first
time a Chief Minister had been found guilty of receiving quid pro quo
for orders of allotment of cement to various builders by a Single
Judge of the High Court confirmed by a Division Bench of the High
Court. He also urged before us that it was for the first time such a
Chief Minister did not have the courage to prosecute his special
leave petition before this Court against the findings of three Judges
of the High Court. Shri Jethmalani also urged that it was for the
first time this Court found that a case instituted in 1982 made no
progress till 1984. Shri Jethmalani also sought to contend that
section 7(1) of the 1952 Act states "shall be triable by Special
Judges only", but does not say that under no circumstances the
case will be transferred to be tried by the High Court even in its
Extraordinary original Criminal Jurisdiction. He submitted that
section 407(1)(iv) is very much in the statute and and it is not
repealed in respect of the cases pending before the Special Judge.
There is no question of repealing section 407(1)(iv). Section 407
deals with the power of the High Court to transfer cases and appeals.
Section 7 is entirely different and one has to understand the scheme
of the Act of 1952, he urged. It was an Act which provided for a more
speedy trial of certain offences. For this it gave power to appoint
Special Judges and stipulated for appointment of Special Judges under
the Act. Section 7 states that notwithstanding anything contained in
the Code, the offences mentioned in sub-section (1) of section 6
shall be triable by Special Judges only. By express terms therefore,
it takes away the right to transfer cases contained in the Code to
any other Court which is not a Special Court. Shri Jethmalani sought
to urge that the Constitution Bench had considered this position.
That is not so. He submitted that the directions of this Court on
16th February, 1984 were not given per incuriam or void for any
reason. He referred us to Dias on jurisprudence, 5th Edition, page
128 and relied on the decision of Milianges v. George Frank
(Textiles) Ltd., 66 [1975] 3 All E.R. 801 at 821. He submitted that
the per incuriam rule A does not apply where the previous authority
is alluded to. It is true that previous statute is referred to in the
other judgment delivered on the same date in connection with
different contentions. Section 7(1) was not referred to in respect of
the directions given on 16th February, 1984 in the case of R.S. Nayak
v. A.R. Antulay (supra). Therefore, as mentioned hereinbefore the
observations indubitably were per incuriam. In this case in view of
the specific language used in section 7, it is not necessary to
consider the other submissions of Shri Jethmalani, whether the
procedure for trial by Special Judges under the Code has stood
repealed or not. The concept of repeal may have no application in
this case. It is clear that words should normally be given their
ordinary meaning bearing in mind the context. It is only where the
literal meaning is not clear that one resorts to the golden rule of
interpretation or the mischief rule of interpretation. This is well
illustrated from the observations of Tindal, C.J. in Sussex Peerage
Claim, [18441 11 Cl & Fin 85 at 143. He observed:
"The only rule for the construction of Acts of Parliament is
that they should be construed according to the intent of the
Parliament which passed the Act. If the words of the statute are in
themselves precise and unambiguous, then no more can be necessary
than to expound those words in that natural and ordinary sense. The
words themselves alone do, in such case, best declare the intention
of the lawgiver. But if any doubt arises from the terms employed by
the legislature, it has always been held a safe means of collecting
the intention, to call in aid the ground and cause of making the
statute, and to have recourse to the preamble, which, according to
Chief Justice Pyer, Stewell v. Lord Zouch, [1569] 1 Plowd 353 at 369
is a key to open the minds of the makers of the Act, and the
mischiefs which they intend to redress".
This passage states the commonly accepted view concerning the
relationship between the literal and mischief rules of interpretation
of statutes. Here there is no question as to what was the previous
law and what was intended to be placed or replaced as observed by
Lord Wilberforce in 274 House of Lords Debate, Col. 1294 on 16th
November, 1966, see Cross; Statutory Interpretation, second edition,
page 36. He observed that the interpretation of legislation is just a
part of the process of being a good lawyer; a multi-faceted thing,
calling for many varied talents; not a subject which can be confined
in rules.
67 When the words are clear nothing remains to be seen. If words
are as such ambiguous or doubtful other aids come in.
In this context, the submission of controversy was whether the
Code repealed the Act of 1952 or whether it was repugnant or not is
futile exercise to undertake. Shri Jethmalani distinguished the
decision in Chadha's case, which has already been discussed. It is
not necessary to discuss the controversy whether the Chartered High
Courts contained the Extraordinary original Criminal Jurisdiction by
the Letters Patent.
Article 134(1)(b) does not recognise in every High Court power to
withdraw for trial cases from any Court subordinate to its authority.
At least this Article cannot be construed to mean where power to
withdraw is restricted, it can be widened by virtue of Article
134(1)(b) of the Constitution. Section 374 of the Code undoubtedly
gives a right of appeal. Where by a specific clause of a specific
statute the power is given for trial by the Special Judge only and
transfer can be from one such Judge to another Special Judge, there
is no warrant to suggest that the High Court has power to transfer
such a case from a Judge under section 6 of the Act of 1952 to
itself. It is not a case of exclusion of the superior Courts. So the
submissions made on this aspect by Shri Jethmalani are not relevant.
Dealing with the submission that the order of the Constitution
Bench was void or non-est and it violated the principles of natural
justice, it was submitted by Shri Jethmalani that it was factually
incorrect. Inspite of the submissions the appellant did not make any
submission as to directions for transfer as asked for by Shri
Tarkunde. It was submitted that the case should be transferred to the
High Court. The Court merely observed there that they had given ample
direction. No question of submission arose after the judgment was
delivered. In any case, if this was bad the fact that no objection
had been raised would not make it good. No question of technical
rules or res judicata apply, Shri Jethmalani submitted that it would
amount to an abuse of the process of the Court. He referred us to Re
Tarling, [1979] 1 All E.R. 981 at 987; Ali v. Secretary of State for
the Home Department, [1984] 1 All E.R. 1009 at 1014 and Seervai's
Constitutional Law, Vol. 1, pages 260 to 265. We are of the opinion
that these submissions are not relevant.
There is no abuse of the process of the Court. Shri Jethmalani
submitted that there was no prejudice to the accused. There was
prejudice to the accused in being singled out as a special class of
accused for a special dispensation without room for any appeal as of
right and without power of the revision to the High Court. There .
prejudice in that.
Reliance placed on the decision of this Court in 68 Ramesh Chandra
Arora v. The State, [1960] 1 S.C.R. 924 at 927 was not proper in the
facts of this case.
If a discrimination is brought about by judicial perception and
not by executive whim, if it is unauthorised by law, it will be in
derogation of the right of the appellant as the special procedure in
Anwar Ali Sarkar's case (supra) curtailed the rights and privileges
of the accused. Similarly, in this case by judicial direction the
rights and privileges of the accused have been curtailed without any
justification in law. Reliance was placed on the observations of the
seven Judges Bench in Re: Special Courts Bill, 1978 (supra). Shri
Jethmalani relied on the said observations therein and emphasised
that purity in public life is a desired goal at all times and in all
situations and ordinary Criminal Courts due to congestion of work
cannot reasonably be expected to bring the prosecutions to speedy
termination. He further submitted that it is imperative that persons
holding high public or political office must be speedily tried in the
interests of justice.
Longer these trials last, justice will tarry, assuming the charges
to be justified, greater will be the impediments in fostering
democracy, which is not a plant of easy growth.
All this is true but the trial even of person holding public
office though to be made speedily must be done in accordance with the
procedure established by law. The provisions of section 6 read with
section 7 of the Act of 1952 in the facts and circumstances of this
case is the procedure established by law; any deviation even by a
judicial direction will be negation of the rule of law.
Our attention was drawn to Article 145(e) and it was submitted
that review can be made only where power is expressly conferred and
the review is subject to the rules made under Article 145(e) by the
Supreme Court. The principle of finality on which the Article
proceeds applies to both judgments and orders made by the Supreme
Court. But directions given per incuriam and in violation of certain
constitutional limitations and in derogation of the principles of
natural justice can always be remedied by the court ex debite
justitiae. Shri Jethmalani's submission was that ex debite justitiae,
these directions could not be recalled. We are unable to agree with
this submission.
The Privy Council in Isaacs v. Robertson, [1984] 3 A.E.R. 140 held
that orders made by a Court of unlimited jurisdiction in the course
of contentious litigation are either regular or irregular. If an
order is regular it can only be set aside by an appellate Court; if
it is irregular it can be set aside by the Court that made it on
application being made to that Court either under rules of Court
dealing expressly 69 with setting aside orders for irregularity or ex
debite justitiae if the circumstances warranted, namely, where there
was a breach of the rules of natural justice etc. Shri Jethmalani
urged before us that Lord Diplock had in express terms rejected the
argument that any orders of a superior Court of unlimited
jurisdiction can over be void in the sense that they can be ignored
with impunity. We are not concerned with that. Lord Diplock delivered
the judgment.
Another Judge who sat in the Privy Council with him was Lord Keith
of Kinkel. Both these Law Lords were parties to the House of Lords
judgment in Re Racal Communications Ltd .
case [1980] 2 A.E.R. 634 and their Lordships did not extend this
principle any further. Shri Jethmalani submitted that there was no
question of reviewing an order passed on the construction of law.
Lord Scarman refused to extend the Anisminic principle to superior
Courts by the felicitous statement that this amounted to comparison
of incomparables.
We are not concerned with this controversy. We are not comparing
incomparables. We are correcting an irregularity committed by Court
not on construction or misconstruction of a statute but on
non-perception of certain provisions and certain authorities which
would amount to derogation of the constitutional rights of the
citizen.
The directions given by the order of 16th February, 1984 at page
557 were certainly without hearing though in the presence of the
parties. Again consequential upon directions these were challenged
ultimately in this Court and finally this Court reserved the right to
challenge these by an appropriate application.
The directions were in deprival of Constitutional rights and
contrary to the express provisions of the Act of 1952. The directions
were given in violation of the principles of natural justice. The
directions were without precedent in the background of the Act of
1952. The directions definitely deprived the appellant of certain
rights of appeal and revision and his rights under the Constitution.
We do not labour ourselves on the question of discretion to
disobey a judicial order on the ground of invalid judicial order. See
discretion to Disobey by Mertimer R. Kadish and Sanford H. Kadish
pages 111 and 112.
These directions were void because the power was not there for
this Court to transfer a proceeding under the Act of 1952 from one
Special Judge to the High Court. This is not a case of collateral
attack on judicial proceeding; it is a case where the Court having no
Court superior to it rectifies its own order. We recognise that the
distinction between an error which entails absence of jurisdiction
and 70 an error made within the jurisdiction is very fine. So fine
indeed that it is rapidly being eroded as observed by Lord
Wilberforce in Anisminic Ltd. v. Foreign Compensation Commissioner,
[1959] 1 All E.R. 208 at 244. Having regard to the enormity of the
consequences of the error to the appellant and by reason of the fact
that the directions were given suo motu, we do not find there is
anything in the observations of Ittavira Mathai v. Varkey Varkey and
another, [19641 1 S.C.R. 495 which detract the power of the Court to
review its judgment ex debite justitiae in case injustice has been
caused. No court, however, high has jurisdiction to give an order
unwarranted by the Constitution and, therefore, the principles of
Bhatia Co- operative Housing Society Ltd. v. D. C. Patel, [1953]
S.C.R.
185 at 190 would not apply.
ln giving the directions this Court infringed the Constitutional
safeguards granted to a citizen or to an accused and injustice
results therefrom. It is just and proper for the Court to rectify and
recall that in justice, in the peculiar facts and circumstances of
this case This case has caused us considerable anxiety. The appellant
accused has held an important position in this country, being the
Chief Minister of a premier State of the country. He has been charged
with serious criminal offences.
His trial in accordance with law and the procedure established by
law would have to be in accordance with the 1952 Act. That could not
possibly be done because of the directions of this Court dated 16th
February, 1984, as indicated above. It has not yet been found whether
the appellant is guilty or innocent. It is unfortunate, unfortunate
for the people of the State, unfortunate for the country as a whole,
unfortunate for the future working of democracy in this country
which, though is not a plant of an easy growth yet is with deep root
in the Indian polity that delay has occurred due to procedural
wrangles. The appellant may be guilty of grave offences alleged
against him or he may be completely or if not completely to a large
extent, innocent. Values in public life and perspective of these
values in public life, have undergone serious changes and erosion
during the last few decades. What was unheard of before is common
place today. A new value orientation is being undergone in our life
and in our culture. We are at the threshold of the cross-roads of
values. It is, for the sovereign people of the country to settle
those conflicts yet the Courts have vital roles to play in such
matters.
With the avowed object of speedier trial the case of the appellant
had been transferred to the High Court but on grounds of expediency
of trial he cannot be subjected to a procedure unwarranted by law,
and contrary to the constitutional provisions. The appellant may or
may not be an ideal 71 politician. It is a fact, however, that the
allegations have been brought against him by a person belonging to a
political party opposed to his but that is not the decisive factor.
If the appellant Shri Abdul Rehman Antulay has infringed law, he must
be dealt with in accordance with the law. We proclaim and pronounce
that no man is above the law, but at the same time reiterate and
declare that no man can be denied his rights under the Constitution
and the laws. He has a right to be dealt with in accordance with the
law and not in derogation of it. This Court? in its anxiety to
facilitate the parties to have a speedy trial gave directions on 16th
February, 1984 as mentioned hereinbefore without conscious awareness
of the exclusive jurisdiction of the Special Courts under the 1952
Act and that being the only procedure established by law, there can
be no deviation from the terms of Article 21 of the Constitution of
India.
That is the only procedure under which it should have been guided.
By reason of giving the directions on 16th February, 1984 this Court
had also unintentionally caused the appellant the denial of rights
under Article 14 of the Constitution by denying him the equal
protection of law by being singled out for a special procedure not
provided for by law. When these factors are brought to the notice of
this Court, even if there are any technicalities this Court should
not feel shackled and decline to rectify that injustice or other vise
the injustice noticed will remain forever a blot on justice. It has
been said long time ago that "Actus Curiae Neminem Gravabit"-an
act of the Court shall prejudice no man. This maxim is founded upon
justice and good sense and affords a safe and certain guide for the
administration of the law.
Lord Cairns in Alexander Rodger v. The Comptoir D'escompte De
Paris, (Law Reports Vol. III 1869-71 page 465 at page 475) observed
thus:
"Now, their Lordships are of opinion, that one of the first
and highest duties of all Courts is to take care that the act of the
Court does no injury to any of the Suitors, and when the expression
'the act of the Court' is used, it does not mean merely the act of
the Primary Court, or of any intermediate Court of appeal, but the
act of the Court as a whole, from the lowest Court which entertains
jurisdiction over the matter up to the highest Court which finally
disposes of the case.
It is the duty of the aggregate of those Tribunals, if I may use
the expression, to take care that no act of the Court in the course
of the whole of the proceedings does an injury to the suitors in the
Court." 72 This passage was quoted in the Gujarat High Court by
D.A. Desai, J. speaking for the Gujarat High Court in Vrajlal v.
Jadavji (supra) as mentioned before. It appears that in giving
directions on 16th February, 1984, this Court acted per incuriam
inasmuch it did not bear in mind consciously the consequences and the
provisions of sections 6 and 7 of the 1952 Act and the binding nature
of the larger Bench decision in Anwar Ali Sarkar's case (supra) which
was not adverted to by this Court. The basic fundamentals of the
administration of justice are simple. No man should suffer because of
the mistake of the Court. No man should suffer a wrong by technical
procedure of irregularities. Rules or procedures are the hand-maids
of justice and not the mistress of the justice. Ex debite justitiae,
we must do justice to him. If a man has been wronged so long as it
lies within the human machinery of administration of justice that
wrong must be remedied. This is a peculiar fact of this case which
requires emphasis.
Shri Rao, learned counsel for the appellant has vehemently
canvassed before us that the appellant has suffered a great wrong for
over six and a half years. He has undergone trials and proceedings
because of the mistakes of the Court. Shri Rao submitted that the
appellant should be made not to suffer more. Counsel urged that
political battles must be fought in the political arena. Yet a charge
of infraction of law cannot remain uninvestigated against an
erstwhile Chief Minister of a premier State of the country.
Shri Rao has canvassed before us on the authority of Hussainara
Khatoon v. Home Secretary, State of Bihar, Patna, [1979] 3 S.C.R. 169
at 179-180; Kadra Pahadiyal (1) v. State of Bihar, A.I.R. 1981 S.C.
939; Kadra Pahadiya (II) v. State of Bihar, A.I.R. 1982 S.C. 1167 and
Sheela Barse v. Union of India, A.I.R. 1986 S.C. 1773. He has,
however, very strongly relied upon the observations of this Court in
SukDas v.
Union Territory of Arunachal Pradesh (supra). In that case the
appellant a government servant was tried and convicted to suffer
imprisonment for two years for offences under Section 506 read with
Section 34, I.P.C. He was not represented at the trial by any lawyer
by reason of his inability to afford legal representation. On appeal
the High Court held that the trial was not vitiated since no
application for legal aid was made by him. On appeal this Court
quashed the conviction and considered the question whether the
appellant would have to be tried in accordance with law after
providing legal assistance to him. This Court felt that in the
interests of justice the appellant should be reinstated in service
without back wages and accordingly directed that no trial should take
place. Shri Rao submitted that we should in the 73 facts of this case
in the interests of justice direct that the appellant should not be
tried again. Shri Rao submitted to let the appellant go only on this
long delay and personal inconveniences suffered by the appellant, no
more injury be caused to him. We have considered the submission. Yet
we must remind ourselves that purity of public life is one of the
cardinal principal which must be upheld as a matter of public policy.
Allegations of legal infractions and criminal infractions must be
investigated in accordance with law and procedure established under
the Constitution. Even if he has been wronged, if he is allowed to be
left in doubt that would cause more serious damage to the appellant.
Public confidence in public administration should not be eroded any
further. One wrong cannot be remedied by another wrong.
ln the aforesaid view of the matter and having regard to the facts
and circumstances of the case, we are of the opinion that the legal
wrong that has been caused to the appellant should be remedied. Let
that wrong be therefore remedied. Let right be done and in doing so
let no more further injury be caused to public purpose.
ln the aforesaid view of the matter the appeal is allowed; all
proceedings in this matter subsequent to the directions of this Court
on 16th February, 1984 as indicated before are set aside and quashed.
The trial shail proceed in accordance with law, that is to say under
the Act of 1952 as mentioned hereinbefore.
RANGANATH MISRA, J: I have had the advantage of perusing the
judgment proposed by my learned Brother Mukharji, J. While I agree
with the conclusion proposed by my esteemed Brother, keeping the
importance of the matter, particularly the consequences the decision
may generate as also the fact that I was a party to the two-Judge
Bench decision of this Court reported in 1986 (2) SCC 716 in view, I
propose to express my opinion separately.
Abdul Rehman Antulay, the appellant, was the Chief Minister of the
State of Maharashtra from 1980 till January 20, 1982, when he
resigned his office but continued to be a member of the Maharashtra
Legislative Assembly. Ramdas Shrinivas Nayak, Respondent No. I
herein, lodged a complaint in the Court of Chief Metropolitan
Magistrate, 28th Esplanade, Bombay, on September ll, 1981, against
Antulay alleging commission of several offences under the lndian
Penal Code as also Section 5(2) of the Prevention of Corruption Act,
1947 ('1947 Act' for short). The learned Magistrate was of the view
that prosecution under Sections 161 and 165 of the Penal Code and 74
Section 5 of the 1947 Act required sanction as a condition precedent
and in its absence the complaint was not maintainable. The Governor
of Bombay later accorded sanction and the Respondent no. 1 filed a
fresh complaint, this time in the Court of the Special Judge of
Bombay, alleging the commission of those offences which had formed
the subject- matter of the complaint before the Magistrate. On
receiving summons from the Court of the particular Special Judge,
Antulay took the stand that the said Special Judge had no
jurisdiction to entertain the complaint in view of the provisions of
Section 7 of the Criminal Law Amendment Act, 1952 (hereinafter
referred to as the 1952 Act) to take cognizance and such cognizance
could not be taken on a private complaint. These objections were
overruled by the Special judge by order dated October 20, 1982, and
the case was set down for recording evidence of the prosecution. The
Criminal Revision Petition of the accused against the order of the
Special Judge was rejected by the Bombay High Court and it held that
a private complaint was maintainable and in view of the notification
specifying a particular Special Judge for the offences in question
there was no basis for the objections. This Court granted special
leave to the accused against the decision of the High Court that a
private complaint was maintainable. Criminal Appeal No. 347 of 1983
thus came to be instituted. ln the meantime, objection raised before
the Special Judge that without sanction the accused who still
continued to be a member of Legislative Assembly, could not be
prosecuted came to be accepted by the Special Judge. The complainant
filed a criminal revision application before the High Court
questioning that order. This Court granted special leave against the
decision that sanction was necessary, whereupon Criminal Appeal No.
356 of 1983 was registered and the pending criminal revision
application before the High Court was transferred to this Court. Both
the criminal appeals and the transferred criminal revision were heard
together by a five-Judge Bench of this Court but the two appeals were
disposed of by two separate judgments delivered on February 16, 1984.
The judgment in Criminal Appeal No. 347 of 1983 is reported in (1984)
2 SCR 914. In the present appeal we are not very much concerned with
that judgment. The judgment of Criminal Appeal No. 356 of 1983 is
reported in (1984) 2 SCR 495. As already noticed the main theme of
the criminal appeal was as to whether a member of the Legislative
Assembly was a public servant for whose prosecution for the offences
involved in the complaint sanction was necessary as a condition
precedent. This Court at page 557 of the Reports came to hold:
"To sum up, the learned Special Judge was clearly in 75 error
in holding that M.L.A. is a public servant within the meaning of the
expression in Section 12(a) and further erred in holding that a
sanction of the Legislative Assembly of Maharashtra or majority of
the members was a condition precedent to taking cognizance of
offences committed by the accused. For the reasons herein stated both
the conclusions are wholly unsustainable and must be quashed and set
aside." Consequently this Court directed:
"This appeal accordingly succeeds and is allowed. The order
and decision of the learned Special Judge Shri R.B. Sule dated July
25, 1983 discharging the accused in Special Case No. 24 of 1982 and
Special Case No. 3/1983 is hereby set aside and the trial shall
proceed further from the stage where the accused was discharged."
This Court gave a further direction to the following effect:
"The accused was the Chief Minister of a premier State-the
State of Maharashtra. By a prosecution launched as early as on
September 11, 1981, his character and integrity came under a cloud.
Nearly 2 1/2 years have rolled by and the case has not moved an inch
further. An expeditious trial is primarily in the interest of the
accused and a mandate of Article 21. Expeditious disposal of a
criminal case is in the interest of both, the prosecution and the
accused. Therefore, Special Case No. 24 of 1982 and Special Case No.
3/83 pending in the Court of Special Judge, Greater Bombay Shri R.B.
Sule are withdrawn and transferred to the High Court of Bombay with a
request to the learned Chief Justice to assign these two cases to a
sitting Judge of the High Court. On being so assigned, the learned
Judge may proceed to expeditiously dispose of the cases preferably by
holding the trial from day to day." Pursuant to this direction,
the two cases came to be posted for trial before Khatri J. Of the
Bombay High Court and trial opened on April 9, 1984. The appellant
challenged Khatri J.'s jurisdiction on 12th March, 1984 when the
matter was first placed before him but by two separate orders dated
13th March, 1984 and 16th March, 1984, the learned Judge rejected the
objection by saying that he was bound by 76 this Court's direction of
the 16th February, 1984. Antulay then moved A this Court by filing an
application under Article 32 of the Constitution. A two-Judge Bench
consisting of Desai and A.N. Sen. JJ. by order dated 17th April, 1984
dismissed the applications by saying:
Sen, J .:
"There is no merit in this writ petition. The writ petition
is accordingly dismissed.
In my view, the writ petition challenging the validity of the
order and judgment passed by this Court as nullity or otherwise
incorrect cannot be entertained. I wish to make it clear that the
dismissal of this writ petition will not prejudice the right of the
petitioner to approach the Court with an appropriate review petition
or to file any other application which he may be entitled in law to
file." Desai, J.:
"I broadly agree with the conclusion recorded by my brother.
The learned Judge in deciding the SLP (Crl.) Nos. 1949-50 of 1984 has
followed the decision of this Court. The learned Judge was perfectly
justified and indeed it was the duty of the learned Judge to follow
the decision of this Court which is binding on him. Special leave
petitions are dismissed. " (1984(3) SCR 482).
16 witnesses were examined by Khatri J. by July 27, 1984.
Khatri J. was relieved of trying the case on his request,
whereupon the learned Chief Justice nominated Mehta J. to continue
the trial. 41 more witnesses were examined before him and at the
stage when 57 witnesses in all had been examined for the prosecution,
the Trial Judge invited the parties to consider the framing of
charges. 43 draft charges were placed for his consideration on behalf
of the prosecution and the learned Trial Judge framed 21 charges and
recorded an order of discharge in respect of the remaining 22. At the
instance of the complainant, Respondent No. 1, the matter came before
this Court in appeal on special leave and a two-Judge Bench of which
I happened to be one, by judgment dated April 17, 1986, in Criminal
Appeal No. 658 of 1985 [(1962) 2 SCC 716] set aside the order of
discharge in regard to the several offences excepting extortion and
directed the learned Trial 77 Judge to frame charges for the same.
This Court requested the learned Chief Justice of the Bombay High
Court to nominate another Judge to take up the matter from the stage
at which Mehta J. had made the order of discharge. Shah J.
came to be nominated by the learned Chief Justice to continue the
trial. By order dated July 24, 1986, Shah J.
rejected the application of the accused for proceeding against the
alleged co-conspirators by holding that there had been a long delay,
most of the prosecution witnesses had already been examined and that
if the co-conspirators were then brought on record, a de novo trial
would be necessitated. The appellant challenged the order of Shah J.
by filing a special leave petition before this Court wherein he
further alleged that the High Court had no jurisdiction to try the
case. A two-Judge Bench, of which Mukherji J., my learned brother,
was a member, granted special leave, whereupon this Criminal Appeal
(No. 468 of 1986) came to be registered. The Respondent No. 1 asked
for revocation of special leave in Criminal Miscellaneous Petition
No. 4248 of 1986. While rejecting the said revocation application, by
order dated October 29, 1986, the two-Judge Bench formulated several
questions that arose for consideration and referred the matter for
hearing by a Bench of seven Judges of the Court. That is how this
seven-Judge Bench has come to be constituted to hear the appeal.
It is the settled position in law that jurisdiction of courts
comes solely from the law of the land and cannot be exercised
otherwise. So far as the position in this country is concerned
conferment of jurisdiction is possible either by the provisions of
the Constitution or by specific laws enacted by the Legislature. For
instance, Article 129 confers all the powers of a court of record on
the Supreme Court including the power to punish for contempt of
itself.
Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer
different jurisdictions on the Supreme Court while Articles 225, 226,
227, 228 and 230 deal with conferment of jurisdiction on the High
Courts. Instances of conferment of jurisdiction by specific law are
very common. The laws of procedure both criminal and civil confer
jurisdiction on different courts. Special jurisdiction is conferred
by special statute. It is thus clear that jurisdiction can be
exercised only when provided for either in the Constitution or in the
laws made by the Legislature. Jurisdiction is thus the authority or
power of the court to deal with a matter and make an order carrying
binding force in the facts. In support of judicial opinion for this
view reference may be made to the permanent edition of 'Words and
Phrases Vol.
23A' at page 164. It would be appropriate to refer to two small
passages occurring at pages 174 and 175 of the Volume.
At page 174, referring to the decision in Carlile v.
National 78 Oil & Development Co. it has been stated:
"Jurisdiction is the authority to hear and determine, and in
order that it may exist the following are essential: (1) A court
created by law, organized and sitting; (2) authority given it by law
to hear and determine causes of the kind in question; (3) power given
it by law to render a judgment such as it assumes to render; (4)
authority over the parties to the case if the judgment is to bind
them personally as a judgment in personam, which is acquired over the
plaintiff by his appearance and submission of the matter to the
court, and is acquired over the defendant by his voluntary
appearance, or by service of process on him; (5) authority over the
thing adjudicated upon its being located within the court s
territory, and by actually seizing it if liable to be carried away;
(6) authority to decide the question involved, which is acquired by
the question being submitted to it by the parties for decision."
Article 139A of the Constitution authorises this Court to transfer
cases from a High Court to itself or from one High Court to another
and is, therefore, not relevant for our purpose. Section 406 of the
Code empowers this Court to transfer cases and appeals by providing:
"(1) Whenever it is made to appear to the Supreme Court that
an order under this section is expedient for the ends of justice, it
may direct that any particular case of appeal be transferred from one
High Court to another High Court or from a Criminal Court subordinate
to one High Court to another Criminal Court of equal or superior
jurisdiction subordinate to another High Court.
(2) The Supreme Court may act under this section only on the
application of the Attorney- General of India or of a party
interested, and every such application shall be made by motion, which
shall, except when the applicant is the Attorney-General of India or
the Advocate-General of the State, be supported by affidavit or
affirmation.
(3)...................".
The offences alleged to have been committed by the accused here
are either punishable under the Penal Code or under Act 2 of 1947,
both 79 Of which could have been tried in an appropriate court under
the Criminal Procedure Code; but Parliament by the Criminal Law
Amendment Act 46 of 1952 (1952 Act for short) amended both the Penal
Code as also the Criminal Procedure Code with a view to providing for
a more speedy trial of certain offences. The relevant sections of the
1952 Act are sections 6, 7, 8, 9 and 10. For convenience, they are
extracted below:
"6. Power to appoint special Judges (1) The State Government
may, by notification in the Official Gazette, appoint as many special
Judges as may be necessary for such area or areas as may be specified
in the notification to try the following offences, namely, (a) an
offence punishable under section 161, section 162, section 163,
section 164, section 165 or section 165A of the Indian Penal Code (45
of 1860) or section 5 of the Prevention of Corruption Act, 1947 (2 of
1947);
(b) any conspiracy to commit or any attempt to commit or any
abetment of any of the offences specified in clause (a).
(2) A persorn shall not be qualified for appointment as a special
Judge under this Act unless he is, or has been, a Sessions Judge or
an Additional Sessions Judge or an assistant Sessions Judge under the
Code of Criminal Procedure, 1898 (5 of 1898)." "7. Class
triable by Special Judges (1) Notwithstanding anything contained in
the Code of Criminal Procedure? 1898 (5 of 1898) or in any other law
the offences specified in sub-section (1) of section 6 shall be
triable by Special Judges only;
(2) Every offence specified in sub-section (l) of section 6 shall
be tried by the Special Judge for the area within which it was
committed.
Or where there are more Special Judges than one for such area. by
such one of them as may be specified in this behalf by the State
Government.
(3) When trying any case, a Special Judge may also 80 try any
offence other than an offence specified in section 6 A with which the
accused may, under the Code of Criminal Procedure, 1898 (5 of 1898),
be charged at the same trial".
8. Procedure and powers of Special Judges ( 1) A Special Judge may
take cognizance of offences without the accused being committed to
him for trial, and in trying the accused persons, shall follow the
procedure prescribed by the Code of Criminal Procedure, 1898 (5 of
1898), for the trial of warrant cases by Magistrates.
(2) A special Judge, may, with a view to obtaining the evidence of
any person supposed to have been directly or indirectly concerned in,
or privy to, an offence, tender a pardon to such person on condition
of his making a full and true disclosure of the whole circumstances
within his knowledge relating to the offence and to every other
person concerned, whether as principal or abettor, in the commission
thereof; and any pardon so tendered shall, for the purposes of
sections 339 and 339-A of the Code of Criminal Procedure, 1898 (5 of
1898), be deemed to have been tendered under section 338 of that
Code.
(3) Save as provided in sub-section ( 1 ) or sub-section (2), the
provisions of the Code of Criminal Procedure 1898 (5 of 1898), shall,
so far as they are not inconsistent with this Act, apply to the
proceedings before a Special Judge; and for the purposes of the said
provisions, the Court of the Special Judge shall be deemed to be a
Court of Session trying cases without a jury or without the aid of
assessors and the person conducting a prosecution before a Special
Judge shall be deemed to be a public prosecutor.
(3-A) In particular, and without prejudice to the generality of
the provisions contained in sub- section (3), the provisions of
sections 350 and 549 of the Code of Criminal Procedure, 1898 (5 of
1898), shall, so far as may be. apply to the proceedings before a
Special Judge, and for the purposes of the said provisions a special
Judge shall be deemed to be a Magistrate.
(4) A special Judge may pass upon any person convicted by him any
sentence authorized by law for punish- 81 ment of the offence of
which such person is convicted." "9. Appeal and
revision-The High Court may exercise, so far as they may be
applicable, all the powers conferred by Chapters XXXI and XXXII of
the Code of Criminal Procedure, I898 (1; of 1898) on a High Court as
if the Court of the special Judge were a Court of Session trying
cases without a jury within the local limits of the jurisdiction of
the High Court. ' "10. Transfer of certain pending cases-All
cases triable by a special Judge under section 7 which, immediately
before the commencement of this Act, were pending before any
Magistrate shall, on such commencement, be forwarded for trial to the
special Judge having jurisdiction over such cases." On the ratio
of the seven-Judge Bench decision of this Court in the Slate of West
Bengal v. Anwar Ali Sarkar, [ 1952] SCR 284 the vires of this Act are
not open to challenge. The majority of the learned Judges in Anwar
Ali Sarkar's case expressed the view that it was open to the
Legislature to set up a special forum for expedient trial of
particular class of cases. Section 7( l) has clearly provided that
offences specified in sub-section (1) of section 6 shall be triable
by the Special Judge only and has taken away the power of the courts
established under the Code of Criminal Procedure to try those
offences. Section 10 of the Act required all pending cases on the
date of commencement of the Act to stand transferred to the
respective Special Judge. Unless there be challenge to the provision
creating exclusive jurisdiction of the Special Judge, the procedural
law in the Amending Act is binding on courts as also the parties and
no court is entitled to make orders contrary to the law which are
binding. As long as section 7 of the Amending Act of 1952 hold the
field it was not open to any court including the apex Court to act
contrary to section 7(1) of the Amending Act.
The power to transfer a case conferred by the Constitution or by
section 406 of the Code of Criminal Procedure does not specifically
relate to the special Court.
Section 406 of the Code could perhaps be applied on the principle
that the Special Judge was a subordinate court for transferring a
case from one special Judge to another special Judge. That would he
so because such a transfer would not contravene the mandate of
section 7( l ) of the Amending Act of 1952 . While that may be so,
the provisions for transfer, already referred to. do not authorise H
82 transfer of a case pending in the court of a special Judge first
to the Supreme Court and then to the High Court for trial. A four
Judge Bench in Raja Soap Factory v. S.P.
Santharaj, [1956] 2 SCR 800 was considering the jurisdiction of
the High Court to deal with a matter Shah J., as he then was, spoke
for the court thus:
"But if the learned Judge, as reported in the summary of the
judgment, was of the opinion that the High Court is competent to
assume to itself jurisdiction which it does not otherwise possess,
merely because an 'extra-ordinary situation' has arisen, with respect
to the learned Judge, we are unable to approve of that view. By
'jurisdiction' is meant the extent of the power which is conferred
upon the court by its Constitution to try a proceeding; its exercise
cannot be enlarged because what the learned Judge calls an extra
ordinary situation 'requires' the Court to exercise it".
Brother Mukharji in his elaborate judgment has come to the
conclusion that the question of transferring the case from the court
of the special Judge to the High Court was not in issue before the
five- Judge Bench. Mr. Jethmalani in course of the argument has
almost accepted the position that this was not asked for on behalf of
the complainant at the hearing of the matter before the Constitution
Bench. From a reading of the judgment of the Constitution Bench it
appears that the transfer was a suo motu direction of the court.
Since this particular aspect of the matter had not been argued and
counsel did not have an opportunity of pointing out the legal bar
against transfer, the learned Judges of this Court obviously did not
take note of the special provisions in section 7(1) of the 1952 Act.
I am inclined to agree with Mr. Rao for Antulay that if this position
had been appropriately placed, the direction for transfer from the
court of exclusive jurisdiction to the High Court would not have been
made by the Constitution Bench. It is appropriate to presume that
this Court never' intends to act contrary to law.
There is no doubt that after the Division Bench of Desai and Sen,
JJ. dismissed the writ petition and the special leave petitions on
17th April, 1984, by indicating that the petitioner could file an
appropriate review petition or any other application which he may be
entitled in law to file. no further action was taken until charges
Were framed on the basis of evidence of 57 witnesses and a mass of
documents. After a gap of more than three years.
want of jurisdiction of the High Court was sought to be reagitated
before the two-Judge Bench 83 in the present proceedings. During this
intervening period of three years or so a lot of evidence was
collected by examining the prosecution witnesses and exhibiting
documents. A learned Judge of the High Court devoted his full time to
the case. Mr. Jethmalani pointed out to us in course of his argument
that the evidence that has already been collected is actually almost
three-fourths of what the prosecution had to put in. Court's time has
been consumed, evidence has been collected and parties have been put
to huge expenses. To entertain the claim of the appellant that the
transfer of the case from the Special Judge to the High Court was
without authority of law at this point of time would necessarily wipe
out the evidence and set the clock back by about four years. It may
be that some of the witnesses may no longer be available when the de
novo trial takes place. Apart from these features, according to Mr.
Jethmalani to say at this stage that the DIRECTION given by a
five-Judge Bench is not binding and, therefore, not operative will
shake the confidence of the litigant public in the judicial process
and in the interest of the system it should not be done. Long
arguments were advanced on either side in support of their respective
stands-the appellant pleading that the direction for transfer of the
proceedings from the Special Judge to the High Court was a nullity
and Mr. Jethmalani contending that the apex Court had exercised its
powers for expediting the trial and the action was not contrary to
law. Brother Mukharji has dealt with these submissions at length and
I do not find any necessity to dwell upon this aspect in full
measure. In the ultimate analysis I am satisfied that this Court did
not possess the power to transfer the proceedings from the Special
Judge to the High Court. Antulay has raised objection at this stage
before the matter has been concluded. In case after a full dressed
trial, he is convicted, there can be no doubt that the wise men in
law will raise on his behalf, inter alia, the same contention as has
been advanced now by way of challenge to the conviction. If the
accused is really guilty of the offences as alleged by the
prosecution there can be no two opinions that he should be suitably
punished and the social mechanism of punishing the guilty must come
heavily upon him. No known loopholes should be permitted to creep in
and subsist so as to give a handle to the accused to get out of the
net by pleading legal infirmity when on facts the offences are made
out. The importance of this consideration should not be overlooked in
assessing the situation as to whether the direction of this Court as
contained in the five-Judge Bench decision should be permitted to be
questioned at this stage or not.
Mr. Rao for Antulay argued at length and Brother Mukharji has
noticed all those contentions that by the change of the forum of the
84 trial the accused has been prejudiced. Undoubtedly, by this
process he misses a forum of appeal because if the trial was handled
by a Special Judge, the first appeal would lie to the High Court and
further appeal by special leave could come before this Court. If the
matter is tried by the High Court there would be only one forum of
appeal being this Court, whether as of right or by way of special
leave. The appellant has also contended that the direction violates
Article 14 of the Constitution because he alone has been singled out
and picked up for being treated differently from similarly placed
accused persons. Some of these aspects cannot be overlooked with
ease. I must, however, indicate here that the argument based upon the
extended meaning given to the contents of Article 21 of the
Constitution, though attractive have not appealed to me.
One of the well-known principles of law is that decision made by a
competent court should be taken as final subject to further
proceedings contemplated by the law of procedure. In the absence of
any further proceeding, the direction of the Constitution Bench of
16th of February, 1984 became final and it is the obligation of
everyone to implement the direction of the apex Court. Such an order
of this Court should by all canons of judicial discipline be binding
on this Court as well and cannot be interfered with after attaining
finality. Brother Mukharji has referred to several authorities in
support of his conclusion that an order made without jurisdiction is
not a valid one and can be ignored, overlooked or brushed aside
depending upon the situation. I do not propose to delve into that
aspect in my separate judgment.
It is a well-settled position in law that an act of the court
should not injure any of the suitors. The Privy Council in the
well-known decision of Alexander Rodger v.
The Comptori D' Escompte De Paris, [1871] 3 P.C. 465 observed:-
"One of the first and highest duties of all courts is to take
care that the act of the court does no injury to any of the suitors,
and when the expression act of the court is used, it does not mean
merely the act of the primary court, or of any intermediate court of
appeal, but the act of the court as a whole, from the lowest court
which entertains jurisdiction over the matter upto the highest court
which finally disposes of the case.
It is the duty of the aggregate of those Tribunals, if I may use
the expression, to take care that no act of the court in the course
of the whole of the proceed 85 ings does an injury to the suitors in
courts." Brother Mukharji has also reffered to several other
authorities which support this view.
Once it is found that the order of transfer by this Court dated
16th of February, 1984, was not within jurisdiction by the direction
of the transfer of the proceedings made by this Court, the appellant
should not suffer.
What remains to be decided is the procedure by which the direction
of the 16th of February, 1984, could be recalled or altered. There
can be no doubt that certiorari shall not lie to quash a judicial
order of this Court. That is so on account of the fact that the
Benches of this Court are not subordinate to larger Benches thereof
and certiorari is, therefore, not admissible for quashing of the
orders made on the judicial side of the court. Mr. Rao had relied
upon the ratio in the case of Prem Chand Garg v. Excise Commissioner,
U.P., Allahabad, [1963] 1 SCR 885. Brother Mukharji has dealt with
this case at considerable length.
This Court was then dealing with an Article 32 petition which had
been filed to challenge the vires of rule 12 of order 35 of this
Court's Rules. Gajendragadkar, J., as the learned Judge then was,
spoke for himself and three of his learned brethren including the
learned Chief Justice. The facts of the case as appearing from the
judgment show that there was a judicial order directing furnishing of
security of Rs.2,500 towards the respondent's costs an(l the majority
judgment directed "In the result, the petition is allowed and
the order passed against the petitioners on December 12, 1961,
calling upon them to furnish security of Rs.2,500 is set aside."
Shah, J. who wrote a separate judgment upheld the vires of the rule
and directed dismissal of the petition. The fact that a judicial
order was being made the subject matter of a petition under Article
32 of the Constitution was not noticed and whether such a proceeding
was tenable was not considered. A nine-Judge Bench of this Court in
Naresh Shridhar Mirajkar & Ors. v. State of Maharashtra &
Anr., [1966] 3 SCR 744 referred to the judgment in Prem Chand Garg's
case (supra). Gajendragadkar, CJ., who delivered the leading and
majority judgment stated at page 765 of the Reports:
"ln support of his argument that a judicial decision 86 can
be corrected by this Court in exercise of its writ jurisdiction under
Article 32(2), Mr.
Setalvad has relied upon another decision of this Court in Prem
Chand Garg v. Excise Commissioner, U. P. Allahabad (supra) . In that
case, the petitioner had been required to furnish security for the
costs of the respondent under rule 12 of order 35 of the Supreme
Court Rules. By his petition filed under Article 32, he contended
that the rule was invalid as it placed obstructions on the
fundamental right guaranteed under Article 32 to move the Supreme
Court for the enforcement of fundamental rights. This plea was upheld
by the majority decision with the result that the order requiring him
to furnish security was vacated. In appreciating the effect of this
decision, it is necessary to bear in mind the nature of the
contentions raised before the Court in that case.
The rule itself, in terms, conferred discretion on the court.
while dealing with applications made under Article 32, to impose such
terms as to costs as to the giving of security as it thinks fit. The
learned Solicitor General who supported the validity of the rule,
urged that though the order requiring security to be deposited may be
said to retard or obstruct the fundamental right of the citizen
guaranteed by Article 32(1), the rule itself could not be effectively
challenged as invalid, because it was merely discretionary; it did
not impose an obligation on the court to demand any security; and he
supplemented his argument by contending that under Article 142 of the
Constitution, the powers of this court were wide enough to impose any
term or condition subject to which proceedings before this Court
could be permitted to be conducted. He suggested that the powers of
this Court under Article 142 were not subject to any of the
provisions contained in Part III including Article 32(1). On the
other hand, Mr. Pathak who challenged the validity of the rule, urged
that though the rule was in form and in substance discretionary, he
disputed the validity of the power which the rule conferred on this
Court to demand security .. It would thus be seen that the main
controversy in the case of Prem Chand Garg centered round the
question as to whether Article 145 conferred powers on this Court to
make rules, though they may be inconsistent with the constitutional
provisions prescribed by Part III. Once it was held that the powers
under Article 142 had to be read subject not only to the fundamental
87 rights, but to other binding statutory provisions, it became clear
that the rule which authorised the making of the impugned order was
invalid. It was in that context that the validity of the order had to
be incidentally examined. The petition was made not to challenge the
order as such, but to challenge the validity of the rule under which
the order was made. Once a rule was struck down as being invalid, the
order passed under the said rule had to be vacated. It is difficult
to see how this decision can be pressed into service by Mr.
Setalvad in support of the argument that a judicial order passed
by this Court was held to be subject to the writ jurisdiction of this
Court itself .. ".
In view of this decision in Mirajkar's case (supra) it must be
taken as concluded that judicial proceedings in this Court are not
subject to the writ jurisdiction thereof.
On behalf of the appellant,- at one stage, it was contended that
the appeal may be taken as a review. Apart from the fact that the
petition of review had to be filed within 30 days-and here there has
been inordinate delay-the petition for review had to be placed before
the same Bench and now that two of the learned Judges of that
Constitution Bench are still available, it must have gone only before
a Bench of five with those two learned Judges. Again under the Rules
of the Court a review petition was not to be heard in Court and was
liable to be disposed of by circulation. In these circumstances. the
petition of appeal could not he taken as a review petition. The
question, therefore, to be considered now is what is the modality to
be followed for vacating the impugned direction.
This being the apex Court, no litigant has any opportunity of
approaching any higher forum to question its decisions. Lord
Buckmaster in 1917 A.C. 170 stated:
"All rules of court are nothing but provisions intended to
secure proper administration of justice. It is, therefore, essential
that they should be made to serve and be subordinate to that
purpose." This Court in Gujarat v. Ram Prakash, [1970] 2 SCR 875
reiterated the position by saying:
"Procedure is the handmaid and not a mistress of 88 law,
intended to subserve and facilitate the cause of justice and not to
govern or obstruct it, like all rules of procedure, this rule demands
a construction which would promote this Once judicial satisfaction is
reached that the direction was not open to be made and it is accepted
as a mistake of the court, it is not only appropriate but also the
duty of the Court to rectify the mistake by exercising inherent
powers.
Judicial opinion heavily leans in favour of this view that a
mistake of the Court can be corrected by the Court itself without any
fetters. This is on the principle as indicated in Alexander Rodger's
case (supra). l am of the view that in the present situation, the
Court's inherent powers can be exercised to remedy the mistake.
Mahajan, J. speaking for a four-Judge Bench in Kishan Deo v. Radha
Kissen, [ 1953] SCR 136, at page 153 stated:
"The Judge had jurisdiction to correct his own error without
entering into a discussion of the grounds taken by the decree-holder
or the objections raised by the judgment debtors . " The Privy
Council in Debi v. Habib, ILR 35 All. 331, pointed out that an abuse
of the process of the Court may be committed by the court or by a
party. Where a court employed a procedure in doing something which it
never intended to do and there is an abuse of the process of the
court it can be corrected. Lord Shaw spoke for the Law lords thus:
"Quite apart from section 151, any court might have rightly
considered itself to possess an inherent power to rectify the mistake
which had been inadvertently made." It was pointed out by the
Privy Council in Murtaza v. Yasin, AIR 1916 PC 8:. that:
"Where substantial injustice would othenwise result, the
court has, in their Lordships opinion, an inherent power to set aside
its own judgments of condemnation so as to let in bona fide claims by
parties .. ".
Indian authorities are in abundance to support the view that
injustice done should be corrected by applying the principle actus
curiae neminem gravabit an act of the court shall prejudice no one.
89 To err is human, is the off-quoted saying. Courts including the
apex one are no exception. To own up the mistake when judicial
satisfaction is reached does not militate against its status or
authority. Perhaps it would enhance both.
It is time to sound a note of caution. This Court under its Rules
of Business ordinarily sits in divisions and not as a whole one. Each
Bench, whether small or large, exercises the powers vested in the
Court and decisions rendered by the Benches irrespective of their
size are considered as decisions of the Court. The practice has
developed that a larger Bench is entitled to overrule the decision of
a smaller Bench notwithstanding the fact that each of the decisions
is that of the Court. That principle, however, would not apply in the
present situation and since we are sitting as a Bench of Seven we are
not entitled to reverse the decision of the Constitution Bench.
Overruling when made by a larger Bench of an earlier decision of a
smaller one is intended to take away the precedent value of the
decision without affecting the binding effect of the decision in the
particular case. Antulay, therefore, is not entitled to take
advantage of the matter being before a larger Bench. In fact, if it
is a case of exercise of inherent powers to rectify a mistake it was
open even to a five-Judge Bench to do that and it did not require a
Bench larger than the Constitution Bench for that purpose.
Mr. Jethmalani had told us during arguments that if there was
interference in this case there was possibility of litigants thinking
that the Court had made a direction by going out of its way because
an influential person like Antulay was involved. We are sorry that
such a suggestion was made before us by a senior counsel. If a
mistake is detected and the apex Court is not able to correct it with
a view to doing justice for fear of being misunderstood, the cause of
justice is bound to suffer and for the apex Court the apprehension
would not be a valid consideration. Today it is Abdul Rehman Antulay
with a political background and perhaps some status and wealth but
tomorrow it can be any ill-placed citizen. This Court while
administering justice does not take into consideration as to who is
before it.
Every litigant is entitled to the same consideration and if an
order is warranted in the interest of justice, the contention of Mr.
Jethmalani cannot stand in the way as a bar to the making of that
order.
There is still another aspect which should be taken note of.
Finality of the orders is the rule. By our directing recall of an
order the well-settled propositions of law would not be set at
naught. Such a 90 situation may not recur in the ordinary course of
judicial functioning and if there be one certainly the Bench before
which it comes would appropriately deal with it. No strait jacket
formula can be laid down for judicial functioning particularly for
the apex Court. The apprehension that the present decision may be
used as a precedent to challenge judicial orders of this Court is
perhaps misplaced because those who are familiar with the judicial
functioning are aware of the limits and they would not seek support
from this case as a precedent. We are sure that if precedent value is
sought to be derived out of this decision, the Court which is asked
to use this as an instrument would be alive to the peculiar facts and
circumstances of the case in which this order is being made.
I agree with the ultimate conclusion proposed by my earned brother
Mukharji.
OZA, J. I had the opportunity to go through opinion prepared by
learned brother Justice Mukharji and I agree with his opinion. I have
gone through these additional reasons prepared by learned brother
Justice R.N. Misra. It appears that the learned brother had tried to
emphasise that even if an error is apparent in a judgment or an order
passed by this Court it will not be open to a writ of certiorari and
I have no hesitation in agreeing with this view expressed. At the
same time I have no hesitation in observing that there should be no
hesitation in correcting an error in exercise of inherent
jurisdiction if it comes to our notice.
It is clear from the opinions of learned brothers Justice Mukharji
and Justice Misra that the jurisdiction to try a case could only be
conferred by law enacted by the legislature and this Court could not
confer jurisdiction if it does not exist in law and it is this error
which is sought to be corrected. Although it is unfortunate that it
is being corrected after long lapse of time. I agree with the opinion
prepared by Justice Mukharji and also the additional opinion prepared
by Justice Misra .
RAY, J. I have the privilege of going through the judgment
prepared by learned brother Mukharji, J and I agreed with the same.
Recently, I have received a separate judgment from brother R.N.
Misra, J and I have decipherred the same.
In both the judgments it has been clearly observed that judicial
order of this court is not amenable to a writ of certiorari for
correcting 91 any error in the judgment. It has also been observed
that the jurisdiction or power to try and decide a cause is conferred
on the courts by the Law of the Lands enacted by the Legislature or
by the provisions of the Constitution. It has also been highlighted
that the court cannot confer a jurisdiction on itself which is not
provided in the law. It has also been observed that the act of the
court does not injure any of the suitors. It is for this reason that
the error in question is sought to be corrected after a lapse of more
than three years. I agree with the opinion expressed by Justice
Mukharji in the judgment as well as the additional opinion given by
Justice Misra in his separate judgment.
VENKATACHALIAH, J. Appellant, a former Chief Minister of
Maharashtra, is on trial for certain offences under Sections 161,
165, Indian Penal Code and under the Prevention of Corruption Act,
1947. The questions raised in this appeal are extra-ordinary in many
respects touching, as they do, certain matters fundamental to the
finality of judicial proceedings. It also raises a question-of far-
reaching consequences-whether, independently of the review
jurisdiction under Article 137 of the Constitution, a different bench
of this Court, could undo the finality of earlier pronouncements of
different benches which have, otherwise, reached finality.
If the appeal is accepted, it will have effect of blowing-off, by
a side-wind as it were, a number of earlier decisions of different
benches of this Court, binding inter-parties, rendered at various
stages of the said criminal prosecution including three judgments of
5 judge benches of this Court. What imparts an added and grim
poignance to the case is that the appeal, if allowed, would set to
naught all the proceedings taken over the years before three
successive Judges of the High Court of Bombay and in which already 57
witnesses have been examined for the prosecution-all these done
pursuant to the direction dated 16.12.1984 issued by a five judge
Bench of this Court. This by itself should be no deterrant for this
Court to afford relief if there has been a gross miscarriage of
justice and if appropriate proceedings recognised by law are taken.
Lord Atkin said "Finality is a good thing, but justice is a
better". [See 60 Indian Appeals 354 PC]. Considerations of
finality are subject to the paramount considerations of justice; but
the remedial action must be appropriate and known to law. The
question is whether there is any such gross miscarriage of justice in
this case, if so whether relief can be granted in the manner now
sought.
The words of caution of the judicial committee in Venkata
Narasimha Appa Row v. The Court of Wards & Ors.
[1886] 1 ILR 660 (at page 664) are worth recalling:
92 "There is a salutary maxim which ought to be observed by
all courts of last resort-interest reipublicae ut sit finis litium.
Its strict observance may occasionally entail hardship upon
individual litigants, but the mischief arising from that source must
be small in comparison with the great mischief which would
necessarily result from doubt being thrown upon the finality of the
decisions of such a tribunal as this." (emphasis supplied).
2. I have had the opportunity, and the benefit, of reading in
draft the learned and instructive opinions of my learned Brothers
Sabyasachi Mukharji J., and Ranganath Misra J. They have, though for
slightly differing reasons, proposed to accept the appeal. This will
have the effect of setting-aside five successive earlier orders of
different benches of the Court made at different stages of the
criminal prosecution, including the three judgments of Benches of
five Judges of this Court in R.S. Nayak v. A.R.
Antulay, [1984] 2 SCR 495 and A . R. Antulay v. R. S. Nayak,
[1984] 2 SCR 914 and R. S. Nayak v. A. R. Antulay, [1984] 3 SCR 412.
I have bestowed a respectful and anxious consideration to the
weighty opinion of my brothers with utmost respect, I regret to have
to deny myself the honour of agreeing with them in the view they take
both of the problem and the solution that has commended itse1f to
them. Apart from other things, how can the effect and finality of
this Court's order dated 17.4.1984 in Writ Petition No. 708 of 1984
be unsettled in these proceedings? Admittedly, this order was made
after hearing and does not share the alleged vitiating factors
attributed to the order dated 16.2.1984. That order concludes
everything necessarily inconsistent with it. In all humility, I
venture to say that the proposed remedy and the procedure for its
grant are fraught with far greater dangers than the supposed
injustice they seek to relieve:
and would throw open an unprecedented procedural flood-gate which
might, quite ironically, enable a repetitive challenge to the present
decision itself on the very grounds on which the relief is held
permissible in the appeal. To seek to be wiser than the law, it is
said, is the very thing by good laws forbidden. Well trodden path is
the best path.
Ranganath Misra J. if I may say so with respect, has rightly
recognised these imperatives:
"It is time to sound a note of caution. This Court 93 under
its rules of business ordinarily sits in divisions and not as a whole
one. Each Bench, whether small or large, exercises the powers vested
in the Court and decisions rendered by the Benches irrespective of
their size are considered as decisions of the Court. The practice has
developed that a larger bench is entitled to over-rule the decision
of a small bench notwithstanding the fact that each of the decisions
is that of the Court. That principle, however, would not apply in the
present situation and since we are sitting as a Bench of Seven we are
not entitled to reverse the decision of the Constitution Bench."
Learned brother, however, hopes this case to be more an exception
than the Rule C "Finality of the orders is the rule. By our
directing recall of an order the well-settled propositions of law
would not be set at naught.
Such a situation may not recur in the ordinary course of judicial
functioning and if there be one, certainly the bench before which it
comes would appropriately deal with it. "
3. A brief advertence to certain antecedent events which
constitute the back-drop for the proper perception of the core-issue
arising in this appeal may not be out of place:
Appellant was the Chief Minister of Maharashtra between 9.6.1980
and 12.1.1982 on which latter date he resigned as a result of certain
adverse findings made against him in a Court proceeding. On 9.8.1982,
Ramdas Srinivas Nayak, respondent No. 1, with the sanction of the
Governor of Maharashtra, accorded on 28.7.1982, filed in the Court of
Special-Judge, Bombay, a criminal Case No. 24 of 1982 alleging
against the appellant certain offences under Section 161 and 165 of
Indian Penal Code and Section 6 of the Prevention of Corruption Act,
1947, of which the Special-Judge took cognisance.
Appellant questioned the jurisdiction of Special Judge to take
cognisance of those offences on a private complaint.
On 20.10.1982, the Special Judge over-ruled the objection.
On 7.3.1983, the High Court dismissed appellant's revision
petition in which the order of the Special Judge was assailed. The
criminal case thereafter stood transferred to another Special Judge,
Shri R.B. Sule. Appellant did not accept the order of the High Court
dated 7.3.1983 against which he 94 came up in appeal to this court,
by Special-leave, in Criminal appeal No. 347 of 1983. During the
pendency of this appeal, however, another important event occurred.
The Special Judge, Shri R.B. Sule, by his order dated 25.7.1983,
discharged the appellant, holding that the prosecution was not
maintainable without the sanction of the Maharashtra Legislative
Assembly, of which the appellant continued to be a member,
notwithstanding his ceasing to be Chief Minister.
Respondent No. 1 challenged this order of discharge in a Criminal
Revision Petition No. 354 of 1982 before the High Court of Bombay.
Respondent No. 1 also sought, and was granted, special-leave to
appeal against Judge Sule's order directly to this court in Criminal
appeal No. 356 of 1983.
This Court also withdrew to itself the,said criminal revision
application No. 354 of 1982 pending before the High Court. All the
three matters-the two appeals (Crl. A. 347 of 1983 and 356 of 1983)
and Criminal Revision Petition so withdrawn to this Court-were heard
by a five Judge bench and disposed of by two separate Judgments dated
16.2.1984.
By Judgment in Crl. appeal No. 356 of 1983 R. S. Nayak v. A. R.
Antulay, [1984] 2 SCR 495 this Court, while setting aside the view of
the Special Judge that sanction of the Legislative Assembly was
necessary, further directed the trial of the case by a Judge of the
Bombay High Court. This Court observed that despite lapse of several
years after commencement of the prosecution the case had "not
moved an inch further", that "expeditious trial is
primarily necessary in the interest of the accused and mandate of
Article 21", and that "therefore Special case No. 24 of
1982 and Special Case No. 3 of 1983 pending in the Court of Special
Judge, Greater Bombay, Shri R.B. Sule" be withdrawn and
transferred to the High Court of Bombay, with a request to the
learned Chief Justice to assign these two cases to a sitting Judge of
the High Court. The Judge so designated was also directed to dispose
of the case expeditiously, preferably "by holding the trial from
day-to-day".
Appellant, in these proceedings, does not assail the correctness
of the view taken by the 5 Judge Bench on the question of the
sanction. Appellant has confined his challenge to what he calls the
constitutional infirmity-and the consequent nullity-of the directions
given as to the transfer of the case to a Judge of the High Court.
In effctuation of the directions dated 16.2.1984 of this Court the
trial went on before three successive learned Judges of the High
Court. It is not necessary here to advert to the reasons for the
change of 95 Judges. It is, however, relevant to mention that when
the matter was before Khatri J. who was the first learned Judge to be
designated by the Chief Justice on the High Court, the appellant
challenged his jurisdiction, on grounds which amounted to a challenge
to the validity of directions of this Court for the transfer of the
case. Khatri J. quite obviously, felt bound to repel the challenge to
his jurisdiction. Learned Judge said appellant's remedy, if any was
to seek a review of the directions dated 16.2.1984 at the hands of
this Court.
Learned Judge also pointed out in his order dated 14.3.1984 what,
according to him, was the true legal position permitting the transfer
of the case from the Special-Judge to be tried by the High Court in
exercise of its extra-ordinary original criminal jurisdiction. In his
order dated 16.3.1984, Khatri J. Observed:
"..... Normally it is the exclusive jurisdiction of a Special
Judge alone to try corruption charges. This position flows from
Section 7 of the 1952 Act. However, this does not mean that under no
circumstances whatever, can trial of such offences be not tried by a
Court of superior jurisdiction than the Special Judge. I have no
hesitation in contemplating at three situations in which a Court of
Superior jurisdiction could try such offence .. " "8. The
third situation can be contemplated under the Code of Criminal
Procedure itself where a Court of superior jurisdiction may have to
try the special cases. Admittedly, there are no special provisions in
the 1952 Act or 1947 Act relating to the transfer of special cases
from one Court to the other. So by virtue of the combined operation
of Sec. 8(3) of the 1952 Act and Section 4(2) of the Code of Criminal
Procedure, the High Court will have jurisdiction under Sec 407 of the
Code in relation to the special cases also. An examination of the
provisions of Section 407 leaves no doubt that where the requisite
conditions are fulfilled, the High Court will be within its
legitimate powers to direct that a special case be transferred to and
tried before itself." Appellant did not seek any review of the
directions at the hands of the Bench which had issued them, but moved
in this Court a Writ Petition No. 708 of 1984 under Article 32 of the
Constitution assailing taken by Khatri J. as to jurisdiction which in
substance meant 96 a challenge to the original order dated 16.2.1984
made by this court. A A division Bench consisting of D.A. Desai and
A.N. Sen, JJ. dismissed the writ petition on 17.4.1984. Sen, J.
speaking for the bench said:
"In my view, the writ petition challenging the validity of
the order and judgment passed by this Court as nullity or otherwise
is incorrect, cannot be entertained. I wish to make it clear that the
dismissal of this writ petition will not prejudice the right of the
petitioner to approach the Court with an appropriate review petition
or to file any other application which he may be entitled in law to
file." (emphasis supplied) [A.R. Antulay v. Union, []984] 3 SCR
482] This order has become final. Even then no review was sought.
It is also relevant to refer here to another pronouncement of a
five Judge bench of this Court dated 5.4.1984 in R.S. Nayak v. A.R.
Antulay, [1984] 3 SCR 412 in Criminal misc. petition No. 1740 of 1984
disposing of a prayer for issue of certain directions as to the
procedure to be followed before the designated Judge of the High
Court. The bench referred to the provisions of law, which according
to it, enabled the transfer of the trial of the criminal case to the
High Court. The view taken by my two learned Brothers, it is needless
to emphasise, has the effect of setting at naught this pronouncement
of the five Judge Bench as well. The five Judge bench considered the
legal foundations of the power to transfer and said:
" ....... To be precise, the learned Judge has to try the
case according to the procedure prescribed for cases instituted
otherwise than on police report by Magistrate. This position is
clearly an unambiguous in view of the fact that this Court while
allowing the appeal was hearing amongst others Transferred case No.
347 of 1983 being the Criminal Revision Application No. 354 of 1983
on the file of the High Court of the Judicature at Bombay against the
order of the learned Special Judge, Shri R.B. Sule discharging the
accused. If the criminal revision application was not withdrawn to
this Court, the High Court while hearing criminal revision
application could have under sec. 407(8), Code of Criminal Procedure,
1973, would have to follow the same procedure which the Court of Sr"
97 Judge would have followed if the case would not have been so
transferred ..
(emphasis supplied) According to the Bench, the High Court's power
under Section 407, Criminal Procedure Code for withdrawing to itself
the case from a Special Judge, who was, for this purpose, a Sessions
Judge, was preserved notwithstanding the exclusivity of the
jurisdiction of the Special Judge and that the Supreme Court was
entitled to and did exercise that, power as the Criminal Review
application pending in the High Court had been withdrawn to the
Supreme Court. The main basis of appellant's case is that all this is
per-incurriam, without jurisdiction and a nullity .
In the meanwhile Mehta J. was nominated by the Chief Justice of
the High Court in place of Khatri. J. In addition to the 17 witnesses
already examined by Khatri J. 41 more witnesses were examined for the
prosecution before Mehta J.
of the 43 charges which the prosecution required to be framed in
the case, Mehta J. declined to frame charges in respect of 22 and
discharged the appellant of those alleged offences. Again respondent
No. 1 came up to this Court which by its order dated 17.4.1986 in
Criminal Appeal No. 658 of 1985, [reported in (1985) 2 SCC 716] set
aside the order of discharge in regard to 22 offences and directed
that charges be drawn in respect of them. This Court also suggested
that another Judge be nominated to take up the case. It is, thus,
that Shah J came to conduct the further trial.
4. I may now turn to the occasion for the present appeal. In the
further proceedings before Shah J. the appellant contended that some
of the alleged co-conspirators, some of whom had already been
examined as prosecution witnesses, and some others proposed to be so
examined should also be included in the array of accused persons.
This prayer, Shah J had no hesitation to reject. It is against this
order dated 24.7.1986 that the present appeal has come up. With this
appeal as an opening, appellant has raised directions of the five
Judges Bench, on 16.2.1984; of the serious violations of his
constitutional- rights; of a hostile discrimination of having to face
a trial before a Judge of the High Court instead of the
Special-Judge, etc. A Division Bench consisting of E.S.
Venkataramiah and Sabyasachi Mukharji JJ. in view of the
seriousness of the grievances aired in the appeal, referred it to be
heard by a bench of seven Judges.
5. The actual decision of Shah J in the appeal declining to pro-
98 ceed against the alleged co-conspirators is in a short compass.
But the appeal itself, has assumed a dimension far beyond the scope
of the order it seeks to be an appeal against. The appeal has become
significant not for its pale determined by the order under appeal;
but more for the collateral questions for which it has served as a
spring board in this Court.
6. Before going into these challenges, it is necessary to say
something on the merits of the order under appeal itself. An accused
person cannot assert any right to a joint trial with his co-accused.
Normally it is the right of the prosecution to decide whom it
prosecutes. It can decline to array a person as a co-accused and,
instead, examine him as a witness for the prosecution. What weight is
to be attached to that evidence, as it may smack of the testimony of
a guilty partner, in crime, is a different matter. Prosecution can
enter Nolle proseque against any accused-person. It can seek to
withdraw a charge against an accused person. These propositions are
too well settled to require any further elaboration. Suffice it to
say that the matter is concluded by the pronouncement of this Court
in Choraria v.
Maharashtra, [1968] 2 SCR 624 where Hidayathullah J referred to
the argument that the accomplice, a certain Ethyl Wong in that case,
had also to be arrayed as an accused and repelled it, observing:
"... Mr. Jethmalani's argument that the Magistrate should
have promptly put her in the dock because of her incriminating
answers overlooks S. 132 (proviso)".
"... The prosecution was not bound to prosecute her, if they
thought that her evidence was necessary to break a smugglers' ring.
Ethyl Wong was prosecuted by S. 132 (proviso) of the Indian Evidence
Act even if she gave evidence incriminating herself. She was a
competent witness although her evidence could only be received with
the caution necessary in all accomplice evidence ... " On this
point, really, appellant cannot be heard to complain. Of the so
called co-conspirators some have been examined already as prosecution
witnesses; some others proposed to be so examined; and two others, it
would appear, had died in the interregnum. The appeal on the point
has no substance and would require to be dismissed. We must now turn
to the larger issue raised in the appeal.
7. While Shri P.P. Rao, learned Senior Counsel for the appel- 99
lant, handling an otherwise delicate and sensitive issue, deployed
all the legal tools that a first rate legal-smithy could design, Shri
Ram Jethmalani, learned Senior Counsel, however, pointed out the
impermissibility both as a matter of law and propriety of a different
bench embarking upon the present exercise which, in effect, meant the
exertion of an appellate and superior jurisdiction over the earlier
five Judge Bench and the precedential problems and anomalies such a
course would create for the future.
8. The contentions raised and urged by Shri P.P. Rao admit of
being summarised and formulated thus:
(a) That Supreme Court has, and can, exercise only such
jurisdiction as is invested in it by the Constitution and the laws;
that even the power under Article 142(1) is not unfettered, but is
confined within the ambit of the jurisdiction otherwise available to
it; that the Supreme Court, like any other court, cannot make any
order that violates the law; that Section 7(1) of the Criminal Law
(Amendment) Act, 1952, (1952 Act) envisages and sets-up a special and
exclusive forum for trial of certain offences; that the direction for
trial of those offences by a Judge of the High Court is wholly
without jurisdiction and void; and that 'Nullity' of the order could
be set up and raised whenever and wherever the order is sought to be
enforced or effectuated;
(b) That in directing a Judge of the High Court to try the case
the Supreme Court virtually sought to create a new jurisdiction and a
new forum not existent in and recognised by law and has, accordingly,
usurped Legislative powers, violating the basic tenets of the
doctrine of separation of powers;
(c) That by being singled out for trial by the High Court,
appellant is exposed to a hostile discrimination, violative of his
fundamental rights under Articles 14 and 21 and if the principles in
State of West Bengal v. Anwar Ali Sarkar, [1952] SCR 284. The law
applicable to Anwar Ali Sarkar should equally apply to Abdul Rahman
Antulay.
(d) That the directions for transfer were issued without affording
an opportunity to the appellant of being hear,, and therefore void as
violative of Rules of Natural Justice.
100 (e) That the transfer of the case to the High Court deprived
appellant of an appeal, as of right, to the High Court. At least one
appeal, as of right is the minimal constitutional safeguard.
(f) That any order including a judicial order, even if it be of
the highest Court, which violates the fundamental rights of a person
is a nullity and can be assailed by a petition under Article 32 of
the Constitution on the principles laid down in Prem Chand Garg v.
Excise Commissioner, UP., [1963] J 1 SCR 885.
(g) That, at all events, the order dated 16.2.1984 in so far as
the impugned direction is concerned, is per incuriam passed ignoring
the express statutory provisions of Section 7(1) of Criminal Law
(Amendment) Act, 1952, and the earlier decision of this Court in
Gurucharan Das Chadha v.
State of Rajasthan, [1966] 2 SCR 678.
(h) That the direction for transfer of the case is a clear and
manifest case of mistake committed by the Court and that when a
person is prejudiced by a mistake of Court it is the duty of the
Court to correct its own mistake: Actus Curiae Nominem Gravabit.
9. Courts are as much human institutions as any other and share
all human susceptibilities to error. Justice Jackson said:
"...... Whenever decisions of one Court are reviewed by
another, a percentage of them are reversed. That reflects a
difference in outlook normally found between personnel comprising
different courts. However, reversal by a higher court is not proof
that justice is thereby better done. There is no doubt that if there
were a super-Supreme Court a substantial proportion of our reversals
of state Courts would also be reversed. We are not final because we
are infallible, but we are infallible only because we are final . "
(See Brown v. Allen, [1944] US 443 at 540.
In Broom v. Cassel, [1972] AC 1027 (at 1131) Lord Diplock said:
101 " ... It is inevitable in a hierarchical system of courts
that there are decisions of the supreme appellate tribunal which do
not attract the unanimous approval of all members of the judiciary.
When I sat in Court of Appeal I sometimes thought the House of Lords
was wrong in over ruling me. Even since that time there have been
occasions, of which the instant appeal itself is one, when, alone or
in company, I have dissented from a decision of the majority of this
House. But the judicial system only works if someone is allowed to
have the last word and if that last word, once spoken, is loyally
accepted." Judge Learned Hand, referred to as one of the most
profound legal minds in the jurisprudence of the English speaking
world, commended the Cromwellian intellectual humility and desired
that these words of Cromwell be written over the portals of every
church, over court house and at every cross road in the nation: "I
beseech ye ....................... think that ye may be mistaken."
As a learned author said, while infallibility is an unrealisable
ideal, "correctness", is often a matter of opinion. An
erroneous decision must be as binding as a correct one. It would be
an unattainable ideal to require the binding effect of a judgment to
defend on its being correct in the absolute, for the test of
correctness would be resort to another Court the infallibility of
which is, again subject to a similar further investigation. No self-
respecting Judge would wish to act if he did so at the risk of being
called a usurper whenever he failed to anticipate and predict what
another Judge thought of his conclusions.
Even infallibility would not protect him he would need the gift of
prophecy-ability to anticipate the fallibilities of others as well. A
proper perception of means and ends of the judicial process, that in
the interest of finality it is inevitable to make some compromise
between its ambitions of ideal justice in absolute terms and its
limitations.
10. Re: Contentions (a) ar.d (b): In the course of arguments we
were treated to a wide ranging, and no less interesting, submissions
on the concept of "jurisdiction" and "nullity" in
relation to judicial orders. Appellant contends that the earlier
bench had no jurisdiction to issue the impugned directions which were
without any visible legal support, that they are 'void' as violative
of the constitutional-rights of the appellant, and, also as violating
the Rules of natural justice. Notwithstanding these appeal to
high-sounding and emotive appellateous; I have serious reservations
about both the permissibility-in these 102 proceedings-of an
examination of the merits of these challenges. Shri Rao's appeal to
the principle of "nullity" and reliance on a collateral
challenge in aid thereof suffers from a basic fallacy as to the very
concept of the jurisdiction of superior courts. In relation to the
powers of superior courts, the familiar distinction between
jurisdictional issues and adjudicatory issues-appropriate to
Tribunals of limited jurisdiction,-has no place. Before a superior
court there is no distinction in the quality of the
decision-making-process respecting jurisdictional questions on the
one hand and adjudicatory issues or issues pertaining to the merits,
on the other.
11. The expression "jurisdiction" or the power to
determine is, it is said, a verbal cast of many colours. In the case
of a Tribunal, an error of law might become not merely an error in
jurisdiction but might partake of the character of an error of
jurisdiction. But, otherwise, jurisdiction is a 'legal shelter'-a
power to bind despite a possible error in the decision. The existence
of jurisdiction does not depend on the correctness of its exercise.
The authority to decide embodies a privilege to bind despite error, a
privilege which is inherent in and indispensable to every judicial
function. The characteristic attribute of a judicial act is that it
binds whether it be right or it be wrong. In Malkarjun v. Narahari,
[1900] 27 I.A. 216 the executing Court had quite wrongly, held that a
particular person represented the estate of the deceased
Judgment-debtor and put the property for sale in execution.
The judicial committee said:
"In doing so, the Court was exercising its jurisdiction. It
made a sad mistake, it is true;
but a court has jurisdiction to decide wrong as well as right. If
it decides wrong, the wronged party can only take the course
prescribed by law for setting matters right and if that course is not
taken the decision, however wrong. cannot be disturbed." In the
course of the arguments there were references to the Anisminic case.
In my view, reliance on the Anisminic principle is wholly misplaced
in this case. That case related to the powers of Tribunals of limited
jurisdiction.
It would be a mistake of first magnitude to import these
inhibitions as to jurisdiction into the concept of the jurisdiction
of superior courts. A finding of a superior court even on a question
of its own jurisdiction, however grossly erroneous it may, otherwise
be, is not a nullity;
nor one which could at all be said to have been reached without
jurisdiction, susceptible to be ignored or to admit of any
collateral-attack. Otherwise, the adjudications of 103 superior
courts would be held-up to ridicule and the remedies generally
arising from and considered concomitants of such classification of
judicial-errors would be so seriously abused and expanded as to make
a mockery of those foundational principles essential to the stability
of administration of justice.
The superior court has jurisdiction to determine its own
jurisdiction and an error in that determination does not make it an
error of jurisdiction. Holdsworth (History of English Law vol. 6 page
239) refers to the theoritical possibility of a judgment of a
superior court being a nullity if it had acted coram-non- judice. But
who will decide that question if the infirmity stems from an act of
the Highest Court in the land? It was observed:
". . . It follows that a superior court has jurisdiction to
determine its own jurisdiction; and that therefore an erroneous
conclusion as to the ambit of its jurisdiction is merely an abuse of
its jurisdiction, and not an act outside its jurisdiction ......
" . . . ln the second place, it is grounded upon the fact
that, while the judges of the superior courts are answerable only to
God and the king, the judges of the inferior courts are answerable to
the superior courts for any excess of jurisdiction . . . " E
"Theoritically the judge of a superior court might be liable if
he acted coram non judice; but there is no legal tribunal to enforce
that liability. Thus both lines of reasoning led to the same
conclusion-the total immunity of the judges of the superior courts."
F Rubinstein in his "Jurisdiction and Illegality" says:
" .... In practice, every act made by a superior court is
always deemed valid (though, possibly, voidable) wherever it is
relied upon.
This exclusion from the rules of validity is indispensable.
Superior courts knew the final arbiters of the validity of acts done
by other bodies; their own decisions must be immune from collateral
attack unless confusion is to reign.
The superior courts decisions lay down the rules of validity but
are not governed by these rules." (See P. 12) 104 A clear
reference to inappositeness and limitations of the Anisminic Rule in
relation to Superior Court so to be found in the opinion of Lord
Diplock in Re Racal Communications Ltd. [ 198() 2 All E.R. 634],
thus:
"There is in my view, however, also an obvious distinction
between jurisdiction conferred by a statute on a court of law of
limited jurisdiction to decide a defined question finally and
conclusively or unappealably, and a similar jurisdiction conferred on
the High Court or a judge of the High Court acting in his judicial
capacity. The High Court is not a court of limited jurisdiction and
its constitutional role includes the interpretation of written laws.
There is thus no room for the inference that Parliament did not
intend the High Court or the judge of the High Court acting in his
judicial capacity to be entitled and, indeed, required to construe
the words of the statute by which the question submitted to his
decision was defined. There is simply no room for error going to his
jurisdiction, or as is conceded by counsel for the respondent, is
there any room for judicial review.
Judicial review is available as a remedy for mistakes of law made
by inferior courts and tribunals only. Mistakes of law made by judges
of the High Court acting in their judicial capacity as such can be
corrected only by means of appeal to an appellate court and if, as in
the instant case, the statute provides that the judge's deci- sion
shall not be appealable, they cannot be corrected at all." [See
page 639 & 640l.
In the same case, Lord Salmon, said:
"The Court of Appeal, however, relied strongly on the
decision of your Lordship's House in Anisminic Ltd. v. Foreign
Compensation Commission, [1969] 1 All ER 209. That decision however
was not, in my respectful view in any way relevant to the present
appeal. It has no applica- tion to any decision or order made at
first instance in the High Court of Justice. It is confined to
decisions made by commissioners, tribunals or inferior courts which
can now be reviewed by the High Court of Justice, just as the
decision of inferior courts used to be reviewed by the old Court of
King's Bench under the prerogative writs. If and when 105 any such
review is made by the High Court. it Can be A appealed to the court
of Appeal and hence, by lave, to your Lordship's House. [See page
6411.
Again in Issac v. Robertson, [1984] 3 All E.R. 140 the Privy
Council reiterated the fallacy of speaking in the language of Nullity
void, etc., in relation to Judgement of superior courts. lt Was
pointed out that it could only be called 'irregular'. Lord Diplock
observed:
"Their L,ordships would, however, take this opportunity to
point out that in relation to orders of a court of unlimited
jurisdiction it is misleading to seek to draw distinctions between
orders that are. " void' in the sense that they can be ignored
with impunity by those persons to whom they are addressed, and orders
that arc "voidable' and may be enforced unless and until they
are set aside. Dicta that refers to the possibility of these being
such a distinction between orders to which the description 'void' and
'void. able' respectively have been applied can be found in the
opinion given by the judicial committee of the Privy Council in Marsh
v. Marsh, [1945] AC 271 at 284 and Maxfoy v. United Africa Co. Ltd.,
[19611] All EWR 1169. [1962] AC 152, but in neither of those appeals
not in any other case to which counsel has been able to refer their
Lordships has any order of a court of unlimited jurisdiction been
held to fall in a category of court orders that can simply be ignored
because they are void ipso facto without there being any need for
proceeding to have them set aside.The cases that are referred to in
these dicta do not support the proposition that there is any category
of orders of a court of unlimited jurisdiction of this kind .. ' F
"The contrasting legal concepts of voidness and voidability form
part of the English Law of contract. They are inapplicable to orders
made by a court of unlimited jurisdiction in the course of
contentious litigation.Such an order is either irregular or regular.
if it is irregular it can be sel aside by the court that made it on
application to High court. if it is regular it can only be set aside
by an appellate court on appeal if there is one to which an appeal
lies. "[See page 143] Superior courts apart, even the ordinary
civil courts of the land 106 have jurisdiction to decide questions of
their own jurisdiction. This Court, in the context of the question
whether the provisions of Bombay Rents, Hotel and Lodging House Rates
Control Act, 1947, was not attracted to the premises in question and
whether, consequently, the exclusion under Section 28 of that Act, of
the jurisdiction of all courts other than the Court of Small Causes
in Greater Bombay did not operate, observed:
"... The crucial point, therefore, in order to determine the
question of the jurisdiction of the City Civil Court to entertain the
suit, is to ascertain whether, in view of Section 4 of the Act, the
Act applies to the premises at all. If it does, the City Civil Court
has no jurisdiction but if it does not then it has such jurisdiction.
The question at once arises as to who is to decide this point in
controversy. It is well settled that a Civil Court has inherent power
to decide the question of its own jurisdiction, although, as a result
of its enquiry, it may turn out that it has no jurisdiction over the
suit. Accordingly, we think, in agreement with High Court that this
preliminary objection is not well founded in principle or on
authority and should be rejec- ted." [See AIR 1953 (SC) 16 at
19. Bhatia Co- operative Housing Society Ltd. v. D. C. Patel] It
would, in my opinion, be wholly erroneous to characterise the
directions issued by the five Judge bench as a nullity, amenable to
be ignored or so. declared in a collateral attack.
12. A judgment, inter-parties, is final and concludes the parties.
In Re Hastings (No. 3) [ 1959] l All ER 698, the question arose
whether despite the refusal of a writ of Habeas Corpus by a
Divisional Court of the Queen's bench, the petitioner had, yet, a
right to apply for the writ in the Chancery Division. Harman J.
called the supposed right an illusion:
"Counsel for the applicant, for whose argument I for one am
much indebted, said that the clou of his case as this, that there
still was this right: to go from Judge to Judge, and that if that
were not so the whole structure would come to the ground ...."
"I think that the Judgment of the Queen's bench Divisional Court
did make it clear that this supposed right 107 was an illusion. If
that be right, the rest follows. No body doubts that there was a
right to go from court to court, as my Lord has already explained.
There are no different courts now to go to. The courts that used to
sit in banc have been swept away and their places taken by Divisional
Courts, which are entirely the creatures of statute and rule.
Applications for a writ of habeas corpus are assigned by the rule to
Divisional Courts of the Queen's Bench Division, and that is the only
place to which a applicant may go ...... " [See page 701] In
Daryao v. State of U. P., [1962] 1 SCR 574 it was held:
"It is in the interest of the public at large that a finality
should attach to the binding decisions pronounced by courts of
competent jurisdiction, and it is also in the public interest that
individuals should- not be vexed twice over with the same kind of
litigation. If these two principles form the foundation of the
general rule of res-judicata they cannot be treated as irrelevant or
inadmissible even in dealing with fundamental rights in petitions
filed under Article 32". [See page 583].
In Trilok Chand v. H. B. Munshi, [1969] 2 SCR 824 Bachawat J.
recognised the same limitations even in matter pertaining to the
conferment of fundamental rights.
"... The right to move this Court for enforcement of
fundamental rights is guaranteed by Article 32. The writ under
Article 32 issues as a matter of course if a breach of a fundamental
right is established. But this does not mean that in giving relief
under Article 32 the Court must ignore and trample under foot all
laws of procedure, evidence. limitation, res judicata and the like
....
".... the object of the statutes of limitation was to give
effect to the maxim 'interest reipublicate ut sit finislitium' (Cop
Litt 303)-the interest of the State requires that there should be a
limit to litigation. The rule of res judicata is founded upon the
same rule of public policy ...... " [See page 842 and 843] It is
to be recalled that an earlier petition, W.P. No.
7()8 of 1984 108 under Article 32 moved before this Court had been
dismissed, reserving leave to the appellant to seek review.
The words of Venkataramiah J in Sheonandan Paswan v.
State of Bihar, [1987]1 SCC 288 at 343 are apt and are attracted
to the present case:
"The reversal of the earlier judgment of this court by this
process strikes at the finality of judgments of this Court and would
amount to the abuse of the power of review vested in this Court,
particularly in a criminal case. It may be noted that no other court
in the country has been given the power of review in criminal cases.
I am of the view that the majority judgment of Baharul Islam and R.B.
Misra, JJ. should remain undisturbed.
This case cannot be converted into an appeal against the earlier
decision of this Court. " (Emphasis supplied)
13. The exclusiveness of jurisdiction of the special judge under
Section 7(1) of 1952 Act, in turn, depends on the construction to be
placed on the relevant statutory- provision. If on such a
construction, however erroneous it may be, the court holds that the
operation of Sec. 407, Cr.P.C. is not excluded, that interpretation
will denude the plenitude of the exclusivity claimed for the forum.
To say that the court usurped legislative powers and created a new
jurisdiction and a new forum ignores the basic concept of functioning
of courts. The power to interpret laws is the domain and function of
courts. Even in regard to the country's fundamental-law as a Chief
Justice of the Supreme Court of the United States said: "but the
Constitution is what the judges say it is". In Thomas v.
Collins, 323 (1945) US 516 it was said:
"The case confronts us again with the duty our system places
on this Court to say where the individual's freedom ends and the
State's power begins. Choice on that border, now as always is,
delicate ...." I am afraid appellant does himself no service by
resting his case on these high conceptual fundamentals.
14. The pronouncements of every Division-Bench of this Court are
pronouncements of the Court itself. A larger bench, merely on the
strength of its numbers, cannot un-do the finalily of the decisions
of 109 Other division benches. If the decision suffers from an error
the only A way to correct it, is to go in Review under Article 137
read with order 40 Rule I framed under Article 145 before "as
far as is practicable" the same judges. This is not a matter
merely of some dispensable procedural 'form' but the requirement of
substance. The reported decisions on the review power under the
(Civil Procedure Code when it had a similar provision for the same
judges hearing the matter demonstrate the high purpose sought to be
served thereby.
15. In regard to the concept of Collateral Attack on Judicial
Proceedings it is instructive to recall some observations of Van
Fleet on the limitations and their desirability-on such actions.
"one who does not understand the theory of a science, who has
no clear conception of its principles, cannot apply it with certainty
to the problems; it is adapted to solve. In order to understand the
principles which govern in determining the validity of RIGHTS AND
TITLES depending upon the proceedings of judicial tribunals,
generally called the doctrine of COLLATERAL ATTACK ON JUDG-MENTS, it
is necessary to have a clear conception of the THEORY OF JUDICIAL
PROCEEDINGS .....
" .. And as no one would think of holding a judgmenf of the
court of last resort void if its jurisdiction were debatable or even
colorable, the same rule must be applied to the judgments of all
judicial tribunals. This is the true theory of judicial action when
viewed collaterally. If any jurisdictional question is debatable or
colorable, the tribunal must decide it; and an erroneous conclusion
can ony be corrected by some proceeding provided by law for so doing,
com- monly called a Direct Attack. It is only where it can be shown
lawfully, that some matter or thing essential to jurisdiction is
wanting, that the proceeding is void, collaterally.
It is the duty of the courts to set their faces against all
collateral assaults on judicial proceedings for two reasons, namely:
First. Not one case in a hundred has any merits in it "...
Second. Thc second reason why the courts should reduce the chances
for a successful collateral attack to the H 110 lowest minimum is,
that they bring the courts themselves into disrepute. Many people
look upon the courts as placed where jugglery and smartness are
substituted for justice "...... such things tend to weaken law
and order and to cause men to settle their rights by violence. For
these reasons, when the judgment rendered did not exceed the possible
power of the court7 and the notice was sufficient to put the
defendant upon inquiry, a court should hesitate long before holding
the proceedings void collaterally (emphasis supplied)
16. But in certain cases, motions to set aside Judgments are
permitted where,,for instance a judgment was rendered in ignorance of
the fact that a necessary party had not been served at all, and was
wrongly shown as served or in ignorance of the fact that a necessaryD
party had died, and the estate was not represented. Again, a judgment
obtained by fraud could be subject to an action for setting it aside.
Where such a judgment obtained by fraud tended to prejudice a non
party, as in the case of judgments in-rem such as for divorce, or
jactita tion or probate etc. everl a person, not eo-nomine a party to
the proceedings, could seek a setting-aside of the judgment.
Where a party nas naa no nonce ana a aecree ls maae agamst him, he
can approach the court for setting-aside the decision. In such a case
the party is said to become entitled to relief ex-debito justitiae,
on proof of the fact that there was no service. This is a class of
cases where there is no trial at all and the judgment is for default.
D.N. Gordan, in his "Actions to set aside judgments."
(1961 77 Law Quarterly Review 356) says:
"The more familiar applications to set aside judgments are
those made on motion and otherwise summarily. But there are judgments
obtained by default, which do not represent a judicial determination.
In general, Judgments rendered after a trial are conclusive between
the parties unless and until reversed on appeal. Certainly in general
judgments of superior courts cannot be overturned or questioned bet
ween the parties in collateral actions. Yet there is a type of
collateral action known as an action of review, by which even a
superior court's judgment can be questioned, even between the
parties, and set aside 111 Cases of such frank failure of natural
justice are obvious cases where relief is granted as of right. Where
a person is not actually served but is held erroneously, to have been
served, he can agitate that grievance only in that forum or in any
further proceeding therefrom. In Issac's case [ 1984] 3 All ER 140
privy council referred to:
" ....... , .. a category of orders of such a court which a
person affected by the order is entitled to apply to have set aside
ex-debito justitiae in exercise of the inherent jurisdiction of the
court without needing to have recourse to the Rules that deal
expressly with proceedings to setaside orders for irregularity and
give to the judge a discretion as to the order he will make".
In the present case by the order dated 5.4.1984 a five judge bench
set-out, what according to it, was, the legal basis and source of
jurisdiction to order transfer. On 17.4.1984 appellant's writ
petition challenging that transfer as a nullity was dismissed. These
orders are not which appellant is entitled to have set-aside
ex-debito justitiae by another bench. Reliance on the observations in
Issac's case is wholly misplaced.
The decision of the Privy Council in Rajunder Narain Rae v. Bijai
Govind Singh, [2 NIA 181] illustrates the point. Referring to the law
on the matter, Lord Brougham said: E "It is unquestionably the
strict rule, and ought to be distinctly understood as such, that no
cause in this Court can be re-heard, and that an order once made,
that is, a report submitted to His Majesty and adopted, by being made
an order in Council, is final, and cannot be altered. The same is the
case of the judgments of the House of Lords, that is, of the Court of
Parliament, or of the King in Parliament as it is sometimes
expressed, the only other supreme tribunal in this country. Whatever,
therefore, has been really determined in these Courts must stand,
there being no power of re-hearing for purpose of changing the
judgment pronounced; nevertheless, if by misprision in embodying the
judgments, errors have been introduced, these Courts possess, by
common law, the same power which the Courts of Record and Statute
have of rectifying the mistakes which have crept in. The Courts of
Equity may correct the Decrees made while they are in minutes; when
they are 112 complete they can only vary them by re-hearing;
and when they are signed and enrolled they can no longer be
reheard, but they must be altered. if at all, by Appeal. The Courts
of Law, after the term in which the judgments are given can only
alter them so as to correct misprisions, a power given by the
Statutes of Amendment. The House of Lords exercises a similar power
of rectifying mistakes made in drawing up its own judgments, and this
Court must possess the same authority. The Lords have, however, gone
a step further, and have corrected mistakes introduced through
inadvertence in the details of judgments; or have supplied manifest
defects, in order to enable the Decrees to be enforced, or have added
explanatory matter, or have reconciled inconsistencies. But with the
exception of one case in 1669. Of doubtful authority, here, and
another in Parliament of still less weight in 1642 (which was an
Appeal from the Privy Council to Parliament, and at a time when the
Government was in an unsettled state), no instance, it is believed,
can be produced of a rehearing upon the whole cause., and an entire
alteration of the judgment once pronounced.. .."
17. The second class of cases where a judgment is assailed for
fraud, is illustrated by the Duchess of Kingston s case ( 1776 2 Sm.
L.C. 644 13th Ed.). ln that case, the Duchess was prosecuted for
bigamy on the allegation that she entered into marriage while her
marriage to another person, a certain Hervey, was still subsisting.
In her defence, the Duchess relied upon a decree of jactitation
from an ecclesiastical court which purported to show that she had
never been married to Hervey. The prosecution sought to get over this
on the allegation the decree was obtained in a sham and collusive
proceeding. The House of lords held the facts established before
Court rendered the decree nugatory and was incapable of supplying
that particular defence. De Grey CJ said that the collusive decree
was not be impeached from within; yet like all other acts of the
highest authority, it is impeachable from without, although it is not
permitted to show that the court was mistaken, it may be shown that
they were misled. Fraud which affected the judgment with described by
the learned Chief Justice as an "extrinsic collateral act. which
vitiates the most solemn proceedings of courts of justice..
'
18. The argument of nullity is too tall and has no place in this
case. The earlier direction proceeded on a construction of Section
7(1) 113 Of the Act and Section 407 Cr.P.C. We do not sit here in
appeal over what the five Judge bench said and proclaim how wrong
they were. We are, simply, not entitled to embark, at a later stage,
upon an investigation of the correctness of the very same decision.
The same bench can, of course, reconsider the matter under Article
137.
However, even to the extent the argument goes that the High Court
under Section 407 Cr.P.C. could not withdraw to itself a trial from
Special-Judge under the 1952 Act, the view of the earlier bench is a
possible view. The submissions of Shri Ram Jethmalani that the
exclusivity of the jurisdiction claimed for the special forum under
the 1952 Act is in relation to Courts which would, otherwise, be
Courts of competing or co-ordinate jurisdictions and that such
exclusivity does not effect the superior jurisdiction of the High
Court to withdraw, in appropriate situations, the case to itself in
exercise of its extraordinary original criminal jurisdiction; that
canons of Statutory- construction, appropriate to the situation,
require that the exclusion of jurisdiction implied in the 1952
amending Act should not be pushed beyond the purpose sought to be
served by the amending law; and that the law while creating the
special jurisdiction did not seek to exclude the extra- ordinary
jurisdiction of the High Court are not without force. The argument,
relying upon Kavasji Pestonji Dalal v.
Rustor, Sorabji Jamadar & Anr., AIR 1949 Bombay 42 that while
the ordinary competing jurisdictions of other Courts were excluded,
the extraordinary jurisdiction of the High Court was neither intended
to be. nor, in fact, affected, is a matter which would also bear
serious examination. In Sir Francis Bennion's Statutory
Interpretation, there are passages at page 433 which referring to
presumption against implied repeal, suggest that in view of the
difficulties in determining whether an implication of repeal was
intended in a particular situation it would be a reasonable
presumption that where the legislature desired a repeal, it would
have made it plain by express words. In Sutherland Statutory
construction the following passages occur:
"Prior statutes relating to the same subject matter are to be
compared with the new provisions;
and if possible by reasonable construction, both are to be so
construed that effect is given to every provision of each. Statutes
in pari materia although in apparent conflict, are so far as
reasonably possible constructed to be in harmony with each other."
(Emphasis supplied) 114 "When the legislature enacts a
provision, it has before it a 11 the other provisions relating to the
same subject matter which it enacts at that time, whether in the same
statute or in a separate Act. It is evident that it has in mind the
provisions of a prior Act to which it refers, whether it phrases the
later Act as amendment or an independent Act. Experience indicates
that a legislature does not deliberately enact inconsistent
provisions when it is rec ogzant of them both, without expressly
recognizing the inconsistency. (emphasis supplied) Reliance by Shri
Ram Jethmalani on these principles to support his submission that the
power under Section 407 was unaffected and that the decision in State
of Rajasthan v.
Gurucharan Das Chadda (supra), can not also be taken to have
concluded the matter, is not un-arguable. I would, therefore, hold
contentions (a) and (b) against appellant.
19 Re: contention (c):
The fundamental right under Article 14, by all reckoning, has a
very high place in constitutional scale of values. Before a person is
deprived of his personal liberty, not only that the Procedure
established by law must strictly be complied with and not departed
from to the disadvantage or detriment of the person but also that the
procedure for such deprivation of personal liberty must be
reasonable, fair and just. Article 21 imposes limitations upon the
procedure and requires it to conform to such standards of
reasonableness, fairness and justness as the Court acting as sentinel
of fundamental rights would in the context, consider necessary and
requisite. The court will be the arbiter of the question whether the
procedure is reasonable, fair and just.
If the operation of Section 407, Cr.P.C. is not impliedly excluded
and therefore, enables the withdrawal of a case by the High Court to
itself for trial as, indeed, has been held by the earlier bench, the
argument based on Article 14 would really amount to a challenge to
the very vires of Section 407. All accused persons cannot claim to be
tried by the same Judge. The discriminations-inherent in the choice
of one of the concurrent jurisdictions-are not brought about by an
inanimate statutory-rule or by executive fiat. The withdrawal of a
case under Section 407 is made by a conscious judicial act and is the
result of judicial discernment. If the law permits the withdrawal of
the trial to 115 the High Court from a Special Judge, such a law
enabling withdrawal would not, prima facie, be bad as violation of
Article 14. The five Judge bench in the earlier case has held that
such a transfer is permissible under law. The appeal to the principle
in Anwar Ali Sarkar's case (supra), in such a context would be
somewhat out of place.
If the law did not permit such a transfer then the trial before a
forum which is not according to law violates the rights of the
accused person. In the earlier decision the transfer has been held to
be permissible. That decision has assumed finality.
If appellant says that he is singled out for a hostile treatment
on the ground alone that he is exposed to a trial before a Judge of
the . High Court then the submission has a touch of irony. Indeed
that a trial by a Judge of the High Court makes for added
re-assurance of justice, has been recognised in a number of judicial
pronouncement. The argument that a Judge of the High Court may not
necessarily possess the statutory-qualifications requisite for being
appointed as a Special Judge appears to be specious. A judge of the
High Court hears appeals arising from the decisions of the Special
Judge, and exercises a jurisdiction which includes powers
co-extensive with that of the trial court.
There is, thus, no substance in contention (c).
21. Re: Contention(d):
This grievance is not substantiated on facts; nor, having regard
to the subsequent course of events permissible to be raised at this
stage. These directions, it is not disputed, were issued on 16.2.1984
in the open Court in the presence of appellant's learned counsel at
the time of pronouncement of the judgment. Learned counsel had the
right and the opportunity of making an appropriate submission to the
court as to the permissibility or otherwise of the transfer. Even if
the submissions of Shri Ram Jethmalani that in a revision application
Section 403 of the Criminal Procedure Code does not envisage a right
of being heard and that transfer of a case to be tried by the Judge
of the High Court cannot, in the estimate of any right thinking
person, be said to be detrimental to the accused person is not
accepted, however, applicant, by his own conduct, has disentitled
himself to make grievance of it in these proceedings. It cannot be
said that after the directions were pronounced and before the order
was signed there was no opportunity for the appellant's learned
counsel to make any submissions in regard to the alleged illegality
or impropriety of the directions. Appellant did 116 not utilise the
opportunity. That apart, even after being told by two A judicial
orders that appellant, if aggrieved, may seek a review he did not do
so. Even the grounds urged in the many subsequent proceedings
appellant took to get rid of the effect of the direction do not
appear to include the grievance that he had no opportunity of being
heard. Where, as here, a party having had an opportunity to raise a
grievance in the earlier proceedings does not do so and makes it a
technicality later he cannot be heard to complain. Even in respect of
so important jurisdiction as Habeas Corpus, the observation of Gibson
J in Re. Tarling l 19791 1 All E.R. 981 at 987 are significant:
"Firstly, it is clear to the Court that an applicant for
habeas corpus is required to put forward on his initial application
then whole of the case which is then fairly available to him he is
not free to advance an application on one ground, and to keep back a
separate ground of application as a basis for a second or renewed
application to the Court.
The true doctrine of estoppel known as res judicata does not apply
to the decision of this Court on an application for habeas corpus we
refer to the words of Lord Parket CJ delivering the Judgment of the
Court in Re. Hastings (No. 2).
There is, however, a wider sense in which the doctrine of res
judicata may be applicable, whereby it becomes an abuse of process to
raise in subsequent proceedings matters which could, and therefore,
should have been litigated in earlier proceedings .. " This
statement of the law by Gibson J was approved by Sir John Donaldson
MR in the Court of appeal in Ali v.
Secretary of State for the Home Department, [1984] 1 All E.R. 1009
at 1019.
Rules of natural justice embodies fairness in-action.
By all standards, they are great assurances of Justice and
fairness. But they should not be pushed to a breaking point.
It is not inappropriate to recall what Lord Denning said in R. v.
Secretary of State for the Home Department ex-parte Mughal, [1973] 3
All ER 796:
" ... The rules of natural justice must not be stretched too
far. Only too often the people who have done wrong seek to invoke the
rules of natural justice so as to avoid the consequences .
" Contention (d) is insubstantial.
117
22. Re. Contention (e): A The contention that the transfer of the
case to the High Court involves the elimination of the appellant's
right of appeal to the High Court which he would otherwise have and
that the appeal under Article 136 of the Constitution is not as of
right may not be substantial in view of Section 374, Cr. P.C. which
provides such an appeal as of right, when the trial is held by the
High Court. There is no substance in contention (e) either.
23. Re.Contention (f):
The argument is that the earlier order of the five Judge bench in
so far as it violates the fundamental rights of the appellant under
Article 14 and 21 must be held to be void and amenable to challenge
under Article 32 in this very Court and that the decision of this
Court in Premchand Garg's case (supra) supports such a position. As
rightly pointed out by Ranganath Misra, J. Premchand Garg's case
needs to be understood in the light of the observations made in
Naresh Sridhar Mirajkar & Ors. v. State of Maharashtra &
Anr., [ 1966] 3 SCC 744. In Mirajkar's case, Gajendragadkar, CJ., who
had himself delivered the opinion in Garg's case, noticed the
contention based on Garg's case thus:
"ln support of his argument that a judicial decision can be
corrected by this Court in exercise of its writ jurisdiction under
Article 32(2), Mr. Setalvad has relied upon another decision of this
Court in Prem Chand Garg v.
Excise Commissioner, UP, Allahabad (supra) .. " Learned Chief
Justice referring to the scope of the matter that fell for
consideration in Garg's case stated:
".... It would thus be seen that the main controversy in the
case of Prem Chand Garg centered round the question as to whether
Article 145 conferred powers on this Court to make rules, though they
may be inconsistent with the constitutional provisions prescribed by
part III.
Once it as held that the powers under Article 142 had to be read
subject not only to the fundamental rights, but to other binding
statutory provisions, it became clear that the ruler which authorised
the making of the impugned order was invalid. It was in that context
that the validity of the 118 order had to be incidentally examined.
The petition was A made not to challenge the order as such, but to
challenge the validity of the rule under which the order was made
Repelling the contention learned Chief Justice said:
"... It is difficult to see now this decision can be pressed
into service by Mr. Setalvad in support of the argument that a
judicial order passed by this Court was held to be subject to the
writ jurisdiction of this Court itself .. " A passage from
Kadish & Kadish "Discretion to Disobey", 1973 Edn. may
usefully by recalled:
"on one view, it would appear that the right of a citizen to
defy illegitimate judicial authority should be the same as his right
to defy illegitimate legislative authority. After all, if a rule that
transgresses the Constitution or is otherwise invalid is no law at
all and never was one, it should hardly matter whether a court or a
legislature made the rule. Yet the prevailing approach of the courts
has been to treat invalid court orders quite differently from invalid
statutes. The long established principle of the old equity courts was
that an erroneously issued injunction must be obeyed until the error
was judicially determined. Only where the issuing court could be said
to have lacked jurisdiction in the sense of authority to adjudicate
the cause and to reach the parties through its mandate were
disobedient contemnors permitted to raise the invalidity of the order
as a full defence. By and large, American courts have declined to
treat the unconstitutionality of a court order as a jurisdictional
defect within this traditional equity principle, and in notable
instances they have qualified that principle even where the defect
was jurisdiction in the accepted sense." (See 111).
Indeed Ranganath Misra, J. in his opinion rejected the contention
of the appellant in these terms:
"In view of this decision in Mirajkar's case, supra, it must
be taken as concluded that judicial proceedings in this Court are not
subject to the writ jurisdiction thereof." 119 There is no
substance in contention (f) either. A 24. Contention (g):
It is asserted that the impugned directions issued by the five
Judge Bench was per-incuriam as it ignored the Statute and the
earlier Chadda's case. B But the point is that the circumstance that
a decision is reached per-incuriam, merely serves to denude the
decision of its precedent value. Such a decision would not be binding
as a judicial precedent. A co-ordinate bench can disagree with it and
decline to follow it. A larger bench can over rule such decision.
When a previous decision is so overruled it does not happen-nor has
the overruling bench any jurisdiction so to do-that the finality of
the operative order, inter-parties, in the previous decision is
overturned. In this context the word 'decision' means only the reason
for the previous order and not the operative- order in the previous
decision, binding inter-parties. Even if a previous decision is
overruled by a larger-bench, the efficacy and binding nature, of the
adjudication expressed in the operative order remains undisturbed
inter-parties.
Even if the earlier decision of the five Judge bench is per-
incuriam the operative part of the order cannot be interfered within
the manner now sought to be done. That apart the five Judge bench
gave its reason. The reason, in our opinion, may or may not be
sufficient. There is advertence to Section 7(1) of the 1952 Act and
to the exclusive jurisdiction created thereunder. There is also
reference to Section 407 of the Criminal Procedure Code. Can such a
decision be characterised as one reached per- incurium? Indeed,
Ranganath Misra, J. says this on the point:
"Overruling when made by a larger bench of an earlier
decision of a smaller one is intended to take away the precedent
value of the decision without affecting the binding effect of the
decision in the particular case. Antulay, therefore, is not entitled
to take advantage of the matter being before a larger bench .. "
I respectfully agree. Point (g) is bereft of substance and merits.
25. Re: Contention (h):
The argument is that the appellant has been prejudiced by a
mistake of the Court and it is not only within power but a duty as
well, H 120 of the Court to correct its own mistake, so that no party
is prejudiced by the Court's mistake: Actus Curiae Neminem Gravabid.
I am afraid this maxim has no application to conscious conclusions
reached in a judicial decision. The maxim is not a'source of a
general power to reopen and rehear adjudication which have otherwise
assumed finality. The maxim operates in a different and narrow area.
The best illustration of the operation of the maxim is provided by
the application of the rule of nunc-pro-tunc. For instance, if owing
to the delay in what the court should, otherwise, have done earlier
but did later, a party suffers owing to events occurring in the
interrugnum, the Court has the power to remedy it. The area of
operation of the maxim is.
generally, procedural. Errors in judicial findings, either of
facts or law or operative decisions consciously arrived at as a part
of the judicial-exercise cannot be interfered with by resort to his
maxim. There is no substance in contention (h).
26. lt is true that the highest court in the land should no., by
technicalities of procedure forge fetters on its own feet and disable
itself in cases of serious miscarriages of justice. It is said that
"Life of law is not logic; it has been experience." But it
is equally true as Cordozo said: But Holmes did not tell us that
logic is to be ignored when experience is silent. Those who do not
put the teachings of experience and the lessons of logic out of
consideration would tell what inspires confidence in the judiciary
and what does not. Judicial vacillations fall in the latter category
and undermine respect of the judiciary and judicial institutions,
denuding thereby respect for law and the confidence in the
even-handedness in the administrating of justice by Courts. It would
be gross injustice, says an author, (Miller-'data of jurisprudence')
to decide alternate cases on opposite principles. The power to alter
a decision by review must be expressly conferred or necessarily
inferred. The power of review-and the limitations on the power-under
Article 137 are implicit recognitions of what would, otherwise, be
final and irrevocable. No appeal could be made to the doctrine of
inherent powers of the Court either. Inherent powers do not confer,
or constitute a source of, jurisdiction. They are to be exercised in
aid of a jurisdiction that is already invested. The remedy of the
appellant, if any, is recourse to Article 137; no where else. This
appears to me both good sense and good law.
The appeal is dismissed.
RANGANATHAN, J. 1. I have had the benefit of perusing the 121
drafts of the judgments proposed by my learned brothers Sabyasachi
Mukharji, Ranganath Misra and Venkatachaliah, JJ.
On the question whether the direction given by this Court in its
judgment dated 16.2.1984 should be recalled, I find myself in
agreement with the conclusion of Venkatachaliah, J. (though for
slightly different reasons) in preference to the conclusion reached
by Sabyasachi Mukharji, J. and Ranganath Misra, J. I would,
therefore, like to set out my views separately on this issue.
THE ISSUES
1. This is an appeal by special leave from a judgment of Shah J.,
of the Bombay High Court. The appellant is being tried for offences
under Ss. 120B, 420, 161 and 165 of the Indian Penal Code (I.P.C.)
read with S. 5(1)(d) and 5(2) of the Prevention of Corruption Act,
1947. The proceedings against the appellant were started in the Court
of Sri Bhutta, a Special Judge, appointed under S. 6(1) of the
Criminal Law (Amendment) Act, 1952 (hereinafter referred to as 'the
1952 Act'). The proceedings have had a chequered career as narrated
in the judgment of my learned brother Sabyasachi Mukharji, J. Various
issues have come up for consideration of this Court at the earlier
stages of the proceedings and the judgments of this Court have been
reported In 1982 2 S.C.C. 463, 1984 2 SCR 495, 1984 2 SCR 914, 1984 3
SCR 412, 1984 3 SCR 482 and 1986 2 S.C.C. 716.
At present the appellant is being tried by a learned Judge of the
Bombay High Court nominated by the Chief Justice of the Bombay High
Court in pursuance of the direction given by this Court in its order
dated 16.2.1984 (reported in 1984 2 SCR 495). By the order presently
under appeal, the learned Judge (s) framed as many as 79 charges
against the appellant and (b) rejected the prayer of the appellant
that certain persons, named as co-conspirators of the appellant in
the complaint on the basis of which the prosecution has been launched
should be arrayed as co-accused along with him. But the principal
contention urged on behalf of the appellant before us centres not
round the merits of the order under appeal on the above two issues
but round what the counsel for the appellant has described as a
fundamental and far- reaching objection to the very validity of his
trial before the learned Judge. As already stated, the trial is being
conducted by the learned Judge pursuant to the direction of this
Court dated 16.2.1984. The contention of the learned counsel is that
the said direction is per incuriam, illegal, invalid, contrary to the
principles of natural justice and violative of the fundamental rights
of the petitioner. This naturally raises two important issues for our
consideration:
A. Whether the said direction is inoperative, invalid or illegal,
as alleged; and 122 B. Whether, if it is, this Court can and should
recall, withdraw, revoke or set aside the same in the present
proceedings.
Since the issues involve a review or reconsideration of a
direction given by a Bench of five judges of this Court, this
seven-judge Bench has been constituted to hear the appeal.
2. It is not easy to say which of the two issues raised should be
touched upon first as, whichever one is taken up first, the second
will not arise for consideration unless the first is answered in the
affirmative. However, as the correctness of the direction issued is
impugned by the petitioner, as there is no detailed discussion in the
earlier order on the points raised by the petitioner, and as
Sabyasachi Mukharji, J. has expressed an opinion on these contentions
with parts of which I am unable to agree, it will be perhaps more
convenient to have a look at the first issue as if it were coming up
for consideration for the first time before us and then, depending
upon the answer to it, consider the second issue as to whether this
Court has any jurisdiction to recall or revoke the earlier order. The
issues will, therefore, be discussed in this order.
A. ARE THE DIRECTIONS ON 16.2.1984 PROPER, VALID AND LEGAL?
3. For the appellant, it is contended that the direction given in
the last para of the order of the Bench of five Judges dated
16.2.1984 (extracted in the judgment of Sabyasachi Mukharji, J.) is
vitiated by illegality, irregularity and lack of jurisdiction on the
following grounds:
(i) Conferment of jurisdiction on courts is the function of the
legislature. It was not competent for this Court to confer
jurisdiction on a learned Judge of the High Court to try the
appellant, as, under the 1952 Act, an offence of the type in question
can be tried only by a special Judge appointed thereunder. This has
been overlooked while issuing the direction which is, therefore, per
incuriam.
(ii) The direction above-mentioned (a) relates to an issue which
was not before the Court (b) on which no arguments were addressed and
(c) in regard to which the appellant had no opportunity to make his
submissions.
It was nobody's case before the above Bench that the trial of the
accused should no 123 longer be conducted by a Special Judge but
should be before a High Court Judge.
(iii) In issuing the impugned direction, the Bench violated the
principles of natural justice, as mentioned above. It also overlooked
that, as a result thereof, the petitioner (a) was discriminated
against by being put to trial before a different forum as compared to
other public servants accused of similar offences and (b) lost
valuable rights of revision and first appeal to the High Court which
he would have had, if tried in the normal course.
The direction was thus also violative of natural justice as well
as the fundamental rights of the petitioner under Article 14 and 21
of the Constitution.
Primary Jurisdiction
4. There can be-and, indeed, counsel for the respondent had-no
quarrel with the initial premise of the learned counsel for the
appellant that the conferment of jurisdiction on courts is a matter
for the legislature.
Entry 77 of List I, entry 3 of List II and entries 1, 2, 11A and
46 of List III of the Seventh Schedule of the Constitution set out
the respective powers of parliament and the State Legislatures in
that regard. It is common ground that the jurisdiction to try
offences of the type with which are concerned here is vested by the
1952 Act in Special Judges appointed by the respective State
Governments. The first question that has been agitated before us is
whether this Court was right in transferring the case for trial from
the Court of a Special Judge, to a Judge nominated by the Chief
Justice of Bombay.
High Court's Power of Transfer
5. The power of the Supreme Court to transfer cases can be traced,
in criminal matters, either to Art. 139A of the Constitution or
Section 406 of the Code of Criminal Procedure ("Cr. P.C.), 1973.
Here, again, it is common ground that neither of these provisions
cover the present case. Sri Jethmalani, learned counsel for the
respondent, seeks to support the order of transfer by reference to
Section 407 (not Section 406) of the Code and cl. 29 of the Letters
Patent of the Bombay High Court. Section 407 reads thus:
(1) Whenever it is made to appear to the High Court- 124 (a) that
a fair and impartial inquiry or trial cannot be had in any Criminal
Court subordinate thereto, or (b) that some question of law of
unusual difficulty is likely to arise, or (c) that an order under
this section is required by any provision of this Code, or will tend
to the general convenience of the parties or witnesses, or is
expedient for the ends of justice, it may order- (i) that any offence
be inquired into or tried by any Court not qualified under Section
177 to 185 (both inclusive), but in other respects competent to
inquire into or try such offences;
(ii) that any particular case or appeal, or class of cases or
appeals, be transferred from a Criminal Court subordinate to its
authority to any other such Criminal Court of equal or superior
jurisdiction;
(iii) that any particular case be committed for trial to a Court
of Session; or (iv) that any particular case or appeal be transferred
to and tried before itself.
(2) the High Court may act either on the report of the lower court
or on the application of a party interested or on its own initiative:
XXX XXX XXX XXX XXX XXX XXX XXX XXX (9) Nothing in this section
shall be deemed to affect any order of Government under Section 197."
And cl. 29 of the Letters Patent of the Bombay High Court runs thus:
"And we do further ordain that the said High Court shall have
power to direct the transfer of any criminal case or 125 appeal from
any Court to any other Court of appeal or superior jurisdiction, and
also to direct the preliminary investigation of trial of any criminal
case by any officer of Court otherwise competent to investigate or
try it though such case belongs, in ordinary course, to the
jurisdiction of some other officer, of Court." The argument is
that this power of transfer vested in the High Court can well be
exercised by the Supreme Court while dealing with an appeal from the
High Court in the case.
6. For the appellant, it is contended that the power of transfer
under section 407 cannot be invoked to transfer a case from a Special
Judge appointed under the 1952 Act to the High Court. Learned counsel
for the appellant contends that the language of section 7(1) of the
Act is mandatory;
it directs that offences specified in the Act can be tried only by
persons appointed, under S. 6(2) of the Act, by the State Government,
to be special judges, No other Judge, it is said, has jurisdiction to
try such a case, even if he is a Judge of the High Court. In this
context, it is pointed out that a person, to be appointed as a
special Judge, under section 6(2) of the 1952 Act, should be one who
is, or has been, a Sessions Judge (which expression in this context
includes an Additional Sessions Judge and/or an Assistant Sessions
Judge). All High Court Judges may not have been Sessions Judges
earlier and, it is common ground, Shah, J.
who has been nominated by the Chief Justice for trying this case
does not fulfill the qualifications prescribed for appointment as a
Special Judge. But, that consideration apart, the argument is that,
while a High Court can transfer a case from one special judge to
another, and the Supreme Court, from a special judge in one State to
a special judge in another State, a High Court cannot withdraw a case
from a Special Judge to itself and the Supreme Court cannot transfer
a case from a Special Judge to the High Court.
7. On the other hand, it is contended for the respondent that the
only purpose of the 1952 Act is to ensure that cases of corruption
and bribery do not get bogged up in the ordinary criminal courts
which are over- burdened with all sorts of cases. Its object is not
to create special courts in the sense of courts manned by specially
qualified personnel or courts following any special type of
procedure. All that is done is to earmark some of the existing
sessions judges for trying these offences exclusively. The idea is
just to segregate corruption and bribery cases to a few of the
sessions judges so that they could deal with them 126 effectively and
expeditiously. It is a classification in which the emphasis is on the
types of offences and nature of offenders rather than on the
qualifications of judges. That being so, the requirement in section
7(1) that these cases should be tried by special judges only is
intended just to exclude their trial by the other normal criminal
courts of coordinate jurisdiction and not to exclude the High Court.
8. Before dealing with these contentions, it may be useful to
touch upon the question whether a judge of a High Court can be
appointed by the State Government as a special judge to try offences
of the type specified in section 6 of the 1952 Act. It will be seen
at once that not all the judges of the High Court (but only those
elevated from the State subordinate judiciary) would fulfill the
qualifications prescribed under section 6(2) of the 1952 Act. Though
there is nothing in ss. 6 and 7 read together to preclude altogether
the appointment of a judge of the High Court fulfilling the above
qualifications as a special judge, it would appear that such is not
the (atleast not the normal) contemplation of the Act. Perhaps it is
possible to argue that, under the Act, it is permissible for the
State Government to appoint one of the High Court Judges (who has
been a Sessions Judge) to be a Special Judge under the Act.
If that had been done, that Judge would have been a Special Judge
and would have been exercising his original jurisdiction in
conducting the trial. But that is not the case here. In response to a
specific question put by us as to whether a High Court Judge can be
appointed as a Special Judge under the 1952 Act, Shri Jethmalani
submitted that a High Court Judge cannot be so appointed. I am
inclined to agree. The scheme of the Act, in particular the provision
contained in ss. 8(3A) and 9, militate against this concept.
Hence, apart from the fact that in this case no appointment of a
High Court Judge, as a Special Judge, has in fact been made, it is
not possible to take the view that the statutory provisions permit
the conferment of a jurisdiction to try this case on a High Court
Judge as a Special Judge.
9. Turning now to the powers of transfer under section 407, one
may first deal with the decision of this Court in Gurucharan Das
Chadha v. State of Rajasthan, [1966] 2 S.C.R.
678 on which both counsel strongly relied. That was a decision by
three judges of this Court on a petition under section 527 of the
1898 Cr.P.C. (corresponding to section 406 of the 1973 Cr.P.C.). The
petitioner had prayed for the transfer of a case pending in the court
of a Special Judge in Bharatpur, Rajasthan to another criminal court
of equal or superior jurisdiction subordinate to a High Court other
than the High Court of 127 Rajasthan. The petition was eventually
dismissed on merits.
But the Supreme Court dealt with the provisions of section 527 of
the 1898 A Cr.P.C. in the context of an objection taken by the
respondent State that the Supreme Court did not have the jurisdiction
to transfer a case pending before the Special Judge, Bharatpur. The
contention was that a case assigned by the State Government under the
1952 Act to a Special Judge cannot be transferred at all because,
under the terms of that Act, which is a self-contained special law,
such a case must be tried only by the designated Special Judge. The
Court observed that the argument was extremely plausible but not
capable of bearing close scrutiny. After referring to the provisions
of section 6, 7 and 8 of the 1952 Act, the Court set out the
arguments for the State thus:
"The Advocate-General, Rajasthan, in opposing the petition
relies principally on the provisions of section 7(1) and 7(2) and
contends that the two sub-sections create two restrictions which must
be read together. The first is that offences specified in section
6(1) can be tried by Special Judges only. The second is that every
such offence shall be tried by the Special Judge for the area within
which it is committed and if there are more special judges in that
area by the Special Judge chosen by the Government. These two
conditions, being statutory, it is submitted that no order can be
made under section 527 because, on transfer, even if a special judge
is entrusted with the case, the second condition is bound to be
broken." Dealing with this contention the Court observed:
"This condition, if literally understood, would lead to the
conclusion that a case once made over to a special Judge in an area
where there is no other special Judge, cannot be transferred at all.
This could hardly have been intended. If this were so, the power
to transfer a case intra-state under s. 526 of the Code of Criminal
Procedure, on a parity of reasoning, must also be lacking. But this
Court in Ramachandra Parsad v. State of Bihar, [1962] 2 S.C.R. 50
unheld the transfer of a case by the High Court which took it to a
special judge who had no jurisdiction in the area where the offence
was committed. In holding that the transfer was valid this Court
relied upon the third sub-section of Section 8 of the Act. That
sub-section preserves the application of any provision of the Code of
Criminal Procedure it it is not 128 inconsistent with the Act, save
as provided in the first two sub-sections of that section. The
question, therefore, resolves itself to this: Is there an
inconsistency between S. 527 of the Code and the second sub-section
of S. 7? The answer is that there is none. Apparently this Court in
the earlier case found no inconsistency and the reasons appear to be
there: The condition that an offence specified in S. 6(2) shall be
tried by a special Judge for the area within which it is committed
merely specifies which of several special Judges appointed in the
State by the State Government shall try it. The provision is
analogous to others under which the jurisdiction of Magistrates and
Sessions Judges is deter mined on a territorial basis. Enactments in
the Code of Criminal Procedure intended to confer territorial
jurisdiction upon courts and Presiding officers have never been held
to stand in the way of transfer of criminal cases outside those areas
of territorial jurisdiction. The order of transfer when it is made
under the powers given by the Code invests another officer with
jurisdiction although ordinarily he would lack territorial
jurisdiction to try the case. The order of this Court, therefore,
which transfer(s) a case from one special Judge subordinate to one
High Court to another special Judge subordinate to another High Court
creates jurisdiction in the latter in much the same way as the
transfer by the High Court from one Sessions Judge in a Session
Division to another Sessions Judge in another Sessions Division.
There is no comparison between the first sub- section and the
second sub-section of Section 7.
The condition in the second sub-section of S. 7 is not of the same
character as the condition in the first sub-section. The first
sub-section creates a condition which is a sine qua non for the trial
of certain offences. That condition is that the trial must be before
a special Judge. The second sub- section distributes the work between
special Judges and lays emphasis on the fact that trial must be
before a special Judge appointed for the area in which the offence is
committed. This second condition is on a par with the distribution of
work territorially between different Sessions Judges and Magistrates.
An order of transfer, by the very nature of things must, some times,
result in taking the case out of the territory and the provisions of
the Code which are preserved by the third sub- 129 section of S. 8
must supervene to enable this to be done and the second sub-section
of S. 7 must yield. We do not consider that this creates any
inconsistency because the territorial jurisdiction created by the
second sub-section of S. 7 operates in a different sphere and under
different circumstances. Inconsistency can only be found if two
provisions of law apply in identical circumstances and create
contradictions. Such a situation does not arise when either this
Court or the High Court exercises its powers of transfer.
We are accordingly of the opinion that the Supreme Court in
exercise of its jurisdiction and power under S. 527 of the Code of
Criminal Procedure can transfer a case from a Special Judge
subordinate to the High Court to another special Judge subordinate to
another High Court. " (emphasis added)
10. The attempt of Sri Jethmalani is to bring the present case
within the scope of the observations contained in the latter part of
the extract set out above. He submits that a special judge, except
insofar as a specific provision to the contrary is made, is a court
subordinate to the High Court, as explained in 1984 2 S.C.R. 914 (at
pages 943-4) and proceedings before him are subject to the provisions
of the 1973 Cr.P.C.; the field of operation of the first sub- section
of section 7 is merely to earmark certain Sessions Judges for
purposes of trying cases of corruption by public servants and this
provision is, in principle, not different from the earmarking of
cases on the basis of territorial jurisdiction dealt with by
sub-section 2 of section 7. The argument is no doubt a plausible one.
It does look somewhat odd to say that a Sessions Judge can, but a
High Court Judge cannot, try an offence under the Act. The object of
the Act, as rightly pointed out by counsel, is only to segregate
certain cases to special courts which will concentrate on such cases
so as to expedite their disposal and not to oust the superior
jurisdiction of the High Court or its powers of superintendencet over
subordinate courts under article 227 of the Constitution, an aspect
only of which is reflected in s. 407 of the Cr.P.C. However, were the
matter to be considered as res integra, I would be inclined to accept
the contention urged on behalf of the appellant, for the following
reasons. In the first place, the argument of the counsel for the
respondent runs counter to the observations made by the Supreme Court
in the earlier part of the extract set out above that the first
sub-section of section 7 and the second sub-section are totally
different in character.
The first sub-section deals with a sine qua non for the trial of
certain offences, whereas the second sub-section is only of a pro-
130 cedural nature earmarking territorial jurisdiction among persons
competent to try the offence. They are, therefore, vitally different
in nature. The Supreme Court has clearly held in the passage
extracted above that the case can be transferred only from one
special judge to another. In other words, while the requirement of
territorial jurisdiction is subordinate to S. 406 or 407, the
requirement that the trial should be by a special judge is not. It is
true that those observations are not binding on this larger Bench and
moreover the Supreme Court there was dealing only with an objection
based on sub-section (2) of Section 7. It is, however, clear that the
Bench, even if it had accepted the transfer petition of Gurcharan Das
Chadha, would have rejected a prayer to transfer the case to a court
other than that of a Special Judge appointed by the transferee State.
I am in respectful agreement with the view taken in that case that
there is a vital qualitative difference between the two sub-sections
and that while a case can be transferred to a special judge who may
not have the ordinary territorial jurisdiction over it, a transfer
cannot be made to an ordinary magistrate or a court of session even
if it has territorial jurisdiction. If the contention of the learned
counsel for the respondent that s. 7(1) and s. 407 operate in
different fields and are not inconsistent with each other were right,
it should be logically possible to say that the High Court can, under
s. 407, transfer a case from a special judge to any other Court of
Session. But such a conclusion would be clearly repugnant to the
scheme of the 1952 Act and plainly incorrect. It is, therefore,
difficult to accept the argument of Sri Jethmalani that we should
place the restriction contained in the first sub-section of section 7
also as being on the same footing as that in the second sub- section
and hold that the power of transfer contained in the Criminal
Procedure Code can be availed of to transfer a case from a Special
Judge to any other criminal court or even the High Court. The case
can be transferred only from one special judge to another special
judge; it cannot be transferred even to a High Court Judge except
where a High Court Judge is appointed as a Special Judge. A power of
transfer postulates that the court to which transfer or withdrawal is
sought is competent to exercise jurisdiction over the case. (vide,
Raja Soap Factory v. Shantaraj, [1965] 2 S.C.R. 800).
11. This view also derives support from two provisions of S. 407
itself. The first is this. Even when a case is transferred from one
criminal court to another, the restriction as to territorial
jurisdiction may be infringed.
To obviate a contention based on lack of territorial jurisdiction
in the transferee court in such a case, clause (ii) of s. 407
provides that the order of transfer will prevail, lack of
jurisdiction 131 under Ss. 177 to 185 of the Code notwithstanding.
The second difficulty arises, even under the Cr.P.C. itself, by
virtue of S. 197 which not only places restriction on the institution
of certain prosecutions against public servants without Government
sanction but also empowers the Government, inter alia, to determine
the court before which such trial is to be conducted. When the forum
of such a trial is transferred under s. 407 an objection may be taken
to the continuance of the trial by the transferee court based on the
order passed under s. 197. This eventuality is provided against by s.
407(9) of the Act which porvides that nothing in s. 407 shall be
deemed to affect an order passed under s. 407. Although specifically
providing for these contingencies, the section is silent in so far as
a transfer from the court of a Special Judge under the 1952 Act is
concerned though it is a much later enactment.
12. On the contrary, the language of s. 7(1) of the 1952 Act
places a definite hurdle in the way of construing s. 407 of the
Cr.P.C. as overriding its provisions. For, it opens with the words:
"Notwithstanding anything contained in the Code of Criminal
Procedure, 1898 or in any other law".
In view of this non-obstanti clause also, it becomes difficult to
hold that the provisions of section 407 of the 1973 Cr.P.C. will
override, or even operate consistently with, the provisions of the
1952 Act. For the same reason it is not possible to hold that the
power of transfer contained in clause 29 of the Letters Patent of the
Bombay High Court can be exercised in a manner not contemplated by
section 7(1) of the 1952 Act.
13. Thirdly, whatever may be the position where a case is
transferred from one special judge to another or from one ordinary
subordirate criminal court to another of equal or superior
jurisdiction, the withdrawal of a case by the High Court from such a
Court to itself for trial places certain handicaps on the accused. It
is true that the court to which the case has been transferred is a
superior court and in fact, the High Court. Unfortunately, however,
the high Court judge is not a person to whom the trial of the case
can be assigned under s. 7(1) of the 1952 Act. As pointed out by the
Supreme Court in Surajmal Mohta v. Viswanatha Sastry, [1955] 1 S.C.R.
448 at pp. 464 in a slightly different context, the circumstance that
a much superior forum is assigned to try a case than the one normally
available cannot by itself be treated as a "sufficient safeguard
and a good substitute" for the 132 normal forum and the rights
available under the normal procedure. The accused here loses his
right of coming up in revision or appeal to the High Court from the
interlocutory and final orders of the trial court. He loses the right
of having two courts-a subordinate court and the High Court-
adjudicate upon his contentions before bringing the matter up in the
Supreme Court. Though, as is pointed out later, these are not such
handicaps as violate the fundamental rights of such an accused, they
are circumstances which create prejudice to the accused and may not
be overlooked in adopting one construction of the statute in
preference to the other.
14. Sri Jethmalani vehemently contended that the construction of
s. 407 sought for by the appellant is totally opposed to well settled
canons of statutory construction. He urged that the provisions of the
1952 Act should be interpreted in the light of the objects it sought
to achieve and its amplitude should not be extended beyond its
limited objective. He said that a construction of the Act which leads
to repugnancy with, or entails pro tanto repeal of, the basic
criminal procedural law and seeks to divest jurisdiction vested in a
superior court should be avoided. These aspects have been considered
earlier. The 1952 Act sought to expedite the trial of cases involving
public servants by the creation of courts presided over by
experienced special judges to be appointed by the State Government.
There is however nothing implausible in saying that the Act having
already earmarked these cases for trial by experienced Sessions
Judges made this provision immune against the applicability of the
provisions of other laws in general and the Cr.P.C. in particular.
Effect is only being given to these express and specific words used
in section 7(1) and no question arises of any construction being
encouraged that is repugnant to the Cr.P.C. Or involves an implied
repeal, pro tanto, of its provisions. As has already been pointed
out, if the requirement in s. 7(1) were held to be subordinate to the
provisions contained in s. 406-7, then in principle, even a case
falling under the 1952 Act can be transferred to any other Sessions
Judge and that would defeat the whole purpose of the Act and is
clearly not envisaged by it.
Supreme Court's power of transfer
15. It will have been noticed that the power of transfer under
section 407 or cl. 29 of the Letters Patent which has been discussed
above is a power vested in the High Court. So the question will arise
whether, even assuming that the High Court could have exercised such
power, the Supreme Court could have done so. On behalf of the 133
respondent, it was contended that, as the power of the High Court
under s. 407 can be exercised on application of a party or even suo
motu and can be exercised by it at any stage irrespective of whether
any application or matter in connection with the case is pending
before it or not, the Supreme Court, as an appellate Court, has a
co-equal jurisdiction to exercise the power of transfer in the same
manner as the High Court could. In any event, the Supreme Court could
exercise the power as one incidental or ancillary to the power of
disposing of a revision or appeal before it. The appellants, however,
contend that, as the power of the Supreme Court to order transfer of
cases has been specifically provided for in section 406 and would
normally exclude cases of intra-state transfer covered by section 407
of the Code, the statute should not be so construed as to imply a
power of the Supreme Court, in appeal or revision, to transfer a case
from a subordinate court to the High Court. The argument also is that
what the Supreme Court, as an appellate or revisional court, could
have done was either (a) to direct the High Court to consider whether
this was a fit case for it to exercise its power under section
407(1)(iv) to withdraw the case to itself and try the same with a
view to expeditiously dispose it of or (b) to have withdrawn the case
to itself for trial.
But, it is contended, no power which the Supreme Court could
exercise as an appellate or revisional court could have enabled the
Supreme Court to transfer the case from the Special Judge to the High
Court.
16. Here also, the contentions of both parties are nicely balanced
but I am inclined to think that had the matter been res integra and
directions for transfer were being sought before us for the first
time, this Court would have hesitated to issue such a direction and
may at best have left it to the High Court to consider the matter and
exercise its own discretion. As already pointed out, the powers of
the Supreme Court to transfer cases from one court to another are to
be found in Article 139-A of the Constitution and section 406 of the
Cr.P.C. The provisions envisaged either inter-state transfers of
cases i.e. from a court in one State to a court in another State or
the withdrawal of a case by the Supreme Court to itself. Intra- State
transfer among courts subordinate to a High Court inter-se or from a
court subordinate to a High Court to the High Court is within the
jurisdiction of the appropriate High Court. The attempt of counsel
for the resondent is to justify the transfer by attributing the
powers of the High Court under section 407 to the Supreme Court in
its capacity as an appellate or revisional court. This argument
overlooks that the powers of the Supreme Court, in disposing of an
appeal or revision, are circumscribed by the scope of the proceedings
before it. In this 134 case, it is common ground that the question of
transfer was not put in issue before the Supreme Court.
17. The reliance placed in this context on the provisions
contained in articles 140 and 142 of the Constitution and S. 401 read
with S. 386 of the Cr.P.C. does not also help. Article 140 is only a
provisions enabling Parliament to confer supplementary powers on the
Supreme Court to enable it to deal more effectively to exercise the
jurisdication conferred on it by or under the Constitution.
Article 142 is also not of much assistance. In the first place,
the operative words in that article, again are "in the exercise
of its jurisdiction." The Supreme Court was hearing an appeal
from the order of discharge and connected matters. There was no issue
or controversy or discussion before it as to the comparative merits
of a trial before a special judge vis-a-vis one before the High
Court. There was only an oral request said to have been made,
admittedly, after the judgment was announced. Wide as the powers
under article 141 are, they do not in my view, envisage an order of
the type presently in question. The Nanavati case (1961 SCR 497, to
which reference was made by Sri Jethmalani, involved a totally
different type of situation. Secondly, it is one of the contentions
of the appellant that an order of this type, far from being necessary
for doing complete justice in the cause or matter pending before the
Court, has actually resulted in injustice, an aspect discussed a
little later. Thirdly, however wide and plenary the language of the
article, the directions given by the Court should not be inconsistent
with, repugnant to or in violation of the specific provisions of any
statute. If the provisions of the 1952 Act read with article 139-A
and Ss.406-407 of the Cr.P.C. do not permit the transfer of the case
from a special judge to the High Court, that effect cannot be
achieved indirectly. it is, therefore, difficult to say, in the
circumstances of the case, that the Supreme Court can issue the
impugned direction in exercise of the powers under Article 142 or
under s. 407 available to it as an appellate court.
18. Learned counsel for the complainant also sought to support the
order of transfer by reference to section 386 and 401 of the 1973
Cr.P.C. He suggested that the Court, having set aside the order of
discharge, had necessarily to think about consequential orders and
that such directions as were issued are fully justified by the above
provisions. He relied in this context on the decision of the Privy
Council in Hari v. Emperor, AIR 1935 P.C.122. It is difficult to
accept this argument. Section 401 provides that, in the revision
pending before it, the High Court can exercise any of the powers
conferred on a 135 court of appeal under section 386. Section 386,
dealing with the powers of the appellate court enables the court, in
a case such as this: (i) under clause (a), to alter or reverse the
order under appeal/revision; or (ii) under clause (e), to make any
amendment or any consequential or incidental order that may be just
or proper. The decision relied on by counsel, Hari v. Emperor, AIR
1935 P.C. 122, is of no assistance to him. In that case, the
Additional Judicial Commissioner, who heard an appeal on a difference
of opinion between two other judicial commissioner had come to the
conclusion that the conviction had to be set aside. Then he had the
duty to determine what should be done and S. 426 of the 1898 Cr.P.C.
(corresponding to section 386 of the 1973 Cr.P.C.) exactly provided
for the situation and empowered him:
"to reverse the finding and sentence and acquit or discharge
the accused or order him to be retried by a court of competent
jurisdiction subordinate to such apellate Court." In the present
case, the Special Judge. Sri Sule, had discharged the accused because
of his conclusion, that the prosecution lacked the necessary
sanction. The conclusion of the Supreme Court that this conclusion
was wrong meant, automatically, that the prosecution had been
properly initiated and that the proceedings before the Special Judge
should go on. The direction that the trial should be shifted to the
High Court can hardly be described as a consequential or incidental
order. Such a direction did not flow, as a necessary consequence of
the conclusion of the court on the issues and points debated before
it. I am, therefore, inclined to agree with counsel for the appellant
that this Court was in error when it directed that the trial of the
case should be before a High Court Judge.
19. It follows from the above discussion that the appellant, in
consequence of the impugned direction, is being tried by a 'Court
which has no jurisdiction-and which cannot be empowered by the
Supreme Court-to try him. The continued trial before the High Court,
therefore, infringes Article 21 of the Constitution.
Denial of equality and violation of Article 21.
20. It was vehemently contended for the appellant that, by giving
the impugned direction, this Court has deprived the appellant of his
fundamental rights. He has been denied a right to equality, 136
inasmuch as his case has been singled out for trial by a different,
though higher, forum as compared to other public servants. His
fundamental right under Article 21, it is said, has been violated,
inasmuch as the direction has deprived him of a right of revision and
first appeal to the High Court which he would have had from an order
or sentence had he been tried by a Special Judge and it is doubtful
whether he would have a right to appeal to this Court at all. It is
pointed out that a right of first appeal against a conviction in a
criminal case has been held, by this Court, to be a part of the
fundamental right guaranteed under Article 21 of the Constitution. It
is not necessary for me to consider these arguments in view of my
conclusion that the High Court could not have been directed to try
the petitioner's case. I would, however, like to say that, in my
opinion, the arguments based on Articles 14 and 21 cannot be
accepted, in case it is to be held for any reason that the transfer
of the apellant's case to the High Court was valid and within the
competence of this Court. I say this for the following reason: If the
argument is to be accepted, it will be appreciated, it cannot be
confined to cases of transfer to the High Court of cases under the
1952 Act but would also be equally valid to impugn the withdrawal of
a criminal case tried in the normal course under the Cr.P.C. from a
subordinate court trying it to the High Court by invoking the powers
under section 407. To put it in other words, the argument, in
substance, assails the validity of secion 407 of the 1973 Cr.P.C. In
my opinion, this attack has to be repelled. The section cannot be
challenged under Article 14 as it is based on a reasonable
classification having relation to the objects sought to be achieved.
Though, in general, the trial of cases will be by courts having the
normal jurisdiction over them, the exigencies of the situation may
require that they be dealt with by some other court for various
reasons. Likewise, the nature of a case, the nature of issues
involved and other circumstances may render it more expedient,
effective, expeditious or desirable that the case should be tried by
a superior court or the High Court itself. The power of transfer and
withdrawal contained in s. 407 of the Cr.P.C. is one dictated by the
requirements of justice and is, indeed, but an aspect of the
supervisory powers of a superior court over courts subordinate to it:
(see also sections 408 to 411 of the Cr.P.C.). A judicial discretion
to transfer or withdraw is vested in the highest court of the State
and is made exercisable only in the circumstances set out in the
section. Such a power is not only necessary and desirable but
indispensable in the cause of the administration of justice. The
accused will continue to be tried by a court of equal or superior
jurisdiction. Section 407(8) read with S.
474 of the Cr.P.C. and section 8(3) of the 1952 Act makes it clear
that he will be 137 tried in accordance with the procedure followed
by the original Court or ordinarily by a Court of Session. The
accused will, therefore, suffer no prejudice by reason of the
application of s. 407. Even if there is a differential treatment
which causes prejudice, it is based on logical and acceptable
considerations with a view to promote the interest of justice. The
transfer or withdrawal of a case to another court or the High Court,
in such circumstances, can hardly be said to result in hostile
discrimination against the accused in such a case.
21. Considerable reliance was placed on behalf of the appellant on
State v. Anwar Ali Sarkar, [1952] S.C.R. 284.
This decision seems to have influenced the learned judges before
whom this appeal first came up for hearing in referring the matter to
this larger Bench and has also been aplied to the facts and situation
here by my learned brother, Sabyasachi Mukharji, J. But it seems to
me that the said decision has no relevance here. There, the category
of cases which were to be allocated to a Special Judge were not well
defined; the selection of cases was to be made by the executive; and
the procedure to be followed by the special courts was different from
the normal criminal procedure. As already pointed out, the position
here is entirely different. The 1952 legislation has been enacted to
give effect to the Tek Chand Committee and to remedy a state of
affairs prevalent in respect of a well defined class of offences and
its provisions constituting special judges to try offences of
corruption is not under challenge. Only a power of transfer is being
exercised by the Supreme Court which is sought to be traced back to
the power of the High Court under s. 407. The vires of that provision
also is not being challenged. What is perhaps being said is that the
Supreme Court ought not to have considered this case a fit one for
withdrawal for trial to the High Court. That plea should be and is
being considered here on merits but the plea that Article 14 has been
violated by the exercise of a power under s. 407 on the strength of
Anwar Ali Sarkar's case wholly appears to be untenable. Reference may
be made in this context to Kathi Raning Rawat v. The State of
Saurashtra, [1952] 3 S.C.R. 435 and Re: Special Courts Bill, 1978,
[1979] 2 S.C.R. 476 and Shukla v. Delhi Administration, [1980] 3
S.C.R. 500, which have upheld the creation of special judges to try
certain classes of offences.
22. It may be convenient at this place to refer to certain
observations by the Bench of this Court, while referring this matter
to the larger Bench, in a note appended to their order on this
aspect. The learned Judges have posed the following questions in
paragraphs 4 and 6 of their note:
138 "4. The Criminal Law Amendment Act, 1952 as its preamble
says is passed to provide for speedier trial? Does not further
speeding up of the case by transferring the case to the High Court
for speedy disposal violate the principle laid down by seven learned
Judges of this Court in Anwar Ali Sarkar's case (1952) S.C.R. 284 and
result in violation of Article 14 of the Constitution? The following
observations of Vivian Bose, J. in Anwar Ali Sarkar's case at pages
366-387 of the Report are relevant:
'Tested in the light of these considerations, I am of opinion that
the whole of the West Bengal Special Courts Act of 1950 offends the
provisions of Article 14 and is therefore bad. When the froth and the
foam of discussion is cleared away and learned dialectics placed on
one side, we reach at last the human element which to my mind is the
most important of all. We find men accused of heinous crimes called
upon to answer for their lives and liberties. We find them picked out
from their fellows, and however much the new procedure may give them
a few crumbs of advantage, in the bulk they are deprived of
substantial and valuable privileges of defence which others,
similarly charged, are able to claim. It matters not to me, nor
indeed to them and their families and their friends, whether this be
done in good faith, whether it be done for the convenience of
government, whether the process can be scientifically classified and
labelled, or whether it is an experiment in speedier trials made for
the good of society at large. It matters now how lofty and laudable
the motives are. The question with which I charge myself is, can
fair-minded, reasonable, unbiassed and resolute men, who are not
swayed by emotion or prejudice, regard this with equanimity and call
it reasonable, just and fair, regard it as that equal treatment and
protection in the defence of liberties which is expected of a
sovereign democratic republic in the conditions which obtain in India
today? I have but one answer to that. On that short and simple ground
I would decide this case and hold the Act bad.' (Underlining by us)
Do not the above observations apply to judicial orders also? 139
6. Does the degree of heinousness of the crime with which an
accused is charged or his status or the influence that he commands in
society have any bearing on the applicability or the constriction of
Article 14 or Article 21.?"
23. In my opinion, the answers to the questions posed will, again,
depend on whether the impugned direction can be brought within the
scope of section 407 of the 1973 Cr.P.C.
Or not. If I am right in my conclusion that it cannot, the
direction will clearly be contrary to the provisions of the Cr.P.C.
and hence violative of Article 21. It could also perhaps be said to
be discriminatory on the ground that, in the absence of not only a
statutory provision but even any well defined policy or criteria, the
only two reasons given in the order-namely, the status of the
petitioner and delay in the progress of the trial-are inadequate to
justify the special treatment meted out to the appellant. On the
other hand, if the provisions of section 407 Cr.P.C. are applicable,
the direction will be in consonance with a procedure prescribed by
law and hence safe from attack as violative of Article 21. The
reasons given, in the context of the developments in the case, can
also be sought to be justified in terms of clauses (a), (b) or (c) of
Section 407(1). In such an event, the direction will not amount to an
arbitrary discrimination but can be justified as the exercise of a
choice of courses permitted under a valid statutory classification
intended to serve a public purpose.
24. The argument of infringment of article 21 is based essentially
on the premise that the accused will be deprived, in cases where the
trial is withdrawn to the High Court of a right of first appeal. This
fear is entirely unfounded. I think Sri Jethmalani is right in
contending that where a case is thus withdrawn and tried by the
Court, the High Court will be conducting the trial in the exercise of
its extraordinary original criminal jurisdiction. As pointed out by
Sabyasachi Mukharji, J., the old Presidency- town High Courts once
exercised original jurisdiction in criminal matters but this has
since been abolished. One possible view is that now all original
criminal jurisdiction exercised by High Court is only extraordinary
original criminal jurisdiction. Another possible view is that still
High Courts do exercise ordinary original criminal jurisdiction in
habeas corpus and contempt of court matters and also under some
specific enactments (e.g. Companies' Act Ss. 454 and 633). They can
be properly described as exercising extraordinary original criminal
jurisdiction, where though the ordinary original criminal
jurisdiction is vested in a subordinate criminal court or special
Judge, a case is withdrawn by the High Court to itself for trial. The
140 decision in Madura Tirupparankundram etc. v. Nikhan Sahib, 35
C.W.N. 1088, Kavasji Pestonji v. Rustomji Sorabji, AIR 1949 Bombay
42, Sunil Chandra Roy and another v. The State, AIR 1954 Calcutta
305, People's Insurance Co. Ltd. v. Sardul Singh Caveeshar and
others, AIR 1961 Punjab 87 and People's Patriotic Front v. K.K. Birla
and others, [1984] Crl. L.J .
545 cited by him amply support this contention. If this be so,
then Sri Jethmalani is also right in saying that a right of first
appeal to the Supreme Court against the order passed by the High
Court will be available to the accused under s. 374 of the 1973
Cr.P.C. In other words, in the ordinary run of criminal cases tried
by a Court of Sessions, the accused will be tried in the first
instance by a court subordinate to the High Court; he will then have
a right of first appeal to the High Court and then can seek leave of
the Supreme Court to appeal to it under Article 136. In the case of a
withdrawn case, the accused has the privilege of being tried in the
first instance by the High Court itself with a right to approach the
apex Court by way of appeal.
The apprehension that the judgment in the trial by the High Court,
in the latter case, will be final, with only a chance of obtaining
special leave under article 136 is totally unfounded. There is also
some force in the submission of Sri Jethmalani that, if that really
be the position and the appellant had no right of appeal against the
High Court's judgment, the Supreme Court will consider any petition
presented under Article 136 in the light of the inbuilt requirements
of Article 21 and dispose of it as if it were itself a petition of
appeal from the judgment. (see, in this context, the observations of
this Court in Sadananthan v.
Arunachalam, [1980] 2 S.C.R. 673. That, apart it may be pointed
out, this is also an argument that would be valid in respect even of
ordinary criminal trials withdrawn to the High Court under s. 407 of
the Cr.P.C. and thus, like the previous argument regarding Article
14, indirectly challenges the validity of S.407 itself as infringing
Article 21. For the reasons discussed, I have come to the conclusion
that an accused, tried directly by the High Court by withdrawal of
his case from a subordinate court, has a right of appeal to the
Supreme Court under s. 374 of the Cr.P.C. The allegation of an
infringement of Article 2 1 in such cases is. therefore. unfounded.
Natural Justice
25. The appellant's contention that the impugned direction is sued
by this Court on 16.2.1984 was in violation of the principles of
natural justice appears to be well founded. It is really not in
dispute before us that there was no whisper or suggestion in the
proceedings before this Court that the venue of the trial should be
shifted to the High Court. This direction was issued suo motu by the
learned Judges without putting it to the counsel for the parties that
this was what they 141 proposed to do. The difficulties created by
observations or directions on issues not debated before the Court
have been highlighted by Lord Diplock in Hadmor Productions Ltd. v.
Hamilton, [1983] A.C. 191). In that case, Lord Denning, in the
Court of Appeal, had in his judgment, relied on a certain passage
from the speech of Lord Wedderburn in Parliament as reported in
Hansard (Parliamentary Reports) in support of the view taken by him.
The counsel for the parties had had no inkling or information that
recourse was likely to be had by the Judge to this source, as it had
been authoritatively held by the House of Lords in Davis v.
Johns, [1979] A.C. 264 that these reports should not be referred
to by counsel or relied upon by the court for any purpose. Commenting
on this aspect, Lord Diplock observed:
"Under our adversary system of procedure, for a judge to
disregard the rule by which counsel are bound has the effect of
depriving the parties to the action of the benefit of one of the most
fundamental rules of natural justice: the right of each to be
informed of any point adverse to him that is going to be relied upon
by the judge and to be given an opportunity of stating what his
answer to it is. In the instant case, counsel for Hamilton and Bould
complained that Lord Denning M.R. had selected one speech alone to
rely upon out of many that had been made .. and that, if he has
counsel had known that (Lord Denning) was going to do that, not only
would he have wished to criticise what Lord Wedderburn had said in
his speech ....... but he would also have wished to rely on other
speeches disagreeing with Lord Wedderburn if he, as counsel, had been
entitled to refer to Hansard ....." The position is somewhat
worse in the present case. Unlike the Hamilton case (supra) where the
Judge had only used Hansard to deal with an issue that arose in the
appeal, the direction in the present case was something totally alien
to the scope of the appeal, on an issue that was neither raised nor
debated in the course of the hearing and completely unexpected.
26. Shri Jethmalani submitted that, when the judgment was
announced, counsel for the complainant (present respondent) had made
an oral request that the trial be transferred to the High Court and
that the Judges replied that they had already done that. He submitted
that, at that time and subsequently, the appellant could have
protested and put forward his objections but did not and had thus 142
acquiesced in a direction which was, in truth, beneficial to him as
this Court had only directed that he should be tried by a High Court
Judge, a direction against which no one can reasonably complain. This
aspect of the respondent's arguments will be dealt with later but,
for the present, all that is necessary is to say that the direction
must have come as a surprise to the appellant and had been issued
without hearing him on the course proposed to be adopted.
Conclusion
27. To sum up, my conclusion on issue A is that the direction
issued by the Court was not warranted in law, being contrary to the
special provisions of the 1952 Act.
was also not in conformity with the principles of natural justice
and that, unless the direction can be justified with reference to S.
407 of the Cr. P.C., the petitioner's fundamental rights under
Articles 14 and 21 can be said to have been infringed by reason of
this direction. This takes me on to the question whether it follows
as a consequence that the direction issued can be, or should be,
recalled, annulled, revoked or set aside by us now.
B. CAN AND SHOULD THE DIRECTION OF 16.2.84 BE RECALLED?
28. It will be appreciated that, whatever may be the ultimate
conclusion on the correctness, propriety or otherwise of the Court's
direction dated 16.2.1984, that was a direction given by this Court
in a proceeding between the same parties and the important and
farreaching question that falls for consideration is whether it is at
all open to the appellant to seek to challenge the correctness of
that direction at a later stage of the same trial.
Is a review possible?
29. The first thought that would occur to any one who seeks a
modification of an order of this Court, particularly on the ground
that it contained a direction regarding which he had not been heard,
would be to seek a review of that order under Article 137 of the
Constitution read with the relevant rules. Realising that this would
be a direct and straight forward remedy, it was contended for the
appellant that the present appeal may be treated as an application
for such review.
30. The power of review is conferred on this Court by Article 137
of the Constitution which reads thus:
143 "Subject to the provisions of any law made by Parliament
or any rules made under Article 145, the Supreme Court shall have
power to review any judgment pronounced or order made by it." It
is subject not only to the provisions of any law made by Parliament
(and there is no such law so far framed) but also to any rules made
by this Court under Article 145. This Court has made rules in
pursuance of art. 145 which are contained in order XL in Part VIII of
the Supreme Court Rules. Three of these rules are relevant for our
present purposes. They read as follows:
"(1) The Court may review its judgment or order, but no
appliction for review will be entertained in a civil proceeding
except on the ground mentioned in order XLVII, rule 1 of the Code,
and in a criminal proceeding except on the ground of an error
apparent on the face of the record.
(Z) An application for review shall be by a petition. and shall be
filed within thirty days from the date of the judgment or order
sought to be reviewed. It shall set out clearly its grounds for
review.
(3) Unless otherwise ordered by the Court an application for
review shall be disposed of by circulation without any oral
arguments, but the petitioner may supplement his petition by
additional written arguments. The court may either dismiss the
petition or direct notice to the opposite party. An application for
review shall as far as practicable be circulated to the same Judge or
Bench of Judges that delivered the judgment or order sought to be
reviewed."
31. It is contended on behalf of the respondent that the present
pleas of the appellant cannot be treated as an application for
review, firstly, because they do not seek to rectify any error
apparent on the face of the record;
secondly, because the prayer is being made after the expiry of the
period of thirty days mentioned in rule 2 and there is no sufficient
cause for condoning the delay in the making of the application and
thirdly, for the reason that a review petition has to be listed as
far as practicable before the same Judge or Bench of Judges that
delivered the order sought to be reviewed and in this case at least
two of the learned Judges, who passed the order on 16.2.1984, are
still available to consider the application for review. These grounds
may now be considered.
144
32. For reasons which I shall later discuss, I am of opinion that
the order dated 16.2.1984 does not suffer from any error apparent on
the face of the record which can be rectified on a review
application. So far as the second point is concerned, it is common
ground that the prayer for review has been made beyond the period
mentioned in Rule 2 of order XL of the Supreme Court Rules. No doubt
this Court has power to extend the time within which a review
petition may be filed but learned counsel for the respondent
vehemently contended that this is not a fit case for exercising the
power of condonation of delay. It is urged that, far from this being
a fit case for the entertainment of the application for review beyond
the time prescribed, the history of the case will show that the
petitioner has deliberately avoided filing a review petition within
the time prescribed for reasons best known to himself .
33. In support of his contention, learned counsel for the
respondent invited our attention to the following sequence of events
and made the following points:
(a) The order of this Court was passed on 16.2.1984.
At the time of the pronouncement of the said order, counsel for
the present respondent had made a request that the trial of the case
may be shifted to the High Court and the Court had observed that a
direction to this effect had been included in the judgment. Even
assuming that there had been no issues raised and no arguments
advanced on the question of transfer at the time of the hearing of
the appeals, there was nothing to preclude the counsel for the
appellant, when the counsel for the complainant made the above
request, from contending that it should not be done, or, at least,
that it should not be done without further hearing him and pointing
out this was not a matter which had been debated at the hearing of
the appeal. But no, the counsel for the accused chose to remain quiet
and did not raise any objection at that point of time. He could have
filed a review application soon thereafter but he did not do so.
Perhaps he considered, at that stage, that the order which after all
enabled him to be tried by a High Court Judge in preference to a
Special Judge was favourable to him and, therefore, he did not choose
to object.
(b) The matter came up before the trial judge on 13th March, 1984.
The accused, who appeared in person, stated that he 145 did not want
to engage any counsel "at least for the present'. A He would not
put down his arguments in writing and when he argued the gravemen of
his attack was that this Court's order transferring the trial from
the Special Judge to the High Court was wrong on merits. Naturally,
the learned Judge found it difficult to accept the contention that he
should go behind the order of the Supreme Court. He rightly pointed
out that if the accused had any grievance to make, his proper remedy
was to move the Supreme Court for review of its judgment or for such
further directions or clarifications as may be expedient. Thus, as
early as 13th March, 1984, Khatri, J., had given a specific
opportunity to the accused to come to this Court and seek a review of
the direction. it can perhaps be said that on 16.2.1984, when this
Court passed the impugned direction, the appellant was not fully
conscious of the impact of the said direction and that, therefore, he
did not object to it immediately. But, by the 13th March, 1984, he
had ample time to think about the matter and to consult his counsel.
The appellant himself was a barrister. He chose not to engage counsel
but to argue himself and, even after the trial court specifically
pointed out to him that it was bound by the direction of this Court
under Arts. 141 and 144 of the Constitution and that, if at all, his
remedy was to go to the Supreme Court by way of review or by way of
an application for clarification, he chose to take no action thereon.
c) on 16th March, 1984, Khatri, J. disposed of the preliminary
objections raised by the accused challenging the jurisdiction and
competence of this Court to try the accused. Counsel for the
respondent points out that, at the time of the hearing, the appellant
had urged before Khatri, J.
all the objections to the trial, which he is now putting forth.
These objections have been summarised in paragraph 3 of the order
passed by the learned Judge and each one of them has been dealt with
elaborately by the learned Judge. It has been pointed out by him that
the Supreme Court was considering not only the appeals preferred by
the accused and the complainant, namely, Crl.
Appeal Nos. 246, 247 and 356 of 1983 but also two revision
petitions being C.R. Nos. 354 'and 359 of 1983 which had been
withdrawn by the Supreme Court to itself for disposal along with Crl.
Appeal No.
356 of 1983. A little later in the order the learned Judge pointed
out that, even 146 assuming that in the first instance the trial can
be conducted only by a Special Judge, the proceedings could be
withdrawn by the high Court to itself under powers vested in it under
Article 228(a) of the Constitution as well as section 407 of the
Cr.P.C. When the criminal revisions stood transferred to the Supreme
Court (this was obviously done under Article 139-A though that
article is not specifically mentioned in the judgment of the Supreme
Court), the Supreme Court could pass the order under Article 139-A
read with Article 142. The learned Judge also disposed of the
objections based on Article 21. He pointed out that as against an
ordinary accused person tried by a special judge, who gets a right of
appeal to the High Court, a court of superior jurisdiction, with a
further right of appeal to the Supreme Court under s. 374 of the
Cr.P.C. and that an order of transfer passed in the interest of
expeditious disposal of a trial was primarily in the interests of the
accused and could hardly be said to be pre judicial to the accused.
Despite the very careful and fully detailed reasons passed by the
High Court, the appellant did not choose to seek a review of the
earlier direction.
(d) Against the order of the learned Judge dated 16.3.1984 the
complainant came to the Court because he was dissatisfied with
certain observations made by the trial Judge in regard to the
procedure to be followed by the High Court in proceeding with the
trial. This matter was heard in open court by same five learned
Judges who had disposed of the matter earlier on 16.2.1984. The
accused was represented by a senior counsel and the Government of
Maharashtra had also engaged a senior counsel to represent its case.
Even at this hearing the counsel for the appellant did not choose to
raise any objection against the direction given in the order dated
16.2.1984. The appeal before the Supreme Court was for getting a
clarification of the very order dated 16.2.1984.
This was a golden opportunity for the appellant also to seek a
review or clarification of the impugned direction, if really he had a
grievance that he had not been heard by the Court before it issued
the direction and that it was also contrary to the provisions of the
1952 Act as well as violative of the rights of the accused under Art.
21 of the Constitution.
(e) The petitioner instead filed two special leave petitions and a
writ petition against the orders of Khatri. J. dated 13.3.1984 147
and 16.3.1984. In the writ petition, the petitioner had mentioned
that the impugned direction had been issued without hearing him. In
these matters counsel for the accused made both oral and written
submissions and all contentions and arguments, which have now been
put forward, had been raised in the written arguments. The appeals
and writ petition were disposed of by this Court. This Court
naturally dismissed the special leave petitions pointing out that the
High Court was quite correct in considering itself bound by the
directions of the Court. The Court also dismissed the writ petition
as without merit. But once again it observed that the proper remedy
of the petitioner was elsewhere and not by way of a writ petition.
These two orders, according to the learned counsel for the
respondent, conclude the matter against the appellant. The dismissal
of the writ petition reminded the petitioner of his right to move the
Court by other means and, though this advice was tendered as early as
17.4.1984, the petitioner did nothing. So far as the special leave
petition was concerned, its dismissal meant the affirmation in full
of the decision given by Justice Khatri dismissing and disposing of
all the objections raised by the petitioner before him.
Whatever may have been the position on 16.2.1984 or 16.3.1984,
there was absolutely no explanation or justification for the conduct
of the petitioner in failing to file an application for review
between 17.4.1984 and october, 1986.
34. Recounting the above history, which according to him fully
explained the attitude of the accused, learned counsel for the
respondent submitted that in his view the appellant was obviously
trying to avoid a review petition perhaps because it was likely to go
before the same learned Judges and he did not think that he would get
any relief and perhaps also because he might have felt that a review
was not an adequate remedy for him as, under the rules, it would be
disposed of in chamber without hearing him once again.
But, whatever may be the reason, it is submitted, the delay
between April 1984 and october, 1986 stood totally unexplained and
even now there was no proper review petition before this Court. In
the circumstances, it is urged that this present belated prayer for
review.
35. There is substance in these contentions. The prayer for review
is being made very belatedly, and having regard to the circumstances
outlined above there is hardly any reason to condone the 148 delay in
the prayer for review. The appellant was alive to all his present
contentions as is seen from the papers in the writ petition. At least
when the writ petition was dismissed as an inappropriate remedy, he
should have at once moved this Court for review. The delay from April
1984 to october 1986 is totally inexplicable. That apart, there is
also validity in the respondent's contention that. even if we are
inclined to condone the delay, the application will have to be heard
as far as possible by the same learned Judges who disposed of the
earlier matter. In other words, that application will have to be
heard by a Bench which includes the two learned Judges who disposed
of the appeal on 16.2.1984 and who are still available in this Court
to deal with any proper review application, that may be filed.
However, since in my view, the delay has not been satisfactorily
explained, I am of opinion that the prayer of the appellant that the
present pleas may be treated as one in the nature of a review
application and the appellant given relief on that basis has to be
rejected.
Is a writ maintainable?
36. This takes one to a consideration of the second line of attack
by the appellant's counsel. His proposition was that a judicial order
of a court-even the High Court or this Court may breach the
principles of natural justice or the fundamental rights and that, if
it does so, it can be quashed by this Court in the exercise of its
jurisdiction under Article 32. In other words, the plea would seem to
be that the present proceedings may be treated as in the nature of a
writ petition to quash the impugned order on the above ground. The
earliest of the cases relied upon to support this contention is the
decision in Prem Chand Garg v. Excise Commissioner, [1963] Supp. 1
S.C.R. 885, which may perhaps be described as the sheet-anchor of the
appellant's contentions on this point. The facts of that case have
been set out in the judgment of Sabyasachi Mukharji, J. and need not
be repeated. The case was heard by a Bench of five judges. Four of
them, speaking through Gajendragadkar, J.
held that Rule 12 of order XXXV of the Supreme Court Rules
violated Article 32 and declared it invalid. This also set aside an
earlier order dated 12.12.1961 passed by the Court in pursuance of
the rule calling upon the petitioner to deposit cash security. Sri
Rao contended that this case involved two separate issues for
consideration by the Court:
(a) the validity of the rule and (b) the validity of the order
dated 12.12.1961; and that the decision is authority not only for the
proposition that a writ petition under Article 32 could be filed to
Impugn the constitutional validity of a rule but also for the
proposition that the Court could entertain a writ petition to set
aside a judicial 149 Order passed by the Court earlier on discovering
that it is inconsistent with the fundamental rights of the
petitioner.
Counsel submitted that an impression in the minds of some persons
that the decision in Prem Chand Garg is not good law after the
decision of the nine-Judge Bench in Naresh Sridhar Mirajkar v. State,
[1966]3 S.C.R. 744 is incorrect. He submitted that, far from Garg's
case being overruled, it has been confirmed in the later case.
37. Mirajkar was a case in which the validity of an interlocutory
order passed by a judge of the Bombay High Court pertaining to the
publication of reports of the proceedings in a suit pending before
him was challenged by a journalist as violating his fundamental
rights under Article 19 of the Constitution. The matter came to the
Supreme Court by way of a writ petition under Article 32. The
validity of the order was upheld by the majority of the Judges while
Hidayatullah J. dissented. In this connection it is necessary to
refer to a passage at p. 767 in the judgment of Gajendragadkar, C.J.
"Mr. Setalvad has conceded that if a court of competent
jurisdiction makes an order in a proceeding before it, and the order
is inter- partes, its validity cannot be challenged by invoking the
jurisdiction of this Court under Art.
32, though the said order may affect the aggrieved party's
fundamental rights. His whole argument before us has been that the
impugned order affects the fundamental rights of a stranger to the
proceeding before the Court; and that, he contends, justifies the
petitioners in moving this Court under Artc. 32. It is necessary to
examine the validity of this argument.
The question before the Supreme Court was thus as to whether, even
at the instance of a stranger to the earlier proceedings, the earlier
order could be challenged by means of a writ petition under Article
32. One of the questions that had to be considered by the Court was
whether the judicial order passed by the learned judge of the High
Court was amenable to be writ jurisdiction of the Court under Article
32. On this question, the judges reacted differently:
(i) Gajendragadkar, CJ and Wanchoo, Mudholkar, Sikri and
Ramaswamy, JJ. had this to say:
"The High Court is a superior Court of Record and it is for
it to consider whether any matter falls within its jurisdiction 150
Or not. The order is a judicial order and if it is erroneous, a
person aggrieved by it, though a stranger, could move this Court
under Article 136 and the order can be corrected in appeal but the
question about the existence of the said jurisdiction as well as the
validity or the propriety of the order cannot be raised in writ
proceedings under article 32.', (ii) Sarkar J. also concurred in the
view that this Court had no power to issue a certiorari to the High
Court.
He observed:
"I confess the question is of some haziness. That haziness
arises because the courts in our country which have been given the
power to issue the writ are not fully analogous to the English courts
having that power. We have to seek a way out for ourselves. Having
given the matter my best consideration, I venture to think that it
was not contemplated that a High Court is an inferior court even
though it is a court of limited jurisdiction. The Constitution gave
power to the High Court to issue the writ. In England, an inferior
court could never issue the writ. I think it would be abhorrent to
the principle of certiorari if a Court which can itself issue the
writ is to be made subject to be corrected by a writ issued by
another court. When a court has the power to issue the writ, it is
not according to the fundamental principles of certiorari, an
inferior court or a court of limited jurisdiction.
It does not cease to be so because another Court to which appeals
from it lie has also the power to issue the writ. That should furnish
strong justification for saying that the Constitution did not
contemplate the High Courts to be inferior courts so that their
decisions would be liable to be quashed by writs issued by the
Supreme Court which also had been given power to issue the writs. Nor
do I think that the cause of justice will in any manner be affected
if a High Court is not made amenable to correct by this Court by the
issue of the writ. In my opinion, therefore, this Court has not power
to issue a certiorari to a High Court." (iii) Bachawat J. held:
"The High Court has jurisdiction to decide if it could
restrain the publication of any document or information relating to
the trial of a pending suit or concerning which the 151 suit is
brought, if it erroneously assume a jurisdiction not vested in it,
its decision may be set aside in appropriate proceedings but the
decision is not open to attack under Article 32 on the ground that it
infringes the fundamental right under Article 19(1)(a). If a stranger
is prejudiced by an order forbidding the publication of the report of
any proceeding, his proper course is only to apply to the Court tn
lift the ban " (iv) Justice Shah thought that, in principle, a
writ petition could perhaps be filed to challenge an order of a High
Court on the ground that it violated the fundamental rights of the
petitioner under Articles 20, 21 and 22 but he left the question
open. He, however, concluded that an order of the nature in issue
before the Court could not be said to infringe Article 19.
38. Hidayatullah J., as His Lordship then was, however, dissented.
He observed:
"Even assuming the impugned order means a temporary
suppression of the evidence of the witness, the trial Judge had no
jurisdiction to pass the order. As he passed no recorded order, the
appropriate remedy (in fact the only effective remedy) is to seek to
quash the order by a writ under Article 32.
There may be action by a Judge which may offend the fundamental
rights under articles 14, 15, 19, 20, 21 and 22 and an appeal to this
Court will not only be practicable but will also be an ineffective
remedy and this Court can issue a writ to the High Court to quash its
order under Article 32 of the Constitution. Since there is no
exception in Article 32 in respect of the High Courts there is a
presumption that the High Courts are not excluded. Even with the
enactment of Article 226, the power which is conferred on the High
Court is not in every sense a coordinate power and the implication of
reading articles 32, 136 and 226 together is that there is no sharing
of the powers to issue the prerogative writs possessed by this Court.
Under the total scheme of the Constitution, the subordination of the
High Courts to the Supreme Court is not only evident but is logical."
His Lordship proceeded to meet an objection that such a course might
152 cast a slur on the High Courts or open the floodgates of
litigation. He observed:
"Article 32 is concerned with Fundamental Rights and
Fundamental Rights only. It is not concerned with breaches of law
which do not involve fundamental rights directly. The ordinary writs
of certiorari, mandamus and prohibition can only issue by enforcement
of Fundamental Rights. A clear cut case of breach of Fundamental
Right alone can be the basis for the exercise of this power. I have
already given examples of actions of courts and judges which are not
instances of wrong judicial orders capable of being brought before
this court only by appeal but breaches of Fundamental Rights clear
and simple. Denial of equality as for example by excluding members of
a particular party or of a particular community from the public court
room in a public hearing without any fault, when others are allowed
to stay on would be a case of breach of fundamental right of equal
protection given by this Constitution. Must an affected person in
such a case ask the Judge to write down his order, so that he may
appeal against it? or is he expected to ask for special leave from
this Court? If a High Court judge in England acted improperly, there
may be no remedy because of the limitations on the rights of the
subject against the Crown. But in such circumstances in England the
hearing is considered vitiated and the decision voidable. This need
not arise here. The High Court in our country in similar
circumstances is not immune because there is a remedy to move this
court for a writ against discriminatory treatment and this Court
should not in a suitable case shirk to issue a writ to a High Court
Judge, who ignores the fundamental rights and his obligations under
the Constitution. Other cases can easily be imagined under Article
14, 15, 19, 20, 21 and 22 of the Constitution, in which there may be
action by a Judge which may offend the fundamental rights and in
which an appeal to this Court will not only be not practicable but
also quite an ineffective remedy.
We need not be dismayed that the view I take means a slur on the
High Courts or that this Court will be flooded with petitions under
Article 32 of the Constitution. Although the High Courts possess a
power to interfere by way of high 153 prerogative writs of
certiorari, mandamus and prohibition, such powers have not been
invoked against the normal and routine work of subordinate courts and
tribunals. The reason is that people understand the difference
between an approach to the High Court by way of appeals etc. and
approach for the purpose of asking for writs under Article 226. Nor
have the High Courts spread a Procrustean bed for high prerogative
writs for all actions to lie. Decisions of the courts have been
subjected to statutory appeals and revisions but the losing side has
not charged the Judge with a breach of fundamental rights because he
ordered attachment of property belonging to a stranger to the
litigation or by his order affected rights of the parties or even
strangers. This is because the people understand the difference
between normal proceedings of a civil nature and proceedings in which
there is a breach of fundamental rights. The courts acts, between
parties and even between parties and strangers, done impersonally and
objectively are challengeable under the ordinary law only. But acts
which involve the court with a fundamental right are quite
different." One more passage from the judgment needs to be
quoted.
Observed the learned Judge:
"I may dispose of a few results which it was suggested, might
flow from my view that this Court can issue a high prerogative writ
to the High Court for enforcement of fundamental rights. It was
suggested that the High Courts might issue writs to this Court and to
other High Courts and one Judge or Bench in the High Court and the
Supreme Court might issue a writ to another judge or Bench in the
same Court. This is an erroneous assumption. To begin with High
Courts cannot issue a writ to the Supreme Court because the writ goes
down and not up. Similarly, a High Court cannot issue a writ to
another High Court. The writ does not go to a court placed on an
equal footing in the matter of jurisdiction XX XX XX I must hold that
this English practice of not issuing writs in the same court is in
the very nature of things. One High Court will thus not be able to
issue a writ to another High 154 Court nor even to a court exercising
the powers of the High Court. In so far as this Court is concerned,
the argument that one Bench or one Judge might issue a writ to
another Bench or Judge, need hardly be considered. My opinion gives
no support to such a view and I hope I have said nothing to give
countenance to it. These are imaginary fears which have no reality
either in law or in fact."
39. I have set out at length portions from the judgment of
Hidayatullah, J. as Shri Rao placed considerable reliance on it. From
the above extracts, it will be seen that the majority of the Court
was clearly of opinion that an order of a High Court cannot be
challenged by way of a writ petition under Article 32 of the
Constitution on the ground that it violates the fundamental rights,
not even at the instance of a person who was not at all a party to
the proceedings in which the earlier order was passed. Even
Hidayatullah, J. has clearly expressed the view that, though a writ
of certiorari might issue to quash the order of a High Court in
appropriate case, it cannot lie from a Bench of one court to another
Bench of the same High Court. Subba Rao, C.J. has also made an
observation to like effect in regard to High Court Benches inter se
in Ghulam Sarwar v.
Union, [1967] 2 S.C.R. 271. The decision in Prem Chand Garg, seems
to indicate to the contrary. But it is clearly distinguishable and
has been distinguished by the nine judge Bench in Mirajkar. The
observations of Gujendragadkar, C.J.
(at p. 766), and Sarkar, J. (at p. 780), be seen in this context.
In that case, it is true that the order passed by the Court directing
the appellant to deposit security was also quashed but that was a
purely consequential order which followed on the well-founded
challenge to the validity of the rule. Hidayatullah, J. also agreed
that this was so and explained that the judicial decision which was
based on the rule was only revised. (p.790).
40. Sri Rao also referred to Sadhanatham v.
Arunachalam, [1980] 2 S.C.R. 873. In that case, the petitioner was
acquitted by the High Court, in appeal, of charges under section 302
and 148 of the Indian Penal Code.
The brother of the deceased, not the State or the informant,
petitioned this court under Article 136 of the Constitution for
special leave to appeal against the acquittal. Leave was granted and
his appeal was eventually allowed by the High Court. The judgment of
the High Court was set aside and the conviction and sentence imposed
by the trial court under section 302 was upheld by the Supreme Court
in his earlier decision reported in [1979] 3 S.C.R. 482. Thereupon,
the petitioner filed a writ petition under Article 32 of the
Constitution, 155 challenging the validity of the earlier order of
this Court.
Eventually, the petition was dismissed on the merits of the case.
However, learned counsel for the appellant strongly relied on the
fact that in this case a Bench of five judges of this Court
entertained a petition under Article 32 to reconsider a decision
passed by it in an appeal before the Court. He submitted that it was
inconceivable that it did not occur to the learned judges who decided
the case that, after Mirajkar, a writ petition under Article 32 was
not at all entertainable. He, therefore, relied upon this judgment as
supporting his proposition that in an appropriate case this court can
entertain a petition under Article 32 and review an earlier decision
of this court passed on an appeal or on a writ petition or otherwise.
This decision, one is constrained to remark, is of no direct
assistance to the appellant. It is no authority for the proposition
that an earlier order of the court could be quashed on the ground
that it offends the Fundamental Right. As the petition was eventually
dismissed on the merits, it was not necessary for the court to
consider whether, if they had come to the conclusion that the earlier
order was incorrect or invalid, they would have interfered therewith
on the writ petition filed by the petitioner.
41. Two more decisions referred to on behalf of the appellant may
be touched upon here. The first was the decision of this Court in
Attorney-General v. Lachma Devi, AIR 1986 S.C. 467. In that case the
High Court had passed an order that certain persons found guilty of
murder should be hanged in public. This order was challenged by a
writ petition filed under article 32 by the Attorney-General of
India, on the ground that it violated Article 21 of the Constitution.
This petition was allowed by this Court. The second decision on which
reliance was placed is that in Sukhdas v. Union Territory, [1986] 2
S.C.C. 401. In that case the petitioner, accused of a criminal
offence had not been provided with legal assistance by the court. The
Supreme Court pointed out that this was a constitutional lapse on the
part of the court and that the conviction on the face of the record
suffered from a fatal infirmity.
These decisions do not carry the petitioner any further.
Sukhdas was a decision on an appeal and Lachma Devi does not go
beyond the views expressed by Hidayatullah, J. and Shah, J. in
Mirajkar.
42. On a survey of these decisions, it appears to me that Prem
Chand Garg cannot be treated as an authority for the proposition that
an earlier order of this Court could be quashed by the issue of a
writ on the ground that it violated the fundamental rights. Mirajkar
clearly precludes such a course. It is, therefore, not possible to
accept the 156 appellant's plea that the direction dated 16.2.1984
should be quashed on the grounds put forward by the petitioner.
Inherent power to declare orders to be null and void
43. The next line of argument of learned counsel for the appellant
is that the order dated 16.2.1984, in so far as it contained the
impugned direction, was a complete nullity. Being an order without
jurisdiction, it could be ignored by the person affected or
challenged by him at any stage of the proceedings before any Court,
particularly in a criminal case, vide Dhirendra Kumar v.
Superintendent, [1955] 1 S.C.R. 224. Counsel also relied on the
following observations made in Kiran Singh v . Chaman Paswan, [AIR
1955 S.C.R. 117.] "The answer to these contentions must depend
on what the position in law is when a Court entertains a suit or an
appeal over which it has no jurisdiction, and what the effect of
Section 11 of the Suits Valuation Act is on that position. It is a
fundamental princple well established that a decree passed by a Court
without jurisdiction is a nullity, and that its invalidity could be
set up whenever and wherever it is sought to be enforced or relied
upon, even at the stage of execution and even in collateral
proceedings. A defect of jurisdiction, whether it is pecuniary or
territorial, or whether it is in respect of the subject matter of the
action, strikes at the very authority of the Court to pass any
decree, and such a defect cannot be cured even by consent of parties.
If the question now under consideration fell to be determined only on
the application of general principles governing the matter, there can
be no doubt that the District Court of Monghyr was coram non judice,
and that its judgments and decree would be nullities.
(emphasis added) He also extensively quoted from the dicta of this
Court in M. L. Sethi v. R.P. Kapur, [1973] 1 S.C.R. 697, where after
setting out the speeches of Lord Reid and Lord Pearce in Anisminic
Ltd. v. Foreign Compensation Commissioner, [1969] 2 A.C. 147 this
Court observed:
"The dicta of the majority of the House of Lords in the above
case would show the extent to which 'lack' and 'excess' of
jurisdiction have been assimilated or, in other words, the extent to
which we have moved away from the 157 traditional concept of
"jurisdiction". The effect of the dicta in that case is to
reduce the difference between jurisdictional error and error of law
within jurisdiction almost to vanishing point. The practical effect
of the decision is that any error of law can be reckoned as
jurisdictional. This comes perilously close to saying that there is
jurisdiction if the decision is right in law but none if it is wrong.
Almost any misconstruction of a statute can be represented as "basing
their decision on a matter with which they have no right to deal",
"impose an unwarranted condition" or "addressing
themselves to a wrong question." The majority opinion in the
case leaves a Court or Tribunal with virtually no margin of legal
error. Whether there is excess or jurisdiction or merely error within
jurisdiction can be determined only by construing the empowering
statute, which will give little guidance. It is really a question of
how much latitude the Court is prepared to allow. In the end it can
only be a value judgment (see R.W.R.
Wade, "Constitutional and Administrative Aspects of the
Anisintic case", Law Quarterly Review, Vo.
85, 1969 p. 198). Why is it that a wrong decision on a question of
limitation or res judicata was treated as a jurisdictional error and
liable to be interfered with in revision? It is a bit difficult to
understand how an erroneous decision on a question of limitation or
res judicata could oust the jurisdiction of the Court in the
primitive sense of the term and render the decision or a decree
embodying the decision a nullity liable to collateral attack. The
reason can only be that the error of law was considered as vital by
the Court.
And there is no yardstick to determine the magnitude of the error
other than the opinion of this Court." He also referred to Badri
Prasad v. Nagarmal, [1959] 1 Supp.
S.C.R. 769 which followed the clear law laid down in Surajmul
Nagarmul v. Trilon Insurance Co. Ltd., [1924] L.R.
52 I.A. 126, Balai Chandra Hazra v. Shewdhari Jadav, [1978] 3
S.C.R. 147 which followed Ledgard v. Bull, (L.R. 13 I.A.
134; Meenakshi Naidu v. Subramaniya Sastri, L.R. 14 I.A. 140 and
Sukhrani v. Hari Shankar, [1979] 3 S.C.R 671. Sri Rao, citing a
reference from Halsbury's Laws of England (4th Edition) Vol. X, para
713, pages 321-2, contended that the High Court's jurisdiction
clearly stood excluded by s. 7(1) of the 1952 Act and, hence, the
direction of the Supreme Court was also one without jurisdiction.
158
44. In dealing with this contention, one important aspect of the
concept of jurisdiction has to be borne in mind. As pointed out by
Mathew J. in Kapur v. Sethi, (supra), the word "jurisdiction is
a verbal coat of many colours.". It is used in a wide and broad
sense while dealing with administrative or quasi-judicial tribunals
and subordinate courts over which the superior courts exercise a
power of judicial review and superintendence. Then it is only a
question of "how much latitude the court is prepared to allow"
and "there is no yardstick to determine the magnitude of the
error other than the opinion of the court." But the position is
different with superior courts with unlimited jurisdiction. These are
always presumed to act with jurisdiction and unless it is clearly
shown that any particular order is patently one which could not, on
any conceivable view of its jurisdiction, have been passed by such
court, such an order can neither be ignored nor even recalled,
annulled, revoked or set aside in subsequent proceedings by the same
court. This distinction is well brought out in the speeches of Lord
Diplock, Lord Edmund- Devier and Lord Scarman in Re. Racal
Communications Ltd., [1980] 2 A.E.R. 634. In the interests of
brevity, I resist the temptation to quote extracts from the speeches
here.
45. In the present case, the order passed is not one of patent
lack of jurisdiction, as I shall explain later.
Though I have come to the conclusion, on considering the arguments
addressed now before us, that the direction in the order dated
16.2.1984 cannot be justified by reference to Article 142 of the
Constitution or S. 407 of the 1973 Cr.
P.C., that is not an incontrovertible position. It was possible
for another court to give a wider interpretation to these provisions
and come to the conclusion that such an order could be made under
those provisions. If this Court had discussed the relevant provisions
and specifically expressed such a conclusion, it could not have been
modified in subsequent proceedings by this Bench merely because we
are inclined to hold differently. The mere fact that the direction
was given, without an elaborate discussion, cannot render it
vulnerable to such review.
46. Shri P.P. Rao then placed considerable reliance on the
observations of the Privy Council in Isaacs v.
Robertson, [1984] 3 A.E.R.140 an appeal from a decision of the
Court of Appeal of St. Vincent and the Grenadines.
Briefly the facts were that Robertson had obtained an interim
injunction against Isaacs and two others on 31.5.1979 which the
latter refused to obey. The respondents motion for committal of the
appellant for contempt was dismissed by the High Court of Saint
Vincent. The Court of Appeal allowed the respondents 159 application;
the appellants were found to be in contempt and also asked to pay
respondents costs. However, no penalty was inflicted because the
appellant would have been entitled to succeed on an application for
setting aside the injunction, has he filed one. The main attack by
the appellant on the Court of Appeal's judgment was based on the
contention that, as a consequence of the operation of certain rules
of the Supreme Court of St. Vincent, the interlocutory injunction
granted by the High Court was a nullity: so disobedience to it could
not constitute a contempt of court. Lord Diplock observed:
Glosgow J. accepted this contention, the Court of Appeal rejected
it, in their Lordships' view correctly, on the short and well
established ground that an order made by a court of unlimited
jurisdiction, such as the High Court of Saint Vincent must be obeyed
unless and until it has been set aside by the court. For this
proposition Robotham AJA cited the passage in the judgment of Romer
L.J. in Hadkinson v. Hadkinson, [1952] 2 All. E.R. 567 at 569, (1952)
P. 285 at 288.
It is the plain and unqualified obligation of every person
against, or in respect of whom an order is made by a Court of
competent jurisdiction to obey it unless and until that order is
discharged. The uncompromising nature of this obligation is shown by
the fact that it extends even to cases where the person affected by
an order believes it to be irregular or even void.
Lord Cotteniiam, Leven to cases where the person affected by an
order believes it to be irregular or even void. Lord Cotteniiam, L.C.
said in Chuck v. Cremer, [1946] 1 Coop Temp Cott 338 at 342, 47
E.R.884 at 855: "A party, who knows of an order, whether null or
valid, regular or irregular, cannot be permitted to disobey it .. It
would be most dangerous to hold that the suitors, or their
solicitors, could themselves judge whether an order was null or
valid-whether it was regular or irregular. That they should come to
the court and not take upon themselves to determine such a question.
That the course of a party knowing of an order, which was null or
irregular, and who might be affected by it, was plain. He should
apply to the Court that it might be discharged. As long as it existed
it must not be obeyed." Such being the nature of this
obligation, two consequences will, in general, follow from its
breach. The first is that anyone who dis- 160 obeys an order of the
court.....is in contempt and may be published by committal or
attachment or otherwise.
It is in their Lordships view, says all that needs to be said on
this topic. It is not itself sufficient reason for dismissing this
appeal.
Having said this, the learned Law Lord proceeded to say:
"The cases that are referred to in these dicta do not support
the proposition that there is any category of orders of a court of
unlimited jurisdiction of this kind, what they do support is the
quite different proposition that there is a category of orders of
such a court which a person affected by the order is entitled to
apply to have set aside ex debito justitiae in the exercise of the
inherent jurisdiction of the court without his needing to have
recourse to the rules that deals expressly with proceedings to set
aside orders for irregularity and give to the Judge a discretion as
to the order he will make. The judges in the case that have drawn the
distinction between the two types of orders have cautiously refrained
from seeking to lay down a comprehensive definition of defects that
bring an order in the category that attracts ex debito justitiae the
right to have it set aside save that specifically it includes orders
that have been obtained in breach of rules of natural justice. The
contrasting legal concepts of voidness and voidability form part of
the English law of contract. They are inapplicable to orders made by
a court of unlimited jurisdiction in the course of contentions
litigation. Such an order is either irregular or regular. If it is
irregular it can be set aside by the court that made it on
application to that court, if it is regular it can only be set aside
by an appellate court on appeal if there is one to which an appeal
lies." Sri Rao strongly relied on this passage and, modifying
his earlier, somewhat extreme, contention that the direction given on
16.2.1984 being a nullity and without jurisdiction could be ignored
by all concerned-even by the trial judge-he contended, on the
strength of these observations, that he was at least entitled ex
debito justitiae to come to this Court and request the court, in the
interests of justice, to set aside the earlier order "without
his needing to have recourse to the rules that deal expressly with
proceedings to set aside orders for irre 161 gularity", if only
on the ground that the order had been made in breach of the
principles of natural justice.
Violation of the principles of natural justice, he contended,
renders the direction a nullity without any further proof of
prejudice (see Kapur v. Jagmohan, [1981] 1 S.C.R. 746 at 766) .
47. Learned counsel contended, in this context, that the fact the
direction had been given in the earlier proceedings in this very case
need not stand in the way of our giving relief, if we are really
satisfied that the direction had been issued per incuriam, without
complying with the principles of natural justice and purported to
confer a jurisdiction on the High Court which it did not possess. In
this context he relied on certain decisions holding that an erroneous
decision on a point of jurisdiction will not constitute res judicata.
In Mathura Prasad v. Dossibai, [1970] 3 S.C.R. 830, this Court
observed:
"A question relating to the jurisdiction of a Court cannot be
deemed to have been finally determined by an erroneous decision of
the Court.
If by an erroneous interpretation of the statute, the Court holds
that it has no jurisdiction, the question would not, in our judgment,
operate as res judicata. Similarly, by an erroneous decision, if the
Court assumes jurisdiction which it does not possess under the
statute, the question cannot operate as res judicata between the same
parties, whether the cause of action in the subsequent litigation is
the same or otherwise. It is true that in determining the application
of the rule of res judicata the Court is not concerned with the
correctness or otherwise of the earlier judgment.
The matter in issue, if it is one purely of fact, decided in the
earlier proceeding by a competent court must in a subsequent
litigation between the same parties be regarded as finally decided
and cannot be re-opened. A mixed question of law and fact determined
in the earlier proceeding between the same parties may not, for the
same reason, be questioned in a subsequent proceeding between the
same parties.
0 xxxxx xxxxx Where, however the question is one purely of law and
it relates to the jurisdiction of the Court or a decision of the
court sanctioning something which is illegal, by resor to the rule of
res judicata a party affected by the decision will not 162 be
precluded from challenging the validity of that order under the rule
of res judicata, for a rule of procedure cannot supersede the law of
the land.
" Counsel also relied on the decision of this Court in Ghulam
Sarwar v. Union of India, [1956] 2 S.C.C.271, where it was held that
the principle of constructive res judicata was not applicable to
habeas corpus proceedings. He also referred to the observations of
D.A. Desai J. in Soni Vrijlal Jethalal v. Soni Jadavji Govindji, AIR
1972 Guj. 148 that no act of the court or irregularity can come in
the way of justice being done and one of the highest and the first
duty of all courts is to take care that the act of the court does no
injury to the suitors. He also made reference to the maxim that an
act of, or mistake on the part, of a court shall cause prejudice to
no one, vide: Jang Singh v. Brij Lal, [1964] 2 S.C.R. 145 at p. 159.
Relying on these decisions and passages from various treatises which
I do not consider it necessary to set out in in extenso here, Sri Rao
contended that this court should not consider itself bound by the
earlier order of the Bench or any kind of technicality where the
liberty of an individual and the rights guaranteed to him under
Articles 14 and 21 of the Constitution are in issue. It is urged
that, if this Court agrees with him that the direction dated
16.2.1984 was an illegal one, this Court should not hesitate nay, it
should hasten-to set aside the said order and repair the injustice
done to the appellant without further delay. On the other hand, Sri
Jethmalani vehemently urged that the present attempt to have the
entire matter reopened constitutes a gross abuse of the process of
court, that it is well settled that the principle of res judicata is
also available in criminal matters (vide Bhagat Ram v. State, [1972]
2 S.C.C.
466 and State v. Tara Chand, [1973] S.C.c. Crl. 774) that in the
United States the principle of res judicata governs even
jurisdictional issues and that "the slightest hospitality to the
accused's pleas will lead to a grave miscarriage of justice and set
up a precedent perilous to public interest.
48. I have given careful thought to these contentions.
The appellant's counsel has relied to a considerable extent on the
maxim "actus curiae neminem gravabit" for contending that
it is not only within the power, but a duty as well, of this Court to
correct its own mistakes in order to see that no party is prejudiced
by a mistake of the Court. I am not persuaded that the earlier
decision could be reviewed on the application of the said maxim. I
share the view of my learned brother Venkatachaliah, J. that this
maxim has very limited application and that it cannot be availed of
to correct or review specific conclusions 163 arrived at in a
judicial decision. My. brother Venkatachaliah, J. has further taken
the view that this Court cannot exercise any inherent powers for
setting right any injustice that may have been caused as a result of
an earlier order of the Court. While alive to the consideration that
"the highest court in the land should not, by technicalities of
procedure, forge fetters on its own feet and disable itself in cases
of serious miscarriages of justice", he has, nevertheless, come
to the conclusion that "the remedy of the appellant, if any, is
by recourse to article 137 and nowhere else." It is at this
point that I would record a dissent from his opinion. In my view, the
decisions cited do indicate that situations can and do arise where
this Court may be constrained to recall or modify an order which has
been passed by it earlier and that when ex facie there is something
radically wrong with the earlier order, this Court may have to
exercise its plenary and inherent powers to recall the earlier order
without considering itself bound by the nice technicalities of the
procedure for getting this done. Where a mistake is committed by a
subordinate court or a High Court, there are ample powers in this
Court to remedy the situation. But where the mistake is in an earlier
order of this Court, there is no way of having it corrected except by
approaching this Court. Sometimes, the remedy sought can be brought
within the four comers of the procedural law in which event there can
be no hurdle in the way of achieving the desired result. But the mere
fact that, for some reason, the conventional remedies are not
available should not, in my view, render this Court powerless to give
relief. As pointed out by Lord Diplock in Isaac v. Robertson, [ 19841
3 A.E.R.
140, it may not be possible or prudent to lay down a comprehensive
list of defects that will attract the ex debito justitiae relief.
Suffice it to say that the court can grant relief where there is some
manifest illegality or want of jurisdiction in the earlier order or
some palpable injustice is shown to have resulted. Such a power can
be traced either to article 142 of the Constitution or to the powers
inherent in this Court as the apex court and the guardian of the
Constitution.
49. It is, however, indisputable that such power has to be
exercised in the "rarest of rare" cases. As rightly pointed
out by Sri Jethmalani, there is great need for judicial discipline of
the highest order in exercising such a power, as any laxity in this
regard may not only impair the eminence, dignity and integrity of
this Court but may also lead to chaotic consequences. Nothing should
be done to create an impression that this Court can be easily
persuaded to alter its views on any matter and that a larger Bench of
the Court will not only be able to reverse the precedential effect of
an earlier ruling but may also be 164 inclined to go back on it and
render it ineffective in its application and binding nature even in
regard to subsequent proceedings in the same case. In Bengal Immunity
Company Limited v. The State of Bihar and Ors., [1955] 2 S.C.R. 603,
this Court held that it had the power, in appropriate cases, to
reconsider a previous decision given by it. While concurring in this
conclusion, Venkatarama Ayyar, J. sounded a note of warning of
consequences which is more germane in the present context:
"The question then arises as to the principles on which and
the limits within which this power should be exercised. It is of
course not possible to enumerate them exhaustively, nor is it even
desirable that they should not crystallised into rigid and inflexible
rules. But one principle stands out prominently above the rest, and
that is that in general, there should be finality in the decisions of
the highest courts in the land, and that is for the benefit and
protection of the public. In this connection, it is necessary to bear
in mind that next to legislative enactments, it is decisions of
Courts that form the most important source of law. It is on the faith
of decisions that rights are acquired and obligations incurred, and
States and subjects alike shape their course of action. It must
greatly impair the value of the decisions of this Court, if the
notion came to be entertained that there was nothing certain or final
about them, which must be the consequence if the points decided
therein came to be re-considered on the merits every time they were
raised. It should be noted that though the Privy Council has
repeatedly declared that it has the power to reconsider its
decisions, in fact, no instance has been quoted in which it did
actually reverse its previous decision except in ecclesiastical
cases. If that is the correct position, then the power to reconsider
is one which should be exercised very sparingly and only in
exceptiona1 circumstances, such as when a material provision of law
had been overlooked, or where a fundamental assumption on which the
decision is base(1 turns out to be mistaken. In the present case, it
is not suggested that in deciding the question of law as they did in
The State of Bombay v. The United Motors (India) Ltd., [1953] S.C.R.
l069 the learned Judges ignored any material provisions of law, or
were under any misapprehension as to a matter fundamental to the
decision. The arguments for the appellant before us were in fact only
a repetition of the 165 very contentions which were urged before the
learned Judges and negatived by them. The question then resolves
itself to this. Can we differ from a previous decision of this Court,
because a view contrary to the one taken therein appears to be
preferable? I would unhesitatingly answer it in the negative, not
because the view previously taken must necessarily be infallible but
because it is important in public interest that the law declared
should be certain and final rather than that it should be declared in
one sense. Or the other. That, I conceive, in the reason behind
article 141. There are questions of law on which it is not possible
to avoid difference of opinion, and the present case is itself a
signal example of it. The object of article 141 is that the decisions
of this Court on these questions should settle the controversy, and
that they should be followed as law by all the Courts, and if they
are allowed to be reopened because a different view appears to be the
better one, then the very purpose with which article 141 has been
enacted will be defeated, and the prospect will have been opened of
litigants subjecting our decisions to a continuous process of attack
before successive Benches in the hope that with changes in the
personnel of the Court which time must inevitably bring, a different
view might find acceptance. I can imagine nothing more damaging to
the prestige of this Court or to the value of its pronouncements. In
James v. Commonwealth, 18 C.L.R.54, it was observed that a question
settled by a previous decision should not be allowed to be reopened
"upon a mere suggestion that some or all of the Members of the
later Court might arrive at a different conclusion if the matter was
res integra. Otherwise, there would be grave danger of want of
continuity in the interpretation of the law" (per Griffiths,
C.J. at p. 58). It is for this reason that article 141 invests
decisions of this Court with special authority, but the weight of
that authority can only be what we ourselves give to it." Even
in the context of a power of review, properly so called, Ven-
kataramiah, J. had this to say in Sheonandan Paswan v. State of Bihar
& Ors., [1987] 1 S.C.C. 288:
"The review petition was admitted after the appeal had been
dismissed only because Nandini Satpathy cases, (1987 1 S.C.C.269 and
1987 lS.C.C.279) had been subsequently 166 referred to a larger bench
to review the earlier decisions. When the earlier decisions are
allowed to remain intact, there is no justification to reverse the
decision of this Court by which the appeal had already been
dismissed. There is no warrant for this extraordinary procedure to be
adopted in this case. The reversal of the earlier judgment of this
Court by this process strikes at the finally of judgments of this
Court and would amount to the abuse of the power of review vested in
this Court, particularly in a criminal case. It may be noted that no
other court in the country has been given the power of review in
criminal cases. I am of the view that the majority judgment of
Baharul Islam and R.B. Misra, JJ. should remain undisturbed. This
case cannot be converted into an apeal against the earlier decision
of this Court " The attempt of the appellant here is more
far-reaching. He seeks not the mere upsetting of a precedent of this
Court nor the upsetting of a decision of a High Court or this Court
in accordance with the normal procedure. What he wants from us is a
declaration that an order passed by a five judge Bench is wrong and
that it should, in effect, be annulled by us. This should not be
done, in my view, unless the earlier order is vitiated by a patent
lack of jurisdiction or has resulted in grave injustice or has
clearly abridged the fundamental rights of the appellant.
The question that arises is whether the present case can be
brought within the narrow range of exceptions which calls for such
interference. I am inclined to think that it does not.
50. I have indicated earlier, while discussing the contentions
urged by Shri P.P. Rao that some of them were plausible and, that, if
I were asked to answer these questions posed by counsel for the first
time, I might agree with his answers. But I have also indicated that,
in my view, they do not constitute the only way of answering the
questions posed by the learned counsel. Thus, to the question: did
this Court have the jurisdiction to issue the impugned direction, a
plausible answer could well be that it did, if one remembers that one
of the transferred cases before this Court was the revision petition
before the Bombay High Court in which a transfer of the case to the
High Court has been asked for and if one gives a wide interpretation
to the provisions of Article 142 of the Constitution. On the question
whether this Court could transfer the case to a High Court Judge, who
was not a Special Judge, a court could certainly accept the view
urged by Sri Ram Jethmalani that s. 7(1) of the 1952 Act should not
be so construed 167 as to exclude the application of the procedural
provisions of the Cr.P.C. in preference to the view that has found
favour with me. Though the order dated 16.2.1984 contains no
reference to, or discussion of, S. 407 Cr.P.C., this line of thinking
of the judges who issued the direction does surface in their
observations in their decision of even date rendered on the
complainant's special leave petition, [1984] 2 S.C.R. 914 at page
943-4.I have already pointed out that, if the transfer is referable
to s. 407 of the 1973 Cr.P.C., it cannot be impugned as offending
Article 14 and 21 of the Constitution. The mere fact that the judges
did not discuss at length the facts or the provisions of s. 407
Cr.P.C. vis-a-vis the 1952 Act or give a reasoned order as to why
they thought that the trial should be in the High Court itself cannot
render their direction susceptible to a charge of discrimination. A
view can certainly be taken that the mere entrustment of this case to
the High Court for trial does not perpetrate manifest or grave
injustice. On the other hand, prima facie, it is something beneficial
to the accused and equitable in the interest of justice. Such trial
by the High Court, in the first instance, will be the rule in cases
where a criminal trial is withdrawn to the High Court under s. 407 of
the Cr.P.C. Or where a High Court judge has been constituted as a
Special Judge either under the 1952 Act or some other statute. The
absence of an appeal to the High Court with a right of seeking for
further leave to appeal to the Supreme Court may be considered
outweighed by the consideration that the original trial will be in
the High Court (as in Sessions cases of old, in the Presidency Towns)
with a statutory right of appeal to the Supreme Court under s. 374 of
the Cr.P.C. In this situation, it is difficult to say that the
direction issued by this Court in the impugned order is based on a
view which is manifestly incorrect, palpably absurd or patently
without jurisdiction.
Whether it will be considered right or wrong by a different Bench
having a second-look at the issues is a totally different thing. It
will be agreed on all hands that it will not behove the prestige and
glory of this Court as envisaged under the Constitution if earlier
decisions are revised or recalled solely because a later Bench takes
a different view of the issues involved. Granting that the power of
review is available, it is one to be sparingly exercised only in
extraordinary or emergent situations when there can be no two opinion
about the error or lack of jurisdiction in the earlier order and
there are adequate reasons to invoke a resort to an unconventional
method of recalling or revoking the same. In my opinion, such a
situation is not present here.
51. The only question that has been bothering me is that the
appellant had been given no chance of being heard before the 168
impugned direction was given and one cannot say whether the Bench A
would have acted in the same way even if he had been given such
opportunity. However, in the circumstances of the case, I have come
to the conclusion that this is not a fit case to interfere with the
earlier order on that ground. It is true that the audi altarem partem
rule is a basic requirement of the rule of law. But judicial
decisions also show that the degree of compliance with this rule and
the extent of consequences flowing from failure to do so will vary
from case to case. Krishna Iyer, J. Observed thus in Nawabkhan
Abbaskhan v. State, [1974]3 S.C.R. 4/7 thus:
"an order which infringed a fundamental freedom passed in
violation of the audi alteram partem rule was a nullity. A
determination is no determination if it is contrary to the
constitutional mandate of Art. 19. On this footing the externment
order was of no effect and its violation was not offence. Any order
made without hearing the party affected is void and ineffectual to
bind parties from the beginng if the injury is to a constitutionally
guaranteed right. May be that in ordinary legislation or at common
law a Tribunal having jurisdiction and failing to-hear the parties
may commit an illegality which may render the proceedings voidable
when a direct attack was made thereon by way of appeal, revision or
review but nullity is the consequence of unconstitutionality and so
the order of an administrative authority charged with the duty of
complying with natural justice in the exercise of power before
restricting the fundamental right of a citizen is void ab initio and
of no legal efficacy. The duty to hear menacles his jurisdictional
exercise and any act is, in its inception, void except when performed
in accordance with the conditions laid down in regard to hearing. "
(emphasis added) So far as this case is concerned, I have indicated
earlier that the direction Of 16.2.1984 cannot be said to have
infringed the fundamental rights of the appellant or caused any
miscarriage of justice. As pointed out by Sri Jethmalani, the
appellant did know, on 16.2.84, that the judges were giving such a
direction and yet he did not protest. Perhaps he did think that being
tried by a High Court Judge would be more beneficial to him, as
indeed was likely to be. That apart, as discussed earlier, several
opportunities were available for the appellant to set this right. He
did not move his little finger to obtain a variation of this 169
direction from this Court. He is approaching the Court nearly after
two years of his trial by the learned judge in the High Court.
Volumes of testimony, we are told, have been recorded and numerous
exhibits have been admitted as evidence. Though the trial is only at
the stage of the framing charges, the trial being according to the
warrant procedure, a lot of evidence has already gone in and the
result of the conclusions of Sabyasachi Mukharji, J. would be to wipe
the slate clean. To take the entire matter back at this stage to
square no. 1 would be the very negation of the purpose of the 1952
Act to speed up all such trials and would result in more injustice
than justice from an objective point of view. As pointed out by Lord
Denning in R. v. Secretary of State for the Home Departrnent ex parte
Mughal, l 19731 3 All E.R. 796, the rules of natural justice must not
be stretched too far. They should not be allowed to be exploited as a
purely technical weapon to undo a decision which does not in reality
cause substantial injustice and which, had the party been really
aggrieved thereby, could have been set right by immediate action.
After giving my best anxious and deep thought to the pros and cons of
the situation I have come to the conclusion that this is not one of
those cases in which I would consider it appropriate to recall the
earlier direction and order a retrial of the appellant de novo before
a Special Judge. I would, therefore, dismiss the appeal.
O R D E R In view of the majority judgments the appeal is allowed;
all proceedings in this matter subsequent to the directions of this
Court on 16th February, 1984 as indicated in the judgment are set
aside and quashed. The trial shall proceed in accordance with law,
that is to say, under the Act of 1952.
N.P.V.
P. RAMACHANDRA RAO V. STATE OF KARNATAKA [2002]
INSC 206 (16 April 2002) : 20020C Cr.L.R. (SC) 497
DORAISWAMY RAJU AND ARIJIT PASAYAT JJ.
Harish N. Salve, Solicitor General,
Rajeev Sharma and P. Parmeswaran, Advocates with him for the
Appellant.
K.Ramamoorthy, Sr. Advocate, Amit Chadha, Ms.
Shobha and N.L. Ganpathi, Advocates with him for the
Respondents.
Constitution of India, 1950 - Article 21 - Right
to speedy justice in Criminal justice system implicit - However, it
does not mean, time limits can be fixed or completion of trial as
done in Raj Deo Case & Common Cause Case - Such aspects to be
considered only in the light of facts and circumstances peculiar to a
case - Similarly, pre-deciding as to which provision would apply to
the facts of the case to determine sentence without undergoing trial
in unwarranted.
Held: It was held that the decisions in the
two "Common Cause" cases and Raj Deo Sharma v. State of
Bihar JT 1998 (7) SC 1 and Raj Deo Sharma (II) v. State of Bihar JT
1999 (7) SC 317, were not correctly decided on certain aspects. It is
neither advisable nor feasible, nor judicially permissible or draw or
prescribe an outer limit for conclusion of all criminal proceedings.
The time-limits or bars of limitation prescribed in the several
directions made in the aforesaid four cases could not have been so
prescribed or drawn and, therefore, are not good law. Criminal courts
are not obliged to terminate trial of criminal proceedings merely on
account of lapse of time, as prescribed by the directions made in the
aforesaid cases. (Para 7)
As was observed in P. Ramchandra
Rao's case (supra), at the most periods of time prescribed in those
decisions can be taken by the Courts in seisin of the trial or
proceedings to act as reminder when they may be persuaded to apply to
their judicial mind to the facts and circumstances of the case before
them and determine by taking into consideration several relevant
factors as pointed in A.R. Antulay's case (supra) and decide whether
the trial or proceedings have become so inordinately delayed as to be
called oppressive and unwarranted. Such time limits cannot and will
not be treated by any court as a bar to further trial or
proceedings'and as mandatorily obliging the court to terminate the
same and acquit or discharge the accused. (Para 8)
While
considering the question of delay the court has a duty to see whether
the prolongation was on account of any delaying tactics adopted by
the accused and other relevant aspects which contributed to the
delay. Number of witnesses examined volume of documents likely to be
exhibited, natures and complexity of the offence which is under
investigation or adjudication are some of the relevant factors. There
can be no empirical formula of universal application in such matters.
Each case has to be judged in its own background and special features
if any. No generalization is possible and should be done. It has also
to be borne in mind that the criminal courts exercise available
powers such as those under Sections 309, 311 and 258 of the Cr.P.C.
to effectuate right to speedy trial. (Para 9)
Additionally
while dealing with the question as to the proper provision applicable
to the case, the Court has come to a definite finding about maximum
sentence. Normally, these aspects are to be left to be decided by the
trial court. (Para 10)
APPEAL ALLOWED CASE (S) REFERRED :-
1. Abdul Rehman Antulay and Ors. vs. R.S. Nayak and Anr.,* 1992
(1) SCC 225
2. Common Cause" A registered Society through
its Director Vs. Union of India and Ors.,* 1996 (4) SCC 33
3.
Common Cause cases and Raj Deo Sharma Vs. State of Bihar,* JT 1998
(7) S.C. 1
4. P. Ramachandra Rao Vs. State of Karnataka,* JT
2002 (4) S.C. 92
5. Raj Deo Sharma (II) Vs. State of Bihar,*
JT 1999 (7) S.C. 317
JUDGMENT
ARIJIT
PASAYAT, J.
1. Leave granted.
2. Challenge in this
appeal is to the judgment of a Division Bench of the Delhi High Court
whereby the proceedings against the respondent no.1 were quashed,
primarily on ground that there was unnecessary delay in conclusion of
the trial by court. Reliance was placed on a decision of this Court
in "Common Cause" A registered Society through its Director
Vs. Union of India and Ors. (1996) 4 SCC 33) as modified in "Common
Cause" A registered Society through its Director Vs. Union of
India and Ors. [(1996) 6 SCC 775] to hold so. A brief reference to
the factual aspects would suffice.
3. According to the
prosecution, respondent no.1 committed offences under Sections 3 and
5 of the Official Secrets Act 1923 (in short `Secrets Act') and
Section 120-B of the Indian Penal Code, 1860 (in short `IPC') read
with the aforesaid provisions. The Chief Metropolitan Magistrate by
his-order dated 16.8.1999 took cognizance and issued processes
against the accused persons including the respondent no.1 herein.
Respondent no.1 approached the High Court under Section 482 of the
Code of Criminal Procedure, 1973 (in short `Cr.P.C') for passing an
order against the cognizance taken by the Chief Metropolitan
Magistrate. The High Court quashed the proceedings, inter alia, on
the ground that there has been unnecessary delay in the proceedings.
Stand of the prosecution before the High Court was that the case is
of very serious nature and the respondent no.1, who at the relevant
time, was Adviser in the Department of Electronics, Government of
India parted with a copy of a sensitive secret document namely "User
Evaluation Trial Report on RATAC-S Battle Field Surveillance Radar
(BFSR) Phase-l", which, was being evaluated by the Army
Authorities with reference to certain specific parameter required by
the Army Authorities and the same was dispatched to an expert in
Paris, Finance through courier service, who brought it to the notice
of the police. As such the case involved offences which relate to
security of the State. A large number of documents were to be
exhibited. There was no unusual delay. But the High Court did not
accept the same. Placing reliance on a decision of this Court in
Abdul Rehman Antulay and Ors. vs. R.S. Nayak and Anr. (1992) 1 SCC
225, it was held that the right of speedy trial has been infringed.
It was noted that merely because about 100 witnesses spread all over
the India were to be examined, that cannot be a relevant ground
Justifying the delay. Maximum punishment for the alleged offence is 3
years and the respondent no.1 has suffered custody of about 2 years
in addition to agony of facing prosecution for about 12 years.
4.
Mr. Harish N. Salve, learned Solicitor General submitted that the
approach of the High Court is clearly erroneous. It cannot be said to
be a rule of universal application that whenever there is delay,
whatever be the justification for the same, the proceedings are to be
quashed. Additionally there was no material before the High Court to
come to the conclusion that the maximum sentence is 3 years and not
15 years. It was not the case of the respondent no. 1 before the High
Court that his case would fall under sub-section (3) of Section 5 of
the Secrets Act. In any event that was a matter for trial to be
determined on consideration of the materials which are to be
placed.
5. Per contra Mr.K. Ramamoorthy, learned senior
counsel for the respondent submitted that the right to speedy trial
is inbuilt in Article 21 of the Constitution of India, 1950 (in short
`the Constitution') and, therefore, the High Court had committed no
error in directing the proceedings to the quashed. According to him,
it was specifically pleaded before the High Court as to how the
alleged offence was covered by sub-section (3) of Section 5 of
Secrets Act.
6. Recently a 7-Judges Bench of this Court in P.
Ramachandra Rao Vs. State of Karnataka JT 2002 (4) SC 92 held as
under:
"No person shall be deprived of his life or his
personal liberty except according to procedure established by law -
declares Article 21 of the Constitution. `Life and liberty', the
words employed in shaping Article 21, by the founding fathers of the
Constitution, are not to be read narrowly in the sense drearily
dictated by dictionaries; they are organic terms to be construed
meaningfully. Embarking upon the interpretation thereof, feeling the
heart-throb of the Preamble, deriving strength from the Directive
Principles of state policy and alive to their constitutional
obligation, the courts have allowed Article 21 to stretch its arms as
wide as it legitimately can. The mental agony, expense and strain
which a person proceeded against in criminal law has to undergo and
which, coupled with delay, may result in impairing the capability or
ability of the accused to defend himself have persuaded the
constitutional courts of the country in holding the right to speedy
trial a manifestation of fair, just and reasonable procedure
enshrined in Article 21. Speedy trial, again, would encompass within
its sweep all its stages including investigation, inquiry, trial,
appeal, revision and re-trial - in short, everything commencing with
an accusation and expiring with the final verdict - the two being
respectively the terminus a quo and terminus ad quem - of the journey
which an accused must necessarily undertake once faced with an
implication. The constitutional philosophy propounded as right to
speedy trial has though grown in age by almost two and a half
decades, the goal sought to be achieved is yet a far -off peak.
Myriad fact-situations bearing testimony to denial of such
fundamental right to the accused persons, on account of failure on
the part of prosecuting agencies and executive to act, and their
turning an almost blind eye at securing expeditious and speedy trial
so as to satisfy the mandate of Article 21 of the Constitution have
persuaded this Court in devising solutions which go to the extent of
almost enacting, by judicial verdict bars of limitation beyond which
the trial shall not proceed and the arm of law shall lose its hold.
In its zeal to protect the right to speedy trial of an accused, can
the court devise and almost enact such bars of limitation though the
Legislature and the statutes have not chosen to do so - is a question
of far-reaching implications which has led to the constitution of
this bench of seven-judge strength."
7. It was held that
the decisions in the two "Common Cause" cases and Raj Deo
Sharma Vs. State of Bihar JT 1998 (7) SC 1 and Raj Deo Sharma (II Vs.
State of Bihar JT 1999 (7) SC 317, were not correctly decided on
certain aspects. It is neither advisable nor feasible, nor judicially
permissible or draw or prescribe an outer limit for conclusion of all
criminal proceedings. The time-limits or bars of limitation
prescribed in the several directions made in the aforesaid four cases
could not have been so prescribed or drawn and, therefore, are not
good law. Criminal courts are not obliged to terminate trial of
criminal proceedings merely on account of lapse of time, as
prescribed by the directions made in the aforesaid cases.
8.
As was observed in P. Ramchandra Rao's case (supra), at the most
periods of time prescribed in those decisions can betaken by the
Courts in seisin of the trial or proceedings to act as reminder when
they may be persuaded to apply to their judicial mind to the facts
and circumstances of the case before them and determine by taking
into consideration several relevant factors as pointed in A.R.
Antulay's case (supra) and decide whether the trial or proceedings
have become so inordinately delayed as to be called oppressive and
unwarranted. Such time limits cannot and will not be treated by any
court as a bar to further trial or proceedings and as mandatorily
obliging the court to terminate the same and acquit or discharge the
accused.
9. While considering the question of delay the court
has a duty to see whether the prolongation was on account of any
delaying tactics adopted by the accused and other relevant aspects
which contributed to the delay. Number of witnesses examined volume
of documents likely to be exhibited, natures and complexity of the
offence which is under investigation or adjudication are some of the
relevant factors. There can be no empirical formula of universal
application in such matters. Each case has to be judged in its own
background and special features if any. No generalization is possible
and should be done. It has also to be borne in mind that the criminal
courts exercise available powers such as those under Sections 309,
311 and 258 of the Cr.P.C. to effectuate right to speedy trial.
10.
These aspects have not been considered by the High Court while
quashing the proceedings. On that score the judgment under challenge
is vitiated. Additionally while dealing with the question as to the
proper provision applicable to the case, the Court has come to a
definite finding about maximum sentence. Normally, these aspects are
to be left to be decided by the trial court. In the case at hand we
find that the High Court came to the conclusion about applicability
of a particular provision. Mr. Ramamoorthy has rightly submitted that
the court can, in a given case, where factual aspects and the law
applicable are clear, come to the conclusion about the provision
applicable to the facts. But for coming to such conclusion the
factual position must be clear and no doubt should exist about the
applicability of a particular provision to the factual scenario. The
complex nature of the offence should be deterrent to the courts while
going into the question of applicability of a provision.
11.
Be that as it may, in view of the conclusion that order of the High
Court is to be quashed, we do not think it necessary to bestow our
attention to the question as to which provision is applicable to the
facts of the case.
12. According the judgment of the High
Court is quashed and the matter is remitted back to the High Court.
The High Court shall hear the matter afresh, permit the parties to
place materials which according to it will be relevant for the
purpose of determination of the dispute before it, and take a fresh
decision in accordance with law. As mentioned above, we are not
expressing any opinion on the merits of the case.
13. The
appeal is allowed to the extent indicated above.