State of Punjab Vs.
Davinder Pal Singh Bhullar & Ors. Etc.
[Criminal Appeal Nos.
753-755 of 2009]
Sumedh Singh Saini Vs.
Davinder Pal Singh Bhullar & Ors.
[Criminal Appeal No.
2258-2264 of 2011 (Arising out of SLP(Crl.) Nos. 6503-6509 of 2011)]
J U D G M E N T
Dr. B.S. Chauhan, J.
granted in the Special Leave Petitions filed by Shri Sumedh Singh Saini.
appeals have been preferred against the orders dated 30.5.2007, 22.8.2007, 5.10.2007
and 4.7.2008 in Crl. Misc. No. 152-MA of 2007; order dated 19.9.2007 in Crl.
Misc. No. 86286 of 2007 in Crl. Misc. No. 152-MA of 2007; and orders dated 2.11.2007
and 6.11.2007 in Crl. Misc. No. 93535 of 2007 in Crl. Misc. No. 152-MA of 2007 passed
by the High Court of Punjab and Haryana at Chandigarh. For the sake of
convenience of disposal of the appeals, we would refer only to the criminal
appeals filed by the State.
Appeals herein raise peculiar substantial questions of law as to whether the High
Court can pass an order on an application entertained after final disposal of
the criminal appeal or even suo motu particularly, in view of the provisions of
Section 362 of the Code of Criminal Procedure, 1973 (hereinafter called
Cr.P.C.) and as to whether in exercise of its inherent jurisdiction under Section
482 Cr.P.C. the High Court can ask a particular investigating agency to investigate
a case following a particular procedure through an exceptionally unusual method
which is not in consonance with the statutory provisions of Cr.P.C.
A. An FIR No.334/91
under Sections 302, 307, 323, 437 and 120-B of the Indian Penal Code, 1860 (hereinafter
called the `IPC') and Sections 3 & 4 of Explosive Substances Act, 1908 was
registered at Police Station, Sector 17, Chandigarh.
In connection with an
FIR dated 13.12.1991, one Balwant Singh Multani was arrested in a case in
respect of the FIR No.440 registered under Sections 212 and 216 IPC, Sections 25/54/69
of Arms Act 1959, and Sections 3 & 5 of the Terrorist and Disruptive
Activities (Prevention) Act, 1987 (hereinafter called as `TADA Act') at Police Station,
On 19.12.1991, the
said accused Balwant Singh Multani escaped from the custody of the police from Police
Station Qadian (Punjab) for which FIR No.112 dated 19.12.1991 under Sections 223
and 224 IPC was registered at Police Station Qadian (Punjab). Shri Darshan Singh
Multani, father of Balwant Singh Multani filed Criminal Writ Petition No.1188 of
1991 before the High Court of Punjab & Haryana under Article 226 of the Constitution
of India, 1950, (hereinafter called "Constitution"), for production of
the said accused Balwant Singh Multani.
The State Government filed
a reply to the same, explaining that the said accused had escaped from police custody
and after considering the case, the High Court dismissed the Habeas Corpus
Petition. After completion of the investigation in respect of FIR No.112 of
1991 regarding the escape of Balwant Singh Multani, a challan was 3filed before
the competent court wherein he was declared a proclaimed offender vide order dated
12.5.1993. After completion of the investigation in FIR No.334 of 1991 dated 29.8.1991,
the Police chargesheeted eight persons.
revealed that an attempt was made by terrorists on the life of the then SSP,
Chandigarh, by using explosives. In a thunderous explosion that followed, the
Ambassador Car of the SSP, Chandigarh, was blown high into the air whereafter
it fell down ahead at some distance completely shattered. HC Amin Chand, the
driver of the car and ASI Lalu Ram, PSO, died on the spot. ASI Ramesh Lal, PSO,
and CRPF jawans in the Escort vehicle were grievously injured.
The bomb explosion
was carried out by the terrorists from a parked car in order to kill the SSP,
UT, Chandigarh, and other police personnel and this explosion was conducted with
explosives operated with a remote control, because of which, two police
personnel died on the spot and many others were grievously injured. Three of
the accused, namely, Davinder Pal Singh Bhullar alias Master, Partap Singh Maan
and Gursharan Kaur Maan were subjected to trial. The other co-accused namely,
Navneet Singh, Manjit Singh, Manmohan Jit Singh, Gurjant Singh and Balwant
Singh were not traceable. They were declared proclaimed offenders.
B. On conclusion of the
trial, the Court vide judgment and order dated 1.12.2006 acquitted the three accused
giving them benefit of doubt.
C. Aggrieved, the State (U.T.,
Chandigarh) preferred Criminal Miscellaneous No.152-MA of 2007 before the High
Court challenging the said acquittal. However, the appeal was dismissed vide
judgment and order dated 11.5.2007.
D. After 20 days of the
disposal of the said Crl. Misc. No.152-MA of 2007, i.e., appeal against acquittal,
the High Court again took up the case suo motu on 30.5.2007 and directed the
authorities to furnish full details of the proclaimed offenders in respect of the
FIR No.334/91 dated 29.8.1991 and the Bench marked the matter "Part
E. Shri Dinesh Bhatt, SSP,
Chandigarh submitted an affidavit dated 4.8.2007, giving information regarding all
the proclaimed offenders in that case. One of them was Davinder Pal Singh
Bhullar, who had initially been declared as a proclaimed offender in the said
case on 2.3.1993.
However, he had subsequently
been arrested in a case relating to FIR No.316 of 1993, Police Station,
Parliament Street, Delhi and FIR No.150 of 1993, Police Station, Srinivas Puri,
New Delhi and had been sentenced to death in a case in which an assassination 5attempt
was made on the life of Shri M.S. Bitta, the then President, All India Youth Congress,
in which several persons were killed and Shri Bitta's legs were amputated. It was
also mentioned therein that Balwant Singh Multani escaped from police custody and
his whereabouts were not known. One proclaimed offender, Navneet Singh had been
killed in a police encounter in Rajasthan on 26.2.1995.
F. After considering the
said affidavit filed by Shri Dinesh Bhatt, SSP, the High Court vide order dated
22.8.2007 directed the Chandigarh Administration to constitute a Special Investigation
Team to enquire into all aspects of the proclaimed offenders and submit a
status report. The High Court also issued notice to the Central Bureau of
Investigation (hereinafter called the `CBI').
G. It was during the pendency
of these proceedings that Shri Darshan Singh Multani, father of Balwant Singh Multani,
whose habeas corpus writ petition had already been dismissed by the High Court
in the year 1991, approached the Court by filing a miscellaneous application on
16.9.2007, for issuance of directions to find out the whereabout of his son
Balwant Singh Multani.
H. In response to the
show cause notice dated 22.8.2007, the CBI submitted its reply on 3.10.2007 requesting
the High Court not to 6handover the enquiry to the CBI, as it was already overburdened
with the investigation of cases referred to it by various courts; suffered from
a shortage of manpower and resources; and the case did not have any inter-state
I. The High Court vide
order dated 19.9.2007 took note of the fact that Manmohan Jit Singh, an
employee of IBM, was reported by the US Department of Justice, Federal Bureau
of Investigation, to be one of the proclaimed offenders. In view thereof, an affidavit
was filed by Chandigarh Administration dated 5.10.2007 submitting that the
proclaimed offender Manmohan Jit Singh had left for abroad.
J. However, the High
Court vide order dated 5.10.2007, directed the CBI to investigate the allegations
of Darshan Singh Multani regarding his missing son and further directed the CBI
not to disclose the identity of any of the witnesses to anyone except the High
Court and to code the names of witnesses as witness A, B & C and further to
submit periodical status reports. The order further reads:- "However, Shri
Sumedh Singh Saini, Director, Vigilance Bureau, Punjab, who at that time, i.e.,
on 11.2.1991 was posted as Senior Supdt. of Police was at helm of affairs of Chandigarh
Police and was serving as the Sr. Supdt. of Police, UT. As of date, he is
holding a very important post and is in a position to influence the
investigating officer if it is 7 handed over to the Punjab Police or even for that
matter to the Chandigarh Police."
K. In the same matter, the
Bench entertained another Criminal Miscellaneous Application on 30.10.2007
filed by Davinder Pal Singh Bhullar, (a convict in another case and lodged in
Tihar Jail) regarding allegations that his father Shri Balwant Singh Bhullar and
maternal uncle Shri Manjit Singh had been abducted in the year 1991.
The High Court vide order
dated 6.11.2007 directed the CBI to investigate the allegations made in the
complaint filed by Davinder Pal Singh Bhullar and further to get his statement
recorded under Section 164 Cr.P.C., so that the witness may not resile under
duress or be won over by any kind of inducement. An order was passed rejecting
the submission made on behalf of the CBI that the alleged kidnapping of Shri Balwant
Singh Bhullar and Shri Manjit Singh had no connection with the said case
arising out of FIR No.334 dated 29.8.1991.
L. The CBI after making a
preliminary investigation/enquiry on the application, registered an FIR on 2.7.2008
under Sections 120-B, 364, 343, 330, 167 and 193 IPC against Shri S.S. Saini,
the then SSP, UT, Chandigarh, Shri Baldev Singh Saini, the then DSP, UT, Chandigarh,
Shri Harsahay Sharma, the then SI, P.S. Central, 8Chandigarh, Shri Jagir Singh,
the then SI, P.S. Central, Chandigarh and other unknown police officials of UT Police,
Chandigarh, and P.S. Qadian. The CBI further submitted a status report on 4.7.2008
and after considering the same, the High Court issued further directions to
complete the investigation within the stipulated period and submit a further
State of Punjab, being aggrieved, approached this Court submitting that it has to
espouse the cause of its officers who fought war against terrorism, putting
themselves at risk during the troublesome period in the early 1990s. That Shri
S.S. Saini, SSP, has been one of the most decorated officers of the State
having outstanding entries in his Service Book.
He is an honest and hardworking
officer and has taken drastic steps to curb terrorism in the State in early 1990s.
The terrorists had planned a diabolical act and an attempt was made on his
life, wherein his three bodyguards were killed and three others were seriously injured.
The officer himself suffered grievous injuries. The terrorists had also even
chased him up to England when he went there for a social visit. They had
planned to attack the said officer.
They were arrested by
the police and put to trial and also stood convicted. A sentence of four years had
been imposed. These appeals have been filed on various grounds, including: the judicial
bias of the Judge presiding over the Bench by making specific allegations that
the officer named in the order i.e. Shri S.S. Saini had conducted an enquiry
against the Presiding Judge (hereinafter called
X") on the direction of the Chief Justice of Punjab & Haryana High Court
and, thus, the said Judge ought not to have proceeded with the matter, rather should
have recused himself from the case. More so, as the judgment in appeal against acquittal
had been passed by the Court on 11.5.2007 upholding the judgment of acquittal, the
Court has become functus officio and it had no competence to reopen the case
vide order dated 30.5.2007.
Court vide order dated 11.7.2008 stayed the investigation until further orders.
Ram Jethmalani, Shri Ravi Shankar Prasad and Shri Ranjit Kumar, learned senior counsel
appearing for the appellants, have submitted that once the judgment in appeal
against acquittal has been rendered by the High Court on 11.5.2007, in view of the
complete embargo of the provisions of Section 362 Cr.P.C., the Court having
become functus officio was not competent to reopen the case and, thus, proceedings
subsequent to 11.5.2007 are a nullity for want of competence/jurisdiction.
More so, the
proceedings that continued after the said judgment, by illegally reopening the case,
were a result of judicial bias of Mr. Justice X, which was just to take revenge
against Shri S.S. Saini, who had conducted an inquiry against Mr. Justice X and
thus, all such proceedings are liable to be quashed. None of the parties had
ever named Mr. S.S. Saini in connection with any of the cases. It was Mr. Justice
X, who, on his personal knowledge, mentioned his name in court order dated
5.10.2007. Such a course is not permissible in law. More so, so far as Balwant
Singh Multani's case is concerned, his father Darshan Singh Multani (at the relevant
time an officer of Indian Administrative Service) had approached the High Court
for the same relief and the case stood dismissed in the year 1991 and he had
not taken up the matter any further.
Thus, the proceedings
attained finality. Application of Mr. Multani could not have been entertained
after the expiry of 16 years. The same position existed in respect of the
application filed by Davinder Pal Singh Bhullar (who had been convicted and
awarded a death sentence in another case and the same stood confirmed by this Court)
in respect of abduction of his father Balwant Singh Bhullar and uncle Manjit
Singh in the year 1991 without furnishing any explanation for delay of 16
More so, Mrs. Jagir
Kaur, sister of Balwant Singh Bhullar, had filed Crl. W.P. No. 1062 of 1997 for
production of Balwant Singh Bhullar, which stood dismissed vide order dated
15.7.1997 only on the ground of delay. A second writ petition for habeas corpus
is not maintainable and is barred by the principles of res judicata.
The CBI submitted
that investigation of the said alleged abduction be not tagged with that of the
involvement of the officer and disappearance of Balwant Singh Multani, as both the
incidents were separate and independent and had no connection with each other.
The High Court after taking note of the said submissions in its order dated 6.11.2007
illegally clubbed both the said applications.
The applications filed
by Davinder Pal Singh Bhullar and Darshan Singh Multani could not be
filed/entertained in the disposed of criminal appeal. Had the said applications
been filed independently, the same could be rejected as being filed at a much belated
stage. Even otherwise, the said applications could have gone to a different
Bench. Thus, by entertaining those applications in a disposed of criminal
appeal, the Bench presided over by Mr. Justice X violated the roster fixed by the
Chief Justice. Thus, the proceedings are liable to be quashed.
the other hand, S/Shri K.N. Balgopal and Colin Gonsalves, learned senior
counsel appearing for respondents - private parties and Shri P.K. Dey, learned
counsel appearing for the CBI, have submitted that in order to do complete justice
in the case, the High Court has exercised its power under Section 482 Cr.P.C., no
interference is required by this Court on such technical grounds.
The provisions of
Section 362 Cr.P.C. are not to be construed in a rigid and technical manner as it
would defeat the ends of justice. The two-fold aim of criminal justice is that "guilt
shall not escape nor innocence suffer." Allegations made against the
Presiding Judge are scandalous and false and do not require any consideration
whatsoever. The name of Mr. S.S. Saini, SSP stood mentioned in the record of
the case before the Bench. The chargesheet filed after investigation of
allegations in the FIR dated 19.8.1991 and in the judgment of the Trial Court
dated 1.12.2006 speak that the attack was made on him.
It is wrong that his name
has been added by the Presiding Judge in the Bench for his personal revenge on
his personal knowledge. So far as names of two proclaimed offenders, who had been
killed in an encounter are concerned, it has been mentioned in the chargesheet itself
that Navneet Singh and Gurjant Singh, proclaimed offenders, had been killed in
encounters. However, 1such fact could not be brought to the notice of the High
Court by the public prosecutor. The State of Punjab filed an application for
intervention but did not raise any issue of bias or prejudice against the
Presiding Judge of the Bench.
The Union Territory
of Chandigarh has approached this Court against the same impugned judgment and
order and special leave petition has been dismissed in limine. More so, after
conducting a preliminary enquiry, the CBI has registered a First Information Report
(hereinafter called the "FIR") on 2.7.2008 which should not be
quashed. The CBI be permitted to investigate the cases. Thus, the appeals are
liable to be dismissed.
have considered the rival submissions made by learned counsel for the parties
and perused the record.
LEGAL ISSUES :I. JUDICIAL
may be a case where allegations may be made against a Judge of having
bias/prejudice at any stage of the proceedings or after the proceedings are
over. There may be some substance in it or it may be made for ulterior purpose
or in a pending case to avoid the Bench if a party apprehends that judgment may
be delivered against him. Suspicion or bias disables an official from acting as
an adjudicator. Further, if such allegation is made without any substance, it
would be disastrous to the system as a whole, for the reason, that it casts
doubt upon a Judge who has no personal interest in the outcome of the
respect of judicial bias, the statement made by Frank J. of the United States
is worth quoting:- "If, however, `bias' and `partiality' be defined to mean
the total absence of preconceptions in the mind of the Judge, then no one has
ever had a fair trial and no one will. The human mind, even at infancy, is no blank
piece of paper. We are born with predispositions ....... Much harm is done by
the myth that, merely by....... taking the oath of office as a judge, a man ceases
to be human and strips himself of all predilections, becomes a passionless thinking
machine." [In re: Linahan, 138 F. 2nd 650 (1943)](See also: State of West Bengal
& Ors. v. Shivananda Pathak & Ors., AIR 1998 SC 2050).
recall the words of Mr. Justice Frankfurter in Public Utilities Commission of
the District of Columbia v. Franklin S. Pollak, 343 US 451 (1952) 466: The
Judicial process demands that a judge moves within the framework of relevant
legal rules and the covenanted modes 1of thought for ascertaining them. He must
think dispassionately and submerge private feeling on every aspect of a case.
There is a good deal of shallow talk that the judicial robe does not change the
man within it. It does. The fact is that, on the whole, judges do lay aside
private views in discharging their judicial functions. This is achieved through
training, professional habits, self-discipline and that fortunate alchemy by
which men are loyal to the obligation with which they are entrusted.
Bhajan Lal, Chief Minister, Haryana v. M/s. Jindal Strips Ltd. & Ors.,
(1994) 6 SCC 19, this Court observed that there may be some consternation and
apprehension in the mind of a party and undoubtedly, he has a right to have fair
trial, as guaranteed by the Constitution. The apprehension of bias must be
reasonable, i.e. which a reasonable person can entertain. Even in that case, he
has no right to ask for a change of Bench, for the reason that such an
apprehension may be inadequate and he cannot be permitted to have the Bench of
The Court held as
under:- "Bias is the second limb of natural justice. Prima facie no one
should be a judge in what is to be regarded as `sua causa', whether or not he is
named as a party. The decision-maker should have no interest by way of gain or detriment
in the outcome of a proceeding. Interest may take many forms. It may be direct,
it may be indirect, it may arise from a personal relationship or from a relationship
with the subject-matter, from a close relationship or from a tenuous one."
principle in these cases is derived from the legal maxim - nemo debet esse
judex in causa propria sua. It applies only when the interest attributed is such
as to render the case his own cause. This principle is required to be observed by
all judicial and quasi-judicial authorities as non-observance thereof, is treated
as a violation of the principles of natural justice. (Vide: Rameshwar Bhartia
v. The State of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State
of Bihar & Anr., AIR 1960 SC 468; Meenglas Tea Estate v. The Workmen, AIR 1963
SC 1719; and The Secretary to the Government, Transport Department, Madras v. Munuswamy
Mudaliar & Ors., AIR 1988 SC 2232).
The failure to adhere
to this principle creates an apprehension of bias on the part of the Judge. The
question is not whether the Judge is actually biased or, in fact, has really not
decided the matter impartially, but whether the circumstances are such as to create
a reasonable apprehension in the mind of others that there is a likelihood of
bias affecting the decision. (Vide: A.U. Kureshi v. High Court of Gujarat &
Anr., (2009) 11 SCC 84; and Mohd. Yunus Khan v. State of U.P. & Ors.,
(2010) 10 SCC 539).
Manak Lal, Advocate v. Dr. Prem Chand Singhvi & Ors., AIR 1957 SC 425, this
Court while dealing with the issue of bias held as under: "Actual proof of
prejudice in such cases may make the appellant's case stronger but such proof is
not necessary.... What is relevant is the reasonableness of the apprehension in
that regard in the mind of the appellant."
test of real likelihood of bias is whether a reasonable person, in possession
of relevant information, would have thought that bias was likely and whether
the adjudicator was likely to be disposed to decide the matter only in a particular
way. Public policy requires that there should be no doubt about the purity of the
adjudication process/administration of justice.
The Court has to
proceed observing the minimal requirements of natural justice, i.e., the Judge has
to act fairly and without bias and in good faith. A judgment which is the
result of bias or want of impartiality, is a nullity and the trial "coram non
judice". Therefore, the consequential order, if any, is liable to be
quashed. (Vide: Vassiliades v. Vassiliades, AIR 1945 PC 38; S. Parthasarathi v.
State of Andhra Pradesh, AIR 1973 SC 2701; and Ranjit Thakur v. Union of India
& Ors., AIR 1987 SC 2386).
Rupa Ashok Hurra v. Ashok Hurra & Anr., (2002) 4 SCC 388, this Court
observed that public confidence in the judiciary is said to be the basic
criterion of judging the justice delivery system. If any act or action, even if
it is a passive one, erodes or is even likely to erode the ethics of judiciary,
the matter needs a further look.
In the event, there
is any affectation of such an administration of justice either by way of
infraction of natural justice or an order being passed wholly without jurisdiction
or affectation of public confidence as regards the doctrine of integrity in the
justice delivery system, technicality ought not to outweigh the course of
justice - the same being the true effect of the doctrine of ex debito
justitiae. It is enough if there is a ground of an appearance of bias.
While deciding the said
case, this Court placed reliance upon the judgment of the House of Lords in Ex Parte
Pinochet Ugarte (No.2) 1999 All ER, 577, in which the House of Lords on
25.11.1998, restored warrant of arrest of Senator Pinochet who was the Head of
the State of Chile and was to stand trial in Spain for some alleged offences.
It came to be known later that one of the Law Lords (Lord Hoffmann), who heard
the case, had links with Amnesty International (AI) which had become a party to
This was not
disclosed by him at the time of the hearing of the case by the House. Pinochet Ugarte,
on coming to know of that fact, sought reconsideration of the said judgment of
the House of Lords on the ground of appearance of bias and not actual bias. On
the principle of disqualification of a Judge to hear a matter on the ground of
appearance of bias, it was pointed out: "An appeal to the House of Lords will
only be reopened where a party though no fault of its own, has been subjected to
an unfair procedure. A decision of the House of Lords will not be varied or rescinded
merely because it is subsequently thought to be wrong."
Locabail (UK) Ltd. v. Bayfield Properties Ltd. & Anr., (2000) 1 All ER 65, the
House of Lords considered the issue of disqualification of a Judge on the ground
of bias and held that in applying the real danger or possibility of bias test,
it is often appropriate to inquire whether the Judge knew of the matter in
question. To that end, a reviewing court may receive a written statement from
the Judge. A Judge must recuse himself from a case before any objection is made
or if the circumstances give rise to automatic disqualification or he feels
personally embarrassed in hearing the case.
If, in any other
case, the Judge becomes aware of any matter which can arguably be said to give rise
to a real danger of bias, it is generally desirable that disclosure should be made
to the parties in advance of the hearing. Where objection is then made, it will
be as wrong for the Judge to yield to a tenuous or frivolous objection as it will
be to ignore an objection of substance. However, if there is real ground for
doubt, that doubt must be resolved in favour of recusal. Where, following appropriate
disclosure by the Judge, a party raises no objection to the Judge hearing or
continuing to hear a case, that party cannot subsequently complain that the
matter disclosed gives rise to a real danger of bias.
Justice P.D. Dinakaran v. Hon'ble Judges Inquiry Committee, (2011) 8 SCC 380, this
Court has held that in India the courts have held that, to disqualify a person
as a Judge, the test of real likelihood of bias, i.e., real danger is to be
applied, considering whether a fair minded and informed person, apprised of all
the facts, would have a serious apprehension of bias.
In other words, the
courts give effect to the maxim that `justice must not only be done but be seen
to be done', by examining not actual bias but real possibility of bias based on
facts and materials. The Court further held: "The first requirement of
natural justice is that the Judge should be impartial and neutral and must be free
from bias. He is supposed to be indifferent to the parties to the controversy.
He cannot act as Judge
of a cause in which he himself has some interest either pecuniary or otherwise as
it affords the strongest proof against neutrality. He must be in a position to
act judicially and to decide the matter objectively. A Judge must be of sterner
stuff. His mental equipoise must always remain firm and undetected. He should not
allow his personal prejudice to go into the decision- making.
The object is not
merely that the scales be held even; it is also that they may not appear to be inclined.
If the Judge is subject to bias in favour of or against either party to the dispute
or is in a position that a bias can be assumed, he is disqualified to act as a
Judge, and the proceedings will be vitiated. This rule applies to the judicial and
administrative authorities required to act judicially or
it is evident that the allegations of judicial bias are required to be scrutinised
taking into consideration the factual matrix of the case in hand. The court
must bear in mind that a mere ground of appearance of bias and not actual bias
is enough to vitiate the judgment/order.
Actual proof of prejudice
in such a case may make the case of the party concerned stronger, but such a
proof is not required. In fact, what is relevant is the reasonableness of the apprehension
in that regard in the mind of the party. However, once such an apprehension exists,
the trial/judgment/order etc. 2 stands vitiated for want of impartiality. Such
judgment/order is a nullity and the trial "coram non-judice". II. DOCTRINE
Manak Lal (Supra), this Court held that alleged bias of a
Judge/official/Tribunal does not render the proceedings invalid if it is shown that
the objection in that regard and particularly against the presence of the said
official in question, had not been taken by the party even though the party
knew about the circumstances giving rise to the allegations about the alleged bias
and was aware of its right to challenge the presence of such official.
The Court further
observed that waiver cannot always and in every case be inferred merely from the
failure of the party to take the objection. "Waiver can be inferred only
if and after it is shown that the party knew about the relevant facts and was
aware of his right to take the objection in question."
Thus, in a given case
if a party knows the material facts and is conscious of his legal rights in
that matter, but fails to take the plea of bias at the earlier stage of the
proceedings, it creates an effective bar of waiver against him. In such facts
and circumstances, it would be clear that the party wanted to take a chance to
secure a favourable order from the official/court and when he found that he was
confronted with an unfavourable order, he adopted the device of raising the
issue of bias. The issue of bias must be raised by the party at the earliest.
(See: M/s. Pannalal Binjraj & Ors. v. Union of India & Ors., AIR 1957
SC 397; and Justice P.D. Dinakaran (Supra))
M/s. Power Control Appliances & Ors. v. Sumeet Machines Pvt. Ltd., (1994) 2
SCC 448 this Court held as under:- "Acquiescence is sitting by, when
another is invading the rights.... It is a course of conduct inconsistent with the
claim... It implies positive acts; not merely silence or inaction such as involved
in laches. ........ The acquiescence must be such as to lead to the inference
of a licence sufficient to create a new right in the defendant......" Inaction
in every case does not lead to an inference of implied consent or acquiescence as
has been held by this Court in P. John Chandy & Co. (P) Ltd. v. John P. Thomas,
AIR 2002 SC 2057. Thus, the Court has to examine the facts and circumstances in
an individual case.
is an intentional relinquishment of a right. It involves conscious abandonment of
an existing legal right, advantage, benefit, claim or privilege, which except
for such a waiver, a party could have enjoyed. In fact, it is an agreement not
to assert a right. There can be no waiver unless the person who is said to have
waived, is fully informed as to his rights and with full knowledge about the
same, he intentionally abandons them. (Vide: Dawsons Bank Ltd. v. Nippon Menkwa
Kabushihi Kaish, AIR 1935 PC 79; Basheshar Nath v. Commissioner of Income-tax, Delhi
and Rajasthan & Anr., AIR 1959 SC 149; Mademsetty Satyanarayana v. G.
Yelloji Rao & Ors., AIR 1965 SC 1405; Associated Hotels of India Ltd. v. S.
B. Sardar Ranjit Singh, AIR 1968 SC 933; Jaswantsingh Mathurasingh & Anr.
v. Ahmedabad Municipal Corporation & Ors., (1992) Suppl 1 SCC 5; M/s.
Sikkim Subba Associates v. State of Sikkim, AIR 2001 SC 2062; and Krishna
Bahadur v. M/s. Purna Theatre & Ors., AIR 2004 SC 4282).
Court in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi Tenants' Association
& Ors., AIR 1988 SC 233 considered the issue of waiver/acquiescence by the non-parties
to the proceedings and held: "In order to constitute waiver, there must be
voluntary and intentional relinquishment of a right.
The essence of a waiver
is an estoppel and where there is no estoppel, there is no waiver. Estoppel and
waiver are questions of conduct and must 2 necessarily be determined on the facts
of each case....... There is no question of estoppel, waiver or abandonment. There
is no specific plea of waiver, acquiescence or estoppel, much less a plea of abandonment
of right. That apart, the question of waiver really does not arise in the case.
Admittedly, the tenants were not parties to the earlier proceedings. There is, therefore,
no question of waiver of rights, by Respondents 4-7 nor would this disentitle the
tenants from maintaining the writ petition."
from the above, it is apparent that the issue of bias should be raised by the
party at the earliest, if it is aware of it and knows its right to raise the
issue at the earliest, otherwise it would be deemed to have been waived.
However, it is to be kept in mind that acquiescence, being a principle of equity
must be made applicable where a party knowing all the facts of bias etc., surrenders
to the authority of the Court/Tribunal without raising any objection.
fact, is sitting by, when another is invading the rights. The acquiescence must
be such as to lead to the inference of a licence sufficient to create rights in
other party. Needless to say that question of waiver/acquiescence would arise in
a case provided the person apprehending the bias/prejudice is a party to the
case. The question of waiver would not 2arise against a person who is not a
party to the case as such person has no opportunity to raise the issue of bias.
III. BAR TO REVIEW/ALTER-
is no power of review with the Criminal Court after judgment has been rendered.
The High Court can alter or review its judgment before it is signed. When an order
is passed, it cannot be reviewed. Section 362 Cr.P.C. is based on an
acknowledged principle of law that once a matter is finally disposed of by a Court,
the said Court in the absence of a specific statutory provision becomes functus
officio and is disentitled to entertain a fresh prayer for any relief unless
the former order of final disposal is set aside by a Court of competent
jurisdiction in a manner prescribed by law.
The Court becomes
functus officio the moment the order for disposing of a case is signed. Such an
order cannot be altered except to the extent of correcting a clerical or
arithmetical error. There is also no provision for modification of the
judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa & Ors., AIR 2001
SC 43; and Chhanni v. State of U.P., AIR 2006 SC 3051).
prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is
signed, even the High Court in exercise of its inherent power under Section 482
Cr.P.C. has no authority or jurisdiction to alter/review the same. (See: Moti
Lal v. State of M.P., AIR 1994 SC 1544; Hari Singh Mann (supra); and State of
Kerala v. M.M. Manikantan Nair, AIR 2001 SC 2145).
a judgment has been pronounced without jurisdiction or in violation of principles
of natural justice or where the order has been pronounced without giving an opportunity
of being heard to a party affected by it or where an order was obtained by
abuse of the process of court which would really amount to its being without jurisdiction,
inherent powers can be exercised to recall such order for the reason that in
such an eventuality the order becomes a nullity and the provisions of Section 362
Cr.P.C. would not operate.
In such eventuality, the
judgment is manifestly contrary to the audi alteram partem rule of natural justice.
The power of recall is different from the power of altering/reviewing the judgment.
However, the party seeking recall/alteration has to establish that it was not at
fault. (Vide: Chitawan & Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak
Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J. 223; Habu v.
State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth Mahto & Anr. v. Dharmdeo
Narain Singh, AIR 1972 SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan,
AIR 1981 SC 1156; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2
SCC 703; and Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC 1232).
Court by virtue of Article 137 of the Constitution has been invested with an express
power to review any judgment in Criminal Law and while no such power has been
conferred on the High Court, inherent power of the court cannot be exercised
for doing that which is specifically prohibited by the Code itself. (Vide: State
Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., AIR
2009 SC 46).
Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736, this Court held that
the prohibition in Section 362 Cr.P.C. against the Court altering or reviewing its
judgment, is subject to what is "otherwise provided by this Code or by any
other law for the time being in force". Those words, however, refer to
those provisions only where the Court has been expressly authorised by the Code
or other law to alter or review its judgment. The inherent power of the Court is
not contemplated by the saving provision contained in Section 362 Cr.P.C. and,
therefore, the attempt to invoke that power can be of no avail.
the law on the issue can be summarised to the effect that the criminal justice
delivery system does not clothe the court to add or delete any words, except to
correct the clerical or arithmetical error as specifically been provided under
the statute itself after pronouncement of the judgment as the Judge becomes functus
officio. Any mistake or glaring omission is left to be corrected only by the
appropriate forum in accordance with law.
IV. INHERENT POWERS
UNDER SECTION 482 Cr.P.C.
inherent power under Section 482 Cr.P.C. is intended to prevent the abuse of
the process of the Court and to secure the ends of justice. Such power cannot be
exercised to do something which is expressly barred under the Cr.P.C. If any
consideration of the facts by way of review is not permissible under the Cr.P.C.
and is expressly barred, it is not for the Court to exercise its inherent power
to reconsider the matter and record a conflicting decision.
If there had been
change in the circumstances of the case, it would be in order for 3the High Court
to exercise its inherent powers in the prevailing circumstances and pass
appropriate orders to secure the ends of justice or to prevent the abuse of the
process of the Court. Where there are no such changed circumstances and the
decision has to be arrived at on the facts that existed as on the date of the
earlier order, the exercise of the power to reconsider the same materials to
arrive at different conclusion is in effect a review, which is expressly barred
under Section 362 Cr.P.C. (See: Simrikhia v. Dolley Mukherjee and Chhabi
Mukherjee & Anr, (1990) 2 SCC 437).
inherent power of the court under Section 482 Cr.P.C. is saved only where an
order has been passed by the criminal court which is required to be set aside to
secure the ends of justice or where the proceeding pending before a court,
amounts to abuse of the process of court. Therefore, such powers can be exercised
by the High Court in relation to a matter pending before a criminal court or
where a power is exercised by the court under the Cr.P.C.
Inherent powers cannot
be exercised assuming that the statute conferred an unfettered and arbitrary
jurisdiction, nor can the High Court act at its whim or caprice. The statutory
power has to be exercised sparingly with circumspection and in the rarest of
rare cases. (Vide: Kurukshetra University & Anr. v. State of Haryana &
Anr., AIR 1977 SC 2229; and State of W.B. & Ors. v. Sujit Kumar Rana,
(2004) 4 SCC 129).
power under Section 482 Cr.P.C. cannot be resorted to if there is a specific provision
in the Cr.P.C. for the redressal of the grievance of the aggrieved party or where
alternative remedy is available. Such powers cannot be exercised as against the
express bar of the law and engrafted in any other provision of the Cr.P.C. Such
powers can be exercised to secure the ends of justice and to prevent the abuse
of the process of court.
expressions do not confer unlimited/unfettered jurisdiction on the High Court as
the "ends of justice" and "abuse of the process of the
court" have to be dealt with in accordance with law including the procedural
law and not otherwise. Such powers can be exercised ex debito justitiae to do real
and substantial justice as the courts have been conferred such inherent
jurisdiction, in absence of any express provision, as inherent in their
constitution, or such powers as are necessary to do the right and to undo a
wrong in course of administration of justice as provided in the legal maxim
"quando lex aliquid alique, concedit, concedituret id sine quo res ipsa
esse non potest".
However, the High
Court has not been given nor does it possess any inherent power to make any
order, which in the opinion of the court, could be in the interest of justice
as the statutory provision is not intended to by-pass the procedure prescribed.
(Vide: Lalit Mohan Mondal & Ors. v. Benoyendra Nath Chatterjee, AIR 1982 SC
785; Rameshchandra Nandlal Parikh v. State of Gujarat & Anr., AIR 2006 SC 915;
Central Bureau of Investigation v. Ravi Shankar Srivastava, IAS & Anr., AIR
2006 SC 2872; Inder Mohan Goswami & Anr. v. State of Uttaranchal &
Ors., AIR 2008 SC 251; and Pankaj Kumar v. State of Maharashtra & Ors., AIR
2008 SC 3077).
High Court can always issue appropriate direction in exercise of its power
under Article 226 of the Constitution at the behest of an aggrieved person, if the
court is convinced that the power of investigation has been exercised by an
Investigating Officer malafide or the matter is not investigated at all.
Even in such a case,
the High Court cannot direct the police as to how the investigation is to be
conducted but can insist only for the observance of process as provided for in
the Cr.P.C. Another remedy available to such an aggrieved person may be to file
a complaint under Section 200 Cr.P.C. and the court concerned will proceed as provided
in Chapter XV of the Cr.P.C. (See: Gangadhar Janardan Mhatre v. State of Maharashtra
& Ors., 3(2004) 7 SCC 768; and Divine Retreat Centre v. State of Kerala
& Ors., AIR 2008 SC 1614).
provisions of Section 482 Cr.P.C. closely resemble Section 151 of Code of Civil
Procedure, 1908, (hereinafter called the `CPC'), and, therefore, the restrictions
which are there to use the inherent powers under Section 151 CPC are applicable
in exercise of powers under Section 482 Cr.P.C. and one such restriction is
that there exists no other provision of law by which the party aggrieved could have
sought relief. (Vide: The Janata Dal v. H.S. Chowdhary & Ors., AIR 1993 SC
Divisional Forest Officer & Anr. v. G.V. Sudhakar Rao & Ors., AIR 1986 SC
328, this Court held that High Court was not competent under Section 482
Cr.P.C. to stay the operation of an order of confiscation under Section 44(IIA)
of the Andhra Pradesh Forest Act as it is distinct from a trial before a court for
the commission of an offence.
Popular Muthiah v. State represented by Inspector of Police, (2006) 7 SCC 296,
explaining the scope of Section 482 Cr.P.C., this Court held : "The High Court
cannot issue directions to investigate the case from a particular angle or by a
particular agency." (Emphasis added) Thus, in case, the High Court in
exercise of its inherent powers, issues directions contravening the statutory provisions
laying down the procedure of investigation, it would be unwarranted in law.
Rajan Kumar Machananda v. State of Karnataka, 1990 (supp.) SCC 132, this Court examined
a case as to whether the bar under Section 397(3) Cr.P.C. can be circumvented by
invoking inherent jurisdiction under Section 482 Cr.P.C. by the High Court. The
Court came to the conclusion that if such a course was permissible it would be
possible that every application facing the bar of Section 397(3) Cr.P.C. would
be labelled as one under Section 482 Cr.P.C. Thus, the statutory bar cannot be
Court has consistently emphasised that judges must enforce laws whatever they may
be and decide the cases strictly in accordance with the law. "The laws are
not always just and the lights are not always luminous. Nor, again, are judicial
methods always adequate to secure justice". But the courts "are bound
by the Penal Code and Criminal Procedure Code" by the very `oath' of the
office. 3(See: Joseph Peter v. State of Goa, Daman and Diu, AIR 1977 SC 1812).
is evident from the above that inherent powers can be exercised only to prevent
the abuse of the process of the court and to secure the ends of justice.
However, powers can be used provided there is no prohibition for passing such an
order under the provisions of Cr.P.C. and there is no provision under which the
party can seek redressal of its grievance. Under the garb of exercising
inherent powers, the Criminal Court cannot review its judgment. Such powers are
analogous to the provisions of Section 151 CPC and can be exercised only to do
real and substantial justice.
The rule of inherent
powers has its source in the maxim "Quadolex aliquid alicui concedit,
concedere videtur id sine quo ipsa, ess uon potest" which means that when
the law gives anything to anyone, it gives also all those things without which
the thing itself could not exist. The order cannot be passed by-passing the procedure
prescribed by law. The court in exercise of its power under Section 482 Cr.P.C.
cannot direct a particular agency to investigate the matter or to investigate a
case from a particular angle or by a procedure not prescribed in Cr.P.C.
Such powers should be
exercised very sparingly to prevent abuse of process of any court. Courts must
be careful to see that its decision in exercise of this power is based on sound
principles. To inhere means that it forms a necessary part and belongs as an
attribute in the nature of things. The High Court under Section 482 Cr.P.C. is
crowned with a statutory power to exercise control over the administration of justice
in criminal proceedings within its territorial jurisdiction.
This is to ensure that
proceedings undertaken under the Cr.P.C. are executed to secure the ends of justice.
For this, the Legislature has empowered the High Court with an inherent
authority which is repository under the Statute. The Legislature therefore
clearly intended the existence of such power in the High Court to control
proceedings initiated under the Cr.P.C. Conferment of such inherent power might
be necessary to prevent the miscarriage of justice and to prevent any form of
injustice. However, it is to be understood that it is neither divine nor limitless.
It is not to generate
unnecessary indulgence. The power is to protect the system of justice from being
polluted during the administration of justice under the Code. The High Court
can intervene where it finds the abuse of the process of any court which means,
that wherever an attempt to secure something by abusing the process is located,
the same can be rectified by invoking such 3power. There has to be a nexus and
a direct co-relation to any existing proceeding, not foreclosed by any other form
under the Code, to the subject matter for which such power is to be exercised.
Section 482 Cr.P.C. lies before the High Court against an order passed by the court
subordinate to it in a pending case/proceedings. Generally, such powers are used
for quashing criminal proceedings in appropriate cases. Such an application does
not lie to initiate criminal proceedings or set the criminal law in motion.
Inherent jurisdiction can be exercised if the order of the Subordinate Court
results in the abuse of the "process" of the court and/or calls for
interference to secure the ends of justice. The use of word `process' implies
that the proceedings are pending before the Subordinate Court.
When reference is
made to the phrase "to secure the ends of justice", it is in fact in
relation to the order passed by the Subordinate Court and it cannot be
understood in a general connotation of the phrase. More so, while entertaining
such application the proceedings should be pending in the Subordinate Court. In
case it attained finality, the inherent powers cannot be exercised. Party aggrieved
may approach the appellate/revisional forum.
can be exercised if injustice done to a party, e.g., a clear mandatory provision
of law is 3overlooked or where different accused in the same case are being
treated differently by the Subordinate Court. An inherent power is not an omnibus
for opening a pandorabox, that too for issues that are foreign to the main
context. The invoking of the power has to be for a purpose that is connected to
a proceeding and not for sprouting an altogether new issue. A power cannot
exceed its own authority beyond its own creation. It is not that a person is
On the contrary, the
constitutional remedy of writs are available. Here, the High Court enjoys wide
powers of prerogative writs as compared to that under Section 482 Cr.P.C. To secure
the corpus of an individual, remedy by way of habeas corpus is available. For that
the High Court should not resort to inherent powers under Section 482 Cr.P.C. as
the Legislature has conferred separate powers for the same. Needless to mention
that Section 97 Cr.P.C. empowers Magistrates to order the search of a person wrongfully
It is something different
that the same court exercising authority can, in relation to the same subject
matter, invoke its writ jurisdiction as well. Nevertheless, the inherent powers
are not to provide universal remedies. The power cannot be and should not be used
to belittle its own existence. One cannot concede anarchy to an inherent power
for that 3was never the wisdom of the Legislature. To confer un-briddled
inherent power would itself be trenching upon the authority of the Legislature.
V. JURISDICTION OF
THE BENCH :
court is "not to yield to spasmodic sentiments to vague and unregulated
benevolence". The court "is to exercise discretion informed by tradition,
methodized by analogy, disciplined by system". This Court in State of
Rajasthan v. Prakash Chand & Ors., AIR 1998 SC 1344 observed as under: "Judicial
authoritarianism is what the proceedings in the instant case smack of. It
cannot be permitted under any guise. Judges must be circumspect and self-disciplined
in the discharge of their judicial functions......
It needs no emphasis to
say that all actions of a Judge must be judicious in character. Erosion of
credibility of the judiciary, in the public mind, for whatever reasons, is the
greatest threat to the independence of the judiciary. Eternal vigilance by the Judges
to guard against any such latent internal danger is, therefore, necessary, lest
we "suffer from self-inflicted mortal wounds".
We must remember that
the Constitution does not give unlimited powers to anyone including the Judge
of all levels. The societal perception of Judges as being detached and impartial
referees is the greatest strength of the judiciary and every member of the judiciary
must ensure that this perception does not receive a setback consciously or unconsciously.
Authenticity of the judicial
process rests on public confidence and public confidence rests on legitimacy of
judicial process. Sources of legitimacy are in the impersonal application by
the Judge of recognised objective principles which owe their existence to a system
as distinguished from subjective moods, predilections, emotions and prejudices.
It is most unfortunate that the order under appeal founders on this touchstone and
is wholly unsustainable".
Court in State of U.P. & Ors. v. Neeraj Chaubey & Ors., (2010) 10 SCC
320, had taken note of various judgments of this Court including State of
Maharashtra v. Narayan Shamrao Puranik, AIR 1982 SC 1198; Inder Mani v.
Matheshwari Prasad, (1996) 6 SCC 587; Prakash Chand (Supra); R. Rathinam v.
State, (2002) 2 SCC 391; and Jasbir Singh v. State of Punjab, (2006) 8 SCC 294,
and came to the conclusion that the Chief Justice is the master of roster.
The Chief Justice has
full power, authority and jurisdiction in the matter of allocation of business
of the High Court which flows not only from the provisions contained in sub-section
(3) of Section 51 of the States Reorganisation Act, 1956, but inheres in him in
the very nature of things. The Chief Justice enjoys a special status and he
alone can assign work to a Judge sitting alone and to the Judges sitting in Division
Bench or Full Bench. He has jurisdiction to decide which case will be heard by which
The Court held that a
Judge or a Bench of 4Judges can assume jurisdiction in a case pending in the
High Court only if the case is allotted to him or them by the Chief Justice. Strict
adherence of this procedure is essential for maintaining judicial discipline
and proper functioning of the Court. No departure from this procedure is
permissible. In Prakash Chand (Supra), this Court dealt with a case wherein the
Chief Justice of Rajasthan High Court had withdrawn a part-heard matter from one
Bench and directed it to be listed before another Bench.
However, the earlier Bench
still made certain observations. While dealing with the issue, this Court held
that it was the exclusive prerogative of the Chief Justice to withdraw even a
part-heard matter from one Bench and to assign it to any other Bench.
Therefore, the observations made by the Bench subsequent to withdrawal of the case
from that Bench and disposal of the same by another Bench were not only unjustified
and unwarranted but also without jurisdiction and made the Judge coram
It is a settled legal
proposition that no Judge or a Bench of Judges assumes jurisdiction unless the
case is allotted to him or them under the orders of the Chief Justice. 4 It has
rightly been pointed out by the Full Bench of Allahabad High Court in Sanjay Kumar
Srivastava v. Acting Chief Justice, 1996 AWC 644, that if the Judges were free
to choose their jurisdiction or any choice was given to them to do whatever
case they would like to hear and decide, the machinery of the court could have
collapsed and judicial functioning of the court could have ceased by generation
of internal strife on account of hankering for a particular jurisdiction or a
view of the above, the legal regime, in this respect emerges to the effect that
the Bench gets jurisdiction from the assignment made by the Chief Justice and
the Judge cannot choose as which matter he should entertain and he cannot
entertain a petition in respect of which jurisdiction has not been assigned to him
by the Chief Justice as the order passed by the court may be without jurisdiction
and made the Judge coram non-judice. VI. WHEN CBI ENQUIRY CAN BE DIRECTED:
Secretary, Minor Irrigation and Rural Engineering Services, U.P. & Ors. v.
Sahngoo Ram Arya & Anr., AIR 2002 SC 42225, this Court placed reliance on its
earlier judgment in Common Cause, A Registered Society v. Union of India &
Ors, (1999) 6 SCC 667 and held that before directing CBI to investigate, the court
must reach a conclusion on the basis of pleadings and material on record that a
prima facie case is made out against the accused. The court cannot direct CBI
to investigate as to whether a person committed an offence as alleged or not. The
court cannot merely proceed on the basis of `ifs' and `buts' and think it
appropriate that inquiry should be made by the CBI.
Divine Retreat Centre (Supra), this Court held that the High Court could have
passed a judicial order directing investigation against a person and his activities
only after giving him an opportunity of being heard. It is not permissible for the
court to set the criminal law in motion on the basis of allegations made
against a person in violation of principles of natural justice. A person against
whom an inquiry is directed must have a reasonable opportunity of being heard as
he is likely to be adversely affected by such order and, particularly, when
such an order results in drastic consequence of affecting his reputation.
D. Venkatasubramaniam & Ors. v. M.K.Mohan Krishnamachari & Anr., (2009)
10 SCC 488, this Court held that an order passed behind the back of a party is
a nullity and liable to be set aside only on this score. Therefore, a person
against whom an order is passed on the basis of a criminal petition filed
against him, he should be impleaded as a respondent being a necessary party.
Court in Disha v. State of Gujarat & Ors., AIR 2011 SC 3168, after considering
the various judgments of this Court, particularly, in Vineet Narain & Ors.
v. Union of India & Anr., AIR 1996 SC 3386; Union of India v. Sushil Kumar
Modi, (1998) 8 SCC 661; Rajiv Ranjan Singh `Lalan' (VIII) v. Union of India,
(2006) 6 SCC 613; Rubabbuddin Sheikh v. State of Gujarat & Ors.,
AIR 2010 SC 3175; and
Ashok Kumar Todi v. Kishwar Jahan & Ors., (2011) 3 SCC 758; held that the
court can transfer the matter to the CBI or any other special agency only when it
is satisfied that the accused is a very powerful and influential person or the State
Authorities like high police officials are involved in the offence and the
investigation has not been proceeded with in proper direction or the
investigation had been conducted in a biased manner.
In such a case, in order
to do complete justice and having belief that it would lend credibility to the
final outcome of the investigation, such directions may be issued.
in view of the above, it is evident that a constitutional court can direct the
CBI to investigate into the case provided the court after examining the allegations
in the complaint reaches a conclusion that the complainant could make out prima
facie, a case against the accused. However, the person against whom the investigation
is sought, is to be impleaded as a party and must be given a reasonable
opportunity of being heard. CBI cannot be directed to have a roving inquiry as to
whether a person was involved in the alleged unlawful activities.
The court can direct
CBI investigation only in exceptional circumstances where the court is of the view
that the accusation is against a person who by virtue of his post could influence
the investigation and it may prejudice the cause of the complainant, and it is necessary
so to do in order to do complete justice and make the investigation credible. INSTANT
present appeals are required to be decided in the light of the aforesaid
settled legal propositions.
is evident from the judgment and order dated 11.5.2007 that Criminal Misc.
No.152-MA of 2007 stood dismissed. The order sheet dated 30.5.2007 reveals that
in spite of the disposal of the said criminal appeal it had been marked therein
as "put up for further hearing" and the order dated 30.5.2007 reveals
the directions given to the Trial Court to furnish a detailed report as to the
measures taken by it to bring the proclaimed offenders, namely Navneet Singh, Manjit
Singh, Manmohan Singh, Gurjant Singh and Balwant Singh before the Court and the
case was adjourned for 2nd July, 2007.
different orders are available on the record of this case. The aforesaid
marking "put up for further hearing" had been shown in the order
sheet dated 11.5.2007, i.e., the date of disposal of criminal appeal against acquittal.
While in another copy, it is not in the order sheet dated 11.5.2007 but on the
order sheet dated 30.5.2007. In view of this confusion, this Court vide order dated
17.3.2011 has called for the original record.
It appears from the
original record that no such order had been passed on 11.5.2007. More so, there
is nothing on record to show as under what circumstances the file was put up
before the Court 4on 30.5.2007 as no order had ever been passed by the court in
this regard. The proceedings dated 10.7.2007, 25.7.2007, 31.7.2007, 6.8.2007
and 9.8.2007 show that the case has been adjourned for short dates. The order dated
5.9.2007 shows that the Bench headed by Mr. Justice X was furnished with full
information regarding proclaimed offenders by the authorities.
However, the case was
adjourned for 19.9.2007. The order dated 19.9.2007 reveals that the Bench not
only entertained the application filed by Darshan Singh Multani, IAS (Retd.), but
also expressed its anguish that nothing could be done since the year 1993 by
the Chandigarh Police to procure the presence of the proclaimed offenders. The Police
by filing the replies had adopted the delaying tactics only to derail the process
of the court without bringing the proclaimed offenders to justice.
The application filed
by the U.T., Chandigarh to file a reply to the application filed by Darshan Singh
Multani was rejected. The CBI was further directed to investigate the case properly,
as no worthwhile steps were being taken by the Chandigarh Police. The order
dated 5.10.2007 passed by the Bench shows that the CBI had been impleaded as respondent
in the petition suo motu by the court. The CBI submitted its reply to the Crl.Misc.
Application No. 86287 of 2007 opposing the said application and further
submitted that the matter be not entrusted to the CBI and petition be dismissed
being devoid of any merit.
The order dated 6.11.2007
reveals that the Court enlarged the scope of investigation by the CBI by including
investigations qua Balwant Singh Bhullar and Manjit Singh. Relevant part of the
order dated 4.7.2008 reads as under: "After going through the status report,
it comes out that the encounter of Navneet Singh son of late Tirath Singh of Qadian
was a genuine encounter with the Rajasthan police.
We feel that there is
no need to further investigate the matter in the case of Navneet Singh son of
late Tirath Singh. In the case of Manjit Singh son of late Rattan Singh, no
evidence is coming forth and the CBI is at liberty to drop the investigation of
Manjit Singh son of late Rattan Singh, if it so desires." Thus, it is
clear that the Bench was aware of the fact that two proclaimed offenders had been
killed in encounters. Thus, the CBI was given liberty not to further investigate
the matter in case of Navneet Singh and Manjit Singh, if it so desired.
record reveals that Davinder Pal Singh Bhullar was involved in M.S. Bitta's assassination
attempt and had absconded to Germany on a fake passport. He was arrested there
and was extradited to India and arrested on 18.1.1995. He was tried for the
said offence, convicted in the year 2001 and given the death sentence. It was
confirmed by the High Court as well as by this Court and the review petition also
stood rejected in January 2003.
Ever since 2003, he
remained silent regarding the investigation of the alleged disappearances of his
father and uncle and suddenly woke up in the year 2007 when the Bench presided
by Mr. Justice X started suo motu hearing various other matters after the
disposal of the criminal appeal against acquittal.
The Court was fully aware
that another relative of Bhullar i.e. his father's sister had filed a case
before the High Court in the year 1997, for production of Balwant Singh
Bhullar, the father of Davinder Pal Singh Bhullar above and not for his uncle
Manjit Singh. The High Court had rejected the said petition vide order dated
15.7.1997 and the matter was not agitated further. Thus, it attained finality.
application of the Punjab Government dated 19.5.2008 bearing Crl. Misc. No. 23084
of 2008 to get itself impleaded in the matter is still pending consideration, though
order dated 23.5.2008 gives a different impression altogether.
the application for Leave to Appeal stood disposed of vide judgment and order dated
11.5.2007. The matter suddenly appeared before the Bench on 30.5.2007 and the Court
directed the Police to furnish information regarding the proclaimed offenders
and a detailed report as to the measures taken to procure the presence of the
said proclaimed offenders, namely, Navneet Singh, Manjit Singh, Manmohan Singh,
Gurjant Singh and Balwant Singh so that they may face trial.
However, after hearing
the matter on few dates, the Court vide order dated 5.10.2007 closed the
chapter of proclaimed offenders observing as under: "Since the police of U.T.
Chandigarh has now woken up, that the proclaimed offenders have to be brought
to justice and are making efforts to procure their presence, we feel that there
is no need for the Special Investigation Team (S.I.T.) The Inspector General of
Police, Union Territory, Chandigarh had been directed by this Court vide order dated
5.9.2007 to set up a Special Investigation Team (S.I.T.) for this purpose.
At this stage, now,
there is no need for this Special Investigation Team. The Inspector General of Police,
UT, Chandigarh is directed to disband the Special Investigation Team and proceed
as per law in the normal course to procure the presence of the proclaimed offenders,
who are allegedly in foreign countries." (Emphasis added) Therefore, it is
evident that the court was very much anxious to know about the proclaimed offenders,
however, after getting certain information, the Court stopped monitoring the
progress in procuring the presence of any of those proclaimed offenders.
By this time, the
Court also came to know that applicant Darshan Singh Multani's son had also
been killed. Therefore, the chapter regarding the proclaimed offenders was
closed. There was no occasion for the Court to proceed further with the matter and
entertain the applications under Section 482 Cr.P.C., filed by Darshan Singh
Multani and Davinder Pal Singh Bhullar.
At this stage, the
Court started probing regarding missing persons. The question does arise as to whether
applications under Section 482 Cr.P.C. could be entertained in a disposed of
appeal or could be heard by a Bench to which the roster has not been assigned
by Hon'ble the Chief Justice. In view of the law referred to hereinabove, the
Bench was not competent to entertain the said applications and even if the same
had been filed in the disposed of appeal, the court could have directed to 5place
the said applications before the Bench dealing with similar petitions.
is evident from the order dated 30.5.2007 that in spite of the fact that the appeal
stood disposed of vide judgment and order dated 11.5.2007, there appears an order
in the file: "put up for further hearing". That means the matter is to
be heard by the same Bench consisting of Judges `X' and `A'. However, the matter
was listed before another Bench on 2.7.2007 and the said Bench directed to list
the matter before DB-IV after taking the appropriate order from the Chief Justice.
In absence of the Chief
Justice, the senior most Judge passed the order on 5.7.2007 to list the matter
before the DB-IV. The matter remained with the Presiding Judge, though the other
Judge changed most of the time, as is evident from the subsequent order sheets.
Order sheet dated 30.5.2007 reveals that it was directed to put up the case for
further hearing. Thus, it should have been heard by the Bench as it was on
the counter affidavit filed by Davinder Pal Singh Bhullar, respondent no.1
before this Court, it has been stated as under: "W,X, Y&Z That in reply
to these grounds, it is submitted that the answering respondent being behind
the bars awaiting his death sentence moved an application through his counsel in
the Hon'ble High Court, when he came to know from the news item published in
the news paper regarding marking of CBI enquiry in the case of abduction of
Balwant Singh Multani an Engineer, son of Mr. Darshan Singh Multani a retired
IAS Officer, who was then a serving officer.
When the answering respondent
found that Mr. Sumedh Singh Saini has now been taken to task by the Hon'ble Division
Bench of Punjab and Haryana High Court, the answering respondent also moved the
Hon'ble High Court for seeking enquiry regarding the abduction and murder of
his father and his maternal uncle who were abducted by the lawless police officials
headed by Mr. Sumedh Singh Saini the then SSP of Chandigarh and the Hon'ble Bench
extended the scope of the enquiry vide order dated 6.11.2007.
So the delay is not worthy
to be taken note of as the past record of the Mr. Sumedh Singh Saini which has been
mentioned in preliminary submissions clearly shows that he was able to threaten
and overawe an Hon'ble Punjab and Haryana High Court Judge in year 1995 and
even though he has been charged by a court for abduction for murder of three individuals
in year 1995, but the trial of the case is still pending in the year 2008.
So throughout this
period the manner in which Mr. Sumedh Singh Saini has been able to subvert judicial
processes did not allow the respondent to move a court of law and now when an
Hon'ble Division Bench has shown courage to uphold the majesty of law, that the
respondent also gathered his courage to move the Hon'ble High Court, with the
hope that at some time justice would prevail." (Emphasis added)
far as the issue in respect of the proclaimed complainants/offenders is
concerned, the document was before the High Court to show that a letter had been
sent by the U.S Department of Justice Federal Wing of Investigation to the CBI disclosing
that Manmohan Jit Singh had died on December 2006. Thus, information in respect
of one of the proclaimed offenders was with the court. The judgment of the
Trial Court was before the High Court under challenge.
Thus, the High Court
could have taken note of the proclaimed offender and there was no new material
that came before the High Court on the basis of which proceedings could be revived.
The chargesheet in the Trial Court itself revealed that two persons had died. It
appears that the State counsel also failed to bring these facts to the notice
of the court.
impugned order dated 5.10.2007 though gives an impression that the High Court
was trying to procure the presence of the proclaimed offenders but, in fact, it
was to target the police officers, who had conducted the inquiry against Mr.
Justice X. The order reads that particular persons were eliminated in a false encounter
by the police and it was to be ascertained as to who were the police officers
responsible for it, so that they could be brought to justice.
could be no justification for the Bench concerned to entertain applications
filed under Section 482 Cr.P.C. as miscellaneous applications in a disposed of
appeal. The law requires that the Bench could have passed an appropriate order to
place those applications before the Bench hearing 482 Cr.P.C. petitions or place
the matters before the Chief Justice for appropriate orders.
the High Court after rejecting the applications for leave to appeal had passed several
orders to procure the presence of the proclaimed offenders so that they could
be brought to justice, neither the State of Punjab nor Mr. S.S. Saini could be
held to be the persons aggrieved by such orders and therefore, there could be
no question of raising any protest on their behalf for passing such orders even
after disposal of the application for leave to appeal as such orders were
rather in their favour.
The appellants became
aggrieved only and only when the High Court entertained the applications filed under
Section 482 Cr.P.C. for tracing out the whereabouts of certain persons allegedly
missing for the past 20 years. Such orders did not have any connection with the
incident in respect of which the application for leave to appeal had been
entertained and rejected.
An application for
leave to appeal that has been dismissed against an order of acquittal cannot
provide a platform for an investigation in a subject matter that is alien and not
directly concerned with the subject matter of appeal. Mr. K.N. Balgopal, learned
Senior counsel appearing for the respondents has submitted that the issue of
bias must be agitated by a party concerned at the earliest and it is not
permissible to raise it at such a belated stage.
The legal proposition
in this regard is clear that if a person has an opportunity to raise objections
and fails to do so, it would amount to waiver on his part. However, such person
can raise objections only if he is impleaded as a party-respondent in the case
and has an opportunity to raise an objection on the ground of bias. In the
instant case, neither the State of Punjab nor Mr. S.S. Saini have been
impleaded as respondents. Thus, the question of waiver on the ground of bias by
either of them does not arise.
in respect of such missing persons earlier habeas corpus petitions had been
filed by the persons concerned in 1991 and 1997 which had been dealt with by
the courts in accordance with law. The writ petition for habeas corpus filed by
Mrs. Jagir Kaur in respect of Balwant Singh Bhullar had been dismissed in 1997 only
on the ground of delay. We fail to understand how a fresh petition in respect of
the same subject matter could be entertained after 10 years of dismissal of the
said writ petition.
second writ petition for issuing a writ of habeas corpus is barred by
principles of res judicata. The doctrine of res judicata may not apply in case
a writ petition under Article 32 of the Constitution is filed before this Court
after disposal of a habeas corpus writ petition under Article 226 of the
Constitution by the High Court. However, it is not possible to re-approach the
High Court for the same relief by filing a fresh writ petition for the reason
that it would be difficult for the High Court to set aside the order made by
another Bench of the same court.
In case, a petition
by issuing Writ of Habeas Corpus is dismissed by the High Court and Special Leave
Petition against the same is also dismissed, a petition under Article 32 of the
Constitution, seeking the same relief would not be maintainable. (See: Ghulam
Sarwar v. Union of India & Ors., AIR 1967 SC 1335; Nazul Ali Molla, etc. v.
State of West Bengal, 1969 (3) SCC 698; Niranjan Singh v. State of Madhya Pradesh,
AIR 1972 SC 2215; Har Swarup v. The General Manager, Central Railway & Ors.,
AIR 1975 SC 202; T.P. Moideen Koya v. Government of Kerala & 5Ors., AIR 2004
SC 4733; and K. Vidya Sagar v. State of Uttar Pradesh & Ors., AIR 2005 SC
may be certain exceptions to the rule that a person was not aware of the
correct facts while filing the first petition or the events have arisen subsequent
to making of the first application. The Court must bear in mind that doctrine
of res judicata is confined generally to civil action but inapplicable to
illegal action and fundamentally lawless order. A subsequent petition of habeas
corpus on fresh grounds which were not taken in the earlier petition for the same
relief may be permissible. (Vide: Lalubhai Jogibhai Patel v. Union of India &
Ors., AIR 1981 SC 728; Ajit Kumar Kaviraj v. Distt. Magistrate, Birbhum &
Anr., AIR 1974 SC 1917; and Sunil Dutt v. Union of India & Ors., AIR 1982
dealing with a similar issue, this Court in Srikant v. District Magistrate,
Bijapur & Ors., (2007) 1 SCC 486 observed as under: "Whether any new
ground has been taken, has to be decided by the court dealing with the application
and no hard-and-fast rule can be laid down in that regard. But one thing is clear,
it is the substance and not the form which is relevant. If some surgical changes
are made with the context, substance and essence remaining the same, it cannot
be said that challenge is on new or fresh grounds".
in view of the above, the law in the issue emerges that a case is to be decided
on its facts taking into consideration whether really new issues have been
agitated or the facts raised in subsequent writ petition could not be known to
the writ petitioner while filing the earlier writ petition. Be that as it may,
the parties concerned had not filed fresh writ petitions, rather chosen, for reasons
best known to them applications under Section 482 Cr.P.C., which could not have
large number of documents have been submitted to the court under sealed cover
by the State of Punjab on the direction of this court. We have gone through the
said documents and suffice is to mention here that Shri Sumedh Singh Saini, IPS
had conducted the enquiry in 2002 against Mr. Justice X on the direction of the
Chief Justice of the Punjab and Haryana High Court on the alleged appointment
of certain judicial/executive officers in Punjab through Shri Ravi Sandhu,
Chairman of the Public Service Commission.
Shri S.S. Saini had
filed reports against Mr. Justice X. The Chief Justice of Punjab and Haryana
High Court confronted Mr. Justice X with the said reports. On the basis 6of the
said reports, the Chief Justice of the High Court submitted his report to the
Chief Justice of India, on the basis of which a Committee to investigate the
matter further was appointed. This Committee even examined one Superintendent
of Police of the intelligence wing who had worked directly under Shri S.S.
Saini while conducting the enquiry.
High Court has adopted an unusual and unwarranted procedure, not known in law, while
issuing certain directions. The court not only entertained the applications filed
by Shri Davinder Pal Singh Bhullar and Darshan Singh Multani in a disposed of
appeal but enlarged the scope of CBI investigation from proclaimed offenders to
other missing persons. The court directed the CBI to treat affidavits handed
over by the applicant Shri Bhullar who admittedly had inimical relation with
Shri S.S. Saini, as statement of eye-witnesses. The court further directed the CBI
to change the names of witnesses to witness (A), (B) or (C) and record their
statements under Section 164 Cr.P.C. so that they could not resile at a later
stage. We fail to understand how the court could direct the CBI to adopt such
an unwarranted course.
High Court accepted certain documents submitted by Shri R.S. Bains, advocate,
as is evident from the order dated 22.8.2007 and 6it was made a part of the record
though Shri Bains had not been a counsel engaged in the case nor he had been representing
any of the parties in the case.
the matter came up for hearing on 2.4.2008, in spite of the fact that the
matter was heard throughout by a particular Division Bench, Mr. Justice X alone
held the proceedings, and accepted the status report of the CBI sitting singly,
as the proceedings reveal that the other Judge was not holding court on that
day. The order sheet dated 2.4.2008 reads as under: "Status report, which
has been presented by the CBI in Court in a sealed cover, is taken in custody. Hon'ble
Mr. Justice Harbans Lal, who has to hear the case along with me, as it is a part-heard
case, is not holding court today. To come up on 4.4.2008. Sd/- Judge"
FIR unquestionably is an inseparable corollary to the impugned orders which are
a nullity. Therefore, the very birth of the FIR, which is a direct consequence
of the impugned orders cannot have any lawful existence. The FIR itself is
based on a preliminary enquiry 6which in turn is based on the affidavits
submitted by the applicants who had filed the petitions under Section 482
order impugned has rightly been challenged to be a nullity at least on three
grounds, namely, judicial bias; want of jurisdiction by virtue of application
of the provisions of Section 362 Cr.P.C. coupled with the principles of
constructive res judicata; and the Bench had not been assigned the roster to
entertain petitions under Section 482 Cr.P.C. The entire judicial process
appears to have been drowned to achieve a motivated result which we are unable
to approve of.
is a settled legal proposition that if initial action is not in consonance with
law, all subsequent and consequential proceedings would fall through for the
reason that illegality strikes at the root of the order. In such a fact-situation,
the legal maxim "sublato fundamento cadit opus" meaning thereby that foundation
being removed, structure/work falls, comes into play and applies on all scores in
the present case.
Badrinath v. State of Tamil Nadu & Ors., AIR 2000 SC 3243; and State of
Kerala v. Puthenkavu N.S.S. Karayogam & Anr., (2001) 10 SCC 191, this Court
observed that once the basis of a proceeding is gone, all consequential acts,
actions, orders would fall to the ground automatically and this principle is applicable
to judicial, quasi-judicial and administrative proceedings equally.
in Mangal Prasad Tamoli (dead) by Lrs. v. Narvadeshwar Mishra (dead) by Lrs.
& Ors., (2005) 3 SCC 422, this Court held that if an order at the initial stage
is bad in law, then all further proceedings, consequent thereto, will be non
est and have to be necessarily set aside.
C. Albert Morris v. K. Chandrasekaran & Ors., (2006) 1 SCC 228, this Court
held that a right in law exists only and only when it has a lawful origin.(See
also: Upen Chandra Gogoi v. State of Assam & Ors., (1998) 3 SCC 381; Satchidananda
Misra v. State of Orissa & Ors., (2004) 8 SCC 599; Regional Manager, SBI v.
Rakesh Kumar Tewari, (2006) 1 SCC 530; and Ritesh Tewari & Anr. v. State of
U.P. & Ors., AIR 2010 SC 3823).
in view of the above, we are of the considered opinion that the orders impugned
being a nullity, cannot be sustained. As a consequence, subsequent proceedings/orders/FIR/
investigation stand automatically vitiated and are liable to be declared non
submission advanced on behalf of the respondents that as the Special Leave Petition
filed against the impugned judgment by some other party, stood dismissed by
this Court, these matters also have to be dismissed at the threshold without
entering into merit, is not worth acceptance.
The issue as to whether
the dismissal of the special leave petition by this Court in limine, i.e., by a
non-speaking order would amount to affirmation or confirmation or approval of the
order impugned before this Court, has been considered time and again.
Thus, the issue is no
more res integra. A large number of judicial pronouncements made by this Court
leave no manner of doubt that the dismissal of the Special Leave Petition in
limine does not mean that the reasoning of the judgment of the High Court
against which the Special Leave Petition had been filed before this Court
stands affirmed or the judgment and order impugned merges with such order of this
Court on dismissal of the petition. It simply means that this Court did not
consider the case worth examining for a reason, which may be other than merit of
An order rejecting the
Special Leave Petition at the threshold without detailed 6reasons, therefore, does
not constitute any declaration of law or a binding precedent. The doctrine of res
judicata does not apply, if the case is entertained afresh at the behest of other
parties. No inference can be drawn that by necessary implication, the contentions
raised in the special leave petition on the merits of the case have been
rejected. So it has no precedential value.
(See: The Workmen of
Cochin Port Trust v. The Board of Trustees of the Cochin Port Trust & Anr.,
AIR 1978 SC 1283; Ahmedabad Manufacturing & Calico Printing Co. Ltd. v. The
Workmen & Anr., AIR 1981 SC 960; Indian Oil Corporation Ltd. v. State of
Bihar & Ors., AIR 1986 SC 1780; Yogendra Narayan Chowdhury & Ors. v.
Union of India & Ors., AIR 1996 SC 751; Union of India & Anr. v. Sher
Singh & Ors., AIR 1997 SC 1796; M/s Sun Export Corporation, Bombay v. Collector
of Customs, Bombay & Anr., AIR 1997 SC 2658; Kunhayammed & Ors. v. State
of Kerala & Anr., AIR 2000 SC 2587; Saurashtra Oil Mills Association,
Gujarat v. State of Gujarat & Anr., AIR 2002 SC 1130; Union of India &
Ors. v. Jaipal Singh, AIR 2004 SC 1005; and Delhi Development Authority v.
Bhola Nath Sharma (dead) by L.Rs. & Ors., AIR 2011 SC 428).CONCLUSIONS :
error in the impugned orders of the High Court transgresses judicious discretion.
The process adopted by the High Court led to greater injustice than securing
the ends of justice. The path charted by the High Court inevitably reflects a biased
approach. It was a misplaced sympathy for a cause that can be termed as being
inconsistent to the legal framework.
Law is an endless process
of testing and retesting as said by Justice Cardozo in his conclusion of the Judicial
Process, ending in a constant rejection of the dross and retention of whatever is
pure and sound. The multi-dimensional defective legal process adopted by the
court below cannot be justified on any rational legal principle. The High Court
was swayed away by considerations that are legally impermissible and
view of the above, the appeals succeed and are accordingly allowed. The impugned
orders challenged herein are declared to be nullity and as a consequence, the FIR
registered by the CBI is also quashed.
it is open to the applicants who had filed the petitions under Section 482 Cr.P.C.
to take recourse to fresh proceedings, if permissible in law.
(Dr. B.S. CHAUHAN)