Gokaraju Rangaraju Vs. State of Andhra
Pradesh [1981] INSC 93 (15 April 1981)
REDDY, O. CHINNAPPA (J) REDDY, O. CHINNAPPA
(J) SEN, A.P. (J) ISLAM, BAHARUL (J)
CITATION: 1981 AIR 1473 1981 SCR (3) 474 1981
SCC (3) 132 1981 SCALE (1)706
CITATOR INFO :
R 1983 SC 194 (51) R 1987 SC 454 (10) R 1987
SC1748 (18,19) R 1987 SC2111 (12) R 1988 SC 162 (20) RF 1990 SC1480 (76)
ACT:
De facto doctrine-Nature and scope
of-Appointment of District Judge declared void-Judgment rendered by him,
whether becomes void.
Interpretation of Statutes-Abundans cautela
non nocet when applied-Legislature, whether makes superfluous legislation.
HEADNOTE:
The appellants in both the appeals were
convicted of certain offences by two District Judges.' By the time the appeals
went up for hearing to the High Court, the appointment of the two District
Judges was quashed by this Court as being in violation of Article 233 of the
Constitution.
The appellants contended before the High
Court that having regard to the fact that the Supreme Court had quashed the
appointment of District Judges, the judgments rendered by them in these two
cases became void. The High Court, rejecting the contention, held that since
the District Judges held office under lawful authority, the judgments rendered
by them during the tenure of their office were valid and that in any event the
validity of the judgments could not be questioned in collateral proceedings.
In appeal to this Court it was contended that
trial by a Sessions Judge appointed in violation of Article 233 was not a trial
by a Sessions Judge duly appointed to exercise jurisdiction in a Court of
Sessions under section 9, Cr.P.C.
and that the appellants' liberty was being
taken away otherwise than in accordance with the procedure established by law
and that the Constitution (Twentieth Amendment) Act, 1966 would be a surpluses
if the de facto doctrine was applied to judgments rendered by persons appointed
as District Judges contrary to the provisions of Article 233 of the
Constitution Dismissing the appeals, ^
HELD: The two Judges who gave the judgments
in the two cases were not usurpers or intruders but were persons who discharged
the functions and duties of Judges under colour of lawful authority. So long as
an office is validity created it matters not that the incumbent was not
validity appointed. A person appointed to a post of Sessions Judge would be
exercising jurisdiction in the 475 Court of Session and his judgments and
orders would be those of that court and would continue to be valid notwithstanding
that his appointment to such court might be declared invalid. On that account
alone it cannot be said that the procedure prescribed by law had not been
followed. [487 E-F] Milward v. Thatsher [1787] 2 T. R. 81 @ 87, Seaddling v.
Lorant [1851] 3 HLC 418, re. James (An Insolvent) [1977] 2 W.L.R. 1, Norton v.
Shelby Counrty [1886] 118 US 425-30 Law Ed. 178; referred to.
The doctrine of de facto envisages that acts
permitted de facto by the officers within the scope of their assumed official
authority, in the interest of the public or third persons and not for their own
benefit, are generally as valid and binding as if they were the acts of
officers de jure [478 H] The de facto doctrine is founded on good sense, sound
policy and practical expedience. It is aimed at the prevention of public and
private mischief and protection of public and private interest. It avoids
endless confusion and needless chaos. An illegal appointment may be set aside
and a proper appointment may be made but the acts of those who hold office de
facto are not so easily undone. They may have lasting repercussions and
confusing sequels if attempted to be undone. [479 B] Pulin Behari v. King
Emperor [1912] 15 Cal Law Journal 517 @ 574, Immedisetti Ramkrishnaiah Sons v.
State of Andhra Pradesh and Anr AIR 1976 A.P 193; referred to.
A defective appointment of a de facto judge
cannot be permitted to be questioned in a litigation between two private
litigants. If this were not so, so soon as a Judge pronounces a judgment
litigation may be commended for a declaration that the judgment was void
because the judge was no judge. To question a Judge's appointment in an appeal
against his judgment is such a collateral attack. [485 B-C] The de facto
doctrine saves acts done by a Judge whose appointment has later been declared
void, from being invalidated. The doctrine is recognised in Article 71(2)
(which declares that acts done by the President in the exercise of his powers
shall not be invalidated by reason of the election being declared void) and section
107(2) of the Representation of the People Act, 1951 (which provides that acts
of a reason participating as member of Parliament or a State Legislature shall
not be declared invalid by reason of his election being declared void). The
doctrine, therefore, is no stranger to the Constitution and the laws. [485 E-F]
The Constitution (Twentieth Amendment) Act, 1966 is an instance where the de
facto doctrine was applied to remove and taint of illegality being attributed
to the judgments or orders passed by District Judges appointed before 1966
otherwise than in accordance with the provisions of Articles 233 and 235 of the
Constitution and which appointments were declared invalid by this Court in
Chandra Mohan v. State of U.P., [1967] 1 SCR 77. [485 H] 476 It is not a
necessary inference from the Twentieth Amendment That but for that amendment
the judgments, decrees etc. Of those District Judges would have been void. As a
general rule Parliament may be presumed not to make superfluous legislation.
But This presumption is not a strong presumption in that it is not uncommon to
find statutes containing provisions introduced because abundas cautela non
nocet (there is no harm in being cautious). [486 C-D] The statutory reiteration
of the law, a clear judicial pronouncement on a subject notwithstanding, only
leads to the inference that The statute making body, though mindful of the real
state of the law, was acting under the influence of excessive caution. The
Constitution (Twentieth Amendment) Act, 1966 is one such instance. [486 E-F]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 234 of 1976.
Appeal by special leave from the judgment and
order dated the 5th December, 1975 of the Andhra Pradesh High Court in Criminal
Revision Case No. 816 of 1974 (Criminal Revision Petition No. 732 of 1974).
AND Criminal Appeal Nos. 315 and 316 of 1976.
Appeals by special leave from the judgment
and order dated the 12th April, 1976 of the Andhra Pradesh High Court in
Criminal Appeal Nos. 31 O & 311 of 1975.
P. Govindan Nair and A. Subba Rao for the
Appellant in Crl. A. No. 234/76.
M. N. Phadke, and B. Kanta Rao for the
Appellant in Crl. A. Nos.315 & 316 of 1976.
G. N. Rao for the Respondent in all the
appeals.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. What is the effect of the declaration by the Supreme Court
that the appointment of an Additional Sessions Judge was invalid on judgments
pronounced by the Judge prior to such declaration is the question for
consideration in these criminal appeals. The question may seem to be short and
simple but it cannot be answered without enquiry and research. An answer, on
first impression, may be 'a judgment by a judge who is not a judge is no
judgment'' a simple, sophisticated answer. But it appears 477 second thoughts
are necessary. What is to happen to titles settled, declarations made, rules
issued, injunctions and decrees granted and even executed ? What is to happen
to sentences imposed ? Are convicted offenders to be set at liberty and to be
tried again '! Are acquitted accused to be arrested and tried again ? Public
Policy is clearly involved. And, in the tangled web of human affairs, law must
recognise some consequences as relevant, not on grounds of pure logic but for
reasons of practical necessity. To clear the confusion and settle the chaos,
judges have invented the de facto doctrine, which we shall presently examine.
de facto doctrine is thus a doctrine of necessity and public policy.
Crl. A. No. 234 of 1976 arises out of a
proceeding under S.6A of the Essential Commodities Act, by which the District
Revenue officer West Godavari, Andhra Pradesh, ordered the confiscation of Rs.
203.74 kgs. Of paddy and Rs. 302.25 kgs. of rice. The appellant, Gokaraju
Rangaraju, preferred an appeal under S. 6C of the Essential Commodities Act to
the Court of Session, West Godavari. The appeal was heard by Shri G. Anjappa,
Additional Sessions Judge and was rejected. The appellant preferred a Criminal
Revision Petition before the High Court of Andhra Pradesh. Criminal Appeal Nos.
315 and 316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of
Session, Guntur Division' The case was heard and the judgment was pronounced by
Shri Raman Raj Saxena, II Additional Sessions Judge, Guntur. The convicted
accused preferred appeals to the High Court of Andhra Pradesh. By the time the
Criminal Revision case filed by Gokaraju Rangaraju and the Criminal Appeals
filed by the appellants in Crl. Appeals Nos. 315 and 316 of 1976 came up for
hearing before the High Court of Andhra Pradesh, this Court by its judgment
dated 2nd September 1975 quashed the appointment of Shri G. Anjappa, Shri Raman
Raj Saxena and two others as District Judges Grade II, on the ground that their
appointment was in violation of the provisions of Art.
233 of the Constitution. Thereupon a point
was raised in the Criminal Revision case as well as in the Criminal Appeals
that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void
and required to be set aside. The High Court overruled the point raised by the
present appellants and held that though the appointment of Shri Anjappa and
Shri Raman Raj Saxena as District Judges Gr. II was invalid, yet they were not
mere usurpers but had held office under lawful H authority and therefore, the
judgments rendered by them were valid and could not be questioned in collateral
proceedings. The present 478 appeals have been preferred by special leave
granted by this Court. In Criminal Appeals Nos. 315 and 316 of 1976, however,
the special leave granted by this Court was limited by the order granting leave
to the question whether the judgments rendered by Sessions Judges were void
where their appointment as Sessions Judges was subsequently declared illegal.
Shri Govindan Nayar learned counsel for the
appellants in Crl. A. No. 234 of 1976 and Shri Phadke, learned counsel for the
appellants in Crl. Appeals Nos. 315 & 316 of 1976, argued before us that
the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void as
they were never duly appointed as District Judges. It was urged that there was
no need for them to question the appointment of Shri Anjappa or Shri Kaman Raj
Saxena as their appointment had already been quashed by the Supreme Court. It
was said that the de facto doctrine was based on public policy and necessity
and that in the present case neither public policy or necessity required that
the judgments should not be set aside. No inconvenience would be caused by
ordering a rehearing of the appeals or a retrial of the accused. It was also urged
that the attack, if any, on the appointment of Shri Anjappa and Shri Raman Raj
was not collateral attack. It was submitted that a question of jurisdiction
could be raised at any stage in a criminal case and a trial by a Sessions Judge
who was appointed in violation of Art. 233 was not a trial by a Sessions Judge
duly appointed to exercise jurisdiction in a Court of Session under S. 9 of the
Code of Criminal Procedure. It was argued that the de facto doctrine was not an
absolute doctrine. It was subject to certain limitations.
One such limitation was that imposed by Art.
233 of the Constitution. A person appointed as a District Judge contrary to the
provisions of Art. 233 was no judge and his judgments were no judgments. It was
submitted that the 20th Amendment of the Constitution would be a surplusage if
the de facto doctrine was to be applied to judgments rendered by persons
appointed as District Judges contrary to the provisions of Art. 233 of the
Constitution. It was also suggested that the Fundamental Right of the
appellants under Art. 21 of the Constitution was violated as their liberty was
being taken away otherwise than in accordance with the procedure established by
law.
We are unable to agree with the submissions
of the learned counsel for the appellants. The doctrine is now well established
that "the acts of the officers de facto performed by them within the scope
of their assumed official authority, in the interest of the public 479 or third
persons and not for their own benefit, are generally as valid and binding, as
if they were the acts of officers de jure" (Pulin Behari v. King Emperor).
As one of us had occasion to point out earlier "the doctrine is founded on
good sense, sound policy and practical experience. It is aimed at the
prevention of public and private mischief and the protection of public and
private interest. It avoids endless confusion and needless chaos. An illegal
appointment may be set aside and a proper appointment may be made, but the acts
of those who hold office de facto are not so easily undone and may have lasting
repercussions and confusing sequels if attempted to be undone. Hence the de
facto doctrine" (vide Immedisetti Ramkriashnaiah Sons v. State of Andhra
Pradesh and Anr.
In Pulin Behari v. King Emperor, (Supra) Sir
Ashutosh Mukerjee J. noticed that in England the de facto doctrine was
recognised from the earliest times. The first of the reported cases where the
doctrine received judicial recognition was the case of Abbe of Fountaine
decided in 1431. Sir Ashutosh Mookerjee noticed that even by 1431 the de facto
doctrine appeared to be quite well known and, after 1431, the doctrine was
again and again reiterated by English Judges.
In Milward v. Thatcher, Buller J. said:
"The question whether the judges below
be properly judges or not. can never be determined, it is sufficient if they be
judges de facto. Suppose a person were even criminally convicted in a Court of
Record, and the Recorder of such Court were not duly elected, the conviction
would still be good in law, he being the judge de facto".
In Seaddling v. Lorant, the question arose
whether a rate for the relief of the poor was rendered invalid by the
circumstance that some of the vestry men who made it were vestry men de facto
and not de jure. The Lord Chancellor observed as follows:
With regard to the competency of the vestry
men, who were vestry men de facto, but not vestry men de jure, to make the
rate, your Lordships will see at once the impor- 480 tance of that objection,
when you consider how many public officers and persons there are who were
charged with very important duties, and whose title to the office on the part
of the public cannot be ascertained at the time. You will at once see to what
it would lead if the validity of their acts, when in such office, depended upon
the propriety of their election. It might tend, if doubts were cast upon them,
to consequences of the most destructive kind. It would create uncertainty with
respect to the obedience to public officers and it might also lead to persons,
instead of resorting to ordinary legal remedies to set right anything done by
the officers, taking the law into their own hands".
Some interesting observations were made by
the Court of Appeal in England in re James (An Insolvent). Though the learned
Judges constituting the Court of Appeal differed on the principal question that
arose before them namely whether "the High Court of Rhodesia" was a
British Court, there did not appear to be any difference of opinion on the
question of the effect of the invalidity of the appointment of a judge on the
judgments pronounced by him. Lord Denning M.
R., characteristically, said: "He sits
in the seat of a judge. He wears the robes of a judge. He holds the office of a
judge. May be he was not validly appointed. But, still, he holds the office. It
is the office that matters, not the incumbent ....... so long as the man holds
the office and exercises it duly and in accordance with law, his orders are not
a nullity. If they are erroneous they may be upset on appeal. But if not
erroneous they should be upheld". Lord Denning then proceeded to refer to
the State of Connecticut v. Carroll decided by the Supreme Court of
Connecticut, Re Aldridge decided by the Court of Appeal in New Zealand and
Norton v. Shelby County decided by the United States Supreme Court.
Observations made in the last case were extracted and they were:
"Where an office exists under the law,
it matters not how the appointment of the incumbent is made, so far as the
validity of his acts are concerned. It is enough that he is clothed with the
insignia of the office, and exercises its powers and functions.. The official
acts of such persons are recognised as valid on grounds of public policy, and
for the protection of those having official business to transact." 481
Scarman LJ who differed from Lord Denning on the question whether the High
Court of Rhodesia was a British Court appeared to approve the view of Lord
Denning M. R. in regard to the de facto doctrine. He said:
"He (Lord Denning) invokes the doctrine of
recognition of the de facto judge, and the doctrine of implied mandate or
necessity. I agree with much of the thinking that lies behind his judgment. I
do think that in an appropriate case our courts will recognise the validity of
judicial acts, even though they be the acts of a judge not lawfully appointed
or derive their authority from an unlawful government. But it is a fallacy to
conclude that, because in certain circumstances our Courts would recognise as
valid the judicial acts of an unlawful court or a de facto judge, therefore,
the Court thus recognised is a British Court".
The de facto doctrine has received judicial
recognition in the United States of America also. In State v. Gardner (Cases on
Constitutional Law by Mc. Gonvey and Howard Third Edition 102) the question
arose whether the offer of a bribe to a City Commissioner whose appointment was
unconstitutional was an offence. Broadbury, J. said.
"We think that principle of public
policy, declared by the English Courts three centuries ago, which gave validity
to the official acts of persons who intruded themselves into an office to which
they had not been legally appointed, is as applicable to the conditions now
presented as they were to the conditions that then confronted the English
Judiciary. We are not required to find a name by which officers are to be
known, who have acted under a statute that has subsequently been declared
unconstitutional, though we think such officers might aptly be called de facto
officers." In Norton v. Shelby Country, Field, J., observed as follows:
"The doctrine which gives validity to
acts of officers de facto whatever defects there may be in the legality of
their appointment or election is founded upon considerations of policy and
necessity, for the protection of the public and individuals whose interests may
be affected thereby. Offices are created for the benefit of the public, and
private parties are not permitted to inquire into the title of persons clothed
with the evidence of such offices and in apparent possession of their powers
and functions. For the good order and peace of society their authority is to be
respected and obeyed until in some regular mode prescribed by law their title
is investigated and determined. It is manifest that endless confusion would
result, if in every proceeding before such officers their title could be called
in question." In Cooley's 'Constitutional Limitations', Eighth Edition,
Volume II p. 1 355, it is said, "An officer de facto is one who by some
colour or right is in possession of an office and for the time being performs
its duties with public acquiescence, though having no right in fact. His colour
of right may come from an election or appointment made by some officer or body
having colourable but no actual right to make it; or made in such disregard of
legal requirements as to be ineffectual in law; or made to fill the place of an
officer illegally re-moved or made in favour of a party not having the legal
qualifications; or it may come from public acquiescence in the qualifications;
or it may come from public acquiescence in the officer holding without
performing the precedent conditions, or holding over under claim of right after
his legal right has been terminated; or possibly from public acquiescence alone
when accompanied by such circumstances of official reputation as are calculated
to induce people, without inquiry, to submit to or invoke official action on
the supposition that the person claiming the office is what he assumes to be.
An intruder is one who attempts to perform the duties of an office without
authority of law, and without the support of public acquiescence.
No one is under obligation to recognise or
respect the acts of an intruder, and for all legal purposes they are absolutely
void. But for the sake of order and regularity, and to prevent confusion in the
conduct of public business and in security of private rights, the acts of
officers de facto are not suffered to be questioned because of the want of
legal authority except by some direct proceeding instituted for 483 the purpose
by the State or by someone claiming the office de jure, or except when the
person himself attempts to build up some right, or claim some privilege or
emolument, by reason of being the officer which he claims to be. In all other
cases the acts of an officer de facto are as valid and effectual, while he is
suffered to retain the office, as though he were an officer by right, and the
same legal consequences will flow from them for the protection of the public
and of third parties. There is an important principle, which finds concise
expression in the legal maxim that the acts of officers de facto cannot be
questioned collaterally." In Black on judgments it is said:
"A person may be entitled to his
designation although he is not a true and rightful incumbent of the office, yet
he is no mere usurper but holds it under colour of lawful authority. And there
can be no question that judgments rendered and other acts performed by such a
person who is ineligible to a judgeship but who has nevertheless been duly
appointed, and who exercises the power and duties of the office is a de facto
judge, and his acts are valid until he is properly removed." The de facto
doctrine has been recognised by Indian Courts also. In Pulin Behari v. King Emperor,
Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England
observed as follows:
"The substance of the matter is that the
de facto doctrine was introduced into the law as a matter of policy and
necessity, to protect the interest of the public and the individual where these
interests were involved in the official acts of persons exercising the duties
of an office without being lawful officers. The doctrine in fact is necessary
to maintain the supremacy of the law and to preserve peace and order in the
community at large. Indeed, if any individual or body of individuals were
permitted, at his or their pleasure, to collaterally challenge the authority of
and to refuse obedience to the Government of the State and the numerous functionaries
through whom it exercised its various 484 powers on the ground of irregular
existence or defective title, insubordination and disorder of the worst kind
would be encouraged. For the good order and peace of society, their authority
must be upheld until in some regular mode their title is directly investigated
and determined." In P. S. Menon v. State of Kerala and Ors. a Full Bench
of the Kerala High Court consisting of P. Govindan Nair, K.K. Mathew and T.S.
Krishnamoorthy Iyer, JJ said about the de facto doctrine:
"This doctrine was engrafted as a matter
of policy and necessity to protect the interest of the public and individual
involved in the official acts of persons exercising the duty of an officer
without actually being one in strict point of law. But although these officers
are not officers de jure they are by virtue of the particular circumstances,
officers, in fact, whose acts, public policy requires should be considered
valid".
In the judgment under appeal Kuppuswami and
Muktadar, JJ observed:
"Logically speaking if a person who has
no authority to do so functions as a judge and disposes of a case the judgment
rendered by him ought to be considered as void and illegal, but in view of the
considerable inconvenience which would be caused to the public in holding as
void judgments rendered by judges and other public officers whose title to the
office may be found to be defective at a later date. Courts in a number of
countries have, from ancient times evolved a principle of law that under certain
conditions, the acts of a judge or officer not legally competent may acquire
validity".
A judge, de facto, therefore, is one who is
not a mere intruder or usurper but one who holds office, under colour of lawful
authority, though his appointment is defective and may later be found to be
defective. Whatever be the defect of his title to the office, judgments
pronounced by him and acts done by him when he was clothed with the powers and
functions of the office, albeit unlawfully, have the same efficacy as judgments
pronounced and acts done by a Judge de 485 jure. Such is the de facto doctrine,
born of necessity and public policy to prevent needless confusion and endless
mischief. There is yet another rule also based on public policy. The defective
appointment of a de facto judge may be questioned directly in a proceeding to
which he be a party but it cannot be permitted to be questioned in a litigation
between two private litigants, a litigation which is of no concern or
consequence to the judge except as a judge. Two litigants litigating their
private titles cannot be permitted to bring in issue and litigate upon the
title of a judge to his office. Otherwise so soon as a judge pronounces a
judgment a litigation may be commended for a declaration that the judgment is
void because the judge is no judge. A judge's title to his office cannot be
brought into jeopardy in that fashion. Hence the rule against collateral attack
on validity of judicial appointments. To question a judge's appointment in an
appeal against the judgment is, of course, such a collateral attack.
We do not agree with the submission of the
learned counsel that the de facto doctrine is subject to the limitation that
the defect in the title of the judge to the office should not be one traceable
to the violation of a constitutional provision. The contravention of a
constitutional provision may invalidate an appointment but we are not concerned
with that. We are concerned with the effect of the invalidation upon the acts
done by the judge whose appointment has been invalidated. The de facto doctrine
saves such Acts. The de facto doctrine is not a stranger to the Constitution or
to the Parliament and the Legislatures of the States. Art. 71(2) of the
Constitution provides that acts done by the President or Vice President of
India in the exercise and performance of the powers and duties of his office
shall not be invalidated by reason of the election of a person as President or
Vice President being declared void. So also Sec. 107(2) of the Representation of
the People Act 1951 (Act 43 of 1951) provides that acts and proceedings in
which a person has participated as a Member of Parliament or a Member of the
Legislature of a State shall not be invalidated by reason of the election of
such person being declared to be void. There are innumerable other
Parliamentary and State Legislative enactments which are replete with such
provisions. The Twentieth Amendment of the Constitution is an instance where
the de facto doctrine was applied by the Constituent body to remove any
suspicion or taint of illegality, or invalidity that may be argued to have
attached itself to judgment, decrees sentences or orders passed or made by
certain District Judges appointed before 1966, otherwise than in accordance
with the provision of Art. 233 and Art 235 of 486 the Constitution. The
Twentieth Amendment was the consequence of the decision of the Supreme Court in
Chandra Mohan v. State of Uttar Pradesh and Ors., that appointments of District
Judges made otherwise than in accordance with the provisions of Arts. 233 and
235 were invalid. As such appointments had been made in many States, in order
to preempt mushroom litigation springing up all over the country, it was
apparently thought desirable that the precise position should be stated by the
Constituent body by amending the Constitution. Shri Phadke, learned counsel for
the appellants, argued that the constituent body could not be imputed with the
intention of making superfluous amendments to the Constitution. Shri Phadke
invited us to say that it was a necessary inference from the Twentieth
Amendment of the Constitution that, but for the amendment, the judgments,
decrees etc. of the District Judges appointed otherwise than in accordance with
the provisions of Art. 233 would be void. We do not think that the inference
suggested by Shri Phadke is a necessary inference. It is true that as a general
rule the Parliament may be presumed not to make superfluous legislation. The
presumption is not a strong presumption and statutes are full of provisions
introduced because abundans cautela non nocet (there is no harm in being
cautious). When judicial pronouncements have already declared the law on the
subject, the statutory reiteration of the law with reference to the particular
cases does not lead to the necessary inference that the law declared by the
judicial pronouncements was not thought to apply to the particular cases but
may also lead to the inference that the statute-making body was mindful of the
real state of the law but was acting under the influence of excessive caution
and so to silence the voices of doubting Thomases by declaring the law declared
by judicial pronouncements to be applicable also to the particular cases. In
Chandra Mohan' case (Supra) this Court held that appointments of District
Judges made otherwise than in accordance with Art. 233 of the Constitution were
invalid. Such appointments had been made in Uttar Pradesh and a few other
States. Doubts had been cast upon the validity of the judgments, decrees etc.
pronounced by those District Judges and large
litigation had cropped up. It was to clear those doubts and not to alter the
law that the Twentieth Amendment of the Constitution was made. This is clear
from the statement of objects and reasons appended to the Bill which was passed
as Constitution (20th Amendment) Act. 1966. The statement said:
487 "Appointments of District Judges in
Uttar Pradesh and a few other States have been rendered invalid and illegal by
a recent judgment of the Supreme Court on the ground that such appointments
were not made in accordance with the provisions of Art. 233 of the
Constitution.... As a result of these judgments, a serious situation has arisen
because doubt has been thrown on the validity of the judgments, decrees, orders
and sentences passed or made by these District Judges and a number of Writ
Petitions and other cases have already been filed challenging their validity.
The functioning of the District Courts in Uttar Pradesh has practically come to
a stand-still. It is, therefore, urgently necessary to validate the judgments,
decrees, orders and sentences passed or made heretofore by all such District
Judges in those States......" In our view, the de facto doctrine furnishes
an answer to the submissions of Shri Phadke based on Sec. 9 Criminal Procedure
Code and Art. 21 of the Constitution. The judges who rejected the appeal in one
case and convicted the accused in the other case were not mere usurpers or
intruders but were persons who discharged the functions and duties of judges under
colour of lawful authority. We are concerned with the office that the judges
purported to hold.
We are not concerned with the particular
incumbents of the office. So long as the office was validly created, it matters
not that the incumbent was not validly appointed. A person appointed as a
Sessions Judge, Additional Sessions Judge or Assistant Sessions Judge, would be
exercising jurisdiction in the Court of Session, and his judgments and orders
would be those of the Court of Session. They would continue to be valid as the
judgments and orders, of the Court of Session, notwithstanding that his
appointment to such Court might be declared invalid. On that account alone, it
can never be said that the procedure prescribed by law has not been followed.
It would be a different matter if the constitution of the Court itself is under
challenge. We are not concerned with such situation in the instant cases. We,
therefore, find no force in any of the submissions of the learned counsel.
Shri Govindan Nair attempted to argue that
the confiscation was not justified on the merits. We find no reason to
interfere with 488 the concurrent findings of fact arrived at by the lower
Courts. Shri Phadke requested us to widen the scope of the appeals and to
permit him to canvas the correctness of the convictions and sentences also. We
declined to do so. All the appeals are dismissed.
P.B.R Appeals dismissed.
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