ASHIQ HUSSAIN FAKTOOversusUNION OF INDIA & ORS.

                             [2016) 5 S.C.R. 884



A                      ASHIQ HUSSAIN FAK TOO
                                      v.
                        UNION OF INDIA & ORS.
                  (Writ Petition (Criminal) No. 46 OF 2008)
B                            AUGUST 30, 2016
            [RANJAN GOGOi, PRAFULLA C. PANT AND
                   A.M. KHANWILKAR, JJ.]
          Constitution of India - Art. 32 - Conviction and sentence of
    life imprisonment by Supreme Court in appeal u/s.3 of TADA Act
c   and s.302 rlw. s.J 20B !PC- Review petition dismissed- Writ petition
    filed by convict u!Art. 32 of the Constitution seeking interference
    with the order of conviction and sentence on the principle of ex-
    debito justitiae - Maintainability - Held: The present writ petition ul
    Art. 32 does not fit into any of the permissible categories of post
D   conviction exercises permissible in law as laid down by Supreme
    Court - Merely because in the comprehension of the writ petitioner
    the judgment of the Supreme Court is erroneous would not enable
    the Court to reopen the issue in departure to the established and
    settled norms and parameters of the extent of permissible exercise
    ofjurisdiction as well as the procedural law governing such exercise
E
    - Terrorist and Disruptive Activities (Prevention) Act, 1987- s.3 -
    Penal Code, 1860 - s.302 rlw s.120B.
           Doctrine of ex debito justitiae - Applicability of - Held:
    Principle of ex debito justitiae is founded on a recognition of a debt
    that the justice delivery system owes to a litigant to correct an error
F   in· a judicial dispensation - Its application, by the very nature of
    things, cannot be made to depend on varying perceptions of legal
    omissions and commissions but such recognition of the debt which
    have the potential of opening new vistas of exercise jurisdiction to
    retook concluded cases, must rest on surer foundations which have
G   been discerned and expressed by Supreme Court in Rupa Ashok
    Hurra case - Maxims - Curative petition - Supreme Court Rules,
    2013- 0. XLVlll.
          Dismissing the writ petition, the Court
        · HELD: The principle of ex debito justitiae is founded on a
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                                    884
   ASHIQ HUSSAIN FAK TOO v. UNION OF INDIA & ORS.                      885


recognition of a debt that the justice delivery system owes to a A
litigant to correct an error in a judicial dispensation. Its application,
by the very nature of things, cannot be made to depend on varying
perceptions of legal omissions and commissions but such
recognition of the debt which have the potential of opening new
vistas of exercise jurisdiction to relook concluded cases, must · B
rest on surer foundations which have been discerned and
expressed by this Court in Rupa As/wk Hurra case*. Frantic cries
of injustice founded on perceived erroneous application of law or
appreciation of facts will certainly not be enough to extend the
frontiers of this jurisdiction. The present writ petition by the
convict under Article 32 of the Constitution of India by no stretch c
of reasoning would fit into any of the permissible categories of
post conviction exercises permissible in law as laid down by this
Court. The doctrine of ex debito justitiae being circumscribed
by the judgment of this Court in Rupa As/wk Hurra it is for the
petitioner to exhaust the said remedy, if is he-solficlined and so
                                                                          D
advised. Merely because in the comprehension of the writ
petitioner the judgment of this Court is erroneous would not
enable the Court to reopen the issue in departure to the
established and settled norms and parameters of the extent of
permis'sible exercise of jurisdiction as well as the procedural law
governing such exercise. (Paras 10 and 13] (891-B-D; 892-B-C] E
      *Rupa Ashok Hurra v. Ashok Hurra and Am: (2002) 4
      SCC 388: 2002 (2) SCR 1006 - relied on.
      Kartar Sinl{h v. State of Punjab (1994) 3 SCC
      569: 1994 (2) SCR 375; Mohd. Arif alias Ashfaa v.
      Registrar, Supreme Court of India and Ors. (2014) 9                F
      SCC 737: 2014 (11) SCR 1009 - referred to.
                       Case Law Reference
      1994 (2) SCR 375           referred to     Para5
      2014 (11) SCR 1009         referred to     Para6                   G
      2002 (2 ) SCR 1006         relied on       Para6
     CRIMINAL ORIGINAL JURISDICTION: Writ Petition
(Criminal) No. 46 of2008.
      Under Article 32 of the Constitution ofindia.                      H
886               SUPREME COURT ,REPORTS                      [2016] 5 S.C.R.


A           Ram Jethmalani, Sr. Adv., Manu Sharma, Ms. Ridhima Mandhar,
      Abhir Datt, Anirudh Anand, Chirag Madan, Sudarshan Rajan, Advs. for
      the Petitioner.
            R.S. Suri, Sr. Adv., Rajiv Nanda, P. K. Dey, Mukesh Kumar
      Maroria, Sunil Fernandes, Ms. Astha Sharma, Ms. Mithu Jain, Puneeth
B     K. G., Advs. for the Respondents.
            The Judgment of the Court was delivered by
            RANJAN GOGOi, J. 1. The writ petitioner has been convicted
      by this Court by its judgment and order dated 30th January, 2003 passed
      in Criminal Appeal No.889 of2001 under Section 3 of the Terrorist and
c     Disruptive Activities (Prevention) Act, 1987 (hereinafter referred to as
      "TADA Act") and under Section 302 read with Section 120B of the
      Indian Penal Code, 1860 (hereinafter referred to as "IPC"). He has
      been sentenced, inter alia, to undergo imprisonment for life. The review
      petitions filed by the writ petitioner as also by the co-accused (Mohd.
D     Shafi Khan @Mussadiq Hussain) against the aforesaid judgment dated
      30th January, 2003 i.e. Review Petition (Criminal) No.4 78 of2003 and
      Review Petition (Criminal) No.1377 of 2003 have been dismissed by
      order dated 2nd September, 2003 of this Court. Curative Petition filed
      by the co-accused (Mohd. Shafi Khan @ Mussadiq Hussain) i.e.
      Curative Petition (Criminal) No.23 of2004 in Review Petition (Criminal)
E     No.1377 of 2003 in Criminal Appeal No.889 of 2001 has also been
      dismissed by order dated 2nd February, 2005 of this Court. Thereafter,
      this writ petition under Article 32 of the Constitution oflndia has been
      filed by the present accused writ petitioner makingthe following prayers:
            (a)     Issue a writ in the nature of habeas corpus or other similar
 F                   direction, order or writ to the Respondents the~eby
                     coinmanding them to produce the petitioner before this
                     Hon'ble Court and thereafter forthwith release him from
                     illegal custody; and
            (b)     grant any other or further reliefs as this Hon'ble Court may
G                   deem fit and proper in the· facts and circumstances of the
                    case and in the interests of justice."
           2. Notwithstanding the prayers made, extracted above, in essence,
      the writ petition seeks interference with the order of conviction and the
      sentence imposed on the petitioner by this Court by its judgment and
H
     ASHIQ HUSSAIN FAKTOO v. UNION OF INDIA & ORS.                               887
                   [RANJAN GOGOi, J.]

 order dated 30'h January, 2003 passed in Criminal Appeal No.889 of              A
 2001.
       3. The Bench initially hearing the present writ petition had passed
 an order dated 24th September, 2014 to the following effect:
           "We have been apprised by Mr. Jethmalani as the writ petition
       was filed, no application for review was filed. We are of the B
       considered opinion if the present writ petition is converted to a-·-·
       review petition and heard in the open Court on the fundamental
       principles of review as well as the maxim ex debito justitiae, the
       cause of justice would be subserved and accordingly we direct
       the Registry to convert the present writ petition to a review petition c
       and list before the appropriate Bench in open Court as
       expeditiously as possible.
            Ordered accordingly"
        Subsequently the matter has been referred to a larger Bench.
 This is how we are in seizen of the. matter.                                     D

        4. As already noted review petitions were filed by the present
  writ petitioner as also by the co-accused (Mohd. Shafi Khan @Mussadiq
· Hussain) and the same were dismissed by this Court by order dated 2nd
  September, 2003 the said fact was not brought to the notice of the Court
  while the order dated 24.09.2013 was rendered.                                  E
        5. Shri Ram Jethmalani, learned Senior Counsel appearing for the
 writ petitioner has urged that the sole basis of the conviction of the writ
 petitioner is the alleged confession made by him. Shri Jethmalani has
 urged that the same is not a confession in law inasmuch as nowhere in
 the said statement the accused implicates himself with the alleged               F
 offence(s) in any manner. Neither the confession has been put to the
 accused in the course of his examination under the provisions of Section
 313 of the Code of Criminal Procedure, 1973, nor there is any
 corroboration to the alleged confession. Shri Jethmalani has further
 urged that Section 15 of the TADA Act makes a confession made to a
                                                                                  G
 Police Officer, not lower in rank than a Superintendent of Police, admissible
 in the trial of such person. Section 15 of the TADA Act, therefore, works
 as an exception to Section 25 of th~ Indian Evidenc·eAct, 1.872. However,
 in the instant case, the confession was recorded while the accused was
 in police custody and, therefore, would not be admissible under Section
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888             SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A     26 of the Indian Evidence Act, 1872. The provisions of Section 15 of the
      TADA Act are not in exception to what has been laid down in Section
      26 of the Indian Evidence Act,.1872. It is also urged that the confession
      recorded is contrary to the provisions of Rule 15 ofthe TADA Rules
      read with the guidelines laid down by this Court in para 263 of the judgment
      in Kartar Singh Vs. State. of Punjab On the aforesaid grounds, Shri
                                              1
                                                  •
8
      Jethmalani has submitted that a manifest miscarriage ofjustice has been
      occasioned by the conviction of the accused writ petitioner and the
      sentence imposed upon him which needs to be corrected on the principle
      of ex debito justitiae. Shri Jethmalani has also pointed out the decision
      of this Court in Mohd. Arif alias Ashfaq Vs. Registrar, Supreme
c     Court oflndia and others' to contend that review petitions in matters
      of convictions recorded under the TADA Act are required to be heard in
      open Court.
             6. Shri R.S. Suri, learned Senior Counsel appearing for the Union
      oflndia has questioned the maintainability of the present writ petition on
D     the ratio of the law laid down by this Court in Rupa Aslwk Hurra Vs.
      Ashok Hurra and another'. Drawing the attention of the Court to the
      relevant paragraphs of the report in Rupa Ashok Hurra (supra) Shri
      Suri has urged that neither a writ petition under Article 32 of the
      Constitution oflndia nor a second review petition would be maintainable.
      It is also submitted that invoking the principles of ex debito justitiae,
E     this Court in Rupa Ashok Hurra (supra) had carved out an exception
      permitting the Court to have a re-look at its concluded judgments on
      twin grounds i.e. (I) the order being in infraction of the principles of
      natural justice; and (2) or an order which shakes the integrity of the
      justice delivery system by an association of the judge with the subject
F     matter or the litigating parties which may have escaped the attention of
      the learned Judge.
            7. On merits, Shri Suri has submitted that what has been urged by
      Shri Jethmalani is not at all legally tenable and all the issues raised have
      been duly considered by this Court in its judgment dated 30'h January,
G     2003 passed in Criminal Appeal No.889 of200 I. Shri Suri has further
      submitted that principle of open court hearing laid down by the Constitution
      Bench in Mohd. Ari[ alias Ashfaq (supra) is only in cases of death

      1
        (1994)3 sec 569
      2
        (2014) 9 sec 737
H     ' (2002) 4 sec 388
   ASHJQ HUSSAIN FAKTOO v. UNION OF INDIA & ORS.                                889
                 [RANJAN GOGOi, J.]

penalty cases either under the !PC or the TADA Act. The reference to            A
TADA cases in paragraph 40 of the report in Mohd. Arif alias Ashfaq
(supra) has to be understood accordingly.
      8. Having heard the learned counsels for the parties we are of the .
view that on the strength of the Constitution Bench judgment in Rupa
Ashok Hurra (supra) the present writ petition would not be maintainable. B
It would also not be maintainable as a review petition inasmuch as Review
Petition (Criminal) No.4 78 of2003 filed by the writ petitioner has been
dismissed by this Court on 2"d September, 2003. Open Court hearing of
review petitions in terms of the judgment of this Court in Mohd. Arif
alias Ashfaq (supra) is available as ofright only in death sentence cases.
                                                                                 c
       9. The principle of ex debito justitiae invoked on behalf of the
accused writ petitioner to attract the jurisdiction of this Court under
Article 32 of the Constitution oflndia to set the accused writ petitioner
at liberty, in our considered view, has been elaborately dealt with in the
concurring judgment of Umesh C. Banerjee, J. in Rupa Ashok Hurra
(supra) and holding that the doctrine of ex debito justitiae would prevail       D
over procedural !av. but would be applicable only in a situation where
the order of this Court had been passed without notice or where the
order has the effect of eroding the public confidence in the justice delivery
system. Paragraph 69 of the report in Rupa Ashok Hurra (supra)
containing the view of Umesh C. Banerjee, J. may be usefully extracted           E
herein below:
            "69. True, due regard shall have to be had as regards opinion
       of the Court in Ranga Sweany [(1990) I SCC 288] but the situation
       presently centres around that in the event of there being any
       manifest injustiCe would the doctrine of ex debito justitiae be           F
       said to be having a role to play in sheer passivity or to rise above
       the ordinary heights as it preaches that justice is above all. The
       second alternative seems to be in consonance with time and the
       present phase of socio-economic conditions of the society.
       Manifest injustice is curable in nature rather than incurable and
       this Court would lose its sanctity and thus would belie the               G
       expectations of the founding fathers that justice is above all. There
       is no manner of doubt" that procedural law/procedural justice
       cannot overreach the concept ofjustice and in the event an order
       stands out to create manifest injustice, would the same be allowed
       to remain in silentio so as to affect the parties perpetually or the      H
890      SUPREME COURT REPORTS                           (2016] 5 S.C.R.


A      concept ofjustice ought to activate the Court to find a way out to
       resolve the erroneous approach to the problem? Mr Attomey-
       General, with all the emphasis in his command, though principally
       agreed.that justice of the situation needs to be looked into and
       relief be granted if so required but in the same breath submitted
       that the Court ought to be careful enough to tread on the path,
B
       otherwise the same will open up a Pandora's box and thus, if at
       all, in rarest of the rare cases, further scrutiny may be made.
       While it is true that law courts have overburdened themselves
       with the litigation and delay in disposal of matters in the
       subcontinent is not unknown and in the event of any further
c      appraisal of the matter by this Court, it would brook no further
      ·delay resulting in consequences which are not far to see but that
       would by itself not in my view deter this Court from further
       appraisal of the matter in the event the same, however, deserves
       such an additional appraisal - the note of caution sounded by
       Mr. Attorney-General as regards opening up of a Pandora's box,
D
       strictly speaking, however, though may be very practical in nature
       but the same apparently does not seem .to go well with the concept
       of justice as adumbrated in our Constitution. True it is, that
       practicability of the situation needs a serious consideration more
       so when this Court could do without it for more than 50 years,
E      which by no stretch of imagination can be said to be. a period not
       so short. I feel it necessary, however, to add that it is not that we
       are not concerned with the consequences of reopening of the
       issue but the redeeming feature of our justice delivery system, as
       is prevalent in the country, is adherence to proper and effective
       administration of justice in stricto. In the event there is any
F
       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 deliverv system, technicality
       ought not to outweigh the course of justice-the same beingthe
G      true effect of the doctrine of ex debito justitiae. The oft-quoted
       statement of law of Lord Hewart, C.J. in R. v. Sussex Justices,
       exp McCarthy [(1924) 1 KB 256] that it is of fundamental
       importance that justice should not only be done, should manifestly
       and undoubtedly be seen to be done, had this doctrine underlined
       and administered therein. In this context, the decision of the House
H
     ASHIQ HUSSAIN FAK TOO v. UNION OF INDIA & ORS.                              891
                   [RANJAN GOGOi, J.]

        of Lords in R. v. Bow Street Metropolitan Stipendiary                     A
        Magistrate, exp Pinochet Ugarte (No. 2){(1999) I All ER
        577(HL)] seems to be an epoch-making decision, wherein public
        confidence in the judiciary is said to be the basic criterion of the
        justice delivery system - any act or action even if it i~ a passive
        one, if erodes or is even likely to erode the ethics ofjudiciary, the
                                                                                  B
        matter needs a further look."
         10. The principle of ex debito justitiae is founded on a recognition
  of a debt that the justice delivery system owes to a litigant to correct an
  error in a judicial dispensation. Its application, by the very nature of
. things, cannot be made to depend on varying perceptions of legal
  omissions and commissions but such recognition of the debt which have           c
  the potential of opening new vistas of exercise ofjurisdiction to relook
  concluded cases, must rest on surer foundations which have been
  discerned and expressed in Rupa Ashok Hurra (supra). Frantic cries
  of injustice founded on perceived erroneous application of law or
  appreciation of facts will certainly not be enough to extend the frontiers      D
  of this jurisdiction.                                   · · ··· ·· -~
        11. The opinion of Syed Shah Mohammed Quadri, J. with regard
 to the situations in which an aggrieved litigant would be entitled to relief
 under the doctrine of ex debito justitiae has been set out in paragraph
 51 ofthe report which may be reproduced herein below:                            E
             "Nevertheless, we think that a petitioner is entitled to relief
        ex debito justitiae if he establishes ( 1) violation of the principles
        of natural justice in that he was not a party to the lis but the
        judgment adversely affected his interests or, ifhe was a party to
        the list, he was not served with notice of the proceedings and the        F
        matter proceeded as if he had notice, and (2) where in the
        proceedings a learned judge failed tcrdisclose his connection with
        the subject-matter or the parties giving scope for an apprehension
        of bias and the judgment adversely affects the petitioner." (para
        51)
                                                                                  G
         12. The said jurisdiction because of its very nature has attracted
 the terminology of curative jurisdiction. The procedural steps with regard
 to filing and disposal of applications invoking the curative jurisdiction,
 termed as curative petitions, have also been laid down in paragraphs 52
 and 53 of the report of Syed Shah Mohammed Quadri, J. in Rupa Ashok
                                                                                  H
892            SUPREME COURT REPORTS                           [2016] 5 S.C.R.



A     Hurra (supra) wliich now finds mention in Order XLVIIl of the Supreme
      Court Rules, 2013.
             13. The present writ petition under Article 32 of the Constitution
      oflndia by no stretch ofreasoning would fit into any of the permissible
      categories of post conviction exercises permissible in law as laid down
B     by this Court. The doctrine of ex debito justitiae being circumscribed
      by the judgment of this Court in Rupa Ashok Hurra (supra) it is for the
      petitioner to exhaust the said remedy, if is he so inclined and so advised.
      Merely because in the comprehension of the writ petitioner the judgment
      of this Court is erroneous would not enable the Court to reopen the issue
      in departure to the established and settled norms and parameters of the
c     extent ef permissible exercise of jurisdiction as well as the procedural
      law governing such exercise. We, therefore, hold that the present writ
      petition is not maintainable and is accordingly dismissed subject to the
      observations as above.
      Ankit Gyan                                           Writ Petiti1;m dismissed.
D