Supreme Court of India
STATE OF PUNJABversusDAVINDER PAL SINGH BHULLAR & ORS. ETC
- Citation
- 2011 INSC 839
- Decided
- 7 December 2011
- Disposal
- Appeal(s) allowed
- Bench
- B S CHAUHAN
Holding
A criminal court, once its judgment is signed, is functus officio and cannot alter or review the order under Section 362 CrPC, nor can it use its inherent powers under Section 482 CrPC to do so; the High Court's post‑disposal orders are a nullity.
Summary
The Supreme Court examined whether the Punjab and Haryana High Court could entertain applications under Section 482 of the CrPC and direct a CBI investigation after a criminal appeal had been finally disposed of. It held that once a judgment is signed, the court becomes functus officio and, under Section 362 CrPC, cannot alter or review the order, nor can it invoke its inherent powers to do so. The Court also found that the alleged judicial bias, the lack of proper bench roster assignment, and the improper direction to the CBI rendered the High Court's orders a nullity. Consequently, the FIR registered by the CBI on the basis of those orders was quashed. The appeals were allowed and the impugned orders set aside.
Issues considered
- Whether a High Court can pass orders under Section 482 CrPC after the final disposal of a criminal appeal under Section 362 CrPC.
- Whether the High Court may direct the CBI to investigate in a manner not prescribed by the CrPC.
- Whether alleged judicial bias warrants setting aside the High Court's orders.
- Whether the doctrine of waiver applies when bias is not raised at the earliest opportunity.
- Whether a second habeas corpus petition is barred by res judicata.
- Whether dismissal of a Special Leave Petition in limine has any precedential effect.
- Whether a bench lacking proper roster assignment has jurisdiction to entertain applications.
Legislation cited
- Code of Criminal Procedure, 1973s. 151, s. 200, s. 362, s. 482, s. 97
- Constitution of Indias. Article 137, s. Article 226, s. Article 32
- Explosive Substances Act, 1908
- Indian Penal Code, 1860
Subjects
judicial biasfunctus officioSection 362 CrPCSection 482 CrPCinherent powersCBI investigationres judicatahabeas corpusbench jurisdictionwaiverArticle 137 review power
Judgment
[2011) 15 (ADDL.) S.C.R. 540
A STATE OF PUNJAB
v.
DAVINDER PAL SINGH BHULLAR & ORS. ETC
(Criminal Appeal Nos.753-55 of 2009)
DECEMBER 7, 2011
B
[DR. B.S. CHAUHAN AND A.K. PATNAIK, JJ.]
Code of Criminal Procedure, 1973:
c s.362 - Alteration/Modification of judgment -
Permissibility of - Held: There is no power of review with the
Criminal Court after judgment has been rendered - High
Court can alter or review its judgment before it is signed -
When judgment/order is passed, it cannot be reviewed -
0 s.362 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 disentit/ed to entertain a fresh prayer for any
relief unless the former order of final disposal is set aside by
E a Court of competent jurisdiction in a manner prescribed by
Jaw - 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
F of the judgment.
s.482 - Inherent powers under - Scope of exercise -
Applications filed uls.482 in a disposed of appeal - High
Court entertained the applications, directed investigation by
CBI and consequently CBI registered FIR - Held: Prohibition
G contained in s.362 is absolute; after the judgment is signed,
even the High Court in exercise of its inherent power u/s.482
has no authority or jurisdiction to alter/review the same.
Constitution of India, 1950: Article 137 - Power to review
H 540
STATE OF PUNJAB v. DAVINDER PAL SINGH 541
BHULLAR & ORS. ETC
any judgment- Held: Supreme Court by virtue of Article 137 A
has been invested with an express power· to review any
judgment in Criminal Law.
Jurisdiction: Of the Bench - Held: A Judge or a Bench
of Judges can assume jurisdiction in a case pending in the B
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 - The Judge cannot choose which matter he should
entertain and he cannot entertain a petition in respect of which C
jurisdiction has not been assigned to him by the Chief Justice.
Investigation/Inquiry: When CBI enquiry can be directed
- Held: A constitutional court can direct the CBI to investigate
into the case provided the court after examining the
a/legations in the complaint reaches a conclusion that the D
complainant could make out prima facie 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 E
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 F
the complainant, and it is necessary to do so in order to do
complete justice and make the investigation credible.
Doctrine of waiver: Bar of waiver/acquiescence - Held:
Issue of bias must be raised by party at the earliest if he is G
aware of it - If plea of bar is not taken at early stage, bar of
waiver is created - Moreover, question of waiver!
acquiescence would arise in a case provided the person
apprehending the bias/prejudice is a party to the case.
Judicial bias: Disability to act as an adjudicator - Held: H
542 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A Suspicion or bias disab.les an official from acting as an
adjudicator - Mere ground of appearance of bias and not
actual bias is enough to vitiate judgment/order - Judgment
which is result of bias or want of impartiality is a nullity.
B Judgment/Order: Review/alteration of judgment -
Permissibility - Held: There is no power with the criminal court
to review after judgment is rendered.
Res judicata: Writ of habeas corpus petitions filed earlier
and dealt with by the courts in accordance with law - Fresh
C petition in respect of the same subject matter filed after 10
years - Maintainability of - Held: A second 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
D Supreme Court after disposal of a habeas corpus writ petition
under Article 2.26 of the Constitution by the High Court -
H?wever, it is not possible to re-approach the High Court for
the same relief by filing a fresh writ petition - In case, a petition
by issuing writ of habeas corpus is dismissed by the High
E 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 - There
may be certain exceptions to the rule that a person was not
aware of the correct facts while filing the first petition or the
F 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
G were not taken in the earlier petition for the same relief may
be permissible.
Appeal: Special leave petition (SLP)- Dismissal of, in
limine - Held: Dismissal of the SLP in limine does not mean
that the reasoning of the judgment of the High Court against
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 543
BHULLAR & ORS. ETC
which the SLP had been filed before the Supreme Court stood A
affirmed or the judgment and order impugned merged with
such order of Supreme Court on dismissal of the petition - It
would simply mean that Supreme Court did not consider the
case worth examining for a reason, which may be other than
merit of the case - An order rejecting the SLP at the threshold B
without detailed reasons, therefore, would 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 - Precedent.
The question which arose for consideration in the
c
instant appeals were 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 Cr.P.C. and as to
whether in exercise of its inherent jurisdiction under D
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. E
The prosecution case was that FIR No.334191 under
IPC and Explosive Substances Act, 1908 was registered.
In connection with that FIR, one 'BSM' was arrested. On
19.12.1991, 'BSM' escaped from the custody of the police F
for which FIR No.112 under Sections 223 and 224 IPC was
registered. The father of 'BSM' filed writ petition before
the High Court for production of his son. The State
Government explained that 'BSM' had escaped from
police custody. The High Court dismissed the aforesaid G
writ petition. After completion of the investigation in
respect of FIR No.112 of 1991 regarding the escape of
'BSM', a challan was filed before the competent court
wherein he was declared a proclaimed offender. After
completion of the investigation in FIR No.334 of 1991, the H
544 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Police chargesheeted eight persons. The chargesheet
revealed that an attempt was made by terrorists on the
life of 'SSS', the then SSP, Chandigarh, by using
explosives. In a thunderous explosion that followed, the
Ambassador Car of the SSP, Chandigarh, was blown
B high into the air whereafter it fell down ahead at some
distance completely shattered. Two persons died and
several persons got grievously injured. Three of the
accused, namely, 'DPSB, 'PSM' and 'GKM' were subjected
to trial. The other co-accused were not traceable and they
c were declared proclaimed offenders. The trial court
acquitted the three accused giving them benefit of doubt.
The High Court dismissed the appeal against the said
acquittal.
After 20 days of the disposal of the appeal against
D 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 Heard". The SSP, Chandigarh submitted an
E affidavit dated 4.8.2007, giving information regarding all
the proclaimed offenders in that case. One of them was
'DPSB' who was initially declared as a proclaimed
offender. However, he was subsequently arrested and
was sentenced to death in a case in which an
F assassination attempt was made on the life of 'MSB', the
then President, All India Youth Congress, in which
several persons were killed and the legs of 'MSB' were
amputated. It was also mentioned in the affidavit that
'BSM' had .escaped from police custody and his
G whereabouts were not known. Another proclaimed
offender was killed in a police encounter. After
considering the said affidavit filed by the SSP, the High
Court directed the Chandigarh Administration to
constitute a Special Investigation Team to enquire into all
H aspects of the proclaimed offenders and submit a status
STATE OF PUNJAB v. DAVINDER PAL SINGH 545
BHULLAR & ORS. ETC
report. The Hig'1 Court also issued notice to the CBI. It A
was during the pendency of these proceedings that the
father of 'BSM' 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 B
out the whereabout of his son. The High Court. directed
the CBI to investigate the allegations of father of 'BSM'
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 c
witnesses as witness A, B and C and further to submit
periodical status reports. In the same matter, the Bench
entertained another Criminal Miscellaneous Application
on 30.10.2007 filed by 'DPSB' (a convict in another case
and lodged in Tihar Jail) regarding allegations that his 0
father and maternal uncle had been abducted in the year
1991. The High Court directed the CBI to investigate the
allegations made in the complaint filed by 'DPSB'. The
CBI after making a preliminary investigation/enquiry on
the application, registered an FIR on 2.7.ZOOS under E
Sections 120-B, 364, 343, 330, 167 and 193 IPC against
'SSS,' the then SSP and other police officers.
The instant appeals were filed on various grounds,
including: the judicial bias of the Judge presiding over
the Bench by making specific allegations that the officer F
named in the order had conducted an enquiry against the
Presiding Judge (Mr. Justice 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 G
case; and that as the judgment in appeal against acquittal
was passed by the Court on 11.5.2007 upholding the
judgment of acquittal, the Court became functus officio
and it had no competence to reopen the case by order
dated 30.5.2007. H
546 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Allowing the appeals, the Court
HELD: I. JUDICIAL BIAS: There 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
8
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,
C 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 controversy. This principle
is derived from the legal maxim - nemo debet esse judex
in causa propria sua. It applies only when the interest
D 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.
The failure to adhere to this principle creates an
E 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
F is a likelihood of bias affecting the decision. The 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
3 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
H faith. A judgment which is the result of bias or want of
STATE OF PUNJAB v. DAVINDER PAL SINGH 547
BHULLAR & ORS. ETC
impartiality, is a nullity and the trial "coram non judice". A
Therefore, the consequential order, if any, is liable to be
quashed. 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 B
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 c
party. However, once such an apprehension exists, the
trial/judgment/order etc. stands vitiated for want of
impartiality. Such judgment/order is a nullity and the trial
"coram non-judice". [Paras 10, 14, 16, 20] [579-E-F; 581-
C-D-F; 582-8-C; 584-H; 585-A-C] D
State of West Bengal & Ors. v. Shivananda Pathak & Ors.
AIR 1998SC 2050; Bhajan Lal, Chief Minister, Haryana v. Ml
s. Jindal Strips Ltd. & Ors. (1994) 6 SCC 19; Rameshwar
Bhartia v. The State of Assam AIR 1952 SC 405; Mineral
Development Ltd. v. The State of Bihar & Anr. AIR 1960 SC E
468; Meenglas Tea Estate v. The Workmen AIR 1963 SC
1719; The Secretary to the Government, Transport
Department, Madras v. Munuswamy Mudaliar & Ors. AIR
1988 SC 2232; A.U. Kureshi v. High Court of Gujarat & Anr.
(2009) 11 SCC 84; Mohd. Yunus Khan v. State of U.P. & Ors. F
(2010) 10 SCC 539) Manak Lal, Advocate v. Or. Prem Chand
Singhvi & Ors. AIR 1957 SC 425; Vassi/iades v. Vassiliades
AIR 1945 PC 38; S. Parthasarathi v. State of Andhra Pradesh
AIR 1973 SC 2701; Ranjit Thakur v. Union of India & Ors.
AIR 1987 SC 2386; Rupa Ashok Hurra v. Ashok Hurra & Anr. G
(2002) 4 SCC 388; Justice P.O. Dinakaran v. Hon'ble Judges
Inquiry Committee (2011) 8 SCC 380 - relied on.
In re: Linahan, 138 F. 2nd 650 (1943); Public Utilities
Commission ofthe District of Columbia v. Franklin S. Pollak H
548 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A 343 US 451 (1952) 466; Ex Parte Pinochet Ugarte (No.2)
1999 All ER, 577; Locabail (UK) Ltd. v. Bayfield Properties
Ltd. & Anr. (2000) 1 All ER 65 - referred to.
II. DOCTRINE OF WAIVER:
B 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
C 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.
D Inaction in every case does not lead to an inference of
implied consent or acquiescence. Waiver 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,
E 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. It is apparent that the issue
F 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
G applicable where a party knowing all the facts of bias etc.,
surrenders to the authority of the Court/Tribunal without
raising any objection. Acquiescence, in fact, is sitting by,
when another is invading the rights. The acquiescence
must be such as to lead to the inference of a licence
H sufficient to create rights in other party. Needless to say
STATE OF PUNJAB v. DAVINDER PAL SINGH 549
BHULLAR & ORS. ETC
that question of waiver/acquiescence would arise in a A
case provided the person apprehending the bias/
prejudice is a party to the case. The question of waiver
would not arise against a person who is not a party to
the case as such person has no opportunity to raise the
issue of bias. [paras 21-23, 25] [585-F-G; 586-D-G; 587-E- B
G] .
Mis. Pannalal Binjraj & Ors. v. Union of India & Ors., AIR
1957 SC397; Justice P.O. Dinakaran (2011) 8 SCC 380; Ml
s. Power Control Appliances & Ors. v. Sumeet Machines Pvt. C
Ltd. (1994) 2 SCC 448; P. ohn Chandy & Co. (P) Ltd. v. John
P. Thomas AIR 2002 SC 2057; Oawsons 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. Yel/oji
Rao & Ors., AIR 1965 SC 1405; Associated Hotels of India D
Ltd~ v. S. B. Sardar Ranjit Singh AIR 1968 SC 933;
Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal
Corporation & Ors. (1992) Suppl 1 SCC 5; Mis. Sikkim
Subba Associates v. State of Sikkim AIR 2001 SC 2062;
Krishna Bahadur v. Mis. Puma Theatre &Ors. AIR 2004 SC E
4282; Municipal Corporation of Greater Bombay v. Dr.
Hakimwadi Tenants' Association & Ors. AIR 1988 SC 233 -
relied on. '
Ill. BAR TO REVIEW/ALTER- JUDGMENT F
There 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 G
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 H
550 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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.
B There is also no provision for modification of the
judgment. Moreover, the 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
c alter/review the same. If 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
0 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.
E 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.
This Court by virtue of Article 137 of the Constitution has
F 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. (paras 26, 27,
G 28] (588-A-H; 589-A-B-D]
Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. AIR
2001 SC 43;Chhanni v. State of U.P. AIR 2006 SC 3051;
Moti Lal v. State of M.P.AIR 1994 SC 1544; State of Kera/a
H v. M.M. Manikantan Nair AIR 2001 SC 2145; Chitawan &
STATE OF PUNJAB v. DAVINDER PAL SINGH 551
BHULLAR & ORS. ETC
Ors. v. Mahboob l/ahi 1970 Crl.L.J. 378; Deepak Thanwardas A
Ba/wani v. State of Maharashtra & Anr. 1985 Crl.L.J. 23;
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; Asif Kumar Kar v. State of West Bengal & Ors. B
(2009) 2 SCC 703; Vishnu Agarwal v. State of U.P. & Anr. AIR
2011 SC 1232; State Represented by D.S.P., S.B.C.l.D.,
Chennai v. K. V. Rajendran & Ors. AIR 2009 SC 46; Smt.
Sooraj Devi v. Pyare Lal & Anr. AIR 1981 SC 736 - relied
on. c
IV. INHERENT POWERS UNDER SECTiON 482 Cr.P.C.
4.1. The 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 ,
0
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 E
circumstances of the case, it would be in order for the 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 F
circumstances and the decision has to be arrived at on
the facts that e)\isted 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 !Jarred under Section 362 G
Cr.P.C. [para 31] [590-B-E]
Simrikhia 11. Dolley Mukherjee and Chhabi Mukherjee &
Anr, (1990) 2 SCC 437; Kurukshetra University &Anr. v. State
of Haryana & Anr. AIR 1977 SC 2229; State of WB. & Ors. H
552 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A v. Sujit Kumar Rana (2004) 4 SCC 129 - relied on.
4.2. The power under Section 482 Cr.P.C. cannot be
resorted to if there is a specifU: provision in the Cr.P.C.
for the redressal of the grievance of the aggrieved party
B or where alternative remedy is available. 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
C wrong in course of administration of justice as provided
in the legal maxim "quando lex a/iquid alique, concedit,
conceditur et id sine quo res ipsa esse non potesf'.
However, the High Court has not been given nor does it
possess any inherent power to make any order, which in
D 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. [para 33] [591-B-F]
La/it Mohan Monda/ & Ors. v. Benoyendra Nath
E Chatterjee AIR 1982 SC 785; Rameshchandra Nandlal
Parikh v.• State of Gujarat & Anr. AIR 2006 SC 915; Central
Bureau of Investigation v. Ravi Shankar Srivast-ava, /AS &
Anr. AIR 2006 SC 2872; lnder Mohan Goswami & Anr. v.
State of Uttarancha/ & Ors. AIR 2008 SC 251; Pankaj Kumar
F v. State of Maharashtra & Ors. AIR 2008 SC 3077 - relied
on.
4.3. The High Court can always issue appropriate
direction in exercise of its power under Article 226 of the
G 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, th~
High Court cannot direct the police as to how the
investigation is to be conducted but can insist only for
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 553
BHULLAR & ORS. ETC
lhe observance of process as provided for in the Cr.P.C. A
"6.nother remedy available to such an aggrieved person
"'llay be to file a complaint under Section 200 Cr.P.C. and
lhe court concerned will proceed as provided in Chapter
-XV of the Cr.P.C. The provisions of Section 482 Cr.P.C.
::losely resemble Section 151, CPC and, therefore, the B
irestrictions which are there to use the inherent powers
111nder Section 151 CPC are applicable in exercise of
ipowers under Section 482 Cr.P.C. and one such
•restriction is that there exists no other provision of law
lby which the party aggrieved could have sought relief. C
![Paras 34-35] [591-H; 592-A-D]
Gangadhar Janardan Mhatre v. State of Maharashtra &
•Ors., (2004) 7 SCC 768; Divine Retreat Centre v. State of
•Kera/a & Ors. AIR 2008 SC 1614; The Janata Dal v. H.S.
-Chowdhary & Ors. AIR 1993 SC 892; Divisional Forest Officer D
& Anr. v. G. V. Sudhakar Rao & Ors. AIR 1986 SC 328;
.Popular Muthiah v. State represented by Inspector of Police
1(2006) 7 SCC 296; Rajan Kumar Machananda v. State of
l/<.amataka 1990 (supp.) SCC 132; Joseph Peter v. State of
•Goa, Daman and Diu AIR 1977 SC 1812- relied on. E
4.4. The rule of inherent powers has its source in the
maxim "Quado/ex aliquid a/icui concedit, concedere videtur
iid sine quo ipsa, ess uon potest" which means that when
lthe law gives anything to anyone, it gives <1lso all those F
!things without which the thing itself could not exist. The
,order cannot be passed by-passing the procedure
1Prescribed by law. The court in exercise of its power under
Section 482 Cr.P.C. cannot direct a particular agency to
linvestigate the matter or to investigate a case from a G
1particular angle or by a procedure not prescribed in
~r.P.C. Such powers should be exercised very sparingly
Ito prevent abuse of process Qf any court. Courts must be
careful to see that its decision in exercise of this power
ijs based on sound principles. To inhere means that it H
554 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B 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
C 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 divire nor limitless.
It is not to generate unnecessary indulgence. The power
0
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
E located, the same can be rectified by invoking such
power. 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. [Para 40] [593-G-H; 594-
F A-G]
4.5. Application under 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.
G 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
H the abus~ of the "process" of the court and/or calls for
STATE OF PUNJAB v. DAVINDER PAL SINGH 555
BHULLAR & ORS. ETC
interference to secure the ends of justice. The use of A
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 B
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. Inherent jurisdiction can be c
exercised if injustice done to a party, e.g., a clear
mandatory provision of law is overlooked 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 o
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 remediless. On E
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 F
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 confined. It is something different that the G
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 was never H
556 SUPREME COURT REPORTS [2011) 15 (ADUL.) S.C.R.
A the wisdom of the Legislature. To confer un-briddled
inherent power would itself be trenching upon the
authority of the Legislature. [Para 40) [594-H; 595-A-H;
596-A-B]
B V. JURISDICTION OF THE BENCH :
5. The Chief Justice is the master of roster. 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. The Bench gets
C 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
D may be without jurisdiction and made the Judge coram
non-judice. [Paras 42-43) [587 -C-D; 598-0-E]
State of Rajasthan v. Prakash Chand & Ors. AIR 1998
SC 1344; State of U.P. & Ors. v. Neeraj Chaubey & Ors.
E (2010) 10 SCC 320; State of Maharashtra v. Narayan
Shamrao Puranik AIR 1982 SC 1198; lnder Mani v.
Matheshwari Prasad (1996) 6 SCC 587; R. Rathinam v. State
(2002) 2 SCC 391 ; Jasbir Singh v. State of Punjab (2006) 8
sec 294 - reffed on.
F Sanjay Kumar Srivastava v. Acting Chief Justice, 1996
AWC 644 - approved.
VI. WHEN CBI ENQUIRY CAN BE DIRECTED:
G A constitutional court can direct the CBI to
investigate ~nto 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
H against whom the investigation is sought, is to be·
STATE OF PUNJAB v. DAVINDER PAL SINGH 557
BHULlAR & ORS. ETC
impleaded as a party and must be given a reasonable A
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 B
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. [para 48] [600-B-D]
c
Secretary, Minor Irrigation and Rural Engineering
SeNices, U.P. & Ors. v. Sahngoo Ram Arya & Anr. AIR 2002
SC 2225; Common Cause, A Registered Society v. Union
of India & Ors. (1999) 6 SCC 667; D. Venkatasubramaniam
& Ors. v. M.K.Mohan Krishnamachari & Anr. (2009) 10 SCC D
488; Disha v. State of Gujarat & Ors. AIR 2011 SC 3168;
Vineet Narain & Ors. v. Union of India & Anr. AIR 1996 SC
3386; Union of India v. Sushi/ Kumar Modi (1998) 8 SCC
661; Rajiv Ranjan Singh 'La/an' (VIII) v. Union of India (2006)
6 SCC 613; Rubabbuddin Sheikh v. State of Gujarat & Ors. E
AIR 2010 SC 3175; Ashok Kumar Todi v. Kishwar Jahan &
Ors, (2011) 3 SCC 758 - relied on.
7.1. The instant appeals are decided in the light of the
said settled legal propositions. It is evident from the F
judgment and order dated· 11.5.2007 that the criminal
appeal stood dismissed. The order sheet dated 30.5.2007
revealed that in spite of the disposal of the said criminal
appeal it had been marke.d therein as "put up for further
hearing" and directions were given to the trial court to G
furnish a detailed report as to the measures taken by it
to bring the proclaimed offenders before the Court. The
order dated 5.9.2007 s.howed that the Bench headed by
Mr. Justice X was furnished with full information
regarding proclaimed offenders by the authorities. The · H
558 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A order dated 19.9.2007 revealed that the Bench 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 record revealed that 'DPSB'
was involved in assassination attempt of 'MSB'. He was
B convicted and given the death sentence. Ever since 2003,
'DPSB' 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
c various other matters after the disposal of the- criminal
appeal against acquittal. The Court was fully aware that
another relative of 'DPSB' had filed a case before the High
Court in the year 1997, for production of 'BSB', the father
of 'DPSB' and not for his uncle. The High Court had
rejected the said petition and the matter was not agitated
0
further attained finality. [paras 50-52] [600-F-G; 601-D-E;
602-E-H; 603-A]
7 .2. It is evident that the court was very much
anxious to know about the proclaimed offenders,
E 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 son of 'DSM' had
also been killed. Therefore, the chapter regarding the
F 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 'DSM' and 'DPSB'. The Bench was not competent
to entertain the said applications and even if the same
G had been. filed in the disposed of appeal, the court could
have directed to place the said applications before the
Bench dealing with similar petitions. It is evident from the
order dated 30.5.2007 that in spite of the fact that the
appeal stood disposed of on 11.5.2007, there appeared
H an order in t'1e file: "put up for further hearing". That
STATE OF PUNJAB v. DAVINDER PAL SINGH 559
BHULLAR & ORS. ETC
meant the matter was to be heard by the same Bench A
-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 B
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
revealed that it was directed to put up the case for further c
hearing. Thus, it should have been heard .by the Bench
as it was on 30.5.2007. [paras 54-55] [603-H; 604-A-G]
8. The chargesheet in the trial court itself revealed
that two accused had died. The State counsel failed to
bring these facts to the notice of the court. The order D
dated 5.10.2007 though gave 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 read that particular persons were E
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. There could be no justification for the Bench
concerned to entertain applications filed under Section F
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 Section 482 Cr.P.C. petitions
or place the matters before the Chief Justice for G
appropriate orders. As 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 'SSS' could be held to be 1-i
560 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B only rorhen the High C_ourt 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
c leave to appeal had been entertained and rejected. An
application fqr leave to appeal that has been dismissed
against an order of acquittal cannot provide a platform
fo~ an investigation in a s"bject matter that is alien and
not directly concerned with the subject matter of appeal.
D 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.
E In the instant case, neither the State of Punjab nor 'SSS'
have been impleaded as respondents. Thus, the question
of waiver on the ground of bias by either of them does
not arise. [Paras 57-60] [606-C-H; 607-A-F]
9. Undoubtedly, in respect of missing persons earlier
F habeas corpus petitions had been filed by the persons
concerned in 1991 and 1997 which were dealt with by the
courts in accordance with law. A fresh petition in respect
of the same subject matter could not have been
entertained after 10 years of dismissal of the said writ
G petition. A second writ petition for issuing a writ of habeas
corpus is barred by principles of resjudicata. The doctrine
of res judicata may not apply in cas!! a writ retition under
Article 32 of the Constitution is filed before this Court after
disposal of a habeas corpus writ petition under Article 226
H of the Constitution by the High Court. However, it is not
STATE OF PUNJAB v. DAVINDER PAL SINGH 561
BHULLAR & ORS. ETC
possible to re-approach the High Court for the same relief A
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 B
is also dismissed, a petition under Article 32 of the
Constitution, seeking the same relief would not be
maintainable. There 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 c
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 petitipn
of habeas corpus on fresh grounds which were not taken 0
in the earlier petition for the same relief may be
permissible. A case is to be decided on its facts taking
into consideration whether really new issues have been
agitated or the iacts raised in subsequent writ petition
could not be known to the writ petitioner while filing the E
earlier writ petition. [Paras 61-63, 65] [607-G-H; 608-A-C;
F-G; 609-C-D]
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 F
1972 SC 2215; Har Swarup v. The General Manager, Central
Railway & Ors. AIR 1975 SC 202; T.P. Moideen Koya v.
Government of Kera/a & Ors. AIR 2004 SC 4733; K. Vidya
Sagar v. State of Uttar Pradesh & Ors. AIR 2005 SC 2911;
Lalubhai Jogibhai Patel v. Union of India & Ors. AIR 1981 SC G
728; Ajit Kumar Kaviraj v. Distt. Magistrate, Birbhum & Anr.
AIR 1974 SC 1917; Sunil Dutt v. Union of India & Ors. AIR
1982 SC 53; Srikant v. District Magistrate, Bijapur & Ors.
(2007) 1 sec 486 - relied on.
H
562 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 10. 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 been entertained. A large number of documents
were submitted to the court under sealed cover by the
B State of Punjab on the direction of this court. The said
documents showed that 'SSS' 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
c officers in Punjab through the Chairman of the Public
Service Commission. 'SSS' 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 of the said reports, the Chief Justice of the High
0 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 'SSS'
E while conducting the enquiry. [Para 65-66] [609-D-H; 610-
A]
11. The High Court has adopted an unusual and
unwarranted procedure, not known in law, while issuing
certain directions. The court not only entertained the
F applications filed by 'DPSB' and 'DSM' 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
'DPSB' who admittedly had inimical relation with 'SSS' as
G 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. The
court was not justified in directing the CBI to adopt such
H an unwarranted course. When the matter came up for
STATE OF PUNJAB v. DAVINDER PAL SINGH 563
BHULLAR & ORS. ETC
hearing on 2.4.2008, in spite of the fact that the matter A
was heard throughout by a particular Division Bench, Mr.
Justice X alone held the proceedif'!gs, 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. [paras 67-69] [610-A-F] B
12. The FIR unquestionably is an inseparabfe
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 C
lawful existence. The FIR itself is based on a preliminary·
enquiry which in turn is based on the affidavits submitted
by the applicants who had filed the petitions under
Section 482 Cr.P.C. The order impugned was rightly
challenged to be a nullity at least on three grounds,
namely, judicial bias; want of jurisdiction by virtue of D
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. It is a settled
legal proposition that if initial action is not in consonance E
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, F
comes into play and applies on all scores in the present
case. 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 est. [paras 70-72, 76] [611- G
B-F; 612-D-E]
Badrinath v. State of Tamil Nadu & Ors. AIR 2000 SC
3243; State of Kera/a v. Puthenkavu N.S.S. Karayogam & Anr.
(2001) 10 SCC 191; Mangal Prasad Tamoli (dead) by Lrs. H
564 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A v. Narvadeshwar Mishra (dead) by Lrs. & Ors. (2005) 3 SCC
422; In C. Albert Morris v. K. Chandrasekaran & Ors. (2006)
1 SCC 228; 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, SB/ v. Rakesh
B Kumar Tewari (2006) 1 SCC 530; Ritesh Tewari & Anr. v. State
of.U.P. & Ors. AIR 2010 SC 3823 - relied on.
13. The dismissal of the special leave petition in
limine does not mean that the reasoning of the judgment
of the High Court against whi.ch the Special Leave
C 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
D of the case. An order rejecting the Special Leave Petition
at the threshold withQut detailed reasons, 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
E 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. [para 77] [612-G-H; 613-A-D]
F 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
G Narayan Chowdhury & Ors. v. Union of India & Ors. AIR 1996
SC 751; Union of/ndia & Anr. v. Sher Singh & Ors. AIR 1997
SC 1796; Mis Sun Export Corporation, Bombay v. Collector
of Customs; Bombay & Anr. AIR 1997 SC 2658;
Kunhayammed ~ Ors. v. State of Kera/a & Anr. AIR 2000 SC
H 2587; Saurashtra Oil Mills Association, Gujarat v. State of
STATE OF PUNJAB v. DAVINDER PAL SINGH 565
BHULLAR & ORS. ETC
Gujarat & .Anr. AIR 2002 SC 1130; Union of India & Ors. v. A
Jaipal Singh AIR 2004 SC 1005; Delhi Development
Authority v. Bhola Nath Sharma (dead) by L.Rs. & Ors. AIR
2011 SC 428 - referred to.
14. The error in the impugned orders of the High B
Court transgreases judicious discretion. The process
adopted by the High Court led to greater injustice than
securing the ends offustice. 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 C
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 D
below cannot be justified on any rational legal principle.
The High Court was swayed away by considerations that
are legally impermissible and unsustainable. The
impugned orders challenged are declared to be nullity
and as a consequence, the FIR registered by the CBI is E
also quashed. However, 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.
[Paras 78-80] [613-H; 614-A-EJ
F
Case Law Reference:
1998 (1) SCR 811 relied on Para 12
343 us 451 (1952) 466 referred to Para 12
G
1994 (2) Suppl. SCR 445 relied on Para 13
AIR 1952 SC 405 relied on Para 14
1960 SCR 609 relied on Para 14
H
566 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A 1964 SCR 165 .relied on Para 14
1988 Suppl. SCR 673 relied on Para 14
2009 (1) SCR 879 relied on Para 14
B 2010 (12) SCR 448 relied on Para 14
1957 SCR 575 relied on Para 15
AIR 1945 PC 38 relied on Para 16
c 1974 (1) SCR 697 relied on Para 16
1988 (1) SCR 512 relied on Para 16
2002 (2) SCR 1006 relied on Para 17
D 1999 All ER, 577 relied on Para 17
(2000) 1 All ER 65 relied on Para 18
(2011 > 8 sec 380 relied on Para 19
E 1999 All ER, 577 referred to Para 17
(2000) 1 All ER 65 referred to Para 19
1957 SCR 233 relied on Para 21
F (2011) 8 sec 380 relied on Para 21
1994 (1) SCR 708 relied on Para 22
2002 (3) SCR 549 relied on Para 22
p AIR 1935 PC 79 relied on Para 23
1959 Suppl. SCR 528 relied on Para 23
1965 SCR 221 relied on Para 23
H 1968 SCR 548 relied on Para 23
STATE OF PUi\IJAB v. DAVINDER PAL SINGH 567
BHULLAR & ORS. ETC
1991 (1) Suppl. SCR226 relied on Para 23 A
2001 (3) SCR 261 relied on Para 23
2004 (3) Suppl. SCR 833 relied on Para 23
1988 SCR 21 relied on Para 24 B
2000 (4) Suppl. SCR 313 relied on Para 26
2006 (3) Suppl. SCR 305 relied on Para 26
AIR 1994 SC 1544 relied on Para 26 c
2001 (3) SCR 203 relied on Para 26
1970 Crl.L.J. 378 relied on Para 27
1985 Crl.L.J. 23 relied on Para 27 D
AIR 1987 Raj. 83 (F.B relied on Para 27
AIR 1972 SC 1300 relied on Para 27
1981 (1) sec 62 relied on Para 27 E
(2009) 2 sec 103 relied on Para 27
•·
2011 SCR 197. relied on Para 27
2008 (12) SCR 1141 relied on Para 28 F
1981 (2 ) SCR 485 relied on Para 29
1990 (1) SCR 788 relied on Para 31
1911 (4) sec 451 relied on Para 32 G
(2004) 4 sec 129 relied on Para 32
1982 (3) sec 219 relied on Para 33
2006 (1) sec 132 relied on Para 33 H
568 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 2006 (4) Suppl. SCR 450 relied on Para 33
2007 (10) SCR 847 relied on Para 33
2008 (16) sec 111 relied on Para 33
B 2004 (4) Suppl. SCR 772 relied on Para 34,45
2008 (4) SCR 701 relied on Para 34
1992 (1) Suppl. SCR 226 relied on Para.35
c 1985 (3) Suppl. SCR 680 relied on Para 36
2005 (5) Suppl. SCR 63 relied on Para 37
1990 (supp.) sec 132 relied on Para 38
D 1977 (3) SCR 771 relied on Para 39
1997 (6) Suppl. SCR 1 relied on Para 41
2010 (11) SCR 542 relied on Para 42
E 1982 (2) sec 440 relied on Para 42
1996 (7) Suppl. SCR 400 relied on Para 42
(2002) 2 sec 391 relied on Para 42
F 2006 (7) Suppl. SCR 174 relied on Para 42
1996 AWC 644 approved Para 42
2002 (5) sec 521 relied on Para 44
G 1999 (3) SCR 1279 relied on Para 44
2009 (14) SCR 441 relied on Para 46
AIR 2011 SC 3168 relied on Para 47
H 1996 (1) SCR 1053 relied on Para 47
STATE OF PUNJAB v. DAVINDER PAL SINGH 569
BHULLAR & ORS. ETC
(1998) 8 sec 861 relied on Para 47 A
2006 (4) Suppl. SCR 742 relied on Para 47
2010 (1) SCR 991 relied on Para 47
2011 (3) SCR 597 relied on Para 47 B
1967 SCR 271 relied on Para 62
1969 (3) sec 698 relied on Para 62
1973 (1) SCR 691 relied on Para 62 c
1915 (3) sec 621 relied on Para 62
2004 (4) Suppl. SCR 904 relied on Para 62
2005 (5) sec 581 relied on Para 62 D
1981 (2) SCR 352 relied on Para 63
1975 (2) SCR 21 relied on Para 63
1982 (3) sec 405 relied on Para 63 E
2006 (9) Suppl. SCR 312 relied on Para 64
2000 (8) sec 395 relied on Para 73
(2001) 10 sec 191 relied on Para 73 F
(2005) 3 sec 422 relied on Para 74
2005 (4) Suppl. SCR 779 relied on Para 75
(1998) 3 sec 381 relied on Para 75 G
2004 (4) Suppl. SCR 505 relied on Para 75
(2006) 1 sec 530 relied on Para 75
2010 (11) SCR 589 relied on Para 75 H
570 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 1978 (3) SCR 971 referred to Para 77
1981 (3) SCR 213 referred to Para 77
1986 (3) SCR 553 referred to Para 77
B 1995 (6) Suppl. SCR 17 referred to Para 77
1997 (1) SCR 1048 referred to Para 77
1997 (1) Suppl. SCR 259 referred to Para 77
c AIR 2000 SC 2587 referred to Para 77
2002 (1) SCR 1099 referred to Para 77
2003 (5) Suppl. SCR 115 referred to Para 77
D 2011 (2) sec 54 referred to Para 77
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
Nos. 753-755 of 2009.
From the Judgment & Order dated 5.10.2007 in Criminal
E Misc. No. 152-MA of 2007; 06.11.2007 in Criminal Misc. No.
93535 of 2007 filed in Criminal Misc. No. 152-MA of 2007 and
4. 7.2008 in Criminal Misc. No. 152-MA of 2007 of the High
Court of Punjab and Haryana at Chandigarh.
F WITH
Criminal Appeal No. 2258-2264 of 2011.
Ram Jethmalani, Ranjit Kumar, RS. Khosla, AAG, K.K.
Khanna, AAG, Aprajita Singh, Meenakshi Grover, Saurabh Ajay
G Gupta, Pranav Dish, Karan Kalia, A.S. Virk, Kuldip Singh, J.K.
Sud, AK. Mehtra, Manoj Prasad for the Appellant.
P.P. Malhotra, ASG, K.N. Balgopal ,Colin Gonsalves, G.K.
Bharti, A.P. Mukundan, Nitya Nambiar, T. Koza, Rajesh
H Dhawan, Madhumita Bora, Balaji Srinivasan, Jayshree
STATE OF PUNJAB v. DAVINDER PAL SINGH 571
BHULLAR & ORS. ETC
Satpute, Jyoti Mendiratta, Navkiram Singh, P.K. Dey, Dr. Ch. A
Shamsudin Khan, A.K. Sharma, M.S. Daobia, S.S. Rawat, B.
Krishna Prasad, Kamini Jaiswal, Sanjay Jain and Jaspreet
Gogia for the Respondents. ·
The Judgment of the Court was delivered by B
DR. B.S. CHAUHAN, J. 1. Leave granted in the Special
Leave Petitions filed by Shri Sumedh Singh Saini.
2. These appeals have been preferred against the orders
dated 30.5.2007, 22.8.2007, 5.10.2007 and 4. 7.2008 in Crl. C
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 D
convenience of disposal of the appeals, we would refer only to
the criminal appeals filed by the State.
3. The Appeal& herein raise peculiar substantial questions
of law as to whether the High Court can pass an order on an E
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 F
procedure through an exceptionally unusual method which is not
in consonance with the statutory provisions of Cr.P.C.
4. FACTS:
G
(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 Sectiqns 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 H
572 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A 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, Sector-17, Chandigarh. On
B 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 D~rshan Singh Multani, father of Balwant
c 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,
o 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 Sing~ Multani, a challan was filed before the
E compet~nt court wherein he was declared a proclaimed
offender vide order dated 12.5.1993. After completion of the
investigaticn in FIR No.334 of 1991 dated 29.8.1991, the
Police chargesheeted eight persons. The chargesheet revealed
that an attempt was made by terrorists on the life of the then
F 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
G 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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 573
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
on the spot and many others were grievously injured. Three of A
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
(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 C
Criminal Miscellaneous No.152-MA of 2007 before the High
Court challenging the said acquittal. However, the appeal was
dismissed J/ide judgment and order dated 11.5.2007.
(D) After 20 days of the disposal of the said Crl. Misc. D
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 Heard". E
(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, F
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 attempt was made on the life of Shri M.S. Bitta, G
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 BalwantSingh Multani escaped
from police custody and his whereabouts were not known. One
H
574 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B 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').
C (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 t'1e Court by
filing a miscellaneous application on 16.9.2007, for issuance
D 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
E Court not to handover 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
ramifications.
F (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
G 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
H Multani regarding his missing son and further directed the CBI
STATE OF PUNJAB v. DAVINDER PAL SINGH 575
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
not to disclose the identity of any of the witnesses to anyone A
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 B
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 C
officer if it is handed over to the Punjab Police or even for
that matter to the Chandigarh Police."
(K) In the same matter, the Bench entertained anotner
Criminal Miscellaneous Application on 30.10:2007 filed by
Davinder Pal Singh Bhullar, (a convict in another case and D
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 E
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 F
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 G
Sections 120-B, 364, 343, 330, 167 and 193 IPC against Shri
S.S. Saini, the then SSP, UT, Chandigarh, Shri Baldev Singh
~aihi, the then DSP, UT, Chandigarh, Shri Harsahay Shanna,
the then SJ, P.S. Central, Chandigarh, Shri Jagir Singh, the then ·
SJ, P.S. Central, Chandigarh and other unknown police officials H
576 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
report.
B
5. The 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
C 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 earty 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
D 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
E 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 "Mr. Justice X")
F 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
G judgment of acquittal, the Court has become functus officio and
it had no competence to reopen the case vide order dated
30.5.2007.
6. This Court vide order dated 11. 7 .2008 stayed the
H investigation until further orders.
STATE OF PUNJAB v. DAVINDER PAL SINGH 577
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
7. Shri Ram Jethmalani, Shri Ravi Shankar Prasad and A
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 B
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 C
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
0
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 E
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 F
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 years. More so, Mrs. Jagir Kaur, sister of Balwant
Singh Bhullar, had filed Crl. W.P. No. 1062 of 1997 for G
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 H
578 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A 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.
B 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
c 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.
8. On the other hand, S/Shri K.N. Balgopal and Colin
D 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
E 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
F 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
G 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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 579
BHULLAR & ORS. ETC [DR. S.S. CHAUHAN, J.]
chargesheet itself that Navneet Singh and Gurjant Singh, A
proclaimed offenders, had been killed in encounters. However,
such 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 B
of Chandigarh has approached this Court against the same
impugned judgment and order and special leave petition has
been dismissed in fimine. 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 c
not be quashed. The CBI be permitted to investigate the cases.
Thus, the appeals are liable to be dismissed.
9. We have considered the rival submissions made by
learned counsel for the parties and perused the record.
D
LEGAL ISSUES :
I. JUDICIAL BIAS
10. There may be a case where allegations may be made
against a Judge of having bias/prejudice at any stage of the E
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 officiai from acting as an adjudicator. Further, if such F
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
controversy.
G
11. In respect of judicial bias, the statement made by Frank
J. of the United States is worth quoting:-
"lf, however, 'bias' and 'partiality' be defined to mean the
total absence of preconceptions in the mind of the Judge, H
580 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A 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
B 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
C Pathak & Ors., AIR 1998 SC 2050).
12. To recall the words of Mr. Justice Frankfurter in Public
Utilities Commission of the District of Columbia v. Franklin
S. Po/lak, 343 US 451 (1952) 466: The Judicial process
D demands that a judge moves within the framework of relevant
legal rules and the covenanted modes of 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
E 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.
F 13. In Bhajan Lal, Chief Minister, Haryana v. Mis. 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
G 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
his choice. The Court held as under:-
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 581
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
"Bias is the second limb of natural justice. Prima A
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 B
arise from a personal relationship or from a relationship
with the subject-matter, from a close relationship or from
a tenuous one."
14. The principle in these cases is rlerived from the legal C
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 D
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). E
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 F
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: AU. 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). G
15. In 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 H
582 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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."
16. The test of real likelihood of bias is whether a
reasonable person, in possession of relevant information, would
8
have thought that bias was likely and whe:her 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
C 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: Vassi/iades v. Vassiliades, AIR 1945 PC 38;
D S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC
2701; and Ranjit Thakur v. Union of India & Ors., AIR 1987
SC 2386).
17. In Rupa Ashok Hurra v. Ashok Hurra & Anr., (2002)
E 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 ii 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
F 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
G 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 Parle Pinochet
Ugarte (No.2) 1999 All ER, 577, in which the House of Lords
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 583
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
on 25.11.1998, restored warrant of arrest of Senator Pinochet A
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 (Al) which had become a
party to the case. This was not disclosed by him at the time of B
the hearing of the case by the House. Pinochet Ugarte, on
coming to know of that fact, sought reconsideration of the said
judgment of ttie 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 c
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 D
is subsequently thought to be wrong."
18. In 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 E
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 F
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 G
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 H
584 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A 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.
19. In Justice P.O. Dinakaran v. Hon'ble Judges Inquiry
B 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
C 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.
D 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.
E 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
F 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
G proceedings will be vitiated. This rule applies to the judicial and
administrative authorities required to act judicially or quasi-
judicially."
20. Thus, it is evident that the allegations of judicial bias
H are required to be scrutinised taking into consideration the
STATE OF PUNJAB v. DAVINDER PAL SINGH 585
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
factual matrix of the case in hand. The court must bear in mind A
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 B
that regard in the mind of the party. However, once such an
apprehension exists, the trial/judgment/order etc. stands vitiated
for want of impartiality. Such judgment/order is a nullity and the
trial "coram non-Judice".
II. DOCTRINE OF WAIVER:
c
21. In 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, D
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 E
failure of the party to take the objection. 'Waiver can be inferred
only if and after it is shown that the par.y knew about the relevant
facts and was aware of his right to take the objection in
question."
F
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 G
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. Panna/af Binjraj & Ors. v. Union of India & Ors., H
586 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A AIR 1957 SC 397; and Justice P.D. Dinakaran (Supra))
22. In Mis. Power Control Appliances & Ors. v. Sumeet
Machines Pvt. Ltd., (1994) 2 SCC 448 this Court held as
under:-
B "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
c 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
D 2002 SC 2057. Thus, the Co.urt has to examine the. facts and
circumstances in an individual case.
23. Waiver is an intentional relinquishment of a right. It
involves conscious abandonment of an existing legal right,
E 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
F 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;
G Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal
Corporation & Ors., (1992) Suppl 1 SCC 5; Mis. Sikkim Subba
Associates v. State of Sikkim, AIR 2001 SC 2062; and Krishna
Bahadur v. Mis. Puma Theatre & Ors., AIR 2004 SC 4282).
H 24. This Court in Municipal Corporation of Greater
STATE OF PUNJAB v. DAVINDER PAL SINGH 587
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
Bombay v. Dr. Hakimwadi Tenants' Association & Ors., AIR A
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 B
waiver is an estoppel and where there is no estoppel, there
is no waiver. Estoppel and waiver are questions of
conduct and must necessarily be determined on the facts
of each case ...... .
There is no question of estoppel, waiver or abandonment. C
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 D
rights, by Respondents 4-7 nor would this disentitle the
tenants from maintaining the writ petition."
25. Thus, from the above, it is apparent that the issue of
bias should be raised by the party at the earliest, if it is aware E
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 F
without raising any objection. Acquiescence, in 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 G
apprehending the bias/prejudice is a party to the case. The
question of waiver would not arise against a person who is not
a party to the case as such person has no opportunity to raise
the issue of bias.
H
588 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Ill. BAR TO REVIEW/ALTER· JUDGMENT
26. There 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
8 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
C 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: Harl
0 Smgh Mann v. Harbhajan Singh Bajwa & Ors., AIR 2001 SC
43; and Chhanni v. State of U.P., AIR 2006 SC 3051).
Moreover, the prohibition contained in Section 362 Cr.P.C.
is absolute; after the judgment is signed, even the High Court
E 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; Harl Singh Mann
(supra); and State of Kera/a v. M. M. Ma.nikantan Nair, AIR
2001 SC 2145).
F
27. If 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
G 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
H manifestly contrary to the audi alteram partem rule of natural
STATE OF PUNJAB v. DAVINDER PAL SINGH 589
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
justice. The power of recall is different from the power of altering/ A
reviewing the judgment. However, the party seeking recall/
alteration has to establish that it was not at fault. (Vide:
Chitawan & Ors. v. Mahboob llahi, 1970 Crl.L.J. 378; Deepak
Thanwardas Balwani v. State of Maharashtra & Anr., 1985
Crl.L.J. 23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); B
Swarth Mahto & Anr. v. Dharmdeo Narain Singh, AIR 1972
SC 1300; Makkapati Nagaswara Sastri v. S.S. Satyanarayan,
AIR 1981 SC 1156; Asif 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). C
28. This 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 D
the Code itself. (Vide: State Represef!ted by D.S.P., S.B:C.l.D.,
Chennai v. K. V. Rajendran & Ors., AIR 2009 SC 46).
29. In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC
736, this Court held that the prohibition in Section 362 Cr.P.C. E
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, howj'!ver, refer to
those provisions only where the Court has been expressly
authorised by the Code or other law to alter or review its F
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.
30. Thus, the law on the issue can be summarised to the G
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 H
590 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A omission is left to be corrected only by the appropriate forum
in accordance with law.
IV. INHERENT POWERS UNDER SECTION 482 Cr.P.C.
31. The inherent power under Section 482 Cr.P.C. is
B 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
C 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 the High Court to exercise its inherent powers in the
prevailing circumstances and pass appropriate orders to
D 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
E eonclusion 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).
32. The inherent power of the court under Section 482
Cr.P.C. is saved only where an. order has been passed br the
F 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
G 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 fo be exercised
sparingly with circumspection and in the rarest of rare cases.
H (Vide: Kurukshetra University & Anr. v. State of Haryana &
STATE OF PUNJAB v. DAVINDER PAL SINGH 591
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
Anr., AIR 1977 SC 2229; and State of WB. & Ors. v. Sujit A
Kumar Rana, (2004) 4 SCC 129).
33. The 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 B
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. However, such expressions do not
confer unlimited/unfettered jurisdiction on the High Court as the C
"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 D
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 a/ique, concedit, conceditur et id
sine quo res ipsa esse non potesr. However, the High Court E
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: La/it Mohan
Monda/ & Ors. v. Benoyendra Nath Chatterjee, AIR 1982 SC F
785; Rameshchandra Nandla/ Parikh v. State of Gujarat &
Anr., AIR 2006 SC 915; Central Bureau of Investigation v.
Ravi Shanker Srivastava, /AS & Anr., AIR 2006 SC 2872;
lnder Mohan Goswami & Anr. v. State of Uttaranchal & Ors.,
AIR 2008 SC 251; and Pankaj Kumar v. State of Maharashtra G
& Ors., AIR 2008 SC 3077).
34. The 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 H
592 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 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
B 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., (2004) 7 SCC 768; and Divine Retreat
C Centre v. State of Kera/a & Ors., AIR 2008 SC 1614).
35. The 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
D 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 892).
E
36. In 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(11A) of
F the Andhra Pradesh Forest Act as it is distinct from a trial
before a court for the commission of an offence.
37. In 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 :
G
"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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 593
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
powers, issues directions contravening the statutory provisions A
laying down the procedure of investigation, it would be
unwarranted in law.
38. In Rajan Kumar Machananda v. State of Kamataka,
1990 (supp.) sec 132, this Court examined a case as to B
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. C
Thus, the statutory bar cannot be circumvented.
39. This 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 o
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. (See: Joseph Peter v. State of Goa,
Daman and Diu, AIR 1977 SC 1812). E
40. It 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 F
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 G
its source in the maxim "Quadolex a/iquid a/icui 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
H
594 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
.A 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
B 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
c 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
D . 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
E 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
F 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 power. There has to be a nexus and
a direct co-relation to any existing proceeding, not foreclosed
G by any other form under the Code, to the subject matter for
which such power is to be exercised.
Application under 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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 595
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
for quashing criminal proceedings in appropriate cases. Such A
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 B
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 c
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. Inherent jurisdiction can be
exercised if injustice done to a party, e.g., a clear mandatory
0
provision of law is overlooked 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 E
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 remediless.
On the contrary, the constitutional remedy of writs are available. F
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 G
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 confined. It is something different
that the same court exercising authority can, in relation to the
same subject matter, invoke its writ jurisdiction as well. H
596' SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R
A 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 was never the wisdom of the Legislature.
To confer un-briddled inherent power would itself be trenching
B upon the authority of the Legislature.
V. JURISDICTION OF THE BENCH :
41. The court is "not to yield to spasmodic sentiments to
vague and unregulated benevolence". The court "is to exercise
C 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
D 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,
E 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
F
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
G
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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 597
BHULLAR & ORS. ETC (DR. B.S. CHAUHAN, J.]
moods, predilections, emotions and prejudices. It is most A
unfortunate that the order under appeal founders on this
touchstone and is wholly unsustainable".
42. This 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. B
Narayan Shamrao Puranik, AIR 1982 SC 1198; lnder 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 C
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 D
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
Bench. The Court held that a Judge or a Bench of Judges can
assume jurisdiction in a case pending in the High Court only if E
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 F
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 G
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
H
598 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A not only unjustified and unwarranted but also without jurisdiction
and made the Judge coram non-judice.
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.
B
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
c 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 particular case.
D 43. In 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
E 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:
F
44. In Secretary, Minor Irrigation and Rural Engineering
SeNices, U.P. & Ors. v. Sahngoo Ram Arya &Anr., AIR 2002
SC 2225, 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
G 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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 599
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
of 'ifs' and 'buts' and think it appropriate that inquiry should be A
made by the CBI.
45. In Divine Retreat Centre (Supra), this Coi.1rt held that
·the High Court could have passed a judicial order directing
•investigation against a person and his activities only after giving B
•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
inatural justice. A person against whom an inquiry is directed
l!Tlust have a reasonable opportunity of being heard as he is
•ikely to be adversely affected by such order and, particularly, C
rJVhen such an order results in drastic consequence of affecting
llis reputation.
46. In D. Venkatasubramaniam & Ors. v. M.K.Mohan
"<rishnamachari & Anr., (2009) 10 SCC 488, this Court held D
1hat an order passed behind the back of a party is a nullity and
•iable to be set aside only on this score. Therefore, a person
egainst whom an order is passed on the basis of a criminal
)etition filed against him, he should be impleaded as a
espondent being a necessary party. • E
1,7. This Court in Disha v. State of Gujarat & Ors., AIR
W11 SC 3168, after considering the various judgments of this
~ourt, particularly, in Vineet Narain & Ors. v. Union of India &
J:..nr., AIR 1996 SC 3386; Union of India v. Sushi/ Kumar Modi,
1998) 8 SCC 661; Rajiv Ranjan Singh 'La/an' (VIII) v. Union F
lf India, (2006) 6 SCC 613; Rubabbuddin Sheikh v. State of
'3ujarat & Ors., AIR 2010 SC 3175; and Ashok Kumar Todi
• Kishwar Jahan & Ors., (2011) 3 SCC 758; held that the court
1
~n transfer the matter to the CBI or any other special agency
mly when it is satisfied that the accused is a very powerful and G
1fluential person or the State Authorities like high police officials
ire involved in the offence and the investigation has not been
•roceeded with in proper direction or the· investigation had
•een conducted in a biased manner. In such a case, in order
H
600 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A to do complete justice and having belief that it would lend
credibility to the final outcome of the investigation, such
directions may be issued.
48. Thus, in view of the above, it is evident that a
B 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 sougnt, is to be
impleaded as a party and must be given a reasonable
C 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
D 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 CASES :
E
49. The present appeals are required to be decided in the
light of the aforesaid settled legal propositions.
50. It is evident from the judgment and order dated
11.5.2007 that Criminal Misc. No.152-MA of 2007 stood
F 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
G 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.
H 51. Two different orders are available on the record of this
STATE OF PUNJAB v. DAVINDER PAL SINGH 601
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
case. The aforesaid marking "put up for further hearing" had A
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 B
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 on 30.5.2007 as no order had ever been
passed by the court in this regard. c
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 D
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 (Reid.), 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 E
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 F
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 G
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. H
602 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A The order dated 6.11.2007 reveals that the Court enlarged
the scope of investigation by the CBI by including investigatiqns
qua Balwant Singh Bhullar and Manjit Singh.
Relevant part of the order dated 4.7.2008 reads as under:
B "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
C 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."
0 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.
52. The record reveals that Davinder Pal Singh Bhullar
E 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
F 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
G 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
H for his uncle Manjit Singh. The High Court had rejected the said
STATE OF PUNJAB v. DAVINDER PAL SINGH 603
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
petition vide order dated 15.7.1997 and the matte·r was not A
agitated further. Thus, it attained finality.
53. The 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 B
order dated 23.5.2008 gives a different impression altogether.
54. Admittedly, 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 C
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 o
vide 1>rder 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 E
and are making efforts to procure their presence, we feel
that there is no need for the Special Investigation Team
(S.l.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.l.T.) for this purpose. At this stage, now, there is no need F
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." G
(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 H
604 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B 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
c 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
D have directed to place the said applications before the Bench
dealing with similar petitions.
55. It is evident from the order dated 30.5.2007 that in spite
of the fact that the appeal stood disposed of vide judgment and
E 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
F 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
G 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 30.5.2007.
56. In the counter affidavit filed by Davinder Pal Singh
Bhullar, respondent no.1 before this Court, it has been stated
H as under:
STATE OF PUNJAB v. DAVINDER PAL SINGH 605
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
"W,X, Y&Z That in reply to these grounds, it is submitted A
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 B
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 C
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
0
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 E
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 F
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 ilope that at some time justice G
would prevail."
(Emphasis added)
H
606 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A 57. So 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
B 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
C 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.
58. The impugned order dated 5.10.2007 though gives an
D 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
E to be ascertained as to who were the police officers
responsible for it, so that they could be brought to justice.
'
59. There could be no justification for the Bench concerned
to entertain applications filed under Section 482 Cr.P.C. as
F 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.
G 60. As 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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 607
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.)
therefore, there could be no question of raising any protest on A
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 B
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 C
platfonn 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 i$ not 0
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 E
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. F
61. Undoubtedly, 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 G
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.
H
608 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
·A 62. A 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
8 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
C . 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
D 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 Kera/a & Ors., AIR 2004 SC 4733; and K.
E Vidya Sagar v. State of Uttar Pradesh & Ors., AIR 2005 SC
2911).
63. There may be certain exceptions to the rule that a
person was not aware of the correct facts while filing the first
F 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
G permissible. (Vide: Lalubhai Jogibhai Patel v. Union of India
& Ors., AIR 1981 SC 728; Ajit Kumar Kavirsj v. Distt.
Magistrate, Birbhum & Anr., .AIR 1974 SC 1917; and Sunil
Dutt v. Union of India & Ors., AIR 1982 SC 53).
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 609
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
64. While dealing with a similar issue, this Court in Srikant A
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 B
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".
c
65. Thus, 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 oraised in subsequent writ petition could not be known
to the writ petitioner while filing the earlier writ petition. D
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
been entertained.
E
66. A large number of documents have been submitted to
the court under sealed COVf!r 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 F
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 G
Punjab and Haryana High Court confronted Mr. Justice X with
the said reports. On the basis of 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 H
610 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A even examined one Superintendent of Police of the intelligence
wing who had worked directly under Shri S.S. Saini while
conducting the enquiry.
67. The High Court has adopted an unusual and
unwarranted procedl!re, not known in law, while issuing certain
B 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 miss.ing
persons. The court directed the CBI to treat affidavits handed
C over by the applicant Shri Bhullar who admittedly had inimical
relation with Shri S.S. Saini, as statement of eye-witnesses. The
court further direct~d 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
D stage. We fail to understand how the court could direct the CBI
to adopt such an unwarranted course.
68. The High Court accepted certain documents submitted
by Shri R.S. Bains, advocate, as is evident from the order
E dated 22.8.2007 and it 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.
69. When the matter came up for hearing on 2.4.2008, in
spite of the fact that the matter was heard throughout by a
F 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:
G
"Status report, which has been presente1 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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 611
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
court today. A
To come up on 4.4.2008.
Sd/-
Judge•
B
70. The 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 which in turn is based on the affidavits C
submitted by the applicants who had filed the petitions under
Section 482 Cr.P.C.
71. The 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 D
362 Cr.P.C. coupled with the principles of constructive res
}udicata; 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. E
72. It 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 F
maxim "sub/ato fundamento cadit opus" meaning thereby that
foundation being removed, structure/work falls, comes into play
and applies on all scores in the present case.
. 73. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000
.SC 3243; and State of Kera/a v. Puthenkavu N.S.S. G
'.Karayogam & Anr., (2001) 10 SCC 191, this Court observed
ithat 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
H
612 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A administrative proceedings equally.
74. Similarly in Manga/ 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
B est and have to be necessarily set aside.
75. In 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.
c (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, SB/ v.
Rakesh Kumar Tewari, (2006) 1 SCC 530; and Ritesh Tewari
D & Anr. v. State of U.P. & Ors., AIR 2010 SC 3823).
76. Thus, 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
E be declared non est.
77. The 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
F 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
G 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
H
STATE OF PUNJAB v. DAVINDER PAL SINGH 613
BHULLAR & ORS. ETC [DR. B.S. CHAUHAN, J.]
Special Leave Petition in limine does not mean that the A
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 B
reason, which may be other than merit of the case. An order
rejecting the Special Leave Petition at the threshold without
detailed reasons, therefore, does not constitute any declaration
of law or a binding precedent.
The doctrine of res judicata does not apply, if the case is C
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.
D
(See: The Workmen of Cochin Port Trust v. The Board
f Trustees of the Cochin Port Trust & !.nr., AIR 1978 SC
283; Ahmedabad Manufacturing & Calico Printing Co. Ltd.
1. The Workmen & Anr., AIR 1981 SC 960; Indian Oil
:;orporation Ltd. v. State of Bihar & Ors., AIR 1986 SC 1780; E
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 Kera/a & Anr., AIR 2000 SC F
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).
G
CONCLUSIONS :
78. The 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 H
614 SUPREME COURT REPORTS (2011] 15 (ADDL.) S.C.R.
A 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,
8 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
C unsustainable.
79. In 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.
D
80. However, 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.
D.G. Appeals allowed.
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "judicial bias"Sign in to search