State Of Punjab vs Davinder Pal Singh Bhullar & Ors.Etc

State of Punjab ...Appellant

Versus

Davinder Pal Singh Bhullar & Ors. etc. ...Respondents

With

CRIMINAL APPEAL NO. 2258-2264 of 2011

(Arising out of SLP(Crl.) Nos. 6503-6509 of 2011)

Sumedh Singh Saini ...Appellant

Versus

Davinder Pal Singh Bhullar & Ors ...Respondents

J U D G M E N T

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. Misc. No. 152-

MA of 2007; order dated 19.9.2007 in Crl. Misc. No. 86286 of 2007 in

Crl. Misc. No. 152-MA of 2007; and orders dated 2.11.2007 and

6.11.2007 in Crl. Misc. No. 93535 of 2007 in Crl. Misc. No. 152-MA of

2007 passed by the High Court of Punjab and Haryana at Chandigarh.

For the sake of convenience of disposal of the appeals, we would refer

only to the criminal appeals filed by the State.

3. The Appeals herein raise peculiar substantial questions of law as

to whether the High Court can pass an order on an application

entertained after final disposal of the criminal appeal or even suo motu

particularly, in view of the provisions of Section 362 of the Code of

Criminal Procedure, 1973 (hereinafter called Cr.P.C.) and as to whether

in exercise of its inherent jurisdiction under Section 482 Cr.P.C. the

High Court can ask a particular investigating agency to investigate a

case following a particular procedure through an exceptionally unusual

method which is not in consonance with the statutory provisions of

Cr.P.C.

4. FACTS:

(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

2 Sections 3 & 4 of Explosive Substances Act, 1908 was registered at

Police Station, Sector 17, Chandigarh. In connection with an FIR dated

13.12.1991, one Balwant Singh Multani was arrested in a case in

respect of the FIR No.440 registered under Sections 212 and 216 IPC,

Sections 25/54/69 of Arms Act 1959, and Sections 3 & 5 of the

Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter

called as `TADA Act') at Police Station, Sector-17, Chandigarh. On

19.12.1991, the said accused Balwant Singh Multani escaped from the

custody of the police from Police Station Qadian (Punjab) for which

FIR No.112 dated 19.12.1991 under Sections 223 and 224 IPC was

registered at Police Station Qadian (Punjab). Shri Darshan Singh

Multani, father of Balwant Singh Multani filed Criminal Writ Petition

No.1188 of 1991 before the High Court of Punjab & Haryana under

Article 226 of the Constitution of India, 1950, (hereinafter called

"Constitution"), for production of the said accused Balwant Singh

Multani. The State Government filed a reply to the same, explaining

that the said accused had escaped from police custody and after

considering the case, the High Court dismissed the Habeas Corpus

Petition. After completion of the investigation in respect of FIR No.112

of 1991 regarding the escape of Balwant Singh Multani, a challan was

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filed before the competent court wherein he was declared a proclaimed

offender vide order dated 12.5.1993. After completion of the

investigation in FIR No.334 of 1991 dated 29.8.1991, the Police

chargesheeted eight persons. The chargesheet revealed that an attempt

was made by terrorists on the life of the then SSP, Chandigarh, by using

explosives. In a thunderous explosion that followed, the Ambassador

Car of the SSP, Chandigarh, was blown high into the air whereafter it

fell down ahead at some distance completely shattered. HC Amin

Chand, the driver of the car and ASI Lalu Ram, PSO, died on the spot.

ASI Ramesh Lal, PSO, and CRPF jawans in the Escort vehicle were

grievously injured. The bomb explosion was carried out by the terrorists

from a parked car in order to kill the SSP, UT, Chandigarh, and other

police personnel and this explosion was conducted with explosives

operated with a remote control, because of which, two police personnel

died on the spot and many others were grievously injured. Three of the

accused, namely, Davinder Pal Singh Bhullar alias Master, Partap

Singh Maan and Gursharan Kaur Maan were subjected to trial. The

other co-accused namely, Navneet Singh, Manjit Singh, Manmohan Jit

Singh, Gurjant Singh and Balwant Singh were not traceable. They were

declared proclaimed offenders.

4 (B) On conclusion of the trial, the Court vide judgment and order

dated 1.12.2006 acquitted the three accused giving them benefit of

doubt.

(C) Aggrieved, the State (U.T., Chandigarh) preferred Criminal

Miscellaneous No.152-MA of 2007 before the High Court challenging

the said acquittal. However, the appeal was dismissed vide judgment

and order dated 11.5.2007.

(D) After 20 days of the disposal of the said Crl. Misc. No.152-MA of

2007, i.e., appeal against acquittal, the High Court again took up the

case suo motu on 30.5.2007 and directed the authorities to furnish full

details of the proclaimed offenders in respect of the FIR No.334/91

dated 29.8.1991 and the Bench marked the matter "Part Heard".

(E) Shri Dinesh Bhatt, SSP, Chandigarh submitted an affidavit

dated 4.8.2007, giving information regarding all the proclaimed

offenders in that case. One of them was Davinder Pal Singh Bhullar,

who had initially been declared as a proclaimed offender in the said

case on 2.3.1993. However, he had subsequently been arrested in a

case relating to FIR No.316 of 1993, Police Station, Parliament Street,

Delhi and FIR No.150 of 1993, Police Station, Srinivas Puri, New Delhi

and had been sentenced to death in a case in which an assassination

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attempt was made on the life of Shri M.S. Bitta, the then President, All

India Youth Congress, in which several persons were killed and Shri

Bitta's legs were amputated. It was also mentioned therein that

Balwant Singh Multani escaped from police custody and his

whereabouts were not known. One proclaimed offender, Navneet

Singh had been killed in a police encounter in Rajasthan on 26.2.1995.

(F) After considering the said affidavit filed by Shri Dinesh Bhatt,

SSP, the High Court vide order dated 22.8.2007 directed the

Chandigarh Administration to constitute a Special Investigation Team

to enquire into all aspects of the proclaimed offenders and submit a

status report. The High Court also issued notice to the Central Bureau

of Investigation (hereinafter called the `CBI').

(G) It was during the pendency of these proceedings that Shri

Darshan Singh Multani, father of Balwant Singh Multani, whose

habeas corpus writ petition had already been dismissed by the High

Court in the year 1991, approached the Court by filing a miscellaneous

application on 16.9.2007, for issuance of directions to find out the

whereabout of his son Balwant Singh Multani.

(H) In response to the show cause notice dated 22.8.2007, the CBI

submitted its reply on 3.10.2007 requesting the High Court not to

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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.

(I) The High Court vide order dated 19.9.2007 took note of the fact

that Manmohan Jit Singh, an employee of IBM, was reported by the US

Department of Justice, Federal Bureau of Investigation, to be one of the

proclaimed offenders. In view thereof, an affidavit was filed by

Chandigarh Administration dated 5.10.2007 submitting that the

proclaimed offender Manmohan Jit Singh had left for abroad.

(J) However, the High Court vide order dated 5.10.2007, directed

the CBI to investigate the allegations of Darshan Singh Multani

regarding his missing son and further directed the CBI not to disclose

the identity of any of the witnesses to anyone except the High Court and

to code the names of witnesses as witness A, B & C and further to

submit periodical status reports. The order further reads:-

"However, Shri Sumedh Singh Saini, Director,

Vigilance Bureau, Punjab, who at that time, i.e., on

11.2.1991 was posted as Senior Supdt. of Police

was at helm of affairs of Chandigarh Police and

was serving as the Sr. Supdt. of Police, UT. As of

date, he is holding a very important post and is in a

position to influence the investigating officer if it is

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handed over to the Punjab Police or even for that

matter to the Chandigarh Police."

(K) In the same matter, the Bench entertained another Criminal

Miscellaneous Application on 30.10.2007 filed by Davinder Pal Singh

Bhullar, (a convict in another case and lodged in Tihar Jail) regarding

allegations that his father Shri Balwant Singh Bhullar and maternal

uncle Shri Manjit Singh had been abducted in the year 1991. The High

Court vide order dated 6.11.2007 directed the CBI to investigate the

allegations made in the complaint filed by Davinder Pal Singh Bhullar

and further to get his statement recorded under Section 164 Cr.P.C., so

that the witness may not resile under duress or be won over by any kind

of inducement. An order was passed rejecting the submission made on

behalf of the CBI that the alleged kidnapping of Shri Balwant Singh

Bhullar and Shri Manjit Singh had no connection with the said case

arising out of FIR No.334 dated 29.8.1991.

(L) The CBI after making a preliminary investigation/enquiry on

the application, registered an FIR on 2.7.2008 under Sections 120-B,

364, 343, 330, 167 and 193 IPC against Shri S.S. Saini, the then SSP,

UT, Chandigarh, Shri Baldev Singh Saini, the then DSP, UT,

Chandigarh, Shri Harsahay Sharma, the then SI, P.S. Central,

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Chandigarh, Shri Jagir Singh, the then SI, P.S. Central, Chandigarh and

other unknown police officials of UT Police, Chandigarh, and P.S.

Qadian. The CBI further submitted a status report on 4.7.2008 and after

considering the same, the High Court issued further directions to

complete the investigation within the stipulated period and submit a

further report.

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 of the State having outstanding entries in

his Service Book. He is an honest and hardworking officer and has

taken drastic steps to curb terrorism in the State in early 1990s. The

terrorists had planned a diabolical act and an attempt was made on his

life, wherein his three bodyguards were killed and three others were

seriously injured. The officer himself suffered grievous injuries. The

terrorists had also even chased him up to England when he went there

for a social visit. They had planned to attack the said officer. They were

arrested by the police and put to trial and also stood convicted. A

sentence of four years had been imposed. These appeals have been

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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") on the

direction of the Chief Justice of Punjab & Haryana High Court and,

thus, the said Judge ought not to have proceeded with the matter, rather

should have recused himself from the case. More so, as the judgment in

appeal against acquittal had been passed by the Court on 11.5.2007

upholding the judgment of acquittal, the Court has become functus

officio and it had no competence to reopen the case vide order dated

30.5.2007.

6. This Court vide order dated 11.7.2008 stayed the investigation until

further orders.

7. Shri Ram Jethmalani, Shri Ravi Shankar Prasad and Shri Ranjit

Kumar, learned senior counsel appearing for the appellants, have

submitted that once the judgment in appeal against acquittal has been

rendered by the High Court on 11.5.2007, in view of the complete

embargo of the provisions of Section 362 Cr.P.C., the Court having

become functus officio was not competent to reopen the case and, thus,

1

proceedings subsequent to 11.5.2007 are a nullity for want of

competence/jurisdiction. More so, the proceedings that continued after

the said judgment, by illegally reopening the case, were a result of

judicial bias of Mr. Justice X, which was just to take revenge against

Shri S.S. Saini, who had conducted an inquiry against Mr. Justice X and

thus, all such proceedings are liable to be quashed. None of the parties

had ever named Mr. S.S. Saini in connection with any of the cases. It

was Mr. Justice X, who, on his personal knowledge, mentioned his

name in court order dated 5.10.2007. Such a course is not permissible

in law. More so, so far as Balwant Singh Multani's case is concerned,

his father Darshan Singh Multani (at the relevant time an officer of

Indian Administrative Service) had approached the High Court for the

same relief and the case stood dismissed in the year 1991 and he had

not taken up the matter any further. Thus, the proceedings attained

finality. Application of Mr. Multani could not have been entertained

after the expiry of 16 years. The same position existed in respect of the

application filed by Davinder Pal Singh Bhullar (who had been

convicted and awarded a death sentence in another case and the same

stood confirmed by this Court) in respect of abduction of his father

Balwant Singh Bhullar and uncle Manjit Singh in the year 1991 without

1

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 production of Balwant Singh Bhullar, which stood dismissed

vide order dated 15.7.1997 only on the ground of delay. A second writ

petition for habeas corpus is not maintainable and is barred by the

principles of res judicata. The CBI submitted that investigation of the

said alleged abduction be not tagged with that of the involvement of the

officer and disappearance of Balwant Singh Multani, as both the

incidents were separate and independent and had no connection with

each other. The High Court after taking note of the said submissions in

its order dated 6.11.2007 illegally clubbed both the said applications.

The applications filed by Davinder Pal Singh Bhullar and Darshan

Singh Multani could not be filed/entertained in the disposed of criminal

appeal. Had the said applications been filed independently, the same

could be rejected as being filed at a much belated stage. Even

otherwise, the said applications could have gone to a different Bench.

Thus, by entertaining those applications in a disposed of criminal

appeal, the Bench presided over by Mr. Justice X violated the roster

fixed by the Chief Justice. Thus, the proceedings are liable to be

quashed.

1 8. On the other hand, S/Shri K.N. Balgopal and Colin Gonsalves,

learned senior counsel appearing for respondents - private parties and

Shri P.K. Dey, learned counsel appearing for the CBI, have submitted

that in order to do complete justice in the case, the High Court has

exercised its power under Section 482 Cr.P.C., no interference is

required by this Court on such technical grounds. The provisions of

Section 362 Cr.P.C. are not to be construed in a rigid and technical

manner as it would defeat the ends of justice. The two-fold aim of

criminal justice is that "guilt shall not escape nor innocence suffer."

Allegations made against the Presiding Judge are scandalous and false

and do not require any consideration whatsoever. The name of Mr. S.S.

Saini, SSP stood mentioned in the record of the case before the Bench.

The chargesheet filed after investigation of allegations in the FIR dated

19.8.1991 and in the judgment of the Trial Court dated 1.12.2006 speak

that the attack was made on him. It is wrong that his name has been

added by the Presiding Judge in the Bench for his personal revenge on

his personal knowledge. So far as names of two proclaimed offenders,

who had been killed in an encounter are concerned, it has been

mentioned in the chargesheet itself that Navneet Singh and Gurjant

Singh, proclaimed offenders, had been killed in encounters. However,

1

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 of Chandigarh has

approached this Court against the same impugned judgment and order

and special leave petition has been dismissed in limine. More so, after

conducting a preliminary enquiry, the CBI has registered a First

Information Report (hereinafter called the "FIR") on 2.7.2008 which

should not be quashed. The CBI be permitted to investigate the cases.

Thus, the appeals are liable to be dismissed.

9. We have considered the rival submissions made by learned

counsel for the parties and perused the record.

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 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.

1 Suspicion or bias disables an official from acting as an adjudicator.

Further, if such allegation is made without any substance, it would be

disastrous to the system as a whole, for the reason, that it casts doubt

upon a Judge who has no personal interest in the outcome of the

controversy.

11. In respect of judicial bias, the statement made by Frank J. of the

United States is worth quoting:-

"If, however, `bias' and `partiality' be defined to

mean the total absence of preconceptions in the

mind of the Judge, then no one has ever had a fair

trial and no one will. The human mind, even at

infancy, is no blank piece of paper. We are born

with predispositions ....... Much harm is done by the

myth that, merely by....... taking the oath of office

as a judge, a man ceases to be human and strips

himself of all predilections, becomes a passionless

thinking machine."

[In re: Linahan, 138 F. 2nd 650 (1943)]

(See also: State of West Bengal & Ors. v. Shivananda Pathak &

Ors., AIR 1998 SC 2050).

12. To recall the words of Mr. Justice Frankfurter in Public Utilities

Commission of the District of Columbia v. Franklin S. Pollak, 343

US 451 (1952) 466: The Judicial process demands that a judge moves

within the framework of relevant legal rules and the covenanted modes

1

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 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.

13. In Bhajan Lal, Chief Minister, Haryana v. M/s. Jindal

Strips Ltd. & Ors., (1994) 6 SCC 19, this Court observed that there

may be some consternation and apprehension in the mind of a party and

undoubtedly, he has a right to have fair trial, as guaranteed by the

Constitution. The apprehension of bias must be reasonable, i.e. which a

reasonable person can entertain. Even in that case, he has no right to ask

for a change of Bench, for the reason that such an apprehension may be

inadequate and he cannot be permitted to have the Bench of his choice.

The Court held as under:-

"Bias is the second limb of natural justice.

Prima facie no one should be a judge in what is to

be regarded as `sua causa', whether or not he is

named as a party. The decision-maker should have

no interest by way of gain or detriment in the

outcome of a proceeding. Interest may take many

forms. It may be direct, it may be indirect, it may

1

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 derived from the legal maxim -

nemo debet esse judex in causa propria sua. It applies only when the

interest attributed is such as to render the case his own cause. This

principle is required to be observed by all judicial and quasi-judicial

authorities as non-observance thereof, is treated as a violation of the

principles of natural justice. (Vide: Rameshwar Bhartia v. The State

of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State

of Bihar & Anr., AIR 1960 SC 468; Meenglas Tea Estate v. The

Workmen, AIR 1963 SC 1719; and The Secretary to the

Government, Transport Department, Madras v. Munuswamy

Mudaliar & Ors., AIR 1988 SC 2232).

The failure to adhere to this principle creates an apprehension

of bias on the part of the Judge. The question is not whether the Judge

is actually biased or, in fact, has really not decided the matter

impartially, but whether the circumstances are such as to create a

reasonable apprehension in the mind of others that there is a likelihood

of bias affecting the decision. (Vide: A.U. Kureshi v. High Court of

1

Gujarat & Anr., (2009) 11 SCC 84; and Mohd. Yunus Khan v. State

of U.P. & Ors., (2010) 10 SCC 539).

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

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 have thought that bias was

likely and whether the adjudicator was likely to be disposed to decide

the matter only in a particular way. Public policy requires that there

should be no doubt about the purity of the adjudication

process/administration of justice. The Court has to proceed observing

the minimal requirements of natural justice, i.e., the Judge has to act

fairly and without bias and in good faith. A judgment which is the

result of bias or want of impartiality, is a nullity and the trial "coram

non judice". Therefore, the consequential order, if any, is liable to be

quashed. (Vide: Vassiliades v. Vassiliades, AIR 1945 PC 38; S.

1

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) 4

SCC 388, this Court observed that public confidence in the judiciary is

said to be the basic criterion of judging the justice delivery system. If

any act or action, even if it is a passive one, erodes or is even likely to

erode the ethics of judiciary, the matter needs a further look. In the

event, there is any affectation of such an administration of justice either

by way of infraction of natural justice or an order being passed wholly

without jurisdiction or affectation of public confidence as regards the

doctrine of integrity in the justice delivery system, technicality ought

not to outweigh the course of justice -- the same being the true effect

of the doctrine of ex debito justitiae. It is enough if there is a ground of

an appearance of bias.

While deciding the said case, this Court placed reliance upon

the judgment of the House of Lords in Ex Parte Pinochet Ugarte

(No.2) 1999 All ER, 577, in which the House of Lords on 25.11.1998,

restored warrant of arrest of Senator Pinochet who was the Head of the

State of Chile and was to stand trial in Spain for some alleged offences.

It came to be known later that one of the Law Lords (Lord Hoffmann),

1

who heard the case, had links with Amnesty International (AI) which

had become a party to the case. This was not disclosed by him at the

time of the hearing of the case by the House. Pinochet Ugarte, on

coming to know of that fact, sought reconsideration of the said

judgment of the House of Lords on the ground of appearance of bias

and not actual bias. On the principle of disqualification of a Judge to

hear a matter on the ground of appearance of bias, it was pointed out:

"An appeal to the House of Lords will only be

reopened where a party though no fault of its own,

has been subjected to an unfair procedure. A

decision of the House of Lords will not be varied or

rescinded merely because it is subsequently thought

to be wrong."

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 that in

applying the real danger or possibility of bias test, it is often appropriate

to inquire whether the Judge knew of the matter in question. To that

end, a reviewing court may receive a written statement from the Judge.

A Judge must recuse himself from a case before any objection is made

or if the circumstances give rise to automatic disqualification or he feels

personally embarrassed in hearing the case. If, in any other case, the

2

Judge becomes aware of any matter which can arguably be said to give

rise to a real danger of bias, it is generally desirable that disclosure

should be made to the parties in advance of the hearing. Where

objection is then made, it will be as wrong for the Judge to yield to a

tenuous or frivolous objection as it will be to ignore an objection of

substance. However, if there is real ground for doubt, that doubt must

be resolved in favour of recusal. Where, following appropriate

disclosure by the Judge, a party raises no objection to the Judge hearing

or continuing to hear a case, that party cannot subsequently complain

that the matter disclosed gives rise to a real danger of bias.

19. In Justice P.D. Dinakaran v. Hon'ble Judges Inquiry

Committee, (2011) 8 SCC 380, this Court has held that in India the

courts have held that, to disqualify a person as a Judge, the test of real

likelihood of bias, i.e., real danger is to be applied, considering whether

a fair minded and informed person, apprised of all the facts, would have

a serious apprehension of bias. In other words, the courts give effect to

the maxim that `justice must not only be done but be seen to be done',

by examining not actual bias but real possibility of bias based on facts

and materials.

The Court further held:

2 "The first requirement of natural justice is that the

Judge should be impartial and neutral and must be

free from bias. He is supposed to be indifferent to

the parties to the controversy. He cannot act as

Judge of a cause in which he himself has some

interest either pecuniary or otherwise as it affords

the strongest proof against neutrality. He must be in

a position to act judicially and to decide the matter

objectively. A Judge must be of sterner stuff.

His mental equipoise must always remain

firm and undetected. He should not allow his

personal prejudice to go into the decision-

making. The object is not merely that the scales be

held even; it is also that they may not appear to be

inclined. If the Judge is subject to bias in favour of

or against either party to the dispute or is in a

position that a bias can be assumed, he is

disqualified to act as a Judge, and the proceedings

will be vitiated. This rule applies to the

judicial and administrative authorities required

to act judicially or quasi-judicially."

20. Thus, it is evident that the allegations of judicial bias are required

to be scrutinised taking into consideration the factual matrix of

the case in hand. The court must bear in mind that a mere ground

of appearance of bias and not actual bias is enough to vitiate the

judgment/order. Actual proof of prejudice in such a case may

make the case of the party concerned stronger, but such a proof is

not required. In fact, what is relevant is the reasonableness of the

apprehension in that regard in the mind of the party. However,

once such an apprehension exists, the trial/judgment/order etc.

2

stands vitiated for want of impartiality. Such judgment/order is a

nullity and the trial "coram non-judice".

II. DOCTRINE OF WAIVER:

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, had not been taken by the party

even though the party knew about the circumstances giving rise to the

allegations about the alleged bias and was aware of its right to

challenge the presence of such official. The Court further observed that

waiver cannot always and in every case be inferred merely from the

failure of the party to take the objection. "Waiver can be inferred only

if and after it is shown that the party knew about the relevant facts and

was aware of his right to take the objection in question."

Thus, in a given case if a party knows the material facts and is

conscious of his legal rights in that matter, but fails to take the plea of

bias at the earlier stage of the proceedings, it creates an effective bar of

waiver against him. In such facts and circumstances, it would be clear

that the party wanted to take a chance to secure a favourable order from

the official/court and when he found that he was confronted with an

2

unfavourable order, he adopted the device of raising the issue of bias.

The issue of bias must be raised by the party at the earliest.

(See: M/s. Pannalal Binjraj & Ors. v. Union of India & Ors., AIR

1957 SC 397; and Justice P.D. Dinakaran (Supra))

22. In M/s. Power Control Appliances & Ors. v. Sumeet

Machines Pvt. Ltd., (1994) 2 SCC 448 this Court held as under:-

"Acquiescence is sitting by, when another is invading

the rights.... It is a course of conduct inconsistent

with the claim... It implies positive acts; not merely

silence or inaction such as involved in laches. ........

The acquiescence must be such as to lead to the

inference of a licence sufficient to create a new right

in the defendant......"

Inaction in every case does not lead to an inference of implied

consent or acquiescence as has been held by this Court in P. John

Chandy & Co. (P) Ltd. v. John P. Thomas, AIR 2002 SC 2057.

Thus, the Court has to examine the facts and circumstances in an

individual case.

23. 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, a party could have

enjoyed. In fact, it is an agreement not to assert a right. There can be no

2

waiver unless the person who is said to have waived, is fully informed

as to his rights and with full knowledge about the same, he intentionally

abandons them. (Vide: Dawsons Bank Ltd. v. Nippon Menkwa

Kabushihi Kaish, AIR 1935 PC 79; Basheshar Nath v.

Commissioner of Income-tax, Delhi and Rajasthan & Anr., AIR

1959 SC 149; Mademsetty Satyanarayana v. G. Yelloji Rao & Ors.,

AIR 1965 SC 1405; Associated Hotels of India Ltd. v. S. B. Sardar

Ranjit Singh, AIR 1968 SC 933; Jaswantsingh Mathurasingh &

Anr. v. Ahmedabad Municipal Corporation & Ors., (1992) Suppl 1

SCC 5; M/s. Sikkim Subba Associates v. State of Sikkim, AIR 2001

SC 2062; and Krishna Bahadur v. M/s. Purna Theatre & Ors., AIR

2004 SC 4282).

24. This Court in Municipal Corporation of Greater Bombay v.

Dr. Hakimwadi Tenants' Association & Ors., AIR 1988 SC 233

considered the issue of waiver/acquiescence by the non-parties to the

proceedings and held:

"In order to constitute waiver, there must be

voluntary and intentional relinquishment of a right.

The essence of a waiver is an estoppel and where

there is no estoppel, there is no waiver. Estoppel

and waiver are questions of conduct and must

2

necessarily be determined on the facts of each

case.......

There is no question of estoppel, waiver or

abandonment. There is no specific plea of waiver,

acquiescence or estoppel, much less a plea of

abandonment of right. That apart, the question of

waiver really does not arise in the case. Admittedly,

the tenants were not parties to the earlier

proceedings. There is, therefore, no question of

waiver of rights, by Respondents 4-7 nor would this

disentitle the tenants from maintaining the writ

petition."

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 of it and knows its

right to raise the issue at the earliest, otherwise it would be deemed to

have been waived. However, it is to be kept in mind that acquiescence,

being a principle of equity must be made applicable where a party

knowing all the facts of bias etc., surrenders to the authority of the

Court/Tribunal without raising any objection. 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 apprehending the

bias/prejudice is a party to the case. The question of waiver would not

2

arise against a person who is not a party to the case as such person has

no opportunity to raise the issue of bias.

III. BAR TO REVIEW/ALTER- 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 passed, it cannot be

reviewed. Section 362 Cr.P.C. is based on an acknowledged principle

of law that once a matter is finally disposed of by a Court, the said

Court in the absence of a specific statutory provision becomes functus

officio and is disentitled to entertain a fresh prayer for any relief unless

the former order of final disposal is set aside by a Court of competent

jurisdiction in a manner prescribed by law. The Court becomes functus

officio the moment the order for disposing of a case is signed. Such an

order cannot be altered except to the extent of correcting a clerical or

arithmetical error. There is also no provision for modification of the

judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa &

Ors., AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC

3051).

2 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 alter/review the same. (See: Moti Lal v. State of M.P.,

AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v.

M.M. Manikantan Nair, AIR 2001 SC 2145).

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 by abuse of the process of

court which would really amount to its being without jurisdiction,

inherent powers can be exercised to recall such order for the reason that

in such an eventuality the order becomes a nullity and the provisions of

Section 362 Cr.P.C. would not operate. In such eventuality, the

judgment is manifestly contrary to the audi alteram partem rule of

natural justice. The power of recall is different from the power of

altering/reviewing the judgment. However, the party seeking

recall/alteration has to establish that it was not at fault. (Vide:

Chitawan & Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak

Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J.

2

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; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2

SCC 703; and Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC

1232).

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 the Code itself. (Vide: State Represented by

D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., AIR 2009 SC

46).

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. against the

Court altering or reviewing its judgment, is subject to what is

"otherwise provided by this Code or by any other law for the time being

in force". Those words, however, refer to those provisions only where

the Court has been expressly authorised by the Code or other law to

2

alter or review its judgment. The inherent power of the Court is not

contemplated by the saving provision contained in Section 362 Cr.P.C.

and, therefore, the attempt to invoke that power can be of no avail.

30. Thus, the law on the issue can be summarised to the effect that

the criminal justice delivery system does not clothe the court to add or

delete any words, except to correct the clerical or arithmetical error as

specifically been provided under the statute itself after pronouncement

of the judgment as the Judge becomes functus officio. Any mistake or

glaring omission is left to be corrected only by the appropriate forum in

accordance with law.

IV. INHERENT POWERS UNDER SECTION 482 Cr.P.C.

31. 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 exercised to do something which is

expressly barred under the Cr.P.C. If any consideration of the facts by

way of review is not permissible under the Cr.P.C. and is expressly

barred, it is not for the Court to exercise its inherent power to

reconsider the matter and record a conflicting decision. If there had

been change in the circumstances of the case, it would be in order for

3

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 circumstances and the decision has to be arrived at on the

facts that existed as on the date of the earlier order, the exercise of the

power to reconsider the same materials to arrive at different conclusion

is in effect a review, which is expressly barred under Section 362

Cr.P.C. (See: Simrikhia v. Dolley Mukherjee and Chhabi

Mukherjee & Anr, (1990) 2 SCC 437).

32. The inherent power of the court under Section 482 Cr.P.C. is

saved only where an order has been passed by the criminal court which

is required to be set aside to secure the ends of justice or where the

proceeding pending before a court, amounts to abuse of the process of

court. Therefore, such powers can be exercised by the High Court in

relation to a matter pending before a criminal court or where a power is

exercised by the court under the Cr.P.C. Inherent powers cannot be

exercised assuming that the statute conferred an unfettered and arbitrary

jurisdiction, nor can the High Court act at its whim or caprice. The

statutory power has to be exercised sparingly with circumspection and

in the rarest of rare cases. (Vide: Kurukshetra University & Anr. v.

3 State of Haryana & Anr., AIR 1977 SC 2229; and State of W.B. &

Ors. v. Sujit 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 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 "ends of

justice" and "abuse of the process of the court" have to be dealt with in

accordance with law including the procedural law and not otherwise.

Such powers can be exercised ex debito justitiae to do real and

substantial justice as the courts have been conferred such inherent

jurisdiction, in absence of any express provision, as inherent in their

constitution, or such powers as are necessary to do the right and to undo

a wrong in course of administration of justice as provided in the legal

maxim "quando lex aliquid alique, concedit, conceditur et id sine quo

res ipsa esse non potest". However, the High Court has not been given

nor does it possess any inherent power to make any order, which in the

3

opinion of the court, could be in the interest of justice as the statutory

provision is not intended to by-pass the procedure prescribed. (Vide:

Lalit Mohan Mondal & Ors. v. Benoyendra Nath Chatterjee, AIR

1982 SC 785; Rameshchandra Nandlal Parikh v. State of Gujarat &

Anr., AIR 2006 SC 915; Central Bureau of Investigation v. Ravi

Shankar Srivastava, IAS & Anr., AIR 2006 SC 2872; Inder Mohan

Goswami & Anr. v. State of Uttaranchal & Ors., AIR 2008 SC 251;

and Pankaj Kumar v. State of Maharashtra & Ors., AIR 2008 SC

3077).

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 the power of

investigation has been exercised by an Investigating Officer malafide or

the matter is not investigated at all. Even in such a case, the High Court

cannot direct the police as to how the investigation is to be conducted

but can insist only for the observance of process as provided for in the

Cr.P.C. Another remedy available to such an aggrieved person may be

to file a complaint under Section 200 Cr.P.C. and the court concerned

will proceed as provided in Chapter XV of the Cr.P.C. (See:

Gangadhar Janardan Mhatre v. State of Maharashtra & Ors.,

3

(2004) 7 SCC 768; and Divine Retreat Centre v. State of Kerala &

Ors., AIR 2008 SC 1614).

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 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).

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(IIA) of 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 :

3 "The High Court cannot issue directions to

investigate the case from a particular angle or by a

particular agency." (Emphasis added)

Thus, in case, the High Court in exercise of its inherent powers,

issues directions contravening the statutory provisions laying down the

procedure of investigation, it would be unwarranted in law.

38. In Rajan Kumar Machananda v. State of Karnataka, 1990

(supp.) SCC 132, this Court examined a case as to whether the bar

under Section 397(3) Cr.P.C. can be circumvented by invoking inherent

jurisdiction under Section 482 Cr.P.C. by the High Court. The Court

came to the conclusion that if such a course was permissible it would be

possible that every application facing the bar of Section 397(3) Cr.P.C.

would be labelled as one under Section 482 Cr.P.C. Thus, the statutory

bar cannot be 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 and the lights

are not always luminous. Nor, again, are judicial methods always

adequate to secure justice". But the courts "are bound by the Penal

Code and Criminal Procedure Code" by the very `oath' of the office.

3 (See: Joseph Peter v. State of Goa, Daman and Diu, AIR 1977 SC

1812).

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 under which the party can seek

redressal of its grievance. Under the garb of exercising inherent powers,

the Criminal Court cannot review its judgment. Such powers are

analogous to the provisions of Section 151 CPC and can be exercised

only to do real and substantial justice. The rule of inherent powers has

its source in the maxim "Quadolex aliquid alicui concedit, concedere

videtur id sine quo ipsa, ess uon potest" which means that when the law

gives anything to anyone, it gives also all those things without which

the thing itself could not exist. The order cannot be passed by-passing

the procedure prescribed by law. The court in exercise of its power

under Section 482 Cr.P.C. cannot direct a particular agency to

investigate the matter or to investigate a case from a particular angle or

by a procedure not prescribed in Cr.P.C. Such powers should be

exercised very sparingly to prevent abuse of process of any court.

3 Courts must be careful to see that its decision in exercise of this power

is based on sound principles.

To inhere means that it forms a necessary part and belongs as

an attribute in the nature of things. The High Court under Section 482

Cr.P.C. is crowned with a statutory power to exercise control over the

administration of justice in criminal proceedings within its territorial

jurisdiction. This is to ensure that proceedings undertaken under the

Cr.P.C. are executed to secure the ends of justice. For this, the

Legislature has empowered the High Court with an inherent authority

which is repository under the Statute. The Legislature therefore clearly

intended the existence of such power in the High Court to control

proceedings initiated under the Cr.P.C. Conferment of such inherent

power might be necessary to prevent the miscarriage of justice and to

prevent any form of injustice. However, it is to be understood that it is

neither divine nor limitless. It is not to generate unnecessary

indulgence. The power is to protect the system of justice from being

polluted during the administration of justice under the Code. The High

Court can intervene where it finds the abuse of the process of any court

which means, that wherever an attempt to secure something by abusing

the process is located, the same can be rectified by invoking such

3

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.

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 for quashing

criminal proceedings in appropriate cases. Such an application does not

lie to initiate criminal proceedings or set the criminal law in motion.

Inherent jurisdiction can be exercised if the order of the Subordinate

Court results in the abuse of the "process" of the court and/or calls for

interference to secure the ends of justice. The use of word `process'

implies that the proceedings are pending before the Subordinate Court.

When reference is made to the phrase "to secure the ends of justice", it

is in fact in relation to the order passed by the Subordinate Court and it

cannot be understood in a general connotation of the phrase. More so,

while entertaining such application the proceedings should be pending

in the Subordinate Court. In case it attained finality, the inherent powers

cannot be exercised. Party aggrieved may approach the

appellate/revisional forum. Inherent jurisdiction can be exercised if

injustice done to a party, e.g., a clear mandatory provision of law is

3

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 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. Here, the High Court enjoys wide powers of prerogative

writs as compared to that under Section 482 Cr.P.C. To secure the

corpus of an individual, remedy by way of habeas corpus is available.

For that the High Court should not resort to inherent powers under

Section 482 Cr.P.C. as the Legislature has conferred separate powers

for the same. Needless to mention that Section 97 Cr.P.C. empowers

Magistrates to order the search of a person wrongfully 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.

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

3

was never the wisdom of the Legislature. To confer un-briddled

inherent power would itself be trenching upon the authority of the

Legislature.

V. JURISDICTION OF THE BENCH :

41. The court is "not to yield to spasmodic sentiments to vague and

unregulated benevolence". The court "is to exercise discretion informed

by tradition, methodized by analogy, disciplined by system". This

Court in State of Rajasthan v. Prakash Chand & Ors., AIR 1998 SC

1344 observed as under:

"Judicial authoritarianism is what the proceedings

in the instant case smack of. It cannot be permitted

under any guise. Judges must be circumspect and

self-disciplined in the discharge of their judicial

functions......It needs no emphasis to say that all

actions of a Judge must be judicious in character.

Erosion of credibility of the judiciary, in the public

mind, for whatever reasons, is the greatest threat to

the independence of the judiciary. Eternal vigilance

by the Judges to guard against any such latent

internal danger is, therefore, necessary, lest we

"suffer from self-inflicted mortal wounds". We must

remember that the Constitution does not give

unlimited powers to anyone including the Judge of

all levels. The societal perception of Judges as

being detached and impartial referees is the

greatest strength of the judiciary and every member

of the judiciary must ensure that this perception

does not receive a setback consciously or

4

unconsciously. Authenticity of the judicial process

rests on public confidence and public confidence

rests on legitimacy of judicial process. Sources of

legitimacy are in the impersonal application by the

Judge of recognised objective principles which owe

their existence to a system as distinguished from

subjective moods, predilections, emotions and

prejudices. It is most unfortunate that the order

under appeal founders on this touchstone and is

wholly unsustainable".

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. Narayan Shamrao Puranik, AIR

1982 SC 1198; Inder Mani v. Matheshwari Prasad, (1996) 6 SCC

587; Prakash Chand (Supra); R. Rathinam v. State, (2002) 2 SCC

391; and Jasbir Singh v. State of Punjab, (2006) 8 SCC 294, and

came to the conclusion that the Chief Justice is the master of roster. The

Chief Justice has full power, authority and jurisdiction in the matter of

allocation of business of the High Court which flows not only from the

provisions contained in sub-section (3) of Section 51 of the States

Reorganisation Act, 1956, but inheres in him in the very nature of

things. The Chief Justice enjoys a special status and he alone can assign

work to a Judge sitting alone and to the Judges sitting in Division

Bench or Full Bench. He has jurisdiction to decide which case will be

heard by which Bench. The Court held that a Judge or a Bench of

4

Judges can assume jurisdiction in a case pending in the High Court only

if the case is allotted to him or them by the Chief Justice. Strict

adherence of this procedure is essential for maintaining judicial

discipline and proper functioning of the Court. No departure from this

procedure is permissible.

In Prakash Chand (Supra), this Court dealt with a case

wherein the Chief Justice of Rajasthan High Court had withdrawn a

part-heard matter from one Bench and directed it to be listed before

another Bench. However, the earlier Bench still made certain

observations. While dealing with the issue, this Court held that it was

the exclusive prerogative of the Chief Justice to withdraw even a part-

heard matter from one Bench and to assign it to any other Bench.

Therefore, the observations made by the Bench subsequent to

withdrawal of the case from that Bench and disposal of the same by

another Bench were not only unjustified and unwarranted but also

without jurisdiction and made the Judge coram 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.

4 It has rightly been pointed out by the Full Bench of Allahabad

High Court in Sanjay Kumar Srivastava v. Acting Chief Justice,

1996 AWC 644, that if the Judges were free to choose their jurisdiction

or any choice was given to them to do whatever case they would like to

hear and decide, the machinery of the court could have collapsed and

judicial functioning of the court could have ceased by generation of

internal strife on account of hankering for a particular jurisdiction or a

particular case.

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 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:

44. In Secretary, Minor Irrigation and Rural Engineering

Services, U.P. & Ors. v. Sahngoo Ram Arya & Anr., AIR 2002 SC

4

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 investigate, the court must

reach a conclusion on the basis of pleadings and material on record that

a prima facie case is made out against the accused. The court cannot

direct CBI to investigate as to whether a person committed an offence

as alleged or not. The court cannot merely proceed on the basis of `ifs'

and `buts' and think it appropriate that inquiry should be made by the

CBI.

45. In Divine Retreat Centre (Supra), this Court held that the High

Court could have passed a judicial order directing investigation against

a person and his activities only after giving him an opportunity of being

heard. It is not permissible for the court to set the criminal law in

motion on the basis of allegations made against a person in violation of

principles of natural justice. A person against whom an inquiry is

directed must have a reasonable opportunity of being heard as he is

likely to be adversely affected by such order and, particularly, when

such an order results in drastic consequence of affecting his reputation.

4 46. In D. Venkatasubramaniam & Ors. v. M.K.Mohan

Krishnamachari & Anr., (2009) 10 SCC 488, this Court held that an

order passed behind the back of a party is a nullity and liable to be set

aside only on this score. Therefore, a person against whom an order is

passed on the basis of a criminal petition filed against him, he should be

impleaded as a respondent being a necessary party.

47. This Court in Disha v. State of Gujarat & Ors., AIR 2011 SC

3168, after considering the various judgments of this Court,

particularly, in Vineet Narain & Ors. v. Union of India & Anr., AIR

1996 SC 3386; Union of India v. Sushil Kumar Modi, (1998) 8 SCC

661; Rajiv Ranjan Singh `Lalan' (VIII) v. Union of India, (2006) 6

SCC 613; Rubabbuddin Sheikh v. State of Gujarat & Ors., AIR

2010 SC 3175; and Ashok Kumar Todi v. Kishwar Jahan & Ors.,

(2011) 3 SCC 758; held that the court can transfer the matter to the

CBI or any other special agency only when it is satisfied that the

accused is a very powerful and influential person or the State

Authorities like high police officials are involved in the offence and the

investigation has not been proceeded with in proper direction or the

investigation had been conducted in a biased manner. In such a case, in

4

order to do complete justice and having belief that it would lend

credibility to the final outcome of the investigation, such directions may

be issued.

48. Thus, in view of the above, it is evident that a constitutional

court can direct the CBI to investigate into the case provided the court

after examining the allegations in the complaint reaches a conclusion

that the complainant could make out prima facie, a case against the

accused. However, the person against whom the investigation is

sought, is to be impleaded as a party and must be given a reasonable

opportunity of being heard. CBI cannot be directed to have a roving

inquiry as to whether a person was involved in the alleged unlawful

activities. The court can direct CBI investigation only in exceptional

circumstances where the court is of the view that the accusation is

against a person who by virtue of his post could influence the

investigation and it may prejudice the cause of the complainant, and it

is necessary so to do in order to do complete justice and make the

investigation credible.

INSTANT CASES :

49. The present appeals are required to be decided in the light of

the aforesaid settled legal propositions.

4 50. It is evident from the judgment and order dated 11.5.2007 that

Criminal Misc. No.152-MA of 2007 stood dismissed. The order sheet

dated 30.5.2007 reveals that in spite of the disposal of the said criminal

appeal it had been marked therein as "put up for further hearing" and

the order dated 30.5.2007 reveals the directions given to the Trial Court

to furnish a detailed report as to the measures taken by it to bring the

proclaimed offenders, namely Navneet Singh, Manjit Singh,

Manmohan Singh, Gurjant Singh and Balwant Singh before the Court

and the case was adjourned for 2nd July, 2007.

51. Two different orders are available on the record of this case. The

aforesaid marking "put up for further hearing" had been shown in the

order sheet dated 11.5.2007, i.e., the date of disposal of criminal appeal

against acquittal. While in another copy, it is not in the order sheet

dated 11.5.2007 but on the order sheet dated 30.5.2007. In view of this

confusion, this Court vide order dated 17.3.2011 has called for the

original record. It appears from the original record that no such order

had been passed on 11.5.2007. More so, there is nothing on record to

show as under what circumstances the file was put up before the Court

4

on 30.5.2007 as no order had ever been passed by the court in this

regard.

The proceedings dated 10.7.2007, 25.7.2007, 31.7.2007, 6.8.2007

and 9.8.2007 show that the case has been adjourned for short dates. The

order dated 5.9.2007 shows that the Bench headed by Mr. Justice X

was furnished with full information regarding proclaimed offenders by

the authorities. However, the case was adjourned for 19.9.2007. The

order dated 19.9.2007 reveals that the Bench not only entertained the

application filed by Darshan Singh Multani, IAS (Retd.), but also

expressed its anguish that nothing could be done since the year 1993 by

the Chandigarh Police to procure the presence of the proclaimed

offenders. The Police by filing the replies had adopted the delaying

tactics only to derail the process of the court without bringing the

proclaimed offenders to justice. The application filed by the U.T.,

Chandigarh to file a reply to the application filed by Darshan Singh

Multani was rejected. The CBI was further directed to investigate the

case properly, as no worthwhile steps were being taken by the

Chandigarh Police.

4 The order dated 5.10.2007 passed by the Bench shows that the

CBI had been impleaded as respondent in the petition suo motu by the

court. The CBI submitted its reply to the Crl.Misc. Application No.

86287 of 2007 opposing the said application and further submitted that

the matter be not entrusted to the CBI and petition be dismissed being

devoid of any merit.

The order dated 6.11.2007 reveals that the Court enlarged the

scope of investigation by the CBI by including investigations qua

Balwant Singh Bhullar and Manjit Singh.

Relevant part of the order dated 4.7.2008 reads as under:

"After going through the status report, it

comes out that the encounter of Navneet Singh son

of late Tirath Singh of Qadian was a genuine

encounter with the Rajasthan police. We feel that

there is no need to further investigate the matter in

the case of Navneet Singh son of late Tirath Singh.

In the case of Manjit Singh son of late Rattan Singh,

no evidence is coming forth and the CBI is at liberty

to drop the investigation of Manjit Singh son of late

Rattan Singh, if it so desires."

Thus, it is clear that the Bench was aware of the fact that two

proclaimed offenders had been killed in encounters. Thus, the CBI

was given liberty not to further investigate the matter in case of

Navneet Singh and Manjit Singh, if it so desired.

4 52. The record reveals that Davinder Pal Singh Bhullar was

involved in M.S. Bitta's assassination attempt and had absconded to

Germany on a fake passport. He was arrested there and was extradited

to India and arrested on 18.1.1995. He was tried for the said offence,

convicted in the year 2001 and given the death sentence. It was

confirmed by the High Court as well as by this Court and the review

petition also stood rejected in January 2003. Ever since 2003, he

remained silent regarding the investigation of the alleged

disappearances of his father and uncle and suddenly woke up in the

year 2007 when the Bench presided by Mr. Justice X started suo motu

hearing various other matters after the disposal of the criminal appeal

against acquittal. The Court was fully aware that another relative of

Bhullar i.e. his father's sister had filed a case before the High Court in

the year 1997, for production of Balwant Singh Bhullar, the father of

Davinder Pal Singh Bhullar above and not for his uncle Manjit Singh.

The High Court had rejected the said petition vide order dated

15.7.1997 and the matter was not agitated further. Thus, it attained

finality.

5 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 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 the proclaimed offenders and a

detailed report as to the measures taken to procure the presence of the

said proclaimed offenders, namely, Navneet Singh, Manjit Singh,

Manmohan Singh, Gurjant Singh and Balwant Singh so that they may

face trial. However, after hearing the matter on few dates, the Court

vide order dated 5.10.2007 closed the chapter of proclaimed offenders

observing as under:

"Since the police of U.T. Chandigarh has now

woken up, that the proclaimed offenders have to be

brought to justice and are making efforts to procure

their presence, we feel that there is no need for the

Special Investigation Team (S.I.T.) The Inspector

General of Police, Union Territory, Chandigarh had

been directed by this Court vide order dated

5.9.2007 to set up a Special Investigation Team

(S.I.T.) for this purpose. At this stage, now, there is

no need for this Special Investigation Team. The

Inspector General of Police, UT, Chandigarh is

5

directed to disband the Special Investigation Team

and proceed as per law in the normal course to

procure the presence of the proclaimed offenders,

who are allegedly in foreign countries." (Emphasis

added)

Therefore, it is evident that the court was very much anxious to

know about the proclaimed offenders, however, after getting certain

information, the Court stopped monitoring the progress in procuring the

presence of any of those proclaimed offenders. By this time, the Court

also came to know that applicant Darshan Singh Multani's son had also

been killed. Therefore, the chapter regarding the proclaimed offenders

was closed. There was no occasion for the Court to proceed further with

the matter and entertain the applications under Section 482 Cr.P.C.,

filed by Darshan Singh Multani and Davinder Pal Singh Bhullar. At

this stage, the Court started probing regarding missing persons. The

question does arise as to whether applications under Section 482

Cr.P.C. could be entertained in a disposed of appeal or could be heard

by a Bench to which the roster has not been assigned by Hon'ble the

Chief Justice.

In view of the law referred to hereinabove, the Bench was not

competent to entertain the said applications and even if the same had

been filed in the disposed of appeal, the court could have directed to

5

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 order dated

11.5.2007, there appears an order in the file: "put up for further

hearing". That means the matter is to be heard by the same Bench

consisting of Judges `X' and `A'. However, the matter was listed

before another Bench on 2.7.2007 and the said Bench directed to list the

matter before DB-IV after taking the appropriate order from the Chief

Justice. In absence of the Chief Justice, the senior most Judge passed

the order on 5.7.2007 to list the matter before the DB-IV. The matter

remained with the Presiding Judge, though the other Judge changed

most of the time, as is evident from the subsequent order sheets. Order

sheet dated 30.5.2007 reveals that it was directed to put up the case for

further hearing. Thus, it should have been heard by the Bench as it was

on 30.5.2007.

56. In the counter affidavit filed by Davinder Pal Singh Bhullar,

respondent no.1 before this Court, it has been stated as under:

"W,X, Y&Z That in reply to these grounds, it is

submitted that the answering respondent being

5

behind the bars awaiting his death sentence moved

an application through his counsel in the Hon'ble

High Court, when he came to know from the news

item published in the news paper regarding marking

of CBI enquiry in the case of abduction of Balwant

Singh Multani an Engineer, son of Mr. Darshan

Singh Multani a retired IAS Officer, who was then a

serving officer. When the answering respondent

found that Mr. Sumedh Singh Saini has now been

taken to task by the Hon'ble Division Bench of

Punjab and Haryana High Court, the answering

respondent also moved the Hon'ble High Court for

seeking enquiry regarding the abduction and

murder of his father and his maternal uncle who

were abducted by the lawless police officials

headed by Mr. Sumedh Singh Saini the then SSP

of Chandigarh and the Hon'ble Bench extended

the scope of the enquiry vide order dated

6.11.2007. So the delay is not worthy to be taken

note of as the past record of the Mr. Sumedh Singh

Saini which has been mentioned in preliminary

submissions clearly shows that he was able to

threaten and overawe an Hon'ble Punjab and

Haryana High Court Judge in year 1995 and even

though he has been charged by a court for

abduction for murder of three individuals in year

1995, but the trial of the case is still pending in the

year 2008. So throughout this period the manner

in which Mr. Sumedh Singh Saini has been able to

subvert judicial processes did not allow the

respondent to move a court of law and now when

an Hon'ble Division Bench has shown courage to

uphold the majesty of law, that the respondent also

gathered his courage to move the Hon'ble High

Court, with the hope that at some time justice would

prevail."

(Emphasis added)

5

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 2006. Thus, information in

respect of one of the proclaimed offenders was with the court. The

judgment of the Trial Court was before the High Court under challenge.

Thus, the High Court could have taken note of the proclaimed offender

and there was no new material that came before the High Court on the

basis of which proceedings could be revived. The chargesheet in the

Trial Court itself revealed that two persons had died. It appears that the

State counsel also failed to bring these facts to the notice of the court.

58. The impugned order dated 5.10.2007 though gives an

impression that the High Court was trying to procure the presence of

the proclaimed offenders but, in fact, it was to target the police officers,

who had conducted the inquiry against Mr. Justice X. The order reads

that particular persons were eliminated in a false encounter by the

police and it was to be ascertained as to who were the police officers

responsible for it, so that they could be brought to justice.

5 59. There could be no justification for the Bench concerned to

entertain applications filed under Section 482 Cr.P.C. as miscellaneous

applications in a disposed of appeal. The law requires that the Bench

could have passed an appropriate order to place those applications

before the Bench hearing 482 Cr.P.C. petitions or place the matters

before the Chief Justice for appropriate orders.

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 therefore, there could be no question of

raising any protest on their behalf for passing such orders even after

disposal of the application for leave to appeal as such orders were rather

in their favour. The appellants became aggrieved only and only when

the High Court entertained the applications filed under Section 482

Cr.P.C. for tracing out the whereabouts of certain persons allegedly

missing for the past 20 years. Such orders did not have any connection

with the incident in respect of which the application for leave to appeal

had been entertained and rejected. An application for leave to appeal

that has been dismissed against an order of acquittal cannot provide a

5

platform for an investigation in a subject matter that is alien and not

directly concerned with the subject matter of appeal.

Mr. K.N. Balgopal, learned Senior counsel appearing for the

respondents has submitted that the issue of bias must be agitated by a

party concerned at the earliest and it is not permissible to raise it at such

a belated stage. The legal proposition in this regard is clear that if a

person has an opportunity to raise objections and fails to do so, it would

amount to waiver on his part. However, such person can raise

objections only if he is impleaded as a party-respondent in the case and

has an opportunity to raise an objection on the ground of bias. In the

instant case, neither the State of Punjab nor Mr. S.S. Saini have been

impleaded as respondents. Thus, the question of waiver on the ground

of bias by either of them does not arise.

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 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

5

of the same subject matter could be entertained after 10 years of

dismissal of the said writ petition.

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 Constitution by the High Court. However, it is

not possible to re-approach the High Court for the same relief by filing

a fresh writ petition for the reason that it would be difficult for the High

Court to set aside the order made by another Bench of the same court.

In case, a petition by issuing Writ of Habeas Corpus is dismissed by the

High Court and Special Leave Petition against the same is also

dismissed, a petition under Article 32 of the Constitution, seeking the

same relief would not be maintainable.

(See: Ghulam Sarwar v. Union of India & Ors., AIR 1967 SC 1335;

Nazul Ali Molla, etc. v. State of West Bengal, 1969 (3) SCC 698;

Niranjan Singh v. State of Madhya Pradesh, AIR 1972 SC 2215;

Har Swarup v. The General Manager, Central Railway & Ors.,

AIR 1975 SC 202; T.P. Moideen Koya v. Government of Kerala &

5

Ors., AIR 2004 SC 4733; and K. 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 petition or the events

have arisen subsequent to making of the first application. The Court

must bear in mind that doctrine of res judicata is confined generally to

civil action but inapplicable to illegal action and fundamentally lawless

order. A subsequent petition of habeas corpus on fresh grounds which

were not taken in the earlier petition for the same relief may be

permissible. (Vide: Lalubhai Jogibhai Patel v. Union of India &

Ors., AIR 1981 SC 728; Ajit Kumar Kaviraj v. Distt. Magistrate,

Birbhum & Anr., AIR 1974 SC 1917; and Sunil Dutt v. Union of

India & Ors., AIR 1982 SC 53).

64. While dealing with a similar issue, this Court in Srikant v.

District Magistrate, Bijapur & Ors., (2007) 1 SCC 486 observed as

under:

"Whether any new ground has been taken, has to be

decided by the court dealing with the application

and no hard-and-fast rule can be laid down in that

regard. But one thing is clear, it is the substance

and not the form which is relevant. If some surgical

changes are made with the context, substance and

5

essence remaining the same, it cannot be said that

challenge is on new or fresh grounds".

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 raised in subsequent

writ petition could not be known to the writ petitioner while filing the

earlier writ petition.

Be that as it may, the parties concerned had not filed fresh writ

petitions, rather chosen, for reasons best known to them applications

under Section 482 Cr.P.C., which could not have been entertained.

66. A large number of documents have been submitted to the court

under sealed cover by the State of Punjab on the direction of this court.

We have gone through the said documents and suffice is to mention

here that Shri Sumedh Singh Saini, IPS had conducted the enquiry in

2002 against Mr. Justice X on the direction of the Chief Justice of the

Punjab and Haryana High Court on the alleged appointment of certain

judicial/executive officers in Punjab through Shri Ravi Sandhu,

Chairman of the Public Service Commission. Shri S.S. Saini had filed

reports against Mr. Justice X. The Chief Justice of Punjab and Haryana

High Court confronted Mr. Justice X with the said reports. On the basis

6

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 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

procedure, not known in law, while issuing certain directions. The

court not only entertained the applications filed by Shri Davinder Pal

Singh Bhullar and Darshan Singh Multani in a disposed of appeal but

enlarged the scope of CBI investigation from proclaimed offenders to

other missing persons. The court directed the CBI to treat affidavits

handed over by the applicant Shri Bhullar who admittedly had inimical

relation with Shri S.S. Saini, as statement of eye-witnesses. The court

further directed the CBI to change the names of witnesses to witness

(A), (B) or (C) and record their statements under Section 164 Cr.P.C. so

that they could not resile at a later stage. We fail to understand how the

court could direct the CBI to adopt such an unwarranted course.

68. The High Court accepted certain documents submitted by Shri

R.S. Bains, advocate, as is evident from the order dated 22.8.2007 and

6

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 particular Division

Bench, Mr. Justice X alone held the proceedings, and accepted the

status report of the CBI sitting singly, as the proceedings reveal that the

other Judge was not holding court on that day. The order sheet dated

2.4.2008 reads as under:

"Status report, which has been presented by the CBI in

Court in a sealed cover, is taken in custody.

Hon'ble Mr. Justice Harbans Lal, who has to hear the

case along with me, as it is a part-heard case, is not

holding court today.

To come up on 4.4.2008.

Sd/-

Judge"

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

6

which in turn is based on the affidavits 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 362 Cr.P.C. coupled

with the principles of constructive res judicata; and the Bench had not

been assigned the roster to entertain petitions under Section 482 Cr.P.C.

The entire judicial process appears to have been drowned to achieve a

motivated result which we are unable to approve of.

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 maxim "sublato fundamento

cadit opus" meaning thereby that foundation being removed,

structure/work falls, comes into play and applies on all scores in the

present case.

73. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000 SC

3243; and State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr.,

(2001) 10 SCC 191, this Court observed that once the basis of a

6

proceeding is gone, all consequential acts, actions, orders would fall to

the ground automatically and this principle is applicable to judicial,

quasi-judicial and administrative proceedings equally.

74. Similarly in Mangal Prasad Tamoli (dead) by Lrs. v.

Narvadeshwar Mishra (dead) by Lrs. & Ors., (2005) 3 SCC 422, this

Court held that if an order at the initial stage is bad in law, then all

further proceedings, consequent thereto, will be non est and have to be

necessarily set aside.

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.

(See also: Upen Chandra Gogoi v. State of Assam & Ors., (1998) 3

SCC 381; Satchidananda Misra v. State of Orissa & Ors., (2004) 8

SCC 599; Regional Manager, SBI v. Rakesh Kumar Tewari, (2006)

1 SCC 530; and Ritesh Tewari & Anr. v. State of U.P. & Ors., AIR

2010 SC 3823).

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 be declared non est.

6

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 this Court, these matters also have

to be dismissed at the threshold without entering into merit, is not worth

acceptance.

The issue as to whether the dismissal of the special leave

petition by this Court in limine, i.e., by a non-speaking order would

amount to affirmation or confirmation or approval of the order

impugned before this Court, has been considered time and again. Thus,

the issue is no more res integra.

A large number of judicial pronouncements made by this Court

leave no manner of doubt that the dismissal of the Special Leave

Petition in limine does not mean that the reasoning of the judgment of

the High Court against which the Special Leave Petition had been filed

before this Court stands affirmed or the judgment and order impugned

merges with such order of this Court on dismissal of the petition. It

simply means that this Court did not consider the case worth examining

for a reason, which may be other than merit of the case. An order

rejecting the Special Leave Petition at the threshold without detailed

6

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 parties. No inference can be

drawn that by necessary implication, the contentions raised in the

special leave petition on the merits of the case have been rejected. So it

has no precedential value.

(See: The Workmen of Cochin Port Trust v. The Board of Trustees

of the Cochin Port Trust & Anr., AIR 1978 SC 1283; Ahmedabad

Manufacturing & Calico Printing Co. Ltd. v. The Workmen &

Anr., AIR 1981 SC 960; Indian Oil Corporation Ltd. v. State of

Bihar & Ors., AIR 1986 SC 1780; Yogendra Narayan Chowdhury

& Ors. v. Union of India & Ors., AIR 1996 SC 751; Union of India

& Anr. v. Sher Singh & Ors., AIR 1997 SC 1796; M/s Sun Export

Corporation, Bombay v. Collector of Customs, Bombay & Anr.,

AIR 1997 SC 2658; Kunhayammed & Ors. v. State of Kerala &

Anr., AIR 2000 SC 2587; Saurashtra Oil Mills Association, Gujarat

v. State of Gujarat & Anr., AIR 2002 SC 1130; Union of India &

Ors. v. Jaipal Singh, AIR 2004 SC 1005; and Delhi Development

Authority v. Bhola Nath Sharma (dead) by L.Rs. & Ors., AIR 2011

SC 428).

CONCLUSIONS :

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 justice. The path charted by

the High Court inevitably reflects a biased approach. It was a

6

misplaced sympathy for a cause that can be termed as being

inconsistent to the legal framework. Law is an endless process of

testing and retesting as said by Justice Cardozo in his conclusion of the

Judicial Process, ending in a constant rejection of the dross and

retention of whatever is pure and sound. The multi-dimensional

defective legal process adopted by the court below cannot be justified

on any rational legal principle. The High Court was swayed away by

considerations that are legally impermissible and 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.

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.

...........................J.

(Dr. B.S. CHAUHAN)

...........................J.

(A.K. PATNAIK)

New Delhi,

December 7, 2011

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