TaxTMI 
TaxTMI 
2011 (12) TMI 656
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.... 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. 152MA 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 ....
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....ed with explosives operated with a remote control, because of which, two police personnel died on the spot and many others were grievously injured. Three of the accused, namely, Davinder Pal Singh Bhullar alias Master, Partap Singh Maan and Gursharan Kaur Maan were subjected to trial. The other co-accused namely, Navneet Singh, Manjit Singh, Manmohan Jit Singh, Gurjant Singh and Balwant Singh were not traceable. They were declared proclaimed offenders. (B) On conclusion of the trial, the Court vide judgment and order dated 1.12.2006 acquitted the three accused giving them benefit of doubt. (C) Aggrieved, the State (U.T., Chandigarh) preferred Criminal Miscellaneous No.152-MA of 2007 before the High Court challenging the said acquittal. However, the appeal was dismissed vide judgment and order dated 11.5.2007. (D) After 20 days of the disposal of the said Crl. Misc. No.152-MA of 2007, i.e., appeal against acquittal, the High Court again took up the case suo motu on 30.5.2007 and directed the authorities to furnish full details of the proclaimed offenders in respect of the FIR No.334/91 dated 29.8.1991 and the Bench marked the matter "Part Heard". ....
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....tion 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 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 Sh....
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.... 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, proceedings subsequent to 11.5.2007 are a nullity for want of competence/jurisdiction. More so, ....
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.... 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 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 mad....
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....s 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 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 guar....
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.... test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether the adjudicator was likely to be disposed to decide the matter only in a particular way. Public policy requires that there should be no doubt about the purity of the adjudication process/administration of justice. The Court has to proceed observing the minimal requirements of natural justice, i.e., the Judge has to act fairly and without bias and in good faith. A judgment which is the result of bias or want of impartiality, is a nullity and the trial "coram non judice". Therefore, the consequential order, if any, is liable to be quashed. (Vide: Vassiliades v. Vassiliades, AIR 1945 PC 38; S. Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701; and Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386). 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 ....
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....able 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: "The first re....
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.... shown that the party knew about the relevant facts and was aware of his right to take the objection in question." Thus, in a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear that the party wanted to take a chance to secure a favourable order from the official/court and when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest. (See: M/s. Pannalal Binjraj & Ors. v. Union of India & Ors., AIR 1957 SC 397; and Justice P.D. Dinakaran (Supra)) 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 in....
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....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 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 prin....
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....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 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 arithmeti....
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....c 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 opinion of the court, could be ....
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.... 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. ....
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....e 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 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 pass....
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....Judges must be circumspect and self-disciplined in the discharge of their judicial functions......It needs no emphasis to say that all actions of a Judge must be judicious in character. Erosion of credibility of the judiciary, in the public mind, for whatever reasons, is the greatest threat to the independence of the judiciary. Eternal vigilance by the Judges to guard against any such latent internal danger is, therefore, necessary, lest we "suffer from self-inflicted mortal wounds". We must remember that the Constitution does not give unlimited powers to anyone including the Judge of all levels. The societal perception of Judges as being detached and impartial referees is the greatest strength of the judiciary and every member of the judiciary must ensure that this perception does not receive a setback consciously or unconsciously. Authenticity of the judicial process rests on public confidence and public confidence rests on legitimacy of judicial process. Sources of legitimacy are in the impersonal application by the Judge of recognised objective principles which owe their existence to a system as distinguished from subjective moods, predilections, emotions and prejudices. It is ....
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....mar 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 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 inves....
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.... 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. 50. It is evident from the judgment and order dated 11.5.2007 thatCriminal Misc. No.152-MA of 2007 stood dismissed. The orde....
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.... 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. 52. The record reveals that....
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....ion Team (S.I.T.) for this purpose. At this stage, now, there is no need for this Special Investigation Team. The Inspector General of Police, UT, Chandigarh is directed to disband the Special Investigation Team and proceed as per law in the normal course to procure the presence of the proclaimed offenders, who are allegedly in foreign countries." (Emphasis added) Therefore, it is evident that the court was very much anxious to know about the proclaimed offenders, however, after getting certain information, the Court stopped monitoring the progress in procuring the presence of any of those proclaimed offenders. By this time, the Court also came to know that applicant Darshan Singh Multani's son had also been killed. Therefore, the chapter regarding the proclaimed offenders was closed. There was no occasion for the Court to proceed further with the matter and entertain the applications under Section 482 Cr.P.C., filed by Darshan Singh Multani and Davinder Pal Singh Bhullar. At this stage, the Court started probing regarding missing persons. The question does arise as to whether applications under Section 482 Cr.P.C. could be entertained in a disposed of appeal or could b....
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....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) 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 of....
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.... 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 of....
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....ance 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". 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....
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....llary 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 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, com....
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....r 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 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....