Page 1

1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO.46 OF 2008

ASHIQ HUSSAIN FAKTOO          ...PETITIONER

VERSUS

UNION OF INDIA & ORS.                                  ...RESPONDENTS

JUDGMENT

RANJAN GOGOI, J.

1. The writ petitioner has been convicted by this Court by

its  judgment  and  order  dated  30th January,  2003    passed  in

Criminal Appeal No.889 of 2001 under Section 3 of the Terrorist

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

to as “TADA Act”) and under Section 302 read with Section 120B of

the Indian Penal Code, 1860 (hereinafter referred to as “IPC”).  He

has been sentenced,  inter alia,  to undergo imprisonment for  life.

The  review  petitions  filed  by  the  writ  petitioner  as  also  by  the

co-accused (Mohd. Shafi  Khan @ Mussadiq Hussain)  against the

aforesaid judgment dated 30th January, 2003  i.e. Review Petition

(Criminal) No.478 of 2003 and Review Petition (Criminal) No.1377

Page 2

2

of 2003 have been dismissed by order dated 2nd September, 2003 of

this Court.  Curative Petition filed by the co-accused (Mohd. Shafi

Khan @ Mussadiq Hussain) i.e. Curative Petition (Criminal) No.23 of

2004 in  Review Petition  (Criminal)  No.1377 of  2003 in  Criminal

Appeal No.889 of 2001 has also been dismissed by order dated 2nd

February, 2005 of this Court. Thereafter, this writ petition under

Article 32 of the Constitution of India has been filed by the present

accused writ petitioner making the following prayers:

(a) Issue a writ in the nature of habeas corpus or other  similar  direction,  order  or  writ  to  the Respondents  thereby  commanding  them  to produce  the  petitioner  before  this  Hon'ble Court  and  thereafter  forthwith  release  him from illegal custody; and  

(b) grant  any  other  or  further  reliefs  as  this Hon'ble Court may deem fit and proper in the facts and circumstances of the case and in the interests of justice.”

2. Notwithstanding the prayers  made,  extracted above,  in

essence,  the  writ  petition  seeks  interference  with  the  order  of

conviction and the sentence imposed on the petitioner by this Court

by  its  judgment  and  order  dated  30th January,  2003  passed  in

Criminal Appeal No.889 of 2001.

Page 3

3

3. The  Bench  initially  hearing  the  present  writ  petition  had

passed an order dated 24th September, 2014 to the following effect:

“We have been apprised by Mr. Jethmalani as the writ petition was filed, no application for review was filed.  We are of  the considered opinion if  the present writ petition is converted to a review petition and heard in the open Court on the fundamental principles of review as well as the maxim ex debito justitiae,  the  cause  of  justice  would be  subserved and accordingly we direct the Registry to convert the present  writ  petition  to  a  review petition  and  list before  the  appropriate  Bench  in  open  Court   as expeditiously as possible.

Ordered accordingly”

Subsequently  the  matter  has  been referred to  a larger

Bench.  This is how we are in seizen of the matter.  

4. As  already  noted  review  petitions  were  filed  by  the

present writ petitioner as also by the co-accused (Mohd. Shafi Khan

@ Mussadiq Hussain) and the same were dismissed by this Court

by order dated 2nd September, 2003 the said fact was not brought

to the notice of the Court while the order dated 24.09.2013 was

rendered.

5. Shri Ram Jethmalani, learned Senior Counsel appearing

for the writ petitioner has urged that the sole basis of the conviction

Page 4

4

of the writ petitioner is the alleged confession made by him.  Shri

Jethmalani  has  urged that  the  same is  not  a  confession in law

inasmuch as nowhere in the said statement the accused implicates

himself  with  the  alleged  offence(s)  in  any  manner.   Neither  the

confession  has  been  put  to  the  accused  in  the  course  of  his

examination under  the provisions of  Section 313 of  the Code of

Criminal  Procedure,  1973,  nor  there is  any corroboration to  the

alleged confession.  Shri Jethmalani has further urged that Section

15 of the TADA Act makes a confession made to a Police Officer, not

lower in rank than a Superintendent of Police, admissible in the

trial of such person. Section 15 of the TADA Act, therefore, works

as an exception to Section 25 of the Indian Evidence Act,  1872.

However, in the instant case, the confession was recorded while the

accused  was  in  police  custody  and,  therefore,  would  not  be

admissible under Section 26 of the Indian Evidence Act, 1872. The

provisions of Section 15 of the TADA Act are not in exception to

what has been laid down in Section 26 of the Indian Evidence Act,

1872.  It is also urged that the confession recorded is contrary to

the  provisions  of  Rule  15  of  the  TADA  Rules  read  with  the

guidelines laid down by this Court in para 263 of the judgment in

Page 5

5

Kartar    Singh Vs. State of Punjab  1. On the aforesaid grounds, Shri

Jethmalani  has submitted that  a manifest  miscarriage of  justice

has been occasioned by the conviction of the accused writ petitioner

and the sentence imposed upon him which needs to be corrected on

the principle of ex debito justitiae.  Shri Jethmalani has also pointed

out  the  decision  of  this   Court  in   Mohd.  Arif  alias  Ashfaq Vs.

Registrar, Supreme Court of India and others2 to contend that review

petitions in matters of convictions recorded under the TADA Act are

required to be heard in open Court.   

6. Shri R.S. Suri, learned Senior Counsel appearing for the

Union of India has questioned the maintainability of  the present

writ petition on the ratio of the law laid down by this Court in Rupa

Ashok Hurra Vs. Ashok Hurra and another3. Drawing the attention

of the Court to the relevant paragraphs of the report in Rupa Ashok

Hurra (supra) Shri Suri has urged that neither a writ petition under

Article 32 of the Constitution of India nor a second review petition

would  be  maintainable.  It  is  also  submitted  that  invoking  the

principles  of  ex debito  justitiae,  this  Court in  Rupa Ashok Hurra

(supra) had carved out an exception permitting the Court to have a

1      (1994) 3 SCC 569 2 (2014) 9 SCC 737 3 (2002) 4 SCC 388

Page 6

6

re-look  at  its  concluded  judgments  on  twin  grounds  i.e.  (1)  the

order being in infraction of the principles of natural justice; and (2)

or an order which shakes the integrity of the justice delivery system

by  an  association  of  the  judge  with  the  subject  matter  or  the

litigating  parties  which  may  have  escaped  the  attention  of  the

learned Judge.

7. On merits, Shri Suri has submitted that what has been

urged by Shri Jethmalani is not at all legally tenable and all the

issues  raised  have  been  duly  considered  by  this  Court  in  its

judgment  dated  30th January,  2003  passed  in  Criminal  Appeal

No.889 of 2001.  Shri Suri has further submitted that principle of

open court hearing laid down by the Constitution Bench in Mohd.

Arif  alias Ashfaq (supra)  is  only in cases of  death penalty  cases

either under the IPC or the TADA Act.  The reference to TADA cases

in paragraph 40 of the report in  Mohd. Arif alias Ashfaq (supra) has

to be understood accordingly.

8. Having heard the learned counsels for the parties we are

of the view that on the strength of the Constitution Bench judgment

in Rupa Ashok Hurra (supra) the present writ petition would not be

maintainable.    It  would  also  not  be  maintainable  as  a  review

Page 7

7

petition  inasmuch  as  Review Petition  (Criminal)  No.478  of  2003

filed by the writ petitioner has been dismissed by this Court on 2nd

September, 2003.  Open Court hearing of review petitions in terms

of the judgment of this Court in Mohd. Arif alias Ashfaq (supra) is

available as of right only in death sentence cases.

9. The principle of  ex debito justitiae  invoked on behalf of

the accused  writ petitioner to attract the jurisdiction of this Court

under Article 32 of the Constitution of India to set the accused writ

petitioner at liberty, in our considered view, has been elaborately

dealt with in the concurring judgment of  Umesh C. Banerjee, J. in

Rupa Ashok Hurra (supra) and holding that the doctrine of ex debito

justitiae would prevail over procedural law but would be applicable

only in a situation where the order of this Court had been passed

without  notice  or  where  the  order  has  the  effect  of  eroding  the

public confidence in the justice delivery system.  Paragraph 69 of

the  report  in  Rupa  Ashok  Hurra (supra)  containing  the  view  of

Umesh C. Banerjee, J. may be usefully extracted herein below:

“69. True,  due  regard  shall  have  to  be had  as  regards  opinion  of  the  Court  in  Ranga Swamy  [(1990)  1  SCC  288]  but  the  situation presently centres around that in the event of there being any manifest injustice would the doctrine of

Page 8

8

ex debito justitiae be said to be having a role to play in  sheer  passivity  or  to  rise  above  the  ordinary heights as it preaches that justice is above all. The second alternative seems to be in consonance with time  and  the  present  phase  of  socio-economic conditions  of  the  society.  Manifest  injustice  is curable  in  nature  rather  than  incurable  and  this Court would lose its sanctity and thus would belie the expectations of the founding fathers that justice is  above  all.  There  is  no  manner  of  doubt  that procedural law/procedural justice cannot overreach the  concept  of  justice  and  in  the  event  an  order stands out to create manifest injustice,  would the same be allowed to remain in silentio so as to affect the  parties  perpetually  or  the  concept  of  justice ought  to  activate  the  Court  to  find  a  way  out  to resolve the erroneous approach to the problem? Mr Attorney-General,  with  all  the  emphasis  in  his command, though principally agreed that justice of the situation needs to be looked into and relief be granted  if  so  required  but  in  the  same  breath submitted that the Court ought to be careful enough to tread on the path, otherwise the same will open up a Pandora’s box and thus, if at all, in rarest of the rare cases, further scrutiny may be made. While it  is  true  that  law  courts  have  overburdened themselves with the litigation and delay in disposal of matters in the subcontinent is not unknown and in the event of any further appraisal of the matter by  this  Court,  it  would  brook  no  further  delay resulting in consequences which are not far to see but that would by itself not in my view deter this Court  from further  appraisal  of  the matter  in the event  the  same,  however,  deserves  such  an additional appraisal — the note of caution sounded by Mr. Attorney-General as regards opening up of a Pandora’s  box,  strictly  speaking,  however,  though may  be  very  practical  in  nature  but  the  same apparently  does  not  seem  to  go  well  with  the concept  of  justice  as  adumbrated  in  our

Page 9

9

Constitution.  True  it  is,  that  practicability  of  the situation  needs  a  serious  consideration  more  so when this Court could do without it for more than 50 years, which by no stretch of imagination can be said to be a period not so short. I feel it necessary, however,  to  add  that  it  is  not  that  we  are  not concerned  with  the  consequences  of  reopening  of the issue but the redeeming feature of our justice delivery system, as is  prevalent in the country,  is adherence to proper and effective administration of justice  in  stricto.  In  the  event  there  is  any 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.  The  oft-quoted statement  of  law  of  Lord  Hewart,  C.J.  in  R. v. Sussex Justices,  ex  p  McCarthy [(1924)  1  KB 256] that  it  is  of  fundamental  importance  that  justice should  not  only  be  done,  should  manifestly  and undoubtedly be seen to be done, had this doctrine underlined  and  administered  therein.  In  this context, the decision of the House of Lords in R. v. Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet  Ugarte  (No.  2)[(1999)  1  All  ER  577(HL)] seems  to  be  an  epoch-making  decision,  wherein public confidence in the judiciary is said to be the basic criterion of the justice delivery system — any act or action even if it is a passive one, if erodes or is  even likely  to erode the  ethics of  judiciary,  the matter needs a further look.”

10. The principle of ex debito justitiae  is founded on a recognition

of  a  debt  that  the  justice  delivery  system owes  to  a  litigant  to

Page 10

10

correct an error in a judicial dispensation.  Its application, by the

very  nature  of  things,  cannot  be  made  to  depend  on  varying

perceptions  of  legal  omissions  and  commissions  but  such

recognition of  the debt  which have the potential  of  opening new

vistas of  exercise of  jurisdiction to relook concluded cases, must

rest on surer foundations which have been discerned and expressed

in Rupa Ashok Hurra (supra).  Frantic cries of injustice founded on

perceived erroneous application of law or appreciation of facts will

certainly not be enough to extend the frontiers of this jurisdiction.  

11.   The opinion of Syed Shah Mohammed Quadri, J. with regard

to the situations in which an aggrieved litigant would be entitled to

relief under the doctrine of  ex debito justitiae  has been set out in

paragraph 51 of the report which may be reproduced herein below:

“Nevertheless,  we  think  that  a  petitioner  is entitled to relief  ex debito justitiae  if he establishes (1)  violation of  the principles  of  natural  justice  in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to  the  list,  he  was  not  served  with  notice  of  the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned judge  failed  to  disclose  his  connection  with  the subject-matter  or  the  parties  giving  scope  for  an apprehension  of  bias  and  the  judgment  adversely affects the petitioner.” (para 51)

Page 11

11

12. The said jurisdiction because of its very nature has attracted

the terminology of curative jurisdiction.  The procedural steps with

regard to filing and disposal of applications invoking the curative

jurisdiction, termed as curative petitions, have also been laid down

in paragraphs 52 and 53 of the report of Syed Shah Mohammed

Quadri, J. in Rupa Ashok Hurra (supra) which now finds mention in

Order XLVIII  of the Supreme Court Rules, 2013.   

13. The present writ petition under Article 32 of the Constitution

of  India  by  no  stretch  of  reasoning  would  fit  into  any  of  the

permissible  categories  of  post  conviction exercises permissible  in

law as laid down by this Court.  The doctrine of ex debito justitiae

being circumscribed by the judgment of this Court in Rupa Ashok

Hurra (supra) it is for the petitioner to exhaust the said remedy, if is

he  so  inclined  and  so  advised.   Merely  because  in  the

comprehension of the writ petitioner the judgment of this Court is

erroneous  would  not  enable  the  Court  to  reopen  the  issue  in

departure to the established and settled norms and parameters of

the  extent  of  permissible  exercise  of  jurisdiction  as  well  as  the

Page 12

12

procedural law governing such exercise.  We, therefore, hold that

the  present  writ  petition  is  not  maintainable  and  is  accordingly

dismissed subject to the observations as above.

……….....................,J. (RANJAN GOGOI)

……….....................,J. (PRAFULLA C. PANT)

……….....................,J. (A.M. KHANWILKAR)

NEW DELHI AUGUST 30, 2016.