REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 753-755 of 2009

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  

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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.  

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(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,  

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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  

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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.

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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,  

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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.  

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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  

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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   

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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  

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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.  

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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.  

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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  

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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.  

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(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.  

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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  

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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  

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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  

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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   

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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  

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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.   

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 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.   

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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  

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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.  

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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  

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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.  

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     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.

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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.  

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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  

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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   

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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)   

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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.

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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  

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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  

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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 &  

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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   

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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  

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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  

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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  

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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  

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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.

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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  

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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  

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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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