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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.

REPORTABLE

The Indian Constitution preamble

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IN THE SUPREME COURT O

F 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

5
attempt was made on the life of Shri M.S. Bitta, the then President, All
India Youth Congress, in which several persons were killed and Shri
Bitta’s legs were amputated. It was also mentioned therein that
Balwant Singh Multani escaped from police custody and his
whereabouts were not known. One proclaimed offender, Navneet
Singh had been killed in a police encounter in Rajasthan on 26.2.1995.
(F) After considering the said affidavit filed by Shri Dinesh Bhatt,
SSP, the High Court vide order dated 22.8.2007 directed the
Chandigarh Administration to constitute a Special Investigation Team
to enquire into all aspects of the proclaimed offenders and submit a
status report. The High Court also issued notice to the Central Bureau
of Investigation (hereinafter called the `CBI’).
(G) It was during the pendency of these proceedings that Shri
Darshan Singh Multani, father of Balwant Singh Multani, whose
habeas corpus writ petition had already been dismissed by the High
Court in the year 1991, approached the Court by filing a miscellaneous
application on 16.9.2007, for issuance of directions to find out the
whereabout of his son Balwant Singh Multani.
(H) In response to the show cause notice dated 22.8.2007, the CBI
submitted its reply on 3.10.2007 requesting the High Court not to

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handover the enquiry to the CBI, as it was already overburdened with
the investigation of cases referred to it by various courts; suffered from
a shortage of manpower and resources; and the case did not have any
inter-state ramifications.
(I) The High Court vide order dated 19.9.2007 took note of the fact
that Manmohan Jit Singh, an employee of IBM, was reported by the US
Department of Justice, Federal Bureau of Investigation, to be one of the
proclaimed offenders. In view thereof, an affidavit was filed by
Chandigarh Administration dated 5.10.2007 submitting that the
proclaimed offender Manmohan Jit Singh had left for abroad.
(J) However, the High Court vide order dated 5.10.2007, directed
the CBI to investigate the allegations of Darshan Singh Multani
regarding his missing son and further directed the CBI not to disclose
the identity of any of the witnesses to anyone except the High Court and
to code the names of witnesses as witness A, B & C and further to
submit periodical status reports. The order further reads:-
“However, Shri Sumedh Singh Saini, Director,

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

11.2.1991 was posted as Senior Supdt. of Police

was at helm of affairs of Chandigarh Police and

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

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

position to influence the investigating officer if it is

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handed over to the Punjab Police or even for that

matter to the Chandigarh Police.”
(K) In the same matter, the Bench entertained another Criminal
Miscellaneous Application on 30.10.2007 filed by Davinder Pal Singh
Bhullar, (a convict in another case and lodged in Tihar Jail) regarding
allegations that his father Shri Balwant Singh Bhullar and maternal
uncle Shri Manjit Singh had been abducted in the year 1991. The High
Court vide order dated 6.11.2007 directed the CBI to investigate the
allegations made in the complaint filed by Davinder Pal Singh Bhullar
and further to get his statement recorded under Section 164 Cr.P.C., so
that the witness may not resile under duress or be won over by any kind
of inducement. An order was passed rejecting the submission made on
behalf of the CBI that the alleged kidnapping of Shri Balwant Singh
Bhullar and Shri Manjit Singh had no connection with the said case
arising out of FIR No.334 dated 29.8.1991.
(L) The CBI after making a preliminary investigation/enquiry on
the application, registered an FIR on 2.7.2008 under Sections 120-B,
364, 343, 330, 167 and 193 IPC against Shri S.S. Saini, the then SSP,
UT, Chandigarh, Shri Baldev Singh Saini, the then DSP, UT,
Chandigarh, Shri Harsahay Sharma, the then SI, P.S. Central,

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Chandigarh, Shri Jagir Singh, the then SI, P.S. Central, Chandigarh and
other unknown police officials of UT Police, Chandigarh, and P.S.
Qadian. The CBI further submitted a status report on 4.7.2008 and after
considering the same, the High Court issued further directions to
complete the investigation within the stipulated period and submit a
further report.
5. The State of Punjab, being aggrieved, approached this Court
submitting that it has to espouse the cause of its officers who fought
war against terrorism, putting themselves at risk during the troublesome
period in the early 1990s. That Shri S.S. Saini, SSP, has been one of
the most decorated officers of the State having outstanding entries in
his Service Book. He is an honest and hardworking officer and has
taken drastic steps to curb terrorism in the State in early 1990s. The
terrorists had planned a diabolical act and an attempt was made on his
life, wherein his three bodyguards were killed and three others were
seriously injured. The officer himself suffered grievous injuries. The
terrorists had also even chased him up to England when he went there
for a social visit. They had planned to attack the said officer. They were
arrested by the police and put to trial and also stood convicted. A
sentence of four years had been imposed. These appeals have been
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filed on various grounds, including: the judicial bias of the Judge
presiding over the Bench by making specific allegations that the officer
named in the order i.e. Shri S.S. Saini had conducted an enquiry
against the Presiding Judge (hereinafter called “Mr. Justice X”) on the
direction of the Chief Justice of Punjab & Haryana High Court and,
thus, the said Judge ought not to have proceeded with the matter, rather
should have recused himself from the case. More so, as the judgment in
appeal against acquittal had been passed by the Court on 11.5.2007
upholding the judgment of acquittal, the Court has become functus
officio and it had no competence to reopen the case vide order dated
30.5.2007.
6. This Court vide order dated 11.7.2008 stayed the investigation until
further orders.
7. Shri Ram Jethmalani, Shri Ravi Shankar Prasad and Shri Ranjit
Kumar, learned senior counsel appearing for the appellants, have
submitted that once the judgment in appeal against acquittal has been
rendered by the High Court on 11.5.2007, in view of the complete
embargo of the provisions of Section 362 Cr.P.C., the Court having
become functus officio was not competent to reopen the case and, thus,

1
proceedings subsequent to 11.5.2007 are a nullity for want of
competence/jurisdiction. More so, the proceedings that continued after
the said judgment, by illegally reopening the case, were a result of
judicial bias of Mr. Justice X, which was just to take revenge against
Shri S.S. Saini, who had conducted an inquiry against Mr. Justice X and
thus, all such proceedings are liable to be quashed. None of the parties
had ever named Mr. S.S. Saini in connection with any of the cases. It
was Mr. Justice X, who, on his personal knowledge, mentioned his
name in court order dated 5.10.2007. Such a course is not permissible
in law. More so, so far as Balwant Singh Multani’s case is concerned,
his father Darshan Singh Multani (at the relevant time an officer of
Indian Administrative Service) had approached the High Court for the
same relief and the case stood dismissed in the year 1991 and he had
not taken up the matter any further. Thus, the proceedings attained
finality. Application of Mr. Multani could not have been entertained
after the expiry of 16 years. The same position existed in respect of the
application filed by Davinder Pal Singh Bhullar (who had been
convicted and awarded a death sentence in another case and the same
stood confirmed by this Court) in respect of abduction of his father
Balwant Singh Bhullar and uncle Manjit Singh in the year 1991 without

1
furnishing any explanation for delay of 16 years. More so, Mrs. Jagir
Kaur, sister of Balwant Singh Bhullar, had filed Crl. W.P. No. 1062 of
1997 for production of Balwant Singh Bhullar, which stood dismissed
vide order dated 15.7.1997 only on the ground of delay. A second writ
petition for habeas corpus is not maintainable and is barred by the
principles of res judicata. The CBI submitted that investigation of the
said alleged abduction be not tagged with that of the involvement of the
officer and disappearance of Balwant Singh Multani, as both the
incidents were separate and independent and had no connection with
each other. The High Court after taking note of the said submissions in
its order dated 6.11.2007 illegally clubbed both the said applications.
The applications filed by Davinder Pal Singh Bhullar and Darshan
Singh Multani could not be filed/entertained in the disposed of criminal
appeal. Had the said applications been filed independently, the same
could be rejected as being filed at a much belated stage. Even
otherwise, the said applications could have gone to a different Bench.
Thus, by entertaining those applications in a disposed of criminal
appeal, the Bench presided over by Mr. Justice X violated the roster
fixed by the Chief Justice. Thus, the proceedings are liable to be
quashed.

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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,

1
such fact could not be brought to the notice of the High Court by the
public prosecutor. The State of Punjab filed an application for
intervention but did not raise any issue of bias or prejudice against the
Presiding Judge of the Bench. The Union Territory of Chandigarh has
approached this Court against the same impugned judgment and order
and special leave petition has been dismissed in limine. More so, after
conducting a preliminary enquiry, the CBI has registered a First
Information Report (hereinafter called the “FIR”) on 2.7.2008 which
should not be quashed. The CBI be permitted to investigate the cases.
Thus, the appeals are liable to be dismissed.
9. We have considered the rival submissions made by learned
counsel for the parties and perused the record.
LEGAL ISSUES :
I. JUDICIAL BIAS
10. There may be a case where allegations may be made against a
Judge of having bias/prejudice at any stage of the proceedings or after
the proceedings are over. There may be some substance in it or it may
be made for ulterior purpose or in a pending case to avoid the Bench if
a party apprehends that judgment may be delivered against him.

1
Suspicion or bias disables an official from acting as an adjudicator.
Further, if such allegation is made without any substance, it would be
disastrous to the system as a whole, for the reason, that it casts doubt
upon a Judge who has no personal interest in the outcome of the
controversy.
11. In respect of judicial bias, the statement made by Frank J. of the
United States is worth quoting:-
“If, however, `bias’ and `partiality’ be defined to

mean the total absence of preconceptions in the

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

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

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

with predispositions ……. Much harm is done by the

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

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

himself of all predilections, becomes a passionless

thinking machine.”

[In re: Linahan, 138 F. 2nd 650 (1943)]
(See also: State of West Bengal & Ors. v. Shivananda Pathak &
Ors., AIR 1998 SC 2050).
12. To recall the words of Mr. Justice Frankfurter in Public Utilities
Commission of the District of Columbia v. Franklin S. Pollak, 343
US 451 (1952) 466: The Judicial process demands that a judge moves
within the framework of relevant legal rules and the covenanted modes

1
of thought for ascertaining them. He must think dispassionately and
submerge private feeling on every aspect of a case. There is a good deal
of shallow talk that the judicial robe does not change the man within it.
It does. The fact is that, on the whole, judges do lay aside private views
in discharging their judicial functions. This is achieved through
training, professional habits, self-discipline and that fortunate alchemy
by which men are loyal to the obligation with which they are entrusted.

13. In Bhajan Lal, Chief Minister, Haryana v. M/s. Jindal
Strips Ltd. & Ors., (1994) 6 SCC 19, this Court observed that there
may be some consternation and apprehension in the mind of a party and
undoubtedly, he has a right to have fair trial, as guaranteed by the
Constitution. The apprehension of bias must be reasonable, i.e. which a
reasonable person can entertain. Even in that case, he has no right to ask
for a change of Bench, for the reason that such an apprehension may be
inadequate and he cannot be permitted to have the Bench of his choice.
The Court held as under:-
“Bias is the second limb of natural justice.

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

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

named as a party. The decision-maker should have

no interest by way of gain or detriment in the

outcome of a proceeding. Interest may take many

forms. It may be direct, it may be indirect, it may
1
arise from a personal relationship or from a

relationship with the subject-matter, from a close

relationship or from a tenuous one.”
14. The principle in these cases is derived from the legal maxim –
nemo debet esse judex in causa propria sua. It applies only when the
interest attributed is such as to render the case his own cause. This
principle is required to be observed by all judicial and quasi-judicial
authorities as non-observance thereof, is treated as a violation of the
principles of natural justice. (Vide: Rameshwar Bhartia v. The State
of Assam, AIR 1952 SC 405; Mineral Development Ltd. v. The State
of Bihar & Anr., AIR 1960 SC 468; Meenglas Tea Estate v. The
Workmen, AIR 1963 SC 1719; and The Secretary to the
Government, Transport Department, Madras v. Munuswamy
Mudaliar & Ors., AIR 1988 SC 2232).
The failure to adhere to this principle creates an apprehension
of bias on the part of the Judge. The question is not whether the Judge
is actually biased or, in fact, has really not decided the matter
impartially, but whether the circumstances are such as to create a
reasonable apprehension in the mind of others that there is a likelihood
of bias affecting the decision. (Vide: A.U. Kureshi v. High Court of

1
Gujarat & Anr., (2009) 11 SCC 84; and Mohd. Yunus Khan v. State
of U.P. & Ors., (2010) 10 SCC 539).
15. In Manak Lal, Advocate v. Dr. Prem Chand Singhvi & Ors.,
AIR 1957 SC 425, this Court while dealing with the issue of bias held
as under:
“Actual proof of prejudice in such cases may make the

appellant’s case stronger but such proof is not

necessary…. What is relevant is the reasonableness of

the apprehension in that regard in the mind of the

appellant.”
16. The test of real likelihood of bias is whether a reasonable person,
in possession of relevant information, would have thought that bias was
likely and whether the adjudicator was likely to be disposed to decide
the matter only in a particular way. Public policy requires that there
should be no doubt about the purity of the adjudication
process/administration of justice. The Court has to proceed observing
the minimal requirements of natural justice, i.e., the Judge has to act
fairly and without bias and in good faith. A judgment which is the
result of bias or want of impartiality, is a nullity and the trial “coram
non judice”. Therefore, the consequential order, if any, is liable to be
quashed. (Vide: Vassiliades v. Vassiliades, AIR 1945 PC 38; S.

1
Parthasarathi v. State of Andhra Pradesh, AIR 1973 SC 2701; and
Ranjit Thakur v. Union of India & Ors., AIR 1987 SC 2386).
17. In Rupa Ashok Hurra v. Ashok Hurra & Anr., (2002) 4
SCC 388, this Court observed that public confidence in the judiciary is
said to be the basic criterion of judging the justice delivery system. If
any act or action, even if it is a passive one, erodes or is even likely to
erode the ethics of judiciary, the matter needs a further look. In the
event, there is any affectation of such an administration of justice either
by way of infraction of natural justice or an order being passed wholly
without jurisdiction or affectation of public confidence as regards the
doctrine of integrity in the justice delivery system, technicality ought
not to outweigh the course of justice — the same being the true effect
of the doctrine of ex debito justitiae. It is enough if there is a ground of
an appearance of bias.
While deciding the said case, this Court placed reliance upon
the judgment of the House of Lords in Ex Parte Pinochet Ugarte
(No.2) 1999 All ER, 577, in which the House of Lords on 25.11.1998,
restored warrant of arrest of Senator Pinochet who was the Head of the
State of Chile and was to stand trial in Spain for some alleged offences.
It came to be known later that one of the Law Lords (Lord Hoffmann),
1
who heard the case, had links with Amnesty International (AI) which
had become a party to the case. This was not disclosed by him at the
time of the hearing of the case by the House. Pinochet Ugarte, on
coming to know of that fact, sought reconsideration of the said
judgment of the House of Lords on the ground of appearance of bias
and not actual bias. On the principle of disqualification of a Judge to
hear a matter on the ground of appearance of bias, it was pointed out:

“An appeal to the House of Lords will only be

reopened where a party though no fault of its own,

has been subjected to an unfair procedure. A

decision of the House of Lords will not be varied or

rescinded merely because it is subsequently thought

to be wrong.”
18. In Locabail (UK) Ltd. v. Bayfield Properties Ltd. & Anr.,
(2000) 1 All ER 65, the House of Lords considered the issue of
disqualification of a Judge on the ground of bias and held that in
applying the real danger or possibility of bias test, it is often appropriate
to inquire whether the Judge knew of the matter in question. To that
end, a reviewing court may receive a written statement from the Judge.
A Judge must recuse himself from a case before any objection is made
or if the circumstances give rise to automatic disqualification or he feels
personally embarrassed in hearing the case. If, in any other case, the

2
Judge becomes aware of any matter which can arguably be said to give
rise to a real danger of bias, it is generally desirable that disclosure
should be made to the parties in advance of the hearing. Where
objection is then made, it will be as wrong for the Judge to yield to a
tenuous or frivolous objection as it will be to ignore an objection of
substance. However, if there is real ground for doubt, that doubt must
be resolved in favour of recusal. Where, following appropriate
disclosure by the Judge, a party raises no objection to the Judge hearing
or continuing to hear a case, that party cannot subsequently complain
that the matter disclosed gives rise to a real danger of bias.
19. In Justice P.D. Dinakaran v. Hon’ble Judges Inquiry
Committee, (2011) 8 SCC 380, this Court has held that in India the
courts have held that, to disqualify a person as a Judge, the test of real
likelihood of bias, i.e., real danger is to be applied, considering whether
a fair minded and informed person, apprised of all the facts, would have
a serious apprehension of bias. In other words, the courts give effect to
the maxim that `justice must not only be done but be seen to be done’,
by examining not actual bias but real possibility of bias based on facts
and materials.
The Court further held:
2
“The first requirement of natural justice is that the

Judge should be impartial and neutral and must be

free from bias. He is supposed to be indifferent to

the parties to the controversy. He cannot act as

Judge of a cause in which he himself has some

interest either pecuniary or otherwise as it affords

the strongest proof against neutrality. He must be in

a position to act judicially and to decide the matter

objectively. A Judge must be of sterner stuff.

His mental equipoise must always remain

firm and undetected. He should not allow his

personal prejudice to go into the decision-

making. The object is not merely that the scales be

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

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

or against either party to the dispute or is in a

position that a bias can be assumed, he is

disqualified to act as a Judge, and the proceedings

will be vitiated. This rule applies to the

judicial and administrative authorities required

to act judicially or quasi-judicially.”
20. Thus, it is evident that the allegations of judicial bias are required
to be scrutinised taking into consideration the factual matrix of
the case in hand. The court must bear in mind that a mere ground
of appearance of bias and not actual bias is enough to vitiate the
judgment/order. Actual proof of prejudice in such a case may
make the case of the party concerned stronger, but such a proof is
not required. In fact, what is relevant is the reasonableness of the
apprehension in that regard in the mind of the party. However,
once such an apprehension exists, the trial/judgment/order etc.
2
stands vitiated for want of impartiality. Such judgment/order is a
nullity and the trial “coram non-judice”.
II. DOCTRINE OF WAIVER:
21. In Manak Lal (Supra), this Court held that alleged bias of a
Judge/official/Tribunal does not render the proceedings invalid if it is
shown that the objection in that regard and particularly against the
presence of the said official in question, had not been taken by the party
even though the party knew about the circumstances giving rise to the
allegations about the alleged bias and was aware of its right to
challenge the presence of such official. The Court further observed that
waiver cannot always and in every case be inferred merely from the
failure of the party to take the objection. “Waiver can be inferred only
if and after it is shown that the party knew about the relevant facts and
was aware of his right to take the objection in question.”
Thus, in a given case if a party knows the material facts and is
conscious of his legal rights in that matter, but fails to take the plea of
bias at the earlier stage of the proceedings, it creates an effective bar of
waiver against him. In such facts and circumstances, it would be clear
that the party wanted to take a chance to secure a favourable order from
the official/court and when he found that he was confronted with an
2
unfavourable order, he adopted the device of raising the issue of bias.
The issue of bias must be raised by the party at the earliest.
(See: M/s. Pannalal Binjraj & Ors. v. Union of India & Ors., AIR
1957 SC 397; and Justice P.D. Dinakaran (Supra))
22. In M/s. Power Control Appliances & Ors. v. Sumeet
Machines Pvt. Ltd., (1994) 2 SCC 448 this Court held as under:-

“Acquiescence is sitting by, when another is invading

the rights…. It is a course of conduct inconsistent

with the claim… It implies positive acts; not merely

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

The acquiescence must be such as to lead to the

inference of a licence sufficient to create a new right

in the defendant……”

Inaction in every case does not lead to an inference of implied
consent or acquiescence as has been held by this Court in P. John
Chandy & Co. (P) Ltd. v. John P. Thomas, AIR 2002 SC 2057.
Thus, the Court has to examine the facts and circumstances in an
individual case.

23. Waiver is an intentional relinquishment of a right. It involves

conscious abandonment of an existing legal right, advantage, benefit,
claim or privilege, which except for such a waiver, a party could have
enjoyed. In fact, it is an agreement not to assert a right. There can be no

2
waiver unless the person who is said to have waived, is fully informed
as to his rights and with full knowledge about the same, he intentionally
abandons them. (Vide: Dawsons Bank Ltd. v. Nippon Menkwa
Kabushihi Kaish, AIR 1935 PC 79; Basheshar Nath v.
Commissioner of Income-tax, Delhi and Rajasthan & Anr., AIR
1959 SC 149; Mademsetty Satyanarayana v. G. Yelloji Rao & Ors.,
AIR 1965 SC 1405; Associated Hotels of India Ltd. v. S. B. Sardar
Ranjit Singh, AIR 1968 SC 933; Jaswantsingh Mathurasingh &
Anr. v. Ahmedabad Municipal Corporation & Ors., (1992) Suppl 1
SCC 5; M/s. Sikkim Subba Associates v. State of Sikkim, AIR 2001
SC 2062; and Krishna Bahadur v. M/s. Purna Theatre & Ors., AIR
2004 SC 4282).

24. This Court in Municipal Corporation of Greater Bombay v.
Dr. Hakimwadi Tenants’ Association & Ors., AIR 1988 SC 233
considered the issue of waiver/acquiescence by the non-parties to the
proceedings and held:

“In order to constitute waiver, there must be

voluntary and intentional relinquishment of a right.

The essence of a waiver is an estoppel and where

there is no estoppel, there is no waiver. Estoppel

and waiver are questions of conduct and must

2
necessarily be determined on the facts of each

case…….

There is no question of estoppel, waiver or

abandonment. There is no specific plea of waiver,

acquiescence or estoppel, much less a plea of

abandonment of right. That apart, the question of

waiver really does not arise in the case. Admittedly,

the tenants were not parties to the earlier

proceedings. There is, therefore, no question of

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

disentitle the tenants from maintaining the writ

petition.”
25. Thus, from the above, it is apparent that the issue of bias should
be raised by the party at the earliest, if it is aware of it and knows its
right to raise the issue at the earliest, otherwise it would be deemed to
have been waived. However, it is to be kept in mind that acquiescence,
being a principle of equity must be made applicable where a party
knowing all the facts of bias etc., surrenders to the authority of the
Court/Tribunal without raising any objection. Acquiescence, in fact, is
sitting by, when another is invading the rights. The acquiescence must
be such as to lead to the inference of a licence sufficient to create rights
in other party. Needless to say that question of waiver/acquiescence
would arise in a case provided the person apprehending the
bias/prejudice is a party to the case. The question of waiver would not

2
arise against a person who is not a party to the case as such person has
no opportunity to raise the issue of bias.
III. BAR TO REVIEW/ALTER- JUDGMENT
26. There is no power of review with the Criminal Court after
judgment has been rendered. The High Court can alter or review its
judgment before it is signed. When an order is passed, it cannot be
reviewed. Section 362 Cr.P.C. is based on an acknowledged principle
of law that once a matter is finally disposed of by a Court, the said
Court in the absence of a specific statutory provision becomes functus
officio and is disentitled to entertain a fresh prayer for any relief unless
the former order of final disposal is set aside by a Court of competent
jurisdiction in a manner prescribed by law. The Court becomes functus
officio the moment the order for disposing of a case is signed. Such an
order cannot be altered except to the extent of correcting a clerical or
arithmetical error. There is also no provision for modification of the
judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa &
Ors., AIR 2001 SC 43; and Chhanni v. State of U.P., AIR 2006 SC
3051).

2
Moreover, the prohibition contained in Section 362 Cr.P.C. is
absolute; after the judgment is signed, even the High Court in exercise
of its inherent power under Section 482 Cr.P.C. has no authority or
jurisdiction to alter/review the same. (See: Moti Lal v. State of M.P.,
AIR 1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v.
M.M. Manikantan Nair, AIR 2001 SC 2145).
27. If a judgment has been pronounced without jurisdiction or in
violation of principles of natural justice or where the order has been
pronounced without giving an opportunity of being heard to a party
affected by it or where an order was obtained by abuse of the process of
court which would really amount to its being without jurisdiction,
inherent powers can be exercised to recall such order for the reason that
in such an eventuality the order becomes a nullity and the provisions of
Section 362 Cr.P.C. would not operate. In such eventuality, the
judgment is manifestly contrary to the audi alteram partem rule of
natural justice. The power of recall is different from the power of
altering/reviewing the judgment. However, the party seeking
recall/alteration has to establish that it was not at fault. (Vide:
Chitawan & Ors. v. Mahboob Ilahi, 1970 Crl.L.J. 378; Deepak
Thanwardas Balwani v. State of Maharashtra & Anr., 1985 Crl.L.J.
2
23; Habu v. State of Rajasthan, AIR 1987 Raj. 83 (F.B.); Swarth
Mahto & Anr. v. Dharmdeo Narain Singh, AIR 1972 SC 1300;
Makkapati Nagaswara Sastri v. S.S. Satyanarayan, AIR 1981 SC
1156; Asit Kumar Kar v. State of West Bengal & Ors., (2009) 2
SCC 703; and Vishnu Agarwal v. State of U.P. & Anr., AIR 2011 SC
1232).
28. This Court by virtue of Article 137 of the Constitution has been
invested with an express power to review any judgment in Criminal
Law and while no such power has been conferred on the High Court,
inherent power of the court cannot be exercised for doing that which is
specifically prohibited by the Code itself. (Vide: State Represented by
D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran & Ors., AIR 2009 SC
46).
29. In Smt. Sooraj Devi v. Pyare Lal & Anr., AIR 1981 SC 736,
this Court held that the prohibition in Section 362 Cr.P.C. against the
Court altering or reviewing its judgment, is subject to what is
“otherwise provided by this Code or by any other law for the time being
in force”. Those words, however, refer to those provisions only where
the Court has been expressly authorised by the Code or other law to

2
alter or review its judgment. The inherent power of the Court is not
contemplated by the saving provision contained in Section 362 Cr.P.C.
and, therefore, the attempt to invoke that power can be of no avail.
30. Thus, the law on the issue can be summarised to the effect that
the criminal justice delivery system does not clothe the court to add or
delete any words, except to correct the clerical or arithmetical error as
specifically been provided under the statute itself after pronouncement
of the judgment as the Judge becomes functus officio. Any mistake or
glaring omission is left to be corrected only by the appropriate forum in
accordance with law.
IV. INHERENT POWERS UNDER SECTION 482 Cr.P.C.
31. The inherent power under Section 482 Cr.P.C. is intended to
prevent the abuse of the process of the Court and to secure the ends of
justice. Such power cannot be exercised to do something which is
expressly barred under the Cr.P.C. If any consideration of the facts by
way of review is not permissible under the Cr.P.C. and is expressly
barred, it is not for the Court to exercise its inherent power to
reconsider the matter and record a conflicting decision. If there had
been change in the circumstances of the case, it would be in order for

3
the High Court to exercise its inherent powers in the prevailing
circumstances and pass appropriate orders to secure the ends of justice
or to prevent the abuse of the process of the Court. Where there are no
such changed circumstances and the decision has to be arrived at on the
facts that existed as on the date of the earlier order, the exercise of the
power to reconsider the same materials to arrive at different conclusion
is in effect a review, which is expressly barred under Section 362
Cr.P.C. (See: Simrikhia v. Dolley Mukherjee and Chhabi
Mukherjee & Anr, (1990) 2 SCC 437).
32. The inherent power of the court under Section 482 Cr.P.C. is
saved only where an order has been passed by the criminal court which
is required to be set aside to secure the ends of justice or where the
proceeding pending before a court, amounts to abuse of the process of
court. Therefore, such powers can be exercised by the High Court in
relation to a matter pending before a criminal court or where a power is
exercised by the court under the Cr.P.C. Inherent powers cannot be
exercised assuming that the statute conferred an unfettered and arbitrary
jurisdiction, nor can the High Court act at its whim or caprice. The
statutory power has to be exercised sparingly with circumspection and
in the rarest of rare cases. (Vide: Kurukshetra University & Anr. v.
3
State of Haryana & Anr., AIR 1977 SC 2229; and State of W.B. &
Ors. v. Sujit Kumar Rana, (2004) 4 SCC 129).
33. The power under Section 482 Cr.P.C. cannot be resorted to if
there is a specific provision in the Cr.P.C. for the redressal of the
grievance of the aggrieved party or where alternative remedy is
available. Such powers cannot be exercised as against the express bar
of the law and engrafted in any other provision of the Cr.P.C. Such
powers can be exercised to secure the ends of justice and to prevent the
abuse of the process of court. However, such expressions do not confer
unlimited/unfettered jurisdiction on the High Court as the “ends of
justice” and “abuse of the process of the court” have to be dealt with in
accordance with law including the procedural law and not otherwise.
Such powers can be exercised ex debito justitiae to do real and
substantial justice as the courts have been conferred such inherent
jurisdiction, in absence of any express provision, as inherent in their
constitution, or such powers as are necessary to do the right and to undo
a wrong in course of administration of justice as provided in the legal
maxim “quando lex aliquid alique, concedit, conceditur et id sine quo
res ipsa esse non potest”. However, the High Court has not been given
nor does it possess any inherent power to make any order, which in the
3
opinion of the court, could be in the interest of justice as the statutory
provision is not intended to by-pass the procedure prescribed. (Vide:
Lalit Mohan Mondal & Ors. v. Benoyendra Nath Chatterjee, AIR
1982 SC 785; Rameshchandra Nandlal Parikh v. State of Gujarat &
Anr., AIR 2006 SC 915; Central Bureau of Investigation v. Ravi
Shankar Srivastava, IAS & Anr., AIR 2006 SC 2872; Inder Mohan
Goswami & Anr. v. State of Uttaranchal & Ors., AIR 2008 SC 251;
and Pankaj Kumar v. State of Maharashtra & Ors., AIR 2008 SC
3077).
34. The High Court can always issue appropriate direction in exercise
of its power under Article 226 of the Constitution at the behest of an
aggrieved person, if the court is convinced that the power of
investigation has been exercised by an Investigating Officer malafide or
the matter is not investigated at all. Even in such a case, the High Court
cannot direct the police as to how the investigation is to be conducted
but can insist only for the observance of process as provided for in the
Cr.P.C. Another remedy available to such an aggrieved person may be
to file a complaint under Section 200 Cr.P.C. and the court concerned
will proceed as provided in Chapter XV of the Cr.P.C. (See:
Gangadhar Janardan Mhatre v. State of Maharashtra & Ors.,
3
(2004) 7 SCC 768; and Divine Retreat Centre v. State of Kerala &
Ors., AIR 2008 SC 1614).
35. The provisions of Section 482 Cr.P.C. closely resemble Section
151 of Code of Civil Procedure, 1908, (hereinafter called the `CPC’),
and, therefore, the restrictions which are there to use the inherent
powers under Section 151 CPC are applicable in exercise of powers
under Section 482 Cr.P.C. and one such restriction is that there exists
no other provision of law by which the party aggrieved could have
sought relief. (Vide: The Janata Dal v. H.S. Chowdhary & Ors.,
AIR 1993 SC 892).
36. In Divisional Forest Officer & Anr. v. G.V. Sudhakar Rao
& Ors., AIR 1986 SC 328, this Court held that High Court was not
competent under Section 482 Cr.P.C. to stay the operation of an order
of confiscation under Section 44(IIA) of the Andhra Pradesh Forest Act
as it is distinct from a trial before a court for the commission of an
offence.
37. In Popular Muthiah v. State represented by Inspector of
Police, (2006) 7 SCC 296, explaining the scope of Section 482 Cr.P.C.,
this Court held :
3
“The High Court cannot issue directions to

investigate the case from a particular angle or by a

particular agency.” (Emphasis added)
Thus, in case, the High Court in exercise of its inherent powers,
issues directions contravening the statutory provisions laying down the
procedure of investigation, it would be unwarranted in law.
38. In Rajan Kumar Machananda v. State of Karnataka, 1990
(supp.) SCC 132, this Court examined a case as to whether the bar
under Section 397(3) Cr.P.C. can be circumvented by invoking inherent
jurisdiction under Section 482 Cr.P.C. by the High Court. The Court
came to the conclusion that if such a course was permissible it would be
possible that every application facing the bar of Section 397(3) Cr.P.C.
would be labelled as one under Section 482 Cr.P.C. Thus, the statutory
bar cannot be circumvented.
39. This Court has consistently emphasised that judges must
enforce laws whatever they may be and decide the cases strictly in
accordance with the law. “The laws are not always just and the lights
are not always luminous. Nor, again, are judicial methods always
adequate to secure justice”. But the courts “are bound by the Penal
Code and Criminal Procedure Code” by the very `oath’ of the office.
3
(See: Joseph Peter v. State of Goa, Daman and Diu, AIR 1977 SC
1812).
40. It is evident from the above that inherent powers can be
exercised only to prevent the abuse of the process of the court and to
secure the ends of justice. However, powers can be used provided there
is no prohibition for passing such an order under the provisions of
Cr.P.C. and there is no provision under which the party can seek
redressal of its grievance. Under the garb of exercising inherent powers,
the Criminal Court cannot review its judgment. Such powers are
analogous to the provisions of Section 151 CPC and can be exercised
only to do real and substantial justice. The rule of inherent powers has
its source in the maxim “Quadolex aliquid alicui concedit, concedere
videtur id sine quo ipsa, ess uon potest” which means that when the law
gives anything to anyone, it gives also all those things without which
the thing itself could not exist. The order cannot be passed by-passing
the procedure prescribed by law. The court in exercise of its power
under Section 482 Cr.P.C. cannot direct a particular agency to
investigate the matter or to investigate a case from a particular angle or
by a procedure not prescribed in Cr.P.C. Such powers should be
exercised very sparingly to prevent abuse of process of any court.
3
Courts must be careful to see that its decision in exercise of this power
is based on sound principles.
To inhere means that it forms a necessary part and belongs as
an attribute in the nature of things. The High Court under Section 482
Cr.P.C. is crowned with a statutory power to exercise control over the
administration of justice in criminal proceedings within its territorial
jurisdiction. This is to ensure that proceedings undertaken under the
Cr.P.C. are executed to secure the ends of justice. For this, the
Legislature has empowered the High Court with an inherent authority
which is repository under the Statute. The Legislature therefore clearly
intended the existence of such power in the High Court to control
proceedings initiated under the Cr.P.C. Conferment of such inherent
power might be necessary to prevent the miscarriage of justice and to
prevent any form of injustice. However, it is to be understood that it is
neither divine nor limitless. It is not to generate unnecessary
indulgence. The power is to protect the system of justice from being
polluted during the administration of justice under the Code. The High
Court can intervene where it finds the abuse of the process of any court
which means, that wherever an attempt to secure something by abusing
the process is located, the same can be rectified by invoking such

3
power. There has to be a nexus and a direct co-relation to any existing
proceeding, not foreclosed by any other form under the Code, to the
subject matter for which such power is to be exercised.
Application under Section 482 Cr.P.C. lies before the High Court
against an order passed by the court subordinate to it in a pending
case/proceedings. Generally, such powers are used for quashing
criminal proceedings in appropriate cases. Such an application does not
lie to initiate criminal proceedings or set the criminal law in motion.
Inherent jurisdiction can be exercised if the order of the Subordinate
Court results in the abuse of the “process” of the court and/or calls for
interference to secure the ends of justice. The use of word `process’
implies that the proceedings are pending before the Subordinate Court.
When reference is made to the phrase “to secure the ends of justice”, it
is in fact in relation to the order passed by the Subordinate Court and it
cannot be understood in a general connotation of the phrase. More so,
while entertaining such application the proceedings should be pending
in the Subordinate Court. In case it attained finality, the inherent powers
cannot be exercised. Party aggrieved may approach the
appellate/revisional forum. Inherent jurisdiction can be exercised if
injustice done to a party, e.g., a clear mandatory provision of law is

3
overlooked or where different accused in the same case are being
treated differently by the Subordinate Court.
An inherent power is not an omnibus for opening a
pandorabox, that too for issues that are foreign to the main context. The
invoking of the power has to be for a purpose that is connected to a
proceeding and not for sprouting an altogether new issue. A power
cannot exceed its own authority beyond its own creation. It is not that a
person is remediless. On the contrary, the constitutional remedy of writs
are available. Here, the High Court enjoys wide powers of prerogative
writs as compared to that under Section 482 Cr.P.C. To secure the
corpus of an individual, remedy by way of habeas corpus is available.
For that the High Court should not resort to inherent powers under
Section 482 Cr.P.C. as the Legislature has conferred separate powers
for the same. Needless to mention that Section 97 Cr.P.C. empowers
Magistrates to order the search of a person wrongfully confined. It is
something different that the same court exercising authority can, in
relation to the same subject matter, invoke its writ jurisdiction as well.
Nevertheless, the inherent powers are not to provide universal remedies.
The power cannot be and should not be used to belittle its own
existence. One cannot concede anarchy to an inherent power for that

3
was never the wisdom of the Legislature. To confer un-briddled
inherent power would itself be trenching upon the authority of the
Legislature.

V. JURISDICTION OF THE BENCH :

41. The court is “not to yield to spasmodic sentiments to vague and
unregulated benevolence”. The court “is to exercise discretion informed
by tradition, methodized by analogy, disciplined by system”. This
Court in State of Rajasthan v. Prakash Chand & Ors., AIR 1998 SC
1344 observed as under:

“Judicial authoritarianism is what the proceedings

in the instant case smack of. It cannot be permitted

under any guise. Judges must be circumspect and

self-disciplined in the discharge of their judicial

functions……It needs no emphasis to say that all

actions of a Judge must be judicious in character.

Erosion of credibility of the judiciary, in the public

mind, for whatever reasons, is the greatest threat to

the independence of the judiciary. Eternal vigilance

by the Judges to guard against any such latent

internal danger is, therefore, necessary, lest we

“suffer from self-inflicted mortal wounds”. We must

remember that the Constitution does not give

unlimited powers to anyone including the Judge of

all levels. The societal perception of Judges as

being detached and impartial referees is the

greatest strength of the judiciary and every member

of the judiciary must ensure that this perception

does not receive a setback consciously or

4
unconsciously. Authenticity of the judicial process

rests on public confidence and public confidence

rests on legitimacy of judicial process. Sources of

legitimacy are in the impersonal application by the

Judge of recognised objective principles which owe

their existence to a system as distinguished from

subjective moods, predilections, emotions and

prejudices. It is most unfortunate that the order

under appeal founders on this touchstone and is

wholly unsustainable”.

42. This Court in State of U.P. & Ors. v. Neeraj Chaubey & Ors.,
(2010) 10 SCC 320, had taken note of various judgments of this Court
including State of Maharashtra v. Narayan Shamrao Puranik, AIR
1982 SC 1198; Inder Mani v. Matheshwari Prasad, (1996) 6 SCC
587; Prakash Chand (Supra); R. Rathinam v. State, (2002) 2 SCC
391; and Jasbir Singh v. State of Punjab, (2006) 8 SCC 294, and
came to the conclusion that the Chief Justice is the master of roster. The
Chief Justice has full power, authority and jurisdiction in the matter of
allocation of business of the High Court which flows not only from the
provisions contained in sub-section (3) of Section 51 of the States
Reorganisation Act, 1956, but inheres in him in the very nature of
things. The Chief Justice enjoys a special status and he alone can assign
work to a Judge sitting alone and to the Judges sitting in Division
Bench or Full Bench. He has jurisdiction to decide which case will be
heard by which Bench. The Court held that a Judge or a Bench of

4
Judges can assume jurisdiction in a case pending in the High Court only
if the case is allotted to him or them by the Chief Justice. Strict
adherence of this procedure is essential for maintaining judicial
discipline and proper functioning of the Court. No departure from this
procedure is permissible.

In Prakash Chand (Supra), this Court dealt with a case
wherein the Chief Justice of Rajasthan High Court had withdrawn a
part-heard matter from one Bench and directed it to be listed before
another Bench. However, the earlier Bench still made certain
observations. While dealing with the issue, this Court held that it was
the exclusive prerogative of the Chief Justice to withdraw even a part-
heard matter from one Bench and to assign it to any other Bench.
Therefore, the observations made by the Bench subsequent to
withdrawal of the case from that Bench and disposal of the same by
another Bench were not only unjustified and unwarranted but also
without jurisdiction and made the Judge coram non-judice.
It is a settled legal proposition that no Judge or a Bench of
Judges assumes jurisdiction unless the case is allotted to him or them
under the orders of the Chief Justice.

4
It has rightly been pointed out by the Full Bench of Allahabad
High Court in Sanjay Kumar Srivastava v. Acting Chief Justice,
1996 AWC 644, that if the Judges were free to choose their jurisdiction
or any choice was given to them to do whatever case they would like to
hear and decide, the machinery of the court could have collapsed and
judicial functioning of the court could have ceased by generation of
internal strife on account of hankering for a particular jurisdiction or a
particular case.
43. In view of the above, the legal regime, in this respect emerges
to the effect that the Bench gets jurisdiction from the assignment made
by the Chief Justice and the Judge cannot choose as which matter he
should entertain and he cannot entertain a petition in respect of which
jurisdiction has not been assigned to him by the Chief Justice as the
order passed by the court may be without jurisdiction and made the
Judge coram non-judice.

VI. WHEN CBI ENQUIRY CAN BE DIRECTED:
44. In Secretary, Minor Irrigation and Rural Engineering
Services, U.P. & Ors. v. Sahngoo Ram Arya & Anr., AIR 2002 SC

4
2225, this Court placed reliance on its earlier judgment in Common
Cause, A Registered Society v. Union of India & Ors, (1999) 6 SCC
667 and held that before directing CBI to investigate, the court must
reach a conclusion on the basis of pleadings and material on record that
a prima facie case is made out against the accused. The court cannot
direct CBI to investigate as to whether a person committed an offence
as alleged or not. The court cannot merely proceed on the basis of `ifs’
and `buts’ and think it appropriate that inquiry should be made by the
CBI.
45. In Divine Retreat Centre (Supra), this Court held that the High
Court could have passed a judicial order directing investigation against
a person and his activities only after giving him an opportunity of being
heard. It is not permissible for the court to set the criminal law in
motion on the basis of allegations made against a person in violation of
principles of natural justice. A person against whom an inquiry is
directed must have a reasonable opportunity of being heard as he is
likely to be adversely affected by such order and, particularly, when
such an order results in drastic consequence of affecting his reputation.

4
46. In D. Venkatasubramaniam & Ors. v. M.K.Mohan
Krishnamachari & Anr., (2009) 10 SCC 488, this Court held that an
order passed behind the back of a party is a nullity and liable to be set
aside only on this score. Therefore, a person against whom an order is
passed on the basis of a criminal petition filed against him, he should be
impleaded as a respondent being a necessary party.

47. This Court in Disha v. State of Gujarat & Ors., AIR 2011 SC
3168, after considering the various judgments of this Court,
particularly, in Vineet Narain & Ors. v. Union of India & Anr., AIR
1996 SC 3386; Union of India v. Sushil Kumar Modi, (1998) 8 SCC
661; Rajiv Ranjan Singh `Lalan’ (VIII) v. Union of India, (2006) 6
SCC 613; Rubabbuddin Sheikh v. State of Gujarat & Ors., AIR
2010 SC 3175; and Ashok Kumar Todi v. Kishwar Jahan & Ors.,
(2011) 3 SCC 758; held that the court can transfer the matter to the
CBI or any other special agency only when it is satisfied that the
accused is a very powerful and influential person or the State
Authorities like high police officials are involved in the offence and the
investigation has not been proceeded with in proper direction or the
investigation had been conducted in a biased manner. In such a case, in

4
order to do complete justice and having belief that it would lend
credibility to the final outcome of the investigation, such directions may
be issued.
48. Thus, in view of the above, it is evident that a constitutional
court can direct the CBI to investigate into the case provided the court
after examining the allegations in the complaint reaches a conclusion
that the complainant could make out prima facie, a case against the
accused. However, the person against whom the investigation is
sought, is to be impleaded as a party and must be given a reasonable
opportunity of being heard. CBI cannot be directed to have a roving
inquiry as to whether a person was involved in the alleged unlawful
activities. The court can direct CBI investigation only in exceptional
circumstances where the court is of the view that the accusation is
against a person who by virtue of his post could influence the
investigation and it may prejudice the cause of the complainant, and it
is necessary so to do in order to do complete justice and make the
investigation credible.
INSTANT CASES :
49. The present appeals are required to be decided in the light of
the aforesaid settled legal propositions.
4
50. It is evident from the judgment and order dated 11.5.2007 that
Criminal Misc. No.152-MA of 2007 stood dismissed. The order sheet
dated 30.5.2007 reveals that in spite of the disposal of the said criminal
appeal it had been marked therein as “put up for further hearing” and
the order dated 30.5.2007 reveals the directions given to the Trial Court
to furnish a detailed report as to the measures taken by it to bring the
proclaimed offenders, namely Navneet Singh, Manjit Singh,
Manmohan Singh, Gurjant Singh and Balwant Singh before the Court
and the case was adjourned for 2nd July, 2007.

51. Two different orders are available on the record of this case. The
aforesaid marking “put up for further hearing” had been shown in the
order sheet dated 11.5.2007, i.e., the date of disposal of criminal appeal
against acquittal. While in another copy, it is not in the order sheet
dated 11.5.2007 but on the order sheet dated 30.5.2007. In view of this
confusion, this Court vide order dated 17.3.2011 has called for the
original record. It appears from the original record that no such order
had been passed on 11.5.2007. More so, there is nothing on record to
show as under what circumstances the file was put up before the Court

4
on 30.5.2007 as no order had ever been passed by the court in this
regard.
The proceedings dated 10.7.2007, 25.7.2007, 31.7.2007, 6.8.2007
and 9.8.2007 show that the case has been adjourned for short dates. The

order dated 5.9.2007 shows that the Bench headed by Mr. Justice X
was furnished with full information regarding proclaimed offenders by
the authorities. However, the case was adjourned for 19.9.2007. The
order dated 19.9.2007 reveals that the Bench not only entertained the
application filed by Darshan Singh Multani, IAS (Retd.), but also
expressed its anguish that nothing could be done since the year 1993 by
the Chandigarh Police to procure the presence of the proclaimed
offenders. The Police by filing the replies had adopted the delaying
tactics only to derail the process of the court without bringing the
proclaimed offenders to justice. The application filed by the U.T.,
Chandigarh to file a reply to the application filed by Darshan Singh
Multani was rejected. The CBI was further directed to investigate the
case properly, as no worthwhile steps were being taken by the
Chandigarh Police.

4
The order dated 5.10.2007 passed by the Bench shows that the
CBI had been impleaded as respondent in the petition suo motu by the
court. The CBI submitted its reply to the Crl.Misc. Application No.
86287 of 2007 opposing the said application and further submitted that
the matter be not entrusted to the CBI and petition be dismissed being
devoid of any merit.
The order dated 6.11.2007 reveals that the Court enlarged the
scope of investigation by the CBI by including investigations qua
Balwant Singh Bhullar and Manjit Singh.
Relevant part of the order dated 4.7.2008 reads as under:
“After going through the status report, it

comes out that the encounter of Navneet Singh son

of late Tirath Singh of Qadian was a genuine

encounter with the Rajasthan police. We feel that

there is no need to further investigate the matter in

the case of Navneet Singh son of late Tirath Singh.

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

no evidence is coming forth and the CBI is at liberty

to drop the investigation of Manjit Singh son of late

Rattan Singh, if it so desires.”
Thus, it is clear that the Bench was aware of the fact that two
proclaimed offenders had been killed in encounters. Thus, the CBI
was given liberty not to further investigate the matter in case of
Navneet Singh and Manjit Singh, if it so desired.

4
52. The record reveals that Davinder Pal Singh Bhullar was
involved in M.S. Bitta’s assassination attempt and had absconded to
Germany on a fake passport. He was arrested there and was extradited
to India and arrested on 18.1.1995. He was tried for the said offence,
convicted in the year 2001 and given the death sentence. It was
confirmed by the High Court as well as by this Court and the review
petition also stood rejected in January 2003. Ever since 2003, he
remained silent regarding the investigation of the alleged
disappearances of his father and uncle and suddenly woke up in the
year 2007 when the Bench presided by Mr. Justice X started suo motu
hearing various other matters after the disposal of the criminal appeal
against acquittal. The Court was fully aware that another relative of
Bhullar i.e. his father’s sister had filed a case before the High Court in
the year 1997, for production of Balwant Singh Bhullar, the father of
Davinder Pal Singh Bhullar above and not for his uncle Manjit Singh.
The High Court had rejected the said petition vide order dated
15.7.1997 and the matter was not agitated further. Thus, it attained
finality.

5
53. The application of the Punjab Government dated 19.5.2008
bearing Crl. Misc. No. 23084 of 2008 to get itself impleaded in the
matter is still pending consideration, though order dated 23.5.2008
gives a different impression altogether.
54. Admittedly, the application for Leave to Appeal stood disposed
of vide judgment and order dated 11.5.2007. The matter suddenly
appeared before the Bench on 30.5.2007 and the Court directed the
Police to furnish information regarding the proclaimed offenders and a
detailed report as to the measures taken to procure the presence of the
said proclaimed offenders, namely, Navneet Singh, Manjit Singh,
Manmohan Singh, Gurjant Singh and Balwant Singh so that they may
face trial. However, after hearing the matter on few dates, the Court
vide order dated 5.10.2007 closed the chapter of proclaimed offenders
observing as under:
“Since the police of U.T. Chandigarh has now

woken up, that the proclaimed offenders have to be

brought to justice and are making efforts to procure

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

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

General of Police, Union Territory, Chandigarh had

been directed by this Court vide order dated

5.9.2007 to set up a Special Investigation Team

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

no need for this Special Investigation Team. The

Inspector General of Police, UT, Chandigarh is
5
directed to disband the Special Investigation Team

and proceed as per law in the normal course to

procure the presence of the proclaimed offenders,

who are allegedly in foreign countries.” (Emphasis

added)
Therefore, it is evident that the court was very much anxious to
know about the proclaimed offenders, however, after getting certain
information, the Court stopped monitoring the progress in procuring the
presence of any of those proclaimed offenders. By this time, the Court
also came to know that applicant Darshan Singh Multani’s son had also
been killed. Therefore, the chapter regarding the proclaimed offenders
was closed. There was no occasion for the Court to proceed further with
the matter and entertain the applications under Section 482 Cr.P.C.,
filed by Darshan Singh Multani and Davinder Pal Singh Bhullar. At
this stage, the Court started probing regarding missing persons. The
question does arise as to whether applications under Section 482
Cr.P.C. could be entertained in a disposed of appeal or could be heard
by a Bench to which the roster has not been assigned by Hon’ble the
Chief Justice.
In view of the law referred to hereinabove, the Bench was not
competent to entertain the said applications and even if the same had
been filed in the disposed of appeal, the court could have directed to
5
place the said applications before the Bench dealing with similar
petitions.
55. It is evident from the order dated 30.5.2007 that in spite of the
fact that the appeal stood disposed of vide judgment and order dated
11.5.2007, there appears an order in the file: “put up for further
hearing”. That means the matter is to be heard by the same Bench
consisting of Judges `X’ and `A’. However, the matter was listed
before another Bench on 2.7.2007 and the said Bench directed to list the
matter before DB-IV after taking the appropriate order from the Chief
Justice. In absence of the Chief Justice, the senior most Judge passed
the order on 5.7.2007 to list the matter before the DB-IV. The matter
remained with the Presiding Judge, though the other Judge changed
most of the time, as is evident from the subsequent order sheets. Order
sheet dated 30.5.2007 reveals that it was directed to put up the case for
further hearing. Thus, it should have been heard by the Bench as it was
on 30.5.2007.
56. In the counter affidavit filed by Davinder Pal Singh Bhullar,
respondent no.1 before this Court, it has been stated as under:
“W,X, Y&Z That in reply to these grounds, it is

submitted that the answering respondent being
5
behind the bars awaiting his death sentence moved

an application through his counsel in the Hon’ble

High Court, when he came to know from the news

item published in the news paper regarding marking

of CBI enquiry in the case of abduction of Balwant

Singh Multani an Engineer, son of Mr. Darshan

Singh Multani a retired IAS Officer, who was then a

serving officer. When the answering respondent

found that Mr. Sumedh Singh Saini has now been

taken to task by the Hon’ble Division Bench of

Punjab and Haryana High Court, the answering

respondent also moved the Hon’ble High Court for

seeking enquiry regarding the abduction and

murder of his father and his maternal uncle who

were abducted by the lawless police officials

headed by Mr. Sumedh Singh Saini the then SSP

of Chandigarh and the Hon’ble Bench extended

the scope of the enquiry vide order dated

6.11.2007. So the delay is not worthy to be taken

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

Saini which has been mentioned in preliminary

submissions clearly shows that he was able to

threaten and overawe an Hon’ble Punjab and

Haryana High Court Judge in year 1995 and even

though he has been charged by a court for

abduction for murder of three individuals in year

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

year 2008. So throughout this period the manner

in which Mr. Sumedh Singh Saini has been able to

subvert judicial processes did not allow the

respondent to move a court of law and now when

an Hon’ble Division Bench has shown courage to

uphold the majesty of law, that the respondent also

gathered his courage to move the Hon’ble High

Court, with the hope that at some time justice would

prevail.”

(Emphasis added)

5
57. So far as the issue in respect of the proclaimed
complainants/offenders is concerned, the document was before the High
Court to show that a letter had been sent by the U.S Department of
Justice Federal Wing of Investigation to the CBI disclosing that
Manmohan Jit Singh had died on December 2006. Thus, information in
respect of one of the proclaimed offenders was with the court. The
judgment of the Trial Court was before the High Court under challenge.
Thus, the High Court could have taken note of the proclaimed offender
and there was no new material that came before the High Court on the
basis of which proceedings could be revived. The chargesheet in the
Trial Court itself revealed that two persons had died. It appears that the
State counsel also failed to bring these facts to the notice of the court.
58. The impugned order dated 5.10.2007 though gives an
impression that the High Court was trying to procure the presence of
the proclaimed offenders but, in fact, it was to target the police officers,
who had conducted the inquiry against Mr. Justice X. The order reads
that particular persons were eliminated in a false encounter by the
police and it was to be ascertained as to who were the police officers
responsible for it, so that they could be brought to justice.

5
59. There could be no justification for the Bench concerned to
entertain applications filed under Section 482 Cr.P.C. as miscellaneous
applications in a disposed of appeal. The law requires that the Bench
could have passed an appropriate order to place those applications
before the Bench hearing 482 Cr.P.C. petitions or place the matters
before the Chief Justice for appropriate orders.
60. As the High Court after rejecting the applications for leave to
appeal had passed several orders to procure the presence of the
proclaimed offenders so that they could be brought to justice, neither
the State of Punjab nor Mr. S.S. Saini could be held to be the persons
aggrieved by such orders and therefore, there could be no question of
raising any protest on their behalf for passing such orders even after
disposal of the application for leave to appeal as such orders were rather
in their favour. The appellants became aggrieved only and only when
the High Court entertained the applications filed under Section 482
Cr.P.C. for tracing out the whereabouts of certain persons allegedly
missing for the past 20 years. Such orders did not have any connection
with the incident in respect of which the application for leave to appeal
had been entertained and rejected. An application for leave to appeal
that has been dismissed against an order of acquittal cannot provide a
5
platform for an investigation in a subject matter that is alien and not
directly concerned with the subject matter of appeal.
Mr. K.N. Balgopal, learned Senior counsel appearing for the
respondents has submitted that the issue of bias must be agitated by a
party concerned at the earliest and it is not permissible to raise it at such
a belated stage. The legal proposition in this regard is clear that if a
person has an opportunity to raise objections and fails to do so, it would
amount to waiver on his part. However, such person can raise
objections only if he is impleaded as a party-respondent in the case and
has an opportunity to raise an objection on the ground of bias. In the
instant case, neither the State of Punjab nor Mr. S.S. Saini have been
impleaded as respondents. Thus, the question of waiver on the ground
of bias by either of them does not arise.
61. Undoubtedly, in respect of such missing persons earlier habeas
corpus petitions had been filed by the persons concerned in 1991 and
1997 which had been dealt with by the courts in accordance with law.
The writ petition for habeas corpus filed by Mrs. Jagir Kaur in respect
of Balwant Singh Bhullar had been dismissed in 1997 only on the
ground of delay. We fail to understand how a fresh petition in respect

5
of the same subject matter could be entertained after 10 years of
dismissal of the said writ petition.
62. A second writ petition for issuing a writ of habeas corpus is
barred by principles of res judicata. The doctrine of res judicata may
not apply in case a writ petition under Article 32 of the Constitution is
filed before this Court after disposal of a habeas corpus writ petition
under Article 226 of the Constitution by the High Court. However, it is
not possible to re-approach the High Court for the same relief by filing
a fresh writ petition for the reason that it would be difficult for the High
Court to set aside the order made by another Bench of the same court.
In case, a petition by issuing Writ of Habeas Corpus is dismissed by the
High Court and Special Leave Petition against the same is also
dismissed, a petition under Article 32 of the Constitution, seeking the
same relief would not be maintainable.
(See: Ghulam Sarwar v. Union of India & Ors., AIR 1967 SC 1335;
Nazul Ali Molla, etc. v. State of West Bengal, 1969 (3) SCC 698;
Niranjan Singh v. State of Madhya Pradesh, AIR 1972 SC 2215;
Har Swarup v. The General Manager, Central Railway & Ors.,
AIR 1975 SC 202; T.P. Moideen Koya v. Government of Kerala &

5
Ors., AIR 2004 SC 4733; and K. Vidya Sagar v. State of Uttar
Pradesh & Ors., AIR 2005 SC 2911).
63. There may be certain exceptions to the rule that a person was
not aware of the correct facts while filing the first petition or the events
have arisen subsequent to making of the first application. The Court
must bear in mind that doctrine of res judicata is confined generally to
civil action but inapplicable to illegal action and fundamentally lawless
order. A subsequent petition of habeas corpus on fresh grounds which
were not taken in the earlier petition for the same relief may be
permissible. (Vide: Lalubhai Jogibhai Patel v. Union of India &
Ors., AIR 1981 SC 728; Ajit Kumar Kaviraj v. Distt. Magistrate,
Birbhum & Anr., AIR 1974 SC 1917; and Sunil Dutt v. Union of
India & Ors., AIR 1982 SC 53).
64. While dealing with a similar issue, this Court in Srikant v.
District Magistrate, Bijapur & Ors., (2007) 1 SCC 486 observed as
under:

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

decided by the court dealing with the application

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

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

and not the form which is relevant. If some surgical

changes are made with the context, substance and

5
essence remaining the same, it cannot be said that

challenge is on new or fresh grounds”.
65. Thus, in view of the above, the law in the issue emerges that a
case is to be decided on its facts taking into consideration whether
really new issues have been agitated or the facts raised in subsequent
writ petition could not be known to the writ petitioner while filing the
earlier writ petition.
Be that as it may, the parties concerned had not filed fresh writ
petitions, rather chosen, for reasons best known to them applications
under Section 482 Cr.P.C., which could not have been entertained.
66. A large number of documents have been submitted to the court
under sealed cover by the State of Punjab on the direction of this court.
We have gone through the said documents and suffice is to mention
here that Shri Sumedh Singh Saini, IPS had conducted the enquiry in
2002 against Mr. Justice X on the direction of the Chief Justice of the
Punjab and Haryana High Court on the alleged appointment of certain
judicial/executive officers in Punjab through Shri Ravi Sandhu,
Chairman of the Public Service Commission. Shri S.S. Saini had filed
reports against Mr. Justice X. The Chief Justice of Punjab and Haryana
High Court confronted Mr. Justice X with the said reports. On the basis
6
of the said reports, the Chief Justice of the High Court submitted his
report to the Chief Justice of India, on the basis of which a Committee
to investigate the matter further was appointed. This Committee even
examined one Superintendent of Police of the intelligence wing who
had worked directly under Shri S.S. Saini while conducting the enquiry.
67. The High Court has adopted an unusual and unwarranted
procedure, not known in law, while issuing certain directions. The
court not only entertained the applications filed by Shri Davinder Pal
Singh Bhullar and Darshan Singh Multani in a disposed of appeal but
enlarged the scope of CBI investigation from proclaimed offenders to
other missing persons. The court directed the CBI to treat affidavits
handed over by the applicant Shri Bhullar who admittedly had inimical
relation with Shri S.S. Saini, as statement of eye-witnesses. The court
further directed the CBI to change the names of witnesses to witness
(A), (B) or (C) and record their statements under Section 164 Cr.P.C. so
that they could not resile at a later stage. We fail to understand how the
court could direct the CBI to adopt such an unwarranted course.
68. The High Court accepted certain documents submitted by Shri
R.S. Bains, advocate, as is evident from the order dated 22.8.2007 and

6
it was made a part of the record though Shri Bains had not been a
counsel engaged in the case nor he had been representing any of the
parties in the case.
69. When the matter came up for hearing on 2.4.2008, in spite of
the fact that the matter was heard throughout by a particular Division
Bench, Mr. Justice X alone held the proceedings, and accepted the
status report of the CBI sitting singly, as the proceedings reveal that the
other Judge was not holding court on that day. The order sheet dated
2.4.2008 reads as under:
“Status report, which has been presented by the CBI in

Court in a sealed cover, is taken in custody.
Hon’ble Mr. Justice Harbans Lal, who has to hear the

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

holding court today.
To come up on 4.4.2008.

Sd/-

Judge”
70. The FIR unquestionably is an inseparable corollary to the
impugned orders which are a nullity. Therefore, the very birth of the
FIR, which is a direct consequence of the impugned orders cannot have
any lawful existence. The FIR itself is based on a preliminary enquiry

6
which in turn is based on the affidavits submitted by the applicants who
had filed the petitions under Section 482 Cr.P.C.
71. The order impugned has rightly been challenged to be a nullity
at least on three grounds, namely, judicial bias; want of jurisdiction by
virtue of application of the provisions of Section 362 Cr.P.C. coupled
with the principles of constructive res judicata; and the Bench had not
been assigned the roster to entertain petitions under Section 482 Cr.P.C.
The entire judicial process appears to have been drowned to achieve a
motivated result which we are unable to approve of.
72. It is a settled legal proposition that if initial action is not in
consonance with law, all subsequent and consequential proceedings
would fall through for the reason that illegality strikes at the root of the
order. In such a fact-situation, the legal maxim “sublato fundamento
cadit opus” meaning thereby that foundation being removed,
structure/work falls, comes into play and applies on all scores in the
present case.
73. In Badrinath v. State of Tamil Nadu & Ors., AIR 2000 SC
3243; and State of Kerala v. Puthenkavu N.S.S. Karayogam & Anr.,
(2001) 10 SCC 191, this Court observed that once the basis of a
6
proceeding is gone, all consequential acts, actions, orders would fall to
the ground automatically and this principle is applicable to judicial,
quasi-judicial and administrative proceedings equally.

74. Similarly in Mangal Prasad Tamoli (dead) by Lrs. v.
Narvadeshwar Mishra (dead) by Lrs. & Ors., (2005) 3 SCC 422, this
Court held that if an order at the initial stage is bad in law, then all
further proceedings, consequent thereto, will be non est and have to be
necessarily set aside.

75. In C. Albert Morris v. K. Chandrasekaran & Ors., (2006) 1
SCC 228, this Court held that a right in law exists only and only when it
has a lawful origin.
(See also: Upen Chandra Gogoi v. State of Assam & Ors., (1998) 3

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

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

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

2010 SC 3823).
76. Thus, in view of the above, we are of the considered opinion
that the orders impugned being a nullity, cannot be sustained. As a
consequence, subsequent proceedings/orders/FIR/ investigation stand
automatically vitiated and are liable to be declared non est.

6
77. The submission advanced on behalf of the respondents that as
the Special Leave Petition filed against the impugned judgment by
some other party, stood dismissed by this Court, these matters also have
to be dismissed at the threshold without entering into merit, is not worth
acceptance.
The issue as to whether the dismissal of the special leave
petition by this Court in limine, i.e., by a non-speaking order would
amount to affirmation or confirmation or approval of the order
impugned before this Court, has been considered time and again. Thus,
the issue is no more res integra.

A large number of judicial pronouncements made by this Court
leave no manner of doubt that the dismissal of the Special Leave
Petition in limine does not mean that the reasoning of the judgment of
the High Court against which the Special Leave Petition had been filed
before this Court stands affirmed or the judgment and order impugned
merges with such order of this Court on dismissal of the petition. It
simply means that this Court did not consider the case worth examining
for a reason, which may be other than merit of the case. An order
rejecting the Special Leave Petition at the threshold without detailed

6
reasons, therefore, does not constitute any declaration of law or a
binding precedent.

The doctrine of res judicata does not apply, if the case is
entertained afresh at the behest of other parties. No inference can be
drawn that by necessary implication, the contentions raised in the
special leave petition on the merits of the case have been rejected. So it
has no precedential value.

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

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

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

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

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

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

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

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

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

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

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

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

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

SC 428).
CONCLUSIONS :
78. The error in the impugned orders of the High Court transgresses
judicious discretion. The process adopted by the High Court led to
greater injustice than securing the ends of justice. The path charted by
the High Court inevitably reflects a biased approach. It was a

6
misplaced sympathy for a cause that can be termed as being
inconsistent to the legal framework. Law is an endless process of
testing and retesting as said by Justice Cardozo in his conclusion of the
Judicial Process, ending in a constant rejection of the dross and
retention of whatever is pure and sound. The multi-dimensional
defective legal process adopted by the court below cannot be justified
on any rational legal principle. The High Court was swayed away by
considerations that are legally impermissible and unsustainable.
79. In view of the above, the appeals succeed and are accordingly
allowed. The impugned orders challenged herein are declared to be
nullity and as a consequence, the FIR registered by the CBI is also
quashed.
80. However, it is open to the applicants who had filed the petitions
under Section 482 Cr.P.C. to take recourse to fresh proceedings, if
permissible in law.
………………………J.

(Dr. B.S. CHAUHAN)
………………………J.

(A.K. PATNAIK)

New Delhi,

December 7, 2011
6

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