State of Punjab Vs. Davinder Pal Singh Bhullar & Ors. Etc.
[Criminal Appeal Nos. 753-755 of 2009]
Sumedh Singh Saini Vs. Davinder Pal Singh Bhullar & Ors.
[Criminal Appeal No. 2258-2264 of 2011 (Arising out of SLP(Crl.) Nos. 6503-6509 of 2011)]
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. 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 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 3filed 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.
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 5attempt 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 6handover 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 7 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, 8Chandigarh, 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 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, 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 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.
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, 1such 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. 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 1of 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 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 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. 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), 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 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: "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 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 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 2arise 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).
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. 223; 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 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 3the 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. 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, concedituret id sine quo res ipsa esse non potest".
However, the High Court has not been given nor does it possess any inherent power to make any order, which in the opinion of the court, could be 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 : "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. 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 3power. 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 3overlooked 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 3was 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".
