TMI Blog1957 (9) TMI 42X X X X Extracts X X X X X X X X Extracts X X X X ..... nd that will certainly amount to giving the provisions of Art. 226 a retroactive operation. This aspect of the matter does not appear to have been pressed in the High Court or adverted to by it. It is only on this ground that we are constrained, not without regret, to accept this appeal. - Civil Appeal No. 130 of 1956. - - - Dated:- 30-9-1957 - BOSE, VIVIAN DAS, SUDHI RANJAN AIYYAR, T.L. VENKATARAMA, IMAM, SYED JAFFER AND SARKAR, A.K., JJ. For the Appellant.G. C. Mathur and C. P. Lal For the Respondent : S. P. Sinha and S. D. Sekhri JUDGMENT: DAS C. J.- This is an appeal filed under a certificate of fitness granted by the High Court of Judicature at Allahabad under Arts. 132 (1) and 133 (1) (c) of the Constitution. It is directed against the judgment and order of a Division Bench of the said High Court pronounced on March 10, 1952, in Civil Misc. Writ No. 7376 of 1951 quashing the departmental proceedings against the respondent and the orders passed therein, namely, the order for his dismissal passed by the District Superintendent of Police on -December 21, 1948, the order of the Deputy Inspector General of Police passed on June 7, 1949, dismissing his appeal ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... guilty and on April 20, 1948 passed an order of dismissal against him. The respondent went up on appeal to the Deputy Inspector General of Police under Reg. 508. That appeal was dismissed on June 7, 1949. The respondent then filed a revision application to the Inspector General of Police under Reg. 512. That application was also dismissed on April 22, 1950. Having exhausted all his remedies under the Police Act read with the Regulations thereunder the respondent on February 24, 1951, filed a writ petition under Art. 226 of the Constitution, praying that the file of the applicant (now respondent) be called for and his dismissal be set aside and that he be given such further and other relief as he may, in law, be entitled to. The main point taken in the affidavit filed in support of the petition and urged before the High Court was that Shri B. N. Bhalla, District Superintendent of Police, who presided over the trial and as such had to come to a finding and to make an order, also gave his own evidence in the proceedings at two stages and had thus become disqualified from continuing as the judge, as, in the circumstances he was bound to be biased against the respondent. A prelimin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ohammad Khalil, a Head Constable, had spoken about Shariful Hasan being very friendly with the respondent. But while giving his evidence at the departmental trial the said Mohammad Khalil denied having made any such statement. In the circumstances it became necessary to contradict him by the testimony of Shri B. N. Bhalla in whose presence that witness had, on a previous occasion, stated that Shariful Hasan was very friendly with the respondent. Accordingly Shri B. N. Bhalla had his testimony recorded by a Deputy Superintendent of Police. This was done at two stages, namely, once before the charges were framed and again after the framing of the charges. The respondent s grievance is that Shri B. N. Bhalla, who had thus become a witness in the case, ought not to have further continued to act as the presiding officer and that his continuing to do so vitiated the trial and his order was a nullity. That Shri B. N. Bhalla had his own testimony recorded in the case is not denied. Indeed the appellant State, in opposition to the respondent s writ application, filed an affidavit affirmed by Shri B. N. Bhalla, paragraph 8 of which runs as follows: " 8. That the deponent gave his first st ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... discloses considerable bias against the respondent. If it shocks our notions of judicial propriety and fair-play, as indeed it does, it was bound to make a deeper impression on the mind of the respondent as to the Unreality and futility of the proceedings Conducted in this fashion. We find ourselves in agreement with the High Court that the rules of natural justice were completely discarded and all canons of fair-play were grievously violated by Shri B. N. Bhalla continuing to preside over the trial. Decision arrived at by such process and order founded on such decision cannot possibly be regarded as valid or binding. Learned counsel appearing for the appellant State then urges that, assuming that any error, irregularity or illegality had been committed by Shri B. N. Bhalla in the course of the trial held by him, a writ application under art. 226 was not the proper remedy for correcting the same. Reference is made to s. 7 of the Police Act, 1861 which, subject to such rules as the State Government may make under the Act, gives power to certain specified Police Officers of high rank to dismiss, suspend or reduce any Police Officer of the subordinate ranks whom they may think remi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... urder and other offenses and sentenced to death by hanging. Their Convictions and sentences had been Confirmed by the Hyderabad High Court before January 26, 1950, when the Constitution of India came into force. It was after the commencement of the Constitution that the petitioners applied to this Court under Art. 32 praying (1) for a writ in the nature of certiorari calling Upon the Government of Hyderabad and the Special Judge to produce the records of the case and to show cause why the convictions and sentences should not be quashed and (2) for a writ of prohibition directing the Government and the Special Judge not to execute the petitioners. Subsequently the petition was amended, with the leave of the court, by adding prayer (3) for a writ of habeas corpus. A number of points were raised before this Court. As regards the several points complaining of alleged illegality by reason of misjoinder of charges and the infliction of the sentence of death by hanging and not decapitation this Court at page 351 observed "But, for the purpose of the present case, it is ,sufficient to point out that even if we assume that there was some defect in the procedure followed at the trial, it d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion, the mere fact that the trial court had acted without jurisdiction would justify interference, treating the appellate order as a nullity. Evidently, the Appellate Court, in a case which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the matter rightly as well as wrongly. If it affirms the conviction and thereby decides wrongly that the trial court had the jurisdiction to try and convict, it cannot be said to have acted without jurisdiction, and its order cannot be treated as a nullity. It is true that there is no such thing as the principle of constructive res judicata in a criminal case, but there is such a principle as finality of judgments, which applies to criminal as well as civil cases and is implicit in every system, wherein provisions are to be found for correcting errors in appeal or in revision." In the first place it must be noted that the two observations quoted from the decision of this Court on which reliance is placed on behalf of the appellant State were made in a case where the alleged error, irregularity or illegality was committed by a special tribunal wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... sue a certiorari in a case where there has been a denial of natural justice before a court of summary jurisdiction. The case of Rex v.Wadsworth Justices Ex parte Read ([1942] 1 K.B. 281) is an authority in point. In that case a man had been convicted in a court of summary jurisdiction without giving him an opportunity of being heard. It was held that his remedy was not by a case stated or by an appeal before the quarter sessions but by application to the High Court for an order of certiorari to remove and quash the conviction. At page 284 Viscount Caldecote C.J. observed: " It remains to consider the argument that the remedy of certiorari is not open to the applicant because others were available. It would be ludicrous in such a case as the present for the convicted person to ask for a case to be stated. It would mean asking this court to consider as a question of law whether justices were right in convicting a man without hearing his evidence. That is so extravagant an argument as not to merit a moment s consideration.. As to the right of appeal to quarter sessions, it may be that the applicant could have had his remedy if he had pursued that course, but I am not aware of any re ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rding all principles of natural justice and all accepted rules of procedure arrived at a conclusion which shocks the sense of justice and fair play merely because such decision has been upheld by another inferior court or tribunal on appeal or revision? The case of In re, Authers (889 L.R. 22 Q.B.D 345) referred to in Janardan Reddy s case, ([1951] S.C.R. 344) furnishes the answer. There the manager of a club was convicted under a certain statute for selling beer by retail without an excise retail license. Subsequently he was convicted of selling intoxicating liquor, namely, beer without a license under another statute. Upon hearing of the later charge the magistrate treated it as a second offence and imposed a full penalty authorised in the case of a second offence by the latter statute. His appeal to the quarter sessions having been dismissed, he applied for a writ of habeas corpus and it was granted by the King s Bench Division on the ground that the magistrate could not treat the later offence as a second offence, because it was not a second offence under the Act under which he was convicted for the second time. Evidently the point was taken that if there had been any error, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... December 20, 1948, and the order dismissing the appeal was passed by the Deputy Inspector General of Police on June 7, 1949, both of which were before the commencement of the Constitution, the High Court could not exercise its powers under Art. 226 to quash those orders. This argument is countered by the respondent by the argument that the dismissal order of December 20, 1948, did not become final until after the Inspector General of Police had dismissed the revision, application on April 22,1950, that is to say, after the Constitution came into force, and, therefore, the High Court had ample power to quash all the three orders. It is not disputed that our Constitution is prospective in its application and has no retrospective operation except where the contrary has been expressly provided for. It has been held in a series of decisions of the High Courts, some of which are referred to in the judgment under appeal, that Art. 226 and Art. 227 have no retrospective operation and transactions which are past and closed and the rights and liabilities which have accrued and vested would remain unaffected. The correctness of this principle has not been questioned by the High Court when d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the courts of law. The danger of so doing is evident from what has happened in the very case now before us. In the next place, while it is true that a decree of a court of first instance may be said to merge in the decree passed on appeal therefrom or even in the order passed in revision, it does so only for certain purposes, namely, for the purposes of computing the period of limitation for execution of the decree as in Batuk Nath v. Munni Dei (1914) L.R. 41 I.A. 104), or for computing the period of limitation for an application for final decree in a mortgage suit as in Jowad Hussain v. Gendan Singh ((1926) L.R. 53 1 A. 197). But, as pointed out by Sir Lawrence Jenkins in delivering the judgment of the Privy Council in Juscurn Boid v. Prithichand Lal ((1918) L.R. 46 I.A, 52; I.L.R. 46 Cal. 670, 678-679), whatever be the theory under other systems of law, under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal nor is its operation interrupted where the decree on appeal is mer ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... under Art. 226 once a competent Court of appeal has finally decided whether a Court subordinate to it has jurisdiction or not in a given matter. I also accept the position that the Constitution is not retrospective and that the Courts cannot exercise any new jurisdiction and powers conferred by it to reopen decisions and orders that had become final before it came into being. But I cannot agree that is the case here. The very wide powers conferred on the High Courts by Art. 226, and on this Court by Art. 136, were given in order to ensure that justice is done in this land and that the Rule of Law prevails. I see no reason why any narrow or ultra technical restrictions should be placed on them. Justice should, in my opinion, be administered in our Courts in a common-sense liberal way and be broad-based on human values rather than on narrow and restricted considerations hedged round with hairsplitting technicalities. What is the position here ? What would have been the result if the order of April 20, 1948, dismissing the respondent had been passed after the Constitution instead of before it ? At what point of time would the High Court have entertained a petition under Art. 226 ? ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... utional privileges to highly technical procedural decisions dealing with limitation and the merger of decrees. The question to my mind is not whether there has been merger but whether those proceedings can, on any broad and commons view, be regarded as still pending for the purposes of Art. 226. If they would be so regarded when all is done after the Constitution (and about that I have no doubt), what conceivable justification is there for holding that they cannot in this case just because a part of the process had started before it ? The principle that new rights conferred under the Constitution can be used in pending proceedings with devastating effect has been accepted by this Court in many cases. In Lachmandas Kewalram Ahuja v. The State of Bombay ([1952) S.C.R. 710.) my Lord the Chief Justice, delivering the judgment of the Court, pointed out at page 734 that though the Legislature had power to take away normal rights of, among other things, transfer and revision in a criminal case before the Constitution, that kind of legislation became bad after the Constitution, even if it bad been enacted before, because of the new rights conferred by Art. 14. The principle was also appl ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... whether he should believe his own testimony in preference to that of the witness who, in his judgment, had committed perjury and gone back on the truth. It hardly matters whether this was done in good faith or whether the truth lay that way because the spectacle of a judge hopping on and off the bench to act first as judge, then as witness, then as judge again to determine whether he should believe himself in preference to another witness, is startling to say the least. It would, doubtless delight the hearts of a Gilbert and Sullivan Comic Opera audience but will hardly inspire public confidence in the fairness and impartiality of departmental trials; and certainly not in the mind of the respondent. Even before the Constitution, departmental trials were instituted to instil a sense of security in the services and inspire confidence in the public about the treatment accorded to government servants. The question in these cases is always: Whether it is likely to produce, in the minds, of the litigant or the public at large a reasonable doubt about the fairness of the administration of justice. (Manak Lal v. Dr. Prem Chand) (A.I.R. 1957 S.C. 425, 429). One of the English cases reli ..... X X X X Extracts X X X X X X X X Extracts X X X X
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