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Wednesday, August 31, 2016

Order XLVIII of the Supreme Court Rules, 2013.=The opinion of Syed Shah Mohammed Quadri, J. with regard to the situations in which an aggrieved litigant would be entitled to relief under the doctrine of ex debito justitiae has been set out in paragraph 51 of the report which may be reproduced herein below: “Nevertheless, we think that a petitioner is entitled to relief ex debito justitiae if he establishes (1) violation of the principles of natural justice in that he was not a party to the lis but the judgment adversely affected his interests or, if he was a party to the list, he was not served with notice of the proceedings and the matter proceeded as if he had notice, and (2) where in the proceedings a learned judge failed to disclose his connection with the subject-matter or the parties giving scope for an apprehension of bias and the judgment adversely affects the petitioner.” (para 51)=The doctrine of ex debito justitiae being circumscribed by the judgment of this Court in Rupa Ashok Hurra (supra) it is for the petitioner to exhaust the said remedy, if is he so inclined and so advised. Merely because in the comprehension of the writ petitioner the judgment of this Court is erroneous would not enable the Court to reopen the issue in departure to the established and settled norms and parameters of the extent of permissible exercise of jurisdiction as well as the procedural law governing such exercise. We, therefore, hold that the present writ petition is not maintainable and is accordingly dismissed subject to the observations as above.

                                                                  REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL ORIGINAL JURISDICTION
                   WRIT PETITION (CRIMINAL) NO.46 OF 2008
ASHIQ HUSSAIN FAKTOO                       ...PETITIONER

                       VERSUS

UNION OF INDIA & ORS.                                   ...RESPONDENTS

                                  JUDGMENT

RANJAN GOGOI, J.


1.          The writ petitioner has been convicted  by  this  Court  by  its
judgment and order dated 30th January,  2003    passed  in  Criminal  Appeal
No.889 of 2001 under Section 3 of the Terrorist  and  Disruptive  Activities
(Prevention) Act, 1987 (hereinafter referred to as  “TADA  Act”)  and  under
Section  302  read  with  Section  120B  of  the  Indian  Penal  Code,  1860
(hereinafter referred to as “IPC”).  He has been sentenced, inter  alia,  to
undergo imprisonment for life.  The  review  petitions  filed  by  the  writ
petitioner as also by the co-accused (Mohd. Shafi Khan @  Mussadiq  Hussain)
against the  aforesaid  judgment  dated  30th  January,  2003   i.e.  Review
Petition (Criminal) No.478 of 2003 and Review  Petition  (Criminal)  No.1377
of 2003 have been dismissed by order  dated  2nd  September,  2003  of  this
Court.  Curative Petition filed  by  the  co-accused  (Mohd.  Shafi  Khan  @
Mussadiq Hussain) i.e. Curative Petition (Criminal) No.23 of 2004 in  Review
Petition (Criminal) No.1377 of 2003 in Criminal Appeal No.889  of  2001  has
also been dismissed by  order  dated  2nd  February,  2005  of  this  Court.
Thereafter, this writ petition under  Article  32  of  the  Constitution  of
India has been filed by the  present  accused  writ  petitioner  making  the
following prayers:
(a)   Issue a  writ  in  the  nature  of  habeas  corpus  or  other  similar
direction, order or writ to  the  Respondents  thereby  commanding  them  to
produce the petitioner before this Hon'ble Court  and  thereafter  forthwith
release him from illegal custody; and

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

2.          Notwithstanding the prayers made, extracted above,  in  essence,
the writ petition seeks interference with the order of  conviction  and  the
sentence imposed on the petitioner by this Court by its judgment  and  order
dated 30th January, 2003 passed in Criminal Appeal No.889 of 2001.

3.    The Bench initially hearing the present writ petition  had  passed  an
order dated 24th September, 2014 to the following effect:
      “We have been apprised by Mr. Jethmalani  as  the  writ  petition  was
filed, no application for  review  was  filed.  We  are  of  the  considered
opinion if the present writ petition is converted to a review  petition  and
heard in the open Court on the fundamental principles of review as  well  as
the maxim ex debito justitiae, the cause of justice would be  subserved  and
accordingly we direct the Registry to convert the present writ  petition  to
a review petition and list before the appropriate Bench in  open  Court   as
expeditiously as possible.

      Ordered accordingly”

            Subsequently the matter has been referred  to  a  larger  Bench.
This is how we are in seizen of the matter.

4.          As already noted review petitions  were  filed  by  the  present
writ petitioner as also by the  co-accused  (Mohd.  Shafi  Khan  @  Mussadiq
Hussain) and the same were dismissed  by  this  Court  by  order  dated  2nd
September, 2003 the said fact was not brought to the  notice  of  the  Court
while the order dated 24.09.2013 was rendered.

5.          Shri Ram Jethmalani, learned Senior Counsel  appearing  for  the
writ petitioner has urged that the sole basis of the conviction of the  writ
petitioner is the alleged confession  made  by  him.   Shri  Jethmalani  has
urged that the same is not a confession in law inasmuch as  nowhere  in  the
said statement the accused implicates himself with  the  alleged  offence(s)
in any manner.  Neither the confession has been put to the  accused  in  the
course of his examination under the provisions of Section 313  of  the  Code
of Criminal Procedure, 1973, nor there is any corroboration to  the  alleged
confession.  Shri Jethmalani has further urged that Section 15 of  the  TADA
Act makes a confession made to a Police Officer, not lower in  rank  than  a
Superintendent of Police, admissible in the trial of  such  person.  Section
15 of the TADA Act, therefore, works as an exception to Section  25  of  the
Indian Evidence Act, 1872.  However, in the  instant  case,  the  confession
was recorded while the accused was in police custody and,  therefore,  would
not be admissible under Section 26 of the Indian  Evidence  Act,  1872.  The
provisions of Section 15 of the TADA Act are not in exception  to  what  has
been laid down in Section 26 of the Indian Evidence Act, 1872.  It  is  also
urged that the confession recorded is contrary to the provisions of Rule  15
of the TADA Rules read with the guidelines laid down by this Court  in  para
263 of the  judgment  in  Kartar  Singh  Vs.  State  of  Punjab[1].  On  the
aforesaid  grounds,  Shri  Jethmalani  has   submitted   that   a   manifest
miscarriage of justice has been occasioned by the conviction of the  accused
writ petitioner and  the  sentence  imposed  upon  him  which  needs  to  be
corrected on the principle of ex  debito  justitiae.   Shri  Jethmalani  has
also pointed out the decision of this  Court in   Mohd.  Arif  alias  Ashfaq
Vs. Registrar, Supreme Court of India and others[2] to contend  that  review
petitions in  matters  of  convictions  recorded  under  the  TADA  Act  are
required to be heard in open Court.
6.          Shri R.S. Suri, learned Senior Counsel appearing for  the  Union
of India has questioned the maintainability of the present writ petition  on
the ratio of the law laid down by this Court in Rupa Ashok Hurra  Vs.  Ashok
Hurra and another[3]. Drawing the attention of the  Court  to  the  relevant
paragraphs of the report in Rupa Ashok Hurra (supra)  Shri  Suri  has  urged
that neither a writ petition under Article 32 of the Constitution  of  India
nor a second review petition would be maintainable.  It  is  also  submitted
that invoking the principles of ex debito  justitiae,  this  Court  in  Rupa
Ashok Hurra (supra) had carved out an  exception  permitting  the  Court  to
have a re-look at its concluded judgments  on  twin  grounds  i.e.  (1)  the
order being in infraction of the principles of natural justice; and  (2)  or
an order which shakes the integrity of the justice  delivery  system  by  an
association of the judge with the subject matter or the  litigating  parties
which may have escaped the attention of the learned Judge.
7.          On merits, Shri Suri has submitted that what has been  urged  by
Shri Jethmalani is not at all legally tenable  and  all  the  issues  raised
have been duly considered by this Court in its judgment dated 30th  January,
2003 passed in Criminal Appeal  No.889  of  2001.   Shri  Suri  has  further
submitted  that  principle  of  open  court  hearing  laid   down   by   the
Constitution Bench in Mohd. Arif alias Ashfaq (supra) is only  in  cases  of
death penalty cases either under the IPC or the TADA Act.  The reference  to
TADA cases in paragraph 40  of  the  report  in   Mohd.  Arif  alias  Ashfaq
(supra) has to be understood accordingly.
8.          Having heard the learned counsels for the parties we are of  the
view that on the strength of the Constitution Bench judgment in  Rupa  Ashok
Hurra (supra) the present writ petition  would  not  be  maintainable.    It
would also not be maintainable as  a  review  petition  inasmuch  as  Review
Petition (Criminal) No.478 of 2003 filed by the  writ  petitioner  has  been
dismissed by this Court on 2nd  September,  2003.   Open  Court  hearing  of
review petitions in terms of the judgment of this Court in Mohd. Arif  alias
Ashfaq (supra) is available as of right only in death sentence cases.

9.          The principle of ex debito justitiae invoked on  behalf  of  the
accused  writ petitioner to attract the jurisdiction  of  this  Court  under
Article 32 of the Constitution of India to set the accused  writ  petitioner
at liberty, in our considered view, has been elaborately dealt with  in  the
concurring judgment of  Umesh C. Banerjee, J. in Rupa  Ashok  Hurra  (supra)
and holding that the doctrine of ex  debito  justitiae  would  prevail  over
procedural law but would be applicable only in a situation where  the  order
of this Court had been passed without notice or  where  the  order  has  the
effect of eroding the public confidence  in  the  justice  delivery  system.
Paragraph 69 of the report in Rupa Ashok Hurra (supra) containing  the  view
of  Umesh C. Banerjee, J. may be usefully extracted herein below:
      “69.       True, due regard shall have to be had  as  regards  opinion
of the Court in Ranga Swamy [(1990) 1 SCC 288] but the  situation  presently
centres around that in the event  of  there  being  any  manifest  injustice
would the doctrine of ex debito justitiae be said to be  having  a  role  to
play in sheer passivity  or  to  rise  above  the  ordinary  heights  as  it
preaches that justice is above all. The second alternative seems  to  be  in
consonance with time and the present phase of socio-economic  conditions  of
the society. Manifest injustice is curable in nature rather  than  incurable
and  this  Court  would  lose  its  sanctity  and  thus  would   belie   the
expectations of the founding fathers that justice is above all. There is  no
manner of doubt that procedural law/procedural justice cannot overreach  the
concept of justice and in the event an order stands out to  create  manifest
injustice, would the same be allowed to remain in silentio so as  to  affect
the parties perpetually or the concept of  justice  ought  to  activate  the
Court to find a way out to resolve the erroneous approach  to  the  problem?
Mr  Attorney-General,  with  all  the  emphasis  in  his   command,   though
principally agreed that justice of the situation needs  to  be  looked  into
and relief be granted if so required but in the same breath  submitted  that
the Court ought to be careful enough to tread on  the  path,  otherwise  the
same will open up a Pandora’s box and thus, if at  all,  in  rarest  of  the
rare cases, further scrutiny may be made. While it is true that  law  courts
have overburdened themselves with the litigation and delay  in  disposal  of
matters in the subcontinent is not unknown and in the event of  any  further
appraisal of the matter by this Court,  it  would  brook  no  further  delay
resulting in consequences which are not far to see but that would by  itself
not in my view deter this Court from further appraisal of the matter in  the
event the same, however, deserves such an additional appraisal  —  the  note
of caution sounded by Mr.  Attorney-General  as  regards  opening  up  of  a
Pandora’s box, strictly speaking, however, though may be very  practical  in
nature but the same apparently does not seem to go well with the concept  of
justice as adumbrated in our Constitution. True it is,  that  practicability
of the situation needs a serious  consideration  more  so  when  this  Court
could do without it  for  more  than  50  years,  which  by  no  stretch  of
imagination can be said to be a period not so short. I  feel  it  necessary,
however, to add  that  it  is  not  that  we  are  not  concerned  with  the
consequences of reopening of the issue but  the  redeeming  feature  of  our
justice delivery system, as is prevalent in the  country,  is  adherence  to
proper and effective administration of justice  in  stricto.  In  the  event
there is any affectation of such an administration of justice either by  way
of infraction of natural justice or an order  being  passed  wholly  without
jurisdiction or affectation of public confidence as regards the doctrine  of
integrity  in  the  justice  delivery  system,  technicality  ought  not  to
outweigh the course of justice — the same  being  the  true  effect  of  the
doctrine of ex debito justitiae. The oft-quoted statement  of  law  of  Lord
Hewart, C.J. in R. v. Sussex Justices, ex p McCarthy [(1924) 1 KB 256]  that
it is of fundamental importance  that  justice  should  not  only  be  done,
should manifestly and undoubtedly be seen to  be  done,  had  this  doctrine
underlined and administered therein. In this context, the  decision  of  the
House of Lords in R. v. Bow Street Metropolitan Stipendiary  Magistrate,  ex
p Pinochet Ugarte (No. 2)[(1999) 1 All ER 577(HL)] seems  to  be  an  epoch-
making decision, wherein public confidence in the judiciary is  said  to  be
the basic criterion of the justice delivery system — any act or action  even
if it is a passive one, if erodes or is even likely to erode the  ethics  of
judiciary, the matter needs a further look.”

10.   The principle of ex debito justitiae  is founded on a  recognition  of
a debt that the justice delivery system owes to a  litigant  to  correct  an
error in a judicial dispensation.  Its application, by the  very  nature  of
things, cannot be made to depend on varying perceptions of  legal  omissions
and commissions but such recognition of the debt which  have  the  potential
of opening new vistas  of  exercise  of  jurisdiction  to  relook  concluded
cases, must  rest  on  surer  foundations  which  have  been  discerned  and
expressed in Rupa Ashok Hurra (supra).  Frantic cries of  injustice  founded
on perceived erroneous application of law  or  appreciation  of  facts  will
certainly not be enough to extend the frontiers of this jurisdiction.

11.     The opinion of Syed Shah Mohammed Quadri,  J.  with  regard  to  the
situations in which an aggrieved litigant would be entitled to relief  under
the doctrine of ex debito justitiae has been set out in paragraph 51 of  the
report which may be reproduced herein below:
      “Nevertheless, we think that a petitioner is  entitled  to  relief  ex
debito justitiae if he  establishes  (1)  violation  of  the  principles  of
natural justice in that he was not a party  to  the  lis  but  the  judgment
adversely affected his interests or, if he was a party to the list,  he  was
not served with notice of the proceedings and the matter proceeded as if  he
had notice, and (2) where in the  proceedings  a  learned  judge  failed  to
disclose his connection with the subject-matter or the parties giving  scope
for  an  apprehension  of  bias  and  the  judgment  adversely  affects  the
petitioner.” (para 51)

12.   The said jurisdiction because of its very  nature  has  attracted  the
terminology of curative jurisdiction.  The procedural steps with  regard  to
filing and disposal of  applications  invoking  the  curative  jurisdiction,
termed as curative petitions, have also been laid down in paragraphs 52  and
53 of the report of Syed Shah  Mohammed  Quadri,  J.  in  Rupa  Ashok  Hurra
(supra) which now finds mention  in  Order  XLVIII   of  the  Supreme  Court
Rules, 2013.

13.   The present writ petition under Article  32  of  the  Constitution  of
India by no stretch of reasoning would  fit  into  any  of  the  permissible
categories of post conviction exercises permissible in law as laid  down  by
this Court.  The doctrine of ex debito justitiae being circumscribed by  the
judgment of this Court in Rupa Ashok Hurra (supra) it is for the  petitioner
to exhaust the said remedy, if is he so inclined  and  so  advised.   Merely
because in the comprehension of the writ petitioner  the  judgment  of  this
Court is erroneous would not  enable  the  Court  to  reopen  the  issue  in
departure to the established and settled norms and parameters of the  extent
of permissible exercise of  jurisdiction  as  well  as  the  procedural  law
governing  such  exercise.   We,  therefore,  hold  that  the  present  writ
petition is not maintainable and is accordingly  dismissed  subject  to  the
observations as above.

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


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


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

NEW DELHI
AUGUST 30, 2016.
-----------------------
[1]        (1994) 3 SCC 569
[2]   (2014) 9 SCC 737
[3]   (2002) 4 SCC 388

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