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Tuesday, January 10, 2017

Performance of judicial duty=trial Judge passed an order in the order sheet that recorded that the accused persons had been acquitted as per the judgment separately typed, signed and dated. 3. A member of the State Bar Council sent a complaint to the Registry of the High Court of Chhattisgarh, Bilaspur alleging that learned trial judge had acquitted the accused persons but no judgment had been rendered. The Registrar (Vigilance) of the High Court issued a memorandum to the District and Sessions Judge, Surguja at Ambikapur on 18.02.2008 to inquire into the matter and submit a report. The concerned District and Sessions Judge submitted the report to the High Court on the same date stating that no judgments were found in the records of such cases. It has also been brought to the notice of the High Court that in sessions trials being Sessions Trial No. 148 of 1999 and Sessions Trial No. 71 of 1995 though the same trial judge had purportedly delivered the judgments but they were not available on record as the judgments had not actually been dictated, dated or signed. Thereafter the matter was placed before the Full Court of the High Court on 04.03.2008 on which date a resolution was passed placing the concerned trial judge under suspension in contemplation of a departmental inquiry. At the same time, the Full Court took the decision to transfer the cases in question from the concerned trial judge to the file of District and Sessions Judge, Surguja at Ambikapur for rehearing and disposal. It is worthy to note here that the concerned officer was put under suspension and after completion of inquiry was imposed with the punishment of compulsory retirement on 22.03.2011. We make it clear that we are not concerned with the said punishment in the case.


                        IN THE SUPREME COURT OF INDIA


                     CRIMINAL APPEAL NOS. 32-33 OF 2017
                  (@ S.L.P. (Crl.) Nos. 7694-7695 of 2016)

Ajay Singh and Anr and Etc.             …Appellant(s)


State of Chhattisgarh and Anr.            …Respondent(s)

                           J  U  D  G  M  E  N  T

Dipak Misra, J.

      Performance of  judicial duty in  the  manner  prescribed  by  law  is
fundamental to the concept of rule of law in  a  democratic  State.  It  has
been quite often said and, rightly so, that the judiciary is  the  protector
and preserver of rule of law.  Effective functioning of the said  sacrosanct
duty has been entrusted to the judiciary and that  entrustment  expects  the
courts to conduct the judicial  proceeding  with  dignity,  objectivity  and
rationality and finally determine the same in accordance  with  law.  Errors
are bound to occur but there cannot  be  deliberate  peccability  which  can
never be countenanced.   The  plinth  of  justice   dispensation  system  is
founded on the faith, trust and confidence of the people and nothing can  be
allowed to contaminate and corrode the same.  A  litigant  who  comes  to  a
court of law expects that inherent and essential principles of  adjudication
like adherence to doctrine of  audi  alteram  partem,  rules  pertaining  to
fundamental adjective and seminal substantive  law  shall  be  followed  and
ultimately there shall be a reasoned verdict.   When  the  accused  faces  a
charge in a court of  law,  he  expects  a  fair  trial.  The  victim  whose
grievance and agony have given rise to the trial also expects  that  justice
should be done in accordance with law. Thus,  a  fair  trial  leading  to  a
judgment is necessitous in law and that is the assurance that is thought  of
on both sides.  The exponent on behalf of the accused  cannot  be  permitted
to command the trial as desired by his philosophy of trial on  the  plea  of
fair trial and similarly, the proponent on behalf of the victim  should  not
always be allowed to ventilate the grievance that his  cause  has  not  been
fairly dealt with in the name of  fair  trial.  Therefore,  the  concept  of
expediency and fair trial is quite applicable to the accused as well  as  to
the victim.  The result of such trial is to end in a  judgment  as  required
to be pronounced in accordance with law. And, that is how the  stability  of
the creditability in the institution is maintained.

2.       The above prefatory note has relevance, a significant one,  to  the
case at hand. To appreciate the controversy, certain facts are requisite  to
be noted.  The marriage between the appellant No.  1  and  Ruby  Singh,  the
deceased, was  solemnized  according  to  Hindu  rites  on  22.06.1997.  She
committed suicide at her matrimonial home on 01.12.1998.   Kameshwar  Pratap
lodged FIR No. 194/98 at Police Station Lakhanpur,  Distt.  Sarguja  against
Ajay  Singh  (husband),  Sureshwar  Singh  (father-in-law),  Dhanwanti  Devi
(mother-in-law) and Kiran  Singh  (sister-in-law)  for  offences  punishable
under Section 304B, 34 of the Indian Penal Code (IPC)  and  other  offences.
After the criminal  law  was  set  in  motion,  investigating  agency  after
commencement of investigation  and  after  completion  thereof  laid  charge
sheet under Sections 304B, 498A/34, 328 IPC read with Section 3/4  of  Dowry
Prohibition Act, 1961 against the accused persons before the Court of  Chief
Judicial Magistrate, Ambikapur, who, in turn, committed the  matter  to  the
Court of Session and eventually the matter was tried  by  Second  Additional
Sessions Judge, Ambikapur. We are, in the present case, not  concerned  with
how many witnesses were examined  by  the  trial  court  or  how  the  trial
continued.  What needs to be stated is that the learned trial  Judge  passed
an order in the order sheet that recorded that the accused persons had  been
acquitted as per the judgment separately typed, signed and dated.

3.    A member of the State Bar Council sent a complaint to the Registry  of
the High Court of Chhattisgarh, Bilaspur alleging that learned  trial  judge
had acquitted the accused persons but no judgment had  been  rendered.   The
Registrar (Vigilance) of the High Court issued a memorandum to the  District
and Sessions Judge, Surguja at Ambikapur on 18.02.2008 to inquire  into  the
matter and submit a  report.  The  concerned  District  and  Sessions  Judge
submitted the report to the High Court on the  same  date  stating  that  no
judgments were found in the records of such cases. It has also been  brought
to the notice of the High Court  that  in  sessions  trials  being  Sessions
Trial No. 148 of 1999 and Sessions Trial No. 71  of  1995  though  the  same
trial judge had purportedly  delivered  the  judgments  but  they  were  not
available on record as the judgments had not actually been  dictated,  dated
or signed.  Thereafter the matter was placed before the Full  Court  of  the
High Court on 04.03.2008 on which date a resolution was passed  placing  the
concerned trial judge under suspension in contemplation  of  a  departmental
inquiry.  At the same time, the Full Court took  the  decision  to  transfer
the cases in question  from  the  concerned  trial  judge  to  the  file  of
District  and  Sessions  Judge,  Surguja  at  Ambikapur  for  rehearing  and
disposal. It is worthy to note here  that  the  concerned  officer  was  put
under suspension and after  completion  of  inquiry  was  imposed  with  the
punishment of compulsory retirement on 22.03.2011. We make it clear that  we
are not concerned with the said punishment in the case.
4.    After the decision was taken for transferring the cases  by  the  Full
Court for rehearing, three writ petitions  forming  the  subject  matter  of
Writ Petition (Criminal) Nos. 2796 of 2008, 2238 of 2008  and  276  of  2010
were filed. The accused in  Sessions  Trial  No.  148  of  1999  filed  Writ
Petition (Criminal) Nos. 2796 of 2008  and  2238  of  2008  and  accused  in
Sessions Trial  No. 71 of 1995 filed the other writ petition, that is,  Writ
Petition (Criminal) No. 276 of 2010.
5.    The controversy really centers around two issues, namely, whether  the
learned trial judge had really  pronounced  the  judgment  of  acquittal  on
31.10.2007 and whether  the  High  Court  could  have  in  exercise  of  its
administrative power treated the trial as pending and transferred  the  same
from the Court of Second Additional Sessions Judge, Ambikapur to  the  Court
of District and Sessions Judge,  Surguja  at  Ambikapur  for  rehearing  and
6.    It is urged by learned counsel for the appellants that the  nature  of
order passed by the learned trial judge would amount to a  judgment  and  in
the absence of any appeal preferred by the State there could not  have  been
a direction for rehearing of the sessions case as such action runs  contrary
to the provisions of CrPC.  Learned  counsel  would  submit  that  the  High
Court  in  exercise  of  power  of  the  superintendence  could   not   have
transferred the case treating it as pending on its administrative side.   To
bolster the said submission he  has  placed  reliance  on  Ouseph  Mathai  &
others v. M. Abdul Khadir[1], Essen Deinki v. Rajiv Kumar[2] and  Surya  Dev
Rai v. Ram Chander Rai and others[3].
7.    Mr. C.D. Singh, learned counsel  for  the  State  submitted  that  the
approach of the High Court is absolutely infallible  and  does  not  warrant
any interference by this Court.

8.    To appreciate the controversy, it is necessary to refer to  the  order
sheet in Sessions Trial No. 71 of 1995. The trial  judge  on  28.1.2008  had
passed the following order:-

State represented by Shri Rajesh Tiwari, A.G.P.
Accused along with their Counsel Shri Arvind Mehta, Advocate
The judgment has been typed separately.  The same  has  been  dated,  signed
and announced.
Resultantly, Accused T.P. Ratre is acquitted of  the  charge  under  Section
306 IPC.
A copy of  this  judgment  be  sent  to  the  District  Magistrate,  Surguja
(Ambikapur) through A.G.P.
Proceedings completed.
The result be noted in the register and the record be  sent  to  the  Record

Be it noted, in the other Sessions Trial, i.e., Sessions Trial  No.  148  of
1999 almost similar order has been passed. Be  it  stated,  apart  from  the
aforesaid order, as per  the  enquiry  conducted  by  the  learned  District
Judge, there was nothing on record.  The trial judge had  not  dictated  the
order in open court.  In such a situation, it is to  be  determined  whether
the judgment had been delivered by the trial judge or not.
9.    Chapter XVIII of CrPC provides for trial before a  court  of  session.
Section 227 empowers the trial judge to discharge the accused after  hearing
the submissions of the accused and the prosecution and  on  being  satisfied
that there is no sufficient ground for proceeding against the accused.   The
key words of the Section are “not sufficient ground for  proceeding  against
the   accused”.   Interpreting   the   said   provision,   the   Court    in
P. Vijayan v. State of Kerala and another[4] has held that the Judge is  not
a mere post office to frame the charge at the  behest  of  the  prosecution,
but has to exercise his judicial mind to the facts of the case in  order  to
determine whether a case for trial has been made out by the prosecution.  In
assessing this fact, it is not necessary for the court  to  enter  into  the
pros and cons of the matter or into a weighing  and  balancing  of  evidence
and probabilities which is really the  function  of  the  court,  after  the
trial starts. At the stage of Section 227, the Judge has merely to sift  the
evidence in order to find out whether or not there is sufficient ground  for
proceeding against the accused. In other words, the  sufficiency  of  ground
would take within its fold the  nature  of  the  evidence  recorded  by  the
police or the documents produced before the court which  ex  facie  disclose
that there are suspicious circumstances against the accused so as  to  frame
a charge against him.
10.   Section 228 empowers the trial judge to  frame  the  charge.   Section
229 provides if the accused pleads guilty, the Judge shall record  the  plea
and may, in his discretion, convict him thereon.  Section 230  provides  for
date for prosecution evidence.  Section 231  deals  with  the  evidence  for
prosecution.  Section 232 provides that if, after taking  the  evidence  for
the prosecution, examining the  accused  and  hearing  the  prosecution  the
defence on the point, the Judge considers that there  is  no  evidence  that
the accused committed the offence,  the  Judge  shall  record  an  order  of
acquittal. Section 233 stipulates that where the accused  is  not  acquitted
under Section 232 he shall be called  upon  to  enter  on  his  defence  and
adduce any evidence he may have in support thereof.   Section  234  provides
for arguments. Section 235 which  provides  for  judgment  of  acquittal  or
conviction reads as follows:-
“235. Judgment of acquittal or conviction. –  (1)  After  hearing  arguments
and points of law (if any), the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge  shall,  unless  he  proceeds  in
accordance with the provisions of section  360,  hear  the  accused  on  the
question of sentence, and then pass sentence on him according to law.”

11.   Chapter XXIV provides for  general  provisions  as  to  inquiries  and
trials. Chapter XXVII deals with the judgment. Section  353  lays  down  the
procedure for pronouncement of the judgment. The  said  provision  reads  as
“353. Judgment -
(1) The  judgment  in  every  trial  in  any  Criminal  Court  of   original
jurisdiction shall be pronounced in open  Court  by  the  presiding  officer
immediately after the termination of the trial or at  some  subsequent  time
of which notice shall be given to the parties or their pleaders,-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the  judgment  and  explaining  the
substance of the judgment in a language which is understood by  the  accused
or his pleader.
(2) Where the judgment is delivered under clause  (a)  of  sub-section  (1),
the presiding officer shall cause it to be taken down  in  short-hand,  sign
the transcript and every page thereof as soon  as  it  is  made  ready,  and
write on it the date of the delivery of the judgment in open Court.
(3) Where the judgment or the operative  part  thereof  is  read  out  under
clause (b) or clause (c) of sub- section (1), as the case may be,  it  shall
be dated and signed by the presiding officer in open Court,  and  if  it  is
not written with his own hand, every page of the judgment  shall  be  signed
by him.
(4) Where the judgment is pronounced in the manner specified in  clause  (c)
of  sub-section  (1),  the  whole  judgment  or  a  copy  thereof  shall  be
immediately made available for the perusal of the parties or their  pleaders
free of cost.
(5) If the accused is in custody,  he  shall  be  brought  up  to  hear  the
judgment pronounced.
(6) If the accused is not in custody, he shall be required by the  Court  to
attend  to  hear  the  judgment  pronounced,  except  where   his   personal
attendance during the trial has been dispensed with and the sentence is  one
of fine only or he  is  acquitted:  Provided  that,  where  there  are  more
accused than one, and one or more of them do not attend  the  Court  on  the
date on which the judgment is to be pronounced, the presiding  officer  may,
in order to avoid undue delay in the disposal of  the  case,  pronounce  the
judgment notwithstanding their absence.
(7) No judgment delivered by any  Criminal  Court  shall  be  deemed  to  be
invalid by reason only of the absence of any party or  his  pleader  on  the
day or from the place notified for the delivery thereof, or of any  omission
to serve, or defect in serving, on the parties or their pleaders, or any  of
them, the notice of such day and place.
(8) Nothing in this section shall be construed  to  limit  in  any  way  the
extent of the provisions of section 465.”

12.   Section 354 provides for language and contents of  the  judgment.  The
said provision reads as follows:-
“354. Language and contents of judgment.-
(1) Except as otherwise expressly provided  by  this  Code,  every  judgment
referred to in section 353,-
(a) shall be written in the language of the Court;
(b) shall contain the  point  or  points  for  determination,  the  decision
thereon and the reasons for the decision;
(c) shall specify the offence (if any) of which,  and  the  section  of  the
Indian Penal Code (45 of 1860 ) or other law under  which,  the  accused  is
convicted and the punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the offence of  which  the
accused is acquitted and direct that he be set at liberty.
(2) When the conviction is under the Indian Penal Code (45 of  1860  ),  and
it is doubtful under which of two sections, or under which of two  parts  of
the  same  section,  of  that  Code  the  offence  falls,  the  Court  shall
distinctly express the same, and pass judgment in the alternative.
(3) When the conviction is for an offence punishable with death or,  in  the
alternative, with imprisonment for  life  or  imprisonment  for  a  term  of
years, the judgment shall state the reasons for the sentence  awarded,  and,
in the case of sentence of death, the special reasons for such sentence.
(4) When the conviction is for an offence punishable with  imprisonment  for
a  term  of  one  year  or  more,  but  the  Court  imposes  a  sentence  of
imprisonment for a term of less than  three  months,  it  shall  record  its
reasons  for  awarding  such  sentence,  unless  the  sentence  is  one   of
imprisonment till the rising of the Court  or  unless  the  case  was  tried
summarily under the provisions of this Code.
(5) When any person is sentenced to death, the sentence  shall  direct  that
he be hanged by the neck till he is dead.
(6) Every order under section 117 or sub-section  (2)  of  section  138  and
every final order made under section 125, section 145 or section  147  shall
contain the point or points for determination, the decision thereon and  the
reasons for the decision.”

13.   Section 362 has the heading “Court not to alter  judgment.”  The  said
provision is as follows:-
“362. Court not to alter judgment.?Save as otherwise provided by  this  Code
or by any other law for the time being in  force,  no  Court,  when  it  has
signed its judgment or final order disposing  of  a  case,  shall  alter  or
review the same except to correct a clerical or arithmetical error.”

14.   Interpreting  the  said  provision  in  the  context  of  exercise  of
inherent power of the High Court under Section 482 CrPC this Court  in  Smt.
Sooraj Devi v. Pyare Lal and another[5] held thus:-
“5. The appellant points out that he invoked the inherent power of the  High
Court saved by  Section  482  of  the  Code  and  that  notwithstanding  the
prohibition imposed by Section  362  the  High  Court  had  power  to  grant
relief. Now it is well settled that the inherent power of the  court  cannot
be exercised for doing that which is specifically  prohibited  by  the  Code
(Sankatha Singh v. State of U.P.[6]). It is true  that  the  prohibition  in
Section 362 against the court altering or reviewing its judgment is  subject
to what is “otherwise provided by this Court 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   and,
therefore, the attempt to invoke that power can be of no avail.”

We have referred to the aforesaid  decision  to  illustrate  that  the  CrPC
confers absolute sanctity to the judgment once it is  pronounced.   It  does
not conceive of any kind of alteration.
15.   Section 363 provides copy of judgment to be given to the  accused  and
other persons.  Section 364 provides for the situation  where  the  judgment
requires to be translated.
16.   It is apposite to note that though  CrPC  does  not  define  the  term
“judgment”, yet it  has  clearly  laid  down  how  the  judgment  is  to  be
pronounced. The provisions clearly spell out that it is  imperative  on  the
part of the learned trial judge to pronounce the judgment in open  court  by
delivering the whole of the judgment or by reading  out  the  whole  of  the
judgment  or  by  reading  out  the  operative  part  of  the  judgment  and
explaining the substance of the judgment in a language which  is  understood
by the accused or his pleader.
17.   We have already noted that the  judgment  was  not  dictated  in  open
court.  Code of Criminal Procedure provides reading of  the  operative  part
of the judgment. It means that the trial judge may not  read  the  whole  of
the judgment and may read operative part of the judgment but it does not  in
any way suggest that the result of  the  case  will  be  announced  and  the
judgment would not be available on record. Non-  availability  of  judgment,
needless to say, can never be a judgment because there is no declaration  by
way of pronouncement in the open court that the accused has  been  convicted
or acquitted.  A judgment, as has been always understood, is the  expression
of an opinion after due consideration of  the  facts  which  deserve  to  be
determined. Without pronouncement of a judgment in the  open  court,  signed
and dated, it is difficult to treat it as a judgment of  conviction  as  has
been held in Re. Athipalayan and Ors[7].   As a matter of fact, on  inquiry,
the High Court in the administrative side had found there  was  no  judgment
available on record.  Learned counsel for the appellants would  submit  that
in the counter affidavit filed by the High Court it has been mentioned  that
an incomplete typed  judgment  of  14  pages   till  paragraph  No.  19  was
available.  The affidavit also states that it was  incomplete  and  no  page
had the signature  of  the  presiding  officer.   If  the  judgment  is  not
complete and signed, it cannot be a judgment in terms of Section  353  CrPC.
It is unimaginable that a judgment  is  pronounced  without  there  being  a
judgment.  It is gross illegality. In  this  context,  we  may  refer  to  a
passage from State  of  Punjab   and  others  v.  Jagdev  Singh  Talwandi[8]
wherein expressing the opinion  for  the  Constitution  Bench,  Chandrachud,
C.J. observed thus:-
“30. We would like to take  this  opportunity  to  point  out  that  serious
difficulties arise on account of the practice increasingly  adopted  by  the
High Courts, of pronouncing the final order without a reasoned judgment.  It
is desirable that the final order which  the  High  Court  intends  to  pass
should  not  be  announced  until  a  reasoned   judgment   is   ready   for
pronouncement. Suppose, for example, that a final order without  a  reasoned
judgment is announced by the High Court that a house  shall  be  demolished,
or that the custody of a child  shall  be  handed  over  to  one  parent  as
against the other,  or  that  a  person  accused  of  a  serious  charge  is
acquitted, or that a statute is  unconstitutional  or,  as  in  the  instant
case, that a detenu be released from detention. If  the  object  of  passing
such orders is to ensure speedy compliance with them, that  object  is  more
often defeated by the aggrieved party filing a  special  leave  petition  in
this Court against the order passed by the  High  Court.  That  places  this
Court in a predicament because, without the benefit of the reasoning of  the
High Court, it is difficult for this Court to allow the  bare  order  to  be
implemented. The result inevitably  is  that  the  operation  of  the  order
passed by the High Court has to be stayed pending delivery of  the  reasoned

31. It may be thought  that  such  orders  are  passed  by  this  Court  and
therefore there is no reason why the High Courts should not do the same.  We
would like to point out respectfully that the orders passed  by  this  Court
are final and no appeal lies against them. The Supreme Court  is  the  final
court in the hierarchy of our courts. Besides,  orders  without  a  reasoned
judgment  are  passed  by  this  Court  very   rarely,   under   exceptional
circumstances. Orders passed by the High Court are subject to the  appellate
jurisdiction of this Court under Article 136 of the Constitution  and  other
provisions of the concerned statutes. We thought it necessary to make  these
observations in order that a practice which is not very desirable and  which
achieves no useful purpose may not grow out of its present infancy.”

18.   We have reproduced the aforesaid two passages as the larger Bench  has
made such  observations  with  regard  to              unreasoned  judgments
passed by the High Courts. The learned Chief  Justice  had  noted  that  the
practice is not desirable and does not achieve any  useful  purpose  and  it
should not grow out of its present infancy.  Despite the said  observations,
sometimes this Court comes  across  judgments  and  orders  where  the  High
Courts have announced  the  result  of  the  case  by  stating  “reasons  to
follow”. We can only reiterate the observations of the Constitution Bench.
19.    Having stated  that,  as  is  evincible  in  the  instant  case,  the
judgment is not available on record and hence, there can  be  no  shadow  of
doubt that the declaration of the result cannot tantamount to a judgment  as
prescribed in the CrPC.  That leads to the inevitable  conclusion  that  the
trial in both the cases has to be treated to be pending.
20.   The next issue that emerges for  consideration  is  whether  the  High
Court on its administrative side could have transferred the  case  from  the
Second Additional Sessions Judge, Ambikapur to the  Court  of  District  and
Sessions Judge, Surguja at Ambikapur. In  this  regard,  it  is  suffice  to
understand the jurisdiction and authority conferred under  the  Constitution
on the High Court in the prescription  of  power  of  superintendence  under
Article 227. Article 227 of the Constitution reads as follows:-
“227. Power of superintendence over all courts by the High  Court:-(1) Every
High  Court  shall  have  superintendence  over  all  courts  and  tribunals
throughout the territories in relation to which it exercises jurisdiction.
(2) Without prejudice to the generality of  the  foregoing  provisions,  the
High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and  prescribe  forms  for  regulating  the
practice and proceedings of such courts; and
(c) prescribe forms in which books, entries and accounts shall  be  kept  by
the officers of any such courts
(3) The High Court may also settle tables of  fees  to  be  allowed  to  the
sheriff and all clerks  and  officers  of  such  courts  and  to  attorneys,
advocates and pleaders practising therein:
     Provided that any rules made, forms prescribed or tables settled  under
clause (2) or clause (3) shall not be inconsistent  with  the  provision  of
any law for the  time  being  in  force,  and  shall  require  the  previous
approval of the Governor
(4) Nothing in this article shall be  deemed  to  confer  on  a  High  Court
powers of superintendence over any  court  or  tribunal  constituted  by  or
under any law relating to the Armed Forces.”

      The aforesaid Article confers power of  superintendence  on  the  High
Court over the courts and tribunals within the territory of the  State.  The
High Court has the jurisdiction and  the  authority  to  exercise  suo  motu
21.   In Achutananda Baidya v. Prafullya Kumar Gayen and  others[9]  a  two-
Judge Bench while dealing with the power  of  superintendence  of  the  High
Court under Article 227 has opined that the power of superintendence of  the
High Court under  Article  227  of  the  Constitution  is  not  confined  to
administrative superintendence only  but  such  power  includes  within  its
sweep the power of judicial review. The power and duty  of  the  High  Court
under Article 227 is essentially to ensure that the  courts  and  tribunals,
inferior to High Court, have done what they were  required  to  do.  Law  is
well settled by various decisions of this Court  that  the  High  Court  can
interfere under Article 227  of  the  Constitution  in  cases  of  erroneous
assumption  or  acting  beyond  its  jurisdiction,   refusal   to   exercise
jurisdiction, error of law apparent on record as distinguished from  a  mere
mistake  of  law,  arbitrary  or  capricious  exercise   of   authority   or
discretion, a patent error in procedure, arriving  at  a  finding  which  is
perverse or based on no material, or resulting in manifest injustice.
22.   We have already stated that the Division Bench while  concurring  with
the opinion of the learned single Judge has also quashed the  order  by  the
learned trial judge on the ground that there  was  no  judgment  on  record.
There is no dispute about the fact that the Full Court  of  the  High  Court
after coming to a definite conclusion  that  the  learned  trial  judge  had
really not passed any judgment, resolved that the matter should be heard  by
the learned Sessions Judge and accordingly  the  Registrar  General  of  the
High Court communicated the  decision  to  the  concerned  learned  Sessions
Judge. The submission of the learned counsel for the appellant is that  such
a  power  could  not  have  been  exercised  by  the  Full  Court   on   the
administrative side, for in exercise of administrative authority,  the  High
Court cannot transfer the case. The contention is that High Court  can  only
transfer the case in exercise of power under Section 407  and  that  too  on
the judicial side. Our attention has also been  drawn  to   Section  194  of
CrPC. Section 194 empowers the Additional and Assistant Sessions  Judges  to
try cases made over to them. The said provision reads as follows:-
“194. Additional and Assistant Sessions Judges to try  cases  made  over  to
them.? An Additional Sessions Judge or Assistant Sessions  Judge  shall  try
such cases as the Sessions Judge of the division may, by general or  special
order, make over to him for trial or as  the  High  Court  may,  by  special
order, direct him to try.”

23.   It is argued that Section 194 can be exercised on  the  administrative
side before the commencement  of  the  trial  and  not  thereafter,  whereas
Section 407 can be taken recourse to on the judicial side and a case can  be
transferred on the basis of parameters laid down for transfer of a  criminal
trial. In this regard, we may usefully refer  to  the  authority  in  Ranbir
Yadav v. State of Bihar[10] wherein under  certain  circumstances  the  High
Court had transferred the sessions trial from the court  of  one  Additional
Sessions Judge to another by an administrative order at  a  stage  when  the
trial had commenced.  It was contended before  this  Court  that  the  trial
that took place before the transferee court was wholly without  jurisdiction
and consequently the conviction and sentence recorded  by  that  court  were
null and void and were not curable under Section 465 CrPC.  To  sustain  the
said proposition of law, reliance was placed in A.R. Antulay v.  R.S.  Nayak
and another[11].  The two-Judge Bench perusing the material on  record  came
to the conclusion that the order  was  passed  by  the  High  Court  in  its
administrative jurisdiction. Thereafter, it proceeded to opine thus:-
“Under Article 227 of  the  Constitution  of  India  every  High  Court  has
superintendence over all courts and tribunals throughout the territories  in
relation to which it exercises jurisdiction and it is trite that this  power
of  superintendence  entitles  the   High   Court   to   pass   orders   for
administrative exigency and expediency. In the instant case it appears  that
the High Court had exercised the power of transfer in  the  context  of  the
petition filed by some of the accused from jail complaining that they  could
not be accommodated in the courtroom as a result of which some of  them  had
to remain outside. It further appears that the other  grievance  raised  was
that the court was so crowded that even  clerks  of  the  lawyers  were  not
being allowed to enter the courtroom to carry the briefs. Such  a  situation
was obviously created by the trial of a large number of persons. If  in  the
context  of  the  above  facts,  the  High  Court  exercised   its   plenary
administrative power to transfer the  case  to  the  5th  Court,  which,  we
assume had a bigger and  better  arrangement  to  accommodate  the  accused,
lawyers and others connected with the trial no exception  can  be  taken  to
the same, particularly by those at whose instance and for whose benefit  the
power was exercised.”

Proceeding further, the Court held that:-
“So long as  power  can  be  and  is  exercised  purely  for  administrative
exigency without impinging upon and prejudicially affecting  the  rights  or
interests of the parties to any judicial  proceeding  we  do  not  find  any
reason to hold that administrative  powers  must  yield  place  to  judicial
powers  simply  because  in  a  given  circumstance  they  coexist.  On  the
contrary, the  present  case  illustrates  how  exercise  of  administrative
powers were more expedient, effective and efficacious.  If  the  High  Court
had intended to exercise its judicial powers of  transfer  invoking  Section
407 of  the  Code  it  would  have  necessitated  compliance  with  all  the
procedural formalities thereof, besides providing adequate opportunities  to
the parties of a proper hearing which,  resultantly,  would  have  not  only
delayed the trial but further incarceration of some of the  accused.  It  is
obvious, therefore, that by invoking its power of  superintendence,  instead
of judicial powers, the High Court not only redressed the grievances of  the
accused and  others  connected  with  the  trial  but  did  it  with  utmost

24.   The Court distinguished the authority in A.R. Antulay case (supra)  on
the basis that in the said case the  Court  was  dealing  with  a  situation
where this Court had transferred the case to the High Court  which  was  not
authorized by law and the Court could not have conferred  the  jurisdictions
on the High Court as it did not possess such jurisdiction under  the  scheme
of the Criminal Law Amendment Act,  1952.   The  controversy  the  two-Judge
Bench was dealing with pertained to transfer of  the  case  to  the  learned
Additional Sessions Judge who was competent under the CrPC  to  conduct  the
sessions trial and, therefore, the Court  in  Ranbir  Yadav’s  case  (supra)
ruled that the order of transfer to another court did not  suffer  from  any
legal infirmity.
25.   In the case at hand, the High Court on  the  administrative  side  had
transferred the  case  to  the  learned  Sessions  Judge  by  which  it  has
conferred jurisdiction on the trial court which has the jurisdiction to  try
the sessions case under CrPC.  Thus, it has done so as it has, as  a  matter
of  fact,  found  that  there  was  no  judgment  on  record.  There  is  no
illegality.  Be it noted, the Division Bench in the appeal preferred at  the
instance of the present appellants  thought  it  appropriate  to  quash  the
order as there is no judgment  on  record  but  a  mere  order-sheet.  In  a
piquant situation like the present one, we are disposed to  think  that  the
High Court was under legal obligation to set aside the order as  it  had  no
effect in law.  The High Court has correctly done so as it has the  duty  to
see that sanctity of justice is not undermined.   The High  Court  has  done
so as it has felt that an order  which  is  a  mere  declaration  of  result
without the judgment should be nullified and become extinct.
26.   The case at hand constrains us  to  say  that  a  trial  Judge  should
remember that he has immense responsibility as  he  has  a  lawful  duty  to
record the evidence in the prescribed manner keeping  in  mind  the  command
postulated  in              Section  309  of  the  CrPC  and  pronounce  the
judgment as provided under the Code. A Judge in charge of the trial  has  to
be extremely diligent so that no dent is created in the  trial  and  in  its
eventual conclusion. Mistakes made or errors committed are to  be  rectified
by the appellate court in exercise  of  “error  jurisdiction”.   That  is  a
different matter. But, when a situation like the present one  crops  up,  it
causes agony, an unbearable one, to the cause of justice  and  hits  like  a
lightning in a cloudless sky.  It hurts the justice dispensation system  and
no one, and we mean no one, has any right  to  do  so.  The  High  Court  by
rectifying the grave  error  has  acted  in  furtherance  of  the  cause  of
justice.  The accused persons might have felt  delighted  in  acquittal  and
affected by the order of rehearing, but they should bear in mind  that  they
are not the lone receivers of justice.  There  are  victims  of  the  crime.
Law serves both and justice looks at them equally.   It  does  not  tolerate
that the grievance of the victim should be comatosed in this manner.
27.   Consequently, appeals are dismissed.  The  trial  court  to  whom  the
cases have been transferred is directed to proceed in accordance with law.


New Delhi;                              .............................J.
January  06, 2017                               [Amitava Roy]
[1]    (2002) 1 SCC 319
[2]    (2002) 8 SCC 400
[3]    (2003) 6 SCC 675
[4]    (2010) 2 SCC 398
[5]    (1981) 1 SCC 500
[6]    AIR 1962 SC 1208
[7]    AIR 1960 Mad 507
[8]    (1984) 1 SCC 596
[9]    (1997) 5 SCC 76
[10]   (1995) 4 SCC 392
[11]   (1988) 2 SCC 602

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