Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 32-33 OF 2017
(@ S.L.P. (Crl.) Nos. 7694-7695 of 2016)
Ajay Singh and Anr and Etc. …Appellant(s)
Versus
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
disposal.
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:-
“28.1.2008:
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
Room.”
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
follows:-
“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
judgment.
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
power.
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
dispatch.”
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.
.............................J.
[Dipak
Misra]
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
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 32-33 OF 2017
(@ S.L.P. (Crl.) Nos. 7694-7695 of 2016)
Ajay Singh and Anr and Etc. …Appellant(s)
Versus
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
disposal.
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:-
“28.1.2008:
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
Room.”
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
follows:-
“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
judgment.
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
power.
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
dispatch.”
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.
.............................J.
[Dipak
Misra]
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
