published in http://judis.nic.in/supremecourt/imgst.aspx?filename=40840
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 154 OF 2013
Selvi J. Jayalalithaa & Ors.
…Petitioners
Versus
State of Karnataka & Ors. …Respondents
WITH
WRIT PETITION (CRIMINAL) NO. 166 OF 2013
1 JUDGMENT
Dr. B.S. Chauhan, J.
1. The petitioners have challenged
the order dated 10.9.2013 passed
by the Government of Karnataka asking Shri G. Bhavani Singh – respondent no.4, Special Public Prosecutor (hereinafter referred to as ‘SPP’) in a pending prosecution against the petitioners not to appear in the said matter;
the communication dated 14.9.2013 passed by the Chief Justice of High Court of Karnataka at Bangalore by which the Chief Justice has approved the removal of Shri G. Bhavani Singh as
SPP, as well as the consequential order dated 16.9.2013 issued by the State Government removing the respondent no.4 from the post of SPP.
2. A prosecution was launched against the petitioners for having assets disproportionate to their known income in the year 1996-1997 in the State of Tamil Nadu.
Thiru. K. Anbazhagan (respondent no. 5)
is a political rival of the petitioner no.1, who is and has been the
Chief Minister of Tamil Nadu on a number of occasions. The petitioners
approached this Court on 18.11.2003 for transferring the petitioners’
trial to the neighbouring State of Karnataka in the interest of
justice, on the ground that a fair trial was not possible in the State
of Tamil Nadu. While transferring the matters to the State of
Karnataka, this Court for appointment of SPP issued the following
directions:
“The State of Karnataka in consultation with the Chief Justice
of High Court of Karnataka shall appoint a senior lawyer having
experience in criminal trials as public prosecutor to conduct
these cases. The public prosecutor so appointed shall be
entitled to assistance of another lawyer of his choice. The
fees and all other expenses of the Public Prosecutor and the
Assistant shall be paid by the State of Karnataka who will
thereafter be entitled to get the same reimbursed from the State
of Tamil Nadu.” (Emphasis added)
3. On 19.2.2005, the Government of Karnataka, after consultation
with the Chief Justice of the High Court of Karnataka, appointed Shri
B.V. Acharya, a former Advocate General, as SPP to conduct the
prosecution. On 12.8.2012, Shri Acharya expressed his inability to
continue as SPP. The Government of Karnataka accepted his resignation
in January, 2013 and discharged him from the case.
4. The Government of Karnataka then initiated the process for
appointment of a new SPP and in accordance with the directions of this
Court, submitted names of four Advocates to the High Court for
consideration by the Chief Justice.
5. The Acting Chief Justice of Karnataka High Court on 29.1.2013
recommended the name of Shri G. Bhavani Singh, respondent No.4 for
appointment though his name was not submitted by the Government of
Karnataka. The Government of Karnataka accepted the same and issued a
Notification appointing Shri G. Bhavani Singh as SPP. After issuance
of the notification dated 2.2.2013, Shri G. Bhavani Singh started
working and 99 defence witnesses were examined and 384 defence
exhibits were marked between 28.2.2013 and 29.7.2013. The defence
commenced arguments on 2.8.2013 and concluded the same. However, it
was on 13.8.2013 that respondent no.5 filed an application under
Section 301(2) Cr.P.C. The learned Special Judge permitted respondent
no.5 vide order dated 21.8.2013 to file Memo of Arguments and to
render such assistance to the SPP as he may require. The respondent
no.5 filed two applications on 23.8.2013 before the trial court, one
under Section 309 Cr.P.C. seeking adjournment by 4 weeks and another
under Section 311 Cr.P.C. to recall PW.259, the Investigating Officer
(whose examination was over on 24.2.2003) and to examine him as a
court witness.
6. On 26.8.2013, the Government of Karnataka issued a Notification
withdrawing the appointment of respondent no.4 as SPP without
assigning any reason and without consulting the Chief Justice of
Karnataka High Court.
7. The petitioners, apprehending delay in the trial approached
this Court challenging the removal of respondent no.4 as SPP by filing
a Writ Petition (Criminal) No. 145 of 2013 under Article 32 of the
Constitution of India (hereinafter referred to as the ‘Constitution’).
This Court issued notice to the respondents on 30.8.2013. On
6.9.2013, Mr. G.E. Vahanvati, learned Attorney General appeared for
the State of Karnataka and informed the court that the Notification
dated 26.8.2013 would be withdrawn with a view to consult the Chief
Justice of the Karnataka High Court. In view thereof, the afore-
stated writ petition was dismissed as having become infructuous.
8. The State Government withdrew the Notification dated 26.8.2013
vide Notification dated 10.9.2013 and simultaneously, vide letter of
the same date, asked Shri G. Bhavani Singh, respondent no.4 not to
appear in the matter before the Special Judge. The petitioners then
filed the present Writ Petition (Criminal) No. 154 of 2013 challenging
the said letter written to the respondent no.4 and to direct the
learned Special Judge to conclude the trial. On 13.9.2013, this Court
issued notice returnable in ten days and stayed the operation of the
letter being No. LAW 149 LCE 2012 dated 10.9.2013 passed by respondent
Nos.1-2.
9. While the afore-stated writ petition was pending in this Court,
the Government of Karnataka consulted the Chief Justice of the
Karnataka High Court for withdrawing the appointment of respondent
no.4 as SPP. The Chief Justice concurred with the view of the State
Government, vide communication dated 14.9.2013 and thus, the
appointment of Shri G. Bhavani Singh stood withdrawn by the Government
of Karnataka vide Notification No.LAW 149 LCE 2012 dated 16.9.2013.
10. Aggrieved, the petitioners have filed Writ Petition (Criminal)
No.166 of 2013, challenging the said orders dated 14.9.2013 and
16.9.2013.
11. Both petitions have been heard together.
Shri Shekhar Naphade and Shri U.U. Lalit, learned senior
counsel appearing for the petitioners submitted that it is settled law
that an accused has a right to a speedy trial, as guaranteed under
Article 21 of the Constitution; the order withdrawing the appointment
of respondent no.4 as SPP is a calculated step to protract the trial
in view of impending retirement of the learned Special Judge on 30th
September, 2013; and any Judge who takes over the matter would require
considerable time to get familiar with the lengthy record as the
recorded evidence oral and documentary run into 34000 pages; the trial
has almost been completed since the entire evidence of the prosecution
and the defence has been recorded and statements of the accused
persons (petitioners) under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) have also been
recorded; the withdrawal of appointment of SPP after six months of his
functioning is motivated by malafides with a view to protract the
trial as there has been a change of government in the State of
Karnataka; the present case being a warrant case under the Prevention
of Corruption Act, 1988 (hereinafter referred to as the ‘Act 1988’),
final submissions of the defence already stood concluded. Eventually,
according to the learned counsel, the scheduled conclusion of the
trial has become impossible and the petitioners face the prospect of
remaining under trial for a long time, which would be to the political
advantage of their rivals in the ensuing elections. In view thereof,
this court must quash the order of withdrawal/revocation of the
appointment of respondent no.4 as SPP and to also further extend the
duration of tenure of the learned Special Judge till the conclusion of
this trial.
12. Shri G.E. Vahanvati, the learned Attorney General submitted that
the act of revoking the appointment is substantially under Section 21
of the General Clauses Act and has been made in the like manner to the
appointment i.e. after consultation with the Chief Justice of the
Karnataka High Court as, contemplated by this Court. The main reason
for revocation of the appointment, according to the learned Attorney
General, was that the appointment itself was not made after due
consultation since the name of Shri G. Bhavani Singh did not find
place in any of the four names submitted by the Government of
Karnataka to the then learned Acting Chief Justice of Karnataka High
Court for appointment as SPP. In an action contrary to the true
purpose of consultation, the Acting Chief Justice recommended the name
of Shri G. Bhavani Singh on his own, thus preventing any consultation
on the name. Further, in exercise of its extraordinary power under
Article 142 of the Constitution, this court cannot force the
Government of Karnataka to allow the Special Judge to continue in
service after reaching the age of superannuation on 30.9.2013.
Therefore, the petitions lack merit and are liable to be dismissed.
13. Shri Vikas Singh, learned senior counsel appearing for the
respondent no.5 has submitted that the petitioners themselves have
been adopting dilatory tactics in the trial and it is only in the
recent past that they have become very punctual and had been forcing
the learned Special Judge to proceed with the matter in haste. The
trial has been conducted in an unwarranted manner and an example of
the same is that the arguments of the defence had been entertained by
the learned Special Judge before the arguments of the prosecution.
Mr. G. Bhavani Singh had been appointed on the suggestion of learned
Acting Chief Justice of the High Court of Karnataka, though his name
had not been there in the panel sent by the State Government. Thus, in
the facts and circumstances of the case, no interference is warranted
and petitions are liable to be dismissed.
14. We have heard learned counsel for all the parties and perused
the record produced before us by the Karnataka High Court.
15. The reason put forth by the Government of Karnataka for removing
Shri G. Bhavani Singh as SPP appears to be rather unusual. It may be
true that the name of Shri G. Bhavani Singh was not in the list of
four names submitted by the Government of Karnataka to the then Acting
Chief Justice of the High Court and the name originated from the
Acting Chief Justice, prior to making of appointment of SPP by the
Government of Karnataka; but it is equally true that the appointment
was made by the Government without questioning the ability or
suitability of the incumbent nor the government raised any issue in
respect of the manner/issue of consultation. On the contrary, upon
receiving the recommendation, the Government proceeded to appoint Shri
G. Bhavani Singh by issuing a Notification without any demur. Apart
from this the appointment continued un-objected for almost seven
months.
16. Even before us, no issue has been raised by the respondents in
respect of the eligibility, suitability or credibility of the
respondent no.4 as a SPP.
In the letter dated 29.1.2013 communicated by the learned
Registrar General of the High Court of Karnataka to the State
Government, the experience of Shri Bhavani Singh has been recited as
under:
“Sri G. Bhavani Singh, who is presently working as State
Public Prosecutor-II has standing experience of 38 years at the
Bar exclusively on criminal side, he has conducted the cases
before the Trial Court as a defence counsel and he has served as
a Government Pleader from 1977 for a period of three years in
the High Court of Karnataka and as Additional Public Prosecutor
for a period of 3 years and currently for the past 8 years
working as State Public Prosecutor-II in the High Court of
Karnataka.”
17. Whenever consultation is mandated by law, it necessarily
involves two authorities; one, on whom a duty is cast to consult and
the other who has the corresponding right(s) to be consulted. The
grievance that there has been no consultation or insufficient
consultation is normally raised by the authority who has a right to be
consulted, in this case the Chief Justice. It is not legitimate for
the party who has a duty to consult and who has failed in that duty,
to make a grievance that there has been no consultation. This is
exactly what has happened in the present case. If the Government
found the name of Shri G. Bhavani Singh, which was sent by the Acting
Chief Justice, not acceptable on any ground, it was duty bound to
refer the name back to the Acting Chief Justice along with their views
and suggestions, which was not done by them. On the contrary, they
proceeded to appoint Shri G. Bhavani Singh as SPP without demur, who
had already been a Public Prosecutor for several years. There is
nothing on record to indicate that the Government of Karnataka had
been forced by anyone to make the said appointment. The Government
thus voluntarily acquiesced in the process and is now not entitled to
raise this grievance. The grievance is thus baseless and does not
carry any conviction.
In the facts and circumstances of the case, the judgments
relied upon by the Hon’ble Chief Justice of Karnataka High Court in
his communication, concurring with the suggestion made by the
Government of Karnataka to withdraw the appointment of respondent no.4
as SPP, particularly in Chandramouleshwar Prasad v. The Patna High
Court & Ors., AIR 1970 SC 370; Union of India v. Sankalchand Himatlal
Sheth & Anr., AIR 1977 SC 2328; State of Gujarat v. Gujarat Revenue
Tribunal Bar Association, AIR 2013 SC 107; and State of Gujarat & Anr.
v. Justice R.A. Mehta (Retired) & Ors., (2013) 3 SCC 1, have no
application.
18. We may record that though some criticism was made of the letter
dated 14.9.2013 of the Chief Justice of Karnataka approving the
revocation of the appointment of Shri G. Bhavani Singh and certain
observations therein, we are not inclined to go into the merits,
demerits or validity of the letter. In the first place, the said
letter is not an order that may affect any of the rights of the
petitioners. It is merely an approval given in the course of
consultation for the removal of Shri G. Bhavani Singh who has not
questioned his removal. The petitioners have challenged the validity
of the action of the State Government removing Shri G. Bhavani Singh
on the ground that fundamental rights under Article 21 for speedy
trial have been breached thereby. In the circumstances, it is not
necessary to pronounce on the correctness or otherwise of the contents
of the letter written by Hon’ble the Chief Justice.
19. Mr. Vikas Singh, learned senior counsel appearing for respondent
No. 5, referred to the entire proceedings after the case was
transferred to the State of Karnataka and submitted that the
prosecution has been proceeding in a most undesirable manner,
particularly, after the appointment of Shri G. Bhavani Singh as SPP.
According to the learned counsel, the Investigating Officer has been
permitted to be examined as a defence witness and the Special Judge
has proceeded to pass certain orders even in the absence of SPP.
These allegations have been denied as factually incorrect by Mr.
Naphade, learned senior counsel appearing for the petitioners. We
are, however, not inclined to go into all these submissions since they
would form a subject of entirely different enquiry and the allegedly
illegal proceedings and orders if any, can be challenged separately.
It was also argued by Mr. Vikas Singh that the Special Judge has
wrongly permitted the defence to commence their arguments before the
arguments of the prosecution. On the other hand, according to the
petitioners, this is entirely permissible in view of the fact that
this is a prosecution under Section 13 of the Act 1988 and being so,
any party including the defence is entitled to begin its submissions
on the close of its evidence by virtue of Section 314 Cr.P.C., which
applies to warrant cases. Further, by virtue of Section 5 of the Act
1988, cases under this Act are liable to be tried as warrant cases and
there is therefore, no illegality in this regard.
The respondents’ contention that the prosecution alone must
begin their arguments is based on Section 234 Cr.P.C., which is not
applicable to the present trial at all. Having regard to the scope of
the present dispute, we do not consider it necessary or appropriate to
decide this question either.
20. In the instant case, as disclosed during the course of
arguments, there has been a change of the political party in power in
May 2013 and thus, the order of the State Government is alleged to be
politically motivated. In our opinion, though there is an undoubted
power with the Government to withdraw or revoke the appointment within
Section 21 of the General Clauses Act, but that exercise of power
appears to be vitiated in the present case by malafides in law
inasmuch as it is apparent on record that the switch-over of
government in between has resulted in a sudden change of opinion that
is abrupt for no discernable legally sustainable reason. The sharp
transitional decision was an act of clear unwarranted indiscretion
actuated by an intention that does not appear to be founded on good
faith.
21. The record of the case reveals that the learned Special Judge
had started hearing of the present case on 20.11.2012. He had recorded
the statements of the accused in December 2012 and January 2013 under
Section 313 Cr.P.C. The learned Judge examined 99 defence witnesses
and 384 defence exhibits were marked before him. The defence concluded
its argument before the learned Special Judge and SPP commenced the
final arguments on 23.8.2013. He was interrupted abruptly as on
26.8.2013, the SPP was asked not to continue with the work. The
evidence led in the case is very bulky as it runs into 34000 pages. In
case a new Judge starts hearing the matter, he is bound to take a long
time to understand the factual and legal niceties involved in the
case. Accordingly, we have no hesitation in holding that the
Notification purporting to revoke the appointment of Shri G. Bhavani
Singh as SPP is liable to be struck down.
22. In State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., AIR
2011 SC 3470, this Court has observed that the Government has to rise
above the nexus of vested interests and nepotism and eschew window-
dressing. The principles of governance have to be tested on the
touchstone of justice, equity and fair play. A decision may look
legitimate but as a matter of fact, if the reasons are not based on
values but to achieve popular accolade, the decision cannot be allowed
to operate. Therefore, unless it is found that the act done by the
authority earlier in existence is either contrary to the statutory
provisions or unreasonable, or is against public interest, the State
should not change its stand merely because the other political party
has come into power. “Political agenda of an individual or a political
party should not be subversive of rule of law.”
(See also: M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors., AIR
1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India & Anr.
etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All India
Manufacturers Organization & Ors., AIR 2006 SC 1846; and A.P. Dairy
Development Corporation Federation v. B. Narasimha Reddy & Ors., AIR
2011 SC 3298).
23. In Smt. S.R. Venkataraman v. Union of India & Anr., AIR 1979 SC
49, this Court explained the concept of legal malice observing that
malice in its legal sense means malice such as may be assumed from the
doing of a wrongful act intentionally but without just cause or
excuse, or for want of reasonable or probable cause.
24. In Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR
2012 SC 1339, while dealing with the issue, this Court held:
"37….. Legal malice" or "malice in law" means something done
without lawful excuse. It is a deliberate act in disregard to
the rights of others. It is an act which is taken with an
oblique or indirect object. It is an act done wrongfully and
wilfully without reasonable or probable cause, and not
necessarily an act done from ill-feeling and spite. Mala fide
exercise of power does not imply any moral turpitude. It means
exercise of statutory power for "purposes foreign to those for
which it is in law intended." It means conscious violation of
the law to the prejudice of another, a depraved inclination on
the part of the authority to disregard the rights of others,
where intent is manifested by its injurious acts. Passing an
order for unauthorized purpose constitutes malice in law.”
(See also: Kalabharati Advertising v. Hemant Vimalnath Narichania &
Ors., AIR 2010 SC 3745).
25. Thus, it is trite law that if discretionary power has been
exercised for an unauthorised purpose, it is generally immaterial
whether its repository was acting in good faith or in bad faith and
the order becomes vulnerable and liable to be set aside.
26. Fair trial is the main object of criminal procedure and such
fairness should not be hampered or threatened in any manner. Fair
trial entails the interests of the accused, the victim and of the
society. Thus, fair trial must be accorded to every accused in the
spirit of the right to life and personal liberty and the accused must
get a free and fair, just and reasonable trial on the charge imputed
in a criminal case. Any breach or violation of public rights and
duties adversely affects the community as a whole and it becomes
harmful to the society in general. In all circumstances, the courts
have a duty to maintain public confidence in the administration of
justice and such duty is to vindicate and uphold the ‘majesty of the
law’ and the courts cannot turn a blind eye to vexatious or oppressive
conduct that occurs in relation to criminal proceedings.
Denial of a fair trial is as much injustice to the accused as is
to the victim and the society. It necessarily requires a trial before
an impartial judge, a fair prosecutor and an atmosphere of judicial
calm. Since the object of the trial is to mete out justice and to
convict the guilty and protect the innocent, the trial should be a
search for the truth and not a bout over technicalities and must be
conducted under such rules as will protect the innocent and punish the
guilty. Justice should not only be done but should be seem to have
been done. Therefore, free and fair trial is a sine qua non of Article
21 of the Constitution. Right to get a fair trial is not only a basic
fundamental right but a human right also. Therefore, any hindrance in
a fair trial could be violative of Article 14 of the Constitution.
“No trial can be allowed to prolong indefinitely due to the
lethargy of the prosecuting agency or the State machinery and that is
the raison d’etre in prescribing the time frame” for conclusion of the
trial.
Article 12 of the Universal Declaration of Human Rights provides
for the right to a fair trial what is enshrined in Article 21 of our
Constitution. Therefore, fair trial is the heart of criminal
jurisprudence and, in a way, an important facet of a democratic polity
and is governed by rule of law. Denial of fair trial is crucifixion of
human rights. (Vide: Smt. Triveniben v. State of Gujarat, AIR 1989 SC
1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701; Raj Deo
Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka Prasad Agarwal
(D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR 2003 SC 2686; K.
Anbazhagan v. Supdt. of Police, AIR 2004 SC 524; Zahira Habibullah
Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367; Noor Aga v. State of
Punjab & Anr., (2008) 16 SCC 417; Capt. Amarinder Singh v. Parkash
Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v.
State (Govt. of NCT of Delhi), AIR 2012 SC 750; Sudevanand v. State
through CBI, (2012) 3 SCC 387; Rattiram & Ors. v. State of M.P.,
(2012) 4 SCC 516; and Natasha Singh v. CBI, (2013) 5 SCC 741).
27. It was lastly contended by Mr. Naphade, learned senior counsel
appearing for the petitioners that this would be a fit case for
exercise of powers under Article 142 of the Constitution for a
direction to the competent authority to extend the tenure of the
Special Judge, who is due to reach the age of retirement on 30th
September, 2013.
28. The learned Attorney General, however, submitted that this Court
could not exercise its powers under Article 142 of the Constitution
in the present case since such an exercise would be contrary to laws
under which each Judge must retire on reaching the age of
superannuation. In order to fortify his submission, learned Attorney
General placed reliance on the judgment of this court in A.B.
Bhaskara Rao v. Inspector of Police, CBI Vishakapatnam, (2011) 10 SCC
259, wherein this court held that the powers under Article 142 of the
Constitution cannot be exercised by this court in contravention of
any statutory provisions, though such powers remain unfettered and
create an independent jurisdiction to pass any order in pubic
interest to do complete justice. However, such exercise of
jurisdiction should not be contrary to any express provision of law.
The powers under Article 142 of the Constitution stand on a
wider footing than ordinary inherent powers of the court to prevent
injustice. The constitutional provision has been couched in a very
wide compass that it prevents “clogging or obstruction of the stream
of justice.” However, such powers are used in consonance with the
statutory provisions.
(See also: Teri Oat Estates (P) Ltd. v. UT, Chandigarh & Ors., (2004)
2 SCC 130; Manish Goel v. Rohini Goel, AIR 2010 SC 1099; and State of
Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537).
29. We find force in the submissions advanced by the learned
Attorney General that this Court generally should not pass any order
in exercise of its extraordinary power under Article 142 of the
Constitution to do complete justice if such order violates any
statutory provisions. We do not intend to say that it would be
illegal to extend the term of the special judge, but that it is a
matter within the jurisdiction of the State in accordance with the
relevant law.
There is yet an uncontroverted legal principle that when
the statute provides for a particular procedure, the authority has to
follow the same and cannot be permitted to act in contravention of
the same. In other words, where a statute requires to do a certain
thing in a certain way, the thing must be done in that way and not
contrary to it at all. Other methods or mode of performance are
impliedly and necessarily forbidden. The aforesaid settled legal
proposition is based on a legal maxim “Expressio unius est exclusio
alterius”, meaning thereby that if a statute provides for a thing to
be done in a particular way, then it has to be done in that manner
and in no other manner and following any other course is not
permissible.
In State of Uttar Pradesh v. Singhara Singh & Ors., AIR
1964 SC 358, this court held as under:
“8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is
well recognised and is founded on sound principle. Its result is
that if a statute has conferred a power to do an act and has
laid down the method in which that power has to be exercised, it
necessarily prohibits the doing of the act in any other manner
than that which has been prescribed. The principle behind the
rule is that if this were not so, the statutory provision might
as well not have been enacted.”
(See also: Accountant General, State of Madhya Pradesh v. S.K. Dubey &
Anr., (2012) 4 SCC 578)
30. We have examined the scheme of the statutory provisions in this
regard.
The Karnataka Civil Services (General Recruitment) Rules, 1977
authorise the State Government to appoint a retired government servant on contractual basis after meeting certain formalities, for a specific period as may be necessary. So far as judicial officers are concerned, their services are governed by the Karnataka Judicial Services (Recruitment) Rules, 1983 and Rule 3(2) thereof provides the application of the rules framed under any law or proviso under Article 309 of the Constitution to judicial officers, though subject to the provisions of Articles 233, 234 and 235 of the Constitution.
The Rules of 1983 stand repealed by the Karnataka Judicial Service (Recruitment) Rules 2004 (hereinafter referred to as the ‘Rules 2004’) and Rule 11(2) thereof reads as under:
“11(2). All rules regulating the conditions of service of the
members of the State Civil Services made from time to time under any law or the proviso to Article 309 of the Constitution of India shall, subject to Articles 233, 234 and 235 be applicable to the Civil Judges (Junior Division), Civil Judges (Senior Division) and the District Judges recruited and appointed under these rules.”
Thus, it is evident that the State Government is competent to appoint the learned Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court as required under Article 235 of the Constitution. Further, in our humble opinion, such a course must be adopted in the manner prescribed under the Rules 2004 and in view thereof, the matter requires to be considered by the State Government with the consultation of the High Court.
31. Therefore, in view of the aforestated facts, we refer the matter to the High Court of Karnataka to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of the learned Special Judge. Considering the urgency of the matter, we request the High Court of Karnataka to take a decision in this regard as early as possible.
32. In view of the above, we are of the considered opinion that the order of removal of Shri G. Bhavani Singh-respondent no.4 is a product of mala fides and the impugned order is not sustainable in the eyes of law as such the same is hereby quashed.
33. With the aforesaid observations/directions, the writ petitions stand disposed of.
.........................………………..J.
(DR.
B.S. CHAUHAN)
.............………………………J.
(S.A. BOBDE)
New Delhi,
September 30, 2013
?
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL ORIGINAL JURISDICTION
WRIT PETITION (CRIMINAL) NO. 154 OF 2013
Selvi J. Jayalalithaa & Ors.
…Petitioners
Versus
State of Karnataka & Ors. …Respondents
WITH
WRIT PETITION (CRIMINAL) NO. 166 OF 2013
1 JUDGMENT
Dr. B.S. Chauhan, J.
1. The petitioners have challenged
the order dated 10.9.2013 passed
by the Government of Karnataka asking Shri G. Bhavani Singh – respondent no.4, Special Public Prosecutor (hereinafter referred to as ‘SPP’) in a pending prosecution against the petitioners not to appear in the said matter;
the communication dated 14.9.2013 passed by the Chief Justice of High Court of Karnataka at Bangalore by which the Chief Justice has approved the removal of Shri G. Bhavani Singh as
SPP, as well as the consequential order dated 16.9.2013 issued by the State Government removing the respondent no.4 from the post of SPP.
2. A prosecution was launched against the petitioners for having assets disproportionate to their known income in the year 1996-1997 in the State of Tamil Nadu.
Thiru. K. Anbazhagan (respondent no. 5)
is a political rival of the petitioner no.1, who is and has been the
Chief Minister of Tamil Nadu on a number of occasions. The petitioners
approached this Court on 18.11.2003 for transferring the petitioners’
trial to the neighbouring State of Karnataka in the interest of
justice, on the ground that a fair trial was not possible in the State
of Tamil Nadu. While transferring the matters to the State of
Karnataka, this Court for appointment of SPP issued the following
directions:
“The State of Karnataka in consultation with the Chief Justice
of High Court of Karnataka shall appoint a senior lawyer having
experience in criminal trials as public prosecutor to conduct
these cases. The public prosecutor so appointed shall be
entitled to assistance of another lawyer of his choice. The
fees and all other expenses of the Public Prosecutor and the
Assistant shall be paid by the State of Karnataka who will
thereafter be entitled to get the same reimbursed from the State
of Tamil Nadu.” (Emphasis added)
3. On 19.2.2005, the Government of Karnataka, after consultation
with the Chief Justice of the High Court of Karnataka, appointed Shri
B.V. Acharya, a former Advocate General, as SPP to conduct the
prosecution. On 12.8.2012, Shri Acharya expressed his inability to
continue as SPP. The Government of Karnataka accepted his resignation
in January, 2013 and discharged him from the case.
4. The Government of Karnataka then initiated the process for
appointment of a new SPP and in accordance with the directions of this
Court, submitted names of four Advocates to the High Court for
consideration by the Chief Justice.
5. The Acting Chief Justice of Karnataka High Court on 29.1.2013
recommended the name of Shri G. Bhavani Singh, respondent No.4 for
appointment though his name was not submitted by the Government of
Karnataka. The Government of Karnataka accepted the same and issued a
Notification appointing Shri G. Bhavani Singh as SPP. After issuance
of the notification dated 2.2.2013, Shri G. Bhavani Singh started
working and 99 defence witnesses were examined and 384 defence
exhibits were marked between 28.2.2013 and 29.7.2013. The defence
commenced arguments on 2.8.2013 and concluded the same. However, it
was on 13.8.2013 that respondent no.5 filed an application under
Section 301(2) Cr.P.C. The learned Special Judge permitted respondent
no.5 vide order dated 21.8.2013 to file Memo of Arguments and to
render such assistance to the SPP as he may require. The respondent
no.5 filed two applications on 23.8.2013 before the trial court, one
under Section 309 Cr.P.C. seeking adjournment by 4 weeks and another
under Section 311 Cr.P.C. to recall PW.259, the Investigating Officer
(whose examination was over on 24.2.2003) and to examine him as a
court witness.
6. On 26.8.2013, the Government of Karnataka issued a Notification
withdrawing the appointment of respondent no.4 as SPP without
assigning any reason and without consulting the Chief Justice of
Karnataka High Court.
7. The petitioners, apprehending delay in the trial approached
this Court challenging the removal of respondent no.4 as SPP by filing
a Writ Petition (Criminal) No. 145 of 2013 under Article 32 of the
Constitution of India (hereinafter referred to as the ‘Constitution’).
This Court issued notice to the respondents on 30.8.2013. On
6.9.2013, Mr. G.E. Vahanvati, learned Attorney General appeared for
the State of Karnataka and informed the court that the Notification
dated 26.8.2013 would be withdrawn with a view to consult the Chief
Justice of the Karnataka High Court. In view thereof, the afore-
stated writ petition was dismissed as having become infructuous.
8. The State Government withdrew the Notification dated 26.8.2013
vide Notification dated 10.9.2013 and simultaneously, vide letter of
the same date, asked Shri G. Bhavani Singh, respondent no.4 not to
appear in the matter before the Special Judge. The petitioners then
filed the present Writ Petition (Criminal) No. 154 of 2013 challenging
the said letter written to the respondent no.4 and to direct the
learned Special Judge to conclude the trial. On 13.9.2013, this Court
issued notice returnable in ten days and stayed the operation of the
letter being No. LAW 149 LCE 2012 dated 10.9.2013 passed by respondent
Nos.1-2.
9. While the afore-stated writ petition was pending in this Court,
the Government of Karnataka consulted the Chief Justice of the
Karnataka High Court for withdrawing the appointment of respondent
no.4 as SPP. The Chief Justice concurred with the view of the State
Government, vide communication dated 14.9.2013 and thus, the
appointment of Shri G. Bhavani Singh stood withdrawn by the Government
of Karnataka vide Notification No.LAW 149 LCE 2012 dated 16.9.2013.
10. Aggrieved, the petitioners have filed Writ Petition (Criminal)
No.166 of 2013, challenging the said orders dated 14.9.2013 and
16.9.2013.
11. Both petitions have been heard together.
Shri Shekhar Naphade and Shri U.U. Lalit, learned senior
counsel appearing for the petitioners submitted that it is settled law
that an accused has a right to a speedy trial, as guaranteed under
Article 21 of the Constitution; the order withdrawing the appointment
of respondent no.4 as SPP is a calculated step to protract the trial
in view of impending retirement of the learned Special Judge on 30th
September, 2013; and any Judge who takes over the matter would require
considerable time to get familiar with the lengthy record as the
recorded evidence oral and documentary run into 34000 pages; the trial
has almost been completed since the entire evidence of the prosecution
and the defence has been recorded and statements of the accused
persons (petitioners) under Section 313 of the Code of Criminal
Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) have also been
recorded; the withdrawal of appointment of SPP after six months of his
functioning is motivated by malafides with a view to protract the
trial as there has been a change of government in the State of
Karnataka; the present case being a warrant case under the Prevention
of Corruption Act, 1988 (hereinafter referred to as the ‘Act 1988’),
final submissions of the defence already stood concluded. Eventually,
according to the learned counsel, the scheduled conclusion of the
trial has become impossible and the petitioners face the prospect of
remaining under trial for a long time, which would be to the political
advantage of their rivals in the ensuing elections. In view thereof,
this court must quash the order of withdrawal/revocation of the
appointment of respondent no.4 as SPP and to also further extend the
duration of tenure of the learned Special Judge till the conclusion of
this trial.
12. Shri G.E. Vahanvati, the learned Attorney General submitted that
the act of revoking the appointment is substantially under Section 21
of the General Clauses Act and has been made in the like manner to the
appointment i.e. after consultation with the Chief Justice of the
Karnataka High Court as, contemplated by this Court. The main reason
for revocation of the appointment, according to the learned Attorney
General, was that the appointment itself was not made after due
consultation since the name of Shri G. Bhavani Singh did not find
place in any of the four names submitted by the Government of
Karnataka to the then learned Acting Chief Justice of Karnataka High
Court for appointment as SPP. In an action contrary to the true
purpose of consultation, the Acting Chief Justice recommended the name
of Shri G. Bhavani Singh on his own, thus preventing any consultation
on the name. Further, in exercise of its extraordinary power under
Article 142 of the Constitution, this court cannot force the
Government of Karnataka to allow the Special Judge to continue in
service after reaching the age of superannuation on 30.9.2013.
Therefore, the petitions lack merit and are liable to be dismissed.
13. Shri Vikas Singh, learned senior counsel appearing for the
respondent no.5 has submitted that the petitioners themselves have
been adopting dilatory tactics in the trial and it is only in the
recent past that they have become very punctual and had been forcing
the learned Special Judge to proceed with the matter in haste. The
trial has been conducted in an unwarranted manner and an example of
the same is that the arguments of the defence had been entertained by
the learned Special Judge before the arguments of the prosecution.
Mr. G. Bhavani Singh had been appointed on the suggestion of learned
Acting Chief Justice of the High Court of Karnataka, though his name
had not been there in the panel sent by the State Government. Thus, in
the facts and circumstances of the case, no interference is warranted
and petitions are liable to be dismissed.
14. We have heard learned counsel for all the parties and perused
the record produced before us by the Karnataka High Court.
15. The reason put forth by the Government of Karnataka for removing
Shri G. Bhavani Singh as SPP appears to be rather unusual. It may be
true that the name of Shri G. Bhavani Singh was not in the list of
four names submitted by the Government of Karnataka to the then Acting
Chief Justice of the High Court and the name originated from the
Acting Chief Justice, prior to making of appointment of SPP by the
Government of Karnataka; but it is equally true that the appointment
was made by the Government without questioning the ability or
suitability of the incumbent nor the government raised any issue in
respect of the manner/issue of consultation. On the contrary, upon
receiving the recommendation, the Government proceeded to appoint Shri
G. Bhavani Singh by issuing a Notification without any demur. Apart
from this the appointment continued un-objected for almost seven
months.
16. Even before us, no issue has been raised by the respondents in
respect of the eligibility, suitability or credibility of the
respondent no.4 as a SPP.
In the letter dated 29.1.2013 communicated by the learned
Registrar General of the High Court of Karnataka to the State
Government, the experience of Shri Bhavani Singh has been recited as
under:
“Sri G. Bhavani Singh, who is presently working as State
Public Prosecutor-II has standing experience of 38 years at the
Bar exclusively on criminal side, he has conducted the cases
before the Trial Court as a defence counsel and he has served as
a Government Pleader from 1977 for a period of three years in
the High Court of Karnataka and as Additional Public Prosecutor
for a period of 3 years and currently for the past 8 years
working as State Public Prosecutor-II in the High Court of
Karnataka.”
17. Whenever consultation is mandated by law, it necessarily
involves two authorities; one, on whom a duty is cast to consult and
the other who has the corresponding right(s) to be consulted. The
grievance that there has been no consultation or insufficient
consultation is normally raised by the authority who has a right to be
consulted, in this case the Chief Justice. It is not legitimate for
the party who has a duty to consult and who has failed in that duty,
to make a grievance that there has been no consultation. This is
exactly what has happened in the present case. If the Government
found the name of Shri G. Bhavani Singh, which was sent by the Acting
Chief Justice, not acceptable on any ground, it was duty bound to
refer the name back to the Acting Chief Justice along with their views
and suggestions, which was not done by them. On the contrary, they
proceeded to appoint Shri G. Bhavani Singh as SPP without demur, who
had already been a Public Prosecutor for several years. There is
nothing on record to indicate that the Government of Karnataka had
been forced by anyone to make the said appointment. The Government
thus voluntarily acquiesced in the process and is now not entitled to
raise this grievance. The grievance is thus baseless and does not
carry any conviction.
In the facts and circumstances of the case, the judgments
relied upon by the Hon’ble Chief Justice of Karnataka High Court in
his communication, concurring with the suggestion made by the
Government of Karnataka to withdraw the appointment of respondent no.4
as SPP, particularly in Chandramouleshwar Prasad v. The Patna High
Court & Ors., AIR 1970 SC 370; Union of India v. Sankalchand Himatlal
Sheth & Anr., AIR 1977 SC 2328; State of Gujarat v. Gujarat Revenue
Tribunal Bar Association, AIR 2013 SC 107; and State of Gujarat & Anr.
v. Justice R.A. Mehta (Retired) & Ors., (2013) 3 SCC 1, have no
application.
18. We may record that though some criticism was made of the letter
dated 14.9.2013 of the Chief Justice of Karnataka approving the
revocation of the appointment of Shri G. Bhavani Singh and certain
observations therein, we are not inclined to go into the merits,
demerits or validity of the letter. In the first place, the said
letter is not an order that may affect any of the rights of the
petitioners. It is merely an approval given in the course of
consultation for the removal of Shri G. Bhavani Singh who has not
questioned his removal. The petitioners have challenged the validity
of the action of the State Government removing Shri G. Bhavani Singh
on the ground that fundamental rights under Article 21 for speedy
trial have been breached thereby. In the circumstances, it is not
necessary to pronounce on the correctness or otherwise of the contents
of the letter written by Hon’ble the Chief Justice.
19. Mr. Vikas Singh, learned senior counsel appearing for respondent
No. 5, referred to the entire proceedings after the case was
transferred to the State of Karnataka and submitted that the
prosecution has been proceeding in a most undesirable manner,
particularly, after the appointment of Shri G. Bhavani Singh as SPP.
According to the learned counsel, the Investigating Officer has been
permitted to be examined as a defence witness and the Special Judge
has proceeded to pass certain orders even in the absence of SPP.
These allegations have been denied as factually incorrect by Mr.
Naphade, learned senior counsel appearing for the petitioners. We
are, however, not inclined to go into all these submissions since they
would form a subject of entirely different enquiry and the allegedly
illegal proceedings and orders if any, can be challenged separately.
It was also argued by Mr. Vikas Singh that the Special Judge has
wrongly permitted the defence to commence their arguments before the
arguments of the prosecution. On the other hand, according to the
petitioners, this is entirely permissible in view of the fact that
this is a prosecution under Section 13 of the Act 1988 and being so,
any party including the defence is entitled to begin its submissions
on the close of its evidence by virtue of Section 314 Cr.P.C., which
applies to warrant cases. Further, by virtue of Section 5 of the Act
1988, cases under this Act are liable to be tried as warrant cases and
there is therefore, no illegality in this regard.
The respondents’ contention that the prosecution alone must
begin their arguments is based on Section 234 Cr.P.C., which is not
applicable to the present trial at all. Having regard to the scope of
the present dispute, we do not consider it necessary or appropriate to
decide this question either.
20. In the instant case, as disclosed during the course of
arguments, there has been a change of the political party in power in
May 2013 and thus, the order of the State Government is alleged to be
politically motivated. In our opinion, though there is an undoubted
power with the Government to withdraw or revoke the appointment within
Section 21 of the General Clauses Act, but that exercise of power
appears to be vitiated in the present case by malafides in law
inasmuch as it is apparent on record that the switch-over of
government in between has resulted in a sudden change of opinion that
is abrupt for no discernable legally sustainable reason. The sharp
transitional decision was an act of clear unwarranted indiscretion
actuated by an intention that does not appear to be founded on good
faith.
21. The record of the case reveals that the learned Special Judge
had started hearing of the present case on 20.11.2012. He had recorded
the statements of the accused in December 2012 and January 2013 under
Section 313 Cr.P.C. The learned Judge examined 99 defence witnesses
and 384 defence exhibits were marked before him. The defence concluded
its argument before the learned Special Judge and SPP commenced the
final arguments on 23.8.2013. He was interrupted abruptly as on
26.8.2013, the SPP was asked not to continue with the work. The
evidence led in the case is very bulky as it runs into 34000 pages. In
case a new Judge starts hearing the matter, he is bound to take a long
time to understand the factual and legal niceties involved in the
case. Accordingly, we have no hesitation in holding that the
Notification purporting to revoke the appointment of Shri G. Bhavani
Singh as SPP is liable to be struck down.
22. In State of Tamil Nadu & Ors. v. K. Shyam Sunder & Ors., AIR
2011 SC 3470, this Court has observed that the Government has to rise
above the nexus of vested interests and nepotism and eschew window-
dressing. The principles of governance have to be tested on the
touchstone of justice, equity and fair play. A decision may look
legitimate but as a matter of fact, if the reasons are not based on
values but to achieve popular accolade, the decision cannot be allowed
to operate. Therefore, unless it is found that the act done by the
authority earlier in existence is either contrary to the statutory
provisions or unreasonable, or is against public interest, the State
should not change its stand merely because the other political party
has come into power. “Political agenda of an individual or a political
party should not be subversive of rule of law.”
(See also: M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors., AIR
1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India & Anr.
etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All India
Manufacturers Organization & Ors., AIR 2006 SC 1846; and A.P. Dairy
Development Corporation Federation v. B. Narasimha Reddy & Ors., AIR
2011 SC 3298).
23. In Smt. S.R. Venkataraman v. Union of India & Anr., AIR 1979 SC
49, this Court explained the concept of legal malice observing that
malice in its legal sense means malice such as may be assumed from the
doing of a wrongful act intentionally but without just cause or
excuse, or for want of reasonable or probable cause.
24. In Ravi Yashwant Bhoir v. District Collector, Raigad & Ors., AIR
2012 SC 1339, while dealing with the issue, this Court held:
"37….. Legal malice" or "malice in law" means something done
without lawful excuse. It is a deliberate act in disregard to
the rights of others. It is an act which is taken with an
oblique or indirect object. It is an act done wrongfully and
wilfully without reasonable or probable cause, and not
necessarily an act done from ill-feeling and spite. Mala fide
exercise of power does not imply any moral turpitude. It means
exercise of statutory power for "purposes foreign to those for
which it is in law intended." It means conscious violation of
the law to the prejudice of another, a depraved inclination on
the part of the authority to disregard the rights of others,
where intent is manifested by its injurious acts. Passing an
order for unauthorized purpose constitutes malice in law.”
(See also: Kalabharati Advertising v. Hemant Vimalnath Narichania &
Ors., AIR 2010 SC 3745).
25. Thus, it is trite law that if discretionary power has been
exercised for an unauthorised purpose, it is generally immaterial
whether its repository was acting in good faith or in bad faith and
the order becomes vulnerable and liable to be set aside.
26. Fair trial is the main object of criminal procedure and such
fairness should not be hampered or threatened in any manner. Fair
trial entails the interests of the accused, the victim and of the
society. Thus, fair trial must be accorded to every accused in the
spirit of the right to life and personal liberty and the accused must
get a free and fair, just and reasonable trial on the charge imputed
in a criminal case. Any breach or violation of public rights and
duties adversely affects the community as a whole and it becomes
harmful to the society in general. In all circumstances, the courts
have a duty to maintain public confidence in the administration of
justice and such duty is to vindicate and uphold the ‘majesty of the
law’ and the courts cannot turn a blind eye to vexatious or oppressive
conduct that occurs in relation to criminal proceedings.
Denial of a fair trial is as much injustice to the accused as is
to the victim and the society. It necessarily requires a trial before
an impartial judge, a fair prosecutor and an atmosphere of judicial
calm. Since the object of the trial is to mete out justice and to
convict the guilty and protect the innocent, the trial should be a
search for the truth and not a bout over technicalities and must be
conducted under such rules as will protect the innocent and punish the
guilty. Justice should not only be done but should be seem to have
been done. Therefore, free and fair trial is a sine qua non of Article
21 of the Constitution. Right to get a fair trial is not only a basic
fundamental right but a human right also. Therefore, any hindrance in
a fair trial could be violative of Article 14 of the Constitution.
“No trial can be allowed to prolong indefinitely due to the
lethargy of the prosecuting agency or the State machinery and that is
the raison d’etre in prescribing the time frame” for conclusion of the
trial.
Article 12 of the Universal Declaration of Human Rights provides
for the right to a fair trial what is enshrined in Article 21 of our
Constitution. Therefore, fair trial is the heart of criminal
jurisprudence and, in a way, an important facet of a democratic polity
and is governed by rule of law. Denial of fair trial is crucifixion of
human rights. (Vide: Smt. Triveniben v. State of Gujarat, AIR 1989 SC
1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701; Raj Deo
Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka Prasad Agarwal
(D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR 2003 SC 2686; K.
Anbazhagan v. Supdt. of Police, AIR 2004 SC 524; Zahira Habibullah
Sheikh (5) v. State of Gujarat, AIR 2006 SC 1367; Noor Aga v. State of
Punjab & Anr., (2008) 16 SCC 417; Capt. Amarinder Singh v. Parkash
Singh Badal & Ors., (2009) 6 SCC 260; Mohd. Hussain @ Julfikar Ali v.
State (Govt. of NCT of Delhi), AIR 2012 SC 750; Sudevanand v. State
through CBI, (2012) 3 SCC 387; Rattiram & Ors. v. State of M.P.,
(2012) 4 SCC 516; and Natasha Singh v. CBI, (2013) 5 SCC 741).
27. It was lastly contended by Mr. Naphade, learned senior counsel
appearing for the petitioners that this would be a fit case for
exercise of powers under Article 142 of the Constitution for a
direction to the competent authority to extend the tenure of the
Special Judge, who is due to reach the age of retirement on 30th
September, 2013.
28. The learned Attorney General, however, submitted that this Court
could not exercise its powers under Article 142 of the Constitution
in the present case since such an exercise would be contrary to laws
under which each Judge must retire on reaching the age of
superannuation. In order to fortify his submission, learned Attorney
General placed reliance on the judgment of this court in A.B.
Bhaskara Rao v. Inspector of Police, CBI Vishakapatnam, (2011) 10 SCC
259, wherein this court held that the powers under Article 142 of the
Constitution cannot be exercised by this court in contravention of
any statutory provisions, though such powers remain unfettered and
create an independent jurisdiction to pass any order in pubic
interest to do complete justice. However, such exercise of
jurisdiction should not be contrary to any express provision of law.
The powers under Article 142 of the Constitution stand on a
wider footing than ordinary inherent powers of the court to prevent
injustice. The constitutional provision has been couched in a very
wide compass that it prevents “clogging or obstruction of the stream
of justice.” However, such powers are used in consonance with the
statutory provisions.
(See also: Teri Oat Estates (P) Ltd. v. UT, Chandigarh & Ors., (2004)
2 SCC 130; Manish Goel v. Rohini Goel, AIR 2010 SC 1099; and State of
Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537).
29. We find force in the submissions advanced by the learned
Attorney General that this Court generally should not pass any order
in exercise of its extraordinary power under Article 142 of the
Constitution to do complete justice if such order violates any
statutory provisions. We do not intend to say that it would be
illegal to extend the term of the special judge, but that it is a
matter within the jurisdiction of the State in accordance with the
relevant law.
There is yet an uncontroverted legal principle that when
the statute provides for a particular procedure, the authority has to
follow the same and cannot be permitted to act in contravention of
the same. In other words, where a statute requires to do a certain
thing in a certain way, the thing must be done in that way and not
contrary to it at all. Other methods or mode of performance are
impliedly and necessarily forbidden. The aforesaid settled legal
proposition is based on a legal maxim “Expressio unius est exclusio
alterius”, meaning thereby that if a statute provides for a thing to
be done in a particular way, then it has to be done in that manner
and in no other manner and following any other course is not
permissible.
In State of Uttar Pradesh v. Singhara Singh & Ors., AIR
1964 SC 358, this court held as under:
“8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D 426 is
well recognised and is founded on sound principle. Its result is
that if a statute has conferred a power to do an act and has
laid down the method in which that power has to be exercised, it
necessarily prohibits the doing of the act in any other manner
than that which has been prescribed. The principle behind the
rule is that if this were not so, the statutory provision might
as well not have been enacted.”
(See also: Accountant General, State of Madhya Pradesh v. S.K. Dubey &
Anr., (2012) 4 SCC 578)
30. We have examined the scheme of the statutory provisions in this
regard.
The Karnataka Civil Services (General Recruitment) Rules, 1977
authorise the State Government to appoint a retired government servant on contractual basis after meeting certain formalities, for a specific period as may be necessary. So far as judicial officers are concerned, their services are governed by the Karnataka Judicial Services (Recruitment) Rules, 1983 and Rule 3(2) thereof provides the application of the rules framed under any law or proviso under Article 309 of the Constitution to judicial officers, though subject to the provisions of Articles 233, 234 and 235 of the Constitution.
The Rules of 1983 stand repealed by the Karnataka Judicial Service (Recruitment) Rules 2004 (hereinafter referred to as the ‘Rules 2004’) and Rule 11(2) thereof reads as under:
“11(2). All rules regulating the conditions of service of the
members of the State Civil Services made from time to time under any law or the proviso to Article 309 of the Constitution of India shall, subject to Articles 233, 234 and 235 be applicable to the Civil Judges (Junior Division), Civil Judges (Senior Division) and the District Judges recruited and appointed under these rules.”
Thus, it is evident that the State Government is competent to appoint the learned Special Judge on contractual basis after his retirement for the period required to conclude the present trial, though with the consultation of the High Court as required under Article 235 of the Constitution. Further, in our humble opinion, such a course must be adopted in the manner prescribed under the Rules 2004 and in view thereof, the matter requires to be considered by the State Government with the consultation of the High Court.
31. Therefore, in view of the aforestated facts, we refer the matter to the High Court of Karnataka to decide on the administrative side as to whether, in order to conclude the trial expeditiously as guaranteed under Article 21 of the Constitution requires the extension of the services of the learned Special Judge. Considering the urgency of the matter, we request the High Court of Karnataka to take a decision in this regard as early as possible.
32. In view of the above, we are of the considered opinion that the order of removal of Shri G. Bhavani Singh-respondent no.4 is a product of mala fides and the impugned order is not sustainable in the eyes of law as such the same is hereby quashed.
33. With the aforesaid observations/directions, the writ petitions stand disposed of.
.........................………………..J.
(DR.
B.S. CHAUHAN)
.............………………………J.
(S.A. BOBDE)
New Delhi,
September 30, 2013
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