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
2
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
3
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
4
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.
5
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
6
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
1 (2002) 1 SCC 319
2 (2002) 8 SCC 400
3 (2003) 6 SCC 675
7
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
4 (2010) 2 SCC 398
8
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.”
9
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
10
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
11
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
5 (1981) 1 SCC 500
6 AIR 1962 SC 1208
12
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
13
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
7 AIR 1960 Mad 507
8 (1984) 1 SCC 596
14
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.”
15
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
16
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
9 (1997) 5 SCC 76
17
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
18
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
10 (1995) 4 SCC 392
19
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
11 (1988) 2 SCC 602
20
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
21
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
22
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]
23
ITEM NO.1A COURT NO.2 SECTION IIC
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal Nos.32-33/2017
AJAY SINGH AND ANR. AND ETC. Appellant(s)
VERSUS
STATE OF CHHATTISGARH AND ANR. Respondent(s)
Date : 06/01/2017 These appeals were called on for pronouncement
of Judgment today.
For Appellant(s) Dr. Rajesh Pandey, Adv.
Mr. Baijnath Patel, Adv.
Mr. Praveen Chaturvedi, AOR
For Respondent(s) Mr . C. D. Singh, AOR
Ms. Sakshi Kakkar, Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the
judgment of the Bench comprising His Lordship and Hon'ble
Mr. Amitava Roy.
The appeals are dismissed in terms of the signed
reportable judgment.
(Chetan Kumar)
Court Master (H.S. Parasher)
Court Master
(Signed reportable judgment is placed on the file)
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
2
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
3
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
4
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.
5
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
6
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
1 (2002) 1 SCC 319
2 (2002) 8 SCC 400
3 (2003) 6 SCC 675
7
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
4 (2010) 2 SCC 398
8
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.”
9
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
10
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
11
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
5 (1981) 1 SCC 500
6 AIR 1962 SC 1208
12
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
13
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
7 AIR 1960 Mad 507
8 (1984) 1 SCC 596
14
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.”
15
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
16
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
9 (1997) 5 SCC 76
17
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
18
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
10 (1995) 4 SCC 392
19
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
11 (1988) 2 SCC 602
20
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
21
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
22
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]
23
ITEM NO.1A COURT NO.2 SECTION IIC
(For Judgment)
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal Nos.32-33/2017
AJAY SINGH AND ANR. AND ETC. Appellant(s)
VERSUS
STATE OF CHHATTISGARH AND ANR. Respondent(s)
Date : 06/01/2017 These appeals were called on for pronouncement
of Judgment today.
For Appellant(s) Dr. Rajesh Pandey, Adv.
Mr. Baijnath Patel, Adv.
Mr. Praveen Chaturvedi, AOR
For Respondent(s) Mr . C. D. Singh, AOR
Ms. Sakshi Kakkar, Adv.
Hon'ble Mr. Justice Dipak Misra pronounced the
judgment of the Bench comprising His Lordship and Hon'ble
Mr. Amitava Roy.
The appeals are dismissed in terms of the signed
reportable judgment.
(Chetan Kumar)
Court Master (H.S. Parasher)
Court Master
(Signed reportable judgment is placed on the file)
