MANU/SC/1476/2011

Equivalent/Neutral Citation: 2012(1)AC R784(SC ), AIR2012SC 364, AIR2012SC 364, 2011 (Suppl.) AC C 124, 2012(2)ALT(C ri)412,
2012BomC R(C ri)289, IV(2011)C C R394(SC ), 2012(1) C GBC LJ 8, 2012C riLJ1001, 2012(1)C rimes44(SC ), JT2011(14)SC 213, 2012(1)PLJR196,
2012(1)RC R(C riminal)126, 2011(3)SC ALE394, (2011)14SC C 770, (2014)1SC C (LS)208, 2012(1)UC 76, 2012(1)UC 76

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 753-755 of 2009
Decided On: 07.12.2011
Appellants: State of Punjab
Vs.
Respondent: Davinder Pal Singh Bhullar and Ors.
[Alongwith Criminal Appeal Nos. 2258-2264 of 2011 (Arising out of SLP (Crl.) Nos.
6503-6509 of 2011)]
Hon'ble Judges/Coram:
B.S. Chauhan and A.K. Patnaik, JJ.
Counsels:
For Appellant/Petitioner/Plaintiff: Ram Jethmalani, Ranjit Kumar, Sr. Advs., R.S. Khosla,
Sr. AAG, K.K. Khanna, AAG, Aprajita Singh, Meenakshi Grover, Saurabh Ajay Gupta,
Pranav Diesh, Karan Kalia, A.S. Virk, Kuldeep Singh, J.K. Sud, A.K. Mehta and Manoj
Prasad, Advs.
For Respondents/Defendant: P.P. Malhotra, ASG, K.N. Balgopal, Colin Gonsalves, Sr.
Advs., G.K. Bharti, A.P. Mukundan, Nitya Nambiar, Timikha Koza, Rajesh Dhawan,
Madhusmita Bora, Balaji Srinivasan, Jayshree Satpute, Jyoti Mendiratta, Navkiran Singh,
P.K. Dey, Shamsuddin Khan, A.K. Sharma, T.S. Daobia, Sudarshan Singh Rawat, B.
Krishna Prasad, Kamini Jaiswal, Sanjay Jain and Jaspreet Gogia, Advs.
Case Note:
Administration of Justice - Judicial bias--Mere ground of appearance of bias
and not actual bias--Enough to vitiate judgment/order--Once reasonable
apprehension of bias exists--Trial/judgment/order, etc. stands vitiated for
want of impartiality--Such judgment/order is nullity--And trial "coram non-
judice".
The allegations of judicial bias are required to be scrutinised taking into
consideration the factual matrix of the case in hand. The Court must bear in
mind that a mere ground of appearance of bias and not actual bias is enough
to vitiate the judgment/order. Actual proof of prejudice in such a case may
make the case of the party concerned stronger, but such a proof is not
required. In fact, what is relevant is the reasonableness of the apprehension
in that regard in the mind of the party. However, once such an apprehension
exists, the trial/judgment/order etc. stands vitiated for want of impartiality.
Such judgment/order is a nullity and the trial "coram non-judice".
Judicial bias--Doctrine of waiver--Issue of bias should be raised by party at
earliest--If it is aware of it--And knows its right to raise issue at earliest--
Otherwise it would be deemed to have been waived.

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Waiver is an intentional relinquishment of a right. It involves conscious
abandonment of an existing legal right, advantage, benefit, claim or privilege,
which except for such a waiver, a party could have enjoyed. In fact, it is an
agreement not to assert a right. There can be no waiver unless the person
who is said to have waived, is fully informed as to his rights and with full
knowledge about the same, he intentionally abandons them.
"Waiver can be inferred only if and after it is shown that the party knew
about the relevant facts and was aware of his right to take the objection in
question."
Thus, in a given case if a party knows the material facts and is conscious of
his legal rights in that matter, but fails to take the plea of bias at the earlier
stage of the proceedings, it creates an effective bar of waiver against him. In
such facts and circumstances, it would be clear that the party wanted to take
a chance to secure a favourable order from the official/Court and when he
found that he was confronted with an unfavourable order, he adopted the
device of raising the issue of bias. The issue of bias must be raised by the
party at the earliest.
The issue of bias should be raised by the party at the earliest, if it is aware of
it and knows its right to raise the issue at the earliest, otherwise it would be
deemed to have been waived. However, it is to be kept in mind that
acquiescence, being a principle of equity must be made applicable where a
party knowing all the facts of bias etc., surrenders to the authority of the
Court/Tribunal without raising any objection. Acquiescence, in fact, is sitting
by, when another is invading the rights. The acquiescence must be such as to
lead to the inference of a licence sufficient to create rights in other party.
Needless to say that question of waiver/acquiescence would arise in a case
provided the person apprehending the bias/prejudice is a party to the case.
The question of waiver would not arise against a person who is not a party to
the case as such person has no opportunity to raise the issue of bias.
Code of Criminal Procedure, 1973--Sections 362 and 48--Review--No power of
review with criminal court--High Court can alter or review its judgment before
it is signed--Once matter finally disposed of by Court--In absence of specific
statutory provision, Court becomes functus officio--And disentitled to
entertain fresh prayer for any relief--Even High Court in exercise of its
inherent power under Section 482--Has no authority or jurisdiction to alter
same.
There is no power of review with the criminal court after Judgment has been
rendered. The High Court can alter or review its judgment before it is signed.
When an order is passed, it cannot be reviewed. Section 362, Cr. P.C. is based
on an acknowledged principle of law that once a matter is finally disposed of
by a Court, the said Court in the absence of a specific statutory provision
becomes functus officio and is disentitled to entertain a fresh prayer for any
relief unless the former order of final disposal is set aside by a Court of
competent jurisdiction in a manner prescribed by law. The Court becomes
functus officio the moment the order for disposing of a case is signed. Such an
order cannot be altered except to the extent of correcting a clerical or
arithmetical error. There is also no provision for modification of the judgment.

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Moreover, the prohibition contained in Section 362, Cr. P.C. is absolute ; after
the Judgment is signed, even the High Court in exercise of its inherent power
under Section 482. Cr. P.C. has no authority or jurisdiction to alter/review the
same.
If a judgment has been pronounced without jurisdiction or in violation of
principles of natural justice or where the order has been pronounced without
giving an opportunity of being heard to a party affected by it or where an
order was obtained by abuse of the process of Court which mould really
amount to its being without jurisdiction, inherent powers can be exercised to
recall such order for the reason that in such an eventuality the order becomes
a nullity and the provisions of Section 362, Cr. P.C. would not operate. In
such eventuality, the judgment is manifestly contrary to the audi alteram
partem rule of natural justice. The power of recall is different from the power
of altering/reviewing the judgment. However, the party seeking
recall/alteration has to establish that it was not at fault.
The criminal justice delivery system does not clothe the Court to add or delete
any words, except to correct the clerical or arithmetical error as specifically
been provided under the statute itself after pronouncement of the judgment
as the Judge becomes functus officio. Any mistake or glaring omission is left
to be corrected only by the appropriate forum in accordance with law.
Code of Criminal Procedure, 1973--Section 482 and 362--Inherent powers of
High Court--Cannot be resorted to--If there is specific provision in Cr. P.C. for
redressal of grievance of aggrieved party--Or where alternative remedy
available.
The power under Section 482, Cr. P.C. cannot be resorted to if there is a
specific provision in the Cr. P.C. for the redressal of the grievance of the
aggrieved party or where alternative remedy is available. Such powers cannot
be exercised as against the express bar of the law and engrafted in any other
provision of the Cr. P.C. Such powers can be exercised to secure the ends of
justice and to prevent the abuse of the process of Court. However, such
expressions do not confer unlimited/unfettered jurisdiction on the High Court
as the "ends of justice" and "abuse of the process of the Court" have to be
dealt with in accordance with law including the procedural law and not
otherwise. Such powers can be exercised ex debito Justitiae to do real and
substantial justice as the Courts have been conferred such inherent
jurisdiction, in absence of any express provision, as inherent in their
constitution, or such powers as are necessary to do the right and to undo a
wrong in course of administration of justice as provided in the legal maxim
"quando lex aliquid alique. concedit. conceditur et id sine quo res ipsa esse
non potest". However, the High Court has not been given nor does it possess
any inherent power to make any order, which in the opinion of the Court,
could be in the interest of justice as the statutory provision is not intended to
by-pass the procedure prescribed.
Jurisdiction of Bench of High Court--Bench gets jurisdiction from assignment
made of Chief Justice--Judge cannot choose as which matter he should
entertain--And cannot entertain petition in respect of which jurisdiction not

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assignment to him by Chief Justice--As order passed by Court may be without
jurisdiction--And made Judge coram non-judice.
Constitution of India--Articles 32 and 226--Investigation by C.B.I.--When
constitutional Court can direct C.B.I. to investigate into case?--When Court
reaches conclusion that complainant could make out prima facie case against
accused--However, person concerned to be impleaded as party--And must be
given reasonable opportunity of being heard.
A constitutional Court can direct the C.B.I. to investigate into the case
provided the Court after examining the allegations in the complaint reaches a
conclusion that the complainant could make out prima facie, a case against
the accused. However, the person against whom the investigation is sought,
is to be impleaded as a party and must be given a reasonable opportunity of
being heard. C.B.I. cannot be directed to have a roving inquiry as to whether a
person was involved in the alleged unlawful activities. The Court can direct
C.B.I. investigation only in exceptional circumstances where the Court is of
the view that the accusation is against a person who by virtue of his post
could influence the investigation and it may prejudice the cause of the
complainant, and it is necessary so to do in order to do complete justice and
make the investigation credible.
Precedent--Dismissal of S.L.P. in limine without reasons--Does not constitute
any declaration of law or binding precedent--It also does not mean that
reasoning of High Court affirmed--Or that judgment impugned merges with
order of Supreme Court.
Constitution of India--Article 226--Second writ petition for issuing writ of
habeas corpus--Barred by principles of res judicata.
Code of Criminal Procedure, 1973--Sections 482 and 362--Application under
Section 482--Criminal appeal finally disposed of--Bar of Section 362 in
passing any order--Direction by High Court on application under Section 482
to C.B.I. to investigate case following particular procedure--On facts, held that
orders impugned are nullity--Subsequent
proceedings/orders/F.I.R./Investigation--Liable to be declared non-est--F.I.R.
registered by C.B.I. quashed.
The impugned order dated 5.10.2007 though gives an impression that the
High Court was trying to procure the presence of the proclaimed offenders
but. in fact, it was to target the police officers, who had conducted the inquiry
against Mr. Justice X. The order reads that particular persons were eliminated
in a false encounter by the police and it was to be ascertained as to who were
the police officers responsible for it, so that they could be brought to justice.
There could be no justification for the Bench concerned to entertain
applications filed under Section 482, Cr. P.C. as miscellaneous applications in
a disposed of appeal. The law requires that the Bench could have passed an
appropriate order to place those applications before the Bench hearing 482,
Cr. P.C. petitions or place the matters before the Chief Justice for appropriate
orders.

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Shri Sumedh Singh Saini, I.P.S. had conducted the enquiry in 2002 against
Mr. Justice X on the direction of the Chief Justice of the Punjab and Haryana
High Court on the alleged appointment of certain judicial/executive officers in
Punjab through Shri Ravi Sandhu, Chairman of the Public Service Commission.
Shri S. S. Saini had filed reports against Mr. Justice X. The Chief Justice of
Punjab and Haryana High Court confronted Mr. Justice X with the said reports.
On the basis of the said reports, the Chief Justice of the High Court submitted
his report to the Chief Justice of India, on the basis of which a Committee to
investigate the matter further was appointed. This Committee even examined
one Superintendent of Police of the intelligence wing who had worked
directly under Shri S. S. Saini while conducting the enquiry.
The High Court has adopted an unusual and unwarranted procedure, not
known in law, while issuing certain directions. The Court not only entertained
the applications filed by Shri Davinder Pal Singh Bhullar and Darshan Singh
Multani in a disposed of appeal but enlarged the scope of C.B.I. investigation
from proclaimed offenders to other missing persons. The Court directed the
C.B.I. to treat affidavits handed over by the applicant Shri Bhullar who
admittedly had inimical relation with Shri S. S. Saini, as statement of eye-
witnesses. The Court further directed the C.B.I. to change the names of
witnesses to witness (A), (B) or (C) and record their statements under
Section 164. Cr. P.C. so that they could not resile at a later stage. The Court
fails to understand how the Court could direct the C.B.I. to adopt such an
unwarranted course.
The order impugned has rightly been challenged to be a nullity at least on
three grounds, namely, judicial bias ; want of jurisdiction by virtue of
application of the provisions of Section 362, Cr. P.C. coupled with the
principles of constructive res judicata ; and the Bench had not been assigned
the roster to entertain petitions under Section 482, Cr. P.C. The entire judicial
process appears to have been drowned to achieve a motivated result which
the Court is unable to approve of.
The error in the impugned orders of the High Court transgresses judicious
discretion. The process adopted by the High Court led to greater injustice than
securing the ends of justice. The path charted by the High Court inevitably
reflects a biased approach. It was a misplaced sympathy for a cause that can
be termed as being inconsistent to the legal framework. Law is an endless
process of testing and retesting as said by Justice Cardozo in his conclusion of
the Judicial Process, ending in a constant rejection of the dross and retention
of whatever is pure and sound. The multidimensional defective legal process
adopted by the court below cannot be justified on any rational legal principle.
The High Court was swayed away by considerations that are legally
impermissible and unsustainable.
JUDGMENT
B.S. Chauhan, J.
1. Leave granted in the Special Leave Petitions filed by Shri Sumedh Singh Saini.
2 . These appeals have been preferred against the orders dated 30.5.2007, 22.8.2007,
5.10.2007 and 4.7.2008 in Crl. Misc. No. 152-MA of 2007; order dated 19.9.2007 in Crl.

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Misc. No. 86286 of 2007 in Crl. Misc. No. 152-MA of 2007; and orders dated 2.11.2007
and 6.11.2007 in Crl. Misc. No. 93535 of 2007 in Crl. Misc. No. 152-MA of 2007 passed
by the High Court of Punjab and Haryana at Chandigarh. For the sake of convenience of
disposal of the appeals, we would refer only to the criminal appeals filed by the State.
3. The Appeals herein raise peculiar substantial questions of law as to whether the High
Court can pass an order on an application entertained after final disposal of the criminal
appeal or even suo motu particularly, in view of the provisions of Section 362 of the
Code of Criminal Procedure, 1973 (hereinafter called Code of Criminal Procedure) and
as to whether in exercise of its inherent jurisdiction under Section 482 Code of Criminal
Procedure the High Court can ask a particular investigating agency to investigate a case
following a particular procedure through an exceptionally unusual method which is not
in consonance with the statutory provisions of Code of Criminal Procedure.
4. FACTS:
(A) An FIR No. 334/91 under Sections 302, 307, 323, 437 and 120B of the
Indian Penal Code, 1860 (hereinafter called the 'Indian Penal Code') and
Sections 3 and 4 of Explosive Substances Act, 1908 was registered at Police
Station, Sector 17, Chandigarh. In connection with an FIR dated 13.12.1991,
one Balwant Singh Multani was arrested in a case in respect of the FIR No. 440
registered under Sections 212 and 216 Indian Penal Code, Sections 25/54/69 of
Arms Act 1959, and Sections 3 and 5 of the Terrorist and Disruptive Activities
(Prevention) Act, 1987 (hereinafter called as 'TADA Act') at Police Station,
Sector-17, Chandigarh. On 19.12.1991, the said accused Balwant Singh Multani
escaped from the custody of the police from Police Station Qadian (Punjab) for
which FIR No. 112 dated 19.12.1991 under Sections 223 and 224 Indian Penal
Code was registered at Police Station Qadian (Punjab). Shri Darshan Singh
Multani, father of Balwant Singh Multani filed Criminal Writ Petition No. 1188 of
1991 before the High Court of Punjab and Haryana under Article 226 of the
Constitution of India, 1950, (hereinafter called 'Constitution'), for production of
the said accused Balwant Singh Multani. The State Government filed a reply to
the same, explaining that the said accused had escaped from police custody and
after considering the case, the High Court dismissed the Habeas Corpus
Petition. After completion of the investigation in respect of FIR No. 112 of 1991
regarding the escape of Balwant Singh Multani, a challan was filed before the
competent court wherein he was declared a proclaimed offender vide order
dated 12.5.1993. After completion of the investigation in FIR No. 334 of 1991
dated 29.8.1991, the Police chargesheeted eight persons. The charge sheet
revealed that an attempt was made by terrorists on the life of the then SSP,
Chandigarh, by using explosives. In a thunderous explosion that followed, the
Ambassador Car of the SSP, Chandigarh, was blown high into the air where
after it fell down ahead at some distance completely shattered. HC Amin Chand,
the driver of the car and ASI Lalu Ram, PSO, died on the spot. ASI Ramesh Lal,
PSO, and CRPF jawans in the Escort vehicle were grievously injured. The bomb
explosion was carried out by the terrorists from a parked car in order to kill the
SSP, UT, Chandigarh, and other police personnel and this explosion was
conducted with explosives operated with a remote control, because of which,
two police personnel died on the spot and many others were grievously injured.
Three of the accused, namely, Davinder Pal Singh Bhullar alias Master, Partap
Singh Maan and Gursharan Kaur Maan were subjected to trial. The other co-
accused namely, Navneet Singh, Manjit Singh, Manmohan Jit Singh, Gurjant
Singh and Balwant Singh were not traceable. They were declared proclaimed

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offenders.
(B) On conclusion of the trial, the Court vide judgment and order dated
1.12.2006 acquitted the three accused giving them benefit of doubt.
(C) Aggrieved, the State (U.T., Chandigarh) preferred Criminal Miscellaneous
No. 152-MA of 2007 before the High Court challenging the said acquittal.
However, the appeal was dismissed vide judgment and order dated 11.5.2007.
(D) After 20 days of the disposal of the said Crl. Misc. No. 152-MA of 2007,
i.e., appeal against acquittal, the High Court again took up the case suo motu
on 30.5.2007 and directed the authorities to furnish full details of the
proclaimed offenders in respect of the FIR No. 334/91 dated 29.8.1991 and the
Bench marked the matter 'Part Heard'.
(E) Shri Dinesh Bhatt, SSP, Chandigarh submitted an affidavit dated 4.8.2007,
giving information regarding all the proclaimed offenders in that case. One of
them was Davinder Pal Singh Bhullar, who had initially been declared as a
proclaimed offender in the said case on 2.3.1993. However, he had
subsequently been arrested in a case relating to FIR No. 316 of 1993, Police
Station, Parliament Street, Delhi and FIR No. 150 of 1993, Police Station,
Srinivas Puri, New Delhi and had been sentenced to death in a case in which an
assassination attempt was made on the life of Shri M.S. Bitta, the then
President, All India Youth Congress, in which several persons were killed and
Shri Bitta's legs were amputated. It was also mentioned therein that Balwant
Singh Multani escaped from police custody and his whereabouts were not
known. One proclaimed offender, Navneet Singh had been killed in a police
encounter in Rajasthan on 26.2.1995.
(F) After considering the said affidavit filed by Shri Dinesh Bhatt, SSP, the High
Court vide order dated 22.8.2007 directed the Chandigarh Administration to
constitute a Special Investigation Team to enquire into all aspects of the
proclaimed offenders and submit a status report. The High Court also issued
notice to the Central Bureau of Investigation (hereinafter called the 'CBI').
(G) It was during the pendency of these proceedings that Shri Darshan Singh
Multani, father of Balwant Singh Multani, whose habeas corpus writ petition had
already been dismissed by the High Court in the year 1991, approached the
Court by filing a miscellaneous application on 16.9.2007, for issuance of
directions to find out the where about of his son Balwant Singh Multani.
(H) In response to the show cause notice dated 22.8.2007, the CBI submitted
its reply on 3.10.2007 requesting the High Court not to handover the enquiry to
the CBI, as it was already overburdened with the investigation of cases referred
to it by various courts; suffered from a shortage of manpower and resources;
and the case did not have any inter-state ramifications.
(I) The High Court vide order dated 19.9.2007 took note of the fact that
Manmohan Jit Singh, an employee of IBM, was reported by the US Department
of Justice, Federal Bureau of Investigation, to be one of the proclaimed
offenders. In view thereof, an affidavit was filed by Chandigarh Administration
dated 5.10.2007 submitting that the proclaimed offender Manmohan Jit Singh
had left for abroad.

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 (J) However, the High Court vide order dated 5.10.2007, directed the CBI to
investigate the allegations of Darshan Singh Multani regarding his missing son
and further directed the CBI not to disclose the identity of any of the witnesses
to anyone except the High Court and to code the names of witnesses as witness
A, B and C and further to submit periodical status reports. The order further
reads:
However, Shri Sumedh Singh Saini, Director, Vigilance Bureau, Punjab,
who at that time, i.e., on 11.2.1991 was posted as Senior Supdt. of
Police was at helm of affairs of Chandigarh Police and was serving as
the Sr. Supdt. of Police, UT. As of date, he is holding a very important
post and is in a position to influence the investigating officer if it is
handed over to the Punjab Police or even for that matter to the
Chandigarh Police.
(K) In the same matter, the Bench entertained another Criminal Miscellaneous
Application on 30.10.2007 filed by Davinder Pal Singh Bhullar, (a convict in
another case and lodged in Tihar Jail) regarding allegations that his father Shri
Balwant Singh Bhullar and maternal uncle Shri Manjit Singh had been abducted
in the year 1991. The High Court vide order dated 6.11.2007 directed the CBI to
investigate the allegations made in the complaint filed by Davinder Pal Singh
Bhullar and further to get his statement recorded under Section 164 Code of
Criminal Procedure, so that the witness may not resile under duress or be won
over by any kind of inducement. An order was passed rejecting the submission
made on behalf of the CBI that the alleged kidnapping of Shri Balwant Singh
Bhullar and Shri Manjit Singh had no connection with the said case arising out
of FIR No. 334 dated 29.8.1991.
(L) The CBI after making a preliminary investigation/enquiry on the application,
registered an FIR on 2.7.2008 under Sections 120B, 364, 343, 330, 167 and
193 Indian Penal Code against Shri S.S. Saini, the then SSP, UT, Chandigarh,
Shri Baldev Singh Saini, the then DSP, UT, Chandigarh, Shri Harsahay Sharma,
the then SI, P.S. Central, Chandigarh, Shri Jagir Singh, the then SI, P.S.
Central, Chandigarh and other unknown police officials of UT Police,
Chandigarh, and P.S. Qadian. The CBI further submitted a status report on
4.7.2008 and after considering the same, the High Court issued further
directions to complete the investigation within the stipulated period and submit
a further report.
5. The State of Punjab, being aggrieved, approached this Court submitting that it has to
espouse the cause of its officers who fought war against terrorism, putting themselves
at risk during the troublesome period in the early 1990s. That Shri S.S. Saini, SSP, has
been one of the most decorated officers of the State having outstanding entries in his
Service Book. He is an honest and hardworking officer and has taken drastic steps to
curb terrorism in the State in early 1990s. The terrorists had planned a diabolical act
and an attempt was made on his life, wherein his three bodyguards were killed and
three others were seriously injured. The officer himself suffered grievous injuries. The
terrorists had also even chased him up to England when he went there for a social visit.
They had planned to attack the said officer. They were arrested by the police and put to
trial and also stood convicted. A sentence of four years had been imposed. These
appeals have been filed on various grounds, including: the judicial bias of the Judge
presiding over the Bench by making specific allegations that the officer named in the
order i.e. Shri S.S. Saini had conducted an enquiry against the Presiding Judge

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(hereinafter called 'Mr. Justice X') on the direction of the Chief Justice of Punjab and
Haryana High Court and, thus, the said Judge ought not to have proceeded with the
matter, rather should have recused himself from the case. More so, as the judgment in
appeal against acquittal had been passed by the Court on 11.5.2007 upholding the
judgment of acquittal, the Court has become functus officio and it had no competence
to reopen the case vide order dated 30.5.2007.
6. This Court vide order dated 11.7.2008 stayed the investigation until further orders.
7. Shri Ram Jethmalani, Shri Ravi Shankar Prasad and Shri Ranjit Kumar, learned senior
counsel appearing for the Appellants, have submitted that once the judgment in appeal
against acquittal has been rendered by the High Court on 11.5.2007, in view of the
complete embargo of the provisions of Section 362 Code of Criminal Procedure, the
Court having become functus officio was not competent to reopen the case and, thus,
proceedings subsequent to 11.5.2007 are a nullity for want of competence/jurisdiction.
More so, the proceedings that continued after the said judgment, by illegally reopening
the case, were a result of judicial bias of Mr. Justice X, which was just to take revenge
against Shri S.S. Saini, who had conducted an inquiry against Mr. Justice X and thus, all
such proceedings are liable to be quashed. None of the parties had ever named Mr. S.S.
Saini in connection with any of the cases. It was Mr. Justice X, who, on his personal
knowledge, mentioned his name in court order dated 5.10.2007. Such a course is not
permissible in law. More so, so far as Balwant Singh Multani's case is concerned, his
father Darshan Singh Multani (at the relevant time an officer of Indian Administrative
Service) had approached the High Court for the same relief and the case stood
dismissed in the year 1991 and he had not taken up the matter any further. Thus, the
proceedings attained finality. Application of Mr. Multani could not have been entertained
after the expiry of 16 years. The same position existed in respect of the application filed
by Davinder Pal Singh Bhullar (who had been convicted and awarded a death sentence
in another case and the same stood confirmed by this Court) in respect of abduction of
his father Balwant Singh Bhullar and uncle Manjit Singh in the year 1991 without
furnishing any explanation for delay of 16 years. More so, Mrs. Jagir Kaur, sister of
Balwant Singh Bhullar, had filed Crl. W.P. No. 1062 of 1997 for production of Balwant
Singh Bhullar, which stood dismissed vide order dated 15.7.1997 only on the ground of
delay. A second writ petition for habeas corpus is not maintainable and is barred by the
principles of res judicata. The CBI submitted that investigation of the said alleged
abduction be not tagged with that of the involvement of the officer and disappearance
of Balwant Singh Multani, as both the incidents were separate and independent and had
no connection with each other. The High Court after taking note of the said submissions
in its order dated 6.11.2007 illegally clubbed both the said applications. The
applications filed by Davinder Pal Singh Bhullar and Darshan Singh Multani could not be
filed/entertained in the disposed of criminal appeal. Had the said applications been filed
independently, the same could be rejected as being filed at a much belated stage. Even
otherwise, the said applications could have gone to a different Bench. Thus, by
entertaining those applications in a disposed of criminal appeal, the Bench presided
over by Mr. Justice X violated the roster fixed by the Chief Justice. Thus, the
proceedings are liable to be quashed.
8. On the other hand, S/Shri K.N. Balgopal and Colin Gonsalves, learned senior counsel
appearing for Respondents - private parties and Shri P.K. Dey, Learned Counsel
appearing for the CBI, have submitted that in order to do complete justice in the case,
the High Court has exercised its power under Section 482 Code of Criminal Procedure,
no interference is required by this Court on such technical grounds. The provisions of
Section 362 Code of Criminal Procedure are not to be construed in a rigid and technical

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manner as it would defeat the ends of justice. The two-fold aim of criminal justice is
that 'guilt shall not escape nor innocence suffer.' Allegations made against the Presiding
Judge are scandalous and false and do not require any consideration whatsoever. The
name of Mr. S.S. Saini, SSP stood mentioned in the record of the case before the
Bench. The charge sheet filed after investigation of allegations in the FIR dated
19.8.1991 and in the judgment of the Trial Court dated 1.12.2006 speak that the attack
was made on him. It is wrong that his name has been added by the Presiding Judge in
the Bench for his personal revenge on his personal knowledge. So far as names of two
proclaimed offenders, who had been killed in an encounter are concerned, it has been
mentioned in the charge sheet itself that Navneet Singh and Gurjant Singh, proclaimed
offenders, had been killed in encounters. However, such fact could not be brought to
the notice of the High Court by the public prosecutor. The State of Punjab filed an
application for intervention but did not raise any issue of bias or prejudice against the
Presiding Judge of the Bench. The Union Territory of Chandigarh has approached this
Court against the same impugned judgment and order and special leave petition has
been dismissed in limine. More so, after conducting a preliminary enquiry, the CBI has
registered a First Information Report (hereinafter called the 'FIR') on 2.7.2008 which
should not be quashed. The CBI be permitted to investigate the cases. Thus, the appeals
are liable to be dismissed.
9. We have considered the rival submissions made by Learned Counsel for the parties
and perused the record.
LEGAL ISSUES:
I. JUDICIAL BIAS
10. There may be a case where allegations may be made against a Judge of having
bias/prejudice at any stage of the proceedings or after the proceedings are over. There
may be some substance in it or it may be made for ulterior purpose or in a pending
case to avoid the Bench if a party apprehends that judgment may be delivered against
him. Suspicion or bias disables an official from acting as an adjudicator. Further, if such
allegation is made without any substance, it would be disastrous to the system as a
whole, for the reason, that it casts doubt upon a Judge who has no personal interest in
the outcome of the controversy.
11. In respect of judicial bias, the statement made by Frank J. of the United States is
worth quoting:
If, however, 'bias' and 'partiality' be defined to mean the total absence of
preconceptions in the mind of the Judge, then no one has ever had a fair trial
and no one will. The human mind, even at infancy, is no blank piece of paper.
We are born with predispositions ''. Much harm is done by the myth that,
merely by''. taking the oath of office as a judge, a man ceases to be human and
strips himself of all predilections, becomes a passionless thinking machine.
(In re: Linahan 138 F. 2nd 650 (1943))
(See also: State of West Bengal and Ors. v. Shivananda Pathak and Ors.
MANU/SC/0342/1998 : AIR 1998 SC 2050).
12. To recall the words of Mr. Justice Frankfurter in Public Utilities Commission of
the District of Columbia v. Franklin S. Pollak 343 US 451 (1952) 466: The Judicial
process demands that a judge moves within the framework of relevant legal rules and

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the covenanted modes of thought for ascertaining them. He must think dispassionately
and submerge private feeling on every aspect of a case. There is a good deal of shallow
talk that the judicial robe does not change the man within it. It does. The fact is that,
on the whole, judges do lay aside private views in discharging their judicial functions.
This is achieved through training, professional habits, self-discipline and that fortunate
alchemy by which men are loyal to the obligation with which they are entrusted.
1 3 . I n Bhajan Lal, Chief Minister, Haryana v. Jindal Strips Ltd. and Ors.
MANU/SC/0836/1994 : (1994) 6 SCC 19, this Court observed that there may be some
consternation and apprehension in the mind of a party and undoubtedly, he has a right
to have fair trial, as guaranteed by the Constitution. The apprehension of bias must be
reasonable, i.e. which a reasonable person can entertain. Even in that case, he has no
right to ask for a change of Bench, for the reason that such an apprehension may be
inadequate and he cannot be permitted to have the Bench of his choice. The Court held
as under:
Bias is the second limb of natural justice. Prima facie no one should be a judge
in what is to be regarded as 'sua causa', whether or not he is named as a party.
The decision-maker should have no interest by way of gain or detriment in the
outcome of a proceeding. Interest may take many forms. It may be direct, it
may be indirect, it may arise from a personal relationship or from a relationship
with the subject-matter, from a close relationship or from a tenuous one.
14. The principle in these cases is derived from the legal maxim nemo debet esse judex
in causa propria sua. It applies only when the interest attributed is such as to render the
case his own cause. This principle is required to be observed by all judicial and quasi-
judicial authorities as non-observance thereof, is treated as a violation of the principles
of natural justice. (Vide: Rameshwar Bhartia v. The State of Assam
MANU/SC/0039/1952 : AIR 1952 SC 405; Mineral Development Ltd. v. The State of
Bihar and Anr. MANU/SC/0015/1959 : AIR 1960 SC 468;Meenglas Tea Estate v.
The Workmen MANU/SC/0139/1963 : AIR 1963 SC 1719; andThe Secretary to the
Government, Transport Department, Madras v. Munuswamy Mudaliar and Ors.
MANU/SC/0435/1988 : AIR 1988 SC 2232).
The failure to adhere to this principle creates an apprehension of bias on the part of the
Judge. The question is not whether the Judge is actually biased or, in fact, has really
not decided the matter impartially, but whether the circumstances are such as to create
a reasonable apprehension in the mind of others that there is a likelihood of bias
affecting the decision. (Vide: A.U. Kureshi v. High Court of Gujarat and Anr.
MANU/SC/0209/2009 : (2009) 11 SCC 84; andMohd. Yunus Khan v. State of U.P.
and Ors. MANU/SC/0767/2010 : (2010) 10 SCC 539).
1 5 . I n Manak Lal, Advocate v. Dr. Prem Chand Singhvi and Ors.
MANU/SC/0001/1957 : AIR 1957 SC 425, this Court while dealing with the issue of bias
held as under:
Actual proof of prejudice in such cases may make the Appellant's case stronger
but such proof is not necessary'. What is relevant is the reasonableness of the
apprehension in that regard in the mind of the Appellant.
16. The test of real likelihood of bias is whether a reasonable person, in possession of
relevant information, would have thought that bias was likely and whether the
adjudicator was likely to be disposed to decide the matter only in a particular way.
Public policy requires that there should be no doubt about the purity of the adjudication

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process/administration of justice. The Court has to proceed observing the minimal
requirements of natural justice, i.e., the Judge has to act fairly and without bias and in
good faith. A judgment which is the result of bias or want of impartiality, is a nullity
and the trial 'coram non judice'. Therefore, the consequential order, if any, is liable to
be quashed. (Vide: Vassiliades v. Vassiliades AIR 1945 PC 38; S. Parthasarathi v.
State of Andhra Pradesh MANU/SC/0059/1973 : AIR 1973 SC 2701; andRanjit
Thakur v. Union of India and Ors. MANU/SC/0691/1987 : AIR 1987 SC 2386).
17. In Rupa Ashok Hurra v. Ashok Hurra and Anr. MANU/SC/0910/2002 : (2002) 4
SCC 388, this Court observed that public confidence in the judiciary is said to be the
basic criterion of judging the justice delivery system. If any act or action, even if it is a
passive one, erodes or is even likely to erode the ethics of judiciary, the matter needs a
further look. In the event, there is any affectation of such an administration of justice
either by way of infraction of natural justice or an order being passed wholly without
jurisdiction or affectation of public confidence as regards the doctrine of integrity in the
justice delivery system, technicality ought not to outweigh the course of justice ' the
same being the true effect of the doctrine of ex debito justitiae. It is enough if there is a
ground of an appearance of bias.
While deciding the said case, this Court placed reliance upon the judgment of the House
of Lords in Ex Parte Pinochet Ugarte (No. 2) 1999 All ER 577, in which the House of
Lords on 25.11.1998, restored warrant of arrest of Senator Pinochet who was the Head
of the State of Chile and was to stand trial in Spain for some alleged offences. It came
to be known later that one of the Law Lords (Lord Hoffmann), who heard the case, had
links with Amnesty International (AI) which had become a party to the case. This was
not disclosed by him at the time of the hearing of the case by the House. Pinochet
Ugarte, on coming to know of that fact, sought reconsideration of the said judgment of
the House of Lords on the ground of appearance of bias and not actual bias. On the
principle of disqualification of a Judge to hear a matter on the ground of appearance of
bias, it was pointed out:
An appeal to the House of Lords will only be reopened where a party though no
fault of its own, has been subjected to an unfair procedure. A decision of the
House of Lords will not be varied or rescinded merely because it is
subsequently thought to be wrong.
18. In Locabail (UK) Ltd. v. Bayfield Properties Ltd. and Anr.(2000) 1 All ER 65,
the House of Lords considered the issue of disqualification of a Judge on the ground of
bias and held that in applying the real danger or possibility of bias test, it is often
appropriate to inquire whether the Judge knew of the matter in question. To that end, a
reviewing court may receive a written statement from the Judge. A Judge must recuse
himself from a case before any objection is made or if the circumstances give rise to
automatic disqualification or he feels personally embarrassed in hearing the case. If, in
any other case, the Judge becomes aware of any matter which can arguably be said to
give rise to a real danger of bias, it is generally desirable that disclosure should be
made to the parties in advance of the hearing. Where objection is then made, it will be
as wrong for the Judge to yield to a tenuous or frivolous objection as it will be to ignore
an objection of substance. However, if there is real ground for doubt, that doubt must
be resolved in favour of recusal. Where, following appropriate disclosure by the Judge,
a party raises no objection to the Judge hearing or continuing to hear a case, that party
cannot subsequently complain that the matter disclosed gives rise to a real danger of
bias.

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1 9 . In Justice P.D. Dinakaran v. Hon'ble Judges Inquiry Committee
MANU/SC/0727/2011 : (2011) 8 SCC 380, this Court has held that in India the courts
have held that, to disqualify a person as a Judge, the test of real likelihood of bias, i.e.,
real danger is to be applied, considering whether a fair minded and informed person,
apprised of all the facts, would have a serious apprehension of bias. In other words, the
courts give effect to the maxim that 'justice must not only be done but be seen to be
done', by examining not actual bias but real possibility of bias based on facts and
materials.
The Court further held:
The first requirement of natural justice is that the Judge should be impartial and
neutral and must be free from bias. He is supposed to be indifferent to the
parties to the controversy. He cannot act as Judge of a cause in which he
himself has some interest either pecuniary or otherwise as it affords the
strongest proof against neutrality. He must be in a position to act judicially and
to decide the matter objectively. A Judge must be of sterner stuff. His mental
equipoise must always remain firm and undetected. He should not allow his
personal prejudice to go into the decision- making. The object is not merely
that the scales be held even; it is also that they may not appear to be inclined.
If the Judge is subject to bias in favour of or against either party to the dispute
or is in a position that a bias can be assumed, he is disqualified to act as a
Judge, and the proceedings will be vitiated. This rule applies to the judicial and
administrative authorities required to act judicially or quasi-judicially.'
20. Thus, it is evident that the allegations of judicial bias are required to be scrutinised
taking into consideration the factual matrix of the case in hand. The court must bear in
mind that a mere ground of appearance of bias and not actual bias is enough to vitiate
the judgment/order. Actual proof of prejudice in such a case may make the case of the
party concerned stronger, but such a proof is not required. In fact, what is relevant is
the reasonableness of the apprehension in that regard in the mind of the party.
However, once such an apprehension exists, the trial/judgment/order etc. stands
vitiated for want of impartiality. Such judgment/order is a nullity and the trial 'coram
non-judice.
II. DOCTRINE of WAIVER:
21. In Manak Lal (Supra), this Court held that alleged bias of a Judge/official/Tribunal
does not render the proceedings invalid if it is shown that the objection in that regard
and particularly against the presence of the said official in question, had not been taken
by the party even though the party knew about the circumstances giving rise to the
allegations about the alleged bias and was aware of its right to challenge the presence
of such official.
The Court further observed that waiver cannot always and in every case be inferred
merely from the failure of the party to take the objection. 'Waiver can be inferred only if
and after it is shown that the party knew about the relevant facts and was aware of his
right to take the objection in question.
Thus, in a given case if a party knows the material facts and is conscious of his legal
rights in that matter, but fails to take the plea of bias at the earlier stage of the
proceedings, it creates an effective bar of waiver against him. In such facts and
circumstances, it would be clear that the party wanted to take a chance to secure a
favourable order from the official/court and when he found that he was confronted with

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an unfavourable order, he adopted the device of raising the issue of bias. The issue of
bias must be raised by the party at the earliest.
(See: M/s. Pannalal Binjraj and Ors. v. Union of India and Ors.
MANU/SC/0020/1956 : AIR 1957 SC 397; and Justice P.D. Dinakaran (Supra))
22. I n M/s. Power Control Appliances and Ors. v. Sumeet Machines Pvt. Ltd.
MANU/SC/0646/1994 : (1994) 2 SCC 448 this Court held as under:
Acquiescence is sitting by, when another is invading the rights. It is a course of
conduct inconsistent with the claim... It implies positive acts; not merely
silence or inaction such as involved in laches... The acquiescence must be such
as to lead to the inference of a licence sufficient to create a new right in the
Defendant....
Inaction in every case does not lead to an inference of implied consent or acquiescence
as has been held by this Court in P. John Chandy and Company (P) Ltd. v. John P.
Thomas MANU/SC/0382/2002 : AIR 2002 SC 2057. Thus, the Court has to examine the
facts and circumstances in an individual case.
23. Waiver is an intentional relinquishment of a right. It involves conscious
abandonment of an existing legal right, advantage, benefit, claim or privilege, which
except for such a waiver, a party could have enjoyed. In fact, it is an agreement not to
assert a right. There can be no waiver unless the person who is said to have waived, is
fully informed as to his rights and with full knowledge about the same, he intentionally
abandons them. (Vide: Dawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish
MANU/PR/0024/1935 : AIR 1935 PC 79;Basheshar Nath v. Commissioner of
Income-tax, Delhi and Rajasthan and Anr. MANU/SC/0064/1958 : AIR 1959 SC
149; Mademsetty Satyanarayana v. G. Yelloji Rao and Ors. MANU/SC/0310/1964
: AIR 1965 SC 1405; Associated Hotels of India Ltd. v. S.B. Sardar Ranjit Singh
MANU/SC/0333/1967 : AIR 1968 SC 933;Jaswantsingh Mathurasingh and Anr. v.
Ahmedabad Municipal Corporation and Ors. MANU/SC/0469/1991 : (1992) Supp 1
SCC 5; M/s. Sikkim Subba Associates v. State of Sikkim MANU/SC/0313/2001 :
AIR 2001 SC 2062; and Krishna Bahadur v. Purna Theatre and Ors.
MANU/SC/0667/2004 : AIR 2004 SC 4282).
24. This Court in Municipal Corporation of Greater Bombay v. Dr. Hakimwadi
Tenants' Association and Ors. MANU/SC/0538/1987 : AIR 1988 SC 233 considered
the issue of waiver/acquiescence by the non-parties to the proceedings and held:
In order to constitute waiver, there must be voluntary and intentional
relinquishment of a right. The essence of a waiver is an estoppel and where
there is no estoppel, there is no waiver. Estoppel and waiver are questions of
conduct and must necessarily be determined on the facts of each case....
There is no question of estoppel, waiver or abandonment. There is no specific
plea of waiver, acquiescence or estoppel, much less a plea of abandonment of
right. That apart, the question of waiver really does not arise in the case.
Admittedly, the tenants were not parties to the earlier proceedings. There is,
therefore, no question of waiver of rights, by Respondents 4-7 nor would this
disentitle the tenants from maintaining the writ petition.
25. Thus, from the above, it is apparent that the issue of bias should be raised by the
party at the earliest, if it is aware of it and knows its right to raise the issue at the

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earliest, otherwise it would be deemed to have been waived. However, it is to be kept in
mind that acquiescence, being a principle of equity must be made applicable where a
party knowing all the facts of bias etc., surrenders to the authority of the Court/Tribunal
without raising any objection. Acquiescence, in fact, is sitting by, when another is
invading the rights. The acquiescence must be such as to lead to the inference of a
licence sufficient to create rights in other party. Needless to say that question of
waiver/acquiescence would arise in a case provided the person apprehending the
bias/prejudice is a party to the case. The question of waiver would not arise against a
person who is not a party to the case as such person has no opportunity to raise the
issue of bias.
III. BAR TO REVIEW/ALTER- JUDGMENT
2 6 . There is no power of review with the Criminal Court after judgment has been
rendered. The High Court can alter or review its judgment before it is signed. When an
order is passed, it cannot be reviewed. Section 362 Code of Criminal Procedure is based
on an acknowledged principle of law that once a matter is finally disposed of by a
Court, the said Court in the absence of a specific statutory provision becomes functus
officio and is disentitled to entertain a fresh prayer for any relief unless the former
order of final disposal is set aside by a Court of competent jurisdiction in a manner
prescribed by law. The Court becomes functus officio the moment the order for
disposing of a case is signed. Such an order cannot be altered except to the extent of
correcting a clerical or arithmetical error. There is also no provision for modification of
the judgment. (See: Hari Singh Mann v. Harbhajan Singh Bajwa and Ors. AIR
2001 SC 43; and Chhanni v. State of U.P. MANU/SC/8838/2006 : AIR 2006 SC 3051)
Moreover, the prohibition contained in Section 362 Code of Criminal Procedure is
absolute; after the judgment is signed, even the High Court in exercise of its inherent
power under Section 482 Code of Criminal Procedure has no authority or jurisdiction to
alter/review the same. (See: Moti Lal v. State of M.P. MANU/SC/0362/1994 : AIR
1994 SC 1544; Hari Singh Mann (supra); and State of Kerala v. M.M. Manikantan
Nair MANU/SC/0307/2001 : AIR 2001 SC 2145).
27. If a judgment has been pronounced without jurisdiction or in violation of principles
of natural justice or where the order has been pronounced without giving an
opportunity of being heard to a party affected by it or where an order was obtained by
abuse of the process of court which would really amount to its being without
jurisdiction, inherent powers can be exercised to recall such order for the reason that in
such an eventuality the order becomes a nullity and the provisions of Section 362 Code
of Criminal Procedure would not operate. In such eventuality, the judgment is
manifestly contrary to the audi alteram partem rule of natural justice. The power of
recall is different from the power of altering/reviewing the judgment. However, the
party seeking recall/alteration has to establish that it was not at fault. (Vide: Chitawan
and Ors. v. Mahboob Ilahi MANU/UP/0178/1968 : 1970 Cri.L.J. 378;Deepak
Thanwardas Balwani v. State of Maharashtra and Anr. 1985 Cri.L.J. 23; Habu v.
State of Rajasthan MANU/RH/0023/1987 : AIR 1987 Raj. 83 (F.B.); Swarth Mahto
and Anr. v. Dharmdeo Narain Singh MANU/SC/0272/1972 : AIR 1972 SC 1300;
Makkapati Nagaswara Sastri v. S.S. Satyanarayan MANU/SC/0156/1980 : AIR
1981 SC 1156; Asit Kumar Kar v. State of West Bengal and Ors.
MANU/SC/0062/2009 : (2009) 2 SCC 703; andVishnu Agarwal v. State of U.P. and
Anr. MANU/SC/0147/2011 : AIR 2011 SC 1232).
28. This Court by virtue of Article 137 of the Constitution has been invested with an

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express power to review any judgment in Criminal Law and while no such power has
been conferred on the High Court, inherent power of the court cannot be exercised for
doing that which is specifically prohibited by the Code itself. (Vide: State
Represented by D.S.P., S.B.C.I.D., Chennai v. K.V. Rajendran and Ors.
MANU/SC/3909/2008 : AIR 2009 SC 46).
29. In Smt. Sooraj Devi v. Pyare Lal and Anr. MANU/SC/0228/1981 : AIR 1981 SC
736, this Court held that the prohibition in Section 362 Code of Criminal Procedure
against the Court altering or reviewing its judgment, is subject to what is 'otherwise
provided by this Code or by any other law for the time being in force'. Those words,
however, refer to those provisions only where the Court has been expressly authorised
by the Code or other law to alter or review its judgment. The inherent power of the
Court is not contemplated by the saving provision contained in Section 362 Code of
Criminal Procedure and, therefore, the attempt to invoke that power can be of no avail.
30. Thus, the law on the issue can be summarised to the effect that the criminal justice
delivery system does not clothe the court to add or delete any words, except to correct
the clerical or arithmetical error as specifically been provided under the statute itself
after pronouncement of the judgment as the Judge becomes functus officio. Any mistake
or glaring omission is left to be corrected only by the appropriate forum in accordance
with law.
IV. Inherent Powers Under Section 482 Code of Criminal Procedure.
31. The inherent power under Section 482 Code of Criminal Procedure is intended to
prevent the abuse of the process of the Court and to secure the ends of justice. Such
power cannot be exercised to do something which is expressly barred under the Code of
Criminal Procedure. If any consideration of the facts by way of review is not permissible
under the Code of Criminal Procedure and is expressly barred, it is not for the Court to
exercise its inherent power to reconsider the matter and record a conflicting decision. If
there had been change in the circumstances of the case, it would be in order for the
High Court to exercise its inherent powers in the prevailing circumstances and pass
appropriate orders to secure the ends of justice or to prevent the abuse of the process
of the Court. Where there are no such changed circumstances and the decision has to be
arrived at on the facts that existed as on the date of the earlier order, the exercise of
the power to reconsider the same materials to arrive at different conclusion is in effect a
review, which is expressly barred under Section 362 Code of Criminal Procedure (See:
Simrikhia v. Dolley Mukherjee and Chhabi Mukherjee and Anr.
MANU/SC/0440/1990 : (1990) 2 SCC 437)
32. The inherent power of the court under Section 482 Code of Criminal Procedure is
saved only where an order has been passed by the criminal court which is required to
be set aside to secure the ends of justice or where the proceeding pending before a
court, amounts to abuse of the process of court. Therefore, such powers can be
exercised by the High Court in relation to a matter pending before a criminal court or
where a power is exercised by the court under the Code of Criminal Procedure. Inherent
powers cannot be exercised assuming that the statute conferred an unfettered and
arbitrary jurisdiction, nor can the High Court act at its whim or caprice. The statutory
power has to be exercised sparingly with circumspection and in the rarest of rare cases.
( V i d e: Kurukshetra University and Anr. v. State of Haryana and Anr.
MANU/SC/0102/1977 : AIR 1977 SC 2229; andState of W.B. and Ors. v. Sujit
Kumar Rana MANU/SC/0049/2004 : (2004) 4 SCC 129).

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33. The power under Section 482 Code of Criminal Procedure cannot be resorted to if
there is a specific provision in the Code of Criminal Procedure for the redressal of the
grievance of the aggrieved party or where alternative remedy is available. Such powers
cannot be exercised as against the express bar of the law and engrafted in any other
provision of the Code of Criminal Procedure. Such powers can be exercised to secure
the ends of justice and to prevent the abuse of the process of court. However, such
expressions do not confer unlimited/unfettered jurisdiction on the High Court as the
'ends of justice' and 'abuse of the process of the court' have to be dealt with in
accordance with law including the procedural law and not otherwise. Such powers can
be exercised ex debito justitiae to do real and substantial justice as the courts have
been conferred such inherent jurisdiction, in absence of any express provision, as
inherent in their constitution, or such powers as are necessary to do the right and to
undo a wrong in course of administration of justice as provided in the legal maxim
'quando lex aliquid alique, concedit, conceditur et id sine quo res ipsa esse non potest'.
However, the High Court has not been given nor does it possess any inherent power to
make any order, which in the opinion of the court, could be in the interest of justice as
the statutory provision is not intended to by-pass the procedure prescribed. (Vide: Lalit
Mohan Mondal and Ors. v. Benoyendra Nath Chatterjee MANU/SC/0173/1981 :
AIR 1982 SC 785; Rameshchandra Nandlal Parikh v. State of Gujarat and Anr.
MANU/SC/2289/2006 : AIR 2006 SC 915;Central Bureau of Investigation v. Ravi
Shankar Srivastava, IAS and Anr. MANU/SC/8405/2006 : AIR 2006 SC 2872;Inder
Mohan Goswami and Anr. v. State of Uttaranchal and Ors. MANU/SC/7999/2007 :
AIR 2008 SC 251; and Pankaj Kumar v. State of Maharashtra and Ors.
MANU/SC/7818/2008 : AIR 2008 SC 3077).
3 4 . The High Court can always issue appropriate direction in exercise of its power
under Article 226 of the Constitution at the behest of an aggrieved person, if the court
is convinced that the power of investigation has been exercised by an Investigating
Officer malafide or the matter is not investigated at all. Even in such a case, the High
Court cannot direct the police as to how the investigation is to be conducted but can
insist only for the observance of process as provided for in the Code of Criminal
Procedure. Another remedy available to such an aggrieved person may be to file a
complaint under Section 200 Code of Criminal Procedure and the court concerned will
proceed as provided in Chapter XV of the Code of Criminal Procedure (See:Gangadhar
Janardan Mhatre v. State of Maharashtra and Ors. MANU/SC/0830/2004 : (2004)
7 SCC 768; and Divine Retreat Centre v. State of Kerala and Ors.
MANU/SC/1150/2008 : AIR 2008 SC 1614).
35. The provisions of Section 482 Code of Criminal Procedure closely resemble Section
151 of Code of Civil Procedure, 1908, (hereinafter called the 'Code of Civil Procedure'),
and, therefore, the restrictions which are there to use the inherent powers under Section
151 Code of Civil Procedure are applicable in exercise of powers under Section 482
Code of Criminal Procedure and one such restriction is that there exists no other
provision of law by which the party aggrieved could have sought relief. (Vide: The
Janata Dal v. H.S. Chowdhary and Ors. MANU/SC/0532/1992 : AIR 1993 SC 892).
3 6 . I n Divisional Forest Officer and Anr. v. G.V. Sudhakar Rao and Ors.
MANU/SC/0069/1985 : AIR 1986 SC 328, this Court held that High Court was not
competent under Section 482 Code of Criminal Procedure to stay the operation of an
order of confiscation under Section 44(IIA) of the Andhra Pradesh Forest Act as it is
distinct from a trial before a court for the commission of an offence.
3 7 . I n Popular Muthiah v. State represented by Inspector of Police

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MANU/SC/8399/2006 : (2006) 7 SCC 296, explaining the scope of Section 482 Code of
Criminal Procedure, this Court held:
The High Court cannot issue directions to investigate the case from a
particular angle or by a particular agency.
(Emphasis added)
Thus, in case, the High Court in exercise of its inherent powers, issues directions
contravening the statutory provisions laying down the procedure of investigation, it
would be unwarranted in law.
38. I n Rajan Kumar Machananda v. State of Karnataka MANU/SC/0267/1987 :
1990 (supp.) SCC 132, this Court examined a case as to whether the bar under Section
397(3) Code of Criminal Procedure can be circumvented by invoking inherent
jurisdiction under Section 482 Code of Criminal Procedure by the High Court. The Court
came to the conclusion that if such a course was permissible it would be possible that
every application facing the bar of Section 397(3) Code of Criminal Procedure would be
labelled as one under Section 482 Code of Criminal Procedure. Thus, the statutory bar
cannot be circumvented.
39. This Court has consistently emphasised that judges must enforce laws whatever
they may be and decide the cases strictly in accordance with the law. 'The laws are not
always just and the lights are not always luminous. Nor, again, are judicial methods
always adequate to secure justice'. But the courts 'are bound by the Penal Code and
Code of Criminal Procedure' by the very 'oath' of the office.
(See: Joseph Peter v. State of Goa, Daman and Diu AIR 1977 SC 1812).
40. It is evident from the above that inherent powers can be exercised only to prevent
the abuse of the process of the court and to secure the ends of justice. However,
powers can be used provided there is no prohibition for passing such an order under
the provisions of Code of Criminal Procedure and there is no provision under which the
party can seek redressal of its grievance. Under the garb of exercising inherent powers,
the Criminal Court cannot review its judgment. Such powers are analogous to the
provisions of Section 151 Code of Civil Procedure and can be exercised only to do real
and substantial justice. The rule of inherent powers has its source in the maxim
'Quadolex aliquid alicui concedit, concedere videtur id sine quo ipsa, ess uon potest'
which means that when the law gives anything to anyone, it gives also all those things
without which the thing itself could not exist. The order cannot be passed by-passing
the procedure prescribed by law. The court in exercise of its power under Section 482
Code of Criminal Procedure cannot direct a particular agency to investigate the matter or
to investigate a case from a particular angle or by a procedure not prescribed in Code of
Criminal Procedure. Such powers should be exercised very sparingly to prevent abuse of
process of any court. Courts must be careful to see that its decision in exercise of this
power is based on sound principles.
To inhere means that it forms a necessary part and belongs as an attribute in the nature
of things. The High Court under Section 482 Code of Criminal Procedure is crowned
with a statutory power to exercise control over the administration of justice in criminal
proceedings within its territorial jurisdiction. This is to ensure that proceedings
undertaken under the Code of Criminal Procedure are executed to secure the ends of
justice. For this, the Legislature has empowered the High Court with an inherent
authority which is repository under the Statute. The Legislature therefore clearly

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intended the existence of such power in the High Court to control proceedings initiated
under the Code of Criminal Procedure. Conferment of such inherent power might be
necessary to prevent the miscarriage of justice and to prevent any form of injustice.
However, it is to be understood that it is neither divine nor limitless. It is not to
generate unnecessary indulgence. The power is to protect the system of justice from
being polluted during the administration of justice under the Code. The High Court can
intervene where it finds the abuse of the process of any court which means, that
wherever an attempt to secure something by abusing the process is located, the same
can be rectified by invoking such power. There has to be a nexus and a direct co-
relation to any existing proceeding, not foreclosed by any other form under the Code, to
the subject matter for which such power is to be exercised.
Application under Section 482 Code of Criminal Procedure lies before the High Court
against an order passed by the court subordinate to it in a pending case/proceedings.
Generally, such powers are used for quashing criminal proceedings in appropriate
cases. Such an application does not lie to initiate criminal proceedings or set the
criminal law in motion. Inherent jurisdiction can be exercised if the order of the
Subordinate Court results in the abuse of the 'process' of the court and/or calls for
interference to secure the ends of justice. The use of word 'process' implies that the
proceedings are pending before the Subordinate Court. When reference is made to the
phrase 'to secure the ends of justice', it is in fact in relation to the order passed by the
Subordinate Court and it cannot be understood in a general connotation of the phrase.
More so, while entertaining such application the proceedings should be pending in the
Subordinate Court. In case it attained finality, the inherent powers cannot be exercised.
Party aggrieved may approach the appellate/revisional forum. Inherent jurisdiction can
be exercised if injustice done to a party, e.g., a clear mandatory provision of law is
overlooked or where different accused in the same case are being treated differently by
the Subordinate Court.
An inherent power is not an omnibus for opening a pandorabox, that too for issues that
are foreign to the main context. The invoking of the power has to be for a purpose that
is connected to a proceeding and not for sprouting an altogether new issue. A power
cannot exceed its own authority beyond its own creation. It is not that a person is
remediless. On the contrary, the constitutional remedy of writs are available. Here, the
High Court enjoys wide powers of prerogative writs as compared to that under Section
482 Code of Criminal Procedure. To secure the corpus of an individual, remedy by way
of habeas corpus is available. For that the High Court should not resort to inherent
powers under Section 482 Code of Criminal Procedure as the Legislature has conferred
separate powers for the same. Needless to mention that Section 97 Code of Criminal
Procedure empowers Magistrates to order the search of a person wrongfully confined. It
is something different that the same court exercising authority can, in relation to the
same subject matter, invoke its writ jurisdiction as well. Nevertheless, the inherent
powers are not to provide universal remedies. The power cannot be and should not be
used to belittle its own existence. One cannot concede anarchy to an inherent power for
that was never the wisdom of the Legislature. To confer un-briddled inherent power
would itself be trenching upon the authority of the Legislature.
V. JURISDICTION of THE BENCH:
4 1 . The court is 'not to yield to spasmodic sentiments to vague and unregulated
benevolence'. The court 'is to exercise discretion informed by tradition, methodized by
analogy, disciplined by system'. This Court in State of Rajasthan v. Prakash Chand
and Ors. MANU/SC/0807/1998 : AIR 1998 SC 1344 observed as under:

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 Judicial authoritarianism is what the proceedings in the instant case smack of.
It cannot be permitted under any guise. Judges must be circumspect and self-
disciplined in the discharge of their judicial functions''It needs no emphasis to
say that all actions of a Judge must be judicious in character. Erosion of
credibility of the judiciary, in the public mind, for whatever reasons, is the
greatest threat to the independence of the judiciary. Eternal vigilance by the
Judges to guard against any such latent internal danger is, therefore, necessary,
lest we 'suffer from self-inflicted mortal wounds'. We must remember that the
Constitution does not give unlimited powers to anyone including the Judge of
all levels. The societal perception of Judges as being detached and impartial
referees is the greatest strength of the judiciary and every member of the
judiciary must ensure that this perception does not receive a setback
consciously or unconsciously. Authenticity of the judicial process rests on
public confidence and public confidence rests on legitimacy of judicial process.
Sources of legitimacy are in the impersonal application by the Judge of
recognised objective principles which owe their existence to a system as
distinguished from subjective moods, predilections, emotions and prejudices. It
is most unfortunate that the order under appeal founders on this touchstone
and is wholly unsustainable.
4 2 . This Court in State of U.P. and Ors. v. Neeraj Chaubey and Ors.
MANU/SC/0714/2010 : (2010) 10 SCC 320, had taken note of various judgments of this
Court including State of Maharashtra v. Narayan Shamrao Puranik
MANU/SC/0044/1982 : AIR 1982 SC 1198;Inder Mani v. Matheshwari Prasad
MANU/SC/1286/1996 : (1996) 6 SCC 587; Prakash Chand (Supra);R. Rathinam v.
State (2002) 2 SCC 391; and Jasbir Singh v. State of Punjab MANU/SC/4529/2006
: (2006) 8 SCC 294, and came to the conclusion that the Chief Justice is the master of
roster. The Chief Justice has full power, authority and jurisdiction in the matter of
allocation of business of the High Court which flows not only from the provisions
contained in Sub-section (3) of Section 51 of the States Reorganisation Act, 1956, but
inheres in him in the very nature of things. The Chief Justice enjoys a special status and
he alone can assign work to a Judge sitting alone and to the Judges sitting in Division
Bench or Full Bench. He has jurisdiction to decide which case will be heard by which
Bench. The Court held that a Judge or a Bench of Judges can assume jurisdiction in a
case pending in the High Court only if the case is allotted to him or them by the Chief
Justice. Strict adherence of this procedure is essential for maintaining judicial discipline
and proper functioning of the Court. No departure from this procedure is permissible.
In Prakash Chand (Supra), this Court dealt with a case wherein the Chief Justice of
Rajasthan High Court had withdrawn a part-heard matter from one Bench and directed it
to be listed before another Bench. However, the earlier Bench still made certain
observations. While dealing with the issue, this Court held that it was the exclusive
prerogative of the Chief Justice to withdraw even a partheard matter from one Bench
and to assign it to any other Bench. Therefore, the observations made by the Bench
subsequent to withdrawal of the case from that Bench and disposal of the same by
another Bench were not only unjustified and unwarranted but also without jurisdiction
and made the Judge coram non-judice.
It is a settled legal proposition that no Judge or a Bench of Judges assumes jurisdiction
unless the case is allotted to him or them under the orders of the Chief Justice.
It has rightly been pointed out by the Full Bench of Allahabad High Court in Sanjay
Kumar Srivastava v. Acting Chief Justice 1996 AWC 644, that if the Judges were

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free to choose their jurisdiction or any choice was given to them to do whatever case
they would like to hear and decide, the machinery of the court could have collapsed and
judicial functioning of the court could have ceased by generation of internal strife on
account of hankering for a particular jurisdiction or a particular case.
43. In view of the above, the legal regime, in this respect emerges to the effect that the
Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge
cannot choose as which matter he should entertain and he cannot entertain a petition in
respect of which jurisdiction has not been assigned to him by the Chief Justice as the
order passed by the court may be without jurisdiction and made the Judge coram non-
judice.
VI. WHEN CBI ENQUIRY CAN BE DIRECTED:
4 4 . I n Secretary, Minor Irrigation and Rural Engineering Services, U.P. and
Ors. v. Sahngoo Ram Arya and Anr. MANU/SC/0441/2002 : AIR 2002 SC 2225, this
Court placed reliance on its earlier judgment in Common Cause, A Registered
Society v. Union of India and Ors. MANU/SC/0437/1999 : (1999) 6 SCC 667 and
held that before directing CBI to investigate, the court must reach a conclusion on the
basis of pleadings and material on record that a prima facie case is made out against
the accused. The court cannot direct CBI to investigate as to whether a person
committed an offence as alleged or not. The court cannot merely proceed on the basis
of 'ifs' and 'buts' and think it appropriate that inquiry should be made by the CBI.
45. In Divine Retreat Centre (Supra), this Court held that the High Court could have
passed a judicial order directing investigation against a person and his activities only
after giving him an opportunity of being heard. It is not permissible for the court to set
the criminal law in motion on the basis of allegations made against a person in violation
of principles of natural justice. A person against whom an inquiry is directed must have
a reasonable opportunity of being heard as he is likely to be adversely affected by such
order and, particularly, when such an order results in drastic consequence of affecting
his reputation.
46. I n D. Venkatasubramaniam and Ors. v. M.K. Mohan Krishnamachari and
Anr. MANU/SC/1627/2009 : (2009) 10 SCC 488, this Court held that an order passed
behind the back of a party is a nullity and liable to be set aside only on this score.
Therefore, a person against whom an order is passed on the basis of a criminal petition
filed against him, he should be impleaded as a Respondent being a necessary party.
47. This Court in Disha v. State of Gujarat and Ors. MANU/SC/0841/2011 : AIR
2011 SC 3168, after considering the various judgments of this Court, particularly, in
Vineet Narain and Ors. v. Union of India and Anr. MANU/SC/0926/1996 : AIR
1996 SC 3386; Union of India v. Sushil Kumar Modi MANU/SC/0062/1998 : (1998)
8 SCC 661; Rajiv Ranjan Singh 'Lalan' (VIII) v. Union of India
MANU/SC/3568/2006 : (2006) 6 SCC 613;Rubabbuddin Sheikh v. State of Gujarat
and Ors. MANU/SC/0024/2010 : AIR 2010 SC 3175; andAshok Kumar Todi v.
Kishwar Jahan and Ors. MANU/SC/0162/2011 : (2011) 3 SCC 758; held that the
court can transfer the matter to the CBI or any other special agency only when it is
satisfied that the accused is a very powerful and influential person or the State
Authorities like high police officials are involved in the offence and the investigation has
not been proceeded with in proper direction or the investigation had been conducted in
a biased manner. In such a case, in order to do complete justice and having belief that
it would lend credibility to the final outcome of the investigation, such directions may

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be issued.
48. Thus, in view of the above, it is evident that a constitutional court can direct the
CBI to investigate into the case provided the court after examining the allegations in the
complaint reaches a conclusion that the complainant could make out prima facie, a case
against the accused. However, the person against whom the investigation is sought, is
to be impleaded as a party and must be given a reasonable opportunity of being heard.
CBI cannot be directed to have a roving inquiry as to whether a person was involved in
the alleged unlawful activities. The court can direct CBI investigation only in exceptional
circumstances where the court is of the view that the accusation is against a person who
by virtue of his post could influence the investigation and it may prejudice the cause of
the complainant, and it is necessary so to do in order to do complete justice and make
the investigation credible.
INSTANT CASES:
49. The present appeals are required to be decided in the light of the aforesaid settled
legal propositions.
50. It is evident from the judgment and order dated 11.5.2007 that Criminal Misc. No.
152-MA of 2007 stood dismissed. The order sheet dated 30.5.2007 reveals that in spite
of the disposal of the said criminal appeal it had been marked therein as 'put up for
further hearing' and the order dated 30.5.2007 reveals the directions given to the Trial
Court to furnish a detailed report as to the measures taken by it to bring the proclaimed
offenders, namely Navneet Singh, Manjit Singh, Manmohan Singh, Gurjant Singh and
Balwant Singh before the Court and the case was adjourned for 2nd July, 2007.
51. Two different orders are available on the record of this case. The aforesaid marking
'put up for further hearing' had been shown in the order sheet dated 11.5.2007, i.e., the
date of disposal of criminal appeal against acquittal. While in another copy, it is not in
the order sheet dated 11.5.2007 but on the order sheet dated 30.5.2007. In view of this
confusion, this Court vide order dated 17.3.2011 has called for the original record. It
appears from the original record that no such order had been passed on 11.5.2007.
More so, there is nothing on record to show as under what circumstances the file was
put up before the Court on 30.5.2007 as no order had ever been passed by the court in
this regard.
The proceedings dated 10.7.2007, 25.7.2007, 31.7.2007, 6.8.2007 and 9.8.2007 show
that the case has been adjourned for short dates. The order dated 5.9.2007 shows that
the Bench headed by Mr. Justice X was furnished with full information regarding
proclaimed offenders by the authorities. However, the case was adjourned for
19.9.2007. The order dated 19.9.2007 reveals that the Bench not only entertained the
application filed by Darshan Singh Multani, IAS (Retd.), but also expressed its anguish
that nothing could be done since the year 1993 by the Chandigarh Police to procure the
presence of the proclaimed offenders. The Police by filing the replies had adopted the
delaying tactics only to derail the process of the court without bringing the proclaimed
offenders to justice. The application filed by the U.T., Chandigarh to file a reply to the
application filed by Darshan Singh Multani was rejected. The CBI was further directed to
investigate the case properly, as no worthwhile steps were being taken by the
Chandigarh Police.
The order dated 5.10.2007 passed by the Bench shows that the CBI had been impleaded
as Respondent in the petition suo motu by the court. The CBI submitted its reply to the
Crl. Misc. Application No. 86287 of 2007 opposing the said application and further

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submitted that the matter be not entrusted to the CBI and petition be dismissed being
devoid of any merit.
The order dated 6.11.2007 reveals that the Court enlarged the scope of investigation by
the CBI by including investigations qua Balwant Singh Bhullar and Manjit Singh.
Relevant part of the order dated 4.7.2008 reads as under:
After going through the status report, it comes out that the encounter of
Navneet Singh son of late Tirath Singh of Qadian was a genuine encounter with
the Rajasthan police. We feel that there is no need to further investigate the
matter in the case of Navneet Singh son of late Tirath Singh. In the case of
Manjit Singh son of late Rattan Singh, no evidence is coming forth and the CBI
is at liberty to drop the investigation of Manjit Singh son of late Rattan Singh, if
it so desires.
Thus, it is clear that the Bench was aware of the fact that two proclaimed offenders had
been killed in encounters. Thus, the CBI was given liberty not to further investigate the
matter in case of Navneet Singh and Manjit Singh, if it so desired.
5 2 . The record reveals that Davinder Pal Singh Bhullar was involved in M.S. Bitta's
assassination attempt and had absconded to Germany on a fake passport. He was
arrested there and was extradited to India and arrested on 18.1.1995. He was tried for
the said offence, convicted in the year 2001 and given the death sentence. It was
confirmed by the High Court as well as by this Court and the review petition also stood
rejected in January 2003. Ever since 2003, he remained silent regarding the
investigation of the alleged disappearances of his father and uncle and suddenly woke
up in the year 2007 when the Bench presided by Mr. Justice X started suo motu hearing
various other matters after the disposal of the criminal appeal against acquittal. The
Court was fully aware that another relative of Bhullar i.e. his father's sister had filed a
case before the High Court in the year 1997, for production of Balwant Singh Bhullar,
the father of Davinder Pal Singh Bhullar above and not for his uncle Manjit Singh. The
High Court had rejected the said petition vide order dated 15.7.1997 and the matter was
not agitated further. Thus, it attained finality.
53. The application of the Punjab Government dated 19.5.2008 bearing Crl. Misc. No.
23084 of 2008 to get itself impleaded in the matter is still pending consideration,
though order dated 23.5.2008 gives a different impression altogether.
54. Admittedly, the application for Leave to Appeal stood disposed of vide judgment
and order dated 11.5.2007. The matter suddenly appeared before the Bench on
30.5.2007 and the Court directed the Police to furnish information regarding the
proclaimed offenders and a detailed report as to the measures taken to procure the
presence of the said proclaimed offenders, namely, Navneet Singh, Manjit Singh,
Manmohan Singh, Gurjant Singh and Balwant Singh so that they may face trial.
However, after hearing the matter on few dates, the Court vide order dated 5.10.2007
closed the chapter of proclaimed offenders observing as under:
Since the police of U.T. Chandigarh has now woken up, that the proclaimed
offenders have to be brought to justice and are making efforts to procure their
presence, we feel that there is no need for the Special Investigation Team
(S.I.T.) The Inspector General of Police, Union Territory, Chandigarh had been
directed by this Court vide order dated 5.9.2007 to set up a Special
Investigation Team (S.I.T.) for this purpose. At this stage, now, there is no

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 need for this Special Investigation Team. The Inspector General of Police,
UT, Chandigarh is directed to disband the Special Investigation Team
and proceed as per law in the normal course to procure the presence of the
proclaimed offenders, who are allegedly in foreign countries.
(Emphasis added)
Therefore, it is evident that the court was very much anxious to know about the
proclaimed offenders, however, after getting certain information, the Court stopped
monitoring the progress in procuring the presence of any of those proclaimed offenders.
By this time, the Court also came to know that applicant Darshan Singh Multani's son
had also been killed. Therefore, the chapter regarding the proclaimed offenders was
closed. There was no occasion for the Court to proceed further with the matter and
entertain the applications under Section 482 Code of Criminal Procedure, filed by
Darshan Singh Multani and Davinder Pal Singh Bhullar. At this stage, the Court started
probing regarding missing persons. The question does arise as to whether applications
under Section 482 Code of Criminal Procedure could be entertained in a disposed of
appeal or could be heard by a Bench to which the roster has not been assigned by
Hon'ble the Chief Justice.
In view of the law referred to hereinabove, the Bench was not competent to entertain
the said applications and even if the same had been filed in the disposed of appeal, the
court could have directed to place the said applications before the Bench dealing with
similar petitions.
55. It is evident from the order dated 30.5.2007 that in spite of the fact that the appeal
stood disposed of vide judgment and order dated 11.5.2007, there appears an order in
the file: 'put up for further hearing'. That means the matter is to be heard by the same
Bench consisting of Judges 'X' and 'A'. However, the matter was listed before another
Bench on 2.7.2007 and the said Bench directed to list the matter before DB-IV after
taking the appropriate order from the Chief Justice. In absence of the Chief Justice, the
senior most Judge passed the order on 5.7.2007 to list the matter before the DB-IV. The
matter remained with the Presiding Judge, though the other Judge changed most of the
time, as is evident from the subsequent order sheets. Order sheet dated 30.5.2007
reveals that it was directed to put up the case for further hearing. Thus, it should have
been heard by the Bench as it was on 30.5.2007.
5 6 . In the counter affidavit filed by Davinder Pal Singh Bhullar, Respondent No. 1
before this Court, it has been stated as under:
W,X, YandZ That in reply to these grounds, it is submitted that the answering
Respondent being behind the bars awaiting his death sentence moved an
application through his counsel in the Hon'ble High Court, when he came to
know from the news item published in the news paper regarding marking of CBI
enquiry in the case of abduction of Balwant Singh Multani an Engineer, son of
Mr. Darshan Singh Multani a retired IAS Officer, who was then a serving officer.
When the answering Respondent found that Mr. Sumedh Singh Saini
has now been taken to task by the Hon'ble Division Bench of Punjab
and Haryana High Court, the answering Respondent also moved the
Hon'ble High Court for seeking enquiry regarding the abduction and
murder of his father and his maternal uncle who were abducted by the
lawless police officials headed by Mr. Sumedh Singh Saini the then
SSP of Chandigarh and the Hon'ble Bench extended the scope of the
enquiry vide order dated 6.11.2007. So the delay is not worthy to be taken

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 note of as the past record of the Mr. Sumedh Singh Saini which has been
mentioned in preliminary submissions clearly shows that he was able to threaten
and overawe an Hon'ble Punjab and Haryana High Court Judge in year 1995 and
even though he has been charged by a court for abduction for murder of three
individuals in year 1995, but the trial of the case is still pending in the year
2008. So throughout this period the manner in which Mr. Sumedh
Singh Saini has been able to subvert judicial processes did not allow
the Respondent to move a court of law and now when an Hon'ble
Division Bench has shown courage to uphold the majesty of law, that
the Respondent also gathered his courage to move the Hon'ble High
Court, with the hope that at some time justice would prevail.
(Emphasis added)
5 7 . So far as the issue in respect of the proclaimed complainants/offenders is
concerned, the document was before the High Court to show that a letter had been sent
by the U.S Department of Justice Federal Wing of Investigation to the CBI disclosing
that Manmohan Jit Singh had died on December 2006. Thus, information in respect of
one of the proclaimed offenders was with the court. The judgment of the Trial Court
was before the High Court under challenge. Thus, the High Court could have taken note
of the proclaimed offender and there was no new material that came before the High
Court on the basis of which proceedings could be revived. The charge sheet in the Trial
Court itself revealed that two persons had died. It appears that the State counsel also
failed to bring these facts to the notice of the court.
5 8 . The impugned order dated 5.10.2007 though gives an impression that the High
Court was trying to procure the presence of the proclaimed offenders but, in fact, it was
to target the police officers, who had conducted the inquiry against Mr. Justice X. The
order reads that particular persons were eliminated in a false encounter by the police
and it was to be ascertained as to who were the police officers responsible for it, so that
they could be brought to justice.
59. There could be no justification for the Bench concerned to entertain applications
filed under Section 482 Code of Criminal Procedure as miscellaneous applications in a
disposed of appeal. The law requires that the Bench could have passed an appropriate
order to place those applications before the Bench hearing 482 Code of Criminal
Procedure petitions or place the matters before the Chief Justice for appropriate orders.
60. As the High Court after rejecting the applications for leave to appeal had passed
several orders to procure the presence of the proclaimed offenders so that they could be
brought to justice, neither the State of Punjab nor Mr. S.S. Saini could be held to be the
persons aggrieved by such orders and therefore, there could be no question of raising
any protest on their behalf for passing such orders even after disposal of the application
for leave to appeal as such orders were rather in their favour. The Appellants became
aggrieved only and only when the High Court entertained the applications filed under
Section 482 Code of Criminal Procedure for tracing out the whereabouts of certain
persons allegedly missing for the past 20 years. Such orders did not have any
connection with the incident in respect of which the application for leave to appeal had
been entertained and rejected. An application for leave to appeal that has been
dismissed against an order of acquittal cannot provide a platform for an investigation in
a subject matter that is alien and not directly concerned with the subject matter of
appeal.
Mr. K.N. Balgopal, learned Senior counsel appearing for the Respondents has submitted

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that the issue of bias must be agitated by a party concerned at the earliest and it is not
permissible to raise it at such a belated stage. The legal proposition in this regard is
clear that if a person has an opportunity to raise objections and fails to do so, it would
amount to waiver on his part. However, such person can raise objections only if he is
impleaded as a party-Respondent in the case and has an opportunity to raise an
objection on the ground of bias. In the instant case, neither the State of Punjab nor Mr.
S.S. Saini have been impleaded as Respondents. Thus, the question of waiver on the
ground of bias by either of them does not arise.
61. Undoubtedly, in respect of such missing persons earlier habeas corpus petitions
had been filed by the persons concerned in 1991 and 1997 which had been dealt with
by the courts in accordance with law. The writ petition for habeas corpus filed by Mrs.
Jagir Kaur in respect of Balwant Singh Bhullar had been dismissed in 1997 only on the
ground of delay. We fail to understand how a fresh petition in respect of the same
subject matter could be entertained after 10 years of dismissal of the said writ petition.
62. A second writ petition for issuing a writ of habeas corpus is barred by principles of
res judicata. The doctrine of res judicata may not apply in case a writ petition under
Article 32 of the Constitution is filed before this Court after disposal of a habeas corpus
writ petition under Article 226 of the Constitution by the High Court. However, it is not
possible to re-approach the High Court for the same relief by filing a fresh writ petition
for the reason that it would be difficult for the High Court to set aside the order made
by another Bench of the same court. In case, a petition by issuing Writ of Habeas
Corpus is dismissed by the High Court and Special Leave Petition against the same is
also dismissed, a petition under Article 32 of the Constitution, seeking the same relief
would not be maintainable.
(See: Ghulam Sarwar v. Union of India and Ors. MANU/SC/0062/1966 : AIR 1967
SC 1335; Nazul Ali Molla, etc. v. State of West Bengal : 1969 (3) SCC 698;
Niranjan Singh v. State of Madhya Pradesh MANU/SC/0194/1972 : AIR 1972 SC
2 2 1 5 ; Har Swarup v. The General Manager, Central Railway and Ors.
MANU/SC/0045/1974 : AIR 1975 SC 202;T.P. Moideen Koya v. Government of
Kerala and Ors. AIR 2004 SC 4733; and K. Vidya Sagar v. State of Uttar Pradesh
and Ors. MANU/SC/0407/2005 : AIR 2005 SC 2911).
63. There may be certain exceptions to the rule that a person was not aware of the
correct facts while filing the first petition or the events have arisen subsequent to
making of the first application. The Court must bear in mind that doctrine of res judicata
is confined generally to civil action but inapplicable to illegal action and fundamentally
lawless order. A subsequent petition of habeas corpus on fresh grounds which were not
taken in the earlier petition for the same relief may be permissible. (Vide: Lalubhai
Jogibhai Patel v. Union of India and Ors. MANU/SC/0216/1980 : AIR 1981 SC 728;
Ajit Kumar Kaviraj v. Distt. Magistrate, Birbhum and Anr. MANU/SC/0407/1974 :
AIR 1974 SC 1917; and Sunil Dutt v. Union of India and Ors. MANU/SC/0262/1981
: AIR 1982 SC 53).
64. While dealing with a similar issue, this Court in Srikant v. District Magistrate,
Bijapur and Ors. MANU/SC/8706/2006 : (2007) 1 SCC 486 observed as under:
Whether any new ground has been taken, has to be decided by the court
dealing with the application and no hard-and-fast rule can be laid down in that
regard. But one thing is clear, it is the substance and not the form which is
relevant. If some surgical changes are made with the context, substance and

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 essence remaining the same, it cannot be said that challenge is on new or fresh
grounds.
6 5 . Thus, in view of the above, the law in the issue emerges that a case is to be
decided on its facts taking into consideration whether really new issues have been
agitated or the facts raised in subsequent writ petition could not be known to the writ
Petitioner while filing the earlier writ petition.
Be that as it may, the parties concerned had not filed fresh writ petitions, rather chosen,
for reasons best known to them applications under Section 482 Code of Criminal
Procedure, which could not have been entertained.
66. A large number of documents have been submitted to the court under sealed cover
by the State of Punjab on the direction of this Court. We have gone through the said
documents and suffice is to mention here that Shri Sumedh Singh Saini, IPS had
conducted the enquiry in 2002 against Mr. Justice X on the direction of the Chief Justice
of the Punjab and Haryana High Court on the alleged appointment of certain
judicial/executive officers in Punjab through Shri Ravi Sandhu, Chairman of the Public
Service Commission. Shri S.S. Saini had filed reports against Mr. Justice X. The Chief
Justice of Punjab and Haryana High Court confronted Mr. Justice X with the said reports.
On the basis of the said reports, the Chief Justice of the High Court submitted his report
to the Chief Justice of India, on the basis of which a Committee to investigate the
matter further was appointed. This Committee even examined one Superintendent of
Police of the intelligence wing who had worked directly under Shri S.S. Saini while
conducting the enquiry.
67. The High Court has adopted an unusual and unwarranted procedure, not known in
law, while issuing certain directions. The court not only entertained the applications
filed by Shri Davinder Pal Singh Bhullar and Darshan Singh Multani in a disposed of
appeal but enlarged the scope of CBI investigation from proclaimed offenders to other
missing persons. The court directed the CBI to treat affidavits handed over by the
applicant Shri Bhullar who admittedly had inimical relation with Shri S.S. Saini, as
statement of eye-witnesses. The court further directed the CBI to change the names of
witnesses to witness (A), (B) or (C) and record their statements under Section 164
Code of Criminal Procedure so that they could not resile at a later stage. We fail to
understand how the court could direct the CBI to adopt such an unwarranted course.
68. The High Court accepted certain documents submitted by Shri R.S. Bains, advocate,
as is evident from the order dated 22.8.2007 and it was made a part of the record
though Shri Bains had not been a counsel engaged in the case nor he had been
representing any of the parties in the case.
69. When the matter came up for hearing on 2.4.2008, in spite of the fact that the
matter was heard throughout by a particular Division Bench, Mr. Justice X alone held
the proceedings, and accepted the status report of the CBI sitting singly, as the
proceedings reveal that the other Judge was not holding court on that day. The order
sheet dated 2.4.2008 reads as under:
Status report, which has been presented by the CBI in Court in a sealed cover,
is taken in custody.
Hon'ble Mr. Justice Harbans Lal, who has to hear the case along with me, as it
is a part-heard case, is not holding court today.

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 To come up on 4.4.2008.
Sd/-
Judge
70. The FIR unquestionably is an inseparable corollary to the impugned orders which
are a nullity. Therefore, the very birth of the FIR, which is a direct consequence of the
impugned orders cannot have any lawful existence. The FIR itself is based on a
preliminary enquiry which in turn is based on the affidavits submitted by the applicants
who had filed the petitions under Section 482 Code of Criminal Procedure.
71. The order impugned has rightly been challenged to be a nullity at least on three
grounds, namely, judicial bias; want of jurisdiction by virtue of application of the
provisions of Section 362 Code of Criminal Procedure coupled with the principles of
constructive res judicata; and the Bench had not been assigned the roster to entertain
petitions under Section 482 Code of Criminal Procedure. The entire judicial process
appears to have been drowned to achieve a motivated result which we are unable to
approve of.
72. It is a settled legal proposition that if initial action is not in consonance with law,
all subsequent and consequential proceedings would fall through for the reason that
illegality strikes at the root of the order. In such a fact-situation, the legal maxim
'sublato fundamento cadit opus' meaning thereby that foundation being removed,
structure/work falls, comes into play and applies on all scores in the present case.
73. In Badrinath v. State of Tamil Nadu and Ors. MANU/SC/0624/2000 : AIR 2000
SC 3243; and State of Kerala v. Puthenkavu N.S.S. Karayogam and Anr.: (2001)
10 SCC 191, this Court observed that once the basis of a proceeding is gone, all
consequential acts, actions, orders would fall to the ground automatically and this
principle is applicable to judicial, quasi-judicial and administrative proceedings equally.
74. Similarly in Mangal Prasad Tamoli (dead) by Lrs. v. Narvadeshwar Mishra
(dead) by Lrs. and Ors. MANU/SC/0153/2005 : (2005) 3 SCC 422, this Court held
that if an order at the initial stage is bad in law, then all further proceedings,
consequent thereto, will be non est and have to be necessarily set aside.
7 5 . I n C. Albert Morris v. K. Chandrasekaran and Ors. MANU/SC/2509/2005 :
(2006) 1 SCC 228, this Court held that a right in law exists only and only when it has a
lawful origin.
(See also: Upen Chandra Gogoi v. State of Assam and Ors. MANU/SC/0225/1998 :
(1998) 3 SCC 381; Satchidananda Misra v. State of Orissa and Ors.
MANU/SC/0774/2004 : (2004) 8 SCC 599;Regional Manager, SBI v. Rakesh
Kumar Tewari MANU/SC/0044/2006 : (2006) 1 SCC 530; andRitesh Tewari and
Anr. v. State of U.P. and Ors. MANU/SC/0742/2010 : AIR 2010 SC 3823).
7 6 . Thus, in view of the above, we are of the considered opinion that the orders
impugned being a nullity, cannot be sustained. As a consequence, subsequent
proceedings/orders/FIR/ investigation stand automatically vitiated and are liable to be
declared non est.
77. The submission advanced on behalf of the Respondents that as the Special Leave
Petition filed against the impugned judgment by some other party, stood dismissed by
this Court, these matters also have to be dismissed at the threshold without entering
into merit, is not worth acceptance.

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The issue as to whether the dismissal of the special leave petition by this Court in
limine, i.e., by a non-speaking order would amount to affirmation or confirmation or
approval of the order impugned before this Court, has been considered time and again.
Thus, the issue is no more res integra.
A large number of judicial pronouncements made by this Court leave no manner of
doubt that the dismissal of the Special Leave Petition in limine does not mean that the
reasoning of the judgment of the High Court against which the Special Leave Petition
had been filed before this Court stands affirmed or the judgment and order impugned
merges with such order of this Court on dismissal of the petition. It simply means that
this Court did not consider the case worth examining for a reason, which may be other
than merit of the case. An order rejecting the Special Leave Petition at the threshold
without detailed reasons, therefore, does not constitute any declaration of law or a
binding precedent.
The doctrine of res judicata does not apply, if the case is entertained afresh at the
behest of other parties. No inference can be drawn that by necessary implication, the
contentions raised in the special leave petition on the merits of the case have been
rejected. So it has no precedential value.
(See: The Workmen of Cochin Port Trust v. The Board of Trustees of the Cochin
Port Trust and Anr. MANU/SC/0291/1978 : AIR 1978 SC 1283; Ahmedabad
Manufacturing and Calico Printing Company Ltd. v. The Workmen and Anr.
MANU/SC/0319/1981 : AIR 1981 SC 960;Indian Oil Corporation Ltd. v. State of
Bihar and Ors. MANU/SC/0572/1986 : AIR 1986 SC 1780;Yogendra Narayan
Chowdhury and Ors. v. Union of India and Ors. AIR 1996 SC 751; Union of India
and Anr. v. Sher Singh and Ors. MANU/SC/0419/1997 : AIR 1997 SC 1796;M/s
Sun Export Corporation, Bombay v. Collector of Customs, Bombay and Anr.
MANU/SC/0703/1997 : AIR 1997 SC 2658;Kunhayammed and Ors. v. State of
Kerala and Anr. MANU/SC/0432/2000 : AIR 2000 SC 2587;Saurashtra Oil Mills
Association, Gujarat v. State of Gujarat and Anr. MANU/SC/0110/2002 : AIR 2002
SC 1130; Union of India and Ors. v. Jaipal Singh AIR 2004 SC 1005; and Delhi
Development Authority v. Bhola Nath Sharma (dead) by L.Rs. and Ors.
MANU/SC/1038/2010 : AIR 2011 SC 428).
CONCLUSIONS:
7 8 . The error in the impugned orders of the High Court transgresses judicious
discretion. The process adopted by the High Court led to greater injustice than securing
the ends of justice. The path charted by the High Court inevitably reflects a biased
approach. It was a misplaced sympathy for a cause that can be termed as being
inconsistent to the legal framework. Law is an endless process of testing and retesting
as said by Justice Cardozo in his conclusion of the Judicial Process, ending in a constant
rejection of the dross and retention of whatever is pure and sound. The multi-
dimensional defective legal process adopted by the court below cannot be justified on
any rational legal principle. The High Court was swayed away by considerations that are
legally impermissible and unsustainable.
7 9 . In view of the above, the appeals succeed and are accordingly allowed. The
impugned orders challenged herein are declared to be nullity and as a consequence, the
FIR registered by the CBI is also quashed.
80. However, it is open to the applicants who had filed the petitions under Section 482
Code of Criminal Procedure to take recourse to fresh proceedings, if permissible in law.

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