In the case at hand, the High Court on the administrative
side had transferred the case to the learned Sessions Judge by
which it has conferred jurisdiction on the trial court which has
the jurisdiction to try the sessions case under CrPC. Thus, it
has done so as it has, as a matter of fact, found that there was
no judgment on record. There is no illegality. Be it noted, the
Division Bench in the appeal preferred at the instance of the
present appellants thought it appropriate to quash the order
as there is no judgment on record but a mere order-sheet. In a
piquant situation like the present one, we are disposed to
think that the High Court was under legal obligation to set
aside the order as it had no effect in law. The High Court has
correctly done so as it has the duty to see that sanctity of
justice is not undermined. The High Court has done so as it
has felt that an order which is a mere declaration of result
without the judgment should be nullified and become extinct.
26. The case at hand constrains us to say that a trial Judge
should remember that he has immense responsibility as he
has a lawful duty to record the evidence in the prescribed
manner keeping in mind the command postulated in
Section 309 of the CrPC and pronounce the judgment as
provided under the Code. A Judge in charge of the trial has to
be extremely diligent so that no dent is created in the trial and
in its eventual conclusion. Mistakes made or errors committed
are to be rectified by the appellate court in exercise of “error
jurisdiction”. That is a different matter. But, when a situation
like the present one crops up, it causes agony, an unbearable
one, to the cause of justice and hits like a lightning in a
cloudless sky. It hurts the justice dispensation system and no
one, and we mean no one, has any right to do so. The High
Court by rectifying the grave error has acted in furtherance of
the cause of justice. The accused persons might have felt
delighted in acquittal and affected by the order of rehearing,
but they should bear in mind that they are not the lone
receivers of justice. There are victims of the crime. Law serves
both and justice looks at them equally. It does not tolerate
that the grievance of the victim should be comatosed in this
manner.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 32-33 OF 2017
(@ S.L.P. (Crl.) Nos. 7694-7695 of 2016)
Ajay Singh Vs State of Chhattisgarh and Anr.
Dated:January 06, 2017
Dipak Misra, J.
Performance of judicial duty in the manner prescribed
by law is fundamental to the concept of rule of law in a
democratic State. It has been quite often said and, rightly so,
that the judiciary is the protector and preserver of rule of law.
Effective functioning of the said sacrosanct duty has been
entrusted to the judiciary and that entrustment expects the
courts to conduct the judicial proceeding with dignity,
objectivity and rationality and finally determine the same in
accordance with law. Errors are bound to occur but there
cannot be deliberate peccability which can never be
countenanced. The plinth of justice dispensation system is
founded on the faith, trust and confidence of the people and
nothing can be allowed to contaminate and corrode the same.
A litigant who comes to a court of law expects that inherent
and essential principles of adjudication like adherence to
doctrine of audi alteram partem, rules pertaining to
fundamental adjective and seminal substantive law shall be
followed and ultimately there shall be a reasoned verdict.
When the accused faces a charge in a court of law, he expects
a fair trial. The victim whose grievance and agony have given
rise to the trial also expects that justice should be done in
accordance with law. Thus, a fair trial leading to a judgment is
necessitous in law and that is the assurance that is thought of
on both sides. The exponent on behalf of the accused cannot
be permitted to command the trial as desired by his
philosophy of trial on the plea of fair trial and similarly, the
proponent on behalf of the victim should not always be
allowed to ventilate the grievance that his cause has not been
fairly dealt with in the name of fair trial. Therefore, the concept
of expediency and fair trial is quite applicable to the accused
as well as to the victim. The result of such trial is to end in a
judgment as required to be pronounced in accordance with
law. And, that is how the stability of the creditability in the
institution is maintained.
2. The above prefatory note has relevance, a significant
one, to the case at hand. To appreciate the controversy,
certain facts are requisite to be noted. The marriage between
the appellant No. 1 and Ruby Singh, the deceased, was
solemnized according to Hindu rites on 22.06.1997. She
committed suicide at her matrimonial home on 01.12.1998.
Kameshwar Pratap lodged FIR No. 194/98 at Police Station
Lakhanpur, Distt. Sarguja against Ajay Singh (husband),
Sureshwar Singh (father-in-law), Dhanwanti Devi
(mother-in-law) and Kiran Singh (sister-in-law) for offences
punishable under Section 304B, 34 of the Indian Penal Code
(IPC) and other offences. After the criminal law was set in
motion, investigating agency after commencement of
investigation and after completion thereof laid charge sheet
under Sections 304B, 498A/34, 328 IPC read with Section 3/4
of Dowry Prohibition Act, 1961 against the accused persons
before the Court of Chief Judicial Magistrate, Ambikapur, who,
in turn, committed the matter to the Court of Session and
eventually the matter was tried by Second Additional Sessions
Judge, Ambikapur. We are, in the present case, not concerned
with how many witnesses were examined by the trial court or
how the trial continued. What needs to be stated is that the
learned trial Judge passed an order in the order sheet that
recorded that the accused persons had been acquitted as per
the judgment separately typed, signed and dated.
3. A member of the State Bar Council sent a complaint to
the Registry of the High Court of Chhattisgarh, Bilaspur
alleging that learned trial judge had acquitted the accused
persons but no judgment had been rendered. The Registrar
(Vigilance) of the High Court issued a memorandum to the
District and Sessions Judge, Surguja at Ambikapur on
18.02.2008 to inquire into the matter and submit a report.
The concerned District and Sessions Judge submitted the
report to the High Court on the same date stating that no
judgments were found in the records of such cases. It has also
been brought to the notice of the High Court that in sessions
trials being Sessions Trial No. 148 of 1999 and Sessions Trial
No. 71 of 1995 though the same trial judge had purportedly
delivered the judgments but they were not available on record
as the judgments had not actually been dictated, dated or
signed. Thereafter the matter was placed before the Full Court
of the High Court on 04.03.2008 on which date a resolution
was passed placing the concerned trial judge under
suspension in contemplation of a departmental inquiry. At the
same time, the Full Court took the decision to transfer the
cases in question from the concerned trial judge to the file of
District and Sessions Judge, Surguja at Ambikapur for
rehearing and disposal. It is worthy to note here that the
concerned officer was put under suspension and after
completion of inquiry was imposed with the punishment of
compulsory retirement on 22.03.2011. We make it clear that
we are not concerned with the said punishment in the case.
4. After the decision was taken for transferring the cases by
the Full Court for rehearing, three writ petitions forming the
subject matter of Writ Petition (Criminal) Nos. 2796 of 2008,
2238 of 2008 and 276 of 2010 were filed. The accused in
Sessions Trial No. 148 of 1999 filed Writ Petition (Criminal)
Nos. 2796 of 2008 and 2238 of 2008 and accused in Sessions
Trial No. 71 of 1995 filed the other writ petition, that is, Writ
Petition (Criminal) No. 276 of 2010.
5. The controversy really centers around two issues,
namely, whether the learned trial judge had really pronounced
the judgment of acquittal on 31.10.2007 and whether the High
Court could have in exercise of its administrative power
treated the trial as pending and transferred the same from the
Court of Second Additional Sessions Judge, Ambikapur to the
Court of District and Sessions Judge, Surguja at Ambikapur
for rehearing and disposal.
6. It is urged by learned counsel for the appellants that the
nature of order passed by the learned trial judge would
amount to a judgment and in the absence of any appeal
preferred by the State there could not have been a direction for
rehearing of the sessions case as such action runs contrary to
the provisions of CrPC. Learned counsel would submit that
the High Court in exercise of power of the superintendence
could not have transferred the case treating it as pending on
its administrative side. To bolster the said submission he has
placed reliance on Ouseph Mathai & others v. M. Abdul
Khadir1
, Essen Deinki v. Rajiv Kumar2
and Surya Dev Rai
v. Ram Chander Rai and others3
.
7. Mr. C.D. Singh, learned counsel for the State submitted
that the approach of the High Court is absolutely infallible and
does not warrant any interference by this Court.
1
(2002) 1 SCC 319
2
(2002) 8 SCC 400
3
(2003) 6 SCC 675Page 8
8
8. To appreciate the controversy, it is necessary to refer to
the order sheet in Sessions Trial No. 71 of 1995. The trial
judge on 28.1.2008 had passed the following order:-
“28.1.2008:
State represented by Shri Rajesh Tiwari, A.G.P.
Accused along with their Counsel Shri Arvind
Mehta, Advocate
The judgment has been typed separately. The same
has been dated, signed and announced.
Resultantly, Accused T.P. Ratre is acquitted of the
charge under Section 306 IPC.
A copy of this judgment be sent to the District
Magistrate, Surguja (Ambikapur) through A.G.P.
Proceedings completed.
The result be noted in the register and the record be
sent to the Record Room.”
Be it noted, in the other Sessions Trial, i.e., Sessions
Trial No. 148 of 1999 almost similar order has been passed.
Be it stated, apart from the aforesaid order, as per the enquiry
conducted by the learned District Judge, there was nothing on
record. The trial judge had not dictated the order in open
court. In such a situation, it is to be determined whether the
judgment had been delivered by the trial judge or not.
9. Chapter XVIII of CrPC provides for trial before a court of
session. Section 227 empowers the trial judge to discharge the
accused after hearing the submissions of the accused and the
prosecution and on being satisfied that there is no sufficient
ground for proceeding against the accused. The key words of
the Section are “not sufficient ground for proceeding against
the accused”. Interpreting the said provision, the Court in
P. Vijayan v. State of Kerala and another4
has held that
the Judge is not a mere post office to frame the charge at the
behest of the prosecution, but has to exercise his judicial mind
to the facts of the case in order to determine whether a case
for trial has been made out by the prosecution. In assessing
this fact, it is not necessary for the court to enter into the pros
and cons of the matter or into a weighing and balancing of
evidence and probabilities which is really the function of the
court, after the trial starts. At the stage of Section 227, the
Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding
against the accused. In other words, the sufficiency of ground
4
(2010) 2 SCC 398
would take within its fold the nature of the evidence recorded
by the police or the documents produced before the court
which ex facie disclose that there are suspicious
circumstances against the accused so as to frame a charge
against him.
10. Section 228 empowers the trial judge to frame the
charge. Section 229 provides if the accused pleads guilty, the
Judge shall record the plea and may, in his discretion, convict
him thereon. Section 230 provides for date for prosecution
evidence. Section 231 deals with the evidence for prosecution.
Section 232 provides that if, after taking the evidence for the
prosecution, examining the accused and hearing the
prosecution the defence on the point, the Judge considers that
there is no evidence that the accused committed the offence,
the Judge shall record an order of acquittal. Section 233
stipulates that where the accused is not acquitted under
Section 232 he shall be called upon to enter on his defence
and adduce any evidence he may have in support thereof.
Section 234 provides for arguments. Section 235 which
provides for judgment of acquittal or conviction reads as
follows:-
“235. Judgment of acquittal or conviction. – (1)
After hearing arguments and points of law (if any),
the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the
provisions of section 360, hear the accused on the
question of sentence, and then pass sentence on
him according to law.”
11. Chapter XXIV provides for general provisions as to
inquiries and trials. Chapter XXVII deals with the judgment.
Section 353 lays down the procedure for pronouncement of
the judgment. The said provision reads as follows:-
“353. Judgment -
(1) The judgment in every trial in any Criminal
Court of original jurisdiction shall be pronounced in
open Court by the presiding officer immediately
after the termination of the trial or at some
subsequent time of which notice shall be given to
the parties or their pleaders,-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment
and explaining the substance of the judgment in a
language which is understood by the accused or his
pleader.
(2) Where the judgment is delivered under clause (a)
of sub-section (1), the presiding officer shall cause it
to be taken down in short-hand, sign the transcript
and every page thereof as soon as it is made ready,Page 12
12
and write on it the date of the delivery of the
judgment in open Court.
(3) Where the judgment or the operative part thereof
is read out under clause (b) or clause (c) of subsection
(1), as the case may be, it shall be dated and
signed by the presiding officer in open Court, and if
it is not written with his own hand, every page of
the judgment shall be signed by him.
(4) Where the judgment is pronounced in the
manner specified in clause (c) of sub-section (1), the
whole judgment or a copy thereof shall be
immediately made available for the perusal of the
parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be brought
up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be
required by the Court to attend to hear the
judgment pronounced, except where his personal
attendance during the trial has been dispensed with
and the sentence is one of fine only or he is
acquitted: Provided that, where there are more
accused than one, and one or more of them do not
attend the Court on the date on which the judgment
is to be pronounced, the presiding officer may, in
order to avoid undue delay in the disposal of the
case, pronounce the judgment notwithstanding
their absence.
(7) No judgment delivered by any Criminal Court
shall be deemed to be invalid by reason only of the
absence of any party or his pleader on the day or
from the place notified for the delivery thereof, or of
any omission to serve, or defect in serving, on the
parties or their pleaders, or any of them, the notice
of such day and place.
(8) Nothing in this section shall be construed to
limit in any way the extent of the provisions of
section 465.”Page 13
13
12. Section 354 provides for language and contents of the
judgment. The said provision reads as follows:-
“354. Language and contents of judgment.-
(1) Except as otherwise expressly provided by this
Code, every judgment referred to in section 353,-
(a) shall be written in the language of the Court;
(b) shall contain the point or points for
determination, the decision thereon and the reasons
for the decision;
(c) shall specify the offence (if any) of which, and the
section of the Indian Penal Code (45 of 1860 ) or
other law under which, the accused is convicted
and the punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the
offence of which the accused is acquitted and direct
that he be set at liberty.
(2) When the conviction is under the Indian Penal
Code (45 of 1860 ), and it is doubtful under which
of two sections, or under which of two parts of the
same section, of that Code the offence falls, the
Court shall distinctly express the same, and pass
judgment in the alternative.
(3) When the conviction is for an offence punishable
with death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the
special reasons for such sentence.
(4) When the conviction is for an offence punishable
with imprisonment for a term of one year or more,
but the Court imposes a sentence of imprisonment
for a term of less than three months, it shall record
its reasons for awarding such sentence, unless the
sentence is one of imprisonment till the rising of thePage 14
14
Court or unless the case was tried summarily under
the provisions of this Code.
(5) When any person is sentenced to death, the
sentence shall direct that he be hanged by the neck
till he is dead.
(6) Every order under section 117 or sub-section (2)
of section 138 and every final order made under
section 125, section 145 or section 147 shall
contain the point or points for determination, the
decision thereon and the reasons for the decision.”
13. Section 362 has the heading “Court not to alter
judgment.” The said provision is as follows:-
“362. Court not to alter judgment.―Save as
otherwise provided by this Code or by any other law
for the time being in force, no Court, when it has
signed its judgment or final order disposing of a
case, shall alter or review the same except to
correct a clerical or arithmetical error.”
14. Interpreting the said provision in the context of exercise
of inherent power of the High Court under Section 482 CrPC
this Court in Smt. Sooraj Devi v. Pyare Lal and another5
held thus:-
“5. The appellant points out that he invoked the
inherent power of the High Court saved by Section
482 of the Code and that notwithstanding the
prohibition imposed by Section 362 the High Court
had power to grant relief. Now it is well settled that
the inherent power of the court cannot be exercised
for doing that which is specifically prohibited by the
5
(1981) 1 SCC 500Page 15
15
Code (Sankatha Singh v. State of U.P.
6
). It is true
that the prohibition in Section 362 against the court
altering or reviewing its judgment is subject to what
is “otherwise provided by this Court or by any other
law for the time being in force”. Those words,
however, refer to those provisions only where the
court has been expressly authorised by the Code or
other law to alter or review its judgment. The
inherent power of the court is not contemplated by
the saving provision contained in Section 362 and,
therefore, the attempt to invoke that power can be
of no avail.”
We have referred to the aforesaid decision to illustrate
that the CrPC confers absolute sanctity to the judgment once
it is pronounced. It does not conceive of any kind of
alteration.
15. Section 363 provides copy of judgment to be given to the
accused and other persons. Section 364 provides for the
situation where the judgment requires to be translated.
16. It is apposite to note that though CrPC does not define
the term “judgment”, yet it has clearly laid down how the
judgment is to be pronounced. The provisions clearly spell out
that it is imperative on the part of the learned trial judge to
pronounce the judgment in open court by delivering the whole
6 AIR 1962 SC 1208Page 16
16
of the judgment or by reading out the whole of the judgment or
by reading out the operative part of the judgment and
explaining the substance of the judgment in a language which
is understood by the accused or his pleader.
17. We have already noted that the judgment was not
dictated in open court. Code of Criminal Procedure provides
reading of the operative part of the judgment. It means that
the trial judge may not read the whole of the judgment and
may read operative part of the judgment but it does not in any
way suggest that the result of the case will be announced and
the judgment would not be available on record. Nonavailability
of judgment, needless to say, can never be a
judgment because there is no declaration by way of
pronouncement in the open court that the accused has been
convicted or acquitted. A judgment, as has been always
understood, is the expression of an opinion after due
consideration of the facts which deserve to be determined.
Without pronouncement of a judgment in the open court,
signed and dated, it is difficult to treat it as a judgment ofPage 17
17
conviction as has been held in Re. Athipalayan and Ors7
.
As a matter of fact, on inquiry, the High Court in the
administrative side had found there was no judgment available
on record. Learned counsel for the appellants would submit
that in the counter affidavit filed by the High Court it has been
mentioned that an incomplete typed judgment of 14 pages till
paragraph No. 19 was available. The affidavit also states that
it was incomplete and no page had the signature of the
presiding officer. If the judgment is not complete and signed,
it cannot be a judgment in terms of Section 353 CrPC. It is
unimaginable that a judgment is pronounced without there
being a judgment. It is gross illegality. In this context, we may
refer to a passage from State of Punjab and others v.
Jagdev Singh Talwandi8
wherein expressing the opinion for
the Constitution Bench, Chandrachud, C.J. observed thus:-
“30. We would like to take this opportunity to point
out that serious difficulties arise on account of the
practice increasingly adopted by the High Courts, of
pronouncing the final order without a reasoned
judgment. It is desirable that the final order which
the High Court intends to pass should not be
7 AIR 1960 Mad 507
8
(1984) 1 SCC 596Page 18
18
announced until a reasoned judgment is ready for
pronouncement. Suppose, for example, that a final
order without a reasoned judgment is announced by
the High Court that a house shall be demolished, or
that the custody of a child shall be handed over to
one parent as against the other, or that a person
accused of a serious charge is acquitted, or that a
statute is unconstitutional or, as in the instant
case, that a detenu be released from detention. If
the object of passing such orders is to ensure
speedy compliance with them, that object is more
often defeated by the aggrieved party filing a special
leave petition in this Court against the order passed
by the High Court. That places this Court in a
predicament because, without the benefit of the
reasoning of the High Court, it is difficult for this
Court to allow the bare order to be implemented.
The result inevitably is that the operation of the
order passed by the High Court has to be stayed
pending delivery of the reasoned judgment.
31. It may be thought that such orders are passed
by this Court and therefore there is no reason why
the High Courts should not do the same. We would
like to point out respectfully that the orders passed
by this Court are final and no appeal lies against
them. The Supreme Court is the final court in the
hierarchy of our courts. Besides, orders without a
reasoned judgment are passed by this Court very
rarely, under exceptional circumstances. Orders
passed by the High Court are subject to the
appellate jurisdiction of this Court under Article 136
of the Constitution and other provisions of the
concerned statutes. We thought it necessary to
make these observations in order that a practice
which is not very desirable and which achieves no
useful purpose may not grow out of its present
infancy.”Page 19
19
18. We have reproduced the aforesaid two passages as the
larger Bench has made such observations with regard to
unreasoned judgments passed by the High Courts. The
learned Chief Justice had noted that the practice is not
desirable and does not achieve any useful purpose and it
should not grow out of its present infancy. Despite the said
observations, sometimes this Court comes across judgments
and orders where the High Courts have announced the result
of the case by stating “reasons to follow”. We can only reiterate
the observations of the Constitution Bench.
19. Having stated that, as is evincible in the instant case,
the judgment is not available on record and hence, there can
be no shadow of doubt that the declaration of the result
cannot tantamount to a judgment as prescribed in the CrPC.
That leads to the inevitable conclusion that the trial in both
the cases has to be treated to be pending.
20. The next issue that emerges for consideration is whether
the High Court on its administrative side could have
transferred the case from the Second Additional SessionsPage 20
20
Judge, Ambikapur to the Court of District and Sessions
Judge, Surguja at Ambikapur. In this regard, it is suffice to
understand the jurisdiction and authority conferred under the
Constitution on the High Court in the prescription of power of
superintendence under Article 227. Article 227 of the
Constitution reads as follows:-
“227. Power of superintendence over all courts
by the High Court:-(1) Every High Court shall have
superintendence over all courts and tribunals
throughout the territories in relation to which it
exercises jurisdiction.
(2) Without prejudice to the generality of the
foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe
forms for regulating the practice and proceedings of
such courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such
courts
(3) The High Court may also settle tables of fees to
be allowed to the sheriff and all clerks and officers
of such courts and to attorneys, advocates and
pleaders practising therein:
Provided that any rules made, forms prescribed
or tables settled under clause (2) or clause (3) shall
not be inconsistent with the provision of any law for
the time being in force, and shall require the
previous approval of the Governor
(4) Nothing in this article shall be deemed to confer
on a High Court powers of superintendence overPage 21
21
any court or tribunal constituted by or under any
law relating to the Armed Forces.”
The aforesaid Article confers power of superintendence
on the High Court over the courts and tribunals within the
territory of the State. The High Court has the jurisdiction and
the authority to exercise suo motu power.
21. In Achutananda Baidya v. Prafullya Kumar Gayen
and others9 a two-Judge Bench while dealing with the power
of superintendence of the High Court under Article 227 has
opined that the power of superintendence of the High Court
under Article 227 of the Constitution is not confined to
administrative superintendence only but such power includes
within its sweep the power of judicial review. The power and
duty of the High Court under Article 227 is essentially to
ensure that the courts and tribunals, inferior to High Court,
have done what they were required to do. Law is well settled
by various decisions of this Court that the High Court can
interfere under Article 227 of the Constitution in cases of
erroneous assumption or acting beyond its jurisdiction,
9
(1997) 5 SCC 76Page 22
22
refusal to exercise jurisdiction, error of law apparent on record
as distinguished from a mere mistake of law, arbitrary or
capricious exercise of authority or discretion, a patent error in
procedure, arriving at a finding which is perverse or based on
no material, or resulting in manifest injustice.
22. We have already stated that the Division Bench while
concurring with the opinion of the learned single Judge has
also quashed the order by the learned trial judge on the
ground that there was no judgment on record. There is no
dispute about the fact that the Full Court of the High Court
after coming to a definite conclusion that the learned trial
judge had really not passed any judgment, resolved that the
matter should be heard by the learned Sessions Judge and
accordingly the Registrar General of the High Court
communicated the decision to the concerned learned Sessions
Judge. The submission of the learned counsel for the
appellant is that such a power could not have been exercised
by the Full Court on the administrative side, for in exercise of
administrative authority, the High Court cannot transfer thePage 23
23
case. The contention is that High Court can only transfer the
case in exercise of power under Section 407 and that too on
the judicial side. Our attention has also been drawn to
Section 194 of CrPC. Section 194 empowers the Additional
and Assistant Sessions Judges to try cases made over to them.
The said provision reads as follows:-
“194. Additional and Assistant Sessions Judges
to try cases made over to them.― An Additional
Sessions Judge or Assistant Sessions Judge shall
try such cases as the Sessions Judge of the division
may, by general or special order, make over to him
for trial or as the High Court may, by special order,
direct him to try.”
23. It is argued that Section 194 can be exercised on the
administrative side before the commencement of the trial and
not thereafter, whereas Section 407 can be taken recourse to
on the judicial side and a case can be transferred on the basis
of parameters laid down for transfer of a criminal trial. In this
regard, we may usefully refer to the authority in Ranbir
Yadav v. State of Bihar10 wherein under certain
circumstances the High Court had transferred the sessions
trial from the court of one Additional Sessions Judge to
10 (1995) 4 SCC 392Page 24
24
another by an administrative order at a stage when the trial
had commenced. It was contended before this Court that the
trial that took place before the transferee court was wholly
without jurisdiction and consequently the conviction and
sentence recorded by that court were null and void and were
not curable under Section 465 CrPC. To sustain the said
proposition of law, reliance was placed in A.R. Antulay v.
R.S. Nayak and another11. The two-Judge Bench perusing
the material on record came to the conclusion that the order
was passed by the High Court in its administrative
jurisdiction. Thereafter, it proceeded to opine thus:-
“Under Article 227 of the Constitution of India every
High Court has superintendence over all courts and
tribunals throughout the territories in relation to
which it exercises jurisdiction and it is trite that
this power of superintendence entitles the High
Court to pass orders for administrative exigency and
expediency. In the instant case it appears that the
High Court had exercised the power of transfer in
the context of the petition filed by some of the
accused from jail complaining that they could not
be accommodated in the courtroom as a result of
which some of them had to remain outside. It
further appears that the other grievance raised was
that the court was so crowded that even clerks of
the lawyers were not being allowed to enter the
11 (1988) 2 SCC 602Page 25
25
courtroom to carry the briefs. Such a situation was
obviously created by the trial of a large number of
persons. If in the context of the above facts, the
High Court exercised its plenary administrative
power to transfer the case to the 5th Court, which,
we assume had a bigger and better arrangement to
accommodate the accused, lawyers and others
connected with the trial no exception can be taken
to the same, particularly by those at whose instance
and for whose benefit the power was exercised.”
Proceeding further, the Court held that:-
“So long as power can be and is exercised purely for
administrative exigency without impinging upon
and prejudicially affecting the rights or interests of
the parties to any judicial proceeding we do not find
any reason to hold that administrative powers must
yield place to judicial powers simply because in a
given circumstance they coexist. On the contrary,
the present case illustrates how exercise of
administrative powers were more expedient,
effective and efficacious. If the High Court had
intended to exercise its judicial powers of transfer
invoking Section 407 of the Code it would have
necessitated compliance with all the procedural
formalities thereof, besides providing adequate
opportunities to the parties of a proper hearing
which, resultantly, would have not only delayed the
trial but further incarceration of some of the
accused. It is obvious, therefore, that by invoking its
power of superintendence, instead of judicial
powers, the High Court not only redressed the
grievances of the accused and others connected
with the trial but did it with utmost dispatch.”Page 26
26
24. The Court distinguished the authority in A.R. Antulay
case (supra) on the basis that in the said case the Court was
dealing with a situation where this Court had transferred the
case to the High Court which was not authorized by law and
the Court could not have conferred the jurisdictions on the
High Court as it did not possess such jurisdiction under the
scheme of the Criminal Law Amendment Act, 1952. The
controversy the two-Judge Bench was dealing with pertained
to transfer of the case to the learned Additional Sessions
Judge who was competent under the CrPC to conduct the
sessions trial and, therefore, the Court in Ranbir Yadav’s
case (supra) ruled that the order of transfer to another court
did not suffer from any legal infirmity.
25. In the case at hand, the High Court on the administrative
side had transferred the case to the learned Sessions Judge by
which it has conferred jurisdiction on the trial court which has
the jurisdiction to try the sessions case under CrPC. Thus, it
has done so as it has, as a matter of fact, found that there was
no judgment on record. There is no illegality. Be it noted, the
Division Bench in the appeal preferred at the instance of the
present appellants thought it appropriate to quash the order
as there is no judgment on record but a mere order-sheet. In a
piquant situation like the present one, we are disposed to
think that the High Court was under legal obligation to set
aside the order as it had no effect in law. The High Court has
correctly done so as it has the duty to see that sanctity of
justice is not undermined. The High Court has done so as it
has felt that an order which is a mere declaration of result
without the judgment should be nullified and become extinct.
26. The case at hand constrains us to say that a trial Judge
should remember that he has immense responsibility as he
has a lawful duty to record the evidence in the prescribed
manner keeping in mind the command postulated in
Section 309 of the CrPC and pronounce the judgment as
provided under the Code. A Judge in charge of the trial has to
be extremely diligent so that no dent is created in the trial and
in its eventual conclusion. Mistakes made or errors committed
are to be rectified by the appellate court in exercise of “error
jurisdiction”. That is a different matter. But, when a situation
like the present one crops up, it causes agony, an unbearable
one, to the cause of justice and hits like a lightning in a
cloudless sky. It hurts the justice dispensation system and no
one, and we mean no one, has any right to do so. The High
Court by rectifying the grave error has acted in furtherance of
the cause of justice. The accused persons might have felt
delighted in acquittal and affected by the order of rehearing,
but they should bear in mind that they are not the lone
receivers of justice. There are victims of the crime. Law serves
both and justice looks at them equally. It does not tolerate
that the grievance of the victim should be comatosed in this
manner.
27. Consequently, appeals are dismissed. The trial court to
whom the cases have been transferred is directed to proceed in
accordance with law.
.............................J.
[Dipak Misra]
New Delhi; .............................J.
January 06, 2017 [Amitava Roy]
Print Page
side had transferred the case to the learned Sessions Judge by
which it has conferred jurisdiction on the trial court which has
the jurisdiction to try the sessions case under CrPC. Thus, it
has done so as it has, as a matter of fact, found that there was
no judgment on record. There is no illegality. Be it noted, the
Division Bench in the appeal preferred at the instance of the
present appellants thought it appropriate to quash the order
as there is no judgment on record but a mere order-sheet. In a
piquant situation like the present one, we are disposed to
think that the High Court was under legal obligation to set
aside the order as it had no effect in law. The High Court has
correctly done so as it has the duty to see that sanctity of
justice is not undermined. The High Court has done so as it
has felt that an order which is a mere declaration of result
without the judgment should be nullified and become extinct.
26. The case at hand constrains us to say that a trial Judge
should remember that he has immense responsibility as he
has a lawful duty to record the evidence in the prescribed
manner keeping in mind the command postulated in
Section 309 of the CrPC and pronounce the judgment as
provided under the Code. A Judge in charge of the trial has to
be extremely diligent so that no dent is created in the trial and
in its eventual conclusion. Mistakes made or errors committed
are to be rectified by the appellate court in exercise of “error
jurisdiction”. That is a different matter. But, when a situation
like the present one crops up, it causes agony, an unbearable
one, to the cause of justice and hits like a lightning in a
cloudless sky. It hurts the justice dispensation system and no
one, and we mean no one, has any right to do so. The High
Court by rectifying the grave error has acted in furtherance of
the cause of justice. The accused persons might have felt
delighted in acquittal and affected by the order of rehearing,
but they should bear in mind that they are not the lone
receivers of justice. There are victims of the crime. Law serves
both and justice looks at them equally. It does not tolerate
that the grievance of the victim should be comatosed in this
manner.
Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 32-33 OF 2017
(@ S.L.P. (Crl.) Nos. 7694-7695 of 2016)
Ajay Singh Vs State of Chhattisgarh and Anr.
Dated:January 06, 2017
Dipak Misra, J.
Performance of judicial duty in the manner prescribed
by law is fundamental to the concept of rule of law in a
democratic State. It has been quite often said and, rightly so,
that the judiciary is the protector and preserver of rule of law.
Effective functioning of the said sacrosanct duty has been
entrusted to the judiciary and that entrustment expects the
courts to conduct the judicial proceeding with dignity,
objectivity and rationality and finally determine the same in
accordance with law. Errors are bound to occur but there
cannot be deliberate peccability which can never be
countenanced. The plinth of justice dispensation system is
founded on the faith, trust and confidence of the people and
nothing can be allowed to contaminate and corrode the same.
A litigant who comes to a court of law expects that inherent
and essential principles of adjudication like adherence to
doctrine of audi alteram partem, rules pertaining to
fundamental adjective and seminal substantive law shall be
followed and ultimately there shall be a reasoned verdict.
When the accused faces a charge in a court of law, he expects
a fair trial. The victim whose grievance and agony have given
rise to the trial also expects that justice should be done in
accordance with law. Thus, a fair trial leading to a judgment is
necessitous in law and that is the assurance that is thought of
on both sides. The exponent on behalf of the accused cannot
be permitted to command the trial as desired by his
philosophy of trial on the plea of fair trial and similarly, the
proponent on behalf of the victim should not always be
allowed to ventilate the grievance that his cause has not been
fairly dealt with in the name of fair trial. Therefore, the concept
of expediency and fair trial is quite applicable to the accused
as well as to the victim. The result of such trial is to end in a
judgment as required to be pronounced in accordance with
law. And, that is how the stability of the creditability in the
institution is maintained.
2. The above prefatory note has relevance, a significant
one, to the case at hand. To appreciate the controversy,
certain facts are requisite to be noted. The marriage between
the appellant No. 1 and Ruby Singh, the deceased, was
solemnized according to Hindu rites on 22.06.1997. She
committed suicide at her matrimonial home on 01.12.1998.
Kameshwar Pratap lodged FIR No. 194/98 at Police Station
Lakhanpur, Distt. Sarguja against Ajay Singh (husband),
Sureshwar Singh (father-in-law), Dhanwanti Devi
(mother-in-law) and Kiran Singh (sister-in-law) for offences
punishable under Section 304B, 34 of the Indian Penal Code
(IPC) and other offences. After the criminal law was set in
motion, investigating agency after commencement of
investigation and after completion thereof laid charge sheet
under Sections 304B, 498A/34, 328 IPC read with Section 3/4
of Dowry Prohibition Act, 1961 against the accused persons
before the Court of Chief Judicial Magistrate, Ambikapur, who,
in turn, committed the matter to the Court of Session and
eventually the matter was tried by Second Additional Sessions
Judge, Ambikapur. We are, in the present case, not concerned
with how many witnesses were examined by the trial court or
how the trial continued. What needs to be stated is that the
learned trial Judge passed an order in the order sheet that
recorded that the accused persons had been acquitted as per
the judgment separately typed, signed and dated.
3. A member of the State Bar Council sent a complaint to
the Registry of the High Court of Chhattisgarh, Bilaspur
alleging that learned trial judge had acquitted the accused
persons but no judgment had been rendered. The Registrar
(Vigilance) of the High Court issued a memorandum to the
District and Sessions Judge, Surguja at Ambikapur on
18.02.2008 to inquire into the matter and submit a report.
The concerned District and Sessions Judge submitted the
report to the High Court on the same date stating that no
judgments were found in the records of such cases. It has also
been brought to the notice of the High Court that in sessions
trials being Sessions Trial No. 148 of 1999 and Sessions Trial
No. 71 of 1995 though the same trial judge had purportedly
delivered the judgments but they were not available on record
as the judgments had not actually been dictated, dated or
signed. Thereafter the matter was placed before the Full Court
of the High Court on 04.03.2008 on which date a resolution
was passed placing the concerned trial judge under
suspension in contemplation of a departmental inquiry. At the
same time, the Full Court took the decision to transfer the
cases in question from the concerned trial judge to the file of
District and Sessions Judge, Surguja at Ambikapur for
rehearing and disposal. It is worthy to note here that the
concerned officer was put under suspension and after
completion of inquiry was imposed with the punishment of
compulsory retirement on 22.03.2011. We make it clear that
we are not concerned with the said punishment in the case.
4. After the decision was taken for transferring the cases by
the Full Court for rehearing, three writ petitions forming the
subject matter of Writ Petition (Criminal) Nos. 2796 of 2008,
2238 of 2008 and 276 of 2010 were filed. The accused in
Sessions Trial No. 148 of 1999 filed Writ Petition (Criminal)
Nos. 2796 of 2008 and 2238 of 2008 and accused in Sessions
Trial No. 71 of 1995 filed the other writ petition, that is, Writ
Petition (Criminal) No. 276 of 2010.
5. The controversy really centers around two issues,
namely, whether the learned trial judge had really pronounced
the judgment of acquittal on 31.10.2007 and whether the High
Court could have in exercise of its administrative power
treated the trial as pending and transferred the same from the
Court of Second Additional Sessions Judge, Ambikapur to the
Court of District and Sessions Judge, Surguja at Ambikapur
for rehearing and disposal.
6. It is urged by learned counsel for the appellants that the
nature of order passed by the learned trial judge would
amount to a judgment and in the absence of any appeal
preferred by the State there could not have been a direction for
rehearing of the sessions case as such action runs contrary to
the provisions of CrPC. Learned counsel would submit that
the High Court in exercise of power of the superintendence
could not have transferred the case treating it as pending on
its administrative side. To bolster the said submission he has
placed reliance on Ouseph Mathai & others v. M. Abdul
Khadir1
, Essen Deinki v. Rajiv Kumar2
and Surya Dev Rai
v. Ram Chander Rai and others3
.
7. Mr. C.D. Singh, learned counsel for the State submitted
that the approach of the High Court is absolutely infallible and
does not warrant any interference by this Court.
1
(2002) 1 SCC 319
2
(2002) 8 SCC 400
3
(2003) 6 SCC 675Page 8
8
8. To appreciate the controversy, it is necessary to refer to
the order sheet in Sessions Trial No. 71 of 1995. The trial
judge on 28.1.2008 had passed the following order:-
“28.1.2008:
State represented by Shri Rajesh Tiwari, A.G.P.
Accused along with their Counsel Shri Arvind
Mehta, Advocate
The judgment has been typed separately. The same
has been dated, signed and announced.
Resultantly, Accused T.P. Ratre is acquitted of the
charge under Section 306 IPC.
A copy of this judgment be sent to the District
Magistrate, Surguja (Ambikapur) through A.G.P.
Proceedings completed.
The result be noted in the register and the record be
sent to the Record Room.”
Be it noted, in the other Sessions Trial, i.e., Sessions
Trial No. 148 of 1999 almost similar order has been passed.
Be it stated, apart from the aforesaid order, as per the enquiry
conducted by the learned District Judge, there was nothing on
record. The trial judge had not dictated the order in open
court. In such a situation, it is to be determined whether the
judgment had been delivered by the trial judge or not.
9. Chapter XVIII of CrPC provides for trial before a court of
session. Section 227 empowers the trial judge to discharge the
accused after hearing the submissions of the accused and the
prosecution and on being satisfied that there is no sufficient
ground for proceeding against the accused. The key words of
the Section are “not sufficient ground for proceeding against
the accused”. Interpreting the said provision, the Court in
P. Vijayan v. State of Kerala and another4
has held that
the Judge is not a mere post office to frame the charge at the
behest of the prosecution, but has to exercise his judicial mind
to the facts of the case in order to determine whether a case
for trial has been made out by the prosecution. In assessing
this fact, it is not necessary for the court to enter into the pros
and cons of the matter or into a weighing and balancing of
evidence and probabilities which is really the function of the
court, after the trial starts. At the stage of Section 227, the
Judge has merely to sift the evidence in order to find out
whether or not there is sufficient ground for proceeding
against the accused. In other words, the sufficiency of ground
4
(2010) 2 SCC 398
would take within its fold the nature of the evidence recorded
by the police or the documents produced before the court
which ex facie disclose that there are suspicious
circumstances against the accused so as to frame a charge
against him.
10. Section 228 empowers the trial judge to frame the
charge. Section 229 provides if the accused pleads guilty, the
Judge shall record the plea and may, in his discretion, convict
him thereon. Section 230 provides for date for prosecution
evidence. Section 231 deals with the evidence for prosecution.
Section 232 provides that if, after taking the evidence for the
prosecution, examining the accused and hearing the
prosecution the defence on the point, the Judge considers that
there is no evidence that the accused committed the offence,
the Judge shall record an order of acquittal. Section 233
stipulates that where the accused is not acquitted under
Section 232 he shall be called upon to enter on his defence
and adduce any evidence he may have in support thereof.
Section 234 provides for arguments. Section 235 which
provides for judgment of acquittal or conviction reads as
follows:-
“235. Judgment of acquittal or conviction. – (1)
After hearing arguments and points of law (if any),
the Judge shall give a judgment in the case.
(2) If the accused is convicted, the Judge shall,
unless he proceeds in accordance with the
provisions of section 360, hear the accused on the
question of sentence, and then pass sentence on
him according to law.”
11. Chapter XXIV provides for general provisions as to
inquiries and trials. Chapter XXVII deals with the judgment.
Section 353 lays down the procedure for pronouncement of
the judgment. The said provision reads as follows:-
“353. Judgment -
(1) The judgment in every trial in any Criminal
Court of original jurisdiction shall be pronounced in
open Court by the presiding officer immediately
after the termination of the trial or at some
subsequent time of which notice shall be given to
the parties or their pleaders,-
(a) by delivering the whole of the judgment; or
(b) by reading out the whole of the judgment; or
(c) by reading out the operative part of the judgment
and explaining the substance of the judgment in a
language which is understood by the accused or his
pleader.
(2) Where the judgment is delivered under clause (a)
of sub-section (1), the presiding officer shall cause it
to be taken down in short-hand, sign the transcript
and every page thereof as soon as it is made ready,Page 12
12
and write on it the date of the delivery of the
judgment in open Court.
(3) Where the judgment or the operative part thereof
is read out under clause (b) or clause (c) of subsection
(1), as the case may be, it shall be dated and
signed by the presiding officer in open Court, and if
it is not written with his own hand, every page of
the judgment shall be signed by him.
(4) Where the judgment is pronounced in the
manner specified in clause (c) of sub-section (1), the
whole judgment or a copy thereof shall be
immediately made available for the perusal of the
parties or their pleaders free of cost.
(5) If the accused is in custody, he shall be brought
up to hear the judgment pronounced.
(6) If the accused is not in custody, he shall be
required by the Court to attend to hear the
judgment pronounced, except where his personal
attendance during the trial has been dispensed with
and the sentence is one of fine only or he is
acquitted: Provided that, where there are more
accused than one, and one or more of them do not
attend the Court on the date on which the judgment
is to be pronounced, the presiding officer may, in
order to avoid undue delay in the disposal of the
case, pronounce the judgment notwithstanding
their absence.
(7) No judgment delivered by any Criminal Court
shall be deemed to be invalid by reason only of the
absence of any party or his pleader on the day or
from the place notified for the delivery thereof, or of
any omission to serve, or defect in serving, on the
parties or their pleaders, or any of them, the notice
of such day and place.
(8) Nothing in this section shall be construed to
limit in any way the extent of the provisions of
section 465.”Page 13
13
12. Section 354 provides for language and contents of the
judgment. The said provision reads as follows:-
“354. Language and contents of judgment.-
(1) Except as otherwise expressly provided by this
Code, every judgment referred to in section 353,-
(a) shall be written in the language of the Court;
(b) shall contain the point or points for
determination, the decision thereon and the reasons
for the decision;
(c) shall specify the offence (if any) of which, and the
section of the Indian Penal Code (45 of 1860 ) or
other law under which, the accused is convicted
and the punishment to which he is sentenced;
(d) if it be a judgment of acquittal, shall state the
offence of which the accused is acquitted and direct
that he be set at liberty.
(2) When the conviction is under the Indian Penal
Code (45 of 1860 ), and it is doubtful under which
of two sections, or under which of two parts of the
same section, of that Code the offence falls, the
Court shall distinctly express the same, and pass
judgment in the alternative.
(3) When the conviction is for an offence punishable
with death or, in the alternative, with imprisonment
for life or imprisonment for a term of years, the
judgment shall state the reasons for the sentence
awarded, and, in the case of sentence of death, the
special reasons for such sentence.
(4) When the conviction is for an offence punishable
with imprisonment for a term of one year or more,
but the Court imposes a sentence of imprisonment
for a term of less than three months, it shall record
its reasons for awarding such sentence, unless the
sentence is one of imprisonment till the rising of thePage 14
14
Court or unless the case was tried summarily under
the provisions of this Code.
(5) When any person is sentenced to death, the
sentence shall direct that he be hanged by the neck
till he is dead.
(6) Every order under section 117 or sub-section (2)
of section 138 and every final order made under
section 125, section 145 or section 147 shall
contain the point or points for determination, the
decision thereon and the reasons for the decision.”
13. Section 362 has the heading “Court not to alter
judgment.” The said provision is as follows:-
“362. Court not to alter judgment.―Save as
otherwise provided by this Code or by any other law
for the time being in force, no Court, when it has
signed its judgment or final order disposing of a
case, shall alter or review the same except to
correct a clerical or arithmetical error.”
14. Interpreting the said provision in the context of exercise
of inherent power of the High Court under Section 482 CrPC
this Court in Smt. Sooraj Devi v. Pyare Lal and another5
held thus:-
“5. The appellant points out that he invoked the
inherent power of the High Court saved by Section
482 of the Code and that notwithstanding the
prohibition imposed by Section 362 the High Court
had power to grant relief. Now it is well settled that
the inherent power of the court cannot be exercised
for doing that which is specifically prohibited by the
5
(1981) 1 SCC 500Page 15
15
Code (Sankatha Singh v. State of U.P.
6
). It is true
that the prohibition in Section 362 against the court
altering or reviewing its judgment is subject to what
is “otherwise provided by this Court or by any other
law for the time being in force”. Those words,
however, refer to those provisions only where the
court has been expressly authorised by the Code or
other law to alter or review its judgment. The
inherent power of the court is not contemplated by
the saving provision contained in Section 362 and,
therefore, the attempt to invoke that power can be
of no avail.”
We have referred to the aforesaid decision to illustrate
that the CrPC confers absolute sanctity to the judgment once
it is pronounced. It does not conceive of any kind of
alteration.
15. Section 363 provides copy of judgment to be given to the
accused and other persons. Section 364 provides for the
situation where the judgment requires to be translated.
16. It is apposite to note that though CrPC does not define
the term “judgment”, yet it has clearly laid down how the
judgment is to be pronounced. The provisions clearly spell out
that it is imperative on the part of the learned trial judge to
pronounce the judgment in open court by delivering the whole
6 AIR 1962 SC 1208Page 16
16
of the judgment or by reading out the whole of the judgment or
by reading out the operative part of the judgment and
explaining the substance of the judgment in a language which
is understood by the accused or his pleader.
17. We have already noted that the judgment was not
dictated in open court. Code of Criminal Procedure provides
reading of the operative part of the judgment. It means that
the trial judge may not read the whole of the judgment and
may read operative part of the judgment but it does not in any
way suggest that the result of the case will be announced and
the judgment would not be available on record. Nonavailability
of judgment, needless to say, can never be a
judgment because there is no declaration by way of
pronouncement in the open court that the accused has been
convicted or acquitted. A judgment, as has been always
understood, is the expression of an opinion after due
consideration of the facts which deserve to be determined.
Without pronouncement of a judgment in the open court,
signed and dated, it is difficult to treat it as a judgment ofPage 17
17
conviction as has been held in Re. Athipalayan and Ors7
.
As a matter of fact, on inquiry, the High Court in the
administrative side had found there was no judgment available
on record. Learned counsel for the appellants would submit
that in the counter affidavit filed by the High Court it has been
mentioned that an incomplete typed judgment of 14 pages till
paragraph No. 19 was available. The affidavit also states that
it was incomplete and no page had the signature of the
presiding officer. If the judgment is not complete and signed,
it cannot be a judgment in terms of Section 353 CrPC. It is
unimaginable that a judgment is pronounced without there
being a judgment. It is gross illegality. In this context, we may
refer to a passage from State of Punjab and others v.
Jagdev Singh Talwandi8
wherein expressing the opinion for
the Constitution Bench, Chandrachud, C.J. observed thus:-
“30. We would like to take this opportunity to point
out that serious difficulties arise on account of the
practice increasingly adopted by the High Courts, of
pronouncing the final order without a reasoned
judgment. It is desirable that the final order which
the High Court intends to pass should not be
7 AIR 1960 Mad 507
8
(1984) 1 SCC 596Page 18
18
announced until a reasoned judgment is ready for
pronouncement. Suppose, for example, that a final
order without a reasoned judgment is announced by
the High Court that a house shall be demolished, or
that the custody of a child shall be handed over to
one parent as against the other, or that a person
accused of a serious charge is acquitted, or that a
statute is unconstitutional or, as in the instant
case, that a detenu be released from detention. If
the object of passing such orders is to ensure
speedy compliance with them, that object is more
often defeated by the aggrieved party filing a special
leave petition in this Court against the order passed
by the High Court. That places this Court in a
predicament because, without the benefit of the
reasoning of the High Court, it is difficult for this
Court to allow the bare order to be implemented.
The result inevitably is that the operation of the
order passed by the High Court has to be stayed
pending delivery of the reasoned judgment.
31. It may be thought that such orders are passed
by this Court and therefore there is no reason why
the High Courts should not do the same. We would
like to point out respectfully that the orders passed
by this Court are final and no appeal lies against
them. The Supreme Court is the final court in the
hierarchy of our courts. Besides, orders without a
reasoned judgment are passed by this Court very
rarely, under exceptional circumstances. Orders
passed by the High Court are subject to the
appellate jurisdiction of this Court under Article 136
of the Constitution and other provisions of the
concerned statutes. We thought it necessary to
make these observations in order that a practice
which is not very desirable and which achieves no
useful purpose may not grow out of its present
infancy.”Page 19
19
18. We have reproduced the aforesaid two passages as the
larger Bench has made such observations with regard to
unreasoned judgments passed by the High Courts. The
learned Chief Justice had noted that the practice is not
desirable and does not achieve any useful purpose and it
should not grow out of its present infancy. Despite the said
observations, sometimes this Court comes across judgments
and orders where the High Courts have announced the result
of the case by stating “reasons to follow”. We can only reiterate
the observations of the Constitution Bench.
19. Having stated that, as is evincible in the instant case,
the judgment is not available on record and hence, there can
be no shadow of doubt that the declaration of the result
cannot tantamount to a judgment as prescribed in the CrPC.
That leads to the inevitable conclusion that the trial in both
the cases has to be treated to be pending.
20. The next issue that emerges for consideration is whether
the High Court on its administrative side could have
transferred the case from the Second Additional SessionsPage 20
20
Judge, Ambikapur to the Court of District and Sessions
Judge, Surguja at Ambikapur. In this regard, it is suffice to
understand the jurisdiction and authority conferred under the
Constitution on the High Court in the prescription of power of
superintendence under Article 227. Article 227 of the
Constitution reads as follows:-
“227. Power of superintendence over all courts
by the High Court:-(1) Every High Court shall have
superintendence over all courts and tribunals
throughout the territories in relation to which it
exercises jurisdiction.
(2) Without prejudice to the generality of the
foregoing provisions, the High Court may-
(a) call for returns from such courts;
(b) make and issue general rules and prescribe
forms for regulating the practice and proceedings of
such courts; and
(c) prescribe forms in which books, entries and
accounts shall be kept by the officers of any such
courts
(3) The High Court may also settle tables of fees to
be allowed to the sheriff and all clerks and officers
of such courts and to attorneys, advocates and
pleaders practising therein:
Provided that any rules made, forms prescribed
or tables settled under clause (2) or clause (3) shall
not be inconsistent with the provision of any law for
the time being in force, and shall require the
previous approval of the Governor
(4) Nothing in this article shall be deemed to confer
on a High Court powers of superintendence overPage 21
21
any court or tribunal constituted by or under any
law relating to the Armed Forces.”
The aforesaid Article confers power of superintendence
on the High Court over the courts and tribunals within the
territory of the State. The High Court has the jurisdiction and
the authority to exercise suo motu power.
21. In Achutananda Baidya v. Prafullya Kumar Gayen
and others9 a two-Judge Bench while dealing with the power
of superintendence of the High Court under Article 227 has
opined that the power of superintendence of the High Court
under Article 227 of the Constitution is not confined to
administrative superintendence only but such power includes
within its sweep the power of judicial review. The power and
duty of the High Court under Article 227 is essentially to
ensure that the courts and tribunals, inferior to High Court,
have done what they were required to do. Law is well settled
by various decisions of this Court that the High Court can
interfere under Article 227 of the Constitution in cases of
erroneous assumption or acting beyond its jurisdiction,
9
(1997) 5 SCC 76Page 22
22
refusal to exercise jurisdiction, error of law apparent on record
as distinguished from a mere mistake of law, arbitrary or
capricious exercise of authority or discretion, a patent error in
procedure, arriving at a finding which is perverse or based on
no material, or resulting in manifest injustice.
22. We have already stated that the Division Bench while
concurring with the opinion of the learned single Judge has
also quashed the order by the learned trial judge on the
ground that there was no judgment on record. There is no
dispute about the fact that the Full Court of the High Court
after coming to a definite conclusion that the learned trial
judge had really not passed any judgment, resolved that the
matter should be heard by the learned Sessions Judge and
accordingly the Registrar General of the High Court
communicated the decision to the concerned learned Sessions
Judge. The submission of the learned counsel for the
appellant is that such a power could not have been exercised
by the Full Court on the administrative side, for in exercise of
administrative authority, the High Court cannot transfer thePage 23
23
case. The contention is that High Court can only transfer the
case in exercise of power under Section 407 and that too on
the judicial side. Our attention has also been drawn to
Section 194 of CrPC. Section 194 empowers the Additional
and Assistant Sessions Judges to try cases made over to them.
The said provision reads as follows:-
“194. Additional and Assistant Sessions Judges
to try cases made over to them.― An Additional
Sessions Judge or Assistant Sessions Judge shall
try such cases as the Sessions Judge of the division
may, by general or special order, make over to him
for trial or as the High Court may, by special order,
direct him to try.”
23. It is argued that Section 194 can be exercised on the
administrative side before the commencement of the trial and
not thereafter, whereas Section 407 can be taken recourse to
on the judicial side and a case can be transferred on the basis
of parameters laid down for transfer of a criminal trial. In this
regard, we may usefully refer to the authority in Ranbir
Yadav v. State of Bihar10 wherein under certain
circumstances the High Court had transferred the sessions
trial from the court of one Additional Sessions Judge to
10 (1995) 4 SCC 392Page 24
24
another by an administrative order at a stage when the trial
had commenced. It was contended before this Court that the
trial that took place before the transferee court was wholly
without jurisdiction and consequently the conviction and
sentence recorded by that court were null and void and were
not curable under Section 465 CrPC. To sustain the said
proposition of law, reliance was placed in A.R. Antulay v.
R.S. Nayak and another11. The two-Judge Bench perusing
the material on record came to the conclusion that the order
was passed by the High Court in its administrative
jurisdiction. Thereafter, it proceeded to opine thus:-
“Under Article 227 of the Constitution of India every
High Court has superintendence over all courts and
tribunals throughout the territories in relation to
which it exercises jurisdiction and it is trite that
this power of superintendence entitles the High
Court to pass orders for administrative exigency and
expediency. In the instant case it appears that the
High Court had exercised the power of transfer in
the context of the petition filed by some of the
accused from jail complaining that they could not
be accommodated in the courtroom as a result of
which some of them had to remain outside. It
further appears that the other grievance raised was
that the court was so crowded that even clerks of
the lawyers were not being allowed to enter the
11 (1988) 2 SCC 602Page 25
25
courtroom to carry the briefs. Such a situation was
obviously created by the trial of a large number of
persons. If in the context of the above facts, the
High Court exercised its plenary administrative
power to transfer the case to the 5th Court, which,
we assume had a bigger and better arrangement to
accommodate the accused, lawyers and others
connected with the trial no exception can be taken
to the same, particularly by those at whose instance
and for whose benefit the power was exercised.”
Proceeding further, the Court held that:-
“So long as power can be and is exercised purely for
administrative exigency without impinging upon
and prejudicially affecting the rights or interests of
the parties to any judicial proceeding we do not find
any reason to hold that administrative powers must
yield place to judicial powers simply because in a
given circumstance they coexist. On the contrary,
the present case illustrates how exercise of
administrative powers were more expedient,
effective and efficacious. If the High Court had
intended to exercise its judicial powers of transfer
invoking Section 407 of the Code it would have
necessitated compliance with all the procedural
formalities thereof, besides providing adequate
opportunities to the parties of a proper hearing
which, resultantly, would have not only delayed the
trial but further incarceration of some of the
accused. It is obvious, therefore, that by invoking its
power of superintendence, instead of judicial
powers, the High Court not only redressed the
grievances of the accused and others connected
with the trial but did it with utmost dispatch.”Page 26
26
24. The Court distinguished the authority in A.R. Antulay
case (supra) on the basis that in the said case the Court was
dealing with a situation where this Court had transferred the
case to the High Court which was not authorized by law and
the Court could not have conferred the jurisdictions on the
High Court as it did not possess such jurisdiction under the
scheme of the Criminal Law Amendment Act, 1952. The
controversy the two-Judge Bench was dealing with pertained
to transfer of the case to the learned Additional Sessions
Judge who was competent under the CrPC to conduct the
sessions trial and, therefore, the Court in Ranbir Yadav’s
case (supra) ruled that the order of transfer to another court
did not suffer from any legal infirmity.
25. In the case at hand, the High Court on the administrative
side had transferred the case to the learned Sessions Judge by
which it has conferred jurisdiction on the trial court which has
the jurisdiction to try the sessions case under CrPC. Thus, it
has done so as it has, as a matter of fact, found that there was
no judgment on record. There is no illegality. Be it noted, the
Division Bench in the appeal preferred at the instance of the
present appellants thought it appropriate to quash the order
as there is no judgment on record but a mere order-sheet. In a
piquant situation like the present one, we are disposed to
think that the High Court was under legal obligation to set
aside the order as it had no effect in law. The High Court has
correctly done so as it has the duty to see that sanctity of
justice is not undermined. The High Court has done so as it
has felt that an order which is a mere declaration of result
without the judgment should be nullified and become extinct.
26. The case at hand constrains us to say that a trial Judge
should remember that he has immense responsibility as he
has a lawful duty to record the evidence in the prescribed
manner keeping in mind the command postulated in
Section 309 of the CrPC and pronounce the judgment as
provided under the Code. A Judge in charge of the trial has to
be extremely diligent so that no dent is created in the trial and
in its eventual conclusion. Mistakes made or errors committed
are to be rectified by the appellate court in exercise of “error
jurisdiction”. That is a different matter. But, when a situation
like the present one crops up, it causes agony, an unbearable
one, to the cause of justice and hits like a lightning in a
cloudless sky. It hurts the justice dispensation system and no
one, and we mean no one, has any right to do so. The High
Court by rectifying the grave error has acted in furtherance of
the cause of justice. The accused persons might have felt
delighted in acquittal and affected by the order of rehearing,
but they should bear in mind that they are not the lone
receivers of justice. There are victims of the crime. Law serves
both and justice looks at them equally. It does not tolerate
that the grievance of the victim should be comatosed in this
manner.
27. Consequently, appeals are dismissed. The trial court to
whom the cases have been transferred is directed to proceed in
accordance with law.
.............................J.
[Dipak Misra]
New Delhi; .............................J.
January 06, 2017 [Amitava Roy]
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