# 15 (ADDL.) S.C.R. 540 STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR & ORS. ETC

- **Citation:** [2011] 15 S.C.R. 540
- **Court:** Supreme Court of India
- **Decided:** 2011-12-07
- **Case number:** Criminal Appeal Nos.753-55 of 2009
- **Bench:** Dr. B.S. Chauhan, A.K. Patnaik
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/15-addl-s-c-r-540-state-of-punjab-v-davinder-pal-singh-bhullar-ors-etc-27349
- **Pages:** 75

## Headnote

Code of Criminal Procedure, 1973:
c
s.362 -
Alteration/Modification of judgment -
Permissibility of - Held: There is no power of review with the
Criminal Court after judgment has been rendered - High
Court can alter or review its judgment before it is signed -
When judgment/order is passed, it cannot be reviewed -
0
s.362 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 disentit/ed to entertain a fresh prayer for any
relief unless the former order of final disposal is set aside by
E a Court of competent jurisdiction in a manner prescribed by
Jaw - 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
F of the judgment.
s.482 - Inherent powers under - Scope of exercise -
Applications filed uls.482 in a disposed of appeal - High
Court entertained the applications, directed investigation by
CBI and consequently CBI registered FIR - Held: Prohibition
G contained in s.362 is absolute; after the judgment is signed,
even the High Court in exercise of its inherent power u/s.482
has no authority or jurisdiction to alter/review the same.
Constitution of India, 1950: Article 137 - Power to review
H
540
STATE OF PUNJAB v. DAVINDER PAL SINGH
541
BHULLAR & ORS. ETC
any judgment- Held: Supreme Court by virtue of Article 137
A
has been invested with an express power· to review any
judgment in Criminal Law.
Jurisdiction: Of the Bench - Held: A Judge or a Bench
of Judges can assume jurisdiction in a case pending in the
B
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 - The Judge cannot choose which matter he should
entertain and he cannot entertain a petition in respect of which C
jurisdiction has not been assigned to him by the Chief Justice.
Investigation/Inquiry: When CBI enquiry can be directed
- Held: A constitutional court can direct the CBI to investigate
into the case provided the court after examining the
a/legations in the complaint reaches a conclusion that the
D
complainant could make out prima facie 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
E
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 F
the complainant, and it is necessary to do so in order to do
complete justice and make the investigation credible.
Doctrine of waiver: Bar of waiver/acquiescence - Held:
Issue of bias must be raised by party at the earliest if he is
G
aware of it - If plea of bar is not taken at early stage, bar of
waiver is created -
Moreover, question of waiver!
acquiescence would arise in a case provided the person
apprehending the bias/prejudice is a party to the case.
Judicial bias: Disability to act as an adjudicator - Held:
H
542
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A Suspicion or bias disab.les an official from acting as an
adjudicator - Mere ground of appearance of bias and not
actual bias is enough to vitiate judgment/order - Judgment
which is result of bias or want of impartiality is a nullity.
B
Judgment/Order: Review/alteration of judgment -
Permissibility - Held: There is no power with the criminal court
to review after judgment is rendered.
Res judicata: Writ of habeas corpus petitions filed earlier
and dealt with by the courts in

## Text

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A
B
[2011) 15 (ADDL.) S.C.R. 540
STATE OF PUNJAB
v.
DAVINDER PAL SINGH BHULLAR & ORS. ETC
(Criminal Appeal Nos.753-55 of 2009)
DECEMBER 7, 2011
[DR. B.S. CHAUHAN AND A.K. PATNAIK, JJ.]
Code of Criminal Procedure, 1973:
c
s.362 -
Alteration/Modification of judgment -
Permissibility of - Held: There is no power of review with the
Criminal Court after judgment has been rendered - High
Court can alter or review its judgment before it is signed -
When judgment/order is passed, it cannot be reviewed -
0
s.362 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 disentit/ed to entertain a fresh prayer for any
relief unless the former order of final disposal is set aside by
E a Court of competent jurisdiction in a manner prescribed by
Jaw - 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
F of the judgment.
s.482 - Inherent powers under - Scope of exercise -
Applications filed uls.482 in a disposed of appeal - High
Court entertained the applications, directed investigation by
CBI and consequently CBI registered FIR - Held: Prohibition
G contained in s.362 is absolute; after the judgment is signed,
even the High Court in exercise of its inherent power u/s.482
has no authority or jurisdiction to alter/review the same.
Constitution of India, 1950: Article 137 - Power to review
H
540
STATE OF PUNJAB v. DAVINDER PAL SINGH
541
BHULLAR & ORS. ETC
any judgment- Held: Supreme Court by virtue of Article 137
A
has been invested with an express power· to review any
judgment in Criminal Law.
Jurisdiction: Of the Bench - Held: A Judge or a Bench
of Judges can assume jurisdiction in a case pending in the
B
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 - The Judge cannot choose which matter he should
entertain and he cannot entertain a petition in respect of which C
jurisdiction has not been assigned to him by the Chief Justice.
Investigation/Inquiry: When CBI enquiry can be directed
- Held: A constitutional court can direct the CBI to investigate
into the case provided the court after examining the
a/legations in the complaint reaches a conclusion that the
D
complainant could make out prima facie 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
E
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 F
the complainant, and it is necessary to do so in order to do
complete justice and make the investigation credible.
Doctrine of waiver: Bar of waiver/acquiescence - Held:
Issue of bias must be raised by party at the earliest if he is
G
aware of it - If plea of bar is not taken at early stage, bar of
waiver is created -
Moreover, question of waiver!
acquiescence would arise in a case provided the person
apprehending the bias/prejudice is a party to the case.
Judicial bias: Disability to act as an adjudicator - Held:
H
542
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R
A Suspicion or bias disab.les an official from acting as an
adjudicator - Mere ground of appearance of bias and not
actual bias is enough to vitiate judgment/order - Judgment
which is result of bias or want of impartiality is a nullity.
B
Judgment/Order: Review/alteration of judgment -
Permissibility - Held: There is no power with the criminal court
to review after judgment is rendered.
Res judicata: Writ of habeas corpus petitions filed earlier
and dealt with by the courts in accordance with law - Fresh
C petition in respect of the same subject matter filed after 10
years - Maintainability of - Held: A second 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
D Supreme Court after disposal of a habeas corpus writ petition
under Article 2.26 of the Constitution by the High Court -
H?wever, it is not possible to re-approach the High Court for
the same relief by filing a fresh writ petition - In case, a petition
by issuing writ of habeas corpus is dismissed by the High
E 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 - 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
F 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
G were not taken in the earlier petition for the same relief may
be permissible.
Appeal: Special leave petition (SLP)- Dismissal of, in
limine - Held: Dismissal of the SLP in limine does not mean
that the reasoning of the judgment of the High Court against
H
STATE OF PUNJAB v. DAVINDER PAL SINGH
543
BHULLAR & ORS. ETC
which the SLP had been filed before the Supreme Court stood A
affirmed or the judgment and order impugned merged with
such order of Supreme Court on dismissal of the petition - It
would simply mean that Supreme Court did not consider the
case worth examining for a reason, which may be other than
merit of the case - An order rejecting the SLP at the threshold
B
without detailed reasons, therefore, would 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 - Precedent.
The question which arose for consideration in the c
instant appeals were 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 Cr.P.C. and as to
whether in exercise of its inherent jurisdiction under D
Section 482 Cr.P.C. 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 Cr.P.C.
E
The prosecution case was that FIR No.334191 under
IPC and Explosive Substances Act, 1908 was registered.
In connection with that FIR, one 'BSM' was arrested. On
19.12.1991, 'BSM' escaped from the custody of the police
F
for which FIR No.112 under Sections 223 and 224 IPC was
registered. The father of 'BSM' filed writ petition before
the High Court for production of his son. The State
Government explained that 'BSM' had escaped from
police custody. The High Court dismissed the aforesaid
G
writ petition. After completion of the investigation in
respect of FIR No.112 of 1991 regarding the escape of
'BSM', a challan was filed before the competent court
wherein he was declared a proclaimed offender. After
completion of the investigation in FIR No.334 of 1991, the
H
544
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A Police chargesheeted eight persons. The chargesheet
revealed that an attempt was made by terrorists on the
life of 'SSS', the then SSP, Chandigarh, by using
explosives. In a thunderous explosion that followed, the
Ambassador Car of the SSP, Chandigarh, was blown
B high into the air whereafter it fell down ahead at some
distance completely shattered. Two persons died and
several persons got grievously injured. Three of the
accused, namely, 'DPSB, 'PSM' and 'GKM' were subjected
to trial. The other co-accused were not traceable and they
c were declared proclaimed offenders. The trial court
acquitted the three accused giving them benefit of doubt.
The High Court dismissed the appeal against the said
acquittal.
After 20 days of the disposal of the appeal against
D 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". The SSP, Chandigarh submitted an
E affidavit dated 4.8.2007, giving information regarding all
the proclaimed offenders in that case. One of them was
'DPSB' who was initially declared as a proclaimed
offender. However, he was subsequently arrested and
was sentenced to death in a case in which an
F assassination attempt was made on the life of 'MSB', the
then President, All India Youth Congress, in which
several persons were killed and the legs of 'MSB' were
amputated. It was also mentioned in the affidavit that
'BSM' had .escaped from police custody and his
G whereabouts were not known. Another proclaimed
offender was killed in a police encounter. After
considering the said affidavit filed by the SSP, the High
Court directed the Chandigarh Administration to
constitute a Special Investigation Team to enquire into all
H aspects of the proclaimed offenders and submit a status
STATE OF PUNJAB v. DAVINDER PAL SINGH
545
BHULLAR & ORS. ETC
report. The Hig'1 Court also issued notice to the CBI. It A
was during the pendency of these proceedings that the
father of 'BSM' 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
B
out the whereabout of his son. The High Court. directed
the CBI to investigate the allegations of father of 'BSM'
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 c
witnesses as witness A, B and C and further to submit
periodical status reports. In the same matter, the Bench
entertained another Criminal Miscellaneous Application
on 30.10.2007 filed by 'DPSB' (a convict in another case
and lodged in Tihar Jail) regarding allegations that his
0
father and maternal uncle had been abducted in the year
1991. The High Court directed the CBI to investigate the
allegations made in the complaint filed by 'DPSB'. The
CBI after making a preliminary investigation/enquiry on
the application, registered an FIR on 2.7.ZOOS under E
Sections 120-B, 364, 343, 330, 167 and 193 IPC against
'SSS,' the then SSP and other police officers.
The instant appeals were filed on various grounds,
including: the judicial bias of the Judge presiding over
the Bench by making specific allegations that the officer
F
named in the order had conducted an enquiry against the
Presiding Judge (Mr. Justice X) on the direction of the
Chief Justice of Punjab & Haryana High Court and, thus,
the said Judge ought not to have proceeded with the
matter, rather should have recused himself from the G
case; and that as the judgment in appeal against acquittal
was passed by the Court on 11.5.2007 upholding the
judgment of acquittal, the Court became functus officio
and it had no competence to reopen the case by order
dated 30.5.2007.
H
546 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A
Allowing the appeals, the Court
HELD: I. JUDICIAL BIAS: 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
8 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,
C 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. This principle
is derived from the legal maxim - nemo debet esse judex
in causa propria sua. It applies only when the interest
D 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.
The failure to adhere to this principle creates an
E 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
F is a likelihood of bias affecting the decision. 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
3 way. Public policy requires that there should be no doubt
about the purity of the adjudication 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
H faith. A judgment which is the result of bias or want of
STATE OF PUNJAB v. DAVINDER PAL SINGH
547
BHULLAR & ORS. ETC
impartiality, is a nullity and the trial "coram non judice".
A
Therefore, the consequential order, if any, is liable to be
quashed. 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
B
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 c
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". [Paras 10, 14, 16, 20] [579-E-F; 581C-D-F; 582-8-C; 584-H; 585-A-C]
D
State of West Bengal & Ors. v. Shivananda Pathak & Ors.
AIR 1998SC 2050; Bhajan Lal, Chief Minister, Haryana v. Ml
s. Jindal Strips Ltd. & Ors. (1994) 6 SCC 19; Rameshwar
Bhartia v. The State of Assam AIR 1952 SC 405; Mineral
Development Ltd. v. The State of Bihar & Anr. AIR 1960 SC
E
468; Meenglas Tea Estate v. The Workmen AIR 1963 SC
1719; The Secretary to the Government, Transport
Department, Madras v. Munuswamy Mudaliar & Ors. AIR
1988 SC 2232; A.U. Kureshi v. High Court of Gujarat & Anr.
(2009) 11 SCC 84; Mohd. Yunus Khan v. State of U.P. & Ors.
F
(2010) 10 SCC 539) Manak Lal, Advocate v. Or. Prem Chand
Singhvi & Ors. AIR 1957 SC 425; Vassi/iades v. Vassiliades
AIR 1945 PC 38; S. Parthasarathi v. State of Andhra Pradesh
AIR 1973 SC 2701; Ranjit Thakur v. Union of India & Ors.
AIR 1987 SC 2386; Rupa Ashok Hurra v. Ashok Hurra & Anr.
G
(2002) 4 SCC 388; Justice P.O. Dinakaran v. Hon'ble Judges
Inquiry Committee (2011) 8 SCC 380 - relied on.
In re: Linahan, 138 F. 2nd 650 (1943); Public Utilities
Commission ofthe District of Columbia v. Franklin S. Pollak
H
548
SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R.
A 343 US 451 (1952) 466; Ex Parte Pinochet Ugarte (No.2)
1999 All ER, 577; Locabail (UK) Ltd. v. Bayfield Properties
Ltd. & Anr. (2000) 1 All ER 65 - referred to.
B
II. DOCTRINE OF WAIVER:
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
C 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.
D Inaction in every case does not lead to an inference of
implied consent or acquiescence. 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,
E 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. It is apparent that the issue
F 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
G 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
H sufficient to create rights in other party. Needless to say
STATE OF PUNJAB v. DAVINDER PAL SINGH
549
BHULLAR & ORS. ETC
that question of waiver/acquiescence would arise in a 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. [paras 21-23, 25] [585-F-G; 586-D-G; 587-EB
G]
.
Mis. Pannalal Binjraj & Ors. v. Union of India & Ors., AIR
1957 SC397; Justice P.O. Dinakaran (2011) 8 SCC 380; Ml
s. Power Control Appliances & Ors. v. Sumeet Machines Pvt.
C
Ltd. (1994) 2 SCC 448; P. ohn Chandy & Co. (P) Ltd. v. John
P. Thomas AIR 2002 SC 2057; Oawsons Bank Ltd. v. Nippon
Menkwa Kabushihi Kaish AIR 1935 PC 79; Basheshar Nath
v. Commissioner of Income-tax, Delhi and Rajasthan & Anr.
AIR 1959 SC 149; Mademsetty Satyanarayana v. G. Yel/oji
Rao & Ors., AIR 1965 SC 1405; Associated Hotels of India
D
Ltd~ v. S. B. Sardar Ranjit Singh AIR 1968 SC 933;
Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal
Corporation & Ors. (1992) Suppl 1 SCC 5; Mis. Sikkim
Subba Associates v. State of Sikkim AIR 2001 SC 2062;
Krishna Bahadur v. Mis. Puma Theatre &Ors. AIR 2004 SC
E
4282; Municipal Corporation of Greater Bombay v. Dr.
Hakimwadi Tenants' Association & Ors. AIR 1988 SC 233 -
relied on. '
Ill. BAR TO REVIEW/ALTER- JUDGMENT
F
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
G
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
H
550 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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.
B There is also no provision for modification of the
judgment. 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
c 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
0 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 Cr.P.C. would not operate.
E 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.
This Court by virtue of Article 137 of the Constitution has
F been invested with an 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. (paras 26, 27,
G 28] (588-A-H; 589-A-B-D]
Hari Singh Mann v. Harbhajan Singh Bajwa & Ors. AIR
2001 SC 43;Chhanni v. State of U.P. AIR 2006 SC 3051;
Moti Lal v. State of M.P.AIR 1994 SC 1544; State of Kera/a
H v. M.M. Manikantan Nair AIR 2001 SC 2145; Chitawan &
STATE OF PUNJAB v. DAVINDER PAL SINGH
551
BHULLAR & ORS. ETC
Ors. v. Mahboob l/ahi 1970 Crl.L.J. 378; Deepak Thanwardas
A
Ba/wani v. State of Maharashtra & Anr. 1985
Crl.L.J. 23;
Habu v. State of Rajasthan AIR 1987 Raj. 83 (F.B.);Swarth
Mahto & Anr. v. Dharmdeo Narain Singh AIR 1972 SC 1300;
Makkapati Nagaswara Sastri v. S.S. Satyanarayan AIR 1981
SC 1156; Asif Kumar Kar v. State of West Bengal & Ors.
B
(2009) 2 SCC 703; Vishnu Agarwal v. State of U.P. & Anr. AIR
2011 SC 1232; State Represented by D.S.P., S.B.C.l.D.,
Chennai v. K. V. Rajendran & Ors. AIR 2009 SC 46; Smt.
Sooraj Devi v. Pyare Lal & Anr. AIR 1981 SC 736 - relied
on.
IV. INHERENT POWERS UNDER SECTiON 482 Cr.P.C.
4.1. The inherent power under Section 482 Cr.P.C. is
intended to prevent the abuse of the process of the Court
c
and to secure the ends of justice. Such power cannot be
0,
exercised to do something which is expressly barred
under the Cr.P.C. If any consideration of the facts by way·
of review is not permissible under the Cr.P.C. 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
E
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
F
circumstances and the decision has to be arrived at on
the facts that e)\isted 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 !Jarred under Section 362
G
Cr.P.C. [para 31] [590-B-E]
Simrikhia 11. Dolley Mukherjee and Chhabi Mukherjee &
Anr, (1990) 2 SCC 437; Kurukshetra University & Anr. v. State
of Haryana & Anr. AIR 1977 SC 2229; State of WB. & Ors.
H
552
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A v. Sujit Kumar Rana (2004) 4 SCC 129 - relied on.
4.2. The power under Section 482 Cr.P.C. cannot be
resorted to if there is a specifU: provision in the Cr.P.C.
for the redressal of the grievance of the aggrieved party
B or where alternative remedy is available. 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
C wrong in course of administration of justice as provided
in the legal maxim "quando lex a/iquid alique, concedit,
conceditur et id sine quo res ipsa esse non potesf'.
However, the High Court has not been given nor does it
possess any inherent power to make any order, which in
D 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. [para 33] [591-B-F]
La/it Mohan Monda/ & Ors. v. Benoyendra Nath
E Chatterjee AIR 1982 SC 785; Rameshchandra Nandlal
Parikh v.• State of Gujarat & Anr. AIR 2006 SC 915; Central
Bureau of Investigation v. Ravi Shankar Srivast-ava, /AS &
Anr. AIR 2006 SC 2872; lnder Mohan Goswami & Anr. v.
State of Uttarancha/ & Ors. AIR 2008 SC 251; Pankaj Kumar
F v. State of Maharashtra & Ors. AIR 2008 SC 3077 - relied
on.
4.3. The High Court can always issue appropriate
direction in exercise of its power under Article 226 of the
G 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, th~
High Court cannot direct the police as to how the
investigation is to be conducted but can insist only for
H
STATE OF PUNJAB v. DAVINDER PAL SINGH
553
BHULLAR & ORS. ETC
lhe observance of process as provided for in the Cr.P.C.
A
"6.nother remedy available to such an aggrieved person
"'llay be to file a complaint under Section 200 Cr.P.C. and
lhe court concerned will proceed as provided in Chapter
-XV of the Cr.P.C. The provisions of Section 482 Cr.P.C.
::losely resemble Section 151, CPC and, therefore, the
B
irestrictions which are there to use the inherent powers
111nder Section 151 CPC are applicable in exercise of
ipowers under Section 482 Cr.P.C. and one such
•restriction is that there exists no other provision of law
lby which the party aggrieved could have sought relief. C
![Paras 34-35] [591-H; 592-A-D]
Gangadhar Janardan Mhatre v. State of Maharashtra &
•Ors., (2004) 7 SCC 768; Divine Retreat Centre v. State of
•Kera/a & Ors. AIR 2008 SC 1614; The Janata Dal v. H.S.
-Chowdhary & Ors. AIR 1993 SC 892; Divisional Forest Officer D
& Anr. v. G. V. Sudhakar Rao & Ors. AIR 1986 SC 328;
.Popular Muthiah v. State represented by Inspector of Police
1(2006) 7 SCC 296; Rajan Kumar Machananda v. State of
l/<.amataka 1990 (supp.) SCC 132; Joseph Peter v. State of
•Goa, Daman and Diu AIR 1977 SC 1812- relied on.
E
4.4. The rule of inherent powers has its source in the
maxim "Quado/ex aliquid a/icui concedit, concedere videtur
iid sine quo ipsa, ess uon potest" which means that when
lthe law gives anything to anyone, it gives <1lso all those
F
!things without which the thing itself could not exist. The
,order cannot be passed by-passing the procedure
1Prescribed by law. The court in exercise of its power under
Section 482 Cr.P.C. cannot direct a particular agency to
linvestigate the matter or to investigate a case from a G
1particular angle or by a procedure not prescribed in
~r.P.C. Such powers should be exercised very sparingly
Ito prevent abuse of process Qf any court. Courts must be
careful to see that its decision in exercise of this power
ijs based on sound principles. To inhere means that it H
554 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A forms a necessary part and belongs as an attribute in the
nature of things. The High Court under Section 482
Cr.P.C. is crowned with a statutory power to exercise
control over the administration of justice in criminal
proceedings within its territorial jurisdiction. This is to
B ensure that proceedings undertaken under the Cr.P.C.
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 intended the existence
C of such power in the High Court to control proceedings
initiated under the Cr.P.C. 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 divire nor limitless.
0 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
E 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. [Para 40] [593-G-H; 594F A-G]
4.5. Application under Section 482 Cr.P.C. lies before
the High Court against an order passed by the court
subordinate to it in a pending case/proceedings.
G 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
H the abus~ of the "process" of the court and/or calls for
STATE OF PUNJAB v. DAVINDER PAL SINGH
555
BHULLAR & ORS. ETC
interference to secure the ends of justice. The use of A
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 B
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 c
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 o
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
E
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
Cr.P.C. To secure the corpus of an individual, remedy by
way of habeas corpus is available. For that the High Court
F
should not resort to inherent powers under Section 482
Cr.P.C. as the Legislature has conferred separate powers
for the same. Needless to mention that Section 97 Cr.P.C.
empowers Magistrates to order the search of a person
wrongfully confined. It is something different that the
G
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
H
556
SUPREME COURT REPORTS [2011) 15 (ADUL.) S.C.R.
A the wisdom of the Legislature. To confer un-briddled
inherent power would itself be trenching upon the
authority of the Legislature. [Para 40) [594-H; 595-A-H;
596-A-B]
B V. JURISDICTION OF THE BENCH :
5. The Chief Justice is the master of roster. 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. The Bench gets
C 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
D may be without jurisdiction and made the Judge coram
non-judice. [Paras 42-43) [587 -C-D; 598-0-E]
State of Rajasthan v. Prakash Chand & Ors. AIR 1998
SC 1344; State of U.P. & Ors. v. Neeraj Chaubey & Ors.
E (2010) 10 SCC 320; State of Maharashtra v. Narayan
Shamrao Puranik AIR 1982 SC 1198; lnder Mani v.
Matheshwari Prasad (1996) 6 SCC 587; R. Rathinam v. State
(2002) 2 SCC 391 ; Jasbir Singh v. State of Punjab (2006) 8
sec 294 - reffed on.
F
Sanjay Kumar Srivastava v. Acting Chief Justice, 1996
AWC 644 - approved.
VI. WHEN CBI ENQUIRY CAN BE DIRECTED:
G
A constitutional court can direct the CBI to
investigate ~nto 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
H against whom the investigation is sought, is to be·
STATE OF PUNJAB v. DAVINDER PAL SINGH
557
BHULlAR & ORS. ETC
impleaded as a party and must be given a reasonable
A
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
B
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. [para 48] [600-B-D]
Secretary, Minor Irrigation and Rural Engineering
SeNices, U.P. & Ors. v. Sahngoo Ram Arya & Anr. AIR 2002
SC 2225; Common Cause, A Registered Society v. Union
of India & Ors. (1999) 6 SCC 667; D. Venkatasubramaniam
c
& Ors. v. M.K.Mohan Krishnamachari & Anr. (2009) 10 SCC
D
488; Disha v. State of Gujarat & Ors. AIR 2011 SC 3168;
Vineet Narain & Ors. v. Union of India & Anr. AIR 1996 SC
3386; Union of India v. Sushi/ Kumar Modi (1998) 8 SCC
661; Rajiv Ranjan Singh 'La/an' (VIII) v. Union of India (2006)
6 SCC 613; Rubabbuddin Sheikh v. State of Gujarat & Ors.
E
AIR 2010 SC 3175; Ashok Kumar Todi v. Kishwar Jahan &
Ors, (2011) 3 SCC 758 - relied on.
7.1. The instant appeals are decided in the light of the
said settled legal propositions. It is evident from the
F
judgment and order dated· 11.5.2007 that the criminal
appeal stood dismissed. The order sheet dated 30.5.2007
revealed that in spite of the disposal of the said criminal
appeal it had been marke.d therein as "put up for further
hearing" and directions were given to the trial court to
G
furnish a detailed report as to the measures taken by it
to bring the proclaimed offenders before the Court. The
order dated 5.9.2007 s.howed that the Bench headed by
Mr. Justice X was furnished with full information
regarding proclaimed offenders by the authorities. The · H
558 SUPREME COURT REPORTS [2011) 15 (ADDL.) S.C.R.
A order dated 19.9.2007 revealed that the Bench 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 record revealed that 'DPSB'
was involved in assassination attempt of 'MSB'. He was
B convicted and given the death sentence. Ever since 2003,
'DPSB' 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
c various other matters after the disposal of the- criminal
appeal against acquittal. The Court was fully aware that
another relative of 'DPSB' had filed a case before the High
Court in the year 1997, for production of 'BSB', the father
of 'DPSB' and not for his uncle. The High Court had
0 rejected the said petition and the matter was not agitated
further attained finality. [paras 50-52] [600-F-G; 601-D-E;
602-E-H; 603-A]
7 .2. It is evident that the court was very much
anxious to know about the proclaimed offenders,
E 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 son of 'DSM' had
also been killed. Therefore, the chapter regarding the
F proclaimed offenders was closed.· There was no
occasion for the Court to proceed further with the matter
and entertain the applications under Section 482 Cr.P.C.,
filed by 'DSM' and 'DPSB'. The Bench was not competent
to entertain the said applications and even if the same
G 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. It is evident from the
order dated 30.5.2007 that in spite of the fact that the
appeal stood disposed of on 11.5.2007, there appeared
H an order in t'1e file: "put up for further hearing". That
STATE OF PUNJAB v. DAVINDER PAL SINGH
559
BHULLAR & ORS. ETC
meant the matter was to be heard by the same Bench
A
-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
B
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
revealed that it was directed to put up the case for further c
hearing. Thus, it should have been heard .by the Bench
as it was on 30.5.2007. [paras 54-55] [603-H; 604-A-G]
8. The chargesheet in the trial court itself revealed
that two accused had died. The State counsel failed to
bring these facts to the notice of the court. The order D
dated 5.10.2007 though gave 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 read that particular persons were
E
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
F
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 Section 482 Cr.P.C. petitions
or place the matters before the Chief Justice for G
appropriate orders. 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 'SSS' could be held to be
1-i
560
SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R.
A 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
B only rorhen the High C_ourt entertained the applications
filed under Section 482 Cr.P.C. for tracing out the
whereabouts of certain persons allegedly missing for the
past 20 years.