# MD. SHAHABUDDIN v. STATE OF BIHAR & ORS

- **Citation:** [2010] 3 S.C.R. 911
- **Court:** Supreme Court of India
- **Decided:** 2010-03-25
- **Case number:** Criminal Appeal No. 591 of 2010
- **Bench:** Dalveer Bhandari, Dr. Mukundakam Sharma
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/md-shahabuddin-v-state-of-bihar-ors-26789
- **Pages:** 119

## Headnote

Code of Criminal Procedure, 1973:
A
B
c
ss. 9(6), 11, 407 and 465 - Notification by High Court
shifting the venue of Court of Session inside the District Jail,
and Notification by State Government establishing Court of
Judicial Magisrate 1st class inside District Jail to try cases
pending against accused - HELD: Are valid - High Court in 0
exercise of its administrative power uls 9(6) is empowered to
shift the venue of the pending case/trial without hearing the
accused and this would not violate his fundamental rights
under Articles 14 and 21 or any other provision of the
Constitution -
The power of High Court uls 9(6) is E
administrative in natur~ and as such, it is under no obligation
to observe the rule of audi alteram partem - By issuing the·
Notification, High Court cannot be said to have transfered the
cases pending against the accused - There was a shift
simpliciter in the venue of the trial without there being
anything more - Delay in publishing the Notification and F
supplying a copy thereof to accused would not vitiate the trial
as no prejudice is caused to him- Notification dated 7.6.2006
issued by State Government establishing the Court of Judicial
Magistrate 1st Class inside the District Jail satisfies all the
requirements of s. 11 - Constitution of India, 1950 -Articles G
14 and 21 - Principle of natural justice - Rule of audi
alteram partem - Interpretation of Statutes - Judicial Review
- Practice and Procedure.
911
H
912
SUPREME COURT REPORTS
(2010] 3 S.C .. R.
A
s. 327 - Court to be open - Trial of accused inside the
jail - HELD: Open trial is an important part of judicial system
- Public access is essential to achieve the objective of
maintaining public confidence in the administration of justice
- Although the universal rule is that criminal trial should be
B
an open trial, but in exceptional cases, there can be deviation
from the rule in larger public interest - The instant case falls
in the category of and exceptional cases where, in the
interest of justice, it became imperative to shift the venue of
the . trials inside the jail - However, there is no presumption
C
that a trial in prison is not an open trial - Apart from the large
number of lawyers of the accused, press and those who want
to watch the trial have free access to the venue during the courl
proceedings - Thus, no prejudice is caused to the appellant
-
Constitution of India, 1950 - Articles 14 and 21 -
D Administration of Justice - Open trial.
Constitution of India, 1950:
Article 14 -
Equality before law -
Reasonable
classification - A classification may be reasonable even
E
though a single individual is treated as a class by himself -
· Code of Criminal Procedure, 1973 - s.9(6).
F
G
Plea:
New pleas regarding constitutional validity of s. 9(6) CrPC
and delay in publication of notification in official gazette and
in supply of copy thereof to accused raised at the time of
hearing of appeal before Supreme Court - HELD: Not
maintainable.
Evidence Act, 1872:
s.114, Illustration {e) - Presumption that official act has
been regularly performed - In the Notification issued by the
State Government stating that Courl of Session would hold
its sitting inside District Jail, apart from mentioning s.9(6)
H CrPC, s.14(1) of Bengal, Assam and Agra Civil Courts Act,
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
913
1887 also referred - HELD: If the notification refers to a wrong A
provision, the same cannot be held to be invalid when its
validity could be upheld on the basis of some other provision
- In the instant case, notification was valid in view of provisions
of s.9(6) CrPC- Besides statutory presumption as envisaged
by s. 114 Illustration (e) would also be available - Code of B
Criminal Procedure, 1973 - s.9(6) - Practice and Procedure.
The appellant, a sitting M.P., was involved in a large
number of criminal cases and, as such, was in custody
in District Jail, Siwan in the State of Bihar. The
Superintendent of Police reported that more than forty C
cases we

## Text

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[2010] 3 S.C.R. 911
MD. SHAHABUDDIN
v.
STATE OF BIHAR & ORS.
(Criminal Appeal No. 591 of 2010)
MARCH 25, 2010
[DALVEER BHANDARI AND DR. MUKUNDAKAM
SHARMA, JJ.]
Code of Criminal Procedure, 1973:
A
B
c
ss. 9(6), 11, 407 and 465 - Notification by High Court
shifting the venue of Court of Session inside the District Jail,
and Notification by State Government establishing Court of
Judicial Magisrate 1st class inside District Jail to try cases
pending against accused - HELD: Are valid - High Court in 0
exercise of its administrative power uls 9(6) is empowered to
shift the venue of the pending case/trial without hearing the
accused and this would not violate his fundamental rights
under Articles 14 and 21 or any other provision of the
Constitution -
The power of High Court uls 9(6) is E
administrative in natur~ and as such, it is under no obligation
to observe the rule of audi alteram partem - By issuing the·
Notification, High Court cannot be said to have transfered the
cases pending against the accused - There was a shift
simpliciter in the venue of the trial without there being
anything more - Delay in publishing the Notification and F
supplying a copy thereof to accused would not vitiate the trial
as no prejudice is caused to him- Notification dated 7.6.2006
issued by State Government establishing the Court of Judicial
Magistrate 1st Class inside the District Jail satisfies all the
requirements of s. 11 - Constitution of India, 1950 -Articles G
14 and 21 - Principle of natural justice - Rule of audi
alteram partem - Interpretation of Statutes - Judicial Review
- Practice and Procedure.
911
H
912
SUPREME COURT REPORTS
(2010] 3 S.C .. R.
A
s. 327 - Court to be open - Trial of accused inside the
jail - HELD: Open trial is an important part of judicial system
- Public access is essential to achieve the objective of
maintaining public confidence in the administration of justice
- Although the universal rule is that criminal trial should be
B
an open trial, but in exceptional cases, there can be deviation
from the rule in larger public interest - The instant case falls
in the category of and exceptional cases where, in the
interest of justice, it became imperative to shift the venue of
the . trials inside the jail - However, there is no presumption
C
that a trial in prison is not an open trial - Apart from the large
number of lawyers of the accused, press and those who want
to watch the trial have free access to the venue during the courl
proceedings - Thus, no prejudice is caused to the appellant
-
Constitution of India, 1950 - Articles 14 and 21 -
D Administration of Justice - Open trial.
Constitution of India, 1950:
Article 14 -
Equality before law -
Reasonable
classification - A classification may be reasonable even
E
though a single individual is treated as a class by himself -
· Code of Criminal Procedure, 1973 - s.9(6).
F
G
Plea:
New pleas regarding constitutional validity of s. 9(6) CrPC
and delay in publication of notification in official gazette and
in supply of copy thereof to accused raised at the time of
hearing of appeal before Supreme Court - HELD: Not
maintainable.
Evidence Act, 1872:
s.114, Illustration {e) - Presumption that official act has
been regularly performed - In the Notification issued by the
State Government stating that Courl of Session would hold
its sitting inside District Jail, apart from mentioning s.9(6)
H CrPC, s.14(1) of Bengal, Assam and Agra Civil Courts Act,
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
913
1887 also referred - HELD: If the notification refers to a wrong A
provision, the same cannot be held to be invalid when its
validity could be upheld on the basis of some other provision
- In the instant case, notification was valid in view of provisions
of s.9(6) CrPC- Besides statutory presumption as envisaged
by s. 114 Illustration (e) would also be available - Code of B
Criminal Procedure, 1973 - s.9(6) - Practice and Procedure.
The appellant, a sitting M.P., was involved in a large
number of criminal cases and, as such, was in custody
in District Jail, Siwan in the State of Bihar. The
Superintendent of Police reported that more than forty C
cases were pending against the appellant and there was
serious danger to public peace during his presence in
the court premises; that his supporters and other
criminals could attack the witnesses; that since the
appellant was accused in many cases, other criminal D
groups could also attack him. The matter was taken up
by the Law Secretary of the State with the Registrar
General of the High Court and ultimately, the High Court
in exercise of its powers, under sub-section (6) of s.9 of
the Code of Criminal Procedure, 1973, issued Notification E
dated 20.5,2006 stating that the premises of District Jail,
Siwan would be the place of sitting of the Court of
Session for the Sessions Division of Siwan for
expeditious trial of the Sessions cases pending against
the appellant. Thereafter, the State Government issued
F
Notification dated 7.6.2006 to the effect that Court of
Judicial Magistrate I Class, Siwan would hold its sitting
inside the District Jail, Siwan for trial of cases pending
against the appellant. Another Notification dated 7.6.2006,
issued by the State Government, stated that the Additional G
District and Sessions Judge of Siwan Sessions Division "'-· ·.
would hold its sitting inside the District Jail, Siwan to try
Sessions cases pending against the appellant. The
appellant challenged all the three Notifications before the
High Court in a writ petition, which was dismissed.
H
914
SUPREME COURT REPORTS
[201 OJ ~ ,s.C.R.
A
In the instant appeal it was primarily conter:ded for
the appellant that the power u/s 9(6) of the Code of
Criminal Procedure, 1973 could not be exercised for a
particular individual or accused, and if at all, the principle
of 'audi alteram partem' ha~ to be complied with; that the
B
Notification .dated 20.5.2006 was vitiated a~ copy thereof
was not supplied to the appellant; that changing the
venue of the Court inside the District Jail would violate
the right of the appellant to be tried in an open court.
c
Dismissing the appeal, the Court
HELD: Per Dalveer Bhandari, J
1.1The High Court, in view of the extraordinary facts
and circumstances of a particular case, is empowered to
0
change the venue of the pending case/trial without
hearing the accused and this would not violate his
fundamental rights guaranteed under Articles 14 and 21
or any other provision of the Constitution. This
controversy is no longer res integra and is fully settled
E
in view of the judgment of this Court in Kehar Singh's
case.* [para 153.IV] [998-C-D]
F
*Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 = 1988 sec (3) 609, relied on.
1.2. In the instant case, the record indicates that by
the criminal acts of the appellant reign of terror had
spread. The appellant has also earned enemies who
would like to seize upon an opportunity and endanger his
life if the trial is conducted in general court.
G Simultaneously, other criminals owing allegiance to the
appellant are likely to create law and order problem
including communal tension and endanger the life of the
common public during his trial in general court. After
assessing the ent+re situation, the District Magistrate
H informed the State Government that trial of the appellant
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
915
was not possible in the District Court of Siwan. Pursuant A
to the report of the District Magistrate, the Law Secretary,
Government of Bihar made a request to the High Court
for designation of Court of Session and Court of Judicial
Magistrate, 1st Class inside the Siwan Jail premises for
expeditious trial of the cases pending against the B
appellant. After evaluating and assessing the entire
situation, the notification was issued by the High Court
as also by the State Government in consultation with the
High Court for sitting and establishment of courts for
expeditious trial of cases pending against the appellant. c
[Para 38 and 39] [953-G-H; 954-A-D]
2.1. This Court in Kehar Singh's case has held that the
order of the High Court notifying the trial of a particular
case in a place other than the court house is not a judicial
order but an administrative order. It is clear from the D
wordiny of Section 9 of the Code of Criminal Procedure,
1973 that there is no need for the High Court to give ·a
hearing while deciding the venue of the trial. It is,
therefore, clear that there is no statutory right for the
appellant to be heard. [Para 103-105) [979-G-H; 980-A-FE
H]
2.2. The principles of natural justice are essential to
the framework of our laws and
protection against
arbitrary actions. It is the bounden duty of the courts to
F
judicially review administrative actions. However, this
power has to be exercised judiciously. In the instant case,
there is no violation of the principles of natural justice in
shifting the trials of the cases of the appellant from a
regular court to a special court. When there is no prima G
facie violation of the principles of natural justice then one
must properly consi-der whether there is need for a
judicial review of the orders of shifting the trials. [Para
105, 108, 110 and 111] [981-D-E; 982-C-D]
H
916
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
State Bank of Patiala & Others v. S.K. Sharma (1996) 3
sec 364, relied on.
Wiseman & Another v. Borneman & Others (1971) A.C.
297; Regina v. Gaming Board for Great Britain (1970) 2 Q.B.
B 417, referred to.
3.1. The decision to hold the trials of cases of the
appellant in jail was taken in pursuance of the notification
dated 20.5.2006 issued by the High Court. The State
Government issued two notifications on 7th June, 2006
C in pursuance of the notification of the High Court dated
20.5.2006. It became imperative for the State to issue the
said notifications because of the Notification of High
Court dated 20.5.2006 particularly when the new venue
of the trial, i.e., Siwan Jail, was not within the control of
D the High Court. All the three notifications are valid and
were issued in consonance with the relevant provisions
of law. [para 153.11 and Ill] [997-G-H; 998-A-B]
3.2. After the High Court took the decision to
E establish a Court of Additional District and Sessions
Judge in
the
Siwan District Jail,
necessary
correspondence/instruments/requests were sent by the
High Court for implementation of its decision, which
ultimately culminated in the two Notifications issued by
F
the State Government on 7th June, 2006 and also
culminated in the Notification of the 20th May 2006 being
gazetted on 16th August, 2006. There is, therefore, no
scope for any person, leave alone the appellant, to
contend that the decision was not of the High Court or
G High Court never applied its mind. [para 52] [959-B-D]
H
4. A notification empowering a Court of Session to
sit and hold a trial inside the jail is not outside the purview
of s.465 of the Code. It would come within the meaning
of "other proceedings" "during a trial", because as per
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
917
the admission of the appellant the trial has already been
A
started. [Para 57] [961-A]
5. It cannot be said that the entire trial would vitiate
because of non-supply of a copy of the notification dated
20.5.2006 to the appellant in time. The High Court was
B
correct in ordering that a copy of the notification be
supplied to the appellant. Initially the copy of the
notification was not given to the appellant but on the
directions of this Court the same was made available to
the appellant. So there is no surviving grievance of the
C
appellant as far as this aspect of the matter is concerned.
[para 141 and 153.I] [994-G-H; 997-E-F]
Managing pirector, ECIL, Hyderabad etc. etc. v. B.
Karunakar etc. etc. (1993) 4 SCC 727; and State Bank of
Patiala & Others v. S.K. Sharma (1996) 3 SCC 364, relied
D
on.
6.1. Criminal trial is a public event. What transpires
is a public property. Therefore, open trial is the universal
rule and must be scrupulously adhered to. The right to
public trial has also been recognized u/s 327 of the Code.
Public trial is an important part of the judicial system.
E
F
Every criminal act is an offence against the society. The
people are, therefore, entitled to know whether the justice
delivery system is adequate or inadequate; whether it
responds appropriately to the situation or it presents a
pathetic picture. The other aspect, which is still more
fundamental, is that when the State representing the
society seeks to prosecute a person, it must do so
openly. In dispensation of justice, the people should be
G
satisfied that the State is not misusing its machinery viz.
the Police, the Prosecutors and other Public Servants.
The people may see that the accused is fairly dealt with
and not unjustly condemned. [para 102,131,132 and 145]
{979-C; 989-C-D; 990-B-C; 995-D-E]
H
918
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 =1988 sec (3) 609, relied on.
Ajit Kumar Nag v. General Manager (P.J.), Indian Oil
Corporation Ltd.; Haldia & Others (2005) 7 SCC 764, referred
B to
c
Scott & Another v. Scott: 1913 A.C. 417, referred to.
Cooley's Constitutional Law, Vol I, 8th edn., at page 647,
referred to.
6.2. There is yet another aspect. The courts like other
institutions also belong to people. They are as much
human institutions as any other, and could survive only
by the strength of public confidence. The public
confidence can be fostered by exposing courts more and
D more to public gaze. Public access is essential if trial
adjudication is to achieve the objective of maintaining
public confidence in the administration of justice.
Publicity is the authentic hallmark of judicial functioning
distinct from administrative functioning. Open trial serves
E an important prophylactic purpose, providing an outlet
for community concern, hostility, and emotion. It restores
the balance in cases when shocking crime occurs in the
society. [Para 132, and 142-144] [990-C-D; 995-A-C; 994G-H]
F
G
H
Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 =1988 SCC (3) 609; and Naresh Shridhar
Mirajkar v. State of Maharashtra (1966) 3 SCR 744, relied
on.
"First Amendment Right of Access to Pretrial Proceeding
in Criminal Cases" by Beth Hornbuckle Fleming Emory Law
Journal, V.32 (1983) P.619, referred to.
Gannett Co. Inc. v. Danial A. DePasquale (1979) 443
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
919
U.S. 368; Richmond Newspapers, Inc. et al v. Commonwealth A
of Virginia et al SSL Ed 2d 973 = (1980) 448 US 555; Globe
Newspaper Co. v. Superior Court for the County of Norfolk
(1982) 457 US 596 : 73 L.Ed. 2d 248, referred to.
6.3. Although the universal rule as recognized in all
8
civilized countries governed by rule of law is that the ·
criminal trial should be a public trial or open trial, but in
exceptional cases there can be deviation from the
universal rule in the larger public interest. However, in
order to ensure that the right of the appellant to a public C
trial is not vitiated by the court being set up inside the jail,
the State must demonstrate that: (a) there is a clear and
logical reason as to why the case was transferred from
the court house to the Jail; and (b) nobody is being
denied entry to the court room as long as they agree to 0
the regular security checks. The case in hand would fall
in the category of those extraordinary and exceptional
cases where in the interest of justice it became imperative
to shift the venue of the trial. The letters exchanged
between the police authorities and the request made to
High Court clearly show that there was serious danger E
in producing the appellant in open court. The police
authorities had shown that the appellant being a sitting
M.P., his supporters and the large crowds were making
a fa.ir trial impossible and creating delays in deciding the
cases. Besides, since the appellant was wanted in many F
cases, other criminal groups could also attack him. It
must be noted that a large number of supporters of the
appellant may create unrest in front of the court room and
much larger security would be required to protect the
witnesses, the officers of the Court and the appellant. It G
is necessary to maintain the discipline of the court which
is not only trying the case of the appellant but a large
number of other cases which were getting delayed by the
presence of a large number of the supporters of the
appellant. [para 110, 127,138,139,146,149 and 154) [982~ H
920
SUPREME COURT REPORTS
[2010) 3 S.C.R.
A
B; 987-D-E-H; 993-G-H; 994-A-B; 998-F-G]
Alfred Thangarajah Durayappah of Chundikuly v. W.J.
Fernando & Others (1967) 2 AC 337, referred to.
8
6.4. There is no presumption that a trial in prison is
not an open trial. The appellant has merely stated that the
trial of his cases has been transferred from the Siwan
Court to the Siwan Jail. This in itself does not prove that
the trial has been closed to the public. In order to establish
that the appellant's right to a open trial has been denied,
C the appellant has to prove more than mere shifting of the
location of the trial. It has been shown by the
respondents that no one had been prevented from
attending or watching the trial. Apart from appellant's 38
lawyers, the public and the press used to attend to the
D court proceedings. The Siwan Jail is only one kilometer
from the Siwan Court. The court proceedings were
regularly reported in the press. So, jn the instant case no
real prejudice has been caused to the appellant. [Para
112,117, 119, 121 and 153V] [983-A-B; 984-C; 985-8-C-F;
E
998-D-E]
K.L. Tripathi v. State Bank of India & Others (1984) 1
SCC 43; R. Balakrishna Pillai v. State of Kera/a (2000) 7
SCC 129; Jankinath Sarangi v. State of Orissa (1969) 3 SCC
F
392; A.K. Roy & Others v. Union of India & Others (1982) 1
SCC 271 and Sahai Singh v. Emperor AIR 1917 Lah. 311,
referred to.
Samuel H. Sheppard v. E.L. Maxwell 384 U.S. 333
G (1966); Press-Enterprise Co. v. Superior Court 478 U.S. 1
(1986); State of Oregon v. James Donald Jackson 178 Or
H
App 233, 36 P3d 500 (2001); Stephen Gary Howard v
Commonwealth of Virginia 6 Va. App. 132 (1988); Adolph
Dammerau v. Commonwealth of Virginia 3 Va. App. 285
(1986); The People v. Robert England the Court 83 Cal. App.
-
MD. SHAHABUDDIN v. STATE OF B!HAR & ORS.
921
4th 772 (2000); Malloch v. Aberdeen Corporation (1971) 1 A
W.L.R. 1578; and George v Secretary of the State for the
Environment (1979) 77 L.G.R. 689 (1979), referred to.
Union of India & Another v. Tulsiram Patel & Others
1985 (2) Suppl. SCR 131 = (1985) 3 sec 398 ; E. P.
B
. Royappa v. State of Tamil Nadu 1974 (2) SCR 348 = (1974)
4 SCC 3; Maneka Gandhi v. Union of India 1978 (2) SCR
621 =(1978) 1 SCC 248; Delhi Transport Corporation v.
D. T.C. Mazdoor Congress & Others 1990 (1)
Suppl.
SCR 142 =1991 (Supp) 1 SCC 600; D.~. Yadav v. J.M.A.
C
Industries Ltd. 1993 (3) SCR 930 = (1993) 3 SCC 259; State
of WB. v. Anwar Ali Sarkar AIR 1952 SC 75; Krishan Lal v.
State of J&K 1994 (2) SCR 149 = (1994) 4 SCC 422; State
of Karnataka v. Kuppuswamy Gownder & Others 1987 (2)
SCR 295 = (1987) 2 SCC 74; Ranbir Singh v. State of Bihar
(1995) 4 SCC 392; Zahira Habibul/ah H. Shaikh & Another D
v. State of Gujarat & Others (2004) 4 SCC 158; Ranjit Singh
v. Hon'ble the Chief Justice & Others ILR 1985 Delhi 388;
Kai/ash Nath Agarwal & Another v. Emperor AIR (34) 1947
Allahabad 436; re M. R. Venkataraman AIR (37) 1950
Madras 441; re T. R. Ganeshan AIR (37) 1950 Madras 696;
E
Prasanta Kumar Mukerjee v. The State AIR (39) 1952
Calcutta 91 Narwarsingh & Another v. State AIR 1952
Madhya Bharat 193, cited.
Per Dr. Mukundakam Sharma, J (Concurring)
1.1. A bare reading of the provisions of s.9(6) of the
Code of Criminal Procedure, 1973 explicitly indicates that
F
the power conferred on the High Court is the power to
determine the place or places where the Court of Session
shall ordinarily hold its sittings. The second part which G
immediately follows the first part opens with the word
"but", thereby carving out an exception to the general
rule that the venue of the Court of Session shall be the
place notified by the High Court. However, being an
exception, the Code specifically mandates in the second
H
922
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
part for observance of a special procedure contemplating
compliance of the rule of audi alteram partem and also for
obtaining the consent of the parties before the Court of
Session may hold its sittings at a place other than the
place or places notified by the High Court. [Para 14] [1007B A-E]
1.2. In the instant case, the essential conditions
ingrained in the second part of s. 9(6), are not applicable
inasmuch as the power to change the venue of the trial
of cases pending against the appellant, was exercised by
C the High Court and not by the Court of Session. The
power of the High Court uls 9(6) to notify a particular
place or places where the Court of Session shall
ordinarily hold its sitting is an administrative power unlike
the power of the Court of Session under second part of
D s.9(6) which is a purely judicial power in nature. Being so,
the High Court was under no obligation to observe the
rule of audi alteram partem. It has been the consistent
view of this Court that an administrative order when
passed by a competent authority may not necessarily be
E
required to be issued only after due compliance with the
principles of natural justice. [Para 15, 17, 21 and 25] [10088-D; 1009-D-E; 1012-B-C; 1013-D-E]
Kehar Singh vs. State (Delhi Administration) 1988 (2)
Suppl. SCR 24 =1988 SCC (3) 609; Union of India v. Col.
F
J.N. Sinha, (1970) 2 SCC 458; Haradhan Saha v. State of
W.B. 1975 ( 1 ) SCR 778 = (1975) 3 SCC 198 ; Olga Tellis
v. Bombay Municipal Corporation 1985 (2) Suppl. SCR
51 =(1985) 3 SCC 545; Carborundum Universal Ltd. v.
Central Board of Direct Taxes, (1989) Supp. 2 SCC 462; and
G Ajit Kumar Nag v. G. M. (PJ), Indian Oil Corp. Ltd. (2005) 7
sec 764, relied on.
1.3. The second part of s.9(6) of the CrPC expressly
requires the Court· of Session to afford the prosecution
and the accused an opportunity of hearing and to obtain
H their consent beforehand whereas there is no such
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
923
stipulation under first part of s.9(6r. The omission of such A
a requirement in case of the High Court pertaining to first
part of sub-section (6) of s.9 is to be construed as a
conscious decision on the part of the legislature for, it
intended to exclude such a requirement when such power
is to be exercised by the High Court. [Para 22] [1012-DB
F]
1.4. Even otherwise, it is a well-settled principle in law
that the court cannot read anything into a statutory
provision which is plain and unambiguous. The language
employed in a statute is the determinative factor of the C
legislative intent. If the language of the enactment is clear
and unambiguous, it would not be proper for the courts
to add any words thereto and evolve some legislative
intent, not found in the statute. [Para 23] [1012-F-G]
Ansal Properties & Industries Ltd. v. State of Haryana D
2009 (1) SCR 553 = (2009) 3 sec 553, relied on.
1.5. As regards the constitutional validity of s.9(6),
significantly, no such plea was ever raised at any stage
and even such ground was not raised in the memo of
appeal. An important question of constitutional validity of E
a provision in a Central Act cannot be permitted to be
raised for the first time at the stage of final hearing. The
Union of India is also not a party in the proceedings and
in its absence no such issue could be allowed to be
raised, argued and decided. [Para 26] [1013-F-G]
F
2.1. Section 407 of the Code deals with the power of
the High Court to "transfer" cases and appeals. The key
word in this section is the word 'transfer', which
essentially consists of two steps: (a) removing a case or G
class of cases from the jurisdiction of the court where it/
they is/are pending trial, and (b) putting it/them under the
jurisdiction of another court (whether of equal or superior
jurisdiction) for adjudication. Thus, every transfer
involves two different courts. [Para 16] [1008-G-H; 1009H
A]
924
SUPREME COURT REPORTS
(2010] 3 S.C.R.
A
2.2. By issuing ttie notification dated 20.5.2006, the
High Court cannot be said to have transferred the cases
pending against the appellant, for the said notification
simply notified the premises of District Jail, Siwan, to be
the place of sitting for holding the trial of cases pending
B against the appellant. The notification did not, in any
manner, affect or abridge the jurisdiction of the Court of
Session, Siwan, to try those cases. Thus, there was a shift
simpliciter in the venue of the trial, without there being
anything more. In such circumstances,· the instant case
c cannot be said to be a case of "transfer" to which the
provisions of s. 407 are attracted. [Para 16) [1009-A-C)
3.1. Section 11 CrPC makes it explicitly clear that a
Court of Judicial Magistrate could be established by th~j
State Government after consultation with the High Court.
D The State Government is vested with the power, after due
consultation with the High Court, to create or to establish
for any local area one or more courts of Judicial
Magistrate First Class so as to try any particular case or
class of cases. [Para 27) [1014-A-C]
E
F
3.2. By issuing one of the two impugned notifications
dated 7.6.2006 the State of Bihar, in exercise of its powers
conferred u/s 11 of the CrPC and in consultation with the
High Court, established a Court of Judicial Magistrate,
First Class inside the District Jail, Siwan to hold its sitting
for the trial of cases pending against the appellant in the
Court of Judicial Magistrate, First Class. The impugned
notification satisfies all the requirements and all the four
corners as envisaged u/s 11 of the Code and, therefore,
G the said notification is legal and valid inasmuch as, the
same was issued by the competent authority and also in
full compliance with the requirements and the safeguards
provided in the said provisions. [Para 43) [1020-G-H; ·
1021-A-B]
H
3.3. So far the other notification issued by the
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
925
Government of Bihar on 07 .06.2006 directing that the A
Court of Additional District and Sessions Judge of Siwan
Sessions Division would hold its sitting inside the District
Jail, Siwan to try sessions cases pending against the
appellant is concerned, it appears to be a surplusage,
which was issued for making available the jail premises B -
for the purpose of holding the Court of Session. The
power u/s 9(6) is vested in the High Court and in exercise
of the said power the High Court had issued a
notification on 20.05.2006 which was also published in
the official Gazette. Any further notification by the State c
Government making the jail premises available for the
said purposes cannot be said to be illegal and void. [Para
44) [1021-C-F]
3.4. There is thus no infirmity in establishing both the
Special Courts i.e. the Court of Additional District and D
Sessions Judge to try sessions cases and the Court of
Judicial Magistrate, First Class to try the other cases,
pending against the appellant, inside the premises of the
District Jail, Siwan as the notification u/s 9(6) was issued
in accordance with the provisions of law by the High E
Court and subsequent notification was also issued by
the State Government in consultation with the High Court.
[Para 45) [1021-G-H; 1022-A-B]
4.1. The issue whether the notification dated
F
20.5.2006 was published in the official Gazette or not or
whether a copy thereof was supplied to the appellant or
not, is a mixed question of law and fact and, therefore,
the same should have been raised specifically in the writ
petition and at least in the appeal petition. It also does not G
appear from the material available on record that such an
issue was ever raised by the appellant before the High
Court. Therefore, the issue being raised for the first time
at the time of hearing of the appeal before this Court
cannot be permitted to be raised. [Para 32) [1015-B-D]
H
926
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
Shakti Tubes Ltd. v. State of Bihar, 2009 (10) SCR 739
= (2009) 7 sec 673, relied on
4.2. However, from the records, it is conclusively
established that the High Court took all necessary steps
8
to get the notification issued and published in the official
gazette. If the Government Press took some time to get
· the notification published in the official gazette, the High
Court cannot be blamed for it nor could the notification
be ~eclared to be void, particularly, when it was so
published in the official gazette, as it is established from
C the records placed before the Court, although after some
delay. [Para 42] [1020-B-D]
5.1. It cannot be said that reference of the provisions
of s.14 (1) of the Bengal, Assam and Agra Civil Courts
D Act, 1887 apart from referring to the provisions of s.9(6)
CrPC in the notification dated 07.06.2006 issued by the
State Government indicates non-application of mind by
the competent authority and on that ground the
notification was illegal and void. If the notification quotes
E a wrong section and refers to a wrong provision, the ·
same cannot be held to be invalid if the validity of the
same could be upheld on the basis of some other
provision. In the instant case, for making available the jail
premises to hold the Court of Session, provisions of
F
s.9(6) CrPC would be applicable. [Para 46,47 and 49]
[1022-8-E; 1023-E]
N. Mani v. Sangeetha Theatre,. (2004) 12 SCC 278,
relied on.
G
5.2. It is a well-established law that when an authority
passes an order which is within its competence, it cannot
fail merely because it purports to be made under a wrong
provision if it can be shown to be within ;ts power under
any other provision or rule, and the validity of such
H impugned order must be judged on a consideration of its
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
927
substance and not its form. The principle is that the act A
of a public servant must be ascribed to an actual existing
authority under which it would have validity rather than
to one under which it would be void. In such cases, this
Court will always rely upon s.114 Ill. (e) of the Evidence
Act, 1872 to draw a statutory presumption that the official B
acts are regularly performed and if satisfied that the
,,
action in question is traceable to a statutory power, the
courts will uphold such State action. [para 48) [1022-GH; 1023-A-B]
P. Balakotaiah v. Union of India, 1958 SCR 1052 =AIR C
1958 SC 232; Lekhraj Sathramdas Lalvani v. N.M. Shah,
Deputy Custodian-cum-Managing Officer, (1966) 1 SCR 120;
Peerless General Finance and Investment Co. Ltd. v. Reserve
Bank of India, 1992 (1) SCR 406 = (1992) 2 SCC 343; B.S.E.
Brokers' Forum, Bombay v. Securities And Exchange Board D
of India, (2001) 3 SCC 482, relied on.
6. As regards the plea that the power and jurisdiction
u/s 9(6), CrPC could not be exercised by the High Court
in respect of the trials relating to one particular individual E
pending in one Sessions Division, it is well settled law
that a classification may be reasonable even though a
single individual is treated as a class by himself, if there
are some special circumstances or reasons applicable to
him alone and not applicable to others. There were about F
40 cases pending against the appellant and they were
being tried in different courts. Difficulties were being
created for conducting the said cases at various courts
both for the prosecution as also to the appellant.
Therefore, disposal of all the cases pending against the
appellant most" expeditiously at one place without being G
in any manner disturbed by the factors mentioned in the
letter of the Superintendent of Police, could be said to be
a reasonable ground. Expeditious disposal of cases is
also a factor and a necessary concomitant to
administration of justice and the hallmark of fair H
928
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
administration of justice. Since the venue of the trial of a
group or a class of cases was shifted by establishing and
constituting a Court within the District Jail, Siwan, the
same cannot be said to be void or invalid in any manner.
[Para 50-51 and 57] [1023-F-H; 1024-A-C-D; 1028-E-F]
B
7 .1. So far as the plea that a trial must be conducted
in an open court and the constitution of a special Court
of Session in the jail pi:.emises of District Jail, Siwan
amounts to violation of Articles 14 and 21 of the
Constitution of India as also of the provision contained
C
in s.327 CrPC is concerned, although the general rule is
that a trial must be conducted in an open court, it may
sometimes become necessary or rather indispensable to
hold a trial inside a jail. Considerations of public peace
and tranquility, maintenance of law and order situation,
D safety and security of the accused and the witnesses
may make the holding of a trial inside the jail premises
imperative as is the situation in the instant case. A trial
does not stand vitiated solely because it is conducted
inside the jail premises. What is significant is that there
E
must be compliance of the provisions contained in s.327
CrPC which guarantees certain safeguards to ensure that
a trial is an open trial. [Para 53-55] [1025-8-C; 1026-8-CF-H]
F
Kehar Singh vs. State (Delhi Administration) 1988 SCC
(3) 609, relied on.
R. v. Denbigh Justices, (1974) 2 All ER 1052, 1056
(Q8D), relied on.
·
Black's Law Dictionary (6th Edition, 1990, p. 1091),,
G referred to.-
7.2. In the instant case, a general notice inviting the
public to witness the trial of the appellant was affixed on
the jail gate; the appellant was represented by 38
H advocates who regularly attended the court in jail
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
929
premises; the day-to-day proceedings of the court were
A
reported in the newspapers daily; and entry was allowed
to all persons after recording their personal details into
a register maintained by the jail authorities. It has also not
been shown that any permission sought for by any
intending person to witness the proceedings was
B
refused by the authority. In this view of the matter, there
was sufficient compliance with !;.327 CrPC. (Para 56)
[1027-G-H; 1028-A-8]
West Bengal v. Anwar Ali Sarkar, 1952 SCR 284 =AIR
C
1952 SC 75 held in applicable.
7.3. It must be noted that in the instant case, no
special procedure was prescribed and the cases were to
be conducted and disposed of in accordance with the
ordinary criminal procedure as prescribed under the
D
Code of Criminal Procedure. Thus, no prejudice was
caused to the appellant while shifting the cases to the
Special Courts situated inside the premises of District
Jail, Siwan. Therefore, there is no violation either of s.327
CrPC or of Articles 14 and 21 of the Constitution. The. E
legality and the validity of all the three notifications is
upheld. Consequently, the trial can proceed as against
the appellant in all the pending cases and it would
continue to be held in terms of the notifications in
accordance with law. The order passed by the High Court
F
is upheld. [Para 57, 60 and 61) (1028-G-H; 1029-A-E-G]
Case Law Reference:
Judgment by Dalveer Bhandari, J
1952 SCR 284
not applicable para 11
G
AIR 1936 Privy Council 246
referred to
(1913) A C 417
referred to
65L Ed 2d 973
referred to
para 14
para 14
para 15
H
930
SUPREME COURT REPORTS
(2010] 3 S.C.R.
A
B
c
1988 (2) Suppl. SCR 24
(1966) 3 SCR 744
1985 (2) Suppl. SCR 131
197 4 (2) SCR 348
1978 (2) SCR 621
1990 (1) Suppl. SCR 142
1993 (3) SCR 930
1994 (2) SCR 149
1987 (2) SCR 295
(1982) 1 sec 211
relied on
relied on
cited
cited
cited
cited
cited
cited
cited
referred to
D
AIR 1917 Lah. 311
referred to
AIR (34) 1947 Allahabad 436
referred to
AIR (37) 1950 Madras 441
referred to
E
AIR (37) 1950 Madras 696
referred to
F
G
H
AIR (39) 1952 Calcutta 91
referred to
AIR 1952 Madhya Bharat 193 referred to
(1996) 3 sec 364
relied on
(1971) A.C. 297
(1970) 2 Q.B. 417
(1967) 2 AC 337
384 U.S. 333 (1966)
478 U.S. 1 (1986)
178 Or App 233, 36
P3d 500 (2001)
referred to
referred to
referred to
referred to
referred to
referred to
para 27
para 27
para 28
para 28
para 28
para 31
para 32
para 33
para 54
para 72
para 73
para 74
para 75
para 76
para 77
para 77
Para 105
para 107
para 108
para 111
para 114
para 114
para 115
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
931
6 Va. App. 132 (1988)
referred to
para 115
A
3 Va. App. 285 (1986)
referred to
para 116
83 Cal. App. 4th 772 (2000)
referred to
para 118
(1971) 1 W.L.R. 1578
referred to
para 120
B
(1984) 1 sec 43
referred to
para 122
(1979) 77 L.G.R. 689 (1979)
referred to
para 123
AIR 1917 Lah. 311
referred to
para 118 c
(2000) 1 sec 129
referred to
para 124
(1969) 3 sec 392
referred to
para 125
(2005) 1 sec 764
relied on
para 134
(1982) 457 us 596 :
referred to
para 135
D
73 L.Ed. 2d 248
(1993) 4 sec 121
relied on
para 140
Judgment by Dr. Mukundakam Sharma, J.
E
1988 (2) Suppl.. SCR 24
relied on
para 12
(1970) 2 sec 458
relied on
para 19
1975 (1) SCR 778
relied on
para 20
1985 (2) Suppl. SCR 51
relied on
para 21
F
(1989) Supp. 2 sec 462
relied on
para 21
(2005) 1 sec 764
relied on
para 21
2009 (1) SCR 553
relied on
para 23
G
2009 (10) SCR 739
relied on
para 32
(2004) 12 sec 218
relied on
para 47
1958 SCR 1052
relied on
para 48
H
932
SUPREME COURT REPORTS
[2010] 3 S.C.R.
A
(1966) 1 SCR 120
relied on
para 48
1992 (1) SCR 406
relied on
para 48
(2001) 3 sec 482
relied on
para 48
B
(1974) 2 All ER
relied on
para 54
10521056 (QBD)
1952 SCR 284
held in applicable para 57
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
c No. 591 of 2010.
D
From the Judgment & Order dated 14.8.2007 of the High
Court of Judicature at Patna in Criminal Writ Jurisdiction Case
No. 553 of 2006.
Ram Jethmalani, Pranay Ranjan, Lata Krishnamurthy, P.R.
Mala, Sourab Ajay Gupta, Praneet Ranjan for the Appellant.
Ranjeet Kumar, P.H. Parekh, Gopal Singh, Manish Kumar,
Ajay Kumar Jha, Divya Sinha, Vishal Prasad (for Parekh & Co.)
E for the Respondents.
F
The Judgment of the Court was delivered by
DALVEER BHANDARI, J. 1. Leave granted.
2. This appeal is directed against the judgment of the High
Court of Judicature at Patna passed in Criminal Writ
Jurisdiction Case No.553 of 2006 dated 14.08.2007.
3. The appellant is aggrieved by the notification No.184A
G 1dated 20th May, 2006 whereby the Patna High Court in exercise
·of administrative powers conferred under sub-section (6) of
section 9 of the Code of Criminal Procedure, 1973 (hereinafter
referred to as "the Code") has been pleased to decide that the
premises of the District Jail, Siwan will be the place of sitting
H of the Court of Session for the Sessions Division of Siwan for
MD. SHAHABUDDIN v. STATE OF BIHAR & ORS.
933
[DALVEER BHANDARI, J.]
the expeditious trial of Sessions cases pending against Md.
A
Shahabuddin.
4. The appellant is also aggrieved by the two notifications
bearing No.A/Act-01/2006 Part-1452/J corresponding to S.O.
No. 80 dated 7.6.2006 and No.A/Act-01/2006 Part-1453/J
corresponding to S.O. No.82 dt. 7.6.2006 issued by the State
of Bihar at the behest of the High Court of Patna. The State of
Bihar has established a Court of Judicial Magistrate 1st Class
inside the District Jail, Siwan and directed that:
B
(a) the Court of Judicial Magistrate 1st Class, Siwan shall
C
now hold its sitting inside the District Jail Siwan for trial of
cases pending against the appellant Md. Shahabuddin in
the Court of Judicial Magistrate 1st Class; and
(b) This notification shall come into force with effect from
D
the 7th June, 2006.
5. The appellant is further aggrieved by another notification
issued on the same day by which the court of the Additional
District & Sessions Judge of Siwan Sessions Division was
directed to now hold its sitting inside the District Jail, Siwan to
E
try Sessions cases pending against the appellant Md.
Shahabuddin.
6. Mr.