# RANBIR Y ADA V v. STATE OF BIHAR '-'

- **Citation:** [1995] 2 S.C.R. 826
- **Court:** Supreme Court of India
- **Decided:** 1995-03-21
- **Case number:** Criminal Appeal C Nos. 34, 35 & 36 of 1992
- **Bench:** As. Anand, M.K. Mukherjee
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/ranbir-y-ada-v-v-state-of-bihar-12960
- **Pages:** 38

## Headnote

Constitution of India-Article 227-l'ower of superintendence of High
Court-Scope-Trial of a large number of persons-Transfer of case to bigger
,,..-
Court with better an-angement-Whether High Court justified in. exercising its
"\
c plenary administrative powe~eld, yes.
Article 136-'-SCope of interference with concurrent findings of facts.
rCriminal Procedure Code, 1973-Secs. 326, 350, 216, 217-Transfer of
case-Right of accused to claim a de novo trial-Transferee Court can
D exercise its judicial discretion only for further examination of a witness already .
examined and not for fresh examination of witnesses for a fresh trial.
Secs. 154, 161, 162-FIR-Two incidents of rioting and murder-lnves-
-·
ligation over the incidents started in the same night-Report lodged on the
E following morning could only be treated as a statement recorded in accordance with Sec. 161(3) of the Code and not as FIR-Admissibility of evidence
of the witness.
Indian Penal Code, 1860-Sections 148, 302/149, 436/149, 380 and
201/149-0ffences of loo~ arson and murder-Eye witnesses-A mob of
F 500/600 people, residents of different villages came to and attacked the
neighbouring village to exterminate the Bind Community-Three appellants
belonging to Yadav community came on horse back armed with fire arms and
led the mob, chased villagers and committed murders-Their conviction for
offences upheld.
G
According to the prosecution due to some land dispute between some
vill~ges, about 30/40 members or the Yadav community, all resident of a
neighbouring village came to the village and started abusing the Binds,
' -
firing from guns injuring some and went back holding out threat that all
the members of the Bind community would be killed; that on the same day
H at about 1 P.M. a mob or about 600 Yadavs armed with weapons like guns,
826
RANBIR YADAVv. STATE
827
pistol, bhalas and lathis came • some of them on horse back • and attacked A
>
Mind Tolis of the village; that the mob res~rted to looting cash, cloth, grain,
ornament and cattle and then setting to fire the houses of the inhabitants
there, some of the members of the mob chased the villagers who were trying
to Dee away towards the River and when these persons tried to escape on
boats the miscreants fired at them, brought them down from the boats and B
then dragged them to the river and threw them there; that the three
appellants had come no horse back with guns, led the mob and were active
participants in the ravage; that on getting information a police posse went
T
there the same night and PW96, an Inspector of Police, took up investigaI
tion of the cases registered over the first incident and on the following
morning he also took up investigation of the second incident. The dead c
--
bodies of six out of the nine killed were recovered. Over the first incident,
a charge sheet was submitted against six accused persons u/ss. 147, 148
and 149/307 IPC and Section 27 of the Arms Act. In respect of the second
incident also two cases were registered, one in the same night u/ss.148,
149/302, 201, 436 and 320 IPC and the other on the following morning u/ss. D
302/149, 307, 380, 436, 147, 148, 149, 201 and 1208 IPC and Section 27 of
the Arms Act. These two cases ended in a charge sheet against 152 accused
persons, including the three appellants and some absconders.
The cases committed to the Court of Sessions were transferred to
the 10th Court for trial and after amalgamation of two cases charges were E
framed against the six accused. Both the cases were then transferred to
the 5th Court of Addi. Sessions Judge of trial as a petition was filed by
some of the accused persons stating that when the Sessions Trial was taken
up by the 10th Court for hearing on the question of framing of charges all
the accused could not be accommodated in the dock meant for them as a F
result of which some of them had to remain outside and that one of the
accused lying seriously ill, brought on a cot had to be kept on the verandah
of the court

## Text

_Characters 0–39,860 of 97,843. This is a partial read: ask again with offset=39860 for what follows._

A
RANBIR Y ADA V
v.
STATE OF BIHAR
'-'
MARCH 21, 1995
B
[AS. ANAND AND M.K. MUKHERJEE, JJ.]
Constitution of India-Article 227-l'ower of superintendence of High
Court-Scope-Trial of a large number of persons-Transfer of case to bigger
,,..-
Court with better an-angement-Whether High Court justified in. exercising its
"\
c plenary administrative powe~eld, yes.
Article 136-'-SCope of interference with concurrent findings of facts.
rCriminal Procedure Code, 1973-Secs. 326, 350, 216, 217-Transfer of
case-Right of accused to claim a de novo trial-Transferee Court can
D exercise its judicial discretion only for further examination of a witness already .
examined and not for fresh examination of witnesses for a fresh trial.
Secs. 154, 161, 162-FIR-Two incidents of rioting and murder-lnves-
-·
ligation over the incidents started in the same night-Report lodged on the
E following morning could only be treated as a statement recorded in accordance with Sec. 161(3) of the Code and not as FIR-Admissibility of evidence
of the witness.
Indian Penal Code, 1860-Sections 148, 302/149, 436/149, 380 and
201/149-0ffences of loo~ arson and murder-Eye witnesses-A mob of
F 500/600 people, residents of different villages came to and attacked the
neighbouring village to exterminate the Bind Community-Three appellants
belonging to Yadav community came on horse back armed with fire arms and
led the mob, chased villagers and committed murders-Their conviction for
offences upheld.
G
According to the prosecution due to some land dispute between some
vill~ges, about 30/40 members or the Yadav community, all resident of a
neighbouring village came to the village and started abusing the Binds,
' -
firing from guns injuring some and went back holding out threat that all
the members of the Bind community would be killed; that on the same day
H at about 1 P.M. a mob or about 600 Yadavs armed with weapons like guns,
826
RANBIR YADAVv. STATE
827
pistol, bhalas and lathis came • some of them on horse back • and attacked A
>
Mind Tolis of the village; that the mob res~rted to looting cash, cloth, grain,
ornament and cattle and then setting to fire the houses of the inhabitants
there, some of the members of the mob chased the villagers who were trying
to Dee away towards the River and when these persons tried to escape on
boats the miscreants fired at them, brought them down from the boats and B
then dragged them to the river and threw them there; that the three
appellants had come no horse back with guns, led the mob and were active
participants in the ravage; that on getting information a police posse went
T
there the same night and PW96, an Inspector of Police, took up investigaI
tion of the cases registered over the first incident and on the following
morning he also took up investigation of the second incident. The dead c
--
bodies of six out of the nine killed were recovered. Over the first incident,
a charge sheet was submitted against six accused persons u/ss. 147, 148
and 149/307 IPC and Section 27 of the Arms Act. In respect of the second
incident also two cases were registered, one in the same night u/ss.148,
149/302, 201, 436 and 320 IPC and the other on the following morning u/ss. D
302/149, 307, 380, 436, 147, 148, 149, 201 and 1208 IPC and Section 27 of
the Arms Act. These two cases ended in a charge sheet against 152 accused
persons, including the three appellants and some absconders.
The cases committed to the Court of Sessions were transferred to
the 10th Court for trial and after amalgamation of two cases charges were E
framed against the six accused. Both the cases were then transferred to
the 5th Court of Addi. Sessions Judge of trial as a petition was filed by
some of the accused persons stating that when the Sessions Trial was taken
up by the 10th Court for hearing on the question of framing of charges all
the accused could not be accommodated in the dock meant for them as a F
result of which some of them had to remain outside and that one of the
accused lying seriously ill, brought on a cot had to be kept on the verandah
of the court room and that the court was so crowded that clerks of the
lawyers were not allowed to enter and in fact the lawyers themselves had
to carry the records. While disposing of this petition the 5th Court G
recorded an order that to avoid all sorts of infirmities and irregularities
)
the charges against all the accused including two of the absonding accused
who had surrendered in the meantime would be framed afresh. Pursuant
to this order now charges u/ss. 364/149 and 201/149 IPC were added and
three absconding accused persons who had surrendered since the charges
were framed by the previous Court, were also arrayed in the charges. All H
828
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A the four witnesses who had earlier been examined, cross examined and
then discharged by the 10th Court for further cross examination, were
directed to be examined afresh considering that they were not examined in
the presence of all the 140 accused as three of them had surrendered after
their evidence was recorded. A revisional application filed against this
order was disposed of by the High Court with a direction that in case the
B defence applied to cross examine those four witnesses, the Court may order
for their cross examination and in case the Court feels that any further
evidence is essential for a just decision of the case, it may call them to the
court. On conclusion of the trial the Court acquitted 78 of them and
convicted and sentenced the other 60 in . respect of all or some of the
C charges. Each of the three appellants was convicted u/Ss 120-B, 148,
302/149, 436/149, 380 and 201-149 IPC. On appeal, the High Court affirmed
convictions of three appellants except for the offences u/ss 1208 IPC.
Hence these appeals.
D
The appellants contended that the trial which took place in the 5th
Court was wholly without jurisdiction as the High Court had no power to
transfer the case from the 10th Court to the 5th Court and that too by an
· administrative order at a stage when the trial had already commenced;
that administrative power could not be exercised at a stage when judicial
power was not only available and operational but was equally effective and
E efficacious; that having regard to the facts that the 5th Court had by its
order decided to frame charges afresh against the accused persons, including those three who were later put on trial after their surrender and that
pursuant thereto it framed charges and proceeded with the trial, the
earlier trial conducted by the 10th Court must be held to have come to an
F end, and the evidence of the four witnesses who were examined therein
could not be relied upon by the Sth Court for recording the impugned
order of conviction and sentence; that once the trial Court had exercised
its judicial discretion to hold a fresh trial, the High Court's interference
with the same was not only impermissible in view of the embargo of Section
397 (2) of the Code but was also unsustainable on merits; that the evidence
G on record did not justify their convictions and that both the Courts below
ought not to have taken into consideration and relied upon the evidence
of P.C.P.W.I. as the same was inadmissible considering that the witness
was permitted to refresh his memory from the report he lodged with the
police in the morning which was treated as the F.I.R. of the second incident
H even though it could not be so treated as PW 96 had started investigation
RANBIR YADAVv. STATE
829
into the same the previous night and that the prosecution case so far as A
it related to the attack on the villagers when they were trying to flee away
,
on a boat was absolutely untrue for, even though the prosecution witnesses
claimed that after capturing the boat and bringing the occupants down,
the .rioters fired at them their dead bodies were recovered from the River
though those would have been found in Tisrasia Dhab itself and that the B
evidence of the eye witnesses who testified about the second incident was
highly di~crepant and untrustworthy and, therefore, it should . not have
been relied upon.
~
·~·
Dismissing the appeals, this Court
c
-r
HELD: 1.1 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 its trite that
this power of superintendence entitles the High Court to pass orders for
administrative exigency and expediency. In the instant case the High Court D
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 accom·
modated in the Court room as a result of which some of them had to
remain outside. The other grievance raised was that the Court was so
crowded that even clerks of the lawyers were not being allowed to enter the E
Court room 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 had a bigger and better arrangement to
accommodate the accused, lawyers and others connected with the trial no
exception could be taken to the same, particularly by those at whose F
instance and for whose benefit the power was exercised. So long as power
can be and is exercised purely for administrative exigency without imping·
ing upon and prejudicially affecting the rights or interests of the parties
to any judicial proceeding there is no reason to hold thiit administrative
powers must yield place to judicial powers simply be<:ause in a given G
circumstance they co-exist. On the contrary, the present case illustrates
)!
how exerc~e 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 Cr.P.C. it would have necessitated com·
pliance with all the procedural formalities thereof, besides proViding ade·
quate opportunities to the parties of a proper hearing which, resultantly, H
830
SUPREME COURT REPORTS
[1995] 2 S.C.R.
A 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 other connected with the trial but did it with
utmost dispatch. [838-G-H, 839-A-B-D-F]
B
1.2 The primary reasons, which weighed with the Sth Court for
framing charges afresh and directing the prosecution to furnish the list of
witnesses to be examined on its behalf were, that three accused had
surrendere~ ~ner charges had been framed and four witnesses for the
prosecution had been examined-in-chief and three of them discharged after
·c cross examination and that the accused persons had been prejudiced in
their defence as, instead of a lawyer of their choice a lawyer from the
defence panel had appeared on their behalf on the first day of the trial.
Therefore as against the present appellants and the other accused who
were being tried with them the question of framing charges afresh by the
D Sth Court did not and could not arise and, in fact, only additional charges
were framed against them. The direction of the 5th Court regarding
framing of charges afresh has therefore to be read and construed with
reference to those three who surrendered later. So far as those three
accused ai'e concerned, admittedly they were not there when the trial
commenced in the 10th Court and, therefore, the Sth Court was not only
E legally bound to frame charges against them, but also to record the
evidence of the four witnesses already examined afresh if the prosecution
intended to use the same against them for, save in exceptional cases as
provided in Section 299 and other sections of the Code, all evidence has to
be taken in the presence of the accused, or when personal presence is
F dispensed with, in the presence of his lawyer in view of Section 273 of the
Code. Those three accused therefore might have legitimately and successfully assailed the reception and, for that matter, reliance upon the evidence
of those four witnesses against them. However, the three appellants could
not be allowed to raise any similar grievance for those witnesses were
examined in their presence and cross-examined at length by the lawyers of
G their choice extensively and exhaustively and therefore no prejudice could
be said to have been caused to them. After an alteration or addition of the
(-
charge the interest of the prosecution and the accused had to be
~ -
safeguarded by permitting them to further examine or cross examine the
witness already examined, as the case may be, and by affording them an
H opportunity to call other witnesses. Discretion has been given to the Court
r
_,,.,,,-
)
,.,, RANBIR YADAVv. STATE
831
to direct a new trial after addition or alteration of any charge, but it dat:s A
not mean that every sqch addition or alteration in the charge which has
been read over and eiplained to the accused would lead to inevitable
inference that the Court had directed a new trial for them. Unless the
Court passes a specific order and directs a new trial it cannot be presumed
that a new trial has co~menced only because an alteration or addition to B
a charge which has been read over and explained to the accused has been
made. The order dated; April 30, 1987 shows that while directing the
prosecution to examine t}te 4 witnesses afresh the 5th Court adjourned th~
case for further trial anrJ did not direct fresh trial. This apart, any such
direction given by the court has to be judged on the touchstone of prejudice
to the accused or the pro~ecution. (845-E-H, 846-A-C, 847-D-F]
c
2. Sitting in the ju~diction under Article 136 of the Constitution o(
India this Court will not be justified in re- opening the. whole case and
disturbing concurrent findings of fact recorded on a pure appreciation of
evidence unless it was held that those findings have been recorded in utter D
disregard of mandatory ):)rovisions of law resulting in serious prejudice
and substantial injustice to the accused. The other area justifying inter·
ference would be where on the proved facts wrong inference of law has been.
drawn or the conclusions on facts are manifestly perverse and based on
no evidence. A concurrent finding has been recorded by the Courts below
to the effect that the six Yadavs had come to the village armed with various E
weapons including firearms, committed rioting, attempted to commit mur·
der of two by firing and causing injuries to them and then went away
holding out open threat to the villagers that the member of the Bind
community would be eliminated. (851-G-H, 852-G-H]
F
3. The Courts below were not justified in treating Ext. 10/1 as an
F.I.R. Undisputediy P.W. 96 had reached the village in the night of
11.11.1985 to investigate into the two cases registered over the incident that
took place in the morning. He deposed that after reaching the village at
10.30 p.m. he got information abut the second incident also and in connection therewith he had talked to several persons. He, however, stated that G
he did not record the statements of the persons to whom he talked to. In
cross examination it was elicited from him that on the very night he learnt
that houses of some people had been looted and set on fire, some people
had been murdered and that some villagers were untraceable. While being
further cross examined he volunteered that he had started the investiga· H
832
SUPREME COURT REPORTS
(1995) 2 S.C.R.
A tion of the case registered over the second incident in the same night. In
the face of such admissions of P.W.96 and the various steps of investigation he took in connection with the second incident there cannot be any
escape from the conclusion that the report lodged by P.C.P.W.1 on the
following morning could only be treated as a statement recorded in accordB ance with Section 161(3) of the Code and not as an F.I.R. After P.C.P.W.1
testified about the incident prosecution got the statement of P.C.P.W. 1
emibited as Ext. 10/1 as according to it Ext. 10/1 was the F.I.R. Such a
course was legally permissible to the prosecution to corroborate the witness in view of Section 157 of the Evidence Act. In a given case - as in the
present one - the court may on the basis of subsequent materials hold that
C
th~ statement so recorded could not be treated as the F.I.R. and exclude
the same from its· consideration as a piec~ of corroborative evidence In
view of Section 162 of the Code but then on that score alone the evidence
of a witness cannot be held to be inadmissible. (855-A-D, 856-G-H]
4. The find of dead bodies in the River, does not contradict the case
D of the prosecution that those two persons were shot at Tisrasia Dhab as
there was evidence on reco~d that all the 10 persons including those who
were shot at were taken to the bank of the river, there being signs of
dragging between the two places. (857-EJ
E
5. The evidence of the host of eye-witness - which both the Courts
below considered and accepted - conclusively proved that all the three
appellants shared the common object of the unlawful assembly to commit
the offences of loot, arson and murder and causing the disappearance of
the evidence of murder and that in furtherance of those common objects
F some members of that unlawful assembly committed those offences for
which the appellants were also liable to the convicted under Section 149
IPC. Having shifted their evidence and considered the same in the backdrop of the events preceding the incident that took place in the afternoon
of 11.11.1985 the following conclusions were inevitable: (i) a mob of 500/600
people, most of whom belonged to Yadav community and were residents
G of different villages came to and attacked the neighbouring village to
exterminate the Bind community: (ii) the three appellants who belonged
to Yadav community and were residents of three separate adjoining villages came on horse back armed with fire arms, and led the mob along
with some others: and (iii) the appellants were also amongst the rioters
H who chased the villages and committed the murders at Tisrasia Dhab and
r
(
RANBIR Y ADAV v. STATE [M.K. MUKHERJEE, J.)
833
the bank of the River. Therefore, the impugned convictions of the appelA
lants must be upheld. (862-D-H]
A.R. A11t1tlay v. R.S. Nayak a11d A11other, (1988) 2 SCC 602;Kehar
Si11gh v. State, (1988) 3 SCC 609; Payare Lal v. State of Punjab, (1962) 3
SCR 328 and Zahirnddin v. Emperor, AIR (1947) P.C. 75, distinguished.
Pulukuri Kotayya v. King Emperor, AIR (1947) PC 67 and Shivaji v.
State of Maharashtra, AIR (1973) S.C. 2622, relied on.
B
Bajwa and Ors. v. State of U.P., (1973) 3 S.C.R. 571, referred.
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal C
Nos. 34, 35 & 36 of 1992.
From the Judgment aild Order dt. 23.5.91 of the High Court of
Judicature at Patna in Criminal Appeal Nos. 183, 166 & 165 of 1989
respectively.
Ram Jethmalani, Ms. Lata Krishnamurti and~h Kumar Yadav
for the Appellants.
M.L. Agrawal, S.K. Patri and B.B. Singh for the Respondents.
The Judgment of the Court was delivered by
M.K. MUKHERJEE, J.
These three appeals stem from two related incidents that took place
D
E
on November 11, 1985 in village Laxmipur Taufir Bind Toli and 'its neighbourhood within the jurisdiction of Munger Muffasil Police Station in the F
State of Bihar. Before detailing the incidents and discussing the evidence
on record relating thereto it will be necessary to narrate the sequence of
events leading to the trial to appreciate the contentions raised on behalf of
the appellants regarding validity of the trial as well the admission of
evidence of some of the prosecution witnesses therein.
G
Over the first incident that took place at or about 6 A.M. two cases
were registered being Munger Muffasil P.S. Case Nos. 302 and 303of1985
and after they were jointly investigated, a charge-sheet was submitted
against six accused persons under sections 147, 148 and 149/307 IPC and
section 27 of the Arms Act. In respect of the second incident, which started H
834
SUPREME COURT REPORTS
(1995) 2 S.C.R.
A at mid day and continued till the evening, also two cases were registered:
one in the same night on the statement of one Janki Bind being case No.
304of1985 under sections 148, 149/302, 201, 436 and 320 IPC and the other
on the following morning on the statement of one Mahender Singh being
case No. 305 of 1985 under sections 302/149, 307, 380, 436, 147, 148, 149,
201 and 120B IPC and section 27 of the Arms Act. These two cases also
B after joint investigation ended in a charge-sheet against 152 accused persons, including the three appellants herein and some absconders.
The case relating to the second incident was committed to the Court
of Session on January 28, 1986 and on receipt of the order of commitment
. C the learned Sessions Judge transferred it to the 10th Court of the Addi.
Sessions Judge (10th Court for short) for trial (Sessions Trial No. 10 of
1986). Thereafter on February 25, 1986 and 10th Court framed various
charged ·against the accused persons including charges under sections
302/149, 436/149, 120-B and 380/149 IPC and as they pleaded not guilty,
D proceeded to record evidence of the prosecution witnesses on and form
March 4, 1986. In the meantime the case relating to the first incident had
also been committed to the Court of session and transferred to the same
Court on March 3, 1986 for trial (Sessions Trial No. 83 of 1986).
On March 5, 1986, one of the absconding accused surrendered
E before the 10th Court and prayed for being tried along with the other
accused. The prayer was allowed and charges were framed against him in
both the cases. Thereafter, an application was moved on behalf of some of
the accused persons for amalgamation of the two trials which was allowed
by the 10th Court by its order dated March 7, 1986. After such amalgamaF tion the Court framed charges' ooder sections 148, 307/149 and 307 IPC
against the six accused of Sessions Trial No. 83 of 1986 and commenced
the trial. It also continued with the trial of 140 accused persons of Sessions
Trial No. 10 of 1986, including the three appellants, and the six accused
who were arraigned in the order trial also. While the trials were being
proceeded with in the 10th Court the High Court passed an order on or
G about April 1986 transferring both the cases to the 5th Court of the Addi.
Sessions Judge, Munger (5th Court for short) for trial.
It appear that after the records of the two Sessions Trials were sent
to the 5th Court pursuant to the order of the High Court, its attention was
H drawn on April 16, 1986 to a petition sent by some of the accused persons
'
..(
,.
~
~-
-·-r
)
RANBIR Y ADAV v. STATE [M.K. MUKHERJEE, J.)
835
I
form jail. In that petition it was stated that on February 25, 1986 when the
Sessions Trial No. 10 of 1986 was taken up for nearing on the question of
framing of charges all the accused could not be accommodated in the dock
meant for them as a result of which some of them had to remain outside,
It was further stated therein that one of the accused, namely, Bansraj
Y adav who was lying seriously ill and was brought on a cot had to be kept
on the verandah of the court-room and that the court was so crowded that
clerks of the leaned lawyers were not allowed to enter and in fact the
lawyers themselves had to carry the records. In the petition it was also
alleged that the trial Court (the 10th Court was then in seisin of the trials)
did not pay any heed to their grievances.
While disposing of the above petition the 5th Court recorded an
order to the effect that to avoid all sorts of infirmities and irregularities
and for redressal of the grievance of the accused in general the charges
against all the accused including Lakhan Yadav and Nageshwar Yadav
(two of the absconding accused who had surrendered in the meantime)
would be framed afresh. The order further reads as follows:-
" .... .I must point it out that the learned Special P .P. has submitted that the charges were explained to the accused persons. It
is worth noting that if the said petition is allowed to remain
undisposed of, in future there may arise compli~tions, particularly
at the end of trial and this way without prejudice to the accused
persons it is just proper, regular and expedient to explain the
charges afresh to all the accused persons under the peculiar
circumstances; keeping in view that there was protest with regard
to the appointment of a lawyer from the defence panel by the
accused on the very first day of taking of the trial and keeping in
view that the accused persons did not repose confidence in the
defence lawyer appointed by the previous court and further keeping in view that they re-iterated that they had been prejudiced due
to the absence of their lawyers whom they had appointed. The
misgivings on the part of the accused may not be sound but the
court will have to adopt a procedure warranted by law so that
neither side feel any sort of prejudice against the court. The
confidence of both side in the working of a court is the paramount
element for the fair trial of any case.
A
B
c
D
E
F
G
H
836
/
A
B
SUPREME COURT REPORTS
(1995] 2 S.C.R.
This court has tried to remove all sorts of infirmities and
irregularities, if any, with regard to the procedure adopted for the
trial of this important case. This order will not prejudice either
side. To 27.4.86 for framing charges afresh against the accused
persons including those who have been prepared to be put on trial.
The learned Spl. P.P. is directed to furnish the list of the witnesses
who may be examined on 30.4.86 and on allottee working days in
May'86, send a production warrant for production of accused
Nageshwar Yadav and Lakhan Yadav on 26.4.86 in the Court.
It appears that pursuant to the above order charges were framed
C afresh in as much as (i) new charges under section 364 read with 149 and
201 read with 149 IPC were added; (ii) the three absconding accused
persons who had surrendered since the charges were framed by the previous Court, were also arrayed in the charges and (iii) all the charges were
explained to the accused afresh.
D
Thereafter, while the trial Court was exam1mng the witnesses
produced by the prosecution an application was filed on its behalf on April
24, 1987 stating that P.W.1 Mahendra Singh, P.W. 3 Nagendra Singh, P.W.
4 Ram Chandra Singh were discharged after their examination and crossexamination by and on behalf of 137 accused and the cross-examination of
E P.W. 2 Sukhdeo Singh was deferred at the instance of one of the learned
advocate appearing on behalf of some of the accused. It was further stated
therein that as the charges were recast in the transferee Court the prosecution was willing to produce those witnesses who had earlier been examined,
cross-examined and then discharged by the 10th Court for further cross
F examination. In their rejoinder to the application the accused persons
stated that the said four witnesses who were examined in the previous
Court should be again examined-in-chief in presence of all the accused and
then only the defence would cross-examine them. While disposing of the
application the 5th Court observed that all the above four witnesses were
not examined in presence of all the 140 accused - as three of them had
G surrendered after their evidence was recorded - they might be prejudiced.
The 5th Court therefore, by its order dated April 30, 1987, directed the
prosecution to examine all those four witnesses afresh.
Aggrieved by the above order the State filed a revisional application
H \whic~ was disposed of by the High Court with the following order:-
RANBIR Y ADAV v. STATE [M.K. MUKHERJEE, J.)
837
"Without going into the merits, as to whether re-examination of A
the four witnesses named in the impugned order is in any way
essential for just decisions of the case or not, since the stand taken
before this Court on behalf of the prosecution is that it does not
propose to re-examine them in the trial, it is enough to dispose of
this application with a direction that in case the defence applied B
to cross-examine them, the Court may order for their cross-examination and in case the court feels that any further evidence is
essential for a just decision of the case, it may call them to the
Court
The question whether the evidence recorded by the predecesC
sor incharge of the court of the 5th Addi. Sessions Judge, Munger,
of the four witnesses named in the impugned order can be looked
into and relied upon by either party or not shall remain op~n for
consideration of the hearing of the trial. The leaned Sessions Judge
shall proceed with the trial without waiting for the prosecution to D
produce them for examination-in-chief.W
In course of the trial that followed in accordance with the above
directions of the High Court two of the accused died and, as such, the trial
continued with 138 accused. On conclusion of the trial the Court, aequitted
78 of them and convicted and sentenced the other 60 in respect of all or E
some of the charges levelled against them. Five of the convicts were
sentenced to death. Each of the three appellants before us was convicted
under Sectio~ 120-B, 148, 302/149, 436/145, 380 and 201/149 IPC and
sentenced to various terms of imprisonment including for life. Agains~ their
convictions and sentences all the convicts filed separate sets of appeal and F
the State of Bihar, in its turn, filed an appeal against the acquittal of others.
Along with the appeals preferred by the convicts and the Stat~ the High
Court heard the reference made by the trial Court under Section 366 of
the Code of Criminal Procedure, 1973 ('Code' for short) and disposed of
all of them through a common judgment by rejecting the reference, dismissing the Government appeal, allowing the appeal of one of the convicts G
and dismissing the appeal of all other convicts with modification in convictions and sentences of some of them. As regards the three appellants
before us, namely, Ranbir Yadav, Sukhdeo Yadav and Pandav Yadav, the
High Court affirmed their convictions and sentences except for the offences under Section 120-B IPC. They alone have moved this Court through . H
838
SUPREME COURT REPORTS
(1995) 2 S.C.R.
A
these three appeals after obtaining special leave.
Mr. J ethmalani, the learned counsel appearing for all the three
appellants first contended that the trial which took place in the 5th Court
was wholly without jurisdiction and consequently the convictions and sentences recorded by that Court were null and void. In elaborating his
B contention Mr. Jethmalani submitted that the High Court had no power to
transfer the case from the 10th Court to the 5th Court and that too by an
administrative order at a stage when, admittedly, the trial had already
commenced. Mr. Jethmalani drew our attention to Section 194 of the Code
to contend that a plain reading of the Section woul~ unmistakably show
C that the power of the High Court to direct a particrilar Court to try a case
could be exercised only at the initial stage where trial was yet to commence
and not thereafter. He next contended that the only other section which
empowered the High Court to transfer a. case under the Code was Section
407 but such a power could be exercised judicially only after complying
D with the requirements thereof and hearing the parties. As, admittedly, the
High Court did riot exercise such judicial power, the order of transfer
whereby the 5th Court acquired jurisdiction, must be held to be void and
ineffective. He lastly epntended that such grave illegality and want of
jurisdiction were not curable under Section 465 of the Code. In support of
this contention he relied upon the majority judgment of this Court in A.R:
E Antulay v. R.S. Nayak & Another, (1988) 2 sec 602.
·
Before considering the above contentions of Mr. Jethmalani, we may
meh.tion that in spite of sufficient opportunities given, the order of transfer
passed by the High Court was not produced before .us. Needless to say,
F had it been produced we would have exactly known the facts and circumstances which promoted the High Court to pass that order and clearly
appended the source of power. However, from the material on record
which we have already detailed, it appears that the order was passed by ·
the High Court in the administrative jurisdiction. Under Article 227 of the
Constitution of India every High Court has superintendence over all Courts
G and Tribunals throughout the territories in relation to which it exercises
jurisdiction and its trite that this power of superintendence entitles the
High Court to pass orders for administrative exigency and expediency. In
the instant case it appear that the High Court had exercised the power of
transfer in the context of the petition filed by some of the accused from
H jail complaining that they· could not be accommodates in the Court room
r
RANBIR YADAVv.STATE(M.K.MUKHERJEE,J.)
839
as a result of which some of them had to remain outside. It further appears A
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 C.ourt roq_m
to carry the briefs. Such a situation was obviously c.reated 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 B
5th Court, which we assume had a bigger and better arrangement to
accomm~te the accused, lawyers and other 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. Mr. Jethmalani, however,
contended that administrative power could not be exercised at a stage
when judicial power was not only available and operational but was equally C
effective and efficacious. According to Mr. Jcthmalani, if the former was
not contained the latter would be nugatory.
We arc unable to share the above view of Mr. Jethmalani. So long
as power can be and is exercised purely for administrative exigency without D
impinging upon an prejudicially aff~ 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 co-exist. On the contrary, the present case
illustrates how exerCise of administrative powers were more expedient,
efJective and efficacious. If the High Court had intended to exercise its E
judicial power of transfer invoking Section 407 of the Code it would have
necessitated compliance with all the procedural formalities thereof, besides
.... providing adequate opportunity 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 F
of superintendence,, inst~ad of judicial powers, the· High Court not only
redressed the grievan~s of the accused and other ~ected with the trial
but did it with utmost dispatch.
·
Coming now to A.R. Antulay's case. (supra) we find that the principles of law laid down in the majority judgment, to w\Uch Mr. Jethmalani G
drew our attention have no manner of application here.in. There questions
arose as to whether (i) the High Court could tr~er a case triable
according to Criminal Law Amendment Act, 1952 {'1952 Act' for short) by
a Special Court constituted thereunder to another Court, which was not a
Special Co~t and (ii) the earlier order of the Supreme Court trabsferring · H
'/
/
840
SUPREME COURT REPORTS
[1995) 2 S.C.R.
A the case pending before the Special Court to the High Court was valid and
proper. In answering both the questions in the negative the learned Judges,
expressing the majority view, observed that (i) Section 7(i) of the 1952 Act
created a condition which was sine qua 11011 for the trial of offences under
Section 6(i) of the said Act. The condition was that 11otwithstandi11g a11yB thing contained in the Code of Criminal Procedure or any other law the said
offence shall be triable by Special Judges only. By express terms therefore
·\
it took away the right of transfer of cases contained in the Code to any
· other Court which was not a Special Court and this was notwithstanding
an¥thing contained in Sections 406 and 407 of the Code and (ii) the earlier
oi~er of the · Supereme Court tansferring the case to the High Court was
C not authorised by law, namely, Section 7(i) of the 1952 Act and the
Supreme Court, by its direction could not confer jurisdiction on the High
Court of Bombay to try any case for which it did not possess such
jurisdiction under the scheme of the 1952 Act. As in the present case the
5th Court was competent under the Code to conduct the Sessions trial the
D order of transfer conferring jurisdiction on that Court and the trial that
followed cannot be said to be bad in law.
Since we have found that the order of transfer was made~ High
Court in exercise of its administrative powers, which was available to the
High Court under Article 227 of the Constitution of India the question
E raised by Mr. Jethmalani relating to the competence of the High Court to
exercise powers under Section 194 of the Code need not be answered.
Consequently, we need not look into the interpretation of Section 194 of
the .Code as given by the Court in Kehar Singh v. State, (1988) 3 SCC 609
'to'.'which our attention was drawn by Mr. Jethmalani. For the foregoing
F fiiscussioμ we find no merit in the first contention of Mr. Jethmalani.
Mr. Jethmalani next contended that having regard to the facts that
the 5th Court had, by its order dated April 16, 1986 decided to frame
charges afresh against the accused persons, including these three who were
later put on trial 'after their surrender and that pursuant thereto it framed
G charges and proceeded with the trial, the earlier trial conducted by the 10th
Court must be held to have come to an end, and that necessarily meant
that the evidence of the four witnesses, namely, Mahendra Singh, Nagender
Singh, Sukhdeo Singh and Ramchandra Singh who ~ere examined therein
could not be relied upon by the 5th Court for recording the impugned
H order of conviction and sentence. According to Mr. Jethmalani, the general
T
-
(
I
-
-
I
RANBIR YADAVv. STATE[M.K.MUKHERJEE,J.]
841
principle of law is that a Judge or Magistrate can decide a case only on A
the evidence recorded by him and the departure from this salutary principle is permissible only in those cases where he decides to invoke Section
326 of the Code to exercise his judicial discretion to act on the evidence
recorded by his predecessor or partly record~d by his predecessor and
partly recorded by him. Mr. Jethmalani submitted that as in the instant
case the trial Court had exercised its discretion to hold a de novo trial B
reference to and reliance upon any evidence recorded in the earlier trial
were patently illegal and incompetent. In support of this contention Mr.
Jethmalani relied upon the decision of this Court in Payare Lal v. State of
Punjab, [1962) 3 SCR 328. While on this point Mr. Jethmalani lastly
contended that once the trial Court had exercised its judicial discretion to C
hold a fresh trial, the High Courts interference with the same was not only
impermissible in view of the embargo of Section 397(2) of the Code but
was also unsustainable of merits.
To appreciate the above contentions of Mr. Jethmalani it will be
imperative to first refer to the legislative history behind Section 326 of the D
Code.