# The State of Uttar Pradesh v. Al o/Jau1111ad Noolt

- **Citation:** [1958] 1 S.C.R. 595
- **Court:** Supreme Court of India
- **Decided:** 1958
- **Case number:** Civil Appeal No. 130 of 1956
- **Bench:** S. R. Das, Venkatarama Ayyar, Jafer Imam, A. K. Sarkar, VIVIAN BosE
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/the-state-of-uttar-pradesh-v-al-o-jau1111ad-noolt-1402
- **Pages:** 23

## Headnote

Certiorari, writ of-Principles governing issue-Availability of alternative remedy by appeal, if ~ bar-Departmental enquiry-Violat.ion of principles of natural justice
-Presiding· officer himself a witness-Order of dismissal
made previous to the Constitution-Revision disallowed
after the Constitutio~uch order, if can be quashedC0nstitution of India, Art. 226.
A departmental enquiry against the respondent, a Head
Constable, was held by the District Superintendent of
Police. During the enquiry the District Superintendent of
Police himself became a witness and gave evidence at two
stages against the respondent, his statement being ·recorded
by a Deputy Superindendent of Police. The District Superintendent of Police then found the respondent guilty and
on April 201 1948, passed an order of dismissal against him.
The respondent went up in appeal to the Deputy Inspector
General of Police but the appeal was dismissed on May 7,
· 1949, The respondent then filed a revision applic:ltion to
the Inspector General of Police which was also dismissed
on April 22, 1950. Thereupon, the respondent filed a writ
petition under Art. 226 of the Constitution before the High
Court praying for the setting aside of the order of dismissal.
The High Court held that the rules of natural justice and
fair-play had been d.isregarded and accordingly, quashed
the proceedings and set aside the three several orders. The
State obtained a certificate of fitness and apj>ealed.
Held, (per curiam) that the District Superintendent of
:Police who had acted both as the judge and as a witness
· had disqualified himself from presiding over the enquiry.
Tlle procedure adopted was contrary to the rules of natural
justice and fair-play. Decisions and orders based on such
procedure are invalid and not binding.
There is no rule with regard to certiorari, as there is
with . mandamus, that it will lie only where there is no
other equally effective remedy. The existence of another
adequate remedy may be taken into eonsideration in the
exercise of the discretion. If an inferior Court or tribunal
of first instance -acts without jurisdiction or in excess of it
or contrary to the rules. of natural justice, the superior
Court may quite properly issue a writ of certiorari to
correct the error, even if an appeal to another inferior
Court or tribunal was available, whether recourse was or
·was not had to it. This would be so all the more in the
case of departmental tribunals composed of persons without adequate legal training and background.
76
1951
S•ptemh•r 30.
1957
The State of
Uttar Pradesh
v.
Al o/Jau1111ad Noolt
Da~ C.J.
596
SUPREME COURT REPORTS
[1958}
Janardan Reddy v. The State of Hyderabad, (1951)
S.C.R. 344 refe.rred to. King v. Postmaster-General, Exparte
Carmichael (1928) I K.B. 291; Rex v. Wandsworths Justices,
Exparte Read, (1942) I K.B. 281; Khurshed Modi v. Rent
ControUer, Bombay, A.l.R. (1947)
Born. 46;
Assistant
Collector of Customs v. Soorajmull Nagarmull, (1952) 56
C.W .N. 453 relied on ..
Held, (per S. R. Das,. C. J., Venkatarama Ayyar, Jafer
Imam and Sarkar, J. · Bo!le J., dessenting) that Art. 226
of the Constitution is not retrospective and the High Court
could not exercise its powers under Art. 226 to quash the
order of dismissal passed before the commencemtmt of
the Constitution. It is wrong to say that the order of dismissal passed on April 20, 1948, merged in the order in
the appeal dated May 7, 1949, and the two orders ·merged
in the order in the revision dated April 22, 1950, or that the
original order of dismissal became final only on the passing of the order in revision. The original order of dismissal was operative on its own strength.
Per 8ose, J.-The High Court had jurisdiction to quash
all the orders, as the proceedings should be regarded as
still pendi!lg till the order in revision was passed on April
22, 1950. Tile District Superintendent of Police was acting
in a judicial capacity and was bound to observe principles
of natural justice. These princi

## Text

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S.C.R.
SUPREME COURT REPORTS
595
THE STATE OF UTTAR PRADESH
u~
MOHAMMAD NOOH
(S. R. DAS, c. J., VENKATARAMA AYYAR, JAFER IMAM,
A. K. SARKAR and VIVIAN BosE, JJ.)
Certiorari, writ of-Principles governing issue-Availability of alternative remedy by appeal, if ~ bar-Departmental enquiry-Violat.ion of principles of natural justice
-Presiding· officer himself a witness-Order of dismissal
made previous to the Constitution-Revision disallowed
after the Constitutio~uch order, if can be quashedC0nstitution of India, Art. 226.
A departmental enquiry against the respondent, a Head
Constable, was held by the District Superintendent of
Police. During the enquiry the District Superintendent of
Police himself became a witness and gave evidence at two
stages against the respondent, his statement being ·recorded
by a Deputy Superindendent of Police. The District Superintendent of Police then found the respondent guilty and
on April 201 1948, passed an order of dismissal against him.
The respondent went up in appeal to the Deputy Inspector
General of Police but the appeal was dismissed on May 7,
· 1949, The respondent then filed a revision applic:ltion to
the Inspector General of Police which was also dismissed
on April 22, 1950. Thereupon, the respondent filed a writ
petition under Art. 226 of the Constitution before the High
Court praying for the setting aside of the order of dismissal.
The High Court held that the rules of natural justice and
fair-play had been d.isregarded and accordingly, quashed
the proceedings and set aside the three several orders. The
State obtained a certificate of fitness and apj>ealed.
Held, (per curiam) that the District Superintendent of
:Police who had acted both as the judge and as a witness
· had disqualified himself from presiding over the enquiry.
Tlle procedure adopted was contrary to the rules of natural
justice and fair-play. Decisions and orders based on such
procedure are invalid and not binding.
There is no rule with regard to certiorari, as there is
with . mandamus, that it will lie only where there is no
other equally effective remedy. The existence of another
adequate remedy may be taken into eonsideration in the
exercise of the discretion. If an inferior Court or tribunal
of first instance -acts without jurisdiction or in excess of it
or contrary to the rules. of natural justice, the superior
Court may quite properly issue a writ of certiorari to
correct the error, even if an appeal to another inferior
Court or tribunal was available, whether recourse was or
·was not had to it. This would be so all the more in the
case of departmental tribunals composed of persons without adequate legal training and background.
76
1951
S•ptemh•r 30.
1957
The State of
Uttar Pradesh
v.
Al o/Jau1111ad Noolt
Da~ C.J.
596
SUPREME COURT REPORTS
[1958}
Janardan Reddy v. The State of Hyderabad, (1951)
S.C.R. 344 refe.rred to. King v. Postmaster-General, Exparte
Carmichael (1928) I K.B. 291; Rex v. Wandsworths Justices,
Exparte Read, (1942) I K.B. 281; Khurshed Modi v. Rent
ControUer, Bombay, A.l.R. (1947)
Born. 46;
Assistant
Collector of Customs v. Soorajmull Nagarmull, (1952) 56
C.W .N. 453 relied on ..
Held, (per S. R. Das,. C. J., Venkatarama Ayyar, Jafer
Imam and Sarkar, J. · Bo!le J., dessenting) that Art. 226
of the Constitution is not retrospective and the High Court
could not exercise its powers under Art. 226 to quash the
order of dismissal passed before the commencemtmt of
the Constitution. It is wrong to say that the order of dismissal passed on April 20, 1948, merged in the order in
the appeal dated May 7, 1949, and the two orders ·merged
in the order in the revision dated April 22, 1950, or that the
original order of dismissal became final only on the passing of the order in revision. The original order of dismissal was operative on its own strength.
Per 8ose, J.-The High Court had jurisdiction to quash
all the orders, as the proceedings should be regarded as
still pendi!lg till the order in revision was passed on April
22, 1950. Tile District Superintendent of Police was acting
in a judicial capacity and was bound to observe principles
of natural justice. These principles he ignored.
CIVIL APPELLATE JURISDICTION: Civil Appeal No.
130 of 1956.
·
Appeal from the judgement and decree. dated the
10th March, 1952, of the Allahabad High Court in Civil
Writ No. 737 of 1951.
G. C. Mathur and C. P. Lal, for the appellant.
S. P. Sinlia and S. D. Sekhri, for the respondent.
1957. September 30. The judgment of Das C. J.,
Venkatarama Ayyar, Jafer Imam and Sarkar JJ. was
delivered by Das C. J. Bose J. delivered a separate
judgment.
DAS C. J.-This is an appeal filed under a certificate
of fitness granted by the High Court of Judicature at
Allahabad under Arts. 132(1) and 133 (1) (c) of the
Constitution. It is directed against the judgment and
order of a Division Bench of the said High Court
pronounced on March 10, 1952, in Civil Misc. Writ
No. 7376 of 1951 quashing the departmental proceedings against the respondent and the orders passed
S.C.R.
SUPREME COURT REPORTS
597
therein, namely, the order for his dismissal passed by
1957
tb.e District Superintendent of Police on December 21,
The state of,
1948, the order of the Deputy Inspector General of
u11ar PradeJh
Police passed on June 7, 1949, dismissing his ~ppeal
v.
against the order of his dismissal and the order of the Mohammad Nook
Inspector General of Police dated April 22, 1950 reject-
-
DasC.J.
ing his application for revision. The judgment of the
High Court also directed that, if it were desired to
proceed against the respondent, the trial should be
presided ever by a person other than the District
Superintendent of Police who gave evidence in the
case and also passed the order of dismissal against the
respondent and that it should be in strict conformity
with the relevant Police Regulations.
The respondent was a constable in the Uttar J;>radesh Police Force and was, at the material time, officiating as a Head Constable and posted in the District
of Fatehpur. In December, 1947, sixty canc,lidates had
to be selected from the Police Force for training at the
Police Training College, Moradabad. The respondent
was sent up for selection from the District of Fatehput\ He, however, failed in the Hindi test and was
not selected and sixty other candidates were selected
for the training.
On December 8, 1947 a letter, purporting to have
been issued from Lucknow, was received in the U.P.
Police Head Office at Allahabad intimating that the
respondent had been selected for training at the Police
Training College. As there were only sixty vacancies
and as sixty candidates had already been selected, the
Head Office people were led to make enquiries as to
how this letter came to be issued from Lucknow. The
letter having been placed before the Inspector General
of Police, Lucknow, he declared it to be a forgery. As
the letter was ostensibly for the benefit of the respondent, ,it was naturally suspected that it must have been
sent by or at his instance.
On March, 15, 1948 the respondent was placed
under suspension. Under s. 243 of the Government
of India Act, 1935, which was then in force, the respondent, who was in the police force, was n,ot governed by sub-s. (3) of s. 240 which corresponds to art.
598
SUPREME COURT REPORTS
[1958)
1957
311(2) of the Constitution but was governed by the
Police Act, 1861 (Act V of 1861) and the Regulations
The State of
S
G
A
, Uttar Pradesh
made thereunder by the tate
overnment.
ccorv.
dingly, under s. 7 of the Police Act read with Uttar
Mohammad Nooh Pradesh Police Regulations, a departmental enquiry,
called a "trial" in the Regulations, was started against
Das c. J.
the respondent. One Shri B. N. Bhalla, the then District Superintendent of Police, Fatehpur, was deputed
to hold the trial. He found the respondent guilty and
on April 20, 1948 passed an order of dismissal against
him. The respondent went up on appeal to the Deputy
Inspector General of Police under Reg. 508. That appeal was dismissed on June 7, 1949. The respondent
then filed a revision application to the Inspector General of Police m1der Reg. 512. That application was
also dismissed on April 22, 1950.
Having exhausted all his remedies under the
Police Act read with the Regulations thereunder the
respondent on February 24, 1951, filed a writ petition under Art. 226 of the Constitution, praying that
the file of the applicant (now respondent) be called
for and his dismissal be set aside and that he be given
such further and other relief as he may, in law, be
entitled to.
The main point taken in the affidavit
filed in support of the petition and urged before the
High Court was that Shri B. N. Bhalla, District
Superintendent of Police, who presided over the trial
and as such had to come to a finding and to make an
order, also gave his own evidence in the proceedings
at two stages and had thus become disqualified from
continuing as the judge, as, in the circumstances he
was bound to be biased against the respondent.
A preliminary objection was taken on behalf of
the appellant State that the High Court had no power,
imder Art. 226, to deal with the order of dismissal
which had been passed at a time when the Constitution of India had not come into force, but the High
Court rejected that plea as it took the view that the
order of dismissal passed by the District Superintendent of Police on December 20, 1948, and the order of
dismissal of the appeal passed by the Deputy Inspector
General of Police on June 7, 1949, had not become final
S.C.R.
SUPREME COURT. REPO:B.TS
599
until the Inspector General of Police, on April 22,
)957
1950, made his order dismissing the revision applicaThe State 01
tion filed by the respondent under Reg. 512 and that
Uttar Pra<fesh
as the last mentioned order had been passed after the
v.
Constitution had come into force, and had, by Art. Mohammad Noolt
226, vested powers in the High Court to issue prerogah d
1
d
DasC.J.
tive writs, the High Court a amp .e juris ietion to
exercise its newly .acquired powers undet that article.
On the merits the High Court came to th.e conclusion
that the rules of natural justice and fair-play had been
disregarded, . in that the District Superintendent of
Police had continued to preside over the trial . even
after it had become necessary for him to put on the
record his own testimony as against that of another
witness and it held that the presiding officer had, in
the circumstances, become disqualified, on the ground
of bias, from further acting as the presiding officer and
that the departmental trial conducted by him thereafter had become vitiated. The High Court, accordingly, quashed the proceedings and set aside the three
several orders hereinbefore mentioned. The appellant
State on February 4, 1955, obtained from the High
Court a certificate of fitness under Arts. 132 ( 1) and
133(1) (c) and hence the present appeal to this Court.
It will be· recalled that the forged letter of December 8, 1947, was suspected to have been manufactured
or sent by or at the instance of the respondent to further his interest. · The case against the respondent was
that the offending letter had been typed by one Shariful Hasan, the typist attached to the office of the
Superintendent of Police, Fatehpur, and; therefore, it
was essential for the department to establish that the
respondent was in friendly relations with Shariful
Hasan who was said to have typed the letter. Apparently in some preliminary enquiry and in the presence of Shri B. N. Bhalla one Mohammad ~halil, a
Head Constable, had spoken about Shariful Hasan
being very friendly with the respondent. But while
giving his evidence at the departmental trial the said
Mohammad Khalil denied having made any such statl!-
ment. In the circumstances it became necessary to
contradict him by the testimony of Shri B. N. Bhalla
600
SUPREME COURT REPORTS
[1958)
1957
in whose presence that witness had, on a previous
occasion, stated that Shariful Hasan was very friendT/Je State of
Uttar Pradesh ly with the respondent.
Accordingly Shri B. N.
v.
Bhalla had his testimony recorded by a Deputy
Mohammad Nooh Superintendent of Police. This was done at two
stages, namely, once before the charges were framed
Das c. J.
and again after the framing of the charges. The respondent's grievance is that Shri B. N. Bhalla, who had
thus become a witness in the case, ought not to have
further continued to act as the presiding officer and
that his continuing to do so vitiated the trial and his
order was a nullity. That Shri B. N. Bhalla had his
own testimony recorded in the case is not denied.
Indeed the appellant State, in opposition to the respondent's writ application, filed an affidavit affirmed
by Shri B. N. Bhalla, paragraph 8 of which runs as
follows:
"8. That the deponent gave his first statement on
13th October, 1948, which was recorded by Shri
Mohammad Sadiq, Deputy Superintendent of Police
before the charge and the second statement on 25th
October, 1948, which was recorded by another Deputy
Superintendent of Police after the charge. One Head
Constable, Mohammad Khalil, who was prosecution
witness in the case, when cross-examined denied to
have said that the applicant and Shariful Hasan were
on friendly terms. He turned hostile and it became
necessary for the deponent to depose about certain
facts which had happened in his presence and which
belied the testimony of Mohammad Khalil."
The salient facts being thus admitted there can be no
escape from the conclusion that Shri B. N. Bhalla
should not have presided over the trial any longer.
The point in issue was whether Shariful Hasan was in
friendly relationship with the respondent. Mohammad
Khalil had in his evidence at the trial denied having
made any statement to this effect. Shri B. N. Bhalla
gave evidence that Mohammad Khalil had in his
presence .admitted this friendship of Shariful Hasan
with the respondent.
Which of the two witnesses,
Mohammad Khalil and Shri B. N. Bhalla, was to be
believed was the duty of the person presiding over the
trial to determine. Shri B. N. Bhalla was obviously
'
S.C.R.
SUPREl\IE COURT REPORTS
601
I957
most ill suited to undertake that task. Having pitted
his evidence against that of l\Iohammad Khalil Shri
d ,
d
The State of
B. N. Bhalla vacated the Ju ge s seat an entered the
Uttar Pradesh
arena as a witness. The two roles could not obviously
. v.
be played by one and the same person. Indeed Shri Mohammad Nooh
B. N. Bhalla himself realised it and accordingly had
his own evidence recorded on both the occasions by
other high officers. It is futile to e:rpect that he could,
in the circumstances, hold the scale even. It is
suggested that there might have been other evidence
establishing the friendship between Shariful Hasan
and the respondent and that the evidence of Shri
B. N. Bhalla might not have been relied on or might
not have been the deciding factor. · There is nothing
on the record before us . to support this suggestion.
But assuming that Shri B. N. Bhalla did not rely on
his own evidence in preference to that of l\Iohammad
Khalil-a fact which is hard to believe, especially in
the face of his own affidavit quoted above-the act of .
Shri B. N. Bhalla in having his own testimony recorded in the case indubitably evidences a state of mind
which clearly discloses considerable bias against the
respondent. If it shocks our notions of judicial propriety and fair-play, as indeed it does, it was bound to
make a deeper impression on the mind of the respondent as to the unreality and futility of the proceedings
conducted in this fashion.
\Ve find ourselves in
agreement with the High Court that the rules of
natural justice were completely discarded and all
canons of fair-play were grievously violated by Shri
n. N. Bhalla continuing to preside over the trial.
Decision arrived at by such process and order founded
on such decision cannot possibly be regarded as valid
or binding.
L<iarned counsel appearing for the appellant State
then urges that, assuming that any error, irregularity
or illegality had been committed by Shri B. N. Bhalla
in the course of the trial held by him, a writ application under art. 226 was not the proper remedy for
correcting the same. Reference is made to s. 7 of the
Police Act, 1861 which, subject to such rules as the
State Government may make under the Act, gives
Dase.].
602
SUPREME COURT REPORTS
[1958]
z957
power to certain specified Police Officers of high rank
The State of
to dismiss, suspend or reduce any Police Officer of the
uttar pradeoh
subordinate ranks whom they may think remiss or
v.
negligent in the discharge of his duties or unfit for the
Mohammad Nech same. Regulation 508 of tho Police Regulations made
Das c.j.
by the State of Uttar Pradesh provides for au appeal
from the decisiOu of the officer holding the trial. Likewise Reg.' 512 confers on an officer whose appeal has
been rejected to submit an application for revision to
the authority , next in rank above that by which his
appeal has been rejected. The argument is that the
Police Act and the Regulations made thereunder
having provided for an appeal and a revision and
having set up._special forums with full powers and
jurisdiction to correct the error, -irregularity or illegality touching jurisdiction, procedure and the merits
committed by the officer presiding over the trial, such
forums alone are competent to correct all such errors,
irregularities and illegalities. In this case admittedly
the respondent preferred an appeal and then weut up
to the Inspector General of Police in revision. In the
appeal and in the revision the respondent either took
the plea of the breach of the rules of natural justice
and fair-play now complained of or he did not. The
respondent knew the material facts and must be
deemed to have been conscious of his legal rights in
the matter and, therefore, if he failed to raise the
objection before the officer who was dealing with his
appeal or revision he cannot, it is urged, be permitted
to do so for the first time on a writ petition under
Art. 226 before the High Court, as has been held by
this Court in 1'Janak Lal v. Dr. Prem Chand('). On
the other hand if he had· raised tho question in his
grounds of appeal or in his revision petition and
insisted on it at the hearing of his appeal or his revision, application then tho orders of dismissal of his
appeal and his revision petition·by authorities fully
,competent and having full powers and jurisdiction to
decide the question must be taken as a rejection of
that plea on its merits and as no error or irregularity
or illegality is alleged to have been committed at the
(1) A.l.R. 1957 S.C. 425. _
S.C.R.
SUPREME COURT REPORTS
603
stages of the appeal or the revision proceedings, the
High Court could not, under Art .. 226, interfere in the
matter. In support of this argument learned counsel
for the appellant State relies upon the decision of this
Court in Janardan Reddy v. The State of Hyderabad(1). In that case the petitioners were convicted
by a special Tribunal of Hyderabad of murder and
other offences and sentenced to death by hanging.
Their convictions and sentences had been confirmed
by the Hyderabad High Court before January 26,
1950, when the Constitution of India came into force.
It was after the commencement of the Constitution
that the petitioners applied to this Court under Art.
32 praying ( 1) for a writ in the nature of certiorari
calling upon the Government of Hyderabad and the
Special Judge to produce the records of the case and
to show cause why the convictions and sentences
should not be quashed and ( 2) for a writ of prohibition directing the Government and the Special Judge
not to execute the petitioners. Subsequently the petition was amended, with the leave of the court, by
adding prayer ( 3) for a writ of habeas corpus. A
number of points were raised before this Court. As
regards the several points complaining of
alleged
illegality by reason of misjoinder of charges and the
inflection of the sentence of death by hanging and not
decapitation this Court at page 351 observed :
"But, for the purpose of the present case,· it is
sufficient to point out that even if we assume that
there was some defect in the procedure followed at the
trial, it does not follow that the trial court acted without jurisdiction. There is a basic difference between
want of jurisdiction, and an illegal or irregular exercise
of jurisdiction, and our attention has not been drawn
to any authority in which mere non-compliance with
the rules of procedure has been made a ground for
granting one of the writs prayed for. In either case,
the defect, if any, can according to the procedure
established by law be corrected only by a court of
appeal or revision. Here the appellate court which
was competent to deal with the matter has pronounced
its judgment against the petitioners, and the matter
(1) [1951) S.C.R. 344.
77
1957
The State of
Uttar Pradesh
v.
Mohammad Nooh
Das C.J.
1957
The State of
Uuar Prad~sh
v.
Moha1nmad Nooh
Das C. J.
604
SUPREME COURT REPORTS
[1958]
having been finally decided is not one to be reopened
in a proceeding under article 32 of the Constitution."
As regards the prayers for writs of certiorari and
prohibitiOn it was held that the writs of certiorari and
prohibition were hardly appropriate remedies in that
case, because they were usually directed to an inferior
court, but at the date when the High Court dealt with
those cases and confirmed the convictions and
sentences of the petitioners, this Court was not in
existence, and at that point of time, by no stretch of
reasoning, the High Court could be said to have been
subordinate to this Court. Then this Court went on to
consider the remaining questions, namely, whether
after the commencement of the Constitution this Court
could exercise its newly acquired jurisdiction under
Art. 32 and issue a writ of habeas corpus as the detention of the petitioners was con~inuing even after the
commencement of the Constitution. It was urged
that it was open to the petitioners to prove by affidavit
that the court which passed the order had acted without jurisdiction or in excess of it and the superior
court was free to investigate the matter. After stating
that a return that the persons were in detention in
execution of sentences on indictment on criminal
charges was a sufficient answer to the application for a
wirt of habeas corpus, this Court proceeded at pages
366-367 to observe as follows :
"Assuming however, that it is open even in such
cases to investigate the question of jurisdiction, as
was held in In re Authers('), it appears to us that the
learned judges who decided that case went too far in
holding that notwithstanding the fact that the conviction and sentence had been upheld on appeal by a
court of competent jurisdiction, the mere fact that the
trial court, had acted without jurisdiction would
justify interference, treating the appellate order as a
nullity. Evidently, the Appellate Court, in a case
which properly comes before it on appeal, is fully competent to decide whether the trial was with or without jurisdiction, and it has jurisdiction to decide the
matter rightly as well as wrongly. If it affirms the con-
(•) [188gJ L.R. 22 Q.B.D. 345·
S.C.R.
SUPREME COURT REPORTS
600
1957
viction and thereby decides wrongly that the . trial
court had the jurisdiction to try and convict, it canThe State of
not be said to have adted without jurisdiction, and its
Uttar ~ratlesh
order cannot be treated as- a nullity. It is true that
v.
there is no such thing as the principle of constructive Mohammad Nooh
res judicata in a criminal case, but there is such a.
principle as finality of judgments, which applies to
criminal as well as civil cases and is implicit in every.
system, wherein provisions are to be found for coreet~
ing errors in appeal or in revision."
In the first place it must be noted that the .two observations quoted from the decision of this Court on
which reliance is placed on behalf of the appellant
State were made ih a case where the alleged error,
irregularity or illegality was committed by a special
·tribunal which had not merely the trappings of a
court but was a court of law presided over by a judge
with legal training and background and bound by
rules of evidence and procedure laid down for it and
the appeal from its decision lay before the highest and
final court of the State-a superior court of record.
But orders made on departmental "trial" held by an
officer in the department without any legal tr:aining
and orders passed by his superior officers in the same
department on appeal or in . revision which, in the
words of Harries C.J. in Assistant CoU.ector of Cur;-
toms v. Soorajmuil Nagarmull (1) were only in the
nature of an appeal from Caesar to Caesar and which
might not be regarded with any great confidence by
persons brought before them can hardly be equated
with reasonable propriety with the orders passed by
the Special Tribunal and an appeal therefrom by the
Hyderabad High Court with reference to which bodies
alone. the said observations had been made.
In the next place it must be borne in mind that
there is no rufo, with regard to certiorari as there is
with mandamus, that it will lie only where there is no
other equally effective remedy. It is well established
that, provided the requisite grounds exist, certiorari,
will lie although a right of appeal has been conferred
by statute.
(Halsbury's Laws of England, 3rd Ed.,
Vol. 11, p. 130 and the cases cited there)
The fact
(1) (l952Y 56 C.W.N. 453, .f67.
Das C. J.
606
SUPREME COURT REPORTS
[1958)
1957
that the aggrieved party has another and adequate
The Stat• of remedy may be taken into c:onsideration by the
u11ar Pra~h superior court in arriving at a conclusion as to whev.
ther it should, in exercise of its discretion, issue ot
Mohammafl Noah writ o.f certiorari to quash the proceedings and
Das c. 1.
decisions of inferior cQ\Jl°t$ suborclinate to it and
ordiniirily the auperior c1>Urt will decline t(l interfere
UI\til the aggrieved party has exhauste(i his other
statutory remedies, if any. B-ut this rule requiring
the exhaustion of statutory remedies before the writ
will be granted is a rule of policy, convenience and
discretion r;tther than a rule of law and instances are
numerous where a writ of certiorari has been issued
in spite of the fact that the aggrieved party had other
adequate legal remedies. In the King v. PostmasterGeneral Ex parte Carmichael( 1) a certiorari was issued although the aggrieved party had an alternative
Temedy by way of appeal. It has been held that the
superior court will readily issue a certiorari in a case
where there has been a denial of natural justice before
a court of summary jurisdiction. The case of Rex v.
Wandsworth Justices Ex parte Read(') is an authority
in. point. In that case a man had been convicted in a
court of sum!Ilary jurisdiction wl,tho.ut giving him an
opportunity of being heard. It was held that his
remedy was not by a case stated or by an appeal
before the quarter sessions but by application to the
High Court for an order of certiorari to reilJ.ove and
quash the conviction. At page 284 Viscount Caldecote C.J. observed :
"It remains to consider the argument that the
remedy of certiorari is not open to the applicant
because others were available. It would be ludicrous
in such a case as the present for the convicted person
to ask for a case to be stated.. It would mean asking
this court to consider as a question of law whether
justices were right in convicting a man without
hearing his evidence. That is so extravagant an argument as not to merit a moment's consideration. As
to the right of appeal to qua1ter sessions, it may be
that the applicant could have had his remedy if he
(1)[19•8] 1K.B.091,
(•)(1940) 1 K.B. 081.
S.C.R.
SUPREME COURT REPORTS
. 607
:Q~a. pursued that cour.se, tat\~ I ani· PQt aw,are of aqy
1917
reason why, ~ in such ch'cumstances llB these., he
ne 51* of
preferred to apply for· an other of certiorari to quash uuar Produh
hi!! convictfon, the. court should be debarred from
v
granting his application.''
M~6'rl11Uld. Noo.h
Likewise in Kkt4rshed ·Modi v. &ant Controller,
Bombay( 1 ), it was held that the JJ:igh Court would not
. refuse to issue a writ of certiorari merely. because
there was a right of appeal. It was recognized that ordinarily the High Court w.ould reqilire the petitioner to
have recourse to his ordin~ remedies. but if it found·
that there had been a breach of fundamental principles of justice, the High Court would certainly not
hesitate to issue the writ of certiorari. To the SAJile
effect are the following observations of Harries C.J,
in Assis~nt Collector of · Cqstoms v. Soorajmufl.
Nagarmull (2) at page 470 :
"There can, I think, be no doubt that Court can
refuse to issue a certiorari if the petitioner has other
remedies equally convenient and effective. But it
appeai:s to me. that there can be cases where the court
can and should issue a certiorari even where such
alternative remedies are available. Where a Court or
Tribunal, which is called upon to exercise judicial or
qu(ISi-judicial functions dis.cards· all rules of natural
justice and arrives at a decision contrary to all
accepted principles of justice then it appears to me
that the court can and must interfere."
It has also been held that a litigant who has lost his
right of appeal or has failed to perfect an appeal by no
fault of his own may in a proper case obtain a review
by certiorari. (See Corpus Juris Secundum Vol. 14.
art. 40, p. 189). If, therefore, the existence of other
adequate legal remedies is not per se a bar to the issue
of a writ of certiorari and if in a proper case it may be
the duty of the superior court to issue a writ of
certiorari to correct the errors of an inferior court or
tribunal called upon to exercise judicial or quasi-judicial functions and_ not to relegate the petitioner to
other legal remedies avaHable to him and if the
superior court can in a proper case exercise its
(1) A.J.R. 1947 Bom. 46.
(2) (195t) 56 C.W.N. 453.
Dase.I.
608
SUPREME COURT REPORTS
Cl958J
19:S7
jurisdiction in favour of a petitioner who has allowed
the time to appeal to expire or has not perfected his
The Stale of
Utt"' Pradtsh appeal, e.g., by furnishing security required by the
v.
statute, should it then be laid down as an inflexible
Mohammad Noah rule of law that the superior court must deny the writ
when an inferior court or tribunal by discarding all
Das c. 1•
principles of natural justice and all accepted rules of
procedure arrived at a conclusion which shocks the
sense of justice and fair-play merely because such-0.ecision has been upheld by another inferior court or
tribunal on appeal or revision ? The case of In re
Authers(') referred to in Janardan Reddy's case(')
furnishes the answer. There the manager of a club
was convicted under a certain statute for selling beer
by retail without an excise retail license. Subsequently he was convicted of selling intoxicating liquor,
namely, beer without a license under another statute.
Upon hearing of the later charge the magistrate treated it as a second offence and imposed a full penalty
authorised in the case of a second offence by the latter
statute. His appeal to the quarter sessions having
been dismissed, .he applied for a writ of habeas corpus
and it was granted by the King's Bench Division on
the ground that the magistrate could not treat the
later offence as a second offence because it was not a
second offence under the Act under which he was
convicted for the second time. Evidently the poin~
was taken that if there had been any error, irregularity or illegality committed by the magistrate, the
quarter sessions could have on appeal corrected the
same and that the quarter sessions having dismissed
the appeal the court of Queen's Bench Division could
not issue lite writ of habeas corpus. This was repelled by the following observation of Hawkins J.:
"This is true as a fact, but it puts the prosecution
in no better position, for if the magistrate had no
power to give himself jurisdiction by finding that
there had been a first offence where there had been
none, the justices could not give it to him."
On the authorities referred to above it appears to
us that there may conceivably be cases-and the in-
<•> [r88g) L.R. 22 Q,B.D. 345•
(2) [1951) S.C.R.344
S.C.R.
SUPREME COURT REPORTS
609
stant case is in point-where the error, irregularity or
1957
illegality touching jurisdiction or procedure committed
The State of
by an inferior court or tribunal of first instance is so
Uttar Pradelh
patent and. lou~y obtrusive. that .it leav~s on .its M~d
Noolr
decision an mdehble stamp of mfirm1ty or vice which
_
cannot be obliterated or cured on appeal or revision.
Das c. 1.
If an inferior court or tribunal of first instance acts
wholly without jurisdiction or patently in excess of
jurisdiction or manifestly conducts the proceedings
before it in a manner which is contrary to the rules of
natural justice and all accepted rules of procE'dure and
which offends the superior court's sense of fair play
the superior court may, we think, quite properly exercise its power to issue the prerogative writ of certiornri to correct the error of the court or tribunal of first
instance, even if an appeal to another inferior court
or tribunal was available and recourse was not had to
it or if recourse was had to it, it confirmed what
ex facie was a nullity for reasons aforementioned. This
would be so all the more if the tribunals holding the
original trial and the tribunals hearing the appeal or
revision were merely departmental tribunals composed
of persons belonging to the departmental hierarchy
without adequate legal training and background and
. whose glaring lapses occasionally come to our notice.
The superior court will ordinarily decline to interfere
by issuing certiorari and all we say is that in a proper
case of the kind mentioned above it has the power to
do so and may and should exercise it. We sav no
more than that.
Learned counsel for the appellant State next urges
that because the order of dismissal was passed by the
District Superintendent of Police on December 20,
1948, and the order dismissing the appeal was passed
by the Deputy Inspector General of Police on June 7,
1949, both of which were before the commencement of
the Constitution, the High Court could not exercise its
powers under Art. 226 to quash those orders.
This
argument is countered by the respondent by the
argument that the dismissal order of December 20,
1948, did not become final until after the InspectorGeneral
of Police had
dismissed the
revision
L2SC/61-2
1957
The State of
Ultar Pradesh
610
SUPREME COURT REPORTS
(1958]
application on April 22, 1950, that is to say, after the
Constitution came into force, and, therefore, the High
Court had ample power to quash all the three orders.
Mo/Jam;~d Nooh
It is not disputed that our Constitution is prospective in its application and has no retrospective operaDas c. J.
ti on except where the contrary has been expressly
provided for. It has been held in a series of decisions
of the High Courts, some of which are referred to
in the judgment under appeal, that Art. 226 and
Art. 227 have no retrospective operation and transactions which are past and closed and the rights and
liabilities which have accrued and vested would remain unaffected. The correctness of this principle has
not been questioned by the High Court when dealing
with the present case and has not been disputed before us. It is, therefore, conceded that if the matter
had rested with the order of dismissal passed by the
District Superintendent of Police on April 20, 1948,
and the order passed by the Deputy Inspector-General
of Police on June 7, 1949, dismissing the appeal and
confirming the order for the dismissal of the respondent, an application for a writ under Art. 226 would
not lie in this High Court to set aside those orders as
this was not one of the High Courts that had writ
jurisdiction before the Constitution. It is, however,
contended that the order of dismissal dated April 20,
1948, had merged in the order passed on appeal on
June 7, 1949, and that both the orders merged in the
order passed by the Inspector-General of Police on
April 22, 1950, on the revision application. It is said
that the revisional jurisdiction is a part of the appellate jurisdiction and the principle on which a decree
of the court of first instance in a civil suit merges in
the decree on appeal applies with equal force to an
order made on an application for revision and consequently both the orders passed by the District Superintendent of Pol.ice and that passed on appeal by the
Deputy Insp6'ctor-General of Police merged in the
order passed on revision by the Inspector-General of
Police on April 22, 1950. To put it shortly, the contention of the respondent is that the order of dismissal
passed on April 20, 1948, became final only on the
S.C.R.
SUPREME COURT REPORTS
611
passing of the order in revision on April 22, 1950, and
as that order was passed after the date of the commencement of the Constitution, its validity could be
called. in question on an application under Art. 226.
1957
The State of
Uttar Pradesh
v.
Mohammad Nooh
There appear to be two answers to the foregoing
contention.
As we have already observed an
Das c. J.
order of dismissal passed on a departmental enquiry
by an officer in the department and an order
passed by another officer next higher in rank dismissing
an
appeal 'therefrom
and
an
order.
rejecting an application for revision by the head
<:>f the department can hardly be equated with any
propriety with decrees made in a civil suit under the
Code of Civil Procedure by the court of first instance
and the decree dismissing the appeal therefrom by an
appeal court and the order dismissing the revision
petition by a yet higher court, as has been sought to
be done by the High Court in this case, becaui;;e the
departmental tribunals of the first instance or on appeal or revision are not regular courts manned by persons trained in law although they may have the trappings of the courts of law. The danger of so doing
is evident from what has happened in the very case ·
now before us. In the next place, while it is true that
a decree of a court of first instance may be said to
merge in the decree passed on appeal therefrom or
even in the order. passed in revision it does so only
for certain purposes, namely, for the purposes of computing the period of limitation for execution of the
decree as in Batuk Nath v. Munni Dei(1), of for computing the period of limitation for an application for
final decree in a mortgage suit as in Jowad Hussain v.
Gendan Singh (2).
But, as pointed out by Sir
Lawrence Jenkins in delivering the judgment of the
Privy Council in Juscurn Boid v. Prithichand Lal( 3 )
whatever be the theory under other systems of law,
under the Indian Law and procedure an original decree is not suspended by the presentation of an appeal
nor is its operation interrupted where the decree on
(1) (1914) L.R. 41 I.A. 104.
(2) (1926) L.R. 53 I.A. 197.
(3) (1918) L.R. 46 I.A. 52; I.L.R. 46 Cal. 670, 678-679.
612
SUPREME COURT REPORTS
[19581
1957
appeal is merely one of dismissal. There is nothing
The State of in the Indian Law to warrant the suggestion that the
Uttar Pradesh decree or order of the court or tribunal of the first inv;
stance becomes final only on the termination of all
Mohammad Nooh proceedings by way of appeal or revision. The filing
·D-;; J
of the appeal or revision may put the decree or order
as · •
in jeopardy but until it is reversed or modified it remains effective.