STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR ETC & Ors.

Order

Review/alteration of judgment - Permissibility - Held: There is no power with the criminal court to review after judgment is rendered. Res judicata: Writ of habeas corpus petitions filed earlier and dealt with by the courts in accordance with law - Fresh C petition in respect of the same subject matter filed after 10 years - Maintainability of - Held: A second petition for issuing a writ of habeas corpus is barred by principles of res judicata - The doctrine of res judicata may not apply in case a writ petition under Article 32 of the Constitution is filed before D Supreme Court after disposal of a habeas corpus writ petition under Article 2.26 of the Constitution by the High Court - H?wever, it is not possible to re-approach the High Court for the same relief by filing a fresh writ petition - In case, a petition by issuing writ of habeas corpus is dismissed by the High E Court and Special Leave Petition against the same is also dismissed, a petition under Article 32 of the Constitution, seeking the same relief would not be maintainable - There may be certain exceptions to the rule that a person was not aware of the correct facts while filing the first petition or the F events have arisen subsequent to making of the first application - The Court must bear in mind that doctrine of res judicata is confined generally to civil action but inapplicable to illegal action and fundamentally lawless order - A subsequent petition of habeas corpus on fresh grounds which G were not taken in the earlier petition for the same relief may be permissible.

Appeal: Special leave petition (SLP)- Dismissal of, in limine - Held: Dismissal of the SLP in limine does not mean that the reasoning of the judgment of the High Court against H STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR & ORS. ETC 543 which the SLP had been filed before the Supreme Court stood A affirmed or the judgment and order impugned merged with such order of Supreme Court on dismissal of the petition - It would simply mean that Supreme Court did not consider the case worth examining for a reason, which may be other than merit of the case - An order rejecting the SLP at the threshold B without detailed reasons, therefore, would not constitute any declaration of law or a binding precedent - The doctrine of res judicata does not apply, if the case is entertained afresh at the behest of other parties - Precedent.

The question which arose for consideration in the c instant appeals were whether the High Court can pass an order on an application entertained after final disposal of the criminal appeal or even suo motu particularly, in view of the provisions of Section 362 Cr.P.C. and as to whether in exercise of its inherent jurisdiction under D Section 482 Cr.P.C. the High Court can ask a particular investigating agency to investigate a case following a particular procedure through an exceptionally unusual method which is not in consonance with the statutory provisions of Cr.P.C. E The prosecution case was that FIR No.334191 under IPC and Explosive Substances Act, 1908 was registered. In connection with that FIR, one 'BSM' was arrested.

On 19.12.1991, 'BSM' escaped from the custody of the police F for which FIR No.112 under Sections 223 and 224 IPC was registered. The father of 'BSM' filed writ petition before the High Court for production of his son. The State Government explained that 'BSM' had escaped from police custody. The High Court dismissed the aforesaid G writ petition. After completion of the investigation in respect of FIR No.112 of 1991 regarding the escape of 'BSM', a challan was filed before the competent court wherein he was declared a proclaimed offender. After completion of the investigation in FIR No.334 of 1991, the H 544 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R. A Police chargesheeted eight persons. The chargesheet revealed that an attempt was made by terrorists on the life of 'SSS', the then SSP, Chandigarh, by using explosives.

In a thunderous explosion that followed, the Ambassador Car of the SSP, Chandigarh, was blown B high into the air whereafter it fell down ahead at some distance completely shattered. Two persons died and several persons got grievously injured. Three of the accused, namely, 'DPSB, 'PSM' and 'GKM' were subjected to trial. The other co-accused were not traceable and they c were declared proclaimed offenders. The trial court acquitted the three accused giving them benefit of doubt. The High Court dismissed the appeal against the said acquittal. After 20 days of the disposal of the appeal against D acquittal, the High Court again took up the case suo motu on 30.5.2007 and directed the authorities to furnish full details of the proclaimed offenders in respect of the FIR No.334/91 dated 29.8.1991 and the Bench marked the matter "Part Heard".

The SSP, Chandigarh submitted an E affidavit dated 4.8.2007, giving information regarding all the proclaimed offenders in that case. One of them was 'DPSB' who was initially declared as a proclaimed offender. However, he was subsequently arrested and was sentenced to death in a case in which an F assassination attempt was made on the life of 'MSB', the then President, All India Youth Congress, in which several persons were killed and the legs of 'MSB' were amputated. It was also mentioned in the affidavit that 'BSM' had .escaped from police custody and his G whereabouts were not known. Another proclaimed offender was killed in a police encounter. After considering the said affidavit filed by the SSP, the High Court directed the Chandigarh Administration to constitute a Special Investigation Team to enquire into all H aspects of the proclaimed offenders and submit a status STATE OF PUNJAB v.

DAVINDER PAL SINGH BHULLAR & ORS. ETC 545 report. The Hig'1 Court also issued notice to the CBI. It A was during the pendency of these proceedings that the father of 'BSM' whose habeas corpus writ petition had already been dismissed by the High Court in the year 1991, approached the Court by filing a miscellaneous application on 16.9.2007, for issuance of directions to find B out the whereabout of his son. The High Court. directed the CBI to investigate the allegations of father of 'BSM' regarding his missing son and further directed the CBI not to disclose the identity of any of the witnesses to anyone except the High Court and to code the names of c witnesses as witness A, B and C and further to submit periodical status reports.

In the same matter, the Bench entertained another Criminal Miscellaneous Application on 30.10.2007 filed by 'DPSB' (a convict in another case and lodged in Tihar Jail) regarding allegations that his 0 father and maternal uncle had been abducted in the year 1991. The High Court directed the CBI to investigate the allegations made in the complaint filed by 'DPSB'. The CBI after making a preliminary investigation/enquiry on the application, registered an FIR on 2.7.ZOOS under E Sections 120-B, 364, 343, 330, 167 and 193 IPC against 'SSS,' the then SSP and other police officers. The instant appeals were filed on various grounds, including: the judicial bias of the Judge presiding over the Bench by making specific allegations that the officer F named in the order had conducted an enquiry against the Presiding Judge (Mr.

Justice X) on the direction of the Chief Justice of Punjab & Haryana High Court and, thus, the said Judge ought not to have proceeded with the matter, rather should have recused himself from the G case; and that as the judgment in appeal against acquittal was passed by the Court on 11.5.2007 upholding the judgment of acquittal, the Court became functus officio and it had no competence to reopen the case by order dated 30.5.2007. H 546 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R. A Allowing the appeals, the Court 8 HELD: I. JUDICIAL BIAS: There may be a case where allegations may be made against a Judge of having bias/ prejudice at any stage of the proceedings or after the proceedings are over.

There may be some substance in it or it may be made for ulterior purpose or in a pending case to avoid the Bench if a party apprehends that judgment may be delivered against him. Suspicion or bias disables an official from acting as an adjudicator. Further, C if such allegation is made without any substance, it would be disastrous to the system as a whole, for the reason, that it casts doubt upon a Judge who has no personal interest in the outcome of the controversy. This principle is derived from the legal maxim - nemo debet esse judex in causa propria sua. It applies only when the interest D attributed Is such as to render the case his own cause. This principle is required to be observed by all judicial and quasi-Judicial authorities as non-observance thereof, is treated as a violation of the principles of natural justice.

The failure to adhere to this principle creates an E apprehension of bias on the part of the Judge. The question is not whether the Judge is actually biased or, in fact, has really not decided the matter impartially, but whether the circumstances are such as to create a reasonable apprehension in the mind of others that there is a likelihood of bias affecting the decision. The test of real likelihood of bias is whether a reasonable person, in possession of relevant information, would have thought that bias was likely and whether the adjudicator was likely to be disposed to decide the matter only in a particular 3 way. Public policy requires that there should be no doubt about the purity of the adjudication process/ administration of justice.

The Court has to proceed observing the minimal requirements of natural justice, i.e., the Judge has to act fairly and without bias and in good H faith. A judgment which is the result of bias or want of F STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR & ORS. ETC 547 impartiality, is a nullity and the trial "coram non judice". A Therefore, the consequential order, if any, is liable to be quashed. It is evident that the allegations of judicial bias are required to be scrutinised taking into consideration the factual matrix of the case in hand. The court must bear in mind that a mere ground of appearance of bias and not B actual bias is enough to vitiate the judgment/order. Actual proof of prejudice in such a case may make the case of the party concerned stronger, but such a proof is not required.

In fact, what is relevant is the reasonableness of the apprehension in that regard in the mind of the c party. However, once such an apprehension exists, the trial/judgment/order etc. stands vitiated for want of impartiality. Such judgment/order is a nullity and the trial "coram non-judice". [Paras 10, 14, 16, 20] [579-E-F; 581- C-D-F; 582-8-C; 584-H; 585-A-C] D State of West Bengal & Ors. v. Shivananda Pathak & Ors. AIR 1998SC 2050; Bhajan Lal, Chief Minister, Haryana v. Ml s. Jindal Strips Ltd. & Ors. (1994) 6 SCC 19; Rameshwar Bhartia v. The State of Assam AIR 1952 SC 405; Mineral Development Ltd. v. The State of Bihar & Anr. AIR 1960 SC E 468; Meenglas Tea Estate v. The Workmen AIR 1963 SC 1719; The Secretary to the Government, Transport Department, Madras v.

Munuswamy Mudaliar & Ors. AIR 1988 SC 2232; A.U. Kureshi v. High Court of Gujarat & Anr. (2009) 11 SCC 84; Mohd. Yunus Khan v. State of U.P. & Ors. F (2010) 10 SCC 539) Manak Lal, Advocate v. Or. Prem Chand Singhvi & Ors. AIR 1957 SC 425; Vassi/iades v. Vassiliades AIR 1945 PC 38; S. Parthasarathi v. State of Andhra Pradesh AIR 1973 SC 2701; Ranjit Thakur v. Union of India & Ors. AIR 1987 SC 2386; Rupa Ashok Hurra v. Ashok Hurra & Anr. G (2002) 4 SCC 388; Justice P.O. Dinakaran v. Hon'ble Judges Inquiry Committee (2011) 8 SCC 380 - relied on. In re: Linahan, 138 F. 2nd 650 (1943); Public Utilities Commission ofthe District of Columbia v. Franklin S. Pollak H 548 SUPREME COURT REPORTS (2011) 15 (ADDL.) S.C.R. A 343 US 451 (1952) 466; Ex Parte Pinochet Ugarte (No.2) 1999 All ER, 577; Locabail (UK) Ltd. v.

Bayfield Properties Ltd. & Anr. (2000) 1 All ER 65 - referred to. II. DOCTRINE OF WAIVER: B In a given case if a party knows the material facts and is conscious of his legal rights in that matter, but fails to take the plea of bias at the earlier stage of the proceedings, it creates an effective bar of waiver against him. In such facts and circumstances, it would be clear C that the party wanted to take a chance to secure a favourable order from the official/court and· when he found that he was confronted with an unfavourable order, he adopted the device of raising the issue of bias. The issue of bias must be raised by the party at the earliest. D Inaction in every case does not lead to an inference of implied consent or acquiescence.

Waiver is an intentional relinquishment of a right. It involves conscious abandonment of an existing legal right, advantage, benefit, claim or privilege, which except for such a waiver, E a party could have enjoyed. In fact, it is an agreement not to assert a right. There can be no waiver unless the person who is said to have waived, is fully informed as to his rights and with full knowledge about the same, he intentionally abandons them. It is apparent that the issue F of bias should be raised by the party at the earliest, if it is aware of it and knows its right to raise the issue at the earliest, otherwise it would be deemed to have been . waived. However, it is to be kept in mind that acquiescence, being a principle of equity must be made G applicable where a party knowing all the facts of bias etc., surrenders to the authority of the Court/Tribunal without raising any objection.

Acquiescence, in fact, is sitting by, when another is invading the rights. The acquiescence must be such as to lead to the inference of a licence H sufficient to create rights in other party. Needless to say STATE OF PUNJAB v. DAVINDER PAL SINGH BHULLAR & ORS. ETC 549 that question of waiver/acquiescence would arise in a A case provided the person apprehending the bias/ prejudice is a party to the case. The question of waiver would not arise against a person who is not a party to the case as such person has no opportunity to raise the issue of bias. [paras 21-23, 25] [585-F-G; 586-D-G; 587-E- B G] . Mis. Pannalal Binjraj & Ors. v. Union of India & Ors., AIR 1957 SC397; Justice P.O. Dinakaran (2011) 8 SCC 380; Ml s.

Power Control Appliances & Ors. v. Sumeet Machines Pvt. C Ltd. (1994) 2 SCC 448; P. ohn Chandy & Co. (P) Ltd. v. John P. Thomas AIR 2002 SC 2057; Oawsons Bank Ltd. v. Nippon Menkwa Kabushihi Kaish AIR 1935 PC 79; Basheshar Nath v. Commissioner of Income-tax, Delhi and Rajasthan & Anr. AIR 1959 SC 149; Mademsetty Satyanarayana v. G. Yel/oji Rao & Ors., AIR 1965 SC 1405; Associated Hotels of India D Ltd~ v. S. B. Sardar Ranjit Singh AIR 1968 SC 933; Jaswantsingh Mathurasingh & Anr. v. Ahmedabad Municipal Corporation & Ors. (1992) Suppl 1 SCC 5; Mis. Sikkim Subba Associates v. State of Sikkim AIR 2001 SC 2062; Krishna Bahadur v. Mis. Puma Theatre &Ors. AIR 2004 SC E 4282; Municipal Corporation of Greater Bombay v. Dr.

Hakimwadi Tenants' Association & Ors. AIR 1988 SC 233 - relied on. ' Ill. BAR TO REVIEW/ALTER- JUDGMENT F There is no power of review with the Criminal Court after judgment has been rendered. The High Court can alter or review its judgment before it is signed. When an order is passed, it cannot be reviewed. Section 362 G Cr.P.C. is based on an acknowledged principle of law that once a matter is finally disposed of by a Court, the said Court in the absence of a specific statutory provision becomes functus officio and is disentitled to entertain a fresh prayer for any relief unless the former order of final H 550 SUPREME COURT REPORTS [2011] 15 (ADDL.) S.C.R. A disposal is set aside by a Court of competent jurisdiction in a manner prescribed by law.

The Court becomes functus officio the moment the order for disposing of a case is signed. Such an order cannot be altered except to the extent of correcting a clerical or arithmetical error. B There is also no provision for modification of the judgment. Moreover, the prohibition contained in Section 362 Cr.P.C. is absolute; after the judgment is signed, even the High Court in exercise of its inherent power under Section 482 Cr.P.C. has no authority or jurisdiction to c alter/review the same. If a judgment has been pronounced without jurisdiction or in violation of principles of natural justice or where the order has been pronounced without giving an opportunity of being heard to a party affected by it or where an order was obtained 0 by abuse of the process of court which would really amount to its being without jurisdiction, inherent powers can be exercised to recall such order for the reason that in such an eventuality the order becomes a nullity and the provisions of Section 362 Cr.P.C. would not operate.

E In such eventuality, the judgment is manifestly contrary to the audi alteram partem rule of natural justice. The power of recall is different from the power of altering/ reviewing the judgment. However, the party seeking recall/alteration has to establish that it was not at fault. This Court by virtue of Article 137 of the Constitution has F been invested with an express power to review any judgment in Criminal Law and while no such power has been conferred on the High Court, inherent power of the court cannot be exercised for doing that which is specifically prohibited by the Code itself. (paras 26, 27, G 28] (588-A-H; 589-A-B-D]