State of Uttar Pradesh vs Mohammad Nooh

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: supreme-court

Case Number: Civil Appeal No. 130 of 1956

Decision Date: 30 September 1957

Coram: Syed Jaffer Imam, A. K. Sarkar, Das C. J., Venkatarama Aiyar, Bose J.

The judgment concerned the State of Uttar Pradesh versus Mohammad Nooh and was delivered on 30 September 1957 by the Supreme Court of India. The bench comprised Justice Syed Jaffer Imam, Justice A K Sarkar, Justice Bose, Justice Vivian Bose, Justice Vivian Das, Justice Sudhi Ranjan (Chief Justice), Justice Ayyar, Justice T L Venkatarama, Justice Imam and Justice Syed Jaffer. The case was reported as 1958 AIR 86 and 1958 S C R 595. The matters before the Court involved a petition for certiorari and a writ of Art 226 of the Constitution, focusing on the principles governing the availability of an alternative remedy by appeal, the effect of a bar on such remedy, the conduct of a departmental enquiry, and the violation of natural-justice rules when the presiding officer acted as a witness.

The factual background was that a departmental enquiry was conducted against the respondent, who was a Head Constable, by the District Superintendent of Police. During the enquiry the District Superintendent of Police became a witness and gave evidence on two occasions, with his statements recorded by a Deputy Superintendent of Police. After completing the enquiry the District Superintendent found the respondent guilty and, on 20 April 1948, issued an order dismissing him. The respondent appealed the dismissal to the Deputy Inspector General of Police, but the appeal was dismissed on 7 May 1949. He then filed a revision application before the Inspector General of Police, which was also dismissed on 22 April 1950. Consequently, the respondent instituted a writ petition under Art 226 of the Constitution before the High Court, seeking the setting aside of the dismissal order. The High Court held that the rules of natural justice and the principle of fair-play had been ignored, and it quashed the proceeding, setting aside the three separate orders.

The State obtained a certificate of fitness and appealed the High Court’s decision. The Supreme Court, delivering a per curiam opinion, held that the District Superintendent of Police, by acting both as the adjudicator and as a witness, had disqualified himself from presiding over the enquiry. The procedure adopted was contrary to the rules of natural justice and fair-play, rendering the decisions and orders based on that procedure invalid and non-binding. The Court explained that, unlike mandamus, there is no strict rule that a certiorati may lie only where there is no other equally effective remedy; the existence of another adequate remedy may be considered in exercising discretion. If an inferior court or tribunal of first instance acts without jurisdiction, exceeds its jurisdiction, or contravenes natural-justice rules, the superior court may rightly issue a writ of certiorari to correct the error, even if an appeal to another inferior forum was available, whether or not that appeal was pursued. This principle is especially pertinent where departmental tribunals are composed of persons lacking adequate legal training and background, as illustrated by the reference to Janardan Reddy v. The State of Hyderabad (1951) S C R 344.

The Court referred to several authorities, including Postmaster-General, Ex parte Carmichael (1928) I K.B. 291; Rex v. Wandsworth Justices, Ex parte Read (1942) I K.B. 281; Khurshed Modi v. Rent Controller, Bombay, A.R. (1947) Bombay 46; and Assistant Collector of Customs v. Soorajmull Nagarmull (1952) 56 C.W.N. 453. The Court held, speaking for Chief Justice S. R. Das, Justice Venkatarama Ayyar, Justice Jafer Imam and Justice Sarkar, with a dissenting opinion by Justice Bose, that Article 226 of the Constitution did not operate retrospectively and therefore the High Court could not use its powers under that article to set aside a dismissal order that had been passed before the Constitution came into force. The Court rejected the proposition that the dismissal order dated 20 April 1948 merged into the appeal order dated 7 May 1949, and subsequently into the revision order dated 22 April 1950, or that the original dismissal order became final only upon the issuance of the revision order. Instead, the Court affirmed that the original dismissal order remained effective on its own authority. Justice Bose, however, expressed the view that the High Court possessed jurisdiction to annul all the orders because the proceedings should be deemed to remain pending until the revision order was issued on 22 April 1950. The Court also observed that the District Superintendent of Police acted in a judicial capacity and was therefore obligated to follow the principles of natural justice, which he had failed to observe.

The matter before the Court involved Civil Appeal No. 130 of 1956, arising from the judgment and decree dated 10 March 1952, rendered by the Allahabad High Court in Civil Writ No. 737 of 1951. Counsel for the appellant were G. C. Mathur and C. P. Lal, while counsel for the respondent were S. P. Sinha and S. D. Sekhri. The appeal was decided on 30 September 1957. The judgment delivered by Chief Justice Das, together with Justices Venkatarama Ayyar, Jafer Imam and Sarkar, was read by Chief Justice Das, and Justice Bose supplied a separate opinion. Chief Justice Das explained that the appeal was filed under a certificate of fitness granted by the Allahabad High Court pursuant to Articles 132(1) and 133(1)(c) of the Constitution. The appeal challenged the decision of a Division Bench of the High Court pronounced on 10 March 1952, which had set aside the departmental proceedings against the respondent and the orders issued therein. Those orders comprised the dismissal order issued by the District Superintendent of Police on 21 December 1948, the order of the Deputy Inspector General of Police dated 7 June 1949 that dismissed the respondent’s appeal against his dismissal, and the order of the Inspector General of Police dated 22 April 1950 that rejected the respondent’s application for revision. The High Court had also directed that, should any further proceedings be initiated against the respondent, they must be conducted by a presiding officer other than the District Superintendent of Police who had both testified in the case and issued the dismissal order, and that the trial must strictly adhere to the applicable Police Regulations.

In this case the respondent was a member of the Uttar Pradesh Police Force who, at the relevant time, held the rank of Head Constable and was stationed in the District of Fatehpur. In December 1947 the police authorities required sixty candidates from the force to be chosen for training at the Police Training College in Moradabad. The respondent was sent from the District of Fatehpur for selection, but he failed the Hindi examination and therefore was not among the sixty candidates who obtained training slots. Nevertheless, on 8 December 1947 a letter ostensibly issued from Lucknow arrived at the Uttar Pradesh Police Head Office in Allahabad stating that the respondent had been selected for training at the college. Because all sixty vacancies were already filled, the officials at the Head Office began to investigate how such a letter could have been produced. The correspondence was placed before the Inspector General of Police, Lucknow, who pronounced the document to be a forgery. Since the letter appeared to benefit the respondent, the authorities naturally suspected that it might have been prepared by him or at his request.

On 15 March 1948 the respondent was placed under suspension. At that time the governing law for police personnel was section 243 of the Government of India Act, 1935, and the respondent was not covered by sub-section (3) of section 240, which corresponds to article 311(2) of the Constitution. Accordingly the respondent was subject to the Police Act, 1861 (Act V of 1861) and to the regulations made thereunder by the State Government. Pursuant to section 7 of the Police Act, read with the Uttar Pradesh Police Regulations, a departmental enquiry—referred to in the Regulations as a “trial”—was instituted against the respondent. Shri B. N. Bhalla, who was then the District Superintendent of Police for Fatehpur, was deputed to conduct this trial. After hearing the evidence, Shri Bhalla found the respondent guilty and, on 20 April 1948, issued an order dismissing him from service.

The respondent challenged this order by filing an appeal to the Deputy Inspector General of Police under Regulation 508. That appeal was rejected on 7 June 1949. He subsequently filed a revision application to the Inspector General of Police under Regulation 512, but this application was also dismissed on 22 April 1950. Having exhausted all the remedies available under the Police Act and its regulations, the respondent resorted to filing a writ petition under article 226 of the Constitution on 24 February 1951. In that petition he prayed that the file relating to him be called for examination, that his dismissal be set aside, and that he be granted any further relief to which he might be entitled under law. The principal contention articulated in the affidavit supporting the petition, and raised before the High Court, was that Shri B. N. Bhalla, who had acted as the presiding officer of the trial and was required to reach a finding and pass an order, had also given his own evidence at two stages of the proceedings, thereby rendering him disqualified from acting as the judge because he was bound to be biased against the respondent.

In the departmental proceedings the respondent’s own evidence was recorded on two separate occasions, and the court concluded that this circumstance rendered him disqualified from continuing as the presiding officer because, under the facts, he was bound to be biased against the respondent. The State, appearing as the appellant, raised a preliminary objection asserting that the High Court did not have any authority under Article 226 of the Constitution to entertain the challenge to the dismissal order, on the ground that the order had been passed before the Constitution of India came into force. The High Court rejected that objection. It held that the dismissal order issued by the District Superintendent of Police on 20 December 1948 and the dismissal of the appeal by the Deputy Inspector General of Police on 7 June 1949 did not become final until the Inspector General of Police, on 22 April 1950, dismissed the respondent’s revision application filed under Regulation 512. Since this final order was rendered after the Constitution had become operative, Article 226 vested the High Court with the power to issue prerogative writs, and therefore the High Court possessed adequate jurisdiction to exercise the newly conferred powers under that article.

On the merits, the High Court found that the rules of natural justice and the principle of fair play had been ignored. Specifically, it observed that the District Superintendent of Police continued to act as the presiding officer even after he was required to put his own testimony on record against that of another witness. The Court held that, in those circumstances, the presiding officer had become disqualified on the ground of bias, and that the departmental trial conducted by him thereafter was consequently vitiated. Accordingly, the High Court set aside the three orders in question and quashed the departmental proceedings.

The State obtained a certificate of fitness under Articles 132(1) and 133(1)(c) on 4 February 1955 and filed the present appeal before this Court. It is recalled that a forged letter dated 8 December 1947 was suspected to have been manufactured or transmitted by the respondent to further his own interest. The prosecution’s case was that the offending letter had been typed by Shariful Hasan, the typist attached to the office of the Superintendent of Police at Fatehpur, and that the department needed to establish that the respondent enjoyed a friendly relationship with Hasan, who was alleged to have typed the letter. In a preliminary enquiry, and in the presence of Shri B.N. Bhalla, a Head Constable named Mohammad Khalil reportedly remarked that Shariful Hasan was very friendly with the respondent. However, when Mohammad Khalil gave evidence at the departmental trial, he denied having made any such statement. Because of this denial, it became necessary to contradict his testimony by the evidence of the next witness.

Shri B. N. Bhalla was the officer in whose presence the witness had previously stated that Shariful Hasan was very friendly with the respondent. Accordingly, Shri B. N. Bhalla had his testimony recorded by a Deputy Superintendent of Police. This recording was carried out at two separate stages: first, before the charges were framed, and second, after the charges had been framed. The respondent complained that Shri B. N. Bhalla, having become a witness in the case, should not have continued to act as the presiding officer, asserting that his continued role as presiding officer vitiated the trial and rendered his order a nullity. The fact that Shri B. N. Bhalla’s own testimony was recorded in the case was not denied. In fact, the appellant State, opposing the respondent’s writ application, filed an affidavit affirmed by Shri B. N. Bhalla. Paragraph 8 of that affidavit reads 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 thus admitted leave no escape from the conclusion that Shri B. N. Bhalla should not have continued to preside over the trial. The central issue was whether Shariful Hasan was in a friendly relationship with the respondent. Mohammad Khalil, in his trial evidence, denied having made any statement to that effect. Shri B. N. Bhalla, however, testified that Mohammad Khalil, in his presence, had admitted such a friendship. Determining which of the two witnesses – Mohammad Khalil or Shri B. N. Bhalla – should be believed was the duty of the presiding officer.

The Court observed that Shri B. N. Bhalla was plainly ill-suited to perform that duty. By pitting his own evidence against that of Mohammad Khalil, Shri B. N. Bhalla vacated the judge’s seat and entered the arena as a witness, a role that could not objectively be combined with that of the presiding officer. Indeed, Shri B. N. Bhalla himself seemed to recognise this conflict and consequently “bad his own evidence recorded on both the occasions by other high officers.” It was therefore futile to expect that he could, under the circumstances, maintain impartiality. Although it was suggested that other evidence might have established the alleged friendship between Shariful Hasan and the respondent and that Shri B. N. Bhalla’s evidence might not have been decisive, there is no record before the Court to support such a suggestion. The very act of having his own testimony recorded evidences a state of mind that clearly shows bias against the respondent. This bias, coupled with the procedural impropriety of a presiding officer also acting as a witness, undermines the fairness of the proceedings and renders any decision reached under such circumstances invalid and non-binding.

There was no material in the record before the Court to support the suggestion that any other evidence might establish the alleged friendship. Nevertheless, the Court assumed, for the sake of argument, that Shri B N Bhalla had not placed reliance on his own testimony to the detriment of the evidence of Mohammad Khalil – a proposition that was difficult to accept, particularly because Shri Bhalla’s own affidavit, which had been quoted earlier, demonstrated that he had deliberately ensured that his own testimony was entered into the case file. That act, the Court held, unmistakably revealed a state of mind that showed a pronounced bias against the respondent. The Court further observed that such conduct was shocking to any conception of judicial propriety and fairness, and it inevitably deepened the respondent’s perception that the proceedings were unrealistic and futile when conducted in this manner. In agreement with the High Court, the Court found that the principles of natural justice had been wholly discarded and that all standards of fair play had been gravely violated by Shri Bhalla’s continued presiding over the trial. Consequently, any decision reached through such a process, and any order based on that decision, could not be regarded as valid or binding. Counsel for the State then argued that, even if some error, irregularity, or illegality had occurred on the part of Shri Bhalla during the trial, a writ petition under Article 226 of the Constitution was not the appropriate remedy for correcting it. The argument relied on Section 7 of the Police Act 1861, which, subject to rules that the State Government may prescribe, empowers senior police officers to dismiss, suspend or downgrade subordinate officers they consider remiss, negligent or unfit. Moreover, Regulation 508 of the Uttar Pradesh Police Regulations provides an appeal mechanism from the decision of the officer conducting the trial, while Regulation 512 allows an officer whose appeal has been rejected to file a revision application before the next higher authority. The State’s contention was that, because the Police Act and the subordinate regulations created specific appellate and revision forums with full jurisdiction to remedy errors of jurisdiction, procedure and merit made by the trial officer, only those specialised forums were competent to correct such defects. The Court noted that the respondent had indeed filed an appeal and subsequently sought revision before the Inspector General of Police. In both the appeal and the revision proceedings, the respondent either raised the plea concerning the breach of natural-justice rules and fair-play now alleged, or omitted to do so. The Court observed that the respondent was aware of the material facts and, therefore, must be considered conscious of his legal rights; consequently, if he failed to raise the objection before the officer dealing with his appeal or revision, the Court could not entertain the issue for the first time through a writ petition under Article 226.

In this matter, the respondent was required to raise any claim of breach of natural-justice rules either in his appeal or in the subsequent revision petition. The argument presented was that because he did not do so, he could not for the first time invoke the claim in a writ petition under article 226 before the High Court. This position was supported by the precedent set in Manak Lal v. Dr. Prem Chand (1). The reasoning was that if the respondent had included the issue in the grounds of his appeal or revision and had insisted on it during the hearing, the dismissal orders issued by authorities who possessed full powers and jurisdiction would constitute a substantive rejection of the plea. Consequently, no error, irregularity, or illegality would be alleged at the appellate stages, and the High Court would lack jurisdiction to interfere under article 226. The State’s counsel also referred to the decision of this Court in Janardan Reddy v. The State of Hyderabad (1) to bolster the argument.

The Janardan Reddy case involved petitioners who had been convicted by a special tribunal of Hyderabad for murder and other offences and sentenced to death by hanging. Their convictions and sentences were confirmed by the Hyderabad High Court before the Constitution of India became effective on 26 January 1950. After the Constitution commenced, the petitioners filed a petition under article 32 seeking (1) a certiorari writ directing the Government of Hyderabad and the Special Judge to produce the case records and show cause why the convictions and sentences should not be set aside, and (2) a prohibition writ ordering the Government and the Special Judge not to execute the sentences. With the Court’s permission, the petition was later amended to include (3) a habeas corpus writ. Various points were raised, including allegations of procedural illegality such as misjoinder of charges and the method of execution. At page 351, this Court 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.” The Court further noted that the appellate court competent to hear the matter had already rendered its judgment, and the issue was therefore not open to reconsideration through a writ under article 32.

In this case, the Court noted that the appellate bench had rendered its judgment against the petitioners and that the matter, reported in (1) [1951] S.C.R. 344, had been finally decided and therefore could not be reopened in a proceeding under article 32 of the Constitution. Regarding the petitions for writs of certiorari and prohibition, the Court held that those writs were hardly appropriate because they are normally directed against an inferior court. Moreover, when the High Court earlier considered the petitions and affirmed the convictions and sentences of the petitioners, this Court had not yet come into existence, and consequently the High Court could not be said to have been subordinate to this Court. The Court then turned to the remaining issue, namely whether, after the Constitution had commenced, it could exercise the jurisdiction conferred by article 32 and issue a writ of habeas corpus while the petitioners remained detained after the Constitution’s commencement. Counsel for the petitioners argued that they could demonstrate by affidavit that the court which had passed the detention order had acted without jurisdiction or beyond its authority, and that a superior court was free to investigate such a claim. The Court observed that a return stating that the persons were in detention in execution of sentences on indictment on criminal charges provided a sufficient answer to the application for a writ of habeas corpus. Proceeding to pages 366-367, the Court stated: “Assuming, however, that it is open even in such cases to investigate the question of jurisdiction, as was held in In re Authers (1), 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 properly 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 conviction (1) I. L.R. 22 B.D. and thereby decides wrongly that the trial court had the jurisdiction to try and convict, it cannot be said to have acted without jurisdiction, and its order cannot be treated as a nullity. It is true that there is no principle of constructive res judicata in a criminal case, but there is a principle of finality of judgments, which applies to both criminal and civil cases and is implicit in every system, wherein provisions exist for correcting errors on appeal or by revision.” In the first place it must be noted that the two observations quoted from the decision of this Court on

The Court explained that the observations relied upon by the State were made in a case involving a special tribunal that possessed all the characteristics of a court of law. That tribunal was chaired by a judge who had formal legal training and was required to follow the established rules of evidence and procedure. The appeal from the tribunal’s decision was placed before the highest and final court of the State, which is a superior court of record. By contrast, the Court noted that orders issued in a departmental “trial” are rendered by an officer who lacks any legal training, and any appellate or revisionary orders made by his superiors within the same department are, in the words of Harries C.J. in Assistant Collector of Customs v. Soorajmull Nagarmull, merely an appeal “from Caesar to Caesar.” Such departmental orders cannot be trusted with the same confidence as those issued by a properly constituted Special Tribunal, nor can they be equated with the propriety of orders that are reviewed by the Hyderabad High Court, the forum to which the earlier observations were originally directed.

In a further discussion, the Court stressed that there is no rule for certiorari that parallels the rule for mandamus requiring the absence of any other equally effective remedy. It is well settled, as reflected in Halsbury’s Laws of England, Third Edition, Volume Eleven, page 130 and the cases cited therein, that a writ of certiorari may be granted even when a statute provides a right of appeal, provided the necessary grounds are present. The fact that the aggrieved party possesses another adequate remedy can be considered by the superior court when deciding whether to exercise its discretion to issue a certiorari and set aside the proceedings of lower tribunals. Normally, the superior court may decline to intervene until the party has exhausted all other statutory remedies, if such remedies exist. However, the Court clarified that this requirement of exhaustion is a matter of policy, convenience and discretion rather than a strict rule of law. Numerous instances show that certiorari has been granted despite the existence of other satisfactory remedies. For example, in King v. Postmaster General ex parte Carmichael, a certiorari was issued even though the aggrieved party could have appealed. The Court also observed that a superior court will readily grant certiorari where natural justice has been denied in a summary jurisdiction. The authority of Rex v. Wadsworth Justices ex parte Read supports this view, as in that case a man was convicted by a summary court without being afforded an opportunity to be heard.

The Court held that the appropriate remedy for the convicted individual was not a case stated nor an appeal to the quarter-sessions, but an application to the High Court for a certiorari order to set aside and annul the conviction. In the judgment, Viscount Caldecote, C.J., observed that the argument which contended that a certiorari was unavailable because other remedies existed was absurd in the present circumstances. He explained that it would be unreasonable for a convicted person to request a case to be stated, since that would require this Court to decide a pure question of law as to whether the justices were justified in convicting a man without hearing his evidence – a proposition he described as so extravagant that it did not deserve any consideration. Regarding the possibility of an appeal to the quarter-sessions, the Chief Justice admitted that the applicant might have been able to obtain relief had he pursued that avenue, but he saw no reason to deny a certiorari application simply because the applicant chose that route instead of appealing. The Court also referred to the decision in Khurshed Modi v. Rent Controller, Bombay, where it was held that the High Court would not refuse to grant a writ of certiorari solely on the ground that an appeal was available. Although ordinarily the High Court expects a petitioner to exhaust ordinary remedies, the Court emphasized that when a breach of fundamental principles of justice is evident, the High Court must not hesitate to issue a certiorari. Similar reasoning was expressed by Harries, C.J., in Assistant Collector of Customs v. Soorajmull Nagarmul, where he stated that a court may refuse a certiorari if the petitioner enjoys other equally convenient and effective remedies, yet there are circumstances in which a certiorari should be granted even when alternative remedies exist. He explained that when a court or tribunal, entrusted with judicial or quasi-judicial functions, completely discards the rules of natural justice and arrives at a decision contrary to accepted principles of justice, the superior court has both the power and the duty to intervene. The Court also noted that a litigant who has lost the right of appeal or has failed to perfect an appeal through no fault of his own may, in an appropriate case, obtain a review by certiorari, as reflected in Corpus Juris Secundum, volume 14, article 40, page 189. Consequently, the existence of other adequate legal remedies does not, by itself, preclude the issuance of a writ of certiorari, and where the facts warrant, it may be the responsibility of the superior court to grant such a writ to correct errors committed by an inferior court or tribunal that has disregarded essential principles of natural justice.

The Court examined whether a higher court is bound to refuse a writ of certiorari when a petitioner has allowed the period for filing an appeal to expire or has failed to perfect the appeal, for example by not furnishing the security required by the statute, even though the inferior court or tribunal, while exercising judicial or quasi-judicial functions, had discarded every principle of natural justice and every accepted rule of procedure and had arrived at a conclusion that shocked the sense of justice and fair play. The question was whether it should be laid down as an inflexible rule that the superior court must deny the writ merely because the decision of the inferior body had been upheld by another inferior court or tribunal on appeal or revision. The Court cited the decision reported in A.I.R. 1 Bom. 6 (1952) 6 C.W.N. 3 to illustrate the issue.

To answer the question, the Court referred to the case of In re Authers (1), which had been mentioned in Janardan Reddy’s case (2). In that case the manager of a club was convicted under one statute for retailing beer without an excise retail licence. Subsequently he was convicted under another statute for selling intoxicating liquor, namely beer, without a licence. When the later charge was heard, the magistrate treated it as a second offence and imposed the full penalty authorised for a second offence under the latter statute. The manager appealed to the quarter-sessions court, but that appeal was dismissed. He then applied for a writ of habeas corpus, and the King’s Bench Division granted it on the ground that the magistrate could not treat the later charge as a second offence because it was not a second offence under the Act by which he had been convicted the second time. The implication was that any error, irregularity or illegality committed by the magistrate could have been corrected on appeal by the quarter-sessions court, and that, since the appeal had been dismissed, the Queen’s Bench Division could not issue the writ of habeas corpus.

The Court noted that this conclusion was rejected by Hawkins J., who observed: “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.” Relying on the authorities mentioned above, the Court held that there may indeed be cases— and the present case is a direct illustration— where the error, irregularity or illegality concerning jurisdiction or procedure committed by an inferior court or tribunal of first instance is so patent and loudly obtrusive that it leaves an indelible stamp of infirmity on the decision, a stamp that cannot be erased or cured on appeal or revision. The Court referred to the authorities (1) 889 L.R. 22 Q.B.D. 345 and (2) [1951] S.C.R. 344, and concluded that if an inferior court or tribunal of first instance acts wholly without jurisdiction or patently in excess of its authority, the higher court may rightfully exercise its jurisdiction to issue a prerogative writ of certiorari, even though the appeal deadline has passed or the appeal has been dismissed.

In the present matter, it was observed that when a tribunal of first instance either acted without jurisdiction or conducted its proceedings in a manner that flagrantly violated the principles of natural justice and the accepted rules of procedure, the higher court possessed the authority to issue a prerogative writ of certiorari in order to correct such an error. This power could be exercised even if an appeal to another inferior court or tribunal was theoretically available and either had not been taken or, if taken, resulted in a decision that was manifestly a nullity for the reasons previously outlined. The Court further noted that this authority became especially pertinent where the original trial and the subsequent appellate or revisional forums were merely departmental tribunals composed of officials drawn from the departmental hierarchy who lacked adequate legal training, and where such bodies occasionally displayed glaring procedural lapses that came to the Court’s attention. While the higher court would ordinarily decline to interfere by issuing certiorari, it was emphasized that, in a proper case of the kind described, the power existed and could, if warranted, be exercised; no additional commentary was offered on this point.

The learned counsel for the appellant State advanced the argument that the dismissal order issued by the District Superintendent of Police on 20 December 1948 and the subsequent order dismissing the appeal, issued by the Deputy Inspector General of Police on 7 June 1949, were both rendered before the commencement of the Constitution; consequently, the High Court could not invoke its powers under Article 226 to set aside those orders. In response, the respondent contended that the dismissal order of 20 December 1948 did not become final until after the Inspector General of Police dismissed the revision application on 22 April 1950, an event that occurred after the Constitution had come into force; therefore, the High Court possessed ample jurisdiction to quash all three orders. It was accepted that the Constitution operated prospectively and possessed no retrospective effect except where expressly provided. A series of High Court decisions, cited in the judgment under appeal, had held that Articles 226 and 227 did not apply retrospectively, and that transactions already concluded, together with the rights and liabilities that had accrued, remained unaffected. This principle had not been questioned by the High Court in the present case and was not disputed before this Court. Consequently, it was conceded that, had the matter rested solely upon the dismissal order dated 20 December 1948 and the order of 7 June 1949 dismissing the appeal and confirming the dismissal, an application for a writ under Article 226 would not have been permissible.

The Court observed that the High Court could not set aside the dismissal orders because it did not possess writ jurisdiction prior to the commencement of the Constitution. The respondent, however, argued that the dismissal order dated 20 April 1948 merged into the order passed on appeal on 7 June 1949, and that both of those orders subsequently merged into the revision order issued by the Inspector-General of Police on 22 April 1950. The respondent contended that the power to entertain a revision was a component of appellate jurisdiction, and that the legal principle governing the merger of a decree of a court of first instance into a decree on appeal in a civil suit applied with equal force to an order rendered on a revision application. Accordingly, the respondent maintained that the dismissal order of 20 April 1948 became final only when the revision order of 22 April 1950 was passed, and because that revision order was dated after the Constitution had come into force, its validity could be challenged by an application under article 226 of the Constitution.

The Court identified two responses to the respondent’s contention. First, it held that an order of dismissal issued by an officer conducting a departmental inquiry, followed by an order of dismissal of an appeal issued by a higher-ranking officer, and finally an order refusing a revision application by the head of the department, could not be treated in the same manner as decrees passed in a civil suit under the Code of Civil Procedure. The Court emphasized that departmental tribunals, whether at the first instance, on appeal or on revision, were not regular courts staffed by persons trained in law, even though they might possess the formal trappings of a court. Equating these departmental orders with civil-court decrees would be inappropriate and could lead to undesirable consequences, as illustrated by the present case. Secondly, the Court noted that even if the doctrine of merger were accepted, it operated only for limited purposes such as computing the period of limitation for execution of a decree, as articulated in Batuk Nath v. Munni Dei, or for determining the limitation period for filing an application for a final decree in a mortgage suit, as discussed in Jowad Hussain v. Gendan Singh. The Court referred to the observations of Sir Lawrence Jenkins, who explained that under Indian law an original decree is not suspended by the filing of an appeal, nor is its operation interrupted by the presentation of a revision. An appeal or revision may place the decree in jeopardy, but until the decree is reversed or modified it continues to have effect. Consequently, the original dismissal order of 20 April 1948 was not suspended by the respondent’s appeal, nor was its operation halted when the Deputy Inspector-General dismissed the appeal; the order remained operative until it was altered by a subsequent authority.

The Court referred to the judgment of the Privy Council in Juscurn Boid v. Prithichand Lal (3) and observed that, irrespective of theories in other legal systems, Indian law and procedure do not suspend an original decree merely because an appeal is filed, nor does the filing interrupt the decree’s operation; the decree on appeal is simply a dismissal.

There is no provision in Indian law that suggests a decree or order issued by a court or tribunal of first instance becomes final only after all appeals or revisions are exhausted. While the filing of an appeal or revision may place the decree in a state of uncertainty, the decree remains effective until it is expressly reversed or altered by a higher authority.

Applying this principle, the Court held that the original order of dismissal dated 20 April 1948 was not suspended by the respondent’s filing of an appeal, nor was its effect interrupted when the Deputy Inspector-General of Police dismissed that appeal or when the Inspector General dismissed the application for revision. The original dismissal order, assuming it contained no inherent defects, continued to operate on its own strength and did not acquire additional efficacy from the subsequent dismissals of appeal or revision, except for the specific purposes later identified by the Court.

The Court further noted that the dismissal order was issued before the Constitution came into force, and that rights had already accrued to the State as appellant and liabilities had attached to the respondent prior to the Constitution’s commencement. Consequently, the later conferment of jurisdiction and powers on the High Court could not have retrospective effect on those pre-Constitution rights and liabilities.

Even if the dismissal order were deemed a nullity because it violated principles of natural justice, the Court held that the High Court could not be called upon to exercise its newly acquired jurisdiction and powers under Article 226 to correct errors, irregularities, or illegalities committed by an inferior departmental tribunal before the Constitution began. permitting such retrospective correction would remove any limitation on the Court’s backward-looking power and would effectively render Article 226 retroactive, which the Court deemed impermissible. The Court observed that this issue had not been raised before the High Court nor addressed by it.

Because of this limitation, the Court expressed regret but felt constrained to accept the appeal. Accordingly, the appeal was allowed, but the Court declined to order any costs in the circumstances of the case.

Justice Bose, however, dissented. He stated that, with respect, he could not agree with the majority view. He affirmed his agreement with the prior judgment that the case of Janardan Reddy (1) should not be interpreted to mean that a High Court is forever barred from exercising jurisdiction under Article 226 once a competent appellate court has finally decided whether a subordinate court possessed jurisdiction.

In this case the Court stated that, although it accepts the principle that the Constitution is not retrospective and that courts may not invoke any new jurisdiction or powers created by it to reopen decisions and orders that had become final before the Constitution came into force, it could not agree that this principle applied to the present dispute. The Court emphasized that the very wide powers granted to High Courts under Article 226 and to this Court under Article 136 were intended to ensure that justice is done and the rule of law prevails, and therefore no reason existed to impose narrow or ultra-technical restrictions on the exercise of those powers. Justice, the Court said, should be administered in a common-sense, liberal manner and should be based on broad human values rather than on constrained technicalities. The Court then asked what the position would be if the order of 20 April 1948 dismissing the respondent had been issued after the Constitution came into force instead of before it. It considered at what stage the High Court could have entertained a petition under Article 226. The Court observed that, except in exceptional circumstances, courts do not intervene under Article 226 until all normal remedies available to a petitioner have been exhausted, and that the normal remedies in a case of this nature are appeal and revision. While it is true that a High Court may entertain a petition at an earlier stage on a question of jurisdiction or a fundamental issue, it is not bound to do so, and a petition would not be dismissed merely because the petitioner had complied with the usual direction to exhaust ordinary remedies before invoking an extraordinary jurisdiction. Consequently, if the dismissal order had been made after the Constitution, the petitioner would have been expected to pursue the remedies of appeal and revision first and could not have approached the High Court in the ordinary way until those remedies were exhausted; once he reached that stage he could not be turned away on the ground of being out of time because his grievance concerned the original order. The Court noted that the decisions referred to by the learned judge demonstrate that, for these purposes, earlier orders merge into the final one. However, the Court did not rely on technicalities. It was clear that if the dismissal order had been issued after the Constitution, the petitioner would have been entitled to wait for the final order—as he was bound to do in the ordinary course—before approaching the High Court. The Court therefore questioned why the position should be different merely because the petitioner had, before the Constitution, done exactly what he would have been expected to do after it. The final order was passed after the Constitution on 22 April 1950.

After the Constitution came into force on 22 April 1950, the Court observed that if the order had been issued before the Constitution became effective on 26 January 1950, the petitioner would not have possessed any judicial remedy. However, the Constitution revived the nation and granted valuable rights and privileges that did not exist previously. The Court questioned why these rights should be interpreted narrowly and why a proceeding that would still be considered pending if it had arisen entirely after the Constitution could be treated differently merely because a portion of the process began beforehand. The Court found it overly restrictive to reduce the broad constitutional guarantees to narrow procedural questions concerning limitation periods and the merger of decrees. The central inquiry, the Court said, was not whether a merger of orders had occurred, but whether, on a broad and common-sense view, the proceedings could still be regarded as pending for purposes of article 226. If, when the entire process occurs after the Constitution, the proceedings would be viewed as pending—an assertion the Court accepted without doubt—there is no reasonable justification for denying that view simply because a part of the process was initiated before the Constitution.

The Court noted that the principle allowing new constitutional rights to be invoked in pending cases, even to a disruptive effect, has been affirmed by this Court in numerous decisions. In Lachmandas Kewalram Ahuja v. State of Bombay, the Chief Justice, at page 734, explained that although the legislature once possessed the authority to remove ordinary rights such as transfer and revision in criminal matters before the Constitution, any such legislation became invalid after the Constitution because of the fresh rights conferred by article 14. The Court further referenced the decisions in Shree Meenakshi Mills Ltd. v. Sri A. V. Visvanatha Sastri, Dhirendra Kumar Mandal v. The Superintendent and Remembrance of Legal Affairs to the Government of West Bengal, Habeeb Mohamed v. State of Hyderabad, Syed Casim Razvi v. State of Hyderabad, and Keshavan Madhava Menon v. State of Bombay. While these cases are not directly on point, they illustrate the same principle, which the Court invoked in the present matter.

Regarding the merits of the appeal, the Court stated clearly that the appeal must be dismissed. It recalled, following English jurisprudence and the decision in Manak Lal v. Dr. Prem Chand Singhvi, that the principles of natural justice must be observed not only by courts but also by all tribunals and bodies empowered to adjudicate the rights of parties; failure to do so vitiates the decision. The Court affirmed that this principle is now beyond dispute. Finally, the Court indicated that there can be no doubt that the District Superintendent of

In this matter, the police who conducted the departmental trial and pronounced the respondent guilty performed the role of a judicial authority. The Departmental Rules that mandate an inquiry in such cases characterize the proceedings as a trial, and the procedures laid down in those rules therefore demonstrate the judicial nature of the inquiry. Consequently, the first condition for the application of natural-justice principles was satisfied. The next issue was whether the principles of natural justice were disregarded in the proceedings, a question that is settled by existing authority. The facts were that the District Superintendent of Police examined a particular witness during the inquiry, and the witness’s testimony was regarded as a crucial link in the chain of evidence against the respondent. The Superintendent concluded that the witness had become hostile. Whether that finding was correct is immaterial; what followed was his determination that the hostile evidence had to be countered and the gaps in the record filled by introducing other material. No alternative witness could be produced, and the Superintendent, who apparently possessed personal knowledge of the facts, withdrew from the bench, had his own testimony recorded by another officer both before the charge and after the charge, and each time returned to the bench to decide if he should rely on his own testimony rather than on the testimony of the hostile witness whom he believed had committed perjury. The spectacle of a judge repeatedly stepping down, acting as a witness, and then resuming the judicial role to assess his own evidence against that of another witness is startling. While such conduct might amuse an audience of a comic opera, it does not inspire confidence in the fairness and impartiality of departmental trials, nor does it reassure the respondent. Even before the Constitution, departmental trials were created to provide security to civil servants and to inspire public confidence in the treatment of government employees. The essential question in such cases is whether, in the minds of the litigant or the public, a reasonable doubt is raised about the fairness of the administration of justice, as articulated in Manak Lal v. Dr Prem Chand. The Court also referred to an English authority, the House of Lords decision in Frome United Breweries Co. v. Bath Justices, where Lord Atkinson observed that a statute could not have intended to permit a situation in which a member of a tribunal descends from the bench, gives evidence on oath, and then returns to the bench to render a decision possibly based on his own evidence.

The Court observed that the statute could not have been intended to sanction a practice that conflicted with the proper administration of justice. In particular, the Court explained that it would be inconsistent with the administration of justice for a licensing justice, who is a member of the compensation authority, to step down from the bench on a particular occasion, give evidence under oath, and then return to his seat on the bench to render a decision that might be based on his own testimony. The Court stated that the matter is already settled by authority and that no further argument was necessary; even if the matter were not settled, the Court would have had no hesitation in arriving at the same conclusion. The Court then turned to the question of waiver. It noted that if the respondent, aware of his legal rights, had acquiesced to the continuation of the trial despite the defect, he could not later complain about the defect. The Court said it was unaware whether the respondent had been represented by counsel during the enquiry, or, if he was unrepresented, whether he understood that such conduct would invalidate the proceedings. The Court also did not know whether the respondent had protested the defect or raised the issue on appeal or revision, as no such papers had been filed. Nevertheless, the Court observed that the issue of waiver was not raised in the grounds of appeal before this Court, nor was it taken in the appellant’s statement of the case. Because waiver is a factual question, the Court would not permit it to be introduced at this late stage. Consequently, the Court decided to dismiss the appeal.

Accordingly, the Court issued an order in conformity with the opinion of the majority of the judges. The order declared that the appeal was allowed. The decision relied upon the authorities previously cited, namely the 1957 Supreme Court report at pages 425 and 429 and the 1926 House of Lords decision reported in the Appeal Cases. By granting the appeal, the Court affirmed that the procedural defect identified earlier warranted a reversal of the lower authority’s decision and that the relief sought by the appellant was justified.