IMPORTANT POINTS
(1) Judicial bias ¯ 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 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 party ¯ However, where such an apprehension exists, the trial/judgment/order etc. is vitiated for want of impartiality. Such judgment/order is a nullity and the trial “coram non-judice”. (Para 20)
(2) Indian Evidence Act, 1872 ¯ Section 115 ¯ 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, 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. (Para 23)
(3) Criminal Procedure Code, 1973, Section 156 ¯ When CBI inquiry can be ordered ¯ A constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused ¯ However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard ¯ CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities ¯ The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible. (Para 48)
(4) Criminal Procedure Code, 1973, Section 362 ¯ Review/Alter judgment ¯ The criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio ¯ Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law. (Para 30)
(5) Criminal Procedure Code, 1973 ¯ Section 482 ¯ The inherent power under Section 482 Cr.P.C. is intended to prevent the abuse of the process of the Court and to secure the ends of justice ¯ Such power cannot be exercised to do something which is expressly barred under the Cr.P.C. ¯ If any consideration of the facts by way of review is not permissible under the Cr.P.C. , and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision ¯ In case, the High Court in exercise of its inherent powers, issues directions contravening the statutory provisions laying down the procedure of investigation, it would be unwarranted in law. (Paras 31, 38)
(6) Constitution of India, Art 226 ¯ Investigation ¯ The High Court can always issue appropriate direction in exercise of its power under Article 226 of the Constitution at the behest of an aggrieved person, if the court is convinced that the power of investigation has been exercised by an Investigating Officer malafide or the matter is not investigated at all ¯ Even in such a case, the High Court cannot direct the police as to how the investigation is to be conducted but can insist only for the observance of process as provided for in the Cr.P.C. (Para 34)
(7) Constitution of India, Art 226 ¯ Second Writ of Habeas Corpus ¯ Res judicata ¯ A second writ petition for issuing a writ of habeas corpus is barred by principles of res judicata. (Para 62)
(8) Jurisdiction of the Bench ¯ No Judge or a Bench of Judges assumes jurisdiction unless the case is allotted to him or them under the orders of the Chief Justice ¯ The Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge cannot choose as which matter he should entertain and he cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the court may be without jurisdiction and made the Judge coram non-judice. (Paras 42, 43)

Headnote:(a) Indian Penal Code, 1860 ¯ Sections 302, 307, 323, 437 and 120 and Explosive Substance Act, 1908, Sections 3 and 4¯ In case registered under the aforesaid sections out of eight accused persons three accused persons faced trial before the trial Court ,and other five accused persons were not traceable, hence they were declared absconder¯The three accused persons who faced trial Court were acquitted by the trial Court¯ State preferred appeal and challenged the acquittal, the High Court dismissed the appeal ¯ After 20 days of the dismissal of the appeal against acquittal, the High Court again took up the case suo motu and directed the authorities to furnish full details of the proclaimed offenders in respect of the same case and the Bench marked the matter “Part Heard” ¯ Affidavit was filed on behalf of the State, which gave information regarding all proclaimed offenders in the case ¯ After considering the said affidavit filed by State, the High Court directed the Chandigarh Administration to constitute a Special Investigation Team to enquire into all aspects of the proclaimed offenders and submit a status report ¯ The High Court also issued notice to the Central Bureau of Investigation ¯ It was during the pendency of these proceedings, father of the accused declared absconder, 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 for issuance of directions to find out the whereabout of his son accused Balwant Singh ¯ The High Court directed the CBI to investigate the allegations of father of the accused regarding his missing son. The State of Punjab filed the instant appeals before the Supreme Court and challenged the various orders passed by the High Court in the aforesaid case¯ The Supreme Court held the Bench of the High Court was not competent to entertain the said applications and even if the same had been filed in the disposed of appeal, the court could have directed to place the said applications before the Bench dealing with similar petitions ¯ The impugned order dated 5.10.2007 though gives an impression that the High Court was trying to procure the presence of the proclaimed offenders but, in fact, it was to target the police officers, who had conducted the inquiry against Mr. Justice X ¯ There could be no justification for the Bench concerned to entertain applications filed under Section 482 Cr.P.C. as miscellaneous applications in a disposed off appeal ¯ The law requires that the Bench could have passed an appropriate order to place those applications before the Bench hearing 482 Cr.P.C. petitions or place the matters before the Chief Justice for appropriate orders ¯ The writ petition for habeas corpus filed by Mrs. Jagir Kaur in respect of Balwant Singh had been dismissed in 1997 a fresh petition in respect of the same subject matter could not be entertained after 10 years of dismissal of the said writ petition ¯ A second writ petition issuing a writ of habeas corpus is barred by principles of res judicata ¯ The orders impugned are a nullity at least on three grounds, namely, judicial bias; want of jurisdiction by virtue of application of the provisions of Section 362 Cr.P.C. coupled with the principles of constructive res judicata; and the Bench had not been assigned the roster to entertain petitions under Section 482 Cr.P.C ¯ The entire judicial process appears to have been drowned to achieve a motivated result which could not be approved ¯Appeal allowed
        (b) Judicial bias ¯ 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 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 party ¯ However, where such an apprehension exists, the trial/judgment/order etc. is vitiated for want of impartiality. Such judgment/order is a nullity and the trial “coram non-judice”. (Para 20)
        (c) Indian Evidence Act, 1872 ¯ Section 115 ¯ 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, 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. (Para 23)
        (d) Criminal Procedure Code, 1973, Section 156 ¯ When CBI inquiry can be ordered ¯ A constitutional court can direct the CBI to investigate into the case provided the court after examining the allegations in the complaint reaches a conclusion that the complainant could make out prima facie, a case against the accused ¯ However, the person against whom the investigation is sought, is to be impleaded as a party and must be given a reasonable opportunity of being heard ¯ CBI cannot be directed to have a roving inquiry as to whether a person was involved in the alleged unlawful activities ¯ The court can direct CBI investigation only in exceptional circumstances where the court is of the view that the accusation is against a person who by virtue of his post could influence the investigation and it may prejudice the cause of the complainant, and it is necessary so to do in order to do complete justice and make the investigation credible. (Para 48)
        (e) Criminal Procedure Code, 1973, Section 362 ¯ Review/Alter judgment ¯ The criminal justice delivery system does not clothe the court to add or delete any words, except to correct the clerical or arithmetical error as specifically been provided under the statute itself after pronouncement of the judgment as the Judge becomes functus officio ¯ Any mistake or glaring omission is left to be corrected only by the appropriate forum in accordance with law. (Para 30)
        (f) Criminal Procedure Code, 1973 ¯ Section 482 ¯ The inherent power under Section 482 Cr.P.C. is intended to prevent the abuse of the process of the Court and to secure the ends of justice ¯ Such power cannot be exercised to do something which is expressly barred under the Cr.P.C. ¯ If any consideration of the facts by way of review is not permissible under the Cr.P.C. , and is expressly barred, it is not for the Court to exercise its inherent power to reconsider the matter and record a conflicting decision ¯ In case, the High Court in exercise of its inherent powers, issues directions contravening the statutory provisions laying down the procedure of investigation, it would be unwarranted in law. (Paras 31, 38)
        (g) Constitution of India, Art 226 ¯ Investigation ¯ The High Court can always issue appropriate direction in exercise of its power under Article 226 of the Constitution at the behest of an aggrieved person, if the court is convinced that the power of investigation has been exercised by an Investigating Officer malafide or the matter is not investigated at all ¯ Even in such a case, the High Court cannot direct the police as to how the investigation is to be conducted but can insist only for the observance of process as provided for in the Cr.P.C. (Para 34)
        (h) Constitution of India, Art 226 ¯ Second Writ of Habeas Corpus ¯ Res judicata ¯ A second writ petition for issuing a writ of habeas corpus is barred by principles of res judicata. (Para 62)
        (i) Jurisdiction of the Bench ¯ No Judge or a Bench of Judges assumes jurisdiction unless the case is allotted to him or them under the orders of the Chief Justice ¯ The Bench gets jurisdiction from the assignment made by the Chief Justice and the Judge cannot choose as which matter he should entertain and he cannot entertain a petition in respect of which jurisdiction has not been assigned to him by the Chief Justice as the order passed by the court may be without jurisdiction and made the Judge coram non-judice. (Paras 42, 43)
       Facts of the case
        On FIR No. 334/91 registered under Sections 302, 307, 323, 437 and 120 IPC and Sections 3 and 4 of Explosive Substance Act, 1908, investigating agency after investigation filed chage-sheet against eight accused persons ¯ Three accused namely, Davinder Pal Singh Bhullar alias Master, Partap Singh Maan and Gursharan Kaur Maan were subjected to trial ¯ The other co-accused namely, Navneet Singh, Manjit Singh, Manmohan Jit Singh, Gurjant Singh and Balwant Singh were not traceable ¯ They were declared proclaimed offenders ¯ Trial Court acquitted the three accused persons giving them benefit of doubt ¯ State preferred appeal and challenged the acquittal, the High Court dismissed the appeal on 11.5.2007 ¯ After 20 days of the dismissal of the appeal against 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” ¯ Affidavit was filed on behalf of the State, which gave information regarding all proclaimed offenders in the case ¯ After considering the said affidavit filed by State, the High Court on 22.8.2007 directed the Chandigarh Administration to constitute a Special Investigation Team to enquire into all aspects of the proclaimed offenders and submit a status report ¯ The High Court also issued notice to the Central Bureau of Investigation ¯ It was during the pendency of these proceedings, father of the accused Balwant Singh, 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 out the whereabout of his son Balwant Singh ¯ The High Court on 5.10.2007, directed the CBI to investigate the allegations of father of Balwant Singh 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¯The State of Punjab Filed the instant appeals before the Supreme Court and challenged the various orders passed by the High Court in the aforesaid matters.
       Findings
        The Supreme Court held that the Bench of the High Court was not competent to entertain the said applications and even if the same had been filed in the disposed of appeal, the court could have directed to place the said applications before the Bench dealing with similar petitions ¯ Information in respect of one of the proclaimed offenders was with the court ¯ The judgment of the Trial Court was before the High Court under challenge ¯ Thus, the High Court could have taken note of the proclaimed offender and there was no new material that came before the High Court on the basis of which proceedings could be revived ¯ The charge sheet in the Trial Court itself revealed that two persons had died ¯ The impugned order dated 5.10.2007 though gives an impression that the High Court was trying to procure the presence of the proclaimed offenders but, in fact, it was to target the police officers, who had conducted the inquiry against Mr. Justice X ¯ There could be no justification for the Bench concerned to entertain applications filed under Section 482 Cr.P.C. as miscellaneous applications in a disposed of appeal ¯ The law requires that the Bench could have passed an appropriate order to place those applications before the Bench hearing 482 Cr.P.C. petitions or place the matters before the Chief Justice for appropriate orders ¯ In respect of such missing persons earlier habeas corpus petitions had been filed by the persons concerned in 1991 and 1997 which had been dealt with by the courts in accordance with law ¯ The writ petition for habeas corpus filed by Mrs. Jagir Kaur in respect of Balwant Singh Bhullar had been dismissed in 1997 only on the ground of delay ¯ A fresh petition in respect of the same subject matter could not be entertained after 10 years of dismissal of the said writ petition ¯ A second writ petition issuing a writ of habeas corpus is barred by principles of res judicata ¯ A subsequent petition of habeas corpus on fresh ground which were not taken in the earlier petition for the same relief may be permissible ¯ Documents on record showed Shri Sumedh Singh Saini, IPS had conducted the enquiry in 2002 against Mr. Justice X on the direction of the Chief Justice of the Punjab and Haryana High Court on the alleged appointment of certain judicial/executive officers in Punjab through Shri Ravi Sandhu, Chairman of the Public Service Commission ¯ Shri S.S. Saini had filed reports against Mr. Justice X ¯ The Chief Justice of Punjab and Haryana High Court confronted Mr. Justice X with the said reports ¯ On the basis of the said reports, the Chief Justice of the High Court submitted his report to the Chief Justice of India, on the basis of which a Committee to investigate the matter further was appointed ¯ This Committee even examined one Superintendent of Police of the intelligence wing who had worked directly under Shri S.S. Saini while conducting the enquiry ¯ The orders impugned are a nullity at least on three grounds, namely, judicial bias; want of jurisdiction by virtue of application of the provisions of Section 362 Cr.P.C., coupled with the principles of constructive res judicata; and the Bench had not been assigned the roster to entertain petitions under Section 482 Cr.P.C ¯ The entire judicial process appears to have been drowned to achieve a motivated result which could not be approved ¯ The error in the impugned orders of the High Court transgresses judicious discretion ¯ The process adopted by the High Court led to greater injustice than securing the ends of justice ¯ The path charted by the High Court inevitably reflects a biased approach.

Judgement Key Points

The judgment in the case of State of Punjab v. Davinder Singh Bhullar primarily addresses issues related to judicial bias, the jurisdiction of courts, and the proper exercise of inherent powers under the law. The Court emphasized that allegations of judicial bias must be examined in the context of the factual matrix, and that even the appearance of bias, without proof of actual prejudice, can be sufficient to invalidate a judgment or order. The Court clarified that such an apprehension of bias, if reasonable, renders the judicial process void, making the order a nullity.

Furthermore, the Court discussed that the doctrine of waiver applies when a party with knowledge of potential bias does not raise the objection at the earliest opportunity, and that raising such objections belatedly can amount to waiver. It reinforced that objections to bias must be raised promptly and by parties who are properly impleaded and given the opportunity to contest.

The judgment also reaffirmed that once a court has passed a final order, particularly under a statute that expressly limits the court's jurisdiction to review or alter its judgments, subsequent proceedings or attempts to revisit the order are barred. The Court held that the powers under statutory provisions and inherent jurisdiction are limited and cannot be exercised to revisit or modify final judgments unless there are exceptional circumstances such as abuse of process or miscarriage of justice.

In relation to the jurisdiction of courts, the Court underscored that a Judge or a Bench can only assume jurisdiction if the case has been properly assigned by the Chief Justice, and that any deviation from this process renders the order coram non-judice. It stressed that courts must adhere strictly to procedural rules to maintain judicial discipline and public confidence.

The Court also discussed the scope and limits of the High Court's powers under constitutional and procedural provisions, including the exercise of jurisdiction under Article 226 and Section 482 of the Criminal Procedure Code. It clarified that such powers are meant to prevent abuse of process and secure justice, but cannot be used to bypass statutory procedures or to conduct roving inquiries without proper basis.

Finally, the Court concluded that the orders passed by the High Court in this case, which involved entertaining applications after final disposal and expanding the scope of investigation improperly, were not sustainable. These orders were found to be made without proper jurisdiction and in a manner that undermined the rule of law. As a result, the Court declared the impugned orders null and void, quashed the FIR registered by the investigating agency, and emphasized that the parties involved could pursue fresh proceedings if permissible by law.

JUDGMENT

Dr. B.S. Chauhan, J.

1. Leave granted in the Special Leave Petitions filed by Shri Sumedh Singh Saini.

2. These appeals have been preferred against the orders dated 30.5.2007, 22.8.2007, 5.10.2007 and 4.7.2008 in Crl. Misc. No. 152-MA of 2007; order dated 19.9.2007 in Crl. Misc. No. 86286 of 2007 in Crl. Misc. No. 152-MA of 2007; and orders dated 2.11.2007 and 6.11.2007 in Crl. Misc. No. 93535 of 2007 in Crl. Misc. No. 152-MA of 2007 passed by the High Court of Punjab and Haryana at Chandigarh. For the sake of convenience of disposal of the appeals, we would refer only to the criminal appeals filed by the State.

3. The Appeals herein raise peculiar substantial questions of law as to 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 of the Code of Criminal Procedure, 1973 (hereinafter called Cr.P.C.) and as to whether in exercise of its inherent jurisdiction under 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.

4. FACTS:

(A) An FIR No.334/91 under Sections 302, 307, 323, 437 and 120-B of the Indian Penal Code, 1860 (hereinafter called the ‘IPC’) and Sections 3 & 4 of Explosive Substances Act, 1908 was registered at Police Station, Sector 17, Chandigarh. In connection with an FIR dated 13.12.1991, one Balwant Singh Multani was arrested in a case in respect of the FIR No.440 registered under Sections 212 and 216 IPC, Sections 25/54/69 of Arms Act 1959, and Sections 3 & 5 of the Terrorist and Disruptive Activities (Prevention) Act, 1987 (hereinafter called as ‘TADA Act’) at Police Station, Sector-17, Chandigarh. On 19.12.1991, the said accused Balwant Singh Multani escaped from the custody of the police from Police Station Qadian (Punjab) for which FIR No.112 dated 19.12.1991 under Sections 223 and 224 IPC was registered at Police Station Qadian (Punjab). Shri Darshan Singh Multani, father of Balwant Singh Multani filed Criminal Writ Petition No.1188 of 1991 before the High Court of Punjab & Haryana under Article 226 of the Constitution of India, 1950, (hereinafter called “Constitution”), for production of the said accused Balwant Singh Multani. The State Government filed a reply to the same, explaining that the said accused had escaped from police custody and after considering the case, the High Court dismissed the Habeas Corpus Petition. After completion of the investigation in respect of FIR No.112 of 1991 regarding the escape of Balwant Singh Multani, a challan was filed before the competent court wherein he was declared a proclaimed offender vide order dated 12.5.1993. After completion of the investigation in FIR No.334 of 1991 dated 29.8.1991, the Police chargesheeted eight persons. The chargesheet revealed that an attempt was made by terrorists on the life of the then SSP, Chandigarh, by using explosives. In a thunderous explosion that followed, the Ambassador Car of the SSP, Chandigarh, was blown high into the air whereafter it fell down ahead at some distance completely shattered. HC Amin Chand, the driver of the car and ASI Lalu Ram, PSO, died on the spot. ASI Ramesh Lal, PSO, and CRPF jawans in the Escort vehicle were grievously injured. The bomb explosion was carried out by the terrorists from a parked car in order to kill the SSP, UT, Chandigarh, and other police personnel and this explosion was conducted with explosives operated with a remote control, because of which, two police personnel died on the spot and many others were grievously injured. Three of the accused, namely, Davinder Pal Singh Bhullar alias Master, Partap Singh Maan and Gursharan Kaur Maan were subjected to trial. The other co-accused namely, Navneet Singh, Manjit Singh, Manmohan Jit Singh, Gurjant Singh and Balwant

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2011 Supreme(SC) 1128

Cases Referred (88)