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PETITIONER: GOKARAJU RANGARAJU ETC.

       Vs.

RESPONDENT: STATE OF ANDHRA PRADESH

DATE OF JUDGMENT15/04/1981

BENCH: REDDY, O. CHINNAPPA (J) BENCH: REDDY, O. CHINNAPPA (J) SEN, A.P. (J) ISLAM, BAHARUL (J)

CITATION:  1981 AIR 1473            1981 SCR  (3) 474  1981 SCC  (3) 132        1981 SCALE  (1)706  CITATOR INFO :  R          1983 SC 194  (51)  R          1987 SC 454  (10)  R          1987 SC1748  (18,19)  R          1987 SC2111  (12)  R          1988 SC 162  (20)  RF         1990 SC1480  (76)

ACT:      De facto  doctrine-Nature and  scope of-Appointment  of District  Judge  declared  void-Judgment  rendered  by  him, whether becomes void.      Interpretation of  Statutes-Abundans cautela  non nocet when   applied-Legislature,    whether   makes   superfluous legislation.

HEADNOTE:      The appellants  in both  the appeals  were convicted of certain offences  by two  District Judges.’  By the time the appeals  went   up  for  hearing  to  the  High  Court,  the appointment of  the two  District Judges was quashed by this Court  as   being  in   violation  of  Article  233  of  the Constitution.      The appellants  contended before  the High  Court  that having regard to the fact that the Supreme Court had quashed the appointment  of District  Judges, the judgments rendered by them  in these  two cases  became void.  The High  Court, rejecting the  contention,  held  that  since  the  District Judges held  office under  lawful authority,  the  judgments rendered by  them during  the tenure  of their  office  were valid and  that in  any event  the validity of the judgments could not be questioned in collateral proceedings.      In appeal  to this Court it was contended that trial by a Sessions  Judge appointed  in violation of Article 233 was not a  trial by  a Sessions Judge duly appointed to exercise jurisdiction in a Court of Sessions under section 9, Cr.P.C. and that  the  appellants’  liberty  was  being  taken  away otherwise than  in accordance with the procedure established by law  and that the Constitution (Twentieth Amendment) Act, 1966 would  be a  surpluses if  the de  facto  doctrine  was applied  to  judgments  rendered  by  persons  appointed  as District Judges contrary to the provisions of Article 233 of

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the Constitution      Dismissing the appeals, ^      HELD: The  two Judges who gave the judgments in the two cases were  not usurpers  or intruders  but were persons who discharged the  functions and  duties of Judges under colour of lawful  authority. So  long  as  an  office  is  validity created it  matters not  that the incumbent was not validity appointed. A  person appointed  to a  post of Sessions Judge would be exercising jurisdiction in the 475 Court of Session and his judgments and orders would be those of that court and would continue to be valid notwithstanding that  his  appointment  to  such  court  might  be  declared invalid. On  that account  alone it  cannot be said that the procedure prescribed by law had not been followed. [487 E-F]      Milward v.  Thatsher [1787]  2 T. R. 81 @ 87, Seaddling v. Lorant  [1851] 3 HLC 418, re. James (An Insolvent) [1977] 2 W.L.R.  1, Norton  v. Shelby  Counrty [1886] 118 US 425-30 Law Ed. 178; referred to.      The doctrine  of de facto envisages that acts permitted de facto  by the  officers within the scope of their assumed official authority,  in the  interest of the public or third persons and  not for  their own  benefit, are  generally  as valid and  binding as  if they  were the acts of officers de jure [478 H]      The de  facto doctrine  is founded on good sense, sound policy  and   practical  expedience.  It  is  aimed  at  the prevention of  public and private mischief and protection of public and private interest. It avoids endless confusion and needless chaos.  An illegal appointment may be set aside and a proper  appointment may  be made but the acts of those who hold office de facto are not so easily undone. They may have lasting repercussions  and confusing sequels if attempted to be undone. [479 B]      Pulin Behari  v. King Emperor [1912] 15 Cal Law Journal 517 @ 574, Immedisetti Ramkrishnaiah Sons v. State of Andhra Pradesh and Anr AIR 1976 A.P 193; referred to.      A defective  appointment of  a de facto judge cannot be permitted to  be questioned  in  a  litigation  between  two private litigants.  If this  were not so, so soon as a Judge pronounces a  judgment litigation  may be  commenced  for  a declaration that the judgment was void because the judge was no judge.  To question  a Judge’s  appointment in  an appeal against his judgment is such a collateral attack. [485 B-C]      The de  facto doctrine saves acts done by a Judge whose appointment  has   later  been  declared  void,  from  being invalidated. The  doctrine is  recognised in  Article  71(2) (which declares  that acts  done by  the  President  in  the exercise of his powers shall not be invalidated by reason of the election  being declared void) and section 107(2) of the Representation of  the People Act, 1951 (which provides that acts of  a reason participating as member of Parliament or a State Legislature shall not be declared invalid by reason of his election  being declared void). The doctrine, therefore, is no stranger to the Constitution and the laws. [485 E-F]      The Constitution  (Twentieth Amendment) Act, 1966 is an instance where  the de  facto doctrine was applied to remove and taint of illegality being attributed to the judgments or orders passed  by  District  Judges  appointed  before  1966 otherwise than in accordance with the provisions of Articles 233 and  235 of the Constitution and which appointments were declared invalid  by this Court in Chandra Mohan v. State of U.P., [1967] 1 SCR 77. [485 H] 476

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    It is  not a  necessary inference  from  the  Twentieth Amendment That but for that amendment the judgments, decrees etc. Of  those District  Judges would  have been  void. As a general  rule   Parliament  may  be  presumed  not  to  make superfluous legislation.  But  This  presumption  is  not  a strong presumption  in that  it  is  not  uncommon  to  find statutes containing  provisions introduced  because  abundas cautela non nocet (there is no harm in being cautious). [486 C-D]      The statutory  reiteration of the law, a clear judicial pronouncement on  a subject  notwithstanding, only  leads to the inference  that The  statute making body, though mindful of the real state of the law, was acting under the influence of excessive caution. The Constitution (Twentieth Amendment) Act, 1966 is one such instance. [486 E-F]

JUDGMENT:      CRIMINAL APPELLATE  JURISDICTION: Criminal  Appeal  No. 234 of 1976.      Appeal by  special leave  from the  judgment and  order dated the  5th December,  1975 of  the Andhra  Pradesh  High Court in  Criminal Revision  Case No.  816 of 1974 (Criminal Revision Petition No. 732 of 1974).                             AND      Criminal Appeal Nos. 315 and 316 of 1976.      Appeals by  special leave  from the  judgment and order dated the  12th April, 1976 of the Andhra Pradesh High Court in Criminal Appeal Nos. 31 O & 311 of 1975.      P. Govindan  Nair and A. Subba Rao for the Appellant in Crl. A. No. 234/76.      M. N.  Phadke, and  B. Kanta  Rao for  the Appellant in Crl. A. Nos.315 & 316 of 1976.      G. N. Rao for the Respondent in all the appeals.      The Judgment of the Court was delivered by      CHINNAPPA  REDDY,   J.  What   is  the  effect  of  the declaration by  the Supreme Court that the appointment of an Additional  Sessions   Judge  was   invalid   on   judgments pronounced by  the Judge  prior to  such declaration  is the question for  consideration in  these criminal  appeals. The question may  seem to  be short  and simple but it cannot be answered without  enquiry and  research. An answer, on first impression, may be ’a judgment by a judge who is not a judge is no  judgment’’ a  simple, sophisticated  answer.  But  it appears 477 second thoughts  are necessary.  What is to happen to titles settled, declarations  made, rules  issued, injunctions  and decrees granted  and even  executed ?  What is  to happen to sentences imposed  ? Are  convicted offenders  to be  set at liberty and to be tried again ’! Are acquitted accused to be arrested  and   tried  again  ?  Public  Policy  is  clearly involved. And, in the tangled web of human affairs, law must recognise some  consequences as  relevant, not on grounds of pure logic  but for reasons of practical necessity. To clear the confusion and settle the chaos, judges have invented the de facto  doctrine, which  we shall  presently  examine.  de facto doctrine  is thus  a doctrine  of necessity and public policy.      Crl. A.  No. 234  of 1976  arises out  of a  proceeding under S.6A  of the  Essential Commodities  Act, by which the District Revenue  officer  West  Godavari,  Andhra  Pradesh, ordered the confiscation of Rs. 203.74 kgs. Of paddy and Rs. 302.25 kgs.  of rice.  The  appellant,  Gokaraju  Rangaraju,

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preferred an appeal under S. 6C of the Essential Commodities Act to  the Court  of Session, West Godavari. The appeal was heard by  Shri G. Anjappa, Additional Sessions Judge and was rejected.  The   appellant  preferred  a  Criminal  Revision Petition before  the High  Court of Andhra Pradesh. Criminal Appeal Nos.  315 and  316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division’ The case was heard and the judgment was pronounced by Shri Raman Raj  Saxena,  II  Additional  Sessions  Judge,  Guntur.  The convicted accused  preferred appeals  to the  High Court  of Andhra Pradesh. By the time the Criminal Revision case filed by Gokaraju  Rangaraju and the Criminal Appeals filed by the appellants in  Crl. Appeals Nos. 315 and 316 of 1976 came up for hearing  before the  High Court  of Andhra Pradesh, this Court by  its judgment  dated 2nd September 1975 quashed the appointment of  Shri G.  Anjappa, Shri  Raman Raj Saxena and two others  as District  Judges Grade II, on the ground that their appointment was in violation of the provisions of Art. 233 of the Constitution. Thereupon a point was raised in the Criminal Revision  case as  well as  in the Criminal Appeals that the  judgments rendered  by Shri Anjappa and Shri Raman Raj Saxena  were void and required to be set aside. The High Court overruled  the point  raised by the present appellants and held  that though  the appointment  of Shri  Anjappa and Shri Raman Raj Saxena as District Judges Gr. II was invalid, yet they  were not  mere usurpers  but had held office under lawful H  authority and therefore, the judgments rendered by them were  valid and  could not  be questioned in collateral proceedings. The present 478 appeals have been preferred by special leave granted by this Court. In  Criminal  Appeals  Nos.  315  and  316  of  1976, however, the special leave granted by this Court was limited by the  order granting  leave to  the question  whether  the judgments rendered  by Sessions Judges were void where their appointment as  Sessions Judges  was  subsequently  declared illegal.      Shri Govindan  Nayar learned counsel for the appellants in Crl.  A. No. 234 of 1976 and Shri Phadke, learned counsel for the  appellants in  Crl. Appeals Nos. 315 & 316 of 1976, argued before us that the judgments rendered by Shri Anjappa and Shri  Raman Raj Saxena were void as they were never duly appointed as District Judges. It was urged that there was no need for them to question the appointment of Shri Anjappa or Shri Kaman  Raj Saxena as their appointment had already been quashed by  the Supreme Court. It was said that the de facto doctrine was  based on  public policy and necessity and that in the  present case  neither  public  policy  or  necessity required that  the judgments  should not  be set  aside.  No inconvenience would be caused by ordering a rehearing of the appeals or  a retrial of the accused. It was also urged that the attack,  if any,  on the appointment of Shri Anjappa and Shri Raman  Raj was  not collateral attack. It was submitted that a question of jurisdiction could be raised at any stage in a  criminal case  and a trial by a Sessions Judge who was appointed in  violation of  Art. 233  was not  a trial  by a Sessions Judge  duly appointed to exercise jurisdiction in a Court of  Session  under  S.  9  of  the  Code  of  Criminal Procedure. It  was argued that the de facto doctrine was not an absolute doctrine. It was subject to certain limitations. One such  limitation was  that imposed  by Art.  233 of  the Constitution.  A   person  appointed  as  a  District  Judge contrary to  the provisions of Art. 233 was no judge and his judgments were  no judgments. It was submitted that the 20th Amendment of  the Constitution  would be a surplusage if the

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de facto doctrine was to be applied to judgments rendered by persons  appointed   as  District  Judges  contrary  to  the provisions of  Art. 233  of the  Constitution. It  was  also suggested that the Fundamental Right of the appellants under Art. 21  of the  Constitution was  violated as their liberty was being  taken away  otherwise than in accordance with the procedure established by law.      We are  unable to  agree with  the submissions  of  the learned counsel for the appellants. The doctrine is now well established  that   "the  acts  of  the  officers  de  facto performed by them within the scope of their assumed official authority, in the interest of the public 479 or  third  persons  and  not  for  their  own  benefit,  are generally as  valid and binding, as if they were the acts of officers de  jure" (Pulin Behari v. King Emperor). As one of us had  occasion to  point  out  earlier  "the  doctrine  is founded  on   good  sense,   sound  policy   and   practical expedience. It  is aimed  at the  prevention of  public  and private mischief  and the  protection of  public and private interest. It avoids endless confusion and needless chaos. An illegal  appointment   may  be   set  aside   and  a  proper appointment may  be made,  but the  acts of  those who  hold office de  facto are  not so  easily  undone  and  may  have lasting repercussions  and confusing sequels if attempted to be undone.  Hence the  de facto  doctrine" (vide Immedisetti Ramkriashnaiah Sons v. State of Andhra Pradesh and Anr.      In Pulin  Behari v.  King Emperor, (Supra) Sir Ashutosh Mukerjee J.  noticed that  in England  the de facto doctrine was recognised  from the  earliest times.  The first  of the reported  cases   where  the   doctrine  received   judicial recognition was  the case  of Abbe  of Fountaine  decided in 1431. Sir  Ashutosh Mookerjee  noticed that even by 1431 the de facto doctrine appeared to be quite well known and, after 1431, the doctrine was again and again reiterated by English Judges.      In Milward v. Thatcher, Buller J. said:           "The question whether the judges below be properly      judges  or   not.  can   never  be  determined,  it  is      sufficient if they be judges de facto. Suppose a person      were even  criminally convicted  in a  Court of Record,      and the  Recorder of  such Court were not duly elected,      the conviction would still be good in law, he being the      judge de facto".      In Seaddling  v. Lorant,  the question  arose whether a rate for  the relief of the poor was rendered invalid by the circumstance that  some of  the vestry  men who made it were vestry men  de facto  and not  de jure.  The Lord Chancellor observed as follows:           With regard  to the  competency of the vestry men,      who were  vestry men  de facto,  but not  vestry men de      jure, to make the rate, your Lordships will see at once      the impor- 480      tance of  that objection,  when you  consider how  many      public officers  and persons there are who were charged      with very  important duties,  and whose  title  to  the      office on  the part of the public cannot be ascertained      at the time. You will at once see to what it would lead      if the  validity of  their acts,  when in  such office,      depended upon the propriety of their election. It might      tend, if doubts were cast upon them, to consequences of      the most  destructive kind. It would create uncertainty      with respect to the obedience to public officers and it      might also  lead to  persons, instead  of resorting  to

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    ordinary legal  remedies to  set right anything done by      the officers, taking the law into their own hands".      Some interesting observations were made by the Court of Appeal in  England in  re James  (An Insolvent).  Though the learned Judges  constituting the Court of Appeal differed on the principal question that arose before them namely whether "the High  Court of Rhodesia" was a British Court, there did not appear  to be  any difference of opinion on the question of the  effect of  the invalidity  of the  appointment of  a judge on  the judgments  pronounced by  him. Lord Denning M. R., characteristically,  said: "He  sits in  the seat  of  a judge. He wears the robes of a judge. He holds the office of a judge. May be he was not validly appointed. But, still, he holds the  office. It  is the  office that  matters, not the incumbent .......  so long  as the  man holds the office and exercises it duly and in accordance with law, his orders are not a  nullity. If  they are  erroneous they may be upset on appeal. But  if not  erroneous they  should be upheld". Lord Denning then  proceeded to refer to the State of Connecticut v. Carroll  decided by  the Supreme Court of Connecticut, Re Aldridge decided  by the  Court of Appeal in New Zealand and Norton v. Shelby County decided by the United States Supreme Court. Observations made in the last case were extracted and they were:           "Where an  office exists under the law, it matters      not how  the appointment  of the  incumbent is made, so      far as  the validity  of his  acts are concerned. It is      enough that  he is  clothed with  the insignia  of  the      office, and  exercises its  powers and  functions.. The      official acts  of such  persons are recognised as valid      on grounds  of public policy, and for the protection of      those having official business to transact." 481      Scarman LJ  who  differed  from  Lord  Denning  on  the question whether  the High  Court of  Rhodesia was a British Court appeared  to approve the view of Lord Denning M. R. in regard to the de facto doctrine. He said:           "He  (Lord   Denning)  invokes   the  doctrine  of      recognition of  the de facto judge, and the doctrine of      implied mandate  or necessity. I agree with much of the      thinking that lies behind his judgment. I do think that      in an  appropriate case  our courts  will recognise the      validity of judicial acts, even though they be the acts      of a  judge not  lawfully  appointed  or  derive  their      authority from  an unlawful  government. But  it  is  a      fallacy  to   conclude   that,   because   in   certain      circumstances our  Courts would  recognise as valid the      judicial acts of an unlawful court or a de facto judge,      therefore, the  Court  thus  recognised  is  a  British      Court".      The de facto doctrine has received judicial recognition in the  United States  of America  also. In State v. Gardner (Cases on  Constitutional Law by Mc. Gonvey and Howard Third Edition 102) the question arose whether the offer of a bribe to   a    City   Commissioner    whose    appointment    was unconstitutional was an offence. Broadbury, J. said.           "We  think   that  principle   of  public  policy,      declared by  the English  Courts three  centuries  ago,      which gave validity to the official acts of persons who      intruded themselves  into an  office to  which they had      not been  legally appointed,  is as  applicable to  the      conditions now presented as they were to the conditions      that then  confronted the English Judiciary. We are not      required to  find a  name by  which officers  are to be      known,  who   have  acted  under  a  statute  that  has

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    subsequently been  declared unconstitutional, though we      think such  officers might  aptly be  called  de  facto      officers."      In Norton  v. Shelby  Country, Field,  J., observed  as follows:           "The doctrine  which gives  validity  to  acts  of      officers de  facto whatever defects there may be in the      legality of  their appointment  or election  is founded      upon considerations  of policy  and necessity,  for the      protection of the pub- 482      lic and  individuals whose  interests may  be  affected      thereby. Offices  are created  for the  benefit of  the      public,  and  private  parties  are  not  permitted  to      inquire into  the title  of persons  clothed  with  the      evidence of  such offices and in apparent possession of      their powers  and functions.  For the  good  order  and      peace of society their authority is to be respected and      obeyed until  in some  regular mode  prescribed by  law      their title  is  investigated  and  determined.  It  is      manifest that  endless confusion  would result,  if  in      every proceeding before such officers their title could      be called in question."      In  Cooley’s   ’Constitutional   Limitations’,   Eighth Edition, Volume II p. 1 355, it is said,           "An officer  de facto is one who by some colour or      right is  in possession  of an  office and for the time      being performs  its duties  with  public  acquiescence,      though having no right in fact. His colour of right may      come from  an election  or  appointment  made  by  some      officer or  body having  colourable but no actual right      to  make  it;  or  made  in  such  disregard  of  legal      requirements as  to be  ineffectual in  law; or made to      fill the place of an officer illegally re-moved or made      in  favour   of  a   party   not   having   the   legal      qualifications; or it may come from public acquiescence      in the  qualifications; or  it  may  come  from  public      acquiescence in  the officer holding without performing      the precedent  conditions, or  holding over under claim      of right  after his legal right has been terminated; or      possibly   from    public   acquiescence   alone   when      accompanied   by   such   circumstances   of   official      reputation as  are calculated to induce people, without      inquiry, to  submit to or invoke official action on the      supposition that the person claiming the office is what      he assumes  to be.  An intruder  is one who attempts to      perform the  duties of  an office  without authority of      law, and without the support of public acquiescence.           No one is under obligation to recognise or respect      the acts  of an  intruder, and  for all  legal purposes      they are absolutely void. But for the sake of order and      regularity, and  to prevent confusion in the conduct of      public business  and in security of private rights, the      acts of  officers de  facto  are  not  suffered  to  be      questioned because  of  the  want  of  legal  authority      except by some direct proceeding instituted for 483      the purpose  by the  State or  by some one claiming the      office de  jure, or  except  when  the  person  himself      attempts  to   build  up  some  right,  or  claim  some      privilege or  emolument, by reason of being the officer      which he  claims to  be. In all other cases the acts of      an officer  de facto  are as valid and effectual, while      he is  suffered to retain the office, as though he were      an officer  by right,  and the  same legal consequences

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    will flow  from them  for the  protection of the public      and of  third parties. There is an important principle,      which finds  concise expression in the legal maxim that      the acts  of officers  de facto  cannot  be  questioned      collaterally."      In Black on judgments it is said:           "A person  may  be  entitled  to  his  designation      although he is not a true and rightful incumbent of the      office, yet  he is  no mere  usurper but holds it under      colour  of  lawful  authority.  And  there  can  be  no      question  that   judgments  rendered   and  other  acts      performed by  such a  person who  is  ineligible  to  a      judgeship but who has nevertheless been duly appointed,      and who exercises the power and duties of the office is      a de  facto judge,  and his  acts are valid until he is      properly removed."      The de  facto doctrine  has been  recognised by  Indian Courts also.  In Pulin  Behari v. King Emperor, Sir Ashutosh Mookerjee, J  after tracing the history   of the doctrine in England observed as follows:           "The substance  of the matter is that the de facto      doctrine was  introduced into  the law  as a  matter of      policy and  necessity, to  protect the  interest of the      public and  the individual  where these  interests were      involved in the official acts of persons exercising the      duties of  an office without being lawful officers. The      doctrine in fact is necessary to maintain the supremacy      of the  law and  to preserve  peace and  order  in  the      community at  large. Indeed,  if any individual or body      of  individuals   were  permitted,   at  his  or  their      pleasure, to  collaterally challenge  the authority  of      and to  refuse obedience to the Government of the State      and  the   numerous  functionaries   through  whom   it      exercised its various 484      powers  on   the  ground   of  irregular  existence  or      defective title,  insubordination and  disorder of  the      worst kind  would be encouraged. For the good order and      peace of  society, their authority must be upheld until      in  some   regular  mode   their  title   is   directly      investigated and determined."      In P. S. Menon v. State of Kerala and Ors. a Full Bench of the  Kerala High  Court consisting  of P.  Govindan Nair, K.K. Mathew  and T.S. Krishnamoorthy Iyer, JJ said about the de facto doctrine:           "This doctrine was engrafted as a matter of policy      and necessity to protect the interest of the public and      individual involved  in the  official acts  of  persons      exercising the  duty of  an  officer  without  actually      being one  in strict  point of  law. But although these      officers are not officers de jure they are by virtue of      the particular  circumstances, officers, in fact, whose      acts,  public  policy  requires  should  be  considered      valid".      In the  judgment under  appeal Kuppuswami and Muktadar, JJ observed:           "Logically  speaking   if  a  person  who  has  no      authority to do so functions as a judge and disposes of      a case  the  judgment  rendered  by  him  ought  to  be      considered as  void and  illegal, but  in view  of  the      considerable inconvenience which would be caused to the      public in  holding as void judgments rendered by judges      and other public officers whose title to the office may      be found  to be  defective at a later date. Courts in a      number of  countries have, from ancient times evolved a

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    principle of  law that  under certain  conditions,  the      acts of  a judge  or officer  not legally competent may      acquire validity".      A judge,  de facto, therefore, is one who is not a mere intruder or  usurper but  one who holds office, under colour of lawful authority, though his appointment is defective and may later  be found  to be defective. Whatever be the defect of his  title to the office, judgments pronounced by him and acts done  by him  when he  was clothed  with the powers and functions of  the office,  albeit unlawfully,  have the same efficacy as judgments pronounced and acts done by a Judge de 485 jure. Such  is the  de facto doctrine, born of necessity and public policy  to prevent  needless  confusion  and  endless mischief. There  is yet  another rule  also based  on public policy. The defective appointment of a de facto judge may be questioned directly  in a  proceeding to which he be a party but it  cannot be permitted to be questioned in a litigation between two  private litigants,  a litigation which is of no concern or  consequence to  the judge except as a judge. Two litigants  litigating   their  private   titles  cannot   be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment  a litigation  may be commenced for a declaration that the  judgment is  void because the judge is no judge. A judge’s title  to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of  judicial appointments.  To question  a  judge’s appointment in an appeal against the judgment is, of course, such a collateral attack.      We do  not agree  with the  submission of  the  learned counsel that  the  de  facto  doctrine  is  subject  to  the limitation that  the defect in the title of the judge to the office should  not be  one traceable  to the  violation of a constitutional   provision.    The   contravention    of   a constitutional provision  may invalidate  an appointment but we are  not concerned  with that.  We are concerned with the effect of  the invalidation  upon the acts done by the judge whose  appointment   has  been  invalidated.  The  de  facto doctrine saves  such Acts.  The de  facto doctrine  is not a stranger to  the Constitution  or to  the Parliament and the Legislatures of  the States.  Art. 71(2) of the Constitution provides that  acts done  by the President or Vice President of India  in the  exercise and performance of the powers and duties of  his office  shall not be invalidated by reason of the election  of a  person as  President or  Vice  President being  declared   void.  So   also  Sec.   107(2)   of   the Representation of  the People  Act 1951  (Act  43  of  1951) provides that  acts and  proceedings in  which a  person has participated as  a Member  of Parliament  or a Member of the Legislature of a State shall not be invalidated by reason of the election of such person being declared to be void. There are innumerable  other Parliamentary  and State  Legislative enactments which  are  replete  with  such  provisions.  The Twentieth Amendment of the Constitution is an instance where the de facto doctrine was applied by the Constituent body to remove any  suspicion or  taint of illegality, or invalidity that may  be argued  to have  attached itself  to  judgment, decrees sentences  or  orders  passed  or  made  by  certain District Judges  appointed before  1966, otherwise  than  in accordance with the provision of Art. 233 and Art 235 of 486 the  Constitution.   The   Twentieth   Amendment   was   the consequence of  the decision of the Supreme Court in Chandra Mohan v.  State of Uttar Pradesh and Ors., that appointments

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of District  Judges made  otherwise than  in accordance with the provisions  of Arts.  233 and  235 were invalid. As such appointments had  been made  in many  States,  in  order  to preempt  mushroom  litigation  springing  up  all  over  the country,  it  was  apparently  thought  desirable  that  the precise position should be stated by the Constituent body by amending the  Constitution. Shri Phadke, learned counsel for the appellants,  argued that  the constituent body could not be  imputed   with  the   intention  of  making  superfluous amendments to  the Constitution.  Shri Phadke  invited us to say that  it was  a necessary  inference from  the Twentieth Amendment of  the Constitution  that, but for the amendment, the judgments, decrees etc. of the District Judges appointed otherwise than in accordance with the provisions of Art. 233 would be  void. We do not think that the inference suggested by Shri  Phadke is a necessary inference. It is true that as a general  rule the  Parliament may  be presumed not to make superfluous legislation.  The presumption  is not  a  strong presumption and  statutes are  full of provisions introduced because abundans  cautela non  nocet (there  is no  harm  in being cautious).  When judicial  pronouncements have already declared the  law on  the subject, the statutory reiteration of the  law with  reference to the particular cases does not lead to the necessary inference that the law declared by the judicial pronouncements  was not  thought to  apply  to  the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was  acting under the influence of excessive caution and so to  silence the  voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan’ case (Supra) this Court  held that  appointments of  District Judges made otherwise  than   in  accordance   with  Art.   233  of  the Constitution were  invalid. Such  appointments had been made in Uttar  Pradesh and  a few  other States.  Doubts had been cast upon  the  validity  of  the  judgments,  decrees  etc. pronounced by those District Judges and large litigation had cropped up.  It was  to clear  those doubts and not to alter the law that the Twentieth Amendment of the Constitution was made. This  is clear  from  the  statement  of  objects  and reasons  appended   to  the   Bill  which   was  passed   as Constitution (20th Amendment) Act. 1966. The statement said: 487      "Appointments of District Judges in Uttar Pradesh and a      few other States have been rendered invalid and illegal      by a recent judgment of the Supreme Court on the ground      that such appointments were not made in accordance with      the provisions of Art. 233 of the Constitution.... As a      result of  these judgments,  a  serious  situation  has      arisen because doubt has been thrown on the validity of      the judgments,  decrees, orders and sentences passed or      made by  these District  Judges and  a number  of  Writ      Petitions and  other  cases  have  already  been  filed      challenging their  validity.  The  functioning  of  the      District Courts  in Uttar  Pradesh has practically come      to a  stand-still. It is, therefore, urgently necessary      to  validate   the  judgments,   decrees,  orders   and      sentences  passed   or  made  heretofore  by  all  such      District Judges in those States......"      In our  view, the de facto doctrine furnishes an answer to the  submissions of  Shri Phadke based on Sec. 9 Criminal Procedure Code  and Art.  21 of the Constitution. The judges who rejected  the appeal  in  one  case  and  convicted  the accused  in  the  other  case  were  not  mere  usurpers  or intruders but  were persons who discharged the functions and

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duties of  judges under  colour of  lawful authority. We are concerned with the office that the judges purported to hold. We are  not concerned  with the particular incumbents of the office. So  long as  the  office  was  validly  created,  it matters not  that the incumbent was not validly appointed. A person appointed  as a  Sessions Judge,  Additional Sessions Judge or  Assistant  Sessions  Judge,  would  be  exercising jurisdiction in  the Court of Session, and his judgments and orders would  be those  of the  Court of Session. They would continue to  be valid  as the  judgments and  orders, of the Court of  Session, notwithstanding  that his  appointment to such Court might be declared invalid. On that account alone, it can  never be  said that  the procedure prescribed by law has not been followed. It would be a different matter if the constitution of  the Court itself is under challenge. We are not concerned  with such situation in the instant cases. We, therefore, find  no force  in any  of the submissions of the learned counsel.      Shri  Govindan   Nair  attempted   to  argue  that  the confiscation was  not justified  on the  merits. We  find no reason to interfere with 488 the concurrent  findings of  fact arrived  at by  the  lower Courts. Shri  Phadke requested  us to widen the scope of the appeals and  to permit  him to canvas the correctness of the convictions and  sentences also.  We declined  to do so. All the appeals are dismissed. P.B.R     Appeals dismissed. 489