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PETITIONER: THE STATE OF UTTAR PRADESH

       Vs.

RESPONDENT: MOHAMMAD NOOH

DATE OF JUDGMENT: 30/09/1957

BENCH: BOSE, VIVIAN BENCH: BOSE, VIVIAN DAS, SUDHI RANJAN (CJ) AIYYAR, T.L. VENKATARAMA IMAM, SYED JAFFER SARKAR, A.K.

CITATION:  1958 AIR   86            1958 SCR  595

ACT:        Certiorari, writ of-Principles governing  issue-Availability        of  alternative remedy by appeal, if a bar-Departmental  en-        quiry  Violation of principles of natural  justice-Presiding        officer himself  witness-- order of dismissal made  previous        to the Constitution Revision disallowed after the  Constitu-        tion-Such order, if can be quashed-Constitution India,  Art.        226.

HEADNOTE:        A  departmental enquiry against the respondent, a Head  Con-        stable,  was held by the District Superintendent of  Police.        During  the  enquiry the District Superintendent  of  Police        himself  became  a witness and gave evidence at  two  stages        against  the respondent, his statement being recorded  by  a        Deputy Superintendent of Police.  The District  Superintend-        ent of Police then found the respondent guilty and on  April        20,  1948,  passed an order of dismissal against  him.   The        respondent went up in appeal to the Deputy Inspector General        of Police but the appeal was dismissed on May 7, 1949.   The        respondent then filed a revision application to the  Inspec-        tor General of Police which was also dismissed on April  22,        1950.  Thereupon, the respondent filed a writ petition under        Art.  226 of the Constitution before the High Court  praying        for  the setting aside of the order of dismissal.  The  High        Court  held that the rules of natural justice and  fair-play        had  been disregarded and accordingly, quashed the  proceed-        ings  and  set aside the three several  orders.   The  State        obtained a certificate of fitness and appealed.        Held, (percuriam) that the District Superintendent of Police        who  had acted both as the judge and as a witness  had  dis-        qualified  himself  from presiding over  the  enquiry.   The        procedure  adopted  was  contrary to the  rules  of  natural        justice  and fair-play.  Decisions and orders based on  such        procedure are invalid and not binding.        There is no rule with regard to certiorari, as there is with        mandamus,  that  it will lie only where there  is  no  other        equally effective remedy.  The existence of another adequate        remedy  may be taken into consideration in the  exercise  of

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      the  discretion.  If an inferior Court or tribunal of  first        instance  acts  without jurisdiction or in excess of  it  or        contrary to the rules of natural justice, the superior Court        may quite properly issue a writ of certiorari to correct the        error, even if an appeal to another inferior Court or tribu-        nal  was available, whether recourse was or was not  had  to        it.  This would be so all the more in the case of departmen-        tal  tribunals  composed of persons without  adequate  legal        training and background.        76        596        Janardan Reddy v. The State of Hyderabad, (1951) S.C.R.  344        referred to.  King v. Postmaster-General, Exparte Carmichael        (1928)  i  K.B. 291 ; Rex v. Wandsworths  justices,  Exparte        Read,  (1942) I K.B. 281; Khurshed Modi v. Rent  Controller,        Bombay,  A.  [.R.  (1947) Bom. 46;  Assistant  Collector  of        Customs v. Soorajmull Nagarmull, (1952) 56 C.W.N. 453 relied        on.        Held,  (per S. R. Das, C.J., Venkatarama Ayyar,  Jafer  Imam        and Sarkar, JJ.  Bose, J., dissenting) that Art. 226 of  the        Constitution  is not retrospective and the High Court  could        not exercise its powers under Art. 226 to quash the order of        dismissal  passed before the commencement of  the  Constitu-        tion.  It is wrong to say that the order of dismissal passed        on  April 20, 1948, merged in the order in the appeal  dated        May  7, 1949, and the two orders merged in the order in  the        revision dated April 22, 1950, or that the original order of        dismissal  became final only on the passing of the order  in        revision.  The original order of dismissal was operative  on        its own strength.        Per  Bose, J.--The High Court had jurisdiction to quash  all        the  orders, as the proceedings should be regarded as  still        pending  till the order in revision was passed on April  22,        195o.  The District Superintendent of Police was acting in a        judicial  capacity  and was bound to observe  principles  of        natural justice.  These principles he ignored.

JUDGMENT:        CIVIL APPELLATE JURISDICTION: Civil Appeal No. 130 of 1956.        Appeal  from the judgment and decree dated the  10th  March,        1952,  of the Allahabad High Court in Civil Writ No. 737  of        1951.        G.   C. Mathur and C. P. Lal, for the appellant.        S.   P. Sinha and S. D. Sekhri, for the respondent.        1957.  September 30.  The judgment of Das C. J., Venkatarama        Aiyar, Jafer Imam and Sarkar JJ. was delivered by Das C.  J.        Bose J. delivered a separate judgement.        DAS  C.  J.-This is an appeal filed under a  certificate  of        fitness granted by the High Court of Judicature at Allahabad        under Arts. 132 (1) and 133 (1) (c) of the Constitution.  It        is  directed  against the judgment and order of  a  Division        Bench  of the said High Court pronounced on March 10,  1952,        in  Civil Misc.  Writ No. 7376 of 1951 quashing the  depart-        mental  proceedings  against the respondent and  the  orders        passed        597        therein,  namely, the order for his dismissal passed by  the        District Superintendent of Police on -December 21, 1948, the        order  of the Deputy Inspector General of Police  passed  on        June 7, 1949, dismissing his appeal against the order of his        dismissal  and the order of the Inspector General of  Police        dated April 22,1950 rejecting his application for  revision.        The  judgment  of the High Court also directed that,  if  it

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      were  desired to proceed against the respondent,  the  trial        should be presided over by a person other than the  District        Superintendent  of Police who gave evidence in the case  and        also  passed the order of dismissal against  the  respondent        and that it should be in strict conformity with the relevant        Police Regulations.        The  respondent was a constable in the Uttar Pradesh  Police        Force  and was, at the material time, officiating as a  Head        Constable and posted in the District of Fatenpur.  In Decem-        ber,  1947,  sixty candidates had to be  selected  from  the        Police  Force for training at tile Police Training  College,        Moradabad.   The respondent was sent up for  selection  from        the District of Fatehpur.  He, however, failed in the  Hindi        test  and was not selected and sixty other  candidates  were        selected for the training.        On December 8, 1947 a letter, purporting to have been issued        from  Lucknow, was received in the U. P. Police Head  Office        at Allahabad intimating that the respondent had been select-        ed  for training at the Police Training College.   As  there        were  only sixty vacancies and as sixty candidates  had  al-        ready been selected, the Head Office people were led to make        enquiries  as  to  how this letter came to  be  issued  from        Lucknow.  The letter having been placed before the Inspector        General  of Police, Lucknow,he declared it to be a  forgery.        As the letter was ostensibly for the benefit of the respond-        ent, it was naturally suspected that it must have been  sent        by or at his instance.        On  March 15, 1948 the respondent was placed  under  suspen-        sion.   Under s. 243 of the Government of India  Act,  1935,        which  was  then in force, the respondent, who  was  in  the        police force, was not governed by sub-s. (3) of s. 240 which        corresponds to art. 311 (2) of        598        the  Constitution but was governed by the Police  Act,  1861        (Act  V of 1861) and the Regulations made thereunder by  the        State Government.  Accordingly, under s. 7 of the Police Act        read  with Uttar Pradesh Police Regulations, a  departmental        enquiry,  called a "trial" in the Regulations,  was  started        against  the  respondent.  One Shri B. N. Bhalla,  the  then        District Superintendent of Police, Fatehpur, was deputed  to        hold the trial.  He found the respondent guilty and on April        20,  1948  passed an order of dismissal  against  him.   The        respondent went up on appeal to the Deputy Inspector General        of Police under Reg. 508.  That appeal was dismissed on June        7,  1949.  The respondent then filed a revision  application        to  the  Inspector General of Police under Reg.  512.   That        application was also dismissed on April 22, 1950.        Having exhausted all his remedies under the Police Act  read        with  the Regulations thereunder the respondent on  February        24,  1951, filed a writ petition under Art. 226 of the  Con-        stitution,  praying  that  the file of  the  applicant  (now        respondent) be called for and his dismissal be set aside and        that he be given such further and other relief as he may, in        law,  be entitled to. The main point taken in the  affidavit        filed  in support of the petition and urged before the  High        Court was that Shri B. N. Bhalla, District Superintendent of        Police, who presided over the trial and as such had to  come        to  a finding and to make an order, also gave his  own  evi-        dence  in the proceedings at two stages and had thus  become        disqualified  from continuing as the judge, as, in the  cir-        cumstances he was bound to be biased against the respondent.        A preliminary objection was taken on behalf of the appellant        State  that the High Court had no power, under Art. 226,  to        deal with the order of dismissal which had been passed at  a        time when the Constitution of India had not come into force,

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      but  the High Court rejected that plea as it took  the  view        that the order of dismissal passed by the District  Superin-        tendent  of  Police on December 20, 1948, and the  order  of        dismissal  of  the  appeal passed by  the  Deputy  Inspector        General of Police on June 7,1949, had not become final        599        until  the Inspector General of Police, on April  22,  1950,        made his order dismissing the revision application filed  by        the respondent under Reg. 512 and that as the last mentioned        order  had been passed after the Constitution had come  into        force, and had, by Art. 226, vested powers in the High Court        to issue prerogative writs, the High Court had ample  juris-        diction  to  exercise its newly acquired powers  under  that        article.   On the merits the High Court came to the  conclu-        sion  that  the rules of natural justice and  fair-play  had        been  disregarded,  in that the District  Superintendent  of        Police had continued to preside over the trial even after it        had  become necessary for him to put on the record  his  own        testimony  as  against that of another witness and  it  held        that the presiding officer had, in the circumstances, become        disqualified, on the ground of bias, from further acting  as        the  presiding officer and that the departmental trial  con-        ducted  by  him thereafter had become  vitiated.   The  High        Court,  accordingly, quashed the proceedings and  set  aside        the  three  several  orders herein  before  mentioned.   The        appellant State on February 4, 1955, obtained from the  High        Court  a  certificate  of fitness  under  Arts.  132(1)  and        133(1)(c) and hence the present appeal to this Court.        It  will be recalled that the forged letter of  December  8,        1947, was suspected to have been manufactured or sent by  or        at  the instance of the respondent to further his  interest.        The  case  against  the respondent was  that  the  offending        letter  had  been typed by one Shariful  Hasan,  the  typist        attached  to  the office of the  Superintendent  of  Police,        Fatehpur,  and, therefore, it was essential for the  depart-        ment to establish that the respondent was in friendly  rela-        tions  with  Shariful Hasan who was said to have  typed  the        letter.   Apparently in some preliminary enquiry and in  the        presence  of Shri B. N. Bhalla one Mohammad Khalil,  a  Head        Constable,  had  spoken  about  Shariful  Hasan  being  very        friendly with the respondent.  But while giving his evidence        at  the departmental trial the said Mohammad  Khalil  denied        having  made  any such statement.  In the  circumstances  it        became necessary to contradict him by the testimony of  Shri        B. N. Bhalla in whose presence        600        that witness had, on a previous occasion, stated that Shari-        ful Hasan was very friendly with the respondent.  According-        ly Shri B. N. Bhalla had his testimony recorded by a  Deputy        Superintendent  of  Police.  This was done  at  two  stages,        namely, once before the charges were framed and again  after        the  framing of the charges.  The respondent’s grievance  is        that  Shri ’B. N. Bhalla, who had thus become a  witness  in        the case, ought not to have further continued to act as  the        presiding officer and that his continuing to do so  vitiated        the  trial  and his order was a nullity.  That  Shri  B.  N.        Bhalla  had  his own testimony recorded in the case  is  not        denied.   Indeed the appellant State, in opposition  to  the        respondent’s  writ application, filed an affidavit  affirmed        by Shri B. N. Bhalla, paragraph 8 of which runs as follows:        "  8.  That the deponent gave his first  statement  on  13th        October,  1948, which was recorded by Shri  Mohammad  Sadiq,        Deputy  Superintendent of Police before the charge  and  the        second  statement on 25th October, 1948, which was  recorded        by another Deputy Superintendent of Police after the charge.

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      One  Head  Constable, Mohammad Khalil, who  was  prosecution        witness in the case, when cross-examined denied to have said        that  the  applicant  and Shariful Hasan  were  on  friendly        terms.   He turned hostile and it became necessary  for  the        deponent to depose about certain facts which had happened in        his  presence  and which belied the  testimony  of  Mohammad        Khalil - "        The salient facts being thus admitted there can be no escape        from  the conclusion that Shri B. N. Bhalla should not  have        presided over the trial any longer.  The point in issue  was        whether Shariful Hasan was in friendly relationship with the        respondent.   Mohammad  Khalil had in his  evidence  at  the        trial denied having made any statement to this effect.  Shri        B.  N. Bhalla gave evidence that Mohammad Khalil had in  his        presence admitted this friendship of Shariful Hasan with the        respondent.  Which of the two witnesses, Mohammad Khalil and        Shri  B. N. Bhalla, was to be believed was the duty  of  the        person  presiding over the trial to determine.  Shri  B.  N.        Bhalla was obviously        601        most  ill suited to undertake that task.  Having pitted  his        evidence  against that of Mohammad Khalil Shri B. N.  Bhalla        vacated the Judge’s seat and entered the arena as a witness.        The  two roles could not obviously be played by one and  the        same  person. lndeed Shri B. N. Bhalla himself  realised  it        and  accordingly bad his own evidence recorded on  both  the        occasions  by other high officers.  It is futile  to  expect        that he could, in the circumstances, hold the scale even. it        is  suggested  that  there might have  been  other  evidence        establishing  the friendship between Shariful Hasan and  the        respondent and that the evidence of Shri B. N. Bhalla  might        not have been relied on or might Dot have been the  deciding        factor.  There is nothing on the record before us to support        this  suggestion.  But assuming that Shri B. N.  Bhalla  did        not  rely  on  his own evidence in  preference  to  that  of        Mohammad Khalil-a fact which is hard to believe,  especially        in  the  face of his own affidavit quoted above-the  act  of        Shri  B. N. Bhalla in having his own testimony  recorded  in        the case indubitably evidences a state of mind which clearly        discloses  considerable bias against the respondent.  If  it        shocks  our notions of judicial propriety and fair-play,  as        indeed it does, it was bound to make a deeper impression  on        the mind of the respondent as to the Unreality and  futility        of  the  proceedings  Conducted in this  fashion.   We  find        ourselves in agreement with the High Court that the rules of        natural justice were completely discarded and all canons  of        fair-play  were  grievously violated by Shri  B.  N.  Bhalla        continuing  to preside over the trial.  Decision arrived  at        by  such process and order founded on such  decision  cannot        possibly be regarded as valid or binding.        Learned counsel appearing for the appellant State then urges        that,  assuming that any error, irregularity  or  illegality        had been committed by Shri B. N. Bhalla in the course of the        trial held by him, a writ application under art. 226 was not        the  proper  remedy for correcting the same.   Reference  is        made to s. 7 of the Police Act, 1861 which, subject to  such        rules as the State Government may make under the Act, gives        602        power  to certain specified Police Officers of high rank  to        dismiss,  suspend  or  reduce  any  Police  Officer  of  the        subordinate ranks whom they may think remiss or negligent in        the  discharge  of  his  duties  or  unfit  for  the   same.        Regulation  508 of the Police Regulations made by the  State        of Uttar Pradesh provides for an appeal from the decision of        the officer holding the trial.  Likewise Reg. 512 confers on

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      an  officer  whose  appeal has been rejected  to  submit  an        application for revision to the authority next in rank above        that by which his appeal has been rejected.  The argument is        that  the  Police Act and the  Regulations  made  thereunder        having provided for an appeal and a revision and having  set        up  special  forums  with full powers  and  jurisdiction  to        correct  the  error,  irregularity  or  illegality  touching        jurisdiction,  procedure  and the merits  committed  by  the        officer  presiding  over the trial, such  forums  alone  are        competent  to  correct all such errors,  irregularities  and        illegalities.   In  this  case  admittedly  the   respondent        preferred  an  appeal  and then went  up  to  the  Inspector        General  of  Police in revision.  In the appeal and  in  the        revision  the respondent either took the plea of the  breach        of the rules of natural justice and fair-play now complained        of  or he did not.  The respondent knew the  material  facts        and  must  be  deemed to have been conscious  of  his  legal        rights  in the matter and, therefore, if he failed to  raise        the  objection before the officer who was dealing  with  his        appeal  or revision he cannot, it is urged, be permitted  to        do  so for the first time on a writ petition under Art.  226        before  the  High Court, as has been held by this  Court  in        Manak  Lal v. Dr. Prem Chand (1).  On the other hand  if  he        had  raised the question in his grounds of appeal or in  his        revision  petition and insisted on it at the hearing of  his        appeal  or  his  revision application  then  the  orders  of        dismissal  of  his  appeal  and  his  revision  petition  by        authorities  fully  competent  and having  full  powers  and        jurisdiction  to  decide  the question must be  taken  as  a        rejection  of  that plea on its merits and as  no  error  or        irregularity or illegality is alleged to have been committed        at the        603        stages  of the appeal or the revision proceedings, the  High        Court  could not, under Art. 226, interfere in  the  matter.        In  support  of  this  argument  learned  counsel  for   the        appellant  State relies upon the decision of this  Court  in        Janardan Reddy v. The State of Hyderabad (1).  In that  case        the  petitioners  were convicted by a  special  Tribunal  of        Hyderabad  of  murder and other offenses  and  sentenced  to        death by hanging.  Their Convictions and sentences had  been        Confirmed  by  the Hyderabad High Court before  January  26,        1950,  when the Constitution of India came into  force.   It        was  after  the commencement of the  Constitution  that  the        petitioners applied to this Court under Art. 32 praying  (1)        for  a  writ in the nature of certiorari  calling  Upon  the        Government of Hyderabad and the Special Judge to produce the        records  of the case and to show cause why  the  convictions        and  sentences should not be quashed and (2) for a  writ  of        prohibition  directing the Government and the Special  Judge        not  to execute the petitioners.  Subsequently the  petition        was  amended, with the leave of the court, by adding  prayer        (3)  for a writ of habeas corpus.  A number of  points  were        raised  before  this Court.  As regards the  several  points        complaining of alleged illegality by reason of misjoinder of        charges  and  the  infliction of the sentence  of  death  by        hanging and not decapitation this Court at page 351 observed        "  But,  for  the  purpose  of  the  present  case,  it   is        ,sufficient  to point out that even if we assume that  there        was  some defect in the procedure followed at the trial,  it        does   not  follow  that  the  trial  court  acted   without        jurisdiction.   There is a basic difference between want  of        jurisdiction,  and  an  illegal  or  irregular  exercise  of        jurisdiction,  and our attention has not been drawn  to  any        authority  in  which mere non-compliance with the  rules  of

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      procedure  has  been made a ground for granting one  of  the        writs  prayed for.  In either case, the defect, if any,  can        according  to the procedure established by law be  corrected        only  by a court of appeal or revision.  Here the  appellate        court  which  was  competent to deal  with  the  matter  has        pronounced  its  judgment against the petitioners,  and  the        matter        (1)  [1951] S.C.R. 344.        604        having  been finally decided is not one to be reopened in  a        proceeding under article 32 of the Constitution."        As   regards  the  prayers  for  writs  of  certiorari   and        prohibition  it  was held that the writs of  certiorari  and        prohibition  were hardly appropriate remedies in that  case,        because they were usually directed to an inferior court, but        at  the date when the High Court dealt with those cases  and        confirmed the convictions and sentences of the  petitioners,        this Court was not in existence, and at that point of  time,        by no stretch of reasoning, the High Court could be said  to        have  been subordinate to this court.  Then this Court  went        on to consider the remaining question, namely, whether after        the  commencement  of  the  Constitution  this  Court  could        exercise  its newly acquired jurisdiction under Art. 32  and        issue  a  writ  of habeas corpus as  the  detention  of  the        petitioners  was continuing even after the  commencement  of        the  Constitution.   It was urged that it was  open  to  the        petitioners  to  prove  by affidavit that  the  court  which        passed the order had acted without jurisdiction or in excess        of  it  and the superior court was free to  investigate  the        matter.   After stating that a return that the persons  were        in  detention  in execution of sentences  on  indictment  on        criminal charges was a sufficient answer to the  application        for  a writ of habeas corpus, this Court proceeded at  pages        366-367 to observe as follows:        "  Assuming however, that it is open even in such  cases  to        investigate the question of jurisdiction, as was held in  In        re Authers (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 which properly comes before it on  appeal,        is  fully competent to decide whether the trial was with  or        without jurisdiction, and it has jurisdiction to decide  the        matter  rightly  as  well as wrongly.   If  it  affirms  the        conviction        (1)  I. L.R. 22 B.D.        605        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 such thing as the        principle  of constructive res judicata in a criminal  case,        but  there  is such a principle as  finality  of  judgments,        which  applies  to criminal as well as civil  cases  and  is        implicit in every system, wherein provisions are to be found        for correcting errors in appeal or in revision."        In  the  first place it must be noted that  the  two  obser-        vations  quoted  from the decision of this  Court  on  which        reliance  is  placed on behalf of the appellant  State  were        made  in  a case where the alleged  error,  irregularity  or        illegality was committed by a special tribunal which had not        merely  the  trappings  of a court but was a  court  of  law

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      presided over by a judge with legal training and  background        and  bound by rules of evidence and procedure laid down  for        it  and the appeal from its decision lay before the  highest        and  final  court of the State-a superior court  of  record.        But  orders made on departmental "trial" held by an  officer        in  the  department without any legal  training  and  orders        passed  by his superior officers in the same  department  on        appeal or in revision which, in the words of Harries C.J. in        Assistant  Collector of Customs v. Soorajmull Nagarmull  (1)        were  only in the nature of an appeal from Caesar to  Caesar        and which might not be regarded with any great confidence by        persons  brought  before  them can hardly  be  equated  with        reasonable  propriety with the orders passed by the  Special        Tribunal and an appeal therefrom by the Hyderabad High Court        with  reference to which bodies alone the said  observations        had been made.        In the next place it must be borne in mind that there is  no        rule,  with regard to certiorari as there is with  mandamus,        that  it  will  lie only where there  is  no  other  equally        effective remedy.  It is well established that, provided the        requisite  grounds  exist, certiorari will  lie  although  a        right  of appeal has been conferred by statute.  (Halsbury’s        Laws  of  England, 3rd Ed., Vol. 11, p. 130  and  the  cases        cited there).  The fact        (1)  (1952) 56 C.W.N. 43, 46.        606        that the aggrieved party has another and adequate remedy may        be  taken  into  consideration  by  the  superior  court  in        arriving  at  a  conclusion  as to  whether  it  should,  in        exercise  of its discretion, issue a writ of  certiorari  to        quash  the  proceedings  and decisions  of  inferior  courts        subordinate  to  it and ordinarily the superior  court  will        decline to interfere until the aggrieved party has exhausted        his  other  statutory  remedies,  if  any.   But  this  rule        requiring  the exhaustion of statutory remedies  before  the        writ  will be granted is a rule of policy,  convenience  and        discretion  rather  than  a rule of law  and  instances  are        numerous where a writ of certiorari has been issued in spite        of  the  fact that the aggrieved party  had  other  adequate        legal remedies.  In the King v. Postmaster General Ex  parte        Carmichael   (1)  a  certiorari  was  issued  although   the        aggrieved party had an alternative remedy by way of  appeal.        It has been held that the superior court will readily  issue        a  certiorari  in a case where there has been  a  denial  of        natural justice before a court of summary jurisdiction.  The        case  of  Rex v.Wadsworth Justices Ex parte Read (2)  is  an        authority  in point.  In that case a man had been  convicted        in  a  court of summary jurisdiction without giving  him  an        opportunity of being heard.  It was held that his remedy was        not  by  a case stated or by an appeal  before  the  quarter        sessions  but by application to the High Court for an  order        of  certiorari to remove and quash the conviction.  At  page        284 Viscount Caldecote C.J. observed:        "  It  remains to consider the argument that the  remedy  of        certiorari is not open to the applicant because others  were        available.   It  would be ludicrous in such a  case  as  the        present  for  the convicted person to ask for a case  to  be        stated.   It would mean asking this court to consider  as  a        question of law whether justices were right in convicting  a        man without hearing his evidence.  That is so extravagant an        argument  as not to merit a moment’s consideration..  As  to        the right of appeal to quarter sessions, it may be that  the        applicant could have had his remedy if he        (1)[1928] 1 K.B. 201.        (2) [1942] 1 K.B. 281.

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      607        had  pursued that course, but I am not aware of  any  reason        why,  if  in such circumstances as these,  he  preferred  to        apply  for an order of certiorari to quash  his  conviction,        the court should be debarred from granting his application."        Likewise in Khurshed Modi v. Rent Controller, Bombay (1), it        was  held  that the High Court would not refuse to  issue  a        writ  of  certiorari  merely because there was  a  right  of        appeal.   It was recognized that ordinarily the  High  Court        would  require  the  petitioner  to  have  recourse  to  his        ordinary  remedies,  but if it found that there had  been  a        breach of fundamental principles of justice, the High  Court        would   certainly  not  hesitate  to  issue  the   writ   of        certiorari.    To   the  same  effect  are   the   following        observations  of  Harries  C.J. in  Assistant  Collector  of        Customs v. Soorajmull Nagarmul (2) at page 470:        "  There can, I think, be no doubt that Court can refuse  to        issue  a  certiorari if the petitioner  has  other  remedies        equally convenient and effective.  But it appears to me that        there  can be cases where the court can and should  issue  a        certiorari   even  where  such  alternative   remedies   are        available.  Where a Court or Tribunal, which is called  upon        to  exercise judicial or quasi-judicial  functions  discards        all  rules  of  natural justice and arrives  at  a  decision        contrary  to  all  accepted principles of  justice  then  it        appears to me that the court can and must interfere."        It has also been held that a litigant who has lost his right        of appeal or has failed to perfect an appeal by no fault  of        his own may in a proper case obtain a review by  certiorari.        (See  Corpus Juris Secundum Vol. 14, art. 40, p. 189).   If,        therefore, the existence of other adequate legal remedies is        not per se a bar to the issue of a writ of certiorari and if        in a proper case it may be the duty of the superior court to        issue  a  writ  of certiorari to correct the  errors  of  an        inferior court or tribunal called upon to exercise  judicial        or   quasi-judicial  functions  and  not  to  relegate   the        petitioner  to other legal remedies available to him and  if        the  superior  court  can  in a  proper  case  exercise  its        jurisdiction        1) A.I.R. 1  Bom. 6.        2) 1952) 6 C.W.N. 3.        608        in favour of a petitioner who has allowed the time to appeal        to  expire  or  has  not  perfected  his  appeal,  e.g.,  by        furnishing security required by the statute, should it  then        be laid down as an inflexible rule of law that the  superior        court must deny the writ when an inferior court or  tribunal        by  discarding  all principles of natural  justice  and  all        accepted  rules of procedure arrived at a  conclusion  which        shocks  the  sense of justice and fair play  merely  because        such  decision has been upheld by another inferior court  or        tribunal on appeal or revision?  The case of In re,  Authers        (1) referred to in Janardan Reddy’s case, (2) furnishes  the        answer.   There the manager of a club was convicted under  a        certain statute for selling beer by retail without an excise        retail  license.  Subsequently he was convicted  of  selling        intoxicating  liquor, namely, beer without a  license  under        another  statute.   Upon  hearing of the  later  charge  the        magistrate treated it as a second offence and imposed a full        penalty  authorised in the case of a second offence  by  the        latter  statute.  His appeal to the quarter sessions  having        been  dismissed, he applied for a writ of habeas corpus  and        it  was granted by the King’s Bench Division on  the  ground        that  the magistrate could not treat the later offence as  a        second  offence, because it was not a second  offence  under

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      the  Act under which he was convicted for the  second  time.        Evidently  the  point was taken that if there had  been  any        error,   irregularity   or  illegality  committed   by   the        magistrate,  the  quarter  sessions  could  have  on  appeal        corrected  the  same and that the  quarter  sessions  having        dismissed  the  appeal the court of Queen’s  Bench  Division        could  not  issue  the  writ of  habeas  corpus.   This  was        repelled by the following observation of Hawkins J.:        " This is true as a fact, but it puts the prosecution in  no        better position, for if the magistrate had no power to  give        himself jurisdiction by finding that there had been a  first        offence  where there had been none, the justices  could  not        give it to him."        On  the authorities referred to above it appears to us  that        there may conceivably be cases-and the instant        (1)  889 L.R. 22 Q.B.D 345.        (2) [1951] S.C.R. 344.        609        case is in point-where the error, irregularity or illegality        touching jurisdiction or procedure committed by an  inferior        court or tribunal of first instance is so patent and  loudly        obtrusive that it leaves on its decision an indelible  stamp        of infirmity or vice which cannot be obliterated or cured on        appeal  or  revision.  If an inferior court or  tribunal  of        first instance acts wholly without jurisdiction or  patently        in  excess  of  jurisdiction  or  manifestly  conducts   the        proceedings  before it in a manner which is contrary to  the        rules of natural justice and all accepted rules of procedure        and  which offends the superior court’s sense of  fair  play        the  superior court may, we think, quite  properly  exercise        its  power  to issue the prerogative writ of  certiorari  to        correct  the  error  of  the  court  or  tribunal  of  first        instance,  even  if an appeal to another inferior  court  or        tribunal was available and recourse was not had to it or  if        recourse was had to it confirmed what ex facie was a nullity        for  reasons aforementioned.  This would be so all the  more        if  the  tribunals  holding  the  original  trial  and   the        tribunals  hearing  the  appeal  or  revision  were   merely        departmental tribunals composed of persons belonging to  the        departmental  hierarchy without adequate legal training  and        background and whose glaring lapses occasionally come to our        notice.   The  superior  court will  ordinarily  decline  to        interfere by issuing certiorari and all we say is that in  a        proper case of the kind mentioned above it has the power  to        do  so and may and should exercise it.  We say no more  than        that.        Learned  counsel  for the appellant State  next  urges  that        because  the order of dismissal was passed by  the  District        Superintendent of Police on December 20, 1948, and the order        dismissing  the  appeal was passed by the  Deputy  Inspector        General of Police on June 7, 1949, both of which were before        the  commencement of the Constitution, the High Court  could        not  exercise  its  powers under Art.  226  to  quash  those        orders.  This argument is countered by the respondent by the        argument that the dismissal order of December 20, 1948,  did        not become final until after the Inspector General of Police        had dismissed the revision,        610        application  on  April 22,1950, that is to  say,  after  the        Constitution came into force, and, therefore, the High Court        had ample power to quash all the three orders.        It  is not disputed that our Constitution is prospective  in        its  application and has no retrospective  operation  except        where the contrary has been expressly provided for.  It  has        been held in a series of decisions of the High Courts,  some

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      of which are referred to in the judgment under appeal,  that        Art.  226 and Art. 227 have no retrospective  operation  and        transactions  which are past and closed and the  rights  and        liabilities  which  have  accrued and  vested  would  remain        unaffected.  The correctness of this principle has not  been        questioned  by the High Court when dealing with the  present        case and has not been disputed before us.  It is, therefore,        conceded  that  if the matter had rested with the  order  of        dismissal passed by the District Superintendent of Police on        April  20,  1948,  and  the  order  passed  by  the   Deputy        Inspector-General of Police on June 7, 1949, dismissing  the        appeal  and  confirming the order for the dismissal  of  the        respondent,  an application for a writ under Art. 226  would        not lie in this High Court to set aside those orders as this        was  not one of the High Courts that had  writ  jurisdiction        before the Constitution.  It is, however, contended that the        order  of dismissal dated April 20, 1948, had merged in  the        order  passed  on appeal on June 7,1949, and that  both  the        orders  merged in the order passed by the  Inspector-General        of  Police on April 22, 1950, on the  revision  application.        It is said that the revisional jurisdiction is a part of the        appellate  jurisdiction and the principle on which a  decree        of the court of first instance in a civil suit merges in the        decree  on appeal applies with equal force to an order  made        on  an  application for revision and consequently  both  the        orders  passed by the District Superintendent of Police  and        that  passed  on appeal by the Deputy Inspector  General  of        Police  merged  in  the  order passed  on  revision  by  the        Inspector-General  of Police on April 22, 1950.  To  put  it        shortly, the contention of the respondent is that the  order        of  dismissal  passed on April 20,became final only  on  the        passing of the order in        611        revision  on  April 22, 1950, and as that order  was  passed        after the date of the commencement of the Constitution,  its        validity could be called in question on an application under        Art. 226.        There appear to be two answers to the foregoing  contention.        As we have already observed an order of dismissal passed  on        a  departmental enquiry by an officer in the department  and        an order passed by another officer next higher in rank  dis-        missing  an  appeal  therefrom and  an  order  rejecting  an        application  for revision by the head of the department  can        hardly be equated with any propriety with decrees made in  a        civil suit under the Code of Civil Procedure by the court of        first  instance and the decree dismissing the appeal  there-        from  by  an  appeal  court and  the  order  dismissing  the        revision petition by a yet higher court, as has been  sought        to  be  done  by the High Court in this  case,  because  the        departmental tribunals of the first instance or on appeal or        revision are not regular courts manned by persons trained in        law  although they may have the trappings of the  courts  of        law.   The  danger  of so doing is  evident  from  what  has        happened in the very case now before us.  In the next place,        while it is true that a decree of a court of first  instance        may  be said to merge in the decree passed on appeal  there-        from  or  even in the order passed in revision, it  does  so        only  for  certain  purposes, namely, for  the  purposes  of        computing  the  period of limitation for  execution  of  the        decree  as in Batuk Nath v. Munni Dei(1), or  for  computing        the period of limitation for an application for final decree        in a mortgage suit as in Jowad Hussain v. Gendan Singh  (2).        But,  as pointed out by Sir Lawrence Jenkins  in  delivering        the  judgment  of  the  Privy Council  in  Juscurn  Boid  v.        Prithichand  Lal  (3), whatever be the  theory  under  other

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      systems  of  law,  under the Indian Law  and’  procedure  an        original  decree is not suspended by the presentation of  an        appeal nor is its operation interrupted where the        (1)  (1914) L.R. 41 I.A. 104.        (2)  (1926) L.R. 53 1 A. 197.        (3)  (1918) L.R. 46 I.A, 52; I.L.R. 46 Cal. 670, 678-679.        612        decree  on  appeal  is merely one of  dismissal.   There  is        nothing in the Indian Law to warrant the suggestion that the        decree  or  order  of the court or  tribunal  of  the  first        instance  becomes  final  only on  the  termination  of  all        proceedings  by ’way of appeal or revision.  The  filing  of        the  appeal  or  revision may put the  decree  or  order  in        jeopardy  but  until it is reversed or modified  it  remains        effective.  In that view of the matter the original order of        dismissal passed on April 20, 1948, was not suspended by the        presentation  of  appeal  by  the  respondent  nor  was  its        operation  interrupted when the Deputy Inspector-General  of        Police  simply dismissed the appeal from that order  or  the        Inspector  General  simply  dismissed  the  application  for        revision.  The original order of dismissal, if there were no        inherent  infirmities  in  it,  was  operative  on  its  own        strength  and it did not gain any greater efficacy from  the        subsequent orders of dismissal of the appeal or the revision        except  for  the specific  purposes  hereinbelow  mentioned.        That  order  of  dismissal having  been  passed  before  the        Constitution  and  rights having accrued  to  the  appellant        State  and  liabilities having attached  to  the  respondent        before  the  Constitution came into  force,  the  subsequent        conferment of jurisdiction and powers on the High Court  can        have   no  retrospective  operation  on  such   rights   and        liabilities.   Even  if  the  order  of  dismissal  of   the        respondent was a nullity on the ground that it was passed by        disregarding  the rules of natural justice, the  High  Court        could  not properly be asked to exercise its newly  acquired        jurisdiction  and powers under Art. 226 to  correct  errors,        irregularities  or  illegalities committed by  the  inferior        departmental   tribunal  before  the  commencement  of   the        Constitution,  for then there will be no limit to its  going        backward  and  that  will certainly  amount  to  giving  the        provisions of Art. 226 a retroactive operation.  This aspect        of  the matter does not appear to have been pressed  in  the        High  Court or adverted to by it. It is only on this  ground        that we are constrained, not without regret, to accept  this        appeal.        The appeal is, therefore, allowed, but in the  circumstances        of the case we make no order as to costs.        613        BOSE J.-With great respect I am unable to agree.        I respectfully agree with my Lord that Janardan Reddy’s case        (1)  must  not be construed to mean that a  High  Court  can        never  interfere  under Art. 226 once a competent  Court  of        appeal has finally decided whether a Court subordinate to it        has  jurisdiction or not in a given matter.  I  also  accept        the position that the Constitution is not retrospective  and        that  the  Courts cannot exercise any new  jurisdiction  and        powers  conferred by it to reopen decisions and orders  that        had  become final before it came into being.  But  I  cannot        agree that is the case here.        The  very wide powers conferred on the High Courts  by  Art.        226,  and on this Court by Art. 136, were given in order  to        ensure  that justice is done in this land and that the  Rule        of  Law prevails.  I see no reason why any narrow  or  ultra        technical  restrictions should be placed on  them.   Justice        should,  in my opinion, be administered in our Courts  in  a

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      common-sense liberal way and be broad-based on human  values        rather  than on narrow and restricted considerations  hedged        round with hairsplitting technicalities.        What is the position here ? What would have been the  result        if  the order of April 20, 1948, dismissing  the  respondent        had been passed after the Constitution instead of before  it        ?  At  what  point  of  time  would  the  High  Court   have        entertained a petition under Art. 226 ?        I  think it is elementary that, save in  exceptional  cases,        the  Courts  will  not interfere under Art.  226  until  all        normal   remedies  available  to  a  petitioner  have   been        exhausted.   The normal remedies in a case of this kind  are        appeal  and  revision.   It  is true that  on  a  matter  of        jurisdiction, or on a question that goes to the root of  the        case, the High Courts can entertain a petition at an earlier        stage  but they are not bound to do so and a petition  would        not be thrown out because the petitioner had done that which        the Courts usually direct him to do, namely, to exhaust  his        normal    remedies   before   invoking   an    extraordinary        jurisdiction.  Therefore, if this order of dismissal had        (1)[1951]   S.C.R.344.        614        been made after the Constitution, the petitioner would  have        been expected to pursue his remedies of appeal and  revision        first  and  could  not have come to the High  Court  in  the        ordinary way until he had exhausted them; and having come at        that stage he could not have been turned away unheard on the        ground  that  he was out of time because his  grievance  was        against the original order.  The very decisions to which  my        Lord has referred establish that for these purposes, at  any        rate, the earlier orders would merge in the final one.   But        I  am not basing on technicalities.  What is plain to me  is        that  if  this order of dismissal had been  made  after  the        Constitution,  the  petitioner would have been  entitled  to        wait for the final order (and in the ordinary way would have        been bound to wait) before coming to the High Court.  Why is        the  position any different because he has done  before  the        Constitution  exactly what he would have been expected,  and        in the ordinary course bound, to do after it ?        The  final order was passed after the Constitution on  April        22, 1950.  It is true that if it had been passed before  the        Constitution  came  into  force on  January  26,  1950,  the        petitioner would have had no remedy in the Courts.  But  the        Constitution   breathed  fresh  life  into  this  land   and        conferred precious rights and privileges that were not there        before.  Why should they be viewed narrowly ? Why should not        that  which  would have been regarded as still  pending  for        present   purposes,   if  all  had  been  done   after   the        Constitution,  be  construed in any different way  when  the        final act, which is the decisive one for these purposes, was        done after it ?        I regard it as unduly narrow and restrictive to equate these        broad-based  constitutional privileges to  highly  technical        procedural decisions dealing with limitation and the  merger        of  decrees.  The question to my mind is not  whether  there        has  been merger but whether those proceedings can,  on  any        broad and commons view, be regarded as still pending for the        purposes of Art. 226.  If they would be so regarded when all        is  done  after the Constitution (and about that I  have  no        doubt), what conceivable justification is there for        615        holding that they cannot in this case just because a part of        the process had started before it ?        The   principle   that  new  rights  conferred   under   the        Constitution  can  be  used  in  pending  proceedings   with

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      devastating  effect has been accepted by this Court in  many        cases.  In Lachmandas Kewalram Ahuja v. The State of  Bombay        (1)  my Lord the Chief Justice, delivering the  judgment  of        the  Court,  pointed  out  at  page  734  that  though   the        Legislature  had power to take away normal rights of,  among        other  things,  transfer  and revision in  a  criminal  case        before the Constitution, that kind of legislation became bad        after the Constitution, even if it bad been enacted  before,        because  of  the  new  rights  conferred  by  Art.  14.  The        principle was also applied in Shree Meenakshi Mills Ltd.  v.        Sri  A. V. Visvanatha Sastri (2), Dhirendra Kumar Mandal  v.        The  Superintendent and Remembrance of Legal Affairs to  the        Government of West Bengal(3), Habeeb Mohamed v. The State of        Hyderabad(4) Syed Casim Razvi v. The State of Hyderabad  (5)        and  Keshavan  Madhava  Menon v. The State  of  Bombay  (6).        These  cases are not exactly in point but the  principle  is        there and it is that principle that I invoke here.        On  the  merits  I  am  clear  that  the  appeal  should  be        dismissed.   In the first place, this Court,  following  the        English  decisions,  has decided in Manak Lal  v.  Dr.  Prem        Chand  Singhvi  (7) that the principles of  natural  justice        must be observed not only by Courts proper but also by " all        tribunals  and  bodies  which  are  given  jurisdiction   to        determine judicially the rights of parties"; and if they are        not  observed,  the decision is vitiated.  So  that  is  now        beyond controversy.        Next,  there  can, I think, be no doubt  that  the  District        Superintendent  of  Police, who conducted  the  departmental        trial  and found the respondent guilty, acted in a  judicial        capacity.  The Departmental Rules that require an enquiry in        such cases call the          2,0.7        (1)  [1952) S.C.R. 710.        (2)  [1955] 1 S.C.R. 787, 798.        (3)  [1955] 1 S.C.R. 224,237.        (4)  [1953] S.C.R. 661.        (5)  [1953] S.C.R. 589.        (6)  [1951] 9.C.R. 228.        (7)  A.I.R. 1957 S.C. 425, 429.        616        proceedings  a  trial  and the procedure ,set  out  in  them        indicates  the  judicial  nature of the  enquiry.   So  that        condition is also fulfilled.        Then,  thirdly,  were  the  principles  of  natural  justice        ignored  in  this case ? That also is, I think,  settled  by        authority.        What  happened here ? The District Superintendent of  Police        examined a certain witness in the course of the enquiry.  It        seems that witness’s evidence was considered a vital link in        the chain of evidence against the respondent.  The  District        Superintendent  of  Police reached the conclusion  that  the        witness  had turned hostile.  He may have been  right  about        that,  but  he also considered it necessary to  refute  this        evidence  and  make  good  the  lacunas  by  bringing  other        material  on  record.   Apparently,  no  other  witness  was        available,  so  the District Superintendent of  Police,  who        seems  to  have  had personal  knowledge  about  the  facts,        stepped  down from the Bench and got his testimony  recorded        by  another  authority, once before charge and  again  after        charge, and each time, after that was done, stepped back  on        to  the Bench in order solemnly to decide whether he  should        believe  his  own  testimony in preference to  that  of  the        witness who, in his judgment, had committed perjury and gone        back on the truth.  It hardly matters whether this was  done        in good faith or whether the truth lay that way because  the

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      spectacle  of  a judge hopping on and off the bench  to  act        first  as  judge, then as witness, then as  judge  again  to        determine whether he should believe himself in preference to        another  witness, is startling to say the least.  It  would,        doubtless delight the hearts of a Gilbert and Sullivan Comic        Opera audience but will hardly inspire public confidence  in        the  fairness and impartiality of departmental  trials;  and        certainly  not in the mind of the respondent.   Even  before        the  Constitution,  departmental trials were  instituted  to        instil  a  sense  of security in the  services  and  inspire        confidence  in  the public about the treatment  accorded  to        government servants.  The question in these cases is always:        Whether  it  is  likely to produce, in  the  minds,  of  the        litigant or the public at large a reasonable doubt        617        about the fairness of the administration of justice.  (Manak        Lal v. Dr. Prem Chand) (1).        One of the English cases relied on by this Court in the case        just cited was the House of Lords’ decision in Frome  United        Breweries  CO.  v.  Bath  Justices(2).   At  page  600  Lord        Atkinson cited an instance which is almost on all fours with        the present case.  He said:        "  It could not possibly have been intended by this  statute        to   authorise   a  practice  which  would,  I   think,   be        inconsistent  with  the proper  administration  of  justice-        namely, that a licensing justice, one of the members of  the        compensation authority, should, on a given occasion, descend        from  the Bench, give his evidence on oath, and then  return        to  his  place upon the Bench to give  a  decision  possibly        based on his own evidence.  "        The  matter is, as I said, covered by authority and  I  need        say  no more except that, even if it were not, I would  have        had no hesitation in reaching the same conclusion.        Some  question  arose  about  waiver.   If  the  respondent,        knowing his rights, had acquiesced in the continuance of the        trial  despite  this defect, then, of course, he  would  not        have  been allowed to complain at a later stage.  I  do  not        know whether he was represented by counsel in the enquiry or        whether,  if  he  was not, he was aware that  this  kind  of        action  vitiated the proceedings; nor do I know  whether  he        protested  and  took the point in the appeal  and  revision.        Those papers have not been filed.  But I do know that waiver        is not raised in the grounds of appeal to this Court nor  is        the  point taken in the appellant’s statement of  the  case.        As  this is a question of fact, I, for one, would not  allow        it to be urged at this stage.        I would dismiss the appeal.                                   ORDER.        In  accordance with the opinion of the majority, the  appeal        is allowed.        (1)  A.I.R. 1957 S.C. 425, 429.        (2) (1926) A.C. 586.        618