The State Of Uttar Pradesh vs Mohammad Nooh on 30 September, 1957

Supreme Court of India

The State Of Uttar Pradesh vs Mohammad Nooh on 30 September, 1957
Equivalent citations: 1958 AIR 86, 1958 SCR 595
Author: V Bose
Bench: Das, Sudhi Ranjan (Cj), Aiyyar, T.L. Venkatarama, Imam, Syed Jaffer, Sarkar, A.K., Bose,
Vivian
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.

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 The State Of Uttar Pradesh vs Mohammad Nooh on 30 September, 1957
The respondent went up in appeal to the Deputy Inspector
General of Police but the appeal was dismissed on May 7,
1949. The

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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 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 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 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, si Xty
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 si Xty 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 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, 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 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 e Xercise 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 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.
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 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 e Xpect 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 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 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 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 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.

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 e Xistence, 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.

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 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.

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 e Xercise 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 e Xhausted his
other statutory remedies, if any. But this rule requiring the e Xhaustion 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 E X 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 Re X
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 e Xtravagant
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.

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 e Xercise
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 e Xistence 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.

in favour of a petitioner who has allowed the time to appeal to e Xpire 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 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.

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 e Xercise 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 e X 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 e Xercise 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, 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 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 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 ne Xt
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 e Xecution 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 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.

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 e Xcept 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.

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 e Xercise 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 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 e Xceptional cases, the Courts will not interfere under Art. 226
until all normal remedies available to a petitioner have been e Xhausted. 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.

been made after the Constitution, the petitioner would have been e Xpected 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 e Xpected, 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 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 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.

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 e Xamined 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 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 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.