Full Judgement
Md.Shahabuddin Vs. State of Bihar & Ors. [2010] INSC 220 (25 March 2010)
Judgment
REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.591 OF 2010.
[Arising out of SLP (Crl.) No.1311 of 2008] Md. Shahabuddin .. Appellant Versus State of Bihar & Others .. Respondents
Dalveer Bhandari, J.
1. Leave granted.
2. This appeal is directed against the judgment of the High Court of Judicature at Patna passed in Criminal Writ Jurisdiction Case No.553 of 2006 dated 14.08.2007.
3. The appellant is aggrieved by the notification No.184A dated 20th May, 2006 whereby the Patna High Court in exercise of administrative powers conferred under sub-section (6) of section 9 of the Code of Criminal Procedure , 1973 (hereinafter referred to as "the Code") has been pleased to decide that the premises of the District Jail, Siwan will be the place of sitting of the Court of Sessions for the Sessions Division of Siwan for the expeditious trial of Sessions cases pending against Md. Shahabuddin.
4. The appellant is also aggrieved by the two notifications bearing No.A/Act-01/2006 Part-1452/J corresponding to S.O. No. 80 dated 7.6.2006 and No.A/Act-01/2006 Part-1453/J corresponding to S.O. No.82 dt. 7.6.2006 issued by the State of Bihar at the 2 behest of the High Court of Patna. The State of Bihar has established a Court of Judicial Magistrate 1st Class inside the District Jail, Siwan and directed that:
(a) the Court of Judicial Magistrate 1st Class, Siwan shall now hold its sitting inside the District Jail Siwan for trial of cases pending against the appellant Md. Shahabuddin in the Court of Judicial Magistrate 1st Class; and (b) This notification shall come into force with effect from the 7th June, 2006.
5. The appellant is further aggrieved by another notification issued on the same day by which the court of the Additional District & Sessions Judge of Siwan Sessions Division was directed to now hold its sitting inside the District Jail, Siwan to try Sessions cases pending against the appellant Md. Shahabuddin.
6. Mr. Ram Jethmalani, learned senior counsel appearing for the appellant canvassed the following propositions of law;
(a) That in pending criminal cases of which cognizance had been taken and even evidence had been recorded can only be shifted to another venue by the trial court after satisfying the conditions laid down in Section 9(6) of the Code.
(b) That the High Court's administrative power of creating a court is not applicable for transferring a case from one court to another. A new court with its own defined jurisdiction can be created for the public generally, or for specified class of cases generally but not for cases in which a particular citizen is involved. The High Court missed the significance of the word `ordinarily' in Section 9(6) of the Code.
(c) That the administrative power of the High Court can only be exercised where the principle of audi alteram partem does not 3 apply. In all situations where an order affects the interests of a party in a pending case, this power is not available. That power can only be exercised under section 408 of the Code after hearing the affected parties. It is settled law that even administrative orders are subject to the rule of audi alteram partem and by not hearing the appellant before transferring of the venue of cases had led to infringement of the fundamental rights of the appellant under Articles 14 and 21 of the Constitution.
(d) That the administrative power is not available merely to expedite the trial of a particular case. Expedition is necessary for all cases. The High Court did not act in the interest of expedition but really for terrorizing witnesses into giving evidence which suited the prosecution.
(e) That the three notifications read together show that the action was taken by the State Government and the High Court has merely concurred with it. All the three notifications are thus without jurisdiction and void.
7. Mr. Jethmalani has drawn our attention to the relevant part of Section 9(6) of the Code which reads as under:
"9. Court of Session.-- x x x (6) The Court of Sessions shall ordinarily hold its sitting at such place or places as the High Court may, by notification, specify; but, if, in any particular case, the Court of Session is of opinion that it will tend to the general convenience of the parties and witnesses to hold its sittings at any other place in the sessions division, it may, with the consent of the prosecution and the accused, sit at that place for the disposal of the case or the examination of any witness or witnesses therein."
8. Mr. Jethmalani submitted that the power of changing the venue is vested exclusively with the High Court and the State 4 Government has no say in the matter.
9. The power under Section 9(6) of the Code cannot be exercised for a particular individual or accused and if it has to be exercised for one individual, then according to the principle of audi alteram partem, he has to be given hearing. Admittedly, no such hearing was given to the accused in this case.
10. Mr. Jethmalani referred to Section 407 of the Code which reads as under:
"407. Power of High Court to transfer cases and appeals.-- (1) Whenever it is made to appear to the High Court-- (a) that a fair and impartial inquiry or trial cannot be had in any Criminal Court subordinate thereto, or (b) that some question of law of unusual difficulty is likely to arise; or (c) that an order under this section is required by any provision of this Code, or will tend to the general convenience of the parties or witnesses, or is expedient for the ends of justice, it may order-- (i) that any offence be inquired into or tried by any Court not qualified under sections 177 to 185 (both inclusive), but in other respects competent to inquire into or try such offence;
(ii) that any particular, or appeal, or class of cases or appeals, be transferred from a Criminal Court subordinate to its authority to any other such Criminal Court of equal or superior jurisdiction;
(iii)that any particular case be committed for trial of to a Court of Session; or (iv) that any particular case or appeal be transferred to and tried before itself.
(2) The High Court may act either on the report of the lower Court, or on the application of a party interested, or on its own initiative:
Provided that no application shall lie to the High Court 5 for transferring a case from one Criminal Court to another Criminal Court in the same sessions division, unless an application for such transfer has been made to the Sessions Judge and rejected by him.
(3) Every application for an order under sub-section (1) shall be made by motion, which shall, except when the applicant is the Advocate-General of the State, be supported by affidavit or affirmation.
(4) When such application is made by an accused person, the High Court may direct him to executive a bond, with or without sureties, for the payment of any compensation which the High Court may award under sub-section (7).
(5) Every accused person making such application shall give to the Public Prosecutor notice in writing of the application, together with a copy of the grounds on which it is made; and no order shall be made on the merits of the application unless at least-twenty-four hours have elapsed between the giving of such notice and the hearing of the application.
(6) Where the application is for the transfer of a case of appeal from any subordinate Court, the High Court may, if it is satisfied that it is necessary so to do in the interests of justice, order that, pending the disposal of the application, the proceedings in the subordinate Court shall be stayed, on such terms as the High Court may think fit to impose:
Provided that such stay shall not affect the subordinate Court's power of remand under section 309.
(7) Where an application for an order under sub-section (1) is dismissed, the High Court may, if it is of opinion that the application was frivolous or vexatious, order the applicant to pay by way of compensation to any person who has opposed the application such sum not exceeding one thousand rupees as it may consider proper in the circumstances of the case.
(8) When the High Court orders under sub-section (1) that a case be transferred from any Court for trial before itself, it shall observe in such trial the same procedure which that Court would have observed if the case had not been so transferred.
(9) Nothing in this section shall be deemed to affect any order of Government under section 197."
11. Mr. Jethmalani further submitted that power under Section 407 of the Code can be exercised after hearing all the concerned 6 parties. He heavily relied on the judgment of this court in State of West Bengal v. Anwar Ali Sarkar & Another AIR 1952 SC 75 and particularly placed reliance on para 37 which reads as under:
"37. Speedier trial of offences may be the reason and motive for the legislation but it does not amount either to a classification of offences or of cases. As pointed out by Chakravarti J. the necessity of a speedy trial is too vague and uncertain a criterion to form the basis of a valid and reasonable classification. In the words of Das Gupta J., it is too indefinite as there can hardly be any definite objective test to determine it. In my opinion, it is no classification at all in the real sense of the term as it is not based on any characteristics which are peculiar to persons or to cases which are to be subject to the special procedure prescribed by the Act.
The mere fact of classification is not sufficient to relieve a statute from the reach of the equality clause of Article 14. To get out of its reach it must appear that not only a classification has been made but also that it is one based upon a reasonable ground on some difference which bears a just and proper relation to the attempted classification and is not a mere arbitrary selection. Persons concerned in offences or cases needing so-called speedier trial are entitled to inquire "Why are they being made the subject of a law which has short-circuited the normal procedure of trial; why has it grouped them in that category and why has the law deprived them of the protection and safeguards which are allowed in the case of accused tried under the procedure mentioned in the Criminal Procedure Code; what makes the legislature or the executive to think that their cases need speedier trial than those of others like them?"
12. He further contended that the Act gives special treatment because they need it in the opinion of the provincial government;
in other words, because such is the choice of their prosecutor.
This answer is neither rational nor reasonable. The only answer for withholding from such person the protection of Article 14 of the Constitution that could reasonably be given to these inquiries would be that "Of all other accused persons they are a class by themselves and there is a reasonable difference between them and those other persons who may have committed similar offences." They could be told that the law regards persons guilty of offences against the security of the State as a class in themselves. The Code of Criminal Procedure has by the process of classification prescribed different modes of procedure for trial 7 of different offences. Minor offences can be summarily tried, while for grave and heinous offences an elaborate mode of procedure has been laid down.
13. The present statute suggests no reasonable basis or classification, either in respect of offences or in respect of cases. It has not laid down any yardstick or measure for the grouping either of persons or of cases or of offences by which measuring these groups could be distinguished from those who are outside the purview of the Special Act. The Act has left this matter entirely to the unregulated discretion of the provincial government. It has the power to pick out a case of a person similarly situate and hand it over to the special tribunal and leave the case of the other person in the same circumstance to be tried by the procedure laid down in the Code. The State Government is authorized, if it so chooses, to hand over an ordinary case of simple hurt to the special tribunal, leaving the case of dacoity with murder to be tried in the ordinary way. It is open under this Act for the provincial government to direct that a case of dacoity with firearms and accompanied by murder, where the persons killed are Europeans, be tried by the Special Court, while exactly similar cases where the persons killed are Indians may be tried under the procedure of the Code.
14. According to the learned senior counsel, the appellant cannot be denied the trial in an open court where there is presence of free media. He has also placed reliance on Cora Lillian McPherson v. Oran Leo McPherson AIR 1936 Privy Council 246 wherein it is held that "Every Court of Justice is open to every subject of the King." (Ref.: Scott & Anr. v. Scott (1913) A C 417). Publicity is the authentic hall-mark of judicial as distinct from administrative procedure, and it can be safely hazarded that the trial of a divorce suit, a suit not entertained by the old Ecclesiastical Courts at all, is not within any exception.
15. Mr. Jethmalani placed strong reliance on the observation of the US Supreme Court in Richmond Newspapers, Inc. et al v. Commonwealth of Virginia et al 65L Ed 2d 973 = (1980) 448 US 555.
One of the most conspicuous features of English justice, that all judicial trials are held in open court, to which the public have free access, . . . appears to have been the rule in England from time immemorial. This was mentioned by F. Pollock, The Expansion of the Common Law 31-32 (1904). [See also: E. Jenks, The Book of English Law 73-74 (6th ed 1967)].
16. The learned senior counsel for the appellant further relied upon the following passages of the Richmond's case (supra):
17. (Page 983) In some instances, the openness of trials was explicitly recognized as part of the fundamental law of the Colony. The 1677 Concessions and Agreements of West New Jersey, for example, provided:
"That in all public courts of justice for trials of causes, civil or criminal, any person or persons, inhabitants of the said Province may freely come into, and attend the said courts, and hear and be present, at all or any such trials as shall be there had or passed, that justice may not be done in a corner nor in any covert manner." [Reprinted in Sources of Our Liberties 188 (R. Perry ed.1959). See also 1 B. Schwartz, The Bill of Rights: A Documentary History 129 (1971).]
18. (Page 985) Jeremy Bentham not only recognized the therapeutic value of open justice but regarded it as the keystone:
"Without publicity, all other checks are insufficient: in comparison of publicity, all other checks are of small account.
Recordation, appeal, whatever other institutions might present themselves in the character of checks, would be found to operate rather as cloaks than checks; as cloaks in reality, as checks 9 only in appearance." J. Bentham Rationale of Judicial Evidence 524 (1827).
19. (Page 985) The early history of open trials in part reflects the widespread acknowledgment, long before there were behavioral scientists, that public trials had significant community therapeutic value.
20. (Pages 985-986) When a shocking crime occurs, a community reaction of outrage and public protest often follows. [See H. Weihofen, The Urge to Punish 130-131 (1956)]. Thereafter the open processes of justice serve an important prophylactic purpose, providing an outlet for community concern, hostility, and emotion. Without an awareness that society's responses to criminal conduct are underway, natural human reactions of outrage and protest are frustrated, and may manifest themselves in some form of vengeful "self-help," as indeed they did regularly in the activities of vigilante "committees" on our frontiers. "The accusation and conviction or acquittal, as much perhaps as the execution of punishment, operate to restore the imbalance which was created by the offense or public charge, to reaffirm the temporarily lost feeling of security and, perhaps, to satisfy that latent 'urge to punish.'" Mueller, Problems Posed by Publicity to Crime and Criminal Proceedings, 110 U Pa L Rev 1, 6 (1961)."
21. (Page 987) From this unbroken, uncontradicted history, supported by reasons as valid today as in centuries past, we are bound to conclude that a presumption of openness inheres in the very nature of a criminal trial under our system of justice. This conclusion is hardly novel; without a direct holding on the issue, the Court has voiced its recognition of it in a variety of contexts over the years.
22. (Page 999) This Court too has persistently defended the public character of the trial process. In re Oliver established that the Due Process Clause of the Fourteenth Amendment forbids closed criminal trials. Noting the "universal rule against secret trials," 333 U.S. at 266, 92 L Ed 682, 68 S Ct 499, the Court held that "In view of this nation's historic distrust of secret proceedings, their inherent dangers to freedom, and the universal requirement of our federal and state governments that criminal trials be public, the Fourteenth Amendment's guarantee that no one shall be deprived of his liberty without due process of law means, at least, that an accused cannot be thus sentenced to prison." Id., at 273, 92 L Ed 682, 68 S Ct 499.
23. (Page 1000) Tradition, contemporaneous state practice, and this Court's own decisions manifest a common understanding that "[a] trial is a public event. What transpires in the court room is public property." Craig v. Harney, 331 US 367, 374, 91 L Ed 1546, 67 S Ct 1249 (1947).
24. (Page 1000-1001) Publicity serves to advance several of the particular purposes of the trial (and, indeed, the judicial) process. Open trials play a fundamental role in furthering the efforts of our judicial system to assure the criminal defendant a fair and accurate adjudication of guilt or innocence. [See, e.g., Estes v. Texas, 381 U.S., at 538-539, 14 L Ed 2nd 543, 85 S Ct 1628]. But, as a feature of our governing system of justice, the trial process serves other, broadly political, interests, and public access advances these objectives as well. To that extent, trial access possesses specific structural significance.
25. (Page 1001) Secrecy is profoundly inimical to this demonstrative purpose of the trial process. Open trials assure the public that procedural rights are respected, and that justice is afforded equally. Closed trials breed suspicion of prejudice 11 and arbitrariness, which in turn spawns disrespect for law.
26. Public access is essential, therefore, if trial adjudication is to achieve the objective of maintaining public confidence in the administration of justice. [See Gannett, supra at 428-429, 61 L Ed 2d 608, 99 S Ct 2898 (Blackmum, J., concurring and dissenting).
27. (Page 1003) Shrewd legal observers have averred that:
"open examination of witnesses viva voce, in the presence of all mankind, is much more conducive to the clearing up of truth than the private and secret examination . . . where a witness may frequently depose that in private which he will be ashamed to testify in a public and solemn tribunal." 3 Blackstone (supra) at *373.
27. Mr. Jethmalani also submitted that Kehar Singh & Others v State (Delhi Administration) (1988) 3 SCC 609 has no relevance in the present case. In the said case, the shifting of the trial in jail was caused because of extraordinary situation which happened after assassination of Mrs. Indira Gandhi and that cannot be compared with the present situation. He placed reliance on the following paragraph:
`204. In Naresh Shridhar Mirajkar v. State of Maharashtra (1966) 3 SCR 744 this Court had an occasion to consider the validity of a judicial verdict of the High Court of Bombay made under the inherent powers. There the learned Judge made an oral order directing the press not to publish the evidence of a witness given in the course of proceedings. That order was challenged by a journalist and others before this Court on the ground that their fundamental rights guaranteed under Article 19(1)(a) and (g) have been violated. Repelling the contention, Gajendragadkar, C.J., speaking for the majority view, said: (SCR pp. 760-61) "The argument that the impugned order affects the fundamental rights of the appellants under Article 19(1), is based on a complete misconception about the true nature and character of judicial process and of judicial decision. . . . But it is singularly inappropriate to assume that a judicial decision pronounced by a judge of competent jurisdiction in or in relation to a matter brought before him for adjudication can affect the fundamental rights of the citizens under Article 19(1). What the 12 judicial decision purports to do is to decide the controversy between the parties brought before the court and nothing more. If this basic and essential aspect of the judicial process is borne in mind, it would be plain that the judicial verdict pronounced by court in or in relation to a matter brought before it for its decisions cannot be said to affect the fundamental rights of citizens under Article 19(1)."
28. Mr. Jethmalani also placed reliance on Union of India & Another v. Tulsiram Patel & Others (1985) 3 SCC 398 para 92 in which this Court relied on E. P. Royappa v. State of Tamil Nadu (1974) 4 SCC 3. Para 85 of the said judgment reads as under:
"... Article 14 is the genus while Article 16 is a species.
Article 16 gives effect to the doctrine of equality in all matters relating to public employment. The basic principle which, therefore, informs both Articles 14 and 16 is equality and inhibition against discrimination. Now, what is the content and reach of this great equalising principle? It is a founding faith, to use the words of Bose, J., `a way of life', and it must not be subjected to a narrow pedantic or lexicographic approach. We cannot countenance any attempt to truncate its all-embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be `cribbed, cabined and confined' within traditional and doctrinaire limits. From a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14, and if it affects any matter relating to public employment, it is also violative of Article 16. Articles 14 and 16 strike at arbitrariness in State action and ensure fairness and equality of treatment. They require that State action must be based on valid relevant principles applicable alike to all similarly situate and it must not be guided by any extraneous or irrelevant considerations because that would be denial of equality. Where the operative reason for State action, as distinguished from motive inducing from the antechamber of the mind, is not legitimate and relevant but is extraneous and outside the area of permissible considerations, it would amount to mala fide exercise of power and that is hit by Articles 14 and
16. Mala fide exercise of power and arbitrariness are different lethal radiations emanating from the same vice: in fact the latter comprehends the former. Both are inhibited by Articles 14 and 16." (emphasis supplied)
29. Mr. Jethmalani further placed reliance on the following 13 paragraph:
"93. Bhagwati, J., reaffirmed in Maneka Gandhi case (1978) 1 SCC 248 what he had said in Royappa case (supra) in these words (at pp. 673-74): (SCC p. 283, para 7):
"Now, the question immediately arises as to what is the requirement of Article 14: what is the content and reach of the great equalising principle enunciated in this article? There can be no doubt that it is a founding faith of the Constitution. It is indeed the pillar on which rests securely the foundation of our democratic republic. And, therefore, it must not be subjected to a narrow, pedantic or lexicographic approach. No attempt should be made to truncate its all embracing scope and meaning, for to do so would be to violate its activist magnitude. Equality is a dynamic concept with many aspects and dimensions and it cannot be imprisoned within traditional and doctrinaire limits.
We must reiterate here what was pointed out by the majority in E.P. Royappa v. State of T.N. namely, that from a positivistic point of view, equality is antithetic to arbitrariness. In fact equality and arbitrariness are sworn enemies; one belongs to the rule of law in a republic, while the other, to the whim and caprice of an absolute monarch. Where an act is arbitrary, it is implicit in it that it is unequal both according to political logic and constitutional law and is therefore violative of Article 14. Article 14 strikes at arbitrariness in State action and ensures fairness and equality of treatment. The principle of reasonableness, which legally as well as philosophically, is an essential element of equality or non-arbitrariness pervades Article 14 like a brooding omnipresence ...."
(emphasis supplied)
30. In the said judgment, Bhagwati, J., further observed (at pp. 676-77): (SCC p. 286, para 10) "Now, if this be the test of applicability of the doctrine of natural justice, there can be no distinction between a quasi- judicial function and an administrative function for this purpose. The aim of both administrative inquiry as well as quasi- judicial inquiry is to arrive at a just decision and if a rule of natural justice is calculated to secure justice, or to put it negatively, to prevent miscarriage of justice, it is difficult to see why it should be applicable to quasi-judicial inquiry and not to administrative inquiry. It must logically apply to both. On what principle can distinction be made between one and the other? Can it be said that the requirement of `fair-play in actions' is any the less in an administrative inquiry than in a quasi- judicial one? Sometimes an unjust decision in an administrative inquiry may have far more serious consequences than a decision in a quasi-judicial inquiry and hence the rules of natural justice must apply equally in an administrative inquiry which entails civil consequences." (emphasis supplied) 14
31. Mr. Jethmalani placed reliance on Delhi Transport Corporation v. D.T.C. Mazdoor Congress & Others 1991 (Supp) 1 SCC 600 wherein vide paras 166, 167 and 168, this Court observed thus:
"166. It is well settled that even if there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual the duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action.
167. An order impounding a passport must be made quasi- judicially. This was not done in the present case. It cannot be said that a good enough reason has been shown to exist for impounding the passport of the appellant. The appellant had no opportunity of showing that the ground for impounding it given in this Court either does not exist or has no bearing on public interest or that the public interest can be better served in some other manner. The order should be quashed and the respondent should be directed to give an opportunity to the appellant to show cause against any proposed action on such grounds as may be available.
168. Even executive authorities when taking administrative action which involves any deprivation of or restriction on inherent fundamental rights of citizens must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice."
32. Reliance was also placed on D.K. Yadav v. J.M.A. Industries Ltd. (1993) 3 SCC 259, wherein vide para 10, the court observed thus:
"10. In State of W.B. v. Anwar Ali Sarkar AIR 1952 SC 75 per majority, a seven-Judge Bench held that the rule of procedure laid down by law comes as much within the purview of Article 14 of the Constitution as any rule of substantive law. In Maneka Gandhi v. Union of India (1978) 1 SCC 248 another Bench of seven Judges held that the substantive and procedural laws and action taken under them will have to pass the test under Article 14. The test of reason and justice cannot be abstract. They cannot be divorced from the needs of the nation. The tests have to be pragmatic otherwise they would cease to be reasonable. The 15 procedure prescribed must be just, fair and reasonable even though there is no specific provision in a statute or rules made thereunder for showing cause against action proposed to be taken against an individual, which affects the right of that individual. The duty to give reasonable opportunity to be heard will be implied from the nature of the function to be performed by the authority which has the power to take punitive or damaging action. Even executive authorities which take administrative action involving any deprivation of or restriction on inherent fundamental rights of citizens, must take care to see that justice is not only done but manifestly appears to be done. They have a duty to proceed in a way which is free from even the appearance of arbitrariness, unreasonableness or unfairness. They have to act in a manner which is patently impartial and meets the requirements of natural justice."
33. Learned counsel for the appellant referred to the case of Krishan Lal v. State of J&K (1994) 4 SCC 422, wherein vide para 28 the court observed thus:
"28. The aforesaid, however, is not sufficient to demand setting aside of the dismissal order in this proceeding itself because what has been stated in ECIL case (1993) 4 SCC 727 in this context would nonetheless apply. This is for the reason that violation of natural justice which was dealt with in that case, also renders an order invalid despite which the Constitution Bench did not concede that the order of dismissal passed without furnishing copy of the inquiry officer's report would be enough to set aside the order. ........."
34. Mr. Ranjit Kumar, learned senior counsel appearing for the State submitted that the appellant is involved in a large number of criminal cases, the details of which are as under:
"(i) Session Trial No. 287/2007 (ii) Session Trial No. 441/2006 (iii)Session Trial No. 419/2006 (iv) Siwan Town P.W. Case No. 11/2001 (v) Ander P.S. case - 41/1999 (vi) Ander P.S. case - 10/1998 (vii)Siwan Muffassil case no. 61/1990 (viii)Session Trial No. 99/1997; and (ix) Session Trial No. 63/2004"
35. Mr. Kumar also submitted that even by transferring the trial, no prejudice whatsoever has been caused to the appellant.
He submitted that the venue is just one kilometer away from the 16 Sessions Court, therefore, no inconvenience or prejudice is caused to any one. No one has been denied entry. On the contrary, a large number of advocates and press people have attended the hearings and they have been regularly reporting this matter. He also referred to the notification dated 20 th May, 2006 issued by the Patna High Court by which trial pending against the appellant has been expedited. The notification reads as under:
"No.184A:- In exercise of powers conferred under sub-section (6) of Section 9 of the Criminal Procedure Code, 1973, the High Court has been pleased to decide that the premises of the District Jail, Siwan will be the place of sitting of Court of Sessions for the Sessions Division of Siwan for expeditious trial of sessions cases pending against Md. Sahabuddin.
By Order of the High Court Sd/- Registrar General Memo No.5146-49 dated, Patna the 20th May, 2006.
Copy forwarded to the District and Sessions Judge, Siwan/The Chief Judicial Magistrate, Siwan/ The Secretary to the Government of Bihar, Law (Judicial) Department, Patna/The Secretary to the Government of Bihar, Department of Personnel and Administrative Reforms, Patna for information and necessary action.
By Order of the High Court Sd/- Registrar General"
36. Mr. Kumar, learned senior counsel further submitted that the two notifications were subsequently issued by the Government of Bihar because the premises were not under the control of the High Court. Where the premises are not under the control of the High Court, the notification has also to be issued by the State Government. The establishment of the court can be done by the State Government in consultation with the High Court. He referred to the notification dated 20.5.2006 and notifications corresponding to S.O. Nos.80 and 82 both dated 7.6.2006. The notifications establishing the court were issued in consonance with the scheme of the Act.
37. Mr. Ranjit Kumar has drawn our attention to the counter affidavit filed by the State in extenso. In the said counter affidavit filed by the State it is mentioned that the reign of terror created by the appellant and his `private army' in the last two decades is beyond imagination. Some of the notorious crimes committed by the appellant and his gang of criminals and the extent to which he has been interfering with the administration of justice, has been enumerated in the counter affidavit. It would be pertinent to recapitulate the same as under:
" xxx xxx xxx (a) That on 03.5.1996 the petitioner along with his associates fired upon the then Superintendent of Police, Shri S. K. Singhal, IPS with sophisticated arms. In this case, bearing S.T. No. 320/2001, the petitioner and his two associates have been found guilty and sentenced to undergo rigorous imprisonment for 10 years.
(b) That during a raid conducted on 16.03.2001 in the house of the petitioner, the accused-petitioner and his private army fired upon the raiding party and burnt the vehicles of the Deputy Inspector General of Police, Saran Range, District Magistrate Siwan and Superintendent of Police Siwan. These criminals fired more than 100 rounds of ammunition from arms including AK 47 and AK 56 etc. In that firing, one constable was killed and several constables were injured. In this raid, huge quantity of ammunitions were recovered from the house of the accused. An FIR bearing Case No. 32 of 2001 was registered in the Hussainganj Police Station."
(c) That in another raid conducted in 2005 on the order of the Bihar Military Force-I, a large number of arms and ammunition and other articles were recovered from the house of the accused.
Pursuant to this raid, an FIR bearing Case Nos. 41 to 44/2005 was registered in the Hussainganj Police Station.
(d) That when the petitioner was being shifted from Siwan Jail to Beur Jail Patna pursuant to his arrest on 10.02.2005, the petitioner did not sit in the vehicle of the Jail Administration and forcibly sat in a private vehicle. He first visited his village home at Pratapur in flagrant violation of the directions of the jail administration and the police escort party. All along 18 the way he did as he chose and before finally arriving at the Beur Jail Patna, he even visited his relative and minister Sh. Izazul Haq at the government quarter. Resistance of the escorting police party were brushed aside by threatening them with dire consequences and use of brute force to carryout the above illegal acts.
(e) That in Sessions Trial No. 63 of 2002 accused and his gang fired upon Munna Choudhary. He was kidnapped in injured conditions and was thereafter killed and his body was disposed off. Such was the terror of the accused person that when the case was tried in the general court, 21 prosecution witnesses including the parents and sisters of the deceased as well as the investigating officers turned hostile due to fear created by the petitioner. Presently, this case is being tried in the Court at Siwan Jail, where the father and mother of the deceased have filed their affidavits stating that they were coerced and threatened by the petitioner and his gang, therefore, they could not depose against him.
(f) That the distance between the District Court Siwan and the Court at Siwan Jail is about one kilometer. From the jail gate to District Court there is one way which passes through narrow bridge over a river. This area is densely populated and is a market area of the town. Whenever, the accused was produced in the District Court in the past, there used to be large gathering of criminals. It was always very difficult for the District Administration to control the situation. During the trial, thousands of criminals and armed men used to enter District Court premises and also inside the Court Room in support of the accused and created an atmosphere of terror in the minds of the prosecution witnesses. Consequently, no one dared to depose truthfully against the accused which led to his acquittal in more than 16 cases, one after the other.
(g) That prior to the constitution of the Court in the jail premises, when the petitioner was remanded to Siwan Jail in various criminal cases from time to time, he never co-operated and got himself produced in the concerned court, situated about one kilometer away from Siwan Jail, on the dates fixed for his appearance. Perusal of the order sheet of 9 cases which are undergoing trial in the Court shows that on only 24% occasions, the petitioner co-operated and got himself produced in the trial courts situated in court campus Siwan. On 76% occasions, he did not cooperate and consequently could not be produced from the Jail before the various trial courts. It is apparent that in most of them, the petitioner appeared before the Trial Court only once, at the time of remand or when he surrendered before the Court for getting himself remanded in the case. On several subsequent occasions, on one pretext or the other, he did not appear before the concerned court despite being in Siwan Jail."
38. It is also incorporated in the counter affidavit filed by the State that by the criminal acts of the appellant reign of terror had spread. The appellant has also earned enemies who would like to seize upon an opportunity and endanger his life if the trial is conducted in general court. Simultaneously, criminals owing allegiance to the appellant are likely to create law and order problem including communal tension and endanger the life of the common public during his trial in general court.
39. It is further incorporated in the counter affidavit that in view of the aforementioned background and after assessing the entire situation, the then District Magistrate, Siwan informed the State Government that trial is not possible in the District Court of Siwan against the accused person. Pursuant to the report of the District Magistrate, the Law Secretary, Government of Bihar made a request to the Patna High Court for designation of Court of Sessions and Court of Judicial Magistrate, 1st Class inside the Siwan Jail Premises for expeditious trial of the cases pending against the appellant. After evaluating and assessing the entire situation, the notification was issued by the Patna High Court as also by the State Government with the consultation of Patna High Court for sitting and establishment of courts for expeditious trial of cases pending against the appellant.
40. Mr. Ranjit Kumar next submitted that Notification No. 184A dated 20.5.2006 was issued by the Patna High Court in exercise of its power conferred under section 9(6) of the Code.
Mr. Kumar further submitted that Section 9(6) is in two parts.
First part pertains to the statutory power of the High Court and the Second part pertains to the judicial power of the Sessions Court. Notification No.184A dt.20.05.2006 pertains to the first part.
41. According to the learned counsel for the State, the audi 20 alteram partem rule would not be applicable to the first part but the second part. Therefore, the challenge by the appellant on the ground of breach of the audi alteram partem rule is unsustainable.
42. Mr. Kumar further submitted that immediately after the notification on 20.5.2006, on the same day, the High Court through its Registrar General wrote a letter asking for the State of Bihar to publish the notification in the official gazette.
Delay in the publication was not at the instance of the High Court. The appellant could not assail the notification of the High Court on this ground as no such plea or ground was raised either in the High Court or in this appeal.
43. Mr. Kumar also contended that the court inside the Jail was created by the High Court through its Notification dated 20.05.2006. Since the jail premises did not belong to the High Court, the State of Bihar issued two Notifications dated 7.6.2006 to facilitate the smooth functioning of the said court which had been created by the High Court. In any case, the administrative/statutory orders made by the High Court are given effect to by the State Government (e.g. appointments, terminations, dismissals, retirements etc.)
44. Mr. Kumar further contended that the Sessions Court was created by the State and not by the High Court is contrary to the record. The notification dt.7.6.2006 makes it clear that it was issued in pursuance to Notification No.184A dated 20.5.2006 of the Patna High Court.
45. Mr. Kumar also brought to the attention of the court that the appellant has faced trials in 43 cases before the Magistrates and the Sessions' Courts. Out of the 30 cases before the Magistrates, he has been convicted in 3 and acquitted in 1 and 26 remaining cases are pending. Out of the 13 cases before the Sessions, he has been convicted in 3, acquitted in 3 and 7 cases 21 are still pending.
46. Mr. Kumar also contended that the Court premises inside the Jail are open to all. The appellant is being represented through 38 lawyers. Apart from all his lawyers and every other person wanting to attend has been allowed to do so. The press and the public have also been allowed entry. In fact, the appellant and his supporters had objected to the presence of the reporters. Therefore, the allegation of denial of a fair and open trial is devoid of any substance.
47. Mr. Kumar further submitted that the appellant is a notorious criminal and it is virtually impossible to hold his trials in the normal court premises. The atmosphere of terror let loose by the appellant and his supporters had jeopardized the functioning of the court warranting trials of his cases inside the jail. The Superintendent of Police formed an opinion and forwarded it to the District Magistrate. The State drew the attention of the High Court and the High Court decided to act on it. There is nothing sinister or clandestine in this. The opening and the closing lines of the opinion forwarded by the Superintendent of Police of the District to the District Magistrate speak of the desire of the High Court qua trial of the appellant.
48. He further submitted that during the course of the hearing, the appellant was permitted inspection of the High Court records. Based on it, the appellant has set out a new case during the course of arguments in rejoinder.
49. According to the learned counsel for the State, the submission of the appellant that there was variance between the Notification No. 184A in English and the Notification No.184 Ni in Hindi is wholly untenable. (This has been explained both by the State and the High Court to mean `appointment' in English and 22 `niyukti' in Hindi.)
50. Learned counsel for the State further submitted that the contention of the appellant that absence of a serial order in the publication of 16.8.2006 makes it suspicious is also unsustainable.
51. Mr. Kumar also contended that the State Government issued notifications for establishing courts in jail only after issuance of the Notification No. 184A dated 20.5.2006 by the High Court is fully proved from the following correspondence:
a. Letter No.5137 dated 20th May 2006 from the Registrar General to the Secretary, Department of Personnel and Administrative Reforms, State of Bihar, requesting that the State Government be moved to issue the necessary notification to give effect to the transfer to Siwan of one Shri Gyaneshar Singh as Additional and District Sessions Judge in the Court being constituted inside the District Jail, Siwan for expediting the trial for sessions case pending for trail against the appellant.
b. Letter No.5138 dated 20th May, 2006 was sent to the Law Secretary as a copy of the letter at Sl.No.1.
c. Letter No.5139 was addressed to the Secretary, Law Department by the Registrar General dated 20th May, 2006 informing that the High Court had considered the matter regarding establishment of a Special Court of Judicial Magistrate, First Class inside the District Jail, Siwan and expedite the 23 proposal of the State Government for such establishment for trial of cases pending against the appellant.
d. Letter No.5140 dated 20th May, 2006 was a copy of the aforesaid letter at Sl.No.3 forwarded to the Secretary, Department of Personnel and Administrative Reforms for information and necessary action.
e. Letter No.5141 of 20th May, 2006 was written to the Secretary, Government of Bihar, Department of Personnel and Administrative Reforms requesting that Shri Vishwa Vibhuti Gupta, Judicial Magistrate First Class, Siwan designated as presiding officer of the Judicial Magistrate First Class being constituted inside the District Jail, Siwan for expeditious trial of pending cases of the appellant.
f. The Letter No.5142 of 20th May, 2006 being the copy of the letter at Sl.No.5 was sent to the Secretary (Law), Judicial Department for information and necessary action.
g. Letter No.5143 dated 20th May 2006 was addressed by the High Court to the Secretary (Law), Judicial Department informing that the High Court having considered the matter was pleased to accept the proposal of the State Government for establishment of a special court of Additional District and Sessions Judge inside the District Jail, Siwan for expeditious trial of cases against the 24 appellant.
h. Letter No.5144 dated 20th May 2006 being the copy of letter at Sl.No.7 was sent by the High Court to the Secretary, Department of Personnel and Administrative Reforms for information and necessary action.
i. Letter No.5145 dated 20th May, 2006 was sent by the Registrar General of the High Court to Superintendent, Government Printing Press, Gulzarbagh for publication of the notification No.184A dated 20th May, 2006 in the next issue of Bihar gazette (copy of this letter was also submitted by the Counsel for appellant in the High Court during the course of hearing on the last day).
j. The Patna High Court notification dated 20th May, 2006 issued under Section 9(6) of the Code was forwarded by the Registrar General of the High Court vide letter Nos.5146-49 of even date to the District and Sessions Judge/The Chief Judicial Magistrate, Siwan/Secretary to the Government of Bihar (Law), Judicial Department, the Secretary, Department of Personnel and Administrative Reforms for information and necessary action.
52. It will, thus, be seen from the above chronology that after the High Court took the decision to establish a Court of Additional District and Sessions Judge and of the Judicial Magistrate First Class in the Siwan District Jail, necessary correspondence/instruments/requests were sent by the High Court for implementation of the decision of the High Court in seriatim 25 from letter Sl.Nos.5137-5138, 5139-5140, 5141-5142, 5143-5144, 5145 and 5146-5149. This full series of correspondence to give effect to the decision of the High Court was brought into operation which ultimately culminated in the two Notifications issued by the State Government on 7th June, 2006 respectively and also culminated in the Notification of the 20th May 2006 being gazetted on 16th August, 2006. There is, therefore, no scope for any person, leave alone the appellant, to contend that the decision was not of the High Court or High Court never applied its mind.
53. Learned counsel for the State further submitted that the argument that Section 462 of the Code only deals with a wrong court and not a wrong place is untenable. A reading of Section 462 categorically shows that the title of the section speaks of proceedings in wrong place but the substantive portion of the Section speaks of the wrong Sessions Division, District, Sub- Division or other local area, unless it appears that such an error in fact occasioned a failure of justice.
54. The decision rendered in State of Karnataka v. Kuppuswamy Gownder & Others (1987) 2 SCC 74 placed before the Court fully demolishes the contention of the appellant. Further, in any case the court of the Sessions Division within the compound of the Siwan Jail is not a wrong place for the purpose of holding the trial. The same has been duly notified.
55. The argument qua Section 465 Cr.P.C. that the notification dated 20th May, 2006 saying "other proceedings before and during the trial" and therefore, section 465 would not apply is totally devoid of any merit. Firstly, as per the admission of the appellant himself, judicial proceedings against him had started in several cases and trials were going on, and therefore, it would come within the purview of words `before or during the trial'. The emphasis of the State is on `during trial'.
Secondly, the words `other proceedings before and during trial"
26 would include the notification issued by the High Court and given effect to by the State Government by virtue of the constitutional provisions in Chapter-VI of the Constitution relating to Subordinate Court
