(1988) 2 SCC 602

A.R. ANTULAY
Vs.
R.S. NAYAK AND ANOTHER

BENCH: SABYASACHI MUKHERJI, RANGANATH MISRA, G.L. OZA, B.C. RAY, S.

NATRAJAN, M.N. VEKANTACHALIAH, S. RANGANATHAN, JJ.

In this case the Judges of the Supreme Court differ in their views.
The Majority view is taken by Sabyasachi Mukherji, Ranganath Misra, G.L. Oza, B.C. Ray and S.
Natarajan JJ.
The Minority view is taken by M.N. Vekantachaliah and S. Ranganathan, JJ.

ORDER DATE: 29.4.1988

SYNOPSIS
The following issues have been delineated hereunder:
1. Whether a case pending before a Special Judge under Sec 7(1) of the Criminal Law
Amendment Act of 1952 can be transferred to a High Court by the Supreme Court?
2. Whether the Supreme Court’s order directing withdrawal of a case against the accused from
the Special Judge and transfer thereof to a High Court violative of Article 14 and 21 of the
Constitution?
3. Whether High Court’s power to transfer and try a case from a Special Judge precluded by
Section 7(1) of the Criminal Law (Amendment) Act, 1952?
4. Whether the writ of Certiorari can be issued by a bench to quash the judicial order of another
bench?
5. Whether a larger bench possesses the power to override a smaller bench?
6. Rule relating to the Interpretation of Statutes.
7. Per incuriam directions and Supreme Court’s power to interfere with it’s earlier order.
8. Whether the Supreme Court possesses the power to determine its own jurisdiction?
9. Scope and Applicability of the maxim—“Actus Curie Neminem Gravabit”.

*The Criminal Law (Amendment) Act Of 1952 has been REPEALED by the
PREVENTION OF CORRUPTION ACT, 1988. (See Section 30 of the Act)

 WHETHER A CASE PENDING BEFORE A SPECIAL JUDGE UNDER SEC 7(1) OF THE
CRIMINAL LAW AMENDMENT ACT OF 1952 CAN BE TRANSFERRED TO A HIGH
COURT BY THE SUPREME COURT.
24. Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of
offences under section 6(1) of the said Act. The condition is that notwithstanding anything
contained in the Code of Criminal Procedure or any other law, the said offences shall be
triable by Special Judges only. (Emphasis supplied). Indeed conferment of the exclusive
jurisdiction of the Special Judge is recognised by the judgment delivered by this Court in
A.R. Antulay v. Ramdas Sriniwas Nayak and another, [1984] 2 S.C.R. 914 where this Court
had adverted to section 7(1) of the 1952 Act and at page 931 observed that section 7 of the
1952 Act conferred exclusive jurisdiction on the Special Judge appointed under section 6 to
try cases set out in section 6(1)(a) and 6(1)(b) of the said Act. The Court emphasised that the
Special Judge had exclusive jurisdiction to try offences enumerated in section 6(1)(a) and (b).
In spite of this while giving directions in the other matter, that is, R.S. Nayak v. A.R. Antulay,
[1984] 2 S.C.R. 495 at page 557, this Court directed transfer to the High Court of Bombay
the cases pending before the Special Judge. It is true that section 7(1) and Section 6 of the
1952 Act were referred to while dealing with the other matters but while dealing with the
matter of directions and giving the impugned directions, it does not appear that the Court kept
in mind the exclusiveness of the jurisdiction of the Special Court to try the offences
enumerated in section 6.

28. It is obvious that if a case could be transferred under section 406 of the Code from a
Special Judge it could only be transferred to another Special Judge or a court of superior
jurisdiction but subordinate to the High Court. No such court exists. Therefore, under this
section the power of transfer can only be from one Special Judge to another Special Judge.
Under section 407 however, corresponding to section 526 of the old Code, it was submitted
the High Court has power to transfer any case to itself for being tried by it.

29. It appears to us that in Gurcharan Das Chadha v. State of Rajasthan, [1966] 2 S.C.R. 678
an identical question arose. The petitioner in that case was a member of an All India Service
serving in the State of Rajasthan. The State Government ordered his trial before the Special
Judge of Bharatpur for offences under section 120B/161 of the Indian Penal Code and under
sections 5(1)(a) and (d) and 5(2) of the Act. He moved this Court under section 527 of the old
Code praying for transfer of his case to another State on various grounds. Section 7(1) of the
Act required the offences involved in that case to be tried by a Special Judge only, and
section 7(2) of the Act required the offences to be tried by a Special Judge for the area within
which these were committed which condition could never be satisfied if there was a transfer.
This Court held that the condition in sub-section (1) of section 7 of the Act that the case must
be tried by a Special Judge, is a sine qua non for the trial of offences under section 6. This
condition can be satisfied by transferring the case from one Special Judge to another Special
Judge. Sub-section (2) of section 7 merely distributes, it was noted, work between Special
Judges appointed in a State with reference to territory. This provision is at par with the
section of the Code which confers territorial jurisdiction on Sessions Judges and magistrates.
An order of transfer by the very nature of things must sometimes result in taking the case out
of the territory. The third sub-section of section 8 of the Act preserves the application of any
provision of the Code if it is not inconsistent with the Act save as provided by the first two
sub-sections of that Section. It was held by this Court that section 527 of the old Code, hence,
remains applicable if it is not inconsistent with section 7(2) of the Act. It was held that there
was no inconsistency between section 527 of the Code and 47 section 7(2) of the Act as the
territorial jurisdiction created by the latter operates in a different sphere and under different
circumstances. Inconsistency can only be found if two provisions of law apply in identical
circumstances, and create contradictions. Such a situation does not arise when either this
Court or the High Court exercises the power of transfer. Therefore, this Court in exercise of
its jurisdiction and power under section 521 of the Code can transfer a case from a Special
Judge subordinate to one High Court to another Special Judge subordinate to another High
Court. It has to be emphasised that that decision was confined to the power under section 527
of the previous Code and to transfer from one Special to another Special Judge though of
another State. It was urged by Shri Jethmalani that Chadha’s case (supra) being one of
transfer from one Special Judge to another the judgment is not an authority for the
proposition that it cannot be transferred to a court other than that of a Special Judge or to the
High Court. But whatever be the position, this is no longer open at this juncture.

34. Section 7 of the 1952 Act provides that notwithstanding anything contained in the Code
of Criminal Procedure, or in any other law the offences specified in sub-section (1) of section
6 shall be triable by Special Judges only. So the law provides for a trial by Special Judge only
and this is notwithstanding anything contained in sections 406 and 407 of the Code of
Criminal Procedure, 1973. Could it, therefore, be accepted that this Court exercised a power
not given to it by Parliament or the Constitution and acted under a power not exercisable by
it? The question that has to be asked and answered is if a case is tried by a Special Judge or a
court subordinate to the High Court against whose order an appeal or a revision would lie-to
the High Court, is transferred by this Court to the High Court and such right of appeal or
revision is taken away would not an accused be in a worse position than others? This Court in
R.S. Nayak v. A.R. Antulay, [1984] 2 S.C.R. 495 did not refer either to section 406 or section
407 of the Code. It is only made dear that if the application had been made to the 49 High
Court under section 407 of the Code, the High Court might have transferred the case to itself.

57. In aid of the submission that procedure for trial evolved in derogation of the right
guaranteed under Article 21 of the Constitution would be bad, reliance was placed on
Attorney General of India v. Lachma Devi and others, [1985] 2 Scale 144. In aid of the
submission on the question of validity our attention was drawn to ’Jurisdiction and Illegality’
by Amnon Rubinstein (1965 Edn.). The Parliament did not grant to the Court the jurisdiction
to transfer a case to the High Court of Bombay. However, as the superior Court is deemed to
have a general jurisdiction, the law presumes that the Court acted within jurisdiction. In the
instant case that presumption cannot be taken, firstly because the question of jurisdiction was
not agitated before the Court, secondly these directions were given per incuriam as mentioned
hereinbefore and thirdly the superior Court alone can set aside an error in its directions when
attention is drawn to that error. This view is warranted only because of peculiar facts and
circumstances of the present case. Here the trial of a citizen in a Special Court under special
jurisdiction is involved, hence, the liberty of the subject is involved. In this connection, it is
instructive to refer to page 126 of Rubinstein’s aforesaid book. It has to be borne in mind that
as in Kuchenmeister v. Home office, [1958] 1 Q.B. 496 here form becomes substance. No
doubt, that being so it must be by decisions and authorities, it appears to us patently clear that
the directions given by this Court on 16th February, 1984 were clearly unwarranted by
constitutional provisions and in derogation of the law enacted by the Parliament. See the
observations of Attorney General v. Herman James Sillem, [1864] 10 H.L.C. 703, where it
was reiterated that the creation of a right to an appeal is an act which requires legislative
authority, neither an inferior Court nor the superior Court or both combined can create such a
right, it being one of limitation and extension of jurisdiction. See also the observations of
Isaacs v. Roberston, [1984] 3 A.E.R. 140 where it was reiterated by Privy Council that if an
order is regular it can be set aside by an appellate Court; if the order is irregular it can be set
aside by the Court that made it on the application being made to that Court either under the
rules of that Court dealing expressly with setting aside orders for irregularity or ex debito
justitiae if the circumstances warranted, namely, violation of the rules of natural justice or
fundamental rights. In Ledgard v. Bull, 13 I.A. 134, it was held that under the old Civil
Procedure Code under section 25 the superior Court could not make an order of transfer of a
case unless the Court from which the transfer was sought to be made, had jurisdiction to try.
In the facts of the instant case, the criminal revision application which was pending before the
High Court even if it was deemed to be transferred to this Court under Article 139A of the
Constitution it would not have vested this Court with power larger than what is contained in
section 407 of Criminal Procedure Code. Under section 407 of the Criminal Procedure Code
read with the Criminal law Amendment Act, the High Court could not transfer to itself
proceedings under sections 6 and 7 of the said Act. This Court by transferring the
proceedings to itself could not have acquired larger jurisdiction. The fact that the objection
was not raised before this Court giving directions on 16th February, 1984 cannot amount to
any waiver. In Meenakshi Naidoo v. Subramaniya Sastri, 14 I.A. 160 it was held that if there
was inherent incompetence in a High Court to deal with all questions before it then consent
could not confer on the High Court any jurisdiction which it never possessed.

J. Ranganath Misra (concurring)

93. The power to transfer a case conferred by the Constitution or by section 406 of the Code of
Criminal Procedure does not specifically relate to the special Court. Section 406 of the Code could
perhaps be applied on the principle that the Special Judge was a subordinate court for transferring a
case from one special Judge to another special Judge. That would he so because such a transfer would
not contravene the mandate of section 7( 1) of the Amending Act of 1952 . While that may be so, the
provisions for transfer, already referred to do not authorise transfer of a case pending in the court of a
special Judge first to the Supreme Court and then to the High Court for trial. A four Judge Bench in
Raja Soap Factory v. S.P. Santharaj, [1956] 2 SCR 800 was considering the jurisdiction of the High
Court to deal with a matter Shah J., as he then was, spoke for the court thus: “But if the learned Judge,
as reported in the summary of the judgment, was of the opinion that the High Court is competent to
assume to itself jurisdiction which it does not otherwise possess, merely because an ’extra-ordinary
situation’ has arisen, with respect to the learned Judge, we are unable to approve of that view. By
’jurisdiction’ is meant the extent of the power which is conferred upon the court by its Constitution to
try a proceeding; its exercise cannot be enlarged because what the learned Judge calls an extra
ordinary situation ’requires’ the Court to exercise it”.

J. Ranganathan (concurring)

199. The attempt of Sri Jethmalani is to bring the present case within the scope of the
observations contained in the latter part of the extract set out above. He submits that a special
judge, except insofar as a specific provision to the contrary is made, is a court subordinate to
the High Court, as explained in 1984 2 S.C.R. 914 (at pages 943-4) and proceedings before
him are subject to the provisions of the 1973 Cr.P.C.; the field of operation of the first
subsection of section 7 is merely to earmark certain Sessions Judges for purposes of trying
cases of corruption by public servants and this provision is, in principle, not different from
the earmarking of cases on the basis of territorial jurisdiction dealt with by sub-section 2 of
section 7. The argument is no doubt a plausible one. It does look somewhat odd to say that a
Sessions Judge can, but a High Court Judge cannot, try an offence under the Act. The object
of the Act, as rightly pointed out by counsel, is only to segregate certain cases to special
courts which will concentrate on such cases so as to expedite their disposal and not to oust
the superior jurisdiction of the High Court or its powers of superintendent over subordinate
courts under article 227 of the Constitution, an aspect only of which is reflected in s. 407 of
the Cr.P.C. However, was the matter to be considered as res integra, I would be inclined to
accept the contention urged on behalf of the appellant, for the following reasons. In the first
place, the argument of the counsel for the respondent runs counter to the observations made
by the Supreme Court in the earlier part of the extract set out above that the first sub-section
of section 7 and the second sub-section are totally different in character. The first sub-section
deals with a sine qua non for the trial of certain offences, whereas the second sub-section is
only of a procedural nature earmarking territorial jurisdiction among persons competent to try
the offence. They are, therefore, vitally different in nature. The Supreme Court has clearly
held in the passage extracted above that the case can be transferred only from one special
judge to another. In other words, while the requirement of territorial jurisdiction is
subordinate to S. 406 or 407, the requirement that the trial should be by a special judge is not.
It is true that those observations are not binding on this larger Bench and moreover the
Supreme Court there was dealing only with an objection based on sub-section (2) of Section
7. It is, however, clear that the Bench, even if it had accepted the transfer petition of
Gurcharan Das Chadha, would have rejected a prayer to transfer the case to a court other than
that of a Special Judge appointed by the transferee State. I am in respectful agreement with
the view taken in that case that there is a vital qualitative difference between the two sub-
sections and that while a case can be transferred to a special judge who may not have the
ordinary territorial jurisdiction over it, a transfer cannot be made to an ordinary magistrate or
a court of session even if it has territorial jurisdiction. If the contention of the learned counsel
for the respondent that s. 7(1) and s. 407 operate in different fields and are not inconsistent
with each other were right, it should be logically possible to say that the High Court can,
under s. 407, transfer a case from a special judge to any other Court of Session. But such a
conclusion would be clearly repugnant to the scheme of the 1952 Act and plainly incorrect. It
is, therefore, difficult to accept the argument of Sri Jethmalani that we should place the
restriction contained in the first sub-section of section 7 also as being on the same footing as
that in the second subsection and hold that the power of transfer contained in the Criminal
Procedure Code can be availed of to transfer a case from a Special Judge to any other
criminal court or even the High Court. The case can be transferred only from one special
judge to another special judge; it cannot be transferred even to a High Court Judge except
where a High Court Judge is appointed as a Special Judge. A power of transfer postulates that
the court to which transfer or withdrawal is sought is competent to exercise jurisdiction over
the case. (vide, Raja Soap Factory v. Shantaraj, [1965] 2 S.C.R. 800).

Per Venkantachaliah, J (dissenting)

155. The exclusiveness of jurisdiction of the special judge under Section 7(1) of 1952 Act, in
turn, depends on the construction to be placed on the relevant statutory provision. If on such a
construction, however erroneous it may be, the court holds that the operation of Sec. 407,
Cr.P.C. is not excluded, that interpretation will denude the plenitude of the exclusivity
claimed for the forum. To say that the court usurped legislative powers and created a new
jurisdiction and a new forum ignores the basic concept of functioning of courts. The power to
interpret laws is the domain and function of courts. Even in regard to the country’s
fundamental-law as a Chief Justice of the Supreme Court of the United States said: “but the
Constitution is what the judges say it is”. In Thomas v. Collins, 323 (1945) US 516 it was
said: “The case confronts us again with the duty our system places on this Court to say where
the individual’s freedom ends and the State’s power begins. Choice on that border, now as
always is, delicate ...”

 WHETHER SUPREME COURT’S ORDER DIRECTING WITHDRAWAL OF CASE

AGAINST THE ACCUSED FROM SPECIAL JUDGE AND TRANSFER THEREOF TO
HIGH COURT VIOLATIVE OF ARTICLE 14 AND 21.

55. .................No prejudice need be proved for enforcing the fundamental rights. Violation of
a fundamental right itself renders the impugned action void. So also the violation of the
principles of natural justice renders the act a nullity. Four valuable rights, it appears to us, of
the appellant have been taken away by the impugned directions;

(i) The right to be tried by a Special Judge in accordance with the procedure established by
law and enacted by Parliament.
(ii) The right of revision to the High Court under section 9 of the Criminal Law Amendment
Act.
(iii)The right of first appeal to the High Court under the same section.
(iv) The right to move the Supreme Court under Article 136 thereafter by way of a second
appeal, if necessary.
41. In the aforesaid view of the matter and the principle reiterated, it is manifest that the
appellant has not been ordered to be tried by a procedure mandated by law, but by a
procedure which was violative of Article 21 of the Constitution. That is violative of Articles
14 and 19 of the Constitution also, as is evident from the observations of the 7 Judges Bench
judgment in Anwar Ali Sarkar’s case (supra) where this Court found that even for a criminal
who was alleged to have committed an offence, a special trial would be per se illegal because
it will deprive the accused of his substantial and valuable privileges of defences which, others
similarly charged, were able to claim. As Justice Vivian Bose observed in the said decision at
page 366 of the report, it matters not whether it was done in good faith, whether it was done
for the convenience of Government, whether the process could be scientifically classified and
labelled, or whether it was an experiment for speedier trial made for the good of society at
large. Justice Bose emphasised that it matters not how lofty and laudable the motives were.
The question which must be examined is, can fair minded, reasonable, unbiased and resolute
men regard that with equanimity and call it reasonable, just and fair, regard it as equal
treatment and protection in the defence of liberties which is expected of a sovereign
democratic republic in the conditions which are obtained in India today. Judged by that view
the singling out of the appellant in this case for a speedier trial by the High Court for an
 offence of which the High Court had no jurisdiction to try under the Act of 1952 was, in our
opinion, unwarranted, unprecedented and the directions given by this Court for the said
purpose, were not warranted. If that is the position, when that fact is brought to our notice we
must remedy the situation. In rectifying the error, no procedural inhibitions should debar this
Court because no person should suffer by reason of any mistake of the Court. The Court, as is
manifest, gave its directions on 16th February, 1984. Here no rule of res judicata would apply
to prevent this Court from entertaining the grievance and giving appropriate directions. In this
connection, reference may be made to the decision of the Gujarat High Court in Soni Vrajlal
Jethalal v. Soni Jadavji Govindji and others [A.I.R. 1972 Guj. 148]. Where D.A. Desai, J.
speaking for the Gujarat High Court observed that no act of the court or irregularity can come
in the way of justice being done and one of the highest and the first duty of all Courts is to
take care that the act of the Court does no in jury to the suitors.
59. Here the appellant has a further right under Article 21 of the Constitution-a right to trial
by a Special Judge under section 7(1) of the 1952 Act which is the procedure established by
law made by the Parliament, and a further right to move the High Court by way of, revision
or first appeal under section 9 of the said Act. He has also a right not to suffer any order
passed behind his back by a Court in violation of the basic principles of natural justice.
Directions having been given in this case as we have seen without hearing the appellant
though it appears from the circumstances that the order was passed in the presence of the
counsel for the appellant, these were bad.

Per Ranganath Misra, J.

96. Mr. Rao for Antulay argued at length and Brother Mukharji has noticed all those
contentions that by the change of the forum of the trial the accused has been prejudiced.
Undoubtedly, by this process he misses a forum of appeal because if the trial was handled by
a Special Judge, the first appeal would lie to the High Court and further appeal by special
leave could come before this Court. If the matter is tried by the High Court there would be
only one forum of appeal being this Court, whether as of right or by way of special leave. The
appellant has also contended that the direction violates Article 14 of the Constitution because
he alone has been singled out and picked up for being treated differently from similarly
placed accused persons. Some of these aspects cannot be overlooked with ease. I must,
however, indicate here that the argument based upon the extended meaning given to the
contents of Article 21 of the Constitution, though attractive have not appealed to me.

 HIGH COURT’S POWER TO TRANSFER AND TRY A CASE BY SPECIAL JUDGE

EXCLUDED BY SEC 7(1) OF THE CRIMINAL LAW (AMENDMENT) ACT, 1952.

56. In this connection Shri Rao rightly submitted that it is no necessary to consider whether
section 374 of the Criminal Procedure Code confers the right of appeal to this Court from the
judgment of a learned Judge of the High Court to whom the case had been assigned inasmuch
as the transfer itself was illegal. One has to consider that section 407 of the Criminal
Procedure Code was subject to the overriding mandate of section 7(1) of the 1952 Act, and
hence, it does not permit the High Court to withdraw a case for trial to itself from the Court
of Special Judge. It was submitted by Shri Rao that even in cases where a case is withdrawn
 by the High Court to itself from a criminal court other than the Court of Special Judge, the
High Court exercised transferred jurisdiction which is different from original jurisdiction
arising out of initiation of the proceedings in the High Court. In any event section 374 of
Criminal Procedure Code limits the right to appeals arising out of clause 24 of the Letters
Patent.

70............... Section 7 states that notwithstanding anything contained in the Code, the
offences mentioned in sub-section (1) of section 6 shall be triable by Special Judges only. By
express terms therefore, it takes the right to transfer cases contained in the Code to any other
Court which is not a Special Court...........

72. Article 134(1)(b) does not recognise in every High Court power to withdraw for trial
cases from any Court subordinate to its authority. At least this Article cannot be construed to
mean where power to withdraw is restricted, it can be widened by virtue of Article 134(1)(b)
of the Constitution. Section 374 of the Code undoubtedly gives a right of appeal. Where by a
specific clause of a specific statute the power is given for trial by the Special Judge only and
transfer can be from one such Judge to another Special Judge, there is no warrant to suggest
that the High Court has power to transfer such a case from a Judge under section 6 of the Act
of 1952 to itself. It is not a case of exclusion of the superior Courts. So the submissions made
on this aspect by Shri Jethmalani are not relevant.

 SCOPE OF WRIT OF CERTIORARI- Whether the writ can be issued by a bench to

quash the judicial order of another bench?

Per Mukharji and Natarajan, JJ. (minority view)

48. ........................... Powers of review can be exercised in a petition file under Article 136 or
Article 32 or under any other provision of the Constitution if the Court is satisfied that its
directions have resulted in the deprivation of the fundamental rights of a citizen or any legal
right of the petitioner.

Per Raganath Misra, J. (dissenting)

100. What remains to be decided is the procedure by which the direction of the 16th of
February, 1984, could be recalled or altered. There can be no doubt that certiorari shall not lie
to quash a judicial order of this Court. That is so on account of the fact that the Benches of
this Court are not subordinate to larger Benches thereof and certiorari is, therefore, not
admissible for quashing of the orders made on the judicial side of the court. Mr. Rao had
relied upon the ratio in the case of Prem Chand Garg v. Excise Commissioner, U.P.,
Allahabad, [1963] 1 SCR 885. Brother Mukharji has dealt with this case at considerable
length. This Court was then dealing with an Article 32 petition which had been filed to
challenge the vires of rule 12 of order 35 of this Court’s Rules. Gajendragadkar, J., as the
learned Judge then was, spoke for himself and three of his learned brethren including the
learned Chief Justice. The facts of the case as appearing from the judgment show that there
was a judicial order directing furnishing of security of Rs.2,500 towards the respondent’s
costs an(l the majority judgment directed

“In the result, the petition is allowed and the order passed against the petitioners on
December 12, 1961, calling upon them to furnish security of Rs.2,500 is set aside.”

Shah, J. who wrote a separate judgment upheld the vires of the rule and directed dismissal of
the petition. The fact that a judicial order was being made the subject matter of a petition
under Article 32 of the Constitution was not noticed and whether such a proceeding was
tenable was not considered. A nine-Judge Bench of this Court in Naresh Shridhar Mirajkar &
Ors. v. State of Maharashtra & Anr., [1966] 3 SCR 744 referred to the judgment in Prem
Chand Garg’s case (supra). Gajendragadkar, CJ., who delivered the leading and majority
judgment stated at page 765 of the Reports:

“ln support of his argument that a judicial decision can be corrected

by this Court in exercise of its writ jurisdiction under Article 32(2),
Mr. Setalvad has relied upon another decision of this Court in Prem
Chand Garg v. Excise Commissioner, U. P. Allahabad (supra) . In
that case, the petitioner had been required to furnish security for the
costs of the respondent under rule 12 of order 35 of the Supreme
Court Rules. By his petition filed under Article 32, he contended that
the rule was invalid as it placed obstructions on the fundamental
right guaranteed under Article 32 to move the Supreme Court for the
enforcement of fundamental rights. This plea was upheld by the
majority decision with the result that the order requiring him to
furnish security was vacated. In appreciating the effect of this
decision, it is necessary to bear in mind the nature of the contentions
raised before the Court in that case. The rule itself, in terms,
conferred discretion on the court while dealing with applications
made under Article 32, to impose such terms as to costs as to the
giving of security as it thinks fit. The learned Solicitor General who
supported the validity of the rule, urged that though the order
requiring security to be deposited may be said to retard or obstruct
the fundamental right of the citizen guaranteed by Article 32(1), the
rule itself could not be effectively challenged as invalid, because it
was merely discretionary; it did not impose an obligation on the
court to demand any security; and he supplemented his argument by
contending that under Article 142 of the Constitution, the powers of
this court were wide enough to impose any term or condition subject
to which proceedings before this Court could be permitted to be
conducted. He suggested that the powers of this Court under Article
142 were not subject to any of the provisions contained in Part III
including Article 32(1). On the other hand, Mr. Pathak who
challenged the validity of the rule, urged that though the rule was in
form and in substance discretionary, he disputed the validity of the
 power which the rule conferred on this Court to demand security. It
would thus be seen that the main controversy in the case of Prem
Chand Garg centered round the question as to whether Article 145
conferred powers on this Court to make rules, though they may be
inconsistent with the constitutional provisions prescribed by Part III.
Once it was held that the powers under Article 142 had to be read
subject not only to the fundamental 87 rights, but to other binding
statutory provisions, it became clear that the rule which authorised
the making of the impugned order was invalid. It was in that context
that the validity of the order had to be incidentally examined. The
petition was made not to challenge the order as such, but to
challenge the validity of the rule under which the order was made.
Once a rule was struck down as being invalid, the order passed under
the said rule had to be vacated. It is difficult to see how this decision
can be pressed into service by Mr. Setalvad in support of the
argument that a judicial order passed by this Court was held to be
subject to the writ jurisdiction of this Court itself.....”

In view of this decision in Mirajkar’s case (supra) it must be taken as concluded that judicial
proceedings in this Court are not subject to the writ jurisdiction thereof.

Per Venkantachaliah, J.

The argument is that the earlier order of the five Judge bench in so far as it violates the
fundamental rights of the appellant under Article 14 and 21 must be held to be void and
amenable to challenge under Article 32 in this very Court and that the decision of this Court
in Premchand Garg’s case (supra) supports such a position. As rightly pointed out by
Ranganath Misra, J. Premchand Garg’s case needs to be understood in the light of the
observations made in Naresh Sridhar Mirajkar & Ors. v. State of Maharashtra & Anr., [ 1966]
3 SCC 744. In Mirajkar’s case, Gajendragadkar, CJ., who had himself delivered the opinion
in Garg’s case, noticed the contention based on Garg’s case thus:

“ln support of his argument that a judicial decision can be corrected by this Court in exercise
of its writ jurisdiction under Article 32(2), Mr. Setalvad has relied upon another decision of
this Court in Prem Chand Garg v. Excise Commissioner, UP, Allahabad (supra)”

 POWER OF LARGER BENCH TO OVERRIDE SMALLER BENCH

43. The principle that the size of the Bench-whether it is comprised of two or three or more
Judges-does not matter, was enunciated in Young v. Bristol Aeroplane Co. Ltd. (supra) and
followed by Justice Chinnappa Reddy in Javed Ahmed Abdul Hamid Pawala v. State of
Maharashtra, [1985] 2 SCR 8 where it has been held that a Division Bench of three Judges
should not overrule a Division Bench of two Judges, has not been followed by our Courts.
According to well settled law and various decisions of this Court, it is also well-settled that a
Full Bench or a Constitution Bench decision as in Anwar Ali Sarkar’s case (supra) was
binding on the Constitution Bench because it was a Bench of 7 Judges.

44. The principle in England that the size of the Bench does not matter, is clearly brought out
in the decision of Evershed M.R. in the case of Morelle v. Wakeling (supra). The law laid
down by this Court is somewhat different. There is a hierarchy within the Court itself here,
where larger Benches overrule smaller Benches. See the observations of this Court in
Mattulal v. Radhe Lal, [1975] 1 SCR 127, Union of India & Anr. v. K.S. Subramanian,
[1977] 1 SCR 87 at page 92 and State of U.P. v. Ram Chandra Trivedi, [1977] 1 SCR 462 at
473. This is the practice followed by this Court and now it is a crystallised rule of law. See in
this connection, as mentioned hereinbefore, the observations of the State of Orissa v.
Titagarh Paper Mills (supra) and also Union of India and others v. Godfrey Philips India
Ltd., [1985] Suppl 3 SCR 123 at 145. In support of the contention that a direction to delete
wholly the impugned direction of this Court be given, reliance was placed on Satyadhvan
Ghoshal v. Deorajini Devi, [1960] 3 SCR 590. The ratio of the decision as it appears from
pages 601 to 603 is that the judgment which does not terminate the proceedings, can be
challenged in an appeal from final proceedings. It may be otherwise if subsequent
proceedings were independent ones.

Per Ranganath Misra, J.

105. It is time to sound a note of caution. This Court under its Rules of Business ordinarily
sits in divisions and not as a whole one. Each Bench, whether small or large, exercises the
powers vested in the Court and decisions rendered by the Benches irrespective of their size
are considered as decisions of the Court. The practice has developed that a larger Bench is
entitled to overrule the decision of a smaller Bench notwithstanding the fact that each of the
decisions is that of the Court. That principle, however, would not apply in the present
situation, and since this Court is sitting as a Bench of Seven this Court is not entitled to
reverse the decision of the Constitutional Bench. Overruling when made by a larger Bench of
an earlier decision of a smaller one is intended to take away the precedent value of the
decision without affecting the binding effect of the decision in the particular case. In the
instant case, the appellant is, therefore, not entitled to take advantage of the matter being
before a larger Bench. In fact, if it is a case of exercise of inherent powers to rectify a mistake
it was open even to a five-Judge Bench to do that and it did not require a Bench larger than
the Constitution Bench for that purpose.

Per Venkanatachaliah, J.
157. The pronouncements of every Division-Bench of this Court are pronouncements of the
Court itself. A larger bench, merely on the strength of its numbers, cannot undo the finality of
the decisions of other division benches. If the decision suffers from an error the only A way
to correct it, is to go in Review under Article 137 read with order 40 Rule I framed under
Article 145 before "as far as is practicable" the same judges. This is not a matter merely of
some dispensable procedural ’form’ but the requirement of substance. The reported decisions
 on the review power under the (Civil Procedure Code when it had a similar provision for the
same judges hearing the matter demonstrate the high purpose sought to be served thereby.

 RULE OF INTERPRETATION OF STATUTE

[Resort to golden rule or mischief rule only necessary where literal meaning is not clear]

70. ............It is clear that words should normally be given their ordinary meaning bearing in
mind the context. It is only where the literal meaning is not clear that one resorts to the
golden rule of interpretation or the mischief rule of interpretation. This is well illustrated
from the observations of Tindal, C.J. in Sussex Peerage Claim, [18441 11 Cl & Fin 85 at 143.
He observed:
“The only rule for the construction of Acts of Parliament is that they should
be construed according to the intent of the Parliament which passed the Act.
If the words of the statute are in themselves precise and unambiguous, then
no more can be necessary than to expound those words in that natural and
ordinary sense. The words themselves alone do, in such case, best declare
the intention of the lawgiver. But if any doubt arises from the terms
employed by the legislature, it has always been held a safe means of
collecting the intention, to call in aid the ground and cause of making the
statute, and to have recourse to the preamble, which, according to Chief
Justice Pyer, Stewell v. Lord Zouch, [1569] 1 Plowd 353 at 369 is a key to
open the minds of the makers of the Act, and the mischiefs which they
intend to redress”.

71. This passage states the commonly accepted view concerning the relationship between the
literal and mischief rules of interpretation of statutes. Here there is no question as to what was
the previous law and what was intended to be placed or replaced as observed by Lord
Wilberforce in 274 House of Lords Debate, Col. 1294 on 16th November, 1966, see Cross;
Statutory Interpretation, second edition, page 36. He observed that the interpretation of
legislation is just a part of the process of being a good lawyer; a multi-faceted thing, calling
for many varied talents; not a subject which can be confined in rules. When the words are
clear nothing remains to be seen. If words are as such ambiguous or doubtful other aids come
in.

 PER INCURIAM DIRECTIONS AND SUPREME COURT’S POWER OF

INTERFERENCE WITH IT’S EARLIER DECISION

42. It appears that when this Court gave the aforesaid directions on 16th February, 1984, for
the disposal of the case against the appellant by the High Court, the directions were given
oblivious of the relevant provisions of law and the decision in Anwar Ali Sarkar’s case
(supra). 52 See Halsbury’s Laws of England, 4th End, Vol. 26, page 297, para 578 and page
300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130;
Young v. Bristol Aeroplane Co. Ltd., [1944] 2 AER 293 at 300. Also see the observations of
Lord Goddard in Moore v. Hewitt, [1947] 2 A.E.R. 270 at 272-A and Penny v. Nicholas,
[1950] 2 A.E.R. 89, 92A. “Per incuriam” are those decisions given in ignorance or
forgetfulness of some inconsistent statutory provision or of some authority binding on the
Court concerned, so that in such cases some part of the decision or some step in the reasoning
on which it is based, is found, on that account to be demonstrably wrong. See Morelle v.
Wakeling, [1955] 1 All E.R. 708, 718F. Also see State of Orissa v. The Titaghur Paper Mills
Co. Ltd., [19851 3 SCR 26. We are of the opinion that in view of the clear provisions of
section 7(2) of the Criminal Law Arnendment Act, 1952 and Articles 14 and 21 of the
Constitution, these directions were legally wrong.

47. In our opinion, we are not debarred from re-opening this question and giving proper
directions and correcting the error in the present appeal, when the said directions on 16th
February, 1984, were violative of the limits of jurisdiction and the directions have resulted in
deprivation of the fundamental rights of the appellant, guaranteed by Articles 14 and 21 of
the Constitution. The appellant has been treated differently from other offenders, accused of a
similar offence in view of the provisions of the Act of 1952 and the High Court was not a
Court competent to try the offence. It was directed to try the appellant under the directions of
this Court, which was in derogation of Article 21 of the Constitution. The directions have
been issued without observing the principle of audi alteram partem. It is true that Shri
Jethmalani has shown us the prayers made before the High Court which are at page 121 of
the paperbook. He argued that since the transfers have been made under section 407, the
procedure would be that given in section 407(8) of the Code. These directions, Shri
Jethmalani sought to urge before us, have been given in the presence of the parties and the
clarificatory order of April 5, 1985 which was made in the presence of the appellant and his
Counsel as well as the Counsel of the State Government of Maharashtra, expressly recorded
that no such submission was made in connection with the prayer for grant of clarification. We
are of the opinion that Shri Jethmalani is not right when he said that the decision was not
made per incuriam as submitted by the appellant. It is a settled rule that if a decision has been
given per incuriam the Court can ignore it. It is also true that the decision of this Court in the
case of The Bengal Immunity Co. Ltd. v. The State of Bihar & Ors. [1955] 2 SCR 603 at 623
was not regarding an order which had become conclusive inter-parties. The Court was
examining in that case only the doctrine of precedents and determining the extent to which it
could take a different view from one previously taken in a different case between different
parties.

48. According to Shri Jethmalani, the doctrine of per incuriam has no application in the same
proceedings. We are unable to accept this contention. We are of the opinion that this Court is
not powerless to correct its error which has the effect of depriving a citizen of his
fundamental rights and more so, the right to life and liberty. It can do so in exercise of its
inherent jurisdiction in any proceeding pending before it without insisting on the formalities
of a review application. Powers of review can be exercised in a petition filed under Article
136 or Article 32 or under any other provision of the Constitution if the Court is satisfied that
its directions have resulted in the deprivation of the fundamental rights of a citizen or any
legal right of the petitioner. See the observations in Prem Chand Garg v. Excise
Commissioner, U.P. Allahabad, [1963] Supp. 1 S.C.R. 885.

49. In support of the contention that an order of this Court be it administrative or judicial
which is violative of fundamental right can always be corrected by this Court when attention
of the Court is drawn to this infirmity, it is instructive to refer to the decision of this Court in
Prem Chand Garg v. Excise Commissioner, U.P., Allahabad (supra). This is a decision by a
Bench of five learned Judges. Gajendragadkar, J. spoke for four learned Judges including
himself and Shah, J. expressed a dissenting opinion. The question was whether Rule 12 of
order XXXV of the Supreme Court Rules empowered the Supreme Court in writ petitions
under Article 32 to require the petitioner to furnish security for the costs of the respondent.
Article 145 of the Constitution provides for the rules to be made subject to any law made by
Parliament and Rule 12 was framed thereunder. The petitioner contended that the rule was
invalid as it placed obstructions on the fundamental right guaranteed under Article 32 to
move the Supreme Court for the enforcement of fundamental rights. This rule as well as the
judicial order dismissing the petition under Article 32 of the Constitution for non-compliance
with Rule 12 of order XXXV of the Supreme Court Rules were held invalid. In order to
appreciate the significance of this point and the actual ratio of that decision so far as it is
relevant for our present purpose it is necessary to refer to a few facts of that decision. The
petitioner and 8 others who were partners of M/s. Industrial Chemical Corporation,
Ghaziabad, had filed under Article 32 of the Constitution a petition impeaching the validity
of the order passed by the Excise Commissioner refusing permission to the Distillery to
supply power alcohol to the said petitioners. The petition was admitted on 12th December,
1961 and a rule was ordered to be issued to the respondents, the Excise Commissioner of
U.P., Allahabad, and the State of U.P. At the time when the rule was issued, this Court
directed under the impugned rule that the petitioners should deposit a security 55 Of Rs.2,500
in cash within six weeks. According to the practice of this A Court prevailing since 1959, this
order was treated as a condition precedent for issuing rule nisi to the impleaded respondents.
The petitioners found it difficult to raise the amount and so on January 24, 1962, they moved
this Court for modification of the said order as to security. This application was dismissed,
but the petitioners were given further time to deposit the said amount by March 26, 1962.
This order was passed on March 15, 1962. The petitioners then tried to collect the requisite
fund, but failed in their efforts and that led to the said petition filed on March 24, 1962 by the
said petitioners. The petitioners contended that the impugned rule, in so far as it related to the
giving of security, was ultra vires, because it contravened the fundamental right guaranteed to
the petitioners under Article 32 of the Constitution. There were two orders, namely, one for
security of costs and another for the dismissal of the previous application under Article 32 of
the Constitution.

50. This Court by majority held that Rule 12 of order XXXV of the Supreme Court Rules was
invalid in so far as it related to the furnishing of security. The right to move the Supreme
Court, it was emphasised, under Article 32 was an absolute right and the content of this right
could not be circumscribed or impaired on any ground and an order for furnishing security
for the respondent’s costs retarded the assertion or vindication of the fundamental right under
Article 32 and contravened the said right. The fact that the rule was discretionary did not alter
the position. Though Article 142(1) empowers the Supreme Court to pass any order to do
complete justice between the parties, the Court cannot make an order inconsistent with the
fundamental rights guaranteed by Part III of the Constitution. No question of inconsistency
between Article 142(1) and Article 32 arose. Gajendragadkar, J. speaking for the majority of
the Judges of this Court said that Article F 142(1) did not confer any power on this Court to
contravene The provisions of Article 32 of the Constitution. Nor did Article 145 confer
power upon this Court to make rules, empowering it to contravene the provisions of the
fundamental right. At page 899 of the Reports, Gajendragadkar, J. reiterated that the powers
of this Court are no doubt very wide and they are intended and "will always be exercised in
the interests of justice." But that is not to say that an order can be made by this Court which is
inconsistent with the fundamental rights guaranteed by Part III of the Constitution. It was
emphasised that an order which this Court could make in order to do complete justice
between the parties, must not only be consistent with the fundamental rights guaranteed by
the Constitution, but it cannot even be inconsistent with the substantive provisions of the
relevant statutory laws (Emphasis A supplied). The Court therefore, held that it was not
possible to hold that Article 142(1) conferred upon this Court powers which could contravene
the provisions of Article 32. It follows, therefore, that the directions given by this Court on
16th February, 1984, on the ground of expeditious trial by transferring Special Case No. 24 of
1982 and Special Case No. 3 of 1983 pending in the Court of Special Judge, Greater
Bombay, Shri S.B. Sule, to the High Court of Bombay with a request to the learned Chief
Justice to assign these two cases to a sitting Judge of the High Court was contrary to the
relevant statutory provision, namely, section 7(2) of the Criminal law Amendment Act, 1952
and as such violative of Article 21 of the Constitution. Furthermore, it violates Article 14 of
the Constitution as being made applicable to a very special case among The special cases,
without any guideline as to which cases required speedier justice. If that was so as in Prem
Chand Garg’s case, that was a mistake of so great a magnitude that it deprives a man by
being treated differently of his fundamental right for defending himself in a criminal trial in
accordance with law. If that was so then when the attention of the Court is drawn the Court
has always the power and the obligation to correct it ex debito justitiae and treat the second
application by its inherent power as a power of review to correct the original mistake. No
suitor should suffer for the wrong of the Court. This Court in Prem Chand Garg’s case struck
down not only the administrative order enjoined by Rule 12 for deposit of security in a
petition under Article 32 of the Constitution but also struck down the judicial order passed by
the Court for non deposit of such security in the subsequent stage of the same proceeding
when attention of the Court to the infirmity of the rule was drawn. It may be mentioned that
Shah, J. was of the opinion that rule 12 was not violative. For the present controversy it is not
necessary to deal with this aspect of the matter.

51. The power of the Court to correct an error subsequently has been reiterated by a decision
of a bench of nine Judges of this Court in Naresh Shridhar Mirajkar and others v. State of
Maharashtra and another, [1966] 3 S.C.R. 744. The facts were different and not quite
relevant for our present purposes but in order to appreciate the contentions urged, it will be
appropriate to refer to certain portions of the same. There was a suit for defamation against
the editor of a weekly newspaper, which was filed in the original side of the High Court. One
of the witnesses prayed that the Court may order that publicity should not be given to his
evidence m the press as his business would be affected. After hearing arguments, the trial
Judge passed an oral order prohibiting the publication of the evidence of the witness. A
reporter of the weekly along with other journalists moved this Court under Article 32 of the
Constitution challenging the validity of the order. It was contended that: (1) the High Court
did not have inherent power to pass the order; (2) the impugned order violated the
fundamental rights of the petitioners under Article 19(1)(a); and (3) the order was amenable
to the writ jurisdiction of this Court under Article 32 of the constitution.

Per Venkantachaliah, J.(dissenting)

150. A judgment, inter-parties, is final and concludes the parties. In Re Hastings (No. 3)
[ 1959] l All ER 698, the question arose whether despite the refusal of a writ of Habeas
Corpus by a Divisional Court of the Queen’s bench, the petitioner had, yet, a right to apply
for the writ in the Chancery Division. Harman J. called the supposed right an illusion:

“Counsel for the applicant, for whose argument I for one am much indebted, said that the
clou of his case as this, that there still was this right: to go from Judge to Judge, and that if
that were not so the whole structure would come to the ground ....I think that the Judgment of
the Queen’s bench Divisional Court did make it clear that this supposed right 107 was an
illusion. If that be right, the rest follows. No body doubts that there was a right to go from
court to court, as my Lord has already explained. There are no different courts now to go to.
The courts that used to sit in banc have been swept away and their places taken by Divisional
Courts, which are entirely the creatures of statute and rule. Applications for a writ of habeas
corpus are assigned by the rule to Divisional Courts of the Queen’s Bench Division, and that
is the only place to which a applicant may go ...... " [See page 701]

151. In Daryao v. State of U. P., [1962] 1 SCR 574 it was held:

“It is in the interest of the public at large that a finality should attach to the binding decisions
pronounced by courts of competent jurisdiction, and it is also in the public interest that
individuals should- not be vexed twice over with the same kind of litigation. If these two
principles form the foundation of the general rule of res-judicata they cannot be treated as
irrelevant or inadmissible even in dealing with fundamental rights in petitions filed under
Article 32”. [See page 583].

152. In Trilok Chand v. H. B. Munshi, [1969] 2 SCR 824 Bachawat J. recognised the same
limitations even in matter pertaining to the conferment of fundamental rights.

“... The right to move this Court for enforcement of fundamental rights is guaranteed by
Article 32. The writ under Article 32 issues as a matter of course if a breach of a fundamental
right is established. But this does not mean that in giving relief under Article 32 the Court
must ignore and trample under foot all laws of procedure, evidence. limitation, res judicata
and the like.
 .............the object of the statutes of limitation was to give effect to the maxim ‘interest
reipublicate ut sit finislitium’ (Cop Litt 303)-the interest of the State requires that there
should be a limit to litigation. The rule of res judicata is founded upon the same rule of public
policy .......” [See page 842 and 843]

153. It is to be recalled that an earlier petition, W.P. No. 708 of 1984 108 under Article 32
moved before this Court had been dismissed, reserving leave to the appellant to seek review.

154. The words of Venkataramiah J in Sheonandan Paswan v. State of Bihar, [1987]1 SCC
288 at 343 are apt and are attracted to the present case:

“The reversal of the earlier judgment of this court by this process strikes at the finality of
judgments of this Court and would amount to the abuse of the power of review vested in this
Court, particularly in a criminal case. It may be noted that no other court in the country has
been given the power of review in criminal cases. I am of the view that the majority judgment
of Baharul Islam and R.B. Misra, JJ. should remain undisturbed. This case cannot be
converted into an appeal against the earlier decision of this Court.” (Emphasis supplied)

 SCOPE OF SUPREME COURT’S POWER TO DETERMINE ITS OWN

JURISDICTION

39. Shri Jethmalani sought to urge before us that the order made by the Court was not without
jurisdiction or irregular. We are unable to agree. It appears to us that the order was quite
clearly per incuriam. This Court was not called upon and did not decide the express limitation
on the power conferred by section 407 of the Code which includes offences by public
servants mentioned in the 1952 Act to be overridden in the manner sought to be followed as
the consequential direction of this Court. This Court, to be plain, did not have jurisdiction to
transfer the case to itself. That will be evident from an analysis of the different provisions of
the Code as well as the 1952 Act. The power to create or enlarge jurisdiction is legislative in
character, so also the power to confer a right of appeal or to take away a right of appeal.
Parliament alone can do it by law and no Court. whether superior or inferior or both
combined can enlarge the jurisdiction of a Court or divest a person of his rights of revision
and appeal. See in this connection the observations in M.L. Sethi v. R.P. Kapur (supra) in
which Justice Mathew considered Anisminic, [1969] 2 AC 147 and also see Halsbury’s Laws
of England, 4th Edn. Vol. 10 page 327 at para 720 onwards and also Amnon Rubinstein
’Jurisdiction and Illegality’ (1965 Edn. pages 16-50). Reference may also be made to Raja
Soap Factory v. S. P. Shantaraj, [1965] 2 SCR 800.

40. The question of validity, however, is important in that the want of jurisdiction can be
established solely by a superior Court and that, in practice, no decision can be impeached
collaterally by any inferior Court. But the superior Court can always correct its own error
brought to its notice either by way of petition or ex debito justitiae. See Rubinstein’s
Jurisdiction and Illegality’ (supra).

Per Venkatachaliah, J. (dissenting)

144. The superior court has jurisdiction to determine its own jurisdiction and an error in that
determination does not make it an error of jurisdiction. Holdsworth (History of English Law
vol. 6 page 239) refers to the theoritical possibility of a judgment of a superior court being a
nullity if it had acted coram-non- judice. But who will decide that question if the infirmity
stems from an act of the Highest Court in the land? It was observed:

“It follows that a superior court has jurisdiction to determine its own jurisdiction; and that
therefore an erroneous conclusion as to the ambit of its jurisdiction is merely an abuse of its
jurisdiction, and not an act outside its jurisdiction ...ln the second place, it is grounded upon
the fact that, while the judges of the superior courts are answerable only to God and the king,
the judges of the inferior courts are answerable to the superior courts for any excess of
jurisdiction..........Theoritically the judge of a superior court might be liable if he acted coram
non judice; but there is no legal tribunal to enforce that liability. Thus both lines of reasoning
led to the same conclusion-the total immunity of the judges of the superior courts.”

145. Rubinstein in his “Jurisdiction and Illegality” says: “.... In practice, every act made by a
superior court is always deemed valid (though, possibly, voidable) wherever it is relied upon.
This exclusion from the rules of validity is indispensable. Superior courts knew the final
arbiters of the validity of acts done by other bodies; their own decisions must be immune
from collateral attack unless confusion is to reign. The superior courts decisions lay down the
rules of validity but are not governed by these rules." (See P. 12)

146. A clear reference to inappositeness and limitations of the Anisminic Rule in relation to
Superior Court so to be found in the opinion of Lord Diplock in Re Racal Communications
Ltd. [ 198() 2 All E.R. 634], thus:

“There is in my view, however, also an obvious distinction between jurisdiction conferred by

a statute on a court of law of limited jurisdiction to decide a defined question finally and
conclusively or unappealably, and a similar jurisdiction conferred on the High Court or a
judge of the High Court acting in his judicial capacity. The High Court is not a court of
limited jurisdiction and its constitutional role includes the interpretation of written laws.
There is thus no room for the inference that Parliament did not intend the High Court or the
judge of the High Court acting in his judicial capacity to be entitled and, indeed, required to
construe the words of the statute by which the question submitted to his decision was defined.
There is simply no room for error going to his jurisdiction, or as is conceded by counsel for
the respondent, is there any room for judicial review. Judicial review is available as a remedy
for mistakes of law made by inferior courts and tribunals only. Mistakes of law made by
judges of the High Court acting in their judicial capacity as such can be corrected only by
means of appeal to an appellate court and if, as in the instant case, the statute provides that
the judge’s decision shall not be appealable, they cannot be corrected at all." [See page 639 &
640l].

In the same case, Lord Salmon, said:

“The Court of Appeal, however, relied strongly on the decision of your Lordship’s House in
Anisminic Ltd. v. Foreign Compensation Commission, [1969] 1 All ER 209. That decision
however was not, in my respectful view in any way relevant to the present appeal. It has no
applica- tion to any decision or order made at first instance in the High Court of Justice. It is
confined to decisions made by commissioners, tribunals or inferior courts which can now be
reviewed by the High Court of Justice, just as the decision of inferior courts used to be
reviewed by the old Court of King’s Bench under the prerogative writs. If and when any such
review is made by the High Court. it Can be A appealed to the court of Appeal and hence, by
lave, to your Lordship’s House. [See page 6411.

147. Again in Issac v. Robertson, [1984] 3 All E.R. 140 the Privy Council reiterated the
fallacy of speaking in the language of Nullity void, etc., in relation to Judgement of superior
courts. lt was pointed out that it could only be called ’irregular’. Lord Diplock observed:
“Their Lordships would, however, take this opportunity to point out that in relation to orders
of a court of unlimited jurisdiction it is misleading to seek to draw distinctions between
orders that are ‘void’ in the sense that they can be ignored with impunity by those persons to
whom they are addressed, and orders that arc "voidable’ and may be enforced unless and
until they are set aside. Dicta that refers to the possibility of these being such a distinction
between orders to which the description ’void’ and ’voidable’ respectively have been applied
can be found in the opinion given by the judicial committee of the Privy Council in Marsh v.
Marsh, [1945] AC 271 at 284 and Maxfoy v. United Africa Co. Ltd., [19611] All EWR 1169.
[1962] AC 152, but in neither of those appeals not in any other case to which counsel has
been able to refer their Lordships has any order of a court of unlimited jurisdiction been held
to fall in a category of court orders that can simply be ignored because they are void ipso
facto without there being any need for proceeding to have them set aside. The cases that are
referred to in these dicta do not support the proposition that there is any category of orders of
a court of unlimited jurisdiction of this kind .....The contrasting legal concepts of voidness
and voidability form part of the English Law of contract. They are inapplicable to orders
made by a court of unlimited jurisdiction in the course of contentious litigation. Such an order
is either irregular or regular. if it is irregular it can be set aside by the court that made it on
application to High court. if it is regular it can only be set aside by an appellate court on
appeal if there is one to which an appeal lies. "[See page 143]

148. Superior courts apart, even the ordinary civil courts of the land have jurisdiction to
decide questions of their own jurisdiction. This Court, in the context of the question whether
the provisions of Bombay Rents, Hotel and Lodging House Rates Control Act, 1947, was not
attracted to the premises in question and whether, consequently, the exclusion under Section
28 of that Act, of the jurisdiction of all courts other than the Court of Small Causes in Greater
Bombay did not operate, observed:

“... The crucial point, therefore, in order to determine the question of the jurisdiction of the
City Civil Court to entertain the suit, is to ascertain whether, in view of Section 4 of the Act,
the Act applies to the premises at all. If it does, the City Civil Court has no jurisdiction but if
it does not then it has such jurisdiction. The question at once arises as to who is to decide this
point in controversy. It is well settled that a Civil Court has inherent power to decide the
question of its own jurisdiction, although, as a result of its enquiry, it may turn out that it has
no jurisdiction over the suit. Accordingly, we think, in agreement with High Court that this
 preliminary objection is not well founded in principle or on authority and should be rejected.”
[See AIR 1953 (SC) 16 at 19. Bhatia Co- operative Housing Society Ltd. v. D. C. Patel].

149. It would, in my opinion, be wholly erroneous to characterise the directions issued by the
five Judge bench as a nullity, amenable to be ignored or so declared in a collateral attack.

 “ACTUS CURIE NEMINEM GRAVABIT”- SCOPE AND APPLICABILITY

81. .........It has been said long time ago that "Actus Curiae Neminem Gravabit"-an act of the Court
shall prejudice no man. This maxim is founded upon justice and good sense and affords a safe and
certain guide for the administration of the law.

82. Lord Cairns in Alexander Rodger v. The Comptoir D’escompte De Paris, (Law Reports
Vol. III 1869-71 page 465 at page 475) observed thus:
“Now, their Lordships are of opinion, that one of the first and highest duties of all Courts is to
take care that the act of the Court does no injury to any of the Suitors, and when the
expression ’the act of the Court’ is used, it does not mean merely the act of the Primary
Court, or of any intermediate Court of appeal, but the act of the Court as a whole, from the
lowest Court which entertains jurisdiction over the matter up to the highest Court which
finally disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the
expression, to take care that no act of the Court in the course of the whole of the proceedings
does an injury to the suitors in the Court.”

Per Ranganath Misra, J. (concurring)

98. It is a well-settled position in law that an act of the court should not injure any of the
suitors. The Privy Council in the well-known decision of Alexander Rodger v. The Comptori
D’ Escompte De Paris, [1871] 3 P.C. 465 observed:- "One of the first and highest duties of
all courts is to take care that the act of the court does no injury to any of the suitors, and when
the expression act of the court is used, it does not mean merely the act of the primary court,
or of any intermediate court of appeal, but the act of the court as a whole, from the lowest
court which entertains jurisdiction over the matter upto the highest court which finally
disposes of the case. It is the duty of the aggregate of those Tribunals, if I may use the
expression, to take care that no act of the court in the course of the whole of the proceed 85
ings does an injury to the suitors in courts."
Brother Mukharji has also referred to several other authorities which support this view.

103. The Privy Council in Debi Bakhsh Singh v. Habib Shah, ILR 35 All. 331, pointed out
that an abuse of the process of the Court may be committed by the court or by a party. Where
a court employed a procedure in doing something which it never intended to do and there is
an abuse of the process of the court it can be corrected. Lord Shaw spoke for the Law lords
thus:
“Quite apart from section 151, any court might have rightly considered itself to possess an
inherent power to rectify the mistake which had been inadvertently made.”
 It was pointed out by the Privy Council in Murtaza v. Yasin, AIR 1916 PC 8 that:
“Where substantial injustice would otherwise result, the court has, in their Lordships opinion,
an inherent power to set aside its own judgments of condemnation so as to let in bona fide
claims by parties ...”. Indian authorities are in abundance to support the view that injustice
done should be corrected by applying the principle actus curiae neminem gravabit an act of
the court shall prejudice no one.

104. To err is human, is the off-quoted saying. Courts including the apex one are no
exception. To own up the mistake when judicial satisfaction is reached does not militate
against its status or authority. Perhaps it would enhance both.

Per Venkantachaliah, J. (dissenting)

185. The argument is that the appellant has been prejudiced by a mistake of the Court and it
is not only within power but a duty as well, of the Court to correct its own mistake, so that no
party is prejudiced by the Court’s mistake: Actus Curiae Neminem Gravabit.

186. I am afraid this maxim has no application to conscious conclusions reached in a judicial
decision. The maxim is not a source of a general power to reopen and rehear adjudication
which have otherwise assumed finality. The maxim operates in a different and narrow area.
The best illustration of the operation of the maxim is provided by the application of the rule
of nunc-pro-tunc. For instance, if owing to the delay in what the court should, otherwise,
have done earlier but did later, a party suffers owing to events occurring in the interrugnum,
the Court has the power to remedy it. The area of operation of the maxim is generally,
procedural. Errors in judicial findings, either of facts or law or operative decisions
consciously arrived at as a part of the judicial-exercise cannot be interfered with by resort to
his maxim.

Per Ranganathan, J. (dissenting)

238. I have given careful thought to these contentions. The appellant’s counsel has relied to a
considerable extent on the maxim "actus curiae neminem gravabit" for contending that it is
not only within the power, but a duty as well, of this Court to correct its own mistakes in
order to see that no party is prejudiced by a mistake of the Court. I am not persuaded that the
earlier decision could be reviewed on the application of the said maxim. I share the view of
my learned brother Venkatachaliah, J. that this maxim has very limited application and that it
cannot be availed of to correct or review specific conclusions arrived at in a judicial decision.
My brother Venkatachaliah, J. has further taken the view that this Court cannot exercise any
inherent powers for setting right any injustice that may have been caused as a result of an
earlier order of the Court. While alive to the consideration that “the highest court in the land
should not, by technicalities of procedure, forge fetters on its own feet and disable itself in
cases of serious miscarriages of justice”, he has, nevertheless, come to the conclusion that
"the remedy of the appellant, if any, is by recourse to article 137 and nowhere else." It is at
this point that I would record a dissent from his opinion. In my view, the decisions cited do
indicate that situations can and do arise where this Court may be constrained to recall or
modify an order which has been passed by it earlier and that when ex facie there is something
radically wrong with the earlier order, this Court may have to exercise its plenary and
inherent powers to recall the earlier order without considering itself bound by the nice
technicalities of the procedure for getting this done. Where a mistake is committed by a
subordinate court or a High Court, there are ample powers in this Court to remedy the
situation. But where the mistake is in an earlier order of this Court, there is no way of having
it corrected except by approaching this Court. Sometimes, the remedy sought can be brought
within the four comers of the procedural law in which event there can be no hurdle in the way
of achieving the desired result. But the mere fact that, for some reason, the conventional
remedies are not available should not, in my view, render this Court powerless to give relief.
As pointed out by Lord Diplock in Isaac v. Robertson, [1984] 3 A.E.R. 140, it may not be
possible or prudent to lay down a comprehensive list of defects that will attract the ex debito
justitiae relief. Suffice it to say that the court can grant relief where there is some manifest
illegality or want of jurisdiction in the earlier order or some palpable injustice is shown to
have resulted. Such a power can be traced either to article 142 of the Constitution or to the
powers inherent in this Court as the apex court and the guardian of the Constitution.