Cases ReportedSupreme Court Cases

In Union of India v. W.N. Chadha,1993 Supp (4) SCC 260, the bench of S. Ratnavel Pandian and K. Jayachandra Reddy, JJ explained the exclusion of the application of the principle of audi alteram partem in relation to an accused at the stage of investigation and made the following observation:

“81. There is exclusion of the application of audi alteram partem rule to cases where nothing unfair can be inferred by not affording an opportunity to present and meet a case. This rule cannot be applied to defeat the ends of justice or to make the law “lifeless, absurd, stultifying and self-defeating or plainly contrary to the common sense of the situation” and this rule may be jettisoned in very exceptional circumstances where compulsive necessity so demands.

89. Applying the above principle, it may be held that when the investigating officer is not deciding any matter except collecting the materials for ascertaining whether a prima facie case is made out or not and a full enquiry in case of filing a report under Section 173(2) follows in a trial before the Court or Tribunal pursuant to the filing of the report, it cannot be said that at that stage rule of audi alteram partem superimposes an obligation to issue a prior notice and hear the accused which the statute does not expressly recognise. The question is not whether audi alteram partem is implicit, but whether the occasion for its attraction exists at all.

90. Under the scheme of Chapter XII of the Code of Criminal Procedure, there are various provisions under which no prior notice or opportunity of being heard is conferred as a matter of course to an accused person while the proceeding is in the stage of an investigation by a police officer.

91. More so, the accused has no right to have any say as regards the manner and method of investigation. Save under certain exceptions under the entire scheme of the Code, the accused has no participation as a matter of right during the course of the investigation of a case instituted on a police report till the investigation culminates in filing of a final report under Section 173(2) of the Code or in a proceeding instituted otherwise than on a police report till the process is issued under Section 204 of the Code, as the case may be. Even in cases where cognizance of an offence is taken on a complaint notwithstanding that the said offence is triable by a Magistrate or triable exclusively by the Court of Sessions, the accused has no right to have participation till the process is issued. In case the issue of process is postponed as contemplated under Section 202 of the Code, the accused may attend the subsequent inquiry but cannot participate. There are various judicial pronouncements to this effect but we feel that it is not necessary to recapitulate those decisions. At the same time, we would like to point out that there are certain provisions under the Code empowering the Magistrate to give an opportunity of being heard under certain specified circumstances.”

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Section 340
Case BriefsSupreme Court

   

Supreme Court: While answering the reference questions arising from a reference order of a Division Bench, the 3-judges Bench of Sanjay Kishan Kaul, Abhay S. Oka and Vikram Nath, JJ., held that Section 340 of the CrPC does not mandate a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the CrPC.

Questions Referred

The instant matter arose from a reference made to a three Judges Bench by an order passed in State of Punjab v. Jasbir Singh, (2020) 12 SCC 96, seeking the following questions to be answered:

“(i) Whether Section 340 of the Code of Criminal Procedure, 1973 mandates a preliminary inquiry and an opportunity of hearing to the would-be accused before a complaint is made under Section 195 of the Code by a Court?

(ii) what is the scope and ambit of such preliminary inquiry?”

Background

The High Court, by the impugned judgment in Jasbir Singh v. State of Punjab, 2019 SCC OnLine P&H 2965, granted relief to the respondent while dealing with an aspect of forgery in a civil case, on the reasoning that the FIR registered against the respondent-accused did not comply with the mandatory requirements of Section 340 which provides for the procedure in cases mentioned in section 195, particularly because the FIR was filed without any inquiry and without giving any opportunity to the respondent to be heard.

The Reference Order

By the reference order in State of Punjab v. Jasbir Singh, (2020) 12 SCC 96, the Division Bench of the Supreme Court noted that a three Judges Bench in Pritish v. State of Maharashtra, (2002) 1 SCC 253, had held that the purpose of a preliminary inquiry under Section 340(1), CrPC was not to find whether a person is guilty or not but only to decide whether it was expedient in the interest of justice to inquire into the offence. It was thus observed that the Court is not obliged to make a preliminary inquiry on a complaint but if the Court decides to do so, it should make a final set of the facts which is expedient in the interest of justice that offence should be further probed into.

The Division Bench noted that the views of the Court in Pritish’s case (supra) were conflicting with the views of the other 3-judges’ Bench in Sharad Pawar v. Jagmohan Dalmiya, (2010) 15 SCC 290, to the extent that in para 7, it was observed that it was necessary to conduct a preliminary inquiry as contemplated under Section 340 CrPC. and also, to afford an opportunity of being heard to the defendants.

The Division Bench, in the reference order simultaneously noted the observations of the Constitution Bench in Iqbal Singh Marwah v. Meenakshi Marwah, (2005) 4 SCC 370, which was post the judgment in Pritish’s case (supra) but prior to the judgment in Sharad Pawar’s case (supra). In the said case, the Constitution Bench had opined:

“In view of the language used in Section 340 CrPC the Court is not bound to make a complaint regarding commission of an offence referred to in Section 195(1)(b), as the Section is conditioned by the words ‘Court is of opinion that it is expedient in the interest of justice.’ This shows that such a course will be adopted only if the interest of justice requires and not in every case. Before filing of the complaint, the Court may hold a preliminary enquiry and record a finding to the effect that it is expedient in the interests of justice that enquiry should be made into any of the offences referred to in Section 195(i)(b). This expediency will normally be judged by the Court by weighing not the magnitude of injury suffered by the person affected by such forgery or forged document, but having regard to the effect or impact, such commission of offence has upon administration of justice.”

Analysis and Conclusion

In the view of the above, the Court held that the Constitution Bench’s view would naturally prevail which makes the legal position quite abundantly clear. Additionally, the Court noted that what is reported in Sharad Pawar’s case (supra) is only an order giving factual scenario and not a judgment that lays down the principles of law. As a matter of caution, the Court remarked,

“The scenario is that any order or judgment passed by this Court becomes a reportable exercise to create more volumes of reported cases! This thus has a possibility at times of causing some confusion on the legal principles prevalent. The observations in the quoted paragraph extracted aforesaid apparently came out of the flow of the order rather than pronouncing any principles of law and that is why the Bench itself categorized what is observed as an order i.e, in the given factual scenario.”

Hence, the Court concluded that there is no question of opportunity of hearing in a scenario of this nature and the law as enunciated by the Constitution Bench in Iqbal Singh Marwah’s case (supra) is in line with what was observed in Pritish’ case (supra). Further, the Bench noted that interestingly both the aforesaid judgments had not been noted in order passed in Sharad Pawar’s Case (supra).

Consequently, the Court answered the first question negatively. Insofar as the second question is concerned, the Court held that scope and ambit of such a preliminary inquiry already stands resolved in terms of the Constitution Bench judgment in the Iqbal Singh Marwah’s case (supra). The matter is directed to be placed before the regular Bench for consideration on merits.

[State of Punjab v. Jasbir Singh, 2022 SCC OnLine SC 1240, decided on 15-09-2022]


Advocates who appeared in this case :

For Appellant(s): AOR Rooh-e-hina Dua, Advocates Harshit Khanduja, Kanishak Bunderwal, and Ananya Sikri

For Respondent(s): AOR Shubham Bhalla and Advocates Sumeir Ahuja, Akansha Gulati, and Deepak Samota


*Kamini Sharma, Editorial Assistant has put this report together.

Case BriefsSupreme Court

Supreme Court: In an interesting case the Vacation Bench comprising Dinesh Maheshwari and Krishna Murari, JJ., disapproved a strange bail condition imposed by the M.P. High Court. The High Court had directed the husband to surrender as a condition for pre-arrest bail of his wife.

The petitioner’s wife (applicant herein after) had approached the M.P. High Court with an application for pre-arrest bail apprehending her arrest in connection with a case registered against her husband’s family for offences punishable under Sections 304-B, 498-A, 34 of the Penal Code, 1860.

Considering that the applicant’s husband is posted at Mohana, District Gwalior which is a distant place from where the deceased resided last and the applicant has to take care of her children (two children aged 6 years and 3 years respectively), the High Court granted her pre-arrest bail with a direction to her husband to immediately surrender.

Aggrieved thereby, the petitioner, elder brother of the husband of the deceased, assailed the impugned order in the instant petition. The petitioner contended that the High Court had—while granting the prayer for pre-arrest bail to his wife— apart from the requirements of furnishing the bail bonds and surety, imposed further several conditions and then, before concluding the matter, observed as under:

“It is expected that husband of the applicant shall immediately surrender to the course of justice.”

The petitioner contended that such an observation of the High Court, practically forming a condition for grant of bail to his wife, has put all his rights in jeopardy and his plea for grant of pre-arrest bail is not being considered by the Sessions Judge because of such an observation.

Opining that the petitioner’s grievances were justified, the Court stated that it is inexplicable how the High Court can, while granting pre-arrest bail to the petitioner’s wife make such an observation that may operate against the interests of the petitioner; that too without extending him an opportunity to be heard. Considering the facts and circumstances of the case and the nature of accusations, the Court remarked,

“We are unable to find any logic in such a condition.”  

Hence, the Court disapproved of the condition imposed on the petitioner by the High Court.

Though the Court refrained to comment on the merits of the petitioner’s case for grant of pre-arrest bail, it held that the observations occurring in the impugned order cannot and shall not operate for being prejudicial to the interests of the petitioner.

Consequently, the Court directed that the petitioner’s bail plea shall be examined by the Court concerned on its own merits. Additionally, the Court added that since the instant order was passed without notice to the other side, the respondent-State will have the liberty to apply for a modification or for any other order, if necessary.

[Ajay Singh Rajpoot v. State of M.P., 2022 SCC OnLine SC 875, decided on 07-07-2022]


Appearance by:

For the Petitioner: Mr. Shishir Kumar Saxena, Adv., Mr. R.N. Pareek, Adv., Ms. Payal Swarup, Adv. and Mr. Praveen Swarup, AOR


*Kamini Sharma, Editorial Assistant has put this report together 

Case BriefsSupreme Court

Supreme Court: In a big development in the Lakhimpur Kheri violence, the 3-judge bench of NV Ramana, CJ and Surya Kant and Hima Kohli, JJ has cancelled the bail of the accused Ashish Sharma after observing that the Allahabad High Court had shown a “tearing hurry” in entertaining and granting bail to Mishra.

What happened in Lakhimpur Kheri?

On 29.09.2021, several farmers had gathered in the Khairaitya village in Lakhimpur Kheri District to celebrate the birth anniversary of Sardar Bhagat Singh and to protest against the Indian Agricultural Acts of 2020. During this gathering, the farmers objected to certain comments made by Ajay Mishra, Union Minister of State for Home.

On 03.10.2021, an annual Dangal (wrestling) competition was being organised by the accused Ashish Mishra. The program was to be attended by Ajay Mishra, as well as Keshav Prasad Maurya, Deputy Chief Minister of Uttar Pradesh. A crowd of farmers started gathering near the helipad in the morning of 03.10.2021. The route of the Chief Guest was thus changed to take him by road. But the changed road route was also passing in front of the Maharaja Agrasen Inter College, where the protesting farmers had been gathering in large numbers. This led the authorities to take recourse to yet another alternative way to reach the Dangal venue.

In the meantime, some supporters of Ashish Mishra, who were travelling by a car to the Dangal venue, were statedly attacked by certain farmers. A hoarding board that displayed pictures of Ajay Mishra and the Accused was also damaged.

Agitated with these happening, Mishra had allegedly conspired with his aides and confidants, and had allegedly drove into the crowd of the returning farmers and hit them with an intention to kill. Resultantly, many farmers and other persons were crushed by the vehicles.

Accuses Mishra and his co¬accused Sumit Jaiswal then escaped by running towards a nearby sugarcane field while taking cover by firing their weapons.

As a consequence of this incident, four farmers, one journalist, the driver of one of the vehicles, and two others, were killed. Nearly ten farmers suffered major and minor injuries.

Supreme Court’s ruling

Victims not heard

Holding that, in the case at hand, the ‘victims’ have been denied a fair and effective hearing at the time of granting bail to the Accused, the Court expressed its disappointment with the manner in which the High Court failed to acknowledge the right of the victims.

It is important to note that the Counsel for the ‘victims’ had got disconnected from the online proceedings and could not make effective submissions before the High Court. Thereafter, an application seeking a rehearing was also moved on the same ground but the same was not considered by the High Court while granting bail to Mishra.

Relevant considerations overlooked by High Court

Instead of looking into aspects such as the nature and gravity of the offence; severity of the punishment in the event of conviction; circumstances which are peculiar to the accused or victims; likelihood of the accused fleeing; likelihood of tampering with the evidence and witnesses and the impact that his release may have on the trial and the society at large; the High Court adopted a myopic view of the evidence on the record and proceeded to decide the case on merits.

It took into account several irrelevant considerations, whilst simultaneously ignoring judicial precedents and established parameters for grant of bail.

“It has been ruled on numerous occasions that a F.I.R. cannot be treated as an encyclopaedia of events. While the allegations in the F.I.R., that the accused used his firearm and the subsequent post-mortem and injury reports may have some limited bearing, there was no legal necessity to give undue weightage to the same.”

Conclusion

The Court, hence, cancelled Mishra’s bail, without depriving him of his legitimate right to seek enlargement on bail on relevant considerations. The following factors weighed in with the Court:

  • irrelevant considerations having impacted the impugned order granting bail;
  • the High Court exceeding its jurisdiction by touching upon the merits of the case;
  • denial of victims’ right to participate in the proceedings; and
  • the tearing hurry shown by the High Court in entertaining or granting bail to the respondent/accused.

“This Court is tasked with ensuring that neither the right of an accused to seek bail pending trial is expropriated, nor the ‘victim’ or the State are denuded of their right to oppose such a prayer. In a situation like this, and with a view to balance the competing rights, this Court has been invariably remanding the matter(s) back to the High Court for a fresh consideration.”

The Court was also of the view that ends of justice would be adequately met by remitting this case to the High Court for a fresh adjudication of the bail application of the Accused, in a fair, impartial and   dispassionate manner.

Mishra has to surrender within a week.

[Jagjeet Singh v. Ashish Mishra, 2022 SCC OnLine SC 453, decided on 18.04.2022]


*Judgment by: Justice Surya Kant


Counsels

For Appellants: Senior Advocate Dushyant Dave

For Accused: Senior Advocate Ranjit Kumar

For State: Senior Advocate Mahesh Jethmalani

 

Case BriefsSupreme Court

Supreme Court: In a case where the order of conviction and sentence was passed on the same day, the 3-judge bench of L. Nageswara Rao, BR Gavai and BV Nagarathna, JJ has stressed on the importance of bifurcated hearing for convicting and sentencing and has observed that the same is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence should be provided to the accused by the Trial Court.

The Court was hearing the case the kidnapping, rape and murder of a girl aged 11 years. On 14.04.2017, the victim, along with her parents and two brothers, went to attend a function. While returning, her parents realized that she was missing and upon searching, at about 5:00 AM on the next day, the mother found her daughter lying near a hand-pump. She was in an unconscious condition. According to the inspection report, the body of the deceased was lying in a supine position and on the back side of the head of the deceased, there were multiple small pieces of dry grass, Caltrop and a dry bark of drumstick tree in the hair. Both eyes were closed. There were injury marks on the body and blood was present in the genitalia. The cause of the death was given as asphyxia, neurogenic shock due to neck pressing, severe injuries and bleeding in vagina and anal opening by committing rape forcefully.

While the Supreme Court was in agreement with the concurrent findings that the Appellant was guilty of committing the offences as charged, it observed that,

“It is travesty of justice as the Appellant was not given a fair opportunity to defend himself. This is a classic case indicating the disturbing tendency of Trial Courts adjudicating criminal cases involving rape and murder in haste. It is trite law that an accused is entitled for a fair trial which is guaranteed under Article 21 of the Constitution of India. In respect of the order of conviction and sentence being passed on the same day, the object and purpose of Section 235 (2) CrPC is that the accused must be given an opportunity to make a representation against the sentence to be imposed on him. A bifurcated hearing for convicting and sentencing is necessary to provide an effective opportunity to the accused. Adequate opportunity to produce relevant material on the question of death sentence shall be provided to the accused by the Trial Court.”

The Court also observed that while the Trial Court and the High Court took into consideration the gravity of the crime while imposing death sentence, the mitigating circumstances and the probability of reformation and rehabilitation of the accused were not considered. The Court noticed that,

  • The Appellant was aged 25 years on the date of commission of the offence and belongs to a Scheduled Tribes community, eking his livelihood by doing manual labour.
  • No evidence has been placed by the prosecution on record to show that there is no probability of rehabilitation and reformation of the Appellant and the question of an alternative option to death sentence is foreclosed.
  • The Appellant had no criminal antecedents before the commission of crime for which he has been convicted.
  • There is nothing adverse that has been reported against his conduct in jail.

Therefore, the Court was of the opinion that the death sentence requires to be commuted to life imprisonment. However, taking into account the barbaric and savage manner in which the offences of rape and murder were committed by the Appellant on a hapless 11 year old girl, the Court sentenced the Appellant to life imprisonment for a period of 30 years during which he shall not be granted remission.

[Bhagwani v. Stat eof Madhya Pradesh, 2022 SCC OnLine SC 52, decided on 18.01.2022]


*Judgment by: L. Nageswara Rao


Counsels:

For appellant: Advocate Shri Singh

For State: Deputy Advocate General Ankita Chaudhary

Case Briefs

Supreme Court: The Division Bench of L. Nageswara Rao and S. Ravindra Bhat*, JJ., dismisses the appeal initiated by the accused contractors in Integrated Housing and Slum Development corruption case. The Bench observed,

“The constructions, according to the reports, were sub-standard – in respect of 100 such houses, so severe that the units were unusable. The main objective of providing housing to 1206 eligible and deserving families remains unfulfilled despite expenditure of substantial amounts.”

Factual Fulcrum

The criminal Public Interest Litigations were filed by the respondents seeking directions to the Union of India, the State of Maharashtra, the Maharashtra Housing and Urban Development Authority (MHADA) and state officials to initiate criminal proceedings against the responsible officers and office bearers of Municipal Council, Naldurg and the contractors concerned for misappropriation of government funds in implementation of the housing scheme in the municipality.

An Integrated Housing and Slum Development Programme (IHSDP) was initiated by the Union Government through the State Government, under the “Jawaharlal Nehru National Urban Renewal Mission” for providing basic services to the urban poor including affordable prices, improved housing, water supply, sanitation, wherein the Maharashtra Government had appointed MHADA as the nodal agency.

The petitioners-respondents alleged that the quality of work carried out by the appellants was very poor and the officials (i.e. MHADA, municipality, etc.) did not inspect or supervise the work, and did not submit the quarterly reports as required under the scheme. It was submitted that the municipality diverted funds meant for the said development project, for other works as the observation made by technical team showed that the municipal council made an excess payment of Rs. 2,43,79,017/- to the contractors as compared to the work done. The allegations were also made with regard to failure to complete the project, and various other omissions were highlighted.

Findings of the High Court

Observing the dereliction of duties on the part of the authorities and certain other irregularities, the High Court had directed the Divisional Commissioner to take actions to its logical end as expeditiously as possible. Pursuant to the direction of the High Court and the report of the technical team the Collector directed the Municipal Council to recover the excess amount paid to the contractors, and blacklist them from Government work, to initiate criminal prosecution against the person(s) who had committed the irregularities, and lastly allot the repairable houses.

Analysis and Conclusion

Noticing that the appellants were all involved as persons or authorized individuals, acting on behalf of entities that were awarded the contract of construction and completion of the housing units, pursuant to the scheme, and that the spot inspection report alleged that they had not performed their task, the made the following observations:

Effect of Delay in Giving Reasoning of the Judgment by the High Court

Rejecting the first grievance of the appellants that the reasoning for the impugned judgment was given and published long after its operative portion was pronounced, i.e. a year and over three months which had prejudiced their case, the Bench stated that though it is clear that the High Court’s order, against which an aggrieved litigant has a right to approach in appeal, under special leave jurisdiction should contain reasons without which it would be well-nigh impossible to exercise that right of seeking special leave, to that extent, the appellants’ grievance was held to be justified, however, the Bench denied to hold that the absence of reasons struck at the legitimacy of the impugned judgment. The Bench stated,

“…prejudice stood off-set with the interim orders of this court, which recognized the piquancy of the situation, and directed stay of further action against the appellants.”

However, the Bench deprecated the High Court’s conduct in not furnishing reasons, either at the time of pronouncement of the operative part of the judgment, or before the commencement of the next working day (of the court).

Motive of PIL

The appellant’s next challenge to the impugned judgment emphasized the need to keep out “busybodies” who “have no interest in matters of public interest” on the ground that the petitioners-respondents had personal motive as they were former Councillors of the municipality. Rejecting the contention of the appellants, the Bench expressed,

“The cause espoused by the said individuals was undoubtedly one of public interest, because it concerned housing for the economically disadvantaged sections of society, in such great numbers.”

The scheme was meant to benefit thousands of persons, and over a thousand housing units were to be constructed and allotted to the beneficiaries. Therefore, in view of the inquiries and the reports, the Bench held that the initiation of public interest proceedings was justified even if the public interest litigants’ motives were ambiguous, or not immediately bona fide, that could not have led to dismissal of the writ petition, before the High Court.

Right to be Heard

Lastly, rejecting the main arguments of the appellants that criminal proceedings had been initiated against them even though they were not heard in the public interest proceedings, and that being adverse to them the judgment was vitiated on account of their non-participation, the Bench opined that the High Court disposed of the PILs directing the Divisional Commissioner to take appropriate steps to its logical end as expeditiously as possible, making it evident that the High Court did not by itself direct initiation of investigation nor did it direct registration of an FIR, hence, the appellants were not required to be on party array. The Bench emphasised,

“Whilst the reasoning for the impugned judgment was undoubtedly published after a long and unexplained delay, the effect of its operative directions was not to per se prosecute.”

Moreover, the constructions were sub-standard – in respect of 100 such houses, so severe that the units were unusable and dilapidated which rendered the main objective of providing housing to 1206 eligible and deserving families unfulfilled despite expenditure of substantial amounts.

Hence, rejecting the argument of the appellants that they ought to have been heard even before action was initiated as unsound, since, according to the decision of the Constitutional Bench in Lalita Kumari v. Govt. of U.P., if there are allegations with respect to commission of cognizable offences, brought to the notice of the police authorities, ordinarily an FIR has to be lodged.

Verdict

Lastly, noticing that High Court did not comment on whether the allegations were true or whether the submissions on behalf of the petitioners justified their conduct or omission, and that the FIR was registered by the police following the imperative nature of the law declared in Lalita Kumari where it was held that a preliminary enquiry ordinarily is to be eschewed whenever cognizable offences are reported, the Bench dismissed the appeals.

[Shaikh Ansar Ahmad Md. Husain v. State of Maharashtra, 2021 SCC OnLine SC 867, decided on 05-10-2021]

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Kamini Sharma, Editorial Assistant has put this report together 

_________________________________________________________________________

Appearance by:

For the Appellants: Shyam Divan, Senior Advocate


*Judgment by: Justice S. Ravindra Bhat 

Know Thy Judge| Justice S. Ravindra Bhat

Kerala High Court
Case BriefsHigh Courts

Kerala High Court: V.G. Arun, J.,  dismissed the instant petition whereby the petitioner had challenged his re-incarceration contending violation of natural justice by authorities.

On 18-02-2011, the government ordered premature release of 209 prisoners who had completed imprisonment of 10 years (with remission) and above and in whose cases, favourable reports, either from the police or probation officer, had been received. The said order was challenged in Suo Motu v. State of Kerala, 2019 SCC OnLine Ker 335, before full Bench on the ground that the order was result of arbitrary exercise of power under Article 161 of the Constitution. The Court found out that power under Article 161 had been exercised without government applying its mind to the individual cases. Consequently, the impugned order was quashed and government was directed to examine the proposal for premature release of the 209 prisoners, afresh. Further, the Court directed government to consider the release of prisoners on two grounds namely, non-involvement in crime after release and favourable reports by police or probation officers.

Accordingly, a State Level Committee was constituted, which, after analysing each case, observed that among the 209 prisoners, 22 had expired, 27 had involved in criminal cases after release and the remaining 160 were not involved in any criminal activity and had lived with good conduct. Hence, the government issued an order directing 30 persons from among the 209 to be re-incarcerated, for completing the remaining period of their sentence.

The petitioner being one among the 30 ordered to be re-incarcerated was issued with summons from the trial court. Aggrieved by the order for his re-incarceration, the petitioner contended that government could not have ordered his re-incarceration without even affording an opportunity of hearing and the reason for re-incarceration being not discernible from the summon order, was indicative of absolute non-application of mind. It was further contended that,

Quashing of order for release by the Court did not absolve the government from complying with the fundamental principles of natural justice and fair play.

 The Bench observed the order of full Bench that in case of the Government failing to take a decision within six months, it would be deemed that there was no exercise of power under Article 161 in favour of the prisoners concerned and steps should be taken to re-incarcerate such prisoners for serving out the remainder of their sentence. The Bench stated,

All 209 prisoners were liable to be re-incarcerated, but, on humanitarian consideration, the Full Bench allowed the Government to consider the cases of prisoners who could be granted exemption from re-incarceration based on their exceptional conduct and favourable reports from all authorities.

Therefore, the consideration was to be made with respect to the prisoners who could be exempted and not about those who were to be re-incarcerated. Being so, the principle of audi alteram partem had no application in the case of petitioner. The petitioner got involved in two crimes after his release and did not satisfy the strict conditions imposed for being exempted from re-incarceration. Referring to the order of Full Bench, the Court emphasised it needs no reiteration that interim orders, unlike judgments, do not have any persuasive effect. [Ramesh K.S v. State of Kerala,  2021 SCC OnLine Ker 600, decided on 05-02-2021]


Kamini Sharma, Editorial Assistant has put this story together

Case BriefsSupreme Court

Supreme Court: The 3-judge bench of RF Nariman, Navin Sinha and KM Joseph has reiterated the principles of natural justice as follows:

(1) Natural justice is a flexible tool in the hands of the judiciary to reach out in fit cases to remedy injustice. The breach of the audi alteram partem rule cannot by itself, without more, lead to the conclusion that prejudice is thereby caused.

(2) Where procedural and/or substantive provisions of law embody the principles of natural justice, their infraction per se does not lead to invalidity of the orders passed. Here again, prejudice must be caused to the litigant, except in the case of a mandatory provision of law which is conceived not only in individual interest, but also in public interest.

(3) No prejudice is caused to the person complaining of the breach of natural justice where such person does not dispute the case against him or it. This can happen by reason of estoppel, acquiescence, waiver and by way of non-challenge or non-denial or admission of facts, in cases in which the Court finds on facts that no real prejudice can therefore be said to have been caused to the person complaining of the breach of natural justice.

(4) In cases where facts can be stated to be admitted or indisputable, and only one conclusion is possible, the Court does not pass futile orders of setting aside or remand when there is, in fact, no prejudice caused. This conclusion must be drawn by the Court on an appraisal of the facts of a case, and not by the authority who denies natural justice to a person.

(5) The “prejudice” exception must be more than a mere apprehension or even a reasonable suspicion of a litigant. It should exist as a matter of fact, or be based upon a definite inference of likelihood of prejudice flowing from the non-observance of natural justice

The court was hearing the challenging the cancellation of tender on the ground that it was “impractical” to go ahead with such tender. It was argued that such cancellation was illegal and arbitrary and against the principles of natural justice.

Applying the aforementioned principles to the facts of the case, the Court came to the conclusion that the respondent has been kept completely in the dark so far as the cancellation of the award of tender in his favour is concerned, the audi alteram partem rule having been breached in its entirety. Prejudice has indeed been caused to his client from the fact that one year of the contract period has been taken away.

[State of UP v. Sudhir Kumar Singh,  2020 SCC OnLine SC 847, decided on 16.10.2020]