PETITIONER:
GOKARAJU RANGARAJU ETC.
Vs.
RESPONDENT:
STATE OF ANDHRA PRADESH
DATE OF JUDGMENT15/04/1981
BENCH:
REDDY, O. CHINNAPPA (J)
BENCH:
REDDY, O. CHINNAPPA (J)
SEN, A.P. (J)
ISLAM, BAHARUL (J)
CITATION:
1981 AIR 1473 1981 SCR (3) 474
1981 SCC (3) 132 1981 SCALE (1)706
CITATOR INFO :
R 1983 SC 194 (51)
R 1987 SC 454 (10)
R 1987 SC1748 (18,19)
R 1987 SC2111 (12)
R 1988 SC 162 (20)
RF 1990 SC1480 (76)
ACT:
De facto doctrine-Nature and scope of-Appointment of
District Judge declared void-Judgment rendered by him,
whether becomes void.
Interpretation of Statutes-Abundans cautela non nocet
when applied-Legislature, whether makes superfluous
legislation.
HEADNOTE:
The appellants in both the appeals were convicted of
certain offences by two District Judges.' By the time the
appeals went up for hearing to the High Court, the
appointment of the two District Judges was quashed by this
Court as being in violation of Article 233 of the
Constitution.
The appellants contended before the High Court that
having regard to the fact that the Supreme Court had quashed
the appointment of District Judges, the judgments rendered
by them in these two cases became void. The High Court,
rejecting the contention, held that since the District
Judges held office under lawful authority, the judgments
rendered by them during the tenure of their office were
valid and that in any event the validity of the judgments
could not be questioned in collateral proceedings.
In appeal to this Court it was contended that trial by
a Sessions Judge appointed in violation of Article 233 was
not a trial by a Sessions Judge duly appointed to exercise
jurisdiction in a Court of Sessions under section 9, Cr.P.C.
and that the appellants' liberty was being taken away
otherwise than in accordance with the procedure established
by law and that the Constitution (Twentieth Amendment) Act,
1966 would be a surpluses if the de facto doctrine was
applied to judgments rendered by persons appointed as
District Judges contrary to the provisions of Article 233 of
the Constitution
Dismissing the appeals,
^
HELD: The two Judges who gave the judgments in the two
cases were not usurpers or intruders but were persons who
discharged the functions and duties of Judges under colour
of lawful authority. So long as an office is validity
created it matters not that the incumbent was not validity
appointed. A person appointed to a post of Sessions Judge
would be exercising jurisdiction in the
475
Court of Session and his judgments and orders would be those
of that court and would continue to be valid notwithstanding
that his appointment to such court might be declared
invalid. On that account alone it cannot be said that the
procedure prescribed by law had not been followed. [487 E-F]
Milward v. Thatsher [1787] 2 T. R. 81 @ 87, Seaddling
v. Lorant [1851] 3 HLC 418, re. James (An Insolvent) [1977]
2 W.L.R. 1, Norton v. Shelby Counrty [1886] 118 US 425-30
Law Ed. 178; referred to.
The doctrine of de facto envisages that acts permitted
de facto by the officers within the scope of their assumed
official authority, in the interest of the public or third
persons and not for their own benefit, are generally as
valid and binding as if they were the acts of officers de
jure [478 H]
The de facto doctrine is founded on good sense, sound
policy and practical expedience. It is aimed at the
prevention of public and private mischief and protection of
public and private interest. It avoids endless confusion and
needless chaos. An illegal appointment may be set aside and
a proper appointment may be made but the acts of those who
hold office de facto are not so easily undone. They may have
lasting repercussions and confusing sequels if attempted to
be undone. [479 B]
Pulin Behari v. King Emperor [1912] 15 Cal Law Journal
517 @ 574, Immedisetti Ramkrishnaiah Sons v. State of Andhra
Pradesh and Anr AIR 1976 A.P 193; referred to.
A defective appointment of a de facto judge cannot be
permitted to be questioned in a litigation between two
private litigants. If this were not so, so soon as a Judge
pronounces a judgment litigation may be commenced for a
declaration that the judgment was void because the judge was
no judge. To question a Judge's appointment in an appeal
against his judgment is such a collateral attack. [485 B-C]
The de facto doctrine saves acts done by a Judge whose
appointment has later been declared void, from being
invalidated. The doctrine is recognised in Article 71(2)
(which declares that acts done by the President in the
exercise of his powers shall not be invalidated by reason of
the election being declared void) and section 107(2) of the
Representation of the People Act, 1951 (which provides that
acts of a reason participating as member of Parliament or a
State Legislature shall not be declared invalid by reason of
his election being declared void). The doctrine, therefore,
is no stranger to the Constitution and the laws. [485 E-F]
The Constitution (Twentieth Amendment) Act, 1966 is an
instance where the de facto doctrine was applied to remove
and taint of illegality being attributed to the judgments or
orders passed by District Judges appointed before 1966
otherwise than in accordance with the provisions of Articles
233 and 235 of the Constitution and which appointments were
declared invalid by this Court in Chandra Mohan v. State of
U.P., [1967] 1 SCR 77. [485 H]
476
It is not a necessary inference from the Twentieth
Amendment That but for that amendment the judgments, decrees
etc. Of those District Judges would have been void. As a
general rule Parliament may be presumed not to make
superfluous legislation. But This presumption is not a
strong presumption in that it is not uncommon to find
statutes containing provisions introduced because abundas
cautela non nocet (there is no harm in being cautious). [486
C-D]
The statutory reiteration of the law, a clear judicial
pronouncement on a subject notwithstanding, only leads to
the inference that The statute making body, though mindful
of the real state of the law, was acting under the influence
of excessive caution. The Constitution (Twentieth Amendment)
Act, 1966 is one such instance. [486 E-F]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
234 of 1976.
Appeal by special leave from the judgment and order
dated the 5th December, 1975 of the Andhra Pradesh High
Court in Criminal Revision Case No. 816 of 1974 (Criminal
Revision Petition No. 732 of 1974).
AND
Criminal Appeal Nos. 315 and 316 of 1976.
Appeals by special leave from the judgment and order
dated the 12th April, 1976 of the Andhra Pradesh High Court
in Criminal Appeal Nos. 31 O & 311 of 1975.
P. Govindan Nair and A. Subba Rao for the Appellant in
Crl. A. No. 234/76.
M. N. Phadke, and B. Kanta Rao for the Appellant in
Crl. A. Nos.315 & 316 of 1976.
G. N. Rao for the Respondent in all the appeals.
The Judgment of the Court was delivered by
CHINNAPPA REDDY, J. What is the effect of the
declaration by the Supreme Court that the appointment of an
Additional Sessions Judge was invalid on judgments
pronounced by the Judge prior to such declaration is the
question for consideration in these criminal appeals. The
question may seem to be short and simple but it cannot be
answered without enquiry and research. An answer, on first
impression, may be ‘a judgment by a judge who is not a judge
is no judgment” a simple, sophisticated answer. But it
appears
477
second thoughts are necessary. What is to happen to titles
settled, declarations made, rules issued, injunctions and
decrees granted and even executed ? What is to happen to
sentences imposed ? Are convicted offenders to be set at
liberty and to be tried again ‘! Are acquitted accused to be
arrested and tried again ? Public Policy is clearly
involved. And, in the tangled web of human affairs, law must
recognise some consequences as relevant, not on grounds of
pure logic but for reasons of practical necessity. To clear
the confusion and settle the chaos, judges have invented the
de facto doctrine, which we shall presently examine. de
facto doctrine is thus a doctrine of necessity and public
policy.
Crl. A. No. 234 of 1976 arises out of a proceeding
under S.6A of the Essential Commodities Act, by which the
District Revenue officer West Godavari, Andhra Pradesh,
ordered the confiscation of Rs. 203.74 kgs. Of paddy and Rs.
302.25 kgs. of rice. The appellant, Gokaraju Rangaraju,
preferred an appeal under S. 6C of the Essential Commodities
Act to the Court of Session, West Godavari. The appeal was
heard by Shri G. Anjappa, Additional Sessions Judge and was
rejected. The appellant preferred a Criminal Revision
Petition before the High Court of Andhra Pradesh. Criminal
Appeal Nos. 315 and 316 of 1976 arise out of Sessions Case
No. 12 of 1975 in the Court of Session, Guntur Division’ The
case was heard and the judgment was pronounced by Shri Raman
Raj Saxena, II Additional Sessions Judge, Guntur. The
convicted accused preferred appeals to the High Court of
Andhra Pradesh. By the time the Criminal Revision case filed
by Gokaraju Rangaraju and the Criminal Appeals filed by the
appellants in Crl. Appeals Nos. 315 and 316 of 1976 came up
for hearing before the High Court of Andhra Pradesh, this
Court by its judgment dated 2nd September 1975 quashed the
appointment of Shri G. Anjappa, Shri Raman Raj Saxena and
two others as District Judges Grade II, on the ground that
their appointment was in violation of the provisions of Art.
233 of the Constitution. Thereupon a point was raised in the
Criminal Revision case as well as in the Criminal Appeals
that the judgments rendered by Shri Anjappa and Shri Raman
Raj Saxena were void and required to be set aside. The High
Court overruled the point raised by the present appellants
and held that though the appointment of Shri Anjappa and
Shri Raman Raj Saxena as District Judges Gr. II was invalid,
yet they were not mere usurpers but had held office under
lawful H authority and therefore, the judgments rendered by
them were valid and could not be questioned in collateral
proceedings. The present
478
appeals have been preferred by special leave granted by this
Court. In Criminal Appeals Nos. 315 and 316 of 1976,
however, the special leave granted by this Court was limited
by the order granting leave to the question whether the
judgments rendered by Sessions Judges were void where their
appointment as Sessions Judges was subsequently declared
illegal.
Shri Govindan Nayar learned counsel for the appellants
in Crl. A. No. 234 of 1976 and Shri Phadke, learned counsel
for the appellants in Crl. Appeals Nos. 315 & 316 of 1976,
argued before us that the judgments rendered by Shri Anjappa
and Shri Raman Raj Saxena were void as they were never duly
appointed as District Judges. It was urged that there was no
need for them to question the appointment of Shri Anjappa or
Shri Kaman Raj Saxena as their appointment had already been
quashed by the Supreme Court. It was said that the de facto
doctrine was based on public policy and necessity and that
in the present case neither public policy or necessity
required that the judgments should not be set aside. No
inconvenience would be caused by ordering a rehearing of the
appeals or a retrial of the accused. It was also urged that
the attack, if any, on the appointment of Shri Anjappa and
Shri Raman Raj was not collateral attack. It was submitted
that a question of jurisdiction could be raised at any stage
in a criminal case and a trial by a Sessions Judge who was
appointed in violation of Art. 233 was not a trial by a
Sessions Judge duly appointed to exercise jurisdiction in a
Court of Session under S. 9 of the Code of Criminal
Procedure. It was argued that the de facto doctrine was not
an absolute doctrine. It was subject to certain limitations.
One such limitation was that imposed by Art. 233 of the
Constitution. A person appointed as a District Judge
contrary to the provisions of Art. 233 was no judge and his
judgments were no judgments. It was submitted that the 20th
Amendment of the Constitution would be a surplusage if the
de facto doctrine was to be applied to judgments rendered by
persons appointed as District Judges contrary to the
provisions of Art. 233 of the Constitution. It was also
suggested that the Fundamental Right of the appellants under
Art. 21 of the Constitution was violated as their liberty
was being taken away otherwise than in accordance with the
procedure established by law.
We are unable to agree with the submissions of the
learned counsel for the appellants. The doctrine is now well
established that “the acts of the officers de facto
performed by them within the scope of their assumed official
authority, in the interest of the public
479
or third persons and not for their own benefit, are
generally as valid and binding, as if they were the acts of
officers de jure” (Pulin Behari v. King Emperor). As one of
us had occasion to point out earlier “the doctrine is
founded on good sense, sound policy and practical
expedience. It is aimed at the prevention of public and
private mischief and the protection of public and private
interest. It avoids endless confusion and needless chaos. An
illegal appointment may be set aside and a proper
appointment may be made, but the acts of those who hold
office de facto are not so easily undone and may have
lasting repercussions and confusing sequels if attempted to
be undone. Hence the de facto doctrine” (vide Immedisetti
Ramkriashnaiah Sons v. State of Andhra Pradesh and Anr.
In Pulin Behari v. King Emperor, (Supra) Sir Ashutosh
Mukerjee J. noticed that in England the de facto doctrine
was recognised from the earliest times. The first of the
reported cases where the doctrine received judicial
recognition was the case of Abbe of Fountaine decided in
1431. Sir Ashutosh Mookerjee noticed that even by 1431 the
de facto doctrine appeared to be quite well known and, after
1431, the doctrine was again and again reiterated by English
Judges.
In Milward v. Thatcher, Buller J. said:
“The question whether the judges below be properly
judges or not. can never be determined, it is
sufficient if they be judges de facto. Suppose a person
were even criminally convicted in a Court of Record,
and the Recorder of such Court were not duly elected,
the conviction would still be good in law, he being the
judge de facto”.
In Seaddling v. Lorant, the question arose whether a
rate for the relief of the poor was rendered invalid by the
circumstance that some of the vestry men who made it were
vestry men de facto and not de jure. The Lord Chancellor
observed as follows:
With regard to the competency of the vestry men,
who were vestry men de facto, but not vestry men de
jure, to make the rate, your Lordships will see at once
the impor-
480
tance of that objection, when you consider how many
public officers and persons there are who were charged
with very important duties, and whose title to the
office on the part of the public cannot be ascertained
at the time. You will at once see to what it would lead
if the validity of their acts, when in such office,
depended upon the propriety of their election. It might
tend, if doubts were cast upon them, to consequences of
the most destructive kind. It would create uncertainty
with respect to the obedience to public officers and it
might also lead to persons, instead of resorting to
ordinary legal remedies to set right anything done by
the officers, taking the law into their own hands”.
Some interesting observations were made by the Court of
Appeal in England in re James (An Insolvent). Though the
learned Judges constituting the Court of Appeal differed on
the principal question that arose before them namely whether
“the High Court of Rhodesia” was a British Court, there did
not appear to be any difference of opinion on the question
of the effect of the invalidity of the appointment of a
judge on the judgments pronounced by him. Lord Denning M.
R., characteristically, said: “He sits in the seat of a
judge. He wears the robes of a judge. He holds the office of
a judge. May be he was not validly appointed. But, still, he
holds the office. It is the office that matters, not the
incumbent ……. so long as the man holds the office and
exercises it duly and in accordance with law, his orders are
not a nullity. If they are erroneous they may be upset on
appeal. But if not erroneous they should be upheld”. Lord
Denning then proceeded to refer to the State of Connecticut
v. Carroll decided by the Supreme Court of Connecticut, Re
Aldridge decided by the Court of Appeal in New Zealand and
Norton v. Shelby County decided by the United States Supreme
Court. Observations made in the last case were extracted and
they were:
“Where an office exists under the law, it matters
not how the appointment of the incumbent is made, so
far as the validity of his acts are concerned. It is
enough that he is clothed with the insignia of the
office, and exercises its powers and functions.. The
official acts of such persons are recognised as valid
on grounds of public policy, and for the protection of
those having official business to transact.”
481
Scarman LJ who differed from Lord Denning on the
question whether the High Court of Rhodesia was a British
Court appeared to approve the view of Lord Denning M. R. in
regard to the de facto doctrine. He said:
“He (Lord Denning) invokes the doctrine of
recognition of the de facto judge, and the doctrine of
implied mandate or necessity. I agree with much of the
thinking that lies behind his judgment. I do think that
in an appropriate case our courts will recognise the
validity of judicial acts, even though they be the acts
of a judge not lawfully appointed or derive their
authority from an unlawful government. But it is a
fallacy to conclude that, because in certain
circumstances our Courts would recognise as valid the
judicial acts of an unlawful court or a de facto judge,
therefore, the Court thus recognised is a British
Court”.
The de facto doctrine has received judicial recognition
in the United States of America also. In State v. Gardner
(Cases on Constitutional Law by Mc. Gonvey and Howard Third
Edition 102) the question arose whether the offer of a bribe
to a City Commissioner whose appointment was
unconstitutional was an offence. Broadbury, J. said.
“We think that principle of public policy,
declared by the English Courts three centuries ago,
which gave validity to the official acts of persons who
intruded themselves into an office to which they had
not been legally appointed, is as applicable to the
conditions now presented as they were to the conditions
that then confronted the English Judiciary. We are not
required to find a name by which officers are to be
known, who have acted under a statute that has
subsequently been declared unconstitutional, though we
think such officers might aptly be called de facto
officers.”
In Norton v. Shelby Country, Field, J., observed as
follows:
“The doctrine which gives validity to acts of
officers de facto whatever defects there may be in the
legality of their appointment or election is founded
upon considerations of policy and necessity, for the
protection of the pub-
482
lic and individuals whose interests may be affected
thereby. Offices are created for the benefit of the
public, and private parties are not permitted to
inquire into the title of persons clothed with the
evidence of such offices and in apparent possession of
their powers and functions. For the good order and
peace of society their authority is to be respected and
obeyed until in some regular mode prescribed by law
their title is investigated and determined. It is
manifest that endless confusion would result, if in
every proceeding before such officers their title could
be called in question.”
In Cooley’s ‘Constitutional Limitations’, Eighth
Edition, Volume II p. 1 355, it is said,
“An officer de facto is one who by some colour or
right is in possession of an office and for the time
being performs its duties with public acquiescence,
though having no right in fact. His colour of right may
come from an election or appointment made by some
officer or body having colourable but no actual right
to make it; or made in such disregard of legal
requirements as to be ineffectual in law; or made to
fill the place of an officer illegally re-moved or made
in favour of a party not having the legal
qualifications; or it may come from public acquiescence
in the qualifications; or it may come from public
acquiescence in the officer holding without performing
the precedent conditions, or holding over under claim
of right after his legal right has been terminated; or
possibly from public acquiescence alone when
accompanied by such circumstances of official
reputation as are calculated to induce people, without
inquiry, to submit to or invoke official action on the
supposition that the person claiming the office is what
he assumes to be. An intruder is one who attempts to
perform the duties of an office without authority of
law, and without the support of public acquiescence.
No one is under obligation to recognise or respect
the acts of an intruder, and for all legal purposes
they are absolutely void. But for the sake of order and
regularity, and to prevent confusion in the conduct of
public business and in security of private rights, the
acts of officers de facto are not suffered to be
questioned because of the want of legal authority
except by some direct proceeding instituted for
483
the purpose by the State or by some one claiming the
office de jure, or except when the person himself
attempts to build up some right, or claim some
privilege or emolument, by reason of being the officer
which he claims to be. In all other cases the acts of
an officer de facto are as valid and effectual, while
he is suffered to retain the office, as though he were
an officer by right, and the same legal consequences
will flow from them for the protection of the public
and of third parties. There is an important principle,
which finds concise expression in the legal maxim that
the acts of officers de facto cannot be questioned
collaterally.”
In Black on judgments it is said:
“A person may be entitled to his designation
although he is not a true and rightful incumbent of the
office, yet he is no mere usurper but holds it under
colour of lawful authority. And there can be no
question that judgments rendered and other acts
performed by such a person who is ineligible to a
judgeship but who has nevertheless been duly appointed,
and who exercises the power and duties of the office is
a de facto judge, and his acts are valid until he is
properly removed.”
The de facto doctrine has been recognised by Indian
Courts also. In Pulin Behari v. King Emperor, Sir Ashutosh
Mookerjee, J after tracing the history of the doctrine in
England observed as follows:
“The substance of the matter is that the de facto
doctrine was introduced into the law as a matter of
policy and necessity, to protect the interest of the
public and the individual where these interests were
involved in the official acts of persons exercising the
duties of an office without being lawful officers. The
doctrine in fact is necessary to maintain the supremacy
of the law and to preserve peace and order in the
community at large. Indeed, if any individual or body
of individuals were permitted, at his or their
pleasure, to collaterally challenge the authority of
and to refuse obedience to the Government of the State
and the numerous functionaries through whom it
exercised its various
484
powers on the ground of irregular existence or
defective title, insubordination and disorder of the
worst kind would be encouraged. For the good order and
peace of society, their authority must be upheld until
in some regular mode their title is directly
investigated and determined.”
In P. S. Menon v. State of Kerala and Ors. a Full Bench
of the Kerala High Court consisting of P. Govindan Nair,
K.K. Mathew and T.S. Krishnamoorthy Iyer, JJ said about the
de facto doctrine:
“This doctrine was engrafted as a matter of policy
and necessity to protect the interest of the public and
individual involved in the official acts of persons
exercising the duty of an officer without actually
being one in strict point of law. But although these
officers are not officers de jure they are by virtue of
the particular circumstances, officers, in fact, whose
acts, public policy requires should be considered
valid”.
In the judgment under appeal Kuppuswami and Muktadar,
JJ observed:
“Logically speaking if a person who has no
authority to do so functions as a judge and disposes of
a case the judgment rendered by him ought to be
considered as void and illegal, but in view of the
considerable inconvenience which would be caused to the
public in holding as void judgments rendered by judges
and other public officers whose title to the office may
be found to be defective at a later date. Courts in a
number of countries have, from ancient times evolved a
principle of law that under certain conditions, the
acts of a judge or officer not legally competent may
acquire validity”.
A judge, de facto, therefore, is one who is not a mere
intruder or usurper but one who holds office, under colour
of lawful authority, though his appointment is defective and
may later be found to be defective. Whatever be the defect
of his title to the office, judgments pronounced by him and
acts done by him when he was clothed with the powers and
functions of the office, albeit unlawfully, have the same
efficacy as judgments pronounced and acts done by a Judge de
485
jure. Such is the de facto doctrine, born of necessity and
public policy to prevent needless confusion and endless
mischief. There is yet another rule also based on public
policy. The defective appointment of a de facto judge may be
questioned directly in a proceeding to which he be a party
but it cannot be permitted to be questioned in a litigation
between two private litigants, a litigation which is of no
concern or consequence to the judge except as a judge. Two
litigants litigating their private titles cannot be
permitted to bring in issue and litigate upon the title of a
judge to his office. Otherwise so soon as a judge pronounces
a judgment a litigation may be commenced for a declaration
that the judgment is void because the judge is no judge. A
judge’s title to his office cannot be brought into jeopardy
in that fashion. Hence the rule against collateral attack on
validity of judicial appointments. To question a judge’s
appointment in an appeal against the judgment is, of course,
such a collateral attack.
We do not agree with the submission of the learned
counsel that the de facto doctrine is subject to the
limitation that the defect in the title of the judge to the
office should not be one traceable to the violation of a
constitutional provision. The contravention of a
constitutional provision may invalidate an appointment but
we are not concerned with that. We are concerned with the
effect of the invalidation upon the acts done by the judge
whose appointment has been invalidated. The de facto
doctrine saves such Acts. The de facto doctrine is not a
stranger to the Constitution or to the Parliament and the
Legislatures of the States. Art. 71(2) of the Constitution
provides that acts done by the President or Vice President
of India in the exercise and performance of the powers and
duties of his office shall not be invalidated by reason of
the election of a person as President or Vice President
being declared void. So also Sec. 107(2) of the
Representation of the People Act 1951 (Act 43 of 1951)
provides that acts and proceedings in which a person has
participated as a Member of Parliament or a Member of the
Legislature of a State shall not be invalidated by reason of
the election of such person being declared to be void. There
are innumerable other Parliamentary and State Legislative
enactments which are replete with such provisions. The
Twentieth Amendment of the Constitution is an instance where
the de facto doctrine was applied by the Constituent body to
remove any suspicion or taint of illegality, or invalidity
that may be argued to have attached itself to judgment,
decrees sentences or orders passed or made by certain
District Judges appointed before 1966, otherwise than in
accordance with the provision of Art. 233 and Art 235 of
486
the Constitution. The Twentieth Amendment was the
consequence of the decision of the Supreme Court in Chandra
Mohan v. State of Uttar Pradesh and Ors., that appointments
of District Judges made otherwise than in accordance with
the provisions of Arts. 233 and 235 were invalid. As such
appointments had been made in many States, in order to
preempt mushroom litigation springing up all over the
country, it was apparently thought desirable that the
precise position should be stated by the Constituent body by
amending the Constitution. Shri Phadke, learned counsel for
the appellants, argued that the constituent body could not
be imputed with the intention of making superfluous
amendments to the Constitution. Shri Phadke invited us to
say that it was a necessary inference from the Twentieth
Amendment of the Constitution that, but for the amendment,
the judgments, decrees etc. of the District Judges appointed
otherwise than in accordance with the provisions of Art. 233
would be void. We do not think that the inference suggested
by Shri Phadke is a necessary inference. It is true that as
a general rule the Parliament may be presumed not to make
superfluous legislation. The presumption is not a strong
presumption and statutes are full of provisions introduced
because abundans cautela non nocet (there is no harm in
being cautious). When judicial pronouncements have already
declared the law on the subject, the statutory reiteration
of the law with reference to the particular cases does not
lead to the necessary inference that the law declared by the
judicial pronouncements was not thought to apply to the
particular cases but may also lead to the inference that the
statute-making body was mindful of the real state of the law
but was acting under the influence of excessive caution and
so to silence the voices of doubting Thomases by declaring
the law declared by judicial pronouncements to be applicable
also to the particular cases. In Chandra Mohan’ case (Supra)
this Court held that appointments of District Judges made
otherwise than in accordance with Art. 233 of the
Constitution were invalid. Such appointments had been made
in Uttar Pradesh and a few other States. Doubts had been
cast upon the validity of the judgments, decrees etc.
pronounced by those District Judges and large litigation had
cropped up. It was to clear those doubts and not to alter
the law that the Twentieth Amendment of the Constitution was
made. This is clear from the statement of objects and
reasons appended to the Bill which was passed as
Constitution (20th Amendment) Act. 1966. The statement said:
487
“Appointments of District Judges in Uttar Pradesh and a
few other States have been rendered invalid and illegal
by a recent judgment of the Supreme Court on the ground
that such appointments were not made in accordance with
the provisions of Art. 233 of the Constitution…. As a
result of these judgments, a serious situation has
arisen because doubt has been thrown on the validity of
the judgments, decrees, orders and sentences passed or
made by these District Judges and a number of Writ
Petitions and other cases have already been filed
challenging their validity. The functioning of the
District Courts in Uttar Pradesh has practically come
to a stand-still. It is, therefore, urgently necessary
to validate the judgments, decrees, orders and
sentences passed or made heretofore by all such
District Judges in those States……”
In our view, the de facto doctrine furnishes an answer
to the submissions of Shri Phadke based on Sec. 9 Criminal
Procedure Code and Art. 21 of the Constitution. The judges
who rejected the appeal in one case and convicted the
accused in the other case were not mere usurpers or
intruders but were persons who discharged the functions and
duties of judges under colour of lawful authority. We are
concerned with the office that the judges purported to hold.
We are not concerned with the particular incumbents of the
office. So long as the office was validly created, it
matters not that the incumbent was not validly appointed. A
person appointed as a Sessions Judge, Additional Sessions
Judge or Assistant Sessions Judge, would be exercising
jurisdiction in the Court of Session, and his judgments and
orders would be those of the Court of Session. They would
continue to be valid as the judgments and orders, of the
Court of Session, notwithstanding that his appointment to
such Court might be declared invalid. On that account alone,
it can never be said that the procedure prescribed by law
has not been followed. It would be a different matter if the
constitution of the Court itself is under challenge. We are
not concerned with such situation in the instant cases. We,
therefore, find no force in any of the submissions of the
learned counsel.
Shri Govindan Nair attempted to argue that the
confiscation was not justified on the merits. We find no
reason to interfere with
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the concurrent findings of fact arrived at by the lower
Courts. Shri Phadke requested us to widen the scope of the
appeals and to permit him to canvas the correctness of the
convictions and sentences also. We declined to do so. All
the appeals are dismissed.
P.B.R Appeals dismissed.
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