Supreme Court of India
BHARTI ARORAversusTHE STATE OF HARYANA
- Citation
- [2024] 12 S.C.R. 1044
- Decided
- 13 December 2024
- Disposal
- Appeal(s) allowed
Holding
The Special Judge lacked jurisdiction to try the appellant for the offence under Section 58 of the NDPS Act, the proceedings violated natural‑justice principles, and the notice and subsequent orders are quashed.
Summary
The appellant, a former Superintendent of Police, was implicated by a Special Judge for allegedly fabricating a false story that led to the recovery of opium and was issued a show‑cause notice under Section 58 of the NDPS Act. The Special Judge recorded adverse findings against her and other officers without giving them notice or an opportunity to be heard, and later sealed an order dated 30 May 2008. The appellant challenged the jurisdiction of the Special Judge, arguing that offences punishable with imprisonment of up to three years under the NDPS Act must be tried summarily by a magistrate under Section 36‑A(5) and the CrPC, and that the proceedings violated principles of natural justice and the protection of good‑faith actions under Section 69. The Supreme Court held that the Special Judge lacked jurisdiction, the notice and subsequent orders were vitiated by denial of natural justice, and the appellant’s actions were protected in good faith. Consequently, the High Court’s judgment upholding the Special Judge’s order was quashed and the appeal was allowed.
Issues considered
- Whether a Special Judge has jurisdiction to try an offence punishable under Section 58 of the NDPS Act.
- Whether the Special Judge was justified in recording adverse findings and issuing a notice without giving notice or an opportunity to be heard, thereby violating principles of natural justice.
- Whether offences punishable with imprisonment of up to three years under the NDPS Act must be tried summarily by a magistrate under Section 36‑A(5) and the CrPC.
- Whether the appellant’s actions were protected by the good‑faith immunity provision of Section 69 of the NDPS Act.
- Whether a sanction under Section 197 of the CrPC was required for proceeding against a public servant.
Legislation cited
- Code of Criminal Procedure, 1973s. 251, s. 252, s. 253, s. 254, s. 255, s. 256, s. 260, s. 262
- General Clauses Act, 1897s. 3(22)
- Indian Penal Code, 1860s. 166, s. 167
- Narcotic Drugs and Psychotropic Substances Act, 1985s. 36-A, s. 58, s. 69
Headnote
Issue for Consideration Whether the Special Judge could have conducted the proceedings against the present appellant for the offence punishable u/s.58 of the Narcotic Drugs and Psychotropic Substances Act, 1985; whether the Special Judge was justified in recording the findings against as the other police officers without even issuing notice to them. Headnotes† Narcotic Drugs and Psychotropic Substances Act, 1985 – ss.36-A, 58 – In a trial regarding recovery of the opium from the accused persons, the Special Judge vide final judgment dated 22.02.2007
Subjects
Good faithNatural JusticePrinciple of Natural JusticeSpecial JudgeJudicial MagistrateMetropolitan MagistrateNoticeSummary trialSection 58 NDPSSection 36-A NDPS
Judgment
[2024] 12 S.C.R. 1044 : 2024 INSC 976
Bharti Arora
v.
The State of Haryana
(Criminal Appeal No. 1699 of 2011)
13 December 2024
[B.R. Gavai,* Prashant Kumar Mishra
and K.V. Viswanathan, JJ.]
Issue for Consideration
Whether the Special Judge could have conducted the proceedings
against the present appellant for the offence punishable u/s.58
of the Narcotic Drugs and Psychotropic Substances Act, 1985;
whether the Special Judge was justified in recording the findings
against the appellant as well as the other police officers without
even issuing notice to them.
Headnotes†
Narcotic Drugs and Psychotropic Substances Act, 1985 –
ss.36-A, 58 – In a trial regarding recovery of the opium from
the accused persons, the Special Judge vide final judgment
dated 22.02.2007 convicted one RS and acquitted three
accused persons – The Special Judge observed in the said
judgment that the story wherein RS was implicated by the
trio was made up by the Senior Police officials including the
appellant herein and it was found to be false and concocted,
and hence on 26.02.2007 show-cause notice u/s.58 of the NDPS
Act was issued against the appellant – The challenge to the
show cause notice before the High Court was dismissed – On
30.05.2008, the Special Judge placed the typed and dictated
order in a sealed cover and adjourned the matter – Appellant
filed Criminal Revision – The High Court, vide the impugned
final judgment and order dated 14.10.2010 dismissed the
Criminal Revision and upheld the order of the Special Judge
dated 30.05.2008:
Held: The proceedings which were initiated by the Special Judge
against the appellant were for the offence punishable for which the
maximum sentence provided in the NDPS Act was up to two years –
* Author
[2024] 12 S.C.R. 1045
Bharti Arora v. The State of Haryana
s.36-A (5) of the NDPS Act which begins with the non-obstante
clause provides that notwithstanding anything contained in the
Cr.P.C., the offences punishable under this Act with imprisonment
for a term of not more than three years may be tried summarily –
So, the statutory scheme, according to the provisions of s.36-A(5)
of the NDPS Act, prescribes that, for convicting a person u/s.
58 of the NDPS Act, he/she must be tried summarily – Further,
s.260 of the Cr.P.C. provides that the power to try summarily is
with any Judicial Magistrate, any Metropolitan Magistrate or any
Magistrate of the first class specially empowered in this behalf by
the High Court – It is thus clear that the Special Judge could not
have conducted the proceedings against the present appellant for
the offence punishable u/s.58 of the NDPS Act inasmuch as such
proceedings could have been conducted only by a Magistrate – In
the Judgment and order dated 22/24.02.2007, the Special Judge
recorded the findings against the appellant as well as the other
police officers without even issuing notice to them – The Special
Judge almost found her guilty of the offence punishable u/s. 58
of the NDPS Act – Moreover while doing so, neither any notice
nor was any opportunity of being heard given to her – Within 10
days, from 20.05.2008 to 30.05.2008, the Special Judge directed
the matter to be heard on 7 dates – During the said period, the
appellant was directed to supervise and ensure the maintenance
of law and order inasmuch as the situation had deteriorated on
account of some agitation where she was posted – The same was
also brought to the notice of the Special Judge – However, on
30.05.2008, the Special Judge proceeded to dictate and type the
order and kept the same in a sealed cover – It is thus clear that
the Special Judge had given a complete go-bye to all the principles
of natural justice – The Special Judge acted in a predetermined
manner – There was total non-application of mind – Thus, the
judgment and order dated 14.10.2010 passed by the High Court
in Criminal Revision, judgment and order of conviction/acquittal
dated 22/24.02.2007 in paragraphs 49 and 50 and the notice issued
by the Special Judge dated 26.02.2007 to the appellant u/s. 58
of the NDPS Act and all subsequent proceedings including the
order dictated and typed on 30.05.2008 by the Special Judge are
quashed and set aside. [Paras 21, 24, 25, 26, 33, 35, 40]
Narcotic Drugs and Psychotropic Substances Act, 1985 –
s.69 – Protection of action taken in good faith – discussed.
[Paras 28-31]
1046 [2024] 12 S.C.R.
Supreme Court Reports
Case Law Cited
General Officer Commanding, Rashtriya Rifles v. Central Bureau
of Investigation and Another 2012 INSC 196 : [2012] 5 SCR 599 :
(2012) 6 SCC 228; State of West Bengal and Others v. Babu
Chakraborthy 2004 INSC 492 : [2004] Supp. 4 SCR 17 : (2004)
12 SCC 201; P.D. Dinakaran (I) v. Judges Inquiry Committee and
Others 2011 INSC 452 : [2011] 10 SCR 1064 : (2011) 8 SCC
380 – relied on.
Tofan Singh v. State of Tamil Nadu 2020 INSC 620 : [2020] 12
SCR 583 : (2021) 4 SCC 1; Sukhpal Singh Khaira v. State of
Punjab 2022 INSC 1250 : [2022] 10 SCR 156 : (2023) 1 SCC
289 – referred to.
List of Acts
Narcotic Drugs and Psychotropic Substances Act, 1985; General
Clauses Act, 1897
List of Keywords
Good faith; Natural Justice; Principle of Natural Justice; Special
Judge; Judicial Magistrate; Metropolitan Magistrate; Notice.
Case Arising From
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1699 of 2011
From the Judgment and Order dated 14.10.2010 of the High Court
of Punjab & Haryana at Chandigarh in CRLR No. 2194 of 2008
Appearances for Parties
Atmaram N.S. Nadkarni, Sr. Adv., Divyakant Lahoti, Bijender
Singh, Tejasvi Kumar, Ambar Qamaruddin, Shashank Garg,
Kumar Vinayakam Gupta, S.S. Rebello, Ms. Deepti Arya, A. Parul,
Ms. Manisha Gupta, Ms. Himanshi Nagpal, Rishikesh Haridas,
Yanthanshan Yantha, Ms. Himani Verma, Advs. for the Appellant.
Lokesh Sinhal, Sr. A.A.G. Rajesh Kumar Singh, A.A.G. Samar
Vijay Singh, Nikunj Gupta, Ms. Himanshi Sakhya, Fateh Singh,
Ms. Aakanksha, Advs. for the Respondent.
[2024] 12 S.C.R. 1047
Bharti Arora v. The State of Haryana
Judgment / Order of the Supreme Court
Judgment
B.R. Gavai, J.
INDEX*
Sl. No. Particulars Para Nos.
I. INTRODUCTION 1
II. FACTS 2-2 to 2.19
III. SUBMISSIONS 3 to 14
IV. CONSIDERATION 15 to 37
a. Interpretation of the provisions of
the NDPS Act and Cr.P.C. 18 to 26
b. Good Faith 27 to 31
c. Violation of Principles of Natural
Justice 32 to 37
V. CONCLUSION 38 to 41
I. INTRODUCTION:
1. The present appeal challenges the final judgment and order dated
14th October 2010, passed by the learned Single Judge of the High
Court of Punjab and Haryana at Chandigarh in Criminal Revision
No. 2194 of 2008, whereby the learned Single Judge dismissed the
Criminal Revision filed by the appellant herein and upheld the order
dated 30th May 2008 passed by the Presiding Officer,1 Special Court,
Kurukshetra wherein the learned Special Judge placed the typed
and dictated order relating to the proceedings initiated against the
appellant for the offence punishable under Section 58 of the Narcotic
* Ed. Note: Pagination as per the original Judgment.
1 ‘Special Judge’ hereinafter.
1048 [2024] 12 S.C.R.
Supreme Court Reports
Drugs and Psychotropic Substances Act, 19852 in a sealed cover
to be delivered by the successor learned Special Judge.
II. FACTS:
2. Shorn of details, the facts leading to the present appeal are as under:
2.1. The appellant was posted as the Superintendent of Police,3
Kurukshetra from the period 21st May 2004 to 18th March 2005.
2.2. On 6th January 2005, Inspector Ram Kumar, along with other
Police officials, was present at the ‘T’ point in village Masana
on G.T. Road, District Kurukshetra in a Government Vehicle,
for the purpose of patrolling. Secret information was received
that one Ran Singh, who was involved in the sale of Opium,
was having a large quantity of Opium with him and could be
apprehended. Based on this, a raiding party was formed which
reached the residence of Ran Singh. Shri Virender Kumar
Vij, Deputy Superintendent of Police,4 reached the spot and
he directed a search to be conducted. Ran Singh was found
near his residence, and he had covered himself in a blanket.
He was apprehended and was found holding a white coloured
plastic bag in his right hand. The plastic bag was searched and
Opium weighing 8 Kgs. 700 grams was recovered. Based on
the aforementioned facts, a First Information Report5 No. 08 of
2005 was registered at Police Station, Shahbad, Kurukshetra
for the commission of offence punishable under Section 18
of the NDPS Act. As per the report of the Forensic Science
Laboratory, Haryana, Madhuban, Karnal, the material recovered
was found to be Opium.
2.3. On 8th January 2005, an application was filed by Ran Singh
through a relative, wherein he claimed that he was innocent,
and that the Opium had been planted upon him by one Surjeet
Singh and others. The appellant, utilizing her powers as the
S.P., took cognizance of the application and directed Shri Ram
Phal, D.S.P. to conduct an inquiry. The inquiry was conducted,
2 ‘NDPS Act’ hereinafter.
3 ‘S.P’ hereinafter.
4 ‘D.S.P.’ hereinafter.
5 ‘F.I.R.’ hereinafter.
[2024] 12 S.C.R. 1049
Bharti Arora v. The State of Haryana
and the report was submitted on the same day, wherein it
was revealed that Ran Singh was innocent, and the Opium
had been planted by Surjeet Singh, Angrez Singh and Mehar
Deen. The report was sent to the appellant on the next day,
i.e. 9th January 2005, and on the same day, the discharge
report of Ran Singh was prepared. A discharge application was
filed by Ran Singh on 10th January 2005 before the learned
Special Judge, but the same was dismissed by order dated
20th January 2005.
2.4. The appellant was transferred on 18th March 2005, and joined
as S.P., Government Railway Police, Haryana. Meanwhile, the
investigation was concluded and the final report under Section
173 of the Code of Criminal Procedure, 1973,6 was filed on
24th March 2005. The final report revealed that the Opium was
planted by Surjeet Singh, Angrez Singh and Mehar Deen and
they were made the accused persons.
2.5. Ran Singh filed another application for discharge on the
grounds that he was not named in the final report, but the
learned Special Judge vide order dated 27th September 2005
dismissed the discharge application observing that the conduct
of the Investigating Agency is suspicious and further, requested
the Director General of Police, Haryana and Inspector general
of Police, Ambala Range, Ambala to conduct an enquiry into
the matter, as commercial quantity of Opium was involved and
the Police officers involved in the case had sought discharge
of the prime accused after merely three days of his arrest.
Pursuant to the order dated 27th September 2005, the report
was submitted wherein it was maintained that Ran Singh was
innocent, and that the Opium was planted by the three accused
due to some pre-existing enmity.
2.6. The trial was conducted, and the learned Special Judge vide
final judgment dated 22nd February 2007 convicted Ran Singh
and acquitted Surjeet Singh, Angrez Singh and Mehar Deen.
The learned Special Judge observed in the said judgment that
the story wherein Ran Singh was implicated by the trio was
made up by the Senior Police officials including the appellant
6 ‘Cr.P.C.’ Hereinafter.
1050 [2024] 12 S.C.R.
Supreme Court Reports
herein and it has been found to be false and concocted, and
hence Show-Cause Notice must be issued to them as to why
proceedings under Section 58 of the NDPS Act must not be
initiated against them.
2.7. The learned Special Judge vide order dated 26th February
2007 issued Show-Cause Notice to the appellant under Section
58 of NDPS Act and directed her to remain present before
the court on 15th March 2007. Pursuant to the said order, the
appellant appeared before the learned Special Judge along
with her counsel and the matter was adjourned to 12th April
2007 for filing of her reply to the notice. The reply was filed
by the appellant.
2.8. The appellant challenged the Show-Cause Notice dated 26th
February 2007 by way of Criminal Revision No. 956 of 2007
before the High Court, which was dismissed vide order dated
19th May 2008. It was observed that, prima facie, the allegations
made against the appellant herein cannot be said to be false
or not based on material on record. However, it was clarified
that nothing stated in the said order shall be construed as an
expression of opinion on the merits of the case.
2.9. On the next day, i.e. 20th May 2008, the learned Special
Judge was informed of the decision of the High Court dated
19th May 2008 and the matter was fixed for 22nd May 2008
for the personal presence of the appellant as well as the then
D.S.P. Ram Phal.
2.10. On 22nd May 2008, the appellant filed an application for
exemption from personal presence on the ground that she was
directed by the I.G. of Police, Railways & Technical Services,
Haryana to coordinate with the Investigating teams at Jaipur, in
connection with the ‘Samjhauta Bomb Blast’ which had taken
place on 13th May 2008. The learned Special Judge observed
that the letter dated 20th May 2008 issued by the I.G. directing
her to report to Jaipur was obtained to avoid her personal
presence in the court and placed the matter on 24th May 2008
and directed her to be present and further directed her to
produce proof of her visit to Jaipur on 20th and 22nd May 2008.
2.11. On 24th May 2008, another exemption application was filed by
the appellant on the ground that she was still investigating the
[2024] 12 S.C.R. 1051
Bharti Arora v. The State of Haryana
‘Samjhauta Bomb Blast’ at Jaipur. The learned Special Judge
dismissed the exemption application and issued a Bailable
Warrant against the appellant. The next date of hearing was
set to 27th May 2008.
2.12. On 26th May 2008, a Transfer and Postings Order was passed
by the High Court of Punjab and Haryana and the learned
Special Judge who had been hearing the case of the appellant
and the original NDPS case was transferred from Kurukshetra
to Panipat as ‘Additional District and Sessions Judge’.
2.13. On 27th May 2008, another exemption application was filed
along with an adjournment application seeking adjournment for
one week on the ground that some agitation had commenced,
which was mainly targeting the railway properties and the
appellant, being the S.P., was directed to supervise and ensure
the maintenance of Law and Order personally. The learned
Special Judge, vide order dated 27th May 2008, directed the
appellant to be present on the next day along with D.S.P. Ram
Phal. On the next day, i.e. 28th May 2008, another exemption
application for a period of one week was filed by the appellant
on the ground of some agitation. The learned Special Judge
adjourned the case to the next day, i.e. 29th May 2008 and
observed that in the exemption applications, a personal hearing
is being sought, but the appellant has not appeared before the
court even once after the dismissal of the Revision petition by
the High Court vide order dated 19th May 2008.
2.14. On 29th May 2008, the learned Special Judge observed that
the appellant was not present, and neither was any exemption
application filed, and it was directed that one more chance for
personal hearing must be given to the appellant and in case
she does not appear, it would be presumed that she does
not want to avail any opportunity of hearing. The matter was
adjourned to the next day, i.e. 30th May 2008.
2.15. On 30th May 2008, the learned Special Judge observed that
neither was the appellant present nor any application for
exemption had been filed. Further, before the order could be
pronounced, an objection was raised on behalf of the appellant
that in sensitive matters, orders should not be pronounced
after the receipt of the transfer orders by the judicial officer.
1052 [2024] 12 S.C.R.
Supreme Court Reports
The learned Special Judge placed the typed and dictated order
in a sealed cover and adjourned the matter to 4th June 2008.
2.16. Aggrieved by the order dated 30th May 2008, the appellant
filed Criminal Revision No. 2194 of 2008 before the High
Court of Punjab and Haryana at Chandigarh. The learned
Single Judge of the High Court, vide the impugned final
judgment and order dated 14 th October 2010 dismissed
the Criminal Revision and upheld the order of the learned
Special Judge dated 30th May 2008. It was further directed
that the Special Court, Kurukshetra would open the sealed
cover on 27th October 2010 and pronounce the order then
and there, and carry further proceedings as required by law.
The appellant was directed to remain present before the
Special Court, Kurukshetra on the date fixed, i.e. 27th October
2010. The Director General of Police, Haryana and Home
Secretary, Haryana were directed to ensure the presence of
the aforesaid persons.
2.17. Aggrieved by the impugned final judgment and order dated
14th October 2010, the appellant has filed this Criminal Appeal.
2.18. This Court, vide order dated 26th October 2010 issued notice
and stayed the operation of the impugned final judgment and
order dated 14th October 2010.
2.19. This Court, vide order dated 16th August 2011, granted leave
in the matter.
III. SUBMISSIONS:
3. We have heard Shri A.N.S. Nadkarni, learned Senior Counsel
appearing on behalf of the appellant and Shri Lokesh Sinhal, learned
Senior Additional Advocate General (‘Sr. AAG’ for short) appearing
on behalf of the respondent-State at length.
4. Shri Nadkarni, learned Senior Counsel appearing on behalf of the
appellant submitted that, firstly the findings given by the learned
Special Judge in its judgment and order dated 22nd/24th February
2007, while convicting Ran Singh and acquitting Surjeet Singh,
Angrej Singh and Mehar Deen, wherein adverse findings have
been recorded against the appellant, are contrary to the principles
of natural justice. It is submitted that no notice was given to the
[2024] 12 S.C.R. 1053
Bharti Arora v. The State of Haryana
appellant prior to recording of the adverse findings against her and
the said findings were recorded ex-parte.
5. Shri Nadkarni submitted that, even on merits, the said findings were
totally unwarranted. He submitted that the appellant had served as
S.P., Kurukshetra only from 21st May 2004 to 18th March 2005. It
is submitted that, during that period, the appellant was neither a
part of the raiding team, search team, nor the investigating team,
that carried out the operation against Ran Singh on 6th January
2005. It is submitted that even the charge-sheet was filed against
the accused persons only after the appellant was transferred from
Kurukshetra. It is therefore submitted that no act or omission could
be attributed to the appellant covered by Sections 42, 43 and/or
44 of the NDPS Act. He submitted that, as such, on the basis of
such bald allegations by the accused persons, at the stage of final
hearing, the issuance of notice on the premise that the appellant
had committed an offence punishable under Section 58 of the NDPS
Act was itself not sustainable.
6. Shri Nadkarni further submitted that the findings of the learned
Special Judge are totally contradictory. On one hand, the learned
Special Judge came to a specific finding that there was no violation
of Sections 42, 50 and 55 of the NDPS Act; on the other hand, the
learned Special Judge has issued a notice on the premise that the
appellant and the other officers are guilty of an offence punishable
under Section 58 of the NDPS Act. It is further submitted that the
very approach of the learned Special Judge in issuing notice under
Section 58 of the NDPS Act merely two days after the judgment
and order dated 22nd/24th February 2007 and thereafter rushing the
proceedings in a hurried manner would show that the learned Special
Judge was predetermined to convict the appellant. It is submitted
that this is clear from the said order of the learned Special Judge
which was kept in a sealed cover and opened by this Court on 24th
October 2024.
7. Shri Nadkarni submitted that the learned Special Judge failed to
take into consideration that the exemptions were required to be
granted to the appellant since the appellant was required to attend
important duties pertaining to law and order. In a short span of
ten days, the learned Special Judge had adjourned the matter on
seven days which shows the hurried manner in which the learned
1054 [2024] 12 S.C.R.
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Special Judge was proceeding with the matter. It is submitted that
the very conduct of the learned Special Judge of dictating the order
after the transfer order was issued on 26th May 2008 and keeping
it in a sealed cover on 30th May 2008 for pronouncement later on,
itself shows the predetermined mind of the learned Special Judge.
8. Shri Nadkarni further submitted that the punishment for an offence
punishable under Section 58 of the NDPS Act is less than 3 years.
It is therefore submitted that, in view of Section 36-A(5) of the NDPS
Act, the proceedings against the appellant for the offence punishable
under Section 58 ought to have been carried out as a summary trial
by the learned Magistrate. It is submitted that the summary trial will
have to be conducted as a summons case and the procedure as
required under Sections 251 to 259 of the Cr.P.C. would be required
to be followed. However, the learned Special Judge has passed the
judgment contrary to the said provisions. In this respect, reliance
is sought to be placed on the judgment of this Court in the case of
Tofan Singh v. State of Tamil Nadu.7
9. Shri Nadkarni submitted that the procedure adopted by the learned
Special Judge is full of lacunae. He submitted that neither the copies
of the police report and other documents referred to in Section 207
of the Cr.P.C. were supplied to the appellant nor was the appellant
asked under Section 251 of the Cr.P.C. whether she pleads guilty
or not. He submitted that neither the prosecution witnesses were
examined nor was the appellant given an opportunity to cross-examine
the witnesses. He submitted that the appellant was not given an
opportunity to explain the circumstances appearing in evidence
against her as required under Section 313 of the Cr.P.C.
10. Shri Nadkarni submitted that the only role of the appellant was
forwarding the representation received by her to the subordinate
authorities. He submitted that, as such, she was acting in discharge
of her official duties. It is therefore submitted that the appellant’s bona
fide action was squarely protected by Section 69 of the NDPS Act
read with Section 76 of the Indian Penal Code, 1860. Shri Nadkarni
submitted that the findings against the appellant in the judgment
and order dated 22nd/24th February 2007 were rendered without
7 2020 INSC 620 : [2020] 12 SCR 583 : (2021) 4 SCC 1
[2024] 12 S.C.R. 1055
Bharti Arora v. The State of Haryana
arraying the appellant as additional accused. It is submitted that the
procedure adopted by the learned Special Judge was contrary to the
Constitution Bench judgment of this Court in the case of Sukhpal
Singh Khaira v. State of Punjab.8
11. Shri Nadkarni further submitted that the learned Special Judge could
not have taken cognizance for the offence punishable under Section
58 of the NDPS Act against the appellant in the absence of a valid
sanction under Section 197 of the Cr.P.C.
12. Shri Nadkarni further submitted that the appellant is a highly
meritorious officer, and she has received outstanding grading in her
CRs and is also a recipient of the Presidential Medal.
13. The State has also supported the stand taken by the appellant. The
State has also reiterated that the appellant was required to attend
to an urgent law and order situation on account of the bomb blasts
in Samjhauta Express and also the agitation. It further submitted
that, though there were voluminous evidence against the accused
persons Surjeet Singh, Angrej Singh and Mehar Deen, the learned
Special Judge had acquitted them. It is submitted that the State had
preferred an appeal challenging the acquittal of the said 3 accused
persons which is pending before the High Court. It is stated that
Ran Singh who was convicted has also filed an appeal challenging
his conviction before the High Court.
14. With the assistance of the parties, we have examined the material
placed on record.
IV. CONSIDERATION:
15. The only finding against the appellant in the judgment and order of
conviction/acquittal dated 22nd/24th February 2007 is thus:
“50. The powers under section 42, 43 and 44 of the Act
have been given to the police officers with regard to
seizure, search and arrest. As per provisions under section
58 of the Act, any person empowered under sections 42,
43 and 44 of the Act who vexatiously and unnecessarily
detains, searches or arrests any person or wilfully and
8 2022 INSC 1250 : [2022] 10 SCR 156 : (2023) 1 SCC 289
1056 [2024] 12 S.C.R.
Supreme Court Reports
maliciously give false information causing an arrest, shall
be liable for punishment. In the foregoing paragraphs, it has
been observed that the recovery of commercial quantity
of opium was effected from the conscious possession of
accused Ran Singh. After three days of his arrest, at the
behest of then Superintendent of Police Smt. Bharti Arora
and with the help of Ram Phal the then DSP and Ram
Kumar, investigating officer, the prosecution case was
formulated that the commercial quantity of opium was
planted by accused Surjit Singh with the help of accused
Angrej Singh and Mehardeen in the heap of dung cakes
outside the house of accused Ran Singh. The story made
up by the senior police officers has been found to be false
and concocted which makes Smt. Bharti Arora the then
Superintendent of Police, Ram Phal the then DSP and Ram
Kumar Inspector liable for prosecution under section 58
of the Act. Hence, separate notices to Smt. Bharti Arora
the then Superintendent of Police, Kurukshetra, Ram
Phal the then DSP and Ram Kumar Inspector be given
to show cause as to why proceedings under section 58
of the N.D.P.S. Act be not initiated against them. It is not
out of place to mention here that accused Surjit Singh
remained in custody w.e.f. 8.1.2005 till 29.8.2005 and
accused Angrej Singh and Mehardeen remained in custody
w.e.f. 8.1.2005 to 25.5.2005.”
16. It can thus be seen that the reasons given by the learned Special
Judge are that the present appellant and the other police officers
have though exercised their powers under Sections 42, 43 and 44
of the NDPS Act, they were not exercised in a bona fide manner.
The findings are beset with several legal infirmities pointed out
hereinbelow.
17. We find that the judgment and order dated 22 nd/24th February
2007 passed by the learned Special Judge so also the order
dictated by the learned Special Judge on 30th May 2008 and kept
it in a sealed cover to be pronounced by the successor of the
learned Special Judge are unsustainable in law for more than one
reason. Further, there has also been gross violation of principles
of natural justice.
[2024] 12 S.C.R. 1057
Bharti Arora v. The State of Haryana
a. Interpretation of the provisions of the NDPS Act and Cr.P.C.:
18. It will be relevant to refer to Section 36-A (5) of the NDPS Act, which
reads thus:
“36-A. Offences triable by Special Courts.—(1) ……….
(2) ………
(3) ……….
(4) ……..
(5) Notwithstanding anything contained in the Code
of Criminal Procedure, 1973 (2 of 1974), the offences
punishable under this Act with imprisonment for a term
of not more than three years may be tried summarily.”
19. It will also be relevant to refer to Section 58 of the NDPS Act, which
reads thus:
“58. Punishment for vexatious entry, search, seizure
or arrest.—(1) Any person empowered under Section 42
or Section 43 or Section 44 who—
(a) without reasonable ground of suspicion
enters or searches, or causes to be entered or
searched, any building, conveyance or place;
(b) vexatiously and unnecessarily seizes the
property of any person on the pretence of
seizing or searching for any narcotic drug or
psychotropic substance or other article liable
to be confiscated under this Act, or of seizing
any document or other article liable to be seized
under Section 42, Section 43 or Section 44; or
(c) vexatiously and unnecessarily detains,
searches or arrests any person,
shall be punishable with imprisonment for a term which
may extend to six months or with fine which may extend
to one thousand rupees, or with both.
(2) Any person wilfully and maliciously giving false
information and so causing an arrest or a search being
made under this Act shall be punishable with imprisonment
1058 [2024] 12 S.C.R.
Supreme Court Reports
for a term which may extend to two years or with fine or
with both.”
20. A perusal of sub-section (1) of Section 58 of the NDPS Act would
reveal that if any person empowered under Section 42 or Section
43 or Section 44, who,without reasonable ground of suspicion enters
or searches, or causes to be entered or searched, any building,
conveyance or place, or vexatiously and unnecessarily seizes the
property of any person on the pretence of seizing or searching for
any narcotic drug or psychotropic substance or other article liable to
be confiscated under the Act, or of seizing any document or other
article liable to be seized under Section 42, Section 43 or Section
44; or vexatiously and unnecessarily detains, searches or arrests
any personshall be punishable with imprisonment for a term which
may extend to six months or with fine which may extend to one
thousand rupees, or with both. Sub-section (2) thereof provides that
any person, who wilfully and maliciously gives false information and
so causes an arrest or a search being made under this Act shall be
punishable with imprisonment for a term which may extend to two
years or with fine or with both.
21. The notice which was given by the learned Special Judge to the
appellant and other police officers was for the offence punishable
under Sections 58(1) and (2) of the NDPS Act. As such, it could
be seen that the proceedings which were initiated by the learned
Special Judge against the appellant were for the offence punishable
for which the maximum sentence provided in the NDPS Act was
up to two years. Section 36-A (5) of the NDPS Act which begins
with the non-obstante clause provides that notwithstanding anything
contained in the Cr.P.C., the offences punishable under this Act
with imprisonment for a term of not more than three years may be
tried summarily. It could thus be seen that even if the proceedings
were to be initiated against the appellant for the offence punishable
under Section 58 of the NDPS Act, the appellant was required to
be tried summarily.
22. A bench of learned three Judges of this Court in the case of Tofan
Singh (supra) was considering a question as to whether officers
of departments other than the police, on whom the powers of an
officer in charge of a police station under Chapter XIV of the Cr.P.C.,
have been conferred, are police officers or not within the meaning of
[2024] 12 S.C.R. 1059
Bharti Arora v. The State of Haryana
Section 25 of the Evidence Act. This Court answered the question
that the officers who are invested with powers under Section 53 of
the NDPS Act are “police officers” within the meaning of Section 25
of the Evidence Act, as a result of which any confessional statement
made to them would be barred under the provisions of Section 25
of the Evidence Act, and cannot be taken into account in order to
convict an accused under the NDPS Act. This Court observed thus:
“145. A third anomalous situation would arise, in that
under Section 36-A(1)(a) of the NDPS Act, it is only
offences which are punishable with imprisonment for a
term of more than three years that are exclusively triable
by the Special Court. If, for example, an accused is tried
for an offence punishable under Section 26 of the NDPS
Act, he may be tried by a Magistrate and not the Special
Court. This being the case, the special procedure provided
in Section 36-A(1)(d) would not apply, the result being
that the Section 53 officer who investigates this offence,
will then deliver a police report to the Magistrate under
Section 173 CrPC. Absent any provision in the NDPS Act
truncating the powers of investigation for prevention and
detection of crimes under the NDPS Act, it is clear that an
offence which is punishable for three years and less can
be investigated by officers designated under Section 53,
leading to the filing of a police report. However, in view of
Raj Kumar Karwal [Raj Kumar Karwal v. Union of India,
(1990) 2 SCC 409 : 1990 SCC (Cri) 330] , a Section 53
officer investigating an offence under the NDPS Act can
end up only by filing a complaint under Section 36-A(1)
(d) of the NDPS Act. Shri Lekhi’s only answer to this
anomaly is that under Section 36-A(5) of the NDPS Act,
such trials will follow a summary procedure, which, in turn,
will relate to a complaint where investigation is undertaken
by a narcotics officer. First and foremost, trial procedure
is post-investigation, and has nothing to do with the
manner of investigation or cognizance, as was submitted
by Shri Lekhi himself. Secondly, even assuming that the
mode of trial has some relevance to this anomaly, Section
258 CrPC makes it clear that a summons case can be
instituted “otherwise than upon complaint”, which would
1060 [2024] 12 S.C.R.
Supreme Court Reports
obviously refer to a summons case being instituted on a
police report—see John Thomas v. K. Jagadeesan [John
Thomas v. K. Jagadeesan, (2001) 6 SCC 30 : 2001 SCC
(Cri) 974] (at para 8).”
23. It could be seen that while answering the said question, in paragraph
145, Nariman, J., while penning down the majority judgment has
observed that under Section 36-A(1)(a) of the NDPS Act, it was only
offences which were punishable with imprisonment for a term of more
than three years that were exclusively triable by the Special Court.
24. It is thus clear that the statutory scheme, according to the provisions
of Section 36-A(5) of the NDPS Act, prescribes that, for convicting
a person under Section 58 of the NDPS Act, he/she must be tried
summarily.
25. Section 260 of the Cr.P.C. provides that the power to try summarily
is with any Judicial Magistrate, any Metropolitan Magistrate or any
Magistrate of the first class specially empowered in this behalf by the
High Court. Section 262 of the Cr.P.C. provides that the procedure
specified in this Code for the trial of summons-case shall be followed
except as hereinafter mentioned. A detailed procedure has been
provided for trial of summons cases by the Magistrate under Section
251 to 259 of the Cr.P.C.
26. It is thus clear that the learned Special Judge could not have
conducted the proceedings against the present appellant for the
offence punishable under Section 58 of the NDPS Act inasmuch as
such proceedings could have been conducted only by a Magistrate.
Undisputedly, the procedure as required under Chapter XX i.e.
Sections 251 to 256 of the Cr.P.C. has also not been followed.
b. Good Faith:
27. It will be relevant to refer to Section 69 of the NDPS Act, which
reads thus:
“69. Protection of action taken in good faith.—No suit,
prosecution or other legal proceeding shall lie against the
Central Government or a State Government or any officer
of the Central Government or of the State Government
or any other person exercising any powers or discharging
any functions or performing any duties under this Act, for
[2024] 12 S.C.R. 1061
Bharti Arora v. The State of Haryana
anything in good faith done or intended to be done under
this Act or any rule or order made thereunder.”
28. It could thus be seen that Section 69 of the NDPS Act provides
immunity to the Central Government, State Government or any officer
of the Central or State Government or any other person exercising
any powers or discharging any functions or performing any duties
under this Act or any rule or order made thereunder from civil or
criminal proceedings.
29. This Court, in the case of General Officer Commanding, Rashtriya
Rifles v. Central Bureau of Investigation and Another,9 after
considering various earlier pronouncements, observed thus:
“69. A public servant is under a moral and legal obligation
to perform his duty with truth, honesty, honour, loyalty
and faith, etc. He is to perform his duty according to
the expectation of the office and the nature of the post
for the reason that he is to have a respectful obedience
to the law and authority in order to accomplish the duty
assigned to him.
70. Good faith has been defined in Section 3(22) of the
General Clauses Act, 1897 to mean a thing which is, in
fact, done honestly, whether it is done negligently or not.
Anything done with due care and attention, which is not
mala fide, is presumed to have been done in good faith.
There should not be personal ill will or malice, no intention
to malign and scandalise. Good faith and public good are
though the question of fact, are required to be proved
by adducing evidence. (Vide Madhavrao Narayanrao
Patwardhan v. Ram Krishna Govind Bhanu [AIR 1958 SC
767], Madhav Rao Jivaji Rao Scindia v. Union of India
[(1971) 1 SCC 85 : AIR 1971 SC 530], Sewakram Sobhani
v. R.K. Karanjiya [(1981) 3 SCC 208 : 1981 SCC (Cri)
698 : AIR 1981 SC 1514], Vijay Kumar Rampal v. Diwan
Devi [AIR 1985 SC 1669], Deena v. Bharat Singh [(2002)
6 SCC 336] and Goondla Venkateswarlu v. State of A.P.
[(2008) 9 SCC 613 : (2008) 3 SCC (Cri) 829] )
9 2012 INSC 196 : [2012] 5 SCR 599 (2012) 6 SCC 228
1062 [2024] 12 S.C.R.
Supreme Court Reports
71. In Brijendra Singh v. State of U.P. [(1981) 1 SCC 597 :
AIR 1981 SC 636] this Court while dealing with the issue
held : (SCC p. 602, para 18)
“18. … The expression has several shades
of meaning. In the popular sense, the phrase
‘in good faith’ simply means ‘honestly, without
fraud, collusion, or deceit; really, actually,
without pretence and without intent to assist or
act in furtherance of a fraudulent or otherwise
unlawful scheme’. (See Words and Phrases,
Permanent Edn., Vol. 18-A, p. 91.) Although
the meaning of ‘good faith’ may vary in the
context of different statutes, subjects and
situations, honest intent free from taint of fraud
or fraudulent design, is a constant element of its
connotation. Even so, the quality and quantity
of the honesty requisite for constituting ‘good
faith’ is conditioned by the context and object
of the statute in which this term is employed.
It is a cardinal canon of construction that an
expression which has no uniform, precisely
fixed meaning, takes its colour, light and content
from the context.”
72. For the aforesaid qualities attached to a duty one
can attempt to decipher it from a private act which can
be secret or mysterious. An authorised act or duty is
official and is in connection with authority. Thus, it cannot
afford to be something hidden or non-transparent unless
such a duty is protected under some law like the Official
Secrets Act.
73. Performance of duty acting in good faith either done
or purported to be done in the exercise of the powers
conferred under the relevant provisions can be protected
under the immunity clause or not, is the issue raised. The
first point that has to be kept in mind is that such an issue
raised would be dependent on the facts of each case and
cannot be a subject-matter of any hypothesis, the reason
being, such cases relate to initiation of criminal prosecution
[2024] 12 S.C.R. 1063
Bharti Arora v. The State of Haryana
against a public official who has done or has purported to
do something in exercise of the powers conferred under a
statutory provision. The facts of each case are, therefore,
necessary to constitute the ingredients of an official act.
The act has to be official and not private as it has to
be distinguished from the manner in which it has been
administered or performed.
74. Then comes the issue of such a duty being performed
in good faith. “Good faith” means that which is founded on
genuine belief and commands a loyal performance. The
act which proceeds on reliable authority and accepted
as truthful is said to be in good faith. It is the opposite of
the intention to deceive. A duty performed in good faith is
to fulfil a trust reposed in an official and which bears an
allegiance to the superior authority. Such a duty should be
honest in intention, and sincere in professional execution.
It is on the basis of such an assessment that an act can
be presumed to be in good faith for which while judging
a case the entire material on record has to be assessed.
75. The allegations which are generally made are, that the
act was not traceable to any lawful discharge of duty. That
by itself would not be sufficient to conclude that the duty
was performed in bad faith. It is for this reason that the
immunity clause is contained in the statutory provisions
conferring powers on the law enforcing authorities. This is
to protect them on the presumption that acts performed in
good faith are free from malice or ill will. The immunity is
a kind of freedom conferred on the authority in the form
of an exemption while performing or discharging official
duties and responsibilities. The act or the duty so performed
are such for which an official stands excused by reason
of his office or post.
76. It is for this reason that the assessment of a complaint
or the facts necessary to grant sanction against immunity
that the chain of events has to be looked into to find out
as to whether the act is dutiful and in good faith and not
maliciously motivated. It is the intention to act which is
important.”
1064 [2024] 12 S.C.R.
Supreme Court Reports
30. It could be seen that this Court observed that anything done with
due care and attention, which is not mala fide, is presumed to have
been done in good faith. It has been observed that there should not
be personal ill will or malice, no intention to malign and scandalise.
It has been observed that good faith and public good are though a
question of fact, they are required to be proved by adducing evidence.
This Court held that as to whether the performance of duty acting
in good faith either done or purported to be done in the exercise of
the powers conferred under the relevant provisions can be protected
under the immunity clause or not, would depend upon the facts of
each case and cannot be a subject matter of any hypothesis. It has
been held that for availing such immunity, the act has to be official
and not private.
31. This Court further observed that ‘good faith’ means, that which is
founded on genuine belief and commands a loyal performance. It
has been held that the provisions of immunity clauses are made to
protect the officers on the presumption that the acts performed in
good faith were free from malice or ill will. This Court held that the
act which may appear to be wrong or a decision which may appear
to be incorrect was not necessarily a malicious act or decision. It
has been held that the presumption of good faith therefore could
be dislodged only by cogent and clinching material and so long as
such a conclusion was not drawn, a duty in good faith should be
presumed to have been done or purported to have been done in
exercise of the powers conferred under the statute. It has been held
that there has to be material to attribute or impute an unreasonable
motive behind an act to take away the immunity clause.
c. Violation of Principles of Natural Justice:
32. A perusal of the judgment and order dated 22nd/24th February 2007
would reveal that the allegations against the present appellant were
raised for the first time during the arguments on behalf of the three
accused persons who have been acquitted by the learned Special
Judge. It will be relevant to refer to paragraph 49 of the said judgment
and order dated 22nd/24th February 2007, which reads thus:
“49. During the course of arguments, it was argued by
learned defence counsel on behalf of accused Surjit Singh,
Angrej Singh and Mehardeen that since the senior police
[2024] 12 S.C.R. 1065
Bharti Arora v. The State of Haryana
officers had shifted the recovery of opium from the name of
accused Ran Singh to the names of plantation by accused
Surjit Singh, Angrej Singh and Mehardeen, action under
section 58 of the N.D.P.S. Act be taken against the senior
police officers who are responsible for the same……”
33. After recording thus, the learned Special Judge has given its findings
in paragraph 50 which are reproduced hereinabove. It is thus clear
that the learned Special Judge recorded the findings against the
appellant as well as the other police officers without even issuing
notice to them.
34. The facts in the present case are somewhat similar to the facts which
fell for consideration before this Court in the case of State of West
Bengal and Others v. Babu Chakraborthy.10 In the said case, the
accused persons were convicted for an offence punishable under
the NDPS Act. In the appeal preferred by them, while allowing the
appeal, the High Court made several strictures and observations
against two officers of the West Bengal Police in an IPS Cadre. In
the said case also, the allegations against the said officers were with
regard to violation of provisions of Section 42 of the NDPS Act. This
Court, after considering various earlier judgments, observed thus:
“30. Replying to the arguments of Mr Viswanathan, Mr
Tapash Ray, learned Senior Counsel submitted that the
operating portion of the impugned judgment clearly brings
out the perversity in the judgment. According to him, the
strictures that have been passed against the appellants by
the Division Bench of the High Court are wholly unjustified
and are liable to be expunged. He is right in his submission.
In our view, the High Court was not justified and correct
in passing observations/strictures against Appellants 2
and 3 without affording an opportunity of being heard,
and it is in violation of a catena of pronouncements of
this Court that harsh or disparaging remarks are not
to be made against the persons and authorities whose
conduct comes into consideration before courts of law
unless it is really necessary for the decision of the case.
10 2004 INSC 492 : [2004] Supp. 4 SCR 17 : (2004) 12 SCC 201
1066 [2024] 12 S.C.R.
Supreme Court Reports
Likewise, the directions issued by the High Court to the
trial court to lodge a complaint to the Magistrate having
jurisdiction for prosecuting Appellants 2 and 3 for having
committed an offence under Section 58 of the Act read
with Sections 166 and 167 of the Penal Code, 1860 is not
warranted. The observations made by the High Court are
liable to be expunged and accordingly, we expunge the
same including the direction to lodge a complaint against
Appellants 2 and 3.
31. As rightly pointed out by Mr Tapash Ray, the
observations of the High Court in the impugned judgment
passing strictures against the appellants have been made
while against the record of the case and penalise the two
police officers who were discharging their official duties
as per the law. The action taken by Appellants 2 and 3
has been taken in the case of discharging of their official
duties. While discharging their duties, the official would
have violated certain provisions. That does not, in our
opinion, enable the court to pass strictures against the
officials and order compensation. There is no evidence
or circumstance to show that there were any mala fides
on the part of these officers.”
35. The learned Special Judge, without even giving notice to her, only on
the basis of the arguments advanced at the stage of final hearing of
the matter, made adverse observations against her by almost finding
her guilty of the offence punishable under Section 58 of the NDPS Act.
Moreover while doing so, neither any notice nor was any opportunity
of being heard given to her. After the said judgment and order of
conviction/acquittal was recorded by the learned Special Judge on
22nd/24th February 2007, within 2 days, a notice under Section 58 of
the NDPS Act was issued to the appellant on 26th February 2007.
The appellant, in response to the said notice, appeared before the
learned Special Judge on 15th March 2007 and on 12th April 2007,
she also filed a reply. In the meantime, the appellant approached
the High Court challenging the said show-cause notice dated 26th
February 2007. The High Court, vide order dated 19th May 2008,
refused to entertain the revision with the observation that the order
passed by the learned Special Judge should not be construed as
an expression of opinion on the merits of the matter. Immediately
[2024] 12 S.C.R. 1067
Bharti Arora v. The State of Haryana
on the very next day of the passing of the said order of the High
Court, the learned Special Judge proceeded to hear the matter at
a lightning speed. Within 10 days, from 20th May 2008 to 30th May
2008, the learned Special Judge directed the matter to be heard on
7 dates. Though the transfer order was issued on 26th May 2008 and
the learned Special Judge was directed to immediately relinquish
the post/charge, the learned Special Judge again kept the matter
on 27th May 2008, 28th May 2008, 29th May 2008 and finally on 30th
May 2008. During the said period, the appellant was directed to
supervise and ensure the maintenance of law and order inasmuch
as the situation had deteriorated on account of some agitation. The
same was also brought to the notice of the learned Special Judge.
However, on 30th May 2008, the learned Special Judge proceeded
to dictate and type the order and kept the same in a sealed cover.
It is thus clear that the learned Special Judge had given a complete
go-bye to all the principles of natural justice.
36. It is a well-settled principle of law that justice should not only be done
but should be seen to be done. In this respect, it will be relevant to
refer to the following passage from Jackson’s Natural Justice (1980
Edn.):
“The distinction between justice being done and being
seen to be done has been emphasised in many cases. . . .
The requirement that justice should be seen to be done
may be regarded as a general principle which in some
cases can be satisfied only by the observance of the
rules of natural justice or as itself forming one of those
rules. Both explanations of the significance of the maxim
are found in Lord Widgery, C.J.’s judgment in R. v. Home
Secretary [(1977) 1 WLR 766, 772] , ex. p. Hosenball,
where after saying that “the principles of natural justice are
those fundamental rules, the breach of which will prevent
justice from being seen to be done” he went on to describe
the maxim as “one of the rules generally accepted in the
bundle of the rules making up natural justice”.
It is the recognition of the importance of the requirement
that justice is seen to be done that justifies the giving
of a remedy to a litigant even when it may be claimed
that a decision alleged to be vitiated by a breach of
1068 [2024] 12 S.C.R.
Supreme Court Reports
natural justice would still have been reached had a fair
hearing been given by an impartial tribunal. The maxim
is applicable precisely when the court is concerned not
with a case of actual injustice but with the appearance of
injustice or possible injustice. In Altco Ltd. v. Sutherland
[(1971) 2 Lloyd›s Rep 515] Donaldson, J., said that the
court, in deciding whether to interfere where an arbitrator
had not given a party a full hearing was not concerned
with whether a further hearing would produce a different
or the same result. It was important that the parties
should not only be given justice, but, as reasonable
men, know that they had had justice or “to use the time
hallowed phrase” that justice should not only be done
but be seen to be done. In R. v. Thames Magistrates’
Court, ex. p. Polemis [(1974) 1 WLR 1371] , the applicant
obtained an order of certiorari to quash his conviction by
a stipendiary magistrate on the ground that he had not
had sufficient time to prepare his defence. The Divisional
Court rejected the argument that, in its discretion, it ought
to refuse relief because the applicant had no defence
to the charge.
It is again absolutely basic to our system that justice must
not only be done but must manifestly be seen to be done.
If justice was so clearly not seen to be done, as on the
afternoon in question here, it seems to me that it is no
answer to the applicant to say: ‘Well, even if the case had
been properly conducted, the result would have been the
same. That is mixing up doing justice with seeing that
justice is done (per Lord Widgery, C.J. at p. 1375).”
37. This Court, in the case of P.D. Dinakaran (I) v. Judges Inquiry
Committee and Others11 has also observed thus:
41. In this case, we are concerned with the application of
first of the two principles of natural justice recognised by
the traditional English Law i.e. nemo debet esse judex in
propria causa. This principle consists of the rule against
bias or interest and is based on three maxims: (i) No man
11 2011 INSC 452 : [2011] 10 SCR 1064 : (2011) 8 SCC 380
[2024] 12 S.C.R. 1069
Bharti Arora v. The State of Haryana
shall be a judge in his own cause; (ii) Justice should not
only be done, but manifestly and undoubtedly be seen to
be done; and (iii) Judges, like Caesar’s wife should be
above suspicion. The first requirement of natural justice
is that the Judge should be impartial and neutral and
must be free from bias. He is supposed to be indifferent
to the parties to the controversy. He cannot act as Judge
of a cause in which he himself has some interest either
pecuniary or otherwise as it affords the strongest proof
against neutrality. He must be in a position to act judicially
and to decide the matter objectively. A Judge must be of
sterner stuff. His mental equipoise must always remain firm
and undetected. He should not allow his personal prejudice
to go into the decision making. The object is not merely
that the scales be held even; it is also that they may not
appear to be inclined. If the Judge is subject to bias in
favour of or against either party to the dispute or is in a
position that a bias can be assumed, he is disqualified to
act as a Judge, and the proceedings will be vitiated. This
rule applies to the judicial and administrative authorities
required to act judicially or quasi-judicially.
42. A pecuniary (bias) interest, however small it may be,
disqualifies a person from acting as a Judge. Other types
of bias, however, do not stand on the same footing and
the courts have, from time to time, evolved different rules
for deciding whether personal or official bias or bias as
to subject-matter or judicial obstinacy would vitiate the
ultimate action/order/decision.
43. In R. v. Rand [(1866) LR 1 QB 230] the Queen’s Bench
was called upon to consider whether the factum of two
Justices being trustees of a hospital and a friendly society
respectively, each of which had lent money to Bradford
Corporation on bonds charging the corporate fund were
disqualified from participating in the proceedings which
resulted in issue of certificate in favour of the corporation
to take water of certain streams without permission of the
mill owners. While answering the question in negative,
Blackburn, J. evolved the following rule:
1070 [2024] 12 S.C.R.
Supreme Court Reports
“… There is no doubt that any direct pecuniary interest,
however small, in the subject of inquiry, does disqualify a
person from acting as a judge in the matter; and if by any
possibility these gentlemen, though mere trustees, could
have been liable to costs, or to other pecuniary loss or
gain, in consequence of their being so, we should think the
question different from what it is: for that might be held an
interest. But the only way in which the facts could affect
their impartiality, would be that they might have a tendency
to favour those for whom they were trustees; and that is an
objection not in the nature of interest, but of a challenge
to the favour. Wherever there is a real likelihood that the
judge would, from kindred or any other cause, have a bias
in favour of one of the parties, it would be very wrong in
him to act; and we are not to be understood to say, that
where there is a real bias of this sort this Court would
not interfere; but in the present case there is no ground
for doubting that the Justices acted perfectly bona fide;
and the only question is, whether in strict law, under such
circumstances, the certificate of such Justices is void, as
it would be if they had a pecuniary interest; and we think
that R. v. Dean and Chapter of Rochester [(1851) 17 QB 1]
is an authority, that circumstances, from which a suspicion
of favour may arise, do not produce the same effect as a
pecuniary interest.””
CONCLUSION:
38. As already stated hereinabove, the matter went to the High Court
in revision. The High Court, by the impugned judgment and order
refused to interfere with the same and upheld the order dated 30th
May 2008. The said impugned judgment and order was stayed by
this Court vide order dated 26th October 2010.
39. When we opened the sealed cover on 24th October 2024 and perused
the order dated 30th May 2008 passed by the learned Special Judge,
it became clear to us that the learned Special Judge had acted in a
predetermined manner. Though the judgment and order of conviction/
acquittal dated 22nd/24th February 2007 was challenged by both the
State and Ran Singh in an appeal and which appeal was admitted,
the learned Special Judge has observed that the judgment and
[2024] 12 S.C.R. 1071
Bharti Arora v. The State of Haryana
order of conviction/acquittal dated 22nd/24th February 2007 has not
been challenged and has become final. It therefore reflects total
non-application of mind. We therefore find that the order dated 30th
May 2008 passed by the learned Special Judge is also liable to be
set aside on the said ground.
40. In the result, we pass the following order:
(i) The appeal is allowed;
(ii) The judgment and order dated 14th October 2010 passed by the
High Court in Criminal Revision No. 2194 of 2008 is quashed
and set aside;
(iii) The observations made by the learned Special Judge in the
judgment and order of conviction/acquittal dated 22 nd/24th
February 2007 in paragraphs 49 and 50 stand quashed and
set aside; and
(iv) The notice issued by the learned Special Judge dated 26th
February 2007 to the appellant under Section 58 of the NDPS
Act and all subsequent proceedings including the order dictated
and typed on 30th May 2008 by the learned Special Judge shall
stand quashed and set aside.
41. Pending application(s), if any, shall stand disposed of.
Result of the case: Appeal allowed.
†
Headnotes prepared by: Ankit Gyan
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