MANU/SC/0489/2004

Equivalent Citation: 2004(3)AC R2373(SC ), AIR2004SC 3467, 2004(2)ALD(C ri)1, 2004C riLJ2855, 2004GLH(3)574, (2004)3GLR2058,
2004(3)RC R(C riminal)347, RLW2004(3)SC 392, 2004(5)SC ALE397, (2004)5SC C 353, [2004]Supp(3)SC R571, 2004(2)UC 963, 2004(2)UJ1491

IN THE SUPREME COURT OF INDIA

Crl. Misc. Petition Nos. 4827-4833/2004 in Criminal Appeal Nos. 446-449 of 2004
and Criminal Appeal Nos. 450-452 of 2004 With Crl. Misc. Petition Nos.....of 2004 in
Criminal Appeal Nos. 446-449 of 2004
Decided On: 07.05.2004
Appellants:Zahira Habibullah Sheikh and Ors.
Vs.
Respondent:State of Gujarat and Ors.
Hon'ble Judges/Coram:
Doraiswamy Raju and Dr. Arijit Pasayat, JJ.
Counsels:
Mukul Rohatgi, Additional Soliciter General, K.T.S. Tulsi and Sushil Kumar, Sr. Advs.,
Aparna Bhat, P. Ramesh Kumar, Priya Kiran, Archana Palkar Khopde, Hemantika Wahi,
Nikhil Goel, Kailash Chand and Sanjay Jain, Advs. for the appearing parties
Case Note:
Criminal - Criminal Procedure Code (CrPC), 1973 - Sections 311, 391 and
406 - Constitution of India - Articles 32, 136, 137 and 142 -Direction for
fresh trial outside State of Gujarat in best bakery case - Application filed by
State of Gujarat and one of accused 'T' on grounds that fresh trial outside
state of Gujarat was unwarranted, per incuriam being not permissible in
law, and in violation of principles in law, and in violation of principles of
natural justice - Contention that direction for fresh trial was invalid as it
could only be given on a petition under Section 406, Cr.p.c - Validity -
Section 406 relates to a case where either trial or appeal is pending before
a trial court or High Court - As the appeal against judgment of High Court
was being decided and entire matter was in hands of Court and unless
relegated back to very Court, for which there was no compulsion to send it
automatically, power of Court to send it to an appropriate Court to ensure
complete justice between parties and avert miscarriage of justice could not
be doubted or questioned - Hence question of filing petition for transfer in
terms of Section 406 did not arise - Ratio of A.R. Antilary's case held
inapplicable - Plea that there was no specific prayer for transfer outside
state held to be totally false and misleading - If the basis of grievance had
been sufficiently disclosed openly and the relief sought is among others
specified as incidental or ancillary to main relief and the Court had the
power to grant it, the fact that there was no formal or specific application
which if at all may be relevant for purposes of determining the Court fee to
be paid only, does not in any way undermine the powers of the Court to
accord relief, so long as the request in this regard had been indisputably
made and was also responded to by the parties before Court - Held that
since petition in essence & substance seeking for a review under guise of
making an application for direction & modification and since State's
sympathy more with accused than victim, petition was liable to be
dismissed

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 Criminal - Criminal Procedure Code (CrPC), 1973 - Sections 311, 391 and
406 - Constitution of India - Articles 32, 136, 137 and 142 -Direction for
fresh trial outside State of Gujarat in best bakery case - Application filed by
State of Gujarat and one of accused 'T' on grounds that fresh trial outside
state of Gujarat was unwarranted, per incuriam being not permissible in
law, and in violation of principles in law, and in violation of principles of
natural justice - Contention of accused 'T' that while dealing with appeal
against acquittal, Court was required to consider evidence which weighed
with Court's directing acquittal - Validity - Dismissing application held that
when primary consideration was justifiability of rejecting applications in
terms of the Sections 311 and 391 of the Code, question of considering the
evidence on record did not arise - As appeals were allowed for reasons that
investigation was vitiated, tainted evidence was tendered and distorted
trial was held, it was suffice to set aside judgment and question of
considering evidence on record except to extent necessary for deciding
appeals did not arise - When the matter is taken up for trial afresh the
worth of the evidence has to be considered by the Court concerned on its
own merits and in accordance with law to find out the real truth - Hence
held that plea of 'T' regarding need for consideration of the evidence on
record was really of no consequence and was liable to be dismissed
JUDGMENT
Arijit Pasayat, J.
1. These two applications "for directions and modification of the judgment and order
dated 12.4.2004 in Crl. Appeal Nos. 446-449 of 2004 and Crl. Appeal Nos. 450-452
of 2004 (Zahira Habibulla H. Sheikh and Anr. v. State of Gujarat and Ors. and
connected cases)" MANU/SC/0322/2004 : 2004CriLJ2050 have been filed by the State
of Gujarat and one of the accused by name Tulsibhai Bhikhabhai Tadvi who faced
trial in the case. It would be appropriate to first deal with application filed by the
State of Gujarat.
2 . The reasons for making this application primarily are that the direction for fresh
trial outside the State of Gujarat is unwarranted, per incuriam being not permissible
in law, in violation of principles of natural justice, without consideration of real
factual scenario, without specific prayer in that regard and reflect adversely on the
credibility of the entire judiciary and administration of the State.
3 . Mr. Mukul Rohatgi, learned senior counsel appearing for the applicant - State
submitted that the direction given for transfer outside the State of Gujarat is not in
accordance with law. According to him, such a direction could only have been given
on a petition filed under Section 406 of the Code of Criminal Procedure, 1973 (in
short the 'Code') and not otherwise. Strong reliance is placed on a decision of this
Court in A.R. Antulay v. R.S. Nayak and Anr. MANU/SC/0002/1988 : 1988CriL J1661 .
Emphasis is laid on the observations at pages 729 and 730 paragraphs 204 and 206
respectively. It was submitted that even by exercise of power under Article 142 of the
Constitution of India, 1950 (in short the 'Constitution') also such a direction could
not have been given. Reference in this context was made to Supreme Court Bar
Association v. Union of India and Anr. MANU/SC/0291/1998 : [1998]2SCR795 .
There is no power according to the applicant-State for suo motu directing such a
course to be adopted.
4. The petition is in essence and substance seeking for a review under the guise of
making an application for direction and modification apparently being fully aware of

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 the normal procedure that such applications for review are not, unless Court directs,
listed for open hearing in court, at the initial stage at least, before ordering notice to
the other side and could be summarily rejected, if found to be of no prima facie
merit. The move adopted itself is unjustified, and could not be countenanced also
either by way of review or in the form the present application as well. The nature of
relief sought, and the reasons assigned are such that even under the pretext of filing
a review such an exercise cannot be undertaken, virtually for re-hearing and
alteration of the judgment because it is not to the liking of the party, when there is
no apparent error on record whatsoever to call for even a review. The said move is
clearly misconceived and nothing but sheer abuse of process, which of late is found
to be on the, increase, more for selfish reasons than to further or strengthen the
cause of justice. The device thus adopted, being otherwise an impermissible move by
mere change in nomenclature of the applications does not change the basic nature of
the petition. Wishful thinking virtually based on surmises too, at any rate is no
justification to adopt such undesirable practices. If at all it should be for weighty and
substantial reasons and not to exhibit the might or weight or even the affluence of
the party concerned or those who represent such parties when they happen to be
public authorities and institutions.
5 . It is to be noted that a review application can be filed under Article 137 of the
Constitution read with Order XL of the Supreme Court Rules, 1966 (in short the
Rules). Rule 3 of Order XL is significant. It reads as follows:-
"Rule 3 - Unless otherwise ordered by the Court an application for review
shall be disposed of by circulation without any oral arguments, but the
petitioner may supplement his petition by additional written arguments. The
Court may either dismiss the petition or direct notice to the opposite party.
An application for review shall as far as practicable be circulated to the same
Judge or Bench of Judges that delivered the judgment or order sought to be
reviewed."
6. As noted by a Constitution Bench of this Court in P.N. Eswara Iyer and Ors. v.
Registrar, Supreme Court of India : [1980]2SCR889 , Suthendraraja alias Suthenthira
Raja alias Santhan and Ors. v. State, through DSP/CBI, Chennai MANU/SC/0640/1999
: 1999CriL J4587 , Ramdeo Chauhan alias Raj Nath v. State of Assam
MANU/SC/0297/2001 : 2001CriL J2902 , andDevender Pal Singh v. State, NCT of
Delhi and Anr. MANU/SC/1156/2002 : 2003CriL J918 , notwithstanding the wider set
of grounds for review in civil proceedings, it is limited to 'errors apparent on the face
of the record' in criminal proceedings. Such applications are not to be filed for the
pleasure of the parties or even as a device for ventilating remorselessness, but ought
to be resorted to with great sense of responsibility as well.
7 . I n Delhi Administration v. Gurdip Singh Uban and Ors. MANU/SC/0515/2000 :
(2000)7SCC296 it was held that by describing an application one for "clarification" or
"modification" though it is really one of review a party cannot be permitted to
circumvent or bypass the circulation procedure and indirectly obtain a hearing in the
open Court. What cannot be done directly cannot be permitted to be done indirectly.
The court should not permit hearing of such an application for "clarification",
"modification" or "recall" if the application is in substance a clever move for review.
8. In that background, we could have straightaway and summarily too dismissed the
application with exemplary costs for the blatant abuse of the process of law as done
by the applicant - State. But we feel it necessary to highlight the magnitude of
deceitfulness adopted to mislead and the patent falsity of the claims made as also the
ulterior object behind the petition.

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 9. Firstly, the plea that there was no "specific prayer" for transfer outside the State is
totally false and misleading. Every prayer need not always be by a separate
application, unless such prayer is the only relief sought or that the proceedings filed
had no other claim, by way of relief. If the basis of grievance has been sufficiently
disclosed openly and the relief sought is among others specified as incidental or
ancillary to main relief and the Court had the power to grant it, the fact that there is
no formal or specific application which if at all may be relevant for purposes of
determining the Court fee to be paid only, does not in any way undermine the powers
of the Court to accord relief, so long as the request in this regard has been
indisputably made and was also responded to by the parties before Court. In fact at
pages 123 onwards of the paper book in Crl. Appeal Nos. 446-449 of 2004, several
grounds to justify the re-trial outside Gujarat have been indicated. The submissions
made in this regard are found recorded in the judgment itself and to claim to the
contrary is sheer travesty of truth, mean as well as meaningless. Secondly, the plea
that issue of transfer was neither raised nor argued by all parties is of no
consequence. It is not necessary that all parties should raise or argue it and no one
was restrained from arguing it. So far as the question of argument is concerned, it is
really shocking that false statement has been made that the point was "not permitted
to be argued" (at page 5, para 'B') by a person whose presence and credibility to
make such statement itself has not been substantiated. In the said paragraph it has
been earlier stated that prayer for transfer outside the State was "opposed by the
State". If the former plea does not amount to false statement, probably nothing
would. The averment that the point was "not permitted to be argued", when on the
same breath it is stated that the prayer was "opposed" really shows the extent of
falsehood to which the applicant-State has gone and demonstrate the deterioration
and falling standards in preparation and filing of papers in Court. Though we could
have proceeded against the person on more than one counts, we only pity him for
offering himself to be a scapegoat apparently for reasons best known to him, which
at any rate could not be genuine or ethical whatsoever. The stand that there was no
opportunity granted to the State is further falsified in view of what is stated in para
25 of the judgment (page 388 of SCALE). Even that apart opportunity before Courts
are to be sought and availed of and there is no need to invite them to do so and
grievance, if any, could be made in this regard only when sought for but rejected by
the Court.
10. The decision in A.R. Antulay's case (supra) has really no application to the facts
of the present case. Section 406 of the Code relates to a case where either the trial or
appeal is pending before a trial Court or the High Court. In the case at hand the
appeal against judgment of the High Court was being decided and the entire matter
was in the hands of this Court and unless relegated back to the very Court, for which
there is no compulsion to send it automatically, the power of this Court to send it to
an appropriate Court to ensure complete justice between the parties and avert
miscarriage of justice, cannot be doubted or questioned. therefore, the question of
filing a petition for transfer in terms of Section 406 of the Code did not arise. The
decision in A.R. Antulay's case (supra) was not rendered in the context of the
competency, jurisdictions or authority of this Court dealing with a substantial appeal
against the judgments of the Courts below in exercise of its plenary jurisdiction,
which have been construed to be capable of being exercised in spite of limitations, if
any, under special provisions contained in the Constitution or other laws in order to
do effective, real and substantial justice, co-extensive and commensurate with the
needs of justice in a given case meeting any exigency. Orders of Courts under Article
136 of the Constitution have been held to be unassailable and cannot be said to be
void. Whereas, Article 142, though very wide is viewed to be limited to the short
compass of the actual dispute before the Court and not to what might necessarily and
reasonably be connected with or related to such matter. In A.R. Antulay's case

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 (supra) what was before the Court was an appeal from an order made in a Revision
before the High Court which itself was against an order of the Special Judge
constituted under the Criminal Law Amendment Act, 1952 rejecting the objections
taken to the jurisdiction of the Special Judge to take cognizance of the complaint
filed as a private complaint. It is in this context only Article 142 was not of assistance
to that case, particularly in the teeth of the special provisions constituting a Special
Court of particular nature and speciality de hors the other fact that the Court on its
own without the seeking of any one of the parties directed transfer. The observations
contained therein cannot be quoted or drawn out of context and consequently the
decision in A.R. Antulay's case (supra) has no relevance or application to the present
case and the reference to it is wholly inappropriate. Supreme Court Bar Association's
case (supra) related to the scope of power under Article 142 of the Constitution and
pertained to the authority of this Court to punish an advocate for professional
misconduct and not merely to punish him for contempt in respect of which only the
main matter itself was before this Court. The powers under Article 142 though
considered to be of very wide amplitude are complementary, and supplementary in
nature available no doubt to prevent injustice and to do complete justice between
parties in the pending litigation. The ratio in that case has no relevance to the
present case and it would only justify the course adopted to prevent injustice and do
complete justice between parties, as an inevitable consequence of the decision taken
in the main appeal itself. The direction given in the present case for transfer though
keeping in view normal principles governing claims for transfer was really in exercise
of powers as an Appellate Court with plenary and unlimited powers to do justice
while dealing with an appeal under Article 136 of the Constitution and as an
inevitable consequence of the appeals being allowed the reasons for which, would
equally justify on their own the need for transfer outside the State as well. It is in
essence an adjunctive power. As noted in Union Carbide Corporation and Ors. v.
Union of India and Ors. MANU/SC/0058/1992 : AIR1992SC248 the purposed
constitutional plenitude of the powers of the apex Court to ensure due and proper
administration of justice is intended to be co-extensive in each case with the needs of
justice of a given case and to meeting any exigency. Very wide powers have been
conferred on this Court for due and proper administration of Justice. This Court
retains an inherent power and jurisdiction for dealing with any extra ordinary
situation in the larger interests of administration of justice and for preventing
manifest injustice being done. The power is required to be exercised only in
exceptional circumstances for furthering the ends of justice. therefore, the ratio in
A.R. Antulay's case (supra) in no way makes our judgment fragile. On the contrary,
as noted above, the ratio in that decision has no application. Additionally, it may be
noted that in A.R. Antulay's case (supra) the controversy related to transfer from the
special Court to the High Court, a Court which was not the designated or constituted
one under the special enactment. When the direction given in the judgment is for a
re-trial by a Court of Session the logic applied in A.R. Antulay's case (supra) equally
has no application.
11. It has to be noted that in A.R. Antulay's case (supra) it was noted by this Court
that the question of transfer from one court to another was not in issue. As
highlighted above, contrary to what has been pleaded by applicant-State there was
specific issue relating to transfer of the case outside the State of Gujarat and
arguments were advanced.
12. Another red herring which has been tried to be drawn is regarding pendency of
writ petition/SLP involving prayer for transfer. The SLP appears to have been filed
before delivery of judgment by the High Court and even before the appeals were
heard by the High Court. After delivery of the judgment which was the subject matter
of challenge in Criminal Appeals, the plea of transfer stated to have been made in

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 some other SLPs (one of which was subsequently converted as a writ petition under
Article 32 of the Constitution) is really of no consequence. The Writ Petition (Crl.)
109 of 2004 is stated to have been filed on 31st July, 2003 and SLF (Crl.) 3770 of
2003 in August, 2003. The appeal before the Gujarat High Court by the State was
filed on 7.8.2003, amended twice as noted in the judgment itself. SLP (Crl.) 3770 of
2003 was filed against the judgment of the trial Court. SLP filed by NHRC was treated
as one under Article 32 of the Constitution. This Court as the Appellate Court dealing
with the judgments of the Trial Court and the Appellate Court, exercising plenary
powers under Article 136 of the Constitution, while directing re-trial has ample
jurisdiction to fix the place or the Court which should undertake such exercise,
keeping in view the needs of justice in a given case with the object of ensuring real,
substantial due and proper justice, and that too as an inevitable and necessary
corollary of the decision to set aside the judgments of the Courts below. When the
appeals were directed to be listed for hearing by constituting this Bench as specially
designated by the Hon'ble CJI in exercise of his prerogative, and the proceedings
before the other Bench presided over by the Hon'ble CJI was being adjourned in the
presence of parties/counsel appearing before us as well awaiting the result of the
appeals directed to be posted before this Bench, it is beyond comprehension and not
only unethical but impermissible for anyone to expect that this Bench could not or
ought not to have disposed of the appeals, as they deserve and the manner in which
interests of justice would require. When the appeals have been directed to be posted
before this Bench to hear the appeals, this Bench as the appellate Court exercising
powers under Article 136 of the Constitution is entitled to deal with as warranted,
necessitated and as they deserved in law, and it is pernicious for anyone to think or
expect, as to how the Court should dispose it of, as some would wish of desire,
partially or in a perfunctory manner.
13. So the plea that petitions relating to change of place of trial are pending before
this Court deserves to be only noted and rejected.
14. Another plea which reflects ignorance about the judicial system is the plea that
observations made without hearing has demoralising effect on the highest court of
the State and Courts subordinate to it. This submission shows lack of awareness and
want of understanding, apparently deliberately feigned, about functioning of
Appellate Courts. When an appeal is heard and Appellate Court finds non-application
of mind or erroneous application of law or perversity in appreciation of evidence it is
not required to hear the concerned member(s) of judiciary whose orders are
questioned. It is only when adverse comments are made personally attributing
malafides or personal bias or involvement in the case, de hors the role as a judicial
functionary and that too unrelated to the subject matter of lis, in a given case, the
position may be different. Observations made while considering the legality,
propriety, reasonableness, rationality or in a given case perversity in the manner of
exercise of powers and passing orders by the Courts below under challenge in
relation to a particular case do not reflect adversely on the competence of the entire
network of Courts. We fail to understand how the observations made in any way can
have demoralising effect on the highest Court of the State, or creating negative
impact upon the State Judiciary in discharging its functions. A judgment, the
observations and criticisms as to the manner of disposal have to be soberly read with
objectivity and not out of context or even as a provision of an act or rule, with pre-
conceived notions apparently exposing virtually ones' own hidden desires or agendas,
if any. If only this Court intends to castigate or condemn anyone, who deserved such
treatment, be it an institution or authority or incumbent in office, there is no need for
it to labour on an excuses to do so indirectly. The monstrosity of the manner in
which the Courts below dealt with the matter, though called for stronger and severe
handling, we desisted from doing so, keeping in view a fond hope that all those

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 concerned would at least attempt to show better performance, greater circumspection
and desired awareness and dispassion to do real, effective and substantial justice.
15. Another aspect which throws considerable doubt about the bonafides of the State
Government and its true colours is the veiled threat of legal action for changed
statements and credibility of Zahira as a witness. It sounds more like a stand of the
defence and not that of the prosecutor. Reading of the statements in this regard gives
an impression as if in the eyes of the State Zahira is the accused who should be in
the dock and not the persons who are made accused in the case. The State
Government had filed application for acceptance of additional evidence primarily on
the ground of what was stated in Zahira's affidavit to highlight the situation when her
evidence and those of others were tendered before the trial court. It is, therefore, not
only unusual but also reveals the total lack of seriousness and creation of a facade in
casting doubts about her credibility and indirect threat to stick to her statement
before the trial court. The State Government's sympathies more for the accused than
the victims become crystal clear when one looks at the State's stand that the
ramifications of the transfer are serious insofar as 'the accused' are concerned. The
statement is made by an officer of the State on affidavit based on his knowledge, and
are purportedly based on records of the case. One wonders how he could know it and
how the records of the case reveal that the counsel for Zahira made "cursory oral
submissions at the end of the submissions" regarding transfer or that the
consequential question was "not permitted to be argued", which again is false, as
noted above. We express our strong displeasure to such exhibition of recklessness
and lack of rectitude shown in filing the application with such false and make believe
statements in abundance. The deponent appears to be only a cat's paw and,
therefore, as noted earlier we do not propose to take any action against him though
the case warranted stringent action.
1 6 . At the least the aforesaid aspects lead to the inevitable conclusion that the
application is thoroughly misconceived, a sheer abuse of process of law and deserves
to be dismissed with exemplary costs. But we refrain from imposing any cost.
17. Now, we shall deal with an application filed by accused Tulsibhai Bhikhabhai
Tadvi Mr. K.T.S. Tulsi, learned senior counsel appearing for him adopted the
submissions of learned counsel for the State of Gujarat. Additionally, he submitted
that when dealing with an appeal against acquittal this Court was required to
consider the evidence which weighed with the Court's directing acquittal. Though we
had restricted the scope of consideration to the rejection of the application under
Sections 311 and 391 of the Code, certain observations have been made which would
prejudice the accused persons. They did not get an opportunity to show that the
evidence on record was otherwise. This plea is also without any substance and does
not merit countenance.
18. When the primary consideration was the justifiability of rejecting the applications
in terms of the Sections 311 and 391 of the Code, the question of considering the
evidence on record did not arise. This Court considered the appeal taking note of
those aspects. It was not necessary to record any finding in the appeals as to
whether the respondents-accused in the appeals were to be convicted or acquitted.
The appeals were allowed for the reasons that the investigation was vitiated. Tainted
evidence was tendered and distorted trial was held and they would suffice to set
aside the judgments. therefore, the question of considering the evidence on record,
except to the extent necessary for deciding the appeals did not arise. The
observations made were in the context of the conduct of the public prosecutor, the
prosecuting agency and the failure of the Courts below to take note of relevant
aspects.

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 19. When the matter is taken up for trial afresh as directed by us it is obvious that
the worth of the evidence has to be considered by the Court concerned on its own
merits and in accordance with law to find out the real truth. That being so, the plea
raised by Mr. Tulsi regarding the need for consideration of the evidence on record is
really of no consequence and has no merit of acceptance.
20. The applications are dismissed.

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