N 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 23476
M N Phadke and B Kanta Rao for the Appellant in Crl
A Nos315  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
A No 234 of 1976 arises out of a proceeding under S6A of the Essential Commodities Act by which the District Revenue officer West Godavari Andhra Pradesh ordered the confiscation of Rs 20374 kgs
Of paddy and Rs 30225 kgs of rice
The appellant Gokaraju Rangaraju preferred an appeal under section 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 article 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 article 233 was not a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under section 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 article 233 of the Constitution
A person appointed as a District Judge contrary to the provisions of article 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 article 233 of the Constitution
It was also suggested that the Fundamental Right of the appellants under article 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 vs 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 vs State of Andhra Pradesh and Anr
In Pulin Behari vs 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 vs 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 vs 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 vs Carroll decided by the Supreme Court of Connecticut Re Aldridge decided by the Court of Appeal in New Zealand and Norton vs 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 vs 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 vs 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 vs 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 section Menon vs State of Kerala and Ors a Full Bench of the Kerala High Court consisting of P Govindan Nair KK Mathew and TS 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
article 712 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
1072 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 article 233 and Art 235 of 486 the Constitution
The Twentieth Amendment was the consequence of the decision of the Supreme Court in Chandra Mohan vs State of Uttar Pradesh and Ors that appointments of District Judges made otherwise than in accordance with the provisions of articles 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 article 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 article 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
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 article 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 article 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 488 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
PBR Appeals dismissed


Summary:
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
PC 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 vs Thatsher   87 Seaddling vs Lorant   re
James An Insolvent  Norton vs Shelby Counrty 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 vs King Emperor 1912 15 Cal Law Journal 517  574 Immedisetti Ramkrishnaiah Sons vs State of Andhra Pradesh and Anr AIR 1976 AP 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 712 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 1072 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 vs State of UP 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