ORDER
1. The challenge in this writ petition is to a Notification dated 20th of November, 1991 issued by the State Government under [SECTION] of the [ACT] constituting designated Courts and appointing Judges to preside over the same, for trial of offences punishable under the said Act. The facts in brief are as under :-
2. The petitioner claims to have filed a complaint before the designated Court at Raichur under [SECTION] of the [ACT], hereinafter referred to as the Act. The Court referred the matter for investigation under [SECTION] of the [ACT] to the Director General of Police on 23-3-1993. A case under the Act was eventually registered on 21st of January 1994, which culminated in the filing of a 'B' report before the designated Court. The petitioner claims to have challenged the said report and while the matter is pending consideration of the designated he filed the present writ petition calling in question the Notification appointing Judges to preside-over designated Courts in 9 different Districts of the State of Karnataka. The Notification reads thus :
Government of Karnataka No. HD 853 SST 90(P) Karnataka Government Secretariate, Vidhana Soudha, Bangalore, Dt. 20-11-1991.
Notification In exercise of the powers conferred by [SECTION] of the [ACT] the Government of Karnataka hereby constitute Designated Courts specified in Column (2) of the Table below for the areas specified the corresponding entries in Column (3) and exercise of the powers conferred by [SECTION] of the said section and with the concurrence of the Chief Justice of the High Court of Karnataka hereby appoints Judges specified in the corresponding entries in Column (4) thereof to preside over such Designate Courts.
(See Table below)
3. As is apparent from a bare perusal, of the above the appointment of Judges to preside over the Courts constituted by the Government under [SECTION] of the Act, is Ex-Officio. The District & Sessions Judge in each one of the Districts mentioned in the Notification has been appointed as the Judge to preside over the desigated Court regardless of who the person holding the said post is. On behalf of the petitioner it was argued that an appointment under [SECTION] can be made only by name of an individual duly qualified to be appointed with the prior concurrence of the Chief Justice of the High Court. An ex- officio appointment, it was contended, it was contended, is not within the comprehension of [SECTION] thereby rendering the impugned Notification legally bad and unsustainable [SECTION] of the Act may at this stage be extracted :
"[SECTION] The Central Government or a State Government may, be notification in the Official Gazette, constitute one or more Designated Courts for such area or areas, or for such case or class or group of cases as may be specified in the notification.
(2) Where a notification constituting a Designated Court for any area or areas or for any case or class or group or cases is issued by the Central Government under [SECTION], and a notification constituting a Designated Court for the same area or areas or for the same case or class
TABLE
Sl. Designated Courts Area Designation of the No. Judges
1. 2. 3. 4.
1. The District and Sessions Shimoga Dist. Dist. and Sessions Court, Shimoga. Judge.
2. The Dist. and Sessions Chickmagalur Dist. and Sessions Court, Chickmagalur. Dist. Judge.
3. The Dist. and Sessions Dakshina Kannada Dist. and Sessions Court, Dakshina Kannada. Dist. Judge.
4. The Dist. and Sessions Belgaum Dist, and Sessions Court, Belgaum. Judge.
5. The Dist. and Sessions Dharwad Dist. Dist. and Sessions Court, Dharwad. Judge.
6. The Dist. and Sessions Uttara Kannada Dist. and Sessions Court, Uttara Kannada. Dist. Judge.
7. The Dist. and Sessions Bijapur Dist. Dist. and Sessions Court, Bijapur. Judge.
8. The Dist. and Sessions Bellary Dist. Dist. and Sessions Court, Bellary. Judge.
9. The Dist. and Sessions Raichur Dist. Dist. and Sessions Court, Raichur. Judge
By Order and in the name of the Governor of Karnataka, (Adhip Chaudhuri) Secy. to Govt. Home Dept. or group of cases has also been issued by a State Government under that sub-section, the Designated Court constituted by the Central Government, whether the notification constituting such Court is issued before or after the issue of the notification constituting the Designated Court by the State Government, shall have, and the Designated Court constituted by the State Government shall not have, jurisdiction to try any offence committed in that area or areas or, as the case may be, the case or class or group of cases, and all cases pending before any Designated Court constituted by the State Government shall stand transferred to the Designated Court constituted by the Central Government.
(3) Where any question arises as to the jurisdiction of any Designated Court, it shall be referred to the Central Government whose decision thereon shall be final.
(4) A Designated Court shall be presided over by a judge to be appointed by the Central Government or, as the case may be, the State Government, with the concurrence of the Chief Justice of the High Court.
(5) The Central Government or, as the case may be, the State Government may also appoint, with the concurrence of the Chief Justice of the High Court, additional Judges to exercise jurisdiction in a Designated Court.
(6) A person shall not be qualified for appointment as a judge or an additional judge of a Designated Court unless he is, immediately before such appointment, a sessions Judge or an additional sessions Judge in any State.
(7) For the removal of doubts, it is hereby provided that the attainment by a person appointed as a judge or an additional Judge of a Designated Court of the age of superannuation under the rules applicable to him in the service to which he belongs, shall not affect his continuance as such judge or additional judge.
(8) Where any additional judge or additional Judges is or are appointed in a Designated Court, the Judge of the Designated Court may, from time to time, by general or special order, in writing, provide for the distribution of business of the Designated Court among himself and the additional judge or additional Judges and also for the disposal of urgent business in the event of his absence or the absence of any additional Judge."
From a careful reading of the above provision, the following significant features emerge :
(i) A designated Court has to be presided over by a judge to be appointed by the Central Government or as the case may be State Government with the concurrence of the Chief Justice of the High Court concerned;
(ii) The appointment must be of a person duly qualified for the same and
(iii) The continuance of any such person as a Judge or Additional Judge of any such designated Court, shall not be affected by the age of superannuation prescribed under the Rules applicable to him in the service to which he belongs."
4. The total effect of the above features which are peculiar to an appointment under the Act is, that the appointment must be made only in regard to an individual Officer and not by reference to the office that the individual may be holding at any given point of time. The scheme of the Act and the purpose underlying the provisions contained in [SECTION] is to ensure that no appointment is made otherwise than with the concurrence of the Chief Justice of the High Court and that such an appointment for the same. [SECTION] in fact forbids an appointment of a person who is not immediately before such at appointment a Sessions Judge or an Additional Sessions Judge in any State. The fact that the continuance of any such Judge or Additional Judge appointed to preside over the designated Court will remain unaffected by the Rules of service applicable to him so that he continues even after he has attained the age of superannuation clearly shows that the individual Judge appointed to preside over the designated Court has to continue regardless of his attaining the age of superannuation. All these features which are special to [SECTION] strongly suggest that the appointment of a Judge or an additional Judge for a Designated Court has to be by name and not Ex-Officio. The very purpose of providing for concurrence of the Chief Justice before making an appointment of a Judge for a Designated Court would be frustrated if such concurrence or appointment is reduced to a one time exercise to enure for all times to come, as is the position in the instant case where the impugned Notification appoints the District and Sessions Judges of the Districts concerned by office to head the designated Courts of their respective District. Such a notification and appointment is a lasting affair and would never in future require either any consultation or concurrence from the Chief Justice in the times to come. The purpose behind the enactment of [SECTION] namely continuance of the Judge so appointed even after he has reached the age of superannuation as per the Rules governing his conditions of service is also defeated if the appointments made Ex-Officio were also held permissible for in any such event, the District and Sessions Judge, of the District concerned retires upon attaining the age of superannuation without being given the protection against such a superannuation as contemplated by [SECTION]. That is so because for the benefit of continuance in office even beyond the age of superannuation to flow to an incumbent, his appointment must be by name and not by reason of the office that he otherwise held. From a careful analysis of the provisions of [SECTION] it appears that the object behind enacting [SECTION] was to provide for continuity in the trial of cases under the Act by allowing the Officer designated to conduct such trials to continue with the same even after he had attained the age of superannuation. It follows that the appointment of any such Judge was not meant to be by reason of the office that he may be otherwise holding as is the position under the impugned Notification. Since the appointment under the Notification are not made by name the Judges appointed ex-officio to preside over the designated courts have at no stage had the benefit of continuing with the trial of cases pending in their respective designated courts even after they had attained the age of superannuation. The Supreme Court had while up-holding the Constitutional validity of [SECTION] of the Act, in [PRECEDENT] observed thus (at page 3189 if Cri LJ) :
"Therefore, we see no force in the above argument challenging the constitutional validity of [SECTION] by availing the observation in [ACT], In . However, we would like to suggest that the Central Government and the State Government at the time of appointing a Judge or an Additional Judge to the Designated Court with the concurrence of the Chief Justice of the High Court concerned should keep in mind that the Judge designate has sufficient tenure of service even at the initial stage of appointment, so that no one may entertain any grievance for continuance of service of a Judge of the Designated Court after attainment of superannuation. Hence [SECTION] does not offend any constitutional provision."
From the above also it is apparent that the appointment of a designated Judge has to be by name looking to his qualifications, age, and suitability to be determined by the Government in concurrence with the Chief Justice. The mandatory requirement of the concurrence of the Chief Justice was never meant to be reduced to a mere one time formality as would be the position if an ex-officio appointment is held to be permissible. In any such event, men would come and go as Judges designate without the Chief Justice at any stage examining the question of their suitability, age and qualification for such appointments. I have therefore no hesitation in holding that the appointments by the impugned Notification are in total negation of the letter and the spirit behind [SECTION] of the Act. This should not however be understood to mean that any order or sentence passed or judgment delivered by courts acting under the colour of authority flowing from the impugned notification would be rendered void or illegal. The doctrine of de-facto authority would save any such judgment order or sentence from the vice of illegality or lack of authority. I am supported in my view by the decision of the apex court in [PRECEDENT] where the legal position was succinctly stated thus (at page 881 of Cri LJ) :
"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 effect 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 jure. Such is the defacto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief."
5. In the result this petition succeeds and is hereby allowed and Notification dated 20th of November, 1991, is quashed but only to the limited extent the same purports to appoint the District and Sessions Judges of the Districts mentioned in the said Notification as Judges of the Designated Court under [SECTION] of the [ACT]. It shall however be open to the State Government to make fresh appointments of Judges to preside over the Designated Courts constituted under the said Notification in accordance with the provisions of [SECTION] and keeping in view the observations made hereinabove.
6. In the circumstances the parties are left to bear their own costs.
Petition allowed.