CASE NO.: Appeal (civil) 3641 of 1998 PETITIONER: AIR INDIA RESPONDENT: <ORG>. DATE OF JUDGMENT: 31/01/2000 BENCH: G.T. NANAVATI & S.N. PHUKAN JUDGMENT:

JUDGMENT 2000 (1) SCR 505 with C.A. No. 3642 of 1998 The Judgment was delivered by <NAME>, J.

Both these appeals arise out of the judgment of Kerala High Court in Writ Appeal No. 462 of 1999. <ORG> (hereinafter referred to as '<ORG>') had filed that appeal against the decision of a learned Single Judge of that High Court in O.P. No. 25560 of 1998 whereby its said petition was dismissed, <ORG> had challenged the action of <ORG> (for brevity sake referred to as the '<ORG>') of awarding contract for ground handling services at the new Cochin Airport at Nedumbassery to <ORG> The learned single Judge held that the impugned action of <ORG> was neither arbitrary nor illegal. On appeal <ORG> of that Court held that the said action was violative of principles of natural justice, arbitrary and illegal

2. <ORG> is a public sector undertaking. Some other public sector undertakings and the State of Kerala are its shareholders. It has been established for setting up and maintaining a new International Airport at Cochin. For awarding a contract for ground handling facilities at the new Airport it invited offers by writing letters to some companies having experience of that type. The letter were written on 12-11-1997 to <ORG>; <ORG> and six others. Proposals were to be submitted by 31-12-1997. <ORG>, <ORG>, <ORG> of Dubai, <ORG> of Hong Kong and <ORG> - responded. Proposals of some of them contained alternative proposals also. On 13-7-1998 <ORG> again wrote to them to make their best offers on or before 28-7-1998. <ORG> submitted its proposal on 20-7-1998 <ORG> did so on 28-7-1998

3. The Committee constituted by <ORG> for evaluation of the offers met on 28-9-1998. It found that <ORG>, <ORG>, <ORG> and <ORG> were on par as regards technical competence, organizational capacity and past experience. It took note of the fact that <ORG> and <ORG> are Indian organisations, operate mainly in India and have better proven adaptability for operating in Indian conditions. Out of those two it recommended <ORG> for awarding the work. On 11-8-1998 <ORG> wrote a letter to <ORG> recommending <ORG> for awarding the contract on the ground that <ORG> is the national carrier and has better experience. Thereafter a meeting took place between the Managing Director of <ORG> and the Chief Minister of Kerala. That was followed by a letter dated 29-10-1998 by Mr. <NAME>, Managing Director of <ORG> to the Chief Minister of Kerala seeking an opportunity to make a more detailed presentation to the Board of <ORG> on the advantages <ORG> would derive if <ORG> was appointed bits exclusive handling agent. <ORG> met on 7-11-1998 and decided to have a detailed discussion with <ORG> before taking a final decision and informed it to give a presentation before the Board on 27-11-1998. Having come to know about this development <ORG> wrote a letter on 10-11-1998 to the Chief Minister of Kerala pointing out that their company is also an India company and they also have experience of over 30 years in ground handling work. It also took exception to the effort made by <ORG> to revise its offer on the ground that it was unethical and deserved to be condemned by the Board. It again wrote to the Chief Minister on 12-11-1998 against giving preference to a national carrier in view of the policy of liberalisation. On 23-11-1998 <ORG> wrote to <ORG> that it was extremely perturbed over the fact that <ORG> was given a further opportunity to make a presentation to the Board and requested it not to go back upon its earlier decision to give the contract to <ORG>. It also warned that not adhering to its earlier decision would be a retrograde step and shake the confidence of the people in fairness and impartiality of <ORG>. <ORG> gave the presentation and by its letter dated 1-12-1998, reaffirmed its proposal with some changes as discussed and requested <ORG> to accept it as it was better than the offer made by any other party. <ORG> again protested by its letter dated 7-12-1998 and informed <ORG> that to accept the revised offer of <ORG> and not to accept its offer would be unfair and unethical and violative of Limited Global Competitive Building Norms. On 12-12-1998 the first respondent awarded the contract to <ORG>

4. <ORG> filed a writ petition in <ORG> challenging that action of <ORG>. Its contention was that its offer was the highest and it had fulfilled all the conditions. The offer given by <ORG> did not come anywhere near their offer, yet the contract was given to <ORG> because of influence exerted by <ORG> and the Secretary of <ORG>. It was also challenged on the ground that <ORG> had not acted fairly and impartially as it had carried on negotiations with <ORG> behind the back of <ORG> and no opportunity was given to <ORG> to give a better offer. In the counter affidavit filed on behalf of <ORG> it was stated that this was not a case where tenders were invited. It was a project to be implemented by raising finances from various sources and, therefore, it was decided to invite offers from reputed agencies in order to decide best terms and conditions and then to award the contract to the best suited party in order to make the project viable and successful. It was further stated that individual offers were assessed considering the background and infrastructure of the companies, their financial capacity, expertise and future benefits likely accrue to <ORG>. While awarding the contract to <ORG> what had weighted with it was, apart from it selection by the evaluating Committee, that it is a public sector unit, the national carrier under <ORG> and that it had offered to support <ORG> in a big way by showing its willingness in equity participation It had also taken into consideration the fact that <ORG> was not a airline operator like <ORG> and its interest and expertise was limited to ground handling work alone. <ORG> had also offered to help in improving the revenue of <ORG> by increasing Air Traffic through the Cochin Airport. Thus, on a comparative analysis of the offers made by <ORG> and <ORG> it was found that the offer made by <ORG> was better and more beneficial to <ORG>. The petition was heard by a learned Single Judge of <ORG> who held that there was no illegality, arbitrariness or unreasonableness in the decision making process of <ORG> and the decision was taken bona fide after evaluating both the offers and on being satisfied that in the matter of experience, expertise, infrastructure and financial capacity the offer of <ORG> was superior and more beneficial. As regards the allegation of actual mala fides the learned single Judge held that the pleading in that behalf was very vague and scanty

5. The matter was then carried by <ORG> in appeal before the same <ORG>. The Division Bench held that it was a case of public tender. It also held that though the decision of evaluation committee was only recommendatory and not binding on <ORG> of <ORG>, the fact that the evaluation committee had considered all the relevant aspects and found <ORG> as the most competent party and yet no reasons were disclosed for explaining what prompted <ORG> to take a different view was clearly indicative of the fact that <ORG> was influenced in its decision making process by <ORG> and the Secretary of <ORG>. As regards the justification disclosed by <ORG> in its counter affidavit <ORG> held that it was "not impressed with the reasons given in the counter affidavit as it was well known that the reasons given in the counter affidavit cannot be accepted for what has happened at the time of acceptance of the offer"

. It was also of the view that if the other tenderers had also been invited for negotiations by <ORG> then possibly they would have given better offers and pointed out demerits of the offers made by the rival tenderers. It held that <ORG> was influenced by the threat to the effect that if <ORG> was not given the contract, the International Airport will be bereft of flights as <ORG> will not allow other flights to land there. It then held that the action of <ORG> in awarding contract to <ORG> was arbitrary, illegal and opposed to the principles of natural justice. It allowed the appeal, cancelled the contract in favour of <ORG> and directed <ORG> to re-consider the valid tenders once again and, if necessary, to call all those tenderers for negotiations before finalising the contract

6. Challenging this decision of <ORG>, <ORG> has filed Civil Appeal No. 3641 of 1999 and <ORG> has filed Civil Appeal No. 3642 of 1999. Mr. <NAME>, learned senior counsel appearing for <ORG> and Mr. <NAME>, learned senior counsel appearing for <ORG> contended that <ORG> has gone wrong in its conclusion as it adopted a wrong approach in a matter of this type. They submitted that <ORG> committed a grave error in considering this to be a case of public tender. They also submitted that the decision of <ORG> to award the contract to <ORG> was taken bona fide in the financial and overall interest of <ORG> and, therefore, <ORG> while exercising its power under Article 226 ought not to have interfered as no substantial amount of public interest was involved

7. The law relating to award of a contract by the <ORG>, its corporations and bodies acting as instrumentalities and agencies of the Government has been settled by the decision of this <ORG> in <CITATION> 1979 (3) SCC 488 ), <CITATION> 1981 (1) SCC 568 ), <CITATION> . 1985 (1) SCC 260 = 1984 (2) SCALE 819), <CITATION> 1994 (6) SCC 651 = 1995 (1) Arb. LR 193), <CITATION> 1997 (1) SCC 134 = 1996 (8) SCALE 417), and <CITATION> . 1999 (1) SCC 492 = 1999 (1) Arb. LR 431 (SC). The award of a contract, whether it is by a private party or by a public body or the <ORG>, is essentially a commercial transaction. In arriving at a commercial decision considerations which are of paramount are commercial considerations. The <ORG> can choose its own method to arrive at a decision. It can fix its own terms of invitation to tender and that is not open to judicial scrutiny. It can enter into negotiations before finally deciding to accept one of the offers made to it. Price need not always be the sole criterion for awarding a contract. It is free to grant any relaxation, for bona fide reasons, if the tender conditions permit such a relaxation. It may not accept the offer even though it happens to be the highest or the lowest. But the <ORG>, its corporations, instrumentalities and agencies are bound to adhere to the norms, standards and procedures laid down by them and cannot depart from them arbitrarily. Though that decision is not amendable to judicial review, the <ORG> can examine the decision making process and interfere if it is found vitiated by mala fides, unreasonableness and arbitrariness. The <ORG>, its corporations, instrumentalities and agencies have the public duty to be fair to all concerned. Even when some defect is found in the decision making process the <ORG> must exercise its discretionary power under Article 226 with great caution and should exercise it only in furtherance of public interest and not merely on the making out of a legal point. The <ORG> should always keep the larger public interest in mind in order to decide whether its intervention is called for or not. Only when it comes to a conclusion that overwhelming public interest requires interference, the <ORG> should intervene

8. In view of this settled legal position, Mr. <NAME>, learned senior counsel appearing for <ORG> rightly and fairly did not dispute that <ORG> was not bound to accept the highest offer or that it was entitled to enter into negotiations with <ORG>. What he contended was that <ORG> ought to have treated all the tenderers fairly. As <ORG> was given an opportunity to give a presentation and revise its offer it ought to have given a chance to <ORG> also to have its say with respect to the offer made by <ORG> and to match its offer with the offer of <ORG>. He submitted that the evaluation committee had recommended <ORG> for awarding the contract after considering all the relevant factors and, therefore, it was incumbent upon <ORG> to disclose why they different from the said recommendation and decided to accept the offer of <ORG>. He also submitted that the decision of <ORG> was vitiated because of the influence exercised by <ORG> and <ORG> and also because it took into consideration an irrelevant consideration that <ORG> is a public sector undertaking and a national carrier

9. What was emphasised by Mr. <NAME> and Mr. <NAME> is that <ORG> was incorporated to set up a new private International Airport. At all airports, permissions for operating aircraft, maintenance, licensing of crew and flying schedules of airlines is controlled by <ORG>. Applications for hangar space, landing and parking facilities and ground handling are made to and granted by <ORG>. This was the first attempt to privatise. Therefore, <ORG>, in order to make its project viable and successful, after taking into consideration various factors, decided to entrust the task to providing ground handling services for all airlines operating from the airport to one single agency. For achieving this purpose it invited offers by writing letters to eight reputed agencies to enable it to decide the best terms and conditions for awarding the contract and to select the best agency. They submitted that, for these reasons, it did not choose to adopt the public tender mode. In its counter affidavit filed in <ORG> this position was made clear. What was stated in the counter affidavit was as under "The object of inviting their offers was only to get terms and conditions of the respective companies for consideration by <ORG> of this respondent and to select that best suited to the interest of the respondent. Being a new project implemented by raising finance from various sources all efforts were made to make the project viable. Hence when Ext. R1(a) letter was sent inviting offers the paramount consideration was to get the best offer for the benefit of the 1st respondent. There was no minimum estimated amount or other conditions for acceptance and rejection like the usual tender procedure."

<ORG> was also of the view that if the offers were made only pursuant to the letter dated 12-11-1997 the respondents would have a good case. But in view of <ORG> decision to be fair and the <ORG>'s letter dated 13-7-1998 calling upon the tenderers to give the best offer before it took a final decision and informing them that the contract period would be 10 years and the subsequent letter dated 5-8-1998 requiring the tenderers to give a bank guarantee, <ORG> was bound to treat this case as a case of public tender and for that reason it was not open to it to say that it was free to accept that offer which was best suited to it. It is, however, not necessary to deal with this aspect more elaborately and point out how <ORG> view is wrong as it was not disputed by the learned counsel appearing for <ORG> that it was open to <ORG> not to accept the highest offer of <ORG> if it had good reasons to do so. It was at no point of time declared by <ORG> that it would accept the highest offer or accept the offer on a particular basis. All along it had made clear that it would accept that offer which was found to be the best in their interest

10. The only point that really falls for consideration is whether <ORG> had acted fairly after it had invited fresh offers by its letter dated 13-7-1998. It was forcefully submitted by Mr. <NAME> that after <ORG> had evaluated the proposals and recommended <ORG> for the Job it was unfair on the part of <ORG> to have permitted <ORG> to make a fresh presentation and revise its terms. Even while conceding that <ORG> had a right to enter into negotiations even at that stage, it was submitted that <ORG> also should have been invited for negotiations and informed about the revised terms of <ORG>. It was submitted that like <ORG>, <ORG> should have been given an opportunity to match the offer made by <ORG>. From the letter written by <ORG> to <ORG> on 13-7-1998 and similar letters written to others also, it appears that <ORG> had, in its meeting held on 29-6-1998, taken certain decisions and felt that in fairness all eligible agencies should be requested to give their best offers. <ORG> had submitted its offer on 20-7-1998 and stated therein that its offer was open for negotiations. <ORG> had submitted its offer on 28-7-1998. It was made on the basis of certain assumptions. <ORG> had in all received five offers. <ORG> constituted for evaluation of offers did not consider the offer of <ORG> as it had not submitted the required bank guarantee. The other four agendes, namely, <ORG>, <ORG>, <ORG> and <ORG>, were found on par as far as technical competence, organisational capacity and past experience was concerned. It, however, shortlisted <ORG> and <ORG> on the ground that they are Indian organisations, operate mainly in India and has better proven adaptability for operating in Indian conditions. It then recommended <ORG> for undertaking the ground handling services without giving any reason for its preference for <ORG>. While making the decision the Committee observed that it would be for <ORG> to consider whether any negotiation should be held with the qualified agendes. <ORG> had then met on 7-11-1998 and after taking note of the minutes of the high level Committee and taking note of the fact that <ORG> is a public sector undertaking and a national carrier, decided to have a detailed discussion with <ORG> before taking a final decision. It, therefore, invited the Managing Director of <ORG> for giving a presentation before the Board on 27-11-1998. It was also felt necessary to take a final decision in its next meeting to be held on 27-11-1998 as the matter was pending since long and it was necessary to solve the financial crunch of <ORG>. <ORG> had protested against giving of an opportunity to <ORG> to make a presentation by its letters dated 12-11-1998 and 23-11-1998 on the ground that what was being done by <ORG> was improper and in violation of global competitive bidding norms. In spite of the protest of <ORG> <ORG> of <ORG> permitted <ORG> to make a presentation for outlining in detail its ground handling capabilities, packages of services which it wished to offer and other relevant advantages including financial. <ORG> by its letter dated 1-12-1998 recapitulated the details of the offer which it had already made, and the subsequent presentation and discussion on 27-11-1998. The said letter discloses that some changes were made by <ORG> in its original offer to make it more acceptable to <ORG>. In that letter it was also indicated that it would try to enhance <ORG> and other <ORG>' - domestic and international operations through <ORG> and pointed out that only through maximisation of operations this new venture can be a profitable one at an early date. <ORG> again by its letter dated 7-12-1998 reiterated that its offer was the highest (most favourable to <ORG>) and that it would be unfair to accept the revised bid of <ORG>. In spite of the protests of <ORG>, <ORG>, by its letter dated 12-12-1998, informed <ORG> that <ORG> had decided to accept the revised offer of <ORG>

11. This narration of facts makes it clear that all along, after <ORG> had recommended <ORG> for awarding the contract, what <ORG> was contending was that <ORG> having accepted the limited global competitive bidding norms and having decided 28-7-1998 as the last date for inviting final offer, it was not open to it thereafter to negotiate with <ORG> behind the back of <ORG> and permit <ORG> to revise its offer. Even though <ORG> had written protest letters, it had not requested <ORG> to give it any opportunity to negotiate or to improve upon its offer. The decision of <ORG> was obviously not the final decision and certainly it was not binding on <ORG> who were the final authority to take the decision. <ORG>, at the meeting held on 7-11-1998, considered the proposals of <ORG> and <ORG> and appears to have taken a tentative decision to award the contract to <ORG> and, therefore, called it for negotiations with a view to have better terms and take the final decision. <ORG> did take the final decision on 27-11-1998 as <ORG> agreed to make its offer more beneficial to <ORG>. That becomes apparent from <ORG>'s letter dated 1-12-1998. <ORG> having taken tentative decision on 7-11-1998 there was no point in calling <ORG> thereafter for any negotiation. It may be recalled that <ORG> was recommended over <ORG> by <ORG> only because <ORG>'s financial rating was found higher. What is significant to note is that even <ORG> had in its minutes noted that financial rating cannot be the sole criterion for taking the final decision. Moreover, in a commercial transaction of such a complex nature a lot of balancing work has to be done while weighing all the relevant factors and the final decision has to be taken after taking an overall view of the transaction. It is true that even though <ORG> had called upon <ORG> to produce the minutes of the meeting of <ORG> held on 27-11-1998 the same was not made available to <ORG>. But that did not entitle <ORG> to draw any adverse inference. <ORG> had not called upon <ORG> to produce those minutes

12. As regards the merits of <ORG>'s proposal, it was contended by Mr. <NAME> that all the three offers of <ORG> were superior in terms of parameters laid down by <ORG> than <ORG> offer. He submitted that even after <ORG> unilaterally raised the license fee of <ORG> from 17 per cent to 20 per cent in the 10th year to match <ORG>'s offer and imposed a condition that <ORG> would not sub-contract, it did not become comparable with the offer of <ORG> as <ORG> did not offer to pay 2 per cent bonus in license fee. It was also submitted that <ORG> representation that it would be able to bring more traffic was illusory and for that reason also <ORG> proposal cannot be regarded as superior or even comparable with the proposal of <ORG>. We do not think that <ORG> did any wrong in taking into consideration the fact that <ORG> is an airline and being a national carrier would be in a position to bring more traffic of <ORG> and other domestic lines if it was awarded the contract. As regards the merits of the rival offers, we do not think it proper to look at only the financial aspect and hold that <ORG> did not accept <ORG>'s offer, even though it was better, because it wanted to favour <ORG> or that it had acted under the influence of <ORG> and <ORG>. In a commercial transaction of a complex nature what may appear to be better, on the face of it, may not be considered so when an overall view is taken. In such matters the <ORG> cannot substitute it's decision for the decision of the party awarding the contract. On the basis of the material placed on record we find that <ORG> bona fide believed that involving a public sector undertaking and a national carrier would, in the long run, prove to be more beneficial to <ORG> For all these reasons it is not possible to agree with the finding of the High <ORG> that <ORG> had acted arbitrarily and unreasonably and was also influenced by extraneous considerations during its decision making process

13. We, therefore, allow these two appeals, set aside the judgment of <ORG> of <ORG> in Writ Appeal No. 462 of 1999 and confirm the decision of the learned Single Judge in O.P. No. 25560 of 1998


IN THE SUPREME COURT OF INDIA CIVIL APPELLATE JURISDICTION CIVIL APPEAL NO. 7292 OF 2013 (Arising out of S.L.P. (C) No. 14007 of 2012) Union of India and Ors. ... Appellants Versus <NAME> ...Respondent J U D G M E N T

<NAME>, J.

Leave granted,

2. This appeal by special leave is directed against the judgment and order dated 9.5.2011 passed by <ORG> at Jodhpur in D.B. Civil Writ Petition No. 11838 of 2010 whereby <ORG> has concurred with the view expressed by <ORG>, Jodhpur Bench at Jodhpur (for short “the tribunal”) in O.A. No. 109 of 2008 wherein the tribunal had quashed the order passed by the competent authority re-fixing his pay prior to his retirement and directing recovery of the amount paid from 3.12.1994 to 31.12.2007.

3. The undisputed facts are that the respondent was appointed as a Gangman on JU Division on 15.1.1966 as a substitute and was regularized in the year 1972. He was promoted to the post of Store Keeper in October, 1977 and thereafter, he went on deputation to <ORG> in December, 1977. He was given the post of PW <NAME> in the <ORG> with effect from 10.4.1981 in the pay scale of Rs.380-560. On completion of the training he came in the grade of Rs.1400-2300 by <ORG> of the railways. Subsequently, when there was a regular selection for the post of <ORG> in his parent department, he was called to participate in the selection which he did and being declared successful, he joined in the said promotional post on 3.12.1994. While giving him posting in the year 1994, his pay was fixed keeping in view the benefit he had availed while he was working in the <ORG>. When the date of superannuation approached and pension was going to be determined, it was noticed by the accounts department that he had been given excess pay due to erroneous fixation of pay scale and, accordingly, a communication was sent on 22.10.2007 refixing his pay and directing recovery of the excess sum.

4. Being dissatisfied with the said action, the respondent approached the tribunal which, placing reliance on the authorities in <CITATION> and others, <CITATION>  and <CITATION> , quashed the order of refixation and directed the benefit of pension be extended to him on the basis of pay he was actually drawing before the retirement within three months failing which the employer would be liable to pay interest at the rate of 15% per annum.

5. Grieved by the aforesaid order, <ORG> and its functionaries approached <ORG>, which, by the impugned judgment, came to hold as follows: -

“In our considered opinion, no flaw can be noticed in the reasoning arid the conclusion of the <ORG> while allowing the Original Application. In the first place, it is based on the <ORG> decision quoted in the order itself. Secondly, there is no distinction brought about the facts of the case that is subject matter of the case in hand the one before the <ORG>. Thirdly the impugned directions for fixation of the pension on the basis of last drawn pay cannot be said to be either illegal or arbitrary or against any provision of Act or/and rule made thereunder.”

6. On the basis of aforesaid analysis the writ court dismissed the petition.

7. Criticising the orders passed by the tribunal as well as by <ORG> Mr. <NAME>, learned senior counsel for the appellants has submitted that when the respondent was sent on deputation and came back to the parent department accepting promotion he was to be treated at par with other promotees and could not have been entitled to draw higher pay scale solely on the ground that he was getting a better pay while he was on deputation. It is urged by him when the respondent had no legal right to get a particular pay scale and it was wrongly fixed and could only be noticed prior to his retirement it became obligatory on the part of the authorities to refix the pay and accordingly determine the pension and hence, the action of the authorities could not have been found fault with. It is his further submission that neither the tribunal nor <ORG> has addressed the issue pertaining to the entitlement of the respondent but directed the pension to be paid on the basis of the pay drawn by him before the retirement. Learned counsel would further contend that as far as recovery is concerned, the petitioners have no intention to recover the same.

8. Ms. <NAME>, learned counsel for the respondent relying on the authorities which have been pressed into service by the tribunal and accepted by <ORG> urged that pay protection was given when the respondent came back to the parent cadre on promotion and, therefore, the said protection could not have been withdrawn on the foundation that there was an erroneous fixation of pay. It is argued by her that when a long time has lapsed from the date of repatriation on promotion to the parent cadre, steps for refixation immediately prior to superannuation of the respondent is neither permissible in law nor is it equitable. Learned counsel has canvassed that in any case there cannot be recovery of the same as there had been no misrepresentation by the respondent to avail the said benefit.

9. From the aforesaid rivalised submissions two questions, namely, (i) whether the pay of the respondent was erroneously fixed and (ii) whether there could have been a direction for recovery of the amount alleged to have been excessibly paid to the respondent, emerge for consideration.

10. It is perceptible from the orders passed by the tribunal as well as by <ORG> that they have set aside the order dated 22.10.2007 placing reliance on three authorities. In <NAME> (supra), a two-Judge Bench dealt with regularization and permanent absorption. It also dealt with the entitlement of the right of the employees to continue in the concerned project or to resist reversion back to the cadre or to enjoy a higher promotion merely on the basis of locally provisional promotion granted to them in the project in which they had been employed at a particular point of time. The Court has observed that if the stand of the petitioners therein was to be accepted, it would operate inequitably so far as the regular employees in the open line department are concerned. Thereafter, the learned Judges proceeded to state as follows: -

“......while the petitioners cannot be granted the reliefs as prayed for in the writ petition, namely, that they should not be reverted to a lower post or that they should be treated as having been promoted by reason of their promotion in the projects, nevertheless, we wish to protect the petitioners against some of the anomalies which may arise, if the petitioners are directed to join their parent cadre or other project, in future. It cannot be lost sight of that the petitioners have passed trade tests to achieve the promotional level in a particular project. Therefore, if the petitioners are posted back to the same project they shall be entitled to the same pay as their contemporaries unless the posts held by such contemporary employees at the time of such reposting of the petitioners is based on selection.”

11. The learned counsel for the respondent would place reliance on the last part of above quoted paragraph but the same, we are inclined to think, does not in any way buttress the submission put forth by the learned counsel for the respondent.

12. In <NAME> (supra) the issue was whether an employee substantially holding Group ‘D’ post can claim regular promotional post, i.e., Group ‘C’. The Court in that context observed that the practice adopted by the <ORG> of taking work from employees in Group ‘D’ post on higher Group ‘C’ post for unduly long period legitimately raises hopes and claims for higher posts by those working in such higher posts. As the <ORG> is utilising for long periods the services of employees in Group ‘D’ post for higher post in Group ‘C’ carrying higher responsibilities, benefit of pay protection, age relaxation and counting of their service on the higher post towards requisite minimum prescribed period of service, if any, for promotion to the higher post must be granted to them as their legitimate claim. But they cannot be granted relief of regularising their services on the post of Storeman/Clerk merely on the basis of their ad hoc promotion from open line to higher post in the project or construction side. After so stating the Court opined thus:-

“Without disturbing, therefore, orders of the <ORG> and <ORG> the appellants are held entitled to the following additional reliefs. The pay last drawn by them in Group ‘C’ post shall be protected even after their repatriation to Group ‘D’ post in their parent department. They shall be considered in their turn for promotion to Group ‘C’ post. The period of service spent by them on ad hoc basis in Group ‘C’ post shall be given due weightage and counted towards length of requisite service, if any, prescribed for higher post in Group ‘C’. If there is any bar of age that shall be relaxed in the case of the appellants.”

13. Reading the decision in entirety we are persuaded to think that the directions were issued in the special fact- situation and, in any case, it does not pertain to a situation where someone gets repatriated on being selected to a higher post and on that foundation would claim pay protection and consequent fixation of pay in the selection post.

14. In <NAME> (supra) the <ORG> was dealing with fixation of pay under FR 22-C and as there was a wrong fixation, the question of recovery arose. The <ORG>, relying on earlier decisions, opined thus:-

“The relief against recovery is granted by courts not because of any right in the employees, but in equity, exercising judicial discretion to relieve the employees from the hardship that will be caused if recovery is ordered. But, if in a given case, it is proved that the employee had knowledge that the payment received was in excess of what was due or wrongly paid, or in cases where the error is detected or corrected within a short time of wrong payment, the matter being in the realm of judicial discretion, courts may, on the facts and circumstances of any particular case, order for recovery of the amount paid in excess. <CITATION> , <CITATION> , <CITATION> , <CITATION> , Col. <NAME> (<ORG>.) v. <ORG>, <CITATION> , <CITATION>  and Bihar SEB v. <NAME>.”

15. From the aforesaid decision it is clear as day that it has been relied upon to by the tribunal as well as by <ORG> for the purpose that there should be no recovery. Mr. <NAME> has conceded that steps shall not be taken for any recovery, and we think that the concession has been justly given. Be it noted, the aforesaid decision does not assist the respond to pyramid the submission of pay fixation and grant of pension.

16. <CITATION>  the Court was dealing with a fact-situation where there was withdrawal of pensionary benefits. Adverting to the concept of natural justice and, relying on the decisions in <CITATION>  and <CITATION> , the Court ruled thus: -

“16. It is not in dispute that before directing revision of the pension, etc. payable to the private respondents, <ORG> did not give them action-oriented notice and opportunity of showing cause against the proposed action. Therefore, it must be held that the direction given by <ORG> to revise the retiral benefits including the pension payable to the respondents was nullity.

17. Dehors the above conclusion, we are convinced that the action taken by the appellants to revise and reduce the retiral benefits payable to the respondents was ex facie arbitrary, unreasonable and unjustified and the learned Single Judge did not commit any error by declaring that <ORG> did not have the jurisdiction to unilaterally alter/change the option exercised by the writ petitioners under Section 12-A(4)(b) read with Section 12-A(4-C).”

17. The aforesaid conclusion was arrived at as <ORG> as such could not have invoked the terms of the memorandum of settlement to justify the directives and retiral benefits payable to the respondents. The aforesaid decision has to be read in the context of its facts and not to be construed as a precedent for the proposition that if the pay has been erroneously fixed that cannot be revised even if the facts are absolutely clear and undisputed.

18. We may note with profit that Mr. <NAME>, learned senior counsel, has submitted that the respondent was holding an ex-cadre post and it was the duty of the employer to ask him to participate in the selection in the promotional post, in the parent cadre. The respondent, being conscious of his position and to have the status, appeared in the selection process, got selected and joined the parent cadre. The learned senior counsel would submit that under a mistaken pression his pay was fixed in the promotional post in the parent cadre as a consequence of which he got more than the promotees in his batch and, hence, the same was required to be rectified and the employer was within its right to do so.

19. It is not in dispute that the respondent was sent on deputation and his lien in the parent department continued and hence, it was obligatory on the part of the authorities in the parent department to intimate him when the selection process for the higher post was undertaken as he had already come within the zone of consideration. In this context, we may refer with profit to the authority in <CITATION>  wherein the Court was dealing with a case whether the employee had got a promotion in the department to which he was sent on deputation. While considering the effect of the said promotion after repatriation the Court observed thus:- “that the appellant’s promotion as junior draftsman and proposed promotion as Surveyor-cum-Draftsman in <ORG> cannot confer any rights on him in his parent department. When he left <ORG> and joined <ORG> he was a tracer and he can go back to <ORG> or any other department of <ORG> only to his original post i.e. as tracer, subject to the modification that, if in the meantime he had qualified for promotion to a higher post, that benefit cannot be denied to him. ” Thus, the repatriation has to be to the original post and benefit of promotion in the department to which an employee is deputed is of no consequence subject to his entitlement of status otherwise available in the parent department.

20. <CITATION>  it has been held that when a deputationist is repatriated he cannot claim promotions in the parent department on the basis on officiation in a higher post in the borrower organization.

21. <CITATION> , the learned Judges elaborately adverted to the concept of deputation and the right of a deputationist and in that context opined thus:-

“The concept of “deputation” is well understood in service law and has a recognised meaning. “Deputation” has a different connotation in service law and the dictionary meaning of the word “deputation” is of no help. In simple words “deputation” means service outside the cadre or outside the parent department. Deputation is deputing or transferring an employee to a post outside his cadre, that is to say, to another department on a temporary basis. After the expiry period of deputation the employee has to come back to his parent department to occupy the same position unless in the meanwhile he has earned promotion in his parent department as per the Recruitment Rules.”

22. In the case at hand, as stated earlier, the respondent was getting higher scale of pay in the post while he was holding a particular post as a deputationist. After his repatriation to the parent cadre on selection to a higher post he was given higher scale of pay as it was fixed keeping in view the pay scale drawn by him while he was working in the ex-cadre post. Such fixation of pay, needless to say, was erroneous and, therefore, the authorities were within their domain to rectify the same. Thus analysed, the irresistible conclusion is that the tribunal and <ORG> have fallen into error by opining that the respondent would be entitled to get the pension on the basis of the pay drawn by him before his retirement.

23. Consequently, the appeal is allowed in part and the orders passed by the tribunal as well as by <ORG> are set aside directing fixation of pension on the base of pay drawn by the respondent. However, as conceded to by Mr. <NAME>, there shall be no recovery from the excess amount paid to the respondent. There shall be no order as to costs.

.................................J.

[Anil R. Dave] .................................J.

[Dipak Misra] New Delhi August 27, 2013.

[1] (2005) 11 SCC 301 [2] (2005) 11 SCC 304 [3] (2009) 3 SCC 475 [4] 1995 Supp (1) SCC 18 [5] (1994) 2 SCC 521 [6] (1996) 4 SCC 416 [7] (1997) 6 SCC 139 [8] ? -----------------------


Reportable IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 223 OF 2008 Rattiram & Ors. .............Appellant Versus State of M. P. Through Inspector of Police .........Respondent WITH CRIMINAL APPEAL NO. 458 OF 2008 Satyanarayan & ors. ............Appellant Versus The State of Madhya Pradesh Through Incharge, Police Station Cantt. .........Respondent J U D G M E N T

<NAME>, J.

Perceiving divergent and contradictory views as regards the effect and impact of not committing an accused in terms of Section 193 of the Code of Criminal Procedure (for short `the Code') in cases where charge-sheet is filed under Section 3(1)(x) of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for brevity `the Act') and cognizance is directly taken by the Special Judge under the Act, a two-Judge Bench thought it apposite to refer the matter to a larger Bench and on the basis of the said reference, the matter has been placed before us. At this juncture, it is requisite to clarify that the real conflict or discord is manifest in <CITATION> and <CITATION> on one hand wherein it has been held that the conviction by <ORG> is not sustainable if it has suo motu entertained and taken cognizance of the complaint directly without the case being committed to it and, therefore, there should be retrial or total setting aside of the conviction, as the case may be, and the other in State of M. P. v. Bhooraji & Ors.3 wherein, taking aid of Section 465 (1) of the Code , it has been opined that when a trial has been conducted by the court of competent jurisdiction and a conviction has been recorded on proper appreciation of evidence, the same cannot be erased or effaced merely on the ground that there had been no committal proceeding and cognizance was taken by <ORG> inasmuch as the same does not give rise to failure of justice.

1 AIR 2004 SC 1890 2 (2004) 1 SCC 215 3 AIR 2001 SC 3372

2. The necessitous facts required to be adumbrated for the purpose of answering the present reference are that the appellants were charge sheeted under Section 3 (1) (x) of the Act but eventually, charges were framed under Sections 147 , 148 and 302 read with Section 149 of the Indian Penal Code (for short, `the IPC '). The learned Trial Judge vide judgment dated 31.08.1996 in Sessions Trial No. 97 of 1995 convicted all the accused persons barring <NAME> for the offences under Section 302 read with Section 149  and sentenced them to imprisonment for life with a fine of Rs. 1000/-, in default of payment of fine, to suffer further rigorous imprisonment for three months and sentenced to one month rigorous imprisonment under Section 147 of the . The accused <NAME> was convicted for the offence under Sections 148 and 302 of the  and was sentenced to undergo one month rigorous imprisonment on the first score and to further life imprisonment and pay a fine of Rupees 1000/-, in default of payment of fine, to suffer further R.I. for three months on the second count.

3. Being dissatisfied with the judgment of conviction and the order of sentence, the appellants along with others preferred Criminal Appeal No. 1568 of 1996 before <ORG> at Jabalpur. Apart from raising various contentions on merits, it was pressed that the entire trial was vitiated as it had commenced and concluded without committal of the case to <ORG> as provided under Section 193 of the Code. Heavy reliance was placed on <CITATION> (supra) and Vidyadharan (supra) but the Division Bench placed reliance on <NAME> (supra) wherein <NAME> (supra) was distinguished keeping in view the stage of the case and regard being had to the provision contained in Section 465 of the Code and treated the same to be a binding precedent in view of the special Bench decision of <ORG> rendered in <CITATION> and repelled the contention accordingly. Thereafter, as the impugned judgment would reveal, the Bench proceeded to deal with the matter on merits and eventually sustained the conviction and affirmed the sentence as has been indicated hereinbefore.

4 AIR 2000 SC 740 5 2003 (1) MPJR 158

4. We have heard Mr. <NAME>, learned senior counsel and Mr. <NAME> for the appellants in both the appeals and Ms. <NAME>, learned counsel for the respondent-

State.

5. At the very outset, we shall advert to the jurisdiction or authority of <ORG> to take cognizance of the offence under the Act regardless of the interdict stipulated in Section 193 of the Code. Section 193 of the Code reads as follows:

"193. Cognizance of offence by Court of Session- Except as otherwise expressly provided by this Code or by any other law for the time being in force, no court of Session shall take cognizance of any offence as a court of original jurisdiction unless the case has been committed to it by a Magistrate under this code."

On a plain reading of the aforesaid provision, it is clear as noon day that <ORG> can take cognizance of any offence as a court of original jurisdiction except as otherwise expressly provided by the Code or any other law for the time being in force.

6. The questions that emanate, as a natural corollary, for consideration are whether <ORG> as constituted under the Act is <ORG>; and whether there is any special provision in the Act enabling the said court to take cognizance.

7. In <NAME> (supra), a two-Judge Bench of this <ORG>, after taking note of Section 6 of the Code and Section 14 of the Act, came to the conclusion that the intendment of the legislature is to treat <ORG> under the Act to be <ORG> even after specifying it as <ORG> and it would continue to be essentially <ORG> and not get denuded of its character or power as <ORG>. The <ORG> scanned the anatomy of the Act and analysed the postulates contained in Sections 4 and 5 of the Code and thereafter, referring to the <ORG> decisions in A. R.

<CITATION> and another6 and in <CITATION> and another7, expressed thus:

"16. Hence we have no doubt that <ORG> under this Act is essentially <ORG> and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code . In other words, a complaint or a charge-sheet cannot straight away be laid down before <ORG> under the Act.

6 (1984) 2 SCC 500 7 (1994) 3 SCC 440

8. In Vidyadharan (supra), the Court delved into the said issue and eventually proceeded to state as follows:

"23. Hence, we have no doubt that <ORG> under this Act is essentially <ORG> and it can take cognizance of the offence when the case is committed to it by the Magistrate in accordance with the provisions of the Code . In other words, a complaint or a charge-sheet cannot straight away be laid down before <ORG> under the Act. We are reiterating the view taken by this Court in <CITATION> . [ : 2000 SCC (Cri) 488] in the above terms with which we are in respectful agreement. <ORG> in the case at hand, undisputedly, has acted as one of original jurisdiction, and the requirements of Section 193 of the Code were not met." The aforesaid view was reiterated in <NAME> (supra). In M. A.

<CITATION> and another8, another two-Judge Bench ruled that the Special Judge under the Act cannot entertain a complaint filed before it and issue process after taking cognizance without the case being committed to it for trial by the competent Magistrate. It is apt to mention here that similar view has been spelt out in Bhooraji (supra).

9. After careful perusal of the aforesaid decisions, we have no scintilla of doubt that the view expressed which has a base of 8 (2004) 4 SCC 231 commonality is absolutely correct and there is no necessity to dwell upon the same more so when there is no cavil or conflict in this regard and there has been no reference on the said score.

Additionally, no doubt has been expressed relating to the exposition of the said view, and irrefragably correctly so.

10. The demonstrable facet of the discord is that if cognizance is directly taken by the Special Judge under the Act and an accused without assailing the same at the inception allows the trial to continue and invites a judgment of conviction, would he be permitted in law to question the same and seek quashment of the conviction on the bedrock that the trial Judge had no jurisdiction or authority to take cognizance without the case being committed to it and thereby violated the mandate enshrined under Section 193 of the Code.

11. To make the maze clear, it is profitable to note that in Gangula Ashok (supra), the appellants had called in question the legal substantiality of the order passed by the Single Judge of <ORG> who, after expressing the view that the Special Judge had no jurisdiction to take cognizance of the offence under the Act without the case being committed to it, set aside the proceedings of <ORG> and further directed the charge-sheet and the connected papers to be returned to the police officer concerned who, in turn, was required to present the same before the Judicial Magistrate of Ist Class for the purpose of committal to <ORG>. That apart, the Single Judge further directed that on such committal, <ORG> shall frame appropriate charges in the light of the observation made in the order.

12. The two-judge Bench accepted the view as far as it pertained to setting aside of the impugned order but did not approve the direction issued for the steps to be taken by the Special Judge for framing of charges as it was of the view that no direction could have been issued to <ORG> as it was open to the appellants therein to raise all their contentions at the stage of framing of charge if they wished to advance a plea for discharge. Thus, it is evident that the accused-appellants had challenged the order of framing of charge and sought quashing of the same before <ORG>. They did not wait for the trial to commence and the judgment of conviction to visit them.

13. After the dictum in Gangula Ashok (supra), <ORG> of Madhya Pradesh was dealing with an appeal, Bhooraji (supra), wherein the appellants were convicted under Sections 148 , 323 , 302 / 149  and sentenced to various punishments including imprisonment for life. It is worth noting that they were tried by the Special Judge under the Act as charge-sheet was filed under Section 3 (2) of the Act along with other offences of the IPC . When the matter came up before <ORG> of <ORG>, the learned Judges commenced the judgment with the prelude that the case had sluggished for more than nine years and the end was not in sight as direction for retrial seemed inevitable because of the decision rendered by this <ORG> in Gangula Ashok (supra).

14. Be it noted, cognizance was taken directly by the Special Judge in the said case also. The anguish and the helplessness expressed by <ORG> was taken note of when the State of Madhya Pradesh approached this Court. This Court laid emphasis on the fact that it was a case where the accused neither raised any objection when they were heard at the time of framing of the charge nor did they raise such a plea at any stage either before or after the evidence was recorded by the trial Court but, a significant one, proponed such a contention only after the conviction was recorded and that too after the decision in Gangula Ashok (supra) was rendered.

15. As is perceptible, the Bench posed the question whether <ORG> necessarily should have quashed the trial proceedings to be repeated only on account of the declaration of the legal position made by this Court concerning the procedural aspect about the cases involving the offences under the Act. The Bench referred to the provisions contained in Sections 462 and 465 of the Code and adverted to the concept of "a failure of justice" and held thus:

"15. A reading of the section makes it clear that the error, omission or irregularity in the proceedings held before or during the trial or in any enquiry were reckoned by the legislature as possible occurrences in criminal courts. Yet the legislature disfavoured axing down the proceedings or to direct repetition of the whole proceedings afresh. Hence, the legislature imposed a prohibition that unless such error, omission or irregularity has occasioned "a failure of justice" the superior court shall not quash the proceedings merely on the ground of such error, omission or irregularity.

xxx xxx xxx xxx xxx

17. It is an uphill task for the accused in this case to show that failure of justice had in fact occasioned merely because the specified <ORG> took cognizance of the offences without the case being committed to it. The normal and correct procedure, of course, is that the case should have been committed to <ORG> because that court being essentially <ORG> can take cognizance of any offence only then. But if a specified <ORG>, on the basis of the legal position then felt to be correct on account of a decision adopted by <ORG>, had chosen to take cognizance without a committal order, what is the disadvantage of the accused in following the said course?

18. It is apposite to remember that during the period prior to the Code of Criminal Procedure 1973, the committal court, in police charge-

sheeted cases, could examine material witnesses, and such records also had to be sent over to <ORG> along with the committal order. But after 1973, the committal court, in police charge-sheeted cases, cannot examine any witness at all. The Magistrate in such cases has only to commit the cases involving offences exclusively triable by <ORG>. Perhaps it would have been possible for an accused to raise a contention before 1973 that skipping committal proceedings had deprived him of the opportunity to cross-examine witnesses in the committal court and that had caused prejudice to his defence. But even that is not available to an accused after 1973 in cases charge-sheeted by the police. We repeatedly asked the learned counsel for the accused to tell us what advantage the accused would secure if the case is sent back to <ORG> merely for the purpose of retransmission of the records to <ORG> through a committal order. We did not get any satisfactory answer to the above query put to the counsel."

16. After so stating, the Court proceeded to deal with the stance whether the Special Judge as a Court of Session would remain incompetent to try the case until the case is committed and, after critical ratiocination, declined to accept the said stand and opined that the expression "a Court of competent jurisdiction" as envisaged in Section 465 of the Code is to denote a validly constituted court conferred with the jurisdiction to try the offence or offences and such a court could not get denuded of its competence to try the case on account of any procedural lapse and the competence would remain unaffected by the non-

compliance with the procedural requirement. The Bench further proceeded to lay down that the inability to take cognizance of an offence without a committal order does not mean that a duly constituted court becomes an incompetent court for all purposes.

It was also ruled that had an objection been raised at the earlier stage, the Special Judge could have sent the record to the Magistrate for adopting committal proceeding or return the police report to the Public Prosecutor or the police for presentation before the Magistrate. In essentiality, it has been laid down that the bar against taking cognizance of certain offences or by certain courts cannot govern the question whether the <ORG> concerned is a "<ORG> of competent jurisdiction" and further the condition precedent for taking cognizance is not the standard to determine whether the <ORG> concerned is "a <ORG> of competent jurisdiction". In the ultimate eventuate, <NAME> (supra) ruled that when the trial had been conducted by a <ORG> of competent jurisdiction, the same cannot be annulled by such a lapse and, accordingly, remitted the matter to the High <ORG> for disposal of the appeal afresh on the basis of evidence already on record. It needs no special emphasis to highlight that in <NAME> (supra), the controversy had emerged on the similar set of facts and the legal issues had emanated on the common platform and were dealt with. Therefore, unquestionably, it was a precedent operating in the field.

17. It is seemly to note that the decision in Bhooraji (supra) was possibly not brought to the notice of their Lordships who have decided the cases in Moly (supra) and Vidyadharan (supra). In Moly (supra), later two-Judge Bench set aside the judgment of conviction and remitted the matter as cognizance was directly taken by <ORG>. In Vidyadharan (supra), the Bench held thus:-

"24. The inevitable conclusion is that the learned Sessions Judge, as the undisputed factual position goes to show, could not have convicted the appellant for the offence relatable to Section 3(1)(xi) of the Act in the background of the legal position noted supra. That is, accordingly, set aside. However, for the offence under Sections 354 and 448 , custodial sentence for the period already undergone, which as the records reveal is about three months, would meet the ends of justice considering the background facts and the special features of the case."

As is perceivable, in one case, the matter was remitted and in the other, the conviction under Section 3 (1)(xi) was set aside and no retrial was directed.

18. At this stage, we may proceed to x-ray the ratio of M. A.

<NAME> (supra). In the said case, the challenge was to the order passed by <ORG> under Section 482 of the Code wherein the learned Judge had quashed the order of the Special Judge taking cognizance of the offence under Section 3 (1)(x) of the Act. The two-Judge Bench referred to the authorities in Gangula Ashok (supra) and <NAME> (supra) and gave the stamp of approval to the order passed by <ORG> and eventually, while dismissing the appeal, observed as follows:-

"However, it will be open to the appellant, if so advised, to file a complaint before a competent Magistrate who shall consider the complaint on its merit and then proceed in accordance with law. The learned <ORG> as well as <ORG> have made certain observations touching on the merit of the controversy. We make it clear that in case a complaint is filed by the appellant before a competent Magistrate, he shall proceed to consider the matter in accordance with law uninfluenced by any observation made either by the learned Special Judge or by <ORG>. Nothing said in this judgment also shall be construed as expression of opinion on the merit of the case."

19. It is apposite to note that in the said case, the assail was different and the Bench was not considering the effect of non-

committal under Section 193 of the Code after conviction was recorded. Though it referred to the authority in Vidyadharan (supra), yet that was to a limited extent. Hence, the said pronouncement cannot be regarded or treated to be one in line with Vidyadharan (supra) and is, therefore, kept out of the purview of conflict of opinion that has emerged in the two streams of authorities.

20. Before we advert whether Bhooraji (supra) was correctly decided or Moly (supra) and Vidyadharan (supra) laid down the law appositely, it is appropriate to dwell upon whether Bhooraji (supra) was a binding precedent and, what would be the consequent effect of the later decisions which have been rendered without noticing it.

21. <CITATION> (dead) by L. Rs. And Others9, <ORG>, speaking through <NAME>, CJ, has held thus:-

"We are of opinion that a pronouncement of law by a Division Bench of this Court is binding on a Division Bench of the same or a smaller number of Judges, and in order that such decision be binding, it is not necessary that it should be a decision rendered by <ORG> or a Constitution Bench of the Court"

22. <CITATION> , <ORG> of the High Court had come to the conclusion that the decision in <CITATION> .11 was not a binding precedent in view of the later decisions of the co-equal 9 ( 1989) 2 SCC 754 10 AIR 1995 SC 1480 11 AIR 1977 SC 308 Bench of this Court in <CITATION> and <CITATION> . It is worth noting that <ORG> of the High Court proceeded that the decision in Ratna Prabha (supra) was no longer good law and binding on it. The matter was referred to <ORG> which overruled the decision passed by <ORG>. When the matter travelled to this Court, it observed thus:-

"<ORG> of <ORG> in 1989 MPLJ 20 was clearly in error in taking the view that the decision of this Court in Ratna Prabha (AIR 1977 SC 308) (supra) was not binding on it. In doing so, <ORG> of <ORG> did something which even a later co- equal Bench of this Court did not and could not do."

23. <CITATION> , a subsequent Constitution Bench reiterated the view that had already been stated in <NAME> (supra).

24. Thus viewed, the decision in Bhooraji (supra) was a binding precedent, and when in ignorance of it subsequent decisions have been rendered, the concept of per incuriam would come into play. In this context, it is useful to refer to a passage from A. R.

12 AIR 1980 SC 541 13 AIR 1985 SC 339 14 (2003) SCC (L & S) 827 Antulay (supra), wherein, <NAME>, J (as his Lordship then was), while dealing with the concept of per incuriam, had observed thus:-

""Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong."

Again, in the said decision, at a later stage, the Court observed:-

"It is a settled rule that if a decision has been given per incuriam the court can ignore it."

25. <CITATION> Court, Chandigarh & Ors.15, another Constitution Bench, while dealing with the issue of per incuriam, opined as under:-

"The Latin expression per incuriam means through inadvertence. A decision can be said generally to be given per incuriam when this <ORG> has acted in ignorance of a previous decision of its own or when a High <ORG> has acted in ignorance of a decision of this <ORG>."

26. In State of U. P. And Another v. <ORG> And Another16, a two-Judge Bench adverted in 15 (1990) 3 SCC 682 16 (1991) 4 SCC 139 detail to the aspect of per incuriam and proceeded to highlight as follows:-

"`Incuria' literally means `carelessness'. In practice per incuriam appears to mean per ignoratium. English courts have developed this principle in relaxation of the rule of stare decisis. The `quotable in law' is avoided and ignored if it is rendered, `in ignoratium of a statute or other binding authority'. (Young v. <ORG>). Same has been accepted, approved and adopted by this Court while interpreting Article 141 of the Constitution which embodies the doctrine of precedents as a matter of law."

27. Recently, in <CITATION> . 18, while addressing the issue of per incuriam, a two-Judge Bench, speaking through one of us (<NAME>, J.), after referring to the dictum in <ORG> (supra) and certain passages from Halsbury's Laws of England and <NAME> (supra), has stated thus:-

"149. The analysis of English and Indian Law clearly leads to the irresistible conclusion that not only the judgment of a larger strength is binding on a judgment of smaller strength but the judgment of a co-equal strength is also binding on a Bench of Judges of co-equal strength. In the instant case, judgments 17 (1944) 1 KB 718 : (1944) 2 ALL ER 293 18 AIR 2011 SC 312 : ( 2011) 1 SCC 694 mentioned in paragraphs 135 and 136 are by two or three judges of this Court. These judgments have clearly ignored a <ORG> judgment of this Court in <NAME>'s case (supra) which has comprehensively dealt with all the facets of anticipatory bail enumerated under Section 438 of Code of Criminal Procedure Consequently, judgments mentioned in paragraphs 135 and 136 of this judgment are per incuriam.

150. In case there is no judgment of a Constitution Bench or larger Bench of binding nature and if the court doubts the correctness of the judgments by two or three judges, then the proper course would be to request Hon'ble the Chief Justice to refer the matter to a larger Bench of appropriate strength."

28. The sequitur of the above discussion is that the decisions rendered in Moly (supra) and Vidyadharan (supra) are certainly per incuriam.

29. Presently, we shall proceed to address which view should be accepted as just and flawless. The centripodal issue, as we understand, is whether non-compliance of the interdict as envisaged and engrafted under Section 193 of the Code nullifies the final verdict after the trial and warrants its total extinction resulting in retrial, or it is incumbent on the part of the convict to exposit and satisfy that such guillotining of the interdict has occasioned in `failure of justice' or culminated in causation of prejudice to him for the purpose of declaring that the trial was vitiated.

30. In <NAME> (supra), the Bench has referred to Sections 462 and 465 of the Code which occur in Chapter 35 of the Code .

Section 465 reads as follows:-

"465. Finding or sentence when reversible by reason of error, omission or irregularity.

- (1) Subject to the provisions hereinbefore contained, no finding, sentence or order passed by a Court of competent jurisdiction shall be reversed or altered by a Court of appeal, confirmation or revision on account of any error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial or in any inquiry or other proceedings under this Code, or any error, or irregularity in any sanction for the prosecution unless in the opinion of that court, a failure of justice has in fact been occasioned thereby.

(2) In determining whether any error, omission or irregularity in any proceeding under this Code, or any error, or irregularity in any sanction for the prosecution has occasioned a failure of justice, the <ORG> shall have regard to the fact whether the objection could and should have been raised at an earlier stage in the proceedings."

31. On a studied scrutiny of the anatomy of the said provision, it is luculent that the emphasis has been laid on a `court of competent jurisdiction' and `error, omission or irregularity in the complaint, summons, warrant, proclamation, order, judgment or other proceedings before or during trial' and `a failure of justice has in fact been occasioned thereby'. The legislative intendment inhered in the language employed is graphically clear that lancination or invalidation of a verdict after trial is not to be taken recourse to solely because there is an error, omission or irregularity in the proceeding. The term `a failure of justice' has been treated as the sine qua non for setting aside the conviction.

32. The submission of Mr. <NAME> and Mr. <NAME>, learned counsel for the appellants, is that it is not a mere irregularity but a substantial illegality. They have placed heavy reliance on paragraph 11 of Moly (supra) wherein the Bench has used the expression `that Section 193 imposes an interdict on all courts of Session against taking cognizance of an offence as a Court of original jurisdiction' and have also drawn inspiration from paragraph 17 of the said decision which uses the words `lack of jurisdiction'. The question posed by us fundamentally relates to the non-compliance of such interdict. The crux of the matter is whether it is such a substantial interdict which impinges upon the fate of the trial beyond any redemption or, for that matter it is such an omission or it is such an act that defeats the basic conception of fair trial. Fundamentally, a fair and impartial trial has a sacrosanct purpose. It has a demonstrable object that the accused should not be prejudiced.

A fair trial is required to be conducted in such a manner which would totally ostracise injustice, prejudice, dishonesty and favouritism.

33. <CITATION> 19, it has been laid down that `fair trial' includes fair and proper opportunities allowed by law to the accused to prove innocence and, therefore, adducing evidence in support of the defence is a valuable right and denial of that right means denial of fair trial.

It is essential that rules of procedure designed to ensure justice should be scrupulously followed and the courts should be zealous in seeing that there is no breach of them.

34. In this regard, we may fruitfully reproduce the observations from <CITATION> )20 wherein it has been so stated: -

"In the Indian Criminal jurisprudence, the accused is placed on a somewhat advantageous position than under different jurisprudence of some of the countries in the world. The criminal justice administration system in India places 19 (2007) 2 SCC 258 20 (2010) 6 SCC 1 human rights and dignity for human life at a much higher pedestal. In our jurisprudence an accused is presumed to be innocent till proved guilty, the alleged accused is entitled to fairness and true investigation and fair trial and the prosecution is expected to play balanced role in the trial of a crime. The investigation should be judicious, fair, transparent and expeditious to ensure compliance to the basic rule of law. These are the fundamental canons of our criminal jurisprudence and they are quite in conformity with the constitutional mandate contained in Articles 20 and 21 of the Constitution of India."

[Underlining is ours]

35. It would not be an exaggeration if it is stated that a `fair trial' is the heart of criminal jurisprudence and, in a way, an important facet of a democratic polity that is governed by Rule of Law. Denial of `fair trial' is crucifixion of human rights. It is ingrained in the concept of due process of law. While emphasising the principle of `fair trial' and the practice of the same in the course of trial, it is obligatory on the part of the Courts to see whether in an individual case or category of cases, because of non-compliance of a certain provision, reversion of judgment of conviction is inevitable or it is dependent on arriving at an indubitable conclusion that substantial injustice has in fact occurred. The seminal issue is whether protection given to the accused under the law has been jeopardised as a consequence of which there has been failure of justice or causation of any prejudice. In this regard, it is profitable to refer to the decision in <CITATION> 21 wherein a three-Judge Bench has opined thus:-

"This court in `<NAME> v. The state of Madhya Pradesh22 elaborately discussed the question of the applicability of Section 537 and came to the conclusion that in judging a question of prejudice, as a guilt, courts must act with a broad vision and look to the substance and not to technicalities, and their main concern should be to see whether the accused had a fair trial, whether he knew what he was being tried for, whether the main facts sought to be established against him were explained to him fairly and clearly and whether he was given a full and fair chance to defend himself.

[Emphasis added]

36. Having dealt with regard to the concept of `fair trial' and its significant facets, it is apt to state that once prejudice is caused to the accused during trial, it occasions in `failure of justice'.

`Failure of justice' has its own connotation in various jurisprudences. As far as criminal jurisprudence is concerned, we may refer with profit to certain authorities. Be it noted that in Bhooraji (supra), the <ORG> has referred to <ORG>

21 AIR 1957 SC 623 22 1956 CriLJ 291 : AIR 1956 SC 116  <CITATION> wherein it has been observed as follows:-

"23. We often hear about "failure of justice" and quite often the submission in a criminal court is accentuated with the said expression. Perhaps it is too pliable or facile an expression which could be fitted in any situation of a case. The expression `failure of justice' would appear, sometimes, as an etymological chameleon (the simile is borrowed from Lord <NAME> in <ORG> vs. <ORG>). The criminal court, particularly the superior court should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage."

[Emphasis supplied]

37. In State by <CITATION> , <ORG> had upheld an order of discharge passed by the trial court on the ground that the sanction granted to prosecute the accused was not in order. The two-

Judge Bench referred to Sections 462 and 465 of the Code and ultimately held thus:-

23 (2001) 2 SCC 577 : 2001 SCC (Cri) 358 24 (1977) 1 All ER 813 25 AIR 2004 SC 5117 "13. In State of M.P.

v .

B hooraji and Ors. (2001) (7) SCC 679, the true essence of the expression "failure of justice" was highlighted.

Section 465 of the Code in fact deals with "finding or sentences when reversible by reason of error, omission or irregularity", in sanction.

14. In the instant case neither the Trial <ORG> nor <ORG> appears to have kept in view the requirements of sub-section (3) relating to question regarding "failure of justice". Merely because there is any omission, error or irregularity in the matter of according sanction that does not affect the validity of the proceeding unless the <ORG> records the satisfaction that such error, omission or irregularity has resulted in failure of justice.

The same logic also applies to the appellate or revisional <ORG>. The requirement of sub-

section (4) about raising the issue, at the earliest stage has not been also considered.

Unfortunately <ORG> by a practically non-reasoned order, confirmed the order passed by the learned trial judge. The orders are, therefore, indefensible. We set aside the said orders. It would be appropriate to require <ORG> to record findings in terms of Clause (b) of Sub-section (3) and Sub-section (4) of Section 19 ."

38. We have referred to the said authority only for the purpose of a failure of justice and the discernible factum that it had concurred with the view taken in Bhooraji (supra). That apart, the matter was remitted to adjudge the issue whether there had been failure of justice, and it was so directed as the controversy pertained to the discharge of the accused.

39. <CITATION> , it was observed: -

"10. A court of appeal or revision is debarred from reversing a finding (or even an order of conviction and sentence) on account of any error of irregularity in the sanction for the prosecution, unless failure of justice had been occasioned on account of such error or irregularity. For determining whether want of valid sanction had in fact occasioned failure of justice the aforesaid sub-section (2) enjoins on the court a duty to consider whether the accused had raised any objection on that score at the trial stage. Even if he had raised any such objection at the early stage it is hardly sufficient to conclude that there was failure of justice. It has to be determined on the facts of each case. But an accused who did not raise it at the trial stage cannot possibly sustain such a plea made for the first time in the appellate court."

The concept of failure of justice was further elaborated as follows:-

"11. In a case where the accused failed to raise the question of valid sanction the trial would normally proceed to its logical end by making a judicial scrutiny of the entire materials. If that case ends in conviction there is no question of failure of justice on the mere premise that no valid sanction was accorded for prosecuting the public servant because the very purpose of 26 (1999) 8 SCC 501 providing such a filtering check is to safeguard public servants from frivolous of mala fide or vindictive prosecution on the allegation that they have committed offence in the discharge of their official duties. But once the judicial filtering process is over on completion of the trial the purpose of providing for the initial sanction would bog down to a surplusage. This could be the reason for providing a bridle upon the appellate and revisional forums as envisaged in Section 465 of the Code of Criminal Procedure."

40. Adverting to the factum of irregular investigation and eventual conviction, <ORG> in <NAME> v.

State of Mysore27 opined thus: -

"It has been emphasized in a number of decisions of this Court that to set aside a conviction it must be shown that there has been miscarriage of justice as a result of an irregular investigation."

41. After adverting to the concept of failure of justice, it is obligatory to dwell upon the aspect whether there is or can be any failure of justice if a Special Judge directly takes cognizance of an offence under the Act. Section 209 of the Code deals with the commitment of case to <ORG> when an offence is triable exclusively by it. The said provision reads as follows: -

"209. Commitment of case to Court of Session when offence is triable exclusively by it. -

27 AIR 1971 SC 508 When in a case instituted on a police report or otherwise, the accused appears or is brought before the Magistrate and it appears to the Magistrate that the offence is triable exclusively by <ORG>, he shall -

(a) Commit, after complying with the provisions of section 207 or section 208 , as the case may be, the case to <ORG>, and subject to the provisions of this Code relating to bail, remand the accused to custody until such commitment has been made;

(b) Subject to the provisions of this Code relating to bail, remand the accused to custody during, and until the conclusion of, the trial;

(c) Send to that Court the record of the case and the documents and articles, if any, which are to be produced in evidence;

(d) Notify the Public Prosecutor of the commitment of the case to <ORG>."

42. Prior to coming into force of the present Code, Section 207 of the Code of Criminal Procedure, 1898 dealt with committal proceedings. By the Criminal Law Amendment Act , 1955, Section 207 of the Principal Act was substituted by Sections 207 and 207A . To appreciate the inherent aspects and the conceptual differences in the previous provisions and the present one, it is imperative to reproduce Sections 207 and 207A of the old Code. They read as under:

"207. In every inquiry before a magistrate where the case is triable exclusively by <ORG> or <ORG>, or, in the opinion of the magistrate, ought to be tried by such Court, the magistrate shall, -

(a) In any proceeding instituted on a police report, follow the procedure specified in section 207A ; and

(b) In any other proceeding, follow the procedure specified in the other provisions of this Chapter.

207A. (1) When, in any proceeding instituted on a police report the magistrate receives the report forwarded under Section 173 , he shall, for the purpose of holding an inquiry under this section, fix a date which shall be a date of the receipt of the report, unless the magistrate, for reasons to be recorded, fixes any later date.

(2) If, at any time before such date, the officer conducting the prosecution applies to the magistrate to issue a process to compel the attendance of any witness or the production of any document or thing, the magistrate shall issue such process unless, for reasons to be recorded, he deems it unnecessary to do so.

(3) At the commencement of the inquiry, the magistrate shall, when the accused appears or is brought before him, satisfy himself that the documents referred to in section 173 have been furnished to the accused and if he finds that the accused has not been furnished with such documents or any of them, he shall cause the came to be so furnished.

(4) The magistrate shall then proceed to take the evidence of such persons, if any as may be produced by the prosecution as witnesses to the actual commission of the offence alleged, and if the magistrate is of opinion that it is necessary in the interests of justice to take the evidence of any one or more of the other witnesses for the prosecution, he may take such evidence also.

(5) The accused shall be at liberty to cross-

examine the witnesses examined under sub-

section (4), and in such case, the prosecutor may re-examine them.

(6) When the evidence referred to in sub-section (4) has been taken and the magistrate has considered all the documents referred to in section 173 and has, if necessary, examined the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him and given the prosecution and the accused an opportunity of being heard, such magistrate shall, if he is of opinion that such evidence and documents disclose no grounds for committing the accused person for trial, record his reasons and discharge him unless it appears to the Magistrate that such person should be tried before himself or some other magistrate, in which case he shall proceed accordingly.

(7) When, upon such evidence being taken, such documents being considered, such examination (if any) being made and the prosecution and the accused being given an opportunity of being heard, the magistrate is of opinion that the accused should be committed for trial, he shall frame a charge under his hand, declaring with what offence the accused is charged.

(8) As soon as such charge has been framed, it shall be read and explained to the accused and a copy thereof shall be given to him free of cost.

(9) The accused shall be required at once to give in, orally or in writing, a list of the persons, if any, whom he wishes to be summoned to give evidence on his trial:

Provided that the magistrate may, in his discretion, allow the accused to give in his list or any further list of witnesses at a subsequent time; and, where the accused is committed for trial before <ORG>, nothing in this sub-

section shall be deemed to preclude the accused from giving, at any time before his trial, to the Clerk of the <ORG> a further list of the persons whom he wishes to be summoned to give evidence on such trial.

(10) When the accused, on being required to give in a list under sub-section (9), has declined to do so, or when he has given in such list, the magistrate may make an order committing the accused for trial by <ORG> or <ORG>, as the case may be, and shall also record briefly the reasons for such commitment.

(11) When the accused has given in any list of witnesses under sub-section (9) and has been committed for trial, the magistrate shall summon the witnesses included in the list to appear before the Court to which the accused has been committed:

Provided that where the accused has been committed to <ORG>, the magistrate may, in his discretion, leave such witnesses to be summoned by the Clerk of the State and such witnesses may be summoned accordingly:

Provided also that if the magistrate thinks that any witness is included in the list for the purpose of vexation of delay, or of defeating the ends of justice, the magistrate may require the accused to satisfy him that there are reasonable grounds for believing that the evidence of such witness is material, and if he is not so satisfied, may refuse to summon the witness (recording his reasons for such refusal), or may before summoning him require such sum to be deposited as such magistrate thinks necessary to defray the expense of obtaining the attendance of the witness and all other proper expenses.

(12) Witnesses for the prosecution, whose attendance before <ORG> or <ORG> is necessary and who appear before the magistrate shall execute before him bonds binding themselves to be in attendance when called upon by <ORG> or <ORG> to give evidence.

(13) If any witness refuses to attend before <ORG> or <ORG>, or execute the bond above directed, the magistrate may detain him in custody until he executes such bond or until his attendance at <ORG> or <ORG> is required, when the magistrate shall send him in custody to <ORG> or <ORG> as the case may be.

(14) When the accused is committed for trial, the magistrate shall issue an order to such person as may be appointed by <ORG> in this behalf, notifying the commitment, and stating the offence in the same form as the charge; and shall send the charge, the record of the inquiry and any weapon or other thing which is to be produced in evidence, to <ORG> or where the commitment is made to <ORG>, to the Clerk of the <ORG> or other officer appointed in this behalf by <ORG>.

(15) When the commitment is made to <ORG> and any part of the record is not in English, an English translation of such part shall be forwarded with the record.

(16) Until and during the trial, the magistrate shall, subject to the provisions of this Code regarding the taking of bail, commit the accused by warrant to custody."

43. On a bare perusal of the above quoted provisions, it is plain as day that an exhaustive procedure was enumerated prior to commitment of the case to <ORG>. As is evincible, earlier if a case was instituted on a police report, the magistrate was required to hold enquiry, record satisfaction about various aspects, take evidence as regards the actual commission of the offence alleged and further was vested with the discretion to record evidence of one or more witnesses. Quite apart from the above, the accused was at liberty to cross-examine the witnesses and it was incumbent on the magistrate to consider the documents and, if necessary, examine the accused for the purpose of enabling him to explain any circumstances appearing in the evidence against him by the prosecution and afford the accused an opportunity of being heard and if there was no ground for committing the accused person for trial, record reasons and discharge him. Thus, the accused enjoyed a substantial right prior to commitment of the case. It was indeed a vital stage. But, in the committal proceedings in praesenti, the magistrate is only required to see whether the offence is exclusively triable by <ORG>. Mr. <NAME>, learned senior counsel, would submit that the use of the words "it appears to the magistrate" are of immense signification and the magistrate has the discretion to form an opinion about the case and not to accept the police report. To appreciate the said submission, it is apposite to refer to Section 207 of the 1973 Code which lays down for furnishing of certain documents to the accused free of cost. Section 209(a) clearly stipulates that providing of the documents as per Section 207 or Section 208 is the only condition precedent for commitment. It is noteworthy that after the words, namely, "it appears to the Magistrate", the words that follow are "that the offence is triable exclusively by <ORG>". The limited jurisdiction conferred on the magistrate is only to verify the nature of the offence. It is also worth noting that thereafter, a mandate is cast that he "shall commit". Evidently, there is a sea of difference in the proceeding for commitment to <ORG> under the old Code and under the existing Code. There is nothing in Section 209 of the Code to even remotely suggest that any of the protections as provided under the old Code has been telescoped to the existing one.

44. It is worth noting that under the Code of Criminal Procedure, 1898, a full-fledged Magisterial enquiry was postulated in the committal proceeding and the prosecution was then required to examine all the witnesses at this stage itself. In 1955, the <ORG> by Act 26 of 1955 curtailed the said procedure and brought in Section 207A to the old Code. Later on, <ORG> in its 41st Report, recommended thus:-

"18.19. After a careful consideration we are of the unanimous opinion that committal proceedings are largely a waste of time and effort and do not contribute appreciably to the efficiency of the trial before <ORG>. While they are obviously time- consuming, they do not serve any essential purpose. There can be no doubt or dispute as to the desirability of every trial, and more particularly of the trial for a grave offence, beginning as soon as practicable after the completion of investigation. Committal proceedings which only serve to delay this step, do not advance the cause of justice. The primary object of protecting the innocent accused from the ordeal of a sessions trial has not been achieved in practice; and the other main object of apprising the accused in sufficient detail of the case he has to meet at the trial could be achieved by other methods without going through a very partial and ineffective trial rehearsal before a Magistrate. We recommend that committal proceedings should be abolished."

We have reproduced the same to accentuate the change that has taken place in the existing Code. True it is, the committal proceedings have not been totally abolished but in the present incarnation, it has really been metamorphosed and the role of the Magistrate has been absolutely constricted.

45. In our considered opinion, because of the restricted role assigned to the Magistrate at the stage of commitment under the new Code, the non-compliance of the same and raising of any objection in that regard after conviction attracts the applicability of the principle of `failure of justice' and the convict-appellant becomes obliged in law to satisfy the appellate court that he has been prejudiced and deprived of a fair trial or there has been miscarriage of justice. The concept of fair trial and the conception of miscarriage of justice are not in the realm of abstraction. They do not operate in a vacuum. They are to be concretely established on the bedrock of facts and not to be deduced from procedural lapse or an interdict like commitment as enshrined under Section 193 of the Code for taking cognizance under the Act. It should be a manifestation of reflectible and visible reality but not a routine matter which has roots in appearance sans any reality. Tested on the aforesaid premised reasons, it is well nigh impossible to conceive of any failure of justice or causation of prejudice or miscarriage of justice on such non-compliance. It would be totally inapposite and inappropriate to hold that such non-compliance vitiates the trial.

46. At this juncture, we would like to refer to two other concepts, namely, speedy trial and treatment of a victim in criminal jurisprudence based on the constitutional paradigm and principle. The entitlement of the accused to speedy trial has been repeatedly emphasized by this Court. It has been recognised as an inherent and implicit aspect in the spectrum of Article 21 of the Constitution. The whole purpose of speedy trial is intended to avoid oppression and prevent delay. It is a sacrosanct obligation of all concerned with the justice dispensation system to see that the administration of criminal justice becomes effective, vibrant and meaningful. The concept of speedy trial cannot be allowed to remain a mere formality (see  <CITATION> , <CITATION> and <CITATION> ).

47. While delineating on the facets of speedy trial, it cannot be regarded as an exclusive right of the accused. The right of a victim has been given recognition in <NAME> and <NAME>. v.

<NAME> and ors.31 wherein it has been observed thus: -

"Any inordinate delay in conclusion of a criminal trial undoubtedly has highly deleterious effect on the society generally and particularly on the two sides of the case. But it will be a grave mistake to assume that delay in trial does not cause acute suffering and anguish to the victim of the offence. In many cases the victim may suffer even more than the accused. There is, therefore no reason to give all the benefits on account of the delay in trial to the accused and to completely deny all justice to the victim of the offence."

[Emphasis supplied]

48. It is worthnoting that the Constitution Bench in <CITATION> and another32, though in a different context, had also observed that delay in the prosecution of a guilty person comes to his 28  29 AIR 2007 SC 56 30 AIR 1998 SC 3281 31 AIR 2009 SC 1535 32 AIR 2005 SC 2119 advantage as witnesses becomes reluctant to give evidence and the evidence gets lost.

49. We have referred to the aforesaid authorities to illumine and elucidate that the delay in conclusion of trial has a direct nexus with the collective cry of the society and the anguish and agony of an accused. Decidedly, there has to be a fair trial and no miscarriage of justice and under no circumstances, prejudice should be caused to the accused but, a pregnant one, every procedural lapse or every interdict that has been acceded to and not objected at the appropriate stage would not get the trial dented or make it unfair. Treating it to be unfair would amount to an undesirable state of pink of perfection in procedure. An absolute apple pie order in carrying out the adjective law, would only be sound and fury signifying nothing.

50. In the case at hand, as is perceivable, no objection was raised at the time of framing of charge or any other relevant time but only propounded after conviction. Under these circumstances, the right of the collective as well as the right of the victim springs to the forefront and then it becomes obligatory on the part of the accused to satisfy the court that there has been failure of justice or prejudice has been caused to him.

Unless the same is established, setting aside of conviction as a natural corollary or direction for retrial as the third step of the syllogism solely on the said foundation would be an anathema to justice. Be it noted, one cannot afford to treat the victim as an alien or a total stranger to the criminal trial. The criminal jurisprudence, with the passage of time, has laid emphasis on victimology which fundamentally is a perception of a trial from the view point of the criminal as well as the victim. Both are viewed in the social context. The view of the victim is given due regard and respect in certain countries. In respect of certain offences in our existing criminal jurisprudence, the testimony of the victim is given paramount importance. Sometimes it is perceived that it is the duty of the court to see that the victim's right is protected. A direction for retrial is to put the clock back and it would be a travesty of justice to so direct if the trial really has not been unfair and there has been no miscarriage of justice or failure of justice.

51. We may state without any fear of contradiction that if the failure of justice is not bestowed its due signification in a case of the present nature, every procedural lapse or interdict would be given a privileged place on the pulpit. It would, with unnecessary interpretative dynamism, have the effect potentiality to cause a dent in the criminal justice delivery system and eventually, justice would become illusory like a mirage. It is to be borne in mind that the <ORG> deliberately obliterated certain rights conferred on the accused at the committal stage under the new Code. The intendment of the <ORG> in the plainest sense is that every stage is not to be treated as vital and it is to be interpreted to subserve the substantive objects of the criminal trial.

52. Judged from these spectrums and analysed on the aforesaid premises, we come to the irresistible conclusion that the objection relating to non-compliance of Section 193 of the Code, which eventually has resulted in directly entertaining and taking cognizance by the Special Judge under the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act , 1989, does not vitiate the trial and on the said ground alone, the conviction cannot be set aside or there cannot be a direction of retrial and, therefore, the decision rendered in Bhooraji (supra) lays down the correct law inasmuch as there is no failure of justice or no prejudice is caused to the accused. The decisions rendered in Moly (supra) and Vidyadharan (supra) have not noted the decision in Bhooraji (supra), a binding precedent, and hence they are per incuriam and further, the law laid down therein, whereby the conviction is set aside or matter is remanded after setting aside the conviction for fresh trial, does not expound the correct proposition of law and, accordingly, they are hereby, to that extent, overruled.

53. The appeals be placed before the appropriate Bench for hearing on merits.

....................................J.

[Dalveer Bhandari] ....................................J.

[T. S. Thakur] ....................................J.

[Dipak Misra] New Delhi;

February 17, 2012.