9911796707
TMI Blog1981 (4) TMI 271X X X X Extracts X X X X X X X X Extracts X X X X ..... n '! Are acquitted accused to be arrested and tried again ? Public Policy is clearly involved. And, in the tangled web of human affairs, law must recognise some consequences as relevant, not on grounds of pure logic but for reasons of practical necessity. To clear the confusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine. de facto doctrine is thus a doctrine of necessity and public policy. Crl. A. No. 234 of 1976 arises out of a proceeding under S.6A of the Essential Commodities Act, by which the District Revenue officer West Godavari, Andhra Pradesh, ordered the confiscation of ₹ 203.74 kgs. Of paddy and ₹ 302.25 kgs. of rice. The appellant, Gokaraju Rangaraju, preferred an appeal under S. 6C of the Essential Commodities Act to the Court of Session, West Godavari. The appeal was heard by Shri G. Anjappa, Additional Sessions Judge and was rejected. The appellant preferred a Criminal Revision Petition before the High Court of Andhra Pradesh. Criminal Appeal Nos. 315 and 316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division' The case was heard and the judgment was pr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... so urged that the attack, if any, on the appointment of Shri Anjappa and Shri Raman Raj was not collateral attack. It was submitted that a question of jurisdiction could be raised at any stage in a criminal case and a trial by a Sessions Judge who was appointed in violation of Art. 233 was not a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under S. 9 of the Code of Criminal Procedure. It was argued that the de facto doctrine was not an absolute doctrine. It was subject to certain limitations. One such limitation was that imposed by Art. 233 of the Constitution. A person appointed as a District Judge contrary to the provisions of Art. 233 was no judge and his judgments were no judgments. It was submitted that the 20th Amendment of the Constitution would be a surplusage if the de facto doctrine was to be applied to judgments rendered by persons appointed as District Judges contrary to the provisions of Art. 233 of the Constitution. It was also suggested that the Fundamental Right of the appellants under Art. 21 of the Constitution was violated as their liberty was being taken away otherwise than in accordance with the procedure established b ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nd persons there are who were charged with very important duties, and whose title to the office on the part of the public cannot be ascertained at the time. You will at once see to what it would lead if the validity of their acts, when in such office, depended upon the propriety of their election. It might tend, if doubts were cast upon them, to consequences of the most destructive kind. It would create uncertainty with respect to the obedience to public officers and it might also lead to persons, instead of resorting to ordinary legal remedies to set right anything done by the officers, taking the law into their own hands . Some interesting observations were made by the Court of Appeal in England in re James (An Insolvent). Though the learned Judges constituting the Court of Appeal differed on the principal question that arose before them namely whether the High Court of Rhodesia was a British Court, there did not appear to be any difference of opinion on the question of the effect of the invalidity of the appointment of a judge on the judgments pronounced by him. Lord Denning M. R., characteristically, said: He sits in the seat of a judge. He wears the robes of a judge. He ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y to the official acts of persons who intruded themselves into an office to which they had not been legally appointed, is as applicable to the conditions now presented as they were to the conditions that then confronted the English Judiciary. We are not required to find a name by which officers are to be known, who have acted under a statute that has subsequently been declared unconstitutional, though we think such officers might aptly be called de facto officers. In Norton v. Shelby Country, Field, J., observed as follows: The doctrine which gives validity to acts of officers de facto whatever defects there may be in the legality of their appointment or election is founded upon considerations of policy and necessity, for the protection of the public and individuals whose interests may be affected thereby. Offices are created for the benefit of the public, and private parties are not permitted to inquire into the title of persons clothed with the evidence of such offices and in apparent possession of their powers and functions. For the good order and peace of society their authority is to be respected and obeyed until in some regular mode prescribed by law their title is in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt principle, which finds concise expression in the legal maxim that the acts of officers de facto cannot be questioned collaterally. In Black on judgments it is said: A person may be entitled to his designation although he is not a true and rightful incumbent of the office, yet he is no mere usurper but holds it under colour of lawful authority. And there can be no question that judgments rendered and other acts performed by such a person who is ineligible to a judgeship but who has nevertheless been duly appointed, and who exercises the power and duties of the office is a de facto judge, and his acts are valid until he is properly removed. The de facto doctrine has been recognised by Indian Courts also. In Pulin Behari v. King Emperor, Sir Ashutosh Mookerjee, J after tracing the history of the doctrine in England observed as follows: The substance of the matter is that the de facto doctrine was introduced into the law as a matter of policy and necessity, to protect the interest of the public and the individual where these interests were involved in the official acts of persons exercising the duties of an office without being lawful officers. The doctrine in fact i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... acts done by a Judge de jure. Such is the de facto doctrine, born of necessity and public policy to prevent needless confusion and endless mischief. There is yet another rule also based on public policy. The defective appointment of a de facto judge may be questioned directly in a proceeding to which he be a party but it cannot be permitted to be questioned in a litigation between two private litigants, a litigation which is of no concern or consequence to the judge except as a judge. Two litigants litigating their private titles cannot be permitted to bring in issue and litigate upon the title of a judge to his office. Otherwise so soon as a judge pronounces a judgment a litigation may be commenced for a declaration that the judgment is void because the judge is no judge. A judge's title to his office cannot be brought into jeopardy in that fashion. Hence the rule against collateral attack on validity of judicial appointments. To question a judge's appointment in an appeal against the judgment is, of course, such a collateral attack. We do not agree with the submission of the learned counsel that the de facto doctrine is subject to the limitation that the defect in the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nce from the Twentieth Amendment of the Constitution that, but for the amendment, the judgments, decrees etc. of the District Judges appointed otherwise than in accordance with the provisions of Art. 233 would be void. We do not think that the inference suggested by Shri Phadke is a necessary inference. It is true that as a general rule the Parliament may be presumed not to make superfluous legislation. The presumption is not a strong presumption and statutes are full of provisions introduced because abundans cautela non nocet (there is no harm in being cautious). When judicial pronouncements have already declared the law on the subject, the statutory reiteration of the law with reference to the particular cases does not lead to the necessary inference that the law declared by the judicial pronouncements was not thought to apply to the particular cases but may also lead to the inference that the statute-making body was mindful of the real state of the law but was acting under the influence of excessive caution and so to silence the voices of doubting Thomases by declaring the law declared by judicial pronouncements to be applicable also to the particular cases. In Chandra Mohan' ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
