On the judicial role and the holistic reading of statutes 1. 2. 3. 4. P. Ramachandra Rao v.

State of Karnataka, (2002) 4 SCC 578 Padma Sundara Rao v. State of Tamil Nadu, (2002) 3 SCC 533 D.M. Aravali Golf Club v. Chander Hass, 2007 (14) SCALE 1 Bhatia International v. Bulk Trading S.A., (2002) 4 SCC 105

MANU/SC/0328/2002 Equivalent Citation: AIR 2002 SC 1856, 2001 (4) SCALE 226, (2002) 4 SCC 578, [2002] 3 SCR 68 IN THE SUPREME COURT OF INDIA Decided On: 16.04.2002 Appellants: P. Ramachandra Rao Vs. Respondent: State of Karnataka Hon'ble Judges: S. P. Bharucha, C.J., S. S. M. Quadri, R. C. Lahoti, N. Santosh Hedge, Doraiswamy Rajuu Raju, Ruma Pal and Dr. Arijit Pasayat, JJ. JUDGMENT R.C. Lahoti, J. 1. No person shall be deprived of his life or his personal liberty except according to procedure established by law-declares Article 21 of the Constitution. Life and liberty, the words employed in shaping Article 21, by the Founding Fathers of the Constitution, are not to be read narrowly in the sense drearily dictated by dictionaries, they are organic terms to be construed meaningfully. Embarking upon the interpretation thereof, feeling the heart-throb of the Preamble, deriving strength from the Directive Principles of State Policy and alive to their constitutional obligation, the Courts have allowed Article 21 to stretch its arms as wide as it legitimately can. The mental agony, expense and strain which a person proceeded against in criminal law has to undergo and which, coupled with delay, may result in impairing the capability or ability of the accused to defend himself have persuaded the constitutional courts of the country in holding the right to speedy trial a manifestation of fair, just and reasonable procedure enshrined in Article 21. Speedy trial, again, would encompass within its sweep all its stages including investigation, inquiry, trial, appeal, revision and re-trial - in short everything commencing with an accusation and expiring with the final verdict - the two being respectively the terminus a quo and terminus ad quem --of the journey which an accused must necessarily undertake once faced with an implication. The constitutional philosophy propounded as right to speedy trial has though grown in age by almost two and a half decades, the goat sought to be achieved is yet a far-off peak. Myriad fact-

situations bearing testimony to denial of such fundamental right to the accused persons, on account of failure on the part of prosecuting agencies and executive to act, and their turning an almost blind eye at securing expeditious and speedy trial so as to satisfy the mandate of Article 21 of the Constitution have persuaded this Court in devising solutions which go to the extent of almost enacting by judicial verdict bars of limitation beyond which the trial shall not proceed and the arm of law shall lose its hold. IN its zeal to protect the right to speedy trial of an accused, can the Court devise and almost enact such bars of limitation though the Legislature and the Statutes have not chosen to do sois a question of far-reaching implication which has led to the constitution of this Bench of seven-Judge strength. 2. In Criminal Appeal No. 535/2000 the appellant was working as an Electrical Superintendent in the Mangalore City Corporation. For the check period 1.5.1961 to 25.8.1987 he was found to have amassed assets disproportionate to his known sources of income. Charge-sheet accusing him of offences under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 was filed on 15.31994. Accused appeared before the Special Court and was enlarged on bail on 6.6.1994. Charges were framed on 10.8.1994 and the case proceeded for trial on 8.11.1994. However, the trial did not commence. On 23.2.1999 the learned Special Judge who was seized of the trial directed the accused to be acquitted as the trial had not commenced till then and the period of two years had elapsed which obliged him to acquit the accused in terms of the directions of this court in Raj Deo Sharma v. State of Bihar: 1998 Cri LJ 4596 (hereinafter, Raj Deo Sharma-I ). The State of Karnataka through the D.S.P. Lokayukta, Mangalore preferred an appeal before the high Court putting in issue the acquittal of the accused. The learned Single Judge of the High Court, vide the impugned order, allowed the appeal, set aside the order of acquittal and remanded the case to the Trial Court, forming an opinion that a case charging an accused with corruption was an exception to the directions made in Raj Deo Sharma-I as clarified by this Court in Raj Deo Sharma (II) v. State of Bihar: 1999 Cri LJ 4541. Strangely enough the High Court not only condoned a delay of 55 days in filing the appeal against acquittal by the State but also allowed the appeal itself-both without even issuing notice to the accused. The aggrieved accused has filed this appeal by special leave. Similar are the facts in all the other appeals. Shorn of details, suffice it to say that in all the appeals the accused persons who were facing corruption charges, were acquitted by the Special Courts for failure of commencement of trial in spite of lapse of two years from the date of framing of the charges and all the State appeals were allowed by the High Court without noticing the respective accused persons. 3. The appeals came up for hearing before a Bench of three learned Judges who noticed the common ground that the appeals in the High Court were allowed by the learned Judge thereat without issuing notice to the accused and upon this ground alone, of want of notice, the appeals here at could be allowed and the appeals before the High Court restored to file for fresh disposal after notice to the accused but it was felt that a question arose in these appeals which was likely to arise in many more and therefore the appeals should be heard on their merits. In the order dated September 19, 2000, the Bench of

three learned Judges stated: "The question is whether the earlier judgments of this court, principally, in Common Cause v. Union of India: 1996 Cri LJ 2380, Common Cause v. Union of India 1996: AIR 1996 SC 3538 Raj Deo Sharma v. State of Bihar: 1998 Cri LJ 4596 and Raj Deo Sharma (II) v. State of Bihar: 1999 Cri LJ 4541 , would apply to prosecution under the Prevention of Corruption Act and other economic offences. Having perused the judgments afore-mentioned, we are of the view that these appeals should be heard by a Constitution Bench. We take this view because we think that it may be necessary to synthesize the various guidelines and directions issued in these judgments. We are also of the view that a Constitution Bench should consider whether time limits of the nature mentioned in some of these judgments can, under the law, be laid down". 4. On 25th April, 2001 the appeals were heard by the Constitution Bench and during the course of hearing attention of the Constitution Bench was invited to the decision of an earlier Constitution Bench in Abdul Rehman Antulay and Ors. v. R.S. Nayak and Anr. : 1992 Cri LJ 2717 and the four judgments referred to in the order of reference dated 19th September, 2000 by the Bench of three learned Judges. It appears that the learned Judges of the Constitution Bench were of the opinion that the directions made in the two Common Cause cases and the two Raj Deo Sharma's cases ran counter to the Constitution Bench directions in Abdul Rehman Antulay's case, the latter being fiveJudge Bench decision, the appeals deserved to be heard by a Bench of seven learned Judges. The relevant part of the order dated 26th April, 2001 reads as under:"The Constitution Bench judgment in A.R. Antulay's case holds that "it is neither advisable nor feasible to draw or prescribe an outer time limit for conclusion of all criminal proceedings". Even so, the four judgments afore-mentioned lay down such time limits. Two of them also lay down to which class of criminal proceedings such time limits should apply and to which class they should not. We think, in these circumstances, that a Bench of seven learned Judges should consider whether the dictum afore-mentioned in A.R. Antulay's case still holds the field: if not, whether the general directions of the kind given in these judgments are permissible in law and should be upheld. Having regard to what is to be considered by the Bench of seven learned Judges, notice shall issue to the Attorney General and the Advocates General of the States. The papers shall be placed before the Hon'ble the Chief Justice for appropriate directions. Having regard to the importance of the matter, the Bench may be constituted at an early date". 5. On 20.2.2002 the Court directed, "Common Cause", the petitioner in the two Common Cause cases which arose out of writ-petitions under Article 32 of the

Constitution, heard and decided by this Court as public interest litigations, to be noticed. "Common Cause" has responded and made appearance through counsel. 6. We have heard Shri Harish Salve, the learned Solicitor General appearing for Attorney General for India, Mr. Ranjit Kumar, Senior Advocate assisted by Ms. Binu Tamta, Advocate for the appellants Mr. Sanjay R. Hegde and Mr. Satya Mitra, Advocates for the respondents. Mr. S. Muralidhar, Advocate for "Common Cause" and such other Advocates General and Standing Counsel who have chosen to appear for the States. 7. We shall briefly refer to the five decision cited in the order of reference as also to a few earlier decisions so as to highlight the issue posed before us. 8. The width of vision cast on Article 21, so as to perceive its broad sweep and content, by seven-Judge Bench of this Court in Mrs. Maneka Gandhi v. Union of India and Anr., : [1978] 2 SCR 621 , inspired a declaration of law, made on February 12, 1979 in Hussainara Khatoon and Ors. (I) v. Home Secretary, State of Bihar -: 1979 Cri LJ 1036 , that Article 21 confers a fundamental right on every person not to be deprived of his life or liberty, except according to procedure established by law; that such procedure is not some semblance of a procedure but the procedure should be "reasonable, fair and just"; and therefrom flows, without doubt, the right to speedy trial. The Court said - "No procedure which does not ensure a reasonably quick trial can be regarded as 'reasonable, fair or just and it would fall foul of Article 21. There can, therefore, be no doubt that speedy trial, and by speedy trial we mean reasonably expeditious trial, is an integral and essential part of the fundamental right to life and liberty enshrined in Article 21." Many accused persons tormented by unduly lengthy trial or criminal proceedings, in any forum whatsoever were enabled, by Hussainara Khatoon(I) statement of law, in successfully maintaining petitions for quashing of charges, criminal proceedings and/or conviction, on making out a case of violation of Article 21 of the Constitution. Right to speedy trial and fair procedure has passed through several milestones on the path of constitutional jurisprudence. In Maneka Gandhi (supra) , this Court held that the several fundamental rights guaranteed by Part III required to be read as components of one integral whole and not as separate channels. The reasonableness of law and procedure, to withstand the test of Articles 21 19 and 14, must be right and just and fair and not arbitrary, fanciful or oppressive, meaning thereby that speedy trial must be reasonably expeditious trial as an integral and essential part of the fundamental right of life and liberty under Article 21. Several cases marking the trend and development of law applying Maneka Gandhi and Hussainara Khatoon(I) principles to myriad situations came up for the consideration of this Court by a Constitution Bench in Abdul Rehman Antulay and Ors. v. R.S. Nayan and Ors. : 1992 Cri LJ 2717, (A.R. Antulay, for short). The proponents of right to speedy trial strongly urged before this Court for taking one step forward in the direction and prescribing time limits beyond which no criminal proceeding should be allowed to go on, advocating that unless this was done. Maneka Gandhi and Hussainara Khatoon(I) exposition of Article 21 would remain a mere illusion and a platitude. Invoking of the constitutional jurisdiction of this Court so as to judicially forge two termini and lay down periods of limitation applicable like a mathematical formula,

beyond which a trial or criminal proceeding shall not proceed, was resisted by the opponents submitting that the right to speedy trial was an amorphous one something less than other fundamental rights guaranteed by the Constitution. The submissions made by proponents included that the right to speedy trial following from Article 21 to be meaningful, enforceable and effective ought to be accompanied by an outer limit beyond which continuance of the proceedings will be violative of Article 21. It was submitted that Section 468 of the Code of Criminal Procedure applied only to minor offences but the Court should extend the same principle to major offences as well. It was also urged that a period of 10 years calculated from the date of registration of crime should be placed as an outer limit wherein shall be counted the time taken by the investigation. 9. The Constitution Bench, in A.R. Antulay's case, heard elaborate arguments. The Court, it its pronouncement, formulated certain propositions, 11 in number, meant to serve a guidelines. It is not necessary for our purpose to reproduce all those propositions. Suffice it to state that in the opinion of the Constitution Bench (i) fair, just and reasonable procedure implicit in Article 21 of the Constitution creates a right in the accused to be tried speedily; (ii) right to speedy trial following from Article 21 encompasses all the stages, namely, the stage of investigation, inquiry, trial, appeal, revision and re-trial; (iii) who is responsible for the delay and what factors have contributed towards delay relevant factors. Attendant circumstances, including nature of the offence, number of accused and witnesses, the work-load of the court concerned, prevailing local conditions and so on-what is called the systemic delays must be kept in view; (iv) each and every delay does not necessarily prejudice the accused as some delays indeed work to his advantage. Guidelines 8, 9, 10 and 11 are relevant for our purpose and hence are extracted and reproduced hereunder:"(8) Ultimately, the court has to balance and weight the several relevant factors'balancing test' or 'balancing process'-and determine in each case whether the right to speedy trial has been denied in a given case. (9) Ordinarily speaking, where the court comes to the conclusion that right to speedy trial of an accused has been infringed the charges or the conviction, as the case may be, shall be quashed. But this is not the only course open. The nature of the offence and other circumstances in a given case may be such that quashing of proceedings may not be in the interest of justice. In such a case, it is open to the court to make such other appropriate order-including an order to conclude the trial within a fixed time where the trial is not concluded or reducing the sentence where the trial has concluded as may be deemed just and equitable in the circumstances of the case. (10) It is neither advisable nor practicable to fix any time-limit for trial of offences. Any such rule is bound to be qualified one. Such rule cannot also be evolved merely to shift the burden of proving justification on the shoulders of the prosecution. In every case of complaint of denial of right to speedy trial, it is primarily for the prosecution to justify and explain the delay. At the same time, it is the duty of the court to weight all the circumstances of a given case before pronouncing upon the complaint. The Supreme Court of USA too has repeatedly refused to fix any such outer time-limit in spite of the

Sixth Amendment. Nor do we think that not fixing any such outer limit in effectuates the guarantee of right to speedy trial. (11). An objection based on denial of right to speedy trial and for relief on that account, should first be addressed to the High Court. Even if the High Court entertains such a plea, ordinarily it should not stay the proceedings, except in a case of grave and exceptional nature. Such proceedings in High Court must, however, be disposed of on a priority basis." 10. During the course of its judgment also the Constitution Bench made certain observations which need to be extracted and reproduced:"But then speedy trial or other expressions conveying the said concept-are necessarily relative in nature. One may ask-speedy means, how speedy? How long a delay is to long? We do not think it is possible to lay down any time schedules for conclusion of criminal proceedings. The nature of offence, the number of accused, the number of witnesses, the workload in the particular court, means of communication and several other circumstances have to be kept in mind". (para 83). ".....it is neither advisable nor feasible to draw or prescribe an outer time-limit for conclusion of all criminal proceedings. It is not necessary to do so for effectuating the right to speedy trial. We are also not satisfied that without such an outer limit, the right becomes illusory". (para 83) ".....even apart from Article 21 courts in this country have been cognizant of undue delays in criminal matters and wherever there was inordinate delay or where the proceedings were pending for too long and any further proceedings were deemed to be oppressive and unwarranted, they were put an end to by making appropriate orders". (para 65) [emphasis supplied] 11. In 1986, "Common Cause"-a Registered Society, espousing public causes, preferred a petition under Article 32 of the Constitution of India seeking certain directions. By a brief order (" Common Cause" A Registered Society through its Director v. Union of India and Ors. -(1996) 4 SCC 32, hereinafter Common Cause (I) , a two-Judge Bench of this Court issued tow sets of directions: one, regarding bail, and the other, regarding quashing of trial. Depending on the quantum of imprisonment provided for several offences under the Indian Penal Code and the period of time which the accused have already spent in jail, the undertrial accused confined in jails were directed to be released on bail or on personal bond subject to such conditions as the Court may deem fit to impose in the light of Section 437 of Cr.P.C. The other set of directions directed the trial in pending cases to be terminated and the accused to be discharged or acquitted depending on the nature of offence by reference to (i) the maximum sentence inflictable whether fine only or imprisonment, and if imprisonment, then the maximum set out in the law, and (ii) the period for which the case has remained pending in the criminal

court. 12. A perusal of the directions made by the Division Bench shows the cases having been divided into two categories: (i) traffic offences, and (ii) cases under IPC or any other law for the time being in force. The Court directed the trial Courts to close such cases on the occurrence of following event and the period of delay:Category (i) : Traffic Offences: The Court directed the cases to be closed and the accused to be discharged on lapse of more than two years on account of non-serving of summons to the accused or for any other reason whatsoever. Category (ii) : Cases under IPC or any other law for the time being in force: The Court directed that in the following sub-categories if the trial has not commenced and the period noted against cash sub-category has elapsed then the case shall be closed and the accused shall be discharged or acquittedNature of the cases ---------------------- Period of delay i.e. trial not commenced for Cases compoundable with the permission of the court ------- More than two years Cases pertaining to offences which are non-cognizable and bailable ------ More than two years Cases in connection with offences punishable with fine only and are not of recurring nature ------------- More than one year Cases punishable with imprisonment up to one year, with or without fine -------More than one year Cases pertaining to offences punishable with imprisonment up to three years with or without fine ------------------- More than two years

The period of pendency was directed to be calculated from the date the accused are summoned to appear in Court. The Division Bench, vide direction 4, specified certain categories of cases to which its directions would not be applicable. Vide direction 5, this court directed the offences covered by direction 4 to be tried on priority basis and observance of this direction being monitored by the High Courts. All the directions were made applicable not only to the cases pending on the day but also to cases which may be instituted thereafter. 13. Abovesaid directions in Common Cause-I were made on May 1, 1996. Not even a period of 6 months had elapsed, on 15.10.1996, Shri Sheo Raj Purohit a public-spirited advocate addressed a Letter Petition to this Court, inviting its attention to certain consequences flowing from the directions made by this Court in Common Cause (I) and which were likely to cause injustice to the serious detriment of the society and could result in encouraging dilatory tactics adopted by the accused. A two-Judge Bench of this court, which was the same as had issued directions in Common Cause (I), made three

directions which had the effect of clarifying/modifying the directions in Common Cause (I) . The first direction clarified that the time spent in criminal proceedings, wholly or partly, attributable to the dilatory tactics or prolonging of trial by action of the accused, or on account of stay of criminal proceedings secured by such accused from higher courts shall be excluded in counting the time-limit regarding pendency of criminal proceedings. Second direction defined the terminus a quo, i.e. what would be the point of commencement of trial while working out 'pendency of trials' in Sessions Court, warrant cases and summons cases. In the third direction, the list of cases, by reference to nature of offence to which directions in Common Cause (I) would not apply, was expanded. 14. In Raj Deo Sharma (I), an accused charged with offences under Sections 5(2) & 5(1)(c) of the Prevention of Corruption Act, 1947 came up to this Court, having failed in High Court, seeking quashing of prosecution against him on the ground of violation of right to speedy trial. Against him the offence was registered in 1982 and chargesheet was submitted in 1985. The accused appeared on 24.4.1987 before the Special Judge. Charges were framed on 4.3.1993. Until 1.6.1995 only 3 out of 40 witnesses were examined. The three-Judge Bench of this Court, which heard the case, set aside the order passed by the High Court and sent the matter back to the Special Judge for passing appropriate orders in the light of its judgment. Vide para 17, the three-Judge Bench issued five further directions purporting to be supplemental to the propositions laid down in A.R. Antulay . The directions need not be reproduced and suffice it to observe that by dividing the offence into two categories - those punishable with imprisonment for a period not exceeding 7 years and those punishable with imprisonment for a period exceeding 7 years, the Court laid down periods of limitation by reference to which either the prosecution evidence shall be closed or the accused shall be released on bail. So far as the trial for offences is concerned, for the purpose of making directions, the Court categorized the offences and the nature and period of delay into two, which may be set out in a tabular form as under:Nature of offence --------------------------------------------Nature and period of delay Offence punishable with imprisonment for a period not exceeding seven years, whether the accused is in jail or not --------------- Completion of two years from the date of recording the plea of the accused prosecution has examined all the witnesses or not within the said period of two years Offence punishable with imprisonment for a period exceeding seven years, whether the accused is in jail or not --------------------- Completion of three years from the date of recording the plea of the accused on the charge framed, whether the prosecution has examined all the witnesses or not within the said period

15. The consequence which would follow on completion of two or three years, as abovesaid, is, the Court directed, that the trial Court shall close the prosecution evidence and can proceed to the next step of trial In respect of the second category, the Court added a rider by way of exception stating-"Unless for very exceptional reasons to be recorded and in the interest of justice, the Court considers it necessary to grant further

time to the prosecution to adduce evidence beyond the aforesaid time limit" (of three years). The period of inability for completing prosecution evidence attributable to conduct of accused in protracting the trial and the period during which trial remained stayed by orders of the court or by operation of law was directed to be excluded from calculating the period at the end of which the prosecution evidence shall be closed. Further, the Court said that the directions made by it shall be in addition to and without prejudice to the directions issued in Common Cause (I) as modified in Common Cause (II) . 16. Raj Deo Sharma (I) came up once again for consideration of this Court in- Raj Deo Sharma v. State of Bihar: 1999 Cri LJ 4541, hereinafter Raj Deo Sharma (II) . This was on an application filed by Central Bureau of Investigation (CBI) for clarification (and also for some modification) in the directions issued. The three-Judge Bench which heard the matter consisted of K.T. Thomas, J. and M. Srinivasan, J. who were also on the Bench issuing directions in Raj Deo Sharma (I) and M.B. Shah, J. who was not on the Bench in Raj Deo Sharma (I). In the submission of CBI the directions of the Court made in Raj Deo Sharma (I) ran counter to A.R. Antulay and did not take into account the time taken by the Court on account of its inability to carry on day to day trial due to pressure of work. The CBI also pleaded for the directions in Raj Deo Sharma (I) being made prospective only, i.e., period prior to the date of directions in Raj Deo Sharma (I) being excluded from consideration. All the three learned Judges wrote separate judgments. K.T. Thomas, J. by his judgment, to avert 'possibility of miscarriage of justice', added a rider to the directions made in Raj Deo Sharma (I) that an additional period of one year can be claimed by the prosecution in respect of prosecutions which were pending on the date of judgment in Raj Deo Sharma (I) and the Court concerned would be free to grant such extension if it considered it necessary in the interest of administration of criminal justice. M. Srinivasan, J. in his separate judgment, assigning his own reasons, expressed concurrence with the opinion expressed and the only clarification ordered to be made by K.T. Thomas, J. and placed on record his express disagreement with the opinion recorded by M.B. Shah, J. 17. M.B. Shah, J. in his dissenting judgment noted the most usual causes for delay in delivery of criminal justice as discernible from several reported cases travelling upto this Court and held that the remedy for the causes of delay in disposal of criminal cases lies in effective steps being taken by the Judiciary, the Legislature and the State Governments, all the three. The dangers behind constructing time-limit barriers by judicial dictum beyond which a criminal trial or proceedings could not proceed, in the opinion of M.B. Shah, J., are (i) it would affect the smooth functioning of the society in accordance with law and finally the Constitution. The victims left without any remedy would resort to taking revenge by unlawful means resulting in further increase in the crime and criminals. People at large in the society would also feel unsafe and insecure and their confidence in the judicial system would be shaken. Law would lose its deterrent effect on criminals; (ii) with the present strength of Judge and infrastructure available with criminal courts it would be almost impossible for the available criminal courts to dispose of the cases within the prescribed time-limit; (iii) prescribing such time-limits may run counter to the law specifically laid down by Constitution Bench in

Antulay's case . In the fore-quoted thinking of M.B. Shah, J. we hear the echo of what Constitution Bench spoke in Kartar Singh v. State of Punjab: 1956 Cri LJ 945 , vide para 351, "No doubt, liberty of a citizen must be zealously safeguarded by the courts; nonetheless the courts while dispensing justice in case like the one under the TADA Act, should keep in mind not only the liberty of the accused but also the interest of the victim and their near and dear and above all the collective interest of the community and the safety of the nation so that the public may not lose faith in the system of judicial administration and indulge in private retribution." 18. At the end M.B. Shah, J. opined that order dated 8.10.1998 made in Raj Deo Sharma (I) requires to be held in abeyance and the State Government and Registrars of the High Courts ought to be directed to come up with specific plans for the setting up of additional courts/special courts (permanent and ad hoc) to cope up with the pending workload on the basis of available figures of pending cases also by taking into consideration the criteria for disposal of criminal cases prescribed by various High Courts. In conclusion, the Court directed the application filed by the CBI to be disposed of in terms of the majority opinion. 19. A perception of the cause for delay at the trial and in conclusion of criminal proceedings is necessary so as to appreciate whether setting up bars of limitation entailing termination of trial or proceedings can be justified. The root cause for delay in dispensation of justice in our country is poor judge-population-ratio. Law Commission of India in its 120th Report on Manpower Planning in Judiciary (July 1987), based on its survey, regretted that in spite of Article 39A added as a major Directive Principle in the Constitution by 42nd Amendment (1976), obliging the State to secure such operation of legal system as promotes justice and to ensure that opportunities for securing justice are not denied to any citizen several reorganisation proposals in the field of administration of justice in India have been basically patch work, ad hoc and unsystematic solutions to the problem. The judge-population-ratio in India (based on 1971 census) was only 10.5 judges per million population while such ratio was 41.6 in Australia, 50.9 in England, 75.2 in Canada and 107 in United States. The law Commission suggested that India required 107 judges per million of Indian population; however to begin with the judge strength needed to be raised to five-fold, i.e., 50 judges per million population in a period of five years but in any case not going beyond ten years. Touch of sad sarcasm is difficult to hide when the Law Commission observed (in it 10th Report, ibid) that adequate reorganisation of the Indian judiciary is at the one and at the same time everybody's concern and, therefore, nobody's concern. There are other factors contributing to the delay at the trial. In A.R. Antulay's case, vide para 83, the Constitution Bench has noted that in spite of having proposed to go on with the trial of a case, five days a week and week after week, it may not be possible to conclude the trial for reasons, viz. (1) non-availability of the counsel, (2) non-availability of the accused, (3) introductory proceedings, and (4) other systemic delays. In addition, the Court noted that in certain cases there may be a large number of witnesses and in some offences, by their very nature, the evidence may be lengthy. In Kartar Singh v. State of Punjab: 1956 Cri LJ 945 another Constitution Bench opined that the delay is dependent on the circumstances of each case because reasons for delay will vary, such as (i) delay in

investigation on account of the widespread ramifications of crimes and its designed network either nationally or internationally, (ii) the deliberate absence of witness or witnesses, (iii) crowded dockets on the file of the court etc. In Raj Deo Sharma (II) , in the dissenting opinion of M.B. Shah, J., the reasons for delay have been summarized as, (1) Dilatory proceedings; (2) Absence of effective steps towards radical simplification and streamlining of criminal procedure; (3) Multitier appalls revision applications and diversion to disposal of interlocutory matters; (4) Heavy dockets; mounting arrears delayed service of process; and (5) Judiciary, starved by executive by neglect of basic necessities and amenities, enabling smooth functioning. 20. Several cases coming to our notice while hearing appeals, petitions and miscellaneous petitions (such as for bail and quashing of proceedings) reveal, apart from inadequate judge strength, other factors contributing to the delay at the trial. Generally speaking, these are: (i) absence of or delay in appointment of, pubic prosecutors proportionate with the number of courts/cases; (ii) absence of or belated service of summons and warrants on the accused/witnesses; (iii) non-production of undertrial prisoners in the Court; (iv) presiding Judge proceeding on leave, though the cases are fixed for trial; (v) strikes by members of Bar; and (vi) counsel engaged by the accused suddenly declining to appear or seeking an adjournment for personal reasons or personal inconvenience. It is common knowledge that appointments of public prosecutors are politicized. By convention, government advocates and public prosecutors were appointed by the executive on the recommendation of or in consultation with the head of judicial administration at the relevant level but gradually the executive has started bypassing the merit based recommendations of, or process of consultation with, District and Sessions, Judges. For non-service of summons/orders and non-production of under trial prisoners, the usual reasons assigned are shortage of police personnel and police people being busy in VIP duties or law and order duties. These can hardly be valid reasons for not making the requisite police personnel available for assisting the Courts in expediting the trial. The members of the Bar shall also have to realize and remind themselves of their professional obligation-legal and ethical, that having accepted a brief for an accused they have no justification to decline or avoid appearing at the trial when the case is taken up for hearing by the Court. All these factors demonstrate that the goal of speedy justice can be achieved by a combined and result-oriented collective thinking and action on the part of the Legislature, the Judiciary, the Executive and representative bodies of members of Bar. 21. Is it at all necessary to have limitation bars terminating trials and proceedings? is there no effective mechanisms available for achieving he same end? The Criminal Procedure Code, as it stands, incorporates a few provisions to which resort can be had for protecting the interest off the accused and saving him from unreasonable prolixity or laxity at the trial amounting to oppression. Section 309, dealing with power to postpone or adjourn proceedings, provides generally fro every inquiry or trial, being proceeded with as expeditiously as possible, and in particular, when the examination of witnesses has once begun, the same to be continued from day to day until all the witnesses in attendance have been examined, unless the Court finds the adjournment of the same beyond the following day to be necessary for reasons to be recorded. Explanation-2 to

Section 309 confers power on the Court to impose costs to be paid by the prosecution or the accused, in appropriate cases, and putting the parties on terms while granting an adjournment or postponing of proceedings. This power to impose costs is rarely exercised by the Courts, Section 258, in Chapter XX of Cr.P.C. on Trial of Summonscases, empowers the Magistrate trying summons cases instituted otherwise than upon complaint, for reasons to be recorded by him, to stop the proceedings at any stage without pronouncing any judgment and where such stoppage of proceedings is made after the evidence of the principal witnesses has been recorded, to pronounce a judgment of acquittal, and in any other case, release the accused, having effect of discharge. This provision is almost never used by the Courts. In appropriate cases, inherent power of the High Court, under Section 482 can be invoked to make such orders, as may be necessary, to give effect to any order under the Code of Criminal Procedure or to prevent abuse of the process of any Court, or otherwise, to secure the ends of justice. The power is wide and, if judiciously and consciously exercised, a can take care of almost all the situations where interference by the High Court becomes necessary on account of delay in proceedings or for any other reason amounting to oppression or harassment in any trial, inquiry or proceedings. In appropriate cases, the High Courts have exercise their jurisdiction under Section 482 of Cr.P.C. for quashing of first information report and investigation, and terminating criminal proceedings if the case of abuse of process of law was clearly made out. Such power can certainly be exercised on a case being made out of breach of fundamental right conferred by Article 21 of the Constitution. The Constitution Bench in A.R. Antulay's case referred to such power, vesting in the High Court (vide paras 62 and 65 of its judgment) and held that it was clear that even apart from Article 21, the Courts can take care of undue or inordinate delays in criminal matters or proceedings if they remain pending for too long and putting to an end, by making appropriate orders, to further proceedings when they are found to be oppressive and unwarranted. 22. Legislation is that source of law which consists in the declaration of legal rules by a competent authority. When judges by judicial decisions lay down a new principle of general application of the nature specifically reserved for legislature they may be said to have legislated, and not merely declared the law. Salmond on Principles of Jurisprudence (12th Edition) goes on to say- "We must distinguish law-making by legislators from law-making by the courts. Legislators can lay down rules purely for the future and without reference to any actual dispute; the courts, insofar as they create law, can do so only in application to the cases before them and only insofar as is necessary for their solution. Judicial law-making is incidental to the solving of legal disputes; legislative law-making is the central function of the legislator' (page 115). It is not difficult to perceive the dividing line between permissible legislation by judicial directives and enacting law-the field exclusively reserved for legislature. We are concerned here to determine whether in prescribing various periods of limitation, adverted to above, the Court transgressed the limit of judicial legislation. 23. Bars of limitation,judicially engrafted, are no doubt, meant to provide a solution to the aforementioned problems. But a solution of this nature gives rise to grater problems like scuttling a trial without adjudication, stultifying access to justice and giving easy

exit from the portals of justice. Such general remedial measures cannot be said to be apt solutions. For two reasons we hold such bars of limitation uncalled for and impermissible; first, because it tantamount to impermissible legislation- an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A.R. Antulay's case and, therefore, run counter to the doctrine of precedents and their binding efficacy. 24. In a monograph "Judicial Activism and Constitutional Democracy in India" commended by Professor Sir William Wade, Q.C. as a "small book devoted to a big subject", the learned author, while recording appreciation of judicial activism, sounds a note of caution-"it is plain that the judiciary is the least competent to function as a legislative or the administrative agency. For one thing, courts lack the facilities to gather detailed data or to make probing enquiries. Reliance on advocates who appear before them for data is likely to give them partisan or inadequate information. On the other hand if courts have to rely on their own knowledge or research it is bound to be selective and subjective. Courts also have no means for effectively supervising and implementing the aftermath of their orders, schemes and mandates, since courts mandate for isolated cases, their decrees make no allowance for the differing and varying situations which administrators will encounter in applying the mandates to other cases. Courts have also no method to reverse their orders if they are found unworkable or requiring modification". Highlighting the difficulties which the courts are likely to encounter if embarking in the fields of legislation or administration, the learned author advises "the Supreme Court could have well left the decision-making to the other branches of government after directing their attention to the problems rather than itself entering the remedial field". 25. The primary function of judiciary is to interpret the law. It may lay down principles, guidelines and exhibit creativity in the field left open and unoccupied by Legislation. Patrick Devlin in 'The Judge' (1979) refers to the role of the Judge as lawmaker and states that there is no doubt that historically judges did not make law, at least in the sense of formulating it. Even now when they are against innovation, they have never formally abrogated their powers; their attitude is; "We could if we would but we think it better not'. But as a matter of history did the English judges of the golden age make law? They decided case which worked up into principles. The judges, as Lord Wright once put it in an unexpectedly picturesque phrase, proceeded 'from case to case, like the ancient Mediterranean mariners, hugging the coast from point and avoiding the dangers of the open sea of system and science. The golden are judges were not rationalisers and, except in the devising of procedures, they were not innovators. They did not design a new machine capable of speeding ahead; they struggled with the aid of fictions and bits of procedural string to keep the machine on the road. 26. Professor S.P. Sathe, in his recent work (Year 2002) "Judicial Activism in IndiaTransgressing Borders and Enforcing Limits", touches the topic "Directions: A New Form of Judicial Legislation". Evaluating legitimacy of judicial activism, the learned author has cautioned against Court "legislating" exactly in the way in which a

Legislature legislates and he observes by reference to a few case that the guidelines laid down by court, at times, cross the border of judicial law making in the realist sense and trench upon legislating like a Legislature. "Directions are either issued to fill in the gaps in the legislation or to provide for matters that have not been provided by any legislation. The Court has taken over the legislative function not in the traditional interstitial sense but in an overt manner and has justified it as being an essential component of its role as a constitutional court." (p.242). "In a strict sense these are instances of judicial excessive that fly in the face of the doctrine of separation of powers. T he doctrine of separation of powers envisages that the legislature should make law, the executive should execute it, and the judiciary should settle disputes in accordance with the existing law. In reality such watertight separation exists nowhere and is impracticable. Broadly, it means that one organ of the State should not perform a function that essentially belongs to another organ. While law-making through interpretation and expansion of the meanings of open-textured expressions such as 'due process of law', 'equal protection of law,' of 'freedom of speech and expression' is a legitimate judicial function, the making of an entirely new law.. thought directions.... is not legitimate judicial function." (p.220). 27. Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32 21 141 and 142 of the Constitution. The dividing line in fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. Binding directions can be issued for enforcing the law and appropriate directions may issue, including laying down of time limits or chalking out a calendar for proceedings to follow, to redeem the injustice done or for taking care of rights violated,in a given case or set of cases, depending on facts brought to the notice of Court. This is permissible for judiciary to do. But it may not, like legislature, enact a provision akin to or on the liens of Chapter XXXVI of the Code of Criminal Procedure, 1973. 28. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (II) and Raj Deo Sharma (II) cannot be sustained is that these decisions though two or three-judge Bench decisions run counter to that extent to the dictum of Constitution Bench in A.R. Antulay's case and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well settled principle of precedents which has crystalised into a rule of law is that a bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict therefore. We have in the earlier part of this judgment extracted and reproduced passages from A.R. Antulay's case. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down time-limits as bar beyond which a criminal proceedings or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially

feasible) to fix and time-limit for trial of offences. Having placed on record the exposition of law as to right to speedy trial flowing from Article 21 of the Constitution this Court held that it was necessary to leave the rule as elastic and not to fix it in the frame of defined and rigid rules. It must be left to the judicious discretion of the court seized of an individual case to find out from the totality of circumstances of a given case if the quantum of time consumed upto a given point of time amounted to violation of Article 21, and if so, then to terminate the particular proceedings, and if not, then to proceed ahead. The test is whether the proceedings or trial has remained pending for such a length of time that he inordinate delay can legitimately be called oppressive and unwarranted, as suggested in A.R. Antulay. In Kartar Singh's cases (supra) the Constitution Bench while recognising the principle that the denial of an accused' right of speedy trial may result, in a decision to dismiss the indictment or in reversing of a conviction, went on to state, "Of course, no length of time is per se too long pass scrutiny under this principle nor the accused is called upon to show the actual prejudice by delay of disposal of cases. On the other hand, the court has to adopt a balancing approach by taking note of the possible prejudices and disadvantages to be suffered by he accused by avoidable delay and to determine whether the accused in a criminal proceedings has been deprived of his right of having speedy trial with unreasonable delay which could be identified by the factors-(1) length of delay, (2) the justification for the delay, (3) the accused's assertion of his right to speedy trial, and (4) prejudice caused to the accused the such delay." (para 92). 29. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II) , the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceedings cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:(1) The dictum in A.R. Antulays' case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulays' case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe can outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal proceedings merely on account of lapse of time, as prescribed by the directions made uncommon Cause Case (I), Raj Deo Sharma case (I) and (II) . At the most the periods

of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decided whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise t heir available powers. such as those under Sections 309 311 and 258, of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions. (6) This is an appropriate occasion to remind the Union of India and the State Governments of their constitutional obligation to strengthen the judiciary-quantitatively and qualitatively-by providing requisite funds, manpower and infrastructure. We hope and trust that the Governments shall act. We answer the questions posed in the orders of reference dated September 19, 2000 and April 26, 2001 in the abovesaid terms. 30. The appeals are allowed. The impugned judgments of the High Court are set aside. As the High Court not have condoned the delay in filing of he appeals and then allowed the appeals without noticing the respective accused-respondents before the High Court, now the High Court shall hear and decide the appeals afresh after noticing the accusedrespondent before it in each of the appeals and consistently with he principles of law laid down hereinabove. Before we may part, we would like to make certain observations ex abundanti cautela: 31. Firstly, we have dealt with the directions made by this Court in Common Cause Case I and II and Raj Deo Sharma Case I and II regarding trial of cases. The directions made in those cases regarding enlargement of accused persons on bail are not subject mater of this reference or these appeals and we have consciously abstained from dealing with legality, propriety or otherwise of directions in regard to bail. This is because different considerations arise before the criminal courts while dealing with termination of a trial or proceedings and while dealing with right of accused to be enlarged on bail. 32. Secondly, though we are deleting the directions made respectively by two and threeJudge Benches of this Court in the cases under reference, for reasons which we have already stated, we should not, even for a moment, be considered as having made a departure from the law as to speedy trial and speedy conclusion of criminal proceedings

of whatever nature and at whichever stage before any authority or the court. It is the constitutional obligation of the State to dispense speedy justice, more so in the field of criminal law, and paucity of funds or resources is no defence to denial of right to justice emanating from Articles 21 19 and 14 and the Preamble of the Constitution as also from the Directive Principles of State Policy. It is high time that the Union of India and the various States realize their constitutional obligation and do something concrete in the direction of strengthening the justice delivery system. We need to remind all concerned of what was said by this Court in Hussainara Khatoon (IV) - : 1979 Cri LJ 1045: 1979 Cri LJ 1045, "The State cannot be permitted to deny the constitutional right of speedy trial to the accuse don the ground that the State has no adequate financial resources to incur the necessary expenditure needed for improving the administrate and judicial apparatus with a view to ensuring speedy trial. The State may have its financial constraints and is priorities ion expenditure, but, the law does not permit any government to deprive its citizens of constitutional rights on a plea of poverty's, or administrative inability." 33. Thirdly, we are deleting the bars of limitation on the twin grounds that it amounts to judicial legislation, which is not permissible, and because they run counter to the doctrine of binding precedents. The larger question of powers of the court to pass orders and issue directions in public interest or in social action litigations, specially by reference to Articles 32 141 142 and 144 of the Constitution, is not subject matter of reference before us and this judgment should not be read as an interpretation of those Articles of the Constitution and laying down, defining or limiting the scope of the powers exercisable thereunder by this Court. 34. And lastly, it is clarified that this decision shall not be a ground for re-opening a case or proceedings by setting aside any such acquittal or discharge as is based on the authority of ' Common Cause' and ' Raj Deo Sharma' cases and which has already achieved finality and re-open the trial against the accused therein. Raju, J. 35. I have had the privilege of going through the judgment of esteemed and learned brother R.C. Lahoti, J., while I am in respectful agreement that the appeals are to be allowed and remitted to the High Court to be heard and decided afresh, I feel compelled to express my reservation and inability to subscribe to some of the observations contained therein relating to the powers and jurisdiction of this Court. 36. The declaration of law made by the Constitution Bench of five learned Judges of this Court in the decision reported in A.R. Antulay's case: 1992 Cri LJ 2717 still holds the field and its binding force and authority has not been undermined or whittled down or altered in any manner by another decision of a larger Bench. Consequently, the Benches of lesser number of Constitution of Judges which dealt with the cases reported in " Common Cause" a Regd. Society through its Director v. Union of India and Ors. : 1996 Cri LJ 2380 "Common Cause" A Regd. Society through its Director v. Union of India and Ors. [(1996) 6 SCC 775]; Raj Deo Sharma v. State of Bihar: 1998 Cri LJ

4596: and Raj Deo Sharma (II) v. State of Bihar : 1999 Cri LJ 4541 could not have laid down any principles in derogation of the ratio laid down in A.R. Antulay's case (supra) either by way of elaboration, expansion, clarification or in the process of trying to distinguish the same with reference to either the nature of causes considered therein or the consequences which are likely to follow and which, in their view, deserve to be averted. Even where necessities or justification, if any, were found thereof, there could not have been scope for such liberties being taken to transgress the doctrine of binding precedents, which has come to stay firmly in our method of Administration of Justice and what is permissible even under such circumstances being only to have had the matter referred to for reconsideration by a larger Bench of this Court and not to deviate by no other means. The solitary reason would suffice by itself to overrule the above decisions, the correctness of which stand referred to for consideration by this Bench. All the more so when, there is no reason to doubt the correctness of the decision in A.R. Antulay's case (supra) and this Bench concurs with the principles laid down therein. 37. Though this Court does not consider itself to be an Imperium in Imperio or would function as a despotic branch of 'The State', the fact that the founding fathers of our Constitution designedly and deliberately, perhaps, did not envisage the imposition of any jurisdiction embargo on this Court, except in Article 363 of the Constitution of India is significant and sufficient enough, in my view, to identify the depth and width or extent of this powers. The other fetters devised or perceived on its exercise of powers or jurisdiction to entertain/deal with a matter were merely self-imposed for one or the other reason assigned therefore and they could not stand in the way of or deter this Court in any manner from rising up to respond in a given situation as and when necessitated and effectively play its role in accommodating the Constitution to changing circumstances and enduring values as a 'Sentinel on the qui vive' to preserve and safeguard the Constitution, prefect and enforce the fundamental rights and other constitutional mandates - which constitute the inviolable rights of the people as well as those features, which formed its basic structure too and considered to be even beyond the reach of any subsequent constitutional amendment. In substance, this Court, in my view, is the ultimate repository of all judicial powers at National level by virtue of it being the Summit Court at the pyramidal height of Administration of Justice in the country and as the upholder and final interpreter of the Constitution of India and defender of the fundamentals of 'Rule of Law'. 38. It is not only difficult but impossible to foresee and enumerate all possible situations arising, to provide in advance solutions with any hard and fast rules of universal application for all times to come. It is well known that where there is right, there should be a remedy. In what exceptional cases, not normally visualized or anticipated by law, what type of an extra-ordinary remedy must be devised or designed to solve the issue arising would invariably depend upon the gravity of the situation, nature of violation and efficacy as well as utility of the existing machinery and the imperative need or necessity to find a solution even outside the ordinary framework or avenue or remedies to avert any resultant damage beyond repair or redemption, to any person. Apparently, in my view, alive to such possibilities only even this Court in A.R. Antulay's case (supra) has chosen to decline the request for fixation of any period of time limit for trial of offences

not on any total want or lack of jurisdiction in this Court, but for the reason that it is "neither advisable nor practicable" to fix any such time limit and that the non-fixation does not ineffectuate the guarantee of right to speedy trial. The prospects and scope to achieve the desired object of a speedy trial even within the available procedural safeguards and avenues provided for obtaining relief, have also been indicated in the said decision as well as in the judgment prepared by learned brother R.C. Lahoti, J. I am of the firm opinion that this Court should never venture to disown its own jurisdiction on any area or in respect of any matter or over any one authority or person, when the Constitution is found to be at stake and the Fundamental Rights of citizens/persons are under fire, to restore them to their position and uphold the Constitution and the Rule of Law-for which this Court has been established and constituted with due primacy and necessary powers authority and jurisdiction, both express and implied. 39. Except dissociating myself from certain observations made expressing doubts about the jurisdiction of this Court, for the reasons stated above, I am in entire agreement with the other reasons and conclusions in the judgment. In Criminal Appeal No. 535/2000 the appellant was working as an Electrical Superintendent in the Mangalore City Corporation. For the check period 1.5.1961 to 25.8.1987 he was found to have amassed assets disproportionate to his known sources of income. Charge-sheet accusing him of offences under Section 13(1)(e) read with Section 13(2) of the Prevention of Corruption Act, 1988 was filed on 15.31994. Accused appeared before the Special Court and was enlarged on bail on 6.6.1994. Charges were framed on 10.8.1994 and the case proceeded for trial on 8.11.1994. However, the trial did not commence. On 23.2.1999 the learned Special Judge who was seized of the trial directed the accused to be acquitted as the trial had not commenced till then and the period of two years had elapsed which obliged him to acquit the accused in terms of the directions of this court in Raj Deo Sharma v. State of Bihar: 1998 Cri LJ 4596 (hereinafter, Raj Deo Sharma-I). The State of Karnataka through the D.S.P. Lokayukta, Mangalore preferred an appeal before the high Court putting in issue the acquittal of the accused. The learned Single Judge of the High Court, vide the impugned order, allowed the appeal, set aside the order of acquittal and remanded the case to the Trial Court, forming an opinion that a case charging an accused with corruption was an exception to the directions made in Raj Deo Sharma-I as clarified by this Court in Raj Deo Sharma (II) v. State of Bihar: 1999 Cri LJ 4541. Strangely enough the High Court not only condoned a delay of 55 days in filing the appeal against acquittal by the State but also allowed the appeal itself-both without even issuing notice to the accused. The aggrieved accused has filed this appeal by special leave. Similar are the facts in all the other appeals. Shorn of details, suffice it to say that in all the appeals the accused persons who were facing corruption charges, were acquitted by the Special Courts for failure of commencement of trial in spite of lapse of two years from the date of framing of the charges and all the State appeals were allowed by the High Court without noticing the respective accused persons. Bars of limitation, judicially engrafted, are no doubt, meant to provide a solution to the aforementioned problems. But a solution of this nature gives rise to grater problems like

scuttling a trial without adjudication, stultifying access to justice and giving easy exit from the portals of justice. Such general remedial measures cannot be said to be apt solutions. For two reasons we hold such bars of limitation uncalled for and impermissible; first, because it tantamount to impermissible legislation- an activity beyond the power which the Constitution confers on judiciary, and secondly, because such bars of limitation fly in the face of law laid down by Constitution Bench in A.R. Antulay's case and, therefore, run counter to the doctrine of precedents and their binding efficacy. Prescribing periods of limitation at the end of which the trial court would be obliged to terminate the proceedings and necessarily acquit or discharge the accused, and further, making such directions applicable to all the cases in the present and for the future amounts to legislation, which, in our opinion, cannot be done by judicial directives and within the arena of the judicial law-making power available to constitutional courts, howsoever liberally we may interpret Articles 32 21 141 and 142 of the Constitution. The dividing line in fine but perceptible. Courts can declare the law, they can interpret the law, they can remove obvious lacunae and fill the gaps but they cannot entrench upon in the field of legislation properly meant for the legislature. The other reason why the bars of limitation enacted in Common Cause (I), Common Cause (II) and Raj Deo Sharma (II) and Raj Deo Sharma (II) cannot be sustained is that these decisions though two or three-judge Bench decisions run counter to that extent to the dictum of Constitution Bench in A.R. Antulay's case and therefore cannot be said to be good law to the extent they are in breach of the doctrine of precedents. The well settled principle of precedents which has crystalised into a rule of law is that a bench of lesser strength is bound by the view expressed by a bench of larger strength and cannot take a view in departure or in conflict therefore. We have in the earlier part of this judgment extracted and reproduced passages from A.R. Antulay's case. The Constitution Bench turned down the fervent plea of proponents of right to speedy trial for laying down timelimits as bar beyond which a criminal proceedings or trial shall not proceed and expressly ruled that it was neither advisable nor practicable (and hence not judicially feasible) to fix and time-limit for trial of offences. For all the foregoing reasons, we are of the opinion that in Common Cause case (I) (as modified in Common Cause (II) and Raj Deo Sharma (I) and (II), the Court could not have prescribed periods of limitation beyond which the trial of a criminal case or a criminal proceedings cannot continue and must mandatorily be closed followed by an order acquitting or discharging the accused. In conclusion we hold:- (1) The dictum in A.R. Antulays' case is correct and still holds the field. (2) The propositions emerging from Article 21 of the Constitution and expounding the right to speedy trial laid down as guidelines in A.R. Antulays' case, adequately take care of right to speedy trial. We uphold and re-affirm the said propositions. (3) The guidelines laid down in A.R. Antulay's case are not exhaustive but only illustrative. They are not intended to operate as hard and fast rules or to be applied like a strait-jacket formula. Their applicability would depend on the fact-situation of each case. It is difficult to foresee all situations and no generalization can be made. (4) It is neither advisable, nor feasible, nor judicially permissible to draw or prescribe can outer limit for conclusion of all criminal proceedings. The time-limits or bars of limitation prescribed in the several directions made in Common Cause (I), Raj Deo Sharma (I) and Raj Deo Sharma (II) could not have been so prescribed or drawn and are not good law. The criminal courts are not obliged to terminate trial or criminal

proceedings merely on account of lapse of time, as prescribed by the directions made uncommon Cause Case (I), Raj Deo Sharma case (I) and (II). At the most the periods of time prescribed in those decisions can be taken by the courts seized of the trial or proceedings to act as reminders when they may be persuaded to apply their judicial mind to the facts and circumstances of the case before them and determine by taking into consideration the several relevant factors as pointed out in A.R. Antulay's case and decided whether the trial or proceedings have become so inordinately delayed as to be called oppressive and unwarranted. Such time-limits cannot and will not by themselves be treated by any Court as a bar to further continuance of the trial or proceedings and as mandatorily obliging the court to terminate the same and acquit or discharge the accused. (5) The Criminal Courts should exercise their available powers, such as those under Sections 309 311 and 258, of Code of Criminal Procedure to effectuate the right to speedy trial. A watchful and diligent trial judge can prove to be better protector of such right than any guidelines. In appropriate cases jurisdiction of High Court under Section 482 of Cr.P.C. and Articles 226 and 227 of Constitution can be invoked seeking appropriate relief or suitable directions.

MANU/SC/0182/2002 Equivalent Citation: AIR 2002 SC 1334, 2002 (2) SCALE 580, (2002) 3 SCC 533, [2002] 2 SCR 383 IN THE SUPREME COURT OF INDIA Decided On: 13.03.2002 Appellants: Padmasundara Rao and Ors. Vs. Respondent: State of Tamil Nadu and Ors. Hon'ble Judges: S. P. Bharucha, C.J., R. C. Lahoti, N. Santosh Hedge, Ruma Pal and Dr. Arijit Pasayat, JJ. JUDGMENT Arijit Pasayat, J. 1. Noticing cleavage in views expressed in several decisions rendered by Benches of three learned Judges, two learned Judges referred the matter to a Bench of three Judges, and by order dated 30.10.2001 the matter was directed to be placed before a Constitution Bench, and that is how the matter is before us in C.A. No. 2226/1997. Special Leave petition (SIC) No. 12806/2000 was directed to be heard along with Civil Appeal. 2. Leave granted in SLP (SIC) No. 12806/2000. 3. The controversy involved lies within a very narrow compass, that is whether after

quashing of Notification under Section 6 of the Land Acquisition Act, 1894 (hereinafter referred to as the 'Act') fresh period of one year is available to the State Government to issue another Notification under Section 6. In the case at hand such a Notification issued under Section 6 was questioned before the Madras High Court which relied on the decision of a three-Judge Bench in N. Narasimhaiah and Ors. v. State of Karnataka and Ors. etc.: [1996] 1 SCR 698 and held that the same was validly issued. 4. Learned counsel for the appellants placed reliance on an un-reported decision of this Court in A.S. Naidu and Ors. etc. v. State of Tamil Nadu and Ors. etc. (SLP (C) Nos. 11353-11355/1988), wherein a Bench of three Judges held that once a declaration under Section 6 of the Act has been quashed, fresh declaration under Section 6 of the Act has been prescribed period of the Notification under Sub-section (1) of Section 4 of the Act. It has to be noted that there is another judgment of two learned Judges in Oxford English School v. Government of Tamil Nadu and Ors.: AIR 1995 SC 2398 which takes a view similar to that expressed in A.S. Naidu's case (supra). However, in State of Karnataka and Ors. v. D.C. Nanjudaiah and Ors.: (1996) 10 SCC 619 , view in Narasimhaiah's case (supra) was followed and it was held that the limitation of 3 years for publication of declaration would start running from the date of receipt of the order of the High Court and not from the date on which the original publication under Section 4(1) came to be made. 5. Learned counsel for the appellant submitted that a bare reading of Section 6 of the Act as amended by Act 68 of 1984, leaves no manner of doubt that the declaration under Section 6 has to be issued within the specified time and merely because the Court has quashed the concerned declaration an extended time period is not to be provided. Explanation 1 (appended to the Section) specifically deals with exclusion of periods in certain specified cases. If the view expressed in Narasimhaiah's case (supra) is accepted, it would mean reading something into the statute which is not there, and in effect would mean legislation by the Court whereas it is within the absolute domain of the legislature Per contra, learned counsel appearing for the State of Tamil Nadu submitted that the logic indicated in Narasimhaiah's case (supra) is in line with the statutory intent. Placing reliance on the decision in Director of Inspection of Income Tax (Investigation( New Delhi and Anr. v. Pooran Mal and Sons and Anr.: [1974] 96 ITR 390 (SC) , it was submitted that extension of the time limit is permissible. Apart from Pooranmal's case (supra), reliance was placed on two decisions rendered in relation to proceedings under the Income Tax Act, 1961 (in short the 'IT Act'), to contend that there is scope for extension of time though there was fixed statutory time prescription. The decisions relied on are Commissioner of Income Tax, Central Calcutta v. National Taj Traders: [1980] 121 ITR 535 (SC) and Grindlays Bank Ltd. v. Income Tax Officer, Calcutta and Ors. : [1980] 122 ITR 55 (SC). It was, however, frankly conceded that in Grindlay's case (supra), question of limitation was not necessary to be gone into as the impugned action was taken within the prescribed time limit. It was contended that at the most, this can be considered to be a case of casus omissus, and the deficiency, if any, can be filled up by purposive interpretation, by reading the statute as a whole, and finding out the true legislative intent. Strong reliance was placed on a Full Bench decision of Madras High Court in K. Chinnathambi Gounder and Anr. v. Government of Tamil Nadu and Anr.

AIR 1980 Mad 251 to contend that the view in the said case has held the field since long and the principles of stare decisis are applicable. Residually, if was submitted that many acquisitions have become final and if the matters are directed to be reopened, in case a different view is taken, it would cause hardship. 6. Section 6(1) of the Act so far as relevant reads as follows: "Declaration that land is required for a public purpose:- Subject to the provisions of Part VII of this Act, when the Appropriate Government is satisfied after considering the report, if any, made under Section 5A, Sub-section (2), that any particular land is needed for a public purpose, or for a company, a declaration shall be made to that effect under the signature of a Secretary to such Government or of some officer duly authorized to certify its orders and different declarations may be made from time to time in respect of different parcels of any land covered by the same notification under Section 4, Subsection (1), irrespective of whether one report or different reports has or have been made (wherever required) under Section 5A, Sub-section (2): Provided that no declaration in respect of any particular land covered by a notification under Section 4, Sub-section (1)(i) published after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967, but before the commencement of the Land Acquisition (Amendment) Act, 1984 shall be made after the expiry of three years from the date of the publication of the notification; or (ii) published after the commencement of the Land Acquisition (Amendment) Act, 1984, shall be made after the expiry of one year from the date of the publication of the notification: Provided further that no such declaration shall be made unless the compensation to be awarded for such property is to be paid by a company, or wholly or partly out of public revenues or some fund controlled or managed by a local authority. [Explanation 1.- In computing any of the periods referred to in the first proviso, the period during which any action or proceeding to be taken in pursuance of the notification issued under Section 4, Sub-section (1), is stayed by an order of a Court shall be excluded." 7. As the factual scenario shows, in the case at hand the Notification under Section 4(1) of the Act was issued and the declaration was made prior to the substitution of the existing proviso to Section 6(1) by Act 68 of 1984 with effect from 24.8.1984. In other words, the Notification under Section 4(1) was issued before the commencement of Land Acquisition (Amendment) Act 1984, but after the commencement of the Land Acquisition (Amendment and Validation) Ordinance, 1967 (replaced by Land Acquisition (Amendment and Validation) Act 1967 (Act 13 of 1967). But the substituted proviso was in operation on the date of the impugned judgment. In terms of the proviso,

the declaration cannot be made under Section 6 in respect of any land covered by the Notification under Section 4(1) of the Act after the expiry of three years or one year from the date of its publication, as the case may be. The proviso deals with two types of situations. It provides for different periods of limitation depending upon the question whether (i) the notification under Section 4(1) was published prior to commencement of Land Acquisition (Amendment and Validation) Ordinance, 1967, but before commencement of Land Acquisition (Amendment) Act, 1984, or (ii) such notification was issued after Land Acquisition (Amendment) Act, 1984. In the former case, the period is three years whereas in the latter case it is one year. Undoubtedly, the Notification under Section 6(1) was made and published in the official gazette within the period of three years prescribed under the proviso thereto, and undisputedly, the same had been quashed by the High Court in an earlier proceeding. It has to be noted that Explanation 1 appended to Section 6(1) provides that in computing the period of three years, the period during which any action or proceeding to be taken in pursuance of the Notification under Section 4(1), is stayed by an order of the Court, shall be excluded. Under Tamil Nadu Act 41 of 1980, w.e.f. 20.1.1967, the expression used in "action or proceeding.....is held up on account of stay or injunction", which is contextually similar. 8. Learned counsel for the respondents referred to some observations in Pooranmal's case (supra), which form the foundation for decisions relied upon by him. It has to be noted that Pooranmal's case (supra) was decided on entirely different factual and legal background. The Court noticed that assessee who wanted the Court to strike down the action of the Revenue Authorities on the ground of limitation had himself conceded to the passing of an order by the authorities. The Court, therefore, held that the assessee cannot take undue advantage of his own action. Additionally, it was noticed' that the time limit was to be reckoned with reference to the period prescribed in respect of Section 132(5) of the IT Act. It was noticed that once the order has been made under Section 132(5) within ninety days, the aggrieved person has got the right to approach the notified authority under Section 132(11) within thirty days and that authority can direct the Income-Tax Officer to pass a fresh order. That is the distinctive feature vis-a-vis Section 6 of the Act. The Court applied the principle of waiver and inter alia held that the period of limitation prescribed therein was one intended for the benefit of the person whose property has been seized and it was open to that person to waive that benefit. It was further observed that if the specified period is held to be mandatory, it would cause more injury to the citizens than to the Revenue. A distinction was made with statutes providing periods of limitation for assessment. It was noticed that Section 132 does not deal with taxation of income. Considered in that background, ratio of the decision in Pooranmal's case (supra) has no application to the case at hand. 9. Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision on which reliance is placed. There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case, said Lord Morris in Herrington v. British Railways Board (1972) 2 WLR 537. Circumstantial flexibility, one additional or

different fact may make a world of difference between conclusions in two cases. 10. What appears to have weighed with the three-Judge Bench in Narasimhaiah's case (supra) is set out in paragraph 12 of the judgment, which reads as under: "Having considered the respective contentions, we are of the considered view that if the construction as put up by the learned counsel for the appellants is given acceptance i.e., it should be within one year from the last of the dates of publication under Section 4(1), the public purpose would always be frustrated. It may be illustrated thus: In a given case where the notification under Section 4(1) was published, dispensing with the enquiry under Section 5A and declaration was published within one month and as the urgency in the opinion of the Government was such that it did not brook the delay of 30 days and immediate possession was necessary, but possession was not taken due to dilatory tactics of the interested person and the court ultimately finds after two years that the exercise of urgency power was not warranted and so it was neither valid nor proper and directed the Government to give an opportunity to the interested person and the State to conduct an enquiry under Section 5A, then the exercise of the power pursuant to the direction of the court will be fruitless as it would take time to conduct the enquiry. If the enquiry is dragged for obvious reasons, declaration under Section 6(1) cannot be published within the limitation from the original date of the publication of the notification under Section 4(1). A valid notification under Section 4(1) becomes invalid. On the other hand, after conducting enquiry as per court order and, if the declaration under Section 6 is published within one year from the date of the receipt of the order passed by the High Court, the notification under Section 4(1) becomes valid since the action was done pursuant to the orders of the court and compliance with the limitation prescribed in Clauses (i) and (ii) of the first proviso to Sub-section (1) of the Act would be made." 11. It may be pointed out that the stipulation regarding the urgency in terms of Section 5A of the Act has no role to play when the period of limitation under Section 6 is reckoned. The purpose for providing the period of limitation seems to be avoidance of inconvenience to a person whose land is sought to be acquired. Compensation gets pegged from the date of Notification under Section 4(1). Section 11 provides that the valuation of the land has to be done on the date of publication of Notification under Section 4(1). Section 23 deals with matters to be considered in determining the compensation. It provides that the market value of the land is to be fixed with reference to the date of publication of the Notification under Section 4(1) of the Act. The prescription of time limit in that background is, therefore, peremptory in nature. In Ram Chand and Ors. v. Union of India and Ors.: (1994)1 SCC 44 , it was held by this Court that though no period was prescribed, action within a reasonable time was warranted. The said case related to a dispute which arose before prescription of specific periods. After the quashing of declaration, the same became non-est and was effected. It is fairly conceded by learned counsel for the respondents that there is no bar on issuing a fresh declaration after following the due procedure. It is, however, contended that in case a fresh notification is to be issued, the market value has to be determined on the basis of the fresh Notification under Section 4(1) of the Act and it may be a costly affair for the State. Even if it is so, the interest of the person whose land is sought to be acquired,

cannot be lost sight of. He is to be compensated for acquisition of his land. If the acquisition sought to be made is done in an illogical, illegal or irregular manner, he cannot be made to suffer on that count. 12. The rival pleas regarding re-writing of statute and casus omissus need careful consideration. It is well settled principle in law that the Court cannot read anything into a statutory provision which is plain and unambiguous. A statute is an edict of the legislature. The language employed in a statute is the determinative factor of legislative intent. The first and primary rule of construction is that the intention of the Legislation must be found in the words used by the Legislature itself. The question is not what may be supposed and has been intended but what has been said. "Statutes should be construed not as theorems of Euclid". Judge Learned Hand said, "but words must be construed with some imagination of the purposes which lie behind them". (See Lenigh Valley Coal Co. v. Yensavage 218 FR 547). The view was re-iterated in Union of India and Ors. v. Filip Tiago De Gama of Vedem Vasco De Gama: (1990) 1 SCC 277 . 13. In Dr. R. Venkatchalam and Ors. etc. v. Dv. Transport Commissioner and Ors. etc.: [1977] 2 SCR 392 it was observed that Courts must avoid the danger of apriority determination of the meaning of a provision based on their own pre-conceived notions of ideological structure or scheme into which the provision to be interpreted is somewhat fitted. They are not entitled to usurp legislative function under the disguise of interpretation. 14. While interpreting a provision the Court only interprets the law and cannot legislate it. If a provision of law is misused and subjected to the abuse of process of law, it is for the legislature to amend, modify or repeal it, if deemed necessary. [See Rishabh Agro Industries Ltd. v. P.N.B Capital Services Ltd.: (2000) 5 SCC 515]. The legislative casus omissus cannot be supplied by judicial interpretative process. Language of Section 6(1) is plain and unambiguous. There is no scope for reading something into it, as was done in Narasimhaiah's case (supra). In Nanjudaiah's case (supra), the period was further stretched to have the time period run from date of service of High Court's order. Such a view cannot reconciled with the language of Section 6(1). If the view is accepted it would mean that a case can be covered by not only Clauses (i) and/or (ii) of the proviso to Section 6(1), but also by a non-prescribed period. Same can never be the legislative intent. 15. Two principles of construction - one relating to casus omissus and the other in regard to reading the statute as a whole - appear to be well settled. Under the first principle a casus omissus cannot be supplied by the Court except in the case of clear necessity and when reason for it is found in the four corners of the statute itself but at the same time a casus omissus should not be readily inferred and for that purpose all the parts of a statute or section must be construed together and every clause of a section should be construed with reference to the context and other clauses thereof so that the construction to be put on a particular provision makes a consistent enactment of the whole statute. This would be more so if literal construction of a particular clause leads to manifestly absurd or anomalous results which could not have been intended by the Legislature. "An intention

to produce an unreasonable result", said Danckwerts, L.J., in Artemiou v. Procopiou (1966 1 QB 878), "is not to be imputed to a statute if there is some other construction available". Where to apply words literally would "defeat the obvious intention of the legislation and produce a wholly unreasonable result" we must "do some violence to the words" and so achieve that obvious intention and produce a rational construction. [Per Lord Reid in Luke v. I.R.C. 1966 AC 557 where at p. 577 he also observed: "this is not a new problem, though our standard of drafting is such that it rarely emerges".] 16. The plea relating to applicability of the stare decisis principles is clearly unacceptable. The decision in K. Chinnathambi Gounder (supra) was rendered on 22.6.1979 i.e. much prior to the amendment by 1984 Act. If the Legislature intended to give a new lease of life in those cases where the declaration under Section 6 is quashed, there is no reason why it could not have done so by specifically providing for it. The fact that legislature specifically provided for periods covered by orders of stay or injunction clearly shows that no other period was intended to be excluded and that there is no scope for providing any other period of limitation. The maxim 'actus curia neminem gravibit' highlighted by the Full Bench of the Madras High Court has no application to the fact situation of this case. 17. The view expressed in Narasimhaiah's case (supra) and Nanjudaiah's case (supra), is not correct and is over-ruled while that expressed in A.S. Naidu's case (supra) and Oxford's case (supra) is affirmed. 18. There is, however, substance in the plea that those matters which have obtained finality should not be re-opened. The present judgment shall operate prospectively to the extent that cases where awards have been made and the compensations have been paid, shall not be reopened, by applying the ratio of the present judgment. The appeals are accordingly disposed of and the subsequent Notifications containing declaration under Section 6 of the Act are quashed.

MANU/SC/4463/2007 Equivalent Citation: 2007 (14) SCALE 1, [2007] 12 SCR 1084 IN THE SUPREME COURT OF INDIA Civil Appeal No. 5732 of 2007 (Arising out of S.L.P(C) No. 3358 of 2007) Decided On: 06.12.2007 Appellants: Divisional Manager, Aravali Golf Club and Anr. Vs. Respondent: Chander Hass and Anr.

Hon'ble Judges: A. K. Mathur and Markandey Katju , JJ. Prior History: From the final Judgment and Order dated 17.2.2006 of the High Court of Punjab and Haryana at Chandigarh in R.S.A. No. 666 of 2006 ORDER A.K. Mathur and Markandey Katju, JJ. 1. Heard learned Counsel for the parties. 2. Leave granted. 3. This appeal by special leave is directed against the judgment and order dated 17 th February, 2006 passed by a learned Single Judge of the High Court of Punjab and Haryana in R.S.A. No.666/2006 whereby the learned Single Judge has affirmed the judgment and decree passed by the First Appellate Court. 4. The brief facts which are necessary for the disposal of the present appeal are that the plaintiffs (respondents in this appeal) were appointed as Mali (gardener) in the service of the defendant-appellant, which is a golf club run by the Haryana Tourism Corporation in the year 1989 and 1988 respectively on daily wages. Subsequently in the year 1989 they were told to perform the duties of Tractor Drivers, though there was no post of tractor driver in the employer's establishment. However for a number of years they continued to be paid wages for the post of Mali. 5. Thereafter on a recommendation made by the Head Office, the appellants started paying them wages of tractor driver on daily wage basis, as per rates recommended by the Deputy Commissioner. Though they continued to work for about a decade as tractor drivers, their services were regularized against the post of Mali in the year 1999 and not as tractor driver. When despite representations their grievance was not redressed, the respondents herein filed civil suit in the month of April, 2001 claiming regularization against the posts of tractor driver. Their claim was rejected by the Trial Court which observed that there was no post of tractor driver in the establishment, and the suit was dismissed. The Trial Court held that plying a tractor is part and parcel of the job of Mali in a Golf Club, since the Golf Field of the Club is vast and needs to be maintained with mechanical gadgets. 6. Aggrieved against the said order of dismissal of the suit, the respondents herein preferred an appeal before the Additional District Judge, Faridabad. Their appeal was accepted and the judgment and decree of the Trial Court was set aside. The First Appellate Court observed that the defendants were taking the work of tractor driver from the plaintiffs since 13.8.1999, and hence it directed the defendants to get the post of tractor driver sanctioned, and to regularize the plaintiffs on that post.

7. Thereafter the Divisional Manager, Aravali Golf Club filed a second appeal before the High Court of Punjab and Haryana. The learned Single Judge held that the post of tractor driver should be created as there is no hitch in not creating the posts of drivers especially when tractors were available and there existed need to use those tractors. It was also observed by the learned Single Judge that simply by relying upon technicalities the State authorities cannot be allowed to suppress the individuals and to deny their lawful rights. The learned Single Judge also held that no substantial question of law arose in the matter. Hence, the second appeal was dismissed and the judgment of the First Appellate Court was upheld. Aggrieved against the said judgment of the learned Single Judge, the appellants are in appeal before us. 8. The plaintiff-respondents admitted in the plaint that they were appointed as Mali. In the suit the plaintiff-respondents stated that they were working as tractor driver at Aravali Golf Club. Initially they were engaged on daily wages. Thereafter their services were regularized on the post of Mali (gardener) instead of tractor driver. The respondents filed a representation before the concerned authorities for regularizing them on the post of Tractor Driver, but that was not done since there was no post of tractor driver. Therefore, the respondents filed a suit. 9. The suit was contested by the defendants-appellants. The appellants in their written statement submitted that the plaintiffs were appointed as Mali on a daily wage basis on 9.10.1989. The respondent No.1 had earlier filed Writ Petition No.6216/1991 for regularizing his services. The Hon'ble High Court disposed of the said writ petition by passing the order directing the respondent No.1 to make a representation against the termination of his services and the appellants herein were restrained from terminating the services of the respondent No.1 till his representation was decided. The writ petition was accordingly disposed of. 10. In pursuance of the said order the respondent No.1 made representation for regularization of his service on 2.5.1991. The plaintiff- respondent was informed vide order dated 14.5.1991 that there was no post of tractor driver and his case for regularization would be considered as and when sanctioned post of the tractor deriver will be available. 11. The plaintiff-respondent was paid wages of tractor deriver from August 1990 to 11.5.1999 on daily wage basis on D.C. rate as he was asked to work as a tractor driver. He was also informed that whenever a post of tractor driver was created, his case for appointment of tractor deriver will be considered. In the meanwhile services of plaintiff No.1 was regularized as Mali vide order dated 11.5.1999 which was duly accepted by him without any protest. Similar is the case of respondent No.2 herein. He was engaged as Mali on daily wage basis w.e.f. 1.9.1988 and his services were also regularized as Mali vide order dated 11.5.1999. 12. In the written statement in the suit the appellants took preliminary objection that as there is no sanctioned post of tractor driver and hence there is no question of their being appointed on the post of tractor driver. It was also asserted in the written statement that

as and when the post of tractor driver will be available their cases will be considered in accordance with law. On the basis of these pleadings, several issues were framed and a finding was recorded by the Trial Court that as there is no sanctioned post of tractor driver, the plaintiffs cannot be regularized in the said post. This is a finding of fact recorded by the Trial Court and it was never disputed at any stage. Aggrieved against the said judgment the respondents herein filed an appeal and the learned First Appellate Court without going into the merit of the matter set aside the judgment and decree of the Trial Court and directed creation of the post of tractor driver, and regularization of the respondents on the said post. Against the said order of the First Appellate Court, the appellants herein preferred a second appeal before the High Court of Punjab and Haryana. The learned Single Judge has affirmed the judgment and order of the First Appellate Court. 13. Learned Counsel for the appellants submitted that there is no post of tractor driver, and therefore, there is no question of regularizing the respondents in the said post. It is not disputed that there is no sanctioned post of tractor driver in the appellant's establishment. Learned Counsel for the respondents has also not been able to show that there are any sanctioned posts of tractor driver. 14. Since there is no sanctioned post of tractor driver against which the respondents could be regularized as tractor driver, the direction of the First Appellate Court and the learned Single Judge to create the post of tractor driver and regularizing the services of the respondents against the said newly created posts was in our opinion completely beyond their jurisdiction. 15. The Court cannot direct the creation of posts. Creation and sanction of posts is a prerogative of the executive or legislative authorities and the Court cannot arrogate to itself this purely executive or legislative function, and direct creation of posts in any organization. This Court has time and again pointed out that the creation of a post is an executive or legislative function and it involves economic factors. Hence the Courts cannot take upon themselves the power of creation of a post. Therefore, the directions given by the High Court and First Appellate Court to create the posts of tractor driver and regularize the services of the respondents against the said posts cannot be sustained and are hereby set aside. 16. Consequently, this appeal is allowed and the judgment and order of the High Court as well as that of the First Appellate Court are set aside and the judgment of the Trial Court is upheld. The suit is dismissed. No costs. 17. Before parting with this case we would like to make some observations about the limits of the powers of the judiciary. We are compelled to make these observations because we are repeatedly coming across cases where Judges are unjustifiably trying to perform executive or legislative functions. In our opinion this is clearly unconstitutional. In the name of judicial activism Judges cannot cross their limits and try to take over functions which belong to another organ of the State.

18. Judges must exercise judicial restraint and must not encroach into the executive or legislative domain vide Indian Drugs & Pharmaceuticals Ltd. v. The Workman of Indian Drugs and Pharmaceuticals Ltd.: (2007) 1 SCC 408 and S.C. Chandra and Ors. v. State of Jharkhand and Ors. : AIR 2007 SC 3021 (See concurring judgment of M. Katju, J.). 19. Under our Constitution, the Legislature, Executive and Judiciary all have their own broad spheres of operation. Ordinarily it is not proper for any of these three organs of the State to encroach upon the domain of another, otherwise the delicate balance in the Constitution will be upset, and there will be a reaction. 20. Judges must know their limits and must not try to run the Government. They must have modesty and humility, and not behave like Emperors. There is broad separation of powers under the Constitution and each organ of the State - the legislature, the executive and the judiciary - must have respect for the others and must not encroach into each others domains. 21. The theory of separation of powers first propounded by the French thinker Montesquieu (in his book `The Spirit of Laws') broadly holds the field in India too. In chapter XI of his book `The Spirit of Laws' Montesquieu writes: When the legislative and executive powers are united in the same person, or in the same body of magistrates, there can be no liberty; because apprehensions may arise, lest the same monarch or senate should enact tyrannical laws, to execute them in a tyrannical manner. Again, there is no liberty, if the judicial power be not separated from the legislative and executive. Were it joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would be then the legislator. Were it joined to the executive power, the judge might behave with violence and oppression. There would be an end of everything, were the same man or the same body, whether of the nobles or of the people, to exercise those three powers, that of enacting laws, that of executing the public resolutions, and of trying the causes of individuals. (Emphasis Supplied) We fully agree with the view expressed above. Montesquieu's warning in the passage above quoted is particularly apt and timely for the Indian Judiciary today, since very often it is rightly criticized for 'over-reach' and encroachment into the domain of the other two organs. 22. In Tata Cellular v. Union of India: AIR 1996 SC 11 this Court observed that the modern trend points to judicial restraint in administrative action. The same view has been taken in a large number of other decisions also, but it is unfortunate that many courts are not following these decisions and are trying to perform legislative or

executive functions. In our opinion adjudication must be done within the system of historically validated restraints and conscious minimization of the Judges' preferences. The Court must not embarrass the administrative authorities and must realize that administrative authorities have expertise in the field of administration while the Court does not. In the word of Chief Justice Neely: I have very few illusions about my own limitations as a judge. I am not an accountant, electrical engineer, financier, banker, stockbroker or system management analyst. It is the height of folly to expect Judges intelligently to review a 5000 page record addressing the intricacies of a public utility operation. It is not the function of a Judge to act as a super board, or with the zeal of a pedantic school master substituting its judgment for that of the administrator. 23. In Ram Jawaya v. State of Punjab: [1955] 2 SCR 225, a Constitution Bench of this Court observed: The Indian Constitution has not indeed recognized the doctrine of separation of powers in its absolute rigidity but the functions of the different parts or branches of the Government have been sufficiently differentiated and consequently it can very well be said that our Constitution does not contemplate assumption by one organ or part of the State, of functions that essentially belong to another (Emphasis Supplied) 24. Similarly, in Asif Hameed v. State of Jammu and Kashmir: [1989] 3 SCR 19 a three Judge bench of this Court observed (vide paragraphs 17 to 19): 17. Before adverting to the controversy directly involved in these appeals we may have a fresh look on the inter se functioning of the three organs of democracy under our Constitution. Although the doctrine of separation of powers has not been recognized under the Constitution in its absolute rigidity but the constitution makers have meticulously defined the functions of various organs of the State. Legislature, executive and judiciary have to function within their own spheres demarcated under the Constitution. No organ can usurp the functions assigned to another. The Constitution trusts to the judgment of these organs to function and exercise their discretion by strictly following the procedure prescribed therein. The functioning of democracy depends upon the strength and independence of each of its organs. Legislature and executive, the two facets of people's will, they have all the powers including that of finance. Judiciary has no power over sword or the purse nonetheless it has power to ensure that the aforesaid two main organs of State function within the constitutional limits. It is the sentinel of democracy. Judicial review is a powerful weapon to restrain unconstitutional exercise of power by the legislature and executive. The expanding horizon of judicial review has taken in its fold the concept of social and economic justice. While exercise of powers by the legislature and executive is subject to judicial restraint, the only check on our own exercise of power is the self imposed discipline of judicial restraint.

18. Frankfurter, J. of the U.S. Supreme Court dissenting in the controversial expatriation case of Trop v. Dulles (1958) 356 US 86 observed as under: All power is, in Madison's phrase, of an encroaching nature. Judicial powers is not immune against this human weakness. It also must be on guard against encroaching beyond its proper bounds, and not the less so since the only restraint upon it is self restraint.... Rigorous observance of the difference between limits of power and wise exercise of power-between questions of authority and questions of prudence-requires the most alert appreciation of this decisive but subtle relationship of two concepts that too easily coalesce. No less does it require a disciplined will to adhere to the difference. It is not easy to stand aloof and allow want of wisdom to prevail to disregard one's own strongly held view of what is wise in the conduct of affairs. But it is not the business of this Court to pronounce policy. It must observe a fastidious regard for limitations on its own power, and this precludes the Court's giving effect to its own notions of what is wise or politic. That self-restraint is of the essence in the observance of the judicial oath, for the Constitution has not authorized the judges to sit in judgment on the wisdom of what Congress and the Executive Branch do. 19. When a State action is challenged, the function of the court is to examine the action in accordance with law and to determine whether the legislature or the executive has acted within the powers and functions assigned under the constitution and if not, the court must strike down the action. While doing so the court must remain within its selfimposed limits. The court sits in judgment on the action of a coordinate branch of the Government. While exercising power of judicial review of administrative action, the court is not an appellate authority. The constitution does not permit the court to direct or advise the executive in matters of policy or to sermonize qua any matter which under the constitution lies within the sphere of legislature or executive, provided these authorities do not transgress their constitutional limits or statutory powers. 25. Unfortunately, despite these observations in the above mentioned decisions of this Court, some courts are still violating the high constitutional principle of separation of powers as laid down by Montesquieu. As pointed out by Hon'ble Mr. Justice J. S. Verma, the former CJI, in his Dr. K.L. Dubey Lecture: ...Judiciary has intervened to question a 'mysterious car' racing down the Tughlaq Road in Delhi, allotment of a particular bungalow to a Judge, specific bungalows for the Judges, pool, monkeys capering in colonies, stray cattle on the streets, clearing public conveniences, levying congestion charges at peak hours at airports with heavy traffic, etc. under the threat of use of contempt power to enforce compliance of its orders. Misuse of the contempt power to force railway authorities to give reservation in a train is an extreme instance. 26. Recently, the Courts have apparently, if not clearly, strayed into the executive domain or in matters of policy. For instance, the orders passed by the High Court of

Delhi in recent times dealt with subjects ranging from age and other criteria for nursery admissions, unauthorized schools, criteria for free seats in schools, supply of drinking water in schools, number of free beds in hospitals on public land, use and misuse of ambulances, requirements for establishing a world class burns ward in the hospital, the kind of air Delhities breathe, begging in public, the use of sub-ways, the nature of buses we board, the legality of constructions in Delhi, identifying the buildings to be demolished, the size of speed-breakers on Delhi roads, auto-rickshaw over-charging, growing frequency of road accidents and enhancing of road fines etc. In our opinion these were matters pertaining exclusively to the executive or legislative domain. If there is a law, Judges can certainly enforce it, but Judges cannot create a law and seek to enforce it. 27. For instance, the Delhi High Court directed that there can be no interview of children for admissions in nursery schools. There is no statute or statutory rule which prohibits such interviews. Hence the Delhi High Court has by a judicial order first created a law (which was wholly beyond its jurisdiction) and has then sought to enforce it. This is clearly illegal, for Judges cannot legislate vide Union of India v. Deoki Nandan Agarwal: [1991] 3 SCR 873. In V.K. Reddy v. State of Andhra Pradesh: AIR 2006 SC 3517 this Court observed The Judges should not proclaim that they are playing the role of law maker merely for an exhibition of judicial valour". Similarly, the Court cannot direct the legislature to make a particular law vide Suresh Seth v. Commissioner, Indore Municipal Corporation and Ors.: AIR 2006 SC 767 , Bal Ram Bali v. Union of India: AIR 2007 SC 3074 , but this settled principle is also often breached by Courts. 28. The Jagadambika Pal's case of 1998, involving the U.P. Legislative Assembly, and the Jharkhand Assembly case of 2005, are two glaring examples of deviations from the clearly provided constitutional scheme of separation of powers. The interim orders of this Court, as is widely accepted, upset the delicate constitutional balance among the Judiciary, Legislature and the Executive, and was described Hon. Mr. J.S. Verma, the former CJI, as judicial aberrations, which he hoped that the Supreme Court will soon correct. 29. Hon'ble Justice A.S. Anand, former Chief Justice of India has recently observed: "Courts have to function within the established parameters and constitutional bounds. Decisions should have a jurisprudential base with clearly discernible principles. Courts have to be careful to see that they do not overstep their limits because to them is assigned the sacred duty of guarding the Constitution. Policy matters, fiscal, educational or otherwise, are thus best left to the judgment of the executive. The danger of the judiciary creating a multiplicity of rights without the possibility of adequate enforcement will, in the ultimate analysis, be counter productive and undermine the credibility of the institution. Courts cannot "create rights" where none exists nor can they go on making orders which are incapable of enforcement or violative of other laws or settled legal principles. With a view to see that judicial activism does not become "judicial adventurism", the courts must act with caution and proper restraint. They must remember that judicial activism is not an unguided missile - failure to bear this in mind

would lead to chaos. Public adulation must not sway the judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and credibility of judicial process. It needs to be remembered that courts cannot run the government. The judiciary should act only as an alarm bell; it should ensure that the executive has become alive to perform its duties. 30. The justification often given for judicial encroachment into the domain of the executive or legislature is that the other two organs are not doing their jobs properly. Even assuming this is so, the same allegation can then be made against the judiciary too because there are cases pending in Courts for half-a-century as pointed out by this Court in Rajindera Singh v. Prem Mai and Ors. Civil Appeal No. 1307/2001 decided on 23 August, 2007. 31. If the legislature or the executive are not functioning properly it is for the people to correct the defects by exercising their franchise properly in the next elections and voting for candidates who will fulfill their expectations, or by other lawful methods e.g. peaceful demonstrations. The remedy is not in the judiciary taking over the legislative or executive functions, because that will not only violate the delicate balance of power enshrined in the Constitution, but also the judiciary has neither the expertise nor the resources to perform these functions. 32. Of the three organs of the State, the legislature, the executive, and the judiciary, only the judiciary has the power to declare the limits of jurisdiction of all the three organs. This is a great power and hence must never be abused or misused, but should be exercised by the judiciary with the utmost humility and self-restraint. 33. Judicial restraint is consistent with and complementary to the balance of power among the three independent branches of the State. It accomplishes this in two ways. First, judicial restraint not only recognizes the equality of the other two branches with the judiciary, it also fosters that equality by minimizing inter-branch interference by the judiciary. In this analysis, judicial restraint may also be called judicial respect, that is, respect by the judiciary for the other coequal branches. In contrast, judicial activism's unpredictable results make the judiciary a moving target and thus decreases the ability to maintain equality with the co-branches. Restraint stabilizes the judiciary so that it may better function in a system of inter- branch equality. 34. Second, judicial restraint tends to protect the independence of the judiciary. When courts encroach into the legislative or administrative fields almost inevitably voters, legislators, and other elected officials will conclude that the activities of judges should be closely monitored. If judges act like legislators or administrators it follows that judges should be elected like legislators or selected and trained like administrators. This would be counterproductive. The touchstone of an independent judiciary has been its removal from the political or administrative process. Even if this removal has sometimes been less than complete, it is an ideal worthy of support and one that has had valuable effects.

35. The constitutional trade - off for independence is that judges must restrain themselves from the areas reserved to the other separate branches. Thus, judicial restraint complements the twin, overarching values of the independence of the judiciary and the separation of powers. 36. In Lochner v. New York (1905) 198 US 45 Mr. Justice Holmes of the U.S. Supreme Court in his dissenting judgment criticized the majority of the Court for becoming a super legislature by inventing a `liberty of contract' theory, thereby enforcing its particular laissez - faire economic philosophy. Similarly, in his dissenting judgment in Griswold v. Cannecticut (1965) 381 U.S. 479, Mr. Justice Hugo Black warned that unbounded judicial creativity would make this Court a day-to-day Constitutional Convention". In `The Nature of the Judicial Process' (1921) Justice Cardozo remarked: "The Judge is not a Knight errant, roaming at will in pursuit of his own ideal of beauty and goodness". Justice Frankfurter has pointed out that great judges have constantly admonished their brethren of the need for discipline in observing their limitations (see Frankfurter's `Some Reflections on the Reading of Statutes'). 37. In this connection we may usefully refer to the well-known episode in the history of the U.S. Supreme Court when it dealt with the New Deal Legislation of President Franklin Roosevelt. When President Roosevelt took office in January 1933 the country was passing through a terrible economic crisis, the Great Depression. To overcome this, President Roosevelt initiated a series of legislation called the New Deal, which were mainly economic regulatory measures. When these were challenged in the U.S. Supreme Court the Court began striking them down on the ground that they violated the due process clause in the U.S. Constitution. As a reaction, President Roosevelt proposed to reconstitute the Court with six more Judges to be nominated by him. This threat was enough and it was not necessary to carry it out. The Court in 1937 suddenly changed its approach and began upholding the laws. `Economic due process' met with a sudden demise. 38. The moral of this story is that if the judiciary does not exercise restraint and overstretches its limits there is bound to be a reaction from politicians and others. The politicians will then step in and curtail the powers, or even the independence, of the judiciary (in fact the mere threat may do, as the above example demonstrates). The judiciary should, therefore, confine itself to its proper sphere, realizing that in a democracy many matters and controversies are best resolved in non-judicial setting. 39. We hasten to add that it is not our opinion that judges should never be `activist'. Sometimes judicial activism is a useful adjunct to democracy such as in the School Segregation and Human Rights decisions of the U.S. Supreme Court vide Brown v. Board of Education (1954) 347 U.S. 483 , Miranda v. Arizona (1966) 384 U.S. 436, (1973) Roe v. Wade 410 U.S. 113, etc. or the decisions of our own Supreme Court which expanded the scope of Articles 14 and 21 of the Constitution. This, however, should be resorted to only in exceptional circumstances when the situation forcefully demands it in the interest of the nation or the poorer and weaker sections of society but always keeping in mind that ordinarily the task of legislation or administrative decisions

is for the legislature and the executive and not the judiciary. 40. In Dennis v. United States (United States Supreme Court Reports 95 Law Ed. Oct. 1950 Term U.S. 340-341) Mr. Justice Frankfurter observed: Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. Their judgment is best informed, and therefore, most dependable, within narrow limits. Their essential quality is detachment, founded on independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures. 41. In view of the above discussion we are clearly of the view that both the High Court and First Appellate Court acted beyond their jurisdiction in directing creation of posts of tractor driver to accommodate the respondents. Appeal Allowed.

MANU/SC/0185/2002 Equivalent Citation: AIR 2002 SC 1432, 2002 (2) SCALE 612, (2002) 4 SCC 105 IN THE SUPREME COURT OF INDIA Decided On: 13.03.2002 Appellants: Bhatia International Vs. Respondent: Bulk Trading S.A. and Anr. Hon'ble Judges: G. B. Pattanaik, S. N. Phukan and S. N. Variava , JJ. JUDGMENT S.N. Variava, J. 1. This Appeal is against a Judgment dated 10th October, 2000 passed by the Madhya Pradesh High Court. 2. Briefly stated the facts are as follows: The Appellant entered into a contract with the 1st Respondent on 9th May, 1997. This contract contained an arbitration clause which provided that arbitration was to be as per the rules of the International Chamber of Commerce (for short ICC). On 23rd October, 1997 the 1st Respondent filed a request for arbitration with ICC. Parties agreed that the arbitration be held in Paris, France. ICC has appointed a sole arbitrator.

3. 1st Respondent filed an application under Section 9 of the Arbitration and Conciliation Act, 1996 (hereinafter called the said Act) before the IIIrd Additional District Judge, Indore, M.P. against the Appellant and the 2nd Respondent. One of the interim reliefs sought was an order of injunction restraining these parties from alienating, transferring and/or creating third party right, disposing of, dealing with and/or selling their business assets and properties. The Appellant raised the plea of maintainability of such an application. The Appellant contended that Part I of the said Act would not apply to arbitrations where the place of arbitration is not in India. This application was dismissed by the IIIrd Additional District Judge on 1st February, 2000. It was held that the Court at Indore had jurisdiction and the application was maintainable. The Appellant filed a Writ Petition before the High Court of Madhya Pradesh, Indore Bench. The said Writ Petition has been dismissed by the impugned Judgment dated 10th October, 2000. 4. On behalf of the Appellants, Mr. Sen submits that Part I of the said Act only applies to arbitrations where the place of arbitration is in India. He submits that if the place of arbitration is not in India then Part II of the said Act would apply. He relies on subsection (2) Section 2 of the said Act which provides that Part I shall apply where the place of arbitration is in India. He submits that sub-section (2) of Section 2 makes it clear that the provisions of Part I do not apply where the place of arbitration is not in India. Mr. Sen points out that the said Act is based on UNCITRAL Model Law on International Commercial Arbitration. He points out that Article 1(2) of UNCITRAL Model Law provides that the law, except Articles 8, 9, 35 and 36 of the Model Law, would apply only if the Arbitration takes place in the territory of the State. Mr. Sen submits that Article 9 of the UNCITRAL Model Law permits a party to request a Court for interim measure even if the arbitration is not in the territory of the State. He submits that whilst framing the said Act the Legislature has purposely not adopted Article 1(2) of the UNCITRAL Model Law. He submits that this clearly shows the intention of the Legislature that they did not want Part I to apply to arbitrations which take place outside India. 5. Mr. Sen points out that Section 2(f) of the said Act defines an "international commercial arbitration". Mr. Sen submits that an international commercial arbitration could take place either in India or outside India. He submits that if the international commercial arbitration takes place out of India then Part I of the said Act would not apply. He submits that Part II of the said Act applies to foreign awards. 6. Mr. Sen fairly draws the attention of this Court to sub-sections (3), (4) and (5) of Section 2, which read as follows: "2(3) This Part shall not affect any other law for the time being in force by virtue of which certain disputes may not be submitted to arbitration. (4) This Part except sub-section (1) of section 40, sections 41 and 43 shall apply to every arbitration under any other enactment for the time being in force, as if the arbitration

were pursuant to an arbitration agreement and as if that other enactment were an arbitration agreement except in so far as the provisions of this Part are inconsistent with that other enactment or with any rules made thereunder. (5) Subject to the provisions of sub-section (4), and save in so far as is otherwise provided by any law for the time being in force or in any agreement in force between India and any other country or countries, this Part shall apply to all arbitrations and to all proceedings relating thereto." Mr. Sen submits that sub-sections (3), (4) and (5) of Section 2 would necessarily only apply to arbitration which take place in India. He submits that, therefore, even though the sub-section (4) of Section 2 uses the words "every arbitration" and sub-section (5) of Section 2 uses the words "all arbitrations and to all proceedings relating thereto", they must necessarily refer only to arbitrations which take place in India. He submits that otherwise there would be a conflict between sub section (2) on one hand and sub sections (4) and/or (5) on the other. Mr. Sen submits that if it is held that Part I applies to all arbitrations i.e. even to arbitrations whose place of arbitration is not in India, then Sub section (2) of Section 2 would become redundant and/or otiose. 7. Mr. Sen submits that in this matter arbitration is being held in Paris i.e. out of India. He submits that to such arbitrations Part I does not apply. He submits that Sections 9 and 17 fall in Part I. He submits that Sections 9 and 17 would not apply and cannot be used in cases where the place of arbitration is not in India. 8. Mr. Sen submits out that Part II deals with enforcement of foreign awards and makes elaborate provisions in respect thereof. He points out that in Part II there is no provision similar to Sections 9 and 17. He submits that the Legislature, whilst providing for foreign awards, has purposely omitted to make any provision for interim measures either by the Court or by arbitral tribunal. He submits that the reason for this is obvious. He submits that in cases, where arbitrations take place outside India they would be governed by the rules of the country or the body under whose jurisdiction they are being conducted. He submits that under the ICC Rules of Arbitration Article 23 provides for interim measures. Mr. Sen submits that the remedy, if any, is to apply for interim relief under Article 23. 9. Mr. Sen submits that a plain reading of Section 9 also makes it clear that it would not apply to arbitrations which take place outside India. He submits that Section 9 provides that an application for interim measure must be made before the award is enforced in accordance with Section 36. Mr. Sen submits that Section 36 deals with enforcement of domestic awards only. Mr. Sen submits that provisions for enforcement of foreign awards are contained in Sections 48 49 57 and 58. He submits that it is very significant that Section 9 does not talk of enforcement of the award in accordance with Sections 48 49 57 and 58. Mr. Sen submits that this also makes it clear that the provisions of Part I of the said Act do not apply to arbitrations which do not take place in India. 10. Mr. Sen also relies on Section 5 of the said Act and submits that the underlying

principle is that a judicial authority should not interfere except as provided in said act. He submits that the rational behind this is that there should be minimum interference by Courts. 11. Mr. Sen submits that the Court in Indore could not have entertained the application under Section 9 as Part I did not apply to arbitrations which take place outside India. He submits that the Court in Indore and the High Court were wrong in rejecting the application of the Appellant and in holding that the Court had jurisdiction. 12. Mr. Sen states that on this aspect there is no authority of this Court. He points out that a number of High Courts including the High Courts at Orissa, Bombay, Madras, Delhi and Calcutta have held that Part I of the said Act would not apply to arbitrations which take place outside India. He points out that earlier, two single Judges of the Delhi High Court had held that Part I applies to arbitrations which take place outside India. He points out that now a Division Bench of the Delhi High Court has held that Part I does not apply to arbitrations which take place outside India. He submits that therefore now the only High Court which has held, that Part I applies to arbitrations which take place outside India, is the Madhya Pradesh High Court, which has so held by the impugned Judgment. Mr. Sen took us through the authority of the Division Bench of the Delhi High Court in the case of Marriott International Inc. v. Ansal Hotels Ltd. reported in: AIR 2000 Delhi 377. He also took us through an unreported Judgment of a Division Bench of the Calcutta High Court dated 27th January, 1998 in the case of Keventor Agro Ltd. v. Seagram Company Ltd. [1998 APO Nos. 490, 499 of 1997 and CS No. 592 of 1997, dated 27-1-1998 (Cal)]. These authorities adopt, more or less, the same reasoning as has been canvassed by Mr. Sen. The Delhi High Court further notices that this reasoning may lead to a situation where a party may be left remedy-less and, therefore, would work hardship on a party. The Delhi High Court however observed as follows : "We may agree with the learned counsel for the appellant that it may, in some cases, lead to hardship to a party, however, when the language of the statute is plain and unambiguous and admits of only one meaning. The question of construction of statute arises, for the Act speaks for itself even if the result is strange or surprising, unreasonable or unjust or oppression as it is not for the Courts to extend the scope of the statute beyond the contemplation of the legislature. It is entirely for the legislature to look into this question." 13. On the other hand Mr. Sundaram for the Respondents has taken us through various provisions of the said Act. He has ably submitted that a conjoint reading of provisions shows that Part I is to apply to all arbitrations. He submits that unless parties by their agreement excludes its provisions Part I would also apply to international commercial arbitrations including those that take place out of India. the the the all

14. At first blush the arguments of Mr. Sen appear very attractive. Undoubtedly subsection (2) of Section 2 states that Part I is to apply where the place of arbitration is in India. Undoubtedly, Part II applies to foreign awards. Whilst the submissions of Mr. Sen are attractive one has to keep in mind the consequence which would follow if they are

accepted. The result would :a) amount to holding that the Legislature has left a lacunae in the said Act. There would be a lacunae as neither Part I or II would apply to arbitrations held in a country which is not a signatory to the New York Convention or the Geneva Convention (hereinafter called a non- convention country). It would mean that there is no law, in India, governing such arbitrations. b) lead to an anomalous situation, inasmuch Part I would apply to Jammu and Kashmir in all international commercial arbitrations but Part I would not apply to the rest of India if the arbitration takes place out of India. c) lead to a conflict between sub-section (2) of Section 2 on one hand and sub-sections (4) and (5) of Section 2 on the other. Further sub- section (2) of Section 2 would also be in conflict with Section 1 which provides that the Act extends to the whole of India. d) leave a party remediless inasmuch as in international commercial arbitrations which take place out of India the party would not be able to apply for interim relief in India even though the properties and assets are in India. Thus a party may not be able to get any interim relief at all. 15. It is thus necessary to see whether the language of the said Act is so plain and unambiguous as to admit of only the interpretation suggested by Mr. Sen. It must be borne in mind that the very object of the Arbitration and Conciliation Act of 1996, was to establish a uniform legal framework for the fair and efficient settlement of disputes arising in international commercial arbitration. The conventional way of interpreting a statute is to seek the intention of its makers. If a statutory provision is open to more than one interpretation then the Court has to choose that interpretation which represents the true intention of the legislature. This task often is not an easy one and several difficulties arise on account of variety of reasons, but at the same, it must be borne in mind that it is impossible even for the most imaginative legislature to forestall exhaustively situations and circumstances that may emerge after enacting a statute where its application may be called for. It is in such a situation the Courts' duty to expound arises with a caution that the Court should not try to legislate. While examining a particular provision of a statute to find out whether the jurisdiction of a Court is ousted or not, the principle of universal application is that ordinarily the jurisdiction may not be ousted unless the very statutory provision explicitly indicates or even by inferential conclusion the Court arrives at the same when such a conclusion is the only conclusion. Notwithstanding the conventional principle that the duty of judges is to expound and not to legislate. The Courts have taken the view that the judicial art of interpretation and appraisal is imbued with creativity and realism and since interpretation always implied a degree of discretion and choice, the Court would adopt particularly in areas such as, constitutional adjudication dealing with social and defuse rights. Courts are therefore, held as "finishers, refiners, and polishers of legislatures which gives them in a state requiring varying degrees of further processing". (see Corrocraft Ltd. vs. Pan American Airways (1968) 3 WLR 714, AIR 1975 SC 1951. If a language used is capable of bearing more than one construction,

in selecting the true meaning, regard must be had to the consequences, resulting from adopting the alternative constructions. A construction that results in hardship, serious inconvenience, injustice, absurdity or anomaly or which leads to inconsistency or uncertainty and friction in the system which the statute purports to regulate has to be rejected and preference should be given to that construction which avoids such results. (see Johnson vs. Moreton (1978) 3 All. ER 37 and Stock vs. Frank Jones (Tipton) Ltd. 1978) 1 All. ER 948. In selecting out of different interpretations the Court will adopt that which is just reasonable and sensible rather than that which is none of those things, as it may be presumed that the legislature should have used the word in that interpretation which least offends our sense of justice. In Shanon Realites Ltd. vs. Sant Michael (924) A.C. page 185 at page 192-193 Lord Shaw stated, "where words of a statute are clear, they must, of course, be followed, but in their Lordships opinion where alternative constructions are equally open that alternative is to be chosen which will be consistent with the smooth working of the system which the statute purports to be regulating and that alternative is to be rejected which will introduce uncertainty, friction or confusion into the working of the system." This principle was accepted by Subba Rao, J. while construing Section 193 of the Sea Customs Act and in coming to the conclusion that the Chief of Customs Authority was not an officer of custom.: 1983 ECR 2163 D (SC). 16. A reading of the provisions shows that the said Act applies to arbitrations which are held in India between Indian nationals and to international commercial arbitrations whether held in India or out of India. Section 2(f) defines an international commercial arbitration. The definition makes no distinction between international commercial arbitrations held in India or outside India. An international commercial arbitration may be held in a country which is a signatory to either the New York Convention or the Geneva Convention (hereinafter called the convention country). An international commercial arbitration may be held in a non-convention country. The said Act nowhere provides that its provisions are not to apply to international commercial arbitrations which take place in a non-convention country. Admittedly Part II only applies to arbitrations which take place in a convention country. Mr. Sen fairly admitted that Part II would not apply to an international commercial arbitration which takes place in a nonconvention country. He also fairly admitted that there would be countries which are not signatories either to the New York Convention or to the Geneva Convention. It is not possible to accept submission that the said Act makes no provision for international commercial arbitrations which take place in a non-convention country. 17. Section 1 of the said Act reads as follows: "1. Short title, extent and commencement.- (1) This Act may be called the Arbitration and Conciliation Act, 1996. (2) It extends to the whole of India: Provided that Parts I, III and IV shall extend to the State of Jammu and Kashmir only in so far as they relate to international commercial arbitration or, as the case may be, international commercial conciliation." The words "this Act" means the entire Act. This shows that the entire Act, including Part

I, applies to the whole of India. The fact that all Parts apply to whole of India is clear from the proviso which provides that Parts I, III and IV will apply to the State of Jammu and Kashmir only so far as international commercial arbitrations/conciliations are concerned. Significantly the proviso does not state that Part I would apply to Jammu and Kashmir only if the place of the international commercial arbitration is in Jammu and Kashmir. Thus if sub-section (2) of Section 2 is read in the manner suggested by Mr. Sen there would be a conflict between Section 1 and Section 2(2). There would also be an anomaly inasmuch as even if an international commercial arbitration takes place outside India, Part I would continue to apply in Jammu and Kashmir, but it would not apply to the rest of India. The Legislature could not have so intended. 18. Section 2(a) defines "arbitration" as meaning any arbitration whether or not administered by a permanent arbitral institution. Thus, this definition recognises that the arbitration could be under a body like the Indian Chambers of Commerce or the International Chamber of Commerce. Arbitrations under International Chamber of Commerce would be held, in most cases, out of India. Section 2(c) provides that the term "arbitral award" would include an interim award. 19. Section 2(f) of the said Act defines an international commercial arbitration. It reads as follows: "2(f) "international commercial arbitration" means an arbitration relating to disputes arising out of legal relationships, whether contractual or not, considered as commercial under the law in force in India and where at least one of the parties is (i) an individual who is a national of, or habitually resident in, any country other than India; or (ii) a body corporate which is incorporated in any country other than India; or (iii) a company or an association or a body of individuals whose central management and control is exercised in any country other than India; or (iv) the Government of a foreign country." As stated above the definition of "international commercial arbitration" makes no distinction between international commercial arbitrations which take place in India or internal commercial arbitrations which take place outside India. 20. Section 2(e) defines "Court" as follows: 2(e) "Court" means the principle Civil Court of original jurisdiction in a district, and includes the High Court in exercise of its ordinary original civil jurisdiction, having jurisdiction to decide the questions forming the subject- matter of the arbitration if the same had been the subject- matter of a suit, but does not include any civil court of a grade inferior to such principal Civil Court, or any Court of Small Causes."

A Court is one which would otherwise have jurisdiction in respect of the subject matter. The definition does not provide that the Courts in India, will not have jurisdiction if an international commercial arbitration takes place outside India. Courts in India would have jurisdiction even in respect of an international commercial arbitration. As stated above an ouster of jurisdiction cannot be implied. An ouster of jurisdiction has to be express. 21. Now let us look at sub-sections (2), (3), (4) and (5) of Section 2. Sub-section (2) of Section (2) provides that Part I would apply where the place of arbitration is in India. To be immediately noted that it is not providing that Part I shall not apply where the place of arbitration is not in India. It is also not providing that Part I will "only" apply where the place of arbitration is in India (emphasis supplied). Thus the Legislature has not provided that Part I is not to apply to arbitrations which take place outside India. The use of the language is significant and important. The Legislature is emphasising that the provisions of Part I would apply to arbitrations which take place in India, but not providing that the provisions of Part I will not apply to arbitrations which take place out of India. The wording of sub-section (2) of Section 2 suggests that the intention of the Legislature was to make provisions of Part I compulsorily applicable to an arbitration, including an international commercial arbitration, which takes place in India. Parties cannot, by agreement, override or exclude the non-derivable provisions of Part I in such arbitrations. By omitting to provide that Part I will not apply to international commercial arbitrations which take place outside India the affect would be that Part I would also apply to international commercial arbitrations held out of India. But by not specifically providing that the provisions of Part I apply to international commercial arbitrations held out of India, the intention of the Legislature appears to be to ally parties to provide by agreement that Part I or any provision therein will not apply. Thus in respect of arbitrations which take place outside India even the non-derivable provisions of Part I can be excluded. Such an agreement may be express or implied. 22. If read in this manner there would be no conflict between Section 1 and Section 2(2). The words "every arbitration" in sub- section (4) of Section 2 and the words "all arbitrations and all proceedings relating thereto" in sub-section (5) of Section 2 are wide. Sub-sections (4) and (5) of Section 2 are not made subject to sub- section (2) of Section 2. It is significant that sub-section (5) is made subject to sub-section (4) but not to subsection (2). To accept Mr. Sen's submission would necessitate adding words in subsections (4) and (5) of Section 2, which the Legislature has purposely omitted to add viz. "Subject to provision of sub-section (2)". However read in the manner set out hereinabove there would also be no conflict between sub-section (2) of Section 2 and sub-sections (4) and/or (5) of Section 2. 23. That the Legislature did not intend to exclude the applicability of Part I to arbitrations, which take place outside India, is further clear from certain other provisions of the said Act. Sub-section (7) of Section 2 reads as follows: "(7) An arbitral award made under this Part shall be considered as a domestic award."

As is set out hereinabove the said Act applies to (a) arbitrations held in India between Indians (b) international commercial arbitrations. As set out hereinabove international commercial arbitrations may take place in India or outside India. Outside India an international commercial arbitration may be held in a convention country or in a nonconvention country. The said Act however only classifies awards as "domestic awards" or "foreign awards". Mr. Sen admits that provisions of Part II makes it clear that "foreign awards" are only those where the arbitration takes place in a convention country. Awards in arbitration proceedings which take place in a non- convention country are not considered to be "foreign awards" under the said Act. They would thus not be covered by Part II. An award passed in an arbitration which takes place in India would be a "domestic award". There would thus be no need to define an award as a "domestic award" unless the intention was to cover awards which would otherwise not be covered by this definition. Strictly speaking an award passed in an arbitration which takes place in a non-convention country would not be a "domestic awards". Thus the necessity is to define a "domestic award" as including all awards made under Part I. The definition indicates that an award made in an international commercial arbitration held in a nonconvention country is also considered to be a "domestic award". 24. Section 5 provides that a judicial authority shall not intervene except where so provided in Part I. Section 8 of the said Act permits a judicial authority before whom an action is brought in a matter to refer parties to arbitration. If the matters were to be taken before a judicial authority in India it would be a Court as defined in Section 2(e). Thus if Part I was to only apply to arbitrations which take place in India the term "Court" would have been used in Sections 5 and 8 of the said Act. The Legislature was aware that, in international commercial arbitrations, a matter may be taken before a judicial authority outside India. As Part I was also to apply to international commercial arbitrations held outside India the term "judicial authority" has been used in Sections 5 and 8. 25. The beginning part of Section 28 reads as follows: "28. Rules applicable to substance of dispute.- (1) where the place of arbitration is situate in India,xxx xxx xxx xxx xxx xxx" Section 28 is in Part I. If Part I was not to apply to an arbitration which takes place outside India there would be no necessity to specify that the rules are to apply "where the place of arbitration is situate in India". It has been held in the case of National Thermal Power Corporation vs. Singer Company and others reported in : [1992] 3 SCR 106: that in international commercial arbitrations parties are at liberty to choose, expressly or by necessary implication, the law and the procedure to be made applicable. The procedure or the rules governing such arbitration may be of the country where the arbitration is being held or the body under whose aegis the arbitration is being held. All bodies which conduct arbitrations and all countries have rules and laws governing arbitrations. Thus Section 28 does not provide for rules where the place of arbitration is

out of India. 26. Mr. Sen had also submitted that Part II, which deals with enforcement of foreign awards does not contain any provision similar to Section 9 or Section 17. As indicated earlier Mr. Sen had submitted that this indicated the intention of Legislature not to apply Sections 9 and 17 to arbitrations, like the present, which are taking place in a foreign country. The said Act is one consolidated and integrated Act. General provisions applicable to all arbitrations will not be repeated in all chapters or parts. The general provisions will apply to all chapters or parts unless the statute expressly states that they are not to apply or where, in respect of a matter, there is a separate provision in a separate Chapter or Part. Part II deals with enforcement of foreign awards. Thus Sections 44 in (Chapter I) and Section 53 (in Chapter II) define foreign awards, as being awards covered by arbitrations under the New York Convention and the Geneva Convention respectively. Part II then contains provisions for enforcement of "foreign awards" which necessarily would be different. For that reason special provisions for enforcement of foreign awards are made in Part II. To the extent that Part II provides a separate definition of an arbitral award and separate provisions for enforcement of foreign awards, the provisions in Part I dealing with these aspects will not apply to such foreign awards. It must immediately be clarified that the arbitration not having taken place in India, all or some of the provisions of Part I may also get excluded by an express or implied agreement of parties. But if not so excluded the provisions of Part I will also apply to "foreign awards". The opening words of Sections 45 and 54, which are in Part II, read "notwithstanding anything contained in Part I". Such a non-obstante clause had to be put in because the provisions of Part I apply to Part II.. 27. Mr. Sen had also relied upon Article 1(2) of the UNCITRAL Model Law and had submitted that India has purposely not adopted this Article. He had submitted that the fact that India had not provided (like in the UNCITRAL Model Law) that Section 9 would apply to arbitral proceedings which take place out of India indicated the intention of the Legislature not to apply Section 9 to such arbitrations. We are unable to accept this submission. Article 1(2) of UNCITRAL Model Law reads as follows : (2) The provisions of this Law, except articles 8 9 35 and 36, apply only if the place of arbitration is in the territory of this State." (emphasis supplied) Thus Article 1(2) of UNCITRAL Model Laws uses the word "only" to emphasize that the provisions of that Law are to apply if the place of arbitration is in the territory of that State. Significantly in Section 2(2) the word "only" has been omitted. The omission of this word changes the whole complexion of the sentence. The omission of the word "only" in Section 2(2) indicates that this sub-section is only an inclusive and clarificatory provision. As stated above it is not providing that provisions of Part I do not apply to arbitration which take place outside India. Thus there was no necessity of separately providing that Section 9 would apply. 28. Now let us consider Section 9. It reads as follows:

"9. Interim measures, etc. by court.- A party may, before or during arbitral proceedings or at any time after the making of the arbitral award but before it is enforced in accordance with section 36, apply to a court:(i) for the appointment of a guardian for a minor or a person of unsound mind for the purposes of arbitral proceedings; or (ii) for an interim measure of protection in respect of any of the following matters, namely:(a) the preservation, interim custody or sale of any goods which are the subject-matter of the arbitration agreement; (b) securing the amount in dispute in the arbitration; (c) the detention, preservation or inspection of any property or thing which is the subject-matter of the dispute in arbitration, or as to which any question may arise therein and authorising for any of the aforesaid purposes any person to enter upon any land or building in the possession of any party, or authorising any samples to be taken or any observation to be made, or experiment to be tried, which may be necessary or expedient for the purpose of obtaining full information or evidence; (d) interim injunction or the appointment of a receiver; (e) such other interim measure of protection as may appear to the court to be just and convenient, and the Court shall have the same power for making orders as it has for the purpose of, and in relation to, any proceedings before it." Thus under Section 9 a party could apply to the court (a) before, (b) during arbitral proceedings or (c) after the making of the arbitral award but before it is enforced in accordance with Section 36. The words "in accordance with Section 36" can only go with the words "after the making of the arbitral award". It is clear that the words "in accordance with Section 36" can have no reference to an application made "before" or "during the arbitral proceedings". Thus it is clear that an application for interim measure can be made to Courts in India, whether or not the arbitration takes place in India, before or during arbitral proceedings. Once an Award is passed, then that award itself can be executed. Sections 49 and 58 provide that awards covered by Part II are deemed to be a decree of the Court. Thus "foreign awards" which are enforceable in India are deemed to be decrees. A domestic award has to be enforced under the provisions of Civil Procedure Code. All that Section 36 provides is that an enforcement of a domestic award is to take place after the time to make an application to set aside the award has expired or such an application has been refused. Section 9 does suggest that once an award is made an application for interim measure can only be made if the award is a "domestic award" as defined in Section 2(7) of the said Act. Thus where the Legislature wanted to restrict the

applicability of Section 9 it has done so specifically. 29. We see no substance in the submission that there would be unnecessary interference by courts in arbitral proceedings. Section 5 provides that no judicial authority shall intervene except where so provided. Section 9 does not permit any or all applications. It only permits applications for interim measures mentioned in clauses (i) and (ii) thereof. Thus there cannot be applications under Section 9 for stay of arbitral proceedings or to challenge the existence or validity of arbitration agreements or the jurisdiction of the arbitral tribunal. All such challenges would have to be made before the arbitral tribunal under the said Act. 30. Mr. Sen had also submitted that the term "arbitral award" includes an interim award. He had submitted that it would be open for the arbitral tribunal to pass interim awards and those interim awards could be enforced in India under Part II. However, there is a difference between an "interim award" and an "interim order". Undoubtedly, the arbitral tribunal could pass an interim award. But an interim order or directions passed by the arbitral tribunal would not be enforceable in India. Thus even in respect of arbitrations covered by Part II a party would be precluded from getting any interim relief. In any event, on Mr. Sen's interpretation, an award passed in arbitral proceedings held in a nonconvention country could not be enforced. Thus such a party would be left completely remediless. 31. If a party cannot secure, before or during the pendency of the arbitral proceedings, an interim order in respects of items provided in Section 9(i) & (ii) the result may be that the arbitration proceedings may themselves get frustrated e.g. by non appointment of a guardian for a minor or person of unsound mind or the subject matter of the arbitration agreement not being preserved. This could never have been the intention of the Legislature. 32. To conclude we hold that the provisions of Part I would apply to all arbitrations and to all proceedings relating thereto. Where such arbitration is held in India the provisions of Part I would compulsory apply and parties are free to deviate only to the extent permitted by the derogable provisions of Part I. In cases of international commercial arbitrations held out of India provisions of Part I would apply unless the parties by agreement, express or implied, exclude all or any of its provisions. In that case the laws or rules chosen by the parties would prevail. Any provision, in Part I, which is contrary to or excluded by that law or rules will not apply. 33. Faced with this situation Mr. Sen submits that, in this case the parties had agreed that the arbitration be as per the rules of ICC. He submits that thus by necessary implication Section 9 would not apply. In our view in such cases the question would be whether Section 9 gets excluded by the ICC Rules of Arbitration. Article 23 of ICC Rules reads as follows: "Conservatory and Interim Measures 1. Unless the parties have otherwise agreed, as soon as the file has been transmitted to it,

the Arbitral Tribunal may, at the request of a party, order any interim or conservatory measure it deems appropriate. The Arbitral Tribunal may make the granting of any such measure subject to appropriate security being furnished by the requesting party. Any such measure shall take the form of an order, giving reasons, or of an Award, as the Arbitral Tribunal considers appropriate. 2. Before the file is transmitted to the Arbitral Tribunal, and in appropriate circumstances even thereafter, the parties may apply to any competent judicial authority for interim or conservatory measures. The application of a party to a judicial authority for such measures or for the implementation of any such measures ordered by an Arbitral Tribunal shall not be deemed to be an infringement or a waiver of the arbitration agreement and shall not affect the relevant powers reserved to the Arbitral Tribunal. Any such application and any measures taken by the judicial authority must be notified without delay to the Secretariat. The Secretariat shall inform the Arbitral Tribunal thereof." 34. Thus Article 23 of the ICC rules permits parties to apply to a competent judicial authority for interim and conservatory measures. Therefore, in such cases an application can be made under Section 9 of the said Act. 35. Lastly it must be stated that the said Act does not appear to be a well drafted legislation. Therefore the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta cannot be faulted for interpreting it in the manner indicated above. However, in our view a proper and conjoint reading of all the provisions indicates that Part I is to apply also to international commercial arbitrations which take place out of India, unless the parties by agreement, express or implied exclude it or any of its provisions. Such an interpretation does not lead to any conflict between any of the provisions of the said Act. On this interpretation there is no lacunae in the said Act. This interpretation also does not leave a party remedyless. Thus such an interpretation has to be preferred to the one adopted by the High Courts of Orissa, Bombay, Madras, Delhi and Calcutta. It will therefore have to be held that the contrary view taken by these High Courts is not good law. 36. In this view of the matter we see no reason to interfere with the impugned judgment. The Appeal stands dismissed. There will be no Order as to costs throughout.