judgement:
n the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court.
In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ.
No action appears to have been taken on this request because no such record appears to have been produced before the High Court.
Such silence militates against fair adjudication of the issues.
Just and fair adjudication must not only inform the administrative side of the High Court 368 but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.
[381 C F] & CIVIL APPELLATE JURISDICTION: Civil Appeal No. 991 of 1975.
From the Judgment and Order dated 25 9 1973 of the Himachal Pradesh High Court in Civil Writ Petition No. 158/71.
Yogeshwar Prasad, A. K. Srivastava and Mrs. Rani Chhabra for the Appellant.
Dr. section Chitale, R. N. Sachthey and section K. Dhingra for Respondent No. 1. section K. Mehta, P. N. Puri and EME Anam for Respondent No. 4.
K. R. Nagaraja for Respondent No. 6.
The Judgment of the Court was delivered by DFSAI, J.
Would Article 16 of the Constitution come to the rescue and be successfully invoked by appellants, admittedly juniors in the gradation list of Subordinate Judges in the State of Himachal Pradesh to respondents 3, 4 and 5, questioning the legality and validity of their promotion to the cadre of District/Additional District & Sessions Judges ( 'DSJ/ADSJ ' for short), as also questioning the legality and validity of promotion of respondents 6 and 7 to the selection grade post of Subordinate Judge ? Uncontroverted facts are that Himachal Pradesh was a Union Territory till January 25, 1971, when at the apex of judicial hierarchy there was a Court of Judicial Commissioner.
On the introduction of the Punjab Reorganization Act, 1966, ( 'Reorganization Act ' for short) effective from November 1, 1966, certain territories were transferred and added to the Union Territory of Himachal Pradesh simultaneously extending the jurisdiction of the Court of Judicial Commissioner of Himachal Pradesh to the transferred territories.
Consequently, provision was made for allocation of persons belonging to different services in pre reorganised State of Punjab (Respondents 4 to 7 being such allocated officers) to Union Territory of Himachal Pradesh.
On May 2, 1967, the Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which continued till January 25, 1971, when statehood was conferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up.
Himachal Pradesh (Courts) Order, 1948, ( '1948 Order ' for short), was issued by the Union Government in exercise of the power conferred by sections 3 and 4 of the Extra Provincial Jurisdiction , and this Order remained in force till it was replaced by the Himachal Pradesh Subordinate Judicial Service Rules, 1962 ( '1962 Rules ' for short).
Para 16 (2) of the 1948 Order provided for the appointment of District & Sessions Judges.
The Chief Commissioner had power to appoint as many persons as he considered necessary to be District Judges.
1962 Rules appear not to have made any departure in this behalf.
Promotional avenue in Himachal Pradesh Subordinate Judicial Service moves vertically from the grass root entry as Subordinate Judge promotable as Senior Sub Judge cum Assistant Sessions Judge and then the further promotional avenue is DSJ/ADSJ.
Both the appellants were working as Senior Sub Judge cum Assistant Sessions Judge and they questioned the validity and legality of promotion of respondents 3, 4 and 5 given on May 18, 1971, as DSJ/ADSJ on the ground that the post of DSJ/ADSJ is a selection post and the criterion for selection must be merit alone, seniority being treated as thoroughly irrelevant and, therefore, all those who were within the zone of eligibility should have been considered before selecting respondents 3, 4 and 5 and this having not been done, the promotion having been given purely on the basis of seniority, their promotion is invalid.
Simultaneously they contended that same criterion would mutatis mutandis apply while giving promotion to Senior sub Judge cum Assistant Sessions Judge to selection grade post and that having not been done and the promotion having been given only on the basis of seniority, the same is invalid.
In support of the contention reliance has been placed amongst other thing on a Memorandum dated June 15, 1957, issued by the Himachal Pradesh Administration.
There is a serious controversy whether this memorandum was effective and in force on the date of impugned promotions and whether the same would apply to the case of judicial officers.
Appellants impleaded the State of Himachal Pradesh as respondent 1 and the High Court of Himachal Pradesh as respondent 2.
Though the High Court would be the most competent to throw light on the vexed question as to by what criterion it selected respondents 3, 4 and 5 for promotion to the post of DSJ/ADSJ and recommended their names for appointment to the Governor, surprisingly the High Court through its Registrar did not appear and participate in the proceedings.
Nor did the Bench hearing the matter call for the relevant files from the office of the High Court though a prayer to that effect was made in the writ petition.
370 Respondent 1 State of Himachal Pradesh filed the return to the writ as per the affidavit of Shri A. K. Goswami, Joint Secretary to the Government, Department of Personnel, Simla.
State Law Department also appears to have scrupulously kept out from the arena of controversy.
In the return it was admitted that appointments to the post of Subordinate Judges were made in accordance with the provisions of para 18 of the 1948 Order till the 1962 Rules were enacted and brought into force on April 10, 1962.
It was averred that the appointment to the post of Distt.
Judge used to be made under the provisions of para 16 (2) of the 1948 Order which conferred power on the Chief Commissioner after consultation with the Judicial Commissioner to appoint as many persons as he thought necessary to be District Judges.
It was further contended that since Himachal Pradesh attained full statehood on January 25, 1971, appointment to the post of DSJ was governed by article 233 of the Constitution and, therefore, the appointments were to be made by the Governor in consultation with the High Court and accordingly respondents 3, 4 and 5 were promoted and appointed as DSJ/ADSJ on the recommendation of the High Court.
The averment to that effect in para 12 of the writ petition was admitted in the return.
Identical position was adopted supporting the promotion to selection grade given to respondents 6 and 7.
The return leaves no room for doubt that the promotions to the post of DSJ/ADSJ were given by the Governor on the recommendation made by the High Court to the Governor and the Governor acted upon the recommendation.
It was, therefore, absolutely incumbent upon the High Court to have pointed out what criterion it adopted in selecting respondents 3, 4 and 5 for promotion before it went in search of what principle ought to be adopted in selecting persons from Sub ordinate Judicial Service for promotion to the post of DSJ/ADSJ.
There is not even a whimper as to what criterion was adopted by the High Court in formulating its recommendations both for promotion as DSJ/ADSJ and to selection grade in the scale of Subordinate Judge cum Assistant Sessions Judge, the latter having been given by the High Court itself evidenced by the notification dated March 19, 1971.
Relevant provisions of the Constitution bearing on the question of appointment of District Judges and control of the High Court over the subordinate courts may be noticed.
Article 233 reads as under: "233.
Appointment of district judges (1) Appointments of persons to be, and the posting and promotion of, 371 district judges in any State shall be made by the Governor of the State in consultation with the High Court exercising jurisdiction in relation to such State.
(2) A person not already in the service of the Union or of the State shall only be eligible to be appointed a District Judge if he has been for not less than seven years an advocate or a pleader and is recommended by the High Court for appointment".
Article 235 reads as under: "235.
Control over subordinate courts The control over district courts and courts subordinate thereto including the posting and promotion of, and the grant of leave to, persons belonging to the judicial service of a State and holding any post inferior to the post of district judge shall be vested in the High Court, but nothing in this article shall be construed as taking away from any such person any right of appeal which he may have under the law regulating the conditions of his service or as authorising the High Court to deal with him otherwise than in accordance with conditions of his service prescribed under such law".
Article 236 provides that in Chapter VI of Part VI of the Constitution the expression 'District Judge ' includes a judge of a city civil court, additional district judge, joint district judge, assistant district judge, chief judge of a small cause court, chief presidency magistrate, additional chief presidency magistrate, sessions judge, additional sessions judge and assistant sessions judge.
The expression 'Judicial Service ' in the chapter means a service consisting exclusively of persons intended to fill the post of district judge and other civil judicial posts inferior to the post of district judge.
Article 309 confers power on the legislature by appropriate legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the union or of a State and till such legislation is enacted the power is conferred by the proviso to Article 309 on the President and the Governor, as the case may be, to make rules in that behalf.
At the outset it must be noticed that no Rules appear to have been enacted under article 309 proviso regulating recruitment and conditions of service of DSJ/ADSJ.
Undoubtedly such rules will have to be in conformity with other provisions of the Constitution such as article 16, and the provisions included in Chapter VI of Part VI of the 372 Constitution.
Till such rules are framed appointment to the post of DSJ/ADSJ will have to be made in accordance with the provisions of articles 233 and 235 of the Constitution.
Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court.
In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight.
Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court.
Therefore, when promotion is to be given to the post of District Judge from amongst those belonging to subordinate judicial service, the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person.
The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion.
Similarly when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the Minister or the Governor.
In Chandra Mohan vs State of Uttar Pradesh & Ors.,(1) a Constitution Bench of this Court observed as under: "The constitutional mandate is clear.
The exercise of the power of appointment by the Governor is conditioned by his consultation with the High Court, that is to say, he can only appoint a person to the post of District Judge in consultation with the High Court.
The object of consultation is apparent.
The High Court is expected to know better than the Governor in regard to the suitability or otherwise of a person, belonging either to the 'judicial service ' or to the Bar, to be appointed as a district judge.
Therefore, a duty is enjoined on the Governor to make the appointment in consultation with a body which is the appropriate authority to give advice to him".
373 This view was reaffirmed in Chandramouleshwar Prasad vs Patna High Court & Ors.(1) observing: "The High Court is the body which is intimately familiar with the efficiency and quality of officers who are fit to be promoted as District Judges.
The High Court alone knows their merits as also demerits".
In A. Panduranga Rao vs State of Andhra Pradesh & Ors.
(2) this Court observed that there are two sources of recruitment to the post of District Judge, viz., judicial service in subordinate rank and members of the Bar.
In either case the consultation would assume the form of recommendation made by the High Court.
It is thus incontrovertible that appointment to the post of DSJ/ADSJ in Himachal Pradesh will have to be made in accordance with the provisions contained in article 233.
If any rules are enacted under article 309 for regulating recruitment and conditions of service of DSJ/ADSJ, the rules will have to be in conformity with article 233 and if they violate the constitutional mandate of article 233 of the rules will be held ultra vires as succinctly laid dow in Chandra Mohan 's case (supra).
To be precise so as to leave no ambiguity, in that case rule 13 of U.P. Higher Judicial Services Rules provided for procedure for selection by promotion to the post of District Judge from the subordinate judicial service and amongst others, the procedure provided for selection to be made by a Committee consisting of two judges of the High Court and the Judicial Secretary to Government.
This rule was held to be ultra vires as being violative of article 233 inasmuch as the High Court could be said to have abdicated its constitutional function of making recommendation to an outside authority not known to Constitution.
Turning to the facts of the case, save and except the 1948 Order no rules appear to have been enacted regulating recruitment and conditions of service DSJ/ADSJ in Himachal Pradesh.
Therefore, appointment to the post of DSJ/ASDJ in Himachal Pradesh will have to be made in conformity with article 233.
Even if para 16(2) of the 1948 Order held the field it merely provided for appointment by the Chief Commissioner (now replaced by the Governor) in consultation with the Judicial Commissioner (now replaced by the High Court).
That provision would be in conformity with article 233.
The High Court in this case recommended the names of respondents 3, 4 and 5 for promotion to the post of DSJ/ADSJ as averred by appellants 374 themselves and the Governor accepted the recommendation and the appointments were made consistent with the recommendation.
It cannot be gainsaid that this is in conformity with article 233 and the constitutional mandate is complied with and no statutory rule in the absence of any could be said to have been violated by promotion being given in this manner.
In our opinion the matter should have ended there.
The High Court, however, completely obliterating from its mind the criterion it must have followed in making the recommendation which prima facie appears to be one of the seniority cum merit, under took an exercise of a search of what ought to be the criterion for promotion from the subordinate judicial service to the responsible post of District Judge.
The High Court framed the question thus: "The first question is whether in law appointment to the post of District Judge/Addl.
District Judge must be made by selection of most meritorious officer upon an appraisal of the comparative merit of eligible subordinate judges or is it sufficient that it is made on the basis of seniority cum fitness ?" We find it a bit difficult to follow and appreciate how the High Court could proceed on such a fruitless and bizarre enquiry unconnected with and wholly unnecessary in the fact of the case before it.
The same High Court on its administrative side must have known its own mind when while making recommendation for promotion, the principle or criterion it adopted.
The High Court must be presumably aware even while making recommendation for promotion to the post of DSJ/ADSJ that it was a responsible post and merit alone must guide it in making recommendation.
Presumably the full court made the recommendation.
The High Court took notice of the fact that there were no rules at the relevant time in Himachal Pradesh formulating the principle or criterion on which such promotion as Distt.
Judge was to be recommended.
If thus there was no rule and the High Court proceeded to adopt merit cum seniority, or seniority cum fitness ' as a criterion for recommending promotions from subordinate judges to the post of district judge neither of which appears to violate either article 233 or article 16 or any other constitutional mandate or any statutory rule, it would be futile to proceed to examine what ought or possible criterion should really govern the decision for recommending persons from subordinate judicial service for promotion to the post of DSJ/ADSJ.
If the High Court felt that the post of district judge is a very responsible post and merit alone should govern promotion from subordinate judicial service to the post of district judge it was 375 incumbent upon the High Court to propose necessary rules and get them enacted under article 309.
That appears not to have been done.
Alternatively, High Court should while making recommendation for promotion put the principle of merit cum seniority in the forefront and act accordingly.
The High Court and the Governor appear to be agreed that the recommendation for promotion made was proper and the same was accepted without a demur.
In our opinion it is then futile to examine what ought to be the criterion for such promotion, unless there is no discrenible principle on which recommendation can be justified or the recommendation is attacked as arbitrary, malafide or vitiated by bias.
There is no such allegation.
The High Court after referring to some books on public administration and public services and keeping in view the status and responsibility attaching to the post of District Judge, concluded as under: "I would therefore hold that having regard to the duties and responsibilities attaching to the post of District Judge and the position occupied by the District Judge in the judicial hierarchy, appointment to that post must be made by selection of the most meritorious officer upon an appraisal of the comparative merit of eligible Subordinate Judges.
In my opinion, the principle of seniority cum fitness would not be a valid principle".
It is difficult to appreciate how such a principle can be enunciated in abstract.
If for regulating recruitment and conditions of service of district judges it was considered essential by the High Court that promotion to the post of District Judge from the subordinate judicial service shall be on merit alone and seniority having no place in the consideration unless two are considered equally meritorious, it was incumbent upon the High Court to have proposed such a rule to be enacted under article 309.
Neither the High Court nor the Government have proposed such rules.
And surprisingly, after reaching this conclusion the High Court rejected the writ petition, frankly, on an untenable ground that the petitioners have failed to show that if they had been considered at the time when the impugned promotions were made they would have stood a fair choice of being preferred over respondents 3, 4 and 5.
This is an unsustainable conclusion.
If the High Court is otherwise right that when promotion is to be given on the criterion of merit alone, all those in the zone of selection or field of eligibility must be simultaneously considered and the best among them should be selected and recommended for promotion.
The silence of the High Court on the most important question as to what 376 criterion it adopted while formulating its recommendation coupled with the fact that those at the top of gradation list according to their seniority were recommended is eloquent enough to conclude that principle of seniority cum merit was adopted by the High Court.
What the High Court appears to have done is as and when the vacancy occurred the seniormost in the cadre of subordinate judges was considered and if found fit was recommended.
The present grievance is by persons junior to respondents 3, 4 and 5 whose promotion is questioned and the grievance is that they were not considered along with other eligible.
It is impossible to expect a person to aver that if along with others eligible he was considered he would have been selected.
Right to be considered for selection is distinct from an assertion that if considered the person so considered would of necessity be selected and then alone his grievance that he was not considered even though eligible could be examined by the Court.
It is, however, not necessary to dilate on this point because in our opinion as the situation stood at the time of the impugned recommendation for promotion and the consequent appointments made by Governor there was no such rule providing merit alone as the criterion for promotion and the High Court, though it does not reveal its mind, appears to have proceeded on the criterion of seniority cum merit which is a valid criterion under article 16 and not violative of article 233 and the appellants, therefore, who were junior to respondents 3, 4 and 5, cannot be heard to make a grievance about the promotion of respondents 3, 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them.
It was, however, said that Office Memorandum No. F.1/4/55 RPS dated May 16, 1957, issued by the Government of India, Ministry of Home Affairs, was applicable to the services including subordinate judicial service under the Union Territory of Himachal Pradesh before it attained statehood and that even if an office memorandum of the Government of India may not be directly applicable, it appears to have been adopted by the Union Territory of Himachal Pradesh because the same was issued by the Assistant Secretary to the Himachal Pradesh Administration as per his Memorandum No. Apptt.1/350/57, dated June 15, 1957, with a request that the contents of the Memorandum may also be brought to the notice of each member of the Departmental Promotion Committee for Class I, II and III posts constituted for each Department under the Union Territory of Himachal Pradesh.
This Memorandum, appellants say, prescribes guideline and lays down criterion in giving promotions to posts which are styled as 'selection posts ' as also to selection grades.
Broadly 377 stated, the guidelines are that appointments to selection post and selection grade should be made on the basis of merit with regard to seniority only to the extent indicated in the memorandum.
It further provided that Departmental Promotion Committee or other selecting authority should first decide the field of choice, i.e., the number of eligible officers awaiting promotion who should be considered for inclusion in the selection list provided, however, that an officer of outstanding merit may be included in the list of eligible candidates even if he is outside the normal field of choice.
Field of choice was to be confined to five or six times the number of vacancies expected within a year.
It was indicated that those found unfit should be excluded.
Even in respect of those who are included in the field of choice each officer should be classified as outstanding, very good, good, on the basis of merit as determined by the respective records of service and thereafter a select list should be drawn up by placing the names in the order of merit as indicated earlier without disturbing the seniority inter se within each cadre.
Promotion should thereafter be confined, it was suggested, to the select list and by following the order in which the names are finally arranged.
It was considered desirable to periodically revise the select list.
Appellants contend that the memorandum laying these guidelines was issued, no doubt, by the Government of India when Himachal Pradesh was a Union Territory and, therefore, Government of India was competent to issue such directions in respect of services under the Union Territory of Himachal Pradesh but even if there is any doubt, once the same was adopted by Himachal Pradesh Administration, in the absence of any statutory rule it is binding and any promotion made in breach or violation of the prescribed guidelines would be invalid.
There is nothing to show that that office memorandum was endorsed to the High Court and that the Administration suggested that the High Court should adopt it while making recommendations for promotion to the post of DSJ/ADSJ.
In the absence of a return by the High Court to writ petition it is difficult to say whether the Administration desired that the guidelines prescribed in the memorandum should also be accepted or adopted by the High Court.
In the return filed on behalf of the Himachal Pradesh Government it has been stated that the memorandum was received from the Government of India and that the memorandum did contain some guiding principles for appointment to selection posts and selection grade but they were merely directory in nature and were only issued for the sake of guidance implying that if the facts and circumstances of any particular case so warranted, the concerned authority could make deviation therefrom.
It was, further stated that after Himachal Pradesh attained statehood on 378 January 25, 1971, the memorandum ceased to have any force and in the absence of any other statutory rule promotions and appointments to the posts of DSJ/ADSJ can only be made in conformity with article 233 of the Constitution and any other direction to the contrary would be void and of no effect.
The High Court disposed of the memorandum by a cryptic observation that there has been a serious debate before the Court on the question whether the direction contained in the aforesaid memorandum had to be complied with by the High Court and the State Government when the impugned appointments were made.
After noting this debate the High Court did not proceed to dispose of the contention and did not record a finding whether the memorandum was or was not required to be complied with by the High Court while making recommendations for promotion to the posts of DSJ/ADSJ.
In the absence of any material as to whether the memorandum was endorsed to the High Court or whether the High Court adopted or acted upon the same or not it is difficult to accept that it was binding on the High Court and any recommendation for promotion made in breach or contravention thereof would render the promotion invalid.
Even apart from this, the impugned promotions were made on May 18, 1971, after Himachal Pradesh became a full fledged State with a High Court at the apex of judicial and the memorandum would cease to have any force or binding effect.
The same memorandum was relied on in support of the contention that in giving promotion to selection grade to respondents 6 and 7 the guidelines in the memorandum of 1957 were not only not followed but the promotions were made completely overlooking the guidelines or in contravention of the guidelines.
Reasons for rejecting the efficacy of memorandum in relation to promotion to the post of DSJ/ADSJ will mutatis mutandis apply and the contention will have to be negatived.
This contention must also be negatived for the additional reason that promotion from the post of subordinate judge to the selection grade post of subordinate judge is a promotion from one post in subordinate judicial service to another post in the same service.
This promotion would definitely be under the control of the High Court as provided in article 235 of the Constitution.
No statutory rule was pointed out as to how such promotion was to be given.
In the absence of a statutory rule the High Court would be the sole authority to decide the question of promotion in exercise of its control under article 235.
By article 235 the High Court has been vested with complete control over the subordinate courts and this exercise of control comprehends the power to decide eligibility for promotion 379 from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJ/ADSJ when article 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court.
But when it comes to promotion in the judicial service under the Distt.
Judge the High Court would be the sole authority to decide the question of promotion (see The High Court, Calcutta vs Amal Kumar Roy).
This becomes manifestly clear from State of Assam & Anr.
vs Kuseswar Saikia & Ors.
In that case one Upendra Nath Rajkhowa was promoted by the Governor as Addl.
District Judge purporting to act under article 233 and a writ of quo warranto was sought challenging the appointment on the ground that the promotion as Addl.
District Judge could only be made by the High Court acting under article 235.
It was also contended that his further appointment as District Judge by the Governor would be void.
It was so held by the High Court.
On appeal when the matter came to this Court, analysing article 233 this Court held as under: "It means that appointment as well as promotion of persons to be District Judges is a matter for the Governor in consultation with the High Court and the expression 'District Judge ' includes an additional district judge and an additional sessions judge.
It must be remembered that District Judges may be directly appointed or may be promoted from the subordinate ranks of the judiciary.
The article is intended to take care of both.
It concerns initial appointment and initial promotion of persons to be either District Judges or any of the categories included in it.
Further promotion of District Judges is a matter of control of the High Court.
What is said of District Judges here applies equally to additional District Judges and Additional Sessions Judges.
" This Court accordingly held that the promotion of Rajkhowa as Addl.
District Judge by the Governor was made under article 233 and that it was a valid appointment.
Accordingly the appeal was allowed.
It thus becomes crystal clear that while promotion to the post of District Judge which includes various posts as set out in article 236, is with the Governor, the High Court alone would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the District 380 Judge.
Appellants contend that promotion of respondents 6 and 7 from the rank of subordinate judge to the selection grade post of subordinate judge is invalid as being in contravention first of the memorandum and secondly such promotion must only be on the basis of merit and not seniority.
This contention must fail because no statutory rule is pointed out as to how the promotion was to be given and the High Court having given the promotion it was most competent to do so.
The challenge must accordingly fail.
Appellants also contended that even if the criterion for recommendation for promotion to the post of DSJ/ADSJ is seniority cum merit, respondents 3, 4 and 5 did not deserve to be promoted because their unfitness stares in the face inasmuch as they were not considered suitable for confirmation as subordinate judge as and when their turn came for confirmation and that would show that they were not men of merits.
It was pointed out that respondents 4 and 5 were not confirmed due to their unsatisfactory performance in discharge of duties while their colleagues in the same batch were confirmed earlier.
It was further pointed out that respondent 4 was not even allowed to cross the efficiency bar for a period of about 10 years and that he was allowed to cross it for the first time in 1970.
These averments have hardly any relevance.
The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under article 235.
In fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court.
It is not necessary to dilate on this point because it is concluded by a decision of this Court in State of Assam & Anr.
vs section N. Sen & Anr., wherein this Court held that under Art 235 of the Constitution the power of promotion of persons holding posts inferior to that of the District Judge being in the High Court, the power to confirm such promotees is also in the High Court and any rule in conflict with article 235 must be held to be invalid.
This view was affirmed in State of Bihar vs Madan Mohan Prasad & Ors.
This Court held that since article 235 of the Constitution vests the power of confirmation in the High Court, the power of determining the seniority in the service is also with the High Court.
Of course, in doing so the High Court is bound to act in conformity with any rules made by the Governor under the provisions of article 309 of the Constitution, if there be a rule.
381 The administrative side of the High Court having chosen not to participate in the proceedings this Court must dispose of the appeal on the scanty material available on record.
On the available material the appellants failed to establish violation of any existing rule, statutory or otherwise, governing promotion of persons to the post of DSJ/ADSJ as there is no such rule.
The impugned appointments appear to have been made by promotion of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by article 233 and in the absence of any other valid rule, promotions made on the generally well accepted principle of seniority cum merit appear to be valid.
There is, therefore, no substance in the contention that the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and the promotion of respondents 6 and 7 to the selection grade post were in any manner invalid.
Before we conclude it must be pointed out that where the Government acts on the recommendation of the High Court and the action of the Government is challenged by way of a writ petition, in order to facilitate appreciation of issues raised, the administrative side of the High Court, if joined as a party, must appear and place before the Court the entire record for a fair and judicial adjudication of the issues on the judicial side of the High Court.
In this case the appellants in their writ petition requested the High Court to produce the proceedings which culminated in the recommendation of the High Court to the Governor for appointment of respondents 3, 4 and 5 as DSJ/ADSJ.
No action appears to have been taken on this request because no such record appears to have been produced before the High Court.
Such silence militates against fair adjudication of the issues.
Just and fair adjudication must not only inform the administrative side of the High Court but in order to put its record beyond the slightest pale of controversy it must avoid any secrecy in this behalf consistent with public interest.
If the High Court felt that the criterion for promotion to the post of District Judge being a post of status and responsibility in the judicial hierarchy must only be merit, seniority having no or very little place, it was incumbent upon the High Court to propose such a rule to be made under article 309 or adopt to itself such a rule and conform to it.
But if the High Court on the one hand recommended respondents 3, 4 and 5 according to their seniority as it appears to be the case, when the vacancies occurred and accepted their appointment and on the other hand when such appointments were challenged it went in search of a principle on the basis of which promotion to the 382 post of DSJ/ADSJ should be given, it is rather difficult to reconcile these diametrically opposite actions.
The High Court also was in error in proceeding to reject the appellants petition without recording a finding regarding the basis on which recommendations were made by it.
We have, however, on the basis of the material before us tried to resolve the said question.
Having examined the matter in all its ramifications we are no substance in this appeal and the same is dismissed with no order as to costs.
S.R. Appeal dismissed.

summary/full:
Himachal Pradesh was a Union Territory till January 25, 1971, when at the apex of the Judicial hierarchy there was a court of Judicial Commissioner.
On the introduction of the Punjab Reorganization Act, 1966 effective from November 1, 1966, certain territories were transferred and added to the Union Territory of Himachal Pradesh simultaneously extending the jurisdiction of the Court of Judicial Commissioner of Himachal Pradesh to the transferred territories.
Consequently provision was made for allocation of persons belonging to different services in pre reorganized State of Punjab (Respondent 4 to 7 being such officers) to Union Territory of Himachal Pradesh.
On May 2, 1967, the judiciary of Union Territory of Himachal Pradesh was placed under the jurisdiction of Delhi High Court which continued till January 25, 1971, when state hood was conferred on the Union Territory and a full fledged High Court of Himachal Pradesh was set up.
Promotional avenues in Himachal Pradesh Subordinate Judicial service moved vertically from the grass root entry as subordinate judge promoted as senior sub Judge cum Assistant Sessions Judge and when the further promotional avenue is DSJ/ADSJ.
They were initially governed by the Himachal Pradesh (Courts) Order, 1948 issued by the Union Government in exercise of the power conferred by sections 3 and 4 of the Extra Provincial Jurisdiction Act, 1947.
This order remained in force till it was replaced by the Himachal Pradesh Subordinate Judicial Service Rules, 1962.
Rule 16(2) of the 1948 Order provided for the appointment of District and Sessions Judges.
The Chief Commissioner had power to appoint as many persons as he considered necessary to be District Judges.
In the 1962 Rules, there was no change in this regard.
Effective from January 25, 1971 when statehood was conferred on the Union Territory of Himachal Pradesh, the Chief Commissioner was replaced by the Governor and the Judicial Commissioner by High Court.
Both the appellants were working as Senior Sub Judge cum Assistant Sessions Judge and they questioned the validity and legality of promotion of respondents 3, 4 and 5 given on May 18, 1971 as DSJ/ADSJ on the ground that the 365 post of DSJ/ADSJ is a selection post and the criterion for selection must be merit alone, seniority being treated as thoroughly irrelevant and therefore, all those who were within the zone of eligibility should have been considered before selecting respondents 3, 4 and 5 and this having not been done the promotion having been purely as the basis of seniority, their promotion is invalid.
Simultaneously they contended that same criterion would mutatis mutandis apply while giving promotion to senior sub Judge cum Assistant Sessions Judge to selection grade post and that having not been done and the promotion having been given only on the basis of seniority, the same is invalid, as per the memorandum dated June 15, 1957 issued by the Himachal Administration.
The High Court through its Registrar did not appear and participate in the proceedings, though made a party.
Nor did the Bench hearing the matter call for the relevant files from the office of the High Court though a prayer was made to that effect in the writ petition.
The State of Himachal Pradesh, Respondent No. 1 contended that appointment to the post of D.S.J. was governed by article 233 of the Constitution under which appointments were to be made by the Governor in consultation with the High Court and since respondents 3, 4 and 5 were promoted and appointed as DSJ/ADSJ on the recommendation of the High Court, the appointments were not open to challenge.
The High Court accepted this plea of the State Government and dismissed the writ petitions.
Hence the appeal by special leave.
Dismissing the appeal the Court, ^ HELD: (1) Article 309 of the Constitution confers power on the legislature by appropriate legislation to regulate the recruitment and conditions of service of persons appointed to public services and posts in connection with the affairs of the Union or of a State and till such legislation is enacted the power is conferred by the proviso to Article 309 of the President and the Governor, as the case may be, to make rules in that behalf.
Undoubtedly such rules will have to be in conformity with other provisions of the Constitution such as Article 16 and the provisions included in Chapter VI of Part VI of the Constitution.
No rules have been enacted under Article 309 proviso regulating the recruitment and conditions of service of DSJ/ADSJ till such rules are framed appointment to the post of DSJ/ADSJ will have to be made in accordance with the provisions of Articles 233 and 235 of the Constitution.
[371 F H, 372 A] Article 233 confers power on the Governor of the State to appoint persons either by direct recruitment or by promotion from amongst those in the judicial service as District Judges but this power is hedged in with the condition that it can be exercised by the Governor in consultation with the High Court.
In order to make this consultation meaningful and purposive the Governor has to consult High Court in respect of appointment of each person as District Judge which includes an Additional District Judge and the opinion expressed by the High Court must be given full weight.
Article 235 invests control over subordinate courts including the officers manning subordinate courts as well as the ministerial staff attached to such courts in the High Court.
Therefore, when promotion is to be given to the post of District Judge from amongst these 366 belonging to subordinate judicial service, the High Court unquestionably will be competent to decide whether a person is fit for promotion and consistent with its decision to recommend or not to recommend such person.
The Governor who would be acting on the advice of the Minister would hardly be in a position to have intimate knowledge about the quality and qualification of such person for promotion.
Similarly, when a person is to be directly recruited as District Judge from the Bar the reasons for attaching full weight to the opinion of the High Court for its recommendation in the case of subordinate judicial service would mutatis mutandis apply because the performance of a member of the Bar is better known to the High Court than the Minister or the Governor.
[372 A F] Chandra Mohan vs State of Uttar Pradesh at 83, Chandramouleshwar Prasad vs Patna High Court & Ors. ; and A. Panduranga Rao vs State of Andhra Pradesh ; ; followed.
Right to be considered for selection is distinct from an assertion that if considered the person so considered would of necessity be selected and then alone his grievance that he was not considered even though eligible could be examined by the court.
And it is impossible to expect a person to aver that if along with others eligible he was considered he would have been selected.
[376 B C] In the instant case, as the situation stood at the time of the impugned recommendations for promotion and the consequent appointment made by Governor there was no such rule providing merit alone as the criterion for promotion and the High Court, though it does not reveal its mind, appears to have proceeded on the criterion of seniority cum merit which is a valid criterion under Article 16 and not violative of article 233 and the appellants, therefore, who were juniors to respondents 3, 4 and 5 cannot be heard to make a grievance about the promotion of respondents 3, 4 and 5 who as and when their turn came were considered and on being found fit were recommended for promotion and the Governor appointed them.
[376 C E] 3.
It is true that the Office Memorandum No. F.1/4/55/RPS dated May 16, 1957, issued by the Government of India Ministry of Home Affairs did contain certain guidelines laying down criterion in giving promotions to selection posts.
In the absence of any material as to whether the Memorandum was endorsed to the High Court or whether the High Court adopted or acted upon the same or not it is difficult to accept that it was binding on the High Court and any recommendation for promotion made in breach of contravention thereof would render the promotion invalid.
Even apart from this, the impugned promotions were made on May 18, 1971, after Himachal Pradesh became a full fledged State with a High Court at the apex of judiciary and the memorandum would cease to have any force or binding effect.
[377 G, 378 C E] 4.
Promotion from the post of subordinate Judge to the selection grade post of subordinate Judge is a promotion from one post in subordinate judicial service to another post in the same service.
This promotion would definitely be under the control of the High Court as provided in article 235 of the Constitution.
In the absence of a statutory rule, the High Court would be the sole authority to decide the question of promotion in exercise of its control under article 235.
By article 235 the High Court has been vested with complete 367 control over the subordinates courts and this exercise of control comprehends the power to decide eligibility for promotion from one post in the subordinate judicial service to higher post in the same service except where one reaches the stage of giving promotion as DSJ/ADSJ when article 233 would be attracted and the power to give promotion would be in Governor hedged in with the condition that the Governor can act after consultation with the High Court which has been understood to mean on the recommendation of the High Court.
But when it comes to promotion in the judicial service under the Distt.
Judge the High Court would be the sole authority to decide the question of promotion.
[378 F H, 379 A B] While promotion to the post of Distt.
Judge which includes various posts as set out in Art 236, is with the Governor, the High Court would be competent to decide the promotion from one post in subordinate judicial service to any higher post in subordinate judicial service under the District Judge.
In the present case promotions of respondents 6 and 7 from the rank of subordinate Judge to the selection grade post of subordinate Judge is also valid.
[379 G H, 380 A] High Court of Calcutta vs Amal Kumar Roy ; at 454; State of Assam & Anr.
vs Kuseswar Saikia 5.
The power to confirm any one in the subordinate judicial service vests in the High Court in exercise of the control vested in the High Court under article 235; in fact the power to promote to various posts in the subordinate judicial service under the District Judge comprehends also the power to confirm and that vests in the High Court.
[380 D E] The impugned appointments were made by promotion as DSJ/ADSJ of those belonging to subordinate judicial service by the Governor on the recommendation of the High Court as envisaged by article 233 and in the absence of any other valid rule promotion made on the generally well accepted principle of seniority cum merit is valid.
Therefore the promotion of respondents 3, 4 and 5 to the post of DSJ/ADSJ and promotions of respondents 6 and 7 to the selection grade post are valid.
[381 A C] State of Assam & Anr.
vs section N. Sen & Anr. ; ; State of Bihar vs Madan Mohan Prasad & Ors. ; ; followed.


dataset_name: IN-Abs

summary/full:
The appellant herein, Sri Gurbaksh Singh Sibbia was a Minister of Irrigation and Power in the Congress Ministry of the Government of Punjab.
Grave allegations of political corruption were made against him and others whereupon applications were filed in the High Court of Punjab and Haryana under section 438 of the Criminal Procedure Code, praying that the appellants be directed to be released on bail, in the event of their arrest on the aforesaid charges.
Considering the importance of the matter, a learned single Judge referred the applications to a Full Bench, which by its judgment dated September, 13, 1977 dismissed them, after summarising, what according to it is the true legal position, of section 438 of the Code of Criminal Procedure, 1973 (Act 2 of 1974) thus: (1) The power under Section 438, Criminal Procedure Code, is of an extra ordinary character and must be exercised sparingly in exceptional cases only.
(2) Neither Section 438 nor any other provision of the Code authorises the grant of blanket anticipatory bail for offences not yet committed or with regard to accusations not so far levelled.
(3) The said power is not unguided or uncanalised but all the limitations imposed in the preceding Section 437, are implicit therein and must be read into Section 438.
(4) In addition to the limitations mentioned in Section 437, the petitioner must make out a special case for the exercise of the power to grant anticipatory bail.
(5) Where a legitimate case for the remand of the offender to the police custody under Section 167(2) can be made out by the investigating agency or a reasonable claim to secure incriminating material from information likely to be received from the offender under Section 27 of the Evidence Act can be made out, the power under Section 438 should not be exercised.
(6) The discretion under Section 438 cannot be exercised with regard to offences punishable with death or imprisonment for life unless the Court at that very stage is satisfied that such a charge appears to be false or groundless.
384 (7) The larger interest of the public and State demand that in serious cases like economic offences involving blatant corruption at the higher rungs of the executive and political power, the discretion under Section 438 of the Code should not be exercised; and (8) Mere general allegations of mala fides in the petition are inadequate.
The court must be satisfied on materials before it that the allegations of mala fides are substantial and the accusation appears to be false and groundless.
The argument that the appellants were men of substance and position who were hardly likely to abscond and would be prepared willingly to face trial was rejected by the Full Bench with the observation that to accord differential treatment to the appellants on account of their status will amount to negation of the concept of equality before the law and that it could hardly be contended that every man of status, who was intended to be charged with serious crimes including the one under section 409 was punishable with life imprisonment, "was entitled to knock at the door of the Court for anticipatory bail".
The possession of high status, according to the Full Bench, is not only an irrelevant consideration for granting anticipatory bail, but is, if anything, an aggravating circumstance.
Hence the appeals by special leave.
The appellants contended: (a) The power conferred by section 438 to grant anticipatory bail is "not limited to the contigencies" summarised by the High Court; (b) The power to grant anticipatory bail ought to be left to the discretion of the Court concerned, depending on the facts and circumstances of each particular case; (c) Since the denial of bail amounts to deprivation of personal liberty; Courts should lean against the imposition of unnecessary restrictions on the scope of Section 438, when no such restrictions are imposed by the legislature in the terms of that section (d) Section 438 is a procedural provision which is concerned with the personal liberty of an individual who has not been convicted of the offence in respect of which he seeks bail and who must be presumed to be innocent.
The validity of that section must accordingly be examined by the test of fairness and which is implicit in Article 21.
If the legislature itself were to impose an unreasonable restriction could have been struck down as being violative of Article 21.
Therefore, while determining the scope of section 438, the Court should not impose any unfair or unreasonable limitation on the individual 's right to obtain an order of anticipatory bail.
Imposition of an unfair or unreasonable limitation would be violative of Article 21 irrespective of whether it is imposed by legislation or by judicial decision.
Allowing the appeals in part, the Court, ^ HELD: 1.
The society has a vital stake in both of these interests namely, personal liberty and the investigational power of the police, though their relative importance at any given time depends upon the complexion and restraints of political conditions.
The Court 's task is how best to balance these interests while determining the scope of section 438 of the Code of Criminal Procedure, 1973.
[393 C D] 2.
The High Court and the Court of Session should be left to exercise their jurisdiction under section 438 by a wise and careful use of their discretion 385 which by their long training and experience, they are ideally suited to do.
The ends of justice will be better served by trusting these courts to act objectively and in consonance with principles governing the grant of bail which are recognised over the years, than by divesting them of their discretion which the legislature has conferred upon them, by laying down inflexible rules of general application.
It is customary, almost chronic, to take a statute as one finds it on the ground that, after all, "the legislature in its wisdom" has thought it fit to use a particular expression.
A convention may usefully grow whereby the High Court and the Court of Session may be trusted to exercise their discretionary powers in their wisdom, especially when the discretion is entrusted to their care by the legislature in its wisdom.
If they err, they are liable to be corrected.
[417 B D] 3.
Section 438(1) of the Code lays down a condition which has to be satisfied before anticipatory bail can be granted.
The applicant must show that he has "reason to believe" that he may be arrested for a non bailable offence.
The use of the expression "reason to believe" shows that the belief that the applicant may be so arrested must be founded on reasonable grounds.
Mere 'fear ' is not 'belief ', for which reason it is not enough for the applicant to show that he has some sort of a vague apprehension that some one is going to make an accusation against him, in pursuance of which he may be arrested.
The grounds on which the belief of the applicant is based that he may be arrested for a non bailable offence, must be capable of being examined by the court objectively, because it is then alone that the court can determine whether the applicant has reason to believe that he may be so arrested.
Section 438(1), therefore, cannot be invoked on the basis of vague and general allegations, as if to arm oneself in perpetuity against a possible arrest.
Otherwise, the number of applications for anticipatory bail will be as large, as, at any rate, the adult populace.
Anticipatory bail is a device to secure the individual 's liberty; it is neither a passport to the commission of crimes nor a shield against any and all kinds of accusation, likely or unlikely.
[417 E H, 418 A] Secondly, if an application for anticipatory bail is made to the High Court or the Court of Session it must apply its own mind to the question and decide whether a case has been made out for granting such relief.
It cannot leave the question for the decision of the Magistrate concerned under Section 437 of the Code, as and when an occasion arises.
Such a course will defeat the very object of Section 438.
[418 A B] Thirdly, the filing of a First Information Report is not a condition precedent to the exercise of the power under Section 438.
The imminence of a likely arrest founded on a reasonable belief can be shown to exist even if an F.I.R. is not yet filed.
[418 B C] Fourthly, anticipatory bail can be granted even after an F.I.R. is filed, so long as the applicant has not been arrested.
[418 C] Fifthly, the provisions of Section 438 cannot be invoked after the arrest of the accused.
The grant of "anticipatory bail" to an accused who is under arrest involves a contradiction in terms, in so far as the offence or offences for which he is arrested, are concerned.
After arrest, the accused must seek his remedy under Section 437 or Section 439 of the Code, if he wants to be released on bail in respect of the offence or offences for which he is arrested.
[418 C E] 386 4.
However, a "blanket order" of anticipatory bail should not generally be passed.
This flows from the very language of the section which requires the appellant to show that he has "reason to believe" that he may be arrested.
A belief can be said to be founded on reasonable grounds only if there is something tangible to go by on the basis of which it can be said that the applicant 's apprehension that he may be arrested is genuine.
That is why, normally, a direction should not issue under Section 438(1) to the effect that the applicant shall be released on bail "whenever arrested for which ever offence whatsoever".
That is what is meant by a 'blanket order ' of anticipatory bail, an order which serves as a blanket to cover or protect any and every kind of allegedly unlawful activity, in fact any eventuality, likely or unlikely regarding which, no concrete information can possibly be bad.
The rationale of a direction under Section 438(1) is the belief of the applicant founded on reasonable grounds that he may be arrested for a non bailable offence.
It is unrealistic to expect the applicant to draw up his application with the meticulousness of a pleading in a civil case and such is not requirement of the section.
But specific events and facts must be disclosed by the applicant in order to enable the court to judge of the reasonableness of his belief, the existence of which is the sine qua non of the exercise of power conferred by the section.
[418 E H, 419 A] Apart from the fact that the very language of the statute compels this construction, there is an important principle involved in the insistence that facts, on the basis of which a direction under Section 438(1) is sought, must be clear and specific, not vague and general.
It is only by the observance of that principle that a possible conflict between the right of an individual to his liberty and the right of the police to investigate into crimes reported to them can be avoided.
[419 A C] A blanket order of anticipatory bail is bound to cause serious interference with both the right and the duty of the police in the matter of investigation because, regardless of what kind of offence is alleged to have been committed by the applicant and when, an order of bail which comprehends allegedly unlawful activity of any description whatsoever, will prevent the police from arresting the applicant even if the commits, say, a murder in the presence of the public.
Such an order can then become a charter of lawlessness and weapon to stifle prompt investigation into offences which could not possibly be predicated when the order was passed.
Therefore, the court which grants anticipatory bail must take care to specify the offence or offences in respect of which alone the order will be effective.
The power should not be exercised in a vacuum.
[419 C E] 5.
An order of bail can be passed under section 438(1) of the Code without notice to the Public Prosecutor.
But notice should issue to the public prosecutor or the Government Advocate forthwith and the question of bail should be re examined in the light of the respective contentions of the parties.
The ad interim order too must conform to the requirements of the section and suitable conditions should be imposed on the applicant even at that stage.
[419 E F] 6.
Equally the operation of an order passed under section 438(1) need not necessarily be limited in point of time.
The Court may, if there are reasons for doing so, limit the operation of the order to a short period until after the filing of an F.I.R. in respect of the matter covered by the order.
The applicant may in such cases be directed to obtain an order of bail under Section 437 or 439 of the Code within a reasonably short period after the filing of the F.I.R. 387 as aforesaid.
But this need not be followed as an invariable rule.
The normal rule should be not to limit the operation of the order in relation to a period of time.
[419 F H] 7.
Bail is basically release from restraint, more particularly release from the custody of the police.
The act of arrest directly affects freedom of movement of the person arrested by the police, and speaking generally, an order of bail gives back to the accused that freedom on condition that he will appear to take his trial.
Personal recognizance suretyship bonds and such other modalities are the means by which an assurance is secured from the accused that though he has been released on bail, he will present himself as the trial of offence or offences of which he is charged and for which he was arrested.
[397 E G] The distinction between an ordinary order of bail and an order of anticipatory bail is that whereas the former is granted after arrest and therefore means release from the custody of the police, the latter is granted in anticipation of arrest and is therefore effective at the very moment of arrest.
Police custody is an inevitable concomitant of arrest for non bailable offences.
An order of anticipatory bail constitutes, so to say, an insurance against police custody following upon arrest for offence or offences in respect of which the order is issued.
In other words, unlike a post arrest order of bail, it is a pre arrest legal process which directs that if the person in whose favour it is issued is thereafter arrested on the accusation in respect of which the direction is issued, he shall be released on bail.
Section 46(1) of the Code of Criminal Procedure which deals with how arrests are to be made, provides that in making the arrest the police officer or other person making the arrest "shall actually touch or confine the body of the person to be arrested, unless there be a submission to the custody by word or action".
A direction under section 438 is intended to confer conditional immunity from this 'touch ' or confinement.
[397 G H. 398 A B] 8.
No one can accuse the police of possessing a healing touch nor indeed does anyone have misgivings in regard to constraints consequent upon confinement in police custody.
But, society has come to accept and acquiesce in all that follows upon a police arrest with a certain amount of sangfroid, in so far as the ordinary rut of criminal investigation is concerned.
It is the normal day to day business of the police to investigate into charges brought before them and, broadly and generally, they have nothing to gain, not favours at any rate, by subjecting ordinary criminal to needless harassment.
But the crimes, the criminals and even the complaints can occasionally possess extraordinary features.
When the even flow of life becomes turbid, the police can be called upon to inquire into charges arising out of political antagonism.
The powerful processes of criminal law can then be perverted for achieving extraneous ends.
Attendant upon such investigations, when the police are not free agents within their sphere of duty, is a great amount of inconvenience, harassment and humiliation.
That can even take the form of the parading of a respectable person in hand cuffs, apparently on way to a court of justice.
The foul deed is done when an adversary is exposed to social ridicule and obloquy, no matter when and whether a conviction is secured or is at all possible.
It is in order to meet such situations, though not limited to these contingencies, that the power to grant anticipatory bail was introduced into the Code of 1973.
[398 C F] 9.
Clause (1) of Section 438 is couched in terms, broad and unqualified.
By any known canon of construction, words of width and amplitude ought not 388 generally to be cut down so as to read into the language of the statute restraints and conditions which the legislature itself did not think it proper or necessary to impose.
This is especially true when the statutory provision which falls for consideration is designed to secure a valuable right like the right to personal freedom and involves the application of a presumption as salutary and deep grained in our Criminal Jurisprudence as the presumption of innocence.
[401 A C] The legislature conferred a wide discretion on the High Court and the Court of Session to grant anticipatory bail because it evidently felt, firstly, that it would be difficult to enumerate the conditions under which anticipatory bail should or should not be granted and secondly; because the intention was to allow the higher courts in the echelon a somewhat free hand in the grant of relief in the nature of anticipatory bail.
That is why, departing from the terms of Sections 437 and 439, Section 438(1) uses the language that the High Court or the Court of Session "may, if it thinks fit" direct that the applicant be released on bail.
Sub section (2) of Section 438 is a further and clearer manifestation of the same legislative intent to confer a wide discretionary power to grant anticipatory bail.
It provides that the High Court or the Court of Session, while issuing a direction for the grant of anticipatory bail, "may include such conditions in such directions in the light of the facts of the particular case, as it may think fit" including the conditions which are set out in clauses (i) to (iv) of sub section (2).
The proof of legislative intent can best be found in the language which the legislature uses.
Ambiguities can undoubtedly be resolved by resort to extraneous aids but words, as wide and explicit as have been used in Section 438, must be given their full effect, especially when to refuse to do so will result in undue impairment of the freedom of the individual and the presumption of innocence.
It has to be borne in mind that anticipatory bail is sought when there is a mere apprehension of arrest on the accusation that the applicant has committed a non bailable offence.
A person who has yet to lose his freedom by being arrested asks for freedom in the event of arrest.
That is the stage at which it is imperative to protect his freedom, in so far as one may, and to give full play to the presumption that he is innocent.
In fact, the stage at which anticipatory bail is generally sought brings about its striking dissimilarity with the situation in which a person who is arrested for the commission of a non bailable offences asks for bail.
In the latter situation, adequate data is available to the Court, or can be called for by it, in the light of which it can grant or refuse relief and while granting it, modify it by the imposition of all or any of the conditions mentioned in Section 437.
[404 A G] 10.
The amplitude of judicial discretion which is given to the High Court and the Court of Sessions, to impose such conditions as they may think fit while granting anticipatory bail, should not be cut down, by a process of construction, by reading into the statute conditions which are not to be found therein like those evolved by the High Court.
The High Court and the Court of Session to whom the application for anticipatory bail is made ought to be left free in the exercise of their judicial discretion to grant bail if they consider it fit so to do on the particular facts and circumstances of the case and on such conditions as the case may warrant.
Similarly, they must be left free to refuse bail if the circumstances of the case so warrant, on considerations similar to those mentioned in Section 437 or which are generally considered to be relevant under Section 439 of the Code.
[405 B D] 389 Generalisations on matters which rest on discretion and the attempt to discover formulae of universal application when facts are bound to differ from case to case frustrate the very purpose of conferring discretion.
No two cases are alike on facts and therefore, Courts have to be allowed a little free play in the joints if the conferment of discretionary power is to be meaningful.
There is no risk involved in entrusting a wide discretion to the Court of Session and the High Court in granting anticipatory bail because, firstly these are higher courts manned by experienced persons, secondly their order are not final but are open to appellate or revisional scrutiny and above all because, discretion has always to be exercised by courts judicially and not according to whim, caprice or fancy.
On the other hand, there is a risk in foreclosing categories of cases in which anticipatory bail may be allowed because life throws up unforeseen possibilities and offers new challenges.
Judicial discretion has to be free enough to be able to take these possibilities in its stride and to meet these challenges.
[405 D G] Hyman and Anr.
vs Rose, ; referred to 11.
Judges have to decide cases as they come before them, mindful of the need to keep passions and prejudices out of their decisions.
And it will be strange if, by employing judicial artifices and techniques, this Court cuts down the discretion so wisely conferred upon the Courts, by devising a formula which will confine the power to grant anticipatory bail within a strait jacket.
While laying down cast iron rules in a matter like granting anticipatory bail, as the High Court has done, it is apt to be overlooked that even Judges can have but an imperfect awareness of the needs of new situations.
Life is never static and every situation has to be assessed in the context of emerging concerns as and when it arises.
Therefore, even if this Court were to frame a 'Code for the grant of anticipatory bail ', which really is the business of the legislature, it can at best furnish broad guidelines and cannot compel blind adherence.
In which case to grant bail and in which to refuse it is, in the very nature of things, a matter of discretion.
But apart from the fact that the question is inherently of a kind which calls for the use of discretion from case to case, the legislature has, in terms express, relegated the decision of that question to the discretion of the Court, by providing that it may grant bail "if it thinks fit".
The concern the Courts generally is to preserve their discretion without meaning to abuse it.
It will be strange if the Court exhibits concern to stultify the discretion conferred upon the Courts by law.
[406 D H] Discretion, therefore, ought to be permitted to remain in the domain of discretion, to be exercised objectively and open to correction by the higher courts.
The safety of discretionary power lies in this twin protection which provides a safeguard against its abuse.
[407 F G] 12.
It is true that the functions of judiciary and the police are in a sense complementary and not overlapping.
An order of anticipatory bail does not in any way, directly or indirectly, take away from the police their right to investigate into charges made or to be made against the person released on bail.
In fact, two of the usual conditions incorporated in a direction issued under section 438(1) are those recommended in Sub section (2)(i) and (ii) which require the applicant to co operate with the police and to assure that he shall not tamper with the witnesses during and after the investigation.
While granting relief under Section 438(1), appropriate conditions can be imposed under Section 438(2), so as to ensure an uninterrupted investigation.
One of 390 such conditions can even be that in the event of the police making out a case of a likely discovery under Section 27 of the Evidence Act, the person released on bail shall be liable to be taken in police custody for facilitating the discovery.
Besides, if and when the occasion arises, it may be possible for the prosecution to claim the benefit of Section 27 of the Evidence Act in regard to a discovery of facts made in pursuance of information supplied by a person released on bail.
[409 D, 410 A D] King Emperor vs Khwaja Nazir Ahmed, 71 I.A., 203, State of U.P. vs Deoman Upadhyaya, [1961] 1 S.C.R. p. 14 @ 26; referred to. 13.
In Balchand Jain vs State of Madhya Pradesh, ; , this Court was considering whether the provisions of Section 438 relating to anticipatory bail stand overruled or repealed by virtue of Rule 184 of the Defence and Internal Security of India Rules, 1971 or whether both the provisions can by rule of harmonious interpretion, exist side by side.
It was in that context that it was observed that "As section 438 immediately follows Section 437 which is the main provision for bail in respect of non bailable offences, it is manifest that the conditions imposed by section 437(1) are implicitly contained in Section 438 of the Code".
These observations regarding the nature of the power conferred by section 438 and regarding the question whether the conditions mentioned in Section 437 should be read into section 438 cannot, therefore be treated as the ratio of the decision.
[413 C D, E] The power conferred by section 438 is of an "extra ordinary" character only in the sense that it is not ordinarily resorted to like the power conferred by sections 437 and 439.
[413 E F] Bal Chand Jain vs State of M.P., ; , distinguished.
Since denial of bail amounts to deprivation of personal liberty, the Court should lean against the imposition of unnecessary restrictions on the scope of section 438, especially when no such restrictions have been imposed by the legislature in the terms of that section.
Section 438 is a procedural provision which is concerned with the personal liberty of the individual, who is entitled to the benefit of the presumption of innocence since he is not, on the date of his application for anticipatory bail, convicted of the offence in respect of which he seeks bail.
An over generous infusion of constraints and conditions which are not to be found in Section 438 can make its provisions constitutionally vulnerable since the right to personal freedom cannot be made to depend on compliance with unreasonable restrictions.
[413 F H, 414 A] Maneka Gandhi vs Union of India, [1978] 1 S.C.C. 248; applied.
In regard to anticipatory bail, if the proposed accusation appears to stem not from motives of furthering the ends of justice but from some ulterior inotive, the object being to injure and humiliate the applicant by having him arrested a direction for the release of the applicant on bail in the event of his arrest would generally, be made.
On the other hand, if it appears likely considering the antecedents of the applicant, that taking advantage of the order of anticipatory bail he will flee from justice, such an order would not be made.
But the converse of these propositions is not necessarily true.
That is to say it cannot be laid down as an inexorable rule that anticipatory bail cannot be granted unless the proposed accusation appears to be actuated by mala fides; 391 and, equally, that anticipatory bail must be granted if there is no fear that the applicant will abscond.
There are several other considerations, too numerous to enumerate the combined effect of which must weigh with the court while granting or rejecting anticipatory bail.
The nature and seriousness of the proposed charges, the context of the events likely to lead to the making of the charges, a reasonable possibility of the applicant 's presence not being secured at the trial, a reasonable apprehension that witnesses will be tampered with and "the larger interests of the public or the state" are some of the considerations which the court has to keep in mind while deciding an application for anticipatory bail.
[415 G H, 416 A C] State vs Captain Jagjit Singh, ; , followed.


judgement:
Civil Appeal Nos.
2036 2039/79.
Appeals by special leave from the Judgment and Orders dated 27 4 1979, and 25 6 1979 of the Andhra Pradesh High Court in U.R.S. Nos. 4039 and 4040 in W.P. Nos. 18 & 20 of 1978 and application Nos. 75 & 76 in WP Nos. 18 & 20 of 1978 respectively.
M. A. Abdul Khader, Mukramuddin and G. Narayana Rao for the Appellants.
Dr. Y. section Chitale, K. Ram Kumar and T. A. Ramchandran for the Respondent.
The Judgment of the Court was delivered by 441 FAZAL ALI, J.
These appeals by special leave have been filed by the appellant who was respondent No. 1 (before the High Court), the elected candidate from the Charminar Assembly Constituency No. 218 in the State of Andhra Pradesh.
The election petitioner Mohd. Osman Shaheed filed election petition for setting aside the election of the appellant being E.P. No. 18/78 in the High Court.
Ahmed Hosain, a candidate who was defeated also filed another election petition No. 20/78 on the same grounds assailing the election of the appellant.
In the aforesaid election petitions before the High Court two applications were filed in each of the petition by the appellant, one for summoning witnesses Nos. 6, 8, 15 and 16 and the other for amendment of the counter.
These applications were filed after the petitioner closed the evidence and the High Court directed the appellant to file the list of witnesses.
The High Court, however, refused to summon these witnesses on the ground that no foundation for the facts on the basis of which these witnesses were sought to be cited or for the points on which they were to be examined was laid in the counter.
Similarly the High Court rejected the application for amendment of the counter on the same grounds.
The High Court was of the view that in the absence of any specific plea of alibi having been taken in the counter, the appellant could not be allowed to examine the witnesses or amend the counter.
Appeal Nos.
2036 37/79 are directed against the order striking out the witnesses nos.
6, 8, 15, 16 and 17 and Appeal Nos.
2038 39/79 are directed against the order rejecting the application for amendment of the counter.
We have heard counsel for the parties and have gone through the Judgment of the High Court.
We have also perused the application for amending the written statement.
It appears that one of the main allegations made against the appellant was that he had delivered speeches at Khilawat, Chowk and Baragalli on 17 2 78 and 21 2 78 respectively in which he indulged in promoting hatred rousing religious sentiments.
It was further alleged in Election Petition No. 20/78 that he made another speech at Baragalli where also he indulged in preaching religious hatred against the election petitioner.
In his counter the appellant stoutly denied the allegation that he ever made any speech at these places at all.
The respondent denied having made speech at all at Khilawat or Chowk or Baragalli.
By virtue of the amendment, the appellant sought to insert a plea that he could not have made the speeches as alleged by the election petitioner because he was at that time out of station and was present in Adoni 180 miles from the places where he is said to have delivered 442 speeches.
In fact, witnesses nos.
6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni.
With due respect, we may observe that in refusing the amendment of the Counter or summoning the witnesses, the High Court seems to have over looked the fact that under the provisions of the Representation of People Act, the onus lies entirely on the petitioner to prove the corrupt practices alleged against the elected candidate.
The necessary facts and particulars and the statements of facts etc.
are to be pleaded by the election petitioner with exactitude and precision.
It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case.
In the case of D. Venkata Reddy vs R. Sultan & Ors.,(1) this Court observed as follows: "Another principle that is equally well settled is that election petitioner in order to succeed must plead all material particulars and prove them by clear and cogent evidence.
The allegations of corrupt practices being in the nature of a quasi criminal charge the same must be proved beyond any shadow of doubt.
" So far as the elected candidate is concerned, he is merely to rebut the allegations made by the petitioner in accordance with the provisions of the Civil Procedure Code, as far as practicable.
In the instant case the appellant had taken an express plea in his counter that he did not make any speech at the places alleged by the election petitioner.
He also stated that tape records or the casette alleged to contain his speech were fabricated.
One of the ways of proving this plea could be by showing that the appellant was not physically present at the places where the speeches are alleged to have been made as he was present at that time, at some other place.
This is what the appellant sought to do through the proposed amendment and by summoning the witnesses.
Thus it was clearly open to the appellant to have proved these facts in order to rebut the allegations made by the petitioner that he was present at the places where he is said to have made speeches.
Under section 116 of the Representation of the People Act an election petition has to be tried as nearly as possible according to the procedure applicable under the Civil Procedure Code to the trial of suits.
Under O. VIII R. 2 the defendant must raise by his pleading all matters which show that the suit is not maintain able, or that the transaction is either void or voidable in point of law, and all such grounds of defence, as, if not raised, would be likely 443 to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint.
Having expressly denied the allegation of having made the speech, the appellant was fully justified in raising this defence.
Thus in the instant case it cannot be said that the witnesses sought to be examined by the appellant or the plea which he claimed in his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had already denied in clear terms that he never made any speeches at the places mentioned in the election petition.
There was no corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner had to do in order to set at naught the electoral process which resulted in the election of the appellant.
In fact proviso to section 87 of the Representation of the People Act which may be extracted thus provides: "Provided that the High Court shall have the discretion to refuse, for reasons to be recorded in writing, to examine any witness or witnesses is not material for the decision of the petition or that the party tendering such witness or witnesses is doing so on frivolous grounds or with a view to delay the proceedings." So far as the discretion on the High Court to refuse to summon any witness lies only when it is of the opinion that the evidence of the witness is not material or that the party tendering such witness is doing so on frivolous ground or with a view to delay the proceedings.
None of these conditions appear to be present in the instant case nor did the High Court dismiss the application for amendment of the counter or refused to examine the witnesses on the grounds mentioned above.
It it, therefore, manifest that in order to repel the plea of the election petitioner the appellant was entitled to lead evidence to show that he did not make any speech as he was physically incapable in doing so at the time and place as alleged by the election petitioner.
For these reasons, therefore, we are clearly of the opinion that the High Court was wrong in disallowing the prayer made by the appellant for examining the witnesses and for allowing amendment of the counter.
The appeals are accordingly allowed, the Judgment of the High Court is set aside and the High Court is directed to allow the appellant to examine witnesses Nos. 6, 8, 15, 16 & 17 and the amendment prayed for by the appellant is also hereby allowed.
The High Court will dispose of the election petition now as expeditiously as possible.
The costs of these appeals will abide the result of the election petition.
S.R. Appeals allowed.

summary/full:
In the two election petitions E. P. No. 18/78 and E. P. No. 20/78 filed by the defeated candidates, allegation of corrupt practice, namely "indulgence in promoting hatred rousing religious sentiments by speeches made at certain places" was made against the appellant, a successful candidate.
After the election petitioner closed his evidence and the High Court directed the appellant to file the list of his witnesses, the appellant filed two applications before the High Court namely, one for summoning witnesses Nos. 6, 8, 15 and 16 and another for amendment of his counter.
The High Court however refused to summon these witnesses on the ground that no foundation for the facts on the basis of which these witnesses were sought to be cited or for the points on which they were to be, examined was laid in the counter.
Similarly, the High Court rejected the application for amendment of the counter on the same grounds.
The High Court was of the view that in the absence of any specific plea of alibi, having been taken in the counter, the appellant could not be allowed to examine the witnesses or amend the counter.
Hence the two appeals, by special leave.
Allowing the appeals the Court, ^ HELD: 1.
Under the provisions of the Representation of People Act, the onus lies entirely on the petitioner to prove the corrupt practices alleged against the elected candidate.
The necessary facts and particulars and the statements of facts etc.
are to be pleaded by the election petitioner with exactitude and precision.
It is now well settled by a large catena of the authorities of this Court that a charge of corrupt practice must be proved to the hilt, the standard of proof of such allegation is the same as a charge of fraud in a criminal case.
[442B C] D. Venkata Reddy vs R. Sultan and Ors., [1976] 2 section C. C. followed.
So far as the elected candidate is concerned, he is merely to rebut the allegations made by the petitioner in accordance with the provisions of the Civil Procedure Code as far as practicable.
In the instant case, the appellant had taken an express plea in his counter that he did not make any speech at the places alleged by the election petitioner.
He also stated that tape records or the cassets alleged to contain his speech were fabricated.
One of the ways of proving this plea could be by showing that the appellant was not physically present at the places where the speeches are alleged to have been made as he was present at that time, at some other place.
This is what the appellant sought to do through the proposed amendment and by summoning 440 the witnesses.
Thus it was clearly open to the appellant to have proved facts in order to rebut the allegations made by the petitioner that he was not present at the places where he is said to have made speeches.
[442E G] 3.
Under section 116 of the Representation of the People Act an election petition has to be tried as nearly as possible according to the procedure applicable under the Civil Procedure Code to the trial of suits.
Under O.VIII R. 2 the defendant must raise by his pleading all matters which show that the suit is not maintainable, or that the transaction is either void or voidable in point of law, and all such grounds of defence, as, if not raised, would be likely to take the opposite party by surprise, or would raise issues of fact not arising out of the plaint.
Having expressly denied the allegation of having made the speech, the appellant was fully justified in raising this defence.
[442G H, 443A] In the instant case, it cannot be said that the witnesses sought to be examined by the appellant or the plea which he claimed in his counter by virtue of the amendment would spring surprise on the election petitioner because the appellant had already denied in clear terms that he never made any speeches at the places mentioned in the election petition.
There was no corresponding duty on the appellant to give full particulars or detailed statement of fact which the petitioner had to do in order to set at naught the electoral process which resulted in the election of the appellant.
[443A C] 4.
So far as the discretion vested on the High Court by Section 87 of the Representation of the People Act, 1951 to refuse to summon any witness lies only when it is of the opinion that the evidence of the witness is not material or that the party tendering such witness is doing so on frivolous ground or with a view to delay the proceedings.
[443D E] In the instant case none of these conditions are present.
In order to repel the plea of the election petitioner, the appellant was entitled to lead evidence to show that he did not make any speech as he was physically incapable in doing so at the time and place as alleged by the petitioner.
By virtue of the amendment the appellant sought to insert a plea that he could not have made the speeches as alleged by the election petitioner because he was at that time out of station and was present in Adoni 180 miles from the places where he is said to have delivered speeches.
In fact, witnesses Nos. 6, 8, 15, 16 and 17 were summoned to prove the fact that this appellant was in Adoni.
[441G H, 442A, 443E]