P L D 1957 (W (PLP)

KAIKAUS, J.‑

This judgment will dispose of four appli cations (Criminal Miscellaneous Nos. 833 of 1957, 834 of 1957, 890 of 1957 and 891 of 1957) under section 561‑A of the Code of Criminal Procedure which are directed against the order of the Tribunal appointed under the Control of Goondas Act for the Gujrat District. The petitioners in these applications are respondents in separate proceedings under the Control of Goondas Act which are pending before the said Tribunal. These petitioners had been released on bail by the Tribunal when they appeared before it and they were told that they will be informed later of the date of hearing. After this, however, ex‑parte proceedings were started against them. Coming to know of the ex‑parse proceedings the petitioners applied to the High Court in Writ Petition No. 572 of 1956 for quashing the ex‑parse proceedings on the ground that the provisions of the Control of Goondas Act relating to ex‑parse proceedings were inconsistent with Article 7 of the Constitution of Pakistan. This Writ Petition was accepted and the ex‑parse proceedings were held to be ultra vires. On the 20th of May 1957, when the petitioners again appeared before the Tribunal for further proceedings, an application was submitted against them by four witnesses alleging that they (the witnesses) had been threatened by the petitioners and that unless the petitioners were put behind the bars they would be unable to give evidence before the Tribunal. On this application the Prosecuting Deputy Superintendent of Police was called upon to submit a report. He referred the matter to the S. H. O., City Gujrat, who, in his report, supported the allegations in the application. The Prosecuting D. S. P. made an endorsement on the application confirming the report of the S. H. O. and requesting for the cancellation of the bails of the respondents. The Superintendent of Police himself made an endorsement in the following words :‑ "I agree with the report of the P. D. S. P. Goonda is a mischievous fellow and is hampering the evidence. On these grounds bail be cancelled". On the same day the Tribunal, which consisted of the District Magistrate and the Superintendent of Police, passed an order cancelling the bail of the petitioners. The petitioners then put in applications for bail before the Tribunal which were argued by counsel but were rejected. In the Criminal Miscellaneous Petitions, with which I am dealing, the petitioners challenge the order of the Tribunal cancelling bail on the following grounds :‑ (1) There is no power in the Tribunal to cancel bail at all once it has granted bail. (2) The Tribunal was not properly constituted because the Superintendent of Police who had himself asked for cancellation of bail was a member of the Tribunal. As regards the first ground, reliance is placed by the learned counsel for the petitioners on section 9 of the Punjab Control of Goondas Act, 1951, which runs :‑ "(1) Appearance before a Tribunal.‑When the person complained of appears before it, the Tribunal may take a bond from him with or without sureties for his appearance during the enquiry or when called upon, as the case may be, and may also, having regard to the nature of the in formation laid against him, require him to furnish a bond. with one or more sureties, in such sum as the Tribunal may think fit, to be of good behaviour until the conclusion of the enquiry, and may direct that he may be detained in custody until such bond is executed, or in default of execu tion, until the enquiry is concluded. "(2) The Tribunal may, for reasons to be recorded, instead of taking a bond for the appearance of the person complained of, order his detention in such custody as may be prescribed by the Government by a general or special order till the conclusion of the enquiry by it". It is contended by learned counsel for the petitioners that this section gave the Tribunal power to pass orders only once, either allowing bail to the person complained of or ordering his detention in custody and that once the Tribunal has passed one of these orders, there is no power in the Tribunal to vary or rescind that order. Learned counsel refers in this con nection to subsection (5) of section 497, Criminal P. C. which provides for the cancellation of the bail of a person released on bail and urges that if it was the intention of the Legislature to invest the Tribunal with the power to cancel bail, such power would have been specifically mentioned in section 9 of the Control of Goondas Act as it has been mentioned in section 497 (5), Criminal P. C. For a number of reasons, I would reject this argument. Even apart from section‑ 21 of the General Clauses Act, I would hold that the Legislature when it granted power to the Tribunal to grant bail or to order detention in custody did not intend that the jurisdiction of the Tribunal should be exercised only once. There are no. particular reasons why the A Tribunal should have been debarred either from releasing a person after it has made an order committing him to custody, or from cancelling his bail once it has passed an order granting bail. It will be observed that the logical conclusion of the argument of learned counsel is that if, on the appearance of the person concerned, the Tribunal passes an order detaining him in custody, it cannot afterwards release him on bail. This would' preclude the Tribunal from taking into consideration anything that happens after the order has been passed. The person who has been sent to the lock‑up may fall ill or the evidence which is produced against him may collapse and the Tribunal may find that although for some reason it was not in a position yet to pronounce final orders, there was prima facie no case which would lead to a final order against him; Special circumstances may come into existence after the first hearing which may require the release of the person com plained of. It may be that unless he is released he is unable to arrange for his defence. It may even be that when he was ordered to be detained in custody on his first appearance, the order was made solely because a particular witness had complained of threats from him. In such a case after that particular witness has been examined, no ground will remain for his further detention in custody. Similarly when once an order of bail has been passed, new grounds may come into existence for detention in custody of the person released. There may be no complaint of threat to the witnesses on the first hearing and there may be such a threat later. There may not be a strong prima facie case against the person complained of at the first hearing and on account of witnesses not mentioned in the original list a strong case may be made out. The reference to subsection (5) of section 497 does not at all help learned counsel for the petitioners. It will be observed that even in section 497 there is no express mention of jurisdiction to release an accused on bail after he has once been ordered to be detained except in a case where it appears from the evidence that there is no prima facie case of commission of a non‑bailable offence against him. Let us assume that the material on the record does disclose a case, of non‑bailable offence and the Court has on the first hearing ordered his detention in custody. Can it be argued seriously that the Court has no jurisdiction to grant bail ? Yet, no such power is expressly mentioned in section

497. The section mentions the power to release on bail (even when a primal facie case exists) only in connection with the first appearance. Then there is section 21 of the General Clauses Act by virtue of which the authority which can pass an order is entitles to vary, amend, add to or rescind that order, and learned counsel has said nothing as to why this section should not be held applicable. To come to the second point urged by learned counsel, there is no doubt that the order in dispute is open to serious objection. The Superintendent of Police first recommended in his capacity as Superintendent of Police that the bail of the present petitioners be cancelled, and then himself decided the same matter in his capacity as a member of the Tribunal. Was he bringing to bear a judicial mind on the question of cancellation of bail ? A Tribunal constituted under the Control of Goondas Act has to act judicially even though the members of the Tribunal are administrative heads of the district. It can only decide on the basis of evidence produced before it, By virtue of section 10 of the Control of Goondas Act the inquiry is to be conducted in accordance with the provisions of Criminal Procedure Code. Section 4 expressly declares the proceedings before a Tribunal to be judicial proceedings, and according to section 5, a Tribunal has the power of a Court of Record for punishing contempt s. Learned counsel for the petitioners contends and with force that having recommended cancellation of bail, the Superintendent of Police was incapable of deciding the question of bail judicially. He could not be expected to consider judicially whether he should accept his own re commendation for cancellation of bail. I wonder whether the Superintendent of Police ever realised the difference between his functions as head of the investigating agency and his functions as a member of the Tribunal. Had he done so, he would probably not have recommended the application for cancellation of bail. But while the order of cancellation of bail is open to serious objection on this ground, and while I would have had no hesitation in setting it aside if I was sitting as an appellate or revisional Court, can it be said that the Tribunal became improperly constituted so that the proceedings before it became coram non judice ? After all the only objection is that the Tribunal had a bias. Is a Tribunal with a bias improperly constituted and have its orders no existence in the eye of law ? Will its judgment be liable to collateral attack so that a detention under it becomes illegal and subject to a writ of habeas corpus ? The Control of Goondas Act constitutes the District Magistrate and the Superintendent of Police a Tribunal for the purpose of proceedings under the Act. It empowers them to hear all cases under the Act relating to that district. It contains no provision that an expression of opinion before hand, or exhibition of a personal interest in the prosecution will disqualify either of the two members from acting in a particular case. If then it be contended that on the basis of some principle, which should be read into every enactment relating to criminal procedure, this Tribunal becomes impro perly constituted in a particular contingency, the contention must be supported by clear reasons. Except in an extreme case where a person becomes an arbiter in his own cause, (which I will exclude from consideration and as to which I will express no opinion), I do not think the proposition put forward by learned counsel, that in every case of bias proceed ings before a judicial tribunal are without jurisdiction can be logically supported. As regards authority, learned counsel is unable to cite any that the order passed by a Tribunal with bias or with the kind of bias that exists in the present case will be wholly void. If we were to accept that bias renders an order void, a habeas corpus petition would lie in respect of every judgment of a criminal Court awarding imprisonment on the ground that the judge had acted with bias. The High Court would have to allow in such petitions evidence to prove bias for the High Court would not be entitled to shut out evidence that would render an order void and such petitions would lie and evidence would have to be allowed even though the conviction may have been maintained by the High Court in the exercise of its appellate or revisional jurisdiction for the failure of an appeal against a void order does not validate the order. Whatever may be the position with respect to a case where the judge is himself a party to the proceeding or has a pecuniary interest in it, it cannot be said that a proceeding in which the Judge has an interest as the holder of an office or in respect of which he has expressed an opinion already is a proceeding coram non judice. A Superintendent of Police is in fact the head of the police and is interested in the result of every proceeding under the Control of Goondas Act and it is under his orders that a challan under the Act is put in. The Tribunal (which consists of the Superintendent of Police and the District Magistrate) is constituted by the Act itself so that it is obvious that in the case of this exceptional enactment, the Legislature did not regard the mere existence of official interest in the result of the proceeding as a disqualifica tion. The only additional factor in the present case is that the Superintendent of Police has also expressed his opinion and has even recommended the passing of a particular order. True, it is obnoxious to one's sense of justice that the person who has once recommended the passing of a particular order should then decide as to what order should be passed, but that does not mean that any order passed by him is void even without any interference by an appellate or revisional Court. It may be useful to refer in this connection to Halsbury's Laws of England, Volume 21, Para. 953 and Para. 958, which have a direct bearing on the question before me. They run‑ Para. 953.

"A distinction must be drawn between pecuniary interest and prejudice. The smallest pecuniary interest is, subject to any statutory authority to the contrary, a bar to the justice acting, but where the interest is not pecuniary the question arises whether the interest is of such a substantial character as to make it likely that he has a real bias in the matter. That which then has to be considered is the effect likely to be produced upon the minds of the public as to the fairness of the administration of justice, and this is a question of degree to be decided in every case. "The interest, if pecuniary, need not be confined to the justice himself to preclude his acting. Membership of a company or association which is interested is a bar, as also is a bare liability to costs, where the decision itself would involve no pecuniary loss," Para. 958.‑

"Allegations of bias should not be lightly made, but if any reasonably probable ground for alleging bias exists a justice should not act, but should withdraw from the bench during the hearing: The mere presence on the bench of an interested Magistrate, whether he takes any part in the hearing or not, renders the proceedings irregular and consequently voidable. But if the information has been dismissed, Certiorari to quash the proceedings will not be granted". It will be observed that there is a distinction to be drawn between cases of prejudice and pecuniary interest and a mere bias according to Para. 958 only renders the proceedings irregular and voidable (and not void). Learned counsel for the petitioners also relies in this connection on section 556, Criminal P. C., which, he says, is applicable to these proceedings by virtue of section 10 of the Control of Goondas Act. Section 10 runs‑ "The Tribunal shall then proceed to enquire into the truth or otherwise of the information upon which action has been taken, and for that purpose to take such evidence as may appear necessary, following in all cases the procedure prescribed in the Code of Criminal Procedure, 1898, for conducting trials and recording evidence in summary cases, but subject to the other provisions of this Act." This section relates to the procedure which is to be followed by the Tribunal in conducting an inquiry into the truth of the allegation and is not intended to affect the constitution of the Tribunal itself, which has been separately provided for in the Act, but assuming that section 556 applies, the section cannot carry the matter any further because it only embodies the principle of bias. The section does not say that there is inherent lack of jurisdiction in a Judge or Magistrate to hear a case in which he is personally interested so that his judgment will be void. Learned counsel for the petitioners is unable to cite any case in which it was held that if section 556 r5 contravened, the proceedings would be coram non-judice. On the other hand, the provision in the section that with the permission of the appellate Court a Magistrate may try a case in which he is personally interested points to the opposite conclusion and rather shows that it is an objection which can be taken only before an appellate or revisional Court. Anwar v. Crown (P L D 1955 F C 185), would have been directly relevant were it not for the fact that proceedings like the one with which I am dealing appear to be excluded from the rule stated therein. The question involved in that case was as to the effect of bias on a judgment and it was held that bias would not affect the judgment unless the judgment was shown to have been affected by the bias. There is, however, at the end of the judgment a passage in which my Lord the Chief Justice has said that he is not dealing with those cases where a judge is personally interested in the proceedings which he decides. If the words "personally interested" have here been used in the meaning which attaches to them in section 556 (that is, including official interest) then I cannot avail of the judgment for deciding the present case. I may point out, however, that even with respect to a case where a judge is personally interested, the observations of My Lord the Chief justice are that in such a case an appellate or revisional Court may interfere to set aside the judgment. In view of what has been stated above the simple applica tion for habeas corpus should fail. As this is an unfortunate result, I considered whether I could not interfere with the order in dispute in the exercise of certiorari jurisdiction and for this purpose I heard the case de novo. After a considera tion of the relevant law, I am of the opinion that whereas a simple application for habeas corpus should fail, a petition ford certiorari should succeed. That I have a jurisdiction to interfere in the exercise of certiorari jurisdiction in a case where a judge is disqualified on account of bias will be apparent from Halsbury's Laws of England, Volume 9, Para. 1487, which specifically deals with this matter. I reproduce the Para, below :‑ "It is an elementary principle that no man can be a Judge in his own .cause. Therefore, where persons who have a direct interest in the subject‑matter of an inquiry before an, inferior Court take part in adjudicating upon it, the Court is improperly constituted and is without jurisdiction, and certiorari will be granted to quash the determination arrived at. "Any pecuniary interest, however small, in the matter in dispute disqualifies a person from acting as judge, unless the disability is removed by statute. "Where the interest of the person adjudicating is not pecuniary, certiorari will not be granted unless it is shown that his interest is substantial and of such a character that it is likely to give rise to a reasonable suspicion of bias, or that his decision was actually biased. Interest as a trustee merely raises no presumption of bias. It is not enough to show that the person adjudicating holds strong views on the subject matter of the offence in respect of which he adjudicates, or that he is subscriber to a society for the prevention of offences of the same character, or that he is a shareholder in a company carrying on business in a trade the general interests of which are affected by his decision, or that he is a member of a trade union to which one of the parties belongs, the matter not being one in which a trade disputes is involved. "The fact that a Magistrate present on the bench has given evidence in another matter against the person charged before the Court, or that in a case of assault he has in his private capacity as a surgeon attended the prosecutor, or recommended him to prosecute, does not in itself raise a presumption of interest or bias on his part. "An order for adjournment is not an adjudication, and certiorari will not be granted to quash such an order, although it was made by interested justices. "If a Magistrate has a pecuniary or other substantial interest in the subject‑matter of a cause at the hearing of which be is present on the bench, it is immaterial that he took no part in the proceedings. Similarly, the fact that the Magistrates' clerk is a member of the firm of solicitors which is acting, or has acted, for one of the parties in the proceedings before the Magistrates, or in other proceedings involving the same subject‑matter, raises a reasonable likelihood of bias on the part of the clerk, and certiorari will be granted to quash the justices' decision, even though the clerk did not give advice and influence them, or did not in fact know of his firm's connection with the matter, the Court acting on the fundamental principle that justice should not only be done, but should menifestly and undoub tedly be seen to be done," Nothing has been urged on behalf of the respondent to show that I cannot set aside the order in dispute in the exercise of certiorari jurisdiction. There is one matter which requires to be explained in this connection. In this Paragraph it will be observed that the words used are: "Improperly constituted and. without jurisdiction". Ordinarily when it is stated that a Tribunal is improperly constituted, it means that there is no proper Tribunal at all so that the proceedings are coram non judice. This is the sense in which I have myself been using the expression "improperly constituted" in the foregoing discus sion. Similarly an order "without jurisdiction" ordinarily means an order which has no existence in the eye of law. But it should be quite clear that these expressions are not used in this strict sense in this paragraph. It will be observed that when the interest is not pecuniary, it is to be decided whether the interest is substantial before the judgment is set aside. Now it can hardly be contended that that is a matter which can be decided‑ not only by an appellate or revisional Court, but by any Court before whom the so‑called biased Judge is produced. The judgment will not, therefore, be liable to collateral attack. The words "improperly consti tuted" are used probably because the objection, though it does not lead to an utter lack of jurisdiction, does relate to the constitution of the tribunal. The use of the words "without jurisdiction" may also be explained by reference to the fact that the word "jurisdiction" is sometimes used in the sense of power to pass a particular order in the circumst ances of a case. Their Lordships of the Privy Council in Attorney‑General of the Colony of Fiji v. J. P. Bavly Ltd. (AIR 1950 PC 73: PLD 1949 PC 274), while dealing with the trial of a matter without proper pleadings said the judge acted without jurisdiction, and in Amir Hassan Khan v. Sheo Baksh Singh (ILR11Ca1.6), their Lordships said the Judicial Commissioner had no jurisdiction to deter mine a proceeding simply because of a previous decision, Their Lordships could never have meant in either of these cases that the judgment was void. On the two meanings of the word "jurisdiction" as used in section 115 Civil P. C., there are a number of cases. This is not the place to deaf with them. I have just explained the use of these words in Para, 1487. Writ of Certiorari is of two kinds: (1) for removal and adjudication ; and (2) for quashing the proceedings. The K present case does not fall within category (1) because that is available only when the Court exercising certiorari jurisdiction has jurisdiction to pass the order which is challenged and the High Court does not posses any jurisdiction to pass orders under the Control of Goondas Act. I cannot myself pass an order either granting or refusing bail. I can only quash the proceedings if I find either that they are without jurisdiction or that they are illegal or materially irregular. As a result of the above discussion, I quash the orders cancelling the bails of the petitioners. The application for cancellation of bail would now stand undecided. If the Government wants to have the application for the cancellation of bail decided, the only course open to it would be to transfer the case to another Tribunal. A.H. Petition accepted.