Page 1 REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL ORIGINAL JURISDICTION

WRIT PETITION (CRIMINAL) NO. 154 OF 2013

Selvi J. Jayalalithaa & Ors. …Petitioners

Versus

State of Karnataka & Ors. …Respondents

WITH

WRIT PETITION (CRIMINAL) NO. 166 OF 2013

JUDGMENT

Dr. B.S. Chauhan, J.

1. The petitioners have challenged the order dated 10.9.2013

passed by the Government of Karnataka asking Shri G. Bhavani Singh

– respondent no.4, Special Public Prosecutor (hereinafter referred to as

‘SPP’) in a pending prosecution against the petitioners not to appear in

the said matter; the communication dated 14.9.2013 passed by the

Chief Justice of High Court of Karnataka at Bangalore by which the

Page 2 Chief Justice has approved the removal of Shri G. Bhavani Singh as

SPP, as well as the consequential order dated 16.9.2013 issued by the

State Government removing the respondent no.4 from the post of SPP.

2. A prosecution was launched against the petitioners for having

assets disproportionate to their known income in the year 1996-1997

in the State of Tamil Nadu. Thiru. K. Anbazhagan (respondent no. 5)

is a political rival of the petitioner no.1, who is and has been the Chief

Minister of Tamil Nadu on a number of occasions. The petitioners

approached this Court on 18.11.2003 for transferring the petitioners’

trial to the neighbouring State of Karnataka in the interest of justice, on

the ground that a fair trial was not possible in the State of Tamil Nadu.

While transferring the matters to the State of Karnataka, this Court for

appointment of SPP issued the following directions:

“The State of Karnataka in consultation with the Chief

Justice of High Court of Karnataka shall appoint a

senior lawyer having experience in criminal trials as

public prosecutor to conduct these cases. The public

prosecutor so appointed shall be entitled to assistance of

another lawyer of his choice. The fees and all other

expenses of the Public Prosecutor and the Assistant shall

be paid by the State of Karnataka who will thereafter be

entitled to get the same reimbursed from the State of

Tamil Nadu.” (Emphasis added)

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Page 3 3. On 19.2.2005, the Government of Karnataka, after

consultation with the Chief Justice of the High Court of Karnataka,

appointed Shri B.V. Acharya, a former Advocate General, as SPP to

conduct the prosecution. On 12.8.2012, Shri Acharya expressed his

inability to continue as SPP. The Government of Karnataka accepted

his resignation in January, 2013 and discharged him from the case.

4. The Government of Karnataka then initiated the process for

appointment of a new SPP and in accordance with the directions of this

Court, submitted names of four Advocates to the High Court for

consideration by the Chief Justice.

5. The Acting Chief Justice of Karnataka High Court on

29.1.2013 recommended the name of Shri G. Bhavani Singh,

respondent No.4 for appointment though his name was not submitted

by the Government of Karnataka. The Government of Karnataka

accepted the same and issued a Notification appointing Shri G.

Bhavani Singh as SPP. After issuance of the notification dated

2.2.2013, Shri G. Bhavani Singh started working and 99 defence

witnesses were examined and 384 defence exhibits were marked

between 28.2.2013 and 29.7.2013. The defence commenced arguments

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Page 4 on 2.8.2013 and concluded the same. However, it was on 13.8.2013

that respondent no.5 filed an application under Section 301(2) Cr.P.C.

The learned Special Judge permitted respondent no.5 vide order dated

21.8.2013 to file Memo of Arguments and to render such assistance to

the SPP as he may require. The respondent no.5 filed two applications

on 23.8.2013 before the trial court, one under Section 309 Cr.P.C.

seeking adjournment by 4 weeks and another under Section 311

Cr.P.C. to recall PW.259, the Investigating Officer (whose examination

was over on 24.2.2003) and to examine him as a court witness.

6. On 26.8.2013, the Government of Karnataka issued a

Notification withdrawing the appointment of respondent no.4 as SPP

without assigning any reason and without consulting the Chief Justice

of Karnataka High Court.

7. The petitioners, apprehending delay in the trial approached this

Court challenging the removal of respondent no.4 as SPP by filing a

Writ Petition (Criminal) No. 145 of 2013 under Article 32 of the

Constitution of India (hereinafter referred to as the ‘Constitution’).

This Court issued notice to the respondents on 30.8.2013. On

6.9.2013, Mr. G.E. Vahanvati, learned Attorney General appeared for

the State of Karnataka and informed the court that the Notification

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Page 5 dated 26.8.2013 would be withdrawn with a view to consult the Chief

Justice of the Karnataka High Court. In view thereof, the afore-stated

writ petition was dismissed as having become infructuous.

8. The State Government withdrew the Notification dated

26.8.2013 vide Notification dated 10.9.2013 and simultaneously, vide

letter of the same date, asked Shri G. Bhavani Singh, respondent no.4

not to appear in the matter before the Special Judge. The petitioners

then filed the present Writ Petition (Criminal) No. 154 of 2013

challenging the said letter written to the respondent no.4 and to direct

the learned Special Judge to conclude the trial. On 13.9.2013, this

Court issued notice returnable in ten days and stayed the operation of

the letter being No. LAW 149 LCE 2012 dated 10.9.2013 passed by

respondent Nos.1-2.

9. While the afore-stated writ petition was pending in this

Court, the Government of Karnataka consulted the Chief Justice of the

Karnataka High Court for withdrawing the appointment of respondent

no.4 as SPP. The Chief Justice concurred with the view of the State

Government, vide communication dated 14.9.2013 and thus, the

appointment of Shri G. Bhavani Singh stood withdrawn by the

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Page 6 Government of Karnataka vide Notification No.LAW 149 LCE 2012

dated 16.9.2013.

10. Aggrieved, the petitioners have filed Writ Petition (Criminal)

No.166 of 2013, challenging the said orders dated 14.9.2013 and

16.9.2013.

11. Both petitions have been heard together.

Shri Shekhar Naphade and Shri U.U. Lalit, learned senior

counsel appearing for the petitioners submitted that it is settled law that

an accused has a right to a speedy trial, as guaranteed under Article 21

of the Constitution; the order withdrawing the appointment of

respondent no.4 as SPP is a calculated step to protract the trial in view

of impending retirement of the learned Special Judge on 30

th

September, 2013; and any Judge who takes over the matter would

require considerable time to get familiar with the lengthy record as the

recorded evidence oral and documentary run into 34000 pages; the trial

has almost been completed since the entire evidence of the prosecution

and the defence has been recorded and statements of the accused

persons (petitioners) under Section 313 of the Code of Criminal

Procedure, 1973 (hereinafter referred to as ‘Cr.P.C.’) have also been

recorded; the withdrawal of appointment of SPP after six months of his

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Page 7 functioning is motivated by malafides with a view to protract the trial

as there has been a change of government in the State of Karnataka; the

present case being a warrant case under the Prevention of Corruption

Act, 1988 (hereinafter referred to as the ‘Act 1988’), final submissions

of the defence already stood concluded. Eventually, according to the

learned counsel, the scheduled conclusion of the trial has become

impossible and the petitioners face the prospect of remaining under

trial for a long time, which would be to the political advantage of their

rivals in the ensuing elections. In view thereof, this court must quash

the order of withdrawal/revocation of the appointment of respondent

no.4 as SPP and to also further extend the duration of tenure of the

learned Special Judge till the conclusion of this trial.

12. Shri G.E. Vahanvati, the learned Attorney General submitted

that the act of revoking the appointment is substantially under Section

21 of the General Clauses Act and has been made in the like manner to

the appointment i.e. after consultation with the Chief Justice of the

Karnataka High Court as, contemplated by this Court. The main reason

for revocation of the appointment, according to the learned Attorney

General, was that the appointment itself was not made after due

consultation since the name of Shri G. Bhavani Singh did not find

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Page 8 place in any of the four names submitted by the Government of

Karnataka to the then learned Acting Chief Justice of Karnataka High

Court for appointment as SPP. In an action contrary to the true

purpose of consultation, the Acting Chief Justice recommended the

name of Shri G. Bhavani Singh on his own, thus preventing any

consultation on the name. Further, in exercise of its extraordinary

power under Article 142 of the Constitution, this court cannot force the

Government of Karnataka to allow the Special Judge to continue in

service after reaching the age of superannuation on 30.9.2013.

Therefore, the petitions lack merit and are liable to be dismissed.

13. Shri Vikas Singh, learned senior counsel appearing for the

respondent no.5 has submitted that the petitioners themselves have

been adopting dilatory tactics in the trial and it is only in the recent past

that they have become very punctual and had been forcing the learned

Special Judge to proceed with the matter in haste. The trial has been

conducted in an unwarranted manner and an example of the same is

that the arguments of the defence had been entertained by the learned

Special Judge before the arguments of the prosecution. Mr. G.

Bhavani Singh had been appointed on the suggestion of learned Acting

Chief Justice of the High Court of Karnataka, though his name had not

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Page 9 been there in the panel sent by the State Government. Thus, in the facts

and circumstances of the case, no interference is warranted and

petitions are liable to be dismissed.

14. We have heard learned counsel for all the parties and perused

the record produced before us by the Karnataka High Court.

15. The reason put forth by the Government of Karnataka for

removing Shri G. Bhavani Singh as SPP appears to be rather unusual.

It may be true that the name of Shri G. Bhavani Singh was not in the

list of four names submitted by the Government of Karnataka to the

then Acting Chief Justice of the High Court and the name originated

from the Acting Chief Justice, prior to making of appointment of SPP

by the Government of Karnataka; but it is equally true that the

appointment was made by the Government without questioning the

ability or suitability of the incumbent nor the government raised any

issue in respect of the manner/issue of consultation. On the contrary,

upon receiving the recommendation, the Government proceeded to

appoint Shri G. Bhavani Singh by issuing a Notification without any

demur. Apart from this the appointment continued un-objected for

almost seven months.

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Page 10 16. Even before us, no issue has been raised by the respondents

in respect of the eligibility, suitability or credibility of the respondent

no.4 as a SPP.

In the letter dated 29.1.2013 communicated by the learned

Registrar General of the High Court of Karnataka to the State

Government, the experience of Shri Bhavani Singh has been recited as

under:

“Sri G. Bhavani Singh, who is presently working as

State Public Prosecutor-II has standing experience of 38

years at the Bar exclusively on criminal side, he has

conducted the cases before the Trial Court as a defence

counsel and he has served as a Government Pleader from

1977 for a period of three years in the High Court of

Karnataka and as Additional Public Prosecutor for a

period of 3 years and currently for the past 8 years

working as State Public Prosecutor-II in the High Court

of Karnataka.”

17. Whenever consultation is mandated by law, it necessarily

involves two authorities; one, on whom a duty is cast to consult and the

other who has the corresponding right(s) to be consulted. The

grievance that there has been no consultation or insufficient

consultation is normally raised by the authority who has a right to be

consulted, in this case the Chief Justice. It is not legitimate for the

party who has a duty to consult and who has failed in that duty, to

make a grievance that there has been no consultation. This is exactly

10

Page 11 what has happened in the present case. If the Government found the

name of Shri G. Bhavani Singh, which was sent by the Acting Chief

Justice, not acceptable on any ground, it was duty bound to refer the

name back to the Acting Chief Justice along with their views and

suggestions, which was not done by them. On the contrary, they

proceeded to appoint Shri G. Bhavani Singh as SPP without demur,

who had already been a Public Prosecutor for several years. There is

nothing on record to indicate that the Government of Karnataka had

been forced by anyone to make the said appointment. The Government

thus voluntarily acquiesced in the process and is now not entitled to

raise this grievance. The grievance is thus baseless and does not carry

any conviction.

In the facts and circumstances of the case, the judgments

relied upon by the Hon’ble Chief Justice of Karnataka High Court in

his communication, concurring with the suggestion made by the

Government of Karnataka to withdraw the appointment of respondent

no.4 as SPP, particularly in Chandramouleshwar Prasad v. The

Patna High Court & Ors., AIR 1970 SC 370; Union of India v.

Sankalchand Himatlal Sheth & Anr., AIR 1977 SC 2328; State of

Gujarat v. Gujarat Revenue Tribunal Bar Association, AIR 2013

11

Page 12 SC 107; and State of Gujarat & Anr. v. Justice R.A. Mehta

(Retired) & Ors., (2013) 3 SCC 1, have no application.

18. We may record that though some criticism was made of the

letter dated 14.9.2013 of the Chief Justice of Karnataka approving the

revocation of the appointment of Shri G. Bhavani Singh and certain

observations therein, we are not inclined to go into the merits, demerits

or validity of the letter. In the first place, the said letter is not an order

that may affect any of the rights of the petitioners. It is merely an

approval given in the course of consultation for the removal of Shri G.

Bhavani Singh who has not questioned his removal. The petitioners

have challenged the validity of the action of the State Government

removing Shri G. Bhavani Singh on the ground that fundamental rights

under Article 21 for speedy trial have been breached thereby. In the

circumstances, it is not necessary to pronounce on the correctness or

otherwise of the contents of the letter written by Hon’ble the Chief

Justice.

19. Mr. Vikas Singh, learned senior counsel appearing for

respondent No. 5, referred to the entire proceedings after the case was

transferred to the State of Karnataka and submitted that the prosecution

has been proceeding in a most undesirable manner, particularly, after

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Page 13 the appointment of Shri G. Bhavani Singh as SPP. According to the

learned counsel, the Investigating Officer has been permitted to be

examined as a defence witness and the Special Judge has proceeded to

pass certain orders even in the absence of SPP. These allegations have

been denied as factually incorrect by Mr. Naphade, learned senior

counsel appearing for the petitioners. We are, however, not inclined to

go into all these submissions since they would form a subject of

entirely different enquiry and the allegedly illegal proceedings and

orders if any, can be challenged separately. It was also argued by Mr.

Vikas Singh that the Special Judge has wrongly permitted the defence

to commence their arguments before the arguments of the prosecution.

On the other hand, according to the petitioners, this is entirely

permissible in view of the fact that this is a prosecution under Section

13 of the Act 1988 and being so, any party including the defence is

entitled to begin its submissions on the close of its evidence by virtue

of Section 314 Cr.P.C., which applies to warrant cases. Further, by

virtue of Section 5 of the Act 1988, cases under this Act are liable to be

tried as warrant cases and there is therefore, no illegality in this regard.

The respondents’ contention that the prosecution alone must

begin their arguments is based on Section 234 Cr.P.C., which is not

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Page 14 applicable to the present trial at all. Having regard to the scope of the

present dispute, we do not consider it necessary or appropriate to

decide this question either.

20. In the instant case, as disclosed during the course of

arguments, there has been a change of the political party in power in

May 2013 and thus, the order of the State Government is alleged to be

politically motivated. In our opinion, though there is an undoubted

power with the Government to withdraw or revoke the appointment

within Section 21 of the General Clauses Act, but that exercise of

power appears to be vitiated in the present case by malafides in law

inasmuch as it is apparent on record that the switch-over of government

in between has resulted in a sudden change of opinion that is abrupt for

no discernable legally sustainable reason. The sharp transitional

decision was an act of clear unwarranted indiscretion actuated by an

intention that does not appear to be founded on good faith.

21. The record of the case reveals that the learned Special Judge

had started hearing of the present case on 20.11.2012. He had recorded

the statements of the accused in December 2012 and January 2013

under Section 313 Cr.P.C. The learned Judge examined 99 defence

witnesses and 384 defence exhibits were marked before him. The

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Page 15 defence concluded its argument before the learned Special Judge and

SPP commenced the final arguments on 23.8.2013. He was interrupted

abruptly as on 26.8.2013, the SPP was asked not to continue with the

work. The evidence led in the case is very bulky as it runs into 34000

pages. In case a new Judge starts hearing the matter, he is bound to

take a long time to understand the factual and legal niceties involved in

the case. Accordingly, we have no hesitation in holding that the

Notification purporting to revoke the appointment of Shri G. Bhavani

Singh as SPP is liable to be struck down.

22. In State of Tamil Nadu & Ors. v. K. Shyam Sunder &

Ors., AIR 2011 SC 3470, this Court has observed that the Government

has to rise above the nexus of vested interests and nepotism and

eschew window-dressing. The principles of governance have to be

tested on the touchstone of justice, equity and fair play. A decision may

look legitimate but as a matter of fact, if the reasons are not based on

values but to achieve popular accolade, the decision cannot be allowed

to operate. Therefore, unless it is found that the act done by the

authority earlier in existence is either contrary to the statutory

provisions or unreasonable, or is against public interest, the State

should not change its stand merely because the other political party has

15

Page 16 come into power. “Political agenda of an individual or a political party

should not be subversive of rule of law.”

(See also: M.I. Builders Pvt. Ltd. v. V. Radhey Shyam Sahu & Ors.,

AIR 1999 SC 2468; Onkar Lal Bajaj etc. etc. v. Union of India &

Anr. etc.etc., AIR 2003 SC 2562; State of Karnataka & Anr. v. All

India Manufacturers Organization & Ors., AIR 2006 SC 1846; and

A.P. Dairy Development Corporation Federation v. B. Narasimha

Reddy & Ors., AIR 2011 SC 3298).

23. In Smt. S.R. Venkataraman v. Union of India & Anr.,

AIR 1979 SC 49, this Court explained the concept of legal malice

observing that malice in its legal sense means malice such as may be

assumed from the doing of a wrongful act intentionally but without just

cause or excuse, or for want of reasonable or probable cause.

24. In Ravi Yashwant Bhoir v. District Collector, Raigad &

Ors., AIR 2012 SC 1339, while dealing with the issue, this Court held:

"37….. Legal malice" or "malice in law" means

something done without lawful excuse. It is a deliberate

act in disregard to the rights of others. It is an act which

is taken with an oblique or indirect object. It is an act

done wrongfully and wilfully without reasonable or

probable cause, and not necessarily an act done from ill-

feeling and spite. Mala fide exercise of power does not

imply any moral turpitude. It means exercise of statutory

power for "purposes foreign to those for which it is in

16

Page 17 law intended." It means conscious violation of the law to

the prejudice of another, a depraved inclination on the

part of the authority to disregard the rights of others,

where intent is manifested by its injurious acts. Passing

an order for unauthorized purpose constitutes malice in

law.”

(See also: Kalabharati Advertising v. Hemant Vimalnath

Narichania & Ors., AIR 2010 SC 3745).

25. Thus, it is trite law that if discretionary power has been

exercised for an unauthorised purpose, it is generally immaterial

whether its repository was acting in good faith or in bad faith and the

order becomes vulnerable and liable to be set aside.

26. Fair trial is the main object of criminal procedure and such

fairness should not be hampered or threatened in any manner. Fair trial

entails the interests of the accused, the victim and of the society. Thus,

fair trial must be accorded to every accused in the spirit of the right to

life and personal liberty and the accused must get a free and fair, just

and reasonable trial on the charge imputed in a criminal case. Any

breach or violation of public rights and duties adversely affects the

community as a whole and it becomes harmful to the society in

general. In all circumstances, the courts have a duty to maintain public

confidence in the administration of justice and such duty is to vindicate

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Page 18 and uphold the ‘majesty of the law’ and the courts cannot turn a blind

eye to vexatious or oppressive conduct that occurs in relation to

criminal proceedings.

Denial of a fair trial is as much injustice to the accused as is

to the victim and the society. It necessarily requires a trial before an

impartial judge, a fair prosecutor and an atmosphere of judicial calm.

Since the object of the trial is to mete out justice and to convict the

guilty and protect the innocent, the trial should be a search for the truth

and not a bout over technicalities and must be conducted under such

rules as will protect the innocent and punish the guilty. Justice should

not only be done but should be seem to have been done. Therefore, free

and fair trial is a sine qua non of Article 21 of the Constitution. Right

to get a fair trial is not only a basic fundamental right but a human right

also. Therefore, any hindrance in a fair trial could be violative of

Article 14 of the Constitution.

“No trial can be allowed to prolong indefinitely due to the

lethargy of the prosecuting agency or the State machinery and that is

the raison d’etre in prescribing the time frame” for conclusion of the

trial.

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Page 19 Article 12 of the Universal Declaration of Human Rights

provides for the right to a fair trial what is enshrined in Article 21 of

our Constitution. Therefore, fair trial is the heart of criminal

jurisprudence and, in a way, an important facet of a democratic polity

and is governed by rule of law. Denial of fair trial is crucifixion of

human rights. (Vide: Smt. Triveniben v. State of Gujarat, AIR 1989

SC 1335; A.R. Antulay & Ors, v. R.S. Nayak, AIR 1992 SC 1701;

Raj Deo Sharma (II) v. State of Bihar, (1999) 7 SCC 604; Dwarka

Prasad Agarwal (D) by L.Rs. & Anr. v. B.D. Agarwal & Ors., AIR

2003 SC 2686; K. Anbazhagan v. Supdt. of Police, AIR 2004 SC

524; Zahira Habibullah Sheikh (5) v. State of Gujarat, AIR 2006

SC 1367; Noor Aga v. State of Punjab & Anr., (2008) 16 SCC 417;

Capt. Amarinder Singh v. Parkash Singh Badal & Ors., (2009) 6

SCC 260; Mohd. Hussain @ Julfikar Ali v. State (Govt. of NCT of

Delhi), AIR 2012 SC 750; Sudevanand v. State through CBI, (2012) 3

SCC 387; Rattiram & Ors. v. State of M.P., (2012) 4 SCC 516; and

Natasha Singh v. CBI, (2013) 5 SCC 741).

27. It was lastly contended by Mr. Naphade, learned senior

counsel appearing for the petitioners that this would be a fit case for

exercise of powers under Article 142 of the Constitution for a

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Page 20 direction to the competent authority to extend the tenure of the Special

Judge, who is due to reach the age of retirement on 30

th

September,

2013.

28. The learned Attorney General, however, submitted that this

Court could not exercise its powers under Article 142 of the

Constitution in the present case since such an exercise would be

contrary to laws under which each Judge must retire on reaching the

age of superannuation. In order to fortify his submission, learned

Attorney General placed reliance on the judgment of this court in A.B.

Bhaskara Rao v. Inspector of Police, CBI Vishakapatnam, (2011)

10 SCC 259, wherein this court held that the powers under Article 142

of the Constitution cannot be exercised by this court in contravention

of any statutory provisions, though such powers remain unfettered and

create an independent jurisdiction to pass any order in pubic interest

to do complete justice. However, such exercise of jurisdiction should

not be contrary to any express provision of law.

The powers under Article 142 of the Constitution stand on a

wider footing than ordinary inherent powers of the court to prevent

injustice. The constitutional provision has been couched in a very

wide compass that it prevents “clogging or obstruction of the stream

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Page 21 of justice.” However, such powers are used in consonance with the

statutory provisions.

(See also: Teri Oat Estates (P) Ltd. v. UT, Chandigarh & Ors.,

(2004) 2 SCC 130; Manish Goel v. Rohini Goel, AIR 2010 SC 1099;

and State of Uttar Pradesh v. Sanjay Kumar, (2012) 8 SCC 537).

29. We find force in the submissions advanced by the learned

Attorney General that this Court generally should not pass any order

in exercise of its extraordinary power under Article 142 of the

Constitution to do complete justice if such order violates any statutory

provisions. We do not intend to say that it would be illegal to extend

the term of the special judge, but that it is a matter within the

jurisdiction of the State in accordance with the relevant law.

There is yet an uncontroverted legal principle that when the

statute provides for a particular procedure, the authority has to follow

the same and cannot be permitted to act in contravention of the same.

In other words, where a statute requires to do a certain thing in a

certain way, the thing must be done in that way and not contrary to it

at all. Other methods or mode of performance are impliedly and

necessarily forbidden. The aforesaid settled legal proposition is based

on a legal maxim “Expressio unius est exclusio alterius”, meaning

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Page 22 thereby that if a statute provides for a thing to be done in a particular

way, then it has to be done in that manner and in no other manner and

following any other course is not permissible.

In State of Uttar Pradesh v. Singhara Singh & Ors., AIR

1964 SC 358, this court held as under:

“8. The rule adopted in Taylor v. Taylor (1876) 1 Ch D

426 is well recognised and is founded on sound

principle. Its result is that if a statute has conferred a

power to do an act and has laid down the method in

which that power has to be exercised, it necessarily

prohibits the doing of the act in any other manner than

that which has been prescribed. The principle behind the

rule is that if this were not so, the statutory provision

might as well not have been enacted.”

(See also: Accountant General, State of Madhya Pradesh v. S.K.

Dubey & Anr., (2012) 4 SCC 578)

30. We have examined the scheme of the statutory provisions in

this regard. The Karnataka Civil Services (General Recruitment) Rules,

1977 authorise the State Government to appoint a retired government

servant on contractual basis after meeting certain formalities, for a

specific period as may be necessary. So far as judicial officers are

concerned, their services are governed by the Karnataka Judicial

Services (Recruitment) Rules, 1983 and Rule 3(2) thereof provides the

application of the rules framed under any law or proviso under Article

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Page 23 309 of the Constitution to judicial officers, though subject to the

provisions of Articles 233, 234 and 235 of the Constitution. The Rules

of 1983 stand repealed by the Karnataka Judicial Service (Recruitment)

Rules 2004 (hereinafter referred to as the ‘Rules 2004’) and Rule

11(2) thereof reads as under:

“11(2). All rules regulating the conditions of service of

the members of the State Civil Services made from time

to time under any law or the proviso to Article 309 of the

Constitution of India shall, subject to Articles 233, 234

and 235 be applicable to the Civil Judges (Junior

Division), Civil Judges (Senior Division) and the District

Judges recruited and appointed under these rules.”

Thus, it is evident that the State Government is competent to

appoint the learned Special Judge on contractual basis after his

retirement for the period required to conclude the present trial, though

with the consultation of the High Court as required under Article 235

of the Constitution. Further, in our humble opinion, such a course must

be adopted in the manner prescribed under the Rules 2004 and in view

thereof, the matter requires to be considered by the State Government

with the consultation of the High Court.

31.Therefore, in view of the aforestated facts, we refer the matter to

the High Court of Karnataka to decide on the administrative side as to

whether, in order to conclude the trial expeditiously as guaranteed

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Page 24 under Article 21 of the Constitution requires the extension of the

services of the learned Special Judge. Considering the urgency of the

matter, we request the High Court of Karnataka to take a decision in

this regard as early as possible.

32.In view of the above, we are of the considered opinion that the

order of removal of Shri G. Bhavani Singh-respondent no.4 is a

product of mala fides and the impugned order is not sustainable in the

eyes of law as such the same is hereby quashed.

33.With the aforesaid observations/directions, the writ petitions

stand disposed of.

.........................………………..J.

(DR. B.S. CHAUHAN)

.............………………………J.

(S.A. BOBDE)

New Delhi,

September 30, 2013

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