Case Comment by Akinchan Aggarwal, Advocate — B.A. (Hons.) Gold Medalist, LL.B. (University Rank 2), LL.M. (Dispute Resolution), UGC–NET, Ph.D. (Pursuing)
On 11 May 2007 the Punjab and Haryana High Court dismissed an appeal against acquittal. The case was over. The Bench was functus officio.
Twenty days later, the same Bench took the same case up again — on its own motion — and marked it "Part Heard".
What followed over the next thirteen months was a Special Investigation Team, a CBI investigation, directions that witnesses be coded as A, B and C so they could not resile, statements to be recorded under Section 164, and finally an FIR against a serving Director of the Vigilance Bureau who had never been made a party to any of it.
On 7 December 2011 the Supreme Court wiped out every single one of those orders, and the FIR with them — not by examining whether the allegations were true, but by asking one question: was the first step lawful?
It was not. And so nothing that stood on it could stand.
The case
State of Punjab v. Davinder Pal Singh Bhullar & Ors. Etc.
Criminal Appeal Nos. 753–755 of 2009, with Criminal Appeal Nos. 2258–2264 of 2011
(2011) 14 SCC 770 | 2011 INSC 839 | 2012 Cri LJ 1001 | 2012(1) RCR (Cri) 126
Bench: Justice B.S. Chauhan and Justice A.K. Patnaik
Decided: 7 December 2011
Result: Impugned orders declared a nullity; CBI FIR quashed.
The Maxim
Sublato fundamento cadit opus — the foundation being removed, the structure falls.
The Court's formulation in paragraph 72 is the one to memorise:
"It is a settled legal proposition that if initial action is not in consonance with law, all subsequent and consequential proceedings would fall through for the reason that illegality strikes at the root of the order."
And in paragraph 74, adopting Mangal Prasad Tamoli v. Narvadeshwar Mishra, (2005) 3 SCC 422: if an order at the initial stage is bad in law, then all further proceedings consequent to it will be non est and have to be necessarily set aside.
The reach of the principle is wider than criminal law. Relying on Badrinath v. State of Tamil Nadu and State of Kerala v. Puthenkavu N.S.S. Karayogam, (2001) 10 SCC 191, the Court held that once the basis of a proceeding is gone, all consequential acts, actions and orders fall to the ground automatically — and that this applies to judicial, quasi-judicial and administrative proceedings equally.
The companion proposition, from C. Albert Morris v. K. Chandrasekaran, (2006) 1 SCC 228, states the same idea from the other end: a right in law exists only when it has a lawful origin.
What Actually Happened
The underlying matter was grave. In August 1991 a remote-controlled car bomb in Sector 17, Chandigarh, was detonated to kill the then SSP. The Ambassador car was blown into the air. HC Amin Chand, the driver, and ASI Lalu Ram died on the spot; other police personnel and CRPF jawans in the escort vehicle were grievously injured. Eight persons were charge-sheeted; three were tried; five were declared proclaimed offenders.
| Date | Event |
|---|---|
| 29.08.1991 | FIR No. 334/91 registered — the bomb attack. |
| 1991 / 1997 | Two habeas corpus petitions concerning missing persons filed and dismissed by the High Court. |
| 01.12.2006 | Trial court acquits the three tried accused, giving benefit of doubt. |
| 11.05.2007 | Appeal against acquittal dismissed. The Court becomes functus officio. |
| 30.05.2007 | Twenty days later, the same Bench takes the disposed-of case up suo motu and marks it "Part Heard". |
| 22.08.2007 | SIT ordered; notice issued to the CBI. |
| 16.09.2007 | A father whose habeas corpus petition was dismissed in 1991 files a miscellaneous application — sixteen years later, in the disposed-of appeal. |
| 03.10.2007 | CBI asks not to be given the enquiry: overburdened, short of manpower, no inter-State ramifications. |
| 05.10.2007 | SIT disbanded. CBI nonetheless directed to investigate. A serving officer is named in the order as being in a position to influence any local investigation. He was not a party. |
| 06.11.2007 | A second application, by a convict under sentence of death in an unrelated case, is entertained and clubbed — over the CBI's objection that the incidents were unconnected. |
| 02.04.2008 | Though the matter was part-heard by a Division Bench, the Presiding Judge sits singly and takes the CBI's sealed-cover status report. |
| 02.07.2008 | CBI registers an FIR against the named officer and others. |
| 11.07.2008 | Supreme Court stays the investigation. |
| 07.12.2011 | All impugned orders declared a nullity. FIR quashed. |
The allegation of bias, when it came, was specific: the officer named in the order dated 5 October 2007 had, in 2002, conducted an enquiry against the Presiding Judge himself on the direction of the Chief Justice of the High Court, and had filed reports which the Chief Justice forwarded to the Chief Justice of India, leading to the appointment of a committee.
The Supreme Court examined the sealed-cover material and recorded that this was so. Throughout the judgment it refers to the Judge only as "Mr. Justice X." Having found a biased approach, the Court declined to name him — a restraint worth noticing in a judgment otherwise unsparing in its language.
Four Independent Reasons the Foundation Was Bad
What makes this judgment so useful is that the Court did not rest on one defect. It identified several, each sufficient on its own. In paragraph 71 it lists three; a fourth runs through the reasoning.
1. Section 362 — The Court Was Functus Officio
Section 362 of the CrPC (now Section 403 BNSS) provides that once a court has signed its judgment or final order disposing of a case, it shall not alter or review it except to correct a clerical or arithmetical error.
The Court's propositions, at paragraphs 26 to 30:
- A criminal court has no power of review. It becomes functus officio the moment the order disposing of the case is signed.
- There is no provision for modification of a judgment either.
- The prohibition is absolute. Even the High Court, exercising inherent power, has no jurisdiction to alter or review its own judgment.
- The Supreme Court has express power of review under Article 137. No such power was conferred on the High Court — and inherent power cannot supply what the Constitution and the Code withheld.
- The saving words in Section 362 — "unless otherwise provided by this Code or by any other law" — refer only to provisions expressly authorising alteration or review. Inherent power is not among them (Sooraj Devi v. Pyare Lal, AIR 1981 SC 736).
The distinction students miss: recall is not review.
Paragraph 27 preserves a narrow but important exception. Where a judgment was pronounced without jurisdiction, or in violation of natural justice, or without hearing a party affected by it, or was obtained by abuse of the process of court, inherent powers can be used to recall it — because in those situations the order is a nullity and Section 362 never engages at all. The power of recall is different from the power of altering or reviewing. But the party seeking recall must establish that it was not at fault. Reproduce that distinction and you have answered most questions set on this section.
2. The Roster — The Chief Justice Is Master of the Roster
Applications under Section 482 were entertained as miscellaneous applications in a disposed-of appeal, by a Bench to which the Section 482 roster had not been assigned.
The Court held that the Chief Justice has full power, authority and jurisdiction over the allocation of business; that he decides which case is heard by which Bench; that strict adherence is essential to judicial discipline; and that no Judge or Bench assumes jurisdiction unless the case is allotted under the orders of the Chief Justice. The proper course was to place the applications before the Bench hearing Section 482 petitions, or before the Chief Justice for orders.
3. Judicial Bias
This is the richest part of the judgment, and the propositions are quotable:
- Appearance of bias is enough. A mere ground of appearance of bias, not actual bias, vitiates the order. Actual proof of prejudice may make the case stronger but is not required (Manak Lal v. Prem Chand Singhvi, AIR 1957 SC 425).
- The test of real likelihood of bias: whether a reasonable person, in possession of the relevant information, would have thought bias was likely, and whether the adjudicator was likely to be disposed to decide the matter only in a particular way.
- Restated in Justice P.D. Dinakaran v. Judges Inquiry Committee, (2011) 8 SCC 380: whether a fair-minded and informed person, apprised of all the facts, would have a serious apprehension of bias. The courts examine not actual bias but real possibility of bias — giving effect to the maxim that justice must not only be done but be seen to be done.
- A judgment resulting from bias is a nullity and the trial coram non judice. The consequential order is liable to be quashed.
- The underlying maxim is nemo debet esse judex in causa propria sua — no one should be a judge in his own cause.
- On recusal, following Locabail (UK) Ltd. v. Bayfield Properties, (2000) 1 All ER 65: a Judge must recuse himself before any objection is made where circumstances give rise to automatic disqualification or he feels personally embarrassed. It is as wrong to yield to a frivolous objection as to ignore one of substance — but if there is real ground for doubt, that doubt must be resolved in favour of recusal.
The Court anchored the point in the Pinochet litigation, where the House of Lords set aside its own decision because one of the Law Lords had undisclosed links with an intervening party — on appearance of bias, not actual bias.
Two passages the judgment quotes are worth carrying into an answer. Frank J., In re Linahan: if bias means the total absence of preconceptions, then no one has ever had a fair trial and no one will. And Frankfurter J.: there is a good deal of shallow talk that the judicial robe does not change the man within it — it does.
4. Natural Justice — An Order Behind a Party's Back
The officer was named in a judicial order, and made the subject of a CBI investigation, without ever being impleaded. The Court held that an order passed behind the back of a party is a nullity and liable to be set aside on that score alone, and that a person against whom relief is sought on a criminal petition must be impleaded as a respondent, being a necessary party.
On CBI investigations specifically, the Court restated three conditions: the court must find a prima facie case made out; the person against whom investigation is sought must be impleaded and heard; and such a direction is for exceptional circumstances, where the accusation is against someone who by virtue of his post could influence the investigation. It also reiterated that a High Court cannot direct that a case be investigated from a particular angle or by a particular agency, nor tell the police how to investigate — it can insist only on observance of the statutory process.
Waiver — and the Carve-Out That Decided the Point
The respondents argued the bias objection came far too late. The Court accepted the general rule and then found it inapplicable, and the reasoning is precise.
The rule. Waiver is an intentional relinquishment of a right — conscious abandonment of an existing legal right, advantage, benefit, claim or privilege which, but for the waiver, a party could have enjoyed. It is, in substance, an agreement not to assert a right. There can be no waiver unless the person is fully informed as to his rights and, with full knowledge, intentionally abandons them. If a party knows the material facts, is conscious of his legal rights, and yet fails to take the plea of bias at the earlier stage, an effective bar of waiver arises — otherwise a litigant could take a chance on a favourable order and raise bias only on losing.
The carve-out. The question of waiver arises only against a party to the case. Neither the State of Punjab nor the officer had been impleaded as respondents. A person who is not a party has no opportunity to raise the objection at all — and so cannot be said to have abandoned it.
The Court added a further observation of practical value: while the High Court was passing orders to secure the presence of proclaimed offenders, those orders were in the appellants' favour, and they were not aggrieved. They became aggrieved only when the Bench moved on to investigating twenty-year-old disappearances. Timing of the objection is measured from when the grievance arose, not from the start of the proceedings.
Inherent Powers: Section 482 CrPC / Section 528 BNSS
The Court's treatment of inherent power deserves separate attention because it is so frequently misinvoked.
- The power exists to prevent abuse of the process of the Court and to secure the ends of justice — and for nothing else.
- It cannot be exercised to do something expressly barred by the Code. If review is barred, inherent power cannot achieve review.
- It is available where a criminal court's order must be set aside to secure the ends of justice, or where pending proceedings amount to abuse of process.
- It confers no unfettered or arbitrary jurisdiction. It is to be exercised sparingly, with circumspection, and in the rarest of rare cases.
- It cannot be resorted to where the Code provides a specific remedy.
- "To inhere" means to form a necessary part and belong as an attribute in the nature of things — it is not a reservoir of discretion.
A comparison the judgment draws, and which is directly examinable: Section 482 CrPC closely resembles Section 151 of the Code of Civil Procedure, and the restrictions on the use of inherent powers under Section 151 CPC apply equally to Section 482.
The Chain Collapses
Having found the foundation bad, the Court traced the chain in paragraph 70 with some care. The FIR, it said, is an inseparable corollary to the impugned orders which are a nullity. The FIR was based on a preliminary enquiry; the preliminary enquiry was based on affidavits filed with the Section 482 applications; the Section 482 applications could not have been entertained at all.
Therefore: "the very birth of the FIR, which is a direct consequence of the impugned orders, cannot have any lawful existence."
The disposal follows inexorably. The orders being a nullity, the subsequent proceedings, orders, FIR and investigation stood automatically vitiated and were declared non est.
A Bonus Holding: Dismissal of an SLP In Limine
The respondents argued that since an SLP against the same order, filed by another party, had already been dismissed, these appeals must fail too. The Court rejected it, and the restatement is a standard exam answer:
- Dismissal of an SLP in limine does not affirm the reasoning of the High Court, and there is no merger of the High Court's order with the Supreme Court's.
- It means only that the Court did not consider the case worth examining, for a reason which may have nothing to do with merits.
- A non-speaking rejection at the threshold constitutes no declaration of law and is not a binding precedent.
- Res judicata does not apply where the matter is entertained afresh at the behest of other parties.
The Court also restated that a second habeas corpus petition on the same facts before the same High Court is barred by res judicata, subject to the exception of genuinely fresh grounds not known earlier — and that it is substance, not form, that decides whether a ground is new (Srikant v. District Magistrate, Bijapur, (2007) 1 SCC 486).
The Same Provisions Under the New Codes
| Provision | CrPC, 1973 | BNSS, 2023 |
|---|---|---|
| Court not to alter judgment | s 362 | s 403 |
| Inherent powers of the High Court | s 482 | s 528 |
| Police power to investigate / Magistrate's direction | s 156 | s 175 |
| Recording of confessions and statements | s 164 | s 183 |
| Examination of complainant | s 200 | s 223 |
| Information in cognizable cases (FIR) | s 154 | s 173 |
| Supreme Court's power of review | Article 137 — unchanged | |
| Inherent powers of civil courts | Section 151 CPC — unchanged | |
And the pattern recurred, under the new Sanhita.
In State of Rajasthan v. Parmeshwar Ramlal Roshi, 2025 INSC 1205, the Supreme Court set aside High Court orders which had recalled an earlier order and transferred an investigation to the CBI. The holding: a criminal court has no power to recall or review its own judgment except to correct clerical errors, by virtue of Section 403 BNSS; and Section 528 BNSS cannot be used to circumvent that express bar. The Court also held that where a petition has been dismissed as withdrawn without liberty, a fresh petition seeking identical relief cannot be entertained merely by changing the statutory label. Fourteen years after Bhullar, the same error, the same answer, new section numbers.
What the Maxim Does Not Do
Because sublato fundamento is quoted so freely, it is worth being clear about its limits. Three in particular:
It applies to nullities, not to errors. The foundational order must be bad in law in the sense of being void — passed without jurisdiction, in breach of natural justice, by a biased adjudicator, or through abuse of process. An order that is merely wrong but within jurisdiction is valid until set aside, and things done under it are not automatically swept away. The distinction between void and voidable is doing all the work in this maxim, and an answer that ignores it will overstate the principle.
It is not self-executing in practice. The Supreme Court says consequential acts fall "automatically", and doctrinally that is right. But a party still has to go to a competent forum and get the foundational order set aside — which is precisely what took the appellants from 2007 to 2011, with a stay in the interim.
It decides nothing about the merits. This is the point most often lost. The Supreme Court quashed the FIR because it had no lawful origin. It made no finding that the underlying allegations were false, and quashing on this ground is neither an acquittal nor a clean chit. A proceeding properly initiated, by a competent forum, following the statutory route, is a different structure on a different foundation — and the maxim says nothing against it.
Where This Argument Actually Wins Cases
The principle is a practitioner's tool, not just an exam topic. It bites wherever a chain of consequences rests on one defective first step:
- Cognizance taken without valid sanction — the trial that follows is built on nothing.
- Search or seizure in breach of a mandatory statutory safeguard, and everything flowing from it.
- Assessment or demand founded on a notice that was never validly served.
- Dismissal from service on the basis of an enquiry conducted without notice — and every consequential order of recovery or forfeiture.
- Auction or allotment made under a cancelled or void parent order.
- An arrest or remand that did not comply with the Code, and the custody built on it.
The drafting discipline the maxim demands is simple: identify the first defective step and attack that, rather than challenging each consequential order on its own merits. If the first step falls, the rest follows without separate argument.
For the Exam
| Point |
|---|
| 1. Sublato fundamento cadit opus — the foundation being removed, the structure falls. Applies to judicial, quasi-judicial and administrative proceedings alike. |
| 2. If an order at the initial stage is bad in law, all further consequential proceedings are non est — Mangal Prasad Tamoli, (2005) 3 SCC 422. |
| 3. A right in law exists only when it has a lawful origin — C. Albert Morris, (2006) 1 SCC 228. |
| 4. Section 403 BNSS / 362 CrPC: no review; court is functus officio on signing; the bar is absolute and inherent power cannot defeat it. |
| 5. Recall is not review. An order that is a nullity for want of jurisdiction, breach of natural justice or abuse of process can be recalled — s 362 never engages. |
| 6. Bias: appearance suffices; actual bias need not be proved. Test — real likelihood, judged by a fair-minded and informed person. Result — nullity, coram non judice. |
| 7. Doubt is resolved in favour of recusal (Locabail); a Judge should recuse before objection is taken. |
| 8. Waiver requires full knowledge and intentional abandonment — and cannot run against a person who was never a party. |
| 9. The Chief Justice is master of the roster; no Bench assumes jurisdiction over an unallotted case. |
| 10. Section 528 BNSS / 482 CrPC resembles Section 151 CPC, and the same restrictions apply. Sparingly, with circumspection, rarest of rare, never where a specific remedy exists. |
| 11. Before a CBI investigation is directed: prima facie case, the person impleaded and heard, and exceptional circumstances. No direction as to agency or angle. |
| 12. Dismissal of an SLP in limine is not affirmation, works no merger, declares no law, and is not a binding precedent. |
The Court's own summary, in paragraph 78, is as good a closing line as any: "The process adopted by the High Court led to greater injustice than securing the ends of justice." Procedure is not a technicality standing between a court and a just result. In this case it was the only thing standing between a citizen and a criminal investigation ordered by a Judge he had once been asked to investigate.
Related on Lawizard
- "No Coercive Steps" Means "Do Not Arrest": Interim Protection Does Not Bar a Charge Sheet — another Section 528 BNSS problem, decided this month.
- Attempt, Abetment and Criminal Conspiracy — Sections 45 to 62, BNS 2023
- IPC to BNS Section Converter — search any section across both codes.
- AOR Exam 2027: Syllabus, Eligibility and Complete Guide — Bhullar is standard reading for Practice and Procedure.
Disclaimer: This is a case comment on State of Punjab v. Davinder Pal Singh Bhullar & Ors., (2011) 14 SCC 770, decided on 7 December 2011 by a Bench of B.S. Chauhan and A.K. Patnaik, JJ., prepared from the reported text of the judgment for the guidance of law students and candidates preparing for judicial services, the AOR examination, UGC-NET and university examinations. Passages in quotation marks are taken from the judgment; all other analysis, including the section on the limits of the maxim and the illustrative situations in which it may be invoked, is the author's own commentary and is identified as such. In keeping with the Supreme Court's own approach, the Judge whose conduct was in issue is referred to only as "Mr. Justice X", as in the judgment itself. The description of the facts follows the Court's narration and the allegations recorded in it are set out as allegations; the Court quashed the impugned orders and the resulting FIR for want of a valid legal foundation and made no adjudication on the truth of the underlying allegations, and no inference should be drawn either way as to any person named or unnamed. BNSS and BNS correspondences are given for study convenience and should be verified against the bare Acts. Case citations are given for reference and the reports should be consulted in full. This is general legal information and not legal advice. Please read our Disclaimer for more details.
