Chinnappa Reddy, J. - (1.) What is the effect of the declaration by the Supreme Court that the appointment of an Additional Sessions Judge was invalid on judgments pronounced by the Judge prior to such declaration is the question for consideration in these criminal appeals. The question may seem to be short and simple but it cannot be answered without enquiry and research. An answer, on first impression, may be 'a judgment by a judge who is not a judge is no judgment' a simple, sophisticated answer. But it appears second thoughts are necessary. What is to happen to titles settled, declarations made, rules issued, injunctions and decrees granted and even executed What is to happen to sentences imposed Are convicted offenders to be set at liberty and to be tried again Are acquitted accused to be arrested and tried again Public Policy is clearly involved. And, in the tangled web of human affairs, law must recognise some consequences as relevant, not an grounds of pure logic but for reasons of practical necessity. To clear the confusion and settle the chaos, judges have invented the de facto doctrine, which we shall presently examine. De facto doctrine is thus a doctrine of necessity and public policy.
(2.) Crl. A. No. 234 of 1976 arises out of a proceeding under S. 6A of the Essential Commodities Act, by which the District Revenue Officer West Godavari, Andhra Pradesh, ordered the confiscation of qs. 203.74 kgs. of paddy and qs. 302.25 kgs, of rice. The appellant, Gokaraiu Rangaraju, preferred an appeal under S. 6C of the Essential Commodities Act to the Court of Session, West Godavari. The appeal was heard by Shri G. Anjappa, Additional Sessions Judge and was rejected. The appellant preferred a Criminal Revision petition before the High Court of Andhra Pradesh. Criminal Appeals Nos. 315 and 316 of 1976 arise out of Sessions Case No. 12 of 1975 in the Court of Session, Guntur Division. The case was heard and the judgment was pronounced by Shri Raman Raj Saxena, II Additional Sessions Judge. Guntur. The convicted accused preferred appeals to the High Court of Andhra Pradesh. By the time the Criminal Revision case filed by Gokaraju Rangaraju and the Criminal Appeals filed by the appellants in Crl. Appeals Nos. 315 and 316 of 1976 came up for hearing before the High Court of Andhra Pradesh, this Court by its judgment dated 2nd September, 1975 quashed the appointment of Shri G. Anjappa, Shri Raman Raj Saxena and two others as District Judges Grade II, on the ground that their appointment was in violation of the provisions of Art. 233 of the Constitution. Thereupon a point was raised in the Criminal Revision case as well as in the Criminal Appeals that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void and required to be set aside. The High Court overruled the point raised by the present appellants and held that though the appointment of Shri Anjappa and Shri Raman Raj Saxena as District Judges Gr. II was invalid, yet they were not mere usurpers but had held office under lawful authority and, therefore, the judgments rendered by them were valid and could not be questioned in collateral proceedings. The present appeals have been preferred by special leave granted by this Court. In Criminal Appeals Nos. 315 and 316 of 1976, however, the special leave granted by this Court was limited by the order granting leave to the question whether the judgments rendered by Sessions Judges were void where their appointment as Sessions Judges was subsequently declared illegal.
(3.) Shri Govindan Nayar learned counsel for the appellants in Crl. A. No. 234 of 1976 and Shri Phadke, learned counsel for the appellants in Crl. Appeals Nos. 315 and 316 of 1976, argued before us that the judgments rendered by Shri Anjappa and Shri Raman Raj Saxena were void as they were never duly appointed as District Judges. It was urged that there was no need for them to question the appointment of Shri Anjappa or Shri Raman Raj Sexena as their appointment had already been quashed by the Supreme Court. It was said that the de facto doctrine was based on public policy and necessity and that in the present case neither public policy nor necessity required that the judgments should not be set aside. No inconvenience would be caused by ordering a rehearing of the appeals or a retrial of the accused, It was also urged that the attack, if any on the appointment of Shri Anjappa and Shri Raman Raj was not a collateral attack. It was submitted that a question of jurisdiction could be raised at any stage in a criminal case and a trial by a Sessions Judge who was appointed in violation of Art. 233 was not a trial by a Sessions Judge duly appointed to exercise jurisdiction in a Court of Session under S. 9 of the Code of Criminal Procedure. It was argued that the de facto doctrine was not an absolute doctrine. It was subject to certain limitations. One such limitation was that imposed by Art. 233 of the Constitution. A person appointed as a District Judge contrary to the provisions of Art. 233 was no judge and his judgments were no judgments. It was submitted that the 20th Amendment of the Constitution would be a surplusage if the de facto doctrine was to be applied to judgments rendered by persons appointed as District Judges contrary to the provisions of Art. 233 of the Constitution. It was also suggested that the Fundamental Right of the appellants under Art. 21 of the Constitution was violated as their liberty was being taken away otherwise than in accordance with the procedure established by law.;