Dismissed

Mohammed Shiyab v. National Investigating Agency

Karnataka HC20 Dec 2023WP/1781/2023

Case brief

AI extract

What is this about?

In a writ petition under Articles 226 and 227 of the Constitution, the petitioner sought a direction for the trial court to sign or initial every page of the case diary in a criminal trial involving the NIA. The petition was dismissed on the grounds that the Criminal Rules of Practice and Section 172 of CrPC do not mandate such a procedure, and the Court cannot legislate or add procedural requirem

What did the court decide?

Writ petition dismissing the prayer to direct the trial court to sign or initial every page of the case diary.

Mohammed Shiyab Vs National Investigating… — Civil Procedure and Limitation | Karnataka HC (2023)

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IN THE HIGH COURT OF KARNATAKA AT BENGALURU DATED THIS THE 20^TH DAY OF DECEMBER, 2023 BEFORE

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THE HON'BLE MR. JUSTICE M. NAGAPRASANNA WRIT PETITION No.1781 OF 2023 (GM-POLICE)

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BETWEEN:

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SRI.MOHAMMED SHIYAB S/O MOHAMMED SAJID AGED ABOUT 32 YEARS R/AT NO. 1-30, SHETTIYADKA HOUSE GANDHINAGAR, NAVOOR SULLIA TALUK DAKSHINA KANNADA – 574 314.

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... PETITIONER

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(BY SRI MOHAMMED TAHIR, ADVOCATE)

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AND:

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NATIONAL INVESTIGATING AGENCY MINISTRY OF HOME AFFAIRS, (GOI) HYDERABAD BRANCH REPRESENTED BY ITS STANDING COUNSEL SRI PRASANNA KUMAR OFFICE AT HIGH COURT COMPLEX OPP. VIDHANA SOUDHA BENGALURU – 560 001.

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... RESPONDENT

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(BY SRI P.PRASANNA KUMAR, SPL.PP)

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THIS WRIT PETITION IS FILED UNDER ARTICLES 226 AND 227 OF THE CONSTITUTION OF INDIA PRAYING TO DIRECT TRAIL COURT TO SIGN OR PUT INITIALS TO EACH PAGE OF CASE DIARY OF RC-36/2022/NIA/DLI, REGISTERED BY THE RESPONDENT UNDER SECTION 120B, 302 R/W 34 OF IPC AND SECTION 16 OF 18 OF UAP ACT 1967, AT ANNEXURE-D, FROM THE PAGE NO.1 TO TILL THE LAST PAGE AND CONTINUE THIS PRACTICE TILL THE FILING OF CHARGE SHEET AND ETC.,

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THIS WRIT PETITION HAVING BEEN HEARD AND RESERVED FOR ORDERS ON 01.12.2023, COMING ON FOR PRONOUNCEMENT THIS DAY, THE COURT MADE THE FOLLOWING:-

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ORDER

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The petitioner is before this Court seeking a direction by issuance of a writ in the nature of mandamus directing the concerned Court/trial Court to sign or put its initials to each page of the case diary of RC-36/2022/NIA/DLI registered by the respondent/National Investigating Agency (‘NIA’) for offences punishable under Sections 120-B, 302 r/w 34 of the IPC and Sections 16 and 18 of the Unlawful Activities (Prevention) Act, 1967 (‘the Act’ for short). The petitioner has sought a further general direction that the Presiding Officer of the Court in every case should affix his signature or put his initials on each page of the case diary.

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The facts, in brief, germane are as follows:-

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The petitioner is accused No.8 in the aforesaid criminal proceedings. On 27-07-2022, a complaint comes to be registered by one Madhu Kumar on an incident that takes place on 26-07-2022, which becomes a crime in Crime No.63 of 2022 before the Bellare Police Station. The incident was murder of one Praveen Nettaru. After registration of crime, the Police invoke Sections 16 and 18 of the Act apart from Sections 120-B, 302 and 34 of the IPC. The case was then entrusted to the NIA/respondent in the light of invoking Sections 16 and 18 of the Act. The issue in the lis does not concern merit of the matter qua the claims of either of the petitioner or the respondent. Certain orders of remand are made by the concerned Court and in connection with the orders of remand, the case diary is summoned and the case diary is taken back by the Investigating Officer. What happens between the case diary being brought to the Court and taken back is what forms the prayer of the petitioner to seek a mandamus for affixing the signature on every page of the case diary on every occasion by the trial Judge.

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Heard Sri Mohammed Tahir, learned counsel appearing for the petitioner and Sri P. Prasanna Kumar, learned Special Public Prosecutor appearing for the respondent.

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The learned counsel Sri Mohammed Tahir appearing for the petitioner would submit that the case diary is an important piece of document which is recorded by the Investigating Officer at every stage of investigation. He would submit that Section 172 of the Cr.P.C., mandates recording of proceedings of investigation by the Police Officer in the case diary and taking cue from Section 172 Cr.P.C., he would submit that the Magistrate has to affix his signature, as several States in their respective Criminal Rules of Practice, have made it mandatory to affix such signature by the Presiding Officer of the trial Court. He is, therefore, seeking the same relief before this Court.

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The learned Special Public Prosecutor Sri P. Prasanna Kumar representing the NIA/respondent would vehemently refute the submissions to contend that what is being followed by the concerned Court is the Criminal Rules of Practice of the State of

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Karnataka. In the said Rules of Practice, it does not anywhere mandate that the trial Judge should affix his signature at every time when the case diary is summoned to the concerned court. He would submit that if the statute mandates a particular mode of performance of an act, it should be performed in the said manner and not in any other manner. He would seek to place reliance upon the judgments of the Apex Court in the cases of: (i) VARINDER KUMAR v. STATE OF HIMACHAL PRADESH¹ , (ii) MUKESH SINGH v. STATE (NARCOTIC BRANCH OF DELHI)² , (iii) STATE OF KERALA v. MATHAI VERGHESE³ , (iv) UNION OF INDIA v. DEOKI NANDAN AGGARWAL⁴ and (v) MEERA SAHNI v. LIEUTENANT GOVERNOR OF DELHI⁵ .

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I have given my anxious consideration to the submissions made by the respective learned counsel and have perused the material on record.

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1 (2020) 3 SCC 321

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2 (2020) 10 SCC 120

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3 (1986) 4 SCC 746

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4 (1992) Supp (1) SCC 323

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5 (2008) 9 SCC 177

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The incident that led to the matter being transferred to the hands of the NIA is the murder of one Praveen Nettaru. The issue in the case at hand, as observed hereinabove, does not concern the allegations or the defence, but a peculiar circumstance is projected by the learned counsel for the petitioner. The case of the petitioner is that as when a case diary maintained by the Investigating Officer is brought before the Court at the time of passing of every order, be it remand or grant of bail, the Presiding Officer should affix his signature on every page of such diary. The submission is that it would ensure that the Investigating Officer would not tamper with the record. The further submission is that Section 172 of the Cr.P.C., mandates that Criminal Rules of Practice should be in tune with Section 172 of the Cr.P.C., as is found in several States in their respective Criminal Rules of Practice.

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In the light of the aforesaid contention and submission, it becomes necessary to notice Section 172 of the Cr.P.C. Section 172 of the Cr.P.C. reads as follows:

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“172. Diary of proceedings in investigation.—(1) Every police officer making an investigation under this Chapter shall day by day enter his proceedings in the investigation in a diary, setting forth the time at which the information reached him, the time at which he began and closed his investigation, the place or places visited by him, and a statement of the circumstances ascertained through his investigation.

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(1-A) The statements of witnesses recorded during the course of investigation under Section 161 shall be inserted in the case diary.

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(1-B) The diary referred to in sub-section (1) shall be a volume and duly paginated.]

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(2) Any criminal court may send for the police diaries of a case under inquiry or trial in such Court, and may use such diaries, not as evidence in the case, but to aid it in such inquiry or trial.

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(3) Neither the accused nor his agents shall be entitled to call for such diaries, nor shall he or they be entitled to see them merely because they are referred to by the Court; but, if they are used by the police officer who made them to refresh his memory, or if the Court uses them for the purpose of contradicting such police officer, the provisions of Section 161 or Section 145, as the case may be, of the Indian Evidence Act, 1872 (1 of 1872), shall apply.”

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(Emphasis supplied)

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Section 172 deals with diary of proceeding in investigation. It mandates that every Officer making an investigation under the Chapter shall day by day enter his proceedings in the investigation in a diary setting forth the time at which the information reached

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him and the time he began investigation and all other nuances of conduct of investigation. Sub-section (2) would direct that any criminal Court may send for a diary of a case under inquiry or trial and may use such diary not as evidence in the case but to aid it in such inquiry or trial. Sub-section (3) mandates neither the accused nor his agents shall be entitled to call for such diary nor they be entitled to see them merely because they are referred to by the Court, but if they are used by the Police Officer who made them to refresh his memory or if the Court uses them for the purpose of contradicting the Police Officer, the provisions of Section 161 or 145 would apply. Section 172 nowhere indicates that every time the Police Officer gets the case diary to the Court, be it for summoning or refreshing its memory, the Court has to affix its signature on every page of the case diary.

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The practice in the Courts of the State is drawn in terms of Criminal Rules of Practice notified by the State of Karnataka in the year 1968. The Criminal Rules of Practice, insofar as subject aspect is concerned, is dealt with under Chapter-V which deals with investigation and Prosecution. It runs as follows:

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“ INVESTIGATION AND PROSECUTION

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A. Investigation

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1. Report under Section 154 .- (1) On receipt of the report of the Police Officer under Section 154 of the Code, the Magistrate shall make a note on the report of the date and time of the receipt thereof and initial the same. Before initialing, the Magistrate shall also endorse on the report whether the same has been received by post or muddam.

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(2) The report shall be entered in Register No. I.

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2. (1) When a Magistrate directs an investigation of a case under Sections 155(2), 156(3) or 202 of the Code, he shall specify in his order the rank and designation of the Police Officer or the Police Officers by whom the investigation shall be conducted.

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Note. - Ordinarily the investigation should be directed to be held by a Police Officer below the rank of an Assistant Superintendent of Police. But where for special reasons to be recorded in writing, the Magistrate considers it necessary that the investigation should be held by an officer of superior rank, he may direct an Assistant Superintendent of Police to conduct the investigation.

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(2) Magistrates shall take proper steps to enforce the prompt submission of the final report in cases referred by them to the Police for investigation.

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3. (1) Application for Remand under Section 167.- An application for remand to police custody shall mention the grounds and shall also be accompanied by a copy of all entries made up to that stage in the diary maintained under Section 172(1) of the Code.

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(2) The order remanding the accused person to police custody should be made in the presence of the prisoner and after hearing any objection he may put forward to the proposed order.

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(3) Such remand shall be granted only for sufficient reasons to be recorded in writing and only for such period as the Magistrate considers necessary.

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[Vide Section 167(2), (3) and (4) of the Code]

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(4) An accused person who has been produced before a Magistrate for the purpose of making a confession and who has declined to make the same or has made a statement shall not be remanded to police custody.

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On his remand to judicial custody, the Police Officers shall not, except in the presence of a Magistrate, be all9wed either to see him or to have any communication with him.

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4. When a requisition for recording a statement under Section 164 of the Code is received by a Magistrate having jurisdiction to try the offence or commit the accused for trial, he shall direct the accused to be taken before another Magistrate for that purpose, unless the Magistrate, for reasons to be recorded in writing, deems fit to record the statement himself; and when he does so, he shall report the case to the Sessions Judge, who may take case on his own file or refer it to another Magistrate.”

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The report under Section 154, which is the report of the Investigating Officer, is sought by the Magistrate when investigation is directed under Section 155(2), 156(3) or 202 of the Cr.P.C., and an application for remand is sought under Section 167. An application for such remand to police custody shall mention the grounds and shall also be accompanied by a copy of all entries made up to that stage in the diary maintained under Section 172

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supra . The Criminal Rules of Practice nowhere indicates that on every application for remand under Section 167 of the Cr.P.C., though the entries in the case diary maintained under Section 172(1) is to accompany the remand order, it nowhere indicates that the Magistrate has to affix his signature at every point when a remand order is passed or at every time the case diary is summoned to the Court. The Criminal Rules of Practice thus nowhere indicates that the Court can grant the prayer that is sought by the petitioner.

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It is the submission of the petitioner that several States in their respective Criminal Rules of Practice do mandate that the case diary at every point in time, be it remand or summoning, should be signed by the Presiding Officer of the Court. That would not enure to the benefit of the petitioner to seek a direction that the same practice should be followed in the State of Karnataka, notwithstanding no such mandate existing in the Criminal Rules of Practice, 1968 of the State. If the prayer of the petitioner is granted contrary to what the Criminal Rules of Practice would mandate, it would amount to this Court legislating, as it is for

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the legislature to bring in such amendment if it deems fit. This Court in exercise of its jurisdiction under Article 226 of the Constitution of India would not legislate and direct a procedure to be followed in every case as is sought by the petitioner contrary to the Criminal Rules of Practice.

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In the circumstances, reference being made to the judgment of the Apex Court in the case of DEOKI NANDAN AGGARWAL (supra), becomes apposite. The Apex Court has held as follows:

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“14. We are at a loss to understand the reasoning of the learned Judges in reading down the provisions in paragraph 2 in force prior to November 1, 1986 as “more than five years” and as “more than four years” in the same paragraph for the period subsequent to November 1, 1986. It is not the duty of the court either to enlarge the scope of the legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The court cannot rewrite, recast or reframe the legislation for the very good reason that it has no power to legislate. The power to legislate has not been conferred on the courts. The court cannot add words to a statute or read words into it which are not there. Assuming there is a defect or an omission in the words used by the legislature the court could not go to its aid to correct or make up the deficiency. Courts shall decide what the law is and not what it should be. The court of course adopts a construction which will carry out the obvious intention of the legislature but could not legislate itself . But to invoke judicial activism to set at naught legislative

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judgment is subversive of the constitutional harmony and comity of instrumentalities. Vide P.K. Unni v. Nirmala Industries [(1990) 2 SCC 378, 383-84 : (1990) 1 SCR 482, 488] , Mangilal v. Suganchand Rathi [(1964) 5 SCR 239: AIR 1965 SC 101] , Sri Ram Ram Narain Medhi v. State of Bombay [1959 Supp 1 SCR 489 : AIR 1959 SC 459], Hira Devi (Smt) v. District Board, Shahjahanpur [(1952) 2 SCC 154 : 1952 SCR 1122, 1131: AIR 1952 SC 362] , Nalinakhya Bysack v. Shyam Sunder Haldar [1953 SCR 533, 545: AIR 1953 SC 148], Gujarat Steel Tubes Ltd. v. Gujarat Steel Tubes Mazdoor Sabha [(1980) 2 SCC 593 : 1980 SCC (L&S) 197: (1980) 2 SCR 146], G. Narayanaswami v. G. Pannerselvam [(1972) 3 SCC 717: (1973) 1 SCR 172, 182], N.S. Vardachari v. G. Vasantha Pai [(1972) 2 SCC 594: (1973) 1 SCR 886], Union of India v. Sankal Chand Himatlal Sheth [(1977) 4 SCC 193: 1977 SCC (L&S) 435: (1978) 1 SCR 423] and CST v. Auriaya Chamber of Commerce, Allahabad [(1986) 3 SCC 50, 55: 1986 SCC (Tax) 449: (1986) 2 SCR 430, 438] . Modifying and altering the scheme and applying it to others who are not otherwise entitled to under the scheme, will not also come under the principle of affirmative action adopted by courts sometimes in order to avoid discrimination. If we may say so, what the High Court has done in this case is a clear and naked usurpation of legislative power.”

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(Emphasis supplied)

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The Apex court holds that it is not the duty of the Court either to enlarge the scope of legislation or the intention of the legislature when the language of the provision is plain and unambiguous. The Court cannot rewrite, recast or reframe the legislation for the good reason that it has no power to legislate. The power to legislate has not been conferred upon the Court. Therefore, the Court cannot add words to a statute or read words into the statute which are not

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there. This view was in reiteration of what it earlier held in the case of MATHAI VERGHESE ( supra ) wherein the Apex Court has held as follows:

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“6. Outcome.—This analysis reveals that the legislative embargo against counterfeiting envelops and takes within its sweep “currency notes” of all countries. The embargo is not restricted to “Indian” currency notes. The legislature could have, but has not, employed the expression “Indian currency note”. If the legislative intent was to restrict the parameters of prohibition to “Indian currency” only, the legislature could have said so unhesitatingly. The expression “currency note” is large enough in its amplitude to cover the currency notes of ‘any’ country. When the legislature does not speak of currency notes of India the court interpreting the relevant provision of law cannot substitute the expression “Indian currency note” in place of the expression “currency note” as has been done by the High Court. The High Court cannot, do so for, the court can merely interpret the section; it cannot re write, recast or redesign the section. In interpreting the provision the exercise undertaken by the court is to make explicit the intention of the legislature which enacted the legislation. It is not for the court to reframe the legislation for the very good reason that the powers to “legislate” have not been conferred on the court. When the expression “currency note” is interpreted to mean “Indian currency note”, the width of the expression is being narrowed down or cut down. Apart from the fact that the court does not possess any such power, what is the purpose to be achieved by doing so? A court can make a purposeful interpretation so as to ‘effectuate’ the intention of the legislature and not a purposeless one in order to “defeat” the intention of the legislators wholly or in part. When the court (apparently in the course of an exercise in interpretation) shrinks the content of the expression “currency note”, to make it referable to only “Indian currency note”, it is defeating the intention of the legislature partly inasmuch as the court makes it lawful to counterfeit notes other than Indian currency notes. The manifest purpose of the provision is that

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the citizens should be protected from being deceived or cheated. The citizens deal with and transact business with each other through the medium of currency (which expression includes coins as also paper currency that is to say currency notes). It is inconceivable why the legislature should be anxious to protect citizens from being deceived or cheated only in respect of Indian currency notes and not in respect of currency notes issued by other sovereign powers. The purpose of the legislation appears to be to ensure that a person accepting a currency note is given a genuine currency which can be exchanged for goods or services and not a worthless piece of paper which will bring him nothing in return, it being a counterfeit or a forged currency note. Would the legislature in its wisdom and anxiety to protect the unwary citizens extend immunity from being cheated in relation to Indian currency notes but show total unconcern in regard to their being cheated in respect of currency notes issued by any foreign State or sovereign power? In the modern age a tourist from a foreign country may bring from his own country into India currency to the extent permissible under the law in India. So also he may obtain foreign currency in exchange of Indian currency whilst in India provided he does so to the extent permissible by the Foreign Exchange Regulation Act, 1973 and operates through an authorised person known as money changer. Would it be reasonable to assume that the legislature was totally oblivious of the need to protect them from being deceived and defrauded? It would be unwise to do so in the face of the internal evidence which provides a clue to the legislative anxiety on this score. In fact the framers of the Code were so anxious to protect the general public from fraudulent acts of counterfeiters that not only have they defined the word “counterfeit” in very wide terms in the Penal Code, but they have also prescribed a rule of evidence in Explanation 2 so as to draw an adverse presumption against the maker of the counterfeit article, as is evident from the definition of the term “counterfeit” read with the Explanations in Section 28 of the Indian Penal Code.”

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(Emphasis supplied)

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Earlier the Apex Court had held that intention of the Legislature cannot be whittled by the Court in an exercise to reframe the legislation, as Courts are not conferred with such power.

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In the light of the law laid down by the Apex Court in the afore-quoted judgments, if the prayer of the petitioner is acceded to, it would run foul of those principles elucidated by the Apex Court. In effect, the petitioner is asking this Court to reframe the legislation by adding the words that the Magistrate should affix his signature at every page of the case diary while it is not the mandate of the statute. This Court cannot legislate, the prayer thus cannot be granted.

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The learned counsel for the petitioner has strenuously contended that such procedure is necessary, as the Investigating Officers can tamper when the case diary is not signed by the Presiding Officer of the Court at every stage. This is again unacceptable as the Constitution Bench of the Apex Court in the case of MUKESH SINGH ( supra ) has held as follows:

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“5.7. Further, Illustration (e) to Section 114 of the Evidence Act which permits the court to raise a presumption that official acts have been regularly performed.

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6.11. Abuse of power cannot be presumed. Fairness of investigation would always be a question of fact. In the absence of an express prohibition in the Code barring investigation by a complainant himself, the statutory incorporation of the rule that credit should be given to public officers who have acted in the limits of their authority. The law is that invalidity of the investigation has no relation to the competence of the court. And the object of the Code that matters of failure of justice should be left to the discretion and vigilance of the courts; hence, the formulation of a general rule as contained in para 25 of Mohan Lal [Mohan Lal v. State of Punjab, (2018) 17 SCC 627 : (2019) 4 SCC (Cri) 215] is wrong.

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11. Now so far as the submission on behalf of the accused that so far as the NDPS Act is concerned, it carries a reverse burden of proof under Sections 35 and 54 and therefore if the informant who himself has seized the offending material from the accused and he himself thereafter investigates the case, there shall be all possibilities of apprehension in the mind of the accused that there shall not be fair investigation and that the officer concerned shall try to prove his own version/seizure and therefore there shall be denial of the “fair investigation” enshrined under Article 21 of the Constitution of India is concerned, it is required to be noted that whether the investigation conducted by the informant concerned was fair investigation or not is always to be decided at the time of trial. The informant/investigator concerned will be cited as a witness and he is always subject to cross-examination. There may be cases in which even the case of the prosecution is not solely based upon the deposition of the informant/informant-cuminvestigator but there may be some independent witnesses and/or even the other police witnesses. As held by this Court in a catena of decisions, the testimony of police personnel will be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by

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independent witnesses his testimony cannot be relied upon.[See Karamjit Singh v. State (NCT of Delhi) [Karamjit Singh v. State (NCT of Delhi), (2003) 5 SCC 291: 2003 SCC (Cri) 1001] .] As observed and held by this Court in Devender Pal Singh v. State (NCT of Delhi) [Devender Pal Singh v. State (NCT of Delhi), (2002) 5 SCC 234 : 2002 SCC (Cri) 978] , the presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor.

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11.1. At this stage, reference may be made to Illustration (e) to Section 114 of the Evidence Act. As per the said provision, in law if an official act has been proved to have been done, it shall be presumed to be regularly done. Credit has to be given to public officers in the absence of any proof to the contrary of their not acting with honesty or within limits of their authority. Therefore, merely because the complainant conducted the investigation that would not be sufficient to cast doubt on the entire prosecution version and to hold that the same makes the prosecution version vulnerable. The matter has to be left to be decided on a case-to-case basis without any universal generalisation.”

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(Emphasis supplied)

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The Apex Court observes that the presumption that a person acts honestly applies as much in favour of a Police Officer as of other persons, and it is not judicial approach to distrust and suspect the Police Officer without good grounds therefor. The Apex Court notices illustration (e) to Section 114 of the Indian Evidence Act which raises a presumption that official acts have been regularly performed. The Apex Court further holds that abuse of power cannot be presumed. Fairness of investigation would always be a

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question of fact. Therefore, on the plea that the petitioner has generated a rational apprehension that the Investigating Officer would not be fair, if accepted, would run counter to the observations made by the Apex Court supra .

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In the aforesaid circumstances it becomes germane to

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notice the judgment of the Apex Court in the case of VARINDER KUMAR ( supra ) where it is held as follows:

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“11. The paramount consideration being to interpret the law so that it operates fairly, the facts of that case did not show any need to visualise what all exceptions must be carved out and provided for. The attention of the Court was also not invited to the need for considering the carving out of exceptions.

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12. Individual rights of the accused are undoubtedly important. But equally important is the societal interest for bringing the offender to book and for the system to send the right message to all in the society—be it the law-abiding citizen or the potential offender. “Human rights” are not only of the accused but, extent apart, also of the victim, the symbolic member of the society as the potential victim and the society as a whole.”

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(Emphasis supplied)

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The Apex Court holds that the paramount consideration of the Court is to interpret the law so that it operates fairly, and not to carve

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exceptions contrary to law. The Apex Court further holds that individual rights of the accused are not only undoubtedly important, but equally important is the societal interest to bring the offender to book. Therefore, the petitioner suffering the order of remand at the hands of the concerned Court or denial of bail would not mean that the Court would legislate accepting the prayer of the petitioner.

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It is further settled principle of law that if an action has to be taken in a particular manner as obtaining under a statute, it must be taken in that manner only. Reference being made to the judgment of the Apex Court in the case of MEERA SAHNI ( supra ) would be apposite, wherein it is held as follows:

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“35. It is by now a certain law that an action to be taken in a particular manner as provided by a statute, must be taken, done or performed in the manner prescribed and in no other manner. In this connection we may appropriately refer to the decision of this Court in Babu Verghese v. Bar Council of Kerala [(1999) 3 SCC 422] wherein it was held as under: (SCC pp. 432-33, paras 31-32)

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“31. It is the basic principle of law long settled that if the manner of doing a particular act is prescribed under any statute, the act must be done in that manner or not at all. The origin of this rule is traceable to the decision in Taylor v. Taylor [(1875) 1 Ch D 426] which was

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followed by Lord Roche in Nazir Ahmad v. King Emperor [(1936) 63 IA 372 : AIR 1936 PC 253 (2)] who stated as under : (IA pp. 381-82)

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‘where a power is given to do a certain thing in a certain way, the thing must be done in that way or not at all.’

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32. This rule has since been approved by this Court in Rao Shiv Bahadur Singh v. State of Vindh Pradesh [AIR 1954 SC 322] and again in Deep Chand v. State of Rajasthan [AIR 1961 SC 1527]. These cases were considered by a three-Judge Bench of this Court in State of U.P. v. Singhara Singh [AIR 1964 SC 358] and the rule laid down in Nazir Ahmad case [(1936) 63 IA 372: AIR 1936 PC 253 (2)] was again upheld. This rule has since been applied to the exercise of jurisdiction by courts and has also been recognised as a salutary principle of administrative law.””

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(Emphasis supplied)

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The Apex Court reiterates the well settled principle of law by following the judgment in the case of BABU VERGHESE v. BAR COUNCIL OF KERALA⁶ holding that if a statute prescribes an action to be taken in a particular manner as provided under the statute, it must be taken in the said manner and no other manner. Therefore, the prayer of the petitioner cannot be accepted on the plea that he would suffer prejudice if the Presiding Officer of the Court would not sign the case diary on every occasion, as the 6 (1999) 3 SCC 422

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statute does not mandate such exercise and when the power is given to do certain thing in a certain way, it must be done in the same way only. The duty cast in terms of the Criminal Rules of Practice is what is quoted hereinabove. It nowhere mandates what the petitioner is seeking. Therefore the petition does not merit any consideration qua the prayer that is sought.

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Petition lacking in merit, necessarily meets its dismissal and is accordingly dismissed.

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Sd/JUDGE

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bkp CT:MJ

Mohammed Shiyab v. National Investigating Agency

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Mohammed Shiyab v. National Investigating Agency

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