Whether Courts Can Exercise ‘Judicial Discretion’ Against Statute Or Rules?

 We have examined the possibility of granting
relief to the Appellants by taking into account the facts
and circumstances of this case. The Appellants
participated in the selection which was initially for 38
posts which later increased to 74 posts. They could
not be appointed due to the judgment of the High
Court which directed the selection to be only for 38
posts. In view of there being no fault on the part of
the Appellants, we examined whether we could
exercise our judicial discretion to direct their
appointments. We realise that any such direction
given by us for their appointments would be contrary
to the Rules. Judicial discretion can be exercised by a
Court only when there are two or more possible lawful
solutions. In any event, Courts cannot give any
direction contrary to the Statute or Rules made
thereunder in exercise of judicial discretion. It will be

useful to reproduce from Judicial Discretion (1989) by
Aharon Barak which is as follows:
“Discretion assumes the freedom to choose among
several lawful alternatives. Therefore, discretion
does not exist when there is but one lawful option.
In this situation, the judge is required to select that
option and has no freedom of choice. No discretion
is involved in the choice between a lawful act and
an unlawful act. The judge must choose the lawful
act, and he is precluded from choosing the unlawful
act. Discretion, on the other hand, assumes the
lack of an obligation to choose one particular
possibility among several.”
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL No. 8334 of 2013
Anurag Kumar Singh & Ors.

Versus
State of Uttarakhand & Ors.
Dated:October 5, 2016

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Whether failure to follow rules and regulation amounts to offence of cheating or criminal breach of trust?

He will now proceed to consider the final report submitted by the Police (C.I.D.). I should, however, like to observe for the benefit of the learned Magistrate that he will bear in mind that mere failure to follow rules and regulations is neither cheating nor breach of trust. He will also bear in mind while applying himself to the case diary with all thoroughness whether there is any material to show that the Railways have suffered. In order to constitute offence of cheating causation of damage or harm to a person in body, mind, reputation or property is essential. The learned Magistrate will direct his attention to this aspect of the matter. Loss to the Railways cannot be presumed merely from the fact of irregular booking. The learned Magistrate will consider the effect of issuing of despatch advice and forwarding notes by Tisco at the time of despatch of goods. The learned Magistrate will also bear in mind that mere failure to pay does not amount to cheating for, mere breach of contract is not cheating. The attention of the learned Additional Chief Judicial Magistrate is particularly drawn to the cases of Harkrishna Mahatab v. Emperor MANU/BH/0295/1929 : AIR1930Pat209 , Major Robert Stuart Wauchope v. Emperor MANU/WB/0123/1933 : AIR1933Cal800 and the State of Kerala v. A. Prasad Pillai and Anr. MANU/SC/0263/1972 : 1972CriLJ1243 . To my mind that Railway as an organisation profited rather than lost by the unusual procedure adopted in relation to Tisco. The learned. Magistrate will also consider whether the whole case diary reveals any material indicating that any public servant had enriched himself either by bribery or by breach or by breach of faith. After going through the case diary thoroughly the learned Magistrate will decide dehors the recommendation of Superintendent of Railway Police, respondent No. 7 and C.I.D. whether any offence had been committed and if so which accused should be put on trial.

Equivalent Citation: AIR1980SC326, 1980CriLJ98, (1980)1SCC554, (1980)SCC(Cri)272, [1980]2SCR16

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 301 and 300 of 1979

Decided On: 13.11.1979

State of Bihar and Anr. Vs. J.A.C. Saldanha and Ors.

Hon'ble Judges/Coram:

D.A. Desai, O. Chinnappa Reddy and R.S. Sarkaria, JJ.

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