Full Judgment Text
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PETITIONER:
RAO SHIVA BAHADUR SINGH
Vs.
RESPONDENT:
THE STATE OF VINDHYA PRADESH AND ANOTHER.
DATE OF JUDGMENT:
05/04/1955
BENCH:
MUKHERJEE, BIJAN KR. (CJ)
BENCH:
MUKHERJEE, BIJAN KR. (CJ)
DAS, SUDHI RANJAN
BOSE, VIVIAN
SINHA, BHUVNESHWAR P.
IMAM, SYED JAFFER
CITATION:
1955 AIR 446 1955 SCR (2) 206
ACT:
Constitution of India-Art. 145(3)-Construction of-Supreme
Court-Whether competent to split up the case for the purpose
of hearing and decision.
HEADNOTE:
Held (Per MUKHERJEA C.J., DAS, VIVIAN BOSE, and IMAM JJ.
SINHA J. dissenting) that a Constitution Bench of five or
more Judges before which a case happens to be posted in the
first instance
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is competent to split up the case by deciding the
constitutional questions and leaving the rest of the case to
be dealt with and disposed of by a Division Beach of less
than five Judges on merits in conformity with the opinion of
the Constitution Bench.
The splitting up of cases into different stages for hearing
and decision is not repugnant to the Constitution or the
general principles of procedural law. The underlying
principle of the Constitution is clear and all that it
insists upon is that all constitutional questions should be
heard and decided by a Bench of not less than five Judges.
As long as this requirement is fulfilled there can be no
constitutional objection to the rest of the case being
disposed of by a Division Bench of less than five Judges, so
as to save the time of the Constitution Bench of five or
more Judges.
There is no general rule of indivisibility of a case for the
purpose of its hearing and decision: vide.proviso to Article
145(3) and Article 228 of the Constitution, s. 24 and Order
18, Rule 15 of the Code of Civil Procedure and ss. 350, 526,
528 and 556 of the Code of Criminal Procedure.
Article 145(3) of the Constitution cannot be so construed as
to deprive the Supreme Court of the inherent power of
splitting up a case for the purpose of hearing and
decision .
Per SINHA J.-The Constitution while laying down clause (3)
of Article 145, contemplates the whole matter in controversy
arising in a case, which may include substantial questions
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of law as to the interpretation of the Constitution as also
other questions. The main clause (3), excepting cases
coming within the purview of the proviso, does not
contemplate a splitting up of a case into parts, one -part
involving substantial questions of law as to the
interpretation of the Constitution and another part or parts
not involving such questions.
The language of clause (3) of Article 145 does not warrant
the hearing of a case piecemeal by different Benches unless
it comes within the purview of the proviso. The proviso is
meant to cover only a limited class of cases which otherwise
would have come within the purview of the main clause (3).
But the proviso cannot have a larger effect than is
justified by its language, viz., that only a question of
that description has to be referred for the opinion of the
larger Bench, the case itself remaining on the file of the
smaller Bench. The proviso thus makes a clear distinction
between a "case" and a "question".
Maulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz (L.R. 24
I.A. 22), Burrowes v. High Commission Court (3 Bulst. 48)
and Habibar Rahman v. Saidannessa Bibi (I.L.R. 51 Cal. 331),
referred to.
JUDGMENT:
ORIGINAL JURISDICTION: Petition No. 40 of 1955.
Under Article 32 of the Constitution for a Writ of Habeas
Corpus.
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Purshottam Trikumdas, (K. B. Asthana, Syed Murtaza Fazl
Ali and Rajinder Narain, with him) for the petitioner.
M.C. Setalvad, Attorney-General for India and C.K Daphtary
Solicitor-General for India (Porus A. Mehta and R.H. Dhebar,
with them) for the respondents.
1955. April 7. The Judgment of Mukherjea C. J., Das, Vivian
Bose and Imam JJ. was delivered by Das J. Sinha J. delivered
a separate Judgment.
DAS J.-This is a petition for a writ in the nature of a writ
of habeas corpus calling upon the respondents to show cause
why the petitioner, who is now confined in the Central Jail
at Rewa, should not be set at liberty. The petitioner’s
grievance is that he has been deprived of his liberty
otherwise than in accordance with procedure established by
law. A rule nisi having been issued, the respondents have
filed an affidavit by way of return to the writ. The
question for our decision is whether the return is good and
sufficient in law.
The facts leading up to the present petition are few and
simple. In the years 1948 and 1949 the petitioner was the
Minister of Industries in the Government of Vindhya Pradesh
which was at that time an acceding State within the meaning
of section 6 of the Government of India Act, 1935 as amended
in 1947. On the 11th April, 1949 the petitioner was
arrested in Delhi on the allegation that he had accepted
illegal gratification in order to show favour to Panna Dia-
mond Mining Syndicate in the matter of the lease of the
Diamond Mines at Panna. In December, 1949 the petitioner
along with one Mohan Lal, who was the then secretary in the
Ministry of Industries, was put up for trial before the
Court of Special Judge, Rewa, constituted under the Vindhya
Pradesh Criminal Law Amendments (Special Courts) Ordinance
No. V of 1949. The charges were under sections 120-B,
161 465 and 466 of the Indian Penal Code as adapted for
Vindhya Pradesh by the Indian Penal Code (Application to
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Vindhya Pradesh) Ordinance No. XLVIII of
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1949. By his judgment pronounced on the 26th July 1950 the
Special Judge acquitted both the accused. The State
preferred an appeal against that acquittal to the Judicial
Commissioner of Vindhya Pradesh. By his judgment pronounced
on the 10th March 1951 the Judicial Commissioner reversed
the order of acquittal, convicted both the accused and
sentenced them to different terms of rigorous imprisonment
under the different sections in addition to the payment of
certain fines. On the application of the petitioner and his
co-accused the Judicial Commissioner on the 12th March 1951
issued a certificate to the effect that four points of law
raised in the case and formulated by him in his order Were
fit for the consideration of this Court in appeal under
article 134 of the Constitution of India. A petition of
appeal was filed in this Court on the strength of this
certificate of fitness and it was registered as Criminal
Appeal No. 7 of 1951.
As the case involved a substantial question of law as to the
interpretation of the Constitution, it was, in April 1953,
placed before a Bench of five Judges of this Court as
required by article 145(3) of the Constitution. For
convenience of reference we shall call a Bench of five or
more Judges as the Constitution Bench. The validity of the
convictions and sentences was challenged before the
Constitution Bench on the ground that there had been
infringements of articles 14 and 20 of the Constitution. A
further point of law was raised that no appeal lay to the
Judicial Commissioner from the acquittal by the special
Judge. By their judgment pronounced on the 22nd May 1953
the Constitution Bench rejected all these objections. The
judgment concluded with the following direction: "The appeal
is accordingly directed to be posted for consideration
whether it is to be heard on merits". This was evidently
done in view of the fact that the certificate of fitness
granted by the Judicial Cormmissioner was limited only to
four points of law.
The constitutional points having been disposed of, the
appeal was placed before a Division Bench of three Judge who
on the 20th October 1953 ordered
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210
the appeal to be heard on the merits. The appeal was
accordingly put up for hearing before another Division Bench
consisting of three Judges. On the 5th March 1954 this
Division Bench allowed the appeal of Mohan Lal and acquitted
him but dismissed the appeal of the petitioner with respect
to his conviction under sections 161, 465 and 466, Indian
Penal Code, as adapted in Vindhya Pradesh, but set aside his
conviction on the charge under section 120-B. The sentence
of three years’ rigorous imprisonment was maintained but the
sentence of fine was set aside.
On the 18th March 1954 a petition for review was filed on
behalf of the petitioner. It was directed against the
judgment of the Constitution Bench pronounced on the 22nd
May 1953 repelling the constitutional points as well as
against the judgment of the Division Bench dated the 5th
March 1954 dismissing the petitioner’s appeal on the merits.
On objection being taken by the Registry against one
application being filed for the review of two judgments one
of which had been pronounced much earlier than the period
allowed for filing a review application, the petitioner
filed a second application for review of the judgment of the
Constitution Bench and prayed for condonation of the delay
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in filing the same. On the 5th April 1954 the application
for review was put up for hearing before the same Division
Bench which had pronounced the judgment on the merits dated
the 5th March 1954. After considering the points of review
relating to that judgment the Division Bench on the same day
came to the conclusion that no ground had been made out for
review of that judgment and accordingly dismissed the
petition. An order was drawn up as of that date directing
the petitioner who had been previously enlarged on bail to
surrender and serve out his sentence.
On the 12th April 1954 another petition was filed on behalf
of the petitioner praying that the review matter relating to
the judgment of the Constitution Bench delivered on the 22nd
May 1953 be placed before a Constitution Bench for final
disposal. That review application was put up before a
Constitution
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Bench which on the 17th May 1954 declined to entertain the
same.
In the meantime the petitioner had in the last week of April
1954 surrendered and has since then been confined in the
Central Jail at Rewa. The present application has,
therefore, been made for a writ of habeas corpus on the
allegation that the petitioner has been and is being
deprived of his liberty otherwise than in accordance with
procedure established by law.
In the present petition the petitioner has again urged that
the Court of the Judicial Commissioner of Vindhya Pradesh
was not the proper forum for entertaining the appeal against
the judgment of the Special Judge and consequently the
judgment of the Judicial Commissioner setting aside the
acquittal of the petitioner convicting and imposing sentence
of imprisonment was void and inoperative. Alternatively, it
has been urged that, assuming that the Judicial Commissioner
had jurisdiction to hear the appeal from the Special Judge
and his judgment was in accordance with procedure
established by law, the appeal filed by the petitioner in
this Court against the judgment of the Judicial Commissioner
should have been, under article 145(3) of the Constitution,
beard and completely disposed of by the Constitution Bench.
As regards the first point as to the incompetency of the
Court of the Judicial Commissioner to entertain the appeal
from the decision of the Special Judge the same has been
fully dealt with by the Constitution Bench and cannot be
reagitated. Indeed, learned counsel appearing in support of
this petition has not pressed the same. The only point urged
before us is the alternative plea mentioned above which
depends for its decision on a true construction of article
145.
Article 145 by clause (1) authorises this Court, subject to
the provisions of any law made by Parliament and with the
approval of the President to make rules for regulating
generally the practice and procedure of the Court,
including, amongst others, rules as to the procedure for
hearing appeals, as to the entertainment of appeals under
sub-clause (c) of clause (1) of article
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134 and as to the conditions subject to which any judgment
pronounced or order made by the Court may be reviewed and
the procedure for such review. Clauses (2) and (3) of the
article are in the terms following--
"(2)Subject to the provisions of clause (3), rules made
under this article may fix the minimum number of Judges who
are to sit for any purpose, and may provide for the powers
of single Judges and Division Courts.
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(3)The minimum number of Judges who are to sit for the
purpose of deciding any case involving a substantial
question of law as to the interpretation of this
Constitution or for the purpose of hearing any reference
under article 143 shall be five:
Provided that, where the Court hearing an appeal under any
of the provisions of this Chapter other than article 132
consists of less than five Judges and in the course of the
hearing of the appeal the Court is satisfied that the appeal
involves a substantial question of law as to the
interpretation of this Constitution the determination of
which is necessary for the disposal of the appeal, such
Court shall refer the question for opinion to a Court
constituted as required by this clause for the purpose of
deciding any case involving such a question and shall on
receipt of the opinion dispose of the appeal in conformity
with such opinion".
The contention of the petitioner is that the question
whether a particular case involves a substantial question of
law as to the interpretation of the Constitution is to be
examined at the time when the case first comes before this
Court. If at that stage it is found that it is a case
involving a substantial question of law as to the
interpretation of the Constitution it becomes irrevocably
impressed with that character and quality and the minimum
number of Judges who are to sit for the purpose of deciding
such case must be a Constitution Bench, that is to say, a
Bench of at least five Judges. The argument then proceeds
to say that once the Constitution Bench takes seisin of the
case and starts the hearing that
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Bench and that Bench alone must decide the whole of such
case, that is to say, decide all questions, constitutional
or otherwise, arising in the case. Sri Purshottam Trikumdas
who appears in support of this petition has strongly relied
on the language used in clause (3) and contends that "the
case" cannot be split up and that the clause requires the
entire case to be disposed of by the Constitution Bench.
He, therefore, urges that the Division Bench had no
jurisdiction to take up the case involving substantial ques-
tions of law as to the interpretation of the Constitution
and consequently the judgment of that Division Bench
pronounced on the 5th March, 1954 was illegal and void.
According to him, his client’s appeal, in the eye of the
law, remains undisposed of and as he had been let out on
bail until the disposal of his appeal, his detention in jail
pursuant to the judgment of the Division Bench, which is a
nullity, amounts to deprivation of his personal liberty
otherwise than in accordance with procedure established by
law and is an infringement of his fundamental right under
article 21 of the Constitution. The argument at first sight
certainly appears to be plausible but on a deeper
consideration of the constitutional provisions bearing on
the subject and the general principles regulating the
procedural powers of Courts we are unable to accept the same
as sound or well-founded.
In this very case the Judicial Commissioner of Vindhya
Pradesh had granted a certificate of fitness under article
134(1)(c). Consequently under the proviso to clause (3) of
article 145 the appeal might well have been placed before a
Division Bench consisting of less than five Judges. In that
situation, being satisfied that the appeal involved a
substantial question of law as to the interpretation of the
Constitution the determination of which was necessary for
the disposal of the appeal, that Division Bench could refer
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the question for the opinion of a Constitution Bench and on
receipt of the opinion dispose of the appeal in conformity
with such opinion; but to accede to the argument of Sri
Purshottam Trikumdas will lead us to hold that while a
Division Bench of three
214
Judges could split up this very case, had it been posted
before it in the first instance, by referring the con-
stitutional questions to a Constitution Bench for its
opinion and then, after receipt of that opinion, disposing
of the rest of the case on merits in conformity with such
opinion, a Constitution Bench of five or more Judges before
which the case happened to be posted in the first instance
could not split up the case by deciding the constitutional
questions and leaving the rest of the case to be dealt with
and disposed of by a Division Bench of less than five Judges
on merits in conformity with the opinion of the Constitution
Bench thus saving the time of the Constitution Bench.
Reference may also be made to article 228 which authorises
the High Court, if satisfied that a case pending in a Court
subordinate to it involves a substantial question of law as
to the interpretation of the Constitution the determination
of which is necessary for the disposal of the case, to
withdraw the case and either to dispose of the case itself
or determine the said question of law and return the case to
the Court from which it has been so withdrawn so as to
enable the said Court to proceed to dispose of the case in
conformity with the judgment of the High Court. Here again
learned counsel’s argument leads us to hold that while the
High Court can split up a case involving a substantial
question of law as to the interpretation of the Constitution
a Constitution Bench of this Court cannot do so. Apart from
these provisions of the Constitution there are provisions
made by procedural statutes which result in a case being
partly heard by one Judge and partly by another Judge. To
cite only a few instances, reference may be made to section
24 and Order 18, rule 15 of the Code of Civil Procedure and
sections 350, 526, 528 and 556 of the Code of Criminal
Procedure. The argument of Sri Purshottam Trikumdas, pushed
to its logical conclusion, must amount to this that although
Courts operating under the ordinary procedural code may
split up cases into different stages for the purpose of
hearing and decision) a Constitution Bench of this Court
cannot do so if a case involving substantial questions of
law as to
215
the interpretation of the Constitution happens to be posted
before it in the first instance.
Learned counsel for the petitioner recognises the
incongruity that results from his argument but contends that
it cannot be helped because the relevant provisions referred
to above expressly sanction the splitting up of cases
whereas the body of clause (3) of article 145 does not. His
argument is that in the cases mentioned above splitting up
of cases has to be allowed because the special provisions of
the Constitution or other statutes provide for such
splitting up in those cases. He contends that the very fact
that these provisions had to be made clearly indicates that
but for them there could not have been any splitting up of
the case. It is said that these provisions are exceptions
to the general rule of indivisibility of a case. We are
unable to accept this reasoning as correct.
In the first place the proviso to article 145(3), article
228 and the other provisions of the Codes referred to above
quite clearly indicate that the splitting up of cases into
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different stages for bearing and decision is not repugnant
to the Constitution or the general principles of procedural
law. The underlying principle of the Constitution is clear
and all that it insists upon is that all constitutional
questions should be heard and decided by a Bench of not less
than five Judges. As long as this requirement is fulfilled
there can be no constitutional objection to the rest of the
case being disposed of by a Division Bench of less than five
Judges, so as to save the time of the Constitution Bench of
five or more, Judges.
In the next place we are not aware of any such general rule
of indivisibility as is being insisted upon by learned
counsel. There is nothing in principle which requires that
a case,must always be decided in its entirety by one Judge
or one set of Judges even though such a case may
conveniently be dealt with in two or more stages. Indeed,
in Maulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz(1) the
Privy Council pointed out that where a Judge had before
(1) L.R. 24 I.A. 22.
216
him a case consisting of two parts, a question of title and
an incidental question of account depending on title, it did
not require any provision of the Civil Procedure Code to
authorise him to decide the first question and reserve the
second for further investigation and that to treat such a
proceeding as beyond the power of the Court and as an error
which barred the proceedings reserved for further decision
was a serious miscarriage of justice. Indeed, the Court
often exercises its inherent power, if it thinks fit to do
so, to decide questions of jurisdiction or limitation or the
like as preliminary questions reserving other questions of
fact for future investigation. The decision of a case at
two or more stages may and often does result in the case not
being decided by the same Judge, for the Judge who decided
at the first stage may, by reason of death, retirement or
transfer, be not available for deciding the case at the
later stages, it follows, therefore, that no argument can be
founded on any supposed general rule of indivisibility of a
case for the purpose of its hearing and decision.
The consideration that there is no such general rule as is
relied on by learned counsel and that the splitting up of
cases is not generally repugnant to law and in particular to
the Constitution, leads us to the conclusion that in
construing clause (3) of article 145 no quality of
indivisibility need be attributed to the words "the case"
used therein. A case may, to begin with, involve a
substantial question of law as to the interpretation of the
Constitution, but it may cease to do so at a later stage.
Suppose a case which involves a constitutional question is
placed before a Constitution Bench but learned counsel
appearing in support of the case intimates to the Bench that
he does not press any constitutional point, surely he can-
not, in that situation, insist that the time of a Bench of
five or more Judges should be spent on the determination of
a case which, by his own election, has ceased to involve any
constitutional question. Likewise, when the constitutional
questions involved in the case are disposed of by a
Constitution Bench what
217
remains of the case cannot properly or appropriately be
described as still a "case involving a substantial question
of law as to the interpretation of this Constitution". It
should be borne in mind that when a case or appeal is
properly admitted to this Court all that the parties are
entitled to is a decision of this Court and not of any
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Particular Bench. So long as the minimum number of Judges
which the Constitution and the rules framed by this Court
prescribe are present to hear and decide the questions
raised from stage to stage, they represent the Court for the
purpose of giving decisions on its behalf and the parties
get all that they are entitled to under the law. If a Court
is entitled to decide a case in stages, as the Privy Council
has held it can, there is no reason why article 145(3)
should be so construed as to deprive this Court of that
inherent power. It will involve no violation of any
principle of natural justice or of any legal principle if we
construe clause (3) of article 145 as requiring only that
the minimum number of five Judges must sit for the purpose
of deciding any case in so far and as long as it involves a
substantial question of law as to the interpretation of this
Constitution. We find nothing in the language of clause (3)
of article 145 which militates against this interpretation
of that clause. Indeed, it is on this interpretation that
the practice has grown up in this Court for a Constitution
Bench to dispose of all constitutional questions and to
leave the other subsidiary questions for disposal by a
Division Bench of less than five Judges in conformity with
the opinion of the Constitution Bench. There is nothing
that we find in the body of clause (3) of article 145 which
compels us to depart from the famous maxim cursus curiae est
lex curiae which was laid down by Lord Coke in Burrowes v.
High Commission Court(1) and which was quoted with approval
in Habibar Rahman v. Saidannessa Bibi(2).
For reasons stated above we consider that a good and valid
return has been made by the respondents to the rule nisi
issued to them and this application must be dismissed. We
order accordingly.
(1) 3 Bulst. 48, 53.
28
(2) I.L.R. 51 Cal. 331, 335.
218
SINHA J.-I regret to have to differ from my learned brethren
on the construction of article 145(3) of the Constitution
which is the main question in controversy in this case.
Clause (3) of article 145 is in these terms:-
"The minimum number of Judges who are to sit for the purpose
of deciding any case involving a substantial question of law
as to the interpretation of this Constitution or for the
purpose of hearing any reference under article 143 shall be
five:
Provided that, where the Court hearing an appeal under any
of the provisions of this Chapter other than article 132
consists of less than five Judges and in the course of the
hearing of the appeal the Court is satisfied that the appeal
involves a substantial question of law as to the
interpretation of this Constitution the determination of
which is necessary for the disposal of the appeal, such
Court shall refer the question for opinion to a Court
constituted as required by this clause for the ’Purpose of
deciding any case involving such a question and shall on
receipt of the opinion dispose of the appeal in conformity
with such opinion".
It is noteworthy that the Constitution has not vested this
Court with complete power to make rules as to the
constitution of Benches for hearing matters coming before
this Court in its Original, Appellate or Advisery
Jurisdiction. Clause (2) of article 145 has invested this
Court with power to make rules fixing the minimum number of
Judges who are to sit for any purpose and for defining the
powers of single Judges and Division Courts. But this power
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is expressly made subject to the limitation laid down in
clause (3) quoted above; that is to say, where any case
involves a substantial question of law as to the
interpretation of the Constitution (omitting the words not
material for our present purpose) the minimum number of
Judges prescribed by the Constitution to decide such a case
is five. A case may involve questions of law as to the
interpretation of the Constitution, as also other questions.
In this case we have to determine whether clause (3)
contemplates the whole case or a part of a
219
case. In my opinion, the Constitution while laying down
clause (3) of article 145 contemplates the whole matter in
controversy arising in a case which may include substantial
questions of law as to the interpretation of the
Constitution as also other questions. The main clause (3),
excepting cases coming within the purview of the proviso
does not contemplate a splitting up of a case into parts,
one part involving substantial questions of law as to the
interpretation of the Constitution and another part or parts
not involving such questions. My reasons for coming to this
conclusion are as follows:
Clause (3) itself read along with the proviso makes a
distinction between a "case" and a "question" of the nature
indicated in the proviso to the clause. The Constitution
has clearly indicated that cases coming within the purview
of the proviso may be split up so as to admit of the
questions of constitutional importance being determined by a
Bench of at least five Judges who may be described for the
sake of convenience as "Constitution Bench" in
contradistinction to a Division Court consisting of less
than five Judges, as is contemplated in the proviso. The
main clause (3) requires a case of the description therein
set out to be heard and decided by a Constitution Bench,
whereas the proviso contemplates that only the question of
constitutional importance (using a compendious phrase) has
to be decided by a Constitution Bench and the case out of
which such a question arises remaining in the seisin of the
Division Court before which the case was originally placed
for hearing.
The Constitution has placed cases involving substantial
questions of law of constitutional importance on a special
footing. If the framers of the Constitution had intended
that not the whole case but only particular questions of the
nature indicated had to be heard by a minimum number of five
Judges, they would have used words similar to those used in
the proviso making it permissible for the Constitution Bench
to give its opinion for the decision of the case by a
Division Court in conformity with that opinion,
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A reference to the terms of article 228 of the Constitution
would also show that the framers of the Constitution were
fully alive to the difference between the decision of the
"case itself" and a "question of law" of constitutional
importance involved in that case. It has made clear in that
article that the High Court shall either decide the whole
case including the question of law as to the interpretation
of the Constitution which was necessary for the disposal of
the case or determine only such a question or questions and
return the case to the original court for disposal in
conformity with the judgment of the High Court on such
question or questions. The Constitution made these specific
provisions to emphasize that there is a distinction between
determining the case itself and determining a substantial
question of law of constitutional importance.
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Can it be said that if clause (3) of article 145 had been
enacted without the proviso, a case could be heard piecemeal
first by a Constitution Bench which would determine only
questions of law as to the interpretation of the
Constitution, and then the residue of the case being heard
and determined by a Division Court? That, in my opinion,
would not be in compliance with the imperative provisions of
the main clause (3). The framers of the Constitution
therefore enacted the proviso in the nature of an exception
to the general rule laid down in the main clause (3). It
has to be observed that the proviso is limited to appeals
only, subject to the further exception that such appeals
should not have come up to this Court through the process
laid down in article 132 of the Constitution. It is thus
clear that not all cases contemplated in the main clause (3)
but only appeals of a particular description would come
within the qualifying provisions of the proviso.
The word "case" has not been defined but it may be taken as
settled law that it is much wider than a "suit" or an
"appeal". Hence whereas the proviso would apply to appeals
brought up to this court, except those under article 132 of
the Constitution, the main clause (3) would apply to all
appeals and all
221
other matters coming up to this Court in its Original,
Appellate and Advisory jurisdictions. In my opinion, there
cannot be the least doubt that the main provisions of clause
(3) are all-embracing, and contemplate all cases coming up
to this Court.
It has not been contended that the present case comes within
the purview of the proviso but it has been said that if it
is open to a Division Court to refer a question of
constitutional importance to a Constitution Bench, why
should not a Constitution Bench be competent to refer
questions other than those of constitutional importance to a
Division Court? The answer is that whereas the former is
contemplated by the Constitution in terms, the latter is
not. Nor are there any rules to that effect.
But it has been further observed that the splitting up of a
case into parts, one involving questions of constitutional
importance and the remaining part not involving questions of
that kind, is not against the provisions of the
Constitution. But, in my opinion, if the Constitution has
made a specific provision as to the splitting up of a case
into parts, one cognisable by a Court of higher jurisdiction
like a Constitution Bench and the rest by a court of lower
jurisdiction like a Division Court, the argument is not
available that a splitting up of a case apart from those
specific provisions is also permissible. In this connection
reference was made to certain provisions of the Code of
Civil Procedure as also of the Code of Criminal Procedure to
show that those Codes do contemplate hearing of the same
case in part by different courts, but those are all courts
of co-ordinate jurisdiction in which the question of the
power of the court itself relatively to the subject-matter
of the case is not in question. The court which originally
dealt with the case and the court which finally came to hear
and determine the matter were each one of them competent to
deal with the whole matter or any part of it. That is not
the position here. In this case the argument on behalf of
the petitioner is that as admittedly his appeal involved
substantial questions of law as to the interpretation of the
Constitution and as it did not come
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within the purview of the proviso to clause (3) of article
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145 of the Constitution, it should have been dealt with
throughout by a Constitution Bench. It was suggested in
answer to this argument that after the questions of law of
constitutional importance had been dealt with by the
Constitution Bench the case ceased to be one involving such
questions and therefore could have been heard by a Division
Court. But the difficulty in accepting this argument is
that once a Constitution Bench was seized of the case, it
could not transfer it to another Bench for sharing the
decision of that case with it. That Bench should have heard
out the whole case and it had not the power to direct, and
it did not so direct, that the remaining part of the case
should be heard by a Division Court. Once a Constitution
Bench is seized of the case, it has to hear the case to its
conclusion. There was no process known to the rules framed
under the rule-making power of this Court by which a case
once it came before a Constitution Bench could get
transferred from that Bench to a Division Court either
automatically or by orders of any authority. But it has
been suggested that it may happen that a Constitution Bench
may start the hearing of the case, and before the hearing is
concluded one of the Judges is by reason of death or
otherwise disabled from hearing out the case and in that
event the Chief Justice has the power to constitute another
Bench. But that is quite a different matter. In that case
the hearing by the previous Bench comes to nothing and the
Bench constituted afresh by the Chief Justice has to hear
out the whole case afresh.
It has also been suggested on the other side that a "case"
may mean a part of a case. In my opinion, that submission
is not well founded; because, if that argument were accepted
and pushed to its logical conclusion, it may make the
provisions of the main clause (3) of article 145 nugatory.
Article 132 of the Constitution has been, as indicated
above, excepted from the operation of the proviso to clause
(3). Suppose an appeal is brought to this Court under
article 132 of the Constitution as the case involved
substantial
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questions of law as to the interpretation of the Con-
stitution. That case besides involving questions of that
character, may also involve other questions. If the
argument that a "case" includes part of a case were
accepted, then it will be permissible for a Constitution
Bench to hear the questions of constitutional importance and
leave the rest of the case to be determined by a Division
Court, though such a case is expressly excluded from the
operation of the proviso and thus is directly within the
terms of the main clause (3). Hence every case coming
before this Court involving a question of constitutional
importance may be dealt with in part in so far as it relates
to that question by a Constitution Bench and the remaining
part by a Division Court. That, in my opinion, was not
intended by the framers of the Constitution. The term
"case" therefore must mean the whole matter in controversy
before this Court. Such a matter may relate to one of
several questions in controversy in the original court, if
the determination of that question is sufficient to dispose
of the case within the meaning of the Explanation to article
132 of the Constitution.
It was further argued by the learned Attorney-General that
the whole clause (3) of article 145 along with the proviso
must be read together. But even so read, the language of
clause (3) does not warrant the hearing of the case
piecemeal by different Benches unless it comes within the
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purview of the proviso. The proviso is meant to cover only
a limited class of cases which otherwise would have come
within the purview of the main clause (3). But the proviso
cannot have a larger effect than is justified by its
language, viz., that only a question of that description has
to be referred for the opinion of the larger Bench, the case
itself remaining on the file of the smaller Bench. The
proviso thus makes a clear distinction between a "case" and
a "question".
It has also been said there is an inherent power in the
court to transact its business according to its established
practice. In the first place, this Court is still in its
formative stages and it cannot be said to
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have an "established practice". Secondly, it cannot
establish a practice in the teeth of the provisions of the
Constitution which it is pledged to uphold.
The reference to the decision of the Privy Council in Moulvi
Muhammad Abdul Majid v. Muhammad Abdul Aziz(1) is not apt
because in that case the hearing at the two stages of the
trial was to be done by a court of coordinate jurisdiction;
that is to say, a court which could hear and determine the
whole case or each of the two parts of the case taken
separately by itself, unlike the present case in which the
two parts of the hearing have been done by two courts of
unequal power. Similarly the reference to the maxim "
cursus curiae est lex curiae" of Coke C. J. in Burrowes v.
High Commission Court(1), referred to in Habibar Rahman v.
Saidannessa Bibi(3) and to the other cases all proceed on
the assumption that there is nothing in the statute law
against such a course being taken. But, in my opinion, such
a nebulous practice is opposed to the positive provisions of
clause (3) of article 145.
In my opinion therefore, the present case comes directly
within the main clause (3) of article 145 of the
Constitution and is admittedly not covered by the proviso to
that clause. That being so, the petitioner’s appeal to this
Court has not been heard and determined in accordance with
the procedure established by this Constitution and therefore
the petitioner is entitled to the benefit of the protection
afforded by article 21 of the Constitution. His appeal,
therefore, has got to be heard and determined in accordance
with the procedure laid down in article 145(3) of the
Constitution. I would therefore allow the petition to this
extent only that the appeal be heard by a Constitution Bench
on a declaration that the judgment of the Division Court
dated the 5th March 1954 is not that of a competent court.
BY THE COURT:-In accordance with the judgment of the
majority, the petition is dismissed.
(1) L.R. 21 I.A. 22.
(2) 3 Bulst. 48, 53.
(3) I.L.R. 51 Cal. 331, 335.
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