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TMI Blog1955 (4) TMI 58X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Diamond 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 Vindhya Pradesh) Ordinance No. XLVIII of 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 applic ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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. 6. On the 12th April, 1954 another petition was filed on behalf of the petitioner praying that th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. (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 op ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... t 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 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 Judges could split up this very case, had it been posted before it in the first instance, by referring the constitutional question 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 dealing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the general rule of indivisibility of a case. We are unable to accept this reasoning as correct. 13. 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 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. 14. 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 entirely 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 Muham ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d for defining the powers of single Judges and Division Courts. But this power 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 that whole case or a part of a 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 question. My reasons for coming to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nal importance. 21. 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. 22. 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, ex ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ld 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 one 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 Judge ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 27. 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 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. 28. The reference to the decision of the Privy Council in Moulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz L.R. 24 I.A. 22 is not apt because in that case the hearing at the two stages of the trial was to be done by a court of co-ordinate 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 c ..... X X X X Extracts X X X X X X X X Extracts X X X X
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