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TMI Blog1963 (11) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... of acquittal in the same judgment against either of which an appeal can be filed. If both are convicted there are two orders of conviction. If both are acquitted there are two orders of acquittal. If both are acquitted at the trial, it is open to the State to file an appeal against the acquittal of both the persons or against the acquittal of one of the two persons only. Usually a Judge acquitting an accused person considers the case against that person and acquits him. When there are two accused persons the trying Judge considers the case against one of the two accused persons finds him not guilty and acquits him and repeats this process for the other accused, if he finds that the case against both of them is not proved beyond reasonable doubt. Section 258, Cr. P. C. also shows that in a judgment pronounced at the end of a trial there are at least as many orders of conviction or orders of acquittal as there are accused persons. Even if one person is tried there may be an order of conviction and an order of acquittal in respect of the same accused person if he is convicted of ,the charge tinder one section but acquitted of the charge under another section. Properly speaking, theref ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of acquittal. 5. For the detailed reasons given by me in my judgment in Lalu Jela v. State of Gujarat Criminal Appeal No. 395 of 1961, : (AIR 1962 (Gujarat 350), I am not prepared to accept the view that decisions of any Bench of the Gujarat High Court are. binding in law on other Judges of the High Court. Under the Constitution of India, High Courts should apply the Indian laws and not other laws. The omission to apply the provision of an Indian law applicable to a subject-matter would make the judgment per incuriam and defective. In the same manner to apply a law or a principle of law which is not found in the Indian laws but which is found elsewhere either in the written laws of other countries or in the books of writers would make a judgment defective. Of course, it is the duty of Judges to apply and ex- pound the written laws of their country. While doing so, they might meet with a word of expression which is of ambiguous import. In order to understand the meaning of the word or expression used in the written law of India, Judges may refer to dictionaries or perhaps to the meaning given to the same expression in the Indian case law and in the written law or case law of ot ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e Act to be relevant and duly proved. For the purpose of evidence the Evidence Act treats judgments as facts and there is a group of sections in the Evidence Act, namely Sections 40 to 44 which is headed 'judgments of Courts of Justice when relevant'. Section 43 of the Evidence Act reads thus: - Judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act . 10. For a High Court Judge to say that he decides a case in a particular way in view of the judgment of another Judge is to base his judgment upon the judgment of another Judge. For a High Court Judge to say that he dismisses an appeal because in view of the judgment of another High Court Judge there is no merit in the point of law urged before him is to base his judgment on the judgment of another High Court Judge, which is contrary to Sections 165 and 43 of the Evidence Act. To do so will be contrary to Section 165 of the Evidence Act and also to the oath taken by him. 11. A judgment consists of statements of facts, summary of arguments, deci ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s given, Mahakore Baj v. Bhikabhai Sankalchand AIR 1935 Bom 28). According to Sir Beaumont, the then Chief Justice of the Bombay High Court, decisions of the Division Benches of the Bombay Court are not binding on single Judges of the Bombay High Court. 14. Halsbury (3rd Ed. Vol. 22, para 1689) observes that the modern practice is that a judge of first instance will usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. If he is so convinced, the judgment is not binding and may not be followed. Halsbury observes that that is not a rule of law but it is the practice. 15. Even Halsbury who explains the position under a common law system recognises that judgments are not binding. Even Halsbury observes that the modern practice is that a judge of the first instance will usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. Halsbury clearly mentions that a Judge of the first instance need not follow the decision of another Judge of the first instance if he is convinced that a judgment is wrong. In other words, a judgment need not be followed by another Jud ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... them untrue to their oath and to make a travesty of freedom of judgment and independence of judiciary. 17. Judges take oath to apply the laws. Not to apply a principle which is found in the written laws would vitiate the judgment of a Judge. Similarly to apply a principle which is not found in the laws would vitiate the judgment and would amount to a violation of the oath taken by Judges to enforce and apply the laws. Judges are not entitled to legislate and to introduce or create principles which are not found in the law. Whatever principle' a Judge applies must have reference to the language used in the laws. 18. The supposed rule of binding nature of High Court judgments is not based on anything in the written law and has no reference to anything in the written law, To apply such a rule is tantamount to legislation and to a breach of the oath taken by Judges. 19. If a High Court Judge follows the view expressed by other High Court Judges on the ground that that view is binding on him and he does not apply his own view, his judgment would be vitiated. If a District Magistrate having power under the law to pass a judicial order if he is satisfied on a certain point, p ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of that expression is. The principle that judgments of Courts of co-ordinate jurisdiction should be treated as binding and that the Division Courts of the Bombay High Court and Division Courts of Gujarat High Court are Courts of co-ordinate jurisdiction would depend on applying the principle that judgments of Courts of co-ordinate jurisdiction are binding on other Courts of co-ordinate jurisdiction This principle is not found anywhere in the writ ten law of India and cannot be deduced from any words used in the written law of India. To apply the principle that the decision of a Court is binding on all Courts of co-ordinate jurisdiction and then to proceed to determine the meaning of the expression 'Courts of co-ordinate jurisdiction' which is not found in the Indian laws, would, in my humble opinion, be not quite proper. 22. For the reasons given by me in my judgment in Criminal AIR1962Guj250 which is lengthy and the reasoning of which should be treated as part of this judgment, and for the above reasons. I hold that the first duty of a Judge is to be true to the oath taken by him and to apply the Indian Constitution and the Indian laws only. I am not prepared to say wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cussion, it is correct to-state that in common law jurisdictions judicial decisions are binding on subordinate Courts, and in some measure on co-ordinate Courts and on the deciding Court itself, while the civil law world does not regard judicial pronouncements as binding in subsequent cases. I refer to this book not with intention of applying the principle stated therein but to show that the views that I have already expressed are not startling ones. Support for a Judge's judgment must) always be found in the written law, but I am not enunciating a new principle and need not refer to any written law as forming the basis of any principle enunciated by me. I merely say that another principle sought to be suggested by others cannot be supported by any language in the written law, and, therefore, the judgments of Courts of India other than the Supreme Court are not binding on other Courts. 24. The judgments of the Division Benches, who have considered the question of maintainability of a joint criminal appeal, are not binding in law hut at the same tune, they are entitled to the greatest respect and consideration, and if it is at all possible, I must try to agree with that r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iscipline. The oath taken by a Judge, the Constitution and the laws including Article 141 of the Constitution are supreme and their supremacy is unchallengeable. 27. In any case, in my humble view, for the reasons stated by me in Criminal AIR1962Guj250 , the judgment of the Division Court of three Judges is obiter, per incuriam, etc. It is per incuriam because the effect of Section 1965419, Cri. P. C. was not considered. No doubt, my learned brother Shelat, J. (as he then was) has referred to that Section and observed that there is nothing in that section which prohibit the presentation of a joint memo of appeal. With great respect, I cannot agree because that section enjoins that every appeal shall be in the form of a petition which means that there cannot be a joint petition in respect of two appeals or in respect of a matter which has to be treated as two appeals. In the matter of trials the Criminal Procedure Code has enacted provisions dealing with the question as to in what circumstances there can be a joint trial of accused persons. The Code, however made no provision for joint appeals because obviously it does not want to permit joint appeals. If the legislature had want ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rtial dismissal and the Supreme Court has held that a partial dismissal is invalid. Therefore if there is a single appeal against the orders of acquittal of several persons an invalid order may be passed. Therefore, in such a case a single appeal is not maintainable. 31. If the Legislature has made a provision for separate appeals and has not made any provision for a joint appeal, it is a bounden duty of Judges to apply the laws of India whether they are convenient or not. As already stated, it cannot be said that the provisions of Section 419, Cri. Pro.. Code are inconvenient to any advocate or to any lawyer or litigant. For a trifling inconvenience, we cannot sacrifice the sacredness of the Indian law, which Courts are bound to uphold even at the cost of convenience. No ground whatsoever can justify a Judge for not applying the laws as he understands them. In the judgment of my learn-ed brother Justice Shelat (as he then was) (Sic). No further arguments have been advanced, which are not found in the judgment of the Division Bench consisting of three Judges except that the question whether the judgment was per incuriam or not has been referred to. In the Full Bench judgment, th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ies to the best of knowledge and judgment. The conclusions contained in his judgment must be based on his judgment and not on a judgment of another High Court Judge or another Bench of High Court Judges. But before coming to his judgment, he may consider various authorities, and having considered various authorities, he must come to his own judgment. He may accept the view of another High Court Judge or of a Bench or of an other Bench of High Court Judges, but the conclusion must be his own and must be based on hiS own judgment. Of course, he has to apply the laws of India and one of the laws of India is contained in Art, 141 of the Constitution of India which provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India Except when there is a judgment of the Supreme Court declaring the law to be applied, High Court Judges must use their own judgment even if they consider various decisions before forming their Judgment. But without forming their individual judgment, to say that they come to a certain conclusion because a certain judgment of a High Court is binding on them would be to contravene the oath taken under Article 219 of t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er the provisions of the Evidence Act. It is clearly provided in Section 165 of the Evidence Act that the judgment of a Court must be based upon facts declared by the Evidence Act to be relevant and duly proved. The definition of 'fact' in the Evidence Act is very wide. As defined in the Evidence Act. 'fact' means and includes - (i) any thing, state of things, or relation of things capable of being perceived by the senses; (2) any mental condition of which any person is conscious. Thus, 'fact' includes laws and books, whether the books be on law or on other subjects. In Chapter III relating to facts which need not be proved, reference is made to laws in force in the territories of India. The laws in force in the territories of India' are therefore facts within the meaning of the Evidence Act, and facts which need not be proved and of which the Court should take judicial notice. It is also provided .in Section 57 of the Evidence Act that in all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. In such case, books are merely to aid the Court, and books do not form the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... such country contained- in a book purporting to be a report of such rulings, is relevant. This section does not refer to judgments. We must note the expression opinion as to a law of any country'' An argument may be advanced that under Section 45 of the Evidence Act the expression used is to form an opinion upon a point of foreign law . It can, therefore, be urged that when it is intended to refer to the law of countries other than India, the expression used is foreign law and that the expression law of any country would include the law of India. 41. But in regard to tie laws of India, a Court has not to form an opinion because everybody is presumed to know the law. Moreover under Section 57 of the Evidence Act, a Court shall take judicial notice of all the laws in force in the territory of India. Moreover, it would be rather inconsistent to hold that although the judgment of a Court is irrelevant under Section 43 of the Evidence Act, a report purporting to be a report of such a judgment would be relevant, 42. It appears that the expression foreign law has been used in Section 45 and the expression law of any country has been used in Section 38 of the Ev ..... X X X X Extracts X X X X X X X X Extracts X X X X
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