Sohan Lal v. State Of W.b. & Others

Desai, CJ.

1. The appeal is taken up for hearing by treating it as included in the days cause list.

2. The appeal arises out of an order passed by the trial Court on April 6, 1989 in C.R. No. 713(W) of 1988. The appeal raises the question as to the power, authority and jurisdiction of the trial Court (Mr. Justice Bhagabati Prasad Banerjee) to pass the said order.

3. The appellant (Sohanlal Baid) is the original Writ Petitioner. The eighth respondent herein initiated a proceeding against the appellant and a few others including Chhaganlal Baid and Kundanmall Baid, under Section 156(3) of the Code of Criminal Procedure, in the Court of the Additional Chief Judicial Magistrate at Sealdah, 24-Parganas (South), seeking investigation in respect of an alleged offence punishable under Section 380 of the Indian Penal Code. The said Court directed the fifth respondent herein to inquire into the complaint and to submit a report. The case was thereupon registered as Chitpur Police Station Case No. 94 dated April 23, 1986. The said proceeding gave rise to three separate Writ Petitions with identical prayers to the effect, inter alia, that the investigation and the consequential proceeding pending in the Court below be recalled, rescinded, cancelled or revoked and that further proceedings be stayed. These Writ Petitions were filed individually by the appellant and Chhaganlal Baid and Kundanmall Baid. In the Writ Petition (C.R. 12852(W) of 1987) filed by Chhaganlal Baid an interim order of injunction was passed on April 28, 1988 to the effect that the police authorities would be at liberty to proceed with the investigation but would not file the final report without the leave of the Court. However, in the other two Writ Petitions filed by the appellant and Kundanlall Baid (C.R. No. 713(W) of 1988 and C. R. No. 10656(W) of 1987 respectively), interim relief was granted staying further investigation in the case. To be precise, in C.R. No. 713(W) of 1988 filed by the appellant, while entertaining the Writ Petition on December 24, 1987, ad interim order operative till two weeks after the Christmas Holidays was passed restraining the respondents from proceeding with the investigation on the basis of Chitpur Police Station Case No. 94. When ultimately Rule was issued on February 3, 1988, interim relief was granted in the following terms:

"Interim order already passed will continue till the disposal of the Rule with liberty to the respondents to apply for vacating and/or varying the interim order upon notice to the petitioner."

4. An application dated March 3, 1989 was filed in the Registry by the eighth respondent herein (original complainant) praying that the order aforementioned passed on February 3, 1988 in the Writ Petition instituted by the appellant be recalled and/or set aside and/or any further order or orders as may be deemed fit and proper be passed. It was averred in the application that there was a conflict between the interim order aforesaid and the interim relief granted in Chhaganlal Baids case inasmuch as in the latter case investigation was permitted to go on but only the filing of the final report without the leave of the Court was injuncted, whereas investigation was totally barred in the present case. It was submitted that total prohibition against investigation was causing great hardship and prejudice and that, therefore, the order granting interim relief was required to be recalled and/or set aside.

5-9. The said application was listed and reached hearing before Mr. Justice Bhagbati Prasad Banerjee on April 6, 1989. The material part of the order passed by the learned Judge upon the said application reads as follows

"In my view the case of the three different writ petitioners was against Chitpur P.S. Case No. 94 dated 23rd April, 1986 and the grounds of challenge were the same and that contradictory orders were passed because of the fact that the three writ petitioners were moved separately on different dates and it was not pointed out before this court that the other writ petition against the said P.S.case was pending. If the existence of the other writ applications and the interim orders had been pointed out to this Court, in that event it was the duty of the Court to see that no conflicting orders are passed in these matters.

There were three cases by three different writ application, and the different interim orders, relating to the same police station case, have been passed. Therefore, the interim orders should be recalled and should be made uniform so that there is no conflict in the interim orders. When this Court passed an interim order in C.R. 12852(W) of 1987 whereby the police authorities were given liberty to proceed with the criminal case, but they were restrained from filing any final report without leave of this Court the same interim order should be deemed to have been passed by this Court in this writ application as also in the C.R. 10656(W) of 198. I make it clear that the police authorities would be at liberty to proceed with Chitpur P.S.Case No. 94 dated 23rd April, 1986 in accordance with law subject to the condition that in case any charge-sheet has to be submitted the same should not be submitted without obtaining leave of this Court.

This order, I am passing considering the fact this court has passed inconsistent interim orders in the same matters overlooking the order passed in the other case and that unless interim order is modified, the interim order passed in other cases should not be given effect to. As because this court has passed these conflicting orders, it is the duty of this Court to recall those orders and pass uniform orders.

As this Bench is not a regular Bench and cannot take up the main matters, that is why I am passing this order giving liberty to the respondents to apply for vacating or varying of the interim order passed by this Court before the appropriate Bench. I make it clear that this order is passed without prejudice to the rights and contentions of the parties.

The application dated 3-3-1989 is disposed of as above. There will be no order as to costs."

10. Hence the present appeals.

It was strenuously urged on behalf of the appellant that Mr. Justice Bhagabati Prasad Banerjee had no jurisdiction to pass the order impugned in the appeal since on the day in question (April 6, 1989) he was assigned the work of hearing Part-Heard and Contempt matters and that since the writ petition in the present case was not a `part-heard matter, it could not have been listed before and could not have been heard by him on that day. An attempt was also made to challenge the order on the ground that two previous applications before the learned Judge were not entertained on the ground of lack of jurisdiction.

11. The High Court Act or the Charter Act, 1861(24 and 25 Vict., C.104), hereinafter called the Charter Act, which received the Royal assent on August 6, 1861, the parent legislation which authorised the establishment of High Courts of Judicature in India. Section 1 of the said Act providing, inter alia, that it shall be lawful for Her Majesty, by Letters Patent, to erect and establish a High Court of Judicature at Fort William in Bengal for the Bengal Division of the Presidency of Fort William and, by like Letters Patent, to erect and establish like High Court at Madras and Bombay for those Presidencies respectively, and that the High Courts to be established under such Letters Patent shall be deemed to be established from and after the publication of such Letters Patent in the same Presidency, or such other time as in such Letters Patent may be appointed in this behalf. Section 13 of the Charter Act provided that subject to any laws or regulations which may be made by the Governor-General in Council, the High Courts established in any Presidency under the said Act may, by, their own rules, provide for the exercise, by one or more Judges or by Division Courts constituted by two or more Judges of the said High Court, of the original and appellate jurisdiction vested in such Court, in such manner as may appear to such Court to be convenient for the due administration of justice. Section 14 provided that the Chief Justice of each High Court shall, from time to time, determine what Judge in each case shall sit alone, and what Judges of the Court, whether with or without the Chief Justice, shall constitute the several Division Courts.

12. The Letters Patent dated May 14, 1862 for the High Court of Judicature to be established in Bengal in accordance with the provisions of the Chapter Act was transmitted to the Governor-General of India in Council by the despatch dated May 14, 1862 from Sir Charles Wood, Secretary of State. The said Letters Patent were afterwards revoked by further Letters Patent dated December 28, 1865. Clause 36 of the Letters Patent dated December 28, 1865 in its original form provided, inter alia that any function which was thereby to be performed by the High Court of Judicature at Fort William in Bengal, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof, appointed or constituted for such purpose "under the provisions of the thirteenth section of the aforesaid Act of the twenty-fourth and twenty-fifth years of our region." Reference in the extracted portion aforesaid is to Section 13 of the Charter Act. The said extracted portion was substituted by the words "in pursuance of section one hundred and eight of the Government of India Act, 1915" by the amended Letters Patent of March 11, 1919.

13. Paragraph 35 of the despatch from the Secretary of State accompanying the former Letters Patent mentioned, inter alia, that Clause 36 referred to the powers of single Judges and Division Courts appointed or constituted under the provisions of Section 13 of the Charter Act and that by Section 14 of the said Act, the power of determining from time to time what Judge in each case shall sit alone, and what Judges shall constitute Division Courts, was placed in the hands of the Chief Justice.

14. The Charter Act was repealed and re-enacted with slight modifications by the Government of India Act, 1915. Section 106 of the said Act provided, inter alia, that several High Courts are courts of record and have all such powers and authority over or in relation to the administration of justice, including power to make rules for regulating the practice of the court, as are vested in them by Letters Patent, and, subject to the provisions of any such Letters Patent all such jurisdiction, powers and authority as are vested in those courts respectively at the commencement of the said Act. Section 108 of the said Act read as follows:

"108. (1) Each High Court may by its own rules provide as it thinks fit for the exercise, by one or more judges or by division courts constituted by two or more judges of the High Court of the original and appellate jurisdiction vested in the Court.

(2) The Chief Justice of each High Court shall determine what judge in each case is to sit alone, and what judges of the court, whether with or without the Chief Justice, are to constitute the several division courts."

15. The Government of India Act, 1915, was repealed and re-enacted with modifications by the Government of India, Act, 1935. Section 223 of the said Act read as follows:

"223. Subject to the provisions of this Part of this Act, to the provisions of any order in Council made under this or any other Act, to the provision of any order made under the Indian Independence Act, 1947, and to the provisions of any Act of the appropriate Legislature enacted by virtue of powers conferred on that Legislature by this Act, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the judges thereof in relation to the administration of justice in the court, including any power to make rules of court and to regulate the sittings of the court and of members thereof sitting alone or in division courts, shall be the same as immediately before the establishment of the Dominion."

16. The Government of India Act, 1935, was repealed by the Constitution of India. Article 225 of the Constitution of India, in so far as it is relevant for the present purposes, reads as follows

"225. Jurisdiction of existing High Courts. - Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and to regulate the sittings of the Court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution:"

17. In National Sewing Thread Co. Ltd. v. James Chadwick and Bros., AIR 1953 SC 357 [LQ/SC/1953/56] , it was ruled that power that was conferred by Section 108 of the Government of India Act, 1915 could be exercised from time to time with reference to jurisdiction whether existing at the time of the coming into force of the said Act or whether conferred by subsequent legislation, and that the said power still subsists and that it has not been affected in any manner whatever either by the Government of India Act, 1935 or by the Constitution. On the other hand, it has been kept alive and reaffirmed with great vigour by those statutes. It was further observed that the power is there and continues to be there and can be exercised in the same manner as it could be exercised when it was originally conferred subject, of course, to the alternation by an appropriate legislation.

18. It is thus clear that the Chief Justice of the High Court has the constitutional power to determine what Judge in each case is to sit alone, and what Judges of the Court, whether with or without the Chief Justice, are to constitute the several Division Courts. In other words, the function of assignment of judicial business amongst the Judges of the High Court, whether sitting singly or in Division Courts, is entrusted by law to the Chief Justice and the Judge or Judges derive jurisdiction to deal with and decide the cases or class of cases assigned to them by virtue of the determination made by the Chief Justice. This power is derived not only from the provisions of Section 108 sub-section (2) of the Government of India Act, 1915, which still subsists and the power whereunder still continues to be there, as held in National Sewing Thread Co. Ltd.s case, but also inheres in the Chief Justice.

19. The following observations in State of Maharashtra v. Narayan, AIR 1982 SC 1198 [LQ/SC/1982/96] at page 1200 succinctly bring out the existence of such inherent powers in the Chief Justice

"The Chief Justice is the master of the roster. He has full power, authority and jurisdiction in the matter of allocation of business of the High Court which flows not only from the provisions contained in subsection (3) of Section 51 of the Act, but inheres in him in the very nature of things."

Reference to the statutory provisions in the above-extracted portion is to Section 51 subsection (3) of the States Reorganization Act, 1956 which, inter alia, provided that the Judges and Division Courts of the High Court for a new State may also sit at such other place or places in that State as the Chief Justice may, with the approval of the Governor, appoint.

20. In Pramatha Nath Talukdar v. Saroj Ranjan Sarkar, AIR 1962 SC 876 [LQ/SC/1961/410] , which reached the apex court from decisions rendered in two criminal revision cases by a Special Bench of three Judges of the Calcutta High Court, similar observations are found to have been made. The question in that case was whether in the absence of a provision similar to proviso (ii) to Rule 1 of Chapter II of the Rules of the High Court at Calcutta (Appellate Side) in sub-rule (1) of Rule 9 of the said Chapter, it was open to a Division Bench which initially heard the criminal revisions to refer them to the Chief Justice for the constitution of larger Bench. S.K.Das, J., who delivered a minority judgment, dealt with this question elaborately and the majority judgment agreed with the conclusion on this particular point arrived at in the minority judgment. S.K. Das, J., observed that it was clear from the Rules in Chapter II of Rules of the High Court at Calcutta (Appellate Side) that the constitution of Benches is a matter for the Chief Justice and that it was open to the Chief Justice, on a reference by the Division Bench, to constitute a larger Bench to consider the criminal revisions. The learned Judge proceeded to make the following further observations (at p. 883)

"I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to R. 9 in Chapter II corresponding to the proviso to R. 1 does not take away the inherent power of the Chief Justice to refer any matter to a Bench of three Judges * * * * * * * * * * * I further think that the Chief Justice must have the inherent power to constitute a larger Bench in special circumstances. Take, for instance, a case where one Judge of the Division Bench feels, for a sufficient and good reason, that he should not hear the case. It is obvious that in such a case the matter must be referred back to the Chief Justice for the constitution of another Bench. The Chief Justice, I think, must possess such an inherent power in the matter of constitution of Benches and in the exercise thereof he can surely constitute a larger Bench in a case of importance where the Division Bench hearing it considers that a question of the correctness or otherwise of earlier Division Bench decisions of the same court will fall for consideration in the case."

21. Although the observations with regard to the inherent power of the Chief Justice were made in these two cases in varying context, those observations have general applicability and aptly bring out the true legal position with regard to the inherent power of the Chief Justice in the matter of constitution of Benches and allocation of judicial business of the High Court amongst Judges sitting singly or in several Division Courts.

22. Apart from the fact that such power vests in the Chief Justice under the fundamental laws aforementioned and also inheres in him, the Rules of the High Court at Calcutta, Appellate side, recognise and confer such powers on the Chief Justice (see Chapter II, Rule 1, Rule 5(c), Rule 13, Rule 14A(2) and (3), Rule 16(b), Rule 19 and Chapter III, Rule (1), as held in Talukdars case (AIR 1962 SC 876 [LQ/SC/1961/410] ).

23. The foregoing review of the constitutional and statutory provisions and the case law on the subject leaves no room for doubt or debate that once the Chief Justice has determined what Judges of the Court are to sit alone or to constitute the several Division; Courts and has allocated the judicial business of the Court amongst them, the power and jurisdiction to take cognizance of the respective classes or categories of cases presented in a formal way for their decision, according to such determination, is acquired. To put it negatively, the power and jurisdiction to take cognizance of and to hear specified categories or classes of cases and to adjudicate and exercise any judicial power in respect of them is derived only from the determination made by the Chief Justice in exercise of his constitutional, statutory and inherent powers and from no other source and no cases which is not covered by such determination can be entertained, dealt with or decided by the Judges sitting singly or in Division Courts till such determination remains operative. Till any determination made by the Chief Justice lasts, no Judge who sits singly can sit in a Division Bench nor can a Division Bench be split up and one or both of the Judges constituting such Bench sit singly or constitute a Division Bench with another Judge and take up any other kind of judicial business. Even cases which are required to be heard only by a particular single Judge or Division Bench such a part-heard matters, review cases etc., cannot be heard, unless the Judge concerned is sitting singly or the same Division Bench has assembled and has been taking up judicial business under the extant determination. Such reconstitution of Benches can take place only if the Chief Justice specially determines accordingly. The following observations of Basudeva Mukherjee, J. in the Division Bench case of State v. Devi Dayal, AIR 1959 Allahabad, 421 at 423 being pertinent on this point are quoted below:

"It is clear to me, on a careful consideration of the constitutional position, that it is only the Chief Justice who has the right and the power to decide which Judge is to sit alone and what cases such Judge can decide, further, it is again for the Chief Justice to determine which Judges shall constitute Division Bench and what work those Benches shall do. Under the rules of this Court, the rule that I have quoted above, it is for the Chief Justice to allot work to Judges and Judges can do only such work as is allotted to them.

It is not, in my view, open to a Judge to make an order, which could be called an appropriate order, unless and until the cases in which he makes the order has been placed before him for orders either by the Chief Justice or in accordance with his directions. Any order which a Bench or a single Judge may choose to make in a case that is not placed before them or him by the Chief Justice or in accordance with his directions is an order which, in my opinion, if made, is without jurisdiction."

24. It is pertinent to remember that the jurisdiction of the Court may be qualified or restricted by a variety of circumstances. Thus, the jurisdiction may have to be considered with reference to value, place, nature of the subject matter and age of the case. The power of the Court may be exercised within the defined territorial limits. It may be qualified or confined to subject matter of prescribed value. The Court may have competence to deal only with the cases of a specified character, for instance, testamentary or matrimonial appeals, revisions or writs, or specified subjects, such a land or service, and so on and so forth. The jurisdiction may be further restricted with reference to the age of cases if the authority concerned directs the hearing of cases to take place before the Court according, to the date of filing. This classification as to territorial jurisdiction, pecuniary jurisdiction and jurisdiction over the subject matter is obviously of a fundamental character. The cardinal position cannot be overlooked that before jurisdiction over the subject matter is exercised, the case must be legally brought before the concerned Court for the hearing and determination and that a judgment pronounced by Court without investment of jurisdiction is void.

25. Against the aforesaid background, let the point in issue be examined in light of the facts of the case.

26. By the Notification issued on March 20, 1989, it was determined by the Chief Justice that on and from Monday, March 27, 1989 until further orders, Mr. Justice Bhagabati Prasad Banerjee would sit singly and take Part-heard and Contempt matters. This determination was operative and effective on April 6, 1989. This is apparent even from the Cause List for the day. On that day, therefore, the learned Judge could have heard only Part-heard matters and contempt matters arising out of his own orders and none other.

27. We have looked at the original record of the writ petition out of which the present appeal arises and do not find any direction in the order sheet that the case was to be treated as Part-heard. It is, therefore, difficult to appreciate how the case could have been listed before the learned Judge and how the impugned order modifying the interim relief previously granted could have been passed by him on that day. Besides, the terms in which the interim relief was granted at the stage of the issue of Rule in the present case have been quoted earlier. Liberty was thereunder reserved to the respondents in the writ petition to apply for vacating and; or varying the interim order upon notice to the writ petition. The proper remedy for the party aggrieved by such interim order was to move the appropriate Bench which was dealing with the said category of cases under the extant determination with an application to modify or vacate the said order. There was no question of recalling the said order and so-called application for recalling the order was thoroughly misconceived. The learned Judge, therefore, could not have entertained the application as such and determined the subject, matter in controversy between the parties and passed any judicial order granting relief in any form in the said proceeding.

28. For the foregoing reasons, the order under appeal being without jurisdiction is and declared to be void and as having no effect in the eye of law.

29. It is clarified that we have not gone into the merits of the dispute and that this order will not prevent the eighth respondent or any of the other respondents from seeking appropriate relief from the appropriate Bench in accordance with law.

30. The appeal succeeds and is allowed accordingly.

31. No separate order is required to be passed on the application which too stands disposed of in light of the foregoing order. Interim relief, if any, is vacated.

32. Shyamal Kumar Sen, J.

I agree.