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Naresh Shridhar Mirajkar Vs. His Lordship the Honourable Mr. Justice Tarkunde - Court Judgment

LegalCrystal Citation
SubjectConstitution
CourtMumbai High Court
Decided On
Case NumberSpecial Civil Application No. 1685 of 1964
Judge
Reported in(1965)67BOMLR214; 1965MhLJ414
AppellantNaresh Shridhar Mirajkar
RespondentHis Lordship the Honourable Mr. Justice Tarkunde
DispositionPetition dismissed
Excerpt:
constitution of india, articles 225, 226, 227, 224-216 -- letters patent. clause 36-judicial order passed by single judge of high court-jurisdiction of bench of same high court to interfere with such order by writ.;in respect of an order passed by a single judge of the high court in his judicial capacity no other bench of the same court has jurisdiction to issue any writ against him, in the exercise of its constitutional powers.;rex v. justices of the c.c.c.: london county council, ex parte [1925] 2 k.b. 43 skinner v. northallerton county court judge [1899] a.c. 439, at p. 440 and hastings (no 3), in re [1959] 1 ch. 368 applied.;emperor v. krishnaji vithal (1948) 50 bom. l.r. 293 distinguished.;t.c. basappa v. t. nagappa [1955] 1 s.c.r. 250 and in re babul chandra [1952] a.i.r. pat. 309.....kotval, j.1. pursuant to the order passed by a division bench on october 28, 1964, we have heard the advocate general amicus curiae on the question of competency and the jurisdiction of this court to issue a rule or writ in the instant ease. this matter was originally presented to this court as an appeal but it appear a that at the said hearing before mody and gokhale jj., the memorandum of appeal was amended, and the petitioner now seeks to invoke our constitutional powers under article 226. though this is a matter which is merely placed before us for admission, it is necessary to pass a full order and indicate our reasons because it involves an important point and counsel were heard at length.2. the plaint in pending suit no. 319 of 1960 was presented on the original-side of this court.....
Judgment:

Kotval, J.

1. Pursuant to the order passed by a Division Bench on October 28, 1964, we have heard the Advocate General amicus curiae on the question of competency and the jurisdiction of this Court to issue a rule or writ in the instant ease. This matter was originally presented to this Court as an appeal but it appear a that at the said hearing before Mody and Gokhale JJ., the memorandum of appeal was amended, and the petitioner now seeks to invoke our constitutional powers under Article 226. Though this is a matter which is merely placed before us for admission, it is necessary to pass a full order and indicate our reasons because it involves an important point and counsel were heard at length.

2. The plaint in pending suit No. 319 of 1960 was presented on the Original-Side of this Court some time in 1960. In that suit, Krishnaraj M.D. Thac-kersey has claimed damages of Rs. 3,00,000 for publication of an alleged malicious libel in the weekly journal 'Blitz' from its editor and publisher R.K. Karanjia and from the paper itself. The article under the caption 'Scandal Bigger than Mundhra' was published on September 24, 1960.

3. The hearing of evidence commenced on June 24, 1964, and evidence is still being recorded before Mr. Justice Tarkunde, the sole respondent before us. One Bhaichand Goda was a witness on behalf of the defendants. He had given evidence and was probably discharged, but it transpired that there were some statements made by him to the Income-tax authorities between the years 1954 and 1963 which were required to be put to him and so with the permission of the Court he was resummoned for recording his further evidence. He appeared before Mr. Justice Tarkunde on Friday, October 23, 1964, and it is in connection with what transpired at that hearing that the petitioner asks for an 'appropriate writ or order or direction'.

4. Since we are at the stage of admission only, we will accept the statements of the petitioner in paras. 9 and 10 of the petition as correctly representing what transpired on October 23, 1964. The petitioner says that

(Para 9:) 'On Friday, the 23rd October, 1964 when the said Bhaichand Goda came to the witness box he made a prayer to the trial Judge- respondent No. 1 to the effect that the publication in the press of his earlier evidence had caused loss in business to him, and that the learned Judge should protect him against his present evidence being reported in the press.

(Para 10:) Arguments were addressed to His Lordship and His: Lordship said that his evidence should not be published. It being pointed to him that the daily press (viz.) the Times of India and the Indian Express gave only brief accounts and that the Blitz gives a full report, His Lordship told Mr. L.M. Zaveri, counsel for defendants 1 and 2 that the petitioner who was the reporter for Blitz should be told not to publish reports of Bhaichand Goda's evidence in Blitz. The petitioner all along has been reporting the proceedings in the said suit in Blitz.

Then the petitioner alleges that after this order was passed when the hearing of the suit was resumed on Monday, October 26, 1964, counsel for the defendants in the suit pointed out to the learned Judge that a fundamental principle in the administration of justice was being infringed in so far as the proceedings must be public and open to the public and that exceptions to such, public administration of justice were rare. It has been further stated that it was urged before the learned trying Judge that 'no witness could claim protection from publicity on the ground that his evidence if published might adversely affect his business' and that the 'Blitz' would publish a report of the evidence if the learned Judge had merely made a suggestion or given advice but that if the learned Judge gave a written order forbidding such publication the 'Blitz' would naturally obey it. It is further alleged that Mr. Justice Tarkunde stated that he had already made an oral order and that no written order was necessary and he expected obedience to his oral order. It is against the said oral order that the applicant has presented, this application.

5. The petitioner was not a party to the suit. The petitioner claims to be a reporter serving on the staff of the ''Blitz'' of which the publisher and editor was defendant No. 1. Neither the plaintiff nor the defendants in the suit are parties to this petition, but the sole respondent is Mr. Justice Tarkunde. The petitioner claims that the oral orders of the trying Judge have affected 'the fundamental principle in the administration of justice that the proceedings shall be open to the public and the public should have the right to inform themselves of the manner in which justice is administered by reading fair and accurate reports of proceedings in Court'. He has also averred that 'the fundamental right of the freedom of speech and of the press' which embraces the right to publish faithful and accurate reports of proceedings in open Court has been infringed thereby.

6. When this matter came up for admission before Mody and Gokhale JJ., they felt that it was necessary to ascertain at least prima facie that the petition was competent against the sole respondent. They, therefore, invited the learned Advocate General to address them on the question whether the Division Bench could in the circumstances have jurisdiction to issue a writ against the respondent, a Judge of this Court.

7. After hearing the learned Advocate General amicus curiae and Mr. Chari on behalf of the petitioner, we are satisfied that in this case this Court can have no jurisdiction to issue a writ in respect of the order passed by Mr. Justice Tarkunde nor any writ against him. We may briefly state our reasons as follows:

8. The principal argument has been that in respect of an order passed even by a single Judge of the High Court, in his judicial capacity, no other Bench of the same Court can issue a writ having regard to the powers given under -arts. 225, 226 and 227 of the Constitution. Article 225 lays down generally the jurisdiction of the High Courts and it says that subject to the provisions of the Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred by the 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,... sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution.

Thus the powers of the Judges in relation to the administration of justice in the High Court and the law to be administered, remain the same as before the Constitution save and except that it is modified by any provision of the Constitution or by legislation by an appropriate Legislature.

9. In order to find out what were the powers prior to the Constitution we must tarn to Clause 36 of the Letters Patent of this Court. Clause 36 declares that. any function which is hereby directed to be performed by the said High Court of Judicature at Bombay, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof,....

The clause, it is not in dispute, speaks of the judicial functions of the High Court and it is clear, therefore, that where a single Judge is performing judicial functions on the Original Side of the Bombay High Court he is as much the High Court, as a Judge sitting singly on the Appellate' Side. Clause 36 draws no distinction between the Original and the Appellate Sides. It says in terms that each and every function of the High Court can validly be performed by a single Judge sitting on either side of the Court.

10. The combined effect of Article 225 read with Clause 36 of the Letters Patent is therefore, clear. After the Constitution the respective powers of the Judges in relation to the administration of justice remain the same as before the Constitution-and in all their pristine plenitude. Those powers are of course subject to and may be modified by any provision of the Constitution or by any law made by the appropriate Legislature duly empowered by the Constitution which now includes the Letters Patent. Any Judge of the Bombay High Court no less than a Division Bench or Full Bench of the High Court may, therefore, perform all the judicial functions of that Court in exercise of its Original as well as Appellate jurisdiction. The judicial decision of a single Judge, whether given in the exercise of Original or Appellate jurisdiction would be a decision of the High Court as much as any similar decision given by two or more Judges sitting together.

11. In the due performance of his judicial function, therefore, a single Judge i& no whit inferior to any other Judge or Judges. Sitting as he was in exercise-of the Original jurisdiction of this Court Mr. Justice Tarkunde was, undoubtedly, functioning judicially and as the High Court and the question that arises is whether a Division Bench or any two or more Judges of the High Court can lawfully interfere with that function.

12. Article 225 of the Constitution is expressly made 'subject to the provisions-of this Constitution' and that would let in Articles 226 and 227. Article 225 must, therefore, be read as subject to Articles 226 and 227. Mr. Chari relied on the provisions of Article 226 to spell out a power in this Court to issue a writ against the learned Single Judge. He urged that Article 226 gives every High Court the power 'throughout the territories in relation to which it exercises jurisdiction to issue to any person or authority...' including Government, directions, orders or the writs specified for the enforcement of fundamental rights or for any other purpose and that so far as Mr. Justice Tarkunde was-concerned, he would come within the ambit of the words 'any person or authority'.

13. The plenary words of Article 226 are 'Every High Court shall have power,...' and we have already shown that Mr. Justice Tarkunde sitting on the Original Side was as much the High Court as any two or more Judges thereof sitting-together as a Divisional Bench or a Full Bench. The power thus exercised is in any case that of the High Court. Now there is nothing ill Article 226 to. suggest that one and the same High Court can issue rules or writs against itself, nor it seems, should we hold so, unless we are forced to that conclusion by the clearest and the most compelling language. Such a principle would impart a dangerous want of finality to the decisions of this Court and render the law uncertain. We shall show a little later when we come to consider the-nature of the writs mentioned in Article 226, that the same conclusion will also follow from a consideration of the scope and extent of the writ of certiorari which alone is involved in the present case.

14. So far as Article 227 of the Constitution is concerned, it gives power to every High Court of superintendence over all t Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction.' The power is-one of superintendence and, in our opinion, by its very nature, is a power over subordinate Courts and Tribunals within the territories in which the High Court exercises jurisdiction. Article 227 does not indicate that a single Judge of a High Court, as we have shown functioning judicially as the High Court, can be corrected by the same High Court or by any two or more Judges of the same High Court in exercise of its power of superintendence. In fact, Sub-article (1) of Article 227 uses the words 'every High Court' in contra-distinction with 'all Courts and Tribunals throughout the territories in relation to which it exercises jurisdiction'. It can hardly be urged that in the words 'all Courts and Tribunals throughout the territories in relation to which it exorcises jurisdiction' would also be included the High Court itself. Neither Article 226 nor Article 227, therefore, leads to the conclusion that two or more Judges of one and the same High Court can either exercise superintendence over the judicial functions of a single Judge of that Court, whether sitting on the' Original or Appellate Side, or correct him in any way so long as he is exercising judicial function.

15. Next Mr. Chari sought to draw a distinction between a Judge presiding in a Court and the Court itself. He pointed out that Clause 36 of the Letters Patent speaks of a Judge whereas Article 226 of the Constitution makes no reference to a Judge but only to the High Court. No doubt, the distinction is understandable but if we have regard to other provisions of the Constitution, it does not appear that so far as the exercise of judicial functions-by a Judge or Judges is concerned, the High Court is different from the Judge or Judges of that High Court, Article 214 lays down that there shall be a High Court for each State. Article 215 says that 'every High Court shall have all the powers of such a Court including the powers to punish for contempt of itself'. Then art; 216 lays down that 'every High Court shall consist of a Chief Justice and such other Judges as the President may from time to time deem it necessary to appoint'. Therefore, every Judge is part of the constitution of the High Court. The High Court itself consists of the Chief Justice and the other Judges. Every Judge functioning, whether on the Original or the Appellate Bide of a High Court, is functioning as the High Court. There is therefore, no scope for drawing a distinction between the Judges of the High Court and the High Court, itself so far as the question of exercise of judicial functions is concerned.

16. Even looking to the terms of Clause 36 of the Letters Patent the same conclusion would follow. Clause 36 says

any function which is hereby directed to be performed by the said High Court of Judicature at Bombay, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court thereof....

The clause itself uses the word 'Judge' where a single Judge is intended to be referred to, but uses the words 'Division Court' where more than one Judge is intended, to be referred to. It does not say 'a Judge or a Bench of two or more Judges'. Thus the clause itself makes no distinction between the Court as such and a Judge or Judges composing it.

17. Then it was urged that even having regard to the provisions of Article 226 of the Constitution, there is a distinction between the Original Side and the Appellate Side of a High Court. It was urged by Mr. Chari that so far as the Original Side of the High Court is concerned, Clauses 11 and 12 of the Letters Patent indicate that its jurisdiction is of a limited nature. The function of the High Court in its Original jurisdiction extends only to the area of Greater Bombay whereas the function of the High Court in the exercise of its Appellate Jurisdiction extends to the area of the entire State. It was, therefore, urged that a single Judge sitting in the exercise of the Original Jurisdiction of this Court would be a Court inferior or subordinate to a Court exercising Appellate Jurisdiction.

18. This argument, in our opinion, fails to draw a distinction between the area over which a particular Judge or Judges of the High Court may for the wake of convenience be exercising Original or Appellate function and the jurisdiction inherent in the Court over which the Judge presides. We have already referred to Articles 214, 215 and 216. Every High Court is a Court for each State and consists of the Chief Justice and other Judges as the President, may appoint from time to time. Article 226 confers jurisdiction on the High Court throughout the territories in relation to which it exercises jurisdiction. Therefore, the power under Article 226 would be exercisable by every Judge of a High Court throughout the, territories in relation to which the High Court of which he is a Judge exercises jurisdiction, That is the fundamental jurisdiction conferred upon every Judge of a High Court and, therefore, it cannot be urged that a single Judge sitting on the Original. Side has his jurisdiction limited only to the area of Greater Bombay.

19. The distinction between the Original Side and the Appellate Side was brought into existence by Clauses 11, 12, and 13 of the Letters Patent. But if we turn to Clause 36 of the Letters Patent we find the same idea expressed though in different language. We have already quoted the clause and what is of prime importance are the use of the words 'any function' in the opening part of Clause 36 and the use of the words in the exercise of its Original or Appellate jurisdiction' in the subsequent portions of the clause. The distinction is between a function to be performed and the Original or Appellate jurisdiction of the Court. What we have referred to in the preceding paragraph as the inherent or fundamental jurisdiction of the High Court is referred to in this clause as the 'function' of the High Court in contradistinction with 'appellate or original jurisdiction'. When Mr. Justice Tarkunde sitting on the Original Side of the Bombay High Court decided this matter, he was performing1 the function of the High Court, but a function within the Original jurisdiction of the Court. He was, therefore, functioning as the High Court, as much as any other Judge of the High Court, whether in the exercise of Original or Appellate jurisdiction. Nothing, therefore, turns upon this distinction between the Original Side and the Appellate Side of this High Court.

20. Reference was then made to a decision of this Court in Emperor v. Krishnaji Vithal : (1948)50BOMLR293 . That was a case where a question of construction of Section 435 of the Code of Criminal Procedure, which gives revisional jurisdiction to the High Court in criminal cases, arose before a Division Bench of this Court. Section 435(1) of the Criminal Procedure Code gives power to the High Court and a Sessions Judge to call for and examine the record of any proceeding before

any inferior criminal court situate within the local limits of its or his jurisdiction for the purpose of satisfying itself or himself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed, and as to the regularity of any proceedings.

and the question that arose before the Division Bench was whether a single Judge sitting in the exercise of criminal jurisdiction with the aid of a Jury in the High Court of Sessions was a Court inferior to the High Court. The learned Chief Justice held that it was an 'inferior criminal Court' within the meaning of Section 435 of the Code of Criminal Procedure. It was urged by Mr. Chari on the strength of this decision that, if a Judge sitting to decide a case with the aid of a Jury in the High Court of Sessions was held to be a 'Court inferior to the High Court under Section 435 of the Criminal Procedure Code, then by analogy the learned single Judge sitting on the Original Side who disposed of this matter would also be a Court inferior to the High Court.

21. The decision in that case, however, turned on a question of interpretation of that particular statute, the Criminal Procedure Code. The question, was what was the meaning of the words 'inferior criminal Court' having regard to the hierarchy of Courts empowered by that Code to try criminal cases. We shall show presently that the expression 'inferior Court' in the Criminal Procedure Code carries a totally different meaning than the expression 'inferior Court' when used in contradiction with 'superior Court' when, we are considering a question of the jurisdiction of Courts. For the time being however we may say that it would be dangerous to apply the interpretation put, upon a certain expression in such a special statute as the Code of Criminal Procedure to the interpretation of any other statute not in part matter and it would be much more dangerous to do so where the question arises as to a, provision of the Constitution. We do not think that an interpretation which prevailed so far as the particular terms of a statute relating to criminal law ought to govern the construction of a provision of the Constitution.

22. Article 226 in the first place does not refer to superior or inferior Courts nor does it make' any distinction in the matter of subordination of Courts. Secondly, when speaking of the powers and jurisdiction of a Court the-distinction which we make between superior and inferior Courts comes to us from the long history of the English Courts. How it arose is explained by Halsburji (Simonds' edn.). in Vol. 9 at p. 348 et seq. Articles 817 to 821. It has been explained that the inferior Courts were so called because, they were and are in the great majority of cases subject to the control and supervision of the Court of King's Bench or Queen's Bench Division as the superior Court. One of the distinctions between the superior Courts and the inferior Courts is thus stated in Article 820:

It is in connexion with jurisdiction that we find the chief distinction between superior and inferior courts.... Prima facie, no matter is deemed to be beyond the jurisdiction of a superior court unless it is expressly shown to be so, while nothing is within the jurisdiction of an inferior court unless it is expressly shown on the face of the proceedings that the particular matter is within the cognizance of the particular Court.

Another distinction is that the Courts of superior jurisdiction are Courts which alone have the jurisdiction, to decide finally a question whether they have jurisdiction or not in a particular matter.

23. Bearing this distinction in mind and having regard to the constitutional provisions to which we have already referred, it is clear that a single Judge sitting on the Original Side is in no sense a Court inferior to the High Court or any two or more Judges of the High Court. The meaning of the same words in the Criminal. Procedure Code cannot thus apply even by analogy. The authority, therefore, of Krishnaji's case cannot apply here.

24. Article 226 of the Constitution in laying down the power of the High Court to issue writs, directions or orders specifically includes 'writs in the nature of habeas corpus, mandamus, prohibition, quo warrant and certiorari or any of them'. In the early years of the Constitution it was a question of acute debate as to what was the scope and extent of the power thus conferred by including by name these specific and well-known writs issued by the Supreme Court in England. In some decisions the view was taken that by the specification of the writs it was intended that the High Court must conform to all the limitations and follow the exact procedure, as in England in regard to these writs, whereas other decisions took the view that even though those writs were particularized it was only in order to illustrate the scope and extent of the power and, therefore, only the broad principles upon which these writs were being issued in England ought to be followed. This controversy has now been set at rest by several decisions of the Supreme Court. We may only refer to one such, decision in T.C. Basappa v. T. Nagappa : [1955]1SCR250 . At page 256 Mr. Justice Mukherjea (as he then was) laid down tie following principles:.In view of the express provisions in our Constitution we need not now look back to the early history or the procedural technicalities of these writs in English law, nor feel oppressed by any difference or change of opinion expressed in particular cases by English Judges. We can make an order or issue a writ in the nature of certiorari in all appropriate cases and in appropriate manner, so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.

One of the fundamental principles in regard to the issuing of a writ of certiorari is that the writ can be availed of only to remove or adjudicate on the validity of judicial acts.

We have quoted this passage in extenso in order to emphasize two points: Firstly, that it is only the broad principles which normally govern the issuance of these writs in England that ought to govern the exercise of the power conferred by Article 226 and, secondly, that a writ of certiorari is alone available against judicial acts, and then 'only to remove or adjudicate' their validity....

25. In the present ease, the Order which Mr. Justice Tarkunde passed was without doubt a judicial Order, and if at all we have the jurisdiction to interfere with it the appropriate writ would be a writ of certiorari. Now, in regard to that writ, the High Court in England has consistently refused to exercise its jurisdiction to issue it where the Order is passed by a single Judge of the High Court. The decision is to be found in Rex v. Justices of the C.C. C. r London County Council, Ex parte [1925] 2 K.B. 43. That was an. extraordinary case. By the Central Criminal Court Act, 1834, the salaries and expenses of the Central Criminal Court were ordered to be paid as to a certain proportion of them by the treasurer of the County of London. An order was made by the Central Criminal Court that any taxes, demanded by the Inland Revenue authorities-in respect of an honorarium payable to Sir Herbert Austin a clerk of that Court shall be paid by the public bodies by which the salaries of the Court's officials are payable. It was against that order that the King's Bench Division was moved to issue a writ, of certiorari. At page 53 of the Report Lord Hewart Chief Justice discussed the position of the Judges of the Central Criminal Court under the said Act and observed:.That then is the Court to which it is urged that a writ of certiorari should be-issued by this Court. In other words, it is said that the well known remedy for removing into the King's Bench Division an order made by an inferior Court is a remedy which is applicable to the Central Criminal Court. In my opinion, not only is there no authority for that proposition, but all the authority which one can find is in the opposite-direction.

After discussing the several authorities the learned Chief Justice went on testate (p. 58) :

With regard to the main question in the case it only remains to add that various inquiries, no doubt of no little historical interest, have been stirred in argument. I shall not enter into these inquiries because, with due respect, they seem to me to throw little light upon the immediate question. I think it right, however, to remark that a clear distinction is to be drawn between two matters, on the one hand the removal, by means of certiorari, of indictments or presentments in order to bring about what may be called the domestic or internal arrangement or rearrangement of business, and on the 'other hand the removal for the purpose of quashing it of an order which has been made by a superior Court. In other words, in my opinion, the statutes and decisions in regard to mere change of venue are not upon the same plane with a proposal to bring from a superior Court an order which has been made by that Court for the purpose of quashing it. In the one case the superior Court is making for good reason a useful predisposition of its business; in the other case the superior Court is invited to quash that which itself has done, and the process involves the rather ludicrous position that it calls upon judges to show cause to themselves why they should not be directed to remove, so that it may be quashed, something which they themselves have determined. In my opinion the beginning of the truth about this matter is to distinguish the things which ought to be distinguished. There is no authority for the proposition with which those who seek to support this order nisi must begin-namely, that in a case of this kind there is jurisdiction in this Court to issue a writ of certiorari.

Another decision which lays down the same principle is to be found in Skinner v. Northallerton County Court Judge [1899] A.C. 439. There the order impugned was an order passed in the exercise of bankruptcy jurisdiction by a County Court Judge. But the Bankruptcy Act of 1863, gave the County Court Judge sitting in bankruptcy the powers of the High. Court. Against a warrant issued by the County Court Judge a writ of certiorari was asked for. It was alleged that the warrant was in form wrong and liable to be quashed. The Lord Chancellor Lord Haldane affirmed the refusal of the writ holding (p. 441) :

Now, this county court judge was sitting in bankruptcy, and the confusion which is imported into it is that because, as I will assume for the moment, the judge issued a warrant which in form was wrong, but could have been put right, therefore, it could have been put right, not in the Court in which it was issued, but in the High Court. The absurdity of that is that the statute itself has made the county court the High Court for this purpose. You might just as well argue that a warrant, defective in form, issued by the Court of Queen's Bench could be set right by certiorari. Of course that is absurd. This is the High Court for this purpose. If the warrant was ever so bad, it was issued by a bankruptcy judge in respect of bankruptcy proceedings which were before him, of which, he was seized-a warrant which he had perfect jurisdiction to issue. If there was any irregularity or inaccuracy in point of form in the warrant that did issue, that could be put right by proper proceedings, but the proper proceedings would be in that Court itself, and not proceedings by certiorari in the Court of Queen's Bench.

26. The same principle applies-contrary to common belief-even to the writ of habeas corpus. Until the Judicature Acts were passed in 1873 in England an exception so to say was made to this principle in the matter of issuing of the writ of habeas corpus and an applicant could apply successively to the several Judges of the same High Court for a writ, but since the Judicature Act of 1873 the Courts of Queen's Bench Division and the Court of Chancery no longer exist as separate Courts. There is but one Supreme Court to which all Judges are appointed and they are then assigned to do the business of the Court in a particular Division. A comparatively recent decision in Hastings (No. 3), In re. [1959] 1 Ch. 368 illustrates the principle. Hastings had already applied twice for the issue of a writ of habeas corpus to the Court of the Queen's Bench Division. He applied a third time for the issue of a similar writ in his favour to the; Chancery Division. The application was negatived on the ground that there was no such writ available once the Queen's Bench Division had declined to grant the writ. Vaisey J. laid down the principle in language which is at once memorable and instructive. At page 377 of the Report he said:.The mistake the applicant or his advisers made was to assume that the Chancery Division is a separate entity, a separate court, and that either by single judges or by a Divisional Court it can deal with the matter afresh.

The applicant used an expression which he must suppose to be flattering to us who are sitting here. He said in his affidavit that he had decided to come for a 'complete hearing before a hitherto unconnected and impartial bench, and this I seek in the Chancery Court'. The number of misconceptions which are bound up in that sentence is almost beyond reckoning. To begin with, while I hope it is an impartial bench, it is certainly not an independent bench. Indeed, as Lord Parker has ruled with, I think, perfect accuracy, as soon as the Divisional Court of the Queens Bench Division has come to its conclusion there is an end of 1h.o matter, and, as I observed yesterday, it always has to be remembered that our orders are not orders of any particular Division or any particular Divisions1 Court; our orders are orders of the High Court. Hew we, judges of the High Court, could be heard to override, overrule, or otherwise interfere with a judgment which was the result of the hearing by the Divisional Court, or how we could be heard to say that the conclusion of that Court, and its order-an order of our own court, the only court which exists, the High Court of Justice-was wrong, and that something else should be done, is beyond my comprehension.

27. Mr. Chari sought to brush aside the impact of the principles laid down in. those decisions by urging that these decisions were the result of the special and peculiar historical growth of these writs in England, with which we in India are not concerned. He argued that we should confine ourselves to the express terms of Article 226 or 227 and ought not to interpret the power to issue those writs in the light of the historical back-ground that prevailed in England. In our opinion, the decisions to which we have referred have nothing to do with the historical growth of the writs. The decisions have crystallised the broad and general principles upon which those writs can be issued and it is precisely such broad principles which their Lordships of the Supreme Court have in Basappa's case directed us to follow. To quote.We can make an order or issue a writ in the nature of certiorari in all appropriate case and in appropriate manner so long as we keep to the broad and fundamental principles that regulate the exercise of jurisdiction in the matter of granting such writs in English law.

Applying these principles, therefore, this petition for a writ against Mr. Justice, Tarkunde must fail.

28. We have indicated above that, in our opinion, the Order which Mr. Justice Tarkunde passed was a purely judicial order to which if at all a writ would be attracted it would be a writ of ceriiorari, 'We would here make it clear that whatever we have said in the foregoing discussion, we have said only in relation to a judicial order. We notice that in Box v. Justices of the Central Criminal Court it could have been held that the order was an administrative order. In the notes of arguments of the Attorney General Sir Douglas Hogg at p. 47 of the Report it does appear that the point was raised but the learned Chief Justice did not rest his decision on the short point that it was an administrative order and therefore a writ of certiorari would not lie but on the ground that the Judges of the Central Criminal Court were themselves the Supreme Court of England. A fortiori that judgment would apply where the order is a judicial order as in the present case. In In re Babul Chandra : AIR1952Pat309 it has been observed that even where an order is made by the High Court on its administrative side, a Bench of the High Court has no jurisdiction to issue any writ or direction or order to the High Court. As to that part of the Patna decision we say nothing. We, are not here concerned with an administrative order.

29. It was finally urged by Mr. Chari 'ad misericordiam' that if the view which we have taken is to prevail, then the unfortunate petitioner will be left without a remedy and that were he to go to a higher Court it would not be an equally convenient or cheap remedy and that that would work great hardship upon him. In the first place, in determining a question of jurisdiction such as has arisen in this application, hardship or otherwise of a case can hardly be material. But we do not think that the petitioner is entirely without a remedy and even as convenient and cheap a remedy as is available under Article 226. We think he can still apply to the learned Judge who decided the matter for a review of his own order, if he so chooses. He has also a remedy by way of an application for special leave to the Supreme Court under Article 136 of the Constitution.

30. We are clearly of the opinion that there is no jurisdiction in this Court to issue any writ against the respondent in respect of the Order impugned in this petition. The petition is summarily dismissed. We record our appreciation of the valuable assistance we have received from the learned Advocate General appearing as 'amicus curiae'.


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