S.S. Sodhi, C.J.
1. Binding judicial precedent the concept and ambit of it, as also the parameters of the per incuriam rule, are what arise for consideration in the context of the not infrequent instances of law laid down by a larger Bench being treated as, or said to be, incorrect by a single Judge, or a single Judge or a Division Bench doubting the correctness of what has been laid down not only by a co-ordinate but also a larger Bench or brushing it aside by applying to it the label of 'per incuriam'.
2. Illustrative of the imperative necessity of examining and clarifying the issues raised are two judgments of M. Katju, J., one relating to cancellation of an arms licence and the other to the grant of it.
3. M. Katju, J. in Civil Misc. Petition 8374 of 1992 (Rana Pratap Singh v. State of U.P.) decided on March 4, 1992 when faced with the judgment of a five judge Full Bench in Kailash Nath v. State, (1985 AWC 493) and the earlier Full Bench decision in C.P. Sahu v. State of U.P. : AIR1986All142 said, 'With great respect to these Full Bench decisions, I am of the opinion that both of them are wrong.'
4. The matter before the Full Bench in Kailash Nath, as also in C.P. Sahu's case, 1984 AWC 145 : 1986 Cri LJ 817 (supra), concerned cancellation of an arms licence. It was held in the former that an arms licence may be cancelled without prior opportunity of hearing to the licensee but such licensee must be heard even subsequently. Post-decisional hearing was thus held to be not only valid but also necessary.
5. Regarding such post-decisional hearing, in the view of Katju, J., it could be resorted to in very exceptional cases, where a pre-decisional hearing would frustrate the very object of the proceedings. China the Full Bench of this Court in Balram Singh v. State, (1988 AWC 1481 : 1989 All LJ 23 : 1990 Cri LJ 409), the learned Judge went on to say 'if there is requirement of immediate action, the authorities can suspend the arms licence pending inquiry. Hence the object of the proceedings will not be frustrated if a hearing prior to cancellation is given'. In Balram Singh's case 1988 AWC 1481 : 1990 Cri LJ 409 (supra) it had been held that a gun licence could be suspended during proceedings for its cancellation. It. was on this rationale that the learned Judge concluded with the observations 'I am of the respectful opinion that the two Full Bench decisions in C.P. Sahu's case : AIR1985All291 need a reconsideration by a larger Full-Bench.
6. The issue in contention before the learned single Judge, namely, grant of an opportunity of hearing to the licensee before cancellation of his licence stood fully and squarely covered by the judgment of the Full Bench in Kailash Nath's case 1985 AWC 493 : AIR 1985 All 291 (supra) where, as pointed out earlier, it was held that there could be post-decisional hearing for suspension or revocation of the licence. This being so, the rationale thereof was clearly binding upon the learned single Judge and yet, its correctness is being sought to be put under cloud. This is where the principle of binding judicial precedent comes in. To seek to explain it now, in this day and age, would not only be merely to slate the obvious, but rather elementary and common place, at any rate, for the legal profession. The fact, however, that such a situation has come about, of course, impels us to spell out its true import.
7. It was over a quarter of a century ago that the Supreme Court in T.P. Thakkar v. R. M. Patel : 1SCR455 had occasion to say, 'Precedents which enunciate rules of law form the foundation of administration of justice under our system. It has been held time and again that a single Judge of a High Court is ordinarily bound to accept as correct judgments of Courts of co-ordinate jurisdiction and of Division Benches and of the Full Benches of his Court and of this Court. The reason for the rule which makes a precedent binding lies in the desire to secure uniformity and certainty in the law.'
8. Next, in Assistant Collector of Central Excise v. Dunlop India Ltd. : 1985ECR4(SC) , the Court observed, '... as was said in Cassel and Company Limited v. Broome, 1972 App Cas 1027 : 1972-1 All ER 801 we hope it will never be necessary for us to say so again that 'in the hierarchical system of Courts' which exists in our country, 'it is necessary for each lower tier', including the High Court, 'to accept loyally the decisions of the higher tiers.' 'It is inevitable in a hierarchical system of Courts that there are decisions of the Supreme Appellate Tribunal which do not attract the unanimous approval of all members of the judiciary.... But the judicial system only works if some-one is allowed to have the last word and that last word, once spoken, is loyally accepted.'
9. Further, there is the observation or R. S. Pathak, C. J. in Union of India v. Prithpal Singh, : 178ITR548(SC) , 'The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs. And, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a Court.'
10. Reference may also be made to Mamleshwar Prasad v. Kanahaiya Lal, : 3SCR834 , where it was said, 'Certainty of the law, consistency of rulings and comity of courts - all flowering from the same principle - converge to the conclusion that a decision once rendered must later bind like cases. We do not intend to detract from the rule that, in exceptional instances, where by obvious inadvertence or oversight a judgment fails to notice a plain statutory provision or obligatory authority running counter to the reasoning and result reached, it may not have the sway of binding precedents. It should be a glaring case, an obtrusive omission.'
11. Finally, in Sundarjas Kanyalal Bhathija v. The Collector, Thane, : 183ITR130(SC) it was held' One must remember that pursuit of the law, however glamorous it is, has its own limitation on the Bench. In a multi-judge court, the Judges are bound by Precedents and procedure. They could use their discretion only when there is no declared principle to be found, no rule and no authority.'
12. Perhaps, the best enunciation of the doctrine of precedent and its binding nature is contained in the judgment of the Full Bench of the High Court of Punjab and Haryana in Pritam Kaur v. Surjit Singh . A somewhat similar situation had arisen there, namely, of a learned Single Judge seeking reference to a larger Bench to reconsider the decision of a Full Bench which clearly covered the case before him. S. S. Sandhawalia, C. J., speaking for the Bench, adverted, in the first instance, to the rule of the binding nature of precedents, as set out in the celebrated commentaries of Blackstone:
'It is an established rule to abide by former precedents when the same points come again into litigation : as well to keep the scale of justice even and steady and not likely to waiver with every Judge's new opinion as also because the law in that case being solemnly declared and determined, what before was uncertain has now become a permanent rule, which it is not in the breast of any subsequent Judge to alter or vary from according to his private sentiments.'
13. The learned Chief Justice then went on to point out that 'the true approach to a binding precedent is illustrated by the celebrated words of Buckley, L.J. in Produce Brokers Co. Ltd. v. Olympic Oil & Cake Co. Ltd. (1916) App Cas 314, as under :-
'I am unable to adduce any reason to show that the decision which I am about to pronounce is right. On the contrary, if i were free to follow my own opinion, my own powers of reasoning such as they are, I should say that it is wrong. But I am bound by authority -- which, of course, it is my duty to follow and following authority, I feel bound to pronounce the judgment which I am about to deliver.'
14. Reference was next made to Velazques Ltd. v. Inland Revenue Commissioner (1914) 3 KB 458 where Lord Cozens-Hardy M.R. observed'. But there is one rule by which of course, we are bound to abide that when there has been a decision of this Court upon a question of principle it is not right for this Court, whatever its own views may be, to depart from that decision. There would otherwise be no finality in the law. If it is contended that the decision is wrong, then the proper course is to go to the ultimate tribunal, the House of Lords, who have power to settle the law and hold that the decision which is binding upon us is not good law'.
15. The Full Bench in Pritam Kaur's case (supra), on its part, held, 'It is equally necessary to highlight that the binding nature of precedents generally and of Full Benches in particular, is the king-pin of our judicial system. It is the bond that binds together what otherwise might well become a thicket of individualistic opinions resulting in a virtual judicial anarchy. This is a self imposed discipline which rightly is the envy of other Schools of Law.' The Bench further added 'The very use of the word 'binding' would indicate that it would hold the field despite the fact that the Bench obliged to follow the same may not itself be in agreement at all with the view. It is a necessary discipline of the law that the judgments of the superior Courts and of larger Benches have to be followed unhesitatingly whatever doubts one may individually entertain about their correctness. The rationale for this is plain because to seek a universal intellectual unanimity is an ideal too Utopian to achieve. Consequently, the logic and the rationale upon which the ratio of a larger Bench is rested, are not matters open for reconsideration. Negatively put, therefore, the challenge to the. rationale and reasoning of a larger Bench is not a valid ground for unsettling it and seeking a re-opening and re-examination of the same thus putting the question in a flux afresh.'
16. The reference was answered in these terms, 'it would follow as a settled principle that the law specifically laid down by the Full Bench is binding upon the High Court within which it is rendered and any and every veiled doubt with regard thereto does not justify the reconsideration thereof by a larger Bench and thus put the law in a ferment afresh. The ratios of the Full Benches are and should be rested on surer foundations and are not to be blown away by every side wind. It is only within the narrowest field that a judgment of a larger Bench can be questioned for reconsideration. One of the obvious reasons is, where it is unequivocally manifest that its ratio has been impliedly overruled or whittled down by a subsequent judgment of the superior Court or a larger Bench of the same Court. Secondly, where it can be held with certainty that a co-equal Bench has laid down the law directly contrary to the same, and, thirdly, where it can be conclusively said that the judgment of the larger Bench was rendered per incuriam by altogether failing to take notice of a clear-cut statutory provision or an earlier binding precedent. It is normally within these constricted parameters that a similar Bench may suggest a reconsideration of the earlier view and not otherwise. However, it is best in these matters to be neither dogmatic nor exhaustive yet the aforesaid categories are admittedly the well accepted ones in which an otherwise binding precedent may be suggested for reconsideration'.
17. On this aspect another relevant judicial pronouncement comes in Ambika Prasad v. State of U. P. : 3SCR1159 . There, in the context of the U.P. Imposition of Ceilings on Land Holdings Act, 1961, while dealing with the question as to when reconsideration of a judicial precedent is permissible, Krishna Iyer, J. so aptly put it 'Every new discovery or argumentative novelty cannot undo or compel reconsideration of a binding precedent'.
18. Further, 'It is wise to remember that fatal flaws silenced by earlier rulings cannot survive after death because a decision does not lose its authority 'merely because it was badly argued, inadequately considered and fallaciously reasoned' (Salmond Jurisprudence, page 215, 11th Edition)'.
19. Implicit, thus, in the disregard by a single Judge or a Division Bench of a binding judicial precedent of a larger Bench or seeking to doubt its correctness for reasons and in circumstances other than those spelt out in Pritam Kaur's case (supra) is what cannot but be treated as going counter to the discipline of law so essential to abide by, for any efficient system of law to function, if not it virtually smacking of judicial impropriety. In other words, it is only within the narrow compass of the rule as stated by the Full Bench in Pritam Kaur's case that reconsideration of a judgment of a larger Bench can be sought and as has been so expressively put there, such judgments are not 'to be blown away by every side wind'.
20. While on the subject of binding judicial precedents and references seeking reconsideration of a judgment by a larger Bench, our attention was drawn to the judgment of the Full Bench of this Court in Radhey Shyam v. State of U.P. (1984 ALJ 666 (FB)), where it was observed' before concluding it may be mentioned that it was contended by the learned counsel for the applicants that the learned single Judge was not competent to make this reference as the Division Bench decision of this Court in State v. Gyan Chand Cri Misc. case No. 747 of 1971 and in Misc. Case No. 3318 of 1972, D/- 17-9-94 was binding on him. This contention is without force. It was open to the learned single Judge to refer the question framed by him to a Full Bench for decision as he was not in agreement with the view taken in State v. Gyan Chand, Cri Misc. Case No, 747 of 1971 and Cri Misc Case No. 3318 of 1972 D/ 17-9-1994 (supra).' We are, with respect, unable to concur or accept as correct these observations, in so far as, they imply that a single Judge can seek, by reference, reconsideration of a binding decision of the Division Bench and much less that the question framed by him, doubting the correctness of a Division Bench, be referred for decision to a Full Bench.
21. It also deserves mention that there is provision in the Allahabad High Court Rules, 1952 for the reference of a matter to a larger Bench. The relevant rule, in this behalf being Rule 6 of Chapter V of the said Rules, which is in these terms:
'6. Reference to a larger Bench.- The Chief Justice may constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case. In the latter event the decision of such Bench on the question so formulated shall be returned to the Bench hearing the case and that Bench shall follow that decision on such question and dispose of the case after deciding the remaining questions if any, arising therein.'
In dealing with this Rule, another full Bench of this court in Prasant Gaur v. State of U.P. (1988 AWC 828) expressed the view 'We should like to add that normally practice of this Court is that when a learned single Judge does not agree with a decision of a Division Bench, he may request the Chief Justice to constitute larger Bench and the Chief Justice normally constitutes a Division Bench to consider the matter. It is also not the function of a learned Single Judge to direct:' Office is directed to place the papers before the Hon'ble the Acting Chief Justice for constitution of a Bench of not less than 5 Judges for answering the reference'. He could have made a request to the Chief Justice to constitute a larger Bench and may possibly have expressed his opinion that the case should be decided by a Bench of not less than 5 Judges, but he certainly could not word the referring order in the language that he has done. We have treated those words as more recommendations to the Chief Justice,'
22. It will be seen that the observations quoted cannot be read as law laid down but merely as what the Bench perceived to be the normal practice of the Court. This being so, it cannot be treated as a precedent for any proposition to the effect that a binding decision of a Division Bench may be questioned by a single Judge by seeking reconsideration thereof by a larger Bench or going further to the extent of suggesting what number of Judges should comprise such Bench. As was so rightly stated in Pritam Kaur's case (supra) with regard to this aspect of the matter, 'By hallowed precedent it is unnecessary to suggest the number of Judges who may have to be requested to consider or reconsider a significant point of law in a Full Bench. That is a matter to be viewed and decided individually on the peculiarities of each case and therefore, to pinpoint the number or the order of the Judges who may be called upon to consider the matter must therefore, be left entirely open.'
23. Seen in the light of what has been discussed it must inevitably follow that the ratio of the two full Bench decisions, namely, C. P. Sahu, 1984 AWC 145 and Kailash Nath's cases, 1985 AWC 493 (supra), was clearly binding upon the learned single Judge and it was thus incumbent upon him to follow it. No occastion for its reconsideration arose. Having arrived at this conclusion, we have no option but to send the matter back to the learned single Judge for decision on merits in accordance with law.
24. Before parting with this matter, we have perforce to revert back to the judgment of the Full Bench in Balram Singh's case (1988 AWC 1481 : 1990 Cri LJ 409 : 1989 All LJ 23) (supra) which finds mention in the judgment of Katju, J. in Rana Pratap Singh's case. We are, with respect, constrained to hold that the extent to which it runs counter to the decisions of the Full Bench in C. P. Sahu, 1984 AWC 145 and Kailash Nath's cases 1985 AWC 493 it does not lay down correct law and we consequently override it.
25. Further, we also cannot but hold that the Bench fall in error in observing 'The ratio in C. P. Sahu's case 1984 AWC 145, that there is no power to suspend pending enquiry stands completely demolished by Kailash Nath's case 1985 AWC 493'.
26. The issue in Balram Singh's case 1988 AWC 1481 : 1990 Cri LJ 409: 1989 All CJ 23, concerned the suspension of arms licence on the ground that the licensee had criminal instincts and the licensee was consequently directed to show cause why his arms licence be not cancelled. After referring to the earlier Full Bench decisions in C. P. Sahu 1984 AWC 145 and Kailash Nath's cases 1985 AWC 493 as also to the provisions of Section 17 of the Arms Act, it was held 'we have not a minute's hesitation in holding that the effect of a combined reading of sub-section (3) and Clause (b) thereof is that whenever a proceeding under sub-section (3) is initiated for suspending or revoking 'a licence' and the licensing authority deems it necessary for security of public peace or for public safety to suspend or revoke 'the licence', the said authority can in exercise of that power suspend the licence during pendency of these proceedings, without any hindrance from other provisions in the Act.'
27. A reading of the judgment in C.P. Sahu's case 1984 AWC 145 would, however, show that the legal proposition was propounded there was quite different, namely, 'that having regard to the scheme and purpose of the provisions contained in Sections 17 and 18 of the Act and the nature of the enquiry that a licensing Authority is to make before directing revocation/suspension of an arms licence, it has no power to suspend the arms licence pending enquiry into its cancellation/suspension. 'The reasoning leading to this conclusion being 'The object of the enquiry that a licensing authority may while proceeding to consider the questions as to whether or not an arms licence should be revoked or suspended, like to make, clearly is to enable the licensing authority to come to a conclusion as to whether or not the facts stated in Clauses (a) to (e) of Section 17(3) exist and as already explained it is not obliged to before considering that a case for revocation/ suspension of licence has been made out, associate the licensee in such enquiry. In this view of the matter it can safely betaken that where a licensing authority embarks upon such an enquiry it is, till then not convinced about existence of the conditions mentioned in Clauses (a) to (e) of Section 17(3) of the Act. So long as it is not so convinced no case to make an order either revoking or suspending an arms licence as contemplated by the section will be made out.'
28. It was further observed that 'if there already is material before the licensing authority and it becomes apparent to it that possession of arms by the licensee is going to endanger public peace and safety, it can straightway and without holding any enquiry proceed to revoke/suspend the arms licence after recording reasons therefor and if the licensee is aggrieved by such orders, he will have a right to ventilate his grievance before the appellate authority. However, if there is no such material before the licensing authority and it is not apparent to it that there is an immediate danger to public peace and safety and it, on some information being laid before it, proceeds to find out whether there is any likelihood of public peace and safety being affected at some future date, it cannot be said that there is any such urgency so as to justify the revocation/cancellation of the licence even before the licensing authority gets so satisfied. In the circumstances, considering the nature and the object of the enquiry which a licensing authority is required to make for finding out if the facts justifying passing of an order for revocation/suspension of licence exist, it cannot be said that non-conferment of the power to suspend an arms licence pending enquiry has the effect of defeating the object for which such a power has been conferred upon the licensing authority.'
29. In Kailash Nath's case (1985 AWC 493 : AIR 1985 All 291) (supra), after going into the relevant legal aspects, M. N. Shukla, C. J., Speaking for the majority, observed that 'the law laid down in paragraph l6 in Chhanga Prasad Sahu's case 1984 AWC 145 : AIR 1986 All 142 (supra) extracted in the earlier part of this judgment must be supplemented by the further observations that after taking the provisional action of immediate revocation of the licence the licensing authority must issue notice to the licence holder giving him an opportunity to file objections against the preliminary order and after hearing him proceed to pass the final order which may either affirm or revoke the provisional order. In other words, it is incumbent upon the licensing authority to refrain from attaching finality to the order of cancellation until the aggrieved petitioner has been heard by such authority and his objections have been adjudicated. The licensing authority can also for the furtherance of his immediate remedial action exercise the incidental power of directing the licence holder to surrender his licence until the objections have been decided.'
30. In a separate judgment, H. N. Seth, J., the presiding Judge in C.P. Sahu's case : AIR1986All142 (supra), explained that judgment by reiterating that prior hearing for suspension or revocation of an arms licence was not a legal necessity. It was further clarified that there could be post decisional hearing before the licensing authority too.
31. It will thus be seen that there was no occasion for it to be said that the ratio in C. P. Sahu's case : AIR1986All142 stood 'demolished' by the judgment of Kailash Nath's case. : AIR1985All291 as mentioned there, it was merely supplemented and that too by nothing contrary to it, we are, therefore, unable to endorse or sustain the view expressed on this aspect in Balram Singh's case 1988 AWC 1481 : 1990 Cri LJ 409 : 1989 All LJ 23 (supra.) In other words, the law as laid down in C.P. Sahu, : AIR1986All142 and Kailash Nath's cases : AIR1985All291 , still holds the field, and in our opinion rightly too.
32. As regards suspension of an arms licence by the licensing authority during the enquiry, this, it may be clarified, may be done only in the manner as explained in the judgment in C. P. Sahu's case : AIR1986All142 (supra) and not without application of mind and recording of reasons by the licensing authority with such reasons and circumstances being in consonance with the provisions of the Arms Act.
33. Turning now to the reference pertaining to the grant of an arms licence, there is the judgment of M. Katju, J. in Ganesh Chandra Bhatt v. The District Magistrate, Almora (1993 (30) ACC 204) where the learned Judge held that the right to carry non-prohibited firearms was part of Article 21 of the Constitution of India since he said the word 'life' in Articles 21 has been held by the Supreme Court to be a life of dignity. It was, in this behalf, his view that is only an armed man who can lead a life of dignity and self respect.
34. The learned Judge went on to lay down as a legal proposition that 'Whenever an application for a licence for a non-prohibited arm is made and it is not disposed of within three months it will be deemed to have been allowed on the expiry of three months'. Not only this, but a general mandamus was also issued 'to all concerned authorities that whenever any application for licence under the Arms Act is made the same must be processed and decided within three months, and the normal rule must be grant of the licence in the case of non-prohibited firearms, and the refusal should be exception and for strong reasons to be recorded in writing after giving opportunity of hearing to the applicant, and such reasons for rejection must be communicated to the applicant within three months of the application. The licence should also be normally not restricted to the district or State except for special reasons to be recorded in writing and communicated to the applicant.'
35. Both these views, namely, that if no order is passed on an application for an arms licence within three months from the date thereof it shall be deemed to have been granted and that the right to carry a non-prohibited weapon was a right guaranteed under Article 21 of the Constitution, were later given the seal of approval by the Division Bench in Civil Misc. Writ Petition No. 29963 of 1993 (Devendra Pratap Singh v. District Magistrate), decided on October 27, 1993, of which M. Katju, J. was a member.
36. Strong reservations were expressed by Bahuguna, J. in Ajai Singh's case to the rationale of the judgments in Ganesh Chandra Bhatt, 1993 (30) ACC 204 and Devendra Pratap Singh's cases (supra) Civ. Misc. Writ Pet. No. 29963 of 1993, D/- 27-10-93 and he consequently sought their reconsideration by a larger Bench. The learned Judge observed in this behalf. 'There is nothing in the phraseology of Sections 13 and 14 of the Arms Act on which the inference of deemed grant of licence can be sustained in law. Whenever the Legislature had the intention of incorporating such a clause, there has been a specific deeming clause in the statute itself. The ratio of the decision is contrary to the construction of Sections 13 and 14 of the Act as no such inference can be construed from the phraseology of the aforesaid Sections and also the intention of the Legislature. It is open to the Courts to go into the question of delay in the matter of grant of an arm licence and in suitable cases where there is an inordinate delay the Court may reach to the conclusion that a licence should be granted, but the law cannot be laid down to the effect that on a mere delay of three months in deciding an application for the grant of licence, licence should be deemed to have been granted. There can be a reasonable and just explanation on behalf of the District Magistrate for the delay in the disposal of the application for the grant of an arm licence made by a citizen and as such the ratio of the above cases that the licence should be deemed to have been granted is not only contrary to the provisions of Sections 13 and 14 of the Arms Act, but would also endanger public safety and national security'.
37. A reading of the relevant statutory provisions of the Arms Act would show that no time limit has been prescribed therein for the consideration of an application for the grant of an arms licence, nor is there any provision to the effect that if the application is not finally decided within a particular time frame, the licensing authority shall be bound to grant the licence, or that the licence shall be deemed to have been granted. We, therefore, cannot but concur with the view of Vijay Bahuguna, J. that had the intention of the Legislature been such, specific provisions would undoubtedly have been made for it in the Act. On the face of it, therefore, the provisions of the Arms Act cannot be so construed as to provide for a deeming provisions for the grant of a licence merely on the expiry of a particular period of time. There can, of course, be no manner of doubt that where undue delay takes place in the licensing authority considering and deciding an application for an arms the Court is competent and empowered to direct that the consideration may be completed within the time to be stipulated by it. In dealing with this matter, it is not to be forgotten that there can be many reasons and circumstance to account for an application for an arms licence not having been decided within a particular period. No hard and fast rule can, therefore, be laid down. What be an appropriate order to be passed, with regard to an application for the grant of an arms licence, would clearly depend upon the facts and circumstances of each particular case.
38. Equally unsustainable is the view that the right to carry non-prohibited fired arms comes within the purview of Article 21 of the Constitution, nor indeed one can we subscribe to the theory as expounded by M. Katju, J. In Ganesh Chandra Bhatt's case 1993 (30) ACC 204, that it is only an armed man who can lead a life of dignity and self respect. As rightly held in Kailash Nath's case : AIR1985All291 (supra), obtaining of a licence for acquisition and possession of fire arms under the Arms Act is no more than a privilege. M. N. Shukla, C. J. in this behalf, further observed 'No doubt, a citizen may apply for grant of a licence of fire arms mostly with the object of protecting his person or property but that is mainly the function of the State. Even remotely this cannot be comprehended within the ambit of Article 21 of the Constitution which postulates the fundamental right of protection of life and personal liberty. It deals with deprivation of life and as held in Gopalan v. State of Madras, 1950 SCR 88 Article 21 is attracted only in cases of deprivation in the sense of total loss and that accordingly has no application to the case of a mere restriction upon the right to move freely or to the grant of licence for possession and acquisition of fire arms which stands on an entirely different footing from the licence to carry on a trade or occupation'. M. K. Katju, J. In Ganesh Chandra Bhatt's case (1993 (30) ACC 204, brushed aside this observation by fastening upon it the label of 'per incuriam'. On the face of it, this represents a glaring instance of a learned single Judge, as they say 'Seeking to win the game by sweeping all the chessmen of the table' by so blatantly disregarding a binding judgment of a Full Bench of five Judges, by merely saying it is per incuriam, when it was clearly not so.
39. This is what now brings us to what constitute the parameters of the per incuriam rule. As the Supreme Court in Punjab Land and Recreation Corporation Ltd. v. Presiding Officer, Labour Court, : (1990)IILLJ70SC , explained, 'The Latin expression per incuriam means through inadvertance. A decision can be said generally to be given per incuriam when this Court has acted in ignorance of a previous decision of this Court.' Further 'In England a decision is said to be given per incuriam when the Court has acted in ignorance of a previous decision of its own or of a Court of co-ordinate jurisdiction which covered the case before it, or when it has acted in ignorance of a decision of the House of Lords'.
40. A similar exposition of the per incuriam rule is to be found in State of U.P. v. Synthetics and Chemicals Ltd., : 1993(41)ECC326 , namely, that 'Incuria' literally means 'carelessness'. In particular per incuriam appears to mean per ignoratium. English Courts have developed this principle in relaxation of the rule of stare decisis. The 'quotable in law' is avoided and ignored if it is rendered, 'in ignoratium of a statute or other binding authority'. (Young v. Bristol Aeroplane Co. Ltd.), 1944 (1) KB 718 : (1944) 2 All ER 293.'
41. It is strictly within these parameters and not beyond, that the per incuriam rule can legitimately be applied. Judicial discipline and propriety must combine to curb any tendency on the part of any Judge to brush aside any binding judicial precedent, which may not appeal to him, under the purported cover of the 'per incuriam' lable.
42. It will thus be seen that branding the observation in Kailash Nath's case (supra), with regard to the right to carry firearms and it not coming under Article 21 of the Constitution, as being merely per incuriam was not founded upon any law or precedent and was, therefore, wholly unwarranted, rather it constitutes a striking instance of the manner in which the per incuriam rule never can or should be applied. It follows, therefore, that the right to carry firearms does not come within the purview of Article 21 of the Constitution. We are thus, again constrained to hold that both Ganesh Chandra Bhatt's case 1993 (30) ACC 204 as also Devendra Pratap Singh's case Civil Misc. Writ Petn. No. 29963 of 1993, D/- 7-10-1993, do not lay down correct law and are consequently hereby over-ruled.
43. All these references are disposed of accordingly and the matters are now remitted to the learned single Judge for decision on merits.