1. This Criminal Appeal No. 395 of 1961 is filed by five persons, who were original accused Nos. 1, 2, 3, 5 and 25 in Sessions Case No. 28 of 1961 tried by the Sessions Judge, Panch-Mahals. The learned Sessions Judge convicted the five appellants and hence this appeal. The appeal is before us for admission.
2. Under Section 410, Criminal Procedure Code, any person convicted on a trial by a Sessions Judge, or an Additional Sessions Judge, may appeal to the High Court. Section 419, Cri. Pro. Code provides that every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader. The cumulative effect of Sections 410 and 419, Cri. Pro. Code is that every appellant should file a separate appeal in the form of a petition. If four persons P, Q, R and S are convicted on a trial held by a Sessions Judge, Section 410, Cri. P.C. provides that every one of these persons namely P or Q or R or S may appeal to the High Court and Section 419 provides that every appeal shall be made in the form of a petition in writing presented by the appellant or his pleader. On a reasonable interpretation of these two sections, every convicted person must file a separate appeal to the High Court. Sub-section (1) of Section 421 provides as under:
'On receiving the petition and copy under Section 419 or Section 420, the appellate Court shall peruse the same, and, if it considers that there is no sufficient ground for interfering, it may dismiss the appeal summarily.'
It is also clear from this section that every convicted person must file a separate appeal, because Section 421(1) provides that the Court may dismiss the appeal summarily if it considers that there is no sufficient ground for interfering after perusing the appeal petition. Section 421 did not provide for the case of a petition showing sufficient grounds for interfering in the case of certain accused and not showing sufficient grounds for interfering in the case of another accused. Section 421 did not provide that an appeal could be dismissed summarily as regards one accused and proceeded with as against another accused person. That Section 421 does not contemplate an order of partial summary dismissal is the law declared by the Supreme Court in Chela Jadav v. State of Bombay, : 1960CriLJ1156 . It is true that their Lordships of the Supreme Court were not dealing with the case of an appeal filed by several accused persons but were dealing with the case of an appeal filed by only one person. But their Lordships declared the law in general terms. After referring to the provisions in Chapter XXXI of the Criminal Procedure Code and in particular Section 421 and Section 422 Cri. Pro. Code, their Lordships observed as follows:--
'These provisions do not contemplate a partial Summary dismissal of an appeal as was pointed out by the Privy Council in Emperor v. Dahu Raut .'
Their Lordships of the Supreme Court referred with approval to the following observations of the Privy Council:--
'The terms of the section equally exclude the possibility of partial summary dismissal, e.g., in so far as the conviction is appealed against.'
This decision, therefore, amounts to a declaration of law that the terms of Section 421 Cr. P. C. exclude the possibility of a partial summary dismissal of any type and that one of the instances of such a partial dismissal is in so far as it relates to the conviction appealed against. Their Lordships of the Supreme Court, therefore, decided three things: (1) that the provisions in Section 421, Cri. P. C. do not contemplate a partial summary dismissal of an appeal; (2) an instance of such partial Summary dismissal is one where the summary dismissal relates to the conviction of an accused person and not to his sentence; and (3) therefore an order admitting the appeal in regard to the sentence and dismissing it in regard to the conviction is invalid.
3. Section 431, Cri. Pro. Code also Indicates that Chapter XXXI of Cri P. C. contemplates only separate appeals by several accused persons. Section 431, Cr. P. C. reads as follows:--
'Every appeal under Section 411A, Sub-section (2), or Section 417 shall finally abate on the death of the accused, and every other, appeal under this Chapter (except an appeal from a sentence of fine) shall finally abate on the death of the appellant.'
The section did not make any provision for one of the accused, in an appeal dying or one of the respondents in an , appeal from acquittal dying. The section made no provision for passing an order of partial abatement of an appeal In regard to one accused person and its non-abatement in regard to the other accused persons. That See. 431 Cr. P.C. does not contemplate a partial abatement of a criminal appeal is also clear from the decision of their Lordships of the Supreme Court holding that Section 421 does not contemplate a partial summary dismissal of a criminal appeal. If Criminal Appeal No. 75 of 1961 is filed by the State against three persons P, Q and R all acquitted at a single trial held by a Sessions Judge and one of them P dies, if an order is passed that Criminal Appeal No. 75 abates only in so far as P is concerned, it is possible for Q and R to advance the argument that the appeal abates as a whole. No order of partial abatement can be passed and if any such order of partial abatement is passed, it would be invalid in view of the decision of their Lordships of the Supreme Court in AIR I960 SC 748.
4. With very great and profound respect,in my humble judgment, the effect of Section 419and other provisions in Chapter XXXI of theCode of Criminal Procedure, is to Contemplateseparate appeals by different accused personsand not one appeal by them. That is why noprovision was made in Section 421 or 431 for thecase of an appeal by several accused or fororders of partial abatement.
5. This very Criminal Appeal No. 395 of 1961, which is now before this Division Court for admission was also before this Division Court earlier and this Division Court requested the Hon'ble the Chief Justice to send this appeal for disposal to another Division Court. His Lordship the Chief Justice did send this appeal to a Division Court consisting of three Judges, but that Division Court, instead of deciding the appeal, gave answers to two questions of laws which, that Division Court though, had been referred to it by this Division Court. That Division Court opined that when several persons are convicted at a single trial by a Sessions Judge or by an Additional Sessions Judge, all persons or some of the convicted per sons can file one joint appeal in the High Court, and it is not necessary for them to file separate appeals with separate petitions. It is contended that this opinion is binding, on this Division Court. Article 219 of the Constitution requires every High Court Judge to take an path that in the name of God he will to the best of his ability, knowledge and judgment uphold. the Constitution and the laws. Judges of the High Court have therefore to take an oath to give decisions according to their own knowledge, judgment and ability. Judiciary must subject to the rule of law be independent in all spheres. They must uphold and apply the laws and one such law is found in Article 141 of the Constitution of India, which provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The enacted laws and the declaration of laws made by the Supreme Court are therefore binding on all High Court Judges. Subject to this provision, High Court Judges must give decisions according to their own knowledge and judgment. It is true that they must show the greatest and most profound respect to the judgments of their own High Court and all other High Courts and they must, if it is at all possible, try to be convinced by the reasoning of other Judges of the same High Court and the reasoning of other High Courts. But if in spite of their best [efforts, they arc not convinced are they to suppress their own individual judgment and liberty of thought and expression of judicial views which are qualified only by Article 141 of tbe Constitution?
6. Section 14 of the High Courts Act, Articles 35 and 36 of the High Court Charier and Section 215 of the Government of India Act, 1935, all refer to Single Judges and Division Courts consisting of two or more members. A Division Court may consist of two or more members and still it remains a Division Court. There is no other classification of Courts in the Charter or in the High Courts Act or in the Government of India Act. It is also clearly provided in Article 15 of the High Court Charter that the only appellate Court against the decision of a Division Court is the Privy Council and now it is the Supreme Court, which has taken place of the Privy Council. It is only the Supreme Court which can overrule the decision of a Division Court. It is only the Supreme Court which can give directions to the High Court or to any Division Court thereof.
7. The point now at issue is only a point of procedure, namely whether when several persons are convicted at a single trial, they should file separate appeals to the High Court or they can file one appeal. Either view does not result in injustice. One of the views leads to a trifle more convenience than the other. It may be a little more convenient for lawyers and litigants if one appeal is allowed to be filed by several accused persons. There were two alternatives before the mind of the Legislature, namely either to provide for separate appeals or to allow one appeal to be filed by several accused persons convicted at the same trial. If keeping both these views in mind, the Legislature preferred one view to another, Courts are bound to follow the Legislature, even if not to do so would lead to a trifle more convenience to lawyers and accused persons. The point may appear to be of trifling importance, but it is of the greatest importance that laws enacted should be upheld and followed and complied with even if it results in inconvenience. In fact, neither view results in any inconvenience, because it cannot be said that to provide for separate criminal appeals results in inconvenience. If the Legislature has preferred one of the two alternatives, then Courts have no other option but to follow the Legislature. There is no such thing as principle of continuity which requires a joint appeal by all persons convicted at the same trial. They can file separate appeals which can also be heard separately, though usually they are heard on the same day.
8. It is contended that the decision of the Full Bench is binding on all other Division Benches, meaning by 'Full Bench', Division Court consisting of more than two members. The contention is that if a Division Court does not follow the decision of another court consisting of more than two members, there would be no certainty in the law. If one Division Court takes a particular view on a questions of law and another Division Court consisting of two or more members takes a different view, that very difference creates an uncertainty as to the correct view and there would not be any certainty as to the true view on the question of law until the matter is decided by the Supreme Court. Even if the decision of a Division Court consisting of more than two members is unwillingly followed by a subsequent Division Court consisting of two members, there would remain an uncertainty by reason of the mere fact that the members of another Division Court feel in their minds that the reasoning does not appeal to them and although they do not agree they have unwillingly followed the view taken by the Division Court consisting of more than two members. So long as there is a reasonable scope for two different opinions amongst Judges of the High Court, there is uncertainty in the law unless the matter is taken before the Supreme Court for decision. A real scope for difference of opinion and a real doubt as to the correct view cannot be concluded by an unwilling agreement among Division Courts. Any intelligent lawyer can always see whether there is really an uncertainty in the law notwithstanding the outward agreement of Division Courts.
9. It is next contended that for the guidance of the subordinate Courts, it is necessary that a Division Court should treat the decision of another Division Court consisting of more than two members as binding. It is difficult to see how and why this is necessary, because even if a Division Court consisting of two members is unable to surrender its judgment and is unable to accept the reasoning of another Division Court consisting of more than two members, subordinate Courts can always prefer to follow the judgment of the Division Court whose membership is larger or the latest Division Court. For the sake of the subordinate Courts therefore it is not necessary that a Division Court of two members should against its own judgment treat the decision of an earlier Division Court consisting of more than two members as binding on it.
10. It is contended that the decision of a Full Bench -- by Full Bench is meant a Division Court consisting of more than two members -- must be held as binding even if there was a decision of an earlier Full Bench to the contrary and even if taking the two full Benches together, the majority view is against the view taken by the subsequent Full Bench view; If a Full Bench consisting of five members takes a particular view by a majority of 4 to 1 and a subsequent Full Bench takes an opposite view by a majority of 4 to 3, it really means that the second view has a support of five Judges of the High Court, whereas the first view has the support of seven Judges of the High Court. Even in such a case, it is the contention that it is the subsequent Full Bench that is binding. If the Second Full Bench had consisted of all the 12 Judges, or if it had been differently constituted, then it may have agreed with the first view. Because the second Full Bench was so constituted it may have differed from the first view of the Full Bench, although if all the 12 Judges had sat together in the Full Bench, the first view would have prevailed by a majority of 7 to 5. It is therefore clear that the contention would lead to anomalies and would result in chance playing an important part. The certainty of law would depend on chance. The element of chance in regard to decisions of the High Courts should always be at the minimum.
11. It is also contended that once there is a decision of a Division Court consisting of two members, that decision is binding on every other subsequent Division Court of two members unless that Court decides to refer the matter to what is called a Full Bench. On the question of reference, it is conceded that there is no provision in the High Court Charter or in the Constitution of India or in the Government of India Act, 1935, providing for a reference by one Division Court of a High Court to another Division Court. But it is contended that references having been made in the past can also be made in the future. It is, however, conceded that references cannot be made by a single Judge or a Division Court of the High Court to the Supreme Court, because there is no provision in favour of such references. Like tribunals, High Courts are circumscribed by the provisions constituting them, namely the High Court Charter, the High Courts Act the Government of India Act and the Constitution of India. In support of the contention that reference can be made on questions of law by a Division Bench to a Full Bench, reliance is placed on Akbari Begam v. Bahmat Hussain : AIR1933All861 . Under the High Court Charter, a reference can be made on a pure question of law only by Courts subordinate to the High Court, vide Article 28 of the Bombay High Court Charter, and in a case where there is a difference of opinion between two Judges of a Division Court, vide Section 36 of the Bombay High Court Charter, which corresponds to Section 27 of the Allahabad High Court Letters Patent. In the Allahabad case the members of a Division Court differed on a question of law arising in a case, and they requested the Hon'ble the Chief Justice to refer the question of law either to a single Judge or to a larger Division Bench for determination of the question of law and also for the disposal of the case. That was a case which clearly fell within the scope of Section 27 of the Letters Patent of the Allahabad High Court, which corresponds to Section 36 of the Charter of the Bombay High Court,
12. Reliance is also placed on 2 English cases, namely (1) Young v. Bristol Aeroplane Co. 1944-2 All ER 293, and (2) Williams v. Glasbrook Bros. Lid. 1947-2 All ER 884. But, on the points now under consideration, it would not be quite correct to rely on the English decisions which are merely observations of certain English Courts. We do not know about the constitution of the Court of Appeal in England. English Judges take a different kind of oath, that they will do right to all manner of people according to the laws and customs of England without fear or favour, affection or ill-will. Judges in India take a different oath prescribed by the Constitution. In any case, according to Young's case, (1944) 2 All ER 293, the Full Court of the Court of Appeal even with nine or more members has no greater powers than any Division Bench of the Court consisting of three members and even a Full Court of Appeal is bound to follow previous decisions of Division Benches of its own with three exceptions, namely; (1) It may choose between two conflicting decisions of its own (2) it must refuse to follow a decision of its own which, though not expressly overruled, is inconsistent with a decision of the House of Lords; and. (3) it is not bound to follow a decision of the own given per incuriam. If these cases lay down the correct law, then even a Full Bench cannot depart from a view taken by an earlier Division Bench. In England factors, which do not apply in India, play their part, in England by its judgment a Division Court of the Court of Appeal may make and create new Jaw for the first time. The law made by that Division Court becomes law and cannot be changed by another Division Court even if it consists of more members than the first Division Court. English cases holding that the judgment of a Division Court of the Court of Appeal are binding on all other Division Courts of co-ordinate jurisdiction cannot therefore be applied in India.
13. In India, whenever, a judgment is Pronounced on a question of law, the judgment has to refer to some provision in the written law and then proceed to interpret or expound that provision in the written law. As far as I am aware, there is no provision in the written law of India, on the interpretation of which it can be held that judgments of Single Judges are binding on other Single Judges of the same High Court and that judgments of Division Court are also binding on other Division Courts of the same High Court, but they are not binding on Division Courts consisting of more members than the earlier Division Court. There is therefore no point in relying on the English decisions. The question is not whether decisions of one Division Court should be binding on other Division Courts, the question is not whether it is advisable to have such a policy but the question is whether in law such decisions are binding, in other words, whether there is anything in the written law to make such decisions binding. As to the binding nature of decisions of Courts Article 141 of the Constitution is the sole provision and the Constitution deliberately did not go beyond Article 141.
14. 16 is contended that the decision of their Lordships of the Supreme Court in : 1960CriLJ1156 , was distinguished by the Division Court consisting of more than two Judges. It is contended that the case before their Lordships of the Supreme Court was one of a criminal appeal by one accused person and a case where the criminal appeal was summarily dismissed with regard to the conviction of the accused and admitted with regard to his sentence. It is contended therefore on these facts that the Supreme Court case is distinguishable from as facts in the appeal now before the Division Bench for admission, which is an appeal by five accused persons. In this connection, our attention has also been drawn to the following observations of Chagla C. J. in Mohandas Issardas v. A.N. Sattanathan, : AIR1955Bom113 :
'It cannot be suggested that the doctrine of 'obiter dicta' was so fat extended as to make the Courts bound by any and every expression of opinion either of the Privy Council or of the Supreme Court whether the question did or did not arise for the determination of the higher judicial authority.
It would be incorrect to say that every opinion of the Supreme Court would be binding upon the High Courts in India, The only opinion which would be binding would be an opinion expressed on a question that arose for the determination of the Supreme Court, and even though ultimately it might be found that the particular question was not necessary for the decision of the case, even so, if an opinion was expressed by the Supreme Court on that question, then the opinion would be binding upon us.'
Chagla C. J. then observed that the learned Judges of the Supreme Court did not apply their mind to the construction of various items of Section 167 of the Sea Customs Act and that their observation that the highest penalty which can be inflicted is Rs. 1000/- was made in passing with reference to the general scheme of the Act and was therefore not binding.
15. It is therefore contended that the decision of their Lordships of the Supreme Court in : 1960CriLJ1156 , was considered and distinguished by the Full Bench and that it is not open to this Court to differ from that interpretation put by the Full Bench on the decision of their Lordships of the Supreme Court. Article 141 of the Constitution of India reads as follows:
'If the Supreme Court makes a declaration of law, it is binding to all the Courts in India subordinate to the Supreme Court.'
It is difficult to restrict the scope of Article 141 of the Constitution of India and to hold that Article 141 of the Constitution applies only when the Supreme Court makes a declaration of law which High Court Judges feel was necessary for the determination of the question of law. In my humble opinion, it is also not open to Judges of a High Court to criticise a judgment of the Supreme Court on the ground that they did not apply their mind to the construction of various parts of the section and that therefore their observations are only casual and not binding. Of course a distinction has to be made between a declaration of law and mere observations not declaring the law on any point. But once the Supreme Court makes a declaration of law, that is binding on all the subordinate Courts. Principles of obiter, per incuriam and distinguishable facts which may perhaps apply to the decisions of Courts of co-ordinate jurisdiction cannot be applied to declarations of law made by the Supreme Court and such principles cannot restrict the scope of Article 141 of the Constitution. Judges of the Supreme Court are wise enough and careful enough not to make unqualified declarations of law which have no general application but which apply only to the facts of the case decided by them. If a declaration of law has been made by the Supreme Court, it is also not open to subordinate Courts to hold that that declaration of law is not binding, because on facts, the case decided by the Supreme Court is distinguishable from file case before the subordinate Court. All subordinate Courts to the Supreme Court are bound by all declarations of law made by the Supreme Court, even when on facts the case decided by the Supreme Court is distinguishable from the facts before the subordinate Court. If the observations of the Supreme Court amounted to a declaration of law, it is binding on all subordinate Courts as provided in Article 141 of the Constitution of India.
16. Reliance is also placed on the following observations of their Lordships of the Supreme Court in Atma Ram v. State of Punjab, : AIR1959SC519 :
'Where a Full Bench of three Judges is inclined to take a view contrary to that of another Full Bench of equal strength, the better course would be to constitute a larger Bench. Such a course becomes necessary in view of the fact that otherwise the subordinate Courts are placed under the embarassment of preferring one view to another, both equally binding upon them.'
These observations of their Lordships of the Supreme Court themselves indicate that it is open to one Full Bench to take a view contrary to that taken by an earlier Full Bench. The question whether it is not open to a Division Court to take a view contrary to the view taken by an earlier Division Court whether consisting of two or more Judges was not considered or decided by their Lordships of the Supreme-Court in this case. Cases where two Division Courts of the same High Court have given conflicting decisions are many and instances need not be given here. But, if some instances arc necessary, reference may be made to Bhuban Mohan v. Surendra Mohan, : AIR1951Cal69 , where the Bench found that the authorities of the Calcutta High Court on a particular matter were in conflict and being unable to resolve the conflict, the Bench referred the case to a Full Bench. Their Lordships of the Supreme Court observed thus in Criminal Appeal No. : 1961CriLJ856 decided by eleven. Judges of the Supreme Court:
'Whether or not this Court intended to lay down the rule of law in those wide terms has been the subject matter of decisions in the different High Courts. Those decisions are by no means uniform, and conflicting views have been expressed even in the same High Court on different occasions.'
In the Bombay High Court conflicting views have been expressed on the interpretation of Section 115 of the Civil Procedure Code. Vide Shiva Nathaji v. Joma Kashinath, ILR 7 Rom 341 (FB), Vithal Krishna V. Balkrishna Janardan, ILR 10 Bom 610 (FB); Somchand Bhikhabhai v. Chhaganlal Khupchand, ILR 55 Bom 243; Motilal Kashibhai v. Nana, ILR 18 Bom 35; Ibrasappa v. Basangowda, ILR 44 Bom 595; (AIR 1920 Bom 67(1)); Bai Rami v. Jaga Dullabh, ILR 44 Bom 619: (AIR 1920 Bom 141(1)); Secy. of State v. Narasibhai Dadabhai, ILR 48 Bom 43: (AIR 1924 Bom 65); Jamnadas v. Chandulal 39 Bom LR 138: (AIR 1937 Bom 167); and Senaji Kapurchand v. Pannaji Devichand, 33 Bom LR 1598: (AIR 1932 Bom 81). High Courts in India are not the highest Courts and conflicts of views on questions of law can always be resolved by the Supreme Court in appeal. When there is the Supreme Court to resolve conflicts, there can be no question what my learned brother calls of a never ending and continual uncertainty' resulting from an ever rolling stream of Judicial decisions on the same point.' Reliance is also placed on Emperor v. Ningapa Ramappa 43 Bom LR 864: (AIR 1941 Bom 408), and in particular to the following observations at p. 868 (of Bom LR.): (at p. 409 of AIR):
'The Court in that case consisted of live Judges, one of whom, Mr. Justice Shah dissented from that proposition. The authority of the case may be open to question since there had been a previous decision of a Full Bench of this Court of four Judges in Queen-Empress v. Mugappa, ILR 18 Bom 377 (FB) which had reached a different conclusion. Apparently, it was considered that five Judges, by a majority of four to one, could overrule a unanimous decision of four Judges, the net result being that the opinion of four Judges prevailed over the opinion of five Judges of co-ordinate jurisdiction. There seems to be very little authority on the powers and constitution of a full bench. There can be no doubt that a full bench can over-rule a division bench, and that a full bench must consist of three or more Judges; but it wouldseem anomalous to hold that a latter Full Bench can overrule an earlier Full Bench, merely because the later bench consists of more Judges than the earlier. If that were the rule, it would mean that a Bench of seven Judges, by a majority of four to three, could overrule a unanimous decision of a Bench of six Judges, though all the Judges were of co-ordinate jurisdiction.' Beaumont, C. J. referred to certain anomalous cases. He observed that it is anomalous to hold that a subsequent Full Bench can overrule an earlier Full Bench, because the later Bench consists of more Judges than the earlier. But he thought that there could be no doubt that a Full Bench can overrule a Division Bench. But with great respect, a Full Bench is nothing but a Division Court. The Charter of the High Court, the Government of India Act, 1935, and the High Courts Act all refer to Division Courts consisting of two or more Judges and no distinction is made between one Division Court and another. The number of Judges constituting a Division Court does not give additional Jurisdiction or powers to the Division Court, though is gives additional weight to the opinion expressed. When a Division Court gives a decision, it is acting on behalf of the High Court and the decision of the High Court cannot be overruled or treated as incorrect by the same High Court. One Division Court cannot sit in appeal over the decision of another Division Court, it is clearly provided in Section 15 of the High Court Charter that the right of appeal from decisions of DivisionCourts is to the Privy Council and now to the Supreme Court which has taken the place of the Privy Council. The right of appeal from the decision of a Division Court of a High Court is to the Supreme Court. A Division Bench even if it consists of 11 High Court Judges cannot overrule the decision of a Division Court of two High Court Judges. It is not necessary to stale that any other rule would lead to an anomaly. It is quite possible that one Division Bench of a High Court consisting of two Judges may take one view and another Division Court consisting of three Judges may take a different view by a majority of two to one. With great respect therefore to hold that a Division Court of more than two Judges can overrule a Division Court consisting of two Judges is not justified by the Constitution of the High Court, would also lead to anomalies, and would also result in chance and accident.
17. As observed by the Full Bench of the Nagpur High Court in Bilimoria v. Central Bank of India, Ltd., Bombay, AIR 1943 Nag 340 (FB), a Court of co-ordinate jurisdiction may refuse to follow a previous decision of another Court of co-ordinate jurisdiction if it is not convinced, but it cannot Overrule such decisions. Overruling is an act of superior jurisdiction. A refusal to follow a precedent, on the other hand, is an act of co-ordination and not an act of superior jurisdiction. Two Courts of equal authority nave no power to overrule each other's decision. Where a precedent is merely not followed, the result is not that the later authority is substituted for the earlier, but that the two stand side by side conflicting with each other, and the law remains in doubt until settled by some higher authority. (Salmond on Jurisprudence, 9 Edn. pp. 240, 241). As observed by Viscount Haldane in Kreglinger v. New Patagonia Meat and Cold Storage Co. 19.14 AC 25 at pp. 39 and 40, previous decisions of a Court of co-ordinate jurisdiction are more binding in a system of jurisdiction such as that of England than in a system where the superior authority is that of a Code. This observation is very important and sound. Where the law is written law as in India, the binding nature of the written law cannot be superseded by decisions of Courts of co-ordinate jurisdiction. The principles which are applied in countries like England where most of the law is common law cannot be applied in a country like India where the paramount authority is that of written law. At the same time, there is no doubt that previous decisions of the Courts of co-ordinate jurisdiction are entitled to the greatest and most profound respect and must as far as possible be followed it the reasoning adopted is convincing.
18. Reliance is also placed on Mahadeolal v. Administrator General of West Bengal : 3SCR578 , and in particular to the following observations at His Lordship Das Gupta J.:
'As far as we aware it is the uniform practice in all the High Courts in India that if one Division Bench differs from an earlier view on a question of law Of another Division Bench, a reference is made to a larger bench. In Calcutta High Court a rule to this effect has been in existence since 1867. It is unfortunate that the attention of the learned Judges was not drawn in the present case to that rule. But quite apart from any rule, considerations of judicial propriety and decorum ought never to be ignored by Courts m such matters.'
The practice in the Calcutta High Court appears to be that in such cases, the case itself is referred to a larger Division Bench, without merely referring the question of law for an answer to be binding on the referring Bench. We have in fact done this and requested His Lordship the Chief Justice to place this appeal, Cri. Appeal No. 395/1961, which was before us, before a larger Division Court for disposal. But as that larger Division Court did not dispose of the appeal, the appeal is again before us for disposal. That Division Court merely gave its answers to two questions of law. In the observations quoted above, their Lordships of the Supreme Court suggested A practice which has already been followed by us. Their Lordships did not say that the observations of the larger Bench are binding On all Division Courts. Their Lordships did not say that High Court Judges should disregard their oaths and that they should he bound by the observations of the larger Division Court even if in spite of their best and sincere efforts to do so they are not convinced and even if they feel that the observations of the larger Division Court are inconsistent with Section 419 of the Cri. P. Code and a declaration of law made by the Supreme Court.
19. Reliance if also placed on Jai Jaur v. Sher Singh AIR I960 SG 1118, and the following observations or His Lordship Das Gupta, J.-
'When a Full Bench decides a question in a particular way every previous decision which bad answered the same question in a different way cannot but be held to have been wrongly decided. We had recently occasion to disapprove of the action of a Division Bench in another High Court in taking it upon themselves to hold that a contrary decision of another Division Bench on a question of law was erroneous and stressed the importance of the well-recognised judicial practice that when a Division Bench differs from the decision of a previous decision of another Division Bench the matter should be referred to a larger Bench for final decision. If, as we pointed out there, considerations of judicial decorum and propriety require that Division Benches should not themselves pronounce decision of another Division Benches to be wrong, such considerations should stand even more firmly in the way of Division Benches disagreeing with a previous decision of the full Bench of the same Court.'
In making these observations their Lordships of the Supreme Court did not declare the law on any point. Of course, one Division Court cannot overrule or declare as incorrect the decision of another Division Court but it has the liberty of differing, if necessary. Their Lordships of the Supreme Court did not declare that it is the law that a Judge should surrender his judgment and act contrary to the oath taken by him even if after his best and sincere endeavours he is not convinced by the reasoning of an earlier Division Court even if it consists of more than two Judges and even if according to him the reasoning adopted by the larger Division Court is inconsistent with a section of the Code and also with the declaration of law made by the Supreme Court and even if according to him the reasoning is obitier and per incuriam. In any case, the observations of their Lordships of the Supreme Court, even if they are not declarations of law, would not apply to the present case, because the entire judgment, to use the words 'judgment' by way of convenience, of the Division Court of more than two Judges is obiter, per incuriam, and beyond jurisdiction and also inconsistent with the declaration of law made by their Lordships of the Supreme Court in : 1960CriLJ1156 . Although that is so, the observations of the Division Bench consisting of three Judges are entitled. to the greatest and most profound respect and every endeavour should be made to be convinced by the reasoning. The judgment is obiter, because no final or interlocutory order has been passed in any case by that Division Court of three Judges. It is not necessary to give authority for the proposition that only those statements in a judgment which are necessary for the decision of a particular case are regarded as the ratio decidendi of the case. The judgment of the Division Bench of three Judges is given in Criminal Appeal No. 395 of 1961, which number is given at the top of the judgment in the following words:--
'Judgment recorded by the High Court in Criminal Appeal No. 395 of 1961 in the case or Lalu Jela and Ors. v. State.'
But no final order or interlocutory order of any type has been passed, in that case. The Division Bench did not pass any order admitting the appeal or dismissing the appeal. The only orders that can be passed in a criminal appeal are those referred to in Chap. XXXI of the Criminal Procedure Code. The only order that has been passed is in the following terms:--
'The appeal will be dealt with by the Referring Bench in the light of the observations aforesaid.'
With great respect, it is not competent for one Division Court to give directions to another Division Court as to in what manner it should come to a conclusion or exercise its judgment. Powers of distribution of work are vested in the Honourable the Chief Justice. The views of all Division Benches in which class fall what are called Full Benches will always command the greatest respect but with great respect, it is not competent to a Division Court, even if it be a Full Bench, to give directions to another Division Bench,
20. With very great respect again, this Bench of ours is not the referring Bench. This Bench made no reference. It Only requested the Honourble the Chief Justice to place Criminal Appeal No. 395/-61 before another Division Bench. In fact, it made it quite clear that it had no jurisdiction to make a reference and that no Bench (whether it consists of 3 or 5 or 7 members) has jurisdiction to hear references by the High Court of questions of law. A Division Bench acts in the name of the High Court. A High Court cannot refer a matter to itself. There is no provision in the Constitution of India or the Charter of the High Court or the High Courts Act, 1861, for a reference by a Division Bench of the High Court of questions of law to another Bench of the High Court. On this point, this Bench had Observed thus:--
'In the course of arguments, three other points have also been suggested, namely (1) Whether this Bench is competent to decide the question of the validity of a rule made by the High Court, and whether if a rule framed by the High Court is ultra vires the Criminal Procedure Code, the whole High Court should decide it; (2) whether this Court has authority under the Charter to make a reference to a larger Bench and (3) the question of the powers of one larger Division Bench vis-a-vis another smaller Division Bench.
The jurisdiction and powers of the High Court rest on the Charter and the Constitution. There is no provision in the Constitution or in the Charter or in the High Courts Act, 1861, for any reference by a Division Bench of a High Court to another Division Bench. Article 28 of the Charter enables the High Court to hear cases referred to it by a Criminal Court subordinate to its appellate jurisdiction. Even in civil matters Article 15 of the Charter does not contemplate references by Division Benches of a High Court.
Section 32 of the Bombay Reorganisation Act, 1960, has also no bearing on this question. That section refers to the law in force immediately before 1-5-60 with respect to practice and procedure in the High Court. We have not been able to discover any law in force or any rules or orders in force relating to references by Division Benches of a High Court. Rules or orders made by the High Court of Bombay cannot also enlarge the jurisdiction or powers of Benches of the High Court.
Section 35 of the Bombay Reorganisation Act provides that the law in force immediately before the appointed day relating to powers of Division Courts of the High Court of Bombay shall apply in relation to the High Court of Gujarat. Section 13 of the High Courts Act, 1861, refers to the original and appellate jurisdiction vested in a High Court. Power to make references is net vested in a High Court. We have, therefore, to refer only to the Constitution, the High Courts Act, 1861, and the Charter to ascertain the powers of Division Courts of the High Court of Gujarat. Neither the Constitution nor the High Courts Act, 1861, nor the Charter gives us as a Division Court the jurisdiction to make a reference to another Division Bench, even if it consists of more than two Judges.'
21. The observations of any Judge of this High Court will always command respect the observations of a Bench of three Judges even if completely obiter, will command many times that respect.
22. A Division Bench, whatever be the number of Members constituting that Bench, is also not competent to overrule the view of another Division Bench. That power to overrule vests only in the Supreme Court. This Division Court had expressed the view, that different convicted persons should file separate criminal appeals.
23. The judgment is beyond jurisdiction, because there is no provision in the High Court Charter or in the Government of India Act or in the High Courts Act to decide pure questions of law without deciding any particular case. The appellate jurisdiction of a High Court is confined to cases which are subject to appeal to the High Court. (Vide Sections 16 and 27 of the High Courts Charter.) The instant case, Crl. Appeal No. 395 of 1961 was for decision before the larger Division Bench, but that case was not decided by the Division Bench of three Judges Nor order, final or otherwise, was passed in that case. This Division Bench requested the Honourable the Chief Justice to place the appeal itself for decision before another Division Bench. A similar procedure was followed by the Calcutta High Court in many cases referred to a larger Division Court; vide Dwarkadas and Co. v. Dajuram Goganmull : AIR1951Cal10 , Amulya Chandra v. Pashupati Nath, : AIR1951Cal48 ; Bhuban Mohan v. Surendra Mohan : AIR1951Cal69 (FB); Satya Kinkar v. Nikhil Chandra : AIR1951Cal101 and Dhirendra Nath v. Nurul Huda : AIR1951Cal133 . A Division Court can always request the Hon'ble the Chief Justice to place a criminal appeal before another Division Court. That is perfectly regular and that was the request made by this Division Court. A reference cannot be made by one Division Court to another Division Court because Division Courts are functioning as a High Court (vide Section 36 of the High Court Charter) and the High Court cannot refer a point to itself. Moreover, except in cases falling under Section 36 of the High Court Charter or Section 98 of the Civil pro. Code, which is in similar terms, that is in a case where there is a difference of opinion between two Judges of a Division Court, no reference can be made by a Division Court on pure questions of law to another Division Court of the same High Court. A reference on pure questions of law and answers to the reference would therefore be beyond jurisdiction except in cases falling within Section 36 of the High Court Charter. The jurisdiction and powers of the High Court are circumscribed by its Constitution.
24. The judgment, to use the expression by way of convenience of the Division Court consisting of three Judges is per incuriam, because the provisions of Section 419 of the Cri. Pro. Code and their effect have not been considered or discussed by the Division Court. This is a very important section, which if taken along with Section 410, Cri. Pro. Code, would indicate that the Cri. pro. Code contemplated a separate appeal by every separate appellant convicted at a trial by 3 Sessions Judge or an Additional Sessions Judge. The effect of the use of 'he word 'every' in Section 419, Cri. Pro. Code, has not been noticed in the judgment of the Division Bench consisting of three Judges.
25. The reasoning advanced by the Full Bench in giving answers will always command the greatest respect even if there be no reference and even if strictly speaking the reasoning is obiter and even if, strictly speaking the reasoning has no existence in law as no reference was made and could be made. But the matter can be treated as having been transferred to this Court by way of distribution of work, by the Honourable the Chief Justice, who is fully competent to arrange the work of the Single Judges and the Divisions of the High Court.
26. Moreover, the judgment, with very great and profound respect and in my very humble opinion, is inconsistent with the declaration of law made by their Lordships of the Supreme Court in AIR I960 SC 748. Their Lordships have clearly laid down that Section 421, Criminal procedure Code, does not contemplate an order of partial summary dismissal in a criminal appeal. In the instant case Cri. Appeal No. 395 of 1961 is for admission. This is an appeal by five accused persons and if an order is passed in Criminal Appeal No. 395 of 1961 that Criminal Appeal No. 395/61 is summarily dismissed in regard to one of the accused persons and admitted, to use this word for convenience with regard to other accused persons, it would amount to an invalid order according to she law declared by their Lordships of the Supreme Court. With reference to these observations, the learned Judges of the Division Court of three judges observed as follows:
'It was held by the Supreme Court that the provisions of Section 421 do not contemplate a partial summary dismissal of an appeal. These observations have been made in connection with an appeal by a single individual. The Supreme Court had not to consider in that case the effect Of several persons joining together in appeal. That decision does not in any way help in construing the provisions of Rule 6 framed by the Bombay High Court and considering the effect of an appeal instituted under the provisions contained in the said rule, or the validity of the rule. A single appeal has been filed by several persons under the provisions framed by the Bombay High Court since the year 1900 without any objection. The rule has worked exceedingly well and has conduced to convenience. We do not see. anything in the provisions of the Criminal Procedure Code which would in any way affect the validity of that rule. That rule is in no sense contrary or repugnant to any of the provisions contained in the Cri. Pro. Code. In our view, the rule is valid and persons convicted at a single trial can join together and file one petition of appeal.'
27. It is true that the case before their Lordships of the Supreme Court related to an appeal by a single individual and to the validity Of an order passed by the High Court dismissing the appeal as regards the conviction and admitting the appeal as regards the sentence. At the same time, the provisions of Section 421 of the Cri. Pro. Code were before their Lordships for interpretation and construction, and having construed these provisions their Lordships of the Supreme Court declared the law in the following terms:
'The provisions of Section 421 do not contemplate a partial summary dismissal of an appeal.'
They also approved the observations of the Privy Council that the terms of Section 421, Cri Pro. Code exclude the possibility of a partial summary dismissal e.g. in so far as the conviction is appealed against. The decision of their Lordships of the Supreme Court, therefore amounts to this that Section 421, Cri. Pro. Code excludes the possibility of a partial summary dismissal and that one instance of that rule is that Section 421, Criminal Procedure Code excludes the possibility of a partial summary dismissal so far as the conviction is appealed against. While deciding the case before their Lordships, their Lordships decided the case before them, which related to an order of partial summary dismissal so far as the conviction of one accused was concerned. They decided that such an order was invalid. Their Lordships decided that such an order was invalid because Section 421, Criminal Pro. Code, excludes the possibility of any type of partial summary dismissal, an instance of which was the case before their Lordships. With very very great respect, therefore, in view of Article 141 of the Constitution, the clear declaration of law made by their Lordships of the Supreme Court is binding even it the facts of the case decided by their Lordships are distinguishable from the facts in another case. It is true that this is a matter of pure procedure. Their Lordships of the Division Court consisting of three Judges also observed that the rule framed by the Bombay High Court since 1900 has not been challenged. But the real question is whether the provisions of Chapter XXXI of the Criminal Procedure Code ex-dude the possibility of a joint appeal. If they do, then the rule framed by tbe Bombay High Court would be invalid even if it be 100 years old. In fact, their Lordships of the Supreme Court in AIR 1960 SC 748, have declared a hundred year old practice of the Bombay High Court to be invalid. As regards convenience, there is nothing to choose between the either view.
28. When the question is whether a rule is repugnant to the provisions of Statute, considerations of conveniences and long-standing practice cannot over-ride the repugnancy if any. The Supreme Court has in AIR I960 SC 748, declared illegal a practice of 60 or 100 years standing. Their Lordships did no refer to considerations of convenience, because they must have regarded such considerations as irrelevant on the question of illegality.
29. In regard to joint appeals either view does not result in any injustice. Even in regard to convenience, the difference between the two views is of a trifling nature. The real and decisive question is whether Judges have to do violence to the provisions of Statute Law. Litigant will not challenge a rule if it causes no inconvenience even if the rule does violence to the language of a Code. The rule may not have been challenged before 1960, because the Supreme Court decision declaring that an appeal cannot be split up came only in 1960. As important questions and principles are involved, the State may take the matter in appeal to the Supreme Court.
30. But it cannot be forgotten that under the Constitution, Judges have to uphold the laws. The real and decisive question is therefore whether by holding as maintainable a joint appeal from convictions and a joint appeal against acquittals, Judges will have to do violence to the language of the Code at that time or subsequently.
31. P, Q and R file an appeal against their convictions at a single trial and the appeal is numbered 75 of 1960. Can the High Court pass an order that appeal No. 75 of 1960 is summarily dismissed as regards P and admitted as regards Q and R? If P dies, can the High Court order that Appeal 75 of 1960 abates as regards P and should be heard and decided as regards Q and R. To do so would be dearly to pass illegal orders in view of the decision of the Supreme Court.
32. Rule 6 of the Bombay High Court Rules is no doubt a rule of procedure. But Section 419 Cri. Procedure Code is also a rule of procedure. If Rule 6 is repugnant to Section 419, the former must give way. A Rule under which Judges may have to pass illegal orders must be given up even if no injustice results from such illegal orders and even if in fact the Rule is a trifle more convenient than another Rule under which no illegal orders need be passed.
33. If Appeal 75 of 1960 filed by P, Q and R is in effect three appeals, it has to be treated as three appeals for the purpose of Section 419, Criminal Procedure Code.
34. The Division Court consisting of three Judges observed as follows:
'If an appeal is filed under the provisions of Rule 6 by several persons and if that is treated as an appeal which can either abate as a whole against all persons or does not abate at all, as one in respect whereof a summary order of dismissal can be passed against all the persons preferring the appeal or against none or in respect whereof only one of the several kinds of orders referred to in Section 431 could be passed against all the accused, then it is possible to suggest that by rule 6 something has bean sought to be done which is not permissible under the Criminal Procedure Code to do and which is contrary go the provisions of the Criminal Procedure Code.'
But with great respect that is exactly what the Supreme Court has decided in AIR I960 SC 748. Their Lordships of the Supreme Court declared the law to be that the Sections in Chapter 31, Criminal Procedure Code dealing with summary dismissal of an appeal do not contemplate a partial summary dismissal of an appeal. On the same reasoning, Section 431, Cri. Fro. Code which deals with abatement of a criminal appeal does not contemplate a partial abatement of a criminal appeal. In other words, the Supreme Court has decided that a criminal appeal cannot he 'summarily dismissed in respect of some of the accused involved in the criminal appeal. It is therefore clear, with greatest respect, that a single appeal cannot be filed by several convicted persons. The words 'one appeal' in Rule 6 are, in my humble opinion, inconsistent with Section 419, Cri. Pro. Code
35. It is not necessary to refer to 1944-2 All ER 293, which lays down that even a decision of a Division Bench is binding on the Full Court unless there is another conflicting decision. The only appellate authority over the decision of a Division Bench is the Supreme Court No Division Bench can sit in appeal or overrule the decision of another Division Bench. If there is no decision of the Supreme Court, it is of course open to any Division Bench to take any view that the conscience of its members requires it to take, even if there is a decision of another Division Bench to the contrary and even if the latter Division Bench happens to be what is called a Full Bench. A Judge is not expected to suppress his conscience and independence of view.
36. There were two alternatives open to the Legislature, to permit joint appeals or to exclude joint appeals. If the Legislature has adopted the alternative of separate appeals excluding joint appeals, then the ground of convenience and long-standing practice cannot stand and must not stand in the way of the application of the laws. Rules framed by the High Court and practice have to be reconsidered in view of the decision of their Lordships of the Supreme Court in AIR 1960 SC 748. It is the duty of Courts to uphold and apply the laws, even if not to do so would be a trifle more convenient. It is also important that according to Article 141 of the Constitution of India, a declaration of law made by the Supreme Court should be treated as binding, even if on facts the case decided by their Lordships of the Supreme Court can he distinguished. Of course a distinction has to be made between mere observations and a declaration of law. Therefore, in my humble opinion, this is not a logomachy or a trifling controversy.
37. If the State files an appeal against the acquittal of two accused persons and one of them dies, the application of Section 431, Cri. Pro. Code may become complicated as in fact has happened in Cri. Appeal No. 302 Of 1961 where the Government Pleader's request is that an order of partial abatement of Cri. Appeal No. 302 of 1961 should be passed. The view that the Code of Criminal Procedure contemplates Only separate appeal is, as was recognised by the Division Court of three Judges, logical. It leads to no difficulties or complications. But the contrary view, in my humble opinion, with the utmost humility, is inconsistent with Section 419, Cri. Pro. Code and also with the declaration of law made by the Supreme Court in AIR 1960 SC 748, and would lead to the passing of invalid orders should it be found that there is no sufficient ground to admit the appeal of one accused, although there is sufficient ground to admit the appeal of another accused or should one of the accused die before the appeal is heard and decided. The authority of Section 419, Cri. Procedure Code is paramount. The declaration of law contained in AIR 1930 SC 748, is also binding and more binding than decisions of Full Benches of High Courts. I am not prepared to ignore Section 419, Cri. Procedure Code and to contravene Article 141 of the Constitution. I, therefore, find it impossible to persuade myself to hold that five convicted persons can file one appeal. Their advocate has refused to separate the appeals of the five convicted persons so that the appeals can be decided on the merits. I would, therefore, dismiss Criminal Appeal No. 395 of 1961 as not maintainable under Section 419, Criminal Procedure Code.