P.C. Borooah, J.
1. This Special Bench has been constituted on the requisition of N.C. Mukherjee, J., who being unable to agree with a Division Bench decision of this Court in the case of Kamal Krishna De v. State (81 Cal W. N. 976) : (1977 Cri LJ 1492) and in view of conflicting decisions of other High Courts on the point, referred the matter to the learned Chief Justice for constituting a larger Bench relying on the principle laid down in the case of Tara Dutta v. State, : AIR1975Cal450 (SB).
2. On December 16, 1975 the complainant opposite party Pravash Kumar Chowdhury lodged a petition of complaint against the petitioners in the Court of the Sub-Divisional Judicial Magistrate at Basirhat alleging commission of offences under Sections 148, 324, 307 and 395 read with Section 120B of the Indian Penal Code. The learned Magistrate after examining the complainant and one witness by an order dated December 16, 1975 issued process against the petitioners under the aforesaid sections overruling their contention that it was necessary to examine all the witnesses in accordance with the provisions of Section 202 of the Code of Criminal Procedure, 1973. Against this order the Rule has been obtained.
3. The point in issue in this Rule and which according to N.C. Mukherjee, J. requires the consideration of a larger Bench, is whether in cases instituted on a complaint and which are exclusively triable by a Court of Session, the Magistrate is required to call upon the complainant to produce all his witnesses and to examine them under the proviso to Section 202(2) of the Code before the issue of process? Incidentally different Division Benches of this Court, not only in the case reported in : AIR1975Cal450 (SB) but also in other unreported decisions, have consistently held that in such cases a Magistrate has to call upon the complainant to produce all his witnesses and to examine them.
4. Mr. Balai Chandra Ray, learned Advocate appearing on behalf of the complainant opposite party, has assailed the competency of the reference. Mr. Ray has submitted that a single Judge is bound by a decision of the Division Bench and in case of any disagreement a reference can only be made to a Bench of two Judges as laid down in the Appellate Side Rule of this High Court and the learned Chief Justice has no inherent power to bypass the Rules and to constitute a Special Bench in criminal matters on the requisition of a single Judge. Mr. Ray has further submitted that to this extent the decision of Tara Dutta v. State (supra) is not correct. Mr. Nalin Chandra Banerjee, learned Advocate appearing on behalf of the petitioners, has adopted Mr. Ray's arguments.
5. According to the learned Public Prosecutor appearing on behalf of the State, there is no provision in the Appellate Side Rules which makes it mandatory on a single Judge to follow the decision of a Division Bench, as such a single Judge can, when he differs, make a reference to the learned Chief Justice for constitution of a larger Bench and the learned Chief Justice having unlimited power under proviso (ii) of Rule 1, Part I, Chapter II of the Appellate Side Rules can constitute a larger Bench on such requisition. As regards the inherent power of the learned Chief Justice. Mr. Mitra, on the basis of the authority of the Supreme Court decision in the case of Pramatha Nath Talukdar v. Saroj Ranjan Sarkar : AIR1962SC876 , has submitted that the learned Chief Justice had the inherent power to constitute this Special Bench on the requisition of N. C. Mukherjee, J,
6. The learned Chief Justice constituted the Special Bench in Tara Dutta's case : AIR1975Cal450 after R. Bhattacharyya, J. had directed the matter to be placed before him for constitution of a suitable larger Bench to examine the question of law involved and to dispose of the same. The Special Bench relying on the decision of the Supreme Court in the case of Pramathe Nath Talukdar v. Saroj Ranjan Sarkar (supra) held that the learned Chief Justice can exercise his inherent power to constitute a larger Bench in criminal matters in situations or circumstances envisaged in civil matters by proviso (ii) to Rule 1, Chapter II of the Appellate Side Rules.
7. The appellants in the case reported in : AIR1962SC876 had gone up to the Supreme Court after obtaining special leave against two orders of this Hon'ble Court -- one of a Special Bench dismissing two revisional applications and the other of a Division Bench refusing a certificate for leave to appeal under Article 134(1)(c) of the Constitution. The Special Bench had been constituted after a Division Bench had agreed that, because of the importance of the questions of law raised in the two applications in revision and some earlier decisions of this Court bearing on those questions, the application should be referred to the Chief Justice for constituting a larger Bench. But as the Division Bench did not formulate the point or points on which they differed from the earlier Division Bench decisions of this Court, the question of competency of the Special Bench was raised. The Supreme Court was unanimous on the question of competency of the Special Bench and S. K. Das, J. in his minority judgment dealt with this aspect in detail. In paragraph 12 of the judgment the learned Judge has observed :-
'Even if Rules 1 and 5 in Chapter VII may not strictly speaking, apply to the present case because the Division Bench consisting of Mukherjee and Bose, JJ. did not formulate the point or points on which they differed from the earlier Division Bench decisions referred to by Mukherjee J., I think that the principle of those rules would apply and it was open to the Chief Justice, on a reference by the Division Bench, to constitute a larger Bench to consider the case. I am also in agreement with the view expressed by the Special Bench that the absence of a proviso to Rule 9 in Chapter II corresponding to the proviso to Rule 1 does not take away the inherent power of the Chief Justice to refer any matter to a Bench of three Judges'.
8. The aforesaid observation was also referred to by the Special Bench in Tara Dutta's case : AIR1975Cal450 (SB).
9. Under Rules 1 and 5 of Chapter VII of the Appellate Side Rules a reference may be made in criminal matters to a Full Bench by a Division Bench when it differs from another Division Bench and the point or points of difference have to be formulated. The Special Bench constituted in the case of Pramathe Nath Talukdar v. Saroj Ranjan Sarkar (1962 (1) Cri LJ 770) (SC) was on a requisition by a Division Bench of this Court and the Supreme Court in the said case held that the Chief Justice had the inherent power to constitute a larger Bench in special circumstances. What would constitute the special circumstances has not been elaborated by the Supreme Court. It must however be borne in mind that the reference for the constitution of a larger Bench in that matter was in conformity with the Appellate Side Rules of this Court in all respects, except the formulation of the question for decision. The Supreme Court therefore obviously meant that in such circumstances the learned Chief Justice may exercise his inherent power.
10. In criminal matters the Appellate Side Rules of this Court have no provision for the constitution of a Special Bench on the requisition of a single Judge. On the other hand, there is a specific provision in the second proviso to Rule 9 (2) of Part I, Chapter II of the Rules which lays down that a single Judge may send back a particular case to the Criminal Division Bench. A single Judge cannot therefore bypass the Division Bench and ask for a reference to a larger Bench and the learned Chief Justice, in the event of such reference, cannot be deemed to have any inherent power to constitute a larger Bench in clear violation of the Rules of this Court. To this extent we must respectfully differ from the views of the Special Bench in the case of Tara Dutta v. The State : AIR1975Cal450 (supra) and hold that the learned Chief Justice has no inherent power to constitute a Special Bench in criminal matters on the requisition made by a single Judge.
11. We are also constrained to point out the impropriety of a single Judge making a reference to the learned Chief Justice, not because there are conflicting decisions of Division Benches of this Court, but on account of conflicting decisions of Benches of this High Court and other High Courts. Unless a single Judge follows the precedents laid down by Division Benches of this Court the resultant judicial anarchy and ununiformity of decisions can well be imagined. The Supreme Court has also in a recent decision in the case of B. Banerjee v. Smt. Anita Pan : 2SCR774 observed as follows (at p. 1148):
'The two appeals before us, raising substantially identical points, have been heard together and are being disposed of by a common judgment. Both of them stem from a decision of the Calcutta High Court reported as Sailendra Nath v. S. E. Dutta : AIR1971Cal331 . One of the decisions under Appeal (C. A. 2063 of 1973) was rendered by a single Judge of the High Court following a Division Bench ruling of the same Court (i.e. the one reported as : AIR1971Cal331 ) since he was obviously bound by it'.
12. In the premises aforesaid we hold that the reference made by N.C. Mukherjee, J. to the learned Chief Justice is incompetent. The Rule will be placed for hearing before the single Bench taking criminal matters to be disposed of in accordance with law.
A.N. Banerjee, J.
D.C. Chakravorti, J.