C.N. Laik, Ag. C.J.
1. The above case has come up before us in the following circumstances:
2. The matter was heard by R. Bhattacharya, J. and when it was taken up for delivery of judgment, Mr. Dinesh Chandra Roy. learned Advocate appearing for the petitioner, brought to his Lordship's notice that there is a decision of the Division Bench of this Court on the issues involved in the revisional application. That case is Criminal Revision Case No. 237 of 1971, filed by Brahmanand Dayal and another and disposed of on 20th February, 1974, (reported in 1974 Cri LJ 1079 (Cal), by the Division Bench constituted by N.C. Talukdar and A. N. Banerjee, JJ.
3. Thereafter the said judgment was considered by R. Bhattacharya. J. This will appear from R. Bhattacharya, J.'s order dated 27th August, 1974.
4. Thereafter R. Bhattacharya, J., delivered his judgment on September 10, 1974. It appears from the said judgment that two points were urged before his Lordship. Mr. Roy referred before R. Bhattacharya, J. the decision in the case of Mac. Culloch v. The State decided by Talukdar, J., in Criminal Revision Case No. 141 of 1973, disposed of on 19th March, 1973 (reported in 1974 Cri LJ 182). R. Bhattacharya, J.. was of the opinion that the decision of Talukdar, J., was not applicable in the case before him. Considering other points covering about 11 pages, Bhattacharya, J., concluded that the said point urged on behalf of the petitioner was not acceptable to him.
5. Then he referred to the said judgment in the case of Brahmananda Dayal 1974 Cri LJ 1079 (Cal). After some discussion. Bhattacharya, J., stated:
I could not agree with the view taken by Talukdar, J., in Mac. Culloch's case and naturally personally speaking I cannot share the same view expressed in Brahmananda's case based upon the decision in Mac. Culloch's case (1974 Cri LJ 182) (Cal).
We may state that Brahmananda's case is a case of a Division Bench. Thereafter Bhattacharya, J., stated as follows:
The general principle is that the Single Bench is to follow the proposition of law laid down by the Division Bench of the Court, but in view of the second proviso to Sub-rule (2) of Rule 9, Part I, Chapter II of the Appellate Side Rules of this Court a case may be referred to a Division Bench for a proper decision on a question of law specially when a substantial question of law or an interpretation of statute is involved, more so when it is of general importance or public interest.
Thereafter he stated:
The question of law touching Section 200, Criminal Procedure Code, in my view, is a substantial question of law of general and public interest which requires, in the facts and circumstances, to be decided by an appropriate Division Bench for proper decision. The second point canvassed before me by Mr. Ray will be decided by me after the decision of the first point by a larger Bench.
Let this matter be placed before the Chief Justice under second proviso to Sub-rule (2) of Rule 9, Part I, Chapter II of the Appellate Side Rules of this Court for appropriate and necessary orders for referring it to a Division Bench taking Criminal Cases for decision or such other order as would be fit and proper.
6. Thereafter this matter was assigned by the Acting Chief Justice to this Court.
7. It would appear from the above judgment that Bhattacharya, J., referred the matter only for the decision of the first point by a larger Bench clearly stating that the second point canvassed before him by Mr. Roy would be decided by him after the first point was decided. It would further be noticed that the matter was referred to under second proviso to Sub-rule (2) of Rule 9, Part I, Chapter II of the Appellate Side Rules of this Court.
The said proviso runs as follows : 'Provided further that such Judge may send back any particular case he thinks fit to the Bench taking Criminal cases to be disposed of by two Judges, and no Judge sitting singly shall have power to pass a substantive sentence other than one of fine and imprisonment in default.'
8. We are concerned here with the first part of the said proviso. It appears to us that the learned Judge ought to have referred the entire case to the Bench of two Judges. But he cannot refer one point of law for decision under the proviso as quoted by the learned Judge. On this point, Mr. Roy, learned Advocate appearing for the petitioner, Mr. Bhose, appearing for opposite party No. 2 and Mr Ghose. for the State all were of the same view. The preliminary objection of Mr. Roy that this Reference is incompetent on the ground that the entire case has not been sent up, succeeds and we hold accordingly that the instant Reference is incompetent.
9. Before we part with this matter, we think it proper on our part to refer to certain decisions indicating the judicial procedure and decorum and legal propriety to be followed which have been placed by Mr. Roy and so strongly argued. Mr. Roy's contention was that Bhattacharya, J., had got no power or jurisdiction to disagree with the view of the Division Bench of this Court and refer the matter to a larger Bench. The first ease that was cited is the case of Yusuf Sheikh v. The State 58 Cal WN 279 : : AIR1954Cal258 , decided by Das Gupta, J, (as his Lordship then was) on January 11, 1954. What happened in that case was that the appeal came up for hearing before Mitter and Sen, JJ. Mitter, J., directed the case to be placed before the Chief Justice in the following words:
This appeal involves a point of law of great importance in the administration of criminal justice, and as we find ourselves in respectful disagreement with at least one decision of a Division Bench of this Court, that of Roxburgh and Blank, JJ. In Ashiruddin Ahmed v. The King, 53 Cal WN 237 : AIR 1949 Cal 1821 I feel it to be our duty to refer the question for the decision of a Full Bench to be constituted by the learned Chief Justice. My learned brother is, however, of the opinion that the said decision is not binding upon us and that the matter should accordingly rest here. I do not agree. Moreover, the point of law is of such importance that it deserves to be considered by a fuller Bench, This case must, therefore, be placed before the learned Chief Justice for such action as he may be minded to take.
The case was thereafter placed before Das Gupta. J., under the provisions of Section 429 of the then Code of Criminal Procedure. At page 284 of the said decision, his Lordship laid down as follows:
In this position I think it would be useless for me to consider the question whether the above cases were rightly decided for, even though I were of opinion that they were not rightly decided, I am bound to follow them and it is not open to me sitting as a third Judge under Section 429 of the Code of Criminal Procedure, to refer the matter to a Division Bench.
10. The next decision cited by Mr. Roy is the case of Tarapada Biswas v. Mrityunjoy Mukherjee 62 Cal WN 576 : : AIR1958Cal313 , decided by Guha Ray and Renupada Mukheriee, JJ Renupada Mukherjee, J., at page 584 of the said report stated as follows:
Unfortunately, I cannot agree with the views expressed by my learned brother on either of the two questions of law formulated in the judgment, nor am I in a position to accept the earlier decision . to be correct. Personally, I would have preferred to refer the matter for consideration of a larger Bench. Since, however, my learned brother is not inclined to do so, I am bound by the earlier decisions of the Division Benches of this Court, with reference to which I stand in the position of a single Judge, and I cannot requisition the formation of a larger Bench for consideration of the matters in dispute.
11. The next decision cited is In the case of Mahadeolal Kanodia v. The Administrator General of West Bengal : 3SCR578 , Das Gupta, J., speaking for the Supreme Court laid down as follows in paragraphs 19 and 20 of the said report which is quoted below:
Before we part with this appeal, however, it is our duty to refer to one. incidental matter. We have noticed with some regret that when the earlier decision of two Judges of the same High Court in Deorajin's case 58 Cal WN 64 : : AIR1954Cal119 , was cited before the learned Judges who heard the present appeal they took on themselves to say that the previous decision was wrong, instead of following the usual procedure in case of difference of opinion with an earlier decision, of referring the question to a larger Bench. Judicial decorum no less than legal propriety forms the basis of judicial procedure. If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of co-ordinate jurisdiction in a High Court start overruling one another's decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another single Judge on a question of law is wrong and gives effect to. that view instead of referring the matter to a larger Bench In such a case lawyers would not know how to advise their clients and all courts subordinate to the High Court would find themselves in an embarrassing position of having to choose between dissentient judgments of their own High Court.
As far as we are 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 in such matters.
12. The next decision is in the case of A. Raghavamma v. A. Chenchamma : 2SCR933 , Subba Rao, J. (as his Lordship then was) delivering the judgment on behalf of the Supreme Court observed at paragraph 29 at page 150 of the said report as follows:
As a Division Bench they were bound by the decision of another Division Bench.
13. The next Supreme Court decision is in the case of Lala Shri Bhagwan v. Ram Chand : 3SCR218 , Gajendragadkar. C.J., in paragraph 18 of the said report observed as follows:
Before we part with this appeal, however, we ought to point out that it would have been appropriate if the learned single Judge had not taken upon himself to consider the question as to whether the earlier decisions of the Division Benches of the High Court needed to be re-considered and revised. It is plain that the said decisions had not been directly or even by necessary implication overruled by any decision of this Court, indeed, the judgment delivered by the learned single Judge shows that he was persuaded to re-examine the matter himself and in fact he had substantially recorded his conclusion that the earlier decisions were erroneous even before his attention was drawn to the decision of this Court in Laxman Purshottam Pimputkar's case (1964) 1 SCR 200 : : 1SCR200 (supra). It is hardly necessary to emphasise that considerations of judicial propriety and decorum require that if a learned single Judge hearing a matter is inclined to take the view that the earlier decisions of the High Court whether of a Division Bench or of a single Judge, need to be re-considered he should not embark upon that enquiry sitting as a single Judge, but should refer the matter to a Division Bench or in a proper case, place the relevant papers before the Chief Justice to enable him to constitute a larger bench to examine the question. That is the proper and traditional way to deal with such matters and it is founded on healthy principles of judicial decorum and propriety. It is to be regretted that the learned single Judge departed from this traditional way in the present case and chose to examine the question himself.
14. We may point out that this observation of the learned Chief Justice was strongly relied on by Mr. Bhose, appearing on behalf of the Opposite Party No. 2 and Mr. Ghose, appearing for the State but Mr. Roy wants to distinguish the said decision by stating that it is not known whether the rules in Allahabad High Court from where the said case went up to the Supreme Court were the same as the rules of the Appellate Side of this Court. Moreover, he pointed out that the earlier decision of the Supreme Court in : 3SCR578 has not been considered by Gajendragadkar, C.J.
15. The next decision cited is the case of Sri Venkateswara Rice, Ginning and Groundnut Oil Mill Contractors Co. v. The State of Andhra Pradesh : 1SCR346 . It is a short judgment and Hegde, J., speaking on behalf of the Supreme Court towards the end of his judgment at page 54 of the said report inter alia, stated:
It is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that Court. It is regrettable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger Bench and not to ignore the earlier decision.
16. According to Mr. Roy, this is the latest Supreme Court decision and the observation laid down in the latest decision should have been followed and Bhattacharya, J., ought not to have disagreed with the Division Bench decision of this Court.
17. Peculiar circumstances have occurred in another case in this Court in Cri. Revn. Case No. 854 of 1973 (Reported in (1974) 1 Cal HC (N) 368) (Bimal Chandra Samaddar v. Ranajit Samaddar). It arises out of a proceeding under Sections 379 and 323 of the Indian Penal Code before the learned Sub-Divisional Judicial Magistrate and it arose out of a prayer for quashing. Talukdar, J., issued the Rule on 24th September, 1973. A. K. De. J., by his order dated 20th March, 1974, after referring to the said Supreme Court decision in : 3SCR218 directed the. records to be laid before the learned Chief Justice to enable him to constitute a larger Bench for consideration of the question after observing as follows:
This question is frequently coming up for decision before this Court. I am told that four or five other cases on this point are pending here to be heard. I feel that the matter needs to be reconsidered. That can only be achieve If the matter is considered by a larger Bench constituted by My Lord the Chief Justice. In making this order I follow the dictum of Gaiendrafitadkar, J., the then Chief Justice of the Supreme Court, in the case of Lala Shri Bhagwan v. Ram Chandra reported in : 3SCR218 .
18. The matter came up before the learned Chief Justice, M.M. Dutt and A.K. De, JJ. The following order was made on May 29. 1974.
It appears that this Reference does not lie and the matter will go back to the referring Bench for disposal'. This is the whole order.
19. The referring Bench is the Bench of A.K. De, J., who was also a party to the said larger Division Bench presided over by the learned Chief Justice. Thereafter on May 31, 1974, the matter came up before A. K. De, J., who passed the following order notwithstanding the said direction and notwithstanding the observation of the Supreme Court was before their Lordships:
Having considered the materials on record, it is thought fit to send back this case to a Bench taking criminal cases to be disposed of by two Judges in terms of the second proviso to Sub-rule (2) of Rule 9. Part I Chapter II of High Court, Appellate Side, I order accordingly.
The records may be laid before my Lord the Chief Justice for appropriate orders.
20. The learned Judge referred to proviso to Sub-rule (2) of Rule 9, Part I, Chapter II of the Rules of the Appellate Side of this Court which we are now considering.
21. The learned Chief Justice placed the matter for hearing before the Bench presided over by Borooah, J., sitting with H. N. Sen, J., made the following observation:
In the aforesaid order dated May 31, 1974, the learned Judge has not indicated as to why he was sending back the said case to a Division Bench. Undoubtedly, there is no bar to such a reference being made, but when a Judge sitting singly makes such a reference, it would be convenient for the Criminal Division Bench to which the case is referred if the reasons for such reference were indicated in the order. The scope for such a reference may occur when a substantial question of law arises in a particular case which according to the learned Judge merits consideration by a Bench of two Judges. A case may also arise where a Judge sitting singly does not agree with a decision on a particular point of either a single Bench or a Division Bench of this Court. In such a case, the learned Judge should not himself embark upon an enquiry but he should refer the matter to a Division Bench for disposal. There however there is already a decision of a Division Bench of this Court on a point with which the learned Judge is not in disagreement or which does not require reconsideration, there is no scope for making such a reference to a Bench of two Judges.
Thereafter the said Bench quoted the relevant observations which have been quoted earlier in : 3SCR218 . Their Lordships also observed:
Although in the order dated May 31, 1974. the reasons for the reference to a Division Bench do not appear A. K. De, J., has in his order dated March 20, 1974, indicated the question which in his views, required reconsideration.
The said Division Bench also noticed that A. K. De, J., did not disagree with the other proposition of law laid down in the cases but ultimately held that the order on May 31. 1974, of A. K. De, J., sending back the case to a Division Bench for disposal is not in accordance with the provisions of the Appellate Side Rules of this Court. Accordingly the said Division Bench sent back the matter to the referring Judge for being dealt with in accordance with law.
22. The matter again came up before A. K. De, J., on 21st August, 1974, on which date His Lordship passed the following order:
This case cannot be taken up by me or any Judge sitting singly because of the orders made on 31-5-1974 sending back the case to the Division Bench. A Judge sitting singly has lost jurisdiction after making that orders.
Let this case, in the circumstances, be laid before the Hon'ble the Chief Justice for necessary orders.
23. Whether the case cannot be taken up by any Judge or that Justice De has lost jurisdiction or not, the learned Chief Justice directed the matter to be heard by a Division Bench presided over by S. K. Bhattacharya, J. and we are told that the matter is in today's list before the said Bench for hearing.
24. Because the matter is pending before another Division Bench, we do not want to make any pronouncement about the healthy principles of judicial procedure or decorum to be followed in that case, except observing with regret that the litigants are suffering for no fault of theirs. So far as the instant case is concerned, which is going back to R. Bhattacharya, J., we would only hope that His Lordship would also notice specially the observations of Renupada Mukherjee, J. and Dasgupta, J.
25. In the result, this Reference is held to be incompetent, as stated in the opening of the judgment and the same is sent back to the learned Judge, for being dealt with in accordance with law.
N.C. Mukherji, J.
26. I agree.