RAO SHIVA BAHADUR SINGH versus THE STATE OF VINDHYA PRADESH AND ANOTHER

19S5

Raf .Kali }(11er

••

Ram Ratu1n Pa11dey

Jagannadhadas.J.

206

SUPREME COURT REPORTS

(1955]

that tht: claim of the plantiff-appellant is made out and that she is entitled to succeed.

If; however, the

The:: discussion above. is more germane to the case ·of a public t«mple wherein the idol has been Shastri cally installed and consecrated and the worship is in accordance with the Shastras. There is nothing on the record to shbw whether the temple in this case falls within this category. temple ~s a private one or idol therein is not one Shastri· cal!y consecrated, the case in favour of the plaintiff is much stronger and her right cannot be seriotisly challenged. At this stage, it is desirable to mention In the present case the emolu one other matter. ments attached to the office ar.e stated to be the daily and other offerings made to the deity at the worship hy the visiting devotees. Both the parties to thi~ case have come up to Court on the common footing this which constitutes the emoluments. that Whether and how far such votive offerings can be appropriated by a Pujari for his emoluments if the (i.e., not a private institution, temple is a public famiiy temple) and whether any usage i'l this behalf is valid is a matter which does not arise before us in this case.

is

it

In the result, the appeal must be allowed with costs throughout and the decree of the trial court must he restored.

1555

April 7

RAO SHIVA BAHADUR SINGH v. THE STATE OF VINDHYA PRADESH AND ANOTHER

fMUKHERJEA C.J., S. R. DAS, VIVIAN BOSE, STNHA and IMAM J.T.]

.

Constitution of India-Art. 145(3)-Cottstruction of-Supreme Court-Whether competent to split Up the case for ~he purpose of hearing and decision.

Held (Per MUKHERJEA C:T, DAS, VIVIAN HOSE. and IMAM .TJ SINHA J. dissentini:) that a Constitution Bench of five or more Judges before which a cace happrns to be posted in the first. instance

19$5

Rao Shiva Bohadur Singh ·v. The Stale of Vimlhya Pradesh and lllWlh~r ·

2S.C.R.

SUPREME COURT REPORTS

207

is competent to split up the case by deciding the constitutional ques tions and leaving the rest of the case to be dealt with ai:id disposecl of by a Division Bench of less than five Judges on merits in con formity with the opinion of the Constitution Bench.

The splitting up of cases in~o different stages fol' hearing and decision is not repugnant to the Constitution or the general princi ples of procedural law. The underlying principle of the Constitution is clear and all that it insists upon is that all Constitution questions should be heard and decided by a Bench of not less than five there can requirement Judges. As long as this be no constitutional objection to the rest of the case being disposed of by a Division Bench of less than five Judges, so as to saYe the time of the Constitution Bench of five or more Judges.

fulfilled

is

There is no general rule of indivisibility of a case for the pur pose of its hearing and decision : vide proviso to Article 145(3) and Article 228 of the Constitution, s. 24' and Order 18, Rule 15 of the Code of Civil Procedure and ss. · 350, 526, 528 and 556 of the Cod'! of Criminal Procedure.

Article 145(3) of the Constitu:ion cannot be so construed as to deprive the Supreme Court of the. inherent power of splitting up a case for the purpose of hearing and decision.

Per SINHA J.-The Constitution while laying. down clause (3) of Article 145, contemplates the whole matter in controversy arising in a 1.:a,e, which may include substantial questions of law as to the interpretation of the Coastitution as also other questions. The main clause (3), excepting cases coming wjthin the purview of the proviso, d<'cs not contemplate a splitting up of a case into parts, one part involving substantial questions of law as to the interpretation oF the Cons;itution and another part .or parts not involving such questions.

The language ot dausc (3) of Article 145 does not warrant the hearing of a case. pie(:cmeal by different Benches unless it comes within the purview. of the proviso. The proviso is meant to cover onlv a limit('d class of cases which otherwise would have come with in the purview of the main clause (3). But the proviso c~nnot have a larger effect than is justified by its language. viz., that only a ques tion of that description has to be referred for the opinion. of the larger Bench. the case itself remaining on the file of the smaller Bench. The proviso th.tis makes a clear distinction between a "case'' and a "question".

Maufoi Muhammad Abdul Majid v. Muhammad Abdul Aziz !L.R. 24 I.A. 22), Burrowe~ v. High Commission Court (3 Buist. 48) and Hobibar Rahman v. Saidannessa Bibi (l.L.R. 51 Cal. 331), referred to.

ORIGINAL JURISDICTION. Petition No. 40 of 1955: lJnder Article 32 of the Constitution for a Writ

of Ha/was Corp11s.

208

SUPRE1'1E COURT REPORTS

[1955]

1955

Rao Shiva. Baltadur Si•g/t v. Tile Stal• qf Yiodhya Prad_,h and anoth~f

Purshottam Trikumdas, (K. B. Asthana, Syed Mur taza Faz/ Ali and Rajinder Narain, with him) for the petitioner.

M. C. Seta/vad, Attorney-General

for India and C; K. Daphtary Solicitor-General for India (Porus A. Mehta and R. H. Dhebar, with them) for the respon dents.

1955. April 7. The Judgment of Mukherjea C. J., Imam JJ. was delivered by

Das, Vivian Bose and Dils J. Sinha J. delivered a separate Judgment.

DAs J.-This is a petition for a writ in the nature of a writ of habeas corpus calling upon the respondents to show cause why the petitioner, who is now confined should not be set at in the Central Jail at Rewa, that he has liberty. The petitioner's grievance is been deprived of his liberty otherwise than in accord ance with procedure established by law. A rule nisi ;having been issued, the respondents have filed an affidavit by way of return to the writ. The question for our decision is whether the return is good and suft1cient in law.

The facts leading up to the present petition are few and simple. In the years 1948 and 1949 the peti tioner was the Minister of Industries in the Govern ment of Yindhya Pradesh which was at that time an acceding State within the meaning of section 6 of the Government of India Act, 1935 as amended in 1947. On the 11th April, 1949 the petitioner was arrested in Delhi on the allegation that he had accepted illegal ,gratification in order to show favour to fanna Dia moncl Mining Syndicate in the matter of the lease of the Diamond Mines at Panna. In December, 1949 the petitiom:r along with one Mohan Lal, who was the then sel!retary in the Ministry of Industries. was put up for trial before the Court of Special Judge, Rewa, c0nstituted under the Vindhya Pradesh Criminal Law Amendments (Special Courts) Ordinance No. V of 1949. The charges were under sections 120-B, 161 465 anc1 466 of the Indian Penal Code as adantecl for \li:i,.lhva l'rJc.ksh hv the Indian Penal Corle l/\pplica t>nn to Vindhya Pradesh) Ordinance No. XLVTH of

1955

Rao fihfra Bahatlur Singh ·v. The State of Vindhya Pradesh and another

Das .r.

the accused and sentenced

SUPREME COURT REPORTS

2 S.C.R. 209 1949. By his judgment pronounced on the 2()th July 1950 the Special Judge acquitted both the accused. The State preferred an appeal against that acquittal to the Judicial Commissioner of Vindhya Pradesh. By his judgment pronounced on the 10th March 1951 the Judicial Commissioner reversed the order of acquittal, them to convicted both different terms of rigorous imprisonment under the different sections in addition to the payment of cer fines. On the application of the petitioner taln and his co-accused the Judicial Commissioner on the 1,2th· March 1951 issued a certificate to the effect that fon~ points of law raised in the case and formulated by him in his order were fit for the consideration of this Court in appeal under article 134 of the Constitu tion ot India. A petition of appeal was filed in this Court on the strength of this c_ertificate of fitness and it was registered as Criminal Appe;:i.l No. 7 of 1951.

As the case involved a substantial question of law as to the interpretation of the Constitution, it was, in April 1953, placed before a Bench of five Judges of this Court as required by article 145t3) of the Con stitution. For convenience of reference we shall call ~ Bench of five or more Judges as the Constitution Bench. The validity of the convictions and sentences was challenged before the Constitution Bench 9n the ground that there had been infringements of articles 14 and 20 of the Constitution. A further point of law was raised that no appeal lay to the Judicial Commissioner from the acquittal by the Special Judge. By their judgment pronounced on the 22nd May 1953 the Constitution Bench rejected all these objections. The: judgment concluded with the following direc tion: "The appeal is accordingly directed to be posted for consideration whether it is to be heard on merits''. This was evidently done in view of the fact that the certificate of fitness granted by the Judicial Commis sioner was limited only to four points of law.

The constitutional points having been disposed of, the appeal was placed before a Division Bench of three Judges who on the 20th October 1953 ordered

1955

Rao Shiva Ba/UJdur Sin6h v. The State of Vindlrya Prtuksl. and D'10l/rer

DusJ.

210

SUPREJ\1E COURT REPORTS

L1955

the appeal to be heard on the merits. The appeal Was accor_dingly put up for hearing before another Division Bench consisting of three Judges. On the 5th- March 1954 this Division Bench allowed. the ap peal of Mohan Lal and acquitted him but dismissed tbe appeal of the petitioner with respect to his con viction under sections 161, 465 and 466, Indian Penal Code, as adapted in Vindhya Pradesh, but set aside his conviction on the charge under section 120-B. The sentence of three years' rigorous imprisonment was mamtained but the sentence of fine was set aside.

the

On the 18th March 1954 a petition for review was filed on behalf of the petitioner. It was directed against judgment of the Constitution Bench pronounced on the 22nd May 1953 repelling the con stitutional points as well as against the judgment of 'the Division Bench dated the 5th March 1954 dis missing the petitioner's appeal on the merits. On objection being taken by the Registry against one applicat10n being filed for the review of two judgments one of which had been pronounced much earlier than the period allowed for tiling a review ;ipplication, the petitioner filed a second application for review of the judgment of the Constitution Bench _rnd prayed for condonation of the delay in liling the same. On the 5th April 1954 the application for review was pnt up for hearing before the same Division Bench which had pronounced the judgment on the me1:its dated the 5th March 1954. After considering the points of review relating to that judgment the Division Bench on the same day came to the conclusion that no ground hfld been made out for review of that judg ment and accordingly dismissed the petition. An order was drawn up as of that date directing the peti tioner who had been previously enlarged on bail to .~urrender and serve out his sentence.

On the 12th April 1954 another petition was filed on behalf of the petitioner praying review matter relating to the judgment of the Constitution Bench delivered on the 22nd May 1953 be placed be fore a Constitution Bench for final disposal. That re view application was put up before a Constltc1tion

that the

2 S.C.R..

SUPREME COURT REPORTS

211

Bench which on the 17th May 1954 declined to enter tain the same.

In the meantime the petitioner had in the last week ·of April 1954 surrendered and has since then been confined in the Central Jail at Rewa. The present application has, therefore, been made for a writ of Jwhcas corpus on the allegation that the petitioner has been and is being deprived of his liberty otherwise than in acc.ordance with procedure established by law.

1955

RaD Shiva Baluulur Sin'h v. T~ State of Vinrihya Pra~s/J 1111d another

DasJ.

the proper forum

Jn the present petition the petitioner has again urged that the Court of the Judicial CoJnmissioner of for Vindliya Pradesh was not entertaming the appeal against the judgment of the Special Judge and consequently the judgment of the Judicial Commissioner setting aside the acquittal of the petitioner convicting and imposing ·sentence of imprisonment was void and inoperative. Alternative ly, 1t has been urged that, assuming .that the Judicial Commissioner had jurisdiction to hear the appeal the Special Judge and his judgment was in from accortiance with procedure law, the appeal filed by the petitioner in. this Court against the judgment of the Judicial Commissioner should have been, under article 145(3) of the Consti tution. heard and completely dis!)osed of by the Comtitution Bench. As regards the first point as to the incompetency of the Court of the Judicial Com the decision missioner to entertain the aooeal from of the Special fully deriit with bv the Constitution Bench and cannot be in reagitflted. Tncleed, same. supoort of this petition has not pressed The only point urned before us is the alternative plea mentioned above which deoends for its decision on a true construction of article 145.

Judge the ·same has been

learned counsel anpearing

established by

the

Article 145 bv clause (1) authorises this Court. sub- 1ect to the provisions of anv law made bv Parliament and with the approval of fhe President, to make rule~ for r~!!nlatinQ: Q:enerally the !)ractice and procedure of the Court. 'inclnding. amongst others. rnles as to the pr0cerl11re for hearing anneals. as to the entertHinment of appeals under s11h--clause (c) of clause 0) 0f artklP

i955

Rao Shifa Bahadur Sing/I ·V. Tlte State 11f Vindhyl,l 'Pmtfi•sh im.1 another

Das .f.

21'2

SUPREME COURT REPORTS

[1955]

134 and as to the conditions subject to which any judgment pronounced or order made by the ·Court may be reviewed and the procedure for such review. Clauses (2) and (3) of the article are in the terms fol lowing:-

"(2) Subject to the provisions of clause (3), rules made under this article may fix the minimum num ber of Judges who are to sit for any purpose, and may provide for the powers of single Judges and Division Courts.

(31 The minimum number of Judges who are to sit for the purpose of deciding any case involving a substantial question of law as to the interpretation of thi~ Constitution or for the purpose of hearing any reference under article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the. Court . is satisfied that the involves ~ substantial appeal question of law as to the interpretation of this Con" stitution the determination of which is necessary for the disposal of the appeal, such Court sh:ill refer the question for opinion to a Court constituted as required hy this clause for the purpose of deciding any case involving such a question and shall on receipt of the opinion dispose of the appeal in conformity with such opinion".

The contention of the petitioner is that the question whether a particular case involves a substantial ques tion of law as to the interpretation of the Constitu tion is to be examined at the time when the case first comes .before. this Court. If at that stage is found that it is a case involving a substantial ques tion of law as to the interpretation of. the Constitu that tion charact.er and quality and the minimum number of Judges who are. to sit for the purpose of deciding suc)l case must be a Constitution Bench, that is to say, a then Bench of at least five Judges. The argument proceeds to sav that once the Con9titution Bench that takes seisin of the case and starts the hearing

impressed with

it becomes

irrevocably

it

2 S.C.R.

SUPREME COURT R,EPORTS

213

DasJ.

1953 Rao Shiva.

Bench and that Be;nch alone must decide the whole of such case, that is to say, decide all questions, consti- tutional or otherwise, arising in the case. Sri Pur- Balradur Sin~ shottam Trikumdas who appears in support of this 77re ~ateJt: petition has i:trongly relied on the language used i~ 'f'i"::J0anZ~n. clause (3) and contends that "the case" cannot be spht up and that the clause requires the entire case to be disposed of by the Constitution Bench. He, there- fore, urges that the Division Bench had no jurisdic- tion to take up the case involving substantial ques- tion~ of law as to the interpretation of the Constitu- tion and consequently the judgment of that Division Bench pronounced on the 5th March, 1954 was illegal and void. According to him, his client's appeal, in the eye of the law, remains undisposed of and as he had been let out on bail until the disposal of his ap- peal, his detention in jail pursuant to the judgment of the Division Bench, which is a nullity, amounts to ·deprivation of his personal liberty otherwise than in accordance with procedure established bv law and is right under an articie 21 of the Constitution. The argument at first sight certainly appears to be plausible but on a deeper consideration of the constitutional provisions bearing on the subject and the general principles re- gulating the procedural powers of Courts we are unable to accept the same as sound or well-founded.

infringement of his fundamental

In this very case the Judicial Commissioner of Vin dhya Pradesh had granted a certificate of fitness under article 134(1)(c). Consequently under the pro viso to clause (3) of article 145 the appeal might . weJl have been placed before a Division Bench consisting In that situation, being of less than five Judges. satisfied that the appeal involved a substantial ques tion of law as to the interpretation of the Constitu~ ti on the determination of which was necessary for the disposal of the .appeal, that Division. Bench could refer the question for the opinion of a Constitution Bench and on receipt of the opinion dispose of the appt>al in. conformity with such opinion: lrut to accede to the ari:i;ument of Sri Purshottam Triknmdas will !e?d us to hold that while a Division Bench of three·

. 28-8 SCl'ND:82

1955

Rao Shiva Bohadur Singh v. The State of Vindhyu Pratfe sh aRd another

Dasi.

214

SUPREME COURT REPORTS

[1955]

Judges could split up this very case, had it been post ed before it in the first instance, by referring the con stitutional questions to a Constitution Bench for its opinion and then, after receipt of that opinion, dis posing of the rest of the case on merits in conformity with such opinion, a Constitution Bench of five or more Judges before which the case happened to be posted in the first instance could not split up the case by deciding the constitutional questions and leaving the rest of the case to be dealt with and disposed of by a Division Bench of less than five Judges on merits in conformity with the opinion of the Constitution Bench thus saving the time of the Constitution Bench. Reference may also be made to article 228 which authorises the High Court, if satisfied that a ca~e pending in a Court subordinate to it involves a sub stantial question of law as to the interpretation of the Constitution the determination of which is necessary for the cjisposal of the case, to withdraw the case and either to dispose of the case itself or determine the said question of law and return the case to the Court from which it has been so withdrawn so as .to enable the said Court to proceed to dispose of the case in con formity with the judgment of the High Court. Here ag11in learned counsel's argument leads us to hold that while the . High Court can split up a case involving a su \->5tantial question of law as to the interpretation of the Constitution a Constitution Bench of this Court these provisions of the cannot do so. Apart from Constitution there- are provisions made by procedural statutes which result in a case being partly heard by one Judge arid partly by another Judge. To cite only a few instances.- reference may be made to section 24 and Order 18. rule 15 of the Code of Civil Procedure and sections 350. 526. 528 and 556 of the Code of Cri m111al Procedure. The argument of Sri Purshottam Trikumdas .. oushed to its logical conclusion, must amount to this that althou!l:h Courts ooerating under the ordinarv procedural code mav solit uo cases intn r!ifferent sta!l:es for the nurnose of hearin'! and <leci sion. a Constitution Bench of this Court cannot do so if a case involving substantial 'que5tions of law as to

1955

Rao Shiva Bahadur Singh v. The State of v;ndhya Pradesh and another

DasJ.

2S.C.R.

SUPREME COURT REPORTS

215

the interpretation of the Constitution happens to be posted before it in the first instance.

Learned counsel for the petitioner recognises the incongruity that results from his argument but con tends that it cannot be helped because the relevant provisions referred to above expressly sanction the splitting up of cases whereas the body of clause (3) of article 145 does not. His argument is that in the cases mentioned above splitting up of cases has to be dllowed because the special provisions of the- Consti tution or other statutes provide for such splitting up in those cases. He contends that the very fact that these provisions had to be made dearly indicates that but for them there could not have been any splitting It is said that these provisions are up of the case. exceptions to the general rule of indivisibility of a to accept this reasoning as case. We are unable correct.

In the first place the proviso to article 145(3), article 228 and the other provisions of the Codes referred to above quite clearly•indicate that the splitting up of cases into different stages for hearing and decisions is not repugnant to the Constitution or the general principles of procedural law. The underlying princi ple of the Constitution is clear and all that it insists upon is that all constitutional questions should be heard and decided by a Bench of not Jess than five Judges. As long as this requii:ement is fulfilled there can be no constitutional objection to the rest of the case being disposed of by a Division Bench of less than five Judges. so as to save the time of the Consti tution Bench of five or more Judges.

In the next place we are not aware of any such general rule of indivisibility as is being insisted upon by learned counsel. There is nothing in principle which requires that a case must always be decided in its entirety by one Judge or one set of Judges even though such a case may conveniently be dealt with in two or more stages. Indeed, in Mau/vi Muhammad Abdul Majid v. Muhammad Abdul Aziz(') the Privy Council pointed out that where a Judge had before

(I) L.R. 24 I.A. 22.

216

SUPREME COURT REPORTS

[1955]

and another DasJ.

1955 Rao Shiva Bahadur Sin,h The siate of Procedure Code to authorise him to decide

him a case consisting of two parts, a question of title and an incidental question of account dependrng on title, it did not require any provision of the Civil the first Vindhya Prad.sh question and reserve the second for further investiga tion and that to treat such a proceeding as beyond the power of the Court and as an error which barred the proceedings reserved for further decisions was a serious miscarriage of the Court often exercise its inherent power, if it thinks fit to do so, to decide questions of jurisdiction or limita tion or the like as preliminary questions reserving other questions of fact for future investigation. The decision of a case at two or· more stages may and often does result in the case not being decided by the same Judge, for the Judge who· decided at the first stage may, by reason of death, retirement or transfer, be not available for deciding the case at the later stages. It follows, therefore, that no argu ment can be founded on any supposed general rule of indivisibility of a case for the purpose of its hearing and decision.

justice. Indeed,

The consideration that there is no such general rule as is relied on by learned counsel and that the split. ting up of cases not generally repugnant to law and in particular to the Constitution, leads us to the con clusion that in construing clause (3) of article 145 no quality of indivisibility need be attributed to the words "the case" used therein. A case may, to begin with, involve a substantial question of law as to the interpretation of the Constitution, but it may cease to do so at a later stage, Suppose a case which in volves a constitutional question is placed before a Constitution Bench but learned counsel appearing in support of the case intimates to the Bench that he does not press any constitutional point, surely he can not, in that situation, insist that the time of a Bench of five or more Judges should be spent on the deter mination of a case which, by his own election, has ceased· to involve any constitutional question. Like wise, when the constitutional questions involved in the case are disposed of by a Constitution Bench what

2 S..C.R.

SUPREME COURT REPORTS

217

1955

Rao Shiva Bahadur Singh V. TM State of Vindhya Pmditsh and another

Das J.

in stages, as

remains of the case cannot properly or appropriately be described as still a "case involving a substantial question of law· as to the interpretation of this Con stitution". It should be borne in mind that when a case or appeal is properly admitted to. this Court all that the partie~ are entitled to is a decison of this Court and not of any particular Bench. So long as the minimum number of Judges which the Constitu tion and the rules framed by this Court prescribe are present to hear and decide the questions raised from stage to stage, they represent the Court for the purpose of giving decisions on its behalf and the parties get all that they are entitled to under the law. If a Court the Privy is entitled to decide a case Council has held it can, there is no reason why article 145(3) should· be so construed as to deprive this.Court It will involve no violation of that inherent power. of any principle of natural ju,stice or of any legal prin ciple if we co11strue clause (3) of article 145 as requir ing only that the minimum number of five Judges must sit for the purpose of deciding any case in so far and as long as it involves a substantial question of law as to the interpretation of this Constitution. We find nothing in the language of clause (3) of article 145 which militates against this interpretation of that clause. Indeed, it is on this interpretation that the practice has grown up in this Court for a Constitution Bench to dispose of all constitutional questions and to leave the other subsidiary questions for disposal by a Divisron Bench of less than five Judges in con formity with the opinon of the Constitution Bench. There is nothing that we find in the body of clause (3) of article 145 which compels us to depart from the famous maxim cursus curiae est lex curiae which was laid down by Lord Coke in Burrowes v. High .Commis sion Court(') and which was quoted with approval in Habibar Rahman v. Saidannessa Bibi(').

For reasons stated above we consider that a good and valid return has been made by the respondents to the rule nisi issued to them and this application must be dismissed. We order accordingly.

(I) 3 Buist. 48, S3.

(2) I.L.R. 51 Cal. 331, 335.

218

SUPRE1\1E COURT RFPORTS

[1955]

1955

Rao .Shiva Bahadur Singh v. The State qf Vtndhya Pradesh and another

SINHA J.-I regret to have to differ from my learned brethren on the construction of article 145(3) of the Constitution which is the main question in contro versy in this case. Clause (3) of article 145 is in these terms:-

"The 1ninimum number of Judges who are to sit for the purpose of deciding any case involving a sub stantial question of law as to the interpretation of this Constitution or for the purpose of hearing any ref erence under article 143 shall be five:

Provided that, where the Court hearing an appeal under any of the provisions of this Chapter other than article 132 consists of less than five Judges and in the course of the hearing of the appeal the Court is satis fied that the appeal involves a substantial question of law as to the interpretation of this Constitution· the determination of which is necessary for the dis posal of the appeal, such Court shall refer the ques tion for opinion to a Court constituted as required by this clause for the purpose of deciding any case in volving such a question and shall on rece.ipt of the opinion dispose of the appeal in conformity with such . . " op1111on .

It is noteworthy that the Constitution has not vested this Court with complete power to make rules as to the constitution of Benches for hearing matters com ing before this Court in its Original, Appellate or Ad visory Jurisdiction. Clause (2) of article 145 has in vested this Court with power to make rules fixing the minimum number of Judges who are to sit for any purpose and for defining the powers of single Judges and Division Courts. But this power is expressly made subject to the limitation laid down in clause (3) quoted above; that is to say, where any -case involves a sub stantial question of law as to the interpretation of the Constitution (omitting the words not material for our present purpose) the minimum number of Judges prescribed by the Constitution to decide such a case is five. A case may involve questions of law as to the interpretation of the Constitution, as also other ques tions. In this case we have to determine whether clause (3) contemplates the whole case or a part of a

1955

Rao Shiva Bahadur Singh v. The State of Vindhya Pradesh anti· another

Sillh,,J.

2S.C.R.

SUPREM.E COURT REPORTS

219

case. In my opinion, the Constitution while laying down clause (3) of article 145 contemplates the whole matter in controversy arising in a case which may include substantial questions of law as to the inter pretation of the Constitution as also other questions. The main clause (3), excepting cases coming within the purview of the proviso does not contemplate a splitting up of a case into parts, one part involving substantial questions of law as to the interpretation of the Constitution and another part or parts not in volving such questions. My reasons for coming to this conclusion are as follows:

Clause (3) itself read along with the proviso makes a distinction between a "case" and a "question" of the nature indicated in the proviso to the clause. The Constitution has clearly indicated that cases coming within the purview of the proviso may be split up so as to admit of the questions of constitutional import ance being determined by a Bench of at least five Judges who may be described for the sake of con venience as a "Constitution Bench" in contradistinc tion to a Division Court consisting of less than five Judges, as is contemplated in the proviso. The main clause (3) requires a case of the description therein set out to be heard and decided by a Constitution Bench, whereas the proviso contemplates that only the question of constitutional importance (using a compendious phrase) has to be decided by a Consti tution Bench and the case out of which such a ques tion arises· remaining in the seisin of the Division Court before which the case was originally placed for hearing.

The Constitution has placed cases involving sub stantial questions of law of constitutional importance on a special footing. If the framers of the Constitu tion had intended that not the whole case but only particular questions of the nature indicated had to be heard by a minimum number of they would have used words similar to those used in the for the Constitution proviso makin.g it permissible Bench to give its opinion for the decision of the case by a Division Court in conformity with that opinion.

five Judges.

1955

Rao Shiva Bal;adur '6ingh V, ·r1ie State·of Vi11dhya Pmdtsh and a!fotlrtr

Sinh• J'.

220

SUPREME COURT REPORTS

[1955]

that

importance

A reference to the terms of article 228 of the Con stitution would also show the framers 6f the Constitution were fully alive to the difference between the decision of the "case itself" and a "question of involved in tha~ law" of constitutional case. It has made clear in that article that the High Court shan either decide the whole case including the question of 'law as to the interpretation of the Con stitution which was necessary for the disposal of the case or determine only such a question or questions and return the case to the original court for disposal in conformity with the judgment of the High Court on such question OT questions. The Constitution made these specific provisions to emphasize that there is a distinction between determining the case itself and determining a substantial question of law of consti- tutional. importance.

·

Can it be said that if clause (3) of article 145 had been enacted without the proviso, a case could be heard piecemeal first by a Constitution Bench which would determine only questions of law as to the inter pretation of the Constitution, and then the residue of the case being heard and. determined by a Division Court? That, in my opinion, would not be in com imperative provisions· of the main pliance with the clause (3). The framers of the Constitution therefore enacted the proviso in the nature of an exception to the general rule laid down in the main clause· (3). It has to be observed that the proviso is limited to ap peals only, subject to the further exception that such appeals should not have come up to this (:ourt through the process laid down in article 132 of the Constitu It is thus clear that not all cases contemplated tion. in the main clause 13) but only appeals of a parti· cular description would come within the qualifying provisions of the proviso.

The word "case" has not been defined but it may be taken as settled law that it is much wider than a "suit" or an "appeal". Hence whereas the proviso would apply to appeals brought up to this court, ex cept those under article 132 of the Constitution. the main cluase (3) would apply to all appeals and all

. 1955

Rao S!Uva Bahadur Siagll v. The Stat« qf Vind/1yo P,aiks/s and anotltu

SinhaJ.

2 S.C.R.

SUPREME COURT REPORTS

221

other matters coming up to this Court in its Original, Appellate and Advisory jurisdictions. In my upinion, there canµot be the least doubt that the main provi sions of clause (3) are all-embracing, and contemplate all cases coming up to this Court.

It has not been contended that the present case comes within the purview of the proviso but it has been said that if it is open to a Division Court to refer a question of constitutional importance to a Con stitution Bench, why should not a Constitution Bench be competent to refer questions other those of constitutional importance to a Division Court? The answer is that whereas the former is contemplated by the Constitution in terms, the latter is not. Nor are there any rules to that effect.

than

But it has been further observed that the splitting up of a case into parts, one involving questions of constitutional importance and the remaining part not involving questions of that kind,. is not against the provisions of the Constitution. But, in my opinion, if the Constitution has made a specific provision as to the splitting up of a case 'into parts, one cognisable by a Court of higher jurisdiction like a Constitution Bench and the rest by a court of lower jurisdiction like a Division Court, the argument is not available that a splitting up of a case apart from those specific provisions is also permissible. In this connection ref erence was made to certain provisions of the Co<,le of Civil Procedure as also of the Code of Criminal Pro cedure to show that those Codes do contemplate hear ing of the same case in part by different courts, but those are all courts of co-ordinate jurisdiction in which the question of the power of the court itself relatively to the subject-matter of the case is not in question. The court which originally dealt with the case and the court which finally came to hear and determine the matter were each one of them competent to deal with the whole matter or any part of it. That is not the position here. In this case the argument on be half of the petitioner is that as admittedly his appeal involved substantial questions of law as to the inter pretation of the Constitution and as it did not come 29-SSnND s~

222

SUPREME COURT REPORTS

[1955]

that the

J955 Rao Shiva.

and another Sinil•J.

within the purview of the proviso to clause (3) of arti- cle 145 of the Constitution, it should have been dealt Bahadur Singh with throughout by a Constitution Bench. It was sug gested in answer to this.argument that after the ques Tlie liaie of Vindhya Pradesh tions of law of Constitutional importance had been dealt with by the Constitution Bench the case ceased to be one involving such questions and therefore could have been heard by a Division Court. But the difficulty in accepting this argument is that once a Constitu tion Bench was seized of the case. it could not trans fer it to another Bench for sharing the decision of that case with it. That Bench should have heard cut the whole case and it had not the power to direct. and it did not so direct, remaining part of the case should be heard by a Division Court. Once a Constitution Bench is seized of the case, it has to hear the case to its conclusion. There was no process known to the rules framed under the rule-making power of this Court by which a case once it came be fore a Constitution Bench could get transferred from that Bench to a Division Court either automatically or by orders of any authority. But it has been su~­ gested that it may happen that a Constitution Bench may start the hearing of the case. and before the hearing is concluded one of the Judges is by reason of death or otherwise disabled from hearing out the case and in that event the Chief Justice has the power to constitute another Bench. But that is quite a In that case the hearing by the 4ifferent matter. previous Bench comes to nothing and the Bench con stituted afresh by the. Chief Justice has to hear nut the whole case afresh.

,

It has also been suggested on the other side that a "case" may mean a part of a case. Jn my opinion. that submission is not well founded; because, if that argument were accepted and pushed to its logical con clusion, it may make the provisions of the main clause (3) of article 145 nugatory. Article 132 of the Con stitution has been, as indicated above, excepted from the operation of the proviso tn clau5e (3). S11ppose an appeal is brought to this Court under article 132 involved snbstanfr!l of the Constitution as the case

1955

Rao Shiva Buhadur Si11gli v. The State of Vi11dliya Pradesh and a11ot!ier

Sinha J.

2 S.C.R.

SUPREME COURT REPORTS

223

questions of law as to the interpretation of the Con stitution. That case besides involving questions of If that character, may also involve other questions. the argument that a "case" includes part of a case were accepted, then it will be permissible for a Con stitution Bench to hear the questions of constitutional importance and leave the rest of the case to be deter mined by a Division Court, though such a case is ex from the operation of the proviso pressly excluded and thus is directly within the terms of the main clause (3). Hence every case coming before this Court involving a question of constitutional importance may be dealt with in part in so far as it relates tp that question by a Constitution Bench and the remaining part by a Division Court. That, in my opinion, was not intended by the framers of the Constitution. The term "case" therefore tnust mean the whole matter in controversy before this Court. Such a matter may relate to one of several questions in controversy in the original court, if the determination of that ques tion is sufficient to dispose of the case within the to article 132 of the meaning of the Explanation Constitution.

It was further argued by the learned Attorney General that the whole clause (3) of article 145 along with the proviso must be read together. But even so read, the language of clause (3) does not warrant the hearing of the case piecemeal by different Benches unless it comes within the purview of the proviso. The proviso is meant to cover only a limited class of cases which otherwise would have come within the purview of the main clause (3). But the proviso cannot have a larger effect than is justi fied by its language, viz., that only a question of that description has to be referred for the opinion of the larger Bench, the case itself remaining on the file of the smaller Bench. The proviso thus makes a clear distinction between a "case" and a "question".

It has also been said there .is an inherent power in its business according to its the court Jn the first place. this Court is estahlished practice. still in its formative stnges and it cannot he said to

to transact

1955

Rao Shiva Bahadllr Singh v. The State ef Vindhya Pradesh and anather Sinh;;:,.

r

•

224

SUPREME COURT REPORTS

[1955]

t

f

Th

jurisdiction;

f h p · C

have an "established practice". Secondly, it cannot establish a practice in the teeth of the provisions of the Constitution which it is pledged to uphold. h d

· · e re erence o t e ec1s1on o. t e nvy otm- -cil in Moulvi Muhammad Abd1;1l Majid v. Muhammad Abdul Aziz(') is not apt because in that case the hear ing at the two stages of the trial was to be done by a that is to say, a court of co-ordinate court which could hear and determine the whole case or each of the two parts of the case taken separately by itself, unlike the present case in which the two parts of the hearing have been done by two courts of unequal power. Similarly the reference to the maxim "cursus C1Jriae est lex curiae" of Coke C.J. in Burrowes v. High Commission Court(2), referred to in Habihar Rahman v. Saidannessa Bibi(') and to the other cases all proceed on the assumption that there is nothing in the statute law against such a course being taken. But, in my opinion, such a nebulous practice is op posed to the positive provisions of clause (3) . of article 145.

In my opinion, therefore, the present case comes directly within the main clause (3) of article 145 of the Constitution and is admittedly not covered by the proviso to that clause. That being so. lhe peti tioner's appeal to this court has not been heard and determined in accordance with the procedure established by this Constitution and therefore the petitioner is entitled to the benefit. of the protection afforded by article 21 of the Constitution. His appeal, therefore, has got to be heard and determined ·in accordance with the procedure laid down in article I would therefore allow 145(3) of the Constitution. the petition to this extent only that the appeal be heard by a Constitution Bench on a declaration that the judgment of the Division Court dated the 5th March 1954 is not that of a competent court.

BY THE COURT: -

In accordance with the judgment

of the majority, the petition is dismissed.

!I) L.R. 24 !A 22. (2) 3 Buist. 48, 53. (3) i.L.R. 51 Col. 331. 33,5.