ORDER

1. Since there is a difference of opinion, let the papers of this case be placed before Hon'ble the Chief Justice of India for sending the matter before another Bench.

Markandey Katju, J.

2. Heard learned Counsel for the parties.

3. The separation of law from morality by the British positivist jurists Bentham and Austin was a great advance in legal history.

4. The oft quoted story in this connection is of the famous Lord Chancellor of England Sir Thomas More (1478-1535) who once went for a walk on a street in London with his daughter Margaret and her husband Roper. On seeing a man running on the street Margaret told Sir Thomas "Father, get that man arrested".

When Sir Thomas asked why, she replied "Because he is a bad man."

Sir Thomas then asked "But which law has he broken?" to which she replied "He has broken the law of God".

Sir Thomas then said "Then let God arrest him. I arrest a man only if he has broken a law of Parliament."

5. Often an act may be regarded as immoral by society, but it may not be illegal. To be illegal the act must clearly attract some specific provision of the Penal Code, or some other statute. This case illustrates the point.

6. This appeal has been filed agai