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High Court Of Calcutta
P. D. DESAI, S. K. SEN
SOHAN LAL - Appellant
Versus
STATE - Respondent
F. M. A. F. 1993 Of 1989
Decided On : 09/05/1989
CONSTITUTIONAL LAW - JURISDICTION OF HIGH COURTS - ASSIGNMENT OF JUDICIAL BUSINESS - POWER OF CHIEF JUSTICE - INHERENT POWERS - HIGH COURT RULES - VALIDITY OF ORDERS PASSED BY JUDGE WITHOUT JURISDICTION - WRIT PETITION - INTERIM RELIEF - MODIFICATION OR VACATION - PROPER REMEDY.
Fact of the Case:
An application was filed in the Calcutta High Court seeking to recall an interim order passed in a writ petition. The application was heard by a single judge who was assigned to hear only part-heard and contempt matters on that day. The interim order had been granted by a different single judge in the same writ petition.
Finding of the Court:
The single judge who passed the impugned order did not have the jurisdiction to hear the application and pass the order as he was not assigned to hear such matters on that day. The power to assign judicial business among the judges of the High Court, whether sitting singly or in Division Courts, is vested in the Chief Justice. The Chief Justice has the inherent power to constitute Benches and allocate judicial business, and this power cannot be taken away by the absence of a specific provision in the High Court Rules.
Issues: 1. Whether the single judge had the jurisdiction to hear the application and pass the impugned order? 2. Whether the interim order could be recalled by the single judge who passed the impugned order?
Ratio Decidendi: 1. The power to assign judicial business among the judges of the High Court, whether sitting singly or in Division Courts, is vested in the Chief Justice under the fundamental laws and also inheres in him. The High Court Rules recognize and confer such powers on the Chief Justice. 2. Once the Chief Justice has determined what Judges of the Court are to sit alone or to constitute the several Division Courts and has allocated the judicial business of the Court amongst them, the power and jurisdiction to take cognizance of the respective classes or categories of cases presented in a formal way for their decision, according to such determination, is acquired. No cases which is not covered by such determination can be entertained, dealt with or decided by the Judges sitting singly or in Division Courts till such determination remains operative.
Final Decision: The order passed by the single judge was declared void and of no effect.
( 1 ) THE appeal is taken up for hearing by treating it as included in the day's cause list.
( 2 ) THE appeal arises out of an order passed by the trial Court on April 6, 1989 in C. R. No. 713 (W) of 1988. The appeal raises the question as to the power, authority and jurisdiction of the trial Court (Mr. Justice Bhagabati Prasad Banerjee) to pass the said order.
( 3 ) THE appellant (Sohanlal Baid) is the original Writ Petitioner. The eighth respondent herein initiated a proceeding against the appellant and a few others including Chhaganlal Baid and Kundanmall Baid, under Section 156 (3) of the Code of Criminal Procedure, in the Court of the Additional Chief Judicial Magistrate at Sealdah, 24-Parganas (South), seeking investigation in respect of an alleged offence punishable under Section 380 of the Indian Penal Code. The said Court directed the fifth respondent herein to inquire into the complaint and to submit a report. The case was thereupon registered as Chitpur Police Station Case No. 94 dated April 23, 1986. The said proceeding gave rise to three separate Writ Petitions with identical prayers to the effect, inter alia, that the investigation and the consequential proceeding pending in the Court below be recalled, rescinded, cancelled or revoked and that further proceedings be stayed. These Writ Petitions were filed individually by the appellant and Chhaganlal Baid and Kundanmall Baid. In the Writ Petition (C. R. 12852 (W) of 1987) filed by Chhaganlal Baid an interim order of injunction was passed on April 28, 1988 to the effect that the police authorities would be at liberty to proceed with the investigation but would not file the final report without the leave of the Court. However, in the other two Writ Petitions filed by the appellant and Kundanlall Baid (C. R. No. 713 (W) of 1988 and C. R. No. 10656 (W) of 1987 respectively), interim relief was granted staying further investigation in the case. To be precise, in C. R. No. 713 (W) of 1988 filed by the appellant, while entertaining the Writ Petition on December 24, 1987, ad interim order operative till two weeks after the Christmas Holidays was passed restraining the respondents from proceeding with the investigation on the basis of Chitpur Police Station Case No. 94. When ultimately Rule was issued on February 3, 1988, interim relief was granted in the following terms: "interim order already passed will continue till the disposal of the Rule with liberty to the respondents to apply for vacating and/or varying the interim order upon notice to the petitioner. "
( 4 ) AN application dated March 3, 1989 was filed in the Registry by the eighth respondent herein (original complainant) praying that the order aforementioned passed on February 3, 1988 in the Writ Petition instituted by the appellant be recalled and/or set aside and/or any further order or orders as may be deemed fit and proper be passed. It was averred in the application that there was a conflict between the interim order aforesaid and the interim relief granted in Chhaganlal Baid's case inasmuch as in the latter case investigation was permitted to go on but only the filing of the final report without the leave of the Court was injuncted, whereas investigation was totally barred in the present case. It was submitted that total prohibition against investigation was causing great hardship and prejudice and that, therefore, the order granting interim relief was required to be recalled and/or set aside.
( 5 ) THE said application was listed and reached hearing before Mr. Justice Bhagbati Prasad Banerjee on April 6, 1989. The material part of the order passed by the learned Judge upon the said application reads as follows"in my view the case of the three different writ petitioners was against Chitpur P. S. Case No. 94 dated 23rd April, 1986 and the grounds of challenge were the same and that contradictory orders were passed because of the fact that the three writ petitioners were moved separately on di
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