Nagen Das v. State of Assam — 1997 DIGILAW 111 (GAU)

D.N. Chowdhury, J.— A preliminary question that has arisen in this matter for our decision is as to whether a further reference to a larger Bench is competent after the third Judge in a reference under section 392 CrPC (New) expressed its view not agreeing with either of the views expressed by the two Judges of the Division Bench in a criminal appeal. The course of proceeding. The learned trial Court convicted the appellant under section 302 IP C and sentenced him to undergo imprisonment for life and to pay a fine of Rs.5,000/- in default, to undergo rigorous imprisonment for further period of two years. On appeal by the appellant against the aforesaid conviction and sentence, the Division Bench of this Court heard the same. The learned Judges of the Division Bench differed in their opinion. One view was for acquittal of the accused on setting aside the impugned judgment. The other view was in favour of dismissal of the appeal upholding the conviction and sentence imposed by the learned trial Court. Now to resolve this difference of opinion among the Judges constitution of the Division Bench, the matter was referred to the third Judge in accordance with the provision of section 392 CrPC (New). The third Judge did not agree with either of the views expressed by the Judges constituting the Division Bench. The third Judge enunciated a divergent opinion. According to the third Judge the appellant could not be convicted and sentenced under section 302 IPC, nor could he be completely acquitted. The accused appellant was ordered to be convicted under section 304 Pt II read with section 326 of the IPC and he was sentenced to suffer rigorous imprisonment for 7 years and a fine of Rs.5,000/- and in default to under to RI for a further period of 2 years. We have deliberately refrained from making any comment as to the legality and correctness of the conviction under section 304 Part II read with section 326 of the IPC as we are going to hold that the further reference to the larger Bench is incompetent. 2. After the third Judge expressed her aforesaid opinion, matter was laid before the Division Bench. The Division Bench by its order dated 16.7.96 requested the Hon'ble the Chief Justice to constitute a larger Bench to which this matter may be referred for "Suitable Orders in this behalf. 2. After the third Judge expressed her aforesaid opinion, matter was laid before the Division Bench. The Division Bench by its order dated 16.7.96 requested the Hon'ble the Chief Justice to constitute a larger Bench to which this matter may be referred for "Suitable Orders in this behalf. Said order dated 16,7.96 reads as under:- "Before the Hon'ble Mr. Justice VD Gyani, the Hon'ble Mr: Justice SL Saraf. 16.7.96 : None appears for either side. Considering the judgment delivered by third Judge on difference of opinion between two Judges of the Division Bench, serious question of precedential jurisprudence has arisen which to our mind can only be resolved by a larger Bench. Let the matter placed before the Hon'ble Chief Justice for constituting an appropriate Bench and suitable orders in this behalf. Sd/- Judge Sd/-Judge" This is how the Hon'ble Chief Justice constituted this larger Bench to which the matter has been referred. 3. Now the question is whether this further reference to this larger Bench is competent and contemplated under section 392 CrPC (New) after the third Judge expressed its final opinion irrespective of the fact as to whether such opinion of the third Judge agrees with either of the views expressed by the Judges constitution the Division Bench? To resolve this question of law, we requested Mr. NM Lahiri, learned Advocate General, Meghalaya being assisted by Mr. N. Choudhury and Mr. N. Dutta, learned Advocates to extend their valuable assistance to this Court. They readily agreed to do so and accordingly, we have heard them apart from Mr. J. Singh, learned Public Prosecutor, Assam. The learned counsel rendered their valuable assistance to the Court. 4. When the Judges composing the Court of appeal are equally divided a procedure is laid down in section 392 of the Code of Criminal Procedure 1973. The Code of Criminal Procedure 1898 (Act V of 1898) also provided a similar provision in section 429 of the said Code. These two provisions of the Code of 1898 as well as of the Code of 1973 read thus: "429. The Code of Criminal Procedure 1898 (Act V of 1898) also provided a similar provision in section 429 of the said Code. These two provisions of the Code of 1898 as well as of the Code of 1973 read thus: "429. Procedure where Judges of Court of Appeal are equally divided - When the judges composing the Court of Appeal are equally divided in opinion, the case, with their opinions thereon, shall be laid before another judge of the same Court, and such judge, after such hearing (if any) as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. 392. procedure where Judges of Court of Appeal are equally divided.-When a appeal under this chapter is heard by a High Court before a Bench of judges and they are divided in opinion, the appeal, with their opinions, shall be laid before another judge of that Court, and that judge, after such hearing as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion. Provided that if one of judges constituting the Bench, or, where the appeal is laid before another judge under this section, that judge, so requires, the appeal shall be re-heard and decided by a larger Bench of judges..." 5. Where the two Judges differ in their opinion, the entire case along with their opinion is laid before a third Judge for hearing or for his consideration. The decision of the Court thereafter would be based on the opinion of the third Judge. The law in this regard was almost consistent prior to the enactment of Act II of 1974. Is there any qualitative difference visible in the Act II of 1974 is one of the questions requiring consideration by this Bench. Mr. NM Lahiri, the learned senior counsel has emphatically pointed that there is no basic departure in the 1973 Act from the 1898 Act in this sphere. Mr. N. Dutta and Mr. J Singh, on the other hand, submitted that the proviso incorporated in section 392 added an essential transition of the 'subject matter. Mr. NM Lahiri, the learned senior counsel has emphatically pointed that there is no basic departure in the 1973 Act from the 1898 Act in this sphere. Mr. N. Dutta and Mr. J Singh, on the other hand, submitted that the proviso incorporated in section 392 added an essential transition of the 'subject matter. 6: In Sarat Chandra Mitra vs. Emperor, (1911) ILR 38 Calcutta 202 Mukherjee, J. made the following observations : "That section provides that when the judges composing the Court of Appeal are equally divided in opinion, the case with their opinion thereon shall be laid before another judge of the same Court, and such judge after such hearing, if any, as he thinks fit, shall deliver his opinion, and the judgment or order shall follow such opinion. Two points are worthy of note in connection with this section: first, that what is laid before another judge is the 'case', and, secondly, that the judgment or order follows the opinion delivered by such judge, I am not now concerned with the question of the trial of two prisoners with regard to one of whom the judges composing the Court of Appeal may be agreed in their opinion, while as regards the other the judges maybe equally divided in opinion. In such a contingency it is quite possible to maintain the view that, upon a reasonable interpretation of the term 'case', what has to be laid before another judge is the case of the prisoner as to whom the judges are equally divided in opinion. I am now concerned only with the contingency in which the judges of the Court of Appeal are equally divided in opinion upon the question of the guilt of one accused person, though upon certain aspects of the case they may be agreed in their view. In such a contingency, what is laid before another judge, is, not the point or points upon which the judges are equally divided in opinion, but the 'case'. This obviously means that, so far as the particular accused is concerned, the whole case is laid before the third judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case. This obviously means that, so far as the particular accused is concerned, the whole case is laid before the third judge, and it is his duty to consider all the points involved, before he delivers his opinion upon the case. The judgment or order follows such opinion which need not necessarily be the opinion of the majority of the three judges; for instance, at the original hearing of the appeal, one judge may consider the prisoner not guilty, another judge may consider him guilty under a different section and pass such sentence as he thinks fit. It is this last opinion which prevails, subject to the provisions of section 377 of Criminal Procedure Code in the case of confirmation of sentences of death." 7. The said decision was also followed in two other decisions of the Lahore High Court in Ahmad Sher & others vs. Emperor, reported in AIR 1931 Lahore 513 and Daulat Ram vs. Emperor, reported in AIR 1947 Lahore 244. 8. In Babu & others vs. State of Uttar Pradesh, reported in AIR 1965 SC 1467 the Supreme Court held as follows : "The section contemplates that it is for the third judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit..." 9. The decision in Babu (supra) is followed by the Supreme Court in Hethubha & others vs State of Gujarat, reported in AIR 1970 SC 1266 . Incorporating section 429 of the 1898 Code of Supreme Court observed : "Two things are noticeable; first, that the case shall be laid before another judge, and, secondly, the judgment and order will follow the opinion of the third learned judge. It is, therefore, manifest that the third learned judge can or will deal with the whole case." 10. Union of India & another vs. BN Ananthapadmanabhaiah, reported in AIR 1971 SC 1836 the Supreme Court was to deal with a question which was not raised and decided by the Division Bench. It is, therefore, manifest that the third learned judge can or will deal with the whole case." 10. Union of India & another vs. BN Ananthapadmanabhaiah, reported in AIR 1971 SC 1836 the Supreme Court was to deal with a question which was not raised and decided by the Division Bench. In a criminal revision which was heard by a Division Bench in the High Court, the following four contentions were raised, (a) that the Special Judge at Gauhati had no jurisdiction to try offences investigated by the Delhi Special Police Establishment as the Delhi Special Establishment Act was not extended to NEFA, (b) that under section 6 of the said Act the Delhi Special Police Establishment cannot investigate a case in any area, which is not a Union Territory or a Railway area, without the consent of the Govt. of the State, (c) the investigation was carried out by an Inspector of Police under section 5 (2) of the Prevention of Corruption Act under an order of a Magistrate of the First Class at Delhi, but the Magistrate did not apply his mind to the matter and mechanically gave the permission and (d) no sanction was taken under section 196 A of the Code of Criminal Procedure before congnizance was taken by the Court. There was a difference of opinion between the Chief Justice and Goswami J. The first two contentions were unanimously rejected by the learned Division Bench consisting of the Chief Justice and Goswami J. There was a difference of opinion of the two Judges on the points (c) and (d). Before the third Judge a question was raised as to whether the Magistrate at Delhi has had jurisdiction to accord sanction to the Inspector of Police of the Delhi Special Police Establishment to investigate the case in Assam. The learned third Judge held that the order of the Magistrate of the local jurisdiction was necessary and excepting a Magistrate of the district where the crime was committed no other Magistrate outside the jurisdiction could make an order for investigation. The learned Judge also held that the Magistrate at Delhi did not apply his mind to allow the Inspector of Police to do the investigation. In the result the proceedings before the Special Judge were quashed. The learned Judge also held that the Magistrate at Delhi did not apply his mind to allow the Inspector of Police to do the investigation. In the result the proceedings before the Special Judge were quashed. The Supreme Court in the aforesaid case observed as follows : "A question arose as to whether a new contention as to the competency of the Magistrate at Delhi to sanction investigation could have been raised before the third learned judge when it had not been raised before the Division Bench Counsel for the respondents contended that under section 429 of the Code of Criminal Procedure the case was to be laid before the third learned judge and the third learned judge was empowered to deal with the entire case and the judgment and order would follow the opinion of the third learned judge. This question came up for consideration in the recent unreported decision in Hethubha vs. State of Gujarat (Criminal Appeal No.100 of 1967, D/ 13.3.1970) (since reported in AIR 1970 SC 1266 ). It was contended in that case on behalf of the appellants that the third learned judge could only deal with the differences between the two learned judges and not with the whole case. This Court held that the third learned judge could deal with the whole case. The language of section 429 of the Code of Criminal Procedure is explicit that the case with the opinion of the judges comprising the Court of Appeal shall be laid before another judge of the same Court. The other noticeable feature in section 429 of the Code of Criminal Procedure is that the judgment or order shall follow the opinion of the third learned judge." 11. In Bhagat Ram vs. State of Rajasthan, reported in AIR 1972 SC 1502 the Supreme Court while dealing with the aforesaid case observed that the third Judge can deal with the matter in difference and has no power to reopen the whole case and convert an order of acquittal into one of conviction. 12. The Supreme Court in State of Andhra Pradesh vs. PT Appaiah & another, reported in AIR 1981 SC 365 was confronted with Bhagat Ram (supra). 12. The Supreme Court in State of Andhra Pradesh vs. PT Appaiah & another, reported in AIR 1981 SC 365 was confronted with Bhagat Ram (supra). In the aforesaid the Supreme Court following the decisions in Babu (supra); Hethubha (supra), BN Ananthapadmanabhaiah (supra), observed that under section 429 of the Code it is for the third Judge to decide on what points he shall hear arguments, if any, and that postulates that he is completely free in resolving the difference as he thinks fit. The Supreme Court encountered the decision of Bhagat Ram (supra) in the following passage : "In view of these authorities, which were not noticed in Bhagat Ram's case ( AIR 1972 SC 1502 ) we are unable to agree that the learned third Judge in the instant case to whom it was referred under section 429 overstepped the limits of his jurisdiction in deciding the case as he did." We thus find that the Supreme Court is persistently consistent in its view so far about the authority of the third Judge in resolving the difference of the two judges as he or she thinks fit under the old Code. The material consideration therefore is as to whether the new Code added different situation. In the 1973 Code a proviso is added to the main section. 13. A proviso is a provision or a portion of a clause in a statute, the function of which is either to exclude something from the enacting provision or to qualify or to limit its generality, or to leave out some "possible ground of mis-interpretation". Difficulties can be avoided, according to Maxwell, by applying the general rule that the words of a proviso are not to be taken "absolutely in their strict literal sense." One of the purpose of inserting of a proviso is to allay fears and eliminate apprehension. A proviso is to be considered in relation to the principal provision to which it stands as a proviso. It is to be harmoniously construed with the main section. It should not destroy the main provision or another provision of the contemporaneous enactment. Lord Macmillari in Madras and Southern Maharatta Railway Co. A proviso is to be considered in relation to the principal provision to which it stands as a proviso. It is to be harmoniously construed with the main section. It should not destroy the main provision or another provision of the contemporaneous enactment. Lord Macmillari in Madras and Southern Maharatta Railway Co. vs. Bezwada Municipality, 71 Ind App 113 laid down the law as follows : "The proper function of a proviso is to except and deal with a case which would otherwise fall within the general language of the main enactment, and its effect is confined to that case. Where, as in the present case, the language of the main enactment is clear and unambiguous, a proviso can have no repercussion on the interpretation of the main enactment, so as to exclude from it by implication what clearly falls within its express terms. "The territory of a proviso therefore is to carve out an exception to the main enactment and exclude something which otherwise would have been within the section. It has to operate in the same field and if the language of the main enactment is clear it cannot be used for the purpose of interpreting the main enactment or to exclude by implication what the enactment clearly says unless the words of the proviso are such that is its necessary effect." 14. While interpreting the provision of section 162 of the CrPC (1898) which was amended by the Act 18 of 1923, the Supreme Court in Tahsildar Singh vs. State of UP reported in AIR 1959 SC 1012 restated the law as follows : "This leads us to the main question in the case, i.e. the interpretation of section 162 of the Code of Criminal Procedure. The cardinal rule of construction of the provisions of a section with a proviso is succinctly stated in Maxwell's Interpretation of Statutes, 10th Edn., at p. 162 thus : The proper course is to apply the broad general rule of construction, which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. Unless the words are clear, the Court should not so construe the proviso as to attribute an intention to the legislature to give with one hand and take away with another. To put it in other words, a sincere attempt should be made to reconcile the enacting clause and the proviso and to avoid repugnancy between the two." 15. Whether a proviso is to be construed as limiting the main provision or as a 'substantive clause, it cannot be disassociated from the provision to which it stands as a proviso. It must be construed harmoniously with the main part of the section. If on a fair construction of the principal provision of the section is plain and clear, a proviso cannot broaden or circumscribe the scope. The draftsman, often incorporate a proviso to remove possible doubts, with a view to make matter understandable. A proviso must be limited to the subject matter of the enacting clause. It is a settled rule of construction that a proviso must prima facie be read and considered in relation to the principal matter to which it is a proviso. It is not a separate or independent enactment. Words are dependent on the principal enacting words, to which they are tacked as a proviso. They cannot be read as divorced from their context (1912 AC 544). "If the rule of construction is that prima facie a proviso should be limited in its operation to the subject matter of the enacting clause, the stand we have taken is sound. To expand the enacting clause inflated by the proviso, sins against the fundamental rule of construction that a proviso must be considered in relation to the principal matter to which it stands as a proviso. A proviso ordinarily is but a proviso, although the golden rule is to read the whole section, inclusive of the proviso, in such manner that they mutually throw light on each other and result in a harmonious construction. The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The proper course is to apply the broad general rule of construction which is that a section or enactment must be construed as a whole, each portion throwing light if need be on the rest. The true principle undoubtedly is, that the sound interpretation and meaning of the statute, on a view of the enacting clause, saving clause, and proviso, taken and construed together is to prevail. (Maxwell on Interpretation of Statutes, 10th Edn. page 162). Dwarka Frasad vs. Dwarka Das Saraf, (1976) 1SCC128,136,137." 16. The proper course is to apply the broad general rule of construction, which envisages that a section or an enactment is to be construed as a whole, "each portion throwing light, if need be on the rest." Where however the language is plain and obvious and other view is possible it is meaningless to veer round the question whether the proviso operates as a substantive provision or it functions as an exception. Label is not conclusive. 17. There is no significant difference between the section 429 of the old Code and the section 392 sans the proviso. As-per the procedure prescribed by the new Code, in the event of the difference of opinion between die Judges hearing the appeal, the appeal shall be laid before another Judge of his Court for hearing of the whole case and who on hearing the case deliver his opinion and the judgment or order will abide by the opinion of the third Judge. The third Judge can or will deal with the whole case and therefore the third learned Judge is altogether uninhibited in resolving the difference. The Parliament did not intend to make any departure from the legal position resolved by the highest judicial authority of the land and accordingly maintained the statutory scheme unimpaired. Therefore the Legislature in its wisdom did not seek to clarify the expression 'case' and left the matter to the discretion of the Bench hearing the case. There is an obvious difference between a civil and criminal cases. Precise and definite issues can be framed in a civil case and the controversial issues can be marked and defined with case. Therefore under the corresponding provisions in the Letters Patent of High Court and in the Code of Civil Procedure, the view of the majority of all the Judges including those who first heard die case prevails in a civil matter. Therefore under the corresponding provisions in the Letters Patent of High Court and in the Code of Civil Procedure, the view of the majority of all the Judges including those who first heard die case prevails in a civil matter. It is not workable in most criminal cases where the findings are intermixed and intermingled. 18. The language of the statute is plain and unambiguous. The provisions contained the procedure in the contingency where the Judges of the Court of appeal are divided, the 'case' is required to be laid before a third Judge and the judgment and order shall follow the opinion of the third Judge. The proviso cannot be construed to root out the enacting clause. 19. We have also made an endeavour to ascertain the intent of maker of the statute and examined the Statements aril Objects of the Bill No.XLI of 1970 published in the Gazette of India, Extraordinary Part II section 2 dated 10th December, 1970. The law making authority also took into consideration the report of Law Commission including the comprehensive report for revision of the Court, namely, Forty-First Report which was presented by the Law Commission in September, 1969. The Law Commission examined the suggesion but the insertion of an explanation for clarification of the expression 'case' and turned down the same in paragraph 31.53 at page 275 of volume of the Forty-First Report at Chapter XXXI. The Law Commission while considering the question as to whether the third Judge is bound to accept concurrent view of referring Judges on other points at paragraph 31.54 of page 276 observed -"The position as now understood is that the third judge brings to bear his independent opinion, As. was observed by the Supreme Court, it is for the third Judge to decide on what points he shall hear arguments, if any, and this postulates that the third Judge is completely free in resolving the difference as he thinks fit. In our opinion, no change in the Code is needed on this point. was observed by the Supreme Court, it is for the third Judge to decide on what points he shall hear arguments, if any, and this postulates that the third Judge is completely free in resolving the difference as he thinks fit. In our opinion, no change in the Code is needed on this point. It should be left (as at present) to the discretion of the third Judge to decide how far he will or will not disturb the view expressed unanimously by the two Judges on particular points." The Law Commission while making the aforesaid observation took note of the decisions of the Supreme Court in Dharam Singh vs. State reported (1962) Suppl 3 SCR 769 and Babu vs. State (supra). 20. The Commission also examined the possible anomaly in certain cases and referred the same along with the recommended amendment in the following paragraphs : "31.55. But there is one aspect of the matter which requires consideration. If the opinion of the third judge is to prevail, an anomalous position may occasionally be created. For example, in an appeal against conviction, judge A may be for acquitting the accused; the B may be for convicting the accused for lesser offence; judge C (the third judge to whom the matter is referred under section 429), may be for maintaining the conviction. In such cases, the third judge's view would be really a minority view, and yet would prevail. 31.56. It may be noted that efforts have been made in the past to amend section 429. A Bill was introduced in 1941 to substitute, for section 429, the following section- "When the judges composing the Court of Appeal are equally divided in opinion, the case shall be reheard before them and another judge of the Court, and the judgment or order shall follow the opinion of the majority 6f the judges so re-hearing the case." The reasons for the amendment were thus stated : "At present when the judges composing the Court of Appeal in the High Court are equally divided in opinion the case is laid before a third judge. In order to prevent the possibility of the third judge interfering with the unanimous decision of the previous two on any point of the case, it is provided that the whole case should be re-heard before a third judge and the judgment given in accordance with the opinion of the majority." This matter was considered by the Lowndes Committee which suggested that, instead of the amendment mentioned above, the following proviso be added to section 429 : Provided that, if either of the judges composing the Court of Appeal so require, the appeal shall be re-heard before them and another judge, or if the Chief Justice or the Judicial Commissioner so directs, before three other judges and the judgment or order shall follow the opinion of the majority of the judges so re-hearing the case. The Committee stated that they would prefer to retain section 429 in its existing form, but would add a proviso on the lines of the amendment proposed by them to section 378 and for the same reasons. This amendment, however, was not accepted by the Select Committee which considered the Bill in 1922. "In view of the fact that the difficulty which the amendment is intended to meet is probably of rare occurrence, they preferred to leave the law as it was. 31.57. Subsequent experience has, however, shown that the problem is not so rare as was thought in 1922. While in most cases, the procedure laid down in section 429 is satisfactory, it has led to difficulties in special cases. We think it is desirable to provide that if either of the judges first hearing the appeal so requires, or if after reference the third judge so requires, the case should be re-heard and decided by a Bench of three or more judges. It will be for the Chief Justice to decide who will constitute the fuller Bench. We recommend that section 429 be amended on exactly the same lines as section 378, to read as follows : 429. When any such appeal is heard before a Bench of two judges, and they are.... divided in opinion, the appeal with their opinions.. It will be for the Chief Justice to decide who will constitute the fuller Bench. We recommend that section 429 be amended on exactly the same lines as section 378, to read as follows : 429. When any such appeal is heard before a Bench of two judges, and they are.... divided in opinion, the appeal with their opinions.. shall be laid before another judge of the same Court, and that judge, after such hearing.....as he thinks fit, shall deliver his opinion, and the judgment or order shall follow that opinion: Provided that if either of the judges constitution the Bench, or where the appeal is laid before another judge under this section, that judge, so requires, the appeal shall be re-heard and decided by a Bench of three or more judges.." In terms of the aforesaid recommendation section 392 of the new Code was enacted. 21. In the light of discussions as made above, we are clearly of opinion that when one of the Judges of the Division Bench hearing the appeal, if so requires, the appeal shall be heard by a larger Bench of Judges. The aforesaid exercise is to be made before the appeal is laid before the third Judge for its opinion under the main enactment of section 392 of the Code. Once the case is laid before the third Judge, the third Judge alone is empowered by the statute to deal with entire matter. It will however be open to the third Judge to refer the case to a larger Bench of Judges. The third Judge is equally entitled otherwise to deal with the whole case and the judgment and order of the Division Bench is to follow the opinion of third Judge. The Bench of Judges, after the delivery of the opinion of third Judge, cannot get out of the same and refuse to accept the opinion of the third Judge and seek reference to the larger Bench. The scheme of section 392 of the Code does not visualise such a situation. 22. The decision we arrived at, find favour with a judgment of the Supreme Court pronounced recently in State of UP vs. Dan Singh & others reported in (1997) 3 SCC 747 (paragraph 22,23,24 pages 755-756). The opinion expressed by the Division Bench affirmed the Supreme Court, are respective point of view of the Judges constituting the Bench and not their judgments. The opinion expressed by the Division Bench affirmed the Supreme Court, are respective point of view of the Judges constituting the Bench and not their judgments. A special leave to appeal before the Supreme Court under Article 136 of the Constitution of India can be made against the judgment and order after the delivery of the judgment by the Bench on enunciation of the view of the third Judge. Judges constituting the Bench has had the option under the proviso requiring the appeal to be re-heard and decided by a larger Bench, which they did not adopt. "What is clearly evident is that the appeal is finally disposed of by the judgment and order which follows the opinion of the third Judge." 23. In the light of the clear statutory provision of law, we are of the view that after the learned Single Judge delivered her opinion, the judges of the Court of appeal, i.e. the Division Bench is required to follow the opinion of the learned Single Judge. 24. In view of the legislative edict we do not find any question of precedential jurisprudence which can stand on the way of the legislative will. It is one of the basic principles of the administration of justice that in a case or decision of the Court of like nature is to be decided alike. Judicial precedence has its own persuasive effect because of the maxim of Stake Decises "Keep to what has been decided previously." It is deeply rooted in the English Law but even the precedence is subordinate to the legislation. A statute can always abrogate the effect of a judicial decision and the Courts are duty bound to give effect to the mandate of the leigislature. At any rate, the Court of law cannot overlook the legislative enactment. 25. For the foregoing reasons, we are clearly of the opinion that the Judges of the Court of appeal are. therefore, required to follow the opinion of the learned Single Judge and deliver the judgment and order accordingly, the reference is answered accordingly.