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2005 DIGILAW 498 (PAT)

Lalu Prasad @ Lalu Prasad Yadav v. State Of Bihar

2005-05-06

NAGENDRA RAI

body2005
Judgment 1. Perused the order of the Supreme Court dated 26th April, 2005, wherein the Apex Court has requested the High Court to constitute a Bench of two sitting Judges of this Court, namely, Justice Aftab Alam and Justice Chandramauli Kumar Prasad for hearing the cases in hand. 2. The High Court under Article 215 of the Constitution of India is the court of record. Similarly under Article 129 of the Constitution, the Supreme Court is the court of record and the Apex Court in the case of Tirupati Balaji Developers (P) Ltd. and others V/s. The State of Bihar and others, (2004)5 SCC 1 [:2004(3) PLJR (SC) 106], has held that as both are the courts of record, the High Court is not subordinate to the Supreme Court but in view of the hierarchical system, the Supreme Court is placed over the High Court. It is also equally well settled that if the Apex Court makes a request to the High Court, then that is a command of the Supreme Court and I as a Judge of this Court for about more than 15 years cannot even imagine to disobey the order of the Supreme Court. I could have constituted the Bench today itself. However, learned counsel appearing for the petitioners and the learned counsel appearing for the State of Bihar raised certain objections with regard to the same and I feel that it is my duty to mention about the same. But before mentioning about the same, I would also like to state certain facts for the simple reason that this case has wide ramifications. 3. The allegation maker and the accused belong to two political parties. Even some of the Advocates having allegiance to the parties are appearing in the cases. Since the inception of the cases, this court has been very cautious to deal with these cases. Unfortunately, even then many things have been said. The Judge is not important, it is the institution which is of paramount importance and if the institution fails, the system will fail. No one would like the High Court to behave in a cowardice manner otherwise the whole judicial system will be in peril. Unfortunately, even then many things have been said. The Judge is not important, it is the institution which is of paramount importance and if the institution fails, the system will fail. No one would like the High Court to behave in a cowardice manner otherwise the whole judicial system will be in peril. This was a case when once upon a time, one of the accused was granted bail by Justice P.K. Sarin (as he then was) and there was an allegation against the Chief Justice and Justice P.K. Sarin and a Contempt proceeding was initiated against Mr. Basant Kumar Choudhary an advocate of this Court and others and they apologised before the Court and the proceeding was dropped. 4. Now I may clarify my position about these cases. These cases were admitted on 2.8.2000 by a learned Single Judge of this Court. He referred the matter to a Division Bench. The accused persons went before the Supreme Court in Special Leave to Appeal (Cri) No. 2675 of 2004 which was disposed of on 30.7.2004 and the Apex Court held that the High Court should decide the question of sanction which is pending in this Court and the trial court will finally dispose of the matter after the question of valid sanction is decided by the High Court. However before that on 1.7.2004, the then Chief Justice R.S. Dhavan ordered that the case should be placed before a Bench presided over by Justice Smt. I.P. Singh. As the case was running already in the list it remained pending before that Court. I took charge as an Acting Chief Justice on 22nd July, 2004. Thereafter, I did not change the Bench and the matter remained pending before the same Bench and whoever sat with Justice I.P. Singh heard the case. The matter was heard by Justice I.P. Singh and Justice B.K. Jha. In the month of January, 2005, Justice Smt. I.P. Singh had severe pain in the knee and she had gone to Bombay for major operation. In the meantime, Justice B.K. Jha superannuated on the last day of the month of January, 2005 as a result of which the judgment could not be delivered. The next time in the same Bench Justice Ghanshyam Prasad became member. In the meantime, Justice B.K. Jha superannuated on the last day of the month of January, 2005 as a result of which the judgment could not be delivered. The next time in the same Bench Justice Ghanshyam Prasad became member. They heard the matter and on 20th April, 2005, Justice Ghanshyam Prasad disassociated from the case and the matter was placed before me by the office on 26th April, 2005 in the morning and in the same Bench of Justice Smt. I.P. Singh, another Judge was inducted. In the meantime, I heard a T.V. news in the Judges lounge that the Supreme Court has interfered in the matter. Thereafter, I ordered the office not to proceed with the matter. 5. I have narrated these facts to show that so far as I am concerned I was never associated with this case. In spite of that mischievous allegations are being made and many things are being said in order to defame the High Court. The politicians may have their fights but the platform for that is another place and not the High Court. While discharging my duties as a Judge I remember one thing that Judge in the office should not do anything so that he may be termed as partial and in this connection, I always follow what has been said in Sukraniti IV-5-14-15. There are five causes which give rise to the charge of partiality against the Judge. They (i) Raga (affection in favour of a party (ii) Lobha (greed), (iii) Bhaya (fear), (iv) Dvesha (ill-will against a party); and (v) Vadinoscha Rahashrutihi (the Judge meeting and hearing a party to a case secretly). 6. Thus, if a Judge acts in fear, this also is partiality which I never adhered to in my 15 years of career as a Judge. 7. Be that as it may, I have written all this to clarify that a wrong impression may not be created that at any point of time I was associated with this Case. 8. Learned counsel for the petitioner submitted that in view of the provisions of law the Apex Court cannot constitute a Bench. In this connection he drew my attention to the relevant provisions of law and the decision about which reference is being made briefly. 9. 8. Learned counsel for the petitioner submitted that in view of the provisions of law the Apex Court cannot constitute a Bench. In this connection he drew my attention to the relevant provisions of law and the decision about which reference is being made briefly. 9. The High Court of Judicature at Patna was constituted by Letters Patent for the State of Bihar and Orissa on the 1st March, 1916. Clause 28 of the Letters Patent deals with powers of Single Judges and Division Courts which runs as follows: "And we do hereby declare that any function which is hereby directed to be performed by the High Court of Judicature at Patna, in the exercise of its original or appellate jurisdiction, may be performed by any Judge, or by any Division Court, thereof, appointed or constituted for such purpose in pursuance of section One hundred and eight of the Government of India Act, 1915; and if such Division Court is composed of two or more Judges and the Judges are divided in opinion as to the decision to be given on any point, such point shall be decided according to the opinion of the majority of the Judges, if there be a majority, but, if the Judges be equally divided, then the opinion of the senior Judge shall prevail." It provides that the Bench should be constituted for disposal of the matters in pursuance of Section 108 of the Government of India Act, 1915. Section 108(2) of the Government of India Act, 1915, provides that the Chief Justice of each High Court shall determine what judge in each case is to sit alone, and what Judges of the court, whether with or without the Chief Justice, are to constitute the several Division Courts. The relevant provision reads as follows: 108(2) "the Chief Justice of each High court shall determine what Judge in each case is to sit alone and what Judges of the court, whether with or without the Chief Justice, are to constitute the several Division Courts." 10. The Rule has also been framed by the Patna High Court and Rule 10(A) of Chapter II provides that the power is vested in the Chief Justice of the High Court to constitute the Bench. The Rule has also been framed by the Patna High Court and Rule 10(A) of Chapter II provides that the power is vested in the Chief Justice of the High Court to constitute the Bench. These powers have the sanction and approval of the Article 225 of the Constitution of India which inter alia provides that the matter with regard to regulate the sittings of the court and of members thereof sitting alone or in Division Courts, shall be the same as immediately before the commencement of this Constitution unless a contrary rule is made under the constitutional provision. Up till now, no such rule has been framed. 11. He also submitted that in view of these statutory provisions, the Apex Court cannot constitute a Bench even if the Supreme Court has wide power under Article 142 of the Constitution. In this connection, he relied upon a judgment of the Apex Court in the case of A.R. Antulay V/s. R.S. Nayak and another, reported in (1988)4 Supreme Court Cases 602 where the Supreme Court has overruled the judgment rendered by five Judges of the Supreme Court where the jurisdiction of Special Court was taken away and the matter was referred to the High Court and it was held that under Article 142 of the Constitution, the Apex Court cannot nullify the statutory provisions. He has also relied upon the other judgments. It is of no use of multiplying the judgments after judgments. 12. I cannot express anything about the worth of the submissions made by the learned counsel for the petitioners for the simple reason that the matter is before the Supreme Court and the Supreme Court has directed for constitution of the Bench. If the petitioners have any point to raise, it is always open to him to raise before the Supreme Court. I am told by the parties that the next date fixed in the case is 10th May, 2005. So far this case is concerned, I am refraining from making any observations with regard to merits of the cases and believe that if the High Court will not respect the order of the Supreme Court who else will respect. I am told by the parties that the next date fixed in the case is 10th May, 2005. So far this case is concerned, I am refraining from making any observations with regard to merits of the cases and believe that if the High Court will not respect the order of the Supreme Court who else will respect. The order of the Supreme Court is binding on me and as stated above, since the next date before the Supreme Court is 10th May, 2005, let these cases be put up on 11th May, 2005 for hearing the matter regarding the constitution of the Bench as directed by the Supreme Court. As pre-scheduled, I am leaving today by afternoon flight to Bombay to attend the Conference of National Legal Services Authority and would be returning by 11th May, 2005.