Allahabad High Court
Smt.Chawali (Habc 594/2012 Now P.I.L.) vs State Of U.P.And Ors. on 16 January, 2015
Author: Amar Saran
Bench: Devi Prasad Singh, Amreshwar Pratap Sahi, Ajai Lamba, Amar Saran
HIGH COURT OF JUDICATURE AT ALLAHABAD, LUCKNOW BENCH Reserved on 27.11.2014 AFR Case :- MISC. BENCH No. - 9470 of 2014 Petitioner :- Smt.Chawali (Habc 594/2012 Now P.I.L.) Respondent :- State Of U.P.And Ors. Counsel for Petitioner :- K.K.Tewari,Amrendra Kumar Singh,Anil Kumar Tripathi,Chandra Prakash Singh,Dinesh Kr. Ojha,Farhan Alam Osmany,Km. Vishwa Mohini,Rajesh Kumar Verma,Satyendra Nath Rai,Vimal Kumar,Vinod Kumar Counsel for Respondent :- G.A.,Atul Verma,Dharmendra Kumar Mishra,Mohd. Ifran Siddiqui,Shishir Pradhan,Sunita Jaiswal Hon'ble Devi Prasad Singh,J.
Hon'ble Amreshwar Pratap Sahi,J.
Hon'ble Ajai Lamba,J.
(Per- Amreshwar Pratap Sahi,J) Constitutionality, legality and more particularly propriety of orders passed in proceedings relating to release of female detenues from protective homes in habeas corpus proceedings is the subject matter of this reference laid before us under orders of Hon'ble the Chief Justice dated 25.9.2014 in peculiar and complex circumstances that arose on account of passing of such orders either by the learned Single Judge or by the Division Benches that have been mentioned in the order of reference and detailed in our order dated 14.10.2014.
Taking stock of the situation and realising the gravity of the issues relating to procedural propriety and exercise of jurisdiction by the respective benches, that travel up to the issues of allocation of work under the Allahabad High Court Rules, 1952 as also the roster assigned by Hon'ble the Chief Justice, we have delved into the issues that have been raised as also the consequences arising therefrom. This has taken us to consider the jurisdictional authority and the powers exercised on the administrative side by Hon'ble the Chief Justice or the Hon'ble Senior Judge at Lucknow having its genesis in Article 225 of the Constitution of India distinguishing it from the judicial powers and exercise thereof under Article 226 of the Constitution of India.
The consequences that have ensued on account of the orders passed that are under scrutiny before us have further raised issues of an assessment of the status of such orders, their finality and exercise of powers by this bench ex debito justitae to correct and review the orders or issue necessary directions for restoring the correct procedure to be followed whenever this situation arises.
On having assessed the entire gamut of facts and on having perused the records and weighed the submissions of the learned counsel for the parties we had by our order dated 14.10.2014 framed 13 questions to be answered that was followed by further probe and investigation that resulted in framing of question no.14 vide order dated 25.11.2014 and questions no.15 to 18 vide order dated 26.11.2014. The said orders have to be necessarily read to appreciate the facts giving rise to this reference as the same incorporate and quote all the orders that are under scrutiny herein.
Additionally, apart from the said issues, we had invited and entertained arguments, that were extensively advanced by the learned amicus curiae on the question of the remedy that can be possibly explored by the exercise of powers of review ex debito justitae. On the procedure relating to the listing of the cases we had called upon the report of the Joint Registrar (Listing) vide our order dated 27.11.2014 and we reserved judgment on the same date after having heard all the counsel for the parties. The said report dated 27.11.2014 has been tendered before us.
In order to provide a bird's eye view of the controversy, I may attempt a short narration that would be sufficient to display the controversy as it arose on the facts that have been brought on record. Writ Petition (H/C) No.594 of 2012 was filed for the release of Smt. Chawali who claimed that she was being wrongly detained under orders of the Magistrate in the Women's Protection Home. This habeas corpus petition was filed through one Raj Kamal Awasthi claiming himself to be the husband of the said lady. A subsisting marriage was the foundation of this petition alleging that the girl was major. This detention was at the Women's Protection Home, Prayag Narain Road Hazratganj District Lucknow. The detention came about after an FIR was lodged on 23.7.2012 by the mother of Smt. Chawali naming the aforesaid Raj Kamal Awasthi of having committed an offence punishable under Section 363/366 IPC. It was also stated therein that the girl was only 16 years of age and the police after investigation also got the statement of the prosecutrix recorded under Section 164 Cr.P.C. She was also medically examined. The claim of the prosecutrix was that she was 19 years of age and the medical report/opinion also indicated that her age was about 18 years.
The Investigating Officer moved an application before the concerned Magistrate that according to the educational qualification certificate of Class VIII the date of birth of the girl was 23.9.1996 and as such in 2012 when the FIR was lodged she was still a minor. Consequently, the Magistrate passed orders on 10.12.2012 whereby the said Smt. Chawali was sent to the Women's Protection Home where she was detained and it is in this background that the habeas corpus petition No.594 of 2012 under Article 226 of the Constitution was filed.
The petition as drafted on perusal admits of no other fact or relief claimed except for the production of Smt. Chawali and her release on the ground of her alleged unlawful detention in the protection home on the allegation that she had already attained the age of majority.
The learned Single Judge who entertained the said petition passed orders on 21.12.2012 to produce Smt. Chawali on 4.1.2013 with a further direction that the Superintendent of the Protection Home will furnish the list of all major inmates confined in the protection home along with reasons thereof. A direction was issued to the Secretary, Arya Samaj Temple, Aliganj, Lucknow to also appear before the Court along with relevant record of marriage certificates that were being issued by the said Institution including that relating to Smt. Chawali.
The petition was directed to come up for "further orders". The petition came up for consideration before another learned Single Judge where the detenue Smt. Chawali was produced. The learned Single Judge noted the dispute about the age of the detenue and the variation reflected in the school certificate, the physical appearance and the medical report. The court did not find it proper to hand over custody of the prosecutrix, but in view of her denial about the genuineness of the school certificate, the learned Single Judge directed the Magistrate to verify the genuineness of the said document and accordingly remitted the matter back to the Magistrate to give an opportunity to the prosecutrix to establish her age and the genuineness of the document on which the prosecution had relied on. The learned Magistrate was also required to summon the original record of the concerned school in order to ascertain the veracity of the document indicating the date of birth of the detenue. The matter was allowed to remain pending and was directed to come up on 15.1.2013.
The Women's Protection Home through its Superintendent provided the necessary information with regard to other detenues as well and the matter came up on 15.1.2013 before the same learned Judge who had initially heard the petition. A detailed order was passed on the said date and the learned Single Judge posted the matter for another date. However, by the said order the learned Single Judge after taking notice of large number of female inmates being detained who were allegedly major proceeded to appoint a Committee consisting of four members out of whom three were Legal Aid Counsel of the High Court along with the Director of Child Line to act pro bono publico and submit a report after visiting the Government Protection Home, Lucknow. The report was called for so that suitable orders could be passed in each case.
After examining the details of the report the same learned Single Judge took up the matter on 21.2.2013 whereupon, the original detenue, for whom the petition had been filed, namely, Smt. Chawali was directed to be set free holding that her custody and detention in the Protection Home was illegal and uncalled for.
Simultaneously the case of other detenues were also taken up and orders were passed in relation to some of them. It is thus clear from the said order that not only the original detenue Smt. Chawali was released, but directions in respect of other detenues were issued and the matter was kept pending for further orders in relation thereto. There were neither any separate petitions nor any separate proceedings or applications for or on behalf of the other detenues. The learned Single Judge had entirely on his own proceeded in the matter.
Thus, the relief in so far as the main detenue is concerned already stood granted and exhausted, yet the learned Single Judge retained the writ petition for monitoring the release and detention of other detenues. Orders were passed on different dates but on 3.7.2013, 8.7.2013 and 27.9.2013 the learned Judge directed the matter to come up for further hearing and on 23.10.2013 passed an order to place the matter before that very Court.
The case took a different turn with the release of one Sameeha Khatoon who was under detention in the Government Protection Home at Faizabad. She had been kept in custody under the orders of the Chief Judicial Magistrate dated 15.7.2013, but was released by the learned Single Judge in these suo motu proceedings in favour of one Mohd. Idrish who filed an application claiming himself to be the father-in-law of the said Sameeha Khatoon. It may be noticed that Sameeha Khatoon or any other person had not filed any writ petition either in the nature of habeas corpus or otherwise seeking her custody or release nor were the parents of Sameeha Khatoon made parties to the proceedings. On 28.10.2013 a release order was passed setting Sameeha Khatoon free to go with her alleged father-in-law Mohd. Idrish.
The petition continued to be heard and orders were again passed on 6.11.2013, 20.11.2013, 4.12.2013 and 18.12.2013 in respect of other detenues as well.
One Masihuddin, father of Sameeha Khatoon, at this stage filed Special Appeal (Defective) No.32 of 2014 questioning the correctness and legality of the release order in relation to Sameeha Khatoon and the proceedings before the learned Single Judge. A Division Bench of this Court on 20.1.2014 granted a week's time to the learned counsel for the State to seek instructions. This special appeal ultimately came up before a Division Bench on 4.9.2014 when the matter was heard and on 8.9.2014 the Division Bench having the roster assigned for hearing special appeals passed a detailed order deferring all proceedings before the learned Single Judge. This order is already extracted in our order dated 14.10.2014. The special appeal was directed to come up on 12.9.2014 along with the records of the habeas corpus writ petition.
One of the grounds taken before the Division Bench in the special appeal was the jurisdiction of the learned Single Judge to hear the writ petition as a Single Judge matter without any notice to the appellant-father.
On 12.9.2014 a report had also been called for from the Registrar (Listing) and directions were issued to the effect that Sameeha Khatoon shall be handed over to the Superintendent, Government Shelter Home, Faizabad whereby she was sent back again to the Government Protection Home.
A Medical Board was also constituted by the division bench with directions to the Registrar, King George's Medical University, Lucknow for examining Sameeha Khatoon and submission of a report before the date fixed. The matter was directed to come up on 19.9.2014.
At this juncture Sameeha Khatoon through her alleged husband Tabrej Alam filed a fresh Habeas Corpus Petition No.299 of 2014 and the following order was passed on 18.9.2014 by another division bench having the roster of division bench habeas corpus petitions :-
"Hon'ble Amar Saran,J.
Hon'ble Shri Narayan Shukla,J.
Learned counsel for the petitioner points out that in Special Appeal (Defective) No.32 of 2014 the opposite party No.3 has been summoned to appear alongwith the petitioner on 19.9.2014.
We also find that the Registrar of the King Georg's Medical University and the Superintendent, Gandhi Memorial and Associated Hospital, Lucknow were directed to send a report after examination of Shameeha Khatoon in regard to her age by today and the report was positively to be sent to the Senior Registrar of this court in a sealed envelop.
As we also find that in Habeas Corpus petition No.594 of 2012 orders have been passed relating to the petitioner and a number of similarly placed persons we are of the opinion that the said Habeas Corpus Petition appears to be in the nature of a Public Interest Litigation. Accordingly we direct that the petition be treated and numbered as a Public Interest Litigation and be placed alongwith the present petition, Special Appeal (Defective ) No.32 of 2014 and the aforementioned report of the King Georg's Medical University before the Bench hearing the Public Interest Litigation matters.
Put up tomorrow i.e. 19.9.2014.
Order Date :-18.9.2014"
It is this order which further complicated the matter. Undoubtedly on the said date Hon'ble Mr. Justice Amar Saran was the Senior Judge at Lucknow and was also heading the Division Bench relating to PILs and Division Bench Habeas Corpus petitions, but he had no roster assigned to him in relation to special appeals.
The special appeal no.32 of 2014 was listed before the regular division bench of special appeal roster presided over by Hon'ble Rajiv Sharma,J where orders were passed in the morning session of 19.9.2014 calling for an explanation from the registry as to why the records of the case were not sent to the Court inspite of the fact that the roster was with the same court and the matter had neither been released or withdrawn or nominated to any other bench. The said order was transcribed on separate sheets as the records had not been made available inspite of the case placed in the cause list of that court.
On the same day Special Appeal (Defective) No.32 of 2014 was taken up by the bench comprising of Hon'ble Amar Saran,J and Hon'ble S.N. Shukla,J as per their order dated 18.9.2014 quoted above, and the matter was heard and decided, rendering the special appeal infructuous and disposing of writ petition no.299 of 2014 (habeas corpus) matter finally.
The Single Judge proceedings in the case of Smt. Chawali being Writ Petition (Habeas Corpus) No.594 of 2012 stood converted to a Public Interest petition PIL No.9470 of 2014 and was allowed to proceed in terms of the directions issued therein. This proceeding therefore was kept alive and survived.
The said judgment dated 19.9.2014 was brought to the notice of the Division Bench of Special Appeals presided over by Hon'ble Rajiv Sharma,J after the midday recess on the same day as per the directions passed on separate sheets in the forenoon mentioned above, and their Lordships then passed an order in the afternoon of 19.9.2014 placing the matter before Hon'ble the Chief Justice in the aforesaid peculiar circumstances for orders.
There is yet another dimension which deserves mention, namely, that the judgment dated 19.9.2014 delivered by the bench of which Hon'ble Amar Saran,J was a member, was not signed by Hon'ble S.N. Shukla,J, the other member of the bench. The file was held up when ultimately Hon'ble Justice S.N. Shukla passed a separate order by himself on 24.9.2014 sending the matter to the Hon'ble Chief Justice. All these orders have been quoted in seriatim in our order dated 14.10.2014 and consequently we are not repeating the same by requoting the same.
It is faced with these orders that the reference was made by Hon'ble the Chief Justice on 25.9.2014 whereupon our bench proceeded to frame 13 questions after having recorded the entire facts in a 54 page order dated 14.10.2014. The hearing proceeded and upon further submissions raised by the learned counsel for the parties we framed additional question no.14 on 25.11.2014 and question nos.15 to 18 on 26.11.2014. The hearing concluded on 27.11.2014 and judgment was reserved by us providing time to the learned counsel to submit their written submissions and compilation of their cases. We also called upon the Joint Registrar (Listing) to submit a report explaining that once Writ Petition No.594 of 2012 had been listed before the appropriate Division Bench on 2.8.2014, then how was it again relisted before the same learned Single Judge thereafter. The order of the division bench indicating the same is reproduced below :-
"Court No. - 7Case :- HABEAS CORPUS No. - 594 of 2012 Petitioner :- Smt.Chawali Respondent :- State Of U.P.And Ors.
Counsel for Petitioner :- K.K.Tewari,Amrendra Kumar Singh,Anil Kumar Tripathi,Km. Vishwa Mohini,Rajesh Kumar Verma,Satyendra Nath Rai,Vimal Kumar Counsel for Respondent :- G.A.,Atul Verma,Dharmendra Kumar Mishra,Mohd. Ifran Siddiqui,Shishir Pradhan,Sunita Jaiswal Hon'ble Ravindra Singh,J.
Hon'ble Vishnu Chandra Gupta,J.
As prayed, list in the next cause list.
Order Date :- 2.8.2014"
The Joint Registrar (Listing) has submitted his report indicating that the matter was initially incorrectly reported and then wrongly listed before the learned Single Judge. The report dated 27.11.2014 has been placed before us for perusal and the same is extracted hereunder :-
Hon'ble Court No.2 (Hon'ble the Larger Bench) May it please your Lordships.
My Lords, It is most humbly and respectfully submitted that today your Lordship's during the hearing of Larger Bench matter has made specific query from the undersigned as to how W.P. No.594 (HABC)- 2012 when connected with W.P. No.149 (HABC)-2014 by order dated 02-05-2014 passed by the Bench comprised of Hon'ble Mr. Justice Imtiyaz Murtaza and Hon'ble Mr. Justice Ashok Pal Singh was detached from connection and listed before Hon'ble the Single Judge on later dates and seek written explanation in the course of the day.
The undersigned called for explanation from Assistant Registrar (cause list) and Section Officer (MS II) by letter dated 27-11-2014 [Flagged A], reiterated below:-
"Today, Hon'ble Court No.2, during the hearing of Larger Bench matter listed before their Lordships, has specifically inquired as to how W.P. No.594 (HABC)- 2012 when connected with W.P. No.149 (HABC) - 2014 by order dated 02-05-2014 passed by Hon'ble Bench comprised of Hon'ble Mr. Justice Imtiyaz Murtaza and Hon'ble Mr. Justice Ashok Pal Singh was detached from connection and listed before Hon'ble the Single Judge on later dates.
You are required to give explanation as to why the same has been listed before Hon'ble the Single Judge after order dated 02-05-2014 and why the matter has not been placed before the undersigned.
Reply the same immediately as the undersigned has to furnish the report before the Hon'ble Court within the course of the day."
The report of Section Officer (MS-II) is called whereon Sri R.K. Raman, Group Incharge MS II has submitted his report alongwith photocopies of register [Flagged B] that in pursuance to order dated 02-05-2014 passed in W.P. No.149 (HC)-2014 by the Bench comprised of Hon'ble Mr. Justice Imtiyaz Murtaza and Hon'ble Mr. Justice Ashok Pal Singh, the case was directed to be listed alongwith W.P. No.594 (HC)-2012. Thereafter, the same has been listed on 23-05-2014 before the Bench of Hon'ble Mr. Justice Ravindra Singh but prior to the said date the same was listed before Hon'ble the Single Judge on 12-05-2014 and he sent the case drafts to the computer section for getting W.P. No.594 (HC)-2012 to be listed before Hon'ble Mr Justice Sudhir Kumar Saxena considering that the case is to be listed before the same Bench for recall of the orders passed by the Court on merit. No sufficient reason has been furnished by him as to why he has detached the connected file W.P. No.594 (HC)-2012 in connection with W.P.No.149 (HC)-2014 and got the same listed separately before Hon'ble the Single Judge and he has not replied as to why he has not placed the record before the undersigned.
The Assistant Registrar (cause list) was also called for report whereon he submitted a report [Flagged C] alongwith a photocopy of two case draft dated 06-08-2014 and 04-09-2014 respectively. In the report he has submitted that the Computer section only receive case draft and not the files from the Judicial sections and on the basis of which the entry in the computer is made, two such case drafts clearly reveals only one connected case that is Criminal Misc. Case No.2666-2013 (A482) signed by the officials of MS-II section and sent to the computer section with the noting that the case is tied up to the Bench of Hon'ble Mr. Justice Sudhir Kumar Saxena sitting singly.
As such, apparently in absence of any order of Hon'ble the Chief Justice or Hon'ble the Senior Judge there is not even an iota of doubt that W.P. No.594 (HC)-2012 has been incorrectly listed before the Hon'ble Single Judge once the case has been directed to be listed alongwith connected case cognizable by the Division Bench.
As such, the report is submitted.
(Avnish Saxena) Joint Registrar (J)(Listing) 27-11-2014 Having perused the record and having noticed the various orders passed by the respective benches, 18 questions in all were framed after deliberations and upon suggestions made by the learned counsel for the parties.
The question of a review Ex Debito Justitae being undertaken by this bench of the orders under scrutiny was also considered by us in detail on the strength of the decisions cited at the bar.
We have heard Sri N.P. Ojha, Sri M.G. Tripathi on behalf of the petitioners, Sri Jaideep Narain Mathur, learned senior counsel for the Legal Services Authority appointed by us as amicus curiae to assist the court, Sri Z. Zilani, learned Additional Advocate General assisted by Sri Shatrughan Chaudhary, Additional Chief Standing Counsel, and Sri Anu Pratap Singh, Advocate who also assisted the Court with a copy of the order dated 2.8.2014 and his oral submissions as we had invited any member of the Bar to assist us in this reference.
The questions that have been framed by us can be compartmentalised into the issues which are required to be answered and we have accordingly rearranged them as follows :-
Issues (A) The jurisdiction of the learned Single Judge to entertain and hear a habeas corpus petition relating to State detention. This issue would be answered while dealing with question no.1 and question no.3 simultaneously.
(B) The authority of the learned Single Judge to proceed in the matter further which had already been finally decided on 21.2.2013 vis-a-vis the original petitioner Smt. Chawali and to monitor the same as a public interest litigation. This issue would be answered while dealing with questions no.2 and 4 simultaneously.
(C) The maintainability of a special appeal against a habeas corpus petition which is criminal in nature. This issue would be answered while deciding question no.5.
(D) The jurisdiction and authority of a co-ordinate bench to entertain a fresh writ petition for the same cause of action for which a writ petition had already been filed and a special appeal was pending and summoning and connecting the records of all other petitions by the same bench. This issue would be answered while dealing with questions no.6 and 10.
(E) The power and authority of the Division Bench on the judicial side to summon the record in a special appeal for which it had no roster without any orders on the administrative side or assignment by Hon'ble the Chief Justice. This issue would be answered while dealing with questions no.7 and 8.
(F) The status of a final judgment unsigned by one of the Judges of the Bench and the conflict of opinion and its reference by Hon'ble the Chief Justice. This issue would be dealt with while dealing with questions no.9,11,14,16,17 and 18 simultaneously.
(G) Whether in the larger interest of the detenues the orders for release that have been passed by the learned Single Judge being without jurisdiction is lawful ?
Whether on merits the release orders of the detenues passed from time to time can be legally sustained on merits on the basis of the principles applicable to such detention ?
(H) The powers exercisable in this reference by this bench to review and correct the orders under scrutiny or issue necessary directions Ex Debito Justitae.
I now proceed to deal with the issues as enumerated hereinabove.
Issue No.A "Question No.1- Whether the learned Single Judge could have entertained a Habeas Corpus writ petition against a detention in a Women Protection Home which was essentially a State detention under orders of the Magistrate and was not a private detention, keeping in view the provisions of Rule 1 of Chapter XX1 of the Allahabad High Court Rules, 1952?
Question No.3- Whether the learned Single Judge inspite of the change of roster and the standing orders of Hon'ble the Chief Justice on the administrative side could have continued to assume jurisdiction of Writ Petition No.594 of 2012?"
There is practically no dispute or difference of opinion between the learned counsel on these two questions in as much as firstly the Joint Registrar (Listing) in his report dated 18.9.2014 has accepted that the status of Writ Petition No.594 of 2012 (Smt. Chawali Vs. State) was wrongly reported to be cognizable by a learned Single Judge. The explanation was also noted by us referring to the Stamp report dated 11.9.2014 and the report of the Joint Registrar (Listing) dated 18.9.2014 in our order dated 14.10.2014. This is further fortified by the second report of the Joint Registrar Listing dated 27.11.2014.
Then comes the applicability of the rules. The Allahabad High Court Rules, 1952 have been framed in exercise of the powers conferred under Article 225 of the Constitution of India. Article 225 of the Constitution of India is reproduced hereinunder :-
225. Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and 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:
Provided that any restriction to which the exercise of original jurisdiction by any of the High Courts with respect to any matter concerning the revenue or concerning any act ordered or done in the collection thereof was subject immediately before the commencement of this Constitution shall no longer apply to the exercise of such jurisdiction.
A perusal thereof leaves no room for doubt that the jurisdiction of courts is to be regulated according to the aforesaid provision under which the 1952 Rules have been framed.
Under Chapter V, the jurisdiction of Judges has been defined as to how they will sit alone or in Benches. The word "Bench" has been defined under the Rules in Chapter I Rule 3 (1) to mean that it includes a judge sitting alone. Rule 2 (vii) (f) of Chapter V further specifies the jurisdiction of a learned single Judge to include an application to which Chapter XXI of Part IV applies. Simultaneously, we have to read Rule 8 of Chapter V that defines cases to be heard by two Judges.
Chapter XXI Rule 1 of Part IV of the Rules is a specific rule relating to the entertaining of writs in the nature of habeas corpus. Sub-rule(2) of Rule 1 is hedged by a proviso which indicates that a habeas corpus petition directed against private custody shall be entertainable by a learned Single Judge. Sub-rule (1) provides that a habeas corpus petition under Article 226, except against private custody, shall be made to the Division Bench. The aforesaid rule admits of no ambiguity and, therefore, Writ Petition No.594 of 2012 was obviously wrongly reported to be a matter cognizable by a learned Single Judge as it arose out of state detention and not private custody, and could have only been placed before a Division Bench. The rule aforementioned was, therefore, clearly violated by the registry and omitted to be noted by the learned single judge.
Apart from this the 1952 Rules empowers Hon'ble the Chief Justice to prepare the roster or assign cases to different benches.
The Chief Justice, under proviso (a) that appears after Chapter V Rule 2 (ix), can allocate any matter assigned to a single Judge to be heard by a Division Bench or vice-a-versa. This empowers the Chief Justice also to exercise his power of roster in relation to cases that are also governed by Rules 13 and 14 of Chapter V in relation to any subsequent application on the same subject or tied-up or part-heard cases. Apart from this, the Chief Justice has the powers under Rule 6 of Chapter V to constitute a Bench of two or more Judges to decide a case or any question of law formulated by a Bench hearing a case by way of a reference and it is in the exercise of such powers that the present reference has been made to be answered by us.
This matter of supremacy of the powers of the Chief Justice of assigning the roster is no longer res-integra and has been subject matter of several pronouncements by this Court as well as by the Apex Court. The decisions that have been cited by Sri Zilani, learned Additional Advocate General, in support of this proposition and a couple of decisions that we have come across are mentioned hereinunder :-
1. (2013) 2 SCC 398 (Kishore Samrite Vs. State of U.P.)
2. (2011) 14 SCC 770, (State of Punjab Vs. Devendra Pal Singh Bhullar)
3. (2010) 10 SCC 320, (State of U.P. Vs. Neeraj Chaubey)
4. 2010 (83) ALR 664, (FB) (Smt. Maya Dixit Vs. State)
5. 2008 (1) ADJ Page 469 (Pandit Jagdish Narain Mishra Vs. State of U.P.)
6. (2006) 8 SCC 294, (Jasbir Singh Vs. State of Punjab)
7. 1997 (11) SCC 230, (A.H. Ansari & others Vs. High Court of Judicature at Allahabad)
8. (2001) (45) ALR 495 (DB), (Prof. Y.C. Simhadri Vs. Deen Bandhu Pathak)
9. (1998) 1 SCC 1, (State of Rajasthan Vs. Prakash Chand)
10. 1996 AWC 644, (FB) (Sanjay Kumar Srivastava Vs. Acting Chief Justice)
11. AIR 1962 SC 876, (Pramatha Nath Taluqdar Vs. Saroj Ranjan Sarkar)
12. AIR 1959 All. 421, (State Vs. Devi Dayal) The ratio of the said decisions could not be disputed or contradicted by any of the learned counsel assisting us.
This has also been admitted in the written submissions tendered by Sri Mathur, learned amicus curiae, even though his submissions have been qualified by the arguments relating to the consequences of the orders passed by the learned Single Judge. It is urged by him that the orders of release are not invalid even though the learned Single Judge did not have the jurisdiction or the roster assigned for dealing with such a subject matter. Sri Mathur, therefore, qualified his arguments to the extent that the orders passed by the learned Single Judge would not be inherently lacking in jurisdiction with which we shall deal with later on.
In my opinion, the rules clearly indicate the bifurcation of the jurisdiction of a learned Single Judge and a Division Bench while hearing a habeas corpus petition in a matter of private detention or detention by the state authorities. The matter was unequivocally and unquestionably cognizable only by a Division Bench. On facts, in the present case, Writ Petition No.594 of 2012 clearly arose out of an order passed by the Magistrate on 10.12.2012 whereby the petitioner therein Smt. Chawali had been sent to the Womens Protection Home under the aforesaid order and kept in detention. This was not a case of either the petitioner or any of the detenues that arose out of private detention. Thus, neither the rules nor the roster permitted the learned Single Judge to entertain the said petition before him and pass orders thereon.
Not only this, the roster of the learned Single Judge had itself been altering in subject-matter between the period during which he had been passing orders continuously as noted in our order dated 14.10.2014. The roster as we could gather and which has been provided to us by the office indicates broadly the following roster details of the learned Single Judge who continued to hear the matter either before the final order was passed in the matter of Smt. Chawali on 21.2.2013 or even thereafter. A birds eye view of the roster is extracted hereinunder :-
Roster of Hon'ble Sudhir Kumar Saxena,J (Single except item no.8) Between 2.1.2013 to 1.7.2014 Sl.
Period of Roster Between 2.1.2013 to 1.7.2014 ROSTER DETAILS 1 02/01/13 Fresh Applications u/s 482 Cr.P.C. relating to complaint cases, Habeas Corpus Writs and Matters u/s 407 Cr.P.C. for Orders, Admission and Hearing including Bunch Cases and Criminal Appeals from the year 2010 for hearing.
At 2:00 p.m. : Criminal Revisions and applications u/s 482 Cr.P.C. starting from oldest upto the year 2002 and cases related to rape, murder, kidnapping and dacoity for Orders, Admission and Hearing Bunch Cases.
Thereafter : Final Hearing of matters starting from the oldest of this category.2
04/02/13 Fresh Major Bail Applications (i.e. Bail Applications u/ss 302,304,304-B and 396 I.P.C.) for Orders, Admission and Hearing AND Criminal Appeals for the year 2008 and 2009 for Hearing AND Fresh Criminal Appeals including Bail and matters u/s 378 Cr.P.C. for Orders, Admission and Hearing including Bunch Cases.
At 2:00 p.m. : Major Bail upto the year 2011 for orders.
Thereafter : Final Hearing of matters starting from the oldest of this category and Criminal Appeals in which accused persons are in custody.3
08/04/13 Fresh Major Bail Applications (i.e. Bail Applications u/ss 302, 304, 304-B and 396 I.P.C.) for Orders, Admission and Hearing AND Criminal Appeals for the year 2008 and 2009 for Hearing.
AND Fresh Criminal Appeals including Bail and matters u/s 378 Cr.P.C. for Orders, Admission and Hearing including Bunch Cases.
At 2:00 p.m. : Major Bail upto the year 2011 for orders.
Thereafter : Final Hearing of matters starting from the oldest of this category and Criminal Appeals in which accused persons are in custody.4
22/4/13 Fresh F.A.F.O.s, Civil Revisions for Orders, Admission and Hearing including Bunch cases.5
20/5/13 Fresh F.A.F.O.s, Civil Revisions for Orders, Admission and Hearing including Bunch cases.
At 2:00 p.m.: Cases of the above category starting from oldest for orders Bunch cases.
Thereafter : Final Hearing of matters starting from the oldest of this category.6
01/07/13 Fresh F.A.F.O.s, Civil Revisions for Orders, Admission and Hearing including Bunch cases.7
22/7/13 Listed Service Writs relating to Government service upto the year 2010 for Orders, Admission and Hearing including Bunch cases.8
26/8/13 Division Bench : Listed Service writs starting from the oldest upto the year 1995 for Orders, Admission and Hearing including Bunch cases.9
09/10/13 Fresh Applications u/s 482 Cr.P.C. for orders, Admission and Hearing including Bunch cases.
Then : On priority basis starting from the oldest cases U/s 482 Cr.P.C. relating to Murder, Rape, Kidnapping and Dacoity in which investigation or proceedings of Trial Court have been stayed for Orders, Admission and Hearing.10
02/01/14 Fresh and listed F.A.F.O.s, Second Appeals for Orders, Admission and Hearing including Bunch cases.11
07/04/14 Listed service writs from 1 January 2006 to 31 December, 2010 for Orders, Admission and Hearing including bunch cases.12
01/07/14 Fresh and listed :
i) Miscellaneous writs relating to education and society matters.
ii) Applications upto the stage of winding up proceedings under Section 439 of the Companies Act, 1956;
iii) Testamentary cases;
iv) Matters under all labour law enactments; for orders, admission and hearing including bunch cases.
A perusal thereof would not leave any room for doubt that His Lordship was sitting in different jurisdictions as per the roster details assigned, yet habeas corpus petition no.594 of 2012 continued to be heard and orders had been passed for listing the matter for further hearing, for further orders and before the same bench time and again that have been noted in our order dated 14.10.2014. The learned single judge had no roster of a division bench habeas corpus petition.
The said facts are undisputed, and not only this, the matter could not remain tied-up or part heard at least after the administrative orders of Hon'ble the Chief Justice dated 16.12.2013 as continued vide order dated 1.4.2014 and 29.5.2014 that are to the following effect :-
ORDER No pending case, civil or criminal, shall be treated as part heard or tied up in a Court after the commencement of a new roster. All pending cases shall be listed before the appropriate Bench dealing with such matters in accordance with the fresh roster, unless so ordered by the Chief Justice in a specific case hereinafter.
CHIEF JUSTICE 16.12.2013 ORDER The administrative order dated 16.12.2013 regarding part heard and tied up cases will continue in operation.
CHIEF JUSTICE 1.4.2014 ORDER The administrative order dated 16.12.2013 regarding part heard and tied up cases will continue in operation with the commencement of new roster.
CHIEF JUSTICE 29.5.2014 Thus, the assignment of new rosters and the aforesaid administrative orders of Hon'ble the Chief Justice releasing all tied-up and part heard matters were in existence when the learned Single Judge continued to hear the proceedings of Writ Petition No.594 of 2012 without any assignment. The hearing continued before the same Judge inspite of the aforesaid orders of Hon'ble the Chief Justice which was a clear violation of the roster prescribed by Hon'ble the Chief Justice. The whole proceedings before the learned single judge are unsustainable in view of the decisions that have been cited at the bar and noted hereinabove.
Consequently, the learned single judge could not have assumed jurisdiction contrary to the 1952 Rules or the roster to pass any orders in respect of individual detenues after the matter of the original petitioner Smt. Chawali had already been decided by him, or even before that as noted hereinabove. Thus, questions no.1 and 3 are answered in the negative.
It is here that the learned Additional Advocate General Sri Zilani and Sri Mathur contend that once the learned Single Judge has passed the orders, and if the same are held to be a nullity or treated to be void, the same would require the consideration of the issue as to whether the learned Single Judge was inherently lacking in jurisdiction to deal with the matter which was so patent so as to invalidate the proceeding, or whether the jurisdiction exercised was lacking latently and not patently, as a result whereof the action taken and orders passed can be saved. It is thus the legal sustainability of the orders which are sought to be canvassed at the bar to be protected in the larger interest of the detenues instead of treating them to be void and without authority in law.
Sri Zilani has submitted that there is a distinction between a total and complete lack of jurisdiction and a lack of authority on account of procedural violation. He has relied on the following five decisions to substantiate his submissions :-
1. 2013 (5) SCC 1 (State of Punjab Vs. Salil Sabhlok) 2013 (2) SCC 398 (Kishore Samrite Vs. State) 2011 (14) SCC 770 (State of Punjab Vs. Davinder Pal Singh Bhullar)
2. 2007 (25) LCD 975 (SC) (Hasham Abbas Sayyad & others Vs. Usman Abbas Sayyad & others)
3. 2005 (7) SCC 791 (Harshad Chimal Lal Modi Vs. DLF Universal Ltd. and another)
4. 1990 (1) SCC 193 (Sushil Kumar Mehta Vs. Gobind Ram Bohra)
5. 1981 (3) SCC 132 (Gokraju Rangaraju Vs. State of A.P.) According to him there may be orders that may be void but in the instant case he contends that the orders passed by the learned Single Judge should not be treated as such or else the detenues may have to face the consequences of being again placed behind bars which can be prevented, as the High Court has powers to reach whereever injustice is found. He then relies on the following three decisions :-
1. 2013 (99) ALR 76, (Banglore Development Authority Vs. M/s. Vijaya Leasing Ltd.)
2. 1999 (2) SCC 60 (Mewa Singh Vs. Shiromani Gurudwara Prabandhak Committee)
3. AIR 1966 SC 81 (Dwarika Nath Vs. Income Tax Officer) He further contends that extraordinary situations demand extraordinary remedies for which he relies on the decision of the Apex Court in the case of Jaspal Singh Vs. State of Punjab 2012 (1) SCC Page 10 (para 50). He further contends that technical objections cannot impede the entertaining of a habeas corpus petition which involves the life and liberty of the citizens and he relies on the following four decisions to that effect :-
1. AIR 2014 SC 2090 (Cherukuri Mani Vs. Chief Secretary, Govt. of A.P.)
2. 2012 (2) JIC 189 (SC) (Ummu Sabeena Vs. State of Kerala)
3. 2005 (10) SCC 97 (Union of India Vs. Chhaya Ghoshal)
4. 1987 (4) SCC 58 (Mohinnudin @ Moin Master Vs. D.M. Beed) Sri Jaideep Narain Mathur, learned amicus curiae has dedicated his written submission to this effect and paragraphs 6 to 36 of the same narrate that, even though the jurisdiction as per the High Court Rules and roster was not with the learned Single Judge, yet the learned Single Judge was a Judge of the High Court and the High Court has authority to pass orders in a habeas corpus petition. Hence the orders passed should be saved by taking recourse to the doctrine of De-facto. He has however tried to distinguish one of the judgments in this regard, namely, that of Pandurang Vs. State of Maharastra, AIR 1987 SC Page 535 on the ground that the case was not dealing with a habeas corpus matter under Article 226 and arose out of a criminal appeal that had been filed under the Code of Criminal Procedure read with the Bombay High Court Rules. He contends that the Apex Court in the said decision found that there was inherent lack of jurisdiction as the rights of persons to the dispute were being adversely affected and, therefore, the said authority in the case of Pandurang (supra) was not an authority on the issue of an order lacking in patent jurisdiction or latent lack of jurisdiction. He submits that all rules or procedure are the handmaid of justice and procedural law cannot in any way take away the power of the Court to exercise authority, and accordingly in the absence of a patent lack of jurisdiction, the orders passed by the learned Single Judge should be upheld.
I am unable to subscribe to the aforesaid proposition for the simple reason that if such an interpretation is given with regard to the jurisdiction of a learned Single Judge to entertain a petition, the entire foundation of the High Court would run haywire and make the proceedings of the High Court inchoate. The judicial discipline of Judges exercising powers within their prescribed jurisdiction cannot be allowed to be digressed or else a High Court, particularly a big High Court having a strength of 160 Judges, would fall in utter confusion which would ultimately be lacking in faith, that would be against public interest.
The learned single judge, not having the authority to entertain and neither having the roster, was inherently incompetent to pass the orders on the petition. It is here that the principle "Form becomes substance" is attracted. The court of the learned single judge for a division bench matter was improperly constituted and thus suffered from an inherent incompetence to hear and decide the case. This was an error arising out of absence of jurisdiction and not any error in the orders passed within the jurisdiction of the learned single judge. The dispute is not of an error in the application of law or in the orders passed, but of the jurisdiction of the learned single judge to enter upon adjudication in the matter.
There is a higher forum of a division bench created by the 1952 Rules to hear and decide a state detention habeas corpus petition. The learned single judge presides over a court that only enjoys the jurisdiction of a private detention habeas corpus matter. Thus the forum of a larger bench of two judges as against a learned single judge is not a minor difference and leads to a major defect of want of corum that alters jurisdiction altogether if the assigned function of a division bench is casually allowed to be taken over by a learned single judge. The division bench has exclusive authority and not partial jurisdiction in state detention matters. The exercise of authority in excess by the learned single judge is an outcome of lack of jurisdiction.
There was no extraordinary situation for an action to be taken without authority nor did it require any innovation. The case was erroneously reported by the office as a single judge matter and wrongly placed by the registry before a learned single judge. An error so admitted on record does create an embarrassing situation and has thus created this extraordinary reference which requires a remedy but even if the cause was one that required an immediate attention, then too the matter could have been placed before the appropriate division bench. It is not the case that a division bench was not available to entertain the matter. Thus no extraordinary remedy was required to be administered even if the detentions were ultimately unlawful. The only requirement was to place the matter before the appropriate bench and nothing more, where the case could have been taken care of, and injustice if any could have been remedied.
The ratio of the decision of the division bench of this court in the case of Pandit Jagdish Narain Mishra (supra) is clearly attracted where para 12 to 14 state the legal position as under :-
"12. In this paragraph the Apex Court has clearly held that no Judge or Bench can assume jurisdiction in a case pending in the High Court unless the case is allotted to him or them by the Chief Justice. Strict adherence of this procedure is essential for maintaining judicial discipline and proper functioning of the Court. No departure from it can be permitted.
13. Recently, in another judgment the Apex Court has held in para 19 of Jasbir Singh v. State of Punjab, (2006) 8 SCC 294 that it is not within the competence of any Single or Division Bench of the High Court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice. The judgment (Per Balakrishnan,J. Prior to His Lordship becoming C.J.I.) specifically referred to the earlier judgment in State of Rajasthan v. Prakash Chandra (supra) and reiterated the legal position.
14. The law laid down in these judgments clearly establishes that the learned Single Judge could not have directed the Registry to continue the matter to be placed before him as the roster had been changed. Even if he was to say that the matter was part heard, in view of the law laid down by the Full Bench which is affirmed by the Apex court : such a direction or order would be in violation of the Rules of Court and, therefore, nullity. Any case at pre admission stage cannot be treated as part heard or tied up and such a direction contrary to the roster is not within the competence of any Single or Division Bench of the High Court as has also been held in the case of Jasbir Singh (supra)."
The learned single judge also transgressed propriety as he could not acquire a larger jurisdiction than what he was possessed of. We are not anxious to discover any imaginary wrong but we find it necessary to quote "It is good to be adventurous but it is advisable to practice the art of the possible." Judicial discipline is one of the tenets of our system on which hinges the faith of people. The maxim "The king can do no wrong" is a presumption that has to be respected for which the sovereign in return has to infuse confidence to ensure a secure feeling amongst the governed. Likewise members of the higher judiciary have to exercise abstinence and restraint to infuse the same level of confidence and security while dispensing justice.
It may be re-emphasised that the jurisdiction to exercise a power, and the exercise of power are two different concepts. It is true that a Judge of the High Court derives his authority to issue a writ under Article 226 or 227 of the Constitution of India, but the jurisdiction to sit and decide a particular subject matter is governed by the provisions of Article 225 of the Constitution of India and rules framed thereunder. This distinction has to be noted in mind or else there would be an overlapping and an inconsistency resulting in confusion and chaos. It is in order to discipline and rather regulate proceedings that exclusive powers have been conferred on Hon'ble the Chief Justice and rules have been framed to that effect.
Needless to say that there are statutory rules conferring jurisdiction on a Single Judge and Division Benches under the Code of Criminal Procedure and the Civil Procedure Code as well as in other statutes relating to the power of the High Court to decide issues and references. Can all this be negated and an interpretation given in the garb of saving an order which is entirely without authority?
The obvious answer on a logical reason and on applying the golden rules of interpretation would be in the negative, inasmuch as, no direction can be issued to disobey the mandate of law. If the law and the procedure prescribed require the performance of a particular exercise in a particular manner then, in our opinion, such prescription has to be followed and violation thereof is clearly prohibited. To allow something to be done in the name of justice may be a principle which has to be followed, but the same cannot be a principle that can be followed by an authority not empowered to do so.
The word 'latent' means though existing but not yet manifest or developed. It is something which is capable of development or other activity and is dormant until excited. It is hidden and invisible but is potential. The word 'patent' means that which is evident and obvious plainly and clearly. The word 'inherent' means in the nature of things as a necessary part. It means belonging to as an attribute or quality that is vested. In the instant case the learned single judge was not capable of exercising the jurisdiction at all nor could it be conferred on him as it would be against rules. Even assuming that it was a cause which required the remedy of an injustice, the same could have been done by the competent court having jurisdiction.
The lack of authority, therefore, is not latent but clearly established for the reasons that have been given hereinabove. The answers to the other questions also lead to the conclusion that the orders passed by the learned Single Judge would be completely without authority and could not be saved on the ground of the High Court having jurisdiction in the matter. The assumption of authority to decide a division bench matter by a learned single judge also suffers from gross impropriety as well.
I may also point out that a presumption can be raised with regard to a regular judicial act being performed and its validity in terms of Section 114(e) of the Indian Evidence Act, 1872. This argument in a similar matter had been raised before a learned single judge of this court contending that the learned judge who had entertained the matter had authority to decide a bail application. The said argument was repelled in the said decision of C.B.I., New Delhi Vs. Dinesh Kumar Singh, Crl. Misc. Bail Cancellation No.216 of 2014, decided on 15.7.2014 in the following manner :-
"It is at this juncture that the argument advanced by Sri Chaturvedi for drawing a presumption of a regular judicial act as per provisions of Section 114 illustrations (e) has to be considered. To my mind, the argument which has been advanced by Sri Chaturvedi misses the point that the presumption has to be about the regular performance of the act of the Judge. His argument that it is just a matter or procedure and therefore the said illustration is attracted cannot be applied on the facts of the present case the reason being it was not a mere matter of procedure but a matter of conferring the jurisdiction on the learned Single Judge to hear the bail.
To my mind, the presumption is to be drawn in matters of procedure and not actual performing of the act where the issue goes to the root of validity of the order. It is not a routine performance that is under question. It is the very competence or the authority of the learned Judge performing that act which is in question. It is for this reason that the aforesaid illustration presumes the performance of a regular exercise of power. If the regularity itself is in question then the presumption of the said act touching the irregularity is not covered by the said illustration. There cannot be any presumption in law about an official act being regularly performed when the act itself on the face of it was unauthorised. The said illustration, therefore, does not come to the aid of the accused where there is an inherent lack of authority to proceed with a matter. In the light of the aforesaid conclusion, the observations of the division bench extracted hereinabove squarely apply on the facts of the present case as the Chief Justice had been pleased to nominate only one case and not the other two bail applications.
It would be appropriate to refer to the explanation added to the aforesaid illustrations under Section 114 which begins with the sentence "but the court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it - ........ as to illustration (e) - a judicial act, the regularity of which is in question, was performed under exceptional circumstance."
There is no material placed on behalf of the accused to indicate that such act was performed in an exceptional circumstance. Sri Chaturvedi could not point out as to what was that exceptional circumstance under which the learned Judge had no option but to entertain and grant bail in the other two applications which were not nominated to her.
To the contrary, the presumption is of the facts as exist when the order was passed in respect of nomination, which was admittedly and undoubtedly only in one bail application, that is bail application no. 4314 of 2013. The other two bail applications 4310 of 2013 and 8237 of 2013 were not nominated to the learned Judge at all.
Sri Chaturvedi submits that when there was a judicial order connecting all the three bail applications by the regular court earlier, then there is every reason to believe that when the nomination order was passed in one bail application, the learned Single Judge was obviously proceeding regularly to here all three matters to which no objections had been raised by the learned counsel for the CBI at that stage. So far as the issue of objection by the CBI counsel is concerned, it is by now settled that jurisdiction to hear a matter cannot be conferred either by tacit or by implicit consent or by omission to raise an objection to the jurisdictional issue.
Sri Khanna is right that an issue of jurisdiction can be raised if it goes to the root of the matter and in the instant case as per the law extracted hereinabove, to my mind, it was the duty of the court itself to have determined as to whether the other two bail applications were competent before the court or not. In the event of any doubt or confusion, clarifications could be had from Hon'ble the Chief Justice who alone had the authority to nominate the other two cases. Once the nomination was only in one case, then propriety demanded that the learned counsel as well as the court ought to have taken notice of this fact and made a request to the Hon'ble Chief Justice for passing appropriate orders. There cannot be a facilitating argument accepted that the Registry was conscious of such nomination and had rightly listed the case before the learned Judge. It would be appropriate to opine that the Registry or the office does not perform a delegated function of the Chief Justice for sending matters to a court except under the orders of the Chief Justice. Not only this, when an order nominating a particular case is passed then the Registry is obliged only to list and place such a case with a report to that effect. Any lack of clarity should therefore be noticed and brought to the notice of Hon'ble the Chief Justice for exercise of powers under Chapter V of the Allahabad High Court Rules, 1952. Neither the Registry nor the parties to the litigation can take any advantage of any such confusion."
The said judgment became subject matter of challenge in Special Leave Petition No.6036 of 2014 before the Apex Court, Dinesh Kumar Singh Vs. C.B.I. The appellant withdrew the said special leave petition with liberty to file a fresh bail application before the High Court which was permitted observing that the fresh bail shall be decided on merits for which orders were passed finally on 15.10.2014. The reasoning of the High Court as quoted hereinabove while cancelling the bail was not interfered with.
The distinction which is sought to be drawn on the basis of the decisions that have been cited at the bar cannot be accepted inasmuch as the said arguments do not appeal to reason and the ratio of the said decisions do not directly touch upon the issue raised in the present matter.
The arguments of Sri Mathur, learned amicus curiae relying on the observations made by the Apex Court in the case of Kishore Samrite (paragraphs 29 and 30 thereof) has urged that the orders passed by the learned single judge did not suffer from patent lack of jurisdiction and a violation of procedure does not always result in validation of a judicial action. He further submits that the assumption of such an authority to pass an order may not necessarily result in lack of inherent jurisdiction. We have carefully gone through paragraphs 29 and 30 of the said decision and we find that the observations of the Supreme Court were made in relation to a transfer of a petition by a division bench before itself that was necessarily cognizable by a single judge. It is here that the Apex Court made an observation that a transfer by itself may not necessarily result in lack of inherent jurisdiction as it may be an administrative lapse, and would therefore not render the writ petition or court of competent jurisdiction as lacking inherent jurisdiction. We are also of the opinion that the High Court does not lack inherent jurisdiction so as to render any order being invalid ab initio in a habeas corpus writ petition. However, in the instant case the order passed in the case of Sameeha Khatoon setting her free was in violation of principles of natural justice without putting her father to notice on the assumption that she was major. Thus one of the necessary parties had not participated and had not been given any opportunity to object or protest. This fact by itself distinguishes the case of Kishore Samrite where the parties had voluntarily participated without any objection or protest. Secondly, here the order of the learned single judge has been challenged by way of a special appeal by Masihuddin, father of Sameeha Khatoon. Thirdly, the High Court Rules of 1952 have been clearly violated and the learned single judge was coram non judice as he could not have heard a division bench matter. Thus this was not a case of mere transfer to a bench, rather a totally unauthorised and wrong assumption of authority by the learned single judge to decide the matter which was contrary to the 1952 Rules, in violation of the roster prescribed by the Chief Justice and additionally suffered from impropriety. Consequently, the observations made by the Apex Court in paragraphs 29 and 30 of Kishore Samrite's case does not apply squarely on the facts of the present case. It is for this reason that the Apex Court in para 30 of the aforesaid judgment has observed that the observations made therein were subject to and dependent upon the facts and circumstances of a given case. In our opinion, the facts and circumstances of the present case clearly indicate complete lack of authority in the learned single judge to hear the matter.
The latest decision of the Apex Court in the case of Kishore Samrite Vs. State of U.P. and others (2013) 2 SCC Page 398, was a case, filed by an Ex-MLA of Madhya Pradesh alleging that he was a next friend of three persons arrayed in the writ petition, with a prayer to produce the corpus of three persons and set them free. The allegations were of private detention against the private respondent, one of whom was Mr. Rahul Gandhi. The allegation was of commission of an offence against one of the females having been illegally detained in private custody.
The Allahabad High Court Rules, as presently involved, was also in question in the said case which provides that a matter of private detention in a habeas corpus petition would be cognizable by a learned Single Judge. In that case a division bench had summoned the records of a private detention habeas corpus petition and had proceeded to decide the matter, and having found the allegations to be incorrect had dismissed the petition with costs. The question that arose was that if the matter was of private detention, could the division bench have heard the matter in view of the express bar and categorization assigning the jurisdiction to a bench of a learned Single Judge under the rules. While answering the said issue raised, the Apex Court held as under :-
"23. From the above narrated facts it is clear that a petition for habeas corpus (Writ Petition No. 111/2011) had been filed by the present appellant while referring to the news on the website in relation to the incident dated 3rd December, 2006 (in paragraphs 3 and 4) to the effect that since the petitioners, because of their illegal detention by private opposite party no.6 are incapacitated to file the instant writ petition and also that those petitioners were in illegal detention of the private opposite party no.6 and they have not been seen since 4th January, 2007. This writ petition was treated as private habeas corpus and was listed before a Single Judge of the Allahabad High Court.
24. Rule 1 of Chapter XXI of the Allahabad High Court Rules provided that an application under Article 226 of the Constitution for a writ in the nature of habeas corpus, except against private custody, if not sent by post or telegram, shall be made to the Division Bench appointed to receive applications or on any day on which no such Bench is sitting, to the Judge appointed to receive applications in civil matters. In the latter case, the Judge shall direct that the application be laid before a Division Bench for orders. In terms of proviso to this Rule, it is provided that an application under Article 226 of the Constitution in the nature of habeas corpus directed against private custody shall be made to the Single Judge appointed by the Chief Justice to receive such an application. The clear analysis of the above Rule shows that habeas corpus against a private custody has to be placed before a Single Judge while in the case of custody other than private custody, the matter has to be placed before a Division Bench. It appears that on the strength of this Rule, Writ Petition No. 111/2011 was listed before the Single Judge of Allahabad High Court."
A perusal thereof leaves no room for doubt that a habeas corpus petition against a private custody was to be placed before a Single Judge and not before the division bench while in the case of custody other than a private custody a habeas corpus petition has to be placed before the division bench.
In the present case the aforesaid rule has been violated as held hereinabove and the conclusions drawn are clearly supported by the aforesaid dictum of the Apex Court.
Issue No.B The issue raised herein involves the answer of two questions reproduced hereinunder :-
"Question No.2- Whether the learned Single Judge after the orders were passed on 21.2.2013 releasing Smt. Chawali, the sole petitioner in the writ petition, could have still kept the matter pending before him for monitoring and further consideration of the release of other detenues as has been ordered by the learned Single Judge in Writ Petition No.594 of 2012 ?
Question No.4- Whether the orders passed by the learned Single Judge after the final disposal of the case of the sole petitioner are legally sustainable and whether the learned Single Judge could have proceeded with the matter like a public interest litigation ?"
Answer to the aforesaid two questions would rest on the answer already given by us to questions no.1 and 3 hereinabove. It is undisputed that the release order of Smt. Chawali was finally passed on 21.2.2013. Thus, no further matter remained pending before the learned Single Judge except for the informations that had been called for in relation to other detenues. The question is whether such detenues in the protection home that were also State detentions, could have been the subject matter of suo motu monitoring followed by an order of release by the learned Single Judge in Writ Petition No.594 of 2012.
To me it appears that the learned Single Judge after having called for the information in the background as noted in our order dated 14.10.2014 proceeded to release one detenue after the other as if the matter was proceeding in larger public interest. The learned single judge in my opinion had become functus officio even otherwise after the final relief had been granted to Smt. Chawli and no other relief survived to be considered. Any further action undertaken was clearly beyond the petition, purportedly in public interest, even though there was nothing in the petition to assume such authority. This inference drawn by me is confirmed as I find that when the matter was taken up in Writ Petition No.299 of 2014 on 18.9.2014, the Division Bench has expressed a clear opinion that the said Habeas Corpus (594 of 2012) appears to be in the nature of a public interest litigation. The Division Bench then directed the office to convert the same and renumber it as a PIL and place it before the said bench.
It is here that it would be appropriate to put on record that a public interest litigation, even if is brought to the notice of the learned Single Judge, he does not have the jurisdiction to entertain the same or pass any orders thereon, inasmuch as, all public interest litigations are to be dealt by a bench presided over by Hon'ble the Chief Justice or by any other bench to be nominated in this regard. The learned Single Judge who took upon himself the responsibility of ameliorating conditions of detenues, which according to him were unlawful could not have done so and the only course open to the learned Single Judge was to have placed the matter before Hon'ble the Chief Justice or before the Hon'ble Senior Judge at Lucknow for passing orders on the administrative side for nomination for being dealt with by the appropriate division bench. Instead the learned Single Judge in violation of the roster proceeded with the matter himself and monitored the entire case, passing orders of release of detenues.
It may also observe that a public interest litigation has to be entertained on the guidelines that have been framed by the Supreme Court in the case of State of Uttarakhand Vs. Balwant Singh Chaufal & others, 2010 AIR SCW 1029 in order to avoid any criticism of a proxy or a motivated litigation and drafted in accordance with Rule 3A of Chapter 22 of the High Court Rules, 1952. I do not wish to say that this matter may not have been an issue of public interest, but at the same time I do not find any pleading by any party or any ingredients available in the writ petition filed by Smt. Chawali, namely, the record of Writ Petition No.594 of 2014, to gather any element that would impel the court to treat the petition as it stood drafted as a public interest litigation. To the contrary, it is by virtue of the reports received under the orders of the learned Single Judge that the whole process appears to have been converted into a permanent counter of release of detenues, may be in the name of public interest. This platform that was generated and the assumption of jurisdiction was on account of the passing of the orders by the learned Single Judge and not on account of any matter being placed before the appropriate bench arising out of public interest.
Then arises the question of a private dispute being converted into a public interest. Here the learned counsel for the State as well as Sri Mathur have urged that the power is there with the Court to do so and they have relied on the following five decisions to that effect :-
1. 2003 (7) SCC 546 (Guruvayoor Devaswom Managing Committee & another Vs. C.K. Rajan & others).
2. 2005 (5) SCC 598 (Ashok Lanka & another Vs. Rishi Dixit)
3. 2007 (25) LCD 565 (Rajendra Vs. Addl. Commissioner Devi Patan Mandal & others)
4. 2007 (25) LCD 646 (Chandrika Prasad Nishad Vs. State of U.P. & others)
5. 2008 (12) SCC 541 (Indian Bank Vs. Godhra Cooperative Credit Society Ltd. & another) There is no dispute that the power of the Court is wide enough to exercise such jurisdiction provided the Bench dealing with such a matter has been assigned the roster to do so. It is not the question of the exercise of the power but it is the issue of the learned Single Judge having jurisdiction to exercise such power. Once the writ petition itself had been disposed of releasing the detenue Smt. Chawali, and if the learned Single Judge felt that certain matters of larger public interest did require attention, then the learned Single Judge could have or ought to have sent the matter before Hon'ble the Chief Justice/Senior Judge at Lucknow for dealing with the said matter appropriately by the concerned bench. The learned Single Judge, in my considered opinion, after having finally disposed of the matter, which itself was an exercise without jurisdiction, could not have assumed the mantle of PIL jurisdiction to undertake a public interest exercise himself. The roster of public interest litigation was not with the learned Single Judge and to the contrary was assigned to a division bench.
Issue No.C This issue raises the following question:-
"Question No.5- Whether such a Habeas Corpus petition can be stated to be criminal in nature, and if so, then whether a special appeal would be maintainable against an order passed by a learned Single Judge in such a petition in terms of Chapter VIII Rule 5 ?"
The aforesaid question need not detain the court inasmuch as the answer to the arguments advanced by Sri Tripathi and Sri Anu Pratap Singh and Sri Ojha lies in the decisions that have already been cited before this Court and are supported by other decisions which are to the following effect that have been relied upon by Sri Zilani :-
33. 2012 (3) AWC 3239 (Riya Singh Vs. State of U.P.
34. 1980 (Suppl) SCC 696 (Union of India Vs. Inderjeet Baruva)
35. AIR 1965 SC 1818 (S.A.L. Narain Row Vs. Ishwar Lal Bhagwan Das) Sri Mathur also in his written submissions in paragraph nos.37 to 47 has explained the said position and I entirely agree with the same except in relation to a state detention matter which would itself be entertainable by a division bench. A special appeal would be maintainable against the order of a learned single judge in a matter of private detention habeas corpus petition under Chapter XXI of the 1952 Rules. The order of the learned Single Judge deciding a habeas corpus petition cannot be said to be in the exercise of a criminal jurisdiction. The said question is, therefore, partly answered in the negative and while approving the ratio of Riya Singh's (supra) I hold that a special appeal is maintainable against the order of the learned Single Judge deciding a private detention habeas corpus petition under Article 226 of the Constitution of India.
Issue No.D The following two questions on this issue relate to essentially a multiplicity of the proceedings and maintainability of Writ Petition No.299 of 2014.
"Question No.6- Whether a co-ordinate bench could have entertained a fresh writ petition for the same cause of action inspite of an order having been passed by a learned Single Judge in the same matter and a special appeal was pending ?
Question No.10- Whether fresh Writ Petition No.299 of 2014 was maintainable and could have been made the basis for summoning the records of all other petitions for consideration by Hon'ble Co-ordinate Bench ?"
The facts as disclosed indicate that Writ Petition No.594 of 2014 was being monitored in which a detenue Shameeha Khatoon came to be released. Her father Masihuddin filed a special appeal being Special Appeal (Defective) No.32 of 2014 against the order of such release alleging that no petition had been filed and he being the father was not even apprised of any such proceedings and without putting him to notice exparte orders were passed to release Sameeha Khatoon that too even in favour of her alleged father-in-law, as the boy whom she alleged to have married, was already behind bars at that time. The learned Single Judge had already released Sameeha Khatoon and she was not in custody. To the contrary, when the special appeal was heard on 12.9.2014 an order was passed sending her back in custody. In this background Sameeha Khatoon was again sent back to the Protection Home and, therefore, she was not under unlawful custody thereafter.
It appears that on account of such issues having been raised Sameeha Khatoon was advised to get a fresh writ petition filed before the Division Bench which is Writ Petition No.299 of 2014. This was clearly done in apprehension that if the Division Bench in the special appeal comes to the conclusion that the proceedings before the learned Single Judge were without jurisdiction, and the order passed was invalid, then she would require an order of release from this very court and the remedy under Chapter XXI Rule 1 of the 1952 Rules was to file a fresh petition before the Division Bench.
The question is if the special appeal arising out of the order of the learned Single Judge was pending before the Division Bench, was it necessary that a separate petition should have been filed and the Division Bench on 18.9.2014 ought to have entertained the same and summoned the records of Writ Petition (H/C) No.594 of 2012 for converting it into a PIL and also Special Appeal (Defective) No.32 of 2014. The argument advanced is that such a course was the only course available for release as the appeal filed was against the release.
I am of the opinion that this step should have been taken only after the decision in the appeal and not prior to that. Writ Petition No.299 of 2014 was a petition filed in apprehension. If the order of the learned Single Judge releasing Sameeha Khatoon does not lack in jurisdiction or authority then the special appeal might be maintainable as that could be a possible statutory remedy under the Rules. The issue of her release or custody was subject matter of consideration by the Division Bench hearing the special appeal. In the background the aforesaid filing of an apprehensive writ petition, when the matter was being heard by a co-ordinate division bench in appeal arising out of the same subject matter of release, was therefore, not an appropriate process adopted, and as a matter of fact was a clear device to seek a relief collaterally on the presumption that the release order passed by the learned Single Judge may not be sustainable in law.
There is yet another peculiarity, namely, Sameeha Khatoon had been sent back to the Protection Home under the orders dated 12.9.2014 of the Division Bench hearing the special appeal. A separate writ petition for release against the order of detention passed by a Division Bench of this court would obviously not be maintainable, as a writ petition would not lie before a co-ordinate bench to quash the order of another Division Bench in the same case and on the same subject matter. The passing of any order in the subsequent Writ Petition No.299 of 2014 would obviously be for release that would run counter to the order passed on 12.9.2014 by the Special Appellate Bench even though at an interim stage. A writ petition, therefore, for this purpose would not be maintainable. The Division Bench, therefore, ought not to have entertained a fresh writ petition at this stage and should have allowed the matter to await orders in the special appeal. The coordinate division bench neither had the roster of special appeals nor it could have sat over the proceedings of another division bench without proper assignment.
It may also be observed that if a state detention matter was not entertainable by a learned single judge then in that event a special appeal arising out of the same would also not be maintainable inasmuch as a special appeal would be maintainable only when it is a matter of a habeas corpus petition arising out of private detention. However, the question as to whether the special appeal would be maintainable or not could have been decided by the bench that had the roster of special appeals. This jurisdiction to decide the special appeal itself by another division bench was absent as the other division bench did not have that roster. Apart from this if the special appeal was not maintainable as this was clearly a matter of state detention, then in that event, the special appeal could not have been declared to be infructuous and ought to have been adjudicated one way or the other. The bench which declared the special appeal to be infructuous vide order dated 19.9.2014 appears to have completely overlooked this aspect of the matter and by one stroke of an order issued directions that has resulted in this mayhem. I am reminded of the approach to exercise of powers by a court and judges in such a situation referred to in paras 33 to 41 of a division bench pronouncement in the case of Ghisai Ram Krishak Vidyalaya Samiti Vs. State, 2014 (10) ADJ 211. In my opinion it is only after any declaration about the maintainability of the proceedings that a fresh division bench writ petition could have been entertained after recording findings to that effect.
The division bench which finally disposed of the matter did not make any such attempt presumably on account of the assumption that all the matters were maintainable before it. The division bench entertained the fresh writ petition no.299 of 2014 on 18.9.2014 and finally disposed it of on the very next day i.e. 19.9.2014 without adopting any procedure of issuance of notice either to the state or to the proper private parties including the father of the detenue whose Special Appeal was summarily dismissed as infructuous and passed an order of release clearly in violation of principles of natural justice and by the exercise of an authority in peculiar circumstances already noted above. All forums of judicial review for the father of the detenue Sameeha were blocked and finally shut out in this unique manner on the very next day of the filing of fresh Writ Petition No.299 of 2014. This procedure cannot have our approval for the reasons given hereinabove and hereinafter. The questions are answered accordingly.
Issue No.E "Question No.7- Whether the bench entertaining fresh Habeas Corpus petition for the same cause of action could have suo motu summoned the records of the special appeal, and the previous petition no.594 of 2012, and ordered for conversion of the same into a public interest litigation, without placing the same before either the Hon'ble Chief Justice or the Senior Judge at Lucknow ?
Question No.8- Whether the co-ordinate bench could without having the roster of special appeals proceeded to summon the records of the said appeal and pass orders thereon without any specific assignment of roster by Hon'ble the Chief Justice ?"
The Division Bench that was hearing Writ Petition 299 of 2014, by a judicial order dated 18.9.2014 had summoned the records of the special appeal as well, and that of the learned Single Judge, without any roster having assigned to the said bench of either a special appeal or a learned Single Judge matter. There could have been a judicial order to connect the matters together, but for placing it before one particular bench there ought to have been an administrative order passed by Hon'ble the Chief Justice or by the Senior Judge, Lucknow, exercising such powers on the administrative side on that date under the 1952 Rules as extracted above.
On this issue Sri Mathur has vehemently urged that Hon'ble the Senior Judge was the same Judge who was presiding over the Division Bench of habeas corpus matter, and therefore sitting on the judicial side and being the Senior Judge on that date, the order dated 18.9.2014 is justified. He contends that what can be done on the administrative side by Hon'ble the Chief Justice or the Hon'ble Senior Judge can also be done on the judicial side as has been done in the present case. Assuming for the sake of arguments that the order connecting all the cases could have been passed, the issue is as to whether the administrative powers of Hon'ble the Chief Justice/Senior Judge could have been exercised by a Division Bench on the judicial side under Article 226 of the Constitution of India.
It is here that the constitutional authority under Article 225 and 226 has again to be understood distinctly. The administrative powers are exercised by the Hon'ble Chief Justice under the Rules for allocating jurisdictions to judges that clearly relate to Article 225 of the Constitution of India. The judicial powers to be exercised in a writ jurisdiction are conferred either under Article 226 or 227 of the Constitution of India. If the presumption as suggested by the learned counsel is accepted then the entire scheme of the constitution would be jeopardised and violated.
In the instant case the learned Judge presiding over the Division Bench was coincidentally the Hon'ble Senior Judge at Lucknow that had passed the order on 18.9.2014. The question is can such an order be said to be an administrative order of only the Chief Justice or the Senior Judge? The answer would be obviously no, inasmuch as, the order is a judicial order and not an administrative order. Any other judge apart from the Chief Justice or Hon'ble the Senior Judge cannot exercise this administrative power on the judicial side. Had it been an administrative order only signed by Hon'ble the Chief Justice or Hon'ble the Senior Judge, the same would have been in the exercise of the powers conferred under the 1952 Rules on the administrative side. It is not the place of sitting or the timing of the order but it is the actual order being passed and executed as per the Constitution and the 1952 Rules. It appears that the learned Senior Judge instead of passing an administrative order, pronounced a judicial order on the bench alongwith another Hon'ble Judge and signed by both Judges. In my opinion, this course cannot be supported in law. The Division Bench had no authority to pass an administrative order that can only be passed by the Chief Justice or Hon'ble the Senior Judge alone. At the best a request could have been made on the judicial side for nominating and connecting of the matters together which is usually done in the routine course of business and, thereafter, the matter is placed on the administrative side for passing on an appropriate order. In my opinion, these two foundations cannot be mixed up in a manner in which it has been done in the present case. Consequently, we are of the opinion that the Division Bench even though could have issued directions for connecting of the matters together but ought to have stopped there and should have allowed the Hon'ble Chief Justice or Hon'ble the Senior Judge to have passed orders on the administrative side thereafter. We do not accept the contention of Sri Mathur as suggested and urged before us.
Needless to re-emphasise that the aforesaid view finds clear support from the dictum of the Apex Court in the case of State of Rajasthan Vs. Prakash Chand (supra) where it has been clearly held in no uncertain terms that it is the Chief Justice alone who has the authority to pass orders for assigning cases and fixing the rosters. In the instant case no such powers were exercised either by the Hon'ble Chief Justice or by the Hon'ble Senior Judge on the administrative side. The file was never placed for any such orders nor was it obtained as required under the rules. It may be pointed out that Hon'ble the Senior Judge at Lucknow on the administrative side exercises the powers of Hon'ble the Chief Justice in his absence as per Rule 9 of Chapter V of the 1952 Rules which is obviously subject to any general or special orders of Hon'ble the Chief Justice. The same is the position with regard to the senior most judge sitting during vacations either at Allahabad or Lucknow as provided for under Rule 10 (2) of the said Rules.
It is further to be noted that the roster of the special appeal even on 19.9.2014 continued to be with a different bench. The roster had neither been altered not was there any administrative order withdrawing Special Appeal 32 of 2014, as such it was not appropriate on the part of the office to have not sent the file to the Bench that had the roster assigned to it. This was a lapse on the part of the office and which aspect was not even taken note of by the Division Bench which passed final orders on the special appeal, the roster whereof was not assigned to the said bench.
Coming to the issue of roster in the same case of Kishore Samrite (supra) the Apex Court has opined as under :-
"25. The roster and placing of cases before different Benches of the High Court is unquestionably the prerogative of the Chief Justice of that Court. In the High Courts, which have Principal and other Benches, there is a practice and as per rules, if framed, that the senior-most Judge at the Benches, other than the Principal Bench, is normally permitted to exercise powers of the Chief Justice, as may be delegated to the senior most Judge. In absence of the Chief Justice, the senior most Judge would pass directions in regard to the roster of Judges and listing of cases. Primarily, it is the exclusive prerogative of the Chief Justice and does not admit any ambiguity or doubt in this regard.
26. Usefully we can refer to some judgments of this Court where such position has been clearly stated by this Court. In the case of State of Rajasthan v. Prakash Chand & Ors., (1998) 1 SCC 1, a three- Judge Bench of this Court was dealing with the requirement of constitution of Benches, issuance of daily cause list and the powers of the Chief Justice in terms of the Rajasthan High Court Ordinance, 1949 read with Article 225 of the Constitution of India. The Court held as under: -
"10. A careful reading of the aforesaid provisions of the Ordinance and Rule 54 (supra) shows that the administrative control of the High Court vests in the Chief Justice of the High Court alone and that it is his prerogative to distribute business of the High Court both judicial and administrative. He alone, has the right and power to decide how the Benches of the High Court are to be constituted: which Judge is to sit alone and which cases he can and is required to hear as also as to which Judges shall constitute a Division Bench and what work those Benches shall do. In other words the Judges of the High Court can sit alone or in Division Benches and do such work only as may be allotted to them by an order of or in accordance with the directions of the Chief Justice. That necessarily means that it is not within the competence or domain of any Single or Division Bench of the Court to give any direction to the Registry in that behalf which will run contrary to the directions of the Chief Justice. Therefore in the scheme of things judicial discipline demands that in the event a Single Judge or a Division Bench considers that a particular case requires to be listed before it for valid reasons, it should direct the Registry to obtain appropriate orders from the Chief Justice. The puisne Judges are not expected to entertain any request from the advocates of the parties for listing of case which does not strictly fall within the determined roster. In such cases, it is appropriate to direct the counsel to make a mention before the Chief Justice and obtain appropriate orders. This is essential for smooth functioning of the Court. Though, on the judicial side the Chief Justice is only the 'first amongst the equals', on the administrative side in the matter of constitution of Benches and making of roster, he alone is vested with the necessary powers. That the power to make roster exclusively vests in the Chief Justice and that a daily cause list is to be prepared under the directions of the Chief Justice as is borne out from Rule 73, which reads thus:
'73. Daily Cause List.- The Registrar shall subject to such directions as the Chief Justice may give from time to time cause to be prepared for each day on which the Court sits, a list of cases which may be heard by the different Benches of the Court. The list shall also state the hour at which and the room in which each Bench shall sit. Such list shall be known as the Day's List.'
24................The correctness of the order of the Chief Justice could only be tested in judicial proceedings in a manner known to law. No Single Judge was competent to find fault with it."
27. In view of the above discussion, the Court amongst others, stated the following conclusions: -
"(1) That the administrative control of the High Court vests in the Chief Justice alone. On the judicial side, however, he is only the first amongst the equals.
(2) That the Chief Justice is the master of the roster. He alone has the prerogative to constitute benches of the court and allocate cases to the benches so constituted.
(3) That the puisne Judges can only do that work as is allotted to them by the Chief Justice or under his directions.
(4) That till any determination made by the Chief Justice lasts, no Judge who is to sit singly can sit in a Division Bench and no Division Bench can be split up by the Judges constituting the bench themselves and one or both the Judges constituting such bench sit singly and take up any other kind of judicial business not otherwise assigned to them by or under the directions of the Chief Justice."
The aforesaid ratio which also follows the decision in the case of Prakash Chand (supra) clearly holds that it is the Chief Justice alone on the administrative side who has the power and competence to give any direction to the Registry for placing a matter within the domain of a Single Judge or a division bench. A judicial order of a division bench cannot be a substitute of compliance of the aforesaid rule. The reason is simple, inasmuch as, if such a power is acknowledged on the judicial side then the same would be traced to Article 226 of the Constitution of India and would be a transgression on the administrative powers of the Chief Justice which flows from Article 225 of the Constitution of India and is regulated by the rules framed thereunder. This, therefore, also answers the argument advanced by Sri Mathur about orders that cannot be passed on the judicial side which have to be only done administratively that includes fixing of roster and nominations by the Chief Justice alone. In my considered opinion, the division bench presided over by the Senior Judge could not have passed orders on 18.9.2014 which was a judicial order signed by two Judges on the judicial side, may be presided over by the Senior Judge. This act of passing a judicial order cannot be equated with the passing of an administrative order by the Chief Justice alone on the administrative side in exercise of his exclusive powers conferred under the rules framed under Article 225 of the Constitution of India for defining the jurisdiction and sitting of Judges in the High Court.
The ratio of the decision quoted hereinabove also indicates that judicial discipline demands that in the event a Single Judge or a division bench considers that a particular case requires to be listed before it for valid reasons, it should direct the registry to obtain appropriate orders from the Chief Justice or as in the present case from the Senior Judge. Thus, the proper course could have been for the division bench that the matter ought to have been directed to be placed before the Senior Judge or the Chief Justice for obtaining appropriate orders and the Senior Judge himself while sitting in the division bench on the judicial side could not have passed a judicial order along with another Judge in the division bench to change the roster. This is necessary as the Chief Justice or the Senior Judge himself is required to act in his own administrative capacity alone, and not pass orders while sitting on the judicial side for assigning a bench. This is also necessary in order to protect the powers of the Chief Justice on the administrative side inasmuch as if the interpretation as suggested by Sri Mathur is given, then in that event the powers exercisable by any division bench on the judicial side under Article 226 of the Constitution cannot in any way be less than by the powers exercisable by a division bench presided over by Hon'ble the Chief Justice, inasmuch as all Judges on the judicial side are equal, and Hon'ble the Chief Justice is only the first amongst equals. Thus, the powers of a division bench, merely because it is presided over by Hon'ble the Chief Justice or the Senior Judge, cannot by virtue of the administrative authority vested, be superior on the judicial side while exercising powers under Article 226 of the Constitution. This in our opinion, is the only interpretation that should be given namely, that if a bench even if presided over by Hon'ble the Chief Justice or Senior Judge comes to the conclusion that a case should be assigned a particular roster, then in that event the matter has to be placed before Hon'ble the Chief Justice/Senior Judge for an administrative order to assign a roster if the bench otherwise does not have the jurisdiction to hear the matter.
To keep the rules straight and free from any capability of being misunderstood or misinterpreted, I would make it clear that an order which has to be passed by Hon'ble the Chief Justice/Senior Judge on the administrative side alone should not take the shape of a judicial order by a division bench under Article 226 of the Constitution or else the same would trench upon the administrative powers which have to be exercised by Hon'ble the Chief Justice/Senior Judge alone in his administrative capacity, the foundation whereof rests exclusively on Article 225 of the Constitution of India.
The same judgment in Kishore Samrite's case in paragraph 29 and 30 has explained the situation further which is extracted hereinunder :-
29.Judicial discipline and propriety are the two significant facets of administration of justice. Every court is obliged to adhere to these principles to ensure hierarchical discipline on the one hand and proper dispensation of justice on the other. Settled canons of law prescribe adherence to the rule of law with due regard to the prescribed procedures. Violation thereof may not always result in invalidation of the judicial action but normally it may cast a shadow of improper exercise of judicial discretion. Where extraordinary jurisdiction, like the writ jurisdiction, is very vast in its scope and magnitude, there it imposes a greater obligation upon the courts to observe due caution while exercising such powers. This is to ensure that the principles of natural justice are not violated and there is no occasion of impertinent exercise of judicial discretion.
30. In the present case there is no dispute to the fact that no order was passed by the Chief Justice of Allahabad High Court or even the senior-most Judge, administratively Incharge of the Lucknow Bench, transferring Writ Petition No. 111/2011 for hearing from a Single Judge before which it was pending, to the Division Bench of that Court. On basis of the allegations made in the Writ Petition No. 111/2011, that matter had been listed before the Single Judge. If this writ petition was improperly instituted before the Single Judge of the High Court then it was for the Registry of that Court or any of the contesting parties to that petition, to raise an objection in that behalf. The objection could relate to the maintainability and/or jurisdiction on the facts pleaded. If the Writ Petition No. 125 of 2011 was filed with a prayer for transfer of Writ Petition No. 111/2011 on the ground stated in the petition, this power fell within the exclusive domain of the Chief Justice or the Senior Judge Incharge for that purpose. It does not appear to be apt exercise of jurisdiction by the Division Bench to suo moto direct transfer of Writ Petition No. 111/2011 without leave of the Chief Justice of that Court as such action would ex facie amount to dealing with matters relating to constitution and roster of Benches. We have already cited various judgments of this Court where matters relating to the roster and constitution of the Benches fall within the exclusive domain of the Chief Justice of the concerned High Courts. Transfer of a petition may not necessarily result in lack of inherent jurisdiction. It may be an administrative lapse but normally would not render the Division Bench or Court of competent jurisdiction as lacking inherent jurisdiction and its orders being invalid ab initio. Such an order may necessarily not be vitiated in law, particularly when the parties participate in the proceedings without any objection and protest. This, however, always will depend on the facts and circumstances of a given case. In the present case, suffices it to note that transfer of Writ Petition No. 111/2011 by the Division Bench to its own Board was an order lacking administrative judicial propriety and from the record it also appears that adequate hearing had not been provided to the writ petitioners before dismissal of the Writ Petition No. 111 of 2011 by the Division Bench.
It has been held that the exercise of transfer of a petition has to be observed with due caution and the bench having suo motu issued directions without there being an administrative order of the Chief Justice/Senior Judge would be clearly in violation of the roster of benches. The transfer of such a petition according to the aforesaid judgment may not necessarily result in lack of inherent jurisdiction and may be an administrative lapse. The judgment or the order passed by such a bench may not be necessarily invalid ab initio or vitiated in law, but the Apex Court has said that this will depend on the facts and circumstances of a given case. In that case the Supreme Court clearly held that the order transferring the writ petition was an order lacking administrative judicial propriety. In paragraph 60 of the judgment while quoting another decision the apex court has again held that the transfer of the writ petition was not in consonance with the accepted canons of judicial and administrative propriety. Accordingly, the judgment of the High Court was found to be unsustainable on that count and the judgment was modified accordingly even though the exemplary cost which had been imposed by the High Court was substituted by a sum of Rs.5 lac only. The crux of the judgment, therefore, clearly was that the consequences of an order so passed may be scrutinised depending on the facts and circumstances of a given case, but on the issue of propriety and exercise of administrative power, the Apex Court clearly came to the conclusion that it is not within the competence of any single or division bench on the judicial side to direct the registry list a case before it contrary to the directions of Hon'ble the Chief Justice/Senior Judge fixing a roster.
In the instant case it is admitted that there is no administrative order passed by either the Senior Judge or Hon'ble the Chief Justice appropriating and assigning either the Special Appeal No.32 of 2014 or the Single Judge Habeas Corpus Petition No.594 of 2012 to the bench that finally disposed of the said matter along with Writ Petition No.299 on 19.9.2014.
Coming to the issue of conversion of the case into a PIL and hearing the same along with the Special Appeal and Writ Petition 299 of 2014 is concerned, the same judgment in the case of Kishore Samrite (supra) has ruled as under :-
28. Similarly, in the case of State of Uttar Pradesh & Ors. v. Neeraj Choubey and Ors. (2010) 10 SCC 320, the Court had directed appearance of certain persons in the matter of selection to the post of Assistant Professor and treated the matter as a writ petition in the nature of Public Interest Litigation. The Court, while passing widespread orders, in paragraph 10 of the judgment held as under: -
"10. In case an application is filed and the Bench comes to the conclusion that it involves some issues relating to public interest, the Bench may not entertain it as a public interest litigation but the court has its option to convert it into a public interest litigation and ask the Registry to place it before a Bench which has jurisdiction to entertain the PIL as per the Rules, guidelines or by the roster fixed by the Chief Justice but the Bench cannot convert itself into a PIL and proceed with the matter itself."
It is thus clear that if the bench found the matter to be of public interest then such orders had to be obtained by the registry passed on the administrative side. If the argument of Sri Mathur is accepted then in that event all powers on the administrative side under Article 225 of the Constitution of India would become necessarily and impliedly available to the Chief Justice or the Senior Judge even while passing judicial orders under Article 226 or 227 of the Constitution of India. This, in my opinion, is not within the scheme of the Constitution nor is it acceptable in view of the reasons given by us hereinabove. The powers under Article 225 to decide the jurisdiction of the sitting of Judges is a different exercise of power then that of judicial power conferred under Article 226 of the Constitution on the judicial side.
At the same time, the judgment in the case of Pandurang Vs. State of Maharastra, AIR 1987 Supreme Court Page 537, cannot be overlooked.
There is yet another factor which deserves notice, namely, whenever there is a matter of private detention then the judgment of a learned Single Judge in a habeas corpus petition is subject to a special appeal under Chapter VIII Rule 5 and if this jurisdiction is usurped by a division bench, then a person would be loosing his right of appeal which is statutorily available under the High Court Rules. Sri Mathur has invited the attention of the Court to a division bench judgment of the Punjab High Court reported in AIR 1952 Punjab Page 70 Shayam Krishen Vs. State of Punjab and others. Paragraphs 2 and 3 of the said judgment are extracted hereinunder :-
"2. At the outset a point raised by the learned Advocate-General, which arises in all the cases regarding the Jurisdiction of this Court to entertain petitions for the writs mentioned in Article 226, requires to be dealt with. The objection of the learned Advocate-General is an ingenious one and, as will be seen, has found some support in a decided case, but in spite of this it appears to me to be without any force, and to be quite opposed to what appears to be the quite clear and unambiguous wording of Article 226, Clause (1) of which reads:
"Notwithstanding anything in Article 32, every High Court shall have power, throughout the territories in relation to which it exercises jurisdiction, to Issue to any person or authority, including in appropriate cases any Government, within these territories directions, orders or writs including writs in the nature of 'habeas corpus' 'mandamus,' prohibition, 'quo warranto' and certiorari', or any of them, for the enforcement of any of the rights conferred by Part III and or any other purpose."
Article 32 reads:
Part III -- Fundamental Rights) "(1) The right to move the Supreme Court by appropriate proceedings for the enforcement of the rights conferred by this Part is guaranteed.
(2) The Supreme Court shall have power to issue directions or orders or writs including writs in the nature of 'habeas corpus,' 'mandamus', prohibition, 'quo warranto, and 'certiorari, whichever may be appropriate, for the enforcement of any of the rights conferred by this Part.
(3) Without prejudice to the powers conferred on the Supreme Court by Clauses (1) and (2), Parliament may by law empower any other Court to exercise within the local limits of its Jurisdiction all or any of the powers exerciseable by the Supreme Court under Clause (2).
(4) The right guaranteed by this Article shall not be suspended except as otherwise provided for by this Constitution."
The argument of the learned Advocate-General was based on the supposition that with regard to the High Court, or any other Courts, there exists a rigid line of distinction between "power" and "Jurisdiction" and that in fact the two are in separate watertight compartments, and in order to reinforce his argument he relied on the provisions of Article 225, which, according to the marginal insertion, relates to the Jurisdiction of existing High Courts. This Article reads:
"Subject to the provisions of this Constitution and to the provisions of any law of the appropriate Legislature made by virtue of powers conferred on that Legislature by this Constitution, the Jurisdiction of, and the law administered in, any existing High Court, and the respective powers of the Judges thereof in relation to the administration of justice in the Court, including any power to make rules of Court and 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."
The Article also contains a proviso removing certain restrictions with which we are not concerned in the present argument. It was contended that although Article 226 gives all the High Courts the power to issue directions, orders, and writs, no High Court has jurisdiction to do so unless it is also given the necessary jurisdiction by legislation either under Clause (3) of Article 32 or otherwise. It is argued that Articles 225 and 226 are to be read together and that under Article 225 the jurisdiction of existing High Courts is confined to the jurisdiction enjoyed by them before the Constitution came into force, except as laid down in the proviso. This jurisdiction did not include the issue of writs, which therefore has to be otherwise provided. There is no doubt that contentions similar to those advanced by the learned Advocate General were accepted by a majority of three Judges of the Madhya Bharat High Court in the case of 'Anant Bhaskar v. State', AIR (37) 1950 Madh B 60 (FB). In that case it was held by Kaul, C. J., and Shinde, J., who accepted the existence of a rigid distinction between power and Jurisdiction, that, unlike Article 32 of the Constitution, Article 226 does not provide for any remedy which apart from the existing law could be available to a person for the enforcement of any of the rights dealt with in Part III of Constitution, and that Article 226 must be read subject to Article 32(3), and Article 226 only mentions some of the powers which, if law made by Parliament or other appropriate Legislature so provides may be exercised by the High Courts under circumstances and conditions prescribed by such law, but, so long as this is not done, the powers conferred by Article 226 must remain ineffective except in so far as they can be exercised under the existing law. I am glad to say, however that Mehta, J, dissented from this view and held that Article 226 is self-contained, providing for the extent of Jurisdiction to be exercised by High Courts, and also indicating the relief which can be granted by the issue of appropriate writs.
3. In repelling the contention of the learned Advocate-General the first point I would make is that in my opinion there is no warrant whatsoever for the argument that Article 226 is to be read with, and subject to, Article 225. This section of the Constitution, Chapter V of Part VI, deals with the High Courts in the states and deals with many miscellaneous matters in connection herewith. The subject-matter of most of these Articles is clearly quite self-contained, as can be seen from the subject dealt with in the Articles immediately preceding Nos. 225 and 226. Article 220 deals with the prohibition of practising in Courts or before any authority by Judges. Article 221 deals with salaries etc., of Judges. Article 222 deals with the transfer of a Judge from one High Court to another. Article 223 deals with appointment of acting Chief Justices. Article 224 deals with the attendance of retired Judges at sittings of High Courts. As I have already mentioned, the subject of Article 225 is jurisdiction of existing High Courts, and that of Article 226 powers of the High Courts to issue certain writs. One indication that two entirely separate matters are dealt with in these Articles is that Article 225 relates only to existing High Courts, whereas the most important words in Article 226 are 'Notwithstanding anything in Article 32 every High Court shall have power." These words alone are quite conclusive on the point that the power of High Courts to issue writs is not in any way governed by the provisions of Article 32(3), which, in any case, does not even refer specifically to High Court, but seems to indicate that Parliament may give powers to issue writs, orders and directions even to subordinate Courts. When this fact was pointed out to learned Advocate-General and he was asked to say under which of the law-making powers contained in Second Schedule Parliament could give jurisdiction to High Courts to deal with writs and kindred matters under Article 226 all he was able to do was to refer to Item No. 95 in the Union List which reads:
"Jurisdiction and powers of all Courts, except the Supreme Court, with respect to any of the matters in this List."
He was not, however, able to point out in the rest of the List any item in which writs and such matters were included. It would in fact appear that on the face of it the power to Issue writs and orders of alike nature was vested in the Supreme Court and all the High Courts by the Constitution itself, and it was only left to Parliament to extend any of these powers to subordinate Courts if considered desirable."
The said judgment and the ratio therein was not an issue arising out of any rule relating to the assignment of cases or exercise of administrative powers of the Chief Justice under Article 225 of the Constitution of India. It was a comparative study of the two articles to hold that the word 'power' used under Article 226 would also seem to include jurisdiction and that the power under Article 226 of the Constitution does not get diluted on a comparison that the Article 225 which only provides for mentioning the jurisdiction. The discussion in the judgment nowhere in the judgment quoted parawise is a debate on the distinction of the exercise of power of the Chief Justice on the administrative side and that of the powers exercised on the judicial side. The said decision, therefore, in no way comes to the aid of the argument advanced by Sri Mathur as discussed hereinabove.
He has then invited the attention of the Court to a division bench judgment in the case of Paras Nath Tiwari Vs. Bhaiya Lal reported in 1970 ALJ Page 328 and contends that the said division bench judgment clearly rules as follows in paragraphs 11 and 12 :-
11. The Supreme Court has referred to this case in Pannalal Binjraj vs. The Union of India, AIR 1957 SC Page 397. These decisions support the view we are taking. We are of the opinion that the, regulation of the sittings of the Judges of the Court is not a judicial function that the Chief Justice performs. It is only an administrative power discharged to facilitate the performance of the judicial function of the Court by the various Judges who constitute it. Once the case is before a Bench, it has full jurisdiction to decide it and is not only fully seized of it but has complete dominion, over it to fix dates and decide it in accordance with its views and the law oil the subject. The administrative powers of the Chief Justice do not destroy this inherent jurisdiction possessed by the Bench receiving a case and must be read subject to it.
12. In the present case, the objection seems to be to, the Method of exercise of jurisdiction by this Bench. Admittedly, the Bench had the jurisdiction to decide the case as any other in the Court. What in substance is contended is that the, jurisdiction will remain unexercisable (as if it were latent) without an order by the Chief Justice assigning the case to the Bench and that once that order is there, the jurisdiction to decide the case becomes patent. It was observed in Rajwant Prasad Pande v. Ram Ratan Gil, AIR 1915 P.C. 99 follows.
"Their Lordships think it is very trite and very familiar that a challenge of the method of the exercise of the jurisdiction of a court can never in law justify a denial of the existence of such jurisdiction"
Having perused the same I find that in that case the matter had been listed in the cause list of that bench which cause list was prepared under orders of Hon'ble the Chief Justice. It was also ruled that assignment of cases is made by showing them in the cause list and specific orders are not passed by the Chief Justice. It was, therefore, inferred that allotment of cases in the daily cause list have the authority of the Chief Justice as it has been listed before the bench as such no substance was found in the argument of assignment.
The instant case is clearly decipherable on facts as well and the aforesaid ratio would not apply inasmuch as here neither the Special Appeal No.32 of 2014 nor the Single Judge Habeas Corpus Petition No.594 of 2012 was listed before the division bench having jurisdiction of habeas corpus matters and was not even listed under the orders of the Chief Justice/Senior Judge before the bench which finally decided the matter. The cases were summoned by the bench before it on 19.9.2014 by a judicial order dated 18.9.2014 alongwith fresh W.P. No.299 of 2014. No roster or list had been formulated by any administrative order of the Chief Justice or the Senior Judge to list the matter before the said bench. To the contrary, the bench vide a judicial order dated 18.9.2014 assigned to itself the said cases which were listed before a different co-ordinate bench that had jurisdiction over the matter arising out of special appeals. As a matter of fact Special Appeal No.32 of 2014 was shown on board in the cause list before the Special Appellate bench presided over by Hon'ble Rajiv Sharma,J in a different court. The case also had not been withdrawn or assigned to any other bench as already indicated above. Therefore, on facts the ratio of the decision in the case of Paras Nath Tiwari (supra) is not at all attracted as it is clearly distinguishable as explained above.
The matter requires to be clarified to the extent that in the event any court or judge presiding over a court finds it necessary to peruse the records of any other case of any other jurisdiction for the purpose of deciding a case listed before the court then such records are ordinarily summoned from the office and perused, but such a case is not decided nor does the judge of the court assume jurisdiction to decide a case which has been summoned for perusal of the record.
It would not be inappropriate to mention that the powers on the judicial side of a division bench is not co-centric with that of the powers of the Chief Justice on the administrative side. On the other hand, the power of Hon'ble the Chief Justice/Senior Judge in his administrative capacity is not bicentric in the sense that it cannot be a power which can be exercised judicially under Article 226 and 227 of the Constitution. This would be contrary to the constitutional scheme and such an interpretation has to be necessarily avoided.
Having answered the question that the summoning of the file without any administrative order was without authority, the answer to the question of entertaining and deciding the special appeal by a different bench has also to be made in the negative could not be converted into PIL.
Issue No.F "Question No.9- Whether the order dated 19.9.2014 passed by one of the the Judges of the division bench in Writ Petition No.9470 of 2014, and not signed by the other Judge, amounts to a valid order or judgment ?
Question No.11- Whether there is a conflict of opinions in the orders between the two division benches and if so then its resolve ?
Question No.14- Whether, the learned Single Judge (Hon'ble S.N. Shukla,J) who was a Member of the Division Bench and heard Writ Petition No.299 (H/C) of 2014, could have alone passed Order dated 24.9.2014, in case the Judgement and Order dated 19.9.2014 pronounced by the bench presided over by Hon'ble Amar Saran,J., is deemed to be a judgement delivered in open Court and had attained finality?
Question No.16- Whether the order dated 19.9.2014, delivered by Division Bench comprising Hon'be Amar Saran,J and Hon'ble Shri Narayan Shukla,J shall be deemed to be final judgment of the pending petition?
Question No.17- Whether reference made by Hon'ble the Chief Justice was permissible and required in view of the arguments advanced that a Habeas Corpus Petition No.299 of 2014 and Special Appeal No.32 of 2014 stood finally decided on 19.9.2014 and no matter of conflict remains pending to be resolved by reference?
Question No.18- Whether the order of learned Single Judge (Shri Narayan Shukla,J) dated 24.9.2014 is an order on judicial side or administrative side, capable of raising valid reference?"
To answer these issues one will have to refer to the orders passed on 18.9.2014, the three orders of the respective division benches passed on 19.9.2014 and the order passed by one of the learned Judges on 24.9.2014 alone. It is admitted that orders were passed by the Bench of Hon'ble Amar Saran and Shri Narayan Shukla,JJ on 18.9.2014 connecting all three matters together and simultaneously converting Writ Petition 5094 of 2012 into a public interest litigation. There is no doubt that the said order dated 18.9.2014 was passed and signed by both the Judges and this is how all the three matters came up before the same bench on the next day i.e. on 19.9.2014. On 19.9.2014 this bench pronounced a detailed judgment in open court in the presence of the other member of the bench who did not propose any different opinion. Special Appeal No.32 of 2014 was dismissed as infructuous and Writ Petition No.299 of 2014 was allowed. Simultaneously Writ Petition No.5094 of 2014 which was given a new number as a Public Interest Litigation No.9470 of 2014 was allowed to continue as such. This fact that the judgment was pronounced by the Senior member of the bench without any contrary view having been expressed by the other member has been admitted by all the learned counsel for the parties at the bar. This also appears to be so from a perusal of the records.
It appears that Hon'ble Shri Narayan Shukla,J had not signed the judgment that was pronounced in open court by the bench. The question is whether non-signing of the judgment invalidates it altogether. The answer clearly lies in the ratio expressed in the decisions cited namely that of Surender Singh Vs. State of U.P., AIR 1954 SC Page 194, Kushalbhai Ratanbhai Rohit and others Vs. State of Gujrat, 2014 (9) SCC Page 124, and Review Petition No.794 of 2014 in Special Appeal No.599 of 2006 (SB) which relies on the Apex Court decision in the case of Vinod Kumar Singh Vs. Banaras Hindu University, AIR 1988 SC Page 371. A couple of other decisions have also been referred to AIR 1966 All (FB) Page 221, (Sangam Lal Vs. Rent Control and Eviction Officer & others) and 1995 Suppl (2) SCC Page 590 (Yadlapati Venkateswarlu Vs. State of Andra Pradesh & another). A perusal of the ratio of the aforesaid decisions leaves no room for doubt that if the judgment has been pronounced in open court, then non-signing of the same would not invalidate it as it will be a valid judgment unless reviewed in accordance with law. The learned Judge and member of the division bench who did not sign the order, passed an order alone on 24.9.2014 that has already been extracted by us in our order dated 14.10.2014. The question is if the matter had been finally decided on 19.9.2014, did one of the learned Judges who had not signed the judgment could have passed such an order alone? In my opinion, if the pronouncement was final, and which also appears from the order dated 24.9.2014 passed by the learned Judge himself, and there was no contrary view taken by him separately, then the judgment dated 19.9.2014 had become final. The learned Judge had become functus officio thereafter and could not have expressed a different opinion on 24.9.2014 which was neither in the shape of a judicial order nor it could be said to be a valid administrative order. At the best it was an opinion expressed by him in the peculiar situation created by his non-signing of the judgment. The question also is if the special appeal had been dismissed as infructuous then could the other division bench have sent a reference in the same special appeal and had an authority to pass such an order. It may be observed that the learned Single Judge ought not to have undertaken this exercise and should have either signed the judgment or expressed a different opinion, if at all he had any difference with the same and ought not to have indicated a point of reference after five days of the passing of the judgment. This was an absolutely unusual judicial act and is unknown to any such regular practice of this Court. It is also unsupported in law. I, therefore, hold that the learned Judge having exercised an abstention from signature had no authority to make any reference or point out any such conflict of opinion, which otherwise was a matter of debate between the two division benches, and should not have been subject matter of any expression of opinion independent of these proceedings.
As a matter of fact the opinion expressed by the learned Single Judge may have been his own opinion but the same is judicially not tenable inasmuch as he could not have rendered an opinion in a matter which had already been disposed of finally on 19.9.2014 by a bench of which he himself was a member on the assumption that he had not signed it. As already held hereinabove, the non-signing by the learned Single Judge was of no consequence and the open pronouncement in Court had already become final on 19.9.2014 that crystallized into a judgment. Thus, the learned Single Judge did not have the option to make a reference that too even without forming a different opinion himself or indicating that he had a different opinion when the judgment was pronounced on 19.9.2014. To clarify it further I may point out that there cannot be a difference of opinion unless there is an opinion expressed. Even otherwise a member of the same bench cannot carve out a reference after having finally disposed of the matter to point out a possible conflict. There is no procedure or power that could be invoked by Hon'ble Justice Shri Narayan Shukla to record his individual views about an alleged conflict, which otherwise also did not exist on 24.9.2014.
The division bench which was having the roster of special appeal had not expressed any final opinion or judgment in the matter, and before it could do so, the division bench which was being presided over by Hon'ble Mr. Justice Amar Saran disposed of the matter finally in between on the same day. Consequently there was no matter pending, and as indicated above, the division bench presided over by Hon'ble Rajiv Sharma,J could not render a different opinion of conflict after the disposal of the appeal and pass an order making reference. The said order was only an intimation to Hon'ble the Chief Justice about the issue of impropriety and the matter being taken up in violation of the roster. In the circumstances the reference for deciding an issue in the case itself did not arise in this matter at all.
However, the saving grace is that Hon'ble the Chief Justice while passing the order of reference on 25.9.2014 has taken care to refer the case to this bench leaving it open to the full bench to formulate its own question. The question is, did anything survive for the purpose of reference? Here fortunately the Division Bench which passed the final judgment on 19.9.2014 converted the Single Judge Writ Petition No.594 of 2012 into a public interest litigation with a new number Writ Petition (PIL) No.9470 of 2014 and directed the same to be placed for monitoring in future. This, therefore, survives and it is on this that Hon'ble the Chief Justice was pleased to make a reference. In such peculiar circumstances, the reference, therefore, survives for being answered as it is in a pending PIL which has been kept alive by the division bench itself by way of conversion of the Single Judge petition into a PIL. The Chief Justice, therefore, had referred the said case and as such this bench continues to possess the authority to answer a peculiar reference in a surviving and pending case.
Having said so there was also no issue of conflict of opinion and rather it was a clear absence of jurisdiction as observed by us hereinabove. Consequently, I hold that the order pronounced on 19.9.2014 by the bench presided over by Hon'ble Amar Saran,J was a final judgment and the learned Single Judge who had not signed the same was under an obligation to sign it and had obviously no authority to pass a separate order in the manner in which it has been done in the present case. Thus, the reference on a conflict of opinion may not be maintainable but since the ongoing public interest litigation was also referred to us, the reference still survives to be answered by this Bench.
Issue Nos. G & H "Question No.12- Whether in the larger interest of the detenues the orders for release that have been passed by the learned Single Judge being without jurisdiction is lawful?
Question No.13- Whether on merits the release orders of the detenues passed from time to time can be legally sustained on merits on the basis of the principles applicable to such detention?
Question No.15- Whether the legal impact of judgment and order under scrutiny, upon reference to this Full Bench can be reviewed in this proceeding, if otherwise found to be suffering from some error on the face of record, both on facts and law as also being without jurisdiction?"
The question of exercise of powers of review ex-debito justitiae has been explained by the Constitution Bench in the case of A.R. Antulay vs R.S. Nayak & Another reported in 1988 (2) SCC 602. The question is, can such a power be exercised in these proceedings arising out of a reference and whether any such matter is pending before this court or not.
The position that has been explained hereinabove and facts that have emerged indicate that the division bench which finally passed order on 19.9.2014 has kept the matter alive as a public interest litigation. Thus the Chief Justice had rightly made a reference in a surviving matter and if the proceedings were surviving, the question is, can a review be undertaken even in respect of final orders that have already been passed in the same proceedings.
Sri Mathur contends that this Court may not be able to exercise this power of review as it is not sitting to hear a review matter and is rather hearing a matter arising out of a reference on the alleged conflict as indicated in the order of reference.
Sri Mathur in my opinion is correct in his submission that if a judgment has attained finality then the remedy to get it reversed is to either approach the higher forum of appeal or to file a review petition before the same court if the ingredients of review are available.
The instant is a case where a very peculiar situation has arisen as is evident from the answers given by us to the questions framed touching the issue of propriety. This therefore is a case where an extraordinary situation has arisen and which requires in our opinion a remedy on the facts that have emerged out of the orders passed. It is evident from our findings recorded that there was a violation of principles of natural justice, both at the stage of learned Single Judge and also when the matter was finally disposed of by the division bench on 19.9.2014. This is evident from the facts of the case of Sameeha Khatoon who was released by the learned Single Judge without putting her father to notice that resulted in the filing of the special appeal by the father of the detenue. The division bench dismissed the special appeal as infructuous without allowing any reasonable time to the father to contest the division bench writ petition which was allowed on 19.9.2014 on the very next day of its filing. Thus it is clear that the father of the detenue, Masihuddin did not get any opportunity to contest the proceedings and therefore the disposal of the matter in the manner aforesaid clearly resulted in violation of principles of natural justice.
It is here that the judgment in the case of A.R. Antulay (supra) has to be carefully read and applied. The aforesaid constitution bench by a majority has held that a review would lie if any fundamental rights have been violated or an order has been passed in violation of principles of natural justice. It has further been emphasised therein that no one should suffer for the wrong of the court. This has been indicated in Paragraph 55 of the said reported judgment and the case was also treated to be peculiar that demonstrated such action by recording a clear finding to that effect in Paragraph 57 of the said judgment. The same view has been again indicated in Paragraph 76.
The court further in paragraph 83 ruled as under :-
"This passage was quoted in the Gujarat High Court by D.A. Desai,J. speaking for the Gujarat High Court in Soni Vrajlal v. Soni Jadavji as mentioned before. It appears that in giving directions on February 16, 1984, this Court acted per incuriam inasmuch it did not bear in mind consciously the consequences and the provisions of Sections 6 and 7 of the 1952 Act and the binding nature of the larger Bench decision in Anwar Ali Sarkar case which was not adverted to by this Court. The basic fundamentals of the administration of justice are simple. No man should suffer because of the mistake of the court. No man should suffer a wrong by technical procedure of irregularities. Rules or procedures are the handmaids of justice and not the mistress of the justice. Ex debito justitiae, we must do justice to him. If a man has been wronged so long as it lies within the human machinery of administration of justice that wrong must be remedied. This is a peculiar fact of this case which requires emphasis."
The words 'Ex debito justitiae' means "what is owed by justice". It is spoken of as a remedy in which the court has no discretion to refuse.
The court also went on to explain the meaning of the word jurisdiction in Paragraph 91, and then it was held that to rectify a mistake it was open to the court to proceed with the matter.
The court in the same judgment has in paragraph 85 held that one wrong cannot be remedied by committing another wrong and therefore in paragraph 102 of the same judgment the Supreme Court held that the court has inherent powers to exercise to remedy the mistake and it is its duty to correct the same. In our opinion, also there is no discretion with a court to disobey the law.
The judgment in Paragraph 107 however indicated that the decision may be not used as precedent to challenge judicial orders and if this position so arrives the court which is asked to use the same as an instrument, would be alive to the peculiar facts and circumstances of the case in which the said judgment was being delivered.
This court is aware of the legal limitations but at the same time I find it necessary to observe that this is a fit case where an exceptional circumstance has arisen to point out that a review would be desirable to rectify the gross mistake of procedure as recorded by us hereinabove. Neither the learned Single Judge had any authority to entertain the petitions nor the division bench which passed the final judgment on 19.9.2014 could have done so for all the reasons that have been enumerated by us while recording the findings on the issues mentioned above. All the orders passed by the learned Single Judge and the division bench under scrutiny are thus legally unsustainable. This was therefore a clear case where the mistake deserved to be corrected yet it was perpetuated. It is also to be remembered that howsoever laudable the object of the proceedings may have been to set at liberty detenues, who in the opinion of the court were unlawfully detained, yet the same has to be done lawfully and in accordance with law. For this reference may be had to paragraph 41 of the judgment in the case of A.R. Antulay (supra) where reference was made to the judgment in the case of State of West Bengal Vs. Anwar Ali Sarkar, AIR 1952 SC Page 75.
I am therefore of the opinion that the judgment and orders under scrutiny do require a review but at the same time I would observe that instead of doing so in this reference, I find it appropriate that this exercise is attempted and concluded by the division bench competent to hear a State Detention Habeas Corpus Petition, that would also have the jurisdiction to hear a review in writ petition No. 299 of 2014. The power of review can be exercised by the court itself. The mistake is manifest as has been recorded by us but in order to rectify the said mistake I find it necessary to send the matter back to the division bench for an appropriate order suo motu in this regard. I therefore answer questions no.12, 13 and 15 holding that a review would be permissible in this matter in the light of the observations made hereinabove as the orders of the learned single judge for release were without jurisdiction even if they could be otherwise sustained on merits.
We therefore request Hon'ble the Chief Justice that this reference having been answered by us be placed before the appropriate bench alongwith the records of the proceedings for exercise of such power in the light of the observations made by us.
This takes us to the issues of any relief that may be necessary in respect of the release orders already passed and which according to us have not been found to be legally sustainable. In the facts and circumstances of the present case, it may be observed that the division bench that would be now hearing the matter independently shall be at liberty to pass appropriate orders in relation to each individual case which would be dependent on the facts of the individual detenues, provided appropriate proceedings are instituted in accordance with law or the matter is allowed to be proceeded with as a public interest litigation on an appropriate order to be passed by Hon'ble the Chief Justice or Hon'ble the Senior Judge as the case may be. The questions on this issue therefore stand answered accordingly.
As a measure of precaution we may further observe that the release orders passed in respect of the detenues involved in the present proceedings either by way of final relief or interim arrangement shall continue unless ordered otherwise by the concerned bench which may hear the matter.
Let the papers of this reference be now placed before the Hon'ble Chief Justice for placing it before the appropriate bench to deal with the matter in accordance with the observations made hereinabove.
Order Date:- 16.1.2015 Anand/sahu (Justice A.P. Sahi) Judgement delivered in pursuance to provision contained in Chapter VII Rule 1(2) of Allahabad High Court Rules today i.e. 16.1.2015 in open Court.
(Justice Ajai Lamba) (Justice Devi Prasad Singh)
16th January, 2015