Rao Shiva Bahadur Singh vs The State Of Vindhya Pradesh And Anr.

Rewritten Version Notice: This is a rewritten version of the original judgment.

Court: Supreme Court of India

Case Number: Criminal Appeal No. 7 of 1951

Decision Date: 7 April, 1955

Coram: Chief Justice Vivian Bose, Justice Das

Rao Shiva Bahadur Singh versus The State Of Vindhya Pradesh And Anr. was listed before the Supreme Court of India on 7 April 1955. The matter was placed before a Bench presided over by the Chief Justice and Justice Vivian Bose, and the judgment was delivered by Justice Das. The petition presented before the Court sought a writ in the nature of habeas corpus, requiring the respondents to show cause why the petitioner, who at that time was detained in the Central Jail at Rewa, should not be released. The petitioner maintained that his confinement amounted to a deprivation of liberty that had not been carried out in accordance with the procedure established by law. After a rule nisi had been issued, the respondents submitted an affidavit as a return to the writ. The central question presented for the Court’s determination was whether that return was legally adequate and sufficient to meet the requirements of the writ.

The factual background leading to the petition was relatively straightforward. In the years 1948 and 1949 the petitioner held the office of Minister of Industries in the Government of Vindhya Pradesh, which at that time qualified as an acceding State under section 6 of the Government of India Act, 1935, as amended in 1947. On 11 April 1949 the petitioner was arrested in Delhi on an allegation that he had accepted an illegal gratification in order to favour the Panna Diamond Mining Syndicate with respect to the lease of the diamond mines at Panna. In December 1949 the petitioner, together with Mr Mohan Lal who then served as Secretary in the Ministry of Industries, was committed to trial before the Court of Special Judge at Rewa, a court constituted under the Vindhya Pradesh Criminal Law Amendments (Special Courts) Ordinance No. V of 1949. The charges brought against them were framed under sections 120-B, 161, 465 and 466 of the Indian Penal Code, as those provisions had been adapted for Vindhya Pradesh by the Indian Penal Code (Application to Vindhya Pradesh) Ordinance No. XLVIII of 1949. The Special Judge, by judgment delivered on 26 July 1950, acquitted both accused persons. The State, dissatisfied with the acquittal, appealed to the Judicial Commissioner of Vindhya Pradesh. The Judicial Commissioner, by judgment dated 10 March 1951, set aside the acquittal, convicted both respondents, imposed separate terms of rigorous imprisonment under the various sections, and ordered the payment of certain fines. Acting on an application made by the petitioner and his co-accused, the Judicial Commissioner on 12 March 1951 issued a certificate stating that four points of law raised in the case and formulated by him were fit for consideration by this Court under article 134 of the Constitution of India. Relying on that certificate of fitness, an appeal was filed in this Court and was entered as Criminal Appeal No. 7 of 1951.

In April 1953 the case was referred to a bench consisting of five judges of this Court, as required by article 145(3) of the Constitution. For ease of reference the Court described a bench of five or more judges as a Constitution Bench. The petitioners challenged the validity of the convictions and sentences on the ground that articles 14 and 20 of the Constitution had been violated. They also raised a further question of law, contending that no appeal lay to the Judicial Commissioner from the Special Judge’s acquittal. By a judgment pronounced on 22 May 1953 the Constitution Bench rejected all of these objections. The judgment concluded with the direction that “the appeal is accordingly directed to be posted for consideration whether it is to be heard on merits.” This direction reflected the fact that the certificate of fitness issued by the Judicial Commissioner had limited the scope of the appeal to four specific points of law only. After the constitutional issues had been disposed of, the appeal was transferred to a Division Bench of three judges. On 20 October 1953 that Division Bench ordered that the appeal should be heard on its merits. Consequently the matter was placed before another Division Bench of three judges for a full hearing of the appeal.

On 5 March 1954 the Division Bench allowed the appeal of Mohan Lal and acquitted him. However, it dismissed the petitioner’s appeal with respect to the convictions under sections 161, 465 and 466 of the Indian Penal Code, as adapted in Vindhya Pradesh, while it set aside the conviction under section 120-B. The three-year term of rigorous imprisonment was upheld, but the fine imposed was removed. On 18 March 1954 the petitioner filed a petition for review, challenging both the Constitution Bench judgment of 22 May 1953 and the Division Bench judgment of 5 March 1954 that had dismissed his appeal on the merits. The Registry objected that a single review application was being used for two judgments, one of which was filed beyond the permitted period. In response, the petitioner submitted a second review application concerning only the Constitution Bench judgment and requested condonation of delay. On 5 April 1954 the application for review was heard before the same Division Bench that had delivered the merits judgment. After examining the grounds of review, the Division Bench found no sufficient basis to set aside the earlier judgment and dismissed the petition. An order was issued on that date directing the petitioner, who had previously been released on bail, to surrender and to serve the remainder of his sentence.

On 12 April 1954 another petition was filed on the petitioner’s behalf. The petition sought that the review issue concerning the Constitution Bench judgment pronounced on 22 May 1953 should be referred to a Constitution Bench for its final determination. The review application was placed before a Constitution Bench, which on 17 May 1954 refused to entertain the petition. In the interval, the petitioner surrendered during the last week of April 1954 and has been detained ever since in the Central Jail at Rewa. Consequently, the present application was filed as a writ of habeas corpus, alleging that the petitioner was being deprived of his liberty in a manner not authorized by the procedure established by law.

In the present petition the petitioner renewed the contention that the Court of the Judicial Commissioner of Vindhya Pradesh was not the appropriate forum to entertain the appeal against the Special Judge’s judgment; therefore, the Judicial Commissioner’s order setting aside the petitioner’s acquittal, convicting him, and imposing a term of imprisonment was asserted to be void and inoperative. Alternatively, the petitioner argued that, assuming the Judicial Commissioner possessed jurisdiction to hear the appeal from the Special Judge and that his judgment complied with the procedural law, the appeal filed in this Court against the Judicial Commissioner’s judgment should, under article 145(3) of the Constitution, have been heard and finally disposed of by a Constitution Bench. The first point regarding the alleged incompetence of the Judicial Commissioner’s Court was already fully examined by the Constitution Bench and could not be raised again; moreover, counsel supporting this petition did not press that argument. Thus, the only issue remaining for consideration is the alternative plea, which depends on a proper construction of article 145. Article 145, by clause (1), empowers this Court—subject to any parliamentary legislation and with the President’s approval—to make rules governing the practice and procedure of the Court, including rules relating to the hearing of appeals, the entertainment of appeals under sub-clause (c) of clause (1) of article 134, and the conditions and procedures for reviewing any judgment or order of the Court. Clauses (2) and (3) of article 145 state that, subject to clause (3), rules may prescribe the minimum number of judges required for any purpose and may define the powers of single judges and Division Courts, and that the minimum number of judges required to decide any case involving a substantial question of law must be five, with provisions for referring such questions to a suitably constituted bench.

Article 145, clause (3) provided that the minimum number of judges required to decide any case that raises a substantial question of law relating to the interpretation of the Constitution shall be five. However, the provision also contained a safeguard: when an appeal under any provision of the Chapter other than article 132 was being heard before a bench that consisted of fewer than five judges, the Court could, during the hearing, become satisfied that the appeal involved a substantial constitutional question whose determination was essential for disposing of the appeal. In such a circumstance, the Court was mandated to refer the constitutional question to a Constitution Bench constituted in accordance with the same clause. After receiving the opinion of that Constitution Bench, the original bench was required to dispose of the appeal in conformity with the opinion rendered.

The petitioner asserted that the determination of whether a particular case involved a substantial question of law concerning the interpretation of the Constitution must be made at the very moment the case first came before the Supreme Court. According to that view, if the case was identified at that initial stage as involving a substantial constitutional question, it would irrevocably acquire that character, thereby obligating the Court to sit as a Constitution Bench of at least five judges for the entire proceeding. The petitioner’s counsel relied heavily on the language of clause (3) and argued that “the case” could not be divided between different benches; consequently, the entire matter, including all constitutional and non-constitutional issues, had to be decided by the Constitution Bench. On this basis, the counsel maintained that the Division Bench, which had taken up the appeal, lacked jurisdiction to entertain a case involving a substantial constitutional question, rendering the Division Bench’s judgment dated 5 March 1954 illegal and void. The counsel further contended that because the appellant remained on bail pending the disposal of the appeal, his subsequent detention pursuant to the Division Bench’s order amounted to a deprivation of personal liberty not in accordance with the procedure established by law, thereby infringing his fundamental right under article 21 of the Constitution. While this line of argument initially appeared persuasive, a careful examination of the relevant constitutional provisions and the general principles governing the procedural powers of the courts led the Court to conclude that the argument was not sound or well-founded.

In the matter before the Court, the Judicial Commissioner of Vindhya Pradesh had issued a certificate of fitness pursuant to article 134(1)(c) of the Constitution. Because of that certificate, the proviso to clause (3) of article 145 permitted the appeal to be assigned to a Division Bench that contained fewer than five judges. The Court observed that, if the Division Bench was convinced that the appeal raised a substantial question of law concerning the interpretation of the Constitution and that a decision on that question was essential for disposing of the appeal, the Bench was authorised to refer the question to a Constitution Bench for its opinion. After receiving the opinion of the Constitution Bench, the Division Bench could then dispose of the appeal in conformity with that opinion. The Court explained that accepting the submission of counsel Sri Purshottam Trikumdas would require a conclusion that, while a three-judge Division Bench could split the present case by referring the constitutional issue to a Constitution Bench and then deciding the remaining matters on the merits, a Constitution Bench of five or more judges—if the case were originally posted before it—could not split the case in the same way. In other words, the Constitution Bench would be prohibited from dealing with the constitutional question and leaving the rest of the case to be decided by a smaller Division Bench in accordance with the Constitution Bench’s opinion, a result that would effectively save the time of the Constitution Bench. The Court also referred to article 228, which empowers the High Court, when satisfied that a case pending in a subordinate court involves a substantial constitutional question necessary for resolution, to withdraw the case. The High Court may then either dispose of the case itself or determine the constitutional question and return the matter to the lower court so that the lower court may dispose of it consistent with the High Court’s judgment. The Court noted that the argument of counsel would, by the same reasoning, permit the High Court to split a case involving a substantial constitutional question, while simultaneously barring a Constitution Bench of this Court from performing a similar split.

The Court further observed that, apart from the constitutional provisions discussed, various procedural statutes contain provisions that allow a case to be heard partly by one judge and partly by another. For example, section 24 and Order 18, rule 15 of the Code of Civil Procedure, as well as sections 350, 526, 528 and 556 of the Code of Criminal Procedure, provide for such partial hearings. The Court explained that if the argument of counsel Sri Purshottam Trikumdas were pursued to its logical end, it would amount to the proposition that courts operating under ordinary procedural codes may divide a case into different stages, yet a Constitution Bench of this Court could not do so when the case involves a substantial question of constitutional interpretation. This would create an inconsistency, because the ordinary procedural provisions expressly allow splitting of cases, whereas the constitutional rule on indivisibility of a case would be treated as an exception without clear justification. Consequently, the Court could not accept the reasoning that the special constitutional and statutory provisions merely serve as exceptions to a general rule that a Constitution Bench may not split a case involving substantial constitutional questions.

For the purpose of hearing and deciding a matter, a Constitution Bench of this Court is not permitted to divide the proceeding when the case first presented before it contains a substantial question of law concerning the interpretation of the Constitution. Learned counsel for the petitioner acknowledged that his own argument creates an inconsistency, yet he asserted that the inconsistency cannot be avoided because the statutory provisions previously cited expressly allow a case to be split, whereas clause (3) of article 145 does not contain such a sanction. He argued that the instances mentioned earlier demonstrate that splitting must be permitted because the Constitution itself or other statutes provide for such division in those particular situations. According to him, the very existence of those special provisions indicates that, but for them, division of the case would be impossible. He further described those provisions as exceptions to an alleged general rule that a case must remain indivisible. The Court was unable to accept this line of reasoning.

The Court observed that the proviso to article 145(3), article 228, and the various procedural code provisions cited earlier clearly show that dividing a case into separate stages for hearing and decision does not conflict with the Constitution or with the general principles of procedural law. The Constitution’s fundamental requirement is that every constitutional question be heard and decided by a bench comprising not fewer than five Judges. Provided that this requirement is satisfied, there is no constitutional objection to allowing the remaining portions of the case to be disposed of by a Division Bench consisting of fewer than five Judges, thereby conserving the time of a larger Constitution Bench.

Furthermore, the Court noted that it is not aware of any universal rule of indivisibility that the petitioner’s counsel insists upon. Nothing in principle obliges a case to be decided in its entirety by a single Judge or by the same set of Judges, even when the matter could be conveniently handled in two or more stages. The Court referred to the decision in Maulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz (L.R. 24 I.A. 22), where the Privy Council observed that when a Judge faced a case comprising two parts—a question of title and an incidental question of account dependent on the title—no specific provision of the Civil Procedure Code was required to empower the Judge to decide the first issue and reserve the second for later investigation. To treat such a procedure as beyond the Court’s power and to deem it an error that would bar further proceedings was described as a serious miscarriage of justice. The Court also affirmed that it frequently exercises its inherent power, when deemed appropriate, to decide preliminary questions such as jurisdiction or limitation, or

The Court observed that it is permissible to decide preliminary issues while reserving other factual matters for investigation at a later time. It further explained that when a case is heard in two or more stages, it often happens that the same judge does not render the final decision, because the judge who dealt with the first stage may become unavailable due to death, retirement or transfer. Consequently, the Court held that no argument could be sustained on the basis of a supposed general rule that a case must be indivisible for the purpose of its hearing and determination. The Court considered that the counsel who relied on such a rule was mistaken, and that the division of a case into stages is not ordinarily contrary to law or to the Constitution. Accordingly, while interpreting clause (3) of article 145, the Court concluded that the expression “the case” should not be read as implying any quality of indivisibility. A matter may initially involve a substantial question of law concerning the interpretation of the Constitution, but that same matter may cease to involve that constitutional question at a later stage. For example, if a case that raises a constitutional issue is placed before a Constitution Bench and counsel for the party later informs the bench that he will not press any constitutional point, the counsel cannot in that circumstance demand that a bench of five or more judges continue to devote its time to a case which, by his own election, no longer raises a constitutional question. Similarly, once a Constitution Bench has disposed of the constitutional issues, the remaining aspects of the case cannot properly be described as a “case involving a substantial question of law as to the interpretation of this Constitution.” The Court reminded that when a suit or appeal is properly admitted before this Court, the parties are entitled only to a decision of the Court itself and not to a decision of any particular bench. So long as the minimum number of judges prescribed by the Constitution and by the rules framed by this Court are present to hear and determine the questions that arise at each stage, those judges constitute the Court for the purpose of delivering judgments, and the parties receive the relief to which they are lawfully entitled. The Court further noted that, as the Privy Council has held, a Court may decide a case in stages, and there is no reason to interpret article 145(3) so narrowly as to deprive this Court of that inherent power. Interpreting clause (3) of article 145 to require only that at least five judges sit when a matter involves a substantial question of law concerning the interpretation of the Constitution does not offend any principle of natural justice or any other legal principle.

In examining the provision of clause (3) of article 145, the Court observed that the wording of the clause did not contain any expression that opposed the view that it allowed a Constitution Bench to decide every question that directly concerned the Constitution while permitting a Division Bench of fewer than five judges to handle the remaining subsidiary matters. The Court noted that this understanding had become the established practice of the Court, whereby a Constitution Bench addressed all constitutional issues and left the ancillary questions to a smaller Division Bench, consistent with the opinion expressed by the Constitution Bench itself. The Court further stated that there was no portion of clause (3) that required it to abandon the well-known principle “cursus curiae est lex curiae,” a maxim originally formulated by Lord Coke in Burrowes v. High Commission Court and later endorsed in Habibar Rahman v. Saidannessa Bibi. Relying on these observations, the Court concluded that the respondents had filed a proper and satisfactory return to the rule nisi served upon them. Consequently, the application for further relief was dismissed and the order was made accordingly, with the opinion recorded as being delivered by Justice Sinha.

The Court then expressed regret that its interpretation of article 145(3) differed from that of other learned members of the bench, noting that the construction of this clause constituted the principal issue in the present controversy. The Court reproduced the text of clause (3), which mandates that a minimum of five judges must sit when deciding any case that presents a substantial question of law concerning the interpretation of the Constitution, or when hearing any reference made under article 143. The clause further provides that if an appeal is being heard by a bench consisting of fewer than five judges—except in cases governed by article 132—and the bench determines that the appeal raises a substantial constitutional question essential for the disposal of the appeal, the bench must refer the question to a properly constituted court as required by the same clause and, upon receiving the opinion of that larger bench, must dispose of the appeal in accordance with that opinion. The Court observed that, while article 145(2) empowers the Court to make rules regarding the minimum number of judges required for various purposes and to define the jurisdiction of single judges and Division Courts, this power is expressly limited by the requirement set out in clause (3). Accordingly, whenever a case involves a substantial question of law relating to the interpretation of the Constitution, the Constitution itself prescribes that the bench hearing such a case must consist of at least five judges.

In interpreting article 145, clause (3) the Constitution fixes the minimum number of Judges required to decide a case that involves substantial questions of law concerning the interpretation of the Constitution at five. A case may contain such constitutional questions together with other, non-constitutional issues. The point that required determination was whether clause (3) was intended to apply to the entire case or only to a part of it. The view expressed holds that, when the Constitution enacted clause (3) of article 145, it contemplated that the whole controversy before the Court – which may include both constitutional questions and other questions – must be dealt with as a single case. Except for the situations covered by the proviso, the main clause does not permit a case to be divided into separate parts, one part containing substantial constitutional questions and the other part containing matters that are not constitutional in nature. The reasoning for this conclusion is that clause (3), read together with the proviso, distinguishes between a “case” and a “question” as described in the proviso. The Constitution explicitly allows that cases falling within the scope of the proviso may be split so that the constitutional issues can be decided by a Bench of at least five Judges, often termed a “Constitution Bench,” in contrast to a Division Court consisting of fewer than five Judges. Under the main clause, a case of the kind described must be heard and decided by a Constitution Bench, whereas the proviso provides that only the constitutional question needs to be decided by such a Bench, while the remainder of the case stays with the Division Court that originally heard it. The Constitution therefore accords a special status to cases involving substantial constitutional questions. If the framers had intended that only particular questions, and not the whole case, required the participation of five Judges, they would have employed language similar to that used in the proviso, thereby allowing the Constitution Bench merely to give an opinion that a Division Court could follow. Article 228 further illustrates that the framers were aware of the distinction between deciding the whole case and deciding only a constitutional question arising in that case. That article makes clear that the High Court must either dispose of the entire case, including any constitutional question necessary for its resolution, or decide only the constitutional question or questions and then return the case to the original court for final disposal.

The Court observed that when a matter is transferred for disposal, it must be disposed of in conformity with the judgment of the High Court on the specific question or questions that were referred. The Constitution incorporated particular provisions to underline that there is a clear distinction between determining the case in its entirety and determining a substantial question of law of constitutional importance. The Court then considered a hypothetical scenario: if clause (3) of article 145 had been enacted without the proviso, could a case be heard in pieces, first by a Constitution Bench that would decide only the constitutional questions of law, and thereafter the remaining part of the case be heard and decided by a Division Court? The Court held that such a piecemeal approach would not comply with the mandatory language of the main clause (3). Consequently, the framers introduced the proviso as an exception to the general rule laid down in clause (3). The Court noted that the proviso is confined to appeals only, with a further limitation that such appeals must not have reached the Supreme Court through the procedure prescribed in article 132 of the Constitution. Thus, the proviso does not apply to all matters contemplated by clause (3); it applies only to appeals of a particular description. The Court further explained that, although the word “case” has not been expressly defined, settled law treats it as a broader concept than a “suit” or an “appeal.” Accordingly, the proviso applies to appeals brought before this Court, except those governed by article 132, whereas the main clause (3) extends to all appeals and every other matter that comes before the Supreme Court in its original, appellate, and advisory jurisdictions. In the Court’s view, there is no doubt that the main provisions of clause (3) are all-embracing and contemplate every case that reaches this Court.

The Court addressed the argument that, although it has not been contended that the present matter falls within the scope of the proviso, it has been suggested that if a Division Court may refer a constitutional question to a Constitution Bench, then a Constitution Bench should also be empowered to refer questions that are not of constitutional importance to a Division Court. The Court rejected this reasoning, stating that the Constitution expressly contemplates the former scenario, but provides no basis for the latter, and no rules exist to support such a referral. The Court further observed that splitting a case into parts—one part involving constitutional questions and the other part not involving such questions—is not prohibited by the Constitution. However, the Court emphasized that when the Constitution has made a specific provision for dividing a case into segments, assigning the segment that raises a constitutional issue to a higher court such as a Constitution Bench and assigning the remaining segment to a lower court such as a Division Court, the argument that any other division is permissible does not hold. In other words, the Constitution’s explicit provision for such a split limits the courts’ authority to re-allocate questions beyond what the Constitution permits.

In considering whether a case could be divided in a manner not expressly provided for by the Constitution, the Court observed that the statutes dealing with criminal procedure did contain provisions that allowed the same proceeding to be heard in part by different courts. However, those statutes applied only to courts that possessed the same level of jurisdiction and therefore did not raise any question about a court’s authority over the subject-matter of the case. In the statutory scheme, each court that originally took up the matter and each court that later determined it was fully competent to hear the entire case or any portion of it. The present situation was different because the case was not before courts of co-ordinate jurisdiction. The petitioner argued that his appeal raised substantial questions of law concerning the interpretation of the Constitution and that, because the appeal did not fall within the scope of the proviso to clause (3) of Article 145, the matter should have been heard entirely by a Constitution Bench. The respondent countered that once the Constitution Bench had dealt with the constitutional issues, the remaining issues no longer involved constitutional questions and therefore could be decided by a Division Court. The Court found difficulty in accepting that view, pointing out that when a Constitution Bench has taken cognizance of a case, it cannot refer part of the case to another bench for the purpose of sharing the decision. The Constitution Bench was required to hear the whole case and it possessed no power to direct, nor did it ever direct, that the remainder of the case be tried by a Division Court.

The Court further explained that once a Constitution Bench was seized of a matter, it was obligated to continue hearing that matter to its conclusion. No rule created by this Court provided a mechanism by which a case, after coming before a Constitution Bench, could be transferred automatically or by any authority to a Division Court. A suggestion was made that a Constitution Bench might commence hearing a case and, before the hearing was completed, a judge might die or become otherwise unable to continue, in which event the Chief Justice could constitute a new bench. The Court clarified that such a circumstance was distinct because the earlier hearing would then be of no effect and the newly constituted bench would have to start the hearing anew, addressing the entire case from the beginning. The Court also rejected a submission that the term “case” could be interpreted to mean only a part of a case. It held that accepting such a construction would undermine the clear language of the main clause of Article 145 and would allow a Constitution Bench to decide only the constitutional questions while leaving the remaining issues to a Division Court, even in cases that the proviso expressly excludes from its operation.

It was observed that accepting the view that a “case” could include only a part of a case would render the main clause (3) of article 145 ineffective. Article 132 of the Constitution had already been excluded from the operation of the proviso to clause (3). The Court considered a hypothetical situation in which an appeal was brought under article 132 because the matter involved substantial questions of law concerning the interpretation of the Constitution, and that appeal also raised other questions. If the argument that a “case” could consist of a part of a case were accepted, then a Constitution Bench would be permitted to hear the constitutional questions and leave the remaining issues to be decided by a Division Court, even though such an appeal was expressly excluded from the proviso and therefore fell within the ordinary scope of clause (3). Consequently, every matter that came before the Court involving a constitutional question could be dealt with partially by a Constitution Bench for the constitutional issue and partially by a Division Court for the other issues. The Court held that this outcome was not intended by the framers of the Constitution; therefore, the term “case” must be understood to mean the whole matter in controversy before the Court. Such a whole matter might contain several questions, but if the resolution of one question was sufficient to dispose of the entire case, that would be within the meaning of the Explanation to article 132 of the Constitution. The Court also addressed the submission of the learned Attorney-General that clause (3) of article 145 and its proviso should be read together. Even when read together, the language of clause (3) did not justify the piecemeal hearing of a case by different benches unless the matter fell within the limited class covered by the proviso. The proviso was intended only to address a narrow class of cases that would otherwise be covered by the main clause (3). It could not have a broader effect than its wording allowed, namely that only a question of the description in the proviso needed to be referred to a larger bench while the case itself remained on the file of the smaller bench. Thus, the proviso created a clear distinction between a “case” and a “question.” The Court further rejected the contention that it possessed an inherent power to conduct its business according to an “established practice.” It noted that the Court was still in its formative stage and could not claim an established practice, and that it could not create a practice that conflicted with the constitutional provisions it was bound to uphold. The reference to the Privy Council decision in Moulvi Muhammad Abdul Majid v. Muhammad Abdul Aziz (L.R. 24 I.A. 22) was deemed inappropriate because, in that case, both stages of the trial were to be heard by a court of co-ordinate jurisdiction capable of deciding the whole case or each part separately, unlike the present situation where two courts of unequal authority had conducted different parts of the hearing. Similarly, reliance on the maxim “cursus curiae est lex curiae” of Coke C.J., cited in Burrowes v. High Commission Court and other authorities, was considered inapplicable because those cases assumed no statutory prohibition against such a practice, whereas the Court held that such a nebulous practice was contrary to the explicit provisions of clause (3) of article 145. Consequently, the Court concluded that the present appeal fell squarely within the main clause (3) of article 145 and was not covered by the proviso, and therefore the petitioner’s appeal had not been heard and determined.

The reference was made to a “court of co-ordinate jurisdiction,” meaning a single court that could either decide the entire dispute or consider each of the two parts of the dispute separately on its own. This description is contrasted with the present situation, where the two portions of the hearing were conducted by two different courts that did not possess equal authority. The judgment also cited the maxim “cursus curiae est lex curiae” attributed to Coke C.J., which appeared in Burrowes v. High Commission Court (3 Bulst. 48, 53). The same maxim was later invoked in Habibar Rahman v. Saidannessa Bibi (I.L.R. 51 Cal. 331, 335) and in several other decisions. Those authorities proceeded on the assumption that no statutory provision prohibited the practice of allowing separate courts to hear different parts of the same case. In the present opinion, however, the learned judge held that such a vague practice conflicts with the explicit requirements of clause (3) of article 145. Accordingly, the judge concluded that the case falls squarely within the main clause (3) of article 145 of the Constitution and is not within the scope of the proviso attached to that clause. Because the appeal was not heard and decided according to the constitutional procedure prescribed in article 145, the petitioner is entitled to the protection guaranteed by article 21 of the Constitution. Consequently, the appeal must be heard and decided in conformity with the procedure laid down in article 145(3) of the Constitution. The petition was therefore permitted, but only to the extent that the appeal should be heard before a Constitution Bench. It was also ordered that the judgment of the Division Court dated 5 March 1954 be declared to have been rendered by a court lacking competence. In the conclusion, the Court, adhering to the majority view, entered an order dismissing the petition and refusing any further relief.