Part-II. Reference to Larger Bench does not render ineffective the precedential value of the referred matter.

         In the previous article (Part-I), the question of law considered was in light of a Recall Application filed by the Central Bureau of Investigation against the Final Judgment in a matter titled as Ritu Chhabaria Versus Union of India & Ors. bearing Writ Petition (Criminal) No. 60 of 2023 decided on 26.04.2023 reported in 2023 LiveLaw (SC) 352.

         It is stated that the Ld. Division Bench of Hon’ble Supreme Court of India in Judgebir Singh @ Jasbir Singh @ Jasbir and Ors. Versus National Investigation Agency in Crl. Appeal No. 1011 of 2023 decided on 01.05.2023 had noticed Ritu Chhabaria (supra) in Para 60 to 62, however it was held that the ‘facts were altogether different‘ and that ‘In the case on hand, the chargesheet was filed after the entire investigation was completed. This fact is not in dispute.‘. No disagreement with Ritu Chhabaria (supra) was mentioned therein.

         In continuation of Part-I, additional pertinent questions which arise are:

(A) Under what circumstances can a disagreement with a coordinate bench decision be referred to a larger bench by a coordinate bench?

(B) What is the precedential value of the final judgment which is referred to a Larger Bench?

I. Final judgment by Supreme Court is not subject to ‘Appeal’ before any another Bench of any strength:

         One undisputed facet since time immemorial is that a final judgment passed by the Hon’ble Supreme Court is not subject to ‘Appeal’ before any another Bench of any strength.

                  A Constitution Bench in Sub-Committee of Judicial Accountability v. Union of India, (1992) 4 SCC 97 held that:

            5. … … Indeed, no co-ordinate bench of this Court can even comment upon, let alone sit in judgment over, the discretion exercised or judgment rendered in a cause or matter before another co-ordinate bench. If a request is made that a Judge should refuse to hear a matter either on the ground that there was a reasonable apprehension or likelihood of bias or on any similar or other grounds, the decision on it is exclusively that of the particular Judge or the bench of which he is a member. At that stage, another co-ordinate bench cannot be invited to examine and pronounce on this question. It is for that bench and that bench alone to decide that question. Judicial propriety and discipline as well as what flows from the circumstance that each division bench of this Court functions as the court itself renders any interference by one bench with a judicial matter before another lacking as much in propriety as in jurisdiction.

(emphasis supplied)

         In K.G. Arumugham v. K.A. Chinnappan 2005 (2) SCC 793, an issue arose where a second litigation was initiated between the same parties, and a conflicting decision was passed by the High Court.It was held that a Single Judge cannot proceed as if was hearing an Appeal against an earlier order. It was held as under:

            “… The High Court in its previous order had held that the prices had gone up a few times over the original price. Third party rights had also come into existence. Passing of a decree for specific performance would cause great prejudice to the appellants and that the respondents were not entitled to the relief for specific performance. This had become final between the parties. Review Petition No. 276 of 1988 filed by the respondents seeking review of the order dated 6.11.1987 was dismissed on 29.4.1998. The present attempt of the respondents was an attempt in the nature of a second review of the order dated 6.11.1987 which could not be permitted. By the impugned order, the Single Judge has virtually reviewed the earlier order passed by the High Court which it could not do. The learned Single Judge has proceeded in the matter as if it was hearing an appeal against the earlier order passed by the Single Judge in CRP No. 3226 of 1987 or as if it was sitting in review jurisdiction.… ”

(emphasis supplied)

         A remedy against a judgment has to be provided by the Constitution of India or any other provision of law.  

 

        Elaborating on this, in Vishnu Awatar v. Shiv Autar, (1980) 4 SCC 81, V.R. Krishna Iyer, J., observed as under:

            9. After all, our District Courts are easier of access for litigants, and the High Courts, especially in large States like Uttar Pradesh, are “untouchable” and “unapproachable” for agrestic populations and even urban middle classes. Nor is there ground to distrust the District Judges. A hierarchy of courts built upon a heritage of disbelief in inferiors has an imperial flavour. If we suspect a Munsif and put a District Judge over him for everything he does, if we distrust a District Judge and vest the High Court with pervasive supervision, if we be skeptical about the High Courts and watch meticulously over all their orders, the system will break down as its morale will crack up. A psychic communicable disease of suspicion, skepticism and servility cannot make for the health of the judicial system. If the Supreme Court has a super-Supreme Court above it, who knows how many of its verdicts will survive, judging by the frequency with which it differs from itself.

(emphasis supplied)

         The Court system being pyramidal in structure makes the Supreme Court as the Court of last resort. Ref: Balraj Singh Malik v. Supreme Court of India, 2012 SCC OnLine Del 897, Para 29.

         Even as regards a District Court, in Arnab Manoranjan Goswami v. State of Maharashtra, (2021) 2 SCC 427 : 2020 SCC OnLine SC 964, it was held that “Our district judiciary is wrongly referred to as the “subordinate judiciary”. It may be subordinate in hierarchy but it is not subordinate in terms of its importance in the lives of citizens or in terms of the duty to render justice to them.”

II. Without compelling and substantial reasons, court should be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions:

         In Keshav Mills Co. Ltd. v. CIT, (1965) 2 SCR 908 : AIR 1965 SC 1636 : (1965) 56 ITR 365, the Constitutional Bench of Seven-Judge Bench was considering the question as to whether New Jehangir Vakil Mills Ltd. v. CIT, (1960) 1 SCR 249 (Three Judge Bench) and New Jehangir Vakil Mills Ltd. v. CIT, (1960) 1 SCR 249 (Constitutional Bench) should be reconsidered or not. After laying down the principles for consideration, the Court did not find that a case was made out to review and revise the previous decisions. It was held as under:

            23. In dealing with the question as to whether the earlier decisions of this Court in New Jehangir Mills case [(1960) 1 SCR 249] , and Petlad Co. Ltd. case [(1963) Supp 1 SCR 871 : AIR 1959 SC 1177] should be reconsidered and revised by us, we ought to be clear as to the approach which should be adopted in such cases. Mr Palkhivala has not disputed the fact that in a proper case, this Court has inherent jurisdiction to reconsider and revise its earlier decisions, and so, the abstract question as to whether such a power vests in this Court or not need not detain us. In exercising this inherent power, however, this Court would naturally like to impose certain reasonable limitations and would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so. It is general judicial experience that in matters of law involving questions of construing statutory or constitutional provisions, two views are often reasonably possible and when judicial approach has to make a choice between the two reasonably possible views, the process of decision making is often very difficult and delicate. When this Court hears appeals against decisions of the High Courts and is required to consider the propriety or correctness of the view taken by the High Courts on any point of law, it would be open to this Court to hold that though the view taken by the High Court is reasonably possible, the alternative view which is also reasonably possible is better and should be preferred. In such a case, the choice is between the view taken by the High Court whose judgment is under appeal, and the alternative view which appears to this Court to be more reasonable; and in accepting its own view in preference to that of the High Court, this Court would be discharging its duty as a court of appeal. But different considerations must inevitably arise where a previous decision of this Court has taken a particular view as to the construction of a statutory provision as, for instance, Section 66(4) of the Act. When it is urged that the view already taken by this Court should be reviewed and revised, it may not necessarily be an adequate reason for such review and revision to hold that though the earlier view is a reasonably possible view, the alternative view which is pressed on the subsequent occasion is more reasonable. In reviewing and revising its earlier decision, this Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised. When this Court decides questions of law, its decisions are, under Article 141, binding on all courts within the territory of India, and so, it must be the constant endeavour and concern of this Court to introduce and maintain an element of certainty and continuity in the interpretation of law in the country. Frequent exercise by this Court of its power to review its earlier decisions on the ground that the view pressed before it later appears to the Court to be more reasonable, may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided. That is not to say that if on a subsequent occasion, the Court is satisfied that its earlier decision was clearly erroneous, it should hesitate to correct the error; but before a previous decision is pronounced to be plainly erroneous, the Court must be satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified. It is not possible or desirable, and in any case it would be inexpedient to lay down any principles which should govern the approach of the Court in dealing with the question of reviewing and revising its earlier decisions. It would always depend upon several relevant considerations:—What is the nature of the infirmity or error on which a plea for a review and revision of the earlier view is based? On the earlier occasion, did some patent aspects of the question remain unnoticed, or was the attention of the Court not drawn to any relevant and material statutory provision, or was any previous decision of this Court bearing on the point not noticed? Is the Court hearing such plea fairly unanimous that there is such an error in the earlier view? What would be the impact of the error on the general administration of law or on public good? Has the earlier decision been followed on subsequent occasions either by this Court or by the High Courts? And, would the reversal of the earlier decision lead to public inconvenience, hardship or mischief? These and other relevant considerations must be carefully borne in mind whenever this Court is called upon to exercise its jurisdiction to review and revise its earlier decisions. These considerations become still more significant when the earlier decision happens to be a unanimous decision of a Bench of five learned Judges of this Court.

(emphasis supplied)

         The principles laid down are as under:

1. There are certain reasonable limitations and the Court would be reluctant to entertain pleas for the reconsideration and revision of its earlier decisions, unless it is satisfied that there are compelling and substantial reasons to do so;

2. In matters of law, two views are often reasonable, however, merely because an alternative view which is pressed on the subsequent occasion is more reasonable, reconsideration of Supreme Court judgment would not follow;

2.1. Better alternative view of Supreme Court over High Court’s reasonable view can be preferred, as a Court of Appeal,

2.2. Such is, however, not a consideration while considering a reasonable view of Supreme Court as against better alternative view.

3. Different considerations must inevitably arise where a previous decision of the Supreme Court has taken a particular view as to the construction of a statutory provision.

4. In reviewing and revising its earlier decision, the Court should ask itself whether in the interests of the public good or for any other valid and compulsive reasons, it is necessary that the earlier decision should be revised.

5. Frequent exercise of its power to review its earlier decisions may incidentally tend to make law uncertain and introduce confusion which must be consistently avoided.

6. If the earlier decision was clearly erroneous, the Court should hesitate to correct the error, once it is satisfied with a fair amount of unanimity amongst its members that a revision of the said view is fully justified.

         Following the above, in Sarva Shramik Sangh v. Indian Smelting Co. Ltd. 2003(10) SCC 455, it was held as under:

            25. That apart, as held by a seven-member Constitution Bench judgment of this Court in Keshav Mills case [AIR 1965 SC 1636 : (1965) 2 SCR 908] though this Court has inherent jurisdiction to reconsider and revise its earlier decisions, it would at the same time be reluctant to entertain such pleas unless it is satisfied that there are compelling and substantial reasons to do so and not undertake such an exercise merely for the asking or that the alternate view pressed on the subsequent occasion is more reasonable. For the reasons stated supra, we are of the view that the decision in Cipla case [(2001) 3 SCC 101 : 2001 SCC (L&S) 520] was taken not only in tune with the earlier decisions of this Court in General Labour Union (Red Flag) case [1995 Supp (1) SCC 175 : 1995 SCC (L&S) 372] and Vividh Kamgar Sabha case [(2001) 2 SCC 381 : 2001 SCC (L&S) 436] but quite in accordance with the subject of the enactment and the object which the legislature had in view and the purpose sought to be achieved by the Maharashtra Act and consequently, there is no scope or necessity to reconsider the question once over again by a larger Bench.

(emphasis supplied)

III. Co-ordinate Bench can refer the matter to larger bench, after indicating the reason for disagreement with the decision of another co-ordinate bench:

         Having said that, a co-ordinate bench, if it prima facie disagrees with a ratio of another judgment, can, after indicating the reasons for such disagreement, refer the said conflict to a larger bench.

         Then, the larger bench does not sit in ‘Appeal’ over any of the final judgments but decides the issue referred to the larger bench, in light of the applicable law(s).

         In Rajasthan Public Service Commission and Ors. v. Harish Kumar Purohit and Ors. (2003) 5 SCC 480, the Hon’ble Supreme Court after considering a three- Judge Bench decision in State of Tripura v. Tripura Bar Association and Ors. (AIR 1999 SC 1494), held thus:

            “12. Before parting with the case we would like to point out one disturbing feature which has been brought to our notice. On 13-12-2001 a Division Bench dismissed an application containing identical prayers. Even before the ink was dry on the judgment, by the impugned judgment, another Division Bench took a diametrically opposite view. It is not that the earlier decision was not brought to the notice of the subsequent Division Bench hearing the subsequent applications. In fact, a reference has been made by the submissions made by the Commission where this decision was highlighted. Unfortunately, the Division Bench hearing the subsequent applications did not even refer to the conclusions arrived at by the earlier Division Bench. The earlier decision of the Division Bench is binding on a Bench of coordinate strength. If the Bench hearing matters subsequently entertains any doubt about the correctness of the earlier decision, the only course open to it is to refer the matter to a larger Bench.

            13. The position was highlighted by this Court in a three-Judge Bench decision in State of Tripura v. Tripura Bar Assn. [(1998) 5 SCC 637 : 1998 SCC (L&S) 1426] in the following words : (SCC p. 639, para 4)

            “4. We are of the view that the Division Bench of the High Court which has delivered the impugned judgment being a coordinate Bench could not have taken a view different from that taken by the earlier Division Bench of the High Court in the case of Durgadas Purkayastha v. Hon’ble Gauhati High Court [(1988) 1 Gau LR 6] . If the latter Bench wanted to take a view different than that taken by the earlier Bench, the proper course for them would have been to refer the matter to a larger Bench. We have perused the reasons given by the learned Judges for not referring the matter to a larger Bench. We are not satisfied that the said reasons justified their deciding the matter and not referring it to the larger Bench. In the circumstances, we are unable to uphold the impugned judgment of the High Court insofar as it relates to the matter of inter se seniority of the Judicial Officers impleaded as respondents in the writ petition. The impugned judgment of the High Court insofar as it relates to the matter of seniority of the respondent Judicial Officers is set aside. The appeals are disposed of accordingly. No costs.”

            14. In the instant case, the position is still worse. The latter Bench did not even indicate as to why it was not following the earlier Bench judgment though brought to its notice. Judicial propriety and decorum warranted such a course indicated above to be adopted.”     

(emphasis supplied)

         The Constitutional Bench in Pradip Chandra Parija v. Pramod Chandra Patnaik, (2002) 1 SCC 1 : 2001 SCC OnLine SC 1421 held as under:

            6. In the present case the Bench of two learned Judges has, in terms, doubted the correctness of a decision of a Bench of three learned Judges. They have, therefore, referred the matter directly to a Bench of five Judges. In our view, judicial discipline and propriety demands that a Bench of two learned Judges should follow a decision of a Bench of three learned Judges. But if a Bench of two learned Judges concludes that an earlier judgment of three learned Judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to refer the matter before it to a Bench of three learned Judges setting out, as has been done here, the reasons why it could not agree with the earlier judgment. If, then, the Bench of three learned Judges also comes to the conclusion that the earlier judgment of a Bench of three learned Judges is incorrect, reference to a Bench of five learned Judges is justified.

(emphasis supplied)

IV. The full width and amplitude of the prepositions of law laid down in a case cannot be suspended by a co-ordinate bench:

         In Union of India v. Godfrey Philips India Ltd. (1985) 4 SCC 369 noting that a Two-Judge Bench in Jit Ram Shiv Kumar v. State of Haryana (1981) 1 SCC 11 had taken a different view from earlier Two-Judge Bench decision in Motilal Padampat Sugar Mills v. State of U.P. (1979) 2 SCC 409, held as under:

            We find it difficult to understand how a Bench of two Judges in Jeet Ram’s case could possibly overturn or disagree with what was said by another Bench of two Judges in Motilal Sugar Mills Case. If the Bench of two Judges in Jeet Ram’s case found themselves unable to agree with the law laid down in Motilal Sugar Mills case, they could have referred Jeet Ram’s case to a larger Bench, but we do not think it was right on their part to express their disagreement with the enunciation of the law by a coordinate Bench of the same Court in Motilal Sugar Mills case. We have carefully considered both the decision in Motilal Sugar Mills and Jeet Ram’s case and we are clearly of the view that what has been laid down in Motilal Sugar Mills case represents the correct law in regard to the doctrine of promissory estoppel and we express our disagreement with the observations in Jeet Ram’s case to the extent that they conflict with the statement of the law in Motilal Sugar Mills case and introduce reservations cutting down the full width and amplitude of the prepositions of law laid down in that case.

(emphasis supplied)

In Official Liquidator v. Dayanand, (2008) 10 SCC 1 : (2009) 1 SCC (L&S) 943 : 2008 SCC OnLine SC 1632 (Three Judge Bench), it was held as under:

            90. We are distressed to note that despite several pronouncements on the subject, there is substantial increase in the number of cases involving violation of the basics of judicial discipline. The learned Single Judges and Benches of the High Courts refuse to follow and accept the verdict and law laid down by coordinate and even larger Benches by citing minor difference in the facts as the ground for doing so. Therefore, it has become necessary to reiterate that disrespect to the constitutional ethos and breach of discipline have grave impact on the credibility of judicial institution and encourages chance litigation. It must be remembered that predictability and certainty is an important hallmark of judicial jurisprudence developed in this country in the last six decades and increase in the frequency of conflicting judgments of the superior judiciary will do incalculable harm to the system inasmuch as the courts at the grass roots will not be able to decide as to which of the judgments lay down the correct law and which one should be followed.

            91. We may add that in our constitutional set-up every citizen is under a duty to abide by the Constitution and respect its ideals and institutions. Those who have been entrusted with the task of administering the system and operating various constituents of the State and who take oath to act in accordance with the Constitution and uphold the same, have to set an example by exhibiting total commitment to the constitutional ideals. This principle is required to be observed with greater rigour by the members of judicial fraternity who have been bestowed with the power to adjudicate upon important constitutional and legal issues and protect and preserve rights of the individuals and society as a whole. Discipline is sine qua non for effective and efficient functioning of the judicial system. If the courts command others to act in accordance with the provisions of the Constitution and rule of law, it is not possible to countenance violation of the constitutional principle by those who are required to lay down the law.

(emphasis supplied)

V. Pendency of a reference to a larger Bench does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference and the same not make the referred case ineffective or the precedential value stayed:

         Once a final judgment is passed, the same becomes a binding precedent in terms of Article 141 of the Constitution of India. Merely because the same is referred to a larger bench, the same does not make it ineffective nor is the same to be considered as stayed. A binding precedent is binding until it is overruled by another final judgment.

         Even in case a final decision is passed by a High Court if stayed by the Supreme Court, the same does not mean that it has been wiped out from existence and the same continues to be binding on lower courts and subordinate courts. (Ref: Shree Chamundi Mopeds Ltd. v. Church of South India Trust Assn., MANU/SC/0501/1992)

         Such being the case, at the least, a similar, if not higher status, ought to be given to a final judgment passed by the Supreme Court.

         Rendering ineffective, at an interim stage, the binding value of a final judgment of the Supreme Court also leads to an undesirable result of uncertainty amongst all stakeholders. All cases involving the same issue cannot be deferred indefinitely nor can they be stayed, as the consequences of the same are grave and adverse.

         In Ashok Sadarangani and Ors. vs. Union of India (UOI) and Ors. MANU/SC/0209/2012 : AIR 2012 SC 1563, it was held as under:

            16. The learned Additional Solicitor General contended that having regard to the divergent views expressed by different Benches of this Court, when the same issue surfaced in Gian Singh v. State of Punjab and Anr. SLP (Crl.) No. 8989 of 2010, wherein the decisions in B.S. Joshi’s case, Nikhil Merchant’s case and Manoj Sharma’s case (supra) came to be considered, the Bench comprised of two Judges, was of the view that the said decisions required reconsideration and directed that the matter be placed before a larger Bench to consider the correctness of the said three decisions. Shri Jain urged that as the same issue which was involved in the present case was also the subject matter of the reference to a larger Bench, this Court should abstain from pronouncing judgment on the issue which was the subject matter in the said reference. Shri Jain urged that in the circumstances mentioned hereinabove, no relief could be given to the Petitioners on the writ petition and the same was liable to be dismissed.

… … 

            19. As was indicated in Harbhajan Singh’s case (supra), the pendency of a reference to a larger Bench, does not mean that all other proceedings involving the same issue would remain stayed till a decision was rendered in the reference. The reference made in Gian Singh’s case (supra) need not, therefore, detain us. Till such time as the decisions cited at the Bar are not modified or altered in any way, they continue to hold the field.

(emphasis supplied)

         In Prem Kumar v. High Court of Delhi, (2014) 14 SCC 417, it was observed that “The learned Senior Counsel has very fairly stated that since the judgment in K.M. Mathew case [K.M. Mathew v. State of Kerala, (1992) 1 SCC 217 : 1992 SCC (Cri) 88] had been only referred to a larger Bench, it was still a binding precedent and had to be followed”.