Sri Surja Sekhar Deb vs The State Of Tripura & Others
2024 Latest Caselaw 1447 Tri

Tripura High Court

Sri Surja Sekhar Deb vs The State Of Tripura & Others on 3 September, 2024

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                        HIGH COURT OF TRIPURA
                              AGARTALA
                             WP(C) No.566 of 2022
Sri Surja Sekhar Deb
                                                            .........Petitioner(s);
                            VERSUS
The State of Tripura & others
                                                           .........Respondent(s)

For Petitioner(s)         : Mr. S. Lodh, Advocate,
                            Mr. S. Majumder, Advocate.
For Respondent(s)         : Mr. D. Sarma, Addl. G.A.
   HON'BLE THE CHIEF JUSTICE MR. APARESH KUMAR SINGH
         HON'BLE MR. JUSTICE S.D. PURKAYASTHA
                                     Order
03/09/2024

The matter has been placed on the reference made by the learned

Single Bench by order dated 25.04.2023 for referring the matter to larger Bench

for proper adjudication in view of the two conflicting Bench judgments.

We have heard learned counsel for the parties and gone through

both the decisions - one rendered by the learned Division Bench on 22.11.2018

in WA No.45/2014 and the later one delivered on 07.01.2020 in WP(C)

No.03/2019.

On comparison of the findings rendered in both the cases, we find

that the learned Coordinate Bench in the subsequent decision has clearly come

to an opinion that the earlier decision by a Coordinate Bench of this Court in

WA No.45/2014 was per incuriam as the precise terms of the scheme of die-in-

harness were not referred to, nor the learned Division Bench had the benefit of

various decisions of the Supreme Court taken note of in the later judgment.

Moreover, the learned Division Bench in WP(C) No.03/2019 held that the

inherent limitation of one year for making application for compassionate

appointment accrues from the date of death of the government servant which

was not brought to the notice of the learned Division Bench. The proposition in

law is clear that the later Coordinate Bench can hold the earlier decision of the

Court as per incuriam if all relevant materials were not raised and considered

by the previous Bench. Reference is made to the decision rendered by the Apex

Court in case of A.R. Antulay versus R.S. Nayak and another, reported in

(1988) 2 SCC 602 at paragraphs 38, 42 50, 58 and 62 of the report, which are

extracted hereunder:

"38. While applying the ratio to the facts of the present controversy, it has to be borne in mind that Section 7(1) of the 1952 Act creates a condition which is sine qua non for the trial of offenders under Section 6(1) of that Act. In this connection, the offences specified under Section 6(1) of the 1952 Act are those punishable under Sections 161, 162, 163, 164 and 165-A of the Penal Code, 1860 and Section 5 of the 1947 Act. Therefore, the order of this Court transferring the cases to the High Court on 16-2-1984, was not authorised by law. This Court, by its directions could not confer jurisdiction on the High Court of Bombay to try any case which it did not possess such jurisdiction under the scheme of the 1952 Act. It is true that in the first judgment in A.R. Antulay v. Ramdas Sriniwas Nayak [(1984) 2 SCC 500 : 1984 SCC (Cri) 277 :

(1984) 2 SCR 914] when this Court was analysing the scheme of the 1952 Act, it referred to Sections 6 and 7 at p. 931 of the Reports (SCC pp. 514-

15). The arguments, however, were not advanced and it does not appear that this aspect with its ramifications was present in the mind of the court while giving the impugned directions.

42. It appears that when this Court gave the aforesaid directions on 16-2- 1984, for the disposal of the case against the appellant by the High Court, the directions were given oblivious of the relevant provisions or law and the decision in Anwar Ali Sarkar case [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] . See Hulsbury's Laws of England, 4th Edn., Vol. 26, page 297, para 578 and page 300, the relevant notes 8, 11 and 15; Dias on Jurisprudence, 5th Edn., pages 128 and 130; Young v. Bristol Aeroplane Co. Ltd. [(1944) 2 All ER 293, 300] Also see the observations of Lord Goddard in Moore v. Hewitt [(1947) 2 All ER 270, 272-A] and Penny v. Nicholas [(1950) 2 All ER 89, 92-A] .

"Per incuriam" are those decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned, so that in such cases some part of the decision or some step in the reasoning on which it is based, is found, on that account to be demonstrably wrong. See Morelle v. Wakeling [(1955) 1 All ER 708, 718-F] . Also see State of Orissa v. Titaghur Paper Mills Co. Ltd. [1985 Supp SCC 280 : (1985) 3 SCR 26] We are of the opinion that in view of the clear provisions of Section 7(2) of the Criminal Law Amendment Act, 1952 and Articles 14 and 21 of the Constitution, these directions were legally wrong.

50. This Court by majority held that Rule 12 of Order 35 of the Supreme Court Rules was invalid insofar as it related to the furnishing of security. The right to move the Supreme Court, it was emphasised, under Article 32 was an absolute right and the content of this right could not be circumscribed or impaired on any ground and an order for furnishing security for the respondent's costs retarded the assertion or vindication of the fundamental right under Article 32 and contravened the said

right. The fact that the rule was discretionary did not alter the position. Though Article 142(1) empowers the Supreme Court to pass any order to do complete justice between the parties, the court cannot make an order inconsistent with the fundamental rights guaranteed by Part III of the Constitution. No question of inconsistency between Article 142(1) and Article 32 arose. Gajendragadkar, J., speaking for the majority of the judges of this Court said that Article 142(1) did not confer any power on this Court to contravene the provisions of Article 32 of the Constitution. Nor did Article 145 confer power upon this Court to make rules, empowering it to contravene the provisions of the fundamental right. At page 899 of the Reports, Gajendragadkar, J., reiterated that the powers of this Court are no doubt very wide and they are intended and "will always be exercised in the interests of justice". But that is not to say that an order can be made by this Court which is inconsistent with the fundamental rights guaranteed by Part III of the Constitution. It was emphasised that an order which this Court could make in order to do complete justice between the parties, must not only be consistent with the fundamental rights guaranteed by the Constitution, but it cannot even be inconsistent with the substantive provisions of the relevant statutory laws (emphasis supplied). The court therefore, held that it was not possible to hold that Article 142(1) conferred upon this Court powers which could contravene the provisions of Article 32. It follows, therefore, that the directions given by this Court on 16-2-1984, on the ground of expeditious trial by transferring Special Case No. 24 of 1982 and Special Case No. 3 of 1983 pending in the court of Special Judge, Greater Bombay. Shri S.B. Sule, to the High Court of Bombay with a request to the learned Chief Justice to assign these two cases to a sitting Judge of the High Court was contrary to the relevant statutory provision, namely, Section 7(2) of the Criminal Law Amendment Act, 1952 and as such violative of Article 21 of the Constitution. Furthermore, it violates Article 14 of the Constitution as being made applicable to a very special case among the special cases, without any guideline as to which cases required speedier justice. If that was so as in Prem Chand Garg case [AIR 1963 SC 996 : 1963 Supp (1) SCR 885] , that was a mistake of so great a magnitude that it deprives a man by being treated differently of his fundamental right for defending himself in a criminal trial in accordance with law. If that was so then when the attention of the court is drawn the court has always the power and the obligation to correct it ex debito justitiae and treat the second application by its inherent power as a power of review to correct the original mistake. No suitor should suffer for the wrong of the court. This Court in Prem Chand Garg case [AIR 1963 SC 996 : 1963 Supp (1) SCR 885] struck down not only the administrative order enjoined by Rule 12 for deposit of security in a petition under Article 32 of the Constitution but also struck down the judicial order passed by the court for non-deposit of such security in the subsequent stage of the same proceeding when attention of the court to the infirmity of the rule was drawn. It may be mentioned that Shah, J., was of the opinion that Rule 12 was not violative. For the present controversy it is not necessary to deal with this aspect of the matter.

58. We are clearly of the opinion that the right of the appellant under Article 14 regarding equality before the law and equal protection of law in this case has been violated. The appellant has also a right not to be singled out for special treatment by a Special Court created for him alone. This right is implicit in the right to equality. See Anwar Ali Sarkar case [(1952) 1 SCC 1 : AIR 1952 SC 75 : 1952 SCR 284 : 1952 Cri LJ 510] .

62. We are further of the view that in the earlier judgment the points for setting aside the decision, did not include the question of withdrawal of the case from the court of Special Judge to Supreme Court and transfer it to the High Court. Unless a plea in question is taken it cannot operate, as res judicata. See Shivashankar Prasad Shah v. Baikunth Nath Singh [(1969) 1 SCC 718] , Bikan Mahuri v. Mst Bibi Walian [AIR 1939 Pat 633] . See also S.L. Kapoor v. Jagmohan [(1980) 4 SCC 379 : AIR 1981 SC 136 : (1981) 1 SCR 746] on the question of violation of the principles of natural justice. Also see Maneka Gandhi v. Union of India [(1978) 1

SCC 248, 284-91 : (1978) 2 SCR 621, 674-81] . Though what is mentioned hereinbefore in the Bengal Immunity Co. Ltd. v. State of Bihar [AIR 1955 SC 661 : (1955) 2 SCR 603, 623] the court was not concerned with the earlier decision between the same parties. At page 623 it was reiterated that the court was not bound to follow a decision of its own if it was satisfied that the decision was given per incuriam or the attention of the court was not drawn. It is also well settled that an elementary rule of justice is that no party should suffer by mistake of the court. See Sastri Yagnapurushadji v. Muldas Bhudardas Vaishya [AIR 1966 SC 1119 : (1966) 3 SCR 242] , Jang Singh v. Brijlal [AIR 1966 SC 1631 :

(1964) 2 SCR 145] , Bhajahari Mondal v. State of W.B. [AIR 1959 SC 8 :

1959 SCR 1276, 1284-86 : 1959 Cri LJ 98] and Asgarali N. Singaporawalla v. State of Bombay [AIR 1957 SC 503 : 1957 SCR 678, 692 : 1957 Cri LJ 605] ."

Therefore, we are of the opinion that the position in law declared

by the learned Division Bench of this Court WP(C) No. 03/2019 does not

require reference to a larger Bench as there is apparently no conflict in the two

decisions since the earlier decision in WA No. 45/2014 was per incuriam.

Therefore, the matter be placed before the learned Single Bench for decision on

merits.

(S.D. PURKAYASTHA), J                                           (APARESH KUMAR SINGH), CJ




Pijush/

MUNNA SAHA Digitally signed by MUNNA SAHA
           Date: 2024.09.21 15:12:58 +05'30'