# RAO SHIVA BAHADUR SINGH v. THE STATE OF VINDHYA PRADESH AND

- **Citation:** [1955] 2 S.C.R. 206
- **Court:** Supreme Court of India
- **Decided:** 1955
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/rao-shiva-bahadur-singh-v-the-state-of-vindhya-pradesh-and-1488
- **Pages:** 19

## Headnote

19S5
Raf .Kali }(11er
••
Ram Ratu1n
Pa11dey
Jagannadhadas.J.
1555
April 7
206
SUPREME COURT REPORTS
(1955]
that tht: claim of the plantiff-appellant is made out
and that she is entitled to succeed.
The:: discussion above. is more germane to the case
·of a public t«mple wherein the idol has been Shastrically installed and consecrated and the worship is in
accordance with the Shastras. There is nothing on
the record to shbw whether the temple in this case
falls within this category. If; however, the temple
~s a private one or idol therein is not one Shastri·
cal!y consecrated, the case in favour of the plaintiff
is much stronger and her right cannot be seriotisly
challenged.
At this stage, it is desirable to mention
one other matter.
In the present case the
emoluments attached to the office ar.e stated to be the daily
and other offerings made to the deity at the worship
hy the visiting devotees.
Both the parties to thi~
case have come up to Court on the common footing
that it is this which constitutes the emoluments.
Whether and how far such votive offerings can be
appropriated by a Pujari for his emoluments if the
temple is a public
institution,
(i.e., not a private
famiiy temple) and whether any usage i'l this behalf
is valid is a matter which does not arise before us in
this case.
In the result, the appeal must be allowed with costs
throughout and the decree of the trial court must he
restored.
RAO SHIVA BAHADUR SINGH
v.
THE STATE OF VINDHYA PRADESH AND
ANOTHER
fMUKHERJEA C.J., S. R. DAS, VIVIAN BOSE, STNHA
and IMAM J.T.]
.
Constitution of India-Art. 145(3)-Cottstruction of-Supreme
Court-Whether competent to split Up the case for ~he purpose of
hearing and decision.
Held (Per MUKHERJEA C:T, DAS, VIVIAN HOSE. and IMAM .TJ
SINHA J. dissentini:) that a Constitution Bench of five or more
Judges before which a cace happrns to be posted in the first. instance
2S.C.R.
SUPREME COURT REPORTS
207
is competent to split up the case by deciding the constitutional questions and leaving the rest of the case to be dealt with ai:id disposecl
of by a Division Bench of less than five Judges on merits in conformity with the opinion of the Constitution Bench.
The splitting up of cases in~o different stages fol' hearing and
decision is not repugnant to the Constitution or the general principles of procedural law. The underlying principle of the Constitution
is clear and all that it insists upon is that all Constitution questions
should be heard and decided by a Bench of not less than five
Judges.
As long as this
requirement
is
fulfilled
there
can
be no constitutional objection to the rest of the case being disposed
of by a Division Bench of less than five Judges, so as to saYe the
time of the Constitution Bench of five or more Judges.
There is no general rule of indivisibility of a case for the purpose of its hearing and decision : vide proviso to Article 145(3) and
Article 228 of the Constitution, s. 24' and Order 18, Rule 15 of the
Code of Civil Procedure and ss. · 350, 526, 528 and 556 of the Cod'!
of Criminal Procedure.
Article 145(3) of the Constitu:ion cannot be so construed as to
deprive the Supreme Court of the. inherent power of splitting up a
case for the purpose of hearing and decision.
Per SINHA J.-The Constitution while laying. down clause (3)
of Article 145, contemplates the whole matter in controversy arising
in a 1.:a,e, which may include substantial questions of law as to the
interpretation of the Coastitution as also other questions. The
main clause (3), excepting cases coming wjthin the purview of the
proviso, d<'cs not contemplate a splitting up of a case into parts, one
part involving substantial questions of law as to the interpretation
oF the Cons;itution and another part .or parts not involving such
questions.
The language ot dausc (3) of Article 145 does not warrant the
hearing of a case. pie(:cmeal by different Benches unless it comes
within the purview. of the proviso. The proviso is meant to cover
onlv a limit('d class

## Text

_Characters 0–39,603 of 43,087. This is a partial read: ask again with offset=39603 for what follows._

19S5
Raf .Kali }(11er
••
Ram Ratu1n
Pa11dey
Jagannadhadas.J.
1555
April 7
206
SUPREME COURT REPORTS
(1955]
that tht: claim of the plantiff-appellant is made out
and that she is entitled to succeed.
The:: discussion above. is more germane to the case
·of a public t«mple wherein the idol has been Shastrically installed and consecrated and the worship is in
accordance with the Shastras. There is nothing on
the record to shbw whether the temple in this case
falls within this category. If; however, the temple
~s a private one or idol therein is not one Shastri·
cal!y consecrated, the case in favour of the plaintiff
is much stronger and her right cannot be seriotisly
challenged.
At this stage, it is desirable to mention
one other matter.
In the present case the
emoluments attached to the office ar.e stated to be the daily
and other offerings made to the deity at the worship
hy the visiting devotees.
Both the parties to thi~
case have come up to Court on the common footing
that it is this which constitutes the emoluments.
Whether and how far such votive offerings can be
appropriated by a Pujari for his emoluments if the
temple is a public
institution,
(i.e., not a private
famiiy temple) and whether any usage i'l this behalf
is valid is a matter which does not arise before us in
this case.
In the result, the appeal must be allowed with costs
throughout and the decree of the trial court must he
restored.
RAO SHIVA BAHADUR SINGH
v.
THE STATE OF VINDHYA PRADESH AND
ANOTHER
fMUKHERJEA C.J., S. R. DAS, VIVIAN BOSE, STNHA
and IMAM J.T.]
.
Constitution of India-Art. 145(3)-Cottstruction of-Supreme
Court-Whether competent to split Up the case for ~he purpose of
hearing and decision.
Held (Per MUKHERJEA C:T, DAS, VIVIAN HOSE. and IMAM .TJ
SINHA J. dissentini:) that a Constitution Bench of five or more
Judges before which a cace happrns to be posted in the first. instance
2S.C.R.
SUPREME COURT REPORTS
207
is competent to split up the case by deciding the constitutional questions and leaving the rest of the case to be dealt with ai:id disposecl
of by a Division Bench of less than five Judges on merits in conformity with the opinion of the Constitution Bench.
The splitting up of cases in~o different stages fol' hearing and
decision is not repugnant to the Constitution or the general principles of procedural law. The underlying principle of the Constitution
is clear and all that it insists upon is that all Constitution questions
should be heard and decided by a Bench of not less than five
Judges.
As long as this
requirement
is
fulfilled
there
can
be no constitutional objection to the rest of the case being disposed
of by a Division Bench of less than five Judges, so as to saYe the
time of the Constitution Bench of five or more Judges.
There is no general rule of indivisibility of a case for the purpose of its hearing and decision : vide proviso to Article 145(3) and
Article 228 of the Constitution, s. 24' and Order 18, Rule 15 of the
Code of Civil Procedure and ss. · 350, 526, 528 and 556 of the Cod'!
of Criminal Procedure.
Article 145(3) of the Constitu:ion cannot be so construed as to
deprive the Supreme Court of the. inherent power of splitting up a
case for the purpose of hearing and decision.
Per SINHA J.-The Constitution while laying. down clause (3)
of Article 145, contemplates the whole matter in controversy arising
in a 1.:a,e, which may include substantial questions of law as to the
interpretation of the Coastitution as also other questions. The
main clause (3), excepting cases coming wjthin the purview of the
proviso, d<'cs not contemplate a splitting up of a case into parts, one
part involving substantial questions of law as to the interpretation
oF the Cons;itution and another part .or parts not involving such
questions.
The language ot dausc (3) of Article 145 does not warrant the
hearing of a case. pie(:cmeal by different Benches unless it comes
within the purview. of the proviso. The proviso is meant to cover
onlv a limit('d class of cases which otherwise would have come within the purview of the main clause (3). But the proviso c~nnot have
a larger effect than is justified by its language. viz., that only a question of that description has to be referred for the opinion. of the
larger Bench. the case itself remaining on the file of the smaller
Bench. The proviso th.tis makes a clear distinction between a "case''
and a "question".
Maufoi Muhammad Abdul Majid v. Muhammad Abdul Aziz
!L.R. 24 I.A. 22), Burrowe~ v. High Commission Court (3 Buist.
48) and Hobibar Rahman v. Saidannessa Bibi (l.L.R. 51 Cal. 331),
referred to.
ORIGINAL JURISDICTION.
Petition No. 40 of 1955:
lJnder Article 32 of the Constitution for a Writ
of Ha/was Corp11s.
19$5
Rao Shiva
Bohadur Singh
·v.
The Stale of
Vimlhya Pradesh
and lllWlh~r ·
1955
Rao Shiva.
Baltadur Si•g/t
v.
Tile Stal• qf
Yiodhya Prad_,h
and anoth~f
208
SUPRE1'1E COURT REPORTS
[1955]
Purshottam Trikumdas, (K. B. Asthana, Syed Murtaza Faz/ Ali and Rajinder Narain, with him) for the
petitioner.
M. C. Seta/vad, Attorney-General for India and
C; K. Daphtary Solicitor-General for India (Porus A.
Mehta and R. H. Dhebar, with them) for the respondents.
1955. April 7. The Judgment of Mukherjea C. J.,
Das, Vivian Bose and Imam JJ. was delivered by
Dils J. Sinha J. delivered a separate Judgment.
DAs J.-This is a petition for a writ in the nature
of a writ of habeas corpus calling upon the respondents
to show cause why the petitioner, who is now confined
in the Central Jail at Rewa,
should not be set at
liberty.
The petitioner's grievance is that he has
been deprived of his liberty otherwise than in accordance with procedure established by law. A rule nisi
;having been issued,
the respondents have filed an
affidavit by way of return to the writ. The question
for our decision is whether the return is good and
suft1cient in law.
The facts leading up to the present petition are
few and simple. In the years 1948 and 1949 the petitioner was the Minister of Industries in the Government of Yindhya Pradesh which was at that time an
acceding State within the meaning of section 6 of the
Government of India Act, 1935 as amended in 1947.
On the 11th April, 1949 the petitioner was arrested in
Delhi on the allegation that he had accepted illegal
,gratification in order to show favour to fanna Diamoncl Mining Syndicate in the matter of the lease of
the Diamond Mines at Panna. In December, 1949 the
petitiom:r along with one Mohan Lal, who was the
then sel!retary in the Ministry of Industries. was put
up for trial before the Court of Special Judge, Rewa,
c0nstituted under the Vindhya Pradesh Criminal Law
Amendments (Special Courts) Ordinance No. V of
1949.
The charges were under sections 120-B,
161
465 anc1 466 of the Indian Penal Code as adantecl for
\li:i,.lhva l'rJc.ksh hv the Indian Penal Corle l/\pplicat>nn to Vindhya Pradesh) Ordinance No. XLVTH of
2 S.C.R.
SUPREME COURT REPORTS
209
1949. By his judgment pronounced on the 2()th July
1950 the Special Judge acquitted both the accused.
The State preferred an appeal against that acquittal
to the Judicial Commissioner of Vindhya Pradesh. By
his judgment pronounced on the 10th March 1951 the
Judicial Commissioner reversed the order of acquittal,
convicted both the accused and sentenced them to
different terms of rigorous imprisonment under the
different sections in addition to the payment of certaln fines. On the application of the petitioner
and his co-accused the Judicial Commissioner on the
1,2th· March 1951 issued a certificate to the effect that
fon~ points of law raised in the case and formulated
by him in his order were fit for the consideration of
this Court in appeal under article 134 of the Constitution ot India. A petition of appeal was filed in this
Court on the strength of this c_ertificate of fitness and
it was registered as Criminal Appe;:i.l No. 7 of 1951.
As the case involved a substantial question of law
as to the interpretation of the Constitution, it was, in
April 1953, placed before a Bench of five Judges of
this Court as required by article 145t3) of the Constitution. For convenience of reference we shall call
~ Bench of five or more Judges as the Constitution
Bench. The validity of the convictions and sentences
was challenged before the Constitution Bench 9n the
ground that there had been infringements of articles
14 and 20 of the Constitution.
A further point of
law was raised that no appeal lay to the Judicial
Commissioner from the acquittal by the Special Judge.
By their judgment pronounced on the 22nd May 1953
the Constitution Bench rejected all these objections.
The: judgment concluded with the following direction: "The appeal is accordingly directed to be posted
for consideration whether it is to be heard on merits''.
This was evidently done in view of the fact that the
certificate of fitness granted by the Judicial Commissioner was limited only to four points of law.
The constitutional points having been disposed of,
the appeal was placed before a Division Bench of
three Judges who on the 20th October 1953 ordered
1955
Rao fihfra
Bahatlur Singh
·v.
The State of
Vindhya Pradesh
and another
Das .r.
1955
Rao Shiva
Ba/UJdur Sin6h
v.
The State of
Vindlrya Prtuksl.
and D'10l/rer
DusJ.
210
SUPREJ\1E COURT REPORTS
L1955
the appeal to be heard on the merits. The
appeal
Was accor_dingly put up for hearing before another
Division Bench consisting of three Judges.
On the
5th- March 1954 this Division Bench allowed. the appeal of Mohan Lal and acquitted him but dismissed
tbe appeal of the petitioner with respect to his conviction under sections 161, 465 and 466, Indian Penal
Code, as adapted in Vindhya Pradesh, but set aside
his conviction on the charge under section 120-B.
The sentence of three years' rigorous imprisonment
was mamtained but the sentence of fine was set aside.
On the 18th March 1954 a petition for review was
filed on behalf of the petitioner. It was directed
against the judgment of the Constitution
Bench
pronounced on the 22nd May 1953 repelling the constitutional points as well as against the judgment of
'the Division Bench dated the 5th March 1954 dismissing the petitioner's appeal on the merits. On
objection being taken by the Registry
against one
applicat10n being filed for the review of two judgments
one of which had been pronounced much earlier than
the period allowed for tiling a review ;ipplication, the
petitioner filed a second application for review of the
judgment of the Constitution Bench _rnd prayed for
condonation of the delay in liling the same. On the
5th April 1954 the application for review was pnt up
for hearing before the same Division Bench which
had pronounced the judgment on the me1:its
dated
the 5th March 1954. After considering the points of
review relating to that judgment the Division Bench
on the same day came to the conclusion that no
ground hfld been made out for review of that judgment and accordingly dismissed the petition. An
order was drawn up as of that date directing the petitioner who had been previously enlarged on bail to
.~urrender and serve out his sentence.
On the 12th April 1954 another petition was filed
on behalf of the petitioner praying that the review
matter relating to the judgment of the Constitution
Bench delivered on the 22nd May 1953 be placed before a Constitution Bench for final disposal. That review application was put up before a
Constltc1tion
2 S.C.R..
SUPREME COURT REPORTS
211
Bench which on the 17th May 1954 declined to entertain the same.
In the meantime the petitioner had in the last week
·of April 1954 surrendered and has since then been
confined in the Central Jail at Rewa. The present
application has, therefore, been made for a writ of
Jwhcas corpus on the allegation that the petitioner has
been and is being deprived of his liberty otherwise
than in acc.ordance with procedure established by law.
Jn the present petition the petitioner has again
urged that the Court of the Judicial CoJnmissioner of
Vindliya Pradesh was not the proper forum
for
entertaming the appeal against the judgment of the
Special Judge and consequently the judgment of the
Judicial Commissioner setting aside the acquittal of
the petitioner convicting and imposing ·sentence of
imprisonment was void and inoperative. Alternatively, 1t has been urged that, assuming .that the Judicial
Commissioner had jurisdiction to hear the appeal
from the Special Judge and his judgment was in
accortiance with procedure
established by law,
the appeal filed by the petitioner in. this Court
against the judgment of the Judicial
Commissioner
should have been, under article 145(3) of the Constitution. heard and completely dis!)osed of by the
Comtitution Bench. As regards the first point as to
the incompetency of the Court of the Judicial Commissioner to entertain the aooeal from the
decision
of the Special
Judge the ·same has
been
fully
deriit with bv the Constitution Bench and cannot bereagitflted.
Tncleed, learned counsel anpearing
in
supoort of this petition has not pressed
the
same.
The only point urned before us is the alternative plea
mentioned above which deoends for its decision on a
true construction of article 145.
Article 145 bv clause (1) authorises this Court. sub1ect to the provisions of anv law made bv Parliament
and with the approval of fhe President, to make rule~
for r~!!nlatinQ: Q:enerally the !)ractice and procedure of
the Court. 'inclnding. amongst others. rnles as to the
pr0cerl11re for hearing anneals. as to the entertHinment
of appeals under s11h--clause (c) of clause 0) 0f artklP
1955
RaD Shiva
Baluulur Sin'h
v.
T~ State of
Vinrihya Pra~s/J
1111d another
DasJ.
i955
Rao Shifa
Bahadur Sing/I
·V.
Tlte State 11f
Vindhyl,l 'Pmtfi•sh
im.1 another
Das .f.
21'2
SUPREME COURT REPORTS
[1955]
134 and as to the conditions subject to which any
judgment pronounced or order made by the ·Court
may be reviewed and the procedure for such review.
Clauses (2) and (3) of the article are in the terms following:-
"(2) Subject to the provisions of clause (3), rules
made under this article may fix the minimum number of Judges who are to sit for any purpose, and may
provide for the powers of single Judges and Division
Courts.
(31 The minimum number of Judges who are to
sit for the purpose of deciding any case involving a
substantial question of law as to the interpretation
of thi~ Constitution or for the purpose of hearing any
reference under article 143 shall be five:
Provided that, where the Court hearing an appeal
under any of the provisions of this Chapter other
than article 132 consists of less than five Judges and
in the course of the hearing of the appeal the. Court
. is satisfied that the
appeal
involves ~ substantial
question of law as to the interpretation of this Con"
stitution the determination of which is necessary for
the disposal of the appeal, such Court sh:ill refer the
question for opinion to a Court constituted as required
hy this clause for the purpose of deciding any case
involving such a question and shall on receipt of the
opinion dispose of the appeal in conformity with such
opinion".
The contention of the petitioner is that the question
whether a particular case involves a substantial question of law as to the interpretation of the Constitution is to be examined at the time when the case first
comes .before. this Court. If at that stage it is
found that it is a case involving a substantial question of law as to the interpretation of. the Constitution it becomes irrevocably impressed with that
charact.er and quality and the
minimum number of
Judges who are. to sit for the purpose of deciding suc)l
case must be a Constitution Bench, that is to say, a
Bench of at least five Judges. The argument then
proceeds to sav that once the Con9titution
Bench
takes seisin of the case and starts the hearing that
2 S.C.R.
SUPREME COURT R,EPORTS
213
Bench and that Be;nch alone must decide the whole of
1953
such case, that is to say, decide all questions, constiRao Shiva.
tutional or otherwise, arising in the case. Sri PurBalradur Sin~
shottam Trikumdas who appears in support of this
77re ~ateJt:
petition has i:trongly relied on the language used i~ 'f'i"::J0anZ~n.
clause (3) and contends that "the case" cannot be spht
up and that the clause requires the entire case to be
DasJ.
disposed of by the Constitution Bench. He, therefore, urges that the Division Bench had no jurisdiction to take up the case involving substantial question~ of law as to the interpretation of the Constitution and consequently the judgment of that Division
Bench pronounced on the 5th March, 1954 was illegal
and void.
According to him, his client's appeal, in
the eye of the law, remains undisposed of and as he
had been let out on bail until the disposal of his appeal, his detention in jail pursuant to the judgment
of the Division Bench, which is a nullity, amounts to
·deprivation of his personal liberty otherwise than in
accordance with procedure established bv law and is
an infringement of his fundamental right under
articie 21 of the Constitution. The argument at first
sight certainly appears to be plausible but on a
deeper consideration of the constitutional provisions
bearing on the subject and the general principles regulating the procedural powers of Courts we are
unable to accept the same as sound or well-founded.
In this very case the Judicial Commissioner of Vindhya Pradesh had granted a certificate of fitness
under article 134(1)(c). Consequently under the proviso to clause (3) of article 145 the appeal might . weJl
have been placed before a Division Bench consisting
of less than five Judges. In that situation, being
satisfied that the appeal involved a substantial question of law as to the interpretation of the
Constitu~
ti on the determination of which was
necessary for
the disposal of the .appeal, that Division. Bench could
refer the question for the opinion of a Constitution
Bench and on receipt of the opinion dispose of the
appt>al in. conformity with such opinion: lrut to accede
to the ari:i;ument of Sri Purshottam Triknmdas will
!e?d us to hold that while a Division Bench of three·
. 28-8 SCl'ND:82
1955
Rao Shiva
Bohadur Singh
v.
The State of
Vindhyu Pratfe sh
aRd another
Dasi.
214
SUPREME COURT REPORTS
[1955]
Judges could split up this very case, had it been posted before it in the first instance, by referring the constitutional questions to a Constitution Bench for its
opinion and then, after receipt of that opinion, disposing of the rest of the case on merits in conformity
with such opinion,
a Constitution Bench of five or
more Judges before which the case happened to be
posted in the first instance could not split up the case
by deciding the constitutional questions and leaving
the rest of the case to be dealt with and disposed of
by a Division Bench of less than five Judges on merits
in conformity with the opinion of the Constitution
Bench thus saving the time of the Constitution Bench.
Reference may also be made to article 228 which
authorises the High Court, if satisfied that a
ca~e
pending in a Court subordinate to it involves a substantial question of law as to the interpretation of the
Constitution the determination of which is necessary
for the cjisposal of the case, to withdraw the case and
either to dispose of the case itself or determine the
said question of law and return the case to the Court
from which it has been so withdrawn so as .to enable
the said Court to proceed to dispose of the case in conformity with the judgment of the High Court. Here
ag11in learned counsel's argument leads us to hold that
while the . High Court can split up a case involving a
su \->5tantial
question of law as to the interpretation
of the Constitution a Constitution Bench of this Court
cannot do so. Apart from these provisions of the
Constitution there- are provisions made by procedural
statutes which result in a case being partly heard by
one Judge arid partly by another Judge. To cite only
a few instances.- reference may be made to section 24
and Order 18. rule 15 of the Code of Civil Procedure
and sections 350. 526. 528 and 556 of the Code of Crim111al Procedure. The argument of Sri Purshottam
Trikumdas .. oushed to its logical conclusion, must
amount to this that althou!l:h Courts ooerating under
the ordinarv procedural code mav solit uo cases intn
r!ifferent sta!l:es for the nurnose of hearin'! and <lecision. a Constitution Bench of this Court cannot do so
if a case involving substantial 'que5tions of law as to
2S.C.R.
SUPREME COURT REPORTS
215
the interpretation of the Constitution happens to be
posted before it in the first instance.
Learned counsel for the petitioner recognises the
incongruity that results from his argument but contends that it cannot be helped because the relevant
provisions referred to above expressly sanction the
splitting up of cases whereas the body of clause (3) of
article 145 does not. His argument is that in the cases
mentioned above splitting up of cases has to be
dllowed because the special provisions of the- Constitution or other statutes provide for such splitting up
in those cases. He contends that the very fact that
these provisions had to be made dearly indicates that
but for them there could not have been any splitting
up of the case. It is said that these provisions are
exceptions to the general rule of indivisibility of a
case. We are unable to accept this reasoning
as
correct.
In the first place the proviso to article 145(3), article
228 and the other provisions of the Codes referred to
above quite clearly•indicate that the splitting up of
cases into different stages for hearing and decisions is
not repugnant to the Constitution or the general
principles of procedural law. The underlying principle of the Constitution is clear and all that it insists
upon is that all constitutional questions should be
heard and decided by a Bench of not Jess than five
Judges. As long as this requii:ement is fulfilled there
can be no constitutional objection to the rest of the
case being disposed of by a Division Bench of less
than five Judges. so as to save the time of the Constitution Bench of five or more Judges.
In the next place we are not aware of any such
general rule of indivisibility as is being insisted upon
by learned counsel. There is nothing in principle
which requires that a case must always be decided in
its entirety by one Judge or one set of Judges even
though such a case may conveniently be dealt with
in two or more stages. Indeed, in Mau/vi Muhammad
Abdul Majid v. Muhammad Abdul Aziz(') the Privy
Council pointed out that where a Judge had before
(I) L.R. 24 I.A. 22.
1955
Rao Shiva
Bahadur Singh
v.
The State of
v;ndhya Pradesh
and another
DasJ.
216
SUPREME COURT REPORTS
[1955]
1955
him a case consisting of two parts, a question of title
Rao Shiva
and an incidental question of account dependrng on
Bahadur Sin,h
title, it did not require any provision of the
Civil
The siate of Procedure Code to authorise him to decide the first
Vindhya Prad.sh question and reserve the second for further investigaand another
tion and that to treat such a proceeding as beyond
DasJ.
the power of the Court and as an error which barred
the proceedings reserved for further decisions was a
serious miscarriage of justice. Indeed, the Court
often exercise its inherent power, if it thinks fit to
do so, to decide questions of jurisdiction or limitation or the like as preliminary questions reserving
other questions of fact for future investigation. The
decision of a case at two or· more stages may and
often does result in the case not being decided by
the same Judge, for the Judge who· decided at the
first stage may, by reason of death, retirement or
transfer, be not available for deciding
the case at
the later stages.
It follows, therefore, that no argument can be founded on any supposed general rule of
indivisibility of a case for the purpose of its hearing
and decision.
The consideration that there is no such general rule
as is relied on by learned counsel and that the split.-
ting up of cases not generally repugnant to law and
in particular to the Constitution, leads us to the conclusion that in construing clause (3) of article 145 no
quality of indivisibility need
be attributed to
the
words "the case" used therein. A case may, to begin
with, involve a substantial question of law as to the
interpretation of the Constitution, but it may cease
to do so at a later stage, Suppose a case which involves a constitutional question is placed before
a
Constitution Bench but learned counsel appearing in
support of the case intimates to the Bench that he
does not press any constitutional point, surely he cannot, in that situation, insist that the time of a Bench
of five or more Judges should be spent on the determination of a case which, by his
own election, has
ceased· to involve any constitutional question. Likewise, when the constitutional questions involved in
the case are disposed of by a Constitution Bench what
2 S..C.R.
SUPREME COURT REPORTS
217
remains of the case cannot properly or appropriately
be described as still a "case involving a substantial
question of law· as to the interpretation of this Constitution". It should be borne in mind that when a
case or appeal is properly admitted to. this Court all
that the partie~ are entitled to is a decison of this
Court and not of any particular Bench. So long as
the minimum number of Judges which the Constitution and the rules framed by this Court prescribe are
present to hear and decide the questions raised from
stage to stage, they represent the Court for the purpose
of giving decisions on its behalf and the parties get all
that they are entitled to under the law. If a Court
is entitled to decide a case in stages, as the Privy
Council has held it can, there is no reason why article
145(3) should· be so construed as to deprive this.Court
of that inherent power. It will involve no violation
of any principle of natural ju,stice or of any legal principle if we co11strue clause (3) of article 145 as requiring only that the minimum number of five Judges
must sit for the purpose of deciding any case in so far
and as long as it involves a substantial question of
law as to the interpretation of this Constitution. We
find
nothing in the language of clause (3) of article
145 which militates against this interpretation of that
clause. Indeed, it is on this interpretation that the
practice has grown up in this Court for a Constitution
Bench to dispose of all constitutional questions and
to leave the other subsidiary questions for disposal
by a Divisron Bench of less than five Judges in conformity with the opinon of the Constitution Bench.
There is nothing that we find in the body of clause (3)
of article 145 which compels us to depart from the
famous maxim cursus curiae est lex curiae which was
laid down by Lord Coke in Burrowes v. High .Commission Court(') and which was quoted with approval in
Habibar Rahman v. Saidannessa Bibi(').
For reasons stated above we consider that a good
and valid return has been made by the respondents
to the rule nisi issued to them and this application
must be dismissed. We order accordingly.
(I) 3 Buist. 48, S3.
(2) I.L.R. 51 Cal. 331, 335.
1955
Rao Shiva
Bahadur Singh
V.
TM State of
Vindhya Pmditsh
and another
Das J.
1955
Rao .Shiva
Bahadur Singh
v.
The State qf
Vtndhya Pradesh
and another
218
SUPRE1\1E COURT RFPORTS
[1955]
SINHA J.-I regret to have to differ from my learned
brethren on the construction of article 145(3) of the
Constitution which is the main question in controversy in this case. Clause (3) of article 145 is in these
terms:-
"The 1ninimum number of Judges who are to sit
for the purpose of deciding any case involving a substantial question of law as to the interpretation of this
Constitution or for the purpose of hearing any reference under article 143 shall be five:
Provided that, where the Court hearing an appeal
under any of the provisions of this Chapter other than
article 132 consists of less than five Judges and in the
course of the hearing of the appeal the Court is satisfied that the appeal involves a substantial question
of law as to the interpretation of this Constitution·
the determination of which is necessary for the disposal of the appeal, such Court shall refer the question for opinion to a Court constituted as required by
this clause for the purpose of deciding any case involving such a question and shall on rece.ipt of the
opinion dispose of the appeal in conformity with such
. . "
op1111on .
It is noteworthy that the Constitution has not vested
this Court with complete power to make rules as to
the constitution of Benches for hearing matters coming before this Court in its Original, Appellate or Advisory Jurisdiction. Clause (2) of article 145 has invested this Court with power to make rules fixing the
minimum number of Judges who are to sit for any
purpose and for defining the powers of single Judges
and Division Courts. But this power is expressly made
subject to the limitation laid down in clause (3) quoted
above; that is to say, where any -case involves a substantial question of law as to the interpretation of
the Constitution (omitting the words not material for
our present purpose) the minimum number of Judges
prescribed by the Constitution to decide such a case
is five. A case may involve questions of law as to the
interpretation of the Constitution, as also other questions. In this case we
have to determine
whether
clause (3) contemplates the whole case or a part of a
2S.C.R.
SUPREM.E COURT REPORTS
219
case. In my opinion, the Constitution while laying
down clause (3) of article 145 contemplates the whole
matter in controversy arising in a case which may
include substantial questions of law as to the interpretation of the Constitution as also other questions.
The main clause (3), excepting cases coming within
the purview of the proviso does not contemplate a
splitting up of a case into parts, one part involving
substantial questions of law as to the interpretation
of the Constitution and another part or parts not involving such questions. My reasons for coming to this
conclusion are as follows:
Clause (3) itself read along with the proviso makes
a distinction between a "case" and a "question" of
the nature indicated in the proviso to the clause. The
Constitution has clearly indicated that cases coming
within the purview of the proviso may be split up so
as to admit of the questions of constitutional importance being determined by a Bench of at least five
Judges who may be described for the sake of convenience as a "Constitution Bench" in contradistinction to a Division Court consisting of less than five
Judges, as is contemplated in the proviso. The main
clause (3) requires a case of the description therein
set out to be heard and decided by a Constitution
Bench, whereas the proviso contemplates that only
the question of constitutional importance (using a
compendious phrase) has to be decided by a Constitution Bench and the case out of which such a question arises· remaining in the seisin of the Division
Court before which the case was originally placed for
hearing.
The Constitution has placed cases involving substantial questions of law of constitutional importance
on a special footing. If the framers of the Constitution had intended that not the whole case but only
particular questions of the nature indicated had to be
heard by a minimum number of five Judges. they
would have used words similar to those used in the
proviso makin.g it permissible for the Constitution
Bench to give its opinion for the decision of the case
by a Division Court in conformity with that opinion.
1955
Rao Shiva
Bahadur Singh
v.
The State of
Vindhya Pradesh
anti· another
Sillh,,J.
1955
Rao Shiva
Bal;adur '6ingh
V,
·r1ie State·of
Vi11dhya Pmdtsh
and a!fotlrtr
Sinh• J'.
220
SUPREME COURT REPORTS
[1955]
A reference to the terms of article 228 of the Constitution would also show that the framers 6f the
Constitution were fully alive to the difference between
the decision of the "case itself" and a "question of
law" of constitutional importance involved in
tha~
case. It has made clear in that article that the High
Court shan either decide the whole case including the
question of 'law as to the interpretation of the Constitution which was necessary for the disposal of the
case or determine only such a question or questions
and return the case to the original court for disposal
in conformity with the judgment of the High Court on
such question OT questions. The Constitution
made
these specific provisions to emphasize that there is a
distinction between determining the case itself and
determining a substantial question of law of constitutional. importance.
·
Can it be said that if clause (3) of article 145 had
been enacted without the proviso, a case could be
heard piecemeal first by a Constitution Bench which
would determine only questions of law as to the interpretation of the Constitution, and then the residue of
the case being heard and. determined by a Division
Court? That, in my opinion, would not be in compliance with the imperative provisions· of the main
clause (3). The framers of the Constitution therefore
enacted the proviso in the nature of an exception to
the general rule laid down in the main clause· (3). It
has to be observed that the proviso is limited to appeals only, subject to the further exception that such
appeals should not have come up to this (:ourt through
the process laid down in article 132 of the Constitution. It is thus clear that not all cases contemplated
in the main clause 13) but only appeals of a parti·
cular description would come within the qualifying
provisions of the proviso.
The word "case" has not been defined but it may
be taken as settled law that it is much wider than a
"suit" or an "appeal". Hence whereas the proviso
would apply to appeals brought up to this court, except those under article 132 of the Constitution. the
main cluase (3) would apply to all appeals and all
2 S.C.R.
SUPREME COURT REPORTS
221
other matters coming up to this Court in its Original,
Appellate and Advisory jurisdictions. In my upinion,
there canμot be the least doubt that the main provisions of clause (3) are all-embracing, and contemplate
all cases coming up to this Court.
It has not been contended that the present case
comes within the purview of the proviso but it has
been said that if it is open to a Division Court to
refer a question of constitutional importance to a Constitution Bench, why should not a Constitution Bench
be competent to refer questions other than those
of constitutional importance to a Division Court?
The answer is that whereas the former is contemplated
by the Constitution in terms, the latter is not. Nor
are there any rules to that effect.
But it has been further observed that the splitting
up of a case into parts, one involving questions of
constitutional importance and the remaining part not
involving questions of that kind,. is not against the
provisions of the Constitution. But, in my opinion,
if the Constitution has made a specific provision as to
the splitting up of a case 'into parts, one cognisable
by a Court of higher jurisdiction like a Constitution
Bench and the rest by a court of lower jurisdiction
like a Division Court, the argument is not available
that a splitting up of a case apart from those specific
provisions is also permissible. In this connection reference was made to certain provisions of the Co<,le of
Civil Procedure as also of the Code of Criminal Procedure to show that those Codes do contemplate hearing of the same case in part by different courts, but
those are all courts of co-ordinate jurisdiction in which
the question of the power of the court itself relatively
to the subject-matter of the case is not in question.
The court which originally dealt with the case and
the court which finally came to hear and determine
the matter were each one of them competent to deal
with the whole matter or any part of it. That is not
the position here.
In this case the argument on behalf of the petitioner is that as admittedly his appeal
involved substantial questions of law as to the interpretation of the Constitution and as it did not come
29-SSnND s~
. 1955
Rao S!Uva
Bahadur Siagll
v.
The Stat« qf
Vind/1yo P,aiks/s
and anotltu
SinhaJ.
222
SUPREME COURT REPORTS
[1955]
J955
within the purview of the proviso to clause (3) of artiRao Shiva.
cle 145 of the Constitution, it should have been dealt
Bahadur Singh with throughout by a Constitution Bench. It was sugTlie liaie of
gested in answer to this.argument that after the quesVindhya Pradesh tions of law of Constitutional importance had been
and another
dealt with by the Constitution Bench the case ceased
Sinil•J.
to be one involving such questions and therefore could
have been heard by a Division Court. But the difficulty
in accepting this argument is that once a Constitution Bench was seized of the case. it could not transfer it to another Bench for sharing the decision of
that case with it. That Bench should have heard cut
the whole case and it had not the power to direct. and
it did not so direct, that the remaining part of the
case should be heard by a
Division Court. Once a
Constitution Bench is seized of the case, it has to hear
the case to its conclusion.
There was no
process
known to the rules framed
under the
rule-making
power of this Court by which a case once it came before a Constitution Bench could get transferred from
,
that Bench to a Division Court either automatically
or by orders of any authority. But it has been su~
gested that it may happen that a Constitution Bench
may start the hearing of the case. and before
the
hearing is concluded one of the Judges is by reason
of death or otherwise disabled from hearing out the
case and in that event the Chief Justice has the power
to constitute another Bench.
But
that is quite a
4ifferent matter.
In that
case the hearing by the
previous Bench comes to nothing and the Bench constituted afresh by the. Chief Justice has to hear nut
the whole case afresh.
It has also been suggested on the other side that a
"case" may mean a part of a case. Jn my opinion.
that submission is not well founded; because, if that
argument were accepted and pushed to its logical conclusion, it may make the provisions of the main clause
(3) of article 145 nugatory. Article 132 of the Constitution has been, as indicated above, excepted from
the operation of the proviso tn clau5e (3).
S11ppose
an appeal is brought to this Court under article 132
of the Constitution as the case involved snbstanfr!l
2 S.C.R.
SUPREME COURT REPORTS
223
questions of law as to the interpretation of the Constitution.
That case besides involving questions of
that character, may also involve other questions. If
the argument that a "case" includes part of a case
were accepted, then it will be permissible for a Constitution Bench to hear the questions of constitutional
importance and leave the rest of the case to be determined by a Division Court, though such a case is expressly excluded from the operation of the proviso
and thus is directly within the terms of the
main
clause (3). Hence every case coming before this Court
involving a question of constitutional importance may
be dealt with in part in so far as it relates tp that
question by a Constitution Bench and the remaining
part by a Division Court. That, in my opinion, was
not intended by the framers of the Constitution. The
term "case" therefore tnust mean the whole matter in
controversy before this Court.