ORDER
V.B. Raju, J.
1. This is an appeal by the State of Gujarat against the acquittals of the three respondents by the City Magistrate, 5th Court, Ahmedabad, in Criminal Case No. 2020 of 1962. The State has now come in appeal and prays that the acquittals of these three persons should be set asidu.
2. The appeal is filed under Section 417. Criminal Pro. Code, which provides that the State Government may direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court. Section 419, Cri. P. C. provides that every appeal shall be made in the form of a petition. As there were three accused persons at the trial and all of them are acquitted, the question is whether there are three orders of acquittal or whether there is one order of acquittal. If two persons P and Q are jointly tried at one trial, one may be convicted and the other acquitted in which case there is one order of conviction and one order of acquittal in the same judgment against either of which an appeal can be filed. If both are convicted there are two orders of conviction. If both are acquitted there are two orders of acquittal. If both are acquitted at the trial, it is open to the State to file an appeal against the acquittal of both the persons or against the acquittal of one of the two persons only. Usually a Judge acquitting an accused person considers the case against that person and acquits him. When there are two accused persons the trying Judge considers the case against one of the two accused persons finds him not guilty and acquits him and repeats this process for the other accused, if he finds that the case against both of them is not proved beyond reasonable doubt. Section 258, Cr. P. C. also shows that in a judgment pronounced at the end of a trial there are at least as many orders of conviction or orders of acquittal as there are accused persons. Even if one person is tried there may be an order of conviction and an order of acquittal in respect of the same accused person if he is convicted of ,the charge tinder one section but acquitted of the charge under another section. Properly speaking, therefore, when a Judge or Magistrate acquits two persons at a trial he passes two orders of acquittal. If his order is regarded as one order of acquittal, then the State wil have to file an appeal against the acquittal of both the accused persons but it is always open to the State not to appeal against the acquittal of one of the accused persons but to filet an appeal against the acquittal of another accused person. Similarly, Section 423 (I) (a), Cr. P. C. provides that in an appeal from an order of acquittal, the Court may reverse such order and direct that further inquiry be made, or that the accused be re-tried or committed for trial as the case may be, or find him guilty and pass sentence on him according to law. If this appeal is regar ded as only one appeal against one order of acquittal, then a difficulty will arise under Section 42. (1) (a), Cri. P. C., because the order as a whole
will have to be reversed, and it will not be open to set aside the acquittal of one of the accused persons without touching the acquittal of another person. The order passed by the Magistrate
must be regarded as two orders of acquittal, one
order acquitting P and the other order acquitting Q. It is open to the State to file an appeal
against the acquittal of P or against the acquittal of Q. It is also open to the State to file two
appeals against the acquittal of P and Q. The present appeal has therefore to be treated as three
appeals against three orders of acquittal. In this view and in view of Section 410 Cr. P. C. there should be three separate appeals.
3. The instant appeal is against the acquittal of three respondents. If one of them say P dies, the Court will have to pass an order that the appeal abates as against P and will be heard regarding the other two respondents. Such an order would be invalid as it is an order of partial abatement of an appeal. By holding that a single appeal can be filed against the acquittals of several persons the Court may have to pass an invalid order if one of the acquitted persons dies pending appeal. 4. The question of maintainability of a joint appeal, by convicted persons has been considered
by two Division Benches and also by a single Judge on a difference of opinion between two Judges in another Division Bench, and in these Judgments, casual observations have been made holding that there can be a joint appeal against
two orders of acquittal.
5. For the detailed reasons given by me in my judgment in Lalu Jela v. State of Gujarat Criminal Appeal No. 395 of 1961, : (AIR 1962 (Gujarat 350), I am not prepared to accept the
view that decisions of any Bench of the Gujarat High Court are. binding in law on other Judges of the High Court. Under the Constitution of India,
High Courts should apply the Indian laws and not other laws. The omission to apply the provision of an Indian law applicable to a subject-matter would make the judgment per incuriam and defective. In the same manner to apply a law
or a principle of law which is not found in the Indian laws but which is found elsewhere either in
the written laws of other countries or in the books
of writers would make a judgment defective. Of
course, it is the duty of Judges to apply and ex-
pound the written laws of their country. While doing so, they might meet with a word of expression which is of ambiguous import. In order to understand the meaning of the word or expression used in the written law of India, Judges may refer to dictionaries or perhaps to the meaning given to the same expression in the Indian case law and in the written law or case law of other countries. But even in such a case, the Judges do not apply the meaning given there. They have to see whether that meaning is fairly and properly deducible from the language used in the Indian statute law. If it is, they apply it not because the meaning is given elsewhere but because in their judgment that is the proper meaning to be deduced from the language of the Indian law. 6. High Court Judges cannot be asked to be false to their oaths. According to the oath
taken by High Court Judges, they must give decisions according to law and according to their own judgment. The oath means that they should interpret the law as they understand it and that they are not bound to follow interpretation of the law put by other High Court Benches or Judges, if that is inconsistent with their own interpretation and judgment. High Court Judges cannot be asked to be false to their oaths and to accept as binding a view with which they do not agree. To suggest that the view taken on a question of law by a Full Bunch when deciding a case or even when hot deciding a case would lead to anomalies or absurdities, because the view taken by the majority of the Full Bench may in fact, be contrary to the view of the majority of the High Court or the majority of the High Court Judges, who have judicially considered what view should be taken on the question of law. For instance, there may be two contrary interpretations S and T. A Division Bench of two Judges J and K may take the view S. A Full Bench of three Judges L, M, and N may take the contrary view by a majority of two to one. To suggest that view T is binding on all Judges would mean that a view which is supported by 2 Judges and which, is not acceptable to three Judges is binding on all Judges which is a clear anomaly. If instead of constituting a Full Bench of 3 Judges L, M, N, a Full Bench of 5 Judges J, K, L, M and N is constituted, the contrary view would have prevailed.
7. Therefore the result is a matter of chance and accident. A result based on chance and accident cannot be held to be binding on all Judges of the High Court.
8. I again repeat that to say that decisions and views of Full Benches are binding may sometimes result in Judges having to be false to their oath.
9. It is also provided in the proviso to Section 165 of the Evidence Act that the judgment must be based upon facts declared by the Evidence Act to be relevant and duly proved. For the purpose of evidence the Evidence Act treats judgments as facts and there is a group of sections in the Evidence Act, namely Sections 40 to 44 which is headed ‘judgments of Courts of Justice when relevant’. Section 43 of the Evidence Act reads thus: –
“Judgments, orders or decrees,” other than those mentioned in Sections 40, 41 and 42, are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provision of this Act”.
10. For a High Court Judge to say that he decides a case in a particular way in view of the judgment of another Judge is to base his judgment upon the judgment of another Judge. For a High Court Judge to say that he dismisses an appeal because in view of the judgment of another High Court Judge there is no merit in the point of law urged before him is to base his judgment on the judgment of another High Court Judge, which is contrary to Sections 165 and 43 of the Evidence Act. To do so will be contrary” to Section 165 of the Evidence Act and also to the oath taken by him.
11. A judgment consists of statements of facts, summary of arguments, decision of the Court and the reasons therefor. In their judgments, High Court Judges may state their view of the law and their interpretation of the law. High Courts do not declare the law as the Supreme Court does. High Courts merely decide the cases before them by applying the law as they understand it to the facts of each individual case. They may give reasons for the decision. The statement of facts contained in a judgment is not binding on other Judges of the High Court unless the statement is res judicata. The reasoning in a judgment is also not relevant in another case. In fact, it is provided in Section 43 of the Evidence Act that judgments, orders or decrees, other than those mentioned in Sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree is fact in issue, or is relevant under some other provisions of the Evidence Act. Judgments are relevant under Section 13 of the Evidence Act only for limited purposes. The reasons upon which a judgment is founded are irrelevant as observed by the Privy Council in Gobinda Narayart Singh v. Sham Lal Singh, ILR 58 Cal 1187 at p. 1198: (AIR 1931 PC 89 at p. 92).
12. Nevertheless, although a judgment may not be relevant under the Evidence Act, it may be seen by judges to see if it contains any line of reasoning which appeals to them. A judgment of a High Court is not therefore binding on the other Judges of the same Court or upon the Judges of any other High Court. This is so, because of Section 43 of the Evidence Act and Section 165 of the Evidence Act and also because of Article 219 of the Constitution of India and the oath taken by High Court Judges under that Article that they will act according to their judgment and not according to the judgment of others. It is open to a High Court Judge to agree with the judgment of another but if he does not agree, he must follow his own judgment.
13. Sitting as a Single Judge, Sir Beaumont C. J. said that he was not bound by the judgment of Division Court of the Bombay High Court in Punjashet Lala v.’Moti Ram Budhu ILR 50 Bom 192, decided by Sir Norman Macleod C. J., and Coyajee J., and Sir John Beaumont observed thus:
“In my opinion the Legislature, having conferred upon the Court in clear language a discretion under Order 23, R. I, I am not bound by the reasoning on which another decision is based which seeks to take away from the Court the discretion which the Legislature has given,” Mahakore Baj v. Bhikabhai Sankalchand, AIR 1935 Bom 28).
According to Sir Beaumont, the then Chief Justice of the Bombay High Court, decisions of the Division Benches of the Bombay Court are not binding on single Judges of the Bombay High Court.
14. Halsbury (3rd Ed. Vol. 22, para 1689) observes that the modern practice is that a judge of first instance will usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. If he is so convinced, the judgment is not binding and may not be followed. Halsbury observes that that is not a rule of law but it is the practice.
15. Even Halsbury who explains the position under a common law system recognises that judgments are not binding. Even Halsbury observes that the modern practice is that a judge of the first instance will usually follow the decision of another judge of first instance unless he is convinced that that judgment was wrong. Hals-bury clearly mentions that a Judge of the first instance need not follow the decision of another Judge of the first instance if he is convinced that a judgment is wrong. In other words, a judgment need not be followed by another Judge if the latter thinks that the judgment was wrong. There is, therefore, no binding nature in a judgment. Even Halsbury who mentions this rule of practice applies it to the Judges of the first instance and Judges of the High Court of Gujarat are not Judges of the first instance. In countries where there is written law the binding character is much weaker as laid down by Viscount Haldane in Kreglinger v. New Patagonia Meat and Cold Stprage Ltd., 1914 A. C. 25 at p. 40, where he observed: –
“Previous decisions of a court of co-ordinate jurisdiction are more binding in a system of jurisdiction such as that of England than in a system where the superior authority is that of a Code”.
16. The written law cannot be superseded by High Court decisions. To say that a High Court decision is binding whatever be the written law is to ignore the written law, which it is the bounden duty of High Court Judges to apply and to enforce. Article 219 of the Constitution requires every High Court Judge to take an oath that in the name of God he will to the best of his ability, knowledge and judgment uphold the Constitution and the laws. Judges of the High Court have therefore to take an oath to give decisions according to their own knowledge, judgment and ability. Judiciary must subject to the rule of law be independent in all spheres. They must uphold and apply the laws and one such law is found in Article 141 of the Constitution of India, which provides that the law declared by the Supreme Court shall be binding on all Courts within the territory of India. The enacted laws and the declaration of laws made by the Supreme Court are therefore binding on all High Court Judges. Subject to this provision, High Court Judges must give decisions according to their own knowledge and judgment. It is true that they must show the greatest and most profound respect to the judgments of their own High Courts and they must, if it is at all possible, try to be convinced by the reasoning of other Judges of the same High Court and the reasoning of other High Courts. But i in spite of their best efforts, they are not convinced, are they to surrender their own individual judgment and liberty of thought and expression of judicial views which are qualified only by Article 141 of the Constitution? To say that Judges should forget their own judgments and should follow that of another is to make them untrue to their oath and to make a (ravesty of freedom of judgment and independence of judiciary.
17. Judges take oath to apply the laws. Not to apply a principle which is found in the written laws would vitiate the judgment of a Judge. Similarly to apply a principle which is not found in the laws would vitiate the judgment and would amount
to a violation of the oath taken by Judges to enforce and apply the laws. Judges are not entitled to legislate and to introduce or create principles which are not found in the law. Whatever principle’ a Judge applies must have reference to the language used in the laws.
18. The supposed rule of binding nature of High Court judgments is not based on anything in the written law and has no reference to anything in the written law, To apply such a rule is tantamount to legislation and to a breach of the oath taken by Judges.
19. If a High Court Judge follows the view expressed by other High Court Judges on the ground that that view is binding on him and he does not apply his own view, his judgment would be vitiated. If a District Magistrate having power under the law to pass a judicial order if he is satisfied on a certain point, passes an order without being personally satisfied but merely because his minister or Police Superintendent is of that view, his order would be set aside by any High Court.
20. Then it is said that some rule as to the
binding nature of precedents should be invented for
the sake of certainty in the law. To do so would
be to legislate and not to enforce the laws or apply
the laws. Whatever be the object, Judges can
not legislate and exceed their powers. Powers of
High Courts are limited, circumscribed and as de
fined in the Charters or Letters Patent. In
fact so long as the Supreme Court has not declared the law, there can be no certainty. The
Supreme Court can reverse the decisions of even
Full Benches of a High Court. Even Governments have to pass legislation to enforce their policies. Under the High Court Charter, the only
authority which can reverse or overrule the decision of a Division Court is the Supreme Court.
The Supreme Court is the only appellate authority
over Division Courts. It is not competent to High
Courts to create other appellate authorities under
the Charter. What are called Full Benches are
merely Division Courts and all Division Courts
have the same authority and power. So long as
there is a reasonable scope for, two different opinions
amongst Judges of the High Court on any point,
there is uncertainty in the law unless the matter is
taken before the Supreme Court for decision.
A real scope for difference of opinion and
a real doubt as to the correct view cannot be concealed by an unwilling agreement among Division
Courts. Any intelligent lawyer can always see
whether there is really an uncertainty in the law
notwithstanding the outward agreement of Division
Courts. The question is. not whether decisions of
one Division Court should be binding on other
Division Courts, the question is not whether it is
advisable to have such a policy, but the question
is whether in law such decisions are binding. In
other words whether there is anything in the writ
ten law to make such decisions binding. As to the
binding nature of decisions of Courts Article 141 of
the Constitution is the sole provision and the Constitution deliberately did not go beyond Article 141.
21. The expression “Courts of co-ordinate jurisdiction” is not found in the written law of India anywhere. It is therefore not necessary for Indian Judges to determine what the meaning of
that expression is. The principle that judgments of Courts of co-ordinate jurisdiction should be trea ted as binding and that the Division Courts of the Bombay High Court and Division Courts of Gujarat High Court are Courts of co-ordinate jurisdiction would depend on applying the principle that judgments of Courts of co-ordinate jurisdiction are binding on other Courts of co-ordinate jurisdiction This principle is not found anywhere in the writ ten law of India and cannot be deduced from any words used in the written law of India. To apply the principle that the decision of a Court is binding on all Courts of co-ordinate jurisdiction and then to proceed to determine the meaning of the expression ‘Courts of co-ordinate jurisdiction’ which is not found in the Indian laws, would, in my humble opinion, be not quite proper.
22. For the reasons given by me in my judgment in Criminal Appeal No. 395 of 1961 : (AIR 1962 Gujarat 250) which is lengthy and the reasoning of which should be treated as part of this judgment, and for the above reasons. I hold that the first duty of a Judge is to be true to the oath taken by him and to apply the Indian Constitution and the Indian laws only. I am not prepared to say what I do not feel. I am not prepared to say that a principle is good because somebody etsu has said so, although I cannot myself agree with that principle. But if I am convinced that a sound interpretation has been given to the Indian law in the judgment of any Indian Court, I shall gratefully and with great respect derive benefit from that judgment. But the language of the Indian statute will have to be fairly and reasonably capable of that interpretation. The principles laid down and interpretations placed by Courts in India, other than the Supreme Court are not, therefore, binding on High Courts, although they are entitled to the greatest respect and although every effort should be made, if possible, to agree with them.
23. In my humble opinion, it would not be correct to apply a principle of law because that principle prevails in another country or because that principle has been enunciated in a book of ia a case. But assistance can be derived from such authorities, and if a principle of law stated in such authorities is properly deducible from the language used in the Indian statutes, then it is open to Courts in India to deduce that principle from the language of the Indian statutes and to apply that principle because it is deducible from the language of the Indian statutes and not because it is stated or explained elsewhere. The principle of binding nature of Courts of co-ordinate jurisdiction is found in the English common Iaw5 but that principle cannot be deduced from any language found in any Indian law. That principle is peculiar to English common law because in the English common law system the judgment of a Court itself becomes law and becomes the written law. The view that I have expressed is also expressed by Rudolf B. Schelesinger in Comparative Law, Second Edition, at p, 287, where it is observed 39 follows: –
“(I) In a common law system, judicial decisions constitute “the law”. Therefore, without a doctrine of stare decisis, “the law” would be uncertain. In a code system, codes and auxiliary
statutes are . “the law.” In theory, the Courts merely, ”apply” and “interpret” the law. As the written, law is thought to provide the necessary element- of certainty, judicial decisions need not, and generally do not, have binding force under such a system.
As a general proposition, therefore, and as a convenient starting point for discussion, it is correct to-state that in common law jurisdictions judicial decisions are binding on subordinate Courts, and in some measure on co-ordinate Courts and on the deciding Court itself, while the civil law world does not regard judicial pronouncements as binding in subsequent cases.”
I refer to this book not with intention of applying the principle stated therein but to show that the views that I have already expressed are not startling ones. Support for a Judge’s judgment must) always be found in the written law, but I am not enunciating a new principle and need not refer to any written law as forming the basis of any principle enunciated by me. I merely say that another principle sought to be suggested by others cannot be supported by any language in the written law, and, therefore, the judgments of Courts of India other than the Supreme Court are not binding on other Courts.
24. The judgments of the Division Benches, who have considered the question of maintainability of a joint criminal appeal, are not binding in law hut at the same tune, they are entitled to the greatest respect and consideration, and if it is at all possible, I must try to agree with that reasoning. But for the reasons given by me in my judgment in Criminal Appeal No. 393 of 1961, I find it difficult to agree with the reasoning adopted by the Division Court consisting of three Judges.
25. On a difference of opinion between me and my learned brother Bakshi J., as to whether the view taken by that Division Court of which any learned brother Shelat J. (as be then was) was a member was to be followed, the matter was referred to my learned brother Shelat’ J. (as he then was), I have read his judgment with great care and with the greatest respect I find it difficult to agree. A Division Bench can request the Chief Justice to place an appeal before another Division Bench. This was done by the Calcutta High Court in the cases referred to by me in my judgment in Criminal Appeal No. 395 of 1961: (AIR 1962 Gujarat 250). A Division Bench can do so for other reasons, e. g. that for personal reasons one of the Judges of the Bench does not wish to decide the matter. It is not open to a Division Bench to refer pure questions of law to another Bench except when the matter falls under Article 56 of the Letters Patent. Even when a Judge is unable to agree with the view taken by other judges, he does not and has no authority to, overrule the views of other Judges. The only appellate authority over the decision of a Division Bench is the Supreme Court. No Division Bench can sit in appeal or overrule the decision of another Division Bench. If there is no decision of the Supreme Court, it is of .course open to any Division Bench to take any view that the conscience of its members requires it to take, even if there is a decision of another Division Bench to the contrary and even
if the latter Division. Bench happens to be what is called a Full Bench. A Judge is not expected to suppress his conscience and independence of view, “very Judge has to decide the case before him to the best of his ability and judgment. It is only the Supreme Court that can overrule. As their Lordships of the Supreme Court pointed out, a Division Court cannot say that another Division Court has erred but that is not the same thing as saying that a Judge should surender his judgment and conscience and should say and hold what he does not feel.
26. In the face of the oath taken by Judges under the Constitution that they will apply the laws to the best of their judgment and ability, there is no question of judicial discipline. The oath taken by a Judge, the Constitution and the laws including Article 141 of the Constitution are supreme and their supremacy is unchallengeable.
27. In any case, in my humble view, for the reasons stated by me in Criminal Appeal No. 395 of 1961: (AIR 1962 Gujarat 250), the judgment of the Division Court of three Judges is obiter, per incuriam, etc. It is per incuriam because the effect of Section 419, Cri. P. C. was not considered. No doubt, my learned brother Shelat, J. (as he then was) has referred to that Section and observed that there is nothing in that section which prohibit the presentation of a joint memo of appeal. With great respect, I cannot agree because that section enjoins that every appeal shall be in the form of a petition which means that there cannot be a joint petition in respect of two appeals or in respect of a matter which has to be treated as two appeals. In the matter of trials the Criminal Procedure Code has enacted provisions dealing with the question as to in what circumstances there can be a joint trial of accused persons. The Code, however made no provision for joint appeals because obviously it does not want to permit joint appeals. If the legislature had wanted to permit joint appeals, it would have enacted revisions like those relating to joint trials. On the contrary, the whole scheme of Chapter 31 of the Cri. P. C. which deals with appeals is inconsistent with joint appeals. The decision of the Supreme Court in R. G. Jadav v. State of Bombay, AIR 1960 SC 748, is also inconsistent with joint appeals.
28. I must follow the clear declaration of law by the Supreme Court that the Criminal Procedure Code does not contemplate partial dismissal of an appeal. It is not open even to a Full Bench to distinguish or to water down a clear declaration of law made by the Supreme Court. When the Supreme Court declares that the Code does not contemplate a partial dismissal, it is not open even to a Full Bench to say that the Code allows partial dismissal in certain cases. The sections of the Criminal Procedure Code are also clear and they show that they do not contemplate a dismissal of an appeal in regard to some of the appellants or some of the respondents and that the Code does not contemplate partial abatement in respect of some of the appellants or in respect of some of the respondents.
29. As there is a clear declaration of law by the Supreme Court on the point, I must dismiss
the appeal against several orders of acquittal as incompetent.
30. Morever, as explained by me in my judgment in Criminal Appeal No. 395 of 1961: (AIR 1962 Guj 250), the declaration of law made by the Supreme Court in AIR 1960 SC 748, is binding on all Courts. Their Lordships of the Supreme Court have clearly laid down that the Code does not provide for partial summary dismissals of criminal appeals. To hold that a joint criminal appeal if maintainable .would be to follow a procedure in which invalid orders may have to be passed. When the Supreme Court has held that a partial summary dismissal of a criminal appeal is invalid, on the same reasoning an order holding that a criminal appeal has partially abated would be invalid An appeal by a single accused may be dismissed only with regard to his conviction but not with regard to sentence. A single appeal by several convicted persons against their convictions may be dismissed with regard to convictions of some only of the convicted persons. A single appeal by the State against a judgment acquitting several persons may be dismissed only with regard to the acquittals of some of the persons. In all these cases there is a partial dismissal and the Supreme Court has heid that a partial dismissal is invalid. Therefore if there is a single appeal against the orders of acquittal of several persons an invalid order may be passed. Therefore, in such a case a single appeal is not maintainable.
31. If the Legislature has made a provision for separate appeals and has not made any provision for a joint appeal, it is a bounden duty of Judges to apply the laws of India whether they are convenient or not. As already stated, it cannot be said that the provisions of Section 419, Cri. Pro.. Code are inconvenient to any advocate or to any lawyer or litigant. For a trifling inconvenience, we cannot sacrifice the sacredness of the Indian law, which Courts are bound to uphold even at the cost of convenience. No ground whatsoever can justify a Judge for not applying the laws as he understands them. In the judgment of my learn-ed brother Justice Shelat (as he then was) (Sic). No further arguments have been advanced, which are not found in the judgment of the Division Bench consisting of three Judges except that the question whether the judgment was per incuriam or not has been referred to. In the Full Bench judgment, the following observations are made:
“The fundamental fallacy underlying the argument based on Sections 42r, 423 and 431 of the Criminal Procedure Code is in assuming that when one joint appeal is filed by several persons it is to be treated for all purposes as if it was a single appeal by’ a single person. When a joint appeal is instituted under Rule 6, if that appeal is regarded as only one joint appeal jointly made which could only jointly subsist and in respect whereof only one common order could be passed then, there is something to be said about such a rule being in contravention of the provisions of Sections 421, 423 and 431 of the Criminal Procedure Code. If an appeal is filed under the provisions of Rule 6 by several persons and if that is treated as an appeal which can either abate as a whole against all persons or does not abate at all, as one in respect whereof a summary order of dismissal, can be passed
against all the persons preferring the appeal or against none or in respect whereof only one of the several kinds of .orders referred to in Section 431 could be passed against all the accused, then it is possible to suggest that by Rule 6 something has been sought to be done which is ‘not permissible under the Criminal Procedure Code to do and which is contrary to the provisions of the Criminal Procedure Code. Rule 6 however is not operative so as to bring about the aforesaid result. Merely be-cause several persons join in one appeal it does not become one indivisible non-separable appeal”
32. It is thus recognised that if an appeal by several convicted persons against their convictions or an appeal against several orders of acquittal acquitting several persons jojntly tried at one that is regarded as one appeal, Judges would be contravening the provisions of the Criminal Procedure Code in Sections 421, 423 and 431,’Cri. Pro. ‘Code.
33. How can one appeal be treated other than as one appeal? That is why in my humble ‘opinion one apeal is not competent. There must be as many different appeals as the number of persons acquitted.
34. For a High Court Judge, to treat a “judgment of a High Court as binding on him and (sic)
decide a case in accordance with such judgment
would contravene the provisions of “Article 219 of
the Constitution and the oath taken by him in
accordance with that Article that he will perform
his duties to the best of knowledge and judgment.
The conclusions contained in his judgment must
be based on his judgment and not on a judgment
of another High Court Judge or another Bench of
High Court Judges. But before coming to his
judgment, he may consider various authorities, and
having considered various authorities, he must come
to his own judgment. He may accept the view of
another High Court Judge or of a Bench or of an
other Bench of High Court Judges, but the conclusion must be his own and must be based on hiS
own judgment. Of course, he has to apply the
laws of India and one of the laws of India is contained in Art, 141 of the Constitution of India
which provides that the law declared by
the Supreme Court shall be binding on
all Courts within the territory of India
Except when there is a judgment of the Supreme
Court declaring the law to be applied, High Court
Judges must use their own judgment even if they
consider various decisions before forming their Judgment. But without forming their individual judgment, to say that they come to a certain conclusion because a certain judgment of a High Court is
binding on them would be to contravene the oath
taken under Article 219 of the Constitution of India.
The principle of the independence of the judiciary
is enshrined in the oath taken by Judges and that
principle cannot be overridden by any other principle.
35. Clauses 19, 20 and 21 of the Charter of the High Court read thus:
“10. And we do further ordain that, with respect to the law or equity to be applied to eact case coming before the said High Court of Judicature in Bombay, io the exercise of its ordinary original civil jurisdiction such law or equity shall be the law or equity which would have been applied
by the said High Court to such case if these Letters Patent has not issued.”
“20. And we do further ordain that with respect to the law or equity and the rule of good ‘conscience to fee applied to each case coming be-fore the said High Court of Judicature in Bombay, in the exercise of its extraordinary original civil jurisdiction, such law or equity and the rule of good conscience shall be the law or equity and the rule of good conscience which would have been applied to such case by any local Court laving jurisdiction therein.”
”31. And we do further ordain that, with res-pect to the law or equity and the rule of good conscience to be applied by the said High Court of judicature in Bombay, to each case coming before it in the exercise of its appellate jurisdiction, such law or equity and rule of good conscience shall bo the law or equity and rule of good conscience which the Court in which the proceedings in such case were originally instituted ought to have applied to such case.”.
The law is apart from judgments of High Courts, Judges only ascertain what the law is and apply it.
35a. In each case coming before a High Court, the High Court has to apply the law or equity. ‘Equity’ means the principle of equity that is applicable to a particular case. The supposed rule regarding precedents is not part of the law or part of the law of equity which has to be applied to each case by the High Court. It is not part of the rule of good conscience which has to be applied to each case coming before this High Court.
36. To treat a judgment of the High Court as binding and deciding a case in accordance with
such a judgment, would contravene the provisions of Section 165 of the Evidence Act, because to do
so would be to base a judgment upon the judgment of another Court which is not relevant under the provisions of the Evidence Act. It is clearly provided in Section 165 of the Evidence Act that
the judgment of a Court must be based upon facts declared by the Evidence Act to be relevant and duly proved. The definition of ‘fact’ in the Evidence Act is very wide. As defined in the Evidence Act. ‘fact’ means and includes – (i) any
thing, state of things, or relation of things capable of being perceived by the senses; (2) any mental condition of which “any person is conscious. Thus, ‘fact’ includes laws and books, whether the books be on law or on other subjects. In Chapter III relating to facts which need not be proved, reference is made to laws in force in the territories of India. The laws in force in the territories of India’ are therefore facts within the meaning of the Evidence Act, and facts which need not be proved and of which the Court should take judicial notice. It is also provided .in Section 57 of the Evidence Act that in all matters of public history, literature, science or art, the Court may resort for its aid to appropriate books or documents of reference. In such & case, books are merely to aid the Court, and books do not form the basis of the judgment of the Court.
37. A judgment of a Court would not be rela-vant under the provisions of the Evidence Act unless it is relevant under Section 40 or section 41 and section 42 or some other law. There is no pro
vision in the Evidence Act making a judgment of another High Court where the facts are entirely different and the parties are entirely different, relevant in a subsequent case. There is no provision in the Evidence Act or any other Indian law making the observations of another Judge or a Bench of Judges relevant.
38. A judgment would be a fact as defined in the Evidence Act. If the judgment is law, it would be binding upon all the Courts including the Supreme Court. A judgment of a High Court can-not, therefore, be taken to be a law. There is no provision in any Indian law whereby the judgment of a High Court is binding on Judges of the same High Court or Judges of. other High Courts. On the contrary, to hold that a judgment of one High Court is binding would be, as already observed, contravening the provisions of Section 165 of the Evidence Act.
39. Fact as denned in the Evidence Act includes a judgment of a Court. In fact, the rele-vancy of judgments of Courts is dealt with in Sections 40 to 43″ of the Evidence Act. A judgment of a Court should not be the basis of a judgment of another Court, unless the former is admissible under the provisions of Section 165 of the Evidence Act. The question of the binding nature of judgments has not been decided by the Supreme Court and there is no declaration of law on that point by the Supreme Court. In Punamchand Velraj v. Bombay Cloth Market Co. Ltd., 45 Bom LR 240: (AIR 1943 Bom 141), Sir John Beaumont, C. J. observed that a Judge ought generally to follow the decision of a Court of co-ordinate jurisdiction but Judges are not entitled to legislate or to bind their successors to a construction of an Act. which the language plainly does not justify. According to Sir John Beaumont the decision of a Judge is not binding.
40. We have to see whether judgments would be relevant under Section 38 of the Evidence Act. That section reads as follows:
“When the Court has to form an opinion as to a law of any country any statement of such law contained in the book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the Courts of such country contained- in a book purporting to be a report of such rulings, is relevant.”
This section does not refer to judgments. We must note the expression “opinion as to a law of any country” An argument may be advanced that under Section 45 of the Evidence Act the expression used is “to form an opinion upon a point of foreign law”. It can, therefore, be urged that when it is intended to refer to the law of countries other than India, the expression used is “foreign law” and that the expression “law of any country” would include the law of India.
41. But in regard to tie laws of India, a Court has not to form an opinion because everybody is presumed to know the law. Moreover under Section 57 of the Evidence Act, a Court shall take judicial notice of all the laws in force in the territory of India. Moreover, it would be rather inconsistent to hold that although the judgment of a
Court is irrelevant under Section 43 of the Evidence Act, a report purporting to be a report of such a judgment would be relevant,
42. It appears that the expression “foreign law” has been used in Section 45 and the expression “law of any country” has been used in Section 38 of the Evidence Act for the sake of convenience of drafting, because in Section 45 we have the expression “form an opinion upon a point of foreign” law, or of science or art”. In Section 38 the words “law of any country” are followed by the expression “Government of such country” and the expression “the Courts of such country”. It the expression “foreign law” had been used in Section 38, the drafting would not have been so pretty. In this connection, we have also to remember the provisions of the Indian Law Reports Act. Section 4 of that Act clearly provides that that Act has no bearing on the effect of judgments.
43. The declaration of law made by the Supreme Court in AIR 1960 SC 748 is binding on all Courts and High Courts- cannot take a view which is inconsistent with that declaration of law and which may lead to orders being passed which would be invalid according to the declaration of law made by the Supreme Court. It would be wrong for me to follow a High Court ruling which is inconsistent with a declaration of law made by the Supreme Court. I must hold that a single appeal by the State against the orders of acquittal of several persons is not maintainable under the Criminal Procedure Code.
44. I, therefore, hold that this appeal is not maintainable and rejected.
