LEONARD XAVIER VALDARISversusJITENDRA RAMNAYARAN RATHOD & ORS.

          [2024] 5 S.C.R. 400 : 2024 INSC 344

               Leonard Xavier Valdaris
                         v.
         Jitendra Ramnayaran Rathod & Ors.
             (Criminal Appeal No. 2198 of 2024)
                         22 April 2024
       [Sanjiv Khanna and Dipankar Datta JJ.]

                    Issue for Consideration
Whether a Single Judge of the High Court can disagree with an
earlier order of a Single Judge based on the same set of facts
and one trial, and give a conflicting order.

                           Headnotes
Practice and Procedure – Conflicting Decisions – Two
conflicting orders by co-ordinate benches arising out of same
set of facts and one trial – Subsequent order to be treated
as order referring the matter to larger Bench of two judges
for consideration
Held: Single Judge of High Court upheld order passed by the
Special Judge framing charge under Section 302 of the Penal
Code, 1860 – Order attained finality – Subsequently, another
Single Judge of High Court disagreed and directed charge under
s.302 not to be framed – Same set of facts and one trial leading
to two conflicting orders – Rule 8 of the Bombay High Court
Appellate Side Rules, 1960, considered – If Single Judge is of the
opinion that the earlier order was unsustainable and contrary to
law should have referred to a Division Bench/ two judges Bench –
Should not have passed conflicting order – Subsequent decision
of the Single Judge to be treated as one differing with the view
expressed in the earlier order and as one referring the matter to
a larger bench of two Judges/ Division Bench for consideration
– Chief Justice of High Court requested to constitute appropriate
Bench. [Paras 5, 8-10]

                        Case Law Cited
     Shri Bhagwan & Another v. Shri Ram Chand & Another
     [1965] 3 SCR 218 : AIR 1965 SC 1767; Eknath
     Shankarrao Mukkawar v. State of Maharashtra [1977]
     3 SCR 513 : (1977) 3 SCC 25 – relied on.
[2024] 5 S.C.R.                                                           401

     Leonard Xavier Valdaris v. Jitendra Ramnayaran Rathod & Ors.


                                List of Acts
     Penal Code, 1860; Bombay High Court Appellate Side Rules, 1960.

                             List of Keywords
     Conflicting decisions; Coordinate bench; Referring to larger bench.

                            Case Arising From
     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.2198
     of 2024
     From the Judgment and Order dated 20.04.2023 of the High Court
     of Judicature at Bombay in CRLWP No. 4451 of 2022
                         Appearances for Parties
     Payoshi Roy, S. Prabu Ramasubramanian, Raghunatha Sethupathy
     B, Bharathimohan M, Avinash Kumar, Advs. for the Appellant.
     Rizwan Merchant, Mrs. Yugandhara Pawar Jha, Kunal Verma, Sultan
     Khan, Sagar Shete, Ms. Lavanya Dhawan, Shivraj Pawar, Shrirang B.
     Varma, Siddharth Dharmadhikari, Aaditya Aniruddha Pande, Bharat
     Bagla, Sourav Singh, Aditya Krishna, Ms. Preet S. Phanse, Adarsh
     Dubey, Ms. Nidhi Khanna, Ms. Vimla Sinha, Sanjay Kr. Tyagi, Ms.
     Harshita Raghuvanshi, Pratyush Shrivastav, Ms. Aarushi Singh,
     Advs. for the Respondents.
                Judgment / Order of the Supreme Court
                                   Order
1.   Leave granted.
2.   A peculiar situation has arisen. A Single Judge of the High Court
     in Criminal Writ Petition No.4104/2022 titled as “Archana Maruti
     Pujari & Ors. v. Central Bureau of Investigation & Ors.” decided
     on 16.12.2022, had upheld the order passed by the Special Judge
     framing charge under Section 302 of the Indian Penal Code, 1860
     (IPC). The order/judgment dated 16.12.2022 was not challenged
     and has attained finality.
3.   By the impugned judgment/order dated 20.4.2023 in Criminal Writ
     Petition No.4451/2022 titled “Jitendra Ramnarayan Rathod v. Central
     Bureau of Investigation & Ors.” another Single Judge of the High
     Court disagreed with the view expressed in the judgment/order dated
402                                                          [2024] 5 S.C.R.

                            Digital Supreme Court Reports


       16.12.2022 and has directed that the charge under Section 302 of
       IPC should not be framed.
4.     This leads to an incongruous situation where, in the same set of
       facts and one trial, there are two conflicting orders, one rejecting
       the challenge to framing of charge under Section 302 of IPC and
       other directing that the charge under Section 302 of IPC should not
       be framed.
5.     In our opinion, once the Single Judge, while deciding Criminal
       Writ Petition No. 4451/2022 formed an opinion that the judgment/
       order dated 16.12.2022 passed by the learned Single Judge was
       unsustainable and contrary to law, the matter should have been
       referred to a Division Bench/two-Judges Bench instead of passing a
       conflicting judgment in the same set of facts. Rule 8 of the Bombay
       High Court Appellate Side Rules, 1960, reads:
             “Reference to two or more Judges.- If it shall appear to any
             Judge, either on the application of a party or otherwise,
             that an appeal or matter can be more advantageously
             heard by a Bench of two or more Judges, he may report
             to that effect to the Chief Justice who shall make such
             order thereon as he shall think fit.”
6.     Previously, this Court in Lala Shri Bhagwan & Another v. Shri Ram
       Chand & Another1 held that:
             “It is hardly necessary to emphasise that considerations
             of judicial propriety and decorum require that if a learned
             Single Judge hearing a matter is inclined to take the
             view that the earlier decisions of the High Court, whether
             of a Division Bench or of a Single Judge, needed to be
             reconsidered, he should not embark upon that enquiry
             sitting as a Single Judge, but should refer the matter to
             a Division Bench or, in a proper case, place the relevant
             papers before the Chief Justice to enable him to constitute
             a larger Bench to examine the question.”
7.     Similarly, in Eknath Shankarrao Mukkawar v. State of Maharashtra2,
       this Court stated that:


1    [1965] 3 SCR 218 : AIR 1965 SC 1767
2    [1977] 3 SCR 513 : (1977) 3 SCC 25
[2024] 5 S.C.R.                                                             403

     Leonard Xavier Valdaris v. Jitendra Ramnayaran Rathod & Ors.


           “When there was a decision of a coordinate court, it was
           open to the learned Judge to differ from it but in that case
           the only judicial alternative was to refer it to a larger bench
           and not to dispose of the appeal by taking a contrary view.
           Judicial discipline as well as decorum should suggest that
           as the only course.”
8.   Accordingly, we are of the opinion that the impugned judgment
     dated 20.4.2023 would be treated as an order differing with the
     view expressed in the judgment/order dated 16.12.2022. It would
     be also treated as an order referring the matter to a larger Bench
     of two Judges/Division Bench for consideration.
9.   The impugned judgment/order is accordingly partly set aside and
     the appeal is allowed and disposed of in the aforesaid terms. We
     clarify we have not expressed any opinion on the merits of the case.
10. We request the Chief Justice of the High Court of Judicature at
    Bombay to constitute an appropriate Bench.


     Headnotes prepared by:                                 Result of the case:
     Swathi H. Prasad, Hony. Associate Editor              Appeal disposed of.
     (Verified by: Shibani Ghosh, Adv.)