Smt. Mahraji vs State of U.P. and Another

B.N. Katju, J.—The I Additional Sessions Judge, Allahabad has referred the following questions of law, which arose in criminal revision No. 73 of 1984 Smt. Maharaji v. State of U.P. and Anr. pending before him, u/s 395(2) Code of Criminal Procedure for decision by this Court:

Whether the definition of National Highways contained in Section 4 of the National Highways Act 1956 can be borrowed and allowed to override the definition of road contained in Sub-section (vi) of Section 2 of U.P. Roadside Land Control Act 1945 as amended by U.P. Act No 6 of 1965 (Amendment coming in force retrospectively from April 15, 1957 i. e. the date of coming into force of the National Highways Act 1956) specially in view of the specific mention in Section 4 of National Highways Act 1956" for the purposes of this Act Highways included.

Whether the definition of road contained in Sub-clause (vi) of Section 2 of U.P. Roadside Land Control Act only refers to the metalled portion of the roads of all the roads including the national highways or in case of national highways it includes all the lands appurtenant as mentioned in Section 4 of National Highways Act.

Whether the proviso to Sub-clause (i) of Section 3 of the U.P. Roadside Land Control Act 1945 by which a particular area is declared to be controlled by the government refers only to the metalled road or to all lands appurtenant as defined in Section 4 of the National Highways Act with special reference and consideration to the Hindi and English version of the text of such relevant exception mentioned in the body of this reference.

It is mentioned in the referring order of the learned judge that these questions of law have been decided by A single Judge of this Court in State of U.P. v. Jagat Bahadur 1970 ACC 57, but certain important arguments do not appear to have been advanced before him as they have not been considered in that case.

In our opinion, the subordinate Courts are bound by the decision of this Court, which must be followed by them, even if some arguments, Which are advanced before them, have not been considered by this Court. It is for this Court to determine whether an earlier decision on a question of law by this Court requires reconsideration by a larger bench or not when the same question comes up before it for decision in a case subsequently. It is not open to the subordinate Courts to refer questions of law decided by this Court for reconsideration by a larger bench u/s 395(2) Code of Criminal Procedure. A question of law, which arises in a case pending before a subordinate Court, can be referred to this Court for decision u/s 395(2) Code of Criminal Procedure only if it has rot been decided by this Court. We are fortified in our view by the decision of this Court in the case of Karam Husain v. Mohammad Khalil 1946 RD 164, in which it has been held:

It is the bounden duty of the Judges of Courts subordinate to this Court to implicitly follow the decisions pronounced by this Court and we deprecate any attempt on their part to criticise them or to refuse to follow them. The rule that every Subordinate Judge is, in duty bound, loyally to accept the rulings of the High Court to which he is subordinate is a well recognised rule, to which attention has been called by this Court on A number of occasions. In the case of King Emperor v. Deni J.(1905) 2 AL 498 Stanely C.J. and Burkitt J. had to consider the genesis of this rule at some length and in the course of their judgment, they remarked that the Judge of a subordinate Court however brilliant and well-trained A lawyer he may be, is not entitled to assume the powers of an appellate Court or to refuse to follow the decision of the High Court to which his Court is subordinate, and that it is the duty of every Subordinate Judge to accept loyally the rulings of this Court unless and until they have been over-ruled by higher tribunal.... No authority is necessary for the proposition that a judicial precedent of a higher Court does not cease to be binding upon subordinate Courts merely because all the relevant reasons in support OR against the view taken by the higher Court are not mentioned in the judgment or the actual decision is based upon a reason which does not appeal to the subordinate Courts

and the decision in the case of Emperor v. Ismail Hirji AIR 1986 Bombay 49, in which it has been held:

...The learned Magistrate appears to doubt the correctness of the ruling in Emperor v. Abasbhai AIR 1926 Bombay 195 : 50 Bom. 344 though he admits that be is bound to follow it. I am of the opinion that it is not open to the Presidency Magistrate u/s 432 Code of Criminal Procedure to refer a point of law which is covered by an authority binding on him....

The result, therefore, is that the reference made by the learned judge for decision of the questions of law mentioned above is illegal and is accordingly rejected. The learned judge shall decide criminal revision No. 73 of 1984 Smt Maharaji v. State of U.P. and Anr. in accordance with the law laid down by this Court.

Reference rejected.