Ramveer alias Omveer vs Superintendent, District Jail and Others

S.P. Srivastava, J.—Heard Sri Arvind Tripathi, learned Additional Government Advocate, Sri S.F.A. Naqvi, learned Counsel representing Union of India, Respondent No. 4 and Sri D.S. Misra, learned Counsel for the Petitioner.

On 12.6.95, the learned Counsel representing the Respondent - state had raised a preliminary objection to the effect that this writ petition praying for the issuance of a writ in the nature of habeas corpus Is cognizable by a Division Bench alone and cannot be heard and finally disposed of by the single Judge nominated as a Vacation Judge as contemplated under Chapter V, Rule 10 of the Rules of the Court.

The present writ petition was admitted on 1.5.95 by a Division Bench. Under its order dated 1.5.95, the Division Bench while granting Respondents two weeks'' time for filing a counter-affidavit and three days'' time to the Petitioner for filing a rejoinder affidavit, had directed that the writ petition be listed for hearing Immediately thereafter in the normal course after the previous cases have been listed, for hearing. On 5.6.95, the present writ petition was listed before the Vacation Judge. Under the order passed by the Vacation Judge dated 5.6.95 the record of the case was put up before the Senior Vacation Judge who passed an order for the case being put up before Hon''ble Mr. Justice B.S. Chauhan. On 7.6.95 when the case was put up before Hon''ble Mr. Justice B. S. Chauhan, another Vacation Judge, he, however, passed an order that it was not possible for him to dispose of this case either on that or on the next date and in the circumstances, the learned single Judge directed that the file be put up before the Senior Vacation Judge for appropriate orders whereupon the learned Senior Vacation Judge passed an order directing that the file be put up before Hon''ble S.P. Srivastava, J, another Vacation Judge, on 12.6.95. It is in these circumstances that the file of this case had been put up before me for disposal on 12.6.95 on which date the preliminary objection was raised as noticed hereinabove.

The provisions contained in Chapter V, Rule 10 of the Rules of the Court stipulate that criminal work of the court shall continue to be dealt with during the vacation by such Judges as may be appointed for the purpose by the Chief Justice who may also exercise original, appellate, revulsion, civil or writ jurisdiction vested in the Court in fresh matters which in their opinion require immediate attention. These provisions also stipulate that such jurisdiction may be exercised even in cases which are under the Rules cognizable by two or more Judges, unless the case is required by any other law to be heard by more than one Judge.

Sub-clause (2) of Rule 10 of Chapter v. of the Rules of the Court provides that subject to any general or special order of the Chief Justice, the senior-most Vacation Judge at Allahabad or Lucknow, as the case may be, shall in the absence of the Chief Justice, exercise jurisdiction at Allahabad or Lucknow, as the case may be, in connection with the arrangement of Benches, listing of cases and other like matters.

While providing for the exercise of the jurisdiction of a single Judge, the provisions contained in Rule 2 of Chapter v. of the Rules of the Court stipulate apart from other things that the Chief Justice may direct that any case or class of cases which may be heard by a Judge sitting alone shall be heard by a Bench of two or more Judges or that any case or class of cases which may be heard by a Bench of two or more Judges, by a Judge sitting alone.

Learned Counsel for the Respondent-state has urged that as provided Under Rule 1 of Chapter XXI of the Rules of the Court, an application under Article 226 of the Constitution for a writ in the nature of habeas corpus except against private custody can be made to the Division Bench appointed to receive applications and on any such day on which no such Bench is sitting, to the Judge appointed to receive applications in civil matters who shall direct that the application be laid before a Division Bench for orders. The contention is that a petition for habeas corpus like the present one which Is not directed against private custody an be heard and finally disposed of by a Divlsion"Bench alone.

It should not be lost sight of that a statute should be construed so as to promote the general legislative purpose and the purposive approach should be adopted, that Is to say, that one should not go merely by the letter of the statute but by the spirit of it. It seems to me that filling in of a gap which amounts to a naked usurpation of the legislative function under the disguise of interpretation has to be avoided. However, as pointed out by the Apex Court, a mechanical approach to construction is altogether out of step with modern positive approach, which is to have a purposeful construction that is to effectuate the object and purpose of the statute. It seems to me that if necessary the gaps, if any, may be filled up even by judicial interpretation so that the provision may carry out the general legislative purpose.

Further, It has to be kept in mind that a provision should be given a construction which will best achieve the result to be attained and in determining either the general object of the Legislature or the meaning of its language In any particular passage, it is obvious that the intention which appears to be most in accord with convenience, reason, justice and legal principles should in all cases of doubtful significance be presumed to be the true one.

It may be noticed that the rules of the Court provide as contemplated Under Rule 1 of Chapter v. of the said rule that Judges should sit alone or in such Division Benches as may be constituted from time to time and do such work as may be allotted to them by order of the Hon''ble Chief Justice or in accordance with his direction. Rule 10 of Chapter v. of the Rules of the Court provides that the Judges appointed to discharge the function of the Court during vacation may exercise original, appellate, revulsion, civil or writ Jurisdiction vested in the Court in fresh matters which in their opinion require immediate attention. Rule 9 of Chapter VI of the Rules of Court provides that if on the day fixed for the hearing of any case or other matter, It appears that the requisite notices have been duly served, such case or other matter may be disposed of by the court on that day.

The learned Counsel for the Petitioner has urged that the provision contained In Rule 10 of Chapter v. of the Rules of Court is applicable to fresh matters only and not to other matters. The contention Is that the cases which had been presented prior to the start of vacation and the cases presented during vacation fall In two distinct and separate categories and, therefore, even if there is an order of the Senior Vacation Judge in exercise of the jurisdiction contemplated Under Rule 10(2) of Chapter v. of the Rules of the Court, the single Judge nominated as Vacation Judge cannot be deemed to be vested with the jurisdiction contemplated Under Rule 10(1) of Chapter v. of the Rules to dispose of finally a case during vacation, which case having been presented prior to the start of vacation Is normally cognizable by a Division Bench as it cannot be deemed to be a fresh case contemplated in that provision.

It seems to me that the provision contained in Rule 10(2) of Chapter v. of the Rules of the Court has an overriding effect and vest in the Senior Vacation Judge the power of the Chief Justice in the matter relating to constitution of Benches, listing of cases and other like matters. I am further of the view that the words listing of the cases'' is quite significant. It covers both the categories of cases that is those presented prior to vacation and those presented during the vacation. Further, the expression ''listing of cases and other like matters'' as used in Rule 10(2) of Chapter v. of the Rules of the Court is wide enough to cover the situation where the Senior Vacation Judge directs for putting up of a case either old or fresh for orders or hearing/final disposal before any Vacation Judge sitting singly or a Division Bench during the vacation.

It should not be lost sight of that where the words used in a statute do not express the legislative Intent perfectly; they have to be interpreted to find out the intention which is the essence of the statute. The language used in a statute may sometimes exceed or fall short of expressing the intended meaning. It is in such a case that interpretation is needed to free the expression from any meaning or concept which may shade, obscure or completely hide its true nature. The words "other like matters'' have to be understood in their cognate sense. Further, even applying the principle contained in the maxim nocturne a socials (a thing is known by its companions), assuming that these words take as it were the colour from the expression of the associate words, keeping in view the rule of ''harmonious construction'' and the object behind the provision in question, there can be no escape from the conclusion that the Jurisdiction of a Vacation Judge sitting singly to dispose of finally a case normally cognizable by a Division Bench put up before him for such purpose under the order of the Senior Vacation Judge, even If the case had been presented before the start of vacations, is not affected or curbed in any manner as contended. The contention of the learned Counsel for the Respondent is totally misconceived and Is not acceptable.

Considering the scheme underlying the Rules of the Court, there can be no manner of doubt that the Senior Vacation Judge stands vested with ample jurisdiction in the absence of the Chief Justice to pass requisite orders in connection with the arrangement of Benches, listing of cases and other like matters. The words "and other like matters" occurring in Sub-rule (2) of Rule 10 of the Rules of the Court must be construed generics the words preceding them. The jurisdiction envisaged under Sub-rule (2) of Rule 10 of Chapter v. of the Rules of the Court relating to the listing of cases and other like matters amply cover the situation envisaged under the proviso (a) to Rule 2 of the Chapter v. of the Rules of the Court. It seems to me that the jurisdiction which vests in the Chief Justice to direct any case or class of cases which may be heard by a Bench of two or more Judges to be heard by a Judge sitting alone is exercisable by the senior-most Vacation Judge by virtue of his nomination as such as envisaged Under Sub-rule (2) of Rule 10 of Chapter v. of the Rules of the Court.

I am in respectful agreement with the view expressed by the learned single Judge in the decision in the case of Bar Association. Board of Revenue, U.P. and Ors. v. State of U.P. and Ors. reported in 1992 RD 44, wherein it has been pointed out that the Senior Vacation Judge has ample jurisdiction to direct for listing of a case for hearing in exceptional cases in which there is utmost urgency. I may, however, add that a habeas corpus petition involving the liberty of the Petitioner has to be treated as a case of utmost urgency and an order passed by the Senior Vacation Judge exercising the Jurisdiction vesting in Hon''ble Chief Justice in his absence during vacations nominating another Vacation Judge sitting singly to dispose of a habeas corpus petition will vest the single Judge with the necessary Jurisdiction normally vesting in a Division Bench for dealing with such cases. The final disposal of the habeas corpus petition by a learned single Judge nominated as such will be well within jurisdiction.

It may further be noticed that the provisions contained in Rule 1 of Chapter XXI of the Rules of the Court regulate the procedure to be followed generally during the normal functioning of the court and cannot be deemed to have any application to the procedure specifically prescribed to be followed during vacations to meet extraordinary situation. It should not be lost sight of that the special always excludes the general.

In the present case, it is apparent from the record that the senior-most Vacation Judge nominated Under Sub-rule (2) of Rule 10 of Chapter v. of the Rules of the Court had passed an order directing the writ petition for being put up before the nominated Vacation Judge for disposal. This order passed by the Senior Vacation Judge has to be treated as an order passed under the proviso (a) of Chapter V, Rule 2 of the Rules of the Court and consequently in view of my conclusions indicated hereinabove, the preliminary objection raised by the learned Counsel for the Respondents is totally devoid of merits and deserves to be and is, hereby rejected.