What is the Fate of Law when Supreme Court Judges of different benches offer conflicting Judicial Opinions on the same kind of legal matter and H.C. judges do not follow S.C. precedents?

The Supreme Court (M/s Neeharika Infrastructure Pvt. Ltd v. the State of Maharashtra) ruled that even in a case where the High Court is prima facie of the opinion that an exceptional case is made out for grant of interim stay of further investigation in a petition under Section 482 of the Code of Criminal Procedure or Article 226 of the Constitution, it has to give brief reasons as to why such an interim order is warranted and/or is required to be passed.

At the ad interim stage, the High Courts must include one small paragraph on what weighed with them in granting the relief. We are not saying at all that the High Courts are bereft of this power! But because it is a wide power, it is expected to be exercised responsibly, observed Supreme Court bench of Justices Chandrachud, M. R. Shah, and Sanjiv Khanna. “The reasoning is essential not just for the lawyers but also for the higher Court. We are not asking for a detailed reasoned order, but something based on which we can say with certainty that there has been an application of mind; that it is a special case or extraordinary case that warrants the order, you have to give us a flavor of that “ (Justice Shah).

Also, in granting such a relief, the rights of the investigating agency are also interfered with. So you must give some reasons (Justice Shah).”

“When High Courts mechanically issue notice, then the burden of 482 petitions becomes so large. When you apply your mind, the time taken is quantumly multiplied. The backlog becomes so large” (Justice Chandrachud), and it was suggested that instead, spending 3 to 5 minutes at the outset itself may make it clear that there is nothing in some petitions to warrant any intervention.

In another recent decision in Arnab Goswami v. the State of Maharashtra (Arnab Goswami), S.C. held that while adjudicating a quashing petition, the H.C. is duty-bound to undertake a prima facie evaluation of whether the ingredients of the alleged offence have been established in the F.I.R.

Whereas, in a low profile case, when it was challenged for a non-reasoning order arising out of Sec 482 CRPC, under article 227 arising out of the Single Bench of Bombay High Court; on 15^th November 2021, the Bench of Justice S. K. Kaul and Justice M. M. Sundresh observed that As the order is in the nature of interim order, and the High Court having already set-down the case for hearing, we are not inclined to interfere with the impugned order. In Section 482, Article 227 case, when it was queued up in the final board hearing, it has no time certainty, and by granting stay, the H.C. has protected the Accused, but the Bench has not gone into details.

The S.C. clearly stated that an interim order directing the stay of investigation can be passed with circumspection and should not be passed in a routine or mechanical manner. It was held that if the H.C. is prima facie of the opinion that an exceptional case is made out for a stay of investigation, it can pass such an order after considering the parameters framed under Section 482 CrPC, read with Article 226 of the Constitution.

The SC also highlighted two illustrative cases where a stay of investigation shall be justified – (a) if there is an abuse of process of law, by converting a purely civil dispute into a criminal dispute, to pressurize the accused; and (b) The complaint is prima facie barred by law, and the allegations in the F.I.R. do not disclose any cognizable offence.

In a section 482 case under Article 227, when Justice S.K. Shinde bench of Bombay High Court has given an interim order (in a Criminal W.P 5098/2018), he did not bother to consider precedents while issuing interim orders without reasoning (non-speaking order) and without a detailed hearing or consideration. The matter which had come up for hearing on 15^th September 2021 under physical mode was called at 1.25 P.M, just before the lunchtime of 1.30 P.M. when there were few people present except for the court staff and a group of lawyers from Petitioners’ side and two lawyers from the Respondents’ Original Complainants’ side.

Nobody opened the legal briefs; it just started as a casual discussion between the Petitioner Advocate and the Judge. Based on the wrong premises provided by the Petitioner Advocate, the Bench constructed a phrase that has no relevance to the case. An order was whispered to the steno, the entire process completed in 3 minutes, and subsequently, after 2 days, the same was made available on the Bombay High Court Website. This order protected the Accused, stalled the Lower Court's Trial, and posted the matter for a final board hearing. There was an order earlier that the total consideration be given at the admission stage only.

The precedents and law are clear that,

1. Exercise of power under Section 482 CRPC is not the rule but an exception (Som Mittal v. Government of Karnataka – 2008, 3 SCC 753). The inherent power should not be exercised to stifle a legitimate prosecution (Janatadal v. H.S. Chowdhary & Others – 1992, 4 SCC 304; the State of M.P. v. Awadh Kishore Gupta and Others – A.I.R. 2004 SC 517; Manjula Sinha v. State of U.P. & Others – 2007 AIR SCW 4555).
    
2. High Court not to usurp the jurisdiction of the trial court. Invoking the inherent power before the commencement of trial and letting in of evidence is not desirable; the power should be exercised only in exceptional cases (the State of Bihar and another v. K.J.D. Singh – 1993 AIR SCW 2861=1993 Crl.L.J.3537 SC). While exercising inherent jurisdiction, the High Court should not usurp the jurisdiction of the trial court (State of Bihar v. Murad Ali Khan and Others – A.I.R. 1989 SC1; Radhey Shyam Khemka and another v. State of Bihar – 1993 Crl. L.J. 2888 SC; Ganesh Narayan Hegde v. Bangarappa and Others – 1995 Crl. L.J. 2935 SC).
    
3. While exercising jurisdiction U/s. 482 CRPC, the High Court will not embark upon an inquiry as to whether evidence on record is reliable or not to sustain the accusation against the accused (Jehan Singh v. Delhi Administration – 1974, 1 SCWR 691; Hazarilal Gupta v. Rameshwar Prasad – 1972, 1 S.C.W.R. 71; Hareram Satpathy v. Tikaram Agarwala – A.I.R. 1978 SC 1568; Superintendent and Remembrancer of West Bengal v. Ashutosh Ghosh – 1979, 4 SCC 381).
    
4. The High Court should not, in the exercise of jurisdiction under Section 482, embark upon an inquiry into whether the evidence is reliable or not, or whether on a proper appreciation of the evidence the allegations are not sustainable, for this is the function of the trial Judge. This proposition arises from the judgment of Zandu Pharmaceutical Works Ltd. and Ors. v.Mohd. Careful Haque and Another(2005, 1 SCC 122).
    
5. High Court rightly refused to quash the criminal complaint (Chilakamarthi Venkateswarlu & Anr. v. State of Andhra Pradesh & Anr, (SCC CRIMINAL APPEAL NO. 1082 OF 2019; ARISING OUT OF SLP (C.R.L.) NO. 10762 OF 2018).

With the help of the above illustrations and case citations, we can find that different benches of the Supreme Court are delivering different judgments for the cases with the same underlying ingredients. Moreover, the H.C.s are conveniently ignoring the S.C. verdicts. It is the litigant who is facing the music of these vivid deliveries of these learned people. Who will integrate their knowledge for all to give some law to all the litigants? Who will monitor the cognitive outcomes of these benches and see that justice is the same for all and that it will not differ from person to person? Ultimately, Justice must not only be done but also seem to be done.”

While the conclusions of S.C. were to ensure that the H.C.'s follow a consistent approach, S.C. could have further clarified that a stay of investigation shall also be warranted if it has been initiated with a mala fide objective or an ulterior motive.

This Hon’ble Supreme Court in Madhya Pradesh Industries Ltd. vs. Union of India (U.O.I.) and Ors. (1966)1SCR466, held that:
…The compulsion of disclosure guarantees consideration. The condition to give reasons introduces clarity and excludes or, at any rate, minimizes arbitrariness; it gives satisfaction to the party against whom the order is made. It also enables an appellate or supervisory court to keep the tribunals within bounds. Hence, a reasoned order is a desirable condition of judicial disposal.

This principle has been reiterated in Kranti Associates (P) Ltd. v. Masood Ahmed (2010) 9 SCC 496 and more recently in Neeharika Infrastructure Pvt. Ltd. vs. State of Maharashtra and Ors. AIR2021SC1918, wherein this Hon’ble Court has held, ‘…Therefore, even while passing such an interim order, in exceptional cases with caution and circumspection, the High Court has to give brief reasons why it is necessary to pass such an interim order, more particularly when the High Court is exercising the extraordinary and inherent powers Under Section 482 Code of Criminal Procedure and/or Under Article 226 of the Constitution of India. Therefore, in the facts and circumstances of the case, the High Court has committed a grave error of law and facts in passing such an interim order of no coercive steps to be adopted, and the same deserves to be quashed and set aside.

It was observed by the Hon'ble Supreme Court that, High Court rightly refused to quash the criminal complaint. The power to quash the proceedings is generally exercised when there is no material to proceed against the Petitioners, even if the allegations in the complaint are prima facie accepted as accurate. The High Court in effect found, and rightly that the allegations in the complaint coupled with the statements recorded by the learned Magistrate had the necessary ingredients of the offence

The judiciary derives its powers from the Constitution. The Supreme Court has been granted ultimate powers to decide cases and resolve matters that lower courts have failed. To understand what the fate of law would be should the judges on a Supreme Court bench reach conflicting judicial opinions or judgments on the same issue, one must consider the make-up of the Supreme Court and the proceedings that the Court undertakes (Epstein, Landes & Posner, 2013). These proceedings have been made to help reach a ruling that may be used to set a precedent, something that the common law structures of the U.S. Constitution and others like it depend upon.

According to the Constitution, the Supreme Court has both the original and appellate jurisdiction for cases brought before it. In addition, in India, the Court also serves an advisory role on matters brought forth before the President of India (Singh, 2000). This means that in regards to original jurisdiction, the Supreme Court could be the first and only Court to hear a given case. However, these sorts of cases are limited by the Constitution to include the jurisdiction of cases mostly involving disputes between the states or disputes arising among dignitaries and ambassadors as well as other high-ranking ministers. On the other hand, the appellate jurisdiction means that the Supreme Court has the authority to review the decisions made by the lower courts should there arise any form of dispute about them (Singh, 2000). However, the majority of the cases that the Supreme Court gets the chance to hear are of the appellate nature where they receive appeals from lower court orders.

The Constitution gives proper directions as to how cases should be brought to the Supreme Court, how they should be heard, and the ratings' that would allow a decision to be reached (Epstein, Landes & Posner, 2012). It is worth knowing that once the Supreme Court has decided on a given matter, similar cases brought to it or other lower courts of the land would consider the previous decision as a precedent to be followed at all times. In considering the fate of the law, the central claims of law ought to be considered and understood. That is, the law's central claims to objectivity, neutrality, and reason need to be considered. In order to uphold these claims, the judicial procedures and the established precedent need to be followed and respected by all the judges.

In recognizing the importance of upholding precedent, the Union of India Vs. Raghubir Singh Case (A.I.R. 1989 SC 1933) held that “The doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part daily affairs. Hence, therefore, the need for a clear and consistent enunciation of legal principle in the decisions of a court.”

So, what is the doctrine of precedent, and what does it entail? According to Brett Kavanaugh, an Associate Justice of Supreme Court of India:
A judge must interpret statutes as written. And a judge must interpret the Constitution as written, informed by history and tradition and precedent.

Thus, in the general judicial sense, we can describe precedent as the guidance or authority brought about from past decisions for future cases. When such a decision has brought about the creation of some new rules or principles, these rules and principles are what is called judicial precedents (Singh, 2000).

When it comes to hearing cases brought forth in the Supreme Court, usually a bench consisting of five or more judges is considered; in some instances, the country's chief justice is present among the judges. When the Supreme Court sits on a full bench, and a decision is reached among the judges, rarely is the decision unanimous. Depending on the number of judges on the Bench, the decision is usually achieved by considering the number of judges leaning towards a given direction against those leaning towards the other.

It is worth noting that the Supreme Court is such that it rules on constitutional issues, which once decided upon, the judgments are virtually final. They can only be altered through a rarely used constitutional amendment procedure or by a new ruling of the Court. According to Article 145(3), when it comes to cases that involve the interpretation of the Constitution, the Supreme Court of India sits on a bench of at least 5 judges (Singh, 2000).

The possibility of the Supreme Court judges to come to conflicting decisions in a given case that has an established precedent is virtually impossible. Therefore, upon hearing submissions by the plaintiffs' and defendants' legal representation and considering all the facts and all the case laws presented by both parties, the judges deliberate upon conducting their own assessment of the facts and come up with their independent judgments (Danziger, Levav & Avnaim-Pesso, 2011). These judgments are then shared among themselves, and a ruling is reached upon considering all the opinions that the judges on the Bench have about the case. Therefore, this ruling, as earlier stated, becomes final and will be recorded as one to be used in determining future cases of the same merits.

Conclusive Summary.
The Indian Constitution is tasked with putting the interests of the people ahead of all else. So too does U.K.'s and U.S.A.'s constitutions. The Supreme courts in these respective countries are such that they are given the power to decide on cases that challenge the Constitution. In making these decisions, five or more judges, sometimes including the chief justices of these countries, sit on these benches to decide on these cases. The judiciary is a branch of government tasked with safeguarding the rule of law when it comes to a constitutional democracy like India. In efforts to do so, the judiciary system has been given the authority to ensure the rights and freedoms of the people of India.

Supreme Court decisions have been established in a manner that has order and direction. The fate of law when it comes to the judgments of the Supreme Court judges is such that it seeks to uphold the constitutional claims to objectivity, neutrality, and reason. For that reason, different benches of the Supreme Court could not deliver different judgments for the same case. Should there be a precedent set, then they would instead consider it and decide upon the case taking into account the decision of the earlier Supreme Court ruling.

References

• Bandewar, S. V., Chaudhuri, L., Duggal, L., & Nagral, S. (2018). The Supreme Court of India on euthanasia: Too little, too late. Indian Journal of Medical Ethics, 3(2), 91-94. https://dx.doi.org/10.20529/IJME.2018.028
• Danziger, S., Levav, J., & Avnaim-Pesso, L. (2011). Extraneous factors in judicial decisions. Proceedings of the National Academy of Sciences of the United States of America, 108(17), 6889-6892. https://dx.doi.org/10.1073/pnas.1018033108
• Dhami M. K. (2005). From discretion to disagreement: Explaining disparities in judges' pretrial decisions. Behavioral Sciences & the Law, 23(3), 367-386. https://dx.doi.org/10.1002/bsl.619
• Epstein, L., Landes, W. M., & Posner, R. A. (2012). Are even unanimous decisions in the United States Supreme Court ideological? Northwestern University Law Review, 106(2), 699-713.
• Epstein, L., Landes, W. M., & Posner, R. A. (2013). How business fares in the Supreme Court. Minnesota Law Review, 97(5), 1431-1472.
• Kanniyakonil S. (2018). New developments in India concerning the policy of passive euthanasia. Developing World Boethics, 18(2), 190-197. https://dx.doi.org/10.1111/dewb.12187
• Singh, M. P. (2000). Securing the independence of the judiciary: The Indian experience. Indiana International and Comparative Law Review, 10(2), 245-292. https://dx.doi.org/10.18060/17703

Written By: Dr. V.V.L.N. Sastry - Legal Counsel, Lex India Juris