2001 (12) TMI 71

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....udgment of this court (delivered by a Bench of three learned judges) in Nityananda Kar v. State of Orissa, AIR 1991 SC 1134; [1990] Suppl. 2 SCR 644 and that, "with utmost respect", they did "not agree with the reasoning and the conclusions reached therein". The learned judges set out four reasons why they disagreed with the said judgment. They then directed that these matters "be placed before a larger Bench of five judges of this court. The Registry to place the papers before the Chief justice for appropriate orders in this case." The question is whether two learned judges of this court can disagree with a judgment of three learned judges of this court and whether, for that reason, they can refer the matter before them directly to a Be....

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.... be heard by a Bench consisting of not less than two judges nominated by the Chief Justice. Clause (2) says that where, in the course of the hearing of any cause, appeal or proceeding, a Bench considers that the matter should be dealt with by a larger Bench, it shall refer the matter to the Chief justice, who shall thereupon constitute such a Bench for the hearing of it. Learned counsel submitted that the Bench of two learned judges that made the reference in this case did not overrule the judgment of three learned judges in the case of Nityananda Kar [1990] Suppl. 2 SCR 644 ; AIR 1991 SC 1134, as they could have, on the basis of an earlier Constitution Bench judgment (which, incidentally, is not even mentioned in the referral order), but h....

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....hree learned judges, if it also took the same view of Nityananda Kar [1990] Suppl. 2 SCR 644; AIR 1991 SC 1134, could have referred the case to a Bench of five learned judges. In the present case the Bench of two learned judges has, in terms, doubted the correctness of a decision of a Bench of three learned judges. They have, therefore, referred the matter directly to a Bench of five judges. In our view, judicial discipline and propriety demands that a Bench of two learned judges should follow a decision of a Bench of three learned judges. But if a Bench of two learned judges concludes that an earlier judgment of three learned judges is so very incorrect that in no circumstances can it be followed, the proper course for it to adopt is to....