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CASE NO.: Special Leave Petition (crl.) 365  of  1999

PETITIONER: R.RATHINAM

       Vs.

RESPONDENT: STATE BY DSP, DISTRICT CRIME BRANCH

DATE OF JUDGMENT:       08/02/2000

BENCH: K.T. Thomas &  D.P. Mohapatra

JUDGMENT:

Thomas J. L...I...T.......T.......T.......T.......T.......T.......T..J

   Seventy  five  advocates, practising in  various  courts situated in Tamil Nadu, presented two petitions addressed to the  Chief Justice of Madras High Court for cancellation  of the  bail granted to certain persons.  It was further prayed therein that the Chief Justice might place the matter before a  Division  Bench of the High Court for its  consideration. On 4.5.1998, the Chief Justice of Madras High Court directed the petitions to be placed before a Division Bench.  Finally the  matters  came before the Division Bench  consisting  of T.Jayarama  Chouta and V.Bakthavatsalu, JJ.  Learned  Judges held  that  those  petitions,  presented  before  the  Chief Justice, are not maintainable and hence no proceedings could be  initiated  thereron.   Accordingly, the  Division  Bench "closed  the  suo  motu proceedings" by an order  passed  on 24.9.1998.   The  first among those advocates has moved  the petition  for  special leave in this Court against the  said order.  Leave is granted.

   The  back ground for presenting the said petitions is  a carnage  which  took  place  on 30.6.1997 at  a  village  in Madurai District.  In the gory episode six persons belonging to  a Scheduled Caste community were done to death.  One  of the  slaughtered  persons was described as President of  the local  Panchayat Committee.  The police arrested 34  persons in connection with the said massacre.  Though initially they were  not released on bail, subsequently by orders passed by Madras  High  Court in the months of March and  April  1998, many  of them were released on bail and that number  reached 30.   A brother of one of the deceased, in association  with some  other persons, submitted a representation to the Chief Minister  of Tamil Nadu on 16.4.1998, pressing him to  adopt steps  for moving the High Court to cancel the bail  granted to  those accused for reasons which have been elaborated  in the  representation.  But the Government did not  favourably respond  to  it.  It was in such a situation that  appellant and his colleagues at the Bar filed the petitions before the Chief Justice of the High Court.

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   Learned  Judges  of  the Division Bench  formulated  the following question:

   "When there is a statutory remedy to the aggrieved party by  filing  applications/petitions for cancellation  of  the bail  granted by the learned Judges of this court, whether a representation made by some Advocates who have nothing to do with  the  said case could be entertained by the High  Court and dispose of it on merits as a suo motu proceedings."

   While  answering  the said question the  Division  Bench pointed out that neither the State nor any aggrieved persons on  the  side  of the victims of the crimes moved  the  High Court  for  cancellation  of  the bail  granted  to  various accused  earlier.  At the same time learned Judges expressed that  the  competency  of the Chief Justice to  place  those petitions  before the Division Bench is undisputed and hence unquestionable.   However,  the Division Bench  doubted  the sustainability  of  petitions  filed by  some  advocates  in respect  of  a  matter  when remedy in a  proper  forum  was otherwise  available.   While  refusing to act on  the  said petitions  the  Division  Bench gave its  reasoning  in  the following lines:

   "The  petitioners by filing these memorandum before  the Honourable  Chief  Justice  seeking  to  initiate  suo  motu proceedings  by  posting it before a Division  Bench  cannot bye-pass  the statutory provisions.  If such representations are  entertained,  then  there will be no end and  the  High Court  will  be flooded with such petitions and the  genuine prayers  and the relief therein will be delayed and further, the judicial system itself will fall."

   We  agree with the learned Judges that neither those  75 advocates nor any other person can challenge the correctness of  the order passed by the Single Judge of the Madras  High Court  by moving the same High Court subsequently.  If  they had  any  grievance against the orders passed by the  single judge,  the only remedy open was to move this Court  seeking special  leave under Article 136 of the Constitution.   They have not done so.

   Be that as it may, the next question is whether the same High  Court  can  cancel the bail for  other  reasons.   The answer is explicit in Section 439(2) of the Code of Criminal Procedure.  It reads thus:

   "A  High  Court or Court of Session may direct that  any person  who has been released on bail under this Chapter  be arrested and commit him to custody."

   The  frame  of  the sub-section indicates that it  is  a power  conferred on the said courts.  Exercise of that power is  not banned on the premise that bail was earlier  granted by  the  High Court on judicial consideration.  In fact  the power  can be exercised only in respect of a person who  was released  on  bail  by an order already  passed.   There  is nothing  to  indicate that the said power can  be  exercised only  if the State or investigating agency or even a  public prosecutor moves for it by a petition.

   It is not disputed before us that the power so vested in the  High Court can be invoked either by the State or by any aggrieved party.  Nor is it disputed that the said power can

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be exercised suo motu by the High Court.  If so, any members of  the  public,  whether  he   belongs  to  any  particular profession or otherwise, who has a concern in the matter can move  the High Court to remind it of the need to invoke  the said  power suo motu.  There is no barrier either in Section 439  of the Code or in any other law which inhibits a person from moving the High Court to have such powers exercised suo motu.   If the High Court considers that there is no need to cancel  the  bail for the reasons stated in  such  petition, after  making  such considerations it is open for  the  High Court  to dismiss the petition.  If that is the position, it is  also  open to the High Court to cancel the bail  if  the High Court feels that the reasons stated in the petition are sufficient  enough for doing so.  It is, therefore, improper to refuse to look into the matter on the premise that such a petition is not maintainable in law.

   Every  matter to be decided by a High Court is  normally decided  by  a  two  Judge Bench of  the  High  Court.   For achieving  expediency  in disposal of cases,  statutes  have provided  that certain categories of cases can be heard  and disposed of by single judges of the High Court.  But it must be  pointed  out  that all matters which can  be  heard  and decided  by a single judge, can as well be heard and decided by a Division Bench but not vice-versa, subject to statutory restrictions   passed  by  the   legislature.   It  is   the prerogative  of  the Chief Justice of a High Court to  allot cases  to  different judges of the High Court for  disposal, subject to such statutory provisions.

   In State of Rajasthan vs.  Prakash Chand [1998(1) SCC 1] a  three  Judge Bench of this Court has held that the  Chief Justice  of  the High Court has a prerogative to  distribute business   of   the   High    Court,   both   judicial   and administrative.   "The  Chief Justice is the master  of  the roster.   He alone has the right and the power to decide how the  Benches of the High Court are to be constituted:  which Judge is to sit alone and which cases he can and is required to hear and also as which Judges shall constitute a Division Bench and what work those Benches shall do."

   Though the aforesaid position has not been deviated from by  the  Division  Bench  of the Madras  High  Court  it  is necessary  to  remind all concerned of the legal  principles involving  the prerogative of a Chief Justice.  The Division Bench  has gone wrong in holding that the petition submitted by  the  concerned  advocates was not maintainable  at  all. Refusing  to  exercise the suo motu powers  contemplated  in Section  439(2) cannot be on such a fallacious premise.  The Division  Bench  ought to have considered the  petitions  on merits.

   We  therefore, allow this appeal and set aside the order under  challenge.  A Division Bench of the Madras High Court will  now  hear the petitions afresh and dispose them of  in accordance  with  law and in the light of  the  observations made  above.  It is open to the Chief Justice of the  Madras High  Court to allot this matter before a Bench of that High Court.