Orissa High Court Single Judge Criticises Division Bench For Nullifying His Judgment On Passport Renewal Without Assigning Reasons

In a controversial development, a Single Judge Bench of the Orissa High Court comprising Justice Biswanath Rath has criticized and disapproved the manner in which a previous order rendered by him was declared not to be a ‘precedent’ by a Division Bench headed by former Chief Justice Dr. S. Muralidhar and also comprising Justice Gourishankar Satapathy.

While expressing disappointment over the brief order passed by the Division Bench, Justice Rath observed,

“…this Court in its entire practice period of 28 years and judgeship of 9 years has never come across in taking out the effect of such judgments in just three lines order by a higher Bench. There may not be any misunderstanding that the Division Bench has no jurisdiction, however, the Division Bench in such matter is required to apply its mind and give reason in taking out effect of such judgments otherwise such judgments will not be applicable in the legal parlance.”

Background

The matter revolved around the issue of renewal of passport of a lady, the petitioner in this case. As the passport issued to the petitioner was due for expiration, she had applied for its renewal. However, her application was not favourably considered by the renewal authorities as two criminal cases were pending against her.

Being aggrieved by the decision of the authority, she had approached the High Court. Reliance was placed upon a case earlier decided by the Single Bench of Justice Rath in Asutosh Amrit Patnaik v. State of Orissa & Ors. In the said case, the Court had directed the passport authority to renew the passport of the petitioner therein, though he had two criminal cases pending against him.

A writ appeal was preferred against the same order wherein the passport authority flagged that many writ petitions have been filed claiming similar reliefs where Asutosh Amrit Patnaik (supra) is being cited as a precedent. Considering the predicament of the authority, the Division Bench had observed the following:

“In that view of the matter, it is clarified that the impugned judgment will not constitute precedent and will be treated as having been passed in the peculiar facts and circumstances of the case. The questions of law arising from the said impugned judgment are left open for decision in some other appropriate case.”

Therefore, in the case in hand, when the judgment in Asutosh Amrit Patnaik (supra) was relied upon in favour of the petitioner lady, the Deputy Solicitor General appearing for the passport authority relied upon the aforesaid order of the Division Bench headed by Justice Muralidhar which had held that the Single Bench order cannot be accepted as a precedent.

Remarks Of Justice Rath

Justice Rath expressed his dismay upon discovering such an order of the Division Bench and asked even if his judgment in Asutosh Amrit Patnaik (supra) is not accepted as a precedent, whether it is still desirable to deny renewal of passport to the petitioner only because two criminal cases are pending against her, where she has already obtained bails.

He disapproved conduct of the passport authority in asking for a Court order allowing the petitioner to visit overseas. Justice Rath said that such a demand from the side of the authority is uncalled for as the trial Court has nowhere curtailed the petitioner’s right to visit abroad.

He surprisingly questioned as to why his judgment in the aforesaid case cannot be accepted as a precedent. He observed that the Division Bench did not assign any reason as to why his judgment shall not be a precedent.

“The Writ Appeal judgment with great humiliation and respect, this Court observes, it is absolutely unreasoned and unwarranted and appearing to be in abuse of process of law and in spite of the Single Bench judgment passed taking care of so many Hon’ble apex Court judgments indicating herein above allowing parties involved in grave criminal cases having there visiting overseas, the Division Bench appears to have completely ignored all such judgments, which have been passed by the Hon’ble apex Court even,” he observed.

Considering the facts and circumstances of the case, Justice Rath was of the view that the passport authority committed an illegality by asking for a Court clearance for renewal of the passport. Accordingly, he ordered the Regional Passport Officer to renew the passport of the petitioner within seven days.

Before parting with the order, he expressed his displeasure over the fact that the Division Bench headed by then Chief Justice Dr. S. Muralidhar decided that his order will not be considered as a ‘precedent’ without giving detailed reasons thereof.

“It is strange to observe here, there is perhaps a feeling in the Division Bench that they are having the absolute appellate authority over Single Bench judgment. Yes, there is no doubt, Writ Appeals lie in certain cases but only in letters patent otherwise there is no difference so far as functioning of the Single Bench and the Division Bench is concerned,” Justice Rath added.

Case Title: Madhusmita Samant v. Union of India & Anr.

Case No.: W.P.(C) No. 20169 of 2023

Date of Judgment: August 10, 2023

Counsel for the Petitioner: M/s. J. Pal, L. Dash, S.R.Pradhan & C. Mohapatra

Counsel for the Respondent: Mr. P.K. Parhi, DSGI & Mr. D.R. Bhokta, CGC

Citation: 2023 LiveLaw (Ori) 90

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