KRISHNAN & ORS.versusSTATE OF HARYANA & ORS.

                       [2013] 3 S.C.R. 254


A                      KRISHNAN & ORS.
                                v.
                  STATE OF HARYANA & ORS.
                (Criminal Appeal No. 973 of 2008)
                           MAY 7, 2013
B
        [DR. B.S. CHAUHAN AND FAKKIR MOHAMED
                  IBRAHIM KALIFULLA, JJ.)

        Narcotic Drugs and Psychotropic Substances Act, 1985:
c
       s.32-A - Sentence awarded under the Act, not to be
  suspended, nor any remission/commutation to be ordered -
   Questions (i) Whether s.32-A is violative of Arts. 72 and 161
  .of Constitution of India; and (ii) whether s.32-A NDPS Act is
0 violative of Arts 14 and 21 of the Constitution of India,
  inasmuch as the same abrogates the rights of a convict under
  the Act to be granted remission/commutation, etc. - Refe"ed
  to larger Bench - Constitution of India, 1950 - Arts. 14, 21,
   72 and 161.

E      The instant appeal arose out of the decision of the
  High Court upholding the validity of the letter dated
  28.6.2006 issued by the Deputy Inspector General of
  Prisons, Haryana giving effect to provisions of s.32-A of
  the Narcotic Drugs and Psychotropic Substances Act,
F 1985. The High Court held that the appellants were not
  entitled to relief sought for by them.
        Referring the matter to larger Bench, the Court
      HELD: 1.1. The validity of s.32-A, so far as the
G competence of the court is concerned, was partly struck
  down. As to the question of imposing complete embargo
  on remission and commutation in the context of Arts 72
  and 161 of the Constitution of India, the issue was not
  conclusively decided by the court. More so, in paragraph
H                           254
KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 255

15, the reference has been made that such exclusion             A
cannot be held as unconstitutional on account of it not
being absolute, in view of the constitutional powers
conferred upon the executive. Articles 72 and 161 of the
Constitution empower the President of India and the
Governor of a State to grant pardons, re'prieves, respites      B
or remissions of punishments or to suspend, remit or
commute the sentence of any person convicted of any
offence against any law relating to a matter to which the
executive power of the Union and State exists. [para 5)
[262-E-G]                                                       C

    Dadu @ Tulsidas V, State of Maharashtra, (2000) 8 SCC
437 - referred to.

    1.2. In fact, Art. 72 and 161 of the Constitution provide
for residuary sovereign power, thus, there could be             D
nothing to debar the authorities concerned to exercise
such power even after rejection of one clemency petition
and even in the changed circumstances. [para 7) [263-E]

     Krishta Goud and J. Bhoomaiah v. State of Andhra           E
Pradesh & Ors., (1976) 1 SCC 157; State of Haryana & Ors.
v. Jagdish 2010 (3) SCR 716 =AIR 2010 SC 1690; State of
Uttar Pradesh v. Sanjay Kumar 2012 (7) SCR 359 = (2012)
8 sec 537- referred to

     1.3. This Court has always clarified that the              F
punishment of a fixed term of imprisonment so awarded
would he subject to any order passed in exercise of the
clemency powers of the President of India or the
Governor of the State, as the case may be. Pardons,
reprieves and remissions under Art. 72 or Art. 161 are          G
granted in exercise of prerogative power. There is no
scope of Judicial review of such orders except on very
limited grounds. The power to grant pardons and to
commute sentences is coupled with a duty to exercise
the same fairly and reasonably. Administratior:t of justice     H
    256       SUPREME COURT REPORTS            [2013] 3 S.C.R.


A cannot be perverted by executive or political pressure. Of
  course, adoption of uniform standards may not be
  possible while exercising the power of pardon. Thus,
  directions of the court specifying a minimum term of
  incarceration do not interfere with the sovereign power
B of the State. Such directions have been passed by courts
  considering the gravity of the offences directing that the
  accused would not be entitled to be considered for
  premature release under the guidelines issued for that
  purpose i.e. under Jail Manual, etc. or even u/s 433-A
c Cr.P.C. [para 9) [262-C-F]
       Epuru Sudhakar & Anr. v. Government of A.P. & Ors.,
  2006 (7) Suppl. SCR 81 = (2006) 8 SCC 161; Union of India
  & Ors. v. Ind-Swift Laboratories Limited, 2011 (2) SCR 1087 =
  (2011) 4 SCC 635; Sardar Syedna Taher Saifuddin Saheb
D v. State of Bombay 1962 Suppl. SCR 496 =AIR 1962 SC
  853- referred to

       1.4. Keeping in view the decisions of this Court and
  the submissions made in the instant appeal, the appeal
E raises the following substantial questions of law:

          (i) "Whether s.32A NDPS Act is violative of Arts. 72
          and 161 of the Constitution of India"; and

          (ii) "Whether s.32A NDPS Act is violative of Arts. 14
F         and 21 of the Constitution of India, inasmuch, as the
          same abrogates the rights of an accused/convict
          under the Act to be granted remission/ commutation,
          etc." [para 13) [267-D-F]

G        1.5. This Court is of the opinion that the matter
    requires to be considered by a larger bench, either by a
    three Judges Bench first or by a five Judges Bench
    directly. [para 16) [268-E]

      Coir Board Emakulam & Anr. v. Indira Devai P.S. & Ors.,
H (2000) 1 SCC 224, Bangalore Water Supply & Sewerage
 KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 257


Board v. A Rajappa, 1978 (3) SCR 207 =AIR 1978 SC 548;           A
Pradip Chandra Parija & Ors. v. Pramod Chandra Patnaik &
Ors., AIR 2002 SC 296; Union of India & Anr. v. Hansoli Devi,
(2002) 7 sec 273- referred to

                    Case Law Reference:
                                                                 B
    (2000) 8 sec 437             referred to      para 4

    (1976) 1 sec 157             referred to      para 7

    2010 (3) SCR 716             referred to      para 8
                                                                 c
    2012 (7) SCR359              referred to      Para 9

    2006 (7) Suppl. SCR 81       referred to      Para 10

    2011 (2) SCR 1087            referred to      Para 11

    1962 Suppl. SCR 496          referred to      para 12        D

    (2000) 1 sec 224             referred to      Para 13
     1978 (3) SCR 207            referred to      Para 14
     (2002) 1 sec 213            referred to      para 15        E
    CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 973 of 2008.

    From the Judgment & Order dated 22.02.2007 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Misc.      F
No. 63845-M of 2006.

    Rekha Pandey for the Appellants.

    Paras Kuhad (A.C.), ASG, Huz;efa Ahrnadi'(A.C.),
Pradhuman Gohil, Vikash Singh, Mrinmayee S., Rajiv Gaur          G
'Naseem', Kamal Mohan Gupta, Zahid Hussain ;for the.
Respondents.                                   "
                                                    1'
    The Judgment of the Court was delivered by      ·~ ·
                                                    ~··         "ti
    258        SUPREME COURT REPORTS                [2013] 3 S.C.R.

A         DR. B.S. CHAUHAN, J. 1. This appeal has been
  preferred against the judgment and order dated 22.2.2007
  passed by the High Court of Punjab and Haryana at Chandigarh
  in Criminal Misc. No. 63845-M of 2006, wherein the High Court
  has upheld the validity of the letter dated 28.6.2006 issued by
B the Deputy Inspector General of Prisons, Haryana, giving effect
  to the provisions of Section 32-A of Narcotic Drugs and
  Psychotropic Substances Act, 1985 (hereinafter referred to as
  'NDPS Act').

       2. The High Court referring to various provisions of the
C Punjab Jail Manual held that the appellants are not entitled to
  any remission in view of the provisions of Section 32-A of NDPS
  Act. Section 32-A of the NDPS is reproduced herein as under:

          "32A. No suspension, remission or commutation in
D         any sentence awarded under this Act-Notwithstanding
          anything contained in the Code of Criminal Procedure,
          1973 or any other law for the time being in force but subject
          to the provisions of Section 33, no sentence awarded
          under this Act (other than Section 27) shall be suspended
E         or remitted or commuted."
       3. The High Court has held that legal provisions concerning
  remission are governed by the statutory provisions as laid down
  in Punjab Jail Manual rather than under Article 161 of the
F Constitution of India. The provisions of Section 32-A of NDPS
  Act would have overriding effect, notwithstanding anything
  contained in the Code of Criminal Procedure, 1973 (hereinafter
  referred to as 'Cr.P.C.'), or any other law for the time being in
  force. Thus, the appellants were not entitled for the relief sought
  by them.
G
      4. This Court while examining the issue, has considered
  the three Judge Bench judgment of this Court in Dadu
  @Tulsidas v. State of Maharashtra, (2000) 8 SCC 437,
  wherein the validity of the said provisions was challenged.
H Relevant part of the judgment reads as under:
'KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 259
            [DR. B.S. CHAUHAN, J.]
     "1 ... .... The section is alleged to be arbitrary,           A
   discriminatory and violative of Articles 14 and 21 of the
   Constitution of India which creates unreasonable
   distinction between the prisoners convicted under the Act
   and the prisoners convicted for the offences punishable
   under various other statutes. It is submitted that the          B
   legislature is not competent to take away, by statutory
   prohibition, the judicial function of the court in the matter
   of deciding as to whether after the conviction under the
   Act the sentence can be suspended or not. The section
   is further assailed on the ground that it has negated the       C
   statutory provisions of Sections 389, 432 and 433 of the
   Code of Criminal Procedure ........ It is further contended
   that the legislature cannot make relevant
   considerations irrelevant or deprive the courts of their
   legitimate jurisdiction to exercise the discretion. It is       D
   argued that taking away the judicial power of the
   appellate court to suspend the sentence despite the
   appeal meriting admission, renders the substantive right
   of appeal illusory and ineffective.
                                                                   E
   xxx      xxx         xxx        xxx             xxx
   15. The restriction imposed under the offending section,
   upon the executive are claimed to be for a reasonable
   purpose and object sought to be achieved by the Act.            F
   Suc_h exclusion cannot be held unconstitutional, on
   account of its not being absolute in view of the
   constitutional powers conferred upon the executive.
   Articles 72 and 161 of the Constitution empowers the
   President and the Governor of a State to grant pardons,         G
   reprieves, respites or remissions of punishments or to
   suspend, remit or commute the sentence of any person
   convicted of any offence against any law relating to a
   matter to which the executive power of the Union and
   State exists ..... The distinction of the convicts under the    H
                                                                          /
                                                                    ....
                                                                     /,
                                                                         / .i .
    260     SUPREME COURT REPORTS                 (2013) 3 S.C.R.

A        Act and under other statutes, insofar as it relates to the
         exercise of executive powers under Sections 432 and 433
         of the Code is concerned, cannot be termed to be either
       . arbitrary or discriminatory being violative of Article 14 of
         the Constitution./ Such deprivation of the executive can
B        also not be stretched to hold that the right to life ·or a
         person has been taken away except, according to the
         procedure established.by law. It is not contended on
         behalf of the petitioners that the procedure prescribed
      · under. the Act for holding the trial is not reasonable, fair
c        and just. The offending section, insofar as it relates to
         the executive in the matter of suspension, remission
         and commutation of sentence, after conviction; does
         not, in any way, encroach upon the personal liberty
         of the convict tried fairly and sentenced under the Act
         The procedure prescribed for holding the trial under the
D
         Act cannot be termed to be arbitrary, whimsical or fanciful.
         There is, therefore, no vice of unconstitutionality in the
         section insofar as it takes away the powers of the
         executive conferred upon it under Sections 432 and 433
         of the Code, to suspend, remit or commute the sentence
E        of a convict under the Act.

          16. Learned counsel appearing for the parties were
          more concerned with the adverse effect of the.section ·                 ~4
          on the powers of the judiciary. Impliedly conceding
F         that the section was valid so far as it pertained to the
        . appropriate Government, it was argued that the
          legislature is not competent to take away the judicial
        ·powers of the court by statutory prohibition as Is
          shown to have been done vide the impugned section.
G   · · ·Awarding sentence, upon conviction, is concededly a
         judicial function to be discharged by the courts of law
          established in the country.· rt is always a matter ofjudicial
          discretion,· however, subject to any mandatory minimum
       · sentence prescribed by the law. The award of sentence
H        by. a criminal court wherever made subject to the· right of
KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 261
           [DR. S.S. CHAUHAN, J.]
  appeal cannot be interfered or interrneddled with in a way      A
  which amounts to not only interference but actually taking
  away the power of judicial review. Awarding the sentence
  and consideration of its legality or adequacy in appeal
  is essentially a judicial function embracing within its
  ambit the power to suspend the sentence under the               B
  peculiar circumstances of eacl? case, pending the
  disposal of the appeal.
  )()()(     xxx         xxx           xxx         xxx
        25. Judged from any angle, the section insofar as         C
  it completely debars the appellate courts from the power
  to suspend the sentence awarded to a convict under the
  Act cannot stand the test of constitutionality. Thus
  Section 32-A insofar as it ousts the jurisdiction of the
  court to suspend the sentence awarded to a convict              D
  under the Act is unconstitutional........

         26. Despite holding that Section 32-A is
  unconstitutional to the extent it affects the functioning of
  the criminal courts in the country, we are not declaring
  the whole of the section as unconstitutional in view of our     E
  finding that the section,. insofar as it takes away the right
  of the executive to suspend, remit and commute the
  sentence, is valid and intra vires of the Constitution. The
  declaration of Section 32-A to be unconstitutional, insofar
  as it affects the functioning of the courts in the country,     F
  would not render the whole of the section invalid, the
  restriction imposed by the offending section being distinct
  and severable.

       27. Holding Section 32-A as void insofar as it             G
  takes away the right of the courts to suspend the
  sentence awarded to a convict under the Act, would
  neither entitle such convicts to ask for suspension of
  the sentence as a matter of right in all cases nor
  would it absolve the courts of their legal obligations          H
    262        SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A         to exercise the power of suspension of sentence
          within the parameters prescribed under Section 37 of
          the Act.

                xxx             xxx                  xxx       xxx
B              29. Under the circumstances the writ petitions are
          disposed of by holding that:

               (1) Section 32-A does not in any way affect the
          powers of the authorities to grant parole.
c                (2) It is unconstitutional to the extent it takes away
          the right of the court to suspend the sentence of a convict
          under the Act.

                (3) Nevertheless, a sentence awarded under the Act
D         can be suspended by the appellate court only and strictly
          subject to the conditions spelt out in Section 37 of the
          Act, as dealt with in this judgment. (Emphasis added)

       5. Thus, it is evident from the aforesaid judgment that the
E validity of the aforementioned provisions, so far as the
  competence of the court is concerned, was partly struck down.
  As to the question of imposing complete embargo on remission
  and commutation in the context of Articles 72 and 161 of the
  Constitution of India, the issue was not conclusively decided by
  the court. More so, in paragraph 15, the reference has been
F made that such exclusion cannot be held as unconstitutional on
  account of it not being absolute, in view of the constitutional
  powers conferred upon the executives. Articles 72 and 161 of
  the Constitution empower the President of India and the
  Governor of a State to grant pardons, reprieves, respites or
G remissions of punishments or to suspend, remit or commute
  the sentence of any person convicted of any offence against
  any law relating to a matter to which the executive power of the
  Union and State exists.

H         6. A two Judge Bench of this Court heard the matter on
 KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 263
       .    [DR. B.S. CHAUHAN, J.]
8.1.1993 and prima facie had been of the view that on a plain         A
reading of Section 32-A of NDPS Act, it appeared to be quite
draconian and to understand the matter further, the Court
requested Shri Huzefa Ahmadi, learned senior counsel and
Shri Paras Kuhad, learned Additional Solicitor General, to
assist the Court as Amicus Curiae,· as to whether Section 32-         B
A of NDPS Act, would apply to the clemency powers of the
President of India and the Governor of the State and what could
be its applicability with respect to the statutory rules which have
been framed by the State, in exercise of its· executive powers
under the Constitution. In view thereof, both Shri Huzefa             C
Ahmadi, learned senior counsel and Shri Paras Kuhad, learned
ASG made their submissions pointing out that the powers of
clemency under Articles 72 and 161 of the Constitution, cannot
be controlled by any statute and, therefore, it requires a
clarification that the provisions of Section 32-A of NDPS Act
cannot be a fetter to the said powers of clemency by any means
                                                                      0
whatsoever.

     7. In fact, Articles 72 and 161 of the Constitution provide
for residuary sovereign power, thus, there could be nothing to
debar the concerned authorities to exercise such power even E
after rejection of one clemency petition and even in the changed
circumstances. (Vide: Krishta Goud and J. Bhoomaiah v. ·
State of Andhra Pradesh & Ors., (1976) 1 SCC 157).

     8. In State of Haryana & ·Ors. v. Jagdish, AIR 201 O SC          F
169d, this Court has considered as under:
     I
     f33. Articles 72 and 161 of the Constitution provide for a
     residuary sovereign power, thus, there can be nothing to
     debar the concerned authority to exercise such power,
     even after rejection of one clemency petition, if the            G
     changed circumstances so warrant.

    xx     xx                      xx                xx

     35. In view of the above, it is evident that the clemency        H
    264       SUPREME COURT REPORTS                 [2013] 3 S.C.R.

A         power of the Executive is absolute and remains
          unfettered for the reason that the provisions contained
          under Article 72 or 161 of the Constitution cannot be
          restricted by the provisions of Sections 432, 433 and 433-
          A Cr.PC. though the Authority has to meet the
8         requirements referred to hereinabove while exercising
          the clemency power.

          To say that clemency power under Articles 721161 of the
          Constitution cannot be exercised by the President or the
          Governor, as the case may be, before a convict
c         completes the incarceration period provided in the short-
          sentencing policy, even in an exceptional case, would be
          mutually inconsistent with the theory that clemency power
          is unfettered.

D         The Constitution Bench of this Court in Maru Ram, (AIR
          1980 SC 2147) (supra) clarified that not only the
          provisions of Section 433-A Cr. P.C., would apply
          prospectively but any scheme for short sentencing
          framed by the State would also apply prospectively. Such
E         a view is in conformity with the provisions of Articles 20(1)
          and 21 of the Constitution. The expectancy of period of
          incarceration is determined soon after the conviction on
          the basis of the applicable laws and the established
          practices of the State. When a short sentencing scheme
          is referable to Article 161 of the Constitution, it cannot be
F
          held that the said scheme cannot be pressed in service.
          Even if, a life convict does not satisfy the requirement of
          remission rules/short sentencing schemes, there can be
          no prohibition for the President or the Governor of the
          State, as the case may be, to exercise the power of
G         clemency under the provisions of Articles 72 and 161 of
          the Constitution. Right of the convict is limited to the
          extent that his case be considered in accordance with the
          relevant rules etc., he cannot claim premature release as
          a matter of right. n
H
  KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 265
             [DR. B.S. CHAUHAN, J.]
       9. In State of Uttar Pradesh v. Sanjay Kumar, (2012) 8        A
  SCC 537, this Court held that commutation of death sentence
  to a specified term of imprisonment without entitlement to
  premature release is the via media found by courts, where
  considering the facts and circumstances of a particular case,
  the court has come to the conclusion that it was not "the rarest   B
  of rare cases", warranting death penalty, but a sentence of 14
  years or 20 years, as referred to in the guideline laid down by
  the States, would be totally inadequate. Life imprisonment
  cannot be equivalent to imprisonment for 14 years or 20 years,
  rather it always means the whole natural life. This Court has      c
  always clarified that the punishment of a fixed term of
  imprisonment so awarded would he subject to any order
  passed in exercise of the clemency powers of the President
  of India or the Governor of the State, as the case may be.
· Pardons, reprieves and remissions under Article 72 or Article      0
  161 of the Constitution are granted in exercise of prerogative
  power. There is no scope of Judicial review of such orders
  except on very limited grounds. The power to grant pardons and
  to commute sentences is coupled with a duty to exercise the
  same fairly and reasonably. Administration of justice cannot he
                                                                     E
  perverted by executive or political pressure. Of course,
  adoption of uniform standards may not be possible while
  exercising the power of pardon. Thus, directions of the court
  specifying a minimum term of incarceration do not interfere with
  the sovereign power of the State. Such directions have been
  passed by courts considering the gravity of the offences           F
  directing that the accused would not be entitled to be
  considered for premature release under the guidelines issued
  for that purpose i.e. under Jail Manual, etc. or even under
  Section 433-A Cr.P.C.
                                                                     G
      10. In Epuru Sudhakar & Anr. v. Government of A.P. &
 Ors., (2006) 8 SCC 161, this Court held as under:

           "34. The position, therefore, is undeniable that
     judicial review of the order of the President or the            H
    266       SUPREME COURT REPORTS                 [2013] 3 S.C.R.


A      . Governor under Article 72 or Article 161, as the case may
         be, is available and their orders can be impugned on the
         following grounds:

          (a) that the order has been passed without application of
          mind;
B
          (b) that the order is ma/a fide;

          (c) that the order has been passed on extraneous or
          wholly irrelevant considerations;
c
          (d) that relevant materials have been kept out of
          consideration;

          (e) that the order suffers from arbitrariness."

o     11. It has further been submitted by the said learned senior
  counsel that reading down of provisions of Section 32-A of
  NDPS Act will not serve the purpose and he has placed a very
  heavy reliance on the judgment of this Court in Union of India
  & Ors. v. Ind-Swift Laboratories Limited, (2011) 4 SCC 635,
E wherein the Court observed:

                "19. This Court has repeatedly laid down that in the
          garb of reading down a provision it is not open to read
          words and expressions not found in the provision/statute
          and thus venture into a kind of judicial legislation. It is
F         a/so held by this Court that the rule of reading down is to
          be used for the limited purpose of making a particular
          provision workable and to bring it in harmony with other
          provisions of the $tatute. n
G        12. In Sardar Syedna Taher Saifuddin Saheb v. State of
    Bombay, AIR 1962 SC 853, this Court while dealing with the
    people of Bohra community, while interpreting the provisions
    of Article 25 and 26 of the Constitution,· and dealing with the
    particular Act held as under:
H         alt is not possible in the definition of excommunication
  KRISHNAN & ORS. v. STATE OF HARYANA & ORS. 267
             [DR. B.S. CHAUHAN, J.]
      which the Act carries, to read down the Act so as to         A
      confine excommunication as a punishment of offences
      which are unrelated to the practice of the religion which
      do not touch and concern the very existence of the faith
      of the denomination as such. Such an exclusion cannot
      be achieved except by rewriting the section."                8
      Thus, it is submitted that as far as the plain language of
 Section 32-A of NDPS Act is concerned, it is absolute in its
 terms and gives no leeway for remission or commutation of any
 sentence or any ground whatsoever, thus contrary to the
 mandate of Articles 72 and 161. There is no scope for reading     C
 down the section, as the language is absolute in its terms and
 the same cannot be read down without doing violence to the
 language.

      13. From the above. it is evident that the petition raises   o
 the following substantial questions of law:

       I.    Whether Section 32A NDPS Act is violative of
             Articles 72 and 161 of the Constitution of India.

       II.   Whether Section 32A NDPS Act is violative of          E
             Articles 14 and. 21 of the Constitution of India,
             inasmuch, as the same abrogates the rights of an
             accused/convict under the Act to be granted
             remission/commutation, etc.
                                                                   F
       14. In Coir Board Ernakulam & Anr. v. Indira Devai P.S.
. & Ors., (2000) 1 SCC 224, this Court while dealing with a
  similar reference by a Bench of two Judges doubting the
  correctness of seven Judges' Bench judgment in Bangalore
  Water Supply & Sewerage Board v. A Rajappa, AIR 1978 SC          G
  548, held as under:-

     "The judgment delivered by the seven learned Judges
     of the Court in Bangalore Water Supply case, does not,
     in our opinion, require any reconsideration on a reference
     being made by a two Judge Bench of the Court, which is        H
    268        SUPREME COURT REPORTS              [2013] 3 S.C.R.


A          bound by the judgment of the larger Bench. The appeals
           shall, therefore, be listed before the appropriate Bench
           for further proceedings."

        15. The Constitution Bench of this Court in Pradip Chandra
  Parija & Ors. v. Pramod Chandra Patnaik & Ors., AIR 2002
B SC 296, while dealing with a similar situation held that judgment
  of a co-ordinate Bench or larger Bench is binding. However,
  if a Bench of two Judges concludes that an earlier judgment of
  three Judges is so very incorrect that in no circumstances it can
  be followed, the proper course for it to adopt is to refer the
C matter to a Bench of three Judges setting out, the reasons why
  it could not agree with the earlier judgment. If, then, the Bench
  of three Judges also comes to the conclusion that the earlier
  judgment of a Bench of three Judges is incorrect, reference to
  a Bench of five Judges is justified. (See also: Union of India
D & Anr. v. Hanso/i Devi, (2002) 7 SCC 273)
        16. In view of the above, we are of the opinion that the
  matter requires to be considered by a larger bench, either by
  a three Judges Bench first or by a five Judges Bench directly.
E The papers may be placed before Hon'ble the Chief Justice
  of India for appropriate orders.

    R.P.                          Matter referred to Larger Bench.