GOPAL PASWAN v. THE STATE OF BIHAR

with the observation of an earlier Single Bench of this Court in the case of Sikandar Paswan directed that the matter be laid before Hon’ble the Chief Justice for deciding it “by a competent Bench”. Hon’ble the Chief Justice had directed the matter to be listed before us and accordingly, this issue has been posted for consideration before us. Mr.A.B.Ojha, appearing on behalf of the petitioner points out that a Single Judge sitting on the judicial side can adjudicate the matter entrusted to it by master of roles but cannot give general direction. He points out that the direction given by the learned Single Judge in the case of Sinkandar Paswan is nothing but usurping the power of the High Court conferred under Clause 30 of the Letters Patent. He points out that Clause 28 of 4 the Letters Patent confers on the learned Single Judge the jurisdiction to adjudicate the matter posted for consideration and, as such, the direction given by the learned Single Judge in the case of Sikandar Paswan (Supra) is absolutely erroneous and the same does not flow from the rule made by the Court. According to him, the view taken by the learned Single Judge in its order dated 28.8.2008 is correct and the rule no where mentions that a relative of the petitioner or a close family member would only swear affidavit. Mr.Tarakant Jha, Senior Advocate, appearing on behalf of the High Court, however, contends that while interpreting the provision of law or rule a Judge sitting on the judicial side can give direction of general nature and in case a Judge does so, it cannot be said that he has usurped the power of the High Court to make rules. In this connection, he has drawn our attention to Rule 8, Chapter III of Part II of the High Court Rules. Having given our most anxious consideration, we are not inclined to accept the submission of Mr.Ojha. The very assumption that the learned Single Judge while giving direction has usurped the power of the High Court to frame rule is absolutely misconceived. Chapter III of Part II of the High Court Rules provides for general rules regarding application and affidavit. Rule 8 thereof which is relevant for the purpose reads as follows : “8. Every person referred to in a petition or 5 affidavit shall be described therein in such manner as will serve to identify him clearly, that is to say, by the statement of his correct name and address and such further description as may be necessary for his identification.” From a plain reading of the aforesaid rules, it is evident that the deponent of an affidavit has to a person who can be identified clearly and the said rule further provides for further description as may be necessary for his identification. It is relevant here to state that while considering the issue in the case of Sikandar Paswan, it came to the notice of the court that the deponent of the affidavit in many cases is not being identified. Therefore the direction given by the learned Single Judge flows from Rule 8 from the Rules. In our opinion, if the direction given by the court flows from the existing rules, nothing prevents the learned Judge to give general direction in regard thereto for observation. Such a direction cannot be construed as usurption of the power of the court to make rules. In the face of language of Rule 8 of the Rules, we are of the opinion that the learned Single Judge did not err in directing that the deponent of the affidavit should be a relative. The learned Single Judge while overruling the objection of the Stamp Reporter by order dated 28.2008 has not adverted to this aspect of the matter and in fact his attention was not brought to earlier decision of this Court in the case of Sikandar Paswan (Supra). In view of aforesaid, the view taken by the learned 6 Single Judge in order dated 28.8.2008 does not commend us and it is accordingly overruled. The learned Single Judge, however, is right in observing that same defect did occur in Cr.Misc.No.33822 of 2008, but it was not pointed out by the Stamp Reporter and therefore appropriate action in accordance with law deserves to be taken against the Stamp Reporter, who had made report in Cr.Misc.No.33822 of 2008. Application stands disposed off accordingly. (Chandramauli Kr.Prasad, J.) ( Dr. Ravi Ranjan, J.) Narendra/