DILIP B.BHOSALE,J. - (1.) A stimulating question/situation falls for our consideration in view of the order of the Division Bench dated 27.2.2017. It would be advantageous to reproduce the said order to understand the backdrop against which the reference to this Bench has been made. The order dated 27.2.2017 has been passed on a bail application bearing No.66948 of 2012 in Criminal Appeal No.2218 of 2009, which reads thus: "This matter has come up before us as a consequence of difference of opinion expressed by my esteemed brother Justice Virendra Kumar-II. The second bail application of the accused was taken up for hearing on 02.02.2017. After conclusion of the dictation of the order, the stenographer typed the order and thereafter, the file was presented before me for signing the order. I signed the order and thereafter, the record was sent to my esteemed brother for signing the order. At this juncture, my esteemed brother made a dissent note on the small slip appended to the order, after signing on the slip. Thereafter, he scored the signature and made an endorsement on the slip appended to the top of the bail order in the following form:- "I disagree with the view." This order was signed by me earlier. Thereafter along with this slip, I received an order giving a dissenting opinion in the matter. I granted the bail in the open Court. The dissent view was expressed at the time of signing of the order. As and when dissent view was brought to my notice, I passed the following order:- "After passing of the above order, the file was sent to brother Justice Virendra Kumar-II for signing the order and when the file was returned back from the chamber of brother Justice Virendra Kumar-II, I came to know that a dissent order has been passed by my esteemed brother though no dissent was indicated at the time when the order was dictated in the open Court. Accordingly, list this case on 23.02.2017. Sd/- S.S. Chauhan, J." The above order passed by me was sent to Brother Justice Virendra Kumar-II, but his Lordship made an endorsement at the bottom of the said order in the following form:- "I had expressed my views during the course of hearing. Sd/- Virendra Kumar-II, J." It is to be noted that after the dissent order was received by me, I had drawn the attention of my esteemed brother regarding the law settled in the case of Vinod Kumar Singh v. Banaras Hindu University & others reported in (1988) 1 SCC 80. Having done my duty as a senior member of the Bench, I tried to convince my esteemed brother but my esteemed brother was of the view that whatever view he has expressed is correct. I am not on merit of the case. The question involved in the present case is as to which stage, the dissent is to be expressed. Learned counsel for the appellant has placed reliance upon two full Bench decisions and one Hon'ble Supreme Court decision in the case of Vinod Kumar Singh v. Banaras Hindu University & others reported in (1988) 1 SCC 80 and other Full Bench decision of this Court in Misc. Bench No. 9470 of 2014 (Smt. Chawali (Habc) 594 of 2012 Now P.I.L.) v. State of U.P. and others and a Full Bench decision of Calcutta High Court rendered on 13.07.2016 in 2016(3) R.C.R.(Civil) 877 : 2016(3) R.C.R.(Criminal) 846 : C.R.M. No.3767 of 2016 with C.R.A.N. No. 2604 of 2016, C.R.M. No. 3770 of 2016 with C.R.A.N. No. 2605 of 2016 (Mallikarjuna Rao & others v. The State of West Bengal with A. Gopal Krisha Murthy @ A. Gopala Krishnamurthy and another v. The State of West Bengal and in all these decisions, it has been held that the dissent is to be indicated at the time when the dictation is over. I am not deliberating anything about the discussions as opined by my esteemed brother on the order sheet wherein he has indicated that he showed his dissent during course of hearing. At which stage dissent to be indicated, at the time of conclusion of dictation or during the course of discussion; this requires consideration by a larger Bench in view of difference of opinion between the Bench members. Let the record be placed before Hon'ble the Chief Justice for nomination of a larger Bench. Order Date :- 27.2.2017 Sd/- S.S. Chauhan, J. Learned counsel for appellant has placed reliance on the case law mentioned above. But as mentioned by me earlier I had disclosed and expressed my views during the course of arguments and also conveyed it to Hon'ble Senior member, even then bail order was dictated in open Court, therefore, for me occasion for dissent was when bail order was sent to me. The case laws would not apply if any order has not been passed Division Bench on the basis of consultation with another member. Nature of this case is the same. Order Date :- 27.2.2017 Sd/- Virendra Kumar-II. J."
(2.) The criminal appeal in which, the bail application was filed, arose from the judgment and order dated 31.8.2009 in S.T. No.531 of 1994, convicting the applicant under Sections 148, 302/149, 307/149 and Section 379 of the Indian Penal Code. The appeal was preferred by the applicant in 2009 itself and in 2012, the first bail application was filed and it was rejected by the Division Bench, vide order dated 24.4.2012. Thereafter, the second bail application was filed on 8.8.2012, bearing Criminal Misc. Application No.66948 of 2012. The application was heard in the open Court and the order granting bail, as stated by the learned senior Judge, was dictated immediately on conclusion of arguments. Thereafter, when the file/record was sent to the companion Judge on the Bench for his signature, he made an endorsement "I disagree with the view", that was expressed in open Court on 2.2.2017, and dictated his own opinion/order in Chamber on 2.2.2017, whereby he rejected the bail application. In this backdrop, the matter was once again placed before the Division Bench on 27.2.2017 when the order, as quoted above, was passed.
(3.) The question that has been formulated by learned senior member of the Division Bench for our consideration is "at which stage dissent to be indicated (by the companion Judge on the Bench), at the time of conclusion of dictation or during the course of discussion". In other words, "what should be the proper course of action, in a situation like this, for the companion Judge on the Bench when an order or a judgment is dictated in open Court, if he does not agree with the view expressed in the order/judgment".;