The Bench then referred ‘the matter’ to the Chief Justice for his consideration. While it is not clear whether ‘the matter’ implies reconsideration of Shantha in toto, or just the issue of professionals falling within the ambit of the CP Act, issues of procedural propriety mainly kick in when the bench:
(1) proceeds with the next issue on an in arguendo premise of ‘even if it is assumed that CP Act applies to professions and the professionals the next issue that falls for our consideration is’; and
(2) towards the end, concludes that the legislature never intended to bring professionals within the scope of the Act (admittedly contrary to Shantha).
This raises the following inter-linked questions: Can a single issue in a case be referred to a larger bench? Can the bench pass a final judgment in a case where one of the issues have been referred to a larger bench? Can the bench adopt an in arguendo approach in writing judgments?
Referring the issue to a larger bench while simultaneously concluding that professionals do not fall within the scope of the CP Act is against the established position of law. The Supreme Court in Sub-Committee of Judicial Accountability v. Union of India and Ors held that even a co-ordinate bench cannot ‘comment upon’ or ‘sit in judgment over’ the judgment rendered in a cause or matter before another co-ordinate bench.
Source: Barandbench
