LexKRISHAN GOPAL versus SHRI PRAKASH CHANDRA & ORS.
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206
KRISHAN GOPAL
v . .
SHRI PRAKASH CHANDRA & ORS.
November 8, -1973
IA. N. RAY, C.J., H. R. KHANNA, K. K. MATHEW, A. ALAGfRISW.~~
·
AND P. N. BHAGWATI, JJ.]
Conslltmion of India-Art. 224A-Wflcrher a11 Od hoc judge a 111J~e of 11~
High Court.
Article 224A of the Constitution provide<.> t_ha;. notwithsta!'ding ~ytbmg
contained in Chapter V of Part VI of !!'• Con;;tttuuoo. th~ Ch,ef Josue.: of a
High Court for any State may at any umc. Wltl> the prev~ous consent of the
President, request any person who has held th_e office of a J'!dge of !bat Court
or any other Hii:h Court to sit and act as a JUdge of the H1gb. Court for !hal
·Sate. It 1s further provided that every such pe"'on so ""ques~d sh>l~ while
,0 sitting and actir.tz, be entitled to. su.cl>. allowances as the P_re_:;ident mly by
-order determine and have all the Junsd•cllon, powers and pnvtloges of "bur
shall ool otherwise be deemed to be- a judse of that High Court".
'
The appellant's election petition in the Madhya Pradesh High Court was
posted, in the first instance, before a permanent Judse of that High OJurt.
In the meantime a retired Judge of tha~ High Court was appointed as a Ju~ge
-of that Court in accordance wnh the provisions of Art. 224A of the Constltu-
tioo and the election Jl"tition of !he appellant, along with a few other e'te·
tion petitions, was transferred to bim for di<posaL
The writ Jl"lition of the
appellant questioning the juri..Jictioo of !he Judge to try an election petition
·was dismissed by the High Court.
Before the Supreme Court it w:.s contended (i) th:.t a person reque•ted to
·•it and •<:t as a Judge or the H1ib Court under Art 224A was not a Judg:o
of the Hrsh Court for the purpose of a. 8() .\ of the Represenmtion of tho
Peep~ Act ar.d (ii) that even ~ming that he was a Judge for the purpose of
s. 80A of the Ac~ the election petition could not, after it had been entrwted
1o a p,rmaneo! Judge, be allocated to a Judge appointed under Art. 224."'-
Di•posinJt of the appeal
B
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D
E
• HEI,D : It is in::onc.:ivab!e that the (rumen of the Constitution inserted 1.11
>~rt1de •n. the Constitution which w"" in the onturo of ,.. ueaJ letter. t\ny
c:on,trucuon ?f Art, 224A which would have the effect of rendering tb•1
F
arutle to be rr.efTect.ve and purpo<ele,. mmt be rei<'cted.
A person requo:sted
10 "'' and act •• a Jud!IC of the High Court under Art. l24A h a Judge of
that Court for the purpo<c o{ •ub-1. (2) of •· 80A of tho AcJ.
[!lolG·Hl
prevY::;rc~~ t224/' 'lithe Ch_ief Justice of 11 High Court, after obtaining ~ho
-of 0 Hioh co:
0
e Pr.:."dent, requests n p:non who has held the o ee
State. The
rt Judge to Sit and act as a Judge of the Hi~h Court tor thai
juri.diction :::~ ':;:;t"'ted,_1 wh1lc <0 sitting ~nd a:tir>!l, shall bave all hth:
G
penon •hoiJ not oth w·
pbcnv• cges of n Jud~-e of the High Con~ Sue._ Fl
cr '"'
~cemeu l<> bo u Judge of that Court.
[~ L1D "
TI1e wocds •while 10
• •
d
not merely hao the juriw' ~~tune and acting" •how that tl>e . ,.._,rmn requ~~h
Court. he nho Iii>! •nd .'~ wn. powers nr<l privile~eo of a Judk'C of !h<
~ 11
not otherwi~e be <kemtd ~ ns a Jud~e of that Court. The word• ~but \:co
nat relating to jurisdiction ° be 0 Judge of th~l Court .. lndkate th:.t '" '"'\,J
•~:!ll not be d<emcd to be • powers ond
prh·itcge• the
pen<on so . 1"\',quc'"IJ
poont ro tl~e cordu>ion th:. ~odge
1 of that Court. The woru ••otherw"c J "~,·i· H
lcJII', the per>on reque$1td ;h ~[ ~ lC purpo'C of furi,dlction, pov.'C" rn r
a"J
for PU'J'O•es other than tho a
.~ ~ l_udse of tho concern<d Hish C.ror ,.;,n
rrqllt!lcd •ball not be d
se of Jllmdittlun; powc..., nnd privilot;<'S, tho pc ·tit•
eemed to be a Judge of th:~t Court. Tho use of
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,,
A
B
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0
F
KRISHAN. GOPAL V. PRAKASH CHANDRA (Khanna, J.)
20 7
W?rd "deemed" sho~s tha: the person who sits and acts a'9 a Judge of the
Huth ~o~ut urt.l~r th1s Artie!'! is a Ju:lge of the said High Court bu~ by a
legal fict1on he IS not to be considered to be a Jud·8e of the High Court for
purposes other tha:~ those relating to ju:isdiction, powe"S and privileges. The
words "but shall DOl otherwise be deemed to be a Judge of t:hat High Court"
~Y .ne~~sary implication CJ?~hasise and highlight the fact that for purposes ·of
JUrJSd!chon, powers and priVIleges the person requested under Art. 224A is a
Judge of the High Court concerned. The effect of the
non-obstante
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