SUPREME COURT OF INDIA
Kalyan Chandra Sarkar
Vs
Rajesh Ranjan @ Pappu Yadav
Appeal (Crl.) 1129 of 2004, Criminal Misc.Petition No.10422 of 2004, Criminal Appeal No.1129 of 2004, Criminal Appeal No. 120 of 2005, (Arising Out of Slp (Crl) No. 4954 of 2004)
(N.Santosh Hedge and S.B.Sinha)
18/01/2005
SANTOSH HEGDE,J.
Heard learned counsel for the parties.
Leave granted in SLP (Crl) No. 4954 of 2004.
These are two criminal appeals challenging an order dated 21-9-2004 made by the
High Court of Judicature at Patna in Criminal Miscellaneous No. 9220 of 2004
which was an application filed by respondent no. 1 (hereinafter referred to as
the respondent) seeking the grant of bail in Sessions Trial No. 976 of 1999
pending before the CBI court. In the said case the said respondent is charged
for offences punishable under Sections 302 read with 34, 307 read with 34,
120-B, 302/307 IPC and Section 27 of the Arms Act.
This application before the High Court for grant of bail was the 9th
application in the series of applications filed by the said respondent for
grant of bail. His earlier applications were either rejected by the High Court
or when granted by the High Court were set aside by this Court. As a matter of
fact, this court in two earlier appeals had set aside the orders of the High
Court dated 6-9-2000 and 23-5-2003 granting bail to the said respondent.
The said orders of this Court are since reported in the case of Union of India
& Anr. vs. Rajesh Ranjan Alias Pappu Yadav 2004 (7) SCC 539 (I) and in
Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav & Anr. 1 (II). It is also relevant to note that when his earlier
applications were rejected by the High Court the appeals filed by the
respondent were dismissed by this Court confirming the refusal of the bail.
On 19-8-2000 charges were framed against the respondent and others under
Sections 302 read with 34, 307 read with 34, 120-B, 302/307 IPC and Section 27
of the Arms Act which is not challenged.
After rejection of four bail applications earlier, the respondent filed a 5th
application Crl. Miscellaneous 24068 of 2002 which came to be allowed by the
High Court on the sole ground that since the respondent accused was under
detention for more than one year, he should be released on bail without going
into any other aspect of the case. On 6th of September, 2000 an appeal filed
against the said grant of bail came to be allowed by this Court on 25th of
July, 2001 on the ground that High Court while granting the bail did not keep
in mind the requirement of Section 437(1) (i) of Cr. P.C., however, by the said
order this Court held if any fresh application is made by the accused same
shall be decided in accordance with law. This case is since reported in the
case of Union of India & Anr. vs. Rajesh Ranjan Alias Pappu Yadav (supra
I).
Taking advantage of the said observations of this Court the respondent-accused
herein made another application for grant of bail on 5-11-2001 which was the
sixth application for bail, said application came to be dismissed by the High
Court. On 5-11-2001 a SLP filed against the said order of dismissal came to be
dismissed by this Court on 7-12-2001.
The 7th bail application next filed by the accused-respondent also came to be
dismissed by the High Court. A SLP filed against the said dismissal was also
dismissed by this Court as per its order in SLP (Crl) No. 1645/2002 on
20-5-2002.
On 23-9-2002 the accused-respondent moved the 8th bail application which came
to be allowed by the High Court by its order dated 23-5-2003 solely on the
ground that the accused-respondent had undergone incarceration for a period of
3 years and that there was no likelihood of the trial being concluded in the
near future and appeal filed against the said grant of bail came to be allowed
on the ground that the High Court could not have allowed the bail application
on the sole ground of delay in the conclusion of the trial without taking into
consideration the allegation made by the prosecution in regard to the existence
of the prima facie case, gravity of offence, and the allegation of tempering
with the witness by threat and inducement when on bail.
This Court held since the above factors go to the root of the right of the accused
to seek bail, non consideration of the same and grant of bail solely on the
ground of long incarceration vitiated the order of the High Court granting
bail. This Court also observed that though an accused had a right to make
successive applications for grant of bail the court entertaining such
subsequent bail applications has duty to consider the reasons and grounds on
which the earlier bail applications were rejected and in such cases the court
also has a duty to record what are the fresh grounds which persuaded it to take
a view different from the one taken in the earlier applications.
This Court in that order also found fault with the High Court for not recording
any fresh grounds while granting bail and for not taking into consideration the
basis on which earlier bail applications were rejected. The court also
emphasised in the said order that ignoring the earlier orders of this Court is
violative of the principle of binding nature of the judgments of the superior
court rendered in a lis between the same parties, and noted that such approach
of the High Court in effect amounts to ignoring or over-ruling and thus
rendering ineffective the principles enunciated in the earlier orders
especially of the superior courts. On that basis, the appeal of the complainant
challenging the grant of bail came to be allowed cancelling the bail granted to
the respondent.
This order of this Court is since reported in the case of Kalyan Chandra Sarkar
vs. Rajesh Ranjan Alias Pappu Yadav & Anr. ( supra II). Barely 11 days
after the said order of this Court in Kalyan Chandra Sarkar vs. Rajesh Ranjan
Alia Pappu Yadav & Anr. (II) (supra) i.e. on 23rd March, 2004 a fresh 9th
bail application was filed by the respondent without there being any change in
the factual situation which came to be allowed by the High Court by its order
dated 21st September, 2004 which is the subject matter of the above noted two
Criminal Appeals.
When first of these appeals namely Crl. Appeal No. 1129 of 2004 came up for
preliminary hearing on 24th of September, 2004, this Court issued notice in the
SLP as well as in the application for suspending the bail granted by the High
Court. After service of notice the respondent put in appearance in that appeal
and this Court on 1st of October, 2004, after hearing the parties granted leave
and stayed the impugned order granting bail by the High Court with a direction
that the respondent should surrender and he should be taken into custody
forthwith, consequently the respondent is in custody now.
During the pendency of the above criminal appeal filed by the complainant, the
Investigating Agency namely the (CBI) has also filed another special leave
petition challenging the order of the High Court granting bail to the
respondent in which we have granted leave today.Brief facts necessary for the
disposal of these Crl. Appeals are as follows:-
Deceased Ajit Sarkar was then a MLA from Purnia constituency in State of Bihar.
It is the prosecution case that there was enmity between the respondent and the
said Ajit Sarkar because of their political differences. It is alleged on 14th
of January, 1998 said Ajit Sarkar was returning in his official car with three
others after attending a Panchayat, when some of the accused (not including the
respondent) followed the car of said Ajit Sarkar on two motorbikes and attacked
Ajit Sarkar and his companions with sophisticated weapons consequent to which
said Ajit Sarkar and his companions Asfaq Alam, Hamender Sharma died and one
Ramesh Oraon was seriously injured. Though the complaint in this regard was
registered with the jurisdictional police at the instance of the brother of the
deceased who is one of the appellant herein, the said police did not conduct
proper investigation, hence, the case was transferred to the CBI which
registered a fresh case.
During the course of investigation CBI found that in view of the political
rivalry between the deceased and the respondent, the latter entered into a
criminal conspiracy with the other co-accused to eliminate said Ajit Sarkar and
pursuant to the said conspiracy, on 12-6-1998 the respondent herein held a
meeting with the co-accused Harish Chaudhary and others in Siliguri. It is also
alleged by the Investigating Agency that the respondent instructed some of the
co- accused to falsify certain records to create an alibi for himself and
Harish Chaudhary for their absence from the place and the time of proposed
attack and the respondent left for New Delhi from Bagdogra.
The prosecution also alleges that later on the respondent instructed the other
co-accused Rajan Tiwari from Delhi over the phone to eliminate Ajit Sarkar by
all means and he also assured the said Rajan Tiwari that he would provide the
required firearms through co-accused Harish Chaudhary. It is pursuant to the said
assurance, the prosecution alleges that on the date of the incident i.e. on
14-6-1998 at about 4.30 p.m. said Rajan Tiwari armed with an AK-47 rifle,
Harish Choudhary with a .455 revolver and another accused armed with .38
revolver waylaid the car in which Ajit Sarkar was traveling at a place near
Ankur Hotel in Subhash Nagar and attacked them, because of which three person
including Ajit Sarkar died and his bodyguard Ramesh Oraon suffered serious
injuries. Based on the investigation so conducted some of the accused-persons
including the respondent were arrested and a charge-sheet was filed before the
Additional Sessions Judge, XI at Patna in Sessions Trial No. 976 of 1999.
The respondent so arrested, as stated above, has since been making numerous
bail application last of which as stated above has been allowed, which is the
subject matter of these appeals.
In these appeals Shri Amrender Saran, learned Additional Solicitor General
appearing for the CBI and Shri Vijay Hansaria, senior advocate appearing for
the complainant, Kalyan Chandra Sarkar have argued that entertainment of the
9th bail application by the High Court on the very same grounds as those urged
in the earlier petitions without there being any new facts or grounds amounts
to an abuse of the process of the court and is in derogation of the earlier
orders passed by this Court. It is contended on behalf of the appellants that
in the earlier proceedings all points available to the accused have been urged
and have been negatived by the High Court while rejecting the application for
grant of bail and confirmed by this Court and whenever erroneously the bail was
granted this Court had interfered by setting aside the grant of such bail.
Therefore, in the absence of any new or fresh ground, it was not open to the
High Court to have reconsidered the same material and overruled the earlier
findings of the court in the guise of considering afresh the existence of a
prima facie case. It is also submitted that the existence of a prima facie case
was one of the questions considered in many of the earlier orders of the High
Court as well as of this Court, and the same having been found against the
respondent, the High Court by the impugned order could not have reviewed those
findings without there being any fresh material.
It is also pointed out that the present application for grant of bail was filed
within 11 days of the last order of this Court in the second case referred to
hereinabove setting aside the grant of bail and during these 11 days nothing
new had transpired to give rise to a fresh ground nor any fresh ground as such
has been pleaded. In the second of the judgment of this Court referred
hereinabove this Court had given findings as to the existence of a prima facie
case which finding could not have been interfered with by the High Court in the
impugned order.
It was further argued that the question of admissibility of the retracted
confession and its evidentiary value have also been taken note of by this Court
in the second of the cases referred to hereinabove apart from the earlier
orders of the High Court and having taken note of the same the High Court as
well as this Court had felt there was sufficient material to come to the
conclusion that there was a prima facie case against the respondent.
The learned counsel appearing for the appellants have taken serious exception
to the manner in which the High Court has chosen to ignore the findings of this
Court while canceling the bail in the earlier case. The said learned counsel
also pointed out the various activities of the accused during his incarceration
as well as during the short periods when he was out on bail which showed that
he was interfering with the course of investigation and was threatening
witnesses and that this accused had no respect for law. On that basis, it was
argued that he is not entitled for the grant of bail.
Shri R.K. Jain, learned senior counsel appearing for the respondent-accused
countered the above arguments addressed on behalf of the appellants by
contending that right to liberty was a fundamental right of a person under
Article 21 of the Constitution of India and that right could be curtailed only
by a procedure known to law and if that procedure established by law is not
followed by the courts while refusing to grant bail, it is open to the
aggrieved person to challenge and re-challenge the same before an appropriate
forum.
He contended that since principle of res-judicata or estoppel does not apply to
criminal jurisprudence, there is no bar for an accused person to make
successive bail applications and re-urge the questions which might have been
urged earlier and negatived by the court. Therefore, it is open to a court
considering the grant of a fresh bail application to re- appreciate the
material on record and come to a different conclusion even though the same has
been rendered by a superior court. In other words the rule of finality does not
apply to bail petitions.
He further submitted that the courts below while considering the evidentiary
value of the retracted confession in the earlier bail applications did not
really appreciate the true legal position in law and as enunciated by this
Court in Hari Charan Kurmi & Jogia Hajam vs. State of Bihar AIR 1964, SC
1184, which had laid down that a retracted confession is a weak type of
evidence. The learned counsel argued that in the present case apart from the
retracted confession of one of the co- accused there is no supporting or
corroborative evidence available for the prosecution; hence it is crystal clear
that the prosecution has failed to establish a prima facie case.
The learned counsel also contended that the material available on record in
this case against the first respondent is not even sufficient for framing
charges (even though charge framed is not challenged). Commenting on the order
of this Court in the second of the cases (supra) he contended that this court
has not given a finding that there is a prima facie case against the
respondent-accused, nor has it dealt with the question of the evidentiary value
of the retracted confession. Hence, the High Court was justified in going into
these aspects of the case and coming to the conclusion that the prosecution
case does not establish a prima facie case against the respondent accused.
He also placed reliance on various judgments which were cited before the High
Court in support of his arguments. Then placing reliance on the judgment of
this Court in the case of Bhagirathsinh s/o Mahipat Singh Judeja vs. State of
Gujarat the learned counsel submitted that existence of prima facie case
is a sine-qua-non for refusal of bail and even if such a prima facie case is
existing still it is well open to the accused persons to seek bail on other
grounds but if there is no prima facie case made out from the prosecution material
then the question of looking into the other grounds for grant of bail does not
arise since lack of prima facie case by itself is sufficient to grant bail.
He pointed out from the impugned judgment that the evidence of the other
prosecution witnesses does not implicate the respondent-accused, therefore, the
High Court was justified in granting the bail and this Court entertaining an
appeal against the grant of bail should bear in mind that, ordinarily, this
Court does not interfere with the orders either granting or refusing to grant
bail under Article 136 of the Constitution. For this proposition also reliance
is placed in the above cited judgment of Bhagirathsinh (supra).
It is trite law that personal liberty cannot be taken away except in accordance
with the procedure established by law. Personal liberty is a constitutional
guarantee. However, Article 21 which guarantees the above right also
contemplates deprivation of personal liberty by procedure established by law.
Under the criminal laws of this country, a person accused of offences which are
non bailable is liable to be detained in custody during the pendency of trial
unless he is enlarged on bail in accordance with law. Such detention cannot be
questioned as being violative of Article 21 since the same is authorised by
law.
But even persons accused of non bailable offences are entitled for bail if the
court concerned comes to the conclusion that the prosecution has failed to
establish a prima facie case against him and/or if the court is satisfied for
reasons to be recorded that in spite of the existence of prima facie case there
is a need to release such persons on bail where fact situations require it to
do so. In that process a person whose application for enlargement on bail is
once rejected is not precluded from filing a subsequent application for grant
of bail if there is a change in the fact situation. In such cases if the
circumstances then prevailing requires that such persons to be released on
bail, in spite of his earlier applications being rejected, the courts can do
so.
The principles of res judicata and such analogous principles although are not
applicable in a criminal proceeding, but the courts are bound by the doctrine
of judicial discipline having regard to the hierarchical system prevailing in
our country. The findings of a higher court or a coordinate bench must receive
serious consideration at the hands of the court entertaining a bail application
at a later stage when the same had been rejected earlier. In such an event, the
courts must give due weight to the grounds which weighed with the former or
higher court in rejecting the bail application. Ordinarily, the issues which
had been convassed earlier would not be permitted to be re- agitated on the
same grounds, as the same it would lead to a speculation and uncertainty in the
administration of justice and may lead to forum hunting.
The decisions given by a superior forum, undoubtedly, is binding on the
subordinate fora on the same issue even in bail matters unless of course, there
is a material change in the fact situation calling for a different view being
taken. Therefore, even though there is room for filing a subsequent bail
application in cases where earlier applications have been rejected, the same
can be done if there is a change in the fact situation or in law which requires
the earlier view being interfered with or where the earlier finding has become
obsolete.
This is the limited area in which an accused who has been denied bail earlier,
can move a subsequent application. Therefore, we are not in agreement with the
argument of learned counsel for the accused that in view the guaranty conferred
on a person under Article 21 of the Constitution of India, it is open to the
aggrieved person to make successive bail applications even on a ground already
rejected by courts earlier including the Apex Court of the country.
Next question in this case is: whether in the earlier proceedings, Courts
including this Court, had given a finding in regard to the existence of prima
facie case against the respondent or not ?. If so, has the respondent brought
on record any fresh material either factual or legal so as to empower the High
Court to reconsider the earlier orders?
While the learned counsel for the appellants contend that the two grounds which
the High Court considered as relevant for enlarging the respondent on bail have
already been considered by the High Court as well as by this Court in the
previous proceedings, the learned counsel for the respondent contends that
neither this Court nor the High Court in the previous proceedings has given any
finding on the two issues which were considered by the High Court in the
impugned order.
Therefore, we will examine whether the two issues namely (A) the existence of
the prima facie case against the accused and (B) the evidentiary value of
retracted confession ; have been considered by the High Court as well as by
this Court in the previous proceedings or not.
As stated above, prior to the impugned order, 8 attempts made by the respondent-accused
to seek bail have proved futile. The learned counsel for the appellants have
contended that in almost all the proceedings when the bail was refused the
court had considered the existence of prima facie case and have given a finding
in this regard. But it is not necessary for us to go into all those orders, it
will be sufficient if we can find any such finding in any one of those cases
for the purpose of disposal of this question.
In the order of the High Court dated 5th November, 2001 in Crl. Misc. No. 22243
of 2001, it is seen that an argument was addressed on behalf of the respondent
that except the statement of Rajan Tiwari, a co-accused, there is no other
material against him and since the confession of co- accused cannot be used as
substantive evidence and there being no other material on record there is no
possibility of his conviction in the case. Therefore, he should be enlarged on
bail. It was also argued by the counsel for the respondent that confessional
statement made before the Metropolitan Magistrate, Delhi was later retracted
and while recording the confessional statement the concerned Magistrate did not
observe the required formalities envisaged in Section 164 of the Criminal
Procedure Code. It was also argued that the maker of the confession Rajan
Tiwari was brought from custody, hence the Magistrate erred in recording the
confessional statement without observing the necessary formalities.
Therefore, the so called confessional statement must be ignored for the purpose
of finding out the existence of a prima facie case. The said learned counsel
also argued that, at any rate, confession of co-accused not being a substantive
piece of evidence, it can only be used in aid of other evidence and there being
no such other evidence the confessional statement by itself cannot lead to
conviction. The learned counsel for the respondent-accused in those proceedings
had relied upon on number of judgments of this Court in support of his
contention as could be seen from the said order of the High Court. Having
noticed the said argument, the High Court recorded its findings as follows:-
"None of the abovesaid decisions, in my opinion, is of any help to the
petitioner for the simple reason that all of them were rendered after trial. In
the instant case the evidence is yet to see the light of the day. While the
principles laid down in those cases about the nature of the confessional
statement and the safeguards contained in section 164 Cr.P.C. are
unexceptionable, for the purpose of section 437 (1)(i) of the Code what the
court has to see is whether there are reasonable grounds to believe that the
accused has been guilty of an offence punishable with death and imprisonment
for life.
Where circumstances exist which provide grounds to believe the guilt of the
person the Court is not required to speculate as to quantum and nature of the
evidence which would be led by the prosecution at the stage of trial". *
Bearing in mind the above principle and some judgments of this Court the High
Court in that petition held:-
"The confession which Rajan Tiwari made is no doubt a statement of a
co-accused but it is an inclupatory statement and cannot be ignored for the
purpose of bail. In fact, as per his statement he is one of the assailants.
There is nothing on the record to suggest that he made the confessional
statement under Section 164 Cr.P.C. before the Metropolitan magistrate under
any threat or coercion. Whether the safeguards envisaged in section 164 Cr.
P.C. were observed or not is a matter of evidence which is still to come."
*
From the above it is also noticed that apart from discussing prima facie case,
the court also noted that the confession was retracted. The court also noticed
the material available on record indicating the motive for the crime and the
proximity of the first respondent-accused with one of the accused Rajan Tiwari
who made the confessional statement. After considering all the above material
the court recorded a finding as follows:-
"I have little doubt in my mind that the materials on record in the
case diary do constitute prima facie case. In fact, after the framing of
charges, which has not been challenged by the petitioner, there can be little
doubt about prima facie case against and, therefore, considering the matter
from the angle of section 437(1)(i) of the Criminal Procedure Code the
petitioner does not deserve bail". $ * (Emphasis supplied)
From the above facts recorded in the said judgment of the High Court, it is
clear that that court took into consideration the evidentiary value of the
retracted confession and the existence of prima facie case. Therefore, in our
opinion, the learned counsel for the first respondent was factually in error in
contending that the High Court in any of the previous proceedings did not go
into the question of the existence of prima facie case or the legality and the
evidentiary value of the retracted confession of Rajan Tiwari.
Apart from the observations made by the High Court in the above said petition
even this Court in its judgment reported in Kalyan Chandra Sarkar vs. Rajesh
Ranjan Alias Pappu Yadav and Anr (II) had observed in regard to the existence
of prima facie case as follows:-
The next argument of the learned counsel for the respondent is that prima facie
the prosecution has failed to produce any material to implicate the respondent
in the crime of conspiracy.
In this regard he submitted that most of the witnesses have already turned hostile. The only other evidence available to the prosecution to connect the respondent with the crime is an alleged confession of the co-accused which according to the learned counsel was inadmissible in evidence. Therefore, he contends that the High Court was justified in granting bail since the prosecution has failed to establish even a prima facie case against the respondent. From the High Court order we do not find this as a ground for granting bail. Be that as it may, we think that this argument is too premature for us to accept.
The admissibility or otherwise of the confessional statement and the effect of
the evidence already adduced by the prosecution and the merit of the evidence
that may be adduced hereinafter including that of the witnesses sought to be
recalled are all matters to be considered at the stage of the trial.
From the above, it is clear that this Court negatived the argument of the
respondent about the existence of a prima facie case. There is thus no merit in
the argument that the existence or non-existence of a prima facie case was not
taken into consideration by this Court.
Probably this argument is built on the following observations of this Court
extracted herein below : "From the High Court order, we do not find this
as a ground for granting bail."
Taking advantage of the above sentence in that order of ours, the learned
counsel contended that this Court had also accepted the fact that the High
Court in its previous orders had not considered the question of the existence
of a prima facie case. With respect to the learned counsel we think that this
sentence of ours is being relied upon out of context. In the 8th bail
application made by the respondent, the High Court, of course, did not go into
the question of prima facie case but allowed the application of the respondent
solely on the ground of long incarceration. It is in that context when an
argument was addressed before us that there existed no prima facie case as
could be seen from the impugned order therein, that we observed that the non
existence of prima facie case was not the ground on which the bail was granted.
This comment of ours does not refer to or apply to the earlier bail
applications in which a finding was given by the High Court as to the existence
of a prima facie case to which we have already referred to herein above and
have also extracted a portion of one such order which clearly shows that the
existence of prima facie case has been dealt with by the High Court at least in
one of the earlier orders and there being no change in the fact situation that
prima facie case could not have disappeared when subsequent applications came
up for hearing.
In the above factual background, we will now consider whether the High Court by
the impugned order was justified in reconsidering the findings already recorded
by this Court and the High Court in the earlier orders.
It is already noticed that the impugned order is pursuant to an application for
grant of bail made by the respondent within 11 days of the order made by this
Court in second of the appeals referred to herein above. It is also an admitted
fact that during these 11 days no fresh material had come into existence nor
has been pleaded by the respondent in the present application for bail before
the High Court. A perusal of the impugned order clearly shows that the High
Court proceeded to reconsider the very same two questions namely the existence
of a prima facie case and the evidentiary value of retracted confession and by
substituting its subjective satisfaction practically over ruled the findings of
this Court as well as that of the High Court recorded in the earlier orders,
without even discussing these findings and as if the case was being argued and
considered by the Court for the first time even though the previous orders of
this Court as well as that of the High Court were on record. This
reconsideration and recording of a new finding was without there being any
fresh factual or legal basis.
In our opinion, as contended by the learned counsel for the appellants the
approach of the High Court in the impugned order to say the least was
irresponsible, contrary to records and law.
Thus in our opinion the question of prima facie case and admissibility as
well as the evidentiary value of retracted confession having already been
considered by the High Court and this Court in the previous proceedings same
could not have been made as the basis by the High Court in the impugned order
to grant bail without there being fresh material. We are also of the opinion
that the learned counsel for the respondent was in error when he contended that
these two questions have not been decided by the High Court or by this Court in
the earlier orders. #
The learned counsel for the respondent-accused then strongly relied on a recent
judgment of this Court in the case of Jayendra Saraswathi Swamigal vs. State of
Tamil Nadu, Crl. A. No. 44 of 2005 dated 10th January, 2005 wherein this Court
considering an application for grant of bail by the appellant therein came to
the prima facie conclusion on the facts of that case as follows:-
"No worthwhile prima facie evidence apart from the alleged confession
have been brought to our notice to show that the petitioner along with A-2 and
A-4 was party to a conspiracy." *
The learned counsel for the respondent accused also pointed out from the said
order, that in that case the court considered the judgment reported in Kalyan
Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav and Anr (II). (supra) and
contended that the said judgment did not accept the correctness of the decision
in Kalyan Chandra vs. Rajesh Ranjan Alias Pappu Yadav.
The learned counsel for the respondent further contended that this Court in
Jayendra Saraswathi's case (supra) having not agreed with the law laid down in
Kalyan Chandra Sarkar (II) ought to have overruled the said judgment in Kalyan
Chandra Sarkar (II). We consider this as an argument of desperation. In Kalyan
Chandra Sarkar II there has been no declaration of any law made as such. This
Court only applied the requirement of Section 437(1)(i) of Cr.P.C. to the facts
of the case and came to the conclusion that there was prima facie case against
the respondent, hence, cancelled his bail. Nor has this Court in the case of
Jayendra Saraswathi (supra) made any declaration of law. In that case also
based on the facts of that case, this Court came to the conclusion that the
prosecution had not established a prima facie case as against the accused in
that case. It is while considering the judgment of this Court in Kalyan Chandra
Sarkar (II) this Court in the case of Jayendra Saraswathi observed:
"The observations made therein cannot have general application so as to
apply in every case including the present one wherein the court is hearing the
matter for the first time." *
It is probably based on the above observations of this Court in the case of
Jayendra Saraswathi (supra) that the learned counsel was emboldened to submit
that the court in Jayendra Saraswathi's case having stated so ought to have
overruled the judgment in Kalyan Chandra Sarkar II (supra). Whether the
judgment in Kalyan Chandra Sarkar II ought to have been overruled or not by the
Bench which delivered Jayendra Saraswathi's judgment, we are not competent to
say, but certainly we are competent to say what actually the court stated in
the said judgment of Jayendra Saraswathi and what the court has done in that
case. In the said case of Jayendra Saraswathi, the court only distinguished
Kalyan Chandra Sarkar II (supra).
While doing so they observed:
"The case of Kalyan Chandra Sardar (supra) was decided on its own
peculiar facts where the accused had made 7 applications for bail before the
High Court, all of which were rejected except the 5th one which order was also
set aside in appeal before this Court. The 8th bail application of the accused
was granted by the High Court which order was subject matter of challenge before
this Court. The observations made therein cannot have general application so as
to apply in every case including the present one wherein the court is hearing
the matter for the first time." *
In our humble opinion, in the case of Jayendra Saraswathi (supra), this Court
only distinguished the facts of that case from the facts of the present case in
hand and the question of overruling a judgment on facts does not arise unless,
of course, the court is sitting in appeal over the judgment sought to be distinguished.
This Court in Kalyan Chandra Sarkar II (supra) decided the said case on the
facts of that case only, so the question of the said case being overruled in
another case does not arise. It is clear from the perusal of Jayendra
Saraswathi's case as well as Kalyan Chandra Sarkar II (Supra) that both the
cases have been decided by this Court on their individual facts only.
While deciding the cases on facts, more so in criminal cases the court should
bear in mind that each case must rest on its own facts and the similarity of
facts in one case cannot be used to bear in mind the conclusion of fact in
another case (See: Pandurang and Anr. vs. State of Hyderabad ). It is
also a well established principle that while considering the ratio laid down in
one case, the court will have to bear in mind that every judgement must be read
as applicable to the particular facts proved or assumed to be true. Since the
generality of expressions which may be found therein are not intended to be
expositions of the whole of the law, but are governed and qualified by the
particular facts of the case in which such expressions are to be found. A case
is only an authority for what it actually decides, and not what logically
follows from it. See:-
(1) Quinn vs. Leathem 1901 AC 495
(2 ) State of Orissa vs. Sudhansu Sekhar Misra )
(3) Ambica Quarry Works Vs. State of Gujarat)
Bearing the above jurisprudential principle in mind if we examine the case of Jayendra
Saraswathi (supra) it is clear that it was a case which was decided on the
facts of that case and that the court did not overrule the judgment of this
court in the case of Kalyan Chandra Sarkar vs. Rajesh Ranjan Alias Pappu Yadav
and Anr. (II) (supra) even by implication but it only distinguished the case on
facts. Therefore, in our opinion, that judgment is of no assistance to the
respondent accused in this case.
The learned counsel for the appellant had pointed out that there are nearly 44
more witness to be examined by the prosecution and the past conduct of the
accused as found by courts below very clearly shows that if he is released on
bail he would certainly threaten the witnesses and tamper with the evidence
which according to the learned counsel is clear from the fact that a number of
witnesses have already turned hostile, many of them during the period when the
accused was let on bail. Therefore, releasing the respondent-accused would not
be in the larger interests of justice. We agree with this argument.
It is also pointed out that in addition to the retracted confession of the
accused Rajan Tiwari the evidence already brought on record clearly shows that
there has been a test identification parade of the assailants and also other
materials have been brought on record to show that one of the assailants of
Ajit Sarkar was closely known to the respondent and there have been telephonic
conversation to and from the telephone registered in the name of the respondent
which according to the learned counsel would go a long way in establishing the
prosecution case.
It is not necessary for us to weigh the evidence at this stage since we have
already come to the conclusion that the prosecution on the basis of the
material available on record has established a prima facie case against the
accused and we are also of the opinion that the conduct of the
respondent-accused as brought on record clearly indicates that enlarging the
said accused on bail would impede the progress of the trial.
For the reasons recorded hereinabove we are of the considered opinion that the
High Court was totally in error in allowing the bail application of the
respondent by the impugned order. We allow this appeal, quash the impugned
order of the High Court and dismiss the bail application made by the respondent
in Criminal Miscellaneous File No. 9220 of 2004 on the file of the High Court
of Judicature at Patna.