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CASE NO.:

Appeal (crl.) 1129 of 2004

PETITIONER:

Kalyan Chandra Sarkar

RESPONDENT:

Rajesh Ranjan @ Pappu Yadav & Anr.

DATE OF JUDGMENT: 18/01/2005

BENCH:

N.Santosh Hegde,S.B.Sinha & P.K.Balasubramanyan

JUDGMENT:

J U D G M E N T

CRIMINAL MISC.PETITION NO.10422 OF 2004

IN

CRIMINAL APPEAL NO.1129 OF 2004

With

CRIMINAL APPEAL NO. 120 OF 2005

(Arising out of SLP (Crl) No. 4954 of 2004)

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. 2004 7 SCC 528 (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

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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 canceling 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,

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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

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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

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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

1984 1 SCC 284 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

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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 that proceedings had relied upon on number

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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

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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

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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

hereinabove. 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

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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 (1955 1 SCR 1083). 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

(AIR 1968 SC 647)

(3) Ambica Quarry Works Vs. State of Gujarat (AIR 1987 SC

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1073)

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.