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2013 DIGILAW 13 (CHH)

VINOD KASHYAP v. STATE OF C. G.

2013-01-04

Prashant Kumar Mishra

body2013
ORDER 1. Apprehending arrest in connection with Crime No. 446/2010 registered at Police Station Civil Lines, Bilaspur, Distt. Bilaspur (C.G) for the offence punishable under Sections 302, 147, 148, 149, 294, 506, 323 & 427 of IPC, the applicant has filed this application under Section 438 of the Code of Criminal Procedure for grant of anticipatory bail. 2. The applicant along-with 6 other co-accused persons have allegedly committed murder of deceased Ramesh Yadav on 07.07.2010. 3. Learned counsel for the applicant would submit that co-accused Rakesh Kashyap, Pammi @ Prashant Kashyap, Kamlesh Kashyap, Mukesh Rajak @ Mukesh Kashyap have already been acquitted by the trial Court, therefore, the present application for anticipatory bail deserves to be allowed. He has placed reliance on a judgment of the M.P. High Court in Ujagar Singh Vs. State of M.P. 2000(1) MPWN Note No. 12 : MPLJ 2000(1) 58. 4. Learned State Counsel has opposed the prayer for grant of anticipatory bail. 5. In M.Cr.C. No. 3588 of 2012 (Joga @ Pilu V. State of Chhattisgarh) decided on 04.10.2012, this Court has already distinguished the above decision of Ujagar Singh 2000(1) MPWN Note No. 12 : MPLJ 2000(1) 58 (supra) holding thus: "(5) In the matter of Sitaram S/o Radheshyam Vs. Union of India reported in 1989 MPLJ 471 , Hon'ble Justice R.C. Lahoti, as he then was, has held thus in paragraph 5 & 6 of the report :- "5. An order on bail application, summary in nature, based on summary hearing, is never a precedent nor can be cited as an authority laying down law by the High Court unless and until a question or principle of law did arise for determination and was decided therein. It is unfortunate that such bail orders, confined in their operation to that case, and having life to expire with that case alone, are published as Short Notes creating a plethora of confusion before the Courts. In Nirmal Kumar vs. Brijlal, M.A. No. 367 of 1982 (J.) decided on 20-8-1986, published as 1986 II MPWN 248, the practice of going by Index-Notes without reading the judgment fully was condemned by Gulab Gupta J. 6. Very recently in Delhi Municipal Corporation vs. Gurnam Kaur, AIR 1989 SC 38 the Apex Court held: “Quotability as 'law' applies to the principle of a case, its ratio decidendi. Very recently in Delhi Municipal Corporation vs. Gurnam Kaur, AIR 1989 SC 38 the Apex Court held: “Quotability as 'law' applies to the principle of a case, its ratio decidendi. The only thing in a Judge's decision binding as an authority, upon a subsequent Judge is the principle upon which the case was decided............ The task of finding the principle is fraught with difficulty because without an investigation into the facts, it could not be assumed whether a similar direction must or ought to be made as a measure of social justice. Precedents sub silentio and without argument are of no moment.” In State of Orissa vs. Sudhansu Sekhar Misra and others, AIR 1968 SC 647 , the Apex Court considering earlier Privy Council and its own decisions, reiterated the law of procedenta in these words: "A decision in only an authority for what it actually decides. Which is of the essence in a decision is its ratio and not every observation found therein not what logically follows from the various observations made in it. It is not a profitable task to extract a sentence here and there from a judgment and to build upon it." (Emphasis supplied) This Court too summed up the law of precedents in Union of India vs. Shankahal, 1973 MPLJ 843 = 1972 JLJ 1039 having read the Supreme Court decisions on the point and said: "It is axiomatic that a decision is an authority for the question of law which it decided and not for a question which was not considered or raised. A case cannot be an authority on a point of fact; each case has to be examined in the light of the circumstances existing in it. A precedent, therefore, is a judicial decision which contains in itself a principle." (Emphasis supplied) It follows that a bail order, in its operative part, proceeds on the peculiar facts of that case, stated and sometimes not stated, in that order, and on a consideration of complexity of facts and circumstances of that case sometimes told and sometimes untold, in the order. The order cannot be an authority on a point of fact. The order cannot be an authority on a point of fact. The principles emerging from authorities and stated hereinabove apply with regenerated vigour to bail orders.” (from the report published in M.P. Weekly Notes) (6) In the matter of Ujagar Singh (supra) the learned Single Judge of M.P. High Court has held that when some of the accused persons were sent for trial and were acquitted some other accused persons arrested thereafter are entitled to be released on bail. (7) In my considered opinion the judgment of Ujagar Singh (supra) is based on its own facts and no principle of law after referring to any previous judgment of Supreme Court or any provision of law has been mentioned therein. The precedential value of an order on application for bail has been dealt with elaborately by R.C. Lahoti J. in the matter of Sitaram (supra). Since the subsequent judgment of M.P. High Court in the matter of Ujagar Singh (supra) has not laid down any principle or ratio decidendi this Court would follow the law laid down in the case of Sitaram (supra). (8) There is one more reason why Sitaram (supra) would hold the field and not Ujagar Singh (supra) is that if Ujagar (supra) can be read to have laid-down any such principle of law, then in every case, including heinous offence, an accused against whom the charges are weak may surrender and on his acquittal the other accused persons against whom abundance of evidence is available would be entitled to be released on bail forthwith after their arrest. Such cannot be the intention of the learned Judge while making observation in the matter of Ujagar Singh (supra) and it is precisely for this reason this Court is of the opinion that Ujagar Singh (supra) is based on its own facts and it cannot be read as if a principle of law of general application is laid down in the said judgment. Thus finding that there is inherent danger in reading a principle of law in Ujagar Singh (supra), this Court would respectfully follows the judgment in Sitaram (supra)." The applicant is named in the FIR as one of the members of the unlawful assembly and the assailant. Therefore, considering the gravity of offence, this Court is not inclined to extend the benefit of anticipatory bail to the applicant. It is accordingly dismissed. Application Dismissed.