2005 (1) TMI 704 - SUPREME COURT

Murder - Application seeking the grant of bail - Series of Bail applications - either rejected by the High Court or when granted by the High Court were set aside by this Court - Offences punishable under Sections 302 read with 34, 307 read with 34, 120-B, 302/307 IPC and Section 27 of the Arms Act - 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 - HELD THAT:- 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.

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. 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.

Bearing the above jurisprudential principle in mind if we examine the case of Jayendra Saraswathi [2005 (1) TMI 673 - GUJARAT HIGH COURT] 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) [2004 (3) TMI 763 - SUPREME COURT] 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.

Thus, 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 on the file of the High Court of Judicature at Patna.