TMI Blog2005 (1) TMI 704X X X X Extracts X X X X X X X X Extracts X X X X ..... nge 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 la ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. - HEGDE, N. SANTOSH, SINHA, S.B. AND BALASUBRAMANYAN P.K.I., JJ JUDGEMENT HEGDE, N. SANTOSH (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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rom 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etting 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 furthe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 Ja ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... very 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 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 b ..... X X X X Extracts X X X X X X X X Extracts X X X X
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