'Shows Lack Of Confidence In Own Order": Supreme Court Deprecates Passing Of Orders With Caveat To Not Consider As Precedent

The Supreme Court on Tuesday deprecated the practice of passing orders suffixed with the caveat that the said order is not to be treated as a precedent on the ground of parity, especially in criminal matters. 

The bench of Justices D. Y. Chandrachud and M. R. Shah was hearing a string of SLPs seeking cancellation of bail granted by separate orders of coordinate benches of the Gujarat High Court to 6 co-accused in a case of murder of 5 persons. The accused-respondents have been granted regular bail after filing of the charge­ sheet in connection with the offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the I.P.C., offences punishable under Sections 25(1­b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act. 

Before the Apex Court, it was argued by the petitioner (the complainant) that the Single Judge, in passing the first bail order in the matter on October 22, 2020, had noted that though the applicant before him was named in the FIR, in the subsequent statement of the complainant, the overt act earlier attributed to the applicant had been missed out. Granting bail on this account, the Single Judge had clarified that "this order is passed considering the facts of the case of the applicant only and the same shall not be considered as precedent for any other person who is accused in the complaint on ground of parity". On Tuesday, the petitioner's counsel contended that despite this, the coordinate benches of the High Court had proceeded to deem some of the co-accused persons to be entitled to the benefit of parity on the basis of this order, only because these persons were also assigned a similar role of being armed with a stick as the aforesaid applicant who had been granted bail.

"I am not in favour of such orders (which state that they are not be considered as a precedent)", said Justice Shah.

"This is a wider issue (for consideration)...I have never passed such an order saying that it is not to be treated as a precedent, either here at the Supreme Court or in the High Court! It indicates a lack of confidence in one's own order! My decision is my decision...Saying that it is not to be considered as a precedent shows a lack of moral conviction in one's own viewpoint! If I feel that an order is vulnerable, I should not pass it at all! ", remarked Justice Chandrachud.

"Also, it is for the other judge to decide if it can be treated as a precedent or not! I cannot say that my order can't be considered as a precedent, that is for somebody else to say...Like we say now that the Supreme Court is final not because it is right, but it is right because it is final...", continued the judge.

"Sometimes, in civil cases, we may say that a particular order is being passed by the consent of the parties...but only in civil cases!", explained Justice Chandrachud.

"Yes. Or where an order is being passed in the extra-ordinary circumstances of a case - like under Article 142 - which is otherwise not normally contemplated within the four cornerstones of the law", added Justice Shah.

"I will give a concrete example- Where there is a case of clear conviction under 302, but the man is 90 years old, there may be an observation against still keeping him inside. But even there, you don't say that the order is not to be regarded as a precedent! You say, 'It is in these facts of the case that we are passing this order'", reflected Justice Chandrachud. 

In the instant case, on behalf of the petitioner, the attention of the bench was drawn to the first order of bail passed on October 22, 2020, wherein the Single Judge observed that though the name of the applicant was shown in the FIR, on perusal of the charge­sheet papers, it appeared that the complainant had missed the overt act, which was attributed to the applicant in the FIR, in the subsequent statement recorded after 25 days from the date of incident. "Though the complainant has stated that the applicant was present, but no role is attributed in the subsequent statement, which was recorded on 3rd June, 2020, wherein the details with regard to chronology of events which took place at the place of the incident on 9th May 2020 is in effect substituted by the complainant in the additional statement dated 3rd June 2020 by narrating altogether different details. At this juncture, this Court is not going into the details of the incident as it may affect the trial at the later point of time. Suffice is to say prima facie appears that the applicant has been involved in alleged offences due to pending proceedings of the previous offences and enmity with the complainant side", the Single Judge had noted in the order granting bail.

The Single Bench had proceeded to add that "this order is passed considering the facts of the case of the applicant only and the same shall not be considered as precedent for any other person who is accused in the complaint on ground of parity".

In some of the subsequent orders granting bail, the coordinate benches had appreciated that the applicants before them would be entitled to benefit of parity as the aforesaid co-accused, who was assigned similar role of being armed with a stick, has already been granted bail by the High Court.

Diary No.- 2309 - 2021

RAMESH BHAVAN RATHOD vs. THE STATE OF GUJARAT