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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.