(14-A) Defence raised the question to give benefit of latest judgments of Hon’ble High Court. Defence relied on following decisions for his contention.
- Cri. M. Application No.14420/09 in Cri. Appeal No.2558/09 decided on 19/3/10 para 5 – on the point of latest view.
- 2002 (2) GLR 1244 Gujarat High Court para 34 and 35.
Therefore, first, we have to decide the applicability of the decisions of higher courts to this case. It was the contention of defence that accused is entitled to get benefit of latest decision of Higher Court. It was the contention of prosecution that decisions should be applied as per legal dectam i.e. law of precedent.
(14-B) As per jurisprudence the applicability of precedent is dependent on four main rules: ratio decidendi, obiter dictum, binding precedent, and persuasive precedent.
(14-B-1) Ratio decidendi – This legal maxim translates to “the reasoning behind the decision”. The judge’s ratio decidendi is what forms precedent, rather than sanction or remedy handed down.
(14-B-2) Obiter dictum – This legal maxim refers to additional statements made by the court that do not form part of the “ratio decidendi”. These statements, on legal issues, may be persuasive on the future decisions of courts.
(14-B-3) Binding precedent – Lower courts are bound to follow precedent set by higher courts in the same hierarchy for like cases. The principle of “stare decisis” (to stand by what has been decided). Therefore, for precedent to be binding, it must satisfy three criteria. 1. It must come from a higher court, 2. It must come from the same court hierarchy, 3. The facts of the precedent setting case must be significantly similar to the case at hand
(14-B-4) Persuasive precedent – Persuasive precedent means that courts do not have to follow a particular court-made decision, but may be influenced by it. For a precedent to be persuasive, it may satisfy any of four criteria: 1. A decision from a lower court, 2. A decision from a court on the same level, 3. An “obiter dictum” statement, 4. A court outside the court hierarchy e.g. an interstate or overseas court
(14-C) In case of Mahadeolal Kanodia v. Administrator General of W.B. 1960 AIR 936, 1960 SCR (3) 578 Supreme Court observed: “19. … If one thing is more necessary in law than any other thing, it is the quality of certainty. That quality would totally disappear if Judges of coordinate jurisdiction in a High Court start overruling one another’s decisions. If one Division Bench of a High Court is unable to distinguish a previous decision of another Division Bench, and holding the view that the earlier decision is wrong, itself gives effect to that view the result would be utter confusion. The position would be equally bad where a Judge sitting singly in the High Court is of opinion that the previous decision of another Single Judge on a question of law is wrong and gives effect to that view instead of referring the matter to a larger Bench.
(14-D) In Somawami v. State of Punjab 1963 AIR 151, 1963 SCR (3) 774, it is held that the binding effect of a decision does not depend upon whether a particular argument was considered therein or not, provided that the point with reference to which an argument was subsequently advanced was actually decided. This principle is reiterated in T.G.Mudaliar v. State of Tamil Nadu ; Anil Kumar Neotia v. Union of India 1973 AIR 974, 1973 SCR (3) 222 and Kesho Ram and Company v. Union of India 1989 SCR (2)1005, 1989 SCC (3) 151.
(14-E) In Kamalammal v. Venkatalakshmi AIR 1965 SC 1349, the Supreme Court deprecated the course taken by a single Judge of a High Court in refusing to follow the judgment of a Full Bench and ruled that not merely convention but rules framed by several High Courts require that where a learned single Judge or a Division Bench does not agree with a Full Bench decision, he or they either make a reference to the Full Bench or place the papers before the Chief Justice for such a reference being made. A similar ruling was rendered in Lala Shri Bhagwan and Anr. v. Ram Chand and Anr 1965 AIR 1767, 1965 SCR (3) 218.
(14-F) In Punam Chand v. Subhakaran AIR 1969 Cal 547, a Division Bench held that a Full Bench decision is always binding on a Division Bench unless and until the same is overruled by the Supreme Court.
(14-G) In Ballabhdas Mathuradas Lakani and Ors. v. Municipal Committee, Malkapur AIR 1970 SC 1002, (1970) 2 SCC 267, it is held that the decision of the Supreme Court was binding on the High Court and the latter could not ignore it because they thought that relevant provisions were not brought to the notice of the Supreme Court.
(14-H) On perusal of the decisions, now the position in law is cleared regarding the applicability of decisions. The accused can not demand the applicability of any decision which was given in breach of above established legal principle.