Kareena Eugene
On Tuesday, 13th April 2021, the Supreme Court deplored the practice of passing order suffixed with the Caveat. It stated that ‘the said order is not to be treated as a precedent on the ground of parity’, especially in matters relating to crime.
The Benches consisting of Justices D.Y. Chandrachud and M.R. Shah, were hearing a series of SLP’s (Special Leave Petition) seeking cancellation of bail granted by separate orders by coordinate benches of the Gujarat High Court, to six co-accused in a case of murder of five people.
The accused (respondents) were granted regular bail after filing charge sheets relating to offences punishable under Sections 302, 143, 144, 147, 148, 149, 341, 384, 120B, 506 and 34 of the IPC.
It also included offences punishable under the Sections 25 (1b)A, 27 and 29 of the Arms Act and Section 135 of the Gujarat Police Act.
Before the Supreme Court, the petitioner argued that the Single Bench Judge, on 22nd October 2020, on passing the first bail order on the matter, had noted that even though the applicant before the Bench was named in the FIR, the applicant’s name in the over act attributed earlier to them was missed out.
The Single Bench Judge, granted bail on this occasion and 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, 13th April 2021, the petitioner’s counsel argued that ‘despite the order passed by the Judge, the coordinate benches of the High Court had proceeded to deem some of the co-accused persons entitled to the benefit of parity on the basis of this order, only because the accused were also assigned a similar role of being armed with a stick as aforesaid applicant who had been granted bail’.
Justice Shah on the aforementioned problem said that, “I am not in favour of such orders (order stating that orders with Caveat to not be considered Precedent).”
Justice Chandrachud remarks on the statement made by Justice Shah by saying that, “This is a wider issue for consideration…I have never passed such an order saying that it is not to be treated as precedent, either here at the Supreme Court or in the High Court! It indicates the ack of confidence on one’s own order! My decision is my decision…saying that it is not to be considered a precedent shows a lack of moral conviction on one’s own view point! If I feel that an order is vulnerable, I should not pass it at all!”.
He continued stating that, “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…”.
Justice Shah added, “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”.
Justice Chandrachud reflected that, “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’”.
In subsequent orders granting bail, the coordinate Benches appreciated the applicants before them will be entitled to benefit parity as ‘the aforementioned co-accused, who was assigned the similar role of being armed with a stick, had already been granted bail.’