SOLANKI RAVIBHAI DIPUBHAI Vs. STATE OF GUJARAT

JUDGEMENT

(1.) Whether the applicants who apprehend arrest on the charge of non-cognizable offence punishable with death or imprisonment for life are entitled to be released on anticipatory bail pending investigation is a question to be answered in this application.

(2.) Heard learned Advocate Mr. K. J. Shethna for the applicants, learned A. P. P. Shri M. A. Bukhari for the opponents Nos. 1 and 2 - State and the Investigating Officer and learned Advocate Mr. P. M. Thakkar for the original complainant-father of the victim. Mr. Thakkar is given audiance with a positive understanding that he has no locus standi, but, only on humanitarian ground representing the father of the victim.

(3.) Before the application be decided on merits, it is necessary to decide as to which of the judgments - Gurbakshsingh v. State of Punjab and Haryana, ( AIR 1980 SC 1632) should be followed or Kiran Devi v. State of Rajasthan (1987 Supp. SCC 549) is required to be followed as both form precedent under Art. 141 of the Constitution of India. It is known that a pronouncement of law by Division Bench of the Court is binding on a Division Bench of the same or a smaller number of Judges and in order that such decision be binding, it is not necessary that it should be a decision rendered by the Full Court or a Constitutional Bench of the Court. The judgment in the case of Gurbakshsingh is a judgment rendered by a Division Bench of five Judges, while the judgment in Kiren Devi case (supra) is rendered by a Division Bench of two Judges. It will also be pertinent to state that the question before both the Benches was whether the accused if apprehends arrest on an accusation of having committed a non-bailable offence is entitled to be released on anticipatory bail or not. The Supreme Court in the case of Union of India v. Raghuvirsingh ( AIR 1989 SC 1933) has observed in answer to the question as to the effect of law pronounced by the Division Bench in relation to a case raising same points subsequently before the Division Bench, before a smaller number of Judges. The Supreme Court has observed :