Lord Denning in his book The Discipline Of Law expressed his views about the doctrine of precedents in the following words :
“it is the foundation of our system of case law. This has evolved by broadening down from precedent to precedent . By standing by previous decisions , we have kept the common law on a good course . All that I am against is its too rigid application – a rigidity which insists that a bad precedent must necessarily be followed . I would treat it as you would a path through the woods. You must follow it certainly so as to reach your end . But you must not let the path become too overgrown . You must cut out the dead wood and trim out the side branches , else you will find yourself lost in thickets and brambles . My plea is simply to keep the path to justice clear of obstructions which would impede it.”
Benjamin N Cardozo, in his famous treatise The Nature of The Judicial Process wrote ;
“the rule of adherence to precedent is applied with less rigidity in the United States than in England . The House of Lords holds itself absolutely bound by its own prior decisions . The United States Supreme Court and the highest courts of the several states overrule their own prior decisions when manifestly erroneous.”
In India, the principle is stated in the judgement of Waman Rao versus Union of India (1981)2SCC 362
“ stare decisis et non quieta movere which means ‘to stand by decisions and not to disturb what is settled ‘ was put by Coke “ those things which have been so often adjudged ought to rest in peace “
Sometimes it may happen that a decision is rendered contrary to a statute or it does not refer to an earlier judgement on the same legal issue or fails to give reasons . Such a situation is enshrined in the concept of “per incurium.”
Salmond states “ a decision held is not binding since it was decided without argument , without reference to the crucial words of the rule, and without any citation of authority.”
Dias in his Jurisprudence wrote
“ the third exception … if the decision was given per incurium ie in ignorance of a statute or other binding authority , the Court of Appeal is not bound by it .”
Black’s Law Dictionary defines per incurium as “through inadvertence.” (Latin )
LexisNexis “ A judicial decision is made per incurium if it is made in ignorance of a relevant statutory provision or a relevant, binding decision of Court , and awareness of that earlier provision or decision would have led to a different result.”
Let us study two recent judgements of the Supreme Court of India and analyze them from the perspective of doctrine of precedents .
26th April , 2023
Judgement is delivered in the case of Ritu Chhabaria versus Union of India and Others Writ Petition (Criminal) 60 of 2023.
The petitioner had invoked the writ jurisdiction of the Supreme Court and prayed for release on bail of her husband as investigation was pending inspite of the lapse of statutory period envisaged for grant of default bail under section 167 (2) Cr. PC .
By means of a detailed judgement the following answers were given to the issues framed :
- Without completing the investigation of the case , a chargesheet or prosecution complaint cannot be filed by an investigating agency only to deprive an arrested accused of his right to default bail under section 167 (2) of the CrPC.
- Such a chargesheet , if filed by an investigating authority without first completing the investigation , would not extinguish the right to default bail under Section 167(2) CrPC.
- The trial court , in such cases , cannot continue to remand an arrested person beyond the maximum stipulated time without offering the arrested person default bail.
Enforcement directorate assailed one such bail granted by Delhi High Court on April 28th ,2023 to one Manpreet Singh Talwar on the basis of judgement rendered in Ritu Chhabria case . An urgent plea was raised by Enforcement Directorate to stay April 26TH verdict as the same is contrary to 3judge ruling in Vipul Agrawal case , Dinesh Dalmia case and Abdul Azeez case.
Union of India also intends to move a recall application as according to Union Of India the judgement in Ritu Chhabria case is per incurium as it failed to take into consideration previous judgements ( mentioned above )
Supreme Court Of India passed the following order :
“ 1. Upon being mentioned taken on record.
2. list the proceedings on 4th May 2023 before a bench of three judges .
3. in the meantime , in the event that any other applications have been filed before any other Court on the basis of the judgement of which recall is sought , they shall be presently deferred beyond 4 May 2023.”
Directorate Of Enforcement versus Manppreet Singh Talwar
Special Leave Petition (Criminal ) Diary No(s) 18272 /2023
A three judges bench would hear the matter and the main issue would be the doctrine of precedents and whether the judgement is per incurium .
3rd MAY 2023
PEETHAMBARAN VERSUS STATE OF KERALA AND ANOTHER
CRIMINAL APPEAL No 1381/2023.
The issue before the Supreme Court of India was
“whether the District Police Chief , Kottayam could have ordered further investigation pursuant to which the second final report was filed ?
In para 28 the question is answered as
“ the above discussion makes clear that the District Police Chief , Kottayam could not have ordered further investigation , as that power rests either with the concerned magistrate or with a higher court and not with an investigating agency “
The statutory provision regarding further investigation is enshrined in section 173 (8) of CrPC;
“Nothing in this section shall be deemed to preclude further investigation in respect of an offence after a report under sub -section (2) has been forwarded to the Magistrate and, where upon such investigation , the officer in charge of the police station obtains further evidence , oral or documentary , he shall forward to the Magistrate a further report or reports regarding such evidence in the form prescribed ; and the provisions of sub-section (2) to (6) shall, as far as may be , apply in relation to such report or reports as they apply in relation to a report forwarded under sub-section (2).”
Another relevant statutory provision is section 36 CrPC
“Police officers superior in rank to an officer in charge of a police station may exercise the same powers , throughout the local area to which they are appointed , as may be exercised by such officer within the limits of his station .”
In the case of Vinay Tyagi versus Irshad Ali Criminal Appeals 2040-2041 of 2012 it was held ;
“ a very wide power is vested in the investigating agency to conduct further investigation after it has filed the report in terms of section 173(2) .”
“ further investigation is where the investigating officer obtains further oral or documentary evidence after the final report has been filed before the court in terms of section 173 (8). This power is vested with the executive.”
Ratio of the judgement is in paragraph 40.1 – 40.6
“ the Code is a procedural document ,thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved . it does not stand to reason that the legislature provided power of further investigation to the police even after filing a report , but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand , the court can still not direct the investigating agency to conduct further investigation which it could do on its own .”
Thus , we can see that both the statute and the judgements of Supreme Court acknowledge the power vested in executive to conduct further investigation.
In fact in Vinay Tyagi, power to order further investigation was vested on Magistrates on the premise that such power vests in police therefore, Magistrate should also be having similar power to direct further investigation where the facts of the case and ends of justice demand.
Thus, we see that Ritu Chhabria would now be decided again by a bench of three judges as Union Of India has assailed the verdict on doctrine of per incurium.
Whether in Peethambaran the statutory provisions and earlier judgements of Supreme Court Of India have been relied upon or not is the question I leave for the readers especially young and budding lawyers and students of the subject.
To conclude , in the words of Lord Denning
“ May I ask you also in your own progress in the law , not to rely over much on legality -on the technical rules of law -but ever to seek those things which are right and true : for there alone you would find the road to justice .”
Lord Denning “Road to Justice.”
SUPREME COURT OF INDIA AND HIGH COURT