IMPORTANT POINT
High Court cannot doubt the ratio of a Privy Council case. Only Supreme Court can do this.

Headnote:(i) Law of Precedent-Evidence Act, 1872-Section 27-Privy Council s decision in Pulikuri Kottaya & Ors. v. Emperor (AIR 1947 P.C. 67)-Doubted by a D.B. of Bombay High Court-Whether proper?-(No) (see paras 1 to 7) (see also paras 14, 15).
       (ii) Indian Penal Code, 1860-Sections 302, 307, 302/149, 302/34-Nature of offence-A2 along with others chasing deceased and PW2-Both deceased and PW2 sustained serious gun injuries-PW2 received bullet injury from A2 s gun-Trial Court convicting A2 u/s. 307 IPC-High Court raised up conviction to 302/149 and sentenced to imprisonment for life-Whether offence is u/s. 307 IPC or 302/149 IPC or 302/34 IPC? (under Section 302/34 IPC)-His appeal dismissed.
       Held : Mr. S.R. Chitnis, made an alternative endeavour to show that the act committed by A2 can at the worst amount only to the offence under Section 307 of the IPC because PW2 had not succumbed to the injuries. When A2 along with other assailants alighted from the jeep together and chased the deceased and PW2 together and fired their lethal weapons together, the common intention shared by A2 with other assailants (A1 and A3) looms large, albeit the fact that the bullet of his fire arm could reach only upto the body of PW2 who was not destined to die. What A1 and A3 had done was certainly with the common intention shared by A2-Nazir Babu also. Of course, the High Court has convicted him under Section 302 with the help of Section 149 of the IPC. That error has to be corrected by us. We, therefore, confirm the conviction and sentence passed on A2-Nazir Babu Sheikh under Section 302 with the aid of 34 of the IPC and dismiss Crl. Appeal NO. 189/2000. (Para 16)
       (iii) Indian Penal Code, 1860-Sections 326/149-Conviction of appellants (A4 and A6) under-A4 and A6 chasing with knives along with others having guns-Gun shots fired-Ram Dass dying and PW2 receiving serious injury-Trial Court acquitted A4 and A6 but High Court convicted them u/s. 326/149 IPC-Whether correct? (No)-Their appeal allowed.
       Held : But the position of A4 and A6 is different. Though they had knives with them they had not chosen to do anything. Even after the deceased fell down they did not move forward to inflict even a scratch on him. They did not do any harm to PW2. There is nothing to indicate that they knew about the design of the other assailants. They were acquitted by the trial court. The view taken by the trial court on the facts of the case is reasonable and hence it was impermissible for the appellate court to interfere with the acquittal. (Para 17)
       Held finally : We, therefore, allow Crl. Appeal No. 194/2000 and set aside the conviction and sentence passed on A4-Pandurang and A6-Janardhan Shaligram Patil. They are acquitted. Their bail bond will stand discharged. (A copy of this judgment will be forwarded to the Registrar of the Bombay High Court as copies of the impugned judgment were directed to be circulated to all the sessions judges under Bombay High Court. Now it is necessary to bring this also to the notice of all those sessions judges). (Para 18)

JUDGMENT

Thomas, J.-A Division Bench of the High Court of Bombay has ventured to disagree with a ratio which has become locus classicus and well stood the long period of half-a-century. That ratio is the one laid down in the celebrated decision in Pulikuri Kottaya and Ors. vs. Emperor (AIR 1947 Privy Council 67). In that exercise the Division Bench of the Bombay High Court had unwittingly overlooked another legal guideline delineated by a Full Bench of the Bombay High Court itself in State of Bombay vs. Chhaganlal Gangaram Lavar (AIR 1955 Bombay 1) wherein Chief Justice Chagla speaking for the Full Bench had said thus:-

"so long as the Supreme Court does not take a different view from the view taken by the Privy Council, the decisions of the Privy Council are still binding upon us, and when we say that the decisions of the Privy Council are binding upon us, what is binding is not merely the point actually decided but an opinion expressed by the Privy Council, which opinion is expressed after careful consideration of all the arguments and which is deliberately and advisedly given."

2. Quite possibly the attention of the learned Judges of the Division Bench of the High Court would not have been drawn to the observations made by Chagla, C.J. of the Full Bench of the Bombay High Court in the aforecited decision, for, otherwise we are sure that learned Judges of the Division Bench would not have erred into the matter of judicial discipline.

3. While delivering judgment in two connected criminal appeals relating to the murder of one Ramdas, the Division Bench of the Bombay High Court (D.K. Trivedi and D.G. Deshpande, JJ.) proceeded to consider the legal proposition propounded in Pulikuri Kottaya and held thus:-

"With respect we are unable to agree with the interpretation of the Privy Council of Section 27 not because it does not lay down correct Law but because it has failed to take into consideration some material aspect of Section 27 of the Evidence Act..... The observation of the Privy Council that it is fallacious to treat the "fact discovered within the section as equivalent to the "object produced", in our humble and respectful opinion is not based on proper construction of the word fact deposed to used in Section 27. Because the definition of the fact given in Section 3 of the Evidence Act is not considered at all. The object discovered is a fact, and therefore, when a witness is deposing in the court and deposes to a fact, it means he could and he should depose about the object, discovered".

4. The legal proposition adumbrated in Pulikuri Kottaya has been considered and tested by this Court, time and again, and on all such occasions this Court has only reiterated the said principle with approval (vide Jaffar Hussain Dastagir vs. State of Maharashtra (1969) 2 SCC 872; AIR 1970 SC 1788, (1983) 2 SCC 330, (1995) (4) SCC 392, Shamshul Kanwar vs. State of U.P. (1995) 4 SCC 430 and State of Rajasthan vs. Bhup Singh (1997) 10 SCC 675 Para 15 and in the last cited decision this Court, while again re-affirming the ratio in Pulikuri Kottaya has said thus:-

"The ratio therein (Kottaya) has become locus classicus and even the lapse of half-a-century after its pronouncement has not eroded its forensic worth."

5. Even the recent decision in State of Maharashtra vs. Damu (2000(6) SCC 269) this Court followed Pulikuri Kottaya with approval. The fallacy committed by the Division Bench as per the impugned judgment is possibly on account of truncating the word "fact" in Section 27 of the Evidence Act from the adjoining word "discovered". The essence of Section 27 is that it was enacted as a proviso to the two preceding Sections (see Sections 25 and 26) which imposed a complete ban on the admissibility of any confession made by an accused either to the police or to any one while the accused is in police custody. The object of

making a provision in Section 27 was to permit a certain portion of the statement made by an accused to a police

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2002 Supreme(SC) 69

IMPORTANT POINT High Court cannot doubt the ratio of a Privy Council case. Only Supreme Court can do this.

Cases Referred (8)

IMPORTANT POINT
High Court cannot doubt the ratio of a Privy Council case. Only Supreme Court can do this.