Factual Matrix :

2. It is not necessary to trace factual matrix. Suffice it to say that by the impugned order impugned in the present application, the Sessions Court of Greater Bombay has granted anticipatory bail only for nine days with direction to the accused to surrender before the remand court on or before 30th July, 2007 with liberty to apply for regular bail.

3. Numerous such orders are passed by the various Sessions Courts falling within the jurisdiction of this Court giving rise to the aforesaid legal issue. The parties are different but the legal issue raised is identical, as such all these cases were heard together and the issue raised is being answered by this order, reserving the liberty to consider individual cases on their own merits.

Submissions :

4. Mr.Shirish Gupte, Mr.A.P.Mundargi and Mr.Mahesh Jethmalani, learned senior counsel, Mr.Subhash Jha, Mr.S.V.Kotwal, Mr.M.S.Mohite and Mr.Amit Desai, learned advocates canvassed their respective submissions. Mr.S.R.Borulkar, learned Public Prosecutor argued for the State.

5. Mr Gupte, learned senior counsel urged that section 438 of the Code per se does not include any statutory discretion to limit the duration of anticipatory bail. He submits that careful perusal of the judgment in Gurbaksh Singh Sibbia v. State of Punjab, (1980) 2 SCC 565 shows that anticipatory bail can be granted even after FIR is filed, so long as the applicant has not been arrested.

6. He further submits that the judgment of the Supreme Court in the case of Salauddin Abdulsamad Shaikh v. State of Maharashtra, (1996) 1 SCC 667 holding that the order of anticipatory bail should necessarily be limited in point of time is per incuriam as the observations of the Constitution Bench were neither noticed nor referred to. That the observations made therein limiting the duration of anticipatory bail are therefore only obiter.

7. Mr.Gupte, further submits that if the observations of Salauddin’s case are held to be per incuriam and restricted to the facts of that case, then merely because the principles allegedly stated therein were reiterated and reproduced in the subsequent judgments of Anr. K.L.Verma v. State and Anr., (1998) 9 SCC 348; Sunita Devi v. State of Bihar, 2005 SCC (Cri) 435; Adri Dharan Das v. State of West Bengal Bengal, (2005) 4 SCC 303; D.K.Ganesh Babu v. Manoharan P.T.Manoharan, 2007(4) SCC 434; and Sohan Lal Juneja Punjab v. State of Punjab, 2007 (1) Crimes 20 would not make it good law and this Court would still be required to follow the view of the Constitution Bench.

8. Mr.Gupte further submits that in view of the principle of binding nature of precedents engrafted in Article 141 of the Constitution of India, it is well settled that the law laid down by the Constitution Bench of the Supreme Court would be binding and can only be differed from or set aside by a larger Bench. According to him, this practice is followed by the Supreme Court while dealing with various issues arising under Article 141 and the observations of the Supreme Court in this regard are themselves binding as law under Article 141. He further submits that if the law prohibits a smaller bench from digressing from the view taken by a larger Bench then this Court would be perpetuating an illegality by holding itself to be bound by the observations of a smaller Bench. Mr.Gupte was supported by M/s.Mundargi; Jha; Kotwal; and Mohite, who also reiterated the very same submissions.

9. Mr.Jethmalani, learned senior counsel, initially, tried to build up an argument on the assumption that there is a conflict between the view taken in the case of Gurbaksh Singh (supra) and other subsequent decisions of the Supreme Court referred to in para-7 (supra). Ho