precedential value
venkatesh Rao
(Querist) 03 April 2011
This query is : Resolved
In a reported derision of 1983 , three judge bench of supreme court in an appeal u/o 136 released the accused on probation in a 409 case. also added that this judgement shall not be a precedent. My questions are:
1. 409 IPC is punishable with maximum of life and hence PO Act is not applicable. Can the Supreme court even under Art.142 pass such orders which is expressly prohibited under a law in force unless the law is declared unconstitutional?
2. Once a judgment is pronounced, by operation of law under Art.141, it becomes a binding precedent even to the supreme court unless set aside by the larger bench of supreme court. How come the supreme court can order that it can not be a precedent? the spirit of 142 is somewhat different and the power vested therein relats to facts of a particular case and not the legal aspect.
3. Does such clause not offend Art. 14 if similarly situated persons are deprived of the benefits of precedent?
In spite of best efforts, I could not lay my hands on the decision.
will constitutional experts resolve my doubt?
R.Ramachandran
(Expert) 03 April 2011
Dear Mr. Venkatesh Rao,
I fully agree with you.
There are many things which the SC does are not at all correct.
Probably realising their folly, the SC itself might have said that their decision in the case in question is not a binding precedent.
At best even if you approach any larger bench, they will declare the earlier wrong decision as 'per incuriam'. So you are left with no choice than to willy nilly accept what the SC had done.
That is why Jurist Mr. Krishna Iyer used to say, Supreme Court is final not because it is infallible; it is infallible just because it is FINAL.
