S.NAINAR SUNDARAM - (1.) For himself for R. K. ABICHANDANI, J. (Majority view) : The question that stands referred to us, as a Full Bench, for our consideration and answer, runs as follows: "Whether the cases for the offences punishable under Chapters XVI and XVII of the I. P. C. and Chapter V of the Arms Act, 1959, pending investigation can be taken into consideration for arriving at the subjective satisfaction as to whether a person is a 'dangerous person' within the meaning of Sec. 2(c) of the Gujarat Prevention of Anti-Social Activities Act, 1985?" The need for the reference arose, because, B. S. Kapadia and N. J. Pandya, JJ., who have made the reference, found themselves not in a position to agree with the view of the Bench of C. V. Jani and (one of us), S. D. Dave, JJ., in Shamjibhai Manjibhai Patel v. Commissioner of Police, City of Ahmedabad & Anr., 1992 (2) XXXIII (2) GLR 1360. wherein it was opined : "......... it shall have to be accepted that the detaining authority could not have utilised the registration of the abovesaid 4 Criminal Cases against the petitioner-detenu, because at the relevant time they were all under investigation." The Bench, in Shamjibhai Manjibhai Patel v. Commissioner of Police, City of Ahmedabad and Am., 1992 (2) XXXIII (2) GLR 1360, followed the pronouncement of the Apex Court in Abdul Razak Nannekhan Pathdn v. Police Commissioner, Ahmedabad and Anr., 1990 (2) GLH 137 (SC). The relevant passage occurring therein and followed by the Bench in Shamjibhai Manjibhai Patel v. Commissioner of Police, City of Ahmedabad and Anr., 1992 (2) XXXIII (2) GLR 1360, runs as follows : "......... Merely on consideration of the other three criminal cases, which are under investigation and are yet to be decided the detaining authority cannot come to this subjective satisfaction that the detenu was a dangerous person who habitually indulges in committing offences referred to in Sec. 2(c) of PASA Act." If the passage in Abdul Razak Nannekhan Pathan v. Police Commissioner, Ahmedabad and Anr., 1990 (2) GLH 137 (SC) is a ratio decidendi of law in the pronouncement, then, this Court, in the absence of any other binding pronouncement of the Apex Court, will have to follow it. The ratio decidendi must be of law, for, even a finding of fact in this sense would be the ratio decidendi. The facts of ratio decidendi have been summarised by Dias on Jurisprudence, Fourth Edition, in the following terms : "... What is "law" in a precedent is its ruling or ratio decidendi and this concerns future litigants as well as those involved in the immediate dispute. Statements which are not part of the ratio decidendi are distinguished as obiter dicta and are not authoritative. Three shades of meaning can be attached to the expression "ratio decidendi". The first, which is the translation of it, is "the reason for (or of) deciding". Even a finding of fact may in this sense be the ratio decidendi. Thus, a Judge may state a rule and then decide that the facts do not fall within it. Secondly, it may mean "the rule of law proffered by the Judge as the basis of his decision", or, thirdly, it may mean "the rule of law which others regard as being of binding authority." Salmond on Jurisprudence, Twelfth Edition, spoke as to how far a ratio decidendi in a pronouncement is conclusive as follows : "...... As against persons not parties to the suit, the only part of a case which is conclusive (with the exception of cases relating to status) is the general rule of law for which it is authority. This rule or proposition, the ratio decidendi, may be described roughly as the rule of law applied by and acted on by the Court, or the rule which the Court regarded as governing the case..." The eminent author recapitulated the tests, one of Professor Wambaugh and another of Dr. Goodhart. The test promulgated by Professor Wambaugh, as per extract found in the above Edition, runs as follows : "... The 'reversal' test of Professor Wambaugh suggested that we should take the proposition of law put forward by the Judge, reverse or negate it, and then see if its reversal would have altered the actual decision. If so, then the proposition is the ratio or part of it; of the reversal would have made no difference, it is not In other words the ratio is a general rule without which the case would have been decided otherwise..." The test suggested by Dr. Goodhart, in the same Edition, has been extracted in the following terms : "... Another test is that suggested by Dr. Goodhart. According to this the ratio is to be determined by ascertaining the facts treated as material by the Judge together with his decision on those facts. This test directs us away from what Judges say towards what in fact they do, and indeed it is the only way of deriving a ratio in cases where no judgment is given. Where a judgment is given, however, it is from this that we must discover which facts the Judge deemed material and which not..." The eminent author Salmond noticed a shortcoming in the test formulated by Dr. Goodhart as follows : "... The only shortcoming of Goodhart's test is that while it provides a very useful method of ascertaining the ratio decidendi of a ease, this does not appear to be quite the same method as that in current use in practice. For in practice the Courts seem to pay more attention to the Judge's own formulation of the rule of law than Dr. Goodhart's test would allow; the Courts look at this, it seems, not just to discover the material facts but to discover the rule which the Judge thought himself to be applying. On the other hand it is true that any such rule must be evaluated in the light of the facts considered by the Court to be material......" The same test of Professor Wambaugh has been recapitulated by Rupert Cross in "Precedent in English Law as follows : "... First frame carefully the' supposed proposition of law. Let him then insert in the proposition a word reversing its meaning. Let him then inquire whether, if the Court had conceived this new proposition to Be good and had it in mind, the decision would have been the same. If the answer be affirmative, then, however excellent the original proposition may be, the case is not a precedent for that proposition, if the answer be negative, the case is authority for the originarpropo-sition and possibly for other propositions also. In short, when a case turns only on one point, the proposition or doctrine of the case, the reason of the decision, the ratio decidendi, must be a general rule without which the case must have been decided otherwise." It was then observed that "a proposition of law which is not ratio decidendi under the above test must, according to Wambaugh, constitute a mere dictum". In Halsbury's Laws of England, Fourth Edition, while dealing with ratio decidendi and its binding nature, the terse observations run as : "...The enunciation of the reason or principle upon which a question before a Court has been decided is alone bindmg as a precedent. This underlying principle is called the ratio decidendi. namely the general reasons given for the decision or the general grounds upon which it is based, detached or abstracted from the specific peculiarities of the particular case which gives-rise to the decision..."
(2.) How to deduce a ratio decidendi of law from its pronouncements, so as to form a binding precedent, as law declared by the Apex Court within the meaning of Art. 141 has found guidance in the very pronouncements of the Apex Court themselves.
(3.) In State of Orissa v. Sudhansu Sekhar Misra and Ors., AIR ,1968 SC 647, five learned Judges of the Apex Court spoke as follows : "... A decision is only an authority for what it actually decides. What is of the essence in a decision is its ratio and note very observation found therein .nor what logically follows from the various observations made in it. On this topic this is what Earl of Halsbury LC said in Quinn v. Leathern, 1901 0 AC 495 : 'Now before discussing the case of Alien y. flood, 1898 AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such aumode of reasoning assumes that the law is necessarily a logical Code. whereas every lawyer must acknowledge that the law is not always logical at all.' It is not a profitable task to extract a sentence here and there from a judgment and to build upon it." In H. H. Maharajadhiraja Madhav Rao Jivaji Rao Scindia Bahadw and Ors. v. Union of India, AIR 1971 SC 530, a case, decided by eleven Judges, the Apex Court took note of the fact that the Court was not called upon to decide a particular question as of law, and observed as follows : ".........It is difficult to regard a word a clause or a sentence occurring in a judgment of this Court, divorced from its context, as containing a full exposition of the law on a question when the question did not even fall to be answered in that judgment." In Municipal Committee, Amritsar v. Hazara Singh, AIR 1975 SC 1087, three Judges of the Apex Court opined that distortion of the passage in a judgment could not pass muster, and approved the following observations of the High Court of Kerala in State of Kerala v. Parameswaran Pilial Vasudevan Nair, 1975 FAC 8 : (1975 Cri.LJ 97) : "Judicial propriety, dignity and decorum demand that being the highest judicial tribunal in the country even obiter dictum of the Supreme Court should be accepted as binding. Declaration of law by that Court even if it be only by the way has to be respected. But all that does not mean that every statement contained in a judgment of that Court would be attracted by Art. 141. Statements on matters other than law have no binding force. Several decisions of the Supreme Court are on facts and that Court itself has pointed out in Gurcharan Singh v. State of Punjab, (1972 FAC 549) and Prakesh Chandra Palhak v. State of Uttar Pradesh (AIR 1960 SC 195) that as on facts no two cases could be similar, its own decisions which were essentially on questions of fact could not be relied upon as precedents for decision of other eases." In Additional District Magistrate, Jabalpur v. Shivakant Shukia, AIR 1976 SC 1207, a case decided by five Judges, it was cautioned as follows : "...... Moreover, it must be remembered that when we are considering the observations of a high judicial authority like this Court, the greatest possible care must be taken to relate the observations of a judge to the precise issues before him and to confine such observations, even though expressed in broad terms, in the general compass of the question before him, unless he makes it clear that he intended his remarks to have a wider ambit....";