K. S. LODHA, J - (1.) THIS application for bail u/s 439 Cr. P. C. has been filed on behalf of Dewa Ram, who is facing trial for an offence u/s 302 I. P. C. before the Court of Sessions at Merta. The matter earlier came up before me on 16. 6. 83 and on that date, it was found that the case was fixed for recording the evidence of the eye witness Jhumar Ram on 25. 6. 83. Therefore, the hearing of the bail application was postponed. The matter then came up on 29. 6. 83 and it was found that on 25. 6. 83, the learned Sessions Judge was on leave and, therefore, the aforesaid eye witness could not be examined and that the case had been adjourned to 6. 7. 83. It was, therefore, directed that the bail application may be listed for hearing on 8. 7. 83. A direction was given to the learned Sessions Judge to see that the witness is examined before that date. It was also observed that in case the witness is not so examined, the bail application will be heard on that date. In the meantime, the learned counsel for the petitioner moved an application raising an additional ground for bail. It was contended that on 25. 6. 83, the learned Sessions Judge was on leave and had not authorised the learned Addl Sessions Judge of the learned Chief Judl. Magistrate or the learned Addl. Chief Judl. Magistrate u/s 10 (3) Cr. P. C. while the learned Addl. Chief Judl. Magistrate adjourned the case and remanded the accused to custody upto 6. 7. 83 and, therefore, the detention of the accused from 25. 6. 83 to 6. 7. 83 was illegal and on that account, he is entitled to bail. In this respect, the relevant material was sent for from the learned Sessions Judge. It appears that it took undue long time in getting the same and even after the receipt of that material, the case was got adjourned for one reason or the other. It has now come up for hearing.
(2.) SO far as the question of release of the accused on bail on the merits of the case is concerned, the learned counsel has tried to point out certain inherent weaknesses of the prosecution story but looking to all the facts and circumstances of the case, at this stage I am not prepared to enlarge the accused on bail as the main eye witness Jhumar Ram, who is also the first informant, has not been examined as yet it may be mentioned here that a perusal of the order sheets of the learned Sessions Judge would reveal that the prosecution alone cannot be said to be wholly responsible for the delay in the examination of this wit-ness. It appears that even after the direction of this Court dated 29. 6. 83, the witness could not be examined on same dates, because incidentally on the same dates, knowingly or unknowingly the bail application was got fixed for hearing before this court and on that account probably the case diary was not available there. Be that as it may, the fact remains that Jhumar Ram has not been examined and in the circumstances of the case, at this stage, it would not be proper to enlarge the accused on bail. I would also not, therefore, like to discuss the alleged infirmities of the case at this stage. Now coming to the additional ground, it may be stated that the question whether on account of the alleged illegal detention for some period, of the accused though thereafter he may have been remanded to custody by a proper; valid order should or should not be a ground for release of the accused on bail, has been a matter of divergent opinions before this Court. In Rati Ram vs. State of Raj. (1), a learned single Judge of this Court was of the view "once an order of remand expires and a fresh order of remand is not passed then the detention becomes illegal, The liberty of an individual is guaranteed under the provisions of the Constitution. By a subsequent order of remand for a subsequent period, the previous order of detention which was patently illegal, cannot be cured. However, it is argued that the subsequent detention justified by orders of remand would cure all illegal detention. If this argument is accepted as such then the very purpose of liberty of an individual would be jeoperdised, and on that ground holding that there had been illegal detention of the accused for some time, the learned Judge granted bail. In another case, an other learned single Judge in Kana vs. The State (2) observed as under :- "it can, therefore, be said that except in a case where Section 167 Cr. P. C. applies and where the detention of the accused cannot be authorised, exceeding a period of 90 days, and on this account the accused becomes entitled for being released on bail, if he is prepared to and does furnish bail, there is no warrant to hold that all cases, in which at some anterior date the detention of the accused was illegal the accused is entitled to be released on bail if the detention is legal at the time when the bail application is filed or it comes for consideration. If the detention of the accused is legal, when the bail application is preferred his previous illegal detention should not be considered. " In that case, the learned Judge found that the detention of the accused at the time of the consideration of the bail application was legal and, therefore, according to him, the accused was not entitled to be released on bail because some period of his detention before the commitment to the Court of Sessions was illegal. Both these cases came up for consideration before a Division Bench of this Court sitting at Jodhpur in Taju Khan vs. The State of Rajasthan (3) on a reference made by a learned single Judge. After a detailed discussion and after examining various authorities, the learned Division Bench disapproved the view taken in Rati Ram's case (supra) but approved the view taken in Kana's case (supra ). According to this view, what was relevant was the detention of the accused at the time of the consideration of the bail application. If that detention was legal, the earlier illegal detention would not entitle the accused to bail. However, Rati Ram's case (supra) again came up for consideration before another Division Bench of this Court sitting at Jaipur and that also on a reference by a learned single Judge and in that case, the learned Division Bench subscribed to the view taken in Rati Ram's case (supra) and a similar view also taken in Narayan vs. State of Rajasthan (4 ). Unfortunately, the decision of the Division Bench at Jodhpur was not brought to the notice of the learned Division Bench, which decided the matter in the case of Manohari vs. State of Rajasthan (5 ). Thus there are conflicting decisions on this question by not only Single Benches but also of two Division Benches of this Court. The question which arises for consideration before me in this situation is as to which view should be followed or the matter may be referred to a larger bench. I have given my careful consideration to this vering question and in my opinion, for the reasons, which I shall presently state, a reference to the larger bench would not be necessary and in my opinion, the view taken in Taju Khan's case (supra) must be followed. The reason for this is that the decision in Taju Khan's case (supra) was a decision by a Division Bench of this Court It has been hold by a Full Bench of this Court in Jaiwant Rao vs. State of Rajasthan (6), relying upon various authorities of the other High Courts and the Hon'ble Supreme Court that it is a well recognised and salutary rule of practice that a single Judge is bound by the decision of a Bench of two or more judges and a Division Bench is bound by the decision of another Division Bench. This very principle has been reiterated by the Hon'ble Supreme Court in V. B. G. & G. O. M. C. Co. vs. State of A. P. (7), in the following words :- "it is strange that a co-ordinate Bench of the same High Court should have tried to sit on judgment over a decision of another Bench of that court. It is regretable that the learned Judges who decided the latter case overlooked the fact that they were bound by the earlier decision. If they wanted that the earlier decision should be reconsidered, they should have referred the question in issue to a larger bench and not to ignore the earlier decision. " Thus there is no doubt that a decision of a Division Bench of a High Court is binding on another Division Bench of the same High Court in a subsequent case. That being so, the view taken in the first Division Bench case must prevail because if it was binding on a subsequent Division Bench and that Division Bench took a contrary view probably because the earlier decision was not brought to its notice, the earlier Division Bench decision would not lose its binding force. The view of the latter Division Bench being contrary to the earlier Division Bench decision,therefore, cannot bind a subsequent bench whether Single Bench or Division Bench and that bench must naturally follow the earlier decision. It may at once be stated at this stage that there is some conflict of opinion about the precedence of conflicting decisions of superior court. Some courts have taken the view that the earlier view of the superior court must be followed whereas other courts have taken the view that the latest view of the superior court is to be followed. I am not required to go into this question in the present case because here I am concerned with the conflicting opinions of the Division Benches of this very Court and in this respect, the view already stands settled by the decision of the Hon'ble Supreme Court referred to above. If the latter Division Bench of this Court was bound by the earlier Division Bench decision, I am certainly bound by that decision and have no option but to follow it. That being so, the position is that even if the detention of the accused Dewa Ram from 25th June to 6th July, 83 were to be held to be illegal, this would not entitle him to bail because on 6th July, he had been remanded to custody by a proper order of the learned Sessions Judge. This factual position is not in dispute before me.
(3.) FOR the reasons stated above, this bail application fails and is hereby rejected at this stage. .;