While dealing with the power of High Court and Sessions Court to entertain an application for regular bail directly, thereby putting an to end to the decades old practice of first filing a regular Bail Application before a Magistrate, as a condition precedent before approaching the Sessions Court or High Court for bail, the Supreme Court has expressed its displeasure in strongest possible words of the way in which the Courts including the High Courts discussing the ratios of the Supreme Court judgements. The Court finds that editorial note in the 'Supreme Court Reports'(SCR) is misleading and in the impugned Order before it, the learned Single Judge appears to have blindly followed the incorrect and certainly misleading editorial note.
The Court holds (Para – 16), "We must now discuss in detail the decision of a Two-Judge Bench in Rashmi Rekha Thatoi vs State of Orissa, for the reason that in the impugned Order the Single Judge of the High Court has proclaimed, which word we used intentionally, that Niranjan Singh is per incuriam. The 'chronology of cases' mentioned in Rashmi Rekha elucidates that there is only one judgment anterior to Niranjan Singh, namely, Balchand Jain vs State of M.P., which along with the Constitution Bench decision in Gurbaksh Singh Sibbia, intrinsically concerned itself only with anticipatory bail.
It is necessary to give a salutary clarion caution to all Courts, including High Courts, to be extremely careful and circumspect in concluding a judgment of the Supreme Court to be per incuriam. In the present case, in the impugned Order the learned Single Judge appears to have blindly followed the incorrect and certainly misleading editorial note in the Supreme Court Reports without taking the trouble of conscientiously apprising himself of the context in which Rashmi Rekha appears to hold Niranjan Singh per incuriam, and equally importantly, to which previous judgment.
An earlier judgment cannot possibly be seen as per incuriam a later judgment as the latter if numerically stronger only then it would overrule the former. Rashmi Rekha dealt with anticipatory bail under Section 438 and only tangentially with Sections 437 and 439 of the CrPC, and while deliberations and observations found in this clutch of cases may not be circumscribed by the term obiter dicta, it must concede to any judgment directly on point. In the factual matrix before us, Niranjan Singh is the precedent of relevance and not Gurbaksh Singh Sibbia or any other decision where the scope and sweep of anticipatory bail was at the fulcrum of the conundrum"
The judgement is by a Bench of Justices K S Radhakrishnan and Vikramajit Sen in Sundeep Kumar Bafna Vs. State of Maharashtra & ANR.