Yesterday, the Bar and Bench reported a judgment of Allahabad High Court which it said "declared" some Supreme Court judgments as non-binding.

The question we are looking at is simple: Can a High Court declare a judgment of the Supreme Court as non-binding? The short answer is no. The long answer will follow.

Before addressing this question, let us see what the Allahabad High Court has actually done in this case.

Before the High Court, the State argued that the recent judgments of Hon'ble Supreme Court in the cases of Vihaan Vs. State of Harayana, Prabir Purkayastha Vs. State (NCT Delhi), Pankaj Bansal Vs. Union of India and Mihir Rajesh Shah Vs. State of Maharashtra are hit by the doctrine of stare decisis since these judgments have been passed without considering the earlier binding precedents of the Hon'ble Supreme Court itself and are therefore per incuriam and have no binding effect.

A decision rendered in ignorance of a previous binding decision of its own, or of a court of coordinate or higher jurisdiction, or in ignorance of the terms of a statute, is per incuriam and lacks precedential value.

Accepting this argument, the High Court respectfully "respectfully found" [it did not declare as reported by the Bar and Bench, though the effect is somewhat the same] that these recent judgments of the Supreme Court are not binding precedents and hit by the principles of stare decisis. Instead it followed another set of older SupremeCourt Judgments (including the judgment in Kanu Sanyal Vs. District Magistrate, Darjeeling ) and others to hold that "once investigation is concluded, charge sheet is submitted an order of cognizance on charge sheet is passed, the right to challenge the initial illegality in the order of remand cannot be enforced. "

The court said that the ratio of the first set of old judgments in the case of Kanu Sanyal and other judgments still hold good and have not been overruled. It criticized the latter (recent) judgments observing that " in the absence of any fetters on the right of accused to approach this court challenging his initial arrest, a pandoras box has been opened and the petitions are being filed after cognizance on charge sheet, framing of charge and remand orders under Sections 209 and 309 Cr.P.C and also during recording of evidence in trial."

So the real issue here is this: The High Court followed a set of Supreme Court judgments and refused to follow another set of recent Supreme Court judgments on the ground that the latter judgments are "per incuriam" and have no binding effect. Is this permissible?

Now, the law laid down by the Supreme Court in a decision delivered by a larger bench prevails and is binding on any subsequent bench of lesser or coequal strength, as well as on all other Courts, including the High Courts. But when a High Court is faced with conflicting judgments of the Supreme Court, the practical approach to resolving the conflict depends primarily on the strength of the benches that delivered the judgments, and in cases of equal bench strength, by application of the doctrine of per incuriam.

If the High Court follows one set of Supreme Court judgments and refuse to follow other set, it does not violate the doctrine of Stare Decisis or any law of Precedents. If it does, wouldn't it violate it anyway unless the rule is that the latest Supreme Court judgment on an issue is the only binding precedent on that issue, irrespective of the Bench strength. In this case, the High Court followed a judgment of the earlier Bench over recent judgments of the Supreme Court. So should it have followed the recent ones by finding the earlier Bench judgment as non-binding?