II Halsbury’s Laws of England (4th Edition) which states that – “Arrest consists of the actual seizure or touching of a person’s body with a view to his detention. In the common law system, the purpose of precedents is to impart predictability to law, regrettably the judicial indiscipline displayed in the impugned Judgment, defeats it. We, therefore, do not proceed to upset the order on this ground. We are unable to locate any provision in the which prohibits an accused from moving the Court of Session for such a relief except, theoretically, which also only prohibits it from taking cognizance of an offence as a Court of original jurisdiction. In Roshan Beevi, the Full Bench of the High Court of Madras, speaking through S. Ratnavel Pandian J, held that the terms ‘custody’ and ‘arrest’ are not synonymous even though in every arrest there is a deprivation of liberty is custody but not vice versa. It is in order to guard against the possibility of inconsistent decisions on points of law by different Division Benches that the Rule has been evolved, in order to promote consistency and certainty in the development of the law and its contemporary status, that the statement of the law by a Division Bench is considered binding on a Division Bench of the same or lesser number of Judges. What is to happen to the accused in this interregnum; can his liberty be jeopardized! Though ‘custody’ may amount to an arrest in certain circumstances but not under all circumstances. A decision or judgment can be per incuriam any provision in a statute, rule or regulation, which was not brought to the notice of the Court. There is no constitutional or statutory prescription in the matter, and the point is governed entirely by the practice in India of the courts sanctified by repeated affirmation over a century of time. The first one is reported as 2005 (Supp.) The argument continues that in this manner absconding accused in several sensitive cases, affecting the security of the nation or the economy of the country, would take advantage of such an interpretation of law and get away from the clutches of the investigating officer. So far as the Sessions Court is concerned, it is the Public Prosecutor who must at all times remain in control of the prosecution and a counsel of a private party can only assist the Public Prosecutor in discharging its responsibility. This course was courted by him, in the event again in vain, as the bail application preferred by him under CrPC has been dismissed by the High Court in terms of the impugned Order dated 6.2.2014. 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.17. The regimes regulating the powers of the Magistrate on the one hand and the two superior Courts are decidedly and intentionally not identical, but vitally and drastically dissimilar. We, respectfully, agree with the observations that – “A Public Prosecutor is not expected to show a thirst to reach the case in the conviction of the accused somehow or the other irrespective of the true facts involved in the case. Doctrine of ‘Per Incuriam’: Critical Analysis based on Precedents* Meaning: According to the Black’s Law Dictionary (Fourth Edition, 1891) per incuriam means through inadvertence.The word ‘incuria’ literally means ‘carelessness’. Therefore, it seems to us that constriction or curtailment of personal liberty cannot be justified by a conjectural dialectic. We think it instructive to extract the paragraph 22 from Chandra Prakash in order to underscore that there is a consistent and constant judicial opinion, spanning across decades, on this aspect of jurisprudence:“Almost similar is the view expressed by a recent judgment of a five-Judge Bench of this Court in Parija’s case (supra). Validation of Ratio in Niranjan Singh:16. This Court adhered to the Niranjan Singh dicta (as it was bound to do), viz.
Thus, the Sessions Court acquired jurisdiction to consider the bail application. This ratio of Raghubir Singh was applied once again by the Constitution Bench in .