Single Judge Can Depart From Own Earlier View If It Ignored Binding Precedent Or Statutory Provisions: Kerala High Court

The Court was hearing a batch of pre-arrest bail applications arising from multiple criminal cases registered in Malappuram and Kozhikode districts involving allegations of illegal transportation and removal of river sand in violation of the Kerala Protection of River Banks and Regulation of Removal of Sand Act, 2001 (Sand Act), as well as offences under the Bharatiya Nyaya Sanhita, 2023 (BNS).

A Bench comprising Justice Kausar Edappagath observed: “This Court is convinced that a mistake was made in the aforementioned order in Mohammed Noufal (supra). However, realising a mistake afterwards does not allow this Court to deviate from the binding precedents mentioned above, and usually a reference to the Division Bench would have been necessary. But in this case, the said prohibition does not apply since relevant provisions (Section 22 of the Sand Act and Section 26 of the General Clauses Act) and the binding precedent of the Supreme Court and of this Court on the point (Sanjay, Sayyed Hassan, Kanwar Pal Singh, Jayant, Sujith and Shihad) were neither noticed nor considered by this Court, which permits this Court to differ from its earlier view [See Joby v. District Collector, 2017 (1) KLT 183]”.

Background

The central issue before the Court was whether the offence of theft under Sections 303(2) or 305(e) of the Bharatiya Nyaya Sanhita could be invoked for illegal removal or transportation of river sand when the same conduct is also punishable under Sections 20 and 23 of the Sand Act.

Counsel for the applicants argued that the Sand Act is a special statute governing the regulation and removal of river sand and that prosecution under the general penal provisions of the BNS for theft was therefore impermissible. Reliance was placed on earlier orders of the Kerala High Court, including Mohammed Noufal v. State of Kerala, which had held that when a special law governs the subject matter, the offence of theft under the penal law would not be attracted.

The State, on the other hand, contended that those earlier decisions were rendered without noticing relevant statutory provisions and binding precedents of the Supreme Court. It was argued that Section 22 of the Sand Act expressly permits prosecution under other laws and that offences under the Sand Act and the penal law are distinct.

Court’s Observation

The Court examined the scheme of the Sand Act and noted that the legislation was enacted to protect riverbanks and riverbeds from large-scale dredging of sand, regulate its removal and preserve environmental balance. While Sections 20 and 23 of the Act prescribe penalties for contravention of its provisions, Section 22 expressly states that nothing in the Act shall prevent prosecution under any other law for acts made punishable under the statute.

Referring to Section 26 of the General Clauses Act, 1897, the Court observed that where a single act constitutes offences under two different enactments, prosecution under both statutes is permissible provided the offender is not punished twice for the same offence. The Court relied on several Supreme Court decisions, including State (NCT of Delhi) v. Sanjay, Kanwar Pal Singh v. State of Uttar Pradesh, Jayant v. State of Madhya Pradesh, and State of Maharashtra v. Sayyed Hassan Sayyed Subhan, which held that offences under special statutes and those under general penal laws may coexist if their ingredients are distinct.

Applying these principles, the Court held that the offences under Sections 20 and 23 of the Sand Act are distinct from the offence of theft under the BNS. While the Sand Act penalises the removal or transportation of sand in violation of statutory regulation, the offence of theft under the BNS is attracted when sand belonging to the Government or local authority is dishonestly removed from its possession without consent.

The Court then addressed the precedential value of the earlier judgment in Mohammed Noufal, which had held that the offence of theft would not apply where the Sand Act covered the subject matter. The Bench observed that the earlier judgment had been rendered without noticing Section 22 of the Sand Act, Section 26 of the General Clauses Act and binding Supreme Court precedents on the issue.

The Court explained that a decision rendered in ignorance of binding precedent or relevant statutory provisions is considered per incuriam and therefore lacks binding force. Emphasising judicial responsibility to correct such errors, the Court observed that “to persist with an error is not virtuous; correcting it is a duty of judicial integrity.” It added that when a Single Judge renders a judgment without recognising binding precedent and relevant statutory provisions, the same Judge is justified in subsequently departing from that earlier view.

The Bench further elaborated: “To persist with an error is not virtuous; correcting it is a duty of judicial integrity. The strength of a Judge lies not in the claim of infallibility, but in the courage to admit error and the humility to correct it when conscience and law reveal a truer course. Therefore, when a Single Judge renders a judgment without recognising a binding precedent and relevant statutory provisions, the same Judge is justified in subsequently differing from that earlier view. For these reasons, I am persuaded by my judicial conscience to differ from my earlier view”.

Accordingly, the Court held that the earlier orders in Mohammed Noufal, Mohammed Salih, and Sirajudheen were per incuriam and need not be followed. It clarified that a person may be prosecuted for illegal removal or transportation of river sand under the provisions of the Sand Act as well as for theft under Sections 303(2) or 305(e) of the Bharatiya Nyaya Sanhita if the ingredients of both offences are satisfied.

Conclusion

The High Court concluded that prosecution for theft under the Bharatiya Nyaya Sanhita in cases involving illegal removal or transportation of river sand is legally permissible in addition to prosecution under the Sand Act.

The Court then proceeded to consider the individual bail applications. Pre-arrest bail was granted in several cases where the Court found custodial interrogation unnecessary and the investigation substantially complete, while bail was refused in certain cases involving serious allegations, active participation in the illegal transport of sand, or criminal antecedents.

Cause Title: Vineesh v. State of Kerala (Neutral Citation: 2026:KER:20618)

Appearances

Petitioners: Advocates P Samsudin, Jasneed Jamal, Lira AB, Devika ED, Amisha Rajesh & Others

Respondents: M.C. Ashi, Senior Public Prosecutor; K.A. Noushad, Senior Public Prosecutor.

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