Tuesday, 28 July 2020

When accused is not entitled to get bail on the ground of parity?

1) In the case of Salim Vs. State of U.P. 2003 ALL. L. J. 625, this Court has held that
parity can not be the sole ground for bail.
Again in the case of Zubair Vs. State of U.P. 2005(52) ACC 205, this Court
observed that there is no absolute hidebound rule that bail must necessarily be granted to
the co-accused, where another co-accused has been granted bail. In view of the aforesaid
discussion, we are of the considered opinion that parity cannot be the sole ground for
granting bail.”
2)  In the present case, the offence committed is of serious nature. It is
double murder, which would inflict severe punishment, in case of the
applicant's conviction. There was indiscriminate firing and the fire arm
injuries were sustained by the deceased Netrapal and Pratap on the vital parts
of the body as per the post mortem report. The witnesses, including the
informant-the injured witness, under Section 161 Cr.P.C. have named the
applicant. There is recovery of fire arm of 315 bore from the possession of the
applicant as per the recovery memo. There are prima facie and reasonable
grounds to believe the complicity of the applicant in the commission of the
offence. The applicant has criminal antecedent. The trial has also commenced
in which PW-1 has been examined. Considering in totality the facts of this case, but without commenting anything on the merits of the case, I do not find

it a fit case for grant of bail to the applicant.

ALLAHABAD HIGH COURT
Delivered on 23.7.2020
Case :- CRIMINAL MISC. BAIL APPLICATION No. - 2554 of 2019
 Gajendra Singh  Vs State of U.P.

Coram:  Hon'ble Ravi Nath Tilhari,J.

1. Sri Kamlendra Singh Jadaun, learned counsel for the first informant
filed an affidavit to which Sri Ajay Kumar Pathak, learned counsel for the
applicant did not propose to file any reply.
2. Heard Sri Manish Tiwary, learned Senior Counsel assisted by Sri Ajay
Kumar Pathak, learned counsel for the applicant, Sri Anoop Trivedi, learned
Senior Counsel assisted by Sri Kamlendra Singh Jadaun, learned counsel for
the informant and Sri R.K. Srivastava, learned Additional Government
Advocate for the State.
3. This bail application has been filed by the applicant Gajendra Singh
for releasing him on bail in Case Crime No.186 of 2018, under Sections 147,
148, 149, 302, 307, 504 and 34 I.P.C., P.S. Hathras Junction, district Hathras.
4. Sri Manish Tiwary, learned Senior Counsel submitted that the F.I.R.
was lodged on 9.6.2018 at 21-45 hours in respect of the alleged incident of
the same day at 20-00 hours. As per the F.I.R., on 9.6.2018 due to animosity
out of the election of Pradhan of the Gram Panchayat, 11 accused persons,
armed with firearms came to the house of the first informant Rajkumar,
started abusing and on protest they opened fire upon the first informant and
his brothers Netra Pal and Pratap, who received fire arm injuries and died
on spot, whereas the first informant was injured. He submitted that the F.I.R.
was lodged with delay, of which there was no plausible explanation. The
Investigating Officer prepared spot inspection report/memo mentioning that
the corpse of deceased persons were found lying on the road, outside the
house of the first informant. Inquest was done on the next day, as for want of
light it could not be done on the same day. Nobody had seen the incident so
as to ascertain as to who opened fire upon the deceased and by which
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weapon. The applicant has not been assigned any particular weapon. The
F.I.R. was lodged against 11 persons but charge sheet was filed against only 4
persons, including the applicant. This belies the prosecution story. As per post
mortem report cause of death is shock and hemorrhage, as a result of ante
mortem firearm injuries, but he submitted that the injuries are of such a nature
which could not be caused by a country-made pistol of 315 bore, recovered
from the possession of the applicant as per the recovery memo. Such injuries
could be caused by SBBL gun or 12 bore pistol, which were recovered from
other accused, namely, Rajan Singh and Ajay Singh.The first and the second
statements of the first informant, recorded under Section 161 Cr.P.C. although
supported the F.I.R. but being false cannot be considered. The scribe of the
F.I.R. Anurag Sisodiya, on being asked as to how the first informant
recognized the accused persons, replied “by voice and light of inverter”,
whereas the inquest could not be done on the same day for want of light and
therefore, the statement of the scribe under Section 161 Cr.P.C. was also not
reliable. Other witnesses Devendra Singh, Hemlata and Himanshu are
interested witnesses, being the family members of the first informant and as
such their statements under Section 161 Cr.P.C. are also not reliable.
5. Learned Senior Counsel Sri Manish Tiwary has submitted that general
allegations have been levelled against the applicant who has been falsely
implicated. The coaccused Harendra from whose possession also recovery of
country made pistol of 315 bore was made has been granted bail by this Court
by order dated 13.12.2018 in Criminal Misc. Bail Application No.43858 of
2018. The applicant is involved in one other Case Crime No.205 of 2017,
under Sections 323, 504, 506 I.P.C., P.S. Hathras Junction, district Hathras, in
which he has been released on bail. The applicant is in jail since 10.6.2018. In
case the applicant is granted bail he will not misuse the liberty of bail and will
cooperate in the trial. He has also informed that the trial has commenced and
one witness PW-1 has been examined.
6. Per contra Sri Anoop Trivedi, learned Senior Counsel submitted that it
is a case of brutal murder in which two persons were killed and one was
severally injured. The accused entered the house of the first informant and
murdered his two brothers by firearms and also injured the informant. The
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applicant is named in the F.I.R. The statements of witnesses under Section 161
Cr.P.C. fully support the prosecution story. The F.I.R. is prompt as the police
station is at a distance of 16 km from the place of the incident. As per the post
mortem report following, so many, ante mortem firearm injuries were found
on the bodies of the deceased Netrapal and Pratap:-
“Ante Mortem Injuries on the body of Netrapali.
Multiple gunshot entry wound,spread over left chest 5 in number one
5 cm above left nipple at 12 o' clock, one 4 cm medial to nipple at 9 o'
clock, two over mediastinum over left side, margins inverted and
blackening seen.
ii. Two entry wounds of gunshot with blackening and inverted margins
at shoulder.
iii. Two entry gunshot wounds with inverted margins and blackening
over left axilla.
iv. Two gunshot entry wound over right thigh at mid anteriolly, margins
inverted blackening seen.
v. Two entry wound of firearm over left groin with blackening and
inverted margins.
vi. Two entry wound of fire arm margin inverted over abdomen at 11 o'
clock and 9 o' clock position with blackening seen.
Ante Mortem Injuries on the body of Pratapi.
Firearm entry wound with blackening seen -forehead at glabella, over
left eyebrow, at left face 3 cm below left eye, at neck at level of thyroid
over left side. Two at base of neck on Lt side 2 at base of neck on Rt
side.
5 wound at Lt side of upper chest long with collar bone one at mid of
collar one just above its mid Lt. Nipple two wound at 6 cm medial to
left nipple at 7 o' clock, 3 cm below left nipple 5 o' clock position, 7 cm
below left nipple at 5 o' clock position at arm 09 cm below shoulder
joint at medial surface, at lateral surface of left arm 13 cm below
shoulder joint, at area of epigastric, on over right side chest 4 cm below
medial end of collar bone, at 6 cm below medial end of collar bone
over right chest, 16 cm below medial end of collar bone, over right side
of chest. Three wound along the parietal to collar bone of right side 8
cm below it a shoulder right side, one over right side of chest 4 cm
below nipple at 5 o'clock, one 7 cm below nipple at 7 o'clock position
over cubital fossa right arm at medial end of right wrist at right thigh at
lateral surfaced. The wound left illaic create over, medical aspect of
thigh(L) on would lateral aspect of left thigh.
Lacerated wound 3 cm x 0.5 cm at mid of right arm blackening present
at mid lateral surface.
Lacerated wound over right chest 2 cm above nipple blackening seen.
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Cause of death as a result of shock and hemorrhage due to ante mortem
fire arm injuries.”
7. Sri Trivedi further submitted that the informant also received firearm
injuries. As per x ray report metallic density shadow of pellet has been seen
in different part of body of the first informant. Country made pistol of 315
bore was recovered from the applicant and it is a matter of trial that firearm
injuries were caused by which firearm. The applicant has criminal history. He
is involved in Case Crime No.205 of 2017 under Sections 323, 504, 506
I.P.C.P.S. Hathras Junction, district Hathras and the NCR dated 23.02.2019 is
also lodged under Sections 504 and 506 I.P.C. against the applicant.
8. Sri Anoop Trivedi, learned Senior Counsel has submitted that on
relevant considerations for granting bail, the applicant is not entitled for bail.
So far as bail granted to coaccused Harendra by this Court is concerned, he
submitted that the first informant has filed Special Leave Petition (Criminal)
Diary No.2551/2019 (Raj Kumar vs. Haredra and another) in which
Hon'ble Supreme Court has granted permission to file S.L.P., by order dated
1.2.2020, (Annexure-2 to the affidavit of informant). He has submitted that
parity cannot be the sole ground for granting bail. Besides,distinguishing
feature is also that the present applicant has criminal history and trial has also
commenced.
9. He has placed reliance upon the judgment of Hon'ble Supreme Court in
the case of Union of India and others vs. West Coast Paper Mills Ltd.,
reported (2004) 2 SCC 747 , Mauji Ram vs. State of U.P. and another
reported in (2019) 8 SCC 17, Rakesh Kumar Pandey vs. Munni Singh @
Mata Bux Singh & Anr., (SLP(Crl) No. 4059/2000 decided on 12.3.2001)
and in the case of Ramesh and others vs.State of U.P. (Criminal Appeal
No.528 of 1998 in Criminal Misc. Application No.4581 of 2005(B) of
Vishram) decided on 1.1.2010 by the Division Bench of this Court.
10. In reply, Sri Manish Tiwary, learned Senior Counsel submitted that
even if the matter of the coaccused Harendra is in jeopardy before the Hon'ble
Supreme Court, the applicant is entitled for bail on parity. He has placed
reliance upon the case of Khoday Distilleries Limited (now known as
Khoday India Limited) and others vs. Sri Mahadeshwara Sahakara
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Sakkare Karkhane Limited, Kollegal (under Liquidation) represented by
the Liquidator, (2019)4 SCC 376.
11. Learned A.G.A. has adopted the arguments advanced by the learned
Senior Counsel Sri Anoop Trivedi. He has opposed grant of bail to the
applicant and submitted that considering the facts and circumstances of the
case, the applicant is not entitled for grant of bail.
12. I have considered the submission advanced by the learned counsel for
the parties and have perused the material on record.
13. In the case of Rakesh Kumar Pandey (supra) the Hon'ble Apex Court
strongly denounced the order of the High Court granting bail to the coaccused
on the ground of parity in a heinous offence. It is relevant to quote the
following paragraphs from the judgment of Hon'ble Supreme Court in the case
of Rakesh Kumar Pandey(supra):-
"The High Court on being moved, has considered the application for bail and without
bearing in mind the relevant materials on record as well as the gravity of offence released
the accused-respondents on bail, since the co-accused, who had been ascribed similar role,
had been granted bail earlier."
.. .. ..
"Suffice it to say that for a serious charge where three murders have been committed in
broad day light, the High Court has not applied its mind to the relevant materials, and
merely because some of the co-accused, whom similar role has been ascribed, have been
released on bail earlier, have granted bail to the present accused respondents. It is true that
State normally should have moved this Court against the order in question, but at the same
time the power of this Court cannot be fettered merely because the State has not moved,
particularly in a case like this, where our conscience is totally shocked to see the manner in
which the High Court has exercised its power for release on bail of the accused
respondents. We are not expressing any opinion on the merits of the matter as it may
prejudice the accused in trial. But we have no doubt in our mind that the impugned order
passed by the High Court suffers from gross illegality and is an order on total nonapplication
of mind and the judgement of this Court referred to earlier analysing the
provisions of sub-section (2) of section 439 cannot be of any use as we are not exercising
power under sub-section (2) of section 439 Cr.P.C."
14. In the case of Ramesh and others(supra), the Division Bench of this
Court held that parity cannot be the sole ground for granting bail. It is relevant
to reproduce relevant part of the case of Ramesh and others(supra), the
Division Bench of this Court has held as under:-
“In para 17 in the case of Chander @ Chandra Vs. State of U.P. (1998 U.P. Cr.R. 263), it
was held that:-
"The grant of bail is not a mechanical act and principle of consistency cannot be
extended to repeating a wrong order. If the order granting bail to an identically
placed co-accused has been passed in flagrant violation of well settled principle, it
will be open to the Judge to reject the bail application of the applicant before him
as no Judge is obliged to pass orders against his conscience merely to maintain
consistency."
In Special Leave Petition No. 4059 of 2000: Rakesh Kumar Pandey Vs. Munni
Singh @ Mata Bux Singh and another, decided on 12.3.2001, the Hon'ble Apex Court
strongly denounced the order of the High Court granting bail to the co-accused on the
ground of parity in a heinous offence and while cancelling the bail granted by the High
Court it observed that:-
"The High Court on being moved, has considered the application for bail and
without bearing in mind the relevant materials on record as well as the gravity of
offence released the accused-respondents on bail, since the co-accused, who had
been ascribed similar role, had been granted bail earlier."
The Apex Court in the aforesaid case has further observed:-
"Suffice it to say that for a serious charge where three murders have been committed in
broad day light, the High Court has not applied its mind to the relevant materials, and
merely because some of the co-accused, whom similar role has been ascribed, have been
released on bail earlier, have granted bail to the present accused respondents. It is true that
State normally should have moved this Court against the order in question, but at the same
time the power of this Court cannot be fettered merely because the State has not moved,
particularly in a case like this, where our conscience is totally shocked to see the manner in
which the High Court has exercised its power for release on bail of the accused
respondents. We are not expressing any opinion on the merits of the matter as it may
prejudice the accused in trial. But we have no doubt in our mind that the impugned order
passed by the High Court suffers from gross illegality and is an order on total nonapplication
of mind and the judgement of this Court referred to earlier analysing the
provisions of sub-section (2) of section 439 cannot be of any use as we are not exercising
power under sub-section (2) of section 439 Cr.P.C."
In the case of Salim Vs. State of U.P. 2003 ALL. L. J. 625, this Court has held that
parity can not be the sole ground for bail.
Again in the case of Zubair Vs. State of U.P. 2005(52) ACC 205, this Court
observed that there is no absolute hidebound rule that bail must necessarily be granted to
the co-accused, where another co-accused has been granted bail. In view of the aforesaid
discussion, we are of the considered opinion that parity cannot be the sole ground for
granting bail.”
15. In the case of Mauji Ram (supra) Hon'ble Supreme Court has held that
it must appear from perusal of the order that the Court has applied its mind to
the relevant facts in the light of material filed by the prosecution at the time
of consideration of bail application. Paragraph 13 of the judgment in Mauji
Ram (supra) is being reproduced as under:-
“13. Time and again this Court has emphasized the need for assigning the reasons
while granting bail (see Ajay Kumar Sharma vs. State of U.P. & Ors., (2005) 7 SCC 507,
Lokesh Singh vs. State of U.P. & Anr., (2008) 16 SCC 753 & Dataram Singh vs. State of
U.P. & Anr., (2018) 3 SCC 22). Though it may not be necessary to give categorical finding
while granting or rejecting the bail for want of full evidence adduced by the prosecution as
also by the defence at that stage yet it must appear from a perusal of the order that the
Court has applied its mind to the relevant facts in the light of the material filed by the
prosecution at the time of consideration of bail application. It is unfortunate that neither
the law laid down by this Court, nor the material filed by the prosecution was taken note of
by the High Court while considering the grant of bail to the respondents.
16. I, therefore, proceed to consider the bail application of the applicant on
its own merits.
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17. In the case of Lt. Col. Prasad Shrikant Purohit vs. State of
Maharashtra, (2018)11 SCC 458, the Hon'ble Supreme Court has held that
the law in regard to grant or refusal of bail is very well settled. The Court
granting bail should exercise its discretion in a judicious manner and not as a
matter of course. Though at the stage of granting bail a detailed examination
of evidence and elaborate documentation of the merit of the case need not be
undertaken, there is a need to indicate in such orders reasons for prima facie
concluding why bail was being granted, particularly, where the accused is
charged of having committed a serious offence. Any order devoid of such
reasons would suffer from non-application of mind. It is also necessary to
consider the factors such as; a) the nature of accusation and the severity of
punishment in case of conviction and the nature of supporting evidence, b)
reasonable apprehension of tampering with the witness or apprehension of
threat to the complainant and c) prima facie satisfaction of the court in support
of the charge.
the Hon'ble Supreme Court laid down the following relevant consideration
while granting bail, in paragraph 17 which is being reproduced as under:-
“While granting bail, the relevant considerations are:- (i) nature of seriousness of the
offence; (ii) character of the evidence and circumstances which are peculiar to the accused;
and (iii) likelihood of the accused fleeing from justice; (iv) the impact that his release may
make on the prosecution witnesses, its impact on the society; and (v) likelihood of his
tampering. No doubt, this list is not exhaustive. There are no hard and fast rules regarding
grant or refusal of bail, each case has to be considered on its own merits. The matter always
calls for judicious exercise of discretion by the Court.”
19. In the present case, the offence committed is of serious nature. It is
double murder, which would inflict severe punishment, in case of the
applicant's conviction. There was indiscriminate firing and the fire arm
injuries were sustained by the deceased Netrapal and Pratap on the vital parts
of the body as per the post mortem report. The witnesses, including the
informant-the injured witness, under Section 161 Cr.P.C. have named the
applicant. There is recovery of fire arm of 315 bore from the possession of the
applicant as per the recovery memo. There are prima facie and reasonable
grounds to believe the complicity of the applicant in the commission of the
offence. The applicant has criminal antecedent. The trial has also commenced
in which PW-1 has been examined. Considering in totality the facts of this case, but without commenting anything on the merits of the case, I do not find
it a fit case for grant of bail to the applicant.
20. The case of West Coast Paper Mills Ltd. and Anr.(supra), upon which
reliance has been placed by Sri Trivedi, learned Senior Advocate, to submit
that once appeal is listed before the Hon'ble Supreme Court and the same is
entertained, the judgment of the High court or the Tribunal is in jeopardy and
the subject matter of the lis unless determined by the last Court cannot be said
to have attained finality, is not on the point of grant of bail or on the point of
parity, i.e. the coaccused can or cannot be granted bail on parity.
21. Similarly, the case of Khoday Distilleries Limited (now known as
Khoday India Limited) and others vs. Sri Mahadeshwara Sahakara
Sakkare Karkhane Limited, Kollegal (under Liquidation) represented by
the Liquidator, (2019)4 SCC 376, upon which reliance has been placed by
Sri Manish Tiwary, learned Senior Advocate, to contend that in spite of a
petition for special leave to appeal having been filed, the judgment, decree or
order against which leave to appeal has been sought for, continues to be final,
effective and binding as between the parties, is also not on the point of grant
of bail on the ground of parity. The principle as laid down in Khoday
Distilleries case shall apply between the parties.
22. A perusal of the order granting bail to Harendra, the coaccused shows
that the applicant therein had no criminal antecedent. The present applicant
has criminal antecedent.
23. Thus considered, the bail application of the applicant Gajendra Singh is
hereby rejected.
Order Date:23.7.2020

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