Law Web: 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

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

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.

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

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:-