TMI Blog1992 (9) TMI 368X X X X Extracts X X X X X X X X Extracts X X X X ..... No. 1865 of 1991 for bail. This application was rejected by Hon'ble V.N. Mehrotra, J. Nanha also moved first bail application which was rejected on 7-12-1991. The second application moved by Khursheed, Dildar and Nanha were rejected. Khusheed was granted bail on the ground of age in the third attempt. 3. In the third bail application moved on behalf of Dildar, bail was granted by Hon'ble V.N. Mehrotra, J. Thereafter, Iqbal Husain Khan was also granted bail by Hon'ble B.P. Singh, J.A. Prayer was made that the applicant be also granted bail on the ground of parity. The Hon'ble single Judge referred to two judgments of this Court, namely, Shobharamv. State of U.P. 1992(29) All Crl. Cases 59 and Sayed Khan v. State of U.P. 1990 All Crl. Cases 1908. The Hon'ble Judge is of the view that the aforesaid two decisions are taking contrary view about parity in granting of bail and this matter should be set up at rest by a pronouncement of a larger Bench. 4. We have heard the learned counsel for the applicant and the learned A.G.A. 5. It was argued by learned counsel for the applicant that formerly this Court had been granting bail on the ground of parity. In this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f Hon'ble K.K. Chaubey, J. in Sayed Khan v. State of U.P. 1990 All Crl. Cases 98 does not lay down the correct law. It was urged that it is not at all obligatory upon an accused applicant to state in his application that the application of a co-accused has been rejected previously. He is only liable to disclose all the facts relating to his case as to why he should be enlarged on bail. He cannot be saddled with any other responsibility nor can be punished for not disclosing the facts of rejection. 10. In Sayed Khan's case the case of Ashok Kumar v. State of Punjab, AIR 1977 SC 109 : (1977 Cri LJ 164) has been referred. In this case, appellant Ashok Kumar and his two brothers Kewal Krishna and Dharam Pal were charged before the Sessions Judge for the offence of intentionally causing the death of one Dharam Pal. On trial the Sessions Judge accepted the prosecution case and convicted Ashok Kumar under Section 302, IPC. Dharam Pal and Kewal Krishna were, however, convicted and sentenced to ten years rigorous imprisonment and a fine of ₹ 1,000/- under Section 326 read with Section 34, IPC. Kewal Krishna and Dharampal were further convicted and sentenced to two years R.I ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ion 326 read with Section 34 instead of Section 302, read with Section 34. 11. The case of Ashok Kurnar is a peculiar case. The observations of the Supreme Court cannot be applied to bail matters. Mostly at the time of consideration of bail the trial has not started and even investigations are not over. In several cases, the Supreme Court has laid down the broad consideration which should weigh with the Court, while granting bail. In Mohan Singh v. Union Territory, AIR 1978 SC 1095 : (1978 Cri LJ 844) itself the Supreme Court has observed that refusal of bail is not an indirect process of punishing an accused person before he is convicted. 'This is a confusion regarding rationale of bail', the Supreme Court remarked. In this case the Supreme Court had referred to Gurcharan Singh v. State (Delhi Administration) AIR 1978 SC 179: (1978 Cri LJ 129), where it has explained the rationale of bail. After discussing the scope of Section 437 and 439 of Cr. P.C. the Supreme Court observed (at pages 135 136): S. 439(1), Cr. P.C. of the New Code, on the other hand, confers special powers on the High Court or the Court of Sessions in respect of bail. Unlike under Section 439(1) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aid judgment:-- The claims of the principle of consistency and demand for parity by the accused, however, are not compelling one's and one cannot override the judges contrary view on the case before him if even awareness of the desirability of consistency fails to move his view. In other words this is only a factor to be considered and not a governing consideration. This is clear from the Supreme Court decision in Ashok Kumar's case (supra) also where the court declined to follow the principle in the matter of sentence. 14. Before proceeding about the desirability of parity in the matter of granting bail it would be better to draw our attention to the exact meaning of parity. In Chambers English Hindi Dictionary 1981 the word parity has been stated to mean 'twai', 'sTHspft'. 'WTPTHT', '^MCII', 'a^^Mai', 'w*r, '^rr^w and 'WT ^MflT1. In New Lexicon Webster's Dictionary 1987 Edition, the word parity has been stated to mean 'equality in status', 'values' etc. 15. In 'Shorter Oxford English Dicton-ary' 1936 'parity' has been stated to mean, 'The state or condition of being ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... for Captain Jagjit Singh that as the two co-accused had been released, then the High Court was right in releasing Captain Jagjit Singh also on the ground of parity. The Supreme Court had considered the case of Jagjit Singh and after coming to the conclusion that his case stood on a different footing even though he was a member of conspiracy, a great responsibility lay upon him in the matter of divulgence of official secrets. The Supreme Court had cancelled the bail granted by the High Court. 20. Both A.G.A. and learned Counsel for the applicant have relied upon Sunder Lal v. State of U.P. 1983 AWC 148 : (1983 Cri LJ 736). In this case, the facts were that a report was lodged by one Sant Ram against five persons including one Sunder Lal. The Investigating Officer submitted charge-sheet and thereafter the Judicial Magistrate committed the applicant along with others to the Sessions Judge. The applicant Sunder Lal was in jail at the time the case was committed to the court of session. In pursuance of the committal order a custody warrant was issued against the applicant. In this case, the detention order of the applicant had challenged as being illegal. In the end, it was also arg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on. I have stated the above norms even at the risk of repetition even though they have been quoted earlier. 24. My answer to the points referred to us is that parity cannot be the sole ground for granting bail even at the stage of second or third or subsequent bail applications when the bail applications of the co-accused whose bail application had been earlier rejected are allowed and co-accused is released on bail. Even then the court has to satisfy itself that, on consideration of more materials placed, further developments in the investigations or otherwise and other different considerations, there are sufficient grounds for releasing the ' applicant on bail. If on examination of a given case, it transpires that the case of the applicant before the court is identically similar to the accused on facts and circumstances who has been bailed out, then the desirability of consistency will require that such an accused should be also released on bail. As regards the second part of the referred question my answer is that it is not at all necessary for an accused to state in his application that the application of a co-accused had been rejected previously. 25. The record of th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er dated 23-4-1992 in Criminal Misc. Bail Application No. 13613 of 1992. 30. The order passed by Mr. Justice B.P. Singh reads thus:-- Heard. Co-accused Dildar Khan was granted bail on 31st March 1992. The case of the applicant appears to be similar. Let the applicant Iqbal Hussain Khan involved in crime No. 355 of 1989 under Section 302, I.P.C., P.S. Ganj, Rampur be released on bail provided he furnishes a personal bond and sureties to the satisfaction of C.J.M., Rampur. 31. The applicant Nanha's first bail application being Criminal Misc. Bail Application No. 6013 of 1991 was rejected on 6-5-1991 by Hon'ble Mr. Justice N. L. Ganguly. His second bail application, being Criminal Misc. Bail Application No. 11017 of 1991, was again rejected by the same Hon'ble Judge on 9-12-1991. 32. After grant of bail to co-accused Dildar Khan and Iqbal Hussain Khan by the two Hon'ble Judges Nahna again filed a third bail application and it was urged that on the ground of parity Nanha should also be granted bail. 33. The bail application came up before Hon'ble Mr. Justice N. L. Ganguly who has referred the case to a larger Bench to decide the question which ha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which states:-- The whole conception of unfettered dis-cretion is inappropriate to a public authority which possesses power solely in order that it may use them for the public good. 41. The Supreme Court went on to say that this principle applies not only to executive functions but also to judicial functions. 42. The High Court also performs sovereign functions and cannot discriminate with persons similarly situated. 43. In a democracy the judiciary, like any other State organ, is under scrutiny of the public and rightly so because the people are the ultimate masters of the country and all State organs are meant to serve the people. Hence the people will feel disappointed and dismayed if courts give contrary decisions of the same facts. 44. In this connection a reference may be made to the decision of the Supreme Court in Beer Bajranj Kumar v. State of Bihar, AIR 1987 SC 1345 in which the Supreme Court had set aside the order of the Patna High Court, dismissing the writ petition when on identical facts another writ petition had earlier been admitted. The same view was expressed in another case of Sushil Chandra Pandey v. New Victoria Mills, 1982 UPLBEC 211. These d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lso to create confidence in the minds of the public. Hence for the sake of uniformity and non-discrimination it is essential that uniform orders should be passed even in bail matters in case of persons who stand on the same footing. If the contrary course is adopted the public will loose confidence in the administration of justice. 50. In his judgment K.K. Chaubey, J. has placed reliance on the case of Ashok Kumar v. State of Punjab, AIR 1977 SC 109 : (W77 Cri LJ 164) in Ashok Kumar's case, Ashok Kumar along with Dharmpal and Kewal Krishna were prosecuted for murder and all of them were assigned the role of causing knife injuries. The Sessions Judge convicted and sentenced Ashok Kumar under Section 302/34, I.P.C. to Imprisonment for Life while the other two were convicted and sentenced under Section 326/34, I. P. C. to ten years' R. I. On appeal the High Court dismissed the appeal of Ashok Kumar, Kewal Krishna's sentence under Section 326/34, I.P.C. was reduced from ten years' to two years' R.I. and Dharmpal was acquitted. The Supreme Court was of the view that all the three accused had shared common intention to commit murder punishable under Section 302/34, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ges of evolution of our Constitutional Law Article 14 came to be identified with the doctrine of classification... In Royappa v. State of Tamil Nadu this Court laid bare a new dimension of Article 14 and pointed out that article has highly activist magnitude and it embodies a guarantee against arbitrariness. 52. Even though Article 14 may not apply to judicial pronouncements it would be highly illogical to canvass that the courts of law would insist that the legislature and executive should pursue the path of equality as envisaged under Article 14 but themselves pass orders creating inequality. 53. There are large number of cases of this Court in which the question of parity in the matters of bail has been considered earlier and the weight of judicial authority is in favour of the principle of parity being followed. In the case of Hadi v. State, 1986 Allahabad Criminal Cases 390 Hon'ble Parmeshwari Dayal, J. bailed out the accused on the ground that co-accused had been bailed out earlier. In another case of Sanwal Das Gupta v. State of U.P., 1986 Allahabad Criminal Cases 79, D.N. Jha, J. observed that where bail was granted to a co-accused then even the Magistrate can ad ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nguishable. The Supreme Court made the following observation at p. 217: It is true that two of the persons who were prosecuted along with the respondent were released on bail prior to the commitment order, but the case of the respondent is obviously distinguishable from their case inasmuch as the prosecution case is that it is respondent who is in touch with the foreign agency and not the other two persons prosecuted along with him. 56. A Full Bench decision of this Court in the case of Sunder Lai v. State, 1983 A. W.C. 148 : (1983 Cri LJ 736) was also cited at the Bar. In this case the question referred to the larger Bench was regarding the illegality of remand orders under Sections. 167, 209, 309 of the Criminal P. C. the Full Bench came to the conclusion that there was no infirmity in the orders of remand and hence on that ground bail could not be granted. In the Full Bench case the question of equality in the matter of granting bail had neither been raised nor adjudicated upon. It appears that at the fag end of the argument the learned Counsel had prayed that bail may be granted to the applicant in that case because other co-accused had been admitted to bail. The Full B ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... grant bail automatically. There may be case which may require an exception; where a judge may not simply take a different view from the judge who granted bail earlier to a co-accused but where the conscience of the judge revolts in granting bail. In such a situation the judge may choose to depart from the rule recording his reasons. However, such cases would be very few. 60. As regards the second part of the referred question whether it is duty of the co-accused to disclose in his bail application the fact that on an earlier occasion the bail application of another co-accused in the same case has been rejected. The prior rejection of the bail application of one of the accused cannot preclude the court from granting bail to another accused whose case has not been considered at the earlier occasion. The accused who comes up with the prayer for bail and who had no opportunity of being heard or placing material before the court at the time when the bail of another accused was heard and rejected, cannot be prejudiced in any other manner by such rejection. Hence it is not necessary for the accused to disclose in his application that the bail has already been refused to another accuse ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
