Allahabad High Court
Yunis And Anr. vs State Of U.P. on 9 March, 1999
Equivalent citations: 1999CRILJ4094
Author: M.L. Singhal
Bench: M.L. Singhal
ORDER M.L. Singhal, J.
1. The two accused-applicants, namely, Yunis, son of Noora and Haroon, son of Nazir have applied for bail under Sections 147, 148, 149, 302, 429/120-B, I.P.C. and Section 27 of the Indian Arms Act.
2. I have heard the learned Counsel for the accused-applicants, the learned Additional Government Advocate and Shri Ram Shiromani Shukla, learned Counsel for the complainant.
3. The prosecution story as embedded in the F.I.R. is that the deceased Yakeenuddin Qureshi and the co-accused Bhuggal were on an inimical terms, cases in Criminal Courts were pending between the parties. The co-accused Bhuggal and others had made efforts for the arrest of the deceased Yakeenuddin Qureshi, but the High Court had put embargo on the arrest of the deceased; this had been felt by the co-accused Bhuggal and others. On 29-1-1997 one day before the occurrence, the co-accused Bhuggal had told the informant (brother of the deceased) that he had, saved the deceased from the High Court but he. would not be able to save him from the accused. persons. On 30-1-1997 at about 6.30 a.m. the deceased and the informant when came out of, the mosque after offering prayers, the seven accused persons Bhuggal, Haroon, Yunis, son of Noora, Iliyas, Yunis, son of Noor Mohammad and Mohammad were sighted. The co-accused; Bhuggal exhorted and all the seven accused persons armed with revolvers indiscriminately fired on the deceased, resulting in injuries to him. Deceased was taken to hospital, on way he succumbed to the injuries. The F.I.R. was lodged immediately after the occurrence at 7.50 a.m. at Police Station Kotwali, District Mathura.
4. Out of the seven accused persons arrayed in the case, co-accused Mohammad Qureshi by the learned Sessions Judge, co-accused Quayum by Hon'ble Mr, Justice T. P. Garg by order dated 12-1 -1998 and the co-accused Yunis, son of Noor Mohammad by this Court on 3rd February, 1998 have been enlarged on bail. Against the order dated 12th January, 1998 releasing the accused Quayum, the State went in S.L.P. before the Supreme Court, but subsequently the State did not press the petition on the plea that the State intends to move for cancellation of the bail. On the other hand, the bail to the co-accused Iliyas has been disallowed twice by Hon'ble Mr. Justice J.C. Mishra firstly by order dated 18th September, 1997, secondly by order dated 29th May, 1998. The argument of the learned Counsel for the accused-applicants is that on the ground of parity, the accused-applicants are entitled to bail as three other co-accused have already been released on bail earlier. On the other hand the argument of the learned Counsel for the complainant is that, since the bail application of the coaccused Iliyas has been rejected by another Bench of this Court, not only once but twice, the accused-applicants are not entitled to bail. The learned Counsel relied upon the decisions of this Court in Smt. Sita Pati v. State (1996) 20 All Cri R 35; Satyendra Singh v. State of U.P. (1996) 20 All Cri R 867 : 1997 AIHC 1051; and a Division Bench of this Court in Chander alias Chandra v. State of U.P. (1998) 22 All Cri R 356:1998 All LJ 870.
5. In Smt. Sita Pati v. State (supra), this Court has held that the facts of each case differ and even a seemingly insignificant fact may change the entire complexion of the case. If bail is granted or refused in one case it does not have the effect of laying down in law and as such a bail order cannot be cited as precedent. Bail cannot be allowed or refused on the ground that bail has been granted or refused in a similar case, but different case because each case has its own peculiarities and the question of parity does not arise at all. In Satyendra Singh v. State of U.P. (supra), this Court has further held that rule of parity is not applicable in all cases, one Judge may be impressed by a particular point not considering sufficient in law for granting bail. Another Judge is free to take different view and may refuse bail by giving his own reasons. Bail is granted on totality of facts and circumstances. In that case before the Court, two accused had been granted bail by one Hon'ble single Judge, but no reasons were disclosed. The Court held that the applicant was not entitled to bail on ground of parity. In Chander alias Chandra v. State of U.P., 1998 All LJ 870 (supra), a Division Bench of this Court, inter alia held that:
(1) If the order granting bail to an accused is not supported by reasons, the same cannot form the basis for granting bail to a co-accused on the ground of parity.
(2) A Judge is not bound to grant bail to an accused on the ground of parity even where the order granting bail to an identically placed coaccused contains reasons, if the same has been passed in flagrant violation of well-settled principles and ignores to take into consideration the relevant factors essential for granting bail.
(3) A Judge hearing bail application of one accused cannot cancel the bail granted to a co-accused by another Judge on the ground that the same had been granted in flagrant violation of well-settled principles. If he considers it necessary in the interest of justice, he may, after expressing his views, refer the matter to Judge who had granted bail, for appropriate orders.
(4) If it appears that a bail order has been passed in" favour of an accused on the basis of wrong or incorrect documents, it is open to any Judge to initiate action for cancellation of bail.
6. In the present case, the order granting bail to the accused Quayum, is not without reasons, the order passed by Hon'ble Mr. Justice T. P. Garg shows that the several respects of the case have been taken into consideration by the Hon'ble Judge while enlarging the co-accused Quayum on bail. The said order cannot be said to be in flagrant violation of the well-settled principles and relevant factors essentially for granting bail. As indicated above, against the said order the State went in Special Appeal before the Hon'ble Supreme Court and it at later stage withdrew the special appeal. On the basis of the said order, the co-accused Yunis has been enlarged on bail by this very Court earlier in Nanha v. State of U.P., 1993 Cri LJ 938, a Division Bench of this Court earlier has held that where the case of co-accused is identically similar and another co-accused has been granted bail by the Court, the said co-accused is entitled to be released on bail on account of desirability of consistency and equity. As regards the principle of parity in matter of rejection of bail application, it may be observed that law of parity is a desirable rule. In matter of release on bail to the co-accused may be applied where the case of the co-accused is identically similar, but cannot be applied for rejecting the bail application of co-accused. A co-accused cannot be denied bail, merely on the ground that the bail of another accused has been rejected by the Court earlier, the obvious reason being that while the earlier bail order denying bail to another co-accused was passed, the latter co-accused applying for bail was not heard. In Nanha v. State of U.P. (supra) (Para 60), a Division Bench of this Court observed that:
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.
7. Thus the law of parity may be applied in granting bail to a co-accused, but cannot be invoked in rejecting the bail application of another co-accused. The learned Counsel for the complainant relied upon the decision of the Supreme Court in State v. Jaspal Singh, reported in 1984 SCC (Cri) 441 : 1984 Cri LJ 1211. The facts of that case were entirely different, in that case the grant of bail to the accused was held not justified in the larger interest of the State, the accused being guilty of offending the provisions of Official Secrets Act, 1923.
8. Let the accused-applicants Yunis and Haroon, involved in Case Crime; No. 41 of 1997, under Sections 147, 148, 149, 302, 429/120-B, I.P.C. and Section 27 of the Arms Act, P. S. Kotwali, District Mathura be enlarged on bail on their furnishing a personal bond and two sureties each in the like amount to the satisfaction of the Chief Judicial Magistrate concerned.