Allahabad High Court
Thaan Singh vs State Of U.P. on 14 November, 2022
Author: Samit Gopal
Bench: Samit Gopal
HIGH COURT OF JUDICATURE AT ALLAHABAD ?Court No. - 66 Case :- CRIMINAL MISC. BAIL APPLICATION No. - 19469 of 2021 Applicant :- Thaan Singh Opposite Party :- State of U.P. Counsel for Applicant :- Pankaj Kumar Shukla,Ajay Kumar Pathak Counsel for Opposite Party :- G.A. Hon'ble Samit Gopal,J.
List revised.
Heard Sri Pankaj Kumar Shukla, Sri Ajay Kumar Pathak, learned counsels for the applicant, Sri Ankit Srivastava, learned counsel for the State and perused the material on record.
This is the second bail application under Section 439 of Code of Criminal Procedure filed by the applicant Thaan Singh, seeking enlargement on bail during trial in connection with Case Crime No. 179 of 2019, under Sections 147, 307, 504, 506, 306 I.P.C., registered at P.S. Surir, District- Mathura.
The first bail application of the applicant was rejected by this Court vide order dated 8.7.2020 passed in Criminal Misc. Bail Application No. 18674 of 2020 (Thaan Singh vs. State of U.P.).
Learned counsel for the applicant argued that although it is second bail application of the applicant before this Court but the fresh and new ground is that co-accused Mohan Shyam has been granted bail by a co-ordinate Bench of this Court vide order dated 19.1.2021 passed in Criminal Misc. Bail Application No. 46273 of 2020, copy of the said bail order has been annexed as annexure no. 2 to the affidavit in support of bail application. It is further argued that other co-accused Shibbo@Shimmo, Bablu and Satyapal have been granted bail by co-ordinate Benches of this Court vide order dated 8.11.2021 passed in Criminal Misc. Bail Application No. 17437 of 2021, vide order dated 3.12.2021 passed in Criminal Misc. Bail Application No. 24309 of 2021 and vide order dated 25.3.2022 passed in Criminal Misc. Bail Application No. 4627 of 2022 respectively. Copies of the said bail orders have been collectively annexed as annexure no. S.A.-2 to the supplementary affidavit dated 09.9.2022. It is argued that as such case of the applicant is identical to that of the co-accused who have been granted bail and the applicant also deserves to be released on bail. Further while placing para-19 of the affidavit it is argued that the applicant is an old infirm person aged about 66 years. The applicant is in jail since 7.9.2019.
Per contra, learned A.G.A. opposed the prayer for bail and argued that the first bail application of the applicant was rejected on merits by a detailed order by this Court. It is argued that the applicant is named in the dying declaration of one of the deceased Jogendra Singh. It is further argued that case of the applicant is clinching as he is named in the dying declaration of one of the deceased Jogendra Singh and the present case is a case in which two persons have lost their lives being Jogendra Singh and his wife Smt. Chandrawati Devi.
After having heard learned counsels for the parties and perusing the record, it is evident that the first bail application of the applicant was rejected by this Court on merits, the said order reads as under :-
"Heard Sri Pankaj Kumar Shukla, learned counsel for the applicant, Sri Raj Kamal, learned A.G.A. and perused the material on record.
This bail application under Section 439 of Code of Criminal Procedure has been filed by the applicant Thaan Singh seeking enlargement on bail during trial in connection with Case Crime No. 179 of 2019, under Sections 147, 307, 504, 506, 306 IPC, registered at P.S. Surir, District Mathura.
Learned counsel for the applicant argued that the applicant has been falsely implicated in the present case. He further argued on the strength of dying declaration of one of the deceased Jogendra Singh, copy of which is annexed as annexure no. 4 to the affidavit, that name of the applicant appears in the same but without any overt act or direct implication. He further argued that in the present matter the dispute between the applicant and Babloo is with regard to some landed property and with Satpal for outraging modesty of Smt. Chandrawati Devi, the wife of the deceased Jogendra Singh, for which they tried to lodge F.I.R. but which was not registered as a result of which they went to the police station and outside the police station set themselves on fire and committed suicide.
It is next argued that the first information report has been lodged belatedly implicating the applicant with totally false and incorrect allegations. It is further argued on the strength of para-19 of the affidavit that the applicant is a senior citizen and is not involved in any other criminal case. It is argued that he is in jail since 07.9.2019 in a case in which he has been falsely implicated. Further it is argued that essential ingredients of Section 306 I.P.C. are lacking in the present case.
Per contra, learned AGA vehemently opposed the prayer for bail and argued that the applicant is named in the F.I.R. and there are specific allegations against him and other co-accused persons. It is further argued that even the post mortem examination report shows that both the deceased died as a result of burn injuries. It is next argued that the present case is one in which two persons have lost their lives who are Jogendra Singh and his wife Smt. Chandrawati Devi and there is no reason coming henceforth for false implication of the applicant.
After having heard learned counsel for the parties and perusing the record it appears that it is a case in which two persons have lost their lives and the applicant is named in the F.I.R., I do not find it to be a fit case to release the applicant on bail.
The bail application is, accordingly, rejected."
In so far as the ground of parity is concerned, this Court in the case of Pintu Singh Vs. State of U.P., vide order dated 8.2.2021 passed in Criminal Misc. Bail Application No.- 33268 of 2020 has observed in para-7 to 11 thus:-
"7. 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 non-application of mind and the judgement of this Court referred to earlier analyzing 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."
8. 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, 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."
9. 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.
10. 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."
11. In the case of Mauji Ram vs. State of U.P. and another reported in (2019) 8 SCC 17, Hon'ble Apex 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."
After having heard learned counsels for the parties and looking to the order dated 8.7.2020 passed in the first bail application of the applicant, the law with regards to parity, the fact that parity is not binding on this Court, the role assigned to the applicant, and the facts and circumstances of the case, I do not find it a fit case for bail, hence, the bail application is rejected.
(Samit Gopal,J.) Order Date :- 14.11.2022 Naresh