Allahabad High Court
Ram Singh vs State Of U.P. And 3 Others on 23 February, 2023
Author: Sanjay Kumar Singh
Bench: Sanjay Kumar Singh
HIGH COURT OF JUDICATURE AT ALLAHABAD
Court No. 76
AFR
IN THE HIGH COURT OF JUDICATURE AT ALLAHABAD
CRIMINAL MISC. BAIL APPLICATION NO. 52424 of 2022
Ram Singh .......................................................Applicant
Through: Shri Upendra Kumar singh
Versus
State of U.P. and others ................. ....Opposite parties
Through: Shri Rabindra Kumar Singh, AGA for (State)
Shri Shekhar Gangal for Informant
Index
Contents Page Nos.
Facts of the case.....................................................02-03
Submissions on behalf of accused-applicant...............03-04
Submissions on behalf of State and informant............04-05
Settled principles for considering bail prayer...............05-18
Factual analysis of case ...........................................18-21
Discussion about issue of parity................................21-28
Analysis about Article 14 of the Constitution..............28-28
Conclusion..............................................................29-30
Result ....................................................................30
CORAM : Hon'ble Sanjay Kumar Singh, J.
ORDER
1. Heard Shri Upendra Kumar Singh, learned counsel for the applicant, Shri Rabindra Kumar Singh, learned Additional Government Advocate and Mr. Shamsher Singh, learned counsel, who is appearing on behalf of Mr. Shekhar Gangal, learned counsel for the first informant.
2. By means of this application under Section 439 of Cr.P.C., applicant-Ram Singh, who is involved in Case Crime No. 332 of 2021, under Sections 147, 148, 323, 452, 504, 506, 304, 354(Ka) IPC and Sections 7/8 POCSO Act, Police Station Harduaganj, District Aligarh, seeks enlargement on bail during the pendency of trial.
Facts of the case
3. As per prosecution case, in brief, informant who is brother-in-law (Jeeja) of the victim, lodged a first information report on 30.08.2021 against Gulab Singh, Ram Singh (present applicant), Lekhraj, Vimlesh and Shanti Devi alleging inter-alia that on 27.08.2021, his sister-in-law (Saali) aged about 15 years was sleeping alone at the roof of her house. At about 10:00 in the night, the present applicant Ram Singh, who is her neighbour, sneaked into her house and with an intention to outrage her modesty, caught hold of her. On raising alarm by the victim, her mother Pushpa Devi and father Jai Narayan woke up and when they rushed at the roof, applicant Ram Singh succeeded in fleeing away. Since it was late night, therefore, victim's father did not go to the police station to lodge FIR. On the next day i.e. 28.08.2021 when Jai Narayan was going to lodge FIR along with victim, at that time, the accused persons namely Gulab Singh, Ram Singh (present applicant), Lekhraj, Vimlesh and Shanti Devi armed with lathi, danda, farsa and iron rod barged into his house and started mounting pressure upon them for compromise. When Jai Narayan refused for the same, they started beating him. The FIR further alleges that when his wife Pushpa Devi and victim tried to intervene, they were also belaboured by them. Thereafter the accused persons ran away giving threat to them. The people of the locality collected there gave information about the said incident to the police by dialling 112, on which the police reached the spot and took Jai Narayan to Deen Dayal Hospital. Considering his condition as serious, he was referred to Medical Hospital, but since, there was no facility of ventilator at Medical Hospital, he was referred to Safdarjung Hospital, Delhi, where he succumbed to the injuries.
Submissions on behalf of the applicant.
4. It is argued by learned counsel for the applicant that general role of assault has been assigned to all the accused persons named in the FIR and no specific role has been attributed to the present applicant. It is also submitted that co-accused Smt. Shanti Devi and Smt. Vimlesh have been granted bail by the co-ordinate Bench of this Court vide order dated 01.04.2022 in Criminal Misc. Bail Application No. 54440 of 2021 and thereafter other co-accused persons namely Gulab Singh and Lekhraj have been granted bail vide order dated 09.09.2022 passed in Criminal Misc. Bail Application No. 25969 of 2022 only on the ground of parity of bail order of Smt. Shanti Devi and Smt. Vimlesh, as noted above, therefore, the applicant on the Principle of parity is also entitled to be released on bail. It is argued that if the applicant is not granted bail on the ground of parity, it would be violative of his fundamental right. Applicant has no criminal history to his credit and is languishing in jail since 22.09.2021.
Submissions on behalf of the State
5. Per contra, Shri Rabindra Kumar Singh, learned Additional Government Advocate for the State as well as learned counsel for the informant vehemently opposed the prayer for bail of the applicant in the light of prosecution case as mentioned in the FIR. It is also pointed out that the facts of this case, the injuries found on the body of the deceased, statement under Section 164 Cr.P.C. of the victim as well as statement under Section 161 Cr.P.C. of other prosecution witnesses, recorded during investigation, have not been taken into consideration by the Co-ordinate Bench of this Court while granting bail to co-accused persons as indicated herein above.
6. Placing reliance upon the decision of Hon'ble Supreme Court in Deepak Yadav Vs. State of U.P. and another, (2022) 8 SCC 559, learned Additional Government Advocate submits that it is the duty of the Court to record some reason while granting or rejecting the bail, whereas in the bail order dated 01.04.2022 of co-accused Smt. Shanti Devi and Smt. Vimlesh, no reason has been given for granting bail. Further co-accused Gulab Singh and Lekhraj have been granted bail by the Coordinate Bench of this Court vide order dated 09.9.2022 only on the ground of parity. Learned Additional Government Advocate further submits that parity cannot be the sole criteria to grant bail and if the bail granted to similarly placed co-accused persons without assigning any reasons, then on the basis of such bail orders merely on the ground of parity, the bail application should not be allowed. It is also submitted that the victim in her statement under Section 164 Cr.P.C. has reiterated the prosecution version with regard to outraging her modesty and assault on her father by all the five accused persons, named in the FIR. Learned Additional Government Advocate also submitted that judgment in the case of Dataram vs. State of U.P. and another, (2018) 3 SCC 22 is not applicable to the fact of the present case.
Settled principles for consideration of prayer for bail
7. Time and again, the Hon'ble Apex Court in plethora of judgements cautioned that while granting bail, the Courts should exercise discretion judiciously and framed guidelines for granting bail to an accused. Now, it would be useful to refer to some of the judgements of Hon'ble Apex Court in the matter of grant of bail to the accused.
8. In Prahlad Singh Bhati Vs. NCT of Delhi and Others (2001) 4 SCC 280, Hon'ble Apex Court laid down following principles for granting bail to the accused:
"(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail."
9. In Ram Govind Upadhyay Vs. Sudarshan Singh and others, (2002)3 SCC 598, Hon'ble Apex Court laid down the factors that must guide the exercise of the power to grant bail in the following terms:
"3. Grant of bail though being a discretionary order-- but, however, calls for exercise of such a discretion in a judicious manner and not as a matter of course. Order for bail bereft of any cogent reason cannot be sustained. Needless to record, however, that the grant of bail is dependent upon the contextual facts of the matter being dealt with by the court and facts, however, do always vary from case to case.The nature of the offence is one of the basic considerations for the grant of bail -- more heinous is the crime, the greater is the chance of rejection of the bail, though, however, dependent on the factual matrix of the matter.
4. Apart from the above, certain other which may be attributed to be relevant considerations may also be noticed at this juncture, though however, the same are only illustrative and not exhaustive, neither there can be any. The considerations being:
(a) While granting bail the court has to keep in mind not only the nature of the accusations, but the severity of the punishment, if the accusation entails a conviction and the nature of evidence in support of the accusations.
(b) Reasonable apprehensions of the witnesses being tampered with or the apprehension of there being a threat for the complainant should also weigh with the court in the matter of grant of bail.
(c) While it is not expected to have the entire evidence establishing the guilt of the accused beyond reasonable doubt but there ought always to be a prima facie satisfaction of the court in support of the charge.
(d) Frivolity in prosecution should always be considered and it is only the element of genuineness that shall have to be considered in the matter of grant of bail, and in the event of there being some doubt as to the genuineness of the prosecution, in the normal course of events, the accused is entitled to an order of bail.
10. In Kalyan Chandra Sarkar Vs. Rajesh Ranjan alias Pappu Yadav and another (2004)7 SCC 528, Hon'ble Supreme Court held thus:
"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."
11. In Chaman Lal Vs. State of U.P. (2004)7 SCC 525, Hon'ble Supreme Court while dealing with an application for bail, has stated that certain factors are to be considered for grant of bail, they are:
"......(i) nature of accusation and the severity of punishment in case of conviction and the nature of supporting evidence, (ii) reasonable apprehension of tampering with the witnesses or apprehension of threat to the complainant, and (iii) prima faice satisfaction of the court in support of the charge.
12. In Masroor Vs. State of U.P. (2009) 12 SCC 286, Hon'ble Supreme Court while giving emphasis to ascribe reasons for grant of bail, however, brief it may be, the Court observed:
" There is no denying the fact that the liberty of an individual is precious and is to to be zealously protected by the courts. Nonetheless, such a protection cannot be absolute in every situation. The valuable right of liberty of an individual and the interest of the society in general has to be balanced. Liberty of a persons accused of an offence would depend upon the exigencies of the case."
13. In the case of Prashant Kumar Sarkar Vs. Ashis Chatterjee and another, (2010)14 SCC 496, the accused therein was facing trial for the offence under Section 302 IPC. After being unsuccessful to obtain bail from the Sessions Court, the accused preferred a bail application before the High Court. The High Court allowed the bail to the accused by a short order, by observing thus:
"Having regard to the nature of the alleged crime, we do not think that interest of investigation requires or justifies further detention of the present petitioner (accused) at this stage."
14. Being aggrieved by the order of High Court granting bail to the accused, the first informant approached the Supreme Court by filing appeal. Hon'ble Supreme Court set aside the order of the High Court and allowed the appeal filed by the informant by holding thus"
"We are of the opinion that the impugned order is clearly unsustainable. It is trite that this Court does not, normally, interfere with an order passed by the High Court granting or rejecting bail to the accused. However, it is equally incumbent upon the High Court to exercise its discretion judiciously, cautiously and strictly in compliance with the basic principles laid down in a plethora of decisions of this Court on the point. It is well settled that, among other circumstances, the factors to be borne in mind while considering an application for bail are:
(i) whether there is any prima facie or reasonable ground to believe that the accused had committed the offence;
(ii) nature and gravity of the accusation;
(iii) severity of the punishment in the event of conviction;
(iv) danger of the accused absconding or fleeing, if released on bail;
(v) character, behaviour, means, position and standing of the accused;
(vi) likelihood of the offence being repeated;
(vii) reasonable apprehension of the witnesses being influenced; and
(viii) danger, of course, of justice being thwarted by grant of bail."
15. The Court in Prasanta Kumar Sarkar (Supra) went on to note that it is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind rendering it to be illegal.
16. In Anil Kumar Yadav Vs. State (NCT of Delhi), (2018)12 SCC 129, Hon'ble Supreme Court spelt out some of the significant considerations which must be placed in the balance in deciding the bail application, which reads 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."
17. Hon'ble Supreme Court in Mahipal Vs. Rajesh Kumar alias Polia and another, (2020)2 SCC 118, while setting aside the order of the High Court granting bail, observed thus"
"It is manifest that if the High Court does not advert to these relevant considerations and mechanically grants bail, the said order would suffer from the vice of non-application of mind, rendering it to be illegal..."
"The provision for an accused to be released on bail touches upon the liberty of an individual. It is for this reason that this Court does not ordinarily interfere with an order of the High Court granting bail. However, where the discretion of the High Court to grant bail has been exercised without the due application of mind or in contravention of the directions of this Court, such an order granting bail is liable to be set aside. The Court is required to factor, amongst other things, a prima facie view that the accused had committed the offence, the nature and gravity of the offence and the likelihood of the accused obstructing the proceedings of the trial in any manner or evading the course of justice. The provision for being released on bail draws an appropriate balance between public interest in the administration of justice and the protection of individual liberty pending adjudication of the case. However, the grant of bail is to be secured within the bounds of the law and in compliance with the conditions laid down by this Court. It is for this reason that a court must balance numerous factors that guide the exercise of the discretionary power to grant bail on a case by case basis. Inherent in this determination is whether, on an analysis of the record, it appears that there is a prima facie or reasonable cause to believe that the accused had committed the crime. It is not relevant at this stage for the court to examine in detail the evidence on record to come to a conclusive finding."
18. Hon'ble Supreme Court in Mahipal (Supra) went on to observe that there is another reason why the judgment of the learned Single Judge has fallen into error. It is a sound exercise of judicial discipline for an order granting or rejecting bail to record the reasons which have weighed with the court for the exercise of its discretionary power. In the present case, the assessment by the High Court is essentially contained in a single paragraph which reads:
"4. Considering the contentions put-forth by the counsel for the petitioner and taking into account the facts and circumstances of the case and without expressing opinion on the merits of the case, this court deems it just and proper to enlarge the petitioner on bail."
19. Supreme Court further held:
"Merely recording ―having perused the record and on the facts and circumstances of the case does not sub-serve the purpose of a reasoned judicial order. It is a fundamental premise of open justice, to which our judicial system is committed, that factors which have weighed in the mind of the judge in the rejection or the grant of bail are recorded in the order passed. Open justice is premised on the notion that justice should not only be done, but should manifestly and undoubtedly be seen to be done. The duty of judges to give reasoned decisions lies at the heart of this commitment. Questions of the grant of bail concern both liberty of individuals undergoing criminal prosecution as well as the interests of the criminal justice system in ensuring that those who commit crimes are not afforded the opportunity to obstruct justice. Judges are duty bound to explain the basis on which they have arrived at a conclusion."
20. Recently, a three Judges' Bench of Supreme Court in Jagjeet Singh & Ors. V. Ashish Mishra @ Monu & another, (2022) 9 SCC 321, has reiterated the factors that the Court must consider at the time of granting bail under Section 439 Cr.P.C. as well as highlighted the circumstances where Apex Court may interfere when bail has been granted in violation of the requirements under the abovementioned section. The Supreme Court observed:
" We may, at the outset, clarify that power to grant bail under Section 439 of CrPC, is one of wide amplitude. A High Court or a Sessions Court, as the case may be, are bestowed with considerable discretion while deciding an application for bail. But, as has been held by this Court on multiple occasions, this discretion is not unfettered. On the contrary, the High Court of the Sessions Court must grant bail after the application of a judicial mind, following well established principles, and not in a cryptic or mechanical manner."
21. In ''Y' Vs. State of Rajasthan and another, 2022 live Law (SC) 384, the Apex Court observed:
"22. The impugned order passed by the High Court is cryptic, and does not suggest any application of mind. There is a recent trend of passing such orders granting or refusing to grant bail, where the Courts make a general observation that "the facts and the circumstances" have been considered. No specific reasons are indicated which precipitated the passing of the order by the Court.
23. Such a situation continues despite various judgments of this Court wherein this Court has disapproved of such a practice."
22. This Court has granted bail to accused Mintu alias Jitendra , who in involved in Case Crime No. 08 of 2019, under Sections 302, 201, 376 read with 120B IPC and under Sections 5 and 6 of the POCSO Act for the alleged rape and murder of an eleven year old child. The High Court while granting bail held as under"
"Considering the overall acts and circumstances, the nature of allegations, the gravity of offence, the severity of the punishment, the evidence appearing against the accused, submission of learned counsel for the parties, considering the law laid down in the case of Data Ram Vs. State of U.P. and others, 2018(3), SCC, 2 and also the fact that aforesaid co-accused has been admitted to the concession of bail by this Court, but without expressing any opinion on merits, this Court finds it to be a fit case for bail.
Accordingly, the bail application stands allowed."
23. Being dissatisfied with the order of this Court granting bail, the first informant Indresh Kumar, approached the Hon'ble Supreme Court in Indresh Kumar Vs. State of U.P. And another, Live Law (SC) 610, Hon'ble Supreme Court while allowing the appeal and setting aside the order of the High Court, Hon'ble Supreme Court held thus:
"The offence alleged against the respondent-accused of rape and cold blooded murder of an eleven year old child is heinous and dastardly. The conduct of killing a child to avoid getting caught of the offence, inter alia, of rape and then burial of the child as also her stained clothes and other articles under the soil to cause disappearance of evidence and evade apprehension for the offence of murder is indicative of a tendency to evade the process of law. It is possible that the respondent-accused might flee to evade the process of law.
The High Court has ignored the material on record including incriminating statements of witnesses under Section 164/161 of the Code of Criminal Procedure. Statements under Section 161 may not be admissible in evidence, but are relevant in considering the prima facie case against an accused in an application for grant of bail in case of grave offence.
The High Court has granted the respondent-accused bail, without considering the heinous nature of the allegations against him, the gravity of the offence alleged and severity of the punishment in the event of ultimate conviction, only because a co-accused had also been granted bail by the High Court.
The impugned order of the High Court incorrectly states that bail is granted considering all the facts and circumstances, nature of allegations, gravity of the offence, severity of the punishment, the evidence appearing against the accused and the law laid down in Dataram Singh Vs. State of U.P. and others, (2018)2 SCC 22. This has not been done. "
24. The Apex Court further went on to note that the observations and directions in Dataram Singh (Supra) were in the context of arrest and long custodial detention in a case under Section 138 of the Negotiable Instruments Act, 1881 for issuing cheque and then stopping payment of the cheque. Bail application had been rejected, first by the Trial Court and then by the High Court even after five months of detention of the accused in custody.
25. In Ajwar Vs. Niyaj Ahmad and another, Criminal Appeal No. 1722 of 2022 (arising out of SLP (Crl.) No. 8139 of 2022), Hon'ble Supreme Court while setting aside the order of Allahabad High Court held as under:
"However, the reasons in support of an order granting or refusing bail must emerges from the record and must show a due application of mind by the Judge to the facts of the case. An over-burdened docket is no justification for formulaic justice. We, therefore, disapprove of the manner in which the Single Judge of the High Court of Judicature at Allahabad has been dealing with applications for bail.
Factual analysis of the present case.
26. Now turning to the facts of the instance case. After the incident, the injured (deceased) was taken to Deen Dayal Hospital, but as his condition was precarious, he was referred to Medical College. Since the Ventilator was not available in the Medical College, he was referred to Safdarjung Hospital, Delhi, where he breathed his last. The post mortem on the cadaver was conducted by the Department of Forensic Medicine & Texicology Vardhman Mahavir Medical College & Safdarjung Hospital, New Delhi. Doctor found the following injuries:
(i) Lacerated wound of size 6.5cm x 0.5 cm x bone deep, present vertically over parietal region of head on right side, lower end of the wound situated 7.0cm away from midline and 9.0cm above right supra-orbital ridge.
(ii) Lacerated wound of size 3.1cm x 0.8cm x bone deep, present over parietal region of scalp on right side situated 10.1 cm above right supra-orbital ridge and 2.0cm away from midline on right side.
(iii) Lacerated wound of size 0.3cm x 0.1cm x 0.1cm present over inner aspect of lower lip in midline.
(iv) Bluish contusion of size 1.0cm x 1.0cm present over inner aspect of lower lip on right side.
(v) Reddish brown scabbed abrasion of size 5.1cm x 1.0cm present over back of right shoulder situated at the level of top of right shoulder and 17.1cm away from midline.
In respect of the position of the head of the deceased, following observations were made:
"Scalp: Extravasation of blood, present over right fronto-parietal region of scalp and diffusely present over left side of scalp.
Temporalis muscle: Right temporalis muscle contused.
Skull: A piece of skull bone missing underneath craniotomy wound from left fronto-tempo-parietal region over an area of 13.0cm x 10.0cm. Linear fracture of length 2.2cm present over floor of middle cranial fossa on left side. Sutural fracture of length 5.2cm present along coronal suture on right side. Linear fracture of length 5.1cm present over right temporal bone. Extravasation of blood present over fractured sites.
Membranes: Surgically cut underneath craniotomy site and replaced with artificial graft covered with blood clots.
Brain: Subdural and subarachnoid hemorrhages diffusely present over surface of bilateral cerebral hemispheres."
Cause of death: Death is due to cranio-cerebral damage as a result of ante mortem injuries sustained to head produced by blunt force impace. All injuries are ante mortem in nature and injury No. 1, injury No. 2 along with internal injuries, sustained to head are sufficient to cause death in ordinary course of nature.
27. There are two incidents in the matter. In the first incident, the applicant sneaked into the house of the victim, which is attached to his house and tried to outrage her modesty. The second incident is the stem of the first incident, in which the deceased was beaten to death by the applicant and other co-accused persons.
28. Victim, who is aged about 15 years as per medical examination report, in her statement under Section 161 as well as 164 Cr.P.C. has given a vivid description of the offence by stating that on 27.8.2021 at about 10 PM, when she was sleeping on the roof of her house, accused-applicant Ram Singh, came to her roof, which is attached to his roof and in order to outrage her modesty, captured her. On her shrieks, when her parents came to the roof, accused-applicant jumped to his roof. Due to night, she could not get her report lodged. On 28.8.2021 when she along with her father were going to get her report lodged, accused Gulab Singh, Ram Singh (applicant), lekhraj, Smt. Vimlesh and Smt. Shanti Devi barged into her house and pressurized her father for not lodging the FIR. When her father did not surrender to their words, all the accused persons assaulted him with lathi, danda and iron rod and fled away from the scene extending threats. Smt. Pushpa Devi, wife of the deceased, who is the eyewitness of the incident have also supported the prosecution case. As indicated in the post-mortem report, a piece of skull bone was found missing underneath craniotomy wound from left fronto-tempo-parietal region over an area of 13.00 cm x 10.00 cm.
29. After the arrest of the present applicant Ram Singh, he confessed to his guilt and stated before the police that he used to molest the victim and a day prior to the instant incident, he also tried to outrage her modesty. He also stated that he along with the aforesaid accused persons assaulted the deceased with danda. Danda, which was used for assaulting the deceased was also recovered at the pointing out of the applicant. At present, there is nothing on record to disbelieve the statements of the victim and wife of the deceased.
Discussion about the issue of parity
30. The arguments advanced by the learned counsel for the applicant is that co-accused Smt. Shanti Devi and Smt. Vimlesh having been enlarged on bail by the Coordinate Bench of this Court vide order dated 01.4.2022 and other co-accused Gulab Singh and Lekhraj vide order dated 09.9.2022 as noted above, the applicant is also entitled to bail.
31. I find that an issue of legal nodus of ubiquitous manifestation of law of parity and gravity of offence has arisen before this Court. In this regard, it would be apposite to discuss and consider the following decisions.
32. In Sunder Lal Vs. State of U.P., 1983 Cr.L.J. (FB) (Allahabd High Court), in addition to the other questions, a question has cropped up before the Full Bench of this Court that by reasons of fact that other co-accused having been granted bail, the applicant should also be granted bail only on the ground of parity. The learned single Judge in order to avoid delay and expedite the disposal of the bail application referred the whole case for consideration by the Bench.
33. The Full Bench (Supra) of this Court did not agree with the contention of the learned counsel for the applicant. Since the learned single Judge had referred the whole case for decision by the Full Bench, the Bench called upon the learned Counsel for the applicant to argue the bail application on merits.
34. The learned counsel only pointed out that by reasons of fact that other co-accused has been admitted to bail the applicant should also be granted bail.
35. The Full Bench while rejecting the bail application of the application held thus"
"This argument alone that by reasons of fact that other co-accused has been admitted to bail the applicant should also be granted bail, would not be sufficient for admitting the applicant to bail who is involved in a triple murder case. Moreover, it appears that on merits this application had not been pressed before the learned single Judge but only on legal ground it was prayed that the applicant be admitted to bail."
36. The Division Bench of this Court in Chander alias Chandra Vs. State of U.P., 1998 Cr.L.J., 2378, after noticing the submission made on behalf of the applicant that an accused is entitled to bail if a co-accused similarly placed has been granted bail, the learned Judge of this Court has formulated the following question for decision by the larger Bench:
"Let the papers of this case be laid before Hon'ble the Chief Justice for constituting a larger Bench to lay down guidelines as to what should be done in a case like this where bail has been granted to a co-accused, and whether in the present case (1) the bail application of the applicant should be rejected although bail has been granted to a co-acused whose case is on the same footing." (2) whether bail granted to the co-accused should be cancelled."
37. Thereafter, Hon'ble the Chief Justice has referred the matter to the Division Bench of this Court. Before the Division Bench, it was argued that if an accused is granted bail, a similarly placed co-accused should also be granted bail on the principle of parity.
38. The Division Bench did not impress by the submission of learned counsel for the applicant therein and held as under:
"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 co-accused contains reasons, if the same has been passed in flagrant violation of well settled principle and ignores to take into consideration the relevant factors essential for granting bail."
39. In Deepak Yadav (Supra) the first information report was lodged against Harjeet Yadav, Sushil Kumar Yadav and two unknown persons with the allegation that the accused persons fired at the deceased with common intention to kill him. The bullet shot hit his right cheek and made its exit through the other side leaving him severely injured. He was admitted to the hospital where he told his wife that he was shot by accused-Harjeet Yadav and one Sushil Yadav and that they were accompanied by two other persons as well. The statement given by the deceased was noted down by Shri Mahesh Kumar Chaurasia, SSP/ACP, Lucknow and Shri Ashok Kumar Singh, SI/First Investigating Officer. Accused/Harjeet Yadav was arrested and one country made pistol with two live cartridges were recovered from him. After the death of the victim, the case was converted to one under Section 302 IPC. The Bail application moved by the accused-Harjeet Yadav was rejected by the Sessions Judge, Lucknow on the ground that he has been named on the basis of the information given by the deceased himself.
40. Being unsuccessful to obtain bail from the Sessions Court, the accused-Harjeet Yadav moved the High Court for grant of bail, where a plea has been taken that co-accused Sushil Kumar Yadav has been granted bail by the High Court on 18.10.2021 in Bail Application No. 8501 of 2021 and that the case of accused/Harjeet Yadav stands on identical footing making him entitled for bail on the ground of parity. The bail application was allowed vide order dated 22.10.2021. The operative portion of the judgement reads as under:
"Keeping in view the nature of the offence, arguments advanced on behalf of the parties, evidence on record regarding complicity of the accused, larger mandate of the Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. & Anr (2018) 3 SCC 22 and without expressing any opinion on the merits of the case, the Court is of the view that the applicant has made out a case for bail. The bail application is allowed.
41. After considering pleuthera of judgements on the guiding principle for adjudicating a regular bail, Hon'ble Supreme Court in Deepak Yadav (Supra) held as under:
26. "The importance of assigning reasoning for grant or denial of bail can never be undermined. There is prima facie need to indicate reasons particularly in cases of grant or denial of bail where the accused is charged with a serious offence. The sound reasoning in a particular case is a reassurance that discretion has been exercised by the decision maker after considering all the relevant grounds and by disregarding extraneous considerations."
" xxxxxxxxxxxxxxxxxxx"
"39. Grant of bail to the Respondent No. 2/accused only on the basis of parity shows that the impugned order passed by the High Court suffers from the vice of non-application of mind rendering it unsustainable. The High Court has not taken into consideration the criminal history of the respondent No. 2/accused, nature of crime, material evidences available , involvement of respondent No. 2/accused in the said crime and recovery of weapon from his possession."
42. Hon'ble Supreme Court in Brijmani Devi Vs. Pappu Kumar (2022) 4 SCC 497, deprecated the practice to allow bail application without assigning any reason by observing as under:
"Thus, while elaborating reasons may not be assigned for grant of bail, at the same time an order de hors reasoning or bereft of the relevant reasons cannot result in grant of bail. It would be only a non speaking order which is an instance of violation of principles of natural justice. In such a case the prosecution or the informant has a right to assail the order before a higher forum."
43. Now the issue for consideration before this Court is whether the Coordinate Benches of this Court while granting bail to the co-accused have taken into consideration the gravity of the offence, guidelines laid down by Hon'ble Supreme Court referred to above and assigned any reason for granting bail.
44. In this case five persons namely Gulab Singh, Ram Singh (applicant), Lekhraj, Smt. Vimlesh and Smt. Shanti Devi have been nominated in the first information report. Out of the aforesaid five accused person, four accused namely Smt. Shanti Devi, Smt. Vimlesh, Gulab Singh and Lekhraj have been granted bail by the two different Coordinate Benches of this Court. In the order dated 01.4.20222, the Coordinate Bench of this Court while granting bail to Smt. Shanti Devi and Smt. Vimlesh after noting the submissions of the parties, held as under:
"Having heard the submissions of learned counsel of both the sides, nature of accusation and severity of punishment in case of conviction, nature of supporting evidence, prima facie satisfaction of the Court in support of the charge, reformative theory of punishment and considering the larger mandate of Article 21 of the Constitution of India and the dictum of Apex Court in the case of Dataram Singh Vs. State of U.P. and another, (2018)3 SCC 22, without expressing any view on the merits of the case, I find it to be a case of bail."
45. Co-accused Gulab Singh and Lekhraj have been granted bail by another Coordinate Bench of this Court vide order dated 09.9.2022 only on the ground of parity with the co-accused Smt. Shanti Devi and Smt. Vimlesh. The Court noted as under:
" Considering the facts and circumstances of the case as well as submissions advanced by learned counsel for the parties and enlargement of identically placed co-accused on bail, without expressing any opinion on the merits of the case, the applicants are entitled for bail."
46. In both the orders granting bail, no reason whatsoever has been assigned by the Coordinate Benches of this Court. It is a very serious matter. Firsty the applicant tried to outrage the modesty of a minor girl and when the father of the victim was going to lodge the first information report, he was beaten to death. The witnesses including the victim, who is the daughter of the deceased and Smt. Pushpa Devi, who is the wife of the deceased have fully supported the prosecution case. The danda, which was used in the commission of crime was also recovered at the pointing out of the applicant.
Analysis about Article 14
47. Now the other contention of learned counsel for the applicant is that not granting bail to a similarly placed co-accused on the ground of parity would amount to discrimination and would be violative of his fundamental right guaranteed under Article 14 of the Constitution. This issue has already been set at rest by the decision of nine judges Bench of Hon'ble Supreme Court in Naresh Vs. State of Maharashtra, AIR 1967 SC 1, wherein the Hon'ble Apex Court held as under:
"It is clear that the observations made by this Court in this case unambiguously indicate that it would be inappropriate to suggest that the decision rendered by a judicial tribunal can be described as offending Article 14 at all. It may be a right or wrong decision and if it is a wrong decision it can be corrected by appeal or revision as may be a permitted by law, but it cannot be said per se to contravene Article 14 of the Constitution."
48. Having heard learned counsel for the parties and examined the matter in its entirety, I find that as per post-mortem prepared by the Department of Forensic Medicine and Toxicology Vardhman Mahavir Medical College and Safdarjung Hospital, New Delhi as described above, the assault was so powerful that a piece of skull bone was found missing underneath cranlotomy wound from left fronti-temporo parietal region over an area of 13.0 cm x 10.0 cm. Linear fracture of length 2.2 cm present over floor of middle cranial fossa on left side. Sutural fracture of length 5.2 cm present along coronal suture on right side. Linear fracture of length 5.1 cm present over right temporal bone. Extravasation of blood present over fractured sites. I also find that the prosecution case is corroborated from the statement under Section 164 Cr.P.C. of the minor victim as well as from the injuries found on the body of the deceased as noted above. So far as the submission of learned counsel for the applicant that other co-accused have been granted bail, are concerned, I find substance in the submission of learned State Counsel that neither the facts of the case have been considered while granting bail order nor any reason has been assigned in granting bail to co-accused. I also find that case of present applicant is distinguishable from the case of other co-accused persons because there was no allegation against them with regard to outraging the modesty of the minor victim which has only been assigned to the present applicant and the further incident, which took place on 28.08.2021 was the outcome of the act committed by the applicant in the night of 27.08.2021. Further the Danda, which was used in the incident, was also recovered at the pointing out of the appellant.
49. In view of the verbose discussion, considering the overall facts and circumstances of the case as well as keeping in view the submissions advanced on behalf of parties, gravity of offence, role assigned to applicant, nature of injuries and severity of punishment, I do not find any good ground to release the applicant on bail.
50. Accordingly, the bail application is rejected.
51. However, It is made clear that the observations made herein above were only confined to the disposal of bail application and in no way be construed to have an expression on the merits of the case.
Order Date :- 23.2.2023 Saurabh/Ishrat