Gaffar vs State of U.P.

Vijay Kumar Verma, J.—AGA has filed counter affidavit, which is taken on record.

Heard Sri Noor Mohammad, Advocate appearing for the applicant, Sri Nisar-uddin, counsel for the complainant and AGA for the State.

The allegations made in the FIR lodged on 27.12.2007 at 9:05 p.m. by Shaheed Ahmad son of Bunda Khan at P.S. Dhaulana, District-Ghaziabad at case crime No. 188 of 2007 u/s 147, 148, 149, 302, 120B I.P.C., in brief, are that the accused Istay @ Istakhar, Gaffar, Anis and Siraj committed the murder of Sabbir Ahmad, brother of the complainant, by causing fire arm injuries to him on 27.12.2007 at about 8:00 p.m. The incident is said to have been witnessed in the light of gas lantern by the witnesses.

The first and foremost submission made by learned Counsel for the applicant is that similarly placed co-accused Sattar has been granted bail by another Bench of this Court vide order dated 12.11.2008 passed in bail application No. 12081 of 2008, hence on the basis of the principle of parity the applicant also should be released on bail. It is also submitted in this context that on the basis of the bail order dated 12.11.2008, other two co-accused namely Yamin and Istay also have been granted bail by other Benches of this Court vide order dated 8.12.2008 passed in bail application No. 32040 of 2008 and order dated 18.5.2009 passed in bail application No. 11445 of 2009 respectively.

Next submission made by learned Counsel is that in the site plan, there is no mention of any lantern and since the incident had occurred in the night, hence there was no occasion for the witnesses to identify the assailants.

Further submission made by learned Counsel for the applicant is that except the deceased no other person had sustained any injury, although indiscriminate firing is said to have been made by the accused persons, which makes the presence of witnesses doubtful.

It is also submitted that the applicant is languishing in jail since 27.12.2007 and hence on the basis of the long detention period in jail, he deserves bail, as due to delay in trial his Fundamental Right of speedy trial envisaged under Article 21 of the Constitution is being violated.

Further submission made by learned Counsel is that no such incident as alleged in the FIR and statements of the witnesses had occurred and due to enmity and village party bandi, the applicant has been falsely roped in this case.

The bail application has been vehemently opposed by learned Counsel for the complainant and AGA contending that the applicant had actively participated in the incident by causing injuries to the deceased by means of fire arm.

About omission to mention the gas lantern or any other lantern in the site plan, it is submitted by learned Counsel for the complainant that due to latches and negligence of the investigation officer, the prosecution would not suffer, because all the witnesses have stated in their statements recorded u/s 161 Cr.P.C. that they had seen the incident in the light of gas lantern.

On the matter of granting bail on the basis of the principle of parity, it is submitted by learned Counsel for the complainant and AGA that parity cannot be the sole ground for bail

I have given my thoughtful consideration to the submissions made by learned Counsel for the parties and also perused the entire material on record. I entirely agree with the contention of learned Counsel for the complainant and AGA that parity cannot be sole ground of bail.

The matter of granting bail on the ground of principle of parity has been considered in several decisions of this Court and Hon''ble Apex Court. The Full Bench of this Court in Sunder Lal Vs. The State, did not accept this proposition, which will be evident from the following observations in para 15 of the report:

The learned Single Judge since has referred the while case for decision by the Full Bench, we called upon the learned Counsel for the applicant to argue the case on merits. 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. This argument alone would not be sufficient for admitting the applicant to bail who is involved in a triple murder case....

This question was again examined by the Division Bench of this Court in Nanha Vs. State of U.P., where after consideration of several earlier decisions on the point including Sunder Lal (supra), the Hon''ble Judges constituting the Bench gave separate opinions. Hon''ble G.D. Dubey, J. held as follows in para 24 of the reports;

...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 application of the co-accused whose bail 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 material 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.

Hon''ble Virendra Saran, J. held as follows in para 61 of the reports:

My answer to the points referred to is that if on examination of a given case it transpires that the case of the applicant before Court is identical, 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 also be released on bail (Exceptional cases as discussed above apart)....

This shows that there was no unanimity between the two Judges constituting the Bench and according to Hon''ble G.D. Dube, J. parity cannot be the sole ground for granting bail to a co-accused.

The Hon''ble M. Katju, J., as His Lordship then was, declined to grant bail on the ground of parity and referred the matter to larger Bench in Chander @ Chandra v. State of U.P. 1997 (34) ACC 311. The matter came up for consideration before a Division Bench. While deciding the said reference in Chander @ Chandra v. State of U.P. 1998 U.P. C.R. 263 the Division Bench held that:

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 facts essential for granting bail.

It is further held by the Division Bench in Chander @ Chandra v. State of U.P. 1998 U.P. C.R. 263 that if bail has been granted in flagrant violation of well settled principles, the order granting bail would not be in accordance with law. Such order can never form the basis for a claim founded on parity. The following observations made by the Bench in Para 17 of the report are also worth mentioning:

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 this connection it will be useful to notice the observations made by the Hon''ble Apex Court, where the claim was made on the ground that a similar order had been passed by a statutory authority in favour of another person. In Chandigarh Administration and another Vs. Jagjit Singh and another, it was held as follows in para-8 of the reports:

...if the order in favour of the other person is found to be contrary to law or not warranted in the facts and circumstances of his case, it is obvious that such illegal and unwarranted order cannot be made the basis of issuing a writ compelling the respondent-authority to repeat the illegality or to pass another unwarranted order.

...The illegal/unwarranted action must be corrected, if it can be done according to law-indeed, wherever it is possible, the Court should direct the appropriate authority to correct such wrong orders in accordance with law-but even if it cannot be corrected, it is difficult to see how it can be made a basis for its repetition.

...Giving effect to such pleas would be prejudicial to the interests of law and will do incalculable mischief to public interest. It will be a negation of law and the rule of law.

Again in Secretary, Jaipur Development Authority, Jaipur Vs. Daulat Mal Jain and Others, , it was observed as follows in para-24 of the reports:

Article 14 proceeds on the premises that a citizen had legal and valid right enforceable at law and persons having similar right and persons similarly circumstanced, cannot be denied of the benefit thereof. Such persons cannot be discriminated to deny the same benefit. The rational relationship and legal back up are the foundations to invoke the doctrine of equality in case of persons similarly situated. If some persons derived benefit by illegality and had escaped from the clutches of law, similar persons cannot plead nor the Court can countenance that benefit had from infraction of law and must be allowed to be retained. Can one illegality be compounded by permitting similar illegal or illegitimate or ultra vires acts? Answer is obviously, No.

In SLP No. 4059 of 2000: Rakesh Kumar Pandey v. Munni Singh @ Mata Bux Singh and Anr., 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.

20.The Apex Court in the aforesaid law report 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 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.

In the case of Salim v. 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 v. 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.

The matter of granting bail on the principle of parity was considered by this Court in Satyendra Singh v. State of U.P. 1996 A.C.R.867 also. The following observations made in para 16 of the report at page 871 are worth mentioning:

The orders granting, refusing or cancelling bail are orders of interlocutory nature. It is true that discretion in passing interim orders should be exercised judicially but rule of parity is not applicable in all the cases, where one or more accused have been granted bail or similar role has been assigned inasmuch as bail is granted on the totality of facts and circumstances of a case. Parity can not be a sole ground and is one of the grounds for consideration of the question of bail. Some of the circumstances have been enumerated in the Supreme Court Decision in Gur Charan Singh v. State (Delhi Administration) AIR 1978 SC 179.

Although the Hon''ble Apex Court has granted bail making reference of the principle of parity in Izharul Haq Abdul Hamid Shaikh and Another Vs. State of Gujarat, and in Fida Hussain Bohra v. State of Maharashtra 2009 (2) JIC 312 (SC) , the order of granting anticipatory bail by the Sessions Judge was maintained after setting aside the order of High Court cancelling the bail granted by Sessions Judge and in this case also, reference of principle of parity has been made, but in both these case, merit of the case was also considered by the Hon''ble Apex Court. Hence, in my opinion, both these cases can not be said to be the authority to hold that parity is sole ground for granting bail in all cases. It is nowhere held as a binding precedent in these cases that if bail has been granted by one Judge to any accused, then another Judge is also bound to grant bail to other similarly placed accused in all cases on the basis of the principle of parity without considering the merit. It is well settled that a judgement of a Court is only an authority for what it actually decides and not what logically follows from it and judgement of the Court is not to be read mechanically as a Euclid''s Theorem nor as if it was a statute. The Hon''ble Apex Court has held in Deepak Bajaj Vs. State of Maharashtra and Another, that it is well settled that a judgment of a Court is not to be read mechanically as a Euclid''s Theorem nor as if it was a statute.

On the subject of precedents, Lord Halsbury, L.C. said in Quinn v. Leathern 1901 AC 495:

Now before discussing the case of Allen v. Flood (1898) AC 1 and what was decided therein, there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but are governed and qualified by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. I entirely deny that it can be quoted for a proposition that may seem to follow logically from it. Such a mode of reasoning assumes that the law is necessarily a logical Code, whereas every lawyer must acknowledge that the law is not always logical at all.

In Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 the Hon''ble Apex Court observed:

The ratio of any decision must be understood in the background of the facts of that case. It has been said a long time ago that a case is only an authority for what it actually decides and not what logically follows from it.

In Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, the Hon''ble Apex Court observed:

It is well settled that a little difference in facts or additional facts may make a lot of difference in the precedential value of a decision.

As held in Bharat Petrolieum Corporation Ltd. and Anr. v. N.R. Vairamani and Anr. AIR 2004 SC 4778, a decision cannot be relied on without disclosing the factual situation. In the same judgment the Hon''ble Apex Court also observed:

Courts should not place reliance on decisions without discussing as to how the factual situation fits in with the fact situation of the decision of which reliance is placed. Observations of Courts are neither to be read as Euclid''s Theorems nor as provisions of the statute and that too taken out of the context. These observations must be read in the context in which they appear to have been stated. Judgments of Courts are not to be construed as statutes. To interpret words, phrases and provisions of a statute, it may become necessary for Judges to embark into lengthy discussions but the discussion is meant to explain and not to define. Judges interpret statutes, they do not interpret judgment. They interpret words of statutes: their words are not to be interpreted as statutes.

In London Graving Dock Co. Ltd. v. Horton 1951 AC 737 at page 761, Lord Mac Dermot observed:

The matter cannot, of course, be settled merely by treating the ipsissima verba of Willes, J. as though they were part of an Act of Parliament and applying the rules of interpretation appropriate thereto. This is not to detract from the great weight to be given to the language actually used by that most distinguished Judge.

In Home Office v. Dorset Yacht Co. 1970 (2) All ER 294 Lord Reid Said, "Lord Atkin''s speech...is not to be treated as if it was a statute definition: it will require qualification in new circumstances, Megarry, J. in (1971) 1 WLR 1062, observed:

One must not, of course, construe even a reserved judgment of Russell,J. as if it were an Act of Parliament.

In Herringion v. British Railways Board 1972 (2) WLR 537 Lord Morris said:

There is always peril in treating the words of a speech or judgment as though they are words in a legislative enactment, and it is to be remembered that judicial utterances are made in the setting of the facts of a particular case.

Circumstantial flexibility, one additional or different fact may make a world of difference between conclusions in two cases. Disposal of cases by blindly placing reliance on a decision is not proper. The following words of Lords Denning in the matter of applying precedents have become locus classicus:

Each case depends on its own facts and a close similarity between one case and another is not enough because even a single significant detail may alter the entire aspect. In deciding such cases, one should avoid the temptation to decide cases (as said by Cardozo, J.) by matching the colour of another. To decide, therefore, on which said of the line a case falls, the broad resemblance to another case is not at all decisive.

Precedent should be followed only so far as it marks the path of justice, but you must cut the dead wood and trim off the said branches else you will find yourself lost in thickets and branches. My plea is to keep the path of justice clear of obstructions which could impede it.

The same view was taken by the Hon''ble Apex Court in Sarva Shramik Sanghatana (K.V), Mumbai Vs. State of Maharashtra and Others, and in Government of Karnataka and Ors. v. Gowramma and Ors. AIR 2008 SC 863.

In view of the observations made in aforesaid decisions, I am of the considered opinion that on granting bail by one Judge to any accused, another Judge is not under obligation to grant bail to similarly place co-accused on the basis of the principle of parity without considering the merit. As held by Division Bench of this Court in Chander @ chandra v. State of U.P. (supra), if the order granting bail to an identically placed co-accused has been passed in flagrant violation of well settled principle, then another Judge is not bound to release the similarly placed ascused on bail and it is open to him to reject the bail application before him, as no judge is obliged to pass orders against his conscience merely to main consistency. Therefore, in present case also, merely on the basis of the principle of parity, the applicant cannot be released on bail and the bail application of the applicant has to be considered on merit.

From perusal of the case diary and other material on record, this fact is borne out that the applicant also had played active role in committing the murder of deceased by firing on him. The postmortem report (annexure-2) shows that as many as eleven ante mortem fire arm injuries were found on the person of deceased, out of which four were exit wounds. Prima facie complicity of the applicant in committing the murder of deceased has been established on the basis of the statements of witnesses, who have categorically stated that they had seen the incident and recognized the accused persons in the light of gas lantern. Therefore, having regard to all these facts, but without expressing any opinion about merit of the case, in this heinous crime of taking away the life of an innocent person without any lawful excuse, the applicant does not deserve bail.

In my considered opinion, on the basis of long incarceration in jail, the applicant can not be admitted to bail in this heinous crime. In this context, reference may be made to the case of Pramod Kumar Saxena v. Union of India and Ors. 2008 (63) ACC 115, in which the Hon''ble Apex Court has held that mere long period of incarceration in jail would not be per-se illegal. If the accused has committed offence, he has to remain behind bars. Such detention in jail even as an under trial prisoner would not be violative of Article 21 of the Constitution.

Consequently, the bail application is hereby rejected.

The trial court is directed to conclude the trial of the applicant within a period of six months applying the provisions of Section 309 Cr.P.C. and avoiding unnecessary adjournments.

The S.S.P. Ghaziabad is also directed to depute special messenger to procure the attendance of witnesses after obtaining their summons from the trial court concerned and it must be ensured that all the witnesses are produced in the session trial arising out of Case Crime No. 188 of 2007 for evidence without causing any delay.

The office is directed to send a copy of this order within a week to the trial court concerned and S.S.P. Ghaziabad for necessary action.