Jai Bhagwan vs State of U.P.

Vijay Kumar Verma, J.—This 3rd bail application has been moved on behalf of applicant-accused Jai Bhagwan S/o Mahavir, who is facing trial in S.T. No. 1009 of 2006, State v. Jai Bhagwan and othersarising out of Case Crime No. 213 of 2006, under Sections 147, 148, 149, 307, 324 and 302, I.P.C. and Section 3(2)(v) of S.C./S.T. Act, P. S. Adarsh Mandi Shamli, District Muzaffarnagar. The said session trial is pending in the Court of Additional Sessions Judge, Court No. 2, Muzaffarnagar.

1st Bail Application bearing No. 24436 of 2006 was decided on merit by Hon''ble R. N. Mishra, J., vide order dated 18.7.2007, whereby the prayer for bail was declined. After examination of the witnesses including the injured Amit in S.T. No. 1009 of 2006, 2nd Bail Application bearing No. 24599 of 2007 was moved, which was decided by Hon''ble S. C. Nigam J. Having taken into consideration statement of P.W. 2, Amit and other facts, the 2nd bail application was also rejected vide order dated 18.4.2008. The applicant has taken a chance again for bail in this 3rd bail application.

I have heard Sri Onkar Singh, advocate appearing for the applicant and A.G.A. for the State and perused the entire record.

The main submission made by learned Counsel for the applicant in support of the 3rd bail application was that according to the post-mortem report, the deceased Neetu had sustained only two ante-mortem injuries, which according to the statement made by P.W. 2 Amit Kumar (injured witness), were caused by the accused Sukhbir and Jitendra and hence on this ground, the applicant Jai Bhagwan is entitled for bail, because according to the injured witness Amit, the applicant Jai Bhagwan did not cause any injury to the deceased.

It was also submitted by learned Counsel for the applicant that all other accused have been granted bail and hence on the ground of parity also, the applicant Jai Bhagwan deserves bail. It is also submitted in this context that general role of causing injuries to the deceased and injured Amit has been attributed to all the accused persons and no specific role of causing injuries either to the deceased or injured was assigned in the F.I.R. and hence the applicant Jai Bhagwan also should be admitted to bail now, because all other accused are on bail.

It was further submitted by learned Counsel that the applicant is in jail since 12.7.2007 and hence on the basis of long detention period in jail, the applicant is entitled to be released on bail, because due to delay in trial, fundamental right of speedy trial envisaged under Article 21 of the Constitution is being infringed.

The bail application was opposed by the learned A.G.A. contending that all the submissions which have been advanced by learned Counsel for the applicant in support of the 3rd bail application were available at the time of disposal of 2nd bail application and hence 3rd bail application on the same ground is not maintainable.

It was further submitted by learned A.G.A. that P.W. 1 Jagbir Singh is also an eye-witness of the incident and he has specifically stated in his statement that the accused having tabal caused injuries to the deceased Neetu in his head and since according to the statements of all the witnesses, who have been examined so far, the applicant-accused Jai Bhagwan was armed with tabal, hence the applicant should not be granted bail.

It was also submitted by learned A.G.A. that although nature of ante-mortem injury No. 1 of the deceased Neetu, as recorded in the post-mortem report, is not legible, but on the basis of dimensions of this injury, it can very well be said that this injury was incised wound which is possible to be caused by blow of tabal, which the applicant Jai Bhagwan was carrying at the time of incident, which was used by him in causing injury in the head of the deceased as per statement of P.W. 1 Jagbir Singh.

I have carefully gone through the statements of the witnesses Jagbir Singh P.W. 1, Amit P.W. 2, and Brij Lal P.W. 3. It is true that in cross-examination of his statement (Annexure-3), recorded on 14.9.2007 after two days of recording the examination-in-chief, P.W. 2 Amit (injured witness) has stated that in the head of Neetu (deceased), blow of lathi was given by Sukhbir and accused Jitendra had given blow by katar to him, but this Court will not be justified to make any comment about the statement of this witness, because granting or refusing bail on the basis of the statement of this witness would certainly cause serious prejudice to the parties. After having considered the statement of P.W. 2 Amit, Hon''ble S. C. Nigam, J., has declined to grant bail to the applicant Jai Bhagwan, vide order dated 18.4.2008, passed in 2nd Bail Application No. 24599 of 2007. Therefore, the same matter cannot be considered by this Court again in this 3rd bail application. In this context I would like to refer the decision in the case of Satya Pal v. State of U. P. (XXXVII) 1998 ACC 287: 1998 (2) ACR 1264, in which the Division Bench of this Court has held that fresh arguments in 2nd bail application for an accused cannot be allowed to be advanced on those very facts, which were available to the accused while the 1st bail application was moved and rejected. Therefore, on the basis of aforesaid submissions, the applicant cannot be admitted to bail in 3rd bail application, as the statement of injured witness Amit and other facts have already been considered at the time of passing order on 18.4.2008 in 2nd Bail Application No. 25499 of 2007.

In my considered opinion, on the ground on parity also, the applicant Jai Bhagwan does not deserve bail, because for the reasons mentioned herein-under, parity cannot be the sole ground for granting bail.

The matter of granting bail on the ground of parity has been considered in several decisions of this Court. The Full Bench 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 whole 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 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 alias Chandra v. State of U. P. (XXXVII) 1997 ACC 311 : 1997 ACR 6 : 1998 UP CrR 263. The matter came up for consideration before a Division Bench. While deciding the said reference in Chander alias Chandra v. State of U. P. 1998 UP CrR 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 alias Chandra v. State of U. P. 1998 UP CrR 263: 1997 ACR 6, 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 a 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 alias 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 bal 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 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 judgment 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 ALJ 625: 2002 (3) ACR 2584, this Court has held that parity cannot be the sole ground for bail.

Again in the case of Zubair v. State of U. P. (LII) 2005 ACC 205: 2005 (2) ACR 1354, this Court observed that there is no absolute hide bound 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 ACR 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 cannot 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 recently on the ground of parity in Izharul Haq Abdul Hamid Shaikh and Another Vs. State of Gujarat, but this case cannot be said to be the authority to hold that parity is a sole ground for granting bail. It is nowhere held as a binding precedent in this case that if bail has been granted by a Bench to one accused, then another Bench is bound to grant bail to other similarly placed accused. Otherwise also a judgment of the Court is only an authority for what it actually decides and not what logically follows from it and judgment of the Court is not to be read mechanically as a Euclid''s Theorem, nor as if it was a statute. (See (1)Quinn v. Leathern 1901 AC 495 ; (2) Ambica Quarry Works v. State of Gujarat and Ors., (1987) 1 SCC 213 (3) Bhavnagar University Vs. Palitana Sugar Mill Pvt. Ltd. and Others, (4) Bharat Petroleum Corporation Ltd. and Anr. v. N. R. Vairamani and another AIR 2004 SC 4778 ; (5) Sarva Shramik Sanghatana (K.V), Mumbai Vs. State of Maharashtra and Others, (6) Government of Karnataka and Ors. v. Gowramma and others AIR 2008 SC 863: 2008 (1) AWC 883 .

In my considered opinion, on the basis of the long incarceration in jail also, the applicant cannot 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 others (LXIII) 2008 ACC 115: 2008 (3) ACR 3216, 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.

For the reasons mentioned hereinabove, the 3rd bail application of the applicant Jai Bhagwan is hereby rejected.

The trial court is directed to conclude the trial of the accused-persons in S.T. No. 1009 of 2006 within a period of six months by making sincere efforts avoiding unnecessary adjournments.

S.S.P., Muzaffarnagar is also directed to depute special messenger to procure the attendance of rest witnesses in S.T. No. 1009 of 2006, State v. Jai Bhagwan and others, pending in the Court of Additional Sessions Judge Court No. 2, Muzaffarnagar after obtaining summons of the witnesses.

The office is directed to send a copy of this order to the Court concerned and S.S.P., Muzaffarnagar within a week for necessary action.